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

• Citation: 532 F.Supp.3d 1281
• Decision Date: 30 July 2021
• Docket Number: Consol. Court No. 18-00027,Slip Op. 21-93
• 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

532 F.Supp.3d 1281

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. 21-93

Consol. Court No. 18-00027

United States Court of International Trade.

July 30, 2021

Ned H. Marshak, Max F. Shutzman, and Andrew T. Schutz, 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, Senior 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 Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Jared Cynamon, 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 PLLC, of Washington, DC, for Defendant-Intervenor Mid Continent Steel & Wire, Inc.

OPINION AND ORDER

Barnett, Chief Judge:

This action is before the court on the U.S. Department of Commerce's ("Commerce" or "the agency") second remand results in the first administrative review of the antidumping duty order on certain steel nails from Taiwan. See Confidential Final Results of [Second] Redetermination Pursuant to Court Remand ("Second Remand Results"), ECF No. 99-1; see generally 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 The court has issued two opinions resolving substantive issues in this case; familiarity with those opinions is presumed. See Pro-Team Coil Nail Enter. v. United States ("Pro-Team II "), 44 CIT ––––, 483 F. Supp. 3d 1242 (2020) ; Pro-Team Coil Nail Enter. v. United States ("Pro-Team I "), 43 CIT ––––, 419 F. Supp. 3d 1319 (2019).

For the Final Results , Commerce determined all the mandatory respondents’ rates using total adverse facts available (or "total AFA") and selected the highest dumping margin alleged in the petition, 78.17 percent, as AFA. See Pro-Team I , 419 F. Supp. 3d at 1325. In Pro-Team I , the court addressed five sets of plaintiffs’ challenges to the Final Results .² The court remanded the Final Results with respect to Commerce's reliance on total facts available (neutral or adverse) for Pro-Team. See id. at 1334. The court sustained Commerce's reliance on total facts otherwise available for Unicatch but remanded the agency's use of an adverse inference. See id. at 1340.

In the first remand redetermination, Commerce calculated a company-specific dumping margin of zero percent for Pro-Team. See Final Results of [First] Redetermination Pursuant to Court Remand ("First Remand Results") at 6–8, 32, ECF No. 71-1. Commerce continued to rely on total AFA to determine Unicatch's margin and provided additional explanation supporting that decision. See id. at 8–15, 20–28. Commerce established a rate of 39.09 percent for the non-individually examined respondents (e.g., Hor Liang) using a simple average of Pro-Team's zero percent margin and Unicatch's 78.17 percent margin. Id. at 15–16, 29–32.

In Pro-Team II , the court sustained Commerce's calculation of Pro-Team's rate and the agency's reliance on total AFA for Unicatch. 483 F. Supp. 3d at 1245. The court, however, remanded Commerce's reliance on the petition rate as AFA because Commerce did not adequately corroborate the rate. See id. at 1251.

In the Second Remand Results, Commerce corroborated the petition rate using certain of Pro-Team's transaction-specific margins in this review and what Commerce referred to as a "component approach." Second Remand Results at 7–9. Commerce established a rate of 52.11 percent for Hor Liang by taking a simple average of the three³ mandatory respondents’ rates. See id. at 12–13.

Unicatch submitted comments contending that Commerce did not adequately corroborate the petition rate and failed to consider the totality of the circumstances in selecting the petition rate as AFA. See Confidential Consol. Pls., [Unicatch] Cmts. on Redetermination ("Unicatch's Cmts.") at 8–14, ECF No. 107. Hor Liang submitted comments contending that Commerce's calculation of the rate for non-individually examined respondents was not reasonably reflective of Hor Liang's potential dumping margin and was otherwise unsupported by substantial evidence or not in accordance with the law. See Confidential Consol. Pls. [Hor Liang] Cmts. on Redetermination ("Hor Liang's Cmts.") at 4–14, ECF No. 105.⁴ Defendant United States ("the Government") and Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent") each submitted comments urging the court to sustain Commerce's Second Remand Results in their entirety. See Confidential Def.’s Resp. to the Parties’ Cmts. on the Dep't of Commerce's Final Results of Redetermination ("Gov't’s Cmts."), ECF No. 115; Confidential Def.-Int. [Mid Continent's] Cmts. in Supp. of Final Remand Results ("Mid Continent's Cmts."), ECF No. 113.

For the following reasons, the court sustains Commerce's selection of the petition rate as AFA for Unicatch and remands Commerce's use of a simple average of the mandatory respondents’ rates to establish the rate for non-individually examined respondents for further explanation or reconsideration.

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 Selection and Corroboration of the Petition Rate for Unicatch

A. Background

For the Final Results , the agency relied on total AFA for Unicatch and, for that purpose, selected the petition rate of 78.17 percent. See Pro-Team I , 419 F. Supp. 3d at 1325, 1335–36. In Pro-Team I , the court sustained Commerce's reliance on total facts otherwise available for Unicatch but remanded Commerce's use of an adverse inference. Id. at 1340. Commerce continued to rely on total AFA for Unicatch and to use the petition rate as AFA. See First Remand Results at 15. Commerce relied on "information provided in the petition and corresponding discussion in the notice [of initiation of the administrative review]" to corroborate the petition rate. Pro-Team II , 483 F. Supp. 3d at 1250 (citing I&D Mem. at 21–22 & nn.86–87).

In Pro-Team II , while the court sustained Commerce's use of an adverse inference, the court remanded Commerce's reliance on the petition rate for reconsideration or further explanation. See id. at 1249–1251. The court explained that "Commerce's determination that the petition rate is reliable and relevant for purposes of this administrative review, based on nothing more than its pre-initiation review of the data, is unsupported by substantial evidence and reasoned explanation." Id. at 1251.

For the Second Remand Results, Commerce continued to rely on the petition rate as AFA. See Second Remand Results at 10. To corroborate the margin, Commerce compared the rate to certain of Pro-Team's transaction-specific dumping margins calculated in this review. See id. at 8. Commerce found that a sufficient number of transaction-specific margins exceeded the petition rate for purposes of corroboration. Id. ; see also SAS Worksheet, ECF p. 145 (identifying the transaction specific margins); Respondents’ 2R Case Br. at 7 (same).

Commerce rejected Respondents’ contention that Commerce relied on too few transaction-specific dumping margins to corroborate the petition rate and that the transactions relied on accounted for too small a portion of Pro-Team's transactions. See Second Remand Results at 16–17. Commerce also rejected Respondents’ assertion that the transaction-specific margins were aberrational and, thus, unreliable for purposes of corroboration. See id. at 17–18. Commerce found that "nothing on the record indicates that the[ corroborating] transactions were unique in some way or were conducted outside of the ordinary course of business." Id. at 18.

Commerce determined that the 78.17 percent petition rate was not punitive considering Unicatch's non-cooperative conduct and was necessary to deter such conduct in the future. See id. at 10, 19. Citing the Final Results , "Commerce explained why it could not use a gap-filling alternative adjustment because this would only raise more questions regarding the proper inclusion or exclusion of costs." Id. at 10 & n.35 (citation omitted). Commerce further reasoned that Unicatch's conduct had delayed the proceedings, thereby allowing Unicatch to attempt to manipulate the amount of time Commerce and interested parties had to address issues raised by the response. See id. at 18–19.

B. Legal Framework

When using an adverse inference to select from among the facts otherwise available, Commerce may rely "on...