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

• Decision Date: 13 April 2020
• Docket Number: Slip Op. 20-46,Court No. 17-00183
• Citation: 456 F.Supp.3d 1263
• Parties: DEACERO S.A.P.I. DE C.V. and Deacero USA, Inc., Plaintiffs, v. UNITED STATES, Defendant, and Nucor Corporation, Defendant-Intervenor.
• Court: U.S. Court of International Trade

456 F.Supp.3d 1263

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

v. UNITED STATES, Defendant,andNucor Corporation, Defendant-Intervenor.

Slip Op. 20-46

Court No. 17-00183

United States Court of International Trade.

April 13, 2020

Rosa S. Jeong and Irwin P. Altschuler, Greenberg Traurig, LLP, of Washington, DC, for plaintiffs, Deacero S.A.P.I. de C.V. and Deacero USA, Inc.

Elizabeth Anne Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Tara K. Hogan, Assistant Director, Jeanne E. Davidson, Director, and Joseph H. Hunt, Assistant Attorney General. Of Counsel on the brief was Emma Thomson Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Alan Hayden Price, Daniel Brian Pickard, and Derick G. Holt, Wiley Rein, LLP, of Washington, DC, for defendant-intervenor, Nucor Corporation.

OPINION AND ORDER

Kelly, Judge:

Before the court is the U.S. Department of Commerce's ("Commerce") second remand redetermination filed pursuant to the court's order in Deacero S.A.P.I. de C.V. v. United States, 43 CIT ––––, ––––, 393 F. Supp. 3d 1280 (2019) (" Deacero II"). See Final Results of Redetermination Pursuant to Ct. Remand [in Deacero II ] Confidential Version, Oct. 29, 2019, ECF No. 71-1. ("Second Remand Results"); see also Deacero S.A.P.I. de C.V. v. United States, 42 CIT ––––, ––––, 353 F. Supp. 3d 1303, 1314–15 (2018) (" Deacero I").

Deacero II ruled that Commerce failed to comply with the court's instruction to produce the documents upon which it relied to corroborate the 40.52% petition rate it assigned to respondent as total facts available with an adverse inference ("AFA")¹ in the 2014–2015 administrative review of the antidumping duty ("ADD") order covering carbon and certain alloy steel wire rod from Mexico.² See Deacero II, 43 CIT at ––––, 393 F. Supp. 3d at 1281, 1285–87 ; see also Final Results of Redetermination Pursuant to Ct. Remand [in Deacero I ], Mar. 15, 2019, ECF No. 58-1 ("Remand Results"); Carbon and Certain Alloy Steel Wire Rod From Mexico, 82 Fed. Reg. 23,190 (Dep't Commerce May 22, 2017) (final results of [ADD] admin. review and final determination of no shipments; 2014–2015) ("Final Results") and accompanying Decision Memo. for [the Final Results ], A-201-830, (May 15, 2017), ECF No. 21-5 ("Final Decision Memo."); Carbon and Certain Alloy Steel Wire Rod from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 67 Fed. Reg. 65,945, 65,947 (Dep't Commerce Oct. 29, 2002) (notice of [ADD] orders) ("ADD Order"). The court remanded the determination to Commerce for further explanation or reconsideration consistent with its opinion.

For its second remand redetermination, Commerce placed on the record pre-initiation documents from ADD Order; further, Commerce has placed Deacero's margin calculations, and a table summarizing Deacero's individual transaction-specific margins in the administrative review of the ADD Order that immediately precedes the review at issue. Second Remand Results at 1–2; see also Carbon and Certain Alloy Steel Wire Rod From Mexico, 81 Fed. Reg. 41,521 (Dep't Commerce June 27, 2016) (amended final results of [ADD] admin. review; 2013–2014). Commerce explains that the factual information it has placed on the record demonstrates that the 40.52 percent petition rate has probative value for use as the AFA rate assigned to Deacero. See Second Remand Results at 2–8. For the following reasons, Commerce's Second Remand Results are sustained.

BACKGROUND

The court assumes familiarity with the facts of this case as set out in the prior two opinions, and here recounts only the facts relevant to the court's review of the Second Remand Results. See Deacero I, 42 CIT at ––––, 353 F. Supp. 3d at 1306 ; Deacero II, 43 CIT at ––––, 393 F. Supp. 3d at 1282–83. Commerce initiated an administrative review covering subject merchandise entered during the period of October 1, 2014, through September 30, 2015, with respondent Deacero S.A.P.I de C.V. ("Deacero" or "respondent") listed as one of the companies to be reviewed. See Initiation of Antidumping and Countervailing Duty Admin. Reviews, 80 Fed. Reg. 75,657, 75,658 (Dep't Commerce Dec. 3, 2015). Commerce, pursuant to section 776 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677e,³ used total AFA to calculate Deacero's final dumping margin after determining that Deacero impeded its review process. See Deacero II, 43 CIT at ––––, 393 F. Supp. 3d at 1282 ; see also Final Decision Memo. at 4–8, 12. Commerce chose the highest margin alleged in the 2001 petition—40.52%—as Deacero's final weighted-average dumping margin. See Final Decision Memo. at 8–9 & n.33; Final Results, 82 Fed. Reg. at 23,190.

The court sustained Commerce's total-AFA determination, see Deacero I, 42 CIT at ––––, 353 F. Supp. 3d at 1307–12, 1314, but twice remanded for further explanation or reconsideration Commerce's decision to rely on the 40.52% rate due to the lack of record information that would corroborate that rate, as required by 19 U.S.C. § 1677e(c)(1) and 19 C.F.R. § 351.308(d) (2015).⁴ See id. at ––––, 353 F. Supp. 3d at 1312–15 ; Deacero II, 43 CIT at ––––, 393 F. Supp. 3d at 1285–87. In both instances, the record documents upon which Commerce relied contained conclusory pronouncements that did not demonstrate the probative value of the 40.52% petition rate. See Deacero I, 42 CIT at ––––, 353 F. Supp. 3d at 1313–15 ; Deacero II, 43 CIT at ––––, 393 F. Supp. 3d at 1283–87.⁵

Commerce filed the Second Remand Results on October 30, 2019. On remand, Commerce placed on the record the following pre-initiation documents:

(1) the business proprietary and public versions of Volume II of the Petition; (2) the business proprietary and public versions of three supplements to the Petition that the petitioner placed on the record of the underlying investigation prior to the Wire Rod from Mexico LTFV Initiation; (3) the business proprietary and public versions of a memorandum to the file filed prior to the Wire Rod from Mexico LTFV Initiation in which Commerce interviewed the market researcher who obtained the home market price quotes contained in the Petition; and (4) an ex parte memorandum to the file in which Commerce officials discussed questions regarding affidavits and foreign market research contained in petition supplemental questionnaires issued to the petitioner.

Second Remand Results at 2, 4–8 (footnotes omitted and italics removed); New Factual Info. Memo. ("NFI Memo."), CRRR 1, bar code 3886959-01 (Sept. 4, 2019), NFI Memo. at Attach. 1.A, CRRR 2, bar code 3886959-02 (Aug. 31, 2001) ("Petition"); NFI Memo. at Attachs. 1.B, 1.C pt.1–pt. 2, and 1.D, CRRRs 3–6, bar codes 3886959-03–06 (Sept. 4, 2019) ("Sept. 6^th Supplemental Filing," "Sept. 10^th Supplemental Filing," and "Sept. 17^th Supplemental Filing," respectively); NFI Memo. at Attach. 1.E, CRRR 7, bar code 3886959-07 ("Telephone Memo."); NFI Memo. at Attach. 1.F, CRRR 8, bar code 3886959-08 ("Sept. 17^th Ex Parte Memo.").⁶ Further, Commerce placed on the record "Deacero's margin calculations from the 2013-2014 [antidumping] administrative review," Second Remand Results. at 7 (citing NFI Memo. at Attachs. 2.A.–2.L, CRRRs 9–23, bar codes 3886959-09–23 (Sept. 23, 2019)); Amendment to NFI Memo. at Attachs. 2.H., 2.K.1, CRRRs 25, 26, bar codes 3891062-02–03)), "as well as a summary table that lists the individual margin transactions calculated for Deacero in the 2013-2014 administrative review." Id. at 2, 6 (citing NFI Memo. at Attach. 2L, CRRR 23, bar code 3886959-23 (Sept. 4, 2019)).

Deacero and Deacero USA, Inc. (collectively, "Plaintiffs") argue that Commerce failed to satisfy the statutory corroboration requirement because its analysis of the record documents fails to demonstrate the probative value of the 40.52% rate. See Pls. [Deacero] and Deacero USA, Inc.'s Cmts. Opp'n Remand Redetermination Confidential Version, Dec. 13, 2019, ECF No. 77 ("Pls.' Br."). Plaintiffs also assert that further remand would be futile and request the court to instruct Commerce to select an "AFA rate from average weighted margins calculated for Deacero or another respondent in a prior segment." See Pls.' Br. at 1–2, 15–17. Defendant-Intervenor Nucor Corporation ("Nucor") filed comments supporting the agency's position. See Def.-Intervenor [Nucor's] Cmts. [Second Remand Results ] Revised Confidential Version at 6–15, Dec. 13, 2019, ECF No. 80 ("Nucor's Br.").

JURSIDCTION AND STANDARD OF REVIEW

The Court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c) (2012). Commerce's antidumping determinations must be in accordance with law and supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court's remand order.’ " Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT ––––, ––––, 968 F. Supp. 2d 1255, 1259 (2014) (quoting Nakornthai Strip Mill Public Co. v. United States, 32 C.I.T. 1272, 1274, 587 F. Supp. 2d 1303, 1306 (2008) ).

DISCUSSION

Deacero argues that Commerce has failed to corroborate the petition rate with independent sources. See Pls.' Br. at 1–2, 7–13. Defendant and Defendant-Intervenor counter that the pre-initiation documents, as well as documents used to calculate transaction specific margins in the 2013-2014 review, suffice to corroborate the petition rate. See Def.'s Resp. Cmts. [Second Remand Results ] at 5–6, 9–20, Jan. 31, 2020, ECF No. 82; Nucor's Br. at 6–14. For the following reasons, Commerce's determination in the Second Remand Results complies with the court's remand order, is supported by substantial evidence, and is sustained.

When Commerce relies on secondary information not obtained in the course of an investigation or review, such as allegations in a...