Slip Op. 17-52 

UNITED STATES COURT OF INTERNATIONAL TRADE 

Before: Leo M. Gordon, Judge 

Court No. 14-00202 

 

OPINION 

[Remand results sustained.] 

William D. Kramer and Martin Schaefermeier, DLA Piper LLP (US), of Washington, 

DC for Plaintiffs CC Metals and Alloys, LLC and Globe Specialty Metals, Inc. 

 Peter A. Gwynne, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC for Defendant United States. With him on the 

brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. 

Davidson, Director, Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief 

was Devin S. Sikes, Senior Attorney, U.S. Department of Commerce, Office of the Chief 

Counsel for Trade Enforcement and Compliance of Washington, DC. 

 Sydney H. Mintzer and Jing Zhang, Mayer Brown LLP, of Washington, DC for 

Defendant-Intervenors Kuznetsk Ferroalloys OAO, Chelyabinsk Electro-Metallurgical 

Plant OAO and RFA International LP, Calgary (Kanada) Schaffausen. 

Dated: April 28, 2017 

Gordon, Judge: The U.S. Department of Commerce has filed its Final Results of 

Redetermination (“Remand Results”), ECF No. 61, pursuant to CC Metals and Alloys, 

LLC v. United States, 40 CIT ___, 145 F. Supp. 3d 1299 (2016) (“CC Metals”). The court 

in CC Metals sustained most of the issues Plaintiffs raised, but remanded two minor 

issues for Commerce to address: (1) Commerce’s treatment of certain post-sale home 

CC METALS AND ALLOYS, LLC, AND 

GLOBE SPECIALTY METALS, INC., 

 Plaintiffs, 

 v. 

UNITED STATES, 

 Defendant. 
Court No. 14-00202 Page 2 

market warehousing expenses and revenue, CC Metals, 40 CIT at ___, 145 F. Supp. 3d 

at 1308; and (2) Commerce’s possible error using a simple, as opposed to a weighted, 

average in calculating home market imputed credit expenses, id., 40 CIT at ___, 145 F. 

Supp. 3d at 1311. 

The court notes that it erred in remanding these issues to Commerce without first 

ascertaining whether either issue had a material effect on the less than fair value 

determinations. As Commerce explains in the Remand Results, neither issue does, and 

any error was therefore harmless. It was therefore a waste of administrative resources 

for the court to require a remand in this case. The court below briefly reviews Plaintiffs’ 

challenges to the Remand Results, familiarity with which is presumed. 

Treatment of Home Market Warehousing Expenses And Revenue

Commerce provides a detailed explanation in the Remand Results that its narrative 

description in the final determination was not consistent with its actual treatment of home 

market warehousing expenses and revenue in the margin calculation program, and that 

despite the error in its narrative, it did in fact account for those items lawfully under the 

statute, as well as under its regulations and practice. Remand Results at 7-13, 16-19. 

Commerce does identify one immaterial wrinkle: the inability to distinguish on-site and 

off-site warehousing revenue reported in one field of the margin program. Id. at 11-12. 

Commerce explains that this issue had no material effect on the margin (and also provides 

an alternative calculation as further support of the issue’s immateriality). Id. 

Although Plaintiffs note that on-site and off-site warehousing revenue are not separately 
Court No. 14-00202 Page 3 

distinguished in the margin program, they proffer no alternative calculations that 

demonstrate a material effect on the margin.1

Plaintiffs instead argue that the only way to address the issue of on-site 

warehousing is for Commerce to adjust for it as a miscellaneous income item, but 

Plaintiffs fail to provide any authority for this proposed treatment. Instead, they argue that 

on-site warehousing has to be treated the same as sizing revenue. Commerce, however, 

reasonably explained in the Remand Results why similar treatment was unwarranted. 

See Remand Results at 18 (“[W]e treated sizing as an offset to cost because we 

considered it to be a step in the manufacturing process, rather than a service or expense 

for finished merchandise.”) (citing Issues and Decision Memorandum at 25)). The court 

therefore sustains Commerce’s treatment of warehousing expenses and revenue. 

Imputed Credit Expenses 

In the Remand Results Commerce explained that it “inadvertently applied a simple 

average of the short-term interest rates, rather than a weighted-average of the short-term 

interest rates,” and Commerce corrected the calculation. Remand Results at 13. 

Commerce calculates the weighted-average interest rate for credit expenses based on 

the weighted-average interest rate paid by the respondent for short-term loans in the 

currency of sale. If “the respondent (the seller) has short-term borrowings in the same 

 

1 Plaintiffs suggest it is possible to ascertain which portion of total reported revenue is 

related to on-site warehousing and off-site warehousing, respectively, see

Pls.’ Comments at 4-5 n.3-4, ECF Nos. 65, 66, but for whatever reason plaintiffs chose 

not to present these figures and argument to Commerce in the first instance during the 

remand proceeding, and the court must therefore deem these arguments waived. See 28 

U.S.C. § 2637(d); Dorbest Ltd. v. United States, 604 F.3d 1363, 1375 (Fed. Cir. 2010). 
Court No. 14-00202 Page 4 

currency as that of the transaction, [Commerce uses] the respondent’s own weightedaverage short-term borrowing rate realized in that currency to quantify the credit 

expenses incurred.” Policy Bulletin 98.2: Imputed credit expenses and interest rates, 

(“Policy Bulletin 98.2”) dated February 23, 1998, found at: 

http://enforcement.trade.gov/policy/bull98-2.htm (last visited on this date). If a respondent 

has no short-term borrowings in the currency of the transaction, Commerce “will use 

publicly available information to establish a short-term interest rate applicable to the 

currency of the transaction.” Id. “Irrespective of whether the short term rate is derived from 

a respondent's actual borrowing experience or from a published source, it is always 

reflective of all short-term loans with maturities of one year or less.” Certain Oil Country 

Tubular Goods from the Republic of Philippines, 79 Fed. Reg. 41,976 (Dep’t Commerce 

July 18, 2014) (final determ.), Issues and Decision Memorandum at 18 (Comment 3) 

(emphasis added). 

In the final determination Commerce used a “simple” average of short-term rates 

derived from a small set of Chelyabinsk Electrometallurgical Integrated Plant Joint Stock 

Company’s (“CHEMK”) factoring arrangements that Commerce examined at verification. 

In the investigation Commerce had not specifically requested interest rate data for all of 

CHEMK’s factoring arrangements during the period of investigation (“POI”). At verification 

Commerce did, however, examine a small set of CHEMK’s factoring arrangements. 

Commerce, in turn, used the rates from those verified transactions to derive the shortterm interest rate for imputed credit expense. As noted, Commerce inadvertently applied 

a simple rather than a weighted-average in the calculation, an error it corrected in the 
Court No. 14-00202 Page 5 

Remand Results. 

Plaintiffs make a “legal” argument that Commerce’s use of the relatively small set 

of CHEMK’s factoring arrangements to derive the weighted-average short term rate 

violates Commerce’s interest rate selection practice because Commerce failed to use all 

of CHEMK’s factoring arrangements during the POI. Plaintiffs instead prefer that 

Commerce use ruble-denominated rates from published sources that were used in the 

preliminary determination. 

Plaintiffs misunderstand Commerce’s practice. As noted above, Commerce 

attempts to select an interest rate that is “reflective of” all short-term borrowings. In this 

case CHEMK’s complete short-term borrowing data was (for a variety of non-nefarious 

reasons) not on the record. Properly framed, the issue is simply which of the two proposed 

rates best reflects CHEMK’s short-term borrowing. A reasonable mind could choose a 

rate derived from CHEMK’s verified data as being more reflective of CHEMK’s borrowing 

experience than a rate derived from published rates with no connection to CHEMK. 

Accordingly, Commerce’s short-term borrowing rate selection is sustained. 

Conclusion

For the foregoing reasons, the Remand Results are sustained. Judgment will enter 

accordingly. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: April 28, 2017 

 New York, New York