AD Petitioner Rails Against Exporter's Arguments Over Line Dual-Stenciled Pipe Scope Ruling at CAFC
The Court of International Trade erred by relying on information not presented to the Commerce Department in a scope case, misinterpreting the International Trade Commission's findings in the original injury proceeding and mischaracterizing statements in other ITC cases, appellant Wheatland Tube Co. argued in a Feb. 3 reply brief at the U.S. Court of Appeals for the Federal Circuit. Exporter Saha Thai Steel Pipe's arguments supporting the CIT's analysis "are unpersuasive," since they ignore the plain language of the relevant antidumping duty order, the brief said (Saha Thai Steel Pipe Public Company v. United States, Fed. Cir. # 22-2181).
The case concerns the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. Commerce originally included dual-stenciled pipe in the order, later excluding it after litigation at the trade court.
The dispute dates back to 1985, when Commerce first considered the AD petition on steel pipe imports from Thailand. During the investigation, the petitioners, which included Wheatland Tube, 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 International Trade Commission made its injury determination. CIT, in its second opinion in the case, noted that the ITC made no injury determination for line pipe, dual-stenciled or otherwise, from Thailand.
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. However, the trade court remanded Commerce's scope ruling in October 2021 (see 2110070029). On remand, Commerce dropped its finding, under protest, that Saha Thai's dual-stenciled pipe was within the scope of the order. The trade court upheld the remand redetermination (see 2208260024).
Now at the Federal Circuit and responding to arguments from Saha Thai, Wheatland Tube argued that the appellee ignores the plain language of the order's scope, which covers circular welded pipe in a particular size range dubbed "standard pipe." Unlike many AD orders on circular welded pipe from other countries, the Thai order has no exclusion for dual-stenciled circular welded pipe that meets both the requirements of standard pipe and line pipe.
Saha Thai argues that, because CBP requires dual-stenciled pipe to enter the U.S. under the Harmonized Tariff Schedule classification for line pipe, the absence of HTS classifications for line pipe in the order's scope leads to an exclusion for pipe that qualifies as both standard and line pipe. "Yet, the express terms of the Order state that '[a]lthough the HTSUS subheadings are provided for convenience and purposes of U.S. Customs and Border Protection (CBP), the written description of the merchandise subject to the order is dispositive,'" Wheatland Tube replied.
The exporter further claimed that the ITC's injury proceeding was only based on standard pipe imports and not line pipe, allowing Commerce to impose duties on dual-stenciled pipe that qualifies as both standard and line pipe. "This argument ignores, however, that Saha Thai’s dual-stenciled pipe is certified for use in standard pipe applications, has all of the physical attributes of standard pipe, and is indistinguishable from standard pipe," Wheatland Tube said. "Courts have previously found that the ITC need not reference a specific product in its injury analysis to have that product covered by the scope of an order, so long as that product is covered by the physical description of the merchandise in the scope of the order."