Celik Halat ve Tel Sanayi A.S. v. United States

• Decision Date: 15 February 2022
• Docket Number: Slip Op. No. 22-12,Court No. 21-00045
• Parties: CELIK HALAT VE TEL SANAYI A.S., Plaintiff, v. UNITED STATES, Defendant, and Insteel Wire Products Company, Sumiden Wire Products Corporation, and Wire Mesh Corp., Defendant-Intervenors.
• Court: U.S. Court of International Trade

557 F.Supp.3d 1348

CELIK HALAT VE TEL SANAYI A.S., Plaintiff,

v. UNITED STATES, Defendant,andInsteel Wire Products Company, Sumiden Wire Products Corporation, and Wire Mesh Corp., Defendant-Intervenors.

Slip Op. No. 22-12

Court No. 21-00045

United States Court of International Trade.

February 15, 2022

Irene H. Chen, Chen Law Group LLC, of Rockville, MD, for plaintiff Celik Halat ve Tel Sanayi A.S.

Miles K. Karson, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United States. With him on the submission were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Tara K. Hogan, Assistant Director. Of counsel on the submission was Jesus N. Saenz, Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Kathleen W. Cannon, Kelley Drye & Warren LLP, of Washington, DC, for defendant-intervenors Insteel Wire Products Company, Sumiden Wire Products Corporation, and Wire Mesh Corp. With her on the submission were Paul C. Rosenthal, R. Alan Luberda, Brooke M. Ringel, and Joshua R. Morey.

OPINION AND ORDER

Stanceu, Judge:

Plaintiff Celik Halat ve Tel Sanayi A.S. ("Celik Halat") contests a final determination that the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") issued in an antidumping duty ("AD") investigation of certain prestressed concrete steel wire strand ("PC strand" or the "subject merchandise") from the Republic of Turkey ("Turkey"), and the associated antidumping duty order (the "Order").

As a result of this final determination, imports of Celik Halat's merchandise are subject under the Order to an estimated dumping margin of 53.65% and an adjusted cash deposit rate of 44.60%. The high dumping margin resulted from a decision by Commerce to reject, in the entirety, Celik Halat's responses to Sections B and C of the Department's initial questionnaire because Celik Halat's representative filed a single exhibit to the Section B response 21 minutes after the 5:00 p.m. Eastern Time ("ET") filing deadline.

The court sets aside the contested determination as an abuse of agency discretion and remands the decision to Commerce for immediate corrective action.

I. BACKGROUND

A. The Contested Agency Determinations

The contested antidumping duty determination (the "Final Determination") is Prestressed Concrete Steel Wire Strand From Argentina, Colombia, Egypt, the Netherlands, Saudi Arabia, Taiwan, the Republic of Turkey, and the United Arab Emirates: Final Affirmative Determinations of Sales at Less Than Fair Value and Final Affirmative Critical Circumstances Determinations, in Part , 85 Fed. Reg. 80,001 (Int'l Trade Admin. Dec. 11, 2020) ("Final Determination "). The Final Determination incorporates by reference a "Final Issues and Decision Memorandum" containing explanatory discussion. Issues and Decision Memorandum for the Final Affirmative Determination in the Less-Than-Fair-Value Investigation of Prestressed Concrete Steel Wire Strand from Turkey (Int'l Trade Admin. Dec. 7, 2020) (P.R. Doc. 167) (" Final I &D Mem. ").¹

The Order was published on February 1, 2021. Prestressed Concrete Steel Wire Strand From Argentina, Colombia, Egypt, the Netherlands, Saudi Arabia, Taiwan, the Republic of Turkey, and the United Arab Emirates: Antidumping Duty Orders , 86 Fed. Reg. 7,703 (Int'l Trade Admin.) ("Order "). The Order describes PC strand as "produced from wire of non-stainless, non-galvanized steel, which is suitable for use in prestressed concrete (both pretensioned and post-tensioned) applications." Id. at 7,705. The "product definition encompasses covered and uncovered strand and all types, grades, and diameters of PC strand." Id.

B. The Parties

Plaintiff, a Turkish producer and exporter of PC strand, was a mandatory respondent in the antidumping duty investigation culminating in the Final Determination. See Compl. ¶¶ 3, 8 (Feb. 1, 2021), ECF No. 2.

Defendant is the United States. Defendant-intervenors Insteel Wire Products Company, Sumiden Wire Products Corporation, and Wire Mesh Corp. are U.S. domestic manufacturers of PC strand that were the petitioners in the antidumping duty investigation resulting in the contested determinations. Consent Mot. to Intervene as of Right 2 (Feb. 26, 2021), ECF No. 13.

C. Proceedings Before Commerce

On April 16, 2020, Commerce received from the petitioners an antidumping and countervailing duty petition addressed to imports of PC strand from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, Turkey, Ukraine, and the United Arab Emirates. Prestressed Concrete Steel Wire Strand from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, Turkey, Ukraine, and the United Arab Emirates – Petition for the Imposition of Antidumping and Countervailing Duties (P.R. Docs. 1–9). Commerce subsequently published an initiation notice for an antidumping duty investigation on PC strand from various countries, including, as is relevant here, Turkey. Prestressed Concrete Steel Wire Strand from Argentina, Colombia, Egypt, Indonesia, Italy, Malaysia, the Netherlands, Saudi Arabia, South Africa, Spain, Taiwan, Tunisia, the Republic of Turkey, Ukraine, and the United Arab Emirates: Initiation of Less-Than-Fair-Value Investigations , 85 Fed. Reg. 28,605 (Int'l Trade Admin. May 13, 2020) (P.R. Doc. 133). The period of investigation for the antidumping duty investigation was April 1, 2019 through March 31, 2020, pursuant to 19 C.F.R. § 351.204(b)(1). Id. at 28,606.

On June 18, 2020, Commerce chose Güney Çelik Hasir ve Demir and Celik Halat as the mandatory respondents in the antidumping duty investigation. Less-Than-Fair Value Investigation of Prestressed Concrete Steel Wire Strand from the Republic of Turkey: Respondent Selection 5–6 (Int'l Trade Admin) (P.R. Doc. 66). The following day, Commerce sent Celik Halat its initial questionnaire (the "Initial Questionnaire"), requesting that it respond to Section A (General Information), Section B (Sales in the Home Market or to Third Countries), Section C (Sales to the United States), and Section D (Cost of Production/Constructed Value). U.S. Dep't of Commerce Enforcement and Compliance Antidumping and Countervailing Duty Operations Office II Request for Information Antidumping Duty Investigation 2 (June 19, 2020) (P.R. Doc. 67).

On September 30, 2020, Commerce published the Preliminary Less-Than-Fair-Value Determination in its antidumping duty investigation (the "Preliminary Determination"), in which Commerce, invoking its "facts otherwise available" and "adverse inference" authorities under section 776(a) and (b), respectively, of the Tariff Act, 19 U.S.C. § 1677e(a) and (b),² preliminarily determined, based on information in the petition, an estimated dumping margin of 53.65% for entries of subject merchandise exported by Celik Halat, with a preliminary affirmative critical circumstances determination. Prestressed Concrete Steel Wire Strand From Argentina, Colombia, Egypt, the Netherlands, Saudi Arabia, the Republic of Turkey, and the United Arab Emirates: Preliminary Affirmative Determinations of Sales at Less Than Fair Value and Preliminary Affirmative Critical Circumstances Determinations, in Part , 85 Fed. Reg. 61,722, 61,723 –24 (Int'l Trade Admin) ("Prelim. Determination "). Incorporated by reference in the Preliminary Determination is an explanatory document, the " Preliminary Decision Memorandum." Decision Memorandum for the Preliminary Determination in the Less-Than-Fair Value Investigation of Prestressed Concrete Steel Wire Strand from the Republic of Turkey (Sept. 23, 2020) (P.R. Doc. 153). Commerce assigned the same preliminary 53.65% rate to Güney Çelik Hasir ve Demir, also based on 19 U.S.C. § 1677e, and also assigned that preliminary rate to all other Turkish exporters and producers of the subject merchandise. Prelim. Determination , 85 Fed. Reg. at 61,723 –24.

Commerce stated that it would direct U.S. Customs and Border Protection ("Customs") to suspend liquidation on all entries of PC strand from Turkey and to collect cash deposits of 53.65%. Id. at 61,724 –25.

On December 11, 2020, Commerce published its Final Less-than-Fair-Value Determination and, consistent with its Preliminary Determination, assigned estimated dumping margins of 53.65% to Celik Halat, Güney Çelik Hasir ve Demir, and all other Turkish exporters of the subject merchandise but reversed its earlier finding of critical circumstances as to Celik Halat. Final Determination , 85 Fed. Reg. at 80,001 –02.

On January 25, 2021, the U.S. International Trade Commission ("ITC") notified Commerce that it had reached a final affirmative determination that an industry in the United States was materially injured by reason of the less-than-fair-value imports of PC strand from Turkey. Order , 86 Fed. Reg. at 7,703. The ITC published its determination four days later.

Prestressed Concrete Steel Wire Strand From Argentina, Colombia, Egypt, Netherlands, Saudi Arabia, Taiwan, Turkey, and the United Arab Emirates , 86 Fed. Reg. 7,564 (Int'l Trade Comm'n Jan. 29, 2021). Commerce announced that it would direct Customs, effective on the date of publication in the Federal Register of the ITC's final affirmative injury determination, to continue to collect cash deposits of 53.65% on PC strand entries from Celik Halat. Order , 86 Fed. Reg. at 7,703 –04. Commerce published a correction to its Final Determination to reflect "adjusted cash deposit rates for the Turkey [less-than-fair-value] investigation after accounting for export subsidies in the companion countervailing duty investigation." Prestressed Concrete Steel Wire Strand From the Republic of Turkey: Notice of Correction to the Final Affirmative Determination of Sales at Less Than Fair Value , 86 Fed. Reg....