Yantai Xinke Steel Structure Co. v. United States , 2014 CIT 38 ( 2014 )


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  •                                         Slip Op. 14-38
    UNITED STATES COURT OF INTERNATIONAL TRADE
    ___________________________________
    :
    YANTAI XINKE STEEL STRUCTURE :
    CO., LTD.,                          :
    :
    Plaintiff,                    :
    :
    and           :              Before: Richard K. Eaton, Judge
    :
    NINGBO JIULONG MACHINERY CO., :                    Court No. 10-00240
    LTD. and NINGBO HAITIAN             :
    INTERNATIONAL CO., LTD.,            :
    :
    Plaintiff-Intervenors,        :
    :
    v.            :
    :
    UNITED STATES,                      :
    :
    Defendant,                    :
    :
    and           :
    :
    ALABAMA METAL INDUS.                :
    CORP. and FISHER AND LUDLOW,        :
    :
    Defendant-Intervenors.        :
    ___________________________________ :
    OPINION
    [The Department of Commerce’s Final Results of Redetermination are sustained.]
    Dated: April 9, 2014
    David J. Craven, Riggle & Craven, of Chicago, IL, argued for plaintiff.
    Court No. 10-00240                                                                            Page 2
    Michael D. Snyder, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
    Department of Justice, of Washington, D.C., argued for defendant. With him on the brief were
    Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin
    E. White, Jr., Assistant Director. Of counsel on the brief was Scott D. McBride, Senior Attorney,
    Office of the Chief Counsel for Import Administration, United States Department of Commerce,
    of Washington, D.C.
    Timothy C. Brightbill, Wiley Rein, LLP of Washington, D.C., argued for defendant-
    intervenors. With him on the brief were Alan H. Price and Christopher B. Weld.
    EATON, Judge: Before the court are the Department of Commerce’s (“the
    Department” or “Commerce”) final results following remand of its antidumping investigation of
    certain steel grating exported from the People’s Republic of China (“PRC”) made pursuant to the
    court’s order issued in Yantai Xinke Steel Structure Co. v. United States. See Yantai Xinke Steel
    Structure Co. v. United States, 36 CIT __, Slip Op. 12-95 (July 18, 2012) (“Yantai I”); Final
    Results of Redetermination Pursuant to Ct. Remand (Dep’t of Commerce July 18, 2012) (ECF
    Dkt. No. 83) (“Remand Results”).
    On remand, Commerce was instructed to (1) reexamine the surrogate value data on the
    record, and determine a more accurate antidumping margin for separate rate respondents Yantai
    Xinke Steel Structure Co., Ltd. (“Xinke” or “plaintiff”) and Ningbo Haitian International Co.,
    Ltd. (“Haitian”) using surrogate value information that was more contemporaneous with the
    period of investigation (“POI”); 1 (2) “determine a separate rate for [mandatory respondent
    Ningbo Jiulong Machinery Manufacturing Co., Ltd. (‘Jiulong’)] that is corroborated as required
    by 19 U.S.C. § 1677e(c) [(2006)];” and (3) “explain how the discrepancies between Jiulong’s
    supplier mill test certificates [submitted to Commerce] and those the company prepared for its
    customers justified using facts available or [adverse facts available (‘AFA’)] to determine the
    quantity of Jiulong’s U.S. sales.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 12, 30. The court
    1
    The POI was October 1, 2008 through March 31, 2009. Yantai I, 36 CIT at __,
    Slip Op. 12-95, at 2.
    Court No. 10-00240                                                                              Page 3
    also permitted the Department to “reopen the record to solicit any information it determine[d] to
    be necessary to make its determination.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 30.
    In its Final Determination, Commerce assigned a separate antidumping duty margin of
    136.76 percent for Xinke and Haitian, using the average of the margins alleged in the Petition, 2
    and assigned mandatory respondent Jiulong the PRC-wide rate of 145.18 percent utilizing AFA.
    Certain Steel Grating From the PRC, 
    75 Fed. Reg. 32,366
    , 32,368, 32,369 (Dep’t of Commerce
    June 8, 2010) (final determination of sales at less than fair value), and the accompanying Issues
    & Dec. Mem., A-570-947 (Dep’t of Commerce May 28, 2010) (P.R. Doc. 229) (“Issues & Dec.
    Mem.”) (collectively, the “Final Determination”).
    In the Remand Results, the Department “complied under protest with the [c]ourt’s order .
    . . [w]ith respect to the calculation of a separate rate for Xinke and Haitian, . . . and reviewed the
    [surrogate value] data placed on the administrative record after the initiation of the
    investigation.” Remand Results at 2. As instructed by the court, Commerce used more
    contemporaneous surrogate values data from the record to calculate a revised weighted-average
    dumping margin of 38.16 percent for separate rate respondents Xinke and Haitian. Remand
    Results at 4, 7. Additionally, the Department determined a separate rate for Jiulong. Remand
    Results at 8–9. Despite assigning Jiulong a separate rate, however, the rate itself remained
    unchanged at “145.18 percent, the highest rate alleged from the [P]etition.” 3 Remand Results at
    8; Final Determination, 75 Fed. Reg. at 32,369. The Department also provided additional
    2
    As will be explained in greater detail below, Commerce made adjustments to the
    margins before averaging them.
    3
    Based on data supplied by defendant-intervenors in the Petition, “the estimated
    dumping margins for [certain steel grating] from the PRC range[d] from 131.51 percent to
    145.18 percent.” Certain Steel Grating from the PRC, 
    74 Fed. Reg. 30,273
    , 30,276–77 (Dep’t of
    Commerce June 25, 2009) (initiation of antidumping duty investigation) (“Notice of Initiation”).
    Court No. 10-00240                                                                          Page 4
    explanation as to why Jiulong’s defective “mill test certificates prevented [Commerce] from
    accurately determining the quantity of Jiulong’s U.S. sales,” and why this submission warranted
    the application of AFA to the quantity of Jiulong’s U.S. sales. Remand Results at 11, 36.
    Plaintiff Xinke and defendant-intervenors, Alabama Metal Industries Corporation and
    Fisher and Ludlow (collectively, “defendant-intervenors”), 4 filed comments to the Remand
    Results. For the following reasons, the court holds that Commerce’s determination of a margin
    for Xinke and Haitian, and the separate AFA rate for Jiulong are supported by substantial
    evidence and otherwise in accordance with law. In addition, Commerce has adequately
    explained why the lack of reliable mill test certificates prevented it from accurately determining
    the quantity of Jiulong’s U.S. sales and warranted the use of AFA with respect to Jiulong’s sales
    volume. Thus, the Remand Results are sustained.
    STANDARD OF REVIEW
    “The court shall hold unlawful any determination, finding, or conclusion found . . . to be
    unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19
    U.S.C. § 1516a(b)(1)(B)(i) (2006). “The results of a redetermination pursuant to court remand
    are also reviewed for compliance with the court’s remand order.” Xinjiamei Furniture
    (Zhangzhou) Co. v. United States, 38 CIT __, __, Slip Op. 14-17 (Feb. 18, 2014) (citation
    omitted) (internal quotation marks omitted).
    4
    Defendant-intervenors are domestic producers of steel grating.
    Court No. 10-00240                                                                            Page 5
    DISCUSSION
    I.     BACKGROUND
    In 2009, Commerce initiated an investigation of producers of steel grating from the PRC
    to determine whether the subject merchandise was being sold in the United States at less than fair
    value. See Notice of Initiation, 74 Fed. Reg. at 30,273–74. As part of its investigation,
    Commerce selected two mandatory respondents, Shanghai DAHE Grating Co., Ltd. (“Shanghai
    DAHE”) and Jiulong. See Certain Steel Grating From the PRC, 
    75 Fed. Reg. 847
    , 847 (Dep’t of
    Commerce Jan. 6, 2010) (prelim. determination of sales at less than fair value and postponement
    of final determination) (“Preliminary Determination”). Shanghai DAHE did not respond to
    Commerce’s questionnaires, nor did it otherwise participate in the investigation. Preliminary
    Determination, 75 Fed. Reg. at 847. As a result, Jiulong was the sole mandatory respondent. 5
    See Preliminary Determination, 75 Fed. Reg. at 847, 851.
    In the Final Determination, the Department found that Jiulong had supplied inaccurate
    mill test certificates to Commerce, thereby withholding requested information, impeding the less
    than fair value investigation, providing information that could not be verified, and failing to
    cooperate to the best of its ability. See Final Determination, 75 Fed. Reg. at 32,367. Commerce
    therefore assigned Jiulong a rate based on AFA. Final Determination, 75 Fed. Reg. at 32,367.
    Commerce further determined that, as a result of Jiulong’s inaccurate mill test certificates, it
    could not rely on the information provided by Jiulong in its separate rate questionnaire and,
    consequently, as an adverse inference, found that Jiulong was part of the PRC-wide entity. Final
    Determination, 75 Fed. Reg. at 32,367. Accordingly, the Department assigned Jiulong the PRC-
    wide rate of 145.18 percent. Final Determination, 75 Fed. Reg. at 32,369.
    5
    As noted in Yantai I, although Commerce did not select a mandatory respondent
    to replace Shanghai DAHE, no party challenged this decision. Yantai I, 36 CIT at __, Slip Op.
    12-95, at 3 n.3.
    Court No. 10-00240                                                                              Page 6
    Because Jiulong was the sole mandatory respondent, and its rate was determined using
    AFA, Commerce, pursuant to its regulations, decided to use a “reasonable method” to determine
    the rates of the non-mandatory respondents. Issues & Dec. Mem. at 33; see 19 U.S.C. §
    1673d(c)(5)(B) (2006). Specifically, Commerce determined a rate of 136.76 percent for separate
    rate respondents Xinke and Haitian, based on a simple average of the five dumping margins
    alleged in defendant-intervenors’ Petition seeking the initiation of the less than fair value
    investigation. Final Determination, 75 Fed. Reg. at 32,368.
    Xinke, Haitian, and Jiulong, each exporters of steel grating from the PRC, challenged
    Commerce’s actions in Yantai I. In particular, Xinke objected to Commerce’s use of a simple
    average of the margins alleged in the Petition to determine the margins for the non-mandatory
    respondents. See Yantai I, 36 CIT at __, Slip Op. 12-95, at 8. Xinke “argued that the normal
    value [of grated steel exports from the PRC used to calculate the Petition rates] ‘should be
    recalculated using the [surrogate values] for financial ratios, material inputs, energy, and packing
    materials that ha[d] been submitted for the record in this case.” Id. at __, Slip Op. 12-95, at 8
    (quoting Issues & Dec. Mem. at 32). Xinke claimed that Commerce ignored more
    contemporaneous data, specific to the POI, that Xinke had placed on the record during the
    investigation, from which the Department could have adjusted the Petition rates and thus,
    determined a more accurate antidumping margin for the non-mandatory respondents. Id. at __,
    Slip Op. 12-95, at 8.
    In addressing this argument, the court found that the Department “had record evidence
    before it that may well have assisted in determining an accurate rate for the [s]eparate [r]ate
    [r]espondents[, Xinke and Haitian].” Id. at __, Slip Op. 12-95, at 12. The court elaborated that,
    “[f]or instance, it appears that Commerce relied on [P]etition rates that were calculated using
    Court No. 10-00240                                                                                Page 7
    financial ratios for the year prior to the POI, when financials for the POI were on the record.” Id.
    Thus, the court concluded that the Department’s “decision to ignore readily available and
    possibly more reliable surrogate value information when assigning an antidumping duty rate was
    not a reasonable one.” Id. The case was then remanded to the Department “to determine
    whether a more accurate antidumping margin could be assigned based on the surrogate data
    submitted during the investigation.” Id.
    In addition, Jiulong challenged Commerce’s determination regarding the quantity of
    Jiulong’s U.S. sales in the Final Determination. Id. at __, Slip Op. 12-95, at 23. In particular,
    Jiulong objected to the application of facts available and AFA to determine the quantity of its
    U.S. sales based on the unreliability of its supplier mill test certificates. The court agreed,
    finding that “[i]t [was] unclear . . . why the lack of reliable mill test certificates would prevent
    the Department from accurately determining the quantity of Jiulong’s U.S. sales.” Id. The court
    consequently remanded the issue to Commerce, seeking further clarification from the
    Department as to “how the discrepancies between Jiulong’s supplier mill test certificates and
    those the company prepared for its customers justified using facts available or AFA to determine
    the quantity of Jiulong’s U.S. sales.” Id. at __, Slip Op. 12-95, at 30.
    Further, Jiulong challenged Commerce’s denial of separate rate status without
    considering Jiulong’s questionnaire responses concerning its independence from Chinese
    government control. See id. at __, Slip Op. 12-95, at 26. In doing so, Jiulong argued that it was
    improper to extend the finding that its mill test certificates were unreliable, to a finding that the
    responses provided in the separate rate questionnaire were unreliable as well. See id. The court
    agreed, holding that “Commerce ha[d] made no finding that Jiulong’s questionnaire responses
    concerning its separate rate status were deficient in any respect. . . . Accordingly, the Department
    Court No. 10-00240                                                                           Page 8
    is required to determine Jiulong’s separate rate based on the company’s questionnaire
    responses.” Id. at __, Slip Op. 12-95, at 27.
    II.    REMAND RESULTS – UNCONTESTED DETERMINATIONS
    A.      Relevancy of Mill Test Certificates to Quantity of U.S. Sales
    In the Remand Results, Commerce addressed the adequacy of the inaccurate mill test
    certificates to provide the substantial evidence needed to support the use of facts available and
    AFA when determining the volume of Jiulong’s U.S. sales. Remand Results at 9–11. Jiulong’s
    mill test certificates were requested by Commerce during its investigation as a means of
    establishing the type of hot-rolled steel inputs used to manufacture Jiulong’s steel grating “in
    order to properly value the company’s factors of production and accurately calculate dumping
    margins.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 22. In the Final Determination, the
    Department found that Jiulong had provided inaccurate mill test certificates to Commerce, and
    the Department was therefore unable to verify the type of steel inputs used by Jiulong in the
    manufacturing of its steel grating. See Issues & Dec. Mem. at 12–13. “Without a reliable mill
    test certificate on the record,” the Department explained, Commerce “d[id] not have sufficient
    information on the record to know whether or not . . . Jiulong ha[d] correctly reported U.S. sales
    models . . . and further determine whether each U.S. sales observation [was] correctly reported
    with respect to quantity.” Issues & Dec. Mem. at 13 (emphasis added). It was the finding with
    respect to quantity that the court questioned in Yantai I.
    On remand, Commerce clarified that, in constructing comparison U.S. prices, the
    physical characteristics of the product determine both the price and quantity used to calculate a
    weighted average. Remand Results at 10–11 (“The inaccuracy of the reported steel-type
    Court No. 10-00240                                                                                 Page 9
    physical characteristic is significant. . . . If . . . one of the physical characteristics has been falsely
    reported, . . . [t]his will result in not only an inaccurate average U.S. price, but also an inaccurate
    U.S. sales quantity for the averaging group [of sales], which is used when aggregating
    comparison results to calculate the weighted-average dumping margin for Jiulong.”). In other
    words, without reliable mill test certificates, the Department was unable to determine the type of
    steel used to manufacture Jiulong’s steel grating merchandise sold in the United States. This
    affected Commerce’s ability to determine quantity, because products with different principal
    physical characteristics could be erroneously grouped together and thus wrongly accounted for.
    This erroneous grouping would lead to an inaccurate representation of U.S. sales and an
    inaccurate dumping margin. Because Commerce’s explanation is reasonable and because no
    party contests this finding, it is sustained.
    B.     Jiulong’s Separate Rate Status
    In compliance with the court’s order in Yantai I, on remand the Department reexamined
    the information in Jiulong’s separate rate response without consideration of Jiulong’s submission
    of inaccurate supplier mill test certificates. Remand Results at 8. Finding “Jiulong’s separate
    rate information to be complete,” the Department “grant[ed] Jiulong a separate rate in
    accordance with the [c]ourt’s direction.” Remand Results at 8. As noted, despite assigning
    Jiulong a separate rate on remand, based on the application of AFA, Jiulong’s antidumping duty
    rate remained unchanged at 145.18 percent, the highest margin from the Petition, as revised by
    the Department through supplemental questionnaires. Remand Results at 8; Issues & Dec. Mem.
    at 18.
    Court No. 10-00240                                                                          Page 10
    The determination to grant Jiulong a separate rate has not been contested, and based on
    the reasonable explanation found in the Remand Results, the court sustains it.
    III.   THE SEPARATE RATE ASSIGNED TO JIULONG IS REASONABLE
    In accordance with the court’s direction to corroborate the separate rate assigned to
    Jiulong in the Remand Results, Commerce “determined that the rate of 145.18 percent, the
    highest rate alleged from the [P]etition, [as revised through supplemental questionnaires, was]
    both reliable and relevant to Jiulong’s own reported commercial experience, and, therefore . . .
    corroborated pursuant to [19 U.S.C. § 1677e(c)].” Remand Results at 8. “In order to corroborate
    this rate, the Department . . . found that the 145.18 percent rate from the [P]etition [was] lower
    than three [of the five] product-specific dumping margins, and [was] thus within the range of the
    product-specific dumping margins from the [P]reliminary [D]etermination for Jiulong’s sales of
    steel grating during the POI.” Remand Results at 8–9.
    The Department explained further that, because Jiulong had provided “falsified
    documents regarding its hot-rolled steel inputs during the investigation,” it was reasonable to
    presume that had Jiulong reported accurate information to the Department, “dumping margins
    would have been even higher than those calculated in the Preliminary Determination based on
    Jiulong’s reported, falsified data.” See Remand Results at 9. In other words, Commerce inferred
    from Jiulong’s submission of inaccurate mill test certificates that the submission of accurate
    documents would have resulted in the calculation of a higher dumping margin.
    Because Jiulong has not contested the assignment of the 145.18 percent rate, and because
    the rate is lower than three of five of the price-to-normal value dumping margins used in the
    Petition, the court finds the rate reasonable and therefore sustains the assignment of the rate. To
    Court No. 10-00240                                                                             Page 11
    the extent the Department rests its determination to use the 145.18 percent rate on the mill test
    certificates, however, it stretches a point. That is, the circumstances surrounding the submission
    of the questionable mill test certificates do not necessarily warrant an inference that Jiulong
    knowingly submitted them in order to obtain a lower rate. See Yantai I, 36 CIT at __, Slip Op.
    12-95, at 18–22.
    IV.    REMAND RESULTS – CONTESTED DETERMINATIONS
    A. Commerce’s Selection of Wide-Gauge Steel Coils Is Sustained
    In the Final Determination, because Jiulong was the sole mandatory respondent, and its
    rate was determined using AFA, Commerce sought to use a “reasonable method” to determine
    the rates of the non-mandatory respondents pursuant to 19 U.S.C. § 1673d(c)(5)(B). 6 There, the
    Department found reasonable the use of the five price-to-normal value dumping margins set
    forth in the Petition (with some adjustments). The Department used a simple average of those
    margins to assign the separate rate of 136.76 percent for Xinke and Haitian. Issues & Dec. Mem.
    at 33. For use in its price-to-normal value calculation, defendant-intervenors computed the
    normal value of grated steel exports from the PRC using “factors of production data from
    comparable U.S. steel producers regarding raw material quantities, labor consumption, and
    energy consumption.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 8 n.7. These factors of
    6
    The statute reads as follows:
    If the estimated weighted average dumping margins established for all
    exporters and producers individually investigated are zero or de minimis margins,
    or are determined entirely under section 1677e of this title [(i.e., using AFA)], the
    administering authority may use any reasonable method to establish the estimated
    all-others rate for exporters and producers not individually investigated, including
    averaging the estimated weighted average dumping margins determined for the
    exporters and producers individually investigated.
    19 U.S.C. § 1673d(c)(5)(B).
    Court No. 10-00240                                                                         Page 12
    production were then valued by defendant-intervenors “using publicly available surrogate data
    from India, including information from the Global Trade Information Service’s Global Trade
    Atlas database.” Id.
    To value “factory overhead, selling, general and administrative expenses, and profit,” in
    their Petition, defendant-intervenors used the 2006–2007 financial statements of an Indian
    producer of welded pipe, Bihar Tubes Limited (“Bihar”), and an Indian producer of welded line
    pipes, Jindal SAW Limited (“Jindal”). Id. In the preliminary and final determinations, however,
    the Department declined to use the financials used by defendant-intervenors. Instead, Commerce
    calculated the financial ratios using the financial statements of two different Indian companies
    for the fiscal year 2007–2008, Mekins Agro Products Limited (“Mekins”) and Rama Steel
    Tubes Limited (“Rama”). Preliminary Determination, 75 Fed. Reg. at 854–55. As noted,
    Commerce then averaged the resulting rates to determine the margin for the separate rate
    respondents.
    Now, in the Remand Results, Commerce has assigned Xinke and Haitian a revised
    dumping margin of 38.16 percent. Remand Results at 7. Here, it determined Xinke and
    Haitian’s rate using a weighted-average of the five price-to-normal value dumping margins
    originally found in the Petition. Mem. from Robert Bolling, Program Manager, Import
    Administration, and Thomas Martin, International Trade Compliance Analyst, Import
    Administration, to the File at 2, PD 24 at bar code 3115630-01 (Jan. 18, 2013), ECF Dkt. No.
    107-24 (July 31, 2013) (“Calculation Mem.”). The Department, however, adjusted these
    margins by using alternative surrogate value information. Remand Results at 4–7. Thus, the
    Department reexamined the surrogate values used to calculate the Petition dumping margins, and
    “determined that there [were] more contemporaneous [surrogate values] on the record for some
    Court No. 10-00240                                                                           Page 13
    of the factors of production . . . used to calculate the [P]etition margins.” Remand Results at 4.
    The Department then “updated the [surrogate values] in the [P]etition with more
    contemporaneous information [specific to the POI] for hot-rolled steel coil, . . . steel scrap, wire
    rod, electricity, labor, and the ratios from the financial statements for overhead, selling expenses,
    general and administrative expenses, and profit.” Remand Results at 4–5. Commerce explained
    further that, for the surrogate values “based on import data, the Department only updated
    [surrogate values] where the record contained data from the interested parties which
    corresponded to the descriptions for the [factors of production] from the [P]etition.” Remand
    Results at 5. Although the Department updated the surrogate values, it retained the factors of
    production (i.e., the individual inputs) from the Petition.
    As part of this update, Commerce used Indian import data for hot-rolled steel coil that
    was derived from tariff schedule subheadings for wide-gauge steel coils. The Department then
    used that data as the basis for the surrogate valuation of the steel coil input. See Remand Results
    at 4–5. Defendant-intervenors had identified wide-gauge steel as a factor of production used to
    calculate the margins in the Petition. For this factor of production, Commerce “update[d] one of
    the three [Harmonized Tariff Schedule (‘HTS’)] subheadings (i.e., 7208.37.30) used in the
    [P]etition for the Indian import data as the basis for [hot-rolled steel coil] because only this HTS
    subheading had more contemporaneous data on the record.” Remand Results at 5. Thus, “[t]he
    Indian import data for [the] remaining two HTS subheadings (i.e., 7208.37.10 and 7208.37.90)
    for the [surrogate value] for hot-rolled steel coil from the [P]etition . . .” remained unchanged.
    Remand Results at 5.
    Before Commerce, and now here, plaintiff insists that the proper input was narrow-gauge
    steel coil, not wide-gauge. Commerce, however, declined to “consider[] using the Indian import
    Court No. 10-00240                                                                           Page 14
    data for HTS subheadings 7211.14.50 and 7211.19.50” (i.e., narrow-gauge steel coil) because
    doing so “would involve a redefinition of the [P]etition’s [factors of production] for hot-rolled
    steel coil.” Remand Results at 16–17. Commerce explained that using alternative tariff
    provisions to base the surrogate values would extend “beyond the instructions from the [c]ourt in
    updating the [surrogate values] for the [P]etition margins where appropriate.” Remand Results at
    17. Put another way, the Department contends that the court’s remand order directed it to update
    the values for the factors of production, but not to reevaluate the factors themselves.
    In making its argument, Xinke contends that the issue of the proper tariff provision for
    the hot-rolled strip was before the Department in the original investigation. Xinke’s Cmts. on
    Remand Determination 4 (ECF Dkt. No. 85) (“Pl.’s Cmts.”). Further, plaintiff notes that
    Commerce was instructed on remand “to consider the complete record in order to determine
    whether a more accurate antidumping margin could be assigned based on the surrogate data
    submitted during the investigation.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 12. Thus, “Xinke
    submits that the Department . . . should have [also revisited], and then corrected, the tariff
    provision” used as the basis for surrogate values for the steel coil. Pl.’s Cmts. 3; Remand Results
    at 12–13. Therefore, while not objecting to the values being made more contemporaneous to the
    POI, Xinke claims that Commerce used the wrong type of steel as a factor of production in the
    production of the steel grating, and should have corrected its error on remand.
    During the investigation, Jiulong supplied values for narrow-gauge subheadings (i.e.,
    HTS 7211.14.50 and 7211.19.50) in its mill test certificates that were used to value the hot-rolled
    steel coil in the Preliminary Determination. Pl.’s Cmts. 6. Xinke contends that, in order to value
    the steel input used in the manufacturing of the subject merchandise, Commerce should have
    used the HTS headings covering the narrow-gauge steel found in Jiulong’s mill test certificates
    Court No. 10-00240                                                                             Page 15
    for the steel input. Pl.’s Cmts. 6–7. In support of its claim, plaintiff points to the verification
    report which notes that representatives of Commerce measured steel coils at Jiulong’s factory
    and found that all of the coils were narrow-gauge. Pl.’s Cmts. 6; see Mem. from Robert Bolling,
    Program Manager, Thomas Martin, International Trade Compliance Analyst, and Brian Soiset,
    Staff Attorney, Office of the Chief Counsel for Import Administration, to the File at 10, A-570-
    947 (Feb. 23, 2010) (P.R. Doc. 164) (“Verification Report”). In addition, plaintiff argues that
    there is no evidence on the record supporting the use of wide-gauge steel coils for steel grating
    production in the PRC. Pl.’s Cmts. 3–7.
    Despite plaintiff’s arguments to the contrary, defendant-intervenors point to record
    evidence that they claim demonstrates that wide-gauge steel is the input used in the
    manufacturing of steel grating. Defendant-intervenors argue that record evidence establishes, for
    instance, that wide-gauge steel coils were used in the production of steel grating in the United
    States. See Def.-Ints.’ Resp. to Pl.’s Cmts. on the Final Results of Redetermination Pursuant to
    Ct. Remand 6 (EFC Dkt. No. 97) (“Def.-Ints.’ Resp. Cmts.”).
    Further, defendant-intervenors argue that there is record evidence that “steel producers do
    not generally produce hot-rolled steel coil in narrow form,” but rather “‘most producers of steel
    produce wide steel coil and slit it to size for use in products that require narrower coil, such as
    steel grating.’” Def.-Ints.’ Resp. Cmts. 6 (quoting Aff. ¶¶ 3–4, at 40–41, A-570-947 (Dec. 7,
    2009) (P.R. Doc. 124) (“[T]he commonly accepted practice is to purchase wide coils from a mill
    and slit into widths less than 30[ inches] and then slit again into narrow bearing bar widths. . . .
    [I]f a customer requests a coil of width less than 30 inches, it is customary for the steel producer
    to produce a wide coil, and slit the coil for the customer.”)).
    Court No. 10-00240                                                                               Page 16
    As to the Department’s verification of Jiulong, defendant-intervenors point out that
    company representatives for Jiulong were unable to say whether its purchased coils were rolled
    to a narrow size or slit from a larger coil. Def.-Ints.’ Resp. Cmts. 10; Verification Report at 10.
    Moreover, since the verification was conducted months after the Department’s investigation,
    defendant-intervenors insist that the presence of narrow-gauge steel at Jiulong’s factory is of
    little probative value. See Def.-Ints.’ Resp. Cmts. 11. Further, defendant-intervenors argue that,
    because “Jiulong’s falsification of [its mill test certificates] deprived the Department of the
    ability to verify the type of hot-rolled steel that the company used in its production of steel
    grating[,] . . . there is no basis on the record” to support a finding that Jiulong used narrow-gauge
    steel coils. Def.-Ints.’ Resp. Cmts. 10.
    Defendant-intervenors further argue that Commerce’s “use of narrow[-gauge steel coils]
    would require a redefinition of the Petition’s [factors of production].” Def.-Ints.’ Resp. Cmts. 2.
    They contend that injecting “surrogate values from one production process into a production
    process that does not incorporate that input [would] fundamentally chang[e] the Petition’s cost
    model” and “would require that it choose entirely different [factors of production] (e.g., raw
    materials, electricity, labor, and yield losses) that corresponded to the production process
    incorporating narrow steel coil,” thus “exceed[ing] the scope of the Court’s instructions to the
    Department to update the surrogate values for the Petition margins where appropriate.” Def.-
    Ints.’ Resp. Cmts. 8–9.
    For its part, the Department contends that, upon review of all “of the surrogate value
    information on the administrative record,” there was nothing that “undermined [defendant-
    intervenors’] claim that the factors reported in the [P]etition were the best available information
    on the factors of production from their surrogate for the PRC producer.” Def.’s Resp. to Cmts.
    Regarding the Remand Determination 8, 10 (ECF Dkt. No. 93) (internal quotation marks
    Court No. 10-00240                                                                           Page 17
    omitted) (“Def.’s Resp. Cmts.”). Echoing defendant-intervenors’ argument, the Department
    further maintains that “[a]pplying a surrogate value for a steel input with different widths from
    the input actually used by the domestic producer—as Xinke argues—results in a normal value
    derived from surrogate values based upon one production experience being applied to the factors
    of production of another, different production experience,” and thus, “go[es] ‘beyond the
    instructions from the Court.’” Def.’s Resp. Cmts. 9 (quoting Remand Results at 17).
    Accordingly, defendant asserts that Commerce’s determination “to continue using surrogate
    values from the Indian HTS schedule [for wide-gauge steel] that correspond[ed] to the physical
    characteristics of the hot-rolled steel in coils used by the domestic producer in producing steel
    grating” was reasonable. Def.’s Resp. Cmts. 10.
    The court sustains the Department’s use of wide-gauge steel coils as a factor of
    production. While disputing the Department’s decision to use wide-gauge steel coils for the steel
    input, plaintiff has not been able to establish that the choice was unreasonable or not fully
    explained. In other words, no usable record evidence undermines defendant-intervenors’ claim
    that the factors reported in the Petition were “the best available information on the [factors of
    production] from their surrogate for a PRC producer at the time the [P]etition was filed.”
    Remand Results at 15; see Peer Bearing Co.-Changshan v. United States, 35 CIT __, __, 
    752 F. Supp. 2d 1353
    , 1372 (2011) (explaining that the Department “must provide a rational
    explanation for its choice”). That is, (1) there was evidence on the record that wide-gauge steel
    was used as the input in the production of steel grating by a producer in the United States, see
    Petition for the Imposition of Antidumping and Countervailing Duties Pursuant to Sections 701
    and 731 of the Tariff Act of 1930, as Amended, Volume II at 101–04, A-570-947 (May 29,
    2009) (P.R. Doc. 1); (2) there was evidence that the common industry practice is for companies
    Court No. 10-00240                                                                             Page 18
    to purchase wide-gauge steel and slit it into narrow-gauge, Aff. ¶¶ 3–4 at 40–41; (3) during
    verification, company representatives of Jiulong were unable to say whether its purchased coils
    were rolled to a narrow size or slit from a larger coil, see Verification Report at 10;(4) because
    verification of Jiulong’s facility was conducted months after the close of the POI, the presence of
    narrow-gauge coils on site is of little probative value, see Verification Report at 1; and (5)
    because Jiulong’s mill test certificates describing the specifications of its hot-rolled steel coil
    were found to be inaccurate, and thus, unusable, there is no evidence on the record indicating
    that Jiulong’s merchandise, or that of any other Chinese manufacturer, was produced from
    narrow-gauge steel. In other words, the only usable evidence on the record is that wide-gauge
    steel was used in the production of steel grating. The court is constrained in its review to the
    evidence on the record, and plaintiff has failed to produce any other evidence that narrow-gauge
    steel was used in the production of steel grating by Jiulong itself, or elsewhere.
    Moreover, plaintiff waived its claim that Commerce used the wrong type of steel for the
    steel input by failing to raise it before the court prior to the remand. Because plaintiff did not
    raise this issue until after remand, the court’s instructions necessarily did not direct the
    Department to reconsider its selection of the input itself. “A waiver is [ordinarily evidenced by]
    an ‘intentional relinquishment or abandonment of a known right or privilege.’” NSK Ltd. v.
    United States, 
    28 CIT 1535
    , 1555, 
    346 F. Supp. 2d 1312
    , 1330 (2004) (quoting Johnson v.
    Zerbst, 
    304 U.S. 458
    , 464 (1938)). In the court’s order, Commerce was instructed to “reexamine
    the surrogate value data on the record, and determine an antidumping margin for the [s]eparate
    [r]ate [r]espondents[, Xinke and Haitian,] that [was] reasonable in light of the Department’s duty
    to determine rates as accurately as possible.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 30. The
    court’s order was directed at valuing the factors of production, not reconsideration of the factors
    Court No. 10-00240                                                                          Page 19
    of production themselves. In its papers before this court challenging the Final Determination,
    plaintiff did not make a claim that the surrogate values for steel should be derived from narrow-
    gauge subheadings. Had plaintiff done so, the court would have made a holding concerning this
    issue in Yantai I. As counsel for Xinke expressly stated at oral argument prior to the issuance of
    Yantai I, however, it did not challenge the factors of production used to calculate the Petition
    margins. Yantai I Oral Arg. Tr. 49:7–12, Mar. 14, 2012 (ECF Dkt. No. 77) (“[Xinke’s counsel
    (addressing the court):] We didn’t challenge the factors of production in the [P]etition. We
    simply challenged the valuations of those factors and that’s something that’s a simple
    mathematical exercise, so there are rates that can be looked at and used to calculate a rate for
    Xinke and that’s the [P]etition rates with the proper surrogate value supply.”).
    Relatedly, plaintiff did not challenge the methodology used to calculate the Petition
    margins. As Commerce points out, changing the input used to value Jiulong’s factors of
    production from wide-gauge to narrow-gauge steel would require other changes in the factors of
    production because the production processes would change. Thus, using narrow-gauge HTS
    subheadings to value Jiulong’s hot-rolled steel coil rather than the wide-gauge HTS subheadings
    used in the Petition would require Commerce to choose different factors of production (e.g., raw
    materials, electricity, labor, and yield losses) that corresponded to the production process for
    narrow-gauge steel coil. Because plaintiff declined to raise this issue before the court prior to
    remand, Commerce is correct that reviewing the factors of production themselves is beyond the
    scope of the court’s order. Thus, the Department complied with the court’s order that instructed
    the use of updated surrogate values, not different factors of production.
    Court No. 10-00240                                                                              Page 20
    B. Commerce’s Choice of Financial Statements Used for the Calculation of
    Financial Ratios Was Reasonable
    1.      Greatweld
    When calculating the dumping margins included in its Petition, defendant-intervenors
    used the 2006–2007 financial statements of an Indian producer of welded line pipes, Jindal, and
    of an Indian producer of welded pipe, Bihar, to value “factory overhead, selling[,] general and
    administrative expenses, and profit percentages.” Mem. from Rebecca Pandolph, International
    Trade Compliance Analyst, Import Administration, to the File at 152, A-570-947 (Oct. 30, 2008)
    (P.R. Doc. 1). In the preliminary and final determinations, the Department chose not to employ
    these financial statements. Rather, Commerce used financial ratios derived from the 2007–2008
    financial statements of, what the Department determined to be, two Indian producers of
    comparable merchandise, Mekins and Rama. Preliminary Determination, 75 Fed. Reg. at 854–
    55. Mekins’s financial statement was supplied by defendant-intervenors in a supplement to their
    Petition, and the Rama financial statement was submitted to the Department by Jiulong during
    Commerce’s investigation. Preliminary Determination, 75 Fed. Reg. at 854. Using these
    financials, Commerce recalculated “a weighted-average margin based on the number of pieces of
    steel grating from the Petition,” to reach the 136.76 percent rate assigned to Xinke and Haitian in
    the Final Determination. Calculation Mem. at 2.
    The court, in its remand order, instructed Commerce in Yantai I “to determine whether a
    more accurate antidumping margin could be assigned based on the surrogate data submitted
    during the investigation.” Yantai I, 36 CIT at __, Slip Op. 12-95, at 12. On remand, Commerce
    updated the financial ratios to recalculate the Petition margins. In updating the ratios, the
    Department reevaluated “each set of financial statements submitted to the record by interested
    parties as the basis for calculating these surrogate financial ratios.” Remand Results at 6 & n.14.
    Court No. 10-00240                                                                          Page 21
    In its draft results of redetermination, Commerce initially used the 2008–2009 Greatweld
    Steel Grating Private Ltd. (“Greatweld”) financial statements, offered by defendant-intervenors,
    “to calculate and update the financial ratios, based on record evidence that Greatweld [was] the
    only company whose financial statements [were] on the record which produce[d] identical
    merchandise (i.e., steel grating).” Remand Results at 6 n.15 (emphasis added); Draft Results of
    Redetermination Pursuant to Ct. Remand 6, PD 1 at bar code 3102556-01 (July 18, 2012), ECF
    Dkt. No. 107-1 (July 31, 2013) (“Draft Remand Results”). Upon further review of the record,
    however, the Department decided not to use the 2008–2009 Greatweld financial statements after
    finding that they were not publicly available, and thus, “not usable for the Department’s
    calculations.” See Remand Results at 6 n.15.
    Greatweld is an Indian manufacturer of steel grating. See Remand Results at 6 n.15.
    Defendant-intervenors contend that Commerce erred in finding that components of Greatweld’s
    financial statements, particularly the profit-and-loss statement, were not publicly available. Def.-
    Ints.’ Cmts. on Final Results of Redetermination Pursuant to Ct. Remand 12 (ECF Dkt. No. 88)
    (“Def.-Ints.’ Cmts.”). Defendant-intervenors assert that they were able to obtain at least portions
    of the financials from three independent sources: (1) India’s Ministry of Corporate Affairs’
    Registrar of Companies (“MCARC”), to which they paid a fee, (2) a market research firm
    (“Brisk”) they hired, and (3) from the website of a debt rating agency (“ICRA Limited”). Def.-
    Ints.’ Cmts. 13. They further claim that they obtained the entire profit-and-loss statement from
    Brisk. See Mem. from Brandon Farlander, International Trade Compliance Analyst, to the File,
    PD 22 at bar code 3112144-01 (Dec. 26, 2012), ECF Dkt. No. 107-22 (July 31, 2013) (“Profit-
    and-loss Statement Mem.”); Letter from Timothy C. Brightbill, Wiley Rein LLP, to the Hon.
    Rebecca M. Blank, Acting Secretary of Commerce, Dep’t of Commerce at 10, PD 21 at bar code
    Court No. 10-00240                                                                          Page 22
    3107582-01 (Nov. 27, 2012), ECF Dkt. No. 107-21 (July 31, 2013) (“Resp. to Clarification
    Supplemental Questionnaire”). Therefore, defendant-intervenors maintain that the Greatweld
    financials were “widely available to any number of individuals, market research companies, and
    ratings bodies” and are therefore publicly available. Def.-Ints.’ Cmts. 14. Accordingly,
    defendant-intervenors argue that Greatweld’s financial statements were the best information
    available on the record from which to calculate and update the financial ratios, and that
    Commerce erred by abandoning use of the Greatweld financials in the Remand Results.
    Defendant-intervenors also contend that the Department’s finding that Greatweld’s
    financial statements were not publicly available is inconsistent with Commerce’s prior practice.
    See Def.-Ints.’ Cmts. 14 & n.4. That is, they insist that Commerce has previously found other
    financial statements that were available by similar means to be publicly available. See Def.-
    Ints.’ Cmts. 13 & n.4.
    In order to test whether Greatweld’s 2008–2009 financial statements were publicly
    available, Commerce asked defendant-intervenors to provide a step-by-step history of how they
    located the company’s financial information “of sufficient detail so that any party would be able
    to replicate these steps to acquire Greatweld’s . . . financial statements.” Remand Results at 20.
    In response, defendant-intervenors explained that they obtained Greatweld’s annual report and
    balance sheet from the MCARC’s website and, using that information, “asked [Brisk] to obtain
    Greatweld’s entire financial statement. [Brisk] did this, using its relevant sources in India.”
    Resp. to Clarification Supplemental Questionnaire at 4 (emphasis added). Additionally,
    defendant-intervenors provided summaries of “Greatweld’s profit [and loss], turnover[,] and
    other key data” that it obtained from the ICRA Limited debt rating agency’s website. Resp. to
    Clarification Supplemental Questionnaire at 5. Commerce states, however, that defendant-
    Court No. 10-00240                                                                               Page 23
    intervenors “did not provide a detailed explanation of how [Brisk] acquired Greatweld’s
    complete financial statements” and determined that defendant-intervenors’ explanation was
    insufficient “[b]ecause the other interested parties to the proceeding, as well as the Department
    itself, d[id] not know the steps necessary to acquire [portions of the financial statements,
    including the profit-and-loss statement], and, therefore, could not acquire that data themselves . .
    . .” Remand Results at 20, 22.
    Thus, for Commerce, while Greatweld’s financial statements might be obtainable through
    the payment to an unnamed “foreign market research company” that then obtained the financials
    from unidentified “relevant sources,” defendant-intervenors’ explanation did not provide a
    sufficient road map for others to follow, in order to obtain the documents. Further, Commerce
    found that “while [defendant-intervenors] submitted financial data from ICRA Limited . . . and
    Brisk, these data are not complete financial statements and [were] thus not usable to calculate
    financial ratios.” Remand Results at 23. Put another way, for Commerce, the publicly available
    information was incomplete, and the remaining information was not publicly available. As a
    result, according to Commerce, the financials could not be said to be publicly available.
    In non-market economy antidumping cases, such as this, in selecting financial statements
    to calculate the financial ratios used to determine an exporter’s dumping margin, “Commerce
    looks to specificity, contemporaneity, and quality of the data.” Dongguan Sunrise Furniture Co.
    v. United States, 37 CIT __, __, 
    904 F. Supp. 2d 1359
    , 1366 (2013) (citation omitted) (internal
    quotation marks omitted). Further, the Department’s “selection of financial statements to
    calculate the financial ratios . . . is guided by a general regulatory preference for publicly
    available, non-proprietary information.” Since Hardware (Guangzhou) Co. v. United States, 37
    CIT __, __, 
    911 F. Supp. 2d 1362
    , 1366 (2013) (citing 
    19 C.F.R. §§ 351.408
    (c)(1), (4) (2012)
    Court No. 10-00240                                                                          Page 24
    (“For manufacturing overhead, general expenses, and profit, the [Department] normally will use
    non-proprietary information gathered from producers of identical or comparable merchandise in
    the surrogate country.”)). Commerce’s regulatory preference for publicly available information
    stems from its “concern that a lack of transparency about the source of the data could lead to
    proposed data sources that lack integrity or reliability.” 
    Id.
     at __, 911 F. Supp. 2d at 1367
    (citation omitted) (internal quotation marks omitted).
    This Court has repeatedly confirmed the importance of public availability of the financial
    statements used for surrogate values. See, e.g., Jining Yongjia Trade Co. v. United States, 34
    CIT __, __, Slip Op. 10-134, at 23 (2010) (“Commerce’s practice, in selecting the best available
    information for valuing [factors of production], is to select surrogate values which are product-
    specific, representative of a broad market average, publicly available, contemporaneous with the
    [period of review] and exclusive of taxes and duties.” (emphasis added) (citation omitted)
    (internal quotation marks omitted)); Home Prods. Int’l, Inc. v. United States, 
    32 CIT 337
    , 342,
    
    556 F. Supp. 2d 1338
    , 1343 (2008) (“If there is no quantitative or qualitative difference between
    the two statements, and one is completely publicly available and the other is not (missing a profit
    and loss statement), then Commerce’s choice of a complete, publicly available financial
    statement consistent with its regulatory preference is, in the court’s view, not only reasonable,
    but correct.”).
    The importance of having a profit-and-loss statement included in surrogate financial
    statements has been consistently expressed by Commerce because its practice is to not use
    surrogate data from companies that record a loss or zero profit during the POI. See, e.g., Steel
    Concrete Reinforcing Bars From the PRC, 
    66 Fed. Reg. 33,522
     (Dep’t of Commerce June 22,
    2001) (notice of final determination of sales at less than fair value), and accompanying Issues &
    Court No. 10-00240                                                                            Page 25
    Dec. Mem. at cmt. 8; Certain Fresh Cut Flowers From Ecuador, 
    64 Fed. Reg. 18,878
    , 18,883
    (Dep’t of Commerce Apr. 16, 1999) (prelim. results and partial rescission of antidumping duty
    admin. review); Silicomanganese From Brazil, 
    62 Fed. Reg. 37,869
    , 37,877 (Dep’t of Commerce
    July 15, 1997) (final results of antidumping duty admin. review). This is because the Statement
    of Administrative Action, which accompanies the Uruguay Round Agreements Act, requires that
    an element of profit be included in the calculation of constructed value. H.R. DOC. NO. 103-316
    at 839–40 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4175–76. “Because constructed value
    serves as a proxy for a sale price, and because a fair sales price would recover [selling, general,
    and administrative] expenses and would include an element of profit, constructed value must
    include an amount for [selling, general, and administrative expenses] and for profit.” H.R. DOC.
    NO. 103-316 at 839 (1994), reprinted in 1994 U.S.C.C.A.N. at 4175. Indeed, this Court has
    found that, under certain circumstances, it would be unreasonable for Commerce to rely on
    financial statements that lack a profit-and-loss statement. See, e.g., Home Prods. Int’l, 32 CIT at
    342; cf. Dongguan, 37 CIT at __, 904 F. Supp. 2d at 1366 (finding a company’s financial
    statement to be incomplete and unreliable, and thus, unusable, because the statement was missing
    a tax line item).
    The court finds that the profit-and-loss statement placed on the record by defendant-
    intervenors does not rise to the level of “publicly available.” Commerce, in preparing the
    Remand Results, was presented with the question of determining whether to use the financial
    statements of a company that produced identical merchandise to steel grating, but whose
    financials were not publicly available, or the financial statements of eight companies that
    produced comparable merchandise to steel grating, but whose financials were readily available to
    the public. Commerce reasonably chose the latter.
    Court No. 10-00240                                                                           Page 26
    The Department, on several occasions, asked defendant-intervenors to submit a step-by-
    step explanation, outlining how they obtained Greatweld’s 2008–2009 profit-and-loss statement.
    Remand Results at 22. Defendant-intervenors’ responses were inadequate because they failed to
    provide a sufficiently detailed explanation of how the unnamed foreign market research company
    acquired Greatweld’s complete financial statements from its unidentified “relevant sources.”
    Thus, defendant-intervenors failed to make the requisite demonstration that the Department or
    the other interested parties could access the same financial data. Remand Results at 22.
    Consequently, no publicly available profit-and-loss statement was placed on the record for
    Greatweld, and, as a result, as the Department notes, Commerce could not ascertain whether
    Greatweld recorded a profit or a loss during the POI. See Remand Results at 23. Because it is
    Commerce’s reasonable practice to use financial statements of companies that record a profit to
    calculate surrogate financial ratios, Greatweld’s publicly available partial financial statements
    are materially incomplete. The court reaches this conclusion after having taken into account
    defendant-intervenors’ arguments.
    As part of their argument, defendant-intervenors assert that, here, Commerce has
    departed from its prior practice by finding Greatweld’s financial statements were not publicly
    available. The court is not persuaded. Defendant-intervenors cite Certain Lined Paper Products
    From the PRC, 
    71 Fed. Reg. 53,079
     (Dep’t of Commerce Sept. 8, 2006) (notice of final
    determination of sales at less than fair value, and affirmative critical circumstances, in part), and
    accompanying Issues & Dec. Mem. at cmt. 1, where Commerce concluded that “financial
    statements of private companies filed with Indian Registrar of Companies are in the public
    realm.” They also cite Certain Activated Carbon from the PRC, 
    74 Fed. Reg. 57,995
     (Nov. 10,
    2009) (final results of admin. review), and accompanying Issues & Dec. Mem. at cmt. 2, in
    Court No. 10-00240                                                                           Page 27
    which Commerce accepted financial statements from the Indian Ministry of Corporate Affairs’
    website as publicly available. Remand Results at 21 & n.47; Def.-Ints.’ Cmts. 13 & n.4. The
    court notes, however, that these decisions appear to support only the conclusion that Commerce
    consistently considers documents, such as those from MCARC (India’s Ministry of Corporate
    Affairs’ Registrar of Companies), to be publicly available. In this case, Commerce has not
    disputed the public availability of the MCARC documents, but rather the public availability of
    the profit-and-loss statement that defendant-intervenors acknowledge was not retrieved from
    MCARC. See Remand Results at 22; Profit-and-loss Statement Mem.
    Defendant-intervenors next cite 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from the
    PRC, 
    74 Fed. Reg. 10,545
     (Dep’t of Commerce Mar. 11, 2009) (final determination of sales at
    less than fair value), and accompanying Issues & Dec. Mem. at cmt. 1, in which Commerce
    notes that it “frequently accept[s] sources of information obtained through fee-based internet
    services.” Here, however, the only fee-based internet service that defendant-intervenors state
    that they used was MCARC, and Commerce has accepted documents from that source as
    publicly available. Brisk, on the other hand, is a research company located in India. Remand
    Results at 20. It is the public availability of the profit-and-loss statement provided by Brisk that
    Commerce questions, not information supplied by a fee-based internet service. Thus, this agency
    determination does not help defendant-intervenors.
    Defendant-intervenors also cite Floor-Standing, Metal-Top Ironing Tables and Certain
    Parts Thereof From the PRC, 
    76 Fed. Reg. 15,297
     (Dep’t of Commerce Mar. 21, 2011) (final
    results of antidumping duty admin. review), in which Commerce found that it could use financial
    statements obtained from a public source. Def.-Ints.’ Cmts. 13 n.4. Citation of this review does
    not aid defendant-intervenors, however, because it is precisely that the profit-and-loss statement
    Court No. 10-00240                                                                            Page 28
    has not been obtained from a public source that caused Commerce to decline to use the
    Greatweld profit-and-loss statement obtained by Brisk.
    Finally, defendant-intervenors cite Persulfates From the PRC, 
    67 Fed. Reg. 50,866
    ,
    50,869 (Dep’t of Commerce Aug. 6, 2002) (prelim. results of antidumping duty admin. review
    and notice of partial recission) (“Persulfates”), in which Commerce found that the financial
    statements of a private firm under review could be considered publicly available if, among other
    conditions, the statements were placed on the record by that firm. Persulfates, however, is
    distinguishable from the case at-hand because Greatweld has not placed its financial statements
    on the record. Rather, it is defendant-intervenors that have placed the Greatweld financial
    statements on the record. Further, unlike the companies in Persulfates, Greatweld is neither a
    respondent under review, nor a party to this action. In sum, the court finds that the record does
    not reflect that Commerce has unreasonably deviated from its prior practices in determining
    public availability.
    Next, the court cannot credit defendant-intervenors’ assessment that, because they were
    able to obtain Greatweld’s financial data, these statements were necessarily widely available to
    the public. As defendant-intervenors note, Commerce “‘must address significant arguments and
    evidence which seriously undermines its reasoning and conclusions.’” Def.-Ints.’ Cmts. 14
    (quoting Altx, Inc. v. United States, 
    25 CIT 1100
    , 1117–18, 
    167 F. Supp. 2d 1353
    , 1374 (2001)).
    Defendant-intervenors, however, have failed to present any significant argument. Commerce’s
    concern is that other interested parties may not be able to independently access the information,
    and this is the bar that Commerce has reasonably set for public availability. That Brisk, which
    specializes in mining financial data, was able to obtain the profit-and-loss statement, provides
    little indication that other interested parties lacking the data mining skills and expertise of Brisk,
    Court No. 10-00240                                                                             Page 29
    could independently do the same. See Profit-and-loss Statement Mem. (“[Defendant-
    intervenors] stated that the market research company [(Brisk)] acquired Greatweld’s profit and
    loss statement.”).
    Nor can defendant-intervenors rely on Ass’n of American School Paper Suppliers v.
    United States as an instance where this Court has upheld Commerce’s use of incomplete
    financial statements. See Ass’n of Am. Sch. Paper Suppliers v. United States, 35 CIT __, __, 
    791 F. Supp. 2d 1292
    , 1303–05 (2011). Defendant-intervenors’ assert that School Paper Suppliers
    stands for the proposition that Commerce has used incomplete financial statements in the past to
    calculate financial ratios. In School Paper Suppliers, however, Commerce chose to use
    incomplete financial statements only after finding that they were not missing “key sections that
    [were] vital” to its analysis and calculations. 
    Id.
     at __, 
    791 F. Supp. 2d at 1304
     (internal
    quotation marks omitted). In particular, although the financial statements in School Paper
    Suppliers were incomplete, they contained a publicly available profit-and-loss statement. See 
    id.
    at __, 
    791 F. Supp. 2d at 1299
     (“[Commerce] found that the . . . data contained a director’s
    report, auditor’s reports, balance sheet, profit and loss statement, notes, and accounting policies.”
    (emphasis added) (citation omitted)). As discussed above, Commerce has been reasonable in
    consistently emphasizing the importance it places on profit-and-loss statements. Moreover, this
    Court has upheld this practice, and continues to do so here. See, e.g., Home Prods. Int’l, 32 CIT
    at 342, 
    556 F. Supp. 2d at 1343
    .
    Accordingly, the court finds that Greatweld’s 2008–2009 financial statements were
    incomplete because they lacked a profit-and-loss statement that was publicly available. Thus,
    Commerce reasonably determined, on remand, that Greatweld’s financials could not be used to
    calculate the surrogate financial ratios.
    Court No. 10-00240                                                                         Page 30
    2.      Mekins
    By means of a supplement to the Petition underlying this investigation, defendant-
    intervenors placed on the record the 2007–2008 financial statements of Mekins, an Indian
    company, which they asserted manufactured wire decking, merchandise comparable to steel
    grating from the PRC. See Preliminary Determination, 75 Fed. Reg. at 854. Although the
    Department initially used the 2007–2008 Mekins financial statements in the preliminary and
    final determinations to calculate surrogate financial ratios, Commerce declined to use Mekins’s
    financials on remand, “find[ing] that the record d[id] not support finding that any of Mekins’[s]
    products [manufactured during the fiscal year were] comparable to steel grating” (i.e., wire
    decking). Remand Results 31. Thus, Commerce found that, Mekins neither manufactured an
    identical product to steel grating, nor did it produce a comparable product.
    Defendant-intervenors insist that Commerce should have used Mekins’s financials in its
    surrogate value analysis, stating that, in fact, Mekins produces wire decking, a comparable
    product to steel grating. See Def.-Ints.’ Cmts. 17. In support of their position, defendant-
    intervenors point to a printout of Mekins’s webpage that lists wire decking as one product that it
    produces, and they contend that Commerce has not addressed this evidence in the Remand
    Results. Def.-Ints.’ Cmts. 17–18.
    The court fails to find merit in any of these assertions. As Commerce points out, the
    printout of Mekins’s webpage, while some evidence that Mekins could produce wire decking, is
    insufficient evidence that Mekins was a producer of wire decking during the POI. See Remand
    Results at 31; Def.’s Resp. 22–23. That is, although the webpage indicates Mekins’s ability to
    produce wire decking, it does not demonstrate that Mekins produced wire decking between the
    period of October 1, 2008 and March 31, 2009 (during the POI). Thus, the webpage does not
    Court No. 10-00240                                                                         Page 31
    provide any evidence of the importance of wire decking production to Mekins’s financials, i.e.,
    how much wire decking Mekins produced annually, how much it produced relative to its other
    products, whether it produced wire decking regularly, or whether it produced wire decking
    during the POI.
    Moreover, Commerce examined Mekins’s financial statements from 2007–2008 (the year
    prior to the POI) that defendant-intervenor placed on the record, and found that they provide no
    evidence that the company produced any wire decking that year. That is, the financials list
    quantities produced of specific products, and wire decking is notably absent. See Remand
    Results at 31. Further, Commerce examined Mekins’s financial statements from 2008–2009 (the
    year of the POI) which plaintiff initially placed on the record during the investigation, and found
    that there was nothing that speaks directly to Mekins’s production of wire decking during the
    POI. See Remand Results at 31. Accordingly, because defendant-intervenors can only point to
    evidence that Mekins had the ability to produce a comparable product to steel grating, and the
    Department lacked record evidence that the company actually manufactured this product during
    the POI, Commerce reasonably concluded “that there [was] insufficient evidence on the record to
    indicate that Mekins actually manufactured wire decking during the [POI],” and the Department
    was thus reasonable in its decision not to use the company’s financials to calculate surrogate
    financial ratios. Remand Results at 31.
    3.      Comparability of Steel Pipe and Tube Producers
    As noted, in the Remand Results, Commerce determined that there were no usable
    financial statements on the record of manufacturers of identical merchandise to steel grating.
    Thus, the Department used the 2008–2009 financial statements, which were specific to the POI,
    Court No. 10-00240                                                                           Page 32
    of Rama, Vallabh, NIL, NTL, North Eastern, Good Luck, Zenith Birla, and Shri Lakshmi, eight
    manufacturers of steel pipe and tube (merchandise Commerce determined to be comparable to
    steel grating), as the basis for calculating the surrogate financial ratios. Remand Results at 6.
    Defendant-intervenors object to the use of financial statements from steel pipe producers,
    arguing that (1) steel pipes are not comparable merchandise to steel grating, (2) they placed
    evidence on the record to that effect, that Commerce failed to adequately address, and (3)
    because Commerce failed to articulate a satisfactory explanation for its action and address
    evidence that undermines its conclusion,” the Department’s decision is not based on substantial
    evidence. Def.-Ints.’ Cmts. 19, 20 (citations omitted) (internal quotation marks omitted).
    As an initial matter, and as has been previously discussed, because the Department
    reasonably found that Greatweld’s financials were not publicly available, there are consequently
    no usable financial statements on the record for manufacturers of steel grating, i.e., the identical
    product. Additionally, as noted, Commerce reasonably determined that there was insufficient
    evidence that Mekins produced comparable merchandise to steel grating (i.e., wire decking)
    during the POI. Thus, Commerce looked to the record for financials of other producers of
    comparable merchandise. See, e.g., Viraj Forgings, Ltd. v. United States, 
    27 CIT 1472
    , 1485,
    
    283 F. Supp. 2d 1335
    , 1347 (2003) (“While it is certainly simpler for Commerce to identify and
    compare identical merchandise when it exists; lacking identical goods for comparison[,]
    Commerce must find similar merchandise in order to make a proper comparison with the United
    States imports” (citing NTN Bearing Corp. of Am. v. United States, 
    127 F.3d 1061
    , 1063 (Fed.
    Cir. 1997))).
    With respect to comparability, defendant-intervenors make the following arguments: that
    (1) “[s]teel pipe production requires substantially more machinery, technical skill, expense, and
    Court No. 10-00240                                                                           Page 33
    sophistication than the production of steel grating;” (2) Commerce “failed to address [defendant-
    intervenors’] contention that the end-uses of steel grating and steel tube and pipe differ;” (3)
    “[p]ipe and tube products clearly have no such similar use . . . to steel grating;” and (4) pipe
    producer Vallabh, whose financial statements were used as a source of the surrogate financial
    ratios, “devotes a significant portion of its operations—well over 50 percent—to the production
    of cold-rolled steel” and sponge iron, and is “therefore far removed from the business” of steel
    grating manufacturing.” Def.-Ints.’ Cmts. 19–22.
    “Comparability” is not defined in the governing statute or regulation. See 19 U.S.C. §
    1677b(c); 19 C.F.R § 351.408(c)(4). To determine comparability, Commerce’s regular practice
    is to consider the products’ physical characteristics, end uses, and production processes. See
    Jiaxing Brother Fastener Co. v. United States, 34 CIT __, __, 
    751 F. Supp. 2d 1345
    , 1355
    (2010); see also Lifestyle Enter., Inc. v. United States, 35 CIT __, __, 
    768 F. Supp. 2d 1286
    ,
    1307 (2011) (“In creating surrogate values, Commerce uses data from producers of ‘comparable
    merchandise,’ considering end uses, physical characteristics, and production processes.” (citation
    omitted)).
    Contrary to defendant-intervenors’ contentions, the court finds that Commerce has
    adequately demonstrated that steel grating and steel piping and tubing are comparable products.
    As an initial matter, Commerce noted on remand that it found the steel pipe and tube industry to
    be comparable to the steel grating industry in the Preliminary Determination. Remand Results at
    24 (citing Preliminary Determination, 75 Fed. Reg. at 855). In the Remand Results, Commerce
    based its findings largely on the similarities of the production processes. See Remand Results at
    24–25. The Department noted that steel pipe and tube, and steel grating use hot-rolled steel coil
    as the main input and that both have a similar method of production that involves cutting hot-
    Court No. 10-00240                                                                           Page 34
    rolled steel coil into strips, shaping the strips, and welding the strips. See Remand Results at 24–
    25 (citation omitted). Although welding shaped strips into pipe differs from welding the strips
    together to form grating, the similarities in the processes are obvious. Thus, the main input for
    steel grating and steel tubing are identical and the production processes are similar. Further,
    although defendant-intervenors allege that the production process for steel pipe is considerably
    more challenging and costly than that of steel grating, because welding strips together is the
    primary process used to make both products, Commerce reasonably determined that the
    production processes for the two products were nonetheless sufficiently similar to render the
    steel pipe and tube industry comparable.
    Though Commerce’s practice is to consider a product’s end use, physical characteristics,
    and production process in determining comparability, it is not restricted to using products that
    are comparable along all three fronts, and the conclusion that two products may be comparable
    for the purposes of surrogate valuation, and yet have different end uses, is not novel. See, e.g.,
    Musgrave Pencil Co. v. United States, 
    31 CIT 445
    , 450 (2007); Shanghai Foreign Trade Enters.
    v. United States, 
    28 CIT 480
     (2004) (listing past cases in which Commerce “has found
    comparability despite differences in shape, size and end use,” because the “two classes of
    products [were] made using similar materials and production processes”); Wire Decking from
    the PRC, 
    75 Fed. Reg. 32,905
     (Dep’t of Commerce June 10, 2010) (final determination of sales
    at less than fair value), and accompanying Issues & Dec. Mem. at cmt. 2 (“Although the end use
    of tyre bead, steel wire rope, other wire products, hinges, nails and blades may differ from wire
    decking the raw material inputs, production process, and machinery required are sufficiently
    similar to that of wire decking.”); Glycine from the PRC, 
    66 Fed. Reg. 8,383
     (Dep’t of
    Commerce Jan. 31, 2001) (final results of new shipper administrative review), and
    Court No. 10-00240                                                                          Page 35
    accompanying Issues & Dec. Mem. at cmt. 7 (“[G]lycine and phenylglycine have similarities
    with regard to material inputs and production processes. For example, both processes appear to
    use similar equipment . . . in manufacturing the glycine and phenylglycine[, and] . . . the steps
    involved in the production processes [of both products] appear to be similar.”); cf. H.R. REP. NO.
    100-576, at 591 (1988) (Conf. Rep.), reprinted in 1988 U.S.C.C.A.N. 1547, 1624 (“Commerce
    should seek to use, if possible, data based on production of the same general class or kind of
    merchandise using similar levels of technology and at similar levels of volume as the producers
    subject to investigation.” (emphasis added)).
    That Commerce has not specifically addressed defendant-intervenors’ contentions that
    steel grating and steel piping have different end uses, does not warrant a remand. While
    Commerce takes into account a product’s end use, physical characteristics, and production
    processes in its comparability analysis, the objective here is to determine surrogate financial
    ratios based on the cost of production. Production processes and the physical characteristics of
    the compared products are therefore the more important factors. Here, because the major input is
    identical, and cutting and welding steel strips are the most important manufacturing processes,
    the manner of manufacture is similar, and thus, Commerce has not erred in finding
    comparability. See H.R. REP. NO. 100-576, at 591, reprinted in 1988 U.S.C.C.A.N. at 1624.
    Finally, defendant-intervenors’ contention that Commerce failed to address evidence that
    Vallabh produces cold-rolled steel and sponge iron, in addition to piping and tubing, and is
    “therefore far removed from the business of” manufacturing steel grating, is at odds with the
    record. Def.-Ints.’ Cmts. 22. In the Remand Results, Commerce points directly to evidence on
    the record, namely Vallabh’s financial statements, demonstrating that Vallabh “is primarily a
    manufacturer and seller of steel pipe and tube” insofar as it produced significantly more steel
    Court No. 10-00240                                                                         Page 36
    piping than any other product during the POI with more than twice as much of its revenue
    coming from the sale of steel piping as from cold-rolled steel, its next most important product.
    See Remand Results at 25–26, 26 n.68 (citing Vallabh Steels Limited Annual Report 2008–2009
    at 307, A-570-947 (Mar. 1, 2010) (P.R. Doc. 167) (“Vallabh Annual Report”)). As Commerce
    correctly notes, “[t]hat Vallabh also produces cold-rolled steel [and sponge iron] does not
    undermine the fact that Vallabh is a producer of [steel pipe and tubing,] which is a comparable
    merchandise” to steel grating. Def.’s Resp. 15. In other words, Vallabh’s financial statements
    indicate that a major source of the company’s business is the manufacturing and sale of steel pipe
    and tubing. Vallabh’s financials are thus largely reflective of the production of steel pipe and
    tubing, comparable merchandise to steel grating. In addition, because Vallahb’s financial
    statements are used in combination with seven other companies, whose primary production is of
    comparable merchandise, it cannot be said that the use of Vallabh’s financials was unreasonable.
    Accordingly, Commerce’s determination to use the financial statements of the steel
    piping and tubing producers is supported by substantial evidence.
    4.      Receipt of Subsidies by Producers of Comparable Merchandise
    As noted, on remand, Commerce used the financial statements of Indian companies,
    Rama, Vallabh, NIL, NTL, North Eastern, Good Luck, Zenith Birla, and Shri Lakshmi, to
    calculate the surrogate financial ratios, finding that these companies’ financial statements were
    for comparable merchandise and “more contemporaneous than the financial statements used in
    the [P]etition and the Preliminary Determination.” See Remand Results 6.
    Court No. 10-00240                                                                           Page 37
    a. NTL, NIL, North Eastern, and Good Luck
    Defendant-intervenors challenge Commerce’s use of the NTL, NIL, North Eastern, and
    Good Luck financial statements, claiming that there is evidence that these companies received
    countervailable subsidies during the POI. Def.-Ints.’ Cmts. 23–24. Defendant-intervenors
    suggest that “the significant amount of subsidies referenced in the companies’ financial
    statements strongly indicate that these statements are distorted and unreliable.” Def.-Ints.’ Cmts.
    24. In particular, defendant-intervenors note that NTL received a subsidy listed as “Duty
    Entitlement on Exports,” which they claim is similar to the “Duty Entitlement Pass Book
    Scheme” that Commerce has previously found to be countervailable. Def.-Ints.’ Cmts. 23–24.
    Defendant-intervenors contend that, “given the nearly identical name of these two programs, the
    Department erred in failing to provide evidence to support its conclusion that [the two] are
    distinct subsidy programs.” Def.-Ints.’ Cmts. 24.
    Commerce’s general practice is not to use financial statements to calculate financial
    ratios from companies that are known to receive countervailable subsidies. This practice results,
    in part, from Congress’s direction in the legislative history to the Omnibus Trade and
    Competitiveness Act of 1988, that “Commerce shall avoid using any prices which it has reason
    to believe or suspect may be dumped or subsidized prices . . . base[d] on information generally
    available to it at that time.” H.R. REP. NO. 100-576, at 590–91, reprinted in 1988 U.S.C.C.A.N.
    at 1623–24. The Department has further observed that its practice of declining to use the
    financials of companies known to have received countervailable subsidies is based on the idea
    that these financial statements may be less representative of the financial experience of the
    relevant industry than financial statements that do not contain evidence of these types of
    subsidies. Remand Results at 26; see also Jiaxing, 34 CIT at __, 
    751 F. Supp. 2d at 1353
    .
    Court No. 10-00240                                                                            Page 38
    Nevertheless, Commerce’s policy is not to reject financials containing evidence of
    subsidies of an unknown character unless there is evidence that the subsidies were distortive with
    respect to the subject merchandise during the POI. See, e.g., Persulfates from the PRC, 
    68 Fed. Reg. 68,030
     (Dep’t of Commerce Dec. 5, 2003) (final results of antidumping duty administrative
    review), and accompanying Issues & Dec. Mem. at cmt. 3 (collectively, “Persulfates Final
    Results”). The Department’s stated reason for not disregarding all financials with evidence of a
    subsidy is that, “[i]n the case of a potential surrogate in receipt of government subsidies, the
    [mere] existence of a subsidy is not, in and of itself, sufficient evidence of such distortion.”
    Persulfates Final Results at cmt. 3. Thus, except for countervailable subsidies, the Department
    requires evidence of distortion before it will discard financial statements.
    Moreover, as stated in the Conference Report for the enacting statute, Congress did “not
    intend for Commerce to conduct a formal investigation” [with respect to subsidization,] but
    rather intend[ed] that Commerce base its decision on information generally available to it at th[e]
    time.” H.R. REP. NO. 100-576, at 590–91, reprinted in 1988 U.S.C.C.A.N. at 1623–24.
    The court finds that the Department’s decision to use the financial statements of NTL,
    NIL, North Eastern, and Good Luck to calculate financial ratios was reasonable. 7 Here, although
    7
    It should be noted that the facts and circumstances of this case differ from those
    found in Fuyao Glass Indus. Group Co. v. United States, 
    29 CIT 109
     (2005). In that case,
    Commerce determined that surrogate prices from a country should be disregarded based on a
    finding that there was a “reason to believe or suspect” that the surrogate prices were subsidized.
    See Fuyao Glass, 29 CIT at 111–21 (quoting H.R. REP. NO. 100-576, at 590, reprinted in 1988
    U.S.C.C.A.N. at 1623). In CS Wind Vietnam Co. v. United States, the Court discussed the
    standard set forth in Fuyao Glass. CS Wind Vietnam Co. v. United States, 38 CIT __, __, Slip
    Op. 14-33, at 32–33. As noted by the Court in CS Wind, the Fuyao Glass standard requires the
    Department, when considering such a determination, to justify its belief or suspicion with respect
    to the prices of products of specific companies by showing that “‘(1) subsidies of the industry in
    question existed in the supplier countries during the [POI]; (2) the supplier in question is a
    member of the subsidized industry or otherwise could have taken advantage of any available
    (footnote continued)
    Court No. 10-00240                                                                            Page 39
    NIL, North Eastern, Good Luck, and NTL’s financial statements indicate the receipt of subsidies
    during the POI, there is no evidence on the record that any of the subsidies have been previously
    investigated by the Department, and found to be countervailable. More specifically, none of
    NIL, North Eastern, or Good Luck’s financials refer to a particular subsidy or export incentive
    program. Rather, their financial statements refer to the receipt of subsidies in general terms (e.g.,
    “Export Incentives/Benefits Receivable,” “State Capital Investment Subsidy,” “Central Capital
    Investment Subsidy,” “Development Subsidy,” etc.). In addition, there is no record evidence of
    the receipt of distortive subsidies. Thus, although it is possible that the listed subsidies could be
    found to be countervailable or to be otherwise distortive, there is no evidence that, in fact, they
    were either.
    Neither does the record contain evidence that the “Duty Entitlement on Exports” column
    in NTL’s financials refer to the “Duty Entitlement Pass Book Scheme,” a program previously
    investigated by the Department, and found to be countervailable. Def.-Ints.’ Cmts. 23–24. Also,
    nothing on the record points to the amounts NTL received as being distortive.
    Finally, contrary to defendant-intervenors’ assertion that Commerce should have
    conducted a formal investigation to determine whether these programs were distinct from one
    another, defendant-intervenors have been unable to point to, and the court is unaware of, any
    statute, regulation, or agency practice that would require the Department to undertake such an
    subsidies; and (3) it would have been unnatural for a supplier not to have taken advantage of
    such subsidies.’” Id. (quoting Fuyao Glass, 29 CIT at 114). Here, there is no claim that any
    financials should not be used because of the availability of countervailable subsidies for a
    particular industry in a particular country. Rather, the claim is that there is evidence of the
    receipt of countervailable subsidies within the financials themselves, and that the financials are
    therefore unusable for purposes of calculating the financial ratios. Because the claim involves
    financials that are on the record, the Department’s inquiry need not reference the Fuyao Glass
    standard. Rather, Commerce has reasonably looked to the financials themselves for evidence of
    unacceptable subsidies.
    Court No. 10-00240                                                                          Page 40
    investigation. Indeed, Congress’s direction is that “Commerce base its [subsidy] decision on
    information generally available to it at that time.” H.R. REP. NO. 100-576, at 590–91, reprinted
    in 1988 U.S.C.C.A.N. at 1623–24.
    Thus, because there is no evidence of specific countervailable subsidies, or any evidence
    of distortive subsidies in NIL, North Eastern, Good Luck, or NTL’s financial statements, the
    Department did not err in including their financial statements in its calculations of the surrogate
    financial ratios.
    b. Shri Lakshmi
    Defendant-intervenors also object to the Department’s reliance on the financial
    statements of Shri Lakshmi, an Indian company that Commerce found to be a producer of
    comparable merchandise to steel grating. Defendant-intervenors claim that there is evidence that
    Shri Lakshmi benefitted from a countervailable subsidy received by its owner, Bihar, under the
    “Duty Entitlement Pass Book” scheme. Def.-Ints.’ Cmts. 24. As noted, Commerce previously
    found that subsidy to be countervailable.   In particular, defendant-intervenors contend that they
    provided evidence to the Department that Shri Lakshmi purchased finished pipe from Bihar, thus
    benefitting from Bihar’s subsidy stream, but that Commerce failed to address this evidence. See
    Def.-Ints.’ Cmts. 24.
    As noted, Commerce will not reject a company’s financial statements for use in
    calculating surrogate financial ratios, on the sole basis that the company’s financials mention a
    subsidy, unless the Department has previously found that specific subsidy program to be
    countervailable or finds the subsidy distortive. In addition, there must also be evidence that a
    benefit has actually been received as a result of the subsidy. See Delverde, SrL v. United States,
    Court No. 10-00240                                                                         Page 41
    
    202 F.3d 1360
    , 1364 (Fed. Cir. 2000) (“[T]he Tariff Act requires that Commerce make such a
    determination by examining the particular facts and circumstances of the sale and determining
    whether [the company] directly or indirectly received both a financial contribution and benefit
    from a government.”); DuPont Teijin Films v. United States, 37 CIT __, __, 
    896 F. Supp. 2d 1302
    , 1310 (2013). Further, for a set of financials to be found unusable because of a
    countervailable subsidy having been provided to a related company, there must be evidence that
    a benefit received by one company actually benefited its related company. Delverde, 
    202 F.3d at 1364
    . For instance, in the context of the purchase of assets from a subsidized company, the
    United States Court of Appeals for the Federal Circuit held that “the Tariff Act as amended does
    not allow Commerce to presume conclusively that the subsidies granted to the [seller]
    automatically ‘pass[] through’ to [the purchaser].” 
    Id.
    Here, the court finds that defendant-intervenors’ position lacks merit. First, defendant-
    intervenors’ entire claim before Commerce was that, because Shri Lakshmi bought pipe from
    Bihar, and Bihar received a countervailable subsidy, Shri Lakshmi “may benefit” from the
    subsidy. Rebuttal Br. of Alabama Metal Indus. Corp. and Fisher & Ludlow at 44–45, A-570-947
    (Apr. 13, 2010) (P.R. Doc. 223). Defendant-intervenors, however, have proffered no evidence
    indicating that Shri Lakshmi received a benefit from any subsidy program identified by
    Commerce to be countervailable, either through Bihar or otherwise. The mere purchase of pipe
    that might have been subsidized simply does not constitute substantial evidence. That is, absent
    some evidence, for instance, that the pipe was purchased at less than the market price, there is
    nothing to indicate that Shri Lakshmi benefitted from the supposed countervailable subsidy
    received by Bihar.
    Court No. 10-00240                                                                            Page 42
    Accordingly, because Commerce may not presume a “pass through” of the subsidy,
    without more, the Department’s determination to use Shri Lakshmi’s financial statements to
    update the financial ratios as part of its calculation of the surrogate financial ratios cannot be said
    to be unreasonable.
    Finally, because defendant-intervenors have failed to present any evidence that any of the
    companies whose financial statements were used received countervailable or distortive subsidies,
    Commerce reasonably determined to use these companies’ financial statements in its calculations
    of surrogate financial ratios.
    C.      Commerce Correctly Accepted Plaintiff’s Comments on the Draft Remand
    Results
    Defendant-intervenors next argue that Commerce improperly accepted the untimely
    submission of plaintiff’s comments on the Draft Remand Results. Def.-Ints.’ Cmts. 5. The
    parties were initially given until October 29, 2012 to submit comments on the Draft Remand
    Results, and were all subsequently granted a two-day extension until October 31, 2012. See
    Letter from Robert Bolling, Program Manager, Import Administration, to All Interested Parties,
    PD 14 at bar code 3103048-01 (Oct. 25, 2012), ECF Dkt. No. 107-14 (July 31, 2013). On
    October 29 and 30, 2012, the federal government was closed due to Hurricane Sandy, and, as a
    result, on October 31, 2012, the Import Administration issued a general memorandum “tolling all
    Import Administration deadlines for two days.” See Mem. from Paul Piquado, Assistant
    Secretary for Import Administration, to the Record at 3, PD 17 at bar code 3103946-01 (Oct. 31,
    2012), ECF Dkt. No. 107-17 (July 31, 2013) (“Tolling Mem.”). Two days after October 31,
    2012 was November 2, 2012. Defendant-intervenors submitted their comments to the Draft
    Court No. 10-00240                                                                           Page 43
    Remand Results on Wednesday, October 31, 2012, while plaintiff submitted its comments on
    Friday, November 2, 2012.
    Defendant-intervenors argue that the two-day extension granted by the Import
    Administration did not apply to this case because the “deadline for the Final Remand Results and
    . . . all comments w[as] October 31, 2012,” the day that the Tolling Memorandum was issued.
    Def.-Ints.’ Cmts. 5. Thus, according to defendant-intervenors, plaintiff’s submission on
    November 2, 2012 was untimely. Defendant-intervenors contend that, pursuant to 
    19 C.F.R. § 351.302
    (d)(1) (2012), Commerce should have rejected plaintiff’s submission. See Letter from
    Timothy C. Brightbill, Wiley Rein LLP, to the Hon. Rebecca M. Blank, Acting Secretary of
    Commerce, Dep’t of Commerce at 3, PD 18 at bar code 3104867-01 (Nov. 7, 2012), ECF Dkt.
    No. 107-18 (July 31, 2013); 
    19 C.F.R. § 351.302
    (d)(1) (“Unless the Secretary [of Commerce]
    extends a time limit [for good cause,] the Secretary will not consider or retain in the official
    record of the proceeding . . . [u]ntimely filed factual information, written argument, or other
    material that the Secretary rejects . . . .”).
    The court finds defendant-intervenors’ position unconvincing because the submission of
    plaintiff’s comments on the Draft Remand Results was timely. As a result of the government
    closure on October 29 and 30, the Department was unable to issue a general notice of extension
    until October 31, and indeed was unaware until October 31 of the number of days for which the
    extension should be granted. In addition, October 31 was the first day on which a notice
    granting the extension could be published. Thus, although the reason for granting the extension
    occurred prior to October 31, that date was the first on which notice of extensions could be made
    public. Moreover, the text of the extension explicitly covers plaintiff. See Tolling Mem. at 3
    (“After careful consideration, the Import Administration has determined that the impact of the
    Court No. 10-00240                                                                          Page 44
    recent Government closure during Hurricane Sandy will best be minimized by uniformly tolling
    all Import Administration deadlines for two days. The day on which any submission to the
    Import Administration is due should be calculated under the regulations as usual, except with the
    addition of two days (including weekends and holidays). This determination applies to every
    proceeding before the Import Administration, including . . . pending deadlines for actions by
    parties to our proceedings (such as the submission of AD/CVD questionnaire responses,
    supplemental questionnaire responses, and case and rebuttal briefs).”). Thus, plaintiff’s
    submission was timely.
    V.     DEFENDANT-INTERVENORS ASK THAT THE COURT RECONSIDER ITS PRIOR RULING
    Defendant-intervenors ask the court to reconsider its prior rulings directing Commerce to
    (1) reexamine the surrogate value data and calculate an antidumping margin for Xinke, and (2)
    separately determine and corroborate a rate for Jiulong. Def.-Ints.’ Cmts. 11–12. “[W]ithout
    any margin on the record other than a margin based on total AFA, they argue that “the
    Department appropriately resorted to the use of any reasonable method to calculate a separate
    rate for Xinke and [Haitian].” Def.-Ints.’ Cmts. at 11–12. Defendant-intervenors contend that
    Commerce’s selected rate, whereby it calculated “‘the rate for the separate rate respondents,
    including Xinke and . . . Haitian, using the simple average’ of the five-price-to-[normal-value]
    dumping margins contained in the [P]etition,” was revised and corroborated, and accordingly a
    reasonable methodology. Def.-Ints.’ Cmts. 12 (quoting Issues & Dec. Mem. at 33).
    The court declines defendant-intervenors’ invitation, and reaffirms its holding in Yantai I.
    In Yantai I, the court found that Commerce had available to it relevant surrogate data on the
    record that was likely to assist it in calculating a more accurate rate for Xinke and Haitian. See
    Court No. 10-00240                                                                            Page 45
    Yantai I, 36 CIT at __, Slip Op. 12-95, at 12. While Commerce is empowered “to use any
    reasonable method” to calculate the margins, this does not relieve Commerce of its “duty to
    determine margins as accurately as possible, and to use the best information available to it in
    doing so.” Lasko Metal Prods., Inc. v. United States, 
    43 F.3d 1442
    , 1443 (Fed. Cir. 1994); see
    19 U.S.C. § 1677f(3)(A) (2006) (requiring a final determination issued by Commerce to include
    “an explanation of the basis for its determination that addresses relevant arguments, made by
    interested parties who are parties to the investigation or review”). Moreover, the court found that
    Commerce acted unreasonably by disregarding Jiulong’s separate-rate questionnaire responses in
    calculating Jiulong’s AFA rate. Yantai I, 36 CIT at __, Slip Op. 12-95, at 27–29. Consistent
    with this Court’s holdings, “imput[ing] the unreliability of a company’s questionnaire responses
    and submissions concerning its factors of production and/or U.S. sales to its separate-rate
    responses when there is no evidence on the record indicating that the latter were false,
    incomplete, or otherwise deficient,” is unreasonable. Yantai I, 36 CIT at __, Slip Op. 12-95, at
    27 (collecting cases). Accordingly, based on the foregoing, this court continues to find its
    rulings in Yantai I, 36 CIT __, Slip Op. 12-95 to be correct, and will not disturb them now.
    CONCLUSION
    Based on the foregoing, it is hereby
    ORDERED that the Department of Commerce’s Final Results of Redetermination are
    sustained.
    Dated:          April 9, 2014
    New York, New York
    /s/ Richard K. Eaton
    Richard K. Eaton