Slip Op. 12-60 UNITED STATES COURT OF INTERNATIONAL TRADE

HOME PRODUCTS INTERNATIONAL, INC., Plaintiff,

v. UNITED STATES, Defendant. Before: Leo M. Gordon, Judge Consol. Court No. 11-00104

OPINION and ORDER [Remand results sustained; De fendant-Intervenor’s motion fo r reconsideration denied; Plaintiff’s motion for reconsideration granted.] Dated: May 3, 2012 Frederick L. Ikenson, Larry Hampel, Bl ank Rome LLP, of Washington, DC for Plaintiff Home Products International, Inc. Carrie A. Dunsmore, Trial Attorney, Co mmercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. for Defe ndant United States. With her on the brief were Tony West, Assistant A ttorney General, Jeanne E. Davidson, Director and Patricia M. McCarthy, Assistant Directo r. Of counsel on brief was, Rachael W. Nimmo, Office of the Chief Counsel for Impo rt Administration, In ternational Department of Commerce of Washington, D.C. for Defendant United States. William E. Perry, Emily Lawson, Dors ey & Whitney LLP, of Seattle WA, for Defendant-Intervenor Since Ha rdware (Guangzhou) Co., Ltd. Gordon, Judge: This consolidated acti on involves an administrative review conducted by the U.S. Department of Commer ce (“Commerce”) of the antidumping duty order covering Floor-Standing, Metal-Top Ir oning Tables from China. See FloorStanding, Metal-Top Ironing Tables and Cert ain Parts Thereof fr om the People’s Republic of China, 76 Fed. Reg. 15,295 (Dep’t of Comme rce Mar. 21, 2011) (finalConsol. Court No. 11-00104 Page 2 results admin. review) (“Final Results”); s ee also Issues and Decision Memorandum for Ironing Tables from China, A-570- 888 (Mar. 14, 2011), available at http://ia.ita.doc.gov/frn/summary/PRC/2011- 6560-1.pdf (last visited May 3, 2012) (“Decision Memorandum”). Before the court are the Final Results of Redetermination (“Remand Results”), Mar. 14, 2012, ECF No. 83, filed by Commerce pursuant to Home Produc ts Int’l, Inc. v. United States, 36 CIT ___, 810 F. Supp. 2d 1373 (Jan. 6, 2012) (“Home Products”). Also before the court are two motions for reconsideration, one filed by Since Hardware (Guangzhou) Co., Ltd. (“Since Hardware”) seeki ng vacatur of (1) this court’s order in Home Products sustaining Commerce’s sele ction of surrogate financial statements (because Since Hardware failed to timely file an administrative case brief and exhaust administrative remedies), Home Products, 36 CIT ___, 810 F. Supp. 2d at 1377, and (2) this court’s order deeming waived Since Hardware’s challenge to Commerce’s surrogate value determination for broker age and handling, Memorandum and Order, Jan. 3, 2012, ECF No. 62 , as amended Ja n. 4, 2012, ECF No. 63 (“Memorandum and Order”). Home Products Inter national, Inc. (“HPI ”) filed the other motion and seeks reconsideration of the court’s order in Ho me Products sustaining Commerce’s decision to value Since Hardware’s carton input us ing market economy prices, Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1376-77.Consol. Court No. 11-00104 Page 3 The court has jurisdiction pursuant to Secti on 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006), 1 and 28 U.S.C. § 1581(c) (2006). For the reasons set forth below, the Remand Results are sustained, Since Hardware’s motion for reconsideration is deni ed, and HPI’s motion for reconsideration is granted. I. Remand Results In the Final Results Commerce calculat ed the surrogate hourly wage rate using ISIC Revision 3 data from Ecuador, Egypt, Indonesia, Jordan, the Philippines, Peru, Thailand, and the Ukraine. ISIC Revision 3, however, did not contain data from India, the primary surrogat e country. It was this specific issue—Commerce’s decision to use only ISIC Revision 3 data and thereby exclude labor data from the primary surrogate country—that the court remanded to Commerce. Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1379-80. In discussing the nece ssity of a remand, the court noted the persuasiveness of a block-quoted passage fr om Shandong Rongxin Imp. & Exp. Co. v. United States, 35 CIT ___, ___, 774 F. Supp. 2d 1307, 1315 (2011), which addressed an identical issue and explained the pot ential unreasonableness of Commerce using only ISIC Revision 3 data and excluding Indian labor data. The Shandong court remanded the issue to Commerce to “explain why the need fo r consistency across ISIC revisions predominates over t he need for a broad basket of count ries to value labor,” or “to review which qualifying countries have reported data under a prior ISIC revision

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19 of the U. S. Code, 2006 edition.Consol. Court No. 11-00104 Page 4 which satisfy the agency’s other requirements. ” Shandong, 35 CIT at ___, 774 F. Supp. 2d at 1315. Likewise, here, the court directed Commerce to address the “specific issues” quoted from Shandong, “ and if necessary, include Indian data in its calculation.” Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1380. On remand, Commerce included Indian data in its surrogate labor calculation, using data from ISIC Revisions 2 & 3 (C ommerce also included labor data from Nicaragua, as well as from the eight countri es used in the Final Results). Remand Results at 3-4. As a resu lt, Since Hardware’s margin changed from 67.37 percent to 66.06 percent. Id. at 12. Since Hardware challenges two aspects of the Remand Results: First, that Commerce erred by lim iting the remand proceeding to one issue raised in Shandong (ISIC Revision 3 and the excl usion of Indian data); and second, that Commerce should have applied its new l abor wage rate policy, Antidumping Methodologies in Proceedings Involving Non–M arket Economies: Valuing the Factor of Production: Labor , 76 Fed. Reg. 36,092 (June 21, 2011) (“New Labor Wage Rate Policy”). Neither of these arguments is persuasive. Since Hardware contends that the Re mand Results are in error because Commerce did not address all of the iss ues raised and addressed by the court in Shandong. Since Hardware’s Comments on Re mand Results at 3-5, Consol. Court No. 11-00104, Apr. 4. 2012, ECF No. 90 (“Since Hardware’s Comments”). Since Hardware, however, has misread Home Products and the sc ope of the remand order. The remand was directed to the limited question of whet her Commerce properly excluded labor data from countries that reported under ISIC Revi sion 2. Home Products, 36 CIT at ___, 810Consol. Court No. 11-00104 Page 5 F. Supp. 2d at 1379 (“Since Ha rdware does raise one issue from Commerce’s labor wage rate determination that merits a remand: Commerce’s selection of the industryspecific data from [ISIC].”) (emphasis added). The court’s block quotation from Shandong relates exclusively to the issue of whether Commerce reasonably excluded ISIC Revision 2 data, and addresses no other aspects of Commerce’s labor wage rate valuation. Id. Commerce therefore was not required to address broader aspects of the labor calculation implicated in Shandong. Since Hardware also argues that on remand Commerce should have applied its New Labor Wage Rate Policy——a methodology not in effect at the time of the Final Results. Since Hardware’s Comments at 5-8. Although the court understands Since Hardware’s desire to obtain the benefit of this new poli cy, the court cannot direct Commerce by affirmative injunction to apply that policy retroactively to this proceeding. See, e.g., Laizou Auto Brake Equip. Co. v. United States, 32 CI T 711, 722 (2008) (“At the time the new methodology is finalized and effective, it becomes the best available information, but until that point, Commerce mu st be granted some discretion to assess the advantages and disadvantages of applying a work-in-progress methodology in place of an existing one.”). And bec ause the court cannot mandate that Commerce must as a matter of law use only Indian labor data, Ho me Products, 36 CIT at ___, 810 F. Supp. 2d at 1378, Since Hardware had to establish as a factual matter that “India, and India alone, is both economically comparable to China and a significant producer of comparable merchandise.” Id. That would have entailed an analysi s (and presentment to the court) of record information deta iling the (1) economic comparability and (2)Consol. Court No. 11-00104 Page 6 production of comparable merchandise, for each country used by Commerce in its labor analysis—demonstrating that India alone was the one, correct choice for labor data. Since Hardware, though, did not attempt that “specific argument .” Id. With that said, the Remand Results are thorough, co mplete, and resolve any potential unreasonableness in Commerce’s utilization of the ISIC data. The Remand Results must therefore be sustained. II. Since Hardware Motion for Reconsideration Since Hardware has also filed a motion for reconsideration pursuant to USCIT Rule 59 seeking vacatur of (1) this c ourt’s order in Home Products sustaining Commerce’s selection of surrogate financ ial statements (because Since Hardware failed to timely file an administrative case brief and exhaust administrative remedies), Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1377, and (2) this court’s order deeming waived Since Hardware’s cha llenge to Commerce’s surrogate value determination for brokerage and handling, Me morandum and Order, Consol. Court No. 11-00104, Jan. 3, 2012, ECF No. 62. Disposition of a Rule 59 motion is “withi n the sound discretion of the court.” USEC, Inc. v. United States, 25 CIT 229, 230, 138 F. Supp. 2d 1335, 1336 (2001). Such motions are not granted to permit an unsuccessful party to re-litigate a case, but are granted in order “to addre ss a fundamental or significant flaw in the original proceeding.” Id. To that end, “a court’s pr evious decision will not be disturbed unless it is ‘manifestly erroneous.’” Id., 25 CIT at 230, 138 F. Supp. 2d at 1337.Consol. Court No. 11-00104 Page 7 A. Surrogate Country Financial Statements Shortly after Since Hardware comm enced its action (Court No. 11-00105, consolidated with Court No. 11-00104), HPI f iled a motion to dismiss Since Hardware’s complaint pursuant to USCIT Rule 12(b)(5). See HPI Mot. to Dismiss, Court No. 11- 00105, May 26, 2011, ECF No. 27 (“HPI Mot. to Dismiss”). C ount One of Since Hardware’s complaint challenges Commerce’ s selection and use of financial statements used to derive financial ratios to val ue overhead, SG&A, and profit. See Since Hardware Compl. ¶ 12, Court No. 11-00 105, Apr. 28, 2011, ECF No. 9 (“Since Hardware Compl.”). In its motion to dismiss, HPI explai ned that Since Hardware failed to timely file its administrat ive case brief, which Commerce therefore did not consider in its deliberations. HPI Mot. to Dismiss at 2 (c iting Decision Memorandum at 2, n.1). HPI further explained that HPI in its administrative case brief did not challenge or even mention Commerce’s surrogate fi nancial ratios (for factor y overhead, SG&A expenses, and profit), and that Since Hardwa re therefore said nothing at all on this subject in its rebuttal brief because Since Hardware “ had nothing to rebu t.” Id. at 3. HPI then argued that Count One must be dismissed because Since Hardware had failed to raise the issue at the administr ative level when it ha d the opportunity. Id. at 6-9 (“[Since Hardware] did not file a Ca se Brief. Its failu re deprived HPI of the opportunity to respond to [S ince Hardware’s] arguments; it failed to permit the development of a record suitable for administr ative review let alone judicial review. It failed to present an issue for [Commerce] to decide and yet it now urges the Court, in Count One of its Complaint, to conclude t hat [Commerce’s] decision, although notConsol. Court No. 11-00104 Page 8 challenged administratively, should be set aside as being unsupported by substantial evidence or otherwise not in accordance with law.”). During a conference call with the parties, the court denied HPI’s motion without prejudice because it created an unusual procedural posture for trade actions under 28 U.S.C. § 1581(c) and USCIT Rule 56.2 (which typically do not involve USCIT Rule 12(b)(5) motions). See Order, Court No. 11- 00105, June 21, 2011, ECF No. 33. The court then circulated a proposed scheduling order that, among other thin gs, sought to confirm “that [Since Hardware] has appropriately exhausted its administrative rem edies by presenting its arguments to the agency in the first instance.” See Letter and draft Scheduling Order at 2, Consol. Court No. 11-00104, June 23, 2011, ECF No. 20. Wi thout objection, the court entered the scheduling order. Scheduling Or der, Consol. Court No. 11-00104, June 28, 2011, ECF No. 22 (“Scheduling Order”). When Since Hardware filed its opening brief, it disregarded the exhaustion problem, plunging right into the merits of Commerce’s financial statement selection. See Since Hardware’s Mem. in Supp. of R. 56.2 Mot. 12-16, Aug. 18, 2011, ECF No. 30 (“Since Hardware Br.”). Since Hardware committed this omission despite knowing it had an exhaustion problem (carefu lly detailed in HPI’s motion to dismiss), and contrary to the clear direction in the Scheduling Order that Plainti ff have “appropriately exhausted its administrative remedies by presenting its arguments to the agency in the first instance.” Scheduling Order at 2. It was not until its repl y brief that Since Hardware argued that it had raised the issue with Commerce, Since Hardware Reply Br. at 6, Nov. 17, 2011, ECF No . 51, even though it had not, as HPI explained in its motionConsol. Court No. 11-00104 Page 9 to dismiss. Since Hardware then suggested t hat the court “use its discretion and waive the exhaustion requirement.” Id . Since Hardware assumed, without citation, that the court may simply waive Commerce’s regulati on establishing deadlines for case briefs, 19 C.F.R. § 351.309(c)(2), witho ut first reviewing whether Commerce’s enforcement of its deadlines constitutes an abuse of discretion. Needless to say, the court sustained Comme rce’s financial statement selection: Since Hardware only filed a rebuttal brief during the administrative proceeding and did not challenge Commerce's selection of surr ogate financial statements. See November 17, 2010 Letter fr om Since Hardware to Commerce, PR 83. In its brief before the court, Since Hardware raises for the first time issues relating to the selection of surrogate financial statements, issues that it could have raised before the agen cy in its case brief. Since Hardware has therefore failed to exhaust its administrative remedies. See 28 U.S.C. § 2637(d); Carpenter Tech. Corp. v. United States , 30 CIT 1373, 1374–75, 452 F. Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo , 548 U.S. 81, 88–90 (2006)); see also 19 C.F.R. § 351.309(c)(2). Accordingly, Commerce's select ion of financial statements is sustained. Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1377. There is no manifest error in this ruling. Since Hardware nevertheless introduces an entirely new argument as support for its reconsideration request. Ad mitting an “administrative mistake” by counsel that caused the late filing of its case brief, Since Hardware now argues for the first time that “Commerce . . . abused its discretion in refusi ng to accept the Case Brief of Since Hardware.” Since Hardware’s Mot. for Reconsideration 3-4, Consol. Court No. 11-00104, Feb. 2, 2012, ECF No. 71. Defendant observes in response, “With no small amount of irony, Since Hardware attempts to resuscitate its denial that it failed toConsol. Court No. 11-00104 Page 10 exhaust its administrative remedies by rais ing yet another argument that it failed to exhaust.” Def.’s Resp. to Since Hardware’s Mot. for Reconsideration 2, Consol. Court No. 11-00104, Mar. 3, 2012, ECF No. 81. During the administrative review Commerce notified interested parties that administrative case briefs were due on November 15, 2010. See Memorandum from Analyst to File, No v. 3, 2010, P.R. 80. 2 Since Hardware failed to meet that deadline. Commerce considered Since Hardware’s explanation for its tardiness, was not persuaded, and rejected its submission. See Letter from Law Firm of Dorsey Whitney to Commerce, Nov. 17, 2010, P.R. 83; Lette r from Program Manager /IA to Law Firm of Dorsey Whitney Rejecting Submission, Nov. 22, 2010, P.R. 85. Before the court Since Hardware did not challenge Commerce’s reject ion of its untimely-f iled case brief. See Since Hardware Compl., Court No. 11-00105; Since Hardware Br., Consol. Court No. 11-00104, Aug. 18, 2001, ECF No. 30. Since Hardware wa ited until after the decision in Home Products to complain about this aspect of the administrative process. This is too late. Since Hardware abandoned this claim by not raising it in its complaint and opening brief. See USCIT R. 8 Practice Comment (“For an action described in 28 U.S.C. § 1581(c), the complaint shall contai n: . . . (2) a statement of the issues presented by the action . . . .”); see also USCIT R. 56.2(c). Since Hardware offers no excu se for its failure to raise this issue in the normal course of the litigat ion. Instead, Since Hardware r equests reconsideration because of

2 “P.R.” refers to a document in the public administrative record.Consol. Court No. 11-00104 Page 11 an “intervening change in the controlling law, . . . .” Since Hardware Mot. for Reconsideration at 3, Consol. Court No. 11-00104, Feb. 2, 2012, ECF No. 71 (citing Grobest & I-Mei Indus. v. Un ited States, 36 CIT ___, ___, 815 F. Supp. 2d 1342, 1364 (Jan. 18, 2012)). Grobest, how ever, is not an intervening change in controlling law. Grobest applied existing law to review Commerce’s enforcement of procedural deadlines for an abuse of discretion. Grobes t, 36 CIT at ___, 815 F. Supp. 2d at 1364- 67. Like the plaintiff in Grobest, w ho vigorously and repeat edly contested before Commerce the rejection of an untimely separ ate rate certificati on, and who then before the court both pled and briefed that same issue, Since Hardware was free to (1) challenge before Commerce the reje ction of its case brief; (2) allege in its complaint that Commerce committed an abuse of discretion by rejecting Since Hardware’s case brief; and (3) brief that allegation wi th detailed legal and factual support in its motion for judgment on the agency record pursuant to USCIT Rule 56.2. That approach would have allowed Commerce and HPI to respond, firs t at the administrativ e level, to Since Hardware’s arguments (perhaps resolving the issue at that point), and then again before the court with their own lega l and factual arguments. Th e court would then have had ample opportunity to review the record and evaluate Since Hardware’s argument, as the court did in Grobest. Since Ha rdware instead chose to aband on the issue, first at the administrative level, and then again before the court (immediat ely challenging the merits of Commerce’s financial statement selection). In so doing Since Ha rdware disregarded a basic principle of judicial review of admi nistrative decisions (despite the specificConsol. Court No. 11-00104 Page 12 reminders of that principle provided in HPI’s motion to dism iss and the Scheduling Order). For the foregoing reasons Since Hardware ’s motion to reconsider this court’s order in Home Products sustaining Commerc e’s selection of su rrogate financial statements (because Since Hardware failed to timely file an administrative case brief and exhaust administrative remedies), Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1377, is denied. B. Brokerage and Handling Since Hardware also moves for reconsid eration of this court’s order deeming waived Since Hardware’s challenge to Co mmerce’s surrogate value determination for brokerage and handling (“B&H”). In that order the cour t had to deem waived Since Hardware’s challenge to Commerce’s br okerage and handling calculation because it was too cursory to warrant the court’s consideration: Although Since Hardware challenges Commerce’s B&H calculation, it does so in a threadbare manner, without citation to any authority: DOC’s B&H calculati on is unsupported and is in error. As HPI re cognized in its comment, “there is no direct evidence as to the packed, cubic volume of product (and corresponding weight).” Use by DOC of the HPI’s weight cannot be supported. DOC has not established a correlation between the cost for B&H with the decreased shipment weight. The B&H costs are to be based on the product being shipped. The surrogate cost utilized by DOC is linked to that su rrogate weight shipped, not HPI’s constructed weig ht. Failure to utilizeConsol. Court No. 11-00104 Page 13 the accompanying surrogate shipped weight impermissibly distorts the B&H calculation. Since Hardware Br. at 11-12. Missing is any effort at identifying standards against which the court can evaluate the reasonableness of Commerc e’s B&H calculation (e.g., how Commerce typically calculates B&H in the non-market economy context, etc.). Since Hardware’s “argument” is all the more difficult to count enance because the Scheduling Order specifically cautioned again st just such a submission: Be advised that the court will not permit plaintiff to shift to the court and the other parties t he burden of establishing the ossature for plaintiff’s arguments against the standard of review the court applies to reso lve them. Instead, the court will summarily sustain Commerce’s action. Scheduling Order at 4, ECF No. 22. Rule 56.2(c)(2) requires that briefs “must include t he authorities relied on and the conclusions of law deemed wa rranted by the authorities.” USCIT R. 56.2(c)(2). As Si nce Hardware has failed to satisfy this basic requirement, and abide by the express instructions of the Scheduli ng Order, the court deems this issue waived and sustains Commerce’s B&H calculation. See MTZ Polyfilms, Ltd. v. United States, 33 CIT ___, ___, 659 F. Supp. 2d 1303, 1308-09 (2009); Fujian Lianfu Forestry Co. v. United States , 33 CIT ___, ___, 638 F. Supp. 2d 1325, 1350 (2009); United Stat es v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by so me effort at developed argumentation, are de emed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel 's work, create the ossature for the argument, and put fles h on its bones.”) (internal citations omitted). Memorandum and Order 1-3. In its moti on for reconsideration Since Hardware concedes that its argument fo r brokerage and handling was i nadequate, but blames theConsol. Court No. 11-00104 Page 14 page limits contained in the Scheduling Order as the cause. This apologia rings hollow. On June 23, 2011, the court sent a letter to the parties with a draft scheduling order. Letter to Parties, Consol. Court No. 11-001 04, June 23, 2011, ECF No. 20. That letter asked the parties to confer with one anot her on “proposed dates and page limits set forth in the attached draft scheduling order.” Id. (emphasis added). It also advised the parties to notify the court’s case manager if they had any requested revisions to the draft scheduling order. Id. Since Hardwa re offered no changes to the proposed page limits. The Scheduling Order al so contained the following proviso: “3. Page Limits. If the parties are unable to brief this matter wit hin the page limits set forth above, they are encouraged to file a motion for additional time (preferably on consent) rather than for additional pages.” Scheduling Or der at 4. Since Hardware did not file a motion for additional time, or a motion for additional pages. A separate revelation from a related ca se also casts serious doubt upon Since Hardware’s “page limits” excuse. In a case involving the subsequent administrative review (commenced shortly a fter this action), the court entered a scheduli ng order with no specific page limits. In t hat action Since Hardware fil ed the identical brokerage and handling argument, verbatim (except for one wo rd). See Since Hardware Mem. of Points and Authorities in Supp. of R. 56.2 Mot. at 11, Consol. Court No. 11-00106, Sept. 8, 2011, ECF No. 42. Whatever the cause of Si nce Hardware’s inadequate submission, “page limits” evidently were not it.Consol. Court No. 11-00104 Page 15 There being no manifest error in the court’s order deeming Since Hardware’s brokerage and handling argument waived, the court must deny Since Hardware’s motion for reconsideration. III. HPI Motion for Reconsideration HPI has also filed a motion for reconsi deration of the court’s order sustaining Commerce’s decision to value Since Hardwa re’s carton input using market economy prices, Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1376- 77. In its brief challenging Commerce’s determination, HPI noted that Commerce “may have misunderstood [its] argument.” HP I Br. in Support of Mot. for J. on Agency Rec. at 5, Consol. Court No. 11-00104, June 18, 2011, ECF No . 29 (“HPI Br.”). To be candid, the court did not fully grasp HPI’s argument ei ther. The court found Defendant’s response more understandable: “Since Hardware report ed the carton input as one factor, Since Hardware treats the input as one factor, and Commerce verified Since Hardware’s input as one factor.” Def.’s Resp. to Pls.’ Mot. for J. on Agency R. at 18-19, Consol. Court No. 11-00104, Oct. 20, 2011, ECF No. 43. The court, however, misinterpreted Defendant’s argument to mean that Since Hardware purchased its cartons as one factor. This was an important predicate of the court’s decision in Home Products. See Home Products, 36 CIT at ___, 810 F. Supp. 2d at 1376-77 (“the court cannot identify any record evidence that demonstrates that Since Hardware purchased cartons as two inputs (cartons and corrugated paper)).” That predicate, however, is incorrect. The court now understands that Since Hardwa re separately purchased cartons and corrugated paper, but accounted for them as one carton input, by piece. HPI isConsol. Court No. 11-00104 Page 16

therefore correct in its moti on that the court “overlooked our argument, or in any event misunderstood it.” HPI Mot. for Reh’g at 3, Consol. Court No. 11-00104, Jan. 9, 2012, ECF No. 65. Having a somewhat more complete under standing of HPI’s ar gument, the court agrees that this issue needs to be remanded to Commerce for furt her explanation. What makes this issue challenging is the carton input’s two-com ponent nature, cartons and corrugated paper, each with their own prices and weights, each being sourced from market and non-market economy suppliers. Adding to the complexity is Since Hardware’s accounting treatment for the input, resulting in “pieces” of carton (which may be either carton or corrugated paper). Further complicating matters is the “conversion factor” that Since Hardware applied to calc ulate the market economy threshold, for which a detailed public expla nation is not possible without divulging Since Hardware’s confidential business proprietary information. Although Commerce concluded in the Decision Memorandum that “there is nothing on the record to suggest that Since Ha rdware’s reported conversion factor is unreasonable,” Decision Memorandum at 11, HP I appears to raise a legitimate concern that may test the reasonable ness of the conversion fact or. HPI questions whether Since Hardware’s carton accounting is suit able for Commerce’s market economy test, explaining that because a “piece” may have different weights or costs from other “pieces,” a “piece” cannot constitute a const ant variable to measure the “volume” or “amount” of cartons under Commerce’s market economy test. The upshot is that unless Commerce applies a constant variable when m easuring the “volume” or “amount” ofConsol. Court No. 11-00104 Page 17

cartons from each of the market and non-mark et sources, the resulting percentage of market economy purchases may likely be ina ccurate (if not altogether meaningless). HPI amplifies this explanation with a representative problem of Since Hardware’s input accounting and conversion factor: Under Since Hardware’s tec hnique . . . if there were a universe of three items—two pieces of ME-originating corrugated paper, each weighing ten grams, and one NMEoriginating carton weighing 40 0 grams, Since Hardware would contend that [Commerce’ s] 33 percent threshold has been met: since each of the three items would have an assigned weight of 140 grams ( 420/3), the two pieces of MEoriginating corrugated paper woul d constitute 66 percent of all POR purchases, thereby sa tisfying the Department’s 33 percent test. Indeed, even a single 10-gram piece of MEoriginating corrugated paper woul d suffice to satisfy that test[.] HPI Br. at 5. HPI’s explanation does seem to test the reasonableness of Since Hardware’s conversion factor, and by extension, Co mmerce’s conclusion that Since Hardware satisfied the 33 percent market economy thres hold. The court, though , cannot evaluate the reasonableness of Commer ce’s decision-making reflected in one conclusory sentence in the Decision Memorandum. To adeq uately review this issue, the court needs Commerce to further elucidate its conc lusion that Since Hardware’s market economy carton purchases do indeed exceed 33 per cent of the total volume of Since Hardware’s carton purchases during the per iod of review. The court will therefore remand this issue to Commerce to provide that explanation.Consol. Court No. 11-00104 Page 18

IV. Conclusion For the foregoing reasons, it is hereby ORDERED that the Remand Results are sustained; it is further ORDERED that Since Hardware’s Motion for Reconsideration, ECF No. 71, is denied; it is further ORDERED that HPI’s Motion for Recons ideration, ECF No. 65, is granted, and this action is remanded to Commerce to further explain its conclusion that Since Hardware’s market economy carton purchases exceed 33 percent of t he total volume of Since Hardware’s carton purchases during the period of review; it is further ORDERED that Commerce shall file its remand results on or before June 19, 2012; and it is further ORDERED that, if applicable, the par ties shall file a proposed scheduling order with page limits for co mments on the remand results no later than seven days after Commerce files its remand results with the court.

/s/ Leo M. Gordon Judge Leo M. Gordon

Dated: May 3, 2012 New York, New YorkERRATA Home Products International, Inc. v. Un ited States., Consol. Court No. 11-00104, Slip Op. 12-60, dated May 3, 2012.

Page 8: In line 7, replace “[Since Hardware]” with “plaintiff”.

May 4, 2012