Mid Continent Steel & Wire, Inc. v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
MID CONTINENT STEEL & WIRE, INC.,
Plaintiff/Consolidated Defendant-
Intervenor,
v.
UNITED STATES,
Defendant,
and
OMAN FASTENERS, LLC,
Defendant-Intervenor/Consolidated
Plaintiff.
Before: Mark A. Barnett, Chief Judge
Consol. Court No. 15-00214
OPINION AND ORDER
[Remanding the second remand results in this antidumping duty investigation of certain
steel nails from the Sultanate of Oman.]
Dated: December 22, 2021
Adam H. Gordon and Ping Gong, The Bristol Group PLLC, of Washington, DC, for
Plaintiff/Consolidated Defendant-Intervenor Mid Continent Steel & Wire, Inc.
Mikki Cottet, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant United States. 	With her on
the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Ian
McInerney, Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.
Michael P. House, Andrew Cardias, and Shuaiqi Yuan, Perkins Coie LLP, of
Washington, DC, for Defendant-Intervenor/Consolidated Plaintiff Oman Fasteners, LLC.
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Barnett, Chief Judge: This matter arises out of a challenge to the U.S.
Department of Commerce’s (“Commerce” or “the agency”) second remand results in its
antidumping duty investigation of certain steel nails from the Sultanate of Oman. See
Final Results of Redetermination Pursuant to [Second] Court Order (“Second Remand
Results”), ECF No. 135-1. 	The Second Remand Results were issued in response to an
opinion by the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”), wherein
the Federal Circuit held that Commerce had not adequately explained its reliance on a
financial statement from Hitech Fastener Manufacturer (Thailand) Co., Ltd. (“Hitech”), a
third-country company, to determine constructed-value profit because the agency had
not sufficiently considered whether Hitech had received countervailable subsidies. 	Mid
Continent Steel & Wire, Inc. v. United States (“Mid Continent III”), 941 F.3d 530, 542–45
(Fed. Cir. 2019).
The court again remands the determination to Commerce for reconsideration and
further explanation of its reliance on Hitech’s financial statement. 	The Second Remand
Results are largely conclusory and fail to provide the explanations and analysis required
to comply with the findings of the Federal Circuit.
B ACKGROUND
This matter originated when Plaintiff Mid Continent Steel & Wire, Inc. (“Mid
Continent”) and Defendant-Intervenor Oman Fasteners, LLC (“Oman Fasteners”) each
challenged separate aspects of Commerce’s final determination that Oman Fasteners
was selling goods at less than fair value, or “dumping,” in the United States. 	See
Certain Steel Nails From the Sultanate of Oman, 80 Fed. Reg. 28,972 (Dep’t Commerce
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May 20, 2015) (“Final Determination”), ECF No. 16-1, and accompanying Issues and
Decision Mem., A-523-808 (May 13, 2015) (“I&D Mem.”), ECF No. 16-2.
When determining whether a company is dumping, section 773(a) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1677b(a) (2012), 1 directs Commerce to calculate
the difference between the export price and the normal value, a value usually based on
the price at which the merchandise is sold in the exporting country or in a third country
other than the United States. 	Id. If, however, there are insufficient home-market and
third-country sales, as was the case with Oman Fasteners, Commerce calculates the
“constructed value” of the merchandise to use as the normal value. 19 U.S.C.
§ 1677b(a)(4). 	Constructed value consists of the sum of (1) the cost of producing the
merchandise; (2) amounts for profit and selling, general, and administrative expenses;
and (3) the cost of packaging for shipment to the United States. 	See 19 U.S.C. §
1677b(e).
Commerce may use one of four methods to calculate constructed value profit
depending on what data is available: the “preferred method,” which is based on actual
profits and expenses, or one of three alternative methods, among which there is no
hierarchy or preference. 2 See SKF USA Inc. v. United States, 263 F.3d 1369, 1374
(Fed. Cir. 2001). 	In this case, because “actual data” were not available as required for
the preferred method, Commerce chose to apply the third of the alternative methods,
which allows Commerce to utilize “any other reasonable method” to determine
1 Further citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S.
Code, and references to the U.S. Code are to the 2012 edition, unless stated otherwise.
2 If “actual amounts” of profits and sales, general, and administrative expenses of the
company are available, the “preferred method” is used; if no actual data are available,
one of the alternative methods is used. 	19 U.S.C. § 1677b(e)(2)(A)-(B).
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constructed value profit, subject to a profit cap provided in the statute. 3 	See Mid
Continent III, 941 F.3d at 535–36 (citations omitted); 19 U.S.C. § 1677b(e)(2)(B)(iii).
“[A]ny other reasonable method” may include, as Commerce chose in this case, the
financial statements from a third-country company. See Mid Continent III, 941 F.3d at
542–545 (remanding for Commerce to reconsider its reliance on Hitech’s financial
statement for calculating constructed value profit while leaving open the possibility that
Commerce may continue to do so).
Oman Fasteners submitted financial data from several Omani companies along
with partially translated financial statements from L.S. Industry Co., Ltd. (“LSI”), a Thai
producer of steel nails, as proposed sources of constructed value profit. Id. at 535. 	Mid
Continent, in turn, submitted other financial statements, including the statements of
Hitech, a Thai producer of steel screws, and Sundram Fasteners Limited (“Sundram”),
an Indian producer of auto parts and fasteners. 	Id. at 535–36; I&D Mem. at 14. For the
Final Determination, Commerce chose Hitech as the source of constructed value profit,
declined to consider the partially translated LSI statements, and found no profit cap
available to apply to the constructed value profit determination. 	Mid Continent III, 941
F.3d at 536.
These findings were challenged, and the court remanded the case to Commerce
on two issues. 	Mid Continent Steel & Wire, Inc. v. United States (“Mid Continent I”), 41
3 Commerce used the third alternative method for its preliminary determination, and
then continued to rely thereon for the Final Determination. 	See Mid Continent III, 941
F.3d at 536 (citations omitted).
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CIT __, 203 F. Supp. 3d 1295 (2017). 4 To address the court’s concerns, Commerce
issued the First Remand Results. 	See Final Results of Redetermination Pursuant To
[First] Court Order (“First Remand Results”) at 1, ECF No. 95-1. 	These First Remand
Results were contested at the court, but the court affirmed the results. 	Mid Continent
Steel & Wire, Inc. v. United States (“Mid Continent II”), 41 CIT __, 273 F. Supp. 3d 1348
(2017). 5 	Mid Continent II was appealed to the Federal Circuit, which issued Mid
Continent III.
Before the Federal Circuit, Oman Fasteners challenged several aspects of the
First Remand Results. 	In particular, it challenged (1) Commerce’s choice of the third
alternative method for calculating constructed value profit, (2) Commerce’s refusal to
consider LSI’s partially translated financial statements and its rejection of LSI’s fully
translated statements, (3) Commerce’s choice of Hitech’s financial statements despite
potential evidence of a subsidy, and (4) Commerce’s conclusion that it could not
calculate a profit cap. See Mid Continent III, 941 F.3d at 534, 537.
4 Mid Continent I remanded Commerce’s Final Determination with respect to two issues
raised by Oman Fasteners: (1) Commerce’s reliance on third-country profit data from
the production of comparable products instead of home-market profit data to calculate
constructed value profit; and (2) Commerce’s refusal to apply a profit cap to the
constructed value profit rate. 	See Mid Continent I, 203 F. Supp. 3d at 1308–10, 1314–
16. The court found that Commerce did ‘‘not adequately explain why third-country data
of comparable merchandise better represents Omani sales of steel nails than home-
market sales data from Omani steel producers.’’ 	Id. at 1310. 	In addition, the court
found that Commerce failed to adequately explain why it could ‘‘not make use of ‘facts
otherwise available’ in order to’’ calculate a profit cap. Id. at 1316. 	The court sustained
the remainder of the contested determination. 	See id.
5 Mid Continent II affirmed the First Remand Results, in which Commerce continued to
use third-country data to calculate constructed value profit and continued to find that
there was insufficient data with which to calculate a profit cap. See Mid Continent II,
273 F. Supp. 3d at 1350.
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The Federal Circuit affirmed in part, vacated in part, and remanded. 	Id. at 546.
The Federal Circuit affirmed the use of the third alternative method for calculating
constructed value profit. Id. at 538–40. 	It also affirmed Commerce’s decision not to rely
on the partial translation of LSI’s financial statements, along with the agency’s decision
to reject the late-submitted full translation of LSI’s financial statements. 	Id. at 540–42.
With respect to the choice of Hitech’s financial statements, while not directing a
conclusion about which financial statements should be used, the Federal Circuit held
that Commerce must address record information raising questions as to whether Hitech
received subsidies. 	Id. at 544–45. 	In particular, the Federal Circuit rejected
Commerce’s suggestion that the practice of disregarding financial statements based on
suspicion of subsidies was limited to nonmarket-economy proceedings. 	Id. at 544. The
Federal Circuit held that Commerce’s statement of practice in nonmarket-economy
cases failed to substantiate the reasonableness of declining to consider the possible
indications of a subsidy in market-economy proceedings generally or in this case
specifically. Id. The Federal Circuit explained that subsidies could distort a substitute
company’s financial statements, noting that “[a]s a logical matter, Hitech would be a
weaker surrogate for constructed value [profit] if government subsidies heavily distort its
profits.” Id. Consistent with the above, the Federal Circuit remanded to this court to
remand to Commerce. Id. at 546.
In the Second Remand Results, Commerce largely reiterates its prior
conclusions regarding its reliance on third-country profit data and Hitech’s financial
statements for calculating constructed value profit. See Second Remand Results at 3–
7.
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First, Commerce explained that, of the eleven financial statements on the record,
“[n]one of the six Omani companies produce steel nails or any . . . merchandise
comparable . . . to steel nails.” 6 	Id. at 4. Second, after narrowing the comparable
producers to two companies, 7 Hitech and Sundram, Commerce found that, as
compared to Oman Fastener’s nails, Hitech’s screws utilized “similar formation and
collation machinery in their production processes,” Hitech “[sold] their product[] . . . for
the same end use,” id. at 4, and Hitech’s screws had “similar . . . terms of profitability,”
id. at 5. Sundram, in contrast, “does produce some comparable merchandise, [but] a
large portion of its production consists of various automobile parts that are not
comparable to nails.” 	Id. at 4. Commerce therefore concluded that Hitech’s statements
better reflected the profit of a producer of nails. 	See id. at 5.
Regarding Hitech’s possible receipt of a subsidy from the Thai government,
Commerce explained that there was nothing on the record to support the conclusion
6 In order to calculate constructed value profit under the “any other reasonable method”
provision, Commerce looks for a company that produces comparable merchandise.
Second Remand Results at 3–4. To this end, Commerce explained that it used the
factors from Pure Magnesium From Israel, 66 Fed. Reg. 49,349 (Dep’t Commerce Sept.
27, 2001) (notice of final determination of sales at less than fair value), and Certain
Color Television Receivers From Malaysia, 69 Fed. Reg. 20,592 (Dep’t Commerce Apr.
16, 2004) (notice of final determination of sales at not less than fair value)), to find a
constructed value profit substitute under the third alternative. 	Second Remand Results
at 8. These factors include: “(1) the similarity of the potential surrogate companies’
business operations and products to the respondent’s; (2) the extent to which the
financial data of the surrogate company reflects sales in the United States as well as the
home market; and (3) the contemporaneity of the surrogate data to the POI.” Pure
Magnesium From Israel, 66 Fed. Reg. 49,349, and accompanying Issues and Decision
Mem., A-508-809 (Sept. 14, 2001); see also Certain Color Television Receivers From
Malaysia, 69 Fed. Reg. 20,592, and accompanying Issues and Decision Mem., A-557-
812 (Apr. 16, 2004).
7 Commerce re-asserted its refusal to consider the financial statements for two
Taiwanese companies and LSI due to the lack of English translations for portions of
those financial statements. See Second Remand Results at 4.
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that Hitech received a countervailable subsidy. 	See id. While Commerce
acknowledged that Hitech’s financial statements indicated that “[t]he company has been
support for production screws (SCREW) Category 4.7 Manufacture of wire products,
metal wire Promotion Number 1447/2538 on July 10, 1995,” id. at 5 n.19, a statement
which refers to a program that Commerce has countervailed in other cases, Commerce
noted that the financial statements do not report an amount associated with the
potential subsidy and Oman Fastener does not point to any, id. at 5. Commerce
explained that the “ultimate choice of [constructed value] profit in any given proceeding
must be sourced from the record,” id. at 6, which “will vary by the available choices,” id.
at 7. Commerce notes that each case “stands on its own,” id. at 5, and, in this case,
after weighing the quality of data against the criteria established under 19 U.S.C.
§ 1677b(e)(2)(B)(iii), record evidence supports its conclusion that Hitech’s data more
closely reflects the production of nails than does Sundram’s, id. at 7.
Lastly, Commerce rejected the argument that it should have reconsidered LSI’s
financial statements. 	Id. at 10–11. 	Commerce also rejected the argument that it must
reopen the record to accept the fully translated version of LSI’s financial statements or
other possible sources of constructed value profit. Id. at 13–14.
Before this court, Oman Fasteners opposes the Second Remand Results
because, in its view, Commerce provided an insufficient explanation for its continued
reliance on Hitech’s financial statements despite having rejected Hitech’s statements
based on the inclusion of possible subsidies in another proceeding. 	Cmts. of Pl. Oman
Fasteners, LLC in Opp’n to the Commerce Dept’s Remand Redetermination (“Pl.’s
Opp’n Cmts.”) at 7, ECF No. 138 (citing Steel Wire Garment Hangers From the People’s
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Republic of China, 79 Fed. Reg. 65,616 (Dep’t Commerce Nov. 5, 2014) (prelim. results
of antidumping duty admin. review; 2012–2013)). 	Oman Fasteners also argues that
Commerce ignored alternative sources of constructed value profit data available to the
agency, and that Commerce should compare all financial statements on the record—
including LSI’s rejected statements—along with re-opening the record to obtain all
readily available and relevant information. 	See id. at 17–24. 	Due to the deficiencies in
the record, Oman Fasteners argues, the Second Remand Results are unlawful and
unsupported by substantial evidence. 	Id. at 25. Mid Continent and Defendant United
States (“the Government”) urge the court to sustain Commerce’s Second Remand
Results in full. See Cmts. of Pl./Consol. Def-Intervenor Mid Continent Steel & Wire, Inc.
on Final Remand Determination (“Mid Continent’s Resp. to Cmts.”), ECF No. 137; Def.’s
Resp. to Cmts. on Remand Redetermination (“Def.’s Resp. to Cmts.”), ECF No. 142.
For the reasons discussed herein, the court remands Commerce’s Second
Remand Results, finding that they insufficiently consider whether possible subsidies
affect the appropriateness of using Hitech’s financial statements in calculating
constructed value profit.
JURISDICTION AND STANDARD OF R EVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(i) and 28
U.S.C. § 1581(c). The court will uphold an agency determination that is supported by
substantial evidence and otherwise in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i).
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D ISCUSSION
I. 	Parties’ Contentions
Oman Fasteners contends that Commerce did not reconsider or explain its use
of Hitech’s financial data in calculating constructed value profit despite potential
evidence of a subsidy. 	See Pl.’s Opp’n Cmts. at 7–17. 	Oman Fasteners argues that
there is “undisputed” evidence of a subsidy in the record that impacts the usefulness of
Hitech’s profit data and that evidence precludes Commerce from using Hitech’s financial
data for constructed value profit. Id. at 7. Oman Fasteners relies primarily on Steel
Wire Garment Hangers From China, a determination in which Commerce found that
Hitech’s financial statements “contain[] evidence of a subsidy [Commerce had]
previously found to be countervailable.” 	Id. (citing Steel Wire Garment Hangers From
China, 79 Fed. Reg. at 65,616) (first alteration in original). 	Oman Fasteners argues
that, so too here, Commerce must also find evidence of a subsidy and exclude Hitech’s
financial statements. 	See id. Oman Fasteners additionally argues that Commerce
should reconsider its refusal to rely on LSI’s financial statements or reopen the record
due to its many inadequacies. 	See id. at 17–24.
The Government contends that Commerce complied with the remand order. 8
Def.’s Resp. to Cmts. at 7. The Government emphasizes that, in reconsidering Hitech’s
financial statements, Commerce reexamined the eleven companies’ financial
statements, id. at 5, with an eye to the “statutory preference for both home market and
8 Mid Continent also supports Commerce’s remand results. 	Mid Continent’s Resp. to
Cmts. at 1. Its arguments largely echo those of the government, emphasizing that there
is not conclusive evidence of a subsidy received by Hitech and that the other financial
statements are unusable. 	See id. at 1–4.
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comparability in merchandise,” id. at 6. Based on these statutory preferences, the
Government contends, Commerce found that Hitech’s financial data best reflected the
profit of a company like Oman Fasteners. 	See id. at 10. The Government further
argues that while there is a suggestion of a subsidy in Hitech’s financial statements,
there is no amount reported, allowing Commerce to find that “Hitech’s financial
statements are the best source on the record to calculate the constructed value profit
ratio.” 	Id. at 6. The Government also contends that Commerce properly enforced its
regulations and deadlines when it declined to rely on LSI’s partially translated financial
statements and rejected LSI’s untimely fully translated financial statements. 	Id. at 12–
15. Lastly, the Government notes that the decision to reopen the record lies entirely
within Commerce’s discretion, and there is no basis to require Commerce to reopen the
record in this case. See id. at 15–16.
II. 	Commerce Failed to Justify its Reliance on Hitech’s Financial
Statements for Constructed Value Profit
In the Second Remand Results, Commerce failed to justify its reliance on
Hitech’s financial statements to determine constructed value profit. In particular,
Commerce did not explain why this case is distinguishable from a case in which
Hitech’s financial statements were disregarded due to evidence of a countervailable
subsidy. 	Commerce also did not explain why, given its finding that the potential
subsidies could not be quantified, Hitech’s financial statements were a better choice
than Sundram’s.
First, Commerce did not adequately distinguish this case from a case in which
Hitech’s financial statements were found to be unsuitable because they contained
evidence of a subsidy. 	See Second Remand Results at 5–6 (merely noting that each
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determination stands on its own record). Hitech’s financial statements were previously
disregarded in a separate, non-market economy proceeding, Steel Wire Garment
Hangers From China, due to potential evidence of subsidies. 	See Pl.’s Opp’n Cmts. at
12. As the Federal Circuit explained, Commerce’s reliance on the distinction between
market-economy and nonmarket-economy cases is inadequate, by itself, to support the
agency’s disparate treatment of Hitech’s financial statements. 	Mid Continent III, 941
F.3d at 544. In the Second Remand Results, however, Commerce failed to explain why
this case differs from Steel Wire Garment Hangers From China. 	See Second Remand
Results at 5–6.
Commerce’s sole justification for distinguishing this case from Steel Wire
Garment Hangers From China is that “the record of each case stands on its own.” Id. at
5. This assertion, however, does not explain or identify any difference between the two
cases that would lead to such different treatment. 	In support of its assertion that it need
not consider the subsidy, Commerce stated that, “in this case[,] . . . the financial
statements of Hitech do not report an amount associated with the potential subsidy” and
“the respondent [does not] cite to any in its remand comments.” Id. Commerce did not
find that any evidence of a subsidy was so insignificant as to permit the evidence to be
completely ignored; instead, Commerce found only that the subsidy is not quantifiable.
See id. at 5, 13. Thus, Commerce’s decision to ignore the potential subsidy is
unsupported by substantial evidence.
Second, the Federal Circuit acknowledged that Commerce may need to engage
in a comparative analysis of the deficiencies of multiple financial statements. 	See Mid
Continent III, 941 F.3d at 544 (“The size of any subsidies would obviously be relevant,
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as would the comparative deficiencies of the alternative sources.”). 	In fact, Commerce
does appear to have engaged in a limited comparison between the Hitech and Sundram
financial statements; however, even that comparative analysis is largely conclusory.
See Second Remand Results at 4. Commerce found that Sundram produces “some
comparable merchandise,” but “a large portion of its production consists of various
automobile parts that are not comparable to nails.” 	Id. (citations omitted). Commerce
went on to conclude that because Sundram produces mostly auto parts, Sundram’s
financial statements are less appropriate as a substitute than Hitech’s financial
statements, given that Hitech produces fasteners. 	See id.
While that comparison took account of the differing production foci of the two
companies, and also identified a concern about the impact of the non-comparable
production on the profit ratio, Commerce ignored the possible deficiencies in Hitech’s
financial data—namely, the unknown impact of possible subsidies on Hitech’s profit
ratio. 	See id. at 4–5. 	As the Federal Circuit noted, however, the quantity of the
potential subsidy is an important consideration because “Hitech would be a weaker
surrogate for constructed value if government subsidies heavily distort its profits.” Mid
Continent III, 941 F.3d at 544. 	The Federal Circuit also suggested that “Commerce
might determine the amount of subsidies and adjust its calculation of constructed value
downward to eliminate the effect of the subsidies.” 	Id. Commerce, however, found that
“there is no evidence on the record for the amount of the subsidy with which to adjust
[constructed value] profit.” Second Remand Results at 13.
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While the finding that Hitech’s subsidies are not quantifiable and therefore cannot
be offset may be reasonable, 9 this finding fails to address how Commerce could make a
determination that Hitech’s financial statements are more suitable for use than
Sundram’s when the problems with Hitech’s financial statements cannot be quantified.
In other words, Commerce failed to explain why Sundram’s non-comparable
merchandise was a more significant issue than Hitech’s unquantifiable evidence of
subsidies. 	Accordingly, Commerce’s reasoning regarding the superiority of Hitech’s
statements was not supported by substantial evidence. 10
Because Commerce failed to explain the difference between this case and Steel
Wire Hangers From China, where Hitech’s financial statements were disregarded
because of evidence of subsidies, and also failed to explain how Hitech’s financial
9 Commerce acknowledged its practice of making adjustments to general and
administrative expenses to eliminate subsidy values from its calculations in market
economy cases. 	Second Remand Results at 6–7, 13. Commerce went on to find that,
because there is no evidence regarding the amount of any subsidy, it cannot make
similar adjustments to Hitech’s financial statements. 	Id. at 13.
While it may be reasonable for Commerce to find that it cannot adjust Hitech’s
financial statements to address any potential subsidies, Oman Fasteners correctly
distinguishes those market-economy cases from the present situation. 	See Pl.’s Opp’n
Cmts. at 10. In each cited case, Commerce was adjusting the respondent’s own
financial statements to take account of subsidies received by that respondent. 	See id.
In such cases, Commerce had the benefit of being able to obtain substantially more
information from the respondent than from a third-country substitute company. In
substitute cases such as this one, Commerce must “make do with publicly available
information regarding [substitutes] proffered by the parties,” as highlighted by Oman
Fasteners. 	Id. at 10. Thus, Commerce should reconsider and further address the
relevance of any potential adjustment to Hitech’s financial statements on remand.
10 The court also notes that Commerce provided no reasoning as to why it limited its
comparative analysis to Hitech and Sundram. While Commerce had rejected other
potential financial statements earlier in its analysis, Commerce did not directly consider
whether the deficiencies of those financial statements were more or less significant than
the deficiencies of Hitech’s financial statements. 	While there may be circumstances in
which Commerce may conduct such an iterative analysis, Commerce has not
acknowledged or justified such an approach in this case.
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statements are more suitable than Sundram’s given the unquantifiable nature of
Hitech’s potential subsidies, Commerce’s findings are not supported by substantial
evidence and are not in accordance with law.
C ONCLUSION
On the basis of the above analysis, the court remands Commerce’s Second
Remand Results for reconsideration and further explanation of the choice of Hitech’s
financial statements for determining constructed value profit, consistent with this opinion
and that of the Federal Circuit in Mid Continent III, 941 F.3d 530.
To the extent that Commerce wishes to rely on Hitech’s financial statements, the
agency must seriously engage with the possible inclusion of subsidies in those
statements. 	Specifically, Commerce must address why the above quoted language in
the financial statements is sufficient to be considered “evidence of a subsidy” in Steel
Wire Garment Hangers From China yet may be ignored in this case. If Commerce
accepts that the statement raises a suspicion of subsidization in this case, Commerce
must explain why it is reasonable nevertheless to disregard that suspicion here and
continue to rely on Hitech’s financial statements. 	If Commerce reconsiders its
comparative analysis between Hitech’s and Sundram’s financial statements, it must
address whether and, if so, why, the financial statements with a potential subsidy is
preferable to one with a limited percentage of comparable merchandise production,
given that both would seem to be impacted by factors not related to the production and
sale of comparable merchandise. 	Commerce must also address whether a comparative
analysis inclusive of the other financial statements on the record is appropriate.
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To be clear, the court does not seek to impose a particular result on Commerce;
however, a serious analysis of any deficiencies in the various data sources before the
agency is required before Commerce’s conclusions may be sustained. 	Should
Commerce find that Hitech’s financial statements contain deficiencies requiring the
agency to engage in a more expansive comparative analysis of its potential data
sources, the agency may reconsider any such data source on the record. Similarly,
while the agency is not required to reopen the record, such a decision is within the
agency’s discretion if it determines that reopening would provide the most reasonable
path forward.
O RDER
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Second Remand Results are remanded for further
reconsideration and explanation consistent with this opinion and that of the Federal
Circuit in Mid Continent III, 941 F.3d 530; it is further
ORDERED that Commerce shall file its remand redetermination on or before
March 22, 2022; it is further
ORDERED that subsequent proceedings shall be governed by USCIT Rule
56.2(h); and it is further
ORDERED that any comments or responsive comments must not exceed 4,000
words.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated: December 22, 2021
New York, New York
Case 1:15-cv-00214-MAB Document 147 Filed 12/22/21 Page 16 of 16