US Magnesium LLC v. United States

Slip Op. 13-
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Nicholas Tsoucalas, Senior Judge
___________________________________
US MAGNESIUM LLC, 	:
:
Plaintiff, 	:
:
v. 	: 	Court No.: 12-00006
:
UNITED STATES, 	:
: 	PUBLIC VERSION
Defendant, 	:
:
and 	:
:
TIANJIN MAGNESIUM 	:
INTERNATIONAL CO., LTD., 	:
:
Defendant-Intervenor. 	:
:
OPINION and ORDER
Held: 	Plaintiff’s 	motion 	is 	granted 	in 	part 	so 	that 	Commerce 	may
reconsider 	its 	decision 	not 	to 	extend 	the 	deadline 	for 	USM’s
untimely 	submission 	as 	well 	as 	the 	surrogate 	values 	for 	labor,
financial ratios, and truck freight rates. 	Plaintiff’s motion is
denied 	with 	regard 	to 	TMI’s 	U.S. 	expenses. 	The 	court 	defers
judgment on the issue of retort classification so that Commerce may
reconsider its determination following its analysis of the untimely
submission on remand.
Dated: January 22, 2013
King & Spalding LLP, (Stephen A. Jones and Jeffery B. Denning)
for US Magnesium LLC, Plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Jeanne E.
Davidson, Director, Claudia Burke, Assistant Director, Commercial
Litigation 	Branch, 	Civil 	Division, 	United 	States 	Department 	of
Justice 	(Renee 	Gerber 	and 	Ryan 	M. 	Majerus); 	Office 	of 	the 	Chief
Counsel 	for 	Import 	Administration, 	United 	States 	Department 	of
Commerce, 	Melissa 	M. 	Brewer, 	Of 	Counsel, 	for 	the 	United 	States,
Defendant.
Riggle & Craven, (David A. Riggle, Saichang Xu, and David J.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 1 of 25

Court No. 12-00006 	Page 2
Craven) for Tianjin Magnesium International Co., Ltd., 	Defendant-
Intervenor.
TSOUCALAS, 	Senior 	Judge: 	Plaintiff 	US 	Magnesium 	LLC 	(“USM”)
moves 	for 	judgment 	on 	the 	agency 	record 	challenging 	the
determination by the 	Department of Commerce, International Trade
Administration 	(“Commerce”) 	in 	Pure 	Magnesium 	From 	the 	People’s
Republic of China: Final Results of the 2009–2010 Antidumping Duty
Administrative Review of the Antidumping Duty Order, 76 Fed. Reg.
76,945 	(Dec. 	9, 	2011) 	I.A. 	Access 	Public 	Rec. 	31 	(“Final
Results”). 1 	Commerce 	and 	defendant-intervenor 	Tianjin 	Magnesium
International Co., Ltd. (“TMI”) oppose USM’s motion.
Background
The 	administrative 	review 	at 	issue 	concerns 	pure 	magnesium
TMI imported from the People’s Republic of China (“PRC”) during the
period of review (“POR”) beginning May 1, 2009 and ending April 30,
2010. 	See id. at 76,945. 	TMI imports pure magnesium supplied 	by
a sole producer, [[
]]. 	P.R. 13 at 11. 	[[ 	]] produces pure magnesium
via 	the 	“Pidgeon” 	process. 	Under 	the 	“Pidgeon” 	process, 	the
producer 	first 	treats 	magnesium-bearing 	dolomite 	in 	a 	kiln 	to
produce 	calcined 	dolomite. 	The 	producer 	then 	mixes 	the 	calcined
1 	Hereinafter all documents in the public record will be
designated 	“P.R.” 	and 	all 	documents 	in 	the 	confidential 	record
designated 	“C.R.” 	without 	further 	specification 	except 	where
relevant. 	Additionally, 	the 	abbreviation 	“I.A.” 	will 	refer 	to
portions of the confidential and public records filed in Commerce’s
electronic filing system, I.A. Access.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 2 of 25

Court No. 12-00006 	Page 3
dolomite 	with 	ferrosilicon 	and 	fluorite 	power 	and 	presses 	the
mixture into balls or briquettes. 	In order to purify the magnesium
— chemically and physically separate it from the other inputs — the
producer places the pressed mixture into retorts, which are “steel
tubes placed under a vacuum in a furnace.” 	Def.’s Opp. Pl.’s Mot.
J. Agency R. at 5 (“Def.’s Br.”). 	The high heat from the furnace
vaporizes the magnesium, which travels through the retort and then
“condense[s] 	into 	a 	highly 	purified 	form.” 	Id. 	at 	5; 	See 	Pure
Magnesium 	from 	the 	PRC: 	Issues 	and 	Decision 	Memorandum 	for 	the
Final 	Results 	of 	the 	2009–2010 	Administrative 	Review 	at 	7 	n.39,
Inv. No. A-570-832 (Dec. 5, 2011) (“I&D Memo”). 	TMI reported that
[[ 	]] rented retorts during the POR. 	See P.R. 45 at 7.
TMI 	also 	reported 	that 	Mr. 	James 	Gammons 	performed 	certain
“ministerial activities” in the U.S. on behalf of TMI. 	P.R. 61 at
3. 	The “activities” focused on [[
]].” 	Id. 	TMI claimed that “Mr. Gammons was not a sales agent
for TMI” and that he did not take possession of subject merchandise
in the U.S. prior to sales to U.S. customers. 	Id.
During 	the 	review, 	Commerce 	used 	its 	nonmarket 	economy 2
2 	“The 	term 	‘nonmarket 	economy 	country’ 	means 	any 	foreign
country 	that 	the 	administering 	authority 	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.” 	Section 771(18) of the Tariff Act of 1930, as
amended, 19 U.S.C. § 1677(18) (2006). 	All further citations to the
Tariff 	Act 	of 	1930 	are 	to 	the 	relevant 	provisions 	of 	Title 	19 	of
the U.S. Code, 2006 edition.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 3 of 25

Court No. 12-00006 	Page 4
(“NME”) 	methodology 	to 	construct 	the 	normal 	value 3 	(“NV”), 	Pure
Magnesium 	from 	the 	PRC: 	Preliminary 	Results 	of 	the 	2009-2010
Antidumping Duty Administrative Review, 76 Fed. Reg. 33,194, 33,195
(June 	8, 	2011) 	(“Preliminary 	Results”), 	using 	surrogate 	data 	to
value 	the 	factors 	of 	production 	(“FOP”). 	See 	19 	U.S.C. 	§
1677b(c)(1). 	Commerce selected India as the surrogate country and
used Indian data to value TMI’s FOP. 	Preliminary Results, 76 Fed.
Reg. 	at 	33,195. 	Commerce 	classified 	retorts 	as 	an 	indirect
material rather than as a direct material, treating them as factory
overhead 	in 	the 	FOP 	calculation. 	P.R. 	64 	at 	9. 	Additionally,
Commerce determined that “the subject merchandise was sold directly
to the unaffiliated customers in the [U.S.] prior to importation.”
Preliminary Results, 76 Fed. Reg. at 33,196. 	Therefore, Commerce
concluded 	that 	all 	of 	TMI’s 	U.S. 	sales 	were 	export 	price 4 	(“EP”)
sales 	and 	did 	not 	calculate 	a 	separate 	constructed 	export 	price
(“CEP”) 5 for TMI’s U.S. sales. 	Id. 	Commerce did not adjust EP to
3 	“Normal 	value” 	is 	“the 	price 	at 	which 	the 	foreign 	like
product 	is 	first 	sold 	(or, 	in 	the 	absence 	of 	a 	sale, 	offered 	for
sale) 	for 	consumption 	in 	the 	exporting 	country.” 	19 	U.S.C. 	§
1677b(a)(1)(B)(i).
4 	“Export 	price” 	refers 	to 	“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).
5 “Constructed export price” refers to “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
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 4 of 25

Court No. 12-00006 	Page 5
reflect the expenses TMI incurred in association with services Mr.
James Gammons provided for TMI in the U.S. 	See I&D Memo at 3. 	On
June 	30, 	2010 	Commerce 	issued 	the 	preliminary 	results 	of 	the
review, assigning TMI a weighted average dumping margin of O.OO%.
Preliminary Results, 76 Fed. Reg. at 33,200.
On September 1, 2011, nearly eleven months after the October
19, 	2010 	deadline 	for 	the 	submission 	of 	new 	factual 	information,
USM submitted a Chinese magnesium industry bulletin which allegedly
indicated that [[ 	]] produced retorts during the POR rather
than rented them, as TMI reported. 	See I.A.P.R. 11 at 2. 	Commerce
rejected USM’s submission, concluding that “some of the documents
submitted by [USM] were clearly available prior to the deadline for
submission of factual information.” 	Id.
On 	December 	9, 	2011 	Commerce 	issued 	the 	Final 	Results. 	See
Final 	Results, 	76 	Fed. 	Reg. 	at 	76,945. 	Although 	Commerce 	made
certain changes to the margin calculation, it again assigned TMI a
weighted average dumping margin of 0.00%. 	Id. at 76,947.
JURISDICTION and STANDARD OF REVIEW
This 	Court 	has 	jurisdiction 	over 	this 	matter 	pursuant 	to 	19
U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C. § 1581(c).
This Court will uphold Commerce’s determination unless it is
“unsupported 	by 	substantial 	evidence 	on 	the 	record, 	or 	otherwise
account 	of 	the 	producer 	or 	exporter 	of 	such 	merchandise 	or 	by 	a
seller affiliated with the producer or exporter” to an unaffiliated
purchaser. 	19 U.S.C. § 1677a(b).
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 5 of 25

Court No. 12-00006 	Page 6
not 	in 	accordance 	with 	law.” 	19 	U.S.C. 	§ 	1516a(b)(1)(B)(i).
“Substantial 	evidence 	is 	‘such 	relevant 	evidence 	as 	a 	reasonable
mind might accept as adequate to support a conclusion.’” 	Huaiyin
Foreign 	Trade 	Corp. 	(30) 	v. 	United 	States, 	322 	F.3d 	1369, 	1374
(Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
DISCUSSION
USM 	argues 	that 	the 	Final 	Results 	are 	unsupported 	by
substantial evidence and are otherwise not in accord with the law
with 	respect 	to: 	Commerce’s 	classification 	of 	retorts 	as 	an
indirect material; the surrogate values used to calculate financial
ratios, 	labor 	rates, 	and 	truck 	freight 	rates; 	and 	Commerce’s
refusal 	to 	adjust 	the 	U.S. 	price 	to 	reflect 	movement 	expenses
associated with services Mr. James Gammons provided for TMI. 	See
Pl.’s 	Br. 	Supp. 	Mot. 	J. 	Agency 	R. 	at 	2–5 	(“Pl.’s 	Br.”).
Additionally, 	USM 	argues 	that 	Commerce 	abused 	its 	discretion 	by
rejecting USM’s untimely submission. 	Id. at 1–2. Commerce asks for
voluntary 	remand 	in 	order 	to 	reconsider 	the 	surrogate 	values 	for
labor and financial ratios, but opposes USM’s motion in all other
respects. 	See Def.’s Br. at 1–2.
I. USM’s Untimely Submission
During the review, TMI reported that [[ 	]] rented the
retorts it used in the production of pure magnesium during the POR
and that rental equipment was not treated as a direct expense for
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 6 of 25

Court No. 12-00006 	Page 7
accounting 	purposes 	in 	the 	PRC. 	See 	P.R. 	45 	at 	7. 	Commerce
classified 	retorts 	as 	an 	indirect 	material 	in 	the 	preliminary
results 	of 	the 	review. 	P.R. 	64 	at 	9. 	USM 	challenged 	that
determination before Commerce, P.R. 79 at 5–23, and on September 1,
2011, 	submitted 	a 	newly-discovered 	Chinese 	magnesium 	industry
bulletin 	which 	allegedly 	indicated 	that 	[[ 	]] 	produced
retorts during the POR. 	See I.A.P.R. 11 at 2. 	USM also submitted
two 	pieces 	of 	corroborating 	evidence, 	a 	2006 	magnesium 	industry
directory and a website USM alleges belongs to [[ 	]]. 	Id.
Although 	USM 	made 	the 	submission 	almost 	eleven 	months 	after 	the
deadline 	for 	submission 	of 	new 	factual 	information, 	it 	insisted
that 	Commerce 	place 	the 	submission 	on 	the 	record 	because 	it
allegedly 	demonstrated 	that 	TMI 	deliberately 	misled 	Commerce 	by
reporting that [[ 	]] rented retorts. 	Id. 	Commerce rejected
USM’s 	submission 	because 	the 	website 	and 	the 	2006 	directory 	were
“clearly available prior to the deadline for submission of factual
information.” 	Id. 	Commerce 	continued 	to 	classify 	retorts 	as 	an
indirect material in the Final Results. 	See I&D Memo at 6–9. USM
argues 	that 	Commerce 	abused 	its 	discretion 	because 	it 	failed 	to
address 	prima 	facie 	evidence 	of 	fraud 	contained 	in 	the 	untimely
submission. 6 	See Pl.’s Br. at 14–16.
6 USM also argues that Commerce abused its discretion because
the bulletin would have prevented a 20% understatement in the NV by
ensuring 	that 	Commerce 	properly 	classified 	retorts 	as 	a 	direct
material. 	Pl.’s Br. at 10–14. 	USM’s argument is unpersuasive as
the 	bulletin 	would 	not 	have 	negated 	Commerce’s 	retort
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 7 of 25

Court No. 12-00006 	Page 8
Commerce has the discretion to establish and enforce deadlines
for the submission of factual information. 	See Grobest, 36 CIT at
__, 	815 	F. 	Supp. 	2d 	at 	1365 	(citing 	NTN 	Bearing 	Corp. 	v. 	United
States, 	74 	F.3d 	1204, 	1206–07 	(Fed. 	Cir. 	1995)). 	Commerce 	may
extend such deadlines where it finds that there is “good cause” to
do 	so. 	19 	C.F.R. 	§ 	351.302(b) 	(2012). 	However, 	“Commerce’s
discretion in this regard is not absolute.” 	Grobest, 36 CIT at __,
815 F. Supp. 2d at 1365 (citing NTN Bearing, 74 F.3d at 1207). 	In
determining whether Commerce’s rejection of an untimely submission
amounts 	to 	an 	abuse 	of 	discretion, 	this 	Court 	considers 	“whether
the interests of accuracy and fairness outweigh the burden placed
on [Commerce] and the interest in finality.” 	Id.
Here, 	the 	court 	finds 	that 	Commerce 	abused 	its 	discretion
because 	it 	failed 	to 	address 	prima 	facie 	evidence 	of 	fraud 	USM
raised 	while 	the 	record 	was 	still 	open. 	Courts 	have 	clearly
indicated 	that 	prima 	facie 	evidence 	of 	fraud 	is 	to 	be 	treated
differently 	than 	other 	untimely 	submitted 	factual 	information,
allowing and even ordering consideration of such evidence after the
closure of administrative proceedings. 	See Home Prods. Int’l, Inc.
v. 	United 	States, 	633 	F.3d 	1369, 	1381 	(Fed. 	Cir. 	2011) 	(ordering
classification in and of itself, but would only be a factor in the
classification determination. 	Cf. Grobest & I-Mei Indus. (Vietnam)
Co. v. United States, 36 CIT __, __, 815 F. Supp. 2d 1342, 1366–67
(2012) 	(reversing 	Commerce’s 	decision 	to 	reject 	respondent’s
untimely submission of separate rate eligibility certification in
part because it directly contradicted Commerce’s decision to apply
Vietnam-wide rates to respondent).
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 8 of 25

Court No. 12-00006 	Page 9
remand where prima facie evidence of fraud was discovered after the
close of the administrative review); Tokyo Kikai Seisakusho, Ltd.
v. United States, 529 F.3d 1352, 1361 (Fed. Cir. 2008) (recognizing
that Commerce’s power to reconsider a determination is “even more
fundamental when . . . it is exercised to protect the integrity of
its 	own 	proceedings 	from 	fraud”); 	Tianjin 	Magnesium 	Int’l 	Co. 	v.
United 	States, 	36 	CIT 	__, 	__, 	836 	F. 	Supp. 	2d 	1377, 	1381 	(2012)
(Tsoucalas, Senior J.) (upholding Commerce’s decision to consider
prima facie evidence of fraud discovered during remand). 7
Here, 	USM 	discovered 	evidence 	that 	[[ 	]] 	produced
retorts after TMI reported that [[ 	]] rented retorts. 	See
I.A.P.R. 11 at 2. 	However, in dismissing USM submission, Commerce
limited 	its 	analysis 	to 	one 	factor: 	some 	of 	the 	documents 	were
available before the deadline. 	Id. 	Because of this single-minded
focus, 	Commerce 	overlooked 	the 	possibility 	that 	TMI 	deliberately
failed to report information to which it also clearly had access.
Prima facie evidence of fraud concerning proper classification of
FOP undermines the accuracy and fairness of a review. 	Grobest, 36
7 	In 	a 	recent 	case 	evidencing 	the 	courts’ 	treatment 	of
untimely 	discovered 	evidence 	of 	fraud, 	this 	Court 	granted
Commerce’s motion to expand the scope of an already ordered remand
to 	consider 	new 	evidence 	that 	a 	party 	provided 	false 	information
during 	the 	review. 	Ad 	Hoc 	Shrimp 	Trade 	Action 	Comm. 	v. 	United
States, 	37 	CIT 	__, 	__, 	Slip 	Op. 	13-4, 	at 	9 	(Jan. 	9, 	2013). 	The
Court 	held 	that 	Commerce 	provided 	compelling 	justification 	for
considering 	the 	untimely 	discovered 	evidence: 	there 	was
“information 	sufficient 	to 	persuade 	[Commerce] 	that 	its
determinations in the administrative review at issue may have been
based on information that was false or incomplete.” 	Id. at 8.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 9 of 25

Court No. 12-00006 	Page 10
CIT at __, 815 F. Supp. 2d at 1365. 	Commerce should have exercised
its authority to protect the review from fraud by addressing that
evidence in its analysis. 	Tokyo Kikai, 529 F.3d at 1361.
Additionally, 	the 	burden 	on 	Commerce 	and 	its 	interest 	in
finality 	are 	relatively 	minimal 	in 	the 	instant 	case. 	First, 	USM
submitted 	the 	information 	over 	two 	months 	before 	Commerce 	placed
information 	and 	new 	comments 	concerning 	the 	surrogate 	value 	for
truck 	freight 	onto 	the 	record 	and 	three 	months 	before 	Commerce
issued 	the 	Final 	Results.8 	See 	NTN 	Bearing, 	74 	F.3d 	at 	1208
(noting 	that 	because 	preliminary 	results 	are 	subject 	to 	change,
“the 	tension 	between 	finality 	and 	correctness 	simply 	[does] 	not
exist” 	during 	that 	stage). 	Second, 	USM 	presented 	the 	evidence
while the proceedings were still open and Commerce did not address
the apparent fraud in 	its determination. 	See I.A.P.R. 11 at 2. As
noted 	above, 	Courts 	approved 	and 	even 	ordered 	the 	reopening 	of
proceedings 	to 	consider 	prima 	facie 	evidence 	of 	fraud 	discovered
after the close of proceedings. 	See Home Prods., 633 F.3d at 1381;
Tokyo Kikai, 529 F.3d at 1361; Tianjin Magnesium, 36 CIT at __, 836
F. Supp. 2d at 1381. 	Therefore, taking into account the relatively
8 Commerce insists that its decision to solicit and place the
information 	concerning 	surrogate 	data 	for 	truck 	freight 	onto 	the
record is distinguishable from the instant issue because Commerce
used 	that 	information 	during 	the 	preliminary 	results 	stage 	but
“inadvertently 	failed 	to 	place 	it 	on 	the 	record.” 	Def.’s 	Br. 	at
13. 	However, 	this 	argument 	is 	unconvincing 	because 	it 	overlooks
Commerce’s decision to place new comments from both parties on the
record as well. 	See Pl.’s Br. at 10 & n.11, 13; I.A.P.R. 23.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 10 of 25

Court No. 12-00006 	Page 11
low 	burden 	of 	accepting 	the 	late 	submission 	in 	this 	case,
Commerce’s 	failure 	to 	address 	prima 	facie 	evidence 	of 	fraud 	that
USM presented during the proceeding was an abuse of discretion.
TMI argues that Commerce’s determination should nevertheless
be 	upheld 	because 	the 	information 	contained 	in 	the 	bulletin 	was
immaterial 	to 	Commerce’s 	retort 	classification. 	See 	Def.-
Intervenor Resp. Br. at 4. 	Specifically, TMI argues that Commerce
did not consider whether [[ 	]] 	rented 	or 	produced 	retorts
when classifying them as indirect materials. 	Id. 	However, TMI’s
argument must fail for a three reasons. 	First, Commerce made its
decision 	without 	considering 	the 	information 	in 	USM’s 	submission
because it was not on the record. 	Second, classifying retorts as
a direct material results in a higher NV and, accordingly, alters
the 	dumping 	margin. 	See 	Pl.’s 	Br. 	at 	12. 	Finally, 	should 	USM’s
submission ultimately indicate fraudulent conduct by TMI, Commerce
may decide to apply adverse facts available to the issue of retort
classification. 	See 	19 	U.S.C. 	§ 	1677e(b). 	The 	information
contained 	in 	the 	bulletin 	is 	material 	to 	the 	classification 	of
retorts and, as such, Commerce should have considered whether the
bulletin contained prima facie evidence of fraud.
Accordingly, the court remands this issue so that Commerce may
consider 	whether 	the 	bulletin 	presents 	prima 	facie 	evidence 	of
fraud. 	On remand, Commerce is not required to place the bulletin
and the associated materials onto the record, but it must provide
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 11 of 25

Court No. 12-00006 	Page 12
an adequate explanation addressing the evidence of fraud should it
elect 	not 	to 	do 	so. 	To 	guide 	its 	decision, 	Commerce 	should
consider 	the 	factors 	outlined 	in 	Home 	Products, 	including 	“the
interests in finality, the extent of the inaccuracies in the . . .
administrative 	review, 	whether 	fraud 	existed 	in 	the 	. 	. 	.
administrative review, the strength of the evidence of fraud, the
level of materiality, and other appropriate factors.” 	Home Prods.,
633 F.3d at 1381.
II. Classification of Retorts
Commerce classified retorts as indirect materials because they
“are not physically incorporated into the final magnesium product
and 	are 	replaced 	too 	infrequently 	to 	be 	considered 	a 	direct
material.” 	See 	I&D 	Memo 	at 	8. 	Commerce 	also 	determined 	that
[[ 	]] 	classifies 	retorts 	as 	an 	indirect 	material 	in 	its
accounting 	records. 	Id. 	at 	7. 	As 	such, 	Commerce 	accounted 	for
retort costs as factory overhead in the FOP calculation. 	Id. at 8.
USM claims that Commerce erroneously reclassified retorts as
an indirect material, treating them as factory overhead in the FOP
calculation 	and 	understating 	the 	NV. 	See 	Pl.’s 	Br. 	at 	17. 	USM
insists 	that 	retorts 	should 	be 	classified 	instead 	as 	a 	direct
material, id., and offers four arguments in support of its claim:
(1) 	Commerce 	wrongfully 	reclassified 	retorts 	as 	an 	indirect
material, ignoring the accounting practices of [[ 	]] without
showing that those practices were distortive; (2) Commerce limited
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 12 of 25

Court No. 12-00006 	Page 13
its 	analysis 	to 	physical 	incorporation 	and 	consumption 	frequency
while 	ignoring 	evidence 	that 	detracted 	from 	its 	conclusion 	in
violation of this Court’s holding in Bridgestone Americas, Inc. v.
United States, 34 CIT __, 710 F. Supp. 2d 1359 (2010); (3) Commerce
failed 	to 	articulate 	a 	standard 	for 	its 	useful 	consumption
frequency 	determination; 	and 	(4) 	Industry 	practice 	is 	to 	treat
retorts 	as 	a 	direct 	material. 	See 	Pl.’s 	Br. 	at 	17–28. 	Commerce
argues 	that 	its 	determination 	was 	consistent 	with 	both
[[ 	]]’s accounting records and the holding in Bridgestone.
See Def.’s Br. at 17–25.
The 	court 	cannot 	now 	determine 	whether 	Commerce’s
classification was based on substantial evidence because Commerce
may choose to place USM’s untimely submission on the record during
the 	remand 	proceeding. 	The 	results 	of 	that 	determination 	will
potentially 	impact 	Commerce’s 	classification 	of 	retorts.
Accordingly, 	the 	court 	will 	defer 	further 	consideration 	of 	this
issue in order to allow Commerce to revisit its classification of
retorts 	in 	light 	of 	its 	decision 	concerning 	USM’s 	untimely
submission. 	See Amanda Foods (Vietnam) Ltd. v. United States, 33
CIT __, __, 647 F. Supp. 2d 1368, 1379 (2009) (deferring judgment
on Commerce’s surrogate value selection because it would likely be
impacted by remand result of the surrogate country determination).
III. Surrogate Values
“Commerce 	ordinarily 	determines 	the 	[NV] 	of 	subject
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 13 of 25

Court No. 12-00006 	Page 14
merchandise of an exporter or producer from a [NME] country ‘on the
basis 	of 	the 	value 	of 	the 	[FOP] 	utilized 	in 	producing 	the
merchandise.’” 	Shantou Red Garden Foodstuff Co. v. United States,
36 CIT __, __, 815 F. Supp. 2d 1311, 1316 (2012) (quoting 19 U.S.C.
§ 	1677b(c)(1)). 	This 	procedure 	seeks 	“to 	assess 	the 	‘price 	or
costs’ 	of 	[FOP]” 	of 	subject 	merchandise 	in 	a 	comparable 	market
economy “in an attempt to construct a hypothetical market value of
that 	product.” 	Nation 	Ford 	Chem. 	Co. 	v. 	United 	States, 	166 	F.3d
1373, 1375 (Fed. Cir. 1999). 	Because “the process of constructing
foreign 	market 	value 	for 	a 	producer 	in 	a 	[NME] 	is 	difficult 	and
necessarily imprecise,” id. at 1377 (quoting Sigma Corp. v. United
States, 	117 	F.3d 	1401, 	1407 	(Fed. 	Cir. 	1997)), 	Commerce 	must 	use
the 	“best 	available 	information” 	to 	select 	surrogate 	values 	for
each of the FOP. 	19 U.S.C. § 1677b(c)(1).
When 	selecting 	the 	best 	available 	surrogate 	value, 	Commerce
“normally will use publicly available information to value [FOP],”
19 C.F.R. § 351.408(c)(1), and it prefers to use data “reflect[ing]
a 	broad 	market 	average 	. 	. 	. 	contemporaneous 	with 	the 	period 	of
review, specific to the input in question, and exclusive of taxes
on exports.” 	Fuwei Films (Shandong) Co. v. United States, 36 CIT
__, __, 837 F. Supp. 2d 1347, 1350–51 (2012). 	Commerce has “broad
discretion 	to 	determine 	the 	‘best 	available 	information.’”
Goldlink Indus. Co. v. United States, 30 CIT 616, 619, 431 F. Supp.
2d 1323, 1327 (2006) (quoting Timken Co. v. United States, 25 CIT
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 14 of 25

Court No. 12-00006 	Page 15
939, 	944, 	166 	F. 	Supp. 	2d 	608, 	616 	(2001)). 	When 	reviewing
Commerce’s surrogate value selection, “[t]he Court’s role is not to
make 	that 	determination 	anew, 	but 	rather 	to 	decide 	‘whether 	a
reasonable 	mind 	could 	conclude 	that 	Commerce 	chose 	the 	best
available information.’” 	China First Pencil Co. v. United States,
34 CIT __, __, 721 F. Supp. 2d 1369, 1375 (2010) (quoting QVD Food
Co. 	v. 	United 	States, 	34 	CIT 	__, 	__, 	721 	F. 	Supp. 	2d 	1311, 	1315
(2010), aff’d, 658 F.3d 1318 (Fed. Cir. 2011)).
A. Surrogate Value for Truck Freight
Commerce selected Infobanc as the surrogate for truck freight
rates in India because “Infobanc data are contemporaneous, country-
wide, 	and 	identify 	the 	relevant 	time 	period, 	distances, 	and
weights.” 	I&D 	Memo 	at 	16. 	Additionally, 	Commerce 	noted 	that 	it
has 	“traditionally 	relied 	on 	truck 	freight 	data 	published 	by
Infobanc to determine the [surrogate value] for inland freight.”
Id. 	Although 	Commerce 	acknowledged 	flaws 	and 	omissions 	in 	the
Infobanc rates, it still considered them to be the best available
information 	because 	of 	flaws 	in 	the 	two 	alternative 	surrogates
suggested 	by 	USM, 	World 	Bank’s 	rates 	from 	its 	survey 	“Trading
Across Borders in India” and the rates from Gati, Ltd. (“Gati”), a
truck 	freight 	company 	operating 	in 	India. 	See 	id. 	at 	16–18.
Specifically, 	Commerce 	rejected 	World 	Bank’s 	rates 	because 	they
included the prices of various means of inland transportation, 	id.
at 	16–17, 	and 	Gati’s 	rates 	because 	it 	prefers 	to 	use 	rates 	that
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 15 of 25

Court No. 12-00006 	Page 16
“reflect[] numerous transactions between many buyers and sellers”
over the rates from a single company. 	Id. at 18. 	USM argues that
Infobanc 	rates 	are 	unreliable 	and 	Commerce’s 	selection 	was
unsupported by substantial evidence in the record. 	See Pl.’s Br.
at 31–37. 9
“Commerce 	is 	not 	permitted 	to 	select 	a 	surrogate 	value 	by
default.” 	Taian Ziyang Food Co. v. United States, 35 CIT __, __,
783 F. Supp. 2d 1292, 1328 (2011). 	When choosing between imperfect
data sets, “Commerce’s analysis must do more than simply identify
flaws in the data sets it rejects.” 	Guangdong Chems. Imp. & Exp.
Corp. 	v. 	United 	States, 	30 	CIT 	1412, 	1417, 	460 	F. 	Supp. 	2d 	1365,
1369 	(2006). 	“[T]he 	law 	requires 	Commerce 	to 	make 	a 	reasoned
decision as to the source on which it chooses to rely, and to both
adequately 	explain 	its 	rationale 	and 	support 	its 	decision 	by
reference to substantial evidence in the record.” 	Taian Ziyang, 35
CIT at __, 783 F. Supp. 2d 1292 at 1329. 	Commerce erred in failing
to 	support 	its 	selection 	of 	Infobanc 	rates 	with 	substantial
evidence and in ignoring contradictory evidence on the record.
First, 	Commerce 	does 	not 	appear 	to 	have 	supported 	its
determination with reference to substantial evidence in the record.
9 USM also asks that the court order Commerce to select World
Bank rates, Gati’s rates, or both. 	See Pl.’s Br. at 37. 	However,
this Court will not review alternative surrogate value decisions de
novo in order to 	replace Commerce’s selection with one of its own.
See 	China 	First 	Pencil 	Co., 	34 	CIT 	at__, 	721 	F. 	Supp. 	2d 	at
1375(quoting QVD Food Co., 34 CIT at __, 721 F. Supp. 2d at 1315).
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 16 of 25

Court No. 12-00006 	Page 17
As 	noted 	above, 	Commerce 	stated 	that 	it 	selected 	Infobanc 	rates
because they are “contemporaneous, country-wide, and identify the
relevant 	time 	period, 	distances, 	and 	weights.” 	I&D 	Memo 	at 	16.
Underlying 	that 	finding 	is 	Commerce’s 	conclusion 	that 	Infobanc
rates “represent actual transaction prices reflecting truck freight
between 	a 	number 	of 	Indian 	cities.” 	Def.’s 	Br. 	at 	32. 	However,
Commerce 	does 	not 	cite 	any 	evidence 	in 	the 	record 	in 	support 	of
this 	claim. 	See 	id. 	at 	32–33. 	Instead, 	Commerce 	cites 	earlier
reviews where it relied on Infobanc rates. 	See id. (citing Wooden
Bedroom Furniture from the PRC: Final Results and Final Rescission
in 	Part, 	75 	Fed. 	Reg. 	50,992 	(Aug. 	18, 	2010) 	and 	Certain 	New
Pneumatic 	Off-the-Road 	Tires 	from 	the 	PRC: 	Final 	Results 	of 	the
2009-2010 	Antidumping 	Duty 	Administrative 	Review 	and 	Final
Rescission, 	in 	Part, 	77 	Fed. 	Reg. 	14,495 	(Mar. 	12, 	2012)).
However, Commerce’s reliance on Infobanc in earlier reviews simply
does not support its present conclusion that Infobanc rates reflect
real 	transaction 	prices 	throughout 	India. 10 	Moreover, 	Commerce’s
proffered evidence fails to establish a link between the rates and
10 	Commerce 	argues, 	by 	reference 	to 	earlier 	reviews, 	that
Infobanc’s website has a “Directory of Logistics Operators, which
would 	indicate 	that 	Infobanc 	data 	is 	likely 	not 	from 	a 	single
logistics 	company.” 	See 	Def.’s 	Br. 	at 	33 	(citing 	Certain 	New
Pneumatic 	Off-the-Road 	Tires 	from 	the 	PRC: 	Issues 	and 	Decision
Memorandum 	for 	the 	Final 	Results 	of 	the 	2009-2010 	Administrative
Review 	of 	the 	Antidumping 	Duty 	Order 	at 	18, 	Inv. 	No. 	A-570-912
(Mar. 5, 2012) (emphasis added). 	However, that Commerce previously
found that Infobanc possibly sources its information from multiple
companies 	is 	not 	persuasive, 	especially 	when 	the 	record 	lacks
evidence in support of that conclusion.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 17 of 25

Court No. 12-00006 	Page 18
any actual transaction prices. 	Without record evidence to support
the 	use 	of 	Infobanc 	rates, 	a 	reasonable 	person 	could 	not 	select
them as the best available surrogate. 	China First Pencil Co., 34
CIT at __, 721 F. Supp 2d at 1375.
Second, Commerce’s selection is flawed because the record does
not contain any explanatory information indicating the reliability,
sources, 	or 	methodology 	behind 	Infobanc 	rates. 	See 	Allied 	Pac.
Food (Dalian) Co. v. United States, 34 CIT __, __, 716 F. Supp. 2d
1339, 	1350 	(2010) 	(sustaining 	Commerce’s 	decision 	to 	reject 	a
proposed surrogate where record evidence indicated that the prices
“lack[ed] 	supporting 	data 	on 	total 	value 	and 	volume 	and 	ha[d]
deficiencies with respect to count size”); Wuhan Bee Healthy Co. v.
United 	States, 	31 	CIT 	1182, 	1195 	(2007) 	(not 	published 	in 	the
Federal 	Supplement) 	(sustaining 	Commerce’s 	decision 	to 	reject 	an
Indiainfoline 	article 	because 	it 	contained 	“no 	additional
information 	on 	the 	author’s 	qualifications 	or 	the 	sources 	of 	his
information”). 	Here, 	USM 	specifically 	points 	out 	that 	“the
essential terms of the posted rates are unknown, including whether
the 	rates 	(1) 	relate 	to 	offers 	for 	shipments 	or 	reflect 	actual
transactions, 	(2) 	apply 	to 	containerized 	or 	bulk 	shipments, 	(3)
reflect long term contract or spot prices, and (4) are inclusive of
loading and unloading costs.” 	Pl.’s Br. at 34–35. 	While Commerce
itself 	recognized 	this 	infirmity, 	admitting 	that 	it 	was 	“unclear
whether 	Infobanc 	truck 	rate 	data 	on 	the 	record 	include 	costs
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 18 of 25

Court No. 12-00006 	Page 19
associated 	with 	those 	activities,” 	I&D 	Memo 	at 	18, 	it 	overlooked
this 	flaw 	because 	it 	“assume[d] 	the 	surrogate 	truck 	freight 	rate
used 	includes 	all 	costs 	associated 	with 	activities 	relating 	to
truck freight, absent evidence to the contrary.” 	Id. 	In fact, the
record contains little information concerning the Infobanc data, as
each set of monthly prices merely includes the single explanatory
phrase: “Rupees per tonne for nine tonnes.” 	See generally I.A.P.R.
20 Att. 2. 	Ultimately, Commerce fails to identify evidence in the
record sufficient to demonstrate the reliability of Infobanc rates.
Further, record evidence indicates that during the POR there
was a significant divergence between Infobanc rates and diesel fuel
prices, 	which 	comprise 	a 	significant 	portion 	of 	truck 	freight
rates. 	See I.A.P.R. 20 Att. 2; P.R. 56 Ex. 1, Att. 8. 	The record
demonstrates that Infobanc rates fell 17% during the POR, I.A.P.R.
20 Att. 2; Pl.’s Br. at 33 n.53, while diesel fuel prices increased
by 17%. 	See P.R. 56 Ex. 1, Att. 8; Pl.’s Br. at 32 n.50. 	Commerce
disagreed with USM’s characterization of the price trends, arguing
that 	USM 	“misconstrue[d] 	the 	circumstances” 	in 	which 	the 	diesel
prices were measured by basing its calculations on inflated prices.
See I&D Memo at 17. 	Commerce’s conclusion is contradicted by the
record, 	which 	contains 	uninflated 	prices 	from 	Indian 	Oil 	Corp.
during 	the 	POR 	depicting 	the 	price 	increase 	in 	diesel 	fuel. 	See
P.R. 56 Ex. 1, Att. 8.
Commerce argues that Infobanc data is still the best available
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 19 of 25

Court No. 12-00006 	Page 20
information because of flaws in the alternative data sets. 	See I&D
Memo 	at 	18. 	However, 	Commerce’s 	rebuttal 	of 	World 	Bank 	and 	Gati
data does not cure its failure to adequately explain its reliance
upon Infobanc data. 	See Guangdong Chems., 30 CIT at 1417, 460 F.
Supp. 2d at 1369; Longkou Haimeng Machinery Co. v. United States,
32 	CIT 	1142, 	1164–65, 	581 	F. 	Supp. 	2d 	1344, 	1363–64 	(ordering
remand 	where 	Commerce 	provided 	adequate 	reasoning 	for 	rejecting
potential 	surrogate 	data 	but 	failed 	to 	adequately 	“explain 	its
reliance” 	on 	the 	data 	set 	it 	selected) 	(Tsoucalas, 	Senior 	J.).
Commerce was still required to provide a reasonable explanation of
its selection of Infobanc rates with substantial evidence from the
record. 	See 	Taian 	Ziyang, 	35 	CIT 	at 	__, 	783 	F. 	Supp. 	2d 	1292 	at
1329.
For 	the 	foregoing 	reasons, 	the 	court 	must 	remand 	Commerce’s
determination. 	On remand Commerce must 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.
B. Surrogate Value for Financial Ratios
Commerce 	selected 	the 	financial 	statements 	of 	Hindalco
Industries 	Ltd. 	(“Hindalco”) 	to 	calculate 	surrogate 	financial
ratios. 	I&D 	Memo 	at 	11. 	USM 	argues 	that 	Hindalco’s 	financial
statements 	were 	not 	the 	best 	available 	information 	because 	the
majority 	of 	Hindalco’s 	production 	is 	dedicated 	to 	non-comparable
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 20 of 25

Court No. 12-00006 	Page 21
merchandise and Hindalco received countervailable subsidies during
the POR. 	See Pl.’s Br. at 28–31. 	Commerce “requests a remand to
reconsider 	[USM]’s 	argument 	concerning 	Commerce’s 	selection 	of
Hindalco’s financial statement for calculating surrogate financial
ratios 	and 	to 	determine 	whether 	Hindalco’s 	financial 	statement
continues 	to 	be 	the 	best 	available 	information 	on 	the 	record.”
Def.’s 	Br. 	at 	35. 	Accordingly, 	USM’s 	request 	to 	remand 	for
reconsideration of the surrogate financial ratios is granted.
C. Surrogate Value for Labor
USM 	alleges 	that 	“Commerce 	made 	two 	errors 	when 	calculating
the 	surrogate 	value 	for 	labor”: 	(1) 	Commerce 	selected 	the 	wrong
base period for the inflation adjustment, using May 1, 2007 through
April 30, 2008 instead of April 1, 2007 through March 31, 2008 and
(2) 	“Commerce 	derived 	the 	inflation 	adjustment 	using 	India’s
wholesale 	price 	index, 	when 	its 	labor 	policy 	bulletin 	identified
the Consumer Price Index as the preferred index.” 	Pl.’s Br. at 39.
Commerce requests that this Court remand the surrogate for labor so
that 	it 	might 	“examine 	these 	allegations.” 	Def.’s 	Br. 	at 	34.
Accordingly, 	USM’s 	request 	to 	remand 	for 	reconsideration 	of 	the
surrogate value for labor is granted.
III. U.S. Movement Expenses
During the review, TMI reported that Mr. James Gammons engaged
in certain “ministerial activities” on behalf of TMI. 	P.R. 61 at
3. 	Commerce concluded that TMI incurred “expenses on facilitation”
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 21 of 25

Court No. 12-00006 	Page 22
in 	association 	with 	the 	services 	Mr. 	Gammons 	provided, 	which
included 	“contact[ing] 	customshouse 	brokers, 	freight 	forwarders,
trucking 	companies, 	[and] 	warehouse 	companies.” 	I&D 	Memo 	at 	4.
However, 	Commerce 	determined 	that 	TMI 	did 	not 	incur 	any 	selling
expenses in the U.S and that “the record contains no evidence that
Mr. Gammons engaged in sales of the subject merchandise on behalf
of TMI or took possession of the subject merchandise.” 	Id. 	Thus,
Commerce decided not to adjust the U.S. sales price to reflect the
expenses 	TMI 	incurred 	in 	payment 	of 	Mr. 	Gammons’ 	services. 	Id.
Additionally, Commerce noted that all of TMI’s U.S. sales were EP
sales 11 and therefore TMI was not required to report sales expenses
incurred in the U.S. because generally such expenses “are captured
in the surrogate financial ratios under the NME FOP methodology to
calculate [NV] for EP sales.” 	Id. 	USM argues that the expenses at
issue were movement expenses and therefore Commerce was required to
deduct 	them 	from 	the 	U.S. 	price 	under 	19 	U.S.C. 	§ 	1677a(c)(2)(a)
regardless of whether they were associated with CEP or EP sales.
See Pl.’s Br. at 39.
When calculating EP or CEP, Commerce is directed to reduce the
price by “the amount, if any, included in such price, attributable
11 Commerce calculates EP “if the first sale to an unaffiliated
purchaser in the United States or to an unaffiliated purchaser for
export to the United States is made by the producer or exporter in
the 	foreign 	market 	prior 	to 	the 	date 	of 	importation.” 	Import
Administration, 	Antidumping 	Manual, 	ch. 	7, 	p. 	3 	(Oct. 	13, 	2009)
(emphasis added).
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 22 of 25

Court No. 12-00006 	Page 23
to 	any 	additional 	costs, 	charges, 	or 	expenses, 	and 	[U.S.] 	import
duties, which are incident to bringing the subject merchandise from
the 	original 	place 	of 	shipment 	in 	the 	exporting 	country 	to 	the
place of delivery in the [U.S.]” 	19 U.S.C. § 1677a(c)(2)(A). 	When
calculating CEP, Commerce makes certain additional adjustments for
selling 	expenses 	incurred 	in 	the 	U.S., 	including 	commissions,
credit 	expenses, 	guarantees, 	and 	warrantees. 	See 	19 	U.S.C. 	§
1677a(d)(1). 	However, under the NME methodology, Commerce does not
adjust 	EP 	for 	those 	expenses 	incurred 	in 	the 	U.S., 	as 	they 	are
included 	in 	the 	FOP 	calculation 	of 	NV 	under 	selling, 	general 	and
administrative expenses. 	See Antidumping Manual, ch. 10 at p. 11;
I&D Memo at 4. 	The issue before the court is whether the expenses
TMI incurred were movement expenses, for which Commerce must adjust
U.S. sales price under 19 U.S.C. § 1677a(c)(2)(A).
Here, 	Commerce’s 	decision 	not 	to 	adjust 	EP 	was 	supported 	by
substantial 	evidence 	because 	the 	expenses 	associated 	with 	Mr.
Gammon’s 	services 	are 	not 	movement 	expenses. 	See 	19 	U.S.C. 	§
1677a(c)(2)(A). 	The services Mr. Gammons provided, which included
“contact[ing] 	customshouse 	brokers, 	freight 	forwarders, 	trucking
companies, 	[and] 	warehouse 	companies,” 	I&D 	Memo 	at 	4, 	were 	too
attenuated 	from 	the 	actual 	movement 	of 	subject 	merchandise 	to 	be
considered 	movement 	expenses. 	Mr. 	Gammons 	did 	not 	move 	or 	store
the 	goods 	nor 	was 	he 	compensated 	for 	such 	services. 	The 	record
supports 	Commerce’s 	conclusion 	that 	Mr. 	Gammons 	“contacted” 	such
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 23 of 25

Court No. 12-00006 	Page 24
service providers on behalf of TMI, but did not enter contracts or
act 	as 	an 	agent 	on 	TMI’s 	behalf. 	See 	P.R. 	61 	at 	3. 	The 	prior
reviews 	USM 	cites 	are 	unpersuasive 	because 	they 	are 	easily
distinguishable 	from 	the 	instant 	case: 	they 	concern 	costs
associated 	with 	the 	actual 	movement 	of 	goods. 	See 	Issues 	and
Decision Memorandum for the Final Determination in the Antidumping
Investigation of Chlorinated Isocyanurates from Spain at 20, Inv.
No. 	A-469-814 	(May 	2, 	2005) 	(freight 	forwarding 	costs 	are 	an
element 	of 	U.S. 	movement 	expenses) 	and 	Notice 	of 	Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Silicon Metal from the Russian Federation, 67
Fed. Reg. 59,253, 59,261–62 (Sept. 20, 2002) (U.S. inland freight
costs are an element of U.S. movement expenses). 	The “expenses on
facilitation,” I&D Memo at 4, associated with Mr. Gammons’ services
cannot 	be 	considered 	movement 	expenses. 	Therefore, 	Commerce’s
determination regarding Mr. Gammons’ services was reasonable.
CONCLUSION
For the foregoing reasons the court concludes that the Final
Results are sustained with regard to the U.S. movement expenses but
remanded as to USM’s untimely submission and the surrogate values
for truck freight, labor, and financial ratios. 	The court defers
judgment on the issue of retort classification so Commerce has an
opportunity to reconsider its chosen classification should Commerce
place USM’s untimely submission on the record during remand.
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 24 of 25

Court No. 12-00006 	Page 25
ORDER
In accordance with the above, it is hereby
ORDERED that this case is to be remanded to the United States
Department 	of 	Commerce, 	International 	Trade 	Administration, 	to
reconsider its findings regarding USM’s untimely submission and the
surrogate 	values 	for 	truck 	freight, 	labor, 	and 	financial 	ratios;
and it is further
ORDERED that the Final Results are sustained with respect to
United States movement expenses; and it is further
ORDERED that remand results are due within ninety (90) days of
the 	date 	this 	opinion 	is 	entered. 	Any 	responses 	or 	comments 	are
due within thirty (30) days thereafter. 	Any rebuttal comments are
due within fifteen (15) days after the date responses or comments
are due.
/s/ NICHOLAS TSOUCALAS
Nicholas Tsoucalas
Senior Judge
Dated: 	January 22, 2013
New York, New York
Case 1:12-cv-00006-RKE Document 74 Filed 01/22/13 Page 25 of 25