Aluminum Association Trade Enforcement Working Group and its Individual Members et al v. United States

Slip Op. 26-13
UNITED STATES
COURT OF INTERNATIONAL TRADE
Consol. Court No. 21-00616
ASSAN ALUMINYUM SANAYI VE TICARET A.S.,
Plaintiff/Defendant-Intervenor,
v.
UNITED STATES,
Defendant,
and
ALUMINUM ASSOCIATION TRADE
ENFORCEMENT WORKING GROUP
and its individual members,
Consolidated Plaintiffs/Defendant-Intervenors.
Before: M. Miller Baker, Judge
OPINION
[Sustaining Commerce in Case 21-616 and remanding
in Case 21-618.]
Dated: February 18, 2026
Leah N. Scarpelli, Matthew M. Nolan, and Jessica R.
DiPietro, ArentFox Schiff LLP, Washington, DC, on
the comments for Plaintiff/Defendant-Intervenor.
John M. Herrmann, Paul C. Rosenthal, and Joshua R.
Morey, Kelley Drye & Warren LLP, Washington, DC,
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 1 of 28

Consol. Ct. No. 21-00616 	Page 2
on the comments for Consolidated Plaintiffs/Defend-
ant-Intervenors.
Emma E. Bond, Senior Trial Counsel, Commercial Lit-
igation Branch, Civil Division, U.S. Department of
Justice, Washington, DC, on the comments for Defend-
ant. Of counsel for Defendant was JonZachary Forbes,
Senior Attorney, Office of the Chief Counsel for Trade
Enforcement 	and 	Compliance, 	U.S. 	Department 	of
Commerce, Washington, DC.
Baker, Judge: These consolidated challenges to the
results of the Department of Commerce’s antidumping
investigation of aluminum foil from Turkey return fol-
lowing remand. See Assan Aluminyum Sanayi ve Ti-
caret A.S. v. United States, Slip Op. 24-56, 2024 WL
2044061 (CIT 2024) (Remand Op.). For the reasons
stated below, the court sustains the redetermination
in Case 21-616 and remands Case 21-618 for further
proceedings.
I
In this litigation’s first round, Turkish foil manu-
facturer Assan Aluminyum Sanayi ve Ticaret A.S. as-
serted that four deficiencies in Commerce’s determina-
tion inflated its dumping margin: (1) the denominator
used in the calculation of a drawback adjustment;
(2) the treatment of late fees in that same calculation;
(3) the handling of certain management fees as indi-
rect selling expenses; and (4) the averaging of raw ma-
terial costs. Id. at 2, 2024 WL 2044061, at *1. Attack-
ing from the other direction, the Aluminum Associa-
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 2 of 28

Consol. Ct. No. 21-00616 	Page 3
tion Trade Enforcement Working Group and its con-
stituent domestic producer members (collectively, the
Association) 1 contended that Assan received a deflated
dumping margin because the Department treated its
hedging revenues as part of its cost of production. Id.
The government, meanwhile, asked for a voluntary re-
mand to allow the agency to reconsider the drawback
denominator question. Id.
The court granted the government’s request. Id. at
2, 2024 WL 2044061, at *1. It also sustained the
agency’s decision as to late fees and management fees.
Id. at 22; 2024 WL 2044061, at *8.
As for raw material costs, the court remanded be-
cause the Department failed to address one of Assan’s
arguments. Id. at 27–28, 2024 WL 2044061, at *10.
Commerce acknowledged the company’s theory that
any analysis should look at the total cost of manufac-
turing, not just the cost of the material itself, but gave
no explanation for rejecting it. The court directed the
agency to reconsider or further explain its decision. Id.
at 28–30, 2024 WL 2044061, at *10.
Regarding hedging revenues, the court observed
that the Department’s decision rested “on the rejection
of a series of claims [by the Association] that Com-
merce and Assan now concede are at least partially
1 The Association intervened in Assan’s case (Case 21-616)
to support the government and also brought its own chal-
lenge (Case 21-618). The court fully consolidated the two
matters under the former docket.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 3 of 28

Consol. Ct. No. 21-00616 	Page 4
correct.” Id. at 37, 2024 WL 2044061, at *13. The court
directed the agency “to reconsider or further explain
its treatment of Assan’s hedging revenues and to sup-
port that explanation with substantial evidence.” Id.
at 37–38, 2024 WL 2044061, at *14.
On remand, the agency modified its duty drawback
methodology and adjusted its calculation. For the raw
material cost and hedging revenue issues, it provided
more explanation but made no changes. The upshot
was that Assan’s weighted-average dumping margin,
and the “all-others” rate derived from it, increased by
0.02 percent. Appx126–127. For different reasons, nei-
ther the company nor the Association is happy with
that result.
II
A
1
Turkey’s duty drawback program 2 is called the “In-
ward Processing Regime.” Remand Op. at 6, 2024 WL
2044061, at *2. A participating company imports raw
materials 	without 	paying 	duties 	and 	receives 	an
2 A drawback occurs when “a producer normally pays input
duties on a manufacturing input but receives some type of
duty rebate or exemption for exporting goods containing
that input to the United States.” Remand Op. at 6, 2024
WL 2044061, at *2. In such cases, “Commerce must adjust
the constructed export price to factor in the forgiven du-
ties.” Id. (citing 19 U.S.C. § 1677a(c)(1)(B)).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 4 of 28

Consol. Ct. No. 21-00616 	Page 5
“inward processing certificate.” 3 Id. It must then ex-
port a set quantity of goods within a set time to “close”
the certificate and avoid duty liability, though it can
also receive the benefit later if it meets the quantity
requirement and pays a late fee. Id.
In its original decision, Commerce “calculated the
per-unit duty drawback adjustment using as the nu-
merator exempted import duties associated with sub-
ject exports and using as the denominator the total
quantity of all U.S. database sales.” Appx132. It “then
applied the per-unit amount to all U.S. database sales,
effectuating an adjustment to each sale regardless of
whether it was associated with the closed” certificate.
Id.
On 	remand, 	the 	agency 	changed 	course. 	It 	ex-
plained that “because the purpose and scope of the ad-
justment to [the] U.S. price described in [19 U.S.C.
§ 1677a(c)(1)(B) 4 ] pertain to subject merchandise, the
3 Using case-specific jargon when plain English would do
just fine, the parties for no good reason insist on calling the
certificates “IPCs.” Cf. Giorgio Foods, Inc. v. United States,
Slip Op. 24-79, at 6 n.5, 2024 WL 3534491, at *2 n.5 (CIT
2024) (admonishing the parties for “adopting agency bu-
reaucratese” and unnecessarily using obscure acronyms
“not generally known by the trade bar, much less educated
lay readers”), appeal pending, No. 25-2090 (Fed. Cir.).
4 This provision states that “[t]he price used to establish
[the] export price and constructed export price shall be . . .
increased by. . . the amount of any import duties imposed
by the country of exportation which have been rebated, or
(footnote continues on next page)
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 5 of 28

Consol. Ct. No. 21-00616 	Page 6
basis of the duty drawback benefit should also be lim-
ited to import duties associated only with subject mer-
chandise.” Appx132. Therefore, it was “more appropri-
ate to use as the denominator the quantity of U.S. da-
tabase sales associated with the closed [certificate]
and apply that per-unit amount only to U.S. database
sales associated with the [same] closed [certificate].”
Appx132–133. This approach limited the drawback ad-
justment “only to the U.S. sales that were entitled to
the benefit.” Appx133. It also “maintained the corre-
spondence of values between the denominator and the
universe of U.S. sales to which the resultant per-unit
adjustment is applied.” Id. Finally, this methodology
was blessed by the court in Assan Aluminyum Sanayi
ve Ticaret A.S. v. United States, 701 F. Supp. 3d 1321
(CIT 2024) (Assan 2024). Id. 5
2
Assan observes that the Department’s “calculation
limits the drawback afforded to [the company] to only
which have not been collected, by reason of the exportation
of the subject merchandise to the United States.” 19 U.S.C.
§ 1677a(c)(1)(B).
5 Despite this case and Assan 2024 having identical names
and some overlap in issues, they concern different goods.
The latter action involved an antidumping investigation of
common alloy aluminum sheet from Turkey (Aluminum
Sheet), see Appx198 (second remand results in that pro-
ceeding), whereas this matter entails an antidumping in-
vestigation 	of 	aluminum 	foil 	from 	that 	country, 	see
Appx126 (remand results here).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 6 of 28

Consol. Ct. No. 21-00616 	Page 7
one” certificate, 6 even though it imported the products
in question under multiple certificates during the pe-
riod of investigation and all its U.S. sales were covered
by such documents. ECF 114, at 11. The agency’s ra-
tionale was that only one certificate closed during the
period of investigation. Id. It declined to assume that
certificates open in that time frame would ultimately
close. Id.
Assan contends that Commerce’s failure to so as-
sume that open certificates would ultimately close vi-
olates “19 U.S.C. § 1677a(c)(1)(B), which requires an
adjustment based on the ‘entire drawback.’୻” Id. (quot-
ing Uttam Galva Steels Ltd. v. United States, 997 F.3d
1192, 1198 (Fed. Cir. 2021)). But on this record—
which shows that only a single certificate closed dur-
ing 	the 	period 	of 	investigation 	or 	otherwise, 	see
ECF 113, at 11 (the company so acknowledging)—the
6 Assan denominated the word “one” in this phrase as con-
fidential and redacted it from its public comments. But the
court finds that the company waived this protection earlier
in that same submission. See ECF 114, at 2–3 (stating that
Commerce “limited its application of that adjustment to
only U.S. sales associated with a single [certificate], rather
than all U.S. sales during the period of investigation”) (em-
phasis added); see also 19 U.S.C. § 1516a(b)(2)(B) (provid-
ing that the court “shall . . . preserve[୻] in any action under
this section” the “confidential or privileged status accorded
to any documents, comments, or information,” except that
it “may disclose such material under such terms and con-
ditions as it may order”); cf. Fed. Cir. R. 25.1(c)(1) (“Mate-
rial will lose its status as subject to a protective order, how-
ever, if and when it . . . has appeared in a filing without
being marked confidential.”).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 7 of 28

Consol. Ct. No. 21-00616 	Page 8
Department’s adjustment was based on the “entire
drawback.” That’s because an open certificate “yields
no duty exemptions” during that time frame, and “in-
deed may never close at all.” Assan 2024, 701 F. Supp.
3d at 1329. The statute directs the agency “to predicate
drawback adjustments on the exemption of duties—
not a likelihood of future exemption through the con-
tingent operation of a foreign government’s duty ex-
emption scheme.” Id. 7
Assan alternatively contends that the Department
abused its discretion by denying the company’s re-
quest to reopen the record to allow evidence that some
certificates closed after the period of investigation.
ECF 114, at 12–17; see also ECF 124, at 5 (Assan reply
acknowledging that the agency “has discretion in this
area”). It points to what it characterizes as “Com-
merce’s disparate treatment of Assan’s” certificates in
this case and on remand in Aluminum Sheet. ECF 114,
at 12.
In the latter, the agency “re-opened the record to
request additional information necessary for purposes
of calculating Assan’s duty 	drawback 	adjustment.”
7 Assan’s argument also attempts to circumvent the Re-
mand Opinion. As noted above, the court sustained the De-
partment’s practice of offsetting any drawback adjustment
by the amount of any late fees Assan paid as a prerequisite
to closing the certificate. See Remand Op. at 24–27, 2024
WL 2044061, at *9. If a company owes a late fee and fails
to pay, it gets no drawback for exports under that certifi-
cate. Assuming that all certificates will close would effec-
tively eliminate the late-fee offset.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 8 of 28

Consol. Ct. No. 21-00616 	Page 9
Appx198. As a result of that reopening, the Depart-
ment opted to use certificates that closed outside the
period of investigation for calculating a drawback ad-
justment “when sufficient evidence exists on the [re-
opened] 	record 	to 	demonstrate 	their 	closure.”
Appx201. But here, according to the company, “Com-
merce did not allow Assan the same opportunity to
submit closure documentation.” ECF 114, at 13.
The agency gave three reasons for not doing so.
First, the court did not order it. Appx147. Second, un-
like in Aluminum Sheet, nothing was missing that re-
quired reopening. Id.; Appx150 & n.91. Finally, in its
CIT complaint, “Assan did not preserve any argu-
ments with respect to the data Commerce employed.”
Appx147–148.
The government harps on this last preservation
point, 	noting 	that 	the 	company’s 	challenge 	to 	the
agency’s refusal to reopen the record fails to acknow-
ledge, much less contest, it. See ECF 118, at 15–16. On
reply, Assan again sidesteps the preservation issue in
its 	discussion 	of 	the 	drawback 	adjustment. 	See
ECF 124, at 4–7.
An interested party challenging agency action does
not have the luxury of ignoring stated reasons for the
disputed 	decision. 	Commerce’s 	redetermination 	“is
presumed to be correct,” 28 U.S.C. § 2639(a)(1), and
Assan has the “burden of proving otherwise,” id. The
company having failed to contest the Department’s
preservation rationale for not reopening the record,
the 	court 	sustains 	that 	decision. 	Cf. 	KYD, 	Inc. 	v.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 9 of 28

Consol. Ct. No. 21-00616 	Page 10
United States, 836 F. Supp. 2d 1410, 1414 (CIT 2012)
(“[A]ll claims, arguments, and objections that [a plain-
tiff has] elected not to address in its post-remand
briefs must be deemed waived.”) (brackets in original)
(quoting Bond St., Ltd. v. United States, 774 F. Supp.
2d 1251, 1261 (CIT 2011)). It is therefore unnecessary
for the court to consider the company’s challenge to the
Department’s other reasons for not reopening the rec-
ord. 8
B
1
Assan’s aluminum raw material costs contain two
components, the market price for that commodity on
the London Metal Exchange and a “raw material pre-
mium.” Remand Op. at 13, 2024 WL 2044061, at *5.
The latter is an adjustment to the former price that
reflects the form of the aluminum input—either scrap,
sheet, 	or 	primary 	aluminum. 	Id. 	The 	adjustment
might be negative, as in the case of scrap, but that “is
8 Assan also complains in passing that Commerce struck
portions of its drawback adjustment comments on the
agency’s draft remand results. ECF 114, at 14 n.1. The
company makes no effort to develop the argument beyond
stating that it “disagrees with and objects to” the striking.
Id. It has therefore waived this point as well. “Litigants
must provide meat on the bones of their arguments if they
expect the court to seriously entertain them.” Home Ortho-
pedics Corp. v. Rodriguez, 781 F.3d 521, 528 (1st Cir. 2015)
(cleaned up); Green Farms Seafood Joint Stock Co. v.
United States, Slip Op. 25-89, at 5, 2025 WL 1905115, at *3
(CIT 2025) (citing Rodriguez for that point).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 10 of 28

Consol. Ct. No. 21-00616 	Page 11
offset by higher labor and overhead costs necessitated
by the additional manufacturing when more scrap is
used.” ECF 114, at 20. Conversely, a positive premium
for sheet aluminum raises the input cost above the
London exchange price but reduces ensuing manufac-
turing costs because less effort is necessary to make
foil. Id. “Thus”—as the agency explained on remand—
the “aluminum premium cost is closely linked to the
[London exchange] portion of the raw material cost.”
Appx138 (emphasis added).
In its original decision, Commerce departed from
Assan’s reported costs for the London market price
and instead used a weighted average “to eliminate dis-
tortions caused by changing aluminum prices through-
out the period of investigation.” Remand Op. at 14,
2024 WL 2044061, at *5. The company agreed with
this approach. Id. For the premium adjustment, the
Department similarly used a weighted average, but
Assan objected. Id. The court returned the matter to
the agency because the latter failed to address the
company’s argument that it instead “should look at the
total cost of manufacturing, not just the raw material
costs.” Id. at 28, 2024 WL 2044061, at *10.
On remand, Commerce stated that it “required As-
san to report the physical characteristics of its prod-
ucts (i.e., gauge, coating, width, casting method, alloy,
temper, and surface finish).” Appx134. “[T]hese physi-
cal characteristics differentiate the production costs
between distinct, unique product control numbers.” Id.
Under 	the 	statute, 	“a 	respondent’s 	reported 	costs
should reflect meaningful cost differences attributable
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 11 of 28

Consol. Ct. No. 21-00616 	Page 12
to these different physical characteristics.” Id. “This
approach ensures” that the control number–specific
costs the agency “uses for the test of sales made below
cost . . . accurately reflect the physical characteristics
of the products used in Commerce’s margin calcula-
tions.” Id. The agency thus “normally does not rely on
a respondent’s reported costs where cost differentials
between [control numbers] are driven by factors other
than the difference in the physical characteristics.” Id.
(emphasis added).
With that background, the Department addressed
Assan’s contention that it should base its analysis of
the premium cost differential between control num-
bers on total costs of manufacturing rather than ma-
terial costs. Appx137. Following this approach would
not allow Commerce to “isolate the cost differences as-
sociated with the relevant product physical character-
istic from the cost differences associated with” other
factors. Id.
To determine what drove Assan’s premium cost dif-
ferentials, Commerce instead compared the specific
cost for each control number—“i.e., the sum of” the
control number–specific London exchange cost and the
premium cost, Appx153—to the period-of-investiga-
tion weighted average raw material cost, id. It “re-
flected the significant cost differences” between con-
trol numbers “that are unrelated to the product’s phys-
ical characteristics.” Id. Thus, the Department “con-
tinue[d] to disagree with Assan that its books and rec-
ords 	‘reasonably 	reflect 	the 	cost 	to 	produce 	the
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 12 of 28

Consol. Ct. No. 21-00616 	Page 13
merchandise under consideration based on the physi-
cal characteristics’ identified by” the agency. Id.
Commerce also disagreed with Assan that it “only
considered the physical differences for the finished
products and did not adequately address the differ-
ences 	in 	raw 	materials 	used 	to 	produce” 	them.
Appx154. The Department observed that it asked the
company about the raw material inputs used, includ-
ing whether they were interchangeable and what fac-
tors the company relied on to decide which to use for a
finished product. Assan replied that while all raw ma-
terial types can be used interchangeably to produce
the aluminum foil at issue, it decides which one to use
based on its “preferred production routing due to cer-
tain characteristics of its production equipment.” Id.
Commerce weighed this evidence as meaning that ex-
cept for production yield losses, differences in the raw
material cost between control numbers were based on
factors other than the product’s physical characteris-
tics. Id.
As for those yield losses, the Department asked the
company to identify and separately report the costs as-
sociated with them for each control number using the
figures 	in 	its 	database, 	but 	Assan 	did 	not 	do 	so.
Appx154–155. The agency found that the company
could have complied, though doing so “would require
some effort.” Appx155. “Assan, however, made no at-
tempt to provide Commerce with” the requested break-
down, “and thus, this information to calculate product-
specific yield losses is not available on the record.” Id.
Therefore, 	the 	Department 	continued 	“to 	weight
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 13 of 28

Consol. Ct. No. 21-00616 	Page 14
average the reported [raw material premium] cost for
all [control numbers] to mitigate the cost differences
unrelated to the physical characteristics.” Appx155.
2
Assan challenges Commerce’s treatment of the raw
material premiums. It first argues that the Depart-
ment did not adequately address its argument that
there is an inverse relationship between its raw mate-
rial premium costs and its production costs. ECF 114,
at 17–18. It characterizes the agency’s dismissal of the
subject—that 	“fabrication 	costs 	are 	not 	associated
with the reported raw material costs,” Appx137—as
“conclusory.” ECF 114, at 18.
But the Department was not conclusory (a mortal
administrative law sin)—it was just clumsy (a venial
sin). The sentence in question concluded a paragraph
in which the agency explained that it seeks to “isolate
the cost differences associated with the relevant prod-
uct physical characteristic from the cost differences as-
sociated with” other factors. Appx137. Assan’s request
that the agency base its analysis on total manufactur-
ing costs would not allow it to do so. Id. Read in context
with the remainder of the paragraph and other parts
of the redetermination, cf. Bowman Transp., Inc. v.
Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)
(the court “will uphold a decision of less than ideal
clarity if the agency’s path may reasonably be dis-
cerned”), 	it’s 	apparent 	that 	Commerce 	determined
that Assan’s reported premium costs “reflected . . . cost
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 14 of 28

Consol. Ct. No. 21-00616 	Page 15
differences unrelated to the product’s physical charac-
teristics.” Appx139 (emphasis added). 9
The company then pivots to attack that finding, the
heart of its dispute with the agency. See ECF 114,
at 18–20. It zeroes in on the Department’s basing its
calculation on “the sum” of premium costs and the
London exchange costs for aluminum inputs. Id. at 18
(emphasis in original). It argues that “[t]rends in the
sum” of these two addends are driven by the latter. Id.
at 19 (emphasis in original). Consequently, this total
“cannot be used to support Commerce’s conclusion that
‘the reported raw material costs . . . reflected the sig-
nificant cost differences between [control numbers]
that are unrelated to the product’s physical character-
istics.’୻” Id. (ellipsis in original).
According to Assan, the agency’s rationale for its
approach—that premium costs and the London ex-
change costs are “closely linked,” Appx138, is flawed.
That’s because the latter are “subject to significant
fluctuations from month to month” and are “not impac-
9 As the government points out, Assan’s contention that the
agency did not sufficiently address its argument that the
differences in its input types drove its production costs also
“confuses the physical characteristics of the input products
with the physical characteristics of the final finished prod-
ucts.” ECF 118, at 24. The Department reasonably found
that because the company’s inputs were interchangeable,
the differences in the raw material costs between control
numbers were based on factors other than the product’s
physical characteristics. Appx154.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 15 of 28

Consol. Ct. No. 21-00616 	Page 16
ted by yield loss.” ECF 114, at 20. The former, how-
ever, are not so impacted. Id.
But Assan does not dispute Commerce’s premise—
that the two costs are closely linked. That finding is
reasonable, as the premium cost is simply an adjust-
ment to the fluctuating London exchange price, the
baseline. Remand Op. at 13, 2024 WL 2044061, at *5.
Given this linkage, substantial evidence supports the
Department’s conclusion that “the significant cost dif-
ferences” between control numbers “are unrelated to
the product’s physical characteristics.” Appx153. 10
Assan also takes issue with Commerce’s finding
that the company did not, as requested, identify and
separately report its costs for each control number us-
ing the figures in its database. Appx154–155; ECF
114, at 21–23. It accuses the Department of “specu-
lat[ing]” that it could have reported its figures in the
requested way. ECF 114, at 21. It contends that it “is
unable to include the separate fields” because its ac-
counting software does not allow for it. Id. It then ar-
gues that the data it provided were sufficient. Id. at 22.
In its original determination, the agency explained
that it asked the company to “identify and separately
report the costs associated with yield losses for each”
control number by breaking out the associated raw
10 Commerce supported this conclusion with a detailed
analysis that Assan does not challenge. See Appx89022–
89023, Appx89027–89033. This reasoning is thus “pre-
sumed to be correct.” 28 U.S.C. § 2639(a)(1).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 16 of 28

Consol. Ct. No. 21-00616 	Page 17
material premium costs. Appx007651. It rejected the
company’s claim about its software: “A large, sophisti-
cated company like Assan can reasonably determine
[control number–]specific yield losses and the related
costs embedded in the [raw material premium] field
regardless [of] any limitations in its accounting sys-
tem. . . . Assan, however, made no attempt to provide
Commerce with” the requested breakdown. Id. The
agency therefore found that necessary 	information
was missing from the record and, invoking 19 U.S.C.
§ 1677e(a)(1), stated that it would resort to facts oth-
erwise available to fill the gap in the record, which it
elected to do by weight-averaging the reported raw
material premium costs for all control numbers. Id.
The remand determination was less specific in that
it neither referred to facts otherwise available nor in-
voked § 1677e. In substance, however, it echoed the
original determination. As before, it observed that re-
spondents often face accounting system limitations
but still report information in the manner requested.
Compare 	Appx155 	(redetermination) 	with
Appx007651 (original determination). Also as before,
it stated that Assan could have provided the requested
information with “some effort” but opted not to do so,
and it affirmed that the “requested information was
necessary” but was “not available on the record.” Com-
pare Appx155 with Appx007651. “For these reasons,
[Commerce] continue[d] on remand to weight average
the reported [raw material premium] cost for all [con-
trol numbers] to mitigate the cost differences unre-
lated 	to 	the 	product 	physical 	characteristics.”
Appx155; cf. Appx007651 (referring to that action as a
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 17 of 28

Consol. Ct. No. 21-00616 	Page 18
form of facts otherwise available). It’s thus readily ap-
parent that the agency again applied facts otherwise
available. Cf. Bowman, 419 U.S. at 286 (the court “will
uphold a decision 	of less than 	ideal 	clarity if the
agency’s path may reasonably be discerned”).
A respondent must report data in the form and
manner Commerce requests unless the party asks for,
and receives, advance permission to do otherwise. See
19 U.S.C. § 1677m(c)(1) (requiring that such a request
be supported by a statement of reasons why the party
cannot comply with the requirements and a suggestion
of an alternative mechanism). Assan cites nothing in
the administrative record to establish that it made
such a request in advance here—instead, it simply
cites questionnaire responses in which it said it was
impossible to comply. See Appx006766. The court thus
can neither consider its argument about what infor-
mation it had available nor second-guess the Depart-
ment’s conclusion that the company could have pro-
vided the requested data. See Hung Vuong Corp. v.
United States, 483 F. Supp. 3d 1321, 1361 & n.41 (CIT
2020) (recognizing that the decision “to deem [an] al-
ternative format acceptable. . . . is not the Court’s to
make”). The court therefore sustains Commerce’s han-
dling of the raw material premiums as a reasonable
application of facts otherwise available.
* 	* 	*
The court sustains the agency’s redetermination in
Case 	21-616. 	Notwithstanding 	the 	consolidation 	of
that action with Case 21-618, which is not yet final for
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 18 of 28

Consol. Ct. No. 21-00616 	Page 19
reasons explained below, the court will immediately
enter judgment in the former. That’s because “[i]t is of
great importance in litigation to know precisely . . .
when [judgment] was entered.” 11 Wright & Miller,
Federal Practice and Procedure § 2781 (3d ed. Sept.
2025 update). 11
11 Federal Rule of Civil Procedure 42(a)—and by extension,
USCIT Rule 42(a), under which these actions were consol-
idated—“did not purport to alter the settled understanding
of the consequences of consolidation. That understanding
makes clear that when one of several consolidated cases is
finally decided, a disappointed litigant is free to seek re-
view of that decision in the court of appeals.” Hall v. Hall,
584 U.S. 59, 78 (2018). For that reason, “separate verdicts
and judgments are normally necessary.” Id. at 76 (quoting
3 J. Moore & J. Friedman, Moore’s Federal Practice § 42.01,
at 3051 n.12 (1938)). Consolidation thus does not obviate
the necessity for the “prompt entry of judgment” contem-
plated by Rule 58. Wright & Miller § 2781.
Were the court to fail to enter judgment in Case 21-616
now, it would enter silently in the background by operation
of law in 150 days, even if Case 21-618 remained nonfinal.
See USCIT R. 58(c)(2)(B). The 60-day period to appeal
would then start to run—again silently, in the background.
Thus, a disappointed litigant in one of several consolidated
cases that waits until the court enters a single judgment
finally disposing of all such actions risks forfeiting its ap-
peal rights. The prompt entry of separate judgments as
constituent cases become final in consolidated litigation
unequivocally signals that the time to appeal has started
to run and avoids creating an appellate jurisdictional trap
for the unwary.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 19 of 28

Consol. Ct. No. 21-00616 	Page 20
III
A
In the remand results, the Department explained
that Assan routinely makes hedging transactions to
eliminate the risk of fluctuations in the cost of the alu-
minum it buys to produce its foil. The company records
the hedging gains and losses in its books and records
as part of the cost of sales. When it reported its costs
of production during the antidumping investigation, it
reduced its reported total cost of manufacturing by the
net hedging gains. Commerce’s original decision ac-
cepted that reporting but adjusted the net gains “to ac-
count for the timing difference related to the pur-
chases of aluminum input and the settlement of the
associated commodity hedging contract.” Appx139–
140.
The Association objected that because Assan makes
the hedging transactions after it buys the raw materi-
als, the gains relate to the finished products’ sales
prices and not to the raw materials’ purchase prices.
Therefore, it said, the agency should not have allowed
the net hedging gains to offset the cost of manufactur-
ing because they were unrelated to the cost of produc-
tion. Appx140. The court remanded for further expla-
nation after counsel’s statements at oral argument
suggested the hedging may be related to sales as the
Association contended. Id.
On remand, Commerce didn’t budge. It noted, as it
did with the raw material premium, that the statute
requires the agency to use the company’s normal books
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 20 of 28

Consol. Ct. No. 21-00616 	Page 21
and records if they comply with Turkish accounting
practices and they reasonably reflect the costs associ-
ated with production and sale. The Department again
determined that Assan’s records satisfied the first cri-
terion, so the question was whether including the net
hedging gains in the cost of production reasonably re-
flected what it cost to make the aluminum foil at issue.
Appx142–143.
The agency found that when the company pur-
chases the aluminum raw material, it enters into a
hedging contract to sell a similar quantity of metal in
the future, and when it does the latter, it closes the
hedging contracts by “reversing its position in the com-
modities market.” Appx143. Commerce concluded that
the sum of the gain or loss on the commodities hedging
contracts and the raw material purchases that trigger
them represent Assan’s total net raw material costs
incurred to produce the aluminum foil at issue. Id. It
observed 	that 	the 	records 	the 	company 	provided
showed that the monthly hedge quantities were very
close to its monthly raw material quantities, which it
found 	indicative 	of 	a 	linkage 	between 	the 	two.
Appx143–144. “When viewed from this perspective,” it
seemed “that Assan’s hedging activities are to mitigate
the risk of fluctuation of raw material costs which will
be consumed in the production of merchandise under
consideration, and that they are properly considered
as part of the” cost of manufacturing. Appx144. The
Department found it insignificant that the hedging
transactions take place after the raw material pur-
chases. Id.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 21 of 28

Consol. Ct. No. 21-00616 	Page 22
A further issue involved Assan’s use of “mark-to-
market accounting,” which Commerce described as an
accounting method used to ensure that the assets and
liabilities listed on a company’s balance sheet at a par-
ticular time reflect fair market value at that same
time. Id. Assan assessed the current value of both its
physical inventory on hand and its open hedging con-
tracts at the end of the period of investigation using
mark-to-market accounting to ensure consistency with
International Financial Reporting Standards require-
ments. Id. The company maintained two specific ac-
counts to record adjustments required by those stand-
ards, and the Department found that the adjustments
reflected the value of the London exchange portion of
the physical inventory and the value of open exchange
hedge contracts at the time when the financial state-
ments were prepared. Appx141.
Commerce 	concluded 	that 	Assan 	calculates 	the
value of the exchange portion of its inventory when it
prepares its financial statements—if the market value
is higher than the cost, it records a gain; if the value is
lower, it records a loss. “Thus, the gains and losses rec-
orded in those two accounts . . . are purely related to
the inventory valuation gains and losses under the [In-
ternational Standards] and they are not generated
from actual hedging transactions.” Appx142. The De-
partment also found that the adjustments resulting
from mark-to-market accounting were different from
the net hedging gains associated with closed hedging
contracts on inventory consumed during the period of
investigation—instead, they reflected the value of in-
ventory remaining on the balance sheets at the end of
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 22 of 28

Consol. Ct. No. 21-00616 	Page 23
that period. Appx144–145. It therefore determined
that the gains on the mark-to-market inventory repre-
sent a valuation adjustment for Assan’s inventory to
reflect fair market value, and it stood by its original
conclusion that including the gains in the cost-of-pro-
duction calculation was reasonable. Appx145. Finally,
it also noted that this result was consistent with its
analysis in the Aluminum Sheet proceeding involving
Assan. Id.
B
The Association now challenges Commerce’s deci-
sion on the hedging issue. It observes that the court
found 	that 	the 	agency’s 	original 	determination
“rest[ed] on the rejection of claims that [the agency
and the company] now concede are at least partially
correct,” 	Remand 	Op. 	at 	37, 	2024 	WL 	2044061,
at *13—specifically, that Assan’s hedging transactions
are, in some way, related to its sales of finished goods.
ECF 117, at 2. It cites its comments on the draft re-
mand results, id., which contended that the Depart-
ment failed to address those concessions, Appx108.
Those comments also argued that the agency did not
explain “why Assan would attempt to manage the alu-
minum price risk associated with its raw material pur-
chases, but completely ignore the aluminum price risk
associated with its sale of finished goods or its inven-
tory.” Appx109. They asserted that the “only reasona-
ble 	inference” 	is 	that 	the 	company’s 	hedging 	is 	a
means of managing its overall price risk from both raw
material purchases and sales of finished goods, such
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 23 of 28

Consol. Ct. No. 21-00616 	Page 24
that the transactions “are financial in nature and the
associated gains belong in interest expenses.” Id.
The Association maintains that Commerce “dis-
missed” its arguments on the ground that Assan rec-
orded its net hedging gains as part of the cost of goods
sold 	on 	its 	audited 	income 	statement, 	which 	the
agency said it had a statutory obligation to accept.
ECF 	117, 	at 	4 	(citing 	Appx159 	and 	19 	U.S.C.
§ 1677b(f)(1)(A)). The group contends that the income
statement is only one part of the company’s books and
records, along with the audited cash flow statement,
and the agency did not explain why it deemed the for-
mer more authoritative than the latter. Id. at 4–5. The
sealed version of the comments the Association sub-
mitted to the agency essentially argued that Assan
classified the hedging transactions differently in its
cash flow statement than it did in its income state-
ment. See Appx93279–93280.
Neither the government nor the company meaning-
fully responds to that point. To be sure, Assan con-
tends that it is irrelevant. The company asserts that
(1) its “net hedging gains and losses are recorded as a
part of cost of goods sold in [its] audited financial state-
ments,” ECF 124, at 16–17, (2) the company’s auditor
approved that reporting, id. at 17, and (3) “Commerce
must ‘calculate costs based on a respondent’s normal
books and records if they are kept in accordance with
home country GAAP and reasonably reflect the costs
associated with the production and sale of the mer-
chandise,’” id. at 17–18 (emphasis in original) (quoting
Appx142). Therefore, Assan contends, the agency was
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 24 of 28

Consol. Ct. No. 21-00616 	Page 25
obligated to do so here because the income statement
satisfied those criteria. Id. But that does not respond
to the Association’s argument that both the audited in-
come statement on which the Department relied and
the audited cash flow statement it did not consider are
part of the company’s “normal books and records.” Nei-
ther the company nor the government addresses what
happens when such books and records are internally
inconsistent. 12
Rather than coming to grips with that point, they
both echo the statement the Department made in the
remand results that “the possibility of drawing two in-
consistent conclusions from the record evidence does
not prevent Commerce’s finding from being supported
by substantial evidence.” Appx141; see also ECF 118,
at 27–28 (government, claiming the court must sus-
tain 	as 	long 	as 	substantial 	evidence 	supports 	the
agency’s position); ECF 124, at 16–18 (the company,
12 Similarly, in “disagree[ing] with the Aluminum Associa-
tion that the net hedging gains should be included in the
interest expense calculation because of how the hedging
transactions are presented in Assan’s cash flow state-
ment,” Commerce again emphasized the words “audited in-
come statement.” It said the statute requires it to rely on
the company’s normal books and records if they satisfy the
two statutory criteria. Appx159–160. That explanation
fails to address whether the audited cash flow statement is
also part of the books and records and whether it meets the
statute’s requirements.
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 25 of 28

Consol. Ct. No. 21-00616 	Page 26
making the argument summarized above). 13 But, in
remanding, the court observed that while that state-
ment is accurate as a general matter, “this feature of
the substantial evidence standard still requires [the
agency’s] explanation be supported by substantial evi-
dence.” Remand Op. at 37, 2024 WL 2044061, at *13
(emphasis in original).
If, as here, a party contends that another part of the
record contradicts the portion on which Commerce
chooses to rely, it is not enough for the Department
simply to say that its chosen document supports its
conclusion. It must also give a meaningful explanation
for why it finds the other part of the record unconvinc-
ing or less persuasive because “[t]he substantiality of
evidence must take into account whatever in the rec-
ord fairly detracts from its weight.” CS Wind Vietnam
Co. v. United States, 832 F.3d 1367, 1373 (Fed. Cir.
2016). By failing to respond to the Association’s claim
that other record evidence contradicts the document
on which it elected to rely, Commerce has “failed to
consider an important aspect of the problem.” 14 Motor
13 The company essentially reargues the same theory it ad-
vocated prior to remand. See Remand Op. at 36, 2024 WL
2044061, at *13 (“Assan’s argument rests on the fact that
the substantial evidence standard allows Commerce to
choose between multiple options when the record supports
either.”).
14 The Department did mention the point in passing but
then waved it away by emphasizing that it was relying on
Assan’s “audited income statement” and citing the statu-
tory command to accept such records if they satisfy the
(footnote continues on next page)
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 26 of 28

Consol. Ct. No. 21-00616 	Page 27
Veh. Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983).
The agency did say, without elaboration, that its
“preference” is to use “a respondent’s audited income
statement.” Appx157 (emphasis in original). Because
the statute requires the Department to “consider all
available evidence on the proper allocation of costs,”
19 U.S.C. § 1677b(f)(1)(A) (emphasis added), a regula-
tory “preference” is not a substantive rule of decision.
Rather, 	it 	is 	at 	best 	a 	tiebreaker 	when 	potential
sources the agency must consider are otherwise equal.
Cf. Catfish Farmers of Am. v. United States, Slip Op.
24-67, at 14, 2024 WL 2843039, at *5 (CIT 2024) (mak-
ing this point in the context of a statutory requirement
to use “the best available information”). An agency’s
“preference” does not answer the question of whether
another financial document in the record might be
more accurate than the one Commerce “prefers,” as-
suming the other document also satisfies the statutory
criteria for relying on “books and records.” And failing
even to address whether potentially contradictory rec-
ord evidence cited by a party satisfies those factors vi-
olates the statutory command to consider “all avail-
statutory criteria. Appx159–160 (emphasis in original). Re-
gardless of the agency’s use of emphasis, its assertion does
not respond to the Association’s argument that the “au-
dited cash flow statement” treated the same sorts of trans-
actions differently. See ECF 117, at 4 (“The Department
has not explained why Assan’s audited income statement
is more authoritative than [its] audited cash flow state-
ment.”).
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 27 of 28

Consol. Ct. No. 21-00616 	Page 28
able evidence.” 19 U.S.C. § 1677b(f)(1)(A). The court
must therefore remand Case 21-618 for the agency to
further explain its reasoning in view of the statute’s
requirements.
Dated: February 18, 2026 	/s/ M. Miller Baker
New York, NY 	Judge
Case 1:21-cv-00618-MMB Document 35 Filed 02/23/26 Page 28 of 28