ITC Never Required to Exclude Domestic Producers From Injury Analysis, Petitioner Says
Aluminum printing plate producer Eastman Kodak agreed with the International Trade Commission that exporter Fujifilm’s U.S.-produced products had been injured by Fujifilm's imports (see 2510240049) (Fujifilm North America Corp. v. United States, CIT # 24-00251).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The ITC argued Oct. 20 that Fujifilm, which shut down its Greenwood, South Carolina, plant halfway through the investigation’s review period, hadn’t been able to pass the commission’s “shield” test to exclude domestic producers from its injury calculation. The test requires that a U.S. producer be “shielded” from competition by its affiliation with an exporter. Fujifilm’s domestic production dropped and imports rose after it shut down the plant, showing no such shielding effect existed, the ITC claimed in its brief.
Even if the ITC committed an error -- and the petitioner argued it didn’t -- that error was harmless, Kodak said. The ITC also considered “the counterfactual scenario” and found Kodak would have been injured even if it was the sole domestic producer of aluminum printing plate, it said.
It also said that the ITC has reached a similar conclusion under similar circumstances in another injury investigation, having found previously that when a domestic producer’s “source of supply exit[ed] the market … the domestic industry could have done better.”
But the language of 19 U.S.C. 1677(4)(B) doesn’t require the ITC to exclude parties from a domestic industry at all, Kodak said. The law only grants the commission the discretion to do so, it said.
And Kodak supported the ITC’s finding in regard to imports’ price impacts and volume.
Specifically, regarding price impacts, it said that the ITC had recognized Kodak chose to use “a ‘smart revenue’ strategy” during 2022 by "shifting from ‘chasing low-price sales … to pursuing sales where it could earn a reasonable return.’” That strategy resulted in a “modest” increase in revenue while Kodak’s production declined, it said.
Had Fujifilm’s imports not hit the market, Kodak would have experienced even better growth, it claimed. And indicators such as U.S. shipments, production and capacity all dropped faster than the rate of U.S. consumption, Kodak said.
And regarding the ITC’s volume finding, it said that the commission based its finding of significance on more than just the fact that imports increased over time. The ITC looked to specific other indicators such as “the year-to-year changes of such imports” and the increasing market share the imports picked up, it said.
The commission also wasn’t required to discuss the closure of the Greenwood facility in its volume analysis, Kodak said. The trade court has previously found that the ITC doesn’t have to mention competition conditions in its analysis, either, it observed.
And the ITC didn’t need to mention the argument because it isn’t required to “discuss each argument or fact presented by a party,” it said.
“Accordingly, upon rejecting Fujifilm's proposed definition of the domestic industry as excluding Fujifilm's Greenwood facility, the Commission reasonably proceeded to assess the volume of subject imports based on the record evidence,” it said.