CIT Erred in Excluding Dual-Stenciled Pipe From Steel Pipe AD Order, Petitioner Argues

The Court of International Trade erred by upholding the Commerce Department's exclusion of dual-stenciled pipe from the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand, defendant-appellant Wheatland Tube Co. told the U.S. Court of Appeals for the Federal Circuit in its opening brief. Commerce's original scope ruling including dual-stenciled pipe was backed by evidence since the pipe met the physical characteristics laid out in the scope of the order "and was made to an industrial specification for standard pipe" (Saha Thai Steel Pipe Public Co. v. United States, Fed. Cir. # 22-2181).

The dispute dates back to 1985, when Commerce first looked at 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. The court had other ideas, though, ruling in October 2021 that Commerce's position was not backed by evidence (see 2110070029). On remand, Commerce dropped its position, 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).

Wheatland took to the Federal Circuit to argue that this decision was arrived at erroneously. The trade court "found ambiguity" in the scope and consulted other sources other than the scope language, including CBP rules saying that dual-stenciled pipe should be entered under more specific tariff classifications for line pipe to mean that a pipe certified as meeting industry specifications for both standard and line pipe could no longer be considered standard pipe. "It is well-settled, however, that CBP’s classification of an imported good has no bearing on whether that good is subject to an antidumping duty order, which is determined by the written scope of the order," Wheatland argued in its opening brief.

The appellant also railed against the trade court's consideration of the petitioners' withdrawal of their allegations over line pipe. CIT said this withdrawal created a line pipe exclusion. Wheatland, though, claims that this ignores that Commerce, not the petitioners, defines the scope and that the withdrawal did not change the written scope laying out the physical characteristics of the pipe.

"The CIT was also wrong that the absence of references to tariff classifications pertaining to line pipe in the scope of the Order means that line pipe cannot be subject merchandise if it otherwise meets the terms of the scope," the brief said. "The Order is, in fact, explicit that the tariff classifications in it are for the 'convenience and purposes' of CBP and that the written description of the scope 'is dispositive.'"

In the opinion, the trade court "elevated characterizations of the scope of multiple orders" on pipe from various countries, "which had varying scopes, over the actual language of the Order on CWP from Thailand." The court turned to statements from two five-year ITC reviews, in particular, covering various pipe products that all exclude dual-stenciled pipe. "These statements by the ITC were either intended as generalizations or were simply inaccurate," Wheatland said. "While many orders on CWP do exclude dual-stenciled pipe, the written scope of the Order at issue here, Commerce’s original scope ruling, and earlier ITC publications make clear that the Order on CWP from Thailand is not one of them."