Zhaoqing Tifo New Fibre Co. v. United States (60 F. Supp. 3d 1328, 2015)

OPINION

RIDGWAY, Judge:

In this action, Plaintiff Zhaoqing Tifo New Fibre Co., Ltd. (“Zhaoqing Tifo”) — a Chinese producer and exporter of polyester staple fiber — contests the final results of the U.S. Department of Commerce’s fourth administrative review of the anti-dumping duty order covering polyester staple fiber from the People’s Republic of China. See Certain Polyester Staple Fiber From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review; 2010-2011, 78 Fed. Reg. 2366 (Jan. 11, 2013) (“Final Results”); Issues and Decision Memorandum for the Final Results of the 2010-2011 Administrative Review (Jan. 4, 2013) (Pub. Doc. No. 108) (“Issues & Decision Memorandum”).

Pending before the Court is Plaintiffs Motion for Judgment on the Agency Record, in which Zhaoqing Tifo contends that the antidumping margin calculated by Commerce in the Final Results “double counts” certain energy costs and is therefore too high. See generally Plaintiffs Rule 56.2 Memorandum Re Counts I-IV of the Complaint iii Support of Judgment on the Agency Record (“Pl.’s Brief’); Plaintiffs Rule 56.2 Reply Brief (“Pl.’s Reply Brief’).

The Government opposes Zhaoqing Tifo’s motion, arguing that the company failed to exhaust its administrative remedies, and that, in any event, Commerce’s treatment of energy costs in the Final Results is supported by substantial evidence and otherwise in accordance with law. The Government thus maintains that Commerce’s determination should be sustained. See generally, e.g., Defendant’s Response to Plaintiffs Rule 56.2 Motion for Judgment Upon the Agency Record (“Def.’s Response Brief’). Notably, the Government does not directly address the merits of Zhaoqing Tifo’s claim that the treatment of energy costs in the Final Results led to double counting. Id. Like the Government, the Defendant-Interve-nor — DAK Americas LLC (the “Domestic Producer”) — similarly contends that Zhaoqing Tifo’s motion is barred by the doctrine of exhaustion, and, moreover, asserts that there is no double counting. See generally, e.g., DefendanNIntervenor’s Response Brief in Opposition to Plaintiffs Motion for Judgment Upon the Agency Record (“Def.-Int.’s Response Brief’).

Jurisdiction lies under 28 U.S.C. § -1581(c) (2006). For the reasons set forth below, Zhaoqing Tifo’s Motion for Judgment on the Agency Record must be granted and this matter remanded to Commerce for further consideration.

I. Background

Dumping occurs when merchandise is imported into the United States and sold at a price lower than its “normal value,” resulting in material injury (or the threat of material injury) to the U.S. industry. See 19 U.S.C. §§ 1673, 1677(34), 1677b(a). The difference between the normal value of the merchandise and the U.S. price is the “dumping margin.” See 19 U.S.C. § 1677(35). When normal value is compared to the U.S. price and dumping is found, antidumping duties equal to the dumping margin are imposed to offset the dumping. See 19 U.S.C. § 1673; see generally Dorbest Ltd. v. United States, 604 F.3d 1363, 1367 (Fed.Cir.2010).

Normal value generally is calculated using either the price in the exporting market (i.e., the price in the “home market” where the goods are produced) or the cost of production of the goods, when the exporting country is a market economy country. See 19 U.S.C. § 1677b. However, where — -as here — the exporting country has a non-market economy, there is often concern that the factors of production (inputs) that are consumed in producing the merchandise at issue are under state control, and that home market sales therefore may not be reliable indicators of normal value. See 19 U.S.C. § 1677(18)(A); see generally Dorbest, 604 F.3d at 1367.

In cases such as this, where Commerce concludes that concerns about the sufficiency or reliability of the available data do not permit the normal value of the merchandise to be determined in the typical manner, Commerce identifies one or more market economy countries to serve as a “surrogate” and then “determined the normal value of the subject merchandise on the basis of the value of the factors of production” in the relevant surrogate country or countries, including “an amount for general expenses and profit plus the cost of containers, coverings, and other expenses.” See 19 U.S.C. § 1677b(c)(l), (4). This surrogate value analysis is designed to determine a producer’s costs of production as if the producer operated in a hypothetical market economy. See, e.g., Downhole Pipe & Equipment, L.P. v. United States, 776 F.3d 1369, 1375 (Fed.Cir.2015) (explaining that “Commerce ‘attempt[s] to construct a hypothetical market value of [a] product’ in the nonmarket economy” at issue (quoting Nation Ford Chemical Co. v. United States, 166 F.3d 1373, 1375 (Fed.Cir.1999))).

Factors of production to be valued “include, but are not limited to — (A) hours of labor required, (B) quantities of raw materials employed, (C) amounts of energy and other utilities consumed, and (D) representative capital cost, including depreciation.” See 19 U.S.C. § 1677b(c)(3); see generally Dorbest, 604 F.3d at 1367-68. However, valuing the factors of production consumed in producing subject merchandise does not capture certain items such as (1) manufacturing/factory overhead, (2) selling, general, and administrative expenses (“SG & A”), and (3) profit. Commerce calculates those surrogate values using ratios — known as “surrogate financial ratios” — that the agency derives from the financial statements of one or more companies that produce identical (or at least comparable) merchandise in the relevant surrogate market economy country. Sec 19 C.F.R. § 351.408(c)(4) (2010); 19 U.S.C. § 1677b(c)(l); Dorbest, 604 F.3d at 1368. The central issue in the pending motion is whether — as Zhaoqing Tifo alleges — certain energy costs are embedded in the surrogate financial ratios that Commerce used in the Final Results here that are also (in effect) captured elsewhere in the agency’s antidumping calculations, resulting in the double counting of energy costs (and thus inflating Zhaoqing Tifo’s antidumping margin).

The underlying antidumping order in this case, which dates back to 2007, covers polyester staple fiber from the People’s Republic of China (“PRC”), a product generally used as stuffing in sleeping bags, mattresses, ski jackets, comforters, cushions, pillows, and furniture. See Notice of Antidumping Duty Order: Certain Polyester Staple Fiber from the People’s Republic of China, 72 Fed.Reg. 30,545, 30,546 (June 1, 2007). The case at bar involves the fourth administrative review of that antidumping duty order. The period of review is June 1, 2010 through May 31, 2011.

Zhaoqing Tifo itself requested this administrative review, because, the company explains, “all the rates of the mandatory respondents earned in the,first through the third administrative review were de minimis and the 4.44% rate assigned to Zhaoqing Tifo as a ‘separate rate’ exporter was a hindrance to [the company’s] sales” of polyester staple fiber. Pl.’s Brief at 2-3. “Indeed,” Zhaoqing Tifo states, “the three largest producer/exporters of recycled [polyester staple fiber] have been excluded from the [Antidumping Duty] Order.” Id. at 3. Like those three producers, Zhaoqing Tifo recycles bottles made from polyester staple fiber (e.g., water and soda bottles) by chipping, cleaning, drying, and extruding them into polyester staple fiber. Id.

In all four prior segments of this proceeding — that is, in the original antidump-ing duty investigation that led to the Anti-dumping Duty Order here and in the first three administrative reviews of that Order, Commerce selected India as the surrogate country and relied on Indian financial statements to calculate surrogate financial ratios. Plaintiffs Supplemental Brief Regarding Exhaustion of Administrative Remedies at 3 (“Pl.’s Supp. Brief’). Because financial statements in India are relatively detailed, Commerce was able to segregate (ie., isolate) the energy costs that were reflected in the financial statements and to exclude them from the surrogate financial ratios calculated by the agency. Id. Commerce then separately valued Zhaoqing Tifo’s energy costs — including electricity, water, and coal — in the factors of production database. Id. This methodology avoided any potential double counting.

In this fourth administrative review, Commerce advised the parties that it “intended] to issue its surrogate country selection prior to or in” the agency’s Preliminary Results. See Commerce’s Memorandum to All Interested Parties at 2 (Nov. 9, 2011) (Pub.Doc. No. 27) (“Commerce’s Memorandum on Surrogate Country Selection”). India did not appear on the “non-exhaustive list of six countries” that Commerce provided to the parties for consideration as potential surrogates. Id. at l. Commerce solicited the parties’ views as to the appropriate surrogate country, establishing a firm deadline for the filing of such views. At the same time, Commerce also set a second deadline (which was one month after the first deadline) for the parties’ submission of any “publicly available information to value factors of production for consideration for purposes of [Commerce’s Preliminary Determination].” See id. at 2; Certain Polyester Staple Fiber From the People’s Republic of China: Preliminary Results of the Antidumping Duty Administrative Review, 77 Fed.Reg. 39,990, 39,991-92 (July 6, 2012) (“Preliminary Results”) (summarizing Commerce’s Memorandum on Surrogate Country Selection).

On the deadline specified by Commerce, Zhaoqing Tifo submitted its views concerning the selection of an appropriate surrogate country, advocating for Thailand. Preliminary Results, 77 Fed.Reg. at 39,-991. The deadline came and went, however, and the Domestic Producer filed nothing. Id. On Commerce’s second deadline (one month thereafter), Zhaoqing Tifo submitted extensive, detailed data concerning the valuation of factors of production, assuming the selection of Thailand as the surrogate country (particularly in the absence of any suggestion of any other country by the Domestic Producer). Id. That second deadline passed and, again, the Domestic Producer filed nothing. Id.

Not until 10 days after Commerce’s second deadline did the Domestic Producer file comments setting forth (for the first time, in comments that the Domestic Producer styled as “rebuttal”) its views that Commerce should select Indonesia as the surrogate country — a full 41 days past Commerce’s specified deadline for the parties’ submission of such views. See Domestic Producer’s Submission of Surrogate Value Data for Preliminary Results (Cover Letter) at 3 (Jan. 19, 2012) (Pub.Doc. No. 43); Preliminary Results, 77 Fed.Reg. at 39,991-92 (referring to Domestic Producer’s submission); Commerce’s Memorandum on Surrogate Country Selection at 2 (directing parties to file “comments, if any, on surrogate country selection ... no later than December 9, 2011 ”). With those views, the Domestic Producer also submitted surrogate value data that assumed Commerce’s selection of Indonesia as the surrogate country — 10 days after the deadline specified by Commerce for the submission of such data for consideration for inclusion in the Preliminary Results. See Domestic Producer’s Submission of Surrogate Value Data for Preliminary Results (Parts 1-2) at Atts. 1-2 (Jan. 19, 2012) (Pub.Doc. Nos. 44-45); Preliminary Results, 77 Fed.Reg. at 39,991-92 (referring to Domestic Producer’s submission); Commerce’s Memorandum on Surrogate Country Selection at 2 (requiring all comments and surrogate value data for consideration in the Preliminary Results to be filed “no later than January 9, 2012 ”).

In the Preliminary Results, Commerce — for the first time in any segment of this proceeding — selected Indonesia as the surrogate country, as advocated by the Domestic Producer in the comments that it filed with Commerce. Preliminary Results, 77 Fed.Reg. at 39,992-93. To derive surrogate financial ratios, the Preliminary Results relied on the financial statements of P.T. Asia Pacific, an Indonesian producer of polyester staple fiber. Id., 77 Fed.Reg. at 39,992, 39,995. Commerce based that decision in part on its understanding at that time that P.T. Asia Pacific “share[d] the same level of integration as Zhaoqing Tifo.” Id., 77 Fed. Reg. at 39,992.

P.T. Asia Pacific’s financial statements are relatively detailed, and include separate line items for that company’s energy inputs. Pl.’s Brief at 5; see also Petitioner’s Rebuttal Brief at 13-14 (Pub.Doc. No. 101) (“Domestic Producer’s Administrative Rebuttal Brief’). Commerce therefore excluded all energy costs from the surrogate financial ratios for purposes of the Preliminary Results, and valued all of Zhaoqing Tifo’s energy inputs — coal, electricity, and water — in the factors of production database, with no concerns about double counting. PL’s Brief at 5. The Preliminary Results addressed Commerce’s determinations concerning surrogate values not only for coal, electricity, and water, but also for a wide range of other factors of production, including such items as inland freight and brokerage and handling. See generally Preliminary Results, 77 Fed.Reg. at 39,994-95.

Following Commerce’s publication of the Preliminary Results, Zhaoqing Tifo filed an administrative case brief with the agency. See Case Brief of Zhaoqing Tifo New Fibre Co., Ltd. (Pub.Doc. No. 94) (“Zhaoq-ing Tifo’s Administrative Case Brief’); Final Results, 78 Fed.Reg. at 2366. In that brief, Zhaoqing Tifo explained that the operations of P.T. Asia Pacific were much more highly integrated than those of Zhaoqing Tifo, and that it was therefore not appropriate for Commerce to rely on P.T. Asia Pacific’s financial statements in calculating surrogate financial ratios for this administrative review. Zhaoqing Tifo argued that Commerce instead should rely on the financial statements of a different Indonesian producer of polyester staple fiber, P.T. Tífico Fiber Indonesia Tbk (“P.T. Tífico”), which Zhaoqing Tifo had placed on the administrative record. Zhaoqing Tifo explained that P.T. Tífico— like Zhaoqing Tifo — is not fully integrated. See generally Zhaoqing Tifo’s Administrative Case Brief at 3,15.

Attached to its administrative case brief were Zhaoqing Tifo’s proposed calculations of surrogate financial ratios derived from the financial statements of P.T. Tífico. See Zhaoqing Tifo’s Administrative Case Brief at 20; id. at Exh. 3. In the presentation of the proposed surrogate financial ratios, Zhaoqing Tifo left the “Energy” column blank, reflecting the fact that — unlike the financial statements of P.T. Asia Pacific— P.T. Tifico’s financial statements do not include specific line items for energy inputs. See Zhaoqing Tifo’s Administrative Case Brief at Exh. 3; see also Pl.’s Supp. Brief at 11-12 (captioned “Zhaoqing Tifo Presented A Financial Calculation With No Energy Factors, Implying That If The Department Included Them As [Factors of Production] They Would Be Double Counted”); Plaintiffs Supplemental Response Brief Regarding Exhaustion of Administrative Remedies at 5, 8 (“Pl.’s Supp. Response Brief’) (similar).

Besides contesting the financial statements used to derive the surrogate financial ratios, Zhaoqing Tifo’s administrative case brief also challenged the surrogate values for coal and for.water that Commerce used in calculating the Preliminary Results. In particular, on the assumption that Commerce would continue to rely on P.T. Asia Pacific’s financial statements in the Final Results and thus would also continue to include coal in the factors of production database (as Commerce did in the Preliminary Results), Zhaoqing Tifo argued that Commerce should abandon the Indonesian import statistics that were used to value coal in the Preliminary Results and instead should use domestic values — specifically, coal prices from the Indonesian Ministry of Energy and Mineral Resources for the grade of coal that Zhaoqing Tifo uses in its operations. Zhaoqing Tifo’s Administrative Case Brief at 2, 7-15. Zhaoqing Tifo further advocated that the water costs for a single municipality (which were used in the Preliminary Results) should be replaced with averaged water rates including data for additional municipalities. Id. at 3, 23.

Although the Domestic Producer did not file an administrative case brief, it did file a rebuttal brief responding to Zhaoqing Tifo’s brief. See generally Domestic Producer’s Administrative Rebuttal Brief; Final Results, 78 Fed.Reg. at 2366. The Domestic Producer argued that, in calculating surrogate financial ratios, Commerce’s Final Results should continue to rely on the financial statements of P.T. Asia Pacific that were used in the Preliminary Results. See Domestic Producer’s Administrative Rebuttal Brief at 13-14. The Domestic Producer characterized any differences between the levels of integration of Zhaoqing Tifo and P.T. Asia Pacific as “trivial.” Id. at 13.

More importantly for purposes of the pending motion, in the rebuttal brief that it filed with Commerce, the Domestic Producer underscored the fact that the financial statements of P.T. Tífico are much less “complete and detailed” than those of P.T. Asia Pacific — a concern that the Domestic Producer characterized as “more critical” than any differences in the relative levels of integration of the companies’ operations. Domestic Producer’s Administrative Rebuttal Brief at 13-14. In particular, the Domestic Producer emphasized that P.T. Tifico’s financial statements “include[] no separate breakout of [P.T. Tifico’s] energy costs.” Id. (emphasis in the original); see also id. at 1 (stating that P.T. Tífico “is a less suitable surrogate because its financial data are less detailed”).

Criticizing Zhaoqing Tifo for assertedly “ignoring] the lack of ... electricity, water or any other energy-specific data” in P.T. Tifico’s financial statements, the Domestic Producer underscored that those financial statements “have a major element missing, namely the cost of goods sold has no breakout for electricity, water or other energy factors.” Domestic Producer’s Administrative Rebuttal Brief at 14 (emphases added). The Domestic Producer further expressly cautioned Commerce that— if the agency were to decide to rely on P.T. Tifico’s financial statements for purposes of the Final Results — the agency would be required to “place all potential energy costs into the [manufacturing/factory] overhead numerator” in the surrogate financial ratios and to “turn off all company-specific energy and water consumption factors” (ie., to remove all “energy and water consumption factors” from Zhaoqing Tifo’s factors of production database), “in order to capture all costs while also preventing double-counting.” Id. (emphases added); see also Issues & Decision Memorandum at 9 (restating, almost verbatim, Domestic Producer’s points concerning the absence of any line items for “electricity, water, [and] other energy factors” in P.T. Tifico’s financial statements and related need for Commerce to remove “all company-specific energy and water consumption factors” from factors of production database, in order to “preventf ] double-counting”).

The Domestic Producer similarly addressed the other claims in Zhaoqing Tifo’s administrative case brief. As to the valuation of coal, for example, the Domestic Producer argued that Commerce’s Preliminary Results properly relied on import data, disputing Zhaoqing Tifo’s attacks on the accuracy and reliability of those data and questioning the domestic price data that Zhaoqing Tifo proffered. Domestic Producer’s Administrative Rebuttal Brief at 1-13. The Domestic Producer also opposed Zhaoqing Tifo’s assertions that the Final Results should use a more broad-based set of data to value water. Id. at 17.

In the Final Results, Commerce made a change from the Preliminary Results (which had relied on the financial statements of P.T. Asia Pacific) and instead derived the surrogate financial ratios using the financial statements of P.T. Tífico. Final Results, 78 Fed.Reg. at 2367; see generally Issues & Decision Memorandum at 8-11 (Comment 2). Persuaded by Zhaoq-ing Tifo’s administrative case brief, Commerce concluded that “P.T. Tifico’s less integrated and less complex production operations are more comparable to Zhaoqing Tifo’s than those of P.T. Asia Pacific.” Id. at 10. Commerce therefore determined that, for purposes of the Final Results, the financial statements of P.T. Tífico “repre-sente ] the best available information.” Id. at 11.

However, acknowledging the legitimacy of the Domestic Producer’s concerns about the lack of detail in P.T. Tifico’s financial statements, Commerce’s Issues and Decision Memorandum pointedly observed that “P.T. Tifico’s financial statement does not break out energy [costs ].” Issues & Decision Memorandum at 14 (Comment 4) (emphasis added); sqe also id. at 11 (stating that “P.T. Tifico’s financial statement does not include a separate breakout of its costs for electricity and water”). Accordingly, “in order to prevent double counting,” the Final Results “placed all electricity and water costs into the [manufacturing/factory] overhead numerator” (ie., included electricity and water in the surrogate financial ratios) and removed from the factors of production database the “electricity and water consumption factors” that the agency had included in the database for purposes of the Preliminary Results. Id.; see also Final Results, 78 Fed.Reg. at 2367 (stating that Commerce “did not separately value electricity and water in the final margin program because these factors of production are already captured in the surrogate financial ratios”).

Commerce was silent as to any potential double counting of the “other energy factors” (beyond water and electricity) to which the Domestic Producer’s rebuttal brief referred. Despite the fact that P.T. Tifieo’s financial statements do not include line items for electricity, water, or any other sources of energy (such as the natural gas that P.T. Tifico uses), and even though the Issues and Decision Memorandum made specific mention of the risk of double counting energy inputs, Commerce continued to include coal in Zhaoqing Tifo’s factors of production database in the Final Results, just as it had done in the Preliminary Results. See Issues & Decision Memorandum at 3-8 (Comment 1). Further, rejecting Zhaoqing Tifo’s arguments favoring the use of Indonesian domestic data on coal prices, Commerce continued to rely on the same import statistics that it used in the Preliminary Results. Id. at 5-8.

Zhaoqing Tifo’s objections to the surrogate value used for water in the Preliminary Results were mooted in the Final Results by Commerce’s determination not to separately value water in the factors of production database. Commerce reasoned that, because P.T. Tifico’s financial statements include no separate line item for water, water is “already captured in the surrogate financial ratios.” See Final Results, 78 Fed.Reg. at 2367 (stating that Commerce “did not separately value electricity and water in the final margin program because these factors of production are already captured in the surrogate financial ratios”); Issues & Decision Memorandum at 13-14 (Comment 4) (explaining that, “[b]ecause P.T. Tifico’s financial statement does not break out energy, consistent with [Commerce’s] practice, [the Final Results] will not separately value water in the margin program, as it is already captured in the surrogate financial ratios” (footnote omitted)). The Final Results assigned Zhaoqing Tifo a dumping margin of 9.98%. See Final Results, 78 Fed.Reg. at 2367.

Zhaoqing Tifo was puzzled by the fact that — given that P.T. Tifico’s financial statements do not include specific line items for electricity, water, or any other energy inputs (such as natural gas) — Commerce removed only electricity and water from Zhaoqing Tifo’s factors of production database for purposes of the Final Results. In light of Commerce’s express recognition of the need to avoid double counting, and absent any explanation for treating coal differently than electricity and water, Zhaoqing Tifo assumed that Commerce’s inclusion of coal in the factors of production database was an inadvertent error by the agency, and filed a Ministerial Error Correction Request with Commerce to that effect. See Zhaoqing Tifo’s Ministerial Error Correction Request (Pub.Doc. No. 112). But see Domestic Producer’s Rebuttal to Zhaoqing Tifo’s Jan. 22nd “Clerical Error” Allegation (Pub.Doc. No. 113).

In its response to Zhaoqing Tifo’s allegation of ministerial error, Commerce declined Zhaoqing Tifo’s request to have coal removed from the factors of production database. See generally Commerce’s Ministerial Error Allegation Memorandum (Pub.Doc. No. 116) (“Commerce’s Ministerial Error Allegation Memorandum”). Specifically, Commerce stated that the inclusion of coal in the factors of production database was “the result of a methodological decision” by the agency, not a “ministerial error.” Id. at 5-6. In its entirety, Commerce’s two-paragraph rationale reads:

We disagree with Zhaoqing Tifo that [Commerce] made a ministerial error by including steam coal as a factor of production (“FOP”) in its normal value calculations for Zhaoqing Tifo in the Final Results.... [A] ministerial error is defined at 19 CFR § 351.224(f) as “an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any [other] similar type of unintentional error which the Secretary considers ministerial.” Thus, any issue raised by interested parties as a ministerial error which is, in fact, the result of a methodological decision by [Commerce] will not be considered a ministerial error as it would not meet [Commerce’s] regulatory definition of the term.

As we noted in the Preliminary] Surrogate Value Memo, [Commerce] intended to include steam coal as an FOP in [the agency’s] calculation of normal value, and to value this FOP using Indonesia’s Harmonized Tariff Schedule category 2701.19. [Commerce] did not change this decision in the Final Results. Moreover, it is clear [Commerce] intended to include steam coal as an FOP in the Final Results as it is the first issue in the Issues and Decision Memo, where [the agency] articulated [its] intention to apply a surrogate value to the steam coal FOP. Thus, [Commerce] did not inadvertently fail to exclude steam coal as an FOP in the normal value calculations for the Final Results.

Id. (footnotes omitted).

Commerce’s Ministerial Error Allegation Memorandum thus shed very little light on the Final Results’ treatment of coal and other energy inputs such as natural gas (relative to water and electricity). In some respects, the Ministerial Error Allegation Memorandum raised more questions than it answered. The Memorandum does not explain why it is significant that Commerce’s Preliminary Surrogate Value Memorandum indicated that the agency intended to value coal in the factors of production database. The Preliminary Surrogate Value Memorandum pre-dates the Preliminary Results, which relied on the financial statements of P.T. Asia Pacific; and those financial statements include line items for energy inputs. Thus, for purposes of the Preliminary Results, no party objected to including all three of Zhaoqing Tifo’s energy inputs in the factors of production database (and, to avoid double counting, excluding water, electricity, and natural gas from the surrogate financial ratios). However, Commerce relied on a different set of financial statements for the Final Results — specifically, the financial statements of P.T. Tífi-co, which (unlike the financial statements of P.T. Asia Pacific) do not include line items for energy sources.

Further, the Preliminary Surrogate Value Memorandum indicated not only Commerce’s intent to value coal in the factors of production database, but also electricity and water as well (which is, in fact, what Commerce did in the Preliminary Results). The Ministerial Error Allegation Memorandum is silent as to why the change of financial statements and the need to avoid double counting required Commerce to remove (exclude) electricity and water from the factors of production database in the Final Results, but did not also require the removal (exclusion) of coal.

This action ensued.

II. Standard of Review

In an action reviewing an anti-dumping determination by Commerce, the agency’s determination must be upheld except to the extent that it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B)(i); see also NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319 (Fed.Cir.2009). Substantial evidence is “more than a mere scintilla”; rather, it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456. (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d 1375, 1380 (Fed.Cir.2008) (same).

Moreover, any determination as to the substantiality of the evidence “must take into account whatever in the record fairly detracts from its weight,” including “contradictory evidence or evidence from which conflicting inferences could be drawn.” Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (quoting Universal Camera Corp., 340 U.S. at 487-88, 71 S.Ct. 456); see also Mittal Steel, 548 F.3d at 1380-81 (same). That said, the mere fact that it may be possible to draw two inconsistent conclusions from the record does not prevent Commerce’s determination from being supported by substantial evidence. American Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed.Cir.2001); see also Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

In evaluating whether a determination by Commerce was “arbitrary and capricious,” the court considers “whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). “The agency must articulate a ‘rational connection between the facts found and the choice made.’ ” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). A determination is arbitrary and capricious if the agency “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence , or is so implausible that it [cannot] be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (“State Farm, ”). Similarly, “[a]gency action is arbitrary and capricious if ‘the agency offers insufficient reasons for treating similar situations differently.’ ” West Deptford Energy, LLC v. FERC, 766 F.3d 10, 21 (D.C.Cir.2014) (quoting Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 216 (D.C.Cir.2013)).

Lastly, while Commerce must explain the bases for its decisions, “its explanations do not have to be perfect.” NMB Singapore, 557 F.3d at 1319-20. Nevertheless, “the path of Commerce’s decision must be reasonably diseernable” to support judicial review. Id. (citing State Farm, 463 U.S. at 43, 103 S.Ct. 2856); see generally 19 U.S.C. § 1677f(i)(3)(A) (requiring Commerce to “include in a final determination ... an explanation of the basis for its determination”).

III. Analysis

The motion at hand is directed to Zhaoqing Tifo’s claim that Commerce “double counted” certain energy costs in calculating Zhaoqing Tifo’s antidumping margin in the Final Results of the fourth administrative review at issue here. Specifically, Zhaoqing Tifo contends that Commerce’s use of surrogate financial ratios derived from the financial statements of P.T. Tífico (which do not break out energy costs), in tandem with Commerce’s inclusion of coal in the factors of production database, resulted in the double counting of energy costs in the Final Results. According to Zhaoqing Tifo, it was improper for Commerce to include coal in the factors of production database because the energy consumed by P.T. Tífico in its production of polyester staple fiber is embedded in manufacturing/factory overhead in P.T. Ti-fico’s financial statements, and thus is included in the surrogate financial ratios that Commerce used in the Final Results.

As a threshold matter, the Government and the Domestic Producer contend that the doctrine of exhaustion of administrative remedies bars Zhaoqing Tifo from prosecuting that claim. As discussed below, however, the exhaustion argument is unavailing, in light of the specific circumstances of this case. Moreover, the Final Results’ treatment of energy sources other than electricity and water (including Zhaoqing Tifo’s coal and P.T. Tifico’s natural gas) is not explained, precluding both any assessment of the substantiality of the evidence supporting Commerce’s inclusion of coal in the factors of production database and any determination as to whether Commerce’s action was arbitrary and capricious, as Zhaoqing Tifo contends.

A. The Doctrine of Exhaustion of Administrative Remedies

Invoking the doctrine of exhaustion of administrative remedies in an effort to bar consideration of the merits of Zhaoqing Tifo’s “double counting” claim, the Government and the Domestic Producer point to the statute, which provides that “the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d); Def.’s Response Brief at 7-8; Def.-Int.’s Response Brief at 7. The Government and the Domestic Producer similarly note the Court of Appeals’ observation that this Court “generally takes a ‘strict view’ of the requirement that parties exhaust their administrative remedies.” Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed.Cir.2007); see also Def.’s Response Brief at 8; Defendant-Intervenor’s Supplemental Brief in Response to the December 30, 2013 Court Order at 7 (“Def.-Int.’s Supp. Brief’). In addition, the Government and the Domestic Producer cite 19 C.F.R. § 351.309(c)(2), Commerce’s regulation requiring that a party’s administrative case brief (filed with the agency following issuance of preliminary results) “present all arguments that continue in the submitter’s view to be relevant to the ... final results.” 19 C.F.R. § 351.309(c)(2); see also Def.’s Response Brief at 9, 12; Def.-Int.’s Supp. Brief at 7.

Against this backdrop, the Government asserts that Zhaoqing Tifo’s administrative case brief “did not challenge Commerce’s inclusion of steam coal in the factors of production [database]” and that Zhaoqing Tifo therefore failed to exhaust its administrative remedies and is prohibited from raising its double counting claim in this forum. Def.’s Response Brief at 7; see also, e.g., id. at 2, 5-6, 7-14. The Domestic Producer makes the same argument. See, e.g., Def.-Int.’s Response Brief at 1-2, 8-13.

As explained below, however, the doctrine of exhaustion has no application here, where — at the time of the filing of administrative case briefs and rebuttal briefs with Commerce — Zhaoqing Tifo had no objection (and no reason to object) to Commerce’s inclusion of coal in the factors of production database. Moreover, even if the doctrine of exhaustion did apply, the administrative rebuttal brief filed by the Domestic Producer alerted Commerce to the potential for double counting of energy inputs if the agency were to switch to the financial statements of P.T. Tífico for purposes of the Final Results. Commerce thus had sufficient opportunity to address the double counting of energy in the Final Results. In fact, the Final Results did address double counting with respect to electricity and water, albeit not as to coal or natural gas or any other source of energy-

1. The Inapplicability of the Doctrine of Exhaustion

The Government and the Domestic Producer seek to make much of the fact that Commerce included coal in the factors of production database at the Preliminary Results stage. Thus, they contend, Zhaoq-ing Tifo was obligated to include in its administrative case brief an objection to that treatment of coal, and the absence of such an objection constitutes a failure to exhaust administrative remedies. According to the Government and the Domestic Producer, it was too late for Zhaoqing Tifo to object to the inclusion of coal in the factors of production database and to raise its concerns about double counting energy inputs after the Final Results issued. See, e.g., Def.’s Response Brief at 5-6, 7, 9-13; Def.-Int.’s Response Brief at 1-2, 9-11.

What the Government and the Domestic Producer fail to appreciate, however, is the significance of Commerce’s decision to change the financial statements on which it relied for calculating surrogate financial ratios between the Preliminary Results (where Commerce used the financial statements of P.T. Asia Pacific) and the Final Results (where the agency instead relied on the statements of P.T. Tifico). Because the financial statements of P.T. Asia Pacific include individual line items for energy inputs, the Preliminary Results isolated and specifically excluded those inputs from the surrogate financial ratios and instead included coal, water, and electricity in the factors of production database. As such, Zhaoqing Tifo had no objections to the inclusion of coal (or water, or electricity) in the factors of production database, and no concerns about the double counting of energy inputs, at the Preliminary Results stage.

Under these circumstances, Zhaoqing Tifo was not required to exhaust its administrative remedies, because — simply stated — at the time of the Preliminary Results, there was nothing to exhaust. See generally, e.g., Corus Staal, 502 F.3d at 1381 (observing that doctrine of exhaustion does not apply in situations where “the agency change[s] its position ... after [a] party’s case brief [has] been filed”); Qingdao Taifa Group Co. v. United States, 33 CIT 1090, 1092-93, 637 F.Supp.2d 1231, 1236-37 (2009) (stating that “[a] party ... may seek judicial review of an issue that it did not raise in a case brief if Commerce did not address the issue until its final decision, because in such a circumstance, the party would not have had a full and fair opportunity to raise the issue at the administrative level” (citation omitted)), aff'd, 467 Fed.Appx. 887 (Fed.Cir.2012) (non-precedential); Jacobi Carbons AB v. United States, 38 CIT -, -, 992 F.Supp.2d 1360, 1366-67 (2014) (same). Zhaoqing Tifo’s claim for potential double counting did not arise until the Final Results, when Commerce both relied on the financial statements of P.T. Tifico and included coal in the factors of production database. Although the financial statements of P.T. Tifico do not include separate line items for energy inputs (unlike the statements of P.T. Asia Pacific), the Final Results left coal in the factors of production database, and excluded only electricity and water.

The Government and the Domestic Producer argue that Zhaoqing Tifo’s administrative case brief should have anticipated the determinations that Commerce reached in the Final Results. See, e.g., Defendant’s Supplemental Brief at 3-4, 8-10 (“Def.’s Supp. Brief’); Def.-Int.’s Supp. Brief at 1-2, 9, 15-19; Defendant-Interve-nor’s Memorandum on Supplemental Authority in Response to Court Order Dated March 2, 2015 at 3-4, 9-10 (“Def.-Int.’s Brief on Supp. Authority”). But the law does not mandate that litigants be prescient.

Zhaoqing Tifo was not required to anticipate that Commerce (1) would adopt P.T. Tifico’s financial statements in lieu of those of P.T. Asia Pacific for purposes of the Final Results, and (2) would recognize that P.T. Tifico’s financial statements do not include discrete line items for water, electricity, and other energy inputs, and (3) would therefore exclude water and electricity from the factors of production database, but (4) would leave coal in the database, with no explanation for that treatment (particularly in light of any potential for double counting). Because Commerce gave no indication prior to the Final Results that it would use financial ratios derived from financial statements that lacked line items for energy inputs but would nevertheless leave coal in the factors of production database, Zhaoqing Tifo’s “first meaningful opportunity to challenge Commerce’s decision [to include coal in the factors of production database for purposes of the Final Results] ... is in this judicial review proceeding.” See Valley Fresh Seafood, Inc. v. United States, 31 CIT 1989, 1994, 2007 WL 4380137 (2007); see generally id., 31 CIT at 1991, 1994-96 (same); see also Jacobi Carbons, 38 CIT at -, 992 F.Supp.2d at 1367 (under similar circumstances, noting that “while plaintiffs argued for the use of [certain] data [in their administrative briefs filed with Commerce], they could hardly foresee [at that time] what use [Commerce] would make of that data,” and reasoning that “[i]t is simply too much to ask of the parties to anticipate” the position that Commerce would take and the rationale that the agency would give in the Final Results, and holding that, “because plaintiffs had no realistic opportunity to present their arguments before [Commerce], ... plaintiffs did not fail to exhaust their administrative remedies”).

In sum, the doctrine of exhaustion of administrative remedies has no application here.

2. Assuming Arguendo That the Doctrine of Exhaustion Applied

Even if the doctrine of exhaustion of administrative remedies were applicable, two separate but related exceptions to that doctrine also would apply. Thus, even if the doctrine of exhaustion were applicable, Zhaoqing Tifo nevertheless still would be entitled to its day in court on its claim that Commerce’s inclusion of coal in the factors of production database, coupled with the agency’s use of P.T. Tifico’s financial statements (which do not separately break out energy costs), resulted in the double counting of energy inputs in the Final Results.

One well-recognized exception to the doctrine of exhaustion permits a party to litigate an issue that the party did not exhaust at the administrative level where that issue was raised before the agency by a different party. See, e.g., Indiana Utility Regulatory Comm’n v. FERC, 668 F.3d 735, 739 (D.C.Cir.2012) (acknowledging exception to doctrine of exhaustion “when an agency has considered the argument at the urging of another party”); Kessler v. Surface Transportation Board, 635 F.3d 1, 8 (D.C.Cir.2011) (recognizing exception to exhaustion doctrine allowing a plaintiff to “raise [in litigation] any issue raised by any party to the administrative proceeding”); Portland General Electric Co. v. Bonneville Power Administration, 501 F.3d 1009, 1023-25 (9th Cir.2007) (explaining that failure to exhaust is excused where issue that plaintiff seeks to raise in litigation “was raised by someone other than the [plaintiff]” at the administrative level); American Forest & Paper Ass’n v. EPA 137 F.3d 291, 295-96 (5th Cir.1998) (explaining that, even though plaintiff “did not participate in the agency proceedings below” (and thus, by definition, did not raise before the agency the issues that plaintiff sought to litigate in court), “the concerns underlying the exhaustion doctrine [were] not implicated” where the issues that plaintiff sought to raise in litigation were raised by opposing parties at the administrative level; pointing out that “it is ironic that [plaintiff] now seeks to preserve its claim on the basis of its opponents’ complaints”).

It is therefore of relatively little moment whether or not, at the administrative level, Zhaoqing Tifo raised concerns about the potential double counting of energy inputs, because — without regard to whatever Zhaoqing Tifo said or didn’t say — the Domestic Producer clearly sounded the alarm. Among other things, the administrative rebuttal brief that the Domestic Producer filed with Commerce specifically and explicitly warned Commerce in no uncertain terms that, if the agency were to rely on P.T. Tifico’s financial statements in the Final Results, the agency could avoid double counting only by “plae[ing] all potential energy costs into the [manufacturing/factory] overhead numerator” in the surrogate financial ratios and “turn[ing] off all [.Zhaoqing Tifo ]- specific energy and water consumption factors ” by removing them from the factors of production database. Domestic Producer’s Administrative Rebuttal Brief at 14 (emphases added). In short, even if the doctrine of exhaustion were applicable here (which it is not), any failure to exhaust on the part of Zhaoqing Tifo would be excused, because the Domestic Producer raised the double counting issue before Commerce.

In addition, there is a second, related exception that would similarly serve to excuse any failure to exhaust by Zhaoqing Tifo (again, assuming arguendo that the doctrine of exhaustion otherwise applied). Specifically, the exhaustion requirement does not bar a plaintiff from raising an issue in litigation if the agency in fact had an opportunity to consider the issue at the administrative level, whether or not the agency actually availed itself of that opportunity. See, e.g., Indiana Utility Regulatory Comm’n v. FERC, 668 F.3d at 739 (acknowledging exception to doctrine of exhaustion “when an agency has considered the argument”); Ningbo Dafa Chemical Fiber Co. v. United States, 580 F.3d 1247, 1259 (Fed.Cir.2009) (sustaining Court of International Trade’s ruling that plaintiffs litigation of issue was not barred by doctrine of exhaustion where Commerce had opportunity to consider plaintiff’s “alternative methodology” in course of agency proceeding), aff'g, 32 CIT 926, 933, 577 F.Supp.2d 1304, 1311 (2008) (stating court’s disagreement with Government’s “stance” that “Commerce lacked the opportunity to consider” issue raised by plaintiff in litigation); Portland General Electric, 501 F.3d at 1023-25 (explaining that failure to exhaust is excused where “[the] agency ... had an opportunity to consider the issue[,] .... even if the issue was considered sua sponte by the agency”).

The record here leaves no doubt that Commerce had an opportunity to consider the potential for double counting of energy inputs as a result of the agency’s inclusion of coal in the factors of production database, in tandem with its use of P.T. Tifico’s financial statements.

As discussed immediately above, the double counting issue was raised at a minimum by the Domestic Producer — and the fact that Commerce thus had an opportunity to consider the issue in the Final Results would alone suffice to preserve Zhaoqing Tifo’s right to pursue its double counting claim in this forum. But, in addition, the record further makes it clear that Commerce in fact considered the potential for double counting, at least as to some energy inputs.

Specifically, Commerce’s Issues and Decision Memorandum recognizes that “P.T. Tifico’s financial statement does not break out energy [costs].” Issues & Decision Memorandum at 14. Therefore, “in order to prevent double counting” (by having electricity and water both captured in the surrogate financial ratios and also included ■in the factors of production database), Commerce “placed all electricity and water costs into the [manufacturing/factory] overhead numerator” in the financial ratios, and removed from the factors of production database the “electricity and water [costs]” that the agency had included in the database in the Preliminary Results. Id. at 11; see also Final Results, 78 Fed. Reg. at 2367 (stating that Commerce “did not separately value electricity and water in the final margin program because these factors of production are already captured in the surrogate financial ratios”). However, Commerce did not address any potential double counting of the “other energy factors” (beyond water and electricity) to which the Domestic Producer’s rebuttal brief referred. See, e.g., Domestic Producer’s Administrative Rebuttal Brief at 14 (stating that P.T. Tifico’s financial statements have “no breakout for electricity, water or other energy factors ”) (emphasis added).

As such, even assuming arguendo that the doctrine of exhaustion did apply, any failure to exhaust by Zhaoqing Tifo would be excused, because Commerce was not deprived of the opportunity to address the double counting of energy inputs in the Final Results. In fact, Commerce’s Final Results did address double counting — albeit only as to electricity and water, and not coal or natural gas or any other source of energy.

B. The Doctrine of Judicial Estoppel

Apart from its invocation of the doctrine of exhaustion of administrative remedies, the Domestic Producer also contends that Zhaoqing Tifo’s double counting claim is independently barred by the doctrine of judicial estoppel. See generally Def.-Int.’s Supp. Brief at 1, 2, 23-25; Defendant Intervenor’s Supplemental Response Brief at 12, 15 (“Def.-Int.’s Supp. Response Brief’); Def.-Int.’s Brief on Supp. Authority at 8-9. Like the exhaustion arguments analyzed above, this argument too is lacking in merit.

The gravamen of judicial estoppel is that, “[a]bsent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.” 18B C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4477, at 558 (2d ed. 2002) (“Wright, Miller, & Cooper”) (earlier edition quoted in New Hampshire v. Maine, 532 U.S. 742, 749, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). In the seminal case, Davis v. Wakelee, the Supreme Court explained:

[WJhere a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.

Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 39 L.Ed. 578 (1895) (quoted in New Hampshire v. Maine, 532 U.S. at 749, 121 S.Ct. 1808). Thus, judicial estoppel “generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich, 530 U.S. 211, 227 n. 8, 120 S.Ct. 2143, 147 L.Ed.2d 164 (2000).

The Domestic Producer argues, in essence, that Zhaoqing Tifo is judicially es-topped from claiming in this forum that coal should not be included in the factors of production database, because — according to the Domestic Producer — Zhaoqing Tifo claimed at the administrative level that coal should be included in the database. See generally Def.-Int.’s Supp. Brief at 1, 2, 23-25; Def.-Int.’s Supp. Response Brief at 12, 1,5; Def.-Int.’s Brief on Supp. Authority at 8-9. That argument fails for several reasons.

As an initial matter, raising an argument for the first time in supplemental briefing is much too late. Even if the Domestic Producer’s judicial estoppel argument had been made in a timely fashion, however, it would have fared no better.

As the Supreme Court observed in New Hampshire v. Maine, judicial es-toppel applies only where “a party’s later position ... [is] ‘clearly inconsistent’ with its earlier position.” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808 (citations omitted); see also Hill-Rom Services, Inc. v. Stryker Corp., 755 F.3d 1367, 1380-82 (Fed.Cir.2014) (same). This is not such a case.

As detailed above, contrary to the assertions of the Government and the Domestic Producer, Zhaoqing Tifo did not affirmatively argue at the administrative level that coal should be included in the factors of production database. Instead, on the assumption that Commerce would continue to rely on P.T. Asia Pacific’s financial statements in the Final Results and thus would also continue to include coal in the factors of production database (as Commerce did in the Preliminary Results), Zhaoqing Tifo argued that Commerce should use a certain set of data (ie., coal prices from the Indonesian Ministry of Energy and Mineral Resources) in lieu of the Indonesian import statistics that Commerce used to value coal in the Preliminary Results. See, e.g., n. 21, supra (rejecting assertions of Government and Domestic Producer that Zhaoqing Tifo affirmatively advocated for inclusion of coal in factors of production database). That is precisely the same position that Zhaoqing Tifo presses in this litigation; and it is the subject of Count V of the Complaint (which is not at issue in the pending motion). See Complaint, Count V (contesting “the surrogate value of coal” that was used in the Final Results, if court determines that including a surrogate value for coal in the factors of production database “[was] legally valid”); n. 18, supra (explaining that pending motion is addressed solely to Counts I-IV of Complaint). Accordingly, contrary to the Domestic Producer’s judicial estoppel argument, Zhaoqing Tifo is not “blowing hot and cold.” And, because there is no inconsistency between Zhaoq-ing Tifo’s position in litigation and its position at the administrative level, judicial estoppel does not apply.

In addition, there is yet a third reason why the Domestic Producer’s judicial estoppel claim must fail. The Supreme Court has emphasized that judicial estoppel applies only where the party sought to be estopped “has succeeded in persuading a court to accept that party’s earlier position.” New Hampshire v. Maine, 532 U.S. at 750, 121 S.Ct. 1808; see also Hill-Rom Services, 755 F.3d at 1380 (same). As the Supreme Court has pointed out, “[a]bsent success in a prior proceeding, a party’s later inconsistent position introduces no ‘risk of inconsistent ... determinations,’ and thus poses little threat to judicial integrity.” New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. 1808 (citations omitted).

Here, however, Zhaoqing Tifo did not prevail at the administrative level. Zhaoq-ing Tifo’s arguments notwithstanding, the Final Results rejected the coal prices from the Indonesian Ministry of Energy and Mineral Resources that Zhaoqing Tifo proffered and instead continued to value coal using the same Indonesian import statistics that Commerce had used in the Preliminary Results. See Issues & Decision Memorandum at 5, 8 (Comment 1) (stating that Final Results continue to value coal using Indonesian import statistics relied on in Preliminary Results). Because Zhaoqing Tifo did not “succeed in persuading [Commerce] to accept [Zhaoq-ing Tifo’s] ... position” (an agency determination that Zhaoqing Tifo contests in Count V), judicial estoppel cannot apply— not even as to Count V of the Complaint, which (again) is not the subject of the pending motion. Judicial estoppel thus is no bar to consideration of the merits of Zhaoqing Tifo’s double counting claim.

C. The Merits of Zhaoqing Tifo’s “Double Counting” Claim

Although the administrative rebuttal brief that the Domestic Producer filed with Commerce put the agency on notice that P.T. Tifico’s financial statements include “no breakout for electricity, water or other energy factors” and argued that — in order to avoid double counting— the use of those financial statements in the Final Results would require the agency to exclude all energy inputs from the factors of production database, there is no dispute that Commerce removed only water and electricity, leaving coal in the database. See Domestic Producer’s Administrative Rebuttal Brief at 14; see also id. at 13-14 (emphasizing that P.T. Tifico’s financial statements “inelude[] no separate breakout of the company’s energy costs”); id. at 14 (arguing that use of P.T. Tifico’s financial statements in Final Results would require agency “to place all potential energy costs into the [manufacturing/factory] overhead numerator [ie., to account for all potential energy costs in the surrogate financial ratios] and turn off [ie., to exclude from the factors of production database] all company-specific energy and water consumption factors, in order to capture all costs while also preventing double-counting”); id. (highlighting lack of “electricity, water or any other energy-specific data in [P.T. Tifico’s] financial statements”).

In its Issues and Decision Memorandum, Commerce acknowledged that “P.T. Tifico’s financial statement does not break out energy [inputs].” Issues & Decision Memorandum at 13-14; see also id. at 11 (stating that “P.T. Tifico’s financial statement does not include a separate breakout of its costs for electricity and water”). Recognizing that fact, the Issues and Decision Memorandum expressly addressed the potential for double counting and the need to avoid double counting by excluding energy sources from the factors of production database — but only as to water and electricity, and not as to coal or natural gas or any other energy inputs.

The Issues and Decision Memorandum thus explained that, “in order to prevent double counting,” the Final Results “placed all electricity and water costs into the [manufacturing/factory] overhead numerator” (ie., accounted for all electricity and water costs by including them in the surrogate financial ratios) and removed from the factors of production database the “electricity and water consumption factors” that Commerce had included in the database for purposes of the Preliminary Results. Issues & Decision Memorandum at 11; see also Final Results, 78 Fed.Reg. at 2367 (stating that Commerce “did not separately value electricity and water in the final margin program because these factors of production are already captured in the surrogate financial ratios”). Similarly, elsewhere in the Issues and Decision Memorandum (discussing the surrogate value for water), Commerce explained that “[b]ecause P.T. Tifico’s financial statement does not break out energy, consistent with [Commerce’s] practice, [the Final Results] will not separately value water in the margin program, as it is already captured in the surrogate financial ratios.” Issues & Decision Memorandum at 13-14 (footnote omitted).

Conspicuously absent from the Final Results, however, is any explanation for Commerce’s treatment of coal or natural gas or any “other energy factors” beyond water and electricity to which the Domestic Producer’s administrative rebuttal brief referred. See Domestic Producer’s Administrative Rebuttal Brief at 14 (stating that P.T. Tifico’s financial statements include “no breakout for electricity, water or other energy factors ”) (emphasis added). Zhaoqing Tifo maintains that there are no grounds for treating coal differently than water and electricity, and that Commerce’s inclusion of coal in the factors of produetion database for purposes of the Final Results led to the double counting of energy inputs, because — according to Zhaoqing Tifo — like electricity and water, other energy inputs (such as natural gas) also are embedded in the surrogate financial ratios. See, e.g., Pl.’s Brief at 3, 4, 6-7, 8-9, 11,16, 20-21, 22, 23; PL’s Reply Brief at 12, 13-15, 22. Commerce’s Issues and Decision Memorandum is mum on these points.

Commerce’s Issues and Decision Memorandum does not explain, for exam