ITC Injury Determination Based on Fujifilm's Failure to 'Surrender' Sales to Kodak, Exporter Says
Printing plate exporter Fujifilm, which also manufactures its product in the United States, argued again Nov. 17 that the International Trade Commission had failed to properly take into account a manufacturing plant it shuttered mid-injury investigation that caused it to increase its imports (Fujifilm North America Corp. v. United States, CIT # 24-00251).
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It said the ITC’s decision “rested largely on the fact that when Fujifilm closed its U.S. factory, Fujifilm retained its existing customers rather than surrender them entirely to Kodak.”
Fujifilm agreed that its domestic sales decreased over the course of the investigation at the same time its imports increased, but argues that was the result of its decision to shut down a manufacturing plant in Greenwood, South Carolina. The ITC was wrong to use that data to instead find that Fujifilm’s imports had hurt its domestic production, it argued (see 2507240003).
“The record shows that Fujifilm sold the same models to the same purchasers, albeit with different countries of origin, in the same year and in consecutive years,” it said in its Nov. 17 brief. “That is how an orderly wind down and transition works.”
The statute requires that the ITC, under 19 U.S.C. 1677(4)(B), must decide whether “appropriate circumstances” exist to exclude a domestic producer from an injury investigation in such situations, it said. Instead, it claimed, the commission has “replace[d] this required factual inquiry with a strict liability rule that anytime a company closes its U.S. factory and begins importing from its other facilities there is necessarily a distortion.”
Fujifilm said that it did pass the commission’s “shield” test -- a test that requires a U.S. producer be “shielded” from competition with an affiliated exporter to be excluded as a domestic producer in an injury investigation.
Until the Greenwood plant closed, both its products and products in Fujifilm’s Japanese facilities were sold by the same entity, the exporter said. That meant the ITC’s determination that the entity “was intentionally competing with itself” was “both logically absurd and factually baseless,” it said.
Further, it said, no sales or revenue evidence indicates Greenwood was hurt by imports.
The exporter also argued that the ITC failed to conduct several other important analyses: The commission didn’t adequately consider whether the increase in volume of printing plate imports was “significant,” and it didn’t examine whether Fujifilm’s imports caused price depression or suppression.
Regarding volume, Fujifilm said that the ITC was required to evaluate the “significance” of an increase in imports by taking into account the conditions of competition. The U.S. claimed that the ITC had done just that; but the commission must apply its findings regarding competition to its analysis, not “simply describ[e] various conditions of competition in isolation,” it said.
As for the ITC’s price analysis, the exporter said the ITC simply didn’t address the “effect” of imports on domestic prices. To do so, the commission must consider whether imports resulted in either price depression or price suppression, it said. The ITC did neither, it claimed.
And it argued that the ITC was wrong to conclude that Kodak, a U.S. manufacturer and the other main printing plate producer on the market, was impacted because it could have made up the difference in lost domestic production after Fujifilm shut down the Greenwood plant. Kodak's revenue and profits both improved during the investigation period, it pointed out. Fujifilm merely "maintained [volume] to its existing customers" by switching to imports, it said, which "does not provide a permissible legal or factual basis to find injury."