                                          Slip Op. 07-25

   UNITED STATES COURT OF INTERNATIONAL TRADE
__________________________________________
                                          :
AGRO DUTCH INDUSTRIES LIMITED,            :
                                          :
                  Plaintiff,              :
                                          :
                  v.                      :
                                          :
UNITED STATES,                            :                   Before: MUSGRAVE, Judge
                                          :
                  Defendant,              :                   Court. No. 02-00499
                                          :
                  and                     :
                                          :
COALITION FOR FAIR PRESERVED              :
MUSHROOM TRADE,                           :
                                          :
                  Defendant-Intervenor.   :
__________________________________________:

                                    OPINION AND ORDER

[Plaintiff argued that agency’s antidumping duty determinations were not proper in that: (1) the
agency’s use of partial facts available and adverse inferences for certain transactions was in error;
(2) that agency’s determination of plaintiff’s constructed value was in error; and (3) that agency’s
adjustment of plaintiff’s imputed credit expenses was in error. The court found: (1) agency’s
reasoning as to use of partial facts available and adverse inferences was not clear and remanded that
matter for further consideration; (2) agency’s determinations as to plaintiff’s constructed value
calculation was proper; and (3) agency’s determination as to plaintiff’s imputed credit expenses was
proper.]

                                                                          Dated: February 16, 2007

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

        Robert D. McCallum, Assistant Attorney General, Civil Division, United States Department
of Justice, Jeanne Davidson, Acting Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice (Stefan Shaibani, and Delfa Castillo); International Office of Chief
Counsel for Import Administration, United States Department of Commerce (William G. Isasi), of
counsel, for the defendant.
Court No. 02-00499                                                                              Page 2


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

       Before the court is plaintiff Agro Dutch Industries, Limited’s (“plaintiff,” “Agro Dutch,” or

“respondent”) motion for judgment on the agency record. Plaintiff challenges aspects of the United

States Department of Commerce’s (“defendant,” “Commerce,” or “Department”) determinations

made for the Second Administrative Review of the antidumping duty order covering certain

preserved mushrooms from India. See Certain Preserved Mushrooms From India: Final Results of

Antidumping Duty Admin. Review, 67 Fed. Reg. 46,172 (ITA July 12, 2002) (“Final Results”); see

id. at 14,173 (adopting reasoning of the Issues and Decision Memo. for [the] Final Results of the

Antidumping Duty Admin. Review on Certain Preserved Mushroom [sic] from India - February 1,

2000, through January 31, 2001, Pub. R. Doc. 154 (“Decision Memo”)). By its motion plaintiff

raises three main issues: (1) that the use of partial facts available and adverse inferences for certain

of plaintiff’s sales was improper; (2) that the methodology used to determine plaintiff’s constructed

value was in error; and (3) that the calculation of plaintiff’s imputed credit expenses was in error.1

                               Jurisdiction and Standard of Review

       The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) (2000). The court

must uphold Commerce’s determinations unless they are “unsupported by substantial evidence on

the record, or otherwise not in accordance with the law . . . .” 19 U.S.C. § 1516a(b)(1)(B) (2000).

Substantial evidence is “more than a mere scintilla, it means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Matsushita Elec. Indus. Co. v. United



       1
                Plaintiff also alleges that Commerce issued improper liquidation instructions. As
this matter is being remanded, the court does not reach this issue at this time.
Court No. 02-00499                                                                          Page 3


States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197,

229 (1938), and Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951)). This standard

requires “something less than the weight of the evidence, and the possibility of drawing two

inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from

being supported by substantial evidence.” Id. (quoting Consolo v. Fed. Mar. Comm’n, 383 U.S. 607,

619–20 (1966)). However, substantial evidence supporting an agency determination must be based

on the whole record, and a reviewing court must take into account not only that which supports the

agency’s conclusion, but also “whatever in the record fairly detracts from its weight.” Melex USA,

Inc. v. United States, 19 CIT 1130, 1132, 899 F. Supp. 632, 635 (1995) (citing Universal Camera,

340 U.S. at 488).

                                          Background

       Commerce published a notice in the Federal Register alerting interested parties that they

could request an administrative review of the antidumping duty order covering the subject

merchandise for the period of review of February 2000 through January 2001 (“POR”). See

Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opp’y to Req.

Admin. Review, 66 Fed. Reg. 10,269, 10,269 (ITA Feb. 14, 2001). Plaintiff requested review of its

antidumping duty margin, Commerce initiated a review thereof, and Commerce sent plaintiff an

antidumping questionnaire. See letter from law firm of Manatt, Phelps & Phillips LLP (“MPP”) to

Commerce of 2/26/01, Pub. R. Doc. 3; Initiation of Antidumping and Countervailing Duty Admin.

Reviews and Reqs. for Revocations in Part, 66 Fed. Reg. 16,037, 16,038 (ITA Mar. 22, 2001); letter

from Commerce to MPP of 3/30/01, Pub. R. Doc. 9, Attach. (“Questionnaire”).
Court No. 02-00499                                                                                Page 4


        Plaintiff timely submitted responses to the Questionnaire. See letter from MPP to Commerce

of 5/7/01, Conf. R. Doc. 3, Attach. (“Section A Response”); letter from MPP to Commerce of

5/25/01, Conf. R. Doc. 7, Attach. (“Section C Response”). In its responses, plaintiff answered

various questions about its sales and sales processes. Of relevance to this discussion, plaintiff

averred that each of its sales were individually negotiated, and indicated that once terms were agreed

to, they were firm. See Section A Resp. at 10 (“We negotiate product, price and quantity with our

customer via the telephone. Once we agree to terms, the price and quantity do not change. . . . Our

payment terms are 90 days after shipment.”); id. at 11; id. at 12 (“Both our customer and we [sic]

are bound to the order price regardless of the change in market prices that occur between [the] order

date and shipment date.”); id. (“All of our sales are made as described . . . above”); see also Section

C Resp. at C-12 (“All of our sales are made [with] payment terms of 90 days after bill of lading

date . . . . We have recorded a ‘3’ in this field [(“PAYTERMU”)] to indicate this payment term.”);

Section C Resp., App.2 (“Sales Database”) (showing a “3” entered in the PAYTERMU field for

every transaction). Plaintiff further stated that, for all of its transactions, it invoiced its customers

several days after the date of shipment, and considered the date of invoice to be the date of sale. See

Section A Resp. at 10 (“We invoice our customer within a few days after shipment.”); id. at 12

(“[W]e invoice our customer approximately two to five days after shipment. There are no

circumstances under which we would deviate from this practice.”); Section C Resp. at C-10 (“The




        2
                This document is a printout of all the data entered for plaintiff’s sales. It can be found
as part of the Section C Response immediately post Appendix C-3b.
Court No. 02-00499                                                                                   Page 5


date of sale is our date of invoice.”3); Sales Database at “SALINTU” column (showing all

transactions have an entered date of sale). Finally, plaintiff stated that it did “not have a written sales

contract with [its] customers.” Section A Resp. at 11.

        After an initial review of the Responses, Commerce requested additional information from

plaintiff. See letter from Commerce to MPP of 8/9/01, Pub. R. Doc. 80, Attach. (“August 9

Questionnaire”). By this questionnaire, Commerce specifically requested that plaintiff clarify

whether there existed “any sales agreement or contract . . . between Agro Dutch and it U.S.

customers,” and “whether or not Agro Dutch and its U.S. customers have any long-term or multi-

purchase contracts or agreements.” Id. at 1. In response, plaintiff stated that it did not have “any

binding contracts or agreements with any U.S. customers during the POR. The quantities and prices

of all sales are subject to change until the date of shipment.” Letter from MPP to Commerce of

8/30/01, Conf. R. Doc. 20, Attach. (“August 30 Response”) at 1.

        After reviewing plaintiff’s responses, the Coalition for Fair Preserved Mushroom Trade

(“Coalition” or “intervenor”) raised questions about certain information contained therein.

Specifically, the Coalition noted that, while plaintiff had stated in its Section A and C Responses that

all of its sales had terms that required payment ninety days after invoicing, some of plaintiff’s

transactions had “negative credit periods”—meaning that the entered payment date for a transaction

predated the entered sale date for that transaction (“NCP Transactions”). See letter from law firm

of Collier, Shannon, Scott, PLLC (“CSS”) to Commerce of 1/30/02, Conf. R. Doc. 30 (“Coalition’s

Comments”) at 5; see also Sales Database at obss. 79, 201, 209 (showing transactions with entered



        3
                For clarity, the court will refer to the date of sale/invoice as the date of sale.
Court No. 02-00499                                                                              Page 6


payment dates that predate entered sales dates). The Coalition speculated that these values might

have been entered in error as plaintiff had nowhere indicated in any of its responses that it had made

“prepayment” sales. Coalition’s Comments at 6. In response, plaintiff stated that the entered

payment dates for the NCP Transactions were, in fact, correct. See letter from law firm of Arnold

& Porter (“AP”) to Commerce of 2/11/02, Conf. R. Doc. 34 (“Reply to Comments”) at 2. Plaintiff

stated that the data reflected “cash advances” from one of its U.S. customers (“Customer A”4) that

“were paid in anticipation of future shipments for which the customer, product and price were not

determined at the time of the advance” (“The Arrangement”). Id.

       Commerce then published the preliminary results of its review. See Certain Preserved

Mushrooms from India: Prelim. Results of Antidumping Duty Admin. Review, 67 Fed. Reg. 10,371

(ITA Mar. 7, 2002) (“Preliminary Results”).          For the preliminary calculation of plaintiff’s

antidumping margin, Commerce determined that it could not use the data related to the NCP

Transactions. Commerce explained that this was so because: (1) plaintiff’s responses in the Reply

to Comments “suggest[] that Agro Dutch may have a long-term contract or sales agreement with

[Customer A], yet Agro Dutch claims that it had no binding contracts or agreements with any U.S.

customers during the POR,” id. at 10,374 (citing Aug. 30 Resp. at 1); and (2) “Agro Dutch’s

reporting of pre-payments appears inconsistent with its earlier statement that all of its U.S. sales are

sold with payment terms of 90 days after the bill of lading date.” Id. (citing Section C Resp. at C-

12). Commerce concluded that it would use facts available—and not the entered data for the NCP

Transactions—to calculate plaintiff’s preliminary antidumping margin because plaintiff’s



       4
               Customer A is identified in Conf. R. Doc. 34 at 2.
Court No. 02-00499                                                                              Page 7


“description of its sales to this customer requires further explanation as to the existence of any sales

agreement with this customer, the appropriate date of sale, and the relevant payment terms.” Id.

(citing 19 U.S.C. § 1677e(a)). Commerce further determined that it was necessary to use adverse

inferences when selecting among the facts available because plaintiff had “not cooperated to the best

of its ability to comply with the Department’s requests in the questionnaire and supplemental

questionnaire to supply full information of its payment terms and copies of any sales agreements.”

Id. (citing 19 U.S.C. § 1677e(b)). As a result of these determinations, Commerce calculated

plaintiff’s preliminary antidumping duty margin to be 1.54 percent. Id. at 10,376. In calculating

plaintiff’s preliminary antidumping duty margin, no issues were raised as to the data related to

plaintiff’s other sales to Customer A (“the POR Transactions”) and Commerce included that data

in calculating plaintiff’s preliminary antidumping margin. Finally, Commerce stated that it would

“provide Agro Dutch with the opportunity to provide further information on this topic after the

issuance of the preliminary results for consideration in the final results.” Id. at 10,374.

       After the Preliminary Results were published, Commerce sent plaintiff another supplemental

questionnaire. See letter from Commere to AP of 3/7/02, Pub. R. Doc. 129, Attach. (“March 7

Questionnaire”). Commerce requested that plaintiff:

               Explain in detail the sales and payment terms for transactions
               involving payment advances, as identified on page 2 of the [Reply to
               Comments]. In particular:

                       a. Specify whether or not any type of written sales
                       agreement or contract exists with regard to [Customer
                       A]. If so, provide the document(s). Explain why the
                       agreements were not provided earlier in response to
                       the Department’s questionnaire and supplemental
                       questionnaire.
Court No. 02-00499                                                                          Page 8


                      b. Explain the apparent contradiction between the
                      description of payment terms to [Customer A] in the
                      [Reply to Comments], and the statement at page C-12
                      of the [Section C Response] that all of Agro Dutch’s
                      U.S. sales are made with payment terms of 90 days
                      after the bill of lading date.

Id. at 1 (emphasis in original). Plaintiff timely responded to this supplemental questionnaire. See

letter from AP to Commerce of 3/26/02, Conf. R. Doc. 47, Attach. (“March 26 Response”). In

response to Commerce’s question to “[e]xplain in detail the sales and payment terms,” plaintiff

stated that

                       [Customer A] is both a customer of ADIL and a sales agent.
               That is it both purchases ADIL mushrooms for its own account, and
               also serves as a sales agent for ADIL sales to other customers.
               [Customer A] earns a commission from ADIL for certain sales for
               which it acts as an agent.

                       [Customer A] asked us to produce a product for shipment
               during the POI that we were not then producing — A-1 mushrooms,
               which are Grade A mushrooms that are sliced 3/8” [sic] thick rather
               than the standard 3/16” [sic] thick. We understand that [Customer A
               sells this product to a U.S. buyer]. ADIL was concerned that if it
               began producing this product, and [Customer A] were to cancel an
               order, ADIL would not be able to resell this customized product . . . .
               To satisfy this concern, and provide assurance that it would complete
               all purchases, [Customer A] provided advance payment deposits . . . ,
               in effect as security for future sales of a new product.

                       There is no written agreement, only an oral understanding.
               Moreover, the advances were provided without regard to definite
               future sales. Indeed the whole idea of the advance was to provide a
               form of security against future orders. There was no corresponding
               contemporaneous agreement to ship specific quantities to specific
               customers at specific prices.

                       As we began shipping A-1 mushrooms, and they were
               accepted by the ultimate customer, [Customer A] sought the quick
               return of its advance payments. We agreed to credit the deposits
Court No. 02-00499                                                                               Page 9


                against sales of other products as well as A-1 mushrooms. In
                addition, we agreed to credit the advance payments against sales to
                other customers who would agree to pay the invoiced amounts to
                [Customer A] rather than to us. This enabled [Customer A] to
                recover its advance payments earlier. The invoices at issue note that
                the sale was made against advance payment, and where [Customer A]
                was not the customer, it is shown as the consignee. For these sales,
                [Customer A] collected payment from the ultimate customer.

Id. at 1–2 (citation omitted); see id. at Ex. 5 (sample invoice listing Customer A as consignee). In

response to Commerce’s question as to whether there was or was not a “written sales agreement or

contract” between plaintiff and Customer A, plaintiff stated that “[n]o written sales agreement or

contract between ADIL and any customer, including [Customer A] of any type was in effect during

the POR or regarding sales made during the POR.” Id. at 2. Finally, in response to Commerce’s

question that plaintiff “explain the apparent contradiction” of its claim that all of its sales were made

with ninety-day payment terms and the data on the record showing that not all sales were made in

this manner, plaintiff stated that

                ADIL’s standard payment terms are 90 days after bill of lading date,
                and these terms applied to all customers during the POR. With
                respect to the advance payments made by [Customer A], obviously
                the customer paid in advance and thus did not have 90 days to pay.
                For those sales to which the advance payments were applied, it would
                have been more accurate to state that the terms of payment were
                payment in advance.

Id. Thereafter, Commerce published the Final Results.

        For the Final Results, Commerce continued to find that the use of facts available and adverse

inferences was warranted for the NCP Transactions. See Decision Memo at 7–10 (“Comment 2”).

Unlike the Preliminary Results, however, for the Final Results Commerce found that the use of facts

available and adverse inferences was warranted for all of plaintiff’s sales to Customer A—including
Court No. 02-00499                                                                         Page 10


the POR Transactions. See id. at 8–9; see also Agro Dutch Final Results Margin Calculation

Program Log and Output, Conf. R. Doc. 54 at ll. 335–340 (stating that the “[f]ollowing programing

to apply AFA rate to all sales to [Customer A], per discussion in Decision Memo, Comment 2 . . . .”

(emphasis added)). In Comment 2, Commerce explained why use of facts available was warranted

for all of these transactions:

                [D]espite specific requests from the Department to Agro Dutch in the
                instant review to provide documentation and information concerning
                this specific sales channel, Agro Dutch failed to provide this
                information until the post-preliminary results March 26, 2002,
                submission. In this review, Agro Dutch first reported that all of its
                U.S. sales are sold with payment terms of 90 days after the bill of
                lading date (see May 25, 2001, Section C questionnaire response at
                page C-12). It also asserted that it had no binding contracts or sales
                agreements with any U.S. customers during the POR (see August 30,
                2001, supplemental questionnaire response at page 1[)]. Nowhere in
                the May 7, 2001, Section A response discussion on sales process or
                any other response does Agro Dutch refer to advance payment sales
                circumstances involving [Customer A]. Not until the Department
                sought clarification of Agro Dutch’s reported payments, shortly
                before the due date of the preliminary results, did Agro Dutch first
                mention these unusual sales circumstances (see February 11, 2002,
                response at page 2). Only after the preliminary results of this review
                and another supplemental questionnaire did Agro Dutch provide any
                details about sales to the customer in question in the March 26, 2002,
                submission (in full, ten months after the Department first requested
                Agro Dutch’s sales information in its initial questionnaire).

                        However, this belated explanation raises more questions than
                it answers. Agro Dutch’s March 26, 2002, explanation indicates that
                the customer provided a great deal of money to Agro Dutch merely
                as a deposit against future orders for which no written agreement or
                contract was required, nor any guarantees on pricing. To advance
                such a large amount of money without any further legal commitment
                or security reflects an unusual business agreement that requires
                further explanation. If no sales agreement or contract exists beyond
                an “oral understanding” (see the March 16, 2002, submission at page
                1), then such a deal implies either a great deal of trust on the part of
Court No. 02-00499                                                                          Page 11


               the customer, or that the customer has some other form of
               relationship to Agro Dutch.

                       Not only is the appropriate date of sale and payment date in
               question, but also other key sales issues, such as the role of the
               customer as a sales and payment agent, the relationship of the
               customer to Agro Dutch, and even the price basis for the sales (i.e.,
               Agro Dutch’s price to the customer in question, or price that the other
               customers paid this customer, as noted at page 1 of the March 26,
               2002, response). The petitioners suggested in their case brief that
               sales through this customer may be considered more appropriately as
               constructed export price sales, rather than EP sales. While the record
               information does not support this conclusion, we cannot entirely rule
               out this possibility, given the questions that remain about this sales
               channel. There is a great deal more to be learned about these sales,
               but no further opportunity in this proceeding to obtain the information
               because Agro Dutch failed to provide this sales information until late
               in the proceeding. Because Agro Dutch withheld information
               requested by the Department related to these sales . . . , we have
               determined that facts available is warranted in this instance.

Comment 2 at 8–9 (citing 19 U.S.C. § 1677e(a)(2)(A)). Furthermore, Commerce determined that

the use of adverse inferences was warranted for all of plaintiff’s transactions with Customer A.

Commerce explained that

               the Department’s lack of full knowledge about the sales involving
               this customer, as well as those sales where the customer acted as a
               payment agent, stems directly from Agro Dutch’s lack of cooperation
               in providing specifically requested information in this review. This
               information was maintained in Agro Dutch’s records and was within
               its control, but Agro Dutch failed to provide the information in its
               questionnaire response. Thus, Agro Dutch has not cooperated with
               respect to providing this information and an adverse inference is
               warranted in applying facts available for the sales made to the
               customer in question . . . .

Id. at 9 (citing 19 U.S.C. § 1677e(b)). Using facts available and adverse inferences for both the NCP
Court No. 02-00499                                                                          Page 12


and POR Transactions, Commerce calculated plaintiff’s final antidumping duty margin to be 27.80

percent.

                                               Discussion

                                                     I

       The court first examines plaintiff’s contention that Commerce’s use of partial facts available

and adverse inferences was not proper. Commerce may use facts available in calculating an

antidumping duty margin. The statute provides, in relevant part:

       (a) In general. If– . . .

               (2) an interested party or any other person–

                        (A) withholds information that has been requested
                        by the administering authority . . . under this title, . . .

               the administering authority . . . shall, subject to section 782(d), use
               the facts otherwise available in reaching the applicable determination
               under this title.

19 U.S.C. § 1677e(a)(2)(A) (2000). Section 782(d) (19 U.S.C. § 1677m(d)) provides:

               If the administering authority . . . determines that a response to a
               request for information under this title does not comply with the
               request, the administering authority . . . shall promptly inform the
               person submitting the response of the nature of the deficiency and
               shall, to the extent practicable, provide that person with an
               opportunity to remedy or explain the deficiency in light of the time
               limits established for the completion of investigations or reviews
               under this title. If that person submits further information in response
               to such deficiency and either–

                        (1) the administering authority . . . finds that such
                        response is not satisfactory, or

                        (2) such response is not submitted within the
                        applicable time limits,
Court No. 02-00499                                                                            Page 13


               then the administering authority . . . may, subject to subsection (e),
               disregard all or part of the original and subsequent responses.

19 U.S.C. § 1677m(d) (2000). Section 782(e) (19 U.S.C. § 1677m(e)) provides:

               In reaching a determination . . . the administering authority . . . shall
               not decline to consider information that is submitted by an interested
               party and is necessary to the determination but does not meet all the
               applicable requirements established by the administering authority or
               the Commission, if–

                       (1) the information is submitted by the deadline
                       established for its submission,

                       (2) the information can be verified,

                       (3) the information is not so incomplete that it cannot
                       serve as a reliable basis for reaching the applicable
                       determination,

                       (4) the interested party has demonstrated that it acted
                       to the best of its ability in providing the information
                       and meeting the requirements established by the
                       administering authority . . . with respect to the
                       information, and

                       (5) the information can be used without undue
                       difficulties.

19 U.S.C. § 1677m(e). Here, the court understands that there are three distinct components to

Commerce’s facts available and adverse inferences determinations: The Arrangement, The NCP

Transactions, and the POR Transactions. The difficulty in reviewing Commerce’s determinations

with respect to these distinct factual situations is that it is not entirely clear how Commerce arrived

at its conclusions. Nucor Corp. v. United States, 414 F.3d 1331, 1339 (Fed. Cir. 2005) (“Where an

agency has not made a particular determination explicitly, the agency’s ruling nonetheless may be

sustained as long as ‘the path of the agency may be reasonably discerned.’” (citing Ceramica
Court No. 02-00499                                                                         Page 14


Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir. 1987))); Hynix Semiconductor

Inc. v. United States, 30 CIT __, __, 425 F. Supp. 2d 1287, 1307 (2006) (quoting Bowman Transp.,

Inc. v. Ark.-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)). Here, the court cannot uphold

Commerce’s determinations with regard to the use of partial facts available and adverse inferences

for several reasons.

       First, Commerce’s reasoning as to the use of facts available and adverse inferences for The

Arrangement cannot be “reasonably discerned.” For example, The Arrangement is variously

characterized as being for “cash advances” or “security for future sales” or “advance payments.” See

Reply to Comments at 2; March 26 Response at 1–2; Preliminary Results at 10,374. The proper

characterization of The Arrangement would seem vital to Commerce’s determination, but Commerce

never fully resolves this important issue or explains why such resolution is unnecessary to its

determination. Furthermore, Commerce’s determination as to The Arrangement is not clear because

the analyses for The Arrangement, the NCP Transactions and the POR Transactions are intertwined.

For instance, Commerce seems to find that, because the use of facts available might be warranted

for The Arrangement, that—in and of itself—is sufficient reason to find the use of facts available

was warranted for the NCP and POR Transactions. See Decision Memo at 8–9. This cannot be,

however, because the NCP and POR transactions, while possibly related in some way to The

Arrangement, are distinct factual situations that require separate analyses. While the court

appreciates that Commerce has provided some analysis of this complex situation, due to that

complexity, a clear and distinct recitation of Commerce’s reasoning is necessary to facilitate the
Court No. 02-00499                                                                           Page 15


proper review of Commerce’s determination as to The Arrangement.5

       Second, Commerce’s reasoning as to the use of facts available and adverse inferences for the

NCP Transactions cannot be “reasonably discerned.” A review of the record shows that the only

reason provided for using facts available for the NCP Transactions was that plaintiff “withheld” sales

and payment data. See Comment 2 at 9 (citing 19 U.S.C. § 1677e(a)(2)(A)). The data contained in

plaintiff’s responses, however, seems to contradict this conclusion. Specifically, plaintiff did enter

a sale date for every one of its transactions—including the NCP Transactions—and those values do

not seem aberrational. See Sales Database at SALEINTU column. Thus, it is not clear how plaintiff

“withheld” this information. Furthermore, while the record seems to show that there are unexpected

data points in the PAYDATEU field for the NCP Transactions, it also appears that the amount of

money “assigned” to Customer A for these transactions is not necessarily aberrational, in that the

payment amounts for similar transactions seem equivalent. Compare Sales Database obs. 78 with

obs. 79 (same merchandise/buyer). This being so, it is not clear how these transactions differ

fundamentally from those that Commerce was able to use to calculate plaintiff’s antidumping

margin.6    Indeed, Commerce nowhere explains in detail—with reference to its statutory



       5
                The fact that Commerce’s analysis cannot be “reasonably discerned” is reflected in
the parties’ submissions, which do not provide separate analyses for The Arrangement, the NCP
Transactions, or the POR Transactions. See generally Pl.’s Resp. at 9–16, Def.’s Resp. at 10–19.
Indeed, only intervenor mentions the NCP and POR Transactions—and then only in passing. See
Intervenor’s Resp. at 29, 30.
       6
                 To put it a slightly different way: “but for” the apparent random assignment of the
payments for the NCP Transactions to Customer A, it seems beyond doubt that those transactions
would have had entered payment dates that conformed to plaintiff’s Section A and C Responses.
Were that the case, it would be logical that Commerce would have used that data to calculate
plaintiff’s antidumping duty margin.
Court No. 02-00499                                                                            Page 16


mandate—how this data is “missing” such that the court can now conclude that the use of facts

available and adverse inferences was proper for the NCP Transactions. See 19 U.S.C. §§ 1677m(d),

(e); Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382–83 (Fed. Cir. 2003) (discussing use

of facts available and adverse inferences).

       Finally, Commerce’s reasoning as to the use of fact available and adverse inferences for the

POR Transactions cannot be “reasonably discerned.” Again, the only reason given for resorting to

facts available for the POR Transactions is that plaintiff “withheld” sale and payment date data for

them. See Comment 2 at 9 (citing 19 U.S.C. § 1677e(a)(2)(A)). As with the NCP Transactions,

however, plaintiff did enter sales dates for each of these transactions. See Sales Database at

SALEINTU column. Furthermore, plaintiff entered payment dates for these transactions that appear

to conform to plaintiff’s Sections A and C Responses. See id. at PAYDATEU column. Indeed, it

is entirely unclear how this data is “missing,” as Commerce was able to use it to calculate plaintiff’s

preliminary antidumping duty margin. See Preliminary Results, 67 Fed. Reg. at 10,374. Therefore,

the court is unable to conclude that Commerce’s use of facts available and adverse inferences for the

POR Transactions was proper. See 19 U.S.C. §§ 1677m(d), (e); Nippon, 337 F.3d at 1382–83.

       For the above reasons, the court cannot find that Commerce’s determination that use of

partial facts available and adverse inferences was warranted for The Arrangement, the NCP

Transactions, or the POR Transactions was proper. On remand, Commerce shall provide separate

analyses for The Arrangement, the NCP Transactions, and the POR Transactions and clearly state

how each of its determinations are in accordance with its statutory mandate and cite to specific

record evidence in support thereof.
Court No. 02-00499                                                                          Page 17


                                                 II

       Plaintiff next contends that Commerce’s determination as to constructed value was not

proper. Plaintiff raises two arguments in this regard: (1) that Commerce’s selection of plaintiff’s

profit rate from the immediately preceding review was not in accordance with law; and (2) that

Commerce did not properly apply the statutory profit cap. The court turns to each contention in turn.

                                                 A

       For the Final Results, Commerce determined that it was necessary to use constructed value

to calculate plaintiff’s antidumping duty margin. See Decision Memo at 3–6 (“Comment 1”).

Commerce determined that was so because plaintiff had neither home-market nor third-country sales

during the period of review upon which to base normal value. See Comment 1 at 3 (citing 19 U.S.C.

§ 1677b(a)(4)). Thus, Commerce looked to other sources to derive a profit rate and selling expenses

for constructed value. See id. (citing 19 U.S.C. § 1677b(e)). Specifically, Commerce had to

determine constructed value in accordance with one of the three statutory alternatives provided by

19 U.S.C. § 1677b(e)(2)(B). The statute provides, in relevant part:

       (e) Constructed value. For purposes of this title, the constructed value of imported
       merchandise shall be an amount equal to the sum of-- . . .

               (2) (A) the actual amounts incurred and realized by the specific
               exporter or producer . . . , or

               (B) if actual data are not available with respect to the amounts
               described in subparagraph (A), then--

                       (i) the actual amounts incurred and realized by the
                       specific exporter or producer being examined in the
                       investigation or review for selling, general, and
                       administrative expenses, and for profits, in connection
                       with the production and sale, for consumption in the
Court No. 02-00499                                                                          Page 18


                       foreign country, of merchandise that is in the same
                       general category of products as the subject
                       merchandise,

                       (ii) the weighted average of the actual amounts
                       incurred and realized by exporters or producers that
                       are subject to the investigation or review (other than
                       the exporter or producer described in clause (i)) for
                       selling, general, and administrative expenses, and for
                       profits, in connection with the production and sale of
                       a foreign like product, in the ordinary course of trade,
                       for consumption in the foreign country, or

                       (iii) the amounts incurred and realized for selling,
                       general, and administrative expenses, and for profits,
                       based on any other reasonable method, except that the
                       amount allowed for profit may not exceed the amount
                       normally realized by exporters or producers (other
                       than the exporter or producer described in clause (i))
                       in connection with the sale, for consumption in the
                       foreign country, of merchandise that is in the same
                       general category of products as the subject
                       merchandise . . . .

19 U.S.C. § 1677b(e) (2000). Due to issues related to the possible revelation of proprietary data,

Commerce determined that it could not use the first two statutory alternatives and, so, turned to the

third (“Alternative 3”)7. Commerce noted that, when it had used Alternative 3 in the past, it weighed

various factors to select the proper data. See Comment 1 at 4 (citing Notice of Final Determination

of Sales at Less Than Fair Value: Pure Magnesium from Isr., 66 Fed. Reg. 49,349 (ITA Sep. 27,

2001)). Commerce explained that

               in Magnesium from Israel, where the Department also applied
               Alternative 3 in determining the profit rate, the Department selected
               the most appropriate profit rate based on several factors, including:
               (1) the similarity of the potential surrogate companies’ business


       7
               No party disagrees with Commerce’s selection of Alternative 3.
Court No. 02-00499                                                                        Page 19


               operations and products to the respondent’s; (2) the extent to which
               the financial data of the surrogate company reflects sales in the
               United States as well as the home market; and (3) the
               contemporaneity of the surrogate data to the period of investigation
               or review. In that proceeding, the Department selected a profit rate
               derived from the 2000 financial data of an Israeli company that was
               found to have the most similar production process to the respondent.
               The other financial data available in that investigation was from 1999
               and less contemporaneous with the period of investigation.

Id. Using this test, Commerce determined that it would use plaintiff’s own data for the constructed

value calculation. Id. In support, Commerce stated that

               [a]pplying the same criteria to this review does not change our profit
               rate selection [from the Preliminary Results]. The use of the
               respondent’s own data obviously best satisfies the first factor. The
               Agro Dutch . . . rate[] also [is] based on sales to the comparison
               market and not on U.S. sales. As for contemporaneity, the third
               factor, we note that the profit rate experience from the 1998--2000
               review period reflects the time period immediately prior to the instant
               review. There is no information on the record to suggest that the
               profit rate experience from that period is so different from the instant
               period to render those profit rates distortive. Moreover, the
               specificity of Agro Dutch’s . . . own financial data outweighs the
               contemporaneity of Himalya’s financial data in selecting the most
               appropriate profit rates. We disagree with the petitioners that the
               Himalya POR rate can be averaged with Agro Dutch’s . . . 1998--
               2000 profit rate without the possibility of disclosing Himalya’s
               proprietary information to Agro Dutch . . . . Further, averaging
               Himalya’s POR data with each of the other respondents’ own 1998--
               2000 data does not necessarily make the resulting average rate a more
               appropriate rate. There is no information on the record to indicate that
               the difference between the respondent’s 1998--2000 data and
               Himalya’s POR rate is due to contemporaneity rather than differences
               in business operations and products.

Id. at 5–6.

        Plaintiff contends that Commerce’s selection of plaintiff’s own data was not proper.

Specifically, plaintiff argues that, when using Alternative 3, Commerce is constrained to use home
Court No. 02-00499                                                                          Page 20


market data where such data is available. See Pl.’s Mem. at 19 (citing Issues and Decision Memo.

for the 1999–2000 Antidumping Admin. Review: Fresh Salmon from Chile, (Aug. 6, 2001)).

Plaintiff argues that this “preference” is shown by the phrase “for consumption in the foreign

country” appearing in each of the three relevant subsections. Id. at 19; see 19 U.S.C. §§

1677b(2)(B)(i)–(iii). Plaintiff claims that, rather than using the selected data, Commerce “should

have used home market profit from the first period of review, not third county profit from the first

period of review . . . .” Id. at 21.

        The court does not agree that the statute contains such a “preference” or that Commerce was

required to use home market profit data when using Alternative 3. This is so because this Court has

visited this issue and found that Alternative 3 does not contain a general “preference” for home

market data. See Geum Poong Corp. v. United States, 25 CIT 1089, 1093, 163 F. Supp. 2d 669,

675–76 (2001). In Geum Poong, the Court considered whether Commerce, using Alternative 3, was

limited to using available home market selling expense data—as opposed to available third country

selling expense data. Id. The Court found that Commerce was not so constrained, stating that the

phrase “for consumption in the foreign country” applied only to the “profit cap” language of

Alternative 3, and not the entire subsection. See id. at 1093, 163 F. Supp. 2d at 675. The Court

continued that “Commerce properly calculated selling expenses according to ‘any reasonable

method’ without limitation as to whether the underlying data had been derived from home market

or non-home market sales.” Id. at 1094–95, 163 F. Supp. 2d at 677. Here, Commerce, using

Alternative 3, was faced with a comparable situation, in that it is selecting between home market

profit rates and third country profit rates. Because Alternative 3 does not evince a “preference” for
Court No. 02-00499                                                                           Page 21


home market data (even though such data might exist) Commerce was free to use “any reasonable

method” to determine plaintiff’s constructed value. Id. Indeed, Commerce provided an explanation

as to why it was using this data as opposed to other, available, home-market data. Thus, the court

finds that Commerce’s determination to use plaintiff’s own third country profit data for plaintiff’s

constructed value calculation was proper.

                                                   B

       For the Final Results Commerce applied the statutory “profit cap” when calculating

plaintiff’s antidumping duty margin. To determine the profit cap Commerce considered information

from several sources: (1) data from another respondent in the instant investigation; (2) data from two

respondents from the immediately preceding administrative review; and (3) data from the period of

review for several food companies that did not produce the subject merchandise. See Comment 1

at 68. After considering these various sources, Commerce selected the profit rates of the three

mushroom producers/exporters to determine the profit cap. Id. In support of its determination

Commerce explained that

               the three preserved mushroom exporter/producer profit rates meet the
               statutory requirement because the rates reflect the profit normally
               realized by exporters or producers in connection with the sale, for
               consumption in India of preserved mushrooms, which, as the subject
               merchandise, fall within the definition of the same general category
               of products as the subject merchandise. The statute does not specify
               the contemporaneity of the data, and we consider the information
               from the immediately prior review to be sufficiently
               contemporaneous for this purpose because there is no information on
               the record to the contrary (i.e., no reason to believe the profit rates are
               significantly different in this POR than the last).


       8
               The companies’ products included dried and processed fruits, spices, vegetable
products, charcoal, and soft drinks. Pl.’s Mem. at 22.
Court No. 02-00499                                                                           Page 22


               We are not using the profit rates derived from the [non-subject
               merchandise producing companies’] financial statements in
               determining the profit cap because their data is less relevant than that
               of the reviewed companies. . . .

Id. Using this data, Commerce “compared the 1998-2000 profit rate[] for Agro Dutch . . . to the

profit cap. [This rate did not] exceeded the profit cap (i.e., the highest profit rate among those

included in the profit cap determination) under Alternative 3.” Id. at 6 (citing Constructed Value

Profit Rate Cap Comparison, Conf. R. Doc. 52).

       Plaintiff argues that Commerce improperly applied the profit cap. Plaintiff contends that it

was improper for Commerce to select “the highest individual profit rate achieved by producers of

subject mushrooms on sales in India during the past two periods of review.” Pl.’s Mem. at 22

(emphasis removed). Plaintiff continues that “such an approach is inconsistent with the statute’s

requirement that the Department use as the profit cap the amount ‘normally realized.’ Stated simply,

the highest individual profit rate is not the amount ‘normally realized.’” Pl.’s Mem. at 22. Plaintiff

argues that, instead, Commerce should have used profit data that it placed on the record “for other

Indian food products companies,” as this data closely corresponded with the fiscal year of the period

of review. Pl.’s Mem. at 22. Plaintiff states that “[t]hese food processing companies all produce

processed food products . . . .” Id.

       In essence, plaintiff raises two issues. The first is whether Commerce had the discretion to

select from among the various data on the record for the profit cap; the second is whether, after

selecting that data, Commerce properly used that information to determine a profit cap. As to the

first issue, as previously discussed, when using Alternative 3 Commerce may use “any reasonable

method” in order to determine constructed value. See 19 U.S.C. 1677b(e)(2)(iii); Geum Poong, 25
Court No. 02-00499                                                                           Page 23


CIT at 1093, 163 F. Supp. 2d at 675–76. The only limitation placed on Commerce’s determination

of constructed value is that, unless unusual circumstances warrant, it must apply a profit cap that is

based on home market sales. See 19 U.S.C. 1677b(e)(2)(iii); Geum Poong, at 1093, 163 F. Supp.

2d at 675. Here, the court cannot say, given that Commerce may use “any reasonable method,” that

it was improper for Commerce to reject home market data that it considered “less relevant” in favor

of other data. Indeed, plaintiff makes no argument to the contrary. See Pl.’s Mem. at 16–21; Pl.’s

Reply at 6–7.

       As to the second issue—whether Commerce properly used the data it selected for

determining the profit rate—plaintiff argues that Commerce should have used a profit cap that was

an average of available rates. See Pl.’s Mem. at 23 (citing Floral Trade Council v. United States,

41 F. Supp. 2d 319, 332 (1999); Magnesium from Isr., 66 Fed. Reg. 49,349 (Comment 8)); Pl.’s

Reply at 7 (“Even if the Court [sic] uses the profit rates of [the] three mushroom companies rather

than the profit rates of the four fruit and vegetable companies, the Department should use the average

rates from the companies selected, not the highest rate.”). Again, there is nothing in the language

of the statute that requires Commerce to average rates when determining the profit cap under

Alternative 3. See 19 U.S.C. § 1677b(e)(2)(iii); compare id. with 19 U.S.C. § 1677b(e)(2)(ii)

(providing that constructed value be based on “the weighted average of the actual amounts incurred

and realized by exporters or producers . . . .”). Indeed, one of plaintiff’s cited sources undermines

its position that it is Commerce’s “normal practice” to average rates. See Magnesium from Isr.,

Comment 8 (stating that “the Department has on the record the financial statements of three

surrogate companies from which to select a reasonable CV profit rate or to calculate an average
Court No. 02-00499                                                                        Page 24


profit rate if more than one surrogate’s data is equally reasonable.” (emphasis added)). This being

so, the court cannot say that it was improper for Commerce to select—in this instance—the “highest”

profit rate for the profit cap.

                                                  III

        Finally, for the Final Results, Commerce revised plaintiff’s imputed credit expense data

because plaintiff deducted commissions from this amount. Commerce explained that it was proper

to do so because,

                [i]n accordance with Department practice, we normally impute credit
                based on the gross price less any price adjustments granted at the time
                of invoicing. As commissions are not considered price adjustments
                for purposes of calculating imputed credit, and there are no other
                adjustments to price at the time of invoicing, we recalculated Agro
                Dutch’s imputed credit expense based on the gross price without any
                deductions.

Comment 1 at 2 9. Plaintiff argues that Commerce’s calculation of its imputed credit expenses was

not in accordance with law. Plaintiff contends—in full—that

                the Department wrongly calculated Agro Dutch’s imputed credit
                expense based on the gross sales value, rather than on the gross sales
                value less commissions paid to third parties. Credit expenses are the
                costs of financing accounts receivables. The Department’s inclusion
                of commission in calculating imputed credit ignores the fact that
                commissions are not paid by Agro Dutch until it receives payment
                from its customer. In other words, Agro Dutch finances only its net
                sales proceeds, not commissions. As a result, the Department should
                have deducted commissions prior to calculating the credit expense.



        9
               The Questionnaire instructions provide guidance as to the meaning of the term
“imputed expenses.” See Questionnaire at I-9 (“Imputed expenses generally are opportunity costs
(rather than actual costs) that are not reflected in the financial records of the company being
investigated, but which must be estimated and reported for purposes of an antidumping inquiry.
Common examples of imputed expenses include credit expenses and inventory carrying costs.”).
Court No. 02-00499                                                                                Page 25


Pl.’s Mem. at 23–24. Defendant responds that Commerce’s adjustment to plaintiff’s imputed credit

expenses was proper because it was “[c]onsistent with its standard methodology,” and that

Commerce includes this expense in the antidumping calculation “to estimate the opportunity cost

of money incurred by a company from the time . . . merchandise is shipped from the seller’s facility

until the seller receives payment for the goods.” Def.’s Resp. at 32 (citations omitted). Intervenor

responds by presenting two reasons why Commerce’s should be found proper. First, intervenor

argues that, because plaintiff failed to raise this issue at the administrative level, it is prevented from

doing so now due to the doctrine of exhaustion of administrative remedies. See Intervenor’s Resp.

at 47; 28 U.S.C.§ 2637(d) (stating that the court “shall, where appropriate, require the exhaustion

of administrative remedies.”); JCM, Ltd. v. United States, 210 F.3d 1357, 1359 (Fed. Cir. 1999) (“In

the antidumping context, Congress has prescribed a clear, step-by-step process for a claimant to

follow, and the failure to do so precludes it from obtaining review of that issue in the Court of

International Trade.” (citing Sandvik Steel Co. v. United States, 164 F.3d 596, 599–600 (Fed. Cir.

1998); National Corn Growers Ass’n v. Baker, 840 F.2d 1547, 1555–57 (Fed. Cir. 1988))). Second,

in an argument that parallels defendant’s, intervenor contends that plaintiff’s position lacks merit

because “[i]mputed credit measures the value of the good sold from the time it is shipped from the

seller to the time the buyer makes payment. Imputed credit is based on the gross price of the good

between the buyer and seller.” Intervenor’s Resp. at 50.

        Defendant and intervenor’s points are well taken. Indeed, plaintiff—beyond merely alleging,

in its moving brief, that Commerce’s determination was not proper—cites neither statute, regulation,

nor case law in support of its position. See Pl.’s Mem. at 23–24. Furthermore, plaintiff, in its reply
Court No. 02-00499                                                                          Page 26


brief, in no way challenges either defendant’s or intervenor’s arguments that Commerce was using

its “standard methodology,” or intervenor’s argument that this issue should have been raised at the

administrative level. Id. As plaintiff neither presses its own argument nor takes issue with those of

defendant and intervenor, the court considers plaintiff to have abandoned its position as to

Commerce’s adjustment of its imputed credit expenses and finds that Commerce’s determination

in this regard proper.

                                            Conclusion

       For the foregoing reasons, the court remands this matter so that Commerce may re-visit its

determination that the use of partial facts available and adverse inferences was warranted as to The

Arrangement, the NCP Transactions, and the POR Transactions. Commerce shall file the results of

this remand within sixty days of the date of this opinion; all parties may submit comments to the

remand results within 30 days of filing; and all parties may file responses to any such comments

within 10 days after the submission thereof. As to the other issues addressed in this opinion, the

court finds that Commerce’s determinations are supported by substantial evidence and otherwise in

accordance with law.

       SO ORDERED

                                                        /s/ R. Kenton Musgrave
                                                       R. Kenton Musgrave, Judge

Dated: February 16, 2007
       New York, New York
