Grupo Simec S.A.B. de. C.V. v. United States

• Decision Date: 24 February 2023
• Docket Number: 22-cv-00202
• Parties: GRUPO SIMEC S.A.B. de C.V. et al., Plaintiffs, v. UNITED STATES, Defendant, and REBAR TRADE ACTION COALITION, Defendant-Intervenor.
• Court: U.S. Court of International Trade

GRUPO SIMEC S.A.B. de C.V. et al., Plaintiffs, v. UNITED STATES, Defendant, and REBAR TRADE ACTION COALITION, Defendant-Intervenor. Slip-Op. 23-22

No. 22-cv-00202

Court of Appeals of International Trade

February 24, 2023

James L. Rogers, Jr., Nelson Mullins Riley & Scarborough LLP of Greenville, SC, for Plaintiffs Grupo Simec S.A.B. de C.V. et. al.

Kara M. Westercamp, Trial Attorney, U.S. Department of Justice, of Washington, DC, for the Defendant. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, L. Misha Preheim Assistant Director, U.S. Department of Justice, Commercial Litigation Branch, and Ian A. McInerney, Of Counsel, U.S Department of Commerce, Office of the Chief Counsel for Trade Enforcement and Compliance.

John R. Shane, Wiley Rein LLP, of Washington, DC, for the Defendant-Intervenor. With him on the brief were Alan H. Price, Maureen O. Thorson, Jeffrey O. Frank, and Paul J. Coyle.

Before: Stephen Alexander Vaden, Judge

OPINION [DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION.]

Stephen Alexander Vaden Judge

On August 8, 2022, Grupo Simec S.A.B. de C.V. (including fourteen subsidiaries, collectively, Grupo Simec) filed a complaint challenging the Final Results of the Department of Commerce's (Commerce) Administrative Review in Steel Concrete Reinforcing Bar from Mexico: Final Results of Antidumping Duty Administrative Review, 2019-2020 (Final Results), 87 Fed.Reg. 34,848 (June 8, 2022). Compl. ¶ 1, ECF. No 8. On the consent of all the parties, Chief Judge Barnett issued an order enjoining liquidation on August 19, 2022. ECF No. 10. Citing USCIT Rules 7 and 65(a), Grupo Simec now seeks a further injunction. It moves to enjoin U.S. Customs and Border Protection (Customs) from collecting cash deposits at the rate set forth in the contested Final Results. Pls.' Am. Mot. Prelim. Inj. (Pls.' Mot.), ECF No. 32. Commerce opposes this remedy, as does Defendant-Intervenor Rebar Trade Coalition (the Coalition). For the reasons that follow, the Motion to enjoin Customs from requiring Plaintiffs to pay cash deposits is DENIED.

BACKGROUND

I. Procedural History

On November 6, 2014, Commerce issued an antidumping duty order on concrete reinforcing bar (rebar) from Mexico. Steel Concrete Reinforcing Bar from Mexico: Antidumping Duty Order, 79 Fed.Reg. 65,925 (Nov. 6, 2014). Commerce began an annual review of the order on January 6, 2021. See Initiation of Antidumping Duty and Countervailing Duty Administrative Reviews, 86 Fed.Reg. 511, 513 (Jan. 6, 2021). The agency selected Grupo Simec and Deacero S.A.P.I. de C.V. as mandatory respondents on February 8, 2021. See Steel Concrete Reinforcing Bar from Mexico: Preliminary Results of Antidumping Duty Administrative Review; 2019-2020 (Preliminary Results), 86 Fed Reg. 68,632, 68,633 (Dec. 3, 2021). Commerce chose Grupo Simec because it was one of "the two largest exporters and/or producers of subject merchandise by volume during the [period of review.]" Preliminary Decision Memorandum (PDM) at 2, Barcode: 4186374-02 A-201-844 REV. The agency then issued an initial antidumping questionnaire to Grupo Simec on February 8, 2021. Id. at 2.

Grupo Simec submitted multiple extension requests for the various sections of its questionnaire responses, citing challenges caused by COVID-19 restrictions, the amount of data requested, and electricity blackouts. See, e.g., Section A Extension Request (Feb. 23, 2021) Barcode: 4090967-01 A-201-844 REV. Commerce granted a number of partial and full extensions in response to these requests. See, e.g., Extension of Time Section A Response (Feb. 23, 2021), Barcode: 4091001-01 A-201-844 REV. Grupo Simec then filed its responses on March 8, March 31, and April 7, 2021, respectively. Section A Questionnaire Response, Barcode: 4095785-01 A-201-844 REV; Section B &C Questionnaire Response, Barcode: 4105401-01 A-201-844 REV; Section D Response, Barcode: 4107846-01 A-201-844 REV.

Because of deficiencies in Grupo Simec's initial questionnaire responses, Commerce issued a first supplemental questionnaire focusing on Sections A-C of Grupo Simec's initial responses on July 27, 2021, and a second supplemental questionnaire focusing on Sections A and D on August 4, 2021. First Supplemental Questionnaire Barcode: 4146957-01 A-201-844 REV; Second Supplemental Questionnaire, Barcode: 4149597-01 A-201-844 REV. The first supplemental questionnaire had an initial deadline of August 17, 2021, and the second supplemental questionnaire had a deadline of August 11, 2021. Id. Shortly thereafter, Grupo Simec again requested a series of extensions for both questionnaires, citing the large amount of data Commerce requested as well as continued challenges from the pandemic such as loss of staff. See, e.g., Extension Request (Aug. 9, 2021), Barcode: 4151182-01 A-201-844 REV. Again, Commerce granted a number of partial extensions. See, e.g., Extension of Time for Grupo Simec's Supplemental Questionnaire Responses (Aug 10, 2021), Barcode: 4151379-01 A-201-844 REV.

With Commerce's extensions, Grupo Simec's Section A-C responses were due on September 7, 2021, and its Section A &D responses were due on September 9, 2021. Extension of Time for Section A-C Responses (Sept. 1, 2021), Barcode: 4157267-01 A-201-844 REV; Extension of Time for Section A &D Responses (Sept. 3, 2021), Barcode: 4157901-01 A-201-844 REV. Despite these extensions, on September 6, 2021, Grupo Simec filed another request for a two week extension to answer specific questions in its Section A-C questionnaire that were due the following day. Extension Request for Downstream Sales Data, Barcode: 4158024-01 A-201-844 REV. Commerce denied this request because Grupo Simec had already "been provided six weeks to prepare and submit their responses," and the request lacked any justification for why additional time was needed. Denial of Extension (Sept. 7, 2021), Barcode: 4158116-01 A-201-844 REV. In response to this denial, Grupo Simec filed another request and reiterated the same points from its previous letters, such as the difficulty of gathering the data given the geographic dispersion of the company and pandemic-related issues. Second Extension Request for Downstream Sales Data (Sept. 7, 2021), Barcode: 4158573-01 A-201-844 REV. The agency denied this request because it had already "provided three additional weeks for Grupo Simec ... to respond to Commerce's supplemental questionnaire covering sections A-C[.]" Denial of Extension Request at 1 (Sept. 9, 2021), Barcode: 4159298-01 A-201-844 REV. Grupo Simec also requested a one day extension on September 9, 2021, for its Section A&D responses, which Commerce granted. See Section A&D Extension Request, Barcode: 4159299-01 A-201-844 REV; Granting Extension Request (Sept. 9, 2021), Barcode: 4159336-01 A-201-844 REV. Grupo Simec filed its Section A&D responses on September 10, 2021. Submission of Section A&D Supplemental Questionnaire Response, Barcode: 4160054-01 A-201-844 REV.

Over a month later, Grupo Simec attempted to submit what it labeled "Additional Factual Information" to Commerce, consisting of its downstream sales data as well as some translations "inadvertently stripped by computer operation from the documents in the Commerce ACCESS filing process." Submission of Additional Information at 2 (Oct. 18, 2021), Barcode: 4172584-01 A-201-844 REV. Because these submissions contained information originally requested in the supplemental questionnaires, Commerce rejected them as untimely filed. Rejection of Untimely Filed Information (Oct. 19, 2021), Barcode: 4173540-01 A-201-844 REV.

On December 3, 2021, Commerce issued its Preliminary Results and its accompanying explanation in the Preliminary Decision Memorandum. Preliminary Results, 86 Fed Reg. 68,632; PDM, Barcode: 4186374-02 A-201-844 REV. A review of Grupo Simec's initial questionnaire responses found "deficiencies [that] covered all aspects of Grupo Simec's responses[.]" PDM at 4, Barcode: 4186374-02 A-201-844 REV. Commerce determined that Grupo Simec's supplemental questionnaire responses "continued to fail to provide information Commerce requested," and pervasive errors remained in Grupo Simec's home market sales data, U.S. sales data, and downstream sales data. Id. at 5. Commerce concluded that "it d[id] not have any sales-related information that can be used for conducting a dumping analysis," prompting the application of facts available under 19 U.S.C. § 1677m(e)(3). Id. at 7. Commerce did not rest there; it also drew adverse inferences from facts otherwise available under 19 U.S.C. § 1677m(d). It explained that "Grupo Simec has failed to cooperate by not acting to the best of its ability in failing to remedy the errors identified by Commerce as well as failing to submit requested information within the established deadline." Id. at 8. Commerce then preliminarily assigned a 66.7% dumping margin to Grupo Simec, which was the rate given to it in the original 2014 antidumping investigation. Id. at 9.

In its Final Results, Commerce maintained substantially the same position. See Final Results, 87 Fed.Reg. at 38,849-50; Issues &Decision Memorandum (IDM), Barcode: 4247887-02 A-201-844 REV. The Final Results defended Commerce's (1) refusal to give Grupo Simec more time to cure its deficiencies and to issue an additional questionnaire, (2) rejection of Grupo Simec's late submission, (3) drawing of adverse inferences from facts otherwise available, and (4) assignment of a 66.7% dumping rate to Grupo Simec. IDM at 4-35.; Barcode: 4247887-02 A-201-844 REV.

First Commerce explained that it issued two supplemental questionnaires to Grupo Simec and granted multiple extensions, giving Grupo Simec approximately six weeks to...