HLDS (B) Steel SDN BHD v. United States , 2024 CIT 06 ( 2024 )

Slip Op. 24-6
UNITED STATES
COURT OF INTERNATIONAL TRADE
Court No. 21-00638
HLDS (B) STEEL SDN BHD and
HLD CLARK STEEL PIPE CO., INC.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
WELDED TUBE USA, INC.,
WHEATLAND TUBE COMPANY, and
VALLOUREC STAR L.P.,
Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[The court denies Plaintiffs’ motion for judgment on
the agency record and sustains the Commerce Depart-
ment’s final determination.]
Dated: January 23, 2024
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of
Washington, DC, argued for Plaintiffs. With him on
the briefs were Alexandra H. Salzman and Vivien J.
Wang.
Ct. No. 21-00638 Page 2
Hardeep K. Josan, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, U.S. Department of Jus-
tice of New York, NY, argued for Defendant. With her
on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General; Patricia M. McCarthy,
Director; and Claudia Burke, Assistant Director. Of
counsel on the brief was Paul K. Keith, Senior Attor-
ney, Office of the Chief Counsel for Trade Enforcement
and Compliance, U.S. Department of Commerce of
Washington, DC.
Benjamin J. Bay, Schagrin Associates of Washington,
DC, argued for Defendant-Intervenors. With him on
the brief were Roger B. Schagrin and Luke A. Meisner.
Baker, Judge: In this case, two foreign manufactur-
ers challenge the Department of Commerce’s finding
that the production of certain oil piping 1 in Brunei and
the Philippines for export to the United States circum-
vented antidumping and countervailing duty orders
covering such piping from China.2 For the reasons ex-
plained below, the court sustains the Department’s de-
termination.
1 The technical name is “welded oil country tubular goods.”
2 See 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 (Dep’t Commerce May 21, 2010); Certain
Oil Country Tubular Goods from the People’s Republic of
China: Amended Final Affirmative Countervailing Duty
Determination and Countervailing Duty Order, 75 Fed.
Reg. 3203 (Dep’t Commerce Jan. 20, 2010).
Ct. No. 21-00638 Page 3
I
To “combat circumvention of antidumping duty or
countervailing duty orders, a domestic interested
party may allege that changes to an imported product
constitute[ ] circumvention under 19 U.S.C. § 1677j.”
Tai-Ao Aluminium (Taishan) Co. v. United States, 983
F.3d 487, 489 (Fed. Cir. 2020) (cleaned up) (quoting 19
C.F.R. § 351.225(a) (2020)). “When such issues arise,
Commerce may initiate an anti-circumvention inquiry
and issue ‘scope rulings’ that ‘clarify the scope of an
order or suspended investigation with respect to par-
ticular products.’ ” Id. at 489–90 (citing 19 C.F.R.
§ 351.225(a), (g)–(j)). “Commerce may then ‘determine
that certain types of articles are within the scope of a
duty order, even when the articles do not fall within
the order’s literal scope.’ ” Id. at 490 (quoting Deacero
S.A. de C.V. v. United States, 817 F.3d 1332, 1337
(Fed. Cir. 2016), and citing 19 U.S.C. § 1677j).
One way that clever producers and importers may
seek to circumvent duty orders is to first ship a prod-
uct’s components to a third country for completion or
assembly before export to the United States. Congress
anticipated this possibility in 19 U.S.C. § 1677j(b),
which authorizes Commerce to extend the scope of
such orders to those products when, inter alia, “the
process of assembly or completion” in the third country
is “minor or insignificant,” id. § 1677j(b)(1)(C), 3 and
the value created in the home country “is a significant
3 In considering whether the process of assembly or com-
pletion is “minor or insignificant,” the statute directs the
Department to consider five criteria. See id. § 1677j(b)(2).
Ct. No. 21-00638 Page 4
portion of the total value” of the product as finally ex-
ported to this nation, id. § 1677j(b)(1)(D). Assuming
that those threshold requirements are satisfied, the
statute mandates that the Department consider cer-
tain additional factors before expanding the scope of a
duty order. See id. §§ 1677j(b)(1)(E), 1677j(b)(3).
II
A
In 2020, Commerce on its own initiative opened
“country-wide anti-circumvention inquiries to deter-
mine whether imports of certain [oil piping] completed
in Brunei and the Philippines using inputs manufac-
tured in . . . China are circumventing the antidumping
duty and countervailing duty orders” on such piping
from China. Appx03952. 4 The Department selected
four mandatory respondents, including Bruneian pro-
ducer HLDS (B) Steel Sdn Bhd and Filipino producer
HLD Clark Steel Pipe Co., Ltd. (collectively HLD).
Appx01026.
Commerce’s final determination concluded that im-
ports of oil piping assembled or completed in Brunei
and the Philippines using steel inputs from China cir-
cumvented duty orders on such piping from the latter.
Appx01000–01001. The Department accordingly in-
4 Information available to the Department “indicate[d] that
third countries are likely processing Chinese-origin [steel]
or other significant inputs into [oil piping] before exporta-
tion to the United States.” Appx03839 n.7.
Ct. No. 21-00638 Page 5
cluded products from the former countries within the
scope of the orders applicable to China. Id.
B
HLD brought this suit under 19 U.S.C.
§§ 1516a(a)(2)(A)(ii) and (B)(vi) to challenge Com-
merce’s final determination. See ECF 8. The court has
subject-matter jurisdiction under 28 U.S.C. § 1581(c).
Three members of the domestic industry inter-
vened as defendants. ECF 20. HLD then moved for
judgment on the agency record. ECF 33; see also
USCIT R. 56.2. The government (ECF 34) and the in-
tervenors (ECF 35) opposed, HLD replied (ECF 38),
and the court then heard oral argument.
In § 1516a(a)(2) actions such as this, “[t]he court
shall hold unlawful any determination, finding, or con-
clusion found . . . to be unsupported by substantial ev-
idence on the record, or otherwise not in accordance
with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). That is, the
question is not whether the court would have reached
the same decision on the same record—rather, it is
whether the administrative record as a whole permits
Commerce’s conclusion.
Substantial evidence has been defined as more
than a mere scintilla, as such relevant evidence
as a reasonable mind might accept as adequate
to support a conclusion. To determine if substan-
tial evidence exists, we review the record as a
whole, including evidence that supports as well
as evidence that fairly detracts from the sub-
stantiality of the evidence.
Ct. No. 21-00638 Page 6
Nippon Steel Corp. v. United States, 337 F.3d 1373,
1379 (Fed. Cir. 2003) (cleaned up).
In addition, Commerce’s exercise of discretion in
§ 1516a(a)(2) cases is subject to the default standard
of the Administrative Procedure Act, which authorizes
a reviewing court to “set aside agency action, findings,
and conclusions found to be . . . arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance
with law.” 5 U.S.C. § 706(2)(A); see Solar World Amer-
icas, Inc. v. United States, 962 F.3d 1351, 1359 n.2
(Fed. Cir. 2020) (explaining that in cases reviewed un-
der 28 U.S.C. § 2640(b), “section 706 review applies
since no law provides otherwise”).
III
A
In assessing whether the “process of assembly or
completion” in a third country is “minor or insignifi-
cant,” 19 U.S.C. § 1677j(b)(1)(C), Commerce explained
that it considers, “among other things, the level of in-
vestment in the third country, the nature of the pro-
duction process in the third country, and the extent of
production facilities in the third country.” Appx01007
(citing 19 U.S.C. § 1677j(b)(2)). For purposes of these
factors, the Department compared HLD’s production
of oil piping in Brunei and the Philippines to “inte-
grated steel production mills in China.” Appx01012. It
reasoned that “[a]lthough hot-rolled steel is not in the
same class or kind of merchandise as [oil piping],”
Appx01007, HLD produced its piping from steel “and
the production of hot-rolled steel is [included in] the
production of [oil piping].” Id.
Ct. No. 21-00638 Page 7
HLD takes aim at this comparison, arguing that
Commerce should have compared it to an oil pipe pro-
ducer, not an integrated Chinese steel producer. The
company asserts that “Commerce’s conclusory remark
that the production of primary steel forms is more
complex than the production of [oil piping] is debata-
ble.” ECF 33-1, at 18. That may be, but when the fac-
tual record is debatable, the Department gets the ben-
efit of the doubt.
Setting that aside, the Federal Circuit’s recent de-
cision in Al Ghurair Iron & Steel LLC v. United States,
65 F.4th 1351 (Fed. Cir. 2023), resolves this issue. Like
HLD, the Al Ghurair plaintiff argued that “Commerce
legally erred by comparing [that company’s] invest-
ment to make [corrosion-resistant steel] with Chinese
manufacturers’ investment to make hot-rolled or cold-
rolled steel” and contended that the Department
should have compared its cost of producing corrosion-
resistant steel to Chinese corrosion-resistant produc-
ers’ cost. Id. at 1360. The court rejected that theory,
finding that “Commerce reasonably explained that its
comparison indicated what portion of the total value of
the merchandise subject to these inquiries is ac-
counted for by the last step of processing.” Id. (cleaned
up). So too here—the Department reasonably ex-
plained why it compared the production of oil piping in
Brunei and the Philippines to the Chinese production
of the steel components of that piping: “[T]he level of
investment and production facilities is much larger
and the production processes are more complex for the
production of hot-rolled steel than for the production
of [oil piping].” Appx01007.
Ct. No. 21-00638 Page 8
HLD further argues that “[o]nly recently has Com-
merce developed a practice of finding that third coun-
try producers of articles of steel not under an AD/CVD
order are circumventing an AD/CVD order on the steel
article from a different subject country because they
use hot-rolled steel from the subject country.” ECF
33-1, at 25–26. The company contends that use of the
circumvention statute in this way “is not Commerce’s
‘standard practice,’ ” id. at 27, and that the Depart-
ment “created this theory and practice of using the cir-
cumvention statute against companies sourcing hot-
rolled steel from a subject country out of whole cloth,”
id. Again, Al Ghurair resolves this issue because the
Federal Circuit found that the Department’s analysis,
and its use of the entire manufacturing process in-
stead of “just the final steps,” was consistent with the
latter’s prior determinations. 65 F.4th at 1360. While
HLD objects that “Commerce has never justified the
change in its comparison analysis” and then says that
the Department’s current practice is unreasonable,
ECF 33-1, at 35, Al Ghurair forecloses that argument. 5
5 HLD also challenges Commerce’s statement that the cost
of the production of steel “is relevant to whether a producer
would reasonably move its further processing across bor-
ders to avoid an order.” Appx01007. The company contends
that the Department previously disclaimed the relevance
of intent for purposes of anti-circumvention. See ECF 33-1,
at 17 (citing Certain Corrosion-Resistant Steel Products
from Taiwan, Issues and Decision Memorandum at 20
(Dep’t Commerce June 1, 2021)). Because Commerce pro-
vided several reasons for comparing the production of oil
piping in Brunei and the Philippines to steel production in
China, any inconsistency by the Department in this
Ct. No. 21-00638 Page 9
B
HLD next contests Commerce’s finding that the
“process of assembly or completion in Brunei or the
Philippines was minor compared to that of integrated
steel mills in China.” Appx01014. The company argues
that the statute requires the Department to determine
whether a respondent’s manufacturing processes in a
third country “are mere assembly or completion opera-
tions.” ECF 33-1, at 44 (emphasis added). It further
contends that “[o]nly if the answer is ‘yes’ ” to that
question should Commerce decide “whether the as-
sembly or completion is minor or insignificant.” Id.
(citing 19 U.S.C. § 1677j(b)(1)(B), (C)).
Relatedly, HLD asserts that its operations in Bru-
nei and the Philippines are “manufacturing,” which it
maintains is different from “assembly or completion.”
Id. at 48. According to the company, its “manufactur-
ing process turns a sheet of steel into . . . finished [oil
piping] that is ready to be put into service . . . ,” id.
at 52, a much more extensive process than mere
“screwdriver assembly operations,” id. at 45 (quoting
Statement of Administrative Action Accompanying
the Uruguay Round Agreements Act (SAA), H.R. Doc.
103–316, vol. 1, 1994 U.S.C.C.A.N. 4040, 4216). 6
passing remark is harmless error. Cf. SolarWorld Ameri-
cas, 962 F.3d at 1359 (Commerce’s alleged error was harm-
less when it “had essentially no impact on [a respondent’s]
antidumping duty rate”).
6 The SAA “shall be regarded as an authoritative expres-
sion by the United States concerning the interpretation
Ct. No. 21-00638 Page 10
The statute, however, does not “contemplate a dis-
tinction between manufacturing and completion or as-
sembly.” Macao Com. & Indus. Spring Mattress Mfr.
v. United States, 437 F. Supp. 3d 1324, 1329 (CIT
2020). We know this because the statute equates “com-
pletion or assembly” with “production process.” See 19
U.S.C. § 1677j(b)(2)(C) (directing Commerce, “[i]n de-
termining whether the process of assembly or comple-
tion is minor or insignificant,” to “take into account”
various considerations, including “the nature of the
production process in the [third] country”) (emphasis
added). A dictionary defines “manufacturing” as “[t]he
action or process of manufacturing something; produc-
tion, fabrication.” Oxford English Dictionary (online
edition) (emphasis added). Because the statute treats
“completion or assembly” as synonymous with “pro-
duction process,”7 the Department was not required to
first make a specific finding as to the former terms as
HLD contends.
Instead, Commerce’s duty was to determine
whether HLD’s “completion or assembly” of oil piping
in Brunei and the Philippines was “minor or insignifi-
cant” given the criteria outlined in § 1677j(b)(2). The
and application of the Uruguay Round Agreements and
this Act in any judicial proceeding in which a question
arises concerning such interpretation or application.”
Comm. Overseeing Action for Lumber Int’l Trade Investiga-
tions or Negots. v. United States, 66 F.4th 968, 972 (Fed.
Cir. 2023) (quoting 19 U.S.C. § 3512(d)).
7 Thus, the SAA’s reference to “screwdriver assembly oper-
ations” plainly alludes to production operations in a third
country that are “minor or insignificant.” 19 U.S.C.
§ 1677j(b)(1)(C).
Ct. No. 21-00638 Page 11
Department did exactly that, explaining at length that
“[t]he vast majority of the production process neces-
sary to produce [oil piping] occurs in China.”
Appx01013. As the company fails to challenge that de-
termination—instead placing all its argument eggs in
its statutory interpretation basket—the court sustains
Commerce’s “minor or insignificant” finding as sup-
ported by substantial evidence.
C
Finally, HLD contests Commerce’s determination
that anti-circumvention measures were “appropriate.”
Appx01016; see also 19 U.S.C. § 1677j(b)(1)(E) (requir-
ing the Department to “determine[ ] that action is ap-
propriate under this paragraph to prevent evasion” of
a duty order). The company contends that such a find-
ing was not appropriate here because oil piping from
Brunei and the Philippines has “only a minimal pres-
ence on the U.S. market.” ECF 33-1, at 55. It also com-
plains that Commerce has not given an adequate ex-
planation for self-initiating the investigation. Id.
at 55–59. As the government responds, see ECF 34,
at 42–44, however, the statute does not require the De-
partment to either explain why it initiates an anti-cir-
cumvention investigation or consider the extent to
which a product under investigation has penetrated
the U.S. market.
What the statute instead directs Commerce to con-
sider before taking anti-circumvention action are pat-
terns of trade, whether the manufacturer of the inputs
is affiliated with the producer in the third country who
assembles or completes the product, and whether ship-
Ct. No. 21-00638 Page 12
ments of the inputs to the third country have increased
since the original duty order was imposed. See 19
U.S.C. § 1677j(b)(3). As the government argues, see
ECF 34, at 40–41, that’s what the Department did. See
Appx01039–01040. Because the agency considered
those criteria before acting, it necessarily considered
whether such action was “appropriate” for purposes of
§ 1677j(b)(1)(E). 8
* * *
The court denies HLD’s motion for judgment on the
agency record and instead grants judgment to the gov-
ernment and Defendant-Intervenors. See USCIT
R. 56.2(b). A separate judgment will issue. See USCIT
R. 58(a).
Dated: January 23, 2024 /s/ M. Miller Baker
New York, NY Judge
8 HLD also asserts—without laying any foundation for the
argument—that “Commerce must justify why it over-
turned the ITC’s well-reasoned exclusion of [Brunei and
the Philippines] from its affirmative injury determina-
tions.” ECF 33-1, at 60. The Commission’s material injury
determination in an antidumping or countervailing duty
proceeding, however, has no bearing on Commerce’s obli-
gations under the statute’s anti-circumvention provisions.