Saha Thai Steel Pipe Pub. Co. v. United States, Slip Op. 19-165

• Decision Date: 18 December 2019
• Docket Number: Slip Op. 19-165,Consol. Court No. 18-00214
• Parties: SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED, Plaintiff, and Thai Premium Pipe Company, Ltd. and Pacific Pipe Public Company Limited, Consolidated Plaintiffs, v. UNITED STATES, Defendant, and Wheatland Tube Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

422 F.Supp.3d 1363

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED, Plaintiff,andThai Premium Pipe Company, Ltd. and Pacific Pipe Public Company Limited, Consolidated Plaintiffs,

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

Slip Op. 19-165

Consol. Court No. 18-00214

United States Court of International Trade.

December 18, 2019

Daniel L. Porter, Christopher Dunn, Tung Nguyen, and Kimberly Reynolds, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Plaintiff Saha Thai Steel Pipe Public Company Limited.

Robert G. Gosselink, Jonathan M. Freed, and Aqmar Rahman, Trade Pacific, PLLC, of Washington, DC, for Consolidated Plaintiff Thai Premium Pipe Company, Ltd.

Lizbeth R. Levinson, Ronald M. Wisla, and Brittney R. Powell, Fox Rothschild LLP, of Washington, DC, for Consolidated Plaintiff Pacific Pipe Public Company Limited.

Elizabeth A. Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim, Assistant Director. Of counsel on the brief was Brandon J. Custard, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Roger B. Schagrin, Elizabeth J. Drake, Christopher T. Cloutier, and Luke A. Meisner, Schagrin Associates, of Washington, DC, for Defendant-Intervenor Wheatland Tube Company.

OPINION

Choe-Groves, Judge:

Plaintiff Saha Thai Steel Pipe Public Company Limited ("Saha Thai") and Consolidated Plaintiffs Thai Premium Pipe Company, Ltd. ("Thai Premium") and Pacific Pipe Public Company Limited ("Pacific Pipe") (collectively, "Plaintiffs") challenge the U.S. Department of Commerce's ("Commerce") final results in the March 1, 2016 to February 28, 2017 administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. Before the court are Plaintiffs' motions for judgment on the agency record and Plaintiffs' unopposed motion for oral argument. The court decides the motions on the parties' written submissions without oral argument.¹ For the reasons discussed below, the court remands Commerce's Final Results for further consideration.

ISSUES PRESENTED

1. Whether Commerce's particular market situation adjustment is supported by substantial evidence and in accordance with the law;

2. Whether Commerce conducted a fair and impartial administrative review;

3. Whether Saha Thai exhausted its administrative remedies as to its duty drawback adjustment claim; and if so, whether Commerce's failure to apply a duty drawback adjustment to Saha Thai's cost of production for imputed Thai antidumping and safeguard duties on hot-rolled coil was supported by substantial evidence and otherwise in accordance with the law.

BACKGROUND

Over thirty years ago, Commerce entered the antidumping duty order on circular welded carbon steel pipes ("CWP") and tubes from Thailand. Antidumping Duty Order; Circular Welded Carbon Steel Pipes and Tubes from Thailand, 51 Fed. Reg. 8,341 (Dep't Commerce Mar. 11, 1986). Based on the petition from Defendant-Intervenor Wheatland Tube Company ("Defendant-Intervenor" or "Wheatland"), Commerce initiated an administrative review of the antidumping duty order for the period of March 1, 2016, through February 28, 2017. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 82 Fed. Reg. 21,513, 21,514 (Dep't Commerce May 9, 2017). Commerce selected three Thai producers of subject merchandise as mandatory respondents: Saha Thai, Pacific Pipe, and Thai Premium. Plaintiffs responded. Pls.' Initial Questionnaire Resps., PR 31, 48–50, 52–54, and 56–57 (Aug. 17, 2017).

After Saha Thai, Pacific Pipe, and Thai Premium submitted questionnaire responses, but before Commerce issued preliminary results, domestic producer Wheatland "allege[d] that a particular market situation existed in Thailand during the period of review ("POR") such that the costs of production of [CWP] are distorted and do not accurately reflect the cost of production in the ordinary course of trade." Wheatland Allegation 1, PR 69–71 (Feb. 5, 2018). Wheatland averred that: (1) the Royal Thai Government subsidized Thai producers of hot-rolled coil, enabling its sale at below-market prices to downstream producers of CWP, and (2) the prices for imports of hot-rolled coil into Thailand were distorted through dumping, subsidization, and global overcapacity. Id. at 4–5.

In accepting Wheatland's submission over Saha Thai's objection, Commerce determined that Wheatland had provided new factual information in support of its particular market situation allegation and thus gave interested parties seven days for interested parties to rebut, clarify, or correct the factual information contained in Wheatland's particular market situation allegation. Particular Market Situation Request for Comments Mem. 1–2, PR 81 (Mar. 21, 2018). Saha Thai and Pacific Pipe submitted comments. Saha Thai Rebuttal Factual Information and Comments on Wheatland's Particular Market Situation Allegation, PR 83 (Mar. 28, 2018); Pacific Pipe Comments on Particular Market Situation Allegations, PR 84–85 (Mar. 28, 2018).

Commerce rendered its preliminary decision on April 3, 2018, which was published on April 9, 2018. Circular Welded Carbon Steel Pipes and Tubes from Thailand, 83 Fed. Reg. 15,127 (Dep't Commerce Apr. 9, 2018) (preliminary results of antidumping duty administrative review; 2016–2017). Commerce calculated a preliminarily weighted-average dumping margin of 0.00 percent for Saha Thai, 5.34 percent for Thai Premium, and 10.66 percent for Pacific Pipe. Id. at 15,128. Commerce noted that it had yet to determine whether a particular market situation existed and would "consider [Wheatland's] allegations" further before issuing the final results. Decision Mem. for the Preliminary Results of Antidumping Duty Administrative Review; 2016–2017, PR 87 (Apr. 3, 2018).

Commerce issued Plaintiffs' supplemental questionnaires. Pacific Pipe First Suppl. Questionnaire, PR 93 (Apr. 25, 2018); Saha Thai First Suppl. Questionnaire, PR 94 (Apr. 25, 2018); Thai Premium First Suppl. Questionnaire, PR 95 (Apr. 25, 2018). The first supplemental questionnaires did not explicitly reference Wheatland's particular market situation allegation. See id. Plaintiffs responded. Pacific Pipe's First Suppl. Resp., PR 101 (May 8, 2018); Saha Thai First Suppl. Questionnaire Resp., PR 103–04 (May 14, 2018); Thai Premium First Suppl. Questionnaire Resp., CR 98 (May 14, 2018). Wheatland also responded and provided additional factual information supporting its particular market situation allegation. Wheatland's Comments on, and Clarifying Factual Info. Regarding Pacific Pipe and Saha Thai Suppl. Questionnaire Resps., PR 107–09 (May 17, 2018).

In the post-preliminary memorandum, Commerce found that sufficient evidence supported Wheatland's particular market situation allegation. Post-Preliminary Decision Mem. on Particular Market Situation Allegation 1, PR 114 (Aug. 31, 2018) ("PPDM"). Specifically, Commerce found that a particular market situation existed in Thailand during the period of review as to the cost of hot-rolled coil as a component of the cost of production. Id. at 4. Commerce assessed that a combination of the U.S. CVD rate on Thai producers of hot-rolled coil and the Thai AD and safeguard rates on hot-rolled coil imported into Thailand provided an appropriate basis for an adjustment to Thai CWP producers' input costs. Id. at 4, 6. Commerce then applied a particular market situation adjustment, which altered Plaintiffs' costs of production and resulted in a weighted-average antidumping margin calculation of 28.76 percent for Thai Premium, 24.50 percent for Saha Thai, and 10.66 percent for Pacific Pipe. Commerce's Post-Preliminary Decision Mem. on Wheatland's Allegation, PR 114 (Aug. 31, 2018); Analysis Mem. for the Post-Preliminary Results Concerning Saha Thai, PR 113 (Aug. 31, 2018); Pacific Pipe Prelim. Calc. Mem. and Particular Market Situation Adjustment Data, PR 116 (Aug. 31, 2018); Thai Premium Post-Prelim. Calc. Mem. and Particular Market Situation Adjustment Data, PR 117 (Aug. 31, 2018);

Commerce gave interested parties seven days to file case briefs. Briefing Schedule on All Issues Except Particular Market Situation, PR 115 (Aug. 31, 2018). Saha Thai requested a 10-day extension on September 4, 2018. Saha Thai Extension Request, PR 118 (Sept. 4, 2018). Commerce granted Saha Thai's request in part and gave all interested parties an extra three days (one business day) to submit case briefs. Mem. re Extension of Deadline to File Case and Rebuttal Briefs for All Issues, PR 121 (Sept. 6, 2018). The next day, Pacific Pipe requested a four-day extension of the briefing schedule. Pacific Pipe Briefing Schedule Extension Request, PR 123 (Sept. 7, 2018). Commerce granted the request in part and enlarged the briefing schedule by three days for all parties. Mem. re Pacific Pipe Extension Request, PR 124 (Sept. 10, 2018). Defendant-Intervenor requested a one-day extension to file a rebuttal case brief, which Commerce granted as to all interested parties. Mem. re Extension Request Filing Rebuttal Brs., PR 133, (Sept. 17, 2018). Commerce held a hearing on September 27, 2018. Hr'g Tr., PR 141 (Oct. 4, 2018).

Commerce published the Final Results on October 4, 2018. Circular Welded Carbon Steel Pipes and Tubes from Thailand, 83 Fed. Reg. 51,927 (Dep't Commerce Oct. 15, 2018) (final results of antidumping duty administrative review; 2016–2017) ("Final Results"); see also Decision Memorandum for the Final Results of Antidumping Duty Administrative Review; 2016–2017, PR 143 (Oct. 4, 2018) ("Final IDM"); Pls.' Final Calc. Mems., PR 144, 146, 148 (Oct. 4, 2018). In the Final Results, Commerce found that a particular market situation distorted the acquisition cost of hot-rolled...