Commerce Excludes Dual-Stenciled Pipe and Line Pipe From AD Order, but Raises Objections to CIT

The Commerce Department found in Jan. 4 remand results that dual-stenciled standard pipe and line pipe aren't to be included within the scope of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. Flipping its position following remand instructions from the Court of International Trade, Commerce nonetheless expressed a series of reservations over its decision to do so, dubbing the remand order "problematic."

In its October decision, CIT said that the International Trade Commission never made an injury determination on line pipe from Thailand, seeing as there were no Thai manufacturers of line pipe at the time the AD order was originally implemented in 1985 (see 2110070029). Judge Stephen Vaden found that allowing Commerce to assess such duties without an injury determination would "frustrate the purpose of the antidumping laws" and "common sense."

Commerce took particular exception to the fact that the court looked at information not brought before Commerce. In the decision, Vaden looked at the sunset reviews of the AD order that were conducted every five years from 1985. These reviews, while not part of the administrative record, showed that dual-stenciled pipe imported as line pipe was excluded from the order.

Commerce also said that the court's remand instructions misunderstood the ITC's finding in the AD investigation. The ITC held that line pipe made to certain American Society of Testing and Materials standards injures the domestic industry. And since dual-stenciled pipe is certified as meeting ASTM compliance for standard pipe, Commerce said that the injury determination applies to the dual-stenciled pipe.

Because the "issue of scope coverage absent ITC explicit analysis in the investigation wasn't an issue which was specifically raised by the parties before Commerce," the agency also argued that it never had a chance to discuss a key U.S. Court of Appeals for the Federal Circuit decision. This opinion held that there's no need for the ITC to specifically analyze a given product in the injury investigation in order for that good to be covered by the scope of an order if that product fits in the general description of the covered product.

When looking at the ITC's third and fourth sunset reviews of the orders, the trade court may also have failed to consider other relevant statements, Commerce argued. Looking at the seven countries with orders under review, the AD orders had exclusions for dual-stenciled pipe for Brazil, Mexico, South Korea and Taiwan, while the orders for Thailand, Turkey and India didn't. The agency originally said that the use of the exclusion in some of the orders didn't mean that dual-stenciled pipe was excluded in the orders for which there was no express exclusion. The trade court thought otherwise.

"There was additional language in those ITC reports that seems to contradict that description of the ITC’s understanding of the scopes of the various orders," the remand results said. "In the ITC Fourth Sunset Final Report, the ITC highlighted that there were differences in the scope of the orders based on specific product exclusions ... Likewise, with respect to the ITC Third Sunset Final Report included language acknowledging the difference in each orders’ scope... ."

Nevertheless, Commerce found that dual-stenciled pipe and line pipe don't fit within the AD order. "We have determined that dual-stenciled standard pipe and line pipe could not be covered by the scope of the Thailand Order, under the analysis, reasoning, and conclusions reached by the Court in the Remand Order, even if two inconsistent conclusions could be drawn from the record evidence," Commerce said.