CIT Upholds Exclusion of Dual-Stenciled Pipe From Antidumping Duty Order
The Commerce Department properly excluded dual-stenciled pipe from the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, the Court of International Trade ruled in an Aug. 25 opinion. Judge Stephen Vaden ruled that no line pipe was made in Thailand when the original AD investigation was conducted almost 40 years ago and that the International Trade Commission made no harm finding for line or dual-stenciled pipe from Thailand.
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The judge further ruled that AD petitioner Wheatland Tube and Commerce forfeited their objection to three documents' inclusion on the record since the objection was not raised during the first consideration of the case. Even if the objection was not forfeited, Vaden ruled that the court must take judicial note of the documents and that the decision cannot be properly reviewed without them.
In 1985, the facts of the case first began to form after Commerce first looked at the AD petition over steel pipe imports from Thailand. In the investigation, the petitioners, which included Wheatland Tube, later withdrew the petition as it applies to line pipe, acknowledging that no line pipe was made in Thailand at the time. The final determination in the case was issued in 1986, after which the ITC made its injury determination. The ITC made no injury determination for line pipe, dual-stenciled or otherwise, from Thailand, Vaden noted.
Wheatland Tube and other petitioners later requested a ruling on whether exporter Saha Thai Steel Pipe Public Co.'s dual-stenciled pipe was a "minor alteration" of the original product. Commerce began a self-initiated scope inquiry to resolve the question, finding that dual-stenciled pipe is within the scope of the order. The court had other ideas, though, ruling in October 2021 that this position was not backed by evidence (see 2110070029). On remand, Commerce dropped its position, under respectful protest, that Saha Thai's dual-stenciled pipe was within the scope of the order. Vaden's Aug. 25 opinion upholds this position.
This did not mark the end of Commerce's and Wheatland Tube's opposition. The petitioner objected to three documents the court and Commerce used in the remand proceeding. The documents were the first two sunset reviews of the order and a presidential proclamation meant to facilitate a competition adjustment from imports of circular welded carbon quality line pipe. Vaden ruled that the objection is forfeited given that it was not raised during the first consideration of the case.
"Saha Thai referenced the documents in question in both its briefing before the agency and the Court, yet Wheatland Tube and Commerce failed to object during any stage of the prior proceedings," the judge said. "They have therefore forfeited their ability to contest Saha Thai’s citation to those documents. ... Failing to raise an argument in a previous proceeding thus forfeits the argument after the matter has been remanded and is back on appeal. This is precisely what occurred here."
Even if this was not the case, the two reviews and presidential proclamation were fairly made part of the record, Vaden ruled. For starters, the judge said that the court "must take judicial note" of all the documents, since they are government documents "whose accuracy cannot reasonably be questioned." Further, the case cannot be properly reviewed without including a discussion of the the two sunset reviews. "Those two documents are so integral to Commerce’s analysis that not only are they 'sufficiently intertwined with the relevant inquiry,' but also '[a]ll of the information in [them] was in front of Commerce during the investigation, regardless of whether or not Commerce chose to ignore it,'" the judge ruled.
Commerce and Wheatland Tube also sought to dispute the court's characterization of the ITC's final harm determination in the original investigation and in the third and fourth sunset reviews. Vaden said that this argument says the ITC does not understand the scope of the orders it reviews since the commission has "spoken with one consistent voice, repeatedly emphasizing that dual-stenciled line pipe is not within the scope of the Thailand Order." The judge ruled that the "primary problem" in the action is actually that "Commerce wishes to blind itself to the ITC's repeated pronouncements."
Vaden declared that: "Whether one examines all four sunset reviews or only the Third and Fourth Reviews, the ITC spoke with one consistent voice: Dual-stenciled pipe is line pipe, not standard pipe, and is not covered by the scope of any relevant order it reviewed over nearly four decades. Commerce and Wheatland Tube wish to say that the ITC does not speak with specificity and does not know what it is talking about. The record reveals otherwise because the ITC’s position never wavered from 1985 to the present."
(Saha Thai Steel Pipe Public Company v. United States, Slip Op. 22-99, CIT #20-00133, dated 08/25/21, Judge Stephen Vaden. Attorneys: Daniel Porter of Curtis Mallet-Prevost for plaintiff Saha Thai; Claudia Burke for defendant U.S. government; Luke Meisner of Schagrin Associates for defendant-intervenor Wheatland Tube)