Importers Tell CAFC Commerce Shirked Statutory Duties to Consider Industry Support for AD Investigations
The Commerce Department "violated its statutory obligations" to gain adequate support to launch an antidumping duty investigation, importers led by Tenaris Bay City argued in their March 24 opening brief at the U.S. Court of Appeals for the Federal Circuit. Tenaris Bay said Commerce failed to examine "intermingled" oil country tubular goods mill and processor production data and proxy shipment information used "in lieu of missing production data" provided by the petitioners "to confirm its accuracy and adequacy contrary to its statutory obligation" (Tenaris Bay City v. United States, Fed. Cir. # 25-1382).
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Tenaris Bay said the petitioners and the domestic industry are made of both oil country tubular goods mills and processors. The data from the mills and processors was "intermingled and was not analyzed separately by Commerce for purposes of calculating industry support and determining whether the petition was filed by or on behalf of the industry."
The importer added that Commerce also "failed to give any meaning to the statutory terms 'industry' and 'production'" in violation of "well-settled principles of statutory interpretation" in determining that the petition satisfied the statutory industry support thresholds and was filed by or on behalf of the industry. The importer said the agency failed to give these terms any meaning, given that the petitioners and the domestic industry are made of both oil country tubular goods mills and processors.
Tenaris Bay also argued that Commerce's remand results before the Court of International Trade failed to comply with the trade court's order to further explain whether data relied on accurately reflected industry support to ensure the petition satisfied the statute's industry support thresholds. The importer also argued that it didn't fail to exhaust administrative remedies regarding certain claims showing that the petition didn't satisfy these thresholds.
The trade court previously sustained Commerce's decision not to poll the industry before opening the AD investigations on oil country tubular goods from Argentina, Mexico, South Korea and Russia, though it previously remanded to revisit whether finishing operations were double counted (see 2403220033). CIT also told the agency to further explain its use of industry source data from the 2020 market period. On remand, the agency stuck with its use of the industry source data and said finishing operations weren't double counted, which the trade court sustained (see 2412110010).
Now before the appellate court, Tenaris Bay said Commerce's determination that the petition "satisfied the statutory industry support thresholds and was filed by or on behalf of the industry" isn't backed by substantial evidence. The importer said the "denominator used for the industry support calculation, relying on shipment data as a proxy for missing production data, was neither accurate nor adequate," since the evidence doesn't show that the denominator included "total production of other domestic like product."
The brief added that the evidence was "insufficient for Commerce to demonstrate that production data was not counted twice in its industry support calculations, which would distort the calculation." There also wasn't any evidence to back Commerce's claim that it only included production of the domestic like product in its industry support calculations, "such that minor processing production, like threading operations alone, were not included and counted as domestic production."