Pipe Exporter Says CAFC Broadened Scope Beyond ITC Injury Decision, Vies for Rehearing

Saha Thai argued that the majority "ignored 38 years of settled expectations about the specific limits" of the AD order and also "broke new ground in contravention of long-standing Federal Circuit precedent" by letting Commerce expand the order's scope "beyond those products for which the International Trade Commission had found injury." The underlying injury proceeding, conducted in 1986, "was clear on its face" in that the petitioners withdrew their case against all line pipe. The commission itself read the order as "covering only standard pipe, and not including any dual-stenciled pipe qualified as line pipe," the brief said.

Instead of limiting the scope to those goods actually subject to the injury determination, "the majority simply deferred to Commerce’s overreaching interpretation," which is "contradicted" by the ITC decision and "the overwhelming interpretive evidence as determined by the Court of International Trade and the dissent," Saha Thai said.

The AD order's scope language included standard pipe but excluded line pipe, and Saha Thai's dual-stenciled pipes fit the industry specifications for both line and standard pipe. Two of the three judges deciding the case -- Judges Alan Lourie and Jimmie Reyna -- found that "meeting an additional specification" for line pipe "does not strip away the qualification of these pipes as standard pipes."

Judge Raymond Chen dissented, keying in on the phrase in the order's scope, saying it covers pipes "known in the industry as standard pipes and tubes." Chen said it's "far from clear" whether "people in the relevant industry refer to dual-stenciled pipe as standard pipe." The original petition included tariff lines only for standard pipe, reflecting the petitioners' will to exclude dual-stenciled pipe since none was exported from Thailand at the time.

In its brief, Saha Thai said the appellate court illegally let Commerce change the scope of the order by finding it to be broader than the scope of the injury determination. The exporter said Eckstrom Indus. v. U.S. "is particularly on point," since in that instance, Commerce tried to broaden the scope of the order based on language on the size of the product. Saha Thai claimed that this court "rejected that argument by reading the language of the order as a whole, reading the tariff codes as part of the language of the order, and noting the limited scope of the ITC injury determination."

That's "precisely the situation here," since any dual-stenciled pipe would have fit under the tariff codes as line pipe and be excluded from the ITC investigation, the brief said.

Saha Thai also claimed that the majority overlooked the fact that the injury decision for Thailand covered only standard pipe and didn't include dual-stenciled pip that qualified as line pipe. The "summary description" of the ITC decision "drew sharp distinctions between the affirmative findings on both standard pipe and line pipe for Turkey, and the affirmative findings for only standard pipe for Thailand." Given this narrowed scope, the ITC proceeding "then expressly investigated and included only standard pipe as reflected in certain tariff codes that covered standard pipe." The decision to withdraw the petition on line pipe for Thailand also "confirmed this limitation," the brief said.

The petition also claimed that the majority made multiple errors in interpreting the scope language by giving "too much interpretive weight -- indeed, near dispositive weight -- to the absence of an express exclusion for dual-stenciled pipe." The court's "repeated stress on the lack of an explicit exclusion contradicts this Court's clear statement of law that Commerce 'cannot find authority in an order based on the theory that the order does not deny authority.'" The absence of an exclusion can't be the basis to find a product covered the scope, it said.