NEXTEEL Co., Ltd. v. United States

Slip Op. 21-132
UNITED STATES COURT OF INTERNATIONAL TRADE
NEXTEEL CO., LTD ,
Plaintiff,
HYUNDAI STEEL COMPANY and
SEAH STEEL CORPORATION,
Consolidated Plaintiffs,
and
HYUNDAI STEEL COMPANY,
Plaintiff-Intervenor,
v.
UNITED STATES,
Defendant,
and
WHEATLAND TUBE COMPANY and
NUCOR TUBULAR PRODUCTS INC.,
Defendant-Intervenors.
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 20-03868
OPINION AND ORDER
[Remanding the final results by the U.S. Department of Commerce following the
2017–2018 administrative review of the antidumping duty order on circular welded
non-alloy steel pipe from the Republic of Korea.]
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 1 of 19

Consol. Court No. 20-03868 	Page 2
Dated: September 27, 2021
J. David Park, Henry D. Almond, Daniel R. Wilson, Leslie C. Bailey, and Kang
Woo Lee, Arnold & Porter Kaye Scholer LLP, of Washington, D.C., for Plaintiff
NEXTEEL Co., Ltd.
Jarrod M. Goldfeder and Robert G. Gosselink, Trade Pacific PLLC, of
Washington, D.C., for Consolidated Plaintiff and Plaintiff-Intervenor Hyundai
Steel Company.
Jeffrey M. Winton, Michael J. Chapman, Amrietha Nellan, and Vi N. Mai, Winton
& Chapman PLLC, of Washington, D.C., for Consolidated Plaintiff SeAH Steel
Corporation.
Robert R. Kiepura, Trial Attorney, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, D.C., for Defendant United States.
With him on the brief were Brian M. Boynton, Acting Assistant Attorney General,
Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of
counsel on the brief was Jonzachary Forbes, Attorney, Office of the Chief Counsel
for Trade Enforcement & Compliance, U.S. Department of Commerce.
Roger B. Schagrin and Elizabeth J. Drake, Schagrin Associates, of Washington,
D.C., for Defendant-Intervenor Wheatland Tube Company.
Alan H. Price, Robert E. DeFrancesco, III, and Cynthia C. Galvez, Wiley Rein
LLP, of Washington, D.C., for Defendant-Intervenor Nucor Tubular Products Inc.
Choe-Groves, Judge: Plaintiff NEXTEEL Co., Ltd. (“NEXTEEL”),
Plaintiff-Intervenor and Consolidated Plaintiff Hyundai Steel Company (“Hyundai
Steel”), and Consolidated Plaintiff SeAH Steel Corporation (“SeAH”),
(collectively, “Plaintiffs”), challenge the final results in the 2017–2018
administrative review of the antidumping duty order covering circular welded non-
alloy steel pipe (“CWP”) from the Republic of Korea (“Korea”). Circular Welded
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 2 of 19

Consol. Court No. 20-03868 	Page 3
Non-Alloy Steel Pipe from the Republic of Korea (“Final Results”), 85 Fed. Reg.
71,055 (Dep’t of Commerce Nov. 6, 2020) (final results of antidumping duty
admin. review; 2017–2018), and accompanying Issues & Decisions Mem. for the
Final Results of the 2017–2018 Admin. Review of the Antidumping Duty Order on
Circular Non-Alloy Steel Pipe from the Republic of Korea, ECF No. 25-5 (“Final
IDM”). Before the Court are Plaintiffs’ motions for judgment on the agency
record. Mot. Pl. [SeAH] J. Agency R., ECF No. 36; Br. [SeAH] Supp. Rule 56.2
Mot. J. Agency R., ECF No. 36-1 (“SeAH’s Br.”); Rule 56.2 Mot. J. Agency R.
[NEXTEEL], ECF Nos. 37, 38; Mem. Supp. Pl. [NEXTEEL] Rule 56.2 Mot. J.
Upon Agency R., ECF Nos. 37-1, 38-1 (“NEXTEEL’s Br.”); [Hyundai Steel] Rule
56.2 Mot. J. Agency R., ECF No. 39; Mem. Supp. Mot. [Hyundai Steel] J. Agency
R., ECF No. 39-1 (“Hyundai Steel’s Br.”).
Defendant United States (“Defendant”) responded. Def.’s Resp. Pls.’ Mots.
J. on the Agency R., ECF No. 40 (“Defendant’s Response” or “Def.’s Resp.”).
Defendant-Intervenors Wheatland Tube Company (“Wheatland”) and Nucor
Tubular Products Inc. (collectively, “Defendant-Intervenors”) responded jointly.
Resp. Br. [Def.-Intervs.], ECF No. 41 (“Defendant-Intervenors’ Response” or
“Def.-Intervs.’ Resp.”).
NEXTEEL and Hyundai Steel replied to Defendant’s Response and
Defendant-Intervenors’ Response. Reply Br. Supp. Pl. [NEXTEEL] Rule 56.2
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 3 of 19

Consol. Court No. 20-03868 	Page 4
Mot. for J. upon the Agency R., ECF No. 43; Reply Br. of Consol. Pl. & Pl.-
Interv., [Hyundai Steel], ECF No. 44. For the following reasons, the Court
remands the Final Results.
ISSUES PRESENTED
The Court reviews the following issues:
1. 	Whether Commerce’s particular market situation adjustment to the
cost of production when conducting a sales-below-cost test is in
accordance with the law; and
2. 	Whether Commerce’s particular market situation determination is in
accordance with the law.
BACKGROUND
Commerce initiated this administrative review and selected NEXTEEL and
Husteel Co., Ltd. (“Husteel”) as mandatory respondents. Decision Mem. for the
Prelim. Results of Antidumping Duty Admin. Review: Circular Welded Non-Alloy
Steel Pipe from the Republic of Korea: 2017–2018 (Jan. 9, 2020) (“Prelim. DM”)
at 1, PR 203. 1 Wheatland submitted a particular market situation allegation
(“Petition”). Id. at 9. Commerce calculated preliminary dumping margins of
31.64% for NEXTEEL, 5.11% for Husteel, and an all-others rate of 23.74%, which
1 Citations to the administrative record reflect the public record (“PR”) document
numbers.
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 4 of 19

Consol. Court No. 20-03868 	Page 5
applied to Hyundai Steel and SeAH. Circular Welded Non-Alloy Steel Pipe from
the Republic of Korea (“Preliminary Results”), 85 Fed. Reg. 2719 (Dep’t of
Commerce Jan. 16, 2020) (prelim. results of antidumping duty admin. review;
2017–2018).
Commerce determined that a particular market situation existed in Korea
that distorted the cost of production of CWP, and applied an upward adjustment to
the cost of production based on a regression analysis submitted by Wheatland in
the Petition (“regression analysis”). Prelim. DM at 12–13. The regression analysis
was submitted with the Petition and “quantifie[d] the impact of global steel excess
capacity on the price of [hot-rolled steel coil] in Korea, and derive[d] a
corresponding percentage adjustment factor that . . . account[ed] for the distortions
inherent to an overcapacity-driven [particular market situation].” Id. at 10.
Commerce conducted a sales-below-cost test and disregarded certain sales made at
prices below the cost of production. Id. at 17–18. Commerce calculated normal
value from the remaining above-cost home market sales for mandatory respondents
NEXTEEL and Husteel. Id. at 18.
In the Final Results, Commerce used the methodology applied in the
Preliminary Results but corrected the amount of the particular market situation
adjustment to the cost of production for costs related only to hot-rolled steel coil
instead of “all direct material costs.” Final IDM at 3. Commerce assigned
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 5 of 19

Consol. Court No. 20-03868 	Page 6
weighted-average dumping margins of 27.28% for NEXTEEL, 4.92% for Husteel,
and an all-others rate of 21.01%, which applied to Hyundai Steel and SeAH. Final
Results, 85 Fed. Reg. at 71,056.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final results of an administrative review of an antidumping duty order. The Court
shall hold unlawful any determination found to be unsupported by substantial
record evidence or otherwise not in accordance with the law. 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
I. 	Particular Market Situation
A. 	Governing Law
Commerce determines antidumping duties by calculating the amount by
which the normal value of subject merchandise exceeds the export price or the
constructed export price for the merchandise. 19 U.S.C. § 1673. When reviewing
antidumping duties in an administrative review, Commerce must determine: (1) the
normal value and export price or constructed export price of each entry of the
subject merchandise, and (2) the dumping margin for each such entry. Id.
§ 1675(a)(1)(B), (a)(2)(A). The statute dictates the steps by which Commerce may
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 6 of 19

Consol. Court No. 20-03868 	Page 7
calculate normal value “to achieve a fair comparison” with export price or
constructed export price. Id. § 1677b(a).
First, the statute specifies the methodology for Commerce to determine
which sales should be considered and disregarded in calculating normal value.
Normal value is “the price at which the foreign like product is first sold . . . in the
exporting country . . . in the ordinary course of trade.” Id. § 1677b(a)(1)(B)(i).
Sales outside the ordinary course of trade are excluded from normal value.
“Ordinary course of trade” is defined in Section 1677(15) as excluding: (1) sales
made at less than the cost of production, and (2) sales that cannot be compared
properly with the export price or constructed export price due to a particular
market situation. Id. § 1677(15)(A), (C). To determine whether “sales . . . have
been made at prices that represent less than the cost of production,” the statute
directs Commerce to conduct the sales-below-cost test. Id. § 1677b(b)(1). The
cost of production is defined by statute to include the cost of materials and
processing, amounts for selling, general, and administrative expenses, and the cost
of all containers and expenses incidental for shipment. Id. § 1677b(b)(3). Sales
that Commerce determines, by application of the sales-below-cost test, were made
at prices below the cost of production or that Commerce determines were made in
a particular market situation, are outside the ordinary course of trade and are
disregarded from the calculation of normal value. See id. § 1677b(b)(1),
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 7 of 19

Consol. Court No. 20-03868 	Page 8
(a)(1)(B)(i). “Whenever such sales are disregarded, normal value shall be based on
the remaining sales of the foreign like product in the ordinary course of trade.” Id.
§ 1677b(b)(1).
Second, when using market prices to determine normal value, Commerce
may make certain adjustments to the remaining home market prices. The statute
lists authorized adjustments for incidental shipping, delivery expenses, and direct
taxes, and for differences between the subject merchandise and foreign like
products in quantity, circumstances of sale, or level of trade. Id. § 1677b(a)(6),
(7).
Third, when using home market sales for normal value, if Commerce cannot
determine the normal value of the subject merchandise based on home market
sales, then Commerce may use qualifying third-country sales or a constructed
value as a basis for normal value. Id. § 1677b(a)(4), (a)(1)(B)(ii), (b)(1).
Constructed value represents: (1) the cost of materials and fabrication or other
processing of any kind used in producing the merchandise; (2) the actual amounts
incurred and realized for selling, general, and administrative expenses, and for
profits, in connection with the production and sales of a foreign like product, in the
ordinary course of trade, for consumption in the foreign country; and (3) the cost of
packing the subject merchandise. Id. § 1677b(e). When calculating constructed
value, if Commerce determines that a particular market situation exists “such that
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 8 of 19

Consol. Court No. 20-03868 	Page 9
the cost of materials and fabrication or other processing of any kind does not
accurately reflect the cost of production in the ordinary course of trade, [then]
[Commerce] may use . . . any other calculation methodology.” Id.
B. 	Unauthorized Adjustment to the Cost of Production for the
Sales-Below-Cost Test
For purposes of determining whether sales were made at less than cost,
Commerce adjusted the reported costs of production of hot-rolled steel coil, a
primary CWP input, based on its determination that a particular market situation in
Korea distorted the cost of hot-rolled steel coil. See Final IDM at 3, 7; Prelim. DM
at 12–13. Defendant argues that the plain language of Section 504 of the Trade
Preferences Extension Act of 2015 (“TPEA”), Pub. L. No. 114-27, § 504, 129 Stat.
385, and its legislative history “demonstrate that Commerce possesses the
discretion to adjust NEXTEEL’s [hot-rolled steel coil] input purchase prices for
calculating cost of production as part of Commerce’s sales-below costs test . . . and
establish that Commerce has discretion when [] selecting a calculation
methodology to address distortions in a particular market.” Def.’s Resp. at 26.
Plaintiffs counter that the statute permits a particular market situation adjustment
only in the course of determining constructed value, not when determining whether
home market sales were made at less than the cost of production. NEXTEEL’s Br.
at 10–23; SeAH’s Br. at 2 (incorporating NEXTEEL’s arguments); Hyundai
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 9 of 19

Consol. Court No. 20-03868 	Page 10
Steel’s Br. at 7 (incorporating NEXTEEL’s arguments). Defendant-Intervenors
contend that Commerce is authorized by Section 1677b(e)(1) to use “any other
calculation methodology,” and “[t]he fact that the authorization is contained in a
section of the statute concerning constructed value does not in itself limit the scope
of the explicit authority to use other calculation methodologies.” Def.-Intervs.’
Resp. at 7.
As the U.S. Court of International Trade has held repeatedly, the statute does
not authorize a particular market situation adjustment to the cost of production
when Commerce applies the sales-below-cost test to determine which home market
sales to exclude from the calculation of normal value. See Saha Thai Steel Pipe
Pub. Co. v. United States, 43 CIT __, __, 422 F. Supp. 3d 1363, 1368–70 (2019);
Husteel Co. v. United States, 44 CIT __, __, 426 F. Supp. 3d 1376, 1383–89
(2019); Borusan 0DQQHVPDQQ%RUX6DQD\L9H7LFDUHW$ùv. United States, 44
CIT __, __, 426 F. Supp. 3d 1395, 1411–12 (2020); Dong-A Steel Co. v. United
States, 44 CIT __, __, 475 F. Supp. 3d 1317, 1337–41 (2020); Husteel Co. v.
United States, 44 CIT __, __, 476 F. Supp. 3d 1363, 1370–73 (2020); Saha Thai
Steel Pipe Pub. Co. v. United States, 44 CIT __, __, 476 F. Supp. 3d 1378, 1382–
86 (2020); Hyundai Steel Co. v. United States, 45 CIT __, __, Slip Op. 21-88 at
10–17 (July 19, 2021).
Commerce applied an adjustment to the cost of production calculation set
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 10 of 19

Consol. Court No. 20-03868 	Page 11
forth in Section 1677b(b)(3) for purposes of the sales-below-cost test pursuant to
Section 1677b(b)(1). See Final IDM at 3, 7; Prelim. DM at 12–13. Commerce
relied erroneously on Section 504 of the TPEA for the authority to adjust the cost
of production for the sales-below-cost test. Commerce explained that:
[W]here a [particular market situation] affects the [cost of production]
of the foreign like product because it distorts the cost of inputs, it is
reasonable to conclude that such a situation may prevent a proper
comparison of the [export price] with normal value based on home
market 	prices 	just 	as 	it 	would 	when 	normal 	value 	is 	based 	on
[constructed value]. . . . 	[Section 1677b(e)] specifically includes the
term “ordinary course of trade.” Thus, the definition of that term, again,
found in [Section 1677(15)], is integral to that [particular market
situation] provision. 	Accordingly, [Commerce] disagree[s] with the
argument that Commerce cannot analyze a [particular market situation]
claim in determining whether a company’s comparison-market sale
prices were below cost, and therefore, are outside the “ordinary course
of trade.”
Final IDM at 8–9. In Commerce’s view, the amendments provide Commerce
“discretion to use ‘any other calculation methodology’ if costs are distorted by a
[particular market situation], including for the purposes of [cost of production]
under [19 U.S.C. § 1677b(b)(3)].” Id. at 10. In other words, Commerce made a
particular market situation adjustment to costs based on Section 1677b(e).
Commerce asserted that the cost-based particular market situation analysis and
alternative calculation methodology set forth in Section 1677b(e) are available
whether Commerce bases normal value on home market sales or constructed value.
Commerce also asserted that the sales-below-cost test set forth in Section
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 11 of 19

Consol. Court No. 20-03868 	Page 12
1677b(b)(1), by relying on the phrase “ordinary course of trade” defined in Section
1677(15)(C) as excluding sales made in a particular market situation, authorizes
Commerce to conduct the particular market situation analysis and adjust costs
based on Sections 1677b(b)(1) and 1677(15)(C). Id. at 8–10.
Section 504 of the TPEA amended the statutory provisions governing
constructed value. The amendment authorizes Commerce to use alternative cost
methodologies when computing constructed value after making a particular market
situation determination. The amended language provides:
For purposes of paragraph (1) [in reference to calculating constructed
value], if a particular market situation exists such that the cost of
materials and fabrication or other processing of any kind does not
accurately reflect the cost of production in the ordinary course of trade,
the administering authority [Commerce] may use another calculation
methodology under this part or any other calculation methodology.
19 U.S.C. § 1677b(e). The amended statute gives Commerce discretion to adjust
the cost of production calculation methodology when determining constructed
value if Commerce determines that a particular market situation exists. See id.
Commerce cannot rely on Section 1677b(e) when Commerce bases normal value
on home market sales. No part of the statute allows Commerce to use any other
methodology when market sales are used for normal value. See Saha Thai Steel
Pipe Pub. Co., 43 CIT at __, 422 F. Supp. 3d at 1368–70; Husteel Co., 44 CIT at
__, 426 F. Supp. 3d at 1383–89; Borusan, 44 CIT at __, 426 F. Supp. 3d at 1411–
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 12 of 19

Consol. Court No. 20-03868 	Page 13
12; Dong-A Steel Co., 44 CIT at __, 475 F. Supp. 3d at 1340–41; Husteel, 44 CIT
at __, 476 F. Supp. 3d at 1371; Saha Thai Steel Pipe Pub. Co., 44 CIT at __, 476 F.
Supp. 3d at 1384; Hyundai Steel, 45 CIT at __, Slip Op. at 13. The “any other
methodology” language is reserved solely for when normal value is determined by
constructed value. Husteel Co., 44 CIT at __, 426 F. Supp. 3d at 1388.
With respect to Sections 1677b(b)(1) and 1677(15)(C), Defendant argues
that Section 1677b(b)(1)’s reference to the phrase “ordinary course of trade”
authorizes Commerce to conduct a cost-based particular market situation analysis
and make an adjustment in the course of the sales-below-cost test. Def.’s Resp. at
27.
Section 1677b(b)(1) provides:
(b) Sales at less than cost of production
(1) Determination; sales disregarded
Whenever the administering authority has reasonable grounds to
believe or suspect that sales of the foreign like product under
consideration for the determination of normal value have been
made at prices which represent less than the cost of production
of that product, the administering authority shall determine
whether, in fact, such sales were made at less than the cost of
production. If the administering authority determines that sales
made at less than the cost of production—
(A) 	have been made within an extended period of time
in substantial quantities, and
(B) 	were not at prices which permit recovery of all costs
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 13 of 19

Consol. Court No. 20-03868 	Page 14
within a reasonable period of time,
such sales may be disregarded in the determination of normal
value. Whenever such sales are disregarded, normal value shall
be based on the remaining sales of the foreign like product in the
ordinary course of trade. If no sales made in the ordinary course
of 	trade 	remain, 	the 	normal 	value 	shall 	be 	based 	on 	the
constructed value of the merchandise.
19 U.S.C. § 1677b(b)(1). Section 1677b(b)(1) sets forth the sales-below-cost test
based on the calculation specified in Section 1677b(b)(3) to confirm that sales
were made at less than the cost of production. Within Section 1677b(b) for “Sales
at less than cost of production,” the subsection 1677b(b)(1) for “Determination;
sales disregarded” authorizes Commerce to disregard those below-cost sales as
outside the ordinary course of trade. Id.
The plain language of the reference to “ordinary course of trade” provides
that sales on which normal value are based must be in the ordinary course of trade.
Id. § 1677b(b)(1), (a)(1)(B)(i). Sales made at less than cost, between affiliates, and
in a particular market situation are excluded from the definition of “ordinary
course of trade” in Section 1677(15). Thus, sales in those three categories are
disregarded for purposes of calculating normal value based on market sales.
Nothing in the statute grants Commerce the authority to modify the sales-below-
cost test to permit a particular market situation analysis or adjustment, and the
specificity of the sales-below-cost test leaves no ambiguity. See Conn. Nat’l Bank
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 14 of 19

Consol. Court No. 20-03868 	Page 15
v. Germain, 503 U.S. 249, 253–54 (1992) (“[C]ourts must presume that a
legislature says in a statute what it means and means in a statute what it says
there.”).
In sum, although Section 504 of the TPEA amended Section 1677b(e) for
“Constructed value” to grant Commerce the discretion to use an alternative
calculation methodology, and Section 1677(15) for “Ordinary course of trade” to
grant Commerce an additional ground on which it may disregard sales from the
normal value calculation when using home market sales, the Section 504
amendment did not amend Section 1677b(b), which sets out the calculation of the
cost of production for the sales-below-cost test to determine whether and which
sales should be disregarded as outside the ordinary course of trade when normal
value is based on home market sales. “[W]here ‘Congress includes particular
language in one section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.’” Thomas v. Nicholson, 423 F.3d 1279, 1284
(Fed. Cir. 2005) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). Thus,
the statute authorizes Commerce to disregard certain sales when basing normal
value on home market sales, or to use an alternative calculation methodology upon
a cost-based particular market situation determination when basing normal value
on constructed value.
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 15 of 19

Consol. Court No. 20-03868 	Page 16
Commerce applied a cost-based particular market situation adjustment for
purposes of the sales-below-cost test of Section 1677b(b)(1), while basing normal
value on home market sales. The statute does not authorize Commerce to adjust
the cost of production as an alternative calculation methodology when using
normal value based on home market sales under Section 1677b(e) as claimed by
Commerce. The statute also does not authorize Commerce to adjust the cost of
production for purposes of the sales-below-cost test under Sections 1677b(b)(1)
and 1677(15)(C) as claimed by Commerce. Section 1677b(e) applies only when
Commerce bases normal value on constructed value. Because Commerce based
normal value on home market sales, not constructed value, Section 1677b(e) is
inapplicable. Nothing in Sections 1677b(b)(1) and 1677(15)(C) authorizes
Commerce to adjust the cost of production for the sales-below-cost test. The Court
concludes, therefore, that Commerce’s particular market situation adjustment to the
cost of production is not in accordance with the law. Because Commerce may not
adjust the cost of production when using normal value based on home market
sales, the Court does not consider the lawfulness or reasonableness of Commerce’s
adjustment calculation, particularly its reliance on Wheatland’s submitted
regression analysis.
C. 	Unauthorized Particular Market Situation Determination
Commerce determined that a particular market situation distorted costs
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 16 of 19

Consol. Court No. 20-03868 	Page 17
based on the totality of four factors, namely: (1) Korean subsidies of hot-rolled
steel coil; (2) Korean imports of hot-rolled steel coil from the People’s Republic of
China; (3) strategic alliances between Korean hot-rolled steel coil producers and
CWP producers; and (4) distortions in the Korean electricity market. Final IDM at
8; see also Prelim. DM at 12. Plaintiffs argue that Commerce’s particular market
situation determination is not in accordance with the law and that the record does
not support the existence of the four factors that are the basis of Commerce’s
determination. NEXTEEL’s Br. at 23–46; SeAH’s Br. at 2 (incorporating
NEXTEEL’s arguments); Hyundai Steel’s Br. at 7 (incorporating NEXTEEL’s
arguments).
Commerce based its particular market situation determination on distortions
in the cost of hot-rolled steel coil, a primary CWP input. Final IDM at 8, 14.
Commerce explained:
Section 504 of the TPEA added the concept of [particular market
situation] in the definition of the term “ordinary course of trade,” for
purposes of [constructed value] under section [1677b(e)], and through
these provisions for purposes of the [cost of production] under section
[1677b(b)(3)]. 	[Section 504] of the TPEA states that “if a particular
market situation exists such that the cost of materials and fabrication or
other processing of any kind does not accurately reflect the cost of
production in the ordinary course of trade, the administering authority
may use another calculation methodology under the subtitle or any
other calculation methodology.” Thus, under section 504 of the TPEA,
Congress has given Commerce the authority to determine whether a
[particular market situation] exists within the foreign market from
which the subject merchandise is sourced and to determine whether the
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 17 of 19

Consol. Court No. 20-03868 	Page 18
cost of materials, fabrication, or processing of such merchandise fail to
accurately reflect the [cost of production] in the ordinary course of
trade.
Final IDM at 7–8. Commerce made the particular market situation determination
under Section 1677b(e) based on the assertion that Section 1677b(e)’s reference to
“ordinary course of trade” incorporates Section 1677b(e) into the cost of
production calculation in Section 1677b(b)(3). Id. at 7.
As discussed in the previous section, Section 1677b(e) applies expressly
when Commerce bases normal value on constructed value. 19 U.S.C. § 1677b(e).
Nothing in the statute can be read to authorize a cost-based particular market
situation determination when Commerce bases normal value on home market sales.
The statute does not provide for a cost-based particular market situation analysis
when using home market sales to calculate normal value. Commerce made an
unlawful particular market situation cost-based determination in this case, while
basing normal value on home market sales. The Court concludes that Commerce’s
cost-based particular market situation determination is not in accordance with the
law, and the Court thus does not consider whether Commerce’s particular market
situation determination is supported by substantial evidence on the record.
CONCLUSION
The Court concludes that Commerce’s cost-based particular market situation
determination and subsequent adjustment are not in accordance with the law.
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 18 of 19

Consol. Court No. 20-03868 	Page 19
Accordingly, it is hereby
ORDERED that the Final Results are remanded for Commerce to
reconsider its particular market situation determination and adjustment in light of
this opinion; and it is further
ORDERED that this case will proceed according to the following schedule:
(1) 	Commerce shall file remand results on or before October 29,
2021;
(2) 	Commerce shall file the administrative record on or before
November 12, 2021;
(3) 	Comments in opposition to the remand results shall be filed on
or before December 3, 2021;
(4) 	Comments in support of the remand results shall be filed on or
before December 17, 2021; and
(5) 	The joint appendix shall be filed on or before December 30,
2021.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	September 27, 2021
New York, New York
Case 1:20-cv-03868-JCG Document 48 Filed 09/27/21 Page 19 of 19