Seah Steel Vina Corp. v. United States

• Citation: 950 F.3d 833
• Decision Date: 27 January 2020
• Docket Number: 2019-1091
• Parties: SEAH STEEL VINA CORPORATION, Plaintiff-Appellant v. UNITED STATES, United States Steel Corporation, Defendants-Appellees TMK IPSCO, Vallourec Star, L.P., Welded Tube USA Inc., Boomerang Tube LLC, Energex Tube (a Division of JMC Steel Group), Tejas Tubular Products, Maverick Tube Corporation, Defendants
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

950 F.3d 833

SEAH STEEL VINA CORPORATION, Plaintiff-Appellant

v. UNITED STATES, United States Steel Corporation, Defendants-AppelleesTMK IPSCO, Vallourec Star, L.P., Welded Tube USA Inc., Boomerang Tube LLC, Energex Tube (a Division of JMC Steel Group), Tejas Tubular Products, Maverick Tube Corporation, Defendants

2019-1091

United States Court of Appeals, Federal Circuit.

Sealed Opinion Issued: January 27, 2020

Public Opinion Issued: February 14, 2020^*

Jeffrey M. Winton, Law Office of Jeffrey M. Winton PLLC, Washington, DC, argued for plaintiff-appellant.

Douglas Glenn Edelschick, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Joseph H. Hunt, Claudia Burke, Jeanne Davidson; Brendan Saslow, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, Washington, DC.

Thomas M. Beline, Cassidy Levy Kent USA LLP, Washington, DC, argued for defendant-appellee United States Steel Corporation. Also represented by Myles Samuel Getlan, Sarah E. Shulman, James Edward Ransdell, IV.

Before Newman, Schall, and Wallach, Circuit Judges.

Wallach, Circuit Judge.

Appellant SeAH Steel VINA Corporation ("SeAH") sued Appellee the United States ("Government") in the U.S. Court of International Trade ("CIT"), challenging the U.S. Department of Commerce’s ("Commerce") final determination of an antidumping duty investigation covering certain oil country tubular goods ("OCTG") from the Socialist Republic of Vietnam ("Vietnam"). See Certain Oil Country Tubular Goods From the Socialist Republic of Vietnam , 79 Fed. Reg. 41,973, 41,973 (July 18, 2014) (final determination) (" Final Determination "), as amended by Certain Oil Country Tubular Goods From the Socialist Republic of Vietnam , 79 Fed. Reg. 53,691 (Sept. 10, 2014) (order and amended final determination). The CIT remanded the case twice to Commerce, SeAH Steel VINA Corp. v. United States (SeAH I ), 182 F. Supp. 3d 1316, 1345 (CIT 2016) ; SeAH Steel VINA Corp. v. United States (SeAH II ), 269 F. Supp. 3d 1335, 1365 (CIT 2017), and sustained Commerce’s second redetermination on remand, see SeAH Steel VINA Corp. v. United States (SeAH III ), 332 F. Supp. 3d 1314, 1318 (CIT 2018) (Opinion and Order); see also J.A. 3011–46 (Redetermination II ); J.A. 2942–69 (Redetermination I ).

SeAH appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012). We affirm-in-part, reverse-in-part, and remand.

BACKGROUND

I. Legal Framework

Antidumping duties may be imposed on "foreign merchandise" that "is being, or is likely to be, sold in the United States at less than its fair value." 19 U.S.C. § 1673 (2012).¹ Antidumping duties are a trade remedy "imposed to protect [domestic] industries against unfair trade practices." Canadian Wheat Bd. v. United States , 641 F.3d 1344, 1351 (Fed. Cir. 2011). Domestic industries may seek "relief from imports that are sold in the United States at less than fair value," Allegheny Ludlum Corp. v. United States , 287 F.3d 1365, 1368 (Fed. Cir. 2002), by filing a petition with Commerce and the U.S. International Trade Commission ("ITC") to initiate an antidumping duty investigation, see 19 U.S.C. §§ 1673a(b), 1677(9)(C). Following investigation, if Commerce determines that imported merchandise "is being, or is likely to be, sold in the United States at less than its fair value," id. § 1673(1), and the ITC determines that the importation or sale of that merchandise has "materially injured" or "threaten[s]" to "materially injur[e]" an industry in the United States, id. § 1673(2), then Commerce will "publish an antidumping duty order ... direct[ing] [U.S. Customs and Border Protection] to assess ... antidumping dut[ies]" on subject merchandise, id. § 1673e(a)(1).

Commerce "determine[s] the estimated weighted average dumping margin for each exporter and producer individually investigated" and "the estimated all-others rate for all exporters and producers not individually investigated." Id. § 1673d(c)(1)(B)(i). A dumping margin reflects the amount by which the " ‘normal value’ (the price a producer charges in its home market) exceeds the ‘export price’ (the price of the product in the United States) or ‘constructed export price.’ " U.S. Steel Corp. v. United States , 621 F.3d 1351, 1353 (Fed. Cir. 2010) (footnote omitted) (citing 19 U.S.C. § 1677(35)(A) ); see 19 U.S.C. §§ 1677b(a)(1) (defining "normal value" as "the price at which the [merchandise] is first sold ... for consumption" in the home country or third country), 1677a(b) (defining "constructed export price" as "the price at which the subject merchandise is first sold ... in the United States" to "a purchaser not affiliated with the producer or exporter").

If Commerce finds that the exporting country is a "non-market economy" ("NME") country² and "that available information does not permit the normal value of the subject merchandise to be determined under [ § 1677b(a) ]," then Commerce calculates normal value using surrogate values for the "factors of production" in a comparable "market economy country." Id. § 1677b(c)(1).³ Further, "[b]ecause firms have ‘general expenses and profits’ not traceable to a specific product, in order to capture these expenses and profits, Commerce must factor [surrogate values for] (1) factory overhead (‘overhead’), (2) selling, general and administrative expenses (‘SG&A’), and (3) profit into the calculation of normal value"—that is, the respondent’s "financial ratios." Dorbest Ltd. v. United States , 462 F. Supp. 2d 1262, 1300 (CIT 2006) (quoting 19 U.S.C. § 1677b(c)(1) ). Commerce may, similarly, adjust export price or constructed export price using surrogate values for "movement expenses." Prelim. I&D Memo at 10–11; see 19 U.S.C. § 1677a(c)(2)(A) (instructing Commerce to adjust constructed export price by, inter alia, "the amount ... attributable to any additional costs, charges, or expenses ... incident to bringing the subject merchandise from the original place of shipment in the exporting country to the place of delivery in the United States"); Fine Furniture (Shanghai) Ltd. v. United States , 182 F. Supp. 3d 1350, 1368 (CIT 2016) (explaining that Commerce will use "a surrogate value for [movement] expenses" for NME respondents).

In selecting surrogate values, Commerce "attempts to construct a hypothetical market value of [the subject merchandise] in the [NME]." Downhole Pipe & Equip., L.P. v. United States , 776 F.3d 1369, 1375 (Fed. Cir. 2015) (internal quotation marks, alterations, and citation omitted). Commerce’s surrogate value determinations must "be based on the best available information regarding the values of [relevant] factors in a market economy country or countries." 19 U.S.C. § 1677b(c)(1) ; see id. § 1677b(a) (providing that Commerce constructs the "normal value" "to achieve a fair comparison with the export price"). "Commerce has broad discretion to determine" what constitutes "the best available information," as this term "is not defined by statute." QVD Food Co. v. United States, 658 F.3d 1318, 1323 (Fed. Cir. 2011). Commerce "generally selects, to the extent practicable, surrogate values that are publicly available, are product-specific, reflect a broad market average, and are contemporaneous with the period of review." Qingdao Sea–Line Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014) (footnote omitted).

II. Procedural History

In July 2013, Commerce "received antidumping duty ... petitions concerning imports of certain [OCTG] from," inter alia, Vietnam, from domestic producers, including U.S. Steel Corporation ("U.S. Steel"), Maverick Tube Corporation, TMK IPSCO, Vallourec Star L.P., and Welded Tube USA Inc. (collectively, "Petitioners"). Certain Oil Country Tubular Goods from India, the Republic of Korea, the Republic of the Philippines, Saudi Arabia, Taiwan, Thailand, the Republic of Turkey, Ukraine, and the Socialist Republic of Vietnam , 78 Fed. Reg. 45,505, 45,506 (July 29, 2013) (initiation of antidumping duty investigations). Petitioners alleged sales of OCTG "at less than fair value" and "material injury to [the] industry in the United States." Id. Commerce initiated an investigation. Id. at 45,505.

Commerce "issued quantity and value ... questionnaires to the eight companies named in the [P]etition," but received timely responses from only two—one of which was SeAH. Prelim. I&D Memo at 2. Commerce selected SeAH and the other responsive company as mandatory respondents. Id. ; see 19 U.S.C. § 1677f-1(c)(2) (explaining when Commerce may limit its review to a "reasonable number of exporters or producers"). In February 2014, Commerce issued its preliminary determination. Certain Oil Country Tubular Goods From the Socialist Republic of Vietnam , 79 Fed. Reg. 10,478, 10,479 (Feb. 25, 2014) (preliminary determination). Because Commerce "considers Vietnam to be [an NME] country," Commerce selected a surrogate market economy country, India, to provide surrogate values. Prelim. I&D Memo at 6, 11; see also 19 U.S.C. § 1677b(c)(1) (providing for the use of surrogate values to calculate normal value for NME respondents).

In July 2014, Commerce issued its Final Determination . 79 Fed. Reg. at 41,973. Commerce calculated a 24.22% dumping margin for SeAH. Id. at 41,975. Commerce based this margin on various surrogate values. See J.A. 2203–06 (explaining Commerce’s selection of Welspun Corporation Limited’s ("Welspun") financial statements for calculation of surrogate financial ratios, for SeAH’s normal value), 2226–27 (declining to deduct a surrogate value for domestic inland insurance from SeAH’s constructed export price); see also J.A. 2188–95 (selecting the World Bank’s Doing Business 2014: India ("Doing Business Report ") as the best available information for brokerage and handling ("B&H") surrogate values⁴ and explaining Commerce’s allocation of B&H costs, for adjustments to...