In post conference written filings, parties argued:

U.S. Producer Petitioners Supporting AD/CVD

During the 2020 to present U.S. International Trade Commission (ITC) period of investigation (POI), a surge in accused imports pummeled the U.S. market, taking huge sales from U.S. producers and inflicting material injury thereon.

ITC should define a single like product (i.e., all accused product in the AD/CVD petition) and make one injury decision whether all accused product as a group injures the U.S. industry (or threatens such injury), such that AD/CVD should be imposed on all such product as a group.

There are no countries with deemed negligible subject imports for a separate injury decision. The ITC should cumulate subject imposts from all accused countries, to determine if they as a group injure the U.S. industry, such that AD/CVD should be imposed on all of them.

Respondent Foreign Producers And U.S. Importers Opposing AD/CVD

There is no reasonable indication that a U.S. industry is materially injured or threatened with material injury by reason of the accused imports. Factors other than subject imports contributed to the domestic industry’s supply challenges during the POI, including chronic labor shortages and bottlenecks for aluminum feedstock that were exacerbated by the Long Beach port crisis, blockage of the Suez Canal and Ukraine War.

The scope of this petition is extraordinarily broad – even far more than the original investigation as to aluminum extrusions from China.

ITC should find that aluminum extrusions imported with non-extruded aluminum parts that are designed to be a part of a larger product or system are a separate like product from aluminum extrusions, warranting a separate ITC injury decision as to. Specifically, for instance, ITC should make separate injury decisions as to pipes and tubes, window wall systems, water heater anodes, and RV subassemblies. ITC should follow its practice to define pipe and tubes as a distinct domestic like product for a separate injury decision.

Accused imports from Vietnam, Thailand, Dominican Republic and Colombia are negligible, warranting a separate ITC injury decision for each country and exclusion from the case.

Certain imports from Mexico do not compete with extrusions made in USA – i.e., Mexico extruded pipe and tube imports are precision products that do not compete with USA-made general extrusions. They should get a separate injury determination where no injury found.

When analyzing quarterly pricing data for Mexico, imported product generally ships directly from the Mexican plant without stopping at a U.S. distribution warehouse. This can lead to a distorted price comparison with USA-made product insofar as importers are deducting not only U.S. freight, but also the Mexican inland freight component.

Commentary

It is unlikely that the ITC will have time or information to assess claims in its preliminary injury decision. So ITC is likely to vote therein to continue the case until a final injury decision 12+ months from now, and allow all to provide more information and argument.

Petitioners made their case based on ITC questionnaire responses submitted to date. Respondents did not. ITC heavily bases its decisions on received questionnaire responses.

Even if accused imports from an individual country are under 3% of total imports (so claimed negligible), they can be combined with other similarly situated accused imports from other countries, where if in aggregate the so-called negligible countries are over 7.5% of imports, they are then still cumulated with imports from all other accused countries for one injury decision.

To separate out a product for separate injury decision, the ITC looks for a clear dividing line between that product and all other accused product, before it will make a separate injury decision for that one product. The ITC did so only once in the original China extruded aluminum AD/CVD investigation – i.e., for heat sinks, where ITC found that such extrusions were designed for heat dissipation unlike all other aluminum extrusions. Generally the ITC finds a continuum of product within the scope of the AD/CVD petition where there is no clear dividing line to break out a few products for a separate injury decision.

Claims that there are other causes of U.S. industry difficulty, other than accused imports, that fully (100%) account for any difficulty that the U.S. industry is suffering almost never win. Reasons: (a) accused imports only need be a cause of injury to U.S. industry (and not even an important cause) for injurious imports to be found, and AD/CVD imposed; and, (b) a U.S. industry suffering from other causes of injury is deemed more vulnerable to injury from AD/CVD imports, warranting AD/CVD import duties.

As noted before, the ITC generally votes to continue an AD/CVD investigation to a final injury investigation 10+ months later. Only in rare cases does the ITC end an AD/CVD case by an ITC preliminary no injury finding, and generally when the U.S. industry is making so much money that ITC concludes that it would not possibly be injured by imports, or be so threatened. In a final injury investigations, the ITC finds no injury from dumped and/or subsidizes imports, and ends the matter such that no AD/CVD import duties imposed, in about 30%-50% of cases, varies over time.

The ITC preliminary injury decision whether to continue the AD/CVD investigation is due November 17, 2023. The ITC will issue its full written opinion several weeks later. Such written ITC opinions are often closely read to understand ITC concerns, for best argument and prospects for the ITC final injury decision some 10+ months from now.