Deacero S.A.P.I. de C.V. et al. v. United States

Slip Op. 20-46
UNITED STATES COURT OF INTERNATIONAL TRADE
DEACERO S.A.P.I. DE C.V. and
DEACERO USA, INC.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
NUCOR CORPORATION,
Defendant-Intervenor.
Before: Claire R. Kelly, Judge
Court No. 17-00183
PUBLIC VERSION
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s second remand redetermination in
the administrative review of carbon and certain alloy steel wire rod from Mexico.]
Dated: April 13, 2020
Rosa S. Jeong and Irwin P. Altschuler, Greenberg Traurig, LLP, of Washington, DC,
for plaintiffs, Deacero S.A.P.I. de C.V. and Deacero USA, Inc.
Elizabeth Anne Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on
the brief were Tara K. Hogan, Assistant Director, Jeanne E. Davidson, Director, and
Joseph H. Hunt, Assistant Attorney General. Of Counsel on the brief was Emma
Thomson Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.
Alan Hayden Price, Daniel Brian Pickard, and Derick G. Holt, Wiley Rein, LLP, of
Washington, DC, for defendant-intervenor, Nucor Corporation.
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PUBLIC VERSION
Kelly, Judge: Before the court is the U.S. Department of Commerce’s (
“Commerce”) second remand redetermination filed pursuant to the court’s order in
Deacero S.A.P.I. de C.V. v. United States, 43 CIT __, __, 393 F. Supp. 3d 1280 (2019)
(“Deacero II”). 	See Final Results of Redetermination Pursuant to Ct. Remand [in
Daecero II] Confidential Version, Oct. 29, 2019, ECF No. 71-1. 	(“Second Remand
Results”); see also Deacero S.A.P.I. de C.V. v. United States, 42 CIT __, __, 353 F.
Supp. 3d 1303, 1314–15 (2018) (“Deacero I”).
Deacero II ruled that Commerce failed to comply with the court’s instruction
to produce the documents upon which it relied to corroborate the 40.52% petition rate
it assigned to respondent as total facts available with an adverse inference (“AFA”)1
in the 2014–2015 administrative review of the antidumping duty (“ADD”) order
1 Parties and Commerce sometimes use the shorthand “adverse facts available” or
“AFA” to refer to Commerce’s reliance on facts otherwise available with an adverse
inference to reach a final determination. 	However, AFA encompasses a two-part
inquiry pursuant to which Commerce must first identify why it needs to rely on facts
otherwise available, and second, explain how a party failed to cooperate to the best of
its ability as to warrant the use of an adverse inference when “selecting among the
facts otherwise available.” See Section 776 of the Tariff Act of 1930, as amended, 19
U.S.C.A. § 1677e(a)–(b) (2018). The phrase “total adverse inferences” or “total AFA”
encompasses a series of steps that Commerce takes to reach the conclusion that all of
a party’s reported information is unreliable or unusable and that, as a result of a
party’s failure to cooperate to the best of its ability, it must use an adverse inference
in selecting among the facts otherwise available.
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PUBLIC VERSION
covering carbon and certain alloy steel wire rod from Mexico.2 See Deacero II, 43 CIT
at __, 393 F. Supp. 3d at 1281, 1285–87; see also Final Results of Redetermination
Pursuant to Ct. Remand [in Deacero I], Mar. 15, 2019, ECF No. 58-1 (“Remand
Results”); Carbon and Certain Alloy Steel Wire Rod From Mexico, 82 Fed. Reg. 23,190
(Dep’t Commerce May 22, 2017) (final results of [ADD] admin. review and final
determination of no shipments; 2014–2015) (“Final Results”) and accompanying
Decision Memo. for [the Final Results], A-201-830, (May 15, 2017), ECF No. 21-5
(“Final Decision Memo.”); Carbon and Certain Alloy Steel Wire Rod from Brazil,
Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 67 Fed. Reg. 65,945,
65,947 (Dep’t Commerce Oct. 29, 2002) (notice of [ADD] orders) (“ADD Order”). The
court 	remanded 	the 	determination 	to 	Commerce 	for 	further 	explanation 	or
reconsideration consistent with its opinion.
For its second remand redetermination, Commerce placed on the record pre-
initiation documents from ADD Order; further, Commerce has placed Deacero’s
margin calculations, and a table summarizing Deacero’s individual transaction-
specific margins in the administrative review of the ADD Order that immediately
2 For its initial remand redetermination, Commerce placed copies of the Federal
Register notice announcing the initiation of its ADD investigation as well as the
public version of the Wire Rod from Mexico Initiation Checklist on the record. 	See
Remand Results at 6; Placement Wire Rod from Mexico Less Than Fair Value (LTFV)
Notice of Initiation & Accompanying Public Version Wire Rod from Mexico Initiation
Checklist on R., PRR 1, bar code 3790294-01 (Feb. 6, 2019) (“Initiation Notice” and
“Initiation Checklist”).
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PUBLIC VERSION
precedes the review at issue. 	Second Remand Results at 1–2; see also Carbon and
Certain Alloy Steel Wire Rod From Mexico, 81 Fed. Reg. 41,521 (Dep’t Commerce
June 	27, 	2016) 	(amended 	final 	results 	of 	[ADD] 	admin. 	review; 	2013–2014).
Commerce 	explains 	that 	the 	factual 	information 	it 	has 	placed 	on 	the 	record
demonstrates that the 40.52 percent petition rate has probative value for use as the
AFA rate assigned to Deacero. See Second Remand Results at 2–8. For the following
reasons, Commerce’s Second Remand Results are sustained.
BACKGROUND
The court assumes familiarity with the facts of this case as set out in the prior
two opinions, and here recounts only the facts relevant to the court’s review of the
Second Remand Results. 	See Deacero I, 42 CIT at __, 353 F. Supp. 3d at 1306;
Deacero II, 43 CIT at __, 393 F. Supp. 3d at 1282–83. 	Commerce initiated an
administrative review covering subject merchandise entered during the period of
October 1, 2014, through September 30, 2015, with respondent Deacero S.A.P.I de
C.V. (“Deacero” or “respondent”) listed as one of the companies to be reviewed. 	See
Initiation of Antidumping and Countervailing Duty Admin. Reviews, 80 Fed. Reg.
75,657, 75,658 (Dep’t Commerce Dec. 3, 2015). Commerce, pursuant to section 776 of
the Tariff Act of 1930, as amended, 19 U.S.C. § 1677e, 3 used total AFA 	to calculate
3 Further citations to the Tariff Act of 1930, as amended, are to the relevant
(footnote continued)
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PUBLIC VERSION
Deacero’s final dumping margin after determining that Deacero impeded its review
process. See Deacero II, 43 CIT at __, 393 F. Supp. 3d at 1282; see also Final Decision
Memo. at 4–8, 12. Commerce chose the highest margin alleged in the 2001 petition—
40.52%—as Deacero’s final weighted-average dumping margin. 	See Final Decision
Memo. at 8–9 & n.33; Final Results, 82 Fed. Reg. at 23,190.
The court sustained Commerce’s total-AFA determination, see Deacero I, 42
CIT at __, 353 F. Supp. 3d at 1307–12, 1314, but twice remanded for further
explanation or reconsideration Commerce’s decision to rely on the 40.52% rate due to
the lack of record information that would corroborate that rate, as required by 19
U.S.C. § 1677e(c)(1) and 19 C.F.R. § 351.308(d) (2015). 4 See id. at __, 353 F. Supp. 3d
at 1312–15; Deacero II, 43 CIT at __, 393 F. Supp. 3d at 1285–87. In both instances,
the 	record 	documents 	upon 	which 	Commerce 	relied 	contained 	conclusory
pronouncements that did not demonstrate the probative value of the 40.52% petition
provisions of Title 19 of the U.S. Code, 2012 edition. Citations to 19 U.S.C. § 1677e,
however, are to the unofficial U.S. Code Annotated 2018 edition, which reflects the
amendments made to 19 U.S.C. § 1677e by the Trade Preferences Extension Act of
2015 (“TPEA”). See Trade Preferences Extension Act of 2015, Pub. L. No. 114-27, 129
Stat. 362 (2015).
4 Further citations to Title 19 of the Code of Federal Regulations are to the 2015
edition.
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PUBLIC VERSION
rate. See Deacero I, 42 CIT at __, 353 F. Supp. 3d at 1313–15; Deacero II, 43 CIT at
__, 393 F. Supp. 3d at 1283–87.5
Commerce filed the Second Remand Results on October 30, 2019. On remand,
Commerce placed on the record the following pre-initiation documents:
(1) the business proprietary and public versions of Volume II of the
Petition; (2) the business proprietary and public versions of three
supplements to the Petition that the petitioner placed on the record of
the underlying investigation prior to the Wire Rod from Mexico LTFV
Initiation; 	(3) 	the 	business 	proprietary 	and 	public 	versions 	of 	a
memorandum to the file filed prior to the Wire Rod from Mexico LTFV
Initiation in which Commerce interviewed the market researcher who
obtained the home market price quotes contained in the Petition; and
(4) an ex parte memorandum to the file in which Commerce officials
discussed questions regarding affidavits and foreign market research
contained 	in 	petition 	supplemental 	questionnaires 	issued 	to 	the
petitioner.
Second Remand Results at 2, 4–8 (footnotes omitted and italics removed); New
Factual Info. Memo. (“NFI Memo.”), CRRR 1, bar code 3886959-01 (Sept. 4, 2019),
NFI Memo. at Attach. 1.A, CRRR 2, bar code 3886959-02 (Aug. 31, 2001) (“Petition”);
NFI Memo. at Attachs. 1.B, 1.C pt.1–pt. 2, and 1.D, CRRRs 3–6, bar codes 3886959-
03–06 (Sept. 4, 2019) (“Sept. 6 th Supplemental Filing,” “Sept. 10th Supplemental
Filing,” and “Sept. 17th Supplemental Filing,” respectively); NFI Memo. at Attach.
1.E, CRRR 7, bar code 3886959-07 (“Telephone Memo.”); NFI Memo. at Attach. 1.F,
5 In Deacero I, Commerce relied on conclusions contained in a Federal Register notice,
see Final Decision Memo. at 8–9 (citing ADD Order), and in Deacero II, Commerce
supplemented the administrative record with, and relied on, conclusions stated in the
Initiation Notice and Initiation Checklist. 	See Remand Results at 6–7; Initiation
Notice; Initiation Checklist.
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PUBLIC VERSION
CRRR 8, bar code 3886959-08 (“Sept. 17 th Ex Parte Memo.”).6 	Further, Commerce
placed 	on 	the 	record 	“Deacero’s 	margin 	calculations 	from 	the 	2013-2014
[antidumping] administrative review,” Second Remand Results. at 7 (citing NFI
Memo. at Attachs. 2.A.–2.L, CRRRs 9–23, bar codes 3886959-09–23 (Sept. 23, 2019);
Amendment to NFI Memo. at Attachs. 2.H., 2.K.1, CRRRs 25, 26, bar codes 3891062-
02–03)), “as well as a summary table that lists the individual margin transactions
calculated for Deacero in the 2013-2014 administrative review.” Id. at 2, 6 (citing NFI
Memo. at Attach. 2L, CRRR 23, bar code 3886959-23 (Sept. 4, 2019)).
Deacero and Deacero USA, Inc. (collectively, “Plaintiffs”) argue that Commerce
failed to satisfy the statutory corroboration requirement because its analysis of the
record documents fails to demonstrate the probative value of the 40.52% rate. 	See
6 On September 5, 2017, Defendant filed indices to the public and confidential
administrative records underlying Commerce’s final determination. 	These indices
are located on the docket at ECF Nos. 21-2–3. 	On April 1, 2019, Defendant filed
indices to the public and confidential administrative records underlying Commerce’s
remand redetermination. These indices are located on the docket at ECF Nos. 61-2–
3. 	On November 13, 2019, Defendant filed indices to the public and confidential
administrative records underlying Commerce’s second remand redetermination.
These indices are located on the docket at ECF Nos. 73-2–3. 	All references to
documents from the initial administrative record are identified by the numbers
assigned by Commerce in the September 5 th indices, see ECF No. 21, and preceded
by “PD” or “CD” to denote the public or confidential documents. All references to the
administrative record for the first remand determination are identified by the
numbers assigned in the April 1st indices, see ECF No. 61, and preceded by “PRR” or
“CRR” to denote remand public or confidential documents. 	All references to the
administrative record for the second remand determination are identified by the
numbers assigned in the November 13th indices, see ECF No. 73, and preceded by
"PRRR" or "CRRR" to denote remand public or confidential documents.
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Pls. [Deacero] and Deacero USA, Inc.’s Cmts. Opp’n Remand Redetermination
Confidential Version, Dec. 13, 2019, ECF No. 77 (“Pls.’ Br.”). 	Plaintiffs also assert
that further remand would be futile and request the court to instruct Commerce to
select an “AFA rate from average weighted margins calculated for Deacero or another
respondent in a prior segment.” 	See Pls.’ Br. at 1–2, 15–17. 	Defendant-Intervenor
Nucor Corporation (“Nucor”) filed comments supporting the agency’s position. 	See
Def.-Intervenor [Nucor’s] Cmts. [Second Remand Results] Revised Confidential
Version at 6–15, Dec. 13, 2019, ECF No. 80 (“Nucor’s Br.”).
JURSIDCTION AND STANDARD OF REVIEW
The Court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. 	§ 	1581(c) 	(2012). 	Commerce’s 	antidumping 	determinations 	must 	be 	in
accordance 	with 	law 	and 	supported 	by 	substantial 	evidence. 	19 	U.S.C.
§ 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are
also reviewed ‘for compliance with the court’s remand order.’” Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255, 1259 (2014)
(quoting Nakornthai Strip Mill Public Co. v. United States, 32 CIT 1272, 1274, 587
F. Supp. 2d 1303, 1306 (2008)).
DISCUSSION
Deacero argues that Commerce has failed to corroborate the petition rate with
independent sources. 	See Pls.’ Br. at 1–2, 7–13. 	Defendant and Defendant-
Intervenor counter that the pre-initiation documents, as well as documents used to
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calculate transaction specific margins in the 2013-2014 review, suffice to corroborate
the petition rate. See Def.’s Resp. Cmts. [Second Remand Results] at 5–6, 9–20, Jan.
31, 2020, ECF No. 82; Nucor’s Br. at 6–14. 	For the following reasons, Commerce’s
determination in the Second Remand Results complies with the court’s remand order,
is supported by substantial evidence, and is sustained.
When Commerce relies on secondary information not obtained in the course of
an investigation or review, such as allegations in a petition, Commerce must, to the
extent 	practicable, 	corroborate7 	that 	information 	from 	independent 	sources
reasonably at its disposal.8 19 U.S.C. § 1677e(c)(1); see also Uruguay Rounds
7 When corroborating an AFA rate, Commerce need not demonstrate that the AFA
rate is reflective of an alleged commercial reality. 	See 19 U.S.C. § 1677e(d)(3); see
also Özdemir Boru San. ve. Tic. Ltd. Sti. v. United States, 41 CIT __, 273 F. Supp. 3d
1225, 1247–48 (2017).
8 The court bases its review of Commerce’s corroboration upon the record of the
proceeding, which consists of
(i) a copy of all information presented to or obtained by the Secretary,
the administering authority, or the Commission during the course of the
administrative 	proceeding, 	including 	all 	governmental 	memoranda
pertaining to the case and the record of ex parte meetings required to be
kept by section 1677f(a)(3) of this title; and
(ii) a copy of the determination, all transcripts or records of conferences
or hearings, and all notices published in the Federal Register.
19 U.S.C. § 1516a(b)(2)(A)(i)–(ii). Commerce’s regulations require it to maintain “the
official record of each segment of the proceeding[ ]” that will form the record reviewed
by this Court. 19 C.F.R. § 351.104(a)(1). The official record will contain,
all factual information, written argument, or other material developed
(footnote continued)
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Agreement Act, Statement of Administrative Action, H.R. Doc. No. 103-465, vol. 1, at
870 	(1994), 	reprinted 	in 	1994 	U.S.C.C.A.N. 	4040, 	4199 	(“SAA”); 	19 	C.F.R.
§ 351.308(c)(1)(i) (listing, as a source of “[s]econdary information,” information
derived from “[t]he petition”). 	Commerce must, where practicable, corroborate
secondary information because, as in the case of [information derived from] the
petition, such information is “based on unverified allegations[.]” 	SAA at 870, 1994
U.S.C.C.A.N. at 4199. 	Corroboration means establishing that the rate is probative;
more specifically, that is reliable and relevant to the respondent. See Ad Hoc Shrimp
Trade Action Comm. v. United States, 802 F.3d 1339, 1354 (Fed. Cir. 2015).
Secondary information is corroborated with independent sources such as
“published price lists, official import statistics and customs data, and information
obtained from interested parties during the particular investigation or review.” SAA
at 870, 1994 U.S.C.C.A.N. at 4199; see also 19 C.F.R. § 351.308(d). The statute directs
Commerce to corroborate the rate to the extent practicable with independent sources
reasonably at its disposal. 19 U.S.C. § 1677e(c)(1). Moreover, nothing bars Commerce
by, presented to, or obtained by the Secretary during the course of a
proceeding that pertains to the proceeding. . . . [and] government
memoranda 	pertaining 	to 	the 	proceeding, 	memoranda 	of 	ex 	parte
meetings, determinations, notices published in the Federal Register,
and transcripts of hearings. The official record will contain material that
is public, business proprietary, privileged, and classified.
Id.
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from considering evidence proffered by parties with an interest in the outcome of
Commerce’s determination. 	Indeed, the SAA suggests examples such as “published
price lists, official import statistics and customs data, and information obtained from
interested parties during the particular investigation or review.” 	SAA at 870, 1994
U.S.C.C.A.N. at 4199. The statute empowers Commerce to use secondary information
so long as Commerce corroborates it to the extent practicable with independent
sources reasonably at its disposal. A source’s independence does not stem from who
submits it, but rather from who generates it. See KYD, Inc. v. United States, 607 F.
3d 760, 765 (Fed. Cir. 2010) (concluding that import statistics, price quotations, and
affidavits from officials in a third-party company, attached to an antidumping
petition, were independent sources) (“KYD”).
Commerce 	has 	corroborated 	the 	petition 	rate 	with 	independent 	sources
reasonably at its disposal to the extent practicable. See 19 U.S.C. § 1677e(c)(1); SAA
at 870, 1994 U.S.C.C.A.N. at 4199. 	Here, Commerce selects the highest margin
alleged in the petition as Deacero’s AFA rate. 	See Final Decision Memo. at 8
(citations omitted). 	Commerce placed on the record pre-initiation documents upon
which it relies to corroborate the petition rate used in this proceeding. 	See Second
Remand Results at 5. Specifically, in addition to providing business proprietary and
public versions of the Petition, Commerce also placed on the record three supplements
to the Petition. 	See Sept. 6 th Supplemental Filing; Sept. 10th Supplemental Filing;
Sept. 17 th Supplemental Filing. Commerce also submitted a memorandum reflecting
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a telephone interview with the market researcher who obtained the home market
price quotes contained in the Petition, see Telephone Memo., and a memorandum
summarizing an ex parte meeting between Commerce officials and counsel to
petitioners where the parties discussed questions regarding the affidavits and foreign
market research petitioners supplied to support the petition. See Sept. 17th Ex Parte
Memo. All of these documents were generated during Commerce’s process of vetting
the information presented at the pre-initiation stage. See Second Remand Results at
2, 4–8; see also NFI Memo.; Sept. 6 th Supplemental Filing; Sept. 10th Supplemental
Filing; Sept. 17th Supplemental Filing; Telephone Memo.; Sept. 17th Ex Parte Memo.
Although the provenience of the sources implicates the involvement of the
petitioners, petitioners did not generate all of the information in these sources. 	In
response to Commerce’s attempts to test the veracity of the pre-initiation documents,
petitioners submitted the Sept. 6 th Supplemental Filing, which included a declaration
of 	petitioner’s 	foreign 	consultant 	who 	personally 	attested 	to 	having 	obtained
information on prices for sales of carbon steel wire rod in Mexico by speaking to
various industry sources, see Sept. 6th Supplemental Filing at Ex. 1. Although it was
later confirmed that the foreign consultant’s research was commissioned by the
petitioners, see Telephone Memo. at 2, the consultant compiled the information by
speaking to “knowledgeable industry sources.” Sept. 6th Supplemental Filing at Ex.
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1. 9 	Petitioners compiled the Sept. 10th Supplemental Filing by drafting further
responses to Commerce’s questions regarding the petition, and attaching an array of
original and revised documents to support those responses, see generally Sept. 10th
Supplemental Filing.10 	Petitioners compiled the Sept. 17th Supplemental Filing by
drafting responses intended to supplement deficiencies in the Sept. 10 th filing, and it
contains supporting documents including a revised affidavit, publicly available
information and data on scrap prices, as well as other revised documents, see
generally Sept. 17th Supplemental Filing.
The record also contains documents not generated by the petitioners. 	First,
Commerce generated the Telephone Memo. to memorialize a telephone conversation
during which Commerce sought to “confirm the accuracy and completeness of the
information provided in the declarations” of petitioners’ market research consultant,
Telephone Memo. at 1, see also id. at 1–3. Second, Commerce generated the Ex Parte
Memo. which memorializes a meeting between petitioners and agency officials during
which both parties discussed questions regarding the supplied affidavits and foreign
market research contained in supplemental questionnaires issued to the petitioner.
9 The names and sources of the information in Exhibit 1 to the Sept. 6th Supplemental
Filing are redacted as business proprietary information. See Sept. 6th Supplemental
Filing.
10 The attachments include a document listing Import Charges from the Bureau of
Census, Sept. 10th Supplemental Filing at Attach. 1, Revised Petition Exhibits, id. at
Attach. 2, a list of ports and harbor maintenance fees, id. at Attach. 3, and Iron &
Steel Works of the World – 13th Edition. Id. at Attach. 4.
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Commerce also placed on the record information obtained from third-party
sources that petitioners supplied to Commerce when verifying the petition rate. 	See
Remand Results at 15. 	For example, attached to the Petition is information on
lending 	rates 	in 	Mexico 	derived 	from 	the 	International 	Monetary 	Fund’s
International Financial Statistics, see Petition at Ex. 1, foreign exchange rates, see
id. at Ex. 2, data from the International Labor Organization regarding average wages
in Mexico, see id. at Ex. 8, public information from the International Energy Agency
on energy and gas costs in Mexico, 	see id. Exs. 9–10, as well as income statements
from Altos Hornos De Mexico S.A. De C.V., see id. at Ex. 12.
Finally, Commerce placed on the record numerous confidential documents
used to calculate Deacero’s transaction specific margins in the 2013–2014 review.
Second Remand Results at 7–8 (citing NFI Memo. at Attachs. 2.A–2.L). Commerce
explains that these calculations corroborate the rate because there were instances in
the 2013–2014 review where transaction specific margins came close to or exceeded
the petition rate. Id.
Deacero argues that neither the pricing data on the record nor the affidavits
are 	independent 	sources 	because 	they 	originate 	from 	sources 	associated 	with
petitioners and were submitted to support petitioner’s allegations—not to present
unbiased facts. 	See Pls.’ Br. at 7–9; Resp. Pls. [Deacero] & Deacero USA, Inc. to
Cmts. of Def-Intervenor [Nucor] on [Second Remand Results] Confidential Version at
4, Jan. 31, 2020, ECF No. 84 (“Pls.’ Reply Br.”). Further, Deacero distinguishes KYD,
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607 F.3d at 765, invoked by Commerce, stating that in KYD the affidavits came from
third-party officials, unlike the affidavits in this instance, which were supplied by
entities with ties to the petitioners. See Pls.’ Reply Br. at 3–4.11
It is undeniable that the petitioners had a hand in generating the relevant
sources here even where third party information is incorporated. 	Nonetheless,
Commerce 	attempts 	to 	corroborate 	information 	to 	the 	extent 	practicable 	with
information independent of the petitioners and seeks to further corroborate the rate
using transaction-specific data from the prior review. Deacero does not point to any
other means, reasonably at Commerce’s disposal, to which Commerce could turn to
further corroborate the rate. 	Deacero would have Commerce choose another rate,
Pls.’ Br. at 2, 15–17, but the statute does not dictate that Commerce must choose
another rate if Commerce determines the rate is reliable and relevant to the
respondent using independent sources reasonably at its disposal to the extent
practicable and if that determination is reasonable based upon the record.
Under the circumstances, even to the extent that Commerce relies on non-
independent sources to corroborate the rate, Commerce explains how its efforts at the
petition stage demonstrate that the rate is probative and reliable; that by looking at
that information in this review as well as transaction specific data from the 2013–
2014 review, it has corroborated the rate to the extent practicable. Commerce tested
11 The affidavits come from
and market researchers hired by the petitioners.
[[
]]
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the allegations raised in the petition by, for example, requiring “petitioner to provide
an affidavit from the market researcher who obtained the Mexican price quote,” as
well as to clarify affidavits “submitted in connection with the U.S. price quote” used
to calculate the petition rate. 	Second Remand Results at 6–7 (citing Sept. 6th
Supplemental Filing at Ex. 1; Sept. 10th Supplemental Filing at 2.) 	In response,
petitioners furnished affidavits from individuals who personally attest to supplying
the data petitioners relied on, as well as having the requisite knowledge to provide
that data. See Sept. 6th Supplemental Filing at Ex. 1; Sept. 17th Supplemental Filing
at Attach. 1. 12 Moreover, Commerce “conducted a telephone interview with the
Mexican 	market 	researcher 	[and] 	obtained 	information 	on 	the 	individual’s
credentials, background, experience in market research, and information collecting
methods, as well as a description of the home market prices the individual obtained.”
Id. at 7 (citing Telephone Memo. at 1–2). 	These documents have all been placed on
the record, see Second Remand Results at 1–2, and demonstrate, to the extent
practicable, that the petition rate was tested by Commerce and is probative despite
12 These individuals include 	a U.S.
producer of carbon steel wire rod who received verbal information directly from
as well as a market researcher, whose name and
credentials are redacted, who attests to having obtained information about prices for
sales of carbon steel wire rod in Mexico. See Sept. 17th Supplemental Filing at Attach.
1; Sept. 6th Supplemental Filing at Ex. 1; see also Second Remand Results at 6–7.
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the fact that they originated from parties associated with the petitioner. 	See Second
Remand Results at 14–17.
Further Commerce uses sources reasonably at its disposal during this review
to further demonstrate the reliability of the rate, namely the transaction specific
margins from the 2013–2014 review. 	Second Remand Results at 7–8 (citing NFI
Memo. at Attachs. 2.A–2.L). The fact that the petition rate falls within the range of
margins calculated supports Commerce’s determination that the rate has probative
value. 	Deacero argues the rate in this sampling is aberrational, yet Deacero offers
no support for this characterization. 	Second Remand Results at 18.13 Deacero does
not 	explain 	why 	Commerce’s 	conclusions 	in 	light 	of 	this 	record 	evidence 	are
unreasonable nor does it offer any record evidence to contradict its probative value.
13 Plaintiffs argue that “the weighted-averaged margin applied to Deacero during the
2013–2014 review was merely 1.13% and the fact that the 	transactions
highlighted by Commerce comprise merely 	of Deacero’s U.S. sales during
that review, [indicating] that the 	transactions are aberrational.” Pls.’ Br. at
11 (citing to Deacero’s Remand Rebuttal Factual Info. Submission at Ex. 1, PRR 3,
bar code 3793256-01 (Feb. 13, 2019)). Plaintiffs argue that past decisions uphold in
some instances, and reject in others, the practice of corroborating AFA rates using
transaction specific margins. 	See Pls.’ Reply Br. at 4–5 (comparing Papierfabrick
August Koehler S.E. v. United States, 38 CIT __, 7 F. Supp. 3d 1304, 1316 (2014),
aff’d, 843 F.3d 1373 (“Papierfabrick”) with Dongguan Sunrise Furniture Co. v. United
States, 37 CIT __, 931 F. Supp. 2d 1346, 1356 (2013)). 	However, as Plaintiffs
acknowledge, these cases were decided prior to passage of the TPEA, and 19 U.S.C. §
1677e no longer requires Commerce to link the selected AFA rate to the respondent’s
commercial reality. Id. at 5; see also 19 U.S.C. § 1677e(d)(2)(B). Further, even under
the commercial reality framework, in Papierfabrick, the court upheld Commerce’s
decision to corroborate a petition rate based on only one transaction specific margin
that was above that rate. See Papierfabrick, 38 CIT at __, 7 F. Supp. 3d. at 1317–18.
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In this case, Commerce’s resort to a petition rate is reasonable. 	Deacero
contends that the pre-initiation documents Commerce placed on the record were
considered for purposes of assessing the petitioners’ allegations at initiation, not for
corroborating the petition rate for use as an AFA rate. See Pls.’ Br. at 8. However,
Commerce explains that “the same independently-sourced data and the results of
analysis now underpin [its] corroboration of the reliability and probative value of the
petition data for use as the AFA rate.” Second Remand Results at 16; see also id. at
7–8 (explaining how Deacero’s transaction specific margins further demonstrate the
petition rate’s probative value). Simply because Commerce relies on these documents
to assess allegations raised in the petition does not preclude reliance on the same
documents for purposes of corroboration, provided that the agency explains how the
documents demonstrate that the rate is reliable and relevant. Moreover, Commerce
in this case has done all that it could do to assess the probity of the rate. 	Having
supplemented the record with information petitioners supplied to Commerce when
verifying 	the 	petition 	rate, 	Commerce 	announced 	that 	it 	would 	be 	“allowing
interested parties to place rebuttal factual information on the record.” NFI Memo. at
1; see also Second Remand Results at 5. 	The interested parties have not placed on
the record any evidence challenging the probative value of the documents Commerce
has placed on the record. 	Finally, Deacero protests Commerce’s reliance on the
petition rate as an alleged deviation from its ordinary practice of relying on the
highest margin calculated for any respondent during the original investigation or any
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subsequent review. 	See Pls.’ Br. at 13–15 (citing PSC VSMPO-AVISMA Corp. v.
United States, 35 CIT 283, 290–91, 755 F. Supp. 2d 1330, 1338–40 (2011)). Deacero
claims, without authority, that the TPEA codified this practice by establishing a
presumption of validity for AFA rates based on margins from previous reviews, and
that 	removing 	the 	corroboration 	requirement 	for 	such 	margins 	demonstrates
Congressional support for Commerce’s practice. 	Id. at 14. 	Deacero’s logic cannot
withstand scrutiny. Simply because Congress established a presumptive validity for
AFA rates based on margins from previous reviews does not preclude the use of other
corroborated rates. 	Had Congress intended to limit Commerce’s consideration to
margins from previous reviews it could have done so. Commerce’s determination in
its Second Remand Results is reasonable on this record and comports with the court’s
order.
CONCLUSION
For the foregoing reasons, the Second Remand Results comply with the court’s
order in Deacero II, are in accordance with law and supported by substantial
evidence, and are therefore sustained. Judgment will enter accordingly.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: 	April 13, 2020
New York, New York
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