Shandong TTCA Biochemistry Co., Ltd. v. U.S.

710 F.Supp.2d 1368

32 ITRD 1519

SHANDONG TTCA BIOCHEMISTRY CO., LTD. et al., Plaintiffs,

v. UNITED STATES, Defendant,andArcher Daniels Midland Co. et al., Defendant-Intervenors.

Slip Op. 10-56.

Court No. 09-00241.

United States Court of International Trade.

May 14, 2010.

Troutman Sanders LLP (Julie Clark Mendoza) for Plaintiffs Shandong Biochemistry TTCA Co., Ltd. et al.

James M. Lyons, General Counsel, Andrea C. Casson, Assistant General Counsel for Litigation, and Mary Jane Alves, Attorney Advisor, Office of the General Counsel, U.S. International Trade Commission, for Defendant United States.

Sidley Austin, LLP (Neil R. Ellis) for Defendant-Intervenors Archer Daniels Midland Company, Cargill, Incorporated, and Tate & Lyle Americas LLC.

Vorys Sater Seymour and Pease LLP (Frederick P. Waite and Kimberly R. Young) for Proposed Plaintiff-Intervenor Jungbunzlauer Canada Inc.

OPINION

WALLACH, Judge.

IINTRODUCTION

Jungbunzlauer Canada Inc. ("JBL") seeks to intervene as a matter of right in the instant action. See Motion to Intervene as a Matter of Right ("JBL's Motion"). The action challenges material injury determinations by the U.S. International Trade Commission ("ITC") in antidumping and countervailing duty investigations of citric acid and certain citrate salts (together "citric acid") from the People's Republic of China ("China"). The action does not challenge the material injury determination by ITC in the antidumping duty investigation of citric acid from Canada. The court has jurisdiction pursuant to 19 U.S.C. § 1581(c).

JBL's Motion is DENIED. JBL is not an interested party to either of the investigations of citric acid imports from China even though it is an interested party to the investigation of citric acid imports from Canada. Accordingly, it cannot intervene in the instant action.

IIBACKGROUND

On April 14, 2008, three domestic producers of citric acid petitioned the U.S. Department of Commerce ("Commerce") and ITC for the imposition of antidumping duties on imports of citric acid from Canada and the imposition of both antidumping and countervailing duties on imports of citric acid from China. See Citric Acid and Certain Citrate Salts from Canada and the People's Republic of China: Initiation of Antidumping Duty Investigations, 73 Fed.Reg. 27,492, 27,492 (May 13, 2008) ("Notice of AD Investigations"); Notice of Initiation of Countervailing Duty Investigation: Citric Acid and Certain Citrate Salts from the People's Republic of China, 73 Fed.Reg. 26,960, 29,960 (May 12, 2008) ("Notice of CVD Investigation").

In response, ITC "instituted" an antidumping duty investigation of imports from Canada, an antidumping duty investigation of imports from China, and a countervailing duty investigation of imports from China. See Citric Acid and Certain Citrate Salts From Canada and China, 73 Fed.Reg. 21,650, 21,650 (April 22, 2008) ("ITC Notice of Investigations"). Commerce similarly "initiat [ed]" three investigations. See Notice of AD Investigations, 73 Fed.Reg. at 27,492; Notice of CVD Investigation, 73 Fed.Reg. at 26,960.¹

Following affirmative determinations by Commerce, ITC proceeded to make a final determination as to material injury for each of the three investigations. See U.S. International Trade Commission, Citric Acid and Certain Citrate Salts from Canada and China, Investigation Nos. 701-TA-456 and 731-TA-1151-1152 (Final), Publication 4076 (May 2009) ("Final Report") at 1; see also 19 U.S.C. §§ 1671d(b), 1673d(b). In making these determinations, ITC considered three statutory factors:

(I) the volume of imports of the subject merchandise, (II) the effect of imports of that merchandise on prices in the United States for domestic like products, and (III) the impact of imports of such merchandise on domestic producers of domestic like products....

19 U.S.C. § 1677(7)(B)(i); see Final Report at 15-37. ITC considered these factors by "cumulatively assess[ing] the volume and effects of imports of the subject merchandise" from Canada and China. 19 U.S.C. § 1677(7)(G); see Final Report at 15.²

As a result of this cumulative assessment, inter alia, ITC determined that "an industry in the United States is materially injured by reason of imports from Canada and China of citric acid and certain citrate salts ... that have been found by [Commerce] to be subsidized by the Government of China and to be sold in the United States at less than fair value (LTFV)." Final Report at 1 (footnote omitted). ITC announced these determinations in a single paragraph of a single publication. See id.

After receiving notification of ITC's determinations, Commerce issued two antidumping duty orders and one countervailing duty order. See Citric Acid and Certain Citrate Salts from Canada and the People's Republic of China: Antidumping Duty Orders, 74 Fed.Reg. 25,703, 25,703 (May 29, 2009) ("Notice of AD Orders"); Citric Acid and Certain Citrate Salts From the People's Republic of China: Notice of Countervailing Duty Order, 74 Fed.Reg. 25,705, 25,705 (May 29, 2009).

Plaintiffs brought the instant action challenging "the final affirmative injury determination of [ITC] concerning imports from China of citric acid ... from [China]." Complaint, Docket No. 9, ¶ 1. "Plaintiffs are Chinese producers and exporters to the United States of citric acid from China." Id. ¶ 3.³

The Procter & Gamble Manufacturing Company ("P & G") brought a separate action challenging "the final affirmative injury determination by [ITC] in the antidumping and countervailing duty investigations of" subject merchandise from Canada and China. Complaint, Court No. 09-00242 Docket No. 8, ¶ 1. P & G is "an importer of [subject merchandise] from Canada." Id. ¶ 5.

In August 2009, the court consolidated these actions under Shandong Biochemistry TTCA Co. v. United States, Consol. Court No. 09-00241. See August 11, 2009 Order, Docket No. 18. Later that month, JBL, which describes itself as "the sole producer of citric acid in Canada," moved to intervene in the consolidated action. JBL's Motion at 1. In October 2009, the court dismissed P & G's action in response to a stipulation of dismissal filed by P & G. See October 1, 2009 Order of Dismissal, Docket No. 39.

IIISTANDARD OF REVIEW

"On timely motion, the court must permit anyone to intervene who ... is given an unconditional right to intervene by a federal statute." USCIT Rule 24(a); see 28 U.S.C. § 2631(j)(1)(B). The court-not Commerce or ITC-determines this class of intervenors. See USEC Inc. v. United States, 27 CIT 489, 510, 259 F.Supp.2d 1310 (2003) (subsequent history omitted).

IVDISCUSSION

JBL cannot intervene in the instant action because it is not an interested party to either of the two investigations that produced the determinations challenged by this action. See infra Part IV.A. The exclusion of JBL from this action is further supported by the court's lack of jurisdiction over imports for which JBL seeks relief. See infra Part IV.B.

AJBL Cannot Intervene Because It Is Not An Interested Party

JBL cannot intervene in the instant action because it is not an interested party to either of the two investigations that produced the determinations challenged by this action.

"[I]n a civil action under [19 U.S.C. § 1516a], only an interested party who was a party to the proceeding in connection with which the matter arose may intervene, and such person may intervene as a matter of right." 28 U.S.C. § 2631(j)(1)(B). "Interested party" includes "a foreign manufacturer, producer, or exporter ... of subject merchandise." 19 U.S.C. § 1677(9); see 28 U.S.C. § 2631(k)(1).

"Subject merchandise" in this context means "merchandise which is the subject of the investigation." 19 U.S.C. § 1677(9) (1993). The 1994 Uruguay Round Agreements Act ("URAA") introduced the term "subject merchandise," defined it in relevant part as "the class or kind of merchandise that is within the scope of an investigation," and substituted it throughout the antidumping and countervailing duty statutes for variants of both "merchandise which is the subject of the investigation" and "class or kind of the merchandise which is the subject of the investigation." See 19 U.S.C. § 1677(25); Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-316 (1994) ("SAA") at 820, reprinted in 1994 U.S.C.C.A.N. 4040, 4161 (characterizing these substitutions as a simplification of nomenclature); compare, e.g., 19 U.S.C. § 1673a(c)(2) (1993) and 19 U.S.C. § 1673d(a)(1) (1993) with 19 U.S.C. § 1673a(c)(2) (1995) and 19 U.S.C. § 1673d(a)(1) (1995).⁴ Prior to its amendment by the URAA, 19 U.S.C. § 1677(9) referred to "merchandise which is the subject of an investigation" rather than "subject merchandise." 19 U.S.C. § 1677(9) (1993). This history clarifies that, for the purpose of defining "interested party," "subject merchandise" includes only that merchandise which is the subject of the investigation.

The key term in this definition is "investigation." ⁵ The antidumping andcountervailing duty statutes do not define this term or otherwise specify the geographic scope of an investigation. See 19 U.S.C. §§ 1671- 1677n.⁶ However, they do demonstrate that a single investigation encompasses a component that is statutorily assigned to Commerce as well as a component that is statutorily assigned to ITC. See, e.g., 19 U.S.C. §§ 1673a (describing the initiation of an antidumping duty investigation), 1673b(a) (describing ITC's role in the preliminary phase of an investigation), 1673d(c)(2) (directing the termination of an investigation following a negative final determination by either Commerce or ITC). Moreover, they contemplate simultaneous investigations of the same type of product from different countries. In particular, the provision governing material injury determinations states that, if certain conditions are satisfied, ITC:

shall cumulatively assess the volume and effect of imports of the subject merchandise from all countries with respect to

...