Saha Thai Steel Pipe Pub. Co. v. United States

• Decision Date: 25 August 2022
• Docket Number: Slip Op. No. 22-99,Court No. 1:20-cv-00133
• Citation: 592 F.Supp.3d 1299
• Parties: SAHA THAI STEEL PIPE PUBLIC COMPANY, LTD., Plaintiff, v. UNITED STATES, Defendant, and Wheatland Tube Company, Defendant-Intervenor.
• Court: U.S. Court of International Trade

592 F.Supp.3d 1299

SAHA THAI STEEL PIPE PUBLIC COMPANY, LTD., Plaintiff,

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

Slip Op. No. 22-99

Court No. 1:20-cv-00133

United States Court of International Trade.

August 25, 2022

Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Plaintiff. With him on the brief was James C. Beaty.

Claudia Burke and In K. Cho, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With them on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, Commercial Litigation Branch, Franklin E. White, Jr., Assistant Director, Commercial Litigation Branch, and JonZachary Forbes, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Luke A. Meisner, Schagrin Associates, of Washington, DC, for Defendant-Intervenor. With him on the brief were Roger B. Schagrin and Kelsey M. Rule.

OPINION

Vaden, Judge:

Before the Court is the U.S. Department of Commerce's (Commerce) remand redetermination in the scope inquiry examining the 1986 antidumping duty order (Thailand Order). The Thailand Order concerns circular welded carbon steel pipes and tubes (CWP) imported from Thailand (Case No. A-549-502), filed pursuant to the Court's remand order in Saha Thai Steel Pipe Pub. Co., Ltd. v. United States , 547 F. Supp. 3d 1278 (CIT 2021) ( Saha Thai I ). See Final Results of Redetermination Pursuant to Ct. Remand, Oct. 16, 2021, ECF No. 58 (Remand Results). For the following reasons, the Court sustains Commerce's remand redetermination.

BACKGROUND

The Court presumes familiarity with the facts of this case as set out in its previous opinion ordering a remand of this scope inquiry to Commerce and now recounts those facts relevant to the review of the Remand Results.

The order underlying the scope inquiry in this case traces its roots to 1985, when the domestic industry filed a petition requesting that Commerce examine the injury caused by steel pipe imports from Thailand. J.A. at 1,090, ECF No. 42. In the initial investigation leading to those final determinations, petitioners requested the imposition of antidumping duties on standard and line pipes but later submitted a letter withdrawing their petition "insofar as [it] concern[ed] line pipe, TSUS numbers 610.3208 and 3209." Saha Thai I , 547 F. Supp. 3d at 1282 ; Letter Dated March 14, 1985, from Petitioner Regarding Partial Withdrawal of Petition , J.A. at 1,781, ECF No. 42. The original petitioners, which included Wheatland Tube, acknowledged that no line pipe — mono or dual-stenciled — was being produced in Thailand at the time. J.A. at 1,781; see also Tr. of Oral Argument (First Tr.) 6:2–7:3 (July 15, 2021), ECF No. 53. Thus, the petitioners had no information to submit in response to Commerce's questions regarding Thai line pipe's potential to harm domestic manufacturing. See AD & CVD Investigations of Pipes and Tubes from Thailand & Venezuela, J.A. at 1,753 (requesting that petitioners provide "[d]ocumentation which demonstrates that line pipe is manufactured in Thailand" and "[d]ocumentation which supports the allegation that line pipe from Thailand is being sold at less than fair value.").

In January 1986, Commerce issued a final determination that standard pipe from Thailand was being, or was likely to be, sold in the United States at less than fair value. Antidumping: Circular Welded Carbon Steel Pipes and Tubes from Thailand; Final Determination of Sales at Less Than Fair Value , 51 Fed. Reg. 3,384 (Jan. 27, 1986), J.A. at 1,216. The International Trade Commission (ITC) released its final material injury determination and report the next month. See Certain Welded Carbon Steel Pipes and Tubes from Turkey and Thailand , Inv. Nos. 701-TA-253 and 731-TA-252, USITC Pub. 1810 (Feb. 1986) (ITC Final Determination), J.A. at 1,221. In its report, the ITC distinguished the injury caused by standard pipe from Thailand from the injury caused by standard and line pipe from Turkey, making no material injury determination for line pipe, dual-stenciled or otherwise, from Thailand. Id.

The contents and scope described by these final determinations are discussed at length in Saha Thai I . In this subsequent adjudication, it suffices to say that dual-stenciled line pipe was never explicitly included in the scope language of either the antidumping determination or material injury determination. Saha Thai I , 547 F. Supp. 3d at 1282–84. After Defendant-Intervenor Wheatland Tube and other petitioners requested a determination of whether Saha Thai's sales of dual-stenciled pipe constituted a "minor alteration" of the original product, Commerce instead self-initiated a scope inquiry. Antidumping Duty Order on Circular Welded Carbon Steel Pipes and Tubes from Thailand: Self Initiation of Scope Inquiry on Line Pipe and Dual-Stenciled Standard Line Pipe , J.A. at 1,800; see 19 U.S.C. § 1677j(c) (providing that merchandise "altered in form or appearance in minor respects" should still be considered within the scope of the relevant antidumping order). It ultimately issued a Final Scope Ruling finding that dual-stenciled line pipe is within the scope of the Thailand Order on June 30, 2020. See Final Scope Ruling, J.A. at 2,041. On July 17, 2020, Saha Thai sued Commerce, challenging the scope decision. ECF No. 6.

The Court issued a decision in Saha Thai I on October 6, 2021. Saha Thai I , 547 F. Supp. 3d 1278. In that opinion, the Court found that "Commerce's determination that dual-stenciled pipe is covered by the Thailand Order [wa]s not supported by substantial evidence ... [and] that Commerce's Final Scope Ruling constitute[d] an unlawful expansion of the scope of the underlying order." Id. The Court's decision was based on the undisputed facts that (1) Wheatland Tube explicitly withdrew line pipe from Commerce's consideration because Thailand did not manufacture line or dual-stenciled pipe in 1985–86 when the Thailand Order was finalized and (2) the ITC made no material injury determination for line pipe from Thailand. Id. at 1299. As a result, the Court remanded the Final Scope Ruling back to Commerce, instructing Commerce to render a redetermination consistent with the Court's opinion. Id. at 1281.

Commerce has now undertaken a redetermination following the instructions provided by the Court and brought forward a renewed statement of its position. To assist the parties, the Court will briefly summarize both the process undertaken by Commerce and the arguments it has articulated. Commerce filed its Remand Results on January 4, 2022. ECF No. 58. Commerce reconsidered record sources "in light of the reasoning, analysis, and conclusions of the Court," and determined, under respectful protest,¹ that "dual-stenciled standard pipe and line pipe are not covered by the scope of the Thailand Order. " Remand Results at 1–2, ECF No. 58 (emphasis added). In the original Remand Results, Commerce raised four concerns with the decision it felt it must return based on the Court's opinion. Id. at 13–20. First, Commerce takes issue with the Court's reliance on what Commerce asserts are "[e]xtra-[r]ecord [s]ources." Id. at 14–15. The disputed sources are the ITC First Sunset Final Report (First Sunset Review ); the ITC Second Sunset Final Report (Second Sunset Review ); and an executive order, Presidential Proclamation 7274 , discussed in those reports. Id. at 14–15. Second, Commerce claims that the Court misunderstood Commerce's interpretation of 19 C.F.R. § 351.225(k)(1) and the extent to which Commerce "may (and frequently does)" find the text and materials of other petitions or orders informative in its scope analysis, as long as those materials are placed on the record. Id. at 16. Third, Commerce believes that the Court is mistaken about the ITC's findings. Id. at 16. It adduces this conclusion by noting, once again, that the Commission did make an injury determination for standard pipe, that dual-stenciled pipe is certified as standard pipe, and that Commerce understands Federal Circuit precedent to impose no requirement that the ITC analyze a particular product for that product to be covered by the scope of the order. Id. at 16–18. Fourth and finally, Commerce argues that the Court failed to give proper weight to some of the limiting context surrounding statements in the ITC Third Sunset Final Report (Third Sunset Review ) and ITC Fourth Sunset Final Report (Fourth Sunset Review ). Id. at 18–20. Commerce later amended the Remand Results to exclude the "extraneous legal argument[s]" detailing those four concerns but left the scope decision in the Remand Results unchanged. Amended Remand Results, ECF No. 69.

The parties disagree stridently regarding Commerce's Remand Results. On February 3, 2022, Saha Thai filed comments encouraging the Court to sustain the new outcome. Pl.’s Comments in Support of Remand Redetermination Results, ECF No. 61. On February 18, 2022, the Government invited the Court to sustain the Remand Results because the Results complied with the Court's remand order, fulfilling Commerce's legal obligations in every respect. Def.’s Resp. to Comments on Remand Redetermination, ECF No. 63. Wheatland Tube, however, objected to the logic and outcome of the Remand Results. See Def.-Int.’s Comments on Remand Redetermination (Def.-Int.’s Comments), ECF No. 62. It cited four reasons that largely mirror the concerns expressed by Commerce: (1) the Remand Results are not supported by evidence on the record, instead impermissibly relying on information outside the record; (2) the Remand Results ignore relevant information on the record; (3) the Remand Results are based on a misunderstanding of the ITC's final determination in the original investigation; and (4) the Remand Results fail to properly account for all of the ITC's statements in the Third and Fourth...