Deacero S.A.P.I. de C.V. v. United States

• Decision Date: 13 April 2021
• Docket Number: 2020-1918
• Citation: 996 F.3d 1283
• Parties: DEACERO S.A.P.I. DE C.V., Deacero USA, Inc., Plaintiffs-Appellants v. UNITED STATES, Nucor Corporation, Defendants-Appellees
• Court: U.S. Court of Appeals — Federal Circuit

996 F.3d 1283

DEACERO S.A.P.I. DE C.V., Deacero USA, Inc., Plaintiffs-Appellants

v.UNITED STATES, Nucor Corporation, Defendants-Appellees

2020-1918

United States Court of Appeals, Federal Circuit.

Sealed Opinion Issued: April 13, 2021

Public Opinion Issued: April 30, 2021^*

Sonali Dohale, Greenberg Traurig, LLP, Washington, DC, argued for plaintiffs-appellants. Also represented by Rosa Jeong, Franchiny Manuel Ovalle.

Kelly A. Krystyniak, Commercial Litigation Branch, Civil Division, United States Department of Justice, argued for defendant-appellee United States. Also represented by Brian M. Boynton, Jeanne Davidson, Tara K.

Hogan, Kara Westercamp ; Leslie Mae Lewis, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, Capitol Heights, MD.

Derick Holt, Wiley Rein, LLP, argued for defendant-appellee Nucor Corporation. Also represented by Tessa V. Capeloto, Daniel B. Pickard, Alan H. Price, Maureen E. Thorson.

Before Wallach, Chen, and Hughes, Circuit Judges.

Wallach, Circuit Judge.

Appellants, Deacero S.A.P.I. de C.V. and Deacero USA, Inc. (together, "Deacero"), filed suit against Appellee, the United States ("Government"), in the U.S. Court of International Trade ("CIT"), challenging the U.S. Department of Commerce's ("Commerce") final results in the 2014–2015 administrative review of the antidumping ("antidumping" or "AD") duty order covering carbon and certain alloy steel wire rod from Mexico. See Carbon and Certain Alloy Steel Wire Rod from Mexico: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2014–2015 ("Final Results"), 82 Fed. Reg. 23,190 (May 22, 2017).¹ Appellee, Nucor Corporation ("Nucor"), participated as a defendant-intervenor. The CIT "sustain[ed] [Commerce's] determination to apply total facts available with an adverse inference (‘AFA’)," Deacero I , 353 F. Supp. 3d at 1306, but remanded to Commerce twice for "further explanation or reconsideration" of "Commerce's selection of 40.52 [percent] as the AFA rate," id. ; see Deacero S.A.P.I. de C.V. v. United States (Deacero II ), 393 F. Supp. 3d 1280, 1281 (Ct. Int'l Trade 2019) (concluding that "Commerce's [first] [r]emand [r]esults d[id] not comply with the [CIT's] remand order in Deacero I and its decision to apply the 40.52 [percent] AFA-rate to Deacero continues to be unsupported by substantial evidence"); J.A. 1644–60 (First Remand Results). After Commerce placed additional information on the record corroborating the 40.52 percent rate, the CIT sustained Commerce's second remand results. See Deacero S.A.P.I. de C.V. v. United States (Deacero III ), 456 F. Supp. 3d 1263, 1265 (Ct. Int'l Trade 2020) ; J.A. 68–69 (Judgment), 4960–80 (Second Remand Results).

Deacero appeals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5). We affirm.

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(1).² Domestic industries may seek "relief from [such] imports," 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). Each year after the order is published, "if [Commerce receives] a request for ... review" of that order from an interested party, Commerce will "review[ ] and determine ... the amount of any antidumping duty" under the order. Id. § 1675(a)(1)(B); see 19 C.F.R. § 351.213(b) (providing for the "[a]dministrative review of orders" on the request of "an interested party").³

In the course of an investigation or review, Commerce "determine[s] the estimated weighted average dumping margin for each exporter and producer individually investigated" or reviewed and "the estimated all-others rate for all exporters and producers not individually investigated" or reviewed. 19 U.S.C. § 1673d(c)(1)(B)(i) ; see id. § 1677f-1(c) (providing for the "[d]etermination of dumping margin[s]" in investigations and reviews for "a reasonable number of exporters or producers"). 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 a 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").

In the course of an investigation or review, if Commerce determines that "necessary information is not available on the record," 19 U.S.C. § 1677e(a)(1), or "an interested party or any other person ... withholds information that has been requested by [Commerce]," "fails to provide such information by the deadlines ... or in the form and manner requested," "significantly impede[d] a proceeding," or "provides such information but the information cannot be verified," id. § 1677e(a)(2)(A)–(D), then Commerce "shall, subject to [ 19 U.S.C. § 1677m(d) ], use facts otherwise available" in making its determination, id. § 1677e(a) ; see 19 C.F.R. § 351.308(a) (similar); see also 19 U.S.C. § 1677m(d) (providing that if Commerce "determines that a response to a request for information ... does not comply with the request," Commerce "shall promptly inform" the respondent "of the deficiency and shall, to the extent practicable, provide that [respondent] with an opportunity to remedy or explain the deficiency").

Further, if Commerce "finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information," then Commerce "may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available." 19 U.S.C. § 1677e(b)(1)(A). In making this determination, Commerce may consider "information derived from": "the petition," the "final determination in the investigation," "any previous [administrative] review," or "any other information placed on the record." 19 U.S.C. § 1677e(b)(2). When Commerce "relies on secondary information rather than on information obtained in the course of an investigation or review," it "shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." 19 U.S.C. § 1677e(c)(1) ; see Nan Ya Plastics Corp. v. United States , 810 F.3d 1333, 1338 (Fed. Cir. 2016) ("Secondary information does not include information obtained from the subject [review], which is known as ‘primary information.’ ").

II. Procedural History

A. The Investigation and AD Duty Order

In August 2001, three domestic producers ("Petitioners") petitioned Commerce, "alleg[ing] that imports of carbon and certain alloy steel wire rod" from Mexico, were being, or were likely to be "sold in the United States at less than fair value" and "that such imports [were] materially injuring, or [were] threatening to materially injure, an industry in the United States." Notice of Initiation of Antidumping Duty Investigations: Carbon and Certain Alloy Steel Wire Rod From Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, South Africa, Trinidad and Tobago, Ukraine, and Venezuela ("Investigation Initiation Notice"), 66 Fed. Reg. 50,164, 50,164 (Oct. 2, 2001) ; see J.A. 1695–1759 (Petition). Petitioners alleged that "[p]ricing and cost information available to [P]etitioners confirm[ed] that carbon and certain steel wire rod ... from Mexico [wa]s being sold, or offered for sale, in the United States at less than fair value." J.A. 1698. Following the Petition, the Petitioners submitted various supporting documents and research ("the Petition Supplements") to support their dumping allegations. J.A. 1695–1759 (Supplement 1.A), 1760–67 (Supplement 1.B), 1768–1855 (Supplement 1.C), 1856–1919 (Supplement 1.D), 1920–21 (Supplement 1.E), 1922–23 (Supplement 1.F). "Where the [P]etitioners obtained data from foreign market research, [Commerce] contacted the researchers to establish their credentials and to confirm the validity of the information being provided." Investigation Initiation Notice, 66 Fed. Reg. at 50,165.

Based on the Petition, Commerce calculated a potential dumping margin of 29.63 to 40.52 percent for Mexican producers. Id. ; see id. ("The sources of data for the deductions and adjustments relating to home market price, U.S. price, constructed value ... and factors of production ... are detailed in the Initiation Checklist."). Commerce concluded that the "country-wide import statistics for the anticipated period of investigation ... and price quotes based on market research used to calculate the estimated margin[ ] for [Mexico] [were] sufficient for purposes of initiation," and, in October 2001, initiated an antidumping duty investigation. Id. at 50,164 –65.

In October 2002, following affirmative determinations of less-than-fair-value imports from Mexico and resulting material injury to...