TSOUCALAS, Senior Judge.
This matter is before the Court on a Motion for Judgment On the Agency Record brought by Plaintiff, Sahaviriya Steel Industries ("SSI"), pursuant to Rule 56.2 of the Rules of the United States Court of International Trade ("USCIT").
Plaintiff challenges certain aspects of the U.S. Department of Commerce's ("Commerce's" or "Department's") final results with respect to the changed circumstances review of the antidumping duty order in Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Antidumping Duty Changed Circumstances Review and Reinstatement in the Antidumping Duty Order, 74 Fed. Reg. 22,885 (May 15, 2009) Public Rec. Doc. No. 1180 ("Final Results").
The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a)(2) (2006) and 28 U.S.C. § 1581(c) (2006).
When reviewing the final results in an antidumping changed circumstances review "[t]he court shall hold unlawful any determination, finding, or conclusion found. . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C.
When the Court examines the lawfulness of Commerce's statutory interpretations and regulations, it must employ the two-pronged test established in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the Court must examine "whether Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. If it has, the agency and the Court must comply with the clear intent of Congress. See id. at 842-43, 104 S.Ct. 2778. If it has not, the question for the Court is "whether the agency's answer is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. 2778.
On November 29, 2001, Commerce issued an antidumping duty order on certain hot-rolled carbon steel flat products from Thailand. See Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 Fed.Reg. 59,-562 (Nov. 29, 2001). The order was based on separate findings by Commerce and the U.S. International Trade Commission ("ITC" or "Commission") that certain hot-rolled steel from Thailand had been sold in the United States at less than fair value and contributed to the material injury suffered by the domestic hot-rolled steel industry. See id. at 59,563. SSI was among the Thai producers of subject merchandise included in the antidumping duty order. See id.
Following its issue, Commerce conducted a series of administrative reviews of the order in which it determined that SSI had not sold hot-rolled steel at less than normal value. See Certain Hot-Rolled Carbon Steel Flat Products From Thailand: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 19,388 (Apr. 13, 2004); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Rescission of Antidumping Duty Administrative Review, 69 Fed.Reg. 18,349 (Apr. 7, 2004) (this second administrative review was rescinded when the parties requesting the review withdrew their requests); Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Antidumping Duty Administrative Review, Partial Revocation of Antidumping Duty Order and Partial Rescission of Antidumping Duty Administrative Review ("Final Results of Third Administrative Review"), 71 Fed.Reg. 28,659 (May 17, 2006). In November 2004, as part of its request to conduct the third administrative review, SSI sought partial revocation of the order with respect to its sales pursuant to 19 C.F.R. § 351.222 (2004). In support of its request, SSI agreed "to immediate reinstatement of the order, so long as any
Upon completion of the third administrative review, Commerce revoked the antidumping duty order for SSI's exports of hot-rolled steel.
On November 8, 2006, United States Steel Corporation ("U.S.Steel") filed with Commerce an allegation claiming SSI had resumed sales of hot-rolled steel products at less than normal value subsequent to its removal from the original antidumping order. Invoking 19 C.F.R. § 351.216(b),
On October 7, 2008, SSI commenced an action with this Court seeking injunctive relief to prevent the Department from continuing with its changed circumstances review. Attempting to invoke the Court's jurisdiction under 28 U.S.C. § 1581(i), SSI challenged the Department's initiation of the changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order, as unlawful and ultra vires. See Sahaviriya Steel Indus. Co., Ltd. v. United States, 33 CIT ___, 601 F.Supp.2d 1355 (2009) ("SSI I"). The Court granted Commerce's motion to dismiss based on the lack of subject matter jurisdiction and because SSI's claims were not yet ripe. See id.
On May 15, 2009, the Department published the Final Results of its changed circumstances review in which it determined that SSI had resumed dumping of hot-rolled steel products, and reinstated Plaintiff under the antidumping duty order still in effect. A dumping margin of 9.04 percent ad valorem was calculated for all entries of subject merchandise produced
Plaintiff commenced this action on June 11, 2009, seeking judicial review of Commerce's Final Results in the changed circumstances review ("CCR" or "changed circumstances review"). Specifically, Plaintiff contests the legality of the Department's initiation of a changed circumstances review for the purpose of reinstating a previously revoked antidumping duty order, and the methodologies employed by Commerce to determine the dumping margin and cash deposit rate. See Compl. ¶ 24.
The gravamen of Plaintiff's argument is that Commerce lacks the statutory authority to support its initiation and conduct of a changed circumstances review for the purpose of reinstating a partially revoked antidumping duty order. See Pl.'s Brief at 15. According to SSI, there are only two statutory provisions which affect the manner in which a changed circumstances review is conducted. The first, section 1675(b),
Plaintiff further argues that, as presently constructed, the statute is an unambiguous declaration by Congress limiting Commerce's authority to conduct a changed circumstances review to those instances where revocation of an existing order is contemplated. See id. Plaintiff points to the text of the statute as evidence "that Congress did not intend to authorize the Department to reinstate an order with respect to merchandise covered by a revocation." Pl.'s Brief at 15. Therefore, any
Plaintiff looks to section 1675(d)(1) as the only other provision in the statute that affects the conduct of a changed circumstances review.
Next, Plaintiff challenges the Department's assertion that its reinstatement regulation, 19 C.F.R. § 351.222(b) and (e), is a reasonable exercise of its statutory authority to revoke and later reinstate an antidumping duty order. See id. SSI takes particular issue with Commerce's rationale that reinstatement is the "natural corollary" to revocation, and explains that the Department's regulations cannot provide the agency with a level of authority not contemplated by the statute. See id. at 22. For example, the regulation's requirement that a respondent agree in writing to immediate reinstatement if the Department later concludes that the exporter or producer has resumed dumping subsequent to revocation, cannot confer upon Commerce the legal authority it lacks under the statute. See id. Moreover, claims Plaintiff, even if the Court were to afford
Plaintiff relies on this Court's decision in Asahi Chemical Indus. Co. Ltd., v. United States, 13 CIT 987, 727 F.Supp. 625 (1989), as further evidence that section 1675(b) precludes Commerce from reinstating an order against merchandise that was previously revoked. See id. at 23-24. The Court in Asahi examined the Department's reinstatement regulation in effect at the time, 19 C.F.R. § 353.54(e) (1988), and whether its requirement that a party agree to immediate suspension of liquidation and reinstatement of the antidumping duty order was enforceable.
Defendant counters that, under the doctrine of collateral estoppel, SSI is precluded from making the argument that Commerce lacks the authority to conduct a CCR for purposes of reinstating an antidumping duty order. See Def.'s Resp. to Pl.'s Mot. for J. Upon the Agency R. ("Def.'s Brief") at 8. According to Commerce, the Court in SSI I, "specifically
Defendant further opines that, even assuming collateral estoppel does not apply, Commerce's reinstatement efforts derive from and are consonant with its statutory authority. See id. at 9. This, says Defendant, was the holding of the Court in SSI I, which also affirmed the agency's promulgation of 19 C.F.R. § 351.222(b)(2)(i), giving effect to the agency's authority to reinstate. See id. The Department acknowledges that section 1675(b)(1) does not expressly authorize a changed circumstances review for reinstatement, nevertheless, it is Commerce's position that there is "binding precedent" for such an expansive view of this section of the statute. Id. at 12. Commerce relies on the Federal Circuit's holding in Tokyo Kikai Seisakusho, Ltd. v. United States, 529 F.3d 1352 (Fed.Cir.2008) for the proposition that "Commerce's authority to conduct changed circumstances reviews under section 1675(b) is not limited to the circumstances described in the statute, and. . . encompasses a determination to reinstate an antidumping duty order." Id.
As evidence that the Department's actions in this review are consistent with its past practice, Defendant offers two proceedings in which, after conducting a changed circumstances review, Commerce reinstated a company under a partially revoked antidumping duty order. See id. at 13-14; see also Sebacic Acid from the People's Republic of China: Final Results of Antidumping Duty Changed Circumstances Review and Reinstatement of the Antidumping Duty Order, ("Sebacic Acid") 70 Fed.Reg. 16,218 (Mar. 30, 2005); Polyethylene Terephthalate Film, Sheet, and Strip from the Republic of Korea: Final Results of Antidumping Duty Changed Circumstances Review and Reinstatement of the Antidumping Duty Order, ("PET Film") 73 Fed.Reg. 18,259 (Apr. 3, 2008).
With regard to section 1675(d)(1), Defendant, once again, concedes that the statute "is silent with respect to Commerce's exercise of its revocation power." Def.'s Brief at 15. However, the Department maintains that its "authority to reinstate an exporter or producer in the antidumping order derives from its authority to revoke the antidumping order in part as to that particular exporter or producer." Id. Because section 1675(d)(1) provides for revocation "in whole or in part," the argument goes, Commerce is entitled to resolve the ambiguity created by the statute's failure to define this term. Id. (quoting 19 U.S.C. § 1675(d)(1)). Towards this end, Commerce promulgated 19 C.F.R. § 351.222 in order to administer the procedure for withdrawing partial revocation "by means of reinstating companies in an order that remains in effect for other producers or exporters." Id. As the Department further explains, it "interpreted the authority to partially revoke the antidumping duty order with respect to a particular company it finds to be no longer dumping to include the authority to impose a condition that the partial revocation may be withdrawn." Id. at 16 (quoting Initiation of Antidumping Duty Changed Circumstances Review: Certain Hot-Rolled Carbon Steel Flat Products from Thailand, 73 Fed.Reg. 18,770 (Apr. 7, 2008)). Similar to its previous argument, Commerce construes the Court's holding in SSI I as affirming this grant of authority. See id. at 18. Having already determined that its actions regarding reinstatement are statutorily based, Commerce dismisses as meritless, Plaintiff's claim that the certification signed by SSI cannot confer upon Commerce any authority beyond that provided by law. See id. at 19. As to the absence
Insofar as the Plaintiff relies on this Court's decision in Asahi, Defendant argues two points of error. First, based upon the Court's ruling in SSI I, "the question as to whether Asahi has any bearing upon whether Commerce acted ultra vires has [already] been decided in favor of the United States." Id. at 22. Second, even assuming Asahi were relevant, Commerce's current reinstatement regulation has since been substantively amended, curing each of the defects identified by the court in that case.
As a threshold matter, Defendant invokes the well-established principle of collateral estoppel in claiming that Plaintiff is precluded from relitigating matters already decided against them in SSI I, specifically whether Commerce lacks the authority for reinstatement pursuant to sections 1675(b) and (d). Under the doctrine of collateral estoppel, or issue preclusion, a litigant who has litigated an issue in a full and fair proceeding is estopped from relitigating the same issue in a subsequent proceeding. See Thomas v. Gen. Servs. Admin., 794 F.2d 661, 664 (Fed.Cir.1986). Four conditions must be satisfied before a party can seek to apply collateral estoppel; (1) the issue or fact previously adjudicated is identical with the one now presented; (2) the issue or fact was actually litigated in the prior case; (3) resolution of the issue or fact was essential to a final judgment in the first action; and (4) the party against whom preclusion is applied had a full and fair opportunity to litigate the particular issue or fact. See id.
In addressing the first and second prongs of the Thomas test, the Court finds that the legal issue presented here is not identical to the issue actually litigated in SSI I. While it is true that Plaintiff, in SSI I, urged review of the agency's reinstatement authority, it did so under the premise of an ultra vires rationale. The Court was careful to make the distinction between a claim of ultra vires agency conduct, and one that merely amounted to a "mistake of law." SSI I, 33 CIT at ___, 601 F.Supp.2d 1355, 1367. As the Court noted:
Id. (quoting State of Alaska v. Babbitt, 67 F.3d 864, 867 (9th Cir.1995)). The Court ultimately concluded that:
Id. at 1369. Hence, the issue, in SSI I, of whether or not Commerce was empowered to engage in the challenged course of conduct in the first place is different from the issue of whether Commerce's reinstatement of a partially revoked antidumping duty order was an errant application of the statute. Therefore, Plaintiff's claim is not barred by the doctrine of collateral estoppel.
At its core, this case revolves around the issue of whether Commerce has the authority, under 19 U.S.C. § 1675(b) and (d), to initiate a changed circumstances review for purposes of reinstating a previously revoked antidumping duty order. Plaintiff argues that the authority granted by Congress under section 1675(b) and (d) is exclusive to the explicit textual content of these provisions. In other words, because the statute did not expressly provide for reinstatement via a changed circumstances review or through any other mechanism for that matter, Congress' grant of authority is restricted to review of only those specific types of final determinations listed therein (i.e., under section 1675(b)(1)), and is otherwise intended only to allow the Department to revoke existing orders (i.e., under section 1675(d)), not reinstate them. Moreover, Plaintiff asserts, Congress has directly spoken to the issue, therefore, Chevron deference does not apply. The Court disagrees. In determining whether an agency's interpretation and application of a statute is "in accordance with law," the Court must undertake the two-step analysis prescribed by Chevron. Chevron, 467 U.S. at 837, 104 S.Ct. 2778. The first Chevron step is to determine whether "Congress has directly spoken to the precise question at issue." Id. at 842, 104 S.Ct. 2778. Employing traditional tools of statutory construction, the Court looks first to the text of the statute. See Timex V.I., Inc. v. United States, 157 F.3d 879, 882 (Fed.Cir.1998). Because the "statute's text is Congress' final expression of its intent, if the text answers the question, that is the end of the matter." Id. at 882. If, however, the statute's text does not explicitly address the question at issue, the Court must seek to determine whether Congress had an intent on the matter. See id. Only if after this investigation the Court is still at a loss as to what Congress intended does the second prong of Chevron apply.
A review of 19 U.S.C. § 1675(b)(1) does not support the suggestion that Congress intended to circumscribe the changed circumstances review process to only those determinations listed therein. Neither the language of the statute nor the legislative history expressly prohibit Commerce from using a CCR for reinstatement purposes. As Defendant points out, this Court has recognized the Department's use of a CCR for purposes other than those listed in the
This line of reasoning, however, misses the point. These cases are not offered as justification for reinstatement per se, but rather establish a judicial recognition of Commerce's authority to conduct changed circumstances reviews for purposes other than those described in section 1675(b)(1). The existence, or lack thereof, of an antidumping duty order on the affected party does nothing to detract from the argument that the scope of section 1675(b)(1) is not so constrained. The lack of certainty as to whether Congress has directly spoken to this precise issue, compels an examination of whether the Department's interpretation is based on a permissible construction of the statute. In other words, the Court must proceed to the second step of the Chevron analysis.
Under the second step of Chevron, "[a]ny reasonable construction of the statute is a permissible construction." Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed.Cir.2004) (quoting Torrington v. United States, 82 F.3d 1039, 1044 (Fed.Cir.1996)). With this as a guide, the courts have accorded particular deference to Commerce in antidumping determinations. See id. Here, the wording of section 1675(d) is instructive. The statute expressly contemplates the revocation "in whole or in part" of an antidumping duty order or "finding." 19 U.S.C. § 1675(d). Both parties agree that there was only a partial revocation with respect to the merchandise produced and exported by SSI, and that the order remained in effect as to other producers of hot-rolled steel from Thailand. While this fact, in and of itself, negates Plaintiff's claim that section 1675(d)(1) does not distinguish between total
Because the statute does not define "in whole or in part," Commerce filled this statutory gap by promulgating regulations to govern the procedures for partial revocation of an order or finding. The mechanism by which Commerce chose to accomplish this is 19 C.F.R. § 351.222. Commerce explains that the rationale underlying this procedure is to ensure that injurious dumping is remedied, especially under circumstances, such as those present here, where a party removed from an antidumping order subsequently resumes dumping. Without such procedures, it is conceivable that a respondent company could evade penalty by curbing its dumping activity for the requisite period of time in order to seek removal from the order and after having done so, return to making sales at below normal value. The reasonableness of this concern is embodied in the fact that SSI willingly entered into an agreement allowing its reinstatement under the order. Although SSI now claims that it only agreed to reinstatement pursuant to a new investigation, this claim is inconsistent with Plaintiff's acquiescence to "immediate reinstatement of the order, so long as any Thai producer is subject to it." Request For Changed Circumstances Review On Behalf Of United States Steel Corp. (Nov. 8, 2006), Ex. 1 at 3 (PR 721). Plaintiff fails to explain why, if reinstatement could only be effected through a new investigation, the company agreed to predicate reinstatement on the condition that the order remain in effect. The Court interprets Plaintiff's acceptance of the terms of the reinstatement agreement as its accedence to the reasonableness of the practice.
Plaintiff's reliance on the Court's decision in Asahi is similarly flawed. The Court's principal objection to the regulation at issue in Asahi was the degree to which the provision's ambiguity made any standard for reinstatement conjectural. See Asahi, 13 CIT at 991, 727 F.Supp. 625, 628. Specifically, 19 C.F.R. § 353.54(e) did not; (1) describe the circumstances under which Commerce would consider reinstatement;
In light of the above, the Court finds that Commerce's rationale and interpretation of section 1675(b) and (d) are reasonable within the Chevron framework, supported by substantial evidence on the record and otherwise in accordance with law.
SSI complains that Commerce acted arbitrarily when it changed its U.S. date of sale methodology. Rather than relying on the contract date, as was done in previous segments of this proceeding, Commerce instead used invoice date in the date of sale analysis. See Pl.'s Brief at 28-29. SSI alleges that had the Department adhered to its longstanding practice of relying on respondent's contract date, SSI would have no antidumping duty margin. See id. at 28. Hence, Commerce would have been precluded from reinstating the order as to SSI. Acknowledging the regulatory preference for use of invoice date as the date of sale, Plaintiff points out that this same regulation provides for use of a date other than invoice date, if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established.
Plaintiff avers that date of sale issues are typically resolved by examining the significance of any changes to the material terms of sale involved. See id. In other words, the Department should have examined whether or not the material terms of sale underwent any meaningful changes between the contract date and date of
SSI references another administrative decision by Commerce, in which the agency declared that "a change in aggregate quantity does not, in and of itself, necessarily constitute a meaningful change to the material terms of sale." Final Results of Redetermination Pursuant to Second Remand, Nakornthai Strip Mill Public Co. Ltd. v. United States, Court No. 07-00180, p. 3 (Feb. 9, 2009); see also Pl.'s Brief at 30. Therefore, because Plaintiff's U.S. sales process has remained the same throughout, resulting in only minor changes in the aggregate quantity shipped, and Commerce has relied on contract date as the date of sale in all previous segments of this proceeding, the Department's decision to change from contract date to invoice date is unsupported by substantial evidence. See id. at 30-33.
Lastly, it is SSI's position that "important policy reasons" exist as to why contract date is the appropriate U.S. date of sale in the underlying changed circumstances review. Id. at 34. To begin with, Plaintiff maintains that it has complied with all requests and cooperated fully in every segment of this proceeding, and acted consistent with established Department precedent. See id. Additionally, "the recording of final contract date is consistent with the Department's position as to what is considered a `meaningful' change in material terms." Id. For instance, the changes in shipment quantity under SSI's contract sales were not "meaningful in relation to the total quantity of U.S. sales." Id. at 33. Therefore, if, despite this, invoice date continues to be the U.S. sale date, "contract terms will never be considered set" and Commerce's date of sale regulation will become "meaningless." Id. at 34.
Commerce defends its use of invoice date as U.S. date of sale, as a proper exercise of the regulatory presumption reflected in 19 C.F.R. § 351.401(i). See Def.'s Brief at 28-29. The regulation's use of the term "normally" establishes invoice date as the presumptive date of sale. 19 C.F.R. § 351.401(i). According to Commerce, this presumption may be overcome if satisfactory evidence is presented establishing the material terms of sale on some other date. See id. at 29. In the underlying changed circumstances review, Commerce alleges that the material contract terms were not set until invoice date because the difference between the quantity ordered and the quantity shipped exceeded the aggregate quantity tolerance level allowed by the contract, thereby constituting changes to the material terms of sale, i.e., price, quantity, delivery, and payment. As to Plaintiff's insistence that Commerce should have used contract date as the U.S. date of sale because this was the agency's practice in all previous segments of this proceeding, Commerce argues that the agency's "date of sale determination is based upon the facts presented by each review." Id. Therefore, even if SSI's U.S. sales process has remained unchanged from previous reviews, Commerce's date of sale determination is predicated on the unique facts of this case, not those from earlier determinations. See id.
As a final point, Commerce rejects as irrelevant Plaintiff's contention that the instant case presents important policy considerations. Plaintiff's cooperation, says Commerce, has not been called into question, therefore any such policy considerations are extraneous to the issue of the agency's determination that Plaintiff failed to establish the requisite grounds for use of a date other than invoice date. See id. at 40.
The antidumping statute on its face does not specify the manner in which Commerce is to determine the date of sale methodology. The legislative history, however, provides some insight into what Congress intended. As the Statement of Administrative Action accompanying the statute explains, the date of sale is the "date when the material terms of sale are established." Uruguay Round Agreements Act, Statement of Administrative Action ("SAA"), H.R. 5110 (H.R.Doc. No. 103-316), reprinted in 1994 U.S.C.C.A.N. 4040, 4153. Hence, Congress has "expressed its intent that, for antidumping purposes, the date of sale be flexible so as to accurately reflect the true date on which the material elements of sale were established." Allied Tube and Conduit Corp. v. United States, 24 CIT 1357, 1370, 127 F.Supp.2d 207, 219 (2000). Towards this end, Commerce has promulgated regulations which provide that invoice date is the presumptive date of sale, but with an express caveat for situations where another date better reflects the date on which the material terms of sale were established. See 19 C.F.R. § 351.401(i). Thus, Commerce's date of sale regulation provides for a "rebuttable presumption" that invoice date will normally be identified as the date of sale.
In its interpretation of material terms of sale, the Department's practice has evolved to include price, quantity, delivery terms and payment terms. See SeAH Steel Corp. v. United States, 25 CIT 133, 134 (2001); Nakornthai Strip Mill Public Co. v. United States, 33 CIT ___, 614 F.Supp.2d 1323, 1334 (2009) ("Nakornthai III"). More recently, however, Commerce has interpreted material terms of sale to include the specification of an aggregate quantity tolerance level because the aggregate quantity tolerance level may be viewed as specifying the amount or quantity of the merchandise to be shipped. See Nakornthai Strip Mill Public Co. v. United States, 32 CIT ___, 558 F.Supp.2d 1319,1327 (2008) ("Nakornthai I").
In choosing a date of sale, Commerce weighs the evidence presented and determines the significance of any changes to the terms of sale involved. From the beginning of this changed circumstances review, SSI has argued that any changes made to the contract were minimal and therefore not meaningful in relation to the total quantity of U.S. sales. In support of this contention, SSI looks to Steel Plate from Romania where Commerce chose to use order acknowledgment date (contract date) as the date of sale even though one sale fell outside of the quantity tolerance limits set in the contracts. See 72 Fed.Reg. 6,522 and accompanying Issues and Decision Memorandum at cmt. 1, p. 7. According to SSI, the circumstances in Steel Plate from Romania are essentially the same as those present here, in that the material terms of sale did not undergo any meaningful changes subsequent to the final contract date. The Court disagrees. Although both cases involve sales exceeding the aggregate quantity tolerance level specified in the contracts, Steel Plate from Romania implicated only a single sale within a single contract. See id. at cmt. 1, p. 5. Conversely, the instant review involves multiple changes exceeding the contract tolerances of multiple contracts, representing multiple sales to multiple customers. See Memorandum to File from John K. Drury, Analysis Memorandum for the Final Results of Changed Circumstances Review of Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Sahaviriya Steel Industries Public Co., Ltd. ("SSI"), dated May 7, 2009, at p. 6 (CR 1178) ("Analysis Memorandum"). Of the [[]] contracts examined, the Department found that the quantity tolerance level was exceeded in [[]], accounting for almost [[]] of SSI's contracts.
Equally unconvincing is Plaintiff's argument that the changes in quantity tolerance levels are not meaningful in relation to the total quantity of U.S. sales because they represent only [[]] of all quantities ordered in the final contracts. As U.S. Steel correctly points out, this is not the relevant measure of whether a quantity change is meaningful. See Mem. in Opp'n to Plaintiff's Mot. for J. On the Agency R. ("Def.-Intervenor's Brief") at 32. Plaintiff's position would render meaningless the quantity tolerance levels negotiated by the contracting parties. Under this theory, SSI could conceivably exceed the quantity tolerance level of virtually every contract, meriting a 100% non-compliance rate, yet if the impact of these changes on the aggregate quantity and value of all U.S. sales was minor, contract date would still be appropriate for the date of sale
In sum, Plaintiff's assertion that Commerce inappropriately used invoice date as the date of sale holds no merit. The evidence necessary to compel rejection of the regulatory presumption in favor of invoice date as the date of sale is conspicuously absent. Furthermore, Commerce's decision to use the invoice date underscores the contracts' lack of finality stemming from sudden changes to the aggregate quantity shipped by Plaintiff, which significantly altered the material terms of sale. It is instances such as this that motivated Congress to grant Commerce the flexibility to choose the date of sale that best reflects the final date on which the material terms of sale were established. Thus, Commerce's decision to proceed with the invoice date as the benchmark for its antidumping determination, despite having applied the contract date in previous reviews, is in accordance with the agency's consistent practice of determining the date of sale based upon the facts specific to each review. Accordingly, the Court finds, as supported by substantial evidence and otherwise in accordance with law, Commerce's date of sale methodology.
The Court takes note of SSI's assertion that there are important policy considerations which support the use of contract date as the appropriate date of sale. Because this argument is not grounded in any legal authority or supported by relevant record evidence, the Court does not specifically address this claim.
For the reasons set forth above, the Motion for Judgment on the Agency Record filed by Sahaviriya Steel Industries is denied. Judgment shall be entered accordingly.
Reviews based on changed circumstances
(1) In general
Whenever the administering authority or the Commission receives information concerning, or a request from an interested party for a review of—
which shows changed circumstances sufficient to warrant a review of such determination. . ., the administering authority . . . shall conduct a review of the determination[.]
(a) Introduction. "Revocation" is a term of art that refers to the end of an antidumping or countervailing proceeding in which an order has been issued.
In determining whether to revoke an antidumping duty order in part, the Secretary will consider:
19 C.F.R. § 351.222(b)(2)(i).
Regardless, Plaintiff's objection to the Court's interpretation of the Jia decision is misplaced. In SSI I, the Court was adducing evidence with regard to jurisdiction, not reinstatement. In fact, the Court in SSI I specifically declined to review Commerce's reinstatement regulation under the guise of a jurisdictional claim. See SSI I, 33 CIT ___, 601 F.Supp.2d 1355, 1368.
Date of sale. In identifying the date of sale of the subject merchandise or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the ordinary course of business. However, the Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.
In addition, SSI submitted affidavits from all [[]] of its U.S. customers attesting to the fact that "while there might be minor variations to non-material terms in the normal course of business, once the Sales Contract is signed, [customer] understands there can thereafter be no changes to the material terms of sale without an amendment to the contract separately and later agreed to by [customer] and SSI." Response to the Department's Sept. 18, 2008 Third Supplemental Questionnaire Regarding Sections A, B, And C, Ex. S3C-3, ¶ 7 (CR 1031); see also Letter from Sahaviriya Steel Industries to the Department of Commerce, dated Aug. 25, 2008, (CR 1021). While these declarations may establish how the contracting parties intended to proceed, they are not an accurate reflection of their course of conduct.
