Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE

___________________________________ : XINJIAMEI FURNITURE : (ZHANGZHOU) CO., LTD. : : Plaintiff, : : v. : Before: Richard K. Eaton, Judge : UNITED STATES, : Court No. 11-00456 : Defendant. : : ___________________________________ :

OPINION [Plaintiff’s motion for judgment on the agency reco rd is granted, and the matter is remanded to the Department of Commerce.] Dated: March 11, 2013 Kutak Rock LLP ( Lizbeth R. Levinson and Ronald M. Wisla ), for plaintiff. Stuart F. Delery , Acting Assistant Attorney General; Jeanne E. Davidson , Director, Claudia Burke , Assistant Director, Douglas G. Edelschick , Trial Attorney, Civil Division, Commercial Litigation Branch, United States Depa rtment of Justice; Office of the Chief Counsel for Import Administration, United St ates Department of Commerce ( Whitney Rolig ), of counsel, for defendant.
Eaton, Judge: At issue is whether Commer ce’s selection of the surrogate value for cold-rolled steel coil as part of a new shippe r review under the antidum ping duty order on Folding Metal Tables and Chairs from the People’s Republic of China (“PRC”) was supported by substantial evidence. Before the court is th e motion for judgment on the agency record, made pursuant to USCIT Rule 56.2, of plaintiff Xinjiame i Furniture (Zhangzhou) Co., Ltd. (“plaintiff”Court No. 11-00456 Page 2 or “Xinjiamei”), an exporter of metal folding ch airs from the PRC. By this motion, Xinjiamei challenges the surrogate value fo r cold-rolled steel coil used in the Department of Commerce’s (“Commerce” or the “Department”) Final Results. See Folding Metal Tables and Chairs from the PRC, 76 Fed. Reg. 66,036 (Dep’t of Commerce Oct. 25, 2011) (final results of antidumping review and new shipper review) (“Final Results”), a nd accompanying Issues and Decision Memorandum for the Annual 2009–2010 New Shipper Review of the Antidumping Duty Order on Folding Metal Tables and Chairs from the PRC (Dep’t of Commerce Oct. 18, 2011) (“Issues & Dec. Mem.”). In making its argument, Xinjiamei insists that Commerce selected a “surrogate value [for cold-rolled steel coil that] was aberrational” b ecause 1) the sample size, on which Commerce’s selected value is based, “was infinitesimal when compared” with that of plaintiff’s proposed surrogate value and when compared with “Indian consumption of cold-roll ed steel coil during the Indian fiscal year coinciding w ith the POR”; 2) the selected value was three times higher than other surrogate values on the record; and 3) Co mmerce’s selected value was not corroborated by other record evidence, while plaintiff’s proposed surrogate value was co rroborated by values it placed on the record. Pl.’s Mem. of Points & Aut horities in Supp. of Mot. for J. on Agency R. 2 (ECF Dkt. No. 21-1) (“Pl.’s Br.”). Defendant argues that Commerce’s selection of a surrogate value was based on the best available information (and its determination was thus supported by substa ntial evidence) because the surrogate value “(1) was publicly available, (2) reflected broad market averages, (3) was contemporaneous with the POR, (4) was tax-exclus ive, and (5) was the most specific [Harmonized Tariff Schedule (“HTS”)] categor y” to the type of steel used by pl aintiff. Def.’s Mem. in Opp. to Pl.’s Mot. for J. on Agency R. 4 (ECF Dkt. No. 23) (“Def.’s Br.”). Defendant further maintains that the surrogate value was not aberrational. Def.’s Br. 4.Court No. 11-00456 Page 3 For the following reasons, the plaintiff’s mo tion is granted and the matter is remanded.

STANDARD OF REVIEW “The court shall hold unlawful any determin ation, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or ot herwise not in accordance with law . . . .” 19 U.S.C. § 1516a(b)(1)(B)(i) (2006).

DISCUSSION

I. Background On July 29, 2010, at Xinjiamei’s request, Comm erce initiated a new sh ipper review under the 2002 antidumping duty order cove ring the subject metal folding ch airs. Folding Metal Tables and Chairs from the PRC, 75 Fed. Reg. 44,767 (Dep ’t of Commerce July 29, 2010) (initiation of the new shipper review); Folding Metal Tabl es and Chairs from the PRC, 67 Fed. Reg. 43,277 (Dep’t of Commerce June 27, 2002) (antidumping orde r). The period of revi ew (“POR”) was June 1, 2009 through May 31, 2010. Because the PRC is a non-market economy country (“NME”), Commerce was required to “calculate[] a normal value [1] for [Plaintiff] according to its factors of production methodology.” 2 Def.’s Br. 2. Plaintiff “particip ated in the new shipper review by

1 To determine an exporter’s “dumping margin” Commerce subtracts the “export price or constructed export price of the s ubject merchandise” from the “normal value”. See 19 U.S.C. 

### § 1677(35)(A).

2 Commerce’s factors of production methodol ogy is used to determine the normal value of exported merchandise by pricing th e factors of production used to produce the merchandise. Commerce does so by using surrog ate data from “one or more market economy countries that are—(A) at a leve l of economic development comparab le to that of the [exporter’s] ( continued . . . )Court No. 11-00456 Page 4 responding to all information requests issued by the Department and by submitting surrogate value information to Commerce both before and afte r the preliminary resu lts.” Pl.’s Br. 3; see Def.’s Br. 2. “In the preliminary results, Commerce selected India as the surrogate country [3] and used the [Global Trade Atlas (“GTA”)] data for HTS [4] category 7211.2990 [5] to generate a surrogate value for cold-rolled steel coil of . . . approximately $1,942.80/metric ton (MT) based on an import quantity of 716.882 MT.” Def.’s Br. 2; Folding Me tal Tables and Chairs from the PRC, 76 Fed. Reg. 35,832, 35,839 (Dep’t of Commerce June 20, 2011) (p reliminary results of antidumping and new shipper review). During the administrative proceedings, plain tiff challenged Commerce’s use of the GTA data and the surrogate value derived from it as fa iling to meet the “best available information”

( . . . continued ) country, and (B) significant produc ers of comparable merchandise” and then “add[ing] an amount for general expenses and profit plus the cost of containers, coverings, and other expenses.” 19 U.S.C. §§ 1677b(c) (1), (4)(A)–(B) (2006).

3 Neither party challenges the selectio n of India as the surrogate country.

4 “HTS” refers to the Indian Harmonized Tariff System. Def’s Br. 6. The HTS is India’s analogue to the Harmonized Tariff System of the United States (“HTSUS”). Both systems are based on the World Customs Organi zation’s Harmonized Commodity Coding and Classification System, and are used to determine the tariff classifications of goods entered into India and the United States, respec tively. Commerce regularly relies upon this type of data when valuing inputs.

5 The GTA data is “data from the Indian Im port Statistics as reported in the Global Trade Atlas (GTA) for Indian Harmonized Tariff System (H TS) category 7211.2990.” Def’s Br. 6.Court No. 11-00456 Page 5 standard. 6 In addition to its case brief, plaintiff submitted information for an alternate surrogate value to Commerce and other data it claimed reflect ed the value of cold-rolled steel coil outside of India. Based on its submission, plaintiff argued that Commerce’s preferred value, based on the GTA data, was aberrationally high and that its own proposed surroga te value constituted the best available information. Pl.’s Final Surrogate Value Submission (P.R. 51) (Pl.’s Data Submission). Specifically, plaintiff submitted, as an alternative value, advertising data from “JSW Steel Limited, one of the four largest Indian producers of steel products” (“JSW advertised data”) which covered the June 2009 to May 2010 POR. Pl.’s Data Submission 2. This data was derived from information published on JSW’s website and the submission included calculations made by plaintiff to adjust the pricing by backing out taxe s. Pl.’s Data Submission 2. The surrogate value from the adjusted JSW advertised data was subs tantially lower than the value derived from the GTA data. 7 To corroborate the proposed surrogate value, plaintiff submitted documents showing “the average unit price of cold-rolled steel coil and sheet sold by JSW Steel [rather than the advertised price] during the fiscal year April 1, 2009 and March 31, 2010” of $712.94/MT (“JSW sales data”) taken from JSW’s A nnual Report 2009–2010. Pl.’s Br. 5. As shall be se en, this latter information did not coincide precisely with the POR.

6 Pursuant to statute, the information used by Commerce to value the factors of production must be the “best available information re garding the values of su ch factors in a market economy country or countries considered to be appropriate.” 19 U.S.C. § 1677b(c)(1).

7 The value in dollars fluctuates from $733.11/MT to $681.54/MT in plaintiff’s brief and its submission to Commerce. Compare Pl.’s Br. 4, with Pl.’s Data Submission 2. Although the difference is not explicitly explained, the value in rupees is uniformly 3 2.99 rs/kg in all sets of papers. Therefore, the fluctuation seems to be due to currency valuation changes between the submissions.Court No. 11-00456 Page 6 In addition to the JSW data, Xinjiamei provided evidence relating to non-Indian pricing of cold-rolled steel. This evidence included “monthl y cold roll steel coil prices from Brazil” (“Brazilian data”) reflecting th e period of June 2009 to February 2010, “ex factory cold-rolled steel prices from Northern Europe” (“Northern European data”) covering the period of February 23, 2009 to April 27, 2009, and “world export market ‘benchmark’ prices” (“Benchmark data”) covering the period of July 2010 to December 2010, a ll of which were taken from the metals.com website. Pl.’s Br. 5. The values reflect ed in these sources ranged from $524.12/MT 8 to $743/MT.
Pl.’s Br. 5. With respect to the volume of cold-rolled steel found in the data plaintiff placed on the record, the JSW sales data also showed that Commerce’s GTA data represented less than one-fiftieth of one percent of the cold-rolled steel production of only one Indian domestic producer, JSW Steel. Commerce does not dispute that this is the case. In the Final Results, Commerce c ontinued to use the GTA data. See Final Results Fed. Reg. at 66,037; Issues & Dec. Mem. at 3. The department acknowledged th at “in the past [it] considered high average unit valu es . . . based on relatively sm all aggregate quantities to be potentially aberrational data.” Issu es & Dec. Mem. at 3. Nonethele ss, it stated that “it [did] not automatically reject” data based on a small quantity if “other market data indicates that the per unit values of those imports fall within a reasonable ra nge.” Issues & Dec. Mem. at 3. It is worth noting that, having made this statement, Comme rce pointed to no other market information indicating that its chosen surrogate value was within a reasonable range.

8 This number appears in the parties’ su bmissions in gross tons but has been converted into MT here for ease of comparison.Court No. 11-00456 Page 7 The Department also found that the other data offered by Xi njiamei was insufficient “to demonstrate that the per-unit value under [the GTA data was] aberrational.” Issues & Dec. Mem. 3–4. According to Commerce, it disregarded the Br azilian data, the Northern European data, and the Benchmark data because they did not sufficiently overlap with the POR and because they represented export data from count ries that were not potential surr ogate countries. Issues & Dec. Mem. at 4. For Commerce, “these export prices [were] not relevant to the prices paid by producers [of the subject merchandise] in India because [the y] do not reflect the domestic or import prices paid by producers [of the subject merchandise] in India.” Issues & Dec. Mem. at 4. The Department therefore concluded th at Xinjiamei’s corroborative data did not demonstrate that the GTA data was aberrational or that the JSW data was the best availa ble information. Issues & Dec.
Mem. at 4. Commerce also determined that the GTA data was more reflective of domestic prices in India. Commerce “disagree[d] . . . that the ex istence of lower AUV prices of a single company [JSW] constitutes sufficient evidence to compel the Department to question the use of the [GTA] data.” Issues & Dec. Mem. at 5. Commerce r easoned that the JSW data was unreliable because the data was sales offers, not records of actual sales, and came from only one company. Issues & Dec. Mem. at 5. Because Commerce “prefers to va lue factors using prices that are broad market averages,” the GTA data, representing all Indian im ports, was preferable. Issues & Dec. Mem. at 5. Based on these findings, Commer ce took no steps to evaluate i ndependently th e reliability or non-distortive quality of its pr eferred GTA data, even though it was aware that it was dealing with a data set more than a thousand times smaller than others on the record. Notably, Commerce did not discuss the sample size of its preferred GTA data at all, ot her than to observe that in oneCourt No. 11-00456 Page 8 prior review it had found country -wide import statistics from a sm all data set preferable to a specific company’s statistics based on a larger data set. 9 In other words, Commerce only indicated that it preferred country-w ide data here, even though that da ta represented a comparatively tiny sample. Commerce did not explain how such a sma ll sample, even if based on country-wide data, yielded a non-aberration al surrogate value.

II. Legal Framework Under 19 U.S.C. § 1675(a)(2)(B), Commerce shall, upon request, conduct administrative reviews “for new exporters and producers.” Th e purpose of these new shipper reviews is to determine whether exporters or producers, whose sa les have not been previously examined, are (1) entitled to their own antidumping duty rates under an order, and (2) if so, to calculate those rates. See Hebei New Donghua Amino Acid Co. v. United States , 29 CIT 603, 604, 374 F. Supp. 2d 1333, 1335 (2005). Here, Commerce found that plaintiff was en titled to its own rate and commenced to determine that rate by calculating normal value. When merchandise that is the subject of a new shipper review is exported from a nonmarket economy country, 10 such as the PRC, Commerce,

9 The determination to which Commerce ci tes, Prestressed Concrete Wire Strand from the PRC, 75 Fed. Reg. 28,560 (Dep’t of Co mmerce May 21, 2010) (final determination of sales at less than fair value) (“PC Strand”), was never appealed to th is Court. It also deals with a distinguishable ratio from that present here. There, the ratio of sample size of the underlying import statistics to the sample size of the underl ying company data was roughly 1:3. PC Strand’s Issues & Dec. Mem. at Comment 1.b, 75 ITADOC 28560, 2010 WL 2150320 (ITA). Here, the ratio of imports to sales is roughly 1:2000. Pl.’s Br. 12.

10 A “nonmarket economy country” is “a ny foreign country that [Commerce] determines does not operate on market principles of cost or pricing structures, so that sales of ( continued . . . )Court No. 11-00456 Page 9 under most circumstances, determines normal valu e by valuing the factors of production used in producing the merchandise by employing surrogate data. 11 The statute directs Commerce to value the factors of production “based on the best availa ble information regarding the values of such factors in a market economy country or countries consider ed to be appropriate by the [Department].” 19 U.S.C. § 1677b(c)(1). Specifi cally, Commerce’s task in a nonmarket economy review is to determine, using surrogate costs, wh at a producer’s costs woul d be if the inputs were valued at market prices. See Tianjin Mach. Imp. & Ex. Corp. v. United States , 16 CIT 931, 940, 806 F. Supp. 1008, 1018 (1992). When determining prices for the factor s of production, Commerce must decide what evidence constitutes the best available information to determine their value. A reviewing court determines not whether “the information Commer ce used was the best available, but rather whether a reasonable mind could co nclude that Commerce chose the best available information.” Zhejiang DunAn Hetian Metal Co., Ltd. v. United States , 652 F.3d 1333, 1341 (Fed. Cir. 2011) (citation and internal quotation marks omitted). Nonetheless, Commerce’s determination cannot
( . . . continued ) merchandise in such country do not reflect the fair value of the merchandise.” 19 U.S.C. § 1677(18)(A). “Because it deems China to be a nonmarket economy country, Commerce generally considers information on sales in China and financial information obtained from Chinese producers to be unreliable for determining, unde r 19 U.S.C. § 1677b(a), the normal value of the subject merchandise.” Shanghai Foreign Trade Enters. Co. v. United States , 28 CIT 480, 481, 318 F. Supp. 2d 1339, 1341 (2004). Therefore, because th e subject merchandise comes from the PRC, Commerce constructed normal value by pricing th e factors of production using surrogate data from India. See 19 U.S.C. § 1677b(c)(4).

11 Section 1677b(c)(4)(A) requi res that “in valuing f actors of production, [the Department] shall utilize, to the extent possible, the prices or costs of f actors of production in one or more market economy countries that are . . . at a level of economic development comparable to that of the nonmarket economy country.”Court No. 11-00456 Page 10 be opaque as to methodology. Indeed, in making the determination, “Commerce must provide a rational explanation for its choice.” Peer Bearing Co.-Changshan v. United States , 35 CIT __, ___, 752 F. Supp. 2d 1353, 1372 (2011) (citations omitted). Commerce is further obligated to “establis h[] antidumping margins as accurately as possible.” Shakeproof Assembly Components v. United States , 268 F.3d 1376, 1382 (Fed. Cir. 2001). Thus, “[w]hen confronted with a colora ble claim that the data that Commerce is considering is aberrational, Commerce must exam ine the data and provide a reasoned explanation as to why the data it chooses is reliable and non-distortive.” Mittal Steel Galati S.A. v. United
States , 31 CIT 1121, 1135, 502 F. Supp. 2d 1295, 1308 (2007) (c itation omitted). In such a case, it is not enough for Commerce to “summarily discar d the alternatives as flawed,” Commerce must also “evaluate the reliability of its own choice.” Shanghai Foreign Trade Enters. Co., Ltd. v. United States , 28 CIT 480, 495, 318 F. Supp. 2d 1339, 1352 (2004); see also Guangdong Chem. Imp. & Exp. Corp. v. United States , 30 CIT 1412, 1417, 460 F. Supp. 2d. 1365, 1369 (2006).

III. Commerce’s Selection of the GTA Data is Not Supported By Substantial Evidence From a review of the record and of the fact s and reasoning found in the Issues and Decision Memorandum, the court concludes that Commerce ha s failed to provide a rational explanation for its selection of the GTA data as the best av ailable information on the record. Commerce’s discussion in the Issues and Decision Memorandum skips a critical analytical step by failing “to question the use of the” GTA data when other ev idence on the record cas ts doubt on the reliability of its choice. Issues & Dec. Mem. 5. As noted above, this Court has repeatedly held that questiona ble data may not be chosen “only on the claim that the data selected was better than other data” on the record. Mittal SteelCourt No. 11-00456 Page 11 Galati , 31 CIT at 1135, 502 F. Supp. 2d at 1308 (“When con fronted with a colorable claim that the data that Commerce is considering is aberrationa l, Commerce must examine the data and provide a reasoned explanation as to why the data it chooses is reliable and non-distortive. He re, confronted with data that indicates that Commerce chose low volume, aberrational data, Commerce did not evaluate the data on the record in comparison to benchmarks, but instead relied only on the claim that the data selected was better than other data from the acceptable surrogate countries. Therefore, Commerce’s decision skip s over [plaintiff’s] claim that [t he selected] data is outside Commerce’s own standard of acceptability, and thus avoids an important aspect of the problem presented.” (citations omitted )). When data, giving a basis to qu estion the reliability of a surrogate value Commerce has selected is placed on the re cord, however, the Depart ment must explain why its selected data meets its “own standard of acceptability.” Id. ; Shanghai Foreign Trade Enters. , 28 CIT at 495, 318 F. Supp. 2d at 1352 (“Commerce did not explain its decision to deviate from its past practice, under which it normally would ensu re that a small quantity of imports did not produce a price that is aberrational relative to other sources of ma rket value. Before Commerce can choose among various values to select the most accurate, it must, consistent with its practice, discard those that are unreliable. . . . Commerce [mus t] evaluate the reliability of its own choice.”); Guangdong Chem. , 30 CIT at 1417, 460 F. Supp. 2d. at 1369 (“Commerce’s analysis must do more than simply identify flaws in the data sets it rejects.”). The Department’s position is that it need not evaluate the GTA data as potentially aberrational because Xinjiamei did not place suffi cient evidence on the record indicating that the GTA data was outside of the norm. In other wo rds, Commerce argues that its rejection of the Brazilian data, Northern European data, and Benchmark data left th e record bare of any evidence that the GTA data was aberrational. Curiousl y, in reaching this conclusion, Commerce did notCourt No. 11-00456 Page 12 address whether the JSW data provided a basi s to doubt the accuracy of the GTA data. The Department’s position is untenable. Xinjia mei did indeed place sufficient data on the record for a reasonable mind to question whether the GTA data was aberrational. To start, Xinjiamei demonstrated that the GTA data represen ted less than one-fiftieth of one percent of the cold-rolled steel production of only one domestic producer, JSW Steel. See Issues & Dec. Mem. at 3 (“[Plaintiff] avers that the import statistics’ 716. 882 metric tons of cold rolled steel coil imports is ‘infinitesimal’ as compared to the consumption of cold rolled steel coil in India since the import statistics represent 0.047 percent of JSW Steel Limited’s production of cold rolled steel coils and sheet.”). Commerce does not disput e that this is the case. Ind eed, the Department does not quarrel with plaintiff’s conclusion that, because JSW stee l was but one of four large Indian producers of cold-rolled steel, the small size of the GTA data when compared to the JSW data also indicates that the GTA data represents a truly miniscule pe rcentage of overall Indian cold-rolled steel production. It is apparent that Commerce skipped a critical step by failing to explain why, in light of the foregoing, its GTA data would not produce an aberrati onal surrogate value. That is, the evidence produced by plaintiff is sufficient to cause any reasonable mind to seek some explanation as to how such a small sample could be non-distortive and potentially “the best available information.”
See Zhejiang DunAn Hetian Metal , 652 F.3d at 1341. Indeed, wher e “the Commerce decision fails to establish that the small amount [of imports unde rlying the selected data] was statistically or commercially significant,” remand is appropriate for Commerce to do so, including issuance of an instruction that Commerce “state its method for determining what is an insignificant quantity.” Shanghai Foreign Trade Enters. , 28 CIT at 495–96, 318 F. Supp. 2d at 1352–53. Cf. Trust Chem Co. v. United States , 35 CIT __, __, 791 F. Supp. 2d 1257, 1265 ( 2011) (indicating that evidenceCourt No. 11-00456 Page 13 showing that the “relative quantity of imports [underlying a surrogate value] is distortive” may be enough, even absent evidence of price, to render data aberrational). It is worth noting that the propos ition that a small import volume may indicate that the data relied upon is aberrational is not the same as the proposit ion that a small import volume makes the data aberrational. Thus, the G overnment’s position that Commerce’ s ordinary practice is not to “automatically reject import data based on a lo w aggregate value if a comparison with other market data indicates that the pe r-unit values of those imports fall within a reasonabl e range” is not inconsistent with this op inion. Issues & Dec. Mem. at 3. Ra ther, a very small relative quantity of imports triggers an obligation for Commerce to expl ain why the data is not aberrational. It does not mean the data must be “automatically rejected.” Commerce, in its Issues and Decision Memora ndum, states that it will not “automatically reject” a value based on a small sample if other market data indicates that the value falls within a reasonable range of market-driven prices . Here, however, the Depart ment points to no evidence, let alone market evidence, that the GTA data yi elds a value within a reasonable range, and has chosen to disregard evidence that the value is outsi de of this range. Issues & Dec. Mem. at 4. As to the value of the steel coil itself, the di sregarded evidence that Xinjiamei placed on the record indicates that the per-uni t value derived from the GTA data is significantly higher than other values for cold-rolled steel coil on the wo rld market. As noted, the additional data sets reflected values ranging from $524.12/MT to $74 3/MT. When compared with the $1,943.80/MT value derived from the GTA data, the difference in price, between two hundred and nearly four hundred percent, is clearly substantial. See, e.g. , Peer Bearing , 35 CIT at __, 752 F. Supp. 2d at 1372–4 (remarking that a sixty percent pri ce differential was substantial).Court No. 11-00456 Page 14 The Department, however, concluded that the Brazilian data, the Northern European data, and the Benchmark data were not probative becaus e they did not overlap the POR precisely and because they represented export data from countries that were not potential surrogates. It can be presumed, however, that these countries were not candidates to be surrogates because they are at a different stage of development than China, not b ecause the prices were determined by other than market forces. Peer Bearing Co.-Changshan v. United States , 35 CIT __, at __, 804 F. Supp. 2d. 1337, 1354 (2011) (“The statute contempl ates the use of data from c ountries at a comparable level of development as the nonmarket economy country as the source of a surrogate value; it does not prohibit Commerce from considering data from developed countries as evidence to determine which information is the best available.”) (cit ation omitted). Thus, while the prices might not satisfy the requirements for surrogate values, they are sufficient to call into question the reliability of the GTA data. Next, Commerce failed to discuss further evid ence that the GTA data did not represent Indian domestic prices. That is, there was a significant disparity between the values derived from the JSW advertised data, as confirmed by the JSW pricing data, and Commerce’s selected value.
See Pl.’s Br. 10 (“Commerce’s chos en surrogate of $1,943.80 per metric ton is almost three times higher than the [advertised] JSW Steel price of $681.53 per metric ton.”). The per-unit value derived from the JSW advertised data is $681.5 3/MT reflecting a dive rgence between the GTA data and the other values on the record that is still well in excess of two hundred percent. Commerce’s argument that the JSW data was not pr obative because it represented offered prices and not actual sales is unconvi ncing. There is no evidence that the offered prices were not legitimate and plaintiff placed on the record eviden ce that actual sales were made at prices not markedly different from the offered prices. See Pl.’s Br. 5 (“[T]he average unit price of cold-rolledCourt No. 11-00456 Page 15 steel coil and sheet sold by JSW St eel during the fiscal year . . . co inciding with 10 months of the period of review . . . [was] $712.94 per metric ton.” ). While JSW’s average sales price does not cover the entire POR, it re presents sales for ten months of th e twelve month period and is strong evidence supporting the reliability of the offered prices. It is evident that Commerce was premature in finding that the GTA data was preferable to the JSW advertised data. That is, the Department was required to first determine whether the GTA data was reliable and that it was not aberrational be fore comparing it to the JSW advertised data. Where there are valid questions ra ised about the reliability of da ta based upon a small number of imports this “court remands [the] issue to Comm erce for further explanation in light of the [conflicting] data.” Mittal Steel Galati , 31 CIT at 1135, 502 F. Supp. 2d at 1307; Shanghai Foreign Trade Enters. , 28 CIT at 495, 318 F. Supp. 2d at 1352 (“Before Commerce can choose among various values to select the most accurate, it must, consistent with its practice, discard those that are unreliable.”). As a cons equence, the Final Resu lts lack a lawful ex planation, supported by substantial evidence, for Commerce’s selection of the GTA data as the surrogate value for the input of cold-rolled steel coil.

CONCLUSION AND ORDER For the foregoing reasons, it is hereby ORDERED that plaintiff’s motion for judgment on the agency record is GRANTED, and Commerce’s Final Results are REMANDED; it is further ORDERED that, upon remand, Comm erce shall issue a redetermination that complies in all respects with this Opini on and Order, is based on determ inations that are supported by substantial record evidence, a nd is in all respects in accord ance with law; it is furtherCourt No. 11-00456 Page 16 ORDERED that, should Comm erce continue using the GTA data, it must provide an adequate explanation, supported by substantial evidence, as to why that data is reliable and non-aberrational. In making this determination, Commerce must take into account the Brazilian data, the Northern European data, the Benchmark data, the JSW advertised data, and the JSW price data. Following that determination, the depa rtment shall determine a surrogate value for cold-rolled steel coil based on the best available informati on standard. In reaching its determination as to the best information availa ble, Commerce shall expressly compare the merits of any acceptable data sets on the record; it is further ORDERED that the Department may reopen the record to solicit any information it determines to be necessary to make its determination; it is further ORDERED that the remand results shall be du e on July 8, 2013; comments to the remand results shall be due thirty (30) days following fi ling of the remand result s; and replies to such comments shall be due fifteen (15) days following filing of the comments.

/s/ Richard K. Eaton Richard K. Eaton

Dated: March 11, 2013 New York, New York