Citations
- 968 F. Supp. 2d 1297
Full opinion text
OPINION AND ORDER
STANCEU, Judge:
In this consolidated action, four plaintiffs challenge the determination (“Final Results”) the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) issued to conclude the fifteenth administrative review of an antidumping order on certain corrosion-resistant carbon steel flat products (“CORE” or “subject merchandise”) from the Republic of Korea (“Korea”). Certain Corrosioiu-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Fifteenth Admin. Review, 75 Fed.Reg. 13,490 (Mar. 22, 2010) (“Final Results ”). The fifteenth review pertained to entries of subject merchandise made during the period of August 1, 2007 through July 31, 2008 (“period of review” or “POR”). Id.
Before the court is a determination (the “Remand Redetermination”) Commerce issued in response to the court’s remand order in Union Steel Mfg. Co., Ltd. v. United States, 36 CIT-, 837 F.Supp.2d 1307 (2012) (“Union Steel Mfg. Co., Ltd.”). Results of Redetermination Pursuant to Remand (Sept. 24, 2012), ECF No. 161 (“Remand Redetermination ”). For the reasons discussed in this Opinion and Order, the court sustains the Remand Redetermination as to: (1) the general and administrative (“G & A”) expense ratio Commerce used to determine the cost of production (“COP”) of the foreign like product for Union Steel Manufacturing Co., Ltd. (“Union”); (2) the Department’s decision to calculate Union’s interest expense ratio using financial statements from both the 2007 and 2008 fiscal years; (8) the Department’s application of its modified “sales-below-eost” and “recovery-of-costs” tests to calculate Union’s normal value; (4) the Department’s decision to create separate product categories for laminated CORE and non-laminated, painted CORE for use in a model-match methodology comparing Union’s home market and U.S. sales; and (5) the Department’s use of the “zeroing” methodology to calculate Union’s weighted average dumping margin.
The court orders a second remand for further proceedings to address a number of the Department’s decisions in the remand determination: (1) the decision to make a major input adjustment when calculating Union’s interest expense ratio; (2) the application of the modified “quarterly cost” methodology wherever used in the normal value calculations for Hyundai HYSCO (“HYSCO”), including the difference-in-merchandise (“DIFMER”) adjustments and constructed value (“CV”) determinations; (8) the application of the modified “quarterly cost” methodology for all aspects of the normal value calculations for Union except the revised sales-below-eost and recovery-of-costs tests; (4) the decision to depart from the normal method for selecting a comparison month when determining antidumping margins for Union and HYSCO; and (5) the decision to depart from the normal method by selecting the date of shipment, rather than the date of invoice, as the date of sale for certain sales that HYSCO made through a U.S. affiliate, Hyundai HYSCO USA, Inc. (“HHU” or “HYSCO USA”).
Finally, pursuant to the court’s order in Union Steel Mfg. Co., Ltd., 86 CIT at-, 837 F.Supp.2d at 1337-38, the court concludes that the second remand redetermination must recalculate the margin for Dongbu based on the redetermined margins for Union and HYSCO.
I. Background
The background of this case is provided in the court’s previous opinion and is supplemented herein. Union Steel Mfg. Co., Ltd., 36 CIT at -, 837 F.Supp.2d at 1311-12.
Three of the four plaintiffs in this action, Union, HYSCO, and Dongbu Steel Co., Ltd. (“Dongbu”), are Korean producers and exporters of the subject merchandise. Issues & Decision Mem., A-580-816, ARP 07-08, at 2 (Mar. 15, 2010), available at http://ia.ita.doe.gov/frn/summary/KOREASOUTH72010-6258-l.pdf (last visited Feb. 26, 2014) (“Decision Mem,.”). Plaintiffs Union and HYSCO were the mandatory respondents in the fifteenth administrative review and plaintiff Dongbu was a non-examined respondent in the fifteenth review. Id. United States Steel Corporation (“U.S. Steel”), a petitioner in the fifteenth administrative review, is the fourth plaintiff and a defendant-intervenor in this action. Id. at 1; Compl. 1 (Apr. 21, 2010), ECF No. 6 (Court No. 10-00139). Nucor Corporation (“Nucor”), also a petitioner in the fifteenth administrative review, is another defendant-intervenor in this action. Id. at 1 n. 1.
Union challenged the Department’s: (1) exclusive reliance on the 2008 financial statement of Union’s parent company to calculate Union’s interest expense ratio; (2) application of the quarterly costs and indexing methodologies to various calculations when determining normal value; (3) selection of the comparison month for normal value sales; (4) similar treatment of laminated CORE and non-laminated, painted CORE in the model-match process; and (5) use of zeroing in calculating the weighted average dumping margin for Union. Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1310, 1312, 1314, 1324. HYSCO challenged the Department’s use of the quarterly costs and indexing methodologies and the Department’s decision to use a nonstandard method for determining the comparison month. Id., 36 CIT at-, 837 F.Supp.2d at 1310, 1312, 1324. Dongbu raised the same challenges as Union and HYSCO and sought to be subject to a rate reflecting any modifications to the weighted average dumping margins for Union and HYSCO. Id., 36 CIT at-, 837 F.Supp.2d at 1310, 1335-36. U.S. Steel challenged the Department’s determination of the date of sale for the sales of subject merchandise that HYSCO made through a U.S. affiliate. Id., 36 CIT at-, 837 F.Supp.2d at 1310, 1312, 1334.
After the parties submitted all briefings in this action, defendant United States requested a voluntary remand so that Commerce could reconsider the quarterly cost and indexing methodologies used in the Final Results in light of an intervening decision by this Court.
In the court’s previous opinion in this case, Union Steel Mfg. Co., Ltd., it concluded that Dongbu was entitled to a recalculated margin reflecting any changes made on remand to the margins for mandatory respondents HYSCO and Union. Id., 36 CIT at -, 837 F.Supp.2d at 1329-34. The court also concluded that all of the claims brought by Union, HYSCO, and U.S. Steel required a remand. Id., 36 CIT at -, 837 F.Supp.2d at 1337-38. Specifically, the court determined that it could not uphold the Department’s decision to use financial data from Union’s parent company pertaining only to the 2008 fiscal year when determining Union’s interest expense ratio. Id., 36 CIT at -, 837 F.Supp.2d at 1313-21. The court also granted defendant’s request for a voluntary remand on the quarterly cost and indexing issues but directed Commerce to reconsider the quarterly cost and indexing methodologies wherever Commerce applied the methodologies in the Final Results — including the sales-below-cost test, “recovery-of-costs” test, constructed value (“CV”) determinations, and difference-in-merchandise (“DIFMER”) adjustments. Id., 36 CIT at -, 837 F.Supp.2d at 1321-25. As defendant requested, the court also remanded the Department’s decisions to: (1) depart from the normal method for selecting the comparison month when comparing U.S. and home market sales of Union and HYSCO; (2) treat Union’s laminated CORE and non-laminated, painted CORE as “identical” merchandise in the Department’s model-match methodology; (3) use the “zeroing methodology” in determining weighted average margins; and (4) use shipment dates as the date of sale for HYSCO’s sales through a U.S. affiliate. Id., 36 CIT at-, 837 F.Supp.2d at 1325-29, 1334-35.
In its Remand Redetermination, filed on September 24, 2012, Commerce redetermined Union’s interest expense ratio using both the 2007 and 2008 financial statements of Union’s parent company, Dongkuk Steel Mills Company Ltd. (“DSM”). Remand Redetermination 7-8. Commerce also modified its application of the quarterly cost and indexing methodologies when determining various aspects of the normal value calculation for Union and HYSCO. Id. at 16-18. Commerce added a separate product category for non-laminated, painted CORE in its revised model-match methodology for Union. Id. at 32-34. Commerce again found it appropriate to depart from the normal method for selecting the comparison months of normal value sales for Union and HYSCO. Id. at 27-29. Commerce also continued to use zeroing when calculating Union’s weighted average dumping margin. Id. at 60. Finally, Commerce continued to use the date of shipment as the date of sale for the sales HYSCO made through a U.S. affiliate. Id. at 61-62.
In the Remand Redetermination, Commerce revised Union’s weighted average dumping margin from 14.01% to 9.85% and HYSCO’s weighted average dumping margin from 3.29% to 1.46%. Id. at 67. Dong-bu’s weighted average dumping margin, which was based on the margins for two mandatory respondents, declined from 8.65% to 5.66%. Id.
Union, HYSCO, Dongbu, U.S. Steel, Nu-cor, and defendant each filed comments on the Remand Redetermination. Union Steel’s Comments on the U.S. Dept, of Commerce’s Sept. 24, 2012 Results of Re-determination Pursuant to Remand (Nov. 30, 2012), ECF No. 169 (“Union’s Comments”); Resp. of Hyundai HYSCO to Def.’s Redetermination on Remand (Nov. 30, 2012), ECF No. 170 (“HYSCO’s Comments”); Dongbu Steel’s Comments on the U.S. Dept, of Commerce’s Sept. 24, 2012 Results of Redetermination Pursuant to Remand (Nov. 30, 2012), ECF No. 168 (“Dongbu’s Comments”); Comments of U.S. Steel Corp. on the Results of Redetermination Pursuant to Remand Issued by the Dept, of Commerce (Dec. 3, 2012), ECF No. 171 (“U.S. Steel’s Comments”); Nucor Corp.’s Comments on Remand Results (Dee. 3, 2012), ECF No. 176 (“Nu-cor’s Comments”). Defendant responded to the various comments on February 15, 2013. Def.’s Resp. to Comments on the Dept, of Commerce’s Remand Results, ECF No. 204 (“Def.’s Resp.”).
The court held oral argument on May 23, 2013 at which Union, HYSCO, U.S. Steel, Nucor, and defendant United States appeared to address the various remaining challenges to the Remand Redetermination. Order (Mar. 3, 2013), ECF No. 207; Mot. for Oral Argument (Feb. 27, 2013), ECF No. 206; Oral Tr. 3-4 (July 22, 2013), ECF No. 215.
II. Discussion
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006), pursuant to which the court reviews actions commenced under section 516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a, including an action contesting the final results of an administrative review that Commerce issues under section 751 of the Tariff Act, 19 U.S.C. § 1675(a). When reviewing the Department’s redetermination, 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)(l)(B)(i).
A Union’s Interest Expense and G & A Expense Ratios
When determining the cost of producing the foreign like product (“cost of production” or “COP”) in the Final Results, Commerce, according to 19 U.S.C. § 1677b(b)(3), calculated Union’s G & A expense ratio using Union’s unconsolidated financial statements for fiscal year 2008 and Union’s interest (“financing”) expense ratio using consolidated financial statements from Union’s parent for fiscal year 2008. Decision Mem. 42-43. Because both Union and its parent company, DSM, use a fiscal year that matches the calendar year, these financial statements did not correspond precisely with the POR in this administrative review (August 1, 2007 to July 31, 2008). Id., 36 CIT at-, 837 F.Supp.2d at 1314. In its Rule 56.2 brief, Union challenged the use of the 2008 financial statements on the grounds that these statements “ ‘were aberrational and do not reasonably reflect Union’s actual data pertaining to the production and sale of the subject merchandise during the POR.’-” Id. (citation omitted). Union argued that Commerce should have calculated G & A and interest using only the 2007 statement or, in the alternative, a “blended rate,” for instance by combining the 2007 and 2008 financial data using a weighted average. Id., 36 CIT at -, 837 F.Supp.2d at 1314-15 (citation omitted).
In its previous opinion, the court ruled that using only the 2008 DSM financial statement to determine Union’s interest expense was unlawful for two reasons. “First, Commerce failed to consider an important aspect of the question before it, which was whether determining Union’s interest expense ratio solely on the basis of data in that financial statement produced the most accurate result.” Id., 36 CIT at -, 837 F.Supp.2d at 1317. The court noted that “the interest cost ratio derived from the 2008 financial statement of DSM reflects a five-fold increase from the interest cost ratio derived from the 2007 statement and appears to have been affected significantly by currency-related losses that coincided with a massive post-POR decline in the value of the Korean won.” Id., 36 CIT at -, 837 F.Supp.2d at 1319-20. Second, the court concluded that the Department’s use of the 2008 financial statement was based on the incorrect premise “that the Department has a consistent practice of using the single financial statement corresponding to the largest portion” of the POR. Id., 36 CIT at-, 837 F.Supp.2d at 1319. The court directed Commerce to “reconsider its decision to base Union’s interest expense ratio entirely on data obtained from DSM’s 2008 financial statement” and to examine “the relative merits of alternative methods.” Id., 36 CIT at-, 837 F.Supp.2d at 1320. Although the court did not identify the same legal infirmities with respect to the G' & A expense ratio, the court allowed Commerce to reconsider the G & A expense ratio on remand and deferred any ruling on whether or not that ratio complies with law. Id.
1. The Court Sustains the Redetermined G & A Expense Ratio for Union
In the Remand Redetermination, Commerce also examined its G & A expense ratio for Union but continued relying on Union’s 2008 financial statement. Commerce stated that “[wjhile the change in Korean won to U.S. dollar exchange rates from the beginning of 2007 to the end of 2008 may be considered aberrational, which directly affected the interest expense rate calculation, there is nothing unusual with the G & A expenses for 2007 and 2008 that would lead us to the same conclusion.” Remand Redetermination at 8-9. The Department’s decision on its G & A expense complies with the courts’ remand order and is not contested by any party in this action. The court therefore sustains the G & A expense ratio that Commerce reached in the Remand Redetermination.
2. Commerce Permissibly Based Union’s Interest Expense Ratio on the 2007 and 2008 Financial Statements of DSM
In the Remand Redetermination, Commerce reconsidered the interest expense ratio for Union and calculated a new interest expense ratio using both the 2007 and 2008 DSM financial statements, weighted according to the number of months of the POR occurring within each fiscal year. Remand Redetermination 7-8. Commerce explained that, notwithstanding the Department’s longstanding practice of using data from the fiscal year most closely corresponding to the POR, “inclusion of both fiscal years’ financial statements helps to ensure, based upon the unique facts present in this review as identified by the [Court of International Trade] in its Remand Order, that financial expenses for both fiscal years that encompass the POR are reflected in the financial expense ratio.” Id. at 8. The use of this blended calculation of 2007 and 2008 data in the Remand Redetermination significantly reduced Union’s interest expense ratio. Union Steel Accounting Cost Mem. 2 (Aug. 23, 2012) (Confidential Remand.R.Doc. No. 10).
Union opposes the revised interest expense ratio, arguing that that the data from the 2007 DSM financial statement are superior to a blended calculation using both the 2007 and 2008 statements because the latter approach still includes aberrationally high interest rate expenses that occurred predominantly after the POR. Union’s Comments 1-4. Defendant counters that the Department’s new method accounts for the whole of the POR while mitigating the potential effect of DSM’s post-POR foreign exchange losses. Def.’s Resp. 6-7, 11-12. Defendant also points out that the blended rate methodology is consistent with one favored by Union in its Rule 56.2 brief. Id. at 7.
In reviewing the revised financial ratio, the court accords Commerce considerable deference in the choice of methodology. See Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1346 (Fed.Cir.2005) (“Corus Staal”). The Department’s revised approach recognized the need to address the unusual circumstance of the aberrational interest expenses for DSM, which Commerce reasonably related to post-POR decline in the value of the Korean won. By drawing on expense data from both the 2007 and 2008 fiscal years, Commerce accounted for all twelve months of the POR while limiting any distorting effect of the post-POR foreign exchange losses. This approach necessarily includes in the calculation the finance cost data for twelve months outside of the POR, but no option would allow perfect coverage of the POR on the record facts. No DSM financial statement on the record corresponds temporally with the POR, and neither the 2007 nor the 2008 DSM statement reports monthly, or even quarterly, interest expenses. Both statements report data as of the end of DSM’s fiscal year. The court concludes that Commerce reached a decision of the choice of DSM financial statements that must be sustained. The Department’s approach to this issue addresses the problem of the aberrational interest expenses but also endeavors to cover the entire POR using a combination of the two DSM financial statements.
According to Union, only by excluding consideration of the 2008 financial statement entirely may Commerce eliminate the distorting effect of aberrational finance costs occurring after the close of the POR. Union’s Comments 3-4. Union also argues, as it did when originally contesting the Final Results, that the 2007 financial statement is more appropriate than the 2008 statement. Id. at 4-5. Union notes that the majority of the home market reporting period, when calculated according to the so-called “window period” used for average-to-transaction sales comparisons, which includes the POR plus ninety days before and sixty days after the POR, falls in 2007. Id.
The court is not persuaded by Union’s arguments. Use of the 2007 statement, although eliminating any distortion caused by the fall of the Korean won in the latter months of 2008, would create other distortions by covering only five months of the POR. Union’s argument based on the window period — any relevance of which is limited to instances in which there are no home market sales in the corresponding month — does not satisfy the basic objection that the 2007 financial statement covers only the first five months of the POR and thereby fails to cover the seven months of the POR that fell within the 2008 calendar year. Commerce acted within its discretion in using both statements to determine Union’s interest expense ratio. Balancing the competing considerations, Commerce thereby addressed the problem of aberrational expenses and also maintained reasonable contemporaneity with the POR.
U.S. Steel and Nucor also oppose the use of both the 2007 and 2008 statements to determine the interest expense ratio. Both defendant-intervenors argue that the Department’s revised method departs, without providing a reasoned basis, from the Department’s longstanding practice of using the financial statement that corresponds most substantially with the POR. U.S. Steel’s Comments 17-26; Nucor Comments 8-12. However, as the court noted in Union Steel Mfg. Co., Ltd,., Commerce does not appear to have a consistent practice of using financial statements from the fiscal year most closely corresponding to the POR when calculating interest expense ratios. Union Steel Mfg. Co., Ltd., 36 CIT at -, 837 F.Supp.2d at 1319. Moreover, the Remand Redetermination provides a reasoned basis for the Department’s choice to rely on the blended approach rather than the 2008 statement, citing the unusual circumstances occurring in 2008, which included a steep decline in the value of the Korean won after the close of the POR.
U.S. Steel contends that Commerce did not comply with the specific instructions set forth in the court’s Opinion and Order, having failed to “address whether using the blended rate would produce a dumping margin that was more accurate than using a rate based only on the 2008 financial statements.” U.S. Steel’s Comments 20-21. This argument is not persuasive because the Remand Redetermination explains why Commerce considered a blended rate more accurate than one based solely upon the 2008 financial statement. Commerce explained that “including both fiscal years’ financial statements helps to ensure, based upon the unique facts present in this review as identified by the [Court of International Trade] in its Remand Order, that financial expenses for both fiscal years that encompass the POR are reflected in the financial expense ratio.” Remand Redetermination 15. Commerce added that “[t]he Department’s methodology of using a blended financial expense rate for these final remand results recognizes the unique circumstances of the significant loss in the value of the Korean won that DSM experienced during 2008.” Id. at 15-16.
U.S. Steel submits that the decline in the Korean won occurring in 2008 after the close of the POR was not the “key factor” responsible for DSM’s 2008 foreign exchange transaction and translation losses. U.S. Steel’s Comments 21. U.S. Steel argues that “[t]o the contrary, the foreign exchange transaction and translation losses were due primarily to DSM’s substantially expanded commercial activities in 2008.” Id. In support of this argument, U.S. Steel points to record evidence that “[d]uring fiscal year 2008, DSM’s sales increased by fully 50% compared to 2007 — a period of extraordinary growth — and its costs to produce such sales,” ie., the cost of goods sold (“COGS”), “increased by over 40%.” Id. In further support of its argument, U.S. Steel states that “the notes to the 2008 financial statements show that DSM’s increased translation losses were based on the company’s enormous expansion of foreign borrowing in 2008,” adding that “in 2008, DSM’s notes payable in dollars increased by over 100%, and its notes payable in Japanese yen increased by over 2,578%. ” Id. at 22-23 (emphasis in original). Even though the 2008 financial statement at issue is not Union’s, but DSM’s, U.S. Steel also identifies aspects of Union’s business activity during the POR in support of an argument that “it is certainly proper to attribute the foreign exchange transaction losses in the 2008 financial statements to interest expense and business activities that took place during the POR.” Id. at 22.
The court understands U.S. Steel’s argument to be, in essence, that Commerce should use only the 2008 DSM financial statement because DSM’s increased business activity in 2008, and not the decline in the Korean won following the close of the POR, was the primary cause of the increased foreign exchange translation and transaction losses reflected in that financial statement. This argument does not convince the court that Commerce erred in using a rate derived from DSM’s 2007 and 2008 statements. In making its argument, U.S. Steel itself acknowledges “that the foreign-currency related losses account for the vast majority of DSM’s 2008 net financial expenses.” Id. at 22 n. 13. U.S. Steel also acknowledges that the increased business activity was related to the foreign exchange-related transaction losses, stating that “[pjlainly, this tremendous burst in business activity would have involved an enormous increase in purchases and sales in other currencies” and that “[a]s a result, it is a key factor in explaining the increases in the foreign exchange transaction losses in the 2008 financial statements.” Id. at 21. That the increased business activity may have made the currency transaction and translation losses larger than these losses otherwise would have been does not compel a conclusion that the fall in the value of the Korean won, particularly the fall occurring after the close of the POR, was not a key factor in DSM’s increased currency transaction and translation losses in the 2008 fiscal year. On this record, Commerce permissibly could infer an effect of post-POR declines in the Korean won because of the unusual level of those declines and the huge increase in the interest expenses DSM incurred from fiscal year 2007 to fiscal year 2008.
U.S. Steel next argues that “[t]here is also no evidence that the translation and transaction losses in question were ‘extraordinary’ and, as a result, rendered the 2008 financial statements unrepresentative of Union’s interest expense during the POR,” adding that “[i]t is highly significant that DSM itself treated these gains and losses as ordinary income and expenses in its financial statements.” U.S. Steel’s Comments 23. This argument fails because there is substantial record evidence to support a finding that the currency-related losses incurred by DSM in fiscal year 2008 were a one-time event justifying the use of both of the DSM financial statements. Under the Department’s approach, events transpiring during both fiscal years were factored into the financial ratio. U.S. Steel does not make the case that Commerce was required on this record to use only the 2008 statement to achieve the most accurate margin possible.
S. On Remand, Commerce Must Reconsider its Decision to Make a Major Input Adjustment to Union’s Interest Expense Ratio and Address Nucor’s Objection to that Decision
Nucor raises other objections to the Department’s method for redetermining Union’s interest expense ratio. Nucor argues that Commerce should not have made a “major input adjustment” when calculating this ratio, on the premise that the interest expense ratio should reflect actual, not hypothetical, costs. Nucor’s Comments 15. “While Nucor agrees with the Department’s adjustment to direct materials in order to account for what Union should have theoretically paid to its affiliated party suppliers, Nucor disagrees with the second adjustment made to Union’s COGS in calculating the financial ratio.” Id. According to Nucor, the adjustment resulted in a COP for Union that fails to comply with 19 U.S.C. § 1677b(f)(3) because it “does not fully reflect an arm’s length transaction.” Id.
The Tariff Act allows Commerce to make a major input adjustment to the COP calculation when a major input (in this case, coil steel substrate used to produce CORE that Union obtained from a related party) is obtained from a related party and Commerce has reasonable grounds to believe or suspect that the amount represented as the value of the input is less than the cost of producing the input. 19 U.S.C. § 1677b(f)(3). In determining Union’s COP, Commerce made such an adjustment to Union’s cost of coil steel substrate by increasing the COGS that it used as the denominator for the ratio pertaining to the direct materials input. Remand Redetermination 14-15. Commerce also made the adjustment to the COGS denominator when calculating Union’s finance cost ratio. Id.
When responding to the draft remand results Commerce circulated for comment before issuing the Remand Redetermination, Nucor objected to the Department’s making a major input adjustment when calculating Union’s interest expense ratio, on essentially the same grounds asserted here. Nucor’s Comments 14-15 (citing Comments on Draft Remand Results 8-10 (Sept. 6, 2012) (Remand.R.Doc. No. 13)). The Remand Redetermination does not respond to Nucor’s objection. Commerce has an obligation to address important factors raised by comments from petitioners and respondents. SKF USA Inc. v. United States, 630 F.3d 1365, 1374 (Fed.Cir.2011) (citation omitted). Because Commerce did not meet this obligation, the court will order Commerce to consider and respond to Nucor’s comment in the second remand redetermination.
In responding to Nucor’s comment that Commerce should not have made the major input adjustment in determining Union’s finance cost ratio, defendant states that “[t]o ensure greater accuracy, the adjustments made by Commerce in its remand calculation of Union’s interest expense ratio eliminated th[e] very distortion recognized by the statute.” Def.’s Resp. 10. The court must review the Department’s decision on the rationale Commerce put forth (absent in this case) rather than defendant’s post-hoc rationalization. SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) (“[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”).
Nucor argues in the alternative that even if it is permissible for Commerce to make a major input adjustment to the interest expense ratio calculation, Commerce still erred by making the adjustment using an impermissible method. According to Nucor, Commerce should not have made the adjustment to the COGS for each of the two fiscal years and instead should have made the adjustment only once, before weighting the average of the resulting ratios, arguing that the Department’s method double counted the major input adjustment. Nucor’s Comments 13-14; Oral Tr. 164-65. Because the question of how any major input adjustment, if permissible, should be effectuated is dependent on the answer to the primary question Nucor raises, the court defers any consideration of the “double counting” issue pending consideration of the Department’s answer to that primary question.
B. Use of Quarterly Cost Averaging Periods
Commerce determines the normal value of subject merchandise when conducting an administrative review of an antidumping duty order and compares that normal value to the export price or constructed export price of the subject merchandise. 19 U.S.C. § 1675(a)(2). In certain circumstances, Commerce, when calculating normal value, may exclude home market sales of the foreign like product that are less than the cost of producing the foreign like product (“cost of production” or “COP”). Id. § 1677b(b)(l). Commerce collects data from each respondent to determine the COP on a product-specific “control number” (or “CONNUM”) basis. Decision Mem. 14-15. Commerce then uses this CONNUM-specific cost information in various aspects of its dumping margin calculations. Id. at 14. Normally Commerce will calculate cost as a weighted average over the entire POR, but in some circumstances Commerce determines it is preferable to calculate costs as a weighted average for a shorter period of time, such as on a quarterly basis, as it did in the fifteenth review. Id. at 15, 21.
In this action, the circumstance influencing the Department’s decision to use quarterly costs was the fluctuating cost for a major input, steel substrate. Id. at 22-23. Commerce directed respondents to submit cost data on a quarterly basis; Commerce then used the quarterly data, along with its “indexing” methodology, to calculate the quarterly weighted average cost to produce each foreign like product for each examined respondent. Id. at 21, 24.
Union and HYSCO both challenged the Department’s application of indexed quarterly cost data to aspects of their respective normal value calculations. Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1312. Defendant requested a voluntary remand to allow Commerce to reconsider the quarterly cost methodology as applied to the cost recovery test. Def.’s Mot. for Partial Voluntary Remand 1 (June 21, 2011), ECF No. 130. Commerce indicated that it would review its methodology in light of an intervening decision of this Court. Id. (citing SeAH Steel Corp. v. United States, 34 CIT -, -, 704 F.Supp.2d 1353, 1364-70 (2010) (“SeAH”) (holding that the Department’s application of quarterly cost methodology for recovery of costs purposes did not comply with section 773(b)(2)(D) of the Tariff Act)). The court granted the request for voluntary-remand but also instructed Commerce to reconsider its quarterly cost methodology generally (including the use of indexing), wherever it was used in the Final Results. Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1321-25.
1. The Department’s Revised Sales-Below-Cost and Cost Recovery Tests
On remand, Commerce continued to use quarterly weighted average COPs to identify Union’s and HYSCO’s home market sales that were made below cost. Remand Redetermination 17. However, Commerce removed indexing from its quarterly cost methodology in most instances, instead relying on “Union’s and HYSCO’s reported historic quarterly-cost data.” Id. For the sales-below-cost test, Commerce “compared the un-indexed historical quarterly COPs to sales prices in each respective quarter to determine whether they were below cost.” Id.
Seeking conformity with the decision in SeAH, Commerce also amended its cost recovery test, stating in the Remand Redetermination that it “calculated an un-indexed weighted average per-unit COP for the entire period of review using the historical quarterly costs and production quantities as reported by respondents.” Id. at 17. In doing so, Commerce “first isolated Union’s and HYSCO’s sales” that were “disregarded because they failed the below-cost test.” Id. Commerce then “calculated CONNUM-specific annual weighted average prices” for each of these disregarded sales “and compared them, on a CONNUM-specific basis, to the annual weighted-average un-indexed costs.” Id. at 17-18. If, on comparison, the annual weighted average price for a CONNUM exceeded the annual weighted average unindexed cost for that CONNUM, Commerce “restored all sales of that CON-NUM to the normal value pool of sales available for comparison with U.S. sales.” Id. As a result, Commerce included a greater number of sales in both Union’s and HYSCO’s dumping margin calculations in the Remand Redetermination than it had in the Final Results. Id. at 18.
i. The Court Sustains the Application of the Department’s Revised Sales-Below-Cost and Recovery-of-Costs Tests as Applied to Union
Union does not object to the Department’s revised sales-below-cost and cost recovery tests. Union’s Comments 5-6; Oral Tr. 6-10. Accordingly, the court sustains this aspect of the Remand Redetermination as it pertains to Union.
ii. Commerce Must Reconsider its Revised Recovery-of-Costs Test as Applied to HYSCO
To calculate the annual weighted average cost under its revised methodology, Commerce combined cost averages for the different quarters of the POR. Where a home market sale occurred in a quarter for which the record contained no cost data for the CONNUM that was sold, Commerce, in its own words, “fill[ed] gaps with a surrogate or indexed cost.” Remand Redetermination 20. This occurred where a specific CORE product (identified by CONNUM) was sold but not produced in a particular quarter. In such an instance, Commerce substituted cost data pertaining to the actual CONNUM with cost data for a similar CONNUM. Remand Redetermination at 17 n.3. In its justification for this practice, Commerce explained that “[bjecause it is necessary to calculate a POR-average cost for the cost recovery test, it is necessary to include a cost for every quarter in which a sale of a CONNUM occurred.” Id. at 20.
HYSCO contests the method Commerce used in the Remand Redetermination to calculate annual weighted average costs under the revised recovery-of-eosts test. HYSCO’s Comments 2-5. Specifically, HYSCO objects to the Department’s using as a surrogate the cost data for a similar CONNUM where cost data for the actual CONNUM sold were present on the record, albeit not cost data for the particular quarter in which the sale occurred. Id. at 4-5. HYSCO argues that “[t]he Department’s method makes no sense when actual costs for those CONNUMs are on the record.” Id. Defendant counters that the court should uphold the Department’s method, maintaining that “[hjaving found significant cost changes between quarters, Commerce determined it to be necessary to include a cost — even if a surrogate cost from the most similar CONNUM — for every quarter in which a sale of a CONNUM occurred to obtain the most representative POR-average cost in applying the recovery-of-cost[s] test.” Def.’s Resp. 14.
The relevant statutory provision imposes a straightforward rule: a sale of the foreign like product in the home market may not be excluded from the normal value calculation as a sale below cost if the price paid is “above the weighted average per unit cost of production for the period of ... review.” 19 U.S.C. § 1677b(b)(2)(D). Under this rule, Commerce must calculate the weighted average per unit cost of producing the good sold in the home market, and it must do so on a POR-wide (in this case, yearly) basis. The statute makes no exception for a situation in which the COP, or an element of that COP (in this case, the cost of the surrogate), fluctuates significantly during the POR. Nor does the statute provide an exception for a situation in which the good is sold but not produced in the home market during a period within the POR that is less than one year. Commerce nevertheless determined that where both of these situations existed, it was appropriate to determine “the weighted average per unit cost of production for the period of ... review,” Id. § 1677b(b)(2)(D), using data other than data on how much it cost to produce the actual good sold in the home market. Remand Redetermination 17 n.3. Commerce is empowered to use “facts otherwise available” when data necessary for a required determination are missing from the record. 19 U.S.C. § 1677e(a). But in this case, the record contained the data required to perform the calculation required by § 1677b(b)(2)(D): cost of production data that pertained to both the CONNUM sold in the home market and the period specified in the statute, i.e., the one-year period of review. Remand Redetermination at 17 & n.3. The Department’s reasoning that “[bjecause it is necessary to calculate a POR-average cost for the cost recovery test, it is necessary to include a cost for every quarter in which a sale of a CONNUM occurred,” id. at 20, is not consistent with the language or purpose of the statute. Because the Department’s method does not comply with the rule established by § 1677b(b)(2)(D), the court must order- Commerce to perform its recovery-of-costs test for HYSCO in a way that complies with the statutory directive.
2. On Remand, Commerce Must Reconsider its Application of Quarterly Cost Methodology to Union’s and HYSCO’s DIFMER Adjustments and Constructed Value Determinations
With the exception of the Department’s revised recovery-of-costs test, the Remand Redetermination retained the use of the quarterly cost methodology in all instances where it was used in the Final Results, including difference-in-merchandise (“DIF-MER”) adjustments when comparing similar merchandise and constructed value (“CV”) determinations.
In their comments on the Remand Re-determination, neither HYSCO nor Union objected specifically to the Department’s use of unindexed quarterly cost data for DIFMER adjustments or CV. However, both maintained general objections to the Department’s deviation from the normal method of using POR-wide cost averages. See HYSCO’s Comments 2-8; Union’s Comments 5-6; Oral Tr. 9, 17-18, 25-30; see also Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1324. As it did in the Final Results, the Department concluded that a 25% or greater fluctuation in the cost of steel substrate together with a “reasonable correlation” with price of the good justified the Department’s use of the quarterly cost methodology in the Remand Redetermination, with the exception of the recovery-of-costs test, as discussed supra. Remand Redetermination 24-26. Both plaintiffs argue that, for various reasons, the circumstances of this administrative review do not warrant the application of shorter cost averaging periods. Union’s Comments 5-14; HYSCO’s Comments 5-8. For example, both plaintiffs argue that there was not a sufficient nexus between steel substrate costs and CORE prices to justify the use of shorter averaging periods and that the Department’s previous practice required more than a reasonable correlation. Union’s Comments 10-14; HYSCO’s Comments 6-8. Union argues that the 25% threshold for substrate cost fluctuation was met in its case only because Commerce performed a major input adjustment and instead should have looked at actual, not adjusted, costs. Union’s Comments 7-9.
The court does not address all of the objections raised by Union and HYS-CO because it finds insufficient the Department’s explanation for the continued use of quarterly cost averaging periods for DIFMER and CV. That explanation is that it is “the Department’s normal practice” to calculate COP, CV, and the DIFMER adjustment “in the same manner.” Remand Redetermination 20-21. Standing behind its “normal practice” and providing no further explanation, Commerce does not address the question of why using unindexed quarterly cost data in the specific context of DIFMER and CV ensures a more accurate dumping margin. Also related to the question of accuracy is the fact that the Remand Redetermination does not inform the court whether using quarterly costs influenced the Department’s decision to use surrogate costs for CV and DIFMER in the manner similar to that the court found objectionable above, i.e., in the application of the recovery-of-costs test to HYSCO when quarterly CONNUM-specific data were not available. The court directs Commerce to address these matters on remand.
3. Commerce Must Reconsider Its Departure from the Normal Method for the Identification of the Contemporaneous Month
The Department’s decision to proceed with a quarterly cost methodology influenced another decision in the Remand Re-determination, which involved the manner of making price-to-price comparisons between home market and U.S. sales. When comparing export prices to home market sales, Commerce is limited in its averaging of home market prices “to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale.” 19 U.S.C. § 1677f-l(d)(2). In the Final Results, Commerce followed its standard practice in administrative reviews and calculated dumping margins using an average-to-transaction comparison method according to 19 C.F.R. § 351.414(c)(2). Union Steel Mfg. Co., Ltd., 36 CIT at -, 837 F.Supp.2d at 1325. Under this method, Commerce compares the price of a weighted average of sales of the foreign like product in the home market to an individual U.S. sale of subject merchandise. 19 C.F.R. § 351.414(b)(3). Generally, Commerce will average, and use for comparison, only those home market sales that incurred during the “contemporaneous month” of the U.S. sale. Id. § 351.414(e)(1). Where there are no home market sales of the foreign like product during the same month as the U.S. sale, the Department’s regulation prescribes a “normal” method to determine the contemporaneous month: the so-called “90/60-day window” method. Id. § 351.414(e)(2). However, Commerce departed from this “normal” method in the Final Results, concluding that it was inappropriate to compare U.S. sales with home-market sales occurring outside the quarter in which the U.S. sale occurred. Union Steel Mfg. Co., Ltd., 36 CIT at -, 837 F.Supp.2d at 1325-26. Instead, Commerce determined that “it is appropriate in this case to match sales only within the same quarter.” Id., 36 CIT at -, 837 F.Supp.2d at 1326.
In contesting the Final Results, Union and HYSCO objected to the Department’s deviation from the 90/60-day window period rule. Id., 36 CIT at -, 837 F.Supp.2d at 1325. Reviewing these claims, the court noted that “the Department’s decision to use a non-standard method of determining the contemporaneous month was solely a consequence of the decision to apply a non-standard quarterly cost methodology.” Id., 36 CIT at-, 837 F.Supp.2d at 1326. Commerce itself, in its request for voluntary remand, questioned aspects of its quarterly cost methodology in the fifteenth review, and the court ordered Commerce to reconsider the quarterly cost methodology as used in the Final Results. Id. at 1325-26. The court also ordered Commerce, on remand, to reconsider the decision to depart from the normal method of determining the contemporaneous month as prescribed in the Department’s regulation. Id.
On remand, Commerce retained the contemporaneous month methodology it applied in the Final Results. Remand Redetermination 27. Commerce explained that it continued to find it “appropriate to depart from the normal method of determining the contemporaneous month” because it continued to “determine that the changes in Union’s and HYSCO’s [cost of manufacturing] during the POR due to fluctuating raw material input costs [were] significant.” Id. at 27-28. According to Commerce, “[w]hen significant cost changes have occurred during the POR, these same conditions are typically accompanied by changes in prices as the market reacts to changing economic conditions.” Id. at 28. In these situations, Commerce argues, “price-to-price comparisons should be made within the shorter cost-averaging period to lessen the margin distortions caused by changes in sales prices which result from significantly changing costs.” Id. Thus, in the Department’s view, “comparing home market sales from one quarter to U.S. sales during another quarter of the POR when the unadjusted comparison market price does not reflect the contemporaneous price changes that have occurred through the date of the U.S. sale distorts the dumping analysis” and it is therefore “appropriate in this case to match sales only within the same quarter.” Id. at 29.
Both Union and HYSCO continue to oppose the departure from the 90/60-day window period. Union maintains that the Department’s methodology is unlawful because the shortened comparison window led to fewer identical sales matches, contravening the statutory preference for matching identical merchandise. Union’s Comments 14-19. HYSCO submits that the Department’s methodology is unreasonable because the artificial three-month comparison window creates distortions in the final margin that undermine the statutory interest in accuracy. HYSCO’s Comments 8-11.
The court concludes that it cannot affirm the Department’s departure from the 90/60-day comparison window in favor of a quarterly comparison window on the rationale Commerce provided in the Remand Redetermination. As the Department’s regulation, 19 C.F.R. § 351.414(e)(2), establishes a normal method for selecting the comparison month, Commerce must provide an explanation justifying a deviation from this method. See NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1328 (Fed.Cir.2009) (“Once Commerce establishes a course of action, however, Commerce is obliged to follow it until Commerce provides a sufficient, reasoned analysis explaining why a change is necessary.”); see also Save Domestic Oil, Inc. v. United States, 357 F.3d 1278, 1283-84 (Fed.Cir.2004) (“[I]f Commerce has a routine practice for addressing like situations, it must either apply that practice or provide a reasonable explanation as to why it departs therefrom.”). The rationale Commerce offers does not provide such an explanation.
The Department’s methodology raises two issues that the Remand Redetermination fails to resolve. First, by shortening the standard window period by half (ie., from six months to the three months), the Department’s method sacrifices identical matches for the sake ' of some form of contemporaneity. It thus caused Commerce to resort more often to matches of similar merchandise or to a CV calculation even though actual price comparisons inherently yield a more accurate margin than do comparisons of similar merchandise or the use of CV. See 19 U.S.C. § 1677b(a), (e). The Remand Redetermination explains that cost fluctuations in the price of steel substrate, which Commerce presumed to affect price, justify shortening the comparison window. Commerce, however, provided no reasoning beyond this presumption, nor does Commerce explain how its method produced the most accurate margin possible. The court therefore considers the Department’s rationale conclusory. Commerce must address this deficiency on remand.
The second issue raised by the Department’s choice of contemporaneous month is whether Commerce permissibly shortened the comparison window period in the particular way that it did: by limiting comparisons of a U.S. sale to home market sales occurring only in the quarter in which the U.S. sale occurred. By doing so, Commerce largely dispensed with the hierarchy, reflected in 19 C.F.R. § 351.414(e)(2), of matching a U.S. sale with earlier months of home market sales before resorting to subsequent months in a situation where no match could be made in the month in which the U.S. sale occurred. The Remand Redetermination does not explain why Commerce chose a method that deviated significantly from this hierarchy by shortening the comparison window. For example, if a U.S. sale made in the first month of a quarter had no match in the month in which it occurred, it could not be matched with a home market sale (or sales) occurring in the immediately preceding month, despite the preference embodied in the regulation for the use of earlier months before the use of later months. Under the regulation, a match occurring as early as the third month before the month of the U.S. sale is preferred to a match occurring in the month following the month of the U.S. sale. See 19 C.F.R. § 351.414(e)(2).
Accordingly, in a second remand redetermination, Commerce must reconsider its methodology for identifying reasonably corresponding contemporaneous months for Union’s and HYSCO’s sales of subject merchandise and, in so doing, address the two specific issues the court has raised.
The cases Commerce cited for the point that courts have sustained its method are not binding on the court. This includes the decision in Garofalo, which the United States Court of Appeals for the Federal Circuit (“Court of Appeals”) issued pursuant to Federal Circuit Rule 36 and therefore is not precedential. See Fed. Cir. R. 36 (allowing entry of a judgment of affirmance without opinion when certain conditions exist and an opinion would have no precedential value). Moreover, the court must consider the methodology on the facts of this case and according to the rationale Commerce put forth.
Finally, the Department’s insistence that neither Union nor HYSCO identified unreasonable matches resulting from the Department’s methodology does not convince the court that this methodology must be sustained. See Remand Redetermination 31. The methodology has the inherent characteristic of reducing the number of identical matches, as defendant concedes. Def.’s Resp. 27 (“[T]he shortened window may not have provided for every identical match that could have been made using the standard window period____”).
Before the court, defendant, citing 19 C.F.R. § 351.414, argues that “Commerce reasonably exercised the discretion permitted by the regulation’s use of the term ‘normally’ ” after determining that the factual scenario presented warranted a shortening of the comparison window period. Def.’s Resp. 26. Defendant submits that this Court has held that the use of the term “normally” affords Commerce discretion in determining when the normal situation does not apply, based on the circumstances presented. Id. (citing KYD v. United States, 33 CIT 299, 311, 613 F.Supp.2d 1371, 1382 (2009), SeAH, 34 CIT at-, 704 F.Supp.2d at 1376). The non-precedential cases defendant cites, like those cited by Commerce in the Remand Redetermination, do not offer the court a basis upon which to sustain the Department’s decision as to contemporaneous month. The regulation affords Commerce discretion in its sales comparison methodology, but in this case, the particular method Commerce adopted as an alternative to the normal method raises unanswered questions that relate to the accuracy of the result.
C. The Remand Redetermination Lawfully Determined that the Non-Laminated, Painted CORE May Not Be Compared to the Laminated Core as Products “Identical in Physical Characteristics”
Prior to the court’s first opinion in this action, defendant requested, and the court granted, a voluntary remand to allow Commerce to reconsider aspects of the “model-match” methodology applied to Union under section 771(16)(A) of the Tariff Act, 19 U.S.C. § 1677(16)(A). Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1327. The model-match methodology is used by Commerce to compare prices of subject merchandise with home market prices of the foreign like product. Specifically, Commerce wanted to reconsider its decision to treat Union’s plastic-laminated CORE (specifically, polyethylene terephthalate (PET) or polyvinyl chloride (PVC) plastic film) as “identical in physical characteristics” with certain painted, non-laminated CORE. Id. During the administrative review, Commerce had rejected a proposal made by Union to treat laminated CORE as a separate model-match category. Id. Before the court, Union argued that on the basis of obvious physical differences between laminated and painted CORE, the Department’s finding that the two groups of products are “identical” is unsupported by substantial record evidence. Id. In remanding the issue, the court held that Commerce “may not compare as identical merchandise Union’s sales of the painted and non-laminated CORE with Union’s sales of laminated CORE absent a finding, supported by substantial evidence on the record, that the physical differences distinguishing the two product groups are minor and not commercially significant.” Id.
On remand, Commerce altered its model-match methodology so that Union’s laminated CORE products and non-laminated, painted CORE products are no longer considered identical in physical characteristics under § 1677(16)(A). Remand Re-determination 32-33. Commerce found, based on an examination of Union’s anti-dumping questionnaire responses, that “laminated CORE products by their very nature are not painted products” as the laminated products are “coated by attaching a plastic film to a CORE substrate, and lamination is done in lieu of painting.” Id. at 35. Commerce also found that “ ^laminating the steel substantially increases both the production costs and the sales prices of laminated products visa-vis other painted products.’ ” Id. at 36 (quoting Union Steel Questionnaire Resp. 6 (Feb. 5, 2009) (Admin.R.Doc. No. 4845) (“Union’s Questionnaire Resp.”)). Based on an examination of Union’s price and cost data, Commerce noted that “PET film and PVC film are more expensive than the various paints used to produce non-laminated, painted CORE products.” Id. at 35 (citing Union Steel Supplemental Questionnaire Response 15 (Apr. 9, 2009) (Admin.R.Doc. No. 4915) (“Union’s Supplemental Questionnaire Resp.”)). Commerce identified record evidence showing that “Union’s customers sometimes require specific characteristics related to PET or PVC film, while other painted products are not suitable” and that “Union specifically distinguishes laminated products from other painted products in product codes.” Id. at 36 (citing Union’s Supplemental Questionnaire Resp. at 13-14, B-21). Commerce concluded that because “[rjecord evidence establishes significant differences in the physical characteristics between laminated CORE products and non-laminated, painted CORE products ... compelling reasons exist for the Department to alter its classification of the physical characteristics in this remand proceeding.” Id. at 37.
The Department’s separation of laminated CORE products from non-laminated, painted CORE products for purposes of its model-match methodology complies with the court’s remand order and is supported by substantial record evidence of the physical and commercial differences between the respective products. No party opposes this redetermined model-match methodology in comments filed before the court. See Union’s Comments 19-20. The court, therefore, affirms this aspect of the Remand Redetermination.
D. The Court Sustains the Department’s Use of Zeroing in the Final Results to Calculate Union’s Weighted Average Dumping Margin
In the Final Results, Commerce applied its “zeroing” methodology to calculate Union’s weighted average dumping margin, under which it determines a dumping margin for each sale of subject merchandise and then converts negative margins to zero margins before calculating a weighted average percentage margin. See Union Steel Mfg. Co., Ltd., 36 CIT at-, 837 F.Supp.2d at 1327-28. Noting that Commerce abandoned the use of zeroing in antidumping investigations while continuing to apply zeroing in periodic administrative reviews, Union challenged the Department’s use of zeroing, arguing that Commerce inconsistently and unlawfully interpreted the statutory provision defining “dumping margin,” 19 U.S.C. § 1677(35)(A), contrary to basic rules of statutory construction. Id., 36 CIT at -, 837 F.Supp.2d at 1328 (citation omitted). Defendant requested, and the court granted, a voluntary remand on the zeroing issue in light of the decision of the in JTEKT Corp. v. United States, 642 F.3d 1378, 1383-85 (Fed.Cir.2011) (“JTEKT Corp.’’), in which the Court of Appeals questioned the legality of the Department’s construction of section 1677(35)(A) and required the Department to provide an adequate explanation of the Department’s inconsistent interpretation of the statute vis-á-vis administrative reviews and investigations. Id. The court directed the Department, on remand, to “either modify its decision to apply the zeroing methodology in the fifteenth review or, alternatively, provide an explanation that satisfies the requirements the Court of Appeals imposed in ... JTEKT Corp.” Id., 36 CIT at -, 837 F.Supp.2d at 1329.
In the Remand Redetermination, Commerce continued to use zeroing but, as directed by the court’s remand order, provided an explanation as to why it eonsidered the use of that methodology to be in compliance with the Tariff Act despite the Department’s discontinuation of zeroing in antidumping duty investigations. Remand Redetermination 44, 48-60 (stating that the Department’s interpretation reasonably resolves the ambiguity in section 771(35) of the Act “in a way that accounts for the inherent differences between the result of an average-to-average comparison,” as used in investigations, and “the result of an average-to-transaction comparison,” as used in administrative reviews).
The Court of Appeals decided Union Steel, LG Hausys, Ltd. v. United States, 713 F.3d 1101, 1101 (Fed.Cir.2013) (“Union Steel ”), on April 16, 2013, after Commerce had already issued its Remand Re-determination. In Union Steel, the Court of Appeals affirmed the Department’s use of the zeroing methodology in circumstances analogous to those presented by this case involving an administrative review of an antidumping duty order.- The court considers Union Steel dispositive of the zeroing issue presented by this case and sustains the use of zeroing in the Final Results.
E. The Court Must Order a Second Remand of the Department’s Decision to Use the Date of Shipment as