Trade Court Says ITC Properly Found Russian Pipe Imports Non-Negligible
The International Trade Commission legally found on remand that Russian seamless pipe imports are non-negligible, as part of its injury determination on the products, the Court of International Trade held on Oct. 25. Judge M. Miller Baker said that CBP made "reasonable estimates" of the amount of in-scope merchandise imported from other nations, as this would affect the negligibility calculation for Russian seamless pipe.
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The judge also said the ITC permissibly declined to reopen the record, since exporter PAO TMK failed to raise the issue before the agency. "Having failed to ask the Commission to reopen the record, it’s now too late for TMK to complain," Baker held.
In injury proceedings, the ITC divides the amount of in-scope merchandise purchases from a given country during the relevant period by the total amount of in-scope goods imported from all nations in the same period. Should the result of that calculation be less than 3%, goods from that country are found to be negligible and not liable for AD/CVD. TMK said the ITC underreported the number of imports from Germany and Mexico in calculating Russian imports' negligibility, since an adjustment to these figures would likely drop Russian goods under the 3% threshold.
The trade court previously remanded the issue so that TMK could comment on the commission's sole reliance on questionnaire data from one unnamed company, "Company A," on goods from Germany and the other unnamed company, "Company B," on goods from Mexico (see 2310200052). On remand, the ITC "stood its ground" and said nothing contradicts its findings that Companies A and B were the only importers of in-scope pipe from Germany and Mexico (see 2402120048).
The commission said the CBP data included purchases of both in-scope and out-of-scope pipe and didn't "precisely align with the applicable HTS codes," adding that the "codes themselves included both sorts of products." As a result, the ITC said the CBP data alone didn't allow for a finding of "whether the orders encompass the reported imports." To make this finding, the commission said it needs either questionnaire responses or company-specific information but that the only data it had was from Companies A and B.
While CBP data showed other firms bought from Germany and Mexico, the "data were inconclusive as to scope." As a result, the ITC said it relied on the submissions from Companies A and B.
Baker found this explanation reasonable. CBP said since Company A's imports were the "overwhelming portion of the German total," it was reasonable to use its purchases as the "best estimate available for total in-scope imports" from Germany. "TMK offers no meaningful response," the judge said, adding that the explanation is in line with the "statute's allowance for 'reasonable estimates on the basis of available statistics.'"
Regarding the Mexican data, TMK said that since the CBP data showed there were other firms buying in-scope Mexican pipe, the ITC should have started with the official statistics and subtracted out-of-scope pipe. Baker said this claim "has a fatal flaw: That no other entity reported out-of-scope imports from Mexico does not mean that 100 percent of their buys from that country were in-scope."
Like with Company A, the ITC reasonably said that since the record is "inconclusive as to the scope status of imports from Mexico other than Company B’s, it relied on the latter’s data as an estimate of the whole."
(PAO TMK v. United States, Slip Op. 24-119, CIT # 21-00532, dated 10/25/24; Judge: M. Miller Baker; Attorneys: Daniel Cannistra of Crowell & Moring for plaintiff PAO TMK; Dominic Bianchi for defendant U.S. government; Thomas Beline of Cassidy Levy for defendant-intervenor U.S. Steel Corp.)