Nexteel Co. v. United States ( 2019 )

Slip Op. 19-116
UNITED STATES COURT OF INTERNATIONAL TRADE
NEXTEEL CO., LTD.,
Plaintiff,
HYUNDAI STEEL COMPANY,
HUSTEEL CO., LTD., AJU BESTEEL
CO., LTD., MAVERICK TUBE
CORPORATION, and SEAH STEEL
CORPORATION,
Consolidated Plaintiffs,
and
HUSTEEL CO., LTD., HYUNDAI STEEL
COMPANY, and ILJIN STEEL
Before: Jennifer Choe-Groves, Judge
CORPORATION,
&RQVROCourt No. 17-00091
Plaintiff-Intervenors,
v.
UNITED STATES,
Defendant,
and
TMK IPSCO, VALLOUREC STAR, L.P.,
WELDED TUBE USA INC., MAVERICK
TUBE CORPORATION, and UNITED
STATES STEEL CORPORATION,
Defendant-Intervenors.
OPINION AND ORDER
[Sustaining in part and remanding in part the U.S. Department of Commerce’s remand
redetermination following an administrative review of the antidumping order on oil country
tubular goods from the Republic of Korea.]
Consol. Court No. 17-00091 Page 2
Dated: September 4, 2019
J. David Park, Michael T. Shor, Henry D. Almond, Daniel R. Wilson, Leslie C. Bailey, and Kang
W. Lee, Arnold & Porter Kaye Scholer LLP, of Washington, D.C., for Plaintiff NEXTEEL Co.,
Ltd. and Consolidated Plaintiff Hyundai Steel Company.
Donald B. Cameron, Eugene Degnan, Brady W. Mills, Julie C. Mendoza, Mary S. Hodgins, and
Rudi W. Planert, Morris, Manning & Martin, LLP, of Washington, D.C., for Consolidated
Plaintiff Husteel Co., Ltd.
Jarrod M. Goldfeder and Robert G. Gosselink, Trade Pacific, PLLC, of Washington, D.C., for
Consolidated Plaintiff AJU Besteel Co., Ltd.
Gregory J. Spak, Frank J. Schweitzer, and Kristina Zissis, White & Case, LLP, of Washington,
D.C., for Consolidated Plaintiff and Defendant-Intervenor Maverick Tube Corporation.
Jeffrey M. Winton and Amrietha Nellan, Law Office of Jeffrey M. Winton PLLC, of
Washington, D.C., for Consolidated Plaintiff SeAH Steel Corporation. Jordan Fleischer also
appeared.
Roger B. Schagrin, Elizabeth J. Drake, and Christopher T. Cloutier, Schagrin Associates, of
Washington, D.C., for Defendant-Intervenors TMK IPSCO, Vallourec Star, L.P., and Welded
Tube USA Inc. Paul W. Jameson also appeared.
Thomas M. Beline and Sarah E. Shulman, Cassidy Levy Kent (USA) LLP, of Washington, D.C.,
for Defendant-Intervenor United States Steel Corporation.
Hardeep K. Josan, Attorney, U.S. Department of Justice, of New York, N.Y., for Defendant
United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E.
Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was
Mykhaylo A. Gryzlov, Senior Counsel, U.S. Department of Commerce, Office of the Chief
Counsel for Trade Enforcement and Compliance, of Washington, D.C.
Joel D. Kaufman and Richard O. Cunningham, Steptoe & Johnson LLP, of Washington, D.C.,
for Plaintiff-Intervenor ILJIN Steel Corporation.
Choe-Groves, Judge: This action arises from the U.S. Department of Commerce’s
(“Commerce”) administrative review of the antidumping order on oil country tubular goods
(“OCTG”) from Korea. See Certain Oil Country Tubular Goods from the Republic of Korea, 82
Fed. Reg. 18,105 (Dep’t Commerce Apr. 17, 2017) (final results of antidumping duty
administrative review; 2014–2015), as amended, 82 Fed. Reg. 31,750 (Dep’t Commerce July 10,
Consol. Court No. 17-00091 Page 3
2017) (amended final results of antidumping duty administrative review; 2014–2015) (“Final
Results”). Before the court are the Final Results of Redetermination Pursuant to Court Remand,
Apr. 2, 2019, ECF No. 169 (“Remand Redetermination”), pursuant to the court’s decision in
NEXTEEL Co., Ltd. v. United States, 43 CIT __, __, 355 F. Supp. 3d. 1336, 1343 (2019)
(“NEXTEEL I”). For the following reasons, the court sustains in part and remands in part the
Remand Redetermination.
PROCEDURAL HISTORY
The court presumes familiarity with the facts of this case. See NEXTEEL I, 355 F. Supp.
3d at 1344–52, 1357–58, 1360–61. In NEXTEEL I, the court considered seven Rule 56.2
motions for judgment on the agency record and fourteen issues presented by the Parties. See id.
at __, 355 F. Supp. 3d at 1343–44. The court sustained in part and remanded in part
Commerce’s Final Results. Id. at 1344, 1364. Consolidated Plaintiff SeAH Steel Corporation
(“SeAH”) and Defendant-Intervenors Maverick Tube Corporation, TMK IPSCO, Vallourec Star,
L.P., Welded Tube USA, and United States Steel Corporation filed motions for reconsideration
of the court’s decision in NEXTEEL I as to SeAH’s ocean freight expenses, Commerce’s
application of differential pricing analysis, and the particular market situation adjustment. See,
43 CIT __, __, __ F. Supp. 3d __, __, Consol. Court No. 17-00091, 2019 WL 2218739, at *1
(CIT May 21, 2019) (“NEXTEEL II”). The court denied both motions for reconsideration. Id. at
*4.
Commerce filed its Remand Redetermination on April 2, 2019. See Remand
Redetermination. Plaintiff NEXTEEL Co., Ltd. (“NEXTEEL”) and Plaintiff Intervenor Hyundai
Steel Company (“Hyundai Steel”) filed comments. Comments of NEXTEEL and Hyundai Steel
in Support of the U.S. Dep’t of Commerce’s Final Results of Redetermination Pursuant to Ct.
Consol. Court No. 17-00091 Page 4
Remand, May 2, 2019, ECF No. 174 (“NEXTEEL and Hyundai Steel Br.”). Consolidated
Plaintiff AJU Besteel Co., Ltd. (“AJU Besteel”) filed comments. Comments of Consolidated Pl.,
AJU Besteel Co., Ltd., on Commerce’s Remand Redetermination May 2, 2019, ECF No. 175
(“AJU Besteel’s Br.”). Plaintiff-Intervenor Husteel Co., Ltd. (“Husteel”) filed comments.
Husteel’s Comments on Redetermination Pursuant to Ct. Remand Order, May 2, 2019, ECF No.
171 (“Husteel Br.”). SeAH filed comments. Comments of SeAH Steel Corp. on Commerce’s
April 2, 2019, Redetermination, May 2, 2019, ECF No. 173 (“SeAH Br.”). 1 Defendant-
Intervenors TMK Ipsco, Vallourec Star, L.P., Welded Tube USA Inc., Maverick, and United
States Steel Corporation filed comments. Def.-Intervenors’ Comments on Commerce’s Remand
Results, May 2, 2019, ECF No. 172 (“Def.-Intervenors’ Br.”).
Defendant United States replied. Def.’s Resp. to Comments Regarding the Remand
Redetermination, Jun. 3, 2019, ECF No. 178 (Def.’s Reply Br.”). Maverick replied. Reply of
Def.-Intervenor Maverick Tube Corp. to Comments of SeAH Steel on Commerce’s Final Results
of Redetermination Pursuant to Ct. Remand, Jun. 3, 2019, ECF No. 179 (“Maverick’s Reply
Br.”). NEXTEEL and Hyundai Steel replied. Reply of NEXTEEL and Hyundai Steel to Def.-
Intervenors’ Comments on the U.S. Dep’t of Commerce’s Final Results of Redetermination
Pursuant to Ct. Remand, Jun. 3, 2019, ECF No. 180 (“NEXTEEL’s and Hyundai’s Reply Br.”).
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) (2012) and 28 U.S.C.
§ 1581(c), which grant the court the authority to review actions contesting the final results of an
1
SeAH submitted comments requesting that the court remand the dumping margin recalculation
issue as to SeAH’s ocean freight costs. The court considers the issue moot following the court’s
ruling in NEXTEEL II. See 43 CIT __, __, __ F. Supp. 3d __, __, Consol. Court No. 17-00091,
2019 WL 2218739, *1.
Consol. Court No. 17-00091 Page 5
administrative review of an antidumping duty order. The court will uphold Commerce’s
determinations, findings, or conclusions unless they are unsupported by substantial evidence on
the record or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
ANALYSIS
I. Particular Market Situation
During the initial administrative proceedings, Commerce did not find the existence of a
particular market situation in its preliminary results, but later relied on the same administrative
record to reverse its position and conclude that a particular market situation existed in the final
results. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1345–46. The court concluded that
Commerce’s determination was unsupported by substantial evidence and instructed Commerce
on remand to remove its finding of a particular market situation from its antidumping duty
calculations. See id. at __, 355 F. Supp. 3d at 1349–51.
On remand, Commerce recalculated the dumping margin for SeAH, NEXTEEL, and the
non-examined companies under protest. Remand Redetermination 5–6, 23. Commerce did not
apply the particular market situation adjustment in the recalculated margins. Id. 2
Defendant-Intervenors argue that the Remand Redetermination is unsupported by
substantial evidence and that a second remand is warranted. Def.-Intervenors’ Br. 1–2.
Defendant counters that Commerce complied with the court’s instructions, Commerce could not
have reached a different result on the basis of a party’s comments, and Defendant-Intervenors
2
In NEXTEEL I, the court did not reach the issue of Commerce’s adjustment of NEXTEEL’s
input costs based on a separate administrative proceeding that resulted from Commerce’s finding
of a particular market situation. See NEXTEEL I, 43 CIT __, __, 355 F. Supp. 3d. at 1351.
Because Commerce removed the particular market situation adjustment on remand, Commerce
recalculated NEXTEEL’s margins, and NEXTEEL requests that the court sustain the Remand
Redetermination as to particular market situation, the court considers this issue moot. See
Remand Redetermination 6; NEXTEEL and Hyundai Steel Br. 7.
Consol. Court No. 17-00091 Page 6
already sought reconsideration of the particular market situation issue. Def.’s Reply Br. 5–7; see
also NEXTEEL II, 43 CIT at __, __ F. Supp. 3d at ___, 2019 WL 2218739, at *1. Husteel and
AJU Besteel agree that Commerce’s Remand Redetermination complies with the court’s remand
instructions and request that the court affirm the Remand Redetermination as to the particular
market situation issue. Husteel Br. 2; AJU Besteel Br. 1–2.
Defendant-Intervenors’ arguments are unpersuasive. First, Defendant-Intervenors argue
that Commerce’s removal of a particular market situation adjustment is unsupported by
substantial evidence. Def.-Intervenors’ Br. 6–7. To the contrary, in the underlying
administrative proceeding, Commerce found that the record did not support any of Maverick’s
four allegations of a particular market situation in Korea. See NEXTEEL I, 43 CIT at __, 355 F.
Supp. 3d at 1349–51 (citing Department’s Memorandum Pertaining to Maverick’s Particular
Market Situation Allegations, PD 531, bar code 3545522-01 (Feb. 22, 2017)). Defendant-
Intervenors fail to point to any evidence to support Defendant-Intervenors’ contention that
Commerce’s decision on remand to remove the particular market situation adjustment is
unsupported by substantial evidence. See Def.-Intervenors’ Br. 1–2.
Second, Defendant-Intervenors’ arguments regarding the court’s instructions to
Commerce as to particular market situation were briefed when Defendant-Intervenors sought
reconsideration of the court’s opinion. See NEXTEEL II, 43 CIT at __, __ F. Supp. 3d at __,
2019 WL 2218739, at *3–4, *8–10. Defendant-Intervenors do not identify any arguments that
would be raised in comments to Commerce that Defendant-Intervenors did not raise in their
motion for reconsideration or other briefing before Commerce or this court. See Def.-
Intervenors’ Br. 5–6.
Consol. Court No. 17-00091 Page 7
Because Commerce recalculated the dumping margin for SeAH, NEXTEEL, and the
non-examined companies without applying the particular market situation adjustment in the
recalculated margins, the court concludes that Commerce’s Remand Redetermination is
consistent with the court’s remand order and opinion in NEXTEEL I as to the issue of particular
market situation. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1364.
II. Classification of Proprietary SeAH Products
In NEXTEEL I, the court addressed Commerce’s decision to combine SeAH’s
proprietary OCTG under reporting code 075 with reporting code 080. See 43 CIT at __, 355 F.
Supp. 3d at 1357–58. During the investigation, Commerce’s initial questionnaire asked SeAH to
report a separate reporting code for proprietary grades of OCTGs that were not listed in the
American Petroleum Institute (“API”) Specification for Casing and Tubing (“API Specification
5CT”). See Remand Redetermination 6; see also Initial Questionnaire, PR 100, bar code
3441771-01 (Feb. 12, 2016) (“Initial Questionnaire”). SeAH informed Commerce that SeAH
sold three proprietary grades of OCTG in the United States during the period of review that had
“the same tensile strength required by the N-80 specification but is not heat treated (by
normalization or by quenching-and-tempering) in the manner required by the N-80 norms.”
SeAH’s Initial Section B–E Response at 8 n.4, PD 140, bar code 3454399-02 (Mar. 31, 2016)
(“SeAH’s Initial Section B–E Response”). In the Final Results, Commerce combined SeAH’s
reported code 075 with code 080. See Issues and Decision Memorandum for the Final Results of
the 2014-2015 Administrative Review of the Antidumping Duty Order on Certain Oil Country
Tubular Goods from the Republic of Korea, 95–97, A-580-870, ECF No. 58–2 (Apr. 17, 2017)
(“Final IDM”). Commerce found that because SeAH’s proprietary OCTG products shared the
same mechanical properties as OCTG under reporting code 080 (i.e., tensile and hardness
Consol. Court No. 17-00091 Page 8
requirements), the goods should be grouped together and that “[a]ny differences between these
grades were already captured in other product characteristics.” Id. at 96.
The court determined in NEXTEEL I that Commerce did not distinguish meaningfully
between a product’s physical characteristics and production process in the Final Results and that
Commerce did not address evidence on the record adequately in making its determination.
NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1358. The court concluded that Commerce’s
classification of SeAH’s proprietary OCTG products was unsupported by substantial evidence.
Id.
On remand, Commerce explained that the model match methodology used to determine
dumping margins in this action contained a hierarchy of criteria designed to reflect differences
between products, and that Commerce ranked those differences in order of importance. See
Def.’s Reply Br. 7–8. The more important matching characteristics were listed higher than the
less important criteria in the hierarchy. Remand Redetermination 7. Commerce ranked physical
characteristics (such as grade) above production processes (such as heat treatment). Id. at 7–8.
In the hierarchy, grade was the third-highest product characteristic, and heat treatment was the
ninth-highest. Id.; see also Initial Questionnaire B-6–B-12. Commerce noted that the absence of
the heat treatment process was the distinguishing characteristic between API Specification 5CT
grade code N-80 products and SeAH’s proprietary products. Remand Redetermination 7. Under
the model match hierarchy, the distinguishing characteristic of heat treatment was captured by
the ninth-highest criteria. Id. Commerce assessed that the distinction between the physical
characteristics and production process stemmed from the effect of those criteria on the products’
performance capabilities. Id. at 7–10; see also id. at 8 (identifying that “[b]ecause OCTG are
used in the well and, thus, must withstand significant internal and external pressures at various
Consol. Court No. 17-00091 Page 9
depths, the key physical properties, such as tensile strength and hardness, are essential to
determining the capabilities of a particular OCTG product”) (internal quotation omitted).
Commerce concluded that it was not logical to create a grade distinction at the third-level of the
model match hierarchy for heat treatment because heat treatment was captured by the ninth-
highest level. Id.
Addressing the record on remand, Commerce identified that SeAH’s proprietary products
“offered higher strength levels than [API Specification 5CT grade code] J-55 or K-55, equivalent
with N-80 grade products” and had “the same mechanical properties (i.e., tensile strength and
hardness) required by the N-80 specification, which [had] the assigned code 080.” Id. at 7–10
(citing Administrative Review of the Antidumping Order on Oil Country Tubular Goods from
Korea – Case Brief of SeAH Steel Corporation, 10–11, bar code 3541806-01 (Feb. 9, 2017))
(internal quotations omitted); see also Administrative Review of the Antidumping Order on Oil
Country Tubular Goods from Korea – Case Brief of SeAH Steel Corporation, 11, bar code
3541806-01 (Feb. 9, 2017); SeAH’s Initial Section B–E Response 8, 55–56. Commerce noted
that “SeAH stated that it developed its proprietary grades specifically to compete with N-80
grade products and upgradeable L-80 products in the North American market, but without going
through the heat treatment process.” Remand Redetermination 8; see also SeAH Steel’s
Response to July 1 Supplemental Questionnaire, P.D. 253 (Jul. 29, 2016) at 11 n.6.
SeAH argues that Commerce’s Remand Redetermination does not correctly classify
SeAH’s proprietary products as API Specification 5CT grade code N-80 based on the
mechanical properties of the pipe. SeAH Br. 2–5. SeAH contends that under the API grading
criteria, it would be possible for a particular pipe to be categorized under multiple grade codes
based on mechanical properties such as yield strength and tensile strength, if heat treatment is not
Consol. Court No. 17-00091 Page 10
considered. Id. at 4–5. SeAH also asserts that the stencil on the OCTG product, which identifies
the grade of the pipe, constitutes a physical characteristic of the pipe. SeAH Br. 5–6.
Defendant counters that the model match hierarchy employed in this case was adopted to
compare products with similar characteristics for the purpose of determining the dumping
margin. See Def.’s Reply Br. 7–8, 10; Remand Redetermination 6–9. Defendant contends that
the model match hierarchy does not equate tensile strength with grade, and that the API
standards are designed to establish specifications for certain products, not compare products with
similar physical characteristics. See Def.’s Reply Br. 11–12. Defendant also counters that
stenciling is not a physical characteristic because if the stencil is required, then SeAH would not
create non-API grade proprietary products to compete with API grade code N-80 products.
The court is not persuaded by SeAH’s arguments. First, while API Specification 5CT
may be informative, it is not controlling as to the methodology employed by Commerce. See
Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1044 (1996). 3 Second, Defendant’s model
match hierarchy did not classify SeAH’s products within the precise meaning of the API
Specification 5CT. Commerce’s questionnaire asked SeAH to report OCTG product grades and
provided a reference chart to allow conversion between API Specification 5CT grade code N-80
and Commerce’s reporting code 080. Initial Questionnaire 9. For proprietary products not
fitting within the API Specification 5CT, the Initial Questionnaire directed the creation of a
separate reporting code along with technical documentation describing how the additional grades
compared to Commerce’s reporting codes and API Specification 5CT. Id.
3
See also SeAH’s Section A Questionnaire Resp., API Specification 5CT, App’x A–10, PR 130
(Mar. 18, 2016) (“API publications necessarily address problems of a general nature. . . . API
publications are published to facilitate the broad availability of proven, sound engineering and
operating practices. . . . Users of this specification should not rely exclusively on the information
contained in this document.”).
Consol. Court No. 17-00091 Page 11
Because Commerce’s additional explanation of the record supports Commerce’s decision
to combine SeAH’s proprietary OCTG under reporting code 075 with 080, the court concludes
that Commerce’s model match hierarchy distinguishes between a product’s physical
characteristics and production process and that Commerce’s Remand Redetermination is
supported by substantial evidence. See NEXTEEL I, 43 CIT at __, 355 F. Supp. 3d at 1357–58;
Fujitsu Gen., 88 F.3d at 1044. The court affirms Commerce’s Remand Redetermination as to
Commerce’s classification of SeAH’s proprietary products.
III. Deduction of General and Administrative Expenses as U.S. Selling Expenses
In the Final Results, Commerce deducted general and administrative (“G&A”) expenses
from constructed export price (“CEP”) related to resold United States products for SeAH’s U.S.
affiliate Pusan Pipe America Inc. (“PPA”). See Remand Redetermination at 11–12; Final IDM
at 6, 87–88. Commerce explained that “[b]ecause PPA’s G&A activities support the general
activities of the company as a whole, including its sales and further manufacturing functions of
all products,” Commerce applied the “G&A ratio to the total cost of further manufactured
products . . . as well as to the cost of all resold products.” Final IDM at 87–88. The court noted
that Commerce’s explanation did not clarify why it deducted PPA’s G&A expenses for resold
products and did not clarify how Commerce determined that it would apply all of PPA’s G&A
expenses to resold products. NEXTEEL I, 355 F. Supp. 3d. at 1360–61. The court concluded in
NEXTEEL I that Commerce’s decision to deduct G&A expenses in the Final Results was
unsupported by substantial evidence on the record and remanded this issue for clarification or
reconsideration of Commerce’s methodology. Id. at 1361.
On remand, Commerce explained that “Commerce did not apply ‘all’ of PPA G&A
expenses to directly resold products” and “Commerce allocated PPA G&A expenses
Consol. Court No. 17-00091 Page 12
proportionally to all of the products PPA sold (i.e., products which PPA directly resold and
products PPA further processed and then resold).” Remand Redetermination at 11–12. For
further manufactured products, Commerce “applied PPA’s G&A expense ratio to the total cost of
further manufacturing, plus the cost of production . . . of imported OCTG pipe that was further
manufactured, and [Commerce] included the amount as further manufacturing under 19 U.S.C.
§ 1677a(d)(2).” Id. at 14. Commerce also “applied PPA’s G&A expense ratio to the [cost of
production] of the imported OCTG for products not further manufactured and included the
amount as indirect selling expenses under 19 U.S.C. § 1677a(d)(1)(D).” Id.
An antidumping duty represents the amount by which the normal value of the
merchandise exceeds its export price or CEP. 19 U.S.C. § 1673. CEP is the price at which the
subject merchandise is first sold in the United States by a seller affiliated with the producer or
exporter to a non-affiliated purchaser. 19 U.S.C. § 1677a(b). When calculating CEP, Commerce
must make adjustments for certain expenses. Id.; 19 U.S.C. § 1677a(d). Under 19 U.S.C.
§ 1677a(d)(2), Commerce is directed to reduce CEP by “the cost of any further manufacture or
assembly (including additional material and labor). . . .” 19 U.S.C. § 1677a(d)(2). Commerce
also must reduce the constructed export price by:
(1) the amount of any of the following expenses generally incurred by or for the
account of the producer or exporter, or the affiliated seller in the United States,
in selling the subject merchandise (or subject merchandise to which value has
been added)—
(A) commissions for selling the subject merchandise in the United States;
(B) expenses that result from, and bear a direct relationship to, the sale, such
as credit expenses, guarantees and warranties;
(C) any selling expenses that the seller pays on behalf of the purchaser; and
(D) any selling expenses not deducted under subparagraph (A), (B), or (C).
Consol. Court No. 17-00091 Page 13
19 U.S.C. § 1677a(d)(1)(A)–(D).
SeAH argues that Commerce’s methodology is inconsistent with 19 U.S.C. § 1677a(d),
that Commerce may not reclassify G&A expenses as selling expenses, that Commerce does not
explain why G&A expenses may be reclassified as indirect selling expenses, and that
Commerce’s treatment of G&A expenses as indirect selling expenses is not consistent with
Commerce’s treatment of home-market G&A expenses. SeAH Br. at 9–12.
Commerce counters that G&A expenses can be treated as indirect selling expenses when
reselling activity occurs, and all G&A expenses can be treated as further manufacturing expenses
when further manufacturing activity occurs. Remand Redetermination at 22; Def.’s Reply Br.
14. Commerce supports its application of G&A expenses as selling expenses in this case
because “PPA, SeAH’s affiliated reseller in the United States, employs individuals responsible
for overseeing, coordinating, and supporting sales of both further manufactured and non-further
manufactured products.” Def.’s Reply Br. 14. Commerce does not provide support for this
proposition. Id.; see also SeAH Br. at 9–12. Based on that proposition, Commerce concludes
that “PPA’s G&A activities support the general activities of the company, encompassing the sale
and further manufacture of products, and the sale of non-further manufactured products.”
Remand Redetermination at 14. Commerce’s explanation on remand does not identify what
record evidence supports treatment of G&A expenses as selling expenses. Commerce also
responds that treatment of G&A expenses as indirect selling expenses was consistent with its
treatment of home-market G&A expenses because Commerce did not calculate a CEP offset in
this case. Def.’s Reply Br. at 16.
Commerce’s explanation on remand does not explain adequately what evidence
specifically supports the treatment of G&A expenses as selling expenses or why Commerce may
Consol. Court No. 17-00091 Page 14
treat G&A expenses as selling expenses. See also Final IDM 87–88; Issues and Decision
Memorandum for Certain Oil Country Tubular Goods from the Republic of Korea, 12, A-580-
870 (Oct. 5, 2016) (preliminary results), available at https://enforcement.trade.gov/
frn/summary/korea-south/2016-24800-1.pdf (last visited September 4, 2019). The court
concludes that Commerce’s Remand Redetermination as to the deduction of G&A as selling
expenses is not supported by substantial evidence on the record. The court remands this issue for
Commerce to provide additional clarification of Commerce’s calculation of CEP as to PPA,
further explanation of why Commerce may treat G&A expenses as selling expenses as to PPA,
and record evidence support for the treatment of PPA’s G&A expenses as selling expenses.
CONCLUSION
For the foregoing reasons, the court concludes that:
1. Commerce’s finding of a particular market situation and dumping margin calculation
for non-examined companies is supported by substantial evidence;
2. Commerce’s classification of proprietary SeAH products is supported by substantial
evidence;
3. Commerce’s decision to deduct SeAH’s general and administrative expenses as
selling expenses is unsupported by substantial evidence.
Upon consideration of all papers and proceedings in this action, it is hereby
ORDERED that Commerce shall file its remand determination on or before November 4,
2019; and it is further
ORDERED that Commerce shall file the administrative record on or before November
18, 2019; and it is further
Consol. Court No. 17-00091 Page 15
ORDERED that Parties’ comments in opposition to the remand determination shall be
filed on or before December 4, 2019; and it is further
ORDERED that Parties’ comments in support of the remand determination shall be filed
on or before January 3, 2020; and it is further
ORDERED that the Joint Appendix shall be filed on or before January 10, 2020.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 4, 2019
New York, New York