King Supply Co. LLC v. United States

• Decision Date: 06 January 2011
• Docket Number: Court No. 09-00477
• Parties: KING SUPPLY COMPANY LLC, d/b/a KING ARCHITECTURAL METALS,Plaintiff, v. UNITED STATES, Defendant, and WELDBEND CORP., TUBE FORGINGS OF AMERICA INC., and HACKNEY LADISH, INC., Defendant-Intervenors.
• Court: U.S. Court of International Trade

KING SUPPLY COMPANY LLC, d/b/a KING ARCHITECTURAL METALS, Plaintiff,

v. UNITED STATES, Defendant, andWELDBEND CORP., TUBE FORGINGS OF AMERICA INC., and HACKNEYLADISH, INC., Defendant-Intervenors.

Court No. 09-00477

UNITED STATES COURT OF INTERNATIONAL TRADE

Decided: January 6, 2011

Before: R. Kenton Musgrave, Senior Judge

OPINION

[Redetermination of pipe fittings from China used in structural applications as outside scope of antidumping duty order remanded to International Trade Administration, U.S. Department of Commerce.]

Barnes, Richardson & Colburn (Thomas V. Vakerics, Stephen W. Brophy, Cortney O'Toole Morgan, Jeffrey S. Neeley, Matthew T. McGrath, and Michael S. Holton), for the plaintiff.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Michael D. Panzera); Office of the Chief Counsel for Import Administration, United States Department of Commerce (Natasha Robinson Coates), of counsel, for the defendant.

Mayor Brown LLP (Simeon M. Kriesberg and Jeffrey C. Lowe), for the defendant-intervenor Weldbend Corporation.

Neville Peterson LLP (Lawrence J. Bogard and Casey Kernan Richter), for the defendant-intervenor Tube Forgings of America, Inc.

SaulEwing, LLP (John Burt Totaro, Jr.) for the defendant-intervenor Hackney Ladish, Inc.

Musgrave, Senior Judge: Presuming familiarity with Slip Op. 10-111 (Sep. 30, 2010) ("Opinion"), remanding to the International Trade Administration, U.S. Department of Commerce ("Commerce") the administrative ruling on the scope inquiry of plaintiff King Supply Co. LLC ("King") with respect to a certain antidumping duty order on carbon steel butt-weld pipe fittings ("BWPF"), ¹ this opinion considers Commerce's results of remand ("Remand Determination") that now, under protest, exclude from the ambit of the Order BWPF imported and used by King only in architectural or structural applications. Weldbend Corporation and the government urge sustaining the Remand Determination, while Tube Forgings of America, Inc. ("TFA") and King argue for further remand.

I

King requests further remand with instruction to Commerce to identify the specific language in the Remand Determination that constitutes the scope ruling. See Comments of Plaintiff on Final Results of Redetermination by the Department of Commerce, dated December 1, 2010 ("King's Comments"), at 2-3. There is no need, because the Remand Determination is clear: "[i]n accordance with the Court's instructions, this redetermination pursuant to remand construes thescope of the order as excluding pipe fittings used only in structural applications, such as King's fittings used for structural applications, from the Order."² Remand Determination at 1.

In addition, King argues the Remand Determination is internally inconsistent. Specifically, King requests deletion of "only" therefrom because it "may mistakenly be read to the effect that 'dual use' pipe fittings are not excluded from the [Order] as dual use pipe fittings are not limited in use to structural applications." King's Comments at 3. King also requests deletion of "used by King" to ensure that pipe fittings imported by King ostensibly for resale and eventual use in structural applications are excluded from the Order. Id. at 3-4.

These requests appear to emanate from examination of page 4 of the Remand Determination, which explains Commerce's finding that pipe fittings "imported by King and used by King in structural applications" are excluded from the antidumping duty order, as compared with page 5 of the redetermination, which generally explains that pipe fittings used in structural applications are excluded from the order without regard to the identity of the importer (or user). Cf. Remand Determination at 4-5 with King's Comments at 1-4. The government's detailed response, with which the court concurs, needs little elaboration:

Consistent with the Court's order, Commerce excluded pipe fittings used in structural applications from the order without regard to the identity of the importer. This fact is underscored by the language found in the scope ruling on page 5 of the remand redetermination. In its scope ruling, Commerce explains that "[i]n accordance with the Court's instructions, this redetermination... construes the scope of the order as excluding pipe fittings used only in structural applications, such as King's fittings used for structural applications." Remand Determination at 5 (emphasis added). The phrase "pipe fittings used only in structural applications" provides that pipe fittings used in structural applications regardless of the identity

of the importer are excluded from the order. The words "such as" identify pipe fittings used by King in structural applications as merely an example of such pipe fittings excluded from the antidumping duty order.

The language on page 4 of the remand redetermination, which states that "we find that fittings imported by King and used by King in structural applications... are not covered by the scope of the Order," is not inconsistent with the scope ruling on page 5. This language must be read in the proper context. In the paragraph that precedes the statement in question, Commerce identifies factual evidence presented by King during the scope proceeding that indicated that its pipe fittings were used exclusively in structural applications and not piping systems. Remand Determination at 4. In restating this information about King's business practice, Commerce responds in the following paragraph [with] its finding that pipe fittings imported and used by King now are excluded from the order. This finding on page 4, when read in its proper context, represents Commerce's conclusion with respect to coverage based upon specific factual statements made in the preceding paragraph about King's business practice. There is no basis for interpreting Commerce's conclusion as to certain facts somehow constitutes the scope ruling itself. Because there is no internal inconsistency in the remand redetermination, King's request that this matter be remanded to Commerce again should be rejected.

For similar reasons, King's argument that Commerce should delete the words "used by King" from the remand redetermination is unsupported. See King's Comments at 3-4; see also Remand Determination at 4 ("[W]e find that fittings imported by King and used by King in structural applications, as described above, are not covered by the scope of the Order") (emphasis added). King argues that the phrase in question, which is found on page 4 of the remand redetermination, indicates that "in order to be excluded from the order, the imported pipe fittings must be used by King in structural applications." King's Comments at 4. King then explains that "pipe fittings imported by King for resale and eventual use in structural applications are covered by the order, an interpretation in direct contradiction of the Court's order." Id.

As explained above, the phrase in question is part of a sentence that does not constitute the scope ruling. To the contrary, the sentence serves as the logical conclusion as to specific factual statements made in the preceding paragraph on page 4. There is no basis, therefore, to conclude that "pipe fittings imported by King for resale and eventual use in structural applications" somehow are covered by the antidumping duty order. See King's Comments at 4. Therefore, this Court should reject King's argument that Commerce should remove the phrase "used by King" from the remand redetermination.

Fourth, there is no valid basis for King's request that Commerce delete the word "only," which precedes "structural applications" in certain instances, from the remand redetermination. See, e.g., Remand Redetermination at 5 ("[T]his redetermination pursuant to remand construes the scope of the order as excluding pipe fittings used only in structural applications... from the [Order].") (emphasis added). According to King, the use of the word "only" "in this context... may mistakenly be read to the effect that 'dual use' pipe fittings are not excluded from the order as dual use pipe fittings are not limited in use to only structural applications." King's Comments at 3. King's concerns are unfounded.

This Court held that Commerce was required to exclude carbon steel butt-weld pipe fittings used for structural applications from the scope of the antidumping order. Commerce followed the Court's instruction by issuing a scope ruling that excluded such pipe fittings. See Remand Redetermination at 5. Commerce included the word "only" in its remand redetermination to emphasize that pipe fittings used in structural applications are excluded from the antidumping order (i.e., only pipe fittings used in structural applications are excluded from the [Order]), whereas those used in piping systems remain covered by the [Order]. The use of the word "only" in the remand redetermination is consistent with this distinction, and in no way renders Commerce's remand redetermination inconsistent with the Court's order.

King's insistence that the use of the word "only" may be misinterpreted is wholly speculative and unsupported by any evidence. In any event, any such a misinterpretation would be inconsistent with the Court's holding that the end-use of the pipe fitting determines whether it is covered by the antidumping duty order, rather than the potential manner in which the pipe fitting may be used. See Court Order accompanying... Slip Op. 10-111... at 2 (ordering Commerce to issue a scope determination "excluding carbon steel butt-weld pipe fittings used for structural applications from the scope of the antidumping order on carbon steel butt-weld pipe fittings from China.") (emphasis added). For these reasons, King's request that the Court order Commerce to remove the word "only" from the remand

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