Trade Court Backs ITC's No Domestic Industry Injury Finding From Fabricated Structural Steel Imports

The Court of International Trade sustained the International Trade Commission's finding that imports of fabricated structural steel (FSS) from Canada, Chile and Mexico did not harm the domestic industry, in a Sept. 22 opinion made public on Oct. 5.

The case was brought by Full Member Subgroup of the American Institute of Steel Construction -- a trade association of domestic FSS manufacturers, which was petitioner in the investigation. The commission decided in a 3-2 split vote that domestic industry was not injured by the FSS imports.

AISC argued against the commission's inclusion of NCI and BlueScope's data, finding that the data should've been excluded since the data was for allegedly out-of-scope complete pre-engineered metal building systems (PEMBS) and non-FSS components of PEMBS.

"It is reasonably discernible that the Commission concluded that non-loadbearing FSS components were in-scope, and that data relating to such components were properly included," Judge Claire Kelly countered. "Therefore, the Commission’s determination that NCI and BlueScope did not include data for out-of-scope merchandise was in accordance with law and supported by the record. ... Given the Commission’s documented efforts to ensure that the NCI and BlueScope data was in-scope, Plaintiff’s assertion that the Commission acted arbitrarily is baseless."

AISC also said that the ITC failed to seek out pricing product data or bid data relating to initial offers for projects involving the sale of FSS from both purchasers and producers for the final phase of the investigation. The court, though, found that the commission's methodological choices were reasonable. The ITC said that it turned down the prospect of gathering more pricing product or bid data even though FSS is primarily sold through a bidding process because of difficulties encountered in getting this data.

"Although the Plaintiff argues that the Commission ignored its suggestions, the Commission reasonably determined that requesting additional pricing product data would not lead to probative evidence," Kelly said. "The Commission noted irregularities with the data and difficulties it encountered when soliciting responses from U.S. producers during the preliminary phase. The Commission explained that Petitioner’s suggestion to collect pricing product data for the same six categories, plus an additional seventh category consisting of all FSS, did little to address the problems the Commission encountered in the preliminary phase of the investigations."

The court also sided with the commission on the general prospect of its injury determination, ruling that the no injury finding was properly supported in light of the whole record.

(Full Member Subgroup of the American Institute of Steel Construction, LLC v. United States, Slip Op. 21-125, CIT #20-00090, dated 09/22/21, Judge Claire Kelly. Attorneys: Adam Teslik of Wiely Rein for plaintiff AISC; John Henderson for defendant U.S. government)