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Bell Supply Company, LLC v. United States

United States Court of Appeals, Federal Circuit

April 25, 2018

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

          Appeals from the United States Court of International Trade in No. 1:14-cv-00066-CRK, Judge Claire R. Kelly.

          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, 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, Washington, 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 & Sullivan, LLP, Washington, DC, argued for defendant-appellant United States Steel Corporation. Also represented 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 (collectively, 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), fabricated 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 affirmed Commerce's determination that OCTG finished in third countries do not meet the requirements for circumvention 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 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 market distortions caused by foreign producers who sell their merchandise in the United States for less than fair market 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 investigation, Commerce determines whether the subject merchandise 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 whether "the imported merchandise in question either materially injures or threatens to materially injure American domestic industry." Allegheny, 287 F.3d at 1368. Commerce will issue an AD or CVD order if the investigation reveals dumping or foreign subsidies that injure American domestic industry. Duferco Steel, 296 F.3d at 1089.

         After Commerce issues an AD or CVD order, questions 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 regarding AD and CVD orders covering OCTG from China. 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 ...


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