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

• Decision Date: 02 December 2022
• Docket Number: Slip Op. No. 22-134,Court No. 1:21-00049
• Citation: 605 F.Supp.3d 1348
• Parties: SAHA THAI STEEL PIPE PUBLIC CO., LTD., Plaintiff, v. UNITED STATES, Defendant, and Wheatland Tube Co., Defendant-Intervenor.
• Court: U.S. Court of International Trade

605 F.Supp.3d 1348

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

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

Slip Op. No. 22-134

Court No. 1:21-00049

United States Court of International Trade.

December 2, 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. 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.

Vaden, Judge:

Saha Thai Steel Pipe Public Company, Ltd. (Saha Thai) filed this case under Section 516A of the Tariff Act of 1930, as amended. Saha Thai challenges the final determination issued by the U.S. Department of Commerce (Commerce) after Commerce conducted an administrative review of its 1986 antidumping duty order (Thailand Order) on circular welded carbon steel pipes and tubes (CWP) imported from Thailand (Case No. A-549-502). Saha Thai challenges Commerce's decision to apply adverse inferences drawn from facts otherwise available (AFA) and the resulting 37.55 percent dumping margin. See Compl. ¶¶ 15–19, ECF No. 6; 19 U.S.C. § 1677e(b)(1)(A). Before the Court is Plaintiff's Rule 56.2 Motion for Judgment on the Agency Record. Pl.’s Mot. for J. on the Agency R. (Pl.’s Mot.), ECF No. 22. For the reasons set forth below, the Court finds that Commerce's decision to apply adverse inferences drawn from facts otherwise available is not supported by substantial evidence, GRANTS the Plaintiff's Motion, and REMANDS the Final Determination to Commerce to render a redetermination consistent with the Court's opinion.

BACKGROUND

Saha Thai is a foreign producer and exporter of circular welded steel pipes and tubes. See Compl. ¶ 3, ECF No. 6. The facts in this case are intertwined with those in a recent scope inquiry case involving the same parties. See Saha Thai Steel Pipe Pub. Co., Ltd. v. United States , 547 F. Supp. 3d 1278 (CIT 2021) ( Saha Thai I ); Saha Thai Steel Pipe Pub. Co., Ltd. v. United States , 592 F. Supp. 3d 1299 (CIT 2022) ( Saha Thai II ) . As noted in the Court's earlier opinion:

Saha manufactured standard pipes, dual-stenciled pipes imported as line pipe, and line pipe, all produced in Thailand for importation into the United States. The International Trade Commission (ITC) has provided a concise and useful explanation of the differences between line pipe and standard pipe. The ITC's description, from its preliminary injury determination published before Commerce's antidumping order imposing duties on standard pipe imported from Thailand, is as follows:

We have addressed the like product question regarding standard pipes and tubes (standard pipe) and line pipes and tubes (line pipe) in prior investigations. In those investigations, the Commission recognized distinctions between standard pipe and line pipe.

Standard pipe is manufactured to American Society of Testing and Materials (ASTM) specifications and line pipe is manufactured to American Petroleum Institute (API) specifications. Line pipe is made of higher grade steel and may have a higher carbon and manganese content than is permissible for standard pipe. Line pipe also requires additional testing. Wall thicknesses for standard and line pipes, although similar in the smaller diameters, differ in the larger diameters. Moreover, standard pipe (whether imported or domestic) is generally used for low-pressure conveyance of water, steam, air, or natural gas in plumbing, air-conditioning, automatic sprinkler and similar systems. Line pipe is generally used for the transportation of gas, oil, or water in utility pipeline distribution systems.

Certain Welded Carbon Steel Pipes and Tubes from Thailand and Venezuela, Inv. Nos. 701-TA-242 and 731-TA-252 and 253 (Preliminary), USITC Pub. 1680 (Apr. 1985), Joint Appendix (J.A.) at 1094-96, ECF No. 42. So-called dual-stenciled pipe has received both an American Society of Testing and Materials (ASTM) stencil and an American Petroleum Institute (API) stencil, indicating that it meets the minimum requirements for both standards. See J.A. at 1563 (providing a definition for dual-stenciled pipe).

Saha Thai I , 547 F. Supp. 3d at 1281–82. This description and the facts therein recounted remain the same in this case.

I. The Recent Scope Inquiry

It is important to note that, although many of the facts of the separate scope inquiry proceedings before the Court are relevant to this administrative review, each case rises and falls on its own merits; the legal issues are independent. Because many of the misunderstandings in this case are predicated on disagreements over the scope of the order, however, a brief summary of the recent scope inquiry is necessary.

On November 22, 2019, Commerce initiated a scope inquiry, examining whether dual-stenciled pipe imported as line pipe from Thailand was covered by the scope of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. Commerce Letter Rejecting Inquiry with Administrative Review (Commerce Rejection Letter) at 1 (Feb. 24, 2020), J.A. at 4,414, ECF No. 37 (noting the date the scope inquiry began). Commerce ultimately concluded that the scope of the order did include dual-stenciled pipe. It came to this determination despite the fact that, in each of the four prior sunset reviews of the order, dual-stenciled pipe imported as line pipe was not considered within the scope of the Thailand Order. See Saha Thai I , 547 F. Supp. 3d at 1282–86 ; see also Saha Thai II , 592 F. Supp. 3d at 1305. Commerce issued its final scope determination on June 30, 2020. Saha Thai I , 547 F. Supp. 3d at 1284 ; Saha Thai II , 592 F. Supp. 3d at 1302. Saha Thai challenged those results, initiating proceedings at the Court of International Trade on July 17, 2020. Saha Thai I , 547 F. Supp. 3d at 1287.

On October 6, 2021, this Court remanded Commerce's scope inquiry results. Id. at 1292. The Court found that "Commerce lack[ed] substantial evidence for its position that dual-stenciled pipe imported as line pipe is included within the Scope of the Thailand Order" and that Commerce "unlawfully sought to expand the scope of its original order." Id. As the Court explained,

First, Thailand did not produce dual-stenciled pipe at the time of the original investigation and order, and the request was effectively withdrawn from consideration by the petitioners themselves. Second, the (k)(1) materials show that the ITC made no injury determination as to dual-stenciled or mono-stenciled line pipe from Thailand; therefore, antidumping duties cannot be imposed on those types of pipes when imported from Thailand. Third, Commerce and the ITC throughout the (k)(1) materials consistently treat dual-stenciled pipe as line pipe when imported into the United States.

Id. The Court remanded the case to Commerce to make a redetermination in compliance with the Court's opinion and order; Commerce filed those remand results on January 4, 2022. Id. at 1299. Commerce reconsidered the evidence in light of the Court's opinion and came to the conclusion that dual-stenciled line pipe is not included in the scope of the Thailand Order. This Court affirmed Commerce's remand results on August 25, 2022. Saha Thai II , 592 F. Supp. 3d at 1313. Whether or not Commerce's second determination in the scope inquiry is sustained after any appeal as being supported by substantial evidence is largely immaterial to this case, but the dispute about the scope is important context in the present investigation under review.

II. The Disputed Final Determination

The action challenged in this case is the final determination issued in the 2018–19 administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand. See Circular Welded Carbon Steel Pipes and Tubes from Thailand: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments, In Part; 2018-2019 , 86 Fed. Reg. 7,259 (Jan. 27, 2021) (Final Results). The original order was issued in January 1986, when Commerce determined that standard pipe from Thailand was "being, or [was] likely to be, sold in the United States at less than fair value." 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). That original Final Determination described its scope as encompassing "certain circular welded carbon steel pipes and tubes, also known as ‘standard pipe ’ or ‘structural tubing.’ " Saha Thai I , 547 F. Supp. 3d at 1283 (emphasis in original).

Each year since 1998, the antidumping order has undergone an administrative review to "determine ... the rate of any antidumping duty." 19 U.S.C. § 1675(a)(1)(B) ; see Pl.’s Mot. at 2–3 n.3, ECF No. 22 (listing each yearly administrative review). On March 5, 2019, Commerce published a notice of opportunity to request an administrative review for the period from March 1, 2018, through February 28, 2019. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review , 84 Fed. Reg. 7,877 (Mar. 5, 2019). Wheatland Tube, other domestic producers, and Saha Thai all requested an administrative review on March 29, 2019. See Initiation of Antidumping and Countervailing Duty Administrative Reviews , 84 Fed. Reg. 24,743 (May 29, 2019). Commerce then published its notice initiating the review on May 29, 2019. Id. Two...