                          Slip Op. 08-52

            UNITED STATES COURT OF   INTERNATIONAL TRADE
_______________________________
                                :
ARCELORMITTAL USA INC.,         :
                                :
                     Plaintiff, :
                                :
          v.                    :    Before: Richard K. Eaton, Judge
                                :
UNITED STATES,                  :    Court No. 06-00085
                                :
                     Defendant, :    Public Version
                                :
          and                   :
                                :
DONGBU STEEL CO., LTD., ET AL.,:
                                :
                     Def.-Ints. :
_______________________________:

[United States Department of Commerce’s final results of the
eleventh administrative review of the antidumping duty order
applicable to corrosion-resistant carbon steel flat products from
Korea, sustained.]

                                      Dated: May 15, 2008

     Stewart and Stewart (Terence P. Stewart and Wesley K.
Caine), for plaintiff.

     Gregory G. Katsas, Acting Assistant Attorney General; Jeanne
E. Davidson, Director, Patricia M. McCarthy, Assistant Director,
Commercial Litigation Branch, Civil Division, United States
Department of Justice (Stephen C. Tosini); Office of the Chief
Counsel for Import Administration, United States Department of
Commerce (Irene H. Chen), of counsel, for defendant.

     Troutman Sanders LLP (Donald B. Cameron, Julie C. Mendoza,
R. Will Planert, and Brady W. Mills), for defendant-intervenors
Union Steel Manufacturing Co., Ltd. and Dongbu Steel Co., Ltd.

     Akin, Gump, Strauss, Hauer & Feld, LLP (Spencer S. Griffith,
J. David Park, Jarrod M. Goldfeder, and Lisa W. Ross), for
defendant-intervenor POSCO.


     Eaton, Judge:   This action is before the court on plaintiff
Court No. 06-00085                                       Page 2
ArcelorMittal USA Inc.’s Rule 56.2 motion for judgment upon the

agency record.1   By its motion, plaintiff contests certain

aspects of the United States Department of Commerce’s (“Commerce”

or the “Department”) final results of the eleventh administrative

review of the antidumping duty order applicable to imports into

the United States of corrosion-resistant carbon steel flat

products (“CORE”) from Korea for the period of review August 1,

2003, through July 31, 2004.    See Certain CORE from the Republic

of Korea, 71 Fed. Reg. 7,513 (Dep’t of Commerce Feb. 13, 2006)

(eleventh admin. review), as amended by Certain CORE from the

Republic of Korea, 71 Fed. Reg. 13,692 (Dep’t of Commerce Mar.

20, 2006) (amended final results) (collectively, the “Final

Results”).   Jurisdiction lies pursuant to 28 U.S.C. § 1581(c)

(2000), and 19 U.S.C. § 1516a(a)(2)(B)(iii).   For the reasons set

forth below, Commerce’s Final Results are sustained.



                             BACKGROUND

     Plaintiff is a domestic producer of CORE.    See Pl.’s Mot. J.

Agency R. (“Pl.’s Br.”) 4.   On August 19, 1993, following its

investigation, Commerce published the antidumping duty order



     1
        During the pendency of this action, the court granted
plaintiff’s consent motion to amend the caption and all filings
in this proceeding to reflect its corporate name change, from
Mittal Steel USA Inc. to ArcelorMittal USA Inc. See
ArcelorMittal USA Inc. v. United States, Court No. 06-00085, Jan.
28, 2008 (order).
Court No. 06-00085                                        Page 3
applicable to imports into the United States of CORE from Korea.

See Certain CORE From Korea, 58 Fed. Reg. 44,159 (Dep’t of

Commerce Aug. 19, 1993) (the “CORE Order”).   On August 3, 2004,

after having conducted ten prior administrative reviews of the

CORE Order, Commerce published notice that it would consider

requests for the eleventh review.   See Opportunity to Request

Admin. Review, 69 Fed. Reg. 46,496 (Dep’t of Commerce Aug. 3,

2004) (notice).   Thereafter, on August 31, 2004, plaintiff asked

Commerce to conduct a review of the behavior and market

activities of certain Korean respondents including Pohang Iron &

Steel Co., Ltd. (“POSCO”), Dongbu Steel Co., Ltd. (“Dongbu”),

Hyundai HYSCO Co., Ltd. (“HYSCO”), and Union Steel Manufacturing

Co., Ltd. (“Union”).   The eleventh administrative review was

initiated on September 22, 2004.    See Initiation of Antidumping

and Countervailing Duty Admin. Reviews and Request for Revocation

in Part, 69 Fed. Reg. 56,745 (Dep’t of Commerce Sept. 22, 2004)

(notice).

     On February 13, 2006, Commerce published its Final Results.

See Final Results, 71 Fed. Reg. at 7,513.   Based on its analysis,

the Department assigned imports from POSCO a 2.16 percent dumping

margin; those from Union a de minimis margin;2 and those from


     2
        Under the statute, Commerce is required to “disregard any
weighted average dumping margin that is de minimis as defined in
section 1673b(b)(3) of this title.” 19 U.S.C. § 1673d(a)(4).
“[A] weighted average dumping margin is de minimis if [Commerce]
                                                   (continued...)
Court No. 06-00085                                       Page 4
Dongbu a 2.26 percent dumping margin.    See id. at 7,514.

Defendant-intervenor HYSCO received a margin of zero.    See id.



                          STANDARD OF REVIEW

     When reviewing a final antidumping determination, the court

“shall hold unlawful any determination, finding, or conclusion

found . . . to be unsupported by substantial evidence on the

record, or otherwise not 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)).   The existence of

substantial evidence is determined “by considering the record as

a whole, including evidence that supports as well as evidence

that ‘fairly detracts from the substantiality of the evidence.’”

Id. (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556,

1562 (Fed. Cir. 1984)).

     In addition, “[a]s long as the agency’s methodology and

procedures are reasonable means of effectuating the statutory

purpose, and there is substantial evidence in the record



     2
      (...continued)
determines that it is less than 2 percent ad valorem or the
equivalent specific rate for the subject merchandise.” 19 U.S.C.
§ 1673b(b)(3).
Court No. 06-00085                                      Page 5
supporting the agency’s conclusions, the court will not impose

its own views as to the sufficiency of the agency’s investigation

or question the agency’s methodology.”   Ceramica Regiomontana,

S.A. v. United States, 10 CIT 399, 404–05, 636 F. Supp. 961, 966

(1986), aff’d, 810 F.2d 1137, 1139 (Fed. Cir. 1987).



                            DISCUSSION

     Plaintiff’s motion presents four issues3 in challenging

Commerce’s Final Results.   The court is mindful that similar

issues were considered in Mittal Steel USA, Inc. (formerly

International Steel Group, Inc.) v. United States, 31 CIT __,

Slip Op. 07-117 (Aug. 1, 2007) (“Mittal”)4 (not reported in the


     3
        An additional issue was resolved by the United States
Court of Appeals for the Federal Circuit (the “Federal Circuit”)
during the pendency of plaintiff’s action. Plaintiff argued that
“safeguard” duties are “United States import duties” and
therefore that Commerce must deduct these duties in order to
accurately arrive at appropriate ex factory United States prices
for comparison with ex factory prices for comparable home market
sales. See Pl.’s Br. 45-47. As Mittal Steel USA, Inc. (formerly
International Steel Group, Inc.) v. United States, 31 CIT __,
Slip Op. 07-117 (Aug. 1, 2007) (not reported in the Federal
Supplement), acknowledged, the Federal Circuit recently held, in
Wheatland Tube Co. v. United States, 495 F.3d 1355, 1363 (Fed.
Cir. 2007), that the phrase “‘United States import duties’ does
not include § 201 safeguard duties for the purposes of
determining the [United States price] and calculating the dumping
margin . . . .” Therefore, the court again sustains as
reasonable Commerce’s interpretation of “United States import
duties” to exclude Section 201 duties and likewise sustains
Commerce’s decision to not deduct those duties from United States
price. Id.
     4
         The court’s January 28, 2008 order amending the caption
                                                    (continued...)
Court No. 06-00085                                       Page 6
Federal Supplement), by which the final results of Commerce’s

tenth administrative review were sustained.   The issues raised by

plaintiff’s motion are resolved as follows.



I. Model Match

     Plaintiff’s first claim is that Commerce abused its

discretion by failing to request the more detailed product

information from Dongbu, HYSCO, POSCO, and Union (collectively,

“defendant-intervenors”), that plaintiff believed was necessary

for use in Commerce’s model match comparisons.    As a result,

plaintiff insists that Commerce’s model match results were not

supported by substantial evidence, because incomplete information

“likely yielded inaccurate results.”   Pl.’s Br. 2.

     Model match criteria are used by Commerce to ensure that the

merchandise sold in the United States market is being compared

“with a suitable home-market product” for purposes of calculating

antidumping duties.   Koyo Seiko Co. v. United States, 66 F.3d

1204, 1209 (Fed. Cir. 1995); see also 19 U.S.C.

§ 1677(16)(C)(iii).   In this eleventh review, Commerce used a

CORE-specific questionnaire to gather information to identify

“identical” merchandise for use in its model match methodology.



     4
      (...continued)
in this matter to reflect plaintiff’s corporate name change does
not extend to the Mittal case, which dealt with the prior, tenth
administrative review of the same company.
Court No. 06-00085                                         Page 7
See, e.g., Letter Dated Nov. 1, 2004 from Commerce to POSCO, and

accompanying Request for Information, CORE from Korea (the

“Questionnaire”), Public Doc. (“PD”) No. 19.   The Questionnaire

employed twelve criteria including “width,” “thickness,” “type,”

and “quality.”   See Questionnaire, PD No. 19 at 3-5.     For certain

categories of data sought, the Questionnaire asked for

information based on ranges of characteristics rather than

precise measurements.5   See Questionnaire, PD No. 19 at 3-5.

“Thus, to identify goods for price comparisons, Commerce would

treat as factually ‘identical’ all CORE within a given range . .

. [such that] articles with different actual dimensions could

still be treated as ‘identical’ . . . .”   Pl.’s Br. 5.

Commerce’s questions relating to “type” and “quality” also used

groupings of characteristics rather than requiring exact product

matches.6   Questionnaire, PD No. 19 at 3-5.


     5
        For instance, Commerce’s Questionnaire uses four
measurement groups for widths, “a. >= ½” but <24” b. >=24” but
<40” c. >=40” but <60” [and] d. >=60”.” Questionnaire, PD No. 19
at 4. Similarly, it defines “minimum thickness” by employing 11
separate groups as follows: “ a. <0.014”; b. >=0.014” but <0.015”
c. >=0.015” but <0.016 d. >=0.016” but <0.018” e. >=0.018” but
<0.022” f. >=0.022” but <0.028” g. >=0.028” but <0.044”; h.
>=0.044” but <0.060” I. >=0.060” but <0.085” j. >=0.085” but
<0.130” [and] k. >=0.130”.” Questionnaire, PD No. 19 at 4.
     6
        For “type” Commerce asked defendant-intervenors to
indicate, among other things, whether or not the merchandise was
painted and, if so, whether the paint was “PVDF” (polyvinyledene
flouride) or “all other.” Questionnaire, PD No. 19 at 2.
Further, for “quality,” Commerce’s questionnaire specified four
groups, as well as an “other” response. The four “quality”
                                                   (continued...)
Court No. 06-00085                                        Page 8
     Before Commerce in the tenth administrative review and

before this court in Mittal, plaintiff made similar arguments by

presenting to Commerce a submission employing certain of

defendant-intervenors’ own price lists.   See Pl.’s Br. 7.

According to plaintiff, this submission demonstrated that

Commerce’s model match methodology yielded aberrant results and

that this “should have prompted the agency to at least request

more precise data” such that Commerce and plaintiff “could have

pursued the matching issues in greater depth via computer

analysis.”   Pl.’s Br. 26.

     In the tenth administrative review, as it has here, Commerce

rejected plaintiff’s submission and its request to seek more

precise information primarily because the price lists submitted

by plaintiff did not reflect actual transaction prices.    Further,

“several of the price lists cited . . . are exclusive to the

Korean respondents’ home market and, thus, offer no information


     6
      (...continued)
groups, in addition to the “other” category, were:

          (a) Commercial, Lock Forming, or Structural;
          (b) Drawing (whether or not special killed);
          (c) Bake Hardened/Dent Resistant; and (d)
          Deep Drawing Steels (e.g., Deep Drawing
          Quality, Deep Drawing Quality Special Killed,
          Extra Deep Drawing Quality, Extra Deep
          Drawing Quality Special Killed, Deep Drawing
          Quality Special Killed Fully Stabilized, Deep
          Drawing Quality Special Killed Fully
          Stabilized, Interstitial Free).

Questionnaire, PD No. 19 at 3.
Court No. 06-00085                                         Page 9
on how the products are sold in the U.S. market.”    Pl.’s Br. 8

(quoting Memorandum from Eric. B. Greynolds to Melissa Skinner

Regarding Petitioners’ Proposal to Change the Model Match

Methodology (Dep’t of Commerce Aug. 27, 2004 (the “Tenth Review

Model Match Memo”), Confidential R. Doc. (“CR”) No. 1 at 5-6).

     In this eleventh review, Commerce “reaffirmed” its reasoning

from the tenth administrative review and again declined to seek

all of the information requested by plaintiffs.     See Issues and

Decisions for the Final Results of the Eleventh Administrative

Review of the Antidumping Duty Order on Certain CORE from Korea

(2003 - 2004) (Dep’t of Commerce Feb. 6, 2006) (the “I&D Memo”),

PD No. 226 at Comment 1.   Before doing so, however, the

Department issued supplemental questionnaires to defendant-

intervenors responsive to certain of plaintiff’s requests.      See

Def.’s Resp. Mot. J. Agency R. (“Def.’s Br.”) 3.    By these

supplemental questionnaires, Commerce sought additional

information regarding “the physical characteristics of the goods

sold in Korea and in the United States and associated cost of

production information.”   Def.’s Br. 3 (citations omitted).

Commerce did not, however, “request actual measurement data for

each model sold because such a request ‘would have been extremely

burdensome for [defendant-intervenors].’”   See Def.’s Br. 3

(citations omitted).   Thus, although Commerce did obtain more

detailed information, particularly with respect to type, quality,
Court No. 06-00085                                       Page 10
and cost of production, it did not request all of the data asked

for by plaintiff.    See, e.g., Dongbu Suppl. Questionnaire

Sections A-D (Dep’t of Commerce May 17, 2005), PD No. 117

(requesting information concerning corporate structure, financial

statements, distribution process, type, and quality).   In

addition, unlike in the tenth review, Dongbu, POSCO, and HYSCO

voluntarily submitted additional data reflecting exact widths and

thicknesses of the products covered by sales they reported to

Commerce.   See I&D Memo, PD No. 226 at 4-5; see also Pl.’s Br.

11.

      Notwithstanding this more detailed information, plaintiff

continues to insist that it needs more data so that it can

“demonstrate the likely inaccuracy of Commerce’s methodology so

far as quality and type were concerned.”   Pl.’s Br. 11 (“Since no

respondent voluntarily submitted more precise ‘Type’ or ‘Quality’

information, Mittal was unable to test for those factors.”).

      Having reviewed the record, the court finds that Commerce

made a reasonable decision not to seek all of the information

sought by plaintiff.   Here, plaintiff’s submission, which

purports to demonstrate that Commerce’s results were aberrant,

relies on the identical price lists it presented in the tenth

review.   Unsurprisingly, Commerce again concluded that “the price

lists submitted by [plaintiff] contained no evidence indicating

that the price lists reflect actual transaction prices, and,
Court No. 06-00085                                          Page 11
thus, . . . do not necessarily reflect the Korean [defendant-

intervenors’] actual sales and pricing practices.”    I&D Memo, PD

No. 226 at 6.    Commerce further observed that “several of the

price lists cited by [plaintiff] were exclusive to the [Korean

defendant-intervenors’] home market and offered no information

concerning how the products are sold in the United States.”7

Def.’s Resp. 11.    Thus, for Commerce, this evidence is less

reliable and less accurate than the actual sales data it

obtained.    See generally I&D Memo, PD No. 226 at Comment 1.

     With respect to this evidence, the Mittal Court found that

Commerce was justified in relying upon the actual Unites States

sales data it obtained, rather than price lists for merchandise

sold in the Korean home market.    See Mittal, 31 CIT at __, Slip

Op. 07-117 at 11-12.


     7
         Commerce’s Issues & Decisions Memorandum explains:

            It is important to note that [plaintiff’s]
            arguments and analysis in this review are
            similar to those submitted in the tenth
            administrative review. In particular, our
            findings with respect to [plaintiff’s]
            arguments on price-list information has
            already been addressed in our Tenth Review
            Model-Match Memo . . . As we also found in
            the tenth administrative review, the price
            lists submitted by [plaintiff] contained no
            evidence indicating that the price lists
            reflect actual transaction prices, and, thus,
            we found that they do not necessarily reflect
            the Korean [defendant-intervenors’] actual
            sales and pricing practices.

I&D Memo, PD No. 226 at 6 (footnotes omitted).
Court No. 06-00085                                       Page 12
     As to plaintiff’s argument that Commerce has not supported

its conclusions with substantial evidence because it did not

request the additional information plaintiff asked for, Commerce,

in fact, had in its possession all of the information needed to

make a fair and reasonable product comparison.   That is, Commerce

had sufficient information——submitted in response to its initial

Questionnaire, the follow-up questionnaires, and voluntarily

submitted by defendant-intervenors——about product details such as

type, reduction and coating processes, clad material, quality,

yield strength, metallic coating weight, width, thickness, form,

temper rolling, and leveling.   See Questionnaire, PD No. 19 at 3-

5.   “Commerce enjoys broad discretion in conducting . . . reviews

under the antidumping statute, particularly in . . . [making]

decisions regarding relevant evidence.”   See E.I. DuPont de

Nemours & Co. v. United States, 22 CIT 19, 32, Slip Op. 98-7

(Jan. 29, 1998) (not reported in the Federal Supplement); U.S.

Steel Group v. United States, 96 F.3d 1352, 1357 (Fed. Cir. 1996)

(“It is the [Department’s] task to evaluate the evidence it

collects during its investigation.”); but see Ceramica

Regiomontana, S.A., 10 CIT at 405, 636 F. Supp. at 966 (“Of

course, this Court will not allow an agency, under the guise of

lawful discretion, to contravene or ignore the intent of the

legislature or the guiding purpose of the statute.”).

     Plaintiff, seemingly aware that it cannot demonstrate a
Court No. 06-00085                                              Page 13
compelling need for Commerce to change its model match

methodology, relies on the argument that, if Commerce obtained

more information, then perhaps it could demonstrate a compelling

need.        This, however, is mere speculation.   While it may be that

more information might be useful, plaintiff’s submission did not

demonstrate that it is necessary.        See I&D Memo, PD No. 226 at

Comment 1.        Commerce “cannot possibly account for every

difference between products . . . .”        See Tenth Review Model

Match Memo, CR No. 1 at 6.        Therefore, Commerce’s decision not to

request additional information was a “reasonable means of

effectuating the [antidumping law’s] statutory purpose . . . .”

Ceramica Regiomontana, S.A., 10 CIT at 404–05, 636 F. Supp. at

966.        Accordingly, Commerce’s model match results are sustained

as supported by substantial evidence.



II.    Constructed Export Price: Deduction of Selling Expenses

       As it did in the tenth administrative review, plaintiff

argues that Commerce, in calculating constructed export price

(“CEP”), acted unlawfully and rendered a determination

unsupported by substantial evidence by not deducting certain

expenses incurred by the Korean exporter parent companies.8          See


        8
             CEP refers to

                the price at which the subject merchandise is
                first sold (or agreed to be sold) in the
                                                         (continued...)
Court No. 06-00085                                           Page 14
Pl.’s Br. 22-23, 30-36.     According to plaintiff, when the Korean

parent companies perform “core selling functions9 in connection

with their U.S. affiliates’ resales,” Commerce must deduct these

expenses when calculating CEP.10    Pl.’s Br. 22-23.     Plaintiff


     8
         (...continued)
             United States before or after the date of
             importation by or for the account of the
             producer or exporter of such merchandise or
             by a seller affiliated with the producer or
             exporter, to a purchaser not affiliated with
             the producer or exporter, as adjusted under
             subsections (c) and (d) of this section.

19 U.S.C. § 1677a(b). CEP, or United States price, is then
compared to normal value to calculate the dumping margin. Normal
value is defined as

             the price at which the foreign like product
             is first sold (or, in the absence of a sale,
             offered for sale) for consumption in the
             exporting country, in the usual commercial
             quantities and in the ordinary course of
             trade and, to the extent practicable, at the
             same level of trade as the export price or
             constructed export price . . . .

19 U.S.C. § 1677b(a)(1)(B)(i).
     9
        Plaintiff makes reference to “core selling functions,”
“core reselling functions,” and “core selling expenses,” but
these phrases are not defined in the statute or in Commerce’s
regulations. Plaintiff’s briefs and its counsel’s
representations at oral argument, however, make clear that these
phrases are intended to describe such activities as price
negotiations, entering into sales contracts, and approving
resales, as well as certain travel expenses and information
sharing. See Pl.’s Br. 39; Transcript of Oral Argument at 18-19,
Court No. 06-00085 (Sept. 21 2007).
     10
           Subsection 1677a(d) provides, in pertinent part:

             [T]he price used to establish [CEP] shall
                                                         (continued...)
Court No. 06-00085                                        Page 15



     10
          (...continued)
              also be reduced by——

                  (1) the amount of any of the
                  following expenses generally
                  incurred by or for the account of
                  the producer or exporter, or the
                  affiliated seller in the United
                  States, in selling the subject
                  merchandise (or subject merchandise
                  to which value has been added)——

                       (A) commissions for
                       selling the subject
                       merchandise in the United
                       States;

                       (B) expenses that result
                       from, and bear a direct
                       relationship to, the
                       sale, such as credit
                       expenses, guarantees and
                       warranties;

                       (C) any selling expenses
                       that the seller pays on
                       behalf of the purchaser;
                       and

                       (D) any selling expenses
                       not deducted under
                       subparagraph (A), (B), or
                       (C) . . . .

19 U.S.C. § 1677a(d)(1).     Commerce’s regulation further provides:

             In establishing [CEP] under section [19
             U.S.C. § 1677a(d)(1)], the Secretary 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. The
             Secretary will not make an adjustment for any
             expense that is related solely to the sale to
             an affiliated importer in the United States,
                                                       (continued...)
Court No. 06-00085                                            Page 16
maintains that “[a]ny other conclusion undermines the concept of

‘CEP’ as contemplated by the statute and construed by the Federal

Circuit.”     Pl.’s Br. 22-23.

     Plaintiff’s motion notes that, while the facts it relies on

are company-specific, a “common theme exists” for all of the

defendant-intervenors.11     Pl.’s Br. 12.   Accordingly, plaintiff


     10
          (...continued)
              although the Secretary may make an adjustment
              to normal value for such expenses under
              section 773(a)(6)(C)(iii) of the Act.

19 CFR § 351.402(b).
     11
            Plaintiff’s brief explains its characterization of the
facts:

             Basically, parent companies in Korea sell
             CORE to their U.S. subsidiaries, who in turn
             resell the merchandise to unaffiliated U.S.
             buyers in so-called “back to back” CEP
             transactions. The evidence shows that the
             parent companies participate in varying
             degrees in the subsidiaries’ U.S. resales,
             i.e., they effectively perform selling
             functions in the resale operations.
             Oftentimes they perform these activities
             outside the United States - i.e., in Korea --
             and the associated selling expenses appear on
             their own books in Korea. The location of
             the activities, however, does not change the
             basic fact that the activities and associated
             expenses relate to the U.S. resale
             transactions, to be distinguished from the
             sales by the parents to the affiliates. . . .
             [Plaintiff] contends that all expenses
             associated with core reselling functions are
             “CEP selling expenses” for purposes of CEP
             calculations under 19 U.S.C. 1677a(d), and
             are therefore deductible as such. Commerce,
             however, rejected the contention and refused
                                                       (continued...)
Court No. 06-00085                                          Page 17
alleges the following:



     A.     Union

     Defendant-intervenor Union sold CORE to its American

affiliate, which in turn resold the CORE to unrelated United

States purchasers in reportable CEP transactions.     Pl.’s Br. 12

(citing Union Sections A-C Questionnaire Resp. (“Union Quest.

Resp.”), PD No. 59 at 15, 17).     Plaintiff alleges that record

evidence demonstrates that Union performed numerous selling

functions in the resales, including having final authority to

accept or reject orders and shipping the goods directly to

purchasers, as well as “process[ing] claims for defective

merchandise sold in the U.S. market.”     See Pl.’s Br. 13 (citing

Union Quest. Resp., PD No. 59 at 7, 15).     Plaintiff argues that

Commerce, despite inquiring in two supplemental questionnaires

about these activities, was wrong in concluding that the record

evidence did not demonstrate that these selling expenses should

have been deducted in CEP calculations.     See Pl.’s Br. 13-14.



     B.     POSCO

     Defendant-intervenor POSCO had two Korean affiliates that


     11
          (...continued)
              to deduct the relevant amounts in all cases
              except for HYSCO.

Pl.’s Br. 12 (citations and footnotes omitted).
Court No. 06-00085                                          Page 18
sold CORE to its United States affiliate, which then resold the

goods to unrelated United States buyers in CEP reportable

transactions.      See Pl.’s Br. 14 (citing POSCO Sections A-D

Questionnaire Resp. (“POSCO Quest. Resp.”), PD No. 68 at 7-11).

Plaintiff alleges that one of POSCO’s Korean affiliates

negotiated sales terms and that its United States affiliate

simply assisted in these negotiations and communications.        Pl.’s

Br. 14.   Furthermore, according to plaintiff, the Korean

affiliates performed market research, computer/legal/accounting

work, engineering services, and advertising.      See Pl.’s Br. 14-15

(citing POSCO Quest. Resp., PD No. 68 at 25-28).       Plaintiff

further alleges that some of these activities had to relate to

United States resales, not simply sales to POSCO’s United States

affiliate.   Thus, it again argues that Commerce should have

concluded that there was substantial evidence on the record

demonstrating that these selling expenses should have been

deducted in CEP calculations.      See Pl.’s Br. 15.



     C.   Dongbu

     Defendant-intervenor Dongbu sold CORE to its United States

affiliate which then resold the CORE to United States purchasers

in CEP reportable transactions.      See Pl.’s Br. 15 (citing Dongbu

Section A Questionnaire Resp. (“Dongbu Quest. Resp.”), PD No. 57

at A-13, A-18).     According to plaintiff, Dongbu’s United States
Court No. 06-00085                                          Page 19
affiliate played a self-described “liaison” role.    Plaintiff

insists that Commerce did not ask for sufficient information for

Commerce to understand the true role of the United States

aaffiliate.    See Pl.’s Br. 15-16.   Thus, plaintiff asserts that,

because Commerce had incomplete information, it is “unclear

whether [the Department] ultimately deducted sufficient selling

expenses in the CEP calculations.”    Pl. Br. 16.



     D.   HYSCO

     Plaintiff insists that the record contained evidence that

HYSCO performed most of the functions in resales by its United

States affiliate.    Thus, plaintiff agrees that Commerce has

supported with substantial evidence its decision to include a

portion of these selling expenses in its CEP calculations for

HYSCO.    See Pl.’s Br. 16-17.   For plaintiff, however, “all

[defendant-intervenor] parent companies participated in their

subsidiaries’ U.S. resales, particularly Union and POSCO.”       See

Pl.’s Reply Br. 10.    Therefore, plaintiff characterizes

Commerce’s treatment of HYSCO as contradictory behavior by the

agency.    It maintains that “the government undercuts its own

position by the action it took on HYSCO’s facts,” when it

purportedly made similar showings for all defendant-intervenors.

See Pl.’s Reply Br. 10.
Court No. 06-00085                                         Page 20
     For its part, Commerce maintains that, with respect to three

of the defendant-intervenors, it “reasonably determined not to

deduct home market indirect selling expenses from [CEP].”      Def.’s

Br. 13.   Commerce asserts that the antidumping statute and the

statute’s legislative history, as well as its “longstanding

practice,” confirm that a deduction is not warranted for indirect

selling expenses that are “general in nature” and “not associated

specifically with United States affiliates’ resales to

unaffiliated customers.”    Def.’s Br. 13-14.   The Department

further claims that record evidence demonstrates that the

expenses cited by plaintiff were general in nature, i.e.,

attributable to all sales not simply United States resales.

Def.’s Br. 17-18.    For Commerce, plaintiff’s arguments are

misguided:

           [Plaintiff] asserts that Commerce should have
           deducted certain expenses incurred by the
           foreign parent for selling activities like
           price negotiation because without these
           activities, the United States sales would not
           have occurred. Yet, [plaintiff] fails to
           recognize the critical distinction, i.e.,
           that these types of expenses are general in
           nature because they are incurred regardless
           of whether the sale in question is an export
           price sale (direct to the unaffiliated United
           States customer) or a constructed export
           price sale. The expenses that Commerce
           deducts pursuant to 19 CFR § 351.402(b) are
           only those associated with the additional
           selling activities that the foreign parent or
           its United States affiliate must undertake in
           selling constructed export price subject
           merchandise to unaffiliated United States
           customers.
Court No. 06-00085                                          Page 21
Def.’s Br. 17 (citations omitted).

      Additionally, Commerce notes that it made the deduction

where warranted, i.e., when “HYSCO had reported that it, not its

United States affiliate, performed most of the resale activities

in the United States market.”    Def.’s Br. 18 (citing I&D Memo, PD

No. 226 at Comments 5, 15, and 23).    Therefore, Commerce argues

that it “correctly applied the law to the facts” and asks that

this court sustain its determinations.    Def.’s Br. 17-18.

      A resolution of this dispute revolves around whether

Commerce misinterpreted the evidence before it.    The court finds

that it did not.    With respect to the deductibility of these

expenses, the only material difference between Mittal and the

present case is the treatment of HYSCO.    Thus, Mittal is useful

here.    Mittal sustained as lawful and supported by substantial

evidence Commerce’s refusal to deduct expenses it found to be

general in nature.    See Mittal, 31 CIT at __, Slip Op. 07-117 at

14-16.

      Here, as in Mittal, there is nothing in the record to

indicate that Commerce did not request and receive all of the

business information required in order to ascertain the

respective levels of involvement of the Korean companies and

their United States affiliates in the United States sales.      That

is,

            Commerce requested and received from
            [defendant-intervenors] information regarding
Court No. 06-00085                                        Page 22
          all business or operational relationships
          affecting the development, product[ion], sale
          or distribution of the subject merchandise in
          the home and United States markets . . . .
          [and] then concluded that [t]he reported
          indirect selling expenses were general in
          nature and not attributable to [CEP] resales
          to unaffiliated United States purchasers.

Def. Br. 17-18; see also I&D Memo at Comments 5 (Dongbu), 14

(Union), and 23 (POSCO); I&D Memo at Comment 11 (HYSCO).

     Although “plaintiff maintains that the record reveals a

substantial level of involvement by the [defendant-intervenors]

in the resale of CORE to unaffiliated U.S. purchasers,” Commerce

disagrees.   See Mittal, 31 CIT at __, Slip Op. 07-117 at 17; see

also U.S. Steel Group v. United States, 96 F.3d 1352, 1357 (Fed.

Cir. 1996) (“It is the [Department’s] task to evaluate the

evidence it collects during its investigation.”).   Commerce’s

position is based upon its assessment of verified information.12


     12
        In this review, Commerce relied on its verifications
from the tenth review. In that regard, Commerce verified
Dongbu’s home-market indirect selling expenses in the tenth
review and confirmed that they were unrelated to sales between
its United States affiliate and unaffiliated United States
buyers. See I&D Memo, PD No. 226 at 15. Commerce likewise
relied on its verification from the tenth review for Union and
POSCO. See I&D Memo, PD No. 226 at 28-29, 35. Commerce’s
reliance on prior verifications was proper. See Trade and Tariff
Act of 1984, H.R. Rep. 98-725, at 43, reprinted in 1984
U.S.C.C.A.N. 5127, 5170 (1984) (“The Committee . . . believes it
is essential to proper enforcement of the laws that information
used in determining annually the actual amount of any . . .
antidumping duty to be assessed under outstanding orders is
accurate to the extent possible. At the same time, the Committee
is concerned that requiring verification in every review would
result in an unnecessary additional administrative burden on the
                                                    (continued...)
Court No. 06-00085                                        Page 23
Here, “plaintiff has not made a case that the selling functions

performed by the parent companies were mischaracterized by

Commerce.”   Mittal, 31 CIT at __, Slip Op. 07-117 at 20.13   Thus,


     12
      (...continued)
Department of Commerce for perfunctory verifications. Therefore,
verification would not be required if an interested party does
not request it in a timely manner, or after recent verifications
have taken place unless shown to be warranted.”).
     13
        Mittal discussed Commerce’s efforts in collecting and
verifying data:

     . . . verification of Dongbu’s questionnaire responses
     revealed:

          [S]ales negotiations begin with Dongbu USA
          [Dongbu’s United States affiliate] and the
          U.S. customer. Dongbu USA informs Dongbu of
          the sales order, then Dongbu inputs the sales
          order into Dongbu’s sales system, at which
          time the merchandise is produced to order.
          Company officials stated that Dongbu ships
          directly to the port of the customer’s
          request, which is stated in the sales
          contract between Dongbu USA and customer.
          Company officials added that the shipment
          arrangements are made by Dongbu according to
          the terms that are negotiated between the
          customer and Dongbu USA. . . . Company
          officials also stated that Dongbu USA clears
          the merchandise through Customs and arranges
          for the payments of the customs broker and
          customs duties. . . . Company officials
          stated that Dongbu USA generally issues the
          invoice to the customer after it has been
          shipped, but before it arrives to the United
          States. . . . They stated that the customer
          pays Dongbu USA. . . .

     Dongbu Verification Mem. (Dep’t of Commerce Feb. 1,
     2005) at 29; see also id. at 30 (“We reviewed the list
     of selling activities performed by Dongbu and Dongbu
     USA for each market, and distribution channel. We also
                                                    (continued...)
Court No. 06-00085                                      Page 24
the court finds that, while plaintiffs and Commerce have a

difference of opinion as to the characterization of the parent

companies’ activities, Commerce adequately applied the law to the

facts and has “‘articulate[d] a[] rational connection between the

facts found and the choice made.’” See Mittal, 31 CIT at __, Slip

Op. 07-117 at 20-21 (quoting Burlington Truck Lines, Inc. v.

United States, 371 U.S. 156, 168 (1962)).

     Plaintiff’s argument that Commerce’s decision to deduct

HYSCO’s selling expenses (and not other defendant-intervenors’

selling expenses) is somehow demonstrative of Commerce’s

contradictory behavior is not convincing.   Commerce is entitled

to treat companies differently if it articulates its reasoning

for doing so and if its conclusions are supported by substantial



     13
      (...continued)
     reviewed the list of selling activities and confirmed
     with company officials the level of activity in each
     market . . . . We noted no discrepancies.”). The
     Department understood this evidence to indicate that
     Dongbu’s U.S. affiliate, not Dongbu, incurred the
     selling expenses resulting from U.S. resales of CORE.
     Because “[t]here is no evidence on the record to
     suggest [Dongbu’s] reported . . . selling expenses are
     directly attributable to U.S. sales,” Commerce
     concluded that these expenses were not deductible from
     CEP. Issues & Decs. Mem. at 10.

          Commerce made similar findings with respect to the
     level of involvement in resales of CORE to unaffiliated
     U.S. purchasers upon verifying Union’s, POSCO’s and
     HYSCO’s responses and likewise found the reported
     incurred expenses to be unrelated to those sales.

See Mittal, 31 CIT at __, Slip Op. 07-117 at 18-19.
Court No. 06-00085                                         Page 25
evidence.    Here, Commerce agreed with plaintiff that the “record

evidence indicates that HYSCO performed most of the functions

involved in [its United States affiliates’] resales.”      See I&D

Memo, PD No. 226 at 22 (detailing Commerce’s review of HYSCO’s

selling functions chart and explaining that HYSCO “stated that it

negotiated and approved U.S. sales transactions”).    Plaintiff has

simply not demonstrated that the selling functions performed by

the other parent companies were mischaracterized by Commerce.

       Based on the foregoing, the court sustains as supported by

substantial evidence and according to law Commerce’s

determination not to deduct selling expenses from CEP because

(1) Commerce had all of the necessary information before it; and,

(2) the Department reasonably concluded that the defendant-

intervenors’ reported selling expenses were general in nature and

not specifically associated with resales of CORE to unaffiliated

purchasers in the United States.



III.    CEP Offset Adjustments

       In its investigation, Commerce was required by statute to

take into account level of trade (“LOT”) differences to account

for any price differential resulting from a Korean exporter’s

sales in Korea being made at a more advanced LOT than its sales

to the United States.    See 19 U.S.C. § 1677b(a)(7)(A).   Commerce

is directed to make an actual LOT adjustment to normal value only
Court No. 06-00085                                        Page 26
if “the difference in [LOT] . . . is demonstrated to affect price

comparability, based on a pattern of consistent price differences

between sales at different [LOTs] in the country in which normal

value is determined.”   19 U.S.C. § 1677b(a)(7)(A)(ii).

     Under 19 U.S.C. § 1677b(a)(7)(B), where the record contains

insufficient data to make a LOT adjustment, a CEP offset to

normal value calculations may be granted.   See 19 U.S.C.

§ 1677(a)(7)(b).

          When normal value is established at a [LOT]
          which constitutes a more advanced stage of
          distribution than the [LOT] of the [CEP],
          but the data available do not provide an
          appropriate basis to determine under
          subparagraph (A)(ii) a [LOT] adjustment,
          normal value shall be reduced by the amount
          of indirect selling expenses incurred in the
          country in which normal value is determined
          on sales of the foreign like product . . . .

19 U.S.C. § 1677b(a)(7)(B); see also Mittal, 31 CIT at __, Slip

Op. 07-117 at 24 (citing 19 CFR § 351.412 (f)(3)).14

     In deciding whether to grant a CEP offset, Commerce will

analyze a party’s LOT for its home market and for its CEP sales.

See Def. Br. 20.   “Finding sales to be at a more advanced stage

of distribution can be shown by evidence that the foreign

producer or exporter performs more selling activities, and thus


     14
        This provision provides: “Where available data permit
the Secretary to determine under paragraph (d) of this section
whether the difference in [LOT] affects price comparability, the
Secretary will not grant a [CEP] offset. In such cases, . . .
the Secretary will make a [LOT] adjustment.” 19 CFR § 351.412
(f)(3).
Court No. 06-00085                                        Page 27
incurs more selling expenses, in its home market than it does in

the United States.”   Mittal, 31 CIT at __, Slip Op. 07-117 at 25

(citing Micron Tech., Inc. v. United States, 243 F.3d 1301, 1305

(Fed. Cir. 2001) (“The effect [of the CEP offset] is to reduce

the price of the more advanced [stage of distribution] by

‘indirect selling expenses’ that have been included in the price

on the apparent theory that such costs would not have been

incurred if the sale had been made on a less advanced [stage of

distribution].”)).

     Here, Commerce allowed CEP offsets for all defendant-

intervenors in the review.   It did so based upon information

requested and received “relating to channels of distribution,

categories of customers, and all selling activities performed and

services offered in the United States and foreign markets.”

Def.’s Br. 5.

          Commerce analyzed the defendant-intervenors’
          selling functions in the United States and
          the Korean markets and determined that sales
          for all four defendant-intervenors involved a
          single level of trade in both the home and
          United States markets, and that the four
          defendant-intervenors’ respective [LOT] in
          the United States market were at a less
          advanced stage of distribution than their
          home market [LOT].

Def.’s Br. 6 (internal citations omitted).

     Plaintiff maintains that Commerce’s analyses and conclusions

regarding CEP offsets were improper because Commerce “ignored

[plaintiff’s] contention that none of the [defendant-intervenors]
Court No. 06-00085                                         Page 28
had described all of the selling activities at the so-called CEP

LOT . . . .”   Pl.’s Br. 18.   That is, plaintiff asserts that the

record was incomplete and that Commerce did not have sufficient

evidence on the record to “perform fair comparisons of activities

at the two respective LOT[s].”     Pl.’s Br. 18.   “Because Commerce

refused to ask questions that would have revealed the selling

activities at the so-called CEP [LOT] . . ., it was not possible

for Commerce to determine that the parents’ sales to their U.S.

affiliates were at a less advanced LOT than sales to non-

affiliates in the home market.”     See Pl.’s Reply Br. 13; Pl.’s

Br. 39.   Plaintiff argues that Commerce’s failure to remedy these

deficiencies in the record demonstrates that the CEP offsets “are

unsupported by substantial evidence because no reasonable mind

would accept Commerce’s analysis of the facts on the basis of the

record as made.”   Pl.’s Br. 18.

     Specifically, plaintiff insists that defendant-intervenors

provided incomplete information in response to Commerce’s initial

and supplemental questionnaires requesting information about “all

the selling functions” at the CEP LOT.     Pl.’s Br. 37 (citations

omitted).   Plaintiff further argues that its comments to Commerce

“called attention to [the defendant-intervenors’] failure to show

entitlement to the offsets they claimed.”     Pl.’s Br. 38.

According to plaintiff, the defendant-intervenors collectively

engaged in a “pattern” of “active[ly] assist[ing] their
Court No. 06-00085                                       Page 29
affiliates in reselling in the United States,” and thereby

promoting their own sales to their affiliates at the CEP LOT.

Pl.’s Br. 38.   Plaintiff asserts that Commerce did not exercise

“common commercial sense” by not inquiring further into these

activities at the CEP LOT, thus failing to perceive “that

affiliates engage in numerous inter-company activities when

performing complementary and overlapping roles in marketing goods

internationally.”15   Plaintiff further asserts that Commerce’s

failure to seek more information about sales made by defendant-

intervenors to their United States affiliates “means that the

record cannot support the agency’s determination that home market

sales were made at a LOT ‘more advanced’ than the CEP LOT, as

judged by a reasonable mind.”   Pl.’s Br. 39.   Therefore,

plaintiff seeks a remand to have the record made complete.16


     15
        According to plaintiff, “[t]hese [activities] include,
among other things, continuing inter-company communications,
coordinate efforts, travel and visits, joint planning,
information sharing, and presumably other activities as well.”
Pl.’s Br. 39.
     16
        Plaintiff takes issue with Commerce’s explanation
responsive to its observations. Plaintiff argues that Commerce
gave similar and equally inadequate explanations in granting each
of the defendant-intervenors offsets. Pl.’s Br. 38-39.
Regarding Union, for example, Commerce wrote:

          Contrary to [plaintiff’s] assertions that
          Union’s selling activities in the HM [home
          market] via sales intermediaries were not
          significantly different from its CEP sales
          made to its affiliate . . . we find that
          Union provided sufficient information for the
                                                    (continued...)
Court No. 06-00085                                           Page 30
Pl.’s Br. 40.

     Notwithstanding plaintiff’s arguments, the court finds that

Commerce’s grant of CEP offsets to defendant-intervenors are

supported by substantial evidence.     For each defendant-

intervenor, Commerce determined that there was sufficient

evidence in the record to determine that: (1) each had a single

LOT in its home market and a single LOT in the United States

market, and (2) their home market sales were at more advanced LOT

than their United States CEP sales.     See I&D Memo, PD No. 226 at

Comments 6, 8, 14, 24; see also Def.’s Br. 21.     Thus, the

Department reasonably relied on the extensive information

provided by defendant-intervenors concerning their selling

functions in the Korean and United States markets in granting

each a CEP offset.     See I&D Memo, PD No. 226 at Comments 6, 8,

14, 24; see also Def.’s Br. 21; Mittal, 31 CIT __, Slip Op. 07-

117 at 19.

     Specifically, for Dongbu, Commerce reviewed its


     16
          (...continued)
              Department to compare selling functions and
              the difference in the degree of selling
              functions in the two markets. For example,
              information provided by Union demonstrates
              that Union’s selling functions for the [home
              market] sales are different and more
              extensive than those associated with Union’s
              sales to [its affiliate]. Therefore, we
              conclude that [home market] sales are at a
              more advanced LOT than its U.S. sales.

Pl.’s Br. 39 (quoting I&D Memo, PD No. 226 at 25).
Court No. 06-00085                                         Page 31
questionnaire responses and concluded that the same selling

activities occurred in both of its two home market distribution

channels in “comparable frequency” and found “that the two home

market channels of distribution alleged by [Dongbu] constitute

one [LOT].”    Calculation Memo. for Dongbu Steel, Co., Ltd.

(“Dongbu Calc. Memo”), CR No. 79 at 2.    Furthermore, Commerce

noted that, “[i]n the U.S. market, Dongbu made only CEP sales

through its U.S. affiliate, Dongbu USA, to unaffiliated customers

in two customer categories, end-users and distributors.”        Dongbu

Calc. Memo, CR No. 79 at 2.    Commerce “compared the selling

functions in the home market to the selling functions in the U.S.

market at the CEP LOT, and found a less advanced [LOT] in the

U.S. market.”17   Dongbu Calc. Memo, CR No. 79 at 2.    Based upon

this selling function analysis, Commerce concluded that Dongbu’s

home market sales were “made at a different, and more advanced,

stage of marketing than the LOT of CEP sales.”      Commerce,

however, found that it lacked the price data needed to make a LOT

adjustment.    Dongbu Calc. Memo, CR No. 79 at 2.    Therefore,

Commerce reasoned:

           Dongbu did not sell subject merchandise in
           the home market at the same LOT as that of
           the CEP, and there [was] no other data on the


     17
          Commerce’s Calculation Memorandum for Dongbu indicates
[[

                                         ]]   Dongbu Calc. Memo, CR
No. 79 at 2.
Court No. 06-00085                                         Page 32
           record that would allow the Department to
           establish whether there is a pattern of
           consistent price differences between sales at
           different [LOTs] in the comparison market.
           Accordingly, while we determined that a LOT
           adjustment may be appropriate for CEP sales .
           . . we are unable to make such an adjustment.
           Instead, we have made a CEP offset to NV
           [normal value] . . . .

Dongbu Calc. Memo, CR No. 79 at 3.

     With regard to HYSCO, Commerce undertook a similar analysis

and reached the same conclusion, i.e., that “the evidence on the

record was sufficient to demonstrate that HYSCO’s [home market]

sales were at a more advanced LOT than its CEP sales, and that

the data available does not provide an appropriate basis to

determine an LOT adjustment.”   See I&D Memo, PD No. 226 at 19

(citing Calculation Memo. for Hyundai Hysco (Dep’t of Commerce

Aug. 31, 2005) (“HYSCO Calc. Memo”), PD No. 181).   To reach this

conclusion, Commerce reviewed HYSCO’s questionnaire responses and

selling function charts.18   HYSCO Calc. Memo, PD No. 181 at 2.


     18
          Commerce’s analysis was as follows:

           In the home market, HYSCO sold through one
           channel of distribution to affiliated and
           unaffiliated local distributors and end
           users, and provided the same selling services
           to all customers.

           In the U.S. market, HYSCO made only CEP sales
           through its U.S. affiliate, Hyundai Pipe
           America (HPA), to unaffiliated U.S.
           customers. According to HYSCO’s
           questionnaire response, HYSCO conducted all
           sales and marketing activities in Korea.
                                                     (continued...)
Court No. 06-00085                                           Page 33
     Likewise, Commerce undertook the same kind of analysis for

Union and reached the conclusion, that Union was entitled to a

CEP offset.     See generally I&D Memo, PD No. 226 at Comment 14.

Commerce found that all of Union’s Korean sales were made at one

LOT, which was more advanced than the LOT of its affiliate’s

United States sales, and that “it [was] not possible to quantify

the extent to which sales at different LOTs in the [home and

United States markets] differ in price.”     See I&D Memo, PD No.


     18
          (...continued)
              HPA, which did not have a separate sales
              force for subject merchandise, relayed price
              and sales information between potential
              customers and HYSCO, and also received
              payment from HYSCO’s customers on HYSCO’s
              behalf.

             . . . HYSCO provided an updated U.S. selling
             function chart and requested a [LOT]
             adjustment or CEP offset, stating that HYSCO
             performed the same functions for its sales to
             unaffiliated customers, whether in the home
             market or the United States, and that HYSCO
             performed very few functions in connection
             with its sales to HPA.

             HYSCO’s updated selling function chart . . .
             indeed shows few selling activities at the
             CEP [LOT]. Based on our review of the
             selling functions that are related to CEP and
             home market sales, we have determined that
             HYSCO’s home market sales are made at a
             different, and more advanced, stage of
             marketing than the LOT of the CEP sales . . .
             . Accordingly, while we have determinated
             that an LOT adjustment may be appropriate for
             CEP sales . . . we are unable to make such an
             adjustment.

HYSCO Calc. Memo, PD No. 81 at 2-3 (citations omitted).
Court No. 06-00085                                        Page 34
226 at 25.19


     19
        Commerce’s Issues & Decisions Memorandum notes that
Commerce specifically requested that Union demonstrate that its
home market LOT was more advanced that the CEP LOT. See I&D
Memo, PD No. 226 at 25. Union did so to Commerce’s satisfaction.
Commerce’s analysis is as follows:

          In the home market, Union sold through three
          channels of distribution to unaffiliated
          local distributors and end-users, and
          provided the same selling services to all
          customers. Union reported all home market
          sales at the same LOT. In the home market,
          Unico sold through two channels of
          distribution to local unaffiliated local
          [sic] distributors and end-users. In the
          U.S. market, Union made only CEP sales
          through its U.S. affiliate, DKA, to
          distributors and end-users.

          With respect to sales made by Union and Unico
          in the home-market and the U.S. market, Union
          identified the following selling activities:
          [[




                                                   ]]

          [W]e asked Union to update . . . the selling
          function chart . . . to account for all
          activities performed by Union in selling
          goods at the CEP LOT. Union added [[
                                    ]] to the revised
          selling function chart. . . .

          . . . [W]e compared the selling functions
          performed for home-market sales with those
          performed with respect to the CEP
          transactions, after deductions for economic
          activities occurring in the United States . .
          .to determine if the home-market [LOT]
          constituted a different [LOT] than the CEP
                                                    (continued...)
Court No. 06-00085                                            Page 35
Commerce again based this conclusion on its review of Union’s

questionnaire responses and selling function chart.      See I&D

Memo, PD No. 226 at 25.

     Commerce reached the same conclusions for POSCO.      It found

that record evidence demonstrated that its home market sales were

at a more advanced LOT than its CEP sales, and granted POSCO a

CEP offset.     See I&D Memo, PD No. 226 at 35-36.   Commerce again

did so based upon its review of POSCO’s questionnaire responses

and selling chart.20     See I&D Memo, PD No. 226 at 35-36.


     19
          (...continued)
              [LOT]. We compared the selling functions in
              the home market to the selling functions in
              the U.S. market at the CEP LOT, and found a
              less advanced [LOT] in the U.S. market. . . .
              Union provided [[      ]] or [[ ]] selling
              activities in the U.S. market, as compared to
              the home market for [[                   ]]
              selling functions identified . . . .

             . . . Based on our review of the selling
             functions that are related to CEP and home
             market sales, we have determined that Union’s
             home market sales are made at a different,
             and more advanced stage of marketing than the
             LOT of the CEP sales.

Calculation Memo. for Union (“Union Calc. Memo”), CR No. 77 at 2
(Dep’t of Commerce Aug. 31, 2005).
     20
        Commerce’s calculation memorandum details the analysis
it undertook leading to its conclusion that POSCO’s home market
LOT was more advanced than its CEP LOT.

             The Department found that the level of [home
             market] selling activities was [[    ]] with
             regard to [[     ]] of the [[        ]]
             selling activities reported for the three
                                                       (continued...)
Court No. 06-00085                                           Page 36
     As noted, plaintiff takes issue with Commerce’s findings

     20
          (...continued)
              channels of distribution (i.e., [[



                       ]]). For [[      ]] of the
             remaining selling activities (i.e.,
             [[
                                        ]]) associated
             with the three channels of distribution, we
             found that there was [[ ]] selling activity
             reported. There was        [[         ]]
             selling activity reported for [[ ]] of the
             [[        ]] selling activities (i.e., [[post
             sale warehousing and technical advice]])
             associated with the three channels of
             distribution. Only [[     ]] selling
             activities (i.e., [[

                              ]] were not consistently
             found among all three channels of
             distribution in the home market. Since the
             level of selling activities was generally
             consistent among the three channels of
             distribution, we found that the home market
             channels of distribution constitute one
             [LOT].

             . . . . We examined the sales to the
             affiliated resellers and the selling
             functions performed by POSCO or the POSCO
             Group on behalf of its affiliate and found
             only one [LOT]. [[     ]] of the selling
             activities (i.e., [[


                      ]] incurred in the United States
             were [[    ]]. The selling activities were
             [[       ]] for [[    ]] of the selling
             activities (i.e., [[




                                                      (continued...)
Court No. 06-00085                                             Page 37
because it claims that the Department lacked sufficient evidence

to justify the offsets.        Plaintiff claims that there was

incomplete information in the record to demonstrate that

defendant-intervenors’ home market sales were made at a more

advanced LOT more advanced than the CEP LOT.        Plaintiff, however,

cites no record evidence to demonstrate that defendant-

intervenors’ reporting to Commerce was lacking; rather it relies

upon “common commercial sense.”        Commerce, however, is entitled

to at least some deference when gauging the adequacy of the

factual representations made to it.        See U.S. Steel Group v.

United States, 96 F.3d 1352, 1357 (Fed. Cir. 1996) (“It is the

[Department’s] task to evaluate the evidence it collects during

its investigation.”).        Without more, plaintiff’s reference to

“common commercial sense” is unavailing.        See Ceramica


     20
          (...continued)
                           ]]).

             The CEP [LOT] differed from the home market
             [LOT] with respect to [[    ]] selling
             activities associated with [[


                                ]]. These selling
             activities were [[        ]] for the United
             States, and [[     ]] in at least [[   ]] of
             the channels of distribution in the home
             market. Therefore, we found that the CEP
             [LOT] differs from the home market [LOT] and
             is at a less advanced stage of distribution
             than the home market [LOT].

Calculation Memo. for POSCO (Dep’t of Commerce Aug. 31, 2005)
(“POSCO Calc. Memo”), CR Doc. No. 75 at 2-3.
Court No. 06-00085                                      Page 38
Regiomontana, S.A., 10 CIT at 404–05, 636 F. Supp. at 966 (“As

long as the agency’s methodology and procedures are reasonable

means of effectuating the statutory purpose, and there is

substantial evidence in the record supporting the agency’s

conclusions, the court will not impose its own views as to the

sufficiency of the agency’s investigation or question the

agency’s methodology.”).   Therefore, “[t]he court cannot . . .

credit plaintiff’s unsubstantiated assertion that commercial

realities render insufficient the evidence Commerce relied upon

in making its decision” to grant CEP offsets here.   Mittal, 31

CIT at __, Slip Op. 07-117 at 31.

     Thus, the court finds that in light of Commerce’s detailed

factual findings, and in accordance with the statutory scheme,

Commerce supported with substantial evidence its grant of CEP

offsets to the defendant-intervenors.   That is, under 19 U.S.C.

§ 1677b(a)(7)(B), Commerce determined that “the data available

[did] not provide an appropriate basis to determine . . . a [LOT]

adjustment,” and thus Commerce reasonably relied on the evidence

of the selling functions performed by defendant-intervenors’

United States affiliates in deciding to grant the companies a CEP

offset.   See Mittal, 31 CIT at __, Slip Op. 07-117 at 27-28; see

also Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp.

300, 306 (Fed. Cir 1988) (“It is not within the Court’s domain

either to weigh the adequate quality or quantity of the evidence
Court No. 06-00085                                        Page 39
for sufficiency or to reject a finding on grounds of a differing

interpretation of the record.”) (citations omitted).

      Accordingly, the court sustains as being supported by

substantial evidence Commerce’s grant of CEP offsets to Dongbu,

HYSCO, Union, and POSCO.



IV.   Duty Drawback Adjustment

      A “[d]rawback is the reimbursement of duties paid on goods

imported into the United States and then used in the manufacture

or production of articles which are subsequently exported.”

Chrysler Motors Corp. v. United States, 14 CIT 807, 809, 755 F.

Supp. 388, 390 (1990); see also E.I. du Pont de Nemours and Co.

v. United States, 24 CIT 1045, 1046 n.2, 116 F. Supp. 2d 1343,

1345 n.2 (2000).    The antidumping statute provides that “[t]he

price used to establish . . . [CEP] shall be . . . increased by .

. . the amount of any import duties imposed by the country of

exportation which have been rebated, or which have not been

collected, by reason of the exportation of the subject

merchandise to the United States . . . .”    19 U.S.C.

§ 1677a(c)(1)(B).

      Based on the statute, Commerce has created a two-prong test

that must be satisfied prior to the grant of a drawback

adjustment.   The first prong requires the exporter to establish

that “the import duty and rebate are directly linked to, and
Court No. 06-00085                                         Page 40
dependent upon, one another.”   Far East Mach. Co. v. United

States, 12 CIT 972, 974, 699 F. Supp. 309, 311 (1988).     The

second prong demands that “the company claiming the adjustment

demonstrate that there were sufficient imports of imported raw

materials to account for the duty drawback received on the

exports of the manufactured product.”   Id. at 974, 699 F. Supp.

at 311.   For over twenty years, Commerce has consistently

applied, and this Court has consistently upheld, this test.        See,

e.g., Carlisle Tire & Rubber Co. v. United States, 11 CIT 168,

171, 657 F. Supp. 1287, 1290 (1987); Far East Mach. Co., 12 CIT

at 431–33, 688 F. Supp. at 612; Hornos Electricos de Venezuela,

S.A. v. United States, 27 CIT 1522, 1525, 285 F. Supp. 2d 1353,

1358 (2003).

     Plaintiff argues that Commerce should not have permitted a

duty drawback adjustment to the Korean companies’ CEP because the

Korean drawback system is susceptible to manipulation.21     See


     21
        Plaintiff’s brief explains its manipulation argument
with the following hypothetical:

           Although unquestionably lawful in Korea, the
           Korean system makes it possible to manipulate
           U.S. antidumping results . . . . The
           following hypothetical scenario can occur.

           We can assume that Korean “Producer X”
           produces only one product, CORE, and that it
           uses steel scrap as the basic input. We can
           further assume that “X” imports 50 percent of
           its scrap consumption (paying import duties
           on the same) and obtains the balance locally.
                                                     (continued...)
Court No. 06-00085                                            Page 41
Pl.’s Br. 18-20.     According to plaintiff, Commerce’s current

method of making drawback adjustments amplifies the potential for

distorted dumping margins on Korean products, in part, because

“Korean law allows substitution-type drawback, and this allows

Korean exporters to pick and choose the export shipments on which

they base their drawback claims when they export from Korea.”

Pl.’s Br. 19-20.     Plaintiff argues that Commerce wrongfully

denied its request “to require [defendant-intervenors] to submit

certain aggregate data” in order “to test the fairness of their

claims.”     Pl.’s Br. 20.   According to plaintiff, “[t]his data


     21
          (...continued)
              We can finally assume that “X” sells 50
              percent of its total production for export to
              the United States and 50 percent to Canada.
              Under these imagined circumstances, in
              conjunction with the Korean law, “X” could
              limit its claims for drawback solely to the
              shipments to the United States while claiming
              nothing on shipments to Canada - with U.S.
              antidumping motivations in mind. As a
              further hypothetical assumption, we can even
              assume that “X” could do this even if, as a
              matter of fact, none of the exports to the
              United States actually used any imported
              scrap, but were produced solely from domestic
              scrap. In circumstances such as these, the
              result would be a clear distortion so far as
              U.S. antidumping results are concerned. The
              claims may be normal and lawful in Korea, but
              the effect distorts U.S. antidumping
              calculations in a way that reduces
              antidumping margins to the disadvantage of
              U.S. producers. They result in
              disproportionate upward adjustments to
              reported United States prices.

Pl.’s Br. 41 (citations omitted).
Court No. 06-00085                                         Page 42

would have permitted Commerce to analyze whether any [defendant-

intervenor] claimed excessive amounts on U.S. sales.”      Pl.’s Br.

20.   Thus, plaintiff maintains that it was foreclosed from

pursuing this “theme” of argument before Commerce.    Pl.’s Br. 20.

      Moreover, plaintiff asserts that Commerce’s failure to

request further information was an abuse of its discretion,

particularly because Commerce itself “has called into question

its current methodology for drawback adjustments.”    Pl.’s Br. 43-

44.   Plaintiff points the court to a Federal Register notice of

June 30, 2005, in which Commerce stated that it “is considering

whether changes to its practice, including the two-prong test . .

., may be appropriate.”    See Duty Drawback Practice in

Antidumping Proceedings, 70 Fed. Reg. 37,764, 37,765 (Dep’t of

Commerce June 30, 2005) (notice) (the “First Request for

Comments”).    This First Request for Comments,22 according to


      22
           The First Request for Comments reads in pertinent part:

            The Department is considering whether changes
            to its practice, including the two-prong test
            . . ., may be appropriate. For instance,
            some parties have argued that the
            Department’s practice should be modified by
            requiring a respondent party seeking a duty
            drawback adjustment to demonstrate payment of
            import duties on raw material inputs used to
            produce merchandise sold in the home market.
            They argue that such a requirement is
            consistent with principles of price
            comparability and the implementation of
            Congressional intent with respect to the duty
            drawback adjustment. In addition, according
                                                      (continued...)
Court No. 06-00085                                        Page 43
plaintiff, represented an “implicit recognition” that Commerce’s



(...continued)
          to such parties, any duty drawback adjustment
          made should also be limited to the amount of
          duties actually paid on material inputs used
          to produce merchandise sold in the home
          market. Certain parties have also argued
          that the Department should allocate the total
          pool of relevant drawback available under
          some systems to total exports of subject
          merchandise to ensure that the adjustment
          claimed on U.S. sales is not overstated.

          Parties advocating a change in Department
          practice argue that in creating the duty
          drawback adjustment, Congress intended that
          an increase in the export price resulting
          from the duty drawback adjustment was
          designed to offset an increase in the home
          market price resulting from the payment of
          import duties on inputs. As a result, the
          duty drawback adjustment was designed to
          prevent dumping margins from arising simply
          because of the rebate (or non-collection) of
          import duties on the inputs resulting from
          the export of subject merchandise to the
          United States. Yet, these parties argue, to
          permit a drawback adjustment where home
          market sales do not include import duties
          leaves nothing for the rebate or exemption to
          offset.

          In order to fully consider and address these
          claims as well as other concerns about the
          Department’s practice regarding duty
          drawback, the Department is providing an
          opportunity for the public to comment . . . .
          The Department is particularly interested in
          comments relating to questions and possible
          approaches set forth in the Appendix to this
          notice, including comments on the consistency
          with the statute and Congressional intent.

First Request for Comments, 70 Fed. Reg. at 37,765 (internal
citations omitted) (emphasis added).
Court No. 06-00085                                          Page 44
two-prong test may be invalid in particular circumstances and, as

such, it is unfair to make plaintiff “wait for the agency to

complete is current review to get reconsideration of the drawback

adjustments.    Pl.’s Br. 44.

     Plaintiff further notes that, on October 19, 2006, Commerce

published another Federal Register notice that it characterizes

as an admission by the Department that its methodology “might

change” because it “is subject to manipulation and can be

unfair.”    Pl.’s Reply Br. 14 (citing Antidumping Methodologies:

Market Economy Inputs, Expected Non-Market Economy Wages, Duty

Drawback; and Request for Comments, 71 Fed. Reg. 61,716, 61,723-

24 (Dep’t of Commerce Oct. 19, 2006) (notice) (the “Second

Request for Comments”)).    In its Second Request for Comments,

Commerce wrote:

            The Department previously requested and
            received comments regarding its practice with
            respect to duty drawback adjustments to
            export price in antidumping proceedings . . .
            . In past cases, certain parties have argued
            that the Department should allocate the total
            amount of relevant drawback received to total
            exports, regardless of destination, to ensure
            that the adjustment claimed on U.S. sales is
            not overstated.

Second Request for Comments, 71 Fed. Reg. at 61,723 (citation

omitted).    It then stated:

            The Department agrees with these commenters
            and proposes to modify its approach by
            limiting the duty drawback adjustment in
            certain circumstances. The Department
            generally agrees that it should allocate the
Court No. 06-00085                                         Page 45
           total amount of duty drawback received across
           all exports that may have incorporated the
           duty-paid input in question, regardless of
           destination, to ensure that the adjustment
           claimed on U.S. sales is not overstated.

Id. at 61,723-24 (emphasis added).   According to plaintiff, this

language constitutes “an outright admission that a change in

practice should and will in due course be made.”    Pl.’s Reply Br.

15.   Plaintiff argues that, in circumstances like this, where

Commerce has stated that its methodology will change, “there is

no basis for the Court to [continue to] defer to Commerce’s

admittedly flawed precedents.”   Pl.’s Reply Br. 15.   Therefore,

plaintiff seeks a remand in order to “receive the benefit [of a

change in Commerce’s practice] now, not just in future reviews.”

Pl.’s Br. 44.

      The Mittal Court upheld Commerce’s two-prong test as “a

reasonable interpretation of 19 U.S.C. § 1677a(c)(1)(B)” and held

that Commerce, in the tenth review, “properly applied the test to

the Korean [defendant-intervenors] in this case.”   31 CIT at __,

Slip Op. 07-117 at 35-36.    Here, the court likewise agrees with

Commerce that, at this time, there is “no statutory requirement

that Commerce” must, as plaintiff suggests, “proportionateley

allocat[e] the total duty drawbacks to [defendant-intervenors]’

exports to all countries.”   Def.’s Br. 23; Mittal, 31 CIT at __,

Slip Op. 07-117 at 36; Pesquera Mares Australes Ltda. v. United

States, 266 F.3d 1372, 1382 (Fed. Cir. 2001) (“[S]tatutory
Court No. 06-00085                                       Page 46
interpretations articulated by Commerce during its antidumping

proceedings are entitled to judicial deference under Chevron.”).

     Furthermore, the court finds that Commerce properly

supported with substantial evidence its decision to make an

upward adjustment to CEP in order to account for the drawback

defendant-intervenors received from the Korean government on

their imports of raw materials.   See Huaiyin Foreign Trade Corp.

(30), 322 F.3d at 1374 (Fed. Cir. 2003) (citations omitted); Def.

Br. 23 (noting that plaintiff “does not contest the substantial

record evidence that support’s Commerce’s determination pursuant

to its longstanding, Court-approved practice”).    An examination

of the evidence reveals that Commerce reasonably concluded that

defendant-intervenors satisfied the two-prong test and, thus,

were entitled to the CEP adjustment.23

     The only new argument that plaintiff presses in hopes of

distinguishing the instant review from the tenth review (and

avoiding the holdings of Mittal), is plaintiff’s reference to

Commerce’s two Requests for Comments.    Plaintiff’s reliance on

these requests, however, is misplaced.    In the administrative


     23
        As in Mittal, plaintiff’s argument concerning margin
manipulation essentially seeks to add a third prong to Commerce’s
two-prong test. That is, plaintiff insists that a third prong
“requir[ing] shipment-wide allocation of drawback would eliminate
the distortion of dumping margins and maintain the integrity of
the antidumping statute.” Mittal, 31 CIT at __, Slip Op. 07-117
at 35. The court declines plaintiff’s invitation to alter
Commerce’s reasonable interpretation of 19 U.S.C.
§ 1677a(c)(1)(B).
Court No. 06-00085                                        Page 47
setting

          two conditions must be satisfied for agency
          action to be final: First, the action must
          mark the consummation of the agency’s
          decision-making process, it must not be of a
          merely tentative or interlocutory nature.
          And second, the action must be one by which
          rights or obligations have been determined,
          or from which legal consequences will flow.

Bennett v. Spear, 520 U.S. 154, 178 (1997) (quotations and

citations omitted).

     The court’s acceptance of these notices as binding

recognition that Commerce’s methodology was invalid or might be

invalid would contravene the administrative process and hold the

agency to a decision that is not final.   This is the case despite

Commerce’s statement that it “agrees with [the] commenters and

proposes to modify its approach.”   Second Request for Comments,

71 Fed. Reg. at 61,723.   Commerce is still “welcom[ing] comment

on this proposed methodology,” see id. at 61,724 (emphasis

added), and therefore the Second Request for Comment is just

that——a call for comments.   Thus, Commerce’s methodology and its

interpretation of 19 U.S.C. § 1677a is entitled to deference

until the Department completes its administrative processes.     See

Wieland-Werke AG v. United States, 31 CIT __, __,   525 F. Supp.

2d 1353, 1360 (2007) (“The court must defer to the agency’s

reasonable interpretation of a statute even if the court might

have preferred another.”) (citing Zenith Radio Corp. v. United

States, 437 U.S. 443, 450 (1978)); see also Timken Co. v. United
Court No. 06-00085                                          Page 48
States, 11 CIT 786, 806, 673 F. Supp. 495, 514 (1987);      Moore v.

East Cleveland, 431 U.S. 494, 525 (1977) (“By requiring

exhaustion of administrative processes the courts are assured of

reviewing only final agency decisions arrived at after considered

judgment.”).    “Commerce’s potential rulemaking has no effect

here.”   Rhone-Poulenc, Inc. v. United States, 20 CIT 573, 584 n.

5, 927 F. Supp. 451, 461 n. 5 (1996) (emphasis added).

     Furthermore, while courts have recognized that policy

statements may constitute rules, even if they are not promulgated

through notice and comment rulemaking, this is not the general

practice.    See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022

n. 13 (D.C. Cir. 2000).    That is,

            [t]he general consensus is that an agency
            statement, not issued as a formal regulation,
            binds the agency only if the agency intended
            the statement to be binding . . . . The
            primary consideration in determining the
            agency’s intent is whether the text of the
            agency statement indicates that it was
            designed to be binding on the agency.

Farrell v. Dep’t of Interior, 314 F.3d 584, 590-91 (Fed. Cir.

2002) (citations omitted); see also Hamlet v. United States, 63

F.3d 1097, 1103 (Fed. Cir. 1995) (“Obviously, not every piece of

paper released by an agency can be considered a regulation

entitled to the force and effect of law.”).

     Here, even a cursory review of the First and Second Requests

for Comments reveals that Commerce did not intend them to be

binding on the agency or enforceable in this Court.    Accordingly,
Court No. 06-00085                                     Page 49
Commerce’s First and Second Requests for Comments do not

demonstrate that Commerce erred in refusing to request additional

information or otherwise acted improperly in this review by

adhering to its established methodology.   See NSK Ltd. v. United

States, 510 F.3d 1375, 1384 (Fed. Cir. 2007) (holding that

Commerce’s public recommendation to change its methodology was

not a final decision where it “has not yet abandoned its previous

methodology or adopted a new one”).

     Based on the foregoing, the court sustains as supported by

substantial evidence and otherwise in accordance with law

Commerce’s duty drawback adjustment to defendant-intervenors’

United States price of CORE.



                            CONCLUSION

     Based on the foregoing, the court sustains Commerce’s Final

Results.   Judgment shall be entered accordingly.


                                           /s/Richard K. Eaton
                                              Richard K. Eaton


Dated: May 15, 2008
       New York, New York
