Prosperity Tieh Enter. Co. v. United StatesProsperity Tieh Enter. Co. v. United States
OPINION AND ORDER
[Remanding to the agency a determination in an antidumping duty investigation of certain corrosion-resistant steel products from Taiwan]
Dated: January 23, 2018
Kelly A. Slater, Appleton Luff Pte. Ltd., of Washington, D.C., for plaintiff Yieh Phui Enterprise Co., Ltd. With her on the brief were Jay Y. Nee and Edmund W. Sim.
Elizabeth A. Speck, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel was Michael T. Gagain, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.
Stephen A. Jones, King & Spalding, LLP, of Washington, D.C., for defendant-intervenor AK Steel Corp. With him on the brief was Daniel L. Schneiderman.
Alan H. Price, Wiley Rein LLP, of Washington, D.C., for defendant-intervenor Nucor Corp. With him on the brief was Timothy C. Brightbill.
Roger B. Schagrin, Schagrin Associates, of Washington, D.C., for defendant-intervenors Steel Dynamics, Inc. and California Steel Industries, Inc.
John M. Herrmann, II, Kelley Drye & Warren, LLP, of Washington, D.C., for defendant-intervenor ArcelorMittal USA LLC.
Jeffrey D. Gerrish, Skadden Arps Slate Meagher & Flom, of Washington, D.C., for defendant-intervenor United States Steel Corp.
Stanceu, Chief Judge: In this consolidated action,1 plaintiffs contest an administrative decision issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department“) to conclude an antidumping duty investigation on certain corrosion-resistant steel products (“CORE“) from Taiwan (the “subject merchandise“).2 The court remands the determination to Commerce for further consideration and redetermination.
I. BACKGROUND
A. The Parties in this Litigation
Plaintiffs Prosperity Tieh Enterprise Co., Ltd. (“Prosperity“) and Yieh Phui Enterprise Co. Ltd. (“Yieh Phui“) are Taiwanese producers and exporters of CORE. AK Steel Corporation, Nucor Corporation, Steel Dynamics, Inc., California Steel Industries, Inc., ArcelorMittal USA LLC, and United States Steel Corporation were petitioners in the investigation and are each defendant-intervenors in this consolidated action (together, the “defendant-intervenors“).
Challenged in this litigation is Certain Corrosion-Resistant Steel Products From India, Italy, the People‘s Republic of China, the Republic of Korea and Taiwan: Amended Final Affirmative Antidumping Determination for India and Taiwan, and Antidumping Duty Orders, 81 Fed. Reg. 48,390 (Int‘l Trade Admin. July 25, 2016) (“Amended Final Determination“). The Amended Final Determination modified the Department‘s decision in Certain Corrosion-Resistant Steel Products From Taiwan: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances, in Part, 81 Fed. Reg. 35,313 (Int‘l Trade Admin. June 2, 2016) (“Final Determination“). The period of investigation (“POI“) was April 1, 2014 through March 31, 2015. Id. at 35,313.
C. Proceedings before Commerce
A petition filed in June 2015 sought an antidumping duty order on imports of CORE from Italy, India, China, Korea, and Taiwan. See Certain Corrosion-Resistant Steel Products From Italy, India, the People‘s Republic of China, the Republic of Korea, and Taiwan: Initiation of Less-Than-Fair-Value-Investigations, 80 Fed. Reg. 37,228 (Int‘l Trade Admin. June 30, 2015). Following initiation, Commerce selected Yieh Phui and Prosperity as the Taiwanese mandatory respondents for individual investigation. Selection of Respondents for the Antidumping Duty Investigation on Certain Corrosion-Resistant Steel Products from Taiwan at 4 (July 20, 2015) (P.R. Doc. 62).3
Commerce published a preliminary determination on CORE from Taiwan on January 4, 2016. See Certain Corrosion-Resistant Steel Products from Taiwan: Negative Preliminary Determination of Sales at Less Than Fair Value, 81 Fed. Reg. 72 (Int‘l Trade Admin. Jan. 4, 2016) (“Prelim. Determination“); see also Decision Memorandum for the Preliminary Determination in the Antidumping Duty Investigation of Certain Corrosion-Resistant Steel Products from Taiwan, A-583-856, (Dec. 22, 2015) (P.R. Docs. 262-263), available at https://enforcement.trade.gov/frn/summary/taiwan/2015-32761-1.pdf (last visited Jan. 18, 2018) (“Prelim. Decision Mem.“). In the Preliminary Determination, Commerce treated Yieh Phui and Synn Industrial Co., Ltd. (“Synn“) as a single entity (the “Yieh Phui/Synn” entity).4 Prelim. Decision Mem. at 4. Commerce did not include Prosperity within the Yieh Phui/Synn entity. Id. Commerce calculated a preliminary zero percent dumping margin for both Prosperity and the Yieh Phui/Synn entity and preliminarily determined that CORE from Taiwan was not being, and is not likely to be, sold in the United States at less than fair value. Prelim. Determination, 81 Fed. Reg. at 72-73.
In the Final Determination, Commerce found that CORE from Taiwan was being, or was likely to be, sold in the United States at less than fair value. Final Determination, 81 Fed. Reg. at 35,313; see also
Following a ministerial error allegation, Commerce published an amended final determination that increased the weighted-average dumping margin assigned to the Yieh Phui/Prosperity/Synn entity from 3.77% to 10.34%. Amended Final Determination, 81 Fed. Reg. at 48,391, 48,393.
II. DISCUSSION
A. Jurisdiction and Standard of Review
The court exercises jurisdiction according to section 201 of the Customs Courts Act of 1980, as amended,
B. Commerce Unlawfully Failed to Adjust the Prices in Home Market Sales for Rebates
Commerce determines an antidumping duty margin by comparing the normal value of the subject merchandise to the export price (or constructed export price) at which the subject merchandise is sold in the United States.
Use of price net of price adjustments. In calculating export price, constructed export price, and normal value (where normal value is based on price), the Secretary will use a price that is net of any price adjustment, as defined in
§ 351.102(b) , that is reasonably attributable to the subject merchandise or the foreign like product (whichever is applicable).
Yieh Phui and Synn provided their home market customers what they called “quantity rebates” or “purchase rewards rebates.” The terms and conditions for these rebates were not established prior to the time of sale. Rather, Yieh Phui and Synn would consider, on a customer-by-customer basis, the total quantity shipped, market conditions, and the potential for future orders in determining the rebates.
Yieh Phui claims that Commerce violated
In the Final Determination, Commerce disallowed monthly home market rebates reported by Yieh Phui and Synn. Final Decision Mem. at 20-24. Commerce based this conclusion, in part, on its finding that the terms of these rebates “were not fixed at or before the date of sale.” Id. at 21. Commerce explained that the Department “only adjust[s] normal value to account for rebates when the terms and conditions of the rebate are known to the customer prior to the sale and the claimed rebates are customer-specific.” Id. Commerce also based its decision to reject Yieh Phui‘s and Synn‘s reported rebate adjustments on a finding that these rebates were issued with the purpose of limiting antidumping duty liability. Id. at 21-22. In the Final Decision Memorandum, Commerce also indicated its disagreement with this Court‘s holding in Papierfabrik August Koehler AG v. United States, 38 CIT __, 971 F. Supp. 2d 1246 (2014) (”Koehler“). Id. at 22. In Koehler, this Court, interpreting
In this case, Commerce did not reach a finding that the rebates reported by Yieh Phui and Synn were not actually paid to the companies’ home market customers. Commerce did not question that the rebates were actually “reflected in the purchaser‘s net outlay,” see
In reaching the opposite conclusion, Commerce made a number of irrelevant findings, including that the terms of Yieh Phui‘s and Synn‘s home market rebates “were not established prior to shipment and invoicing.” Final Decision Mem. at 24. Similarly irrelevant is the Department‘s finding that neither company had any “established standards or policies, written or unwritten, that specify the amount and the possibility” of rebates. Id. at 23-24. The Department‘s finding that the home market rebates “could not have issued . . . without [antidumping] duty liability in mind” is also extraneous and irrelevant. Id. at 23. These findings are all directed to the wrong question. Under the regulations, the question is not whether the rebates were made according to a “program” that satisfied the various prerequisites Commerce identified in the Final Decision Memorandum, or whether they were made for a reason acceptable to Commerce, but whether the monthly rebates were actually reflected in purchasers’ net outlays.
In reaching conclusions from its findings, the Department‘s reasoning is erroneous in several respects. First, the Final Decision Memorandum misapplies the Department‘s regulations in declining to adjust the home market prices for the monthly rebates. As discussed above, Commerce did not conclude that the monthly rebates were not “reflected in the purchaser‘s net outlay” within the meaning of
The Preamble explained that
The Preamble further explained that Commerce took “several steps aimed at alleviating” confusion concerning the proposed
The Final Decision Memorandum misconstrues the language and the intent of the Preamble in concluding that “[w]hile the Department‘s regulations provide for post-sale price adjustments that are reasonably attributable to the subject merchandise, the Preamble indicates that exporters or producers should not be allowed ‘to eliminate dumping margins by providing price adjustments ‘after the fact.‘‘” Final Decision Mem. at 21-22 (quoting Final Rule, 62 Fed. Reg. at 27,344). The passage in the Preamble from which the Final Decision Memorandum drew this conclusion reads as follows:
One commenter suggested that, at least for purposes of normal value, the regulations should clarify that the only rebates Commerce will consider are ones that were contemplated at the time of sale. This commenter argued that foreign producers should not be allowed to eliminate dumping margins by providing “rebates” only after the existence of margins becomes apparent.
The Department has not adopted this suggestion at this time. We do not disagree with the proposition that exporters or producers will not be allowed to eliminate dumping margins by providing price adjustments “after the fact.” However, as discussed above, the Department‘s
treatment of price adjustments in general has been the subject of considerable confusion. In resolving this confusion, we intend to proceed cautiously and incrementally. The regulatory revisions contained in these final rules constitute a first step at clarifying our treatment of price adjustments. We will consider adding other regulatory refinements at a later date.
Final Rule, 62 Fed. Reg. at 27,344. No substantive amendments were made to the text of
regulations, the Preamble does not support the reasoning by which Commerce disregarded Yieh Phui‘s and Synn‘s monthly rebates.
Before the court, defendant and defendant-intervenors make a number of arguments in support of the Department‘s exclusion of Yieh Phui‘s and Synn‘s home market rebates, most of which parallel the erroneous reasoning of the Final Decision Memorandum. See Def.‘s Opp‘n to Pl.‘s and Consolidated Pl.‘s Mots. for J. upon the Agency R. 45-58 (Apr. 26, 2017), ECF Nos. 63 (conf.), 66 (public) (“Def.‘s Opp‘n“); Resp. Br. of Def.-Ints. in Opp‘n to Pls.’ Mot. for J. on the Agency R. 34-39 (Apr. 26, 2017), ECF Nos. 64 (conf.), 65 (public) (“Def.-Ints.’ Opp‘n“). First, defendant argues that the Department‘s regulations do not define the term “rebates” and that, accordingly, it is free to develop a reasonable interpretation to fill this gap. Def.‘s Opp‘n 50-51. This argument is specious because the definition of the term “rebate” is not the issue in this case. The applicable regulation,
Next, defendant and defendant-intervenors argue that Yieh Phui‘s reliance on this Court‘s decision in Koehler is incorrect. Def.‘s Opp‘n 52-54; Def.-Ints.’ Opp‘n 36. Before the court, Yieh Phui relies on Koehler to support its argument that Commerce acted unlawfully in failing to make downward adjustments in the starting prices Commerce used to determine normal value. Defendant and defendant-intervenors assert that Koehler conflicts with other decisions and that it was wrongly decided. Def.‘s Opp‘n 52-54; Def.-Ints.’ Opp‘n 36. In arguing that Koehler conflicts with other decisions, defendant directs the court to a pair of cases that were considered in Koehler. Def.‘s Opp‘n 53-54 (citing Koenig & Bauer-Albert AG v. United States, 22 CIT 574, 15 F. Supp. 2d 834 (1998), aff‘d in part, vacated on other grounds, 259 F.3d 1341 (Fed. Cir. 2001) and Nachi-Fujikoshi Corp. v. United States, 19 CIT 914, 890 F. Supp. 1106 (1995)). As explained in Koehler, both Koenig & Bauer-Albert AG and Nachi-Fujikoshi Corp. arose from administrative determinations made prior to the June 18, 1997 effective date of the final rule that instituted the versions of
Because the Department‘s decision in the Final Determination not to make downward adjustments to Yieh Phui‘s and Synn‘s home market sales prices to account for rebates granted to their home market customers violated its own regulations, Commerce must correct this error in the redetermination it reaches in response to this Opinion and Order.
C. The Department‘s Determination to “Collapse” Prosperity with the Yieh Phui/Synn Entity is Based on Certain Findings Not Supported by Substantial Evidence
Prosperity and Yieh Phui challenge the Department‘s decision to treat Prosperity as a single entity in combination with the Yieh Phui/Synn entity and thereby assign this entity a single antidumping duty margin in the Final Determination. Mot. of Pl. Prosperity Tieh Enterprise Co., Ltd. for J. upon the Agency R. 1, 2-3, 13-14, 15-25 (Dec. 15, 2016), ECF Nos. 54 (conf.), 55 (public) (“Prosperity‘s Br.“); Yieh Phui‘s Br. 1, 24-27; Pl. Prosperity Tieh‘s Reply in Supp. of its Mot. for J. upon the Agency R. 2-9 (May, 25, 2017), ECF Nos. 71 (conf.), 72 (public) (“Prosperity‘s Reply Br.“); Yieh Phui‘s Reply Br. 1-2, 11-13. As explained below, certain findings upon which Commerce relied in making the challenged decision are unsupported by substantial evidence on the record.
Treating two related entities as a single entity is referred to colloquially as “collapsing,” and is intended to address the possible manipulation of dumping margins by affiliated companies. See Viraj Grp. v. United States, 476 F.3d 1349, 1356 (Fed. Cir. 2007). The Department‘s regulations permit Commerce to treat affiliated producers as a single entity “where those producers have production facilities for similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities and the Secretary concludes that there is a significant potential for the manipulation of price or production.”
Commerce discussed its decision in a “Collapsing Memorandum,” in which it first determined that Prosperity, Yieh Phui, and Synn were all affiliated within the meaning of section 771(33) of the Tariff Act,
Commerce next considered whether “a significant potential for the manipulation of price or production” existed between the three companies. See
- The level of common ownership;
- The extent to which managerial employees or board members of one firm sit on the board of directors of an affiliated firm; and
- Whether operations are intertwined, such as through the sharing of sales information, involvement in production and pricing decisions, the sharing of facilities or employees, or significant transactions between the affiliated producers.
In evaluating the first factor identified in
Commerce next analyzed the second
Commerce then turned to the final factor in
Prosperity pursuant to a purchase and sale agreement during the POI. Id. Commerce calculated the percentage that these cold-rolling services represented of the “overall cold-rolling services Synn Industrial provided to all customers.” Id. Finally, Commerce noted the extent to which Synn‘s financial statements reflected sales to
Commerce found that the “[t]olling arrangements and purchase and sale agreements between Prosperity Tieh and Synn Industrial [were] indicative” of intertwined operations. Id. at 7. Commerce concluded that Prosperity, “by means of ownership, overlapping management, and intertwined operations between itself and Synn Industrial, [was] in a position to manipulate price or production.” Id. at 8.
Prosperity challenges the Department‘s decision to collapse Prosperity with the Yieh Phui/Synn entity by arguing, in part, that certain of the Department‘s “intertwined operations” findings are not supported by substantial evidence. Prosperity‘s Br. 21; Prosperity‘s Reply Br. 7-9. Prosperity points to record evidence that certain facts relied on by Commerce were based on data for calendar year 2014, rather than on data covering the POI (April 1, 2014 through March 31, 2015), as the Department had claimed. Prosperity‘s Br. 21; Prosperity‘s Reply Br. 7-9. Prosperity also highlights record evidence showing that the entirety of the cold-rolling services provided by Synn for Prosperity took place prior to the POI, rather than during it, as Commerce had concluded in the Collapsing Memorandum. Prosperity‘s Br. 21; Prosperity‘s Reply Br. 8.
Regarding the timing of the cold-rolling services that Synn performed for Prosperity, defendant admits that Commerce incorrectly stated in the Collapsing Memorandum that the cold-rolling services Synn provided for Prosperity occurred during the POI. Def.‘s Opp‘n 43
(acknowledging that “Prosperity is correct that this figure did not pertain to the period of investigation“). Defendant also acknowledges that the data detailing Synn‘s sales to Prosperity and its purchases from Prosperity were for calendar year 2014, rather than for the POI, as found by Commerce. Id. at 44. Defendant further acknowledges that had Commerce examined the purchases and sales that took place between Synn and Prosperity during the POI rather than during the 2014 calendar year, the significance, in percentage terms, of these purchases and sales “may have been lower.” Id. at 44-45. While defendant acknowledges only that the significance of the purchases and sales “may have been lower during the overall period of investigation,” id., record evidence demonstrates the purchases and sales between Synn and Prosperity were in fact less significant over the POI than over calendar year 2014. See Prosperity‘s Br. 21. Thus it cannot be said that using calendar year data, as opposed to POI data, had no potential to affect the final determination.
Defendant argues that, despite the errors it acknowledges, the court should rule that the substantial record evidence still supports the Department‘s collapsing determination. Def.‘s Opp‘n 33-45. Defendant argues that “even disregarding the information that was outside the period of investigation, there was significant evidence supporting intertwined operations on the record.” Id. at 40-41 (citing Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir. 1987)). The court disagrees. Because this Court, like any court reviewing an agency action, must conduct its review according to the findings of fact and the reasoning the agency puts forth, the Department‘s collapsing decision cannot be sustained according to the applicable standard of review. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Because the collapsing decision was based on erroneous findings of fact, the court must order Commerce to reconsider that decision and reach a new determination based on findings that are supported by substantial evidence on the record of the investigation.
Through questionnaires issued during the investigation, Commerce sought to ascertain the physical characteristics of the respondents’ subject merchandise, including the yield strength of each individual product. See generally Initial Antidumping Duty Questionnaire for Prosperity Tieh Enterprise Co., Ltd. at B-11 to B-12, C-9 to C-10 (Aug. 7, 2015) (P.R. Doc. 97); see also Memorandum Regarding Correction to Yield Strength Field of Initial Questionnaire (Aug. 14, 2015) (P.R. Doc. 102) (“Yield Strength Mem.“). Commerce used the reported physical characteristics in applying product-specific model-matching criteria that it then used when comparing U.S. price to normal value.
Under section 776(a)(2) of the Tariff Act,
- withholds information that has been requested by the administering authority under this subtitle,
- fails to provide such information by the deadlines for submission of the information or in the form and manner requested, subject to subsections (c)(1) and (e) of section 1677m of this title,
- significantly impedes a proceeding under this subtitle, or
- provides such information but the information cannot be verified as provided in section 1677m(i) of this title[.]
verification, that PT [i.e., Prosperity] failed to submit the requested information within the applicable time limits, and failed to provide information that could be verified.“).10
This issue arose from the way in which Prosperity classified, within one of six categories defined in the Department‘s questionnaire, certain of its CORE products according to yield strength. Id. at 11-19. Commerce interpreted its own instructions to mean that respondents must classify products according to minimum yield strength as specified by an applicable industry standard, where one pertained to the product being reported. See id. at 13. The reporting of yield strength was to be in units of pounds per square inch (“psi“), converted where necessary. See Yield Strength Mem. at 1-2. At verification, Commerce found that Prosperity had misclassified certain of its products in reporting sales in the databases by placing these
Commerce additionally found that Prosperity did not cooperate to the best of its ability in responding to the Department‘s information request and, based on that finding, used an adverse inference under
Before the court, Prosperity claims that the Department‘s finding that Prosperity misclassified the yield strength of certain sales of CORE is not supported by substantial evidence. Prosperity‘s Br. 25-29; Prosperity‘s Reply Br. 10-16. Prosperity argues that Commerce, therefore, did not have authority under
Responding to the Department‘s questionnaire, Prosperity submitted information regarding its U.S. market and home market sales of CORE. See Prosperity Tieh Enterprise Co., Ltd.‘s Sections B-D Questionnaire Responses (Oct. 14, 2015) (P.R. Docs. 136-40) (C.R. Docs. 95-113). In its questionnaire responses, Prosperity explained the Product Coding System that it used in the normal course of business. Id. at B-10 to B-11, C-6 to C-7 (explaining that the Product Coding System is used to designate various product characteristics, including the mechanical characteristics (such as yield strength), of Prosperity‘s production).11 Prosperity also stated that
1. Record Evidence Does Not Support the Department‘s Finding that Prosperity Misreported the Yield Strength of Certain Sales of CORE
Resolving the issue before the court requires examination of the instructions Commerce issued to Prosperity to ascertain whether the Department‘s factual finding that Prosperity “misreported” yield strength is a valid one, i.e., one supported by substantial record evidence. The court concludes that it is not a valid finding. The Department‘s instructions do not preclude a respondent from reporting (i.e., “coding“) yield strength according to manufacturer‘s specifications rather than an external, established industry standard. To illustrate this point, the court sets forth below the instructions Commerce issued pertaining to the reporting of yield strength and analyzes each paragraph therein.
FIELD NUMBER 3.7: YIELD STRENGTH
FIELD NAME: CSTRENH/U
DESCRIPTION: Yield Strength
1 = Minimum specified yield strength under 25,000 psi
3 = Minimum specified yield strength of >= 25,000 psi but < 35,000 psi
4 = Minimum specified yield strength of >= 35,000 psi but <= 50,000 psi
5 = Minimum specified yield strength of > 50,000 psi but < 65,000 psi
6 = Minimum specified yield strength of >= 65,000 psi but <= 80,000 psi
7 = Minimum specified yield strength over 80,000 psi
For example, under ASTM A1079, the minimum specified yield strength for “Designation CP grade 780T/500Y” is 500 MPa, which converts to approximately 72,519 psi, so for that product, you would report code “6.”
Where no minimum yield strength is required, but a typical minimum is identified within the specification from a standards organization such as ASTM (e.g., under ASTM A653, the typical range of yield strengths for “Designation CS Type A” is identified as 25,000 psi to 55,000 psi, yielding a typical minimum of 25,000 psi, which in turn falls under reporting code “3“).
If no such requirements or guidance on minimum specified yield strength is identified in the specification for the product in question, explain in detail your rationale for using one of the above reporting codes to report this field for the product (do not create additional reporting codes). Finally, provide a chart that identifies all of the specifications/grades/types/designations in your comparison market and U.S. market sales databases. After identifying in the first column the complete specification/grade/type/designation identification (e.g., “ASTM A653 Designation SS grade 230“), identify in subsequent columns the allowable range of carbon
content, the minimum specified yield strength (in pounds per square inch), the minimum specified tensile strength (in pounds per square inch), and the minimum specified elongation percentage. For those values in this chart that are based on non-mandatory guidance provided in the specification (such as for the minimum yield strength for the ASTM A653 CS Type A products referenced above), place three asterisks next to the value in question (e.g., “25,000***“).
Yield Strength Mem. at 1-2.12 The fault Commerce found with Prosperity‘s reporting was confined to a group of sales of CORE that Prosperity classified as code 7 based on the above instructions (“Minimum specified yield strength over 80,000 psi“) instead of code 6 (“Minimum specified yield strength of >= 65,000 psi but <= 80,000 psi“), which Commerce believed was the correct response.13 Final Decision Mem. at 13. Commerce found that this occurred where the CORE at issue had a minimum specified yield strength of exactly 80,000 psi, when yield strength was determined according to the specifications in an established international standard. Id. (concluding that the misreporting of minimum specified yield strength occurred “at the cusp of the CONNUM cutoff“). The sales Commerce found to have been misreported as code 7 involved merchandise classified in Prosperity‘s internal Product Coding System as having a mechanical property grade of “Structural (YS>80 Ksi),” i.e., as having a minimum specified yield strength greater than 80,000 psi. See Prosperity‘s Br. 9-11, 27-28.
The first problem with the Department‘s misclassification finding is that Commerce did not define in its questionnaire the meaning of the term “Minimum specified yield strength” as used in its table of yield strength categories (“codes“). See Yield Strength Mem. at 1-2. As a result, this term could be read to refer to the yield strength as “specified” by the manufacturer or as “specified” by a standards organization. Second, the four paragraphs that follow do not narrow the meaning of the term “Minimum specified yield strength” in the way that Commerce assumed. The court is not aware of any other record information that did so, and defendant points to none.
The first paragraph that follows the table consists of a single sentence: “For example, under ASTM A1079, the minimum specified yield strength for ‘Designation CP grade 780T/500Y’ is 500 MPa, which converts to approximately 72,519 psi, so for that product, you would report code ‘6‘.” Yield Strength Mem. at 2. While this sentence refers to an industry standard, ASTM A1079, it does so only as an example, not as a directive to classify products using only yield strength specifications obtained from industry standards. Instead, the example is directed to the conversion of MPa (megapascals) to pounds per square inch. The sentence does not state that only the use of yield strength specifications
The second paragraph fails to communicate that only external standards will suffice because it is not even a complete sentence. See id. (“Where no minimum yield strength is required, but a typical minimum is identified within the specification from a standards organization such as ASTM (e.g., under ASTM A653, the typical range of yield strengths for ‘Designation CS Type A’ is identified as 25,000 psi to 55,000 psi, yielding a typical minimum of 25,000 psi, which in turn falls under reporting code ‘3‘).“). Even were the court to overlook the grammatical problem, it still would conclude that the text does not address the question this case poses. The example in the parenthetical addresses how to report a “typical minimum” yield strength where only a “typical range,” and not an identified required minimum yield strength, is given. There is no discussion of what constitutes a permissible specification within the universe of possible specifications.
The third paragraph, a single sentence, instructs that “[i]f no such requirements or guidance on minimum specified yield strength is identified in the specification for the product in question, explain in detail your rationale for using one of the above reporting codes to report this field for the product (do not create additional reporting codes).” Id. This sentence is directed to a situation in which a product specification contained no minimum yield strength specification or guidance. Here, minimum yield specifications existed in the manufacturer‘s specification and that of the industry standard, and, therefore, this sentence is inapplicable to, and does not resolve, the issue before the court. Moreover, in using the unspecific phrase “identified in the specification for the product in question,” the sentence suggests that Commerce intended a broad meaning to the word “specification.”
The fourth and final paragraph contains two references to industry standards, but each reference is presented only as an example. See id. Like the preceding paragraphs, it does not indicate an intent to prohibit a respondent from using a manufacturer‘s specification for yield strength.
It might be argued that the examples given in the fourth paragraph and the first two paragraphs suggest that only specifications published by international standards bodies were intended. But even if that interpretation of the instructions were considered, arguendo, to be the more reasonable interpretation, it would not suffice to justify the adverse action Commerce took against Prosperity. The lack of specificity arising from the breadth of the terms Commerce used (e.g., “Minimum specified yield strength” and “specification for the product in question“) and from the absence of definitions for those terms convinces the court that Prosperity‘s interpretation of the Department‘s reporting instructions was not unreasonable. It follows that Commerce, on this record, was not justified in resorting to the use of the facts otherwise available. Having not requested yield strength information only in the form of yield strength as specified by a standards organization, Commerce was not supported by substantial evidence on the record when it found, per
The Department‘s reasoning that Prosperity could have consulted Commerce for clarification of the information request, see Final Decision Mem. at 13, does not convince the court that Commerce acted properly in using the facts otherwise available or an adverse inference. Because Commerce did not effectuate in its instructions its claimed intention to confine yield strength reporting to yield strength specifications in established industry standards, Prosperity did not act unreasonably in interpreting the Department‘s instructions to allow it to use manufacturer‘s specifications for this purpose or in not requesting clarification.
Defendant-intervenors argue, similarly, that Prosperity was “at the very least negligent” by “failing to confirm its understanding” of the instructions for reporting yield strength with Commerce and that it was Prosperity‘s “responsibility to look behind its internal product coding system and report physical characteristics for each sale based on Commerce‘s model match.” Def.-Ints.’ Opp‘n 30. Because the instructions on their face did not require Prosperity to code its products for yield strength based on an established industry standard, the court rejects defendant-intervenors’ notion that Prosperity was required in this circumstance to seek clarification. If Commerce is to take an action adverse to a party for an alleged failure to comply with an information request, it must fulfill its own responsibility to communicate its intent in that request. In this instance, the possibility that a respondent would not interpret the instructions according to the Department‘s subjective and undisclosed intent was a foreseeable consequence of the way Commerce drafted those instructions.
Defendant and defendant-intervenors argue that the Department‘s instructions did not permit Prosperity to use producer-specific codes for reporting yield strength. Def.‘s Opp‘n 18-24; Def.-Ints.’ Opp‘n 13-15, 16-18. According to defendant-intervenors, the Department‘s questionnaire “instructions very clearly require[d] the reporting of MSYS [i.e., minimum specified yield strength] based on industry specifications published by ‘standards organizations such as ASTM.‘” Def.-Ints.’ Opp‘n 13. This argument overlooks the lack of clarity in the instructions on that point. Defendant argues that “‘in reporting yield strength, as steel products are commonly (if not virtually exclusively) manufactured to various standards, {Prosperity} was required to code yield strength pursuant to the minimum yield strength required of the standard to which the product was produced and not the actual yield strength of the product itself.‘” Def.‘s Opp‘n at 19 (quoting Final Decision Mem. at 13). This argument misses the mark because Prosperity, rather than claiming to have reported yield strength based on actual yield strength, claimed that it reported yield strength according to its own manufacturing specifications. See Prosperity‘s Reply Br. 10.
Defendant also argues that Prosperity erroneously “read each paragraph of the instructions in isolation” and failed to consider “whether subsequent paragraphs provided additional information that would clarify a term contained in a prior paragraph.” Def.‘s Opp‘n at 19-20. The court‘s individual analysis of the four instructional paragraphs, presented above, demonstrates the flaw in this textual argument.
2. Commerce Must Correct Its Error in the Redetermination upon Remand
Because Commerce invoked its authority to use facts otherwise available and an adverse inference according to an invalid
investigation. Subject to these requirements, the type of corrective action is a matter for Commerce to decide.15
IV. CONCLUSION AND ORDER
For the reasons discussed in the foregoing, the court remands to Commerce the decision published as Certain Corrosion-Resistant Steel Products From Taiwan: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances, in Part, 81 Fed. Reg. 35,313 (Int‘l Trade Admin. June 2, 2016) (“Final Determination“), as amended, Certain Corrosion-Resistant Steel Products From India, Italy, the People‘s Republic of China, the Republic of Korea and Taiwan: Amended Final Affirmative Antidumping Determination for India and Taiwan, and Antidumping Duty Orders, 81 Fed. Reg. 48,390 (Int‘l Trade Admin. July 25, 2016). In its new determination, Commerce must: (1) correct its erroneous decision not to make adjustments in Yieh Phui‘s and Synn‘s home market sales prices to account for rebates granted to the companies’ home market customers; (2) reconsider its decision to collapse Prosperity with the Yieh Phui/Synn entity and ensure that any new decision is based on findings supported by substantial record evidence; and (3) correct the errors resulting from the Department‘s unlawful decision to use the facts otherwise available and an adverse inference pertaining to the yield strength classification and coding of Prosperity‘s home market and U.S. market sales.
Therefore, upon consideration of all papers and proceedings had herein, and upon due deliberation, it is hereby
ORDERED that the Final Determination be, and hereby is, set aside as unlawful and remanded for reconsideration and redetermination in accordance with this Opinion and Order; it is further
ORDERED that Commerce shall file, within 90 days from the date of this Opinion and Order, a new determination upon remand (“Remand Redetermination“) that conforms to this Opinion and Order and redetermines margins as necessary; it is further
ORDERED that plaintiffs and defendant-intervenors each may file comments on the Remand Redetermination within 30 days of the filing of the Remand Redetermination; and it is further
ORDERED that defendant may respond to the aforementioned comments within 15 days from the date on which the last comment is filed.
Dated: January 23, 2018
New York, New York
/s/ Timothy C. Stanceu
Timothy C. Stanceu, Chief Judge