Steel Construction Trade Group Seeks Reversal of ITC's Non-Injury Finding on Structural Steel

The U.S. Court of Appeals for the Federal Circuit should reverse the Court of International Trade's judgment sustaining the International Trade Commission's finding that imports of fabricated structural steel from Canada, Chile and Mexico did not harm the domestic industry, petitioner Full Member Subgroup of the American Institute of Steel Construction (AISC) said in a May 27 reply brief. The appellees in the case are "not even in agreement amongst themselves" over what the ITC decided in the case or why, and they have "failed to adequately defend" the "specific legal issues" raised by AISC, the brief said (Full Member Subgroup of the American Institute of Steel Construction v. United States, Fed. Cir. #22-1176).

In the investigation, the commission decided in a 3-2 vote that domestic industry was not injured by the fabricated structural steel imports. At CIT, AISC argued against the ITC'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 and non-fabricated structural steel components of the building systems. Judge Claire Kelly ruled against this argument, however (see 2110050071).

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 fabricated structural steel from both purchasers and producers for the final phase of the investigation. The court 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 fabricated structural steel is primarily sold through a bidding process, because of difficulties encountered in getting this data. 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.

In its appeal to the Federal Circuit, AISC argued that the commission failed to settle an ambiguity in the domestic like product by accepting data on non-fabricated structural steel pre-engineered building system parts and building system parts sold as complete pre-engineered building systems. "AISC specifically challenges the notion that a decision made by implication -- referring to Appellees' and the CIT's insistence that the Commission must have made an affirmative determination because it ultimately accepted the disputed data -- satisfies the agency's obligation to articulate a reason for any such determination," the brief said.

AISC said that, contrary to what the appellees argued, issues over the domestic like product are the commission's to resolve. "If true -- i.e., if the Commission were prohibited from offering guidance until after it has issued its final views -- then the parties to every investigation would be free to decide for themselves what products to report, leaving the Commission to contend with whatever data it receives," the brief said. "Plainly, that is not the case, as even the Commission contends that it did issue guidance (however unhelpful) in its January 29, 2020 email."

The appellant went on to argue that the ITC's price effects finding is "tainted" by the decision not to seek available information. The trade court, along with the commission, suggested that the obligation to collect information for its analysis is limited to uses of the statute's "product line provision." Pointing to multiple past CIT decisions, AISC said that the ITC cannot rely on the absence of information it chose not to pursue and that the "Appellees either misunderstand this argument or sidestep it."