Wheatland Tube Co. v. U.S., Slip Op. 97-100.

• Citation: 973 F.Supp. 149
• Decision Date: 18 July 1997
• Docket Number: Court No. 96-04-01078.,Slip Op. 97-100.
• Parties: WHEATLAND TUBE COMPANY, Plaintiff, v. The UNITED STATES, Defendant, and Dongbu Steel Co., Ltd., et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

973 F.Supp. 149

WHEATLAND TUBE COMPANY, Plaintiff, v. The UNITED STATES, Defendant, and Dongbu Steel Co., Ltd., et al., Defendant-Intervenors.

Slip Op. 97-100.

Court No. 96-04-01078.

United States Court of International Trade.

July 18, 1997.

Schagrin Associates (Roger B. Schagrin), Washington, DC, for plaintiff.

Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Velta A. Melnbrencis), Carlos A. Garcia, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Morrison & Foerster, LLP (Donald B. Cameron, Julie C. Mendoza, Craig A. Lewis and Panagiotis C. Bayz), Washington, DC, for defendant-intervenors.

OPINION

RESTANI, Judge:

This matter is before the court on a motion for judgment on the agency record by plaintiff Wheatland Tube Company ("Wheatland"). Wheatland seeks a remand to the United States Department of Commerce ("Commerce") with instructions to (1) perform an anticircumvention analysis or provide legally sufficient reasons for failing to perform such an analysis, (2) determine that the scope of the standard pipe orders as evaluated under 19 C.F.R. § 353.29(i)(1) is not dispositively resolved with respect to the pipe at issue, and (3) conduct a scope inquiry pursuant to 19 C.F.R. § 353.29(i)(2). Defendant United States ("the government") argues that the case should be remanded because, as a matter of law, Commerce is not precluded from issuing an anticircumvention order in this proceeding and Commerce did not provide sufficient reasons for not performing an anticircumvention investigation. At this juncture, the government does not intend to deny the request for an investigation with further reasons stated. Commerce intends to conduct the inquiry. Defendant-intervenors Dongbu Steel Co., Ltd., et al. (collectively "the Korean Producers") oppose the government's request for a remand because they claim under the facts of this case an anticircumvention investigation for the alleged "minor alteration" is precluded by statute. The government and defendant-intervenors maintain that the scope determination under 19 C.F.R. § 353.29(i)(1) is supported by substantial evidence.

BACKGROUND

On September 24, 1991, Wheatland and other domestic pipe producers filed antidumping duty petitions covering circular welded non-alloy steel pipe ("standard pipe") from Brazil, Korea, Mexico, Romania, Taiwan, and Venezuela. The scope of the antidumping investigations was similar in each petition. The petition covering products from Brazil, for example, listed the scope of the investigations as follows:

D. Description of the Merchandise (19 C.F.R. § 353.12(b)(3))

The merchandise that is the subject of this petition is welded non-alloy steel pipes, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized or painted), or end finish (plain end, bevelled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. A more detailed description is provided below.

1. Specifications, Characteristics and Uses

Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may carry liquids at elevated temperatures but may not be subject to the application of external heat. It may also be used for light load-bearing and mechanical applications, such as for fence tubing.

Standard pipes used in the United States are most commonly produced to the American Society for Testing and Materials (ASTM) standard A-53, although they may also be produced to the ASTM A-135 standard. Some imported standard pipe is also produced to the ASTM A-120 standard, a now defunct specification that was nearly identical to the A-53 standard. Products like fence tubing are often produced to proprietary specifications rather than to an industry standard....

Standard pipe made to DIN and ASTM specifications may be sold with a plain or threaded end, with or without a coupling. It may also be sold with a "black" or "galvanized" surface. Black standard pipe is frequently coated with an oil or lacquer finish to inhibit corrosion, and it may also be painted. Galvanized standard pipe is coated with a protective layer of zinc to prevent corrosion.

See Antidumping Duty Petition for Circular Welded Non-Alloy Steel Pipe from Brazil; Def.'s Ex. 1, at 4-5. On October 21, 1991, Commerce initiated antidumping duty investigations covering standard pipe from the countries named in the petition. See Circular Welded Non-Alloy Steel Pipe from Brazil, the Republic of Korea, Mexico, Romania. Taiwan, and Venezuela, 56 Fed.Reg. 52,528 (Dep't Comm.1991) (initiation of antidumping duty investigations). The notice of the initiation described the scope of the investigations as follows:

The merchandise subject to these investigations is circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, bevelled end, threaded or threaded and coupled). These pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing.

Imports of these products are currently classifiable under the following Harmonized Tariff Schedule (HTS) subheadings: 7306.30.10 and 7306.30.50. Although the HTS subheadings are provided for convenience and customs purposes, our written description of the scope of these investigations is dispositive.

Id. at 52,529.

During the investigations, respondents requested clarification of the scope of the investigation regarding "triple-certified" standard pipe. Memorandum from Case Analyst to File (Nov. 15, 1991); Def.'s Ex. 3, at 2. By letter dated November 19, 1991, petitioners responded to Commerce's request for their position as to whether pipes that are produced to both ASTM A-53 standard pipe specification and to API 5L or other line pipe specifications should be included within the scope of investigations. The letter stated that, "[d]ual or triple certified standard pipe should be covered by these investigations only if they enter the United States under one of the tariff numbers listed in section I.D.3 of the petitions." Letter from Luberda to Commerce (Nov. 19, 1991); Def.'s Ex. 4, at 1.

By letter dated March 5, 1992, petitioners answered respondent's requests for clarification of the scope of the investigations with respect to certain structural tubing, mechanical tubing, and standard pipe products. The letter stated,

The scope, as defined by the petition, the Department and the Commission, clearly excludes both imports of line pipe entering the United States in Harmonized Tariff System of the United States (HS) category 7306.10 and oil country tubular goods entering the United States in HS category 7306.20. The scope also clearly excludes boiler tubing entering in category 7306.30.5010 and cold-drawn or cold-rolled mechanical tubing that enters in category 7306.30.5015 or 7306.30.5020. Tube and pipe hollows for redrawing that enter the United States in HS category 7306.30.5035 are also specifically excluded.

However, the scope covers all other pipe that (1) has the physical characteristics described in the petition and in the Department's and the Commission's scope notices, and (2) enters the United States in HS items 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.8525, or 7306.30.5090. Such pipe is within the scope of the investigation regardless of whether it may be referred to as standard pipe, mechanical tubing or structural tubing in various applications.

Letter from Schagrin to Commerce (Mar. 5, 1992) (emphasis added); Def.'s Ex. 5, at 2-3.

In April 1992, Commerce made its preliminary determinations in the investigations. See, e.g., Circular Welded Non-Alloy Steel Pipe from Brazil, 57 Fed.Reg. 17,883 (Dep't Comm.1992) (prelim.det.), and Circular Welded Non-Alloy Steel Pipe from the Republic of Korea, 57 Fed.Reg. 17,885 (Dep't Comm.1992) (prelim.det.). In September 1992, Commerce issued its final determinations. See, e.g., Circular Welded Non-Alloy Steel Pipe from Brazil, 57 Fed.Reg. 42,940 (Dep't Comm.1992) (final det. of LTFV sales), and Circular Welded Non-Alloy Steel Pipe from the Republic of Korea, 57 Fed. Reg. 42,942 (Dep't Comm.1992) (final det. of LTFV sales). The final determinations described the scope of the investigations follows:

The merchandise subject to this investigation is circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4mm (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, galvanized, or painted), or end finish (plain end, bevelled end, threaded, or threaded and coupled). These pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioning units, automatic sprinkler systems, and other related uses. Standard...