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Decisions of the United States Court of International Trade Decisions of the United States Court of International Trade ᭜ Slip Op. 07–16 CELANESE CHEMICALS LTD., Plaintiff,v.UNITED STATES, Defendant, and E.I.DUPONT DE NEMOURS & CO. and CHANG CHUN PETRO- CHEMICAL CO.,LTD., Defendant-Intervenors. Court No. 04–00594 PUBLIC VERSION [Plaintiff’s Motion for Judgment Upon Agency Record granted in part; Negative Preliminary Determination remanded to International Trade Commission.] Dated: January 29, 2007 Greenberg Traurig, LLP (Philippe M. Bruno, Jeffrey S. Neely, Eric Aronson, and Rosa S. Jeong), for Plaintiff. James M. Lyons, General Counsel, U.S. International Trade Commission (Mark B. Rees); for Defendant. Crowell & Moring LLP (Matthew P. Jaffe, Jeffrey L. Snyder, Alexander H. Schaefer, and Erin E. Mikita), for Defendant-Intervenors. OPINION RIDGWAY, Judge: In this action, plaintiff Celanese Chemicals Ltd. contests the nega- tive preliminary determination reached by the U.S. International Trade Commission in an antidumping duty investigation of polyvinyl alcohol imports from Taiwan. See Polyvinyl Alcohol From Taiwan, 69 Fed. Reg. 63,177 (Oct. 29, 2004) (notice of preliminary determina- tion).1 Pending before the Court are Plaintiff’s Motion for Judgment 1 The Commission’s determination, public versions of the views (majority and dissent- ing), and the staff report in this investigation are published, with business proprietary in- formation redacted, in Polyvinyl Alcohol from Taiwan, Inv. No. 731–TA–1088 (Preliminary), USITC Pub. 3732 (Oct. 2004) (‘‘Preliminary Determination’’) (available at https:// eofpub.usitc.gov/edis-efile/app as document number 217696). The administrative record consists of three sections, designated ‘‘Public’’ (P.D. ), ‘‘Confidential’’ (C.D. ), and ‘‘Privileged,’’ respectively. The ‘‘Public’’ section includes copies of documents from the ‘‘Confi- 29 30 CUSTOMS BULLETIN AND DECISIONS, VOL. 41, NO. 14, MARCH 28, 2007 Upon the Agency Record and supporting briefs, in which Celanese contends that the Commission’s determination in this matter was ‘‘arbitrary, capricious, an abuse of discretion and not in accordance with law,’’ and which requests that the matter be remanded to the agency. See generally Brief in Support of Plaintiff’s Motion for Judg- ment Upon the Agency Record (‘‘Pl.’s Brief’’); Reply Brief in Further Support of Plaintiff’s Motion for Judgment Upon the Agency Record (‘‘Pl.’s Reply Brief’’). The Commission and Defendant-Intervenors – E.I. DuPont de Nemours & Co. and Chang Chun PetroChemical Co., Ltd. – oppose Celanese’s motion, and maintain that the Commission’s determina- tion should be sustained in all respects. See generally Memorandum of Defendant United States International Trade Commission in Op- position to Plaintiff’s Motion for Judgment on the Agency Record (‘‘Def.’s Brief’’); Memorandum of Points and Authorities in Opposi- tion to Motion for Judgment on Agency Record (‘‘Def.-Ints.’ Brief’’). For the reasons set forth below, Plaintiff’s Motion for Judgment Upon the Agency Record is granted in part, and this action is re- manded to the Commission for further proceedings not inconsistent with this opinion. I. The Facts of The Case As the Commission now sees it, the antidumping investigation of imports of polyvinyl alcohol (‘‘PVA’’)2 from Taiwan at issue here ‘‘pit- ted...two...[leading] domestic producers – indeed the only pro- ducers that supply to the U.S. commercial market – against one an- other.’’ Def.’s Brief at 2. In its September 2004 petition triggering that investigation, Celanese alleged that the domestic industry – which Celanese sought to define to include only itself – was materi- ally injured or threatened with material injury by reason of imports of PVA from Taiwan. dential’’ section with all confidential information redacted. The publicly available version of the Commission’s views included in the preliminary de- termination is cited as the ‘‘Preliminary Determination.’’ The confidential version of the Commission’s views included in the administrative record as C.D. 65 is cited as ‘‘Conf. Comm. Views.’’ And the confidential staff report that accompanied the Commission’s find- ings, which is included in the administrative record as C.D. 34 (original), as amended by C.D. 35 (Mem. INV–BB–127 (Oct. 18, 2004)) and C.D. 43 (Mem. INV–BB–130 (Oct. 21, 2004)), is cited as the ‘‘Staff Report.’’ 2 Polyvinyl alcohol (‘‘PVA’’) is a water-soluble synthetic polymer. As the Commission staff explains: ‘‘PVA is used primarily as an intermediate product in the production of PVB [poly- vinyl butyral], which is an adhesive used in the manufacture of automotive safety glass and load-resistant architectural glass. PVA is also used in the textile and paper industries in sizing formulations; as a binder in adhesive and soil binding formulations; and as an emul- sion or polymerization aid in colloidal suspensions, water-soluble films, cosmetics, and joint compounds.’’ Staff Report at I–6. U.S. COURT OF INTERNATIONAL TRADE 31 A. Prior Antidumping Investigations PVA had been the subject of antidumping investigations be- fore. The first antidumping petitions against PVA imports were filed in 1995, by Air Products and Chemicals, Inc. (the predecessor of Celanese). The Commerce Department subsequently published anti- dumping duty orders against PVA imports from China, Japan, and Taiwan, in late March 1996. However, those orders were revoked ef- fective May 14, 2001, due to domestic producers’ failure to partici- pate in the five-year sunset reviews. Staff Report at I–3. In early September 2002, Celanese and DuPont filed a second se- ries of antidumping petitions – this time, against PVA imports from China, Germany, Japan, and Korea. The 2002 petitions resulted in the issuance of an antidumping duty order against PVA imports from Japan in early July 2003. Antidumping duty orders against PVA im- ports from China and Korea followed three months later. Staff Re- port at I–3 to I–4. The Commission incorporated ‘‘certain public fac- tual findings and analysis from these previous investigations... including information about the product, purchasing behavior, the domestic and foreign producers, and other conditions of competition . into the record of this investigation.’’ Preliminary Determination at 7; Conf. Comm. Views at 10. In this action, Celanese makes much of the fact that the Period of Investigation (‘‘POI’’) for the proceeding here at issue (full calendar years 2001, 2002, and 2003, and the first half of 2004) overlaps for two years with the 2003 investigations (which covered full calendar years 2000, 2001, and 2002). Pl.’s Brief at 6. The Commission and Defendant-Intervenors, in turn, emphasize the differences between the two investigations – the year and a half that do not overlap, as well as the different subject countries. Def.’s Brief at 61–64; Def.- Ints.’ Brief at 45–49. B. The Investigation At Issue The instant action involves an antidumping petition against PVA3 imports from Taiwan, which Celanese filed in early September 2004, and which fellow domestic producer DuPont opposed. As the initial step in a preliminary injury investigation, the Commission first defines the ‘‘domestic like product’’ and the ‘‘industry.’’ The Com- 3 Commerce identified the imported merchandise within the scope of the investigation as consisting of all PVA products ‘‘hydrolized in excess of 80 percent, whether or not mixed or diluted with commercial levels of defoamer or boric acid. PVA in fiber form is not included....Themerchandise under investigation is currently classifiable under subhead- ing 3905.30.00 of the Harmonized Tariff Schedule of the United States (‘‘HTSUS’’). Al- though the HTSUS subheading is provided for convenience and customs purposes, the writ- ten description of the merchandise under investigation is dispositive.’’ Initiation of Antidumping Duty Investigation: Polyvinyl Alcohol from Taiwan, 69 Fed. Reg. 59,204 (Oct. 4, 2004). 32 CUSTOMS BULLETIN AND DECISIONS, VOL. 41, NO. 14, MARCH 28, 2007 mission declared a ‘‘single domestic like product defined coexten- sively with [the] scope of the investigation’’ to consist of ‘‘all PVA hydrolized in excess of 80 percent, whether or not mixed or diluted with commercial levels of defoamer or boric acid, but not including PVA in fiber form.’’ Preliminary Determination at 7–8, 11; Conf. Comm. Views at 10–11, 15. The Commission defined the domestic industry as all producers of the domestic like product: petitioner Celanese; E.I. du Pont de Nemours and Co. (DuPont); and a third producer, Solutia Inc. (Solutia). Preliminary Determination at 11; Conf. Comm. Views at 10, 16. Only one firm, defendant-intervenor Chang Chun PetroChemical Co., Ltd. (‘‘CCPC’’), is known to have produced PVA in Taiwan during the period of investigation. Preliminary Determi- nation at 8; Conf. Comm. Views at 10–11. The Commission did not exclude any party under the related par- ties provision of the Act, 19 U.S.C. § 1677(4)(B) (2000). Preliminary Determination at 12–14; Conf. Comm. Views at 17–20. The Commis- sion considered whether to exclude DuPont who, in addition to pro- ducing PVA domestically, also imported subject PVA from Taiwan during the period of investigation. Celanese argued that DuPont should be considered a related party due to its imports of PVA from Taiwan and its relationship with CCPC. However, while the Com- mission found DuPont was a related party by virtue of its imports of PVA from Taiwan, it did not find any direct or indirect control rela- tionship between DuPont and CCPC. Preliminary Determination at 13; Conf. Comm. Views at 18. In the end, the Commission concluded it was not appropriate to define the domestic industry to exclude DuPont, based on, inter alia, the company’s ‘‘share of domestic pro- duction, the ratio of its imports to such production, and the impact of its importing on its domestic production operations.’’ Def.’s Brief at 11 (citing Conf. Comm. Views at 17–20). Of the three known producers of PVA in the United States, plain- tiff Celanese is the [ ] domestic producer of PVA; defendant- intervenor DuPont is the [ ] U.S.
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