Maquilacero S.A. De C.V. v. United States

• Decision Date: 30 August 2017
• Docket Number: Court No. 15-00287 Slip Op. 17-117.
• Parties: MAQUILACERO S.A. DE C.V., Plaintiff, v. UNITED STATES, Defendant, and Wheatland Tube Company, Defendant–Intervenor.
• Court: U.S. Court of International Trade

256 F.Supp.3d 1294

MAQUILACERO S.A. DE C.V., Plaintiff,

v. UNITED STATES, Defendant,andWheatland Tube Company, Defendant–Intervenor.

Court No. 15-00287 Slip Op. 17-117.

United States Court of International Trade.

August 30, 2017

Diana Dimitriuc–Quaia, Arent Fox LLP of Washington, DC, argued for plaintiff. With her on the brief were John M. Gurley and Aman Kakar.

Elizabeth A. Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Lydia C. Pardini, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Jordan C. Kahn, Schagrin Associates of Washington, DC, argued for defendant-intervenor. With him on the brief was Roger B. Schagrin.

OPINION and ORDER

Eaton, Judge:

Before the court is Maquilacero S.A. de C.V.'s ("Maquilacero" or "plaintiff") motion for judgment on the agency record challenging the final scope ruling by the United States Department of Commerce ("Commerce" or the "Department") in Final Scope Ruling on Certain Black, Circular Tubing Produced to ASTM A–513 Specifications by Maquilacero S.A. de C.V. , Case No. A–201–805, P.R. 10, ECF No. 40 (Dep't Commerce July 27, 2015) ("Final Scope Ruling"), which found that certain black mechanical tubing made by Maquilacero was within the scope of the antidumping duty order on Certain Circular Welded Non–Alloy Steel Pipe from Brazil, the Republic of Korea (Korea), Mexico, and Venezuela , 57 Fed. Reg. 49,453 (Dep't Commerce Nov. 2, 1992) (the "Order").

Maquilacero argues that Commerce's inclusion of its tubing within the scope of the Order is contrary to law and unsupported by substantial evidence because: "(1) Commerce failed to give effect to the unqualified exclusion for mechanical tubing in the scope language; (2) Commerce modified, rather than interpreted, the scope language to require ‘stenciling’ as a condition for excluding certain mechanical tubing from the scope; and (3) Commerce failed to address Maquilacero's arguments" regarding the factors found in 19 C.F.R. § 351.225(k)(2) (2015) (the "(k)(2) factors")¹ which establish that Maquilacero's mechanical tubing meets the description of mechanical tubing excluded from the Order. Pl.'s Br. Supp. Mot. J. Agency R., ECF No. 30, ("Pl.'s Br.") 2.

Defendant, the United States (the "government" or "defendant"), on behalf of Commerce, argues that Commerce's ruling is supported by substantial evidence and in accordance with law. Specifically, defendant asserts that Commerce reasonably determined that (1) the term "mechanical tubing" was subject to interpretation; (2) the plain language of the Order does not exclude plaintiff's products; (3) an analysis of the factors in 19 C.F.R. § 351.225(k)(1) (the "(k)(1) factors") requires that tubing must be stenciled in order to qualify for the scope exclusion; and (4) Commerce was not obligated to analyze the (k)(2) factors. Def.'s Resp. Pl.'s Mot. J. Agency R., ECF No. 38, ("Def.'s Br.") 9, 11.

Defendant–Intervenor, Wheatland Tube Company ("defendant-intervenor" or "Wheatland"), adds that Commerce properly interpreted the scope of the Order to exclude only tubing produced to the ASTM A–513 specifications "meeting certain physical requirements and stenciled" because (1) Commerce interpreted the Order's scope in accordance with law; (2) the stenciling requirement "enhances ... enforceability and avoids duty evasion"; and (3) Commerce was not required to conduct a (k)(2) factors analysis. Def.–Int. Resp. Opp'n Pl.'s Mot. J. Agency R., ECF No. 39, ("Def.–Int.'s Br.") 13.

This court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and 19 U.S.C. § 1516a(a)(2)(B)(vi) (2012).

Because the court finds that Commerce's ruling that Maquilacero's products must be stenciled to be excluded from the Order is an unlawful expansion of the scope's language, the court remands the Final Scope Ruling with instructions.

BACKGROUND

On September 24, 1991, members of the U.S. steel pipe industry, including defendant-intervenor, petitioned for the imposition of antidumping duties on circular welded non-alloy steel pipe from Brazil, the Republic of Korea, Mexico, Romania, Taiwan, and Venezuela. See Initiation of Antidumping Duty Investigations: Circular Welded Non–Alloy Steel Pipe From Brazil, the Republic of Korea, Mexico, Romania, Taiwan, and Venezuela , 56 Fed. Reg. 52,528 (Dep't Commerce Oct. 21, 1991) ("Initiation Notice"). On September 17, 1992, Commerce's investigation resulted in a determination that circular welded non-alloy steel pipe from Mexico was being sold at less than fair value (i.e. , dumped). See Circular Welded Non–Alloy Steel Pipe From Mexico , 57 Fed. Reg. 42,953 (Dep't Commerce Sept. 17, 1992) ("Final Determination"). The Final Determination's scope language described, in pertinent part, the subject merchandise as being "generally known as standard pipe, though [it] may also be called structural or mechanical tubing in certain applications." Final Determination, 57 Fed. Reg. at 42,953. In the following paragraph, however, Commerce specifically excluded "cold-drawn or cold-rolled mechanical tubing" from the scope of the determination. Final Determination, 57 Fed. Reg. at 42,953. Thus, even before the United States International Trade Commission's ("ITC") negative injury determination, Commerce determined that some mechanical tubing would not be included in the Order. Final Determination, 57 Fed. Reg. at 42,953.

In October 1992, the ITC found that the United States' circular welded non-alloy steel pipe industry was materially injured by imports of standard and structural pipe from, among other countries, Mexico. See Certain Circular, Welded, Non–Alloy Steel Pipes and Tubes from Brazil, the Republic of Korea, Mexico, Romania, Taiwan, and Venezuela , Inv. Nos. 731–TA–532–537, USITC Pub. 2564 (Oct. 1992) ("ITC Final Determination"). In its determination, the ITC also found that "subject mechanical tubing" (i.e. , mechanical tubing that is not cold-drawn or cold-rolled) constituted a separate like product from "standard and structural pipes and tubes" based on different end uses and lack of interchangeability. ITC Final Determination at 16–17. The ITC also noted, however, that "the majority of domestically-produced mechanical tubing is either cold-drawn or cold-rolled" (the product previously excluded by Commerce) and that "[n]o party has argued that [cold-drawn or cold-rolled] mechanical tubing, which [is] not included in the scope of the investigation, should be included in a like product consisting of mechanical tubing." ITC Final Determination at 15–16 n.49. In addition, because the ITC found that there had been "no significant imports of subject mechanical tubing from ... Mexico," there was no material injury to the domestic industry. ITC Final Determination at 38. Moreover, the ITC found that Mexico had "no industries producing the subject mechanical tubing," and there was

no likelihood that the market penetration of subject mechanical tubing from Mexico ... will increase to an injurious level; no probability that imports of the Mexican ... merchandise will enter the United States at prices that will have a depressing or suppressing effect on domestic prices of the merchandise; and no actual and potential negative effects on the existing development and production efforts to develop a derivative or more advanced version of the like product.

ITC Final Determination at 42. Accordingly, the ITC found "no threat of material injury by reason of [the dumping of] imports of subject mechanical tubing from Mexico ...." ITC Final Determination at 42. Thus, the ITC found that the mechanical tubing that remained under investigation following Commerce's exclusion of "cold-drawn or cold-rolled" mechanical tubing (1) represented a domestic industry separate from standard and structural pipes and tubes, and (2) had not resulted in a rapid increase in U.S. market penetration due to its importation. ITC Final Determination at 38, 42. Thus, the ITC's findings did not consider that subject mechanical tubing should be included in the scope of the Order. See ITC Final Determination at 38, 42.

Following the ITC Final Determination, on November 2, 1992, Commerce issued an antidumping duty order for circular welded non-alloy steel pipe from, among other countries, Mexico. See Order, 57 Fed. Reg. at 49,453. Because the ITC had found that mechanical tubing from Mexico was not causing or threatening injury, Commerce's Order contained the following language:

In its final determination, the ITC determined that three like products exist for the merchandise covered by the Commerce investigations: (a) Mechanical tubing; (b) finished conduit, and (c) standard and structural pipe. The ITC's affirmative injury determination covered only standard and structural pipe. Accordingly, the scope of the antidumping duty orders ... have been modified to reflect the ITC's findings.

Order, 57 Fed. Reg. at 49,453 –54. In particular, the scope's first paragraph, which describes the subject merchandise, removed the earlier reference to "mechanical tubing" and instead described the merchandise as being "generally known as standard pipes and tubes":

The products covered by these orders are circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (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 pipes and tubes and are intended for the low pressure conveyance of water, steam, natural gas, and other liquids and gasses in plumbing and heating systems, air

...