                                      Slip. Op. 19-154

                UNITED STATES COURT OF INTERNATIONAL TRADE

AUTOLIV ASP, INC.,

                        Plaintiff,

                  v.

UNITED STATES,
                                                   Before: Leo M. Gordon, Judge
                        Defendant,
                                                   Consol. Court No. 18-00037
                  and

ARCELORMITTAL TUBULAR
PRODUCTS, MICHIGAN SEAMLESS
TUBE, LLC, PTC ALLIANCE CORP.,
WEBCO INDUSTRIES, INC.,
ZEKELMAN INDUSTRIES, INC., and
PLYMOUTH TUBE CO., USA,

             Defendant-Intervenors.



                                         OPINION

[Sustaining final affirmative material injury determinations.]

                                                                 Decided: December 6, 2019

       Kenneth G. Weigel and Chunlian Yang, Alston & Bird LLP, of Washington, DC,
for Plaintiff Autoliv Asp, Inc.

      Brian R. Soiset, Attorney, Office of the General Counsel, U.S. International Trade
Commission, of Washington, DC, for Defendant United States International Trade
Commission. With him on the brief were Dominic L. Bianchi, General Counsel, and
Andrea C. Casson, Assistant General Counsel for Litigation.

      R. Alan Luberda, Kathleen W. Cannon, and Melissa M. Brewer, Kelley Drye and
Warren LLP, of Washington, DC, for Defendant-Intervenors Arcelormittal Tubular
Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc.,
Zekelman Industries, Inc., and Plymouth Tube Co., USA.
Consol. Court No. 18-00037                                                      Page 2


      Gordon, Judge:     This consolidated action involves the final affirmative material

injury determinations by the U.S. International Trade Commission (“ITC” or

“Commission”) in the countervailing duty (“CVD”) and antidumping duty (“AD”)

investigations into imported cold-drawn mechanical tubing (“CDMT”) from various

countries. See Cold-Drawn Mechanical Tubing from China and India, 83 Fed. Reg.

4,269 (Int’l Trade Comm’n Jan. 30, 2018), and Cold-Drawn Mechanical Tubing from

China, Germany, India, Italy, Korea, and Switzerland, 83 Fed. Reg. 26,088 (Int’l Trade

Comm’n June 5, 2018), respectively (“Final Determinations”); see also Cold-Drawn

Mechanical Tubing from China and India, Inv. Nos. 701-TA-576-577 (CVD Final),

USITC Pub. 4755 (Jan. 2018), PD1 218 (“Views”), and Cold-Drawn Mechanical Tubing

from China, Germany, India, Italy, Korea, and Switzerland, Inv. Nos. 731-TA-1362-1367

(AD Final), USITC Pub. 4790 (May 2018), PD 271.

      Before the court is the USCIT Rule 56.2 motion for judgment on the agency

record filed by Plaintiff Autoliv ASP, Inc. (“Autoliv”). See Pl.’s Mot. for J. on the

Agency R., ECF No. 28 (“Pl.’s Mot.”); see also Def.’s Resp. to Pl.’s Mot. for J. on the

Agency R., ECF No. 29 (“Def.’s Resp.”); Def.-Intervenors Arcelormittal Tubular

Products, Michigan Seamless Tube, LLC, PTC Alliance Corp., Webco Industries, Inc.,

Zekelman Industries, Inc., and Plymouth Tube Co., USA’s Resp. Opp. Pl.’s Mot. for J.

on the Agency R., ECF No. 30 (“Def.-Intervenors Resp.”); Pl.’s Reply in Supp. of Mot.

for J. on the Agency R., ECF No. 31 (“Pl.’s Reply”). The court has jurisdiction pursuant

1“PD” refers to a document in the public administrative record, which is found in ECF
No. 22, unless otherwise noted. “CD” refers to a document in the confidential
administrative record, which is found in ECF No. 21, unless otherwise noted.
Consol. Court No. 18-00037                                                          Page 3


to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C.

§ 1516a(a)(2)(B)(i), 2 and 28 U.S.C. § 1581(c) (2012). For the reasons set forth below,

the ITC’s final affirmative injury determinations are sustained.

                                      I. Background

       The statute governing unfair trade investigations requires a determination by the

Commission on whether imported articles within the scope of a particular investigation

(the “subject merchandise”) have injured a domestic industry. See 19 U.S.C. §§ 1671,

1673. Domestic “industry” is defined as “the producers as a whole of the domestic like

product….” 19 U.S.C. § 1677(4)(A). Three types of domestic injury are identified by

statute: material injury, threat of material injury, or material retardation of the

establishment of an industry. See 19 U.S.C. §§ 1671d(b)(1), 1673d(b)(1). There must

be a causal nexus between a type of injury and imports of the subject merchandise, i.e.,

the injury must result “by reason of” imports of the subject merchandise. Id.

       In order to make its determination, the Commission compares subject

merchandise to its U.S. domestic counterpart, which by statute must be a product

“which is like, or in the absence of like, most similar in characteristics and uses with, the

article subject to an investigation.” 19 U.S.C. § 1677(10). The Commission relies on the

“scope” of the subject merchandise provided by the U.S. Department of Commerce

(“Commerce”) to serve as the outside parameter for defining the domestic like product.

See Views at 5 & n.13; see, e.g., NEC Corp. v. Dep't of Commerce, 22 CIT 1108, 1110



2 Further citations to the Tariff Act of 1930, as amended, are to relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 18-00037                                                      Page 4


(1998) (“[a]lthough the Commission must accept the determination of Commerce as to

the scope of the imported merchandise sold at less than fair value, the Commission

determines what domestic product is like the imported articles Commerce has

identified”).

       If subject merchandise involves a range of products, as here, the Commission

generally does not consider each iteration of merchandise to be a separate like product.

Instead, the Commission considers the grouping of products to constitute a single

domestic like product, and it will disregard minor variations among them absent a “clear

dividing line” between particular products in the group. See Nippon Steel Corp. v. United

States, 19 CIT 450, 455 (1995) (the ITC “disregards minor differences, and looks for

clear dividing lines between like products”); see also Tapered Roller Bearings from

China, Inv. No. 731-TA-344 (Fourth Review), USITC Pub. 4824 at 5–14 (Sept. 2018)

(describing variety of sizes specifications, and applications for tapered roller bearings

but defining a single domestic like product without clear dividing lines between

products). 3

       In determining the domestic like product here, the Commission relied on

Commerce’s definition of the scope, namely, all CDMT of carbon and alloy steel of


3 The following factors are considered in the Commission’s like-product analysis: (1)
physical appearance, (2) interchangeability, (3) channels of distribution, (4) customer
perceptions, (5) common manufacturing facilities and production employees, and where
appropriate, (6) price. See NEC Corp., 22 CIT at 1110. These factors are not
exhaustive, as an investigation may give rise to other considerations relevant to the
factual determination on the domestic like product, and the Commission’s practice in
defining domestic like product is on a case-by-case basis with no single factor
considered dispositive. See, e.g., Views at 5.
Consol. Court No. 18-00037                                                       Page 5


circular cross-section, 304.8 mm or more in length, in actual outside diameters less than

331 mm, and regardless of wall thickness, surface finish, end finish, industry

specification, production process (e.g., welded or seamless), further heat treatment or

cold-finishing operations, or dual/multiple certification to standards. See Views at 5–6.

Commerce’s scope definition broadly covered CDMT steel products in which (1) iron

predominates, by weight, over each of the other contained elements, and (2) the carbon

content is two percent or less by weight. See id. at 6. In reaching its conclusion

regarding injury, the Commission determined that there was a single domestic like

product “that is coextensive with the scope of investigations.” Id. at 15.

       Autoliv imported “airbag tubing” for use in the manufacture of automotive safety

airbag systems during the respective periods of the investigations (“POIs”) of imported

CDMT. In its comments to the Commission on the definition of the domestic like

product, Autoliv did not dispute that the scope conceptually covered airbag tubing.

Nevertheless, Autoliv contended that airbag tubing was a critical component of its

production of airbag safety systems and that there was a “clear dividing line” in terms of

production process, chemical and mechanical properties, and uses, between airbag

tubing and CDMT generally. See, e.g., Views at 10–11, 13–15; Pl.’s Mot. at 4 (citing

Prehearing Brief of Autoliv at 3, PD 165, CD 524). Autoliv further maintained that airbag

tubing must be extremely hard, and at the same time ductile, in order to meet its critical

safety purposes, and that there was no production currently of the domestic equivalent

of airbag tubing nor did the domestic industry have plans to produce it. Id. Autoliv

argued that the absence of domestic production did not preclude the Commission from
Consol. Court No. 18-00037                                                         Page 6


finding airbag tubing to be a separate domestic like product and that the Commission

should have, in these circumstances, considered whether domestic production of airbag

tubing was materially retarded under the third prong of the statute.

      In response, the petitioners argued that Autoliv did not timely file comments

requesting the Commission to collect separate data on U.S.-produced products like or

most similar to airbag tubing. See Views at 10. Petitioners further contended that

Autoliv’s argument for a material retardation analysis was misplaced because Autoliv

did not and could not allege the existence of material retardation, given that there is an

established domestic industry producing CDMT that had previously produced airbag

tubing and that retains the equipment to do so. See id. at 10, 14.

      Ultimately the Commission agreed with the petitioners, explaining that the statute

precluded it from considering airbag tubing as a separate domestic like product because

there were no “like” domestic products or production of airbag tubing during the POIs.

See id. at 14–15. The ITC observed that the domestic industry included U.S. producers

who had previously manufactured airbag tubing and did not currently manufacture

airbag tubing but retained the capacity to do so. Id. at 14. Accordingly, the Commission

determined that imports of CDMT from China, Germany, India, Italy, Korea, and

Switzerland caused material injury to a U.S. industry. See Final Determinations.
Consol. Court No. 18-00037                                                     Page 7


                                II. Standard of Review

      The court sustains the Commission’s “determinations, findings, or conclusions”

unless they are “unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C § 1516a(b)(1)(B)(i). More specifically, when reviewing

agency determinations, findings or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole. Nippon

Steel Corp v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir. 2006). Substantial

evidence has been described as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Substantial evidence has also been described as “something less

than the weight of evidence, and the possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s findings from being

supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620

(1966). Fundamentally, though, “substantial evidence” is best understood as a word

formula connoting a reasonableness review. 3 Charles H. Koch, Jr., Administrative Law

and Practice § 9.24[1] (3d ed. 2019). Therefore, when addressing a substantial

evidence issue raised by a party, the court analyzes whether the challenged agency

action “was reasonable given the circumstances presented by the whole record.” 8A

West’s Fed. Forms, National Courts § 3.6 (5th ed. 2019).

      Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837. 842–45 (1984), governs judicial review of the
Consol. Court No. 18-00037                                                          Page 8


Commission’s interpretation of the Tariff Act. See United States v. Eurodif S.A., 555

U.S. 305, 316 (2009) (An agency's “interpretation governs in the absence of

unambiguous statutory language to the contrary or unreasonable resolution of language

that is ambiguous.”).

                                      III. Discussion

       Autoliv contends that, even though there was no U.S. production of airbag tubing

during the POIs, the Commission’s decision not to define airbag tubing as a separate

domestic like product is unlawful. See Pl.’s Mot. at 3–14. Autoliv maintains that, given

these circumstances, 19 U.S.C. §§ 1671d(b) and 1673d(b) require that the Commission

conduct a material retardation analysis, which the Commission failed to do. Id. at 15–16.

Autoliv also argues that it was unreasonable for the Commission to conclude that

Autoliv did not identify a domestically produced variant that is most similar in

characteristics and uses with airbag tubing. Lastly, Autoliv contends that the

Commission has the burden to gather the requisite factual information and identify a

suitable domestic like product for the purpose of determining whether airbag tubing

constitutes a separate like product. Id. at 17–19.

               A. Statutory Interpretation of “Domestic Like Product”

       In considering the proper interpretation of “domestic like product” under

19 U.S.C. § 1677(10), the court applies the two-step framework of Chevron. Under step

one of Chevron, the court considers whether Congressional intent on the issue is clear.

See Chevron, 467 U.S. at 842–43 (“First, always, is the question whether Congress has

directly spoken to the precise question at issue. If the intent of Congress is clear, that is
Consol. Court No. 18-00037                                                       Page 9


the end of the matter; for the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.”). If the court cannot identify a clear

expression of Congressional intent and concludes that the statutory provision is silent or

ambiguous as to the contested issue, the court turns to the second prong and

determines whether Commerce's interpretation of the statute is reasonable. See id.

       Autoliv argues that “[t]he Commission’s interpretation of the industry and

domestic like product definitions is inconsistent with the text of the statute and

Congress’s purpose and intent in enacting the antidumping and countervailing duty

laws.” Pl.’s Mot at 7. Specifically, Autoliv maintains that:

              The statute, 19 U.S.C. § 1677(10), defines the domestic like
              product with reference to ‘a product… (importantly, not ‘a
              domestic product’ nor ‘domestically manufactured product’)
              which is like … or most similar… with the article subject to
              an investigation.’ Thus, the statute unequivocally defines the
              domestic like product with reference to ‘a product’ identical
              or most similar to the imported subject merchandise, and not
              to domestically produced items.

Id. at 9. Autoliv thus contends that “the plain language in the statute … [requires] that

the Commission must first determine the like product(s) subject to the investigations –

here one of them is airbag tubing – and then the domestic ‘like product’ that is like or

similar to airbag tubing and use that to define the U.S. industry to consider for Injury

purposes.” Id. at 10.

       The Commission agrees with Plaintiff that the meaning of “domestic like product”

is clear and unambiguous. However, it maintains that Autoliv’s interpretation improperly

relies on in-scope imports to define a non-existent “domestic” like product. See Views
Consol. Court No. 18-00037                                                         Page 10


at 13. The Commission argues that Autoliv’s proposed definition of like product ignores

the “statute’s mandate to identify a domestic item that is like or most similar to subject

imports.” Id. (emphasis added). The Commission explains that the statute provides that

when material retardation is not an issue in an investigation and no like product is

produced domestically, the Commission is to identify a domestic product that is “most

similar in characteristics and uses” to subject merchandise:

              The ITC will examine an industry producing the product like
              the imported article being investigated, but if such an
              industry does not exist and the question of material
              retardation of establishment of such an industry is not an
              issue before the ITC, then the ITC will examine an industry
              producing a product most similar in characteristics and uses
              with the imported article.

Def.’s Resp. at 10 (quoting S. Rep. No. 96-249, at 90 (1979), reprinted in 1979

U.S.C.C.A.N. 381, 476).

       The precise question at issue here is whether the Commission may define a

separate “domestic like product” that is not produced domestically. “In order to

determine whether a statute clearly shows the intent of Congress in a Chevron step-one

analysis, [the court] employ[s] traditional tools of statutory construction and examine[s]

‘the statute's text, structure, and legislative history, and appl[ies] the relevant canons of

interpretation.’” Heino v. Shinseki, 683 F.3d 1372, 1378 (Fed. Cir. 2012) (quoting

Delverde, SrL v. United States, 202 F.3d 1360, 1363 (Fed. Cir. 2000)).

       Plaintiff highlights that the statutory definition of “domestic like product” does not

refer to domestic production, thereby arguing that in circumstances where there is

no domestic production of a particular subject import, the statute contemplates that the
Consol. Court No. 18-00037                                                     Page 11


Commission “must first determine the like product(s) subject to the investigations … and

then the domestic ‘like product’ that is like or similar to airbag tubing and use that

to define the U.S. industry to consider for Injury purposes.” See Pl.’s Mot at 9–10.

The court disagrees. The text, structure, and legislative history of § 1677(10) convey a

clear Congressional intent that the Commission define a “domestic like product” with

respect to a product that is produced domestically.

      Notably, the statute does not expressly require or provide for any precise

methodology by which the Commission is to identify an appropriate domestic like

product. See 19 U.S.C. §§ 1677(4) & 1677(10). Rather, the statute simply states that

the Commission shall identify “a product which is like, or in the absence of like, most

similar in characteristics and uses with, the article subject to an investigation.” See

19 U.S.C. § 1677(10) (emphasis added). As the Commission notes, the legislative

history supports its interpretation that the term “domestic like product” was intended to

cover only domestically produced merchandise. See Def.’s Resp. at 8 (noting that

“when Congress in 1994 amended the term from ‘like product’ to ‘domestic like product’,

the Senate report confirmed that ‘like product’ under U.S. law ‘refers to

U.S. production.’” (quoting S. Rep. 103-412, at 33, (1994))); id. at 10 (“The ITC will

examine an industry producing the product like the imported article being investigated,

but if such an industry does not exist and the question of material retardation of

establishment of such an industry is not an issue before the ITC, then the ITC will

examine an industry producing a product most similar in characteristics and uses with

the imported article.” (quoting S. Rep. No. 96-249, at 90 (1979))).
Consol. Court No. 18-00037                                                        Page 12


       Plaintiff’s argument that the term “domestic like product” in 19 U.S.C. § 1677(10)

must be defined without reference to whether there is any domestic production of a

proposed “like” product is misplaced. The Commission’s interpretation of § 1677(10)

comports with the statutory language’s clear and unambiguous meaning. Autoliv’s

interpretation ignores the word “domestic” in the term “domestic like product” and runs

contrary to Congressional intent. Accordingly, the court sustains the Commission’s

interpretation of the term “domestic like product” in the Final Determinations.

                                B. Material Retardation

       Beyond its argument that the Commission must define “domestic like product”

by reference to subject imports (without regard to whether there is actually domestic

production of identical or similar products), Autoliv argues that in circumstances where

there is no domestic production of merchandise identical or similar to certain subject

imports, the Commission is statutorily required to consider whether subject imports were

materially retarding the establishment of a domestic industry for production of those

goods. See Pl.’s Mot. at 14–16 (“once [the Commission] found no U.S. production of

airbag tubing or a similar product, [it] was required by statute to consider if the

establishment of an industry in the United States is materially retarded.”). Autoliv

maintains that the use of the mandatory term “shall” in 19 U.S.C. §§ 1671d(b) and

1673d(b) demonstrates that “[w]hen there is no production of a domestic like product,

the statute requires the Commission to proceed to the question of material retardation of

establishment of an industry.” Id. at 15. Other than noting that §§ 1671d(b) and

1673d(b) direct that the Commission “shall make a final determination” as to material
Consol. Court No. 18-00037                                                         Page 13


injury to or material retardation of the establishment of a U.S. industry, Autoliv fails to

explain how the statutory language of §§ 1671d(b) and 1673d(b) conveys a clear

Congressional intent that answers the “precise question” of whether the Commission

must proceed with a material retardation analysis in circumstances where there is no

domestic production of an alleged separate like product. See Chevron 467 U.S. at 842–

43.

       Instead of presenting an argument under Chevron step one as it did with respect

to 19 U.S.C. § 1677(10), Autoliv argues that certain commissioners, and even the

Commission itself, have previously interpreted §§ 1671d(b) and 1673d(b) to provide for

a material retardation analysis where there is no commercial domestic production of a

particular product. See Pl.’s Mot. at 12–13, 15–16 (citing prior Commission decisions

involving the use of a material retardation analysis given the absence of domestic

production of a separate like product). As a result, Autoliv appears to suggest that the

Commission’s refusal to conduct a material retardation analysis in this matter is

unreasonable and violative of §§ 1671d(b) and 1673d(b) under Chevron step two.

As explained below, the court concludes that Autoliv’s reliance on certain Commission

precedent is misplaced and rejects Autoliv’s preferred statutory interpretation.

       Importantly, in the subject investigations, the Commission determined that the

statute did not mandate it to conduct a material retardation analysis since there was an

established domestic CDMT industry that had produced airbag tubing in the past and
Consol. Court No. 18-00037                                                          Page 14


which retained the productive capacity to produce airbag tubing. 4 See Views at 14.

The Commission reminded interested parties in its preliminary determinations that

“parties seeking a separate domestic like product for items not manufactured

domestically   must    identify   a   domestically   produced    variant   most   similar   in

characteristics and uses to such items.” Id. at 14–15. Given that Autoliv failed to identify

any such domestically produced variant, the Commission proceeded to define “a single

domestic like product that is coextensive with the scope of [Commerce’s]

investigations.” Id. at 15.

       The court agrees that the Commission reasonably interpreted the statute in

deciding not to conduct a material retardation analysis. As described above, Congress

plainly defined “domestic like product” in 19 U.S.C. § 1677(10) to encompass situations

where merchandise identical to the imported subject merchandise is not produced in the

U.S. domestically, i.e., “or in the absence of like, most similar in characteristics and

uses with, the article subject to an investigation under this subtitle.” See supra Part III.A.

The Commission explained that its determinations in other investigations consistently

demonstrate that “the Commission would not define a separate domestic like product for

items not produced domestically and for which parties had not identified a domestic

variant that was most similar in characteristics and uses.” Views at 14. The Commission


4 Autoliv responds regarding this point that “an industry that has not produced a product
since 2012 would seem to be a nascent industry.” Pl.’s Reply at 8. This response
ignores the ITC’s explanation as to why material retardation is not at issue in these
investigations and why domestic airbag tubing production is not a “nascent industry”
based on the information in the record. See Views at 14 (“Material retardation is not an
issue in these investigations. Petitioners have confirmed that they have in the past
manufactured airbag tubing and retain the capacity to do so.”).
Consol. Court No. 18-00037                                                      Page 15


further clarified that the separate domestic like product inquiry is distinct from any

obligation the Commission may have to consider material retardation of the

establishment of a domestic industry. See id. at n.57 (quoting Professional Electric

Cutting and Sanding/Grinding Tools from Japan, Inv. No. 731-TA-571, USITC Pub.

2536 (July 1992), at 6 (“A product not produced in the United States is not an

appropriate candidate for a separate domestic like product determination, unless

material retardation of the establishment of an industry in the United States is a genuine

issue. It is not an issue in this investigation.”)).

        The court has previously observed that “the lack of domestic production of

identical merchandise is not a basis for recognizing a separate domestic like product.”

Hitachi Metals Ltd. v. United States, 42 CIT ___, ___, 350 F. Supp. 3d 1325, 1342

(2018), appeal docketed, No. 19-1289 (Fed. Cir. Dec. 11, 2018). Autoliv fails to present

any arguments that lead the court to reach a different conclusion here. And contrary to

Autoliv’s proposed statutory interpretation, there is nothing inherent about the absence

of domestic production of identical “like” merchandise that necessitates that the

Commission commence a material retardation inquiry. See 19 U.S.C. §§ 1671d(b)(1),

1673d(b)(1); see also S. Rep. No. 96-249, at 90 (1979). Accordingly, the court sustains

the Commission’s decision in the Final Determinations not to consider whether there

was material retardation of the establishment of a domestic industry.

                C. Airbag Tubing as a Separate Domestic Like Product

       The Commission’s analysis of the domestic like product entails finding the

domestic product that corresponds to the subject imports, an inquiry that does not
Consol. Court No. 18-00037                                                      Page 16


involve a comparison of in-scope imports with one another, as Autoliv advocates.

Autoliv argues nonetheless that the onus was on the Commission to make that

determination, and that Autoliv should not have to bear the burden of placing evidence

on the record of the domestically produced product that is “most similar in

characteristics and uses with” subject imports of airbag tubing. Autoliv argues that in

other investigations the Commission itself has undertaken to ensure that the record

contained information about a suitable domestically produced variant of subject imports.

See Pl.’s Mot. at 17–18 (referencing Ferrovanadium and Nitrided Vanadium from

Russia, Inv. No. 731-TA-702 (Review), USITC Pub. 3420 at 5–6 (May 2001)

(“Ferrovanadium”) & Certain Frozen Fish Fillets from Vietnam, Inv. Nos. 731-TA-1095,

-1096, and -1097 (Preliminary), USITC Pub. 3533 at 5 (Aug. 2002) (“Frozen Fish

Fillets”)).

        Autoliv’s reliance on these prior determinations is misplaced. In Ferrovanadium,

the Commission indicated that it was accepting the domestic industry’s assertion that

domestically-produced ferrovanadium was the product most similar to subject imports of

nitride vanadium. See Ferrovanadium at 5 (citing testimony from counsel to domestic

industry at ITC hearing). In Frozen Fish Fillets, the Commission noted that the domestic

industry had identified frozen catfish fillets as the domestically produced item most

similar to subject imports. See Frozen Fish Fillets at 5 (highlighting that “[p]etitioners

argue that the product ‘most similar in characteristics and uses’ to subject imports is

frozen catfish fillets”). Read in context, both of these ITC determinations demonstrate

that the Commission solicits and relies on information provided by interested parties in
Consol. Court No. 18-00037                                                         Page 17


order to determine domestically produced articles that were “most similar in

characteristics and uses” to subject imports. These determinations do not support

Plaintiff’s contention that the Commission maintains an independent responsibility

to identify domestically-produced items to serve as the domestic like product in

circumstances where there is no domestic production of certain subject imports.

       As the Commission noted, 19 C.F.R. § 207.20(b) requires any and all “requests

for collecting new information” to be made by “parties to the investigation” in their

respective comments on the Commission’s draft questionnaires. See Def.’s Resp. at 13.

The Commission states that it “further reminded” parties of this obligation in its

preliminary views, requesting that the “parties” identify with “specificity” any product for

which they sought a separate domestic like product in comments on draft

questionnaires, and that in the final analysis Autoliv did not avail itself of that

opportunity. Views at 14–15 (referencing Cold-Drawn Mechanical Tubing from China

Germany, India, Italy, Korea, and Switzerland, Inv. Nos. 701-TA-576-577 and 731-TA-

1362-1367 (Preliminary), USITC Pub. 4700 at 10 n.22 5 (June 2017), PD 86

(“Preliminary Views”)). Autoliv responds that § 207.20(b) begins by stating: “The

Director shall circulate draft questionnaires for the final phase of an investigation … for

comment,” and Autoliv complains that it “was not provided drafts even though its views

were reflected in the Staff Report in the preliminary investigation.” Pl.’s Reply at 10

(referencing Preliminary Views at II-12 & n.34). Autoliv also contends that the


5 The court notes that the pincite in the Views is slightly inaccurate, and that the relevant
reminder language that ITC references may be found in the text of the conclusion on
page 13 of the Preliminary Views, as well as in footnote 22 on pages 8–9.
Consol. Court No. 18-00037                                                      Page 18


Commission’s procedural argument implies that the Commission lacks data with respect

to airbag tubing, but Autoliv maintains that “[t]he record is complete as to airbag tubing

on both the import and domestic sides.” Id.

      Autoliv, however, leaves unchallenged the Commission’s finding that airbag

tubing was not produced domestically during the respective POIs, and Autoliv has failed

to establish that the Commission acted unreasonably in refusing to define airbag tubing

as a separate domestic like product. See Hitachi Metals, 350 F. Supp. 3d at 1342. The

Commission does bear responsibility for making the ultimate legal determinations, but it

cannot do so in a vacuum, without the assistance of interested parties. The Commission

explained that it requires parties seeking a separate domestic like product determination

for imported items not made domestically to identify a domestically-produced item most

similar in characteristics and uses to the imported item. See, e.g., Views at 13 & n.52.

Given the absence of domestic production of airbag tubing, Autoliv should have heeded

the Commission’s suggestion (made in addressing another party’s similar argument)

to propose the domestic product that is “most similar in characteristics and uses” to the

subject merchandise that is imported airbag tubing and request the Commission

to undertake data collection for it. See Preliminary Views at 8–9 n.22 (“Hubei Steel

failed to identify any domestically manufactured product ‘most similar in characteristics

and uses with’ imported cold-drawn alloy seamless tubing …. Even if there is no

domestic production of the product, because Hubei Steel has not identified a

domestically produced variant that is ‘most similar in characteristics and uses with’ this

product, we determine not to define it as a separate domestic like product.”). Autoliv is
Consol. Court No. 18-00037                                                    Page 19


the party best positioned to understand and clarify the parameters of such a request,

not the Commission.

       Autoliv argues that it did not propose any comparable product beyond airbag

tubing itself because “There is no U.S. Product Similar to Airbag Tubing.” See Pl.’s

Reply at 4–5. However, contradictorily, Autoliv also argues that it suggested to the

Commission that the product most “like” airbag tubing is “other types of CDMT.” See

Pl.’s Mot. at 19; Pl.’s Reply at 5. Given that the Commission defined a “single domestic

like product that is coextensive with the scope of the investigations,” (i.e., CDMT),

the court cannot agree with Plaintiff’s contention that the ITC’s domestic like product

determination was unreasonable.

                                    III. Conclusion

       Based on the foregoing, the court sustains the Final Determinations. Judgment

will enter accordingly.



                                                          /s/ Leo M. Gordon
                                                       Judge Leo M. Gordon

Dated: December 6, 2019
       New York, New York
