Union Steel v. United States

33 ITRD 2301

804 F.Supp.2d 1356

UNION STEEL, Plaintiff,

v.UNITED STATES, Defendant,andUnited States Steel Corporation and Nucor Corporation, Defendant–Intervenors.

Slip Op. 11–144.Court No. 08–00101.

United States Court of International Trade.

Nov. 21, 2011.

Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, and Mary S. Hodgins, Troutman Sanders LLP, of Washington, DC, for plaintiff.

Tara K. Hogan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Claudia Burke, Assistant Director. Of counsel on the brief was Daniel J. Calhoun, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.

Robert E. Lighthizer, Ellen J. Schneider, and Jeffrey D. Gerrish, Skadden, Arps, Slate Meagher & Flom LLP, of Washington, DC, for defendant-intervenor United States Steel Corporation.Timothy C. Brightbill and Alan H. Price, Wiley Rein LLP, of Washington, DC, for defendant-intervenor Nucor Corporation.

OPINION AND ORDER

STANCEU, Judge:

In this action, plaintiff Union Steel Manufacturing Co., Ltd. (“Union”) contests a final determination (“Final Results”) issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”), in the thirteenth administrative review of an antidumping duty order on imports of certain corrosion-resistant carbon steel flat products (“CORE” products or “CORE”) from the Republic of Korea (“Korea”). Compl.; See Certain Corrosion–Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Thirteenth Admin. Review, 73 Fed.Reg. 14,220 (Mar. 17, 2008) (“ Final Results ”). The thirteenth review applied to imports of Korean CORE (“subject merchandise”) entered during the period of August 1, 2005 through July 31, 2006 (the “period of review” or “POR”). Final Results, 73 Fed.Reg. at 14,220. Union challenges the Department's determination in the Final Results that subject non-laminated, painted CORE products sold in the United States and laminated CORE products plaintiff sold in the home market of Korea could be compared as products “identical in physical characteristics” within the meaning of section 771(16)(A) of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1677(16)(A) (2006), a determination the court held unlawful in an opinion and order issued earlier this year. Union Steel v. United States, 35 CIT ––––, 753 F.Supp.2d 1317 (2011) (“ Union III ”). Union also challenges the Department's use of the “zeroing methodology” ¹ in the thirteenth administrative review, which use the court, in ruling on the Department's first redetermination upon remand (“First Remand Results”), upheld in an opinion and order issued in 2009. Union Steel v. United States, 33 CIT ––––, 645 F.Supp.2d 1298 (2009) ( “ Union II ”); Final Results of Redetermination Pursuant to Remand (Dec. 28, 2009), ECF No. 79 (“ First Remand Results ”).

Before the court is the Department's determination in response to the court's second remand order (“Second Remand Results”), in which the Department, reversing the position it took in the Final Results and in the First Remand Results, determined that subject non-laminated, painted CORE may not lawfully be compared to laminated CORE as products identical in physical characteristics. Final Results of Redetermination Pursuant to Remand 5–8 (April 11, 2011), ECF No. 143 (“ Second Remand Results ”). As a result of this change in position, Commerce decreased Union's weighted-average dumping margin from 4.35% to 3.59%. Id. at 20. Also before the court is Union's motion requesting that the court reconsider the decision in Union II affirming the Department's use of zeroing in the thirteenth administrative review, which motion Union bases on a decision of the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals”) issued after the Final Results and the court's Union II decision. Pl. Union Steel's Mot. for Reconsideration (April 5, 2011), ECF No. 142 (“Pl.'s Mot.”).

The court affirms the Department's determination that subject non-laminated CORE may not be compared with laminated CORE sold in the home market as merchandise that is identical in physical characteristics. In response to Union's motion for reconsideration, the court sets aside its previous affirmance of the Department's decision to apply zeroing in the thirteenth administrative review and determines that a remand is appropriate under which Commerce must reconsider that decision.

I. Background

Background on this litigation is set forth in the court's prior opinions and orders and supplemented herein. Union Steel v. United States, 617 F.Supp.2d 1373, 1375–78 (C.I.T. 2009) (“ Union I ”); Union II, 33 CIT at ––––, 645 F.Supp.2d at 1300–02; Union III, 35 CIT at ––––, 753 F.Supp.2d at 1319–1320.

Plaintiff filed its motion for reconsideration on April 5, 2011, relying on the decision of the Court of Appeals in Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed.Cir.2011). Pl.'s Mot. On May 9, 2011, defendant and defendant-intervenors Nucor Corporation (“Nucor”) and United States Steel Corporation (“U.S. Steel”) opposed this motion. Def.'s Resp. in Opp'n to Pl. Union Steel's Mot. for Reconsideration (May 9, 2011), ECF No. 151 (“Def.'s Opp'n”); Def.-intervenor's Opp'n to Union Steel's Mot. for Reconsideration (May 9, 2011), ECF No. 149 (“Nucor's Opp'n”); Mem. of Def.-intervenor United States Steel Corp. in Opp'n to Pl. Union Steel's Mot. for Reconsideration (May 9, 2011), ECF No. 150 (“U.S. Steel's Opp'n”).

The Department filed the Second Remand Results on April 11, 2011, in response to the court's remand order in Union III. Second Remand Results; Union III, 35 CIT at ––––, 753 F.Supp.2d at 1333. Plaintiff commented in support of the Second Remand Results on May 11, 2011. Pl. Union Steel's Comments on the U.S. Dept. of Commerce's April 11, 2011 Final Results of Redetermination Pursuant to Ct. Remand (May 11, 2011), ECF No. 152. On May 12, 2011, defendant-intervenors filed comments in opposition to the Second Remand Results. Nucor Corp.'s Comments on Second Remand Results (May 12, 2011), ECF No. 154 (“Nucor's Comments”); United States Steel Corp.'s Comments on the Final Results of Redetermination Pursuant to Ct. Remand Issued by the Dept. of Commerce (May 12, 2011), ECF No. 153 (“U.S. Steel's Comments”). On May 26, 2011, defendant filed its reply in support of the Second Remand Results. Def.'s Resp. to Def.-intervenors' Comments on the Dept. of Commerce's Remand Results (May 26, 2011), ECF No. 164. On the same day, Union moved for leave to file a reply in support of the Second Remand Results. Pl. Union Steel's Mot. for Leave to Reply to U.S. Steel Corp. & Nucor Corp.'s May 11, 2011 Comments on the U.S. Dept. of Commerce's April 11, 2011 Final Results of Redetermination Pursuant to Ct. Remand (May 26, 2011), ECF No. 163.

II. Discussion

The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006), pursuant to which the court reviews actions commenced under section 516A of the Tariff Act, 19 U.S.C. § 1516a, including an action contesting the final results of an administrative review that Commerce issues under section 751 of the Tariff Act, 19 U.S.C. § 1675(a). The court “shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law....” 19 U.S.C. § 1516a(b)(1)(B)(i).

A. The Second Remand Results Lawfully Determined that Non–Laminated, Painted CORE Was Not “Identical in Physical Characteristics” to Laminated CORE

In an administrative review, Commerce determines the normal value, the export price or constructed export price, and the dumping margin for each entry of the subject merchandise. 19 U.S.C. § 1675(a)(2). Determining a dumping margin requires Commerce to compare the U.S. sale price with the normal value, which typically is based on the price at which the foreign like product is sold for consumption in the exporting country (the “home market”). 19 U.S.C. § 1677b(a)(1)(B). The statute directs in § 1677(16)(A) that Commerce, in determining the foreign like product, first seek to compare a U.S. sale of subject merchandise with a home-market sale of merchandise “which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise.” Id. § 1677(16)(A). If no such comparison can be satisfactorily made, Commerce, in accordance with § 1677(16)(B), seeks to match the subject merchandise with merchandise produced in the same country, produced by the same person, that is “like that merchandise in component material or materials and in the purposes for which used,” and “approximately equal in commercial value to that merchandise.” Id. § 1677(16)(B). If the latter comparison cannot be satisfactorily made under § 1677(16)(B), Commerce is to seek to match the subject merchandise under § 1677(16)(C) with merchandise produced in the same country and by the same person that is “of the same general class or kind as the subject merchandise ... like that merchandise in the purposes for which used ... [and] may reasonably be compared with that merchandise.” Id. § 1677(16)(C).

In the Final Results and the First Remand Results, Commerce rejected Union's proposal that laminated CORE comprise a separate type category for model matching purposes and accordingly included laminated CORE within the “other painted” type category. Issues & Decisions Mem., A–580–816, ARP 3–08, at 13–14 (Mar. 10, 2008) (Admin.R.Doc. No. 4563) (“ Decision Mem.”); First Remand Results 1. As a result, Commerce compared, as merchandise “identical in physical characteristics” for purposes of § 1677(16)(A), subject merchandise consisting of non-laminated,...