Rulings, remedies and court proceedings for customs and trade professionals

CIT Sends Back ITC's Failure to Give Russian Exporter Chance to Comment on Negligibility Analysis

The International Trade Commission failed to give Russian exporter PAO TMK a chance to comment on issues in the International Trade Commission's negligibility analysis as part of the injury proceeding on seamless pipe from South Korea, Russia and Ukraine, the Court of International Trade ruled. In an Oct. 12 opinion made public Oct. 20, Judge M. Miller Baker said TMK should be able to submit comments on the commission's sole reliance on questionnaire data from one unnamed company, "Company A," on goods from Germany and another unnamed company, "Company B," on goods from Mexico.

In the proceeding, a prehearing staff report said the Russian imports were below the statutory negligibility threshold. However, after three respondents revised their responses recategorizing some imports from non-subject countries as non-seamless, the Russian imports barely jumped above the threshold -- a decision that ultimately led to an affirmative injury determination.

TMK launched its judicial case arguing, in part, the commission failed to capture all imports from Germany and Mexico in its negligibility analysis. Despite the fact CBP data showed several companies imported seamless pipe from Germany and Mexico, the ITC only relied on questionnaire data from Company A "as to Germany" and Company B "as to Mexico." The U.S. said TMK waived the issue by not raising it at the ITC, but Baker found this not to be the case since the commission made it clear it was only using these companies' data for the two countries after the period for comments had closed.

Baker also remanded the ITCs' acceptance of Company A's questionnaire while rejecting unnamed "Company C's" questionnaire. The ITC noted in- and out-of-scope imports from Germany from the two companies in their revised questionnaires exceeded the total amount listed in the official statistics. As a result, the ITC used the companies' initial questionnaire responses. Company A's initial response disclosed in-scope imports from Germany, while Company C's didn't.

TMK submitted evidence of "in-scope imports that it contends calls Company C's initial questionnaire response into doubt." Baker noted the commission didn't meaningfully address this evidence, remanding the case to the commission to do so.

After noting TMK abandoned its claim that the ITC improperly relied on Company C's data from Argentina and Italy, Baker then ruled on TMK's claim that the ITC's estimate of seamless pipe from Ukraine, which relied on unadjusted official import statistics, ignored unnamed "Company D's" questionnaire response. The exporter said the commission arbitrarily accepted responses from companies A, B and C but not D. Baker noted this claim ignores certain responses that conflicted with official statistics while the other companies' didn't, making the ITC's explanation valid.

The court lastly ruled against TMK in its claim ITC illegally declined to make the necessary determination as to what imports are to be considered as corresponding to the domestic like product. This claim "repackages" the prior claim that the commission improperly accepted companies A, B and C's data while rejecting D's. The ITC "did no such thing," making TMK's "quarrel" be about "how the ITC weighed the questionnaire responses of companies A, B, and C, and that weighing is the Commission’s exclusive province."

(PAO TMK v. United States, Slip Op. 23-150, CIT # 21-00532, dated 10/12/23; Judge: M. Miller Baker; Attorneys: Daniel Cannistra of Crowell & Moring for plaintiff PAO TMK; Madeline Heeren for defendant U.S. government; Elizabeth Drake of Schagrin Associates for defendant-intervenor Vallourec Star, LP)