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

Slip Op. 21-
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
OPINION AND ORDER
[The U.S. Department of Commerce’s second remand results concerning the changed
circumstances review of the antidumping duty order on stainless steel bar from India are
sustained.]
Dated: January 28, 2021
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
Jeffrey B. Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Tara K. Hogan, Assistant Director. Of counsel on the brief was Hendricks Valenzuela,
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.
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 1 of 8

Court No. 18-00113 	Page 2
Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or “the agency”) second redetermination upon court-ordered
remand. See Confidential Results of Redetermination Pursuant to Court Remand (“2nd
Remand Results”), ECF No. 75-1. Plaintiffs, Venus Wire Industries Pvt. Ltd. (“Venus
Wire”) and its affiliates Precision Metals (“Precision”), Sieves Manufacturers (India) Pvt.
Ltd. (“Sieves”), and Hindustan Inox Ltd. (“Hindustan”) (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 Summons, ECF No. 1; 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), ECF No. 20-6. 1 Venus, an exporter and producer of the subject
merchandise, contested Commerce’s determinations (1) that Venus is not the producer
of subject merchandise made from inputs purchased from unaffiliated suppliers 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
1 The administrative record associated with the 2nd Remand Results is divided into a
Public Record (“PR”), ECF No. 77-2, and a Confidential Record (“CR”), ECF No. 77-3.
The Parties submitted a public joint appendix containing record documents cited in their
comments. See Public J.A., ECF No. 87. Submission of the confidential joint appendix
has been deferred pending resolution of issues with the court’s electronic court filing
system. While the court is able to resolve the challenges to the 2nd Remand Results
without reference to the confidential joint appendix, Plaintiffs must nevertheless file such
appendix within five business days of a court order resolving the method of such non-
public filings in order to provide for a complete record in case of any further appeal.
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 2 of 8

Court No. 18-00113 	Page 3
available” or “total AFA”) to determine Venus’s rate. See Confidential [Venus’s] Mem. of
P&A in Supp. of Its Mot. For J. on the Agency R., ECF No. 33; Compl. ¶ 3. The court
has issued two opinions addressing issues in this case; familiarity with those opinions is
presumed. See Venus Wire Indus. Pvt. Ltd. v. United States (“Venus I”), 43 CIT ___,
424 F. Supp. 3d 1369 (2019); Venus Wire Indus. Pvt. Ltd. v. United States (“Venus II”),
44 CIT ___, 471 F. Supp. 3d 1289 (2020).
Briefly, on December 20, 2019, the court remanded Commerce’s Final Results
with respect to the agency’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. See generally Venus I, 424 F. Supp. 3d 1369. In the
agency’s first remand redetermination, Commerce provided 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. Results of Redetermination Pursuant to
Court Remand at 3–11, 14–20, ECF No. 61-1. On August 14, 2020, the court sustained
Commerce’s redetermination as to the identity of the producer and remanded
Commerce’s use of total AFA for reconsideration. See generally Venus II, 471 F. Supp.
3d 1289.
Commerce filed its 2nd Remand Results on November 12, 2020. In the
redetermination, Commerce provided additional support for its finding that Venus failed
to act to the best of its ability to obtain cost information from its unaffiliated suppliers.
See 2nd Remand Results at 4–9. Despite the inclusion of this additional reasoning,
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 3 of 8

Court No. 18-00113 	Page 4
Commerce, “under respectful protest,” 2 determined not to use total AFA to determine
Venus’s dumping margin. 3 Id. at 10. Instead, Commerce calculated an antidumping
duty margin in the amount of 0.64 percent for Venus using:
(1) Venus’[s] actual costs for the subject merchandise Venus produced
from stainless steel wire rod; (2) the actual costs reported by Rajputana
Stainless Ltd. (Rajputana), the sole unaffiliated supplier which provided its
actual costs, for the subject merchandise Venus purchased from
Rajputana; and (3) the acquisition cost Venus paid to the other unaffiliated
suppliers as the non-adverse facts available on the record in place of
those suppliers’ actual costs for the subject merchandise Venus
purchased from them.
Id.
Commerce rejected Venus’s arguments that Commerce improperly collapsed
Venus Wire, Precision, Sieves, and Hindustan “into a single entity and [improperly]
calculated Venus’[s] margin by including the producer as part of the model-matching
criteria for purposes of conducting the cost-of-production test.” Id. at 11; see also id. at
11–13. Commerce also disagreed with Petitioners’ 4 argument that the agency should
continue to use total or partial AFA. Id. at 13–15.
Venus seeks to challenge, in part, Commerce’s 2nd Remand Results.
Confidential Pls.’ Cmts. on the Second Remand Redetermination (“Venus’s Opp’n
2 By making the determination under protest, Commerce preserves its right to appeal.
See Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003).
3 Commerce did not revisit its previous finding that Venus’s “obfuscation of the fact that
it purchased subject merchandise from its unaffiliated suppliers” presented an additional
basis for using AFA. 2nd Remand Results at 10.
4 Petitioners—Defendant-Intervenors in this case—consist of Carpenter Technology
Corporation; Crucible Industries LLC; Electralloy, a Division of G.O. Carlson, Inc.; North
American Stainless; Universal Stainless & Alloy Products, Inc.; and Valbruna Slater
Stainless, Inc. Id. at 4 n.19.
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 4 of 8

Court No. 18-00113 	Page 5
Cmts.”), ECF No. 81. While Venus agrees with Commerce’s decision not to apply total
AFA, id. at 2–3, Venus challenges Commerce’s method of calculating its dumping
margin, id. at 3–5.
Defendant-Intervenors object to Commerce’s determination not to use total AFA.
Confidential Def.-Ints.’ Cmts. in Opp’n to Remand Redetermination (“Def.-Ints.’ Opp’n
Cmts.”), ECF No. 79. Defendant-Intervenors support Commerce’s margin calculation
methodology. Def.-Ints.’ Resp. to Cmts. on the Second Remand Redetermination
(“Def.-Ints.’ Supp. Cmts.”), ECF No. 84.
Defendant United States (“the Government”) urges the court to sustain the 2nd
Remand Results. Def.’s Resp. to Cmts. on the Second Remand Redetermination
(“Def.’s Supp. Cmts.”), ECF No. 83. 5
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), 6 and 28 U.S.C. § 1581(c).
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
5 The court references the public version of the Government’s comments. The redacted
information is immaterial to the court’s disposition of the Parties’ challenges to the 2nd
Remand Results. Nevertheless, as discussed supra, note 1, the Government must file
the confidential version of its comments within five business days of a court order
resolving the method of such non-public filings.
6 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.
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 5 of 8

Court No. 18-00113 	Page 6
with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___,
___, 273 F. Supp. 3d 1314, 1317 (2017) (citation omitted).
DISCUSSION
Venus argues that Commerce’s inclusion of the identity of the manufacturer as
part of the agency’s model-match criteria for purposes of conducting the cost-of-
production test was arbitrary given its inconsistency with Commerce’s approach in the
subsequent 2017–2018 administrative review of the underlying order. Venus’s Opp’n
Cmts. at 3–5. Venus’s argument lacks merit.
As Commerce explained, the term “foreign like product” is statutorily defined in
reference to the producer. See 2nd Remand Results at 12 (citing 19 U.S.C.
§ 1677(16)). Specifically, foreign like product is defined, inter alia, as merchandise that
is “produced in the same country and by the same person” as the subject merchandise.
19 U.S.C. § 1677(16) (emphasis added). Commerce therefore matches sales by
manufacturer when “compar[ing] prices of U.S. sales of subject merchandise to the
prices of sales of the foreign like product.” 2nd Remand Results at 12. Accordingly,
irrespective of Commerce’s methodology in the subsequent review, Commerce’s
decision in this proceeding to account for the identity of the manufacturer when
conducting the cost-of-production test complies with the statute.
Commerce also explained that the agency has a “long-standing practice” of using
manufacturer codes as part of its model-match criteria. Id. at 12 & n.52 (collecting
agency determinations). Indeed, Commerce’s methodology in the 2nd Remand Results
comports with the methodology Commerce used for the final results of the 2018–2019
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 6 of 8

Court No. 18-00113 	Page 7
administrative review of the underlying order. See Issues and Decision Mem. for the
Final Results of the Admin. Review of the Antidumping Duty Stainless Steel Bar from
India, A-533-810 (Nov. 18, 2020) at 49–50, available at https://enforcement.trade.gov/
frn/summary/india/2020-25942-1.pdf (last visited Jan. 28, 2021). Venus does not
dispute the existence of this practice but instead focuses on Commerce’s methodology
for the final results of the 2017–2018 administrative review. See Venus’s Opp’n Cmts.
at 4–5. However, as the Government and Defendant-Intervenors point out, the court
granted Commerce’s request for a remand to reconsider certain aspects of that
determination. Def.’s Supp. Cmts. at 12; Def.-Ints.’ Supp. Cmts. at 2. In its
redetermination, Commerce aligned its margin calculation methodology with its long-
standing practice. See Carpenter Tech. Corp., et al. v. United States, et al., Court No.
19-cv-00200 (CIT Jan. 28, 2021), ECF No. 34-1 (Results of Redetermination Pursuant
to Court Remand) at 10–11. Because Commerce’s methodology in the 2nd Remand
Results is in accordance with law, the court sees no reason to disturb Commerce’s
redetermination.
Defendant-Intervenors argue that Commerce erred in reversing its decision to
use total AFA. See Def.-Ints.’ Opp’n Cmts. at 2–15. However, during a telephone
conference with the Parties, Defendant-Intervenors conceded that this issue is moot in
the event the court sustains Commerce’s calculation methodology. See Docket Entry
(Jan. 15, 2021), ECF No. 86. As discussed above, the court will sustain Commerce
with respect to its model-match methodology and, as a result, Commerce has
calculated an above-de minimis margin of 0.64 percent. See 2nd Remand Results at
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 7 of 8

Court No. 18-00113 	Page 8
10. Because Commerce’s calculation is above de minimis, Venus will remain reinstated
in the underlying order. See id. at 15. The rate calculated in these remand results will
not be the basis of any assessment of antidumping duties; instead, the assessment of
antidumping duties will occur on the basis of the results of the subsequent
administrative reviews. See id. Consequently, Defendant-Intervenors’ argument for the
use of total AFA is moot and will not be further addressed.
CONCLUSION AND O RDER
In accordance with the foregoing, Commerce’s 2nd Remand Results will be
sustained. Notwithstanding the court’s entry of Judgment, as discussed supra, notes 1
and 5, Plaintiffs are ORDERED to file the confidential joint appendix, and the
Government is ORDERED to file the confidential version of its comments, within five
business days of a court order resolving the method of making such non-public filings
with the court. Judgment will enter accordingly.
/s/ 	Mark A. Barnett
Mark A. Barnett, Judge
Dated: January 28, 2021
New York, New York
Case 1:18-cv-00113-MAB Document 88 Filed 01/28/21 Page 8 of 8