Noksel Celik Boru Sanayi A.S. v. United States
| Docket Number | 21-00140,Slip Op. 23-125 |
| Decision Date | 23 August 2023 |
| Parties | NOKSEL CELIK BORU SANAYI A.S., Plaintiff, v. UNITED STATES, Defendant, and NUCOR TUBULAR PRODUCTS INC., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
[Antidumping Duty Determination in Review of Order on Light-Walled Rectangular Pipe and Tube from Turkey Sustained.]
Leah N. Scarpelli and Jessica R. DiPietro, ArentFox Schiff LLP, of Washington, DC, argued for Plaintiff Noksel Celik Boru Sanayi A.S. With them on brief was Matthew M. Nolan.
Eric J. Singley, Trial Attorney, Civil Division, U.S. Department of Justice, of Washington, DC, argued for the Defendant. With him on the brief were Brian M. Boynton, Acting Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Ashlande Gelin, Staff Attorney, Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Maureen Elizabeth Thorson, Wiley Rein LLP, of Washington, DC argued for Defendant-Intervenor Nucor Tubular Products Inc. With her on the brief were Alan H. Price, Robert E DeFrancesco, III, and Theodore P. Brackemyre.
Before: Jane A. Restani, Judge
Before the court is a motion for judgment on the agency record pursuant to United States Court of International Trade ("USCIT") Rule 56.2, in an action challenging a final determination of the United States Department of Commerce ("Commerce"). The final determination at issue resulted from Commerce's findings during an administrative review of the antidumping ("AD") order covering steel light-walled rectangular pipe and tube from Turkey. Plaintiff Noksel Celik Boru Sanayi A.S. ("Noksel") challenges the calculation.
On July 15, 2019, Commerce initiated an antidumping duty administrative review of light-walled rectangular pipe and tube products from Turkey for the period of May 1, 2018, through April 30, 2019. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 84 Fed.Reg. 33,739, 33,748 (Dep't Commerce July 15, 2019).
On July 24, 2020, Commerce issued its preliminary results and accompanying Preliminary Decision Memorandum, and published the results in the Federal Register. Light-Walled Rectangular Pipe and Tube From Turkey: Preliminary Results of Antidumping Duty Administrative Review; 2018-2019, 85 Fed.Reg. 44,861 (Dep't Commerce July 24, 2020) ("Preliminary Results"); Decision Memorandum for Preliminary Results of the Antidumping Duty Administrative Review: Light-Walled Rectangular Pipe and Tube from Turkey; 2018-2019, A-489-815, POR 5/1/2018-4/30/2019 (Dep't Commerce July 20, 2020). Commerce issued the final results on May 27, 2021. Light-Walled Rectangular Pipe and Tube from Turkey: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2018-2019, 86 Fed.Reg. 11,230 (Dep't Commerce Feb. 24, 2021), and accompanying 2018-2019 Antidumping Duty Administrative Review of Light-Walled Rectangular Pipe and Tube from Turkey: Issues and Decision Memorandum for the Final Results, A-489-815, POR 5/1/2018-4/30/2019 (Dep't Commerce Feb. 16, 2021) ("IDM").
On March 8, 2018, the President exercised his authority under Section 232 of the Trade Expansion Act of 1962, as amended, and mandated the imposition of a global tariff of 25 percent on imports of steel articles from all countries, except Canada and Mexico. Proclamation No. 9705 of March 8, 2018, 83 Fed.Reg. 11,625, 11,626 (Mar. 15, 2018) ("Proclamation 9705"). The Section 232 duties went into effect on March 23, 2018, and applied "in addition to any other dut[y]." Id. at 11,627-28. By its terms, Proclamation 9705 was issued in order to "enable domestic steel producers to use approximately 80 percent of existing domestic production capacity and thereby achieve long-term economic viability through increased production" and to "ensure that domestic producers can continue to supply all the steel necessary for critical industries and national defense." Id. at 11,625-26; see also 19 U.S.C. § 1862(d).
On August 10, 2018, the President issued another proclamation, increasing the tariff on Turkish steel imports from 25 percent to 50 percent, effective August 13, 2018. Proclamation No. 9772 of August 10, 2018, 158 Fed.Reg. 40,429 (Aug. 15, 2018) ("Proclamation 9772").[1] In the proclamation, the President stated that he increased the tariffs because Turkey was a major exporter of steel, and the increased tariff would "be a significant step toward ensuring the viability of the domestic steel industry." Id. at 40,429. On May 16, 2019, the President issued a proclamation ending the increased Section 232 tariff on Turkish steel imports. Proclamation No. 9886 of May 16, 2019, 84 Fed.Reg. 23,421 (May 16, 2019).
In the final results, Commerce treated the Section 232 duties paid by Noksel as "United States import duties" under 19 U.S.C. § 1677a(c)(2)(A) and therefore deducted the Section 232 duties on the United States price side of the dumping comparison from export ("EP") and constructed export price ("CEP"). IDM at 4-5. Commerce determined that Section 232 duties were more akin to normal customs duties than to antidumping or countervailing duties or Section 201 duties, codified as 19 U.S.C. § 2251, which are not deducted. Id. Commerce reasoned that the President indicated that national security was the concern when issuing Proclamation 9705 and stated that the duties were to be imposed in addition to other duties. Id. at 4.
On March 26, 2021, Noksel commenced the instant action against the United States pursuant to 19 U.S.C. § 1516a(a)(2). Compl., ECF No. 4 (Mar. 26, 2021). Noksel claims that the AD determination is unsupported by substantial evidence or is otherwise contrary to law because Commerce incorrectly treated Section 232 duties as normal U.S. customs duties and denied a duty-drawback adjustment. Compl. ¶¶ 19-24; Pl. R. 56.2 Mot. For J. on the Agency R., ECF Nos. 24- 25 (Sept. 3, 2021) ("Pl. Br.").
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. § 1516a(a)(2). The court sustains Commerce's results of an administrative review of an AD duty order unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]" 19 U.S.C. § 1516a(b)(1)(B)(i).
Noksel raises two issues related to whether Section 232 duties may be deducted from United States price. First, Noksel argues that Commerce erred by treating the Proclamation 9705 Section 232 duties as a United States import duty under § 1677a(c)(2)(A). Pl. Br. at 19-37. This argument is foreclosed, however, by binding precedent from the U.S. Court of Appeals for the Federal Circuit. Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 63 F.4th 25, 37 (Fed. Cir. 2023) ("Borusan Mannesmann II") (). Noksel's remaining argument is that Proclamation 9772's temporary increase of Section 232 duties on Turkey is sufficiently distinct, and thus, that those increased duties cannot be treated as a United States import duty under § 1677a(c)(2)(A) because the increase was temporary and remedial. Pl. Br. at 37-39.[2]
Antidumping duties depend on the "dumping margin," 19 U.S.C. § 1677(35)(A), which is the difference between "the normal value," (or home country value) and the EP or CEP[3] for the merchandise, id. § 1673. The adjustments of EP and CEP are set forth in section 772(c) of the Tariff Act of 1930, codified at 19 U.S.C. § 1677a(c). EP and CEP are to be reduced by "the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States import duties, which are 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 . . . ." 19 U.S.C. § 1677a(c)(2)(A) (emphasis added). These adjustments are made "in an attempt to get back to an ex-factory price that is comparable to the price of goods in the home market." Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 45 CIT,, 494 F.Supp.3d 1365, 1373 (2021) ("Borusan Mannesmann I"), aff'd on other grounds, Borusan Mannesmann II, 63 F.4th at 33; see also S. Rep. No. 67-16, at 12 (1921); H.R. Rep. No. 67-1, at 23-24 (1921); H.R. Rep. No. 67-79, at 2-3 (1921).[4]
Regarding Section 201 safeguard duties, Commerce has previously concluded that they should not be deducted as import duties under § 1677a(c)(2)(A). Stainless Steel Wire Rod from the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 69 Fed.Reg. 19,153, 19,157-61 (Dep't Commerce Apr. 12, 2004) ("SSWR from Korea"). Commerce reached this because Section 201 duties were remedial and temporary in nature, and deducting from EP and CEP would result in an inappropriate double remedy. Id. at 19,160-61. In Wheatland Tube Co. v. United States, the Federal Circuit held that Commerce's construction of "United States import duty" statute was reasonable in the light of the specific Section 201 duties. 495 F.3d 1355, 1359-66 (Fed. Cir. 2007); but see Borusan Mannesmann II, 63 F.4th at 36-37 (...
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