Arcelormittal Stainless Belgium N.V. v. United States

• Decision Date: 07 September 2012
• Docket Number: No. 2011–1578.,2011–1578.
• Citation: 694 F.3d 82
• Parties: ARCELORMITTAL STAINLESS BELGIUM N.V. (now known as Aperam Stainless Belgium N.V.), Plaintiff–Appellant, v. UNITED STATES, Defendant–Appellee, and Allegheny Ludlum Corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

694 F.3d 82

ARCELORMITTAL STAINLESS BELGIUM N.V. (now known as Aperam Stainless Belgium N.V.), Plaintiff–Appellant,

v. UNITED STATES, Defendant–Appellee,andAllegheny Ludlum Corporation, Defendant–Appellee.

No. 2011–1578.

United States Court of Appeals, Federal Circuit.

Sept. 7, 2012.

Bryan H. Dayton, Shearman & Sterling, LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief was Robert S. LaRussa.

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee, United States. With her on the brief were Tony West, Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Daniel J. Calhoun, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Jeffrey S. Beckington, Kelley Drye & Warren, LLP, of Washington, DC, argued for defendant-appellee, Allegheny Ludlum Corporation. With him on the brief was David A. Hartquist.

Before RADER, Chief Judge, PLAGER, and LINN, Circuit Judges.

PLAGER, Circuit Judge.

This is an antidumping case. It involves the scope of the Department of Commerce's (“Commerce”) antidumping duty order on certain stainless steel plate in coils (“SSPC”). The order states that the products subject to the order are those which are “4.75 mm or more in thickness.” Aperam Stainless Belgium N.V. (“ASB”),¹ a Belgian producer of SSPC, requested a scope ruling to determine whether its products, which have nominal thicknesses of 4.75 mm or more but are imported into the United States with actual thicknesses less than 4.75 mm, are included within the scope of the order.

Commerce determined that the scope of its antidumping order encompasses SSPC having a nominal thickness of 4.75 mm but an actual thickness of less than 4.75 mm and, therefore, the order applies to ASB's products. ASB appealed Commerce's scope ruling to the Court of International Trade, which agreed with Commerce and affirmed.² Because Commerce's final scope ruling is not supportable since it is contrary to the plain language of the order, we reverse.

Background

I.

This appeal stems from an antidumping order concerning certain stainless steel plate in coils. “Dumping” is the sale of foreign merchandise in the United States at less than fair value, i.e., less than the price at which the merchandise is sold in the foreign producer's home market. 19 U.S.C. § 1673. To curtail such dumping activity, Commerce is authorized to issue antidumping orders imposing duties on imported merchandise. Id.

A domestic industry concerned about possible dumping activity may initiate an investigation by filing a petition with Commerce. 19 U.S.C. § 1673a(b). ³ If the petition satisfies the statutory requirements, Commerce will commence an antidumping investigation. Id. § 1673a(c). Commerce then collects information from foreign producers and makes a preliminary determination as to the existence and extent of dumping and the amount of duties that should be imposed. Id. § 1673b(b), (d). Meanwhile, the International Trade Commission collects information from the affected domestic industry and makes a preliminary determination as to whether a threat of material injury exists. Id. § 1673b(a).

After further proceedings, if Commerce makes a final determination that dumping has occurred, and if the International Trade Commission makes a final determination of material injury, Commerce issues a final antidumping order that defines which goods are subject to antidumping duties and their duty rate. 19 U.S.C. §§ 1673d, 1673e. Upon request, the administering agencies will periodically review the existence and extent of dumping, the amount of the duty, and the question of material injury. Id. § 1675.

After the issuance of a final antidumping order, questions may arise regarding its scope. Commerce's regulations provide for a procedure called a scope ruling to determine whether a particular product is included within the scope of an antidumping order. 19 C.F.R. § 351.225. In a scope ruling proceeding “a predicate for the interpretive process is language in the order that is subject to interpretation.” Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1383 (Fed.Cir.2005) (citing Duferco Steel Inc. v. United States, 296 F.3d 1087, 1097 (Fed.Cir.2002)). If Commerce determines that the language at issue is not ambiguous, it states what it understands to be the plain meaning of the language, and the proceedings terminate. On the other hand, if Commerce finds that the scope language is ambiguous, it then looks to two sets of factors spelled out in its regulations to determine the intended scope of the order.⁴ This appeal stems from such a scope ruling proceeding.

II.

On March 31, 1998, Allegheny Ludlum Corporation (“Allegheny”), along with other members of the domestic stainless steel industry, petitioned Commerce to impose antidumping and countervailing duties on SSPC from several countries, including Belgium.⁵ SSPC is used in the fabrication of large storage tanks, process vessels, and other types of industrial equipment requiring corrosion resistance. The petition identified the foreign merchandise at issue based on the Harmonized Tariff Schedule's definition of stainless steel as “alloy steels containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium.” The petition employed the American Iron and Steel Institute's definition of plate as “a flatrolled or forged product that is 10 inches and over in width and 0.1875 inches and over in thickness.” In response to Commerce's inquiries regarding the scope of the petitions, petitioners provided metric equivalents for the width and thickness dimensions of 254 mm and 4.75 mm, respectively. The petitioners noted that although “the precise metric equivalent of the 0.1875 inch minimum thickness for plate products is 4.76 mm, ... [p]etitioners 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.” Finding the petition satisfactory, Commerce initiated an antidumping duty investigation, and defined the scope of the investigation using the metric dimensions provided by petitioners, including the 4.75 mm thickness dimension. Initiation of Antidumping Duty Investigations: Stainless Steel Plate in Coils from Belgium, Canada, Italy, Republic of South Africa, South Korea and Taiwan, 63 Fed.Reg. 20,580 (Apr. 27, 1998).

Although the SSPC industry recognizes two types of thickness measurements, nominal thickness and actual thickness, Commerce, when it stated the 4.75 mm dimension in its definition of the scope of the investigation, and later when it issued orders based on that investigation, did not specify or otherwise differentiate between nominal and actual thickness. “Nominal thickness” is the measurement purchasers use when ordering SSPC, and “actual thickness” is the measured thickness of the delivered product. Because the manufacturing process is not perfect, the industry has established “tolerance ranges” within which certain actual thicknesses are considered equivalent to the nominal thickness that was ordered. In other words, the actual delivered thickness may vary from, by being slightly under or over, the ordered or nominal thickness, and still meet the specifications of the contract order.

In May of 1998, Commerce solicited information from ASB and the other foreign producers, instructing them to “[r]eport actual thicknesses; if nominal thicknesses are used in your normal course of business, convert these to actual thicknesses.” Four months later, however, Commerce changed its instructions and requested the foreign producers to “ensure that all sales of products for which the nominal thickness is greater than or equal to 4.75 mm have been included in your ... questionnaire response.”

Based on the information collected during the investigation, Commerce determinedthat sales of foreign merchandise were being made at dumped prices, and the International Trade Commission determined that the dumped imports were a cause of injury to domestic producers. Accordingly, Commerce imposed antidumping and countervailing duty orders on the subject SSPC. Antidumping Duty Orders; Certain Stainless Steel Plate in Coils from Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 64 Fed.Reg. 27,756 (May 21, 1999). The current scope of the orders recites:

The product covered by these orders is certain stainless steel plate in coils. Stainless steel is an alloy steel containing, by weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with our without other elements. The subject plate products are flat-rolled products, 254 mm or over in width and 4.75 mm or more in thickness, in coils, and annealed or otherwise heat treated and pickled or otherwise descaled. The subject plate may also be further processed (e.g., cold-rolled, polished, etc.) provided that it maintains the specified dimensions of plate following such processing. Excluded form the scope of this order are the following: (1) Plate not in coils, (2) plate that is not annealed or otherwise heat treated and pickled or otherwise descaled, (3) sheet and strip, and (4) flat bars.

The merchandise subject to this review is currently classifiable in the Harmonized Tariff Schedule of the United States (HTS) at [specified] subheadings.... Although the HTS subheadings are provided for convenience and Customs purposes, the written description of the merchandise subject to these orders is dispositive.

Notice of Amended Antidumping Duty Orders; Certain Stainless Steel Plate in Coils from Belgium, Canada, Italy, the Republic of Korea, South Africa, and Taiwan, 68 Fed.Reg. 11,520 (Mar. 11, 2003) (emphasis added).

Over the next five years, ASB participated in three administrative reviews of the antidumping duty order.⁶ In the reviews,...