Saha Thai Steel Pipe Public Company Limited v. United States

Slip Op. No. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
SAHA THAI STEEL PIPE PUBLIC
COMPANY, LTD,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
WHEATLAND TUBE COMPANY
Defendant-Intervenor
Before: Stephen Alexander Vaden,
Judge
Court No. 1:20-cv-133
OPINION
[Granting Plaintiff’s Motion for Judgment on the Agency Record and remanding to
Commerce with instructions.]
Dated: 2FWREHU
Daniel L. Porter, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington D.C., for
Plaintiff. With him on the brief was James C. Beaty.
In K. Cho, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C. for Defendant United States. With him
on the brief were Brian M. Boynton, Acting 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 D.C., for Defendant-Intervenor.
With him on the brief were Roger B. Schagrin and Kelsey M. Rule.
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Vaden, Judge: Saha Thai Steel Pipe Public Company, Ltd. (Saha), filed this
case under Section 516A of the Tariff Act of 1930, as amended. Saha challenges the
final scope ruling issued by the U.S. Department of Commerce (Commerce) after
Commerce conducted a scope inquiry into 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 challenges Commerce’s decision to assess
antidumping duties on the importation of dual-stenciled pipe imported as line pipe
from Thailand. See Compl. ¶ 1, ECF No. 6. Before the Court is the 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. 26. For the reasons set forth below, the Court finds that
Commerce’s determination that dual-stenciled pipe is covered by the Thailand Order
is not supported by substantial evidence, holds that Commerce’s Final Scope Ruling
constitutes an unlawful expansion of the scope of the underlying order, GRANTS the
Plaintiff’s Motion, and remands the Final Scope Ruling back to Commerce to render
a redetermination consistent with this Court’s opinion.
BACKGROUND
The products at issue in this case are 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
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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).
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I. 	The Original Antidumping Investigation
Early in 1985, a subcommittee of the self-named Committee on Pipe and Tube
Imports, with its constituent domestic manufacturers, asked Commerce to impose
antidumping duties on circular welded carbon steel pipe imports from Thailand. See
id. at 1090. Their original request sought the imposition of antidumping duties on
standard, line, and dual-stenciled pipes. Id. Commerce responded to the petition with
a memo on March 7, 1985, asking the petitioners to provide “[d]ocumentation which
demonstrates that line pipe is manufactured in Thailand” and “[d]ocumentation
which supports the allegation that line pipe from Thailand [was] being sold at less
than fair value.” J.A. at 1753.
After receiving Commerce’s March 7th letter, the initial petitioners, among
which was Defendant-Intervenor Wheatland Tube Company (Wheatland), filed an
amended petition on March 12, 1985. Amended Petition Filed by Petitioner on March
12, 1985, J.A. at 1755-79. In that amended petition, the initial petitioners rejected a
meaningful distinction between standard and line pipe. Id. The initial petitioners
instead argued that a precedent existed that collapsed line pipe and standard pipe
into a single reviewable industry and that the better distinction was between small
diameter and large diameter pipes. Id. at 1763. Despite these arguments in their
amended petition, in a subsequent letter dated March 14, 1985, the initial petitioners
expressly withdrew from their “petitions insofar as they concern line pipe, TSUS
numbers 	610.3208 	and 	3209.” 	Letter 	Dated 	March 	14, 	1985, 	from 	Petitioner
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Regarding Partial Withdrawal of Petition, J.A. at 1781-82. The Tariff Schedule of the
United States (TSUS) numbers 610.3208 and 3209 are the numbers under which line
pipe, dual-stenciled or otherwise, would have been imported in 1985. See TSUS 1985
Version; see also Tr. of Oral Arg. 7:8-12, ECF No. 51, July 26, 2021 (Government and
Wheatland’s admission that line pipe and dual-stenciled pipe would have been
imported under these numbers in 1985). At no point before or after submitting the
March 	14th 	letter 	did 	the 	initial 	petitioners 	provide 	any 	“[d]ocumentation”
supporting “the allegation that line pipe from Thailand [was] being sold at less than
fair value” or even “manufactured in Thailand.” J.A. at 1753. 	Indeed, the initial
petitioners acknowledged that “no Thai company is presently licensed to produce pipe
to API specifications, and imports of API line pipe from Thailand are therefore not
likely.” J.A. at 1781.1
About a month after the back-and-forth between Commerce and the initial
petitioners, the ITC released a preliminary report titled Certain Welded Carbon Steel
Pipes and Tubes from Thailand and Venezuela; Determination of the Commission in
Investigation No. 701-TA-242: (Preliminary) Under the Tariff Act of 1930, Together
with the Information Obtained in the Investigation. The ITC determined “pursuant to
section 733(a) of the Tariff Act of 1930 (19 U.S.C. § 1673b(a)), that there is a
reasonable indication that an industry in the United States is threatened with
1 Meaning, Thailand produced neither line pipe, nor dual-stenciled line pipe, at the time of the
initial petition, injury determination, and antidumping order.
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material injury by reason of imports of welded carbon steel standard pipes and tubes
from Thailand,” i.e., the standard pipe industry. J.A. at 1089. In its analysis, the ITC
directly addressed the initial petitioners’ argument — that distinguishing between
line and standard pipe was wrong and that the better distinction was between large
and small diameter pipes — describing it as “somewhat arbitrary.” See id. at 1096.
The ITC further stated that “domestic line pipe is like imported line pipe and not like
imported standard pipe,” and “domestic standard pipe is like imported standard pipe
and is not like imported line pipe.” Id. The ITC also described at length the differences
between standard pipe and line pipe. See id. at 1095.
Almost a year later in January 1986, Commerce issued its final determination
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. 3384
(Jan. 27, 1986), J.A. at 1216. This Final Determination described its scope as
encompassing “certain circular welded carbon steel pipes and tubes, also known as
‘standard pipe’ or ‘structural tubing,’ which includes pipe and tube with an outside
diameter of 0.375 inch or more but not over 16 inches, or any wall thickness, as
currently provided in items 610.3231, 610.3234, 610.3241, 610.3242, 610.3243,
610.3252, 610.3254, 610.3256, 610.3258 and 610.4925 of the Tariff Schedules of the
United States Annotated.” Id. (emphasis added). The TSUS numbers under which
dual-stenciled and single-stenciled line pipes would have been imported in 1986 were
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not listed in this scope. 	This determination relied on the preliminary ITC report
released in April 1985 that addressed the material injury caused to the U.S. standard
pipe industry by the importation of standard pipe from Thailand, not by line or dual-
stenciled pipe. Id.
After Commerce issued its Final Determination on standard pipe imported
from Thailand, the ITC issued its own final report in February 1986. This report
addressed the material injury to domestic industry, actual and threatened, resulting
from the importation of standard pipe from Thailand and the importation of line and
standard pipe from Turkey. 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 1221. The ITC evaluated the effects of both
imported line pipe and standard pipe from Turkey but only evaluated the effects of
standard pipe from Thailand. See id. As a result of its analysis, the ITC made
independent material injury determinations regarding line pipe imported from
Turkey, standard pipe imported from Turkey, and standard pipe imported from
Thailand. Id. At no point did the ITC conflate line and standard pipe of identical sizes.
See id. at 1233-34. At no point did the ITC make a material injury determination
regarding line pipe or dual-stenciled pipe imported from Thailand. Id. And the ITC
consistently treated standard pipe and line pipe as different products throughout its
injury analyses but did not mention dual or multi-stenciled pipe imported as line pipe.
See id. at 1221-1376.
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In March 1986, Commerce published its antidumping duty order (the Thailand
Order) and the scope of that order included:
The 	products 	under 	investigation 	are 	certain 	circular
welded carbon steel pipes and tubes (referred to in this
notice as “pipes and tubes”), also known as “standard pipe”
or “structural tubing,” which includes pipe and tube with
an outside diameter of 0.375 inch or more but not over 16
inches, of any wall thickness, as currently provided in
items 610.3231, 610.3234, 610.3241, 610.3242, 610.3243,
610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of
the 	Tariff 	Schedules 	of 	the 	United 	States 	Annotated
(TSUSA).
Antidumping Duty Order: Circular Welded Carbon Steel Pipes and Tubes from
Thailand, 51 Fed. Reg. 8341, 8341 (Dep’t of Commerce Mar. 11, 1986).
Following the 1989 shift from the Tariff Schedule of the United States (TSUS)
to the Harmonized Tariff Schedule of the United States (HTSUS), the language
governing the scope of the Thailand Order was updated to align with the HTSUS and
now states:
The products covered by the order are certain circular
welded carbon steel pipes and tubes from Thailand. The
subject merchandise has an outside diameter of 0.375 inch
or more, but not exceeding 16 inches, of any wall thickness.
These products, which are commonly referred to in the
industry as “standard pipe” or “structural tubing” are
hereinafter 	designated 	as 	“pipes 	and 	tubes.” 	The
merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) item numbers
7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040,
7306.30.5055, 7306.30.5085 and 7306.30.5090. Although
the HTSUS subheadings are provided for convenience and
purposes of U.S. Customs and Border Protection (CBP), the
written description of the merchandise subject to the order
is dispositive.
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Antidumping Duty Order on Circular Welded Carbon Steel Pipes and Tubes from
Thailand: Final Scope Ruling on Line Pipe and Dual-Stenciled Standard and Line
Pipe from Thailand, dated June 30, 2020 (“Final Scope Ruling”), J.A. at 2042;
Circular Welded Carbon Steel Pipes and Tubes From Thailand: Final Results of
Antidumping Duty Administrative Review and Final Determination of No Shipments,
86 Fed. Reg. 7260 (Dep’t of Commerce Jan. 27, 2021); see also Certain Circular Welded
Carbon Steel Pipes and Tubes From Thailand; Preliminary Results of Antidumping
Duty Administrative Review, 55 Fed. Reg. 42596, 42596 (Dep’t Commerce Oct. 22,
1990) (noting transition from TSUS to HTSUS).
II. 	Subsequent Reviews of the Thailand Order
Not quite a decade after Commerce published the Thailand Order, President
William Jefferson Clinton signed the Uruguay Round Agreements Act (URAA). Pub.
L. No. 103-465, 108 Stat. 4809 (1994). Along with resurrecting dead copyrights on
largely forgotten movies, the Uruguay Round Agreements Act established a five-year
sunset review process for antidumping and countervailing duty orders. Uruguay
Round Agreements Act § 220. Under this process, every five years, the administering
agency and the ITC conduct a review of all active antidumping and countervailing
orders to determine whether they remain necessary. 19 U.S.C. § 1675.
Since the signing of the Uruguay Round Agreements Act, the ITC has initiated,
conducted, and concluded four sunset reviews of the Thailand Order. The ITC
conducted its first review in 1999 and published the results in 2000; it published the
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results of the second review in 2006, the third review in 2012, and the fourth in 2018.
See Certain Pipe and Tube from Argentina, Brazil, Canada, India, Korea, Mexico,
Singapore, Taiwan, Thailand, Turkey, and Venezuela, Inv. Nos. 701-TA-253, 731-TA-
132, 252, 271, 273, 276, 277, 296, 409, 410, 532–534, 536, and 537 (First Sunset
Review), USITC Pub. 3316 at 6 (July 2000); Certain Pipe and Tube from Argentina,
Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey, Inv. Nos. 701-TA-253,
731-TA-132, 252, 271, 273, 409, 410, 532–534, and 536 (Second Sunset Review),
USITC Pub. 3867 at 4–5 (July 2006); Certain Circular Welded Pipe and Tube from
Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey, Inv. Nos. 701-TA-253
and 731-TA-132, 252, 271, 273, 532-534 and 536 (Third Sunset Review), USITC Pub.
4333 (June 2012); Certain Circular Welded Pipe and Tube from Brazil, India, Korea,
Mexico, Taiwan, Thailand, and Turkey (Final), Inv. Nos. 701-TA-253 and 731-TA-
132, 252, 271, 273, 532–534, and 536 (Fourth Sunset Review), USITC Pub. 4754 (Jan.
2018).
In the ITC’s First Sunset Review, the express exclusion of line and dual-
stenciled pipe from relevant antidumping orders of line pipe was discussed. See First
Sunset Review at 11-12, n.53. This discussion was within the context of streamlining
the ITC’s different and like product analyses. See id. at 11-12. The ITC noted that
“the orders on CWP from Thailand and Turkey (CVD) have no express exclusions for
products excluded from the scopes in all later cases, including line pipe, OCTG, boiler
tubing, cold-drawn or cold-rolled mechanical tubing, pipe and tube hollows for
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redraws, finished scaffolding, and finished rigid conduit.” Id. n.53. Notably, none of
these products have ever been treated as within the scope of the Thailand Order,
despite the lack of an express exclusion. Cf. J.A. passim.
Elsewhere in the same sunset review, the ITC discussed line pipe and dual-
stenciled line pipe in the context of “safeguard duties” imposed by President Clinton
on every country reviewed that produced line pipe and dual-stenciled pipe at the time,
except Canada and Mexico. First Sunset Review at 28; see also To Facilitate Positive
Adjustment to Competition from Imports of Certain Circular Welded Carbon Quality
Line Pipe, Proclamation No. 7274, 65 Fed. Reg. 9191 (Feb. 23, 2000).2 In that
discussion, the ITC notes that dual-stenciled pipe imported as line pipe, and line pipe
simpliciter, were excluded from antidumping orders but were nonetheless subject to
President Clinton’s “safeguard duties” covering line pipe. First Sunset Review at 28.
When the ITC conducted its second review of the Thailand Order and other
similar antidumping orders, the safeguard duties against line pipe had expired or
otherwise ended. See Second Sunset Review at 11, n.55. Nonetheless, in the Second
Sunset Review the ITC noted that dual-stenciled pipe imported as line pipe had only
been subject to duties under President Clinton’s safeguard duties covering line pipes,
not standard pipes: “Following an affirmative determination by the Commission, in
March 2000, President Clinton issued Proclamation 7274, imposing additional duties
2 The Proclamation’s safeguard duties expired in March 2003. Proclamation No. 7274, 65 Fed.
Reg. at 9194.
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of 19 percent on line pipe imports of more than 9,000 short tons annually (including
“dual-stenciled” pipe but excluding “arctic grade” line pipe).” Id. at Overview-5 n.16.
The Second Sunset Review also noted that “multiple-stenciled line pipe requires
additional 	steel 	than 	CWP 	[sic] 	to 	meet 	American 	Petroleum 	Institute 	(API)
specifications applicable to line pipe. At [then] current steel prices, this would require
that a multiple-stenciled product be sold at a considerable price premium over a
product that satisfies ASTM specifications but not API specifications.” See id. at 13
n.66.
In its third review of the Thailand Order, the ITC described the scope of all
Orders under its review and in that description included this caveat: “[D]ual-stenciled
pipe, which for U.S. customs purposes enters as line pipe under a different tariff
subheading, is not within the scope of the orders.” Third Sunset Review at 8. The
Thailand Order did not receive a special carve out from the general language of the
Third Sunset Review’s scope.3 See id.
In the Fourth Sunset Review of the Thailand Order in January 2018, the ITC
reiterated the position that it took in the Third Sunset Review, that it implied or
stated in the first and second reviews, and that Commerce expressed in 1985, 1986,
3 The argument that the lack of an express exclusion in the Thailand Order means the Third
Sunset Review’s scope cannot possibly include the Thailand Order within its general exclusion of line
pipe, single or dual-stenciled, is unavailing. That Thailand’s order does not expressly exclude line pipe
or dual-stenciled pipe is a function of Thailand’s production capacity. It is not an expression of intent
to include line pipe, single and dual-stenciled, within the scope of the Thailand Order. As mentioned
above, Thailand’s order does not include an express exclusion because Thailand did not produce line
pipe or dual-stenciled line pipe at the time the Thailand Order was issued.
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and 2012. See Fourth Sunset Review at 6-7. The Fourth Sunset Review stated that
line pipe, which includes dual-stenciled pipe, was not within the scope of the
antidumping orders concerning standard pipes:
Producers primarily make CWP to ASTM specifications
A53, 	A135, 	and 	A795.26 	Since 	these 	standards 	often
require engineering characteristics that overlap with other
specifications, a pipe may be dual stenciled, i.e., stamped
to indicate compliance with two different specifications,
such as ASTM A53 and API 5L. Dual-stenciled pipe, which
enters as line pipe under a different subheading of the
Harmonized Tariff Schedule of the United States (“HTS”)
for U.S. customs purposes, is not within the scope of the
orders.
Id.
III. 	The Scope Determination in Question
In 	January 	2019, 	Wheatland 	told 	Commerce 	“that 	certain 	imports 	of
merchandise from Thailand that are entering the United States as ‘line pipe’ are
circumventing” 	the 	Thailand 	Order 	and 	requested 	that 	Commerce 	make 	a
circumvention ruling against Saha. Circumvention Ruling Request, J.A. at 1807.
According to Wheatland and Southland Tube Company, the domestic interested
parties who filed the request, Saha was circumventing the Thailand Order through
minor alterations to Saha’s merchandise. See id. They alleged that Saha began
exporting what Wheatland considered “minorly-altered standard pipe” after Saha’s
dumping margin jumped from 1.36 percent to about 28 percent. See id. at 1811.
On November 22, 2019, Commerce self-initiated a scope inquiry into the
Thailand Order. Memorandum from Leo Ayala, International Trade Compliance
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Analyst, Office VII, Antidumping and Countervailing Duty Operations, to James
Maeder, Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations, regarding 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 (Nov. 22, 2019), J.A. at 1800. 	Before the scope
inquiry, during the inquiry, and since, Saha has consistently asserted that its dual-
stenciled line pipes are not standard pipes with minor alterations and that these
dual-stenciled line pipes are outside the antidumping duty order’s scope. 	J.A. at
1171-1203, 1898-1953, and 1975-2022.
Commerce issued a preliminary scope ruling in February 2020, finding for the
first time in thirty-four years that dual-stenciled line pipe is within the scope of the
Thailand Order while single-stenciled line pipe is not. See Antidumping Duty Order
on Circular Welded Carbon Steel Pipes and Tubes from Thailand: Preliminary Scope
Ruling on Line Pipe and Dual-Stenciled Standard and Line Pipe (Feb. 24, 2020), J.A.
at 1954. All the parties submitted comments and arguments on the preliminary
ruling. 	J.A. at 1962-2040. Commerce remained unmoved; and in its Final Scope
Ruling, Commerce again found that dual-stenciled pipe is within the scope of the
Thailand Order. See Final Scope Ruling, J.A. at 2042.
IV. 	The Present Case
On July 17, 2020, Saha sued the Department of Commerce seeking to overturn
its scope decision. ECF No. 6. Wheatland intervened in the case on August 12, 2020.
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ECF No. 15. 	In December 2020, Saha filed its Motion for Judgment on the Agency
Record, for which the Court held an extensive hearing on July 15, 2021. 	ECF Nos.
26 and 47. 	Counsel for all parties attended. 	During the hearing, the Court asked
several questions.
The first question was:
[Y]ou can just tell me with a simple yes or no if the
statement as I have presented it is factually correct or
not…. 	[I]n 1985 to 1986, the country of Thailand did not
produce line pipe, including dual stenciled-line pipe.
Tr. of Oral Arg. 5:24-25, 6:1-4, ECF No. 51, July 26, 2021. The Government responded
“Your Honor, our understanding is that the – the stated reason for the withdrawal –
affirmative withdrawal of the original petition was that – was the notion that there
was no manufacture of line pipe in Thailand at the time.” Id. at 6:12-16. Wheatland
stated it understood “that there was neither production of regular single stenciled
line pipe nor dual stenciled standard inline [sic] pipe in Thailand at the time the
petitions were filed.” Id. at 7:1-3.
The second question the Court asked was:
Was all line pipe, including dual stenciled line pipe, in
1985/86 	imported 	under 	TSUS 	Codes 	610.3208 	and/or
610.3209?
Id. at 7:8-10. Both the Government and Wheatland admitted that dual-stenciled pipe
would have been imported under the TSUS codes for line pipe in 1985 and 1986. Id.
at 7:11-22.
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At the end of the hearing, the Court ordered the Government and Wheatland
to review this case’s record thoroughly. 	After reviewing the record, the Court
required them to write a letter identifying for the Court “in the record of this matter”
where “there was an instance or more than one instance of…the Government”
referring “explicitly to dual stenciled pipe as standard pipe.” Id. at 71:3-7. The Court
also gave Saha’s counsel the right to respond. Id. at 72:1-7.
The 	Government 	and 	Wheatland 	timely 	submitted 	their 	letters. 	The
Government identified for the Court quotes in the Fourth Sunset Review that came
from Commerce’s antidumping order on standard pipe imported from Taiwan and
from its antidumping order on standard pipe from Brazil, Mexico, and Korea.
Government’s Letter Re: Saha Thai Steel Pipe Public Company Limited v. United
States, No. 20-133 (Ct. Int’l Trade), at 1, ECF No. 49 (citing to Fourth Sunset Review
at I-12 to I-13). The language that Commerce identifies is as follows:
Brazil, Mexico, and Korea: Standard pipe that is dual or
triple certified/stenciled that enters the U.S. as line pipe of
a kind used for oil or gas pipelines is also not included in
the orders.
Taiwan: 	Standard 	pipe 	that 	is 	dual 	or 	triple
certified/stenciled that enters the U.S. as line pipe of a kind
or used for oil and gas pipelines is also not included in the
scope of the order.
Wheatland, like the Government, also identifies the same language from other
antidumping orders that is quoted in the Fourth Sunset Review. Wheatland’s Letter
Re: Saha Thai Steel Pipe Public Company Limited v. United States (Ct. No. 20-00133):
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Response to Court’s July 15, 2021 Order, at 1-2, ECF No. 50. 	But Wheatland goes
even further and cites additional quotes from the preliminary and final investigations
into CWP imported from China. 	Id. at 3-4; Circular Welded Carbon- Quality Steel
Pipe from China, Inv. Nos. 701-TA-447 and 731-TA-1116 (Preliminary), USITC Pub.
3938 (July 2007); Circular Welded Carbon-Quality Steel Pipe from China, Inv. Nos.
701-TA-447 and 731-TA-1116 (Final), USITC Pub. 4019 (July 2008).
Interestingly, 	the 	language 	that 	the 	Government 	and 	Wheatland 	have
referenced in response to the Court’s order is all language from antidumping orders
that the Government and Wheatland have consistently argued “are not probative of
the [Thailand] order’s scope.” Def.’s Resp. to Pl.’s Mot. for J. on the Agency R. (Def.’s
Resp.) at 18, ECF No. 37. 	The Government in its response brief had argued that
antidumping 	orders 	for 	other 	countries 	are 	not 	“enumerated 	under 	19 	CFR
351.225(k)(1)” and that the (k)(1) materials do not “include determinations [from]
proceedings on similar products from different countries.” Id. at 19. 	Wheatland
likewise argued that the antidumping orders and investigations dealing with other
countries “are not included within the ‘scope determinations’ that Commerce must
consider under section (k)(1).” 	See Defendant-Intervenor’s Resp. to Pl.’s Mot. for J.
on the Agency R. (Def.-Int.’s Resp.) at 21, ECF No. 34. 	As Wheatland put it, “Saha
Thai fails to appreciate that agency determinations arising from different orders with
different scope language—even if similarly captioned” are not relevant. 	Id. 	And
“[i]ndeed, there is no basis in law for Saha Thai’s assertion that scope determinations
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Court No. 1:20-cv-133 	Page 18
arising from different proceedings involving different records and different scope
language should have any bearing on Commerce’s analysis of the (k)(1) sources.” Id
Saha timely responded to the Government and Wheatland’s letters. ECF No.
52. In its response letter, Saha pointed out that the Government and Wheatland do
not cite to any document or statement in the record underlying the Thailand Order.
Id. at 1. 	Saha highlighted how the Government and Wheatland’s letters quote
language from other antidumping orders that do not involve pipe imports from
Thailand. Id. at 1-2.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over Plaintiff’s challenge to the Scope Ruling under
19 U.S.C. § 1516a(a)(2)(B)(vi) and 28 U.S.C. § 1581(c), which grant the Court
authority 	to 	review 	actions 	contesting 	scope 	determinations 	described 	in 	an
antidumping order. The Court must sustain Commerce’s “determinations, findings,
or conclusions” unless they are “unsupported by substantial evidence on the record,
or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). If they are
supported by neither substantial evidence nor the law, the Court must “hold unlawful
any determination, finding, or conclusion found.” Id. “[T]he question is not whether
the Court would have reached the same decision on the same record[;] rather, it is
whether the administrative record as a whole permits Commerce’s conclusion.” See
New American Keg v. United States, No. 20-00008, 2021 WL 1206153, at *6 (Ct. Int'l
Trade Mar. 23, 2021).
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Reviewing agency determinations, findings, or conclusions for substantial
evidence, the Court assesses whether the agency action is reasonable given the record
as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1350–51 (Fed. Cir.
2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The
substantiality of evidence must take into account whatever in the record fairly
detracts from its weight.”). The Federal Circuit has described “substantial evidence”
as “such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” DuPont Teijin Films USA v. United States, 407 F.3d 1211, 1215 (Fed.
Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
DISCUSSION
I. 	Legal Framework
The 	Federal 	Circuit 	has 	arguably 	provided 	the 	United 	States 	Court 	of
International Trade with two distinct methods that the Court may use to begin its
analysis of the lawfulness of Commerce’s scope inquiries into antidumping orders.
The first method evaluates the content of the plain language of an antidumping order
without reference to any other document, except typical references used when
analyzing any law or regulation, such as a dictionary. See OMG, Inc. v. United States,
972 F.3d 1358, 1363 (Fed. Cir. 2020). 	The second method is the Meridian method,
which requires an analysis of a scope’s language within the context of the (k)(1)
materials, i.e., the administrative documents produced during the agency process
that led to the antidumping order. 	Meridian Prod. v. United States, 890 F.3d 1272,
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1277 (Fed. Cir. 2018). 	Both methods seek to determine whether a scope’s language
is sufficiently ambiguous that Commerce must resort to additional documents or
considerations to interpret an order’s scope.
Under OMG, ‘‘the first step in a scope ruling proceeding is to determine
whether the governing language is in fact ambiguous.’’ ArcelorMittal Stainless
Belgium N.V. v. United States, 694 F.3d 82, 87 (Fed. Cir. 2012). 	‘‘If it is not
ambiguous, the plain meaning of the language governs.’’ Id. But ‘‘[i]f the language is
ambiguous, Commerce must next consider the . . . ‘(k)(1) materials.’’’ Mid Continent
Nail Corp. v. United States, 725 F.3d 1295, 1302 (Fed. Cir. 2013) (citations omitted).
Under Meridian, “the plain language of an antidumping order is paramount.”
Meridian Prod. v. United States, 890 F.3d 1272, 1277 (Fed. Cir. 2018). 	But when
“reviewing the plain language of a duty order, Commerce must consider” the (k)(1)
materials. 	Id. at 1277; see also Midwest Fastener Corp. v. United States, 494
F.Supp.3d 1335, 1340 (Ct. Int'l Trade 2021) (“When considering the scope language,
Commerce will take into account descriptions of the merchandise contained in . . .
[the (k)(1) sources]”). If the above method does “not dispositively answer the question,
Commerce may consider the…so-called (k)(2) factors.” Meridian Prod., 890 F.3d at
1278.
Regardless of the method, the question of whether a scope’s language is
ambiguous is reviewed by the Court de novo. OMG, 972 F.3d at 1363; Meridian Prod.,
851 F.3d at 1382. 	After its de novo review of Commerce’s ambiguity determination
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Court No. 1:20-cv-133 	Page 21
in this case, the Court has determined that the distinction between the Federal
Circuit’s two methods is of no moment given that the plain language of the Thailand
Order’s scope is ambiguous without the context of the (k)(1) materials. Whether the
Court uses the (k)(1) materials from the beginning or uses them only after reading
the original scope does not matter. In this case, the (k)(1) materials must be read.
The (k)(1) materials consist of ‘‘[t]he descriptions of the merchandise contained
in the petition, the initial investigation, and the determinations of the Secretary
(including 	prior 	scope 	determinations) 	and 	the 	Commission.’’ 	19 	C.F.R. 	§
351.225(k)(1). So-called “Sunset Reviews” conducted pursuant to the Uruguay Round
Agreements Act are (k)(1) materials. See Quiedan Co. v. United States, 294 F.Supp.3d
1345 (Ct. Int'l Trade 2018) (including sunset reviews among the (k)(1) materials),
aff’d, 927 F.3d 1328 (Fed. Cir. 2019). 	Also included among the (k)(1) materials are
“determinations 	of…the 	[ITC],” 	such 	as 	injury 	determinations. 	19 	C.F.R. 	§
351.225(k)(1).
“A fundamental requirement of both U.S. and international law is that an
antidumping duty order must be supported by an ITC determination of material
injury covering the merchandise in question.” Wheatland Tube Co. v. United States,
973 F.Supp. 149, 158 (Ct. Int'l Trade 1997), aff'd, 161 F.3d 1365 (Fed. Cir. 1998). The
law permitting Commerce to issue antidumping orders, 19 U.S.C. § 1673, “is
remedial, [and] . . . was designed to protect domestic industry from sales of imported
merchandise at less than fair value which either caused or threatened to cause
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Court No. 1:20-cv-133 	Page 22
injury.” Badger-Powhatan, Div. of Figgie Int'l, Inc. v. United States, 608 F.Supp. 653,
656 (Ct. Int'l Trade 1985). Therefore, “[w]here the domestic industry is not injured,
it cannot avail itself of the relief accorded under the antidumping statute.” Id. at 657.
And Commerce cannot “assess antidumping duties on products intentionally omitted
from the ITC's injury investigation.” Wheatland Tube Co. v. United States, 161 F.3d
1365, 1371 (Fed. Cir. 1998). Allowing the ITC to assess such duties without an injury
determination “would itself frustrate the purpose of the antidumping laws.” Id.
If these (k)(1) materials are dispositive, whether they are evaluated while
initially interpreting a scope or evaluated only after a scope is found ambiguous,
Commerce may issue a final ruling based on those materials. See Tak Fat Trading
Co. v. United States, 396 F.3d 1378, 1382 (Fed. Cir. 2005). If the (k)(1) materials are
not dispositive, Commerce must consider ‘‘(k)(2) factors,’’ which include “(i) [t]he
physical 	characteristics 	of 	the 	product; 	(ii) 	[t]he 	expectations 	of 	the 	ultimate
purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which
the product is sold; and (v) [t]he manner in which the product is advertised and
displayed.” 19 C.F.R. § 351.225(k)(2); see also 19 C.F.R. § 351.225(e); Meridian Prod.,
890 F.3d at 1278.
Although this Court owes ‘‘significant deference’’ to Commerce’s interpretation
of its orders, Commerce cannot issue an interpretation that changes the scope of the
order nor ‘‘interpret an order in a manner contrary to its terms.’’ See Duferco Steel
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Court No. 1:20-cv-133 	Page 23
Inc. v. United States, 296 F.3d 1087, 1094–95 (Fed. Cir. 2002) (quoting Eckstrom
Indus., Inc. v. United States, 254 F.3d 1068, 1072 (Fed. Cir. 2001)).
II. 	Analysis
A. 	Summary
Saha’s Motion for Judgment on the Agency Record presents three principal
issues: First, whether Commerce’s decision to include dual-stenciled pipe within the
scope of the Thailand Order is supported by substantial evidence; second, whether
Commerce’s final scope decision unlawfully expands the scope to include merchandise
that was not part of the final injury determination of the ITC; and third, whether
Commerce’s final scope decision is otherwise not in accordance with law because it is
contrary to the Federal Circuit’s decision in Wheatland Tube Co. v. United States, 161
F. 3d 1365 (Fed. Cir. 1998). Pl.’s Mot., ECF No. 26.
Saha’s argument is straightforward: 	Commerce unlawfully expanded the
scope of the Thailand Order by ignoring overwhelming evidence that dual-stenciled
line pipe was not treated as standard pipe by the ITC or by Commerce and was
intentionally excluded from the ITC’s injury determination and Commerce’s Thailand
Order. Therefore, dual-stenciled line pipe is outside the Thailand Order’s scope. See
Pl.’s Mot. at 16-24, ECF No. 26. Saha supports its contention with documents that
fall within the (k)(1) materials and with documents, orders, and determinations
concerning the same products from other countries. See J.A., ECF No. 42; see also
Pl.’s Mot. at 20, ECF No. 26.
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Court No. 1:20-cv-133 	Page 24
Commerce responds that its determination that dual-stenciled pipe is within
the scope of the Thailand Order is supported by substantial evidence because the
order’s plain language unambiguously encompasses dual-stenciled pipe. See Def.’s
Resp. at 16-20, ECF No. 37. Commerce rejects Saha’s contention that there is
probative 	value 	in 	antidumping 	orders, 	ITC 	determinations, 	and 	Commerce’s
determinations that cover the same products but are from different countries. See id.
at 18-20. Finally, Commerce asserts that its determination is consistent with the
(k)(1) materials, but that those materials do not need to be consulted given the
unambiguous language of the Thailand Order’s scope. See id. at 15-18, ECF No. 37.4
The Court disagrees with Commerce’s interpretation of the plain language of
the scope and the short shrift it gives to the (k)(1) materials. Reviewing the Thailand
Order’s scope language de novo, the Court holds that the language is ambiguous
without the context provided by the (k)(1) materials. See OMG, 972 F.3d at 1363
(scope ambiguity determinations by Commerce receive de novo review). Therefore,
the Court, like Commerce, must rely on the (k)(1) materials to interpret the Thailand
Order’s scope language. See Mid Continent Nail Corp., 725 F.3d at 1302.
After reviewing the (k)(1) materials in the administrative record with the
appropriate deference, the Court finds that Commerce lacks substantial evidence for
its position that dual-stenciled pipe imported as line pipe is included within the Scope
4 Wheatland’s arguments are essentially aligned with the Government’s.
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Court No. 1:20-cv-133 	Page 25
of the Thailand Order; Commerce has instead unlawfully sought to expand the scope
of its original order. 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.
The Court first will address Commerce’s plain language arguments; then it will
turn to an analysis of the (k)(1) materials.5
B. 	The Plain Language of the Thailand Order’s Scope
The original Thailand Order’s scope in its entirety reads:
The 	products 	under 	investigation 	are 	certain 	circular
welded carbon steel pipes and tubes (referred to in this
notice as “pipes and tubes”), also known as “standard pipe”
or “structural tubing,” which includes pipe and tube with
an outside diameter of 0.375 inch or more but not over 16
5 The Court will not discuss Wheatland Tube Co. v. United States, 161 F.3d 1365, 1371 (Fed.
Cir. 1998) at length. Wheatland Tube Co. involved an analysis of the following question: 	If the
language in an antidumping order’s scope expressly excludes a given product, but that product is then
imported and used for the same purpose as the products otherwise covered by that same order, does
the excluded product then fall under the scope of that antidumping order? See Wheatland Tube Co.,
161 F.3d at 1368-69. The answer Wheatland Tube Co. gave is no, it does not fall under the scope unless
the scope is ambiguous and the (k)(1) materials are not dispositive. Id. at 1369-70.
The present case deals with an entirely different legal issue – the applicability of an
antidumping order’s scope to products neither expressly included in nor expressly excluded from that
scope, and whether the (k)(1) materials underlying that antidumping order support by substantial
evidence the reading of that scope to nevertheless include those otherwise unmentioned products.
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Court No. 1:20-cv-133 	Page 26
inches, of any wall thickness, as currently provided in
items 610.3231, 610.3234, 610.3241, 610.3242, 610.3243,
610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of
the 	Tariff 	Schedules 	of 	the 	United 	States 	Annotated
(TSUSA).
Antidumping Duty Order: Circular Welded Carbon Steel Pipes and Tubes from
Thailand, 51 Fed. Reg. 8341, 8341 (Dep’t of Commerce Mar. 11, 1986).
Commerce later rearranged the scope language, amended the TSUS numbers
to reflect the change to the HTSUS, and added language asserting that the HTSUS
numbers are simply examples and are not exhaustive of what might be covered by
the Thailand Order:
The products covered by the order are certain circular
welded carbon steel pipes and tubes from Thailand. The
subject merchandise has an outside diameter of 0.375 inch
or more, but not exceeding 16 inches, of any wall thickness.
These products, which are commonly referred to in the
industry as “standard pipe” or “structural tubing” are
hereinafter 	designated 	as 	“pipes 	and 	tubes.” 	The
merchandise is classifiable under the Harmonized Tariff
Schedule of the United States (HTSUS) item numbers
7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040,
7306.30.5055, 7306.30.5085 and 7306.30.5090. Although
the HTSUS subheadings are provided for convenience and
purposes of U.S. Customs and Border Protection (CBP), the
written description of the merchandise subject to the order
is dispositive.
Final Scope Ruling, J.A. at 2042.
Commerce argues that the plain language of the amended Thailand Order’s
scope is “not ambiguous and supports Commerce’s determination that dual stenciled
pipe is within the scope of the order,” and therefore the inquiry should stop there.
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Court No. 1:20-cv-133 	Page 27
Def.’s Resp. at 13, ECF No. 37. Because, according to Commerce, the Thailand Order
is unambiguous, “the ‘plain language of the order governs.’” Id. (quoting OMG, 972
F.3d at 1364). It is unclear, however, what language in the order Commerce believes
governs given that Commerce fails to direct the Court to specific language in the scope
that plainly subjects dual-stenciled pipe imported as line pipe to the Thailand Order.
Id. at 13-16.
Wheatland attempts to bolster Commerce’s textual argument by asserting that
“[t]he scope covers all circular welded carbon steel pipes and tubes from Thailand
with an outside diameter of 0.375 inch or more, but not exceeding 16 inches.” See
Def.-Int.’s Resp. at 12, ECF No. 34. Wheatland argues that, because dual-stenciled
pipe 	imported 	as 	line 	pipe 	possesses 	the 	same 	shape 	characteristics 	of 	the
merchandise described in the scope language, dual-stenciled pipe falls under the
scope’s plain language; and no further analysis is necessary. See id. at 14-15.
The problem with the Defendants’ analysis of the text of the scope is that the
Defendants look at the language of only one-third of the scope, isolating the language
about size and diameter from the rest of the text. The scope includes more. The
original scope also lists a set of TSUS item numbers that do not include, as all the
parties agreed, the item numbers under which dual-stenciled pipe would have been
imported in 1986. 	See Tr. of Oral Arg. 6:12-7:3; 7:11-22, ECF No. 51, July 26, 2021
(all parties agreeing that dual-stenciled pipe would have been imported in 1986 under
TSUS item numbers that were expressly excluded from the scope of the original
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Court No. 1:20-cv-133 	Page 28
antidumping order). 	These item numbers, as the amended Thailand Order scope
says, are not dispositive. 	See also Novosteel SA v. U.S., Bethlehem Steel Corp., 284
F.3d 1261, 1270 (Fed. Cir. 2002) (reasoning that absence of particular HTSUS
classification number does not show exclusion of any merchandise); Smith Corona
Corp. v. United States, 915 F.2d 683, 687 (Fed. Cir. 1990) (reasoning that reference
to TSUS classification number is not dispositive); Wirth Ltd. v. United States, 5
F.Supp. 968, 977-78 (Ct. Int’l Trade 1998), aff’d, 185 F.3d 882 (Fed. Cir. 1999) (“The
inclusion 	of 	various 	HTSUS 	headings 	in 	a 	petition 	ordinarily 	should 	not 	be
interpreted to exclude merchandise determined to be within the scope of the
antidumping or countervailing duty orders but classified under an HTSUS heading
not listed in the petition”). 	Though not dispositive, their absence certainly does not
provide evidence that dual-stenciled line pipe’s inclusion is supported by the scope’s
plain language. 6
Reading further past the language convenient for Wheatland’s argument, the
scope also states that the pipes subject to the Thailand Order are “commonly referred
6 Wheatland’s argument that size and shape are the only relevant characteristics for classifying
different kinds of pipes has also been consistently rejected by Commerce and the ITC. For example,
the ITC in 1985 called this approach “somewhat arbitrary” and did not apply it in its injury
determinations, instead taking great care to distinguish between standard and line pipe. J.A. at 1096.
During the scope inquiry that led to this case, Wheatland used this same argument again while
attempting to convince Commerce to apply the Thailand Order not only to dual-stenciled line pipe but
also to mono-stenciled line pipe. 	J.A. at 1004-06. Commerce rejected Wheatland’s argument in its
Final Scope Ruling insofar as mono-stenciled line pipe is concerned, noting as the Court does that
“[t]he historical documents establish that the investigations of both Commerce and the ITC were
limited to standard pipe.” J.A. at 2053. And that “to impose AD duties, Commerce must determine
that the class or kind of merchandise has been found to be sold at less than fair value, and the ITC
must conclude that a domestic industry has been materially injured or threatened with material
injury.” J.A. at 2053-54.
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Court No. 1:20-cv-133 	Page 29
to in the industry as ‘standard pipe.’” J.A. at 2042. Meaning, the scope applies not
simply to circular welded pipes with a given size or shape, but rather circular welded
pipes that meet the industry standards and specifications required for those pipes to
qualify as “standard pipes” and are referred to by the industry as “standard pipes” in
common usage. Id. 	But what exactly is “standard pipe,” and does it include dual-
stenciled pipe? The language of the scope itself is silent. Given this, the Court, like
Commerce, must turn to the (k)(1) materials to resolve the ambiguity. 	Id. at 2047
(expressly determining that it must examine the (k)(1) materials to resolve the
question). The Court, therefore, considers next whether, viewed with the appropriate
deference, the record as a whole supports Commerce’s decision with substantial
evidence.
C. 	The (k)(1) Materials
The (k)(1) materials consist of ‘‘[t]he descriptions of the merchandise contained
in the petition, the initial investigation, and the determinations of the Secretary
(including 	prior 	scope 	determinations) 	and 	the 	Commission.’’ 	19 	C.F.R. 	§
351.225(k)(1). Saha argues that these materials do not support Commerce’s decision
to include dual-stenciled pipe imported as line pipe within the scope of the Thailand
Order but rather lead to the opposite conclusion. See Pl.’s Mot. at 16-26, ECF No. 26.
Saha supports its argument by noting that Thailand did not produce dual-stenciled
pipe 	at 	the 	time 	of 	the 	order, 	that 	the 	original 	petitioners 	withdrew 	from
consideration products imported under TSUS item numbers 610.3208 and 3209, and
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that the ITC never made a legally required injury determination for imported Thai
produced dual-stenciled pipe. See id. at 26. Saha also directs the Court’s attention to
the various sunset reviews and argues that these reviews consistently treat dual-
stenciled pipe as line pipe. See id. at 32-34.
Commerce and Wheatland respond that the amended petition itself does not
exclude dual-stenciled pipe in its language; therefore, dual-stenciled pipe is not
excluded from the scope. See Def.’s Resp. at 20, ECF No. 37; Def.-Int.’s Resp. at 12,
ECF No. 34. They also argue that the original ITC investigation only excluded line
pipe and did not expressly exclude dual-stenciled pipe that receives both an ASTM
standard pipe stencil and an API line pipe stencil so that any pipe with an ASTM
stencil would fall within the ITC’s injury determination. See Def.’s Resp. at 16, ECF
No. 37. Finally, they assert that, when the sunset reviews emphasized that the
antidumping orders under review excluded dual-stenciled pipe, “the Commission’s
statement was not addressing the language of each individual order but rather
providing a generalized statement ‘applicable to the majority of the orders, which
contained explicit exclusions for dual-stenciled pipe.’” See Def.-Int.’s Resp. at 18, ECF
No. 34 (quoting Final Scope Ruling at 15).
Without 	going 	deeply 	into 	the 	(k)(1) 	materials, 	one 	finds 	the 	following
definition: “Standard pipe is [pipe that is] manufactured to American Society of
Testing and Materials (ASTM) specifications.” Certain Welded Carbon Steel Pipes
and 	Tubes 	from 	Thailand 	and 	Venezuela, 	USITC 	Pub. 	1680 	at 	7-8 	(internal
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Court No. 1:20-cv-133 	Page 31
references omitted). 	With this aid, the meaning of the scope becomes clearer: 	The
products subject to the Thailand Order as described by its scope consist of circular
welded pipes with a specific range of diameters, any wall thickness, the production
and metal quality of what are commonly called “standard pipes,” and that obtain an
American Society of Testing and Materials stencil. See id.
Even this explanation of the Thailand Order’s scope raises one final question:
Does “standard pipe” refer only to mono-stenciled standard pipe, or does it also
include dual-stenciled pipe – pipe that meets both the minimum specifications
demanded by the American Society of Testing and Materials for standard pipe and
has the higher quality steel and has passed the more stringent tests required to
receive an American Petroleum Institute line pipe stencil? That the scope raises this
question and does not answer it means that there is an ambiguity that must be
resolved, and thus a much deeper evaluation of the (k)(1) materials is necessary to
understand the boundaries of the scope. After reviewing the (k)(1) materials, the
Court finds that the original petition, the injury determination, and the sunset
reviews do not support Commerce’s final scope ruling on the Thailand Order with
substantial evidence. They instead reflect that Commerce has unlawfully expanded
the scope of its original order.
i. 	Initial Investigation and Injury Determination
In their first petition in 1985, the initial petitioners requested an investigation
of pipe imported from Thailand under a variety of item numbers found in the Tariff
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Schedules of the United States at the time, including item numbers 610.3208 and
3209. See J.A. at 1706. Dual-stenciled pipe imported as line pipe would have been
imported under these numbers at the time of the original Thailand Order. See TSUSA
1985 Version; see also Tr. of Oral Arg. 7:11-22, ECF No. 51, July 26, 2021. But after
Commerce sent an inquiry asking for evidence that Thailand produced such pipes,
the initial petitioners decided to expressly withdraw their “petitions insofar as they
concern line pipe, TSUS numbers 610.3208 and 3209.” Letter Dated March 14, 1985,
from Petitioner Regarding Partial Withdrawal of Petition, J.A. at 1781-82.
Once the initial petitioners withdrew all pipes that were importable under
610.3208 and 3209 from consideration by the ITC and Commerce, those pipes were
not included in either the resulting injury investigation conducted by the ITC or the
antidumping order issued by Commerce. 	See Letter Dated March 14, 1985, from
Petitioner Regarding Partial Withdrawal of Petition, J.A. at 1781-82 (letter from
petitioners withdrawing from their “petitions insofar as they concern line pipe, TSUS
numbers 610.3208 and 3209”). Consequently, the ITC has never conducted an injury
investigation, nor made an injury determination, on pipes imported from Thailand
that are dual-stenciled, or obtain an API stencil, regardless of whether those pipes
also have an ASTM stencil.
Commerce cannot impose a duty on a fiction. API stenciled pipes, i.e. line and
dual-stenciled pipes, were omitted by the decision of the petitioners themselves from
the ITC’s original injury investigation. The parties have also admitted that Thailand
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did not produce line pipes, dual-stenciled or otherwise, at the time the ITC conducted
its injury investigation. Tr. of Oral Arg. 6:12-16, 7:1-3, ECF No. 51, July 26, 2021. It
is well settled that Commerce cannot “assess antidumping duties on products
intentionally omitted from the ITC’s injury investigation.” Wheatland Tube Co., 161
F.3d 	at 	1371. 	Allowing 	Commerce 	to 	assess 	such 	duties 	without 	an 	injury
determination “would itself frustrate the purpose of the antidumping laws.” Id. And
finding that the ITC determined a product that did not yet exist somehow injured
domestic industry would frustrate common sense.
Since their initial omission from the original injury investigation, the ITC has
conducted no subsequent injury investigation to determine whether API stenciled
pipe from Thailand injures a domestic industry. 	Given that it is “a fundamental
requirement” in our law “that an antidumping duty order must be supported by an
ITC determination of material injury covering the merchandise in question,” the lack
of such an injury determination for API stenciled pipes is fatal to Commerce’s case.
See Wheatland Tube Co., 973 F. Supp. at 158, aff'd, 161 F.3d 1365 (Fed. Cir. 1998).
It is worthwhile to note that, when the ITC conducted its injury investigation
of 	domestic 	industries 	affected 	by 	pipes 	imported 	from 	Thailand, 	the 	ITC’s
preliminary report on the subject addressed the injury caused to domestic industries
by not only standard pipes imported from Thailand but also the injury caused by
imported standard and line pipes from Venezuela. See Certain Welded Carbon Steel
Pipes and Tubes from Thailand and Venezuela, Inv. Nos. 701-TA-242 and 731-TA-
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252 and 253 (Preliminary), USITC Pub. 1680 (April 1985). In that report, the ITC
emphasized that imported standard pipe and line pipe affect separate industries and
are different products. At every point, it was careful to not conflate line pipe and
standard pipe when discussing imports from Thailand. See id. at 7-8.
The same holds true for the ITC Final Determination. J.A. at 1221. 	The ITC
did not include line pipe or dual-stenciled pipe imported as line pipe within the
description of the investigation’s scope into Thailand circular welded pipes. See
Circular Welded Carbon Steel Pipes and Tubes from Thailand; Final Determination
of Sales at Less Than Fair Value, 51 Fed. Reg. 8384 (Jan. 27, 1986). 	The only
discussion of line pipe appears in the sections of the report addressing Turkish
imports, and the Commissioners were cautious even in their section headings to use
“line pipe” only in conjunction with Turkey. See, e.g., ITC Final Determination, J.A.
at 1244-45 (differentiating among “standard pipe imports from Thailand,” “standard
pipe imports from Turkey,” and “line pipe imports from Turkey”).
Most notably, the only conflation of standard pipe and line pipe came from the
two Commissioners in dissent. 	Id. at 1263-83 (dissenting views of Vice Chairman
Liebeler and Commissioner Brunsdale). 	Commissioner Brunsdale thought that the
Commission should not separate its analysis of standard pipes and line pipes but
should instead consider them as one product to be analyzed together. 7 	Id. at 1281.
7 Interestingly, the dissent found that, if viewed as one product instead of two, there would be no harm
to domestic producers. Thus, the dissent wished to conflate line pipe and standard pipe to block the
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That this view was in dissent further points to the lack of evidence of any harm
finding from the ITC regarding the importation of line pipe, including dual-stenciled
line pipe, from Thailand. With no harm determination from the ITC, Commerce lacks
legal authority to impose duties on dual-stenciled pipe. See Wheatland Tube Co., 161
F.3d at 1371.
ii. 	Sunset Reviews
Although a finding that the ITC’s injury determination did not cover dual-
stenciled pipe is sufficient to overturn Commerce’s scope determination, the ITC’s
sunset reviews reinforce the Court’s finding that dual-stenciled, or API stenciled pipe
of any kind, was not included in the Thailand Order’s scope. See Quiedan Co., 294
F.Supp.3d 1345, 1351-53 (including sunset reviews among the (k)(1) materials), aff’d,
927 F.3d 1328 (Fed. Cir. 2019). 	Every sunset review of the Thailand Order treats
dual-stenciled pipe as line pipe. 	For example, the first two sunset reviews did not
find that dual-stenciled pipe imported from any country affected the domestic
standard pipe industry. See First Sunset Review (makes no findings as to whether
dual-stenciled pipe imported as line pipe affects the domestic standard pipe industry);
see also Second Sunset Review at 13 n.66. Additionally, when the first two sunset
reviews discussed duties on dual-stenciled pipe from countries that produced it at the
time, it was solely in the context of President Clinton’s safeguard duties on line pipe.
imposition of tariffs on either type of pipe. ITC Final Determination, J.A. 1281. Nearly forty years
later, Commerce wants to conflate the two types of pipe to achieve the exact opposite result.
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The ITC consistently understood those duties to apply to dual-stenciled pipe, not just
mono-stenciled line pipe, and not to apply to standard pipe. 	First Sunset Review at
28 (“In the case of Korea…until safeguard duties on line pipe went into effect on
March 1, 2000, they enjoyed unlimited access to the U.S. CWP market by exporting
dual-stenciled line pipe”); Second Sunset Review at Overview-5 n.1 (“Following an
affirmative determination by the Commission, in March 2000, President Clinton
issued Proclamation 7274, imposing additional duties of 19 percent on line pipe
imports of more than 9,000 short tons annually (including “dual-stenciled” pipe but
excluding “arctic grade” line pipe).”). 	If dual-stenciled pipe is standard pipe and is
only excluded from antidumping orders on standard pipe when it is expressly
excluded in the language of those orders’ scopes, then dual-stenciled pipe would have
fallen under neither the antidumping orders that excluded it nor the safeguard duties
imposed by President Clinton that covered line pipe. But dual-stenciled pipe was
treated as falling under the safeguard duties imposed by President Clinton, even
though the proclamation only mentions “line pipe.” Id.
The Second Sunset Review also expressly rejected the argument that dual or
multiple-stenciled pipe affected the same industry as standard pipe. 	The review
found that “multiple-stenciled line pipe requires additional steel than CWP to meet
American Petroleum Institute (API) specifications applicable to line pipe. At [then]
current steel prices, this would require that a multiple-stenciled product be sold at a
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considerable price premium over a product that satisfies ASTM specifications but not
API specifications.” Second Sunset Review at 13 n.66.
Consistent with the first two sunset reviews, the Third and Fourth Sunset
Reviews also treat dual-stenciled pipe as line pipe. The Fourth Sunset Review states
in its scope that “[d]ual-stenciled pipe, which enters as line pipe under a different
subheading of the Harmonized Tariff Schedule of the United States (“HTS”) for U.S.
customs purposes, is not within the scope of the orders.” Fourth Sunset Review at 6-
7. The Third Sunset Review’s language is largely identical. See Third Sunset Review
at 8. Both statements are unqualified and give no indication that the scope language
does not apply to the Thailand Order. Commerce’s argument that the language in
these sunset reviews only applied to dual-stenciled pipe imported from every country
other than Thailand is not persuasive. The language of the third and fourth reviews
is unqualified and consistent with the treatment of dual-stenciled pipe, or API
stenciled pipe, at each stage of the administrative process. Cf., e.g., ITC Final
Determination at J.A. 1233-34 (differentiating among “standard pipe imports from
Thailand,” “standard pipe imports from Turkey,” and “line pipe imports from
Turkey”).
No review, original or sunset, has determined that dual-stenciled or API
stenciled pipe from Thailand injures a domestic industry. Given that when a
“domestic industry is not injured, it cannot avail itself of the relief accorded under
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the antidumping statute,” Commerce’s expansion of the Thailand Order’s scope is
unlawful. 	Badger-Powhatan, 608 F. Supp. at 657.
iii. 	The Defendants’ Letters to the Court
In response to an invitation extended at oral argument, the Government and
Wheatland did provide isolated examples of dual-stenciled pipe being referred to as
standard pipe within the record. 	But these quotes came from documents that the
Government 	and 	Wheatland 	themselves 	argue 	are 	irrelevant 	and 	not 	(k)(1)
materials. See Def.’s Resp. at 18-20, ECF No. 37; and Def.-Int.’s Resp. at 21, ECF No.
34. The Court agrees with the Defendants.
The (k)(1) materials consist of ‘‘[t]he descriptions of the merchandise contained
in the petition, the initial investigation, and the determinations of the Secretary
(including 	prior 	scope 	determinations) 	and 	the 	Commission.’’). 	19 	C.F.R. 	§
351.225(k)(1). The interpretive canon noscitur a sociis is relevant here. This canon
holds that “words grouped in a list should be given related meanings.” 	Third Nat’l
Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977). The regulation 19 C.F.R.
§ 351.225(k)(1) first lists among the (k)(1) materials “the petition,” and “the initial
investigation.” (emphasis added). This indicates that the relevant petition and initial
investigation are the ones related to the antidumping order at hand, in this case the
Thailand Order. The identical use of the definitive article for “the determinations by
the Secretary . . . and the Commission” in 19 C.F.R. § 351.225(k)(1) indicates that the
references to the determinations by the Secretary and Commission are references to
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determinations that resulted from “the petition” and “the initial investigation.” 	In
this case, that is the Thailand Order. Thus, the Government and Wheatland’s appeal
to language in other countries’ orders is unavailing.
Even were one to consider the language proffered by the Government and
Wheatland, 	it 	remains 	true 	that, 	after 	an 	exhaustive 	search 	and 	a 	further
opportunity provided by the Court, neither has found a single instance of dual-
stenciled pipe being referenced as “standard pipe” throughout the entire history of
the Thailand Order and the sunset reviews of that order. 	That fact damns the
strongest. 	From 1985 until 2020, there is no record evidence of dual-stenciled pipe
being considered as standard pipe for purposes of the Thailand Order. Evidence from
other proceedings should not overrule the consistent import of the record of the order
actually at issue. 	Here, the absence of evidence is indeed evidence of absence.
Substantial 	evidence 	does 	not 	support 	the 	Commerce 	Department’s 	scope
determination. See 19 U.S.C. § 1516a(b)(1)(B)(i) (requiring the Court to “hold
unlawful any determination” that is “unsupported by substantial evidence on the
record, or otherwise not in accordance with law”); see also Universal Camera Corp.,
340 U.S. at 488 (“The substantiality of evidence must take into account whatever in
the record fairly detracts from its weight.”).
CONCLUSION
The Court finds that Commerce’s determination is both unsupported by
substantial 	evidence 	and 	not 	issued 	in 	accordance 	with 	the 	law. 	No 	Thai
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manufacturer produced dual-stenciled pipe imported as line pipe at the time of the
order; therefore, dual-stenciled pipe could not have been included within the scope.
Tr. of Oral Arg. 5:24-25, 6:12-16, 7:1-3, ECF No. 51, July 26, 2021. 	The initial
petitioners expressly withdrew from Commerce and the ITC’s consideration the item
numbers under which dual-stenciled pipe would have been imported. 	Letter Dated
March 14, 1985, from Petitioner Regarding Partial Withdrawal of Petition, J.A. at
1781-82. 	There has been no injury determination as required by 19 U.S.C. § 1673
and case law. 	See Badger-Powhatan, 608 F. Supp. at 657 (“Where the domestic
industry is not injured, it cannot avail itself of the relief accorded under the
antidumping statute”). The ITC has not included dual-stenciled pipe imported as line
pipe in any injury determination concerning pipe imported from Thailand. And for
nearly four decades, the ITC has treated dual-stenciled pipe as line pipe and has
noted in the relevant sunset reviews the exclusion of dual-stenciled pipe imported as
line pipe from the scope of the orders imposing duties on standard pipes.
For the foregoing reasons, this matter is remanded for Commerce to conduct
an analysis that considers the sources listed in 19 C.F.R. § 351.225(k)(1) in assessing
whether dual-stenciled pipe falls within the scope of the Thailand Order, and it shall
do so in compliance with the reasoning in this Opinion and Order. Commerce may
not assess tariffs on any item absent an injury determination from the ITC. 	This
Opinion and Order in no way disturbs Commerce’s finding that mono-stenciled line
pipe is outside the scope of the Thailand Order.
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Thus, on consideration of the Plaintiff’s Motion for Judgment on the Agency
Record and all papers and proceedings had in relation to this matter, and on due
deliberation, it is hereby:
ORDERED that Plaintiff's motion for judgment on the agency record is
GRANTED;
ORDERED that Commerce, within 90 days from the date of issuance of this
Opinion and Order, shall submit a Remand Redetermination in compliance with this
Opinion and Order;
ORDERED that Defendant shall supplement the administrative record with
all documents considered by Commerce in reaching its decision in the Remand
Redetermination;
ORDERED that Plaintiff shall have 30 days from the filing of the Remand
Redetermination to submit comments to the Court; and
ORDERED that Defendant and Defendant-Intervenor shall have 15 days
from the date of Plaintiff's filing of comments to submit a reply.
/s/ 	Stephen Alexander Vaden
Stephen Alexander Vaden, Judge
Dated: 2FWREHU
New York, New York
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