Case Information
*1 Slip Op. 05-105
UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: RICHARD W. GOLDBERG, SENIOR JUDGE HYUNDAI ELECTRONICS INDUSTRIES
CO., LTD. and HYUNDAI
ELECTRONICS AMERICA, INC.,
Plaintiffs,
v. PUBLIC VERSION UNITED STATES, Cons. Court No. 00-01-00027
Defendant,
and
MICRON TECHNOLOGY, INC.,
Defendant-
Intеrvenor. [Commerce antidumping duty remand determination sustained in part and remanded in part.]
Dated: August 25, 2005 Willkie, Farr & Gallagher LLP (James P. Durling and Daniel L. Porter) for Plaintiffs Hyundai Electronics Industries Co., Ltd. and Hyundai Electronics America, Inc.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Kenneth S. Kessler); Patrick V. Gallagher, Jr., Of Counsel, Office of the Chief Counsel for Import Administration, United States Department of Commerce, for Defendant United States.
King & Spalding LLP (Gilbert B. Kaplan and Daniel L.
Schneiderman) for Defendant-Intervenor Micron Technology, Inc.
OPINION
GOLDBERG, Senior Judge
: This case is before the Court following
remand to the United States Department of Commerce (“Commerce”).
In Hyundai Electronics Industries Co. v. United States, 28 CIT
__,
In Hyundai I, the Court found that Commerce was justified in
applying only partial adverse facts available (“AFA”) against LG
Semicon in determining its dumping margin. See Hyundai I, 28 CIT
at __,
The Court remanded the matter to Commerce with instructions
to: (1) recalculate LG Semicon’s dumping margin using the data
provided by LG Semicon for its Mexican sales, and applying AFA
only for LG Semicon’s sales to the customer’s German subsidiary;
(2) provide additional information specifically pointing to the
effect of non-subject merchandise R&D on the R&D for the subject
merchandise, or in the alternative, recalculate R&D costs on the
most product-specific basis possible; (3) provide specific
evidence explaining how Plaintiffs’ actual R&D costs for the
review period are not reasonably accounted for in their amortized
R&D costs, or in the alternative, accept Plaintiffs’ amortization
methodology; and (4) present substantial evidence demonstrating
how R&D costs for Plaintiffs’ long-term projects affect their
current projects for the period of review, or in the alternative,
accept Plaintiffs’ deferral methodology. See id. at __, __, __,
__,
Commerce duly complied with the Court’s order. Commerce issued draft Redetermination Results (Aug. 12, 2004) (“Draft Remand Results”) and then, after receiving comments from Plaintiffs and Defendant-Intervenor Micron Technology, Inc. (“Micron”), the Final Results of Redetermination Pursuant to Court Remand (Aug. 31, 2004) (“Remand Results”). In the Remand Results, Commerce recalculated LG Semicon’s dumping margin and applied a new rate of 89.10 percent, which Commerce concluded was “the highest non-aberrational margin calculated for any U.S. transaction for LG [Semicon] in the period of review[.]” Remand Results at 4. Commerce also complied with the Court’s request for more information regarding its theory of cross-fertilization by providing scientific articles, new expert testimony, and the titles of some of Hyundai’s development projects. Id. at 4-5, 11-14. In addition, although it expressed disagreement with the Court’s findings regarding amortization in Hyundai I, Commerce stated that it could not provide specific evidence showing how amortization did not reasonably account for Plaintiffs’ actual R&D costs incurred during the period of review. Id. at 5. Thus, Commercе recalculated Plaintiffs’ R&D costs to allow for amortization. Id. Finally, Commerce continued to find that Plaintiffs’ deferred R&D costs should be expensed in the period incurred because Plaintiffs did not offer any reasonable evidence demonstrating how their deferred costs would have discernible future benefits. Id. at 6, 22.
Plaintiffs submitted Comments on the Final Results of Redetermination (“Pls.’ Br.”), and Micron submitted a Memorandum Addressing the Final Results of Redetermination Pursuant to Court Remand (“Def.-Intvr.’s Br.”). Commerce then submitted its Response to Plaintiffs’ and Defendant-Intervenor’s Comments. Plaintiffs subsequently submitted Response Comments on the Final Results of Redetermination, and Micron submitted a Response Brief Addressing Plaintiffs’ Comments.
The Court has jurisdiction under 28 U.S.C. § 1581(c). The Court must uphold Commerce’s determination if it is supported by substаntial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). After due consideration of the parties’ submissions, the administrative record, and all other papers had herein, and for the reasons that follow, the Court sustains in part and reverses and remands in part.
I. DISCUSSION
A. Commerce’s Decision to Apply a Margin of 89.10 Percent as
Partial AFA Is Supported by Substantial Evidence and Otherwise in Accordance with Law.
In Hyundai I, the Court held that Commerce was justified in
applying partial AFA to LG Semicon’s German sales, but not in
applying total AFA to LG Semicon’s entire U.S. sales database.
See Hyundai I,
1. The 89.10 Percent Rate Is Non-Aberrational . Plaintiffs argue that Commerce failed to explain why the 89.10 percent rate is non-aberrational, while the other margins above it are aberrational. Pls.’ Br. at 3. According to Plaintiffs, Commerce’s discretion in applying AFA is not unlimited; rather, Commerce must demonstrate why a particular AFA rate is indicative of a respondent’s selling practices and rationally related to its sales. Id. Here, Plaintiffs contend, Commerce failed to demonstrate in the Remand Results that the 89.10 percent rate is indicative of LG Semicon’s sales, and therefore non-aberrational. Id.
The Court disagrees for two reasons. First, the Court finds that the 89.10 percent rate is inherently indicative of LG Semicon’s selling practices because it was derived from LG Semicon’s “own sales data from the instant review segment.” Remand Results at 8. When Commerce utilizes a respondent’s own sales data, it is afforded broad discretion in the selection of the adverse rate, and this is true even if the selected rate is reflective of only a small proportion of the respondent’s sales. See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1339 (Fed. Cir. 2002). Thus, although the 89.10 percent rate chosen by Commerce may be higher than other calculated margins, this fact alone does not render the AFA rate aberrational or unrelated to LG Semicon’s sales practices.
Second, the Court finds that Commerce did adequately explain in the Remand Results why the 89.10 percent rate is non- aberrational: “[T]he margin selected falls in a range of margins for a large portion of LG [Semicon]’s review period transactions that decrease steadily by small amounts.” Remand Results at 8. The record evidence clearly shows that the selected 89.10 рercent margin is within a grouping of sales whose margins differ by very small amounts (e.g., 89.10 percent, [ ] percent, [ ] percent, and [ ] percent), while several sales margins ([ ]) above 89.10 percent range from [ ] percent to 223 percent and do not form a cluster . See Confidential Administrative Record (“Conf. Admin. R.”) at Ex. 8 (SAS Margin Program Log and Output dated Aug. 28, 2004) at 54. In contrast to this record evidence supporting Commerce’s determination, Plaintiffs did not provide any evidence showing how the 89.10 percent rate is aberrational, or otherwise unreflective of LG Semicon’s selling practices. As a result, the Court finds that the 89.10 percent rate selected by Commerce on remand is non-aberrational. The 89.10 Percent Rate Is Not Unduly Punitive .
2. Plaintiffs also argue that the 89.10 percent rate is unduly punitive and excessive. Pls.’ Br. at 3. Plaintiffs assert that this new rate is sixteen times greater than Hyundai’s previous dumping margin and almost eighteen times greater than LG Semicon’s previous margin. See id. at 4. Additionally, Plaintiffs note that while LG Semicon’s weighted-average dumping margin was 10.44 percent under total AFA, this margin rose to 15.87 percent upon Commerce’s application of only partial AFA to LG Semicon’s German sales. See id. at 3-4. Concluding that LG Semicon has been made worse off with partial AFA than with total AFA, Plaintiffs argue that Commerce has failed to create an incentive for foreign companies to cooperate in administrative reviews, and that Congress’s intention to strike “a balance between deterrence for non-compliance and assuring а reasonable margin” has not been achieved. Id. at 4 (quoting F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1032 (Fed. Cir. 2000)).
The Court, however, finds that the 89.10 percent rate
selected by Commerce upon remand is neither unduly punitive nor
excessive. First, Commerce acts within its discretion and does
not “overreach reality” so long as the “selected . . . dumping
margin [is] within the range of [the respondent’s] actual sales
data[.]” See Ta Chen,
Second, the 89.10 percent rate is not rendered unduly punitive simply because it is higher than the previous rate calculated using total AFA. As the Court has already noted, new margins ranging as high as 223 percent became available for LG Semicon’s sales practices after the Court ordered the recalculation in Hyundai I. See Remand Results at 4. Since 19 U.S.C. § 1677e(b) does not prohibit Commerce from including such new sales in its remand calculations, Commerce was free to select an AFA rate incorporating these new margins, even though that meant assigning a higher rate to LG Semicon under partial AFA than under total AFA.
Finally, the Court rejects Plaintiffs’ assertion that
Commerce failed to create an incentivе to cooperate in
administrative reviews, and also failed to strike a balance
between deterrence and assuring a reasonable margin. If LG
Semicon had correctly reported certain sales it knew or should
have known were destined for the United States, Commerce would
not have applied AFA at all, and the mere fact that LG Semicon
received a higher rate on remand does not diminish its incentive
to cooperate more fully in future reviews in an effort to avoid
the application of AFA. In addition, the issue of whether
Commerce properly balanced deterrence with providing a reasonable
margin is inapposite, because the Court has already determined
that Commerce did provide LG Semicon with a reasonable margin.
The 89.10 percent rate is a non-aberrational rate that was
derived from LG Semicon’s own sales data. Consequently, the
margin was within Commerce’s discretion to select and must be
considered reasonable. See Ta Chen,
Accordingly, Commerce’s decision on remand to apply an AFA rate of 89.10 percent is supported by substantial evidence and otherwise in accordance with law.
B. Commerce’s Treatment of Plaintiffs’ R&D Costs Is Sustained
in Part and Reversed and Remanded in Part.
In Hyundai I, the Court found that Commerce did not offer
substantial evidence in support of its cross-fertilization
theory. Hyundai I,
On remand, Commerce (1) provided additional factual information in support of its cross-fertilization theory; (2) recalculated Plaintiffs’ R&D costs to allow for amortization; and (3) continued to find that Plaintiffs’ R&D costs should be expensed in the period incurred, instead of being deferred. See Remand Results at 4-6. Plaintiffs challenge Commerce’s findings with respect to cross-fertilization and deferral of R&D expenses, while Micron challenges Commerce’s finding with respect to amortization of R&D expenses.
1. Commerce’s Decision Not to Calculate Costs on a Product-Specific Basis Is Not Suрported by Substantial Evidence.
In Hyundai I, the Court rejected Commerce’s suggestion that
“intrinsic benefits . . . occur between R&D expenditures on non-
subject merchandise and production of subject merchandise,” and
that “R&D costs for non-subject merchandise [therefore] should be
included in the cost of production analyses.” Hyundai I, 28 CIT
at __,
On remand, Commerce complied with the Court’s request for additional information by providing three exhibits that were originally submitted for the record of the fifth administrative review by Micron. See Def.-Intvr.’s Br. at Ex. 2 (Micron’s Submission of Factual Information dated Dec. 18, 1998) at Doc. 1(a) (Memorandum from Dr. Murzy Jhabvala dated Sept. 8, 1997) (“Jhabvala Letter 1”); id. at Doc. 1(b) (World Technology Evaluation Center Report on the Korean Electronics Industry dated Oct. 1, 1997) (“WTEC Report”); id. at Doc. 2 (Memorandum to the
File from Dr. Murzy Jhabvala dated Dec. 18, 1997) (“Jhabvala Letter 2”); id. at Doc. 3 (Lеtter from Eugene Cloud dated Oct. 15, 1997) (“Cloud Letter”); id. at Doc. 3(a) (Attachment A Articles dated Sept.-Oct. 1997) (“Attachment A Articles”); id. at Doc. 3(b) (Attachment B Articles dated Oct. 1997) (“Attachment B Articles”). Commerce also presented the names of certain research projects that were conducted by Hyundai in non-memory IC labs but featured the word “DRAM” in their titles. See Remand Results at 14.
Plaintiffs maintain that the additional factual information supplied by Commerce suffers from the same deficiencies as the information on which Commerce initially relied – namely, the new evidence does not relate to non-subject merchandise, and it does not specifically address Plaintiffs’ operations. Pls.’ Br. at 5. Moreover, Plaintiffs contend, simply because the word “DRAM” is in a projеct does not provide substantial evidence that the R&D actually relates to DRAM development. Id. at 7.
The Court agrees that the additional information provided by
Commerce on remand does not constitute substantial evidence of
cross-fertilization between DRAMs and non-DRAM merchandise with
respect to R&D costs in this case. First, as in Hyundai I, the
new evidence on which Commerce relies does not demonstrate
“direct contact or experience with Plaintiffs’ practices during
this review[,]” but rather concerns “different products and
different parties to that of the current review[.]” Hyundai I,
Second, Commerce’s additional information fails to
“specifically point[ ] to the effect of non-subject merchandise
R&D on the R&D for the subject merchandise[.]” Hyundai I, 28 CIT
at ,
Finally, Commerce’s apparent reliance on the names of
Hyundai’s R&D projects is misplaced. Aсcording to Commerce, the
names of three research projects “[c]learly [show] Hyundai was
conducting [memory] research during the POR in its [non-memory]
IC Lab[, which] clearly indicate[s] that in the semiconductor
industry, there is enough similarity among semiconductor products
and process technology objectives, that advances from R&D for one
type of semiconductor product can benefit other semiconductor
products.” Remand Results at 14. However, as the Court has
previously explained, the simple recitation of R&D project titles
does not constitute substantial evidence of cross-fertilization.
Hynix Semiconductor, Inc. v. United States,
Accordingly, the Court finds that Commerce failed to provide substantial evidence to support its theory of cross- fertilization. The Court therefore remands this issue to Commerce with instructions to recalculate Plaintiffs’ R&D costs on the most product-specific basis possible.
2. Commerce’s Decision to Accept Plaintiffs’ Amortization of R&D Expenses Is Supported by Substantial Evidence and Otherwise in Accordance with Law.
In disapproving Commerce’s initial refusal to accept
Plaintiffs’ amortization of R&D costs, the Court in Hyundai I
rejected Commerce’s finding that “Plaintiffs’ practice of
‘continually changing’ [accounting] methodologies produces
‘aberrationally high amounts of R&D expense in some years, and
aberrationally low amounts of R&D exрense in other years, that do
not reasonably reflect [production] costs.’” Hyundai I, 28 CIT
at __,
On remand, Commerce stated:
We believe that in the Final Results, we fully explained, and supported with substantial evidence, our positions regarding the amortization of LG [Semicon]’s and Hyundai’s R&D costs. Nevertheless, the Court has found that the information cited by the Department does not constitute substantial evidence supporting this determination. Therefore, although we disagree with the Court’s findings, we have recalculated LG [Semicon]’s and Hyundai’s R&D costs to allow for amortization.
Remand Results at 5.
Micron urges that, although Commerсe conceded it was unable
to comply with the Court’s request that it provide additional
evidence in support of its determination regarding amortization,
Commerce actually did point to such evidence in the Remand
Results.
[7]
See Def.-Intvr.’s Br. at 1. The Court, however, has
carefully reviewed Commerce’s discussion of the amortization
issue in the Remand Results, see Remand Results at 5, 17-19, and
finds that it is noticeably void of any “specific evidence
regarding how Plaintiffs’ actual R&D costs for this period of
review are not reasonably accounted for in its amortized R&D
costs[,]” which is what the Court instructed Commerce to provide
on remand. Hyundai I,
Accordingly, the Court sustains Commerce’s decision to accept Plaintiffs’ amortization of R&D expenses for purposes of calculating the cost of production.
3. Commerce’s Rejection of Plaintiffs’ Deferral of R&D Expenses Is Not Supported by Substantial Evidence.
In Hyundai I, the Court held that Commerce failed to provide
specific evidence demonstrating why Plaintiffs’ deferred R&D
costs should be allocated into the cost of production
calculation. Hyundai I,
On remand, Commerce continues to rely upon general accounting principles in support of its determination that R&D expenditures for long-term projects should be included in the current cost of production calculation. [9] See Remand Results at 5, 22-23. In addition, Commerce faults Plaintiffs for failing to offer any “reasonable evidence to indicate that their deferred [R&D] costs will benefit future periods.” Id. at 6.
In response, Plaintiffs claim they did provide substantial evidence demonstrating that “the future benefits of [DRAM] research are both readily discernible and imminent at the time of the expenditures.” Pls.’ Br. at 12 (citing Supplement to Hyundai’s Appendix of the Administrative Record at CR 42 (Hyundai Cost Verification Exhibit 10 and Report dated June 11, 1999) at Ex. 10(a), 10(c)). Plaintiffs also note that Commerce failed on remand to show even one example of how R&D for long-term projects impacted projects for the current review period. Id. at 9. Finally, Plaintiffs contend that Commerce erroneously shifted its burden of providing additional information on remand to Plaintiffs. Id.
The Court agrees that Commerce failed to provide sрecific
evidence in the Remand Results showing how Plaintiffs’ “R&D costs
that are currently deferred actually affect production and
revenue for this review period.” Hyundai I,
Accordingly, because Commerce entirely failed to comply with the Court’s instructions in Hyundai I to provide specific
evidence showing how deferred R&D costs actually affect production and revenue for the current review period, the Court remands to Commerce with instructions to accept Plaintiffs’ deferral methodology in calculating R&D expenses for the cost of production.
C. Commerce Properly Decided to Correct an Error in the
Calculation of Hyundai’s Entered Value.
After Commerce issued the Draft Remand Results, Micron raised a challenge to Commerce’s calculation of Hyundai’s total entered value. See Conf. Admin. R. at Ex. 2 (Micrоn’s Comments on the Draft Final Results of Redetermination dated Aug. 18, 2004) at 11-13. According to Micron, the margin program used by Commerce to calculate Hyundai’s entered value improperly multiplied quantity and value variables that were stated in inconsistent units of measure, which led to an erroneously low importer-specific assessment rate. See id. at 12. In response, Plaintiffs agreed with Micron that Commerce should address the miscalculation issue, but Plaintiffs further argued that Hyundai’s entered value should also include all of the sales made by Hyundai Electronics America, Inc. (“HEA”) – not just the sales that HEA resold to U.S. customers. See Conf. Admin. R. at Ex. 3 (Hynix’s Rebuttal to Micron’s Comments on the Draft Final Results of Redetermination dated Aug. 23, 2004) at 7-8 (“Pls.’ Draft Reply Br.”). In the Remand Results, Commerce made thе programming changes suggested by Micron, but did not address the issue raised by Plaintiffs. Remand Results at 32.
Plaintiffs now contend that Commerce and Micron were time barred from revisiting the calculation methodology for Hyundai’s entered value. Pls.’ Br. at 15. In addition, Plaintiffs argue that Commerce’s change to the entered value calculation did not involve correcting “a mere clerical error.” Id. at 16. Finally, Plaintiffs assert that if Commerce is permitted to change its calculation of the entered value at all, then it should include all of HEA’s sales transactions in the calculation. Id. at 17- 19 .
1. Commerce Properly Corrected the Ministerial Error in the Calculation of Hyundai’s Entered Value Identified by Micron.
With respect to Plaintiffs’ first issue, the Court finds that although Plaintiffs allege Commerсe and Micron were time barred from recalculating Hyundai’s entered value, in reality it is Plaintiffs who are barred from objecting to the recalculated entered value, because Plaintiffs have reversed their agency position on appeal. After Commerce released the Draft Remand Results, Plaintiffs did not object to Micron’s argument regarding the improper multiplication of the entered value, and in fact “agree[d] that the Department should address this issue.” Pls.’ Draft Reply Br. at 7 (emphasis added). On appeal, Plaintiffs now contend that Commerce and Micron were time barred from addressing the miscalculation at all. See Pls.’ Br. at 15.
The Court has repeatedly held that “a party may not reverse
the position it took beforе the agency and raise contrary
arguments on appeal” because this “den[ies Commerce] the
opportunity to review plaintiffs’ arguments” and “deprive[s] the
other parties of their right to respond to plaintiffs’ position.”
Calabrian Corp. v. United States Int’l Trade Comm’n,
Moreover, even if Plaintiffs were not barred from reversing
their agency position on appeal, their objection to Hyundai’s
recalculated entered value would nonetheless fail on the merits.
First, Commerce “may, with or without a party’s request, correct
errors that it rеasonably regards as ministerial in final
determinations.” Shandong Huarong Gen. Corp. v. United States,
Second, the Court itself has a responsibility to “exercise
its discretion to prevent knowingly affirming a determination
with errors.” Torrington Co. v. United States,
Accordingly, Commerce’s recalculation of Hyundai’s entered value in the Remand Results is sustained.
2. Commerce Properly Refused to Address Plaintiffs’ Challenge to the Calculation Methodology for Hyundai’s Entered Value.
The Court also affirms Commerce’s decision not to address
Plaintiffs’ argument concerning the inclusion of all HEA’s sales
in Hyundai’s entered value. “While Commerce is required to allow
respondents to correct clerical errors discovered late in the
administrative process, clerical errors are distinguished from
substantive errors and do not encompass methodological
modifications.” Tianjin Mach. Imp. & Exp. Corp. v. United
States,
Although Plaintiffs claim that Commerce made an incorrect entered value calculation, Commerce’s decision to use only HEA’s U.S. sales in calculating Hyundai’s entered value was not an “error in addition, subtraction, or other arithmetic function,” did not involve “inaccurate copying [or] duplication,” and was not an “unintentional error.” 19 C.F.R. § 351.224(f). Rather, the decision to exclude HEA’s non-U.S. sales involved many issues of methodology and fact, [11] and Commerce intentionally rejected Plaintiffs’ alternative methodology because “the record does not appear to contain the data necessary to support Hyundai’s claim.” Remand Results at 33. Thus, unlike the miscalculation identified by Micron, Plaintiffs’ challenge does not involve a clerical error, and Commerce therefore properly refused to address this issue in the Remand Results.
II. CONCLUSION
For the aforementioned reasons, the Remand Results are sustained in part and reversed and remanded in part. A separate order will be issued accordingly.
/s/ Richard W. Goldberg Richard W. Goldberg Senior Judge Dated: August 25, 2005
New York, New York
Notes
[1] After the fifth administrative review was completed, respondent Hyundai acquired respondents LG Semicon Co., Ltd. and LG Semicon America, Inc. (collectively “LG Semicon”). In this opinion, Hyundai-as-successor-in-interest-to-LG Semicon is referred to as LG Semicon.
[2] In addition to these holdings relevant to the issues
considered here, the Court in Hyundai I also found that: (1)
Commerce did not violate LG Semicon’s right to a fair and honest
proceeding; (2) Commerce’s calculation of Hyundai’s R&D cost
allocation ratio was reasonable; (3) Hyundai did not provide
sufficient evidence of double counting by Commerce; and (4)
Commerce’s treаtment of Hyundai’s interest earned on severance
deposits was reasonable. See Hyundai I,
[3] Calculated rates ranging as high as 223 percent were actually available for LG Semicon on remand. See Remand Results at 4.
[4] The Attachment A Articles fail to mention either Plaintiffs or the subject merchandise, while the Attachment B Articles only discuss how DRAM technology has been applied to Application Specific Integrated Circuits (“ASICs”) by other firms. See Attachment A Articles at 1-3; Attachment B Articles at 3, 6-7, 9-10. Likewise, the Cloud Letter does not name Plaintiffs once; instead, it was written in response to “letters submitted by Dr. Bruce Wooley on behalf of ISSI and Dr. David Angel on behalf of Samsung.” Cloud Letter at 1.
[5] Furthermore, the WTEC Report does not indicate that Plaintiffs have achieved, or even share, the industry-wide goal of using DRAM technology to increase SRAM capacity. See WTEC Report at 8-9.
[6] The Attachment A Articles deal with copper metallization technology and do not mention DRAMs. See Attachment A Articles at 1-3. The Attachment B Articles merely note that DRAM technology has been introduced into the design of ASICs. See Attachment B Articles at 1-14. There is no specific explanation of how these various advancements directly impact DRAM R&D. See id.
[7] In addition to this argument, the Court notes that
Micron’s Memorandum Addressing the Final Results of
Redetermination Pursuant to Court Remand, which was filed on
September 30, 2004, is largely comprised of arguments regarding
the alleged incompatibility between the Court’s decision in the
instant proceeding аnd the Court’s decision in Micron Technology,
Inc. v. United States,
[8] Conservatism in accounting calls for the recognition of
expenses when incurred if the probability of associated revenue
is remote or uncertain. Hyundai I,
[9] Specifically, Commerce cites to both International Accounting Standard 9 and U.S. GAAP to assert that “R&D should not be deferred because the future economic benefits cannot be quantified and measured with a reasonable degree of certainty.” Remand Results at 22.
[10] In Hyundai I, Commerce claimed that Plaintiffs’ practice
of indefinite deferral of R&D costs was inconsistent with the
conservatism principle in accounting because the probability of
associated revenue was remote or uncertain. Hyundai I,
[11] These issues included (1) the extent of HEA’s transshipped sales to third countries; (2) whether Customs could distinguish between entries destined for the United States and those destined for third countries; and (3) whether transshipped entries should have been included in the assessment rate calculation. See Pls.’ Br. at 17-19; Def.-Intvr.’s Br. at 17-19.