[Granting in part and denying in part Plaintiffs' Motions for Judgment on the Agency Record, and remanding in part to Department of Commerce]

OPINION

POGUE, Judge.

This consolidated action challenges four determinations made by the United States Department of Commerce ("Commerce" or the "Department") in the final results of the third administrative review of an antidumping ("AD") duty order on frozen warmwater shrimp from Thailand. Two of the four challenges come from Plaintiff Ad Hoc Shrimp Trade Action Committee ("AHSTAC"), and two come from the two mandatory respondents selected by the Department for individual examination in this review, the "Rubicon Group" and "Pakfood" (collectively

the "Respondent Plaintiffs").

Plaintiff AHSTAC contests: (I) the Department's exclusive reliance on "type 3" entry data obtained from United States Customs and Border Protection ("CBP entry data") in selecting respondents for individual examination in this review; and (II) Commerce's determination — underlying the agency's grant of a constructed export price ("CEP") offset to Rubicon's normal value ("NV") — that the level of trade ("LOT") of Rubicon's CEP sales was less advanced than the LOT of its NV sales. The Respondent Plaintiffs in turn contest: (III) Commerce's refusal to accept Pakfood's contractual exchange rate data after the expiration of the Department's party-initiated submission deadline; and (IV) the Department's refusal to offset interest earned on long-term deposits, used to secure access to lines of credit, against the costs of production and constructed value of two of Rubicon's affiliates.

The court has jurisdiction over this matter pursuant to Section 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2) (2006) and 28 U.S.C. § 1581(c).

As explained more fully below, the court concludes that (I) because the Department, without adequate explanation, treated this case materially differently from similarly situated proceedings, Commerce's exclusive reliance on CBP entry data in selecting the mandatory respondents for this review was arbitrary and not in accordance with law; (II) Commerce did not arbitrarily deviate from precedent in determining, on the record of this review, that the LOT of Rubicon's CEP sales was less advanced than the LOT of its NV sales, and the agency's LOT determination was supported by substantial evidence on the record of this review; (III) because Pakfood failed to exhaust its administrative remedies with respect to the issue of its contractual exchange rates, Pakfood failed to preserve this issue for review; and (IV) Commerce acted in accordance with its established practice in denying an interest offset to Rubicon for interest earned on long-term deposits, and the Department's determination to deny the offset was supported by substantial evidence.

Accordingly, the court remands to Commerce solely on the issue of the agency's methodology for selecting mandatory respondents in this review, and Plaintiffs' requests for judgment on the agency record with regard to the remaining three challenges at issue here are each denied.

STANDARD OF REVIEW

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938); Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319, 1323 (Fed. Cir. 2010) (same).

A determination, finding, or conclusion is not in accordance with law if, inter alia, it is arbitrary. See SKF USA Inc. v. United States, 263 F.3d 1369, 1378, 1382 (Fed. Cir. 2001) (reviewing a challenge brought under 19 U.S.C. § 1516a(a)(2) and holding Commerce's determination to be not in accordance with law under 19 U.S.C. 1516a(b)(1)(B)(i) because "it is well-established that an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently" (quotation and alteration marks and citation omitted)); Nat'l Fisheries Inst. v. United States, ___ CIT ___, 637 F. Supp. 2d 1270, 1282 (2009) (noting the court's holding that Commerce's decision was "arbitrary . . . and therefore contrary to law").

DISCUSSION

I. Commerce's Use of CBP Entry Data to Select Mandatory Respondents in this Review

A. Background

In its Notice of Initiation for the instant administrative review, the Department announced that it would be exercising its discretion under 19 U.S.C. § 1677f-1(c)(2) to limit the number of respondents selected for individual investigation. See Notice of Initiation, 73 Fed. Reg. at 18,765. Relying solely on CBP entry data, the Department identified Pakfood and Rubicon as the two largest producers/exporters of the subject merchandise, and accordingly selected these entities as mandatory respondents in this review. See id.; Certain Frozen Warmwater Shrimp from Thailand, 74 Fed. Reg. 10,000, 10,001 (Dep't Commerce Mar. 9, 2009) ("Prelim. Results") (unchanged in final results, see Final Results, 74 Fed. Reg. at 47,553); I D Mem. Cmt. 2.

AHSTAC argues, inter alia, that Commerce's exclusive reliance on CBP entry data in selecting the mandatory respondents for this review was contrary to law because it is both inconsistent with prior practice (i.e. arbitrary and capricious) and an abuse of discretion. (See Mem. of Law in Supp. of Pl. [AHSTAC]'s Rule 56.2 Mot. for J. on Agency R. ("AHSTAC's Br.") 13.) In response, Commerce contends that it reasonably relied on CBP entry data in selecting the largest exporters/producers for individual examination, and that such reliance is not arbitrary or capricious because, "although [the Department] has relied upon [data from] quantity and value ["Q V"] questionnaires in certain proceedings, . . . Commerce's `current practice is to select respondents using CBP [entry] data.'" (Def.'s Opp'n to Pls.' Mots. for J. Upon Admin. R. ("Def.'s Br.") 8 (quoting I D Mem. Cmt. 2 at 9-10).)

B. Commerce's Exclusive Reliance on CBP Entry Data to Select Mandatory Respondents in this Review Was Arbitrary and Therefore Not in Accordance with Law.

Contrary to the Department's claims, Commerce does not employ a consistent practice, supported with adequate reasoning, for selecting mandatory respondents based on import volume, pursuant to 19 U.S.C. § 1677f-1(c)(2). While the Department has used CBP entry data to select mandatory respondents in some administrative reviews initiated prior to the review under consideration here, the Department has also continued the

practice of selecting mandatory respondents on the basis of Q V questionnaires. Without explanation, Commerce continues to use Q V questionnaires in some administrative proceedings — including reviews, such as the review under consideration in this case, of AD duty orders with at least two prior completed reviews — and to use CBP entry data in others.

As AHSTAC correctly points out (AHSTAC's Br. 10), because CBP entry data do not contain information with respect to company affiliations, where the Department relies exclusively on such data, it is forced to use affiliation-related information obtained in the course of prior proceedings. Such affiliation-related data may or may not remain accurate with regard the POR at issue. Unlike cases in which Commerce issues and verifies Q V questionnaires, when the Department uses CBP entry data to select mandatory respondents, disclosure of accurate affiliation information for the relevant POR becomes discretionary for the

producers/exporters. To the extent that producers/exporters see benefit in correcting outdated information, they may do so; to the extent, however, that the producers/exporters do not view correction of outdated information as beneficial, the burden to discover and correct any inaccuracies now falls on petitioners who, unlike the producers/exporters, are not likely to be in possession of the relevant information. As a result, the domestic producers of some merchandise bear the burden of analyzing and correcting potentially outdated affiliation information (when CBP entry data are used) in administrative reviews of AD duty orders imposed on their foreign counterparts, whereas the domestic producers of other merchandise bear no similar burden (when Q V questionnaires are issued and verified).

As mentioned above, where an agency is afforded a measure of discretion in administering a statute, the exercise of that discretion is not in accordance with law if it is arbitrary, such as where the agency treats like cases differently. See, e.g.,Martin v. Franklin Capital Corp., 546 U.S. 132, 139 (2005) ("Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike." (citation omitted)); SKF, 263 F.3d at 1382 ("[I]t is well-established that an agency action is arbitrary when the agency offers insufficient reasons for treating similar situations differently." (quotation and alteration marks and citation omitted)).

By using CBP entry data in some reviews and Q V questionnaires in others, Commerce is, without explanation, placing a higher burden on producers of some merchandise than on producers of other merchandise. Regardless of the reasonableness of using CBP entry data to select mandatory respondents, therefore, the Department's apparently arbitrary and inconsistent employment of this methodology is not, without more adequate explanation, consistent with basic principles of the rule of law. See, e.g., Green Country Mobilephone, Inc. v. FCC, 765 F.2d 235, 237 (D.C. Cir. 1985) ("We reverse the [agency] not because the strict rule it applied is inherently invalid, but rather because the [agency] has invoked the rule inconsistently. We find the

[agency] has not treated similar cases similarly."); Nakornthai Strip Mill Pub. Co. v. United States, ___ CIT ___, 587 F. Supp. 2d 1303, 1307 (2008) ("Agencies have a responsibility to administer their statutorily accorded powers fairly and rationally, which includes not treating similar situations in dissimilar ways." (quotation and alteration marks and citation omitted)).

The court accordingly concludes that a remand is necessary on the issue of the Department's methodology for selecting mandatory respondents in this review. On remand, Commerce must either provide an adequately reasoned explanation distinguishing the present case from apparently similar cases in which the Department has employed and continues to employ a materially different methodology, or else apply a methodology consistent with those similarly situated cases. The chosen methodology must comport with a reasonable interpretation of the AD statute.

II. Commerce's Grant of a CEP Offset to the Rubicon Group

A. Background

An AD duty is based upon the difference between the NV, i.e., the price charged for the subject merchandise in its home or third country comparison market, and the "export price" ("EP"), i.e., the price charged for such merchandise in the United States, or, where, as here, a foreign producer sells to an affiliated purchaser in the United States, the CEP. Micron Tech., Inc. v. United States, 243 F.3d 1301, 1303 (Fed. Cir. 2001).

To ensure a fair comparison of the NV to the appropriate U.S. price, Commerce is required to establish the NV "to the extent practicable, at the same [LOT] as the [EP] or [CEP]." 19 U.S.C. § 1677b(a)(1)(B)(i). While the phrase "same [LOT]" is left undefined by both the statute and the Statement of Administrative Action ("SAA"), the Department's regulations provide that "sales are made at different [LOTs] if they are made at different marketing stages (or their equivalent)." 19 C.F.R. § 351.412(c)(2).

In determining whether sales are made at different LOTs in the U.S. and comparison markets, the Department "analyze[s] [the exporter/producer's] selling functions to determine if [LOTs] identified by a party are meaningful[;] [i]n situations where some differences in selling activities are associated with different sales, whether that difference amounts to a difference in the [LOTs] [is] evaluated in the context of the seller's whole scheme of marketing." Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,371 (Dep't Commerce May 19, 1997) (final rule). "Each more remote [LOT] must be characterized by an additional layer of selling activities, amounting in the aggregate to a substantially different selling function." Id. Accord Micron, 243 F.3d at 1314 (same). See also SAA at 829 (characterizing "difference in the [LOT]" as "a difference between the actual functions performed by the sellers at the different [LOTs] in the two markets," and noting that "Commerce will require evidence from the foreign producers that the functions performed by the sellers at the same [LOT] in the U.S. and foreign markets are similar, and that different selling activities are actually performed at the allegedly different [LOTs]").

If the Department determines that a respondent's NV and CEP sales were at different LOTs, and if "the difference in [LOT] . . . is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different [LOTs] in the country in which [NV] is determined," 19 U.S.C. § 1677b(a)(7)(A)(ii), the Department is required to make an LOT adjustment to NV. Id. However, where the record does not contain data sufficient to make an LOT adjustment, and where the NV is established at an LOT that is more remote from the factory than that of the CEP, the Department may grant a capped CEP offset to NV pursuant to 19 U.S.C. § 1677b(a)(7)(B).

The grant of a CEP offset reduces the respondent's NV by the lesser of the indirect selling expenses ("ISEs") incurred on sales of the foreign like product in the country in which NV is determined or the expenses incurred on U.S. sales by the U.S. affiliate which are deducted from the CEP under 19 U.S.C. § 1677a(d)(1)(D). See 19 U.S.C. § 1677b(a)(7)(B); Micron, 243 F.3d at 1305 ("The effect [of a CEP offset] is to reduce the price of the more advanced [LOT] by `indirect selling expenses' that have been included in the price on the apparent theory that such costs would not have been incurred if the sale had been made on a less advanced [LOT]. However, the `CEP offset' may not exceed `the amount of such expenses for which a deduction is made under section 1677a(d)(1)(D).'" (quoting 19 U.S.C. § 1677b(a)(7)(B)).

In this case, "[i]n order to determine whether the comparison-market sales and CEP sales were made at different marketing stages, [Commerce] compared the various selling activities performed by [Rubicon] for sales to unaffiliated customers in Canada to the selling activities performed for [Rubicon]'s sales to [its] U.S. affiliate, Rubicon Resources." I D Mem. Cmt. 8 at 27. "In contrast to the many selling activities performed by the [Rubicon Group] for sales to Canada, [the Department] confirmed at verification the limited selling functions that the [Rubicon Group] perform[ed] for sales to Rubicon Resources." Id. (citing Mem. to File, Verification of the Sales Responses of [CFF] and Rubicon Resources LLC [] in the [AD] Review of Certain Frozen Warmwater Shrimp from Thailand, A-549-822, ARP 07-08 (May 8, 2009), Admin. R. Pub. Doc. 252).

Specifically:

In comparing the Canadian LOT to the CEP LOT, [Commerce] found that the selling activities performed by the Thai packers for CEP sales were significantly fewer than the selling activities that were performed for the Canadian sales. The Thai packers provided the following selling functions: sales forecasting; market research; sales promotion; advertising; trade shows; inventory maintenance; order input/processing; freight and delivery arrangements; visits, calls and correspondence to customers; development of new packaging and new markets (with customer); packing; and after-sales services for Canadian sales. The only selling functions that the Thai packers provided for CEP sales were inventory maintenance, order input/processing, freight and delivery arrangements, and packing. Therefore, the Thai packers provided many more selling functions for Canadian sales than they provided for CEP sales, thus making the Canadian LOT more advanced than the CEP LOT.

Having found the LOT of Rubicon's third country market NV comparison sales to be more advanced than the LOT of Rubicon's CEP sales in the U.S., "because the data available did not form an appropriate basis for making a [LOT] adjustment but the Canadian LOT was at a more advanced stage of distribution than the CEP LOT, [Commerce] made a CEP offset to NV in accordance with [ 19 U.S.C. § 1677b(7)(B)]." I D Mem. Cmt. 8 at 21.

AHSTAC contests the Department's finding that the Canadian LOT was at a more advanced stage of distribution than the CEP LOT (AHSTAC's Br. 14-20), see also I D Mem. Cmt. 8 at 22, arguing that the Department's grant of a CEP offset to Rubicon's NV in this review was both contrary to established practice and unsupported by substantial evidence on the record of the third review. B. Commerce Did Not Act Contrary to Precedent In Granting a CEP Offset to Rubicon's NV in This Review.

AHSTAC first argues that, "[a]lthough Commerce makes determinations in a review based on the record developed in that proceeding, the agency has an established practice of giving weight to previous determinations made in prior proceedings regarding whether a CEP offset is appropriate," and that the Department should have therefore given more weight to its determinations in the LTFV investigation underlying this AD order, as well as the second administrative review of this order, where Commerce declined to grant Rubicon a CEP offset. (AHSTAC's Br. 16-17.)

In response, the Department asserts that "Commerce makes determinations based upon the record of the relevant segment of the proceeding, not previous segments, and [that] the record of this review supports Commerce's determination." (Def.'s Br. 12;see also id. at 13 (noting that "the Court has rejected explicitly the contention that denial of a [CEP] offset in an early segment of the proceeding, even if the facts were identical, should control Commerce's decision in a subsequent review" (citing Alloy Piping Prods., Inc. v. United States, No. 08-00027, 2009 WL 983078, at *6 (CIT 2009) ("Even assuming Commerce's determinations at issue are factually identical, as a matter of law a prior administrative determination is not legally binding on other reviews before this court. Thus, the court is not persuaded by Plaintiffs' suggestion to follow the analysis in [a prior review] given that Commerce has demonstrated with substantial evidence, and in accordance with law, that a CEP offset is proper under the facts of the present case." (citingTimken U.S. Corp. v. United States, 434 F.3d 1345, 1352 (Fed. Cir. 2006)))).)

While it is true that "[a]n agency is obligated to follow precedent," M.M. P. Mar Advancement, Training, Educ. Safety Program v. Dep't Commerce, 729 F.2d 748, 755 (Fed. Cir. 1984), "Commerce [nevertheless] has `discretion to . . . adapt its views and practices to the particular circumstances of the case at hand, so long as the agency's decisions are explained and supported by substantial evidence on the record.'" Nakornthai, ___ CIT at ___, 587 F. Supp. 2d at 1307 (quoting Trs. in Bankr. of N. Am. Rubber Thread Co. v. United States, ___ CIT ___, 533 F. Supp. 2d 1290, 1297 (2007)). Accord Alloy Piping, 2009 WL 983078, at *6.

In this case, the Department determined that, unlike the evidence presented to the agency in the LTFV investigation and the second review, "[t]he verified record evidence supports Rubicon's [CEP] offset." (Def.'s Br. 10.) See I D Mem. Cmt. 8 at 29 ("[B]ased on the facts on the record of the current review, . . . we find it appropriate to [] grant a CEP offset to the Rubicon Group. . . ."). The question before the court is thus whether this determination was adequately explained and supported by substantial evidence on the record. See Nakornthai, ___ CIT at ___, 587 F. Supp. 2d at 1307-08; Alloy Piping, 2009 WL 983078, at *6.

AHSTAC essentially argues that Commerce has failed to adequately distinguish the record evidence of the third review from that of the second review and LTFV investigation, and that the agency must accordingly follow its past precedent in those prior segments. (See AHSTAC's Br. 17-18.) The court disagrees.

In the LTFV investigation underlying this AD duty order, the Department explained that, to show entitlement to a CEP offset, "[a] respondent must first demonstrate that substantial differences in selling functions exist between the third country [NV] and CEP [LOTs]." Issues Decision Mem., A-549-822, Investigation (Dec. 23, 2004), available at http://ia.ita.doc.gov/frn/summary/thailand/04-28171-1.pdf (last visited Sept. 1, 2010) (incorporated by reference in Certain Frozen and Canned Warmwater Shrimp from Thailand, 69 Fed. Reg. 76,918, 76,919 (Dep't Commerce Dec. 23, 2004) (notice of final determination of sales at LTFV and negative final determination of critical circumstances)) ("LTFV I D Mem.") Cmt. 5 at 21. Commerce then determined, on the record of that segment, that a CEP offset for Rubicon was not warranted, because it found that Rubicon "performed essentially the same selling functions for its third country/EP transactions and for its sales to the U.S. affiliate." Id. at 20.

Similarly, in the second administrative review of the resulting AD duty order (the next time that the Rubicon Group was selected for individual examination) Commerce again "analyzed the selling functions that the Rubicon Group performed through each [channel of] distribution [] for sales to Canada, as well as the selling functions it performed to sell to its U.S. EP customers and to Rubicon Resources," 2d AR I D Mem. Cmt. 5 at 12, and determined that a CEP offset for Rubicon was not warranted on the record of that review, because the Department found that "the Rubicon Group performed essentially the same selling functions for its third country/EP transactions and for its sales to the U.S. affiliate." Id. at 15 (citation omitted). With regard to the evidence on the record before the agency in

the second review, the Department noted that, "although the Rubicon Group provided evidence of Rubicon Resources' interaction with its U.S. customers in this review, it provided very little detail concerning the activities performed by the Thai packers for sales to Rubicon Resources and no evidence of these activities." Id. at 16. Commerce accordingly concluded that, because, "based on information gathered in the LTFV investigation, at a minimum, the Thai packers regularly provide[d] sales forecasting in the form of shipment schedules to Rubicon Resources," id., and because Rubicon had "neither argued nor provided evidence that this activity was no longer performed by the Thai packers during the time period covered by this review," id., "substantial differences in selling activities" did not exist between Rubicon's Canadian sales and its sales to its U.S. affiliate. Id. (noting that "the standard articulated in the regulations [] requires the Department to find `substantial differences in selling activities' before determining that there is a difference in the stage of marketing" (quoting 19 C.F.R. § 351.412(c)(2))).

The third review, however, was different. In the third review — the subject of this action — Commerce determined that Rubicon had provided sufficient verified evidence that its selling functions with respect to sales to its U.S. affiliate were at a substantially lesser stage of marketing than its selling functions with regard to its NV sales. I D Mem. Cmt. 8 at 27. Unlike the LTFV investigation, where Rubicon reported, and Commerce verified, essentially identical sales activities with regard to its Canadian sales as with regard to its sales to its U.S. affiliate, and unlike the second administrative review, where Rubicon "provided very little detail concerning the activities performed by the Thai packers for sales to Rubicon Resources [the U.S. affiliate] and no evidence of these activities," in the third review, the Department emphasized that Rubicon reported, and Commerce verified, significantly more selling functions for its Canadian sales than for its sales to its U.S. affiliate. Accordingly, relying on the AD statute and the SAA, and explaining that the Department's LOT analysis involves a comparison of the respondent's selling functions for its various channels of distribution, the Department concluded, on the record of the third review, that "the Thai packers provided many more selling functions for Canadian sales than they provided for CEP sales, thus making the Canadian LOT more advanced than the CEP LOT."Prelim. Results, 74 Fed. Reg. at 10,005 (unchanged in Final Results, 74 Fed. Reg. 47,551); see also I D Mem. Cmt. 8 at 27.

Thus, because "Commerce's analysis includes an explanation of the standards it applied[] and the analysis that led to its conclusion, demonstrating a rational connection between the facts on the record and the conclusions drawn," Alloy Piping, 2009 WL 983078, at *5, the court concludes that Commerce's LOT analysis is supported by substantial evidence, and that the Department has sufficiently distinguished the evidentiary record of the third administrative review from that of the LTFV investigation and the second administrative review. Accordingly, the agency's conclusions from those earlier segments do not serve as precedent controlling its conclusions in the instant review. See Nakornthai, ___ CIT at ___, 587 F. Supp. 2d at 1307.

C. Commerce's Treatment of Rubicon's ISE Ratios as Part of its LOT Analysis Was Reasonable and Supported by Substantial Evidence.

AHSTAC further contends that Commerce's determination to grant a CEP offset to Rubicon in this review is both arbitrary (because contrary to established practice) and not supported by substantial evidence, because the Department should have given more weight to Rubicon's reported ISE ratios as part of its LOT analysis. (See AHSTAC's Br. 18-19.).

First, the court cannot agree with AHSTAC that the Department has an established practice of giving more weight to a respondent's ISEs as part of its LOT analysis than it did in this case.

In support of their argument in this regard, AHSTAC points to the results of an administrative review of an AD order on hot-rolled flat-rolled carbon-quality steel from Japan and the LTFV investigation underlying the AD order now at issue. (AHSTAC's Br. 19.) In analyzing the LOTs involved in Steel from Japan, the Department "examined the selling functions" of the respondent, and noted that "[a] qualitative evaluation of the similarities and differences in selling functions suggest[ed] that the differences may be substantial." Issues Decision Mem., A-588-846, ARP 99-00 (Jan. 17, 2002), available at http://ia.ita.doc.gov/frn/summary/japan/02-1268-1.txt (last visited Sept. 1, 2010) (incorporated by reference inHot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan, 67 Fed. Reg. 2,408, 2,409 (Dep't Commerce Jan. 17, 2002) (final results of AD duty administrative review)) ("Steel from Japan I D Mem.") Cmt. 1 at 6. "As a rule of thumb check on the alleged differences in selling functions, and subsequent to the Preliminary Results, [Commerce] calculated the weighted-average [ISEs], by channel of distribution, to help determine the extent of selling activities performed for sales through each channel."Id. (emphasis added). " [B]ased on [its] qualitative analysis of selling functions and the differences in selling expenses, [Commerce] [found] that the differences in [the respondent's] selling activities were, collectively, `substantial.'" Id. (emphasis added).

In the LTFV investigation underlying this AD duty order, as noted above, the Department "examined the selling activities performed [by Rubicon] for each channel [of distribution]," LTFV Prelim. Results, 69 Fed. Reg. at 47,106, and, "[a]fter analyzing the selling functions performed for each sales channel, [found] that the distinctions in selling functions [were] not material." Id. Based on this analysis, the Department concluded that Rubicon's sales to its U.S. affiliate were at the same LOT as its sales to its Canadian customers. Id. In addition, having found Rubicon's claim that it performed additional and/or higher intensity selling activities for sales to Canada than for those to its U.S. affiliate to have been unsubstantiated by the record evidence, the Department also "note[d] that the Rubicon Group has reported a higher level of [ISEs] for sales made to Rubicon Resources," LTFV Prelim. Results, 69 Fed. Reg. at 47,106, claiming this fact as additional support for the agency's conclusion that the U.S. LOT for Rubicon's CEP sales was not less advanced than the LOT of its Canadian sales. Id. Nevertheless, the Department emphasized that its decision was based primarily on its analysis of Rubicon's selling functions with respect to sales to Canada and its U.S. affiliate, and that Rubicon's reported ISE ratios simply added support to Commerce's LOT analysis. LTFV I D Mem. Cmt. 5 at 23.

Contrary to AHSTAC's contentions, therefore, the court finds no basis in either Steel from Japan or the LTFV investigation underlying this AD order to suggest that the Department's practice with regard to its LOT analysis is anything other than, as the agency explained in the instant review, to "focus on [the respondent's] selling activities." I D Mem. Cmt. 8 at 27.Accord Alloy Piping, 2009 WL 983078, at * 5 ("[T]he focus of the LOT adjustment analysis, which may ultimately lead to a CEP offset, is on selling activities and not on expenses as the Plaintiffs suggest." (footnote omitted, emphasis in original) (citing 19 U.S.C. § 1677b(a)(7)(A)(i); 19 C.F.R. § 351.412(c)(2); SAA at 829; Antidumping Duties; Countervailing Duties, 62 Fed. Reg. at 27,371))). Although the agency has in the past used a respondent's ISE ratios to corroborate its analysis of selling functions, Steel from Japan I D Mem. Cmt. 1 at 6; LTFV Prelim. Results, 69 Fed. Reg. at 47,106, there are numerous subsequent instances where the Department has not considered a respondent's selling expenses as part of its LOT analysis at all, and AHSTAC has not pointed the court to, and the court is not aware of, any precedent where, rather than corroborating the Department's conclusions with regard to a respondent's selling functions, the respondent's expenses have been used to reverse those conclusions. (See generally AHSTAC's Br.)

Accordingly, the court concludes that Commerce did not act contrary to its established practice by not giving more weight to Rubicon's ISE ratios as part of its LOT analysis in this review.

Second, to the extent that AHSTAC's argument is that the agency's finding with regard to Rubicon's LOTs is unsupported by substantial evidence because the Department should in any case have given more weight to Rubicon's expense ratios, it is not for this Court to re-weigh the evidence or substitute its own judgment for that of the agency. E.g., Chia Far Indus. Factory Co. v. United States, 28 CIT 1336, 1362, 343 F. Supp. 2d 1344, 1369 (2004). As the Department explained, the evidence submitted by Rubicon and verified by Commerce in this review with regard to Rubicon's selling functions in both the U.S. and Canadian markets was, unlike the evidence submitted in the LTFV investigation and the second review, sufficient for the agency to determine that Rubicon's Canadian sales were at an LOT that was more remote from the factory than the LOT of its sales to its U.S. affiliate. I D Mem. Cmt. 8 at 27. Accordingly, the court concludes that Commerce's determination in this regard was supported by substantial evidence on the record of the third review. The Department's conclusion that more weight should not have been given to Rubicon's ISE ratios as part of Commerce's LOT analysis is reasonable in light of the record as a whole, and is neither contrary to the statute, see 19 U.S.C. § 1677b(a)(7)(A)(i), nor to previous opinions from this Court. See, e.g., Arcelormittal, 2008 WL 2223071, at *11.

The court therefore concludes that Commerce's determination that Rubicon's sales to its U.S. affiliate were at a lesser LOT than its sales in the third country comparison market was supported by substantial evidence on the record as a whole and was not contrary to law.

III. Commerce's Rejection of Pakfood's Forward Contract Exchange Rate Data

A. Background

After the publication of the Preliminary Results for this review and after the expiration of the regulatory deadline for party-initiated factual submissions, Pakfood, on March 13,

2009, and for the first time in this proceeding, requested permission to submit to Commerce its U.S. sales data reflecting the exchange rates in its forward contracts. Letter from Trade Pacific PLLC, A-549-822, ARP 07-08 (Mar. 13, 2009), Admin. R. Pub. Doc. 226 ("First Request to Supp."). Although the statute and Department's regulations explicitly provide that if "a currency transaction on forward markets is directly linked to an export sale under consideration, [Commerce will use] the exchange rate specified . . . to convert the foreign currency," 19 U.S.C. § 1677b-1(a); 19 C.F.R. § 351.415(b), Pakfood argued that, because the department had not previously requested data on contractual exchange rates, "the need to provide this information thus was not previously evident." First Request to Supp. at 2.

Commerce denied Pakfood's request, Letter to Trade Pacific PLLC, A-549-822, ARP 07-08 (Mar. 16, 2009), Admin. R. Pub. Doc. 228, ("First Denial of Request to Supp."), explaining that:

[t]o properly consider this new information in its margin calculations, the Department would require significant additional time to analyze the data, request clarification or supplemental information . . ., and allow for comments. . . . Given that [Pakfood's] request was made at a late stage . . . the Department would not be able to properly analyze the data within the statutory timeframe. . . .

Following this exchange of letters, and in response to Commerce's Preliminary Results, which did not incorporate the exchange rates from Pakfood's forward contracts, see Prelim. Results, 74 Fed. Reg. at 10,007, Pakfood submitted a case brief that did not address the contractual exchange rates issue. See generally Letter from Trade Pacific PLLC, A-549-822, ARP 07-08 (May 29, 2009), Admin. R. Pub. Doc. 261. As Pakfood did not address this issue in its case brief, Commerce did not comment on the issue in either the Final Results or the Issues and Decision Memorandum. See generally Final Results, 74 Fed. Reg. 47,551; I D Mem. B. Pakfood Failed to Exhaust its Administrative Remedies and Therefore Failed to Preserve This Issue for Judicial Review.

Commerce argues that Pakfood failed to exhaust its administrative remedies regarding its exchange rate claim and that Pakfood is therefore precluded from bringing this claim before the court. (Def.'s Br. 15-18.) Pakfood responds that its failure to exhaust its administrative remedies should be excused both because pressing its argument in its case brief at the administrative level would have been futile and because Commerce fully considered the exchange rate issue in this segment. (See Resp'ts' Joint Reply Br. ("Resp't Pls.' Reply") 1-4.)

The court agrees with the Department that Pakfood's failure to exhaust its administrative remedies on this issue precludes the issue's review at this time. "[A]bsent a strong contrary reason, the court should insist that parties exhaust their remedies before the pertinent administrative agencies." Corus Staal BV v. United States 502 F.3d 1370, 1379 (Fed. Cir. 2007).

Generally, the "prescribed remedy" for a party in disagreement with Commerce's Preliminary Results is to file a case brief, Ta Chen Stainless Steel Pipe, Ltd. v. United States, 28 CIT 627, ___, 342 F. Supp. 2d 1191, 1205 (2004), and that "case brief must present all arguments that continue in the submitter's view to be relevant to [Commerce]'s final determination or final results. . . ." 19 C.F.R. § 351.309(c)(2) (emphasis added).

Thus, in general, under the Department's regulations, requiring the inclusion within the case brief of all issues which remain in controversy is "appropriate" in actions challenging the results of AD duty order administrative reviews. See 28 U.S.C. § 2637(d) ("[T]he Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies."). See also Ad Hoc Shrimp Trade Action Comm. v. United States, ___ CIT ___, 675 F. Supp. 2d 1287, 1300 (2009) ("It is `appropriate' for litigants challenging [AD] actions to have exhausted their administrative remedies by including all arguments in their case briefs submitted to Commerce." (quoting 28 U.S.C. § 2637(d))); id. (noting that, even where a party has previously raised an issue with the agency, usually "[t]he failure to include an argument in a case brief is a failure to exhaust administrative remedies with respect to that argument because it deprives Commerce of an opportunity to consider the matter, make its ruling, and state the reasons for its action" (internal quotation and alteration marks and citation omitted)).

In this case, Pakfood does not contest that it omitted its request that Commerce use contractual exchange rates from its case brief. (Mem. of Points Auth. in Supp. of Mot. by [the Resp't Pls.] for J. Upon the Agency R. ("Resp't Pls.' Br.") 13 n. 6.) Nor does Pakfood contest that this omission constitutes a failure to exhaust its administrative remedies. (Id. ("Pakfood did not present this argument in its case brief before the agency, and therefore did not exhaust its administrative remedies." (citing 28 U.S.C. § 2637(d); 19 C.F.R. § 351.309(c)(2))).)

It is true that a party's failure to exhaust its administrative remedies should not preclude judicial review of its claims where the benefits of exhaustion are inapplicable or outweighed by other concerns, Timken Co. v. United States, 10 CIT 86, 93, 630 F. Supp. 1327, 1334 (1986) (quoting Hormel v. Helvering, 312 U.S. 552, 558 (1941) ("[The exhaustion doctrine] should not be applied where the obvious result would be a plain miscarriage of justice.")). Moreover, this Court has recognized

certain exceptions to the requirement. For example, Pakfood correctly notes that the court has waived the exhaustion requirement where it would have been futile for the party to raise its argument at the administrative level, as well as where the record indicates that — either as a result of other parties' arguments or the agency's decision-making process — the agency in fact thoroughly considered the issue in question. (See Resp't Pls.' Reply 2.) See, e.g., Asociacion Colombiana de Exportadores de Flores v. United States, 916 F.2d 1571, 1575 (Fed. Cir. 1990) (allowing waiver of exhaustion requirement on basis of futility);Valley Fresh Seafood, Inc. v. United States, No. 06-00132, 2007 WL 4380137, at *5 (CIT Dec. 17, 2007) (waiver of exhaustion requirement on ground that agency fully considered the issue) (citing Holmes Prods. Corp. v. United States, 16 CIT 1101, 1104 (1992)).

As the court will explain, however, neither of these exceptions is applicable here. 1. The Futility Exception to the Exhaustion

Requirement is Not Applicable Here.

Pakfood argues that it would have been futile to press its exchange rate issue in its case brief because Commerce had dismissed the issue at an earlier stage, explaining that to do so would have caused delays. (Resp't Pls.' Br. 13 n. 6.) But the mere fact that Commerce rejected an argument at an earlier stage of an administrative proceeding does not, without more, suffice to render a party's continued adherence to such argument an exercise in futility. See PPG Indus., 14 CIT at 543, 746 F. Supp. at 137 ("[T]hat a party to an administrative proceeding finds an argument may lack merit, or had failed to prevail in a prior proceeding based on different facts, does not, without more, rise to the level of futility. . . ."). Even where it is likely that Commerce would have rejected a party's arguments without changing course, "it would still [be] preferable, for purposes of administrative regularity and judicial efficiency, for [the party] to make its arguments in its case brief and for Commerce to give its full and final administrative response in the final results." Corus Staal, 502 F.3d at 1380. By including arguments in its case brief, even arguments Commerce has repeatedly dismissed, a party ensures the full development of a factual record that facilitates judicial review. See, e.g., Carpenter Tech., 30 CIT at 1375-76, 452 F. Supp. 2d at 1346-47.

In this case, Pakfood's communications with Commerce do not justify Pakfood's conclusion that pressing its exchange rate issue in its case brief would have been futile. Commerce did not demonstrate a complete unwillingness to reconsider its use of market exchange rates, and no statute or regulation obligated Commerce to refuse Pakfood's requests. To the contrary, both the statute and Commerce's regulations indicated that the Department favored the use of timely-established contractual exchange rates.See 19 U.S.C. § 1677b-1(a); 19 C.F.R. § 351.415(b). Had Pakfood pressed this issue in its case brief, Commerce would have been put on notice that Pakfood still considered the issue relevant and would have had an opportunity to fully consider and explain its exchange rate choices. In these circumstances, requiring exhaustion of Pakfood's administrative remedies is not "inequitable and an insistence of a useless formality." Luoyang Bearing, 26 CIT at 1186 n. 26, 240 F. Supp. 2d at 1297 n. 26 (internal quotation marks and citation omitted).

Accordingly, in this case, because Pakfood's omission of the exchange rate claim from its case brief denied Commerce the opportunity to fully consider the issue, thus failing to establish an adequate record for judicial review, the court concludes that the exhaustion requirement should not here be waived for futility.

2. The Issue Was Not Fully Considered by Commerce.

Pakfood also argues that the court should waive the exhaustion requirement because Commerce actually considered Pakfood's exchange rate issue in the administrative proceeding. (Resp't Pls.' Reply 2 ("Commerce fully considered whether to allow Pakfood to provide its forward contract exchange rate information, and determined not once, but twice that it would not accept the proffered data.").) However, the sole fact that "objections were previously communicated to Commerce does not circumvent the exhaustion requirement." Ad Hoc Shrimp, ___ CIT ___, 675 F. Supp. 2d at 1301. Accordingly, "[r]aising an issue . . . in advance of case brief submission does not dispense with the requirement for case brief inclusion." Id. (citing Carpenter Tech. Corp. v. United States, 30 CIT 1595, 1597-98, 464 F. Supp. 2d 1347, 1349 (2006)).

Pakfood's exchange rate claim is not discussed in the Final Results or in the accompanying Issues and Decision memorandum.See generally Final Results, 74 Fed. Reg. 47,551; I D Mem. Compare Valley Fresh, 2007 WL 4380137, at *5 (excusing plaintiff's failure to raise argument in case brief before Commerce where the issue had been given clear consideration in the final results of the administrative review). Because it is reasonable for the Department to have assumed that Pakfood's failure to raise this issue in its case brief meant that Pakfood's objections had been satisfied and that no further resources needed to be devoted to the issue, see Mittal Steel, 548 F.3d at 1384, and because there is in fact no indication in the Final Results and/or the Issues and Decision Memorandum that the agency did indeed fully consider the issue, the court cannot conclude that Pakfood's failure to argue this point in its case brief should be excused on the basis that Commerce nevertheless had full and adequate opportunity to consider the objection in the first instance.

Moreover, although the court may define new exceptions to its exhaustion requirement where no previously established exception applies, Luoyang Bearing, 26 CIT at 1186 n. 26, 240 F. Supp. 2d at 1297 n. 26, the court declines to do so here. Pakfood has provided no compelling explanation for its failure to exhaust its administrative remedies. It learned of Commerce's exchange rate decision from the Preliminary Results, twice requested alternative treatment, twice received clear negative responses from Commerce, and submitted a case brief that did not address the issue. Where a party is aware of an issue that continues to be relevant to the final results and simply decides not to pursue it based on prior interactions with Commerce, "[w]hatever prejudice that may inure to [that party] from this scenario [is] brought on by [the party's] own acts," PPG Indus., 14 CIT at 543, 746 F. Supp. at 137, and therefore does not counsel in favor of waiving any otherwise generally-applicable requirements.

IV. Commerce's Denial of Interest Income Offset to Rubicon

A. Background

In response to Commerce's initial questionnaire, the Rubicon Group proposed to offset the financial expenses of two of its affiliates — CSF and PTN — with interest income from certain deposits CSF and PTN placed in financial institutions. While Rubicon classified these twelve-month term deposits as non-current assets, it noted that the deposits were "maintained by the respective financial institutions as guarantees on [the affiliates'] revolving line[s] of credit," Rubicon's Resp. to Supp. Sec. D Quest. 15, and were "required by [the afiliates'] banks to secure their respective lines of credit." Id. at 16. Rubicon explained that the lines of credit were "necessary for the general day-to-day operations of the compan[ies]," id., and that the supporting funds were "not deposited for investing purposes." Id. at 15. Rubicon argued that, because Commerce had established a "policy of offsetting interest expenses with income associated with the general operations of the company and not related to investing activities," id., the interest income from these deposits should be offset against its affiliates' financial expenses. Id. at 15-16.

The Department confirmed Rubicon's explanation that these deposits were required as a condition for obtaining credit, but did not offset CSF and PTNs' financial expenses with interest from the twelve-month deposits. I D Mem. Cmt. 7 at 20 (noting that "it is the Department's practice to allow a respondent to offset financial expenses with short-term interest income generated from a company's current assets and working capital accounts"). Commerce explained that, as the deposits "were appropriately classified as non-current assets in the Rubicon Group companies' financial statements," id., the Department "[did] not consider these compensating balances to be liquid working capital reserves which would be readily available for the companies to meet their daily cash requirements. . . ." Id.

Rubicon argues that Commerce acted unlawfully in rejecting the request to offset CSF and PTN's financial expenses with the interest income earned on these deposits. Rubicon contends that Commerce has established a practice of offsetting all interest income demonstrably related to the general operations of a respondent, even if the interest income derives from a long-term asset, and argues that the Department acted arbitrarily by failing to follow this practice in this case. (Resp't Pls.' Br. 17 (arguing that it is Commerce's practice to allow offsets on interest income from long-term assets "if there is a showing that the interest income is related to the general operations of the firm"(internal quotation marks omitted) (quoting Hyundai Elec. Indus. Co. v. United States, 28 CIT 517, 539, 342 F. Supp. 2d 1141, 1161 (2004))); Rubicon's Resp. to Supp. Sec. D Quest. 15 (arguing that an offset in this case would be consistent with Commerce's "policy of offsetting interest expenses with income associated with the general operations of the company and not related to investing activities").

The Department denies Rubicon's characterization of its practice, and argues that its practice is to offset financial expenses solely with short-term interest income from a company's current assets and working capital accounts. (Def.'s Br. 24-25 (arguing that Commerce looks to "`the underlying interest-bearing asset that generated the income'" and grants an offset only where the asset is a current operating expense (quoting Issues Decision Mem., A-331-802, ARP 06-07 (July 3, 2008), available at http://ia.ita.doc.gov/frn/summary/ECUADOR/E8-15830-1.pdf (last visited Sept. 1, 2010) (incorporated by reference inCertain Frozen Warmwater Shrimp from Ecuador, 73 Fed. Reg. 39,945, 39,946 (Dep't Commerce July 11, 2008) (final results and partial rescission of AD duty administrative review)) ("Shrimp from Ecuador I D Mem.") Cmt. 3 at 7)).) See also I D Mem. Cmt. 7 at 20 ("[I]t is the Department's practice to allow a respondent to offset financial expenses with short-term interest income generated from a company's current assets and working capital accounts." (citing Chlorinated Isocyanurates from Spain, 70 Fed. Reg. 24,506 (Dep't Commerce May 10, 2005) (notice of final determination of sales at LTFV) and accompanying Issues Decision Mem. Cmt. 10 ("Isocyanurates from Spain I D Mem."); Certain Frozen Warmwater Shrimp from Brazil, 73 Fed. Reg. 39,940 (Dep't Commerce July 11, 2008) (final results and partial rescission of AD duty administrative review))).

B. Rubicon Has Not Established that Commerce Followed a Contrary Practice in Similar Circumstances, and the Department's Disallowance of Rubicon's Long-Term Interest Income Offset Was Supported by Substantial Evidence.

First, regardless of the nature of Commerce's practice with respect to the grant or denial of interest income offsets in the past, at the time of the instant review, Commerce had clearly

established a practice of allowing income expense offsets solely for short-term income from current assets and working capital accounts. As early as 2005, and as late as just eight months prior to the publication of its Preliminary Results in this review, for example, Commerce reiterated that its practice with regard to the grant or denial of interest income offsets is "to examine the underlying interest-bearing asset that generated the income to determine whether or not the interest income is considered short-term, as opposed to examining liabilities that may or may not be associated with the interest income earned due to the fungible nature of money." Shrimp from Ecuador I D Mem. Cmt. 3 at 7 (explaining that Commerce will "offset (i.e., reduce) financial expenses with short-term interest income earned from a respondent's short term interest-bearing assets," but will not offset "the interest income earned by [the respondent] [that] is the result of a long-term receivable" (citations omitted)).See also Issues Decision Mem., A-351-838, ARP 06-07 (July 3, 2008), available at http://ia.ita.doc.gov/frn/summary/BRAZIL/E8-15827-1.pdf (last visited Sept. 1, 2010) (incorporated by reference in Frozen Warmwater Shrimp from Brazil, 73 Fed. Reg. at 39,944) ("Shrimp from Brazil I D Mem.") Cmt. 9 at 17 (citing practice of permitting offsets for "financial expenses with short-term interest income earned from its working capital accounts" and allowing offsets "for only the income that . . . related to short-term" assets).

Moreover, Commerce's stated explanation for its practice — the necessity of maintaining working capital to meet companies' daily cash requirements — is inconsistent with offsets for long-term accounts that cannot serve daily cash needs.

Accordingly, Commerce has shown that, under its established methodology, the first crucial question in calculating an offset is whether or not the interest income is short-term — i.e. derived from current assets or working capital accounts. The "burden of proof to substantiate and document [the nature of the accounts] is on the respondent making a claim for [an] offset,"Shrimp from Brazil I D Mem. Cmt. 9 at 17 (citations omitted), and Commerce will not allow an offset where a respondent cannot demonstrate that the interest income in question is short-term in nature. Id.

In this case, the Department found that Rubicon failed to demonstrate that the interest income at issue was short-term in nature, and the agency accordingly concluded that an interest income offset was therefore not warranted. I D Mem. Cmt. 7 at 20 (explaining that "the interest income at issue is related to certain long-term interest-bearing accounts, which were appropriately classified as non-current assets in the Rubicon Group companies' financial statements"). Because the Department's decision with regard to the Rubicon Group's interest income is consistent with Commerce's prior decisions restricting offsets to short-term income, as well as with the agency's explanations that, because current assets and working capital accounts are necessary to meet a company's daily cash requirements, the Department will grant offsets only where the income in question derives from such assets, the court concludes that Rubicon has failed to establish that Commerce "consistently followed a contrary practice in similar circumstances." Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed. Cir. 2005) (internal quotation marks and citation omitted).

Further, Commerce had "such relevant evidence as a reasonable mind might accept as adequate to support [the] conclusion [that Rubicon failed to establish the short-term nature of the assets at issue]," Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (internal quotation marks and citation omitted); Micron, 117 F.3d at 1393, and could "rationally draw support for [its] finding [that the assets in question were long-term in nature] from the relevant record evidence [indicating that the accounts were non-current assets]." Penrod Drilling Co. v. Johnson, 905 F.2d 84, 87 (5th Cir. 1990). Accordingly, the court concludes that Commerce's findings regarding Rubicon's claimed interest offset were supported by substantial evidence.

CONCLUSION

For all of the foregoing reasons, this matter is remanded to the agency, for further consideration in accordance with this opinion, solely on the issue of the methodology used to select mandatory respondents in this review. Commerce shall have until November 1, 2010 to complete and file its remand redetermination. Plaintiffs shall have until November 22, 2010 to file comments. Defendant and Defendant-Intervenors shall have until December 6, 2010 to file any reply.

It is SO ORDERED.