group of producers and exporters of subject merchandise from Korea (“Korean Respondents”);10 (2) two producers and exporters of subject merchandise from Indonesia (“Indonesian Respondents”);11 and (3) a group of producers and exporters of subject merchandise from China, and an importer, Unisource
Worldwide, Inc. (“Chinese Respondents”).12
In addition, the trade association Printing Industries of
America, Inc. (“PIA”) and an importer, Ekman & Co., Inc. (“Ekman”) filed postconference submissions, but did not participate in the staff conference.
DOMESTIC LIKE PRODUCT
To determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury by reason of imports of the subject merchandise, the Commission first defines the “domestic like product” and the “industry.”13 Section 771(4)(A) of the Tariff Act of 1930, as amended (“the Act”), defines the relevant domestic industry as the “producers as a [w]hole of a domestic like product, or those producers whose collective output of a domestic like product
constitutes a major proportion of the total domestic production of the product.”14
In turn, the Act defines
“domestic like product” as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation.”15
The decision regarding the appropriate domestic like product(s) in an investigation is a factual determination, and the Commission has applied the statutory standard of “like” or “most similar in characteristics and uses” on a case-by-case basis.16 No single factor is dispositive, and the Commission may consider other factors it deems relevant based on the facts of a particular investigation.17 The Commission looks for clear dividing lines among possible like products, and disregards minor variations.18 Although the Commission must accept the determination of the U.S. Department of
10 Korean Respondents are the Korea Paper Manufacturers’ Association and its members EN Paper; Hankuk Paper Mfg. Co., Ltd.; Hansol Paper Co., Ltd.; Hongwon Paper Mfg. Co., Ltd.; Kyesung Paper Co., Ltd.; Moorim Paper Co., Ltd.; and Namhan Paper Co., Ltd.
Indonesian Respondents are PT. Pindo Deli Pulp and Paper Mills, and PT. Pabrik Kertas Tjimi Kimia Tbk.
12 Chinese Respondents are Gold East Paper (Jiangsu) Co., Ltd.; Gold Huasheng Paper (Suzhou Industry Park) Co., Ltd.; Shandong Chenming Paper Holdings Ltd.; and Shandong Sun Paper Industry Joint Stock Co.
19 U.S.C. § 1677(4)(A).
19 U.S.C. § 1677(10).
16 See, e.g., NEC Corp. v. Dep’t of Commerce, 36 F. Supp.2d 380, 383 (Ct. Int’l Trade 1998); Nippon Steel Corp. v. United States, 19 CIT 450, 455 (1995); Torrington Co. v. United States, 747 F. Supp. 744, 749 n.3 (Ct. Int’l Trade 1990), aff’d, 938 F.2d 1278 (Fed. Cir. 1991) (“every like product determination ‘must be made on the particular record at issue’ and the ‘unique facts of each case’”). The Commission generally considers a number of factors including: (1) physical characteristics and uses; (2) interchangeability; (3) channels of distribution; (4) consumer and producer perceptions of the products; (5) common manufacturing facilities, production processes and production employees; and where appropriate, (6) price. See Nippon Steel Corp., 19 CIT at 455 n.4; Timken Co. v. United States, 913 F. Supp. 580, 584 (Ct. Int’l Trade 1996).
See, e.g., S. Rep. No. 249, 96th Cong., 1st Sess., at 90-91 (1979).
18 Nippon Steel Corp., 19 CIT at 455; Torrington Co., 747 F. Supp. at 748-49; see also S. Rep. No. 249 at 90-91 (Congress has indicated that the domestic like product standard should not be interpreted in “such a narrow fashion as to permit minor differences in physical characteristics or uses to lead to the conclusion that the product and article are not ‘like’ each other, nor should the definition of ‘like product’ be interpreted in such a fashion as to prevent