Case: 22-2078 Document: 75 Page: 1 Filed: 04/04/2024
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`United States Court of Appeals
`for the Federal Circuit
`______________________
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`UNITED STATES STEEL CORPORATION,
`Plaintiff-Appellant
`
`NUCOR CORPORATION,
`Plaintiff
`
`v.
`
`UNITED STATES, BLUESCOPE STEEL (AIS) PTY
`LTD., BLUESCOPE STEEL LTD, BLUESCOPE
`STEEL AMERICAS, INC.,
`Defendants-Appellees
`______________________
`
`2022-2078
`______________________
`
`Appeal from the United States Court of International
`Trade in No. 1:20-cv-03815-RKE, Senior Judge Richard K.
`Eaton.
`
`______________________
`
`Decided: April 4, 2024
`______________________
`
`SARAH E. SHULMAN, Cassidy Levy Kent (USA) LLP,
`Washington, DC, argued for plaintiff-appellant. Also rep-
`resented by YOHAI BAISBURD, THOMAS M. BELINE, CHASE
`DUNN, JAMES EDWARD RANSDELL, IV.
`
` EMMA EATON BOND, Commercial Litigation Branch,
`Civil Division, United States Department of Justice,
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`UNITED STATES STEEL CORPORATION v. US
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`Washington, DC, argued for defendant-appellee United
`States. Also represented by BRIAN M. BOYNTON, TARA K.
`HOGAN, PATRICIA M. MCCARTHY; SPENCER NEFF, Office of
`the Chief Counsel for Trade Enforcement & Compliance,
`United States Department of Commerce, Washington, DC.
`
` DANIEL L. PORTER, Curtis, Mallet-Prevost, Colt &
`Mosle LLP, Washington, DC, argued for defendants-appel-
`lees BlueScope Steel (AIS) Pty Ltd., BlueScope Steel Ltd,
`BlueScope Steel Americas, Inc. Also represented by JAMES
`BEATY, CHRISTOPHER A. DUNN, JAMES P. DURLING.
`______________________
`
`Before MOORE, Chief Judge, HUGHES and STARK, Circuit
`Judges.
`
`HUGHES, Circuit Judge.
` United States Steel Corp. appeals a decision from the
`United States Court of International Trade sustaining the
`Department of Commerce’s determination that Australian
`producer and exporter of hot-rolled steel, BlueScope Steel
`(AIS) Pty Ltd., did not reimburse its affiliated U.S. im-
`porter, BlueScope Steel Americas, Inc., for antidumping
`duties. Because we agree with the trial court that the
`agency’s determination is supported by substantial evi-
`dence and is otherwise in accordance with law, we affirm.
`I
`A
` Under the Tariff Act of 1930, as amended, the Depart-
`ment of Commerce is authorized to administer the anti-
`dumping statute. See 19 U.S.C. §§ 1673, 1677(1). The
`purpose of the antidumping statute is to protect domestic
`industries from injury caused by foreign manufactured
`goods that are sold in the United States at prices below the
`fair market value of those goods. See U.S. Steel Corp. v.
`United States, 621 F.3d 1351, 1353 (Fed. Cir. 2010). In
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`UNITED STATES STEEL CORPORATION v. US
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`administering the statute, the agency will conduct investi-
`gations and assess antidumping duties where it deter-
`mines that foreign goods are being sold in the United
`States at less-than-fair value. 19 U.S.C. § 1673. If re-
`quested by an interested party, the agency must also con-
`duct an annual review of a previously issued antidumping
`duty order to determine the amount of dumping and the
`duties owed for the period of review. Id. § 1675(a)(1)(B),
`(2)(A). During the review, the agency calculates a “dump-
`ing margin” by comparing the price at which the merchan-
`dise is sold in the United States (export price) to a “normal
`value” benchmark. See id. §§ 1675(a)(2)(A)(ii),1677(35)(A).
`Where a domestic importer is affiliated with the foreign ex-
`porter, the agency will use “constructed export price,” de-
`fined as the price at which the merchandise is first sold to
`a non-affiliated purchaser, with adjustments made to ac-
`count for expenses incurred by the affiliated seller. Id.
`§ 1677a(b), (d)(1).
` When calculating export price or constructed export
`price, the agency must also account for additional factors,
`including whether the exporter has reimbursed the im-
`porter for antidumping duties owed on the merchandise.
`See 19 C.F.R. § 351.402(a), (f). If the agency finds that the
`importer has been reimbursed for antidumping duties, it
`will subtract the amount of reimbursement from the calcu-
`lated export price, ultimately leading to a higher dumping
`margin and a larger duty owed. Id. § 351.402(f)(1)(i) (“In
`calculating the export price (or the constructed export
`price), the Secretary will deduct the amount of any anti-
`dumping duty or countervailing duty which the exporter or
`producer . . . [p]aid directly on behalf of the importer;
`or . . . [r]eimbursed to the importer.”). The agency requires
`importers to file a certification with United States Customs
`and Border Protection stating whether the importer has
`been reimbursed or refunded by the manufacturer, pro-
`ducer, seller, or exporter for all or part of the antidumping
`duties assessed. Id. § 351.402(f)(2)(i).
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`UNITED STATES STEEL CORPORATION v. US
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`B
`This appeal arises out of the Department of Com-
`
`merce’s second administrative review of the existing anti-
`dumping duty order on hot-rolled steel flat products from
`Australia, covering a period of review from October 1, 2017
`to September 30, 2018. Defendants-Appellees BlueScope
`Steel (AIS) Pty Ltd., BlueScope Steel Ltd, and BlueScope
`Steel Americas, Inc. (collectively, BlueScope) are all affili-
`ated parties that comprise the only hot-rolled steel pro-
`ducer and exporter in Australia. BlueScope Steel Ltd
`(hereinafter, BSL) is the ultimate corporate parent com-
`pany. BlueScope Steel (AIS) Pty Ltd. (hereinafter, AIS) is
`a wholly owned subsidiary of BSL and is the actual pro-
`ducer and exporter of BlueScope hot-rolled steel.
`BlueScope Steel Americas, Inc. (hereinafter, BSA) is the af-
`filiated United States importer. BSL also owns a 50% con-
`trolling
`interest
`in Steelscape LLC, an affiliated
`downstream U.S. customer that receives the majority of
`the imported steel.
`For exports of AIS steel that are destined for Steels-
`cape, AIS first invoices BSA, and in a “back-to-back trans-
`action,” BSA then
`invoices the ultimate customer,
`Steelscape. BlueScope Br. 4. The shipment of the physical
`merchandise goes directly from AIS to Steelscape.
`
`Prior to the agency’s release of its preliminary findings
`in the 2017–2018 administrative review, Plaintiff-Appel-
`lant United States Steel Corp. (hereinafter, U.S. Steel) al-
`leged that BlueScope had reimbursed BSA for the
`antidumping duties it incurred when importing AIS steel.
`U.S. Steel argued to the agency—and now argues to us on
`appeal—that BlueScope engaged in antidumping duty re-
`imbursement by failing to charge BSA a predetermined
`“formula price” and instead charged a price that accounted
`for estimated antidumping duties owed by BSA. The “for-
`mula price” at issue in this case is housed in a supply agree-
`ment between BlueScope entities. Because the parties offer
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`incompatible interpretations of the Supply Agreement and
`the entities to which it applies, we present each party’s rec-
`itation of the underlying facts in turn.
`1
`BlueScope explains that the Supply Agreement at is-
`
`sue is a “Substrate Supply Agreement” among BSL, BSA,
`and Steelscape. BlueScope Br. 6. BlueScope states:
`The Agreement sets the price that BSA charges
`Steelscape for the merchandise, according to a for-
`mula using two published hot-rolled price indices.
`Article 5.1 of the Supply Agreement uses this for-
`mula to determine the price of the purchase order
`(“PO”) that Steelscape submits to BSA. Article 3.5
`of the Supply Agreement states that “Steelscape
`will submit two POs {purchase orders} to BSA for
`the total amount of HRC {hot-rolled coil} in the
`Steelscape Order for each supply month . . . [.]” Ar-
`ticle 6.1 of the Agreement further sets forth invoice
`the price [sic] that “BSA will provide to Steelscape.”
`That price is a delivered, duty-paid price—a price
`that includes both the duties and the cost of deliv-
`ering the merchandise to Steelscape.
`BlueScope Br. 6–7 (internal citations omitted). In sum,
`BlueScope asserts that while the Supply Agreement con-
`trols the invoice price between BSA and Steelscape, it does
`not set forth the “transfer price” for the transaction be-
`tween AIS and BSA. Instead, BlueScope reports that it cal-
`culates the transfer price between AIS and BSA by starting
`with the formula price to Steelscape and subtracting the
`estimated antidumping duties that BSA will owe. To sup-
`port its explanation of the pricing methodology, BlueScope
`submitted evidence into the agency record during review,
`including a questionnaire response discussing the method-
`ology, a copy of the Supply Agreement, and a series of sales
`traces showing the actual amounts paid by AIS to BSA and
`then BSA to Steelscape
`in previous transactions.
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`UNITED STATES STEEL CORPORATION v. US
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`BlueScope also submitted evidence showing that BSA ac-
`tually paid the antidumping duty amounts owed and filed
`the certifications of nonreimbursement that are required
`under 19 C.F.R. § 351.402(f)(2)(i). J.A. 25.
`2
` Notwithstanding BlueScope’s proffered explanation of
`its own Supply Agreement, U.S. Steel has adopted the po-
`sition that BSA—not Steelscape—is required to pay the
`Supply Agreement’s formula price for hot-rolled steel. U.S.
`Steel points to several record documents as support for this
`contention. The first is the Supply Agreement itself, which
`BlueScope submitted in response to the agency’s request
`that BlueScope “[e]xplain how you determined the net unit
`transfer price.” J.A. 114. In responding to that question,
`BlueScope provided the Supply Agreement and stated that
`the agreement governed “[t]he price of material sold by
`BlueScope to BSA and subsequently to Steelscape.” J.A.
`114. The second document is another questionnaire re-
`sponse that provides a worksheet “demonstrat[ing] the ap-
`plication of the transfer price formula” for a sale “made by
`AIS on invoice to BSA and destined for Steelscape.” J.A.
`1458. U.S. Steel also references a third questionnaire re-
`sponse where BlueScope reported that “BlueScope issues
`an invoice to BSA for the merchandise according to the
`amount shipped and the formula price,” and further that
`“there is no negotiation of sales prices or terms of sale be-
`tween Steelscape and BSA or BSA and BlueScope.” J.A. 97.
`
`Because U.S. Steel argues that BSA was required to
`pay the formula price and because “the pricing formula
`does not establish a basis to deduct antidumping duties,”
`U.S. Steel concludes that BlueScope’s practice of calculat-
`ing the transfer price between AIS and BSA by subtracting
`estimated duties from the formula price is impermissible
`reimbursement of antidumping duties. Appellant’s Br. 8–9,
`12 (“That BlueScope lowered the price of the [hot-rolled
`steel] by antidumping duties outside of its pricing formula
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`is evidence of reimbursement.”). In response, BlueScope ar-
`gues that “nothing in the Substrate Supply Agreement sets
`forth the invoice price that foreign producer AIS is to
`charge its related party importer BSA for the merchan-
`dise,” and therefore, “AIS cannot have ‘lowered’ an invoice
`price when that invoice price is nowhere set forth in the
`relevant agreements between the parties.” BlueScope Br.
`9.
`
`C
`In its preliminary findings, the agency rejected U.S.
`Steel’s allegations of reimbursement, stating that its pre-
`liminary analysis of the record “[did] not demonstrate that
`BlueScope reimbursed its U.S. affiliate.” J.A. 48. Because
`the agency did not find evidence of reimbursement, it did
`not adjust BlueScope’s U.S. gross unit price to account for
`such reimbursement. In its final results, the agency again
`determined that BSA was not reimbursed for antidumping
`duties deposited during the period of review. The agency
`focused on record evidence showing that BSA filed the req-
`uisite certifications of nonreimbursement when it imported
`subject merchandise and stated that “there [was] no record
`evidence to contradict BSA’s statements in these certifica-
`tions.” J.A. 25. In fact, the agency found that BlueScope
`submitted record evidence to support the statements of
`nonreimbursement and further that the information
`demonstrated that BSA actually paid the requisite cash de-
`posit of antidumping duties. The agency determined that
`BlueScope’s explanation of the Supply Agreement “showed
`that these parties have a long-standing supply agreement
`which set the transfer prices of subject merchandise to
`Steelscape according to a formula.” J.A. 26 (emphasis
`added). Turning to BlueScope’s method of calculating the
`transfer price between AIS and BSA, the agency stated:
`We disagree with the petitioners that record evi-
`dence establishes that AIS deducted [antidumping]
`duties when setting the price to BSA. Rather, the
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`UNITED STATES STEEL CORPORATION v. US
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`information provided by BlueScope demonstrates
`that BSA paid [antidumping] duties on its imports
`of subject merchandise, and it passed these duties
`on to Steelscape as part of the transfer price
`[charged] to it. Despite the petitioners’ claim, this
`information does not show that AIS deducted [an-
`tidumping] duties from the price that it charged to
`BSA; to the contrary, it simply shows the calcula-
`tion of the transfer price to the U.S. customer, al-
`beit an affiliated one.
`J.A. 26 (footnote omitted). The agency also addressed U.S.
`Steel’s contention that a finding of no reimbursement was
`inconsistent with previous agency decisions. The agency
`explained that because there was “no evidence that AIS de-
`ducted the [antidumping] duties paid by BSA from the
`transfer price charged to BSA or otherwise reimbursed
`BSA for those duties,” its determination that the reim-
`bursement regulation did not apply was consistent with
`previous cases and past practice. J.A. 27 (citing cases
`where the agency clarified that “reimbursement, within
`the meaning of the regulation, takes place between affili-
`ated parties if the evidence demonstrates that the exporter
`directly pays antidumping duties for the affiliated importer
`or reimburses the importer for such duties”).
`Following the agency’s final decision, U.S. Steel filed a
`complaint in the United States Court of International
`Trade challenging the decision. U.S. Steel Corp. v. United
`States, 578 F. Supp. 3d 1323 (Ct. Int’l Trade 2022). The
`trial court sustained the agency’s decision, finding that it
`was supported by substantial evidence and was otherwise
`in accordance with the law. Id. at 1325. The trial court
`noted that “[t]he Exporter’s deduction of estimated anti-
`dumping duties from the Importer’s invoice price, on its
`own, is unremarkable when viewed in the context of the
`record.” Id. at 1331. The court further explained that
`“[t]ogether with the non-reimbursement evidence in the
`form of the certificate filed by the Importer, and evidence
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`that the Importer paid duties owed on the subject steel, the
`court concludes it was not unreasonable for Commerce to
`find that the reimbursement regulation did not apply
`here.” Id. The trial court also rejected U.S. Steel’s argu-
`ment that the agency erred as a matter of law by failing to
`apply its reimbursement regulation, stating, “Plaintiffs’ ar-
`gument that Commerce unlawfully ignored its ‘practice’ of
`considering the lowering of an invoice price to be ‘indirect
`reimbursement’ under its regulations is meritless.” Id. at
`1331–32. Like the agency, the trial court reasoned that in
`previous cases concerning allegations of antidumping duty
`reimbursement between affiliated parties, the agency has
`required a showing of something more than a transfer of
`funds between parties: there must be evidence that the ex-
`porter directly paid the duties or reimbursed the importer
`for such duties. Id. at 1332–33. The trial court then con-
`cluded that because there was no evidence of such reim-
`bursement—direct or indirect—it was “unconvinced by
`Plaintiff’s argument that Commerce has departed from an
`established practice.” Id. at 1333.
` U.S. Steel now appeals. We have jurisdiction under 28
`U.S.C. § 1295(a)(5).
`
`II
` We review the decisions of the Court of International
`Trade de novo, applying the same standard of review used
`by the trial court in reviewing the administrative record
`before the agency. Boomerang Tube LLC v. United States,
`856 F.3d 908, 912 (Fed. Cir. 2017). This court will uphold
`the agency’s determination unless it is “unsupported by
`substantial evidence on the record, or otherwise not in ac-
`cordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); Union
`Steel v. United States, 713 F.3d 1101, 1106 (Fed. Cir. 2013).
`
`A decision is supported by substantial evidence if the
`evidence amounts to “more than a mere scintilla” and “a
`reasonable mind might accept [it] as adequate to support a
`conclusion.’” Ad Hoc Shrimp Trade Action Comm. v. United
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`States, 802 F.3d 1339, 1348 (Fed. Cir. 2015) (quoting Con-
`sol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938)).
`Our review “is limited to the record before Commerce in the
`particular proceeding at issue and includes all evidence
`that supports and detracts from Commerce’s conclusion.”
`Id. Further, the Department of Commerce’s findings “may
`still be supported by substantial evidence even if two in-
`consistent conclusions can be drawn from the evidence.” Id.
`III
` On appeal, U.S. Steel argues that the trial court erred
`in sustaining the agency’s finding that BlueScope did not
`engage in antidumping duty reimbursement because such
`a decision is not supported by substantial evidence. U.S.
`Steel further argues that the agency erred as a matter of
`law when it declined to apply its antidumping duty regula-
`tion to the facts of the case. We disagree and hold that the
`agency’s determination was supported by substantial evi-
`dence and was otherwise in accordance with law.
` During the review, the agency based its determination
`on a number of record documents, including the nonreim-
`bursement certificate filed by BSA, the Supply Agreement,
`the sales trace of previous transactions amongst the par-
`ties, and documents showing that BSA had paid the owed
`duties to United States Customs and Border Protection.
`The agency’s Final Decision Memorandum and the Final
`Results Analysis Memorandum both demonstrate that the
`agency had a clear understanding of BlueScope’s transfer
`price methodology, including the ways that BlueScope fac-
`tored estimated antidumping duties into its calculation.
`See J.A. 26, 4103. Even after weighing this evidence, the
`agency found that the transfer pricing methodology did not
`constitute reimbursement. As the trial court explained, the
`agency determined that “it would have been unreasonable
`for the Exporter to include antidumping duties in the price
`charged to the Importer because the Exporter itself was not
`responsible for those duties.” U.S. Steel, 578 F. Supp. 3d at
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`1327. The record indicates that the evidence before the
`agency was adequate to support the agency’s finding of
`nonreimbursement. Furthermore, the fact that U.S. Steel
`may be able to point to several instances in the record
`where BlueScope submitted questionnaire responses that
`could fairly be read to contradict its overall narrative re-
`garding the Supply Agreement, see Reply Br. 2–3, is not
`sufficient to render the agency’s decision unreasonable or
`not based on substantial evidence.
`Because we find that substantial evidence supports the
`agency’s determination that BlueScope did not engage in
`reimbursement, we are also not persuaded by U.S. Steel’s
`argument that the agency erred as a matter of law in fail-
`ing to apply its reimbursement regulation. Like the trial
`court, in the absence of evidence demonstrating that BSA
`was reimbursed for the duties it paid, we find no departure
`from an established practice by the agency that would con-
`stitute reversible error. See U.S. Steel, 578 F. Supp. 3d at
`1333.
`
`IV
`We have considered the remainder of U.S. Steel’s argu-
`ments and find them unpersuasive. Accordingly, we affirm
`the Court of International Trade’s decision sustaining the
`Department of Commerce’s determination that BlueScope
`did not engage in antidumping duty reimbursement within
`the meaning of the statute.
`AFFIRMED
`
`