CP Kelco US, Inc. v. United States

24 F. Supp. 3d 1337, 36 I.T.R.D. (BNA) 1127, 2014 Ct. Intl. Trade LEXIS 128, 2014 WL 5487792
CourtUnited States Court of International Trade
DecidedOctober 22, 2014
DocketSlip Op. 14-123; Court No. 13-00287
StatusPublished

This text of 24 F. Supp. 3d 1337 (CP Kelco US, Inc. v. United States) is published on Counsel Stack Legal Research, covering United States Court of International Trade primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CP Kelco US, Inc. v. United States, 24 F. Supp. 3d 1337, 36 I.T.R.D. (BNA) 1127, 2014 Ct. Intl. Trade LEXIS 128, 2014 WL 5487792 (cit 2014).

Opinion

OPINION

GOLDBERG, Senior Judge:

Plaintiff CP Kelco U.S. (“Kelco”), a domestic manufacturer of xanthan gum and petitioner in the antidumping proceeding that underlies this case, challenges the final determination of the International Trade Commission (the “Commission”) that domestic industry suffered no present material injury by reason of subject imports. Xanthan Gum from Austria and China, 78 Fed. Reg. 43,226 (ITC July 19, 2013) (notice of final determination); Xanthan Gum from Austria and China, USITC Pub. 4411, Inv. Nos. 731-TA-1202-1203 (July 2013) (final determination) (including public versions of both the “Views of the Commission” and the “Staff Report,” both hereinafter cited by reference to the confidential versions in the administrative record). Kelco’s challenge takes the form of a motion for judgment on the • agency record, brought pursuant to US-CIT Rule 56.2.

For the reasons that follow, the court sustains the Commission’s determination.

BACKGROUND

On June 5, 2012, Kelco filed a petition with the Department of Commerce and with the Commission. Kelco alleged that less-than-fair-value imports from Austria and China were materially injuring domestic industry, and were also threatening injury in the future. Xanthan Gum from Austria and China, 77 Fed. Reg. 34,997, 34,997-98 (ITC June 12, 2013) (initiation of investigation). When such petitions are filed, the Commission’s responsibility is to determine whether the petitioner or domestic industry has actually been, or will likely be, injured. 19 U.S.C. § 1673d(b) (2006). (The Department of Commerce is responsible for making the prior determination that less-than-fair-value importing has or has not occurred. Id.) After a hearing and briefing on the matter, the Commission concluded that domestic industry was not suffering material injury, and was only threatened with material injury by those imports emanating from China. Views of the Commission (“Views”) at 3, 55-58, 60, CD 2-197 (Aug. 6, 2013), ECF No. 17 (Nov. 4, 2013). The Commission explained this determination in its customary Views of the Commission report. Kel-co challenges the Commission’s final determination, specifically the finding of no present material injury. Pl.’s Mot. for J. [1340]*1340on Agency R. 1-3, ECF No. 25 (“Pl.’s Br.”).

Before reaching Kelco’s specific claims, it is helpful to first foreground those claims with domestic industry, the Commission is required to consider three factors: volume of subject imports, the price effects of such imports, and the impact of such imports on domestic producers. 19 U.S.C. § 1677(7)(B)(i)(I)-(III). No one of the statutory factors need be dispositive. See Copperweld Corp. v. United States, 12 CIT 148, 156, 682 F.Supp. 552, 561-62 (1988) (Commission is free to assign “to a factor a varying degree of significance depending upon the facts of a particular case”). The Commission must also check whether the filing of the antidumping petition caused a post-petition change in any of the factors, the theory being that filing can chill less-than-fair-value importing and hide injury. 19 U.S.C. § 1677(7)(I). If the Commission finds post-petition effects, it has discretion to discount the post-petition data in order to reach an accurate injury determination. Id.

The Commission structured the Views of the Commission to align with this statutory framework. It considered each factor individually and then post-petition effects before weighing the factors together and concluding that domestic industry had suffered no material injury.

I. Subject-Import Volume

The Commission’s directive in considering subject-import volume is to evaluate “whether the volume of imports of the merchandise, or any increase in that volume, either in absolute terms or relative to production or consumption in the United States, is significant.” 19 U.S.C. § 1677(7)(C)(i). Kelco argued in administrative briefing that domestic industry had lost market share to subject imports in three out of five end-use market segments: consumer applications, food and beverage, and industrial applications. According to Kelco, the only reason that domestic industry did not lose market share at the market-wide level was that these segment-specific losses were offset by a market-share gain in the oilfield segment. Pre-hr’g Br. at 19, CD 156 (May 14, 2013), ECF No. 17 (Nov. 4, 2013).1 Kelco further argued that domestic industry’s static overall market share was itself bad news, because apparent domestic consumption had risen, and domestic industry should have captured a preferential share of this growth. See Post-hr’g Br. at 3, CD 2-170;174 (May 30, 2013), ECF No. 17 (Nov. 4, 2013).2

In the Views of the Commission, the Commission acknowledged that subject-import volume was significant under the statute and had increased in absolute terms. Views at 36-37. The Commission nonetheless emphasized that subject-import market share had remained relatively stable at the market-wide level, though differing trends had manifested in differ[1341]*1341ent market segments. Id. at 36-37 & n. 142.3

II. Price Effects

The Commission’s statutory task in evaluating price effects has two prongs: The Commission must examine both whether there has been price underselling in the United States and also whether imports have led to price depression or price suppression. 19 U.S.C. § 1677(7)(C)(ii).4 In administrative briefing, Kelco demonstrated underselling. Post-hr’g Br. at 4-6. Kelco also argued price suppression. Id. Kelco’s method for detecting price suppression was to compare raw-materials costs to net sales (“NS”) values, on the theory that any increase in raw-materials costs not mirrored in increased NS values showed price suppression. Pursuant to this theory, Kelco provided evidence that increases in raw-materials costs had indeed outstripped NS-values gains, and that these increases would have been more noticeable had factory costs not decreased. Id. at 4-5. Kelco also noted that this trend was even more acute with respect to domestic industry’s domestic sales, where NS average unit values (“AUVs”) had actually decreased slightly (while raw-materials costs had still increased). Id.

The Commission, in its analysis of price effects, acknowledged subject importers’ underselling. Views at 47, But, looking to price depression and price suppression, the Commission concluded that the former was impossible, on grounds that domestic prices had generally [[Confidential Data Deleted ]]. Id. at 48 (citing Staff Report at V-6, V-7 tbls. V-l to V-16, CD 2-179 (June 11, 2013), ECF No. 17 (Nov. 4, 2013)). The Commission further concluded that market-wide prices had not been suppressed, basing this conclusion on patterns in the COGS/NS ratio5 dur[1342]

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24 F. Supp. 3d 1337, 36 I.T.R.D. (BNA) 1127, 2014 Ct. Intl. Trade LEXIS 128, 2014 WL 5487792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cp-kelco-us-inc-v-united-states-cit-2014.