Slip. Op. 19-154 

UNITED STATES COURT OF INTERNATIONAL TRADE 

 

 

Before: Leo M. Gordon, Judge 

 

Consol. Court No. 18-00037 

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. 

AUTOLIV ASP, INC.,

 Plaintiff,

 v.

UNITED STATES,

 Defendant,

and

ARCELORMITTAL TUBULAR 

PRODUCTS, MICHIGAN SEAMLESS 

TUBE, LLC, PTC ALLIANCE CORP., 

WEBCO INDUSTRIES, INC., 

ZEKELMAN INDUSTRIES, INC., and 

PLYMOUTH TUBE CO., USA,

 Defendant-Intervenors.
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-TA1362-1367 (Preliminary), USITC Pub. 4700 at 10 n.225 (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