70 F.Supp.3d 1309 (CIT. 2015), 13-00022, JMC Steel Group v. United States

Docket Nº:13-00022
Citation:70 F.Supp.3d 1309
Opinion Judge:Barnett, Judge
Party Name:JMC STEEL GROUP, Plaintiff, v. UNITED STATES, Defendant, ALLIED TUBE AND CONDUIT, WHEATLAND TUBE, and UNITED STATES STEEL CORPORATION, Plaintiff-Intervenors, AL JAZEERA STEEL PRODUCTS CO. SOAG, VIETNAM HAIPHONG HONGYUAN MACHINERY MANUFACTORY CO., LTD., UNIVERSAL TUBE AND PLASTIC INDUSTRIES, LTD., KHK SCAFFOLDING & FORMWORK, LLC, UNIVERSAL TUBE AND
Attorney:No. 13-00022 John R. Magnus, Tradewins LLC, of Washington, DC, for plaintiff. Roger B. Schagrin and John W. Bohn, Schagrin Associates, of Washington, DC, for plaintiff-intervenor Allied Tube and Conduit. Stephen P. Vaughn, Robert E. Lighthizer, and James C. Hecht, Skadden, Arps, Slate, Meagher & ...
Judge Panel:Before: Mark A. Barnett, Judge.
Case Date:May 29, 2015
Court:Court of International Trade
 
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Page 1309

70 F.Supp.3d 1309 (CIT. 2015)

JMC STEEL GROUP, Plaintiff,

ALLIED TUBE AND CONDUIT, WHEATLAND TUBE, and UNITED STATES STEEL CORPORATION, Plaintiff-Intervenors,

v.

UNITED STATES, Defendant,

AL JAZEERA STEEL PRODUCTS CO. SOAG, VIETNAM HAIPHONG HONGYUAN MACHINERY MANUFACTORY CO., LTD., UNIVERSAL TUBE AND PLASTIC INDUSTRIES, LTD., KHK SCAFFOLDING & FORMWORK, LLC, UNIVERSAL TUBE AND PIPE INDUSTRIES, LLC, ZENITH BIRLA (INDIA) LIMITED, and CONARES METAL SUPPLY LIMITED, Defendant-Intervenors

No. 13-00022

United States Court of International Trade

May 29, 2015

Page 1310

John R. Magnus, Tradewins LLC, of Washington, DC, for plaintiff.

Roger B. Schagrin and John W. Bohn, Schagrin Associates, of Washington, DC, for plaintiff-intervenor Allied Tube and Conduit.

Stephen P. Vaughn, Robert E. Lighthizer, and James C. Hecht, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for plaintiff-intervenor United States Steel Corporation.

Gilbert B. Kaplan and Brian E. McGill, King & Spalding, LLP, of Washington, DC, for plaintiff-intervenor Wheatland Tube.

Karl von Schriltz, Attorney, Office of the General Counsel, Dominic L. Bianchi, General Counsel, and Andrea C. Casson, Assistant General Counsel for Litigation, U.S. International Trade Commission, of Washington, DC, for defendant.

David L. Simon, Law Offices of David L. Simon, of Washington, DC, for defendant-intervenor Al Jazeera Steel Products Co. SAOG.

Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S. Hodgins, and Sarah S. Sprinkle, Morris, Manning & Martin LLP, of Washington, DC, for defendant-intervenors Universal Tube and Plastic Industries, Ltd., KHK Scaffolding & Formwork, LLC, and Universal Tube and Pipe Industries, LLC.

Max F. Schutzman, Ned. H. Marshak, and Kavita Mohan, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New York, NY, for defendant-intervenors Zenith Birla (India) Ltd. and Conares Metal Supply Ltd.

Robert F. Gosselink and Jonathan M. Freed, Trade Pacific, PLLC, of Washington, DC, for defendant-intervenor Vietnam Haiphong Hongyuan Machinery Manufactory Co., Ltd.

Before: Mark A. Barnett, Judge.

OPINION

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[The court sustains the International Trade Commission's Redetermination.]

Barnett, Judge

This matter, which arises from the International Trade Commission's (" ITC" or " Commission" ) antidumping and countervailing duty investigations into certain circular welded carbon-quality steel pipe (" CWP" ) from India, Oman, the United Arab Emirates, and Vietnam (" subject imports" ), returns to the court following remand to the Commission in JMC Steel Group v. United States, 38 CIT ___, 24 F.Supp.3d 1290 (2014) (" JMC I " ).1 In that decision, the court ordered the Commission to (1) " reconsider its findings with regard to lost sales and revenue, taking into account [the] argument that the structure of the domestic CWP market precludes Plaintiffs from providing the ITC the lost sales and revenue information in the form and manner in which it was sought," and (2) " explain how it has evaluated the impact of subject imports on the domestic industry within the context of the business cycle." Id. at , 24 F.Supp.3d at 1321. On February 9, 2015, the ITC filed its final negative injury remand results, in which it again found no material injury or threat thereof to the domestic industry. See Views of the Commission, USITC Pub. 4521, Inv. Nos. 701-TA-482-484 and 731-TA-1191-1194 (Final) (Remand) (Feb. 2015) (" Remand Views " ).2 Plaintiff, JMC Steel Group, and Plaintiff-Intervenors, United States Steel Corporation and Wheatland Tube, (" Plaintiffs" ) challenge the remand results.3 ( See generally Confidential Comments of JMC Steel Group, Wheatland Tube, and United States Steel Corporation on the Commission's Remand Determination (" Comments" ) (ECF No. 152).) For the reasons stated below, the remand results are sustained.

Background and Procedural History

A. The Administrative Proceedings

On October 26, 2011, Plaintiffs filed a petition with the ITC, alleging material injury and threat of material injury by reason of the subject imports. See Circular Welded Carbon-Quality Steel Pipe from India, Oman, United Arab Emirates, and Vietnam, 76 Fed.Reg. 68,208 (ITC Nov. 3, 2011) (initiation of antidumping and countervailing duty investigations). In December 2012, the ITC published a final determination, Circular Welded Carbon-Quality Steel Pipe from India, Oman, the United Arab Emirates, and Vietnam, 77 Fed.Reg. 73,674 (ITC Dec. 11, 2012) (" Final Determination " ), and accompanying Views of the Commission, USCIT Pub. 4362, Inv. Nos. 701-TA-482-484 and 731-TA-1191-1194 (Final) (Dec. 2012) (" Original Views " ), which examined a period of investigation (" POI" ) of January 2009 through June 2012. The Commission determined that subject imports and the domestic like product are " generally fungible," share the same channels of distribution, have a " reasonable overlap" of competition, and that price is a significant factor in CWP purchasing decisions. It found a significant increase in the volume of subject imports during the POI, in absolute terms and relative to domestic consumption and production, but concluded that the increase did not have significant adverse effects on the domestic

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industry. Although the ITC observed that subject imports " pervasively undersold" the domestic like product by significant margins during the POI, it nevertheless found " no evidence" that subject imports significantly depressed or suppressed prices of the domestic like product. The ITC also found that the domestic industry's performance improved in " almost every measure [during the POI] despite the weak recovery in CWP demand" following the 2008 economic crisis and that there was no correlation between subject import volume, market share, and underselling, on the one hand, and domestic industry performance, on the other. The Commission thus determined that the subject imports neither caused nor threatened to cause material injury to the domestic industry. See generally Final Determination; Original Views.

B. JMC I

Plaintiffs challenged the Final Determination on numerous grounds. ( See generally ECF Nos. 71, 76, 77, 82, 85.) In JMC I, the court addressed Plaintiffs' arguments and affirmed, in part, and remanded, in part, the determination. Of relevance to the present opinion, the court found that the ITC did not assume that negative volume effects alone cannot warrant an affirmative injury determination and also held that " the fact that the ITC found a significant increase in subject import volume and market share does not compel an affirmative injury determination." JMC I, 38 CIT at __, 24 F.Supp.3d at 1299. The court also affirmed the Commission's findings that there was no correlation between increased subject import volume and negative price effects on the domestic like product, and between subject imports' increased volume and the domestic industry's performance during the POI. Id. at , 24 F.Supp.3d at 1302-03, 1306-10.

The court, however, remanded the Final Determination to the ITC on two grounds. First, the court questioned the Commission's treatment of the domestic producers' lost sales and revenue allegations in the price effects analysis. Id. at , 24 F.Supp.3d at 1304-05. Plaintiffs had averred that they could not provide lost sales and revenue information, in the form and manner requested by the Commission, due to the structure of the domestic CWP market. The court held that, in such circumstances, pursuant to 19 U.S.C. § 1677m(c), the Commission must " consider the ability of the party to submit the information and may modify its requirements to avoid imposing an unreasonable burden on the party when certain additional requirements are met. In certain cases, the Commission also is required to provide such parties any assistance that is practicable." Id. at , 24 F.Supp.3d at 1304-05 (citation omitted). The court found that " [t]he record is ambiguous as to whether domestic interested parties took the necessary steps to properly invoke these provisions and, if so, the extent to which the Commission considered modifying its information requests or otherwise assisting these parties in addressing the questions regarding lost sales and revenue." Id at , 24 F.Supp.3d at 1305. The court concluded that the ITC had, in effect, treated the domestic industry's inability to provide this information, in the form and manner requested, as an adverse inference against it, without addressing the requirements of 19 U.S.C. § 1677e. Id. The court remanded the issue and instructed the ITC to reconsider its findings with regard to lost sales and revenue. Id. The court also ruled that " the Commission may collect additional evidence relevant to this issue and reconsider any aspect of the Final Determination which relied upon or took into consideration the Commission's prior

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findings regarding lost sales and revenue." Id.

Second, the court found that the ITC, in assessing the effects of subject imports on the domestic industry, did not " 'evaluate all relevant factors which have a bearing on the state of the [CWP] industry in the United States . . . within the context of the business cycle,'" as required by 19 U.S.C. § 1677(7)(C)(iii). Id. at , 24 F.Supp.3d at 1307 (ellipses in original) (quoting 19 U.S.C. § 1677(7)(C)(iii)). Specifically, the court stated:

While the Commission referenced the dismal economic conditions that affected the industry at the beginning of the POI, it did not clearly address whether the...

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