Abb, Inc. v. United States , 920 F.3d 811 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
ABB, INC.,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellee
HYOSUNG CORPORATION, HICO AMERICA
SALES AND TECHNOLOGY, INC.,
Defendants
v.
HYUNDAI HEAVY INDUSTRIES CO., LTD.,
HYUNDAI CORPORATION, USA,
Defendants-Appellants
______________________
2018-1300
______________________
Appeal from the United States Court of International
Trade in No. 1:15-cv-00108-MAB, Judge Mark A. Barnett.
______________________
Decided: April 5, 2019
______________________
ROBERT ALAN LUBERDA, Kelley Drye & Warren, LLP,
Washington, DC, argued for plaintiff-appellee. Also repre-
sented by MELISSA M. BREWER, DAVID C. SMITH, JR.
2 ABB, INC. v. UNITED STATES
JOHN JACOB TODOR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for defendant-appellee. Also repre-
sented by JEANNE DAVIDSON, FRANKLIN E. WHITE, JR.,
JOSEPH H. HUNT; CHRISTOPHER HYNER, United States De-
partment of Commerce, Washington, DC.
DAVID EDWARD BOND, White & Case LLP, Washington,
DC, argued for defendants-appellants. Also represented by
RON KENDLER.
______________________
Before MOORE, SCHALL, and STOLL, Circuit Judges.
SCHALL, Circuit Judge.
Hyundai Heavy Industries, Co., Ltd. and Hyundai Cor-
poration, USA (collectively, “Hyundai”), appeal the deci-
sion of the United States Court of International Trade in
ABB, Inc. v. United States, 273 F. Supp. 3d 1186 (2017)
(“ABB II”). In that decision, the Court of International
Trade sustained the remand determination of the Depart-
ment of Commerce (“Commerce”) in the first administra-
tive review of the antidumping duty order on large power
transformers from the Republic of Korea (“Korea”).
The issue before us is a narrow one. It is whether the
Court of International Trade erred in affirming Com-
merce’s determination to not make a circumstances of sale
adjustment to normal value under 19 U.S.C.
§ 1677b(a)(6)(C)(iii) in the form of a commission offset,
where Hyundai, the party seeking the adjustment, in-
curred no commission expenses on home market sales and
no commission expenses outside the United States on U.S.
sales, but did incur commission expenses inside the United
States on constructed export price sales in the United
States. Finding no error in the decision of the court, we
affirm.
ABB, INC. v. UNITED STATES 3
BACKGROUND
I.
The antidumping statute provides for the assessment
of duties on foreign merchandise being, or likely to be, sold
in the United States “at less than its fair value.”
19 U.S.C. § 1673. 1 An antidumping investigation is initi-
ated when a domestic industry petitions Commerce to in-
vestigate allegations of such sales. Sango Int’l, L.P. v.
United States, 484 F.3d 1371, 1373 (Fed. Cir. 2007). At the
end of the investigation, if Commerce and the U.S. Inter-
national Trade Commission (“ITC”) have made the requi-
site determinations, Commerce publishes an order that
directs customs officers to assess antidumping duties on
imports of goods covered by the investigation. 19 U.S.C.
§ 1673e(a); SolarWorld Ams., Inc. v. United States, 910
F.3d 1216, 1220 (Fed. Cir. 2018). Each year after the order
is published, if Commerce receives a request for an admin-
istrative review of the order, it reviews and determines the
amount of any antidumping duty. 19 U.S.C. § 1675(a)(1).
For every administrative review, Commerce typically
must “determine the individual weighted average dumping
margin for each known exporter and producer of the sub-
ject merchandise.” 19 U.S.C. § 1677f-1(c)(1). The weighted
average dumping margin reflects the amount by which
“‘normal value’ (the price a producer charges in its home
market) exceeds . . . ‘export price’ (the price of the product
1 In June 2015, Congress amended various statutes
relating to antidumping. See Trade Preferences Extension
Act of 2015, Pub. L. No. 114-27, §§ 501-07, 129 Stat. 362,
383–87 (2015). The amendments do not affect this appeal.
See Dates of Application of Amendments to the Antidump-
ing and Countervailing Duty Laws Made by the Trade Pref-
erences Extension Act of 2015, 80 Fed. Reg. 46,793 (Aug. 6,
2015).
4 ABB, INC. v. UNITED STATES
in the United States) or ‘constructed export price.’” See
U.S. Steel Corp. v. United States, 621 F.3d 1351, 1353 (Fed.
Cir. 2010) (citing 19 U.S.C. § 1677(35)(A)). “Commerce
uses a constructed export price [(“CEP”)] if ‘before or after
the time of importation, the first sale to an unaffiliated per-
son is made by (or for the account of) the producer or ex-
porter or by a seller in the United States who is affiliated
with the producer or exporter.’” Id. at 1353 n.1 (citing Uru-
guay Round Agreements Act, Statement of Administrative
Action, H.R. Doc. No. 103-316, at 822 (1994), reprinted in
1994 U.S.C.C.A.N. 4040, 4163 (“SAA”)); see
19 U.S.C. § 1677a(b).
This case arises out of an antidumping duty order on
large power transformers from Korea. Large Power Trans-
formers from the Republic of Korea, 77 Fed. Reg. 53,177
(Dep’t of Commerce Aug. 31, 2012) (antidumping duty or-
der) (“Antidumping Duty Order”). The Antidumping Duty
Order resulted from an antidumping duty investigation in-
itiated by Commerce on August 10, 2011 in response to a
request by various petitioners, including ABB Inc. (“ABB”).
See Large Power Transformers from the Republic of Korea,
77 Fed. Reg. 9204 (Dep’t of Commerce Feb. 16, 2012) (pre-
lim. determination). The period of investigation was July
1, 2010, to June 30, 2011. Id. at 9205. Commerce selected
Hyundai as a mandatory respondent in the investigation.
Id.
On July 11, 2012, Commerce issued a final determina-
tion that imports of large power transformers from Korea
were being, or were likely to be, sold in the United States
at less than fair value. Large Power Transformers from the
Republic of Korea, 77 Fed. Reg. 40,857 (Dep’t of Commerce
July 11, 2012) (final determination). On August 24, 2012,
the ITC notified Commerce that a domestic industry in the
United States was materially injured by reason of less-
than-fair-value imports of large power transformers from
Korea. Antidumping Duty Order, 77 Fed. Reg. at 53,177.
ABB, INC. v. UNITED STATES 5
One week later, Commerce issued the Antidumping Duty
Order.
II.
A.
On October 2, 2013, Commerce initiated the first ad-
ministrative review of the Antidumping Duty Order. The
review covered the period February 16, 2012, through July
31, 2013. Initiation of Antidumping and Countervailing
Duty Admin. Reviews and Req. for Revocation in Part,
78 Fed. Reg. 60,834, 60,836 (Dep’t of Commerce Oct. 2,
2013). The purpose of the review was to determine
whether Hyundai had sold large power transformers in the
United States at less than fair value during the period of
review. 2 Consistent with its standard antidumping ques-
tionnaire, Commerce asked Hyundai to report whether it
had incurred commissions for sales of the subject merchan-
dise in the United States or in its home market. J.A. 169,
171–72. In response, Hyundai reported that it had in-
curred commissions on U.S. sales but not on sales in the
Korean market. Id.
On September 24, 2014, Commerce published the pre-
liminary results of its 2012–2013 review. Large Power
Transformers from the Republic of Korea, 79 Fed. Reg.
57,046 (Dep’t of Commerce Sept. 24, 2014) (prelim. admin.
review) (“Preliminary Results”); see Mem. from David Cor-
dell, Int’l Trade Analyst, to the File, Analysis of Data Sub-
mitted by [Hyundai] in the Prelim. Results of the 2012–
2013 Admin. Review of the Antidumping Duty Order on
Large Power Transformers from the Republic of Korea,
2 Hyosung Corp. was a party to the first administra-
tive review and, along with HICO America Sales and Tech-
nology, Inc. (collectively, “Hyosung”), was a defendant in
the proceedings in the Court of International Trade. Hy-
osung is not a party to this appeal, however.
6 ABB, INC. v. UNITED STATES
(Dep’t of Commerce Sept. 18, 2014) (“Preliminary Analysis
Memorandum”). J.A. 173–74. In the Preliminary Analysis
Memorandum, Commerce stated that Hyundai had re-
ported no commissions in the home market, and that the
only commissions paid were “incurred in the United
States.” J.A. 182, 185. 3 Commerce made no explicit refer-
ence in the Preliminary Analysis Memorandum to granting
or denying a commission offset under 19 C.F.R.
§ 351.410(e). 4 Commerce stated, however, that it was in-
cluding “COMMU” under the programming field
“USCOMM” for “U.S. Commission Expenses.” J.A. 182. 5
3 Commerce used constructed export price in accord-
ance with 19 U.S.C. § 1677a(b) because Hyundai’s U.S.
sales were made through a seller affiliated with the pro-
ducer in Korea. Preliminary Analysis Memorandum, J.A.
180 & Appellants Br. 5.
4 Section 351.410(e) states that Commerce “normally
will make a reasonable allowance for other selling expenses
if the Secretary makes a reasonable allowance for commis-
sions in one of the markets under consideration[], and no
commission is paid in the other market under considera-
tion.” As discussed in more detail below, the regulation im-
plements 19 U.S.C. § 1677b(a)(6)(C)(iii), the statute
providing for circumstances of sale adjustments to normal
value.
5 In the standard dumping questionnaire, field
“COMMU” is defined as “unit cost of commissions paid to
selling agents and other intermediaries.” J.A. 171. Field
“USCOMM,” is “meant to capture all commissions on [ex-
port price] sales, and those on [constructed export price]
sales, incurred outside of the [United States].” Mem. from
Abdelali Elouaradia, Acting Office Director, to James
Maeder, Sr. Office Director, Am. Final Results of the Anti-
dumping Duty Admin. Review of Large Power Transform-
ers from the Republic of Korea; 2012–2013: Allegations of
ABB, INC. v. UNITED STATES 7
This programming language evidently effected such an off-
set. See ABB Br. 21, 24.
Commerce issued the final results of its 2012–2013 re-
view on March 31, 2015. Large Power Transformers from
the Republic of Korea, 80 Fed. Reg. 17,034 (Dep’t of Com-
merce Mar. 31, 2015) (final admin. review) (“Final Re-
sults”). In the Final Results, Commerce determined that
Hyundai’s weighted-average dumping margin for the
2012–2013 period of review was 9.53 percent. Id. at 17,035.
In response, ABB filed an allegation of ministerial er-
ror in the Final Results, requesting that Commerce take
Hyundai’s U.S. commissions and other expenses into ac-
count in the calculation of constructed export price profit,
as required by 19 U.S.C. § 1677a(d)(3). 6 J.A. 216–20.
Ministerial Errors at 3 (Dep’t of Commerce Apr. 28, 2015)
(“Amended Final Results Memorandum”), J.A. 232.
6 Subsection (d) of 19 U.S.C. § 1677a states, in rele-
vant part:
(d) Additional adjustments to constructed export
price
For purposes of this section, the price used to es-
tablish constructed export price shall also be re-
duced by–
(1) the amount of any of the following expenses gen-
erally incurred by or for the account of the producer
or exporter, or the affiliated seller in the United
States, in selling the subject merchandise . . .
(A) commissions for selling the subject mer-
chandise in the United States; . . . and
8 ABB, INC. v. UNITED STATES
Commerce agreed that this was indeed a ministerial error
and stated that it intended to correct it. Amended Final
Results Memorandum, at 1–2, J.A. 230–31. Commerce also
indicated that it had erred in including commissions that
Hyundai had incurred in the United States in the program-
ming field USCOMM. “Instead, these expenses should
have been captured in field CEPOTHER,” which “is meant
to capture any other CEP expenses (incurred in the U.S.)
commissions, direct selling, further manufacturing, etc.”
Id. at 3, J.A. 232; see Large Power Transformers from the
Republic of Korea, 80 Fed. Reg. 26,001 (Dep’t of Commerce
May 6, 2015) (am. final admin. review) (“Amended Final
Results”). In its Amended Final Results, Commerce deter-
mined Hyundai’s dumping margin to be 13.82 percent.
Amended Final Results at 26,002.
Hyundai then filed its own allegation of ministerial er-
ror, noting that under Commerce’s analysis in the
Amended Final Results, Hyundai was no longer receiving
a home market commission offset because Commerce con-
siders field USCOMM in calculating such an offset, but not
field CEPOTHER. J.A. 235–38. Responding, Commerce
agreed with Hyundai that “by including commissions in the
CEPOTHER field we inadvertently failed to account for the
commission offset as we originally intended (and did) in the
preliminary and final results.” Large Power Transformers
from the Republic of Korea, 80 Fed. Reg. 35,628, 35,629
(Dep’t of Commerce June 22, 2015) (second am. final ad-
min. review) (“Second Amended Final Results”). In a mem-
orandum to the file, Commerce explained that it had made
(3) the profit allocated to the expenses described in
paragraph[] (1) . . . .
ABB did not take issue with Commerce’s deduction of
Hyundai’s U.S. commission expenses to establish con-
structed export price under § 1677a(d)(1).
ABB, INC. v. UNITED STATES 9
the following corrections in response to Hyundai’s claim of
ministerial error:
We first moved U.S. commission expenses (field
COMMU) from field “CEPOTHR” [sic] back to field
“USCOMM” in the U.S. Margin Program. . . .
We next added field USCOMM to the constructed
export price (CEP) profit calculation, and we de-
ducted it from the U.S. net price calculation . . . to
ensure that all U.S. selling expenses are accounted
for in the calculation of CEP Profit, which was the
basis of Petitioner’s initial ministerial allega-
tion. . . .
Finally we made . . . changes to the Macro Program
to ensure that the U.S. commissions (field
USCOMM), which was deducted from the CEP
string, is not added back into normal value.
Mem. from David Cordell, Int’l Trade Compliance Analyst,
to the File, Analysis of Data Submitted by [Hyundai] in the
Second Am. Final Results of the Antidumping Duty Admin.
Review of Large Power Transformers from the Republic of
Korea; 2012–2013 (Dep’t of Commerce June 15, 2015) (“Sec-
ond Amended Final Results Memorandum”). J.A. 243–44.
In the Second Amended Final Results, Hyundai’s weighted-
average dumping margin for the 2012–2013 period of re-
view was 12.36 percent. Second Amended Final Results at
35,269.
B.
ABB filed suit in the Court of International Trade chal-
lenging, among other things, Commerce’s grant of a home
market commission offset to Hyundai. ABB, Inc. v. United
States, 190 F. Supp. 3d 1159, 1164 (Ct. Int’l Trade 2016)
(“ABB I”). Hyundai received a commission offset to normal
value when Commerce “moved U.S. commission expenses
(field COMMU) from field ‘CEPOTHR’ [sic] back to field
‘USCOMM’ in the U.S. Margin Program.” J.A. 243. ABB
10 ABB, INC. v. UNITED STATES
argued that because Hyundai incurred its U.S. commission
expenses inside the United States, Hyundai should not re-
ceive a commission offset to normal value. ABB I,
190 F. Supp. 3d at 1182. Hyundai responded that ABB had
waived any challenge to the commission offset by failing to
exhaust its administrative remedies before Commerce af-
ter receiving the Preliminary Results and the Preliminary
Analysis Memorandum. See id. at 1182–83. 7 ABB replied
that it timely raised the issue because Commerce an-
nounced changes to its treatment of Hyundai’s U.S. com-
missions in the Amended Final Results and the Second
Amended Final Results. Id. at 1183.
The Court of International Trade determined in ABB I
that Commerce’s determination to grant a home market
commission offset was inconsistent with Commerce’s find-
ing that Hyundai’s commission expenses “were incurred in
the United States.” Id. at 1183 (quoting Preliminary Anal-
ysis Memorandum at 10, 13). The court also found the Pre-
liminary Analysis Memorandum “devoid of any reference
to a commission offset.” Id. The court continued, noting
that by excluding U.S. commissions from the field that
would normally include them, CEPOTHER, and instead in-
cluding them in the USCOMM field in the Second Amended
Final Results, Commerce suggested that it treated the com-
missions as if they were incurred outside the United States.
Id. The court also noted that the margin calculation pro-
gram accompanying the Second Amended Final Results
7 As noted above, it was not until the Final Results
were issued that ABB alleged error. Even then, ABB
claimed ministerial error only in Commerce’s failure to
take Hyundai’s U.S. commissions and other expenses into
account in the calculation of constructed export price profit,
as required by 19 U.S.C. § 1677a(d)(3). ABB did not allege
error in the granting of a home market commission offset
under 19 C.F.R. § 351.410(e).
ABB, INC. v. UNITED STATES 11
itself indicated that CEPOTHER would include con-
structed export price commissions incurred in the United
States and that the description for the USCOMM field spe-
cifically stated “[d]o NOT include commissions on [con-
structed export price] sales incurred in the U.S. here.” Id.
(quoting U.S. Margin Program Output (Second Amended
Final Results) (Dep’t of Commerce June 2015)). “Thus,” the
court concluded, “Commerce’s treatment of U.S. commis-
sions . . . [was] inconsistent with its characterization of
those commissions in the Second Amended Final Results.”
Id. at 1183–84.
The Court of International Trade also found that ABB
did not exhaust its administrative remedies regarding the
commission offset issue but that, in the circumstances of
the case, exhaustion was not required:
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 di-
verging from that policy. 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 administra-
tive remedies in this case when Commerce failed to
adequately address its treatment of commission
offsets in the preliminary determination. Such no-
tice 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 dif-
ferent treatment.
ABB I, 190 F. Supp. 3d at 1184 (citations omitted).
The court remanded for Commerce “to explain its treat-
ment of the respondents’ U.S. commissions, the record ba-
sis for such treatment, whether such U.S. commissions
12 ABB, INC. v. UNITED STATES
result in the granting of commission offsets, and the legal
and factual basis for the granting or denial of the commis-
sion offsets.” Id.
C.
As discussed in more detail below, on remand Com-
merce concluded that the evidence indicated that Hyun-
dai’s U.S. commissions were incurred inside the United
States and that, as a result, a home market commission
offset should not have been granted. Final Results of Re-
determination Pursuant to Court Remand, 1:15-cv-00108-
MAB, ECF No. 105, (“Remand Results”), J.A. 81. As a re-
sult, Commerce determined Hyundai’s dumping margin to
be 13.82 percent. J.A. 123–24. The Court of International
Trade sustained the Remand Results in ABB II. The court
determined that Commerce properly deducted Hyundai’s
U.S. commissions under § 1677a(d)(1)(A) to arrive at con-
structed export price. See ABB II, 273 F. Supp. 3d at 1194.
The court also determined that Commerce did not err in
not granting a home market commission offset under 19
U.S.C. § 1677b(a)(6)(C)(iii) and its implementing regula-
tion, 19 C.F.R. § 351.410(e). Id. at 1197.
Hyundai appeals, arguing that the Court of Interna-
tional Trade (1) abused its discretion by excusing ABB’s
failure to exhaust its administrative remedies, and
(2) erred when it sustained Commerce’s denial of a commis-
sion offset. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(5). We address the exhaustion issue
first.
DISCUSSION
I.
Congress has directed the Court of International Trade
to, “where appropriate, require the exhaustion of adminis-
trative remedies.” 28 U.S.C. § 2637(d). As noted, in this
case, the Court of International Trade found that ABB had
not exhausted its administrative remedies with respect to
ABB, INC. v. UNITED STATES 13
its argument concerning the home market commission off-
set that Commerce granted Hyundai in the Second
Amended Final Results. ABB I, 190 F. Supp. 3d at 1184.
Nevertheless, the court determined that it would not “[be]
appropriate to require ABB to have exhausted its adminis-
trative remedies . . . when Commerce failed to adequately
address its treatment of commission offsets in the prelimi-
nary determination.” Id. Citing Boomerang Tube LLC v.
United States, 856 F.3d 908 (Fed. Cir. 2017), Hyundai ar-
gues that the Court of International Trade erred in waiving
ABB’s failure to exhaust its administrative remedies.
Therefore, according to Hyundai, we should vacate the de-
cisions of the court in ABB I and ABB II with respect to
Hyundai and reinstate the Second Amended Final Results.
Appellants Br. 14–18. We disagree.
We have stated that “the Court of International
Trade . . . enjoys discretion to identify circumstances where
exhaustion of administrative remedies does not apply.”
Consol. Bearings Co. v. United States, 348 F.3d 997, 1003
(Fed. Cir. 2003) (citing Cemex, S.A. v. United States, 133
F.3d 897, 905 (Fed. Cir. 1998)); see China Kingdom (Bei-
jing) Imp. & Exp. Co. v. United States, No. 2018-1375,
2019 WL 1030071, at *6 (Fed. Cir. Mar. 5, 2019) (“[Sec-
tion] 2637(d) affords the [Court of International Trade] dis-
cretion through its inclusion of its ‘where appropriate’
clause.” (citations omitted)). Accordingly, we review the
Court of International Trade’s exhaustion determination
for an abuse of discretion. See China Kingdom, 2019 WL
1030071, at *5. We conclude that, in this case, the court
did not abuse its discretion in determining that it would
not be appropriate to require ABB to have exhausted its
administrative remedies. In our view, the circumstances
identified by the court in ABB I—Commerce’s divergence
from its general policy with respect to the treatment of U.S.
commissions incurred inside and outside the United States
and its failure to discuss the implications of this divergence
for this case—constituted “a strong contrary reason” for
14 ABB, INC. v. UNITED STATES
departing from the mandate of § 2637(d). See Corus Staal
BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007)
(“Although [the] statutory injunction is not absolute, it in-
dicates a congressional intent that, absent a strong con-
trary reason, the court should insist that parties exhaust
their remedies before the pertinent administrative agen-
cies.” (emphasis added)). In other words, we conclude that
legitimate, prudential concerns warranted both waiver of
ABB’s failure to exhaust its administrative remedies and a
remand to Commerce for further consideration of the issue.
Boomerang Tube, upon which Hyundai relies, also in-
volved an antidumping investigation. In that case, at the
request of the petitioners, including Boomerang Tube LLC
(“Boomerang”) and United States Steel Corporation (“U.S.
Steel”), Commerce initiated an investigation into whether
oil country tubular goods (“OCTGs”) from Saudi Arabia and
other countries were being sold for less than fair value in
the United States. Boomerang Tube, 856 F.3d at 909; see
also Boomerang Tube LLC v. United States, 125 F.
Supp. 3d 1357, 1359 (Ct. Int’l Trade 2015). For purposes of
the investigation, Commerce selected Duferco SA
(“Duferco”), the Saudi Arabian exporter for Jubail Energy
Services Company (“JESCO”), as the sole mandatory re-
spondent, JESCO being a voluntary respondent. Boomer-
ang Tube, 856 F.3d at 909–10. JESCO had no viable home
market sales so, in Commerce’s preliminary determina-
tion, Commerce determined constructed value using sales
of OCTGs by Saudi Steel Pipes Company (“Saudi Steel”)
under 19 U.S.C. § 1677b(e)(2)(B)(iii), which provides for us-
ing “any other reasonable method” in determining con-
structed value when normal value cannot be determined.
Id. at 910 (quoting 19 U.S.C. § 1677b(e)(2)(B)(iii)); 19
U.S.C. § 1677b(a)(4). Subsequently, Boomerang chal-
lenged Commerce’s reliance on the financial statements of
Saudi Steel. Id. Duferco and JESCO argued in response
that Commerce should continue to use Saudi Steel’s finan-
cial statements or the financial statements of another
ABB, INC. v. UNITED STATES 15
Saudi entity. In the alternative, Duferco and JESCO ar-
gued that Commerce should calculate constructed value
using the profit data from JESCO’s sales of OCTGs to its
affiliated Colombian distributor, which JESCO had previ-
ously submitted to Commerce. Id. at 910–11. In its rebut-
tal brief, Boomerang argued against using JESCO’s
Colombian sales. Id. at 911. It did not argue, however,
that the affiliated Colombian distributor was a member of
the Duferco entity, or that the Colombian sales were intra-
company sales. Id.
In its final determination, Commerce calculated con-
structed value profit using JESCO’s sales to its affiliated
Colombian distributor. It did so because it viewed those
sales as “the best available option” for making the calcula-
tion. Id. After correcting for a ministerial error, Commerce
issued an amended final determination that imposed no
antidumping duties because the dumping margin was de
minimis. On appeal to the Court of International Trade,
Boomerang and U.S. Steel argued that JESCO’s sales to
the Colombian distributor were intra-company transfers
and therefore not an appropriate basis to calculate con-
structed value profit. Id. The Court of International Trade
determined that although Boomerang and U.S. Steel did
not make this argument before Commerce, requiring ex-
haustion was not warranted because Boomerang and U.S.
Steel did not know Commerce was considering using the
Colombian sales until it issued its final determination. Id.
The court therefore ruled that it would “adjudicate[] on the
merits the claims of all plaintiffs in th[e] litigation.” Id. at
912 (quoting 125 F. Supp. 3d at 1363). Addressing the mer-
its, the Court of International Trade affirmed Commerce’s
treatment of the Colombian distributor as a separate en-
tity. Id. Accordingly, it left in place Commerce’s determi-
nation of a de minimis dumping margin. Id.
On appeal, this court held that the Court of Interna-
tional Trade erred in waiving the exhaustion requirement.
Specifically, we determined that the court abused its
16 ABB, INC. v. UNITED STATES
discretion in two respects. We stated first that the court’s
decision was “legally erroneous” to the extent that it stood
for the proposition that Commerce must expressly notify
parties that it intends to change its methodology between
its preliminary and final determination, despite the inclu-
sion of the relevant data in the record and the advancement
of arguments related to that data before Commerce. Id. at
913. Second, we stated that the Court of International
Trade’s ruling was based upon the clearly erroneous find-
ing of fact that Boomerang and U.S. Steel did not have an
opportunity to raise their intra-company transfer objection
to the use of the Colombian data. Noting that it was “un-
disputed that the data regarding JESCO’s transactions
with the affiliated distributor were in the record prior to
Commerce’s preliminary determination,” we stated that
Boomerang and U.S. Steel “either knew or should have
known” that Commerce might consider the data. Id. We
observed that Boomerang’s rebuttal brief to Commerce re-
vealed that Boomerang recognized and objected to
JESCO’s suggestion to use the Colombian data for con-
structed value profit, but that Boomerang did not argue
that this was an intra-company transfer. See id. Thus, we
found that Boomerang’s and U.S. Steel’s intra-company
transfer argument was not exhausted and should not have
been considered by the Court of International Trade. Id.
We therefore held that the court should have dismissed
Boomerang and U.S. Steel’s appeal without reaching the
merits and that it abused its discretion by failing to do so.
We accordingly vacated the court’s decision and remanded
for further proceedings consistent with our opinion.
Our decision in Boomerang Tube rested on the deter-
mination that the Court of International Trade’s decision
with respect to waiver was based upon legal error and a
clearly erroneous finding of material fact, neither of which
exists here. Rather, in this case, the court exercised its dis-
cretion to excuse ABB’s failure to exhaust because the Pre-
liminary Results and Preliminary Analysis Memorandum
ABB, INC. v. UNITED STATES 17
showed that Commerce was diverging without adequate
explanation from its usual treatment of commissions paid
on U.S. sales. See Preliminary Results, 79 Fed. Reg. at
57,046; Preliminary Analysis Memorandum at J.A. 182,
185; Tung Mung Dev. Co. v. United States, 354 F.3d 1371,
1379 (Fed. Cir. 2004) (“[W]hile an agency is free to change
its policy based on either a change of circumstances or a
changed view of the public interest, ‘an agency [that]
chang[es] its course must supply a reasoned analysis’ for
the change.” (quoting Motor Vehicle Mfrs. Ass’n of United
States v. State Farm, 463 U.S. 29, 57 (1983))). Boomerang
Tube plainly is different from this case.
We turn now to the merits of Hyundai’s appeal.
II.
A.
We review a decision of the Court of International
Trade de novo, applying anew the standard used by that
court in reviewing the decision of Commerce. Downhole
Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 1373
(Fed. Cir. 2015) (citing Mittal Steel Point Lisas Ltd. v.
United States, 548 F.3d 1375, 1380 (Fed. Cir. 2008)). We
uphold Commerce’s determinations unless they are “un-
supported by substantial evidence on the record, or other-
wise not in accordance with law.” Id. (quoting 19 U.S.C.
§ 1516a(b)(1)(B)(i)). Although we review the decisions of
the Court of International Trade de novo, we give great
weight to the informed opinion of the Court of Interna-
tional Trade and it is nearly always the starting point of
our analysis. Nan Ya Plastics Corp. v. United States, 810
F.3d 1333, 1341 (Fed. Cir. 2016).
B.
In the Remand Results, Commerce found that Hyun-
dai’s U.S. commissions were incurred only inside the
United States, which Hyundai does not dispute. Hyundai
also does not dispute that Commerce properly deducted the
18 ABB, INC. v. UNITED STATES
commissions incurred inside the United States from the
price used in calculating constructed export price under 19
U.S.C. § 1677a(d)(1)(A). Rather, Hyundai challenges Com-
merce’s refusal to provide a commission offset as a circum-
stances of sale adjustment to normal value under
19 U.S.C. § 1677b(a)(6)(C)(iii) and 19 C.F.R. § 351.410(e).
Section 1677b(a) of 19 U.S.C. states:
In determining under this subtitle whether subject
merchandise is being, or is likely to be, sold at less
than fair value, a fair comparison shall be made be-
tween the export price or constructed export price
and normal value. In order to achieve a fair com-
parison with the export price or constructed export
price, normal value shall be determined as fol-
lows . . . .
Subsection (6)(C)(iii) of § 1677b(a) provides for an adjust-
ment to normal value, i.e., the price at which the foreign
product is sold in the exporting country, such that normal
value “shall be . . . increased or decreased by the amount of
any difference (or lack thereof)” between normal value and
export price or constructed export price due to “other dif-
ferences in the circumstances of sale.”
The regulation set forth at 19 C.F.R. § 351.410, titled
“Differences in circumstances of sale,” implements
§ 1677b(a)(6)(C)(iii). It states:
(e) Commissions paid in one market. The Secretary
normally will make a reasonable allowance for
other selling expenses if the Secretary makes a rea-
sonable allowance for commissions in one of the
markets under consideration[], and no commission
is paid in the other market under consideration.
The Secretary will limit the amount of such allow-
ance to the amount of the other selling expenses
ABB, INC. v. UNITED STATES 19
incurred in the one market or the commissions al-
lowed in the other market, whichever is less.
In the Remand Results, Commerce determined that
“when the commission expenses on U.S. sales are incurred
in the United States and there are no commission expenses
in the home market, which is the case here, such commis-
sion expenses are treated as CEP selling expenses and the
commission expenses and allocated profit get deducted
from the price used to establish CEP [under § 1677a(d)],
and . . . there are no home market commission offsets
granted.” J.A. 118. “It is because such commissions for
U.S. sales are only associated with economic activities oc-
curring in the United States,” Commerce added. J.A. 118–
19. Commerce stated that although the statute and regu-
lations do not distinguish directly between commissions in-
curred inside or outside the United States, Commerce
takes into account the language of the statute and the SAA,
which does consider whether commissions were paid in the
United States. J.A. 115–16. 8 Specifically, the SAA pro-
vides:
[U]nder [19 U.S.C. § 1677a(d)], constructed export
price will be calculated by reducing the price of the
first sale to an unaffiliated customer in the United
States by the amount of the following expenses
(and profit) associated with economic activities
8 The SAA “shall be regarded as an authoritative ex-
pression by the United States concerning the interpreta-
tion and application of the Uruguay Round Agreements
and this Act in any judicial proceeding in which a question
arises concerning such interpretation or application.”
19 U.S.C. § 3512(d).
20 ABB, INC. v. UNITED STATES
occurring in the United States: (1) any commissions
paid in selling the subject merchandise . . . .
. . . Commerce is directed by [19 U.S.C.
§ 1677a(d)(1)(A)] to deduct commissions from con-
structed export price, but only to the extent that
they are incurred in the United States on sales of
the subject merchandise.
....
. . . In constructed export price situations Com-
merce will deduct direct expenses incurred in the
United States from the starting price in calculating
the constructed export price. However, direct ex-
penses and assumptions of expenses incurred in
the foreign country on sales to the affiliated im-
porter will form a part of the circumstances of sale
adjustment.
SAA at 823, 828, 1994 U.S.C.C.A.N. at 4163, 4167 (empha-
sis added).
Commerce explained that, “[i]n light of the statute and
regulations,” its practice has been “to distinguish two types
of commissions paid on U.S. sales.” J.A. 108. The first type
is commissions incurred inside the United States, such as
those in this case, for which Commerce arrives at con-
structed export price by deducting commissions and any re-
lated profit from the price used to establish constructed
export price. Id. 9 In the case of commissions paid outside
9 Commerce stated that in the standard margin pro-
gram, commission expenses on U.S. sales incurred in the
United States are included in field CEPOTHER, which is,
along with a field for its corresponding profit, deducted
from the U.S. price used to establish constructed export
price, as required by 19 U.S.C. § 1677a(d)(1)(A) and (3).
J.A. 112–13.
ABB, INC. v. UNITED STATES 21
the United States on U.S. sales, and there were no such
commissions here, Commerce explained that it “adds such
commission expenses to normal value and offsets differ-
ences in home market commission expenses and such U.S.
commission expenses incurred outside the United States, if
any.” Id. 10 Commerce stated that, by granting home mar-
ket commission offsets in the form of an additional adjust-
ment to normal value when U.S. commission expenses for
the respective U.S. sales are incurred outside the United
States, “a more appropriate apples-to-apples comparison
between two markets can be achieved because such offsets
capture the corresponding economic activities and associ-
ated expenses in the home market for the matching home
market sales, while the commission expenses for U.S. sales
[incurred outside of the United States] are added to normal
value.” Id. at 109–10. Commerce stated:
10 According to Commerce, commission expenses on
U.S. sales incurred outside the United States are included
in field USCOMM. Commerce explained that its standard
margin program uses three sequential conditions to deter-
mine if commission offsets will be granted or denied in the
calculation of normal value. J.A. 113. First, when home
market commission expenses (field “COMMDOL” in the
program) exceed USCOMM, a home market commission
offset is granted to increase normal value, and thereby in-
crease the dumping margin. When USCOMM is greater
than COMMDOL, a home market commission offset is
granted to decrease normal value, and thereby decrease
the dumping margin. When USCOMM and COMMDOL
are equal, there is no commission offset. Thus, when, as in
this case, there are no U.S. commission expenses incurred
outside the United States (USCOMM is zero), and no home
market commissions are incurred (COMMDOL is zero),
there are no commission offsets granted. See J.A. 113–14.
22 ABB, INC. v. UNITED STATES
Because commissions incurred in the United States
are not related to economic activities in the home
market, there is no basis for granting a home mar-
ket commission offset. Therefore, when commis-
sions are incurred in the United States, our normal
practice is to treat them as CEP selling expenses
and to deduct [them] from the U.S. sales, with
profit, while not granting a commission offset to
normal value.
J.A. 111. Thus, in the Remand Results, Commerce con-
strued 19 U.S.C. § 1677b(a)(6)(C)(iii) as not requiring a cir-
cumstances of sale adjustment in the form of a commission
offset when there are no commission expenses incurred in
the home market and no commission expenses (on U.S.
sales) incurred outside the United States, because
§ 1677a(d) provides a specific way for Commerce to take
into account commission expenses incurred inside the
United States, the only type of commission expenses at is-
sue in this case. Id. at 107–16. Commerce stated that its
interpretation of § 1677b(a)(6)(C)(iii) is consistent with the
intent of the statute and the SAA, “thereby making a fair
and equitable comparison between normal value and U.S.
price through the granting of home market commission off-
sets when commissions on U.S. sales are incurred outside
the United States while denying such offsets when commis-
sions on U.S. sales are incurred inside the United States,
because such commissions incurred in the United States
are treated as CEP selling expenses, pursuant to
[19 U.S.C. § 1677a(d)].” Id. at 116. Specifically addressing
§ 351.410(e), Commerce stated that “[19 U.S.C.
§ 1677b](a)(6)(C)(iii) . . . , which is the legal basis for the
regulation, requires the Department to make adjustments
to normal value based on other differences in the circum-
stances of sale.” Commerce continued, stating that alt-
hough § 351.410(e) does not explicitly discuss an
adjustment regarding a geographic distinction of U.S.
ABB, INC. v. UNITED STATES 23
commissions, Commerce’s practice with regard to commis-
sion offsets is consistent with § 1677b(a)(6)(C)(iii). Id.
C.
As noted, in ABB II, the Court of International Trade
sustained Commerce’s Remand Results. 273 F. Supp. 3d at
1200. The court began its analysis by noting that, although
19 U.S.C. § 1677a(d)(1)(A) 11 does not contain a geograph-
ical distinction on where commissions must be incurred,
Commerce’s implementing regulation references commis-
sions that are associated with commercial activity occur-
ring in the United States. Id. at 1194. The court further
noted that the regulation provides that such commissions
be treated as adjustments in the determination of con-
structed export price. Id. That regulation, set forth at
19 C.F.R. § 351.402(b), provides that “[i]n establishing con-
structed export price [under 19 U.S.C. § 1677a(d)], the Sec-
retary will make adjustments for expenses associated with
commercial activities in the United States that relate to the
sale to an unaffiliated purchaser, no matter where or when
paid.” (Emphasis added.)
The Court of International Trade further noted that
the SAA, which forms the rationale for the regulation,
states that “[i]n constructed export price situations Com-
merce will deduct direct expenses incurred in the United
States from the starting price in calculating the con-
structed export price. However, direct expenses and as-
sumptions of expenses incurred in the foreign country on
sales to the affiliated importer will form a part of the cir-
cumstances of sale adjustment [provided for in
19 U.S.C. § 1677b(a)(6)(C)(iii)].” ABB II, 273 F. Supp. 3d
at 1195 (quoting SAA at 828, 1994 U.S.C.C.A.N. at 4167
(emphasis in ABB II)). Thus, the court observed, the “SAA
11 Subsection (d) of 19 U.S.C. § 1677a is titled “Addi-
tional adjustments to constructed export price.”
24 ABB, INC. v. UNITED STATES
limits the circumstances of sale adjustment, including the
home market commissions offset, to direct expenses and as-
sumptions of expenses incurred in the foreign country on
sales to the affiliated importer.” Id. The Court of Interna-
tional Trade concluded its examination of the circum-
stances of sale adjustment by quoting the following
statement from the SAA:
[19 U.S.C. § 1677b(a)(6)(C)] authorizes Commerce
to adjust normal value to account for other differ-
ences . . . between export price (or constructed ex-
port price) and normal value that are wholly or
partly due to differences in quantities, physical
characteristics, or other differences in the circum-
stances of sale. With respect to each of these adjust-
ments, as well as all other adjustments, Commerce
will ensure that there is no overlap or double-count-
ing of adjustments.
Id. (quoting SAA at 828, 1994 U.S.C.C.A.N. at 4167)
(emphasis in ABB II).
Having considered 19 U.S.C. § 1677b(a)(6)(C)(iii), the
Court of International Trade turned to Hyundai’s argu-
ment that it was entitled to a circumstances of sale adjust-
ment to normal value under 19 C.F.R. § 351.410(e). See
ABB II, 273 F. Supp. 3d at 1196–97. The court rejected this
argument. “Commerce,” the Court of International Trade
said, “correctly stated [in the Remand Results] that
§ 1677b(a)(6)(C)(iii), the statutory basis for 19 C.F.R.
§ 351.410(e), requires [Commerce] ‘to make adjustments to
normal value based on other differences in the circum-
stances of sale.’” Id. (quoting J.A. at 115–16 (first emphasis
added, second emphasis in ABB II)). The court noted that
the commissions in question were incurred in the United
States on constructed export price sales, yet Hyundai
sought an adjustment under provisions for calculating nor-
mal value “instead of relying on the statutory provision
that governs constructed export price calculation, the
ABB, INC. v. UNITED STATES 25
regulation implementing that provision, and its legislative
history.” Id. at 1196 (emphasis added). The Court of In-
ternational Trade thus endorsed Commerce’s decision in
the Remand Results to not grant a commission offset to nor-
mal value where there were no commission expenses in-
curred in the home market on home market sales and no
commission expenses incurred outside the United States
on U.S. sales, but only commission expenses incurred in-
side the United States on U.S. sales.
D.
Our review of Commerce’s interpretation and imple-
mentation of a statutory scheme is governed by Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837 (1984). Under Chevron’s two-part framework, we
first ask “whether Congress has directly spoken to the pre-
cise question at issue.” Id. at 842. If it has, “that is the end
of the matter,” and we “must give effect to the unambigu-
ously expressed intent of Congress.” Id. at 842–43. How-
ever, “if the statute is silent or ambiguous with respect to
the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of
the statute.” Id. at 843. A permissible construction of a
statute is one that is reasonable. Dongbu Steel Co. v.
United States, 635 F.3d 1363, 1369–70 (Fed. Cir. 2011).
The “precise question” at issue in this case is whether,
under 19 U.S.C. § 1677b(a)(6)(C)(iii), Commerce should ad-
just normal value through a commission offset, when no
commission expenses are incurred on home market sales
and no commission expenses are incurred outside the
United States on U.S. sales, but commission expenses are
incurred inside the United States on constructed export
price sales in the United States. The language of
19 U.S.C. § 1677b(a)(6)(C)(iii), as well as the analysis of
Commerce in the Remand Results and the analysis of the
Court of International Trade in ABB II, make clear that
Congress has not spoken to this question. Indeed, on
26 ABB, INC. v. UNITED STATES
appeal neither Hyundai, nor ABB, nor the government ar-
gues otherwise. Thus, we must determine whether Com-
merce’s construction of 19 U.S.C. § 1677b(a)(6)(C)(iii) in
this case was reasonable.
Hyundai argues that Commerce’s approach is unrea-
sonable because “it results in asymmetric adjustments that
arbitrarily increase dumping margins and causes similar
situations to be treated differently.” Appellants Br. 20. In
making this argument, Hyundai starts from the premise
that, regardless of whether an adjustment for expenses is
made directly to export price/constructed export price or to
normal value, or whether an adjustment is made by adjust-
ing normal value to compensate for the differences between
the expenses incurred on export price/constructed export
price sales and sales used as normal value, a “symmetrical
adjustment” must be made. Appellants Br. 21–22. Accord-
ing to Hyundai, this is consistent with the statutory re-
quirement that “a fair comparison shall be made between
the export price or constructed export price and normal
value.” Id. at 22 (citing 19 U.S.C. § 1677b(a)). Hyundai
also argues that this symmetry is required by Commerce’s
regulation at 19 C.F.R. § 351.410(e), which states that
“[t]he Secretary normally will make a reasonable allow-
ance for other selling expenses if the Secretary makes a
reasonable allowance for commissions in one of the mar-
kets under consideration[], and no commission is paid in
the other market under consideration.” Appellants Br. 19.
Most importantly for Hyundai, the regulation sets forth
only a single condition for making a commission offset: “a
reasonable allowance [is made] for commissions in one of
the markets under consideration[], and no commission is
paid in the other market under consideration.” See Appel-
lants Br. 24 (quoting 19 C.F.R. § 351.410(e)).
Hyundai seeks to buttress its argument by positing six
scenarios that it says result from Commerce’s “interpreta-
tion of the commission offset regulation” in the Remand
ABB, INC. v. UNITED STATES 27
Results. Appellants Br. 26. 12 Hyundai takes the position
that the only one of these scenarios in which a commission
offset is not applied to normal value is the scenario that
applies in this case, Scenario 6, where no commissions were
incurred in the home market or outside the United States
on U.S. sales, but commissions were incurred inside the
United States on constructed export price sales in the
United States. Hyundai argues that Commerce’s approach
in the Remand Results thus results in “disparate treatment
12 Hyundai presents the following six scenarios:
Scenario 1: “U.S. EP Sale–Commissions Are In-
curred in the Country of Export on Sales Used
as Normal Value–No Commissions Are Incurred
on U.S. Sales”;
Scenario 2: “U.S. EP Sale–No Commissions Are
Incurred in the Country of Export on Sales Used
as Normal Value–Commissions Are Incurred
Outside the United States on U.S. Sales”;
Scenario 3: “U.S. EP Sale–No Commissions Are
Incurred in the Country of Export on Sales Used
as Normal Value–Commissions Are Incurred In-
side the United States on U.S. Sales”;
Scenario 4: “U.S. CEP Sale–Commissions Are In-
curred in the Country of Export on Sales Used
as Normal Value–No Commissions Are Incurred
on U.S. Sales”;
Scenario 5: “U.S. CEP Sale–No Commissions Are
Incurred in the Country of Export on Sales Used
as Normal Value–Commissions Are Incurred
Outside the United States on U.S. Sales”; and
Scenario 6: “U.S. CEP Sale–No Commissions Are
Incurred in the Country of Export on Sales Used
as Normal Value–Commissions Are Incurred In-
side the United States on U.S. Sales.”
Appellants Br. 26–30.
28 ABB, INC. v. UNITED STATES
of similar situations [that] is clearly unreasonable.” Appel-
lants Br. 30 (citing Dongbu Steel Co., 635 F.3d at 1372–73).
In the Remand Results, Commerce found that Hyundai
was not entitled to a circumstances of sale adjustment un-
der 19 U.S.C. § 1677b(a)(6)(C)(iii) and 19 C.F.R.
§ 351.410(e). The basis for that finding was Commerce’s
determination that § 1677a(d) provides a specific way to
take into account U.S. commission expenses that are in-
curred in the United States. Commerce’s rationale is that
when all commission expenses are incurred in the United
States and there are no commission expenses incurred in
the home market and no commission expenses incurred
outside the United States on U.S. sales for which a com-
pensation must be made, an “apples to apples comparison”
of normal value to constructed export price (after deducting
U.S.-incurred commissions) can be made without the need
for a commission offset. See J.A. 115. At the same time,
Commerce views its construction of § 351.410(e) as con-
sistent with its interpretation of the statute. As the Court
of International Trade noted, Commerce’s approach in the
Remand Results draws a distinction “between U.S. com-
missions that result in an adjustment in the determination
of constructed export price and U.S. commissions that may,
instead, result in a circumstance of sale adjustment or com-
mission offset in the determination of normal value.” ABB
II, 273 F. Supp. 3d at 1193. Like the Court of International
Trade, we conclude that Commerce’s approach represents
a reasonable construction of 19 U.S.C. § 1677b(a)(6)(C)(iii).
As noted above, the SAA states that “[i]n constructed
export price situations Commerce will deduct direct ex-
penses incurred in the United States from the starting
price in calculating the constructed export price.” SAA at
828, 1994 U.S.C.C.A.N. at 4167. “However,” the SAA con-
tinues, “direct expenses and assumptions of expenses in-
curred in the foreign country on sales to the affiliated
importer will form a part of the circumstances of sale ad-
justment.” Id. Here, there were no “direct expenses and
ABB, INC. v. UNITED STATES 29
assumptions of expenses incurred in the foreign country on
sales to the affiliated importer” to form part of a circum-
stances of sale adjustment.
Commerce’s approach is consistent with the SAA. The
approach recognizes that a circumstances of sale adjust-
ment to normal value based upon commission expenses in-
curred in the United States on constructed export price
sales is not contemplated by 19 U.S.C. § 1677b(a)(6)(C)(iii)
when, as here, there are no commission expenses incurred
on home market sales and no commission expenses in-
curred outside the United States on U.S. sales. That is be-
cause, under these circumstances, there are no “direct
expenses and assumptions of expenses in the foreign coun-
try on sales to the affiliated importer” to “form a part of the
circumstances of sale adjustment.” SAA at 828, 1994
U.S.C.C.A.N. at 4167. Moreover, once Commerce deducted
the commission expenses incurred in the United States in
calculating constructed export price, there was no differ-
ence in the circumstances of sales in the home market and
the U.S. market for which an adjustment had to be made.
That is because no commission expenses were ever in-
curred in the home market and no commission expenses
were ever incurred outside the United States on U.S. sales,
and because the commission expenses that were incurred
in the U.S. market were deducted in the calculation of con-
structed export price. In other words, the circumstances of
sales in the two markets were rendered the same–no com-
missions were paid in one market (the home market) and
the commissions that were paid in the other market (the
U.S. market) were deducted, or eliminated, in the calcula-
tion of constructed export price. The statute itself states
that a circumstances of sale adjustment is directed to
achieving a “fair comparison” between normal value and
export price/constructed export price. 19 U.S.C. § 1677b(a).
Commerce’s approach achieves that goal by rendering the
home market side of the equation and the U.S. market side
of the equation comparable.
30 ABB, INC. v. UNITED STATES
Commerce’s approach also recognizes the SAA’s com-
mand that “Commerce will ensure that there is no overlap
or double-counting of adjustments.” SAA at 828, 1994
U.S.C.C.A.N. at 4167; see also 19 C.F.R. § 351.401(b)(2)
(prohibiting the double counting of adjustments). We thus
agree with ABB, ABB Br. at 38, that to deduct the commis-
sions from Hyundai’s constructed export price sales under
19 U.S.C § 1677a(d)(1)(A) and then to account for them
again by granting a commission offset under 19 U.S.C.
§ 1677b(a)(6)(C)(iii) would constitute impermissible double
counting.
Finally, as noted above, Hyundai presents six scenarios
to support its argument that Commerce’s approach “unnec-
essarily treats one circumstance[, Scenario 6,] differently
from all [the] others and, therefore, is unreasonable.” Ap-
pellants Br. 25. Hyundai contends that Dongbu Steel
therefore requires reversal. We are not persuaded by this
argument. First, we have just explained why Commerce’s
approach in this case was reasonable. Second, Scenarios
1–5 are all based on hypothetical facts different from those
before us. Thus, they do not present the situation of similar
circumstances being treated differently. And third, Hyun-
dai’s reliance on Dongbu Steel is, in any event, misplaced.
In Dongbu Steel, Commerce had interpreted a single stat-
utory provision as having opposite meanings when applied
to antidumping investigations and administrative reviews.
635 F.3d at 1365, 1371. Under those circumstances, we
held that Commerce had failed to adequately explain why
it had interpreted the statute inconsistently. Id. at 1372–
73. We thus vacated the Court of International Trade’s de-
cision and remanded for further proceedings “to give Com-
merce the opportunity to explain its reasoning.” Id. at
1373. 13 Here, as demonstrated above, unlike in Dongbu
13 After Dongbu Steel, we upheld Commerce’s ra-
tionale for its differing interpretations in Union Steel v.
ABB, INC. v. UNITED STATES 31
Steel, in the Remand Results Commerce fully explained its
reasons and rationale for not granting Hyundai a commis-
sion offset.
CONCLUSION
For the reasons stated above, we hold that Commerce’s
determination in the Remand Results represents a permis-
sible interpretation of 19 U.S.C. § 1677b(a)(6)(C)(iii). We
therefore affirm the decision of the Court of International
Trade sustaining the Remand Results.
AFFIRMED
COSTS
Each party shall bear its own costs.
United States, 713 F.3d 1101, 1109–10 (Fed. Cir. 2013) (“No
rule of law precludes Commerce from interpreting [the
statute] differently in different circumstances as long as it
provides an adequate explanation.”).