Mittal Steel Galati S.A. v. United States

Slip Op. 07-110

UNITED STATES COURT OF INTERNATIONAL TRADE

MITTAL STEEL GALATI S.A.,
FORMERLY KNOWN AS ISPAT SIDEX
S.A.,
BEFORE: Pogue, Judge
Plaintiff,
Court No. 05-00311
v.

UNITED STATES, PUBLIC VERSION

Defendant,

IPSCO STEEL., INC.

Defendant-Intervenor.

[Commerce’s determination affirmed-in-part and remanded-in-part;
Plaintiff’s Motion for Judgment on the Agency Record denied]

Decided: July 18, 2007

Arent Fox Kintner Plotkin & Kahn (John M. Gurley, Nancy A.
Noonan) for Plaintiff.

Peter D. Keisler, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(David F. D’Allessandris, Trial Attorney) for Defendant.

Schagrin Associates (Roger B. Schagrin) for Defendant-Intervenor.

OPINION

Pogue, Judge: In this action, Plaintiff Mittal Steel Galati,

S.A. (“Mittal” or “Plaintiff”) seeks judicial review of the final

results of the 2002-2003 administrative review, conducted by the

United States Commerce Department (“the Department” or “Commerce”),
Ct. No. 05-00311 Page 2
of the antidumping duty order on cut-to-length carbon steel plate

from Romania. See Certain Cut-to-Length Carbon Steel Plate from

Romania, 70 Fed. Reg. 12,651 (Dep’t Commerce March 15, 2005) (final

results and final partial rescission) (“Final Results”).

Mittal challenges three of Commerce’s data selection

decisions, all contained in the Final Results. Specifically,

Mittal protests: (1) Commerce’s decision to value Plaintiff’s

recycled iron scrap factor as a material input, instead of

assigning it a value of zero or providing an appropriate offset to

the assigned value; (2) Commerce’s choice of a surrogate value for

limestone; and (3) Commerce’s rejection of data – to be used in

deriving surrogate financial ratios – from the financial statements

for Mittal’s Algerian affiliate, Ispat Annaba. Mittal also asks

the court to order the re-liquidation of subject merchandise

entries that were liquidated prior to the expiration of the

statutory time limit for appeal, and prior to Mittal’s application

for a preliminary injunction.

Pending before the court is Plaintiff’s USCIT R. 56.2 motion

for judgment on the agency record. For the reasons stated herein,

the court remands for reconsideration Commerce’s decision to value

Plaintiff’s recycled iron scrap factor and its choice of a

surrogate value for limestone. The court affirms Commerce’s

rejection of the financial statement from Ispat Annaba. Further,

the court declines to exercise its authority to order re-

liquidation.
Ct. No. 05-00311 Page 3

Background

Mittal Steel Galati, S.A., formerly known as Ispat Sidex S.A.,

is the producer of certain cut-to-length carbon steel plates in

Romania. These products are covered by an antidumping duty order

that was issued in 1993. See Certain Cut-to-Length Carbon Steel

Plate from Romania, 58 Fed. Reg. 44,167 (Dep’t Commerce Aug. 19,

1993)(antidumping duty order). Commerce conducted an

administrative review of this antidumping duty order for entries

during the period from August 1, 2002 to July 31, 2003 (the “period

of review” or “POR”). See Certain Cut-to-Length Carbon Steel Plate

from Romania, 69 Fed. Reg. 54,108 (Dep’t Commerce Sept. 7,

2004)(preliminary results and notice of intent to rescind in

part)(“Preliminary Results”); see also Final Results, 70 Fed. Reg.

12,651.1

It is a fundamental premise of antidumping law that, in

1
The antidumping duty order establishes an estimate of the
antidumping duty rate (the “cash deposit” rate) that will be
assessed on the goods covered by the order at the time of entry.
See Decca Hospitality Furnishing LLC. v. United States, 30 CIT
__, __, 427 F.Supp. 2d 1249, 1251 (2006). As the United States
antidumping duty regime is a retrospective system, the
administrative review establishes the actual antidumping duty
rate. See 19 CFR § 351.212 (2006)(“Unlike the systems of some
other countries, the United States uses a 'retrospective'
assessment system under which final liability for antidumping and
countervailing duties is determined after merchandise is
imported.”); see also Am. Signature Inc. v. United States, 31 CIT
__, 477 F. Supp. 2d 1281, 1282 (2007).
Ct. No. 05-00311 Page 4

establishing an antidumping duty rate (whether prospectively, as

the initial cash deposit rate set during an initial antidumping

investigation, or as a result of the retrospective assessment

conducted during the administrative review), Commerce is charged by

Section 731 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1673

(2000)2 with determining the difference between the “normal value”

of the subject merchandise and the “export price” or the

“constructed export price,” which is the price at which the subject

merchandise is sold in the United States market. See Dorbest Ltd.

v. United States, 30 CIT __, __, 462 F. Supp. 2d 1262, 1265 n.1

(2006).

For market economy countries, the “normal value” is the “price

of the foreign merchandise in its country of origin, in an

appropriate third country, or the foreign product's cost of

production.” Id.; see 19 U.S.C. § 1677b(a). In the case of non-

market economy countries (“NME’s”), due to the fact that the market

does not operate based on market-determined prices or the

intersection of supply and demand, the cost of the goods cannot be

based upon the prices attributed to them by the selling companies.

Dorbest 30 CIT at __, 462 F. Supp. 2d at 1265 n. 1; see also

Magnesium Corp. of Am. v. United States, 166 F. 3d 1364, 1368 (Fed.

Cir. 1999) (“[T]he prices of the goods produced in an NME are

2
Further citations to the Tariff Act of 1930 are to the
relevant provision in Title 19 of the U.S. Code, 2000 edition.
Ct. No. 05-00311 Page 5

subject to discrepancies which distort their value.”)(quoting

Magnesium Corp. of Am. v. United States, 20 CIT 1092, 1095, 938 F.

Supp. 885, 890 (1996). As a result, Commerce constructs the

“normal value” of goods from an NME by assigning a value to the

inputs of the goods, based on the “factors of production,” and

extrapolating the “normal” value based on that information.3 The

value assigned to the inputs of the goods is known as a “surrogate

value” and is generally determined by identifying the cost of

3
See Dorbest, 30 CIT at __, 462 F. Supp. 2d at 1265 n.1
(“the antidumping statute authorizes Commerce to approximate
normal value based on the cost of producing the foreign
merchandise (with a margin of profit factored in).” In
particular, the statute reads:
(c)Nonmarket economy countries
(1) In general
If
(A)the subject merchandise is exported from a
nonmarket economy country, and
(B) the administering authority finds that
available information does not permit the
normal value of the subject merchandise to be
determined under subsection (a) of this
section,
the administering authority shall determine the normal
value of the subject merchandise on the basis of the
value of the factors of production utilized in
producing the merchandise and to which shall be added
an amount for general expenses and profit plus the cost
of containers, coverings, and other expenses. Except
as provided in paragraph (2), the valuation of the
factors of production shall be 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 administering
authority.

19 U.S.C. § 1677b(c).
Ct. No. 05-00311 Page 6

inputs in a comparable market economy country. See 19 U.S.C. §

1677b(c); Dorbest, 30 CIT at __, 462 F. Supp. 2d at 1265 n.1. In

calculating these costs, the Statute generally requires that

Commerce seek to determine an accurate dumping margin. See

Dorbest, 30 CIT at __, 462 F. Supp 2d. at 1268 (“The term ‘best

available’ is one of comparison, i.e., the statute requires

Commerce to select, from the information before it, the best data

for calculating an accurate dumping margin.”); see also Lasko Metal

Prods., Inc. v. United States, 43 F. 3d 1442, 1443 (Fed. Cir.

1994). To this end, in making its data choices, Commerce normally

considers the quality, specificity and contemporaneity of the data

and prefers to use public, country-wide data, where it is

available. See Goldlink Indus. Co. v. United States, 30 CIT __,

__, 431 F. Supp. 2d 1323, 1337 (2006); Freshwater Crawfish Tail

Meat from the People’s Republic of China, 66 Fed. Reg. 20,634

(Dep’t Commerce Apr. 24, 2001) (ffinal results and final partial

rescission), Issues and Decision Mem. (cmt. 2).

Halfway through the period of review, in the administrative

review at issue here, Commerce changed Romania’s status from a non-

market to a market economy country, effective January 1, 2003.

Def.’s Mem. in Opp’n to Pl.’s Mot. for J. Upon the Agency R. 3

(“Def.’s Br.”). As a result Commerce determined that, for the

purposes of this administrative review, it would treat Romania as

an NME for the period from August 1 to December 31, 2003, and as a
Ct. No. 05-00311 Page 7

market economy country from January 1 to July 31, 2003. Id.; see

Preliminary Results, 69 Fed. Reg. at 54,108-109. Therefore,

Commerce calculated a normal value using surrogate values, in

addition to using the statutory market economy analysis. Mittal’s

challenges relate to Commerce’s data choices in the calculation of

the normal value for the portion of the POR for which Romania was

considered by Commerce to be an NME. The court has jurisdiction

over the action pursuant to 28 U.S.C. § 1581(c).

Standard of Review

When reviewing Commerce’s final determination in an

administrative review under 19 U.S.C. § 1516a, the court upholds

Commerce’s determinations, findings, or conclusions when they are

supported by substantial evidence on the record, and otherwise in

accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). Specifically,

the court reviews the agency’s legal interpretation of the

governing statutes--whether or not issued by formal notice-and-

comment rule-making--to confirm that such interpretation is in

accordance with law. See, e.g., Chevron U.S.A. Inc. v. Natural

Resources Defense Council Inc., 467 U.S. 837, 842-43 (1984); Zenith

Elec. Corp. v. United States, 988 F. 2d 1573, 1582 (Fed. Cir.

1993); cf. Christensen v. Harris County, 529 U.S. 576, 587(2000)

(citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). The

agency’s factual determinations are reviewed to determine whether
Ct. No. 05-00311 Page 8

there is substantial evidence in the record supporting the agency’s

findings. Ta Chen Stainless Steel Pipe, Inc. v. United States, 298

F. 3d 1330, 1335 (Fed. Cir. 2002) Substantial evidence review

requires weighing the totality of the evidence, id.,4 to determine

whether the agency’s factual findings are reasonable when viewed

in light of that complete record. Nippon Steel Corp. v. United

States, 458 F. 3d 1345, 1351 (Fed. Cir. 2006).

Analysis

1. Assignment of a Surrogate Value to Mittal’s Recycled
Iron Scrap Input

As noted above, in calculating a normal value for goods from

an NME country, Commerce assigns a surrogate value to the various

inputs that are used to manufacture the subject merchandise covered

by the antidumping duty order. Dorbest, 30 CIT at __, 462 F. Supp.

2d at 1265 n.1; 19 U.S.C. § 1677b(c). In order to ascertain the

factors of production that were used for the subject merchandise,

Commerce sends questionnaires to the exporters subject to the

investigation. Def.’s Br. 3. After a verification process,

Commerce then selects an appropriate surrogate value for the goods.

4
“To determine if substantial evidence exists, we review
the record as a whole, including evidence that supports as well
as evidence that ‘fairly detracts from the substantiality of the
evidence.’" Ta Chen Stainless Steel Pipe, 298 F. 3d at 1335
(quoting Atl. Sugar, Ltd. v. United States, 744 F. 2d 1556, 1562
(Fed. Cir. 1984)).
Ct. No. 05-00311 Page 9

Id. at 3-5.

In some investigations, the remnants or by-products of one

part of the production process (the cost of which is already

accounted for) are re-utilized in a secondary production process.

To re-value these re-cycled inputs in evaluating the costs of the

secondary production could result in counting the cost of that

factor of production twice. Therefore, as a general rule, when

Commerce can verify that scrap was produced from an earlier stage

of the production process, and that it is utilized in a later stage

of the production process, Commerce will value the scrap input at

zero, and not assign a surrogate value to the scrap input. Def.’s

Br. 10 (“Typically, Commerce does not assign a surrogate value to

recycled products because the factors used in producing the

recycled by-products have already been reported.”).

This general rule appears applicable to Mittal, which is a

fully integrated steel mill that manufactures the subject

merchandise from start to finish (that is to say from the

production of coke to the production of liquid steel and then the

rolling of steel slabs into the subject merchandise). Pl.’s Reply

to Def.’s & Def.-Intervenor’s Mem. in Opp’n to Pl.’s Mot. J. Agency

R. 2-3 (“Pl.’s Reply”). As a result, in this administrative

review, Mittal reported the factors of production used for each

stage of the production process. Id. In its response to

Commerce’s questionnaire regarding Mittal’s factors of production,
Ct. No. 05-00311 Page 10

Mittal “requested Commerce not to value the recycled iron scrap as

the factors of production for such scrap are already part of the

integrated factors reported.” Pl’s Mem. of P. & A. in Supp. of its

R. 56.2 Mot. J. Agency R. 7 (“Pl.’s Br.”) 7. Mittal’s response

stated:

In this field we have reported the consumption of self-
produced scrap which re-entered the production process,
per 1 MT of heavy plate. Scrap is introduced in the
refractory and steel works plant to produce liquid steel.
No surrogate value should be applied to this factor as
the factors needed to produce the recycled scrap are
already reported.

Pl.’s Br. 7 (quoting Letter from Coudert Brothers LLP to the U.S.

Department of Commerce, Case No. A-485-803 Re: Certain Cut-to-

Length Steel Plate from Romania (December 22, 2003), Prop. Doc. No.

569, Pl.’s App. 4 (“Section D Questionnaire Response”) at 11.

In its Issues and Decision Memorandum for the Final Results of

the Administrative Review (“Issues and Decision Mem.”),5 Commerce

announced its contrary decision to assign a value to Mittal’s iron

scrap product. Commerce explained:

In this case, [Mittal] did not request a scrap offset,
supply adequate documentation for the recycled scrap, or
provide a reasonable alternative methodology to account
for these inputs. The burden is on the respondent to
create an adequate record to substantiate its claim for

5
Memorandum from Barbara E. Tillman to Joseph A. Spetrini,
Issues and Decision Memorandum for the Final Results and Final
Partial Recission of Certain Cut-to-Length Carbon Steel Plate
from Romania, Dep’t Commerce (March 17, 2005), available at
http://ia.ita.doc.gov/frn/0503frn/E5-1127.txt.
Ct. No. 05-00311 Page 11

an offset . . . . [Mittal] has not met its burden and has
not provided any evidence on the record to support its
claim for an offset.

Issues and Decision Mem., at 27 (Cmt. 12).

Mittal argues that by assigning a value to Mittal’s scrap

input, Commerce double-counts the cost of those inputs, valuing

them a first time when they initially entered the production

process, and then valuing them a second time when they were used as

scrap product in a latter portion of the production process.

Mittal claims that by double-counting the cost of these inputs,

Commerce runs afoul of statutory and court strictures that require

Commerce to calculate the antidumping margin as accurately as

possible. See Lasko, 43 F. 3d at 1443.

Mittal argues that, while it is true that they did not request

an offset for its iron scrap product whether the scrap input is

valued at “zero” or is instead added in as a factor of production,

with that value then “offset”, the result is the same, i.e.,

ultimately the scrap input is not valued. Pl.’s Br. 10. Mittal

also argues that it has previously reported its scrap input in the

same way in Commerce’s investigations of similar products, covering

in part the same time period, without requesting a scrap offset,

and Commerce did not assign a surrogate value to Mittal’s scrap

input. Id. As an example, Mittal points to Certain Hot-Rolled

Carbon Steel Flat Products from Romania, and the first

administrative review thereof (conducted for 2002-2003). Pl.’s Br.
Ct. No. 05-00311 Page 12

12; see Certain Hot-Rolled Carbon Steel Flat Products from Romania,

66 Fed. Reg. 49,628 (Dep’t Commerce Sept. 28, 2001) (final

determination); Certain Hot-Rolled Carbon Steel Flat Products From

Romania, 70 Fed. Reg. 34,448 (Dep’t Commerce June 14, 2005)(final

results).

In the proceedings for hot-rolled carbon flat steel products

from Romania, the second review of which overlaps the same time

period as the proceeding under review here, Mittal claims that

recycled iron scrap was valued at zero, and, as is the case here,

no formal request for an offset was made. The fact that Commerce

seemingly changed its methodology, without explaining the change or

inconsistency, according to Plaintiff, implicates a reliance

interest that companies have in a past methodology. Pl.’s Br. 14;

see Böwe-Passat v. United States, 17 CIT 335, 339 (1993); Fujian

Mach. & Equip. Imp. & Exp. Corp. v. United States, 25 CIT 1150,

1169, 178 F. Supp. 2d 1305, 1327 (2001); Shikoku Chems. Corp. v.

United States, 16 CIT 382, 388, 795 F. Supp. 417, 421 (1992)

(“[p]rinciples of fairness prevent Commerce from changing its

methodology at this late stage”).

Mittal also argues that it had no opportunity to comply with

any new policy that would have required it to formally request an

offset, stating that Commerce’s questionnaire does not include a

requirement to request such a “scrap offset.” Pl.’s Br. 12.

Plaintiff claims that when Commerce instituted its new methodology,
Ct. No. 05-00311 Page 13

Plaintiff should have had the opportunity to “address the new

methodology which Commerce adopted in the Final Results.” Id. at

14.

Finally, Mittal argues that, despite Commerce’s assertions to

the contrary, it did provide sufficient documentation to account

for the amount of input used at specific stages of the production

process. In particular, Mittal points to its Section D

questionnaire response and its first supplemental questionnaire

response, in which Mittal stated that it reported all of the

factors of production that go into the production of the subject

merchandise and the recovered iron scrap. Pl.’s Br. 15; Section D

Questionnaire Response, Prop. Doc. No. 569, Pl.’s App. 4 at 11;

Letter from Coudert Brothers LLP to the U.S. Department of

Commerce, Case No. A-485-803 Re: Certain Cut-to-Length Steel Plate

from Romania (February 11, 2004), Prop. Doc. No. 611, Pl.’s App. 5

at 11, Ex. 17 (“First Supplemental Questionnaire Response”).

Mittal also provided additional information to explain “an apparent

discrepancy between the recycled iron scrap factors of production

reported and the total scrap produced.” Pl.’s Br. at 16. See

Letter from the Coudert Brothers LLP to the U.S. Department of

Commerce, Case No. A-485-803 (May 17, 2004), Prop. Doc. No. 634,

Pl.’s App. 14 (“Second Supplemental Questionnaire Response”) at 6-7

and at Exs. 13-14.

While Commerce concedes that it “[t]ypically [] does not
Ct. No. 05-00311 Page 14

assign a surrogate value to recycled products because the factors

used in producing the recycled by-products have already been

reported,” Def.’s Br. 10, it argues that its decision in this

review to assign a surrogate value to the scrap input here is

supported by the record.

Commerce specifically claims that during the administrative

review “Mittal Steel failed to demonstrate the amount of recycled

scrap it actually produced and consumed during the production of

subject merchandise.” Id. at 14. Commerce states that Mittal only

provided estimates of the amount of iron scrap reintroduced into

the production process, did not provide any calculations of the

amount of iron scrap, did not allocate the amount of scrap used in

the production of subject versus non-subject merchandise, and never

provided an actual amount of recycled iron scrap used in

production. Id. at 14-15 (citing First Supplemental Questionnaire

Response, Prop. Doc. No. 611, Pl. App. 5. Exs. 17, 18; Second

Supplemental Questionnaire Response, Prop. Doc. No. 634, Pl.’s App.

14 at 6-7 and Ex. 13-14). Additionally, Commerce points to the fact

that Mittal also purchased iron scrap. Def.’s Br. 15 (citing

Section D Questionnaire Response, Prop. Doc. No. 569, Pl.’s App. 4

at 10-11.

Commerce also responds that Mittal’s claim – that there is

sufficient information on the record for Commerce to calculate the

amount of recycled scrap used – is unavailing because, even were
Ct. No. 05-00311 Page 15

Commerce able to calculate the amount of recycled scrap used by

subtracting the purchased scrap from the total amount of scrap

used, that calculation nonetheless would not reveal how much

recycled scrap was used or allocated between subject and non-

subject merchandise, and therefore provides no information as to

the actual amount of such recycled scrap that was consumed in the

production of the subject merchandise.6 Def.’s Br. 16.

6
Ipsco Steel, Inc., the Defendant-Intervenor, points out
that “[s]crap recovered from the production of non-subject
merchandise does not qualify for a scrap offset (even though it
is required to be reported as an input if used in producing the
subject merchandise) because the inputs used in producing this
recycled scrap (i.e. the inputs used to produce the non-subject
merchandise from which this recycled scrap was generated) are not
reported in response to Commerce’s questionnaire.” Opp’n of Def.-
Intervenor Ipsco Steel Inc. to Pl.’s Mem. in Supp. of its R. 56.2
Mot. J. Agency R. 8 (“Def.- Intervenor’s Br.”)(emphasis in
original). The Defendant-Intervenor also notes the similarity of
this situation to that of Non-Malleable Cast Iron Pipe Fittings
from the PRC, where Commerce could not properly ascertain the
source of the scrap used. Commerce did not, however, make this
argument or explanation in the Issues and Decision Mem., in which
it claimed that Mittal “did not . . . supply adequate
documentation for the recycled scrap.” Issues and Decision Mem.
at 27 (cmt 12).
Defendant states, in its brief, that “Mittal Steel failed to
demonstrate the amount of recycled scrap it actually produced and
consumed during the production of the subject merchandise.”
Def.’s Br. 14 (emphasis added). Other than this statement,
however, Defendant appears to be basing its argument on the lack
of actual figures for the consumption of recycled iron scrap in
the production of subject merchandise rather than recycled iron
scrap produced during the production of subject merchandise.
In fact, Commerce claims several times in its brief that
Mittal did not provide the amount of iron scrap consumed in the
production of subject merchandise. Def.’s Br. 14 (“Specifically,
Mittal Steel failed to demonstrate the amount of scrap it
actually consumed and failed to allocate its recycled scrap over
(continued...)
Ct. No. 05-00311 Page 16

Commerce further claims that the administrative determinations

that Mittal cites addressing the use of the same or similar

methodology, in which Commerce did not assign a surrogate value to

the recycled scrap product, are of no moment. Commerce contends

that the court is foreclosed from considering the methodologies

adopted in other determinations because the record data in those

cases are not on the record as part of the underlying

administrative proceeding at issue here. Commerce concedes that

Appendix 7, which is the Factor Valuation Memorandum for Certain

Hot-Rolled Steel Flat Products from Romania, can be considered part

of the record here, but argues that that determination is not

relevant as it only indicates that in a review for a different

product, recycled scrap was not valued. Def.’s Br. 12. Commerce

claims that Mittal’s reliance on proceedings in other reviews for

other products is equally unavailing, as none of the determinations

6
(...continued)
both its subject and non-subject merchandise.”); see also id. at
11, 15, 16.
Mittal claims, in its Reply Brief, that “the reported self-
produced iron scrap factor of production already accounts for the
production of subject merchandise and not the universe of
products made by [Mittal].” Pl.’s Reply Br. 8. Mittal further
claims that “in order to account for the liquid steel used only
in the production of subject merchandise, [Mittal] adjusted the
recycled scrap FOP by the yields and production of the slab
caster and the plate mills.” Id.
The court notes that there is nothing on the record that
indicates that Commerce was questioning the production of the
recycled iron scrap rather than its usage. Consequently, it
appears that the Defendant-Intervenor’s argument about the
production of recycled scrap is a red herring.
Ct. No. 05-00311 Page 17

to which Mittal points are for the same order. Def.’s Br. 13.7

Mittal counters this argument by the Defendant-Intervenor by

asserting that it has reported the scrap product at the same level

of specificity as all of the other materials reported. Pl.’s Reply

Br. 3. Additionally, Mittal claims it calculated the contribution

of recycled iron scrap to the subject merchandise, saying that the

worksheets provided demonstrated the allocations of scrap in the

production of subject merchandise. Mittal states that it “provided

both the stage-specific input consumption and the cumulative input

consumption over all of the stages of the production process for

the subject merchandise.” Pl.’s Reply Br. 8. It then adjusted the

recycled scrap by the yields of the slab caster and the plate

mills, utilizing “the same reporting methodology applied to all

material inputs in this proceeding.” Id.

Finally, Mittal notes that in Certain Hot-Rolled Carbon Steel

Flat Products from Romania, Commerce valued recycled iron scrap at

zero both in its investigation and in the first administrative

7
Defendant-Intervenor also notes that there is no change in
practice at all here, stating that it has long been the policy of
Commerce to ascertain what portion of the scrap utilized is
generated by the production of the subject merchandise (versus
production of the non-subject merchandise). Def.-Intervenor’s
Br. 13-14. Defendant-Intervenor claims that any difference in
treatment alleged by Mittal is based on a factual difference,
i.e., that in cases where the offset is given, Commerce is able
to ascertain what percentage of recycled scrap is generated from
the subject merchandise as opposed to the non-subject
merchandise, or where the respondent produces only the subject
merchandise. Id.
Ct. No. 05-00311 Page 18

review. Mittal claims that the integrated production processes for

hot-rolled steel and steel plate are identical until the liquid

steel stage (at which point the difference lies in the finishing of

the products). Mittal argues that even though hot-rolled steel is

not covered by the same order, it is so like the goods at issue

here that Commerce’s treatment of the recycled scrap input here is

a departure from its previous methodology. Pl.s Br. 11-12.

The court finds it is necessary to remand this issue to

Commerce. The agency’s policy is that “Commerce will offset the

respondent’s cost of production by the value of a reported by-

product where the respondent’s questionnaire responses indicate

that it was sold, or where the record evidence demonstrates clearly

that the by-product was re-entered into the production process.”

Def.’s Br. 11. Here, Commerce’s decision not to follow its own

policy is unsupported by substantial evidence; nor did Commerce

“articulate[] a rational connection between the facts found and the

choices made.” Celanese Chems. Ltd. v. United States, 31 CIT __,

__, Slip Op. 07-16 at 38 (January 29, 2007) (citing Burlington

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)).

Construed generously, Commerce’s determination gives the

following reasons for providing a value to the recycled scrap: (1)

Mittal never requested a scrap offset; (2) Mittal did not provide

the actual amount of scrap used in manufacturing the subject

merchandise; (3) there was no means of distinguishing between
Ct. No. 05-00311 Page 19

recycled and purchased scrap inputs; and (4) there was no means of

distinguishing between recycled scrap that had been used in the

production of subject merchandise as opposed to the production of

non-subject merchandise.

As for the first point, it appears that Mittal would not have

known to request such an offset based on its experience in other

investigations and reviews.8 More importantly, nowhere in the

questionnaires Mittal received (which it received prior to the

issuance of the Preliminary Results) was there any indication that

Mittal was required to ask for an offset in order for the recycled

scrap not to receive a value.

As for Commerce’s remaining points, the evidence on the record

demonstrates the contrary. Specifically, the evidence on the

8
See Memorandum from Christopher Riker to Gary Tavermen Re:
Preliminary Determination of Sales at Less than Fair Value:
Certain Hot-Rolled Carbon Steel Flat Products from Romania,Dept’
Commerce (April 23, 2001), Prop. Doc. 735 at Ex. 10, Pl.’s App. 7
at 2 (showing that recycled iron scrap for the same producer for
a product with a similar production process was not valued) .
Commerce argues before the court that the court should not take
into account the Final Factors Valuation Memo in the 2002-2003
Administrative Review of Certain Hot-Rolled Carbon Steel Flat
Products from Romania, (Dep’t Commerce June 6, 2005) or from the
Preliminary Factors Valuation Memo. in the 2002-2003
Administrative Review of Certain Hot-Rolled Carbon Steel Flat
Products from Romania, (Dep’t Commerce Nov. 29, 2004), as these
were not part of the record of the proceeding. The court notes
that these are all documents that are part of the public record,
involving the same parties and a similar product, and would be of
relevance in deciding whether or not Commerce had a different
prior past practice. However, the court need not consider the
documents that were not part of the administrative record of this
proceeding in order to decide this issue.
Ct. No. 05-00311 Page 20

record demonstrates that Mittal provided specific usage

calculations for recycled scrap product on a per Metric Ton basis.9

This information was provided for the subject merchandise produced.

Mittal provided a worksheet that indicated the consumption, by

kilogram per metric ton, for the various inputs used to calculate

the subject merchandise. See Second Supplemental Questionnaire

Response, Prop. Doc. No. 634, Pl.’s App. 14 at Ex. 14. This table

provides a break-out used for Iron Scrap Recycled and Iron Scrap

9
In responding to the questionnaire, Mittal stated:

Exhibit 17 of [Mittal’s] February 10, 2004 supplemental
response contained (a) the step-by-step detailed
explanation of how [Mittal] derived the recycled scrap
FOP (the Recycled Iron Scrap FOP Worksheet) and (b) a
worksheet with monthly scrap consumptions for each of
BOF1 and BOF3. A revised version of Exhibit 17 of
[Mittal’s] February 10, 2004, supplemental response,
containing minor corrections, is attached at Exhibit 13
of this response.

See also id. at Ex. 13,(“The specific consumption of recycled
iron scrap at BOF1 for the production of 1 MT of liquid steel was
derived as follows...”).
Defendant-Intervenor contends that while Mittal reported
factor data based on only inputs that entered the blast furnaces
that produced the subject inputs, the scrap was recovered from
multiple sources including the finishing of non-subject
merchandise. Def. Intervenor’s Br. 11. Mittal refutes this point
by stating that it uses the same means of reporting recycled iron
scrap as any other input, by adjusting the recycled scrap factor
of production by “the yields and production of the slab caster
and the plate mills” in order to calculate the contribution of
recycled iron scrap to subject merchandise. Pl.’s Reply Br. 8.
Mittal further explained that “[t]he reporting of all of the
material inputs that went into the production of steel slab,
including the recycled iron scrap, was adjusted to reflect only
the slab corresponding to the cost groups used to manufacture the
subject merchandise.” Id. at 3-4.
Ct. No. 05-00311 Page 21

Purchased used in the manufacture of subject merchandise.

Commerce’s decision is therefore inconsistent with the record. To

say that Mittal’s table does not “document” the recycled scrap

entering into the production of subject merchandise, or that this

submission is not an appropriate allocation methodology, is

therefore to say that none of the factors of production reported by

Mittal were allocated properly between subject and non-subject

merchandise. But Commerce makes no such claim. On the contrary,

Commerce accepted Mittal’s filings for other factors. See

Memorandum from Ann Barnett-Dahl and Brandon Farlander, Case

Analysts, to Richard Weible, Office Director, Office VII Re:

Preliminary Results of Review: Certain Cut-to-Length Carbon Steel

Plate from Romania; Factors of Production Valuation Memorandum for

the Preliminary Results, (Dep’t Commerce Aug. 30, 2004), Prop. Doc.

No. 698, Pl.’s App. 3 at Attach. 1 (“Factors Valuation Mem.”).

Thus Commerce relies on the fact that Mittal did not provide data

that was, in fact, on the record. Consequently, Commerce’s

determination not to value the recycled iron scrap as zero is not

supported by substantial evidence. On remand, Commerce must review

Mittal’s filings and address specifically their sufficiency for

making the required calculations.

2. Commerce’s choice of Surrogate Value for Limestone

When choosing surrogate values during an investigation or
Ct. No. 05-00311 Page 22

administrative review, Commerce selects a country that, to the

extent practicable, will be the source of data to value the

individual factors of production. See 19 U.S.C. § 1677b(c)(1)&(4);

19 C.F.R. § 351.408(c)(1) & (2)10; see also Dorbest, 30 CIT at __,

462 F. Supp. 2d at 1270. For this administrative review, Commerce

determined that “Egypt, Algeria, and the Philippines (1) are

comparable to Romania in its level of economic development, and (2)

are significant producers of comparable merchandise” and therefore

would be acceptable surrogate countries. Preliminary Results, 69

Fed. Reg. at 54,113. From those countries, Commerce then chose

Egypt as its surrogate country for this investigation.11 Id. For

valuing limestone, however, Commerce calculated a surrogate value

using import data from the Philippines from 2001.

After the issuance of the Preliminary Results and prior to the

issuance of the Final Results, Mittal argued that Commerce’s

selection of Filipino import data was not appropriate because the

data was aberrational. Mittal argued that Commerce should instead

use Mittal’s own 2003 purchase price, from the latter half of the

Period of Review, during which Commerce classified Romania as a

market economy country, as a surrogate value for limestone.

In the Issues and Decision Mem., Commerce declined to change

10
All references to the Code of Federal Regulations are to
the 2006 edition.
11
No party challenges this choice.
Ct. No. 05-00311 Page 23

its surrogate value for limestone,12 stating that it could not use

Mittal’s own information, as that information was proprietary and

therefore did not meet the criteria that Commerce has established

for selecting surrogate values. Issues and Decision Mem. at 26

(cmt 11). Commerce further stated, with respect to aberrational

data, that it

examined, where applicable, 2002 data from the countries
on the surrogate country list and [Commerce was] unable
to find data that was not aberrational. [Commerce]
repeated this process for 2001 data and [Commerce] found
the 2001 Philippines limestone data to be non-
aberrational.

Issues and Decision Mem., at 24 (cmt 11).

Before the court, Mittal again challenges the selection of

the Filipino import data stating that the selection of this

surrogate value contravenes the statutory directive that Commerce

is 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

[Commerce].’” Pl.’s Br. 24 (citing 19 U.S.C.

§ 1677b(c)(1)(B)(2000)). Mittal avers that there is other non-

aberrational data on the record that satisfies the statutory

objective of being the “best available information.” Mittal also

12
Commerce selected 2001 Filipino import data that valued
limestone at $0.07/kg. Factors Valuation Mem. at 4. With
adjustments for inflation and converted to Metric Tons (“MT”),
this is equivalent to an adjusted price per MT of $77.45. Id.
Ct. No. 05-00311 Page 24

claims that the choice of Filipino data is not supported by

substantial evidence due to the fact that the Filipino data

selected is aberrational.

Mittal supports its assertion that the Filipino limestone data

is aberrational by pointing to (1) the fact that the data selected

is based on very low import volumes (contrary to Commerce’s

preferred practice),13,14 and (2) the data selected is ten times

13
Specifically, Plaintiff points to the fact that the 2001
data from the Philippines was based on import data with a value
of $6000. Letter from Coudert Brothers LLP to the U.S.
Department of Commerce, Case No. A-485-803 Re: Certain Cut-to-
Length Steel Plate from Romania (October 18, 2004), Prop. Doc.
No. 735, Pl.’s App. 12 at 54 (“Pl.’s Case Br.”) (citing Factors
Valuation Mem. at 4)). Additionally, Plaintiff claims that this
import data was based on imports from the United States. Id.
14
Plaintiff cites to several of Commerce’s previous
investigations of other products, where Commerce rejected
surrogate data which are based on low levels of imports. In
particular, Plaintiff references Steel Concrete Reinforcing Bars
from Belarus 66 Fed. Reg. 33,528 (Dep’t Commerce June 22,
2001)(final determination)(Issues and Decision Memorandum at 4
(cmt. 1) available at
http://ia.ita.doc.gov/frn/summary/belarus/01-15743-1.txt
(rejecting a surrogate value, Commerce states that it “[does] not
believe that a value that differs significantly from both the
Thai and U.S. values for the same input and is based on import
data primarily from one country, and in relatively low
quantities, is a representative or reliable value to use as a
surrogate value in [Commerce’s] calculations”); Silicon Metal
from the Russian Federation, 68 Fed. Reg. 6885 (Dep’t Commerce
Feb. 11, 2003) (final determination) (Issues and Decision
Memorandum at 20 (cmt. 5)) available at
http://ia.ita.doc.gov/frn/summary/russia/03-3408-1.pdf (excluding
low volume imports when the per unit values were substantially
different than the per unit values of the larger quantities of
the import on the record). See Pl.’s Case Brief, Prop. Doc. No.
735, Pl.’s App. 12 at 54.
Ct. No. 05-00311 Page 25

higher than the benchmark data provided on the record. Pl.’s Br.

25.

The chart below demonstrates the range of prices for limestone

that Plaintiff has placed on the record for the POR:

Limestone Import Prices in dollars per kg
(for POR unless otherwise noted)
Commerce’s U.S. E.U. data El Polish Albanian Peak actual
selection Data15 Salvador data data price (half
(2001) data of POR)

0.07 0.006 <0.015 0.054 0.007 0.02 [ ]16

Pl.’s Br. 26; see also Pl.’s Case Br., Prop. Doc. No. 735, Pl.’s

App. 12 at 55-56; Letter from the Coudert Brothers LLP to the U.S.

Department of Commerce, Case No. A-485-803 (October 8, 2004), Prop.

Doc. No. 733, Pl.’s App. 14 at Ex. 4.17

Mittal also notes that Commerce’s choice of data from the

15
In its Brief before the court, and in its case brief
before Commerce, Plaintiff listed the U.S. import price for
limestone data as $0.006/MT. Pl.’s Br. 26; Pl.’s Case Br., Prop.
Doc. No. 735, Pl.’s App. 12 at 55. A further examination of the
record, however, reveals that the correct unit of measurement is
$0.006/kg. Letter from Coudert Brothers LLP to the U.S.
Department of Commerce, Case No. A-485-803 Re: Certain Cut-to-
Length Steel Plate from Romania (August 3, 2004) Pl.’s App. 18 at
Ex.3.
16
This is Plaintiff’s proprietary data. It is
substantially less than Commerce’s selection.
17
Plaintiff hypothesizes that the high value of the Filipino
import data is based on the low volume of that data, the fact
that the imports came from the United States, and the fact that
the category used to select the imports was a basket category of
goods, and therefore was not specific enough to obtain the
particular limestone input utilized by Mittal. Pl.’s Br. 27-28.
Ct. No. 05-00311 Page 26

Philippines is contrary to case law directing that Commerce “be

consistent in applying benchmark variations to determine which

values are aberrational.” Pl.s’ Br. 28 (citing Hebei Metals &

Minerals Imp. & Exp. Corp. v. United States, 29 CIT __ , __, Slip

Op. 04-88 at 21-22 (July 19, 2004). More specifically, Mittal

notes that, in the instant administrative review before the court,

Commerce itself declined to use Algerian data that was based on

imports worth $7,720, and having a value ten times other surrogate

data on the record for the same input. Pl.’s Br. 28; see Issues

and Decision Mem. at 14-15 (cmt. 6).

In response to Mittal’s challenges to the Filipino data

selected, Commerce explained that its procedures led to the

selection of Egypt as Commerce’s primary surrogate country, and

therefore as its primary choice for surrogate data. When data from

Egypt was unavailable or unusable, Commerce sought data from other

economically comparable countries that were also significant

producers of comparable merchandise--here the Philippines and

Algeria–-in its search for appropriate surrogate value information.

Commerce claims that it chose the Filipino data because

the 2002 data from the WTA [World Trade Atlas] were
aberrational or non-existent for Egypt, the
Philippines, and Algeria, as were the 2001 data from
Egypt and Algeria. Commerce found that these import
prices were unreasonably high priced, except for the
2001 Filipino data.

Def.’s Br. 18 (citing Factors Valuation Mem., Prop. Doc. No. 698,
Ct. No. 05-00311 Page 27

Pl.’s App. 3 at 4).

While, Commerce “agree[s] that ‘aberrational’ surrogate input

values should be disregarded”18 and that its practice is “to

disregard small-quantity import data when the per-unit value is

substantially different from the per-unit values of the larger

quantity imports of that product from other countries,”19 Commerce

argues that it adjusted the Filipino import data to account for any

aberrations. Def.’s Br. 20. Of all the available limestone data

from all the surrogate countries, Commerce argues that the Filipino

import data was the most reasonable choice, warts and all, within

the universe of choices.

The court remands this issue to Commerce for further

explanation in light of the data placed on the record that

demonstrates that the limestone value that Commerce selected was

much higher than the value of limestone imported in other countries

and applied to a small volume of imports. See Shakeproof Assembly,

23 CIT at 485, 59 F. Supp. 2d at 1359-60; see also Shanghai Foreign

Trade Enters. v. United States, 28 CIT __, __ , 318 F. Supp 2d

18
Def.’s Br. 19 (quoting Antidumping Duties; Countervailing
Duties, 62 Fed. Reg. 27296, 27366 (Dep’t Commerce May 19,
1997)(final rule).
19
Def.’s Br. 19 (quoting Heavy Forged Hand Tools from the
People’s Republic of China, 62 Fed. Reg. 11,813 (Dep’t Commerce
March 13, 1997)(final results); citing Shakeproof Assembly
Components Div. of Illinois Tool Works, Inc. v. United States, 23
CIT 479,485, 59 F. Supp. 2d 1354, 1360 (1999).
Ct. No. 05-00311 Page 28

1339, 1353 (2004) Hebei Metals & Minerals, 28 CIT at __, Slip Op.

04-88 at 21-22.

In the cases cited above, Commerce excluded import statistics

where the import value was aberrational and the import values low,

and when alternative import statistics included imports from

several countries. In this administrative review, as noted above,

Commerce excluded data from Algeria based on this principle. Pl.’s

Br. 29; Issues and Decision Mem. at 14-15 (cmt 6).20

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. See Dorbest, 30 CIT at __,

462 F. Supp. 2d at 1287-88. 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. As such, Commerce’s decision skips over Mittal’s claim

that the Filipino data is outside Commerce’s own standard of

acceptability, and thus avoids an important aspect of the problem

20
Even in using the Filipino data, Commerce made
adjustments, eliminating data from Spain, because Commerce found
that data to be aberrational. Factor Valuation Memo., Prop. Doc.
No. 698, Pl.’s App. 3 at 4.
Ct. No. 05-00311 Page 29

presented. Motor Vehicle Mfrs. Assn. v. State Farm Mut., 463 U.S.

29, 43 (1983) (agency action is arbitrary and capricious where it

fails to consider an important aspect of the problem).

Commerce effectively claims that it chose the Filipino import

data due to a process of elimination. While Commerce argues that

this is its best choice within its universe of choices, Commerce

has not explained, why, given the benchmark data (which is

plentiful and remarkably consistent), it found the 2001 Filipino

import data to be reliable and non-aberrational. If the Filipino

data which meets Commerce’s surrogate criteria nonetheless proves

to be unusable, or demonstrably aberrational, Commerce should

examine data sources that it has outside of those from the

surrogate countries. Cf. Dorbest, 30 CIT at __, 462 F. Supp 2d at

1280-81 (noting that Commerce’s desire for contemporaneity might be

trumped if data that is non-contemporaneous is otherwise accurate).

On this record, Mittal has provided several options for

surrogate values for limestone. Commerce has rejected the U.S. and

the EU data because Commerce’s practice is “‘to only resort to data

from countries not on the surrogate country list’ such as the

United States and the European Union, where Commerce ‘cannot

identify surrogate value data from any country on the surrogate

country list that is a significant producer of comparable

merchandise.’” Def.’s Br. 20 (quoting the Issues and Decision Mem.,

26 (cmt. 11)). While Commerce has every right to prefer data from
Ct. No. 05-00311 Page 30

economically comparable countries, Commerce cannot meet its

statutory objective to use the best available information, or to

obtain the most accurate margin possible, by relying on

aberrational data for the sole reason that it comes from a country

that is on the surrogate country list. See Globe Metallurgical,

Inc. v. United States, 28 CIT __, 350 F. Supp. 2d 1148, 1160

(2004)(“Commerce will disregard values from the primary surrogate

country when it finds those values to be (1) unavailable; (2) not

sufficiently contemporaneous; (3) of poor quality, or (4) otherwise

unreliable, i.e., aberrational.” (internal citation omitted)). As

Commerce itself recognizes, it does not use surrogate country data

that is aberrational. Id.; Antidumping Duties; Countervailing

Duties, 62 Fed. Reg. at 27366; Shakeproof Assembly, 23 CIT at 485,

59 F. Supp. 2d at 1359-60.

In addition, Commerce’s analysis of its alternatives is

incomplete. Commerce declined to use Mittal’s own data on the

basis that this data consists of proprietary information. Def.’s

Br. 21; Issues and Decision Mem., at 26 (cmt. 11). But the

argument against using proprietary information does not apply when

it is the respondent’s own information that is at issue. Commerce

is using the respondent’s proprietary information throughout its

investigation or review, when relying on the respondent’s reporting

of factors of production. Indeed, Commerce’s own regulations

provide for the usage of respondent’s own information in a non-
Ct. No. 05-00311 Page 31

market economy situation, when a factor is purchased from a market-

economy supplier. 19 C.F.R. § 351.408(c)(1).21 Accordingly,

Commerce should reconsider this rationale.

Commerce also claims that it cannot use the Mittal data

because that data is outside the period of review. However, the

Filipino data is also outside the period of review, though

adjusted. Consequently, Commerce appears to apply its standards

in an arbitrary fashion. See Shanghai Foreign Trade Enters., 28

CIT at __, 318 F. Supp. 2d at 1352 (Commerce's determination was

not supported by substantial evidence when "Commerce summarily

discarded the alternatives as flawed but did not evaluate the

reliability of its own choice."). The fact that Commerce was

willing to rely on Filipino data that were outside the period of

review indicates that data from outside the period of review is not

automatically disqualified.

Finally, Commerce relies on its preference for “country-wide,

publicly available data.” Def.’s Br. 21-22. Invoking this

21
Commerce’s regulation reads:

(1)Information used to value factors.
The Secretary normally will use publicly available
information to value factors. However, where a factor
is purchased from a market economy supplier and paid
for in a market economy currency, the Secretary
normally will use the price paid to the market economy
supplier. . . .

19 C.F.R. § 351.408(c)(1).
Ct. No. 05-00311 Page 32

general policy preference, however, does not appear to be logical

here. It is of course reasonable that Commerce establish

conditions and criteria in order to help ensure that it has

accurate and reliable data. It confounds the issue, however, if

Commerce rejects a company’s own actual price paid, during a period

when that country is considered part of a market economy country,

on the basis that the price is non-representative of the entire

country.

Commerce’s task is to duplicate, to the best of its ability,

the prices a company would pay for its inputs were that company

functioning in a market economy country. 19 U.S.C. § 1677b(c).

When Commerce accepts the value of the subject merchandise as the

normal value in a market economy country,22 it implicitly accepts

the price paid for the inputs as accurate and the true price paid

by the respondent. It therefore appears irrational to accept that

these values are the true prices paid by a company on the one hand,

and then to simultaneously reject them because they are not

publicly available information that is country-wide. Therefore,

22
See Preliminary Results, 69 Fed. Reg. at 54,115 (after
determining that the amount of sales in Romania were sufficient
to base the value on Romanian sales, Commerce “based the
determination of [Normal Value] upon the [Home Market] sales of
the foreign like product. Thus, [Commerce] used as [Normal
Value] the prices at which the foreign like product was first
sold for consumption in Romania, in the usual commercial
quantities, in the ordinary course of trade, and, to the extent
possible, at the same level of trade (LOT) as the [Export Price]
or [Constructed Export Price] sales, as appropriate . . . .”).
Ct. No. 05-00311 Page 33

this issue is remanded. On remand, Commerce shall reconsider its

position in light of the benchmark data on the record.

3. Commerce’s Rejection of Ispat Annaba Financial Statements to
determine SG&A ratios

When Commerce is constructing the normal value for a

respondent in a non-market economy country, Commerce must also take

into account those costs that are not covered by the factors of

production (the physical inputs and the wages of the workers

directly involved in the manufacturing process). “Because firms

have ‘general expenses and profits’ not traceable to a specific

product, in order to capture these expenses and profits, Commerce

must factor (1) factory overhead (‘overhead’), (2) selling, general

and administrative expenses (‘SG&A’), and (3) profit into the

calculation of normal value.” Dorbest, 30 CIT at __, 462 F. Supp.

2d at 1300; see 19 U.S.C. § 1677b(c)(1). In order to capture these

costs, Commerce relies upon financial statements from one or more

companies based in the primary surrogate country (or other

surrogate countries if need be) to create financial ratios that

Commerce then applies to its factors for production data in order

to recreate the full expenses of the respondent. Dorbest, 30 CIT at

__, 462 F. Supp. 2d at 1300-1.

In the Preliminary Results, Commerce selected Egyptian Iron

and Steel (“EIS”) as its surrogate producer. After the publication
Ct. No. 05-00311 Page 34

of the Preliminary Results, Mittal challenged Commerce’s choice of

the financial statements from Egyptian Iron and Steel (“EIS”) to

calculate the SG&A ratios, and argued that instead Commerce should

use the financial statement for an Algerian company (a Mittal Steel

affiliate), Ispat Annaba. Mittal argued that Ispat Annaba’s

financial statement met Commerce’s own criteria for a surrogate

producer because it is “reliable, contemporaneous with the POR,

contains a detailed break-out of expense categories, earned a

profit, and operates under common management principles.” Issues

and Decision Mem., at 17 (cmt. 10).

Mittal also identified a range of problems with EIS’s data,

and stated that if Commerce chose to continue to use Egyptian

surrogate data, the agency should use data from another Egyptian

company, Alexandria National Iron and Steel (“AIS”). Id. at 20

(cmt. 10). Additionally, Commerce had initially supplemented EIS’s

financial statements with those from three different sources.

Mittal claimed that if Commerce insisted on supplementing the data

from EIS or AIS with those of companies from non-surrogate

countries, they should use manufacturers based in Indonesia, and

suggested the financial statement of PT Jaya Pari Steel Tbk (“Jaya

Pari”). Id. at 22 (cmt. 10).

Commerce selected the financial statement from AIS, but also

supplemented AIS’ data with those of Jaya Pari, in order to

calculate non-depreciation overhead. Issues and Decision Mem.,
Ct. No. 05-00311 Page 35

at 22-24 (cmt. 10). Commerce declined to used the financial

statement from Ispat Annaba stating that:

[b]ecause [Mittal] is affiliated with Ispat Annaba, the
Department determines that there is a potential conflict
in that Ispat Annaba’s financial statement is more likely
to be manipulated and is therefore less preferable than
non-affiliated companies’ financial statements. In
contrast, while AIS is not an integrated steel producer,
like [Mittal] (or Ispat Annaba), it is not affiliated
with [Mittal] and is an Egyptian producer of comparable
merchandise.

Id. at 23 (internal citations omitted).

Mittal challenges Commerce’s rejection of the financial

statements from Ispat Annaba, claiming that Commerce’s decision was

not supported by any data on the record, that affiliation is not a

statutory test to qualify or disqualify producers, and finally,

that the financial data from Ispat Annaba represents the best

surrogate value data on record. Pl.’s Br. 30.

To support its claim that there is insufficient evidence on

the record of data manipulation, Mittal cites case law indicating

that Commerce’s data choice must be based on record evidence and

not on speculation. See Anshan Iron & Steel Co. v. United States,

28 CIT __, __ , 358 F. Supp.2d 1236, 1241 n.2 (2004)(quoting

Asociacion Colombiana de Exportadores de Flores v. United States,

13 CIT 13, 15, 704 F. Supp. 1114, 1117, (1989)(“Speculation is not

support for a finding. . . .”)).

Mittal also points to instances in which affiliated companies

were used to determine surrogate financial ratios in an antidumping
Ct. No. 05-00311 Page 36

investigation or administrative review involving an NME. See

Certain Ball Bearings and Parts Thereof From the People’s Republic

of China, 68 Fed. Reg. 10,685 (Dep’t Commerce Mar. 6, 2003) (final

determination) (Issues and Decision Mem. at 18-22 (cmt. 1H)

available at http://ia.ita.doc.gov/frn/summary/prc/03-5300-1.pdf.23

Finally, Mittal argues that the data from Ispat Annaba is the

best available as it is from one of the countries from Commerce’s

surrogate country list (Algeria), contemporaneous with the POR,

audited, publicly available, and from producers that manufacture

similar merchandise. While these characteristics also describe

AIS, Mittal argues that Ispat Annaba is the superior data source

because the financial statements from Ispat Annaba provide a break-

out of non-depreciation overhead items, and Ispat Annaba is at the

same level of integration as Mittal (whereas AIS is not). Mittal

notes that in previous investigations or reviews, Commerce has

viewed the level of integration to be a relevant factor for

consideration because “an integrated producer will likely have

greater overhead (particularly depreciation expense) because of its

more expensive equipment. . . .” Pl.s’ Br. 35, (quoting Ball

23
In the cited case, the financial statements were prepared
after the petition was filed, and respondents chose which
financial statements to place on the record. Commerce used the
data because there was no evidence of “any accounting
irregularities or improper adjustments.” Certain Ball Bearings
and Parts Thereof From the People’s Republic of China, 68 Fed.
Reg. 10,685(Issues and Decision Mem. at 18-22)(cmt.1H)).
Ct. No. 05-00311 Page 37

Bearings and Parts Thereof From the People’s Republic of China, 68

Fed. Reg. 10,685(Issues and Decision Mem. at 15 (cmt. 1F)).24

Commerce admits that AIS is not a fully integrated steel

producer. Def.’s Br. 24. See also Issues and Decision Mem. at 23

(Cmt. 10). It also notes that it had to supplement AIS’

information with a non-depreciation overhead financial ratio taken

from Jaya Pari’s financial statement. Def.’s Br. 23. Commerce

states, however, that the information from Ispat Annaba also had to

be supplemented.

Commerce notes that, in this administrative review, the agency

was faced with a choice between a manufacturer that was not fully

integrated,25 and one that was fully integrated but affiliated.

24
Defendant-Intervenor points out that following the logic
of Plaintiff’s argument here would lead to an implication “that
the AIS statements understate manufacturing overhead because AIS
is less integrated than [Mittal].” Def.-Intervenor’s Br. at 27
(emphasis in the original). Therefore, “it does not logically
follow that Commerce overstated factory overhead by selecting
AIS’s financial data over that of Ispat Annaba.” Id.
25
Defendant-Intervenor notes that while AIS is not a fully-
integrated producer, it does “engage[] in substantial
manufacturing processes involved in producing the subject steel
plate.” Def.-Intervenor’s Br. 26. Commerce noted in its Issues
and Decision Mem. that:

AIS has a direct reduction plant for producing direct
reduced iron and produces steel in electric arc
furnaces. See Iron and Steel Works of the World, 15th
edition(2002). However, AIS is not an integrated steel
producer because it does not produce pig iron in a
blast furnace or steel in a basic oxygen furnace.

(continued...)
Ct. No. 05-00311 Page 38

Commerce has previously stated its preference for information that

is not provided by affiliates of interested parties in the

proceeding. Def.’s Br. 25; see Certain Cased Pencils from the

People’s Republic of China, 67 Fed. Reg. 48,612 (Dep’t Commerce

July 25, 2002)(final results and partial rescission)(Issues and

Decision Mem. at 13 (cmt. 4)) available at

http://ia.ita.doc.gov/frn/summary/prc/02-18856-1.pdf; see also

Kaiyuan Group Corp. v. United States, 28 CIT __, __, 343 F. Supp.

2d 1289, 1314 (2004)(affirming Commerce’s determination not to

utilize surrogate values placed on the record by a party

affiliate).

Regarding Mittal’s claim that there was no evidence of

accounting irregularities in the Ispat Annaba data, and that

Commerce has accepted affiliate data in the past,26 Commerce notes

25
(...continued)
Issues and Decision Mem. at 23 (cmt. 10).
26
Defendant-Intervenor also notes that in the case
referenced by Mittal as standing for the proposition that
affiliate data can be used to determine surrogate values, Ball
Bearings, “Commerce was able to corroborate the financial
statements from affiliated parties with financial statements from
unaffiliated parties.” Def.-Intervenor’s Brief 24 (citing
Certain Hot-Rolled Carbon Steel Flat Products from Romania, 70
Fed. Reg. 34,448 (Dep’t Commerce June 14, 2005)(final
determination) (Issues and Decision Mem. at 38-39 (cmt. 7))
available at
http://ia.ita.doc.gov/frn/summary/romania/E5-3067-1.pdf.
Therefore, the data in that case was not solely from affiliated
companies, nor was additional break-out data needed; accordingly,
the case is not analogous to the case here.
Ct. No. 05-00311 Page 39

that the financial statements provided by Ispat Annaba did not

include a cost break-out. In order for the financial statements to

be of use in this investigation, Mittal obtained cost break-out

information from Ispat Annaba’s accountant, and did so solely for

use in this administrative review. Def.’s Br. 25-26; Letter from

the Coudert Brothers LLP to the U.S. Department of Commerce, Case

No. A-485-803 (May 17, 2004), Pub. Doc. No. 128, Def.’s App. Tab 10

at 5-6. Commerce viewed this extra information, obtained solely

for this proceeding and apparently not prepared in the ordinary

course of business, to qualify as an “accounting irregularity.”

Therefore, Commerce maintains, it was reasonable to choose the

non-fully-integrated producer over the data provided by Mittal’s

affiliate.

The Court affirms Commerce’s decision not to use Ispat

Annaba’s financial statements in calculating surrogate financial

ratios. Commerce had a choice between two imperfect financial

statements. It was within the agency’s statutory authority to

choose to use non-affiliated data when some of the information

provided was obtained specifically for this proceeding, and was

therefore produced in circumstances providing a significant

opportunity for data-manipulation.

While Mittal correctly argues that there is no statutory

requirement that the data come from non-affiliated companies, it

does not argue, nor can it, that Commerce does not have the
Ct. No. 05-00311 Page 40

discretion to determine that it does not want to use affiliated

data when such data has “accounting irregularities.”

Mittal argues that Commerce here is engaged in mere

speculation, and as such, Commerce’s determination cannot be deemed

to be supported by substantial evidence. In this case, however,

Commerce has more than a mere conjecture. Ispat Annaba’s financial

statements were not complete; in order for them to be completed,

additional information had to be specifically compiled, outside of

the ordinary course of business, and Commerce could not ascertain

that from where the data was derived. Moreover, Commerce did have

an alternate source of data which it deemed more reliable under the

circumstances.

Where Commerce is confronted with two alternatives(both of

which have their good and bad qualities), and Commerce has a

preferred alternative, the court will not second-guess Commerce’s

choice. See Luoyang Bearing Factory v. United States, 27 CIT 1638,

1644, 288 F. Supp. 2d 1369, 1375 (2003); Dorbest, 30 CIT at __, 462

F. Supp. 2d 1289-90; see also Goldlink Indus. Co. v. United

States, 30 CIT __, __, 431 F. Supp. 2d 1323, 1327 (2006)(“The

Court's role in the case at bar is not to evaluate whether the

information Commerce used was the best available, but rather

whether a reasonable mind could conclude that Commerce chose the

best available information.”) (citation omitted). Here, a

reasonable mind could conclude that Commerce chose the best
Ct. No. 05-00311 Page 41

available information in selecting between the two choices in front

of it. As such, Commerce’s decision was supported by substantial

evidence.

4. Commerce’s Adoption and Application of a 15 Day Liquidation
Instruction Policy

Commerce completes its administrative review of antidumping

duty orders by publishing its final results in the Federal

Register. These results include notice that liquidation

instructions will be issued to Customs within 15 days of

publication (Commerce’s “15 Day Policy”). Commerce’s 15 Day Policy

states:

The Department of Commerce announces that, effective
immediately, it intends to issue liquidation instructions
pursuant to administrative reviews conducted under
section 751 of the Tariff Act of 1930, as amended, [19
U.S.C. § 1675] to the U.S. Customs Service within 15 days
of publication of the final results of review in the
Federal Register or any amendments thereto. This
announcement applies to reviews conducted under sections
751(a)(1) and (2) of the Tariff Act.

Int’l Trade Comm’n, Dep’t of Commerce, Announcement Concerning

Issuance of Liquidation Instructions Reflecting Results of

Administrative Reviews (August 9, 2002), available at

http://ia.ita.doc.gov/download/liquidation-announcement.html.

The relevant provisions in 19 U.S.C. § 1675 require, at

subparagraph (a)(3)(C), that the “administering authority,” in this

case Commerce, “issue [liquidation] instructions to the Customs
Ct. No. 05-00311 Page 42

Service. . . ,” and, at (a)(3)(B), that “any liquidation...pursuant

to a review...shall be made promptly and, to the greatest extent

practicable, within 90 days after the instructions to Customs are

issued.” 19 U.S.C. § 1675(a)(3)(B)&(C). The statutory provisions

do not explicitly indicate how or when the liquidation instructions

should be transmitted from Commerce to Customs; accordingly, there

is a statutory gap that the agency must fill. See Mittal Steel

Galati S.A. v. United States, 31 CIT __, Slip Op. 2007-73 at 14

(May 14, 2007).

At the same time, the statute provides that in order to appeal

from an administrative review to the United States Court of

International Trade, a party has thirty days to file “a summons,

and within thirty days thereafter a complaint.” 19 U.S.C.

§ 1516a(a)(2)(A)(ii). Rule 56.2 of the United States Court of

International Trade allows another thirty days after the service of

the complaint during which the party may file a motion for a

preliminary injunction to enjoin liquidation of the subject entries

during the process of judicial review. USCIT R. 56.2.

In the matter in dispute here, Commerce notified the

Plaintiff, through publication in the Federal Register, that it

intended to issue liquidation instructions for Plaintiff’s entries

within 15 days after publication of the Final Results. Final

Results, 70 Fed. Reg. at 12,653. Thereafter, Commerce actually

issued the liquidation instructions 23 days after publication of
Ct. No. 05-00311 Page 43

the Final Results. Liquidation of some of Mittal’s subject entries

occurred 22 days after the instructions issued, or 45 days after

publication of the Final Results.

Mittal challenges Commerce’s 15 Day Policy, arguing that the

Policy undermines its right of judicial review, citing the 90-day

period initiated by 19 U.S.C. § 1516a(a)(2)(A)(i)(I). Mittal also

cites the court’s decision in Tianjin Machinery Import & Export

Corp. v. United States for the proposition that the 15 Day Policy

directly contravenes the statutory framework established in 19

U.S.C. § 1516a(a)(2)(A)(i)(I). Tianjin Mach. Imp. & Exp. Corp. v.

United States, 28 CIT __, 353 F. Supp. 2d 1294 (2004).

Effectively, Mittal claims that its option to appeal Commerce’s

decision should constrain Commerce’s choice of a time period for

issuing liquidation instructions to Customs. But see Mukand Int’l,

Ltd. v. United States, 30 CIT __, __, 452 F. Supp. 2d 1329, 1334-35

(2006)(finding that the 15 Day Policy was a reasonable and

acceptable means of statutory gap-filling); see also Mittal Steel

Galati, 31 CIT at __, Slip Op. 2007-73 at 14.

Mittal claims injury because liquidations are effectively

final. See United States v. Utex Int’l Inc., 857 F.2d 1408, 1409-

1410 (1988). Mittal notes that the injunction against liquidation

in this matter took effect after several entries had been

liquidated, and that those liquidations occurred while Mittal was

negotiating with counsel for the Defendant the terms of the
Ct. No. 05-00311 Page 44

injunction. Mittal argues that decisions of the Federal Circuit

indicate that a party should not suffer injury from premature

liquidations when it has exercised its rights in a timely manner.

See Mukand Int’l, Ltd. v. United States, No. 06-1259, 2007 WL

571026 (Fed. Cir. Feb. 6, 2007) (comparing the plaintiff’s untimely

actions with timely actions of the plaintiff in Shinyei); see also

Shinyei Corp. of Am. v. United States, 355 F. 3d 1297 (Fed. Cir.

2004).

Commerce claims that it has a statutory obligation to order

liquidation instructions unless enjoined from doing so. 19 U.S.C.

§ 1675(a)(3)(B)-(C); 19 U.S.C. § 1516a(c)(1). While the statute

does not specify a time frame for liquidation itself, unless

enjoined, entries subject to an antidumping duty administrative

review that remain unliquidated on the six-month anniversary of the

Federal Register publication date are deemed liquidated at the rate

asserted at the time of entry. Int’l Trading Co. v. United States,

412 F. 3d 1303, 1313 (Fed. Cir. 2005). Accordingly, Commerce

developed the 15 Day Policy to facilitate timely liquidations.

Commerce also argues that the affected parties bear the burden

of enjoining liquidation, citing Agro Dutch Indus. Ltd. v. United

States, 29 CIT __, 358 F. Supp. 2d 1293, 1295-96 (2005).27

27
Subsequent to the publication in Agro Dutch, the case was
dismissed for lack of jurisdiction due to the absence of
unliquidated entries, and a motion for reconsideration was
(continued...)
Ct. No. 05-00311 Page 45

Faced with these competing claims, the court must begin its

analysis by determining the degree of deference due to Commerce’s

statutory interpretation. Timken Co. v. United States, 26 CIT

1072, 1081, 240 F. Supp. 2d 1228, 1239 (2002)(“In the case of

statutory interpretations by agencies . . . judicial review must

take place within the confines of either Chevron or Skidmore

deference.”) Chevron deference should be accorded to agency

actions when the statute has failed to speak on an issue and the

agency advances an interpretation through formal channels.

Chevron, 467 U.S. at 842-45.

As noted above, however, in the matter at issue here, Commerce

did not issue its 15 Day Policy through formal notice-and-comment

rulemaking procedures. Nor did it do so in the course of the

administrative review or after formal briefing and deliberations.

Cf. Mittal Steel Galati, 31 CIT at __, Slip Op. 2007-73 at 11 (“In

this case though, Plaintiff challenged Commerce’s liquidation

instruction policy during the administrative review, and Commerce

squarely addressed Plaintiff’s claim in the Decision Memorandum.”).

27
(...continued)
denied. Agro Dutch Indus. Ltd. v. United States, 29 CIT __, Slip
Op. 05-28 (Feb. 28, 2005). That judgment was reversed and
remanded by the Federal Circuit in an unpublished decision. Agro
Dutch Indus. Ltd. v. United States, 167 Fed. Appx. 202 (2006).
The Federal Circuit did not address the holding in the initial
Agro Dutch case, that plaintiffs are burdened with enjoining
liquidation, and that 19 U.S.C. § 1516a(a)(2)(A)(i)(I) does not
establish a minimum liquidation period.
Ct. No. 05-00311 Page 46

Instead, Commerce posted the 15 Day Policy on its website and

restated the 15 Day Policy in final decisions published in the

Federal Register. In the months and years preceding the

announcement of the 15 Day Policy, there was no announcement in the

Federal Register stating that this policy was under consideration,

or providing for the opportunity for comment. These informal means

of establishing policy, albeit in interpreting statutory ambiguity,

do not warrant Chevron deference. Cf. United States v. Mead Corp.,

533 U.S. 218, 234 (2001) (describing the informalities of the

administrative procedure used in issuing Customs classification

rulings such that these rulings are “best treated like

interpretations contained in policy statements, agency manuals, and

enforcement guidelines, . . . beyond the Chevron pale.”)(internal

quotations omitted); U.S. Steel Group v. United States, 25 CIT

1046, 1051, 162 F. Supp. 2d 676, 682 (2001). Accordingly, the

agency’s interpretations are “entitled to respect . . . but only to

the extent that those interpretations have the power to persuade.”

Christensen v. Harris County, 529 U.S. at 587 (citations omitted).

In order to assess whether Commerce’s policy is a persuasive

interpretation of the statute, the relevant statutory framework

must be defined. The 15 Day Policy could be a reasonable and

persuasive means of closing the statutory gap in 19 U.S.C.

§ 1675(a)(3)(B)-(C) if the policy is in accordance with the
Ct. No. 05-00311 Page 47

statute, consistent with legislative intent, has been properly

announced, and is based on the agency’s particular expertise. See

Mead, 533 U.S. at 228 (“The fair measure of deference to an agency

administering its own statute has been understood to vary with

circumstances, and courts have looked to the degree of the agency's

care, its consistency, formality, and relative expertness, and to

the persuasiveness of the agency's position . . . .”).

While Mittal argues that the relevant statutory framework for

the 15 Day Policy includes both 19 U.S.C. § 1675(a)(3) and 19

U.S.C. § 1516a(2)(A), the court in Mukand, as noted above, found

the 15 Day Policy to be a reasonable and acceptable means of

statutory gap-filling by Commerce. Mukand, 30 CIT at __, 452 F.

Supp. 2d at 1333-34; see also Mittal Steel Galati, 31 CIT __, Slip

Op. 2007-73 at 14. In Mukand, the court explained that 19 U.S.C.

§ 1675(a)(3) creates obligations for Commerce and Customs regarding

the liquidation of entries that inform the analysis of Commerce’s

15 Day Policy. Mukand, 30 CIT at __ , 452 F. Supp. 2d at 1334.

This court agrees with the statutory analysis in Mukand and

Mittal. The scope of 19 U.S.C. § 1516a covers the actions of

interested parties, and of the courts reviewing Commerce’s

completed antidumping administrative reviews. Thus, 19 U.S.C.

§ 1516a(2)(A) does not prohibit Commerce’s action, and Commerce

may, but is not required to heed 19 U.S.C. § 1516a in interpreting

19 U.S.C. § 1675(a)(3). Therefore, the relevant statutory
Ct. No. 05-00311 Page 48

framework for analyzing the 15 Day Policy is 19 U.S.C.

§ 1675(a)(3). See Turtle Island Restoration Network v. Evans, 284

F. 3d 1282, 1292 (Fed. Cir. 2002)(declining to invoke the doctrine

of in pari materia in statutory interpretation).

Moreover, Customs cannot liquidate promptly if Commerce does

not issue the instructions in a timely manner. While it is on the

outer boundary of reasonableness, the 15 Day Policy encourages

prompt liquidation and is therefore consistent with the statutory

intent.

Additionally, the intent behind the antidumping statutory

framework was to create a more transparent antidumping review

procedure and to further the protection of parties’ rights through

heightened due process. H.R. Rep. No. 103-826(I), at 13 (1994), as

reprinted in 1994 U.S.C.C.A.N. 3773, 3785. The 15 Day Policy

increases transparency by informing affected parties of Commerce’s

anticipated timetable for transmitting liquidation instructions to

Customs. Commerce also aids due process through the 15 Day Policy

by encouraging affected parties to exercise their rights of

judicial review in a timely manner. See 19 U.S.C. § 1516a(2)(A).

Thus, the 15 Day Policy advances this legislative intent.

Commerce also announced the 15 Day Policy properly and has

consistently provided appropriate notice of its intended

application. Commerce has regularly restated the 15 Day Policy in

either the “Assessment” or “Final Results” published in the Federal
Ct. No. 05-00311 Page 49

Register. In the matter at issue here, Commerce gave Plaintiff

explicit notice of its intent to apply the policy. Final Results,

70 Fed. Reg. at 12,653. Moreover, Commerce’s 15 Day Policy had

been in place for over two years at the time that Commerce

announced that the 15 Day Policy would be applied to Plaintiff in

this case. As such, for purposes of addressing Plaintiff’s facial

challenge, it does not offend notions of administrative fairness

that Plaintiff’s goods were liquidated prior to the combined 60-day

time period for commencement of an action provided by section

1516a, and prior to the issuance of a preliminary injunction. Cf.

Mukand, 30 CIT at __, 452 F. Supp. 2d at 1333(finding that, as the

actual liquidation took place 75 days after the publication of the

results, plaintiffs were not harmed in their ability to protect

their interests).

Plaintiff claims that it was harmed, in this instance, because

it was in the midst of negotiating a preliminary injunction with

Commerce when the liquidation instructions were issued. Assuming

that Plaintiff’s description is accurate, Commerce’s behavior is

hardly commendable; nonetheless, this fact does not affect the

court’s analysis of a facial challenge to the 15 Day Policy.

Mittal was aware of Commerce’s Policy and of Commerce’s intention

to apply it. Mittal had other means to protect its interests,

including applying for a Temporary Restraining Order, or applying

for an injunction immediately without Commerce’s consent. Cf.
Ct. No. 05-00311 Page 50

Mukand, Appeal Number 2006-1259 (writ of mandamus not granted when

parties failed to protect their own interest through pursuit of

injunctive relief).28

Finally, in adopting its 15 Day Policy, Commerce is acting in

an area in which it has substantial expertise. See Pesquera Mares

Australes Ltda. v. United States, 266 F. 3d 1372, 1379 (Fed. Cir.

2001) (“Antidumping investigations are complex and complicated

matters in which Commerce has particular expertise and thus

Commerce's determinations are entitled to deference.”)(internal

quotation omitted). While, as noted above, Commerce’s 15 Day

Policy was adopted informally, outside of the administrative review

at issue, and is therefore not accorded Chevron deference, its

action was within Commerce’s area of particular expertise and

statutory authority.

Accordingly, Commerce’s 15 Day Policy advances a reasonable

and – albeit not compellingly – persuasive interpretation of 19

U.S.C. § 1675(a)(3)(B)-(C). The 15 Day Policy fills the statutory

28
While Mittal argues for relief in the nature of an
injunction directing Commerce and Customs to reverse the
liquidation of Mittal’s entries, its filings are devoid of the
kind of presentation necessary for such relief. Cf. Canadian
Lumber Trade Alliance v. United States, 30 CIT __, 441 F. Supp.
2d 1259, 1263-64 (2006). Accordingly, the court need not decide
whether Commerce and Customs in this case acted “so quickly” by
liquidating the relevant entries as “to practically foreclose”
Mittal “from obtaining judicial review of subject entries
pursuant to 19 U.S.C. § 1516a.” Mittal Steel Galati, 30 CIT at
__, Slip Op. 07-73 at 14-15.
Ct. No. 05-00311 Page 51

gap in a manner consistent with the statute’s language and the

legislative intent. Commerce announced the policy adequately, and

based on its own, special expertise.

It is certainly true that a longer period – for issuance of

instructions and initiating liquidation by Customs – would be more

indicative of Commerce’s consideration of all the factors and

interests involved in the adoption of its 15 Day Policy. A 15 day

policy for the issuance of instructions, with, for example, an

instruction to Customs that no liquidation should occur for another

15 days, would be more persuasive and would be more likely to make

unnecessary the kind of Temporary Restraining Order practice that

Commerce’s chosen policy may engender. Nonetheless, the court

cannot conclude that Commerce’s policy is unworthy of Skidmore

deference. Accordingly, Mittal’s challenge fails and the court

will not order re-liquidation.
Ct. No. 05-00311 Page 52

Conclusion

For the foregoing reasons, the court affirms-in-part and

remands-in-part Commerce’s determinations, and denies Plaintiff’s

Motion for Judgment on the Agency Record. Remand results are due

by October 1, 2007. Comments are due by October 22, 2007. Reply

comments are due by November 1, 2007. SO ORDERED.

___ /s/
Donald C. Pogue, Judge

Dated: July 18, 2007
New York, New York