Slip Op. 16-117
UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Timothy C. Stanceu, Chief Judge
Consol. Court No. 10-00106

OPINION [Affirming a decision issued in response to court order in an ac tion stemming from an antidumping duty proceeding on certain corrosion-re sistant carbon steel flat products from the Republic of Korea] Dated:December 15, 2016 Brady W. Mills and Donald B. Cameron , Morris, Manning & Martin, LLP, of Washington, DC, argued for plaintiff Union St eel Manufacturing Compan y, Ltd. With them on the brief were Julie C. Mendoza , R. Will Planert , Mary S. Hodgins, and Sarah S. Sprinkle. Donald B. Cameron , Morris, Manning & Martin, LLP , of Washington, DC, argued for plaintiff Dongbu St eel Company, Ltd. With him on the brief were Brady W. Mills , Julie C. Mendoza , R. Will Planert , Mary S. Hodgins , and Sarah S. Sprinkle

. Donald Harrison , Gibson, Dunn & Crutcher, LLP, of Washington, DC, for plaintiffintervenor Whirlpool Corporation.

UNION STEEL MANUFACTURING COMPANY, LTD. , Plaintiff, and WHIRLPOOL CORPORATION, Plaintiff-intervenor,

v. UNITED STATES , Defendant, and
UNITED STATES STEEL CORPORATION, NUCOR CORPORATION, and HYUNDAI HYSCO, Defendant-intervenors.Consol. Court No. 10-00106 Page 2

L. Misha Preheim , Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argue d for defendant. With him on the brief were Stuart F. Delery , Principal Deputy Assist ant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Of counsel for defendant was Michael Thomas Gagain , Office of the Chief Counsel for Trade Enfo rcement & Compliance, U.S. Department of Commerce, Washington, DC. Jeffery David Gerrish and Robert E. Lighthizer , Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for pl aintiff and defendant-intervenor United States Steel Corporation

. Timothy C. Brightbill , Wiley Rein LLP, of Washington, DC, argued for defendant-intervenor Nucor Corporation. With him on the brief was Alan H. Price

. J. David Park , Arnold & Porter LLP, of Washingt on, DC, for plaintiff and defendantintervenor Hyundai HYSCO. Stanceu, Chief Judge: In this consolidated action, four plaintiffs contested an administrative determination that the Internatio nal Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) issu ed to conclude the fifteenth periodic administrative review of an antidumping duty order on certain corrosi on-resistant carbon steel flat products (the “subject merchandise”) from the Republic of Korea (“Korea”). 1 Before the court is a determination (the “Second Remand Re determination”) Commerce issued in response to the court’s order in Union Steel Mfg. Co., Ltd. v. United States , 38 CIT __, 968 F. Supp. 2d 1297 (2014) ( “Union Steel II” ). Results of Redetermination Pursuant to Remand (Aug. 1, 2014), ECF Nos. 222 (Conf.), 223 (Public) ( “Second Remand Redetermination” )

. The court affirms the Second Remand Redetermination.

1 Due to the presence of common issues, the court consolidated th ree cases under Consol. Court No. 10-00106. Order (May 13, 2010) , ECF No. 46. Consolidated with Union Steel Mfg. Co., Ltd. v. United States , Court No. 10-00106, are Dongbu Steel v. United States (Court No. 10-00109), Hyundai HYSCO v. United States (Court No. 10-00127), and United States Steel Corp. v. United States (Court No. 10-00139).Consol. Court No. 10-00106 Page 3

I. B ACKGROUND Background on this case is provided in the co urt’s two previous opinions and orders. See Union Steel Mfg. Co., Ltd. v. United States , 36 CIT __, 837 F. Supp. 2d 1307 (2012) ( “Union Steel I” ); Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1300-02. In this Opinion and Order, the court supplements that background information. A. The Parties to this Action Three of the four plaintiffs in this acti on, Union Steel Manufacturing Co., Ltd. (“Union”), Hyundai HYSCO (“HYSCO”), and Dongbu Steel C o., Ltd. (“Dongbu”), are Korean producers and exporters of the subject merchandise. Un ion and HYSCO were mandatory respondents in the fifteenth administrative review; Dongbu was an unexamined respondent. The remaining plaintiff, United States Steel Corporation (“U.S. Steel”), was a petitioner in the fifteenth administrative review and is a defendant-interven or in this action. Nuco r Corporation (“Nucor”) also was a petitioner in the fifteenth administra tive review and also is a defendant-intervenor. B. The Contested Determination The administrative determination contested by the four plaintiffs (“Final Results”) is
Certain Corrosion-Resistant Car bon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Fifteenth Admin. Review , 75 Fed. Reg. 13,490 (Mar. 22, 2010) ( “Final Results” ). The fifteenth review pe rtained to entries of subject merchandise made during the period of August 1, 2007 through July 31, 2008 (“period of review” or “POR”). Final Results , 75 Fed. Reg. at 13,490. In the Final Results, Commerce incor porated by reference an Issues & Decision Memorandum (“Decisi on Memorandum”). Issues & Decision Mem., A-580-816, ARP 07-08 (Mar. 15, 2010) (Admin.R.Doc. No. 5249) ( “Decision Mem.” ). In the Final Results, Commerce assigned weighted-average dumping margins of 14.01% to Union and 3.29% toConsol. Court No. 10-00106 Page 4

HYSCO. Final Results , 75 Fed. Reg. at 13,491. As an unexamined respondent, Dongbu received the margin of 8.65% that Commerce assigned to all unexamined respondents, which Commerce calculated as a simple average of the non- de-minimis margins of the examined respondents. Id. C. The Redeterminations Commerce Issu ed in Response to the Court’s Orders Commerce issued a redetermination in response to the court’s order in Union Steel I

. Results of Redetermination Pursuant to Remand (Sept. 24, 2012), ECF No. 161 ( “First Remand Redetermination” ). In that redetermination (“Firs t Remand Redetermination”), Commerce revised Union’s margin from 14.01% to 9.85% and HYSCO’s margin from 3.29% to 1.46%. Id. at 67. Again assigning Dongbu a margin based on a simple average of the margins calculated for Union and HYSCO, Commerce changed Dongbu’s margin from 8.65% to 5.56%. Id. Following consideration of comments submitted to the court on the First Remand Redetermination and an oral argument, the court issued its decision in Union Steel II . In response, Commerce issued the Second Remand Rede termination, now before the court. In the Second Remand Redetermination, Commerce revised the 9.85% margin it pr eviously determined for Union to 9.83%. Second Remand Redetermination 44. It revised HYSCO’s margin from 1.46% to 5.56%. Id. Once again assigning Dongbu a margin based on a simple average of the Union and HYSCO margins, Commerce changed Dongbu’s margin from 5.56% to 7.70%. Id. Union and Dongbu commented in opposition to the Second Remand Redetermination, each raising essentially the same objections. Comments of Union Steel on the U.S. Dep’t of Commerce’s Aug. 1, 2014 Results of Redetermination Pursuant to Remand (Sept. 16, 2014), ECF Nos. 231 (Conf.), 232 (Public) ( “Union’s Comments” ); Comments of Dongbu Steel on the U.S. Dep’t of Commerce’s Aug. 1, 2014 Results of Redetermination Pursuant to RemandConsol. Court No. 10-00106 Page 5 (Sept. 16, 2014), ECF No. 233. ( “Dongbu’s Comments” ). HYSCO opposed the Second Remand Redetermination on a different ground. Response of Hyundai HYSCO to Defendant’s Second Redetermination on Remand (Sept. 16, 2014), ECF Nos. 234 (Conf.), 235 (Public). Defendant responded to these comment submissi ons. Def.’s Resp. to Comments on the Second Results of Redetermination Pursuant to C ourt Remand (Oct. 29, 2014), ECF Nos. 244 (Conf.), 245 (Public). The court held a second or al argument on April 16, 2015. ECF No. 260.
II. D ISCUSSION A. Jurisdiction and Standard of Review The court exercises jurisdiction under secti on 201 of the Customs Courts Act of 1980, 28 U.S.C. § 1581(c) (2006), pursuant to whic h the court reviews actions commenced under section 516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a, including an action contesting the final results of an administrative review that Commerce issues under section 751 of the Tariff Act, 19 U.S.C. § 1675(a). 2 When reviewing a determination of Commerce, including one issued in response to an order of remand, the court “shall hold unlawful any determination, finding, or conclusi on found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law. . . .” 19 U.S.C. § 1516a(b)(1)(B)(i). B. Decisions in the Second Remand Redetermination to which No Party Objects
In Union Steel II , the court sustained the First Re mand Redetermination in part and remanded the decision to Commerce with the di rective that Commerce reconsider the position taken on certain specific issues. With respect to four of the i ssues the court ordered Commerce

2 All statutory citations herein are to the 2006 edition of the United States Code and all citations to regulations are to the 2010 ed ition of the Code of Federal Regulations.Consol. Court No. 10-00106 Page 6 to reconsider, no party has objected to the re solution Commerce reached in the Second Remand Redetermination. Those four issues are discussed below. 1. Nucor’s Objections to the Calcula tion of Union’s Interest Expense Ratio
In Union Steel II , the court noted that Nucor had raised certain objections to the Department’s method for redetermining Union’s interest expense ratio. The court discussed these objections in detail in Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1307-08. In brief summary, Nucor argued that Commerce should not ha ve made a major input adjustment for steel coil when calculating the interest expense ratio and that even if it was permissible to do so, Commerce erred by using a method that double counted the major input adjustment. Id. Without opining on the merits of Nucor’s object ions, the court concluded that Commerce had failed to address these objections in the Fi rst Remand Redetermination and must do so in response to the order the court was issuing in Union Steel II. Id. , 38 CIT at __, 968 F. Supp. 2d
at 1308. In the Second Remand Redetermination, Commerce has responded to both of Nucor’s objections. Commerce expl ained, first, that the major input adjustment Commerce made to the cost of direct materials as part of the calculation of the cost of manufacturing (“COM”) necessitated a conforming change to the cost of sales (“COS”) denominator that was used in the calculation of the intere st expense ratio because the ratio was applied to the product-specific COM that included the ma jor input adjustment. Second Remand Redetermination 8. According to Commerce, “[t]his methodology ensured that the financial expense ratio and the COM to which the ratio was applied were on the same basis.” Id. (footnote omitted). Second, Commerce explained that it was necessary to adjust the COS denominator for the major input adjustment toConsol. Court No. 10-00106 Page 7 ensure that the total interest expenses alloca ted to specific products is not higher than the expenses Union actually incurred. Id. Nucor did not file comments on the Second Re mand Redetermination with the court. Because Commerce has provided a reasonable explanation and because Nucor raised no objection to that explanation, the court affirms the Department’s resolution of the two issues Nucor raised previously as to the interest expense ratio. 2. Revision to the Recovery-of-Costs Test Used in the Calculation of Normal Value for HYSCO In the Final Results, Commerce used a “ quarterly cost methodology,” under which Commerce determined the cost of production (“COP” ) of the foreign like product on a quarterly basis rather than on an annual, POR-wide basis. See Union Steel I , 36 CIT at __, 837 F. Supp. 2d at 1322-23, Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1308-10. Under section 773(b)(2)(D) of the Tariff Act, 19 U.S. C. § 1677b(b)(2)(D), a sale of the foreign like product in the home market may not be excluded from the normal value calculation as a belowcost sale if the price paid is “above the wei ghted average per unit cost of production for the period of . . . review.” In Union Steel II , the court concluded that an aspect of this “recovery-ofcosts” test that Commerce applied to HYSCO in the First Remand Redetermination did not comply with the statutory rule, under which “Co mmerce must calculate th e weighted average per unit cost of producing the good sold in the home market, and it must do so on a POR-wide (in this case, yearly) basis.” Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1311. Upon implementing its quarterly cost methodology, Comme rce used a “surrogate” cost (determined from the next most similar product) or an indexe d cost, rather than an actual cost of production, where a home market sale of a particular pr oduct (identified by contro l number, or “CONNUM”)Consol. Court No. 10-00106 Page 8 occurred in a quarter for which the record cont ained no home market cost data for the production of that CONNUM. Id. , 38 CIT at __, 968 F. Supp. 2d at 1310. In the Second Remand Redetermination, Commer ce revised its recovery-of-costs test as applied to HYSCO. Discontinuing reliance on surrogate costs, Commerce “relied upon HYSCO’s actual costs from the quarters in wh ich there was production during the POR to calculate HYSCO’s weighted-average POR cost for each CONNUM for use in the recovery-ofcost test.” Second Remand Redetermination 12 (footnote omitted). Because no party objected to the Department’s change in methodology, and beca use the change accords with the decision the court reached in Union Steel II , the court affirms this aspect of the Second Remand Redetermination. 3. The Department’s Use of Unindexed Quarterly Cost Data to Calculat e Constructed Value and DIFMER Adjustments for Union and HYSCO Commerce applied its quarterly cost met hodology in the fifteenth review because it determined that the cost of a major input, stee l coil substrate, changed significantly during the POR and that this changing cost was reasonably correlated with prices. Second Remand Redetermination 14. Commerce considered a cost change “s ignificant” if it was a 25% or greater change in the quarterly averag e cost of manufacturing a give n product, from the lowest-cost quarterly COM to the highest-cost quarterly COM, as a percentage of the lowest-cost quarterly
COM. Id. at 15. Commerce applied a quarterly cost method in c onducting its recovery-of-costs test pursuant to 19 U.S.C. § 1677b(b)(2)(D) and also used a quarterly cost method in calculating constructed value (“CV”) ( see 19 U.S.C. § 1677b(b)(e)) and in making the difference-inmerchandise (“DIFMER”) adjustment to normal valu e, calculated as the difference in variable cost of manufacturing associated with differenc es in physical characteri stics between a subject product sold in the United States and a product sold in the comparison market (here, the homeConsol. Court No. 10-00106 Page 9 market) that is similar but not identical, with which the su bject product is considered by Commerce for comparison. 3 In the fifteenth review, Commerce also “index ed” the cost of the substrate to a “common period cost level,” by which indexi ng it intended to neut ralize the effect of the cost changes for the input between quarters. See Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1309 & n.12. Following defendant’s request that the court remand this matter so that Commerce could review its indexed quarterly cost methodol ogy as applied to the cost recovery test, the court instructed Commerce to reconsider its use of the quarterly cost methodol ogy, including the use of indexing, wherever it was used in the Final Results. Id. , 38 CIT at __, 968 F. Supp. 2d at 1309-10. In the First Remand Redetermination, Commerce stated that “[i]n the interv ening time since the Department issued the final resu lts in this review in March 20 10, the Department has revised its approach in performing the cost recovery test so that it no longer indexes when calculating quarterly and annual weighted average costs.” First Remand Redetermination 16. In the Second Remand Redetermination, Commerce stated that it used unindexed quarterly cost data to calculat e constructed value and DIFMER. Second Remand Redetermination 12. Commerce explained that, consistent w ith its use of the quarterly cost method to determine cost of production (“COP”) in identifying below-cost sales, it decided also to use its quarterly cost method for construc ted value and for DIFMER in order to avoid distortions in its dumping analysis, noting that “[t]he CV and DIFMER adjustment are derived from the same CONNUM-specific costs as the COP.” Id. at 15. Commerce explained, further, that “[b]ecause the CV and DIFMER adjustment ar e also used in price-to -cost or price-to-price

3 Commerce, however, generally will not compare products for which the DIFMER adjustment is more than 20 percent of the tota l cost of manufacture of the U.S. product. T RADE & E NFORCEMENT C OMPLIANCE , U.S. D EPT

. OF C OM ., 2015 A NTIDUMPING M ANUAL 63 (2015).Consol. Court No. 10-00106 Page 10 comparisons, respectively, it follows that the dumping analysis would be distorted if the Department failed to calculate the CVs and the DIFMER adjustments in the same manner as the
COP.” Id. Because Commerce has provided a reasonable e xplanation for its decision to use its unindexed quarterly cost method for CV and DIFMER purposes, and because no party has objected to this decision, the court affirms this aspect of the Second Remand Redetermination. 4. Use of a Surrogate-Based Method in Calculating Constructed Value and DIFMER

In Union Steel II , the court noted that the First Re mand Redetermination did not inform the court whether using quarterly costs influenced a decision to use surrogate costs for CV and DIFMER in a manner similar to that the cour t found objectionable in th e application of the recovery-of-costs test to HYSCO when quarterly CONNUM-speci fic data were unavailable. Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1312. In the Second Remand Redetermination, Commerce stated that “[w]hile the Department did calculate costs for certain CONNUMs that were sold but not produced in a given quarter using a surrogate-based methodology, the method used is different than that which the Cour t found objectionable with respect to HYSCO’s recovery of costs.” Second Remand Redetermination 21. Commerce explained that for CV and DIFMER, Commerce used the actual costs asso ciated with production of the CONNUM, except that “[w]hen there was no production of a CONNUM in a particular quarter for which a CV or a DIFMER adjustment is needed, the Department selected the next most similar CONNUM, based on the physical characteristics, that was produced in the same quarter.” Id. Commerce stated, further, that “[t]he Department then added only the material cost for that surrogate CONNUM, to the actual POR weighted-average direct labor , variable overhead, and fixed overhead of the original CONNUM, to calculate the total co st of manufacturing of the CONNUM.” Id.Consol. Court No. 10-00106 Page 11 The explanation Commerce provided re sponds to the court’s question in Union Steel II as to the use of surrogate costs fo r constructed value and DIFMER. For this reason, and because no party objects to the Department’s resolution of th is issue, the court affirms this aspect of the Second Remand Redetermination. C. Date of Sale of HYS CO’s Subject Merchandise For sales that HYSCO made through its U. S. affiliate, Hyundai HYSCO USA, Inc. (“HHU”), to unaffiliated customers in the United Stat es, Commerce used as the dates of sale the dates the subject merchandise was shipped to the affiliate from Korea. Union Steel I , 36 CIT __, 837 F. Supp. 2d at 1334. U.S. Steel claimed that the decision to use the dates of shipment as the dates of sale, rather than the invoice dates, was inconsistent with the Department’s regulation, 19 C.F.R. § 351.401(i), and unsupported by substantial record evidence. Id. ; Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1319. In response to U.S. Steel’s claim, defendant moved that the issue be remanded to Commerce for reconsid eration, and the court granted this motion. Union Steel I , 36 CIT __, 837 F. Supp. 2d at 1335. In the First Remand Redetermination, Commer ce again decided to use the dates of shipment, rather than the invoice dates, as the dates of sale. Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1319 (citing First Remand Redetermination 62). The court held that Commerce erred in doing so because it had not made a va lid finding, as required by 19 C.F.R. § 351.401(i), that a date other than the date of invoice better reflect ed the date on which the material terms of sale were established. Id. , 38 CIT at __, 968 F. Supp. 2d at 1324-26. In the Second Remand Redetermination, Comm erce reversed its position, stating that “[h]aving reconsidered the issue in accordance with the Second Remand Order, the Department is using the date of invoice as the date of sale for HYSCO’s U.S. sales.” Second RemandConsol. Court No. 10-00106 Page 12

Redetermination 39. Commerce found that “record evidence reconsidered in response to the Second Remand Order indicates that the terms of sa le were subject to chan ge after shipment.” Id. at 40. Because that finding is supported by substantial record evidence, and because Commerce acted in accordance with its regulati on, 19 C.F.R. § 351.401(i), the court affirms the decision to base the dates of sale of HY SCO’s merchandise on the invoice dates. HYSCO contests the Departme nt’s new decision, arguing, inter alia , that substantial evidence does not support the Department’s finding that a material term of sale was subject to change after shipment, that the record eviden ce instead demonstrates establishment of the material terms of sale upon the date of shipme nt, and that Commerce impermissibly departed from its long-standing practice, under which shipme nt date is used as the date of sale if it precedes the invoice date. HYSCO’s Comments 3-12. The court rejects HYSCO’s arguments concerning the state of the record evidence. In the Second Remand Redetermination, Commerce pl aced weight on HYSCO’s own questionnaire response, noting that “HYSCO specifically repor ted that ‘{n}egotiations with customers can continue through the entire sales process’ and that ‘for U.S. sa les, quantity can also change up until the merchandise is shipped from HYSCO’s f actory, and price can cha nge up until {its U.S. subsidiary} HHU issues its invoice to the unaffiliated U.S. customer.’” Second Remand Redetermination 40 (quoting HYSCO’s Comments 23-24). Pointing out that “[i]t is well established that price is a mate rial term of sale,” Commerce stated that it “is relying on HYSCO’s own statement that the price could change between the time of shipment and invoice.” Id. at 42 (citation omitted). HYSCO alludes to “o ther record evidence,” HYSCO’s Comments 6, but fails to make the case that Commerce erred in reaching the finding that price was subject to change after shipment.Consol. Court No. 10-00106 Page 13 HYSCO’s argument that Commerce impermissibly departed from its long-standing practice of using shipment date as the date of sale if it precedes invoice date is also unconvincing. The pertinent regulation, 19 C.F.R. § 351.401(i), establishes what at least must be regarded as a “practice” for the use of invoice date except in a situation in which another date better reflects the date on which the material terms of sale were established. Commerce permissibly found on the record evidence that date of shipment was not such a date because the price term was subject to change thereafter. On the record befo re it, Commerce did not err in declining to apply what HYSCO characterizes as a practice when using date of shipment as the date of sale would have been at odds with the Department’s own regulation. D. Selection of the Contemporaneous Month Section 773(a)(1)(A) of the Tariff Act provides as a general matter that normal value is to be based on prices at which the foreign like pr oduct is sold in the home market “at a time reasonably corresponding to the time of the sale used to determine the export price or constructed export price.” 19 U. S.C. § 1677b(a)(1)(A). In an administrative review, “[w]hen comparing export prices (or constr ucted export prices) of individual transactions to the weighted average price of sales of the foreign like produc t,” Commerce “shall limit its averaging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sa le.” 19 U.S.C. § 1677f-1(d)(2). In its regulations, Commerce uses the term “c ontemporaneous month” to refer to what is, in the words of 19 U.S.C. § 1677f-1(d)(2), “the calendar month that corresponds most closely to the calendar month of the indivi dual export sale.” 19 C.F.R. § 351.414(e)(2). Reflecting the statutory language, the Depart ment’s regulations provide as a first preference that the contemporaneous month normally will be the month in which the U.S. sale occurred, i.e., theConsol. Court No. 10-00106 Page 14 month that is exactly contemporaneous. 4 Id. § 351.414(e)(2)(i). However, if there were no sales of the foreign like product during that month, Commerce normally will select as the contemporaneous month “the most recent of the thr ee months prior to the month of the U.S. sale in which there was a sale of the foreign like product.” Id. § 351.414(e)(2)(ii). If no sale of the foreign like product occurred during those three months, Commerce normally will select “the earlier of the two months following the month of th e U.S. sale in which there was a sale of the foreign like product.” Id. § 351.414(e)(2)(iii). The six-mont h period for comparisons as set forth in § 351.414(e)(2) is sometimes desc ribed as the “90/60 day window period.” In the Final Results, Commerce deviated from the normal procedure set forth in § 351.414(e)(2), limiting comparisons of individual U.S. sales to home market sales of the foreign like product that occurr ed during the same quarter of the twelve-month POR. See Union Steel I , 837 F. Supp. 2d at 1325-26. Comm erce explained that “when applying the alternative [i.e., quarterly] cost averaging methodology due to significantly changing co sts, the Department has in the past eliminated the ‘90/60’ day window period . . . . That is, the sales ‘contemporaneity’ period was modified to confor m with the shortened cost averaging period.”
Decision Mem. 20.

4 Section 351.414(e)(2) of the Department ’s regulations provides as follows: (2) Contemporaneous month. Normally, the Secretary will select as the contemporaneous month the first of the following which applies: (i) The month during which the particular U.S. sale under consideration was made; (ii) If there are no sales of the foreign lik e product during this m onth, the most recent of the three months prior to th e month of the U.S. sale in which there was a sale of the foreign like product. (iii) If there are no sales of the foreign like product duri ng any of these months, the earlier of the two months following the mont h of the U.S. sale in which there was a sale of the foreign like product. 19 C.F.R. § 351.414(e)(2).Consol. Court No. 10-00106 Page 15 Because Commerce based its decision to use a shortened, quarterly comparison window period, instead of the usual 90/60 day window pe riod, on its use of quarterly cost methodology, and because Commerce itself sought to reconsider some aspects of its use of the quarterly cost methodology in the fifteenth review, the court ordered that Commerce also “reconsider its associated decision to depart from the norma l method of determining the contemporaneous month that is described in 19 C.F.R. § 351.414(e)(2).” Union Steel I , 36 CIT at __, 837 F. Supp. 2d at 1326. In the First Remand Redetermination, Commer ce decided to make no change to its method of selecting the contemporaneous month. In explaining the decision, Commerce said, inter alia , that it was appropriate to match sale s only within the same quarter because “comparing home market sales from one quarter to U.S. sales dur ing another quarter of the POR when the unadjusted comparison market price does not reflect the contemporaneous price changes that have occurred through the date of th e U.S. sale distorts the dumping analysis.” First Remand Redetermination 29.
In Union Steel II , the court found inadequate the Depa rtment’s explanation for deviating from the normal procedure set forth in the regulation, § 351.414(e)(2). Focusing on the point that a comparison window that is shortened by half , i.e., from six months to three months, would be expected to produce fewer matches of identi cal products (in favor of matches of similar merchandise or, absent such a match, the use of constructed value) and thereby sacrifice some identical matches for the sake of some form of contemporaneity, the court concluded that Commerce did not explain how its method produ ced the most accurate dumping margin. Union Steel II , 38 CIT at __, 968 F. Supp. 2d at 1315. Also, the court observed that the method by which Commerce shortened the comparison window “largely dispensed with the hierarchy,Consol. Court No. 10-00106 Page 16 reflected in § 351.414(e)(2), of matching a U.S. sa le with earlier months of home market sales before resorting to subsequent months in a situ ation where no match could be made in the month in which the U.S. sale occurred.” Id. The First Remand Redetermination, in the court’s view, “does not explain why Commerce chose a met hod that deviated significantly from this hierarchy,” giving as an example th at “if a U.S. sale made in the first month of a quarter had no match in the month in which it occurred, it coul d not be matched with a home market sale (or sales) occurring in the immediately preceding month, despite the preference embodied in the regulation for the use of earlier months before the use of later months.” Id. (footnote omitted). The court ordered Commerce to reconsider its methodology “and, in so doing, address the two specific issues the court has raised.” Id. In the Second Remand Redetermination, Commerce decided, again, to leave unchanged its method of selecting the contemporaneous month, and in explaining its decision responded to both of the issues raised in Union Steel II

. In addressing the issues the court raise d, Commerce referred to its findings that “respondents’ costs increased sign ificantly throughout the POR ( i.e. , the increase exceeded the 25-percent threshold), and the sale s prices were reasonabl[y] correla ted to the movement of costs throughout the POR.” Second Remand Redetermination 26-27 (footnote omitted). The Department’s concern over significantly changi ng costs that are reasonably correlated with prices is that “the effects of time can distort the dumping anal ysis,” which distortion Commerce sought to minimize by shortening the comparison window. Id. at 23. According to Commerce, absent an effort to eliminate this distortion, “the Department would not simply be measuring pricing behavior, but it would al so include the impact of price differences that result from differences over time.” Id. at 25.Consol. Court No. 10-00106 Page 17 Regarding the effect on accuracy of shor tening the six-month 90/60 day window period to a three-month period, Commerce acknowledged that “[t]his is admittedly a difficult question in that there are two competing forces at pl ay: the preference for identical price-to-price comparisons, and the concern about the timing of price-to-price comparisons when costs are changing significantly throughout the POR and pri ces are reasonably correlated to the changing
costs.” Id. at 26. Answering this question, Commerce conc luded that “[i]n light of these record facts,” i.e., significantly changing costs and reason able correlation with pr ices, “it is reasonable for the Department to be concer ned about straying too far from the month of each U.S. sale in trying to find a NV [normal value] base d on comparison market sales prices.” Id. at 27. Commerce reasoned that “[t]he need to take step s to minimize the distortion that time has on cost and price comparisons outweighs the need to fi nd every identical matc h possible in cases like this one where there are significant cost cha nges and reasonably correlated prices.” Id. at 24. In that regard, Commerce cited da ta relating to the matches it performed for HYSCO and Union from which it concluded that lengthening the comparison window according to the 90/60 day normal procedure would have changed only a re latively small percentage of matches “from similar matches to identical matches.” Id. at 28. 1. Departure from the Normal Procedure of 19 C.F.R. § 351.414(e)(2) Commerce did not act contrary to law in d eciding to depart from the 90/60 day normal procedure of § 351.414(e)(2). Based on record ev idence, Commerce reached valid findings that Union’s and HYSCO’s costs of steel substrate va ried significantly over the course of the POR and reasonably were correlated with prices. The court finds satisfa ctory the Department’s explanation for its decision to depart from the normal procedure set forth in the regulation, basedConsol. Court No. 10-00106 Page 18 on the effect that significantly changing costs, when reasonably correlate d with prices, can be expected to have on meaningful comparisons between U.S. prices and normal value. Union and Dongbu do not argue that Commerce’ s findings as to si gnificantly changing costs or correlation with prices were, per se , invalid. Instead, they ar gue that the Department’s explanation for departing from the 90/60 day wi ndow period is conclusory, and its decision unsupported by substantial record evidence, b ecause Commerce has not identified record evidence that distortions in the dumping analysis actually would have occurred were the usual comparison window to have been used. Union’ s Comments 3-4; Dongbu’s Comments 3-5. This argument fails to persuade the court. Were the standard comparison window of § 351.414(e)(2) to have been used, the price of a U.S. sale occu rring, for example, near the end of a month of the POR could be compared with the price, or the we ighted average of prices , in a sale or sales occurring at the beginning of the month that was three months ear lier, i.e., a span of nearly four months. Where costs were changing signi ficantly over the period (and were reasonably correlated with pricing changes), th e price in the U.S. sale would be compared with the price or prices in a sale or sales with a significantly different cost stru cture. By provi ding that Commerce “normally” will use the § 351.414(e)(2) method, the regulation left Commerce discretion to shorten the comparison window to avoid such a length of time betw een a U.S. sale and the sale or sales in the comparison market . In other words, the Departme nt’s objective was to address the “distortion” that is inherent in the significantl y varying cost structure and the correlation with prices. Union and Dongbu have not made the case that Commerce was obligated to demonstrate “distortion” beyond the findings that it made. Union and Dongbu argue, further, that the 25 percent threshold Commerce applied to determine whether cost fluctuations were si gnificant was not a sufficient basis upon which toConsol. Court No. 10-00106 Page 19 base departure from the 90/60 day window peri od. According to their argument, Commerce needed to find significant cost and price variations between qua rters, and not merely over the entire POR. Union’s Comments 6; Dongbu’s Commen ts 5-6. But neither plaintiff has offered a convincing reason why Commerce, despite the di scretion allowed by its regulation, was required to impose a higher threshold for cost differences, a nd for correlation with pr ices, than it did. The generalized allegation that the threshold Comm erce used resulted in a decision unsupported by substantial evidence is insufficient. Because it points to no specific factual finding by Commerce that was unsupported, this argument re duces to a claim that the Department’s methodology itself was flawed. That Commerce c ould have demanded higher variability with cost or price before departing from the method of § 351.414(e)(2) doe s not establish the invalidity of the threshold Commerce chose. Pointing to the Department’s own finding th at the shortened comparison window resulted in fewer matches of identical merchandise, Union argues that “[a]lthough Commerce seeks to characterize the reduction in identical matches as small, the fact of the matter is that this is actual evidence that Commerce’s methodology does not resu lt in the most accurate matches possible” and that “[t]he statute contains a preference for the use of iden tical matches – period.” Union’s Comments 4 (citations omitted). Similarly, D ongbu asserts that the overarching obligation to achieve accuracy is not serv ed by deviating from the normal procedure of 19 C.F.R. § 351.414(e)(2). Dongbu’s Comments 3-4. These arguments, too, are unpersuasive. The preference in the statute for identical matches ( see 19 U.S.C. § 1677(16)) does not stand in isolation. Congress also provided that Commerce “shall limit its av eraging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale.” 19 U. S.C. § 1677f-1(d)(2) (emphasis added). Thus, in two respectsConsol. Court No. 10-00106 Page 20 Congress expressed a preference fo r matches that occur relativelyclose in time: Commerce may not use an averaging period exceeding one month to determine normal value based on prices in comparison-market sales, and contemporaneity w ith the U.S. sale is the principle by which Commerce is to choose that month. Contrary to the premise underl ying Union’s and Dongbu’s arguments, Congress identified both a preference for identical matches and a preference for contemporaneity as considerations underlying the concept of accuracy in the determination of a dumping margin. 5 2. Matching Each U.S. Sale Only to Sales Ma de During a Month Occurri ng in the Same Quarter of the Period of Review In the Second Remand Redetermination, Co mmerce responded to the issue the court raised as to the hierarchy reflected in the Department’s regulation, 19 C.F.R. § 351.414(e)(2). Commerce presented three reasons for its reta ining its method of shortening the comparison window. Commerce explained, first, that the “quarterly” method it followed sought to preserve the hierarchy within the confines of its quarterl y approach, i.e., as limited by the objective of

5 Union also argues that had Commerce c onsidered the comparison window to also include the 90-day period before the start of th e POR and the 60-day period at the end of the POR, the reduction in identical matches caused by the Department’s decision not to use the 90/60 day comparison window of 19 C.F.R. § 3 51.414(e)(2) would have been far greater than Commerce estimated. Comments of Union St eel on the U.S. Department of Commerce’s Aug. 1, 2014 Results of Redetermination Pursua nt to Remand 5-6 (Sept. 16, 2014), ECF Nos. 231 (Conf.), 232 (Public) (“Union’s Comments ”). Defendant argues that because Union failed to raise this objection in commenti ng on the draft version of the Second Remand Redetermination, on which Commerce invited comments before submitting the Second Remand Redetermination to the court, Union failed to exhaust its administrative remedies on this argument. Def.’s Resp. to Comments on the S econd Results of Redeterm ination Pursuant to Court Remand 14 (Oct. 29, 2014), ECF Nos. 244 (Conf .), 245 (Public). The court agrees with defendant but notes that Union’ s argument would not be pers uasive in any event because Commerce acted within its discretion in bala ncing the statutory objectives of maximizing identical matches and ensuring contemporaneity.Consol. Court No. 10-00106 Page 21 matching a U.S. sale only to a home market sale o ccurring within the same quarter of the POR. Specifically, Commerce stated that “its comp arison window period method under the quarterlycost methodology still follows the hierarchy of fi rst trying to find a match in the month of the U.S. sale, then going back one month, then tw o (as long as doing so remains with the given quarter), then forward one month, then two (again as long as doing so remains within the given quarter).” Remand Redetermination 29. Second, as a reason for limiting matches to a sa le or sales made during a month occurring in the same quarter of the POR, Commerce e xplained that it “limited the normal 90/60 day window to the quarterly window period in order to be consistent with the pe riod used to calculate the COP, the CV and the DIFMER adjustment.” Id. Commerce added that its “reasoning is that if it considers it inappropriate to compare sales prices with quarterly COPs or CVs incurred outside of the quarter in which the sale occurred, then it is similarly inappropriate to compare U.S. sales prices occurring in a given quarter to NVs based on comparison market sales prices occurring in a quarter outside of that in which the U.S. sale occurred.” Id. Third, Commerce gave, as a reason underlying its decision, its objec tive of adopting a “standard approach” of using only matches with in the same quarter when it shortens the comparison window in a case in which it calculat es costs (for example, for COP, CV, and DIFMER purposes) on a quarterly ba sis. Commerce stated that it “needs to adopt a predictable method that is consistently applied, and, unless ther e are specific facts in an investigation or a review that warrant deviation from the normal alternative-quarterly-cost-method approach, the Department should follow its standard approach, which necessitates departing from the hierarchy prescribed by 19 CFR 351.414(e)(2).” Id. at 32.Consol. Court No. 10-00106 Page 22 In objecting to the Second Remand Redete rmination, Union and Dongbu argue that in shortening the six-month comparison window, Co mmerce impermissibly departed from the hierarchy principle embodied in § 351.414( e)(2). Union’s Comments 10-12; Dongbu’s Comments 8-11. Alluding to the hierarchy princi ple, Union argues that “absolutely nothing in the regulation indicates that Commerce may vary the order of preferen ce for selecting the ‘contemporaneous month’ based upon where each m onth of the POR falls within the arbitrarily defined ‘quarters’ used for cost averaging,” Union’s Comments 7; see also Dongbu’s Comments 9. Union argues, furt her, that “nothing in the text of 19 C.F.R. § 351.414(e)(2) or in the rulemaking proceeding leading to its proposa l and adoption suggests that the definition of ‘contemporaneous month’ is dependent, either logically or legally, on the time period over which Commerce averages costs for purposes of COP, CV, and th e DIFMER adjustment.” Union’s Comments 7. Dongbu makes essentially the same argument. Dongbu’s Comments 9. The gist of Union’s and Dongbu’s arguments is that Commerce could have, and according to its regulation should have, preserved the hier archy principle of § 351.414(e)(2) even upon shortening the comparison window, and that a desire to adhere to the f our quarters of the POR for price comparisons was not a valid reason to do otherwise. Commerce adopted the hierarchy principle as an exercise of its rulemaking discretion in promulgating § 351.414(e)(2). Union’s and D ongbu’s arguments overlook the point that by using the word “normally” in the text of th e regulation, Commerce has reserved for itself the discretion as to whether or not to depart from that principle. In conducting the fifteenth review, Commerce could have adopted any of various ap proaches to limiting the time period for price comparisons; for example, it could have modified the normal procedure to create a three-month comparison window in a way that, in the absence of a comparison market sale occurring in theConsol. Court No. 10-00106 Page 23 month of the U.S. sale, looked to the prior m onth for a match or matches before considering matches in the month after the U.S. sale occurred. This would have preserved the general hierarchy principle of § 351.414(e)(2) in all inst ances, regardless of whether the prior month occurred in the same quarter as the U.S. sale . Under such a procedure, the comparison window would be confined to a three-month period, alth ough not necessarily the three-month period of an established quarter of the POR. It could be argued that this proce dure would have addressed the Department’s desire to avoid comparing a U. S. sale to a sale or sales that occurred too remotely in time, while still preserving the hierar chy principle. It could be argued, further, that this procedure would better ensure contemporaneity than the procedure Commerce used, because the comparison market sale or sales would be used only if occurring no more than two months from the date of the U.S. sale, whereas under th e procedure Commerce adopt ed in the review and maintained through the Second Remand Redetermination, the period of separation could be as much as three months (where a U.S. sale occurrin g on the last day of a quarter is compared to a home market sale or sales occurri ng on the first day of that quarter). Where, as here, neither the antidumping statute nor the applicable regulation, 19 C.F.R. § 351.414(e)(2), requires a specific procedure, Commerce must be ac corded significant discretion on its choice of methodology. A revi ewing court must exercise caution before disturbing the exercise of that discretion. In light of that discre tion, it was reasonable for Commerce to regard changing produc tion costs, as generally reflected in prices, to relate to the question of the timing, i.e., the contemporaneity, of price-to-price compar isons between U.S. and home market sales. Similarly, after finding a correlation between costs and prices, Commerce acted within its discretion in a dopting a procedure that allowed c onformity between the quarterly basis of its calculation of pr oduction costs for COP, CV and DI FMER and the quarterly basisConsol. Court No. 10-00106 Page 24 upon which it would compare U.S. and home market pr ices. Essentially, the two plaintiffs object on conceptual grounds that Commerce was required to regard quarterly calculation of costs for COP, CV, and DIFMER as distinct from the que stion of whether price comparisons should be confined to the same quarters used for those cost calculations. Uni on’s Comments 12; Dongbu’s Comments 11 (“The former is a cost issue and the latter is a price-to-price comparison issue.”). But here, it is sufficient that Commerce permissi bly found costs to have varied significantly over the course of the POR and to have been reasonabl y correlated with prices and that it considered COP (i.e., as used for determining whether to exclude from normal value below-cost home market sales), CV, and DIFMER also to be based on costs. 6 The Department’s analysis recognizes that COP and CV relate to the de termination of normal value, and DIFMER, as applied by Commerce, is an adjustment to norma l value. In the cont ext of comparing normal value to U.S. price, as a matter of consistenc y Commerce permissibly pref erred that U.S. sales occurring in an established quarter of the POR be compared with a sale or sales of the foreign like product occurring in that same quarter.

6 Union and Dongbu claim that in explaini ng its decision Commerce illogically cited 19 U.S.C. § 351.414(d)(3), which addresses the time period for average-to-average comparisons rather than average-to-transaction comparisons , and the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol. 1 (1994) at 843, which addresses constructed value, neither of which Union and Dongbu consider to be relevant to the issue of departure from the normal me thod of § 351.414(e)(2). Union’s Comments 11-12; Comments of Dongbu Steel on the U.S. Department of Commerce’s Aug. 1, 2014 Results of Redetermination Pursuant to Remand 9-10 (Sept. 16, 2014), ECF No. 233. The court agrees that these citations are not directly relevant to the issue presen ted; however, the Second Remand Redetermination can be interpreted to rely upon these sources only for the general point that Commerce, which in some instances may use nons tandard time periods for cost averaging, also may deviate from its normal procedure when performing price comparisons affected by cost changes. In any event, the Department’s incl uding these citations doe s not support a conclusion that the general factors upon wh ich Commerce relied for its decision, which the court discussed supra , are unreasonable.Consol. Court No. 10-00106 Page 25 Moreover, Commerce has responded in the Seco nd Remand Redetermination to the issue the court raised as to the hierarchy princi ple by explaining the grounds that comprise the Department’s reasoning. The considerations th e Department identified, i.e., the desire to maintain consistency between the time period for its price comparisons and the quarterly basis of its three types of cost calculati ons, and the desire to further th e interest of predictability by continuing to apply its “standard,” i.e., quarterly, approach to matching when departing from the normal method of § 351.414(e)(2), cannot be charact erized as unreasonable when viewed in light of the discretion Commerce possesses. If the court were to accept and act upon Union’s and Dongbu’ s abstract objections to the Department’s methodological choice, it would be substituting its ow n judgment for that of the agency. Because Commerce must be allowe d discretion in its choice of methodology, the question posed by its choice is not whether a re viewing court, were it to exercise its own judgment as to what would be an ideal appr oach for shortening the comparison window and thereby departing from the normal procedur e of § 351.414(e)(2), would have preferred Commerce to have used a diffe rent method. Instead, the question is whether Commerce has acted within its discretion in making that methodol ogical choice and, in response to the issues the court raised in Union Steel II , has provided a rational explanation for it. The court concludes that Commerce has satisfied both of these requirements. The court, therefore, will affirm the Department’s decision to use only those matche s between U.S. sales and comparison market sales that occurred during th e same quarter of the POR.Consol. Court No. 10-00106 Page 26

III. C ONCLUSION For the reasons discussed in the fore going, the court affirms the Second Remand Redetermination and will enter judgment accordingly. 7 /s/ Timothy C. Stanceu Timothy C. Stanceu Chief Judge Dated: New York, New York

7 Upon review and recalculation, the Second Remand Redetermination revised Union’s margin slightly, from 9.85% to 9.83%. Results of Redetermination Pursuant to Remand (Aug. 1, 2014) 44, ECF Nos. 222 (Conf.), 223 (Public) ( “Second Remand Redetermination” )

. Because no party commented on this minor adjustment, the court affirms the Department’s final determination of 9.83% as Union’s margin. December 15, 2016