Hyundai Steel Company v. United States

Slip Op. 21– 47
UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
:
HYUNDAI STEEL CO., 	:
:
Plaintiff, 	:
:
and 	:
:
UNITED STATES STEEL CORP., 	:
:
Consolidated Plaintiff, 	:
:
and 	:
:
NUCOR CORP., 	: 	PUBLIC VERSION
:
Consolidated Plaintiff-Intervenor, 	: 	Before: Richard K. Eaton, Judge
:
v. 	: 	Consol. Court No. 19-00099
:
UNITED STATES, 	:
:
Defendant, 	:
:
and 	:
:
UNITED STATES STEEL CORP., 	:
:
Defendant-Intervenor, 	:
:
and 	:
:
HYUNDAI STEEL CO., 	:
:
Consolidated Defendant-Intervenor. :
__________________________________________:
OPINION and ORDER
[Final Results sustained in part and remanded to Commerce.]
Dated: April 27, 2021
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J. David Park, Arnold & Porter Kaye Scholer LLP, of Washington DC, argued for Plaintiff
and Consolidated Defendant-Intervenor Hyundai Steel Co. With him on the brief were Henry D.
Almond and Daniel R. Wilson.
Elizabeth Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke,
Assistant Director. Of counsel on the brief was Brendan Saslow, Attorney, Office of the Chief
Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington,
DC.
Thomas M. Beline and Sarah E. Shulman, Cassidy Levy Kent (USA) LLP, of Washington
DC, argued for Consolidated Plaintiff and Defendant-Intervenor United States Steel Corporation.
With them on the brief was Jack A. Levy.
Eaton, Judge: Before the court, in this consolidated action,1 are the motions for judgment
on the agency record of Plaintiff and Consolidated Defendant-Intervenor Hyundai Steel Company
(“Hyundai”), and Consolidated Plaintiff and Defendant-Intervenor United States Steel Corporation
(“U.S. Steel”). By their respective motions, Hyundai and U.S. Steel challenge aspects of the final
results of the United States Department of Commerce’s (“Commerce” or the “Department”) first
administrative review of the antidumping duty order (“Order”)2 on cold-rolled steel flat products
from the Republic of Korea (“Korea”). See Certain Cold Rolled Steel Flat Products From the
Republic of Korea, 84 Fed. Reg. 24,083 (Dep’t Commerce May 24, 2019) (“Final Results”) and
accompanying Issues and Decision Mem. (May 17, 2019), P.R. 202 (“Final IDM”). Jurisdiction is
found under 28 U.S.C. § 1581(c) (2018) and 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018).
1 	On August 22, 2019, the court granted the parties’ consent motion to consolidate
United States Steel Corporation v. United States, Court No. 19-00103, under the lead case,
Hyundai Steel Company v. United States, Consol. Court No. 19-00099. See Order dated Aug. 22,
2019, ECF No. 21.
2 	On September 20, 2016, Commerce issued an antidumping duty order on cold-
rolled steel flat products from Korea following its investigation and final affirmative dumping
determination. See Certain Cold-Rolled Steel Flat Products from Brazil, India, the Republic of
Korea, and the United Kingdom, 81 Fed. Reg. 64,432 (Dep’t Commerce Sept. 20, 2016) (amended
antidumping duty order).
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Hyundai, a Korean producer and exporter of subject merchandise, and a mandatory
respondent in the review, contends that Commerce’s use of adverse facts available in the Final
Results cannot be sustained. See Hyundai’s Mem. Supp. Mot. J. Agency R., ECF No. 31-2
(“Hyundai’s Br.”); Hyundai’s Reply Br., ECF No. 42; see also 19 U.S.C. § 1677e(a)-(b). Hyundai
maintains 	that, 	contrary 	to 	Commerce’s 	findings, 	it 	fully 	and 	accurately 	complied 	with
Commerce’s requests for information and, to the extent Commerce found a deficiency in the
company’s reporting (i.e., inconsistencies in reported specification information for U.S. and home
market sales), the agency failed to provide Hyundai with notice of the nature of the deficiency and
an opportunity to remedy it, prior to resorting to facts otherwise available, as required by the
statute.3 See Hyundai’s Br. 16; see also 19 U.S.C. § 1677m(d). Hyundai further maintains that,
even if the use of adverse facts available were justified, Commerce’s use was overbroad and
arbitrary because the agency disregarded sales for which it found no inconsistencies in reported
specification information. See Hyundai’s Br. 1-2. Hyundai thus asks the court to “remand the
agency’s determination with instructions to Commerce to correct its errors.” Hyundai’s Br. 31.
For its part, U.S. Steel, a domestic steel producer, and one of the petitioners below,4
challenges Commerce’s denial of its request to rescind the review with respect to Hyundai’s
3 	Commerce must make two separate findings before it may use adverse facts
available. First, Commerce must find that use of “facts available” is needed because “necessary
information is not available on the record,” or “an interested party or any other person . . . withholds
information that has been requested by [Commerce] . . . [or] significantly impedes a proceeding.”
19 U.S.C. § 1677e(a)(1)-(2)(A), (C). Second, Commerce must find “that an interested party has
failed to cooperate by not acting to the best of its ability to comply with a request for information.”
Id. § 1677e(b)(1). Only at that point may Commerce use an adverse inference “in selecting from
among the facts otherwise available.” Id. § 1677e(b)(1)(A).
4 	The petitioners are domestic steel producers: Consolidated Plaintiff and Defendant-
Intervenor U.S. Steel; Consolidated Plaintiff-Intervenor Nucor Corporation; and non-parties to this
action ArcelorMittal USA LLC; AK Steel Corporation; and Steel Dynamics, Inc.
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affiliated freight company, Company A,5 and the assignment of the all-others rate to Company A,
as contrary to law, because Company A is neither a producer nor an exporter of subject
merchandise. See U.S. Steel’s Mem. Supp. Mot. J. Agency R., ECF No. 29 (“U.S. Steel’s Br.”);
U.S. Steel’s Reply Br., ECF No. 40. In the alternative, U.S. Steel argues that, notwithstanding
Company A being neither a producer nor exporter of subject merchandise, Company A should
have been collapsed with Hyundai, and assigned Hyundai’s adverse facts available rate. Thus, U.S.
Steel asks the court to “remand for Commerce to come into compliance with the antidumping
statute.” U.S. Steel’s Br. 21.
Defendant the United States (“Defendant”), on behalf of Commerce, maintains that the
Final Results are supported by substantial evidence and otherwise in accordance with law. See
Def.’s Resp. Opp’n, ECF No. 36 (“Def.’s Br.”). U.S. Steel, as Defendant-Intervenor, urges the
court to sustain the Final Results with respect to the issues raised in Hyundai’s motion. See Def.-
Int. U.S. Steel’s Resp., ECF No. 35. Hyundai, as Consolidated Defendant-Intervenor, urges the
court to sustain the Final Results with respect to the issues raised in U.S. Steel’s motion. See
Consol. Def.-Int. Hyundai’s Resp., ECF No. 38.
The court finds that Department’s use of facts available, under 19 U.S.C. § 1677e(a)6 based
on Hyundai’s alleged “withholding” of requested information, cannot be sustained because
Commerce failed to comply with its obligation, under 19 U.S.C. § 1677m(d), 7 to notify Hyundai
5 	Company A is [[ 	]], an affiliated freight company. See
Hyundai’s Sec. A Quest. Resp. (Mar. 8, 2018), C.R. 8, at A-12 to A-13.
6 	“If . . . an interested party or any other person . . . withholds information that has
been requested by [Commerce],” Commerce “shall, subject to section 1677m(d) of this title, use
the facts otherwise available in reaching the applicable determination under this subtitle.” 19
U.S.C. § 1677e(a) (emphasis added).
7 	Subsection 1677m(d) provides:
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of the nature of the alleged deficiency(ies) in Hyundai’s questionnaire responses and provide the
company an opportunity to remediate. Thus, on remand, Commerce shall reconsider whether the
use of facts otherwise available is warranted with respect to any of Hyundai’s sales, and adequately
explain 	and 	support 	its 	remand 	redetermination 	with 	substantial 	evidence. 	If 	Commerce
determines that the use of facts otherwise available is warranted, and it makes the additional,
distinct finding that Hyundai failed to cooperate to the best of its ability, it must adequately explain
and support this finding with substantial evidence.
Because the Department found that Company A was neither a producer nor an exporter of
subject merchandise during the period of review, and thus did not meet the requirements of 19
U.S.C. §§ 1673b(d) and 1673d(c)(1) for the determination of an antidumping duty rate, the court
remands for Commerce to rescind the assignment of the all-others rate to Company A.
The court sustains Commerce’s finding that U.S. Steel’s request to rescind the review with
respect to Company A was untimely, and its decision not to collapse Company A.
If [Commerce] . . . determines that a response to a request for information under
this subtitle does not comply with the request, [Commerce] . . . shall promptly
inform the person submitting the response of the nature of the deficiency and shall,
to the extent practicable, provide that person with an opportunity to remedy or
explain the deficiency in light of the time limits established for the completion of
investigations or reviews under this subtitle. If that person submits further
information in response to such deficiency and either—
(1) [Commerce] . . . finds that such response is not satisfactory, or
(2) such response is not submitted within the applicable time limits,
then [Commerce] . . . may, subject to subsection (e), disregard all or part of the
original and subsequent responses.
19 U.S.C. § 1677m(d).
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BACKGROUND
On September 1, 2017, Commerce published notice of an opportunity to request an
administrative review of the Order. See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity To Request Admin. Review, 82 Fed. Reg. 41,595 (Dep’t
Commerce Sept. 1, 2017). Hyundai submitted its request for review on September 29, 2017. See
Hyundai’s Request for Admin. Rev. (Sept. 27, 2017), P.R. 2.
On October 2, 2017, the petitioners, including U.S. Steel, requested review of several
companies, including Hyundai’s affiliate, Company A.8 See Pet’rs’ Request for Admin. Rev. (Oct.
2, 2017), P.R. 4.
On November 13, 2017, Commerce published notice of the initiation of the first
administrative review of the Order. See Initiation of Antidumping and Countervailing Duty Admin.
Revs., 82 Fed. Reg. 52,268 (Dep’t Commerce Nov. 13, 2017). The period of review was March 7,
2016, through August 31, 2017.
On February 14, 2018, the petitioners timely withdrew their request with respect to all of
the companies they had asked Commerce to review, except Company A and POSCO/POSCO
Daewoo Corp. (“POSCO/PDW”), a Korean producer and exporter.9 See Letter from Pet’rs to Sec’y
Wilber Ross, Jr. (Feb. 14, 2018), P.R. 32.
8 	In addition to Company A, the petitioners requested review of Ameri-Source
Korea; Dongbu Steel Co., Ltd.; Dongkuk Steel Mill Co., Ltd.; Dongkuk Industries Co., Ltd.; GS
Global Corp.; Hanawell Co., Ltd.; Hankum Co., Ltd.; Hyuk San Profile Co., Ltd.; Kindus Inc.;
POSCO; Daewoo International Corp. (which is known as POSCO Daewoo Corp.); Samsung C&T
Corp.; Steel N Future; Taihan Electric Wire Co., Ltd.; and Uin Global Co. See Pet’rs’ Request for
Admin. Rev. (Oct. 2, 2017), P.R. 4.
9 	Because of common ownership, among other factors, Commerce treated POSCO
and POSCO Daewoo as a collapsed entity (i.e., POSCO/PDW). See Preliminary Decision Mem.
(Oct. 3, 2018), P.R. 159 at 7-8. POSCO/PDW is not a party to this action.
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Thereafter, 	the 	Department 	selected 	Hyundai 	and 	POSCO/PDW 	as 	mandatory
respondents, stating they were the two largest producers and exporters of subject merchandise by
volume during the period of review.10 Commerce sent its initial and supplemental questionnaires
to each of the mandatory respondents. Both timely filed responses. See Commerce’s Initial Quest.
Secs. A-E (Feb. 8, 2018), P.R. 25 (“Initial Questionnaire”); Commerce’s First Suppl. Quest. Secs.
A-E (June 18, 2018), P.R. 130 (“Supplemental Questionnaire”).
I. 	Commerce’s Initial Questionnaire
A. 	Product Codes
In Sections B (home market sales) and C (U.S. sales) of its Initial Questionnaire,
Commerce asked for information regarding, inter alia, Hyundai’s “product codes” for products
sold in Korea and the United States during the period of review. A product code is the internal
code a company assigns to a product in the ordinary course of its business. See, e.g., Hyundai’s
Sec. B Quest. Resp. (Mar. 30, 2018), P.R. 82-84 at B-8. Product codes were to be reported in the
computer field “PRODCODU/H.” 11 These codes were then to be correlated to a matching control
10 	See Respondent Selection Mem. (Feb. 8, 2018), C.R. 3, P.R. 24 at 5 (“Based on the
[Customs and Border Protection data for entries of cold-rolled steel flat products from Korea
during the period of review], we identified the two publicly identifiable exporters/producers with
the largest volume of subject imports, which are, in alphabetical order: Hyundai and POSCO.”).
[[
]] Respondent Selection
Mem. at 6.
11 	The “U” and “H” at the end of a field name, e.g., “PRODCOD” mean, respectively,
the United States market and the home market (here, Korea).
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number, or CONNUM, 12 that the Department used in the calculation of a dumping margin. Product
codes were not, however, used to construct the CONNUMs themselves.
Commerce’s instructions did not require Hyundai to use any particular method to report its
product codes. Regarding products sold in the home market, the Section B instructions stated:
“Report the commercial product code assigned by your company in the normal course of business
to the specific product sold.” Hyundai’s Sec. B Quest. Resp. at B-8. Similarly, regarding products
sold in the U.S. market, the Section C instructions stated: “Report the commercial product code
assigned by your company in the normal course of business to the specific product sold in the
United States.” Initial Questionnaire at B-38.
For products that were further manufactured in the United States, however, Commerce’s
Section C instructions provided some additional detail. The instructions stated that if, as in
12 	A CONNUM is a number composed of a series of digits each of which corresponds
to a physical characteristic, as defined by Commerce in a questionnaire. For example, here, the
components of a CONNUM include eight digits representing: paint, carbon content, quality, yield
strength, thickness, width, form, and heat treatment, e.g., 40_1_35_1_22_4_1_1. 	Each
CONNUM is assigned to a unique product and is “designed to reflect the ‘hierarchy of certain
characteristics used to sort subject merchandise into groups’ and allow Commerce to match
identical and similar products across markets.” Manchester Tank & Equip. Co. v. United States,
44 CIT __, __ n.3, 483 F. Supp. 3d 1309, 1312 n.3 (2020) (quoting Bohler Bleche GmbH & Co.
KG v. United States, 42 CIT ___, ___, 324 F. Supp. 3d 1344, 1347 (2018)). Commerce has
described how it uses CONNUMs to ensure an apples-to-apples comparison of sales made in the
home market (or “comparison” market) and those made in the U.S. market:
[T]he subject merchandise has different CONNUMs to identify the individual
models of products for matching purposes. . . . The CONNUMs are assigned to
each unique product reported in the sales response. . . . Identical products are
assigned the same CONNUM in both the comparison market sales database and
U.S. sales database. . . . The matching criteria are used to establish the most similar
comparison market product to a given U.S. product.
1 J OSEPH E. PATTISON , ANTIDUMPING & COUNTERVAILING DUTY LAWS 837 (2017).
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Hyundai’s case,13 “the product sold is further manufactured in the United States, report the product
code of the product sold not the product imported.” Initial Questionnaire at B-38 (emphasis added).
In its brief before the court, Hyundai indicates that it interpreted this instruction to mean that
Commerce was asking for “as sold” product codes in the PRODCOD2U sub-field.14 See Hyundai’s
Br. 3-4.
B. 	Specification Data
In addition to product codes, Commerce also asked for “specification” data in Sections B
and C of its Initial Questionnaire. In this case, specification referred to the type or grade of steel
in a product, according to international standards such as those set by ASTM International, a
testing and standards organization (e.g., ASTM A653 designation CS Type A). See, e.g.,
Hyundai’s Sec. B Quest. Resp. at B-11. Commerce’s instructions for reporting specification in
Sections 	B 	and 	C, 	which 	were 	identical, 	asked 	Hyundai 	to 	“[r]eport 	the
specification/designation/type/grade of the product.” See Hyundai’s Sec. B Quest. Resp. at B-11;
Initial Questionnaire at B-39 (same). Specification data was to be reported in the computer field
SPECGRADEU/H.
13 	Hyundai’s U.S. affiliate, Hyundai Steel America, Inc. “is a wholly-owned U.S.
subsidiary of [Hyundai] and is located in Greenville, Alabama. . . . [D]uring the [period of review],
[Hyundai] sold subject merchandise to [Hyundai Steel America], which, in turn, either resold the
subject merchandise in its imported condition, or further processed or consumed the merchandise
in producing non-subject merchandise prior to reselling the resulting products.” Hyundai’s Sec.
A Quest. Resp. at A-12.
14 	Hyundai reported within field 1.0 the “Complete Product Code,” which included
five 	sub-fields: 	Product 	Type 	(PRODCOD1U), 	Specification 	(PRODCOD2U), 	Thickness
(PRODCOD3U), Width (PRODCOD4U), and Form (PRODCOD5U). See Hyundai’s Sec. C
Quest. Resp. (Mar. 30, 2018), C.R. 130-32, P.R. 82-84 at C-10.
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C. 	Hyundai’s Reporting of Specification Data for Its U.S. Sales
In 	its 	Section 	C 	responses, 	Hyundai 	reported 	specification 	data 	not 	only 	in 	the
SPECGRADEU field (found in Section C, field 2.3), but also as a component of its product code,
in the computer sub-field “PRODCOD2U” (found in Section C, field 1.0). Unlike specification
data reported in the SPECGRADEU field, however, which Hyundai reported on an “as produced”
basis, the specification data in the PROCOD2U sub-field was reported on an “as sold” basis. In
other words, in the SPECGRADEU field, Hyundai reported the specification of the product that
was produced in Korea by Hyundai and imported into the United States by Hyundai Steel America.
In the PRODCOD2U sub-field, Hyundai reported the specification of the product that, in some
instances, had been further manufactured by its U.S. affiliate, Hyundai Steel America, and then
sold to unaffiliated U.S. customers.
As a result of this difference in reporting method (“as produced” / “as sold”), in some
instances the specification data reported in the PRODCOD2U sub-field was not identical to
specification data reported in the SPECGRADEU/H and PRODCOD2H fields. 15 In its Section C
responses, Hyundai explained its method, stating that it was relying on Hyundai Steel America’s
U.S. sales (i.e., sales made in the United States) invoices as the basis for the specification data
reported in PROCOD2U, and Hyundai Steel America’s purchasing records for specification data
reported in SPECGRADEU, i.e., records detailing the company’s purchases of product from
15 	In the Final IDM, Commerce does not identify the CONNUMs or individual sales
affected by the alleged deficiency(ies). According to U.S. Steel, however, the specification data
that Hyundai provided in PRODCOD2U/H did not match the specification data reported in
SPECGRADEU/H in 	seven 	of 	eighty-seven 	instances, 	impacting 	individual sales under
ten 	CONNUMs. See U.S. Steel’s Conf. Resp. Opp’n, ECF No. 34, 5; see also U.S. Steel’s
Pre-Preliminary Cmts. Concerning Hyundai (Sept. 10, 2018), C.R. 313, P.R., 151 at 12.
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producer Hyundai.16 See Hyundai’s Sec. C Quest Resp. at C-10 (“[Hyundai] reports the following
[product code] information as reflected in the sales invoice.”); C-13 (noting that it was reporting
SPECGRADEU “based on [Hyundai Steel America]’s purchasing records.”); see also Hyundai’s
Sec. B Quest Resp. at Ex. B-4 (setting out a table listing all of the reported specifications and
grades, along with the matching QUALITYU code). As requested by Commerce, Hyundai also
reconciled specification information for its reported U.S. sales with the total sales listed in its
financial statements:
Specifically, where [Hyundai Steel America]’s sales system record is inconsistent
with the actual specification of the coil in [Hyundai Steel America]’s purchase
records, 	Hyundai 	Steel 	reviewed 	the 	source 	documentation. 	If 	the 	actual
specification of the input coil was Hyundai Steel Korea [cold rolled steel flat
product], Hyundai Steel has added the transactions to the reported sales, and,
conversely, if the actual specification was not Hyundai Steel Korea [cold rolled
steel flat product], Hyundai Steel excluded the transactions from the reported sales.
Hyundai’s Sec. C. Quest Resp. at C-7. In other words, the specification data for products “as
purchased” and “as sold” did not always match because the specification in Hyundai Steel
America’s purchasing records did not always match the specification in its sales invoices, due to,
for example, the further manufacturing of the steel in the United States. Hyundai reconciled its
sales to exclude sales of non-subject merchandise from its reported sales.
It should be noted that, according to Commerce’s instructions, neither “product code” nor
“specification” data was used to construct CONNUMs. Put another way, no part of the string of
16 	According to Hyundai, it provided to Commerce “record evidence to explain the
differing specification fields,” e.g., “Exhibit C-6-B of [its] initial Section C Questionnaire
Response [provided] explanations for the differing specification fields for [[ 	]] [metric tons]
of sales (these instances related to sales where the [SPECGRADEU field] indicated that the
product was subject merchandise, but the ‘as sold’ specification [i.e., reported in PRODCOD2U]
indicated 	the 	product 	was 	not 	subject 	merchandise).” 	Hyundai’s 	Br. 	28-29. 	Hyundai’s
administrative case brief provided a list of the total sales that had differing fields, which amounted
to [[ 	]] metric tons. See Hyundai’s Case Br. (Nov. 20, 2018), C.R. 344, P.R. 180 at 22 &
Attach. 2.
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numbers composing the CONNUM included a digit for the “product code” field or the
“specification” field. But specification data was related to one of the eight physical characteristics
that did compose the CONNUM, i.e., the “quality” element of the CONNUM.17 See, e.g., Initial
Questionnaire at C-1-C-2 (description of QUALITY field identifying, inter alia, ASTM
standards). That is, as Hyundai describes in its brief, “the SPECGRADEU field related to the
specific product produced and exported to the United States, and [Hyundai] therefore used data
from that field to identify the QUALITYU code used to construct CONNUMs that it reported in
the C database.” Hyundai’s Br. 15.
Nonetheless, as will be seen, Commerce found that the differences in reported specification
data in the product code and specification fields prevented the determination of normal value
because, it found that, for some CONNUMs, Commerce could not “match the U.S. sales of these
CONNUMs to the appropriate sales in Hyundai’s home market database.” Final IDM at 13.
II. 	Commerce’s Supplemental Questionnaire
On June 18, 2018, Commerce issued a supplemental questionnaire to Hyundai:
Please ensure that you have accurately reported all product specifications in your
sales and cost reporting, including whether or not the merchandise is prime or non-
prime.[18] Revise your response as necessary.
17 	Here, the CONNUM for the subject steel products was composed of eight elements,
representing the physical characteristics of paint, carbon content, quality, yield strength, thickness,
width, form and heat treatment. See Initial Questionnaire, fields 3.1-.8. For example, one of the
CONNUMs reported by Hyundai was 	40_1_35_1_22_4_1_1, where the third number in the
sequence, 	35, pertained to the physical characteristic “quality.” Commerce’s questionnaire
instructions for reporting quality referred to examples of international industry standards, such as
those published by ASTM International. According to the instructions, 35 means “Commercial
Steel (e.g., ASTM A1008 designation CS Type A).” See Initial Questionnaire at C-1.
18 	“‘[W]hether or not the merchandise is prime or non-prime’ was addressed in field
2.2, ‘PRIMEU,’ and not PRODCOD2 or SPECGRADE.” Hyundai’s Br. 6 (citing Hyundai’s Sec.
C Quest. Resp. at C-12). Apparently, prime merchandise is subject merchandise that is sold in the
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Supplemental Questionnaire at 6 (emphasis added). The questionnaire did not inquire about, or
even mention, Hyundai’s method for reporting product code (PRODCOD2U/H), specification
(SPECGRADEU/H), or any perceived discrepancy in the reported data with respect to those fields.
It simply asked Hyundai to make sure that the reported data was “accurate.”
On July 11, 2018, Hyundai filed its supplemental questionnaire response in which it
confirmed the accuracy of the specification information reported in its responses to the Initial
Questionnaire:
No 	revisions 	are 	required. 	Hyundai 	Steel 	reported 	accurately 	all 	product
specifications in the sales and cost databases, including whether or not the
merchandise is prime or non-prime.
Hyundai’s Suppl. Quest. Resp. (July 18, 2018), P.R. 139, C.R. 208, at 12. No additional
supplemental questionnaire was issued prior to the issuance of Commerce’s preliminary results,
almost three months later.
III. 	Commerce’s Decision to Use Adverse Facts Available
A. 	Preliminary Results
On October 3, 2018, Commerce published the preliminary results of its review. See Certain
Cold Rolled Steel Flat Products From the Republic of Korea, 83 Fed. Reg. 51,661 (Dep’t
Commerce Oct. 12, 2018) (“Preliminary Results”), and accompanying Preliminary Decision Mem.
(Oct. 3, 2018), P.R. 159 (“PDM”). Commerce determined that the use of facts available was
ordinary course of business, while non-prime or secondary merchandise is material that may result
from producing the subject merchandise. See Corus Staal BV v. United States, 27 CIT 388, 403-
04, 259 F. Supp. 2d 1253, 1267-68 (2003) (discussing non-prime sales). There is no dispute over
the reporting of whether the merchandise was prime or non-prime.
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warranted under 19 U.S.C. § 1677e(a) with respect to “those sales for which Hyundai reported
contradictory product specification information.” See PDM at 10. Commerce stated:
[A]fter examining the manner in which Hyundai reported the product specifications
for certain CONNUMs in the United States and home market, we have determined
that Hyundai reported inconsistent product specifications in its home market
database which is otherwise contradicted by information in Hyundai’s U.S. sales
database. After finding discrepancies with the reported information in Hyundai’s
original questionnaire response, in our June 18, 2018 supplemental questionnaire,
we instructed Hyundai to “please ensure that you have accurately reported all
product specifications in your sales and cost reporting, including whether or not the
merchandise is prime or non-prime. Revise your response as necessary.”
However, 	Hyundai 	failed 	to 	address 	this 	deficiency 	by 	reporting 	product
specification information for some CONNUMs where the home market product
specification differed from that of the U.S. product specification. Furthermore,
inconsistencies in Hyundai’s product specifications were raised in the investigation
of this order. We, therefore, find that Hyundai withheld necessary information with
respect 	to 	providing 	accurate 	and 	consistent 	descriptions 	of 	its 	product
specifications for all CONNUMs and, thus, failed to cooperate to the best of its
ability in responding to Commerce’s requests for information. Therefore, we find
that the application of adverse facts available, pursuant to [19 U.S.C. § 1677e(a)-
(b)], is warranted with respect to those CONNUMs for which Hyundai reported
contradictory product specification information with regards to its home market and
U.S. sales.
PDM at 9-10. Thus, Commerce found that Hyundai “[withheld] information that [was] requested
by [Commerce],” 19 U.S.C. § 1677e(a)(2)(A), and “failed to cooperate by not acting to the best of
its ability to comply with a request for information.” Id. § 1677e(b)(1).
Without further analysis, Commerce proceeded to apply adverse facts available when
determining an antidumping duty margin for Hyundai. Accordingly, Commerce stated, “for those
sales for which Hyundai reported contradictory product specification information, as adverse facts
available, we have assigned the highest calculated margin for any other reported sale for Hyundai
to represent the margin on these transactions.” PDM at 10. Commerce determined preliminary
dumping margins for Hyundai and POSCO of 36.59 percent and 2.78 percent, respectively.
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Consol. Court No. 19-00099 	Page 15
Moreover, Commerce determined a preliminary estimated all-others rate19 for the non-examined
companies, including Company A, Hyundai’s affiliated freight company, of 11.68 percent. See
Preliminary Results, 83 Fed. Reg. at 51,662.
After Commerce published the Preliminary Results, the parties submitted administrative
case briefs. In its brief, Hyundai objected to the use of facts available arguing, inter alia, that it
had provided the information Commerce requested and explained the manner in which it had
responded to the agency’s requests for information, in accordance with its instructions. See
Hyundai’s Case Br. (Nov. 20, 2018), P.R. 180 at 2 (“There is no information missing from the
record for purposes of calculating Hyundai Steel’s dumping margin.”).
Hyundai also objected to the use of adverse inferences, arguing it complied to the best of
its ability, volunteering even more information than Commerce asked for. See Hyundai’s Case Br.
at 9, 12-13. Additionally, Hyundai challenged the sufficiency of the Department’s notice of
deficiency under § 1677m(d), and the breadth of the Department’s use of adverse facts available
to all sales under certain CONNUMs, irrespective of whether individual sales under each of those
CONNUMs were impacted by the alleged deficiency. See Hyundai’s Case Br. at 21.
On separate grounds U.S. Steel also questioned the Preliminary Results. In response to the
preliminary estimated all-others rate of 11.68 percent that Commerce determined for the non-
examined companies, including Company A, U.S. Steel asked Commerce, for the first time in its
administrative case brief, to rescind the review with respect to Company A, or in the alternative,
to collapse Company A and Hyundai. See U.S. Steel’s Case Br. (Nov. 20, 2018), C.R., 342, P.R.
19 	The estimated all-others rate is “an amount equal to the weighted average of the
estimated weighted average dumping margins established for exporters and producers individually
investigated, excluding any zero and de minimis margins, and any margins determined entirely
under [19 U.S.C. § 1677e].” See 19 U.S.C. § 1673d(c)(5)(A).
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178 at 2-3. This rescission request was made well after the regulatory deadline, i.e., more than
ninety days after the date on which the notice of initiation of the review was published in the
Federal Register. See 19 C.F.R. § 351.213(d)(1). Specifically, the request was made on November
20, 2018, approximately one year after the publication of the notice of initiation on November 13,
2017.
B. 	Final Results
On May 17, 2019, Commerce published the Final Results. There, the Department
continued to find, as it had in the Preliminary Results, that the use of adverse facts available was
warranted with respect to some of Hyundai’s U.S. sales, because it failed “to properly report
consistent product specification information for the U.S. CONNUMs.” Final IDM at 13. For
Commerce, Hyundai’s “inconsistent reporting of product specification information preclude[d]
Commerce from accurately determining normal value, because Commerce [could not] match the
U.S. sales of these CONNUMs to the appropriate sales in Hyundai’s home market database.” Final
IDM at 13. Although Hyundai had explained, in its initial Section C questionnaire response, the
differences, and reconciled the reported data with the source documentation, Commerce found that
the differences precluded the determination of normal value because “it [was] unduly difficult for
Commerce to determine the proper specification for an accurate match.” Final IDM at 15.
Commerce further found that “[b]ecause [it] [was] unable to determine an appropriate match, and
Hyundai did not provide the necessary information despite two requests to do so, we continue to
determine that Hyundai’s failure to report consistent product specification information constitutes
a failure by Hyundai to cooperate to the best of its ability, pursuant to [19 U.S.C. § 1677e(b)].”
Final IDM at 15.
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Thus, Commerce determined a weighted-average dumping margin for Hyundai based on
adverse facts available of 36.59 percent, and a weighted-average dumping margin of 2.68 percent
for POSCO/PDW. See Final Results, 84 Fed. Reg. at 24,084. As neither rate was zero, de minimis,
or based entirely on facts available, Commerce weight-averaged the two rates to determine the
“all-others” rate, i.e., the rate to apply to companies not individually examined, of 11.60 percent.
See id.; see also 19 U.S.C. § 1673d(c)(5)(A).
Also, in the Final Results, Commerce assigned Company A the 11.60 percent all-others
rate:
Consistent with our normal practice, we continue to find it appropriate to calculate
the rate for the companies not selected for individual examination in this
administrative review (including Hyundai’s affiliated freight company) based on
[19 U.S.C. § 1673d(c)(5)(A)]. Thus, we continue to assign to the companies not
individually examined a margin equal to the weighted average of the estimated
weighted average dumping margins established for exporters and producers
individually investigated, excluding any zero and de minimis margins, and any
margins determined entirely on the basis of facts available.
Final IDM at 26 (emphasis added). In doing so, the Department rejected U.S. Steel’s request to
rescind the review with respect to Company A as untimely:
Because the petitioners [including U.S. Steel] did not file a timely request to rescind
the review with respect to Hyundai’s affiliated freight company [i.e., Company A,]
and only requested to withdraw the review for that company in its administrative
case brief, well after Commerce had issued its Preliminary Results, we find that it
is not appropriate to rescind the review for that company at such a late stage of the
administrative review.
Final IDM at 27. Moreover, the Department declined to collapse Company A, based on the record
evidence showing that it was neither a producer nor an exporter of subject merchandise.20 By way
of explanation, Commerce stated:
20 	Under Commerce’s regulations, the agency “will treat two or more affiliated
producers as a single entity where those producers have production facilities for similar or identical
products that would not require substantial retooling of either facility in order to restructure
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Consol. Court No. 19-00099 	Page 18
[B]ased on the record of this review, we agree with both the petitioners and Hyundai
that the affiliated freight company [Company A] is neither a producer nor exporter
of the subject merchandise. Record evidence identifies the entity in question as
involved in the transport of raw materials to Hyundai’s production facilities and the
transport of finished cold-rolled steel to domestic customers. However, there is
nothing on the record which suggests that this entity has the facilities to produce or
sell the subject merchandise. Moreover, we note that Commerce relies on the
totality of the circumstances in deciding when to treat affiliated parties as a single
entity, pursuant to 19 CFR 351.401(f). In this case, because the affiliated freight
company is involved in transportation and is not a producer or exporter, we find
that it would not be appropriate to collapse this company with Hyundai, regardless
of the remaining collapsing criteria.
Final IDM at 27 (emphasis added). Hyundai and U.S. Steel timely commenced their respective
lawsuits to challenge Commerce’s use of adverse facts available, its decision to apply the all-others
rate to Company A, and its denial of U.S. Steel’s request to rescind the review with respect to
Company A or, in the alternative, to collapse Company A.
STANDARD OF REVIEW
The court will sustain a determination by Commerce unless it is “unsupported by
substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i).
LEGAL FRAMEWORK
I. 	Statutory Prerequisite to Use of Facts Available: Notice and Opportunity to Remedy
The “basic purpose” of the antidumping statute is to “determin[e] current margins as
accurately as possible.” Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir.
1990). The burden of creating the administrative record lies with the interested parties; through
manufacturing priorities and the Secretary concludes that there is a significant potential for the
manipulation of price or production.” 19 C.F.R. § 351.401(f)(1).
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Consol. Court No. 19-00099 	Page 19
questionnaires, Commerce asks for the information that it deems necessary to make its margin
determinations. BMW of N. Am. LLC v. United States, 926 F.3d 1291, 1295 (Fed. Cir. 2019)
(quoting Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1337 (Fed. Cir. 2016)).
The statute provides that, if “necessary information is not available on the record, or . . . an
interested party or any other person . . . withholds information that has been requested by
[Commerce]” or “significantly impedes a proceeding,” Commerce shall use “facts otherwise
available” in reaching a determination. See 19 U.S.C. § 1677e(a)(1)-(2)(A), (C). Where Commerce
has determined that the use of facts available is warranted, it may apply adverse inferences to the
facts available if it makes the requisite additional finding that an “interested party has failed to
cooperate by not acting to the best of its ability to comply with a request for information.” Id.
§ 1677e(b)(1). “To the best of its ability” means “one’s maximum effort.” Nippon Steel Corp. v.
United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
Before Commerce may use facts available, however, it must comply with the notice and
remedial requirements of § 1677m(d). See 19 U.S.C. § 1677e(a) (emphasis added) (Commerce
“shall, subject to section 1677m(d) of this title, use the facts otherwise available in reaching the
applicable determination under this subtitle.”); see also Hyundai Steel Co. v. United States, 42 CIT
__, __, 319 F. Supp. 3d 1327, 1334 n.3 (2018) (citation omitted) (“Section 1677m(d) provides the
procedures Commerce must follow when a party files a deficient submission.”). This section
provides that, if Commerce finds a deficiency in a response to its request for information, it “shall
promptly inform the person submitting the response of the nature of the deficiency and shall, to
the extent practicable, provide that person with an opportunity to remedy or explain the
deficiency.” 19 U.S.C. § 1677m(d). If the remedial response or explanation is found unsatisfactory
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Consol. Court No. 19-00099 	Page 20
or untimely, the Department may, subject to § 1677m(e),21 “disregard all or part of the original
and subsequent responses” in favor of facts available. Id.
The failure by Commerce to provide a respondent with the statutorily required notice of a
deficiency in its questionnaire response “can render the decision [to apply facts available]
‘unsupported by substantial evidence and otherwise contrary to law.’” Ta Chen Stainless Steel
Pipe v. United States, 23 CIT 804, 819 (1999) (not reported in Federal Supplement) (quoting
Usinor Sacilor v. United States, 19 CIT 711, 745, 893 F. Supp. 1112, 1141-42 (1995), aff’d in part
and rev’d in part, 215 F.3d 1350 tbl. (Fed. Cir. 1999)).
Broadly drawn initial or supplemental questionnaires may not sufficiently place a
respondent on notice of the nature of the deficiency, and deprive it of the opportunity to remedy
that deficiency. See, e.g., Usinor, 19 CIT at 744-45, 893 F. Supp. at 1141-42 (finding, in a subsidy
case, that the Department’s broadly drawn initial questionnaires did not “discharge [Commerce]
from its obligation to put parties on notice as to the deficiencies in their responses” with respect to
the effect of the subsidies, when the questionnaire did not seek information on the issue of tying);
21 	This section provides:
In reaching a determination under . . . this title [Commerce] . . . shall not decline to
consider information that is submitted by an interested party and is necessary to the
determination but does not meet all the applicable requirements established by
[Commerce] . . . if—
(1) the information is submitted by the deadline established for its submission,
(2) the information can be verified,
(3) the information is not so incomplete that it cannot serve as a reliable basis for
reaching the applicable determination,
(4) the interested party has demonstrated that it acted to the best of its ability in
providing the information and meeting the requirements established by the
administering authority . . . with respect to the information, and
(5) the information can be used without undue difficulties.
19 U.S.C. § 1677m(e) (emphasis added).
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Ta Chen, 23 CIT at 820 (quoting Böwe–Passat v. United States, 17 CIT 335, 343 (1993) (not
reported in Federal Supplement) (stating that this Court would not endorse “an investigation where
[Commerce] sent out a general questionnaire and a brief deficiency letter, then effectively retreated
into its bureaucratic shell, poised to penalize [respondent] for deficiencies not specified in the letter
that 	[Commerce] 	would 	only 	disclose 	after 	it 	was 	too 	late, 	i.e., 	after 	the 	preliminary
determination.”).
Courts have found that Commerce satisfies its obligation under § 1677m(d) to place the
respondent on notice of the nature of a deficiency in its initial questionnaire response where a
supplemental questionnaire “specifically point[s] out and request[s] clarification of [the] deficient
responses,” and identifies the information needed to make the required showing. See NSK Ltd. v.
United States, 481 F.3d 1355, 1360 n.1 (Fed. Cir. 2007) (holding that “Commerce . . . satisfied its
obligations under section 1677m(d) when it issued a supplemental questionnaire specifically
pointing out and requesting clarification of [the] deficient responses.”); Hyundai Steel, 42 CIT at
__, 319 F. Supp. 3d at 1346 (“Commerce’s supplemental questionnaire notified Plaintiff that its
initial submissions were insufficient to demonstrate the arm’s length nature of the transactions and
identified the information it needed to make that showing.”).
II. 	Regulations on Rescinding Review and Collapsing Affiliated Companies
Commerce’s regulations set out the circumstances in which an administrative review may
be rescinded, and applicable time limitations. See 19 C.F.R. § 351.213(d). Where the party that
requested the review timely withdraws that request, Commerce will rescind the review:
The Secretary will rescind an administrative review under this section, in whole or
in part, if a party that requested a review withdraws the request within 90 days of
the date of publication of notice of initiation of the requested review. The Secretary
may extend this time limit if the Secretary decides that it is reasonable to do so.
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Consol. Court No. 19-00099 	Page 22
Id. § 351.213(d)(1). Additionally, Commerce may rescind a review where it self-initiated the
proceedings, or where the Department concludes “that, during the period covered by the review,
there were no entries, exports, or sales of the subject merchandise, as the case may be.” Id.
§ 351.213(d)(2), (3).
Collapsing means treating affiliated producers as one entity, and assigning the collapsed
entity a single rate. See Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,345
(Dep’t Commerce May 19, 1997) (Preamble). Commerce’s regulations incorporate by reference
the definition of “affiliated persons” in 19 U.S.C. § 1677(33).22 See 19 C.F.R. § 351.102(b)(3).
22 	The statute provides that the following persons “shall be considered to be
‘affiliated’ or ‘affiliated persons’”:
(A) Members of a family, including brothers and sisters (whether by the whole or
half blood), spouse, ancestors, and lineal descendants.
(B) Any officer or director of an organization and such organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly owning, controlling, or holding with power to
vote, 5 percent or more of the outstanding voting stock or shares of any organization
and such organization.
(F) Two or more persons directly or indirectly controlling, controlled by, or under
common control with, any person.
(G) Any person who controls any other person and such other person.
For purposes of this paragraph, a person shall be considered to control another
person if the person is legally or operationally in a position to exercise restraint or
direction over the other person.
19 U.S.C. § 1677(33). Additionally, Commerce’s regulations provide with respect to “control”:
In determining whether control over another person exists, within the meaning of
[§ 1677(33)], the Secretary will consider the following factors, among others:
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Mere affiliation, however, is not enough. Commerce will collapse “affiliated producers
[into] a single entity where those producers have production facilities for similar or identical
products that would not require substantial retooling of either facility in order to restructure
manufacturing priorities and the [Department] concludes that there is a significant potential for the
manipulation of price or production.” 19 C.F.R. § 351.401(f)(1); see also Carpenter Tech. Corp.
v. United States, 510 F.3d 1370, 1373 (Fed. Cir. 2007) (observing that the “principal authority
governing collapsing is 19 C.F.R. § 351.401(f)”).
The Department considers a number of factors when assessing “[s]ignificant potential for
manipulation,” including (1) the level of common ownership; (2) the extent to which managerial
employees or board members of one firm sit on the board of directors of an affiliated firm; and
(3) whether operations are intertwined, such as through the sharing of sales information,
involvement in production and pricing decisions, the sharing of facilities or employees, or
significant transactions between the affiliated producers. 19 C.F.R. § 351.401(f)(2).
Corporate or family groupings; franchise or joint venture agreements; debt
financing; and close supplier relationships. The Secretary will not find that control
exists on the basis of these factors unless the relationship has the potential to impact
decisions concerning the production, pricing, or cost of the subject merchandise or
foreign like product. The Secretary will consider the temporal aspect of a
relationship 	in 	determining 	whether 	control 	exists; 	normally, 	temporary
circumstances will not suffice as evidence of control.
19 C.F.R. § 351.102(b)(3).
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DISCUSSION
I. 	Commerce’s Use of Facts Available Is Neither Supported by Substantial Evidence
Nor in Accordance with Law
In the Final Results, the Department found that the use of facts available was warranted
with respect to some of Hyundai’s U.S. sales because it failed “to properly report consistent
product specification information for the U.S. CONNUMs.” Final IDM at 13. For Commerce,
Hyundai’s “inconsistent reporting of product specification information preclude[d] Commerce
from accurately determining normal value, because Commerce [could not] match the U.S. sales of
these CONNUMs to the appropriate sales in Hyundai’s home market database.” Final IDM at 13.
Although Hyundai had explained the differences in specification data for products reported “as
produced” and “as sold,” and reconciled the reported data with the source documentation in its
responses, Commerce found that the differences precluded the determination of normal value
because “it [was] unduly difficult for Commerce to determine the proper specification for an
accurate match.” Final IDM at 15.
Based on the same facts cited in support of its use of facts available, the Department further
found that the use of an adverse inference was warranted, stating that Hyundai had failed to
cooperate with Commerce’s requests for information to the best of its ability: “Because Commerce
[was] unable to determine an appropriate match, and Hyundai did not provide the necessary
information despite two requests to do so, we continue to determine that Hyundai’s failure to report
consistent product specification information constitutes a failure by Hyundai to cooperate to the
best of its ability, pursuant to [19 U.S.C. § 1677e(b)].” Final IDM at 15.
In making its facts available finding, Commerce rejected Hyundai’s argument that the
Department had failed to discharge its statutory obligation under § 1677m(d) to provide notice of
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Consol. Court No. 19-00099 	Page 25
the nature of the deficiency and an opportunity to correct or explain it. Commerce found that
Hyundai had received notice through its Initial and Supplemental Questionnaires:
In the initial [antidumping] questionnaire, Commerce instructed Hyundai to report
product specification information for each CONNUM that Hyundai sold in the
United States. Additionally, Commerce instructed Hyundai in its June 18, 2018,
supplemental questionnaire to ensure that it had accurately reported all product
specifications, and to revise its response as necessary. Thus, despite the arguments
raised by Hyundai about having insufficient notice of deficiencies, we find that the
initial [antidumping] questionnaire and Commerce’s June 18, 2018, supplemental
questionnaire provided Hyundai with two opportunities to provide accurate and
consistent product specification information. Specifically, the June 18, 2018,
supplemental questionnaire requested that Hyundai ensure that it accurately
reported all product specification information in its sales and cost reporting and
afforded Hyundai an opportunity to remedy deficiencies that existed in its reporting
of product specification information in its original questionnaire responses. Thus,
we continue to find that Hyundai failed to correct this reporting error despite the
opportunity afforded Hyundai in our June 18, 2018, supplemental questionnaire to
remedy this deficiency.
Final IDM at 13-14. Additionally, Commerce argued that its application of adverse facts available
“to sales for which Hyundai provided inconsistent product specifications is consistent with the
analysis of those sales” in the investigation segment—an application of adverse facts available that
was ultimately upheld by this Court. Final IDM at 14.
Hyundai maintains that Commerce’s use of facts available in the Final Results based on
uncured “deficiencies” in its reporting cannot be sustained. It insists that its reporting was accurate,
but to the extent Commerce found any problem with the data or the manner in which it was
reported, Commerce failed to notify Hyundai and “afford [it] a reasonable opportunity to remedy
or explain any perceived deficiency”:
Commerce in this proceeding only issued a single supplemental questionnaire, with
only vague references to the information Commerce later determined to be
deficient. As a matter of law, Commerce is therefore barred from resorting to [facts
available or adverse facts available], as the agency did not afford [Hyundai] the
procedural safeguards required by the statute.
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Hyundai’s Br. 9-10. For Hyundai, “[t]he Court should remand the Final Results, with instructions
to calculate [Hyundai]’s margin without the application of facts available, adverse or otherwise,
as Commerce’s determination is both unsupported by substantial evidence and contrary to law.”
Hyundai’s Br. at 12.
For its part, Commerce argues that it complied with § 1677m(d)’s notice and remedial
requirements:
Commerce “instructed Hyundai to report product specification information for each
CONNUM that Hyundai sold in the United States.” . . . Hyundai responded to
Commerce’s 	initial 	questionnaire 	but 	failed 	to 	report 	consistent 	product
specification information for all of its sales. . . . Consequently, in its supplemental
questionnaire, and consistent with 19 U.S.C. § 1677m(d), Commerce asked
Hyundai to “ensure that {it} accurately reported all product specifications in {its}
sales and cost reporting.” . . . Commerce also indicated that Hyundai should “revise
{its} response as necessary.” . . . Thus, Commerce fully satisfied the requirements
of 19 U.S.C. § 1677m(d), and there is no merit to Hyundai’s assertions that
Commerce failed to notify Hyundai of the “nature of the perceived deficiency.” . . .
Despite Commerce’s invitation to submit correct and accurate information,
Hyundai responded that “{n}o revisions are required,” and it “reported accurately
all product specifications in the sales and cost databases . . .” . . . Thus, Hyundai
declined 	to 	correct 	inconsistent 	product 	specification 	information 	despite
Commerce’s request that Hyundai ensure that its specification information was
accurate.
Def.’s Br. 16 (record citations omitted). Thus, for Commerce, its use of not only facts available,
but adverse facts available, was lawful and supported by the record.
The law requires that Commerce must comply with the notice and remedial requirements
of § 1677m(d) before it may use facts available. See 19 U.S.C. § 1677e(a) (noting that Commerce’s
use of facts available under § 1677e(a) is “subject to section 1677m(d) of this title”). This section
provides that, if Commerce finds a deficiency in a response to its request for information, it “shall
promptly inform the person submitting the response of the nature of the deficiency and shall, to
the extent practicable, provide that person with an opportunity to remedy or explain the
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Consol. Court No. 19-00099 	Page 27
deficiency.” Id. § 1677m(d); see also Hyundai Steel, 42 CIT at __, 319 F. Supp. 3d at 1334 n.3
(“Section 1677m(d) provides the procedures Commerce must follow when a party files a deficient
submission.”). Courts have found that Commerce’s supplemental questionnaire adequately placed
the respondent on notice of the nature of the deficiency in its response, where the questionnaire
“specifically point[ed] out and request[ed] clarification of [the] deficient responses,” and identified
the information needed to make the required showing. See NSK Ltd., 481 F.3d at 1360 n.1; Hyundai
Steel, 42 CIT at __, 319 F. Supp. 3d at 1346. This standard was not met here.
Commerce’s broadly drawn Supplemental Questionnaire did not satisfy the notice
requirement in § 1677m(d) because it failed to identify the nature of the alleged “deficiency” in
Hyundai’s response with any specificity. See Supplemental Questionnaire at 6 (“Please ensure that
you have accurately reported all product specifications in your sales and cost reporting, including
whether or not the merchandise is prime or non-prime. Revise your response as necessary.”). It is,
as Hyundai insists, “vague.” For example, the question says nothing about any error with respect
to Hyundai’s interpretation of the Initial Questionnaire instructions to report product code on an
“as sold” basis, and specification on an “as produced” basis, which Hyundai explained in its
Section C responses.
Moreover, the language “including whether or not the merchandise is prime or non-prime”
gave no indication as to what Commerce may have found deficient. Whether merchandise is prime
or 	non-prime 	pertained 	to 	field 	2.2, 	“PRIMEU,” 	and 	not 	PRODCOD2U 	(field 	1.0) 	or
SPECGRADEU (field 2.3). See Hyundai’s Br. 6 (citing Hyundai’s Sec. C Quest. Resp. at C-12).
Rather, Commerce simply asked Hyundai to ensure the “accuracy” of its reporting of “all product
specifications” in Hyundai’s sales and cost reporting.
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It is difficult to see how the word “accuracy” in the Supplemental Questionnaire should
have alerted Hyundai that the specification data it provided was somehow “deficient.”23 In any
event, Commerce seems to have objected to the method Hyundai applied to report specification
data in the PRODCOD and SPECEGRADE fields. It did not say so in the Supplemental
Questionnaire, however, but only later in the Preliminary Results. See PDM at 9 (emphasis added)
(“[A]fter examining the manner in which Hyundai reported the product specifications for certain
CONNUMs in the United States and home market, we have determined that Hyundai reported
inconsistent product specifications in its home market database which is otherwise contradicted by
information in Hyundai’s U.S. sales database.”). The reported data may well have been perfectly
accurate (i.e., correct) and yet, according to Commerce, deficient, because in some instances
mismatches in the data existed—mismatches that Hyundai had identified and explained in its
narrative responses.24
Finally, to the extent Commerce argues that its use of adverse facts available in a prior
segment (the investigation), which this Court sustained in Hyundai Steel, justified its use of
adverse facts available in this review, the court is unpersuaded. See Final IDM at 14 (citing
Hyundai Steel, 42 CIT at __, 319 F. Supp. 3d at 1349-53; Hyundai Steel Co. v. United States, 43
CIT __, 365 F. Supp. 3d 1294 (2019)). “[E]ach administrative review is a separate segment of an
antidumping proceeding and each with its own, unique administrative record.” Shenzhen Xinboda
Indus. Co. v. United States, 44 CIT __, __, 456 F. Supp. 3d 1272, 1285 n.22 (2020). The
23 	Accuracy means “freedom from mistake or error : CORRECTNESS.” Accuracy,
M ERRIAM -WEBSTER .COM, https://www.merriam-webster.com/dictionary/accuracy (last visited this
date).
24 	Indeed, after checking its reported specification data, unaware that it was the
method with which Commerce took issue, Hyundai responded that its reporting was accurate.
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investigation record before the Court in Hyundai Steel contained facts not present here. There,
unlike in this case, Hyundai was provided with notice of specific deficiencies in its data reporting
that were discovered at verification and was afforded an opportunity to explain them. See Hyundai
Steel, 42 CIT at __, 319 F. Supp. 3d at 1354. Hyundai, however, was unable to do so. Thus, this
Court held that “Commerce complied with the requirements of section 1677m(d).” Id.
Commerce knew what it was looking for when it issued the Supplemental Questionnaire.
See PDM at 9 (emphasis added) (“After finding discrepancies with the reported information in
Hyundai’s original questionnaire response, in our June 18, 2018 supplemental questionnaire, we
instructed Hyundai to ‘please ensure that you have accurately reported all product specifications
in your sales and cost reporting, including whether or not the merchandise is prime or non-prime.
Revise your response as necessary.’”). But Commerce only hinted at it in the Supplemental
Questionnaire. On this record, by failing to identify in the Supplemental Questionnaire anything
in particular about Hyundai’s reported specification data that it found lacking, Commerce failed
in its duty under § 1677m(d) to give notice of a perceived deficiency and a meaningful opportunity
to explain or remedy it. Indeed, Commerce’s Supplemental Questionnaire is the type of “brief
deficiency letter” that this Court has found inadequate to satisfy its duty under § 1677m(d). See Ta
Chen, 23 CIT at 820. Here, Commerce “effectively retreated into its bureaucratic shell, poised to
penalize [respondent] for deficiencies not specified in the letter that [Commerce] would only
disclose after it was too late,” i.e., after the Preliminary Results. Id.
Additionally, it is worth noting that Commerce found that differences in the reported
specification data precluded the determination of normal value, not because necessary data was
not placed on the record, but because “it [was] unduly difficult for Commerce to determine the
proper specification for an accurate match.” Final IDM at 15. Had Commerce given Hyundai
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adequate notice of the nature of the deficiency, i.e., that product specification data for some sales
was not presented in a way that permitted Commerce to easily match products sold in the home
market and those sold in the United States, Hyundai could have attempted to explain or remedy
the alleged deficiency and eliminate the claimed undue difficulty. But Commerce chose not to give
adequate notice.
Because the Department’s finding that its Initial and Supplemental Questionnaires placed
Hyundai on notice of the nature of the perceived deficiency lacks the support of substantial
evidence and is otherwise not in accordance with the law, the court remands this matter. On
remand, Commerce shall identify with specificity the control numbers and individual U.S. sales
with respect to which it found a deficiency in the reported specification data (PRODCOD2U/H
and SPECGRADEU/H); clearly describe the nature of each deficiency; and provide Hyundai an
opportunity to fix it. Then, Commerce shall reconsider whether the use of facts otherwise available
is warranted with respect to any of Hyundai’s sales, and adequately explain and support its remand
redetermination with substantial evidence.
The court remands on facts available grounds, so it need not reach the issue of whether the
Department’s adverse inference finding is supported by the record, but Commerce should bear in
mind, on remand, that the use of adverse facts available under § 1677e requires two distinct
findings, each of which must be supported by the record: first, a determination as to whether the
use of facts available is warranted, and second, a determination as to whether the respondent did
its subjective best to cooperate. See Nippon Steel Corp., 337 F.3d at 1381; see also Nat’l Nail
Corp. v. United States, 43 CIT __, __, 390 F. Supp. 3d 1356, 1374 (2019) (not reported in Federal
Supplement). The two required findings are distinct, and this Court has cautioned Commerce
against conflating them. Nat’l Nail, 43 CIT at __, 390 F. Supp. 3d at 1374 (citation omitted) (“[T]he
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law requires that the record must support a finding that the use of facts available is warranted
before Commerce may make the separate, additional finding that an adverse inference is
warranted.”). If Commerce determines that the use of facts otherwise available is warranted, and
it makes the additional, distinct finding that Hyundai failed to cooperate to the best of its ability,
it must adequately explain and support each finding with substantial evidence.
II. 	Commerce’s Decisions on Rescission and Collapsing Are Supported by Substantial
Evidence and Otherwise in Accordance with Law, But Its Assignment of a Rate to
Company A Was Contrary to Law
At the outset of the proceeding, U.S. Steel requested review of sixteen entities, including
Company A, Hyundai’s affiliated freight company. On November 13, 2017, Commerce published
a notice that it had initiated the requested review. Under Commerce’s regulations, U.S. Steel could
withdraw its request “within 90 days of the date of publication of notice of initiation of the
requested review,” unless the deadline was extended by Commerce. See 19 C.F.R. § 351.213(d)(1).
On November 20, 2018, after the Preliminary Results were published, and well after the
regulatory deadline to withdraw its request for review, U.S. Steel argued in its case brief before
the agency that Commerce should rescind the review with respect to Company A, or collapse it
with Hyundai. Fundamentally, U.S. Steel objected to Company A’s receipt of the all-others rate
(11.68 percent), as determined in the Preliminary Results.
In the Final Results, Commerce declined to rescind its review of Company A, finding that
U.S. Steel had failed to timely request that Commerce do so. See Final IDM at 27 (“Because the
petitioners [including U.S. Steel] did not file a timely request to rescind the review with respect to
Hyundai’s affiliated freight company and only requested to withdraw the review for that company
in its administrative case brief, well after Commerce had issued its Preliminary Results, we find
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that it is not appropriate to rescind the review for that company at such a late stage of the
administrative review.”).
Then, Commerce went on to assign the 11.60 percent all-others rate to those companies
that were not individually examined, including Company A:
Throughout the course of the administrative review, we limited our examination of
respondents, pursuant to [19 U.S.C. § 1677f-1(c)(2)], and selected Hyundai and
POSCO/PDW for individual examination as the two exporters or producers
accounting for the largest volume of U.S. imports of the subject merchandise.
Consistent with our normal practice, we continue to find it appropriate to calculate
the rate for the companies not selected for individual examination in this
administrative review (including Hyundai’s affiliated freight company) based on
[19 U.S.C. § 1673d(c)(5)(A)25 ]. Thus, we continue to assign to the companies not
individually examined a margin equal to the weighted average of the estimated
weighted average dumping margins established for exporters and producers
individually investigated, excluding any zero and de minimis margins, and any
margins determined entirely on the basis of facts available.
Final IDM at 26 (emphasis added). In other words, Commerce treated Company A like any other
non-mandatory respondent, i.e., a company that was not individually examined in the review, and
assigned it the all-others rate.
Additionally, Commerce declined to collapse Company A because it was neither a
producer nor an exporter. By way of explanation, Commerce stated:
[B]ased on the record of this review, we agree with both the petitioners and
Hyundai that the affiliated freight company [Company A] is neither a producer nor
exporter of the subject merchandise. Record evidence identifies the entity in
question as involved in the transport of raw materials to Hyundai’s production
facilities and the transport of finished cold-rolled steel to domestic customers.
However, there is nothing on the record which suggests that this entity has the
facilities to produce or sell the subject merchandise. Moreover, we note that
Commerce relies on the totality of the circumstances in deciding when to treat
affiliated parties as a single entity, pursuant to 19 CFR 351.401(f). In this case,
because the affiliated freight company is involved in transportation and is not a
25 	This section provides: “[T]he estimated all-others rate shall be an amount equal to
the weighted average of the estimated weighted average dumping margins established for
exporters and producers individually investigated, excluding any zero and de minimis margins,
and any margins determined entirely under section 1677e of this title.” 19 U.S.C. § 1673d(c)(5)(A).
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producer or exporter, we find that it would not be appropriate to collapse this
company with Hyundai, regardless of the remaining collapsing criteria.
Final IDM at 27 (emphasis added). Put another way, Commerce determined that because Company
A, though affiliated with Hyundai, was neither a producer nor an exporter and had no “facilities to
produce or sell the subject merchandise,” the criteria in 19 C.F.R. § 351.401(f)(1) could not be
met. That is, it was not an “affiliated producer[]” that had “production facilities for similar or
identical products that would not require substantial retooling . . . in order to restructure
manufacturing priorities,” nor did Commerce “conclude[] that there is a significant potential for
the manipulation of price or production.” 19 C.F.R. § 351.401(f)(1). The Department found that
collapsing was, thus, unwarranted.
As to rescission, U.S. Steel does not dispute that as the party that requested the review of
Company A, it was authorized under Commerce’s regulations to withdraw the request, i.e., to ask
Commerce to rescind the review, within a certain time limit. Nor does it argue that that its request
to rescind was timely. Rather, U.S. Steel argues that Commerce’s assignment of the all-others rate
to Company A is contrary to the antidumping statute because the statute authorizes Commerce to
determine an antidumping margin solely for a producer or exporter of the subject merchandise, not
a freight company:
Commerce’s interpretation [of the statute] is unreasonable because there is no
statutory provision that would permit Commerce to assign an [antidumping] margin
to an entity that is neither a producer nor an exporter. Moreover, Commerce’s
interpretation would permit circumvention of high [antidumping] rates by affiliates
that receive lower cash deposit rates simply because they neither produced nor
exported during the period of review.
U.S. Steel’s Br. 7. In other words, for U.S. Steel, notwithstanding the lateness of its request,
Commerce should have rescinded the review of Company A because assigning the all-others rate
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to a company that was neither a producer nor an exporter of subject merchandise was contrary to
the statute.
U.S. Steel further contends that Commerce has in prior cases collapsed affiliated entities
that were not “producers” of subject merchandise, but were indirectly involved in its production
or exportation. U.S. Steel argues that “Commerce has a well-established practice of collapsing
producing and non-producing entities if the regulatory criteria establishing a significant potential
for manipulation are satisfied and thus, Commerce cannot lawfully ignore this practice without
providing a reasoned explanation.” U.S. Steel’s Br. 7-8. For U.S. Steel, Commerce “never applied
its established practice and did not explain why it did not apply the practice in this administrative
review.” U.S. Steel’s Br. 8. Thus, it contends that the Final Results “lack the support of substantial
record evidence” because “Commerce failed to engage with the record by erroneously applying its
regulation and past practice,” and maintains that “[h]ad Commerce applied its practice and
regulatory criteria, it would have concluded that there is a substantial likelihood of manipulation
of Hyundai Steel’s high [antidumping] margin by the affiliated freight company.” U.S. Steel’s
Br. 8.
Taking up collapsing first, Commerce maintains that the determination of whether to
collapse is fact-intensive, and that on the record here there was no evidence that Company A was
in any way involved in production or had the facilities to produce the subject merchandise. Final
IDM at 27. Commerce argues that the past cases in which it collapsed producers with affiliated
resellers or distributors are distinguishable because in those cases, unlike here, the affiliates were
found to be producers, or to have “administered service centers that manufactured subject
merchandise.” Def.’s Br. 28-29. Had U.S. Steel placed evidence on the record tending to prove
that Company A is a producer or manufacturer, or indeed that it had the capability to become one,
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the result might have been different. As the record stands, Commerce’s conclusion that the record
is insufficiently developed to collapse Company A with Hyundai cannot be faulted, and it is
sustained.
Regarding rescission, Commerce states that U.S. Steel requested a review of Company A,
and failed to timely withdraw its request. Def.’s Br. 28. Thus, Company A was left in the case
among other companies that were not individually examined. In the Preliminary Results, Company
A was assigned the all-others rate. Only after the rate was determined did U.S. Steel raise an
objection to the review of Company A. For Commerce, it reasonably treated Company A like any
other unexamined company and assigned it the all-others rate. Def.’s Br. 27.
The court sustains Commerce’s finding that U.S. Steel’s request to rescind the review of
Company A was untimely. The regulations set out a ninety-day time limit in which a party may
withdraw its request for review—a time limit that U.S. Steel was aware of, and complied with,
when it withdrew its request for review with respect to several companies other than Company A,
on February 14, 2018. See 19 C.F.R. § 351.213(d)(1). The regulations provide for extensions of
time to withdraw the request, but an extension must be requested by the party seeking rescission,
and a sound reason for seeking the extension must be provided. See id.; see also Soc Trang Seafood
Joint Stock Co. v. United States, 42 CIT __, __, 321 F. Supp. 3d 1329, 1345 (2018) (although
requests to review a mandatory respondent were withdrawn more than ninety days after the
publication of the notice of initiation of the review, Commerce granted extension where the
requesting parties explained they “could not foresee the need to rescind in the first 90–days of this
review and that a rescission of the review would aid in implementation” of a WTO settlement
agreement entered into by the United States and Socialist Republic of Vietnam). Here, U.S. Steel
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did not request an extension of time to withdraw its request for review. Having failed to request
an extension U.S. Steel did not satisfy the prerequisites for asking that a review be rescinded.
Nonetheless, the court finds convincing U.S. Steel’s statutory argument that assigning the
all-others rate to a non-producer or exporter violated the antidumping statute. Commerce has the
authority to determine antidumping duties for “exporters and producers.” See, e.g., 19 U.S.C.
§ 1673b(d)(1)(A) (emphasis added) (“If the preliminary determination of [the Department] under
subsection (b) of this section is affirmative, [Commerce] . . . shall . . . determine an estimated
weighted average dumping margin for each exporter and producer individually investigated, and
. . . determine, in accordance with section 1673d(c)(5) of this title, an estimated all-others rate for
all exporters and producers not individually investigated . . . .”); id. § 1673d(c)(1)(B)(i)(I)
(emphasis added) (Commerce “shall . . . determine the estimated weighted average dumping
margin for each exporter and producer individually investigated”); id. § 1677f-1(c)(1) (emphasis
added) (“In determining weighted average dumping margins under section 1673b(d), 1673d(c), or
1675(a) of this title, [Commerce] shall determine the individual weighted average dumping margin
for each known exporter and producer of the subject merchandise.”); id. § 1673d(c)(5)(B)
(emphasis added) (defining the “estimated all-others rate” as the rate “for exporters and producers
not individually investigated”).
Commerce relies on domestic interested parties to identify “individual exporters or
producers covered by an order” for review, and to withdraw the request within prescribed time
limits. See 19 C.F.R. § 351.213(b)(1) (emphasis added) (“Each year during the anniversary month
of the publication of an antidumping or countervailing duty order, a domestic interested party or
an interested party . . . may request in writing that the Secretary conduct an administrative
review . . . of specified individual exporters or producers covered by an order (except for a
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countervailing duty order in which the investigation or prior administrative review was conducted
on an aggregate basis), if the requesting person states why the person desires the Secretary to
review those particular exporters or producers.”); id. § 351.213(d)(1). Here, U.S. Steel identified
Company A as an exporter or producer. See Pet’rs’ Request for Admin. Rev. at 2.
Although Commerce relied on U.S. Steel to identify exporters and producers—and in the
usual case would have been entitled to do so—once it found that Company A was neither one, it
need not have waited for U.S. Steel to ask for rescission to find that it could not determine a rate
for Company A. See Final IDM at 27 (“[B]ased on the record of this review, we agree with both
the petitioners and Hyundai that the affiliated freight company [Company A] is neither a producer
nor exporter of the subject merchandise. Record evidence identifies the entity in question as
involved in the transport of raw materials to Hyundai’s production facilities and the transport of
finished cold-rolled steel to domestic customers. . . . [T]here is nothing on the record which
suggests that this entity has the facilities to produce or sell the subject merchandise.”). The statute
authorizes Commerce to determine antidumping duty rates only for producers and exporters. 19
U.S.C. § 1673b(d)(1)(A) (emphasis added) (“If the preliminary determination of [the Department]
under subsection (b) of this section is affirmative, [Commerce] . . . shall . . . determine an estimated
weighted 	average 	dumping 	margin 	for 	each 	exporter 	and 	producer 	individually
investigated . . . .”); see also id. § 1673d(c)(1)(B)(i)(I). It does not empower Commerce to assign
a rate to a freight company. Having made this finding, Commerce need not have waited for U.S.
Steel to object to decline to determine a rate for Company A. It should have done so on its own
initiative.26
26 	The court recognizes that Commerce’s regulations provide that the Department
may rescind an administrative review that it self-initiated. 19 C.F.R. § 351.213(d)(2). It may also
rescind a review “in whole or only with respect to a particular exporter or producer, if the Secretary
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Because Commerce was not authorized to perform the statutorily impossible act of
assigning a rate to Company A, U.S. Steel’s untimely rescission is not consequential. What matters
is that Commerce’s act in assigning a rate to Company A was unlawful and thus a nullity.
Accordingly, on remand, Commerce shall rescind its assignment of the all-others rate to Company
A because it found that Company A was neither an exporter nor a producer and thus violated the
statutory provisions limiting the determination of an antidumping duty rate to those entities.
CONCLUSION and ORDER
For the foregoing reasons, it is hereby
ORDERED that that Department’s use of facts available, under 19 U.S.C. § 1677e(a)
based on Hyundai’s alleged “withholding” of requested information, is remanded for the agency
to comply with its obligation, under 19 U.S.C. § 1677m(d), to notify Hyundai of the nature of the
alleged deficiency(ies) in Hyundai’s questionnaire responses and provide the company an
opportunity to remediate; it is further
ORDERED that, on remand, Commerce shall (1) identify with specificity the control
numbers and individual U.S. sales with respect to which it found a deficiency in Hyundai’s
reported specification data (PRODCOD2U/H and SPECGRADEU/H), (2) clearly describe the
nature of each deficiency, and (3) provide Hyundai an opportunity to remediate it; it is further
ORDERED that, on remand, Commerce shall reconsider whether the use of facts
otherwise available is warranted with respect to any of Hyundai’s sales, and adequately explain
and support its remand redetermination with substantial evidence; it is further
concludes that, during the period covered by the review, there were no entries, exports, or sales of
the subject merchandise, as the case may be.” Id. § 351.213(d)(3). The court’s ruling to rescind
the assignment of the all-others rate to Company A is not inconsistent with the regulations.
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ORDERED that if, on remand, Commerce continues to find that the use of facts available
is warranted, and makes the additional, distinct finding that the application of an adverse inference
is warranted because Hyundai failed to cooperate “to the best of its ability,” under 19 U.S.C.
§ 1677e(b), then it shall support this finding with substantial evidence; it is further
ORDERED that Commerce shall rescind its assignment of the all-others rate to
Company A; and it is further
ORDERED that Commerce’s remand redetermination shall be due ninety (90) days
following the date of this Opinion and Order; any comments to the remand results shall be due
thirty (30) days following the filing of the remand results; and any responses to those comments
shall be filed fifteen (15) days following the filing of the comments.
/s/ Richard K. Eaton
Richard K. Eaton, Judge
Dated: 	April 27, 2021
New York, New York
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