Xinjiamei Furniture (Zhangzhou) Co., Ltd. v. United States , 2013 CIT 30 ( 2013 )

Slip Op. 13-30
UNITED STATES COURT OF INTERNATIONAL TRADE
___________________________________
:
XINJIAMEI FURNITURE :
(ZHANGZHOU) CO., LTD. :
:
Plaintiff, :
:
v. : Before: Richard K. Eaton, Judge
:
UNITED STATES, : Court No. 11-00456
:
Defendant. :
:
___________________________________ :
OPINION
[Plaintiff’s motion for judgment on the agency record is granted, and the matter is remanded to the
Department of Commerce.]
Dated: March 11, 2013
Kutak Rock LLP (Lizbeth R. Levinson and Ronald M. Wisla), for plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E. Davidson, Director,
Claudia Burke, Assistant Director, Douglas G. Edelschick, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department of Justice; Office of the Chief Counsel
for Import Administration, United States Department of Commerce (Whitney Rolig), of counsel,
for defendant.
Eaton, Judge: At issue is whether Commerce’s selection of the surrogate value for
cold-rolled steel coil as part of a new shipper review under the antidumping duty order on Folding
Metal Tables and Chairs from the People’s Republic of China (“PRC”) was supported by
substantial evidence. Before the court is the motion for judgment on the agency record, made
pursuant to USCIT Rule 56.2, of plaintiff Xinjiamei Furniture (Zhangzhou) Co., Ltd. (“plaintiff”
Court No. 11-00456 Page 2
or “Xinjiamei”), an exporter of metal folding chairs from the PRC. By this motion, Xinjiamei
challenges the surrogate value for cold-rolled steel coil used in the Department of Commerce’s
(“Commerce” or the “Department”) Final Results. See Folding Metal Tables and Chairs from the
PRC, 76 Fed. Reg. 66,036 (Dep’t of Commerce Oct. 25, 2011) (final results of antidumping review
and new shipper review) (“Final Results”), and accompanying Issues and Decision Memorandum
for the Annual 2009–2010 New Shipper Review of the Antidumping Duty Order on Folding Metal
Tables and Chairs from the PRC (Dep’t of Commerce Oct. 18, 2011) (“Issues & Dec. Mem.”).
In making its argument, Xinjiamei insists that Commerce selected a “surrogate value [for
cold-rolled steel coil that] was aberrational” because 1) the sample size, on which Commerce’s
selected value is based, “was infinitesimal when compared” with that of plaintiff’s proposed
surrogate value and when compared with “Indian consumption of cold-rolled steel coil during the
Indian fiscal year coinciding with the POR”; 2) the selected value was three times higher than
other surrogate values on the record; and 3) Commerce’s selected value was not corroborated by
other record evidence, while plaintiff’s proposed surrogate value was corroborated by values it
placed on the record. Pl.’s Mem. of Points & Authorities in Supp. of Mot. for J. on Agency R. 2
(ECF Dkt. No. 21-1) (“Pl.’s Br.”).
Defendant argues that Commerce’s selection of a surrogate value was based on the best
available information (and its determination was thus supported by substantial evidence) because
the surrogate value “(1) was publicly available, (2) reflected broad market averages, (3) was
contemporaneous with the POR, (4) was tax-exclusive, and (5) was the most specific [Harmonized
Tariff Schedule (“HTS”)] category” to the type of steel used by plaintiff. Def.’s Mem. in Opp. to
Pl.’s Mot. for J. on Agency R. 4 (ECF Dkt. No. 23) (“Def.’s Br.”). Defendant further maintains
that the surrogate value was not aberrational. Def.’s Br. 4.
Court No. 11-00456 Page 3
For the following reasons, the plaintiff’s motion is granted and the matter is remanded.
STANDARD OF REVIEW
“The court shall hold unlawful any determination, finding, or conclusion found . . . to be
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
I. Background
On July 29, 2010, at Xinjiamei’s request, Commerce initiated a new shipper review under
the 2002 antidumping duty order covering the subject metal folding chairs. Folding Metal Tables
and Chairs from the PRC, 75 Fed. Reg. 44,767 (Dep’t of Commerce July 29, 2010) (initiation of
the new shipper review); Folding Metal Tables and Chairs from the PRC, 67 Fed. Reg. 43,277(Dep’t of Commerce June 27, 2002) (antidumping order). The period of review (“POR”) was June
1, 2009 through May 31, 2010. Because the PRC is a non-market economy country (“NME”),
Commerce was required to “calculate[] a normal value[1] for [Plaintiff] according to its factors of
production methodology.”2 Def.’s Br. 2. Plaintiff “participated in the new shipper review by
1
To determine an exporter’s “dumping margin” Commerce subtracts the “export
price or constructed export price of the subject merchandise” from the “normal value”. See 19
U.S.C. § 1677(35)(A).
2
Commerce’s factors of production methodology is used to determine the normal
value of exported merchandise by pricing the factors of production used to produce the
merchandise. Commerce does so by using surrogate data from “one or more market economy
countries that are—(A) at a level of economic development comparable to that of the [exporter’s]
( continued . . . )
Court No. 11-00456 Page 4
responding to all information requests issued by the Department and by submitting surrogate value
information to Commerce both before and after the preliminary results.” Pl.’s Br. 3; see Def.’s Br.
2. “In the preliminary results, Commerce selected India as the surrogate country[3] and used the
[Global Trade Atlas (“GTA”)] data for HTS[4] category 7211.2990[5] to generate a surrogate value
for cold-rolled steel coil of . . . approximately $1,942.80/metric ton (MT) based on an import
quantity of 716.882 MT.” Def.’s Br. 2; Folding Metal Tables and Chairs from the PRC, 76 Fed.
Reg. 35,832, 35,839 (Dep’t of Commerce June 20, 2011) (preliminary results of antidumping and
new shipper review).
During the administrative proceedings, plaintiff challenged Commerce’s use of the GTA
data and the surrogate value derived from it as failing to meet the “best available information”
( . . . continued )
country, and (B) significant producers of comparable merchandise” and then “add[ing] an amount
for general expenses and profit plus the cost of containers, coverings, and other expenses.” 19
U.S.C. §§ 1677b(c) (1), (4)(A)–(B) (2006).
3
Neither party challenges the selection of India as the surrogate country.
4
“HTS” refers to the Indian Harmonized Tariff System. Def’s Br. 6. The HTS is
India’s analogue to the Harmonized Tariff System of the United States (“HTSUS”). Both systems
are based on the World Customs Organization’s Harmonized Commodity Coding and
Classification System, and are used to determine the tariff classifications of goods entered into
India and the United States, respectively. Commerce regularly relies upon this type of data when
valuing inputs.
5
The GTA data is “data from the Indian Import Statistics as reported in the Global
Trade Atlas (GTA) for Indian Harmonized Tariff System (HTS) category 7211.2990.” Def’s Br.
6.
Court No. 11-00456 Page 5
standard.6 In addition to its case brief, plaintiff submitted information for an alternate surrogate
value to Commerce and other data it claimed reflected the value of cold-rolled steel coil outside of
India. Based on its submission, plaintiff argued that Commerce’s preferred value, based on the
GTA data, was aberrationally high and that its own proposed surrogate value constituted the best
available information. Pl.’s Final Surrogate Value Submission (P.R. 51) (Pl.’s Data Submission).
Specifically, plaintiff submitted, as an alternative value, advertising data from “JSW Steel
Limited, one of the four largest Indian producers of steel products” (“JSW advertised data”) which
covered the June 2009 to May 2010 POR. Pl.’s Data Submission 2. This data was derived from
information published on JSW’s website and the submission included calculations made by
plaintiff to adjust the pricing by backing out taxes. Pl.’s Data Submission 2. The surrogate value
from the adjusted JSW advertised data was substantially lower than the value derived from the
GTA data.7 To corroborate the proposed surrogate value, plaintiff submitted documents showing
“the average unit price of cold-rolled steel coil and sheet sold by JSW Steel [rather than the
advertised price] during the fiscal year April 1, 2009 and March 31, 2010” of $712.94/MT (“JSW
sales data”) taken from JSW’s Annual Report 2009–2010. Pl.’s Br. 5. As shall be seen, this latter
information did not coincide precisely with the POR.
6
Pursuant to statute, the information used by Commerce to value the factors of
production must be the “best available information regarding the values of such factors in a market
economy country or countries considered to be appropriate.” 19 U.S.C. § 1677b(c)(1).
7
The value in dollars fluctuates from $733.11/MT to $681.54/MT in plaintiff’s brief
and its submission to Commerce. Compare Pl.’s Br. 4, with Pl.’s Data Submission 2. Although
the difference is not explicitly explained, the value in rupees is uniformly 32.99 rs/kg in all sets of
papers. Therefore, the fluctuation seems to be due to currency valuation changes between the
submissions.
Court No. 11-00456 Page 6
In addition to the JSW data, Xinjiamei provided evidence relating to non-Indian pricing of
cold-rolled steel. This evidence included “monthly cold roll steel coil prices from Brazil”
(“Brazilian data”) reflecting the period of June 2009 to February 2010, “ex factory cold-rolled
steel prices from Northern Europe” (“Northern European data”) covering the period of February
23, 2009 to April 27, 2009, and “world export market ‘benchmark’ prices” (“Benchmark data”)
covering the period of July 2010 to December 2010, all of which were taken from the metals.com
website. Pl.’s Br. 5. The values reflected in these sources ranged from $524.12/MT8 to $743/MT.
Pl.’s Br. 5.
With respect to the volume of cold-rolled steel found in the data plaintiff placed on the
record, the JSW sales data also showed that Commerce’s GTA data represented less than
one-fiftieth of one percent of the cold-rolled steel production of only one Indian domestic
producer, JSW Steel. Commerce does not dispute that this is the case.
In the Final Results, Commerce continued to use the GTA data. See Final Results Fed.
Reg. at 66,037; Issues & Dec. Mem. at 3. The department acknowledged that “in the past [it]
considered high average unit values . . . based on relatively small aggregate quantities to be
potentially aberrational data.” Issues & Dec. Mem. at 3. Nonetheless, it stated that “it [did] not
automatically reject” data based on a small quantity if “other market data indicates that the per unit
values of those imports fall within a reasonable range.” Issues & Dec. Mem. at 3. It is worth
noting that, having made this statement, Commerce pointed to no other market information
indicating that its chosen surrogate value was within a reasonable range.
8
This number appears in the parties’ submissions in gross tons but has been
converted into MT here for ease of comparison.
Court No. 11-00456 Page 7
The Department also found that the other data offered by Xinjiamei was insufficient “to
demonstrate that the per-unit value under [the GTA data was] aberrational.” Issues & Dec. Mem.
3–4. According to Commerce, it disregarded the Brazilian data, the Northern European data, and
the Benchmark data because they did not sufficiently overlap with the POR and because they
represented export data from countries that were not potential surrogate countries. Issues & Dec.
Mem. at 4. For Commerce, “these export prices [were] not relevant to the prices paid by producers
[of the subject merchandise] in India because [they] do not reflect the domestic or import prices
paid by producers [of the subject merchandise] in India.” Issues & Dec. Mem. at 4. The
Department therefore concluded that Xinjiamei’s corroborative data did not demonstrate that the
GTA data was aberrational or that the JSW data was the best available information. Issues & Dec.
Mem. at 4.
Commerce also determined that the GTA data was more reflective of domestic prices in
India. Commerce “disagree[d] . . . that the existence of lower AUV prices of a single company
[JSW] constitutes sufficient evidence to compel the Department to question the use of the [GTA]
data.” Issues & Dec. Mem. at 5. Commerce reasoned that the JSW data was unreliable because
the data was sales offers, not records of actual sales, and came from only one company. Issues &
Dec. Mem. at 5. Because Commerce “prefers to value factors using prices that are broad market
averages,” the GTA data, representing all Indian imports, was preferable. Issues & Dec. Mem. at
5.
Based on these findings, Commerce took no steps to evaluate independently the reliability
or non-distortive quality of its preferred GTA data, even though it was aware that it was dealing
with a data set more than a thousand times smaller than others on the record. Notably, Commerce
did not discuss the sample size of its preferred GTA data at all, other than to observe that in one
Court No. 11-00456 Page 8
prior review it had found country-wide import statistics from a small data set preferable to a
specific company’s statistics based on a larger data set.9 In other words, Commerce only indicated
that it preferred country-wide data here, even though that data represented a comparatively tiny
sample. Commerce did not explain how such a small sample, even if based on country-wide data,
yielded a non-aberrational surrogate value.
II. Legal Framework
Under 19 U.S.C. § 1675(a)(2)(B), Commerce shall, upon request, conduct administrative
reviews “for new exporters and producers.” The purpose of these new shipper reviews is to
determine whether exporters or producers, whose sales have not been previously examined, are (1)
entitled to their own antidumping duty rates under an order, and (2) if so, to calculate those rates.
See Hebei New Donghua Amino Acid Co. v. United States, 29 CIT 603, 604, 374 F. Supp. 2d 1333,
1335 (2005).
Here, Commerce found that plaintiff was entitled to its own rate and commenced to
determine that rate by calculating normal value. When merchandise that is the subject of a new
shipper review is exported from a nonmarket economy country,10 such as the PRC, Commerce,
9
The determination to which Commerce cites, Prestressed Concrete Wire Strand
from the PRC, 75 Fed. Reg. 28,560 (Dep’t of Commerce May 21, 2010) (final determination of
sales at less than fair value) (“PC Strand”), was never appealed to this Court. It also deals with a
distinguishable ratio from that present here. There, the ratio of sample size of the underlying
import statistics to the sample size of the underlying company data was roughly 1:3. PC Strand’s
Issues & Dec. Mem. at Comment 1.b, 75 ITADOC 28560, 2010 WL 2150320 (ITA). Here, the
ratio of imports to sales is roughly 1:2000. Pl.’s Br. 12.
10
A “nonmarket economy country” is “any foreign country that [Commerce]
determines does not operate on market principles of cost or pricing structures, so that sales of
( continued . . . )
Court No. 11-00456 Page 9
under most circumstances, determines normal value by valuing the factors of production used in
producing the merchandise by employing surrogate data.11 The statute directs Commerce to value
the factors of production “based on the best available information regarding the values of such
factors in a market economy country or countries considered to be appropriate by the
[Department].” 19 U.S.C. § 1677b(c)(1). Specifically, Commerce’s task in a nonmarket economy
review is to determine, using surrogate costs, what a producer’s costs would be if the inputs were
valued at market prices. See Tianjin Mach. Imp. & Ex. Corp. v. United States, 16 CIT 931, 940,
806 F. Supp. 1008, 1018 (1992).
When determining prices for the factors of production, Commerce must decide what
evidence constitutes the best available information to determine their value. A reviewing court
determines not whether “the information Commerce used was the best available, but rather
whether a reasonable mind could conclude that Commerce chose the best available information.”
Zhejiang DunAn Hetian Metal Co., Ltd. v. United States, 652 F.3d 1333, 1341 (Fed. Cir. 2011)
(citation and internal quotation marks omitted). Nonetheless, Commerce’s determination cannot
( . . . continued )
merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. §
1677(18)(A). “Because it deems China to be a nonmarket economy country, Commerce generally
considers information on sales in China and financial information obtained from Chinese
producers to be unreliable for determining, under 19 U.S.C. § 1677b(a), the normal value of the
subject merchandise.” Shanghai Foreign Trade Enters. Co. v. United States, 28 CIT 480, 481, 318
F. Supp. 2d 1339, 1341 (2004). Therefore, because the subject merchandise comes from the PRC,
Commerce constructed normal value by pricing the factors of production using surrogate data
from India. See 19 U.S.C. § 1677b(c)(4).
11
Section 1677b(c)(4)(A) requires that “in valuing factors of production, [the
Department] shall utilize, to the extent possible, the prices or costs of factors of production in one
or more market economy countries that are . . . at a level of economic development comparable to
that of the nonmarket economy country.”
Court No. 11-00456 Page 10
be opaque as to methodology. Indeed, in making the determination, “Commerce must provide a
rational explanation for its choice.” Peer Bearing Co.-Changshan v. United States, 35 CIT __,
___, 752 F. Supp. 2d 1353, 1372 (2011) (citations omitted).
Commerce is further obligated to “establish[] antidumping margins as accurately as
possible.” Shakeproof Assembly Components v. United States, 268 F.3d 1376, 1382 (Fed. Cir.
2001). Thus, “[w]hen confronted with a colorable claim that the data that Commerce is
considering is aberrational, Commerce must examine the data and provide a reasoned explanation
as to why the data it chooses is reliable and non-distortive.” Mittal Steel Galati S.A. v. United
States, 31 CIT 1121, 1135, 502 F. Supp. 2d 1295, 1308 (2007) (citation omitted). In such a case, it
is not enough for Commerce to “summarily discard the alternatives as flawed,” Commerce must
also “evaluate the reliability of its own choice.” Shanghai Foreign Trade Enters. Co., Ltd. v.
United States, 28 CIT 480, 495, 318 F. Supp. 2d 1339, 1352 (2004); see also Guangdong Chem.
Imp. & Exp. Corp. v. United States, 30 CIT 1412, 1417, 460 F. Supp. 2d. 1365, 1369 (2006).
III. Commerce’s Selection of the GTA Data is Not Supported By Substantial Evidence
From a review of the record and of the facts and reasoning found in the Issues and Decision
Memorandum, the court concludes that Commerce has failed to provide a rational explanation for
its selection of the GTA data as the best available information on the record. Commerce’s
discussion in the Issues and Decision Memorandum skips a critical analytical step by failing “to
question the use of the” GTA data when other evidence on the record casts doubt on the reliability
of its choice. Issues & Dec. Mem. 5.
As noted above, this Court has repeatedly held that questionable data may not be chosen
“only on the claim that the data selected was better than other data” on the record. Mittal Steel
Court No. 11-00456 Page 11
Galati, 31 CIT at 1135, 502 F. Supp. 2d at 1308 (“When confronted with a colorable claim that the
data that Commerce is considering is aberrational, Commerce must examine the data and provide a
reasoned explanation as to why the data it chooses is reliable and non-distortive. Here, confronted
with data that indicates that Commerce chose low volume, aberrational data, Commerce did not
evaluate the data on the record in comparison to benchmarks, but instead relied only on the claim
that the data selected was better than other data from the acceptable surrogate countries.
Therefore, Commerce’s decision skips over [plaintiff’s] claim that [the selected] data is outside
Commerce’s own standard of acceptability, and thus avoids an important aspect of the problem
presented.” (citations omitted)). When data, giving a basis to question the reliability of a surrogate
value Commerce has selected is placed on the record, however, the Department must explain why
its selected data meets its “own standard of acceptability.” Id.; Shanghai Foreign Trade Enters.,
28 CIT at 495, 318 F. Supp. 2d at 1352 (“Commerce did not explain its decision to deviate from its
past practice, under which it normally would ensure that a small quantity of imports did not
produce a price that is aberrational relative to other sources of market value. Before Commerce
can choose among various values to select the most accurate, it must, consistent with its practice,
discard those that are unreliable. . . . Commerce [must] evaluate the reliability of its own choice.”);
Guangdong Chem., 30 CIT at 1417, 460 F. Supp. 2d. at 1369 (“Commerce’s analysis must do
more than simply identify flaws in the data sets it rejects.”).
The Department’s position is that it need not evaluate the GTA data as potentially
aberrational because Xinjiamei did not place sufficient evidence on the record indicating that the
GTA data was outside of the norm. In other words, Commerce argues that its rejection of the
Brazilian data, Northern European data, and Benchmark data left the record bare of any evidence
that the GTA data was aberrational. Curiously, in reaching this conclusion, Commerce did not
Court No. 11-00456 Page 12
address whether the JSW data provided a basis to doubt the accuracy of the GTA data.
The Department’s position is untenable. Xinjiamei did indeed place sufficient data on the
record for a reasonable mind to question whether the GTA data was aberrational. To start,
Xinjiamei demonstrated that the GTA data represented less than one-fiftieth of one percent of the
cold-rolled steel production of only one domestic producer, JSW Steel. See Issues & Dec. Mem. at
3 (“[Plaintiff] avers that the import statistics’ 716.882 metric tons of cold rolled steel coil imports
is ‘infinitesimal’ as compared to the consumption of cold rolled steel coil in India since the import
statistics represent 0.047 percent of JSW Steel Limited’s production of cold rolled steel coils and
sheet.”). Commerce does not dispute that this is the case. Indeed, the Department does not quarrel
with plaintiff’s conclusion that, because JSW steel was but one of four large Indian producers of
cold-rolled steel, the small size of the GTA data when compared to the JSW data also indicates that
the GTA data represents a truly miniscule percentage of overall Indian cold-rolled steel
production.
It is apparent that Commerce skipped a critical step by failing to explain why, in light of the
foregoing, its GTA data would not produce an aberrational surrogate value. That is, the evidence
produced by plaintiff is sufficient to cause any reasonable mind to seek some explanation as to
how such a small sample could be non-distortive and potentially “the best available information.”
See Zhejiang DunAn Hetian Metal, 652 F.3d at 1341. Indeed, where “the Commerce decision fails
to establish that the small amount [of imports underlying the selected data] was statistically or
commercially significant,” remand is appropriate for Commerce to do so, including issuance of an
instruction that Commerce “state its method for determining what is an insignificant quantity.”
Shanghai Foreign Trade Enters., 28 CIT at 495–96, 318 F. Supp. 2d at 1352–53. Cf. Trust Chem
Co. v. United States, 35 CIT __, __, 791 F. Supp. 2d 1257, 1265 (2011) (indicating that evidence
Court No. 11-00456 Page 13
showing that the “relative quantity of imports [underlying a surrogate value] is distortive” may be
enough, even absent evidence of price, to render data aberrational).
It is worth noting that the proposition that a small import volume may indicate that the data
relied upon is aberrational is not the same as the proposition that a small import volume makes the
data aberrational. Thus, the Government’s position that Commerce’s ordinary practice is not to
“automatically reject import data based on a low aggregate value if a comparison with other
market data indicates that the per-unit values of those imports fall within a reasonable range” is not
inconsistent with this opinion. Issues & Dec. Mem. at 3. Rather, a very small relative quantity of
imports triggers an obligation for Commerce to explain why the data is not aberrational. It does
not mean the data must be “automatically rejected.”
Commerce, in its Issues and Decision Memorandum, states that it will not “automatically
reject” a value based on a small sample if other market data indicates that the value falls within a
reasonable range of market-driven prices. Here, however, the Department points to no evidence,
let alone market evidence, that the GTA data yields a value within a reasonable range, and has
chosen to disregard evidence that the value is outside of this range. Issues & Dec. Mem. at 4.
As to the value of the steel coil itself, the disregarded evidence that Xinjiamei placed on the
record indicates that the per-unit value derived from the GTA data is significantly higher than
other values for cold-rolled steel coil on the world market. As noted, the additional data sets
reflected values ranging from $524.12/MT to $743/MT. When compared with the $1,943.80/MT
value derived from the GTA data, the difference in price, between two hundred and nearly four
hundred percent, is clearly substantial. See, e.g., Peer Bearing, 35 CIT at __, 752 F. Supp. 2d at1372–4 (remarking that a sixty percent price differential was substantial).
Court No. 11-00456 Page 14
The Department, however, concluded that the Brazilian data, the Northern European data,
and the Benchmark data were not probative because they did not overlap the POR precisely and
because they represented export data from countries that were not potential surrogates. It can be
presumed, however, that these countries were not candidates to be surrogates because they are at a
different stage of development than China, not because the prices were determined by other than
market forces. Peer Bearing Co.-Changshan v. United States, 35 CIT __, at __, 804 F. Supp. 2d.
1337, 1354 (2011) (“The statute contemplates the use of data from countries at a comparable level
of development as the nonmarket economy country as the source of a surrogate value; it does not
prohibit Commerce from considering data from developed countries as evidence to determine
which information is the best available.”) (citation omitted). Thus, while the prices might not
satisfy the requirements for surrogate values, they are sufficient to call into question the reliability
of the GTA data.
Next, Commerce failed to discuss further evidence that the GTA data did not represent
Indian domestic prices. That is, there was a significant disparity between the values derived from
the JSW advertised data, as confirmed by the JSW pricing data, and Commerce’s selected value.
See Pl.’s Br. 10 (“Commerce’s chosen surrogate of $1,943.80 per metric ton is almost three times
higher than the [advertised] JSW Steel price of $681.53 per metric ton.”). The per-unit value
derived from the JSW advertised data is $681.53/MT reflecting a divergence between the GTA
data and the other values on the record that is still well in excess of two hundred percent.
Commerce’s argument that the JSW data was not probative because it represented offered prices
and not actual sales is unconvincing. There is no evidence that the offered prices were not
legitimate and plaintiff placed on the record evidence that actual sales were made at prices not
markedly different from the offered prices. See Pl.’s Br. 5 (“[T]he average unit price of cold-rolled
Court No. 11-00456 Page 15
steel coil and sheet sold by JSW Steel during the fiscal year . . . coinciding with 10 months of the
period of review . . . [was] $712.94 per metric ton.”). While JSW’s average sales price does not
cover the entire POR, it represents sales for ten months of the twelve month period and is strong
evidence supporting the reliability of the offered prices.
It is evident that Commerce was premature in finding that the GTA data was preferable to
the JSW advertised data. That is, the Department was required to first determine whether the GTA
data was reliable and that it was not aberrational before comparing it to the JSW advertised data.
Where there are valid questions raised about the reliability of data based upon a small number of
imports this “court remands [the] issue to Commerce for further explanation in light of the
[conflicting] data.” Mittal Steel Galati, 31 CIT at 1135, 502 F. Supp. 2d at 1307; Shanghai
Foreign Trade Enters., 28 CIT at 495, 318 F. Supp. 2d at 1352 (“Before Commerce can choose
among various values to select the most accurate, it must, consistent with its practice, discard those
that are unreliable.”). As a consequence, the Final Results lack a lawful explanation, supported by
substantial evidence, for Commerce’s selection of the GTA data as the surrogate value for the
input of cold-rolled steel coil.
CONCLUSION AND ORDER
For the foregoing reasons, it is hereby
ORDERED that plaintiff’s motion for judgment on the agency record is GRANTED, and
Commerce’s Final Results are REMANDED; it is further
ORDERED that, upon remand, Commerce shall issue a redetermination that complies in
all respects with this Opinion and Order, is based on determinations that are supported by
substantial record evidence, and is in all respects in accordance with law; it is further
Court No. 11-00456 Page 16
ORDERED that, should Commerce continue using the GTA data, it must provide an
adequate explanation, supported by substantial evidence, as to why that data is reliable and
non-aberrational. In making this determination, Commerce must take into account the Brazilian
data, the Northern European data, the Benchmark data, the JSW advertised data, and the JSW price
data. Following that determination, the department shall determine a surrogate value for
cold-rolled steel coil based on the best available information standard. In reaching its
determination as to the best information available, Commerce shall expressly compare the merits
of any acceptable data sets on the record; it is further
ORDERED that the Department may reopen the record to solicit any information it
determines to be necessary to make its determination; it is further
ORDERED that the remand results shall be due on July 8, 2013; comments to the remand
results shall be due thirty (30) days following filing of the remand results; and replies to such
comments shall be due fifteen (15) days following filing of the comments.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: March 11, 2013
New York, New York