Pro-Team Coil Nail Enter., Inc. v. United States, Slip Op. 19-169

• Decision Date: 19 December 2019
• Docket Number: Consol. Court No. 18-00027,Slip Op. 19-169
• Parties: PRO-TEAM COIL NAIL ENTERPRISE, INC., et al., Plaintiffs, Unicatch Industrial Co., Ltd., et al., Consolidated Plaintiffs, and S.T.O. Industries, Inc., Plaintiff-Intervenor, v. UNITED STATES, Defendant, and Mid Continent Steel & Wire, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

419 F.Supp.3d 1319

PRO-TEAM COIL NAIL ENTERPRISE, INC., et al., Plaintiffs,Unicatch Industrial Co., Ltd., et al., Consolidated Plaintiffs,andS.T.O. Industries, Inc., Plaintiff-Intervenor,

v. UNITED STATES, Defendant,andMid Continent Steel & Wire, Inc., Defendant-Intervenor.

Slip Op. 19-169

Consol. Court No. 18-00027

United States Court of International Trade.

Dated: December 19, 2019

Ned H. Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, argued for Plaintiffs Pro-Team Coil Enterprise, Inc. and PT Enterprise Inc., Consolidated Plaintiffs Unicatch Industrial Co., Ltd. and TC International, Inc., and Consolidated Plaintiffs Hor Liang Industrial Corp., and Romp Coil Nails Industries Inc. With him on the briefs were Max F. Shutzman and Andrew T. Schutz.

John R. Magnus, TradeWins LLC, of Washington, DC, argued for Consolidated Plaintiff PrimeSource Building Products, Inc.

Ronald M. Wisla, Lizbeth R. Levinson, and Brittney R. Powell, Fox Rothschild LLP, of Washington, DC, for Plaintiff-Intervenor S.T.O. Industries, Inc.

Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Natan P.L. Tubman, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Adam Gordon, The Bristol Group LLC, of Washington, DC, argued for Defendant-Intervenor Mid Continent Steel & Wire, Inc. With him on the brief was Ping Gong.

OPINION AND ORDER

Barnett, Judge:

This consolidated action is before the court on five motions for judgment on the agency record pursuant to U.S. Court of International Trade ("CIT") Rule 56.2 challenging the final results of the U.S. Department of Commerce's ("Commerce" or "the agency") first administrative review of the antidumping duty order on certain steel nails from Taiwan. See Certain Steel Nails From Taiwan , 83 Fed. Reg. 6,163 (Dep't Commerce Feb. 13, 2018) (final results of antidumping duty admin. review and partial rescission of admin. review; 2015-2016) (" Final Results "), ECF No. 20-2, and accompanying Issues and Decision Mem, A-583-854 (Feb. 6, 2018) ("I & D Mem."), ECF No. 20-3.¹

Plaintiff Pro-Team Coil Nail Enterprise, Inc. ("Pro-Team") is a Taiwanese producer of subject merchandise; Plaintiff PT Enterprise Inc. ("PT") is Pro-Team's affiliated exporter. PT and Pro-Team (together, "PT/Pro-Team") contest Commerce's use of total facts otherwise available with an adverse inference (referred to as "total adverse facts available" or "total AFA") on the basis that PT/Pro-Team failed to timely provide quantity and value ("Q & V") figures concerning Pro-Team's home market sales and never provided the figures in the form and manner requested. Confidential Pls.' Mot. for J. on the Agency R., ECF No. 30, and Confidential Mem. of Law in Supp. of [ ] Pls.', Pro-Team Coil Nail Enter., Inc. and PT Enter. Inc. Mot. for J. on the Agency R. ("PT/Pro-Team's Mem."), ECF No. 30; Confidential Pl. PT's Reply to Def.'s Opp'n to PT's Mot. for J. on the Agency R. ("PT/Pro-Team's Reply"), ECF No. 44.

Consolidated Plaintiff Unicatch Industrial Co., Ltd. ("Unicatch") is a Taiwanese producer of subject merchandise; Consolidated Plaintiff TC International, Inc. ("TC Int'l") is Unicatch's affiliated U.S. reseller. Unicatch and TC Int'l (together, "TC/Unicatch") contest Commerce's use of total AFA to determine Unicatch's margin after concluding that Unicatch failed to provide a complete cost reconciliation. Confidential Pls.' Mot. for J. on the Agency R., ECF No. 32, and Confidential Mem. of Law in Supp. of Consol. Pls', Unicatch Indus. Co., Ltd. and TC Int'l, Inc. Mot. for J. on the Agency R. ("TC/Unicatch's Mem."), ECF No. 32; Confidential Pl. Unicatch's Reply to Def.'s Opp'n to Unicatch's Mot. for J. on the Agency R. (TC/Unicatch's Reply"), ECF No. 46.

Consolidated Plaintiff PrimeSource Building Products, Inc. ("PrimeSource"), a U.S. importer of subject merchandise, contests Commerce's decision to assign PT/Pro-Team and Unicatch rates based on total adverse facts available. Mot. for J. Upon the Agency R. under Rule 56.2 of Consol. Pl. PrimeSource Building Prods., Inc., ECF No. 29, and Mem. of P & A in Supp. of Rule 56.2 Mot. for J. on the Agency R by Consol. Pl. PrimeSource Building Prods. Inc. ("PrimeSource's Mem."), ECF No. 29-1; Pl. PrimeSource's Resp. to Def.'s Opp'n to Mot. for J. on the Agency R. ("PrimeSource's Reply"), ECF No. 43.

Consolidated Plaintiffs Hor Liang Industrial Corp. ("Hor Liang") and Romp Coil Nails Industries ("Romp") (together, "HL/Romp") are Taiwanese producers and exporters of subject merchandise that were not selected for individual examination and received the "all-others" rate based on PT/Pro-Team's and Unicatch's adverse rates. HL/Romp challenge Commerce's summary denial of their ministerial error allegation and seek to preserve their right to obtain a revised rate in the event that PT/Pro-Team or TC/Unicatch succeed in their challenges. Pls.' Mot. for J. on the Agency R., ECF No. 34, and Mem. of Law in Supp. of Consol. Pls., Hor Liang Indus. Corp. and Romp Coil Nails Indus. Inc. Mot for J. on the Agency R. ("HL/Romp's Mem.") at 2, ECF No. 34; Pls. Hor Liang Indus. Corp. and Romp Coil Nails Indus. Inc.'s Reply to Def.'s Opp'n to Pls.' Mot. for J. on the Agency R., ECF No. 48.

Plaintiff-Intervenor S.T.O. Industries, Inc. ("S.T.O. Industries"), a U.S. importer of subject merchandise, supports the motions filed by PT/Pro-Team and TC/Unicatch. See Pl.-Int.'s Mot. for J. on the Agency R. ("S.T.O.'s Mot."), ECF No. 35.

Defendant United States ("the Government") and Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent"), a domestic producer of subject merchandise and the petitioner in the underlying proceeding, defend the Final Results . Confidential Def.'s Mem. in Opp'n to Pls.' R. 56.2 Mots. for J. upon the Admin. R. ("Gov't's Resp."), ECF No. 37; Def.-Int.'s Resp. Br. ("Mid Continent's Resp."), ECF No. 42.

For the reasons discussed herein, the court remands Commerce's use of the facts otherwise available with respect to PT/Pro-Team; remands Commerce's use of an adverse inference when selecting from among the facts otherwise available with respect to Unicatch; declines to reach HL/Romp's first claim; and defers resolving HL/Romp's second claim.

BACKGROUND

In July 2015, Commerce issued an order imposing antidumping duties on certain steel nails from Taiwan. See Certain Steel Nails From the Republic of Korea, Malaysia, the Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam , 80 Fed. Reg. 39,994, 39,996 (Dep't Commerce July, 13, 2015) (antidumping duty orders). In September 2016, Commerce initiated the first administrative review of that order. Initiation of Antidumping and Countervailing Duty Admin. Reviews , 81 Fed. Reg. 62,720 (Dep't Commerce Sept. 12, 2016). The period of review ("POR") was May 20, 2015, through June 30, 2016. Id. at 62,722.

Commerce initially selected PT and Bonuts Hardware Logistics Co., LLC ("Bonuts") as mandatory respondents. Selection of Respondents for the 2015–2016 Admin. Review of the Antidumping Duty Order on Certain Steel Nails from Taiwan (Nov. 29, 2016) at 1, PR 38, CJA Vol. I, Tab 3. On February 9, 2017, Commerce selected Unicatch as an additional mandatory respondent after Bonuts indicated its intent not to participate in the review. Selection of Additional Mandatory Respondent (Feb. 9, 2017) at 1, 3–4, PR 76, CJA Vol. II, Tab 17.

On August 7, 2017, Commerce published its preliminary results. Certain Steel Nails From Taiwan , 82 Fed. Reg. 36,744 (Dep't Commerce Aug. 7, 2017) (prelim. results of antidumping duty admin. review and partial rescission of admin. review; 2015–2016) (" Preliminary Results "), PR 154, PJA Tab 29. Commerce used total adverse facts available to assign PT/Pro-Team and Bonuts preliminary weighted-average dumping margins of 78.17 percent—the dumping margin alleged in the petition underlying the original investigation. Id. at 36,744 –45; Decision Mem. for Prelim. Results of Antidumping Duty Admin. Review (July 31, 2017) ("Prelim. Mem.") at 12–13, PR 155, PJA Tab 30. Commerce preliminarily calculated a company-specific weighted-average dumping margin of 34.20 percent for Unicatch. Prelim. Results , 82 Fed. Reg. at 36,745. In accordance with 19 U.S.C. § 1673d, Commerce preliminarily assigned Unicatch's calculated rate to Romp and Hor Liang. Prelim. Results , 82 Fed. Reg. at 36,744.²

Commerce published the Final Results on February 13, 2018. In a change from the Preliminary Results , Commerce used total AFA to determine the rate for Unicatch as well as PT/Pro-Team and Bonuts; thus, all individually-examined respondents received final dumping margins of 78.17 percent. Id. at 6,164. Consequently, the all-others rate assigned to Romp and Hor Liang increased to 78.17 percent to reflect "the rate determined for all mandatory respondents." Id. at 6,164 ; see also supra , note 2.

On February 20, 2018, Romp and Hor Liang filed ministerial error comments regarding Commerce's calculation of the all-others rate. See Romp/HR Liang's Rejected Req. to Correct Clerical Error (Feb. 20, 2018), PR 196, PJA Tab 49. On February 27, 2018, Commerce rejected Romp and Hor Liang's ministerial error allegation. Rejection of Submission (Feb. 27, 2018), PR 209, PJA Tab 54. Commerce explained that it had not made a ministerial error as that term is defined by statute and regulation, and, "[b]ased upon [its] analysis of the comments received, [ ] will not amend [Romp's and Hor Liang's] margins." Id. The following day, Commerce removed the ministerial error allegation from the administrative record. Rejection of Submissions (Feb. 28, 2018), PR 207, PJA Tab 52. On March 15, 2018, Commerce denied...