CIT Bumps Dual-Stenciled Pipe From Scope of AD Order Due to No ITC Injury Determination
The Commerce Department was wrong to include dual-stenciled pipe imported as line pipe within the scope of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, the Court of International Trade said in an Oct. 6 order, remanding the scope ruling to Commerce for further consideration. Seeing as there were no Thai manufacturers who even made line pipe at the time of the AD order, the ITC therefore never made an injury determination on line pipe from Thailand. This led Judge Stephen Vaden to hold that line pipes are excluded from the scope of the order.
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At the crux of the dispute is a difference between standard pipe and line pipe. Among other differences, standard pipe is made to American Society of Testing and Materials (ASTM) specifications while line pipe is made to American Petroleum Institute (API) specifications. Dual-stenciled pipe has received both an ASTM and API stencil, meeting the standards for both standard and line pipe. The original AD petition in 1985 wanted duties on standard, line and dual-stenciled pipe, but no Thai company made line pipe in 1985. So, the ITC never made a material injury finding regarding line pipe or dual-stenciled pipe from Thailand.
Subsequent sunset reviews of the antidumping duty order were carried out every five years from 2000, starting after the passage of the Uruguay Round Agreements Act. Each review found that CWP orders from Thailand have no express exclusions for excluded products, including line pipe, and also continued to hold that line pipe was not within the scope of the AD orders on standard pipes.
Then, after 34 years, Commerce issued a scope ruling that said that line pipe was in the scope of the Thai order. Saha Thai then appealed this ruling to CIT.
Central to Vaden's ruling on this scope issue is the fact that the ITC never made an injury determination with regard to line pipe from Thailand. The defendants, comprising the Justice Department and Wheatland, argued that the original ITC investigation only excluded line pipe and didn't expressly exclude dual-stenciled pipe. Since dual-stenciled pipe gets both an ASTM and API stencil, any good with an ASTM stencil falls within the injury determination, the defendants said.
Vaden disagreed. "Commerce cannot impose a duty on a fiction," the decision said. "API stenciled pipes, i.e. line and dual-stenciled pipes, were omitted by the decision of the petitioners themselves from the ITC’s original injury investigation. The parties have also admitted that Thailand did not produce line pipes, dual-stenciled or otherwise, at the time the ITC conducted its injury investigation. ...
"Allowing Commerce to assess such duties without an injury determination 'would itself frustrate the purpose of the antidumping laws.' ... And finding that the ITC determined a product that did not yet exist somehow injured domestic industry would frustrate common sense."
(Saha Thai Steel Pipe Public Company, LTD v. United States, Slip Op. 21-135, CIT #20-00133, dated 10/06/21, Judge Stephen A. Vaden. Attorneys: Daniel Porter of Curtis Mallet-Prevost for plaintiff Saha Thai; In K. Cho for defendant U.S. government)