.
       For their part, the Defendant-Intervenors, American Cast Iron Pipe Company, et al. (the

“Domestic Producers”), maintain that (1) BMB is not entitled to any post-sale price adjustment,

(2) Commerce should have applied an adverse inference based upon facts otherwise available

(“AFA”) in view of BMB’s alleged noncooperation with Commerce, and (3) record evidence does

not support BMB’s penalty calculation because the Client was not aware of the guaranty

arrangement at the time of sale. See Def.-Intervenors’ Cmts. on Remand Determination, ECF No.

93 at 6–16 (Apr. 8, 2020) (“Dom. Prod. Br.”). 6 The Domestic Producers contend that the court’s




6
 The court has already concluded that Commerce’s determinations to grant BMB a post-sale price
adjustment and not to apply AFA are supported by substantial evidence and not contrary to law.
See Borusan, 
426 F. Supp. 3d 
at 1404 n.7. On remand, the Domestic Producers do not point to
any additional evidence in the record to demonstrate that these determinations were improper. Nor
Consol. Court No. 19-00056                                                                  Page 8
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description of the penalty documents in Borusan was incomplete. Dom. Prod. Br. at 6. In their

view, a party is entitled to a post-sale price adjustment only if “the terms and conditions of the

adjustment were established and known to the customer at the time of sale.”
 Id. at 6–7 
(emphasis

added). They say that Appendix L to the Sales Contract is merely a summary of BMB’s guaranty

arrangement with the Consortium, so that the Client was unaware of the Consortium Members’

“agreement to mutually reimburse one another for penalties incurred by the [C]onsortium as a

whole [[                               ]].”
 Id. at 10. 
Additionally, the Domestic Producers claim

that substantial evidence does not support BMB’s methodology for calculating its claimed post-

sale price adjustment.
 Id. at 14–16. 
Finally, they contend that even if BMB is entitled to a post-

sale price adjustment and even if Commerce’s calculation methodology is permissible, substantial

evidence supports only an amount equal to “one-third of the total penalty amount called for under

the original contract terms.”
 Id. at 13. 
The Domestic Producers are incorrect on each score.

       First, the Final Modification factors are “non-exhaustive,” and “Commerce weighs [them]

singly or in combination.” China Steel Corp. v. United States, 
393 F. Supp. 3d 1322
, 1347 (CIT

2019) (citing Final Modification, 81 Fed. Reg. at 15,644–45). The knowledge factor tests

“[w]hether the terms and conditions of the adjustment were established and/or known to the

customer at the time of sale, and whether this can be demonstrated through documentation.” Final

Modification, 81 Fed. Reg. at 15,644–45 (emphasis added). Commerce has at times required

“proof that buyers were aware of the conditions to be fulfilled and the approximate amount of the

rebates at the time of sale.” China 
Steel, 393 F. Supp. 3d at 1347 
(internal quotation and citation

omitted). Each of these requirements is met here. Appendix L to the Sales Contract and the 2014




did they do so before Commerce. See Remand Results at 7. Accordingly, the court rejects these
arguments at the outset.
Consol. Court No. 19-00056                                                                    Page 9
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Consortium Agreement are identical, and each provides that BMB may indemnify the other

Consortium Members for any liabilities that accrue to the Client under the Sales Contract.

Compare Sales Contract, App’x L, at 183–84 with 2014 Consortium Agreement at 47–48. Further,

as the Domestic Producers acknowledge, the Sales Contract sets the per diem late delivery penalty

rate to a figure certain. See Dom. Prod. Br. at 12 (citing Sales Contract at 103–04, ¶ 8.2.1). The

Sales Contract also establishes the per diem late delivery penalty rates. See Sales Contract at 105,

¶ 9.1. Accordingly, the Client necessarily knew, at a time of sale predating the period of

investigation, of BMB’s guaranty arrangement with the Consortium, the general terms and

conditions of that arrangement, and the approximate sum for which BMB could be liable to the

Client on behalf of the Consortium pursuant to the Sales Contract. Likewise, the terms and

conditions of the guaranty necessarily were “established” at the time of sale, even if the Client did

not receive a copy of the contract whereby all of the duties of the Members of the Consortium to

each other were set forth. 7

       Given the guaranty arrangement, it would not be important to the Client which party would

ultimately bear the loss. They were all on the hook for any penalties owed to it. What should be

important is that the principles and terms of the allocation were contractually set between the

Consortium Members prior to the investigation at issue. Although the court does not substitute its

own view of the record, Commerce “‘must reasonably tie the determination’” to the facts upon

which it is relying. Vicentin S.A.I.C. v. United States, 
404 F. Supp. 3d 1323
, 1334 (CIT 2019)




7
  No party, including the Domestic Producers, asked the court to reconsider its remand opinion on
this point or to amend its remand instructions prior to completion of the remand. It is simply too
late to raise this point. If the factual discrepancy described supra note 1 were material, the court
even now would reconsider broadening the remand instructions, but it is not. All relevant terms
were established and the obligation for the penalty was clearly part of the Sales Contract with the
Client, as Commerce so found.
Consol. Court No. 19-00056                                                                   Page 10
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(quoting CS Wind Viet. Co., Ltd. v. United States, 
832 F.3d 1367
, 1376 (Fed. Cir. 2016)). The

record evidence shows that each Consortium Member was responsible for its own late deliveries

relating to its sales. See Documentation from BMB’s Second Suppl. Sections A-C Questionnaire,

C.R. 280-288, P.R. 190, Ex. B-32 (July 6, 2018), ECF No. 100 at 201–22, 243–56 (May 5, 2020)

(“Late Penalty Settlement Documents”). No Member’s responsibility was set at one-third of the

total penalty amount. See id.; see also 2018 Consortium Protocol. A primary concern with post-

sale price adjustments is the “potential to manipulate the dumping margins.” See Final

Modification, 81 Fed. Reg. at 15,645. Neither Commerce nor the Defendant-Intervenors point to

any evidence of suspected or actual manipulation, and the court finds none in the record. The

Client had full knowledge of the penalty obligations of the full Consortium; the Client’s knowledge

at the time of sale of the precise allocation method among the Consortium Members is immaterial

to the instant case. It is as incorrect to credit BMB with one-third of the post-sale price adjustment

as it would be to credit it with the entire penalty amount that it did not ultimately pay.

       Second, the Domestic Producers contend that Commerce’s calculation methodology is

incorrect because the total “penalty amount simply does not reflect the contract terms in place at

the time of sale.” Dom. Prod. Br. at 12. Conceding that the Sales Contract establishes [[

                                                  ]] the Domestic Producers insist that Commerce

should have calculated the Consortium’s per diem delay penalty rate pursuant to the penalty clause

in the Sales Contract. See
 id. at 11–12. 
Although Commerce verified the final penalty amount

that the Consortium actually paid to the Client, the Domestic Producers appear to argue that

Commerce should determine whether the final penalty amount accords with the Sales Contract,

irrespective of the verified amount actually paid. See
 id. at 12–13. 
In their view, the total late

delivery penalty amount pursuant to the Sales Contract is simply [[                  ]] the product of
Consol. Court No. 19-00056                                                                  Page 11
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the number of delay days for each unit and the price of each unit.
 Id. at 12. 
This argument lacks

merit. The adjustment pursuant to the text of the Sales Contract is a percentage of [[

                                                                               ]] per diem, where [[




                 ]]. Sales Contract, at 71 ¶ 1.2, 104 ¶ 8.2.1. Commerce “independently verified,”

and the record supports, that BMB’s payment of [[                  ]] was pursuant to an obligation

specified by these provisions of the Sales Contract. See Borusan, 
426 F. Supp. 3d 
at 1409.

       Where Commerce operates within the bounds of the statute, reasonably interprets its own

regulations, and makes decisions based upon substantial evidence, it “is afforded great latitude in

the choice of methodology to be employed in antidumping investigations.” Timken Co. v. United

States, 
930 F. Supp. 621
, 630 (CIT 1996) (internal quotation and citations omitted). There does

not appear to be a real challenge to methodology. Rather, the question is one of substantial

evidence supporting the adjustment. When making post-sale price adjustments to normal value

based on price, the question is whether the claimed adjustment is “reasonably attributable to the

subject merchandise or the foreign like product.”        19 C.F.R. § 351.401(c).       In this case,

Commerce’s determination that BMB’s claimed amount is “reasonably attributable” to the foreign

like product and that the penalty results from and bears a direct relationship to a home-market sale

is thus supported by substantial evidence. Accordingly, the court sustains Commerce’s decision

to use verified information in the record to ascertain the sum of the claimed post-sale price

adjustment pursuant to a contract that predates the period of investigation.
Consol. Court No. 19-00056                                                                 Page 12
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       Third, because substantial evidence supports Commerce’s determination that BMB is

entitled to the full amount that it claims, the Domestic Producers’ final argument as to whether

substantial evidence supports equal allocation among the Consortium Members necessarily fails.

See Dom. Prod. Br. at 13. In sum, substantial evidence supports Commerce’s determination that

BMB is entitled to a post-sale price adjustment in the amount of [[             ]], because this is

the sum for which BMB was liable to the Consortium Members vis-à-vis the Consortium’s joint

liability to the Client. See 2018 Consortium Protocol, at 284, ¶ 3.2 (amount of BMB’s liability to

Consortium pursuant to the Settlement Agreement); see also Late Penalty Settlement Documents,

at 201–22, 245–56 (amount of Consortium’s liability to Client). 8 Accordingly, because neither

the Domestic Producers nor the government cite any record evidence to show that BMB

manipulated or otherwise allocated the penalty amount improperly, Commerce’s remand

determination granting the full amount of BMB’s post-sale price adjustment is sustained.

       II.)    U.S. Date of Sale & PMS Adjustment to Costs of Production Determinations

       BMB contends that Commerce’s failure to address the remaining issues on remand renders

the Remand Results contrary to the court’s order in Borusan, and thus constitutes a waiver of

BMB’s challenge to those issues, and so it seeks judgment as a matter of law on the respective

counts in its complaint. See Pl.’s Cmts. on the U.S. Dep’t of Commerce’s Mar. 9, 2020 Final

Redetermination Pursuant to Ct. Remand, ECF No. 88 at 2–5 (Mar. 26, 2020) (“BMB Br.”). The

government replies that Commerce’s decision not to expend resources “to reach the additional




8
  The record also contains invoices and documentation of bank transfers. See Documentation from
BMB’s Second Suppl. Section A-C Questionnaire, C.R. 280-288, P.R. 190, Ex. B-32 (July 6,
2018), ECF No. 100 at 328–38 (May 5, 2020). The bank transfers show that in July 2018, BMB
remitted a total sum of [[              ]] to the Client. See
 id. at 333–38.
Consol. Court No. 19-00056                                                                 Page 13
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issues that would have no effect” on the outcome was reasonable under these circumstances, and

should be sustained. Gov. Reply 8–9.

       By Commerce’s determination that a properly-calculated post-sale price adjustment

renders BMB’s estimated weighted-average dumping margin de minimis, BMB has secured the

maximum possible relief to which it may be entitled under 19 U.S.C. § 1516a – namely, pursuant

to 19 U.S.C. § 1673d(a)(4), its merchandise “will be excluded from the underlying antidumping

duty order.” Remand Results at 11. Thus, the correctness of Commerce’s determinations as to

BMB’s U.S. date of sale and its costs of production no longer present a live dispute between BMB

and the government. See Pro-Team Coil Nail Enter., v. United States, 
419 F. Supp. 3d 1319
, 1340

(CIT 2019) (citing Camreta v. Greene, 
563 U.S. 692
, 717 (2011)). Because the Domestic

Producers do not challenge Commerce’s failure to reconsider either of these issues on remand,

there is no actual controversy between the three parties on these two issues at this stage of the

proceedings. See Gerdau Ameristeel Corp. v. United States, 
519 F.3d 1336
, 1340 (Fed. Cir. 2008)

(quoting Hall v. Beals, 
396 U.S. 45
, 48 (1969)) (further judicial inquiry into non-live issues risks

rendering impermissible “‘advisory opinions on abstract propositions of law.’”). Commerce was

instructed to reexamine the whole record to determine whether substantial evidence supports the

Final Determination, and Commerce did so reasonably. The court’s objective is not to impose

needless expenses or to waste an agency’s time. See Roses Inc. v. United States, 
774 F. Supp.

1376
, 1380–81 (CIT 1991). Commerce was not incorrect in assuming the court did not require

useless acts. Accordingly, Commerce’s Remand Results are sustained in full.

       III.)   “All-Others Rate” Determination

       Commerce also has determined that because BMB’s revised estimated weighted-average

dumping margin is de minimis, the all-others rate has changed. See Remand Results at 11. The
Consol. Court No. 19-00056                                                                  Page 14
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Domestic Producers contend that because the all-others rate is not at issue and was not subject to

the court’s remand order, Commerce’s adjustment of that rate was improper. See Dom. Prod. Br.

at 16. BMB does not challenge Commerce’s adjustment to the all-others rate. Pursuant to 19

U.S.C. § 1673d(c)(5)(A), Commerce may set the all-others rate when a “mandatory respondent[’s]

rate[] change[s] in the course of judicial review, even when the plaintiff does not raise a challenge

to the all-others rate in its complaint or during remand proceedings.” U.S. Steel Corp. v. United

States, 
348 F. Supp. 3d 1248
, 1254 (CIT 2018). Accordingly, Commerce’s adjustment to the all-

others rate during remand proceedings was not contrary to law and will be sustained.

                                         CONCLUSION

       For the foregoing reasons, the Remand Results are SUSTAINED. Judgment will issue

accordingly.

                                                                            /s/ Jane A. Restani
                                                                         Jane A. Restani, Judge


Dated: May 22, 2020
       New York, New York