Slip Op. 18-
UNITED STATES COURT OF INTERNATIONAL TRADE
HYUNDAI STEEL COMPANY,
Plaintiff,
v.
UNITED STATES,
Before: Jane A. Restani, Judge
Defendant,
ARCELORMITTAL USA LLC, STEEL Court No. 16-00161
DYNAMICS, INC., CALIFORNIA STEEL
INDUSTRIES, INC., AK STEEL
CORPORATION, UNITED STATES STEEL
CORPORATION, and NUCOR
CORPORATION,
Defendants-Intervenors.
OPINION
Dated: June , 2018
[Commerce’s remand results in an investigation of Corrosion-Resistant Steel Products from the
Republic of Korea are affirmed.]
J. David Park, Andrew Treaster, Daniel Wilson, Henry Almond, and Sylvia Yun Chu
Chen, Arnold & Porter Kaye Scholer LLP, of Washington, DC, for the plaintiff.
Elizabeth Speck, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, DC, for the defendant. Of counsel on the brief was James Ahrens II,
Office of Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.
Grace Kim, Joshua Morey, Kathleen Cannon, Paul Rosenthal, and R. Alan Luberda,
Kelley Drye & Warren, LLP, of Washington, DC, for defendant-intervenor ArcelorMittal USA
LLC.
Court No. 16-00161 Page 2
Roger Schagrin, Christopher Cloutier, John Bohn, and Paul Jameson, Schagrin
Associates, of Washington, DC, for defendants-intervenors Steel Dynamics, Inc. and California
Steel Industries, Inc.
Stephen Jones, and Daniel Schneiderman, King & Spalding, LLP, of Washington, DC,
for defendant-intervenor AK Steel Corporation.
Thomas Beline, and Sarah Shulman, Skadden Arps Slate Meagher & Flom, LLP, of
Washington, DC, for defendant-intervenor United States Steel Corporation.
Alan Price, Adam Teslik, Christopher Weld, Cynthia Galvez, Derick Holt, Laura El-
Sabaawi, Maureen Thorson, Stephanie Bell, Tessa Capeloto, Timothy Brightbill, and Usha
Neelakantan, Wiley Rein, LLP, of Washington, DC, for defendant-intervenor Nucor
Corporation.
Restani, Judge: Before the court are the United States Department of Commerce
(“Commerce”)’s Final Results of Redetermination Pursuant to Remand, A-580-878, POI
04/01/2014–03/31/2015 (Dep’t Commerce May 11, 2018) (“Remand Results”), concerning
Commerce’s antidumping duty (“AD”) investigation regarding Corrosion-Resistant Steel
Products (“CORE”) from the Republic of Korea (“Korea”). Hyundai Steel Co. (“Hyundai”)
requests the court sustain Commerce’s Remand Results; United States Steel Co. (“U.S. Steel”)
requests the court issue a second remand for Commerce to adjust its calculations. For the
reasons stated below, Commerce’s Remand Results are sustained.
BACKGROUND
The court assumes all parties are familiar with the facts of the case as discussed in
Hyundai Steel Co. v. United States, 282 F. Supp. 3d 1332, 1336–39 (CIT 2018) (“Hyundai I”).
For the sake of convenience, the facts relevant to this remand are summarized herein. Following
Commerce’s investigation into possible sales of CORE from Korea at less than fair value, having
exchanged several questionnaires and responses regarding Hyundai’s further manufactured sales
data, see, e.g., Hyundai Steel’s Response to the Department’s Request for Section E and
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Additional Sales Data, A-580-878, POI 04/01/2014–03/31/2015, at 1–9 (Dep’t Commerce Nov.
2, 2015); Second Supplemental Questionnaire to Sections B&C, and First Supplemental to
Further Manufacturing, A-580-878, POI 04/01/2014–03/31/2015, Attach. 1, at 1–2 (Dep’t
Commerce Nov. 19, 2015), Commerce identified several problems with Hyundai’s responses,
Issues and Decision Memorandum for the Final Affirmative Determination in the Antidumping
Duty Investigation of Certain Corrosion-Resistant Steel Products from the Republic of Korea, A-
580-878, POI 04/01/2014–03/31/2015, at 7–17, 31–33 (Dep’t Commerce May 24, 2016) (“Final
Det. I&D Memo”). Citing these problems, Commerce applied an adverse inference to facts
otherwise available (“AFA”) when calculating cost data for, inter alia, Hyundai’s sales of skelp,
sheets, and blanks (“SSBs”). Final Det. I&D Memo, at 14–17. Commerce assigned Hyundai an
overall dumping margin of 47.8 percent ad valorem. Final Determination of Sales at Less than
Fair Value and Final Affirmative Determination of Critical Circumstances, 81 Fed. Reg. 35,303,
35,304 (Dep’t Commerce June 2, 2016), as amended by 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, 48,393 (Dep’t Commerce July 25, 2016).
Thereafter, Hyundai raised various challenges before the U.S. Court of International
Trade, and the court upheld Commerce’s AD order in all but one respect. See generally Hyundai
I, 282 F. Supp. 3d at 1339–52. Holding that Commerce had unlawfully applied AFA without
first providing Hyundai an opportunity to explain or correct deficiencies in its SSB data, the
court remanded the matter for Commerce to provide such an opportunity and recalculate
Hyundai’s AD margin as appropriate. Id. at 1347–49, 1352. On remand, Commerce issued a
supplemental questionnaire, to which Hyundai responded, answering Commerce’s questions
Court No. 16-00161 Page 4
regarding specific aspects of its earlier SSB data. Supplemental Remand Questionnaire on
Sheet, Skelp, and Blanks, A-580-878, POI 04/01/2014–03/31/2015, at Attach. 1 (Dep’t
Commerce Feb. 22, 2018) (“Remand Supp. Q.”); Hyundai Steel’s Supplemental Questionnaire
Response, A-580-878, POI 04/01/2014–03/31/2015, at Ex. 1 (Dep’t Commerce Mar. 16, 2018).
Commerce issued its remand results on May 11, 2018, recalculating Hyundai’s dumping margin
at 7.89 percent ad valorem. Remand Results, at 1–2.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court upholds
Commerce’s final results in an AD investigation unless “unsupported by substantial evidence on
the record, or otherwise not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1)(B)(i) (2006).
DISCUSSION
On remand, having assessed Hyundai’s response to Commerce’s supplemental
questionnaire, Commerce concluded that Hyundai’s “response remedies the major deficiencies in
its previous further manufacturing responses with respect to SSBs. Specifically, Hyundai has
sufficiently explained the inconsistencies and previously unexplained changes that plagued the
data it submitted with respect to its SSB sales during the investigation.” Remand Results, at 6.
Commerce accordingly adjusted Hyundai’s further-manufacturing expenses for SSBs and, using
the data from Hyundai’s December 29, 2015, databases, recalculated Hyundai’s AD margin. Id.;
see generally Hyundai Steel’s Response to the Department’s Supplemental Section E
Questionnaire, A–580–878, POI 04/01/2014–03/31/2015 (Dep’t Commerce Dec. 29, 2015).
U.S. Steel contends that Commerce erred in recalculating Hyundai’s AD margin, and should
have continued to apply AFA. United States Steel Corporation’s Comments Upon the Remand
Redetermination Filed by the U.S. Department of Commerce, ECF No. 85, at 2–9 (June 1, 2018)
Court No. 16-00161 Page 5
(“U.S. Steel Remand Comments”).
Commerce may apply an adverse inference in certain situations where it has resorted to
“facts otherwise available.” See 19 U.S.C. § 1677e(b) (2015). As the court stated in Hyundai I,
under 19 U.S.C. § 1677e(a) Commerce shall use “facts otherwise available” where: “(1)
necessary information is not available in the record; or (2) an interested party (a) withholds
requested information; (b) fails to timely provide information in the form requested; (c)
significantly impedes proceedings; or (d) provides information which cannot be verified under
19 U.S.C. § 1677m(i).” Hyundai I, 282 F. Supp. 3d at 1343. Recourse to “facts otherwise
available” is subject to the requirement that Commerce promptly notify respondent of the
deficiency and, to the extent practicable, provide respondent an opportunity to remedy or explain
it. 19 U.S.C. § 1677e(a); 1677m(d).
U.S. Steel argues that the supplemental questionnaire constituted such an
opportunity to explain deficiencies in Hyundai’s December 29 SSB data, and that aspects
of Hyundai’s March 16 responses still required recourse to “facts otherwise available.”
U.S. Steel Remand Comments, at 4–8. It first contends that after Hyundai’s March 16
response, its December 29 database remained generally unverifiable. Id. at 5.
On remand, Commerce’s supplemental questionnaire did allow Hyundai to explain the
issues with its previously submitted SSB sales data, in accordance with 19 U.S.C. § 1677m(d).
At U.S. Steel’s behest, furthermore, Commerce subjected both Hyundai’s March 16 response and
its December 29 database to verification. Request for Verification of Hyundai Steel’s Further
Manufacturing Submission, A–580–878, POI 04/01/2014–03/31/2015, at 1 (Dep’t Commerce
Mar. 22, 2018); Verification of the Further Manufacturing Response of Hyundai Steel Company
in the Remand to the Antidumping Duty Investigation of Certain Corrosion-Resistant Steel
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Products from the Republic of Korea, A–580–878, POI 04/01/2014–03/31/2015, at 3 (Dep’t
Commerce May 1, 2018) (“Remand Verification Report”). Neither Commerce’s Remand
Verification Report, nor its Remand Results indicate that Commerce found material aspects of
Hyundai’s December 29 database unverifiable. U.S. Steel Remand Comments, at 5–6; Remand
Results, at 11–12; see generally Remand Verification Report, at 1–14. That Commerce
identified and addressed issues with Hyundai’s data is consistent with the purpose of verification.
The mere presence of correctable errors does not automatically make the data concerned
unverifiable. Prior practice cited by U.S. Steel is consistent with this conclusion. U.S. Steel
Remand Comments, at 5–6 (citing Issues and Decision Memorandum for the Final Results of
Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty
Administrative Review: Certain Hot-Rolled Carbon Steel Flat Products from Thailand, A-549-
817, POR 11/01/2005–10/31/2006, at Cmt. 1 (Dep’t Commerce June 4, 2008) (applying partial
facts available because respondent’s yield strength information “could not be fully verified,” as it
was incorrect for a majority of sales and respondent’s explanation failed to resolve the
discrepancy)).
U.S. Steel next faults Commerce for adjusting its remand calculations to account for
issues with Hyundai’s data instead of applying AFA. Specifically, U.S. Steel notes the following
issues with Hyundai’s March 16 report: (1) Hyundai’s explanation of how it calculated yield
loss was incorrect; and (2) Hyundai’s explanation revealed that, in calculating its general and
administrative (“G&A”) expense ratio, it improperly included management fees and misstated its
cost of sales. U.S. Steel Remand Comments, at 6–7; see also Remand Verification Report, at 2.
U.S. Steel contends that the foregoing rendered Hyundai’s yield loss and G&A expense ratio
calculations unverifiable. Id. at 6.
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Regarding yield loss, although Commerce found Hyundai’s March 16 explanation
unclear, Commerce indicated that the actual methodology used in Hyundai’s December 29
database was correct. Remand Results, at 11; Remand Verification Report, at 9. On remand,
Commerce actually used Hyundai’s December 29 methodology in recalculating Hyundai’s AD
margin. Remand Results, at 11; Remand Verification Report, at 9. There are no indicia that
Hyundai’s yield loss calculations were unverifiable. Commerce identified Hyundai’s specific
calculation method and reproduced it in recalculating Hyundai’s AD margin. Commerce’s
decision not to resort to “facts otherwise available” in calculating Hyundai’s yield loss is thus
supported by substantial evidence.
Regarding G&A expense ratios, Commerce notes that it commonly adjusts respondents’
ratio calculations. Remand Results, at 13 (citing Issues and Decision Memorandum for the Final
Affirmative Determination in the Less than Fair Value Investigation of Certain Hot-Rolled Steel
Flat Products from Brazil, A-351-845, POI 07/01/2014–06/30/2015, at Cmt. 5 (Dep’t Commerce
Aug. 4, 2016); Issues and Decision Memorandum for the Final Affirmative Determination in the
Less-Than-Fair-Value Investigation of Certain Carbon and Alloy Steel Cut-To-Length Plate
from France, A-427-828, POI 04/01/2015–03/31/2016, at Cmt. 17 (Dep’t Commerce Mar. 29,
2017)). Commerce did not find that its adjustments of Hyundai’s G&A expense ratio
necessitated recourse to “facts otherwise available” in this case, because all the information used
in Commerce’s calculations was derived from Hyundai’s submissions. Remand Results, at 10–
11. The court finds no reason to disturb Commerce’s conclusion, especially considering that
Commerce’s supplemental questionnaire requested explanations in lieu of revised data. See
Remand Supp. Q., at Attach. 1; see also Remand Results, at 13. Commerce’s decision not to
utilize “facts otherwise available” is supported by substantial evidence. Thus, Commerce
Court No. 16-00161 Page 8
necessarily acted according to law in declining to apply an adverse inference to any of the
above. 1
Hyundai argues that Commerce complied with the terms of the remand order. See
Hyundai Steel Company’s Comments on Remand Results, ECF No. 84, at 1–3 (June 1, 2018).
The court agrees. Commerce’s February 22, 2018, supplemental questionnaire provided
Hyundai a sufficient opportunity to explain deficiencies in its SSB data, and Commerce
thereafter acted according to law in recalculating Hyundai’s AD margin.
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are SUSTAINED. Judgment
will enter accordingly.
V-DQH$5HVWDQL
__________________
Jane A. Restani, Judge
Dated: June , 2018
New York, New York
1
The government’s reply brief on remand implies that Commerce may have resorted to “facts
otherwise available” in recalculating the portion of Hyundai's AD margin attributable to SSB
sales. See Defendant's Response to Comments on Remand Results, ECF No. 87, at 9–10 (June
15, 2018). The government does not clearly explain how Commerce supplemented Hyundai's
usable SSB data with “facts otherwise available,” id. at 6–10, but to the extent this was done, the
court holds that Commerce’s decision not to apply an adverse inference to such data is supported
by substantial evidence. As discussed above, once given an opportunity to explain deficiencies
in its SSB data, Hyundai promptly complied, sufficiently explaining its earlier submission such
that it could be used in Commerce’s recalculations. Overall, Hyundai’s conduct during
Commerce’s investigation was not so egregious as to warrant the application of an adverse
inference across the board.