Nucor Tubular Prods. Inc. v. United States , 2023 CIT 104 ( 2023 )

Slip Op. 23-104
UNITED STATES COURT OF INTERNATIONAL TRADE
NUCOR TUBULAR PRODUCTS
INC.,
Plaintiff,
v.
UNITED STATES,
Before: Jennifer Choe-Groves, Judge
Defendant,
Court No. 21-00543
and
PRODUCTOS LAMINADOS DE
MONTERREY S.A. DE C.V.,
PROLAMSA, INC., AND
MAQUILACERO S.A. DE C.V.,
Defendant-Intervenors.
OPINION AND ORDER
[Sustaining the remand determination of the administrative review by the U.S.
Department of Commerce in the antidumping duty investigation of heavy walled
rectangular welded carbon steel pipes and tubes from Mexico.]
Dated: July 19, 2023
Alan H. Price, Robert E. DeFrancesco, III, and Jake R. Frischknecht, Wiley Rein
LLP, of Washington, D.C., for Plaintiff Nucor Tubular Products, Inc.
Claudia Burke, Assistant Director, and Kara M. Westercamp, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of
Court No. 21-00543 Page 2
Washington, D.C., 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 on the brief was Ayat Mujais, Attorney,
International Office of the Chief Counsel for Trade Enforcement & Compliance,
U.S. Department of Commerce.
David E. Bond, Allison J.G. Kepkay, and C. Alex Dilley, White & Case, LLP, of
Washington, D.C., for Defendant-Intervenors Productos Laminados de Monterrey
S.A. de C.V. and Prolamsa, Inc.
Diana Dimitriuc Quaia, John M. Gurley, and Yun Gao, ArentFox Schiff LLP, of
Washington, D.C., for Defendant-Intervenor Maquilacero S.A. de C.V.
Choe-Groves, Judge: This action concerns the import of heavy walled
rectangular welded carbon steel pipes and tubes from Mexico, subject to the final
affirmative determination in an antidumping duty investigation by the U.S.
Department of Commerce (“Commerce”). Heavy Walled Rectangular Welded
Carbon Steel Pipes and Tubes from Mexico (“Final Results”), 86 Fed. Reg. 41,448(Dep’t of Commerce Aug. 2, 2021) (final results of antidumping duty
administrative review; 2018–2019), and accompanying Issues and Decision Mem.
(“Final IDM”), ECF No. 26-2.
Before the Court are the Final Results of Redetermination Pursuant to Court
Order (“Remand Redetermination”), ECF No. 52-1, which the Court ordered in
Nucor Tubular Products Inc. v. United States (“Nucor I”), 47 CIT __, 619 F. Supp.
3d 1279, 1287 (2023). Defendant-Intervenor Maquilacero S.A. de C.V.
(“Maquilacero”) filed Defendant-Intervenor Maquilacero S.A. de C.V.’s
Court No. 21-00543 Page 3
Comments in Opposition to Remand Redetermination. Def.-Interv.’s Cmts. Opp’n
Remand Redetermination (“Maquilacero’s Cmts. Opp’n”), ECF No. 54.
Defendant United States (“Defendant”) filed Defendant’s Response to Comments
on Remand Redetermination. Def.’s Resp. Cmts. Remand Redetermination
(“Def.’s Resp. Cmts.”), ECF No. 55. Plaintiff Nucor Tubular Products Inc.
(“Nucor”) filed Plaintiff Nucor Tubular Product Inc.’s Comments in Support of
Remand Redetermination. Pl.’s Cmts. Supp. Remand Redetermination (“Nucor’s
Cmts. Supp.”), ECF No. 56. Defendant-Intervenors Productos Laminados de
Monterrey S.A. de C.V. and Prolamsa, Inc. (collectively, “Prolamsa”) did not file
comments in response to the Remand Redetermination. For the reasons discussed
below, the Court sustains the Remand Redetermination.
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case and recites the facts relevant to the Court’s review of the
Remand Redetermination. See Nucor I, 47 CIT at __, 619 F. Supp. 3d at 1282–83.
Commerce published its final determination in the antidumping duty
investigation of Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes
from Mexico. Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes
From Mexico, 81 Fed. Reg. 47,352 (Dep’t of Commerce July 21, 2016) (final
determination of sales at less than fair value). Commerce published its
Court No. 21-00543 Page 4
antidumping duty order in the Federal Register. Heavy Walled Rectangular
Welded Carbon Steel Pipes and Tubes From the Republic of Korea, Mexico, and
the Republic of Turkey, 81 Fed. Reg. 62,865 (Dep’t of Commerce Sept. 13, 2016)
(antidumping duty orders).
After receiving requests to conduct administrative reviews of the
antidumping duty order, Commerce initiated an administrative review of the
antidumping duty order covering heavy walled rectangular welded carbon steel
pipes and tubes from Mexico. Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 84 Fed. Reg. 61,011 (Dep’t of Commerce Nov. 12,
2019). Commerce selected Maquilacero and Prolamsa as mandatory respondents.
See Heavy Walled Rectangular Welded Carbon Steel Pipes and Tubes from
Mexico (“Preliminary Results”), 86 Fed. Reg. 7067, 7067 (Dep’t of Commerce
Jan. 26, 2021) (preliminary results of antidumping duty administrative review;
2018–2019) and accompanying Prelim. Decision Mem. (“Prelim. DM”), PR 191;
see also Commerce’s Mem. Re: Heavy Walled Rectangular Welded Carbon Steel
Pipes and Tubes from Mexico: 2018–2019 Antidumping Duty Administrative
Review: Resp. Selection Mem. (Dec. 19, 2019) at 1, PR 21.1 Commerce published
the preliminary results and supporting calculations. Preliminary Results, 86 Fed.
1Citations to the administrative record reflect the public record (“PR”) and public
remand record (“PRR”) document numbers filed in this case, ECF Nos. 45, 58.
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Reg. 7067; see also Commerce’s Mem. Re: Preliminary Results Margin
Calculation for Maquilacero S.A. de. C.V. (Jan. 15, 2021), PR 192. Commerce
published its Final Results and supporting calculations. Final Results, 86 Fed.
Reg. 41,448; Final IDM.
Nucor submitted ministerial error comments addressing the margin
calculations for both Prolamsa and Maquilacero. Pl.’s Ministerial Error Cmts.
(Aug. 2, 2021) (“Ministerial Error Comments”), PR 253. Commerce issued its
ministerial error determination. See Commerce’s Mem. Re: Ministerial Error
Allegations in the Final Results of the 2018–2019 Antidumping Duty
Administrative Review on Heavy Walled Rectangular Welded Carbon Steel Pipes
and Tubes from Mexico (“Ministerial Error Mem.”) (Aug. 20, 2021), PR 259.
Nucor challenged Commerce’s determinations in the Final Results regarding
Prolamsa and Maquilacero. Pl.’s R. 56.2 Mot. J. Agency R., ECF Nos. 32, 33, 34.
In Nucor I, the Court concluded that Commerce’s use of zeros in its cost
calculation regarding Maquilacero was ministerial in nature and that Nucor’s
comments challenging Commerce’s ministerial error were timely. Nucor I, 47 CIT
at __, 619 F. Supp. 3d at 1286. The Court granted Defendant’s request for remand
regarding the alleged double-conversion error for Prolamsa. Id. at 1286–87.
In the Remand Redetermination, Commerce determined that the Ministerial
Error Comments submitted by Nucor were timely. Remand Redetermination at 1–
Court No. 21-00543 Page 6
2. Commerce reviewed its calculations with respect to both Maquilacero and
Prolamsa and adjusted each company’s dumping margins. Id. at 2–3. On remand,
Commerce determined that the revised weighted-average dumping margin for
Prolamsa is 2.11% and the weighted-average dumping margin for Maquilacero is
3.48%. Id. at 3. Commerce determined that the revised rate for the non-selected
companies is 2.51%. Id. For the reasons set forth in this Opinion, the Court
sustains Commerce’s Remand Determination.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade 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 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 reviews
determinations made on remand for compliance with the Court’s remand order.
Ad Hoc Shrimp Trade Action Comm. v. United States, 38 CIT 727, 730, 992 F.
Supp. 2d 1285, 1290 (2014), aff’d, 802 F.3d 1339 (Fed. Cir. 2015).
Court No. 21-00543 Page 7
DISCUSSION
I. Maquilacero’s Quarterly Cost Methodology
Maquilacero challenges Commerce’s Remand Redetermination, arguing:
(1) the error that Nucor alleged regarding Commerce’s determination of normal
value in Maquilacero’s dumping margin calculation was not ministerial in nature;
(2) the error that Nucor alleged regarding Commerce’s determination of normal
value in Maquilacero’s dumping margin calculation was discoverable after
publication of the Preliminary Results; and (3) Commerce was not required to
correct the error that Nucor alleged regarding Commerce’s normal value
determination in Maquilacero’s dumping margin calculation. Maquilacero’s Cmts.
Opp’n at 1. Maquilacero contends that Commerce departed from its established
practice and applied a relaxed standard, contrary to 19 C.F.R. § 351.224(c)(1),
when Commerce “correct[ed] a ministerial error that existed in the Preliminary
Results but was only raised by Nucor for the first time after the Final Results were
issued.” Id. at 2. Maquilacero asserts that Commerce was not required to
recalculate the dumping margin with respect to Maquilacero, but only needed to
“provide adequate consideration to Nucor’s allegation.” Id.Defendant disagrees with Maquilacero that Commerce’s recalculation of
Maquilacero’s dumping margin was inappropriate, and argues that Nucor’s
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ministerial error allegation was timely and in line with the Court’s remand order.
Def.’s Resp. Cmts. at 8.
The Court notes that Maquilacero reiterates arguments that the Court
resolved in Nucor I. See generally Maquilacero’s Cmts. Opp’n; see also Nucor I,
47 CIT __, 619 F. Supp. 3d 1279. First, regarding Maquilacero’s contention that
the errors were not ministerial in nature, this Court in Nucor I addressed ministerial
errors and held that the errors alleged by Nucor were ministerial in nature. Nucor
I, 47 CIT at __, 619 F. Supp. 3d at 1285–86. Second, regarding Maquilacero’s
contention that the errors were discoverable after the Preliminary Results, this
Court held that the errors alleged by Nucor were not discoverable until after the
publication of the Final Results. Id. at 1286. This Court held that “[b]ecause the
unintentional errors became apparent only in the Final Results, the Court concludes
that . . . Nucor was permitted to address new ministerial errors that arose after
Commerce completed its constructed cost calculations for normal value in the
Final Results.” Id. Because Maquilacero has not convinced the Court that
Commerce violated an established practice, and the Court previously held that
Nucor’s Ministerial Error Comments were timely submitted, the Court is not
persuaded by Maquilacero’s contention that Commerce applied a “relaxed standard
that conflicts with . . . [an established practice under] 19 C.F.R. § 351.224(c)(1).”
Maquilacero’s Cmts. Opp’n at 2. Third, Maquilacero contends that Commerce
Court No. 21-00543 Page 9
was not required to correct the ministerial errors because “the Court’s remand
order did not expressly direct Commerce to recalculate Maquilacero’s margin.” Id.
at 6. This Court remanded the Final Results and instructed Commerce to
reconsider its calculations consistent with the Court’s opinion. Nucor I, 47 CIT at
__, 619 F. Supp. 3d at 1287. On remand, Commerce determined that the errors
alleged by Nucor were ministerial in nature and that Nucor’s ministerial error
allegations were timely submitted. Remand Redetermination at 1–2, 8–10, 13–17.
Commerce reconsidered the substance of Nucor’s ministerial error allegations and
recalculated Maquilacero’s margin. Id. at 13–17. Based on the foregoing, the
Court concludes that Commerce’s Remand Redetermination is in accordance with
the law.
Maquilacero challenges Commerce’s Remand Redetermination as not
supported by substantial evidence. See Maquilacero’s Cmts. Opp’n at 4–5. In
calculating Maquilacero’s dumping margin, Commerce relied on Maquilacero’s
cost of production database submitted on September 10, 2020, in which
Maquilacero reported its hot-rolled coil cost for each quarter of the period of
review. Final IDM at 10; see also Commerce’s Mem. Re: Prelim. Results Margin
Calc. Maquilacero (“Maquilacero’s Prelim. Margin Calc. Mem.”) (Jan. 15, 2021)
at 1, PR 7; Commerce’s Mem. Re: Cost Prod. Constructed Value Calc.
Adjustments Prelim. Results Maquilacero (“Macuilacero’s Prelim. Cost Calc.
Court No. 21-00543 Page 10
Mem.”) (Jan. 15, 2021) at 1–2, PR 9. However, Commerce initially used
sequential values (i.e., .1, .2, .3 . . .) rather than Maquilacero’s reported quarterly
hot-rolled coil price data. Final IDM at 10–11. Nucor contested the use of
sequential values, and Commerce subsequently removed the sequential values,
inadvertently replacing them with zeros for the quarter immediately before the
period of review (i.e., Q0). See Nucor I, 47 CIT __, 619 F. Supp. 3d at 1284; see
also Pl.’s Ministerial Error Cmts.; Ministerial Error Mem. On remand, Commerce
conceded that it “did not intend to include pre-[period of review] window period
sales in [Commerce’s] full [period of review] averaging calculation.” Remand
Redetermination at 9. Commerce thus adjusted the cost recovery benchmark (an
average of all period of review quarterly costs, designed to evaluate whether sales
determined to be “below cost” in a particular quarter were “above cost” when
compared to the period of review average) by revising the programming language
that the Court previously held was responsible for the ministerial error, and instead
limited the quarters under consideration to only those within the period of review
(i.e., Q1–Q4). Id. at 10. On remand, Commerce eliminated the ministerial error
that was present in the Final Results, analyzing only the relevant cost data from the
period of review.
Pursuant to the Court’s remand order in Nucor I, Commerce was instructed
to reconsider the substance of Nucor’s timely submitted Ministerial Error
Court No. 21-00543 Page 11
Comments. Commerce made certain adjustments to address the deficiencies that
Nucor highlighted in its timely submitted Ministerial Error Comments. Id. at 10,
13–17. Commerce recalculated Maquilacero’s dumping margin and arrived at a
more accurate determination, based upon record evidence including Maquilacero’s
cost of production database during the relevant period of review. Id. at 10, 17.
The Court observes that the record evidence from Maquilacero’s cost of production
database and Commerce’s established quarterly cost methodology support
Commerce’s determination that corrections needed to be made to the formulas that
Commerce used in calculating Maquilacero’s dumping margin. Id. at 10, 13–17.
Commerce revised Maquilacero’s dumping margin from 0.00% to the new rate of
3.48%. Id. at 17.
Because Commerce corrected the ministerial errors present in the Final
Results by removing the inadvertent zeros within the calculation programming and
disregarding data from the period prior to the relevant period of review, the Court
concludes that Commerce’s Remand Redetermination with regard to Maquilacero
is supported by substantial evidence, in accordance with the law, and in
compliance with this Court’s remand order.
II. Prolamsa’s Currency Conversion
The Court granted Commerce’s request for remand regarding Commerce’s
calculation of Prolamsa’s dumping margin in the Final Results. Nucor I, 47 CIT at
Court No. 21-00543 Page 12
__, 619 F. Supp. 3d at 1286–87. On remand, Commerce determined that several
currency conversion mistakes occurred in Commerce’s calculation of the Final
Results. Remand Redetermination at 4–8. Commerce addressed each currency
conversion error by: (1) converting home market packing expenses and home
market inventory carrying costs to U.S. Dollars before calculating home market net
price; and (2) correcting the foreign unit dollar price equation to only convert the
level of trade adjustment and difference in merchandise adjustment variables into
U.S. Dollars. Id. at 7.
Commerce addressed the comments provided by interested parties and
revised its calculation formula to account for any remaining double conversion
errors. Id. at 8. Commerce agreed with Prolamsa that Commerce made certain
errors in Prolamsa’s margin calculation in the Draft Results of Redetermination.
Id. at 12; see also Prolamsa’s Cmts. Draft Results Redetermination Pursuant Court
Order (“Prolamsa’s Comments on Draft Remand Redetermination”) (Mar. 8,
2023), PRR 6. Commerce changed the formulas that it used to calculate
Prolamsa’s home market net price and foreign unit dollar price to eliminate the
double conversion errors. Remand Redetermination at 12–13. Commerce revised
Prolamsa’s dumping margin from 0.00% to the new rate of 2.11%. Id. at 17.
Prolamsa did not submit comments in opposition to Commerce’s Remand
Redetermination.
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Because Commerce addressed the double conversion errors first highlighted
by Nucor’s Ministerial Error Comments, and subsequently corrected the remaining
errors highlighted by Prolamsa’s Comments on Draft Remand Redetermination,
the Court concludes that the results of Commerce’s Remand Redetermination with
regard to Prolamsa are supported by substantial evidence, in accordance with the
law, and comply with this Court’s remand order.
CONCLUSION
For the foregoing reasons, the Court sustains the Final Results, 86 Fed. Reg.
41,448, as amended by the Remand Redetermination, ECF No. 52-1. Judgment
will issue accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: July 19, 2023
New York, New York