592 F.Supp.3d 1299
Ct. Int'l Trade2022Background:
- The antidumping order at issue (Thailand Order) dates to 1986 and covers circular welded carbon steel pipes and tubes (CWP) from Thailand.
- In 1985 petitioners (including Wheatland) expressly withdrew line pipe from the petition because Thailand did not manufacture line or dual-stenciled pipe at that time; the ITC made no material-injury finding for line pipe from Thailand.
- In 2020 Commerce self-initiated a scope inquiry and issued a Final Scope Ruling finding that dual-stenciled line pipe fell within the Thailand Order.
- Saha Thai challenged that ruling; the Court in Saha Thai I held Commerce’s original scope ruling unlawful and remanded, instructing Commerce to reconsider in light of the administrative record and the ITC reviews.
- On remand Commerce (under protest) concluded dual-stenciled standard pipe and line pipe are not covered by the Thailand Order; Wheatland and Commerce contested use of certain prior ITC sunset reviews and a presidential proclamation as record materials.
- The Court sustained Commerce’s remand redetermination, finding it complied with the remand and was supported by substantial evidence, and held the contested sunset reviews and proclamation were properly part of the record.
Issues:
| Issue | Plaintiff's Argument (Saha Thai) | Defendant's Argument (Commerce/Wheatland) | Held |
|---|---|---|---|
| Whether dual-stenciled line pipe is within the scope of the Thailand Order | Dual-stenciled line pipe is excluded: line pipe was withdrawn from the original petition, and ITC never found injury for line pipe from Thailand | Original Commerce ruling was correct; scope may be informed by other orders and Commerce’s interpretations; ITC statements are not dispositive | Held excluded: remand results finding dual-stenciled line pipe not covered sustained; record supports exclusion |
| Whether Wheatland/Commerce forfeited objections to use of First/Second Sunset Reviews and Proclamation | Saha Thai repeatedly cited the reviews before agency and court; Wheatland/Commerce failed to timely object, so objections are forfeited | Argued those documents are extra-record and should not be considered | Held forfeited: parties failed to timely raise the objection during prior proceedings; issue foreclosed on remand |
| Whether First/Second Sunset Reviews and Presidential Proclamation 7274 are part of the administrative record | These documents are judicially noticeable or sufficiently intertwined with the record (cited extensively in later reviews and briefs) and therefore properly considered | Claimed these were extra-record materials and not part of the record for the Thailand proceeding | Held part of the record: proclamation is judicially noticeable; the earlier reviews are sufficiently intertwined and cited by later reviews and the record, so they must be considered |
| Proper interpretation and weight of ITC statements across sunset reviews | ITC consistently stated dual-stenciled pipe enters as line pipe and is not within the scope of the orders; this history undermines Commerce’s original expansion | Commerce and Wheatland contended the ITC’s statements were general, not targeted to the Thailand Order, and Commerce may rely on other proceedings | Held ITC statements are consistent and persuasive; record shows ITC never made a material-injury finding for line pipe from Thailand, supporting exclusion |
Key Cases Cited
- Saha Thai Steel Pipe Pub. Co., Ltd. v. United States, 547 F. Supp. 3d 1278 (Ct. Int’l Trade 2021) (prior remand opinion finding Commerce’s original scope ruling unlawful)
- Sunpreme Inc. v. United States, 946 F.3d 1300 (Fed. Cir. 2020) (Commerce may not change an order’s scope)
- Viraj Group, Ltd. v. United States, 343 F.3d 1371 (Fed. Cir. 2003) (preserving protest/appeal rights when agency acts under protest)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (distinguishing forfeiture and waiver)
- Floral Trade Council v. United States, 709 F. Supp. 229 (Ct. Int’l Trade 1989) (documents sufficiently intertwined with an investigation may be treated as part of the record)
- F. Lli De Cecco Di Filippo Fara San Martino S.P.A. v. United States, 980 F. Supp. 485 (Ct. Int’l Trade 1997) (agency cannot ignore relevant materials before it)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (substantial evidence review requires considering record materials that fairly detract from agency conclusions)