Case: 22-2181 Document: 42 Page: 1 Filed: 05/15/2024

United States Court of Appeals for the Federal Circuit ______________________

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED, Plaintiff-Appellee

v.

UNITED STATES, Defendant

WHEATLAND TUBE COMPANY, Defendant-Appellant ______________________

2022-2181 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-00133-SAV, Judge Stephen A. Vaden. ______________________

Decided: May 15, 2024 ______________________

JAMES P. DURLING, Curtis, Mallet-Prevost, Colt & Mosle LLP, Washington, DC, argued for plaintiff-appellee. Also represented by JAMES BEATY, DANIEL L. PORTER.

CHRISTOPHER CLOUTIER, Schagrin Associates, Wash- ington, DC, argued for defendant-appellant. Also repre- sented by MICHELLE ROSE AVRUTIN, NICHOLAS J. BIRCH, ELIZABETH DRAKE, WILLIAM ALFRED FENNELL, JEFFREY DAVID GERRISH, LUKE A. MEISNER, ROGER BRIAN SCHAGRIN. Case: 22-2181 Document: 42 Page: 2 Filed: 05/15/2024

2 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

______________________

Before LOURIE, REYNA, and CHEN, Circuit Judges. Opinion for the court filed by Circuit Judge REYNA. Dissenting opinion filed by Circuit Judge CHEN. REYNA, Circuit Judge. Wheatland Tube Company appeals a decision of the U.S. Court of International Trade, which affirmed the U.S. Department of Commerce’s remand determination as to the scope of an antidumping duty order concerning certain steel pipes imported from Thailand. For the following rea- sons, we reverse. BACKGROUND This appeal concerns whether certain imports of steel pipes from Thailand fall within the scope of an existing an- tidumping duty order. As background, we provide a brief overview of the antidumping duty framework and the ini- tial, underlying antidumping duty investigation, before turning to the scope of the order at issue. The U.S. trade statutes generally provide that an in- terested party may petition the U.S. Department of Com- merce (“Commerce”) and the U.S. International Trade Commission (“ITC”) to initiate antidumping duty investi- gations and, if the investigations result in affirmative de- terminations, impose antidumping duties on the particular imported merchandise that was subject to the investiga- tions. 19 U.S.C. §§ 1673, 1 1673a(b). Commerce’s role in an antidumping investigation is to determine whether the

1 Section 731 of the Tariff Act of 1930, codified in 19 U.S.C. § 1673, sets forth the general framework for the im- position of antidumping duties. Case: 22-2181 Document: 42 Page: 3 Filed: 05/15/2024

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merchandise subject to the investigation (subject merchan- dise) is being, or likely to be, sold in the United States at less-than-fair-value (“LTFV”), an unfair trade practice commonly referred to as dumping. Id. §§ 1673, 1673b(b)(1)(A). Concurrently, the ITC investigates whether a U.S. domestic industry producing like or similar merchandise as those under Commerce’s investigation is materially injured, or threatened with material injury, by virtue of the dumped imports. Id. §§ 1673, 1673b(a)(1)(A). If Commerce’s and the ITC’s investigations both lead to af- firmative final determinations, namely Commerce’s final LTFV determination and the ITC’s final determination of material injury or threat of material injury, Commerce is- sues an antidumping duty order imposing antidumping du- ties on the imports of the subject merchandise. Id. §§ 1673, 1673d(c)(2). An antidumping duty order describes the specific mer- chandise subject to the order and antidumping duties. This description is paramount. Given the realities in the mar- ketplace and everchanging varieties of merchandise, ques- tions frequently arise as to whether a particular product is subject to or falls within the scope of an antidumping duty order. 19 C.F.R. § 351.225(a). Consequently, U.S. trade law provides that an interested party may request that Commerce issue a scope ruling to clarify whether a partic- ular product falls within the scope of the order. Id. This appeal involves such a ruling. I. The Initial Antidumping Duty Investigation In February 1985, a coalition of domestic manufactur- ers of steel pipes, including Appellant Wheatland Tube Company (“Wheatland”), petitioned Commerce and the ITC to initiate antidumping duty investigations on certain circular welded carbon steel pipes and tubes (“CWP”) im- ported from Thailand. Petition for the Imposition of Anti- dumping Duties[:] Certain Welded Carbon Steel Circular Pipes and Tubes from Thailand (Feb. 28, 1985), Case: 22-2181 Document: 42 Page: 4 Filed: 05/15/2024

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J.A. 40519–56. 2 The petition identified Thai manufactur- ers producing the imported pipes, including Appellee Saha Thai Steel Pipe Public Company Limited (“Saha”). J.A. 40563. In the original February 1985 petition, as required un- der the regulations, the petitioners provided a detailed de- scription of goods the petitioners believed should be investigated, including their technical characteristics, uses, and tariff classifications. J.A. 40536–39. Specifically, the petition asserted that the subject merchandise was “certain circular welded carbon steel circular pipes and tubes, .375 inch or more but not over 16 inches in outside diameter.” J.A. 40536. The petition continued to state, The product includes “standard pipe,” which is a general-purpose commodity used in such applica- tions as plumbing pipe, sprinkler systems and fence posts and is commonly referred to in the in- dustry as a standard pipe. . . . (These products are generally produced to [the American Society for Testing & Materials (“ASTM”)] specifications A- 120, A-53, or A-135.) The product also includes “line pipe,” which is produced to [the American Pe- troleum Institute (“API”)] specifications for line pipe, API-5L or API5X. 3 . . . Small diameter pipes with a wall thickness greater than .065 inch are now classified [under the

2 Typically, petitioners requesting the initiation of an antidumping duty investigation simultaneously request the initiation of a countervailing duty investigation, as was the case here. See, e.g., J.A. 40519. This appeal is limited to the scope of the antidumping duty order resulting from the antidumping duty investigation. 3 As noted infra, ASTM and API are both industry standards organizations in the steel industry. Case: 22-2181 Document: 42 Page: 5 Filed: 05/15/2024

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Tariff Schedules of the United States Annotated (“TSUSA”)] in 610.3208, 610.3209, 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, and 610.3258. Circular pipe with a wall thickness less than .065 inch is now classified in 610.4925. J.A. 40536–37 (emphasis added). According to the petition, the subject merchandise was produced using the same pro- cess worldwide, and the finished products were identical. J.A. 40538–39; see also J.A. 40537–38 (quoting description of the manufacturing process the ITC formulated in previ- ous CWP investigations). The petition described the U.S. domestic industry pro- ducing the subject merchandise as consisting of U.S. pro- ducers of both standard pipes and line pipes. J.A. 40545– 46. Most domestic producers, according to the petition, produced both standard and line pipes using the same equipment. Id. In March 1985, the petitioners partially withdrew their petition “insofar as they concern line pipe, TSUS numbers 610.3208 and 3209.” 4 J.A. 40612 (emphasis added). Ac- cording to the petitioners, they had ascertained that no Thai company was licensed at that time to produce steel pipes to API specifications. Id. Despite the partial with- drawal, the petitioners maintained that “the appropriate domestic industry for injury determination purposes [was] the industry producing [both] standard and line pipe[s].” J.A. 40613. Commerce and the ITC initiated and conducted their respective investigations. See Certain Circular Welded Carbon Steel Pipes and Tubes from Thailand; Initiation of

4 Relevant here, under the TSUSA (1985), line pipes conforming to API specifications would be classified under items 610.3208 and 3209. See J.A. 40212. Case: 22-2181 Document: 42 Page: 6 Filed: 05/15/2024

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Antidumping Duty Investigation, 50 Fed. Reg. 12068, 12608 (Mar. 27, 1985) (“Commerce Initiation Notice”); Cer- tain Welded Carbon Steel Pipes and Tubes from Thailand and Venezuela, 50 Fed. Reg. 10866, 10866 (Mar. 18, 1985). Commerce’s LTFV investigation reached an affirmative preliminary determination in September 1985, and an af- firmative final determination in January 1986. Certain Circular Welded Carbon Steel Pipes and Tubes from Thai- land; Preliminary Determination of Sales at Less Than Fair Value, 50 Fed. Reg. 40427, 40428 (Oct. 3, 1985); Anti- dumping: Circular Welded Carbon Steel Pipes and Tubes from Thailand; Final Determination of Sales at Less Than Fair Value, 51 Fed. Reg. 3384, 3384 (Jan. 27, 1986) (“Final LTFV Determination”). In the Final LTFV Determination, Commerce described the subject merchandise under its in- vestigation 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 out- side 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. Final LTFV Determination, 51 Fed. Reg. at 3384. Com- merce determined that imports of the subject merchandise from Thailand were being, or were likely to be, sold in the United States at less than fair value. Id. The ITC’s injury investigation resulted in an affirma- tive preliminary determination in April 1985. Certain Welded Carbon Steel Pipes and Tubes from Thailand and Venezuela, Determinations of the Commission, Inv. Nos. 701-TA-242, 731-TA-252, -253, USITC Pub. 1680 (Apr. 1985) (Preliminary) (“Preliminary Injury Determination”). Subsequently in February 1986, the ITC issued an Case: 22-2181 Document: 42 Page: 7 Filed: 05/15/2024

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affirmative final determination that the investigated im- ports from Thailand materially injured or threatened ma- terial injury to a domestic industry. Certain Welded Carbon Steel Pipes and Tubes from Turkey and Thailand, Determinations of the Commission, Inv. Nos. 701-TA-253, 731-TA-252, USITC Pub. 1810 (Feb. 1986) (Final) (“Final Injury Determination”). In the Final Injury Determination, the ITC evaluated the injury effects of standard pipes im- ported from Thailand, and the injury effects of both stand- ard pipes and line pipes imported from Turkey. Id. at I-1, II-1. Following its practice in previous CWP investigations, the ITC treated standard and line pipes as two separate like products, and correspondingly, found two domestic in- dustries, a domestic standard pipe industry and a domestic line pipe industry. Final Injury Determination at 6–7; see also Preliminary Injury Determination at 6–8. The ITC concluded that “domestically produced standard pipe[s] [were] like imported standard pipe[s]” and that the domes- tic standard pipe industry included domestic producers of standard pipes, some of which simultaneously produced line pipes. Final Injury Determination at 6–7, I-5–I-6, II- 4; see also Preliminary Injury Determination at 8–9, A-8– A-9. In its analysis, the ITC described how steel pipes are manufactured, used, and classified in the industry. Final Injury Determination at I-1 & n.1 (referencing product de- scription in a previous investigation involving steel pipes from Korea), II-1. The ITC explained that in the industry, steel pipes can be divided based on the method of manufac- ture, welded or seamless, and each category can be further divided based on the grades of steel. 5 Id. at I-1. Relevant

5 In the steel industry, for the most part, the terms “pipes” and “tubes” can be used interchangeably. Final Case: 22-2181 Document: 42 Page: 8 Filed: 05/15/2024

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here, the American Iron & Steel Institute distinguishes among various pipes based on six end uses, including standard pipes, line pipes, mechanical tubing, and others. 6 Id. Additionally, steel pipes are generally produced to standards, or specifications, established by industry stand- ards organizations such as ASTM and API. Id. Each spec- ification has its corresponding requirements for chemical and mechanical characteristics, which a product must sat- isfy in order to comply with that specification. Id. at I-2, II-1. For the standard pipes under its investigation, the ITC stated, [t]he imported pipe and tube products that are the subject of these investigations are circular welded carbon steel pipes and tubes over 0.375 inch but not

Injury Determination at I-1. The parties generally refer to the products at issue in this case as “pipes,” and we do the same. 6 Standard pipes are generally used for “the low- pressure conveyance of water, steam, natural gas, air, and other liquids and gases,” such as in plumbing and heating systems and air-conditioning units. Final Injury Determi- nation at I-1. Line pipes are used for “the transportation of gas, oil, or water, generally in pipeline or utility distri- bution systems.” Id. at II-1. The manufacturing processes for line pipes and stand- ard pipes are nearly identical, and they can be produced using the same equipment. Id. The principal difference between the two is that line pipes are made of higher-grade steel and may require additional testing to ensure conform- ance to API specifications. Id. The ITC provided similar comparative descriptions of standard pipes and line pipes in its Preliminary Injury Determination. See Preliminary Injury Determination at A-5–A-8. Case: 22-2181 Document: 42 Page: 9 Filed: 05/15/2024

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over 16 inches in outside diameter, which are known in the industry as standard pipes and tubes. . . . They are most commonly produced to ASTM specifications A-120, A-53, and A-135. Id. at I-1–I-2 (emphasis added). The ITC concluded that “an industry in the United States [was] materially injured, or threatened with material injury, by reason of imports from Thailand of welded carbon steel standard pipes and tubes,” which Commerce found to be sold in the United States at less than fair value. Id. at 2. II. The Thailand Antidumping Duty Order In March 1986, following the affirmative final determi- nations of Commerce and the ITC, Commerce issued the Thailand antidumping duty order, imposing antidumping duties on standard pipes imported from Thailand. Anti- dumping Duty Order; Circular Welded Carbon Steel Pipes and Tubes from Thailand, 51 Fed. Reg. 8341, 8341 (Mar. 11, 1986) (“Thailand Order” or “Order”). According to the scope language of the Order, [t]he products covered by the order are certain cir- cular welded carbon steel pipes and tubes from Thailand. The subject merchandise has an outside diameter of 0.375 inches 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 tub- ing” are hereinafter designated as “pipes and tubes.” The merchandise is classifiable under the Harmo- nized 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 Case: 22-2181 Document: 42 Page: 10 Filed: 05/15/2024

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Border Protection (CBP), the written description of the merchandise subject to the order is dispositive. J.A. 40763 (citations omitted) (paragraphing and emphasis added); see also Certain Circular Welded Carbon Steel Pipes and Tubes from Thailand; Preliminary Results of An- tidumping Duty Administrative Review, 55 Fed. Reg. 42596, 42596 (Oct. 22, 1990) (“1990 Administrative Re- view”). In 1989, the scope language in the 1986 Order was up- dated to conform to the new tariff nomenclature frame- work, the Harmonized Tariff Schedule of the United States (“HTSUS”). 7 See 1990 Administrative Review, 55 Fed. Reg. at 42596 (noting the 1989 transition to the HTSUS). As shown above, the current scope language maintains the same physical description of the subject merchandise and lists tariff codes under the new HTSUS framework. The Order also clarifies that “the written description of the merchandise subject to the order is dispositive,” and the listed tariff codes are “provided for convenience and

7 As originally issued in 1986, the Thailand Order provides, [t]he products under investigation are certain cir- cular welded carbon steel pipes and tubes (referred to in this notice as “pipes and tubes”), also known as “standard pipe” or “structural tubing,” which in- cludes 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). 51 Fed. Reg. at 8341. Case: 22-2181 Document: 42 Page: 11 Filed: 05/15/2024

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purposes of” the U.S. Customs and Border Protection (“CBP”). J.A. 40763; 1990 Administrative Review, 55 Fed. Reg. at 42596 (“The written product description remains dispositive.”). Consequently, all standard pipes imported from Thai- land and falling within the scope of the Order became sub- ject to antidumping duties. III. The Present Case In January 2019, Wheatland, along with a group of other domestic producers, filed a request with Commerce seeking an antidumping circumvention ruling against Saha. J.A. 10169. The domestic producers alleged that Saha was exporting “standard pipe[s] with minor altera- tions in form or appearance” or “misclassified as line pipe[s]” that circumvented the Thailand Order and evaded antidumping duties. J.A. 10171–72, 10172 n.1. The do- mestic producers’ request covered what is central to this appeal, dual-stenciled pipes. 8 J.A. 10173. According to the domestic producers, the specifications for standard pipes and line pipes “often require engineering characteristics that overlap,” so a pipe may be dual-stenciled or dual-cer- tified. Id. That is, such pipes were “stamped to indicate compliance with” both an ASTM specification and an API specification. Id. (citing Certain Circular Welded Pipe and Tube from Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey, Inv. Nos. 701-TA-253, 731-TA-132, -252, -271, -273, -532–534, -536, USITC Pub. 4754 (Jan. 2018) (“Fourth Sunset Review”)).

8 The domestic producers’ request broadly covered pipes produced by Saha and identified as “line pipe[s],” which included pipes singularly stenciled as line pipes and those dually stenciled as both standard and line pipes. See J.A. 10173–76; see also J.A. 40631–32. Case: 22-2181 Document: 42 Page: 12 Filed: 05/15/2024

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Commerce initiated a scope inquiry to determine whether “line pipe” and “dual-stenciled standard and line pipe” were covered by the Thailand Order. J.A. 40631. With respect to the latter, Commerce explained that stand- ard pipes may be “dual-stenciled,” namely “identified to in- dicate compliance with two different specifications, as conforming to industry standards for both standard pipe[s] and line pipe[s].” J.A. 40635. Before Commerce, Saha ar- gued that the Thailand Order did not cover line pipes be- cause during the initial 1985–86 antidumping duty investigation, the petitioners partially withdrew their pe- tition concerning line pipes from Thailand. J.A. 40769. To Saha, all line pipes, including those dual-stenciled as both standard and line pipes, were excluded from the scope. Id. A. Commerce’s Scope Ruling In June 2020, Commerce reached a final scope ruling, which determined that the Thailand Order did not cover line pipes, and thus Saha’s line pipes did not fall within the scope of the Thailand Order. Antidumping Duty Order on Circular Welded Carbon Steel Pipes and Tubes from Thai- land: Final Scope Ruling on Line Pipe and Dual-Stenciled Standard and Line Pipe, J.A. 40762–80 (“Scope Ruling”). Commerce determined, however, that the Thailand Order covered dual-stenciled pipes so that the imports of Saha’s dual-stenciled pipes fell within the scope of the Order and were subject to antidumping duties. 9 J.A. 40780. In reaching its determination, Commerce first looked to the scope language of the Order covering “circular welded

9 The focus of the proceedings before the Court of In- ternational Trade and the instant appeal before this court is whether dual-stenciled pipes fall within the scope of the Thailand Order. Commerce’s determination that line pipes fall outside of the scope of the Thailand Order is not at is- sue in this appeal. Case: 22-2181 Document: 42 Page: 13 Filed: 05/15/2024

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carbon steel pipes and tubes,” commonly referred to as “standard pipe[s],” “limited by the dimensional require- ments stated in the scope of the Order.” J.A. 40763; J.A. 51. While the Order did not cover “line pipe[s],” Com- merce determined that the Order included dual-stenciled pipes. J.A. 40775. Commerce reasoned that dual-stenciled pipes were certified as “standard pipe[s]” under ASTM specifications and that they also met the physical descrip- tion of merchandise included in the scope of the Order. Id.; J.A. 51. To Commerce, if a pipe is certified as “standard pipe,” it is “standard pipe” and subject to the Order “re- gardless of whether it is also certified as line pipe.” J.A. 40775. Commerce next examined the criteria listed in 19 C.F.R. § 351.225(k)(1) (2020), 10 the so-called (k)(1) factors or (k)(1) materials, and other evidence, and it found the record information did not support that dual-stenciled pipes were not covered by the Order. See J.A. 40773–78; J.A. 51–53. Commerce considered that the petitioners withdrew their petition concerning line pipes from Thai- land and that both Commerce’s and the ITC’s investiga- tions were limited to standard pipes and did not cover line pipes. J.A. 40773–75. Commerce determined that dual- stenciled pipes were not excluded. J.A. 40775. Commerce reasoned that, in contrast to other CWP investigations leading to orders that explicitly excluded dual-stenciled

10 Under 19 C.F.R. § 351.225(k)(1) (2020), in deter- mining whether a particular product falls within the scope of an order, “[Commerce] will take into account the follow- ing: (1) The descriptions of the merchandise contained in the petition, the initial investigation, and the determina- tions of [Commerce] (including prior scope determinations) and the [ITC].” The regulation has since gone through re- vision. Because the 2020 version governs at time relevant to this case, parties cite to this version and we do the same. Case: 22-2181 Document: 42 Page: 14 Filed: 05/15/2024

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pipes, here neither Commerce’s Final LTFV Determination nor the ITC’s Final Injury Determination addressed dual- stenciled pipes. Id. Commerce thus found no basis in these determinations to find that dual-stenciled pipes were ex- cluded from the resulting Thailand Order. Id.; J.A. 51. Commerce rejected Saha’s reliance on certain isolated statements in the ITC’s sunset reviews evaluating various CWP orders, including the orders concerning imports from other countries, such as Brazil, Korea, Mexico, and Vene- zuela. J.A. 40776–77. Sunset reviews refer to the periodic evaluations of antidumping and countervailing duty orders to determine whether the orders should remain in place. See 19 U.S.C. § 1675(c). Since the sunset review process was established, the ITC has conducted four sunset re- views of various CWP orders. 11 Commerce explained that the sunset reviews simultaneously assessed various exist- ing CWP orders: some explicitly excluded dual-stenciled pipes while others, such as the Thailand Order, did not.

11 Certain Pipe and Tube from Argentina, Brazil, Canada, India, Korea, Mexico, Singapore, Taiwan, Thai- land, Turkey, and Venezuela, Inv. Nos. 701-TA-253, 731- TA-132, -252, -271, -273, -276, -277, -296, -409, -410, -532– 534, -536, -537, USITC Pub. 3316 (July 2000) (“First Sun- set Review”); 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, -536, USITC Pub. 3867 (July 2006) (“Second Sunset Review”); Certain Circular Welded Pipe and Tube from Brazil, India, Korea, Mexico, Taiwan, Thailand, and Turkey, Inv. Nos. 701-TA-253, 731-TA-132, -252, -271, - 273, -532-534, -536, USITC Pub. 4333 (June 2012) (“Third Sunset Review”); Fourth Sunset Review, USITC Pub. 4754. Case: 22-2181 Document: 42 Page: 15 Filed: 05/15/2024

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J.A. 40776–77. 12 Commerce reasoned that the ITC’s state- ments must be viewed in context and not as mechanically and equally applicable to all orders under review. J.A. 40776. In other words, each CWP order stands alone and certain language in one order does not “dispositively provide meaning to an order which does not include the same language.” Id. Further, Commerce found unsubstantiated Saha’s claim that the petitioners had intended to exclude dual- stenciled pipes from the initial investigation underlying the Thailand Order. J.A. 40778. Saha based its claim on its view of the petitioners’ interest and involvement in other CWP investigations, which occurred years or decades later. See id. Commerce determined that Saha’s interpre- tation of the petitioners’ intentions in the initial investiga- tion leading to the instant Order were “mere speculation” and lacked support in the record. Id. Accordingly, Commerce issued a Scope Ruling conclud- ing that although line pipes were not covered, dual-sten- ciled pipes were within the scope of the Thailand Order. B. Saha I Saha appealed Commerce’s Scope Ruling to the U.S. Court of International Trade. Saha Thai Steel Pipe Pub. Co. v. United States, 547 F. Supp. 3d 1278, 1281 (Ct. Int’l Trade 2021) (“Saha I”). The Court of International Trade found Commerce unlawfully expanded the scope of the Thailand Order by determining that it covered dual-

12 For example, Commerce pointed out that the anti- dumping duty orders on standard pipes imported from Bra- zil, Korea, Mexico, and Venezuela explicitly state: “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 [] not included in these orders.” J.A. 40775 n.89. Case: 22-2181 Document: 42 Page: 16 Filed: 05/15/2024

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stenciled pipes. Id. To the Court of International Trade, the Thailand Order’s scope language did not address “dual- stenciled pipes,” so it was unclear what qualified as “stand- ard pipe[s]” under the Order. Id. at 1293–94. The Court of International Trade then reviewed the (k)(1) materials and concluded they did not support Commerce’s determination that the dual-stenciled pipes fell within the scope of the Or- der. Id. at 1294–99. In reaching its conclusion, the Court of International Trade relied on the petitioners’ partial withdrawal during the initial 1985–86 investigation, which in the court’s view, also withdrew dual-stenciled pipes. Id. at 1295. To the Court of International Trade, by withdrawing “[their] peti- tions insofar as they concern line pipe, TSUS numbers 610.3208 and 3209,” the petitioners “withdrew all pipes that were importable under 610.3208 and 3209 from con- sideration by the ITC and Commerce.” Id. This with- drawal, the Court of International Trade continued, encompassed dual-stenciled pipes because they would have been imported under “TSUS numbers 610.3208 and 3209.” Id. Accordingly, the Court of International Trade con- cluded that dual-stenciled pipes were not included in the subsequent injury investigation conducted by the ITC and hence omitted from the resulting Thailand Order. Id. at 1295–96. The Court of International Trade asserted that its con- clusion was supported by the ITC’s sunset reviews. Id. at 1297. In the Court of International Trade’s view, the ITC consistently treated dual-stenciled pipes as line pipes, and its sunset reviews referenced exclusions of dual-stenciled pipes from CWP orders. Id. The Court of International Trade noted that the First and Second Sunset Reviews dis- cussed dual-stenciled pipes only in the context of a “safe- guard” remedy, where President Clinton imposed increased duties on line pipe imports as defined in his Case: 22-2181 Document: 42 Page: 17 Filed: 05/15/2024

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proclamation. 13 Id.; see Second Sunset Review at Over- view-5 n.16 (commenting that the safeguard measure cov- ered “dual-stenciled” pipes but excluded “arctic grade” line pipes). The Court of International Trade also considered that the Third and Fourth Sunset Reviews included a state- ment that “[d]ual-stenciled pipe, which enters as line pipe under a different subheading of the [HTSUS] for U.S. cus- toms purposes, is not within the scope of the orders.” Saha I, 547 F. Supp. 3d at 1297–98 (alteration in original) (first citing Fourth Sunset Review at 6–7; and then citing Third Sunset Review at 8). The Court of International Trade con- sidered this statement as “unqualified and [giving] no indi- cation that the scope language d[id] not apply to the Thailand Order.” Id. The Court of International Trade thus remanded to Commerce to reconsider its Scope Ruling based on the court’s analysis. Id. at 1299. C. Saha II On remand, to comply with the remand order, Com- merce concluded, under protest, that the Thailand Order did not cover dual-stenciled pipes. Final Results of Rede- termination Pursuant to Court Remand, J.A. 46–73 (“Re- mand Determination”). “Under protest” means that the Court of International Trade’s decision dictated that Com- merce reach a result that is contrary to what it would have reached absent the Court of International Trade’s di- rective. Meridian Prods. v. United States, 890 F.3d 1272, 1276 n.3 (Fed. Cir. 2018) (“Meridian II”). In its Remand Determination, Commerce affirmed its reasoning as stated

13 In March 2000, President Clinton issued Proclama- tion No. 7274, 65 Fed. Reg. 9193 (Feb. 23, 2000), imposing additional duties on line pipe imports over certain quanti- ties each year from each supplying country for a period of three years, excluding those from Mexico and Canada. Case: 22-2181 Document: 42 Page: 18 Filed: 05/15/2024

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in its Scope Ruling and expressed various concerns it had with the Court of International Trade’s analysis. J.A. 59– 65. Commerce believed that the Court of International Trade misunderstood the ITC’s injury findings and ignored relevant statements in the ITC’s sunset reviews that de- tracted from the Court of International Trade’s conclusion. J.A. 61–65; see also J.A. 63–64 (noting ITC statements that CWP orders have varying scopes). The Court of International Trade sustained Com- merce’s Remand Determination, namely the conclusion that dual-stenciled pipes were not covered by the Thailand Order. Saha Thai Steel Pipe Pub. Co. v. United States, 592 F. Supp. 3d 1299, 1301 (Ct. Int’l Trade 2022) (“Saha II”). In its decision, the Court of International Trade main- tained its reasoning in Saha I, stressing (1) its view that the petitioners’ partial withdrawal concerning line pipes during the initial investigation encompassed dual-sten- ciled pipes; and (2) its view that the ITC consistently iden- tified dual-stenciled pipes as line pipes. Id. at 1305, 1312– 13. The Court of International Trade concluded that Com- merce’s Remand Determination properly complied with its remand order in finding dual-stenciled pipes not included in the Thailand Order. Id. at 1313. Wheatland appeals, contending that Commerce’s Scope Ruling was correct and should have been affirmed by the Court of International Trade. We have jurisdiction under 28 U.S.C. § 1295(a)(5). STANDARD OF REVIEW We review the Court of International Trade’s decisions de novo, applying the same standard of review used by the Court of International Trade in reviewing Commerce’s scope rulings. Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015). We affirm Commerce’s scope ruling unless it is “unsup- ported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Case: 22-2181 Document: 42 Page: 19 Filed: 05/15/2024

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Substantial evidence means such relevant evidence that a reasonable mind may accept as adequate to support a con- clusion. Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed. Cir. 2001). In our review, we accord deference to Commerce’s own interpretation of its antidumping duty orders. King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed. Cir. 2012). This deference is appropriate because determinations as to the meaning and scope of antidumping duty orders are matters “particularly within the expertise” of Commerce and its “special competence.” Id. (quoting Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed. Cir. 1998)). Our caselaw has also recognized that in conducting our re- view, we pay due respect to and “will not ignore the in- formed opinion of the Court of International Trade.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed. Cir. 1994); see Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). Under the substantial evidence review standard, even if an inconsistent conclusion could be drawn from the rec- ord, “such a possibility does not prevent Commerce’s deter- mination from being supported by substantial evidence.” Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001). A party challenging Commerce’s scope ruling under the substantial evidence standard “has cho- sen a course with a high barrier to reversal.” King Supply, 674 F.3d at 1348 (quoting Nippon Steel, 458 F.3d at 1352). DISCUSSION I. Legal Framework There is no specific statutory provision that governs the interpretation of the scope of an antidumping duty or- der. Shenyang Yuanda, 776 F.3d at 1354. The regulations provide an analytical framework guiding Commerce’s rea- soning and analysis in reaching a scope ruling. Id. Under Case: 22-2181 Document: 42 Page: 20 Filed: 05/15/2024

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the applicable regulations at the time of Commerce’s scope ruling, 19 C.F.R. § 351.225(k) (2020), 14

14 In 2021, Commerce amended various sections of its regulations concerning antidumping and countervailing duties, including the regulations on scope rulings. See Reg- ulations to Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws, 86 Fed. Reg. 52300 (Sept. 20, 2021) (“2021 Revised Regulations”). As amended, effective November 4, 2021, 19 C.F.R. § 351.225(k) provides, (1) In determining whether a product is covered by the scope of the order at issue, [Commerce] will con- sider the language of the scope and may make its determination on this basis alone if the language of the scope, including the descriptions of merchan- dise expressly excluded from the scope, is disposi- tive. (i) The following primary interpretive sources may be taken into account under paragraph (k)(1) introductory text of this section, at the discretion of [Commerce]: (A) The descriptions of the merchandise contained in the petition pertaining to the order at issue; (B) The descriptions of the merchandise contained in the initial inves- tigation pertaining to the order at issue; (C) Previous or concurrent determinations of [Commerce], . . . ; and (D) Determinations of the [ITC] pertaining to the order at is- sue, . . . . (ii) [Commerce] may also consider second- ary interpretive sources . . . . Case: 22-2181 Document: 42 Page: 21 Filed: 05/15/2024

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in considering whether a particular product is in- cluded within the scope of an order or a suspended investigation, [Commerce] will take into account the following: (1) The descriptions of the merchandise contained in the petition, the initial inves- tigation, and the determinations of [Com- merce] (including prior scope determinations) and the [ITC]. (2) When the above criteria are not dispos- itive, [Commerce] will further consider: (i) The physical characteristics of the product; (ii) The expectations of the ultimate purchasers; (iii) The ultimate use of the product; (iv) The channels of trade in which the product is sold; and (v) The manner in which the product is advertised and displayed. This court has considered the tiered analysis frame- work in its review of Commerce’s scope rulings. E.g., Me- ridian Prods., LLC v. United States, 851 F.3d 1375, 1381 (Fed. Cir. 2017) (“Meridian I”); Shenyang Yuanda, 776 F.3d at 1354; Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002). We have long recognized that the scope language of the order is the “cornerstone” of this analysis and “a predicate for the interpretive process.” Duferco Steel, 296 F.3d at 1097. Although the scope of the order can be clarified, the scope language cannot be inter- preted or “changed in a way contrary to its terms.” Id. (quoting Smith Corona Corp. v. United States, 915 F.2d 683, 686 (Fed. Cir. 1990)). While the terms of the order describe the merchandise within the scope of the order, they may also expressly de- scribe merchandise that, for whatever reason, is excluded Case: 22-2181 Document: 42 Page: 22 Filed: 05/15/2024

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from the scope. Hence, the parties may argue that a par- ticular product is not within the scope on the ground that it falls within an explicit exclusion expressed in the order. See, e.g., Meridian I, 851 F.3d at 1379 (parties disputing whether merchandise at issue fell within express exclu- sions of the order); Shenyang Yuanda, 776 F.3d at 1358 (same); Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998) (same). But, here, the Order contains no such express exclusions. In addition, antidumping duty orders list tariff codes relevant to the merchandise subject to the orders or subject to the explicit exclusions in the orders, which the CBP ref- erences in regulating imports as they enter the U.S. bor- der. 15 Consequently, antidumping duty orders generally contain instructions that the tariff codes are for purposes

15 J.A. 40763; see, e.g., Crystalline Silicon Photovol- taic Cells, Whether or Not Assembled into Modules, From the People’s Republic of China: Amended Final Determina- tion of Sales at Less Than Fair Value, and Anti-dumping Duty Order, 77 Fed. Reg. 73018, 73019 (Dec. 7, 2012), dis- cussed in Sunpreme Inc. v. United States, 946 F.3d 1300, 1304 (Fed. Cir. 2020); Notice of Amended Final Determina- tion of Sales at Less than Fair Value and Antidumping Duty Order: Certain Tissue Paper Products from the Peo- ple’s Republic of China, 70 Fed. Reg. 16223, 16223–24 (Mar. 30, 2005), discussed in Walgreen Co. of Deerfield, IL v. United States, 620 F.3d 1350, 1353 (Fed. Cir. 2010); No- tice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from the People’s Republic of China, 64 Fed. Reg. 8308, 8309 (Feb. 19, 1999), discussed in Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1383 (Fed. Cir. 2005). Case: 22-2181 Document: 42 Page: 23 Filed: 05/15/2024

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of the CBP, and “the written description of the merchan- dise subject to the order is dispositive.” 16 Again, as the above indicates, Commerce must begin a scope determination inquiry with a review of the scope lan- guage of the order. Shenyang Yuanda, 776 F.3d at 1354. In doing so, Commerce considers how the scope language of the order describes the subject merchandise it covers. E.g., Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1303 (Fed. Cir. 2013). If the scope language ex- pressly and dispositively resolves whether the subject mer- chandise falls within or outside of the scope, the scope analysis comes to an end. Id. 17 If the scope language itself does not clearly answer the scope question, Commerce continues its interpretation to understand the meaning of the scope language by consult- ing criteria identified in 19 C.F.R. § 351.225(k)(1) (2020), the so-called (k)(1) factors or (k)(1) materials. See, e.g., Me- ridian I, 851 F.3d at 1382. The (k)(1) materials include “[t]he descriptions of the merchandise contained in the pe- tition, the initial investigation, and the determinations of [Commerce] (including prior scope determinations) and the [ITC].” 19 C.F.R. § 351.225(k)(1) (2020). While these ma- terials do not substitute for the scope language, they reflect the historical context and may provide “valuable guidance”

16 See exemplary orders identified in supra note 15. 17 Cf. 2021 Revised Regulations, 86 Fed. Reg. at 52322 (Commerce commenting that “in most straightfor- ward cases, the agency is not required to consider the four listed (k)(1) interpretative sources if such an analysis would waste agency time and resources”); 19 C.F.R. § 351.225(k) (“In determining whether a product is covered by the scope of the order at issue, [Commerce] . . . may make its determination on this basis alone if the language of the scope, including the descriptions of merchandise ex- pressly excluded from the scope, is dispositive.”). Case: 22-2181 Document: 42 Page: 24 Filed: 05/15/2024

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for the interpretation of the order. Duferco Steel, 296 F.3d at 1097. The (k)(1) materials cannot control or alter the scope language of the order. Rather, they serve as interpretative aids that clarify or support Commerce’s understanding of the scope language that Commerce may arrive at upon re- viewing the scope language itself. For instance, in Merid- ian I, the parties disputed whether Commerce erred in its interpretation of the exclusionary term “finished goods kit” in the scope language. Meridian I, 851 F.3d at 1384. We concluded that Commerce correctly interpreted that exclu- sionary term and that its determination was further sup- ported by the (k)(1) materials. Id. In King Supply, similarly, we determined that Commerce reasonably read the disputed language at issue as not constituting an end- use restriction, and that the (k)(1) materials supported that reading. King Supply, 674 F.3d at 1350–51. We thus held that Commerce’s scope ruling was supported by sub- stantial evidence and reversed the Court of International Trade’s judgment to the contrary. Id. at 1351. In cases where an analysis of the (k)(1) materials is still not dispositive, Commerce may proceed to consider the fac- tors listed under 19 C.F.R. § 351.225(k)(2) (2020), the so-called (k)(2) factors. Shenyang Yuanda, 776 F.3d at 1354; see also id. at 1358 (declining to consider the (k)(2) factors because the scope language read in the context of the (k)(1) materials proved dispositive). These factors in- clude the “physical characteristics of the product,” the “ex- pectations of the ultimate purchasers,” the “ultimate use of the product,” and the relevant “channels of trade” and man- ner of marketing. 19 C.F.R. § 351.225(k)(2) (2020). Thus, depending on the clarity of the scope language relative to the merchandise at issue, a scope analysis may encompass varying sources. Consequently, scope analysis is “highly fact-intensive and case-specific.” King Supply, 674 F.3d at 1345. Case: 22-2181 Document: 42 Page: 25 Filed: 05/15/2024

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II. Analysis We now turn to the principal issue of this appeal: whether the Thailand Order on “standard pipes” covers Saha’s “dual-stenciled pipes,” namely pipes certified as “standard pipes” and concurrently as “line pipes.” As noted supra, Commerce’s Scope Ruling determined that the Order covered dual-stenciled pipes. The Court of International Trade, in sustaining Commerce’s Remand Determination, reached the opposite conclusion finding dual-stenciled pipes excluded from the Order. On appeal, Wheatland contends that the Court of International Trade erred in its analysis and should have affirmed Commerce’s determination in its Scope Ruling. Saha argues in favor of the Court of International Trade’s affirmance of Com- merce’s Remand Determination. For the reasons discussed below, we hold that Commerce’s determination that im- ports of dual-stenciled pipes from Thailand are within the scope of the Thailand Order on standard pipes is supported by substantial evidence. As a result, we reverse the judg- ment of the Court of International Trade that affirmed Commerce’s Remand Determination. Before turning to the scope language, we first address Wheatland’s contention that Commerce “impermissibly re- lied on (k)(1) factors” in reaching its Scope Ruling. Appel- lant Br. 21–23. Commerce, in its Scope Ruling, rejected Wheatland’s similar contention raised below. J.A. 40768. We conclude that Commerce properly considered the (k)(1) materials in reaching its Scope Ruling. As Commerce pointed out, the applicable regulations provide that Commerce, in reaching a scope ruling, “will take into account” the (k)(1) materials. 19 C.F.R. § 351.225(k) (2020). Thus, the regulations at least permit, if not mandate, Commerce to consider the (k)(1) materials. Further, where, as here, the parties explicitly rely on the (k)(1) materials for their contradictory interpretation of an order, Commerce cannot arbitrarily ignore those Case: 22-2181 Document: 42 Page: 26 Filed: 05/15/2024

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arguments and evidence on the record. See 19 U.S.C. § 1516a(b). If Commerce were to reject a contrary conten- tion allegedly supported by the (k)(1) materials, Commerce must adequately explain its reasoning for that rejection. See, e.g., CP Kelco US, Inc. v. United States, 949 F.3d 1348, 1356 (Fed. Cir. 2020). Commerce properly did so here. We note the Court of International Trade’s observation that this court “arguably” provided two “distinct methods” to determine “whether a scope’s language is sufficiently ambiguous that Commerce must resort to additional docu- ments” to interpret an antidumping duty order. Saha I, 547 F. Supp. 3d at 1289 (first citing OMG, Inc. v. United States, 972 F.3d 1358, 1363 (Fed. Cir. 2020); and then cit- ing Meridian II, 890 F.3d at 1277)). According to the Court of International Trade, under the OMG approach, “the first step in a scope ruling proceeding is to determine whether the governing language is in fact ambiguous;” and Com- merce considers the (k)(1) materials if “the language is am- biguous.” Id. at 1289–90. The second approach, according to the Court of International Trade, is the Meridian ap- proach. Id. at 1290. In the Court of International Trade’s view, under the Meridian approach, when “reviewing the plain language of a duty order” to determine whether it is ambiguous, Commerce must consider the (k)(1) materials. Id. As we outlined above, there is only one framework which, as both the OMG and Meridian decisions stress, be- gins with a review of the scope language itself. OMG, 972 F.3d at 1363; Meridian II, 890 F.3d at 1277; Meridian I, 851 F.3d at 1381. And if the scope cannot be clearly and dispositively discerned based on the scope language itself, Commerce must turn to the aid of the (k)(1) and, if still necessary, (k)(2) sources. See, e.g., OMG, 972 F.3d at 1363; Meridian I, 851 F.3d at 1382. In other words, the (k)(1) materials are interpretive tools that, where needed, help clarify what the scope language means relative to the scope question at issue, namely whether a particular product Case: 22-2181 Document: 42 Page: 27 Filed: 05/15/2024

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falls within the scope. But this assistance may be unnec- essary if the scope language itself answers that scope ques- tion and thus needs no further interpretation. We note that in Commerce’s recent effort to clarify the regulatory framework, Commerce expressed a similar understanding based on its practice, as now codified in the revised regula- tions. 2021 Revised Regulations, 86 Fed. Reg. at 52323. The current regulations clarify that the traditional (k)(1) materials are “primary interpretive sources” that Com- merce may consider “at [its] discretion,” if it determines the scope language itself does not clearly and sufficiently an- swer the scope question. 19 C.F.R. § 351.225(k)(1)(i). The current regulations also list other “secondary interpreta- tive sources” that Commerce “may also consider,” as well as the hierarchy of these interpretative sources. Id. § 351.225(k)(1)(ii). Practically, because the scope language is necessarily written in general terms, Commerce will likely consider the (k)(1) materials to assist in understanding the meaning of the scope language relevant to the determination of whether a particular product is within the scope. See 2021 Revised Regulations, 86 Fed. Reg. at 52323 (noting that “in the majority of scope inquiries, it is likely that the current (k)(1) sources would be considered” in reaching a scope rul- ing). This is particularly true where, as here, a scope ruling is requested, subsequently disputed, and eventually ap- pealed to this court. A. The Scope Language Covers Dual-Stenciled Pipes We now turn to reviewing the scope language at issue. We find that in its Scope Ruling, Commerce reasonably in- terpreted the Thailand Order’s scope as covering standard pipes dually stenciled as line pipes. The first sentence of the Order states that it covers “certain circular welded car- bon steel pipes and tubes from Thailand. The subject mer- chandise has an outside diameter of 0.375 inches or more, but not exceeding 16 inches, of any wall thickness.” Case: 22-2181 Document: 42 Page: 28 Filed: 05/15/2024

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J.A. 40763. There is no dispute that Saha’s dual-stenciled pipes are “circular welded carbon steel pipes and tubes from Thailand” and that they meet the physical dimensions the Order describes. E.g., Appellee Br. 16–17. In the following sentence, the Order adds that the prod- ucts covered by the Order are “commonly referred to in the industry as ‘standard pipe[s].’” J.A. 40763. By this limita- tion, the Order further explicitly refines the universe of merchandise defined by the as-described physical charac- teristics, limiting it to “standard pipe[s].” Recognizing the effect of this limitation, Commerce determined that, pipes singularly certified as line pipes (not as standard pipes), even if they meet the described dimensions, fell outside of the scope of the Order. J.A. 40773–75. The same conclusion does not, as Saha contends, ex- tend to dual-stenciled pipes. See, e.g., Appellee Br. 20 (Saha interpreting the “commonly referred to in the indus- try as ‘standard pipe[s]’’’ language as further excluding standard pipes dual-stenciled as line pipes). There is no dispute that dual-stenciled pipes are certified as “standard pipe[s],” suitable for standard-pipe applications and in compliance with ASTM specifications. E.g., id. at 4, 16–17, 19. There is also no dispute that these pipes additionally meet the API specification for, and are dually stenciled as, line pipes. Id. at 11. But meeting an additional specifica- tion, namely API line pipe specification(s), does not strip away the qualification of these pipes as standard pipes. J.A. 40775; see J.A. 40765 (diagram illustrating pipes meeting overlapping industry standards). “[S]tandard pipe[s],” as recited in the Order, means what it plainly says, “standard pipe[s].” It cannot be reasonably read to mean, as Saha contends, an unidentified subset within standard pipes that remains after another unidentified subset is excluded. E.g., Appellee Br. 20 (Saha asserting that the Order excludes standard pipes that are dually stenciled, leaving within the scope only those that are sin- gularly stenciled as standard pipes). Case: 22-2181 Document: 42 Page: 29 Filed: 05/15/2024

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The last part of the Order provides a listing of tariff codes under which the subject merchandise is classifiable. Saha contends that because the listing does not include those tariff codes under which dual-stenciled pipes would be imported, it shows that the Order does not cover dual- stenciled pipes. Id. at 18–19. We disagree. Immediately following the listing of tariff codes, the concluding sentence of the Order explicitly instructs that the tariff codes are “provided for convenience and pur- poses” of the CBP, and that “the written description of the merchandise subject to the order is dispositive.” J.A. 40763. As we noted above, antidumping duty orders listing tariff treatment for CBP purposes often contain the same instructions. The regulations do not require Com- merce to provide an exhaustive and dispositive listing of all tariff codes covering the entirety of merchandise subject to an antidumping duty order. Novosteel SA v. U.S., Bethle- hem Steel Corp., 284 F.3d 1261, 1270–71 (Fed. Cir. 2002). The listed tariff codes are thus what the Order instructs them to be, “for convenience and purposes” of the CBP. J.A. 40763. They cannot be reasonably read to exclude a subset of standard pipes, contradicting the “written de- scription” that the Order instructs to be “dispositive.” Id. Accordingly, Commerce’s determination in its Scope Ruling reasonably read the scope language to cover stand- ard pipes that are dually stenciled as line pipes. The Thai- land Order does not contain any exclusionary language, and we find Saha’s attempt to read in an exclusion unsup- ported and unreasonable. B. The (k)(1) Materials Support Commerce’s Interpre- tation Saha alternatively argues that the scope language it- self does not resolve whether the Order covers dual-sten- ciled pipes and that the (k)(1) materials support excluding dual-stenciled pipes from the Order. Appellee Br. 24. We disagree. Consideration of the (k)(1) materials supports Case: 22-2181 Document: 42 Page: 30 Filed: 05/15/2024

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Commerce’s Scope Ruling determination and not Saha’s proposed exclusion. As noted supra, Saha does not dispute that dual-sten- ciled pipes are certified as standard pipes, meet ASTM specifications for standard pipes, and suit the correspond- ing standard-pipe applications. The sole remaining dis- pute thus boils down to, absent an express exclusion in the scope language in the Thailand Order, whether the (k)(1) materials support an implicit exclusion of standard pipes if they are dually stenciled as line pipes. They do not. There is a long history of antidumping proceedings in- volving imports of steel pipes from various countries going back to the early 1980s. See Fourth Sunset Review at I-4. As Commerce explained, in the industry, steel pipes are broadly classified based on end-use, and they are “gener- ally produced according to” and “distinguishable based on” industry standards and specifications. J.A. 40773; see also Final Injury Determination at I-1 n.1 (referring to steel pipes descriptions set forth in Certain Welded Carbon Steel Pipes and Tubes from the Republic of Korea, Determination of the Commission, Inv. No. 701-TA-168, USITC Pub. 1345 (Feb. 1983) (Final)). Throughout the initial investigation culminating in the Thailand Order, the same industry specifications and designations were consistently used to define standard pipes, with no qualifiers based on addi- tional specifications the same pipes might also meet. In the initial February 1985 petition, the petitioners described “standard pipe” as a “general-purpose commod- ity . . . commonly referred to in the industry as a standard pipe” and “generally produced to ASTM specifications.” 18

18 The particular ASTM or API specifications refer- enced in the historical documents are not in dispute in this case. E.g., J.A. 40764 (noting that standard pipes are Case: 22-2181 Document: 42 Page: 31 Filed: 05/15/2024

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J.A. 40536. Line pipes, which the petitioners originally in- cluded in the petition but later withdrew, were described as “produced to API specifications for line pipe[s].” Id. When Commerce initiated the antidumping duty inves- tigation in March 1985, Commerce described the pipes un- der investigation as “commonly referred to in the industry as standard pipe or structural tubing, [] produced to vari- ous ASTM specifications.” Commerce Initiation Notice, 50 Fed. Reg. at 12068–12069 (emphasis added). In its injury investigation and like-product determination, the ITC adopted the same description in defining standard pipes subject to its investigation, describing that “[t]he imported pipe and tube products that are the subject of these inves- tigations are . . . known in the industry as standard pipes and tubes. . . . They are most commonly produced to ASTM specifications.” Final Injury Determination at I-1–I-2 (em- phasis added); Preliminary Injury Determination at A-6. None of the historical documents contains any qualifier restricting the definition of standard pipes or carves out any subset of standard pipes based on additional specifica- tions they may meet. As long as the pipes meet ASTM specifications, they are considered standard pipes. 19 The

commonly produced to “ASTM specifications A-120, A-53, and A-135,” and line pipes to “API specification 5L”). 19 The current scope language incorporates the phrase “commonly referred to in the industry as standard pipe,” tracking the subject-merchandise description Com- merce used when it initiated the initial investigation. Compare J.A. 40763, with Commerce Initiation Notice, 50 Fed. Reg. at 12069. Similarly, in the originally issued March 1986 Order, Commerce used the phrase “known as” standard pipes, tracking the description Commerce used in the Final LTFV Determination and the ITC’s description in its Final Injury Determination. Compare 51 Fed. Reg. at Case: 22-2181 Document: 42 Page: 32 Filed: 05/15/2024

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historical context of the initial antidumping duty investi- gation therefore supports Commerce’s interpretation of the scope of “standard pipe[s]” under the Order. Because dual- stenciled pipes meet ASTM specifications for standard pipes, they constitute “standard pipe[s]” and fall within the Thailand Order’s scope. The (k)(1) materials do not support Saha’s proposed clarification of the Order to exclude dual-stenciled pipes from the scope. Saha primarily relies on (1) its proposed interpretation of the petitioners’ intention behind their partial withdrawal concerning line pipes during the initial investigation; and (2) the exclusions in other trade remedy proceedings, as referenced in the ITC’s sunset reviews. Ap- pellee Br. 11–13. Neither is persuasive. At bottom, Saha would have us inject an implicit exclusion into the scope language based on a supposed implicit inclusion that Saha reads from certain (k)(1) materials. That is backwards and ignores the paramount weight the scope language carries that the (k)(1) materials do not. E.g., Duferco Steel, 296 F.3d at 1097. While the (k)(1) materials may aid in clari- fying the scope of an order, they cannot rewrite or change the scope of the order, and they do not here. Id. During the initial investigation, in March 1985, the pe- titioners partially withdrew their petition “insofar as they concern line pipe[s], TSUS numbers 610.3208 and 3209.” J.A. 40612. Saha now interprets this statement to indicate that the petitioners intended to broadly exclude all pipes that “meet[] the API definition of line pipe[s],” regardless

8341, with Final LTFV Determination, 51 Fed. Reg. at 3384 and Final Injury Determination at I-1–I-2. The historical context clarifies that these phrases describe pipes “pro- duced to [various] ASTM specifications” and contain no limitation based on other criteria. See, e.g., Commerce Ini- tiation Notice, 50 Fed. Reg. at 12068–12069; Final Injury Determination at I-1–I-2. Case: 22-2181 Document: 42 Page: 33 Filed: 05/15/2024

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of whether they meet the specifications of other pipes. Ap- pellee Br. 26. According to Saha, at the time of the initial investigation, dual-stenciled pipes would have entered un- der “TSUS numbers 610.3208 and 3209.” Id. at 28. Based on these propositions, Saha claims that the petitioners had intended to exclude dual-stenciled pipes from the initial in- vestigation and the resulting Thailand Order. Id. We dis- agree. It is Commerce, “not those who initiated the proceed- ings,” that “determine[s] the scope of the final orders.” Duferco Steel, 296 F.3d at 1097. As discussed above, while limiting the initial investigation to standard pipes, Com- merce incorporated no restriction excluding standard pipes dually stenciled as line pipes. Further, as Commerce ex- plained, in contrast to some later CWP investigations where the petitioners specifically excluded dual-stenciled pipes, the petitioners “made no similar statement or clari- fication” during the initial investigation underlying the Thailand Order. J.A. 40778. Here, the petitioners’ partial- withdrawal statement made no reference to, let alone ex- cluded, dual-stenciled pipes. J.A. 40612. We find no sup- port in the petitioners’ statement, or Saha’s interpretation of the petitioners’ statement, that Commerce excluded dual-stenciled pipes from the initial investigation or the scope of “standard pipe[s]” in the resulting Order. For similar reasons, we reject Saha’s attempt to extrap- olate its interpretation of the petitioners’ withdrawal of line pipes to how the ITC supposedly limited the merchan- dise underlying its injury investigation in 1985–86. See Appellee Br. 35–36. As explained above, in its injury in- vestigation and the resulting affirmative determination, the ITC described the product under its investigation and causing injury as “standard pipes” produced to ASTM spec- ifications. Final Injury Determination at I-1; Preliminary Injury Determination at 5, 7; J.A. 62 (Commerce explaining that the ITC “expressly found ASTM stenciled pipe (stand- ard pipe) from Thailand injur[ed] the domestic industry”). Case: 22-2181 Document: 42 Page: 34 Filed: 05/15/2024

34 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

The ITC did not reference or somehow carve out any subset of “standard pipes,” based on other specification(s) these pipes might have simultaneously met. Nor did the ITC do so in defining “like product” or the domestic standard pipe industry that it determined to be injured by the imported standard pipes. See Final Injury Determination at 6–7; Preliminary Injury Determination at 6–9. Saha’s reliance on other investigations and CWP or- ders, as referenced in the ITC’s sunset reviews, is similarly unavailing. As Commerce explained, the sunset reviews summarize the ITC’s assessment of various CWP orders re- sulting from separate investigations. J.A. 40776–77; J.A. 64–65; Fourth Sunset Review at 6 (noting CWP orders under review “vary in terms of outside wall thickness spec- ifications and product exclusions”). The various orders un- der the same sunset review have different scope terms: some explicitly exclude dual-stenciled or triple-stenciled pipes, which the Thailand Order does not do. For instance, the 1992 CWP orders concerning imports from Brazil, Ko- rea, Mexico, and Venezuela state that “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 [] not in- cluded in these orders.” 20 Notice of Antidumping Orders: Certain Circular Welded Non-Alloy Steel Pipe from Brazil, the Republic of Korea (Korea), Mexico, and Venezuela, and Amendment to Final Determination of Sales at Less Than Fair Value: Certain Circular Welded Non-Alloy Steel Pipe from Korea, 57 Fed. Reg. 49453, 49453 (Nov. 2, 1992)

20 Saha’s reliance on the Wheatland decision simi- larly fails. Appellee Br. 47 (citing Wheatland, 161 F.3d at 1366). In Wheatland, we addressed the same 1992 CWP orders and concluded that the scope language explicitly ex- cluded dual-certified pipe. Wheatland, 161 F.3d at 1368– 69. The same exclusion cannot be found in the Thailand Order. Case: 22-2181 Document: 42 Page: 35 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 35

(emphasis added). The Thailand Order, in contrast, does not contain similar exclusionary language, which Com- merce properly gave effect in interpreting the Thailand Or- der. We reject Saha’s attempt to read references to exclusions in other CWP orders as equally applying to the Thailand Order. Saha’s reliance on President Clinton’s temporary safe- guard duties imposed on line pipes fails for similar reasons. See Appellee Br. 43. The safeguard duties imposed by Pres- ident Clinton represent a different trade remedy address- ing line pipes, which came into effect in 2000 and expired in 2003. 21 It bears little relevance to, and little weight to control, how Commerce defined the scope of standard pipes in the 1986 Thailand Order or in the initial investigation leading up to it. Accordingly, we conclude that the (k)(1) materials sup- port Commerce’s reasonable interpretation of the scope of standard pipes in the Thailand Order, and that Saha’s pro- posed exclusion lacks support. The Court of International Trade reached a contrary conclusion that lacked support in the record and failed to give sufficient deference to Com- merce under the substantial evidence standard of review and in matters “particularly within [Commerce’s] exper- tise.” King Supply, 674 F.3d at 1348. Even if two incon- sistent yet reasonable conclusions could have been drawn from the record, the Court of International Trade cannot substitute its own judgment for that of Commerce. Id. at 1348, 1351; Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed. Cir. 2001). Here we find one reasonable conclusion, Commerce’s.

21 Proclamation No. 7274, 65 Fed. Reg. at 9193–9194; see also 19 U.S.C. §§ 2251, 2253. Case: 22-2181 Document: 42 Page: 36 Filed: 05/15/2024

36 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

CONCLUSION We have considered Saha’s remaining arguments and find them unpersuasive. There is no basis to exclude prod- ucts covered by the plain text of the Order, notwithstand- ing that the same products have been given a different name or met additional specifications. Mid Continent, 725 F.3d at 1301 (“[M]erchandise facially covered by an order may not be excluded from the scope of the order unless the order can reasonably be interpreted so as to exclude it.”). To conclude otherwise would allow foreign producers and exporters to circumvent antidumping duty orders by simply stamping their products with an additional mark. That would take the teeth out of antidumping duty orders, depriving the domestic industry of the very relief from harm posed by unfairly traded imports that is contem- plated by the U.S. trade statutes. We reject such an ap- proach. For the foregoing reasons, we hold that Commerce’s Scope Ruling that imports of dual-stenciled pipes fall within the scope of the Thailand Order is reasonable and supported by substantial evidence. We reverse the Court of International Trade’s interpretation and judgment to the contrary. REVERSED COSTS Costs against Appellee. Case: 22-2181 Document: 42 Page: 37 Filed: 05/15/2024

United States Court of Appeals for the Federal Circuit ______________________

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED, Plaintiff-Appellee

v.

UNITED STATES, Defendant

WHEATLAND TUBE COMPANY, Defendant-Appellant ______________________

2022-2181 ______________________

Appeal from the United States Court of International Trade in No. 1:20-cv-00133-SAV, Judge Stephen A. Vaden. ______________________

CHEN, Circuit Judge, dissenting. A 1986 antidumping order on pipes imported from Thailand covers “certain circular welded carbon steel pipes and tubes . . . , which are commonly referred to in the in- dustry as ‘standard pipe’ or ‘structural tubing.’” Antidump- ing Duty Order on Circular Welded Carbon Steel Pipes & Tubes from Thailand: Final Scope Ruling on Line Pipe & Dual-Stenciled Standard & Line Pipe, No. A-549-502 (June 30, 2020) (Final), J.A. 40763 (Scope Ruling I); Anti- dumping Duty Order: Circular Welded Carbon Steel Pipes & Tubes from Thailand, 51 Fed. Reg. 8341, 8341 (Mar. 11, Case: 22-2181 Document: 42 Page: 38 Filed: 05/15/2024

2 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

1986) (Thailand Order). This appeal raises the question of whether the Thailand Order encompasses dual-stenciled pipes and, in particular, whether “dual-stenciled pipe” is also “commonly referred to in the industry as ‘standard pipe.’” Scope Ruling I, J.A. 40763. In my view, it is far from clear from the face of the Thailand Order whether people in the relevant industry refer to dual-stenciled pipe as standard pipe. The record reflects the existence of three types of circu- lar welded carbon steel pipes that are referred to as stand- ard pipes, line pipes, and dual-stenciled pipes. Standard pipes typically satisfy American Society for Testing & Ma- terials (ASTM) specifications A-53, A-120, or A-135, while line pipes typically satisfy the requirements of American Petroleum Institute (API) specifications API-5L or API-5X. Certain Welded Carbon Steel Pipes & Tubes from Turkey & Thailand, Inv. Nos. 701-TA-253, 731-TA-252, USITC Pub. 1810, at I-2 (Feb. 1986) (Final) (Final Injury Determi- nation); Scope Ruling I, J.A. 40764. Compared to standard pipes, line pipes are made from higher grade steel, require additional testing to ensure they satisfy API specifications, and may contain a higher content of carbon and manga- nese. Final Injury Determination at II-1. To ensure com- pliance with ASTM and API specifications, respectively, standard pipes and line pipes are “inspected and tested at various stages in the production process.” Id. at I-2, II-1. Dual-stenciled pipes—the products central to this dis- pute—are “stamped to indicate compliance with” both ASTM and API specifications. Certain Circular Welded Pipe & Tube from Brazil, India, Korea, Mexico, Taiwan, Thailand & Turkey, Inv. Nos. 701-TA-253, 731-TA-132, -252, -271, -273, -532 to -534, -536, USITC Pub. 4754, at 6 (Jan. 2018) (Fourth Sunset Review). The Department of Commerce (Commerce) and the Court of International Trade (Trade Court) vigorously con- test how to answer the question of whether the Thailand Order covers such dual-stenciled pipes, with Commerce Case: 22-2181 Document: 42 Page: 39 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 3

insisting that the Thailand Order’s reference to “standard pipe” covers dual-stenciled pipes, and the Trade Court maintaining the opposite. Scope Ruling I, J.A. 40775–78; Saha Thai Steel Pipe Pub. Co., Ltd. v. United States, 547 F. Supp. 3d 1278, 1291–92 (Ct. Int’l Trade 2021) (Saha I); An- tidumping Duty Order on Circular Welded Carbon Steel Pipes, No. A-549-502 (Jan. 6, 2022) (Final), J.A. 58–65 (Scope Ruling II); Saha Thai Steel Pipe Pub. Co., Ltd. v. United States, 592 F. Supp. 3d 1299, 1305 (Ct. Int’l Trade 2022) (Saha II). I agree with the Trade Court’s position and thus would have affirmed its decisions in both Saha I and Saha II. The plain language of the Thailand Order is unclear as to whether the relevant industry commonly refers to dual- stenciled pipes as standard pipes. That is, does dual-sten- ciled pipe go by two different names or just one? That am- biguity requires us to consider the interpretative materials under 19 C.F.R. § 351.225(k)(1) (2020), i.e., the (k)(1) ma- terials. These (k)(1) materials contain substantial evidence supporting only the conclusion that the Thailand Order does not cover dual-stenciled pipes. For example, among numerous other pieces of evidence from the (k)(1) materials that support the Trade Court’s conclusion that the Thai- land Order excludes dual-stenciled pipes, the International Trade Commission’s (ITC) reviews of antidumping orders for circular welded pipes—including the Thailand Order— indicated that the Thailand Order does not cover dual- stenciled pipes, expressly stating that “dual-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.” Certain Circular Welded Pipe & Tube from Brazil, India, Korea, Mexico, Taiwan, Thailand & Turkey, Inv. Nos. 701-TA-253, 731-TA-132, -252, -271, -273, -532 to -534, -536, USITC Pub. 4333, at 8 (June 2012) (Third Sun- set Review) (emphasis added); see Fourth Sunset Review at 6–7. I, therefore, respectfully dissent. Case: 22-2181 Document: 42 Page: 40 Filed: 05/15/2024

4 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

I. THE PLAIN LANGUAGE OF THE THAILAND ORDER’S SCOPE “[T]he question of whether the unambiguous terms of [an antidumping order] control the inquiry, or whether some ambiguity exists, is a question of law that we review de novo.” OMG, Inc. v. United States, 972 F.3d 1358, 1363 (Fed. Cir. 2020) (first alteration in original) (quoting Me- ridian Prods., LLC v. United States, 851 F.3d 1375, 1382 (Fed. Cir. 2017)). “[W]e consider ambiguity in the context of the merchandise at issue in this case.” Id. at 1364 (citing 19 C.F.R. § 351.225(a)). The Thailand Order requires the covered merchandise to be “commonly referred to in the industry as ‘standard pipe’ or ‘structural tubing’”—the “commonly referred to” re- quirement. Scope Ruling I, J.A. 40763. The appellant Wheatland Tube Company, Commerce, and the majority simply assume this requirement covers any pipe having the same certification as “standard pipe.” Appellant’s Opening Br. 21–22; Scope Ruling I, J.A. 40775; Maj. Op. 28; see also Oral Arg. 3:22–3:35 (available at https://oralarguments.cafc.uscourts.gov/de- fault.aspx?fl=22-2181_11072023.mp3). But neither the “commonly referred to” requirement nor any part of the Thailand Order speaks directly to the certifications of the covered merchandise; instead, the Thailand Order simply mandates that the pipes are “commonly referred to in the industry as ‘standard pipe.’” Scope Ruling I, J.A. 40763. Although I agree with the majority that one reasonable view is that this requirement encompasses any pipe certi- fied as standard pipe, including dual-stenciled pipes, Maj. Op. 28, I believe an equally reasonable view is that this re- quirement encompasses only pipes commonly called “standard pipe” and that dual-stenciled pipes commonly go by a different naming convention: “dual-stenciled pipe.” Moreover, it seems at least reasonably plausible that “standard pipe” would be a confusing misnomer for dual- stenciled pipe that provides an incomplete and misleading understanding of the nature of dual-stenciled pipe. I Case: 22-2181 Document: 42 Page: 41 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 5

accordingly would have held that the Thailand Order is ambiguous as to whether dual-stenciled pipes are covered. The majority says little as to the order’s “commonly re- ferred to” requirement, asserting that “meeting an addi- tional specification, namely API line pipe specification(s), does not strip away the qualification of [dual-stenciled] pipes as standard pipes.” Maj. Op. 28. It is true, as the majority notes, that the Thailand Order does not contain any language expressly excluding dual-stenciled pipes. Id. at 29. But this is not dispositive. Cf. Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1096 (Fed. Cir. 2002) (“Com- merce cannot find authority in an order based on the theory that the order does not deny authority.”). Though the Thai- land Order does not expressly exclude dual-stenciled pipes, the “commonly referred to” requirement nonetheless is open to interpretation as to what types of pipes may be in- cluded. Cf. Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1301 (Fed. Cir. 2013) (“[O]rders cannot be ex- tended to include merchandise that is not within the scope of the order as reasonably interpreted . . . .”); Duferco Steel, 296 F.3d at 1095–96 (explaining that an order, which did not expressly exclude certain merchandise, could not “rea- sonably be interpreted to include” that merchandise). The majority’s interpretation of the Thailand Order disregards dual-stenciled pipes’ additional certification to API specifications. Because this additional certification could change how the industry commonly refers to such pipes, I do not believe we can determine, as a matter of law, whether this interpretation is unreasonable from merely looking at the plain language of the Thailand Order. Me- ridian Prods., 851 F.3d at 1381–82 (describing that while “we grant Commerce ‘substantial deference’ with regard to its interpretation of its own antidumping duty and coun- tervailing duty orders,” this deferential review is tempered by the fact that “the question of whether the unambiguous terms of a scope control the inquiry, or whether some am- biguity exists, is a question of law that we review de novo”). Case: 22-2181 Document: 42 Page: 42 Filed: 05/15/2024

6 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

In the present case, Commerce could have characterized the covered pipes in terms of certifications, but, for what- ever reason, it did not. The Thailand Order instead re- quires an inquiry into what “standard pipe” refers to in industry circles. The tariff numbers listed in the Thailand Order call further attention to the ambiguity in its plain language. See Scope Ruling I, J.A. 40763. According to the majority, these tariff numbers cannot reasonably be read to exclude dual-stenciled pipes. Maj. Op. 29. This is because, the ma- jority explains, the Thailand Order specifies that the “writ- ten description of the merchandise subject to the order is dispositive.” Id. (quoting Scope Ruling I, J.A. 40763). Alt- hough I agree with the majority that these tariff numbers cannot override any dispositive written description else- where in the order, the Thailand Order, in my view, does not preclude the list of tariff numbers from being probative of whether the written description is ambiguous and of whether the “commonly referred to” requirement encom- passes dual-stenciled pipes. See Mid Continent Nail, 725 F.3d at 1298, 1305 (permitting Commerce to interpret an antidumping order in light of the listed tariff numbers, not- withstanding the order expressly stating “[w]hile the HTSUS subheadings are provided for convenience and cus- toms purposes, the written description of the scope of [the order] is dispositive” (alterations in original) (quoting No- tice of Antidumping Duty Order: Certain Steel Nails from the People’s Republic of China, 73 Fed. Reg. 44961, 44961– 62 (Aug. 1, 2008))). The listed tariff numbers do not cover dual-stenciled pipes, and this list does not include the num- bers under which dual-stenciled pipes would have been im- ported at the time the Thailand Order was issued. Saha I, 547 F. Supp. 3d at 1293. These tariff numbers further sig- nify that the written description is unclear as to whether the Thailand Order encompasses dual-stenciled pipes. Certification and name are two different concepts. An additional certification can change the name we call Case: 22-2181 Document: 42 Page: 43 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 7

something. 1 The majority’s perspective is that the “com- monly referred to” requirement of the Thailand Order can only be reasonably understood to encompass dual-stenciled pipes in spite of the fact that dual-stenciled pipes possess API certifications that standard pipes do not have. But an equally reasonable perspective is that this requirement ex- cludes dual-stenciled pipes because the industry does not commonly refer to dual-stenciled pipes as standard pipe in view of the additional API certifications of dual-stenciled pipes. The majority regards such a possibility as “unrea- sonable.” Maj. Op. 29. I disagree and thus would have held that the Thailand Order is ambiguous as to whether it co- vers dual-stenciled pipes. Meridian Prods., 851 F.3d at 1381 n.7 (“The relevant scope terms are ‘unambiguous’ if they have ‘a single clearly defined or stated meaning.’” (quoting Unambiguous, Webster’s Third New Interna- tional Dictionary of the English Language Unabridged (1986))). We therefore must consult the (k)(1) materials to determine whether the Thailand Order excludes or in- cludes dual-stenciled pipes. II. THE (K)(1) MATERIALS If the language of an antidumping order is ambiguous, Commerce turns to the regulatory history of the order, i.e., the (k)(1) materials, including the descriptions of the mer- chandise contained in the petition, the initial investigation, and the determinations of Commerce and the ITC. 19 C.F.R. § 351.225(k)(1)(i); Mid Continent Nail, 725 F.3d at 1 In an example relevant to the jurisdiction of this court, those who have completed the registration require- ments of the U.S. Patent and Trademark Office (PTO) may be called “patent agents.” When patent agents also com- plete the requirements of a state bar, they may be called “patent attorneys.” But even though patent attorneys have completed the PTO registration requirements, patent at- torneys are generally not called patent agents. Case: 22-2181 Document: 42 Page: 44 Filed: 05/15/2024

8 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

1302. Commerce’s analysis of the (k)(1) materials “pro- duces ‘factual findings reviewed for substantial evidence.’” United Steel & Fasteners, Inc. v. United States, 947 F.3d 794, 799 (Fed. Cir. 2020) (quoting Meridian Prods., 851 F.3d at 1382). Here, substantial evidence does not support Commerce’s determination in Scope Ruling I that the Thai- land Order covers dual-stenciled pipes and instead sup- ports only Commerce’s determination in Scope Ruling II that the Thailand Order does not cover dual-stenciled pipes. A. Commerce in Scope Ruling I failed to offer any evi- dence from the (k)(1) materials affirmatively supporting a finding of inclusion. Commerce at best attacked the evi- dence proffered by the plaintiff Saha Thai Steel Pipe Public Company Ltd. (Saha) in support of a finding of exclusion. See J.A. 40776–78. But despite adducing no affirmative ev- idence supporting inclusion, Commerce found the Thai- land Order encompassed dual-stenciled pipes. Id. at 40778. The majority adopts the same erroneous line of reason- ing, rebuffing each piece of evidence Saha and the Trade Court offered in support of a finding of exclusion but then failing to counter with any evidence in support of inclusion, short of a stray reference in the ITC’s reviews of antidump- ing orders on circular welded pipes—discussed in greater detail below—that acknowledged the reviewed orders had varying express exclusions. See Maj. Op. 29–35. In doing so, the majority also overlooks clear evidence to the con- trary in which the ITC unequivocally indicated that “dual- 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; see Fourth Sunset Review at 6–7. Despite the dearth of evi- dence in support of inclusion, the majority concludes “that the (k)(1) materials support Commerce’s reasonable Case: 22-2181 Document: 42 Page: 45 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 9

interpretation . . . and that Saha’s proposed exclusion lacks support.” Maj. Op. 35. This conclusion seems rooted in the majority’s earlier determination that the “commonly referred to” requirement unambiguously covers dual-sten- ciled pipe. See id. at 31–32 (“The [(k)(1) materials] there- fore support[] Commerce’s interpretation of the scope of ‘standard pipe[s]’ in the [Thailand Order].” (third altera- tion in original) (quoting Scope Ruling I, J.A. 40763)). But as discussed above, I believe the plain language of the Thailand Order is ambiguous. Because nothing in the (k)(1) materials appears to affirmatively suggest the Thai- land Order includes dual-stenciled pipes, I agree with the Trade Court’s assessment that nothing in the (k)(1) mate- rials supports Commerce’s determination in Scope Ruling I that the Thailand Order covers dual-stenciled pipes. Saha I, 547 F. Supp. 3d at 1299 (“[T]he absence of evidence is indeed evidence of absence. Substantial evidence does not support the Commerce Department's scope determina- tion.”). B. The (k)(1) materials in fact provide numerous examples affirmatively supporting a finding that the Thailand Order excludes dual-stenciled pipes. To start, the initial investi- gation and injury determination for the Thailand Order provide substantial evidence backing a finding of exclusion. The majority contends that “the petitioners’ partial-with- drawal statement [before Commerce issued the Thailand Order] made no reference to, let alone excluded, dual-sten- ciled pipes.” Maj. Op. 33. I disagree with the majority’s reading of these materials and, in fact, believe these mate- rials affirmatively suggest the Thailand Order excludes dual-stenciled pipe imported as line pipe. First, the petitioners’ withdrawal of tariff codes under which dual-stenciled pipes were imported at the time of the final order—namely, Tariff Schedules of the United States (TSUS) (the precursor to the HTSUS) numbers 610.3208 Case: 22-2181 Document: 42 Page: 46 Filed: 05/15/2024

10 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

and 610.3209—suggests that Commerce’s deletion of these same tariff codes in the final antidumping order was delib- erate. Saha I, 547 F. Supp. 3d at 1295. As the Trade Court recounted, the initial petition underlying the Thailand Or- der requested investigation of pipes imported under vari- ous TSUS numbers, including 610.3208 and 610.3209. Id. The petitioners subsequently withdrew their “petitions in- sofar as they concern[ed] line pipe, TSUS numbers 610.3208 and 3209.” Id. (quoting J.A. 40612). As a result, the ITC exclusively evaluated injury resulting from stand- ard pipe and did not evaluate injury from any pipes import- able under the withdrawn tariff numbers—including both line pipe and dual-stenciled pipe imported as line pipe. Id. This backdrop indicates that Commerce intentionally omit- ted the tariff codes associated with dual-stenciled pipes in its final antidumping order, thereby supporting a finding that the Thailand Order excludes dual-stenciled pipes. Id. Second, as evidenced by their subsequent investiga- tions, Commerce and the ITC understood the difference be- tween the given name for a pipe and the certifications associated with that pipe. Commerce described its investi- gation scope by stating that “[t]hese products, commonly referred to in the industry as standard pipe or structural tubing, are produced to various ASTM specifications, most notably A-152, A-53 or A-135,” and the ITC described its investigation scope in a similar manner. Certain Circular Welded Carbon Steel Pipes & Tubes from Thailand; Initia- tion of Antidumping Duty Investigation, 50 Fed. Reg. 12068, 12069 (Mar. 27, 1985); Final Injury Determination at I-1 to I-2. Put differently, these scope descriptions re- ferred to both a name of a pipe (“standard pipe”) and ASTM specifications (“A-152,” “A-53,” “A-135”). Yet, Commerce’s final antidumping order did not refer to the ASTM specifi- cations, instead mentioning only the name of the covered pipe, i.e., “standard pipe.” This omission suggests Com- merce knew how to define the scope of the Thailand Order in terms of certifications to the ASTM specifications but Case: 22-2181 Document: 42 Page: 47 Filed: 05/15/2024

SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US 11

declined to do so. The majority nevertheless interprets the “commonly referred to” requirement in the Thailand Order as defining the certifications of the covered merchandise. This interpretation is contrary to the evidence from Com- merce’s and the ITC’s investigations leading up to the final antidumping order. For these reasons, as the Trade Court found, the (k)(1) materials for the initial investigation and the injury deter- mination support the conclusion that the Thailand Order excludes dual-stenciled pipe imported as line pipe. C. The ITC’s four subsequent sunset reviews of the Thai- land Order—which no party disputes are (k)(1) materials— support a finding of exclusion. See generally Certain Pipe & Tube from Argentina, Brazil, Canada, India, Korea, Mex- ico, Singapore, Taiwan, Thailand, Turkey & Venezuela, Inv. Nos. 701-TA-253, 731-TA-132, -252, -271, -273, -276, -277, -296, -409, -410, -532 to -534, -536, -537, USITC Pub. 3316 (July 2000) (First Sunset Review); Certain Pipe & Tube from Argentina, Brazil, India, Korea, Mexico, Tai- wan, Thailand & Turkey, Inv. Nos. 701-TA-253, 731-TA- 132, -252, -271, -273, -409, -410, -532 to -534, -536, USITC Pub. 3867 (July 2006) (Second Sunset Review); Third Sun- set Review; Fourth Sunset Review. The First Sunset Review and Second Sunset Review re- flect the ITC’s understanding that standard pipes are dis- tinct from dual-stenciled pipes. For example, in measuring the discernible adverse impact of potential revocation of the antidumping order for Mexican imports, the Second Sunset Review rejected the argument that multiple-sten- ciled line pipe that “satisfie[d] ASTM specifications for [cir- cular welded pipe]” would affect the same industry as a “product that satisfie[d] ASTM specifications but not API specifications.” Second Sunset Review at 13 n.66. Accord- ing to the ITC, “multiple-stenciled line pipe requires [more] steel than [circular welded pipe] to meet [API] Case: 22-2181 Document: 42 Page: 48 Filed: 05/15/2024

12 SAHA THAI STEEL PIPE PUBLIC COMPANY LIMITED v. US

specifications applicable to line pipe. At 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.” Id. As the Trade Court explained, this discussion demon- strates that the ITC recognized that dual-stenciled pipes and pipes singularly certified to ASTM specifications (i.e., standard pipes) affected different industries and thus con- sidered dual-stenciled pipes to be distinct from standard pipes. See Saha I, 547 F. Supp. 3d at 1297. Moreover, the First Sunset Review and the Second Sun- set Review acknowledged that President Clinton’s safe- guard duties—imposed on imports of line pipes from certain countries—encompassed dual-stenciled pipes even though President Clinton’s proclamation initiating these duties expressly mentioned only line pipe, not dual-sten- ciled pipe. See First Sunset Review at 28; Second Sunset Review at OVERVIEW-5 n.16; Proclamation 7274: To Fa- cilitate Positive Adjustment to Competition from Imports of Certain Circular Welded Carbon Quality Line Pipe, 65 Fed. Reg. 9193, 9193–94 (Feb. 18, 2000). While I agree with the majority that the safeguard duties “represent a different trade remedy addressing line pipes,” Maj. Op. 35, the ITC’s acknowledgement that these duties covered dual-stenciled pipes, notwithstanding the absence of express language in the proclamation, reflects the ITC’s understanding that dual-stenciled pipes are closer in kind to line pipes than to standard pipes. The Third Sunset Review and the Fourth Sunset Re- view further confirm that the ITC regarded dual-stenciled pipes to be distinct from standard pipes. The Third Sunset Review—in defining the scope of the orders under review— explicitly described that “dual-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 Fourth Sunset Review de- scribed the scope of the orders under review in a nearly Case: 22-2181 Document: 42 Page: 49 Filed: 05/15/2024

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identical manner. Fourth Sunset Review at 6–7. As the Trade Court determined, “[b]oth statements are unquali- fied and give no indication that the scope language does not apply to the Thailand Order.” Saha I, 547 F. Supp. 3d at 1298. The majority fails to engage with these statements, in- stead placing outsized weight on express exclusions that appear in other antidumping orders covered in the sunset reviews but that do not appear in the Thailand Order. Maj. Op. 34–35. For instance, as the majority observes, anti- dumping orders for Brazil, Korea, Mexico, and Venezuela expressly excluded dual-stenciled pipes, stating that “[s]tandard 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 these orders.” Id. at 34 (emphases omitted) (quoting Notice of Antidumping Or- ders: Certain Circular Welded Non–Alloy Steel Pipe from Brazil, the Republic of Korea, Mexico & Venezuela, 57 Fed. Reg. 49453, 49453 (Nov. 2, 1992)). But in addition to ex- pressly excluding dual-stenciled pipes, these orders ex- pressly excluded “line pipe, oil country tubular goods, boiler tubing, mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished conduit.” Notice of Antidumping Orders, 57 Fed. Reg. at 49453. These other orders, as the majority seems to acknowledge, at best con- firm that the Thailand Order and these other orders do not contain the same express exclusions. 2 Maj. Op. 34–35. I

2 To the extent the majority argues that the express exclusion of dual-stenciled pipes in these other orders af- firmatively establish that the Thailand Order covers dual- stenciled pipes because the other orders expressly exclude dual-stenciled pipes while the Thailand Order contains no express exclusions, such an argument would be logically in- consistent with the undisputed understanding that the Thailand Order excludes line pipes. These other orders Case: 22-2181 Document: 42 Page: 50 Filed: 05/15/2024

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fail to see, however, how these express exclusions preclude the Thailand Order from being interpreted to exclude dual- stenciled pipes, particularly in view of the ITC’s direct statements in the Third Sunset Review and Fourth Sunset Review averring that the covered orders exclude dual-sten- ciled pipes. For these reasons, I agree with the Trade Court that the ITC’s sunset reviews further support a finding that the Thailand Order excludes dual-stenciled pipes. D. In view of the foregoing, I would have found that the (k)(1) materials do not provide substantial evidence sup- porting Commerce’s view in Scope Ruling I that the Thai- land Order includes dual-stenciled pipes. Furthermore, I would have found that the (k)(1) materials provide sub- stantial evidence supporting Commerce’s determination under protest in Scope Ruling II that the Thailand Order excludes dual-stenciled pipes. CONCLUSION Accordingly, I would have affirmed the Trade Court’s decisions in both Saha I and Saha II. I respectfully dis- sent.

contain express exclusions of line pipes while the Thailand Order does not, but no one contends that the Thailand Or- der would accordingly include line pipes. Oral Arg. 23:20– 23:27.