Bell Supply Company, LLC v. United States , 888 F.3d 1222 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
BELL SUPPLY COMPANY, LLC,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant
BOOMERANG TUBE LLC, TMK IPSCO TUBULARS,
V & M STAR L.P., WHEATLAND TUBE COMPANY,
MAVERICK TUBE CORPORATION, UNITED
STATES STEEL CORPORATION,
Defendants-Appellants
______________________
2017-1492, 2017-1495, 2017-1504
______________________
Appeals from the United States Court of International
Trade in No. 1:14-cv-00066-CRK, Judge Claire R. Kelly.
______________________
Decided: April 25, 2018
______________________
DONALD CAMERON, JR., Morris, Manning & Martin,
LLP, Washington, DC, argued for plaintiff-appellee. Also
represented by EUGENE DEGNAN, MARY HODGINS, JULIE
MENDOZA, BRADY MILLS, R. WILL PLANERT.
JOHN W. BOHN, Schagrin Associates, Washington, DC,
argued for defendants-appellants Boomerang Tube LLC,
2 BELL SUPPLY COMPANY, LLC v. UNITED STATES
TMK IPSCO Tubulars, V & M Star L.P., Wheatland Tube
Company. Also represented by ROGER BRIAN SCHAGRIN,
CHRISTOPHER CLOUTIER, PAUL WRIGHT JAMESON.
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Wash-
ington, DC, argued for defendant-appellant Maverick
Tube Corporation. Also represented by ALAN H. PRICE,
TESSA V. CAPELOTO, ADAM MILAN TESLIK.
JOSEF ANSORGE, Quinn Emanuel Urquhart & Sulli-
van, LLP, Washington, DC, argued for defendant-
appellant United States Steel Corporation. Also repre-
sented by DEBBIE LEILANI SHON, JONATHAN GORDON
COOPER, KELSEY RULE.
______________________
Before LOURIE, CHEN, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Boomerang Tube LLC, TMK IPSCO Tubulars, V & M
Star L.P., Wheatland Tube Company, Maverick Tube
Corporation, and United States Steel Corporation (collec-
tively, Domestic Steel Companies) appeal the U.S. Court
of International Trade’s final judgment in favor of Bell
Supply Company, LLC. The Trade Court affirmed the
U.S. Department of Commerce’s determination that
certain imported oil country tubular goods (OCTG), fabri-
cated as unfinished OCTG in the People’s Republic of
China and finished in other countries, were not subject to
the antidumping and countervailing duty orders covering
OCTG imported from China. The Trade Court also af-
firmed Commerce’s determination that OCTG finished in
third countries do not meet the requirements for circum-
vention under 19 U.S.C. § 1677j. Because we conclude
that the Trade Court improperly proscribed Commerce
from using the substantial transformation analysis to
determine the country of origin for imported OCTG, we
BELL SUPPLY COMPANY, LLC v. UNITED STATES 3
vacate the Trade Court’s decision and remand for further
proceedings.
I
The Tariff Act of 1930, as amended, allows Commerce
to impose antidumping and countervailing duties on
merchandise from foreign countries. 19 U.S.C. §§ 1671,
1673. Antidumping duties (AD) provide relief from mar-
ket distortions caused by foreign producers who sell their
merchandise in the United States for less than fair mar-
ket value, whereas countervailing duties (CVD) seek to
address government subsidies to foreign producers.
Allegheny Ludlum Corp. v. United States, 287 F.3d 1365,
1368 (Fed. Cir. 2002).
An AD or CVD investigation typically starts with a
petition filed by a domestic industry. During the investi-
gation, Commerce determines whether the subject mer-
chandise is being sold for less than fair value or has been
subsidized by foreign governments. Duferco Steel, Inc. v.
United States, 296 F.3d 1087, 1089 (Fed. Cir. 2002). The
U.S. International Trade Commission determines wheth-
er “the imported merchandise in question either material-
ly injures or threatens to materially injure American
domestic industry.” Allegheny, 287 F.3d at 1368. Com-
merce will issue an AD or CVD order if the investigation
reveals dumping or foreign subsidies that injure Ameri-
can domestic industry. Duferco Steel, 296 F.3d at 1089.
After Commerce issues an AD or CVD order, ques-
tions may arise about the scope of the order. To resolve
these questions, Commerce conducts scope inquiries to
clarify which goods are subject to its AD and CVD orders.
19 C.F.R. § 351.225(a). Commerce has established factors
under 19 C.F.R. § 351.225(k) for determining whether
specific articles fall within the scope of an existing order.
This appeal involves Commerce’s scope inquiry re-
garding AD and CVD orders covering OCTG from China.
4 BELL SUPPLY COMPANY, LLC v. UNITED STATES
OCTG are steel pipes and tubes used in oil drilling. To
make OCTG, steel is first made into “green tube,” which
is a steel tube that must be finished before it can meet
specifications for oil and gas well applications. The
finishing process for green tubes typically includes heat
treatment, threading, coating, and other processes.
In 2010, Commerce issued AD and CVD orders (the
Orders) on OCTG from China. The scope of the Orders is
defined as follows:
The scope of this order consists of certain OCTG
. . . whether finished (including limited service
OCTG products) or unfinished (including green
tubes and limited service OCTG products), wheth-
er or not thread protectors are attached. The
scope of the order also covers OCTG coupling
stock. Excluded from the scope of the order are
casing or tubing containing 10.5 percent or more
by weight of chromium; drill pipe; unattached
couplings; and unattached thread protectors.
Certain Oil Country Tubular Goods from the People’s
Republic of China: Amended Final Determination of Sales
at Less Than Fair Value and Antidumping Duty Order,
75 Fed. Reg. 28,551–54 (May 21, 2010).
Subsequently, U.S. Customs and Border Protection
(Customs) determined that OCTG made with unfinished
OCTG from China, but finished in Korea or Japan, had a
country of origin of Korea or Japan. In particular, Cus-
toms noted that “heat treating has been held to substan-
tially transform green tubes into oil well tubing.”
J.A. 533. This decision prompted several domestic steel
companies to ask Commerce to clarify whether the scope
of the Orders cover finished OCTG made from “green
tubes” produced in China, but finished in another country.
In response to this request, Commerce issued a Final
Scope Ruling in February 2014 (the 2014 Scope Ruling),
BELL SUPPLY COMPANY, LLC v. UNITED STATES 5
which found that OCTG finished in third countries are
still within the scope of the Orders. In reaching this
conclusion, Commerce applied the substantial transfor-
mation analysis. But contrary to Customs’ decision,
Commerce determined that green tubes are not substan-
tially transformed during the finishing process, even if
that process includes heat treatment. Accordingly, Com-
merce ruled that OCTG finished in third countries from
Chinese green tubes are still subject to the Orders.
Bell Supply is a U.S. steel importer that purchases
green tubes from China and arranges for them to be heat
treated and finished in Indonesia. It challenged Com-
merce’s 2014 Scope Ruling at the Trade Court and argued
that the scope of the Orders should not extend to OCTG
imported from third countries like Indonesia, even if they
are made from green tubes produced in China. Bell
Supply noted that the language of the Orders does not
include OCTG imported from Indonesia, and argued that
Commerce cannot use the substantial transformation
analysis to sweep in OCTG from Indonesia. Instead, Bell
Supply argued that Commerce must conduct a circumven-
tion inquiry under 19 U.S.C. § 1677j before it can impose
AD or CVD on products imported from countries not
specifically identified in the Orders.
The Trade Court agreed with Bell Supply and found
that Commerce failed to properly interpret the Orders in
its 2014 Scope Ruling. The Trade Court emphasized that,
because “the words of an order must serve as a basis for
the inclusion of merchandise within the scope of the
order,” merchandise is outside an order unless the words
of the order support its inclusion. J.A. 17–18.
The Trade Court also held that Commerce should not
have applied the substantial transformation analysis to
evaluate whether OCTG imported from Indonesia was
within the scope of the Orders. The court noted that the
circumvention inquiry under § 1677j provides a specific
6 BELL SUPPLY COMPANY, LLC v. UNITED STATES
standard for determining whether foreign producers are
trying to evade AD or CVD orders by completing or as-
sembling merchandise in third countries. Thus, if Com-
merce believed that importers were circumventing the
Orders by finishing green tubes in third countries like
Indonesia, then “Commerce must apply the statute Con-
gress enacted for that purpose and must satisfy the
enumerated requirements within the statute.” J.A. 22.
Accordingly, the Trade Court issued a remand to Com-
merce to “identify actual language from the scope of the
Orders that could be reasonably interpreted to include
OCTG finished in third countries.” J.A. 35.
On remand, Commerce again found the Orders cover
OCTG made from Chinese green tubes, even if they are
finished in a third country. But this time, Commerce
sought to rely on the language of the Orders instead of the
substantial transformation analysis. Its decision rea-
soned that
Both unfinished OCTG and finished OCTG are in-
scope merchandise; that is, they are both “OCTG”
within the plain meaning of the scope language.
Therefore, contrary to Bell Supply’s arguments,
the plain language of the scope of the Orders ex-
pressly covers unfinished Chinese OCTG, and
that language can reasonably be interpreted to in-
clude unfinished OCTG, even when finished in a
third country. The process of finishing does not
remove the product from the plain language of the
scope, which includes both unfinished and fin-
ished OCTG.
J.A. 3298. Bell Supply again appealed Commerce’s Rede-
termination Pursuant to Remand to the Trade Court.
On appeal, the Trade Court found that Commerce still
erred in its interpretation of the Orders. The court ob-
served that “[t]he scope language makes no mention of
whether green tubes manufactured in China remain
BELL SUPPLY COMPANY, LLC v. UNITED STATES 7
subject to the Orders even if the green tubes undergo
further processing in a third country. Commerce has not
identified any specific language from the Orders that
supports such a broad reading of the scope.” J.A. 56.
Because the Orders do not address third country pro-
cessing, “Commerce cannot use its failure to expressly
include third country processing in writing the scope of
the Orders and rely upon its own silence to further sup-
port its current interpretation.” J.A. 59. The Trade Court
remanded to Commerce for a second redetermination.
In the Final Results of Second Redetermination Pur-
suant to Remand, Commerce concluded that OCTG fin-
ished in third countries are not subject to the Orders. In
doing so, Commerce relied on the factors under 19 C.F.R.
§ 351.225(k). Applying these factors, Commerce found “no
information under a . . . § 351.225(k)(1) analysis to indi-
cate that OCTG finished in third countries is subject to
the scope of the . . . Orders.” J.A. 3348. Nor did the fac-
tors under 19 C.F.R. § 351.225(k)(2) “indicate whether
OCTG finished in third countries falls within the Orders.”
J.A. 3348. Thus, Commerce found that the language of
the Orders does not cover OCTG finished in third coun-
tries.
Commerce also concluded that OCTG made with
green tubes from China do not meet the standards for
circumvention under § 1677j. Commerce determined that
“the process of assembly or completion performed . . . in
Indonesia is neither minor nor insignificant.” J.A. 3362.
Instead, the finishing process adds significant value to the
final value of the finished OCTG. Accordingly, Commerce
found that OCTG imported from Indonesia cannot meet
the requirements for circumvention.
The Domestic Steel Companies appealed Commerce’s
scope ruling to the Trade Court, which sustained the
results of Commerce’s Second Redetermination. Applying
the same reasoning from its earlier decisions, the court
8 BELL SUPPLY COMPANY, LLC v. UNITED STATES
concluded that the language of the Orders does not in-
clude OCTG finished in third countries. The court also
found that Commerce properly concluded that OCTG
finished in third countries do not meet the requirements
for circumvention under § 1677j.
The Domestic Steel Companies appeal the Trade
Court’s decision affirming Commerce’s Final Results of
Second Redetermination Pursuant to Remand. We have
jurisdiction under 28 U.S.C. § 1295(a)(5).
II
In reviewing the Trade Court’s decision, “we step into
the shoes of the [Trade Court] and apply the same defer-
ential ‘substantial evidence’ standard of review that it
applied to its review of Commerce’s determination.”
Walgreen Co. of Deerfield, Il. v. United States, 620 F.3d
1350, 1354 (Fed. Cir. 2010). We uphold Commerce’s
determination unless it is unsupported by substantial
evidence on the record, or otherwise not in accordance
with law. Global Commodity Grp. LLC v. United States,
709 F.3d 1134, 1138 (Fed. Cir. 2013).
A
We start by addressing the Domestic Steel Compa-
nies’ argument that the imported OCTG can be consid-
ered unfinished OCTG from China. Domestic Steel
companies contend that “[f]rom the time the green tubes
left the factory gates in China to the time the processed
products entered the United States, they were [covered]
OCTG.” Maverick Tube Corp. Br. 29–30; see also U.S.
Steel Corp. Br. at 15–18. We disagree. The imported
merchandise is indisputably finished OCTG, and cannot
be categorized as unfinished OCTG.
AD and CVD orders only encompass merchandise
identified in the language of the Order. Duferco Steel, 296
F.3d at 1097. In Duferco Steel, we held that Commerce
can only include an imported article within the scope of
BELL SUPPLY COMPANY, LLC v. UNITED STATES 9
an AD or CVD order based on the actual language of the
order, not on the absence of exclusionary language. Id.
In that case, the Trade Court had found that AD and CVD
orders covered an imported article because “no language
in the . . . final orders explicitly” excluded the article. Id.
at 1089. We reversed, and explained that “Commerce
cannot find authority in an order based on the theory that
the order does not deny authority.” Id. at 1096.
In this case, the imported merchandise cannot be cat-
egorized as unfinished OCTG under the Orders because
they are brought into the United States as finished
OCTG. Domestic Steel Companies argue the merchandise
can still be categorized as unfinished OCTG because that
is how it left China, and the Orders do not require the
unfinished OCTG to be “directly imported.” But the
absence of a direct importation requirement does not
expand the scope of the Orders. The merchandise at issue
is unquestionably finished OCTG, and the language from
the Orders directed to unfinished OCTG from China
cannot be read to include a different product altogether.
B
We next consider whether the merchandise can be
considered finished OCTG from China. There is no dis-
pute that the products are finished in Indonesia before
being imported to the United States, and the Orders do
not include OCTG from Indonesia. The parties disagree
on the framework for determining whether AD or CVD
orders include products finished in a country that is not
identified in the orders. Domestic Steel Companies argue
that Commerce is entitled to rely on the substantial
transformation analysis to determine country of origin for
imported articles during scope inquiries. Conversely, Bell
Supply contends the substantial transformation analysis
would improperly expand the scope of the Orders. In-
stead, Bell Supply argues that products finished in third
10 BELL SUPPLY COMPANY, LLC v. UNITED STATES
countries are only subject to AD or CVD orders if Com-
merce finds circumvention under § 1677j.
Both the substantial transformation analysis and the
circumvention inquiry can apply to imported products
that are made in one country, but finished or assembled
in a different country. In general, the substantial trans-
formation analysis is used to determine country of origin
for an imported article. E.I. Du Pont de Nemours & Co. v.
United States, 8 F. Supp. 2d 854, 859 (Ct. Int’l Trade
1998). A substantial transformation occurs where, “as a
result of manufacturing or processing steps . . . [,] the
[product] loses its identity and is transformed into a new
product having a new name, character and use.”
Bestfoods v. United States, 165 F.3d 1371, 1373 (Fed. Cir.
1999). To determine whether there has been a substan-
tial transformation, Commerce looks to factors such as
(1) the class or kind of merchandise; (2) the nature and
sophistication of processing in the country of exportation;
(3) the product properties, essential component of the
merchandise, and intended end-use; (4) the cost of produc-
tion/value added; and (5) level of investment. J.A. 3234–
42.
Separate from the substantial transformation analy-
sis, § 1677j provides an anti-circumvention provision that
prevents importers from avoiding AD or CVD orders by
routing their merchandise through a third country.
Section 1677j(b) applies to “merchandise imported into
the United States [that] is of the same class or kind as
any merchandise produced in a foreign country that is the
subject of” an AD or CVD order, but is assembled or
completed in a third country not subject to the order. To
include such merchandise within the scope of an order,
Commerce must determine that (1) “the process of assem-
bly or completion in the foreign country . . . is minor or
insignificant,” (2) the value added in the country subject
to the AD and CVD order is a significant portion of the
total value of the merchandise, and (3) “action is appro-
BELL SUPPLY COMPANY, LLC v. UNITED STATES 11
priate under this paragraph to prevent evasion of such
order or finding.” § 1677j(b)(1)(C)–(E).
We conclude that Commerce is entitled to use the
substantial transformation analysis to determine country
of origin before resorting to the circumvention inquiry.
Where an imported article is “from” can be an inherently
ambiguous question. Because a single article can be
assembled from various components and undergo multiple
finishing steps, Commerce must have some way to deter-
mine the country of origin during scope inquiries. To that
end, “[t]he ‘substantial transformation’ rule provides a
yardstick for determining whether the processes per-
formed on merchandise in a country are of such signifi-
cance as to require that the resulting merchandise be
considered the product of the country in which the trans-
formation occurred.” E.I. Du Pont, 8 F. Supp. 2d at 858.
Accordingly, even though the imported OCTG was fin-
ished in Indonesia, it can still be considered “from China”
if the finishing process in Indonesia did not substantially
transform the product. This inquiry into where imported
articles are “from” necessarily precedes the circumvention
inquiry. Circumvention can only occur if the articles are
from a country not covered by the relevant AD or CVD
orders.
We have noted that “the substantial transformation
test is recognized and well-established in cases involving
country of origin determinations.” Target Sportswear,
Inc. v. United States, 70 F.3d 604, 605 (Fed. Cir. 1995).
Our conclusion is consistent with the reasoning of the
Trade Court’s prior decisions, which have approved of
Commerce’s reliance on the substantial transformation
analysis for merchandise finished in countries identified
by the AD or CVD order, but produced with components
from a third country. See, e.g., Appleton Papers Inc. v.
United States, 929 F. Supp. 2d 1329, 1335–36 (Ct. Int’l
Trade 2013); Advanced Tech. & Materials Co. v. United
States, No. 09-00511, 2011 WL 5191016, at *5 (Ct. Int’l
12 BELL SUPPLY COMPANY, LLC v. UNITED STATES
Trade Oct. 12, 2011). In Appleton, the Trade Court ex-
plained that “Commerce’s decision to conduct a country of
origin analysis was reasonable,” and upheld “the substan-
tial transformation analysis as a means of determining
the country of origin of merchandise produced in multiple
countries.” 929 F. Supp. 2d at 1335–36. Likewise, the
Trade Court also sustained Commerce’s substantial
transformation analysis in Advanced Technology & Mate-
rials, where the court emphasized that “the determination
of where the merchandise is produced or manufactured is
a fundamental step in the administration of the anti-
dumping laws.” 2011 WL 5191016, at *4.
In this case, however, the Trade Court concluded that
“[a] country of origin analysis utilizing the substantial
transformation test could only be applicable, if at all,
where the circumvention test of § 1677j(b) could not
apply.” J.A. 29. According to the Trade Court, § 1677j
was inapplicable in cases like Appleton because the stat-
ute does not address a situation where merchandise is
completed in the country subject to AD or CVD orders. By
contrast, the Trade Court held that “[t]he circumvention
analysis under § 1677j(b) is the required statutory
framework for analyzing the scope of an order when the
merchandise is completed or assembled in third countries
from subject merchandise or components produced in the
subject country.” J.A. 29. Here, because the imported
OCTG was finished in a third country, the Trade Court
concluded that § 1677j forecloses Commerce from relying
on the substantial transformation analysis.
We disagree with the Trade Court’s distinction be-
tween products finished in countries subject to AD or
CVD orders, and products finished in third countries. In
either scenario, Commerce is entitled to use the substan-
tial transformation analysis to determine whether an
imported article is covered by AD or CVD orders in the
first instance. If the article originates from a country
identified in the order, then Commerce need not go any
BELL SUPPLY COMPANY, LLC v. UNITED STATES 13
further. See Peer Bearing Co.-Changshan v. United
States, 986 F. Supp. 2d 1389, 1399 (Ct. Int’l Trade 2014)
(explaining that Commerce’s authority was limited to two
sources: “the scope language of the Order itself . . . and 19
U.S.C. § 1677j(b)”). On the other hand, if Commerce
applies the substantial transformation test and concludes
that the imported article has a country of origin different
from the country identified in an AD or CVD order, then
Commerce can include such merchandise within the scope
of an AD or CVD order only if it finds circumvention
under § 1677j.
The Trade Court also found that allowing Commerce
to rely on the substantial transformation analysis “would
render § 1677j superfluous” because the substantial
transformation test is “an agency-created device to
achieve the same purpose.” J.A. 30. Echoing the court’s
reasoning, Bell Supply contends that if Commerce were
allowed to apply the substantial transformation analysis,
then it would be “impossible to envision” a circumstance
where Commerce could determine that third country
processing results in a substantial transformation, but
nevertheless meets the requirements for a finding of
circumvention under § 1677j. Appellee Br. 39.
Contrary to the Trade Court’s reasoning, allowing
Commerce to apply the substantial transformation analy-
sis for scope inquiries would not render § 1677j superflu-
ous. Although the substantial transformation and
circumvention inquiries are similar, they are not identi-
cal. The substantial transformation test asks whether, as
a result of manufacturing or processing, the product “loses
its identity and is transformed into a new product having
‘a new name, character and use.’” Bestfoods, 165 F.3d at
1373 (quoting United States v. Gibson-Thomsen Co., 27
C.C.P.A. 267, 273 (1940)). However, even if a product
assumes a new identity, the process of “assembly or
completion” may still be minor or insignificant, and
undertaken for the purpose of evading an AD or CVD
14 BELL SUPPLY COMPANY, LLC v. UNITED STATES
order. For example, in its notice of supplemental authori-
ty, Appellant Maverick Tube Corporation notes that hot-
rolled steel or cold-rolled steel from China can be “sub-
stantially transformed” when it is processed into corro-
sion-resistant steel in Vietnam. See, e.g., Bell Supply Co.
LLC v. United States, No. 2017-1492, Dkt. 103 (Fed. Cir.
Dec. 11, 2017). Nevertheless, Commerce applied § 1677j
to preliminarily determine that imported corrosion-
resistant steel products from Vietnam circumvented AD
and CVD orders directed to steel products from China.
Id. at 24–33. Thus, even where an article is substantially
transformed, Commerce can still find that it is subject to
an AD or CVD order after conducting a circumvention
inquiry.
Nor do we believe that Congress enacted § 1677j to
preclude Commerce from making a country of origin
determination in scope inquiries. Bell Supply contends
that Congressional “intent would be frustrated if Com-
merce is permitted to include within an order merchan-
dise completed or assembled in a third country that does
not meet the criteria established in section 1677j.” Appel-
lee Br. 42. The legislative history of § 1677j, however,
says nothing about limiting Commerce’s ability to deter-
mine the country of origin for imported products.
To the contrary, legislative history indicates that
§ 1677j can capture merchandise that is substantially
transformed in third countries, which further implies that
§ 1677j and the substantial transformation analysis are
not coextensive. In the Conference Report accompanying
the Omnibus Trade and Competitiveness Act of 1988,
Pub. L. No. 100-418, 102 Stat. 1107 (1988), Congress
explained that § 1677j addresses situations where “parts
and components . . . are sent from the country subject to
the order to the third country for assembly or completion.”
H.R. Rep. No. 100-576, at 600 (1988). Likewise, the
Statement of Administrative Action Accompanying the
Uruguay Round Agreements Act, Pub. L. No. 103-465,
BELL SUPPLY COMPANY, LLC v. UNITED STATES 15
108 Stat. 4809 (1994), describes how foreign exporters will
attempt to “circumvent an antidumping duty order by . . .
[p]urchasing as many parts as possible from a third
country” and assembling them in the United States. H.R.
Doc. No. 103-316, at 893 (1994). Assembling off-the-shelf
electronic components may very well create a new product
that is “from the U.S.” or a third country, but such assem-
bly could still be relatively minor and undertaken with
the intention of evading AD or CVD orders. We believe
that § 1677j is meant to address these attempts at cir-
cumvention, not preclude Commerce from making a
country of origin determination in the first instance.
III
For the reasons above, we conclude that Commerce
may rely on the substantial transformation analysis to
determine whether the imported OCTG can be considered
from China. Accordingly, we vacate the Court of Interna-
tional Trade’s Decision to Sustain Commerce’s Second
Remand Results. We remand the case to the Trade Court
to determine whether Commerce properly applied the
substantial transformation analysis.
VACATED AND REMANDED