Venus Wire Industries Pvt. Ltd. et al v. United States

Slip Op. 20-118
UNITED STATES COURT OF INTERNATIONAL TRADE
VENUS WIRE INDUSTRIES PVT. LTD.,
ET AL.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
CARPENTER TECHNOLOGY
CORPORATION, ET AL.,
Defendant-Intervenors.
Before: Mark A. Barnett, Judge
Court No. 18-00113
PUBLIC VERSION
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s final results in the changed
circumstances review of the antidumping duty order on stainless steel bar from India, as
amended by the results of redetermination pursuant to court remand.]
Dated: August 14, 2020
Eric C. Emerson and St. Lutheran M. Tillman, Steptoe & Johnson LLP, of Washington,
DC, for Plaintiffs.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant. With her on the brief were
Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Tara
Hogan, Assistant Director. Of counsel on the brief was Emma T. Hunter, Attorney,
Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.
Grace W. Kim and Laurence J. Lasoff, Kelley Drye & Warren LLP, of Washington, DC,
for Defendant-Intervenors.
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Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or “the agency”) redetermination upon court-ordered
remand. See Results of Redetermination Pursuant to Court Remand (“Remand
Results”), ECF No. 61-1. Plaintiffs, Venus Wire Industries Pvt. Ltd. and its affiliates
Precision Metals, Sieves Manufacturers (India) Pvt. Ltd., and Hindustan Inox Ltd.
(collectively, “Venus”), commenced this action challenging Commerce’s final results in
the changed circumstances review of the antidumping duty order on stainless steel bar
from India. See Compl., ECF No. 9; Stainless Steel Bar From India, 83 Fed. Reg.
17,529 (Dep’t Commerce Apr. 20, 2018) (final results of changed circumstances review
and reinstatement of certain companies in the antidumping duty order) (“Final Results”),
ECF No. 20-5, and accompanying Issues and Decision Mem., A-533-810 (Apr. 16,
2018) (“I&D Mem.”), ECF No. 20-6. 1 Venus, an exporter of subject merchandise,
contested Commerce’s determinations (1) that Venus is not the producer of subject
merchandise made from inputs that are covered by the scope of the underlying
antidumping duty order; and (2) to use total facts otherwise available with an adverse
inference (referred to as “total adverse facts available” or “total AFA”) to determine
1 The administrative record associated with the Final Results is divided into a Public
Administrative Record (“PR”), ECF No. 20-2, and a Confidential Administrative Record
(“CR”), ECF Nos. 20-3, 20-4. The administrative record for the Remand Results is
likewise divided. See Public Remand R., ECF No. 62-2; Confidential Remand R., ECF
No, 62-3. Parties submitted joint appendices containing record documents cited in their
Rule 56.2 briefs. See Public J.A. (“PJA”), ECF No. 50; Confidential J.A. (“CJA”), ECF
No. 46; Confidential Joint Submission of R. Documents (“Suppl. CJA”), ECF No. 53.
Because parties did not cite to additional record documents in their respective
comments on the Remand Results, there is no joint appendix on file with respect to the
Remand Results. The court references the confidential version of the relevant record
documents, unless otherwise specified.
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Venus’s rate. [Venus’s] Mem. of P&A in Supp. of their Mot. For J. on the Agency R.
(“Pls.’ Mem.”), ECF No. 33. In a previous opinion, the court remanded Commerce’s
determination that Venus is not the producer of subject merchandise manufactured from
in-scope inputs and deferred Venus’s challenge to Commerce’s use of total AFA;
familiarity with that opinion is presumed. See generally Venus Wire Indus. Pvt. Ltd. v.
United States (“Venus I”), 43 CIT ___, 424 F. Supp. 3d 1369 (2019).
Commerce has now issued a remand determination in which it provides
additional explanation in support of its conclusion that Venus is not the producer of
certain subject merchandise and made no changes to the Final Results. Remand
Results at 3–11, 14–20. Venus opposes Commerce’s Remand Results. See Pls.’
Comments on the Remand Redetermination (“Pls.’ Opp’n Cmts.”), ECF No. 64.
Defendant United States (“the Government”) and Defendant-Intervenors 2 support
Commerce’s Remand Results. See Def.’s Resp. to Pls.’ Comments on the Remand
Redetermination (“Def.’s Reply Cmts.”), ECF No. 65; Def.-Ints.’ Reply to Pls.’
Comments on the Remand Redetermination (“Def.-Ints.’ Reply Cmts.”), ECF No. 66.
For the reasons discussed herein, the court remands Commerce’s Final Results,
as amended by the Remand Results, for reconsideration of the agency’s determination
to use total AFA consistent with this Opinion.
2 Defendant-Intervenors consist of Carpenter Technology Corporation; Crucible
Industries LLC; Electralloy, a Division of G.O. Carlson, Inc.; North American Stainless;
Outokumpu Stainless Bar, LLC; Universal Stainless & Alloy Products, Inc.; and
Valbruna Slater Stainless, Inc. (collectively, “Defendant-Intervenors” or, when in
reference to the underlying administrative proceeding, “Petitioners”).
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B ACKGROUND
I. 	Prior Proceedings3
Commerce published the antidumping duty order on stainless steel (“SS”) bar
(“SSB” or “SS bar”) from India on February 21, 1995. See Stainless Steel Bar from
Brazil, India and Japan, 60 Fed. Reg. 9,661 (Dep’t Commerce Feb. 21, 1995)
(antidumping duty orders) (“SS Bar Order”). 4 On September 13, 2011, Commerce
conditionally revoked the SS Bar Order with respect to subject merchandise produced
or exported by Venus. See Stainless Steel Bar from India, 76 Fed. Reg. 56,401,
56,402–03 (Dep’t Commerce Sept. 13, 2011) (final results of the antidumping duty
admin. review, and revocation of the order, in part) (“Revocation Finding”). 5 Commerce
3 While familiarity with Venus I is presumed, the court summarizes the background
relevant to the court’s disposition of the issues considered herein.
4 The merchandise covered by the scope of the SS Bar Order consists of
articles of stainless steel in straight lengths that have been either hot-
rolled, forged, turned, cold-drawn, cold-rolled or otherwise cold-finished, or
ground, having a uniform solid cross section along their whole length in
the shape of circles, segments of circles, ovals, rectangles (including
squares), triangles, hexagons, octagons or other convex polygons. SSB
includes cold-finished SSBs that are turned or ground in straight lengths,
whether produced from hot-rolled bar or from straightened and cut rod or
wire, and reinforcing bars that have indentations, ribs, grooves, or other
deformations produced during the rolling process.
SS Bar Order, 60 Fed. Reg. at 9,661.
5 Commerce’s authority to revoke an order is grounded in 19 U.S.C. § 1675. By its
terms, Commerce “may revoke, in whole or in part, . . . an antidumping duty order” upon
completion of a periodic or changed circumstances review. 19 U.S.C. § 1675(d)(1).
Pursuant to the regulation in effect at the time of revocation, Commerce could revoke an
order in part when it finds that (A) an exporter or producer has “sold the merchandise at
not less than normal value for a period of at least three consecutive years”; (B) the
exporter or producer has agreed in writing to immediate reinstatement of the order if
Commerce determines that, subsequent to revocation, the exporter or producer sells
subject merchandise at less than fair value; and (C) continued application of the order is
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subsequently initiated this “changed circumstances” review of Venus on December 16,
2016, in response to Petitioners’ allegations that the company “had resumed selling SS
bar in the United States at less than fair value.” Venus I, 424 F. Supp. 3d at 1372.
In the instant changed circumstances review, Commerce “requested Venus to
describe the materials used in the production of subject merchandise.” Id. Venus
reported using SS wire rod or SS black bar to produce the subject merchandise. Id.
Elsewhere in its questionnaire responses, Venus referred to its input of SS black bar
variously as hot rolled SS rounds, SS rounds, straight rounds, or hot rolled bar. Id. In
response to Commerce’s third supplemental questionnaire, Venus acknowledged that
the input referred to as “SS rounds” is covered by the scope of the SS Bar Order. Id.
Following issuance of the preliminary determination in which Commerce
proposed to reinstate Venus in the SS Bar Order and found that Venus’s unaffiliated
suppliers of SS rounds were the producers of SS bar made using SS rounds,
Commerce requested Venus to obtain cost information from those suppliers. See id. at
1373; Decision Mem. for the Prelim. Results of the Antidumping Duty Changed
Circumstances Review of Stainless Steel Bar from India (Oct. 12, 2017) (“Prelim.
Mem.”) at 1, 5, PR 377, CJA Tab 19. In response, Venus reported its “significant efforts
to obtain the cost of the stainless steel rounds purchased from unaffiliated suppliers
during the [period of review].” Req. for Extension to 4th Suppl. Resp. (Nov. 14, 2017)
(“Venus 4th Suppl. DQR”) at 1, CR 318–19, PR 398, CJA Tab 24. Venus personnel
unnecessary to offset dumping. 19 C.F.R. § 351.222(b)(2)(i) (2011). Commerce
determined that Venus met each of these requirements. Revocation Finding, 76 Fed.
Reg. at 56,403.
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visited several suppliers and sent its suppliers emails “cautioning them of cessation of
future business” if they refused to provide their cost information. Id. at 3; see also id. at
Ex. 1 (documenting Venus’s efforts). 6 “Despite these efforts, only one of Venus’s
suppliers submitted its cost information to Commerce.” Venus I, 424 F. Supp. 3d at
1373; see also Venus 4th Suppl. DQR at 1–2.
For the Final Results, Commerce concluded that Venus was not the producer of
subject merchandise manufactured from SS rounds; 7 reinstated Venus in the SS Bar
Order; and assigned Venus a weighted-average dumping margin of 30.92 percent
based on the use of total AFA. 83 Fed. Reg. at 17,530; I&D Mem. at 11–17; Final
Analysis Mem. at 1–3.
In making its determination, Commerce applied a test for identifying the producer
of the subject merchandise that it first used in its investigation of narrow woven ribbon
with woven selvedge from Taiwan. I&D Mem. at 11 & n.35 (citing Narrow Woven
Ribbons with Woven Selvedge from Taiwan, 75 Fed. Reg. 41,804 (Dep’t Commerce
July 19, 2010) (notice of final determination of sales at less than fair value) (“NWR”),
and accompanying Issues and Decision Mem., A-583-844 (undated) (“NWR Decision
Mem.”) at 48–49, available at https://enforcement.trade.gov/frn/summary/taiwan/2010-
6 Specifically, Venus informed its suppliers that refusal to cooperate would result in
Venus “[[
]].” Venus 4th Suppl.
DQR, Ex. 1 at ECF p. 532; see also id., Ex. 1 at ECF p. 571 (further cautioning “the
cessation of future business”). Venus also offered to cover the cost of preparing and
filing the cost information. Id., Ex. 1 at ECF pp. 534, 552.
7 Commerce found that Venus was the producer of subject merchandise manufactured
from SS wire rod. Final Results Analysis Mem. for [Venus]. (Apr. 16, 2018) (“Final
Analysis Mem.”) at 4, CR 327, PR 424, CJA Tab 32.
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17538-1.pdf (last visited August 14, 2020)). Pursuant to NWR, Commerce considers
“whether raw materials were added, and whether further processing was performed that
changed the physical nature and characteristics of the product.” NWR Decision Mem.
at 48. Here, Commerce concluded that “because Venus’s processing ‘does not affect
three of the six essential physical characteristics’ of the subject merchandise . . . and
does not require the addition of new materials,” Venus was not “the producer of the
subject merchandise.” Venus I, 424 F. Supp. 3d at 1375 (quoting I&D Mem. at 12–13). 8
Commerce rejected Venus’s argument that the agency should instead apply its
substantial transformation test, 9 explaining that “substantial transformation is not the
proper analysis [when] both products at issue [i.e., input and output] fall within the same
class or kind of merchandise.” I&D Mem. at 13.
Regarding Commerce’s use of total AFA, the agency explained that “necessary
information” in the form of cost data from all except one of Venus’s unaffiliated suppliers
was missing from the record. Id. at 16. Commerce further determined that “[Venus]
and its unaffiliated suppliers [] withheld information that [the agency] requested . . . ,
failed to provide the information [] requested by the deadlines for submission of the
information or in the form and manner [] requested . . . , and have significantly impeded
8 The six essential physical characteristics of SS bar are: grade, remelting, shape, type
of finish, type of final finishing operation, and size. I&D Mem. at 12. Of those, Venus’s
processing may affect finish, type of final finishing operation, and size. Id.
9 The factors Commerce considers in its substantial transformation analysis generally
consist of “(1) the class or kind of merchandise; (2) the nature and sophistication of
processing in the country of exportation; (3) the product properties, essential component
of the merchandise, and intended end-use; (4) the cost of production/value added; and
(5) level of investment.” Venus I, 424 F. Supp. 3d at 1378 n.11 (quoting Bell Supply Co.
v. United States, 888 F.3d 1222, 1228–29 (Fed. Cir. 2018)).
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this proceeding.” Id. Commerce also found that Venus “significantly impeded this
proceeding” by failing “to clearly identify that it purchases SS Bar as an input until
directly asked in the third supplemental questionnaire.” Id. For those reasons,
Commerce determined that it was necessary to select from among the facts otherwise
available. Id. Commerce further determined that an adverse inference was appropriate
when selecting from among the facts available. Id. at 16–17.
Commerce reasoned that Venus “failed to act to the best of its ability by failing to
clearly identify that it purchase[d] SS Bar as an input until directly asked in the third
supplemental questionnaire. Id. at 16. Commerce further found that Venus “did not act
to the best of its ability in attempting to obtain its unaffiliated suppliers’ cost data,” id.,
because “it could have done more to induce its suppliers to cooperate,” Final Analysis
Mem. at 3. Commerce explained that Venus “is an experienced company [that] is
seeking to maintain its exclusion from the order” and, thus, “it is reasonable to expect
that, before doing business with these suppliers, [Venus] would ensure that it would
have their full cooperation in any antidumping proceeding with Commerce.” Id.
Commerce faulted Venus for its delay in specifying potential consequences for
noncooperation to its suppliers and for the language Venus used to warn its suppliers
about the possibility of those consequences. Id.10 Commerce opined that its findings
10 Specifically, Commerce faulted Venus for indicating that any [[
]]. Final Analysis Mem. at 3. Because Venus’s warnings
only “[[
]],” Commerce found that the warnings “did not serve as a strong
inducement to cooperate.” Id.
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were consistent with the U.S. Court of Appeals for the Federal Circuit’s (“Federal
Circuit”) opinion in Mueller Comercial de Mexico, S. de R.L. De C.V. v. United States,
753 F.3d 1227, 1233 (Fed. Cir. 2014). I&D Mem. at 16 & n.65 (citation omitted); Final
Analysis Mem. at 3 & n.17 (citation omitted). Commerce selected the rate of 30.92
percent, calculated in a prior administrative review of the SS Bar Order, to use as
Venus’s margin. I&D Mem. at 17 & n.66 (citation omitted). 11
Following oral argument, 12 the court concluded that Commerce had failed to
adequately explain why its “substantial transformation test is irrelevant under the
circumstances presented by this case.” Venus I, 424 F. Supp. 3d at 1380. The court
noted that Commerce has used its substantial transformation test—and, indeed, found
that a substantial transformation has occurred—when there was no change in the class
or kind of merchandise with respect to the input and output products. Id. at 1378 (citing,
inter alia, Issues and Decision Mem. for the Final Determination in the Antidumping
Duty Investigation of [D]iamond [S]awblades and Parts Thereof from the People’s
Republic of China, A-570-900 (May 22, 2006) (“DSBs From China”) at 17–19, available
at https://enforcement.trade.gov/frn/summary/prc/E6-7763-1.pdf (last visited August 14,
11 Commerce explained that subject merchandise that Venus processed using SS bar
purchased from unaffiliated suppliers accounted for [[ 	]] percent of its U.S. sales.
Final Analysis Mem. at 3. In contrast, the remaining [[ 	]] percent of U.S. sales
consisted of SS bar Venus produced from SS wire rod. Id. at 3–4. Commerce rejected
Venus’s suggestion that the agency should calculate a margin for the [[ 	]] of
sales for which Venus was the producer and average that margin with the AFA rate
used for sales in which Venus was not the producer. Id. Commerce considered it
“unreasonable to attempt a ‘plug’ constituting such a [[ 	]]
of [Venus’s] U.S. sales.” Id. at 4.
12 The court held oral argument on September 10, 2019. Docket Entry, ECF No. 56.
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2020) (substantial transformation occurred when diamond cores were attached to
diamond segments to produce finished diamond sawblades notwithstanding that the
upstream and downstream products were within the same class or kind of
merchandise); Ǝ0LFURGLVNVDQG&RDWHG0HGLD7KHUHRI)URP-DSDQ, 54 Fed. Reg.
6,433, 6,434–35 (Dep’t Commerce Feb. 10, 1989) (final determination of sales at less
than fair value) (“0LFURGLVNV)URP-DSDQ”) (processing performed in Canada on coated
media from Japan did not alter the class or kind of merchandise but was sufficiently
significant to render Canada as the country of origin for antidumping purposes)). The
court explained that the substantial transformation test “appears at least facially relevant
to Commerce’s identification of the producer of the subject merchandise” because
“[r]egardless of whether the manufacturing or processing steps occur in country B or are
performed by company B, Commerce’s inquiry is directed at the circumstances under
which an input becomes an output and whether that output should be attributed to
country B or company B.” Id. at 1379.
The court further faulted Commerce for summarily dismissing the relevance of
several scope rulings in which the agency determined that the processing of SS wire
rod into SS bar constituted a substantial transformation, given the “parallels” between
that process and the processing of SS rounds into SS bar. Id. at 1380; see also Scope
Rulings, Suppl. CJA at ECF pp. 7–89. 13 The court declined to address Venus’s
13 The scope determinations submitted in the supplemental confidential joint appendix
include, among others, (1) Final Recommendation Mem.—Scope Ruling Req. by Ishar
Bright Steel Ltd. on Whether Stainless Steel Bar is Subject to the Scope of the
Antidumping and Countervailing Duty Orders on Stainless Steel Wire Rod from Subject
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challenge to the application of the NWR test and Commerce’s use of total AFA to
determine Venus’s rate pending Commerce’s redetermination. Venus I, 424 F. Supp.
3d at 1371, 1376.
II. 	Commerce’s Determination on Remand
On remand, Commerce clarified the tests it applies in different situations.
Commerce explained that it uses its substantial transformation test only when country of
origin is at issue (including anti-circumvention proceedings pursuant to 19 U.S.C.
§ 1677j in which country of origin is also at issue). Remand Results at 3–7, 14–15. In
contrast, Commerce uses its NWR test in order to determine “the producer of subject
merchandise that is made in the subject country from an input product that is the same
FODVVRUNLQG of product as the imported article.” Id. at 3 (emphasis added); see also id.
at 15 (explaining that the NWR test applies when the input and output products are the
same class or kind of merchandise and country of origin is not at issue). When subject
merchandise is manufactured in the subject country from an input product that is not the
Countries (Feb. 7, 2005) (“UAE SSWR Scope Ruling”); (2) Scope Req. from Rodacciai
S.p.A.—Final Scope Ruling Concerning the Stainless Steel Wire Rod from Spain Order
[and] Initiation and Prelim. Scope Ruling Concerning the Stainless Steel Bar from Spain
Order (May 12, 2015) (“Spain Final SSWR Scope Ruling”); and (3) Scope Req. from
Rodacciai S.p.A.—Final Scope Ruling Concerning the Stainless Steel Bar from Spain
Order (July 10, 2015) (“Spain Final SSB Scope Ruling”). Each of those rulings address
the conversion of SS wire rod into SS bar for purposes of determining country of origin
and the applicability of orders covering SS wire rod or SS bar. See UAE SSWR Scope
Ruling at 1; Spain Final SSWR Scope Ruling at 1; Spain Final SSB Scope Ruling at 1.
For ease of reference, the court will refer to these rulings collectively as the
“SSWR/SSB Scope Rulings.”
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same class or kind as the output product, Commerce stated unequivocally that “the
producer is the entity that manufactured the output product.” Id. at 11.
Commerce further explained that the respective criteria encompassed by the
substantial transformation and NWR tests “are specific to the two different types of
questions that they address.” Id. at 3. While a change in the class or kind of
merchandise is not necessarily dispositive in a substantial transformation analysis, the
agency explained, “it is an important factor and, in practice, has largely informed the
ultimate outcome except in unusual situations.” Id. at 7. For that reason, Commerce
stated, the agency’s determinations in the SSWR/SSB Scope Rulings were largely
informed by changes in the class or kind of merchandise. Id. at 5–6, 17–18. 14 Thus,
having explained “why the substantial transformation test is irrelevant under the
circumstances presented by this case,” Commerce “made no changes to the Final
Results.” Id. at 20.
J URISDICTION AND S TANDARD OF REVIEW
The court has jurisdiction pursuant to section 516A(a)(2)(B)(iii) of the Tariff Act of
1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), 15 and 28 U.S.C. § 1581(c).
14 Commerce explained that in “country of origin determinations in which both the input
and output products are within the same class or kind of merchandise,” it almost always
finds that the country of origin of the output product is “the country in which the input
product was produced.” Remand Results at 7. According to Commerce, the agency’s
respective determinations in DSBs From China and 0LFURGLVNVFrom Japan are two
exceptions to this trend. Id. at 7 & n.25, 9–10.
15 All further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.
Code, and all references to the U.S. Code are to the 2018 edition, unless otherwise
stated.
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The court will uphold an agency determination that is supported by substantial
evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “The
results of a redetermination pursuant to court remand are also reviewed for compliance
with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___,
___, 273 F. Supp. 3d 1314, 1317 (2017).
The two-step framework provided in Chevron, U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842–45 (1984), guides judicial review of
Commerce’s interpretation and implementation of the antidumping and countervailing
duty statutes. See Apex Frozen Foods Private Ltd. v. United States, 862 F.3d 1337,
1344 (Fed. Cir. 2017); Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372,
1379–82 (Fed. Cir. 2001) (affording Chevron deference to agency methodology in
furtherance of its statutory interpretations). First, the court must determine “whether
Congress has directly spoken to the precise question at issue.” Apex Frozen Foods,
862 F.3d at 1344 (quoting Chevron, 467 U.S. at 842). If Congress’s intent is clear, “that
is the end of the matter,” and the court “must give effect to the unambiguously
expressed intent of Congress.” Id. (quoting Chevron, 467 U.S. at 842–43). However, “if
the statute is silent or ambiguous,” the court must determine whether the agency's
action “is based on a permissible construction of the statute.” Id. (quoting Chevron, 467
U.S. at 843).
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DISCUSSION
I. 	Commerce’s Determination that Venus is Not the Producer of Subject
Merchandise Made from SS Bar
A. Parties’ Contentions
Venus contends that, in the Remand Results, Commerce again relied on the
absence of a class or kind demarcation to reject the use of the substantial
transformation test, Pls.’ Opp’n Cmts. at 3, 6, 7, and failed to address the instances in
which Commerce “used a substantial transformation test” when “the input and output
products are within the same class or kind [of merchandise],” id. at 4. Venus further
rejects Commerce’s characterization of the basis for its decisions in the SSWR/SSB
Scope Rulings. Id. at 8–10. 16
The Government contends that Commerce complied with the court’s order to
explain why it utilized the NWR test instead of the substantial transformation test. Def.’s
16 Venus argues that Commerce’s assertion that it uses the substantial transformation
test when country of origin is at issue constitutes “impermissible post hoc
rationalization” because “Commerce did not identify where in its Final Results it had
relied upon a country of origin distinction to reject the substantial transformation test.”
Pls.’ Opp’n Cmts. at 3–4. According to Venus, the court previously “concluded that
Commerce’s reliance on the ‘country of origin’ explanation constituted an in
impermissible post hoc rationalization.” Id. at 3 & n.9 (citing Venus I, 424 F. Supp. 3d at
1379 n.12). Venus misconstrues the court’s opinion. For its Final Results, Commerce
relied on the absence of class or kind distinctions to reject the substantial test, I&D
Mem. at 13, whereas the Government (i.e., the U.S. Department of Justice, which
represents Commerce in this case) took the position in litigation that the substantial
transformation test did not apply when country of origin was not at issue, Confidential
Def.’s Resp. to Pls.’ Mots. For J. Upon the Agency R. (“Def.’s Resp.”) at 17, ECF No.
39. Thus, the court characterized the Government’s—not Commerce’s—argument as
post hoc. Venus I, 424 F. Supp. 3d at 1379 n.12 (citing %XUOLQJWRQ7UXFN/LQHV,QFY
United States, 371 U.S. 156, 168–69 (1962)). In the Remand Results, Commerce
explained that its substantial transformation test is limited to country of origin
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Reply Cmts. at 6–8; see also id. at 9–11 (contending further that Commerce adequately
addressed agency rulings applying the substantial transformation test when there was
no change in the class or kind of merchandise because, in those rulings, country of
origin was at issue). The Government also contends that Venus failed to support its
contention that Commerce’s analysis in the SSWR/SSB Scope Rulings turned on the
degree of processing and not the change in class or kind of merchandise. Id. at 8–9;
see also Def.-Ints.’ Reply Cmts. at 2–8 (advancing similar arguments).
B. Commerce Permissibly Used the NWR Test to Determine the Producer
of the Subject Merchandise
Commerce’s task on remand was to further “address[] why the substantial
transformation test is irrelevant under the circumstances presented by this case.”
Venus I, 424 F. Supp. 3d at 1380. Commerce responded by clarifying when certain
analytical tests are utilized. See Remand Results at 3–11. Commerce explained that
its “practice” is to use the substantial transformation test “only” when country of origin is
at issue. Id. at 14. Indeed, Commerce has used a substantial transformation analysis
in the context of country of origin determinations since at least 1949, see Foreign Trade
Statistics: Country of Origin for Statistical Purposes, 14 Fed. Reg. 6,446 (Dep’t
Commerce Oct. 21, 1949) (proposed rules), and in antidumping proceedings specifically
since at least 1980, see Calcium Pantothenate From Japan, 45 Fed. Reg. 59,933,
determinations. Remand Results at 3–7, 14–15. Accordingly, Commerce’s explanation
is not a post hoc rationalization. See, e.g., Fengchi Imp. & Exp. Co., Ltd. of Haicheng
City v. United States, 39 CIT ___, ___, 98 F. Supp. 3d 1309, 1315 (2015) (“The remand
proceeding is an administrative proceeding, meaning that Commerce’s comments are
not the post hoc rationalization of its counsel.”).
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59,934 (Dep’t Commerce Sept. 11, 1980) (results of admin. review of antidumping
finding) (finding merchandise transshipped through an intermediate country subject to
antidumping duties “unless the merchandise has undergone substantial transformation
or reprocessing which results in a product with a new character or use”). In this context,
Commerce uses its substantial transformation analysis to determine whether a product
originates in a country covered by an antidumping duty order and is, thus, within the
“class or kind of foreign merchandise” subject to antidumping duties pursuant to 19
U.S.C. § 1673(1). E.I. Du Pont de Nemours & Co. v. United States, 22 CIT 370, 373, 8
F. Supp. 2d 854, 858 (1998). Venus has not pointed to any Commerce determination
where the agency has used its substantial transformation analysis for any other
purpose.
In contrast, the NWR test may guide Commerce’s identification of “the producer
of the subject merchandise when in-scope inputs are used to manufacture subject
merchandise [in the subject country] for purposes of 19 U.S.C §§ 1677b and 1677(28).”
Venus I, 424 F. Supp. 3d at 1377. 17 Venus’s insistence that Commerce declined to use
17 In Venus I, the court explained the relevance of those provisions to Commerce’s
margin calculations:
An antidumping duty is the amount by which the normal value of a
product—generally, its price in the exporting country—exceeds the export
price, as adjusted. 19 U.S.C. § 1673; see also id. § 1677b(a)(1)(B)(i)
(defining normal value). In certain situations, Commerce calculates
normal value using the constructed value of the merchandise. Id.
§ 1677b(a)(4).
. . . .
To ascertain constructed value, Commerce typically requires information
from both the producer and the exporter of the subject merchandise. See
id. § 1677(28); Uruguay Round Agreements Act, Statement of
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the substantial transformation test because its input and output products (i.e., SS
rounds and SS bar) are in the same class or kind of merchandise is incorrect. See,
e.g., Pls.’ Opp’n Cmts. at 3. Rather, because country of origin was not at issue, the
absence of a class or kind demarcation led Commerce to use the NWR test to identify
the producer of the subject merchandise; but when such demarcation is present,
Commerce would conclude that the producer of the output is the producer for the
relevant statutory purpose. Remand Results at 15, 16 (referring to a change in class or
kind of merchandise under those circumstances as “dispositive”); cf. Final Analysis
Mem. at 4 (summarily concluding that Venus is the producer of SS bar made from SS
wire rod).
It is well-settled that the court may not “substitute its judgment for that of the
agency regarding which methodology is best suited to [the task at hand],” absent
“demonstrated unreasonableness of the agency’s chosen methodology.” Gold East
Paper (Jiangsu) Co., Ltd. v. United States, 35 CIT ___, ___, 121 F. Supp. 3d 1304,
1312 (2015). This is true even if “the court would justifiably have made a different
choice had the matter been before it de novo.” Universal Camera Corp. v. N.L.R.B.,
340 U.S. 474, 488 (1951); see also Suramerica de Aleaciones Laminadas, C.A. v.
Administrative Action, H.R. Doc. No. 103–316, vol.1, at 835 (1994),
reprinted in 1994 U.S.C.C.A.N. 4040, 4172 (“SAA”) (“[When] different
firms perform the production and selling functions, Commerce may include
the costs, expenses, and profits of each firm in calculating cost of
production and constructed value.”). Consequently, Commerce must
identify the producer of the subject merchandise in order to obtain the
information necessary to calculate the cost of production and constructed
value. I&D Mem. at 11.
424 F. Supp. 3d at 1374 (footnote omitted).
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United States, 966 F.2d 660, 665 (Fed. Cir. 1992) (in matters of statutory interpretation,
the court’s review is limited to determining whether the agency’s construction is
permissible; “[w]hether [the court] would come to the same conclusion, were [it] to
analyze the statute anew, is not the issue”).
To that end, Venus does not argue that the NWR test is inherently unreasonable;
rather, Venus suggests that it produced an unreasonable result that is inconsistent with
Commerce’s determinations in the SSWR/SSB Scope Rulings. See Pls.’ Opp’n Cmts.
at 8–10. According to Venus, Commerce’s assertion that the SSWR/SSB Scope
Rulings turned on class or kind distinctions represents an effort to avoid engaging in an
analysis of whether the conversion of SS rounds into SS bar constitutes a substantial
transformation. Id. at 8–9.
In the UAE SSWR Scope Ruling, Commerce reasoned that the cold-working
process performed on the SS wire rod changed the physical characteristics Commerce
“considers in determining a class or kind of merchandise,” with the exception of grade.
UAE SSWR Scope Ruling at 12; see also id. (finding that “[t]he production process . . .
transforms the input from one class or kind of merchandise,” SS wire rod, “into another,”
SS bar). Commerce relied on this finding in subsequent scope rulings. See Spain Final
SSWR Scope Ruling at 23–25; Spain Final SSB Scope Ruling at 24–25. Thus,
although Commerce discussed the processing necessary to transform SS wire rod into
SS bar, it did so in the context of examining whether the input and output products were
distinct articles governed by separate orders. See UAE SSWR Scope Ruling at 11–12
(noting that Commerce and the U.S. International Trade Commission “have consistently
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held” that SS bar and SS wire rod “are separate and distinct products[]” and therefore
concluding that the SS wire rod input and SS bar output at issue were “covered by the
scope language of separate [antidumping duty] and [countervailing duty] orders”); Spain
Final SSB Scope Ruling at 25. After concluding that they were distinct products
covered by separate orders, Commerce determined the country of origin of the SS bar
based on where the change in class or kind of merchandise occurred. See Spain Final
SSB Scope Ruling at 25–26 (adhering to prior scope rulings that identified country of
origin based on where the conversion of SS wire rod into SS bar occurred).
Thus, notwithstanding certain factual similarities between the conversion of SS
wire rod into SS bar and the conversion of SS rounds into SS bar, Commerce’s analysis
in the SSWR/SSB Scope Rulings is not directly applicable to this case given the
physical differences between the starting inputs and the inclusion of SS rounds in the
same class or kind of merchandise as SS bar. See Remand Results at 6 & n.20
(explaining that SS wire rod is coiled whereas SS bar (which includes SS rounds) is
formed into straight lengths) (citing UAE SSWR Scope Ruling at 13). In the SSWR/SSB
Scope Rulings, Commerce directed its analysis to whether there was a change in the
class or kind of merchandise because that is a factor in the substantial transformation
test and the input in question there was a distinct class or kind of merchandise from the
output. See supra note 9. Even if Commerce applied its substantial transformation test
here, it would not find such a change in the class or kind of merchandise and would
need to consider the remaining factors. See, e.g., Remand Results at 14. The court
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cannot—and need not—speculate as to the results of that analysis. In sum,
Commerce’s determination is not undermined by the SSWR/SSB Scope Rulings.
The question presented in this case is whether—pursuant to Chevron prong
two—Commerce’s use of the NWR test to identify the producer of the subject
merchandise was a permissible method of carrying out its statutory obligations. See
Apex Frozen Foods, 862 F.3d at 1344; Pesquera Mares Australes, 266 F.3d at 1379–
82. As part of that inquiry, the court directed Commerce to address “why the substantial
transformation test is irrelevant under the circumstances presented by this case.”
Venus I, 424 F. Supp. 3d at 1380. While the court discerns Commerce’s rationale for
selecting the NWR test in this case, Commerce has not fully answered the question
such that it may disregard the substantial transformation test in all instances when
country of origin is not at issue (though different circumstances may require Commerce
to do so). Whether the NWR test or substantial transformation test (or some other
analytical framework) is best suited to the task at hand may depend, at least in part, on
the breadth of the scope of the subject merchandise at issue. 18
18 While Commerce relies on class or kind demarcations (or lack thereof) to guide its
analytical approach when country of origin is not at issue, Remand Results at 14–15,
such demarcations are not carved in stone. Class or kind distinctions derive from
Commerce’s scope language, which, in turn, is derived at least in part from the
underlying petition and the wishes of the petitioner(s). See Duferco Steel, Inc. v. United
States, 296 F.3d 1087, 1096 (Fed. Cir. 2002) (explaining that “[t]he purpose of the
petition is to propose an investigation” into a particular product, and “[a] purpose of the
investigation is to determine what merchandise should be included in the final order,”
i.e., within the scope of that order). A product that is outside of a particular scope may
nevertheless bear substantial similarities to a product that is in-scope. Indeed, a
product regarded as distinct and, therefore, excluded from one or more investigations
may be included within the scope of a subsequent investigation. See Hitachi Metals,
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Although Commerce seeks to distinguish other proceedings, such as DSBs From
China, on the basis that country of origin was at issue, an equally pertinent distinction
may be found in the language of the underlying scope. In that proceeding, the scope of
the antidumping duty order covered, inter alia, “all finished circular sawblades . . . and
parts thereof.” Diamond Sawblades and Parts Thereof From the People’s Republic of
China and the Republic of Korea, 74 Fed. Reg. 57,145, 57,145 (Dep’t Commerce Nov.
4, 2009) (antidumping duty orders) (emphasis added); see also MicrodLVNVFrom Japan,
54 Fed. Reg. at 6,434 (in which the scope of the investigation covered “ƍƍPLFURGLVNV
and coated media thereof”). While it is beyond the purview of this litigation, Commerce
may need to do more to justify its use of the NWR test over the substantial
transformation test to ascertain the producer of the finished product when parts are
sourced from and assembled within the subject country in a case in which the scope
encompasses a finished product “and parts thereof.” In contrast, here, where the scope
is limited to the finished product, Commerce reasonably relied on the NWR test. In
sum, the court will sustain Commerce’s decision, as articulated in the Remand Results,
to use the NWR test in this case. The court now turns to Venus’s remaining challenges
to the Final Results.
Ltd. v. United States, 42 CIT ___, ___, 350 F. Supp. 3d 1325, 1334–39 (2018), aff’d,
949 F.3d 710 (Fed. Cir. 2020). Thus, if Commerce wishes to rely on the significance of
class or kind distinctions, it must ensure a level of discipline in establishing the
parameters of any given class or kind.
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II. 	Venus’s Challenges to Commerce’s Application of the NWR Test
A. Parties’ Contentions
Venus contends that Commerce’s NWR analysis ignored that (1) “the physical
and mechanical properties of a metal product can be drastically altered without adding
new materials, such as through reheating and straightening,” and (2) Venus’s
production processes consume other inputs, such as “power, fuel, labor, lubricants and
grinding wheels.” Pls.’ Mem. at 14; see also Confidential [Venus’s] Reply Br. in Supp. of
their Rule 56.2 Mot. For J. on the Agency R. (“Pls.’ Reply”) at 1–2, ECF No. 44. Venus
further contends that Commerce failed to address adequately Venus’s argument that its
processing changed proportionally more product characteristics than occurred in NWR
because the agency “merely bootstrap[ped] its decision” to the fact that Venus adds no
additional materials. Pls.’ Mem. at 15. 19
The Government and Defendant-Intervenors contend that Commerce’s
determination pursuant to the NWR test is supported by substantial evidence. See
Def.’s Resp. at 15–17; Confidential Def.-Ints.’ Resp. in Opp’n to Pls.’ Mot. for J. on the
Agency R. (“Def.-Ints.’ Resp.”) at 14–16, ECF No. 42. Defendant-Intervenors further
contend that Venus offers no support for its argument that the number of changed
characteristics “[is] determinative with respect to further manufacturing.” Def.-Ints.’
Resp. at 15.
19 Venus also argues that Commerce’s use of the NWR test has not risen to the level of
agency practice and, thus, Commerce was not bound to use it. Pls.’ Mem. at 15.
Assuming that is true, the question presented in this case is whether Commerce
permissibly relied on the NWR test, not whether Commerce had to rely on the NWR
test, and whether the agency’s findings are supported by substantial evidence.
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B. Commerce’s Findings Pursuant to the NWR Test are Supported by
Substantial Evidence
In its preliminary decision memorandum, Commerce detailed its findings with
respect to the application of the NWR test; that is, Commerce considered whether
Venus added new materials and the number of essential physical characteristics altered
by Venus’s processing. Prelim. Mem. at 7. Thereafter, Venus filed a case brief in which
it argued, inter alia, that Commerce’s analysis and findings with respect to the
substantial transformation of SS wire rod into SS bar must inform the agency’s
determination here because its cold working processes are “nearly identical” to those at
issue in the Spain Final SSB Scope Ruling. Admin. Case Br. of Venus Wire Industries
Pvt. Ltd. (Jan. 9, 2018) (“Venus’s Case Br.”) at 7–9, CR 324, PR 407, CJA Tab 25; see
also id. at 8 (summarizing certain changes to the hot rolled input as a result of its cold
finishing operation). As discussed, Commerce disagreed with Venus regarding the
relevance of the SSWR/SSB Scope Rulings. I&D Mem. at 13–14; Remand Results at
5–7.
Before the court, Venus seeks to reframe its argument as one that challenges the
parameters of the NWR test. That is, separate and apart from its arguments regarding
the applicability of the SSWR/SSB Scope Rulings, Venus now argues that Commerce
should have considered changes to “physical and mechanical properties” beyond the
physical characteristics Commerce considered “essential.” See Pls.’ Mem. at 14. As
noted, Venus did not squarely present this argument to the agency. See Venus’s Case
Br. at 7–9. Venus further acknowledged at oral argument that it failed to urge the
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agency to account for the consumption of other inputs in its analysis. See Oral Arg. at
11:22:30–11:23:40 (reflecting the time stamp from the recording).
“[T]he Court of International Trade shall, where appropriate, require the
exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). While exhaustion is not
jurisdictional, Weishan Hongda Aquatic Food Co. v. United States, 917 F.3d 1353,
1363–64 (Fed. Cir. 2019), the statute “indicates a congressional intent that, absent a
strong contrary reason, the [CIT] should insist that parties exhaust their remedies before
the pertinent administrative agencies,” id. at 1362 (quoting Boomerang Tube LLC v.
United States, 856 F.3d 908, 912 (Fed. Cir. 2017)) (alteration original) (emphasis
added). The doctrine of administrative exhaustion generally requires a party to present
“all arguments” in its administrative case brief before raising those issues before this
court. 19 C.F.R. § 351.309(c)–(d); see also Dorbest Ltd v. United States, 604 F.3d
1363, 1375 (Fed. Cir. 2010). This permits the agency to address the issue in the first
instance, prior to judicial review. See Boomerang, 856 F.3d at 912–13.
Because Venus did not present to Commerce these arguments regarding the
relevance of additional metallurgical changes to the SS rounds or the consumption of
other inputs for determining whether Venus is the producer, there is no corresponding
agency decision for the court to review. Rather, Venus essentially requests the court to
reconsider the agency’s decision in light of these additional facts and belated
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arguments, which it cannot do. See Downhole Pipe & Equip., L.P. v. United States, 776
F.3d 1369, 1376–77 (Fed. Cir. 2015). 20
Further, while Venus takes issue with Commerce’s reliance on the absence of
new materials to tip the balance in favor of finding that Venus is not the producer, Pls.’
Mem. at 15, this fact, in conjunction with the fact that three out of six essential physical
characteristics remained unchanged by Venus’s processing, constitutes substantial
evidence supporting Commerce’s determination, see I&D Mem. at 12 & nn.44–45
(citations omitted); Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369,
1374 (Fed. Cir. 2003) (“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”) (quoting Consol. Edison Co.
v. NLRB., 305 U.S. 197, 229 (1938)). While Venus may disagree with Commerce’s
conclusion, “mere disagreement with Commerce’s weighing of the evidence[] . . .
mistakes the function of the court, which is to determine whether the Remand Results
are supported by substantial evidence, . . . not to ‘reweigh the evidence or . . .
20 In its reply, Venus attempts to rebut an argument purportedly made by the
Government that an exporter must change a majority of the essential physical
characteristics for Commerce to find that the exporter is the producer. See Pls.’ Reply
at 3–4. The Government merely observed, however, that “[b]ecause [Venus’s]
processing did not add any materials to the purchased input, it did not alter a majority of
the essential physical characteristics of the input.” Def.’s Resp. at 15. The Government
did not apply a bright line rule requiring changes to a majority of the essential physical
characteristics for the exporter to be considered the producer pursuant to the NWR
test—and, more importantly, neither did Commerce. See I&D Mem. at 13 (“[O]ur
analysis is based on a totality of the circumstances.”). Moreover, Venus’s arguments
that its processing altered a majority of the four essential physical characteristics that
are susceptible to change, and that the two essential physical characteristics that
cannot change “should be less relevant to the [agency’s] analysis,” Pls.’ Reply at 3, are
foreclosed because of Venus’s failure to administratively exhaust these arguments
before Commerce, 28 U.S.C. § 2637(d); 19 C.F.R. § 351.309(c)–(d).
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reconsider questions of fact anew.’” Haixing Jingmei Chemical Products Sales Co. v.
United States, 42 CIT ___, ___, 335 F. Supp. 3d 1330, 1346 (2018) (quoting Downhole
Pipe, 776 F.3d at 1377) (internal citation omitted). Accordingly, Commerce’s
determination that Venus is not the producer of the subject merchandise, and
corresponding determination that Venus’s unaffiliated suppliers of SS rounds are the
producers, is supported by substantial evidence and accords with the law.
III. Commerce’s Use of Total AFA
A. Parties’ Contentions
Venus contends that Commerce erred in applying total AFA because the
company “attempted all reasonable steps to induce its unaffiliated suppliers to provide
[Venus] with the requested cost data.” Pls.’ Mem. at 18. Venus further contends that
Commerce improperly applied the Mueller court’s analysis by failing to make three key
findings, that: (1) Venus “had sufficient control over its unaffiliated suppliers such that
[Venus] could induce their cooperation,” id. at 23; (2) Venus’s unaffiliated suppliers
could “evade a higher [antidumping] margin by using [Venus] as an exporter,” id.; or (3)
use of total AFA to determine Venus’s margin “would directly and adversely affect its
non-cooperating unaffiliated suppliers’ interests,” id. at 23–24. In sum, according to
Venus, Commerce’s determination lacks “any case-specific analysis of the relationships
between [Venus] and its unaffiliated suppliers,” which relationships are marked “by
competition in various markets or constituted a small portion of the suppliers[’] sales
[such] that [Venus] lacked the leverage needed to induce their cooperation.” Id. at 24.
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With respect to the reporting of its inputs, Venus contends that it used
terminology generally accepted in the industry to refer to inputs of SS black bar in its
initial questionnaire responses. Id. at 25. Consequently, Venus contends that it was
not until Commerce’s third supplemental questionnaire that the agency requested
Venus “to identify whether its inputs were subject merchandise,” at which time Venus
responded. Pls.’ Reply at 15.
The Government and Defendant-Intervenors contend that Venus failed to
demonstrate that it lacked leverage over its unaffiliated suppliers. Def.’s Resp. at 25;
Def.-Ints.’ Resp. at 21. According to the Government, Venus “had a mechanism to
induce cooperation” from the suppliers, “namely, the threat of no longer purchasing
inputs from those suppliers unless” they provided the requested cost information, Def.’s
Resp. at 26, and Commerce reasonably determined that Venus’s warnings were
insufficient, id. at 27; see also Def.-Ints.’ Resp. at 21–22. Defendant-Intervenors further
contend that Commerce properly used total AFA in order to prevent Venus “and its
suppliers [from] collud[ing] with each other to evade antidumping duties by selling its
goods through an Indian company with no dumping margin.” Def.-Ints.’ Resp. at 23.
With respect to Venus’s reporting of its inputs, Defendant-Intervenors contend
that Venus obfuscated its purchase of subject raw materials when it used different terms
for the same input and failed to inform Commerce that it purchased subject
merchandise from unaffiliated suppliers. Id. at 23–24 & n.15 (“[I]t is well established
that . . . the burden falls on the interested party to place relevant information within its
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possession on the record.”) (quoting Yama Ribbons and Bows Co. v. United States, 36
CIT 1250, 1254, 865 F. Supp. 2d 1294, 1299 (2012)). 21
B. Legal Framework
When “necessary information is not available on the record,” or an interested
party “withholds information” requested by Commerce,” “fails to provide” requested
information by the submission deadlines, “significantly impedes a proceeding,” or
provides information that cannot be verified pursuant to 19 U.S.C. § 1677m(i),
Commerce “shall ... use the facts otherwise available.” 19 U.S.C. § 1677e(a). 22
Additionally, if Commerce determines that a party “has failed to cooperate by not
acting to the best of its ability to comply with a request for information,” it “may use an
inference that is adverse to the interests of that party in selecting from among the facts
otherwise available.” Id. § 1677e(b). “Compliance with the ‘best of its ability’ standard
is determined by assessing whether a respondent has put forth its maximum effort to
provide Commerce with full and complete answers to all inquiries in an
investigation.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003).
Commerce uses total AFA when it must fill gaps in the record not only in
reference “to the facts pertaining to specific sales or information,” but in reference “to
21 Although the Government asserts that Commerce “reasonably” concluded that an
adverse inference was merited in relation to Venus’s reporting of its inputs, Def.’s Resp.
at 19, it does not present arguments supporting its characterization, id. at 22–28.
22 Commerce’s authority to use the facts otherwise available is subject to 19 U.S.C.
§ 1677m(d). See 19 U.S.C. § 1677e(a). Section 1677m(d) provides the procedures
Commerce must follow when a party files a deficient submission and is not at issue
here. See id. § 1677m(d).
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the facts respecting all of [a respondent’s] production and sales information that the
[agency] concludes is needed for an investigation or review.” Nat’l Nail Corp. v. United
States, 43 CIT ___, ___, 390 F. Supp. 3d 1356, 1357 (2019) (citation omitted). In other
words, Commerce generally uses total adverse facts available when “none of the
reported data is reliable or usable.” Zhejiang DunAn Hetian Metal Co., Ltd. v. United
States, 652 F.3d 1333, 1348 (Fed. Cir. 2011) (citation omitted).
C. Commerce’s Decision to Use Total AFA Will be Remanded for the
Agency’s Reconsideration
As discussed above, when Commerce is missing crucial data (such as the cost
of production data at issue here), it turns to its statutory authority to use the “facts
otherwise available” or “adverse facts available,” as appropriate. 19 U.S.C. § 1677e.
“Subsection 1677e(a) . . . may be used whether or not any party has failed to cooperate
fully with the agency in its inquiry.” Mueller, 753 F.3d at 1232. In contrast, subsection
1677e(b) permits Commerce to make an inference adverse to an interested party when
it “makes the separate determination that [the party] has failed to cooperate by not
acting to the best of its ability.” Id. (quoting Nippon Steel, 337 F.3d at 1381). Here,
Commerce determined that Venus and certain of its unaffiliated suppliers failed to
cooperate to the best of their abilities and used its authority pursuant to subsection
1677e(b) to select an adverse rate. I&D Mem. at 16–17. With respect to Venus,
Commerce offered two rationales for using total AFA: Venus’s failure to cooperate to the
best of its ability in obtaining cost information from its unaffiliated suppliers and Venus’s
failure to identify its inputs of SS rounds until responding to Commerce’s third
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supplemental questionnaire. Id.; Final Analysis Mem. at 3. The court addresses each
rationale, in turn.
1. 	Failure to Obtain Cost Information from Unaffiliated Suppliers
With respect to Venus’s failure to obtain cost information from its unaffiliated
suppliers, Commerce relied on the Federal Circuit’s Mueller decision as the basis for its
finding. I&D Mem. at 16 & n.65 (citing Mueller, 753 F.3d at 1233); Final Analysis Mem.
at 3 & n.17 (citing same). Mueller concerned a cooperating mandatory respondent,
Mueller Comercial de Mexico, S. de R.L. de C.V. (“Mueller”), which exported subject
merchandise purchased from two suppliers, Tuberia Nacional, S.A. de C.V. (“TUNA”)
and Ternium Mexico, S.A. de C.V. (“Ternium”), both of which were also mandatory
respondents. 753 F.3d at 1229. To calculate Mueller’s cost of production, Commerce
requested information from TUNA and Ternium. Id. at 1230. While TUNA reported its
cost information, Ternium did not. Id. Commerce rescinded its review of TUNA owing
to the absence of direct shipments and assigned Ternium a dumping margin based on
AFA of 48.33 percent due to Ternium’s failure to cooperate in the administrative review.
Id. at 1229. In order to calculate Mueller’s margin, Commerce used its authority
pursuant to 19 U.S.C. § 1677e(a) to rely on the facts otherwise available. Id.; see also
Canadian Solar Int’l Ltd. v. United States (“Canadian Solar I”), 43 CIT ___, ___, 378 F.
Supp. 3d 1292, 1316–18 (2019) (discussing Mueller). In selecting from among the facts
otherwise available, Commerce identified the three most heavily discounted sales
transactions between TUNA and Mueller and inferred that all transactions between
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Ternium and Mueller reflected that discount. Mueller, 753 F.3d at 1230. Commerce’s
use of this adverse inference resulted in a higher dumping margin for Mueller. Id.
Commerce supported its use of an adverse inference based, in part, on its
finding that “Mueller could and should have induced Ternium’s cooperation by refusing
to do business with Ternium, and Ternium would not be sufficiently deterred if Mueller
were unaffected by Ternium’s non-cooperation . . . [because] Ternium could otherwise
evade its antidumping rate by funneling its goods through Mueller.” Id. at 1233. 23 The
Federal Circuit held that Commerce may rely on inducement and evasion rationales to
calculate a margin for a cooperating party when “the application of those policies is
reasonable on the particular facts and the predominant interest in accuracy is properly
taken into account.” Id.
With respect to the inducement rationale, the appellate court noted that “Mueller
had an existing relationship with supplier Ternium” and, thus, “could potentially have
refused to do business with Ternium in the future as a tactic to force Ternium to
cooperate.” Id. at 1235. The court cautioned, however, that when a “cooperating entity
has no control over the non-cooperating suppliers, a resulting adverse inference is
potentially unfair to the cooperating party.” Id. (citing SKF USA Inc. v. United
States, 630 F.3d 1365, 1375 (Fed. Cir. 2011)). With respect to the evasion rationale,
the court noted “the possibility that Ternium could evade its own AFA rate of 48.33
23 Commerce also found that “the use of the adverse inference to calculate Ternium's
surrogate production cost actually yielded the most accurate calculation of Mueller's
antidumping rate.” Mueller, 753 F.3d at 1232. The Federal Circuit rejected this
rationale as unsupported by substantial evidence and, thus, remanded the matter to the
agency. Id. at 1232–33.
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percent by exporting its goods through Mueller if Mueller were assigned a favorable
dumping rate.” Id.
Although Mueller addressed Commerce’s authority to use the facts otherwise
available pursuant to subsection 1677e(a), id. at 1230, 24 the appellate court found that
subsection 1677e(a) allowed Commerce to take into account policy considerations
typically reserved to subsection 1677e(b), id. at 1234 (“The statute on its face does not
preclude Commerce from relying on the same considerations under subsection (a) for
an AFA determination as used under subsection (b).”). Accordingly, even though
discussed in connection with subsection 1677e(a), Commerce may adopt Mueller’s
inducement and evasion rationales when acting pursuant to its authority in subsection
1677e(b). Regardless, in this case, Commerce’s decision to use total AFA requires
reconsideration by the agency.
For its conclusion that Venus failed to act to the best of its ability to obtain its
unaffiliated suppliers’ cost information, 25 Commerce relied on its subsidiary finding that
24 Commerce necessarily relied on subsection 1677e(a) because Mueller was a
cooperating respondent. See Mueller, 753 F.3d at 1232. The statute does not permit
Commerce to use “an adverse inference against a cooperative respondent under
subsection 1677e(b).” Canadian Solar I, 378 F. Supp. 3d at 1319; see also 19 U.S.C.
§ 1677e(b)(1)(A) (permitting Commerce to use an inference adverse to the interests of
the party that “failed to cooperate by not acting to the best of its ability to comply with a
request for information”).
25 Commerce’s reliance on Mueller to find that Venus failed to cooperate to the best of
its ability sets this case apart from others where Commerce has faulted a mandatory
respondent’s suppliers for failing to cooperate but otherwise treated the respondent as a
cooperating party. Cf. Canadian Solar Int’l Ltd. v. United States (“Canadian Solar II”),
43 CIT ___, ___, 415 F. Supp. 3d 1326, 1332– 35 & n.13 (2019) (remanding
Commerce’s use of an inference adverse to the interests of a cooperative respondent,
this time pursuant to subsection 1677e(a), as lacking “[t]he accuracy analysis required
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Venus’s emails to its suppliers “did not serve as a strong inducement to cooperate.”
Final Analysis Mem. at 3. 26 However, Commerce’s reliance on Mueller’s observation
that the existence of a buyer-seller relationship means that an exporter could potentially
refuse to do business with its supplier to induce cooperation placed undue emphasis on
Venus’s warnings to its suppliers, thereby truncating the Mueller analysis and leading
the agency to disregard relevant record evidence. Final Analysis Mem. at 3; Mueller,
753 F.3d at 1235. Thus, as discussed below, Commerce’s determination is
unsupported by substantial evidence and not in accordance with the law.
To begin with, Commerce created an arbitrary linguistic line when it measured
Venus’s degree of cooperation based on Venus’s use of a certain word in its emails to
unaffiliated suppliers. See Final Analysis Mem. at 3. 27 While Commerce clearly permits
some equivocation by a respondent in its attempts to induce cooperation, see id., the
by Mueller” and substantial evidence supporting the use of inducement/evasion
rationales); ;LSLQJ2SHFN)RRG&R v. United States, 41 CIT ___, ___, 222 F. Supp. 3d
1141, 1157 (2017) (affirming Commerce’s decision, on remand, to apply an AFA rate to
a cooperative respondent when the agency further explained its determination and
pointed to substantial evidence supporting its reliance on inducement/evasion
rationales); Itochu Building Prods. Co. v. United States, Slip Op. 17-73, 2017 WL
2703810, at *16 (CIT June 22, 2017) (remanding Commerce’s use of an inference
adverse to the interests of a cooperative respondent when the agency failed to “conduct
the necessary case-specific analysis to determine whether it was appropriate to apply
an adverse inference to [the respondent] for its supplier’s failure to cooperate”).
26 Specifically, Commerce explained that Venus’s emails “only [[
]].” Final Analysis
Mem. at 3.
27 Commerce found that Venus’s use of the word “[[ 	]]” in relation to the possibility
that Venus would “[[ 	]]” did not
represent “a strong inducement to cooperate,” whereas language indicating a “[[
]]” 	of “[[ 	]]” would have sufficed. Final Analysis Mem. at 3.
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agency has not provided any explanation supporting the distinction it seeks to draw in
this case.
Further, while Mueller recognizes that an unwillingness to export goods produced
by an uncooperative supplier “would potentially induce [the supplier] to cooperate,” the
appellate court also stated that “if the [respondent] has no control over the non-
cooperating suppliers, a resulting adverse inference is potentially unfair to the
[respondent].” Mueller, 753 F.3d at 1235 (citing SKF, 630 F.3d at 1375). 28 The concept
of “control,” as discussed in Mueller, does not require actual control, but, instead, it
requires Commerce to consider record evidence concerning the practical ability of a
respondent to induce the supplier’s cooperation. 753 F.3d at 1235; cf. Xiping, 222 F.
Supp. 3d at 1158 (sustaining Commerce’s determination that an exporter could induce a
downstream purchaser’s cooperation when the record demonstrated that the purchaser
was not able to use a different supplier due to the “nature of their relationship” and the
exporter’s market dominance). 29
28 The SKF court sustained Commerce’s authority to use unaffiliated supplier data to
calculate constructed value rather than a respondent’s acquisition costs. 630 F.3d at
1372–75. However, the court remanded the determination for Commerce to address
the respondent’s concern that the agency may ultimately apply an adverse inference if
the suppliers failed to provide their cost information, noting that the “[u]se of adverse
inferences may be unfair considering [the respondent] has no control over its
unaffiliated supplier’s actions.” Id. at 1375.
29 While Mueller cautions that an adverse inference pursuant to subsection 1677e(a)
could be unfair to a cooperating entity when that entity lacks control over an unaffiliated
supplier, 753 F.3d at 1235, Commerce’s invocation of subsection 1677e(b) does not
absolve the agency from addressing record evidence concerning Venus’s practical
ability to obtain its suppliers’ cooperation as part of its consideration whether Venus
acted to the best of its ability. Setting aside the issue of fairness, in the context of
unaffiliated entities, the concepts of inducement and control overlap. Commerce may
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Court No. 18-00113 	Page 35
Here, Commerce did not adequately consider evidence tending to show that
Venus’s efforts to induce cooperation failed, at least in part, because of circumstances
beyond Venus’s control; to wit, the suppliers’ own concerns that providing the cost
information did not serve the suppliers’ respective interests. See Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must take into
account whatever in the record fairly detracts from its weight.”); Venus 4th Suppl. DQR,
Ex. 1. 30 Moreover, Commerce failed to point to any evidence indicating that Venus
could induce its unaffiliated suppliers’ cooperation. Cf. Canadian Solar II, 415 F. Supp.
not, therefore, limit its inquiry to the precise steps Venus took without considering the
circumstances under which those steps were taken. In other words, Commerce may
not rely on Mueller’s inducement rationale without considering whether a respondent
may, in fact, be able to induce an unaffiliated supplier’s cooperation.
30 As noted, only one of Venus’s [[ 	]] unaffiliated suppliers of SS rounds provided
Commerce with its cost information. Venus 4th Suppl. DQR at 1. The remaining
[[ 	]] gave various reasons for their reticence. Venus’s largest supplier, [[
]], stated that assisting Venus “[[
]]” because [[ 	]] and Venus compete in various markets. Id., Ex. 1 at
ECF pp. 530–31. The company further averred that its [[
]] prevented it from
cooperating. Id., Ex. 1 at ECF p. 531. Venus’s second largest supplier, [[
]], explained that its “[[
]].” Id., Ex. 1 at ECF p. 539. According to [[ 	]], the
company “[[
]].” Id. While Venus explained that [[
]], the company did
not supply the requested information. See id., Ex. 1 at ECF p. 540. Venus’s third
largest supplier, [[ 	]], expressed concern that [[
]]. Id., Ex. 1 at ECF p. 555. Venus attempted
to alleviate that concern, see id., Ex. 1 at ECF pp. 551–52, and it appeared that
[[ 	]] might cooperate, id., Ex. 1 at ECF p. 551. However, [[ 	]] also
indicated its preference that [[ 	]], id.,
Ex. 1 at ECF p. 551, and ultimately did not submit the requested information.
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Court No. 18-00113 	Page 36
3d at 1334 (rejecting Commerce’s reliance on a respondent’s “market presence,
continued growth, and supplier-specific accounts, to substantiate its claim that [the
respondent] could have induced its suppliers’ cooperation” because “[s]uch facts do not
reasonably indicate the presence of a long-term relationship creating leverage”) (second
alteration in original) (citation omitted). Instead, Commerce appeared to assume that
Venus had leverage over its unaffiliated suppliers and simply failed to properly apply
it. 31 Commerce’s reasoning is inconsistent with Mueller, which recognizes the
possibility of inducing cooperation, but not the certainty. 753 F.3d at 1235 (observing
that “if Mueller and other entities were not willing to export goods produced by Ternium,
this would potentially induce Ternium to cooperate”) (emphasis added).
In addition, while Mueller does not require Commerce to consider inducement
and evasion rationales in tandem, record evidence demonstrating that an unaffiliated
supplier is not evading its own antidumping rate by supplying subject merchandise to an
exporter with a lower rate is relevant to whether an exporter may reasonably be able to
induce cooperation from that supplier. 753 F.3d at 1234–35 (approving “Commerce’s
use of an evasion or inducement rationale”) (emphasis added); cf. Xiping, 222 F. Supp.
31 Commerce opined that Venus should have “ensure[d] that it would have [the
suppliers’] full cooperation in any antidumping proceeding with Commerce” before
purchasing from them. Final Analysis Mem. at 3. However, in the eight administrative
reviews that Commerce previously conducted of Venus, Commerce treated Venus as
the producer of the subject merchandise. See I&D Mem. at 12–13 (nevertheless
rejecting Venus’s argument based on prior reviews in part because Venus’s status as
producer was never disputed in those reviews). Moreover, for several years preceding
the instant review, Venus was nominally not subject to the SS Bar Order due to its
partial revocation in 2011. Revocation Finding, 76 Fed. Reg. at 56,403. Thus, Venus
could not have known that it would need the suppliers’ cost information when it
purchased the SS rounds that it converted into the SS bar subject to this review.
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Court No. 18-00113 	Page 37
3d at 1158–59 (sustaining Commerce’s determination that the respondent “was in a
position to induce [the] cooperation” of a noncooperating downstream purchaser of
subject merchandise because the noncooperating company “was not in a position to
evade a dumping margin assigned to [the respondent] by sourcing from a different
supplier”).
Here, record evidence suggests that Venus’s ability to induce cooperation from
its largest supplier was unsupported by any need for that company to evade its own
higher dumping margin. Final Analysis Mem. at 2; 32 cf. Mueller, 753 F.3d at 1235
(noting the “possibility that Ternium could evade its own AFA rate of 48.33 percent by
exporting its goods through Mueller if Mueller were assigned a favorable dumping rate”).
Commerce failed to account for this evidence that fairly detracted from its determination
that Venus “could have done more to induce its suppliers to cooperate.” Final Analysis
Mem. at 3. 33
32 At the time of the changed circumstances review, [[ 	]] had a [[ 	]] percent
dumping margin. Final Analysis Mem. at 2. Commerce indicated that [[ 	]] and
[[ 	]] would potentially be subject to [[ 	]] dumping margins. Id.
However, the degree to which those companies would benefit from Commerce’s
calculation of a company-specific margin for Venus, such that they would be tempted to
evade their own margins, is unclear given that Commerce has not calculated a
company-specific margin for Venus based on its suppliers’ cost information.
33 Because Commerce did not consider or rely on an evasion rationale, Defendant-
Intervenors’ argument that Commerce properly used total AFA in order to prevent
Venus and its suppliers from colluding with each other to evade the imposition of
antidumping duties amounts to impermissible “post hoc rationalization[] for agency
action.” Burlington, 371 U.S. at 168–69 (the court may only sustain the agency’s
decision “on the same basis articulated in the order by the agency itself”).
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Court No. 18-00113 	Page 38
In sum, Commerce’s determination that Venus failed to act to the best of its
ability to obtain its unaffiliated suppliers’ cost information is unsupported by substantial
evidence and otherwise not in accordance with law. 34
2. 	Venus’s Reporting of its Subject Inputs
As discussed, in order to use an adverse inference, 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 from the [agency].” 19 U.S.C. § 1677e(b)(1) (emphasis
added). Commerce’s finding that Venus “failed to clearly identify that it purchase[d] SS
bar as an input until directly asked in the third supplemental questionnaire” presupposes
that Venus had the obligation to do so. However, “[t]o avoid the threat of [section]
1677e(b), a submitter need only provide complete answers to the questions presented
in an information request.” Olympic Adhesives, Inc. v. United States, 899 F.2d 1565,
1574 (Fed. Cir. 1990); see also JSW Steel Ltd. v. United States, 42 CIT ___, ___, 315
34 Venus relies on Itochu to argue that Commerce failed to make the necessary finding
that applying an adverse inference to Venus would “directly and adversely affect the
non-cooperating supplier’s interests.” Pls.’ Mem. at 21 (citing Itochu, 2017 WL
2703810, at *16). In Mueller, the Federal Circuit required Commerce to recalculate
Mueller’s dumping margin using the facts otherwise available pursuant to 19 U.S.C.
§ 1677e(a) with a “primary objective” of calculating “an accurate rate for Mueller” that
nevertheless reflects “policy considerations that motivated the decision under review—
namely, [the agency’s] desire to encourage Mueller to induce Ternium’s cooperation
and Commerce’s concern that calculating too low a rate for Mueller might allow Ternium
to evade its own dumping duty by channeling sales through Mueller.” 753 F.3d at
1235–36. Here, however, Commerce relied on subsection 1677e(b)—not subsection
1677e(a)—and Mueller does not support the need for Commerce find a direct adverse
effect on Venus’s noncooperating suppliers in order to draw an adverse inference
against Venus.
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Court No. 18-00113 	Page 39
F. Supp. 3d 1379, 1383 (2018) (“[W]hile Commerce has latitude to request a wide range
of information, it is only entitled to receive what it actually requests.”). 35
Here, although Commerce initially posed various questions to Venus regarding
its raw materials and production processes, at that time, the agency never requested
Venus to state whether any of its inputs consisted of subject merchandise. See, e.g.,
Submission of Resp. to Section A of the Questionnaire in Changed Circumstances
Review (“Venus AQR”) at A-24, CR 22, PR 65, CJA Tab. 6; Resp. to Section D of the
Questionnaire (May 18, 2017) (“Venus 2nd Suppl. DQR”) at 12–13, CR 201, PR 260,
Suppl. CJA. Documentation supplied by Venus suggested that it consumed subject
merchandise as an input, and Commerce requested clarification. See I&D Mem. at 16.
Venus subsequently confirmed that it used subject SS rounds to produce the SS bar
exported to the United States. See id; Resp. to SQR3-Questionnaire (July 10, 2017) at
ECF pp. 476–77, CR 250, PR 307, CJA Tab 15. Commerce cannot fault Venus for
failing to answer a question before it was requested to do so. See, e.g., Olympic
Adhesives, Inc., 899 F.2d at 1572–75.
Additionally, to the extent that Commerce concluded that Venus failed to act to
the best of its ability by obfuscating its use of subject merchandise, see I&D Mem. at 10
35 Commerce asserted that “[t]he onus is on the respondent to build a clear record.”
I&D Mem. at 10 & n.34 (citing Yama Ribbons, 36 CIT at 1254, 865 F. Supp. 2d at 1299);
Peer Bearing Co.-Changshan v. United States, 32 CIT 1307, 1310, 587 F. Supp. 2d
1319, 1325 (2008)); cf. Def.-Ints.’ Resp. at 24 n.15 (citation omitted). While Yama
Ribbons and Peer Bearing support the notion that a respondent bears the burden of
providing complete, accurate, and timely responses to Commerce’s questionnaires, and
cannot later complain about an adverse determination when the respondent withheld
beneficial information, neither case suggests that a respondent is required to supply
information beyond what Commerce requests in its questionnaires.
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Court No. 18-00113 	Page 40
(stating that Venus “used multiple terms for the same input”), Commerce has not
explained why the record supports that finding. The scope of the SS Bar Order
explicitly covers “articles of stainless steel in straight length that have been . . . hot-
rolled, . . . having a uniform solid cross-section . . . in the shape of circles, segments of
circles, [and] ovals.” 60 Fed. Reg. at 9,661. Early in the review, Venus described one
of its inputs as “S.S. Rounds – Hot Rolled.” Venus AQR, Annex. A-8. Commerce does
not explain why the term “rounds[,] bars[,] and rods of stainless steel” that Venus used
in the documentation that alerted Commerce to the possibility that the input was subject
merchandise, see, e.g., Venus 2nd Suppl. DQR, Annex. SQR-85 at ECF p. 304, was
any clearer than the terminology Venus used in its Section A Questionnaire Response.
Moreover, Venus’s use of the term “Stainless Steel Black Bars” in the narrative portion
of its Section A Questionnaire Response, Venus AQR at A-24, is consistent with
terminology used in a declaration accompanying Petitioners’ request for the changed
circumstances review, Pet’rs’ Req. for Changed Circumstances Review (Sept. 29,
2016), CR 1, PR 1, CJA Tab 1; id., Ex. AD-IN-4.A ¶ 3, Suppl. CJA (referring to the
production of SS bar from “black bar”). This consistency suggests that the term “black
bar” is an accepted industry term. See Pls.’ Mem. at 24–25. Thus, in the event that
Commerce continues to rely on an obfuscation rationale, the agency must explain why
the record supports that finding and address the contrary evidence discussed above.
In sum, Commerce’s decision to use an adverse inference on the basis that
Venus did not identify its consumption of subject inputs until requested to do so is
unsupported by substantial evidence. Accordingly, while the court sustains
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Commerce’s Remand Results to the extent that they further explain why Commerce
determined that Venus was not the producer of the imported SS bar, the court will
remand the Final Results as amended by the Remand Results for Commerce to
reconsider its use of total AFA.
CONCLUSION AND O RDER
In accordance with the foregoing, it is hereby:
ORDERED that Commerce’s Final Results, as amended by the Remand Results,
are remanded to the agency for reconsideration with respect to the agency’s use of total
AFA consistent with this opinion; it is further
ORDERED that Commerce shall file its remand results on or before November
12, 2020; it is further
ORDERED that subsequent proceedings shall be governed by USCIT Rule
56.2(h); and it is further
ORDERED that any comments or responsive comments must not exceed 5,000
words.
/s/ 	Mark A. Barnett
Mark A. Barnett, Judge
Dated: August 14, 2020
New York, New York
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