ABB Inc. v. United States

Slip Op. 16-95
UNITED STATES COURT OF INTERNATIONAL TRADE
ABB INC.,
Plaintiff,
v.
UNITED STATES,
Defendant,
HYUNDAI HEAVY INDUSTRIES CO.
LTD., HYUNDAI CORPORATION USA,
HYOSUNG CORPORATION, and HICO
AMERICA SALES AND TECHNOLOGY,
INC.,
Defendant-Intervenors.
Before: Mark A. Barnett, Judge
Court No. 15-00108
PUBLIC VERSION
OPINION AND ORDER
[Plaintiff’s motion is granted, in part, and the determination is remanded to the
Department of Commerce]
Dated: October 7, 2016
R. Alan Luberda, Kelley Drye & Warren LLP, of Washington, DC, argued for plaintiff.
With him on the brief were David C. Smith, Jr. and Joshua R. Morey.
John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of Counsel on the
brief was James H. Ahrens, II, Attorney, U.S. Department of Commerce, Office of Chief
Counsel for Trade Enforcement and Compliance, of Washington, DC.
David E. Bond, White & Case, LLP, of Washington, D.C., argued for defendant-
intervenor Hyundai Heavy Industries, Co., Ltd. and Hyundai Corporation USA. With him
on the brief were Walter J. Spak, William J. Moran and Ron Kendler.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 1 of 45

Court No. 15-00108 	Page 2
Henry D. Almond, Arnold & Porter LLP, of Washington, D.C., argued for defendant-
intervenors Hyosung Corporation and HICO America Sales and Technology, Inc. With
him on the brief were J. David Park, Andrew M. Treaster and Yujin K. McNamara.
Barnett, Judge: 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; 1
and accompanying Issues and Decision Mem., A-580-867 (Mar. 23, 2015) (“I&D
Mem.”), CJA, Doc. 2; PJA, Doc. 2; P.R. 261; 2 Large Power Transformers from the
1 The administrative record is divided into a Public Administrative Record (“P.R.”), ECF
No. 26-9, and a Confidential Administrative Record (“C.R.”), ECF No. 26-8. Parties
submitted joint appendices containing all record documents cited in their briefs. See
Public Joint App. (“PJA”), ECF No. 72, and Confidential Joint App. (“CJA”), ECF No. 71.
Additionally, the Court requested complete versions of certain record documents for
which parties had only submitted selected pages in the joint appendices. These are
cited separately as they appear in this opinion.
2 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 2 of 45

Court No. 15-00108 	Page 3
Republic of Korea, 80 Fed. Reg. 26,001 (Dep’t Commerce May 6, 2015) (amended final
results of antidumping duty admin. review; 2012-2013) (“First Am. Final Results”), CJA,
Doc. 3; PJA, Doc. 3; P.R. 291, and accompanying Am. Final Results of the Antidumping
Duty Admin. Review of Large Power Transformers from the Republic of Korea; 2012-
2013: Allegations of Ministerial Errors (Dep’t Commerce Apr. 28, 2015) (“First Am. Final
Results Mem.”), CJA, Doc. 42; PJA, Doc. 42; P.R. 284; Large Power Transformers from
the Republic of Korea, 80 Fed. Reg. 35,628 (Dep’t Commerce June 22, 2015) (second
amended final results of antidumping duty administrative review; 2012-2013) (“Sec. Am.
Final Results”), CJA, Doc. 4; PJA, Doc. 4; P.R. 304, and accompanying Second Am.
Final Results of the Antidumping Duty Admin. Review of Large Power Transformers
from the Republic of Korea; 2012-2013: Allegations of Ministerial Error (Dep’t
Commerce June 15, 2015) (“Sec. Am. Final Results Mem.”), CJA, Doc. 44; PJA, Doc.
44; P.R. 294. Plaintiff argues that the final dumping margins assigned to Defendant-
Intervenors, Hyundai Heavy Industries Co., Ltd. (“HHI”) and Hyundai Corp., USA
(collectively, “Hyundai”), and Hyosung Corp. and HICO America Sales and Technology,
Inc. (collectively, “Hyosung”) are based on data that were unreliable and are therefore
unsupported by substantial evidence and not in accordance with law. See generally
Conf. Pl.’s Mem. of Law in Supp. of Mot. for J. on the Agency R. (“Pl.’s MJAR.”), ECF
No. 45-1. Plaintiff further argues that Commerce should have used facts available or
“adverse facts available” to arrive at more accurate dumping margins for Hyosung and
Hyundai. See id. at 33, 39-42. Finally, Plaintiff argues that Commerce should not have
granted home market commission offsets to Hyosung and Hyundai and that its decision
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 3 of 45

Court No. 15-00108 	Page 4
to do so is unsupported by substantial evidence and not in accordance with law. Id. at
47-52; see also Conf. Pl.’s Reply Br. (“Pl.’s Reply”) at 18-22, ECF No. 69. For the
reasons detailed below, the Court will sustain, in part, and remand, in part, Commerce’s
Final Results.
B ACKGROUND
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) (antidumping
duty order) (“AD Order”). The Court begins with a brief discussion of the original
investigation to the extent that it is relevant to the issues raised by Plaintiff in this case.
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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 4 of 45

Court No. 15-00108 	Page 5
issued its final determination on July 11, 2012. LTFV Prelim. Notice, 77 Fed. Reg. at
9,205; see generally LTFV Final Results.
In the final determination for the less than fair value (“LTFV”) investigation and
accompanying Issues and Decision Memo, Commerce addressed the issue of
“unshipped 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 Commerce Oct. 2, 2013), CJA, Doc. 7; PJA, Doc. 7; P.R. 6. ABB
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 5 of 45

Court No. 15-00108 	Page 6
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 United 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 Hyosung
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.
On September 24, 2014, Commerce published the preliminary results of its
review. Large Power Transformers from the Republic of Korea, 79 Fed. Reg. 57,046
(Dep’t Commerce Sept. 24, 2014) (prelim. results of antidumping duty admin. review;
2012-2013) (“Prelim. Results”), CJA, Doc. 27; PJA, Doc. 27; P.R. 217 and
accompanying Issues and Decision Mem., A-580-867 (Sept. 18, 2014) (“Prelim. I&D
Mem.”), CJA, Doc. 62; PJA, Doc. 62; P.R. 208. 3 On March 31, 2015, Commerce issued
3 See also Analysis of Data Submitted by Hyosung 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 Hyosung 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 Antidumping 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).
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 6 of 45

Court No. 15-00108 	Page 7
the Final Results. Final Results, 80 Fed. Reg. at 17,034. 	ABB timely filed the present
case on April 10, 2015. See generally Summons, ECF No. 1; Compl., ECF No. 6.
Subsequently (and with leave from this Court), on May 6, 2015, Commerce issued the
First Amended Final Results and then, on June 22, 2015, the Second Amended Final
Results, both in response to allegations of ministerial error. See First Am. Final Results,
80 Fed. Reg. 26,001; Sec. Am. Final Results, 80 Fed. Reg. at 35,628; Order, ECF No.
24 (June 3, 2015). 4 The second amended final results assigned weighted average
dumping margins of 8.23 percent and 12.36 percent to Hyosung and Hyundai
respectively. See Sec. Am. Final Results, 80 Fed. Reg. at 35,629.
J URISDICTION AND S TANDARD OF 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), 5 and 28 U.S.C. § 1581(c) (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)(1)(B)(i).
“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United States,
322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB., 305 U.S.
197, 229 (1938)). It ‘“requires more than a mere scintilla,” but “less than the weight of
4 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.
5 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code,
2012 edition.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 7 of 45

Court No. 15-00108 	Page 8
the evidence.” Nucor Corp. v. United States, 34 CIT 70, 72, 675 F. Supp. 2d 1340,
1345 (2010) (quoting Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004)).
In determining whether substantial evidence supports Commerce’s determination, the
court must consider “the record as a whole, including evidence that supports as well as
evidence that ‘fairly detracts from the substantiality of the evidence.’” Nippon Steel
Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Atl. Sugar, Ltd. v.
United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). However, the fact that a plaintiff
can point to evidence that detracts from the agency’s conclusion or that there is a
possibility of drawing two inconsistent conclusions from the evidence does not preclude
the agency’s finding from being supported by substantial evidence. Matsushita Elec.
Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (citing Consolo v. Fed.
Mar. Comm’n, 383 U.S. 607, 619-20 (1966)). The court may not “reweigh the evidence
or . . . reconsider questions of fact anew.” Downhole Pipe & Equip., L.P. v. United
States, 776 F.3d 1369, 1377 (Fed. Cir. 2015) (quoting Trent Tube Div., Crucible
Materials Corp. v. Avesta Sandvik Tube AB, 975 F.2d 807, 815 (Fed. Cir. 1992)); see
also Usinor v. United States, 28 CIT 1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004)
(citation omitted) (the court “may not reweigh the evidence or substitute its own
judgment for that of the agency”).
Separately, the two-step framework provided in Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc. 467 U.S. 837, 842-45 (1984), guides judicial review of the
Department’s interpretation of the antidumping and countervailing duty statutes. See
Nucor Corp. v. United States, 414 F. 3d 1331, 1336 (Fed. Cir. 2005). First, the Court
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 8 of 45

Court No. 15-00108 	Page 9
“must determine whether Congress has directly spoken to the precise question at
issue.” Heino v. Shinseki, 683 F.3d 1372, 1377 (Fed. Cir. 2012) (quoting Chevron, 467
U.S. at 842). If Congress’s intent is clear, “that is the end of the matter.” Id. (quoting
Chevron, 467 U.S. at 842-43). However, “[i]f the statute is silent or ambiguous,” the
Court must determine “whether the agency’s [action] is based on a permissible
construction of the statute.” Dominion Res., Inc. v. United States, 681 F.3d 1313, 1317
(Fed. Cir. 2012) (citing Chevron, 467 U.S. at 842-43).
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”) 6 to calculate Hyosung’s dumping margin. In support of this
argument, ABB identifies a number of alleged discrepancies in Hyosung’s data. See
6 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
use an adverse inference in selecting from among the facts otherwise available if the
interested party failed to cooperate by not acting to the best of its ability. See also 19
C.F.R. § 351.308.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 9 of 45

Court No. 15-00108 	Page 10
generally Pl.’s MJAR. at 14-36. Defendant argues that Commerce confirmed the
accuracy of Hyosung’s data by issuing multiple questionnaires and reviewing source
documentation, and that the difference in data between the LFTV investigation and the
first administrative review is attributable to Hyosung having provided estimated data
during the LTFV investigation and actual data during the review. See generally Conf.
Def.’s Resp. to Pl.’s Rule 56.2 Mot. for J. on the Agency R. (“Def.’s Resp.”), ECF No. 61
at 12-17.
A. The Reliability of Hyosung’s U.S. Price and Expense Data
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 detracting 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. Def.’s Resp. at 12-13.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 10 of 45

Court No. 15-00108 	Page 11
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 misplaced 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
(1) 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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 11 of 45

Court No. 15-00108 	Page 12
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. 7 Moreover, the critical question for this administrative review is whether
Hyosung adequately substantiated the data it is now reporting. As detailed in the
Issues and Decision Memo, Commerce reviewed numerous documents, including
contracts, purchase orders, invoices and amended invoices, and payment records to
confirm Hyosung’s data and reasonably found that it was accurate as reported. I&D
Mem. at 16.
ABB also raised certain specific issues regarding Hyosung’s data and the Court
will now address those in turn.
x 	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
7 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 “understood[] [that] the estimated data and initial gross-unit prices
reported for its unshipped sales would need to be updated to reflect actual data for
when these sales shipped during the first administrative review.” Id. at 15. As
expected, the data Hyosung submitted for the first administrative review “differed from
the data in the LFTV investigation in certain instances.” Id. at 15-16.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 12 of 45

Court No. 15-00108 	Page 13
producing the unit. 8 Pl.’s MJAR at 19. ABB argues that there is insufficient evidence in
the record to support Hyosung’s explanations for these changes. 9 Id. at 21. Defendant
contends that Commerce examined this allegation during the review and that Hyosung
addressed it in its Fourth Supplemental Sales Questionnaire Response (Aug. 21, 2014).
Def.’s Resp. at 15 (citing Hyosung’s August 21, 2014, Fourth Supplemental Sales
Questionnaire Response (“Hyosung Aug. 21 SQR”), CJA, Doc. 22; PJA, Doc. 22; C.R.
367-370; P.R. 194). In that response, Hyosung explained that it had provided an
estimated cost to the customer based on revised customer requirements. Id.; see also
Hyosung Aug. 21 SQR at 11. The customer accepted this estimate. Id.; see also
Hyosung Aug. 21 SQR at 11. Subsequently, Hyosung’s design team developed a more
efficient unit and Hyosung experienced a decline in raw material costs. Id.; see also
Hyosung Aug. 21 SQR at 15-16. As such, Hyosung was able to produce the unit at a
lower cost, even though the customer had accepted a higher price. Id; see also
Hyosung Aug. 21 SQR at 10-16. Commerce found that Hyosung had sufficiently
demonstrated that changes in data between the original investigation and the first
administrative review were attributable to the reporting of estimated versus actual
values and amended or revised purchase orders. I&D Mem. at 16 & n. 77.
8 This transaction was identified in Hyosung’s database as SEQU [[ ]]. Pl.’s MJAR at
19.
9 ABB specifically takes issue with Hyosung’s claims that the change in price is
attributable to [[
]]. Pl.’s MJAR at 19-22; Pl.’s Reply at 3-5.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 13 of 45

Court No. 15-00108 	Page 14
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 course of the administrative review. Therefore, the Court
declines to reweigh the evidence upon which Commerce relied. See Downhole Pipe &
Equip., 776 F.3d at 1377; see also Usinor, 28 CIT at 1111, 342 F. Supp. 2d at 1272. In
view of the record as a whole and Commerce’s investigation of ABB’s allegation, the
Court finds that Commerce’s determination with respect to this transaction is based on
substantial evidence.
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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 14 of 45

Court No. 15-00108 	Page 15
at 23-24. ABB identifies a second selected transaction to illustrate its point. 10 Id. 22-24.
ABB argues that Commerce should have addressed this by capping freight revenue at
actual cost. Id. at 24. Additionally, ABB contrasts certain expense amounts reported to
Commerce with different expense amounts reported for other reasons 11 to suggest that
either the expenses reported to Commerce are understated or the prices are
overstated. Id. at 30-31. For each allegation raised, the Court finds that Commerce
requested and reviewed directly relevant source documentation substantiating
Hyosung’s reported data, found Hyosung’s data to be reliable, and made its
determination based on substantial evidence in the record.
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 mark-up 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 have 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
10 This second selected transaction is identified in Hyosung’s sales database as SEQU
[[ ]]. Pl.’s MJAR at 22.
11 Reported to [[ 	]] or in Hyosung’s [[ 	]]. See Pl.’s MJAR at 30-
31.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 15 of 45

Court No. 15-00108 	Page 16
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 Hyosung’s
database when, in fact, Hyosung correctly had allocated a greater amount of revenue to
one of the units. 12 Def.’s Resp. at 17-18; see also Hyosung’s Aug. 25, 2014 Fourth
Supplemental Sales Questionnaire Response (“Hyosung Aug. 25 SQR”), Ex. S-1 at
JA101825, CJA, Doc. 23; PJA, Doc. 23; C.R. 371-73; P.R. 195-96 (revised U.S. sales
database). The freight revenue was not allocated evenly across units but, rather, it was
allocated as it was incurred – with units shipped in multiples receiving a different per
unit allocation of the freight expense. See id. (revised U.S. sales database noting ship
dates and freight expenses for the relevant units). Defendant also explains that the
“revenue figures used by ABB are not the reported data used in calculating [Hyosung’s]
dumping margin,” and that “ABB’s analysis does not demonstrate that Hyosung’s
reported gross unit prices are artificially inflated.” Def.’s Resp. at 18.
12 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 convert 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 16 of 45

Court No. 15-00108 	Page 17
The Court 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. 13 As with other overlapping sales, Commerce explained
that both the agency and Hyosung had anticipated changes in data from the LTFV
investigation to the instant review, I&D Mem. at 35, and the Court has already
addressed this argument above, see supra Discussion Section I.A.i. Moreover, with
respect to the change in price for the second selected transaction, Commerce
requested and received explanations and corresponding documentation from Hyosung.
See Hyosung July 2 SQR at S-20 – S-21, CJA, Doc. 18; PJA, Doc. 18; see also
Hyosung July 2 SQR at Ex. S-11, CJA, Doc. 60; PJA, Doc. 60. Commerce accepted
Hyosung’s explanation that the data changed because “subsequent to the original
purchase order, the U.S. customer requested changes to the original purchase order
(e.g., an expanded scope of services),” and that this “understandably resulted in an
increase to the build-up of the total reported gross unit price for this transaction.” I&D
Mem. at 35. Hyosung supported its explanation for the price change with
documentation, including revised purchase orders and HICO America’s invoice to the
U.S. customer. Id.; see also Hyosung July 2 SQR at S-20 – S-21, CJA, Doc. 18; PJA,
13 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 17 of 45

Court No. 15-00108 	Page 18
Doc. 18; see also Hyosung July 2 SQR at Ex. S-11, CJA, Doc. 60; PJA, Doc. 60. In light
of the Court’s previous analysis of the overlapping sales issue, the documentation
contained in the record, and Commerce’s determination that Hyosung provided
adequate supporting documentation on the final price and expenses of this second
selected transaction, the Court finds that Commerce’s decision to accept the price and
expense data for this transaction is based on substantial evidence.
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. Hyosung’s Resp. in Opp’n to Pl. ABB Inc.’s R. 56.2 Mot. for
J. on the Agency R. (“Hyosung Resp.”) at 26, ECF No. 66; Certain Pasta from Italy, 78
Fed. Reg. 48,147. Further, Hyosung argues that capping would be “inappropriate and
distortive” in this case because it “established its prices through negotiations with its
customers based on the particular terms of sale.” Hyosung Resp. at 27. 14 	Hyosung
contends that capping was not warranted because the terms of sale included delivery
and freight was not separately contracted for with the customer. See id. at 18-21, 25-
26. The actual freight expenses were not stated in the purchase order because the
amount could not be determined until delivery occurred. Hyosung Resp. at 18-19; see
14 The sale in question was finalized as “[[ 	]].” Hyosung July
3 SQR, Ex. S-11 at JA 400460, CJA, Doc. 60; PJA, Doc. 60.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 18 of 45

Court No. 15-00108 	Page 19
also Hyosung July 2 SQR, Ex. S-11 at JA 400460, CJA, Doc. 60; PJA, Doc. 60.
Hyosung submitted its final invoice to Commerce documenting the expense at the time
of delivery. 	Hyosung Resp. at 20; see also Hyosung July 2 SQR, Ex. S-11 at JA
400465-466, CJA, Doc. 60; PJA, Doc. 60.
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 U.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 15 and argues that
“revenues and expenses from services have not been netted out of gross unit price at
15 This third selected transaction is identified in Hyosung’s sales database as SEQU [[ ]].
See Pl.’s MJAR at 25.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 19 of 45

Court No. 15-00108 	Page 20
the same level as they have been included in Hyosung’s build-up of gross unit price
reported to Commerce.” Id. at 25-26. Noting that Commerce focused on the wrong
issue when it attributed the discrepancy to changes from estimated to actual expenses,
ABB maintains that the data on the commission agreements show that the expenses
used by Hyosung to build up “reported gross unit prices are inconsistent with the lower
expenses reported as deductions to gross unit price.” Id. at 26. Defendant counters
that ABB’s claims are unsubstantiated because ABB relies on secondary documents to
make assumptions about gross unit price, whereas Hyosung has provided corroborating
documents to substantiate its U.S. price and expense data with respect to this third
selected transaction, specifically, and commission expenses, generally. 16 Def’s Resp.
at 19-20; see also I&D Mem. at 18-21.
This issue was broadly raised during the administrative proceeding and
Commerce had an opportunity to review the expenses reported for this third selected
transaction. See I&D Mem. at 18-21; see also Proprietary I&D Mem. – Hyosung at 3-4;
Hyosung’s January 13, 2014, Section C Questionnaire Responses (“Hyosung Jan. 13
CQR”) at Ex. C-19, CJA, Doc. 11; PJA, Doc. 11; C.R. 62-74; P.R. 76-78 (sales
commission calculation). It is clear from the Issues and Decision Memo and the
16 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.1. 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 finding on this matter is
supported by the record. See Def.’s Resp. at 19-20; see also I&D Mem. at 18-21.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 20 of 45

Court No. 15-00108 	Page 21
documentation Hyosung provided that Hyosung properly supported each of the
expenses used by Commerce in its margin calculation, including commissions and
ocean freight. See I&D Mem. at 19-21; see also Hyosung Apr. 10 SQR at Exs. S-36A-
S-36C (purchase orders, invoices and sales representation agreements). Hyosung
provided Commerce with “a copy of the commission statement sent to its U.S. sales
agent for this sale, a worksheet demonstrating how the commission documentation
reconciles to the U.S. sales listing, and documentation demonstrating that Hyosung paid
the commission amount listed on the commission statement and reported in Hyosung’s
U.S. sales database.” See I&D Mem. at 19; see also Hyosung Apr. 10 SQR at Exs. S-
36A-S-36C. In addition, Hyosung provided sample documentation, including
purchase/sales orders, contract amendments, invoices, payments and commission
agreements as needed, to support its commission calculations. I&D Mem. at 19. In
contrast, ABB points to a secondary document, a sample commission calculation, to
argue that Hyosung is reporting different expense data for the same sale. Pl.’s MJAR at
25; see also Hyosung Jan. 13 CQR at Ex. C-19; Hyosung’s First Supplemental Section
A Questionnaire Resp. (“Hyosung’s Feb. 24 SAQR”) at Ex. SA-26, CJA, Doc. 13; PJA,
Doc. 13; C.R. 199-206; P.R. 107. 	That Hyosung may have used expense figures for
the purpose of negotiating its commissions that were different from those reported to
Commerce is inconsequential when Commerce has confirmed Hyosung’s reported
expenses with documents directly related to the expense. See Hyosung Jan. 13 CQR
at Ex. C-19; see also Hyosung Apr. 10 SQR at Ex. S-36. Hyosung is under no
obligation to negotiate commissions with its commission agents based upon the actual
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 21 of 45

Court No. 15-00108 	Page 22
expenses calculated in the manner required by Commerce for antidumping reporting
purposes. Any differences between the figures noted on the sample commission
document and the actual expenses reported to Commerce do not call into question the
accuracy of the expenses reported to Commerce and supported by the record.
Consequently, the Court finds Commerce’s determination with regard to this issue to be
supported by substantial evidence.
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. 17 ABB attempts to combine this difference
with the changes from estimates to actual prices and expenses for several sales to call
into question the reliability of Hyosung’s gross unit prices as reported. 18 See generally
Pl.’s MJAR at 27-30. Defendant notes that ABB’s argument rests on a mistaken
premise that the two sets of data should match, when in fact different statutory and
regulatory schemes apply at each agency that use different base values and
adjustments. Def.’s Resp. at 21; see also I&D Mem. at 8-10; Proprietary I&D Mem. –
Hyosung at 1-7. Commerce found that ABB was effectively asking it to determine
17 The agency in question is [[ 	]]. Pl.’s MJAR at 27-30.
18 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 Hyosung
reported [[ 	]] ocean freight in the U.S sales listing to Commerce
than it did to [[ 	]]. See Pl.’s MJAR at 29-30.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 22 of 45

Court No. 15-00108 	Page 23
whether the data reported to the other agency was accurate and that Commerce is “not
in a position to make such a determination.” Proprietary I&D Mem. – Hyosung at 3.
Commerce reviewed supporting documentation for the data it received and concluded
that Hyosung had substantiated the data to Commerce’s satisfaction. See Def.’s Resp.
at 22; I&D Mem. at 21-22 (noting that Commerce relied on “supporting documentation
directly related to the expense itself (e.g. invoices, payment documentation) to verify a
respondent’s reporting of actual expense data”); Proprietary I&D Mem. – Hyosung at 4-
6.
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, 19 including the
third selected transaction for which Hyosung provided detailed documentation
19 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 23 of 45

Court No. 15-00108 	Page 24
supporting its reported expenses, such as ocean freight expenses. 20 See Hyosung Jan.
13 CQR at Ex. C-13; Hyosung Apr. 10 SQR at Ex. S-29; see also Proprietary I&D Mem.
– Hyosung at 5-6. Commerce thus reviewed, among other documents, purchase
orders, pricing proposals, invoices for international transport and oil, and entry
summaries, and these documents are part of the record. See Hyosung Apr. 10 SQR at
Ex. S-29. Given that Commerce reviewed and the record contains directly relevant
source documentation substantiating Hyosung’s reported expenses, the Court finds that
Commerce’s determination that Hyosung’s data is reliable is supported by substantial
evidence on the record. Commerce does not have an additional obligation to confirm
the veracity of information reported to another agency or to explain away differences in
reporting between Commerce and another agency when it has otherwise taken
adequate steps to address its record information.
iii. 	Hyosung’s Installation Expenses
ABB argues that Hyosung’s final dumping margin is inaccurate because Hyosung
reported its installation expenses improperly when it categorized them as direct selling
expenses in the home market and reported them as indirect selling expenses in the
U.S. market. According to ABB, this difference in treatment had the effect of
understating the margin of dumping. See generally Pl.’s MJAR at 34-35. ABB raised
20 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).
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 24 of 45

Court No. 15-00108 	Page 25
this argument during the administrative proceeding and Commerce determined that
Hyosung had documented all of its installation expenses accurately. I&D Mem. at 22-
24. Further, Commerce allocated Hyosung’s installation expenses as reported
because, in each case, Hyosung reported the installation expenses in accordance with
the way they were maintained in their normal course of business. Id. at 23-24; Analysis
of Data Submitted by Hyosung 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 (“Prelim. Mem. – Hyosung”) at 8-9, ECF No. 82-3; C.R. 423; P.R. 209.
Moreover, in the Preliminary Analysis Memo for Hyosung, Commerce put Hyosung on
notice that, going forward, Hyosung would need to track and report its installation
expenses consistently across the U.S. and home markets. See I&D Mem. at 24; Prelim.
Mem. – Hyosung at 8. 21
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
21 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 25 of 45

Court No. 15-00108 	Page 26
(citing 19 C.F.R. § 351.410(c)). The regulation referenced by ABB simply provides the
definition of a “direct selling expense.” 22 The regulation does not speak to the treatment
of direct selling expenses. Moreover, the statute 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)(1). 23
The Court finds that Commerce’s decision to allocate Hyosung’s installation
expenses as reported is supported by substantial evidence and in accordance 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, Hyosung 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, HICO, did not. 24
22 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 question.”
23 Pursuant to 19 U.S.C. § 1677b(f)(1)(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.”
24 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 26 of 45

Court No. 15-00108 	Page 27
As a result, some U.S. installation expenses were reported as indirect expenses. See
I&D Mem. at 23-24; see also Prelim. Mem. – Hyosung at 8. Hyosung supported its
explanation with corroborating documents. See generally Hyosung Jan. 13 CQR.
Commerce determined that Hyosung had appropriately substantiated all its installation
expenses 25 and this determination is supported by substantial evidence on the record.
See I&D Mem. at 22-24; Prelim. Mem. - Hyosung at 8-9; see also Proprietary I&D Mem.
– Hyosung at 6-7.
Commerce’s decision to accept Hyosung’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)(1). Commerce reasonably exercised its
discretion to accept Hyosung’s installation expenses as reported and Hyosung’s
explanation for the accounting inconsistency for the purpose of this first administrative
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.
25 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 reconciliation with estimated expenses used to negotiate commission
agreements. I&D Mem. at 23.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 27 of 45

Court No. 15-00108 	Page 28
review, while Commerce also put Hyosung on notice that it will require consistent
reporting of these expenses in future reviews. 26 I&D Mem. at 23-24; Prelim. Mem. –
Hyosung at 8-9.
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 proceeding, issued multiple questionnaires to Hyosung
regarding alleged discrepancies, and ultimately concluded that Hyosung’s reported data
was accurate. Commerce determined that Hyosung credibly explained and
documented its reported data, that it was fully cooperative, and responded to each of
26 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).
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 28 of 45

Court No. 15-00108 	Page 29
Commerce’s requests for additional information. See I&D Mem. at 17-18. As such, no
“necessary” information was missing from the record. 	Thus, Commerce concluded
that neither facts available nor AFA was warranted. Id. Having reviewed ABB’s claims
and having found no reason to disturb Commerce’s determinations with regard to any of
the specific arguments, the Court sustains Commerce’s determination on the application
of facts available or AFA. ABB offers no additional support for this claim and instead is
asking the Court to reweigh the evidence. The alleged discrepancies ABB identified in
the record have been reviewed by the Court and the Court has found that each of
Commerce’s determinations was based on substantial evidence in the record and in
accordance with the law. The Court, therefore, finds that Commerce’s decision not to
use facts available or AFA is based on substantial evidence and in accordance with law.
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. 27 See generally Pl.’s MJAR at 36-47. As such, ABB
asserts that Commerce should have used AFA. Id. at 39. Further, ABB claims that
discrepancies in expenses reported by Hyundai for two selected transactions 28 resulted
in an improperly inflated gross unit price. Id. at 45. ABB also highlights discrepancies
27 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.
28 See supra note 27.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 29 of 45

Court No. 15-00108 	Page 30
in the sequencing of certain documents that Hyundai provided to a separate agency 29
(and placed on Commerce’s record in order to substantiate its own reporting) to further
argue that Hyundai’s data, as reported, is unreliable. Pl.’s MJAR at 43-47. 	Defendant
argues that Hyundai adequately explained the alleged differences between the data that
it reported to Commerce and to another agency, and that Commerce was able to
independently verify Hyundai’s data through its own questionnaires. See generally
Def.’s Resp. at 27-32. Defendant asserts that, for these reasons, AFA was not
warranted. Id. at 31-32. Defendant also notes that ABB’s claims regarding the markup
in gross unit price for two selected transactions were waived for failure to exhaust. Id.
at 30. Finally, Defendant argues that Commerce reasonably determined that
discrepancies in sequencing concerning a subset of Hyundai’s sales were insufficient to
“outweigh the remaining record evidence indicating that Hyundai’s reported data are
reliable.” Id. at 31. For the reasons discussed below, the Court sustains Commerce’s
findings on the issue of whether AFA was warranted as a result of alleged discrepancies
in data between Commerce and another agency. 	The Court also finds that ABB’s
claims regarding an alleged improper markup in gross unit price were not exhausted
below. Finally, the Court remands the issue raised by ABB regarding the sequencing of
certain documents.
29 The agency in question is [[ 	]]. ABB relies on a third selected transaction, SEQU
[[ ]], as an illustration, but notes that similar sequencing issues exist for SEQU [[
]]. Pl.’s MJAR at 46.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 30 of 45

Court No. 15-00108 	Page 31
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 30 and that doing so would have
satisfied Commerce’s responsibility to calculate accurate dumping margins and to
protect the integrity of its own proceedings. Id. at 45-47. Defendant contends that
Hyundai provided full explanations for the differences between expenses reported to the
other agency and Commerce and that it is not Commerce’s obligation to evaluate the
accuracy of Hyundai’s submissions to another agency. Def.’s Resp. at 27.
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 report 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
30 ABB argues that Hyundai [[
]] Pl.’s MJAR at 38.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 31 of 45

Court No. 15-00108 	Page 32
by providing supporting documentation. See Proprietary I&D Mem. – Hyundai at 5,
17. 31 	On the basis of Hyundai’s responses, Commerce concluded that Hyundai’s data,
as it was reported to Commerce, was reliable, and that Hyundai’s explanations for any
alleged inconsistency were credible and sufficient. Id. at 5-6. Further, Commerce noted
that it was not in a position to draw conclusions on the reliability of data reported to it
from representations made to another agency when the data reported to Commerce
was appropriately substantiated. Id. Finally, Commerce stated that it was not in a
position to determine whether representations made to the other agency were accurate
as that was a matter properly within the purview of the other agency. Id. It is not the
Court’s role to reweigh evidence already considered by the agency and there is
substantial evidence supporting Commerce’s determination to rely on the information
presented to it by Hyundai. Therefore, the Court finds no reason to upset the agency’s
finding on this issue. ABB does not offer any further evidence supporting its claim that
Hyundai’s data in this regard is unreliable. 32 Thus, the Court is satisfied that
31Hyundai responded to over 11 questionnaires and supplemental questionnaires.
Proprietary I&D Mem. – Hyundai at 17.
32 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
Supp. of its R. 56.2 Mot. For J. on the Agency R. (“Hyundai Resp.”) at 12, ECF 62.
Further, Hyundai claims that the alleged differences were resolved by [[
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 32 of 45

Court No. 15-00108 	Page 33
Commerce’s conclusion that Hyundai sufficiently substantiated its reporting to the
Department is based on substantial evidence on the record.
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
]] and that ABB does not compare the actual expense
documentation submitted to [[ 	]] in Hyundai’s later representations (which are part of
the record for this administrative review) in making this allegation anew. Id.
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, Plaintiff’s 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 33 of 45

Court No. 15-00108 	Page 34
avoid a higher dumping margin.” 	Shanghai Taoen Int’l Trading Co. v. United States, 29
CIT 189, 195, 360 F. Supp 2d 1339, 1344-45 (CIT 2005). Given that Hyundai
responded to multiple questionnaires and supplemental questionnaires, and supported
its responses with source documentation, Commerce concluded that it cooperated with
the review to the best of its ability. Proprietary I&D Mem. – Hyundai at 5, 17. While
ABB is dissatisfied with Hyundai’s explanation for the alleged differences in reporting to
Commerce and the other agency, it offers the Court nothing further than the argument it
already made to Commerce and which Commerce already considered. There is
nothing in the record that supports ABB’s allegation that Hyundai failed to accurately
respond or credibly explain inconsistencies, or purposely withheld information to avoid a
higher dumping margin. On the contrary, to the extent that there may have been issues
with Hyundai’s reporting to the other agency, Hyundai placed those and related
documents on the record for Commerce to review. See Hyundai Resp. at 12. On this
basis, Commerce concluded that Hyundai’s explanation for the alleged differences was
credible and that, in any event, Hyundai had sufficiently substantiated its reporting to
Commerce. See Proprietary I&D Mem. – Hyundai at 5-6, 17. The Court finds no
reason to disturb Commerce’s finding on this issue. In light of Commerce’s general
finding that Hyundai’s data, as reported, is accurate, the fact that Hyundai made distinct
representations to another agency, by itself, is not sufficient to call into question
Hyundai’s data or to warrant an application of facts available or AFA.
As to Plaintiff’s claim that discrepancies in expenses reported to Commerce
regarding the two selected transactions resulted in an improperly inflated gross unit
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 34 of 45

Court No. 15-00108 	Page 35
price, the Court considers whether these claims were exhausted below. “[T]he Court of
International Trade shall, where appropriate, require 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, 348 F.3d 997,1003 (Fed. Cir. 2003) (internal quotation marks and
citation omitted). Commerce regulations require in order to preserve claims for appeal
that parties raise all arguments before it in their case briefs. See 19 CFR § 351.309. 33
This has been confirmed by the Federal Circuit. See Qingdao Sea-Line Trading Co.
Ltd. v. U.S., 766 F.3d 1378, 1388 (Fed. Cir. 2014) (Commerce regulations require
presentation of all issues and arguments in a party’s administrative case brief); Dorbest
Ltd v. United States, 604 F.3d 1363, 1375 (Fed. Cir. 2010) (insufficient for party to have
raised an issue in a footnote in the rebuttal brief or during the ministerial comment
period when the issue was not raised in the party’s case brief). Issues not raised before
the agency in case and rebuttal briefs are waived for failure to exhaust and cannot be
raised on appeal before the CIT. 34 28 U.S.C. § 2637(d). There are exceptions to the
33 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.”)
34 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).
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 35 of 45

Court No. 15-00108 	Page 36
requirement of exhaustion, to be applied at the court’s discretion, but none of the
exceptions apply here. 35
ABB argues that its claim that overstated freight costs for two selected
transactions 36 were included in gross unit prices as reported to Commerce was
appropriately raised during the administrative proceeding. Pl.’s Reply at 15. In its
Reply, ABB cites to its case brief as proof that it had raised this issue during the
administrative proceeding; however a close review of ABB’s own citation shows that
ABB only made a generalized claim regarding Hyundai’s allegedly inconsistent reporting
to Commerce and to another agency. 37 See Pl.’s Reply at 15-16; Pet’rs Case Br.
Regarding Hyundai (“ABB Case Br.”) at 12-13, ECF No. 78-3; P.R. 245. ABB’s case
brief does not make the argument that for the selected transactions Hyundai also
reported improperly marked up expenses that were passed on in the gross unit price
35 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, 26 CIT 1156, 1186, n.26, 240 F. Supp. 2d 1268, 1297 n.26 (2002) (collecting
cases). The Court has also found exceptions to exhaustion when a private party is
denied access to critical information at a time when its case brief is due or when
requiring exhaustion is burdensome such that it would result in “undue prejudice to
subsequent assertion of a court action.” See Corus Staal BV v. United States, 502 F.3d
1370, 1381 (Fed. Cir. 2007) (citation omitted).
36 SEQU [[ ]] and [[ ]].
37 ABB argues in its case brief that “[f]or SEQU [[ ]] for example, the [[
]] Any claim that [[
]] does not stand up to scrutiny” and further that
“[[
]]” ABB
Case Br. at 12-13.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 36 of 45

Court No. 15-00108 	Page 37
reported to Commerce. The Federal Circuit has confirmed that in order to exhaust
remedies, parties must raise all issues and arguments in briefing before the agency.
See Dorbest, 604 F.3d at 1375; Qingdao Sea-Line Trading Co. Ltd., 766 F.3d at 1388.
Arguing that there were discrepancies in data reported to two different agencies related
to two sales observations, particularly when there is an independent rationale for those
discrepancies, is not the same as arguing that improperly marked up expenses were
included in the calculation of gross unit price. The Court, therefore, is persuaded that
ABB failed to exhaust this claim during the administrative proceeding because merely
bringing up a general issue does not serve to “exhaust[] all specific issues under that
general umbrella.” Trust Chem Co. Ltd. v. United States, 35 CIT __,__ 791 F. Supp. 2d
1257, 1268 n. 27 (2011) (citing Gerber Food (Yunnan) Co. v. United States, 33 CIT 186,
195, 601 F. Supp. 2d 1370, 1379 (2009)). Further, the Court finds that a discretionary
exception to exhaustion is not warranted in this case.
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. 38 ABB alleges that for the third selected transaction the HHI/Hyundai sales
contract is dated after the date of the commercial invoice and the date of entry to the
38 The third selected transaction for Hyundai is SEQU [[ ]]. Pl.’s MJAR at 40.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 37 of 45

Court No. 15-00108 	Page 38
United States. 39 Pl.’s MJAR at 46. ABB further notes that the same/similar document
sequencing problem also applies to certain other U.S. observations. 40 Id. Defendant
acknowledges this issue was raised during the proceeding but avers that Commerce
made a reasonable determination that ABB’s alleged discrepancies “concerning a
subset of Hyundai’s U.S. sales did not outweigh the remaining record of evidence
indicating that Hyundai’s reported data are reliable.” Def.’s Resp. at 31.
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. 41 Id. Similarly, with respect to the third selected
transaction, Commerce noted that Hyundai did not address the discrepancy but also
acknowledged that Commerce did not ask Hyundai to provide further information, even
39 ABB alleges that documents provided by Hyundai to “[[
]]” Pl.’s MJAR at 46.
40 Specifically, SEQU [[ 	]]. Pl.’s MJAR at 46.
41 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 38 of 45

Court No. 15-00108 	Page 39
though ABB had raised similar concerns for additional sales observations. 42 Id. at 15.
While Defendant argues that Commerce made a reasonable finding that Hyundai’s
reported data is reliable regardless of the discrepancies in sequencing, Defendant’s
supporting citations point to a separate finding that AFA is not warranted. 43 See Def.’s
Resp. at 31. Thus, even this statement is unsupported by the record. Neither
Commerce nor Defendant-Intervenor offered any further explanation in briefing to this
Court or during oral argument.
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, 44 so that Commerce may further
investigate and/or explain its conclusion.
42 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.
43 In sections addressing ABB’s arguments that Commerce should apply AFA,
Commerce noted that 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 [11] questionnaires. See I&D
Mem. at 42-43, 53-54; Proprietary I&D Mem. – Hyundai at 15-17.
44 SEQU [[ 	]].
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 39 of 45

Court No. 15-00108 	Page 40
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 of 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
to the commission offsets because it failed to exhaust its administrative remedies before
Commerce. 45 Defendant asserts that Commerce indicated its intention to grant the
commission offsets in the Preliminary Results and ABB did not challenge this decision
in its case briefs before the agency. Def.’s Resp. at 33-34 (citing Prelim. Mem. -
45 Hyundai agrees that ABB failed to raise the commission offset issue after the
Preliminary 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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 40 of 45

Court No. 15-00108 	Page 41
Hyosung at 13). ABB replies that it timely raised the issue because Commerce
announced changes to its treatment of U.S. commissions in both the Amended Final
Results and the Second Amended Final Results issued following the publication of the
Final Results. Pl.’s Reply at 19.
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)(1)(A), and the profit allocated 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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 41 of 45

Court No. 15-00108 	Page 42
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.
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 42 of 45

Court No. 15-00108 	Page 43
commissions in the margin calculation program is inconsistent with its characterization
of those commissions in the Second Amended Final Results.
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–advancing the twin purposes of protecting administrative agency authority and
promoting judicial efficiency,” Carpenter Tech. Corp. v. United States, 30 CIT 1373,
1374–75, 452 F. Supp. 2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 81, 88–
90 (2006)), the Court of Appeals for the Federal Circuit has held that the application of
exhaustion principles in trade cases is exercised with a measure of discretion by the
Court. See, e.g., Corus Staal, 502 F.3d at 1381; Norsk Hydro Canada, Inc. v. United
States, 472 F.3d 1347, 1356 n.17 (Fed. Cir. 2006); Consol. Bearings, 348 F.3d at 1003.
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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 43 of 45

Court No. 15-00108 	Page 44
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 practice, 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
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 44 of 45

Court No. 15-00108 	Page 45
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 Commerce shall file its remand results on or before January 5,
2017; 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 parties 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.
/s/ 	Mark A. Barnett
Mark A. Barnett, Judge
Dated: October 7, 2016
New York, New York
Case 1:15-cv-00108-MAB Document 100 Filed 10/17/16 Page 45 of 45