Trade Court Judge Orders Commerce to Reconsider Scope Rulings on Ductile Iron Flanges
Two Commerce Department redeterminations excluding certain ductile iron flanges from the scope of a 2003 antidumping duty order were found unsatisfactory by the Court of International Trade, since they "are not in a form in which the court could sustain" them, according to two Nov. 18 orders by Judge Timothy Stanceu. Since Commerce said on remand that it will issue a revised scope ruling if the remand submissions are affirmed, the agency is looking for approval of a decision that is not a scope determination but "instead is preliminary to such a decision." As a result, the decision "could not be put into effect should it be sustained," and Commerce would "escape direct judicial review," the judge said.
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The cases concern ductile iron flanges from China imported by Star Pipe and MCC Holdings, doing business as Crane Resistoflex. Commerce initially took the position that the imported flanges were within the scope of the AD order covering non-malleable cast iron pipe fittings from China. Both companies filed requests for scope rulings, Star Pipe in 2017 and Crane in 2018, seeking to exclude their ductile iron flanges from the scope of the AD order.
Commerce originally ruled that Star Pipe's flanges were within the scope of the order, using the scope language and the (k)(1) materials to make the ruling. The agency relied on the petition, which excluded "ductile cast iron fittings with mechanical joint ends (MJ), or push on ends (PO), or flanged ends and produced to the American Water Works Association (AWWA) specifications," which the agency said did not apply to Star Pipe's AWWA C115 flanges. The court ruled that the original petition never proposed an exclusion for products made to AWWA standards (see 2108270034). On the third remand, Commerce finally excluded Star Pipe's flanges from the AD order in December 2021 (see 2112220028).
Likewise, Commerce ruled that five models of Crane's flanges fell within the scope of the order, relying on brochures from the petitioner, along with the petition itself, to find that the AD order covers the flanges in question. The court was unconvinced as neither the petition nor the scope language of the AD order touched on flanges, and remanded the matter to Commerce. On the second remand, Commerce excluded Crane's flanges from the AD order in December 2021 (see 2112210036).
On remand in both cases, Commerce said that it continues to find the flanges outside the scope of the order and that should the court affirm the remand results, it "will issue a revised scope ruling accordingly." Stanceu, though, found that he was unable to affirm this position since it is not an actual agency decision. Affirming the decision as is would strip the court's ability to review the actual agency decision made on remand and would deprive the parties the right to comment on that decision before the court sees it, the judge ruled.
The court required Commerce to issue additional remand redeterminations that, "like the original agency determination[s] ... [are] scope ruling[s] or determination[s] for the court’s review that would go into effect if, following judicial review, [they are] sustained."
(Star Pipe Products v. United States, Slip Op. 22-127, CIT #17-00236, dated 11/18/21, Judge Timothy Stanceu. Attorneys: Francis Sailer of Grunfeld Desiderio for plaintiff Star Pipe; Joshua Kurland for defendant U.S. government; Daniel Schneiderman of King & Spalding for defendant-intervenor ASC Engineered Solutions)
(MCC Holdings v. United States, Slip Op. 22-128, CIT #18-00248, dated 11/18/22, Judge Timothy Stanceu. Attorneys: Peter Koenig of Squire Patton for plaintiff MCC Holdings dba Crane Resistoflex; Joshua Kurland for defendant U.S. government; Daniel Schneiderman of King & Spalding for defendant-intervenor ASC Engineered Solutions)