UNION STEEL, Plaintiff, and Whirlpool Corporation, Plaintiff-Intervenor, v. UNITED STATES, Defendant, and United States Steel Corporation and Nucor Corporation, Defendant-Intervenors.
Court No. 09-00130
United States Court of International Trade
April 25, 2012
Slip Op. 12-56
STANCEU, Judge
Based on the foregoing, and the Court‘s review of the Second Redetermination and all other pleadings and papers filed herein, it is hereby
ORDERED that the Final Results of Redetermination Pursuant to Voluntary Remand issued by the Department of Commerce is affirmed without modification, and this matter is dismissed.
William R. Rucker and Nicolas Guzman, Drinker Biddle & Reath, LLP, of Chicago, IL, for plaintiff-intervenor.
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, and Claudia Burke, Assistant Director. Of counsel on the brief was Daniel J. Calhoun, Attorney, Offiсe of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, DC.
Jeffrey D. Gerrish, Ellen J. Schneider, and Robert E. Lighthizer, 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:
Plaintiff Union Steel Manufacturing Co., Ltd. (“Union“) brought this action in 2009 to contest the final determination (“Final Results“) issued by the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department“), that concluded the Department‘s fourteenth periodic administrative review of an antidumping duty order on imports of certain corrosion-resistant carbon steel flat products (“CORE“) from the Republic of Korea (“Korea“). Compl. (Mar. 24,
In its first opinion and order in this case, Union Steel v. United States, 33 CIT —, 617 F. Supp. 2d 1373 (2009) (“Union Steel I“), the court ruled that Whirlpool Corporation had plaintiff-intervenor status as of right and enjoined the liquidation of entries of Whirlpool‘s merchandise pending judicial review. In its second opinion and order, Union Steel v. United States, 35 CIT —, 755 F. Supp. 2d 1304 (2011) (“Union Steel II“), the court held that Commerce acted lawfully in basing Union‘s general and administrative (“G & A“) expenses and interest expense on financial statements that pertained to seven of the twelve months of the period of review and in using the “zeroing” methodology in determining Union‘s weighted-average dumping margin for the Final Results. Id. at —, 755 F. Supp. 2d at 1315-16. Further, in response to defendant‘s request for a voluntary remand, the court ordered that Commerce reconsider its denial of Union‘s request for a revision to the model-match methodology Commerce applied in the fourteenth review. Id. at —, 755 F. Supp. 2d at 1315-16.
Before the court is the determination (“Remand Redetermination“) Commerce issued in response to the remand order in Union Steel II. Final Results of Redetermination Pursuant to Remand (July 15, 2011), ECF No. 115 (“Remand Redetermination“). In the Remand Redetermination, Commerce altered its model-match methodology with respect to the treatment of “laminated” CORE, which is CORE that is coated with a plastic film. In the Final Results, Commerce considered laminated CORE products to be products identical in physical characteristics with subject CORE that was painted but not laminated. Under the altered methodology, Commerce no longer compared subject non-laminated, painted CORE products with laminated CORE products as products identical in physical characteristics. Id. at 2. The Remand Redetermination lowered Union‘s weighted-average dumping margin from 7.56% to 7.45%. Id. at 18.
Also before the court is Union‘s motion requesting that the court reconsider its decision in Union Steel II affirming the Department‘s use of zeroing in the fourteenth administrative review. Union bases its motion for reconsideration on an intervening judicial decision, Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) (“Dongbu“), in which the U.S. Court of Appeals for the Federal Circuit (“Court of Appeals“) declined to affirm a judgment of the Court of International Trade sustaining the Department‘s use of zeroing in an administrative review of an antidumping duty order.
The court affirms the Department‘s decision on remand to apply a revised model-match methodology, which plaintiff supports and defendant-intervenors oppose. The court issues a second remand order so that Commerce may provide an explanation of its decision to apply zeroing that addresses the issues identified by the Court of Appeals in Dongbu.
I. BACKGROUND
Background on this litigation is set forth in the court‘s prior opinions and orders and supplemented herein. Union Steel I, 33 CIT at —, 617 F. Supp. 2d at 1375-78; Union Steel II, 35 CIT at —, 755 F. Supp. 2d at 1306-07.
Addressing Count I of the complaint, the court in Union Steel II sustained the Department‘s use of the zeroing methodology in determining Union‘s weighted-average dumping margin in the fourteenth review. Union Steel II, 35 CIT at —, 755 F. Supp. 2d at 1314-15. Responding to defendant‘s request for a voluntary remand on the claim in Count II, the court ordered Commerce to “review and reconsider its ‘model match’ methodology” and alter that methodology “if substantial record evidence does not support a finding that only minor and commercially insignificant physical differences distinguish Union‘s laminated products from the non-laminated products to which the Department compared Union‘s laminated products.” Id. at —, 755 F. Supp. 2d at 1316. With respect to the claim in Count III, the court sustained the Department‘s decisions to use the 2007, rather than the 2006, financial statements. Id. at —, 755 F. Supp. 2d at 1307-12.
Plaintiff filed its motion for reconsideration on April 5, 2011, relying on the decision of the Court of Appeals in Dongbu. Pl. Union Steel‘s Mot. for Reconsideration (April 5, 2011), ECF No. 106. 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. 114 (“Def.‘s Opp‘n“); Def.-Intervenor‘s Opp‘n to Union Steel‘s Mot. for Reconsideration (May 9, 2011), ECF No. 112 (“Nucor‘s Opp‘n“); Mem. of Def.-Intervenor United States Steel Corporation in Opp‘n to Pl. Union Steel‘s Mot. for Reconsideration (May 9, 2011), ECF No. 113 (“U.S. Steel‘s Opp‘n“).
Commerce filed the Remand Redetermination on July 15, 2011. Remand Redetermination. Plaintiff commented in support of the Remand Redetermination on August 15, 2011. Pl. Union Steel‘s Comments on the U.S. Department of Commerce‘s July 15, 2011 Final Results of Redetermination Pursuant to Ct. Remand (Aug. 15, 2011), ECF No. 120. On the same day, defen
Finally, on February 15, 2012, Union notified the court of a notice published by Commerce indicating that going forward Commerce no longer will employ the zeroing methodology in administrative reviews of antidumping duty orders. Notice of Supplemental Authority (Feb. 15, 2012), ECF No. 129 (citing Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin & Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 Fed. Reg. 8,101 (Feb. 14, 2012)). Defendant moved for leave to reply to this notification on March 6, 2012. Def.‘s Mot. for Leave to File Resp. to Pl.‘s Notice of Supplemental Authority (Mar. 6, 2012), ECF No. 130.
II. DISCUSSION
The court exercises jurisdiction under
The Remand Redetermination altered the model-match methodology as applied in the fourteenth review so that U.S. sales of Union‘s painted CORE products are no longer compared with home-market sales of products in a category including both painted CORE products and products that were laminated with plastic. In the Remand Redetermination, Commerce also “adjusted the cost of production to account for purchases of steel substrate from affiliated parties in Union‘s margin calculation,” citing a remand redetermination Commerce prepared in another case. Remand Rеdetermination 2 (citing United States Steel Corp. v. United States, 35 CIT —, 759 F. Supp. 2d 1349 (2011) (“US Steel“)). The court previously ordered that Commerce, in preparing the remand redetermination at issue in this case, “take into account any other adjustments to redetermined dumping margins resulting from the court‘s remand order in US Steel, which pertains to the same administrative review that is the subject of this litigation.” Union Steel II, 35 CIT at —, 755 F. Supp. 2d at 1314 n. 6. The court now has affirmed the Department‘s decisions set forth in the remand redetermination responding to the court‘s order in US Steel. United States Steel Corp. v. United States, 36 CIT —, 844 F. Supp. 2d 1334, Slip Op. 12-55 (April 25, 2012).
A. The Remand Redetermination Lawfully Determined that the Non-Laminated, Painted CORE May Not Be Compared to the Laminated Core as Products “Identical in Physical Characteristics”
In an administrative review, Commerce determines, for each entry of the subject merchandise, the normal value, the export price or constructed export price, and the
To determine the sales in the home market that matched the sales of subject merchandise, a process to which Commerce refers as “model matching,” Commerce requested information from respondents on “Product Characteristics,” including, as is relevant here, “Type.” See Letter from Commerce to Dongbu Steel Co., Ltd. 34 (Dec. 6, 2007) (Admin. R. Doc. No. 4454).1 The questionnaire directed respondents to classify each of their CORE products within one of four type categories: (1) “Clad (metals bonded by the hot-rolling process), less than 3/16” in thickness“; (2) “Coated/plated with metal: Painted, or coated with organic silicate, Polyvinylidene Fluoride (‘PVDF‘)“; (3) “Coated/plated with metal: Painted, or coated with organic silicate, All Other (i.e., other than PVDF)“; and (4) “Not painted, and not coated with organic silicate.” Id. In response, Union proposed reporting its sales of laminated CORE using an additional type category described as “Coated/plated with metal: Laminated with film.” Letter from Union to the Sec‘y of Commerce B-5-B-6 (Feb. 4, 2008) (Admin. R. Doc. No. 4530) (“Union‘s Feb. 4, 2008 Questionnaire Resp.“).
In the Final 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 7-07, at 7-8 (Mar. 9, 2009) (Admin. R. Doc. No. 4868) (“Decision Mem.“). As a result, Commerce compared, as merchandise “identical in physical characteristics” for purposes of
Commerce еxplained its rejecting Union‘s proposed change to the model-match criteria by stating that Union had “not provided substantial evidence that 1) the model-match criteria are not reflective of the subject merchandise in question, 2) there have been industry-wide changes to the product that merit a modification, or 3) there is some other compelling reason.” Decision Mem. 7. Commerce noted that Union had shown certain differences in costs between laminated and non-laminated, painted CORE products, but called these differences “overstat[ed]” and rejected Union‘s proposed change as “the same methodology that the Department considered in the previous review and found to be without merit.” Id.2
In response to Union‘s challenging before the court the Department‘s decision to reject Union‘s proposed change to the model-match methodology, Compl. ¶¶ 16-17, defendant requested a voluntary remand. Union Steel II, 35 CIT at —, 755 F. Supp. 2d at 1312-13. The court‘s remand order on the model-match issue was “in essentially the form proposed in defendant‘s draft order, but updated to reflect the significant development” since the voluntary remand request. Id. at —, 755 F. Supp. 2d at 1313. The development to which the court referred was the court‘s decision in litigation challenging the final results of the previous (thirteenth) administrative review of the order, in which the court held the Department‘s model-match methodology “unlawful absent a finding of fact, supported by record evidence, that laminated CORE and painted, nonlaminated CORE are ‘identical in physical characteristics’ within the meaning of that statutory provision [i.e.,
if substantial record evidence doеs not support a finding that only minor and commercially insignificant physical differences distinguish Union‘s laminated products from the non-laminated products to which the Department compared Union‘s laminated products, the Department must alter the model match methodology that was applied in the Final Results so that laminated and nonlaminated CORE products are not compared according to
19 U.S.C. § 1677(16)(A) ....
Id. at —, 755 F. Supp. 2d at 1316.
In the Remand Redetermination, Commerce concluded that reopening the record was not necessary. Remand Redetermination 5. Noting that the record contained evidence pertaining to the cost of manufacture, sales price, production processes, and marketing of both laminated and non-laminated, painted CORE, the Department stated that “sufficient factual information already exists on the record for the Department to determine whether the physical differences distinguishing laminated CORE products and non-laminated, painted CORE produсts are minor and not
The Department‘s determination on remand not to compare laminated and non-laminated, painted CORE as products “identical in physical characteristics,”
Substantial evidence supports the Department‘s finding that the products are physically different, with a Union questionnaire response indicating that, unlike non-laminated, painted CORE, laminated CORE has “either a coating of PET (‘Polyethylene Telephthalate‘)3 film that is thermally-sealed onto heated, primеr-coated CORE substrate after it passes through a drying oven or a colored PVC (‘Polyvinyl Chloride‘) film attached to the CORE substrate using an adhesive.” Union‘s Feb. 4, 2008 Questionnaire Resp. B-5-B-6; see also Letter from Union to the Sec‘y of Commerce 28 (July 16, 2008) (Admin. R. Doc. No. 4675) (“Union‘s July 16, 2008 Questionnaire Resp.“) (“The only substantive difference between laminated products and other painted CORE products is that a laminated CORE product is one that is coated with a film, typically either a PET film or a PVC film, instead of being coated with paint.“).
Substantial evidence also supports the Department‘s findings that “the cost of production for laminated CORE products is higher than other non-laminated, painted CORE products” and that “the unit price for laminated CORE products is considerably higher than the unit price of non-laminated, painted CORE products.” Remand Redetermination 7-8. In its February 2008 questionnaire response, Union reported that “[l]aminating the steel increases production costs ... and the sales price” by a substantial percentage. Union‘s Feb. 4, 2008 Questionnaire Resp. B-6. Union also expressed, in a supplemental questionnaire response in July 2008, that “[b]ecause PET film and PVC are more expensive than the various paints used for other color coated products, including PVDF, and require more complicated know-how, the production cost and sales price are higher than other painted
Next, substantial evidence supports the Department‘s finding that laminated and non-laminated, painted CORE are marketed differently. Remand Redetermination 8. As part оf a January 2008 questionnaire response, Union submitted a document labeled “Union‘s and UNICO‘s Product Brochures” listing laminated and non-laminated, painted CORE under different headings on different pages. Letter from Union to the Sec‘y of Commerce exhibit A-28 (Jan. 22, 2008) (Admin. R. Doc. No. 4504). One page referred to “High-tech Steel” and described three brand names of products that appear to be laminated CORE: (1) “Unipet,” which features “[t]hermally laminated PET film“; (2) “Unilux,” which is described as “[t]hermally laminated silver-or-aluminum-deposited high-lux reflection film on the surface of electro-galvanized steel“; and (3) “White Board,” which is described as “[t]hermally laminated solid white PET film on the steel surface.” Id. exhibit A-28, at 570.4 Another page referred to “Pre-painted Steel” and listed several “Available Products,” none of which was advertised as laminated or as coated in PET or PVC film. Id. exhibit A-28, at 569. Also supporting the finding that these types of CORE are marketed separately is an exhibit to the July 2008 supplemental questionnaire response that includes a brochures for Unipet labeled “PET Film-laminated Steel Sheets” and printouts from the website of Unico referring to CORE products marketed with reference to their laminated quality. Union‘s July 16, 2008 Questionnaire Resp. exhibit B-21.
In summary, Commerce permissibly reached an ultimate determination that laminated CORE products and non-laminated (“other painted“) CORE products were distinguished by physical differences that were not minor and were commercially significant. Each of the factual findings that were essential to the Department‘s decision was supported by substantial record evidence.
Defendant-intervenors offer several reasons why they believe the court is required by law to reject the Department‘s decision on the model-match issue as set forth in the Remand Redetermination. The court rejects these arguments.
Nucor argues that the Department‘s decision is arbitrary and not supported by substantial evidence, alleging that “the Department has failed to explain why the record evidence that it previously found unconvincing or inconclusive now provides a sufficient basis to make a model-match change.” Nucor‘s Comments 2. In support of this argument, Nucor cites the Issues and Decision Memorandum incorporated into the Final Results (“Decision Memorandum“) in asserting that Commerce previously found that “any differences in
These arguments are unpersuasive. Commerce reached new findings of fact in determining whether the physical differences between laminated and non-laminated, “other painted” CORE products were minor and not commercially significant. It did so to comply with the court‘s previous opinion and order, in which the court held that comparing laminated CORE with painted, non-laminated CORE as identical merchandise is unlawful absent a valid finding of fact that these two groups of products are “identical in physical characteristiсs” within the meaning of
Moreover, it appears that the premise of Nucor‘s argument as to the Final Results is misguided. Although finding broadly that “the current model match methodology regarding laminated products is reflective of subject merchandise in the instant review,” Decision Mem. 7, Commerce, in preparing the Final Results, did not set forth clear and specific findings regarding differences in physical characteristics, production processes, marketing, or price between the laminated and the non-laminated, painted CORE products that were the subject of the fourteenth administrative
Nucor is also incorrect in arguing that the Remand Redetermination is deficient for lack of a satisfactory explanation for the Department‘s change in position. As the Remand Redetermination explains, Commerce changed its position upon applying the legal standard that Congress established in
Nucor objects, further, that Commerce is reversing its position “based on the data and views of one CORE producer” who “only began challenging the Department‘s model-match before the Court of International Trade after the 13th administrative review,” and that “there is no evidence on the record that the model-match hierarchy proposed by Union is representative of the Korean CORE industry, let alone the CORE industry as a whole.” Nucor‘s Comments 5. Nucor submits that approval of Union‘s proposal “has the potential to encourage future manipulation of the model-match criteria by respondents.” Id. The court finds no merit in this wide-ranging objection. Union unquestionably had the right under section 516A of the Tariff Act,
U.S. Steel argues that Commerce failed to apply the сorrect legal standard in determining that the physical differences are commercially significant. U.S. Steel‘s Comments 4-6. According to U.S. Steel, the correct legal standard, as sustained by the Court of Appeals in Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1385 (Fed. Cir. 2001), is an “industry-wide” standard under which the physical differences must be recognized as commer
U.S. Steel‘s argument misconstrues the holding in Pesquera. The case does not hold that Commerce must find a basis in commercially-established, industry-wide product standards before concluding that any two groups of products are not “identical in physical characteristics” for purposes of
U.S. Steel also contends, inaccurately, that Commerce improperly construed evidence that laminated and non-laminated, painted CORE go through separate production processes as establishing that these products had commercially significant physical differences. U.S. Steel‘s Comments 8-9. Commerce did not base its conclusion of commercial significance solely on the “the fact that different production processes happen to be used.” Id. at 8. Instead, Commerce determined that different production processes resulted in the physical differences that, for various reasons grounded in record evidence, were commercially significant. Remand Redetermination 9 (“Union‘s questionnaire responses, and Union‘s price and cost data, demonstrate that the physical differences between laminated CORE products and non-laminated, painted CORE products are neither minor nor commercially insignificant.“).
For the reasons discussed in the foregoing, the court must affirm the decision in the Remand Redetermination not to compare the subject non-laminated, painted CORE with home-market laminated CORE as merchandise identical in physical characteristics under
B. The Court Reconsiders its Prior Decision Upholding the Use of Zeroing in the Fourteenth Review and Orders an Appropriate Rеmand
Plaintiff seeks reconsideration of the court‘s decision in Union Steel II affirming the Department‘s use of the zeroing methodology. Plaintiff argues that after Union Steel II was issued, Dongbu Steel Co. v. United States, 635 F.3d 1363, established that the court‘s decision affirming zeroing was incorrect. Pl.‘s Mot. 1-2. In Union Steel II, the court relied on various decisions of the Court of Appeals, issued prior to Dongbu, which had upheld the Department‘s use of zeroing in administrative reviews despite the Department‘s having ceased applying the zeroing methodology in original investigations. Union Steel II, 35 CIT at —, 755 F. Supp. 2d at 1315. Plaintiff argues that the prior decisions of the Court of Appeals are not precedents supporting the use of zeroing in this case, citing language in Dongbu in which the Court of Appeals stated that it had “never considered” the precise question of whether Commerce permissibly could interpret the language of
The court first addresses the question of the authority under which it may reconsider its prior order. The authority under which plaintiff moves, USCIT Rule 59(a)(2), does not apply here. See Union Steel v. United States, 35 CIT —, —, 804 F. Supp. 2d 1356, 1366-67 (2011) (“Union Steel IV“). USCIT Rule 59(a)(2) applies “[a]fter a nonjury trial” and allows the court to reconsider prior decisions when a party moves for a new trial or rehearing “not later than 30 days after the entry of the judgment or order.” USCIT R. 59(b). Although the Court of International Trade previously has concluded that the concept of a “nonjury trial” encompasses matters, such as this case, decided on the agency record, see NSK Corp. v. United States, 32 CIT 1497, 1502, 593 F. Supp. 2d 1355, 1362 (2008), Rule 59(a)(2) does not authorize the court to hear plaintiff‘s motion because that motion, filed on April 5, 2011, came more than thirty days after the court‘s February 15, 2011 decision in this case. See USCIT R. 6(b)(2) (“The court must not extend the time to act under ... 59(b)“). Nothing in the court‘s rules, however, provides that USCIT Rule 59 is the only method by which the court may reconsider a prior order. See Timken Co. v. United States, 6 CIT 76, 78, 569 F. Supp. 65, 68 (1983); Union Steel IV, 35 CIT at —, 804 F. Supp. 2d at 1367.
The alternative authority cited by plaintiff, USCIT Rule 60(b)(6), also is inapplicable to plaintiff‘s motion becаuse it applies only to a final judgment, which has not yet been entered in this case. See USCIT Rule 60(b)(6) (stating that “the court may relieve a party ... from a final judgment, order or proceeding for ... any other reason that justifies relief.“). As the advisory notes to the Federal Rules of Civil Procedure clarify, Rule 60(b) applies only to final decisions. Fed. R. Civ. P. 60(b), advisory notes (“[I]nterlocutory judgments are not brought within the restrictions of the rule.“).
Instead, the court may reconsider its decision in Union Steel II pursuant to its general authority, which is recognized by USCIT Rule 54, to reconsider a non-final order prior to entering final judgment. Rule 54 states that “any order ... that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action ... and may be revised at any time before the entry of judgment.” USCIT R. 54(b). As
The court concludes that reconsideration of its prior decision affirming the use of zeroing is warranted. In two decisions issued in 2011, JTEKT Corp. v. United States, 642 F.3d 1378, 1383-85 (Fed. Cir. 2011) and Dongbu, the Court of Appeals held that the final results of administrative reviews in which zeroing was used must be remanded so that Commerce may explain its interpreting the language of
The court does not have before it a statutory construction by the Department that is satisfactory under the reasoning of Dongbu and JTEKT Corp. Therefore, the court will set aside its previous affirmance of the use of zeroing in Union Steel II and will direct Commerce to provide the explanation contemplated by the Court of Appeals in Dongbu and JTEKT Corp., each of which questioned the Department‘s construction of
The arguments other parties to this case advance in opposition to reconsideration are not persuasive. Defendant argues that Dongbu does not justify reconsideration because Dongbu was limited to its unique procedural setting, in which Commerce lacked opportunity to respond to the plaintiff‘s statutory interpretation argument. Def.‘s Opp‘n 4-5. The court does not read the opinion in Dongbu so narrowly as to consider the reasoning of Dongbu inapplicable here. To do so would miss the more general point that in Dongbu, as well as in JTEKT Corp., the Court of Appeals refused to affirm a judgment of the Court of International Trade upholding the use of zeroing in an administrative review. Moreover, JTEKT Corp. vacated a judgment upholding the Department‘s use of zeroing when the Department not only had an opportunity to explain such use but did so using essentially the same rationale offered here.
U.S. Steel argues that the court should not reconsider its decision upholding zeroing because Dongbu did not hold the Department‘s inconsistent interpretations of
In summary, remand in this case is appropriate so that Commerce may alter its decision to apply zeroing with respect to Union in the fourteenth review or, alternatively, provide an explanation as contemplated in JTEKT Corp. and Dongbu, i.e., an explanation of how the language of
III. CONCLUSION AND ORDER
Upon consideration of all proceedings and submissions herein, and upon due deliberation, it is hereby
ORDERED that the Final Results of Redetermination Pursuant to Remand (July 15, 2011), ECF No. 115 (“Remand Redetermination“) be, and hereby are, AFFIRMED with respect to the decision stated therein to modify the model-match methodology of the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department“); it is further
ORDERED that Defendant‘s Motion for Leave to File Response to Plaintiff‘s Notice of Supplemental Authority, as filed on March 6, 2012, be, and hereby is, GRANTED, and that Defendant‘s Response to Plaintiff‘s Notice of Supplemental Authority be, and hereby is, accepted as filed on March 6, 2012; it is further
ORDERED that plaintiff‘s Motion for Reconsideration, filed on April 5, 2011, be, and hereby is, GRANTED; it is further
ORDERED that the court‘s previous affirmance of the Department‘s decision in Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Fourteenth Admin. Review & Partial Rescission, 74 Fed. Reg. 11,082 (Mar. 16, 2009) (“Final Results“) to apply the zeroing methodology be, and hereby is, set aside; it is further
ORDERED that, on remand, Commerce must reconsider its decision in the Final Results to apply the zeroing methodology and must either alter that decision or explain how the language of
ORDERED that Commerce shall file the second remand redetermination with the court not later than sixty (60) days from the date of this Opinion and Order, and that plaintiff and defendant-intervenors shall have thirty (30) days from the date on which Commerce files the second remand redetermination to file any comments thereon; and it is further
ORDERED that defendant shall be allowed fifteen (15) days from the last filing of any comments by plaintiff or defendant-intervenors in which to file a rebuttal or other response to the comments of plaintiff or defendant-intervenors.
Notes
Although Union cites to certain cost information based on its questionnaire responses submitted in this review, it is the same methodology that the Department considered in the previous review and found to be without merit. Union‘s cost information showed a comparatively large cost difference when Union isolated the rаw material used solely for lamination, compared with raw material used for some other painted products. This analysis overstates the differences between laminated and other painted products because it does not account for the numerous aspects of total production cost which are the same for painted and laminated products.
Thus, consistent with the previous reviews of CORE from Korea, the Department finds that the current model match methodology regarding laminated products is reflective of subject merchandise in the instant review. Further, neither changes in industry standards nor other compelling reasons have been presented. Therefore, we have not changed our model-match methodology in this respect.
Decision Mem. 7-8.The Federal Circuit (Federal Circuit) has found the language and congressional intent behind