Full opinion text
OPINION TSOUCALAS, Senior Judge. Plaintiffs and defendant-intervenors, NSK Ltd. and NSK Corporation (collectively “NSK”), Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (collectively “Koyo”), NTN Bearing Corporation of America, NTN Corporation, American NTN Bearing Manufacturing Corporation, NTN Driveshaft, Inc. and NTN-Bower Corporation (collectively “NTN”), and plaintiffs, Nippon Pillow Block Sales Co. Ltd. and FYH Bearing Units USA Inc. (collectively “NPB”), move pursuant to USCIT R. 56.2 for judgment upon the agency record challenging various aspects of the United States Department of Commerce, International Trade Administration’s (“Commerce”) final determination, entitled Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Singapore, and the United Kingdom; Final Results of Antidumping Duty Administrative Reviews (“Final Results”), 62 Fed.Reg. 2081 (Jan. 15, 1997), as amended, Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, and Singapore; Amended Final Results of Antidumping Duty Administrative Reviews, 62 Fed.Reg. 14,391 (Mar. 26, 1997). Defendant-intervenor and plaintiff, The Torrington Company (“Tor-rington”), also moves pursuant to USCIT R. 56.2 for judgment upon the agency record challenging certain aspects of Commerce’s Final Results. Specifically, NSK argues that Commerce erred in: (1) calculating constructed value (“CV”) profit; (2) its application of level-of-trade (“LOT”) adjustments to normal value (“NV”); (3) including its zero-value United States transactions in the margin calculations; (4) failing to include inventory carrying costs in the constructed export price (“CEP”) offset when it matches CEP sales to CV; and (5) failing to find that NSK successfully rebutted the presumption of affiliation between itself and its supplier. Koyo contends that Commerce erred in: (1) failing to grant an LOT adjustment; and (2) failing to exclude sales made out of the ordinary course of trade from the home-market database. Koyo subsequently abandoned its claim regarding Commerce’s failure to grant an LOT adjustment. NTN contends that Commerce erred in: (1) failing to exclude sales made out of the ordinary course of trade from the home-market database; (2) making certain adjustments to the starting price of CEP and denying a price-based LOT adjustment for CEP sales; (3) recalculating United States indirect selling expenses without regard to LOT; (4) determining CEP without regard to LOT; and (5) refusing to use NTN’s affiliated-party sales in its calculation of NV. NPB contends that Commerce erred in: (1) finding that NPB failed to correctly indicate whether a housed bearing model was further manufactured in the United States during the period of review (“POR”); and (2) applying total facts available. Torrington contends that Commerce erred in: (1) accepting Koyo’s home-market billing adjustments; (2) accepting Koyo’s home-market rebates; (3) accepting NTN’s home-market billing adjustments; and (4) accepting NSK’s home-market rebates. BACKGROUND This case concerns the sixth review of the antidumping duty order on antifriction bearings (other than tapered roller bearings) and parts thereof (“AFBs”) imported to the United States from Japan during the review period of May 1, 1994 through April 30, 1995. On July 8, 1996, Commerce published the preliminary results of the subject review. See Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Thailand and the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews, Termination of Administrative Reviews, and Partial Termination of Administrative Reviews (‘Preliminary Results”), 61 Fed. Reg. 35,713. Commerce issued the Final Results on January 15, 1997, see 62 Fed. Reg. 2081, and the Amended Final Results on March 26, 1997, see 62 Fed.Reg. 14,391. Since the administrative review at issue was initiated after December 31, 1994, the applicable law is the antidumping statute as amended by the Uruguay Round Agreements Act (“URAA”), Pub.L. No. 103-465, 108 Stat. 4809 (1994) (effective January 1, 1995). See Torrington Co. v. United States, 68 F.3d 1347, 1352 (Fed.Cir.1995) (citing URAA § 291(a)(2), (b) (noting effective date of URAA amendments)). JURISDICTION The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994). STANDARD OF REVIEW The Court will uphold Commerce’s final determination in an antidumping administrative review unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994); see NTN Bearing Corp. of Am. v. United States (“NTN Bearing”), 24 CIT -, -, 104 F.Supp.2d 110, 115-16 (2000) (detailing Court’s standard of review in antidumping proceedings). DISCUSSION I. Commerce’s CV Profit Calculation for NSK A. Background For this POR, Commerce used CV as the basis for NV “when there were no usable sales of the foreign like product in the comparison market.” Preliminary Results, 61 Fed.Reg. at 35,718. Commerce calculated the profit component of CV using the statutorily preferred methodology of 19 U.S.C. § 1677b(e)(2)(A) (1994). See Final Results, 62 Fed.Reg. at 2113. Specifically, in calculating CV, the statutorily preferred method is to calculate an amount for profit based on “the actual amounts incurred and realized by the specific exporter or producer being examined in the investigation or review ... in connection with the production and sale of a foreign like product [made] in the ordinary course of trade, for consumption in the foreign country.” 19 U.S.C. § 1677b(e)(2)(A). In applying the preferred methodology for calculating CV profit, Commerce determined that “the use of aggregate data that encompasses all foreign like products under consideration for NV represents a reasonable interpretation of [§ 1677b(e)(2)(A) ] and results in a practical measure of profit that [Commerce] can apply consistently in each case.” Final Results, 62 Fed.Reg. at 2113. Also, in calculating CV profit under § 1677b(e)(2)(A), Commerce excluded below-cost sales from the calculation which it disregarded in the determination of NV pursuant to § 1677b(b)(l) (1994). See id. at 2114. B. Contentions of the Parties 1. NSK’s Contentions NSK contends that Commerce defined “foreign like product” for purposes of the CV profit calculation in a manner contrary to the statutory definition of the term and well-established agency practice. See NSK’s Mem. P. & A. Supp. Mot. J. Agency R. (“NSK’s Mem.”) at 12. In particular, NSK asserts that 19 U.S.C. § 1677b(e)(2)(A) requires that Commerce first try to calculate CV profit for imported merchandise based on actual profit amounts incurred in the home-market production and sale of “foreign like product,” that is, model or family products, that match each bearing model sold in the United States. See id. NSK notes that 19 U.S.C. § 1677(16) (1994) defines “foreign like product” by establishing three distinct categories of products for model-matching purposes. See id. at 13. The first category of merchandise is identical merchandise, the next category is nonidentical merchandise made by the same producer in the same country and is similar in value to the merchandise under investigation, and the third category is merchandise made by the same producer in the same country and used for the same purposes as the merchandise under investigation. See id. NSK asserts that once Commerce finds merchandise in one category, merchandise in the subsequent categories can never be considered foreign like product because § 1677(16) directs Commerce to determine foreign like product in the first of the listed categories. See id. at 13-14. NSK argues, therefore, that since the plain language of § 1677(16) clearly creates a descending hierarchy for selecting foreign like product, Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) dictates that the Court, as well as Commerce, must give effect to the unambiguously expressed intent of Congress and, thus, the reasonableness of Commerce’s interpretation of 19 U.S.C. § 1677b(e)(2)(A) is irrelevant. See id. at 12-13. NSK also maintains that the legislative history of the URAA confirms that Commerce should calculate CV profit on a model or family basis when using the preferred methodology under 19 U.S.C. § 1677b(e)(2)(A). See id. at 15. NSK notes that when Commerce revised its regulations to conform to the URAA, in particular 19 C.F.R. § 351.405, the agency specified it would use “ ‘an aggregate calculation that encompasses all foreign like products under consideration for normal value.’ ” Id. (quoting Antidumping Duties; Countervailing Duties; Final Rule (“Final Regulations”), 62 Fed.Reg. 27,296, 27,359 (May 19, 1997)). NSK further notes that Commerce found this method of calculating CV profit to be “ ‘consistent with the Department’s method of computing SG & A and profit under the pre-URAA version of the statute, and, while the URAA revised certain aspects of the SG & A and profit calculation, we do not believe that Congress intended to change this particular aspect of our practice.’ ” Id. Nevertheless, NSK claims that contrary to Commerce’s finding, the URAA legislative history makes clear that the current preferred methodology for calculating CV profit is not consistent with Commerce’s pre-URAA methodology. See id. The URAA legislative history, according to NSK, first recites the pre-URAA law, 19 U.S.C. § 1677b(e)(l)(B) (1988), with reference to profit amounts based on the same general class or kind as the merchandise under investigation, then announces that 19 U.S.C. § 1677b(e)(2)(A) (1994) “ ‘establishes new methods of calculating SG & A expenses and profits consistent with methods provided for in the [URAA].’” Id. at 15-16 (quoting Statement of Administrative Action (“SAA”), H.R. Doc. 103-316, at 839 (1994), reprinted in 1994 U.S.C.C.A.N. 4040) (emphasis added). NSK specifically notes that the new § 1677b(e)(2)(A) “ ‘establishes as a general rule that Commerce will base amounts of SG & A expenses and profits only on amounts incurred and realized in connection with sales in the ordinary course of trade of the particular merchandise in question (foreign like product).’ ” Id. at 16 (quoting SAA at 839) (emphasis added). NSK, therefore, argues that the URAA legislative history directly contradicts Commerce’s position and demonstrates Congress’ clear intent to alter the preferred basis on which Commerce calculates CV profit. See id. NSK further notes that after taking into account changes in nomenclature of the URAA, the first alternative methodology for CV profit, 19 U.S.C. § 1677b(e)(2)(B)(i), is nearly identical to the pre-URAA CV profit methodology, 19 U.S.C. § 1677b(e)(l)(B), except that sales at issue do not have to be in the ordinary course of trade. See id. NSK also notes that the URAA legislative history provides that “ ‘[w]ith respect to alternative (1), this methodology is consistent with the existing practice of relying on a producer’s sales of products in the same” ’ general class or kind of merchandise. Id. (quoting SAA at 840). NSK, therefore, maintains that if § 1677b(e)(l)(B) is meant to be consistent with Commerce’s pre-URAA practice, then § 1677b(e)(2)(A) is necessarily meant to be different. See id. at 17. 2. Commerce’s Contentions In response, Commerce asserts that it applied a reasonable interpretation of 19 U.S.C. § 1677b(e)(2)(A) and properly based CV profit for each respondent, including NSK, upon the actual profit data of that respondent. See Def.’s Mem. in Partial Opp’n to Pis.’ Mots. J. Agency R. (“Def.’s Mem.”) at 15-16. Although Commerce recognizes that 19 U.S.C. § 1677(16) establishes a descending hierarchy that articulates preferences for the type of foreign like product the agency must select for matching purposes, it claims that where the subject merchandise is complex and encompasses numerous characteristics for matching, the foreign like product typically embraces more that one of the § 1677(16) categories. See id. at 18. Commerce contends that the term “foreign like product” is not limited to the product which is “identical” (i.e., “model-specific”) or “like” (i.e., “similar to”) the subject merchandise, because if neither is available, merchandise of the same “general class or kind” as the subject merchandise will qualify as the foreign like product. See id. at 18-19. Commerce also claims that there is no indication by reference to “a foreign like product” in 19 U.S.C. § 1677b(e)(2)(A) that Congress intended that CV profit be calculated based on merchandise that is identical or similar to the subject merchandise. See id. at 18. Commerce also notes that CV becomes available for NV only when identical or similar home-market merchandise is not available for comparison with United States sales either because there are no such home-market sales or they are below cost and, thereby, are disregarded. See id. Commerce maintains that Congress could not have intended to limit the CV profit calculation under § 1677b(e)(2)(A) to profit incurred in the production or sale of merchandise identical or similar to the subject merchandise because, in that event, the preferred method of § 1677b(e)(2)(A) would rarely be applicable. See id. at 18-19. Commerce, therefore, argues that since there were sales of foreign like products that were not disregarded and actual profit amounts were realized by each respondent in connection with these sales, Commerce properly applied the preferred method by aggregating those profits. See id. at 20. To apply an alternative methodology where there are sales of the foreign like product, according to Commerce, would virtually eliminate the statutory preference to calculate CV profit based upon § 1677b(e)(2)(A). See id. at 21. Moreover, Commerce disagrees with NSK’s assertion that Commerce ignored the explicit hierarchy of 19 U.S.C. § 1677(16) by calculating CV profit based on profits for products from all § 1677(16) categories. See id. at 22. Citing U.H.F.C. Co. v. United States, 916 F.2d 689 (Fed. Cir.1990) (a pre-URAA case), and Toyota Motor Sales, U.S.A., Inc. v. United States, 22 CIT-, 15 F.Supp.2d 872 (1998) (a post-URAA case), Commerce argues that it is simply following its practice established under pre- and post-URAA law of applying the categories set forth under § 1677(16), which defines “such or similar” merchandise (now “foreign like product”), depending upon the particular context. See id. at 22-23. 3. Torrington’s Contentions In support of Commerce, Torrington first contends that 19 U.S.C. § 1677b(e)(2)(A) on its face permits a flexible application of “foreign like product” in CV profit calculations. See Torrington’s Resp. to Pis.’ Mems. Supp. Mots. J. Agency R. (“Torrington’s Resp.”) at 16. Tor-rington asserts that § 1677b(e)(2)(A)’s plural expression, “profits,” and flexible expression, “in connection with,” carries the clear meaning and intent that Commerce may calculate CV profit from multiple sales of relevant merchandise and by reference to more than one bearing “family,” so long as the models in the calculation are reasonably “connected” to the particular model for which CV is being determined. See id. Torrington, therefore, argues that § 1677b(e)(2)(A) does not limit Commerce to any particular narrow product group. See id. Torrington also contends that rules of statutory construction necessitate Commerce’s broad and flexible interpretation of 19 U.S.C. § 1677b(e)(2)(A). See id. at 17. Torrington first notes that § 1677b(e)(2)(A) is the general rule and preferred basis for determining CV profit. See id. Torrington also notes that in most cases, CV forms NV only when a respondent reports insufficient sales of “foreign like product,” as the term is narrowly understood, in the ordinary course of trade. See id. Accordingly, Torrington claims that if the Court construes § 1677b(e)(2)(A) narrowly in the CV profit context, it will effectively negate the general rule and preferred basis for CV profit calculations. See id. In support of its claim, Torrington asserts that: (1) “courts [must] strive to give effect to all provisions in a statute, so as not to render a provision inoperative,” id. (citing United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 99 L.Ed. 615 (1955)); and (2) courts must also “avoid giving statutes manifestly absurd interpretations which literal readings would otherwise support.” id. (citing United States v. Brown, 333 U.S. 18, 27, 68 S.Ct. 376, 92 L.Ed. 442 (1948)). Torring-ton argues if the Court were to adopt NSK’s position for calculating CV profit, the Court would clearly violate both of these rules. See id. at 17-18. Torrington further contends that the crux of NSK’s argument is that the term “foreign like product” under 19 U.S.C. § 1677(16) must be applied with rigid consistency in two different contexts, namely, those for: (1) calculating price-based NV from home-market sales of comparable merchandise, and (2) calculating CV profit. See id. at 19. Torrington disagrees with NSK, arguing first that the language of 19 U.S.C. § 1677(16) clearly provides that Commerce has discretionary authority to select among the categories of identical and similar merchandise to reach a satisfactory determination. See id. In other words, Commerce has the authority to make a satisfactory determination of what is encompassed by “foreign like product” and, therefore, it acted reasonably when it based CV profit on the sales of all foreign like products. See id. at 19-20. Torrington also asserts that Commerce reasonably concluded that “foreign like product” can differ by context, that is, depending upon whether the dumping comparison is based on: (1) price-to-price, or (2) price-to-CV. See id. at 20. First, Torrington notes that when there are adequate home-market sales made at above-cost prices of identical or similar merchandise, there is no need to determine profit, and the application of “foreign like product” turns to model-matching issues. See id. Torrington also argues, inter alia, that, contrary to NSK’s suggestion that the Court interpret the term “a foreign like product” of 19 U.S.C. § 1677b(e)(2)(A) in all contexts as referring to a singular class of identical merchandise or to a singular bearing family, the selection of the word “a” in the statute commonly means “any,” and can be “applied to more than one individual object; whereas ‘the’ is an article which particularizes the subject spoken of.” Id. at 23 (quoting Allstate Ins. Co. v. Foster, 693 F.Supp. 886, 889 (D.Nev.1988) (quoting, in turn, Black’s Law Dictionary, I, 1324 (5th ed.1979))). In addition, Tor-rington claims that judicial precedent supports construing the word “a” in a broader manner. See id. at 23-24. Consistent with the common meaning and judicial precedent, Torrington asserts that the Court should sustain Commerce’s interpretation that “a foreign like product” can mean “any” such product and all such products combined for purposes of calculating CV profit under § 1677b(e)(2)(A). See id. at 25. C. Analysis In RHP Bearings Ltd. v. United States, 23 CIT -, 83 F.Supp.2d 1322 (1999), this Court upheld Commerce’s CV profit methodology of using aggregate data of all foreign like products under consideration for NV as being consistent with the antidumping statute. See id. at -, 83 F.Supp.2d at 1336. Since Commerce’s CV profit methodology and the parties’ arguments at issue in this case are practically identical to those presented in RHP Bearings, the Court adheres to its reasoning in RHP Bearings. The Court, therefore, finds that Commerce’s CV profit methodology is in accordance with law. II. NSK’s Zero-Value United States Transactions NSK argues that in light of NSK Ltd. v. United States, 115 F.3d 965, 975 (Fed.Cir.1997), the Court should remand the matter to Commerce to exclude its zero-value transactions from their margin calculations. See NSK’s Mem. at 28. NSK maintains that United States transactions at zero value, such as samples, do not constitute true sales and, therefore, should be excluded from the margin calculations pursuant to NSK See id. The identical issue was decided by this Court in SKF USA Inc. v. United States, Slip Op. 99-56,1999 WL 486537, *7 (June 29,1999). Torrington concedes that a remand may be necessary in light of NSK, but argues that further factual inquiry by Commerce is necessary to determine whether the zero-price transactions were truly without consideration. See Torrington’s Resp. at 29. Torrington argues that only if the transactions are truly without consideration can they fall within NSK’s exclusion. See id. Commerce concedes that the case should be remanded to it to exclude the sample transactions for which NSK received no consideration from its United States sales databases. See Def.’s Mem. at 25. Commerce is required to impose anti-dumping duties upon merchandise that “is being, or is likely to be, sold in the United States at less than its fair value.” 19 U.S.C. § 1673(1) (1994). A zero-priced transaction does not qualify as a “sale” and, therefore, by definition cannot be included in Commerce’s NV calculation. See NSK, 115 F.3d at 975 (holding “that the term ‘sold’ ... requires both a transfer of ownership to an unrelated party and consideration.”). Thus, the distribution of AFBs for no consideration falls outside the purview of 19 U.S.C. § 1673. Consequently, the Court remands to Commerce to exclude any transactions that were not supported by consideration from NSK’s United States sales database and to adjust the dumping margins accordingly. III. Commerce’s Exclusion of Inventory Carrying Costs in the CEP Offset When it Matched NSK’s CEP Sales to CV In the Final Results, Commerce “regard[ed] the inventory carrying costs [NSK] incurred in the home market, which are incurred prior to the sale, transfer, or shipment of the merchandise to the U.S. affiliate, as an expense incurred on behalf of the sale to the U.S. affiliate.” 62 Fed. Reg. at 2124. Commerce did not consider this to reflect a commercial activity in the United States and, therefore, it did not deduct domestic inventory carrying costs from CEP for the Final Results. See id. NSK contends that Commerce included inventory carrying costs in the CEP offset when matching CEP sales to NV, but erroneously neglected to include such costs in the CEP offset when it matched CEP sales to CV. See NSK’s Mem. at 29. Commerce agrees with NSK. See Def.’s Mem. at 25. Torrington disagrees, contending that the “rationale for an offsetting deduction has evaporated” because Commerce no longer deducts the costs at issue from the factory to the time of sale to the United States affiliate from the United States sale. Torrington Mem. at 32. NSK responds that in calculating the CEP offset, the statute compels Commerce to reduce NV “ ‘by the amount of indirect selling expenses incurred in the country in which [NV] is determined on sales of the foreign like product,’ ” subject to the CEP offset. NSK’s Reply Mem. at 3 (quoting 19 U.S.C. § 1677b(a)(7)(B)). Since the costs at issue constitute an indirect selling expense incurred in the home market on sales of the foreign like product, NSK asks the Court to disregard Torrington’s argument as inconsistent with the statute. See id. Title 19, United States Code, § 1677b(a)(l)(B) requires Commerce to establish NV to the extent practicable, at the same LOT as the EP or CEP. When Commerce is unable to match United States sales with foreign market sales at the same LOT, an adjustment to NV should be made to account for the differences in price that result from the differences in LOT. See 19 U.S.C. § 1677b(a)(7)(A). When the data available does not provide an appropriate basis to grant an LOT adjustment under § 1677b(a)(7)(A), but NV is established at an LOT constituting a more advanced stage of distribution than the LOT of the CEP, the statute ensures a fair comparison between United States price and NV by reducing NV by what is known as the “CEP offset.” See 19 U.S.C. § 1677b(a)(7)(B) (CEP offset is an adjustment that is made to NV when NV is being compared to CEP sales in the United States). Specifically, the CEP offset adjustment is made by reducing NV “by the amount of indirect selling expenses incurred in the country in which [NV] is determined on sales of the foreign like product,” but this deduction may not exceed (i.e., it is “capped” by) the amount of the indirect selling expenses deducted in calculating CEP. Id. Since the inventory carrying costs at issue constitute an indirect selling expense incurred in the home market on the sales of the foreign like product, the Court remands to Commerce to include the imputed inventory carrying costs in the calculation of CEP offset for NSK when matching CEP sales to CV. See generally Notice of Final Determination of Sales at Less Than Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 Fed.Reg. 8909, 8915 (Feb. 23, 1998) (Commerce included inventory carrying costs in the CEP offset for CEP sales matched to price-based NVs and CV). IV. NSK’s Affiliation With Its Supplier; Exhaustion of Administrative Remedies NSK does not dispute that 19 U.S.C. § 1677(33) establishes a rebuttable presumption that NSK controls a supplier by virtue of the fact that NSK owns at least five percent of the supplier’s equity. See NSK’s Mem. at 33. NSK argues that it has rebutted the statutory presumption by placing facts on the record showing that “NSK is not legally or operationally in a position to exercise restraint or discretion over” its supplier. Id. NSK requests that the Court remand the issue to Commerce and instruct it to consider the evidence of NSK’s lack of control of its supplier in order to rebut the presumption of affiliation. See id. Commerce argues that NSK failed to exhaust its administrative remedies. See Def.’s Mem. at 25. In its preliminary analysis memorandum, Commerce stated that for purposes of calculating CV, NSK had based its cost of manufacturing (“COM”) on the transfer price of parts supplied by affiliates, but that Commerce adjusted COM so that it was based on the actual cost of the parts. See id. at 28. In its brief, NSK argued that the transfer prices fairly reflected market value, and that Commerce need not reject the transfer prices. See id. NSK also argued that its supplier was not in a position to provide favorable treatment to NSK, and contended that the supplier dealt with NSK at arm’s length. See id. at 29. Despite its acknowledgment that NSK raised the supposed “affiliation” between it and its supplier in its case brief, Commerce maintains that NSK failed to raise the issue during the administrative process. See id. Tor-rington argues that Commerce reasonably determined that the transfer prices of NSK’s supplier were not at arm’s length. See Torrington’s Resp. at 33-36. It is a cardinal principle of administrative law that a court may not consider a party’s arguments that were not made before the agency. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“We have recognized ... that orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts.”); Unemployment Compensation Comm’n of Alaska v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L.Ed. 136 (1946) (“A reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the [agency] of an opportunity to consider the matter, make its ruling, and state the reasons for its action.”). In this case, however, there is no absolute requirement of exhaustion in the Court of International Trade. See Alhambra Foundry Co. v. United States, 12 CIT 343, 346-47, 685 F.Supp. 1252, 1255-56 (1988). Section 2637(d) of Title 28 of the United States Code directs that “the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies.” By its use of the phrase “where appropriate,” Congress vested discretion in the Court to determine the circumstances under which it shall require the exhaustion of administrative remedies. See Cemex, S.A. v. United States, 133 F.3d 897, 905 (Fed.Cir.1998). “[E]ach exercise of judicial discretion in not requiring litigants to exhaust administrative remedies” has been characterized as “‘an exception to the doctrine of exhaustion.’ ” Alhambra Foundry, 12 CIT at 347, 685 F.Supp. at 1256 (citing Timken Co. v. United States, 10 CIT 86, 93, 630 F.Supp. 1327, 1334 (1986)). Here, NSK has exhausted its administrative remedies. As Commerce acknowledges, NSK brought forth the issue of affiliation in its case brief following Commerce’s preliminary analysis memorandum. See Def.’s Mem. at 28. Relying upon its argument that NSK failed to exhaust its administrative remedies, Commerce did not address the merits of the issue in its brief to the Court. Accordingly, the Court remands this issue to Commerce for reconsideration. V. Commerce’s Inclusion of NTN’s Home-Market Alleged Sample Sales and Sales with High Profit Levels in the Home-Market Database; Commerce’s Inclusion of a Particular Ball Bearing Model in Koyo’s Home-Market Database and its Finding Regarding Foreign Like Product A. Background Commerce is required to base its NV calculation upon “the price at which the foreign like product is first sold ... in the ordinary course of trade.” 19 U.S.C. § 1677b(a)(l)(B)(i). Analogously, CV must be calculated using “amounts incurred ... for profits, in connection with the production and sale of a foreign like product, in the ordinary course of trade, for consumption in the foreign country....” 19 U.S.C. § 1677b(e)(2)(A). NTN contended during the review that Commerce, in calculating NV, should have excluded sample sales and sales with high profit levels because they were outside of the ordinary course of trade. See Final Results, 62 Fed.Reg. at 2123. Commerce rejected NTN’s contention, explaining as follows: We have determined that NTN’s characterization of its reported data is not substantiated by the administrative record. NTN’s sales information merely identifies certain sales as home[-]market sample sales and other sales with “abnormally high profits” as not in the ordinary course of trade. NTN examined only quantity and frequency of sales in determining which sales to report as outside the ordinary course of trade. NTN’s supplemental questionnaire response provided no additional information; it simply identified the sales as having been made outside the ordinary course of trade.... [T]he fact that a respondent identified sales as sample and prototype sales does not necessarily render such sales outside the ordinary course of trade.... Verification of the designation of certain sales as samples merely proves that the respondent identified sales recorded as samples in its own records. Such evidence does not indicate that such sales were made outside the ordinary course of trade for purposes of calculating NV in these reviews. In addition, [Commerce] noted at the home[-]market verification of NTN’s data that the firm was unable to substantiate that all sales coded as samples were sample sales. Id. at 2123-24. Koyo alleged that Commerce matched United States sales of one particular model to a home-market model which it sold out of the ordinary course of trade and which does not qualify as a foreign like product as defined by the antidumping statute. See id. at 2124. Koyo contended that the home-market model: (1) is produced to unusual product specifications; (2) was sold at aberrational prices; and (3) is not a foreign like product because it is “not identical in physical characteristics and is not like the United States model being compared to it because of a different end-use.” Id. Commerce rejected Koyo’s contentions, stating the following: In spite of Koyo’s arguments, this model and the respective bearing family meet the matching criteria as outlined in [Commerce’s] questionnaire. Also, the difference-of-mer chandise adj ustment for the family to which we matched the U.S. model does not exceed plus or minus 20 percent of the U.S. model’s COM.... Koyo has not demonstrated how the model’s costs can meet our 20-percent test yet be so dissimilar. Moreover, sales of models at high prices is insufficient to establish a sale outside the ordinary course of trade. Id. B. Contentions of the Parties NTN argues that Commerce’s failure to exclude NTN’s sales with unusually high profit levels from the NV and CV calculations, despite NTN providing sufficient evidence on record indicating that these sales were outside of the ordinary course of trade, was inconsistent with 19 U.S.C. § 1677b(a)(l)(B), the SAA and the regulation 19 C.F.R. § 351.102(b), all of which clearly instruct Commerce to make such an exclusion. See NTN’s Mem. Supp. Mot. J. Agency R. (“NTN’s Mem.”) at 8-9. NTN also argues that Commerce erred in including its home-market sample sales in the calculation of NV because facts on the record support that the sales were made outside of the ordinary course of trade. See id. at 10-11. NTN, therefore, requests that its sales with high profit levels and samples sales be disregarded in the calculation of NV. See id. Koyo argues that Commerce should have excluded sales of a particular ball bearing model, “Model X,” from the database and margin calculation because the transactions in which Model X was sold were outside the ordinary course of trade as defined by the antidumping statute and the SAA. See Koyo’s Mem. P. & A. Supp. Mot. J. Agency R. at 23-24. Koyo contends that in determining whether transactions are outside the ordinary course of trade, Commerce should have considered factors other than price at which the merchandise was sold, such as the fact that Model X is produced according to unusual product specifications. See id. at 25. Koyo also maintains that even if sales of Model X are not outside the ordinary course of trade, there is no basis for concluding that these sales provide an acceptable match to United States sales. See id. at 29. Koyo asserts that Model X falls within none of the categories of a “foreign like product” and should have not been matched to United States sales. See id. at 30. Koyo again criticizes Commerce’s reliance upon the single factor of cost in making its determination. See id. Commerce alleges that it properly exercised its discretion in rejecting NTN’s argument that Commerce must disregard sales with high profit levels as sales not in the ordinary course of trade because “NTN provided no information, other than numerical profit amounts, to support its claim,” and a “mere claim that certain sales were ‘sales with abnormally high profits’ does not constitute sufficient evidence to exclude them upon the basis that they are outside of the ordinary course of trade.” Def.’s Mem. at 47. Commerce further asserts that the Court should reject NTN’s request to exclude samples for which it received no consideration on the basis that the sales were outside the ordinary course of trade because NTN failed to provide sufficient evidence to support its claim. See id. at 49-50. Although NTN cites NSK for the proposition that “sample sales are commonly considered to be outside the ordinary course of trade,” Commerce contends that NSK is not applicable because that case did not address NTN’s claim regarding sample sales that are outside the ordinary course of trade, but rather addressed sample sales that are unsupported by consideration. See id. at 52. Commerce also contends that it properly rejected Koyo’s arguments. Commerce argues that by referencing Final Results of Antidumping Administrative Reviews; Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan, 58 Fed.Reg. 64,720 (Dec. 9, 1993), it explained that it based its determination on the standard set forth in that review, namely, that Commerce accounts for all the circumstances particular to the relevant sales rather than one factor in isolation. See Def.’s Mem. at 38. Commerce rejects Koyo’s contention that the use of certain materials to make the model as well as the use to which Model X is put render the bearing unusual because Koyo failed to show that Model X does not meet Commerce’s model match criteria for ball bearings or that Model X is not used as a ball bearing. See id. at 39. Commerce also rejects Koyo’s characterization of its sales as aberrant based on their price because high price alone is not sufficient to exclude sales that would otherwise be within the ordinary course of trade. See id. at 40. Commerce further contends that it properly determined that Model X was a foreign like product because the statute requires that “if foreign market sales of ‘similar’ merchandise are not available for comparison, Commerce must select foreign market sales of merchandise of the same general class or kind as the merchandise being compared.” Id. at 41. Commerce argues that it was granted broad discretion in determining what constitutes similar merchandise for purposes of comparison and exercised this discretion in two ways. See id. First, Commerce developed a model-matching criteria for the purpose of identifying similar merchandise where there were sales of identical merchandise in the foreign market, and it used sales of the most similar bearing family when identical matches could not be found. See id. at 42. Second, Commerce applied the 20 percent difmer test to identify the most similar merchandise. See id. The difmer test required Commerce to consider whether “the difference between the variable costs of manufacturing of the U.S. and foreign market merchandise is greater than 20 percent of the variable cost of the U.S. merchandise,” and to disregard sales of foreign market merchandise failing this test. Id. at 42 — 43. Commerce “relies upon variable costs of manufacturing to indicate the impact of physical differences on the costs,” and Commerce assumes “that the fixed costs of manufacturing the United States merchandise and the foreign market merchandise are not affected by the physical differences of the merchandise and that the additional variable costs that are incurred due to physical differences are fully reflected in the price of the merchandise.” Id. at 44. Commerce argues that the model-matching criteria it used, and that Koyo criticizes, properly account for physical characteristics such as bearing types and precision grades and, when identical matches do not exist, Commerce matches the United States sales to a bearing model family. See id. at 45. Commerce maintains that even when costs are similar, it will consider bearing models to be comparable only if they meet the matching criteria. See id. at 46. Here, Commerce claims that it knew that the ball bearing model was comparable since “it shared the same eight pertinent characteristics as the U.S. bearing and all the other bearings within the family.” Id. at 45-46. Torrington claims that Commerce properly rejected NTN’s request to exclude high profit levels sales from the NV and CV calculation and sample sales from the NV calculation because: (1) a higher profit on a particular sale does not establish that a sale is outside the ordinary course of trade, and (2) NTN failed to show that the contested sales were not in the ordinary course of trade. See Torrington’s Resp. at 37-39. Torrington also claims that Koyo failed to carry the burden of establishing that the sales at issue were outside the ordinary course of trade. See id. at 12. Tor-rington maintains that “the product matched the criteria in Commerce’s questionnaire and was reported as a foreign like product by Koyo.” Id. at 13. C. Analysis The term “ordinary course of trade” is defined as: the conditions and practices which, for a reasonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to merchandise of the same class or kind. [Commerce] shall consider the following sales and transactions, among others, to be outside the ordinary course of trade: (A) Sales disregarded under section 1677b(b)(l) of this title. (B) Transactions disregarded under section 1677b(f)(2) of this title. 19 U.S.C. § 1677(15) (emphasis supplied). Section 1677b(b)(l) deals with below-cost sales. Section 1677b(f)(2) deals with sales to affiliated persons. Therefore, Commerce must consider below-cost sales and sales between related parties as sales outside the ordinary course of trade. Although § 1677b(b)(l)’s below-cost sales and § 1677b(f)(2)’s affiliated-party transactions are specifically designated as outside the ordinary course of trade, the “among others” language of § 1677(15) clearly indicates that other types of sales could be excluded as being outside the ordinary course of trade. Commerce “may consider sales or transactions to be outside the ordinary course of trade if [Commerce] determines, based on an evaluation of all of the circumstances particular to the sales in question, that such sales or transactions have characteristics that are extraordinary for the market in question.” 19 C.F.R. § 351.102(b) (emphasis supplied). Examples that could be considered outside the ordinary course of trade include: (1) off-quality merchandise; (2) merchandise produced according to unusual product specifications; (3) merchandise sold at aberrational prices or with abnormally high profits; (4) merchandise sold pursuant to unusual terms of sale; or (5) merchandise sold to an affiliated party not at an arm’s-length transaction. See 19 C.F.R. § 351.102(b). Determining whether a sale or transaction is outside the ordinary course of trade is a question of fact. In making this determination, Commerce considers not just “one factor taken in isolation but rather ... all the circumstances particular to the sales in question.” Murata Mfg. Co., Ltd. v. United States, 17 CIT 259, 264, 820 F.Supp. 603, 607 (1993) (citation omitted). Commerce’s methodology for making this determination is codified in section 351.102(b) of Commerce’s regulations. See 19 C.F.R. § 351.102(b); see also Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Sweden, and the United Kingdom; Final Results of Antidumping Duty Administrative Review, 64 Fed.Reg. 35,590, 35,620 (July 1, 1999). Thus, Commerce has the discretion to interpret § 1677(15) to determine which sales are outside the ordinary course of trade, such as sales involving aberrational prices and abnormally high profit levels. Section 351.102(b) of Title 19 of the Code of Federal Regulations effectively interprets the statutory phrase “outside the ordinary course of trade.” 19 U.S.C. § 1677(15). In resolving questions of statutory interpretation, the Chevron test requires this Court first to determine whether the statute is clear on its face. If the language of the statute is clear, then this Court must defer to Congressional intent. See Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. If the statute is unclear, however, then the question for the Court is whether the agency’s answer is based on a permissible construction of the statute. See id. at 843, 104 S.Ct. 2778; see also Corning Glass Works v. United States Int’l Trade Comm’n, 799 F.2d 1559, 1565 (Fed.Cir.1986) (finding the agency’s definitions must be “reasonable in light of the language, policies and legislative history of the statute”). Here, the statutory provision defining what is considered outside the ordinary course of trade is unclear. While the statute specifically defines “ordinary course of trade,” it provides little assistance in determining what is outside the scope of that definition. The statute merely identifies a non-exhaustive list of situations in which sales or transactions are to be considered outside the “ordinary course of trade.” This Court finds the statute is ambiguous as to what constitutes a sale outside the ordinary course of trade. What Congress intended to exclude from the “ordinary course of trade” is also not immediately clear from the statute’s legislative history. In the SAA, Congress stated that in addition to the specific types of transactions to be considered outside the ordinary course of trade, “Commerce may consider other types of sales or transactions to be outside the ordinary course of trade when such sales or transactions have characteristics that are not ordinary as compared to sales or transactions generally made in the same market.” H.R. DOC. No. 103-826, vol. 1, at 834. Congress also stated that as the statute does not provide an exhaustive list of situations which qualify as being outside the ordinary course of trade, “the Administration intends that Commerce will interpret section 771(15) [19 U.S.C. § 1677(15) ] in a manner which will avoid basing normal value on sales which are extraordinary for the market in question.” Id. This Court finds the legislative history is also ambiguous as to what constitutes a sale outside the ordinary course of trade. Because neither the statutory language nor the legislative history explicitly establishes what is considered to be outside the “ordinary course of trade,” the Court assesses the agency’s interpretation of the provision to determine whether the agency’s interpretation is reasonable and in accordance with the legislative purpose. See Chevron, 467 U.S. at 843, 104 S.Ct. 2778. In determining whether Commerce’s interpretation is reasonable, the Court considers, among other factors, the express terms of the provisions at issue, the objectives of those provisions, and the objective of the antidumping scheme as a whole. The purpose of the ordinary course of trade provision is “to prevent dumping margins from being based on sales which are not representative” of the home market. See Monsanto Co. v. United States, 12 CIT 937, 940, 698 F.Supp. 275, 278 (1988). Commerce’s methodology for deciding when sales are outside the “ordinary course of trade” has been to examine the totality of the circumstances surrounding the sale or transaction in question to determine whether the sale or transaction is extraordinary. Commerce’s regulation specifically states, “sales or transactions [may be considered] outside the ordinary course of trade if [,] ... based on an evaluation of all of the circumstances particular to the sales in question, [ ] such sales or transactions have characteristics that are extraordinary for the market in question.” 19 C.F.R. § 351.102(b). Commerce’s methodology allows it, on a case-by-case basis, to examine all conditions and practices which may be considered ordinary in the trade under consideration and to determine which sales or transactions are, therefore, outside the ordinary course of trade. Because such a methodology gives Commerce wide discretion in deciding under what circumstances sales or transactions are outside the ordinary course of trade and circumstances differ in each case, this Court finds that, in light of the statute’s legislative purpose, Commerce’s interpretation of the statute and exercise of its discretion by requiring additional evidence demonstrating that sales with high profit levels were outside of the ordinary course of trade before excluding such sales from the NV and CV calculations was reasonable. NTN provided Commerce with insufficient evidence to show that Commerce should have excluded sales with abnormally high profits. The mere fact of abnormally high profits is not enough to put these sales outside of the ordinary course of trade. The presence of profits higher than those of other sales is merely an element for Commerce to take into consideration and does not necessarily place the sales outside of the ordinary course of trade; nor does it strip Commerce of the right to exercise its discretion and conclude that sales with abnormally high profits lack the characteristics necessary to place them outside the ordinary course of trade. Consequently, because Commerce’s interpretation and application of the statute was reasonable and the record reflects that NTN did not provide sufficient additional evidence that supports its claim that the disputed sales were extraordinary for the market in question, Commerce was justified in its decision to include NTN’s sales with unusually high profit levels in the NV and CV calculations. The Court also finds that Commerce rightfully included NTN’s home-market “sample” sales in the NV calculation because NTN failed to provide sufficient additional evidence that those sales were outside the ordinary course of trade. By contrast, Commerce’s determinations with respect to Koyo must be reconsidered. Koyo provided evidence in support of its contention that Model X was outside the ordinary course of trade in addition to evidence that sales of Model X were at aberrational prices. In addition to .evidence of price, Koyo presented evidence of quantity, product specifications requiring special materials, standards and processes required to produce the model, particular use of the model, and packaging requirements. There is no indication that Commerce even considered these factors; in the Final Results, Commerce simply stated that “Koyo has not demonstrated how the model’s costs can meet our 20-percent test yet be so dissimilar” and that “sales of models at high prices [are] insufficient to establish a sale outside the ordinary course of trade.” 62 Fed.Reg. at 2124. The Court, therefore, remands this issue to Commerce, instructing it to reconsider its determination that Model X was outside the ordinary course of trade and to articulate a clear basis for any conclusion it reaches. The Court also remands Commerce’s determination that Koyo’s home-market ball bearing could be compared to United States sales because it is a foreign like product. Koyo does not contend that Model X failed the model match methodology and the difmer test. Commerce applied them here and found the merchandise comparable; however, Commerce did not indicate whether it made its determination under § 1677(16)(B) or (C). Accordingly, the Court remands this issue to Commerce. Commerce is directed to articulate the basis for its determination and demonstrate how each element of the applicable subsection is satisfied. VI. Commerce’s Determination of the Level of Trade for NTN and Denial of a Level of Trade Adjustment for, NTN and NSK A. Background 1. Statutory Provisions Under pre-URAA antidumping law, there were no specific provisions providing for an adjustment to foreign market value (“FMV”) for any difference in LOT between United States price (now EP or CEP) and FMV. Commerce, however, promulgated a regulation stating that: (1) it normally would calculate FMV and United States price based on sales at the same commercial LOT; and (2) if such sales were insufficient to permit an adequate comparison, Commerce would calculate FMV based on such or similar sales at the most comparable LOT in the United States market, making appropriate adjustments for differences affecting price comparability. See 19 C.F.R. § 353.58 (1994); see generally NEC Home Elecs., Ltd., 54 F.3d at 739 (discussing 19 C.F.R. § 353.58). The URAA amended the anti-dumping statute to provide for a specific provision regarding adjustments to NV for differences in LOTs. Instead of FMV, see 19 U.S.C. § 1677b (1988), the statute now provides for NV, see URAA § 233(a)(1), 108 Stat. at 4898 (replacing the term FMV with NV), which shall be based on: the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constmcted export price. 19 U.S.C. § 1677b(a)(l)(B)(i) (emphasis added). The statute also provides for an LOT adjustment to NV under the following conditions: The price described in [§ 1677b(a)(l)(B), i.e., NV,] shall also be increased or decreased to make due allowance for any difference (or lack thereof) between the export price or constructed export price and the price described in [§ 1677b(a)(l)(B) ] (other than a difference for which allowance is otherwise made under [§ 1677b(a) ]) that is shown to be wholly or partly due to a difference in level of trade between the export price or constructed export price and normal value, if the difference in level of trade— (i) involves the performance of different selling activities; and (ii) is demonstrated to affect price comparability, based on a pattern of consistent price differences between sales at different levels of trade in the country in which normal value is determined. In a case described in the preceding sentence, the amount of the adjustment shall be based on the price differences between the two levels of trade in the country in which normal value is determined. 19 U.S.C. § 1677b(a)(7)(A). In sum, to qualify for an LOT adjustment to NV, a party has the burden to show that the following two conditions have been satisfied: (1) the difference in LOT involves the performance of different selling activities; and (2) the difference affects price comparability. See SAA at 829 (stating that “if a respondent claims [an LOT] adjustment to decrease normal value, as with all adjustments which benefit a responding firm, the respondent must demonstrate the appropriateness of such adjustment”); see also NSK Ltd. v. Koyo Seiko Co., Ltd., 190 F.3d 1321, 1330 (Fed.Cir.1999) (noting that a respondent bears the burden of establishing entitlement to an LOT adjustment). When the available data does not provide an appropriate basis to grant an LOT adjustment, but NV is established at an LOT constituting a more advanced stage of distribution than the LOT of the CEP, the statute ensures a fair comparison by providing for an additional adjustment to NV known as the “CEP offset.” See 19 U.S.C. § 1677b(a)(7)(B). Specifically, the CEP offset provides that NV “shall be reduced by the amount of indirect selling expenses incurred in the country in which normal value is determined on sales of the foreign like product but not more than the amount of such expenses for which a deduction is made [from CEP] under [19 U.S.C. § 1677a(d)(l)(D) ].” 19 U.S.C. § 1677b(a)(7)(B). 2. Commerce’s LOT Methodology During this review, Commerce applied the following LOT methodology. See Final Results, 62 Fed.Reg. at 2105; Preliminary Results, 61 Fed.Reg. at 35,718. In accordance with § 1677b(a)(l)(B)(i), Commerce first calculates NV based on exporting-country (or third-country) sales, to the extent practicable, at the same LOT as the United States (EP and CEP) sales. See Final Results, 62 Fed.Reg. at 2105. When Commerce is unable to find comparison sales at the same LOT as the EP or CEP sales, it compares such United States sales to sales at a different LOT in the comparison (home or third-country) market. See id. With respect to the LOT methodology for CEP sales, Commerce first calculates CEP by making adjustments to its starting price under 19 U.S.C. § 1677a(d) (1994), but before making any adjustments under § 1677a(c). See id. Commerce reasoned that the § 1677a(d) “adjustments are necessary in order to arrive at, as the term CEP makes clear, a ‘constructed’ export price,” that is, it is intended to reflect as closely as possible a price corresponding to an EP between non-affiliated exporters and importers. Id. at 2107. Once the starting price is adjusted under § 1677a(d), Commerce has a “hypothetical transaction price that would likely have been charged to the first purchaser in the United States had that purchaser been unaffiliated to the exporter.” Def.’s Mem. at 49-50. The next step in its LOT analysis is to determine whether sales in the home market exist that are at the same LOT as the adjusted CEP sales. In making such a determination, Commerce examines whether the home-market sales are “at different stages in the marketing process than the export price or CEP,” that is, Commerce reviews and compares the distribution systems in the home market and U.S. export markets, “including selling functions, class of customer, and the level of selling expenses for each type of sale.” Final Results, 62 Fed.Reg. at 2105. If the adjusted CEP sales and the NV sales are at a different LOT, Commerce then considers whether an LOT adjustment is appropriate. In determining the propriety of an adjustment to NV, Commerce determines whether two conditions specified in § 1677b(a)(7)(A) are satisfied: (1) “there must be differences between the actual selling activities performed by the exporter at the level of trade of the U.S. sale and the level of trade of the comparison market sales used to determine NV”; and (2) “the differences must affect price comparability as evidenced by a pattern of consistent price differences between sales at the different levels of trade in the market in which NV is determined.” Preliminary Results, 61 Fed.Reg. at 35,718. If there is no pattern of consistent price differences, no adjustment is made. Finally, for CEP sales, if NV is established at an LOT which constitutes a more advanced stage of distribution than the CEP LOT, and if there is no appropriate basis for granting an LOT adjustment, Commerce makes a CEP offset to NV under § 1677b(a)(7)(B). See id. B. NSK’s Issues 1. NSK Failed to Exhaust Its Administrative Remedies Commerce maintains that NSK failed to raise the issue of Commerce’s failure to grant a partial LOT adjustment for NSK’s home-market level 2 sales. See Def.’s Mem. at 74-75. Commerce contends that NSK had ample opportunity to raise this issue, and it would be unjust to require Commerce to waste public resources in addressing it. See id. at 76. NSK maintains that it raised the issue of the LOT adjustment in its General Issues Case Brief, its original response to Commerce and at the Commerce General Issues hearing. See NSK’s Reply at 14. NSK maintains that although it may not have clearly expressed its argument in those submissions, it clearly raised the issue of appropriate LOT matches and adjustments before Commerce and that the issue is ripe for review by the Court. See id. at 15. Commerce is not contending that NSK altogether failed to raise the issue of the LOT adjustment; rather, Commerce takes issue with NSK’s failure to raise the particular matter of a partial, price-based LOT adjustment. Regardless of whether NSK failed to properly raise the issue during the administrative process, the Court exercises its discretion to rule on the issue since it has been resolved in prior decisions. 2. Commerce Properly Denied a Partial, Price-based LOT Adjustment to NV for NSK’s CEP sales NSK agrees that Commerce properly used the CEP as adjusted for § 1677a(d) expenses prior to its LOT analysis. NSK also argues that Commerce should have granted it a “partial,” price-based LOT adjustment. See NSK’s Mem. at 27. . NSK first notes that Commerce found two LOTs in the home market, one corresponding to original equipment manufacturers (“OEM”) sales and the other to after market (“AM”) sales. See id. at 23. NSK also agrees that when Commerce matched CEP sales to some home-market sales, Commerce correctly applied a CEP offset because there was no basis for quantifying a price-based LOT adjustment for CEP to certain NV matches. See id. Further, NSK notes that Commerce correctly