Pro-Team Coil Nail Enter., Inc. v. United States

• Decision Date: 16 November 2020
• Docket Number: Consol. Court No. 18-00027,Slip Op. 20-163
• Citation: 483 F.Supp.3d 1242
• Parties: PRO-TEAM COIL NAIL ENTERPRISE, INC. and PT Enterprise Inc., 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

483 F.Supp.3d 1242

PRO-TEAM COIL NAIL ENTERPRISE, INC. and PT Enterprise Inc., Plaintiffs,

Unicatch Industrial Co., Ltd., et al., Consolidated Plaintiffs,

and

S.T.O. Industries, Inc., Plaintiff-Intervenor,

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

Slip Op. 20-163

Consol. Court No. 18-00027

United States Court of International Trade.

November 16, 2020

Ned H. Marshak, Max F. Shutzman, Andrew T. Schutz, Dharmendra Choudhary, and Eve Q. Wang, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, 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.

Ronald M. Wisla, 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, for Defendant United States. With her on the brief were Ethan P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Vania Wang, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Adam H. Gordon and Ping Gong, The Bristol Group LLC, of Washington, DC, for Defendant-Intervenor Mid Continent Steel & Wire, Inc.

OPINION AND ORDER

Barnett, Judge:

In this consolidated action, five sets of plaintiffs¹ each challenged aspects of 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. The matter is before the court following Commerce's first redetermination upon remand, see Final Results of Redetermination Pursuant to Court Remand ("Remand Results"), ECF No. 71-1,² issued in response to the court's resolution of five motions for judgment on the agency record pursuant to U.S. Court of International Trade ("CIT") Rule 56.2, see Pro-Team Coil Nail Enter. v. United States , 43 CIT ––––, 419 F. Supp. 3d 1319 (2019). The court remanded Commerce's use of total facts otherwise available with respect to Pro-Team, id. at 1330–34, ; sustained Commerce's use of total neutral facts otherwise available with respect to Unicatch but remanded Commerce's use of an adverse inference when selecting from among the facts otherwise available (referred to as "adverse facts available" or "AFA"), id. at 1336–40 ; declined to reach Hor Liang's first claim seeking a recalculation of the rate assigned to non-examined respondents on remand given the absence of a live dispute, id. at 1340 ; and declined to resolve Hor Liang's second claim regarding Commerce's summary denial of their ministerial error allegation on mootness grounds, id.

On remand, Commerce reconsidered its use of total facts otherwise available with respect to Pro-Team and, instead, used Pro-Team's reported data and calculated a company-specific dumping margin of zero percent. Remand Results at 6–8, 32. With respect to Unicatch, Commerce provided additional explanation supporting its use of total AFA to determine Unicatch's dumping margin and continued to select the 78.17 percent dumping margin alleged in the petition as the AFA rate. Id. at 8–15, 20–28, 32. For the all-others rate applicable to the non-examined respondents, such as Hor Liang, Commerce calculated the simple average of Pro-Team's zero percent margin and Unicatch's 78.17 percent margin to assign these respondents a rate of 39.09 percent. Id. at 15–16, 28–32.

Unicatch submitted comments opposing Commerce's use of total AFA and its selection of the petition rate. Confidential Consol. Pls., [Unicatch] Cmts. on Redetermination ("Unicatch's Opp'n Cmts"), ECF No. 84.³ Hor Liang submitted comments opposing Commerce's method of calculating the all-others rate. Confidential Consol. Pls., [Hor Liang] Cmts. on Redetermination ("Hor Liang's Opp'n Cmts."), ECF No. 77.

Pro-Team submitted comments supporting the Remand Results with respect to its zero percent rate. [Pro-Team's] Cmts. Sup[p]orting Remand, ECF No. 86. Defendant United States ("the Government") and Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent") urge the court to sustain the Remand Results in their entirety. Def.'s Resp. to the Parties' Cmts. Upon [Commerce's] Remand Redetermination ("Gov't's Reply Cmts."), ECF No. 87; Def.-Int. [Mid Continent's] Cmts. in Supp. of Final Remand Results, ECF No. 88.

For the following reasons, the court sustains Commerce's redetermination with respect to Pro-Team⁴ and use of AFA with respect to Unicatch. However, the court remands Commerce's selection of the petition rate as AFA because Commerce did not adequately corroborate that rate. Accordingly, the court defers resolution of Hor Liang's arguments regarding the all-others rate.

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018),⁵ and 28 U.S.C. § 1581(c).

The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 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." SolarWorld Ams., Inc. v. United States , 41 CIT ––––, ––––, 273 F. Supp. 3d 1314, 1317 (2017) (quoting Xinjiamei Furniture (Zhangzhou) Co. v. United States , 38 CIT ––––, ––––, 968 F. Supp. 2d 1255, 1259 (2014) ).

DISCUSSION

I. Commerce's Use of Total AFA for Unicatch and Selection of Unicatch's AFA Rate

A. Relevant Background

The court presumes familiarity with the facts and procedural history set forth in Pro-Team and summarizes below the relevant facts.

In the underlying administrative review, Commerce selected Unicatch as a mandatory respondent. Remand Results at 4. Commerce issued Unicatch a section D questionnaire that contained detailed instructions for preparing a complete cost reconciliation. Pro-Team , 419 F. Supp. 3d at 1334 ; see also Remand Results at 4. Upon examining Unicatch's section D cost response, Commerce issued a supplemental questionnaire instructing Unicatch to "revise its cost reconciliation to reconcile the sales from Unicatch's audited financial statements to the extended total cost of manufacturing in Unicatch's submitted cost database." Remand Results at 4. In response, Unicatch explained "that its initial worksheet reconciled the cost of sales to Unicatch's cost of production for both subject and non-subject merchandise." Id. at 4–5 & n.20 (citation omitted). Commerce issued a second supplemental questionnaire repeating its request for a revised cost reconciliation and further requesting explanations and documentary support for each reconciling item. Id. at 5 & n.21 (citation omitted). Unicatch submitted a revised cost reconciliation "that ended with the cost of production for subject and non-subject merchandise." Id. at 5 & n.22 (citation omitted). In its administrative rebuttal brief, Unicatch explained how Commerce could use record information to complete the reconciliation. Pro-Team , 419 F. Supp. 3d at 1335.

"For the Final Results , Commerce disregarded Unicatch's submitted data and determined a dumping margin based on total AFA." Id. at 1335–36. Pro-Team remanded that determination. Id. at 1340. The court explained that "Commerce based its decision to use an adverse inference on Unicatch's failure to submit a complete cost reconciliation" but otherwise failed to either address "evidence demonstrating Unicatch's attempts to comply with Commerce's supplemental questionnaire[s] or apprise the court of its reasons for nevertheless finding less than full cooperation." Id. at 1339.

In the redetermination, Commerce continued to find that Unicatch failed to "cooperate to the best of its ability and that it potentially benefitted from its lack of cooperation." Remand Results at 8. Commerce stated that the agency issued "multiple requests" that "contain[ed] clear instructions on what information was necessary." Id. at 11; see also id. at 24–25. Commerce explained that it reasonably "expect[ed] more forthcoming responses" from Unicatch, id. at 11, but Unicatch "simply did not put forth the effort or cooperation to respond fully to Commerce's requests for a complete cost reconciliation," id. at 12. Further supporting its determination, Commerce explained, was Unicatch's provision of instructions for completing the reconciliation, which demonstrated that Unicatch "understood how to provide the requested information" but "chose not to do so." Id. Even then, Commerce found, Unicatch's instructions "failed to directly link to the antidumping cost database" and Commerce confronted "significant discrepancies" when it attempted to complete the reconciliation. Id. Commerce further found that Unicatch's failure to provide a cost reconciliation "would benefit Unicatch" because it precluded Commerce from conducting a below cost sales analysis or asking follow-up questions, thus inhibiting the agency's ability to make a proper determination whether dumping has occurred. Id. at 14. Commerce also found that Unicatch's failure to provide the complete reconciliation allowed Unicatch to "control[ ] the pace and schedule for Commerce's work." Id. at 22.

With respect to the AFA rate assigned to Unicatch, Commerce explained that its "practice is to select, as an AFA rate, the higher of: (1) the highest dumping...