                                        Slip Op. 06 - 40

 UNITED STATES COURT OF INTERNATIONAL TRADE

                                         :
AGRO DUTCH INDUSTRIES, LTD.,             :
                                         :
                              Plaintiff, :
                                         :
                  v.                     :                 Before: MUSGRAVE, Judge
                                         :                 Court No. 04-00493
UNITED STATES,                           :
                                         :
                              Defendant, :
                                         :
                 and                     :
                                         :
COALITION FOR FAIR MUSHROOM TRADE, :
                                         :
                   Defendant-Intervenor. :
                                         :

[On challenge by producer/exporter to antidumping duty administrative review margin determination
by U.S. Department of Commerce, matter remanded for reconsideration.]

                                                                         Dated: March 28, 2006


       Garvey Schubert Barer (Lizbeth R. Levinson, Ronald M. Wisla), for the plaintiff.

       Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Patricia M.
McCarthy, Assistant Director, Civil Division, Commercial Litigation Branch, United States
Department of Justice (Richard Schroeder); and Office of Chief Counsel for Import Administration,
U.S. Department of Commerce (Matthew D. Walden), of counsel, for the defendant.

       Collier Shannon Scott, PLLC (Michael J. Coursey, Adam H. Gordon), for the defendant-
intervenor.

                                           OPINION

       The plaintiff Agro Dutch Industries, Ltd. brings this action to contest Certain Preserved

Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 69 Fed. Reg.
Court No. 04-00493                                                                             Page 2


51630 (Aug. 20, 2004), as amended 69 Fed. Reg. 55405 (Sep. 14, 2004), the fourth administrative

review since publication of the underlying antidumping duty order. See Pub R. 140 (unpublished),

153. Agro Dutch challenges three aspects of the determination, conducted by the U.S. Department

of Commerce, International Trade Administration (“Commerce” or the “Department”): (1) the

decision to treat the cost of merchandise returns to India as an indirect selling expense incurred on

U.S. sales, (2) the weighted average of home market selling expenses of other respondents used as

a surrogate for Agro Dutch’s, which Agro Dutch contends incorporated the incorrect conclusion that

commission payments from respondent Weikfield to its affiliate seller in the home market had not

been at arm’s length (which were thus treated not as deductible direct selling expenses but as indirect

selling expenses), and (3) a finding of antidumping duty absorption. The defendant United States

and the defendant-intervenor Coalition for Fair Mushroom Trade (“CFMT”) oppose Agro Dutch’s

USCIT Rule 56.2 motion, arguing that Commerce’s determination should be sustained as is. For the

following reasons, the matter will be remanded to Commerce for reconsideration.

                                 Jurisdiction; Standard of Review

       The Court has jurisdiction over the matter pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and

28 U.S.C. § 1581(c). A final determination for an antidumping duty administrative review is to be

upheld unless it is unsupported by substantial evidence or is otherwise not in accordance with law.

See 19 U.S.C. § 1516a(b)(1)(B)(i).

                                            Background

       Plaintiff Agro Dutch Industries, Ltd. is a producer or exporter of India of certain preserved

Agaricus bisporus and Agaricus bitorquis mushrooms subject to Notice of Amendment of Final
Court No. 04-00493                                                                               Page 3


Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved

Mushrooms From India, 64 Fed. Reg. 8311 (Feb. 19, 1999). The contested administrative review

covers the period February 1, 2002 through January 31, 2003 (“POR”) and resulted in a 34.57%

antidumping margin against Agro Dutch. The margin of dumping thereat is the excess of normal

value (the price at which the merchandise or foreign like product is sold in the foreign home market

in the ordinary course of trade) over export price (the price at which the producer or exporter sells

to an unaffiliated purchaser in the U.S. market) or, as appropriate, constructed export price (the price

at which an affiliate of the producer or exporter sells to an unaffiliated purchaser in the U.S. market).

See generally 19        U.S.C.    §§   1675(a)(1)(B), 1675(a)(2)(A),         1677(35)(A),     1677a(a),

1677b(a)(1)(B)&(C), 1677b(a)(4).

                                              Discussion

        I. Movement Expense of Canceled Sales

        Commerce determined at the preliminary review that during the POR Agro Dutch had sold

merchandise directly to one or more unaffiliated purchasers in the U.S. prior to importation on an

FOB, C&F or CIF basis and acted as the importer of record. Because the circumstances of the U.S.

sales did not otherwise indicate that a constructed export price methodology was appropriate,

Commerce determined that reliance upon export price was appropriate. Certain Preserved

Mushrooms from India: Preliminary Results of Antidumping Duty Administrative Review, 69 Fed.

Reg. 10659, 10662 (Mar. 8, 2004), Pub. R. 113. See 19 U.S.C. §§ 1677(35)(A), 1677a(a). From the

starting price, Commerce deducted foreign inland freight, freight document charges, transportation

insurance, foreign brokerage and handling, Indian export duty, and international freight, and made
Court No. 04-00493                                                                          Page 4


certain other adjustments, as required by statute. 69 Fed. Reg. at 10662. See 19 U.S.C. §

1677a(c)(2); 19 C.F.R. § 351.402.

       Due to insufficient Agro Dutch sales in the home market, at the preliminary review

Commerce based normal value on Agro Dutch’s sales to Israel, except for certain non-

contemporaneous sales to the U.S. and Israel for which Commerce used constructed value (the sum

of materials and fabrication, plus an amount for indirect costs such as selling, general and

administrative (SGA), plus an amount for profit, plus whatever costs would be incurred to place the

merchandise into ex factory condition, packed and ready for shipment to the United States). 69 Fed.

Reg. at 10662. See 19 U.S.C. § 1677b(e). Commerce also excluded certain sales below the cost of

production to Israel from Agro Dutch from the determination of normal value. 69 Fed. Reg. at

10664. See 19 U.S.C. § 1677b(b)(1). Commerce also determined that the comparisons of export

price and normal value were at the same level of trade (“LOT”) and therefore no LOT adjustment

was necessary. 69 Fed. Reg. at 10662. See 19 U.S.C. § 1677b(a)(1)(B)(i).

       Certain Agro Dutch shipments deemed pertinent to the POR were discovered upon arrival

in the United States to have minute traces of contaminates exceeding a U.S. Food and Drug

Administration zero tolerance specification. Accordingly, Agro Dutch canceled the sales, recalled

the merchandise, and the merchandise thus never entered into U.S. commerce. According to the

record, Agro Dutch undertook recall, rather than destruction, on the expectation that it could

reprocess the merchandise for resale to customers in other countries, and a majority were, in fact,

sold to customers in other countries during the POR. Cf., e.g., Conf. R. 50, Attachment 2 (total

quantity resold). Commerce preliminarily concluded that notwithstanding the cancellation of sales,
Court No. 04-00493                                                                            Page 5


the movement of the merchandise to the United States was nonetheless “associated with U.S. sales”

and therefore the expense of moving the merchandise to the U.S. was properly regarded as an

indirect selling expense associated with U.S. sales; thus for the preliminary results, Commerce

included the entire cost of moving the recalled merchandise from the U.S. to India as an indirect

selling expense associated with U.S. sales but allowed a deduction for resales of the recalled

merchandise to third-country customers. 69 Fed. Reg. at 10664.

       The final results used the same methodology as the preliminary results except that Commerce

revised its position and included all expenses related to the movement of the recalled merchandise

from the U.S. to India, regardless of resale to other markets during the POR. Commerce explained

that the assignment of “all such expenses to the market of the originating sale” is consistent with

Notice of Final Determination of Sales at Not Less Than Fair Value: Certain Color Television

Receivers From Malaysia, 69 Fed. Reg. 20592 (April 16, 2004) (see issues and decision

memorandum, comment 2), that “Agro Dutch did not ship the recalled sales directly to third-country

customers, but rather returned them to India to replace the merchandise in its inventory[,]” and that

since “the expense is associated with selling to the United States and the original place of shipment

for sales in other markets does not become the United States, we cannot assign the movement

expense for the return of the goods to the third-country resales.” Issues and Decision Memorandum

for Final Results of the Antidumping Duty Administrative Review on Certain Preserved Mushrooms

from India (“I&D Memo”), Pub. R. 141, at 4-5.

       None of the parties contests the India-to-U.S. movement as indirect selling expense

associated with U.S. sales: the complaint is that the U.S.-to-India movement was also treated as
Court No. 04-00493                                                                              Page 6


“indirect selling expenses associated with U.S. sales.” Agro Dutch argues that this finding is

unsupported by substantial evidence on the record. It emphasizes that the reason for returning the

merchandise to India, with which Commerce agreed, was to reprocess the merchandise for resale to

other markets in other countries. The majority were, in fact, sold to countries other than Israel during

the POR, and Agro Dutch therefore argues that the cost of moving the recalled merchandise from

the U.S. to India is tied directly to the subsequent sales and is properly chargeable to such foreign

market sales.

       The government defends on the ground that “the associated expenses never lost their

character of relating to United States sales” and therefore Commerce properly included these

expenses as U.S. indirect selling expenses. Def.’s Br. at 8-11. CFMT, the petitioner at the

administrative proceeding, argues that Commerce’s methodology recognizes all attributes of the

failed U.S. sales as U.S. expenses until such time as the goods have returned to their place of origin.

Def-Int’s Br. at 5-8.

       As an initial observation, the Court notes that Commerce has defined “direct selling

expenses” in the context of the differences in circumstances of sale regulation. They are “expenses,

such as commissions, credit expenses, guarantees, and warranties, that result from, and bear a direct

relationship to, the particular sale in question.” 19 C.F.R. § 351.410(c). By contrast, Commerce

defines “indirect selling expenses” in the context of the constructed export price offset regulation,

to wit: “selling expenses, other than direct selling expenses or assumed selling expenses (see [19

C.F.R.] § 351.410), that the seller would incur regardless of whether particular sales were made, but

that reasonably may be attributed, in whole or in part, to such sales.” 19 C.F.R. § 351.412(f)(2).
Court No. 04-00493                                                                               Page 7


More generally, with amendment of U.S. law by passage of the Uruguay Round Agreements Act,

Pub. L. No. 103-465, 108 Stat. 4809 (1994) (“URAA”), Commerce described indirect selling

expenses as

               expenses which do not meet the criteria of “resulting from and bearing a
               direct relationship to” the sale of the subject merchandise, do not qualify as
               assumptions, and are not commissions. Such expenses would be incurred by
               the seller regardless of whether the particular sales in question are made, but
               reasonably may be attributed (at least in part) to such sales.

H.R. Rep. No. 103-316, at 824 (Dec. 8, 1994) (Statement of Administrative Action (“SAA”)),1 as

reprinted in 1994 U.S.C.C.A.N. 4040, 4164 (italics added). The courts have further observed that

indirect selling expenses are considered those “sales-related” expenses that do not vary with the

quantity sold or are not related to a particular sale. E.g. SKF USA Inc. v. INA Walzlager Schaeffler

KG, 180 F.3d 1370, 1374 n.7 (Fed. Cir. 1999) (citations omitted). They are, quite simply, a part of

the cost of doing business.

       In this matter, substantial evidence supports Commerce’s conclusion that the movement

costs, both to and from the U.S., did not encompass direct selling expenses related to U.S. sales. The

underlying U.S. sales to which they related were canceled and excluded from the dumping analysis.

But that is not to imply that the movement costs therefore encompassed indirect selling expenses that

may “reasonably be attributed (at least in part)” to the U.S. sales or that it is appropriate to include

such in the dumping analysis. In the determination of export price, in addition to the other

modifications of the starting price, the only provision of apparent relevance to the immediate issue



       1
         The SAA is “an authoritative expression by the United States concerning the interpretation
and application of the Uruguay Round Agreements and [the URAA] in any judicial proceeding in
which a question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d).
Court No. 04-00493                                                                           Page 8


is 19 U.S.C. § 1677a(c)(2)(A), which requires deduction of the expenses “which are incident to

bringing the subject merchandise from the original place of shipment in the exporting country to the

place of delivery in the United States[.]” 19 U.S.C. § 1677a(c)(2)(A). However, those expenses

encompass movement expenses, not U.S. indirect selling expenses. See NSK Ltd v. United States,

390 F.3d 1352 (Fed. Cir. 2004) (selling expenses are not movement expenses). Cf. 19 U.S.C. §

1677a(d)(1)(D) (allowing for deduction of “other” selling expenses from constructed export price).

In any event, the recalled merchandise was not “subject merchandise . . . in the United States”

because it never entered the commerce of the United States.

       Considering the baseline variable of the dumping equation, the calculation of normal value

presents a similar conundrum to the inclusion of U.S. indirect selling expenses in the margin

calculation for this matter. No relevant part of subsection (a) or (e) of 19 U.S.C. § 1677b appears

to permit an adjustment to normal or constructed value for indirect selling expenses associated with

U.S. selling. The selling, general and administrative expenses component of constructed value

focuses on those SG&A expenses undertaken in connection with the production and sale of a

“foreign like product” “in the ordinary course of trade” “for consumption in the foreign country,”

plus profit. See 19 U.S.C. § 1677b(e)(2). Although paragraph (a)(8) of section 1677b allows that

constructed value “may be adjusted, as appropriate, pursuant to this subsection,” subparagraph

(a)(6)(B)(ii)—which describes reductions to the starting foreign market price (including, as part of

the purchase price, “additional costs, charges and expenses incident to bringing the foreign like

product from the original place of shipment in the exporting country to the place of delivery to the

purchaser”)—is not applicable to determining constructed value, which involves a build-up of the
Court No. 04-00493                                                                                 Page 9


costs involved in production and sale, plus profit, to the same or similar point in distribution that

may be compared to export price as the foregoing determination of normal value.2 Moreover, the

possible consideration of the movement costs of the canceled sales even as a matter of constructed

value is made further problematic by the absence of any determination that they were properly

considered “foreign like product.”

        Elsewhere in section 1677b, the circumstance-of-sale adjustment of subparagraph

(a)(6)(C)(iii) is inapplicable because it is limited to expenses that “bear a direct relationship to[ ] the

particular sale in question.” 19 C.F.R. § 351.410(b).3 The LOT adjustment of subparagraph

(a)(7)(A) offered the tantalizing possibility of explaining the inclusion of these indirect selling

expenses in the margin calculation, given the fact that this review involves export price sales;

however, Commerce preliminarily determined that all sales comparisons for Agro Dutch were at the

same LOT, such that “an adjustment pursuant to section 773(a)(7)(A) [19 U.S.C. § 1677b(a)(7)(A)]

is not warranted.”4 In any event, these are expenses “associated with U.S. sales.” Similarly,


        2
          In passing, it is perhaps worth noting that Commerce calculates the cost of manufacturing
component of constructed value as the cost of manufacturing the U.S. subject merchandise. See
Import Administration Policy Bulletin 91.2 (Dep’t Comm. Jul. 18, 1991). Therefore an adjustment
to constructed value “for differences in merchandise” is unnecessary when considering constructed
value, according to Antidumping Manual, ch. 8, sec. XIII, para. B.2 (Dep’t Comm. Jan. 22, 1998).
        3
          The offset of 19 C.F.R. § 351.410(e) (limited to the lesser of commissions paid or U.S.
indirect selling expenses, to account for commissions paid in one market but not in the comparison
market) also appeared inapplicable to Agro Dutch’s situation, see 69 Fed. Reg. at 10664 (offset
applied to Premier and Weikfield), and if it were applicable, it might have been to Agro Dutch’s
benefit, given the magnitude of the disputed “U.S.” expenses. See, e.g., Conf. R. 50, Attach. 2.
        4
           69 Fed. Reg. at 10662. See also 69 Fed. Reg. 51630 (no modification of LOT
determination). Although subsection 1677b(a) does not specifically authorize a LOT adjustment to
constructed value, paragraph (a)(8) states that constructed value “may be adjusted, as appropriate,
pursuant to this subsection.”
Court No. 04-00493                                                                           Page 10


although the constructed export price offset provision, 19 U.S.C. § 1677b(a)(7)(B), references

“indirect selling expenses” (and concerning which appears the only definition thereof in the U.S.

Code), the provision is inapplicable, since this matter does not involve constructed export price. Cf.

19 C.F.R. § 351.412(f)(2). Lastly, the Court considered the possibility that U.S. indirect selling

expenses might somehow be implicated in the allocation of profit in the constructed value

determination. However, in the final results Commerce ultimately decided that all of Agro Dutch’s

sales to Israel were below the cost of production and it therefore relied upon the weighted average

selling expenses and profit ratios derived for other respondents in deriving constructed value for

Agro Dutch. See infra. Agro Dutch’s U.S. indirect selling expenses would simply be irrelevant in

that context. In short, based on the foregoing, constructed value does not appear to have provided

the vehicle for considering the U.S. indirect selling expenses at issue to be part of the calculus.

       If the expenses at bar are in fact indirect selling expenses associated with U.S. sales, and at

this point this opinion draws no conclusions one way or the other about the matter, then the statutory

and regulatory provisions do not explain their impact upon the margin for Agro Dutch, and neither

do the parties. Their briefs focus on attributing these movement expenses to either the U.S. or

foreign market but do not address how such expenses would enter into the dumping equation at the

outset or whether that would even be proper. For example, although Commerce stated that the

treatment of these movement expenses is consistent with Certain Color Television Receivers From

Malaysia, supra, 69 Fed. Reg. 20592 (see issues and decision memorandum, comment 2), that

determination involved both export price and constructed export price, whereas only the latter were

adjusted for indirect selling expenses “associated with economic activities occurring in the United

States.” See Notice of Negative Preliminary Determination of Sales at Less Than Fair Value,
Court No. 04-00493                                                                             Page 11


Postponement of Final Determination, and Negative Preliminary Determination of Critical

Circumstances: Certain Color Televisions From Malaysia, 68 Fed. Reg. 66810, 66812-13 (Nov.

28, 2003). Also, the parties focused on disputing the implications of the returned merchandise that

were addressed in Certain Porcelain-on-Steel Cookware From Mexico: Final Results of

Antidumping Duty Administrative Review, 62 Fed. Reg. 42496 (Aug. 7, 1997), the government

implying that the determination stands for the proposition that associating return freight expenses

to future sales is administratively burdensome, because of the difficulty of following the expense

history of various merchandise lots resold in subsequent lots, as well as distortive to U.S. price, to

the extent that 19 U.S.C. § 1677a(c)(2)(A) would require freight charges for the future sales to begin

at the point of shipment associated with such later sales (Def.’s Br. at 11 (referencing id. at 42502)),

and Agro Dutch distinguishing, correctly, Cookware From Mexico as having involved a sale that was

not canceled and arguing that any “administrative difficulty” of understanding the expense history

of the recalled sales of this matter is not present in this review since Commerce was able to identify

without problem that the recalled merchandise itself was in fact resold in third countries (Pl.’s Reply

at 3-4). But be that as it may, the administrative record also indicates certain “awareness” that

treating the expenses at issue as indirect selling expenses, however associated, would seem to

obviate their inclusion in a comparison involving export price and constructed value. Cf. I&D

Memo, Pub. R. 141, at 4 (“[CFMT] notes that, in EP comparisons, as is the case here, indirect selling

expenses are not subtracted from the U.S. price, nor added to NV, nor included in the COP”).

       There being insufficient explanation on the record to address or explain the impact of these

movement expenses of the canceled sales as U.S. indirect selling expenses on the calculation of Agro

Dutch’s margin, not to mention doubt as to the legality of such application, it is appropriate to
Court No. 04-00493                                                                           Page 12


remand the matter to Commerce for reconsideration of the issue of these movement expenses, both

to and from the United States, in its entirety. In doing so, Commerce shall also consider whether it

is appropriate to treat the expenses as extraordinary costs or otherwise distortive to include them in

the margin calculation. Cf. Notice of Final Determination of Sales at Less Than Fair Value: Certain

Preserved Mushrooms from India, 63 Fed. Reg. 72246, 72251 (Dec. 31, 1998) (“The Department’s

long-standing practice with regard to ‘unforeseen events’ is to treat expense items as extraordinary

. . . when they are both unusual in nature and infrequent in occurrence”).

       II. Surrogate Home Market Selling Expenses (Commissions)

       The antidumping statute provides that the calculation of constructed value requires the

inclusion of the actual amounts realized by the exporter under review for selling, general and

administrative expenses in its home market, and if no actual expense data are available then it

requires the inclusion of the selling expenses incurred “in connection with the production and sale,

for consumption in the foreign country, of merchandise that is in the same general category of

products as the subject merchandise” are used, but if no such data are available then inter alia a

weighted average of the actual selling expenses experienced by other producers or exporters in the

home market under review in the same proceeding will substitute. See 19 U.S.C. § 1677b(e).

       Agro Dutch did not incur any selling expenses in the home market. In the preliminary

review, in order to achieve an appropriate comparison of export price to constructed value

Commerce made a circumstance-of-sale adjustment to Agro Dutch’s constructed value by deducting

the weighted average direct selling expenses of Agro Dutch’s above-cost sales in the third country

market and adding U.S. direct selling expenses. 69 Fed. Reg. at 10665. See 19 U.S.C. §

1677b(a)(8); 19 C.F.R. § 351.410 (providing for circumstance of sale adjustments, pursuant to 19
Court No. 04-00493                                                                          Page 13


U.S.C. § 1677b(a)(6)(C)(iii), “only for direct selling expenses and other assumed expenses” under

subsection (b) as well as “other selling expenses” under subsection (e) to compensate for

commissions paid only in one market). For the final results, Commerce determined that all of Agro

Dutch’s sales to Israel had been below the cost of production and it therefore relied entirely on

constructed value in place of normal value. Agreeing with CFMT’s argument, Commerce used the

weighted average selling expenses and profit ratio derived from two other respondents, Premier and

Weikfield, as the profit allocation to the constructed value for Agro Dutch. 69 Fed. Reg. at 51631.

The issue here concerns Commerce’s decision to treat the home market commissions paid by

Weikfield to its selling-agent affiliate, WPCL, as indirect expenses rather than as direct expenses.

       Commerce’s practice is to treat affiliated party payments for services directly related to the

sale of merchandise as commissions if the respondent can demonstrate that the payments were at

arm’s length. See, e.g., Ball Bearings and Parts Thereof From France, Germany, Italy, Japan, and

the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, 67 Fed. Reg.

55780 (Aug. 30, 2002) (issues and decision memorandum, comment 7); Final Determination of

Sales at Less Than Fair Value: Coated Groundwood Paper from Belgium, 56 Fed. Reg. 56359,

56362 (Nov. 4, 1991). To establish that affiliate payments are at arm’s length, Commerce compares

them to those paid to unaffiliated selling agents in the same market, but only if the comparison

would be useful. For example, in the preceding administrative review, which was the third such

review, Commerce denied Weikfield’s claim that the home market commissions paid to WPCL had

been at arm’s length because of the difficulty of trying to equate WPCL’s services to and payments

by Weikfield with those provided by and to unaffiliated selling agents. See Certain Preserved

Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 68 Fed. Reg.
Court No. 04-00493                                                                            Page 14


41303 (Jul. 11, 2003) (issues and decision memorandum, comment 4); see also Certain Preserved

Mushrooms From India: Preliminary Results of Antidumping Duty Administrative Review, 68 Fed.

Reg. 11045 (Mar. 7, 2003). Cf. Certain Preserved Mushrooms from India: Preliminary Results of

Antidumping Duty Administrative Review, 66 Fed. Reg. 13896, 13901 (Mar. 8, 2001) (first

administrative review).

         In the instant review, Weikfield again asserted that the commissions paid to WPCL during

the POR had been at arm’s length and that its marketing and promotion activities in India would cost

at least as much as if contracted by an unaffiliated company. See Pub. R. 98 at 28 (Dec. 23, 2003)

(verification report). Commerce verified that Weikfield had in fact paid commissions to WPCL in

connection with its sales activities on behalf of Weikfield and that WPCL was instrumental in

establishing a market for Weikfield’s products in India, id. at 17, but in the end Commerce agreed

with CFMT that Weikfield had not established the arm’s length nature of the home market

commissions paid to WPCL, and it therefore declined to consider the home-market commissions

paid to WPCL as a direct deduction, instead considering the payments as indirect selling expenses.

See I&D Memo, Pub. R. 141, at 9. The final results, incorporating by reference the unaltered

preliminary determination on the issue, implied that the decision was consistent with the final results

reached in the preceding administrative review. See 69 Fed. Reg. 51631 (referencing I&D Memo,

Pub. R. 141); see also 69 Fed. Reg. at 10664. Agro Dutch argues here that this determination was

arbitrary and resulted in overstated selling expenses attributed to Weikfield and assigned to Agro

Dutch.

         The government defends the decision to treat the commissions as indirect selling expenses

as consistent with Commerce’s practice, which is not to treat home market commissions paid by a
Court No. 04-00493                                                                             Page 15


respondent to an affiliate as direct deductions unless the respondent can demonstrate that the

commissions were made at arm’s length. Def.’s Br. at 14. The government contends that Weikfield

simply failed to demonstrate that the commissions paid to WPCL had been at arm’s length. Since

Weikfield did not question the decision to treat the commissions to WPCL as indirect selling

expenses in its brief commenting on the preliminary results, Commerce therefore did not address the

issue in greater detail in the final results, according to the government.

       CFMT supports the government’s position but contends as an initial matter that Agro Dutch

did not raise the issue before Commerce either and therefore failed to exhaust its administrative

remedies pursuant to 28 U.S.C. § 2637(d). CFMT argues that Agro Dutch, as the party in possession

of its own sales and cost data, knew or should have known of the consequences of the revised data

it presented to Commerce on June 2, 2004, particularly in light of CFMT’s argument in its case brief

that Commerce should use Weikfield’s selling expenses as part of any normal value calculation.

Def-Int’s Br. at 10.

       Pursuant to 19 C.F.R. § 351.309(c)(2), a party to the proceeding is required to present “all

arguments” in its case brief that “continue in the submitter’s view to be relevant” to the final results

of the review. The question is whether the issue of the arm’s length nature of Weikfield’s

commission payments to WPCL became relevant to Agro Dutch prior to conclusion of

administrative case briefing. CFMT contends that it did, and that Agro Dutch knew or should have

known that Commerce would rely on constructed value in the final results. CFMT contends that at

verification Agro Dutch presented certain clarifications and corrections, and that

               [a]nalysis of these revised data revealed the need to rely on constructed value,
               a consequence of which Agro Dutch was surely aware. The consequences of
               Agro Dutch’s data revisions were recognized by [CFMT] upon release of the
Court No. 04-00493                                                                              Page 16


                verification report and exhibits and receipt of the revised third-country sales
                database. They would have been no less recognizable to respondent Agro
                Dutch, which owned, presented and verified those same data. Yet Agro
                Dutch failed to take any affirmative position regarding any aspect of how
                Weikfield’s or Premier’s selling expenses would be imputed to its own
                constructed value. It then also failed to address [CFMT]’s case brief
                arguments on the need to use Weikfield’s data for constructing normal value.

                       Agro Dutch’s failure to raise any issue related to the treatment of
                Weikfield’s affiliated-party commissions is particularly noteworthy because
                Agro Dutch had actual knowledge that Commerce would not consider
                Weikfield’s affiliated-party commissions to be [at arm’s length] . . . since the
                Preliminary Results of the review. . . .

Def-Int’s Br. at 11-12 (italics in original).

        Agro Dutch replies that it did not challenge the issue of the calculation of Weikfield’s selling

expenses after the preliminary results because it was irrelevant to its own preliminary results and

therefore it had no cause or standing to brief the issue at this juncture. Pl.’s Reply at 5. Agro Dutch

contends that it was not until issuance of the final results that it could complain of the implications

of an administrative decision not to rely on Agro Dutch’s third-country sales information and rely

instead entirely on constructed value. Id. at 6.

        As a general matter, “[t]he doctrine of exhaustion of administrative remedies provides ‘that

no one is entitled to judicial relief for a supposed or threatened injury until the prescribed

administrative remedy has been exhausted.’” McKart v. United States, 395 U.S. 185, 193 (1969)

(quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)). If a party does not

exhaust available administrative remedies, “judicial review of administrative action is

inappropriate[.]” Sharp Corp. v. United States, 837 F.2d 1058, 1062 (Fed. Cir. 1988). When

considering non-classification matters, however, there are several identified exceptions to the

exhaustion requirement, including (1) the futility of raising the issue, (2) a judicial decision rendered
Court No. 04-00493                                                                              Page 17


subsequent to the administrative determination materially impacting the issue, (3) a pure question

of law, (4) the plaintiff had no reason to suspect that the agency would refuse to adhere to clearly

applicable precedent. See generally Consolidated Bearings Co. v. United States, 25 CIT 546, 552-

53, 166 F.Supp.2d 580, 586 (2001), rev’d on other grounds, 348 F.3d 997 (Fed. Cir. 2003). The

situation here, however, is not one of these. Agro Dutch was aware that CFMT had raised the

possibility that analysis of the cost of production for the sales to Israel would result in no above-cost

sales, and that in that event Commerce should use the weighted average of Weikfield’s and Premier’s

home market selling expenses and profits as part of Agro Dutch’s constructed value calculation. See

Pub R. 130 at 15 (CFMT’s case brief). Further, Agro Dutch was also aware of CFMT’s argument

that Weikfield’s commission payments to WPCL had not been at arm’s length and of the record as

developed with respect to that issue, including the preliminary determination to treat those

commissions as indirect selling expenses rather than direct expenses. Agro Dutch did not comment

on the issue by way of rebuttal before Commerce, where it might have better-preserved its interests

in the arguments before Commerce that it presses here. Cf. Pub. R. 135 (June 24, 2004) (Agro Dutch

rebuttal brief). After considering the parties’ respective positions on the matter, the Court is

constrained to agree that Agro Dutch has indeed failed to exhaust its administrative remedy with

respect to this issue. Accord, N.A.R., S.p.A. v. United States, 14 CIT 409, 419, 741 F. Supp. 936,

944-45 (1990) (party who “was aware, or should have been aware” of action taken in preliminary

determination should have raised its objection to action before final determination).

        Even if there had not been a failure to exhaust administrative remedies, the final results

would have to be sustained with respect to this issue. The record shows that Weikfield asserted that

“contracting with an unaffiliated company to perform the same marketing and promotion activities
Court No. 04-00493                                                                        Page 18


that WPCL has performed for WAPL [i.e., Weikfield] would probably cost at least as much as the

. . . commission that WAPL pays WPCL,” Pub. R. 98, supra, at 28, and also that Weikfield

acknowledged “[c]ircumstances have not changed since the last administrative review[,]” in which

Commerce found that the WPCL commissions had not been made at arm’s length. Pub. R. Doc. 68

at S-10 (Aug. 19, 2003). This statement, that commissions to unaffiliated commissionaires would

“probably” cost as much as those paid to WPCL, appears to be mere speculation and therefore falls

short of the specific evidence required for a respondent to demonstrate that its commissions were

made at arm’s length. See NTN Corp. v. United States, 28 CIT ___, ___, 306 F. Supp. 2d 1319, 1341

(2004); Torrington Co. v. United States, 25 CIT 395, 436, 146 F. Supp. 2d 845, 890 (2001). Further,

although Weikfield stated the WPCL plays a “distinctly different” role than the unaffiliated

commissionaire in home market sales, it provided no evidence as to what the commission payments

would have been for an unaffiliated commissionaire who plays a similar role as WPCL. See Pub.

R. 98 at 28.

       This was essentially the same problem that Commerce confronted in the prior review. See

68 Fed. Reg. 41303, supra (issues and decision memorandum, comment 4). Commerce determined

that the evidence was insufficient to support finding Weikfield’s commissions to WPCL to have

been made at arm’s length, and the Court finds that substantial evidence supports this conclusion.

Without a proper benchmark of payment for services against which to evaluate Weikfield’s payments

to WPCL, it is difficult to discern how Commerce could have found otherwise. Cf. Outukumpu

Copper Rolled Products AB v. United States, 18 CIT 204, 210-11, 850 F. Supp. 16, 22-23 (1994)

(affirming finding that commissions were not made at arm’s length because “Commerce was unable
Court No. 04-00493                                                                            Page 19


to establish a benchmark against which to compare the arm’s length nature of the ‘commission’

payments”)). Therefore, the Court sustains the final results as to this issue.

       III. Duty Absorption

       Lastly, Agro Dutch complains that Commerce’s decision that it absorbed antidumping duties

was erroneous. See 19 U.S.C. § 1675(a)(4). The duty absorption provision was added by section

220(a) of the URAA, see 108 Stat. at 4859, and provides that Commerce shall, if requested,

determine during an administrative review that is initiated two or four years after the publication of

the antidumping duty order whether antidumping duties have been absorbed by a foreign producer

or exporter if the subject merchandise is sold in the United States through an importer affiliated with

such foreign producer or exporter, and it shall share that finding with the U.S. International Trade

Commission. Id. The provision does not affect the calculation of the margin in the review, as it was

not intended to provide for the treatment of antidumping duties as a cost; rather, a finding of duty

absorption is only to be considered a “strong indicator” by Commerce of whether current dumping

margins are not indicative of the margins that would exist if the order were revoked. See H.R. Rep.

No. 103-826(I), at 60 (Oct. 3, 1994); S. Rep. No. 103-412, at 44, 50 (Nov. 22, 1994); SAA at 886,

1994 U.S.C.C.A.N. at 4210. In practice, from Commerce’s perspective the duty absorption inquiry

appears to involve little more than determining whether the importer is affiliated with the foreign

producer/exporter and whether there is more than a de minimis dumping margin: if both conditions

are true, the burden shifts to the respondent to prove non-absorption, e.g., by producing an

enforceable contract for the ultimate purchaser to pay the full duty assessed on the merchandise. See,

e.g., Fabrique de Fer de Charleroi S.A. v. United States, 25 CIT 741, 751, 155 F. Supp. 2d 801, 812-

813 (2001).
Court No. 04-00493                                                                          Page 20


       The parties do not dispute that the first two prerequisites to a duty absorption inquiry were

present in this instance: CFMT requested that Commerce conduct the inquiry, see Pub. R. 6 (Feb.

28, 2003) (letter to Commerce from counsel for CFMT), and the administrative review was initiated

four years after publication of the antidumping duty order. For the preliminary review, Commerce

determined that since Agro Dutch had acted as importer of record for nearly 80% of its U.S. sales,

it was therefore “affiliated” (with itself) within the meaning of the statute, and therefore a duty

absorption inquiry was required. See 69 Fed. Reg. at 10661. After receiving CFMT’s request,

Commerce requested evidence from Agro Dutch to demonstrate that the unaffiliated purchaser(s)

will ultimately be responsible for payment of antidumping duties assessed on entries during the POR

as a result of the administrative review proceeding. Pub. R. 80 (Sep. 30, 2003) (letter from

Commerce to counsel for Agro Dutch). Agro Dutch proffered no such evidence in response, and

Commerce therefore preliminarily determined that the evidence was inconclusive to establish

unconditional commitment by the first unaffiliated purchaser of the subject merchandise to pay the

full duty to be assessed on the subject merchandise and that Agro Dutch had therefore absorbed

antidumping duties. See 69 Fed. Reg. at 10661. For support, Commerce relied on Certain

Corrosion-Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon Steel Plate

From Canada: Final Results of Antidumping Duty Administrative Reviews, 63 Fed. Reg. 12725

(Mar. 16, 1998) (finding that exporters who are also the importers of record are “‘affiliated’ within

the meaning of” 19 U.S.C. § 1675(a)(4)). See Pub. R. 77 (Sep. 23, 2003) (memorandum of to file).

For the final results, Commerce reiterated its determination that Agro Dutch had absorbed

antidumping duties. See I&D Memo, Pub. R. 141, at 7-8 (finding lack of evidence that “the

unaffiliated purchaser will pay the full duty ultimately assessed on the subject merchandise”).
Court No. 04-00493                                                                             Page 21


       Agro Dutch argues the standard applied by Commerce in this instance, that Agro Dutch was

“affiliated” as an exporter and importer for the purpose of determining whether to conduct a duty

absorption inquiry, is not in accordance with the plain language of the statute. Agro Dutch points

out that all of its sales were considered export price sales and not constructed export sales, and that

there was no evidence or finding by Commerce that Agro Dutch had sold subject merchandise during

the POR through a related importer. Pl.’s Br. at 11 (referencing 69 Fed. Reg. 10659, Pub. R. 113).

Agro Dutch further argues that even if the standard employed is in accordance with law, the record

compiled in the matter does not support a finding of duty absorption because Commerce verified that

the antidumping duties paid upon importation were passed along to Agro Dutch’s unaffiliated

purchaser and that the verified sample invoices show that the price of the merchandise charged by

Agro Dutch to its customer included the payment of duties. Id. (referencing Conf. R., Verif. Ex. 17,

Inv. ADIL/0756). Agro Dutch describes invoice 0756 as showing a price originally charged to the

customer that includes the antidumping duties paid, from which are subsequently subtracted in a

separate line item these same duties, since they had actually been paid by the customer directly to

U.S. customs—all of which Commerce verified and which was in agreement with what Agro Dutch

reported to Commerce in its sales listing.

       The government’s initial response is that Agro Dutch also failed to exhaust its administrative

remedies with respect to this issue, specifically with respect to the argument that a basic prerequisite

for finding duty absorption—separate importer and producer/exporter entities—is absent in this

matter. The government construes Agro Dutch’s administrative case brief as “conceding” that a duty

absorption inquiry was “proper” in this instance because it only objected to the factual finding that

Agro Dutch had absorbed duties and did not challenge the prerequisites to such finding. Def.’s Br.
Court No. 04-00493                                                                             Page 22


at 25 (referencing Pub. R. 130, at 2-3 (June 10, 2004) (Agro Dutch administrative case brief)). The

government argues that this matter is similar to Ta Chen Stainless Steel Pipe, Ltd. v. United States,

28 CIT ___, 342 F. Supp. 2d 1191 (2004) and Heveafil Sdn. Bhd. v. United States, 25 CIT 147

(2001) because, as in those cases, the issue was not raised in the claimant’s case brief.

        Once again, if a party does not exhaust available administrative remedies, “judicial review

of administrative action is inappropriate[.]” Sharp Corp., supra, 837 F.2d at 1062. One of the

exceptions to the exhaustion doctrine, however, is a “pure” question of law, i.e., a novel argument

of a purely legal nature requiring neither further agency involvement nor further factual development

or an “opening up” of the administrative record or undue delay nor expenditure of scarce time and

resources. See Consolidated Bearings, supra 25 CIT at 553, 166 F. Supp. 2d at 586-87. To the

extent Agro Dutch’s argument implicates a pure question of law, it may be addressed here. Cf. id.,

348 F.3d at 1003 (“[s]tatutory construction alone is not sufficient to resolve this case” because one

of cross-appellant’s arguments concerned divergence from administrative practice).

        The government next argues that if the issue is appropriate for consideration, then

Commerce’s interpretation of subsection 1675(a)(4) is reasonable because Congress failed to provide

clear guidance on the issue of conducting an duty absorption inquiry when the producer or exporter

is itself the importer of record, thus making the statute silent or ambiguous with respect to that issue

and Commerce’s interpretation thereof deserving of Chevron deference. See Chevron U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). Applying “traditional tools

of statutory construction,”5 the government argues that it is evident from the plain text of the statute


        5
         Timex V.I. v. United States, 157 F.3d 879, 882 (Fed. Cir. 1998) (quoting Chevron, 467 U.S.
at 843 n.9).
Court No. 04-00493                                                                           Page 23


that the relevant inquiry is whether the “foreign producer or exporter” absorbed antidumping duties

and that the “statute was written to encompass the ambiguous scenario of absorption when there is

an affiliated importer; thus, by implication it similarly encompasses the more obvious scenario of

absorption when the producer or exporter acts as importer.” Def.’s Br. at 29 (referencing general

principle of statutory construction that a statute “embraces such consequential applications and

effects as are necessary, essential, natural or proper”) (quoting 2B Norman J. Singer, ed., Sutherland

on Statutes and Statutory Construction § 55.036, at 285 (6th ed. 2000)). The government thus

argues “[i]t is necessary, essential, natural or proper that [sub]section 1675(a)(4) encompass sales

through the producer or exporter itself as the importer of record.” Def.’s Br. at 29. Cf. 19 U.S.C.

§ 1675(a)(4). The government contends that examination of the legislative history supports

Commerce’s conclusion that the purpose of subsection 1675(a)(4) is to provide a disincentive for

the exporter or producer to absorb antidumping duties and to pass the cost of the duties on to its

customers, which would “eliminate” the dumping. Def.’s Br. at 29 (referencing SAA).6 Lastly, the


       6
                      When an importer is affiliated with the exporter, dumping is
               measured by reference to the affiliated importer’s resale price.
               However, it is the affiliated importer, not the unaffiliated U.S.
               purchaser of the dumped goods, who must pay the antidumping duty.
               Under certain circumstances, the affiliated importer may choose to
               pay the antidumping duty rather than eliminate the dumping, either
               through lowering prices in the foreign market, raising prices in the
               United States, or a combination of both.

SAA at 886, 1994 U.S.C.C.A.N. at 4210. As a legal and practical matter, the responsibility for
payment of antidumping duty always falls on the importer of record, regardless of affiliation. See
19 U.S.C. §§ 1481, 1484, 1624; 19 C.F.R. § 141.1. If elimination of dumping is the objective,
“lowering prices in the foreign market” is beyond the ability of the importer, and thus it may be
inferred that this “suggestion” was made with the foreign producer or exporter in mind. At any rate,
whether the provision was enacted with deterrence in mind, from the perspective of either the
                                                                                      (continued...)
Court No. 04-00493                                                                           Page 24


government argues that substantial evidence supports Commerce’s determination because Agro

Dutch did not provide the necessary evidence to establish that the unaffiliated purchaser will pay the

full duty ultimately assessed on the merchandise, and also that the final results are consistent with

other administrative determinations that have construed subsection 1675(a)(4) as encompassing the

situation where the importer and producer/exporter are one and the same. Def.’s Br. at 27

(referencing Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands: Preliminary

Results of Antidumping Duty Administrative Review; 69 Fed. Reg. 70226 (Dec. 3, 2004); Certain

Preserved Mushrooms from the People’s Republic of China: Final Results of Sixth Antidumping

Duty New Shipper Review and Final Results and Partial Rescission of the Fourth Antidumping Duty

Administrative Review, 69 Fed. Reg. 54635, 54637 (Sep. 9, 2004); Preliminary Results of

Antidumping Duty Administrative Review: Stainless Steel Sheet and Strip in Coils From France, 69

Fed. Reg. 47892 (Aug. 6, 2004); Certain Corrosion-Resistant Carbon Steel Flat Products and

Certain Cut-to-Length Carbon Steel Plate from Canada: Final Results of Antidumping Duty

Administrative Reviews, 63 Fed. Reg. 12725 (Mar. 16, 1998)).

       The issue here turns on whether the duty absorption provision is clear or ambiguous. Where

the meaning of the statute is clear, that is the end of the matter and a court should not examine the

legislative history to resolve the question. Int’l Bus. Mach. Corp. v. United States, 201 F.3d 1367,

1372 (Fed. Cir. 2000). If the meaning is plain, it is applicable unless “it is quite impossible that

Congress could have intended the result . . . and where the alleged absurdity is so clear as to be


       6
         (...continued)
importer or the foreign producer or exporter it is difficult to discern how the uncertainty of
retrospective antidumping duty assessment in the future could possibly be quantified at the present
time of an importation.
Court No. 04-00493                                                                                Page 25


obvious to most anyone.” Public Citizen v. United States Dep’t of Justice, 491 U.S. 440, 471 (1989)

(Kennedy, J., concurring) (citation omitted). In this instance, although the parties apparently take

the position that the conditional clause of the statute is “plain text” (i.e., the operation of the statute

is predicated on finding that “the subject merchandise is sold in the United States through an

importer who is affiliated with such foreign producer or exporter”), the Court can not conclude that

the meaning of “affiliated” is unambiguous.

        On the one hand, the term is not defined either as a noun or a verb in the antidumping statute

but appears only in the context of “affiliated persons,” who include in relevant part “[t]wo or more

persons directly or indirectly controlling, controlled by, or under common control with, any person”

as well as “[a]ny person who controls any other person and such other person” among other familial

and corporate relationships, and “a person shall be considered to control another person if the person

is legally or operationally in a position to exercise restraint or direction over the other person.” 19

U.S.C. § 1677(33)(F)&(G).7 Common to such definitions is the fact that an affiliated relationship

involves two or more persons. See Ta Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d

1330, 1336 (Fed. Cir. 2002) (“‘[a]ffiliated persons’ includes any group in which one person controls

another”). The statute does not reference, let alone define, a singular “affiliated person.” Hence,




        7
           The defining antidumping regulation states that “[a]ffiliated persons” and “affiliated
parties” have the same meaning as in section 771(33) of the Act[,]” and in describing affiliated
relationships goes on to state that “[t]he Secretary will not find that control exists . . . unless the
relationship has the potential to impact decisions concerning the production, pricing, or cost of the
subject merchandise or foreign like product. The Secretary will consider the temporal aspect of a
relationship in determining whether control exists; normally, temporary circumstances will not
suffice as evidence of control.” 19 C.F.R. § 351.102(b).
Court No. 04-00493                                                                             Page 26


on the one hand, it is a stretch to interpret a single entity as being affiliated with itself, possibly

precluded by operation of merger.

       On the other hand, the antidumping statute more accurately describes functions, not entities.

A single entity may, in fact, wear “multiple hats” in the process of manufacturing, selling and

distributing merchandise. Commerce’s interpretation appears less contorted when considered in

such context. Cf., e.g., United Dominion Industries, Inc. v. United States, 532 U.S. 822 , 829-838

(2001) (affiliated group’s product liability loss must be figured on a consolidated, single-entity basis

and not by aggregating product liability losses, separately determined company by company);

N.L.R.B. v. Thalbo Corp., 171 F.3d 102, 114 (2nd Cir. 1999) (hotel operator and its affiliate were

single entity for purposes of the National Labor Relations Act); Joseph E. Seagram & Sons, Inc. v.

Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969), cert. denied, 396 U.S. 1062 (1970)

(common ownership and control do not liberate corporations from the impact of the antitrust laws).

       The fact that this determination involves export price and not constructed export price might

appear at odds with Commerce’s interpretation of subsection 1675(a)(4), cf. 19 U.S.C. § 1677a(a)

with § 1677a(b), however Commerce’s interpretation of subsection 1675(a)(4) appears to be a

reasonable, common-sense solution to what Congress attempted to accomplish with its enactment.

This conclusion is inherent from the statute’s focus—upon duty absorption in the foreign producer

or exporter—and therefore even if the meaning of “affiliate” were clear, and resort to legislative

history unnecessary, to find that the statute does not address the circumstance of the foreign producer

or exporter itself acting as the importer of record would result in an apparent absurdity.8


       8
            Discussion of the appropriate level of deference to be accorded to Commerce’s
interpretation is therefore obviated.
Court No. 04-00493                                                                      Page 27


                                          Conclusion

       For the foregoing reasons, this matter will be remanded to Commerce for reconsideration of

Agro Dutch’s movement expenses associated with the recalled merchandise.




                                                    /s/ R. Kenton Musgrave
                                                      R. KENTON MUSGRAVE, JUDGE

Dated: March 28, 2006
       New York, New York
