Case: 22-1175 Document: 37 Page: 1 Filed: 12/04/2023
United States Court of Appeals
for the Federal Circuit
______________________
SAHA THAI STEEL PIPE PUBLIC COMPANY
LIMITED, THAI PREMIUM PIPE COMPANY LTD.,
Plaintiffs-Appellees
PACIFIC PIPE PUBLIC COMPANY LIMITED,
Plaintiff
v.
UNITED STATES,
Defendant
WHEATLAND TUBE COMPANY,
Defendant-Appellant
______________________
2022-1175
______________________
Appeal from the United States Court of International
Trade in Nos. 1:18-cv-00214-JCG, 1:18-cv-00219-JCG,
1:18-cv-00231-JCG, Judge Jennifer Choe-Groves.
______________________
Decided: December 4, 2023
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-appellee
Saha Thai Steel Pipe Public Company Limited. Also repre-
sented by JAMES BEATY, DANIEL L. PORTER.
Case: 22-1175 Document: 37 Page: 2 Filed: 12/04/2023
2 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US
ROBERT GOSSELINK, Trade Pacific PLLC, Washington,
DC, for plaintiff-appellee Thai Premium Pipe Company
Ltd.
ELIZABETH DRAKE, Schagrin Associates, Washington,
DC, argued for defendant-appellant. Also represented by
MICHELLE ROSE AVRUTIN, CHRISTOPHER CLOUTIER,
WILLIAM ALFRED FENNELL, JEFFREY DAVID GERRISH, LUKE
A. MEISNER, ROGER BRIAN SCHAGRIN.
______________________
Before HUGHES, LINN, and STARK, Circuit Judges.
HUGHES, Circuit Judge.
Defendant-Appellant Wheatland Tube Company ap-
peals a decision from the Court of International Trade af-
firming a second remand determination by the Department
of Commerce calculating certain anti-dumping margins for
certain welded carbon steel pipes without any particular
market situation adjustments. 1 Because the Court of Inter-
national Trade properly determined that the agency was
not allowed to make a particular market situation adjust-
ment to the cost of production when determining anti-
dumping margins, we affirm the trial court’s decision to
sustain the agency’s second remand results.
I
A
Under the Tariff Act of 1930, as amended, Com-
merce conducts antidumping duty investigations to deter-
mine whether goods are being sold at less-than-fair value.
See
19 U.S.C. § 1673. For this analysis, the agency com-
pares the price at which the merchandise is sold in the
1 The Department of Commerce did not participate
in this appeal.
Case: 22-1175 Document: 37 Page: 3 Filed: 12/04/2023
SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 3
United States (export price) to a “normal value” bench-
mark. Export price is defined as the price at which the mer-
chandise is first sold in the United States. See
id.
§ 1677a(a).
The objective when calculating normal value is to find
a value that provides a fair comparison to the export price.
Id. § 1677b(a). By default, the agency uses the price at
which the merchandise is sold for consumption in the ex-
porting country. See id. § 1677b(a)(1)(B)(i). The price used
is the price “in the ordinary course of trade.” Id. Section
1677(15), as amended by the Trade Preferences Extension
Act of 2015 (TPEA), defines the “ordinary course of trade”
as excluding (A) sales in the exporting country that are
made at prices below the cost of production (“sales below
cost”), (B) certain sales between affiliates, and (C) “[s]itua-
tions in which . . . the particular market situation prevents
a proper comparison with the export price or constructed
export price.” Id. § 1677(15).
Sales below cost are excluded from the normal value,
and only “the remaining sales of the foreign like product in
the ordinary course of trade” are used. § 1677b(b)(1)(B). To
determine whether a sale is below cost, the cost of produc-
tion is calculated according to § 1677b(b)(3) and includes
“the cost of [materials, fabrication, and processing of] the
foreign like product, during a period which would ordinar-
ily permit the production of that foreign like product in the
ordinary course of business.” § 1677b(b)(3)(A). Sec-
tion 1677b(f) also governs the calculation of the cost of pro-
duction, requiring that “[c]osts shall normally be calculated
based on the records of the exporter or producer of the mer-
chandise, if such records . . . reasonably reflect the costs as-
sociated with the production and sale of the merchandise.”
§ 1677b(f)(1)(A).
If the agency cannot determine the normal value of the
subject merchandise based on price, then § 1677b(e) au-
thorizes the agency to calculate a constructed value based
Case: 22-1175 Document: 37 Page: 4 Filed: 12/04/2023
4 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US
on costs. TPEA amendments allow the agency to consider
a particular market situation (PMS) affecting costs when
doing so:
[I]f a particular market situation exists such
that the cost of materials and fabrication or
other processing of any kind does not accu-
rately reflect the cost of production in the or-
dinary course of trade, the administering
authority may use another calculation meth-
odology under this part or any other calcula-
tion methodology.
§ 1677b(e)(3). However, as we held in Hyundai Steel Co. v.
United States,
19 F.4th 1346, 1352–55 (Fed. Cir. 2021), the
TPEA amendment to § 1677b(e), which deals with calculat-
ing constructed value, does not automatically carry over to
§ 1677b(b), which deals with calculating the cost of produc-
tion. Thus, our binding case law establishes that the
agency cannot use PMS adjustments for cost of production
calculations under the statutory framework.
B
Wheatland Tube Company is a domestic producer of
various steel pipes. During the 2018 administrative review
of imports of circular welded carbon steel pipes (CWPs)
from Thailand, Wheatland intervened and alleged that
there was a PMS in Thailand that distorted the costs of hot
rolled steel coil. Hot rolled steel coil accounts for roughly
80% of the cost of production of CWPs, since the coils are
used to make the pipes.
In the underlying antidumping review of CWPs, the
agency initially found that respondents Saha Thai Steel
and Thai Premium Pipe’s costs of production were dis-
torted by the PMS caused by the hot rolled steel coil costs,
which prevented the proper comparison of the normal
value with export price or constructed value. Then, the
Case: 22-1175 Document: 37 Page: 5 Filed: 12/04/2023
SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 5
agency determined that it had the authority under the
TPEA to account for the PMS in its cost analysis and made
upward adjustments to the costs of production for each of
the Thai steel companies in this review. This later im-
pacted the antidumping duty rates assigned to each com-
pany. The trial court disagreed, finding that Congress
intended for PMS adjustments to be available only for cal-
culations of constructed value and not for calculations of
costs of production. In so finding, the trial court relied on
our decision in Hyundai Steel, where we held that the
agency could not use PMS adjustments in calculating costs
of production. The trial court remanded to the agency to
revise its calculations and analysis in accordance with the
relevant statutes.
In its first remand determination, the agency contin-
ued to find that “a PMS exist[ed] in Thailand that dis-
tort[ed] the price of hot rolled coil.” J.A. 13. The agency
then disagreed with the trial court’s finding and continued
to use a PMS adjustment when calculating the cost of pro-
duction, determining that the PMS caused home market
sale prices to be outside the ordinary course of trade. J.A.
20. The agency also concluded that the existence of a PMS
prevented the proper comparison of normal value based on
home market prices with export prices or constructed ex-
port prices, and then based the normal value on con-
structed value. J.A. 20–21.
After the first remand determination, the trial court
again found that “Commerce did not follow the statutory
framework in this case,” and again remanded to the agency
to remove the cost-based PMS determination and recalcu-
late the weighted-average dumping margins without a
PMS adjustment. J.A. 51. Under protest, in its second re-
mand determination, the agency recalculated the dumping
margins without making any PMS adjustments. The CIT
upheld this second remand determination.
Case: 22-1175 Document: 37 Page: 6 Filed: 12/04/2023
6 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US
On appeal, Wheatland seeks to reinstate the agency’s
first remand determination, where the agency used a PMS
adjustment to calculate the cost of production. We have ju-
risdiction under
28 U.S.C. § 1295(a)(5).
II
“We review a decision of the Court of International
Trade evaluating an antidumping determination by Com-
merce by reapplying the statutory standard of review that
the Court of International Trade applied in reviewing the
administrative record. We will uphold Commerce’s deter-
mination unless it is unsupported by substantial evidence
on the record or otherwise not in accordance with the law.”
Peer Bearing Co.-Changshan v. United States,
766 F.3d
1396, 1399 (Fed. Cir. 2014) (citation omitted); 19 U.S.C.
§ 1516a(b)(1)(B)(i).
III
Wheatland argues that this case can be distinguished
from Hyundai Steel because in that case, we said that 19
U.S.C. § 1677b(a)(1) “specifically gives Commerce the tools
to ensure a proper comparison with the export price.” 19
F.4th at 1355 (internal quotations omitted). Wheatland
further argues that the agency relied on one of the sub-sec-
tions of § 1677b(a)(1) to adjust the cost of production up-
ward to account for a PMS by framing it as a constructed
value calculation. Appellant’s Br. 26. We are not per-
suaded.
Wheatland ignores the actual holding of Hyundai Steel,
where we explicitly stated that the amendment authoriz-
ing PMS adjustments for constructed value calculations
was not added to the section of the statute addressing cost
of production calculations. 19 F.4th at 1352–53. We thus
found that Congress did not intend to authorize the agency
to incorporate PMS adjustments for cost of production
Case: 22-1175 Document: 37 Page: 7 Filed: 12/04/2023
SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 7
calculations. We also explained that “[i]n enacting the
TPEA, Congress did not leave a gap for Commerce to fill
with regard to adjusting the costs of production. Rather,
Congress simply and unambiguously allowed for a PMS ad-
justment to constructed value but not to the costs of pro-
duction for purposes of the sales-below-cost test.” Id. at
1354.
Hyundai Steel is indistinguishable from this case and
is controlling. That the agency presented its cost of produc-
tion calculation as a constructed value calculation—by us-
ing the phrase “ordinary course of trade” to explain why it
incorporated a PMS adjustment—does not change the fact
that the statute simply does not authorize PMS adjust-
ments to cost of production calculations. The agency cannot
use constructed value language found in § 1677b(e) as a
backdoor to slip in a PMS adjustment for cost of production
calculations. The trial court correctly found that the
agency’s second remand determination—removing all PMS
adjustments from the cost of production calculation—was
consistent with the statutory framework. We thus affirm.
IV
We have considered the rest of Wheatland’s arguments
and find them unpersuasive. We therefore affirm the Court
of International Trade’s decision sustaining the agency’s
second remand determination, which calculated cost of pro-
duction without any PMS adjustments.
AFFIRMED
