STANCEU, Judge:
In this consolidated action, four plaintiffs, Union Steel Manufacturing Co., Ltd. ("Union"), Dongbu Steel Co., Ltd. ("Dongbu"), Hyundai HYSCO ("HYSCO"), and United States Steel Corporation ("U.S. Steel"), challenge the final determination ("Final Results") issued by the International Trade Administration, U.S. Department of Commerce ("Commerce" or the "Department") in the fifteenth administrative review of an antidumping duty order on imports of certain corrosion-resistant carbon steel flat products ("CORE" or "subject merchandise") from the Republic of Korea ("Korea") for the period of August 1, 2007 through July 31, 2008 ("POR" or "period of review"). Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Final Results of the Fifteenth Admin. Review, 75 Fed.Reg. 13,490 (Mar. 22, 2010) ("Final Results"). Three of these plaintiffs — Union, Dongbu, and HYSCO — are Korean exporters of the subject merchandise and were respondents in the fifteenth administrative review. The remaining plaintiff, U.S. Steel, is a member of the domestic industry. U.S. Steel and HYSCO are also defendant-intervenors in this consolidated case, as is Nucor Corporation ("Nucor"), a member of the domestic industry. Before the court are the USCIT Rule 56.2 motions for judgment on the
The court determines that: (1) the Department's decision to use financial data pertaining only to the 2008 fiscal year of Union's parent company in determining Union's interest expense ratio cannot be upheld on judicial review; (2) in response to defendant's request for a voluntary remand, the court will order the Department to reconsider the "quarterly-cost methodology" used to apply the "recovery-of-costs" test to the home-market sales of Union and HYSCO and the "indexing" methodology wherever used in the Final Results; (3) on remand, the Department must reconsider the use in the Final Results of the quarterly-cost and indexing methodologies for various other purposes; (4) the Department must reconsider its decision to depart from its normal method for selecting comparison months of normal value sales; (5) in response to defendant's request for a voluntary remand, the court will order the Department to reconsider its decision to compare laminated CORE and non-laminated, painted CORE as "identical" merchandise; (6) in response to defendant's request for a voluntary remand, the court will order that Commerce reconsider the use of the zeroing methodology in the fifteenth review; (7) no relief is available on Dongbu's claim seeking an individually-determined dumping margin; and (8) in response to the defendant's request for a voluntary remand, remand is appropriate on U.S. Steel's challenge to the date of sale used for certain sales by HYSCO through a U.S. affiliate. The court determines, in addition, that any modifications to the weighted-average dumping margins of Union and HYSCO resulting from this remand shall be reflected in the rate applied to Dongbu.
The court summarizes below the procedural history of the fifteenth administrative review of the order on CORE from Korea and the procedural history of this litigation, both of which are somewhat complex.
Commerce initiated the fifteenth administrative review of the order on CORE from Korea on September 30, 2008, identifying seven Korean exporters of subject merchandise: Dongbu; Dongkuk Industries Co., Ltd. ("Dongkuk"); Haewon MSC Co., Ltd. ("Haewon"); HYSCO; LG Chem, Ltd. ("LG"); Pohang Iron and Steel Co., Ltd./Pohang Coated Steel Co., Ltd. ("POSCO Group"); and Union. Initiation of Antidumping & Countervailing Duty Admin. Reviews & Requests for Revocation in Part, 73 Fed.Reg. 56,795 (Sept. 30, 2008). On October 2, 2008, Commerce determined that it would not examine individually each respondent in the review, citing its authority under section 777A of the Tariff Act of 1930 ("Tariff Act" or the "Act"), 19 U.S.C. § 1677f-1(c) (2006), and provided an opportunity for parties to comment on mandatory respondent selection. Mem. from Int'l Trade Compliance Analyst to the File 1-2 (Oct. 2, 2008) (Admin.R.Doc. No. 4745) ("Invitation to Comment on Respondent Selection"). Dongbu filed such comments on October 21, 2008. Letter from Dongbu to the Sec'y of Commerce (Oct. 21, 2008) (Admin.R.Doc. No. 4811) ("Dongbu's Respondent Selection Comments").
On December 8, 2008, Commerce determined in a separate memorandum (the "Respondent Selection Memorandum") that it would examine individually only two respondents, Union and HYSCO. Mem. from Int'l Trade Compliance Analyst to Dir., Office 3 AD/CVD Operations, at 7 (Dec. 8, 2008) (Admin.R.Doc. No. 4817) ("Respondent Selection Mem."). On June
Commerce issued the preliminary results of the fifteenth review ("Preliminary Results") on September 8, 2009, preliminarily assigning weighted-average dumping margins of 0.43% to HYSCO, 0.16% to the POSCO Group, 3.94% to Union, and, as a simple "average" of the only non-de-minimis margin of the selected respondents, 3.94% to the non-selected respondents, which were Dongbu, Haewon, and LG. Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Notice of Prelim. Results of the Antidumping Duty Admin. Review, 74 Fed.Reg. 46,110, 46,114 (Sept. 8, 2009) ("Prelim. Results"). On December 16, 2009, Commerce issued memoranda to Union, HYSCO, and the POSCO Group announcing the Department's decision that, for purposes of margin calculations, certain costs would be calculated using four quarterly weighted averages rather than one weighted average for the entire POR and that the Department was departing from its normal method of determining comparison months for normal value. See, e.g., Mem. from Accountant to Dir., Office of Accounting (Dec. 16, 2009) (Admin.R.Doc. No. 5166) ("Union's Post-Prelim. Analysis Mem."). On March 22, 2010, Commerce issued the Final Results, which assigned weighted-average dumping margins of 3.29% to HYSCO, 0.01% to the POSCO Group (a de minimis margin), 14.01% to Union, and, as a simple average of the non-de-minimis margins of the selected respondents, 8.65% to the non-selected respondents. Final Results, 75 Fed.Reg. at 13,491.
Union, Dongbu, HYSCO, and U.S. Steel each challenged the Final Results, and the court consolidated these cases on May 13, 2010. Order (May 13, 2010), ECF No. 44. Defendant has requested a voluntary remand as to four claims in this consolidated litigation: (1) Union's claim challenging the Department's comparing "painted CORE in the same category as laminated CORE," Def.'s Resp. to Pls.' & Def.-intervenors' Mots. for J. upon the Agency R. 46-49 (Feb. 11, 2011), ECF No. 86 ("Def.'s Resp."); (2) U.S. Steel's claim challenging the Department's using the "shipment date," rather than a later "invoice date," as the date of sale for certain sales by HYSCO, id. at 59-60; (3) Union and HYSCO's claim challenging the Department's "cost-recovery methodology," Def.'s Mot. for Partial Voluntary Remand 1 (June 21, 2011), ECF No. 130 ("Def.'s June Remand Mot."); and (4) Union's claim challenging the Department's using the zeroing methodology in this administrative review, Def.'s Mot. for Partial Voluntary Remand (Aug. 24, 2011), ECF No. 141 ("Def.'s Aug. Remand Mot.").
The court exercises jurisdiction over this case according to section 201 of the Customs Courts Act of 1980 ("Customs Courts Act"), 28 U.S.C. § 1581(c) (2006). Under this jurisdictional provision, the court reviews actions commenced under section 516A of the Tariff Act, 19 U.S.C. § 1516a(a)(2)(B)(iii), including an action contesting the Department's issuance, under section 751 of the Tariff Act, 19 U.S.C. § 1675(a), of the final results of an administrative review of an antidumping duty
In an administrative review, Commerce determines a dumping margin for entries of subject merchandise by comparing the normal value and the export price or constructed export price. 19 U.S.C. §§ 1675(a)(2), 1677(35)(A). Under § 773(b)(1) of the Tariff Act, 19 U.S.C. § 1677b(b)(1), Commerce, when calculating normal value, in certain circumstances may exclude from the calculation home-market sales it determines to have been made at prices below the cost of production ("COP").
Considering interest and G & A expenses to be period costs, Commerce determined these expenses according to financial statements. Id. Commerce calculated Union's G & A expense ratio using Union's financial statement for fiscal year 2008 and calculated Union's interest expense ratio using the consolidated financial statement of Union's parent, Dongkuk Steel Mills Co. Ltd. ("DSM"), for fiscal year 2008.
Union claims that the use of the 2008 financial statements was unlawful because the interest expenses incurred in 2008 "were aberrational and do not reasonably reflect Union's actual data pertaining to the production and sale of the subject merchandise during the POR." Union's Br. 9. Union asserts that in 2008, after the close of the POR, DSM incurred "substantial and extraordinary foreign exchange losses," id. at 10, that resulted from the 2008 global financial crisis and that were reflected on DSM's 2008 financial statement, id. at 9-10. Specifically, Union contends that the 2008 financial crisis coincided with a rapid loss in the value of the Korean won, which led to DSM's recognizing extraordinarily large foreign-currency transaction and translation
Union raised essentially the same arguments before Commerce, arguing, inter alia, that "using the 2008 financial statements would significantly distort the calculation of Union's interest expense." Letter from Union to the Sec'y of Commerce 1-2 (Jan. 27, 2010) (Admin.R.Doc. No. 5219) ("Union's Rebuttal Br."). Referencing the large increase in 2008 foreign currency transaction and translation losses, Union argued that the "amount of such losses was not determinable ... until the end of 2008 and thus could not possibly have been taken into account by Union in setting its prices during the period of review...." Id. at 2. Union argued, further, that "[i]ncluding these exchange losses in Union's COP for the POR would be particularly egregious in this case because ... most of the depreciation in the Korean Won during 2008 took place from August through December 2008, i.e., in the months after the close of the POR." Id. at 7. Union argued that "[f]oreign exchange transaction and translation losses attributable to the depreciation of the Korean won after the close of the POR cannot, under any definition, be considered part of the `actual costs' incurred in producing and selling Union's home market merchandise during the POR." Id. at 8 (quoting 19 U.S.C. § 1677b(b)(3)(B)). According to Union, these circumstances warranted the Department's using a "blended rate" to calculate G & A and interest, for instance, by combining the 2007 and 2008 financial data using a weighted average. Id. at 5. Union also noted that Commerce had previously used a "blended rate" from the financial statements of the two fiscal years covered by a POR, citing the results of an administrative review of an antidumping duty order pertaining to CORE and cut-to-length steel plate from Canada ("CTL Plate from Canada 93/94"). Id. at 5 (citing Certain Corrosion-Resistant Carbon Steel Flat Products & Certain Cut-to-Length Carbon Steel Plate From Canada; Final Results of Antidumping Duty Admin. Reviews, 61 Fed.Reg. 13,815, 13,829 (Mar. 28, 1996)).
A comparison of DSM's 2007 and 2008 financial statements supports Union's contention that, primarily due to certain foreign-currency-related losses, the Department's change to the 2008 statement produced a financial expense ratio more than five times that derived from the 2007 statement. Letter from Union to the Sec'y of Commerce exhibit D-29, at 8-9 (Aug. 26, 2009) (Admin.R.Doc. No. 5005) ("DSM's Financial Statement");
In the Final Results, Commerce based its use of the 2008 statements to calculate G & A and interest expenses on what it described as its "typical" or "standard" practice of using the financial statements that most closely correspond to the POR. For G & A expense, Commerce stated that it has a standard practice of using "`the full-year G & A expense and cost of goods sold reported in the company's unconsolidated, audited fiscal year financial statements for the fiscal year that most closely corresponds to the period of investigation or period of review.'" Decision Mem. 42-43 (quoting the Department's "Antidumping Manual," Ch. 9, at 7, available at http://ia.ita.doc.gov/admanual).
After citing the alleged practice, Commerce rejected the arguments Union advanced against the use of only the 2008 financial statements to determine interest and G & A expenses. It characterized Union as arguing that "reliance upon 2008 fiscal year financial statements led to distortions in the margin calculation because it could not have factored into its home market prices post-period of review events, such as year-end adjustments and changes in net foreign currency transactions and translations." Id. at 44. Commerce rejected Union's argument, so construed, by stating, inter alia, that "Union fails to substantiate its assumption that it was completely unaware of pending end-of-fiscal year 2008 adjustments when setting home market prices during the POR." Id. In response to Union's argument that the decrease in the value of the won caused massive, unexpected foreign exchange losses, Commerce conceded that "the decline in the value of the Korean Won occurred more rapidly in the post POR period of 2008" but stated that "this in of itself is not conclusive." Id. Commerce explained that a departure from its "practice" was not warranted because "[t]he financial expense ratio is influenced by many factors, not simply the movement of exchange rates" and because "[n]ormally, large multinational companies like DSM try to minimize the risk associated with exchange rate changes by hedging their exposure to any one foreign currency." Id. at 44-45. Finally, Commerce rejected Union's suggestion that Commerce combine the 2008 and 2007 financial statement data using a blended rate. Commerce distinguished the facts of the prior case in which it had used a blended rate, CTL Plate from Canada 93/94, by noting that the POR in that case was eighteen months, covering the majority of two fiscal years. Id. at 45. Commerce concluded that "[a]bsent similar circumstances in this case, the Department has reasonably determined that a departure from its normal practice of selecting the single set of fiscal year financial statements that most closely correspond to the POR is not warranted." Id.
The Department's decision to use only the 2008 DSM financial statement to determine Union's interest expenses was unlawful for two reasons. First, Commerce failed to consider an important aspect of the question before it, which was whether determining Union's interest expense ratio solely on the basis of data in that financial statement produced the most accurate result. A basic purpose of the antidumping statute is the accurate determination of dumping margins. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990). In this case, Commerce was obligated to make a reasoned decision when choosing among data sources, mindful of its obligation to obtain the most accurate result "based on actual data pertaining to production and sales of the foreign like product...." 19 U.S.C. § 1677b(b)(3)(B). The court cannot identify within the Decision Memorandum an indication that Commerce had as its objective achieving the most accurate margin through the choice of data for measuring interest expenses during the POR. Instead, Commerce reasoned that using the 2008 financial statements accords with its practice and that Union had not met a burden of showing that Commerce must depart from this practice. See Decision Mem. 45 (concluding that "the Department has reasonably determined that a departure from its normal practice of selecting the single set of fiscal year financial statements that most closely correspond to the POR is not warranted"). When addressing
In omitting any discussion of the question of accuracy as it pertains to the obligation to use actual data on interest expenses, Commerce failed to address a significant concern raised by Union before Commerce: that the 2008 DSM financial statement was affected by aberrational foreign exchange losses stemming from exchange rate changes that occurred after the close of the POR and therefore was unrepresentative of Union's actual interest expense during the POR. Union's Rebuttal Br. 8. A remand is appropriate when Commerce fails to address all "significant concerns" that parties raise in administrative briefing. SKF USA Inc. v. United States, 630 F.3d 1365, 1374 (Fed.Cir.2011). Here, Union argued specifically that "[f]oreign exchange transaction and translation losses attributable to the depreciation of the Korean won after the close of the POR cannot, under any definition, be considered part of the `actual costs' incurred in producing and selling Union's home market merchandise during the POR." Union's Rebuttal Br. 8; see 19 U.S.C. § 1677b(b)(3)(B) (requiring that G & A expenses be "based on actual data pertaining to production and sales of the foreign like product"). Congress intended that Commerce use data pertaining to costs "during the period of investigation or review," as is confirmed by the Statement of Administrative Action that accompanied enactment of section 773 of the Tariff Act, 19 U.S.C. § 1677b(b), as part of the Uruguay Round Agreements Act. Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, Vol. 1, at 832 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4170 ("The determination of cost recovery is based on an analysis of actual weighted-average prices and costs during the period of investigation or review ...").
The Decision Memorandum pays scant, if any, attention to Union's argument that DSM's 2008 financial statement contained post-POR data that was not representative of Union's actual costs of producing and selling merchandise during the POR. While acknowledging that "Union also contends that reliance upon 2008 fiscal year financial statements led to distortions in the margin calculation," the document characterizes Union's argument as being based on Union's inability to "factor[] into its home market prices post-period of review events, such as year-end adjustments and changes in net foreign currency transactions and translations." Decision Mem. 44. Rejecting this aspect of Union's argument, Commerce stated that "Union fails to substantiate its assumption that it was completely unaware of pending end-of-fiscal year 2008 adjustments when setting home market prices during the POR." Id. While conceding the fact that "the decline in the value of the Korean Won occurred more rapidly in the post POR period of 2008," Commerce responded by asserting that "[t]he financial expense ratio is influenced by many factors, not simply the movement of exchange rates" and that "[n]ormally, large multinational companies like DSM try to minimize the risk associated
A second reason for a remand is the Department's justifying the use of DSM's 2008 financial statement on an incorrect premise: that the Department has a consistent practice of using the single financial statement corresponding to the largest portion the POR. As observed in a case involving the previous (fourteenth) administrative review of this order, Union Steel v. United States, 35 CIT ___, ___, 755 F.Supp.2d 1304, 1311 (2011), "the so-called `practice' is subject to exceptions" and "[w]hat Commerce describes as its practice is at most a preference for using the financial statement most closely corresponding to the POR, a preference that Commerce does not observe when it finds sufficient reason to use a different financial statement or statements." The court is unable to agree with the statement in the Decision Memorandum that this "practice" has been consistently followed. Decision Mem. 43.
In the fourteenth administrative review of the order on Korean CORE, for which the period of review was August 1, 2006 through July 31, 2007, Commerce also determined it appropriate to calculate Union's G & A and interest expense ratios using the financial statements corresponding with the final seven months of the POR, i.e., the 2007 statements. Upon judicial review, this Court upheld the Department's determination. Union Steel, 35 CIT at ___, 755 F.Supp.2d at 1309. Union made several arguments in that case that it also makes here: that Commerce should choose the earlier financial statements based on the greater correspondence with the home-market reporting period (the period of review as expanded by the 90/60-day window period) rather than the period of review, that Commerce should not use data affected by events occurring after the close of the period of review, including a 2007 year-end adjustment for foreign currency transaction gains and losses that Union argued it could not possibly factor into its home-market pricing, and that Commerce, if not using only the earlier (2006) statements, should calculate the ratios by combining data from the financial statements for both fiscal years. Id. at ___, 755 F.Supp.2d at 1309-12. Rejecting Union's arguments, the court concluded, first, that the choice of the 2007 statements over the 2006 statements based on a greater correspondence with the period of review was permissible on the record in that case and that the other approach Union advocated, the use of a combination of statements for both fiscal years, did not offer, on that record, clear advantages over use of financial statements for the single fiscal year most closely corresponding to the period of review such that Commerce's approach must be found unreasonable. Id. at ___, 755 F.Supp.2d at 1312. Unpersuaded by Union's argument that Union could not factor year-end currency transaction gains and losses into its prices during the period of review, this Court reasoned that "[a]lthough Union may have a legitimate interest in being able to predict how Commerce will apply the Tariff Act to its sales and set prices accordingly, that interest, in the entire circumstances of this case, is not sufficient to compel Commerce to use the 2006 financial statements." Id. at ___, 755 F.Supp.2d at 1310. The record in this case differs markedly from that upon which the Department's choice in the fourteenth review was upheld. Here, the interest cost ratio derived from the 2008 financial statement of DSM reflects a five-fold increase from the interest cost ratio derived from the 2007 statement and appears
In summary, Commerce must reconsider its decision to base Union's interest expense ratio entirely on data obtained from DSM's 2008 financial statement. In doing so, Commerce must consider the relative merits of alternate methods of determining the interest expense ratio in the interest of obtaining the most accurate dumping margin and also must give adequate consideration to Union's objection that, due to post-POR depreciation of the Korean won, the interest cost ratio obtained solely from those data was not representative of the actual interest expense that Union incurred during the POR.
The court does not identify with respect to the G & A expense ratio, also challenged by Union, the same legal infirmities it identified with respect to the interest ratio. Because the Decision Memorandum jointly addresses the two issues, and because Commerce must reconsider its decision on the interest expense issue, the court defers any ruling on whether or not the G & A expense ratio as determined in the Final Results is in accordance with law. Commerce may reconsider its determination of the G & A expense ratio in its remand redetermination.
The court does not find merit in arguments U.S. Steel advances in opposition to a remand on the interest expense issue. U.S. Steel argues, first, that the record does not show that the 2008 financial crisis was "responsible for either the decline in the value of the won or Union's increased foreign exchange losses." Mem. in Opp'n to Pls.' Mots. for J. on the Agency R. filed by Def.-Intervenor United States Steel Corp. 12 (Feb. 11, 2011), ECF No. 105 ("U.S. Steel's Opp'n"). The Department, however, did not reach a finding that the interest expense data in DSM's 2008 financial statement were unaffected by the steep decline in the exchange rate of the Korean won occurring after the close of the POR. The record contains evidence of a steep post-POR decline in the value of the won and evidence of DSM's large foreign exchange losses in late 2008; whether the global financial crisis was at the root of the won depreciation and DSM's post-POR exchange losses during that time period is a tangential question.
U.S. Steel next argues that Commerce correctly rejected Union's argument because factors other than unpredictable currency fluctuations — such as DSM's substantial increases in sales and costs of goods sold from 2007 to 2008 — affected DSM's foreign currency transaction and translation losses. Id. at 13. Nucor makes a similar argument. Resp. Br. of Nucor Corp. 47 (Feb. 11, 2011), ECF No. 92 ("Nucor's Resp."). As discussed above, however, the record shows that the foreign-currency-related losses were the most important factor affecting the Department's calculation of DSM's 2008 net financial expenses, with all other financial expense categories accounting for only 12% of DSM's 2008 net financial expenses. COP Analysis Mem. attachment 3.
U.S. Steel points to evidence in DSM's financial statement that DSM had far greater liability for notes payable in foreign currencies during 2008 than in 2007. U.S. Steel's Opp'n 13-14 (citing DSM's Financial Statement 55). This argument does not address the shortcomings in the Department's decision, which offered blanket adherence to a claimed practice to support the choice of using only the 2008 DSM statement and lacked adequate reasoning as to why that choice was superior to the alternatives on the record.
U.S. Steel argues, further, that "there is not a shred of evidence to suggest that the activities giving rise to the increased transaction
U.S. Steel also takes issue with Union's calling the foreign currency transaction and translation losses "extraordinary," arguing that such losses are common to all businesses and were not treated as exceptional on DSM's financial statement. Id. at 14 (citing Union's Br. 11). As the court has observed, the record contained evidence of DSM's substantial foreign currency exchange losses in 2008 relative to 2007 and evidence of the steep post-POR decline in the value of the Korean won. Commerce did not find that the losses in question, however characterized in DSM's financial statement, were typical for DSM.
Finally, U.S. Steel argues that Union's engaging in currency hedging contracts shows that Union anticipated the late-2008 currency fluctuations and modified its pricing to adjust for anticipated losses. Id. at 15. The record shows that Union engaged in one "currency swap" on June 18, 2008 and another on July 9, 2008, each in the amount of $3,000 (U.S.). DSM's Financial Statement 45. If these currency swaps suggest anything as to whether Union anticipated the decline of the Korean won, it is that Union was caught unaware: had Union anticipated that decline, presumably it would have hedged more aggressively. Nor do these contracts suggest anything about Union's pricing activity.
Defendant-intervenor Nucor also defends the Department's determination. Nucor argues that financial expenses are "period costs ... accrued in year-end adjustments" and that "[c]ompanies project these types of expenses, and can make pricing decisions based on those projections, throughout the year." Nucor's Resp. 46. This argument does not address the question of whether Commerce permissibly used the 2008 DSM financial statement, and only that statement, to calculate the interest expense ratio despite the post-POR depreciation of the won that appeared to affect the interest expense data shown therein. Nucor also argues that Union is incorrect that "the aberrational foreign currency exchange and translation losses were incurred after the POR" because "there was a fairly steady decline in the value of the Korean won through 2008." Id. at 47. Nucor's argument mischaracterizes the record evidence. Although some depreciation of the won took place from January through July 2008, the record shows that depreciation was far more pronounced in the remaining five months of 2008. Union's Rebuttal Br. exhibit 2 (showing a decline of approximately 7.5% against the U.S. dollar from January 1, 2008 through July 31, 2008 and a decline of 26% from July 31, 2008 through December 31, 2008); id. exhibit 3 (showing a decline of approximately 11% against the Japanese yen from January 2 through July 31, 2008 and a decline of 49% from July 31, 2008 through December 31, 2008).
As discussed previously, section 773(b) of the Tariff Act allows Commerce, in certain
Id. § 1677b(b)(2)(D). Union and HYSCO claim that Commerce failed to determine weighted-average per-unit costs of production of individual foreign like products using the one-year POR as the averaging period and, therefore, did not comply with the recovery-of-costs test imposed by this provision. More broadly, both plaintiffs claim that the Department's calculating an element of COP, manufacturing costs, using less than period-wide average costs (a methodology to which the parties refer as the "quarterly-cost methodology") violated section 773(f)(1)(A) of the Tariff Act, 19 U.S.C. § 1677b(f)(1)(A). Under this provision, "[c]osts shall normally be calculated based on the records of the exporter or producer of the merchandise, if such records... reasonably reflect the costs associated with the production and sale of the merchandise." Union's Br. 15-34; Mem. in Supp. of the Mot. of Pl. Hyundai HYSCO for J. on the Agency R. 7-33 (Sept. 10, 2010), ECF No. 64 ("HYSCO's Mem.").
In the fifteenth review, Commerce calculated COP using four quarterly weighted-average cost calculations. Decision Mem. 21. In so doing, Commerce did not effectuate the recovery-of-costs test and the below-cost test according to its usual method, under which it determines per-unit weighted-average costs by using the POR as the averaging period. In addition to determining costs on a quarterly basis, the methodology Commerce used in the fifteenth review applied a multi-step "indexing" method to the respondents' data on the cost of steel coil substrate, a significant input in the production of CORE. Union's Post-Prelim. Analysis Mem. 3-5; Decision Mem. 24. As described in the Decision Memorandum, "the Department indexed the quarterly material costs to a common period cost level, thereby neutralizing the effect of the significant cost changes for the input between quarters." Decision Mem. 23. Next, Commerce "calculated a period of review weighted-average per unit cost," and "[f]inally, the weighted-average per unit cost for the period of review for the substrate input was indexed back to the appropriate quarter to keep the weighted-average per unit costs consistent with the main input's significantly changing price levels occurring between quarters." Id.
The Department grounded its decision to use an indexed quarterly-cost methodology in part on its findings that, for Union and HYSCO, there were significant changes — exceeding 25% — in the quarterly average cost of manufacture of the five most-frequently sold products (each identified by an individual "Control Number," or "CONNUM") in the U.S. and home markets during the POR. Id. at 17 ("A change in costs that exceeds 25 percent, even if it was only between two quarters of the POR, is significant enough to create distortion when using a single annual average cost methodology."). Commerce also
In describing the change from the Department's normal methodology, the Decision Memorandum states that "the Department usually compares a respondent's sales prices against a single weighted-average cost of production for the period of review to determine whether sales were made at less than costs of production and whether the sales prices permit recovery of all costs within a reasonable period of time." Id. at 21. It concludes, however, that departure from the normal methodology is warranted "where, as here, cost and price averages calculated over the entire period do not permit proper comparison." Id. Commerce reasoned that
Id. at 23.
Defendant requests a voluntary remand on the Department's using the quarterly-cost methodology to satisfy the recovery-of-costs test of 19 U.S.C. § 1677b(b)(2). Def.'s June Remand Mot. Defendant cites a decision of this Court, SeAH Steel Corp. v. United States, 35 CIT ___, ___, 764 F.Supp.2d 1322, 1331-35 (2011), which disallowed the Department's applying an indexed quarterly-cost-based methodology to determine which home-market sales did not satisfy the recovery-of-costs test. Def.'s June Remand Mot. 3 (informing the court that "Commerce wishes to reconsider its cost-recovery methodology as applied to Union Steel and HYSCO in light of the Court's decision in SeAH, and potentially apply the reasoning in SeAH to the facts of this record"). In SeAH, this Court concluded that the Department's indexed quarterly methodology as applied in that case "violates the plain language of the cost recovery statute" and directed Commerce, on remand, to conduct the cost-recovery analysis using the unindexed weighted-average per-unit cost of production for the entire period of review. SeAH, 35 CIT at ___, 764 F.Supp.2d at 1331.
As mentioned earlier, the Decision Memorandum discloses that Commerce applied its indexed quarterly-cost methodology in conducting both the below-cost test and the recovery-of-costs test. Decision Mem. 21. The Decision Memorandum refers generally to the use of a single methodology in performing both those tests as well as constructed value ("CV") determinations
Union and HYSCO challenged the use of the indexed quarterly-cost methodology generally and thereby did not limit their challenges to the Department's use of this methodology to conduct the recovery-of-costs test. Defendant's remand request refers to the recovery-of-costs test and to indexing wherever used but does not specifically request a remand on the use of the quarterly methodology (as opposed to the use of indexing) for the other purposes, i.e., the below-cost test, CV, and DIFMER. The court concludes that it is appropriate to order a remand so that the Department will reconsider the indexed quarterly-cost methodology wherever it was used in the Final Results.
The Department's discussion in the Decision Memorandum of the reasons supporting use of an indexed quarterly-cost methodology in the Final Results refers to all four applications, i.e., the below-cost test, the recovery-of-costs test, CV, and DIFMER. See id. The document does not present reasons why different averaging periods or cost methodologies would be appropriate for each of those four applications. To the contrary, with respect to identifying below-cost sales and determining which sales satisfy the recovery-of-costs test, Commerce stated that it considered the use of the methodology for both purposes to be necessary "to address significant variations in the cost of a major input that dramatically changed the per-unit cost of manufacturing during the period of review" and thereby prevent distortions. Id. at 22 ("If we were to adjust for the distortion in performing the below-cost test, but fail to adjust for the distortion in performing the recovery of costs test, it would lead to similarly distorted results."). Moreover, the Decision Memorandum, as
In summary, the Decision Memorandum mentioned all four applications of the quarterly-cost methodology in a unified context and did not present reasons why the Department would consider addressing the four applications inconsistently. As defendant clarified at oral argument, the Department seeks a remand order permitting reconsideration of the indexing methodology for steel coil substrate wherever that methodology is used. The Decision Memorandum itself justifies the indexing methodology as a corollary of the quarterly-cost methodology. A piecemeal remand order that confines the required reconsideration of the quarterly-cost methodology to the recovery-of-costs test would appear to be inconsistent with the scope of the remand order sought on the indexing methodology and also be inconsistent with the overall approach taken in the Decision Memorandum. Therefore, the court considers it prudent to direct that Commerce, on remand, reconsider its use of the quarterly-cost methodology, as well as the use of the indexing methodology for steel coil substrate, wherever those methodologies were used in the Final Results. If, on remand, the Department determines it appropriate to apply inconsistent approaches, it should explain its reasons for doing so.
Consistent with its ordinary practice, Commerce in the Final Results compared the export price or constructed export price in an individual sales transaction of subject merchandise to a weighted average of the normal values for a single month determined to be contemporaneous with that individual transaction (the "contemporaneous month"). Decision Mem. 19-20; see 19 C.F.R. § 351.414(b)(3) (setting forth the "average-to-transaction" method), (e) (limiting the averaging of normal values to the contemporaneous month). Commerce departed from its normal method, however, in determining the contemporaneous month. A Department regulation provides that "[n]ormally, the Secretary [of Commerce] will select as the contemporaneous month the first of the following which applies," listing first the calendar month during which the U.S. sale was made so long as a sale of the foreign like product was made during that month, then the "most recent of the three months prior to the month of the U.S. sale in which there was a sale of the foreign like product," and, finally, "the earlier of the two months following the month of the U.S. sale in which there was a sale of the foreign like product." 19 C.F.R. § 351.414(e)(2). The regulation is often identified as the "90/60-day window period" regulation. Union and HYSCO challenge the Department's deviating from the usual method as reflected in the regulation.
In the Final Results, Commerce did not apply the "normal" method of the 90/60-day window period regulation, concluding that it was not appropriate to compare
Commerce stated in the Decision Memorandum that "when applying the alternative cost averaging methodology due to significantly changing costs, the Department has in the past eliminated the `90/60' day window period.... That is, the sales `contemporaneity' period was modified to conform with the shortened cost averaging period." Decision Mem. 20. Commerce explained that "as costs are calculated over shorter periods, it directly limits the periods of time over which sale prices can reasonably be matched," id. at 15, and that "[w]hen significant cost changes have occurred during the POR ... we find that price-to-price comparisons should be made within the shorter cost averaging period to lessen the margin distortions caused by changes in sales price which result from significantly changing costs," id. at 20. Thus, the Department's decision to use a non-standard method of determining the contemporaneous month was solely a consequence of the decision to apply a non-standard quarterly-cost methodology. Commerce itself now questions aspects of the quarterly-cost methodology as applied in the fifteenth review. Because the court is ordering reconsideration of the quarterly-cost methodology as used in the Final Results, the court also will order Commerce to reconsider its associated decision to depart from the normal method of determining the contemporaneous month that is described in 19 C.F.R. § 351.414(e)(2).
The antidumping statute directs in § 1677(16)(A) that Commerce, in determining the foreign like product, first seek to compare a U.S. sale of subject merchandise with a comparison-market sale of merchandise "which is identical in physical characteristics with, and was produced in the same country by the same person as, that merchandise." 19 U.S.C. § 1677(16)(A). If no such comparison can be satisfactorily made, Commerce, in accordance with § 1677(16)(B), seeks to match the subject merchandise with merchandise produced in the same country, produced by the same person, that is "like that merchandise in component material or materials and in the purposes for which used," and "approximately equal in commercial value to that merchandise." Id. § 1677(16)(B). If the latter comparison cannot be satisfactorily made under § 1677(16)(B), Commerce is to seek to match the subject merchandise under § 1677(16)(C) with merchandise produced in the same country and by the same person that is "of the same general class or kind as the subject merchandise ... like that merchandise in the purposes for which used ... [and] may reasonably be
In the fifteenth review, as it had in previous reviews of the order on CORE from Korea, Commerce determined that Union's laminated CORE was "identical in physical characteristics with" painted, non-laminated CORE for purposes of § 1677(16)(A). Decision Mem. 28-30. In doing so, Commerce rejected the proposal Union made during the fifteenth review that Commerce treat laminated CORE as a separate type category of products for model-match purposes. Id. Union challenges the Department's decision, arguing that there are obvious physical differences separating its laminated CORE from painted CORE and that, as a result, substantial evidence on the record does not support a finding that these two groups of products are "identical." Union's Br. 35-39. In its response to Union's USCIT Rule 56.2 motion, defendant requests a voluntary remand so that Commerce may reconsider its decision on the model-match issue. Def.'s Resp. 46-49. In their responses to Union's motion, defendant-intervenors argue that Commerce properly compared laminated CORE with painted, non-laminated CORE as identical merchandise. Nucor's Resp. 49-57; U.S. Steel's Opp'n 58-60.
In requesting a voluntary remand, defendant cites Union Steel v. United States, 35 CIT ___, 753 F.Supp.2d 1317 (2011), in which this Court, reviewing the final results of the thirteenth review of the order on CORE from Korea, disallowed the comparison for model-match purposes of Union's painted, non-laminated CORE with Union's laminated CORE as products "identical in physical characteristics" within the meaning of § 1677(16). This Court held it unlawful for Commerce to compare the two groups of products as identical merchandise absent a finding, supported by substantial evidence (held not to exist on the record in that case), that the physical differences between the two product groups are minor and not commercially significant. Union Steel, 35 CIT at ___, 753 F.Supp.2d at 1322-23. The Department's remand redetermination in that case was filed subsequent to the February 11, 2011 date of defendant's request for a voluntary remand on the model-match issue in this litigation. In that remand redetermination, the Department concluded that record evidence in the thirteenth administrative review supported revising the physical characteristics classifications of the Department's model-match methodology to create a separate type category for laminated CORE products. Final Results of Redetermination Pursuant to Remand (Apr. 11, 2011), ECF No. 143 (Court No. 08-00101). Commerce reached the same conclusion in litigation contesting the final results of the fourteenth administrative review. Final Results of Redetermination Pursuant to Remand (July 15, 2011), ECF No. 115 (Court No. 09-00130).
The court will order that Commerce, on remand, reconsider its decision denying Union's request for a change in the model-match methodology. Consistent with the holding in Union Steel, 35 CIT at ___, 753 F.Supp.2d at 1322, Commerce on remand may not compare as identical merchandise Union's sales of the painted and non-laminated CORE with Union's sales of laminated CORE absent a finding, supported by substantial evidence on the record, that the physical differences distinguishing the two product groups are minor and not commercially significant.
Commerce applied its "zeroing" methodology to calculate Union's weighted-average dumping margin in the fifteenth review. Applying this methodology, Commerce determined a dumping margin
Referring to the fact that the Department does not currently use the zeroing methodology for investigations of sales at less than fair value, Union argues that the use of the zeroing methodology in the fifteenth review signifies that the Department unlawfully "interprets the exact same statutory language," i.e., the statutory provision defining "dumping margin," 19 U.S.C. § 1677(35)(A), "to mean different things in reviews and investigations, which is contrary to basic rules of statutory construction." Union's Br. 39. Although initially defending the Department's use of zeroing in its response, Def.'s Resp. 49-52, and continuing to maintain that controlling precedent allows zeroing in administrative reviews, Def.'s Aug. Remand Mot. 3, defendant now requests a voluntary remand on the zeroing issue "in light of the apparent uncertainty caused by JTEKT, and in the interest of judicial economy and prompt resolution of this litigation," Def.'s Aug. Remand Mot. 3 (citing JTEKT Corp. v. United States, 642 F.3d 1378, 1383-85 (Fed.Cir.2011)).
In two 2011 decisions, JTEKT Corp. and Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed.Cir.2011), the U.S. Court of Appeals for the Federal Circuit ("Court of Appeals") questioned the legality of the Department's construction of 19 U.S.C. § 1677(35) and declined to affirm the judgments of the Court of International Trade upholding the use of zeroing. See Dongbu, 635 F.3d at 1371-73; JTEKT Corp., 642 F.3d at 1383-85. In each decision, the Court of Appeals held that the final results of an administrative review in which zeroing was used must be remanded for an explanation by Commerce explaining the Department's interpreting the language of § 1677(35) inconsistently with respect to the use of zeroing in investigations and the use of zeroing in administrative reviews. Following the decisions of the Court of Appeals in JTEKT Corp. and Dongbu, remands to the Department for such an explanation have been ordered in previous cases before this Court. See, e.g., SKF USA Inc. v. United States, 35 CIT ___, ___, 800 F.Supp.2d 1316, 1325 (2011); SKF USA Inc. v. United States, 35 CIT ___, ___, Slip Op. 11-94, at 10-13, 2011 WL 3320637 (Aug. 2, 2011); JTEKT Corp. v. United States, 35 CIT ___, ___, 780 F.Supp.2d 1357, 1362-63 (2011); Union Steel v. United States, 35 CIT ___, ___, 804 F.Supp.2d 1356, 1367-69 (2011); see also Union Steel v. United States, 35 CIT ___, 823 F.Supp.2d 1346 (2012) (affirming remand results that contained a more recent construction of the antidumping statute under which Commerce concluded that the zeroing methodology is permissibly applied in an antidumping administrative review).
As defendant acknowledges, the Decision Memorandum explains the Department's construction of § 1677(35) as applied to investigations and reviews using a rationale essentially the same as the one the Court of Appeals rejected in JTEKT Corp. Decision Mem. 4-6; Def.'s Aug. Remand Mot. 3 ("Commerce's explanation for applying zeroing in the administrative review before the Court here mirrors that in the determination remanded by the court of appeals in JTEKT."). The Decision Memorandum provides a list of differences
The Final Results assign individual weighted-average dumping margins to Union, HYSCO, and the POSCO Group. Final Results, 75 Fed.Reg. at 13,491. The POSCO Group received a de minimis margin (0.01%). Id. As discussed previously, the Final Results assigned the remaining three respondents, including plaintiff Dongbu, a "Review-Specific Average Rate" of 8.65%, calculated as a simple average of the margins assigned to Union (14.01%) and HYSCO (3.29%). Id. Dongbu claims that the Department's decision not to assign it an individually-determined dumping margin was not authorized by section 777A of the Tariff Act, 19 U.S.C. § 1677f-1(c), and seeks a remand order compelling the Department to examine its sales individually. Br. in Supp. of the Mot. of Dongbu Steel for J. upon the Agency R. 8-14 (Sept. 10, 2010), ECF No. 66 ("Dongbu's Br."). The court denies relief on this claim because Dongbu did not pursue an individually-determined margin as a voluntary respondent and thereby failed to exhaust its administrative remedies.
On October 2, 2008, two days after initiating the review, Commerce issued a memorandum
In response to the Department's October 2, 2008 memorandum, Dongbu advocated its own selection as a mandatory respondent in a submission filed October 21, 2008. Dongbu's Respondent Selection Comments. Dongbu argued that the Department should examine at least the four producers with the largest volume of exports of subject merchandise. Id. at 2. It pointed out that Commerce had examined four companies — Dongbu, Union, the POSCO Group, and HYSCO — in the tenth, eleventh, twelve and fourteenth administrative reviews of the order and initially had selected these same four respondents for individual examination in the thirteenth review, ultimately reviewing three because one request for review was withdrawn. Id. at 2-3.
Referring to the seven exporters/producers for which it initiated the review, Commerce stated in the Respondent Selection Memorandum that "it would not be practicable ... to examine individually all exporters/producers of subject merchandise for whom a review has been initiated." Respondent Selection Mem. 6. Citing its resource constraints, Commerce further stated that "we believe it is practicable to limit examination to two of these companies." Id. Commerce selected Union and HYSCO because these two companies, during the POR, were the largest two producers/exporters and were "responsible for the majority of the imports of subject merchandise into the United States." Id.
In its case brief before the Department, Dongbu did not challenge the Department's decision not to examine it individually. In its complaint before the court, Dongbu claimed that "Commerce's determination not to individually examine and calculate a company-specific dumping margin for Dongbu is not supported by substantial evidence and is otherwise not in accordance with law." Compl. ¶ 9 (Mar. 30, 2010), ECF No. 2 (Court No. 10-00109) ("Dongbu's Compl."). As relief on this claim, Dongbu requested "that the Court remand this matter to Commerce to calculate a company-specific dumping margin for Dongbu based on Dongbu's own data." Id. Prayer for Relief.
The court denies relief on Dongbu's claim seeking an individually-determined margin because Dongbu failed to exhaust its administrative remedies and because no recognized exception to the exhaustion requirement applies on the facts of this case. Section 301 of the Customs Courts Act provides with respect to cases brought under section 516A of the Tariff Act that "the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies." 28 U.S.C. § 2637(d). In several prior cases involving claims challenging the Department's refusal to determine individual margins, this Court has required that the claimant have exhausted administrative remedies by pursuing "voluntary respondent" status under section 782 of the Tariff Act. Schaeffler Italia S.r.l. v. United States, 35 CIT
Paragraph (1) of subsection 777A(c) of the Tariff Act requires that Commerce, as a general rule, "shall determine the individual weighted average dumping margin for each known exporter and producer of the subject merchandise." 19 U.S.C. § 1677f-1(c)(1). An exception to this rule is contained in paragraph (2) of subsection (c):
Id. § 1677f-1(c). In support of its motion for judgment on the agency record, Dongbu argues that the Department unlawfully determined seven respondents to be a "large number of respondents" within the meaning of § 1677f-1(c)(2) and that, as a result, Commerce acted without authority in limiting respondents. Dongbu's Br. 10.
A respondent not selected for individual examination under section 777A potentially can receive an individual margin according to section 782(a) of the Tariff Act, which provides that Commerce, upon limiting the number of respondents according to section 777A, "shall establish an ... individual weighted average dumping margin for any exporter or producer not initially selected for individual examination" if two conditions are met. 19 U.S.C. § 1677m(a); see 19 C.F.R. § 351.204(d). First, an exporter
Dongbu addresses several arguments to the exhaustion question presented by this case. It argues, first, that "applying a strict interpretation of the exhaustion requirement" would further neither of the "twin purposes of exhaustion," which Dongbu identifies as "protecting administrative authority and promoting judicial efficiency." Dongbu's Reply 5 (internal quotations omitted). Dongbu argues that requiring exhaustion "will not protect Commerce's agency authority. To the contrary, declining to address the merits will permit Commerce to exceed its lawful agency authority...." Id. The court must reject this circular argument. Were the court to waive exhaustion on the premise that the claim is meritorious, the exhaustion requirement would be rendered meaningless.
As to the second purpose for the exhaustion requirement posited by Dongbu, judicial efficiency, Dongbu argues that requiring exhaustion will not promote judicial efficiency because "[h]ad Dongbu raised this issue more precisely in its comments or in a case brief, it would not have obviated the need for judicial review." Id. at 6. This is essentially an indirect way of arguing that the court should excuse Dongbu's failure to seek voluntary respondent status on the ground that objecting to the Department's respondent selection decision, as stated in the Respondent Selection Memorandum, would have been futile, an argument that Dongbu also raises directly. But the futility exception is not warranted on the record before the court. The Respondent Selection Memorandum did not foreclose entirely the prospect that the Department would revisit the issue of whether resources would be available should voluntary respondent status be sought, citing specifically the voluntary respondent provision of the statute and stating that "[i]f there is a change in circumstances at the Department, and if there is a voluntary submission of the requested information that complies with all other deadlines and requirements for filing, we may re-examine this matter." Respondent Selection Mem. 7 (citing 19 U.S.C. § 1677m(a)). The Respondent Selection Memorandum did cast serious doubt on whether Commerce would accept voluntary respondents, but the mere fact that relief was unlikely is insufficient as a ground to waive the exhaustion requirement. The futility exception to the exhaustion requirement is a narrow one, requiring parties to demonstrate that they "`would be required to go through obviously useless motions in order to preserve their rights.'" Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed.Cir.2007) (quoting Bendure v. United States, 554 F.2d 427, 431 (Ct.Cl.1977)). Although Dongbu's chance of receiving voluntary respondent status may have appeared doubtful at the time Commerce issued the Respondent Selection Memorandum, the memorandum, when read as a whole, did not state as a certainty that voluntary respondent status would be unavailable.
Dongbu also argues that its argument satisfies the factors of the "pure legal question" exception to the exhaustion requirement, which Dongbu characterizes as follows: (1) the new argument raised must be "purely legal in nature"; (2) the inquiry to resolve that argument may not require "further agency involvement nor additional fact finding or opening up the record;" and "the inquiry shall neither create undue delay nor cause expenditure of scare party time and resources." Dongbu's Reply 7. Submitting that each factor is satisfied, Dongbu argues that its claim presents the purely legal issue of "whether Commerce's implicit construction of 19 U.S.C. § 1677f-1(c)(2) such that any number of exporters/producers larger than two was a `large number of exporters or producers' with the meaning of that term in the statute is in accordance with law." Id. at 8. The court disagrees with Dongbu's characterizing the claim as presenting only the pure legal question of the Department's construction of § 1677f-1(c)(2). Dongbu's claim, in essence, is that the Final Results were contrary to law because Commerce did not determine therein an individual margin for Dongbu. See Dongbu's Compl. ¶ 9 (challenging "Commerce's determination not to individually examine and calculate a company-specific dumping margin for Dongbu ..."). Commerce may or may not have misconstrued § 1677f-1(c)(2) in issuing the Respondent Selection Memorandum, but, on the record facts of this case, Dongbu still could have pursued a remedy after that memorandum was issued. Commerce made a final decision not to determine an individual margin for Dongbu upon issuance of the Final Results, prior to which Dongbu never gave the Department the opportunity to rule on the issue of whether Dongbu should be assigned an individual margin as a voluntary respondent. Resolving that issue would have involved more than the pure legal question of the construction of § 1677f-1(c)(2). See 19 U.S.C. § 1677m(a)(2) (requiring a factual determination on whether examination of voluntary respondents would be unduly burdensome and inhibit timely completion).
For sales by HYSCO through its U.S. affiliate, Hyundai HYSCO USA, Inc. ("HYSCO USA"), Commerce used as the date of the sale the date the subject merchandise was shipped from Korea to HYSCO USA, rather than the later date on which HYSCO USA issued an invoice to an unaffiliated purchaser. Decision Mem. 30. U.S. Steel claims that this decision violated the Department's regulations and was unsupported by record evidence. Mem. in Supp. of Consolidated Pl. United States Steel Corp.'s Mot. for J. on the Agency R. Under Rule 56.2, at 10-20 (Sept. 10, 2010), ECF No. 62 ("U.S. Steel's Mem."). Defendant requests a voluntary remand on this issue. Def.'s Resp. 59-60. The court will order a remand.
According to HYSCO's questionnaire responses, HYSCO sold subject merchandise during the POR to HYSCO USA, which sold that merchandise to unaffiliated customers. Letter from HYSCO to the Sec'y of Commerce A-1 (Feb. 12, 2009) (Admin.R.Doc. No. 4850) ("HYSCO's Section A Resp."). For such sales, HYSCO shipped the merchandise to the United States with HYSCO USA serving as the importer of record and taking title to the merchandise, but not taking physical possession. Id. at A-22. When the merchandise arrived, HYSCO USA issued an invoice to the ultimate customer. Id. HYSCO explained that HYSCO USA's "[n]egotiations with customers can continue through the entire sales process," and that, for U.S. sales, the quantity term is subject to change "until the merchandise is shipped from HYSCO's factory, and price can change up until [HYSCO USA] issues its invoice to the unaffiliated U.S. customer." Id. at A-23-24.
For the Preliminary Results, Commerce determined the dates of sale for HYSCO's U.S. sales using the dates that HYSCO USA shipped the subject merchandise. U.S. Steel's Mem. 6. U.S. Steel challenged that decision in its case brief before Commerce, arguing that the date of sale should have been the date that HYSCO USA issued an invoice to the unaffiliated U.S. customer because it was not until that date that the price, one of the material terms of sale, was final. Decision Mem. 30. Commerce rejected this argument in the Decision Memorandum, reasoning that its regulations allow it to use a date of sale other than the date of invoice when such other date "better reflects the date on which the exporter or producer establishes the material terms of sale," see 19 C.F.R. § 351.401(i),
Defendant having requested a voluntary remand as to the challenged decision, the court will order Commerce to reconsider its determination of the date of sale for HYSCO's U.S. sales made through HYSCO USA.
As discussed previously, Commerce assigned to Dongbu a margin of 8.65% as "a simple average percentage margin (based on the two reviewed companies with an affirmative deposit rate)...." Final Results, 75 Fed.Reg. at 13,491 n. 2. Dongbu seeks the benefit of any modifications to the margins assigned on remand to the two individually-examined respondents, Union (which received a 14.01% margin in the Final Results) and HYSCO (3.29% in the Final Results), that may result from this litigation. Dongbu's Br. 14-15 (in which Dongbu "requests that any relief granted by the Court and resulting adjustments to the individual weighted average dumping margins for Union and HYSCO be incorporated into the revised review specific average and be applied to Dongbu"). The court determines that any changes made on remand to the margins assigned to Union and HYSCO should be reflected in any assessment and deposit rate applied to Dongbu.
In the Preliminary Results, Commerce preliminarily assigned to Dongbu a "Review-Specific Average Rate" of 3.94%, which was "based on the margins calculated for those companies that were selected for individual review, excluding de minimis margins or margins based entirely on adverse facts available." Prelim. Results, 74 Fed.Reg. at 46,114, 46,114 n. 8. This preliminary rate was based only on the rate of Union because the other two selected respondents received preliminary de minimis margins in the Preliminary Results. Id. at 46,114. Dongbu did not file a case brief before Commerce challenging this or any other Commerce decision.
In the Final Results, Commerce applied to Dongbu a rate of 8.65%. Final Results, 75 Fed.Reg. at 13,491. This rate was a simple average of the rates of Union (14.01%) and HYSCO (3.29%). Id. at 13,491. In its complaint, Dongbu challenged the 8.65% margin applied to Union, claiming that this margin was "overstated" for eight reasons: (1) the Department's application of the quarterly-cost methodology; (2) the Department's abandoning the 90/60-day window period regulation; (3) the Department's using 2008 fiscal year financial statements to calculate Union's G & A and interest expenses; (4) the Department's model-match methodology as it pertained to laminated and non-laminated, painted CORE; (5) the Department's zeroing methodology; (6) "Commerce's decision to include Union's overrun sales in the calculation of normal value"; (7) "Commerce's decision to make an adjustment to HYSCO's cost-of-production under the major input rule"; and (8) "Commerce's decision to treat HYSCO's interest revenue... as a post-sale price adjustment instead of as a selling expense...." Dongbu's Compl. ¶ 7.
Dongbu narrowed this challenge in its memorandum in support of its motion for judgment on the agency record, stating that its challenge was based on "the reasons discussed in the briefs concurrently filed by Union Steel and HYSCO" and that it sought as relief on this claim an order
Based on the five reasons listed in Dongbu's complaint, the court determines that Dongbu potentially is entitled to the requested relief. The margin the Final Results applied to Dongbu was derived from the margins of the selected respondents and bore no connection to Dongbu's POR sales. The court considers it appropriate that any changes to the margins of the selected respondents be reflected in the derivative margin applied to Dongbu. The court notes, however, that the Department's recalculation of the rate applicable to Dongbu also must incorporate any modifications to the rate applied to HYSCO as a result of U.S. Steel's claim, discussed above. If Dongbu is to receive the benefit of any reductions in the weighted-average dumping margins of Union or HYSCO, as a matter of consistency it also should be affected by increases in those margins.
Defendant and defendant-intervenor U.S. Steel do not address Dongbu's claim in their responses. Defendant-intervenor Nucor argued that Dongbu failed to exhaust administrative remedies on this claim because Dongbu failed to raise it "in any case or rebuttal brief to the Department," Nucor's Resp. 11 n. 2, but Nucor abandoned this position at oral argument, Oral Tr. 88.
In conclusion, the court determines that remand is required in response to several claims brought in this consolidated action. Relief is appropriate on the challenge to the decision to use only the 2008 fiscal year financial statement of DSM to determine Union's interest expense ratio, the decision to use the quarterly-cost methodology and cost indexing for the recovery-of-costs test, the below-cost test, and the other applications in the Final Results, the decision not to determine the comparison months using the normal 90/60-day window period prescribed by regulation, the decision to compare laminated CORE to non-laminated, painted CORE as identical products, the decision to use the zeroing methodology in this administrative review, and the determination of the date of sale for sales by HYSCO through HYSCO USA. No relief is appropriate on Dongbu's challenge to the Department's declining to determine an individual margin for Dongbu. Finally, the assessment and deposit rates applied to Dongbu, which were derived from the individual margins of Union and HYSCO, must reflect any adjustments
19 U.S.C. § 1677b(b)(1) (2006).
Pl. Union Steel's Reply Br. 4 n. 3 (Apr. 4, 2011), ECF No. 121.
19 U.S.C. § 1677b(e).
Issues & Decision Mem., A-580-816, ARP 07-08, at 5 (Mar. 15, 2010) (Admin.R.Doc. No. 5249).
19 C.F.R. § 351.401(i) (2010).
Oral Tr. 88.
