Various estimates on the width of human hairs range from .017 to .25 millimeters. An even smaller width figured in a steel duty dispute. (See: Arcelormittal Stainless Belgium v. United States and Allegheny Ludlum Corp. Federal Circuit Court of Appeals. No. 11-1578. Sept. 7)
In 1998, Allegheny Ludlum and others petitioned the Commerce Department to impose antidumping and countervailing duties on imports of stainless steel plate in coils (SSPC).
The petition employed the American Iron and Steel Institute’s definition of plate as a product 10 inches wide and 0.1875 inches and over in thickness. The petitioners noted although “the precise metric equivalent of the 0.1875 inch minimum thickness for plate products is 4.76 mm. . . petitioners believe that the general practice in the industry is to refer to plate that is 0.1875 inch thick as also 4.75 mm thick.”
Commerce initiated an antidumping duty investigation and first requested foreign producers to report actual thickness, then changed instructions and asked them to include sales of all products for which the nominal thickness was greater than or equal to 4.75 mm. It eventually imposed antidumping and countervailing duties on SSPC with the scope covering coils “254 mm or over in width and 4.75 mm or more in thickness.”
The court noted the steel industry recognizes two types of thickness. Nominal thickness is the measurement used when ordering SSPC; actual thickness is the measured thickness of the delivered product.
The court also said “because the manufacturing process is not perfect, the industry has established ‘tolerance ranges’ within which actual thicknesses are considered equivalent.”
After the duties were created, Arcelormittal Stainless Belgium (ASB) participated in three administrative reviews of the antidumping duty order. Twice Commerce allowed ASB to exclude certain “nominal thickness” steel sales, but in 2007 concluded the product was subject to duties “even if the actual thickness is less than 4.75 mm.”
The Court of International Trade upheld Commerce’s decision.
ASB appealed, arguing the plain language of the order was not ambiguous because a number, unless otherwise modified, means the actual number.
The government and Allegheny argued Commerce reasonably turned to industry custom and antidumping orders should be interpreted in the context of the industry in which the regulated merchandise is manufactured, bought, and sold.
“Both arguments have some merit,” the Federal Circuit said, but said antidumping duty orders apply to goods as imported, not ordered, and “thus, the proper context in which to interpret the scope of the antidumping duty order is the industry practice regarding delivered products”—that is, the actual thickness.
This might all seem like splitting hairs, but the court noted “Over the course of five years, Commerce repeatedly reassured ASB that nominal merchandise as such was excluded from the scope of the order. Then, without warning, Commerce reversed course.
“The Court of International Trade did not give full weight to the manifest injustice of enlarging the scope of the proceeding in this off-hand manner. To do what Commerce has done here is to invite arbitrariness and uncertainty.”
The court held “the plain meaning of the orders regarding the 4.75 mm thickness is a reference to actual thickness of product.”
Splitting hairs?
