Commerce Had No Choice but to Exclude Flanges From AD Order Based on CIT's Orders, US Says
The Commerce Department excluded importer Star Pipe Products' 11 ductile iron flanges from the antidumping duty order on cast iron pipe fittings because the Court of International Trade left no alternative, Commerce said in a Feb. 7 brief. Responding to U.S. producer ASC Engineered Solutions arguments in a reply brief at CIT, Commerce said that even though the court initially agreed that the plain scope language included Star Pipe's flanges in the AD order, it said this was insufficient to include the flanges (Star Pipe Products v. United States, CIT #17-00236).
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Originally, Commerce said that the flanges were in scope, using the scope language and the (k)(1) materials to make the ruling. The agency relied on the original petition of the AD order and an exclusion for "ductile cast iron fittings with mechanical joint ends (MJ), or push on ends (PO), or flanged ends and produced to the American Water Works Association (AWWA) specifications AWWA C110 or AWWA C153." Commerce said this didn't apply to Star Pipe's AWWA C115 flanges, citing the original petition. But the court ruled that the original petition never proposed an exclusion for products made to AWWA standards (see 2108270034). On remand, Commerce excluded Star Pipe's flanges from the AD order (see 2112220028).
Both ASC and Star Pipe contested the reversal. Star Pipe said that, among other things, Commerce improperly found the importer's flanges are pipe fittings with the same physical characteristics as the fittings laid out in the scope. Commerce replied that this position "incorrectly conflates" two different issues: whether a flange can be considered a pipe fitting and whether a pipe fitting meets the additional scope criteria to be a fitting covered by the order. The trade court held that Commerce reasonably found that the petitioners considered flanges to be pipe fittings and that interpreting "pipe fittings" in the scope language as encompassing flanges isn't unreasonable, Commerce pointed out.
Star Pipe further argued that the "use" language appearing in the original petition but removed before the start of the investigation supports the finding that the scope excludes products made to standards for the water-works industry. Commerce said there was no use language before the start of the investigation. "Commerce also found, however, that the Court had held that the petition and ITC report indicate that pipe fittings produced for waterworks are excluded from the scope and, under respectful protest, Commerce implemented the Court’s holding," the brief said.