NEXTEEL Co., Ltd. v. United States

Slip Op. 21-147
UNITED STATES COURT OF INTERNATIONAL TRADE
HUSTEEL CO., LTD.,
Plaintiff,
and
SEAH STEEL CORPORATION,
HYUNDAI STEEL COMPANY, and
NEXTEEL CO., LTD.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
WHEATLAND TUBE COMPANY,
Defendant-Intervenor.
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 19-00107
OPINION
[Sustaining the U.S. Department of Commerce’s second remand results in the 2016–
2017 administrative review of the antidumping duty order on circular welded non-
alloy steel pipe from the Republic of Korea.]
Dated: October 19, 2021
Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S.
Hodgins, and Eugene Degnan, Morris, Manning & Martin LLP, of Washington,
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D.C., for Plaintiff Husteel Co., Ltd.
Jeffrey M. Winton and Amrietha Nellan, Winton & Chapman PLLC, of
Washington, D.C., for Consolidated Plaintiff SeAH Steel Corporation.
Robert G. Gosselink and Jarrod M. Goldfeder, Trade Pacific PLLC, of
Washington, D.C., for Consolidated Plaintiff Hyundai Steel Company.
J. David Park, Henry D. Almond, Daniel R. Wilson, Leslie C. Bailey, and Kang
Woo Lee, Arnold & Porter Kaye Scholer LLP, of Washington, D.C., for
Consolidated Plaintiff NEXTEEL Co., Ltd.
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, D.C., for Defendant United
States. With her on the brief were Brian M. Boynton, Acting Assistant Attorney
General, and Jeanne E. Davidson, Director. Of counsel on the brief was Elio
Gonzalez, Senior Attorney, Office of the Chief Counsel for Trade Enforcement &
Compliance, U.S. Department of Commerce, of Washington, D.C.
Roger B. Schagrin, Elizabeth J. Drake, and Christopher T. Cloutier, Schagrin
Associates, of Washington, D.C., for Defendant-Intervenor Wheatland Tube
Company.
Choe-Groves, Judge: Plaintiff Husteel Co., Ltd. (“Husteel”) and
Consolidated Plaintiffs SeAH Steel Corporation (“SeAH”), Hyundai Steel
Company (“Hyundai Steel”), and NEXTEEL Co., Ltd. (“NEXTEEL”),
(collectively, “Plaintiffs”), filed this consolidated action challenging the final
results published by the U.S. Department of Commerce (“Commerce”) in the
2016–2017 administrative review of the antidumping duty order on circular welded
non-alloy steel pipe from the Republic of Korea (“Korea”). See Circular Welded
Non-Alloy Steel Pipe from the Republic of Korea (“Final Results”), 84 Fed. Reg.
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26,401 (Dep’t of Commerce June 6, 2019) (final results of admin. review; 2016–
2017); see also Issues and Decision Mem. for the Final Results of the 2016–2017
Admin. Review of the Antidumping Duty Order on Circular Welded Non-Alloy
Steel Pipe from the Republic of Korea (May 30, 2019) (“Final IDM”), PR 173.
Before the Court are the Final Results of Redetermination Pursuant to Court
Remand (“Second Remand Results”), ECF No. 62-1, which the Court ordered in
Husteel Co. v. United States (“Husteel II”), 45 CIT __, 517 F. Supp. 3d 1342
(2021). For the reasons discussed below, the Court sustains the Second Remand
Results.
BACKGROUND
The Court presumes familiarity with the facts and procedural history set
forth in its prior opinions and recounts the facts relevant to the Court’s review of
the Second Remand Results. See Husteel Co. v. United States, 44 CIT __, __, 476
F. Supp. 3d 1363, 1367–68 (2020); Husteel II, 45 CIT at __, 517 F. Supp. 3d at
1345–46.
In Husteel Co. v. United States (“Husteel I”), 44 CIT __, 476 F. Supp. 3d
1363 (2020), the Court concluded that Commerce’s adjustment to the cost of
production for the purpose of the sales-below-cost test pursuant to 19 U.S.C.
§ 1677b(b)(1) and Commerce’s determination that a particular market situation
distorted costs under 19 U.S.C. § 1677b(e) in the Final Results were not in
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accordance with the law because 19 U.S.C. § 1677b(e) applies only when
Commerce bases normal value on constructed value. Husteel I, 44 CIT at __, 476
F. Supp. 3d at 1373–74, 1377.
Commerce maintained on remand its determination that a particular market
situation distorted the cost of production. Final Results of Redetermination
Pursuant to Court Order (“Remand Results”) at 7–8, ECF Nos. 47-1, 48-1.
Commerce did not conduct the sales-below-cost test because, it explained, the
sales-below-cost test would not be “meaningful” without an adjustment to the cost
of production to account for the particular market situation. Id. at 7. Instead,
Commerce made a particular market situation determination under 19 U.S.C.
§ 1677(15)(C), stating that the distorted cost of production prevented a proper
comparison between home market sales and export prices. Id. “[A]bsent the
ability to determine whether the comparison market sales were made within the
ordinary course of trade,” under respectful protest, Commerce based normal value
on constructed value under 19 U.S.C. § 1677b(a)(4) for each respondent. Id. at 1,
7, 9. In calculating constructed value, Commerce made a cost-based particular
market situation determination under 19 U.S.C. § 1677b(e) and adjusted the cost of
production as an alternative calculation methodology. Id. at 8–9.
The Court granted in Husteel II the motion for a partial remand filed by
Defendant United States (“Defendant”) to reconsider its decisions to base normal
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value on constructed value and make certain particular market situation
adjustments to the cost of production when calculating constructed value in light of
the subsequent issuance of this Court’s decision in Saha Thai Steel Pipe Public Co.
v. United States, 44 CIT __, 487 F. Supp. 3d 1323 (2020). Husteel II, 45 CIT at
__, 517 F. Supp. 3d at 1346–47, 1348.
On second remand, Commerce “continue[d] to find that a particular market
situation existed in Korea during the period of review that distorted the price of
hot-rolled coil.” Second Remand Results at 2. Under respectful protest, however,
Commerce recalculated the dumping margins without a particular market situation
adjustment. Id. at 2, 5–6.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final results of an administrative review of an antidumping duty order. The Court
shall hold unlawful any determination found to be unsupported by substantial
evidence on the record or otherwise not in accordance with the law. 19 U.S.C.
§ 1516a(b)(1)(B)(i). The Court also reviews determinations made on remand for
compliance with the Court’s remand order. Ad Hoc Shrimp Trade Action Comm.
v. United States, 38 CIT __, __, 992 F. Supp. 2d 1285, 1290 (2014), aff’d, 802
F.3d 1339 (Fed. Cir. 2015).
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DISCUSSION
Hyundai Steel, Husteel, and Defendant ask the Court to sustain the Second
Remand Results. Comments Consol. Pl., Hyundai Steel Company, Commerce’s
Second Remand Redetermination (“Hyundai Steel’s Cmts.”) at 1–2, ECF No. 65
(joined by Husteel); Def.’s Comments Supp. Remand Redetermination at 2, ECF
No. 67. Hyundai Steel represents that SeAH and NEXTEEL agree that the Second
Remand Results should be sustained. Hyundai Steel’s Cmts. at 2. No party filed
comments opposing the Second Remand Results.
The U.S. Court of Appeals for the Federal Circuit has held that when
Commerce advocates a position zealously and must abandon that position in order
to comply with a ruling of the U.S. Court of International Trade, Commerce
preserves its right to appeal it if adopts a complying position under protest. See
Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). In this
case, under protest, Commerce recalculated the weighted-average dumping
margins for Husteel, Hyundai Steel, and non-examined companies (including
SeAH and NEXTEEL) without a particular market situation adjustment. Second
Remand Results at 5–6. The weighted-average dumping margins changed from
10.91% to 6.44% for Husteel, 8.14% to 4.82% for Hyundai Steel, and 9.53% to
5.63% for non-examined companies. Id. at 6. Commerce’s recalculation of the
weighted-average dumping margins without a particular market situation
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adjustment, under protest, is consistent with the Court’s prior opinions and orders
in Husteel I and Husteel II.
Commerce maintained its determination that a particular market situation
distorted the cost of production. Id. at 2–4. The reiterated determination has no
effect on the dumping margins because Commerce recalculated the dumping
margins without a particular market situation adjustment. No party challenges the
determination.
Because the Court sustains Commerce’s removal of the particular market
situation adjustment, consideration of Commerce’s reiterated particular market
situation determination in the Second Remand Results “‘would have no practical
significance’ and is mooted.” See Saha Thai Steel Pipe Pub. Co. v. United States,
45 CIT __, __, Slip Op. 21-118 at 7 (Sept. 17, 2021) (quoting Morton Int’l, Inc. v.
Cardinal Chem. Co., 967 F.2d 1571, 1574 (Fed. Cir. 1992) (Nies, C.J., dissenting
from the order declining suggestions for rehearing en banc) (citations omitted)
(“An issue is also said to be ‘mooted’ when a court, having decided one dispositive
issue, chooses not to address another equally dispositive issue.”); citing Daewoo
Elecs. Co. v. Int’l Union of Elec., Elec., Tech., Salaried & Mach. Workers, 6 F.3d
1511, 1513 (Fed. Cir. 1993) (“[O]ur disposition of the tax incidence issue moots
two other issues . . . .”)).
The Court sustains the Second Remand Results without considering
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Commerce’s reiterated particular market situation determination in the Second
Remand Results.
CONCLUSION
The Court sustains the Second Remand Results.
Judgment will be entered accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	October 19, 2021
New York, New York
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