The Chemours Company FC LLC v. United States

Slip Op. 21-21
UNITED STATES COURT OF INTERNATIONAL TRADE
THE CHEMOURS COMPANY FC, LLC,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
AGC CHEMICALS AMERICA, ET AL.,
Defendant-Intervenors.
Before: Timothy M. Reif, Judge
Court No. 18-00174
OPINION
[The Remand Results of the United States International Trade Commission are
sustained in conformity with this opinion.]
Dated: February 22, 2021
Mary J. Alves, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for
plaintiff. With her on the brief were James R. Cannon, Jr., Ulrika K. Swanson and
James E. Randsell.
Karl S. von Schriltz, Attorney-Advisor, United States International Trade
Commission, of Washington, DC, argued for defendant. With him on the brief were
Andrea C. Casson, Assistant General Counsel for Litigation, and Dominic L. Bianchi,
General Counsel.
Jordan C. Kahn, Grunfeld, Desiderio, Lebowitz Silverman & Klestadt LLP, of New
York, NY, for defendant-intervenors PTFE Processors Alliance and Chinese
respondents. With him on the brief was Max F. Schutzman.
Russell A. Semmel, Arent Fox LLP, of Washington, DC, for defendant-intervenor
Gujarat Fluorochemicals Limited. With him on the brief were Matthew M. Nolan, John
M. Gurley and Claudia D. Hartleben.
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Reif, Judge: This action arises from the determinations by the United States
International Trade Commission (“Commission”) in its antidumping and countervailing
duty investigations of Polytetrafluorethylene Resin (“PTFE”) from the People’s Republic
of China (“China”) and India. See Polytetrafluoroethylene Resin from China and India,
Inv. Nos. 701-TA-588 and 731-TA-1392-1393, USITC Pub. 4801 (July 2018) (Final),
ECF No. 33, and Polytetrafluoroethylene Resin from China and India, Inv. Nos. 731-TA-
1392-1393, USITC Pub. 4841 (Nov. 2018) (Final), ECF No. 33 (collectively, “Final
Determinations”). Before the court are the Final Results of Redetermination Pursuant to
Court Remand (“Remand Results”), ECF Nos. 108-09, pursuant to the court’s decision
in Chemours Co. v. United States, 44 CIT __, __, 443 F. Supp. 3d 1315 (2020)
(“Chemours I”). The Commission complied with the court’s instruction and its negative
injury determination is supported by substantial evidence. Accordingly, the court
sustains the remand determination.
PROCEDURAL HISTORY
The court presumes familiarity with the facts of the case as set out in its previous
opinion, Chemours I, ordering remand to the Commission. See Chemours I, 443 F.
Supp. 3d at 1320-22. The court now recounts those facts relevant to the court’s review
of the Remand Results.
On September 28, 2017, plaintiff The Chemours Company FC, LCC
(“Chemours”) filed antidumping and countervailing duty petitions with the United States
Department of Commerce (“Commerce”) and the Commission. In Chemours I, this
court remanded the Commission’s Final Determinations. Id. at 1319-20. The court
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found that the Commission’s post-petition data analysis was unsupported by substantial
evidence and directed the Commission to reconsider the effects of the petition filings on
its analysis. Id. at 1320-22. The Commission filed its Remand Results on August 4,
2020. Views of the Commission, ECF Nos. 108-09 (“Views”). Defendant-Intervenors
commented on the remand determination. Comments on Remand Determination of
PTFE Processors Alliance and Chinese Respondents, ECF No. 111 (“PPA and Chinese
Respondents Br.”). Defendant-Intervenors the PTFE Processors Alliance (“PPA”),
Chinese Respondents 1 and Gujarat Fluorochemicals Limited (“GFL”) filed comments.
Comments on Remand Determination of PTFE Processors Alliance and Chinese
Respondents, ECF No. 112 (“Def.-Intervenors' Br.”). Plaintiff Chemours filed
comments. Plaintiff’s Comments on the Remand Determinations, ECF Nos. 113-14
(“Pl. Br.”).
Defendant-Intervenors PPA and Chinese Respondents replied. Reply to
Comments on Remand Determination of PTFE Processors Alliance and Chinese
Respondents, ECF No. 115 (“PPA and Chinese Respondents Reply Br.”). Defendant-
Intervenor AGC Chemicals Americas, Inc. replied. Reply Comments by Def.-Intervenor
on the U.S. International Trade Commissions’ Remand Results, ECF No. 116 (“AGC
Reply Br.”). Defendant United States replied. Def. United States International Trade
1 The Chinese respondents are Zhejiang Jusheng Fluorochemical Co., Ltd., Shandong
Dongyue Polymer Material Co., Ltd., Shanghai Huayi 3F New Materials Sales Co., Ltd.,
Zhonghao Chenguang Research Institute of Chemical Industry Co., Ltd., Jiangxi Lee &
Man Chemical Ltd., Jiangsu Meilann Chemical Co., Ltd., and China Chamber of
Commerce of Metals, Minerals & Chemical Importers.
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Commission’s Reply to Pl.’s Comments on Remand, ECF Nos. 117-18 (“Def. Reply
Br.”).
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and
28 U.S.C. § 1581(c), which grant the court the authority to review a determination of the
International Trade Commission. The court will uphold the Commission’s
determinations, findings or conclusions unless they are unsupported by substantial
evidence on the record or otherwise not in accordance with the law. 19 U.S.C. §
1516a(b)(1)(B)(i).
DISCUSSION
In Chemours I, this court affirmed in part and remanded in part the Commission’s
original determinations. 443 F. Supp. 3d 1315. The court affirmed several
administrative findings and issued a remand for the Commission to reconsider its
reliance on post-petition data in its price effects analysis. Id. at 1321-34. In its original
determinations, the Commission relied on the trend in prices of the domestic like
product, including for the fourth quarter of 2017, as a key component in its analysis.
Views at 43-48. In Chemours I, the court stated that, “[b]ecause the Commission failed
to address this evidence, it is not clear, based on the Commission’s Views, that the
Commission considered all of the evidence on the record.” 443 F. Supp. 3d at 1329.
The court stated that the Commission’s determination “must address and provide an
explanation for how [the import price data] are consistent with the Commission’s
decision not to discount the data for the fourth quarter of 2017.” Id. at 1329.
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Following the court’s remand, the Commission complied with this court’s
instructions, so the court now affirms the Commission’s determinations. As instructed
by this court, the Commission examined the record evidence relating to post-petition
data. Remand Results at 9-14. Specifically, in its Remand Results, the Commission
found that “[s]ubject import prices for product 1 from China increased throughout 2017,
beginning in the first quarter,” which buttressed the Commission’s conclusion that
subject import prices had begun to increase prior to the filing of the petition. Remand
Results at 12 (citing CR/PR at Table V-3). The Commission also found that “subject
import prices for sales of products 2 through 5 began to increase in the first and second
quarters of 2017.” Id. It was “[o]nly subject import prices for product 1 from India
[which] began to increase after the third quarter of 2017.” Id.
Altogether, the Commission noted, “[t]hese data are consistent with data showing
that domestic prices also began to increase in early 2017, prior to the filing of the
petitions, as demand recovered from the drop in 2016.” Id. Any increased prices for
domestic product and subject imports in the fourth quarter of 2017 represented “a
continuation of existing price trends rather than a reaction to the filing of the petitions.”
Id. Thus, the Commission again determined not to accord reduced weight to post-
petition data. Id. This analysis demonstrates that the Commission sufficiently
addressed in its price effects analysis this court’s concern with the post-petition data
pertaining to prices of subject imports.
Despite the Commission’s analysis of the data, plaintiff claims that the
Commission’s remand determinations “fail[] to address the issue presented by Section
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1677(E)(ii) in the context of the statutory scheme” and are thus insufficient to address
the court’s concern. Pl. Br. at 7-21. Plaintiff notes that “the statute recognizes that
injury determinations involve the interplay of numerous variables and depend on
conditions of competition that may differ among industries and even vary over a specific
period.” Id. at 7. “Price ‘effects’ calls for the Commission to do more than describe the
trend in subject import prices.” Id. at 8. The plaintiff argues that the Commission should
not describe post-petition effects “in isolation,” but rather examine the “interplay among
demand, volume, price and the resulting (or not) impact on the domestic industry.” Id.
at 9.
The Commission retains significant discretion in weighing economic factors in its
review; however, the Commission’s analysis must abide by certain well-established
guideposts. Metallverken Nederland B.V. v. United States, 14 CIT 481, 487, 744 F.
Supp. 281, 286 (1990). First, the Commission is required to “consider all ‘pertinent
evidence’ on the record of an investigation before reaching its final result.” AWP Indus.,
Inc. v. United States, 35 CIT 774, 793, 783 F. Supp. 2d 1266, 1285 (2011) (quoting
Roses, Inc. v. United States, 13 CIT 662, 665, 720 F. Supp. 180, 183 (1989)). As
noted, here the court concluded that the Commission’s original determination did not
support the conclusion that the Commission considered all pertinent evidence in this
case. The court’s remand discussed how the Commission failed to consider “pertinent
evidence” pertaining to post-petition trends of import prices in the U.S. market. Id.;
Chemours I, 443 F. Supp. 3d at 1328-31. In this way, the remand demonstrated how
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the record of the case successfully rebutted the presumption that the Commission had
considered all the evidence. Id.
The second guidepost is that “while the [Commission] need not address every
argument and piece of evidence . . . it must address significant arguments and evidence
which seriously undermines [sic] its reasoning and conclusions.” Altx, Inc. v. United
States, 25 CIT 1100, 1117-18, 167 F. Supp. 2d 1353, 1374 (2001). As the Statement of
Administrative Action to the Uruguay Round Agreements Act makes clear, the
Commission must “specifically reference . . . factors and arguments that are material
and relevant, or must provide a discussion or explanation in the determination that
renders evident the agency's treatment of a factor or argument.” Statement of
Administrative Action, accompanying H.R. Rep. No. 103–826(I), at 892, reprinted in
1994 U.S.C.C.A.N. 4040, 4216. Third, the Commission must “articulate a rational
connection between the facts found and the choice made.” Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 167-68 (1962). In sum, the statute and case law in this
area afford substantial, but not unbounded, discretion to the Commission to set forth
and explain its analysis.
Consistent with the foregoing, a more clear and connected analysis by the
Commission would have been helpful in this case, notwithstanding the Commission’s
protestations concerning its ability to weigh the evidence of record.
Nonetheless, the court finds that such an analysis, while useful in explaining its
decision to the parties and the public, was not necessary here. As the court discussed
in Chemours I, “[t]he Commission has wide discretion in deciding how to weigh post-
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petition information.” 443 F. Supp. 3d at 1328 (citing Nitrogen Solutions Fair Trade
Comm. v. United States, 19 CIT 86, 101, 358 F. Supp. 2d 1314, 1329 (2005)). The
court [asked] the Commission to “explain its lack of findings with respect to subject
import prices in the Commission’s post-petition analysis,” 443 F. Supp. 3d at 1329-30,
and the Commission did so. As Defendant-Intervenors point out in their brief, in its
Remand Results, the Commission “identif[ied] substantial corroborating data for its
findings with respect to prices.” PPA and Chinese Respondents Reply Br. at 10 (citing
Chemours I, 443 F. Supp. 3d at 1322). Whether addressing these specific data points
in a different manner would have altered the conclusion of the Commission’s analysis is
not the question before the court. As defendant points out, “the focal point on appeal is
not what methodology Plaintiffs would prefer, but on whether the methodology actually
used by the Commission was reasonable.” Def. Br. at 18 (quoting Shandong TTCA
Biochemistry Co. v. United States, 35 CIT 545, 559, 774 F. Supp. 2d 1317, 1329-30
(2011) (citations and internal quotations omitted)). For this reason, the court finds no
basis to invalidate the analysis relating to post-petition data in the Commission’s
Remand Results.
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CONCLUSION
For the foregoing reasons, the Commission’s remand determination is supported
by substantial evidence and in accordance with law and is, therefore, sustained.
Judgment will enter accordingly.
/s/ 	Timothy M. Reif
Timothy M. Reif, Judge
Dated:
New York, New York
February 22, 2021
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