Abb, Inc. v. United States, 920 F.3d 811

Background

Commerce issued an antidumping duty order on large power transformers from Korea; Hyundai was a mandatory respondent and reported U.S. commission expenses for CEP sales but no home‑market commissions.
In the administrative review (Feb 16, 2012–July 31, 2013), Commerce initially deducted Hyundai’s U.S. commissions in calculating Constructed Export Price (CEP) profit but programming errors and ministerial corrections produced shifting treatments and amended results.
Commerce’s Second Amended Final Results moved U.S. commission data into a field (USCOMM) that produced a home‑market commission offset to normal value; ABB challenged that offset at the Court of International Trade.
The Court of International Trade (ABB I) remanded because Commerce’s preliminary materials suggested it was treating U.S. commissions differently from its usual practice and Commerce had not adequately explained whether a home‑market commission offset was appropriate.
On remand, Commerce ruled that commissions incurred inside the United States should be deducted under 19 U.S.C. § 1677a(d) as CEP selling expenses and that no circumstances‑of‑sale commission offset to normal value under § 1677b(a)(6)(C)(iii)/19 C.F.R. § 351.410(e) was warranted when (as here) no home‑market commissions or U.S.‑sales commissions incurred outside the U.S. existed.
The Court of International Trade (ABB II) sustained the Remand Results; Hyundai appealed, disputing the exhaustion ruling and the denial of a commission offset.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Court of International Trade abused its discretion in excusing ABB’s failure to exhaust administrative remedies	Hyundai: ABB failed to raise the commission‑offset objection administratively; exhaustion should bar review	ABB/Government: Commerce’s preliminary materials diverged from normal practice and failed to explain treatment, so exhaustion was not appropriate	Court and Fed. Cir.: No abuse of discretion — waiver appropriate given Commerce’s unexplained divergence from usual treatment (no exhaustion required)
Whether Commerce permissibly declined to grant a home‑market commission offset under 19 U.S.C. § 1677b(a)(6)(C)(iii) / 19 C.F.R. § 351.410(e) when commissions were incurred in the U.S. on CEP sales and no home‑market or non‑U.S.‑incurred U.S. commissions existed	Hyundai: Regulation requires a commission offset whenever commissions are allowed in one market and absent in the other — symmetry requires offset here	Commerce/ABB: § 1677a(d) already addresses commissions incurred in the U.S. by deducting them from CEP; granting an offset would double‑count and SAA contemplates treating U.S.‑incurred commissions as CEP expenses	Court and Fed. Cir.: Commerce’s interpretation is reasonable under Chevron; no offset required where commissions are incurred in the U.S. and already deducted from CEP
Whether Commerce’s approach produces arbitrary asymmetry or disparate treatment of similar scenarios	Hyundai: Commerce’s six‑scenario framework treats Scenario 6 (this case) differently, producing arbitrary asymmetry	Commerce: Its distinction follows statute, regulations, and SAA — avoids double counting and achieves fair comparison	Court and Fed. Cir.: Not arbitrary — Commerce reasonably explained distinction and tied it to statutory scheme and SAA
Whether Commerce’s interpretation improperly double‑counts or overlooks the SAA and regulations	Hyundai: Adjusting only CEP or only NV can lead to mismatches; regulation § 351.410(e) provides a separate basis for offsets	Commerce: SAA and § 1677a(d) direct deduction of U.S.‑incurred CEP expenses; § 351.410(e) applies where commissions in other markets must be equalized, not where U.S. commissions were already deducted	Court and Fed. Cir.: Commerce’s reading avoids double counting and aligns with SAA; permissible construction

Key Cases Cited

Boomerang Tube LLC v. United States, 856 F.3d 908 (Fed. Cir. 2017) (rejecting CIT’s waiver of exhaustion where parties could have raised issue administratively)
Consol. Bearings Co. v. United States, 348 F.3d 997 (Fed. Cir. 2003) (CIT has discretion to identify circumstances where exhaustion is not required)
Corus Staal BV v. United States, 502 F.3d 1370 (Fed. Cir. 2007) (courts should insist on exhaustion absent a strong contrary reason)
Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) (agency must adequately explain inconsistent statutory interpretations)
Nan Ya Plastics Corp. v. United States, 810 F.3d 1333 (Fed. Cir. 2016) (deference to CIT’s informed judgment but appellate de novo review applies)