US Says Importer Tries to 'Spin' New Claims at CAFC on Industry Support for AD/CVD Proceedings
The Commerce Department correctly found that processors and producers of oil country tubular goods weren't double-counted in the agency's domestic production calculation underlying the antidumping duty investigations on OCTG from Argentina, Mexico, South Korea and Russia, the U.S. argued. Filing a reply brief at the U.S. Court of Appeals for the Federal Circuit on Aug. 5, the government added that importers led by Tenaris Bay City failed to raise a host of arguments before Commerce they now attempt to bring before the appellate court (Tenaris Bay City v. United States, Fed. Cir. # 25-1382).
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Tenaris initially challenged Commerce's decision to open the investigations on the grounds that there was insufficient domestic industry support for the proceedings. The importer took umbrage with the agency's decision not to poll the domestic industry and argued that Commerce failed to grapple with whether finishing operations were double counted.
The Court of International Trade initially remanded the agency's conclusions, though it remanded the issue of whether finishing operations were double counted (see 2403220033). The court then sustained Commerce's remand results, finding that the agency adequately addressed contrary evidence on remand (see 2412110010).
On appeal, the U.S. said CIT remanded the investigations for Commerce's failure to address evidence showing that two domestic companies, Borusan U.S. and PTC Liberty, both produce and finish OCTG, leading to the inference that some domestic pipe may have been double counted. On remand, with regard to PTC Liberty, Commerce said it reviewed International Trade Commission data and excerpts from the company's website to find that PTC Liberty is "first and foremost a producer of OCTG" that also has the capacity to finish OCTG.
The government said "PTC Liberty’s processing capabilities do not alter its significance as a producer," since information on the record shows that U.S. pipe mills are "typically equipped with the facilities necessary to perform heat-treatment, end upsetting, threading, and coupling.”
In regard to Borusan, Commerce said on remand that the company produces OCTG and also processes imported and purchased green tube. The agency said "Borusan U.S.’s production appropriately reflects its U.S. mill operations as well as the heat treatment processing of its green tube imports from" its Turkish facility.
Tenaris told the Federal Circuit that Commerce was required to look beyond double-counting to find whether the data Commerce used accurately reflected U.S. industry support, adding that the double-counting was but just one example of the issues the agency should have considered. The U.S. said Tenaris "goes on to dissect the independent and dependent clauses of excerpted sentences from the remand instructions."
The government argued that while this "grammatical tutorial is entertaining, it is ultimately belied by the language of the order itself as well as the trial court’s own clarification of the scope of its order." Instead, the importer merely "relies on this argument to disguise new issues that it failed to bring before Commerce during the initiation proceedings," the brief said.
CIT's remand instructions were "clearly limited to the double-counting issue," the brief said. The trade court very clearly said it was remanding the investigations, since "Commerce did not adequately address Plaintiffs’ concerns and record evidence that finishing operations were not counted twice," the U.S. noted.
The government also argued that Tenaris mischaracterizes the issue that was on remand at CIT in an attempt to "spin out new arguments on the industry support calculation that were not raised with Commerce during initiation." For example, Tenaris said that the double-counting "distortion" appears where the "production and processing of the same ton of domestically-produced pipe are each counted as U.S. production."
The U.S. said this is a "different, and more broadly conceived argument than what was presented to Commerce in the pre-initiation period, and for which the trial court issued a remand." As a result, it hasn't been exhausted administratively and isn't reviewable by the Federal Circuit, the brief said.
The government then argued that Commerce reasonably relied on shipment data as a proxy for production data. While the importer challenges the agency's use of shipment data, the U.S. said Tenaris "never challenged the validity of the industry source itself in its pre-initiation proceedings" and it "must do more than point out that this industry data was not perfect to show that petitioners lack industry standing."