Slip Op. 14-  UNITED STATES COURT OF INTERNATIONAL TRADE

---------------------------------------------------------------x MID CONTINENT NAIL CORPORATION, | | Plaintiff, | | v. | PUBLIC VERSION | Before: Gregory W. Carman, Judge UNITED STATES, | | Consol. Court No. 12-00133 Defendant, | | and | | DUBAI WIRE FZE and ITOCHU BUILDING | PRODUCTS CO., INC., and PRECISION | FASTENERS, LLC, | | Defendant-Intervenors. | ---------------------------------------------------------------x OPINION AND ORDER [Affirming in part and remanding in part th e final results of Commerce’s antidumping duty investigation of certain steel nails from the United Arab Emirates.] Dated: June  , 2014 Andrew W. Kentz, David A. Yocis, Jordan C. Kahn, and Nathan W. Cunningham , Picard Kentz & Rowe LLP, of Washington, DC, for plaintiff Mid Continent Nail Corporation. With them on the brief were Adam H. Gordon , Robert E. DeFrancseco, III , and Laura El-Sabaawi of Wiley Rein LLP, of Washington, DC. Carrie A. Dunsmore , Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant United States. With her on the brief were Stuart F. Delery , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, Franklin E. White, Jr. , Assistant Director. Of counsel on the brief was Melissa M. Brewer , Attorney, Office of the Chief Counsel fo r Import Administration, U.S. Department of Commerce, of Washington, DC. Bruce M. Mitchell , Mark E. Pardo , Ned H. Marshak, and Kavita Mohan , Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New Yo rk, NY, for defendant-intervenors Dubai Wire FZE and Itochu Building Products Co., Inc.Consolidated Court No. 12-00133 Page 2

Michael P. Houseand Sabahat Chaudhary , Perkins Coie LLP, of Washington, DC, for defendant-intervenor Precision Fasteners, LLC. Carman, Judge: Three cases are consolidated before the court, each challenging portions of Certain Steel Nails From the United Arab Emirates , 77 Fed. Reg. 17,029 (Dep’t of Commerce Mar. 23, 2012) (fi nal determination) (“ Final Results ”), as amended, 77 Fed. Reg. 27,421 (Dep’t of Commerce May 10, 2012) (am. fi nal determination and antidumping duty order), and the unpublished Issues and Decisi ons Memorandum incorporated by reference, see Issues and Decisions Mem. for the Less Than Fa ir Value Investigation of Certain Steel Nails from the United Arab Emirates, A-520-804 (Mar. 19, 2012), available at http://enforcement.trade.gov/frn/summary/u ae/2012-7067-1.pdf (last visited June 10, 2014) (“

I&D Memo ”). In the Final Results , the U.S. Department of Commerce (“Commerce,” “Department,” or “Defendant”) determined that nails from the United Arab Emirates (“UAE”) were being sold in the United States at less than fair value and calculated antidumping margins. Parties to the Commerce proceeding, both domestic and foreign, now challenge the Final Results . The Court upholds the Final Results in most respects but remands to Commerce to apply the improperly-withdrawn targeted dumping regulation.
B ACKGROUND Plaintiff in this consolidated action is domestic nail producer Mid Continent Nail Corporation (“MCN” or “Plaintiff”). Defend ant-Intervenors Dubai Wire FZE and ItochuConsolidated Court No. 12-00133 Page 3

Building Products Co., Inc. (collectively “D ubai Wire”) and Precision Fasteners, LLC (“Precision”) are producers of subject merchandise from the UAE. 1 I. Relationship Between Millennium and Precision In determining whether Precision sold its product into the United States at less than fair value, Commerce calculated Precision’s normal value (“NV”), representing the sales price of subject merchandise in Precision’ s home market, by means of cons tructed value (“CV”), i.e. the price at which Precision’s nails would sell in its home market (the UAE) under ordinary market conditions. Use of CV is appropriate where, as here, the respondents do not have a viable comparison market in their home country. See 19 U.S.C. § 1677b(a)(4). An important consideration in determining CV is whether any other company exercises control over the company whose CV is being calculated. MCN alleged that the UAE company Millennium Steel and Wire LLC (“Millennium”) controlled Precision through an affiliation relationship. See I&D Memo at 37. MCN submitted evidence into the record purportedly supporting the allegation of affiliation, and evidence was also gathered and placed on the administrative record by Commerce officials who visited Precision’s UAE facility to conduct verification. See generally Analysis Mem. for Precision Fasteners, LLC, C.R. (Part 2) 220 2 (“Precision Analysis Memo ”). After

1 MCN filed this action under Court No. 12-00133, and Dubai Wire and Precision entered Court No. 12-00133 as Defendant-Intervenors as of right. Separately, Dubai Wire and Precision filed their own challenges to the investigation; Dubai Wire is therefore the plaintiff in Court No. 12- 00153 and Precision is the plaintiff in Court N o. 12-00162. The cases filed by Dubai Wire and Precision are now consolidated with the current case filed by MCN.

2 “C.R.” indicates the confidential administrative record and “P.R.” indicates the public administrative record. See ECF No. 21. The C.R. and P.R. we re each submitted in two partsConsolidated Court No. 12-00133 Page 4

examining the evidence, Commerce determined that Precision was an independent company, and not an affiliate under the control of Millennium. See generally id. ; see also I&D Memo at 37.
II. Targeted Dumping Pursuant to 19 U.S.C. § 1677f-1(d)(1)(A), Commerce generally “shall determine whether the subject merchandise is being sold in the Unite d States at less than fair value” in one of two ways: by comparing “the weighted average of the normal values to the weighted average of the export prices (and constructed export prices) for co mparable merchandise,” or by comparing “the normal values of individual trans actions to the export prices (o r constructed export prices) of individual transactions for comparable merchandise .” It is common to refer to these two price comparison methods as “average-to-average” and “transaction-to-transaction,” respectively. The statute contains an exception to this general rule regarding price comparisons. Commerce “may” make its determination regarding sales at less than fair value “by comparing the weighted average of the normal values to th e export prices (or constructed export prices) of individual transactions for comparable me rchandise” if two conditions are satisfied: (i) there is a pattern of export pri ces (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and (ii) [Commerce] explains why such di fferences cannot be taken into account using [average-to-average or transac tion-to-transaction price comparisons]. 19 U.S.C. §1677f-1(d)(1)(B).

with overlapping numbers assigned to the documents, so the part will be indicated parenthetically to identify where a referenced document appears.Consolidated Court No. 12-00133 Page 5

Shortly after the Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994) established the price comparison methods and their priorities as described above, Commerce held hearings and accepted comments about how it should implement its statutory authority over targeted dumping. 3 As a result, Commerce promulgated a regulation stating that “normally” Commerce would limit th e application of the targeted dumping methodology to those sales found to be targeted. See 62 Fed. Reg. 27,296-01 (Dep’t of Commerce May 19, 1997) (final rule), codified at 19 C.F.R. § 351.414(f) (1997) (the “limiting regulation”). In 2008, Commerce published notice in the Federal Register which stated that Commerce was withdrawing the targeted dumping regulati on and would no longer be bound by it. Withdrawal of the Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations , 73 Fed. Reg. 74,930 (Dep’t of Commerce Dec. 10, 2008) (“ Withdrawal Notice ”). Although Commerce indicated that it would accept post-publication comments regarding the withdrawal, the withdrawal was given immediate effect. Id. In its investigation of nails from the UAE , MCN alleged that the respondents had engaged in targeted dumping, so Commerce analyz ed respondents’ U.S. sales data to determine whether the allegation had merit. In the preliminary results of the investigation, Commerce determined that Precision and Dubai Wire had made sales that were targeted by customer, region, and time period. 76 Fed. Reg. 68,129 (Dep ’t of Commerce Nov. 3, 2011) (preliminary

3 The practice of structuring United States sales at less than fair value by directing them toward particular purchasers, regions, or periods of time is referred to as “targeted dumping.” For a useful discussion of the Uruguay Round negotiations and subsequent amendment of price comparison methods in United States antidumping law, see Borden, Inc. v. United States , 22 CIT 233, 235-38, 4 F. Supp. 2d 1221, 1224-28 (1998).Consolidated Court No. 12-00133 Page 6

determination of sales at less than fair value) (“Preliminary Results ”); see also Targeted Dumping Memoranda , C.R. 105, 110. Commerce found, however, that the ordinary average-toaverage methodology sufficed to account for the resulting price differences, so it did not apply the average-to-transaction price comparison method. Targeted Dumping Memoranda , C.R. 105, 110 In its final determination, Co mmerce again found that the U.S. sales of Precision and Dubai Wire were targeted by customer, region, and time period. I&D Memo at cmt. 1. In the Final Results , Commerce changed its approach from the preliminary results, deciding that the averageto-average method was insufficient to account for the price differences stemming from the targeted sales. 77 Fed. Reg. at 17,031. See also I&D Memo at cmt. 4. As a result, Commerce applied the average-to-transaction method. Id. In doing so, Commerce applied the average-totransaction method to all of th e U.S. sales of Precision and Dubai Wire pursuant to the Withdrawal Notice , rather than limiting the average-to-trans action method to targeted sales as required by the limiting regulation. Id.
III. Surrogate Profit Values One of the factors Commerce may examine while determining CV, pursuant to 19 U.S.C. § 1677b(e)(2)(B)(iii), is the profit margin expect ed for production of the subject merchandise under ordinary market conditions. I&D Memo at cmt. 6. Commerce sought evidence showing surrogate profit values, and the parties to the administrative proceeding placed a number of financial statements into the record. In the Preliminary Results , Commerce relied on a surrogate financial statement from the company Arab He avy Industries (“AHI”) for profit data. 76 Fed. Reg. at 68,134. When Commerce issued the Final Results , however, Commerce instead reliedConsolidated Court No. 12-00133 Page 7

on the financial statement of the Abu Dhabi National Company for Building Materials (“BILDCO”) for surrogate profit data. I&D Memo at 29. Commerce found that BILDCO’s financial statement most closely satisfied the surrogate value selection criteria on which the agency relies when selecting between potential surrogate financial statements, and therefore used it as a source for surrogate profit values. Id. at 29-30. IV. Interest Rate Imputed to Loan from Affiliate Dubai Wire had received a long-term loan from an affiliated company at a non-market interest rate. Id. at 32. Commerce sought evidence from which it could impute a fair market interest rate to the loan for purposes of calculating Dubai Wire’s financial expenses when determining its CV. Upon examining the relevant record evidence, Commerce determined to impute a rate at the mid-point of Dubai Wire’s 2010 short-term loans.
D ISCUSSION I. Jurisdiction and Standard of Review The Court has jurisdiction over this case purs uant to 28 U.S.C. § 1581(c). The factual findings and legal conclusi ons of Commerce in the Final Results will be upheld unless “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial eviden ce is commonly described as being “more than a mere scintilla,” and “such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” NSK Corp. v. U.S. Int’l Trade Comm’n , 716 F.3d 1352, 1364 (Fed. Cir. 2013) (internal citations and quotations omitted). In assessing s ubstantial evidence, the court determines whether the reviewed agency decision is reasonable given the record as a whole,Consolidated Court No. 12-00133 Page 8

“even if some evidence detracts from the [agency’s] conclusion.” Nippon Steel Corp. v. United States , 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). When Commerce interprets the antidumping statute, which is within Commerce’s purview via authority delegated by Congress, the court reviews Commerc e’s interpretation under the two-step framework set out in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 842-45 (1984). Within the Chevron framework, the court will defer to Commerce’s interpretation unless there is “ unambiguous statutory language to the contrary” or Commerce has reached an “unreasonable interpretation of language that is ambiguous.” United States v. Eurodif S.A. , 555 U.S. 305, 316 (2009). Unless Commerce’s interpretation of ambiguous language in the statute is “arbitrary, capricious, or manifestly contrary to the statute,” the court will not set it aside. Chevron , 467 U.S. at 844. II. Affiliation During the investigation, MCN urged Comme rce to find that Precision and Millennium were affiliated on the basis that (1) Millennium was able to exercise control over Precision in a manner meeting the definitions in 19 U.S.C. § 1677(33), and (2) that the two companies were affiliates via a close supplier relationship. I&D Memo at 37. The antidumping statute states in relevant part that the term “affiliated” applies to “[a]ny person who controls any other person and such other person.” 19 U.S.C. § 1677(33)(G). For purposes of the statute, “a person shall be consid ered to control another person if the person is legally or operationally in a pos ition to exercise restraint or di rection over the other person.” 19 U.S.C. § 1677(33). Commerce regulations state th at “[i]n determining whether control overConsolidated Court No. 12-00133 Page 9

another person exists,” Commerce “will consider the following factors, among others: Corporate . . . groupings; franchise or joint venture agreements; debt financing; and close supplier relationships.” 19 C.F.R. § 351.102(b)(3). Even where these factors are present, Commerce “will not find that control exists . . . unless the relationship has the potential to impact decisions concerning the production, pricing, or cost of th e subject merchandise or foreign like product.” Id. These factors will be considered in light of “the temporal aspect of a relationship in determining whether control exists; normally, temporary circumstances will not suffice as evidence of control.” Id. Although the statute and regulations ar e silent as to the definition of a close supplier relationship, the Statement of Admin istrative Action defines it as a relationship “in which the supplier or buyer becomes reliant upon the other.” Uruguay Round Agreements Act, Statement of Administrative Acti on, H.R. Rep. No. 103-316, at 838 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4174-75 (“ SAA ”). Control will be found where one party has the ability to control another, regardless of whether su ch control has actually been exercised. See TIJID, Inc. v. United States , 29 CIT 307, 321-22, 366 F. Supp. 2d 1286, 1299 (2005). During the investigation, MCN based its allegations of control on several grounds. First, MCN claimed that Millennium and Precision shared employees. Precision Analysis Memo at 2. According to MCN, the list of its managers that Precision submitted to Commerce during the POI included an individual identified in a 2006 letter as a [[ ]] of Millennium. MCN also pointed to a statement made after the POI by a former Precision employee on his LinkedIn profile, in which he referred to himself as the new [[ ]]. Id. at 3. Precision responded that the 2006 letterConsolidated Court No. 12-00133 Page 10

only shows that the person in question worked for Millennium “two years before Precision was formed” and that the man’s statement on Link edIn “was neither authorized nor known by Precision” and was “an inaccurate representation” by a former Precision employee. Id. Second, MCN claimed that Millennium and Precision were alter egos that held themselves out to the public as a single entity. Id. MCN noted that the two companies shared a telephone number; had identi cal website design; [[ ]]; were regarded as a single entity in the listings of the International Staple, Nail, and Tool Association (“ISANTA”) and Inte rnational Code Council – Evaluation Service (“ICC-ES”); and marked a recent product shipment “Manufactured by Precision Fasteners (Millennium Steel and Wire).” Id. Precision attributed these mixed identifications to the [[ ]], which [[ ]]. This involved [[ ]]. Id. at 4. Precision noted that [[ ]]. Id. Third, MCN alleged that Precision and Millennium [[ ]], with Precision [[ ]]. Id. According to MCN, Precision [[ ]]. Id. According to Precision, it [[ ]] pursuant to [[ ]]. Id. Precision notes that at verification, Commerce confir med that Precision [[ ]]Consolidated Court No. 12-00133 Page 11

and [[ ]]. Id. Precision explained that its wire-drawing machines [[ ]], which Millennium agreed to do [[ ]]. Id. Fourth, MCN claimed that Precision and Millennium were affiliated through a close supplier relationship because [[ ]]. Id. at 4-5. MCN argued that Precision was dependent on [[ ]], and that [[ ]] Precision’s ability to produce nails [[ ]]. Id. at 5. Thus, MCN claimed, [[ ]]. Id. Precision responded that [[ ]] during the POI, after which [[ ]]. Id. Precision noted that it moved to avoid [[ ]] by buying machines, but [[ ]] for access to high capacity electricity. Id. Finally, MCN also urged Commerce to find affiliation based on the [[ ]] between [[ ]] resulting from Precision’s [[ ]]. Id. at 6. MCN claimed that Precision [[ ]], which is typical of an affiliate rather than [[ ]]. Id. Precision countered that its [[Consolidated Court No. 12-00133 Page 12

]] were typical of [[ ]] and it fully [[ ]] its own production versus the [[ ]]. Id. Commerce examined the evidence put forward by MCN and found no affiliation between Precision and Millennium under 19 U.S.C. § 1677( 33) or via a close supplier relationship resulting in reliance. Id. at 6-7

. Looking first at the alleged close supplier relationship, Commerce stated that the threshold question was of reliance and the rele vant standard was found in Stainless Steel Wire Rod from the Republic of Korea, 71 Fed. Reg. 59,739 (Dep’t of Commerce Oct. 11, 2006) (preliminary results of antidumping duty administrative review) (“ SSWR from Korea ”), where reliance was determined base d on “the exclusivity and uniqueness of the supply relationship,” and “not the level of cooperation between parties.” Id. at 7. Commerce noted that Precision was able to produce all subject merchandise except [[ ]], and that Precision [[ ]] decreased throughout the POI. Id. at 7-8. Given this pattern of decreasing [[ ]], Commerce found the SSWR from Korea reliance standard for affiliation not met. Id. at 8. Commerce noted that [[

]]. Id. The characteristics of the [[ ]] did not evince [[ ]] because they [[Consolidated Court No. 12-00133 Page 13

]]. Id. Commerce distinguished between cooperative [[ ]] and a reliance relationship by noting that Precision did not have to cooperate [[ ]]. Id. at 9. The [[ ]] did not provide for “legal or operational” control because they did not provide for [[ ]] or advancing one party’s interests over the other since both companies could [[ ]]. Id. at 9-10. Regarding shared employees, Commerce found that the “evidence does not substantiate that during the POI Precision and Millennium employed even one individual concurrently,” since the companies’ [[ ]]. Id. at 12. Commerce found no evidence that the individual who was a General Manager of Millennium in 2006 [[ ]] came on at Precision as a Manager in 2010. Id. at 13. Commerce declined to credit the statement on a Li nkedIn profile that the profile holder worked for “Millennium/Precision” for two months after the end of the POI. Id. On Precision and Millennium holding themselves out as a single entity, Commerce found that the confusion stemmed from the [[ ]], but found none of the evidence to suggest any “discernible ulterior motive” or “appreciable leverage to exert control.” Id. at 13-15. As to [[ ]], Commerce found that the evidence, especially from verification, did not show that the companies [[ ]], but did demonstrate some [[ ]].Consolidated Court No. 12-00133 Page 14

Id. at 15-16. Commerce found this minor entanglementinsufficient to demonstrate a finding of affiliation via control. Id. at 16. As for financial relations hip, Commerce noted that financial relationship is not a control factor under 19 C.F.R. § 351.102(b)(3). Id. Further, Commerce found no evidence of debt financing on the record. Id. A. Contentions of the Parties 1. MCN Before the Court, MCN contends that Commer ce acted contrary to the substantial record evidence in determining that Precision was not affiliated with Millennium. MCN’s argument is that “overwhelming evidence on the record of this investigation indicates that Millennium has the ability or capacity to exert control over Prec ision, including the potential to impact decisions concerning the production, pricing or cost of th e subject merchandise.” Mem. in Supp. of Mid Continent Nail Corp.’s Rule 56.2 Mot. (“ MCN Mem. ”) at 13-14, ECF No. 41. MCN reiterates before the Court the indicators of potential affiliation that MCN raised during the investigation: [[ ]] ( id. at 14-17); Precision’s [[ ]] from Millennium ( id. at 18); an individual identified on LinkedIn as a [[ ]] ( id. at 18-19); an individual who in 2006 worked as a [[ ]] at Millennium listed as Precision’s General Manager during the POI ( id. at 19); listings at ISANTA and ICC-ES implying the companies were alter egos of each other ( id. at 19-20); [[ ]] ( id. at 20-21); and the companies using [[ ]] ( id. at 21). MCN also claims Precision was reliant on [[ ]] in aConsolidated Court No. 12-00133 Page 15

close supplier relationship in which [[ ]] needed to function. Id. at 22-26. MCN claims that Commerce improperly ignored, or wrongly weighed, the record evidence regarding [[ ]], shared employees, alter egos, and [[ ]]. See id. at 12-22. Regarding Commerce’s decision about a close supplier relationship, MCN also challenges howCommerce weighed the evidence. Id. at 22-33. MCN additionally claims that Commerce made two specific errors in characterizing the record: (a) in finding that Precision could produce subject merchandise, [[ ]], is belied by evidence that Precision [[ ]], id. at 26-27; and (b) in finding that Precision “utilizes [[ ]] only for the [[ ]],” id. at 27. MCN alleges that these findings are contrary to evidence that Precision [[ ]] and continued to do so [[ ]] purchasing its own wire drawing machines. Id. at 27.

MCN claimed that the facts here we re not truly distinguishable from SSWR from Korea , which Commerce purported to rely on, and therefore claims that Commerce acted contrary to its own established practice without providing a rational explanation. Id. at 28-29. Looking at the [[ ]] between Precision and [[ ]], MCN also points to their [[

]]. Id. at 29-30. MCN argues that analogous facts haveConsolidated Court No. 12-00133 Page 16

undergirded findings of affiliati on in past investigations. Id. at 30-31. MCN also claims that Commerce looked to the wrong time period in ba sing its affiliation decision on the potential future relationship between Precision and Millennium, rather than their relationship during the POI. Id. at 31-33. 2. Precision Precision supports the Commerce determin ation of non-affiliation on the grounds articulated by Commerce in the Final Results

. See generally Def.-Int. Precision’s Opp’n to Pl.’s Mot. for J. on the Agency R. (“Precision Opp. ”) at 11-34, ECF No. 66. Specifically addressing MCN’s argument regarding Precision’s [[ ]], Precision argues that MCN’s position would convert any [[ ]] into entities involved in a control relationship, which would be an unreasonable application of the statute. Id. at 23. Regarding the former General Manager of [[ ]] who later became Precision’s General Manager, Precision points out that his [[

]]. Id. at 26. Precision also rejects MCN’s arguments th at it has a close supplier relationship with Millennium for the reasons articulated by Commerce in the Final Results

. Id. at 31-34. 3. Commerce Commerce reasserts that it properly considered and evaluated the record evidence in the Final Results , reiterating its reasoning before the Court. See generally Def.’s Opp’n to Pls.’ Mots. for J. Upon the Agency R. ( “Commerce Opp. ”) at 8-21, ECF No. 63. Commerce pointsConsolidated Court No. 12-00133 Page 17

out that even if MCN could demonstrate that Precision and Millennium shared employees as alleged, MCN “fails to explain how that would result in control.” Id. at 11. Similarly, Commerce notes the facts confirmed at verification regarding the companies’ [[ ]] and argues that “although the parties’ cooperation is shown, the record does not suggest that one party is [in] the position to ‘control’ the other party” on this basis. Id. at 13. Addressing the [[ ]] between Precision and [[ ]], Commerce notes that there are no provisions permitting [[ ]] to “impact decisions concerning the production, pricing, or cost of the subject merchandise.” Id. at 14. Rather, the [[ ]] are “mutually beneficialand do not advance one party’s interests over the other party’s interests.” Id. Commerce argues that the mutuality of the relationship is shown by the fact that Precision was able to [[ ]] and [[ ]]. Id . Commerce also noted that the [[ ]], in particular because there is an [[ ]]. Id. at 15. Crucial to Commerce’s analysis is this [[ ]], which “demonstrates” to Commerce that “the relationship is not irreplaceable,” as would be the case with an affiliation relationship involving control. Id. Also crucial, Commerce contends , is the lack of the kind of [[ ]] that might indicate the coordinati on of internal decision-making and impact production, pricing, and cost choices. Id. at 16. Commerce points out that, even though the companies shared, [[ ]], phone and fax services, Precision doesn’t promote anyone but itself on its website. Id. at 17. Commerce insists that there is no closeConsolidated Court No. 12-00133 Page 18

supplier relationship, as shown by the fact that Precision [[ ]] during the POI, may obtain that supply elsewhere, and has in fact [[ ]] during the POI. Id. at 19-20. B . Commerce’s Affiliation Determination Is Affirmed The Court affirms Commerce as to a lack of affiliation because Commerce applied its statute and regulations correctly, and based its decision on a reasonable assessment of the substantial evidence on the record. The Court is required to uphold the Final Results unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Substantial evidence means “such relevant evidence as a reasonable mind might accept as ade quate to support a conclusion.” Crawfish Processors Alliance v. United States , 483 F.3d 1358, 1361 (Fed. Cir. 2007) (internal citation omitted). Where two decision makers might reach different conclusions from the same evidence, Commerce may choose one reasonable conclusion and its decision will still be supported by substantial evidence. See Consolo v. Fed. Maritime Comm’n , 383 U.S. 607, 620 (1966). The Court will uphold Commerce where the weight of the record in its entirety tends to support the determination, even where Commerce faces ev idence that detracts from its conclusion. See Atlantic Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984). The Court will not replace Commerce’s decision regarding the evidence with its own judgment where Commerce made a reasonable call on how to settle questions raised by the record.Consolidated Court No. 12-00133 Page 19

It is clear that Commerce engaged in the sort of searching evaluation of the record which is to remain undisturbed under the standard of review. The partie s do not dispute the nature of the record evidence, but rather the conclusions to be drawn from it. Commerce acted reasonably in coming to a negative determination on the affiliation issue, since even those pieces of record evidence suggestive of overlap between the two companies did not demonstrate that Millennium was able to control Precision’s decisi ons regarding the subject merchandise. Commerce did not dodge or ignore evidence regarding the relationship between the companies, but rather closely examined it and reached conclusions that it was able to justify with specific analyses. To take one example, Commerce examined the details of the alleged sharing of employees and chose to base its de termination on the quantum of that evidence. Certainly any reasonable mind could find that the LinkedIn profile—the sole piece of evidence that suggests an employee [[ ]]— was simply too tenuous and of questionable authentic ity to form the basis for a finding that the companies shared employees. Furthermore, as Commerce points out, even assuming that the LinkedIn profile should be preferred over the contrary record evidence, a hypothetical finding that Millennium and Precision [[ ]] would not lead to a finding that Millennium controlled Precision. It is especially worth noting that Co mmerce grounded its decision on its direct observations at verification, which undercut many aspect of MCN’s allegations regarding the [[ ]] and provided robust evidence thatPrecision was not controlled by Millennium in this regard. The Court also finds that Commerce closely considered all of theConsolidated Court No. 12-00133 Page 20

evidence regarding the nature of the [[ ]] between [[ ]] and Precision, [[ ]], and comprehensively interpreted the cited evidence in a reasonable manner in the context of all of the record evidence. It would be impossible for the Court to say that no reasonable fact-finde r could have concluded as Commerce did on the record before it, and the Court is therefore obl iged to affirm Commerce’s finding that Precision and Millennium were not affiliated. III. Targeted Dumping Where a petition alleges that respondents to anantidumping investigation have engaged in targeted dumping, Commerce analyzes respondent sales to determine whether, in accordance with the statute, there is a pattern of export (or constructed export) prices for comparable merchandise showing significant differences ba sed on the purchaser, region, or time period of the sale. I&D Memo at 4. (The existence of such a pattern is a threshold requirement for employing the average-to-transaction price comparison that constitutes the targeted dumping remedy. 19 U.S.C. § 1677f-1(d)(1)(B).) In order to determine whether there is a price pattern showing significant differences along one of the targeting poles, Commerce employs a two-part test known as the Nails test. 4
See I&D Memo at 4; see also Commerce Opp. at 37. First, Commerce seeks a price pattern. It determines how many of the allegedly targeted sale s, by volume, were made at a price more than

4 The Nails test originated with Certain Steel Nails from th e People’s Republic of China , 73 Fed. Reg. 33,977 (Dep’t of Commerce June 16, 2008) (final determination of sales at less than fair value), which was upheld by the C ourt of International Trade in Mid Continent Nail v. United States , 34 CIT ___, 712 F. Supp. 2d 1370 (2010).Consolidated Court No. 12-00133 Page 21

one standard deviation below the weighted-average price of all sales. Commerce Opp. at 37. If the results include more than 33% of all of the allegedly targeted sales (to the allegedly targeted customer, region, or in the allegedly targeted time period), then a price pattern has been found and Commerce proceeds to the next step. Id. at 37-38. In the second step of the Nails test, Commerce determines whether the price pattern exhibits significant differences by looking for a price gap. Id. at 38. To do this, Commerce first deter mines the volume-weighted price gap of non-targeted sales; then the weighted average price of sales to the alleged target is compared to the next higher weighted average price of non-targeted sales. Commerce determines the volume of sales for which the difference between these two weighted average sales prices exceeds the volume-weighted price gap of non-ta rgeted sales, and if the amount is over five percent of the total volume of sales to the alleged target, then Commerce finds that the price pattern exhibits significant differences. Id. Where both prongs of the Nails test are met, Commerce then applies the average-to-transaction price comparison methodol ogy to all U.S. sales when determining the respondent’s dumping margin. Id. Employing this test here, Commerce deter mined that both Dubai Wire and Precision had patterns of export prices for comparable merchandise that varied significantly among customers, regions, and time periods. Final Results , 77 Fed. Reg. at 17,031; Dubai Wire Targeted Dumping Memo , C.R. 105, at 4-5; Precision Targeted Dumping Memo , C.R. 110, at 4-5. Although Commerce had found, in the Preliminary Results , that the average-to-average methodology accounted for the targeting, Commerce changed this approach in the Final Results , deciding that the average-to-average method was in sufficient to account for the price differencesConsolidated Court No. 12-00133 Page 22

stemming from the targeted sales. Final Results , 77 Fed. Reg. at 17,031. Commerce therefore applied the average-to-transaction method. Id. Commerce did not discuss whether the transaction-to-transaction method might account for the price differences. Id. In applying the average-to-transaction method, Commerce applied it to all of the U.S. sales of Precision and Dubai Wire pursuant to the Withdrawal Notice , rather than limiting it to targeted sales as mandated by the limiting regulation. Id. The relevant comments of the respondents, each of whom objected to Commerce’s targeted dumping analysis on multip le grounds, will be described below. A. Contentions of the Parties 1. Precision Precision argues that Commerce’s determinati on that it engaged in targeted dumping is unlawful and not supported by the record. Precisi on identifies as an error that “Commerce failed to examine and take into account whether, and to what extent, any of Precision’s sales identified by Commerce as ‘targeted’ were fairly traded sales (i.e., not dumped).” Brief of Pl. Precision Fasteners, LLC in Supp. of Pl.’s Mot. for J. upon the Agency R. (“ Precision Mem. ”) at 7, ECF No. 33. In fact, Precision contends that most of its sales identified as targeted by Commerce were “fairly traded.” Id. Precision’s contention is that the statute does not permit Commerce to base a targeted dumping finding on a pattern of price differences in non-dumped sales. Id. at 7- 8. Precision also argues that the Nails test is flawed and illogical, leading to results inconsistent with the record evidence. Id. at 8. In this regard, Precision notes that the Nails testConsolidated Court No. 12-00133 Page 23

does not take into cons ideration that only an “insignifica nt number of transactions” were identified as targeted by customer and regi on; that Commerce relied on arbitrary geographic divisions for its region finding, rather than usin g previously acknowledged official regions; and that Commerce ignored evidence of significant fluctuations in materials costs in making its finding of targeting by time period. Id. Precision also claims that, even assuming the targeting analysis was legal, Commerce cannot justify application of average-to-transacti on comparisons to all of Precision’s U.S. sales when Commerce only found evidence of targeting for less than one percent. Id. Precision argues that such action was not only unreasonable but also violated the requirement in 19 C.F.R. § 351.414(f) that the average-to-transaction method be applied only to thos e sales identified as targeted. Id. at 9. For this argument, Precision contends that the Withdrawal Notice was “ineffective and contrary to law because it occurred outside the basic procedural framework required by Congress under the Administrative Procedure Act.” Id. As a result, Precision insists that Commerce should be required to apply 19 C.F.R. § 351.414(f). Precision also attacks Commerce’s use of “zeroing” in calculating the targeted dumping remedy. Id. Zeroing is a calculation technique in which Commerce fails to treat fairly-traded sales as offsetting dumped sales, calculating them as if they were made at a zero dumping margin rather than a negative dumping margin. Precision argues that the use of zeroing in the targeted dumping calculation is inconsistent with statute and binding court precedent. Id.Consolidated Court No. 12-00133 Page 24

2. Dubai Wire Dubai Wire attacks Commerce’s targeted dum ping analysis on similar grounds. Dubai Wire, like Precision, argues that Commerce acted c ontrary to the antidumping statute when it based its targeting finding (of a pattern of prices that differed significantly) on an analysis of sales at prices above fair value. Mem. of Law in Supp. of Dubai Wire’s Rule 56.2 Mot. for J. upon the Agency R. (“ Dubai Wire Mem. ”) at 9-11, ECF No. 37. Dubai Wire contends that Co mmerce acts contrary to statute, court precedent, and administrative practice in its “unreasonably rigid” reliance on a “strict mathematical formula” to conduct its targeted dumping analysis in a manner that, in Commerce’s own words, proceeds “without determining ‘why’ an exporter’s pric ing behavior may differ significantly.” Id. at 11- 12 (quoting I&D Memo at 6). In doing so, Dubai Wire argues, Commerce has ignored “the established legal principle of de minimis ,” which “operates to ensure that the underlying purpose of the statutory provision is carried out.” Id. at 13 ( quoting Alcan Aluminum Corp. v. United States , 165 F.3d 898, 902, 905 (Fed. Cir. 1999)). Dubai Wire echoes Precision on this point, noting that only extremely small percentages of its U.S. sales support Commerce’s findings of customer and region targeting. Id. at 13-14. Regarding the finding that Dubai Wire targeted its sales by customer, Dubai Wire claims that Commerce improperly rejected evidence regarding these sales which established that they varied from the ordinary course of trade and could not reasonably be compared to ordinary U.S. sales. Id. at 14-16. Dubai Wire also claims that Co mmerce acted contrary to the evidence by failing to properly consider the sharp increase in raw material prices when it analyzed DubaiConsolidated Court No. 12-00133 Page 25

Wire’s U.S. sales for targeting by time period. Id. at 16-20. Regarding the finding of targeting by region, Dubai Wire claims that Commerce base d its determination on a small error in freight charges which was documented in the record and should have resulted in an adjustment. Id. at 20-21. Like Precision, Dubai Wire also contends th at Commerce acted contrary to law and the record evidence when it applied the average-to-tra nsaction method to all Dubai Wire sales, rather than only the sales identified as targeted. Id. at 21-22. Dubai Wire argues that Commerce’s interpretation of the antidumping statute to permit such broad application of the targeted dumping methodology is flawed because the results are “unnecessarily punitive” and “do[] not further the statute’s objective.” Id. at 22. Dubai Wire also claimsthat Commerce has departed from “longstanding practice” without ar ticulating any suita ble rationale. Id. at 23. Dubai Wire, like Precision, argues that the Withdrawal Notice violated the APA by revoking 19 C.F.R. § 351.414(f) without notice and comment, and th at the APA’s “good cause” exception was inapplicable. Id. at 24-26. 3. Commerce Commerce argues that it rightly rejected Precision and Dubai Wire’s requests that Commerce “establish a de minimis standard,” by which it would “an alyze the number of targeted sales as a percentage of total U.S. sales.” De f.’s Opp’n to Pls.’ Mots. for J. upon the Agency R. (“ U.S. Opp. ”) at 38, ECF No. 63. Commerce defends its current practice on the basis of its interpretation of the language in 19 U.S.C. § 1677f-1(d)(1)(B)(i) authorizing use of the averageto-transaction method when “there is a pattern of export prices . . . for comparable merchandiseConsolidated Court No. 12-00133 Page 26

that differ significantly among purchasers, regions, or periods of time.” According to Commerce, the statute “does not establish how this pattern [of export prices] should be measured with respect to the prevalence of underlying sales in relation to all sales.” Id. at 39. Commerce contends that it implements its reasonable interpretation of the statute when it measures targeted sales by volume rather than by number. Id. Commerce also claims that its interpretation in this regard was upheld in Mid Continent Nail Corp. , 712 F. Supp. 2d 1370. Id. In any case, Commerce argues, record evidence indicates that the percentage of the U.S. sales of Precision and Dubai Wire that were found to be targeted exceeds a de minimis level. Id. at 40. Commerce also counters the argument that it erred in applying the average-to-transaction comparison method to all U.S. sale s upon a finding of targeting. Id. at 40-41. Commerce first points out that the statute itsel f is silent as to how broadly Commerce should apply the method once a targeting finding is made, and argues from this that “nothing in the statute restricts” Commerce in this regard. Id. at 40. Commerce argues that applying the targeted dumping methodology to all sales is “themost effective way to unmask targeted dumping, and to implement the statute’s goal,” since an exporter can use “profitable sales” to gain an offset and hide sales dumped in a targeted fashion. Id. at 40-41. B. Commerce Must Apply the Targeted Dumping Regulation The Court finds that Commerce violated its obligation to provide notice and opportunity for comment prior to the rescission of the target ed dumping regulation. As a consequence, the Court finds that the Withdrawal Notice is invalid. The Court will therefore remand the case back to Commerce for redetermination. On remand, Commerce must apply the targeted dumpingConsolidated Court No. 12-00133 Page 27

regulation, 19 C.F.R. § 351.414(f) (1997), mandating that Commerce limit the scope of the average-to-transaction method to those sales Commerce identifies as targeted sales. Pursuant to the Administrative Procedure Ac t (“APA”), “[g]eneral notice of proposed rule making shall be published in the Federal Register” and shall include “either the terms or substance of the proposed rule.” 5 U.S.C. § 553(b) . After publishing the notice, the agency must “give interested persons an opportunity to participate in the rule making” by submitting

comments. Id. § 553(c). Notice of a new rule must be published “not less than 30 days before its effective date” unless “otherwise provided by the agency for good cause found and published with the rule.” Id. § 553(d). This good cause exception to the notice requirement applies if Commerce finds that notice is “impracticable, unn ecessary, or contrary to the public interest” and incorporates that finding and an explanati on into the new rule. 5 U.S.C. § 553(b)(3)(B). The Withdrawal Notice is of the kind of “rule making” covered by the notice requirement because “new rules that work substantive change s in prior regulations are subject to the APA’s procedures.” Sprint Corp. v. FCC, 315 F.3d 369, 374 (D.C. Cir. 2003). New agency requirements “that will affect subsequent agency acts and have a future effect on a party before the agency” trigger the need for notice. Id. at 373. This notice requirement “does not simply erect arbitrary hoops through which federal agenci es must jump without reason,” but “improves the quality of agency rulemaking by exposing re gulations to diverse public comment,” “ensures fairness to affected parties,” and “provides a well-developed record that enhances the quality of judicial review.” Id. (internal citation and quotations omitted).Consolidated Court No. 12-00133 Page 28

Commerce insists that it satisfied its APA notice and comment obligations when it published two notices in the Federal Register seeking comment on its implementation of the targeted dumping provisi ons of the statute. U.S. Opp. at 50, citing Proposed Methodology for Identifying and Analyzing Targeted Du mping in Antidumping Investigations , 72 Fed. Reg. 60,651 (Dep’t of Commerce Oct. 25, 2007) (request for comment) and Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations , 73 Fed. Reg. 26,371 (Dep’t of Commerce May 9, 2008) (request for comment). Commerce argues that it need not publish the precise content of the rule it u ltimately adopts in order for the notice to be effective, but may instead take action that allows the public “the opportunity to comment meaningfully consistent with the statute.” Id. at 53. Commerce also insists that the APA’s good cause exception to the notice and comment requirement was met here. Id. at 54. Commerce states that it may have imposed on itself, with the limiting regulation, too much restriction as to how to conduct a targeted dumping investigation, with the effect of “inadvertentl y denying relief to domestic industries suffering material injury from unfairly traded imports.” Id. at 55 (internal quotations and citations omitted). Commerce identified th e need to provide speedy relief under the statute to U.S. producers as justifying a public interest excep tion to the APA notice and comment requirements here. Id. at 55-56. Finally Commerce argues that even if the Withdrawal Notice was improperly issued, the impropriety did not harm Precision and Dubai Wire because the Withdrawal Notice placed no new requirements on them. Id. at 57-58.Consolidated Court No. 12-00133 Page 29

The Court finds that the two requests for comment did not satisfy the APA notice and comment requirement. An APA notice must “be su fficiently descriptive to provide interested parties with a fair opportunity to comment and to participate in the rule making.” Gold East Paper (Jiansu) Co., Ltd. v. United States , 37 CIT ___, 918 F. Supp. 2d 1317, 1325 (2013) (“ Gold East Paper”) (internal quotations and citations omitted). As Gold East Paper noted, the comment requests and the Withdrawal Notice make no references to each other. Id. at 1326. It is not obvious to an interested observer that c onnected rule making is intended, since the comment requests “discuss the methodologies th at Commerce will use to determine whether targeted dumping has occurred,” but the limiting regulation “restricts Commerce’s ability to impose the targeting remedy across all sales.” Id. The Court furthermore finds it improper here to apply the APA’s good cause exception to providing notice and comment prior to rule making. “The good cause exception is to be narrowly construed and only reluctantly countenanced.” Id. (quoting New Jersey v. EPA , 626 F.2d 1038, 1045 (D.C. Cir. 1980) (internal quotati ons omitted). The limiting regulation was adopted only after prolonged agency considerati on that included a hearing and the submission of extensive pre and post hearing comments. See 62 Fed. Reg. at 27,296. Commerce’s argument for a good cause exception here boils down to the notion that the limiting regulation presented an urgent danger of harm to dom estic industries so compelling as to permit devi ation from normal notice and comment requirements. But there was no pressing urgency of a type that does not always exist in the trade context; as pointed out in Gold East Paper , this justification “could apply to almost any rule promulgated by the agency.” 918 F. Supp. 2d at 1327 (emphasis inConsolidated Court No. 12-00133 Page 30

original). To permit the good cause exception herewould be to allow the exception to swallow the rule and effectively nullify the APA’s limitation on summary agency action. Commerce states that APA notice and comment violations are generally subject to the harmless error rule, i.e., a violation by the agency will only result in invalidating the agency’s action where a party has suffered prejudice from the violation. See 5 U.S.C. § 706 (stating that “due account shall be taken of the rule of prejudicial error” by courts reviewing agency action). Commerce contends that the respondents sufferedno harm because “the regulation withdrawal did not impose any new obligations on them.” U.S. Opp. at 57. Assuming without deciding that the harmless error rule applies in this context, the Court finds that the harmless error rule is not so protective of agency missteps. Because the harmless error rule is more susceptible to being abused in the administrative rule making context than in the civil or criminal adjudication process, courts must accordingly “exercise great caution in applying” it in rule making cases. Paulsen v. Daniels , 413 F.3d 999, 1006 (9th Cir. 2005) (inter nal citations omitted). This potential for abuse exists because an administrativ e agency has such great discretion when rule making that it need not “adopt a rule that confor ms in any way to the comments presented to it,” and may even go so far as to “adopt a rule that all commentators think is stupid or unnecessary,” so long as the agency simply explains its reasons. Id. (internal citations omitted). Consequently, a court should “focus on the process as well as th e result,” an exhortation that has led one court to find a notice and comment violation harmless “only where the agency’s mistake clearly had no bearing on the procedure used or the substance of the decision reached.” Id. (internal quotations and citations omitted). Here, the process used in determining whether Precision andConsolidated Court No. 12-00133 Page 31

Dubai Wire engaged in remediable sales at less than fair value, and the margin to be assessed to remedy alleged dumping, were both central issues of the Final Results that were substantially affected by Commerce’s failure to apply the limiting regulation. The Court therefore rejects Commerce’s argument that the notice and comment defect in the Withdrawal Notice was a harmless error. When, in the course of rule making, anagency violates the notice and comment requirements of the APA and the violation is not harmless, the new rule is invalid, resulting in reinstatement of the prior rule. Id. at 1008. Similarly, a regulation withdrawn in violation of the APA notice requirement will be enforced. Citibank, Fed. Savings Bank v. FDIC, 836 F. Supp. 3, 7 (D.D.C. 1993). The Court therefore rules that Commerce’s Withdrawal Notice was invalid and, as a consequence, the C ourt will remand the ca se to Commerce. On remand, Commerce must redetermine the respondent s’ dumping margins by applyi ng the limiting regulation of 19 C.F.R. § 351.414. C. Ruling on Other Target ed Dumping Issues WillBe Held in Abeyance The Court has carefully considered the numerous other issues raised by the parties regarding the manner in which Commerce analyzed and decided the targeted dumping allegations in this investigation. Given that the Court is remanding the case to Commerce to apply the limiting regulation, Commerce will again face in its redetermination the statutory question, under 19 U.S.C. § 1677f-1(d)(1), of wh ether any pattern of prices that differ significantly can be accounted for using either the average-to-average or the transaction-to-Consolidated Court No. 12-00133 Page 32

transaction 5 methodology. Commerce may decide that it cannot or should not apply the averageto-transaction methodology at all on redetermination. It would thus be premature for the Court to rule on the other aspects of the targeted dumping methodology challenged here, since the basis for those rulings may evaporate after the remand. When Commerce files its remand redetermination, the parties will have a chance to file comments on the results. At that time, the parties may challenge any aspects of Commerce’s targeted dumping methodology, and the Court wi ll rule on such issues, as appropriate, after the redetermination and comments of the parties have been submitted for consideration. IV. Surrogate Profit Statements Normal value (“NV”) is determined by Commerce based on the price at which the foreign like product is sold in the comparison market , as long as there are sufficient sales of an ordinary type to serve as a proper comparison. 19 U.S.C. § 1677b(a)(1). In an investigation such as the one underlying this case, however, where there is no viable comparison market for subject merchandise in the UAE, Commerce inst ead bases NV on CV. 19 U.S.C § 1677b(a)(4). Commerce is required to determine CV based on, inter alia , the actual expense and profit figures incurred by a company; if those amounts are un available, the statute permits Commerce, as relevant here, to determine CVbased on “any other . . . reasonable method.” 19 U.S.C. §

5 The Court notes that Commerce does not appe ar to have addressed whether or not the transaction-to-transaction method would have been able to account for the targeted dumping found here. The statute and the framework of j udicial review in su ch cases require that Commerce state its rationale , which Commerce should do in the redetermination.Consolidated Court No. 12-00133 Page 33

1677b(e)(2)(B)(iii). Here, Commerce chose to rely on a surrogate financial statement for the profit portion of CV. U.S. Opp. at 23. When faced with the need to obtain a surrogate financial statement to establish CV, Commerce applies a set of surrogatefinancial criteria to choose between statements available in the record. Commerce weighs “several factors, including: (1) similarity of the potential surrogate company’s business operations and produc ts to the respondent; (2) the extent to which the financial data of the surrogate company reflects sales in the United States as well as the home market; (3) the contemporaneity of the surrogate data to the POR; and, (4) the similarity of the customer base.” I&D Memo at 27 (citing prior administrative decisions). In applying this test, Commerce consistently takes the position that “[t]he greater the similarity in business operations and products, the more likely that there is a greater correlation in the profit experience of the companies.” Id. Here, there were six financial statements on the record from which Commerce could seek an appropriate surrogate: BILDCO; AHI; Global Fasteners Limited (“GFL”) (a Dubai Wire affiliate); Al Jazeera Steel Products Co. SAOG (“Al Jazeera”); National Metal Manfacturing and Casting’s Companies (“NMN”); and Conare s Metal Supply Limited (“Conares”). See U.S. Opp. at 23. In the Preliminary Results , Commerce chose to use AHI’s statement as a surrogate for profit in the CV calculation, finding that AHI “pro duces products in the samegeneral category of merchandise as nails.” 76 Fed. Reg. at 68,134. For the Final Results , Commerce chose instead to use BILDCO’s financial statements as a surrogate. I&D Memo at 29. Commerce made this change because “BILDCO’s business operations and products appear to be more similar” to theConsolidated Court No. 12-00133 Page 34

respondents’, since it “is a trader and manufacturer of building materials,” “is a steel processor,” “operates within the same UAE construction industry,” and even has the same “customer base, the construction industry” as respondents. Id. Commerce noted that “the principal activities of AHI are ship repair, shipbuilding and fabricati on of relatively sophisticated products such as platforms, barges, and pontoons,” and its “cust omer base includes the marine, offshore, and engineering industries.” Id. Commerce therefore found that BILDCO’s profit statement was “a more reasonable option” than AHI, which operated and served a market “substantially divergent from” respondents. Id. Dubai Wire argued that Commerce should not use AHI’s information due to the divergent industry in which AHI functioned, but sought to have Commerce use the profit statement of its affiliate GFL instead. Id. at 21-22. Precision argued that use of the AHI statement was “unlawful and unreasonable” sinc e, as a shipbuilding company, AHI produced materials completely unlike steel nails. Id. at 22-23. Precision instead sought to have Commerce calculate CV profit by “using Precision’s profit on the sales of drawn wire in the home market,” arguing that drawn wire and nails are generally similar. Id. at 23. Precision alternatively argued for use of “one or a combinati on of several other producers of merchandise in the same general category as the subject steel nails,” includingGFL, BILDCO, Conares, Al Jazeera, NMN. Id. MCN argues that AHI remained the best source of surrogate profit values. Id. at 24. MCN stated that Commerce must reject GFL data as unreasonable and inaccurate; must reject Precision’s drawn wire sales due to insufficient quantities; and must reject the other potential contenders as less reliable than AHI. Id. at 24-25.Consolidated Court No. 12-00133 Page 35

Commerce noted that, after issuing the Preliminary Results , the parties placed additional financial statements on the record for Commer ce to consider under the test given above. Id. at 25. Commerce rejected Al Jazeera and NMN because they were not UAE companies and Commerce sought home market profit experience to the extent possible. Id. at 27. Regarding GFL, Commerce determined that GFL’s 2010 profit calculation for sales of screws and nails was not reliable since GFL purchased its nails from a ffiliate Dubai Wire rather than producing them. Id. GFL also had not provided sufficient evidence about the cost difference between models of screws, and did not differentiate sufficiently between the costs of screw sales in its domestic versus export markets. Id. As a result, Commerce found that GFL’s profit statements were unreliable and chose not to use them in calculating CV. Id. at 28. In response to the backup argument by Dubai Wire that Commerce should then simply use GFL’s company-wide 2009 or 2010 financial statements, Commerce noted that thos e statements primarily reflected export sales rather than home market sales and were equally unreliable as to CV for that reason. Id. Regarding Conares, Commerce’s practice is to use third-party, non-proprietary, publicly available financial statements for CV profit calculations, but Conare s’ statements were proprietary. Id. at 29. Ranged statements from Conares th at were non-proprietary were rejected as “imprecise” and not matching “the segmented op erations that are reported in the proprietary version.” Id. Commerce also considered whether BILDCO or AHI provided a better surrogate. Neither BILDCO nor AHI produced subject merchandise, so Commerce examined which company operated most like D ubai Wire and Precision. Id. Commerce found that BILDCO wasConsolidated Court No. 12-00133 Page 36

“a trader and manufacturer of building materials” and “a steel processor . . . [with] a steel processing facility to cut and bend steel” that “operates within the same UAE construction industry as Dubai Wire and Precision.” Id. BILDCO also had “the same” customer base as Dubai Wire and Precision. Id. In contrast, Commerce noted that AHI’s principal activities were “ship repair, shipbuilding and fabrication of relatively sophisticated products such as platforms, barges, and pontoons,” and AHI had as customer s “the marine, offshore, and engineering industries.” Id. Considering all of these factors, Commerce determined that BILDCO’s “business operations and products appear to be more simila r to those of Dubai Wire and Precision” than the other options. Id. A. Contentions of the Parties 1. MCN MCN argues that Commerce’s decision to rely on BILDCO’s financial statement as a profit surrogate was unsupported by ev idence and contrary to law. MCN Mem. at 34-39. The main thrust of MCN’s argument is that BILD CO is more a trading company than a producer; while BILDCO appears to cut a nd bend rebar, MCN contends th at BILDCO does not fabricate the rebar or any other steel product. Id. at 35-36. MCN contrasts this with AHI and notes that Commerce found in the Preliminary Results that AHI made products in the same category as respondents. Id. at 36. MCN cites record evidence that AHI is, predominantly, a steel fabricator. Id. at 37. MCN’s view is that it was “manifes tly unreasonable” for Commerce to switch its reliance from the AHI statement to the BILDCO statement. Id. at 37-38. MCN also claims that Commerce did not even address the low leve l of BILDCO’s inventory “composed of rawConsolidated Court No. 12-00133 Page 37

materials,” or operating and staff cost ratios, submitted by MCN in the Final Results , rendering them arbitrary and contrary to law. Id. at 38-39. 2. Dubai Wire Dubai Wire argues that Commerce should have used the GFL financial statements. Dubai Wire Mem. at 29-45. Dubai Wire argues that it a nd GFL “are sister companies” far more similar than Dubai Wire and BILDCO. Id. at 32-33. GFL’s home market and export sales were all before Commerce, while BILDCO’s U.S. sale s were not and its home market profit could not be calculated. Id. at 33. Alternatively, Dubai Wire cont ends that Commerce should have used GFL’s audited financial statements of profit for 2009 or 2010. Id. at 34-35. Dubai Wire also attacks Commerce’s determination that the GFL “profit calculation results in an unreliable profit figure,” which was the rationale Co mmerce used for not relying on it. Id. at 35-43. Dubai Wire contends that Commerce imprope rly rejects Dubai Wire’s request that CV profit be based on GFL’s worldwide profit from its 2010 or 2009 financial statement. Id. at 43-45. Finally, Dubai Wire claims that Commerce abused its discretion when it rejected the financial statement of Conares. Id. at 45-46. Dubai Wire placed C onares’ financial statement on the record on November 3, 2011 as confidential info rmation, and placed a public profit and loss statement summary on the record on December 22, 2011. Id. at 45. On February 21, 2012, Dubai Wire submitted Conares’ financial statement as a public document, but Commerce rejected it as “new factual information” submitted after the deadline for new factual evidence had passed. Id. at 45-46. Dubai Wire claims that the appli cation of the deadline was contrary to law since the document itself was not new, only its designation as confidential or public. Id. at 46.Consolidated Court No. 12-00133 Page 38

B. Commerce’s Choice of BILDCO for Su rrogate Profit Statements Is Affirmed In reviewing Commerce’s decision, the Court is mindful that the standard of review calls for the agency’s decision to be upheld unless “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U. S.C. § 1516a(b)(1)(B)(i). The Court finds that Commerce based its decision to rely on the BI LDCO financial statements on “such relevant evidence as a reasonable mind would accept as adequate” to support its conclusion. See NSK Corp. , 716 F.3d at 1364 (internal citation and quotation omitted). Commerce, faced with the need to identify a reliable surrogate financial statement from among those submitted into the record, articulated a sensible rati onale for its choice that drew on and considered the evidence in the record. Because that decision was based on a reasonable evaluation of the evidence, the Court affirms this aspect of the Final Results. Dubai Wire argues in the alternative that Commerce should have used the financial statement of Conares. Dubai Wire had placed Co nares’ financial statement on the record as business proprietary information, and for that reason, Commerce declined to use it. I&D Memo at 29 (“it is our practice to use non-proprietary, publicly available financial statements when presented with third-party financial statements”). After the deadline for the submission of new factual evidence had expired, Dubai Wire attempted to place Conares’ financial statement on the record as a public document, but Commerce rejected it as untimely. Dubai Wire argues that Commerce’s rejection was contrary to law becaus e the data was not “new” but was simply the same data previously availabl e to the parties under an Adminis trative Protection Order, now made available to the public. Dubai Wire Mem. at 46. Dubai Wire cites no authority for itsConsolidated Court No. 12-00133 Page 39

argument. Commerce argues that the pubic version of the Conares statement was “‘new’ factual information in the sense that it had been designat ed as proprietary and analyzed as a proprietary document by Commerce and by the parties.” U.S. Opp. at 33. The Court is unaware of any authority indicating whether a public document, submitted to replace a confidential document after the evidentiary submission period has expired, is new evidence for purposes of the deadline. However, the Court notes that the applicable deadline is contained in a Commerce regulation. See 19 C.F.R. § 351.301. This specific situation is not addressed with particular ity in the regulation. In the absence of contravening authority, the Court must defer to Commerce on the interpretation of its own regulation, so long as that interpretation is reasonable. Here, Commerce has expressed to the Court the interpretation that its regulation does not permit the submission of a public version of a confidential document into the record outside the ordinary deadline fo r the submission of new factual evidence. U.S. Opp. at 33. The Court finds that Commerce has asserted a reasonable interpretation of its deadline regulation and, pursuant to Chevron , the Court defers to that interpretation. Therefore, the Court affirms Commerce’s decision to reject the public submission of the Conares financial statement. V. Imputed Interest Rate Pursuant to 19 U.S.C. § 1677b(e)(2), Commerce is to account for payments for “general and administrative expenses” when calculating a party’s CV. In doing so for Dubai Wire, Commerce examined interest payments that Dubai Wire made on a loan from an affiliate and disregarded them pursuant to 19 U.S.C. § 1677b(f)(2) (permitting Commerce to disregard transaction between affiliated pa rties where the transaction amount“does not fairly reflect” theConsolidated Court No. 12-00133 Page 40

usual amount “in the market under considerati on”). Where Commerce applies the transactionsdisregarded rule, the statute instructs Commerce toreplace the disregarded data by using “the information available as to whatthe amount would have been if the transaction had occurred between persons who are not affiliated.” Id. The statute directs Commerce to replace the actual interest payments made by Dubai Wire with surrogate data based on whatever information was in the record as to what Dubai Wire would havepaid in interest if it obtained the loan from a non-affiliate, and to use the surrogateinterest rate in the CV calculation as an element of Dubai Wire’s general and administrative expenses. Commerce considered several sources of information as potential bases of an imputed rate for Dubai Wire’s long-term loan. MCN urged Commerce to impute a 2010 interest rate on the affiliated loan based on a weighted average of the rates of several unaffiliated bank loans held by Dubai Wire in 2010. I&D Memo at 31. MCN also argued that Commerce should increase the amount for accrued interest from 200 8 and 2009 on the principal of the loan, based on MCN’s view that the interest charged in those years was below market rate. Id. Dubai Wire contended that Commerce should base the imput ed rate on a calculation from its financial statements, dividing interest expens e by average 2010 loan balance. Id. If, however, Commerce chose to use a rate based on market-rate loans from 2010, Dubai Wire asked Commerce to include an unaffiliated supplier’s loan. Id. Dubai Wire also argued that Commerce’s rate from the preliminary results was excessive because it was based on short-term unaffiliated loans rather than long-term unaffiliated loans. Id. Finally, Dubai Wire contended that the 2008 and 2009 accrued interest was at market rate and should not be adjusted upward. Id at 31-32.Consolidated Court No. 12-00133 Page 41

Commerce agreed with Dubai Wire that its 2008 and 2009 accrued interest was at market rate, due to a 2004 restructuring effective through the end of 2009, and accordingly did not upwardly adjust it. Id. at 32. In setting an imputed market rate for the POI, Commerce constructed a rate representing the midpoint of Dubai Wire’s se veral unaffiliated short-term 2010 loans. Id. at 33. Commerce chose to rely on these short-term loans because it found them to be the best information in the record given that they were actual rates and given that Dubai Wire did not enter into any unaffiliated l ong-term loans in the POI. Id. Commerce also preferred these loans over a calculation from Dubai Wire’s fina ncial statements based on the same finding. Id. Commerce did not include Dubai Wi re’s unaffiliated supplier loan in its calculation because it found that such loans “have considerations other than simply commercial lending” that can result in “favorable rates.” Id. A. Positions of Parties Regarding Interest Rate Imputed to Dubai Wire 1. Dubai Wire Dubai Wire objects to the surrogate interest rate that Commerce chose to impute to its affiliate loan. Dubai Wire claims that the record contained evidence of long-term loans it and its affiliate obtained at lower rates in 2004 and 2009, respectively, which Commerce should have relied upon in accordance with its ordinary practice. Dubai Wire Mem. at 27-28. Dubai Wire also contends that Commerce ignored the record evidence when treating the affiliate loan as having been essentially a new loan for 2010 by vi rtue of its renegotiation, and in having stated that Dubai Wire’s interest rates on short and long term loans in prior years were “comparable.”Consolidated Court No. 12-00133 Page 42

Id. at 28. Dubai Wire claims that, in basing its imputed interest rate on these unsupported findings, Commerce acted contrary to law and without record support. Id. at 28-29. 2. MCN MCN supports Commerce’s decision on the imput ed interest rate. MCN argues that Commerce acted in accordance with its established practice in refusing to use the loan rates of Dubai Wire’s affiliate when there were multiple rates for loans to Dubai Wire itself on the record. Mid Continent Nail Corp.’s Resp. to Def.-Int.’s Rule 56.2 Mots. and Brs. in Supp. (“

MCN Resp. Mem. ”) at 42, ECF No. 67. MCN also point s out that Commerce has previously relied on short-term unaffiliated loans as it did here. Id. at 42-43 (citing administrative determinations). As to the 2004 loan rate Dubai Wire argues Commerce should have relied upon, MCN contends that Commerce acted reason ably in relying instead on data more contemporaneous with the POI. Id. at 43. As to Dubai Wire’s contention that Commerce erred in interpreting the 2010 loan renegotiation as a “new” loan, MCN points to a questionnaire response in which Dubai Wire itself indicated th at it had “settled its outstanding dues” to the lender via the renegotiation. Id. at 43-44. MCN’s view is that Commerce based its determination that the old loan had been satisfied by a new loan via the renegotiation on this evidence in the record and therefore acted with record support. Id. Finally, MCN notes that Dubai Wire’s financial statements support Commerce in finding that the imputed rate Commerce chose was “comparable” to Dubai Wire’s “actual, effective market-based interest rate during 2010,” which was “even higher” than the imput ed rate “when properly time-adjusted.” Id. at 44- 45.Consolidated Court No. 12-00133 Page 43

3. Commerce Commerce justifies its decision not to rely on the rate of Dubai Wire’s 2004 (or its affiliate’s 2009) long-term loan by contending that it “was not required to rely on a previously negotiated 2004 or 2009 long-term loan rate to impute interest on a 2010 long-term loan simply because they were both long-term loans.” Commerce Opp. at 34. Citing prior decisions where it declined to rely on loan rates outside the POI, Commerce claims that it was reasonable to rely on 2010 short-term loan rates instead given that the relevant long-term loans had been renegotiated in 2010, effectively nullifying the re levance of the pre-2010 rates. Id. at 34-35. Commerce also points out that the 2004 loan was, for all prac tical purposes, a “new” loan for 2010 because its 2004 terms were “replaced by newly renegotiate d 2010 terms” effective after the end of 2009. Id. at 35. Finally, Commerce contends that Dubai Wire’s argument that it paid non-comparable interest rates on both short-termand long-term loans in prior years is not supported by the record. Id. at 36. Commerce points out that Dubai Wi re’s argument relies on rates on loans obtained by its affiliate, not itself, and states th at it acted reasonably and in accordance with the record in using rates on loans obtained by Dubai Wire itself instead of those obtained by its affiliate. Id. B. Commerce Is Affirmed as to the Imputed Loan Rate Dubai Wire’s complaint about the interest rate Commerce chose to impute is a quibble about Commerce’s exercise of aut hority under the statute to decidethe appropriate interest rate from “the information available” in the adminis trative record. 19 U.S.C. § 1677b(f)(2). The Court finds that Commerce gave due consideration to the evidence in the record in settling on theConsolidated Court No. 12-00133 Page 44

interest rate it imputed to D ubai Wire’s long-term affiliated loan. Co mmerce’s decision was reasonable because Commerce balanced the need to find a comparable loan with the nature of the available evidence to arrive at a measured solution. Contrary to Dubai Wire’s arguments, Commerce reasonably interpreted the record eviden ce as to the true import of Dubai Wire’s 2004 loan and its renegotiation. Commerce also reasonably weighed the competing interests in basing the imputed loan rate on long-term loans vers us basing it on evidence about actual 2010 loans taken by Dubai Wire itself. In choosing to ba se the imputed rate on the mid-point of Dubai Wire’s actual 2010 loans, even though those loan s were short-term rather than long-term, Commerce made a rational decision of exactly the sort authorized by the statute. Commerce’s decision also did not deviate inany unexpected or unreasonable manner from its prior pratice. The Court consequently affirms Co mmerce’s decision regarding the interest rate to be imputed to Dubai Wire’s long-term loan from an affiliate. C ONCLUSION For the reasons given above, it is hereby ORDERED that the decision of Commerce that Millennium and Precision were not affiliated companies be, and hereby is, affirmed; and it is further ORDERED that Commerce’s decision to use the BILDCO financial statements as a source for surrogate profit values in calculating CV be, and hereby is, affirmed; and it is further ORDERED that Commerce’s decision as to the most appropriate interest rate to impute to the loan Dubai Wire received from an affiliate be, and hereby is, affirmed; and it is furtherConsolidated Court No. 12-00133 Page 45

ORDERED that this case be remanded to Commerce for a redetermination, during the course of which Commerce mustapply the targeted dumping regulation improperly withdrawn by Commerce, given that the court has ruled that the Withdrawal Notice was invalid as it violated the notice and comment requirements of the Administrative Procedure Act; and it is further
ORDERED that counsel for the parties shall confer and no later than July 14, 2014 shall submit via ECF a joint proposed scheduling orde r to govern the completion of the remand redetermination, the filing of co mments by the parties, and the filing of a response to the comments by the Department.

________________________________ Gregory W. Carman, Judge Dated: June  , 2014 New York, NY /s/Gregory W. Carman