Autoliv ASP, Inc. v. United States

Slip. Op. 19-154
UNITED STATES COURT OF INTERNATIONAL TRADE
AUTOLIV ASP, INC.,
Plaintiff,
v.
UNITED STATES,
Before: Leo M. Gordon, Judge
Defendant,
Consol. Court No. 18-00037
and
ARCELORMITTAL TUBULAR
PRODUCTS, MICHIGAN SEAMLESS
TUBE, LLC, PTC ALLIANCE CORP.,
WEBCO INDUSTRIES, INC.,
ZEKELMAN INDUSTRIES, INC., and
PLYMOUTH TUBE CO., USA,
Defendant-Intervenors.
OPINION
[Sustaining final affirmative material injury determinations.]
Decided: December 6, 2019
Kenneth G. Weigel and Chunlian Yang, Alston & Bird LLP, of Washington, DC,
for Plaintiff Autoliv Asp, Inc.
Brian R. Soiset, Attorney, Office of the General Counsel, U.S. International Trade
Commission, of Washington, DC, for Defendant United States International Trade
Commission. With him on the brief were Dominic L. Bianchi, General Counsel, and
Andrea C. Casson, Assistant General Counsel for Litigation.
R. Alan Luberda, Kathleen W. Cannon, and Melissa M. Brewer, Kelley Drye and
Warren LLP, of Washington, DC, for Defendant-Intervenors Arcelormittal Tubular
Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc.,
Zekelman Industries, Inc., and Plymouth Tube Co., USA.
Consol. Court No. 18-00037 Page 2
Gordon, Judge: This consolidated action involves the final affirmative material
injury determinations by the U.S. International Trade Commission (“ITC” or
“Commission”) in the countervailing duty (“CVD”) and antidumping duty (“AD”)
investigations into imported cold-drawn mechanical tubing (“CDMT”) from various
countries. See Cold-Drawn Mechanical Tubing from China and India, 83 Fed. Reg.
4,269 (Int’l Trade Comm’n Jan. 30, 2018), and Cold-Drawn Mechanical Tubing from
China, Germany, India, Italy, Korea, and Switzerland, 83 Fed. Reg. 26,088 (Int’l Trade
Comm’n June 5, 2018), respectively (“Final Determinations”); see also Cold-Drawn
Mechanical Tubing from China and India, Inv. Nos. 701-TA-576-577 (CVD Final),
USITC Pub. 4755 (Jan. 2018), PD1 218 (“Views”), and Cold-Drawn Mechanical Tubing
from China, Germany, India, Italy, Korea, and Switzerland, Inv. Nos. 731-TA-1362-1367
(AD Final), USITC Pub. 4790 (May 2018), PD 271.
Before the court is the USCIT Rule 56.2 motion for judgment on the agency
record filed by Plaintiff Autoliv ASP, Inc. (“Autoliv”). See Pl.’s Mot. for J. on the
Agency R., ECF No. 28 (“Pl.’s Mot.”); see also Def.’s Resp. to Pl.’s Mot. for J. on the
Agency R., ECF No. 29 (“Def.’s Resp.”); Def.-Intervenors Arcelormittal Tubular
Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc.,
Zekelman Industries, Inc., and Plymouth Tube Co., USA’s Resp. Opp. Pl.’s Mot. for J.
on the Agency R., ECF No. 30 (“Def.-Intervenors Resp.”); Pl.’s Reply in Supp. of Mot.
for J. on the Agency R., ECF No. 31 (“Pl.’s Reply”). The court has jurisdiction pursuant
1“PD” refers to a document in the public administrative record, which is found in ECF
No. 22, unless otherwise noted. “CD” refers to a document in the confidential
administrative record, which is found in ECF No. 21, unless otherwise noted.
Consol. Court No. 18-00037 Page 3
to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C.
§ 1516a(a)(2)(B)(i), 2 and 28 U.S.C. § 1581(c) (2012). For the reasons set forth below,
the ITC’s final affirmative injury determinations are sustained.
I. Background
The statute governing unfair trade investigations requires a determination by the
Commission on whether imported articles within the scope of a particular investigation
(the “subject merchandise”) have injured a domestic industry. See 19 U.S.C. §§ 1671,
1673. Domestic “industry” is defined as “the producers as a whole of the domestic like
product….” 19 U.S.C. § 1677(4)(A). Three types of domestic injury are identified by
statute: material injury, threat of material injury, or material retardation of the
establishment of an industry. See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). There must
be a causal nexus between a type of injury and imports of the subject merchandise, i.e.,
the injury must result “by reason of” imports of the subject merchandise. Id.
In order to make its determination, the Commission compares subject
merchandise to its U.S. domestic counterpart, which by statute must be a product
“which is like, or in the absence of like, most similar in characteristics and uses with, the
article subject to an investigation.” 19 U.S.C. § 1677(10). The Commission relies on the
“scope” of the subject merchandise provided by the U.S. Department of Commerce
(“Commerce”) to serve as the outside parameter for defining the domestic like product.
See Views at 5 & n.13; see, e.g., NEC Corp. v. Dep't of Commerce, 22 CIT 1108, 1110
2 Further citations to the Tariff Act of 1930, as amended, are to relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 18-00037 Page 4
(1998) (“[a]lthough the Commission must accept the determination of Commerce as to
the scope of the imported merchandise sold at less than fair value, the Commission
determines what domestic product is like the imported articles Commerce has
identified”).
If subject merchandise involves a range of products, as here, the Commission
generally does not consider each iteration of merchandise to be a separate like product.
Instead, the Commission considers the grouping of products to constitute a single
domestic like product, and it will disregard minor variations among them absent a “clear
dividing line” between particular products in the group. See Nippon Steel Corp. v. United
States, 19 CIT 450, 455 (1995) (the ITC “disregards minor differences, and looks for
clear dividing lines between like products”); see also Tapered Roller Bearings from
China, Inv. No. 731-TA-344 (Fourth Review), USITC Pub. 4824 at 5–14 (Sept. 2018)
(describing variety of sizes specifications, and applications for tapered roller bearings
but defining a single domestic like product without clear dividing lines between
products). 3
In determining the domestic like product here, the Commission relied on
Commerce’s definition of the scope, namely, all CDMT of carbon and alloy steel of
3 The following factors are considered in the Commission’s like-product analysis: (1)
physical appearance, (2) interchangeability, (3) channels of distribution, (4) customer
perceptions, (5) common manufacturing facilities and production employees, and where
appropriate, (6) price. See NEC Corp., 22 CIT at 1110. These factors are not
exhaustive, as an investigation may give rise to other considerations relevant to the
factual determination on the domestic like product, and the Commission’s practice in
defining domestic like product is on a case-by-case basis with no single factor
considered dispositive. See, e.g., Views at 5.
Consol. Court No. 18-00037 Page 5
circular cross-section, 304.8 mm or more in length, in actual outside diameters less than
331 mm, and regardless of wall thickness, surface finish, end finish, industry
specification, production process (e.g., welded or seamless), further heat treatment or
cold-finishing operations, or dual/multiple certification to standards. See Views at 5–6.
Commerce’s scope definition broadly covered CDMT steel products in which (1) iron
predominates, by weight, over each of the other contained elements, and (2) the carbon
content is two percent or less by weight. See id. at 6. In reaching its conclusion
regarding injury, the Commission determined that there was a single domestic like
product “that is coextensive with the scope of investigations.” Id. at 15.
Autoliv imported “airbag tubing” for use in the manufacture of automotive safety
airbag systems during the respective periods of the investigations (“POIs”) of imported
CDMT. In its comments to the Commission on the definition of the domestic like
product, Autoliv did not dispute that the scope conceptually covered airbag tubing.
Nevertheless, Autoliv contended that airbag tubing was a critical component of its
production of airbag safety systems and that there was a “clear dividing line” in terms of
production process, chemical and mechanical properties, and uses, between airbag
tubing and CDMT generally. See, e.g., Views at 10–11, 13–15; Pl.’s Mot. at 4 (citing
Prehearing Brief of Autoliv at 3, PD 165, CD 524). Autoliv further maintained that airbag
tubing must be extremely hard, and at the same time ductile, in order to meet its critical
safety purposes, and that there was no production currently of the domestic equivalent
of airbag tubing nor did the domestic industry have plans to produce it. Id. Autoliv
argued that the absence of domestic production did not preclude the Commission from
Consol. Court No. 18-00037 Page 6
finding airbag tubing to be a separate domestic like product and that the Commission
should have, in these circumstances, considered whether domestic production of airbag
tubing was materially retarded under the third prong of the statute.
In response, the petitioners argued that Autoliv did not timely file comments
requesting the Commission to collect separate data on U.S.-produced products like or
most similar to airbag tubing. See Views at 10. Petitioners further contended that
Autoliv’s argument for a material retardation analysis was misplaced because Autoliv
did not and could not allege the existence of material retardation, given that there is an
established domestic industry producing CDMT that had previously produced airbag
tubing and that retains the equipment to do so. See id. at 10, 14.
Ultimately the Commission agreed with the petitioners, explaining that the statute
precluded it from considering airbag tubing as a separate domestic like product because
there were no “like” domestic products or production of airbag tubing during the POIs.
See id. at 14–15. The ITC observed that the domestic industry included U.S. producers
who had previously manufactured airbag tubing and did not currently manufacture
airbag tubing but retained the capacity to do so. Id. at 14. Accordingly, the Commission
determined that imports of CDMT from China, Germany, India, Italy, Korea, and
Switzerland caused material injury to a U.S. industry. See Final Determinations.
Consol. Court No. 18-00037 Page 7
II. Standard of Review
The court sustains the Commission’s “determinations, findings, or conclusions”
unless they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C § 1516a(b)(1)(B)(i). More specifically, when reviewing
agency determinations, findings or conclusions for substantial evidence, the court
assesses whether the agency action is reasonable given the record as a whole. Nippon
Steel Corp v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006). Substantial
evidence has been described as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,
407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Substantial evidence has also been described as “something less
than the weight of evidence, and the possibility of drawing two inconsistent conclusions
from the evidence does not prevent an administrative agency’s findings from being
supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620
(1966). Fundamentally, though, “substantial evidence” is best understood as a word
formula connoting a reasonableness review. 3 Charles H. Koch, Jr., Administrative Law
and Practice § 9.24[1] (3d ed. 2019). Therefore, when addressing a substantial
evidence issue raised by a party, the court analyzes whether the challenged agency
action “was reasonable given the circumstances presented by the whole record.” 8A
West’s Fed. Forms, National Courts § 3.6 (5th ed. 2019).
Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837. 842–45 (1984), governs judicial review of the
Consol. Court No. 18-00037 Page 8
Commission’s interpretation of the Tariff Act. See United States v. Eurodif S.A., 555
U.S. 305, 316 (2009) (An agency's “interpretation governs in the absence of
unambiguous statutory language to the contrary or unreasonable resolution of language
that is ambiguous.”).
III. Discussion
Autoliv contends that, even though there was no U.S. production of airbag tubing
during the POIs, the Commission’s decision not to define airbag tubing as a separate
domestic like product is unlawful. See Pl.’s Mot. at 3–14. Autoliv maintains that, given
these circumstances, 19 U.S.C. §§ 1671d(b) and 1673d(b) require that the Commission
conduct a material retardation analysis, which the Commission failed to do. Id. at 15–16.
Autoliv also argues that it was unreasonable for the Commission to conclude that
Autoliv did not identify a domestically produced variant that is most similar in
characteristics and uses with airbag tubing. Lastly, Autoliv contends that the
Commission has the burden to gather the requisite factual information and identify a
suitable domestic like product for the purpose of determining whether airbag tubing
constitutes a separate like product. Id. at 17–19.
A. Statutory Interpretation of “Domestic Like Product”
In considering the proper interpretation of “domestic like product” under
19 U.S.C. § 1677(10), the court applies the two-step framework of Chevron. Under step
one of Chevron, the court considers whether Congressional intent on the issue is clear.
See Chevron, 467 U.S. at 842–43 (“First, always, is the question whether Congress has
directly spoken to the precise question at issue. If the intent of Congress is clear, that is
Consol. Court No. 18-00037 Page 9
the end of the matter; for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.”). If the court cannot identify a clear
expression of Congressional intent and concludes that the statutory provision is silent or
ambiguous as to the contested issue, the court turns to the second prong and
determines whether Commerce's interpretation of the statute is reasonable. See id.Autoliv argues that “[t]he Commission’s interpretation of the industry and
domestic like product definitions is inconsistent with the text of the statute and
Congress’s purpose and intent in enacting the antidumping and countervailing duty
laws.” Pl.’s Mot at 7. Specifically, Autoliv maintains that:
The statute, 19 U.S.C. § 1677(10), defines the domestic like
product with reference to ‘a product… (importantly, not ‘a
domestic product’ nor ‘domestically manufactured product’)
which is like … or most similar… with the article subject to
an investigation.’ Thus, the statute unequivocally defines the
domestic like product with reference to ‘a product’ identical
or most similar to the imported subject merchandise, and not
to domestically produced items.
Id. at 9. Autoliv thus contends that “the plain language in the statute … [requires] that
the Commission must first determine the like product(s) subject to the investigations –
here one of them is airbag tubing – and then the domestic ‘like product’ that is like or
similar to airbag tubing and use that to define the U.S. industry to consider for Injury
purposes.” Id. at 10.
The Commission agrees with Plaintiff that the meaning of “domestic like product”
is clear and unambiguous. However, it maintains that Autoliv’s interpretation improperly
relies on in-scope imports to define a non-existent “domestic” like product. See Views
Consol. Court No. 18-00037 Page 10
at 13. The Commission argues that Autoliv’s proposed definition of like product ignores
the “statute’s mandate to identify a domestic item that is like or most similar to subject
imports.” Id. (emphasis added). The Commission explains that the statute provides that
when material retardation is not an issue in an investigation and no like product is
produced domestically, the Commission is to identify a domestic product that is “most
similar in characteristics and uses” to subject merchandise:
The ITC will examine an industry producing the product like
the imported article being investigated, but if such an
industry does not exist and the question of material
retardation of establishment of such an industry is not an
issue before the ITC, then the ITC will examine an industry
producing a product most similar in characteristics and uses
with the imported article.
Def.’s Resp. at 10 (quoting S. Rep. No. 96-249, at 90 (1979), reprinted in 1979
U.S.C.C.A.N. 381, 476).
The precise question at issue here is whether the Commission may define a
separate “domestic like product” that is not produced domestically. “In order to
determine whether a statute clearly shows the intent of Congress in a Chevron step-one
analysis, [the court] employ[s] traditional tools of statutory construction and examine[s]
‘the statute's text, structure, and legislative history, and appl[ies] the relevant canons of
interpretation.’” Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012) (quoting
Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)).
Plaintiff highlights that the statutory definition of “domestic like product” does not
refer to domestic production, thereby arguing that in circumstances where there is
no domestic production of a particular subject import, the statute contemplates that the
Consol. Court No. 18-00037 Page 11
Commission “must first determine the like product(s) subject to the investigations … and
then the domestic ‘like product’ that is like or similar to airbag tubing and use that
to define the U.S. industry to consider for Injury purposes.” See Pl.’s Mot at 9–10.
The court disagrees. The text, structure, and legislative history of § 1677(10) convey a
clear Congressional intent that the Commission define a “domestic like product” with
respect to a product that is produced domestically.
Notably, the statute does not expressly require or provide for any precise
methodology by which the Commission is to identify an appropriate domestic like
product. See 19 U.S.C. §§ 1677(4) & 1677(10). Rather, the statute simply states that
the Commission shall identify “a product which is like, or in the absence of like, most
similar in characteristics and uses with, the article subject to an investigation.” See
19 U.S.C. § 1677(10) (emphasis added). As the Commission notes, the legislative
history supports its interpretation that the term “domestic like product” was intended to
cover only domestically produced merchandise. See Def.’s Resp. at 8 (noting that
“when Congress in 1994 amended the term from ‘like product’ to ‘domestic like product’,
the Senate report confirmed that ‘like product’ under U.S. law ‘refers to
U.S. production.’” (quoting S. Rep. 103-412, at 33, (1994))); id. at 10 (“The ITC will
examine an industry producing the product like the imported article being investigated,
but if such an industry does not exist and the question of material retardation of
establishment of such an industry is not an issue before the ITC, then the ITC will
examine an industry producing a product most similar in characteristics and uses with
the imported article.” (quoting S. Rep. No. 96-249, at 90 (1979))).
Consol. Court No. 18-00037 Page 12
Plaintiff’s argument that the term “domestic like product” in 19 U.S.C. § 1677(10)
must be defined without reference to whether there is any domestic production of a
proposed “like” product is misplaced. The Commission’s interpretation of § 1677(10)
comports with the statutory language’s clear and unambiguous meaning. Autoliv’s
interpretation ignores the word “domestic” in the term “domestic like product” and runs
contrary to Congressional intent. Accordingly, the court sustains the Commission’s
interpretation of the term “domestic like product” in the Final Determinations.
B. Material Retardation
Beyond its argument that the Commission must define “domestic like product”
by reference to subject imports (without regard to whether there is actually domestic
production of identical or similar products), Autoliv argues that in circumstances where
there is no domestic production of merchandise identical or similar to certain subject
imports, the Commission is statutorily required to consider whether subject imports were
materially retarding the establishment of a domestic industry for production of those
goods. See Pl.’s Mot. at 14–16 (“once [the Commission] found no U.S. production of
airbag tubing or a similar product, [it] was required by statute to consider if the
establishment of an industry in the United States is materially retarded.”). Autoliv
maintains that the use of the mandatory term “shall” in 19 U.S.C. §§ 1671d(b) and
1673d(b) demonstrates that “[w]hen there is no production of a domestic like product,
the statute requires the Commission to proceed to the question of material retardation of
establishment of an industry.” Id. at 15. Other than noting that §§ 1671d(b) and
1673d(b) direct that the Commission “shall make a final determination” as to material
Consol. Court No. 18-00037 Page 13
injury to or material retardation of the establishment of a U.S. industry, Autoliv fails to
explain how the statutory language of §§ 1671d(b) and 1673d(b) conveys a clear
Congressional intent that answers the “precise question” of whether the Commission
must proceed with a material retardation analysis in circumstances where there is no
domestic production of an alleged separate like product. See Chevron 467 U.S. at 842–
43.
Instead of presenting an argument under Chevron step one as it did with respect
to 19 U.S.C. § 1677(10), Autoliv argues that certain commissioners, and even the
Commission itself, have previously interpreted §§ 1671d(b) and 1673d(b) to provide for
a material retardation analysis where there is no commercial domestic production of a
particular product. See Pl.’s Mot. at 12–13, 15–16 (citing prior Commission decisions
involving the use of a material retardation analysis given the absence of domestic
production of a separate like product). As a result, Autoliv appears to suggest that the
Commission’s refusal to conduct a material retardation analysis in this matter is
unreasonable and violative of §§ 1671d(b) and 1673d(b) under Chevron step two.
As explained below, the court concludes that Autoliv’s reliance on certain Commission
precedent is misplaced and rejects Autoliv’s preferred statutory interpretation.
Importantly, in the subject investigations, the Commission determined that the
statute did not mandate it to conduct a material retardation analysis since there was an
established domestic CDMT industry that had produced airbag tubing in the past and
Consol. Court No. 18-00037 Page 14
which retained the productive capacity to produce airbag tubing. 4 See Views at 14.
The Commission reminded interested parties in its preliminary determinations that
“parties seeking a separate domestic like product for items not manufactured
domestically must identify a domestically produced variant most similar in
characteristics and uses to such items.” Id. at 14–15. Given that Autoliv failed to identify
any such domestically produced variant, the Commission proceeded to define “a single
domestic like product that is coextensive with the scope of [Commerce’s]
investigations.” Id. at 15.
The court agrees that the Commission reasonably interpreted the statute in
deciding not to conduct a material retardation analysis. As described above, Congress
plainly defined “domestic like product” in 19 U.S.C. § 1677(10) to encompass situations
where merchandise identical to the imported subject merchandise is not produced in the
U.S. domestically, i.e., “or in the absence of like, most similar in characteristics and
uses with, the article subject to an investigation under this subtitle.” See supra Part III.A.
The Commission explained that its determinations in other investigations consistently
demonstrate that “the Commission would not define a separate domestic like product for
items not produced domestically and for which parties had not identified a domestic
variant that was most similar in characteristics and uses.” Views at 14. The Commission
4 Autoliv responds regarding this point that “an industry that has not produced a product
since 2012 would seem to be a nascent industry.” Pl.’s Reply at 8. This response
ignores the ITC’s explanation as to why material retardation is not at issue in these
investigations and why domestic airbag tubing production is not a “nascent industry”
based on the information in the record. See Views at 14 (“Material retardation is not an
issue in these investigations. Petitioners have confirmed that they have in the past
manufactured airbag tubing and retain the capacity to do so.”).
Consol. Court No. 18-00037 Page 15
further clarified that the separate domestic like product inquiry is distinct from any
obligation the Commission may have to consider material retardation of the
establishment of a domestic industry. See id. at n.57 (quoting Professional Electric
Cutting and Sanding/Grinding Tools from Japan, Inv. No. 731-TA-571, USITC Pub.
2536 (July 1992), at 6 (“A product not produced in the United States is not an
appropriate candidate for a separate domestic like product determination, unless
material retardation of the establishment of an industry in the United States is a genuine
issue. It is not an issue in this investigation.”)).
The court has previously observed that “the lack of domestic production of
identical merchandise is not a basis for recognizing a separate domestic like product.”
Hitachi Metals Ltd. v. United States, 42 CIT ___, ___, 350 F. Supp. 3d 1325, 1342
(2018), appeal docketed, No. 19-1289 (Fed. Cir. Dec. 11, 2018). Autoliv fails to present
any arguments that lead the court to reach a different conclusion here. And contrary to
Autoliv’s proposed statutory interpretation, there is nothing inherent about the absence
of domestic production of identical “like” merchandise that necessitates that the
Commission commence a material retardation inquiry. See 19 U.S.C. §§ 1671d(b)(1),
1673d(b)(1); see also S. Rep. No. 96-249, at 90 (1979). Accordingly, the court sustains
the Commission’s decision in the Final Determinations not to consider whether there
was material retardation of the establishment of a domestic industry.
C. Airbag Tubing as a Separate Domestic Like Product
The Commission’s analysis of the domestic like product entails finding the
domestic product that corresponds to the subject imports, an inquiry that does not
Consol. Court No. 18-00037 Page 16
involve a comparison of in-scope imports with one another, as Autoliv advocates.
Autoliv argues nonetheless that the onus was on the Commission to make that
determination, and that Autoliv should not have to bear the burden of placing evidence
on the record of the domestically produced product that is “most similar in
characteristics and uses with” subject imports of airbag tubing. Autoliv argues that in
other investigations the Commission itself has undertaken to ensure that the record
contained information about a suitable domestically produced variant of subject imports.
See Pl.’s Mot. at 17–18 (referencing Ferrovanadium and Nitrided Vanadium from
Russia, Inv. No. 731-TA-702 (Review), USITC Pub. 3420 at 5–6 (May 2001)
(“Ferrovanadium”) & Certain Frozen Fish Fillets from Vietnam, Inv. Nos. 731-TA-1095,
-1096, and -1097 (Preliminary), USITC Pub. 3533 at 5 (Aug. 2002) (“Frozen Fish
Fillets”)).
Autoliv’s reliance on these prior determinations is misplaced. In Ferrovanadium,
the Commission indicated that it was accepting the domestic industry’s assertion that
domestically-produced ferrovanadium was the product most similar to subject imports of
nitride vanadium. See Ferrovanadium at 5 (citing testimony from counsel to domestic
industry at ITC hearing). In Frozen Fish Fillets, the Commission noted that the domestic
industry had identified frozen catfish fillets as the domestically produced item most
similar to subject imports. See Frozen Fish Fillets at 5 (highlighting that “[p]etitioners
argue that the product ‘most similar in characteristics and uses’ to subject imports is
frozen catfish fillets”). Read in context, both of these ITC determinations demonstrate
that the Commission solicits and relies on information provided by interested parties in
Consol. Court No. 18-00037 Page 17
order to determine domestically produced articles that were “most similar in
characteristics and uses” to subject imports. These determinations do not support
Plaintiff’s contention that the Commission maintains an independent responsibility
to identify domestically-produced items to serve as the domestic like product in
circumstances where there is no domestic production of certain subject imports.
As the Commission noted, 19 C.F.R. § 207.20(b) requires any and all “requests
for collecting new information” to be made by “parties to the investigation” in their
respective comments on the Commission’s draft questionnaires. See Def.’s Resp. at 13.
The Commission states that it “further reminded” parties of this obligation in its
preliminary views, requesting that the “parties” identify with “specificity” any product for
which they sought a separate domestic like product in comments on draft
questionnaires, and that in the final analysis Autoliv did not avail itself of that
opportunity. Views at 14–15 (referencing Cold-Drawn Mechanical Tubing from China
Germany, India, Italy, Korea, and Switzerland, Inv. Nos. 701-TA-576-577 and 731-TA-
1362-1367 (Preliminary), USITC Pub. 4700 at 10 n.22 5 (June 2017), PD 86
(“Preliminary Views”)). Autoliv responds that § 207.20(b) begins by stating: “The
Director shall circulate draft questionnaires for the final phase of an investigation … for
comment,” and Autoliv complains that it “was not provided drafts even though its views
were reflected in the Staff Report in the preliminary investigation.” Pl.’s Reply at 10
(referencing Preliminary Views at II-12 & n.34). Autoliv also contends that the
5 The court notes that the pincite in the Views is slightly inaccurate, and that the relevant
reminder language that ITC references may be found in the text of the conclusion on
page 13 of the Preliminary Views, as well as in footnote 22 on pages 8–9.
Consol. Court No. 18-00037 Page 18
Commission’s procedural argument implies that the Commission lacks data with respect
to airbag tubing, but Autoliv maintains that “[t]he record is complete as to airbag tubing
on both the import and domestic sides.” Id.
Autoliv, however, leaves unchallenged the Commission’s finding that airbag
tubing was not produced domestically during the respective POIs, and Autoliv has failed
to establish that the Commission acted unreasonably in refusing to define airbag tubing
as a separate domestic like product. See Hitachi Metals, 350 F. Supp. 3d at 1342. The
Commission does bear responsibility for making the ultimate legal determinations, but it
cannot do so in a vacuum, without the assistance of interested parties. The Commission
explained that it requires parties seeking a separate domestic like product determination
for imported items not made domestically to identify a domestically-produced item most
similar in characteristics and uses to the imported item. See, e.g., Views at 13 & n.52.
Given the absence of domestic production of airbag tubing, Autoliv should have heeded
the Commission’s suggestion (made in addressing another party’s similar argument)
to propose the domestic product that is “most similar in characteristics and uses” to the
subject merchandise that is imported airbag tubing and request the Commission
to undertake data collection for it. See Preliminary Views at 8–9 n.22 (“Hubei Steel
failed to identify any domestically manufactured product ‘most similar in characteristics
and uses with’ imported cold-drawn alloy seamless tubing …. Even if there is no
domestic production of the product, because Hubei Steel has not identified a
domestically produced variant that is ‘most similar in characteristics and uses with’ this
product, we determine not to define it as a separate domestic like product.”). Autoliv is
Consol. Court No. 18-00037 Page 19
the party best positioned to understand and clarify the parameters of such a request,
not the Commission.
Autoliv argues that it did not propose any comparable product beyond airbag
tubing itself because “There is no U.S. Product Similar to Airbag Tubing.” See Pl.’s
Reply at 4–5. However, contradictorily, Autoliv also argues that it suggested to the
Commission that the product most “like” airbag tubing is “other types of CDMT.” See
Pl.’s Mot. at 19; Pl.’s Reply at 5. Given that the Commission defined a “single domestic
like product that is coextensive with the scope of the investigations,” (i.e., CDMT),
the court cannot agree with Plaintiff’s contention that the ITC’s domestic like product
determination was unreasonable.
III. Conclusion
Based on the foregoing, the court sustains the Final Determinations. Judgment
will enter accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: December 6, 2019
New York, New York