Rebar Trade Action Coal. v. United States

• Decision Date: 01 August 2019
• Docket Number: Court No. 17-00184,Slip Op. 19-100
• Parties: REBAR TRADE ACTION COALITION, Plaintiff, v. UNITED STATES, Defendant, and Grupo Simec et al., Defendant-Intervenors.
• Court: U.S. Court of International Trade

398 F.Supp.3d 1359

REBAR TRADE ACTION COALITION, Plaintiff,

v.UNITED STATES, Defendant,andGrupo Simec et al., Defendant-Intervenors.

Slip Op. 19-100

Court No. 17-00184

United States Court of International Trade.

August 1, 2019

Alan Hayden Price, John R. Shane, and Maureen Elizabeth Thorson, Wiley Rein, LLP, of Washington, DC, for plaintiff, Rebar Trade Action Coalition.

Margaret Joy Jantzen, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were L. Misha Preheim, Assistant Director, Jeanne E. Davidson, Director, and Joseph A. Hunt, Assistant Attorney General. Of Counsel on the brief was Ian Andrew McInerney, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Rosa S. Jeong and Irwin P. Altschuler, Greenberg Traurig, LLP, of Washington, DC, for defendant-intervenors, Grupo Simec; Orge S.A. de C.V.; Compania Siderurgica del Pacifico S.A. de C.V.; Grupo Chant S.A.P.I. de C.V.; RRLC S.A.P.I. de C.V.; Siderurgica del Occidente y Pacifico S.A. de C.V.; Simec International 6 S.A. de C.V.; Simec International 7 S.A. de C.V.; and Simec International 9 S.A. de C.V.

OPINION

Kelly, Judge:

Before the court is the U.S. Department of Commerce's ("Commerce") remand redetermination filed pursuant to the court's order in Rebar Trade Action Coalition v. United States, 42 CIT ––––, ––––, 337 F. Supp. 3d 1251, 1265 (2018) ("Rebar"). See Final Results of Redetermination Pursuant [Rebar ] Ct. Remand, Apr. 8, 2019, ECF No. 75-1 ("Remand Results").

In Rebar, the court addressed Plaintiff, Rebar Trade Action Coalition's ("RTAC" or "Plaintiff") challenges to Commerce's final determination in the first administrative review of the antidumping duty ("ADD") order covering steel concrete reinforcing bar ("rebar") from Mexico. See Rebar, 42 CIT at ––––, 337 F. Supp. 3d at 1255–65 ; see also Mem. Pl. [RTAC] Supp. Rule 56.2 Mot. J. Agency R. at 9–38, Dec. 14, 2017, ECF No. 27; Steel Concrete Reinforcing Bar From Mexico, 82 Fed. Reg. 27,233 (Dep't Commerce June 14, 2017) (final results of [ADD] admin. review; 2014–2015) ("Final Results") and accompanying Decision Mem. for the Final Results of [ADD] Admin. Review: Steel Concrete Reinforcing Bar from Mexico; 2014–2015, A-201-844, (June 7, 2017), ECF No. 19-5 ("Final Decision Memo"); Steel Concrete Reinforcing Bar From Mexico, 79 Fed. Reg. 65,925 (Dep't Commerce Nov. 6, 2014) ( [ADD] order). The court remanded for further explanation or reconsideration Commerce's (i) decision not to collapse six affiliates of Grupo Simec S.A.B. de C.V. and Orge S.A. de C.V.'s ("Simec"), the parent company, that owned fixed assets, but did not produce rebar ("non-collapsed group" or "non-collapsed companies"), Rebar, 42 CIT at ––––, 337 F. Supp. 3d at 1255–59, 1265 ; (ii) reliance on the cost experiences of the collapsed fixed asset owners to value the non-collapsed companies' fixed assets, id. at ––––, 337 F. Supp. 3d at 1259–62, 1265 ; and (iii) decision not to apply total or partial facts available with an adverse inference to respondent.¹ See id. at ––––, 337 F. Supp. 3d at 1262–65. For the reasons that follow, the court sustains the Remand Results.

BACKGROUND

The court assumes familiarity with the facts of this case as discussed in the prior opinion, Rebar, 42 CIT at ––––, 337 F. Supp. 3d at 1255, and here restates the facts relevant to the court's review of the Remand Results. The first administrative review of the subject merchandise covered the period of April 24, 2014, through October 31, 2015, and reviewed respondents Deacero S.A.P.I de C.V. and Simec. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 736, 737 (Dep't Commerce Jan. 7, 2016).

Pertinent here, in its final determination, Commerce collapsed Grupo Simec S.A.B. de C.V., Orge S.A. de C.V., Compania Siderurgica del Pacifico S.A. de C.V., Grupo Chant S.A.P.I. de C.V., RRLC S.A.P.I. de C.V., Siderurgica del Occidente y Pacifico S.A. de C.V., Simec International 6 S.A. de C.V., Simec International 7 S.A. de C.V., and Simec International 9 S.A. de C.V. ("Grupo Simec" or the "collapsed group"), and determined that the companies should be treated as a single entity because record evidence showed that there was a significant potential for manipulation of price or production. See Final Decision Memo at 31–32; Final Results, 82 Fed. Reg. at 27,234 n.10 ; see also Steel Concrete Reinforcing Bar From Mexico, 81 Fed. Reg. 89,053, 89,053 n.5 (Dep't Commerce Dec. 9, 2016) (prelim. results [ADD] admin. review; 2014–2015) ("Prelim. Results") and accompanying Decision Mem. Prelim. Results of [ADD] Admin. Review: Steel Concrete Reinforcing Bar from Mexico; 2014–2015 at 3–4, A-201-844, PD 127, bar code 3527282-01 (Dec. 5, 2016).² Commerce rejected RTAC's argument that the non-collapsed companies should also have been collapsed because all owned fixed assets, i.e., the facilities and production equipment used to produce rebar, and leased those fixed assets to the collapsed companies. See Final Decision Memo at 31–32; see also [Commerce's] Final Results Sales & Cost Analysis Mem. at 2, CD 237, bar code 3579897-01 (June 7, 2017) ("Final Calc. Memo"). For the Final Results, Commerce continued to calculate a weighted-average dumping margin of 0.56% for Deacero S.A.P.I. de C.V. and 0.00% for Grupo Simec S.A.B. de C.V., as it had done in its preliminary determination. See Final Results, 82 Fed. Reg. at 27,234 ; Prelim. Results, 81 Fed. Reg. at 89,053.

In Rebar, the court remanded for further explanation or reconsideration Commerce's (i) decision not to collapse six fixed asset owning companies affiliated with Simec, (ii) application of the transactions disregarded and major input rules, (iii) decision not to apply total facts available to calculate Simec's dumping margin, or facts otherwise available to Simec's cost reporting, and (iv) decision not to apply adverse inferences to calculate Simec's dumping margin. Rebar, 42 CIT at ––––, 337 F. Supp. 3d at 1265.

Commerce filed the Remand Results on April 8, 2019. On remand, Commerce reopened the record and collected further information on the management, business operations, and ownership of the companies in the non-collapsed group and determined that record evidence did not demonstrate a significant potential for manipulation that would warrant collapsing under 19 C.F.R. § 351.401(f)(2) (2016).³ Remand Results at 7–12. Regarding the application of the transactions disregarded rule, Commerce conceded that "it may not be reasonable to assume" that experiences of the non-collapsed fixed asset holders mirrored those of the collapsed fixed asset holders and revised its methodology. Id. at 16. Commerce explains it was able to derive company-specific general and administrative expenses ("G&A") for all the non-collapsed companies relying either solely on Grupo Simec's audited consolidated financial statements and underlying consolidated worksheets, or on a combination of the consolidated financial statements and information solicited during the remand proceedings. See id. at 16–18. Finally, Commerce reasoned that it did not need to rely on facts available or adverse inferences because it had all the information it needed to conduct the collapsing analysis and was no longer estimating the non-collapsed companies' costs. Id. at 18.

In its reply to comments on remand, Defendant, for the first time, challenged RTAC's standing to bring this action. Def.'s Resp. Comments on [Remand Results ] at 11–12, July 1, 2019, ECF No. 90 ("Def.'s Resp. Comments"); see also U.S. Const. art. III, § 2, cl. 1. The court requested supplemental briefing to provide all parties with the opportunity to be heard on the issue. Ct.'s Letter at 2, June 11, 2019, ECF No. 86. All parties complied with the court's request. See generally [RTAC's] Suppl. Br., June 18, 2019, ECF No. 87 ("RTAC's Suppl. Br."); Def.'s Resp. [RTAC's] Suppl. Br., July 1, 2019, ECF No. 91 ("Def.'s Suppl. Resp. Br."); Def.-Intervenors' Resp. Pl.'s Suppl. Br., June 24, 2019, ECF No. 88 ("Def.-Intervenors' Suppl. Resp. Br.").

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) (2012)⁴ 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

I. Standing

The Court has "exclusive jurisdiction" over claims commenced under 19 U.S.C. § 1516a. 28 U.S.C. § 1581(c) (2012). The party seeking the Court's jurisdiction has the burden of establishing that jurisdiction exists. See Norsk Hydro Can., Inc. v. United States, 472 F.3d 1347, 1355 (Fed. Cir. 2006) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) ). The Constitution constrains the federal courts' jurisdiction to cases which involve "actual cases or controversies." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) ("No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies."); see U.S. Const. art. III, § 2, cl. 1. "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To...