US Magnesium LLC v. United States

Slip Op. 15-47
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
US MAGNESIUM LLC, 	:
:
Plaintiff, 	:
:
v. 	:
:
UNITED STATES, 	: 	Before: Richard K. Eaton, Judge
:
Defendant, 	: 	Court No. 12-00006
:
and 	:
:
TIANJIN MAGNESIUM 	: 	PUBLIC VERSION
INTERNATIONAL CO., LTD., 	:
:
Defendant-Intervenor. 	:
____________________________________:
OPINION
[The Department of Commerce’s Final Results of Redetermination are sustained.]
Dated: May 21, 2015
Jeffery B. Denning, King & Spalding LLP, of Washington, D.C., argued for plaintiff.
With him on the brief was Stephen A. Jones.
Eric E. Laufgraben, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., argued for defendant. With him on the brief were
Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Melissa M. Brewer, Attorney-
International, Office of the Chief Counsel for Import Administration, U.S. Department of
Commerce, of Washington, D.C.
David A. Riggle, Riggle & Craven, of Chicago, IL, argued for defendant-intervenor.
With him on the brief was David J. Craven.
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EATON, Judge: Before the court are the final results of redetermination pursuant
to court remand, dated July 11, 2013, of the administrative review of the antidumping duty order
on pure magnesium from the People’s Republic of China (“PRC”) for the period of review May
1, 2009 through April 30, 2010 (“POR”). See Final Results of Redetermination Pursuant to Ct.
Remand at 3 (ECF Dkt. No. 86-1) (“Remand Results”); US Magnesium LLC v. United States, 37
CIT __, 895 F. Supp. 2d 1319 (2013) (Tsoucalas, J.) (“USM I”); see also Pure Magnesium From
the PRC, 76 Fed. Reg. 76,945 (Dep’t of Commerce Dec. 9, 2011) (final results of the 2009–2010
antidumping duty administrative review of the antidumping duty order), and accompanying
Issues and Decision Memorandum, PD 28 (Part 2), ECF Dkt. No. 25 (“Issues & Dec. Mem.”)
(collectively, the “Final Results”); Pure Magnesium From the PRC, the Russian Federation and
Ukraine, 60 Fed. Reg. 25,691 (Dep’t of Commerce May 12, 1995) (notice of antidumping duty
orders). For the reasons set forth below, the Department of Commerce’s (“Commerce” or the
“Department”) Remand Results are sustained.
BACKGROUND
Defendant-intervenor Tianjin Magnesium International Co., Ltd (“Tianjin”) is an
importer of pure magnesium supplied by its sole producer, Company A. 1 On January 18, 2012,
plaintiff US Magnesium LLC (“USM”), a domestic producer of pure magnesium, commenced
this action, challenging several determinations made by the Department in the Final Results.
Compl. (ECF Dkt. No. 9). The challenged determinations were made in the Final Results as part
of the Department’s factors of production (“FOP”) methodology for calculating normal value.
1 	[[ 	]] identity is being withheld
as business-proprietary information. All references to this company hereinafter will be to
“Company A.”
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First, Commerce characterized the retorts used in Company A’s manufacturing process as an
indirect material input and treated expenses associated with the retorts as part of factory
overhead. Issues & Dec. Mem. at 8. In making that finding, Commerce rejected, as untimely,
information submitted by USM (the “untimely submission”) that it claimed provided prima facie
evidence that Tianjin had submitted fraudulent information regarding whether Company A
rented retorts, rather than self-produced them. See Mem. from Eve Wang, Case Analyst, to The
File at 2, PD 11 (Part 2) (Sept. 20, 2011), ECF Dkt. No. 25 (“Submission Rejection Mem.”).
Second, Commerce selected the surrogate values used to calculate financial ratios, labor rates,
and truck freight based on (1) Hindalco Industry Limited’s (“Hindalco”) 2 2009–2010 audited
financial statements, (2) data from the 2007–2008 Indian Annual Survey of Industries 3 (“ASI”),
and (3) Infobanc 4 data, respectively. Issues & Dec. Mem. at 6, 11, 18.
The USM I Court (1) remanded the issue of USM’s untimely submission and instructed
the Department to consider whether it should be placed on the record, (2) deferred considering
the issue of whether the retorts were properly treated as an indirect material input and valued as
factory overhead, or whether the Department should have treated the retorts as a direct material
2 	Hindalco is a producer of aluminum and copper and part of the Aditya Birla
Group. See Letter from David A. Riggle, Riggle & Craven, to Gary Locke, Secretary of
Commerce at 844, 846, PD 30 (Part 1) (Dec. 7, 2010), ECF Dkt. No. 25.
3 	The Annual Survey of Industries is a public source of industrial statistics in India,
set up and conducted pursuant to statute. See Annual Survey of Industries (ASI), M INISTRY OF
S TATISTICS & P ROGRAMME IMPLEMENTATION, G OV ’ T OF INDIA ,
http://mospi.nic.in/mospi_new/upload/asi/ASI_main.htm?status=1&menu_id=88 (last visited
May 6, 2015).
4 	Infobanc (Infobanc.com) is a business-to-business website (or portal) that
provides customer and market research databases, a “network of international buyers,” and other
services to businesses. See Frequently Asked Questions, INFOBANC , http://help.infobanc.com
(last visited May 5, 2015).
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input, “in order to allow Commerce to revisit its [characterization]. . . in light of its decision
concerning USM’s untimely submission,” and (3) held that the Department’s selection of the
surrogate for truck freight was unclear and remanded for the Department to “explain its rationale
. . . or select a new surrogate for truck freight rates.” See USM I, 37 CIT at __, 895 F. Supp. 2d
at 1326, 1327, 1330 (citation omitted). The USM I Court also granted the Department’s request
for a voluntary remand regarding the surrogate values for financial ratios and labor rates. See id.
at __, 895 F. Supp. 2d at 1330, 1331.
On remand, the Department continued to treat retorts as an indirect material input
covered by the value of overhead expenses, found no evidence of fraud by Tianjin based on
evidence contained in USM’s untimely submission, used World Bank 5 data to calculate the
surrogate value for truck freight, relied on the 2006–2007 financial statements of aluminum
producer Madras Aluminium Limited Company (“MALCO”) as the basis for calculating the
financial ratios, and made an adjustment to its labor rate calculation. Remand Results at 2, 3, 21,
30, 31. These changes resulted in a 51.26 percent margin for Tianjin. 6 Remand Results at 3.
5 	The World Bank collected the data used to calculate the surrogate value for truck
freight “as part of the Doing Business project, which measures and compares regulations relevant
to the life cycle of a small- to medium-sized domestic business in 183 economies.” See Letter
from Jeffery B. Denning, King & Spalding LLP, to Hon. Gary Locke, Secretary of Commerce at
300, PD 29 (Part 1) (Dec. 7, 2010), ECF Dkt. No. 25 (“USM’s Surrogate Value Submission”).
In doing so, World Bank sent its Trading Across Borders Questionnaire to companies in India
and “[l]ocal freight forwarders, shipping lines, customs brokers, port officials and banks
provide[d] information on . . . cost . . . .” See USM’s Surrogate Value Submission at 304, 355.
6 	In the Final Results, Commerce had calculated a 0.00 percent margin for Tianjin.
Pure Magnesium From the PRC, 76 Fed. Reg. at 76,947.
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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). “The results of a redetermination pursuant to court remand are also
reviewed for compliance with the court’s remand order.” Yantai Xinke Steel Structure Co. v.
United States, 38 CIT __, __, Slip Op. 14-38, at 4 (2014) (quoting Xinjiamei Furniture
(Zhangzhou) Co. v. United States, 38 CIT __, __, Slip Op. 14-17, at 3 (2014)) (internal quotation
marks omitted).
DISCUSSION
I. 	L EGAL FRAMEWORK
“The United States imposes duties on foreign-produced goods that are sold in the United
States at less-than-fair value.” Jacobi Carbons AB v. United States, 38 CIT __, __, 992 F. Supp.
2d 1360, 1365 (2014) (quoting Clearon Corp. v. United States, 37 CIT __, __, Slip Op. 13-22, at
4 (2013)) (internal quotation marks omitted). When making the fair value determination,
Commerce is required to make “a fair comparison . . . between the export price[7] or constructed
export price[8] and normal value.” See 19 U.S.C. § 1677b(a).
7 	“Export price” is defined as
the price at which the subject merchandise is first sold (or agreed to be sold)
before the date of importation by the producer or exporter of the subject
merchandise outside of the United States to an unaffiliated purchaser in the
United States or to an unaffiliated purchaser for exportation to the United States.
19 U.S.C. § 1677a(a).
8 	“Constructed export price” is defined as
the price at which the subject merchandise is first sold (or agreed to be sold) in the
United States before or after the date of importation by or for the account of the
(footnote continued)
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Ordinarily, in a case such as this where the subject merchandise is exported from a
nonmarket economy country, 9 “the normal value of the subject merchandise [is determined
based on] the value of the factors of production utilized in producing the merchandise and [an]
added . . . amount for general expenses and profit plus the cost of containers, coverings, and
other expenses.” See id. § 1677b(c)(1). By statute, to find these surrogate values, Commerce is
directed to use, “to the extent possible, the prices or costs of factors of production in one or more
market economy countries that are . . . at a level of economic development comparable to that of
the nonmarket economy country[] and . . . significant producers of comparable merchandise.”
Id. § 1677b(c)(4). When valuing factors of production, Commerce must use “the best available
information regarding the values of such factors in a market economy country or countries
considered to be appropriate by the [Department].” Id. § 1677b(c)(1). In selecting the best
available information, Commerce’s practice “is to ‘choose surrogate values that represent broad
market-average prices, prices specific to the input, prices that are net of taxes and import duties,
prices that are contemporaneous with the POR, and publicly available non-aberrational data from
producer or exporter of such merchandise or by a seller affiliated with the
producer or exporter, to a purchaser not affiliated with the producer or exporter.
19 U.S.C. § 1677a(b).
9 	A “nonmarket economy country” is “any foreign country that [Commerce]
determines does not operate on market principles of cost or pricing structures, so that sales of
merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. §
1677(18)(A). “Because the Department deems the PRC ‘to be a nonmarket economy country,
Commerce generally considers information on sales in [the PRC] and financial information
obtained from Chinese producers to be unreliable for determining, under 19 U.S.C. § 1677b(a),
the normal value of the subject merchandise.’” Jacobi Carbons, 38 CIT at __ n.11, 992 F. Supp.
2d at 1365 n.11 (alteration in original) (quoting Shanghai Foreign Trade Enters. Co. v. United
States, 28 CIT 480, 481, 318 F. Supp. 2d 1339, 1341 (2004)). “Accordingly, Commerce invokes
a different statutory procedure for determining normal value if the subject merchandise is
exported from a nonmarket economy country.” Shanghai Foreign Trade Enters., 28 CIT at 481,
318 F. Supp. 2d at 1341.
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a single surrogate market-economy.’” Jacobi Carbons, 38 CIT at __, 992 F. Supp. 2d at 1366
(quoting Clearon, 37 CIT at __, Slip Op. 13-22, at 7) (citing 19 C.F.R. § 351.408(c)(2)). Thus,
to determine normal value of subject merchandise exported from a nonmarket economy country,
Commerce first must “assess the ‘price or costs’ of factors of production of [the product at issue]
in [a surrogate market economy country] in an attempt to construct a hypothetical market value
of that product in [the nonmarket economy country].” See Nation Ford Chem. Co. v. United
States, 166 F.3d 1373, 1375 (Fed. Cir. 1999).
As to financial ratios, “[i]n non-market economy antidumping cases, such as this, in
selecting financial statements to calculate the financial ratios used to determine an exporter’s
dumping margin, ‘Commerce looks to specificity, contemporaneity, and quality of the data.’”
Yantai, 38 CIT at __, Slip Op. 14-38, at 23 (quoting Dongguan Sunrise Furniture Co. v. United
States, 37 CIT __, __, 904 F. Supp. 2d 1359, 1366 (2013)).
II. 	L ABOR RATE ADJUSTMENT
In the Remand Results, Commerce made two corrections to the surrogate value for labor.
See Remand Results at 3, 21 (“The Department agrees with USM that it erred when inflating the
labor rate with respect to the base period and used the incorrect index to adjust for inflation in the
Final Results. Accordingly, the Department . . . corrected those two errors for [the] draft results
of redetermination.”). First, the Department corrected the base period it had used to adjust for
inflation by changing the period from May 1, 2007 through April 30, 2008 to a period
contemporaneous with that of the data itself, April 1, 2007 through March 31, 2008. See
Remand Results at 21. Second, Commerce selected “the consumer price index typically used to
adjust for inflation in accordance with the Department’s labor policy bulletin,” rather than the
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wholesale price index from India that Commerce had used in the Final Results. See Remand
Results at 21.
Because Commerce was reasonable in choosing a time period more contemporaneous
with the data and used the consumer price index in accordance with its past practice, and because
neither USM nor Tianjin challenge the adjustment, it is sustained.
III. 	USM’ S ARGUMENTS
A. Characterization of Retorts as Factory Overhead
USM objects to the Department’s characterization of the retorts, used in the production of
pure magnesium, as an indirect input, valued as part of factory overhead, rather than a direct
input.
“Retorts” are steel tubes used during the purification process of magnesium. Tianjin
“imports pure magnesium supplied by a sole producer,” Company A, which “produces pure
magnesium via the ‘Pidgeon’ process.” USM I, 37 CIT at __, 895 F. Supp. 2d at 1322 (citation
omitted). To produce pure magnesium using this process, Company A “first treats magnesium-
bearing dolomite in a kiln to produce calcined dolomite.” Id. Next, the calcined dolomite is
mixed with ferrosilicon and fluorite powder. Id. Company A then “presses the mixture into
balls or briquettes” and,
[i]n order to . . . chemically and physically separate [the magnesium] from the
other inputs[,] . . . places the pressed mixture into retorts, which are “steel tubes
placed under a vacuum in a furnace.” 	The high heat from the furnace vaporizes
the magnesium, which travels through the retort and then “condense[s] into a
highly purified form.”
Id. (alteration in original) (quoting Def.’s Opp’n to Pl.’s Mot. for J. upon the Agency R. 5 (ECF
Dkt. No. 41)) (citing Issues & Dec. Mem. at 7 n.39).
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The court finds that a review of the steps the Department took, the evidence it considered,
and its past practice, demonstrate that the decision to treat the retorts as overhead rather than a
direct material was based on substantial evidence and is in accordance with law. Thus, for the
following reasons, the Department’s characterization of retorts as overhead is sustained.
To begin with, in the Final Results, the Department noted that “[i]ndirect materials are
usually: (1) items used in the production process, but not traceable to a particular product; or (2)
items that are added directly to products, but whose cost is so small that the effort of tracing that
cost to individual products would be greater than the benefit of accuracy.” Issues & Dec. Mem.
at 8 (emphasis added). Here, the Department found that the retorts “are not physically
incorporated into the final product and are replaced too infrequently to be a direct material.” See
Issues & Dec. Mem. at 8; Remand Results at 30. In support of these conclusions, the
Department noted that there was no record evidence “that the retorts are traceable to specific
magnesium products [and USM] conceded that [the] retorts are not physically incorporated into
the final product.” See Issues & Dec. Mem. at 9. Instead, according to Commerce, the record
indicated that the “retorts are steel tubes inside furnaces[,] . . . where [precursor materials] react
to form magnesium vapors which are then condensed and later re-melted into ingots.” See Issues
& Dec. Mem. at 9. Indeed, there is no real dispute that the retorts are not physically incorporated
into the pure magnesium product.
With regard to cost, USM suggests that the cost of retorts supports a finding that they are
a direct material input and argues that “Commerce . . . improperly determined that retorts are an
indirect material based on a finding that the associated ‘cost is so small that the effort of tracing
the cost[] to individual products would be greater than the benefit of . . . accuracy.’” US
Magnesium’s Comments Concerning Commerce’s Redetermination Pursuant to Remand 38
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(ECF Dkt. No. 94) (“Pl.’s Br.”) (quoting Remand Results at 14). USM, however, misconstrues
the Department’s point. In the Remand Results, Commerce stated that “[u]nder the
Department’s practice, indirect materials are usually items used in the production process, but
are not traceable to a particular product, or items that are added directly to products, but whose
cost is so small that the effort of tracing that cost to individual products would be greater than the
benefit of accuracy.” Remand Results at 14 (emphasis added). The Department, however, only
made reference to a small cost as being an indication that an input was an indirect material in
order to give a complete statement of its rule, not as a finding of fact. Commerce’s finding of
fact was that the retorts were an indirect material because they were not incorporated into the
resulting magnesium, not because their cost was small. USM’s argument, thus, is without merit.
Also, in the Final Results, from which Commerce did not depart in the Remand Results,
the Department determined that the evidence USM placed on the record during the investigation
in an attempt to demonstrate that the retorts were considered a direct material input by the
magnesium industry was inconclusive. See Issues & Dec. Mem. at 9; Remand Results at 30. In
particular, it first found financial reports from a ten-year-defunct company, Southern Magnesium
& Chemicals Ltd., to be speculative and unpersuasive. See Issues & Dec. Mem. at 9 (“First,
[USM] provided non-contemporaneous financial statements for this company covering the fiscal
years 1994–1995 through 2000–2001. None of these financial statements, except [those for]
1994–1995[,] . . . list retorts as a direct material.”).
Next, “[w]ith regard to [USM’s] claim that a Malaysian producer treated retorts as ‘raw
materials,’ the Department [found] that an individual company’s treatment [was] insufficient to
show that the magnesium industry as a whole treats retorts as [a] direct material when most of
the other industry financial statements available on the record . . . did not list retorts as direct
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material.” Issues & Dec. Mem. at 9. Accordingly, it is difficult to quarrel with the Department’s
conclusion that USM has presented little evidence that retorts are treated as a direct material
input by the magnesium industry.
USM next asserts that record evidence demonstrates that Company A treated retorts as a
direct input on its financials. See Pl.’s Br. 29, 30. The primary evidence relied upon by USM is
a subledger, on which the retorts are described as “materials consumption.” See Pl.’s Br. 29
(quoting Ex. SD-6A to Pl.’s Br. (ECF Dkt. No. 94) (“Subledger”)) (internal quotation marks
omitted); see also Remand Results at 30. The Department, however, notes that the subledger
also (1) included “items that would not be considered direct material inputs” as “material[s]
consumption” 10 and (2) includes “other line-items that are not material inputs.” 11 See Remand
Results at 30–31 (quoting Mem. from Eve Wang, International Trade Compliance Analyst, to
The File at 3, PD 29 (Part 2) (Dec. 5, 2011), ECF Dkt. No. 25) (internal quotation marks
omitted). Thus, although, at first blush, the description “materials consumption” might indicate
that the listed items were direct inputs, an examination of the nature of the entries shows that
they are not. As a result, Commerce determined that, despite Company A having listed retorts as
“materials consumption,” the subledger does not indicate that Company A treated retorts as a
direct material. See Remand Results at 30–31.
In addition, because Company A’s “December 2009 monthly production cost sheet” does
not include retorts under the category of “raw material” along with other direct materials such as
dolomite and flux, Commerce concluded that the cost sheet was further evidence that Company
10 	The subledger also lists items such as [[ 	]] and [[ 	]], and
[[ 	]] is also described as “materials consumption.” See Subledger.
11 	The subledger also lists non-material inputs such as [[ 	]]. See Subledger.
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A did not treat retorts as a direct material. See Remand Results at 31 n.113 (“None of the
evidence presented by USM undermines the Department’s original determination with respect to
retorts. Record evidence demonstrates that [Tianjin’s] producer [(Company A)] does not treat
retorts as raw material on its books and records. [Company A’s] December 2009 monthly
production cost sheet, under the category of ‘raw material,’ i.e., direct materials, lists (1) Fesi;
(2) Dolomite; (3) Flux; (4) Fluorite Powder; (5) Sulphur Powder; and (6) Sulfuric Acid, and does
not include retorts.” (quoting Letter from David A. Riggle, Riggle & Craven, to Secretary of
Commerce at 113 (Ex. D-2h), CD 3 (Part 1) (Aug. 27, 2010), ECF Dkt. No. 25)). The foregoing
demonstrates that the Department’s conclusion, that Company A did not treat retorts as a direct
material, is supported by substantial evidence.
Aside from the evidence itself, USM also makes a claim with respect to Commerce’s
current practice by arguing “that physical incorporation [is] no longer . . . required for a finding
that an item is a direct material.” Pl.’s Br. 37. According to USM, Commerce is “exclusively
following its 1998 decision[12] that rested only on that factor,” physical incorporation, which is
no longer its practice, and, thus, “Commerce has in effect reverted to its old practice without
accurately explaining its reasons for doing so.” Pl.’s Br. 37 (citing Remand Results at 8). For
USM, “Commerce must consider all record evidence relevant to analysis of this issue” and “[i]t
has not done so.” Pl.’s Br. 38.
12 	In the new shipper review to which USM refers, Commerce declined to treat
retorts as a direct material because they were not physically incorporated into the final product.
See Pl.’s Br. 17 n.24 (citing Pure Magnesium From the PRC, 63 Fed. Reg. 3,085, 3,088 (Dep’t of
Commerce Jan. 21, 1998) (final results of antidumping duty new shipper administrative review)).
This new shipper review tends to support the conclusion that the Department has a past practice
of finding physical incorporation to be important in a determination of how to characterize an
input.
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USM asserts that the following statement in a supplemental questionnaire issued to
Tianjin indicates that Commerce no longer requires physical incorporation to make a finding that
an item is a direct material input:
[Tianjin] reported retort vessels as part of overhead and did not report per-unit
FOP consumption of the material. . . . In addition, the Department has included as
direct material inputs that are essential to production and used in significant
quantities, despite[13] such inputs not being physically incorporated into the final
product.
See Pl.’s Br. 16 (alteration in original) (quoting Letter from Eugene Degnan, Program Manager,
to David A. Riggle, Riggle & Craven at 4, PD 40 (Part 1) (Jan. 18, 2011), ECF Dkt. No. 25).
The Department maintains, though, that physical incorporation is still an important factor
that it permissibly considered in making its determination. See Remand Results at 31 (“Lastly,
as to USM’s assertion that the draft remand results failed to acknowledge that the basis for the
1998 [characterization] of retorts, based on physical incorporation, is no longer the Department’s
policy, we disagree. Although USM points to a supplemental questionnaire to argue that
‘physical incorporation is no longer required for finding an item to be an indirect material,’ this
does not demonstrate that the Department does not consider physical incorporation in its
analysis. Indeed, as explained above, the CIT[14] recently upheld the Department’s decision in
which it considered physical incorporation whether looking at the direct versus indirect material
13 	The presence of the word “despite,” of course, undermines USM’s argument.
14 	In Bridgestone Americas v. United States, the input at issue, HO Oil was “added
in [the] milling process, for the purposes of softening rubber and improving its processing
technical function.” Bridgestone Americas, Inc. v. United States, 34 CIT __, __, 710 F. Supp. 2d
1359, 1364 (2010) (alteration in original) (citation omitted) (internal quotation marks omitted).
The Bridgestone Americas Court held that Commerce’s finding, that the oil was a direct input,
was supported by substantial evidence and in accordance with law because “[i]n ordinary
parlance this description characterizes an input that is physically incorporated into the finished
product.” Id.
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analysis.” (citation omitted)). It is apparent that the question, from the Department’s
supplemental questionnaire, to which USM points was designed to elicit other information that
might be relevant to the issue of whether the retorts should be characterized as a direct input, not
a signal that it was abandoning its physical incorporation analysis.
Commerce is thus right in its claim that treating the retorts as an indirect material is
consistent with its past practice of characterizing materials as overhead when “they are not
physically incorporated into the final product and are replaced too infrequently to be a direct
material.” See Issues & Dec. Mem. at 8. In the Issues and Decision Memorandum, Commerce
pointed to its prior determinations regarding copper wire incorporated into cans used to preserve
mushrooms and two kinds of molds—graphite and steel—used in the production of diamond
sawblades. Commerce stated that,
[u]nlike the copper wire in Mushrooms/PRC AD Final (09/14/2005) (where
copper wire became part of the can covered by the scope of the order) or graphite
molds in Diamond Sawblades/PRC AD Final (05/22/2006) (where a portion of
the graphite mold[] was absorbed into the finished segment), retorts in this review
are not consumed and incorporated into the final product. 	Furthermore, [in
Diamond Sawblades/PRC AD Final (05/22/2006),] the Department found that
graphite molds were replaced regularly enough to represent a direct material
rather than overhead. 	In Diamond Sawblades/PRC AD Final (05/22/2006), the
producer used both graphite and steel molds to produce the final product and the
Department reached different conclusions as to whether each kind of mold was a
direct material. 	While the Department found graphite molds to be a direct
material, it found steel molds to be overhead. 	In addition to considering the fact
that steel molds were not absorbed into the final product, the Department
reasoned that steel molds were replaced less frequently than graphite molds. Thus,
. . . the Department finds that retorts are more like steel molds and are considered
overhead, than graphite molds, because retorts are not consumed into the final
product [15] and are replaced too infrequently[16] to be a direct material.
15 	Because there was no record evidence “that the retorts are traceable to specific
magnesium products [and USM] conceded that [the] retorts are not physically incorporated into
the final product,” it was reasonable for Commerce to conclude that retorts are not physically
incorporated into the pure magnesium produced by Company A. Issues & Dec. Mem. at 9.
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Issues & Dec. Mem. at 8 (footnotes omitted) (citing Certain Preserved Mushrooms From the
PRC, 70 Fed. Reg. 54,361 (Dep’t of Commerce Sept. 14, 2005) (final results and final rescission,
in part, of antidumping duty administrative review), and accompanying Issues and Decision
Memorandum at comment 15; Diamond Sawblades and Parts Thereof from the PRC, 71 Fed.
Reg. 29,303 (Dep’t of Commerce May 22, 2006) (final determination of sales at less than fair
value and final partial affirmative determination of critical circumstances), and accompanying
Issues and Decision Memorandum at comment 2). In addition, Commerce is correct that this
analysis demonstrates both (1) that the Department continues to consider physical incorporation
when making a determination as to whether an input is a direct material or not and (2) how this
consideration is used in its analysis.
The Department’s thorough review of USM’s claims demonstrates that they are without
merit. Therefore, the Department’s determination to treat retorts as an indirect material valued as
overhead is sustained as being supported by substantial evidence and in accordance with law.
B. The Untimely Submission
Almost eleven months after the deadline, USM filed a submission of publicly available
information regarding retorts, including (1) an August 26, 2011 Chinese magnesium industry
bulletin, (2) “the website of an entity that [USM] claims is the producer of the subject
magnesium[,] and [(3)] an excerpt from a May 2006 Chinese Magnesium Industry Directory
16 	Company A replaces its retorts every [[ 	]]. See Mem. from Eve Wang,
International Trade Compliance Analyst, to The File at 3 n.9, CD 6 (Part 2) (Dec. 5, 2011), ECF
Dkt. No. 25.
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published by the Chinese Magnesium Association.” 17 See Submission Rejection Mem. at 2; see
also USM I, 37 CIT at __, 895 F. Supp. 2d at 1323. USM insists that the submission, along with
other record evidence, shows (1) that Company A is the same entity as (or is very closely aligned
with) Company B, 18 another manufacturer of magnesium, (2) that Company B was a producer of
retorts, and (3) that Company A therefore produced, rather than rented, the retorts it used to
make the subject merchandise that it supplied to Tianjin. See Submission Rejection Mem. at 2;
Pl.’s Br. 13, 14. According to USM, Tianjin was required to disclose to the Department that
Company B, and thus Company A, produced retorts and “[i]ts failure to do so . . . is strong
evidence that fraud occurred in the underlying review.” See Pl.’s Br. 15. Moreover, according
to USM, this evidence is significant because a finding of fraud on the part of Tianjin would
permit the Department to apply adverse facts available 19 (“AFA”) to Tianjin’s submissions
17 	USM claimed in its Rule 56.2 brief that the “Chinese industry bulletin
conclusively establish[ed] that [Company A] produced the estimated [[ 	]] retorts
it is estimated to have consumed at one of its two magnesium factories during the POR” and that
the website and directory corroborated the information in the bulletin. See US Magnesium’s
Rule 56.2 Br. in Supp. of Mot. for J. on the Agency R. 7, 8 (ECF Dkt. No. 32) (“USM’s 56.2
Br.”) (citing Submission Rejection Mem. at 2). According to USM, because Tianjin “had failed
to report this fact and instead claimed that [Company A] rented retorts,” and because this
“information was dispositive of a crucial issue” (the characterization of retorts as direct or
indirect material inputs), “the [(untimely)] submission demonstrated that [Tianjin] had concealed
material facts in an effort to reduce its margins.” USM’s 56.2 Br. 7–8. Before the court, USM
does not appear to make any specific arguments related to the documents in its untimely
submission. USM does, however, continue to argue against Commerce’s general position that
the documents do not pertain to Company A or show that Company A produced the retorts it
used to manufacture pure magnesium. See Pl.’s Br. 14.
18 	[[ 	]] identity is being
withheld as business-proprietary information. All references to this company hereinafter will be
to “Company B.”
19 	Pursuant to 19 U.S.C. § 1677e(b), if Commerce “finds that an interested party has
failed to cooperate by not acting to the best of its ability to comply with a request for information
(footnote continued)
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regarding the retorts. See Pl.’s Br. 16, 21. The Department rejected the submission as untimely
and, thus, did not consider the factual information found in the rejected documents in the Final
Results. See Submission Rejection Mem. at 2.
The USM I Court remanded the issue of USM’s untimely submission, instructing the
Department to consider whether the untimely submission should be placed on the record. See
USM I, 37 CIT at __, 895 F. Supp. 2d at 1326.
1. 	Whether Fraud Existed and the Strength of the Evidence of Fraud
Pursuant to the USM I Court’s remand order, the Department opened the administrative
record and accepted USM’s untimely submission so that it could consider whether the
documents provided prima facie evidence of fraud related to the relationship between Company
A and Company B and whether Company A made or rented the retorts. See Remand Results at
2, 5. In the Remand Results, the Department determined that USM’s submission did not
demonstrate fraud on the part of Tianjin largely because the documents that made up the
submission did not (1) contradict or undermine Tianjin’s statement that Company A rented
retorts or (2) demonstrate that Company A produced, rather than rented, retorts. See Remand
Results at 24.
In reaching this determination, the Department found the USM evidence to be
unconvincing and chose to rely on what, it believed, was more reliable information on the record.
This evidence was the verification report from the 2007–2008 review and the fact of Company
A’s (rather than Company B’s) control of the plants that produced the pure magnesium at issue.
from the [Department],” Commerce “may use an inference that is adverse to the interests of that
party in selecting from among the facts otherwise available.” 19 U.S.C. § 1677e(b).
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Based on this evidence, the Department determined that Company A and Company B were
separate operations, headquartered in the same building. 20 See Remand Results at 24, 25, 26
(stating that, “even though both the 2007–2008 and 2008–2009 verifications of the sales and
accounting activities of [Company A] took place in [Company B’s] headquarters, [Commerce]
treated, and continue[s] to treat, them [as] separate[] legal entities,” that the 2007–2008
verification report “clearly states that the companies are separate legal entities,” and that, in the
2008–2009 and 2009–2010 reviews, “the two plants that produced the subject merchandise . . .
continued to be in the sole control of [Company A]”). Therefore, for the reasons given by the
Department, it found that the bulletin, website, and directory provided by USM, which show that
Company B made retorts, did not demonstrate that Company A made retorts or that Tianjin
provided inaccurate information to the Department regarding Company A.
The Department also rejected USM’s suggestion that Tianjin’s failure to disclose that
Company A was affiliated with Company B constituted a failure to cooperate because the
questionnaire sent to Tianjin did not require it to disclose that information. See Remand Results
at 24, 27–28 (“Further, we disagree with USM that [Tianjin] failed its duty to report, or was even
on notice of an obligation to report, the fact that its supplier [(Company A)] may have had an
affiliate [(Company B)] that produces retorts. . . . [T]he . . . question directs [Tianjin], the
respondent in this review, to report its affiliate producers. In response, [Tianjin] responded that
[Company A] was its unaffiliated producer. However, the Department did not design this
question to seek information regarding affiliates of non-affiliated producers[ (i.e., whether
Company A was affiliated with Company B)]. Whether a non-affiliate producer has other
20 	The Department also noted that neither the fax number nor address identified in
the USM documents for Company B “matche[d] the fax number or address of [Company A] on
the record.” See Remand Results at 13.
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affiliates has no implication on the dumping margin calculation pertaining to the respondent if
these affiliates are not involved in the production of the subject merchandise exported by
[Tianjin], as in this review. Record evidence also shows that [Tianjin] has no affiliation with its
supplier of subject merchandise, [Company A], in this review. Thus, contrary to USM’s claim,
[Tianjin] would have no duty to report whether its non-affiliate supplier [Company A] had an
affiliate that produced retorts.” (footnotes omitted)).
The court sustains the Department’s determination “that the documents submitted by
USM do not demonstrate prima facie evidence of fraud by [Tianjin].” See Remand Results at
31.
First, Commerce considered the record evidence and reasonably determined that
Company A and Company B were not the same company. See Remand Results at 24–25 (“The
2007–08 verification report explicitly states that [Company B] and [Company A] are ‘separate
legal entities,’ and ‘kept distinct financial records during the [period of review].’ During that
[period of review], ‘beginning in January 2008, [a] pure magnesium plant was transferred to
[Company A], at which point [Company A] became the sole producer of subject merchandise for
the remainder of the [period of review].’ The Department verified the relevant documents
recording the ownership transfer from [Company B] to [Company A]. During the subsequent
two reviews (i.e., the 08–09 and 09–10 reviews), the two plants that produced the subject
merchandise . . . continued to be in the sole control of [Company A], and [Company B] was no
longer [Tianjin’s] supplier of pure magnesium for those reviews. No evidence on the record of
this review contradicts these findings. . . . As explained in the draft remand results, even though
both the 2007–2008 and 2008–2009 verifications of the sales and accounting activities of
[Company A] took place in [Company B’s] headquarters, we treated, and continue to treat, them
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Court No. 12-00006 	Page 20
to be separate[] legal entities.” (footnotes omitted)). 21 In other words, the Department did not
simply take Tianjin’s word for the relationship between Company A and Company B; this
relationship was a subject of verifications. Moreover, Tianjin had provided the Department with
documentation showing that it rented its retorts and, in the Remand Results, the Department
stated that it did “not find that the new record evidence demonstrates that [Company A]
produced retorts rather than rented them.” See Remand Results at 26, 29 (“In response to the
Department’s request for [Company A’s] internal documentation prepar[ed] during the normal
course of business indicating the retorts are treated as overhead, [Tianjin] provided a rental lease
of retorts as well as excerpts of Chinese accounting literature showing that rent is treated as an
indirect manufacturing expense in China.”).
Second, the Department correctly rejected USM’s argument that Commerce should apply
AFA as a result of Tianjin’s failure to submit information about Company B because the
questionnaire sent to Tianjin did not require it to disclose information about unaffiliated
companies that did not produce the subject magnesium. Indeed, Question 3.a of the
questionnaire directed the respondent, here, Tianjin, to “[p]rovide an organization chart and
description of [the] company’s [(Tianjin’s)] operating structure,” to “[d]escribe the general
organization of the company and each of its operating units,” and “for all affiliated producers of
the merchandise under consideration, [to] provide information for the following table.” See
Remand Results at 27 (emphasis added) (quoting Letter from Eugene Degnan, Acting Program
Manager, to David A. Riggle, Riggle & Craven at A-5–A-6, PD 4 (Part 1) (June 30, 2010), ECF
21 	Moreover, Commerce also found that USM’s claim that Company A “[[
]] finds no
support on the record. . . . In fact, the second piece of evidence proffered by USM states that
[[ 	]] specifically refers to [Company B], not [Company A].” Remand Results at
25 (footnote omitted).
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Dkt. No. 25). Although Company B may be affiliated with Company A, there is no indication
that Tianjin was affiliated with Company A, let alone, Company B. As such, because Company
B is not affiliated with Tianjin and is not itself a producer of the subject merchandise, Tianjin
was not required to include information about Company B in its response to the questionnaire.
Thus, Tianjin did not fail to disclose information about Company B, or Company A’s
relationship with Company B, because the questionnaire did not ask for that information.
Because Commerce reasonably determined that the record evidence does not show that
the companies are so closely aligned that they should be considered one, and because Tianjin did
not fail to disclose the information that Commerce asked for in its questionnaire, Commerce’s
finding that the documents do not provide evidence of fraud or warrant the application of AFA is
supported by substantial evidence.
2. 	Level of Materiality
In addition to finding that the evidence did not support a finding that Company A made,
rather than rented, the retorts, the Department found that, even if the reverse had been true, it
would have been immaterial to its determination that the retorts were an indirect input. Pursuant
to the USM I Court’s instructions, Commerce considered the level of materiality of the
information in USM’s untimely submission, as well as USM’s claim that Tianjin failed to
disclose Company A’s affiliation with Company B, and found “that this information ha[d] no
bearing on the [characterization] of retorts as overhead in this case” and was thus not material to
its determination. See Remand Results at 15, 31. Put another way, the Department found and
the court agrees that, even if the information contained in the untimely submission had shown
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that the relationship between Company A and Company B was so close that Company A could
be considered a manufacturer rather than a lessee of retorts, it simply would not have mattered.
Although USM claims that Tianjin’s “failure to provide complete disclosure of its
supplier’s business practices [(i.e., USM’s claim that Company A produced, rather than rented,
retorts)] with respect to retorts necessarily is material to the margin calculations,” this is clearly
not the case. See Pl.’s Br. 26. As Commerce indicated, whether an input is rented or produced
does not affect the Department’s analysis in characterizing the input as either a direct material
input or an indirect material input valued as overhead. Remand Results at 14–15.
There can be no real question that Commerce was correct in its finding. As has been
previously noted, the Department was reasonable in treating the retorts as overhead. Whether
Company A rented or produced the retorts it used, however, had no bearing on Commerce’s
characterization of the retorts or on its resulting margin calculation. Thus, Tianjin’s rate would
have been the same had it disclosed a close relationship between Company A and Company B or
had Commerce found that Company A produced its retorts. Therefore, because the court has
already sustained Commerce’s characterization of the retorts as overhead, and because the
manner in which Company A acquired the retorts had no impact on that characterization (or
consequently, on Tianjin’s rate), the Department’s finding regarding materiality is sustained.
IV. 	T IANJIN’S ARGUMENTS
Tianjin argues that the Remand Results should be returned to Commerce for the
Department to consider the arguments made in its comments on the draft remand results with
respect to the surrogate value for truck freight and to give it an opportunity to comment on the
selection of the MALCO data as the basis for the financial ratios in the Remand Results.
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A. Selection of the World Bank Data to Calculate the Surrogate Value for Truck
Freight
In the Final Results, Commerce acknowledged that it was unclear exactly what costs
were covered by the Infobanc truck freight rate data, but nonetheless concluded that it was the
best available information on the record and selected the data to calculate the surrogate value for
truck freight. See Issues & Dec. Mem. at 16, 18. The USM I Court remanded this finding
because it concluded that Commerce had “erred in failing to support its selection of Infobanc
rates with substantial evidence and in ignoring contradictory evidence on the record.” USM I, 37
CIT at __, 895 F. Supp. 2d at 1328.
Thus, on remand, Commerce was directed to “either adequately explain its rationale for
selecting Infobanc data with support from substantial evidence in the record or select a new
surrogate for truck freight rates.” Id. at __, 895 F. Supp. 2d at 1330. In the Remand Results, the
Department found that the World Bank data was the best available information, and used those
rates to value inland truck freight, because it was “contemporaneous with the POR and based on
country-wide information,” “[t]he World Bank provides information on the source and
calculation of the rates it reports,” and the World Bank submission included “a detailed
discussion support[ing] how the World Bank data were determined.” See Remand Results at 17.
Commerce also found the World Bank publication to be “reliable because it provides detailed
information about its local partners with whom it works to collect the necessary information for
calculat[ing] its reported rates.” Remand Results at 17.
While Tianjin asks for another remand so that Commerce might consider its argument,
made in its comments on the draft remand results, that “[t]he World Bank data is aberrational
and not representative of India’s truck freight prices,” it is apparent that the reason the
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Department did not address this argument is because Tianjin misfiled its comments. 22 See
Comments of Def.-Int. Tianjin Magnesium International Co., Ltd. on the Department’s Remand
Determination of July 11, 2013 2 (ECF Dkt. No. 92) (“Tianjin’s Br.”); Public App. to Tianjin’s
Br. 2 (ECF Dkt. No. 95); Oral Arg. Tr. 31:24–32:10 (ECF Dkt. No. 115); see also Def.’s Reply
to Comments Regarding Final Remand Results 22 (ECF Dkt. No. 106) (“Def.’s Br.”). Because
of this misfiling, Tianjin’s comments concerning the calculation of truck freight were never
entered on the record of the administrative proceeding and, as a result, the Department was
unaware of them. See Remand Results at 2 (“[Tianjin] did not submit comments on the draft
remand results.”); see also Def.’s Br. 22–24.
Although it acknowledges that it selected the wrong period of review when electronically
filing its comments, 23 Tianjin’s counsel nonetheless argues that “[t]o the extent the Department
did not even consider [its] comments on the draft remand, such remand must be rejected and
returned to the Department for consideration of [Tianjin’s] timely filed comments.” Tianjin’s
Br. 2; see also Oral Arg. Tr. 31:24–32:10. Notably, Tianjin’s counsel gives no reason or
explanation as to how their misfiled comments were “timely.”
The court will not remand this case again because, first, Tianjin’s counsel misfiled its
client’s comments, thus preventing the Department from considering them and thereby waiving
its opportunity to be heard during the administrative process, and, second, in its arguments
22 	Tianjin misfiled its comments to Commerce on the draft remand results by
selecting the incorrect period of review so that its comments were not electronically filed in the
correct location. See Oral Arg. Tr. 31:24–32:10 (ECF Dkt. No. 115).
23 	At oral argument, Tianjin’s counsel stated that in filing the comments, “one of the
attorneys in [his] office when doing the electronic [indiscernible] selected, incorrectly selected
the wrong period for that electronically.” See Oral Arg. Tr. 32:5–32:7. According to the
government’s counsel, “when something’s filed under the wrong segment, it doesn’t necessarily
get to the correct Commerce employees.” Oral Arg. Tr. 33:11–33:12.
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before the court, 24 Tianjin has not shown that the Department’s selection of the World Bank data
was somehow wrong.
In its misfiled comments on the Department’s draft remand results, which are attached to
its brief before this court as an appendix, Tianjin’s entire argument is that the World Bank data
selected as a surrogate for truck freight is aberrationally high. See Public App. to Tianjin’s Br.
2–3. Tianjin cites to no record evidence, however, that this is the case.
Moreover, because Commerce demonstrated in the Remand Results that the World Bank
data is “contemporaneous with the POR and based on country-wide information,” and that “[t]he
World Bank provides information on the source and calculation of the rates it reports” and
“about its local partners with whom it works to collect the necessary information for
calculat[ing] its reported rates,” the Department’s determination that the World Bank data is the
best available information on the record for valuing truck freight is supported by substantial
evidence. See Remand Results at 17–18; see also Since Hardware (Guangzhou) Co. v. United
States, 37 CIT __, __, 911 F. Supp. 2d 1362, 1375 (2013) (“World Bank data represent a
reputable source of information for valuing brokerage and handling because those data are
prepared by an independent organization and are based upon a survey derived from a broad
24 	Tianjin’s entire argument on this point in its brief before the court is as follows:
The [R]emand [R]esults presented to the Court are factually inaccurate. In
the [R]emand [R]esults by the Department it is stated at page 2 that “[Tianjin] did
not submit comments on the draft remand results.”
This is untrue. 	[Tianjin] filed its comments on the [draft] remand results
on May 13, 2013 under bar code 3135316. The Department failed to include such
comments in the record it sent forward to the Court. To the extent the Department
did not even consider [Tianjin’s] comments on the draft remand, such remand
must be rejected and returned to the Department for consideration of [Tianjin’s]
timely filed comments.
Tianjin’s Br. 2 (citation omitted) (quoting Remand Results at 2). Remarkably, Tianjin’s counsel
failed to alert the court in its papers that it had misfiled its comments.
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number of producers.”); Dongguan Sunrise Furniture Co. v. United States, 36 CIT __, __, 865 F.
Supp. 2d 1216, 1246 (2012) (“Commerce has consistently found the World Bank to be a reliable
source for data.” (citation omitted)). Thus, this determination is sustained.
B. Selection of the MALCO Data as the Basis for Financial Ratios
Rather than using the financial statements of aluminum producers Sudal Industries
Limited (“Sudal”), Bhoruka Aluminium Limited (“Bhoruka”), and Gujarat Foils Limited
(“Gujarat”) as it had done in the draft remand results, in the final Remand Results, the
Department selected MALCO data as the basis for financial ratios. Remand Results at 2–3.
Tianjin, whose misfiled comments apparently supported the Department’s use of the
Sudal, Bhoruka, and Gujarat financial statements in the draft remand results, argues that it “was
given no opportunity to address the Department’s reasons for selecting [MALCO]” and that
Commerce’s selection of the MALCO data “cannot be sustained where a party was deprived of
the opportunity to comment on the Department’s determination and the facts and logic
underlying such determination.” Tianjin’s Br. 2, 3 (citing Public App. to Tianjin’s Br. 1–2).
Tianjin alleges that MALCO received subsidies, that the MALCO data did not overlap the POR
(i.e., that the MALCO data was non-contemporaneous with the POR), and “that the Department
improperly rejected the [financial statements of the] [a]luminum producers used in the draft
remand,” i.e., those of Sudal, Bhoruka and Gujarat. Tianjin’s Br. 2–3.
The Department responds that Tianjin cites no record evidence in support of its subsidies
claim, that the contemporaneity issue was adequately addressed by Commerce in the Remand
Results, and that, thus, Commerce’s selection of the MALCO data is supported by substantial
evidence. Def.’s Br. 21–22.
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As to its reasons for selecting MALCO, the Department stated in the Remand Results 25
that it chose MALCO’s financial statements because MALCO produces aluminum, which the
Department had “previously determined to be a comparable product to pure magnesium.” 26
Remand Results at 33. Commerce also noted that, when selecting a surrogate producer, “the
Department examines how similar a proposed surrogate producer’s production experience is to
the [nonmarket economy] producer’s production experience.” Remand Results at 33. Like
Company A, which produces pure magnesium, “MALCO produces only an unwrought metal
product and does not produce downstream products.” Remand Results at 33. “Because
[Company A] manufactured primary pure magnesium instead of magnesium metal, [Commerce
found] that relying on MALCO’s financial statements [was] more appropriate in these [R]emand
[R]esults than those of the three downstream aluminum producers [(Sudal, Bhoruka, and
Gujarat)], even though their production experience is somewhat similar to [Company A’s]
production.” Remand Results at 34.
25 	Commerce first stated that, “when selecting financial statements for the purpose
of calculating surrogate financial ratios, the Department’s policy is to use data from market-
economy surrogate companies based on the specificity, contemporaneity, and quality of the
data.” Remand Results at 32. Further, the “surrogate values for manufacturing overhead,
general expenses, and profit . . . will normally be based on publicly available information from
companies that are in the surrogate country and that produce merchandise that is identical or
comparable to the subject merchandise.” Remand Results at 32–33 (citing 19 CFR
351.408(c)(4)). “[I]t is the Department’s practice to, where appropriate, apply a three-prong test
that considers the: (1) physical characteristics; (2) end uses; and (3) production process” in
determining what constitutes “comparable merchandise.” Remand Results at 33 (internal
quotation marks omitted).
26 	The Department cites its determinations in a new shipper review of pure
magnesium from the PRC for this proposition. Remand Results at 33 (citing Pure Magnesium
From the PRC, 62 Fed. Reg. 55,215, 55,217 (Dep’t of Commerce Oct. 23, 1997) (preliminary
results of antidumping duty new shipper administrative review); Pure Magnesium From the
PRC, 63 Fed. Reg. 3,085, 3,087 (Dep’t of Commerce Jan. 21, 1998) (final results of antidumping
duty new shipper administrative review)).
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Commerce recognized in the 2008–2009 review that Sudal and Gujarat’s production
processes were similar to a “secondary production process” that “involved melting magnesium
scrap and alloys in a smelter and then solidifying the mixture in molds to make magnesium metal
ingots.” Remand Results at 33. Company A, on the other hand, uses “a primary production
process,” which “begins by calcining dolomite with coal and then mixing calcined dolomite with
chemical compounds (i.e., ferrosilicon and fluorite powder) to create metal balls, which [are]
placed into a reduction furnace to produce magnesium crown that will be further refined to
remove impurities.” Remand Results at 33–34. In other words, Company A’s “finished product,
pure magnesium, is unwrought metal while Sudal, Bhoruka, and Gujarat begin their production
with an unwrought metal and finish with a wrought metal product[].” Remand Results at 34.
Here, after “find[ing] that Sudal, Bhoruka, and Gujarat’s production experience occurs at a
different level of production from [Company A],” Commerce stated that, “[i]n comparison,
MALCO produced primary aluminum, which the Department has previously found to be
comparable to pure magnesium.” Remand Results at 34.
Regarding contemporaneity, Commerce addressed the lack of overlap between the
MALCO financial statements and the POR in the Remand Results. See Remand Results at 34
(“Although MALCO’s 2006–2007 financial statements [were] an additional year removed from
[Tianjin’s] POR, [it] nevertheless [found] MALCO’s financial statements to be most appropriate
in this review because MALCO [was] the only candidate for surrogate financial statements on
the record that employs the same production process as the one used by [Company A].”). In
other words, although not contemporaneous with the POR, the MALCO data was nonetheless the
“best available information” because it was best approximated to Company A’s production
process.
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As to its suggestion that MALCO received subsidies, Tianjin does not explain its
reasoning or point to any evidence, let alone record evidence, that this is the case. See Tianjin’s
Br. 2 (arguing that, because “the Department gave no indication in its draft results that it was
going to select [MALCO], absent either a time machine or access to the oracle at Delphi,
[Tianjin] would have no way of commenting on such methodology and pointing out the many
defects including the existence of subsidies for [MALCO]”). Moreover, neither has the court
found any evidence on the record suggesting that MALCO received subsidies.
Because the Department chose the MALCO data as the basis for financial ratios after it
had reviewed comments on the draft remand results, no party had an opportunity to comment on
the selection during the administrative process. Tianjin is thus correct that it should be afforded
an opportunity to dispute the choice. Moreover, because the Department changed its selection
between the draft remand results and the final Remand Results, Tianjin cannot be faulted for not
exhausting its administrative remedies. See Jacobi Carbons, 38 CIT at __, 992 F. Supp. 2d at
1367 (“Accordingly, because plaintiffs had no realistic opportunity to present their arguments
before the Department, the court finds that plaintiffs did not fail to exhaust their administrative
remedies.”).
Tianjin is wrong, however, on where its argument should be made. That is, rather than
seeking a remand, Tianjin’s avenue was to make its arguments before the court in this appeal.
See Tianjin Magnesium Int’l Co. v. United States, 35 CIT __, __, Slip Op. 11-17, at 8–9 (2011)
(“Furthermore, the Court of International Trade provides [Tianjin] a forum in which to challenge
its AFA rate, regardless of exhaustion, in the event that Commerce unexpectedly changes its
mind between the preliminary and final results.” (citing Qingdao Taifa Grp. Co. v. United States,
33 CIT 1090, 1093, 637 F. Supp. 2d 1231, 1236 (2009))); Qingdao, 33 CIT at 1093, 637 F.
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Court No. 12-00006 	Page 30
Supp. 2d at 1236 (“A party, however, may seek judicial review of an issue that it did not raise in
a case brief if Commerce did not address the issue until its final decision, because in such a
circumstance the party would not have had a full and fair opportunity to raise the issue at the
administrative level.” (citing LTV Steel Co. v. United States, 21 CIT 838, 868, 985 F. Supp. 95,
120 (1997))).
Tianjin had the opportunity to make a substantive case before the court in its comments
following the Remand Results. Tianjin did not make substantive arguments here, however, and,
to the extent it made cognizable objections, they are not sufficient to call the Department’s
determination into question. The record does not appear to contain evidence that MALCO
received subsidies and the Department adequately explained, based on record evidence, why it
chose the MALCO data even though it is not contemporaneous with the POR. Thus, because the
court cannot find that the Department’s determination was unsupported by substantial evidence,
its selection of the MALCO financial statements is sustained.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the Department of Commerce’s Final Results of Redetermination are
sustained. Judgment will be entered accordingly.
Dated: 	May 21, 2015
New York, New York
/s/ Richard K. Eaton
Richard K. Eaton
Case 1:12-cv-00006-RKE Document 131 Filed 06/12/15 Page 30 of 30