Unicatch Indus. Co. v. United States
| Decision Date | 14 September 2021 |
| Docket Number | Slip Op. 21-117,Consol. Court No. 20-00079 |
| Citation | 539 F.Supp.3d 1229 |
| Parties | UNICATCH INDUSTRIAL CO., LTD. and TC International, Inc., Plaintiff, PrimeSource Building Products, Inc., Plaintiff-Intervenor, and Romp Coil Nails Industries Inc., Consolidated-Plaintiff, v. UNITED STATES, Defendant, and Mid Continent Steel & Wire, Inc., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Ned H. Marshak, Max F. Schutzman, Dharmendra N. Choudhary, Andrew T. Schutz, and Eve Q. Wang, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, NY, for Plaintiffs Unicatch Industrial Co., Ltd. and TC International, Inc. Kelly A. Slater, Edmund W. Sim, and Jay Y. Nee, Appleton Luff Pte Ltd., of Washington, DC, for Consolidated Plaintiff Romp Coil Nails Industries Inc.
Jeffrey S. Grimson, Jill A. Cramer, Bryan P. Cenko, Mowry & Grimson, PLLC, of Washington, DC, for Plaintiff-Intervenor PrimeSource Building Products, Inc.
Sosun Bae, Senior Trial Counsel, 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 Vania Wang, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Adam H. Gordon, Jennifer M. Smith, Ping Gong, and Lauren Fraid, The Bristol Group PLLC, of Washington, DC, for Defendant-Intervenor Mid Continent Steel & Wire, Inc.
This consolidated action is before the court on three 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") third administrative review ("AR3") of the antidumping duty order on certain steel nails from Taiwan. See Certain Steel Nails from Taiwan , 85 Fed. Reg. 14,635 (Dep't Commerce Mar. 13, 2020) (final results of antidumping duty admin. review; 2017-2018) (" Final Results "), ECF No. 29-4, and accompanying Issues and Decision Mem., A-583-854 (Mar. 9, 2020) ("I&D Mem."), ECF No. 29-5;1 see also Confidential Pls.’ Mot. for J. on the Agency R., ECF No. 37; Rule 56.2 Mot. for J. Upon the Agency R. on Behalf of Consol. Pl. Romp Coil Nails Indus. Inc., ECF No. 35; Rule 56.2 Mot. for J. on the Agency R. of Pl.-Int. PrimeSource Building Prods., Inc., ECF No. 41.
With respect to the Rule 56.2 motions, Plaintiff Unicatch Industrial Co., Ltd. ("Unicatch"), a Taiwanese producer of subject steel nails and mandatory respondent in the review, challenges Commerce's decision to calculate normal value based on home market sales prices; Commerce's exclusion of antidumping duty deposits ("ADD deposits") from the freight revenue cap; and Commerce's disregard of certain transactions involving an affiliated supplier and corresponding adjustment to Unicatch's total cost of manufacturing ("TOTCOM"). Mem. of Law in Supp. of Pls.’ Mot. for J. on the Agency R. ( ) at 7–34, ECF No. 37; see also Confidential Pls.’ Reply to Def. and Def.-Ints. Resp. to Pls.’ Mot. for J. on the Agency R. ( ), ECF No. 46.2 Consolidated Plaintiff Romp Coil Nails Industries Inc. ("Romp"), a Taiwanese producer and exporter of subject merchandise that received the "all-others" rate, challenges Commerce's reliance on Unicatch's above-cost home market sales to calculate constructed value profit ("CV profit"). Mem. in Supp. of Consol. Pl. Romp Coil Nails Indus. Inc. Rule 56.2 Mot. for J. Upon the Agency R. ("Consol. Pl.’s Mem.") at 4–6, ECF No. 36; see also Letter to the Ct. (May 7, 2021), ECF No. 45 (). Plaintiff-Intervenor PrimeSource Building Products, Inc. ("PrimeSource")3 adopts by incorporation Unicatch's and Romp's respective arguments. Mem. of P&A in Supp. of Rule 56.2 Mot. for J. on the Agency R. of Pl.-Int. PrimeSource Building Prods., Inc. at 5–6, ECF No. 41-1; Reply Br. of Pl.-Int. [PrimeSource] in Supp. of Rule 56.2 Mot. for J. on the Agency R. at 2–3, ECF No. 48.
Defendant United States ("the Government") and Defendant-Intervenor Mid Continent Steel & Wire, Inc. ("Mid Continent"), the petitioner in the underlying proceeding, urge the court to sustain the Final Results . Def.’s Resp. to Pls.’ and Consol. Pl.’s Mots. for J. Upon the Agency R. ("Def.’s Resp."), ECF No. 43; Def.-Int. Mid Continent Steel & Wire, Inc.’s Resp. Br. ("Def.-Int.’s Resp."), ECF No. 44.
Also pending are Romp's motion for a preliminary injunction filed in the member case,4 see Partial Consent Mot. for Prelim. Inj. to Enjoin the Liquidation of Certain Entries ( ), ECF No. 11 (Ct. No. 20-80), and the Government's motion to dismiss count two of Romp's complaint, see Def.’s Resp. in Partial Opp'n to Pl.’s Mot. for Prelim. Inj. and Partial Mot. to Dismiss ("Def.’s Mot. Dismiss"), ECF No. 22 (Ct. No. 20-80). Romp seeks to enjoin liquidation "pending a final and conclusive court decision in the appeal of [Commerce's] original antidumping duty investigation of certain steel nails from Taiwan." Consol. Pl.’s Mot. Prelim. Inj. at 1 (citing Mid Continent Steel & Wire, Inc. v. United States , Court No. 15-cv-00213 (CIT) ("Mid Continent Litigation ")). The Government consented to an injunction pending a final and conclusive decision in the instant action and otherwise opposed the requested duration. Id. ; see also Def.’s Mot. Dismiss. at 1–2, 5–9. The Government requests the court to dismiss count two of Romp's complaint for failure to state a claim upon which relief may be granted pursuant to CIT Rule 12(b)(6) in the event the court denies Romp's request for preliminary relief. Id. at 10.
For the reasons discussed herein, the court sustains the Final Results , denies Romp's request for preliminary relief coextensive with the Mid Continent Litigation , and dismisses count two of Romp's complaint.
On May 20, 2015, Commerce published its final determination in an antidumping duty investigation of certain steel nails from Taiwan. See Certain Steel Nails From Taiwan , 80 Fed. Reg. 28,959 (Dep't Commerce May 20, 2015) (final determination of sales at less than fair value). On July 13, 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, 39,995 –96 (Dep't Commerce July 13, 2015) (antidumping duty orders) ("ADD Order ").
Mid Continent and several Taiwanese plaintiffs—not including Romp—commenced actions challenging Commerce's final affirmative determination. See generally Mid Continent Steel & Wire, Inc. v. United States , 44 CIT ––––, ––––, 427 F. Supp. 3d 1375, 1379–80 (2020) ().
In September 2018, Commerce initiated AR3. Initiation of Antidumping and Countervailing Duty Admin. Reviews , 83 Fed. Reg. 45,596 (Dep't Commerce Sept. 10, 2018). The period of review ("POR") was July 1, 2017, to June 30, 2018. Id. at 45,600. Commerce selected Liang Chyuan Industrial Co. Ltd. ("Liang Chyuan"), PT Enterprise Inc. and its affiliated producer Pro-Team Coil Nail Enterprise Inc. (together, "PT"), and Unicatch as mandatory respondents in the review. Respondent Selection Mem. (Nov. 7, 2018), CR 5, PR 31, CJA Tab 3.
On September 12, 2019, Commerce published its preliminary results. Certain Steel Nails From Taiwan , 84 Fed. Reg. 48,116 (Dep't Commerce Sept. 12, 2019) (prelim. results of antidumping duty admin. review; 2017-2018) ("Prelim. Results "), and accompanying Decision Mem. for Prelim. Results of Antidumping Duty Admin. Review (Sept. 5, 2019) ( ), PR 189, CJA Tab 9.
Commerce issued the Final Results on March 13, 2020. For the Final Results , Commerce calculated company-specific dumping margins for Liang Chyuan, PT, and Unicatch in the amounts of 2.54 percent, 6.72 percent, and 27.69 percent, respectively. 85 Fed. Reg. at 14,636. Commerce also established an all-others rate of 12.90 percent. Id. at 14,636 & n.10. This appeal followed.
On May 13, 2020, Romp filed its partial consent motion for a preliminary injunction to enjoin the liquidation of its entries subject to the administrative review. Consol. Pl.’s Mot. Prelim. Inj. On June 3, 2020, the Government opposed the motion in part and further moved to dismiss count two of Romp's complaint. Def.’s Mot. Dismiss at 10; see also Compl. ¶ 14, ECF No. 10 (Ct. No. 20-80) (). On June 5, 2020, the court held a telephone conference during which the court indicated that it would entertain a consent motion for a statutory injunction consistent with the Government's partial consent to Romp's request and later convert Romp's motion to a motion to amend the statutory injunction. See Docket Entry, ECF No. 23. Later that day, the court granted Romp's consent request for a statutory injunction enjoining the liquidation of Romp's entries pending a final and conclusive decision in this case. Order for Statutory Inj. Upon Consent (June 5, 2020) ("Statutory Inj."), ECF No. 26 (Ct. No. 20-80).
On July 9, 2020, Romp filed a reply in support of its motion for a preliminary injunction and opposition to the Government's partial motion to dismiss. See Mot. for Leave to File Out of Time Pl.’s [Resp.] to Def.’s Partial Mot. to Dismiss and Reply to Def.’s Mot. to Dismiss ("Consol. Pl.’s Resp. & Reply"), ECF No. 37 (Ct. No. 20-80).
On July 17, 2020, the court consolidated these actions. See Order (July 17, 2020), ECF No. 33.
On July 24, 2020, the Government filed its reply in support of its partial motion to dismiss. Def.’s Reply in Supp. of ...
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