OPINION AND ORDER
In this action ABB, Inc. (“Plaintiff’ or “ABB”) challenges the final results of the U.S. Department of Commerce (“Commerce”) in its first administrative review of the antidumping duty order on large power transformers (“LPTs”) from the Republic of Korea for the February 16, 2012 to July 31, 2013 period of review (“POR”). Large Power Transformers from the Republic of Korea, 80 Fed. Reg. 17,034 (Dep’t Commerce Mar. 31, 2015) (final results of antidumping duty administrative review; 2012-2013) (“Final Results”), Public Joint App. (“PJA”), Doc. 1, ECF No. 72; Confidential Joint App. (“CJA”), Doc. 1; Public Admin. R. (“P.R.”) 276, ECF No. 26-9;
Background
The present case challenges the final results of Commerce’s first administrative review of the antidumping duty order on large power transformers from the Republic of Korea. See generally Final Results] see also Large Power Transformers from the Republic of Korea, 77 Fed. Reg. 53, 177 (Dep’t Commerce Aug. 31, 2012) (anti-
I. Original Investigation
On August 10, 2011, Commerce initiated an antidumping duty investigation on large power transformers from Korea. Large Power Transformers from the Republic of Korea, 77 Fed. Reg. 9,204 (Dep’t Commerce Feb. 16, 2012) (prelim, determination of sales at less than fair value and postponement of final determination) (“LTFV Prelim. Notice”), The period of investigation (“POI”) was from July 1, 2010, through June 30, 2011. Large Power Transformers from the Republic of Korea, 77 Fed. Reg. 40,857 (Dep’t Commerce July 11, 2012) (final determination of sales at less than fair value) (“LTFV Final Results”), CJA, Doc. 5; PJA, Doc. 5 and accompanying Issues and Decision Mem., A-580-867 (July 2, 2012) (“LTFV I & D Mem.”) at 2, CJA, Doc. 6; PJA, Doc. 6. Commerce selected Hyundai and Hyosung as mandatory respondents and issued its final determination on July 11,2012. LTFV Prelim. Notice,
In the final determination for the less than fаir value (“LTFV”) investigation and accompanying Issues and Decision Memo, Commerce addressed the issue of “un-shipped sales,” explaining that when “the merchandise under consideration. are large, complex, capital intensive custom made products that take many months to produce and install, the Department is often faced with the decision to balance the use of actual costs in their entirety with maximizing the population of sales to use to calculate a dumping margin.” LTFV I & D Mem. at 43-44, 61-62. In the investigation, Commerce extended the period for reporting actual costs incurred to six months beyond the end of the POI. Id. at 43. However, in calculating the dumping margins, Commerce used only POI sales that had been completed and shipped as of December 31, 2011, and excluded from consideration those sales that were incomplete or unshipped as of that date.' Id. Commerce reasoned that; because the unfinished sales continued to be produced, the relevant sales and cost data would continue to change. Id.; see also id. at 59 (Hyosung explained that customers may request additional services or cancel previously requested services up until the time of delivery).
II. First Administrative Review
On October 2, 2013, Commerce initiated the first administrative review for the period February 16, 2012 through July 31, 2013. Initiation of Antidumping and Countervailing Duty Admin. Reviews and Request for Revocation in Part, 78 Fed. Reg. 60,834 (Dep’t Commеrce Oct. 2, 2013), CJA, Doc. 7; PJA, Doc. 7; P.R. 6. ABB requested the review, and Hyosung and Hyundai were again selected as mandatory respondents. I & D Mem. at 3.
As part of the review, Commerce requested that both Hyosung and Hyundai report actual and/or updated data for all transactions that were shipped, sold and entered the Unitéd States during the POR, including “overlapping sales” that were reported based on estimated data during the investigation, but had shipped during the POR. Id. at 14-16 (explaining the issue of “overlapping sales” with respect to Hyo-sung and noting Commerce’s request for updated information for all “overlapping sales” shipping during POR); see also id. at 47 (explaining the issue of “overlapping sales” with respect to Hyundai); see also LTFV I & D Mem. at 42-44, 61-62. .
Jurisdiction and Standard op Review
The court has jurisdiction pursuant to § 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012),
The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19' U.S.C. § 1516a(b)(l)(B)(i). “Substantial еvidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United States,
Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.
Discussion
I. Hyosung’s Final Margin Determination
ABB argues that Commerce’s determination of Hyosung’s final margin is unsupported by substantial evidence on the record because discrepancies exist between data that Hyosung provided to Commerce during the LTFV investigation and the first administrative review. ABB argues that these and- other discrepancies undermine -the reliability of Hyosung’s U.S. price and expense data and Commerce should have used facts available or facts available with an adverse inference (“adverse facts available” or “AFA”)
i. Discrepancies in Hyosung’s Data for Overlapping Sales
ABB contends that “Commerce relied on inconsistent and inaccurate data” submitted by Hyosung that artificially increased reported U.S. prices in the underlying [first administrative review] from those verified for the same sales reported in the immediately preceding original investigation” and that Commerce failed to “adequately address this detrаcting information in the Final Results.” Pl.’s MJAR at 14 (underline omitted). ABB’s claims rest on allegations of discrepancies in price and expense data reported for U.S. sales that were unshipped during the original investigation and that entered the United States during the first administrative review (referred to as “overlapping sales”), Id. Defendant notes that Commerce issued multiple questionnaires in response to ABB raising this concern during the administrative proceeding and reasonably determined that the data was sound. Defi.’s Resp. at 12-13,
' The Court reviews Commerce’s determination for substantial evidence on the record. In response to ABB’s concern regarding the discrepancies between the estimated and actual data,' Hyosung responded to multiple supplemental questionnaires, providing information to permit Commerce to evaluate the reliability of Hyosung’s data. I & D Mem. at 16-17; see e.g, Hyosung’s Apr. 10, 2014, Supplemental Section A-C Questionnaire Response (“Hyosung Apr. 10 SQR”) at 23-24, ECF Nos. 82-9 — 82-14; C.R. 255-260; P.R. 125-126; Hyosung’s July 2, 2014, Supplemental Section A-C Questionnaire Response (“Hyosung July 2 SQR”) at. S-18 — S-22, .ECF No. 82-26; C.R. 308-14; P.R. 160-61. ■ Commerce determined that Hyosung persuasively demonstrated the completeness and accuracy of its reported sales by providing source documentation such ; as “sales contracts/purchase orders, amended purchase orders, invoices, payment records, and numerous other documents” and that “[ABB’s] analyses are misplаced and simply incorrect in ■ each instance.” I & D Mem. at 16. Commerce also concluded that ABB’s claims regarding the changes in data for the overlapping sales “can be attributed to either Petitioner’s own misrepresentation of record evidence^] or'(l) the reporting of estimated values .., (2) consideration of amended or revised purchase orders issued by the U.S. customer, or (3) expanded scope of services requested by the U.S. customer for the sale ..Id. at 16..
The Court has reviewed the record evidence showing that Commerce requested documents and information, and Hyosung complied with these requests in order to address questions about its data. The Court, finds that Commerce’s conclusion that Hyosung’s data was reliable, is supported by substantial evidence on the record. I & D Mem. at 16 n. 77 (noting multiple questionnaire responses from Hyosung). It logically follows from the circumstances surrounding the “overlapping sales” that the estimates reported during the LFTV investigation could and would differ from the actual costs reported during the administrative review, and both Commerce and Hyosung had anticipated this.
' ABB also raised certain' Specific issues regarding Hyosung’s data and the Court will now address those in turn.
• ABB’s First Selected Transaction
To illustrate its claim that there were discrepancies in the data supplied by Hyosung, ABB alleges that Hyosung reported an increase in gross unit price for a selected transaction at the same time as it reported a decrease in the actual cost of producing the unit.
The Court finds that substantial evidence supports Commerce’s reliance on Hyosung’s, reported price and costs for this transaction. See, e.g., Hyosung Aug. 21 SQR at 10-16. Hyosung responded to every, request issued by Commerce regarding this sale, and supplied data and supporting documentation for its responses. See I & D Mem. at 17. While ABB claims that it was unable to locate a specific document (a test sheet) that should have further confirmed the size and weight of the final product, ABB was not able to identify where or when Commerce requested this particular document. The absence, of this unrequested document is contrasted by the record as a whole and the remainder of the documentation and explanations provided by Hyosung to Commerce during the
ii. Hyosung’s Gross Unit Price (GUP) Relative to Reported Expenses
ABB argues that there is conflicting data on the record regarding Hyosung’s reported expenses and gross unit prices. ABB alleges that there are discrepancies in Hyundai’s reported freight expenses that result in improperly marked-up freight revenues beyond actual costs and consequently, inflated U.S. prices. See PL’s MJAR at 23-24. ABB identifies a second selected transaction to illustrate its point.
a. Hyosung’s Freight Expense Data
ABB asserts that Hyosung increased the price for a second selected transaction based on a claim for increased freight expenses, which included a markup beyond the actual freight expense (i.e., profit). PL’s MJAR at 23. ABB contends that, as a result, “Commerce’s net price calculations are consistently overstated,’’ id. at 24, and that Commerce should havе capped Hyosung’s freight revenue at the amount of the actual expense. Id. at 24, 30-34 (arguing that Commerce has a policy of capping revenues included in gross unit price at the level of expenses actually incurred, as evidenced in Certain Pasta from Italy, 78 Fed. Reg. 48, 146 (Dep’t. Commerce Aug 7, 2013) (prelim, results of antidumping duty admin, review; 2011-2012) and Prelim. Results in the 2011/2012 Admin. Review on Certain Pasta from Italy: Sales Analysis Mem. for the Prelim. Results—the Rummo Group (Dep’t Commerce July, 30, 2013), ECF No. 81).
Defendant responds that ABB mistakenly assumed freight revenue was allocated evenly across several units the sales of which were reported separately in Hyo-sung’s database when, in fact, Hyosung correctly had allocated a greater amount of revenue to one of the units.
The Cоurt first notes that Commerce identified this second selected transaction as one of the overlapping sales for which it gathered actual data during the POR (and for which Commerce had originally received estimated data during the LTFV investigation). See I & D Mem. at 34; see also Hyosung July 2 SQR at S-20 — S-21, CJA, Doc. 18; PJA, Doc. 18.
Responding to ABB’s argument that Commerce should have capped Hyosung’s freight revenue at the amount of the actual expense, Hyosung argues that while Commerce may have a policy of capping freight revenue, it would not apply in the case at bar because, unlike in Certain Pasta from Italy, cited by Plaintiff, Commerce did not request and Hyosung did not attempt to break out any freight or other charges included in its gross unit price. Conf. Hyo-sung’s Resp. in Opp’n to PI. ABB Inc.’s R. 56.2 Mot. for J. on the Agency R. (“Hyo-
Having reviewed the record compiled by Commerce, the Court finds that Commerce’s acceptance of the reported gross unit price and its use of the freight expense was based on substantial evidence. Commerce did not require Hyosung to report separately the freight revenue. Based on the terms of sale of this second selected transaction, Commerce reasonably treated freight revenue as included in the gross unit price and did not cap it. For the reasons discussed, the Court finds that Commerce’s treatment of Hyosung’s freight expense (and revenue) is based on substantial evidence.
b. Hyosung’s Expense Estimates in its Commission Agreements
ABB claims that Hyosung’s net U.S; prices reported to Commerce differed from the net Ú.S. prices Hyosung used to calculate commissions, and that the difference reflected profit on certain services that were not part of the LPT unit and should not have been included in the unit prices reported to Commerce. Pl.’s MJAR at 25. To illustrate its claim, ABB points to a third selected transaction
c. Comparisons of Hyosung’s Data Reported to Commerce and to Another Agency
ABB alleges that Hyosung’s U.S. gross unit prices were inflated as reported to Commerce because there is a difference between the figures reported to Commerce and the figures reported to another agency.
The Court has already addressed and rejected ABB’s broader arguments relating to the differences between the estimated values and actual values reported for overlapping sales. With respect to the differences with data reported to another agency, Commerce reviewed substantiating documentation and concluded that Hyosung had accurately reported and supported its data to Commerce. See Proprietary I & D Mem.—Hyosung at 6 n.27 (citing Hyosung Jan. 13 CQR at Ex. C-13). In addition to rejecting ABB’s general argument that ■ the ocean freight amounts should match, Commerce ‘ requested and reviewed data for certain of the identified transactions
iii. Hyosung’s Installation Expenses
ABB argues that Hyosung’s final dumping margin is inaccurate because
ABB relies on 19 C.F.R. § 351.410(c) to argue that installation expenses are necessarily direct because they bear a direct relationship to particular sales and that, Hyosung’s accounting practices notwithstanding, Commerce’s decision to accept Hyosung’s expenses as reported is not supported by law. See PL’s Reply at 10-12 (citing 19 C.F.R. § 351.410(c)). The regulation referenced by ABB simply provides the definition of a “direct selling expense.”
The Court finds that Commerce’s decision to allocate Hyosung’s installation expenses as reported is supported by substantial evidence and in accоrdance with the law. Commerce examined ABB’s claim in detail during the administrative proceeding and Hyosung responded to multiple questions regarding the tracking of its installation expenses. See e.g. Hyosung Jan. 13 CQR; see also Hyosung Apr. 10 SQR. In its questionnaire responses, Hyo-sung explained that the different reporting of expenses was attributable to Hyosung’s business accounting practices. Hyosung Korea tracked all installation expenses by project; however, Hyosung’s U.S. affiliate,
Commerce’s decision to accept Hyo-sung’s installation expenses as reported also is in accordance with the law. While the regulations define direct expenses as those which bear a direct relationship to a particular sale, the statute also directs Commerce to calculate costs on the basis of the records of the producer or , exporter of the merchandise. See 19 U.S.C. § 1677b(f)(l). Commerce reasonably exercised its discretion to accept Hyosung’s installation expenses as reported and Hyo-sung’s explanation for the аccounting inconsistency for the purpose of this first administrative review, while Commerce also put Hyosung on notice that it will require consistent reporting of these expenses in future reviews.
B. Commerce’s Decision to not Utilize Facts Otherwise Available with respect to Hyosung
ABB argues that Commerce should have utilized facts available to fill gaps or reconcile differences in Hyosung’s record data. See PL’s MJAR at 33-36. Section 1677e of Title 19 provides that Commerce may use “facts otherwise available” in reaching the applicable determination if necessary information is not on the record or an interested party withholds information that has been requested, fails to provide such information in a timely manner, significantly impedes the proceeding, or provides information that cannot be verified. 19 U.S.C. § 1677e(a);see also 19 C.F.R. § 351.308.
ABB argues that Hyosung’s data is, unreliable and that Commerce should have applied facts otherwise available to arrive at the most accurate dumping margin. See Pl.’s MJAR at 33-36. However, as discussed above, Commerce reviewed ABB’s claims during the administrative proceed
II. Hyundai’s Final Dumping Margin/Hyundai’s Reported Prices and Selling Expenses
ABB argues that Hyundai’s reported data on prices and selling expenses is unreliable and that Commerce has a duty to calculate accurate margins and protect the integrity of its own proceeding.
A. Differences in Data Reported to Commerce and Another Agency
ABB argues that there were differences between the data Hyundai reported to Commerce and another agency which should have led Commerce to deem the data generally unreliable and Commerce should instead have used facts available or AFA to calculate Hyundai’s dumping margin. See generally Pl.’s MJAR at 36-47. ABB also alleges that a series of representations Hyundai made to the other agency should have spurred Commerce to find Hyundai’s data unreliable
The Court is mindful that while Commerce has a responsibility to ensure the integrity of its own proceedings and to ensure that the data it uses in its margin calculations is accurate and supported by the record, this obligation does not extend to ensuring the accuracy of data or information that a respondent may rеport to another agency. It is clear from the record that, particularly on the issue of differences between data reported to Commerce and to the other agency, Hyundai fully participated in the review by responding to numerous questionnaires and supplemental questionnaires and by providing supporting documentation. See Proprietary I & D Mem.—Hyundai at 5, 17.
On the limited question of whether Commerce should have used AFA due to differences in reporting to Commerce versus another agency, the Court is not persuaded by ABB’s argument. This court has previously found that the use of facts available or AFA is warranted when an interested party “failed to accurately respond” to Commerce’s questions and subsequently “fail[ed] to credibly explain the inconsistencies” identified by it in the course of the administrative review, leading Commerce to “reasonably infer” that the party “purposefully withheld [ ] information to avoid a higher dumping margin.” Shanghai Taoen Int’l Trading Co. v. United States,
As to Plaintiffs claim that discrepancies in expenses reported to Commerce regarding the two selected transactions resulted in an improperly inflated gross unit price, the Court considers whether these claims were exhausted below. “[T]he Court of International Trade shall, where appropriate, reqúire the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). Exhaustion of administrative" remedies is a doctrine that holds “that no one is entitled to judicial relief for a' supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Consol Bearings Co. v. United States,
ABB argues that its claim that overstated freight costs for two selected transactions
B. Sequencing
ABB argues that there were other inconsistencies in Hyundai’s reporting, specifically, the sequencing of documents provided by Hyundai to another agency as part of the representations Hyundai made to the other agency related to a third selected transaction.
■ The Court ■ cannot, agree that Commerce’s determination was based on substantial evidence. In the Proprietary Issues and Decision Memo for Hyundai, Commerce acknowledged that'Hyundai did not address the sequencing .of.documents, but concluded that this was an issue that normally would have- been .resolved through supplemental questionnaires. Proprietary I & D Mem. — Hyundai at 12. Such supplemental questionnaires, however, were never sent and, therefore, Hyundai never explained these discrepancies.
In light of Commerce’s apparent recognition that questions remain as to Hyundai’s reported data for the above sales, and no clear statement or explanation from Commerce whether Hyundai’s reported data is sufficient and reliable regardless of this discrepancy, the Court cannot find that Commerce’s decision to rely on these documents without further query or explanation is supported by substantial evidence. Therefore, the Court remands the issue of discrepancies in sequencing for the third selected transaction and the related ■U.S. observations,
C. Commerce’s Decision not to Apply Facts Available or AFA
ABB argues that, based on the alleged discrepancies noted above, Hyundai’s data was sufficiently unreliable to “necessitat[e] application of adverse facts available.” PL’s MJAR at 39. Defendant argues that Commerce’s decision not to apply AFA was a proper exercise оf discretion and not warranted under law. Def.’s Resp. at 31-32. In light of the Court’s conclusion on the sequencing of documents (above), the Court does not reach this issue at this time.
III. Home Market Commission Offset for Hyosung and Hyundai
ABB argues that Commerce erred in granting Hyundai and Hyosung a home market commission offset related to commissions on sales made in the United States. According to ABB, Hyundai and Hyosung incurred these commissions “inside” the United States. Because they were incurred inside the United States, ABB argues these commissions should be deducted from constructed export price (“CEP”) under the statute and Hyundai and Hyosung should not receive a commission offset to normal value (“NV”). PL’s MJAR at 48. Defendant argues that ABB has waived any challenge to1 the commission offsets because it failed to exhaust its administrative remedies before Commerce.
The statute directs Commerce to deduct from the price used to establish CEP “commissions for selling the subject merchandise in the United States,” 19 U.S.C. § 1677a(d)(l)(A), and the- profit allocatеd to such commissions, 19 U.S.C. § 1677a(d)(3). Commerce claims that its practice has been to recognize two types of commissions paid on U.S. sales: (i) commissions incurred inside the United States, for which Commerce deducts the commission expenses from the price used to establish CEP, and (ii) commissions incurred outside the United States, for which Commerce deducts the, commission expenses from the price used to establish CEP and offsets these deductions in the home market. See Def.’s Resp. at 32-33; see also 19 U.S.C. § 1677a(d); 19 U.S.C. § 1677b(7). Commerce may make a “commission' offset” in certain cases when a commission is paid in relationship to the U.S. sale, but not the comparison market sales. See 19 C.F.R. § 351.410(e).
Defendant argues that Commerce made its “methodological decision to provide a home market commission offset in the Preliminary Results.” Def.’s Resp. at 32, 34. Defendant claims that Commerce determined that “Hyosung and Hyundai incurred their commissions outside of the United States and, therefore, that a commission offset was warranted.” Def.’s Resp. at 33 (citing Prelim. Mem.—Hyundai at 13) (emphasis added). However, the Preliminary Analysis Memo for Hyundai cited by Defendant does not support the Defendant’s assertion. In fact, the memo concludes quite the opposite, stating, that “while these [commission and other] expenses were incurred in the United States, we note that the sale was made prior to importation.” Prelim. Mem.—Hyundai at 10,. 13 (emphasis added). Moreover, the cited document is devoid of any reference to a commission offset, whether • it was being granted or denied. Id. at 13. Instead, the document discusses the calculation of the CEP offset, a distinct adjustment, associating it with the difference in the level of trade and omitting any reference to commissions. Id. Therein, Commerce also stated that “we are not including commission, [... ] and other related expenses as “CEP ‘Other’ Expenses.” Id. at 10.
In the margin calculation program accompanying the Second Amended Final Results, Commerce indicates that the field “CEPOTHER” would normally include “Any other CEP (incurred in the U.S.) commissions [... ],” however, Commerce appears ’to have excluded U.S. commissions from this field, suggesting that Commerce treated them as if they were incurred outside the United States. Margin Calculation Program—Sec. Am. Final—Hyundai (June 2015) at 38, ECF No. 82-6; C.R. 581. Similarly, the U.S. commissions field is set to equal the reported commissions (“USCOMM = COMMU”), with the description for this field indicating that “All commissions on EP sales, and those on CEP sales incurred outside of the U.S. [...] Do NOT include commissions on CEP sales incurred in the U.S. here; instead include these in CEPSELL.” Id. Again, it appears that Commerce treated the commissions as having been incurred outside of the United States. Thus, Commerce’s treatment of U.S. commissions in the margin calculation program is inconsistent with its characterization of those com
While the purpose of the exhaustion doctrine is to “allow[ ] the agency to apply its expertise, rectify administrative mistakes, and compile a record adequate for judicial review — advаncing the twin purposes ■ of protecting administrative agency authority and promoting judicial efficiency,” - Carpenter Tech. Corp. v. United States,
In this case, ABB did not exhaust its administrative remedies. ABB’s administrative case and rebuttal briefs do not make arguments about the treatment of commissions or whether a commission offset was granted, and ABB does not provide any citations in its briefing to this Court that would show that ABB made this argument to Commerce before, the issuance of the Final Results. Despite Commerce’s general policy with respect to the treatment of U.S. commissions incurred inside and outside the United States, the Preliminary Analysis Memo indicates that Commerce was diverging from that, policy. See Prelim, Mem.—Hyundai at 10, 13. Nevertheless, Commerce did not discuss the implications of this divergence on whether it would provide a commission offset in this case. The Court finds that it is not appropriate to require ABB to have exhausted its administrative remedies in this case when Commerce failed to adequately address its treatment of commission offsets in the preliminary determination,.'Such > notice was necessary-in this particular case because Commerce indicated that it was not treating the U.S. commissions in accordance with its normal practiсe, but' it did not explain the extent of its different treatment.
The Court will remand this issue to Commerce for further clarification. Upon remand, Commerce is to explain its treatment of the respondents’ U.S. commissions, the record basis for such treatment, whether such U.S. commissions result in the granting of commission offsets, and the legal and factual basis for the granting or denial of the commission offsets.
CONCLUSION
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Determination is remanded to Commerce to further address the sequencing of certain of Hyundai’s documents in the record, as set forth in Discussion Section II.B' above; and it is further
ORDERED that the Court defers ruling on the issue of whether Commerce should have applied facts available or AFA in calculating Hyundai’s dumping margin with respect to the discrepancies in the sequencing of Hyundai’s documents alleged by ABB during the administrative proceeding; and it is further
ORDERED that Commerce’s Final Determination is remanded to Commerce to further explain its treatment of the respondents’ U.S. commissions, the record basis for such treatment, whether such U.S. commissions result in the granting of commission offsets, and the legal and factual basis for the granting or denial of the commission offsets,, as set. forth in Discussion Section III above; and it is further
ORDERED that the agency must file an index of any new administrative record documents on or before January 19, 2017; and it is further
ORDERED that pаrties may file and serve comments in opposition to the remand determination on or before February 6,2017; and it is further
ORDERED that defendant and other parties supporting the remand determination may file and serve responsive comments in support of the remand determination on or before March 8, 2017; and it is further
ORDERED that parties must file a joint appendix of any record documents cited in their comments on or before March 15, 2017; and it is further'
ORDERED that any comments or responsive comments must not exceed 2500 words.
Notes
. The administrative record is divided into a Public Administrative Record ("P.R."), ECF
. See also Proprietary Arguments from the Issues and Decision Mem. of the Admin. Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea; 2012-2013: Hyundai Heavy Industries (HHI) and Hyundai Corp. U.S.A. (Hyundai USA) (collectively, Hyundai) (Dep't Commerce Mar. 23, 2015) ("Proprietary I & D Mem. — Hyundai"), CJA, Doc. 36; PJA, Doc, 36; C.R. 546; P.R. 270; Proprietary Arguments from the Issues and Decision Mem. for the Final results of the Antidumping Duty Admin. Review of Large Power Transformers (LPTs) from the Republic of Korea (Korea):— Hyosung Corp. (Hyosung) (Dep’t Commerce Mar. 23, 2015) (“Proprietary I & D Mem.— Hyosung"), CJA, Doc. 37; PJA, Doc. 37; C.R. 525; P.R. 263.
.See also Analysis of Data Submitted by Hyo-sung Corp. in the Prelim. Results of the 2012-2013 Admin. Review of the Antidumping Duty Order on Large Power Transformers from the Republic of Korea (Dep’t Commerce Sept. 18, 2014) (“Prelim. Mem. — Hyosung"), ECF No. 82-3; CJA, Doc. 26; PJA, Doc. 26; C.R. 423; P.R. 209 (proprietary prelim, mem. for Hyo-sung accompanying the prelim, results); Analysis of Data Submitted by Hyundai Heavy Indus. Co. Ltd., Corp. in the Prelim. Results of the 2012-2013 Admin. Review of the Anti-dumping Duty Order on Large Power Transformers from the Republic of Korea (Dep’t Commerce Sept. 18, 2014) (“Prelim. Mem.— Hyundai”), ECF No. 82-4; CJA, Doc. 56; PJA, Doc. 56; C.R. 430; P.R. 211 (proprietary prelim, mem. for Hyundai accompanying the prelim, results).
. The First Amended Final Results were published on May 6, 2015, prior to the issuance of this order, as a result of an inadvertent error by Defendant, United States. See Def.’s Mot. for Leave, Out of Time, for the Dep’t of Commerce to Consider Ministerial Error Allegations and, if Necessary, to Publish Am. Final Results, ECF No. 23 at 2-3.
. All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, 2012 edition.
. 19 U.S.C. § 1677e(a) provides that Commerce may use "facts otherwise available” in reaching the applicable determination if necessary information is not on the record or an interested party withholds information that has been requested, fails to .provide such information in a timely manner, significantly impedes the proceeding, or provides information that cannot be verified. Subsection (b) further provides that Commerce may usе an adverse inference in selecting from among the facts otherwise available if the interested par- . ty failed to cooperate by not acting to the best of its ability. See also 19 C.F.R. § 351,308.
. During the LFTV Investigation Commerce had “instructed Hyosung to report sales and expense data for POI sales that may not have shipped as of December 31, 2011” even if actual costs and expenses had yet to be finalized. I &D Mem. at 15. At that time, Hyosung indicated that variations’would exist between the estimated and actual data, and Commerce
. This transaction was identified in Hyosung’s database ,as SEQU [[]]. Pl.’s-MIAR at 19.
. ABB specifically takes issue with Hyosung’s claims that the change in price is attributable to [[]]. Pl.’s MJAR at 19-22; Pi’s Reply at 3-5.
. This second selected transaction is identified in Hyosung’s sales database as SEQU [[]]. Pl.'s MJAR at 22.
. Reported to [[]] or in Hyosung's [[]]. See Pl.’s MJAR at 30-31.
., Defendant also argues that ABB does not use Hyosung’s reported revenue in its analysis, but rather, relies on a mistaken estimate of the freight revenue that Hyosung provided in one of its questionnaire responses. Def.'s Resp. at 17-18. Further, ABB used a date-of-sale exchange rate to convеrt Hyosung’s reported figure to U.S. dollars, when the data Hyosung reported to Commerce was itself a converted figured because the freight provider had billed Hyosung in U.S. dollars and Hyosung had not been requested to provide (nor had it provided) the exchange rate it had used to convert the figure into Korean currency before reporting it to Commerce. Id. Thus, ABB’s exchange rate adjustments based were upon faulty assumptions.
. Parties filed multiple excerpts from the Hyosung July 2 SQR in the CJA and PJA (as well as in separate docket filings as ECF Nos. 82-22 — 82-24, 82-26 — 82-28). Accordingly, where the Court short cites to the Hyosung July 2 SQR it will continue to include the relevant ECF or CJA/PJA numbers.
. The sale in question was finalized as "[[]]." Hyosung July 3 SQR, Ex. S-ll at JA 400460, CJA, Doc. 60; PJA, Doc. 60.
. This third selected transaction is identified in Hyosung’s sales database as SEQU [[]]. See Pl.’s MJAR at 25.
. Defendant also argues that ABB’s claim is waived for failure to exhaust administrative remedies. Def.'s Resp. at 19. ABB replies that its.claim regarding the third selected transaction is simply a different formulation of the same question: whether expenses deducted from gross unit price were the same as those used in the build-up of gross unit price. Pl.’s Reply at 9 n.l. The Court finds that ABB timely raised the issue in the administrative proceeding as demonstrated by Defendant's citations to the Issues and Decision Memo in support of its own position that Commerce's
. The agency in question is [[]]. Pl.’s MJAR at 27-30.
. Commerce examined this issue with regard to SEQU [[ ]], Proprietary I & D Mem.—Hyosung at 4-6, and ABB specifically calls out SEQU [[]] as illustrative examples, Pl.’s MJAR at 29-30. Here ABB alleges that Hyo-
. These include SEQU [[]]. Commerce identifies these specific sales as examples where Hyosung provided source documentation demonstrating the accuracy of its reporting of ocean freight expenses [[]]". See Proprietary I & D Mem.—Hyosung at 5-6.
. Commerce reviewed corroborating documentation relating to SEQU [[ ]] and concluded that Hyosung had "accurately reported and substantiated its reported ocean freight amounts" and that specifically for SEQU [[]] "Hyosung provided complete source documentation supporting its reported ocean freight expenses for that sale.” Proprietary I & D Mem.—Hyosung at 6 & n. 27 (citing Hyosung Jan. 13 SQR at Ex. C-13) (emphasis omitted).
.According to Commerce,
while we are accepting Hyosung’s reporting of certain expenses for purposes of these preliminary results, going forward, the Department expects Hyosung to be consistent with regard to its reporting of installation and warranty expenses between the home and U.S. markets. Additionally, the Department expects Hyosung to report expenses related to the movement of existing LPTs consistently, and on a transaction-specific basis, in both the home and U.S. markets going forward.
Prelim. Mem. — Hyosung at 8.
. Pursuant to 19 C.F.R. § 351.410(c), "Direct selling expenses’ are expenses, such as commissions, credit expenses, guarantees, and warranties, that result from, and bear a direct relationship to, the particular sale in quеstion.”
. Pursuant to 19 U.S.C. § 1677b(f)(l)(A), “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 ... and reasonably reflect the costs associated with the production and sale of the merchandise.”
.According to Hyosung,
based on agreements with the U,S. customer, HICO America is sometimes responsible for the installation of LPTs at the U.S. customer’s designated location. [[]] HICO America [[]]. Hyosung reports the installation costs it incurred on a transaction-specific basis.
Hyosung Jan. 13 CQR at C-38, JA 100713. However, in some cases,
At the customer’s request, HICO America will dispatch [[]] Although HICO America incurs costs for the salary and travel expenses of the [[ ]] of the installation process, HICO America does not track these expenses by project number in its accounting records.
See Hyosung Apr. 10 SQR at 41, Consequently, these U.S. installation expenses were reported as indirect selling expenses.
. Commerce also rejected ABB’s reliance on a comparison of the reported installation expenses with the estimates used to negotiate Hyosung’s commission payments. As discussed above, Commerce reasonably relied on the actual expenses as reported and did not require a reconciliatiоn with estimated expenses used to negotiate commission agreements. I & D Mem. at 23.
. Commerce found that Hyosung accurately reported and substantiated its reported installation expenses through "source documentation demonstrating the accuracy of its reporting of installation expenses 'to the Department.” I & D Mem. at 23 & n.105 (citing Hyosung Jan. 13 CQR at Ex. C-24; Hyosung Apr. 10 SQR at S-29).
. In addition to making an overarching argument, ABB identifies two selected.transactions to illustrate its claim. These are SEQU [[]] and [[]] respectively. See, e.g., PL’s MJAR at 37.
. See supra noté 27.
.The agency in question is [[]]. ABB relies on a third selected transaction, SEQU [[ 33, as . an illustration, but notes that similar sequencing issues exist for SEQU [[]], Pl.'s MJAR at 46..
. ABB argues that Hyundai [[]] Pl.’s MJAR at 38.
. Hyundai responded to over 11 questionnaires and supplemental questionnaires. Proprietary I & D Mem. — Hyundai at 17.
. To illustrate its overarching argument, ABB points to two selected transactions and argues that, for these transactions, Hyundai reported higher [[]] than to Commerce. Pl.’s MJAR at 44. In its brief to this Court, ABB argues that for one selected transaction, SEQU [[ ]], Hyundai gave the other agency a commercial invoice for [[ ]] than the amount it reported to Commerce. Id. at 44. Defendant-Intervenor Hyundai explains to the Court that this difference is attributable to the fact that Commerce "required Hyundai to report the amount of the expense that it incurred from the third-party vendors” and not the amount that HHI charged to Hyundai. Conf. Hyundai Heavy Industries Co., Ltd. and Hyundai Corp. USA's Resp. to Pl.’s Mem. in
ABB makes a similar allegation with respect to a second selected transaction, SEQU [[]], that Hyundai reported [[]] import-related charges for [[ ]] to [[ ]] than to Commerce, but ABB does not further develop this argument before the Court and neither Defendant nor Defendant-Intervenor Hyundai provide a detailed response. See Pl.’s MJAR at 43-44; Def.’s Resp. at 27-30; see also Hyundai Resp. at 12 (noting, as with SEQU [[]], that ABB compares third-party invoices rather than direct expense documentation Hyundai provided to Commerce and that the alleged differences were resolved by the prior disclosures). The Court again looks to its standard of review for Commerce final determinations. Here, Plaintiffs allegations continue to rest on differences that are rooted in Hyundai’s reporting to another agency, that have been addressed by Commerce in the Final Results and by this Court, and that do not rise above the level of allegations lacking substantiating documentation. ABB does not offer any further evidence to the Court supporting its claim that Hyundai’s data in this regard is unreliable and does not provide an argument for why an invoice between Hyundai and HHI (two affiliated parties) should be given more weight in contrast to the third party invoice that represents the actual [[ ]] expense paid by Hyundai to the [[ ]]. Thus, the Court is satisfied that Commerce’s conclusion that Hyundai sufficiently substantiated its reporting to the Department is based on substantial evidence on the record.
. See 19 C.F.R. § 351.309(c)(2) ("The case brief must present all arguments that continue in the submitter’s view to be relevant to the Secretary’s final determination or final results, including any arguments presented before the date of publication of the preliminary determination or preliminary results.”); see also 19 C.F.R. § 351.309(d)(2) ("The rebuttal brief may respond only to arguments raised in case briefs and should identify the ' arguments to which it is responding.”)
. Parties are able to raise ministerial errors with the Department if such errors appear in the Final Results. See 19 C.F.R. 351.224(e).
. There is no exhaustive list of exceptions. Previously enumerated exceptions include futility, an intervening court decision such that the new interpretation would impact the agency’s actions, pure question of law, or when plaintiff had no reason to believe the agency would not follow established precedent. See Luoyang Bearing Factory v. United States,
. SEQU [[]] and [[]].
. ABB argues in its case brief that "[flor SEQU [[]] for example, the [[]] Any claim that [[ ]] does not stand up to scrutiny” and further that "[[]]” ABB Case Br. at 12-13.
. The third selected transaction for Hyundai is SEQU [[ ]]. PL's MJAR at 40.
. ABB alleges that documents provided by Hyundai to PL’s MJAR at 46.
. Specifically, SEQU [[]]. PL’s MJAR at 46.
. Commerce noted that "Hyundai failed to answer Petitioner’s concerns with respect to the [[ ]]” but that "this is an issue that would normally be addressed in supplemental .questionnaires, and for the purposes of the final results, the Department is unable [to] question the [[]]” Proprietary I & D Mem.—Hyundai at 12.
. Commerce noted that Hyundai does not address the [[]],’’ but concluded that "the Department did not ask about this discrepancy in a supplemental questionnaire” even though "Petitioner raised concerns of a similar nature with respect to [[ ]] other observations.” Proprietary I & D Mem.—Hyundai at 15.
. In sections addressing ABB’s arguments that Commerce should apply AFA, Commerce noted thát the criteria for an application of AFA had not been met because Hyundai had cooperated to the best of its ability and provided satisfactory explanations to Commerce's questions, including by responding to questionnaires. See I & D Mem. at 42-43, 53-54; Proprietary I & D Mem.-Hyundai at 15-17.
. SEQU[[]].
. Hyundai agrees that ABB failed to raise the commission offset issue after the Prelimi-naty Results and that Commerce’s granting of the commission offset is not a ministerial error. Hyundai asserts that granting the commission offset was specifically intended and referenced in the Preliminary Analysis Memo for Hyundai. Hyundai Resp. at 14-16; see also Prelim. Mem.—Hyosung at 13.