MEMORANDUM AND OPINION
This matter is before the Court after the United States Department of Commerce, International Trade Administration, (“Com
*1243
merce”) issued its final results of redetermi-nation on March 25, 1997
(“Second Redeter-mination”).
The
Second Redetermination
is the third time that Commerce has issued final results in this matter, and today’s decision is the third time that the Court has remanded Commerce’s results. Commerce issued the
Second Redetermination
pursuant to this Court’s most recent remand decision,
Usinor Sacilor v. United States,
— CIT-,
Today, the Court remands Commerce’s Second Redetermination because Commerce refused to adjust the countervailing duty to reflect these transfers. Instead, Commerce erroneously concluded that evidence of the French government’s intent, when it provided subsidies, and its control over Usinor Sacilor outweighs the evidence of the transfers. The Court holds that Commerce’s weighing analysis is not supported by substantial evidence. Because Commerce failed to adjust the countervailing duty to reflect the transfers, the Court remands the case to Commerce to adjust the countervailing duty. As part of today’s remand, the Court also clarifies prior remand instructions to aid Commerce when it reevaluates the evidence.
Additional background facts underlying this case can be found in this Court’s first remand decision,
Usinor Sacilor v. United States,
19 CIT-,
STANDARD OF REVIEW
When reviewing an agency’s factual findings, the Court must uphold the agency if its findings are supported by substantial evidence. 19 U.S.C. § 1516a(b)(l)(B) (1988). “Substantial evidence is something more than a ‘mere scintilla,’ and must be enough reasonably to support a conclusion.”
Ceramica Regiomontana, S.A. v. United States,
DISCUSSION
In its Second Redetermination, Commerce reviewed evidence establishing that the parent company, Usinor Sacilor, transferred funds to its non-French production operations during a period when it received coun-tervailable subsidies from the French government. Second Redetermination at 9-12.
Although Commerce recognized that Usinor Sacilor made large transfers of funds to non-French production operations, Commerce refused to adjust the countervailing duty to reflect these transfers. Instead, it assigned “marginal weight” to the transfers. Id. at 13. Commerce then concluded that evidence of the transfers was outweighed by other non-eeonomic evidence suggesting that the French government’s subsidies benefit-ted only French production operations. Id. at 13-14. This non-economie evidence consists of the French government’s intent in granting subsidies and its control over Usinor Sacilor. 1 Commerce concluded that the intent and control evidence is a better indicator of the likely effects of subsidies than evidence of transfers. Second Redetermination at 14. Commerce also argued that there is insufficient evidence to show that Usinor Sacilor actually used subsidies to fund non-French operations. Id.
*1244 The Court rejects Commerce’s weighing analysis as a way to evade this Court’s instructions in Usinor Sacilor II to adjust the countervailing duty to reflect all relevant evidence in the administrative record.
Assuming, for purposes of the instant review, that the evidence in the administrative record uniformly supports Commerce’s conclusion with regard to the French government’s intent and control, the Court nevertheless holds that the countervailing duty must be adjusted to reflect the transfers. The Court also rejects Commerce’s conclusion that there is no evidence showing that Usinor Sacilor would likely use subsidies to fund non-French operations. Second Rede-termination at 14.
Usinor Sacilor’s transfers to non-French production operations are persuasive evidence in the administrative record regarding the firm’s likely uses of subsidies. Id. at 9-12 (describing evidence of transfers contained in the administrative record). These transfers total hundreds of millions of dollars. Id. They constitute a definable percentage of the subsidies received by Usinor Sacilor from the French government. Id. Significantly, they represent the only hard financial evidence presented to this Court as to how subsidies may have been used. The Court finds that the transfers demonstrate that a portion of the subsidies were likely used to benefit Usinor Saeilor’s non-French production.
When Commerce refused to adjust the countervailing duty to reflect these transfers, it calculated the countervailing duty as if no such transfers were made. Commerce erred in this decision.
Although Commerce showed that Usinor Sacilor’s annual transfers to its non-French production subsidiaries amounted to a small percentage of the total amount of subsidies received by Usinor Sacilor each year, id. at 15-18, it did not find that these transfers are de minimis. Thus, even if these transfers only marginally affect the countervailing duty, as Commerce contends, they nevertheless have some effect. The present countervailing duty, therefore, fails to reflect all significant evidence contained in the administrative record. To this extent, the countervailing duty is inaccurate and unsupported by substantial evidence.
For the foregoing reasons, the Court remands this matter to Commerce to amend the countervailing duty to reflect the evidence of the transfers from the parent company to non-French production operations.
The Court also takes this opportunity to clarify two aspects of its earlier remand in
Usinor Sacilor II.
First, in its
Second Rede-termination,
Commerce incorrectly interpreted this Court’s instructions in
Usinor Sacilor II
to mean that it must only consider evidence contained in the plaintiffs’ supplementary briefs.
See Second Redetermination
at 9. The Court did not limit the scope of evidence to be considered by Commerce on remand. Rather, the Court instructed Commerce to consider all relevant economic evidence pertaining to the likely uses of subsidies.
Usinor Sacilor II,
— CIT at-,
Second, in
Usinor Sacilor II,
the Court did not direct Commerce to “trace” the subsidies to their actual end-use in the non-French subsidiaries. Rather, the Court instructed Commerce to examine the transfers that Usi-nor Sacilor made to its non-French subsidiaries. The Court determined that this evidence is germane because it indicates the extent to which subsidies were likely used for non-French production operations.
Usinor Sacilor II,
— CIT at-,
CONCLUSION
Upon consideration of all of the parties’ arguments and submissions, the Court remands Commerce’s Second Redetermination with instructions to analyze all direct economic evidence on the likely effects of subsi *1245 dies and to adjust the countervailing duty in light of this evidence. The Court’s order will be entered accordingly.
ORDER
This action having been submitted for decision; and the Court, after due deliberation, having rendered a decision herein; now, in conformity with said decision, it is hereby
ORDERED that the Final Results of Re-determination Pursuant to Court Remand (March 25, 1995) (“Second Redetermination ”) of the U.S. Department of Commerce, International Trade Administration, is remanded for reconsideration in accordance with the Court’s Memorandum and Opinion concerning the sales denominator used in computing Usinor Sacilor’s net subsidy; it is further
ORDERED that Commerce’s remand results are due to be filed within sixty (60) days from the date of this ORDER. Any comments or responses by the parties to the remand results are due on or before thirty (30) days thereafter, and shall be limited to twenty (20) pages. Any rebuttal comments are due twenty (20) days thereafter, and shall be limited to twenty (20) pages.
Notes
. The intent and control evidence to which Commerce refers in the
Second Redetermination
presumably consists of statements by French government officials in public and in cabinet meetings, protocols between the French govemment and Usinor Sacilor, and a study analyzing the restructuring of the French steel industry.
See Usinor Sacilor I,
19 CIT at -,