ITC Failed to Differentiate Domestic Like Products, Petitioner Argued in CAFC Oral Argument

The International Trade Commission did not settle a "critical ambiguity" when defining the domestic like product in an investigation on fabricated structural steel from Canada, Chile and Mexico that found the imports did not harm the domestic industry, argued petitioner Full Member Subgroup of the American Institute of Steel Construction (AISC) in Jan. 10 oral arguments at the U.S. Court of Appeals for the Federal Circuit (Full Member Subgroup of the American Institute of Steel Construction v. United States, Fed. Cir. # 22-1176).

During the investigation, the ITC accepted data on non-fabricated structural steel pre-engineered building system parts and parts sold as complete pre-engineered building systems. AISC argued that the exclusion was ambiguous and that while it was clear that "finished buildings [were] out [of scope]," there remained ambiguity as to whether kits for prefabricated builders were also out of scope. AISC said that excluding only finished buildings was essentially, a "null set," saying that, "no producer involved in this investigation is shipping completed two-story buildings." If the commission believed that the "only thing excluded was a two-story building ... it had a responsibility to explain why it took that position," AISC argued.

The distinction is important, AISC said, because the implication is that the producer of the downstream article is the actual builder of the prefabricated structure. That builder is essentially a customer "who would never complain that the price is too low." If that is the case, AISC said, it would "turn the issue of the producer on its head and ... if allowed to stand, would prejudice [the] industry when it petitions in the future."