AK Steel Corp. v. United States

Slip Op. 04 - 108

UNITED STATES COURT OF INTERNATIONAL TRADE
:
AK STEEL CORPORATION, :
:
Plaintiff, :
:
v. : Before: MUSGRAVE, JUDGE
:
UNITED STATES, : Court No. 03-00102
:
Defendant, :
:
and :
:
THYSSENKRUPP NIROSTA GmbH and :
THYSSENKRUPP VDM GmbH, :
:
Defendant-Intervenors. :
:

[On Rule 56.2 motion for summary judgment regarding deductibility of indirect selling expenses and
inference on missing data at antidumping duty administrative review, judgment for the defendant.]

Decided: August 25, 2004

Collier Shannon Scott, PLLC, Washington D.C. (David A. Hartquist, Jeffrey S. Beckington,
Adam H. Gordon), for the plaintiff.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director, Civil Division,
Commercial Litigation Branch, United States Department of Justice (Cristina C. Ashworth); Office
of Chief Counsel for Import Administration, U.S. Department of Commerce (Elizabeth Doyle,
Bernice Brown), of counsel; Office of Assistant Chief Counsel, International Trade Litigation, U.S.
Bureau of Customs and Border Protection (Ellen Daly), of counsel, for the defendant.

Hogan & Hartson L.L.P. (T. Clark Weymouth, Craig Lewis, and Behnaz L. Kibria),
Washington, D.C., for the defendant-intervenors.

OPINION

Plaintiff AK Steel Corporation, a domestic petitioner, contests Stainless Steel Sheet and Strip

in Coils From Germany; Notice of Final Results of Antidumping Duty Administrative Review, 68
Court No. 03-00102 Page 2

Fed. Reg. 6716 (Feb. 10, 2003) (“Final Results”), PR1 50 (amended at 68 Fed. Reg. 14193 (Mar. 24,

2003), PR 54), as administered by the Department of Commerce, International Trade Administration

(“Commerce” or the “Department”). This opinion presumes familiarity with general antidumping

law. The administrative review of the outstanding antidumping order2 covers the period July 1,

2000, through June 30, 2001 (“POR”), and entries of subject merchandise from respondent

ThyssenKrupp Nirosta GmbH (“ThyssenKrupp”), defendant-intervenor herein.

AK Steel raises two claims. The first is that Commerce improperly failed to deduct all

relevant indirect selling expenses from the constructed export price of the subject merchandise

before making the statutory comparison to normal value. The other is that Commerce erred by

failing to apply partial adverse facts available to certain home market sales that were reported with

incomplete data. Commerce and the defendant-intervenors argue in favor of sustaining the Final

Results as is. For the following reasons, judgment for the defendant is appropriate.

Jurisdiction and Standard of Review

This 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 antidumping duty review determination unsupported by substantial

evidence on the record or otherwise not in accordance with law will not be sustained. 19 U.S.C. §

1516a(b)(1)(B)(i).

1
The public and proprietary documents of the administrative record are herein referenced
“PR” and CR,” respectively. “Stainless steel sheet and strip” is occasionally referenced in the
administrative record as “S4.”
2
See Notice of Amended Final Determination of Sales at Less than Fair Value and
Antidumping Duty Order; Stainless Steel Sheet and Strip in Coils from Germany, 64 Fed. Reg.
40557 (July 27, 1999).
Court No. 03-00102 Page 3

Discussion

I. Indirect Selling Expenses

AK Steel’s first claim concerns certain statutory adjustments to the U.S. price of the subject

merchandise. Each of Thyssenkrupp’s sales to the U.S. consisted of an “upstream” sale from the

German producer/exporter to an affiliated U.S. reseller, and a “downstream” sale from the affiliate

to an unaffiliated U.S. customer. During the first three months of the POR, the subject merchandise

entered the U.S. through Krupp Hoesch Steel Products, Inc. (“KHSP”); thereafter, it entered through

ThyssenKrupp Nirosta North America, Inc. (“TKNA”), a newly formed subsidiary into which the

KHSP’s sales functions were consolidated.3 See CR1/PR 10 at A-9 -- A-10, A-17. Under the

antidumping statute, such transactions are valued for antidumping duty purposes at “constructed

export price” (“CEP”). See 19 U.S.C. § 1677a(b).4 CEP essentially takes the “downstream” sale

price to the first unaffiliated purchaser and adjusts it to approximate, “as closely as possible, a price

corresponding to an export price between non-affiliated exporters and importers.” Statement of

Administrative Action Accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol.

I, 103d Cong. 2d Sess, at 823 (1994) (“SAA”), reprinted in 1994 U.S.C.C.A.N. 4040, 4163. The

objective of such deductions is to make comparable comparisons, at the same level of trade, to

3
In a separate segment of the proceeding, Commerce examined the respondent’s corporate
reorganization and determined inter alia ThyssenKrupp Nirosta GmbH to be the successor-in-
interest of Krupp Thyssen Nirosta, GmbH (“KTN”) and TKNA to be the successor-in-interest of
Krupp Thyssen Nirosta North America, Inc. (“KTNA”). See Stainless Steel Sheet and Strip in Coils
from Germany: Final Results of Changed Circumstances Antidumping Duty Administrative Review,
67 Fed. Reg. 61319 (September 30, 2002). In the interest of clarity, KTN as well as ThyssenKrupp
VDM GmbH are included in references to “ThyssenKrupp” as the context may require.
4
See also 19 U.S.C. §§ 1675(a)(2)(A), 1677(35)(A).
Court No. 03-00102 Page 4

“normal value.” See Micron Technology, Inc. v. United States, 243 F.3d 1301, 1304 (Fed. Cir.

2001).

Among the expenses to be deducted are indirect selling expenses (ISEs), i.e.,

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.

SAA at 824, 1994 U.S.C.C.A.N. at 4164. According to Commerce, deductible ISEs must be

“associated with commercial activities in the United States that relate to the sale to an unaffiliated

purchaser,” and where the expense was borne or when it was paid is irrelevant that consideration.

19 C.F.R. § 351.402(b). The Court of Appeals for the Federal Circuit has held that to be deductible

an ISE must “aris[e] specifically out of the sale of the subject merchandise in the United States to

an unaffiliated purchaser, as opposed to those general expenses incurred by the foreign producer or

exporter in all sales, without regard to the identity or location of the purchaser.” Micron, 243 F.3d

at 1309 (quoting SAA at 824, 1994 U.S.C.C.A.N. at 4164).

AK Steel’s claim concerns ISEs that ThyssenKrupp reported as relating to the CEP

transactions with TKNA. ThyssenKrupp reported these in field DINDIRSU of its database and

explained in its narrative that TKNA (and KHSP) had incurred ISEs in Germany that related to

“sales to the U.S. market” which were paid or borne by ThyssenKrupp. The ISEs included technical

services, marketing, sales support, and transportation support. CR 2/PR 12 at C-39.5 AK Steel

5
The allocation of the “expenses associated with these activities are reported in Field
DINDIRSU[; s]eparate rates were calculated for non-precision band sales to the U.S. via KHSP and
KTNA and precision band sales to the U.S. via” ThyssenKrupp’s Canadian affiliated reseller. PR
(continued...)
Court No. 03-00102 Page 5

argues that ThyssenKrupp “acknowledged” that these activities were “directly related” to the

downstream sales, that the selling functions and expenses were “low” or “minimally” related to the

CEP transactions, that ThyssenKrupp “incurs all U.S. transportation expenses,” that the staffs of

Krupp Thyssen Nirosta Export (an affiliated German exporter) and TKNA “always” serve as points

of contact for U.S. sales negotiations, and that ThyssenKrupp’s staff members “occasionally”

participated in U.S. sales visits and discussions with U.S. customers. Pl’s Br. at 15 (referencing CR

1/PR 10 at Ex’s A-4-B & A-4-C; CR 7/PR 22 at C). Mainly, however, AK Steel’s position is that

the ISEs should have been deducted because they are identical in nature to ISEs that had been

deducted in the prior review. AK Steel argues that Commerce must be consistent in its application

of the law, and that there has been no significant change of circumstances justifying different

treatment in this review. Further, it argues that Commerce’s justification is based upon mere

inclusion in this administrative record of the issues and decision memorandum from the preceding

review, which does not constitute substantial evidence justifying the different decision here from that

reached in the preceding review. Pl’s Br. at 13-19.6

5
(...continued)
12/CR 2 at C-39. ThyssenKrupp also reported certain ISEs as relating to the downstream sales in
a separate Field (INDIRSU). The deduction of these ISEs in the calculation of CEP, as well as the
deduction of “upstream” ISEs involving KHSP (see infra), is uncontested.
6
In that review, covering the period January 8, 1999 through June 30, 2000, Commerce
verified the reported ISEs and deducted them in the CEP calculation because it considered that the
expenses were associated with economic activities in the United States. See Issues and Decision
Memorandum for the Administrative Review of Stainless Steel Sheet and Strip in Coils From
Germany: January 4, 1999 through June 30, 2000 (Feb. 11, 2002) (Comment 4), referenced in 67
Fed. Reg. 7668, 7670 (Feb. 20, 2002) (“99-00 Issues Memo”). See also PR 28/CR 10 at 3.
Court No. 03-00102 Page 6

ThyssenKrupp argues that it never “acknowledged” that the DINDIRSU ISEs were “directly

related” to the downstream sales. Although ThyssenKrupp staff “occasionally visited and sat in on

talks with customers,” the German exporter/producer was not involved in negotiating sales with U.S.

customers. Def-Int’s Br. at 6 (referencing PR Doc 22 at C-8). ThyssenKrupp highlights the

explanation and examples of ISEs in Commerce’s Antidumping Manual and argues that the ISEs at

issue here relate to the CEP level of sale and are not expenses associated with economic activity

occurring in the United States:

The CEP deduction is limited to the expense of economic activity occurring
in the United States. The SAA also specifies that direct selling expenses may
only be deducted to the extent they are incurred after importation (See SAA
at 153/823.) Accordingly, all U.S. direct expenses incurred in the United
States associated with the sale to the first unaffiliated U.S. customer would
be included in this deduction, as would all indirect expenses incurred in the
United States by a U.S. affiliate of the foreign exporter. Direct and indirect
expenses incurred in the foreign market on behalf of U.S. sales (e.g. lodging
expenses paid for by the respondent for U.S. customer’s technicians taking
training in the respondent’s country (direct) and salaries of salesmen in the
respondent’s country who take orders from the U.S. affiliate, and foreign
inventory carrying costs (indirect)) do not form part of the deduction . . .

As a rule of thumb, if the expense is incurred in the United States by the
affiliated importer or the exporter, it should be deducted. However, if the
expense is for a foreign activity, it should not be deducted.

Antidumping Manual at Chapter 7, Section III.C at 12 (Court’s omission).

In the Final Results, Commerce did not deduct from CEP the ISEs charged by ThyssenKrupp

to TKNA because, Commerce concluded, they were associated with the CEP level of sale.

Commerce explained that the deduction of similar ISEs in the preceding review was the result of “a

unique situation” relating to the closure of KHSP during which ThyssenKrupp had “played a more

active role [in] sales to the unaffiliated U.S. customer.” See PR 47 at 14-15.
Court No. 03-00102 Page 7

At first blush, the ISEs appear to be the same kinds of activities in both administrative

reviews. Thus, AK Steel’s assertion that there is “no evidence of any change in the nature of the

expenses or the activities to which they relate[,] only the identity of KTN’s affiliated U.S. reseller,

on whose behalf these expenses were incurred, changed”7 impugns Commerce’s conclusion that

ThyssenKrupp was “more active” in sales to the unaffiliated U.S. customer(s) in the preceding

review. The Court does not opine on whether the deduction in the preceding review was proper, but

the determination at issue involves not a change of position8 but the application of agency discretion

to the deductibility of ISEs after considering the degree of producer/exporter activity to be imputed

to the downstream sales. That is, Commerce considered AK Steel’s argument on interpreting the

ISEs at issue as related to the downstream sales but came to a different conclusion regarding their

relationship to downstream sales. AK Steel’s argument shows neither detrimental reliance nor

unreasonableness in Commerce’s explanation for the different result in this review, and a different

conclusion may not be judicially superimposed because “the possibility of drawing two inconsistent

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

supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86

S.Ct. 1018, 1026 (1966) (citations omitted). Substantial evidence and law therefore support

Commerce’s determination.

7
Pl’s Repl. at 2.
8
The general proposition is that Commerce may change a previously-held position if it
explains the basis for the change and the change is in accordance with law and supported by
substantial evidence. See, e.g., Viraj Forgings, Ltd v. United States, 27 CIT __, ___, 283 F. Supp.2d
1335, 1342-43 (2003); Cultivos Miramonte S.A. v. United States, 21 CIT 1059, 1064, 980 F. Supp.
1268, 1274 (1997).
Court No. 03-00102 Page 8

II. Incomplete Product Characteristics Data

AK Steel also contests Commerce’s conclusion that ThyssenKrupp acted to the best of its

ability in responding that data for certain product characteristics could not be provided without being

unduly burdensome. ThyssenKrupp claimed it could not provide complete data for rolling process

(hot or cold), gauge, finish, width, and temper for an affiliated home market reseller, Nirosta Service

Center GmbH (“NSC”), because

a small number of German sales, primarily non-prime merchandise, were sold
as “product bundles,” comprised of miscellaneous products. For such sales,
NSC groups a large number of products together and sells the group when the
product characteristics of the sold goods [are] irrelevant to the purchaser
(e.g., sales to a stainless scrap consumer).

PR 12/CR 2 at B-7, B-8--B-11.

Commerce issued a supplemental questionnaire requesting that ThyssenKrupp either remedy

the missing product characteristics or explain in detail why it was unable to provide the requested

information. PR 19/CR 6. ThyssenKrupp submitted answers to the supplemental questionnaire on

April 26, 2002. PR 22/CR 7. In response, ThyssenKrupp explained that NSC had sold some items

in “bundles,” that the product characteristics for such merchandise bundles could only be

extrapolated from the invoices and “could vary from package to package within each invoice line-

item,” and that in order to provide the requested information, which involved a large number of

missing data observations, NSC would have to review the packing lists manually, “an exercise that

was not possible within the time period” allowed. Id. at B-3--B-4.

Commerce sent a second supplemental questionnaire again asking ThyssenKrupp for the

missing information. PR 27. ThyssenKrupp responded that it had attempted to the best of its ability
Court No. 03-00102 Page 9

to fill in the missing product characteristics but, for a small number of sales, could not supply the

necessary information:

The sales in question consist mostly of non-prime merchandise sales by
Nirosta Service Center (“NSC”) and a very small subset of prime
merchandise sales by NSC and Thyssen Schulte (“TS”). In preparing their
earlier-filed databases for submission to the Department, these companies
attempted to the best of their ability to fill in missing product characteristic
data through the means available to them. For NSC, product characteristic
data was merged from the company’s electronic packing list. For TS,
company personnel manually reviewed over 3,000 invoices to fill in missing
product characteristic data. The data that has been provided to the
Department reflects the results of these efforts.

The remaining sales with missing product characteristic data either will not
factor into the Department’s analysis or represent an inconsequential portion
of home market sales. . . . Except for a very small quantity of non-prime
resales of returned merchandise, the U.S. importers sold only prime
merchandise in the U.S. market. Therefore, . . . non-prime home market sales
without product characteristics will not factor into the Department’s analysis.
The remaining . . . prime merchandise sales without certain product
characteristics [is insignificant in terms of] the total home market prime
merchandise sales quantity, which we respectfully submit is inconsequential
to the Department’s analysis.

PR 30/CR 12 at S2-1--S2-2.

In the preliminary determination, Commerce applied partial adverse facts available because

ThyssenKrupp “had the opportunity to suggest reporting the missing characteristics in an alternative

form, yet it failed to do so.” 67 Fed. Reg. at 51203, PR 34. Commerce noted that the preceding

administrative review involved a “similar situation” in which ThyssenKrupp did not initially report

complete data for rolling process (hot or cold), gauge, finish, width, and temper for a number of

home market sales but was able to remedy the missing characteristics either by calculating the

average finish, gauge, and width from its packing list data or, eventually, by reporting the actual
Court No. 03-00102 Page 10

transaction-specific information. Id. (citations omitted). Commerce considered ThyssenKrupp “a

sophisticated company with experience in the procedures of an antidumping investigation and

administrative review” and therefore deemed it appropriate, preliminarily, to apply partial adverse

facts available.9 Id. See 19 U.S.C. § 1677m(c).

By the final results, however, after considering the parties’ case and rebuttal briefs Commerce

decided to apply neutral facts available. PR 47. Similar to the situation of the preceding review,

ThyssenKrupp suggested using average verified values as substitutes for the missing finish, gauge,

width, temper, and hot/cold rolled data. Although ThyssenKrupp did not provide the calculations

for its suggested alternative data, Commerce noted that it had, however, provided a computer

program which would make such calculations. Commerce thus decided that the omission did not

warrant an adverse inference and that ThyssenKrupp had acted to the best of its ability because it

provided “the most precise data available from its accounting system” by “merging its product

characteristics with NSC’s electronic packing list[.]” Further, substituting average values for the

missing finish, gauge, width, hot/cold rolled, and temper data “is consistent with the methodology

utilized in the first review of this case.” Id.

AK Steel relies on Nippon Steel Corp. v. United States, 337 F. 3d 1373 (Fed. Cir. 2003), to

argue that Commerce incorrectly interpreted 19 U.S.C. § 1677e(b) in reaching its determination not

to draw an adverse inference with respect to the missing data. Pl’s Br. at 22. The appellate panel

9
As partial adverse facts available, Commerce matched home market NSC sales missing
product characteristics “to the lowest-priced product of the same grade sold in the United States by
assigning the home market transaction the corresponding U.S. control number.” 67 Fed. Reg. at
51204, PR 34. For any home market sales of grades not sold in the United States which had missing
characteristics, the Department assigned to the product “the home market control number of the
highest-priced product of the same grade in the home market.” Id.
Court No. 03-00102 Page 11

in Nippon Steel stated that an importer or respondent must “keep and maintain full and complete

records documenting the information that a reasonable importer should anticipate being called upon

to produce[,]” 337 F.3d at 1382, and AK Steel stresses the panel’s express statement that inadequate

recordkeeping is not condoned. Thus, AK Steel argues that the heart of the inquiry here is whether

substantial record evidence supports a determination that ThyssenKrupp, an experienced,

resourceful, and sophisticated respondent, did the maximum it could do to provide all requested

information, particularly since it knew what information would be requested, having been called

upon to produce it in the previous review. AK Steel contends that Commerce’s determination to

permit ThyssenKrupp to report incomplete data, when the record shows that ThyssenKrupp was not

“unable” to report all required product characteristics, is inconsistent with Nippon Steel’s instruction

that a respondent put forth maximum effort in complying with Commerce’s requests for information.

Pl’s Br. at 22.

The government and ThyssenKrupp respond that application of neutral facts available is

supported by substantial evidence and is otherwise in accordance with law. They argue that

Commerce correctly determined that ThyssenKrupp had acted to the best of its ability by providing

alternatives and explanation for the missing product characteristics, and that the determination is

reasonable since it reflects the approach followed in the preceding review. Def’s Br. at 22; Def-Int’s

Br. at 27-28.

Nippon Steel was decided after Commerce reached its determination, but it stands for the

proposition that section 1677e(b) does not inject a mens rea consideration into Commerce’s

discretion on whether to apply an adverse or neutral inference to a given set of facts. Although the
Court No. 03-00102 Page 12

term “may” in section 1677e(b) is clearly permissive, not mandatory, the Court of Appeals for the

Federal Circuit admonished that

[a]n adverse inference may not be drawn merely from a failure to respond,
but only under circumstances in which it is reasonable for Commerce to
expect that more forthcoming responses should have been made[,] i.e., under
circumstances in which it is reasonable to conclude that less than full
cooperation has been shown. While intentional conduct, such as deliberate
concealment or inaccurate reporting, surely evinces a failure to cooperate, the
statue does not contain an intent element. “Inadequate inquiries” may suffice.
The statutory trigger for Commerce’s consideration of an adverse inference
is simply a failure to cooperate to the best of respondent’s ability, regardless
of motivation or intent.

337 F.3d at 1383.

In other words, the agency’s discretion may be influenced, but it is not precluded, by a

respondent’s inadvertence or unintentional mistake. Conversely, “a respondent satisfies the statutory

mandate to act to the best of its ability when the respondent does ‘the maximum it is able to do’ in

meeting Commerce's requests for information.” China Steel Corp. v. United States, 28 CIT ___,

___, 306 F.Supp.2d 1291, 1303-04 (2004) (quoting id. at 1382). “[T]he purpose of section 1677e(b)

is to provide respondents with an incentive to cooperate, not to impose punitive, aberrational, or

uncorroborated margins.” F.Lli De Cecco Di Filippo Fara S. Martino S.p. A. v. United States, 216

F.3d 1027, 1032 (Fed. Cir. 2000). See, e.g,, American Silicon Technologies v. United States, 24 CIT

612, 626-27, 110 F.Supp.2d 992, 1003-04 (CIT 2000) (remand appropriate where Commerce

applied adverse inference without determining whether respondent had the ability to respond).

AK Steel apparently interprets Nippon Steel to require Commerce to prove that an importer

cooperated to the best of its ability every time that the agency decides not to apply adverse facts
Court No. 03-00102 Page 13

available.10 This runs counter to the discretion afforded to Commerce by section 1677e(b) in the

application of adverse facts available. The Court concludes that Commerce’s determination on this

matter is consistent with Nippon Steel, and there is substantial evidence on the record from which

to infer that ThyssenKrupp acted to the best of its ability in attempting to comply with requests for

information.

As described above, in both its November 6, 2001, and its April 29, 2002 submissions

ThyssenKrupp explained that it could not provide product characteristics for a small number of its

affiliate NSC’s home market sales because those sales were “non-prime merchandise” sold in

“bundles” to customers such as scrap metal companies for whom product characteristics were

unimportant and whose invoices did not list the product characteristics Commerce desired. PR

12/CR 2 at B-7--B-11; PR 22/CR 7 at B-3--B-4. ThyssenKrupp’s first supplemental response

explained that it had not been possible within the time provided for it or NSC to manually go through

all the packing lists and obtain the missing information. PR 22/CR 7 at B-3--B-4. ThyssenKrupp’s

second supplemental response explained that it had attempted to comply with Commerce’s request

by merging data from NSC’s electronic packing list, and personnel had manually reviewed over

3,000 invoices of another company in order to track down some of the missing product characteristic

data, and ThyssenKrupp respectfully submitted that the prime merchandise sales which remained

without complete product characteristics data represented a de minimis percentage of the total home

market prime merchandise sales quantity which ought to be considered “inconsequential” for

purposes of Commerce’s analysis. PR 30/CR 12 at S2-1--S2-2. Following the preliminary

10
See Pl. Br. at 23.
Court No. 03-00102 Page 14

determination, ThyssenKrupp reiterated its position and provided alternatives to remedy the

deficiency. PR 39/CR 18 at CB-18 (“most of the sales are non-prime and would not match to U.S.

prime merchandise sales that account for [nearly all of the] sales of the subject merchandise” and the

prime NSC sales account for a de minimis percentage of total home market sales).

In the Final Results, Commerce determined that ThyssenKrupp had retained reasonable

records and acknowledged that ThyssenKrupp had “extend[ed] its attempt to remedy the [missing]

physical characteristics[.]” Commerce noted that although ThyssenKrupp had not calculated

averages for the Preliminary Results, it “fully explain[ed] the circumstances wherein product

characteristics were missing, and provide[d] a computer program to attribute average product

characteristics to those sales in which product characteristics were missing.” PR 47 at 19. See PR

30/ CR 12 at Exhibits 1-5; PR 39/CR 18 (attachments to case brief providing alternative

methodologies to fill the gap in product information). Since Commerce had previously accepted an

alternative source of information for NSC’s missing characteristics in the prior review, it was

reasonable for Commerce to infer that ThyssenKrupp could reasonably expect that similar missing

information in this period of review would not be an obstacle to the application of neutral, rather

than adverse, facts available. See PR 47 at 19. Commerce’s conclusion that ThyssenKrupp

cooperated to the best of its ability is reasonable, not an abuse of discretion, and supported by

substantial evidence. The Court may not substitute a different view of the matter.11 See Consolo,

supra, 383 U.S. at 620.

11
The government also points out that it appears to be inconsistent for AK Steel to argue for
"administrative regularity" regarding the deduction of indirect selling expenses while asserting,
essentially, “that Commerce must change course and apply adverse facts” despite the application of
neutral facts under similar circumstances in the prior period of review. See Def’s Br. at 22-23.
Court No. 03-00102 Page 15

Conclusion

For the foregoing reasons, judgment will enter for the defendant.

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

Dated: August 25, 2004
New York, New York