OCTG Domestic Producers Say Importer’s CAFC Appeal Unpersuasive
Domestic producers led by U.S. Steel said that importer Tenaris Bay City’s appeal of a Commerce Department industry support finding to the U.S. Court of Appeals to the Federal Circuit repeated flawed, sometimes waived arguments (Tenaris Bay City v. United States, Fed. Cir. # 25-1382).
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As Commerce couldn’t reasonably locate total domestic oil country tubular goods (OCTG) production information during the relevant review period, it reasonably relied on 2020 domestic shipment information as a proxy, U.S. Steel said in an opening opposition brief (see 2503250048). The importer’s two unexhausted claims are that 2020 shipment data Commerce used to establish industry support was underinclusive and that the department wrongly aggregated domestic producers and processors of OCTG, it said.
“From these alleged evidentiary failures, Tenaris reverse-engineers various violations of the antidumping statute, relying on dictionary definitions and Microsoft Word’s bold and italics functions instead of relevant case law,” it said.
Tenaris calls the 2020 shipment data inaccurate for lacking processor volumes, but this “turns on a basic misreading of the evidence,” the domestic producer said. In a largely redacted section of its brief, it called the importer’s “sole substantive argument” about the reliability of the data “factually inaccurate.”
Commerce had already considered the argument, too, and rejected it, U.S. Steel said.
Further, “Tenaris did not put any evidence on the record to refute or undermine Defendant-Appellees’ data source,” it said. “Rather, Tenaris made the strategic choice to present a binary call for Commerce’s consideration -- either poll the industry directly or reject the Petitions.”
The department also considered the possibility of double-counting, responding to CIT’s remand order, and discounted it, the domestic producer said. Nothing on the record has ever indicated double-counting, it said. Tenaris only provided a few pieces of evidence in support of its argument: printouts of certain pages from the websites of two allegedly double-counting OCTG producers, PTC Liberty and Borusan, as well as documents such as an International Trade Commission publication.
But the websites only show that both companies were “primarily” producing OCTG products domestically; they show Borusan also imported green tube, but that tube was further processed into additional OCTG -- preventing double-counting, it said.
U.S. Steel also claimed that the importer has, throughout the course of this process, “unsuccessfully searched for a winning argument.” This “has forced Tenaris to repeatedly debut new arguments at each stage of the proceeding and, often, to reverse positions it has previously taken,” it said.
As a result, it said, Tenaris had waived a number of different arguments: that Commerce was required to “mount its own independent and highly exacting investigation into the industry support evidence”; that the 2018-19 shipment data the department used to adjust 2020 shipment data it did use to calculate industry support was underinclusive; that 2020 shipment data itself was underinclusive; and that it was a violation of statute to aggregate producer and processor data, and the 2020 shipment data did so incorrectly.