PAO TMK v. United States

1

PAO TMK, Plaintiff, v. UNITED STATES, Defendant, and UNITED STATES STEEL CORPORATION and VALLOUREC STAR, LP, Defendant-Intervenors.

No. 21-00532

Slip Op. 24-119

Court of Appeals of International Trade

October 25, 2024

[The court sustains the agency's redetermination.]

Daniel J. Cannistra, Crowell & Moring LLP, Washington, DC, on the comments for Plaintiff.

Dominic L. Bianchi, General Counsel; Andrea C. Cas-son Assistant General Counsel for Litigation; and Madeline R Heeren, Attorney-Advisor, Office of the General Counsel, U.S International Trade Commission, Washington, DC, on the comments for Defendant.

Thomas M. Beline and Mary Jane Alves, Cassidy Levy Kent (USA) LLP, Washington, DC, on the comments for Defendant-Intervenor United States Steel Corporation. Roger B. Schagrin and Elizabeth J. Drake, Schagrin Associates, Washington, DC, on the comments for Defendant-Intervenor Vallourec Star, LP.

Before: M. Miller Baker, Judge

OPINION

M. Miller Baker, Judge

This case involving the International Trade Commission's conclusion that imports of Russian seamless pipe are non-negligible for purposes of a material injury determination returns following remand, where the Commission stood its ground. Finding the agency's decision supported by substantial evidence, the court sustains it.

I

In 2020, the Commission found that purchases of seamless pipe from Russia just barely exceeded the statutory negligibility threshold (three percent of all such imports). PAO TMK v. United States, Ct. No. 21-00532, Slip Op. 23-150, at 4-6, 2023 WL 6939242, at **1-2. (CIT Oct. 12, 2023).^[1] PAO TMK, a Russian producer, challenged that determination. As relevant here, the court remanded for the agency to address U.S. Customs and Border Protection data contradicting the conclusion that only Company A obtained seamless pipe from Germany and only Company B did so from Mexico. Id. at 9, 2023 WL 6939242, at *3.^[2]

This matters because the Tariff Act of 1930, as amended, requires dividing the amount of in-scope purchases^[3] from a given country (here, Russia) during the relevant period (the numerator) by the total quantity of in-scope goods imported from all nations in that same period (the denominator). See 19 U.S.C. § 1677(24)(A)(i); see also Slip Op. 23-150, at 3, 2023 WL 6939242, at *1 (quoting the statute). Acquisitions from a country are "negligible"-and not subject to antidumping and countervailing duties-if they "account for less than 3 percent" of the total volume. 19 U.S.C. § 1677(24)(A)(i). If seamless pipe buys from Germany and Mexico were higher than what the Commission originally found, it would increase the denominator for purposes of that calculation and thereby reduce Russia's relative share, which the agency previously found teeters on the statutory knife's edge.

On remand, the Commission found nothing to contradict its findings that Companies A and B "were the only known importers" of in-scope pipe from Germany and Mexico. Appx0060129 (emphasis added). It explained that the Customs data included purchases both within and beyond the orders' ambit and did not precisely align with the applicable HTS codes. Id. Furthermore, the codes themselves included both sorts of products. Id. Thus, the agency concluded that the Customs data alone do not allow for a determination of whether the orders encompass the reported imports. Id.

The Commission noted that such a determination requires either questionnaire responses or other company-specific information, but the only responses identifying in-scope imports from Germany and Mexico were from Companies A and B, respectively. Appx0060129-0060130. It acknowledged that the Customs data showed that other companies bought from those two countries, but said the data were inconclusive as to scope. Appx0060130. The agency therefore relied on the two questionnaire responses as reasonable estimates of the overall volume of in-scope imports from Germany and Mexico because the Customs data did show that Companies A and B were by far the largest steel pipe importers during the relevant period. Appx0060131-0060133.^[4] It thus reaffirmed its original determination that purchases from Russia were just barely over three percent of the total and therefore non-negligible. Appx0060135-0060136.

II

TMK challenges the Commission's redetermination on three grounds. First, it attacks the agency's refusal to reopen the record. See ECF 112, at 2-4. Second, it asserts that substantial evidence does not support the finding that Company A is the "only importer" from Germany. Id. at 4-7. Finally, it makes a similar argument about Company B and Mexico. Id. at 7-9. Each of these contentions fails.

A

In its notice of remand proceedings, the Commission announced that it was "not reopening the record and [would] not accept the submission of new factual information . . . ." Appx0060003. TMK argues that the agency should have done exactly that as to both remanded issues because the original determination was based on incomplete data from Customs. ECF 112, at 3-4. The Commission responds that the company never objected to its decision to rely only on the existing record. ECF 110-1, at 13-14.

Under exhaustion doctrine, courts help parties that help themselves before federal agencies. Having failed to ask the Commission to reopen the record, it's now too late for TMK to complain: "Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." Deseado Int'l, Ltd. v. United States, 600 F.3d 1377, 1380-81 (Fed. Cir. 2010) (quoting United States v. Tucker Truck Lines, 344 U.S. 33, 37 (1952)).

B

TMK argues that the Commission erred in relying solely on Company A's initial questionnaire to determine in-scope imports from Germany because the Customs data show that other companies also made such buys. ECF 112, at 5-6.^[5] It claims that by not using that data, the agency erroneously omitted other acquisitions from the negligibility analysis, so the remand results are "indistinguishable from [the] original determination that was found to be unlawful." ECF 112, at 6-7. The Russian company asks the court to order the Commission to include German imports from those other entities. Id. at 4.

TMK mischaracterizes the remand instructions. The court ordered the agency "to address the Customs data." Slip Op. 23-150, at 9, 2023 WL 6939242, at *3 (emphasis added). The Commission did so and explained that as the data were inconclusive, they were useless for assessing the total volume of in-scope pipe. Appx0060129. Because Company A's imports represented an overwhelming portion of the German total, the agency found it reasonable to use its purchases as the best estimate available for total in-scope imports from that country. Appx0060132-0060133. TMK offers no meaningful response. The agency's explanation accords with the statute's allowance for "reasonable estimates on the basis of available statistics," 19 U.S.C. § 1677(24)(C), so the court sustains it.

C

Finally, TMK challenges the Commission's reliance on Company B's initial questionnaire response to estimate in-scope imports of seamless pipe from Mexico. The Russian entity contends that because the Customs data showed that there were other businesses also buying in-scope Mexican pipe, the agency should have begun "its analysis with the official statistics and sub-tract[ed] out-of-scope import volumes on the record," that is, Company B's, the only importer that disclosed out-of-scope Mexican purchases. ECF 112, at 7-8.

TMK's argument 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. The agency reasonably explained that because 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. Appx0060130-0060132. As with the German analysis, the court holds that explanation is supported by substantial evidence and consistent with the statute.

** *

The court sustains the International Trade Commission's remand redetermination. A separate judgment will issue. See USCIT R. 58(a).

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^[1] The court presumes the reader's familiarity with its previous opinion, including its use of pseudonyms for confidential...