Ellwood City Forge Co. v. United States

Slip Op. 26-69 UNITED STATES COURT OF INTERNATIONAL TRADE ELLWOOD CITY FORGE CO., ELLWOOD NATIONAL STEEL CO., ELLWOOD QUALITY STEELS CO., AND A. FINKL & SONS, Plaintiffs/Defendant-Intervenors, Before: Timothy M. Reif, Judge v. Consol. Court No. 21-0007 UNITED STATES, Defendant. BGH EDELSTAHL SIEGEN GMBH,, Defendant-Intervenor/Plaintiff. OPINION AND ORDER [Sustaining in part and remanding in part Commerce’s remand redetermination in the administrative review of the antidumping order on Fluid End Blocks from Germany.] Dated: June 29, 2026 James E. Ransdell, Cassidy Levy Kent (USA) LLP, of Washington, D.C., argued for plaintiffs and defendant-intervenors Ellwood City Forge Company, Ellwood Quality Steels Company, Ellwood National Steel Company, and A. Finkl & Sons. Also on the brief were Myles S. Getlan, Thomas M. Beline and Nicole Brunda. Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for defendant United States. Also on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy, Director, Franklin E. White, Jr., Assistant Director, and Kara M. Westercamp, Trial Attorney. Of counsel was Alexander Fried, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C. Marc E. Montalbine, deKieffer & Horgan, PLLC, of Washington, D.C., argued for plaintiffs and defendant-intervenors BGH Edelstahl Siegen GmbH. Also on the brief  Consol. Court No. 21-00077 Page 2 were J. Kevin Horgan, Gregory S. Menegaz, Alexandra H. Salzman and Merisa A. Horgan. * * * Reif, Judge: This action is a challenge to the Final Determination and Second Remand Redetermination of the U.S. Department of Commerce (“Commerce”) in its less-than-fair-value investigation into forged steel fluid end blocks (“FEBs”) from the Federal Republic of Germany (“Germany”). See Forged Steel Fluid End Blocks from the Federal Republic of Germany (“Final Determination”), 85 Fed. Reg. 80,018 (Dep’t of Commerce Dec. 11, 2020) and accompanying Issues and Decision Memorandum (“IDM”); Final Results of Redetermination Pursuant to Ct. Remand, ECF No. 80-1 (“Second Remand Redetermination”). In Ellwood City Forge Co. v. United States (“Ellwood I”), 46 CIT __, __, 600 F. Supp. 3d 1281 (2022), the Court remanded Commerce’s Final Determination for reconsideration of its particular market situation (“PMS”) adjustments to the dumping margin calculation for BGH Edelstahl Siegen GmbH (“BGH”). Id. at 1308. In Ellwood City Forge Co. v. United States (“Ellwood II”), Slip Op. 23-110, 2023 WL 4703309 (CIT July 24, 2023), the Court: (1) granted Commerce’s request for a remand to examine errors alleged by Ellwood City Forge Co., Ellwood National Steel Co., Ellwood Quality Steels Co. and A. Finkl & Sons (collectively, “Ellwood”); and (2) ordered Commerce to provide an adequate explanation for its decision on Ellwood’s request that Commerce employ alternative pathways to a PMS adjustment. Id. at *6. BGH requests that the court reject Commerce’s PMS adjustments for subsidized electricity rates and imported inputs of ferrochrome on the grounds that Commerce’s findings are not supported by substantial evidence and are otherwise not in accordance  Consol. Court No. 21-00077 Page 3 with law. BGH Edelstahl Siegen GMBH Cmts. on Second Remand Redetermination (“BGH Cmts.”) at 6-22, ECF No. 85. Ellwood moves the court to: (1) reject Commerce’s construction of 19 U.S.C. § 1677b(f)(1)(A) in the agency’s Second Remand Redetermination as contrary to law and unsupported by substantial evidence; and (2) remand the Second Remand Redetermination to the agency to reconsider the § 1677b(f)(1)(A) pathway for adjusting the agency’s antidumping calculations. Pls. Cmts. in Opp’n to the Final Results of Commerce’s Second Redetermination Pursuant to Ct. Remand (“Pls. Cmts.”) at 1-2, 26, ECF No. 83. For the reasons discussed below, the court sustains in part and remands in part Commerce’s Second Remand Redetermination. BACKGROUND I. Administrative Record The court presumes familiarity with the FEBs at issue as detailed in Ellwood I. 1 1 The International Trade Administration describes the types of FEBs considered within the scope of Commerce’s less-than-fair-value investigation as follows: The products covered by this investigation are forged steel fluid end blocks (fluid end blocks), whether in finished or unfinished form, and which are typically used in the manufacture or service of hydraulic pumps. The term "forged" is an industry term used to describe the grain texture of steel resulting from the application of localized compressive force. Illustrative forging standards include, but are not limited to, American Society for Testing and Materials (ASTM) specifications A668 and A788 . . . . The products covered by this investigation are: (1) Cut-to-length fluid end blocks with an actual height (measured from its highest point) of 8 inches (203.2 mm) to 40 inches (1,016.0 mm), an actual width (measured from its widest point) of 8 inches (203.2 mm) to 40 inches (1,016.0 mm), and an actual length (measured from its longest point) of 11 inches (279.4 mm) to 75 inches (1,905.0 mm); and (2) strings of fluid end blocks with an actual height (measured from its highest point) of 8 inches (203.2  Consol. Court No. 21-00077 Page 4 BGH is a German manufacturer of FEBs for import into the United States and a mandatory respondent in Commerce’s less-than-fair-value investigation at issue in the instant action. Ellwood I, 46 CIT at __, 600 F. Supp. 3d at 1287 (citing Compl., ECF No. 6). Ellwood is a domestic producer of a like product. Compl. ¶ 2. On December 19, 2019, Ellwood filed a petition with Commerce alleging that German exporters sold FEBs in the United States at less-than-fair value. Forged Steel Fluid End Blocks from the Federal Republic of Germany, India, and Italy, 85 Fed. Reg. 2394 (Dep’t of Commerce Jan. 15, 2020) (initiation of antidumping duty investigation). On December 11, 2020, Commerce published its Final Determination, assigning BGH a dumping margin of 3.82 percent. Final Determination, 85 Fed. Reg. at 80,019. On February 26, 2021, Ellwood challenged Commerce’s Final Determination regarding BGH. Compl. ¶¶ 23-39. On March 30, 2021, the Court granted BGH’s motion to intervene as defendant-intervenor. Order Granting BGH’s Mot. to Intervene, ECF No. 14. mm) to 40 inches (1,016.0 mm), an actual width (measured from its widest point) of 8 inches (203.2 mm) to 40 inches (1,016.0 mm), and an actual length (measured from its longest point) up to 360 inches (9,144.0 mm) . . . . A fluid end block may be imported in finished condition (i.e., ready for incorporation into a pump fluid end assembly without further finishing operations) or unfinished condition (i.e., forged but still requiring one or more finishing operations before it is ready for incorporation into a pump fluid end assembly). Such finishing operations may include: (1) Heat treating; (2) milling one or more flat surfaces; (3) contour machining to custom shapes or dimensions; (4) drilling or boring holes; (5) threading holes; and/or (6) painting, varnishing, or coating. Ellwood City Forge Co. v. United States (“Ellwood I”), 46 CIT __, __, 600 F. Supp. 3d 1281, 1287-88 (2022) (quoting Forged Steel Fluid End Blocks from the Federal Republic of Germany, India, and Italy, 85 Fed. Reg. 2394, 2399 (Dep’t of Commerce Jan. 15, 2020) (initiation of antidumping duty investigation)).  Consol. Court No. 21-00077 Page 5 On May 7, 2021, the Court granted Ellwood’s consent motion to consolidate the instant case with a companion case in which BGH challenged similar aspects of the Final Determination under consideration here. Order Granting Mot. to Consolidate Cases, ECF No. 18. The Court designated the instant case as the lead case. Id. II. Ellwood I In August 2021, Ellwood and BGH filed separate Rule 56.2 motions for judgment on the agency record. Pls. Rule 56.2 Mot. for J. on the Agency R., ECF No. 26; BGH Mot. for J. Upon the Agency R. (“BGH Rule 56.2 Mot.”), ECF No. 27. Ellwood asked this Court to remand Commerce’s Final Determination on the bases that: (1) the agency’s failure to conduct on-site verification was contrary to law; and (2) the agency’s Final Determination was unsupported by substantial evidence and contrary to law because it relied on unreconciled cost data. Pls. Br. in Support of Mot. for J. on the Agency R. at 17-36, ECF No. 26-1. BGH asked the Court to remand Commerce’s Final Determination on the grounds that: (1) Commerce erred in making PMS adjustments to BGH’s reported costs; and (2) Commerce erred in its application of differential pricing methodology. BGH Rule 56.2 Mot. at 5-22. Following oral argument in April, the Court issued its opinion in Ellwood I on November 8, 2022. 46 CIT at __, 600 F. Supp. 3d at 1287. The Court held that Ellwood had forfeited its verification claim and that Commerce did not err in its pricing methodology. Id. at 1308. The Court remanded the Final Determination to Commerce to remove its PMS adjustment in accordance with the decision of the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) in Hyundai Steel Co. v. United States,  Consol. Court No. 21-00077 Page 6 19 F.4th 1346 (Fed. Cir. 2021). Id. at 1302-03. In Hyundai Steel, the Federal Circuit upheld the CIT’s longstanding position that application of PMS adjustments in calculating the cost of production for sales below cost is inconsistent with 19 U.S.C. § 1677b(b). 2 Hyundai Steel, 19 F.4th at 1352-55. On this basis, the Court remanded “to allow Commerce to recalculate the dumping margin without impermissible cost-based [PMS] adjustments.” Ellwood I, 600 F. Supp. 3d at 1303. III. Ellwood II On March 14, 2023, Commerce filed its First Remand Redetermination with the Court, removing the PMS adjustment to BGH’s antidumping margin and providing BGH with a new dumping margin of zero. Final Results of Redetermination Pursuant to Ct. Remand (“First Remand Redetermination”) at 4, ECF No. 59-1. 2 (b) SALES AT LESS THAN COST OF PRODUCTION . . ., (3) CALCULATION OF COST OF PRODUCTION. For purposes of this part, the cost of production shall be an amount equal to the sum of— (A) the cost of materials and of fabrication or other processing of any kind employed in producing the foreign like product, during a period which would ordinarily permit the production of that foreign like product in the ordinary course of business; (B) an amount for selling, general, and administrative expenses based on actual data pertaining to production and sales of the foreign like product by the exporter in question; and (C) the cost of all containers and coverings of whatever nature, and all other expenses incidental to placing the foreign like product in condition packed ready for shipment. 19 U.S.C. § 1677b(b) (citation modified).  Consol. Court No. 21-00077 Page 7 In its First Remand Redetermination, Commerce responded to comments made by Ellwood arguing that Commerce improperly ignored alternative avenues to making its PMS adjustment to BGH’s production costs. Id. at 6. Commerce stated that “this remand redetermination is not the appropriate proceeding in which Commerce should address, for the first time, alternative possible interpretations of the [Federal Circuit’s] analysis in Hyundai Steel.” Id. On April 13, 2023, Ellwood filed comments opposing Commerce’s First Remand Redetermination, arguing that Commerce’s revision to the margin calculation: (1) contained an error 3 that distorted BGH’s dumping margin; and (2) was contrary to law on the grounds that Commerce refused to consider alternative pathways to adjust BGH’s production costs. Pls. Cmts. in Opp’n to the Final Results of Redetermination Pursuant to Ct. Remand at 2-17 (“Pls. Cmts. on First Remand Results”), ECF No. 63. In response, defendant argued that Commerce was barred from considering alternative pathways and requested voluntary remand to review the alleged error. Def. Resp. to Pls. Cmts. on the Remand Redetermination and Req. for Partial Voluntary Remand at 4-8, ECF No. 65. 3 In the Ellwood City Forge, Co. v. United States (“Ellwood II”), Slip Op. 23-110, 2023 WL 4703309 (CIT July 24, 2023) proceedings, Ellwood alleged that when Commerce removed the PMS adjustment, Commerce failed to remove that adjustment from the denominator of the equation used to determine the variable cost difference, “a filtering mechanism [used] to determine whether a given . . . product sold in the U.S. market can reasonably be compared with the closest, non- identical . . . product sold in the home market.” Pls. Cmts. in Opp’n to the Final Results of Remand Redetermination Pursuant to Ct. Remand at 2, ECF No. 63.  Consol. Court No. 21-00077 Page 8 On July 24, 2023, the Court published Ellwood II, which: (1) granted Commerce’s request for voluntary remand; 4 and (2) ordered Commerce to “consider the arguments made and state a fulsome rationale for either considering or not considering [p]laintiffs’ alternative pathways.” Ellwood II, 2023 WL 4703309 at *3, *6 (citing Bonney Forge Corp. v. United States, 46 CIT __, __, 560 F. Supp. 3d 1303, 1312 (2022) (“The Court reviews answers Commerce actually gave for substantial evidentiary support. It does not draft answers Commerce never gave from the available record information before the Department.”)). IV. Second Remand Redetermination On November 21, 2023, Commerce filed its Second Remand Redetermination with the Court, correcting the mathematical error alleged by Ellwood and providing BGH with a new antidumping margin of 3.08 percent. Second Remand Redetermination at 19. The agency addressed also Ellwood’s arguments regarding alternative pathways for a PMS and explained the reasons that such pathways were not permissible. Id. at 4- 8. On December 21, 2023, Ellwood filed comments in opposition to the Second Remand Redetermination, arguing that Commerce’s construction of 19 U.S.C. § 1677b(f)(1)(A) 5 is contrary to law. Pls. Cmts. at 1-2. Ellwood alleged also that 4 Pursuant to Federal Circuit precedent in SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001), Commerce is not considered to have confessed error in requesting remand to reconsider its previous position. See Ellwood II, 2023 WL 4703309 at *3; see also Ethyl Corp. v. Browner, 989 F.2d 522, 524 (D.C. Cir. 1993). 5 (f) SPECIAL RULES FOR CALCULATION OF COST OF PRODUCTION AND FOR CALCULATION OF CONSTRUCTED VALUE . . . . (1)COSTS  Consol. Court No. 21-00077 Page 9 Commerce’s determination that “BGH’s records ‘reasonably reflect’ production costs” was arbitrary and unsupported by substantial evidence. Id. On January 5, 2024, defendant filed a response, rejecting Ellwood’s arguments and requesting that the Court sustain Commerce’s Second Remand Redetermination and enter final judgment in favor of the United States. Def. Resp. to Pls. Cmts. on Remand Redetermination at 10, ECF No. 84. On January 22, 2024, BGH filed comments on the Second Remand Redetermination: (1) supporting Commerce’s response to Ellwood’s arguments regarding the agency’s construction of § 1677b(f)(1)(A); and (2) arguing that Commerce’s PMS adjustments related to electricity and ferrochrome are not supported by substantial evidence on the administrative record. See BGH Cmts. On July 7, 2025, pursuant to 28 U.S.C. § 253(c) and CIT Rule 77(e)(4), the instant action was reassigned. Ord. of Reassignment, ECF No. 115. JURISDICTION AND STANDARD OF REVIEW This court exercises jurisdiction over the instant action under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28 U.S.C. § 1581(c). (A) IN GENERAL. Costs shall normally be calculated based on the records of the exporter or producer of the merchandise, if such records are kept in accordance with the generally accepted accounting principles of the exporting country (or the producing country, where appropriate) and reasonably reflect the costs associated with the production and sale of the merchandise. The administering authority shall consider all available evidence on the proper allocation of costs, including that which is made available by the exporter or producer on a timely basis, if such allocations have been historically used by the exporter or producer, in particular for establishing appropriate amortization and depreciation periods, and allowances for capital expenditures and other development costs. 19 U.S.C. § 1677b(f).  Consol. Court No. 21-00077 Page 10 On remand, the Court will sustain a determination by Commerce if the determination is “in accordance with the remand order [is] supported by substantial evidence, and [is] otherwise in accordance with law.” Maclean-Fogg Co. v. United States, 39 CIT __, __, 100 F. Supp. 3d 1349, 1355 (2015) (citing 19 U.S.C. § 1516a(b)(1)(B)(i)); see also Prime Time Com. LLC v. United States, 45 CIT __, __, 495 F. Supp. 3d 1308, 1313 (2021) (“The court will uphold Commerce's determination unless it is ‘unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]’” (quoting 19 U.S.C. § 1516a(b)(1)(B)(i))). The “substantial evidence” standard requires “more than a mere scintilla” of evidence, Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)), “but is satisfied by ‘something less than the weight of the evidence.’” Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004) (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)). The standard requires that Commerce provide a “rational connection between the facts found and the choice made.” Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962). In reviewing Commerce’s determination, the Court assesses whether the agency’s action is reasonable given the record as a whole. Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must take into account whatever in the record fairly detracts from its weight.”). “[A]n agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983) (citing  Consol. Court No. 21-00077 Page 11 Burlington Truck Lines, 371 U.S. at 168; SEC v. Chenery Corp., 332 U.S. 194, 196 (1947); Am. Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 539 (1981)). DISCUSSION I. Whether Commerce’s finding of market distortions is supported by substantial evidence A. Legal framework 19 U.S.C. § 1677b(b)(1) provides that certain sales made outside “the ordinary course of trade” may be excluded from the calculation of normal value. The statute defines “ordinary course of trade” to exclude specifically sales below cost and situations in which a PMS does not allow for a proper comparison between normal value and export price or constructed export price. § 1677(15)(A), (C). Commerce may disregard sales made outside of the “ordinary course of trade” and instead rely on constructed value (“CV”) under § 1677b(e). § 1677b(a)(4). A PMS under § 1677(15) involves distortions in sales prices, which thereby affects whether Commerce may rely on home- market sales data for normal-value comparisons. This type of distortion is also referred to as a sales-based PMS. See, e.g., Saha Thai Steel Pipe Public Co. v. United States (“Saha Thai I”), 43 CIT __, __, 422 F. Supp. 3d 1363, 1370 (2019) (“Section 504(a) amended 19 U.S.C. § 1677(15), allowing Commerce to consider certain sales and transactions . . . to be outside the ordinary course of trade when a particular market situation prevents a proper comparison with the export price or constructed export price.”) (internal quotation marks omitted). A cost-based PMS, by contrast, refers to distortions in production costs—such as manipulated input or energy prices—addressed under § 1677b(e), which governs how Commerce constructs value. See, e.g., Id. Under that provision, a cost-based PMS  Consol. Court No. 21-00077 Page 12 exists when the “cost of materials and fabrication or other processing of any kind” deviates from the typical cost of production “in the ordinary course of trade,” and Commerce finds it more likely than not that this distortion affected the cost of production (“COP”) of the subject merchandise. § 1677b(e)(3). The 2015 Trade Preferences Extension Act (“TPEA”) amendment to § 1677b(e) authorizes Commerce to employ “another calculation methodology” when a PMS renders reported costs unreliable. Trade Preferences Extension Act of 2015, Pub. L. No. 114-27, 129 Stat. 362, 385. However, that authority applies only in the constructed- value context. When drafting the TPEA, “Congress did not leave a gap for Commerce to fill with regard to adjusting the costs of production. Rather, Congress simply and unambiguously allowed for a PMS adjustment to constructed value but not to the costs of production for purposes of the sales-below-cost test.” Hyundai Steel, 19 F.4th at 1354. The statute does not define “particular market situation” other than to require a showing that either the sales made, or the production costs incurred, are outside the “ordinary course of trade.” §§ 1677b(b), (e). The Federal Circuit has stated that “the circumstances supporting a ‘particular’ market situation also must be ‘particular’ to producers of the subject merchandise during the relevant period.” NEXTEEL Co. v. United States, 28 F.4th 1226, 1234 (Fed. Cir. 2022) (citing SeAH Steel Corp. v. United States, 45 CIT __, __, 513 F. Supp. 3d 1367, 1393 (2021)). The Court noted that “in addition to finding unique market phenomena, Commerce must demonstrate that those market phenomena prevent the cost of materials and fabrication from accurately reflecting the cost of production,” adding  Consol. Court No. 21-00077 Page 13 “Commerce must therefore identify what unique facts render the cost of materials and fabrication an inaccurate reflection of the cost of production in the ordinary course of trade.” Garg Tube Exp. LLP v. United States, 46 CIT __, __, 569 F. Supp. 3d 1202, 1211 (2022). Accordingly, to sustain a PMS determination under § 1677b(e), Commerce must identify evidence on the record of a particular market situation that distorts production costs such that the costs fall outside the ordinary course of trade and Commerce must reasonably explain, supported by substantial evidence, how that distortion affects the production costs of the producers under review. See NEXTEEL, 28 F.4th at 1234. B. Electricity 1. Whether Commerce’s findings of distortions in electricity pricing are supported by substantial evidence The court concludes that Commerce’s determination that the German electricity market is distorted is supported by substantial evidence. BGH argues that “no significant market distortions exist with respect to the German electricity market,” adding that “[t]here is no evidence that there is government control over pricing . . . to such an extent that home market prices cannot be considered to be competitively set.” BGH Cmts. at 10. BGH advances three main arguments. First, BGH argues that electricity in Germany is “produced, sold, and distributed by a network of private companies.” Id. Commerce explained that the presence of private actors does not preclude a finding of distortion where the government intervenes in pricing. IDM at 20. Instead, Commerce found that “the [German] regulatory regime distorts the costs of electricity in the German market such that a PMS exists. In addition to the government control over pricing for a  Consol. Court No. 21-00077 Page 14 portion of the electricity market alleged by the petitioner, this regulatory scheme is manifested in several electricity-related subsidy programs.” Id. Commerce concluded that these price-setting and subsidization programs, considered collectively, demonstrated substantial government efforts to control electricity pricing such that market prices are not competitively set. See id. The court agrees, as this Court has held previously, that the statute permits a PMS determination where there is government intervention in the market through price- setting or subsidy programs. See, e.g., Wilmar Trading Pte Ltd. v. United States, 46 CIT __, __, 582 F. Supp. 3d 1243, 1256 (2022) (upholding a PMS finding based on the extent of the Indonesian government’s control over biodiesel, rather than the number of programs, where that control rendered prices non-competitive and outside the ordinary course of trade). Congress expressly identified “government control over pricing to such an extent that home market prices cannot be considered to be competitively set” as an example of a PMS. See Uruguay Round Agreements Act, Statement of Administrative Action (“SAA”), H.R. Doc. No. 103-316, vol. 1, at 82 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4162. Further, the Federal Circuit observed in NEXTEEL that “[g]overnment control of electricity prices is a type of distortion expressly contemplated by Congress.” 28 F.4th at 1237. The court accordingly holds that Commerce’s basis for finding that the German electricity market is distorted due to government intervention is in accordance with law. BGH’s second argument is that there can be no PMS with respect to electricity costs in Germany because those costs are “far above” electricity costs in the United States even after accounting for German government reductions. BGH Cmts. at 10-12.  Consol. Court No. 21-00077 Page 15 Defendant argues that BGH’s comparison is misplaced. See Def. Sur-Reply to Consol. Pls. Cmts. on Commerce’s Remand Redetermination at 7 (“Def. Sur-Reply”), ECF No. 90 (finding BGH’s second argument “meritless” and explaining that, even if German electricity prices are higher relative to other countries, that comparison does not disturb Commerce’s conclusion—based on record evidence—that electricity prices in Germany are outside the ordinary course of trade (citing IDM at 20-22)). In the IDM, Commerce explained further that “where a PMS exists such that the price of certain input materials does not accurately reflect the cost of manufacture, it is within Commerce’s discretion to use another calculation methodology to calculate [a normal value] that reflects production costs in the ordinary course of trade.” IDM at 21. The court concludes that a PMS finding is not precluded under these circumstances merely because German electricity prices are higher than electricity prices in the United States. The SAA explains that cross-country comparisons may be informative but are not dispositive. See 1994 U.S.C.C.A.N. at 4162 (noting that “a particular market situation could arise from differing patterns of demand in the United States and in the foreign market,” for example where “significant price changes are closely correlated with holidays which occur at different times of the year in the two markets.”). By acknowledging that differing patterns across markets may indicate the existence of a PMS, Congress made clear that a cross-country price comparison alone is not determinative of whether a PMS exists. As noted, a PMS finding requires that Commerce: (1) show that the sales made, or the costs incurred, are outside the ordinary course of trade; and (2) explain how the circumstances supporting a “particular” market situation affect the producers of the  Consol. Court No. 21-00077 Page 16 subject merchandise during the relevant period. NEXTEEL, 28 F.4th at 1234; § 1677b(e); § 1677b(b). With respect to the first requirement, the court holds that Commerce’s finding that Germany’s electricity market is distorted by government intervention is supported by substantial evidence and in accordance with law. Commerce reasonably relied on record evidence showing that multiple government programs collectively influenced electricity pricing. The court addresses the second requirement—particularity—and BGH’s third argument below. 2. Whether distortions in German electricity prices are ‘particular’ The court is unable to determine whether substantial evidence supports Commerce’s finding that distortions in the German electricity market satisfy the particularity requirement for a PMS determination, or whether that finding is in accordance with law. BGH argues that “none of the electricity taxes or surcharges treated by Commerce as a PMS are [sic] particular to producers of fluid end blocks or even steel products in general.” 6 BGH Post-Oral Arg. Br. at 7, ECF No. 106. The electricity taxes or surcharges to which BGH refers include: “Sections 9a, 9b and 10 of the Electricity Tax Act, Sections 51, 54 and 55 of the Energy Tax Act, the EEG Special Equalization Scheme and Concession Fee Ordinance Relief.” Id. at 6. 6 Commerce’s PMS finding is made in regard to four German programs: the Stromsteuergesetz (“StromStG” or “the Electricity Tax Act”), Energiesteuergesetz (“EnergieStG” or “the Energy Tax Act”), Erneuerbare-Energien-Gesetz's Reduced Surcharge Program (the “Reduced EEG Surcharge Program” or “EEG Program”) and Konzessionsabgabenverordung (the “KAV Program” or the “Concession Fee Ordinance Program”). See BGH Edelstahl, 600 F. Supp. 3d at 1248 n.2; Second Remand Redetermination at 18.  Consol. Court No. 21-00077 Page 17 BGH provides four reasons that, in its view, none of the subsidization programs is particular. First, “Sections 9a, 9b, and 10 of the Electricity Tax Act are available to and used by thousands of companies throughout the German manufacturing sector, producing a myriad of products from glass and bricks to metals and chemicals.” Id. at 7. Second, “The EEG Special Equalization Scheme also applied to thousands of companies throughout the German manufacturing sector.” Id. In response to BGH’s first and second claims, defendant explains that “the 2018 Special Equalization Scheme is indeed particular to BGH Siegen and similar entities because the regulation sets an even lower artificial pricing floor for ‘electricity-intensive undertakings’ (such as themselves), while other German electricity users pay higher EEG surcharges.” Def. Letter Br. in Resp. to Procedural Order (“Def. Resp. Br.”) at 4-7, ECF No. 107 (citing Forged Steel Fluid End Blocks From the Federal Republic of Germany, 85 Fed. Reg. 31,454 (Dep’t of Commerce May 26, 2020) (preliminary countervailing duty determination) and accompanying Preliminary Decision Memorandum (unchanged in the final determination)); Forged Steel Fluid End Blocks From the Federal Republic of Germany, 85 Fed. Reg. 80,011 (Dep’t of Commerce Dec. 11, 2020) (final countervailing duty determination) and accompanying IDM). Defendant’s response aligns with the explanation provided in the parallel CVD investigation, to which Commerce cited in the IDM. See IDM at 20. This Court upheld Commerce’s conclusion in the parallel CVD investigation that BGH benefited specifically from relief provisions under the EEG, Electricity Tax Act and the Energy Tax Act. BGH Edelstahl Siegen GmbH v. United States, 46 CIT __, __, 600 F. Supp. 3d 1241, 1254- 61 (2022). The Court explained that although the Electricity Tax Act and the Energy  Consol. Court No. 21-00077 Page 18 Tax Act imposed additional taxes on companies, certain companies could apply for relief under specific provisions, such as Sections 9a, 9b, 10 of the Electricity Tax Act or Sections 51 and 55 of the Energy Tax Act, if the companies met requirements like energy-efficiency measures. Id. at 1253-54. Because BGH qualified for and used these programs, it paid less tax than it otherwise would have, meaning it received a benefit. Id. at 1254. That benefit was limited to certain eligible manufacturers like BGH, rather than all companies. Id. at 1253-57. Similarly, the Court held that the EEG Special Equalization Scheme was used as a mechanism “to distribute among electricity consumers the cost of promoting renewable energy sources” but that customers certified as “electricity-intensive undertakings . . . are entitled to a reduction in their EEG surcharge.” Id. at 1259. The Court concluded that “[t]he reduction of the surcharges lowered BGH's energy costs. Because BGH was able to receive energy for a lesser cost, Commerce's determination that BGH received a benefit was reasonable.” Id. at 1260. In the IDM, Commerce cited to the Court’s holding in the parallel CVD investigation to support the proposition that BGH benefitted from the Special Equalization Scheme, the Energy Tax Act, and the Electricity Tax Act, and that “[t]he sheer number and extent of these programs, when considered collectively, demonstrate the efforts undertaken by the German government to control the German market for electricity, thereby creating a PMS.” IDM at 20-21. In NEXTEEL, the Federal Circuit explained that “[t]he statute does not define ‘particular market situation,’ but the plain language of § 1677b(e) identifies the factual support Commerce must provide to invoke this provision.” 28 F.4th at 1234.  Consol. Court No. 21-00077 Page 19 The Federal Circuit noted that “[n]othing in the statute requires Commerce to quantify the distortion precisely. Still, a quantitative comparison showing a difference between costs incurred and costs in the ordinary course of trade could be substantial evidence supporting the existence of a particular market situation.” Id. Assessing this case in light of NEXTEEL, the court concludes that Commerce demonstrated that the EEG Special Equalization, the Electricity Tax Act and the Energy Tax Act conferred benefits targeted toward electricity-intensive manufacturers such as BGH. The court holds also that there is substantial evidence to support Commerce’s finding that the EEG Special Equalization and the Electricity Tax Act were a part of the German electricity scheme. Commerce explained how the electricity scheme was particular to BGH and found in the parallel CVD investigation that the scheme provided a specific benefit to BGH. Taken together, these findings support Commerce’s conclusion that BGH particularly benefited from the government’s intervention in the German electricity market. BGH’s third argument is that “[The Energy Tax Act] does not cover electricity but rather is limited to other energy products such as heating oil and natural gas.” BGH Cmts. at 16. Here, defendant responds that “[a]lthough the Energy Tax Act is limited to heating oil and natural gas, these energy sources are part of the German market for energy alongside electricity.” Def. Resp. Br. at 8 (citing BGH Edelstahl, 600 F. Supp. 3d at 1254 n.7). The court concludes that Commerce’s argument—that the Energy Tax Act is a part of an overall regulatory scheme that satisfies the particularity requirement and therefore the Energy Tax Act satisfies the particularity requirement as part of that scheme—is unpersuasive. Commerce failed to explain how the Energy Tax Act, which  Consol. Court No. 21-00077 Page 20 does not apply to electricity, contributes to distortions in electricity costs that are particular to producers of the subject merchandise. Finally, BGH argues that Commerce erred in considering benefits from the Concession Fee Ordinance Relief Program (also known as the “KAV Program”), because in one prior case the Court found that Commerce’s conclusion that the KAV Program was specific was not supported by substantial evidence. BGH Cmts. at 16; BGH Edelstahl, 600 F. Supp. 3d at 1269. BGH adds that the standard for particularity is higher than the standard for specificity and therefore, if electricity fails specificity, it ipso facto fails particularity. Tr. of Oral Arg. at 76:3-16, ECF No. 127 (Jan. 29, 2026). Defendant responds that while specificity is a prerequisite for countervailability, specificity is not required for a finding of particularity in connection with a PMS determination. Def. Resp. Br. at 8. Commerce further clarified that, in addition to the fact that the CVD case as it relates to the KAV Program is still ongoing, the “PMS finding is neither directly tied to that program alone, nor is it based entirely on the CVD determination.” Second Remand Redetermination at 18. Similar to Commerce’s explanation with regard to the Energy Tax Act, the court finds that Commerce’s arguments as they relate to the KAV Program are unpersuasive. Commerce failed to explain how the KAV Program is part of “the circumstances supporting a ‘particular’ market situation … [that are] ‘particular’ to producers of the subject merchandise during the relevant period.” NEXTEEL, 28 F.4th at 1234. In sum, Commerce’s particularity determination rests on four programs—the Electricity Tax Act, the Energy Tax Act, the EEG Special Equalization Scheme and the KAV Program. In view of this fact, the court remands for Commerce either to explain  Consol. Court No. 21-00077 Page 21 why the Energy Tax Act and the KAV Program support Commerce’s concl