                                           Slip Op. 

                  UNITED STATES COURT OF INTERNATIONAL TRADE


 BOHLER BLECHE GMBH & CO KG, et al.,

                Plaintiffs,

        v.

 UNITED STATES,                                         Before: Richard W. Goldberg, Senior Judge
                                                        Court No. 17-00163
                Defendant,
        and

 NUCOR CORP. and SSAB ENTERPRISES
 LLC,

                Defendant-Intervenors.


                                   OPINION AND ORDER
[Sustaining the Department of Commerce’s Final Results of Redetermination Pursuant to Court
Remand.]
                                                            Dated: February 1, 2019
        David E. Bond and Ron Kendler, White and Case, LLP, of Washington, D.C., for
plaintiffs.

        Vito S. Solitro, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant Attorney General, Tara K. Hogan,
Assistant Director, Jeanne E. Davidson, Director, and Nikki Kalbing, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.,
for defendant.

       Roger B. Shagrin and Paul W. Jameson, Schagrin Associates, and Alan H. Price and
Christopher B. Weld, Wiley Rein, LLP, of Washington, D.C., for defendant-intervenors.

       Goldberg, Senior Judge: Before the court now are the Final Results of Redetermination

Pursuant to Court Remand, ECF No. 55 (Oct. 9, 2018) (“Remand Results”), issued by the

Department of Commerce (“the Department” or “Commerce”) in its antidumping duty

investigation of certain carbon and alloy steel cut-to-length plate from Austria. See Certain
Court No. 17-00163


Carbon and Alloy Steel Cut-to-Length Plate from Austria, 82 Fed. Reg. 16,366 (Dep’t

Commerce Apr. 4, 2017) (final determ.) (“Final Determination”), and accompanying Issues &

Decision Mem. (“I&D Mem.”). Plaintiffs Bohler Bleche GmbH & Co. KG, Bohler International

GmbH, voestalpine Grobblech GmbH, and voestalpine Steel & Service Center GmbH

(collectively, “Plaintiffs”) filed suit, challenging Commerce’s methodology for selecting foreign

like products. The court remanded the Final Determination to Commerce for further

proceedings. Bohler Bleche GMBH & Co. v. United States, 42 CIT __, 324 F. Supp. 3d 1344

(2018) (“Bohler I”). Commerce’s Remand Results now comply with the court’s remand order

and are supported by substantial evidence and in accordance with law; therefore, the

Department’s determination is sustained.

                                        BACKGROUND

       In its Final Determination, the Department designed a model-match methodology,

pursuant to 19 U.S.C. § 1677b(a)(1)(A), for the purposes of identifying suitable “foreign like

products” with which to compare the exported subject merchandise.1 Final Determination and

accompanying I&D Mem. As part of that process, Commerce created merchandise groups, each

assigned a control number (“CONNUM”), meant to group together “identical merchandise” used

to match home market sales with U.S. sales. The Department compared the weighted-average of

export sales within each CONNUM to the weighted-average of home market sales in that same

CONNUM. I&D Mem. cmt. 1. As part of this process, the Department created a hierarchy of

product characteristics, the third of which was QUALITY, which would be used for the purposes

of sorting merchandise based on various quality-related characteristics. Id.



       1
       The court previously sustained the Department’s determination that the model-match
methodology need not further account for process. Bohler I, 42 CIT at __, 324 F. Supp. 3d at
1354. Thus, the sole issue on remand was that surrounding the QUALITY and GRADE fields.
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       Plaintiffs proposed their own methodology, called CONNUM2, “that replaced the

QUALITY field (which reported the type of steel and the chemical composition) with a GRADE

field (which reported the gross estimation of the cost of alloy).” Remand Results at 4 (citing

Pls.’ Questionnaire Resp. B-13–14 (July 15, 2016), P.R. 163–174). Alternatively, Plaintiffs

requested a number of changes to Commerce’s methodology, including that the QUALITY field

be placed first in the hierarchy, and that a QUALITY subcategory be added specifically for high

alloy tool steel products. I&D Mem. cmt. 1. In response, Commerce moved the QUALITY field

to first in the hierarchy. Id. Ultimately, Commerce’s methodology produced a weighted average

dumping margin of 53.72%, Final Determination, and Plaintiffs challenged those results.

       On review, the court faulted Commerce’s determination for “fail[ing] to account for

commercially significant physical differences based on alloy content.” Bohler I, 42 CIT at __,

324 F. Supp. 3d at 1350. The court found that “Commerce’s methodology [could not] be

sustained because it allow[ed] subject merchandise to be cast as ‘identical’ to dubiously similar

foreign like products,” in contradiction of statute. Id., 42 CIT at __, 324 F. Supp. 3d at 1352

(citing 19 U.S.C. § 1677b(a)). What’s more, the court found that “[t]hroughout the investigation,

the Department largely ignored Plaintiffs’ central argument: that the Department’s methodology

allows comparisons of products with commercially distinct physical characteristics . . . to

determine whether” dumping occurred. Id. Therefore, the court disregarded Commerce’s

insistence that the challenges to the model-match methodology were untimely. Id. The court

found Commerce’s selected methodology unreasonable for insufficiently accounting for alloy

contents and remanded to the Department so that Commerce could “amend its model-match

methodology” so that a new model could be produced to differentiate between “similar” and

“identical” products. Id., 42 CIT at __, 324 F. Supp. 3d at 1354. Accordingly, Commerce was



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ordered to “design a model-match methodology in [its] investigation that accounts for all

commercially significant physical differences” and “apply recalculated dumping margins

consistent with its redetermination of its model-match methodology.” Id., 42 CIT at __, 324 F.

Supp. 3d at 1355.

       On remand, the Department has now “reconsidered its model-match methodology” and

“intends to use [Plaintiffs’] proposed alternative model-match methodology (i.e., CONNUM2

which replaces the QUALITY field with a GRADE field) and to recalculate [Plaintiffs’]

dumping margins and the all-others rate.” Remand Results at 1–2. Commerce’s revised

methodology “replaced the QUALITY product characteristic field with a GRADE field to

account for all commercially significant differences, including alloy content.” Id. at 7. The

Department viewed Plaintiffs’ CONNUM2 proposal from the underlying investigation as the

only option that would “account for all commercially significant physical differences,” namely

alloy content. Id. at 9–10. This change resulted in a revised antidumping duty margin of

28.57%. Id. at 10.

       In its comments on the Remand Results, Plaintiffs encourage the court to sustain

Commerce’s determination. They note that not only is the adoption of CONNUM2 reasonable,

“the Department has the discretion to choose any [reasonable] methodology.” Pls.’ Comments in

Support of the Final Results of Redetermination Pursuant to Court Remand 3, ECF No. 57 (Nov.

8, 2018). Commerce, on the other hand, issued the Remand Results under respectful protest, see

Remand Results at 2 (citing Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir.

2003)), maintaining its view that the court incorrectly determined that Plaintiffs “timely raised

[their] arguments concerning Commerce’s model-match methodology in [their] July 15, 2016,

questionnaire responses,” id. at 6.



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                                          DISCUSSION

       The court now sustains Commerce’s determinations as both: 1) based on an option in

conformance with the court’s prior order and 2) supported by substantial evidence and in

accordance with law. The Department’s altered methodology accounts for physical differences

based on alloy content and, per the court’s prior order, results in a reasonable determination.

Accordingly, Commerce’s Remand Results are sustained.

       The statute requires that Commerce compare “[f]oreign like product[s],” defined either as

identical merchandise or similar merchandise, SKF USA, Inc. v. United States, 537 F.3d 1373,

1375 (Fed. Cir. 2008), in such a manner as to allow for a “fair comparison,” 19 U.S.C.

§ 1677b(a). While it is true that the Department’s prior methodology ran counter to the

directives of the statute, see Bohler I, 42 CIT at __, 324 F. Supp. 3d at 1352 (“Commerce’s

methodology cannot be sustained because it allows subject merchandise to be cast as ‘identical’

to dubiously similar foreign like products, when the statute plainly requires a different

approach.”), generally this court grants Commerce substantial discretion in its review of the

Department’s chosen model match methodology, SKF USA, Inc., 537 F.3d at 1379. Commerce’s

altered methodology not only differentiates between identical and similar products, it also

provides a reasonable basis for conducting a fair comparison. Whereas Commerce’s prior

methodology neither aligned with statutory directives nor resulted in fair comparisons, see

Bohler I, 42 CIT at __, 324 F. Supp. 3d at 1352, the methodology chosen on remand is

reasonable as it fairly compares commercially significant differences in physical characteristics.

       Accordingly, the court finds the Department’s determination—that is, adopting

CONNUM2 and the resultant rate—to be reasonable as it is supported by substantial evidence

and in accordance with law.



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                                       CONCLUSION

       For the foregoing reasons, the court SUSTAINS Commerce’s determination in full and

enters judgment in the Department’s favor.


                                                                    /s/ Richard W. Goldberg
                                                                        Richard W. Goldberg
                                                                                Senior Judge
Dated: February 1, 2019
New York, New York




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