Beijing Tianhai Indus. Co., Ltd. v. United States

Slip Op. 14-104

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________
:
BEIJING TIANHAI INDUS. CO., LTD., :
:
Plaintiff, :
:
v. : Before: Richard K. Eaton, Senior Judge
:
UNITED STATES, : Court No. 12-00203
:
Defendant, :
:
NORRIS CYLINDER COMPANY, :
:
Defendant-Intervenor. :
____________________________________:

OPINION and ORDER

[Plaintiff’s USCIT Rule 56.2 motion is granted in this targeted dumping case and the Final
Determination is remanded to the Department of Commerce.]

Dated: September 9, 2014

Mark E. Pardo and Andrew T. Schutz, Grunfeld, Desiderio, Lebowitz, Silverman &
Klestadt LLP, of Washington, D.C., argued for plaintiff. With them on the brief was Brandon M.
Petelin.

Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, D.C., argued for defendant. With him on the
brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Deborah R. King, Senior
Counsel, Office of the Chief Counsel for Import Administration, United States Department of
Commerce, of Washington, D.C.

Edward M. Lebow and Nora L. Whitehead, Haynes and Boone, LLP, of Washington, D.C.,
argued for defendant-intervenor.

EATON, Judge: Before the court is plaintiff Beijing Tianhai Indus. Co., Ltd.’s

(“Tianhai” or “plaintiff”) USCIT Rule 56.2 Motion for Judgment on the Agency Record
Court No. 12-00203 Page 2

challenging the United States Department of Commerce’s (“Commerce” or “the Department”)

Final Determination published as High Pressure Steel Cylinders From the People’s Republic of

China, 77 Fed. Reg. 26,739 (May 7, 2012) (final determination of sales at less than fair value), and

accompanying Issues and Decision Memorandum (“Issues & Dec. Mem.”) (collectively, “Final

Determination”), and the resulting order published as High Pressure Steel Cylinders From the

People’s Republic of China, 77 Fed. Reg. 37,377 (June 21, 2012) (antidumping duty order) (the

“Order”). Resp’ts’ Mot. for J. on the Agency R. Pursuant to Rule 56.2 (ECF Dkt. No. 32).

In the Final Determination, Commerce found that plaintiff had engaged in “targeted

dumping” and, therefore, that it was permitted to apply an alternate methodology to calculate

plaintiff’s dumping margin. Issues & Dec. Mem. at cmt. 4. In making that finding, the

Department determined that plaintiff had engaged in a pattern of sales under 19 U.S.C. §

1677f-1(d) (2006) which operated to mask sales at less than fair value made during the October 1,

2010 through December 31, 2010 period (the alleged period of targeted dumping). Plaintiff

objects that (1) the methodology used by the Department to find that Tianhai engaged in a

“pattern” of targeted dumping is contrary to 19 U.S.C. § 1677f-1(d)(1) and unsupported by

substantial evidence; (2) in any case, the Department should have limited the application of its

targeted dumping remedy to only those sales that it identified as having been made during the

targeted time period; (3) the Department should have considered other valid commercial reasons

for the alleged pattern of targeted dumping; and (4) the Department improperly used its zeroing 1

methodology to calculate plaintiff’s rate after making its finding of targeted dumping. Pl.’s Mem.

1
Zeroing is a methodology used for calculating an exporter’s weighted average
dumping margin “where negative dumping margins (i.e., margins of sales of merchandise sold at
nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins for
sales of merchandise sold at dumped prices) are aggregated.” Union Steel v. United States, 713
F.3d 1101, 1104 (Fed. Cir. 2013).
2
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of Law in Supp. of Mot. for J. on the Agency R. Pursuant to Rule 56.2 1–2 (ECF Dkt. No. 32)

(“Pl.’s Br.”).

For the reasons set forth below, plaintiff’s motion is granted, in part, and defendant’s Final

Determination is remanded.

BACKGROUND

In 2011, in response to a petition filed by defendant-intervenor Norris Cylinder Company

(“Norris” or “defendant-intervenor”) alleging targeted dumping, the Department initiated an

antidumping duty investigation of high pressure steel cylinders from the People’s Republic of

China (“PRC”) and selected plaintiff as a mandatory respondent. High Pressure Steel Cylinders

from the PRC, 76 Fed. Reg. 33,213 (Dep’t of Commerce June 8, 2011) (initiation of antidumping

duty investigation); Issues & Dec. Mem. The period of investigation (“POI”) was October 1,

2010 through March 31, 2011, and the alleged period of targeted dumping was October 1, 2010

through December 31, 2010. Issues & Dec. Mem.

The Department issued its Preliminary Determination of sales at less than fair value on

December 15, 2011, finding that plaintiff had engaged in targeted dumping during the October 1,

2010 through December 31, 2010 period. High Pressure Steel Cylinders from the PRC, 76 Fed.

Reg. 77,964 (Dep’t of Commerce Dec. 15, 2011) (preliminary determination of sales at less than

fair value) (“Preliminary Determination”). In doing so, the Department used the targeted

dumping test that has come to be known as the Nails test. 2 That “methodology . . . involves a

2
“The Nails test derives its name from the cases in which it was first used.” Timken
Co. v. United States, 38 CIT __, __ n.3, 968 F. Supp. 2d 1279, 1283 n.3 (2014) (citing Certain Steel
Nails from the PRC, 73 Fed. Reg. 33,977 (Dep’t of Commerce June 16, 2008) (final
(footnote continued)
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two-stage test; the first stage addresses the pattern requirement [of 19 U.S.C. § 1677f-1(d)(1)(B)(i)

(2006)] and the second stage addresses the significant-difference requirement” of that statutory

provision. Preliminary Determination, 76 Fed. Reg. at 77,968. In applying the test, the

Department determined that there was “a pattern of prices for comparable merchandise that differs

significantly by time period (i.e., targeted dumping).” Preliminary Determination, 76 Fed. Reg.

at 77,968.

To calculate plaintiff’s antidumping duty rate, the Department used the

average-to-transaction (“A-T”) methodology3 because it found that its normally used

average-to-average (“A-A”) methodology4 could not properly account for the alleged targeted

dumping. Preliminary Determination, 76 Fed. Reg. at 77,968. To calculate Tianhai’s dumping

margin, the Department applied the A-T methodology, with zeroing, to all of plaintiff’s U.S. sales

during the POI, not only to those sales that the Department found to be “targeted” using the Nails

test. Preliminary Determination, 76 Fed. Reg. at 77,968.

In the Final Determination, the Department continued to use the Nails test to find that there

was a pattern of sales that differed significantly by time period. 5 It again insisted that the

differences could not be taken into account using the “A-A methodology because the A-to-A

determination of sales at less than fair value and partial affirmative determination of critical
circumstances); Certain Steel Nails from the United Arab Emirates, 73 Fed. Reg. 33,985 (Dep’t of
Commerce June 16, 2008) (notice of final determination of sales at not less than fair value)).
3
The A-T methodology compares “the weighted average of the normal values to the
export prices (or constructed export prices) of individual transactions.” 19 U.S.C. §
1677f-1(d)(1)(B).
4
The A-A methodology compares “the weighted average of the normal values to the
weighted average of the export prices (and constructed export prices) for comparable
merchandise.” 19 U.S.C. § 1677f-1(d)(1)(A)(i).
5
The Department made one adjustment to the dates of the sales within the allegedly
targeted period. That change is not challenged here.
4
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methodology conceals differences in price patterns between the targeted and non-targeted groups

by averaging low-priced sales to the targeted group with high-priced sales to the non-targeted

group.” Final Determination, 77 Fed. Reg. at 26,740; Issues & Dec. Mem. at cmt. 4. In using the

A-to-T methodology, the Department continued to apply its zeroing methodology to all of

plaintiff’s U.S. sales. Final Determination, 77 Fed. Reg. at 26,740; Issues & Dec. Mem. at cmt. 4.

This action challenging the Final Determination followed.

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. LEGAL FRAMEWORK

A. Statutory Framework

During an antidumping investigation, the Department ordinarily determines whether

dumping has occurred by using one of the two methodologies identified in 19 U.S.C. §

1677f-1(d)(1)(A). The general rule is that, when determining an exporter’s dumping margin, the

Department should compare the weighted average normal value of an exporter’s merchandise to

the average of the exporter’s export prices (or constructed export prices) during the POI. If the

difference between the weighted average normal value of an exporter’s merchandise and the

average of an exporter’s export prices is a positive number, then dumping is present. Thus, 19

U.S.C. § 1677f-1(d)(1)(A)(i) provides for an average-to-average comparison of an exporter’s

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transactions, a methodology known as A-A. 19 U.S.C. § 1677f-1(d)(1)(A)(ii) also permits the

Department to determine an exporter’s margin “by comparing the normal values of individual

transactions to the export prices . . . of individual transactions for comparable merchandise”

(“T-T”), but the Department’s regulations limit the use of this methodology. See 19 C.F.R. §

351.414(c)(2) (2012) (“The Secretary [of Commerce] will use the transaction-to-transaction

method only in unusual situations, such as when there are very few sales of subject merchandise

and the merchandise sold in each market is identical or very similar or is custom-made.”).

In enacting the statute, however, Congress recognized that there might be situations where

the general “methodology cannot account for a pattern of prices that differ significantly among

purchaser, regions, or time periods, i.e., where targeted dumping may be occurring.” Uruguay

Round Agreements Act, Statement of Administrative Action, H.R. DOC. NO. 103-316, vol. 1, at

843 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4178 (“SAA”). Congress anticipated that the

patterns of sales might be identifiable on the basis of “purchasers, regions, or time periods.” 6

SAA, H.R. DOC. NO. 103-316, vol. 1, at 843, reprinted in 1994 U.S.C.C.A.N. at 4178.

Accordingly, the statute provides that the Department

may determine whether the subject merchandise is being sold in the United States
at less than fair value by comparing the weighted average of the normal values to
the export prices (or constructed export prices) of individual transactions for
comparable merchandise, if—(i) there is a pattern of export prices (or constructed
export prices) for comparable merchandise that differ significantly among
purchasers, regions, or periods of time, and (ii) the administering authority explains
why such differences cannot be taken into account

using A-A or T-T. 19 U.S.C. § 1677f-1(d)(1)(B) (2006); SAA, H.R. DOC. NO. 103-316, vol. 1, at

843, reprinted in 1994 U.S.C.C.A.N. at 4178 (“Before relying on this methodology, however,

Commerce must establish and provide an explanation why it cannot account for such differences

6
As noted, in this case, Norris alleged targeting on the basis of time period.

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through the use of [A-A] or [T-T]”). Thus, the statute requires that the Department (1) identify a

pattern of pricing that differs significantly among purchasers, and (2) explain what about that

particular pattern makes the use of A-A or T-T inappropriate. If the Department finds that 19

U.S.C. § 1677f-1(d)(1)(B)(i) and 19 U.S.C. § 1677f-1(d)(1)(B)(ii) are satisfied, it may compare

the weighted average of the normal values to each individual export (or constructed export) price

when determining an exporter’s margin. Put another way, if both requirements of 19 U.S.C. §

1677f-1(d)(1)(B) are met, the Department may use A-T to determine the exporter’s dumping

margin.

“While the statute prefers the two general methodologies [(A-A and T-T)] over the

exception methodology [(A-T)], it is silent as to when to apply the general two methodologies.

Further, the statute is also silent as to the body of sales to which Commerce will apply the

exception methodology.” Chang Chun Petrochemical Co. v. United States, 37 CIT __, __, 906 F.

Supp. 2d 1369, 1375 (2013) (citation omitted). The so-called Chevron line of cases provides

guidance to Courts when a statute is silent or ambiguous. Chevron, U.S.A., Inc. v. Nat’l Res. Def.

Council, Inc., 467 U.S. 837, 842–45 (1984). “[A]gencies are entitled to formulate policy and

make rules ‘to fill any gap left, implicitly or explicitly, by Congress.’” SKF USA Inc. v. United

States, 254 F.3d 1022, 1030 (Fed. Cir. 2001) (quoting Chevron, 467 U.S. at 843). Thus, because

of the gap in the targeted dumping provision left by Congress, this Court has repeatedly held that

the Department’s policies filling that gap are entitled to some deference. See Timken Co. v.

United States, 38 CIT __, __ n.7, 968 F. Supp. 2d 1279, 1286 n.7 (2014); Gold East Paper

(Jiangsu) Co. v. United States, 37 CIT __, __, 918 F. Supp. 2d 1317, 1320–21 (2013); Chang Chun

Petrochemical, 37 CIT at __, 906 F. Supp. 2d at 1375; Mid Continent Nail Corp. v. United States,

34 CIT __, __, 712 F. Supp. 2d 1370, 1376–77 (2010).

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B. Regulatory Framework and Departmental Practice

Although the Department has the authority to promulgate regulations and establish

practices where Congress has left statutory gaps, its discretion is not unfettered. Moreover, once

the Department has promulgated a regulation, it is obliged to follow its own regulation so long as

the regulation remains in force. Pujiang Talent Diamond Tools Co. v. United States, 37 CIT __,

__, Slip Op. 13-58, at 15 (2013), aff’d 561 Fed. App’x 988 (Fed. Cir. 2014) (citing United States v.

UPS Customhouse Brokerage, Inc., 575 F.3d 1376, 1382 (Fed. Cir. 2009)). Where the

Department has not taken the formal step of promulgating a regulation, but has established a

practice, it must follow that practice unless it has provided an explanation for its changed

approach. See Jinxiang Yuanxin Imp. & Exp. Co. v. United States, 37 CIT __, __, Slip Op. 13-77,

at 13–14 (2013) (citation omitted).

1. Commerce’s Regulations

In 1997, as part of the implementation of the provisions of the Uruguay Round Agreements

Act, the Department promulgated regulations regarding the targeted dumping provisions of 19

U.S.C. § 1677f-1(d)(1)(B). Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296,

27,373–76 (Dep’t of Commerce May 19, 1997). In 2008, however, the Department issued a

notice, without first seeking specific public comment, withdrawing these regulations. Gold East

Paper, 37 CIT at__, 918 F. Supp. 2d at 1325; 19 C.F.R. § 351.414(f) (2007); Withdrawal of the

Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 73

Fed. Reg. 74,930 (Int’l Trade Admin. & Imp. Admin. Dec. 10, 2008) (“Withdrawal Notice”).

Prior to the issuance of the Withdrawal Notice, 19 C.F.R. § 351.414(f) contained the

following language:

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(f) Targeted dumping—(1) . . . the Secretary may apply the average-to-transaction
method . . . in an antidumping investigation if: (i) As determined through the use of,
among other things, standard and appropriate statistical techniques, there is targeted
dumping in the form of a pattern of export prices (or constructed export prices) for
comparable merchandise that differ significantly among purchasers, regions, or
periods of time . . . .
(2) Limitation of average-to-transaction method to targeted dumping. Where the
criteria for identifying targeted dumping under paragraph (f)(1) of this section are
satisfied, the Secretary normally will limit the application of the
average-to-transaction method to those sales that constitute targeted dumping under
paragraph (f)(1)(i) of this section.

19 C.F.R. § 351.414(f) (2007). The withdrawn regulation, therefore, required the Department to

identify the set of sales that made up the “pattern of export prices” constituting the targeted

dumping, and to limit its application of the A-T methodology to those sales. Thus, were the

regulation in effect for this case, the A-T methodology would be applied only for the October 1,

2010 to December 31, 2010 period. Following withdrawal, however, the regulation no longer

prohibited the Department from applying A-T to all of a respondent’s sales and thus no longer

restricted the use of A-T to only those sales that constitute the pattern of “targeted dumping.”

2. The Nails Test

In order to determine whether the requirements of 19 U.S.C. § 1677f-1(d)(1)(B)(i) have

been met under the Nails test, the Department engages in a two-step statistical analysis. The first

step of the test, also known as the “standard deviation test,” seeks to determine whether there is “a

pattern of sales” consistent with targeted selling of merchandise. To do so here, the Department

“determined the share of subject merchandise sales allegedly targeted by time period that were at

prices more than one standard deviation below the weighted-average price during all time periods,

targeted and not-targeted.” Def.’s Resp. to Pl.’s Mot. for J. upon the Agency R. 13 (ECF Dkt. No.

47) (“Def.’s Br.”) (citing Issues & Dec. Mem. at cmt. 4). The Department performed this “test on

9
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a product-specific basis, using the weighted-average price for the alleged targeted time period

(October through December 2010), and for the time period not alleged to be targeted (January

through March 2011).” Def.’s Br. 13–14 (citing Issues & Dec. Mem. at cmt. 4).

Under the standard deviation test, Commerce finds that a pattern of sales at differing prices

is present “if the volume of sales that are more than one standard deviation below the weighted

average price exceeds 33 percent of the total volume of the respondent’s sales of subject

merchandise during the allegedly targeted period.” Def.’s Br. 14 (citing Issues & Dec. Mem. at

cmt. 4). Thus, in a case in which targeting based on time-period has been alleged, the Department

compares the individual prices of the sales during the allegedly targeted period to the weighted

average price of all sales during that period in order to determine the range of sales prices, and

finds a pattern to be present if more than a third of those individual sales are at more than one

standard deviation away from the weighted average.

If the Department determines that more than 33 percent of the sales in the allegedly

targeted period are more than one standard deviation from the weighted average, i.e., that a pattern

of differing prices exists, it proceeds to the second step of the Nails test, also known as the “gap

test,” to determine if the identified pattern of differently priced sales represented a “significant

difference” in pricing. The Department

first calculates the difference between the weighted-average price of allegedly
targeted sales and the next higher weighted-average price of sales to a non-targeted
[time period] (the “target gap”). Next, Commerce calculates the average
difference, weighted by sales volume, between the prices to non-targeted [periods]
(the “non-target gap”). Finally, the agency compares the target gap to the
non-target gap. If the target gap exceeds the non-target gap for more than five
percent of the exporter’s sales to the alleged target by volume, Commerce finds that
targeted dumping occurred.

CP Kelco Oy v. United States, 38 CIT __, __, Slip Op. 14-42, at 5 (2014) (footnote omitted). In

other words, the Department looks to see if the variation in pricing between the targeted and

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non-targeted group is greater than the variation in pricing within the non-targeted group for more

than five percent of an exporter’s sales.

This Court has found these two steps to be a reasonable method for determining whether

the requirements of 19 U.S.C. § 1677f-1(d)(1)(B)(i) have been met. See JBF RAK LLC v. United

States, 38 CIT __, __, Slip Op. 14-78, at 14–15 (2014); CP Kelco Oy, 38 CIT at __, Slip Op. 14-42,

at 14–15; Timken, 38 CIT at __, 968 F. Supp. 2d at 1283; Mid Continent Nail, 34 CIT at __, 712 F.

Supp. 2d at 1377–78.

II. ANALYSIS

A. Plaintiff Failed to Exhaust its Administrative Remedies Regarding its “Pattern”
Argument

Plaintiff’s central argument was not made during the administrative proceedings before

Commerce. Plaintiff contends here, for the first time, that the legislative history and purpose of

19 U.S.C. § 1677f-1(d)(1)(B) show that the Department’s application of the Nails test in this case

was improper because the test can identify a pattern of targeted dumping based on non-dumped

sales. Specifically, it argues that the Department’s use of the Nails test is contrary to the intent of

Congress when Commerce only identifies an extremely small number of dumped sales as part of

the “pattern.” For plaintiff, because, here, the test can be met by identifying outlier sales that are

not at less than fair value, the test does not necessarily identify a “pattern” of sales at less than fair

value. Rather, according to plaintiff, it only identifies a pattern of sales at disparate pricing.

Thus, plaintiff argues that the Nails test fails to meet the statutory requirement of identifying a

“pattern” if a substantial number of the disparately priced sales are not also sales at less than fair

value (i.e., sales that are non-dumped). Pl.’s Br. 11–12.

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The Department and defendant-intervenor object to this argument being raised for the first

time in Tianhai’s brief before the court, and Tianhai concedes that it never made this argument

during the administrative proceedings. See Pl.’s Reply Br. 2–5 (ECF Dkt No. 50) (“Pl.’s Reply”).

Instead, plaintiff asserts that its failure to argue this position before the Department should be

excused under the “pure question of law” exception. Pl.’s Reply 2. This argument is unavailing.

“[W]here appropriate,” a Court shall “require the exhaustion of administrative remedies.”

28 U.S.C. § 2637(d) (2006); Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370,

1381 (Fed. Cir. 2013). “‘The exhaustion doctrine requires a party to present its claims to the

relevant administrative agency for the agency’s consideration before raising these claims to the

Court.’” Shandong Huarong Machinery Co. v. United States, 30 CIT 1269, 1305, 435 F. Supp.

2d 1261, 1292 (2006) (quoting Ingman v. U.S. Sec’y of Agric., 29 CIT 1123, 1126 (2005)). “This

court has discretion to determine when it will require the exhaustion of administrative remedies.”

Blue Field (Sichuan) Food Indus. Co. v. United States, 37 CIT __, __, 949 F. Supp. 2d 1311, 1321

(2013) (citation omitted). Accordingly, “failure to exhaust administrative remedies is not always

fatal to a party’s objections to administrative action,” and courts have excused a party’s failure to

meet the exhaustion requirement where the raised objection is a “pure question of law.”

Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT __, __, 968 F. Supp. 2d 1255,

1266–67 (2014) (discussing the exceptions).

One of the purposes of the exhaustion requirement is the “protect[ion of] administrative

agency authority.” Itochu Bldg. Prods. v. United States, 733 F.3d 1140, 1145 (Fed. Cir. 2013)

(citation omitted). For this reason, the “pure question of law” exception has only been applied

where “[s]tatutory construction alone is sufficient to resolve [the] case.” Consol. Bearings Co. v.

United States, 348 F.3d 997, 1003 (Fed. Cir. 2003). Thus, even where a question of statutory

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construction is raised, the claim must be one that requires no exercise of agency discretion. See

Itochu, 733 F.3d at 1146 (citing Agro Dutch Indus. v. United States, 508 F.3d 1024, 1029 (Fed. Cir.

2007)).

Plaintiff asserts that its failure to exhaust its administrative remedies should be excused

because its challenge is a pure question of law. First, it maintains that the pattern and explanation

requirements of 19 U.S.C. § 1677f-1(d)(1)(B) are unambiguous and are “explicit requirements

[that] Commerce must satisfy before resorting to an alternative price comparison methodology.”

Pl.’s Reply 2. According to plaintiff, its objection is a pure question of law “because Commerce

failed to satisfy the[] enumerated [pattern and explanation] requirements in the statute.” Pl.’s

Reply 2. Thus, plaintiff’s position is that 19 U.S.C. § 1677f-1(d)(1)(B) provides such a clear

congressional directive to the Department, that no exercise of agency discretion is needed to

determine whether its requirements have been met. The court is not persuaded by this argument.

This Court has repeatedly held that 19 U.S.C. § 1677f-1(d)(1)(B) is sufficiently ambiguous

to permit the Department some discretion as to what methodologies it may use to meet the

statutory pattern and explanation requirements. Indeed, as noted, this Court has upheld the Nails

test itself as a reasonable method for determining whether the requirements of 19 U.S.C. §

1677f-1(d)(1)(B)(i) have been met. See CP Kelco Oy, 38 CIT at __, Slip Op. 14-42, at 15; Mid

Continent Nail, 34 CIT at __, 712 F. Supp. 2d at 1377–78. Because the Department has some

discretion to determine the methodology it may use, this is not a case where the construction of a

statute may properly be considered without the input of the department to which its administration

is entrusted. See Fuwei Films (Shandong) Co. v. United States, 35 CIT __, __, 791 F. Supp. 2d

1381, 1384, 1385 (2011) (holding that the pure question of law exception “only might apply for a

clear statutory mandate that does not implicate Commerce’s interpretation of the statute under the

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second step of Chevron . . . . The pure question of law exception cannot apply [where an agency

has discretion] because its application would undermine the very purposes the exhaustion

requirement is designed to protect”).

Beyond its “pure question of law” claim, plaintiff further contends that the Department’s

commentary on other arguments advanced during the administrative proceess excuses its failure to

make its argument in the underlying proceeding. In the Final Determination, the Department

responded to several arguments that Tianhai made in its case brief attacking the Nails test’s

methodology, challenging the application of A-T to a respondent’s entire sales database, arguing

against the use of zeroing, and positing that Commerce should apply a de minimis standard. In

responding to these arguments, the Department explained its interpretation of the statute in relation

to the particular arguments that plaintiff advanced. See, e.g., Issues & Dec. Mem. at cmt. 4 (“The

Department finds that the language of [19 U.S.C. § 1677f-1(d)(1)(B)] of the Act does not preclude

adopting a similarly uniform application of the alternative A-to-T methodology for all transactions

when satisfaction of the statutory criteria suggests that application of the A-to-T methodology is

the appropriate method. The only limitations the statute places on the application of the

alternative A-to-T methodology are the satisfaction of the two criteria set forth in the provision.

When the criteria for application of the alternative A-to-T methodology are satisfied, [19 U.S.C. §

1677f-1(d)(1)(B)] does not limit application of the alternative A-to-T methodology to certain

transactions.” (footnotes omitted)). According to plaintiff, because the Department explained its

interpretation of 19 U.S.C. § 1677f-1(d)(1)(B) when rejecting these arguments, the Department’s

“claim that Commerce lacked an opportunity to articulate its interpretation of the statute is

baseless.” Pl.’s Reply 4 (citation omitted) (internal quotation marks omitted).

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While the Federal Circuit has recognized that the Court of International Trade may reach a

question not presented to the Department if “additional proceedings would [not] further develop

the interpretation offered,” doing so is not appropriate here. Agro Dutch Indus. v. United States,

508 F.3d 1024, 1029 n.4 (Fed. Cir. 2007). Here, the Department was never asked to make a

determination on, and did not directly address, whether the pattern requirement of 19 U.S.C. §

1677f-1(d)(1)(B) could be satisfied by a showing of disparately priced, but non-dumped, sales.

Because there is no indication that Commerce would not have addressed this question, brought up

here for the first time, it would have been “preferable to have the agency’s interpretation of the

statute that it is entrusted to administer, set forth on the administrative record.” Fuwei Films, 35

CIT at __, 791 F. Supp. 2d at 1384 (citations omitted). Preserving the Department’s authority to

directly address an issue in the first instance is one of the central purposes of the exhaustion

requirement, and the court will not abandon that purpose here by reaching an argument not plainly

raised before Commerce. See Itochu Bldg. Prods., 733 F.3d at 1145.

Accordingly, because plaintiff failed to exhaust its administrative remedy with respect to

its “pattern” argument, the court will not consider it.

B. The Department Did Not Adequately Explain Why A-to-A or T-to-T Could Not Take
into Account the Difference in Pricing

Before the Department, and again here, plaintiff argues that Commerce failed to meet the

explanation requirement of 19 U.S.C. § 1677f-1(d)(1)(B)(ii). As noted, that provision requires

the Department to explain why the differences in the pattern of prices identified in 19 U.S.C. §

1677f-1(d)(1)(B)(i) “cannot be taken into account” using the standard methodologies. Thus, if

Commerce seeks to use A-T, it must explain why it cannot use A-A and T-T. Here, the

Department’s two-sentence explanation for why the pattern it identified could not be taken into

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account by the standard methodologies was insufficient because that explanation did nothing more

than state the conclusion that the requirements of 1677f-1(d)(1)(B)(i) had been met.

After stating that it had “found targeted dumping for the final determination because there

was a pattern of prices that differ significantly by time period,” the Department continued that,

[i]n doing so, the Department finds that the pattern of price differences identified
cannot be taken into account using the standard A-to-A methodology because the
A-to-A methodology conceals differences in price patterns between the targeted
and non-targeted groups by averaging low-priced sales to the targeted group with
high-priced sales to the non-targeted group. Thus, the Department finds, pursuant
to [19 U.S.C. § 1677f-1(d)(1)(B)(ii)], that application of the standard A-to-A
methodology would result in the masking of dumping that is unmasked by
application of the alternative A-to-T methodology when calculating [plaintiff’s]
weighted-average dumping margin.

Issues & Dec. Mem. at cmt. 4. This explanation neither makes mention of how the Department

reached this conclusion nor references any record evidence supporting the conclusion. Moreover,

the explanation ignores the potential use of the T-T methodology entirely. In other words, the

Department’s purported explanation says nothing more than that Commerce has found a pattern of

differing prices and invokes the mathematical truism that, when you average a set of numbers, the

differences among the individual numbers averaged, cease to be apparent. Thus, it is the case that

any time a pattern of disparate pricing exists, averaging the prices will “mask” the differences in

the individual prices.

A demonstration that a pattern of disparate pricing exists is sufficient to satisfy 19 U.S.C. §

1677f-1(d)(1)(B)(i) because that is what the statute demands in that subsection. Identification of

a pattern, however, cannot be sufficient to also satisfy 19 U.S.C. § 1677f-1(d)(1)(B)(ii), which

creates a separate statutory explanation requirement, because to do so would render that second,

separately provided for requirement, mere surplusage. Otherwise, the Department’s satisfaction

of 19 U.S.C. § 1677f-1(d)(1)(B)(i) would in every case also satisfy 19 U.S.C. §

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1677f-1(d)(1)(B)(ii). Therefore, if the Department’s explanation here were sufficient, any time

that “a pattern of export prices (or constructed export prices) for comparable merchandise that

differ significantly among purchasers, regions, or periods of time” could be identified to satisfy the

requirement of 19 U.S.C. § 1677f-1(d)(1)(B)(i), a mere description of what happens when you

average a set of numbers would suffice to satisfy 19 U.S.C. § 1677f-1(d)(1)(B)(ii). The statute

requires more.

In creating an explanation requirement in 19 U.S.C. § 1677f-1(d)(1)(B)(ii), Congress

anticipated that “pattern[s] of prices that differ significantly among purchasers, regions, or time

periods,” could sometimes be accounted for without resorting to A-T. SAA, H.R. DOC. NO.

103-316, vol. 1, at 843, reprinted in 1994 U.S.C.C.A.N. at 4178. Accordingly, Congress required

the Department to explain why A-A and T-T cannot account for a pattern of disparate prices before

using A-T. SAA, H.R. DOC. NO. 103-316, vol. 1, at 843, reprinted in 1994 U.S.C.C.A.N. at 4178

(“Before relying on this methodology, however, Commerce must establish and provide an

explanation why it cannot account for such differences through the use of an average-to-average or

transaction-to-transaction comparison.”). Thus, if no explanation other than the bare-bones

invocation of the differing natures of the A-to-A and A-to-T methodologies would suffice to

satisfy 19 U.S.C. § 1677f-1(d)(1)(B)(ii), as defendant and defendant-intervenor would have it, that

statutory provision would be superfluous.

Here, the Department has supplied a conclusion but not an explanation. The

Department’s failure to provide an explanation sufficient to satisfy 19 U.S.C. §

1677f-1(d)(1)(B)(ii) was an error of law, and thus, a remand for the Department to provide such

explanation is required. On remand, the Department must do more than simply state that the

pattern identified to satisfy 19 U.S.C. § 1677f-1(d)(1)(B)(i) would be hidden using A-to-A. It

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must explain, based on record evidence, why the presence of the pattern renders A-to-A or T-to-T

inappropriate methodologies.

C. The Application of 19 C.F.R. § 351.414(f) (2007)

Plaintiff argues that 19 C.F.R. § 351.414(f) (2007) was improperly withdrawn and that the

Department’s application of A-T to all of its sales is contrary to that regulation. To support its

position, plaintiff relies on this Court’s decision in Gold East Paper, a decision that was issued

after the initial briefing in this case. 7 Gold East Paper, 37 CIT at __, 918 F. Supp. 2d at 1327–28;

Baroque Timber Indus. (Zhongshan) Co. v. United States, 37 CIT __, __ n.10, 925 F. Supp. 2d

1332, 1340 n.10 (2013); see also Timken, 38 CIT at __ n.8, 968 F. Supp. 2d at 1291 n.8.

This Court held in Gold East Paper that the Department’s 2008 withdrawal of 19 C.F.R. §

351.414(f) (2007) was in violation of the “Administrative Procedure Act’s (‘APA’) . . . notice and

comment requirements.” Gold East Paper, 37 CIT at __, 918 F. Supp. 2d at 1325 (citation

omitted); Withdrawal Notice, 73 Fed. Reg. 74,930. In particular, the Gold East Paper Court

concluded that the Department was required to provide pre-withdrawal notice and comment, and

rejected Commerce’s argument “that the withdrawal did not require notice and comment under the

‘good cause’ exception.” Gold East Paper, 37 CIT at __, 918 F. Supp. 2d at 1326–28. This

Court has similarly observed elsewhere, in dictum, that the Department’s “defense of the

withdrawal does not appear strong.” Baroque Timber, 37 CIT at __ n.10, 925 F. Supp. 2d at 1340

n.10; see also Timken, 38 CIT at __ n.8, 968 F. Supp. 2d at 1291 n.8.

7
The Department and defendant-intervenor have argued that this claim should be
deemed waived because of plaintiff’s failure to raise this issue in its opening brief. Because the
court finds that plaintiff’s argument fails on the merits, it declines to reach the waiver issue.
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While it may be that the Withdrawal Notice failed to comply with the APA’s notice and

comment requirement, plaintiff’s argument that the Department must continue to apply 19 C.F.R.

§ 351.414(f) (2007) in this case is unpersuasive. That is, even if Commerce erred in its issuance

of the Withdrawal Notice, that error is harmless as it applies to plaintiff, and the Department is not

bound by the withdrawn regulation here.

“It is well settled that principles of harmless error apply to the review of agency

proceedings.” Intercargo Ins. Co. v. United States, 83 F.3d 391, 394 (Fed. Cir. 1996). Although

the Federal Circuit has not passed on the applicability of the harmless error rule in the context of a

violation of the notice and comment requirements of the APA specifically, this Court and several

Courts of Appeals have considered the principle in this context. See, e.g., Impact Steel Canada

Corp. v. United States, 31 CIT 2065, 2073, 533 F. Supp. 2d 1298, 1305 (2007); United States v.

Reynolds, 710 F.3d 498, 514–24 (3d Cir. 2013) (collecting cases); United States v. Byrd, 419 Fed.

App’x 485, 490 (5th Cir. 2011) (“[W]e hold that the Attorney General’s APA violations were also

harmless error under the circumstances presented by Byrd.”); United States v. Dean, 604 F.3d

1275 (11th Cir. 2010); Conservation Law Found. v. Evans, 360 F.3d 21 (1st Cir. 2004); Sugar

Cane Growers Co-op of Fl. v. Veneman, 289 F.3d 89 (D.C. Cir. 2002); Riverbend Farms, Inc. v.

Madigan, 958 F.2d 1479 (9th Cir. 1992).

When determining whether a party is prejudiced by a violation of the APA, the court must

first identify the interest of the private party that is potentially prejudiced. The “relevant harm” to

be analyzed when the Department fails to comply with the APA’s notice and comment procedures

is whether “an interested party has lost the opportunity to alter the agency’s decision through full

participation in the regulatory process.” Parkdale Int’l, Ltd. v. United States, 31 CIT 1229, 1237,

508 F. Supp. 2d 1338, 1348 (2007) (citing Wind River Mining Corp. v. United States, 946 F.2d

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710, 715 (9th Cir. 1991)). In other words, the application of a particular regulation to a party is

not the harm that must be demonstrated to obviate agency action for failure to comply with notice

and comment procedures. 8 Rather, a party must show that it was injured by being prevented from

participating in a public discussion with the agency about the proposed regulation. See, e.g.,

Byrd, 419 Fed. App’x at 491 (“Byrd was also not prejudiced . . . . He neither proposes comments

he would have made during a comment period nor did he choose to involve himself in the

post-promulgation comment period.” (citation omitted) (internal quotation marks omitted)).

Where “the technical errors in the process used did not prevent the exchange of views,

information, and criticism between interested persons and the agency,” errors in following the

notice and comment requirements may be found to be harmless. Reynolds, 710 F.3d at 517, 518

(internal quotation marks omitted) (“Technical errors are often harmless absent a demonstration

that the challenger would have made a comment to the rule not considered by the agency because

these errors often do not prevent the purposes of notice and comment from being satisfied.” (citing

Riverbend Farms, 958 F.2d at 1487)).

Here, plaintiff can show no harm from its lost opportunity to alter the agency’s decision.

Public comments relevant to the Department’s decision to withdraw 19 C.F.R. § 351.414(f) (2007)

were submitted to the Department prior to the publication of the Withdrawal Notice, having been

submitted by other interested parties. Unlike those interested parties, Tianhai submitted no

comments to the Department either before or after the Withdrawal Notice was issued, and Tianhai

has identified no arguments it would have made that were not presented to the Department by

8
The court recognizes that there is some disagreement as to the proper harm to be
considered as part of a harmless error analysis for violations of the APA’s notice and comment
requirement. See Mid Continent Nail Corp. v. United States, 38 CIT __, __, Slip Op. 14-72, at
30–31 (2014).
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others. Accordingly, the Department’s failure to invite notice and comment prior to issuing the

Withdrawal Notice was harmless error as to Tianhai.

First, it is clear that a public conversation regarding the future enforcement of the targeted

dumping statute, including the scope of the application of A-T and, therefore, 19 C.F.R. §

351.414(f) (2007), was occurring between the Department and others interested in the issue, prior

to the issuance of the Withdrawal Notice. This conversation began, at least officially, when the

Department sought public comments on its targeted dumping methodology on October 25, 2007,

and continued through a second request for public comments on May 9, 2008, well before the

issuance of the Withdrawal Notice on December 10, 2008. Targeted Dumping in Antidumping

Investigations, 72 Fed. Reg. 60,651, 60,651 (Dep’t of Commerce Oct. 25, 2007) (request for

comment) (“First Comment Request”) (“[T]he Department requests comments and suggestions on

what guidelines, thresholds, and tests it should use in determining whether targeted dumping is

occurring.”); Proposed Methodology for Identifying and Analyzing Targeted Dumping in

Antidumping Investigations, 73 Fed. Reg. 26,371, 26,372 (Dep’t of Commerce May 9, 2008)

(request for comment) (“Second Comment Request”) (“[T]he Department requests comment on

the application of the alternative calculation methodology (average–to-transaction comparison)

and the conditions, if any, under which the alternative methodology should apply to all sales to the

target even if some sales of a control number do not pass the targeted dumping test.”) (collectively,

the “Comment Requests”).

Nineteen interested parties submitted comments to the First Comment Request, though

Tianhai did not. See December 7, 2010 Comments on Targeted Dumping in Antidumping

Investigations, IMPORT ADMINISTRATION, http://enforcement.trade.gov/download/targeted-

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dumping/comments-20071210/td-cmt-20071210-index.html. Several of those comments

discussed the proper application of the A-T methodology once a finding of targeted dumping has

been made. See Letter from David A. Hartquist, Executive Director, Committee to Support U.S.

Trade Laws, to The Honorable David Spooner, Assistant Secretary for Import Administration,

U.S. Department of Commerce (Dec. 10, 2007), available at http://enforcement.trade.gov/

download/targeted-dumping/comments-20071210/csustl-td-cmt-20071210.pdf (arguing that A-T

should be applied to all sales if more than 20 percent of an importer’s sales are found to be

targeted); Letter from Daniel L. Porter, Counsel for the Japan Iron & Steel Federation, to The

Honorable David Spooner, Assistant Secretary for Import Administration, U.S. Department of

Commerce (Dec. 10, 2007), available at http://enforcement.trade.gov/download/targeted-

dumping/comments-20071210/jisf-td-cmt-20071210.pdf (discussing the proper remedy once a

finding of targeted dumping has been made); Letter from Haruhiko Kuramochi, Executive

Managing Director, Japanese Machinery Center for Trade and Investment, to The Honorable

David Spooner, Assistant Secretary for Import Administration, U.S. Department of Commerce at

4–5 (Nov. 23, 2007), available at http://enforcement.trade.gov/download/targeted-dumping/

comments-20071210/jmc-td-cmt-20071210.pdf (“Because the application of the

average-to-transaction method is intended to unmask targeted dumping, there is no reason to apply

the average-to-transaction method to non-targets. . . . As suggested by the WTO Appellate Body,

non-targets are outside of the scope of targeted dumping, and therefore outside of the application

of the targeted dumping methodology. For non-targets, therefore, the average-to-average method

must apply. The average-to-transaction method should apply only to targets.”); Letter from

William A. Fennell, Stewart and Stewart, to The Honorable David Spooner, Assistant Secretary

for Import Administration, U.S. Department of Commerce (Dec. 10, 2007), available at

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http://enforcement.trade.gov/download/targeted-dumping/comments-20071210/stewart-stewart-t

d-cmt-20071210.pdf (arguing that A-T should be applied to all sales if more than 20 percent of an

importer’s sales are found to be targeted); Letter from Jeffrey D. Gerrish, Counsel for United

States Steel Corporation, to The Honorable David Spooner, Assistant Secretary for Import

Administration, U.S. Department of Commerce (Dec. 10, 2007), available at http://enforcement.

trade.gov/download/targeted-dumping/comments-20071210/us-steel-td-cmt-20071210.pdf

(arguing that A-T should be applied to all sales if more than 20 percent of an importer’s sales are

found to be targeted or where the extent of the targeting cannot be determined); Letter from Leo

W. Gerard, International President, Counsel for United Steelworkers, to The Honorable David

Spooner, Assistant Secretary for Import Administration, U.S. Department of Commerce (Dec. 10,

2007), available at http://enforcement.trade.gov/download/targeted-dumping/comments-

20071210/usw-td-cmt-20071210.pdf (arguing that A-T should be applied to all sales if more than

20 percent of an importer’s sales are found to be targeted).

In response to the Second Comment Request, fifteen interested parties submitted

comments on or before June 23, 2008. June 23, 2008 Comments on Targeted Dumping in

Antidumping Investigations, IMPORT ADMINISTRATION, http://enforcement.trade.gov/download/

targeted-dumping/comments-20080623/td-cmt-20080623-index.html. Here, too, several

interested entities also submitted comments relevant to 19 C.F.R. § 351.414(f) (2007). See Letter

from Daniel L. Schneiderman, Counsel for Appleton Papers, Inc. and Bridgestone Americas

Holding, Inc., to The Honorable David Spooner, Assistant Secretary for Import Administration,

U.S. Department of Commerce (June 23, 2008), available at http://enforcement.trade.gov/

download/targeted-dumping/comments-20080623/appleton-bridgestone-td-cmt-20080623.pdf

(arguing that A-T should be applied to all sales if more than 20 percent of an importer’s sales are

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found to be targeted); Letter from David A. Hartquist, Executive Director, Committee to Support

U.S. Trade Laws, to Secretary of Commerce, U.S. Department of Commerce (June 23, 2008),

available at http://enforcement.trade.gov/download/targeted-dumping/comments-20080623/

csustl-td-cmt-20080623.pdf (arguing that A-T should be applied to all targeted sales); Letter from

Kessiri Siripakorn, Minister (Commercial), Department of Foreign Trade, Ministry of Commerce

of Thailand, to Mr. David M. Spooner, Assistant Secretary for Import Administration, U.S.

Department of Commerce (June 6, 2008), available at http://enforcement.trade.gov/download/

targeted-dumping/comments-20080623/gov-thailand-td-cmt-20080623.pdf (seeking clarification

as to whether A-T would be applied to all sales or only targeted sales); Letter from David A.

Hartquist, Kelley Drye & Warren LLP, to Secretary of Commerce, U.S. Department of Commerce

(June 23, 2008), available at http://enforcement.trade.gov/download/targeted-dumping/comments

-20080623/kdw-td-cmt-20080623.pdf (arguing that A-T should be applied to all sales when 20

percent or more of sales are targeted); Letter from Katherine Lugar, SVP, Government Affairs,

Retail Industry Leaders Association, to The Honorable David Spooner, Assistant Secretary for

Import Administration, U.S. Department of Commerce (June 23, 2008), available at

http://enforcement.trade.gov/download/targeted-dumping/comments-20080623/rila-td-cmt-2008

0623.pdf (arguing that A-T should not be applied to all sales); Letter from Terence P. Stewart,

Stewart and Stewart, to The Honorable David Spooner, Assistant Secretary for Import

Administration, U.S. Department of Commerce (June 23, 2008), available at http://enforcement.

trade.gov/download/targeted-dumping/comments-20080623/stewart-stewart-td-cmt-20080623.pd

f (arguing that A-T should be applied to all sales when 20 percent or more of sales are targeted);

Letter from Jeffrey D. Gerrish, Counsel for United States Steel Corporation, to David Spooner,

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Assistant Secretary for Import Administration, U.S. Department of Commerce (June 23, 2008),

available at http://enforcement.trade.gov/download/targeted-dumping/comments-20080623/

ussteel-td-cmt-20080623.pdf (arguing that A-T should be applied to all sales if more than 20

percent of an importer’s sales are found to be targeted or where the extent of the targeting cannot

be determined).

Second, plaintiff submitted no comments in response to either of the two Comment

Requests and did not do so in response to the Department’s invitation of post-promulgation

comments in the Withdrawal Notice itself. That is, after the Withdrawal Notice was issued, the

Department solicited comments on the withdrawal. Withdrawal Notice, 73 Fed. Reg. at 74,931

(“Parties are invited to comment on the Department’s withdrawal of the regulatory provisions

governing targeted dumping in antidumping duty investigations. . . . To be assured of

consideration, written comments must be received not later than January 9, 2009.”).

While the Department’s solicitation of comments after publication of a rule does not

necessarily cure noncompliance with the notice and comment requirement under the APA, a

party’s failure to submit subsequent comment when given the chance to do so is evidence that it

would have had nothing to add had it been given the opportunity to comment in the first instance.

Moreover, even in its papers submitted in this action, plaintiff has failed to identify any argument

that it would have raised if the proper notice and comment procedures had been followed. See

Dean, 604 F.3d at 1289 (Wilson, J. concurring) (“[L]egal authority supports the proposition that

[plaintiff] suffered no prejudice because he didn’t show what comment he might have made on the

interim rule.” (citing Air Transp. Ass’n of Am. v. C.A.B., 732 F.2d 219, 224 n.11 (D.C. Cir. 1984)).

Consequently, even if the Department’s withdrawal of 19 C.F.R. § 351.414(f) (2007) was

in violation of the APA’s notice and comment requirement, that error was harmless as it relates to

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the plaintiff in this case. Accordingly, as part of its analysis on remand in this case, the

Department need not adhere to the requirements of 19 C.F.R. § 351.414(f) (2007). The

Department, however, is free to limit the application of A-T to only the sales it identifies as

targeted on remand, should it determine that such a limitation is appropriate.

D. Deferred Issues

Plaintiff also argues that the Department was (1) required to consider whether there were

alternate explanations for the alleged targeted dumping, (2) that the Department was not permitted

to employ its zeroing methodology, 9 and (3) that the Department should have considered whether

the number of dumped sales was too small to justify application of the targeted dumping remedy.

Each of these issues may be rendered moot as a result of the Department’s determinations on

remand. The Department has indicated that, “[s]ince the time of the underlying investigation in

this case, [it] has continued to develop its methodology for examining the existence of masked

dumping . . . .” Def.’s Br. 18 n.4. Should, for example, the Department employ this new

methodology, and should it result in a finding that targeted dumping did not occur, the court’s

conclusions on each of these issues would be rendered advisory.

CONCLUSION and ORDER

For the foregoing reasons, it is hereby

ORDERED that plaintiff’s motion for judgment on the agency record is granted, in part,

and Commerce’s final determination is remanded; it is further

9
Although the court does not reach the issue here, it is worth noting that the Federal
Circuit has “repeatedly addressed zeroing and has held 19 U.S.C. § 1677(35)(A) ambiguous and
deferred to Commerce’s reasonable interpretation of that statute.” Union Steel, 713 F.3d at 1104.
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ORDERED that, on 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

ORDERED that, on remand, the Department may, in its discretion, choose to make a

determination in accordance with its new targeted dumping methodology mentioned supra part

II.D.; it is further

ORDERED that, should the Department continue to find that the application of the A-to-T

methodology is appropriate, it must adequately explain why the standard methodologies cannot

account for the pattern identified under 19 U.S.C. § 1677f-1(d)(1)(B)(i); it is further

ORDERED that the Department may, in its discretion, reopen the record to solicit any

additional information it deems necessary to make its determinations; and it is further

ORDERED that the remand results shall be due on January 7, 2015; 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.

IT IS SO ORDERED.

Dated: September 9, 2014
New York, New York

/s/ Richard K. Eaton
Richard K. Eaton

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