NEXTEEL Co. v. United States

[Sustaining in part and remanding in part the U.S. Department of Commerce's third remand redetermination following the 2015-2016 administrative review of the antidumping duty order on oil country tubular goods from the Republic of Korea.]

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 Plaintiff NEXTEEL Co., Ltd.

Jeffrey M. Winton, Amrietha Nellan, and Jooyoun Jeong, Winton & Chapman PLLC, of Washington, D.C., for Consolidated Plaintiff SeAH Steel Corporation.

Claudia Burke, Assistant Director, and Hardeep K. Josan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y., for Defendant United States. With them on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director. Of counsel was Mykhaylo Gryzlov, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, D.C.

Thomas M. Beline, Myles S. Getlan, and James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenor United States Steel Corporation.

Gregory J. Spak, Frank J. Schweitzer, Kristina Zissis, and Matthew W. Solomon, White & Case LLP, of Washington, D.C., for Defendant-Intervenors Maverick Tube Corporation and Tenaris Bay City, Inc.

Before: Jennifer Choe-Groves, Judge

OPINION

JENNIFER CHOE-GROVES, JUDGE

Before the Court is the U.S. Department of Commerce's ("Commerce") third remand redetermination in the administrative review of the antidumping duty order on oil country tubular goods ("OCTG") from the Republic of Korea ("Korea") covering the period from September 1, 2015 to August 31, 2016. See Commerce's Final Results of Redetermination Pursuant to Court Remand ("Third Remand Redetermination"), ECF No. 119-1, pursuant to Order, ECF No. 114; see also Certain Oil Country Tubular Goods From the Republic of Korea, 83 Fed.Reg. 17,146 (Dep't of Commerce Apr. 18, 2018) (final results of antidumping duty administrative review and final determination of no shipments; 2015-2016) ("Final Results"), and accompanying Issues and Decision

Memorandum for the Final Results of the 2015-2016 Administrative Review of the Antidumping Duty Order on Certain Oil Country Tubular Goods from the Republic of Korea (Apr. 11, 2018) ("Final IDM"), PR 368.^[1]

In NEXTEEL Co. v. United States ("NEXTEEL IV"), 28 F.4th 1226 (Fed. Cir. 2022), the U.S. Court of Appeals for the Federal Circuit ("CAFC") remanded for Commerce to further consider whether a particular market situation could be found based on any subset of the factors or other reasoning, and for proceedings consistent with the CAFC's decision in Stupp Corp. v. United States ("Stupp"), 5 F.4th 1341 (Fed. Cir. 2021). NEXTEEL IV, 28 F.4th at 1238-39, 41.

For the following reasons, the Court sustains in part and remands in part Commerce's Third Remand Redetermination.

BACKGROUND

The Court presumes familiarity with the facts and procedural history of this case and recites the facts relevant to the Court's review of the Third Remand Redetermination. See NEXTEEL Co. v. United States ("NEXTEEL I"), 43 CIT ___, ___, 392 F.Supp.3d 1276, 1283-84 (2019); NEXTEEL Co. v. United States ("NEXTEEL II"), 44 CIT ___, ___, 450 F.Supp.3d 1333, 1337-38 (2020);

NEXTEEL Co. v. United States ("NEXTEEL III"), 44 CIT ___, ___, 475 F.Supp.3d 1378, 1380-81 (2020).

In this administrative review of OCTG from Korea, Commerce selected Plaintiff NEXTEEL Co., Ltd. ("NEXTEEL") and Consolidated Plaintiff SeAH Steel Corporation ("SeAH") as mandatory respondents for individual examination. See NEXTEEL I, 43 CIT at ___, 392 F.Supp.3d at 1283.

In NEXTEEL Co. v. United States ("NEXTEEL I"), 43 CIT, 392 F.Supp.3d 1276 (2019), the Court sustained in part and remanded in part the Final Results. NEXTEEL I, 43 CIT at ___, 392 F.Supp.3d at 1297. In NEXTEEL Co. v. United States ("NEXTEEL II"), 44 CIT, 450 F.Supp.3d 1333 (2020), the Court sustained in part and remanded in part the Remand Redetermination. NEXTEEL II, 44 CIT at ___, 450 F.Supp.3d at 1346-47; see Commerce's Final Results of Redetermination Pursuant to Court Remand ("Remand Redetermination"), ECF No. 81-1, pursuant to Order, ECF No. 73. In NEXTEEL Co. v. United States ("NEXTEEL III"), 44 CIT, 475 F.Supp.3d 1378 (2020), the Court sustained the Second Remand Redetermination. NEXTEEL III, 44 CIT at ___, 475 F.Supp.3d at 1380; see Commerce's Final Results of Redetermination Pursuant to Court Remand ("Second Remand Redetermination"), ECF No. 96-1, pursuant to Order, ECF No. 95. In NEXTEEL IV, the CAFC directed the Court to remand to Commerce to further consider whether a particular market situation

could be found based on any subset of the factors or other reasoning, and for proceedings consistent with the CAFC's decision in Stupp. NEXTEEL IV, 28 F.4th at 1238-39, 41.

In the Third Remand Redetermination, Commerce reconsidered the record and determined that substantial evidence did not support the conclusion that a particular market situation existed in Korea during the period of review. Third Remand Redetermination at 11-12, 16. Commerce also reconsidered the differential pricing analysis and provided further explanation regarding Commerce's application of the Cohen's d test to SeAH's U.S. sales. Id. at 16-21, 57-73. Commerce determined that the weighted-average dumping margins calculated in the Second Remand Redetermination would remain the same. Id. at 74.

NEXTEEL filed Plaintiff NEXTEEL Co., Ltd.'s Comments on Remand Redetermination, in which Plaintiff raises concerns but argues that Commerce's Third Remand Redetermination should be sustained. Pl.'s Cmts. on Remand Redetermination ("Pl.'s Br."), ECF No. 122. SeAH filed two briefs, Comments of SeAH Steel Corporation in Partial Opposition to Commerce's October 21, 2022, Redetermination and Comments of SeAH Steel Corporation in Partial Support of Commerce's October 21, 2022, Redetermination, in which SeAH argues that Commerce's differential pricing analysis should be remanded and its particular

market situation analysis should be sustained. Cmts. SeAH Part. Opp'n Commerce's Oct. 21, 2022 Redetermination ("Consol. Pl.'s Part. Opp'n Br."), ECF Nos. 123, 124; Cmts. SeAH Part. Supp. Commerce's October 21, 2022 Redetermination ("Consol. Pl.'s Part. Supp. Br."), ECF No. 126. Defendant-Intervenor United States Steel Corporation ("Defendant-Intervenor" or "U.S. Steel") filed United States Steel Corporation's Comments in Partial Opposition to Remand Results, arguing that Commerce's particular market situation analysis should be remanded. Def.-Interv.'s Cmts. Part. Opp'n Remand Results ("Def.-Interv.'s Br."), ECF No. 121. Defendant filed Defendant's Response to Comments Regarding the Remand Redetermination. Def.'s Resp. Cmts. Regarding Remand Redetermination ("Def.'s Br."), ECF No. 125. NEXTEEL filed Plaintiff Nexteel Co., Ltd.'s Reply Comments on Remand Redetermination. Pl.'s Reply Cmts. Remand Redetermination, ECF No. 127.

JURISDICTION AND STANDARD OF REVIEW

The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(i) 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 will hold unlawful any determination found to be unsupported by substantial record evidence or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Particular Market Situation

Commerce determines antidumping duties by calculating the amount by which the normal value of subject merchandise exceeds the export price or the constructed export price for the merchandise. 19 U.S.C. § 1673. When reviewing antidumping duties in an administrative review, Commerce must determine: (1) the normal value and export price or constructed export price of each entry of the subject merchandise, and (2) the dumping margin for each such entry. Id. § 1675(a)(1)(B), (a)(2)(A).

The statute dictates the steps by which Commerce may calculate normal value "to achieve a fair comparison" with export price or constructed export price. Id. § 1677b(a). When Commerce looks to determine normal value in accordance with 19 U.S.C. § 1677b, if Commerce concludes that it must resort to using constructed value under 19 U.S.C. § 1677b(e), and that a "particular market situation" exists "such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade," the statute authorizes Commerce to use any other reasonable calculation methodology. Id. § 1677b(e). The origin in the statute of "particular market situation" is its inclusion in the framework of "normal value" when the Tariff Act of 1930 was amended by the Uruguay Round Agreements Act. See Pub. L. 103-465, § 224, 108 Stat. 4809, 4878 (1994);^[2] cf.

Trade Preferences Extension Act of 2015 ("TPEA"), Pub. L. No. 114-27, 129 Stat. 362 (2015) (adding the concept of a particular market situation in the definition of the term "ordinary course of trade" for purposes of constructed value and clarifying remedial action if Commerce finds the existence of a particular market situation). The Trade Preferences Extension Act of 2015 amended certain subsections of the Tariff Act of 1930. See TPEA, Pub. L...