United States Steel Corp. v. United States

Slip Op. 13-156

UNITED STATES COURT OF INTERNATIONAL TRADE

UNITED STATES STEEL CORPORATION,

Plaintiff,

and

NUCOR CORPORATION,

Plaintiff-Intervenor,
Before: Claire R. Kelly, Judge
Consol. Court No. 12-00071
v.
Public Version
UNITED STATES,

Defendant,

and

HYUNDAI HYSCO, POHANG IRON & STEEL
CO., LTD., and POHANG
COATED STEEL CO., LTD.,

Defendant-Intervenors.

OPINION

[Sustaining Commerce’s antidumping duty administrative review]

Dated: 12/27/2013

Ellen J. Schneider, Skadden Arps Slate Meagher & Flom, LLP of Washington, DC
argued for Plaintiff. With her on the brief were Robert E. Lighthizer and Jeffrey D. Gerrish.

Timothy C. Brightbill, Wiley Rein, LLP of Washington, DC argued for Plaintiff-
Intervenor. With him on the brief was Alan H. Price.

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on the
Consol. Court No. 12-00071 Page 2

brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the
brief was Nathaniel J. Halvorson, Attorney, Office of the Chief Counsel for Import
Administration, United States Department of Commerce, of Washington, DC.

Jarrod M. Goldfeder, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, DC,
argued for Defendant-Intervenors. With him on the briefs were J. David Park, and Sally
S. Laing.

Kelly, Judge: This matter is before the court on motions for judgment on the

agency record by Plaintiff, United States Steel Corporation (“U.S. Steel”), and by Plaintiff-

Intervenor, Nucor Corporation (“Nucor”), (collectively “Plaintiffs”), both members of the

domestic industry, pursuant to USCIT Rule 56.2. Plaintiffs’ action, brought pursuant to

section 516A of the Tariff Act of 1930 (“Tariff Act” or the “Act”), as amended, 19 U.S.C.

§ 1516a (2006),1 challenges the United States Department of Commerce’s (“Commerce”)

final determination in the administrative review issued in Certain Corrosion-Resistant

Carbon Steel Flat Products From the Republic of Korea, 77 Fed. Reg. 14,501 (Dep’t

Commerce Mar. 12, 2012) (“Final Results”) which found de minimis margins for two

respondents, Defendant-Intervenors herein. Defendant, United States, and Defendant-

Intervenors, Pohang Iron & Steel Co., Ltd. and Pohang Coated Steel Co., Ltd. (collectively

“POSCO”), and Hyundai HYSCO (“HYSCO”) oppose this action. The administrative

review arises from the antidumping duty order covering certain corrosion-resistant carbon

steel flat products (“CORE”) from Korea. See, e.g., Pl.’s Compl. at ¶ 1, Mar. 23, 2012,

ECF No. 6; see also Certain Cold-Rolled Carbon Steel Flat Products and Certain

1
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2006 edition, and all applicable supplements.
Consol. Court No. 12-00071 Page 3

Corrosion-Resistant Carbon Steel Flat Products From Korea, 58 Fed. Reg. 44,159 (Dep’t

Commerce Aug. 19, 1993) (antidumping duty order). Commerce initiated the 17th

administrative review on September 29, 2010, for, among others, POSCO and HYSCO.

See Initiation of Antidumping and Countervailing Duty Administrative Reviews and

Requests for Revocation in Part, 75 Fed. Reg. 60,076, 60,077 (Dep’t Commerce Sept.

29, 2010).

BACKGROUND

Both POSCO and HYSCO produce and sell several different product types

of CORE subject to the dumping order in question. Commerce based its review of the

subject merchandise on twelve different model-match criteria, one of which is temper

rolling.2 HYSCO produces and sells temper rolled (“TR”) and non-tempered rolled

(“NTR”) merchandise in both the United States and its home market. In its review,

Commerce chose the date of shipment as the date of sale for POSCO’s U.S. sales in

order to determine the dumping margin. Further, it considered HYSCO’s NTR home

market sales to be made within the ordinary course of trade. Finally, after it found a de

minimis margin for POSCO for the third consecutive review, Commerce revoked the order

with respect to POSCO. Final Results at 14,501; Issues and Decision Memorandum for

the Final Results of the 17th Administrative Review of the Antidumping Duty Order on

Certain Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea

(2009-2010) cmts 3, 5, 6, A-580-816, (Mar. 5, 2012) (“Issues and Decision

2
Temper rolling “refers to a finishing operation that smoothes [sic] the surface of the
steel.” Mem. Def.-Interv. HYSCO Opp’n to Pl.’s Rule 56.2 Mot. J. at 4, Feb. 25, 2013,
ECF No. 68.
Consol. Court No. 12-00071 Page 4

Memorandum”), available at http://enforcement.trade.gov/frn/summary/Korea-

south/2012-5937-1.pdf (last visited Dec. 4, 2013).

Plaintiffs challenge Commerce’s selection of the shipment date as the date

of sale for POSCO, see, e.g., Pl.’s Compl. at ¶ 10-11, and Commerce’s determination

that certain sales of NTR merchandise by HYSCO were within the ordinary course of

trade. Id. at ¶ 16-17. Further, Plaintiffs challenge Commerce’s revocation of the dumping

order with respect to POSCO. Id. at ¶ 12-13.

For the reasons set forth below, the court sustains Commerce’s selection

of the shipment date as the date of sale for POSCO’s U.S. sales, its findings that

HYSCO’s sales of NTR merchandise were within the ordinary course of trade, and its

decision to revoke the antidumping duty order with respect to POSCO.

JURISDICTION

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006),3 and 19

U.S.C. § 1516a(a).

DISCUSSION

Standard of Review

“The 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. § 1516a(b)(1)(B)(i). To be in accordance with law,

a decision must not be arbitrary and capricious, contrary to regulations, statutes or the

3
Further citations to Title 28 of the U.S. Code are made to the 2006 edition, and all
applicable supplements.
Consol. Court No. 12-00071 Page 5

Constitution, and must be supported by substantial evidence and reasoned explanations.

See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,

41-43, 103 S.Ct. 2856, 2866-67 (1983); SKF USA Inc. v. United States, 630 F.3d 1365,

1373-74 (Fed. Cir. 2011). Substantial evidence exists on the record when there is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed.

126, 140 (1938)). However, the “substantiality of evidence must take into account

whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB,

340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456, 467 (1951). Nevertheless, “the

possibility of drawing two inconsistent conclusions from the evidence does not invalidate

Commerce's conclusion as long as it remains supported by substantial evidence on the

record.” Zhaoqing New Zhongya Aluminum Co. v. United States, 36 CIT __, __, 887 F.

Supp. 2d 1301, 1305 (2012) (citing Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at

465, 95 L.Ed. at 467-68).

Date of Sale

Commerce’s determination that POSCO’s date of sale should be based on

the date of shipment is supported by substantial evidence and in accordance with law.

Commerce calculated dumping margins in this case on a constructed export price (“CEP”)

basis, so the date of sale for purposes of determining the U.S. price of the subject

merchandise was the date the merchandise was first sold to a party not affiliated with
Consol. Court No. 12-00071 Page 6

POSCO. See 19 U.S.C. § 1677a(b). The regulation instructs Commerce how to identify

the date of sale generally. It provides:

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.

19 C.F.R. § 351.401(i)(2013). Thus, the regulation sets forth a presumption that “the

Secretary normally will use the date of invoice” for the date of sale but “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.” 19 C.F.R.

§ 351.401(i)(2013). See Sahaviriya Steel Indus. Pub. Co. v. United States, 34 CIT __,

__, 714 F. Supp. 2d 1263, 1279 (2010) (“Thus, Commerce’s date of sale regulation

provides for a ‘rebuttable presumption’ that invoice date will normally be identified as the

date of sale.” (citation omitted)), aff’d, 649 F.3d 1371 (Fed. Cir. 2011). Although

Commerce’s regulation provides that the date of sale will normally be the invoice date,

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).

Implicated in this case is what discretion the Secretary has to be “satisfied”

that a date other than the invoice date is more appropriate as the date of sale. In other

words, the question is whether record evidence supports a conclusion by the Secretary
Consol. Court No. 12-00071 Page 7

that the shipment date better reflects the date on which the exporter or producer

established the material terms of sale. Material terms include price and quantity among

others. See Sahaviriya Steel, 34 CIT at __, 714 F. Supp. 2d at 1280.

Commerce found that “the material terms of sale were set at the time of

shipment.” Issues and Decisions Memorandum at cmt 6. Commerce relied on POSCO’s

questionnaire response regarding the date of sale, record documentation regarding when

the material terms of sale were set, a long-standing business practice in the Korean steel

industry, and the U.S. sales process for all four respondents. Issues and Decision

Memorandum at cmt 6 nn.95-99. Further, it noted “HYSCO has reported ship date as

date of sale consistently in previous reviews which the Department has accepted.” Id. at

nn.99.

POSCO’s questionnaire responses and supporting documentation in the

record establish POSCO’s sales process. POSCO’s U.S. affiliate, POSCO America

Corporation (“POSAM”), negotiates and executes purchase orders with United States

customers.4 Def.’s Opp’n. Pl.’s Mot.’s J. at 19, Feb. 27, 2013, ECF No. 72; see also Mem.

POSCO POHANG Coated Steel Co., Ltd., Opp’n Pl.’s and Pl.-Interv.’s 56.2 Mots.’ J. at

25-27, Feb. 25, 2013, ECF No. 70; POSCO’s Dec. 20, 2010 Sect. A Resp. at A-18, A-24,

PD I 52, CD I 8 (Dec. 20, 2010), ECF No. 32 (May 7, 2012). Then, on a monthly basis

the U.S. customer sends an email to POSAM outlining the quantities and types of

products it would like to order. Def.’s Opp’n. Pl.’s Mot.’s J. at 19. Next, POSAM enters

4
Although POSAM is the importer of record for the goods shipped by POSCO, POSAM
does not take possession of the goods.
Consol. Court No. 12-00071 Page 8

the order into POSCO’s computer system, “which is the basis for generating an order

sheet.” Id. POSCO then manufactures the products and, after shipping arrangements

are made, ships the products directly to the U.S. customer. Id.

Based upon the foregoing description of the sales process as supported by

POSCO’s questionnaire responses, a reasonable mind could conclude the parties intend

the quantity and delivery terms to be fixed when POSCO ships the merchandise to the

U.S. customer. In Commerce’s Section A questionnaire dated October 29, 2010,

Commerce requested POSCO to report its date of sale for home market sales and U.S.

sales. See POSCO’s Dec. 20, 2010 Sect. A Resp. at A-22.5 POSCO responded on

December 20, 2010 and stated that “[f]or U.S. sales, POSCO has reported the date of

shipment from the mill in Korea as the date of sale. The invoice issued to the customer

by POSAM is issued long after the date of shipment.” Id. at A-23. POSCO’s response

supports its intention as to the date of sale. However, Commerce did not accept this

5
In particular Commerce’s question asks:
Sales Process: The date of sale for your sales to the United States and the
foreign market is important to the Department's analysis. It will determine
which sales are reported in response to sections B and C of this
questionnaire and the exchange rate used to convert normal value into US
dollars. Note, however, that the Department's criteria for determining date
of sale may differ from those that you apply in the normal course of
business. A description of the Department's criteria is included in the
Glossary of Terms at Appendix I; please use these criteria in preparing your
response to this questionnaire. If you have difficulty deciding which date to
use as the date of sale, please contact the official in charge by no later than
fourteen calendar days after the issuance of this questionnaire (the
issuance date of this questionnaire appears on the first page of the cover
letter). Describe the sales process for each method or channel of
distribution described in response to question 3 above. Include a
description of each step in the sales process.
POSCO’s Dec. 20, 2010 Sect. A Resp. at A-22.
Consol. Court No. 12-00071 Page 9

assertion at face value but followed up with a supplemental questionnaire on April 6, 2011.

In that questionnaire it asked POSCO for more information regarding its date of sale.

Commerce stated,

Please provide a copy of all sales documents which set the material terms
of sale, including quantity and price, agreed upon between POSCO America
Corporation (POSAM) and your unaffiliated U.S. customer for the top five
largest U.S. sales by quantity: SEQUs [[ ]].
Furthermore, please state if there were any changes to the material terms
of sale following shipment for any of your U.S. sales during the period of
review.

POSCO’s May 4, 2011 Supp. Sect. A-C QNR at 1, PD I 124, CD I 39 (May 4, 2011), ECF

No. 32 (May 7, 2012). POSCO responded that “POSAM and its unaffiliated customers

generally set price and quantity terms through e-mail correspondence.” Id. POSCO

further cites documents attached at Exhibit S-1. Each sequence at Exhibit S-1 contains

several documents including a purchase order, an order sheet, an invoice issued between

POSCO and POSAM, a packing list, a bill of lading, an entry summary, and finally a

commercial invoice between POSAM and the U.S. customer. See id. at Ex. 1.

POSCO also discusses possible changes to material terms including

quantity and delivery destination that can occur after the purchase order but before

shipment. Id. at 1. Finally, POSCO states that shipment date is the best date of sale:

because it reflects the date on which the material terms of sale become
firmly established. Indeed, the two changes noted above occur on or before
the date of shipment, which is subsequent to the date of the initial order.
Using shipment date as the date of sale is also consistent with the
Department's longstanding practice, including in this proceeding, that the
date of sale cannot be later than the date of shipment of the subject
merchandise to the unaffiliated U.S. customer.

Id. at 1-2.
Consol. Court No. 12-00071 Page 10

In this supplemental questionnaire, Commerce also noted [[

]] and asked for “calculation worksheets and source documentation

[[ ]].” Id. POSCO responded to this query by

stating “[t]he difference between POSCO’s price to POSAM and POSAM’s price to the

unaffiliated customer is attributable to [[

]].” Id.

POSCO provided a worksheet showing calculations at Exhibit S-3. The worksheet

provided by POSCO shows the values it placed on each of these expenses. After adding

them all together the total equals the price invoiced from POSAM to the U.S. customer.

Commerce probed further and on July 20, 2011 Commerce issued another

supplemental questionnaire. See Dept.’s July 20, 2011 Supp. Sect. A-C QN, PD I 167,

CD I 58 (Jul. 20, 2011), ECF No. 32 (May 7, 2012). It asked for more date of sale

information. Id. at 2.

1. You state that "there were no changes to the material terms of sale
following shipment for any of {your} U.S. sales during the POR" on page
1 of your May 2, 2011, supplemental questionnaire response (May QNR
Response). Please provide the documents that finalizes [sic] the
material terms of sale (i.e., price, quantity, delivery terms, and payment
terms) at the date of shipment and that shows that such terms did not
change after the shipment date for (i.e., SEQUs [[
]] your U.S. sales during the POR.
2. You stated in your May QNR Response that "POSAM and its unaffiliated
customers generally set price and quantity terms through email
correspondence." However, [[

]]. All of the
other sales documents which you submitted [[
Consol. Court No. 12-00071 Page 11

]]. Please provide sales documents which set the
material terms of sale between POSAM and the unaffiliated U.S.
customer for your top five largest U.S. sales by quantity (i.e., SEQUs
[[ ]]).
3. You stated that [[

]] For SEQUs [[
]], provide invoices or other source documentation clearly
showing the actual amounts paid for the following expenses:
[[
]] In addition, you only
provided a calculation worksheet for SEQU [[ ]]. Please provide
calculation worksheets for the other four sales, specifically SEQUs [[
]].

Id. POSCO responded to the July 20, 2011 questionnaire on August 3, 2011 providing

Commerce with documents and worksheets regarding international freight, U.S.

brokerage and handling, marine insurance, and U.S. duty. POSCO’s Aug. 3, 2011 Supp.

Sect. A-C QNR, PD I 171, CD I 62 (Aug. 3, 2011), ECF No. 32 (May 7, 2012).

The record taken as a whole contains substantial evidence for a finding by

Commerce that the shipment date reflected the date on which the parties established the

material terms. POSCO asserted that the shipment date was the date of sale in its

questionnaire. As discussed above, Commerce did not merely accept this assertion at

face value but probed further and elicited information and documentation concerning the

circumstances surrounding POSCO’s sales. Commerce reasonably made its date of sale

determination based upon the responses it received, Commerce’s knowledge of the

industry, and the lack of any evidence, that would undermine or contradict its findings.

The Plaintiffs claim that the lack of any one single document memorializing

the material terms being fixed at the time of shipment precludes shipment date as a viable

date of sale. See Mem. Supp. Pl. U.S. Steel Mot. J. at 15, Sept. 24, 2012, ECF No. 46;
Consol. Court No. 12-00071 Page 12

Br. Supp. Nucor 56.2 Mot. at 18-19, Sept. 24, 2012, ECF No. 45; Oral Arg. at 1:08:28-54,

Oct. 28, 2013, ECF No. 100. Nothing in the regulation requires Commerce to base its

decision upon such a single document. This argument ignores the language of the

regulation. Commerce may choose a date other than the date of invoice as the date of

sale if it satisfies itself that another date better represents when the parties established

the material terms. Here, it relied upon the questionnaire response, its knowledge of the

industry, and its understanding of how the transactions took place as supported by record

evidence.

Moreover, despite protestations to the contrary, no documents or evidence

relied upon by the Plaintiffs undercuts Commerce’s findings. Plaintiffs point to the offer

sheet, the purchase order, and the commercial invoice, note that the prices on each are

different, and argue that therefore the commercial invoice is the only possible evidence

establishing when the material terms are set. However, no one argues that the offer sheet

or the purchase order represented or showed the final price. Commerce determined

according to record evidence that the terms were fixed upon shipment. The existence of

these other documents, or the fact that they show different amounts, does not detract

from that finding. While it is conceivable that Commerce might have drawn another

conclusion from these documents, “the possibility of drawing two inconsistent conclusions

from the evidence does not invalidate Commerce's conclusion as long as it remains

supported by substantial evidence on the record.” Zhaoqing New Zhongya Aluminum, 36

CIT at __, 887 F. Supp. 2d at 1305 (citing Universal Camera Corp., 340 U.S. at 488, 71

S.Ct. at 465, 95 L.Ed. at 467-68).
Consol. Court No. 12-00071 Page 13

Plaintiffs argue strongly that Commerce’s practice of using the shipment

date as the date of sale when shipment date precedes invoice date is not in accordance

with law because it “contradicts Commerce’s own regulations.” Mem. Supp. Pl. U.S. Steel

Mot. J. at 20. This argument holds some weight. The regulation states that the Secretary

“normally will use the date of invoice” for the date of sale. 19 C.F.R. § 351.401(i)(2013).

A determination that relied solely on a practice to use shipment date when it precedes

invoice date would appear to contradict this language. See Mittal Steel Point Lisas Ltd.

v. United States, 31 CIT 638, 647, 491 F. Supp. 2d 1222, 1231 (2007) (stating that

Commerce’s practice “is in contradiction to Commerce’s statement in the [regulation’s]

preamble” but noting other courts have “implicitly approved” the practice), aff’d, 548 F.3d

1375 (Fed. Cir. 2008).

While the second sentence of the regulation allows Commerce to choose a

date other than the invoice date, it requires that Commerce be “satisfied that a different

date better reflects the date on which the exporter or producer establishes the material

terms of sale.” 19 C.F.R. § 351.401(i)(2013). The second sentence therefore clarifies

that while normally the invoice date will be the date of sale, another date can be chosen

if Commerce makes a determination in a particular case so as to “satisfy” itself. This

second sentence requires Commerce to make a fact-specific determination in a particular

case that another date better reflects the date on which the material terms were

established.6 It would seem that, by definition, a general practice cannot satisfy such a

6
One could argue that the second sentence does not exhaust the range of circumstances
in which Commerce could deviate from its “normal” practice. However, to the extent that
there could be any ambiguity in the regulation, Commerce foreclosed the possibility that
Consol. Court No. 12-00071 Page 14

fact-specific command. While Commerce’s knowledge of the industry, including how

business is done, is not irrelevant, any purported practice alone would seem not to be

enough to satisfy the standard that the regulation, written by Commerce, provides.7

However, here Commerce did not rely solely upon the practice. Commerce

made a specific finding that the shipment date better reflected the date on which the

material terms were set by the parties. It did so based upon evidence in the record and

the Plaintiffs have failed to point to any evidence which detracts from this finding. The

court sustains Commerce’s date of sale determination.

Ordinary Course of Trade

Antidumping duties should be “an amount equal to the amount by which the

normal value exceeds the export price (or the constructed export price) for the

merchandise.” 19 U.S.C. § 1673. Thus, Commerce must calculate both a CEP and a

normal value. The statute defines normal value as the price of the subject merchandise

“at a time reasonably corresponding to the time of the sale used to determine the export

it could develop a practice in which shipment date would be the preferred date. See
Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,348-49 (Dep’t
Commerce May 19, 1997) (final rule) (rejecting shipment date as the uniform date of sale).
7
In its Issues and Decision Memorandum Commerce said “[i]t is the Department’s normal
practice not to consider dates subsequent to the date of shipment from the factory to the
customer as appropriate for the date of sale because once merchandise is shipped, the
material terms of sale are established.” Issues and Decision Memorandum at 28. At oral
argument POSCO argued that while this practice appeared to contradict Commerce’s
regulation, “in the last 16 years they have modified their practice.” Oral Arg. at 12:21:30,
Oct. 28, 2013, ECF No. 100. Modifying a regulation in this manner would not be
permissible. If Commerce has determined through subsequent implementation of the
regulation that a date other than the invoice date normally will better reflect the date of
sale there are adequate procedures for changing the regulation. See, e.g., Administrative
Procedure Act, 5 U.S.C. § 553 (2006).
Consol. Court No. 12-00071 Page 15

price or constructed export price,” 19 U.S.C. § 1677b(a)(1)(A), where the price is “the

price at which the foreign like product is first sold . . . for consumption in the exporting

country, in the usual commercial quantities and in the ordinary course of trade . . . .”

19 U.S.C. § 1677b(a)(1)(B). Thus, for Commerce to include a particular sale in its

calculation of a respondent’s normal value, the sale must have been made in the ordinary

course of trade. Congress defines ordinary course of trade as:

the conditions and practices which, for a reasonable time prior to the
exportation of the subject merchandise, have been normal in the trade
under consideration with respect to merchandise of the same class or kind.
The administering authority shall consider the following sales and
transactions, among others, to be outside the ordinary course of trade:
(A) Sales disregarded under section 1677b(b)(1) of this title.
(B) Transactions disregarded under section 1677b(f)(2) of this title.

19 U.S.C. § 1677(15).8

Other than for the two statutory exclusions mentioned above, the Tariff Act

provides “little assistance in determining what is outside the scope of that definition.” NSK

Ltd. v. United States, 25 CIT 583, 599, 170 F. Supp. 2d 1280, 1296 (2001). The court

has held that Commerce has discretion to determine what sales are outside the ordinary

course of trade. See, e.g., Bergerac, N.C. v. United States, 24 CIT 525, 536-37, 102 F.

Supp. 2d 497, 507 (2000); Torrington Co. v. United States, 25 CIT 395, 402-03, 146 F.

Supp. 2d 845, 861 (2001), aff’d, 62 Fed. Appx. 950 (Fed. Cir. 2003); U.S. Steel Group v.

United States, 25 CIT 1293, 1300, 177 F. Supp. 2d 1325, 1333 (2001). Commerce’s

8
Although not relevant here, sales disregarded under § 1677b(b)(1) are sales made at
prices less than the cost of production, 19 U.S.C. § 1677b(b)(1), and transactions
disregarded under § 1677b(f)(2) are transactions between affiliated parties. 19 U.S.C.
§ 1677b(f)(2).
Consol. Court No. 12-00071 Page 16

regulations in 19 C.F.R. § 351.102(b)(35)(2013) establish Commerce’s methodology for

evaluating when sales are made outside the ordinary course of trade:

[t]he Secretary may consider sales or transactions to be outside the ordinary
course of trade if the Secretary determines, based on an evaluation of all of
the circumstances particular to the sales in question, that such sales or
transactions have characteristics that are extraordinary for the market in
question. Examples of sales that the Secretary might consider as being
outside the ordinary course of trade are sales or transactions involving off-
quality merchandise or merchandise produced according to unusual
product specifications, merchandise sold at aberrational prices or with
abnormally high profits, merchandise sold pursuant to unusual terms of
sale, or merchandise sold to an affiliated party at a non-arm's length price.

19 C.F.R. § 351.102(b)(35)(2013). Therefore, Commerce may find that sales are outside

the ordinary course of trade if it determines that sales “have characteristics that are

extraordinary,” based on a totality of the circumstances. Id. See also NSK Ltd., 25 CIT

at 599, 170 F. Supp. 2d at 1296 (“Commerce’s methodology allows it, on a case-by-case

basis, to examine all conditions and practices which may be considered ordinary in the

trade under consideration and to determine which sales or transactions are, therefore,

outside the ordinary course of trade.”).

In applying its totality of the circumstances test, Commerce does not give

particular weight to any single factor. Instead, Commerce determines which factor may

be more or less significant based on the case at hand. See, e.g., Murata, 17 CIT at 263,

820 F. Supp. at 606. In making its determination, Commerce looks “at market conditions,

practices, and other sales” in the home market, U.S. Steel Group, 25 CIT at 1300, 177 F.

Supp. 2d at 1333, and “it then compares the transactions in question to see if they exhibit

characteristics that are extraordinary for the market.” Id. See also Mantex, Inc. v. United

States, 17 CIT 1385, 1403, 841 F. Supp. 1290, 1306 (1993). Commerce has discretion
Consol. Court No. 12-00071 Page 17

to determine when an unusual circumstance will render sales outside the ordinary course

of trade. See 19 C.F.R. § 351.102(b)(35)(2013); see also Koenig & Bauer-Albert AG v.

United States, 22 CIT 574, 589, 15 F. Supp. 2d 834, 850 (1998) (finding that “Commerce

has the discretion to decide under what circumstances highly profitable sales would be

considered to be outside of the ordinary course of trade.”), vacated on other grounds, 259

F.3d 1341 (Fed. Cir. 2001); NTN Bearing Corp. of Am. v. United States, 27 CIT 129, 169-

71, 248 F. Supp. 2d 1256, 1289-91 (2003) (finding that Commerce’s inclusion of

respondent’s sample sales and sales with high profits in the normal value calculation was

properly within Commerce’s discretion because the mere existence of an extraordinary

factor does not negate the totality of the circumstances test for determining whether sales

are representative of the home market).

In addition to the regulations, the court has commonly looked to the

Statement of Administrative Action (“SAA”) to discern Congress’ intent regarding ordinary

course of trade. See, e.g., Monsanto Co. v. United States, 12 CIT 937, 940, 698 F.Supp.

275, 278 (1988) (stating that the “commonly understood purpose of the ordinary course

of trade provision is to prevent dumping margins from being based on sales which are not

representative, for example, sales of obsolete merchandise.”). The SAA states that

Commerce may consider other types of sales or transactions to be outside
the ordinary course of trade when such sales or transactions have
characteristics that are not ordinary as compared to sales or transactions
generally made in the same market. Examples of such sales or transactions
include merchandise produced according to unusual product specifications,
merchandise sold at aberrational prices, or merchandise sold pursuant to
unusual terms of sale. As under existing law, amended section 771(15)
does not establish an exhaustive list, but the Administration intends that
Commerce will interpret section 771(15) in a manner which will avoid basing
normal value on sales which are extraordinary for the market in question,
Consol. Court No. 12-00071 Page 18

particularly when the use of such sales would lead to irrational or
unrepresentative results.

Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-

316, vol. 1, at 834 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4171 (“SAA”). Thus,

although Commerce’s regulations reflect some of the language of the SAA, the SAA

demonstrates a particular concern with extraordinary sales that would lead to “irrational

or unrepresentative results.” Id.

Finally, without “adequate evidence of extraordinary characteristics,” U.S.

Steel Group, 25 CIT at 1300, 177 F. Supp. 2d at 1333, Commerce presumes the

contested sales were made in the ordinary course and includes them in its margin

calculations. See, e.g., U.S. Steel Group, 25 CIT at 1300, 177 F. Supp. 2d at 1333;

Bergerac, 24 CIT at 538, 102 F. Supp. 2d at 509; NTN Bearing Corp. of Am. v. United

States, 19 CIT 1165, 1172, 903 F.Supp. 62, 68–69 (1995). The court has characterized

the burden imposed on the party challenging this presumption as requiring “a complete

explanation of the facts which establish the extraordinary circumstances rendering

particular sales outside the ordinary course of trade . . . .” NTN Bearing Corp. of Am v.

United States, 19 CIT 1221, 1229, 905 F.Supp. 1083, 1091 (1995). See also Bergerac,

24 CIT at 538, 102 F. Supp. 2d at 509; Koyo Seiko Co. v. United States, 20 CIT 772, 783,

932 F.Supp. 1488, 1497-98 (1996).

The court sustains Commerce’s determination that HYSCO’s NTR sales

were made within the ordinary course of trade as made in accordance with law and as

supported by substantial evidence. Commerce properly considered the totality of the

circumstances, including the number and types of customers that purchased NTR
Consol. Court No. 12-00071 Page 19

merchandise, the circumstances surrounding those sales, the average quantities

purchased, the channels of distribution, and terms of sale. Issues and Decision

Memorandum at cmt 3. It found that the number of customers was significant. Id. (citing

to HYSCO’s Rebuttal Brief at 17, CD II EXT_051205 (Jan. 17, 2012), ECF No. 32 (May

7, 2012)). It found “none of those customers were otherwise unique in their purchases,”

Issues and Decision Memorandum at cmt 3 (citing to HYSCO’s Rebuttal Brief at 17), and

found no evidence that the categories of customers for NTR sales were different from TR

sales. Issues and Decision Memorandum at cmt 3. Neither did Commerce find anything

unusual about the average purchase quantities. Id. It found no evidence that the terms

of sale or channels of distribution were different for NTR sales than for TR sales. Id. U.S.

Steel points to no evidence in the record that refutes any of these findings. See Mem.

Supp. Pl. U.S. Steel Mot. J. at 24-30. Commerce’s decision, based upon the totality of

the circumstances, that HYSCO’s NTR sales were not outside the ordinary course of

trade is therefore reasonable and made in accordance with law.

Instead of directly challenging Commerce’s factual findings on appeal, U.S.

Steel contends that Commerce’s inclusion of HYSCO’s NTR sales in the normal value

calculations was not in accordance with law. Id. at 25. U.S. Steel claims the SAA

standard is controlling, and that it requires Commerce to exclude extraordinary sales

when those sales produce irrational or unrepresentative results on the dumping margin.9

9
U.S. Steel argues the SAA “establishes that Commerce must not base its margin
calculations on sales that are ‘extraordinary for the market in question’ and cannot use
non-ordinary sales that lead to ‘irrational or unrepresentative results.’” Mem. Supp. Pl.
U.S. Steel Mot. J. at 26. As such, plaintiff argues “Commerce does not have any
discretion in the matter,” because when there exists “a class of extraordinary sales that
Consol. Court No. 12-00071 Page 20

See id. at 25-26. See also SAA at 834. U.S. Steel asserts that Commerce acted contrary

to law by “ignor[ing] the straightforward directive of the SAA,” Mem. Supp. Pl. U.S. Steel

Mot. J. at 25, because HYSCO’s home market NTR sales were “plainly extraordinary for

the market in question.” Id. at 26. In support of its argument that Commerce was required

to exclude HYSCO’s NTR sales, U.S. Steel makes two arguments. First, U.S. Steel

argues that [[ ]] between HYSCO’s home market TR and NTR sales

renders the NTR sales extraordinary. Id. at 26. Second, U.S. Steel argues that HYSCO’s

NTR “sales are extraordinary because they took place without leaving any paper (or

email) trail.” Id. at 27. Further, U.S. Steel asserts that HYSCO’s NTR sales have an

irrational effect on the dumping margin and, therefore, the SAA requires Commerce to

exclude them.10 Id. at 28.

U.S. Steel’s argument relies partly on the fact that [[ ]] of the time

HYSCO’s home market sales are TR. However, neither Commerce’s regulations nor the

by themselves produce an irrational result,” the SAA requires those sales to be excluded
from NV calculations. Id. at 26.
10
U.S. Steel contends
if the [[ ]] of sales that were designated as non-temper rolled were
classified as temper rolled, the dumping margin would have been over
[[ ]]. And if the [[ ]] of non-temper rolled sales had been excluded
from the margin calculation as outside the ordinary course of trade (i.e., so
that HYSCO’s dumping margin would be based on [[ ]] of its home
market sales that were not unusual), HYSCO’s dumping margin would have
been [[ ]].
Mem. Supp. Pl. U.S. Steel Mot. J. at 28. HYSCO questions U.S. Steel’s conclusion
regarding the impact these sales have on the margin. See Mem. Def.-Interv. HYSCO
Opp’n to Pl.’s Rule 56.2 Mot. J. at 28. HYSCO argues that “U.S. Steel's claimed result is
unsubstantiated in the record by a single computer program or calculation. Correctly
implementing the change that U.S. Steel suggests would require multiple changes
throughout the Department's programs, given the complexity of the Department's
calculations, and thus is highly prone to clerical error.” Id. at 29 n.5.
Consol. Court No. 12-00071 Page 21

SAA requires sales to be excluded because they are comparatively [[ ]] in volume, but

only if, for some reason, those sales are not representative of the market in question.

See NTN Bearing Corp. of Am., 27 CIT at 171, 248 F. Supp. 2d at 1291 (upholding

Commerce’s determination that respondent’s sample sales and high profit sales were in

the ordinary course of trade because there was no evidence that “the transactions at issue

possessed some unique and unusual characteristic that make them unrepresentative of

the home market. . . ”), appeal dismissed on motion to withdraw, 81 Fed. Appx. 318 (Fed.

Cir. 2003).11 Indeed, the court has explicitly held that a [[ ]] on its own,

is not enough to warrant a finding that the contested sales were made outside the ordinary

course of trade. See Murata, 17 CIT at 263-64, 820 F.Supp. at 606-07. See also Koyo

Seiko Co., 20 CIT at 783, 932 F.Supp. at 1498.

Some potentially extraordinary sales characteristics that Commerce might

consider in administering this test include sales where the merchandise is “off-quality,”

made with “unusual product specifications,” or “sold pursuant to unusual terms of sale.”

19 C.F.R. § 351.102(b)(2013). See also SAA at 834. All of these examples may involve

11
In NTN Corp. v. United States, plaintiff and respondent, NTN, argued Commerce
incorrectly treated its sample sales as made in the ordinary course of trade. 28 CIT 108,
136, 306 F. Supp. 2d 1319, 1344 (2004) aff’d, 125 Fed. Appx. 1011 (Fed. Cir. 2005).
NTN claimed “Commerce acknowledged that these sales were relatively few in number,
but then found that NTN's sample sales were not rare or uncommon.” NTN Corp., 28 CIT
at 136, 306 F. Supp. 2d at 1344. In rebutting Commerce’s rationale, NTN argued the
same thing as plaintiff herein. Specifically, NTN argued that a determination of whether
a particular sales’ factor is unusual should be based on a comparison of the contested
sales with overall sales. See NTN Corp., 28 CIT at 136, 306 F. Supp. 2d at 1344. The
court found that “Commerce reasonably exercised its discretion in requiring NTN to
provide evidence that its sample . . . sales were outside the ordinary course of trade.”
NTN Corp., 28 CIT at 139, 306 F. Supp. 2d at 1347.
Consol. Court No. 12-00071 Page 22

a relatively [[ ]] comparative volume of sales in the home market, but merely declaring

that there is a [[ ]] volume is not sufficient to show that the sales were extraordinary.

Commerce must consider the totality of circumstances in each case to determine whether

the sales or transactions at issue would not be representative of the market. See U.S.

Steel Group, 25 CIT at 1299, 177 F. Supp. 2d at 1332.

U.S. Steel argues that the NTR sales do have unusual physical and

production characteristics because they represent [[ ]] of HYSCO’s subject home

market sales and therefore they are, by definition, different from [[ ]] of HYSCO’s

subject home market sales both in terms of their physical characteristics and how they

are produced. Mem. Supp. Pl. U.S. Steel Mot. J. at 26. This argument, if accepted, would

inappropriately convert an inquiry concerning physical characteristics or production

process into a question of numbers. U.S. Steel makes no argument that the sales

themselves have unusual attributes, such as sales of off-quality merchandise, or of

merchandise made pursuant to unusual specifications. See id. at 26-29.

Second, U.S. Steel points to the lack of paper documentation for HYSCO’s

NTR sales to argue that they are “inherently unverifiable” and, as such, extraordinary. Id.

at 27-28. This contention fairs no better. Commerce found that the way in which the NTR

sales were made was not unusual. Issues and Decision Memorandum at cmt 3. In the

Issues and Decision Memorandum, Commerce found that “the number of customers that

purchase non-temper rolled merchandise is significant, and that none of those customers

were otherwise unique in their purchases of home market sales of subject merchandise

from HYSCO.” Issues and Decision Memorandum at cmt 3. U.S. Steel says nothing
Consol. Court No. 12-00071 Page 23

about whether the lack of a paper trail is unusual either for HYSCO or sales of NTR

merchandise in the home market generally. Mem. Supp. Pl. U.S. Steel Mot. J. at 27-28.

U.S. Steel then argues that, per the SAA standard, these sales should be

excluded because of their unrepresentative impact on the dumping margin. Id. at 28.

U.S. Steel contends that it would be irrational to allow [[ ]] of sales “to control the

outcome of a case . . . .” Id. at 28. U.S. Steel relies upon the language of the SAA which

provides that Commerce is to “avoid basing normal value on sales which are

extraordinary . . . particularly when the use of such sales would lead to irrational or

unrepresentative results.” SAA at 834. For Commerce to consider the impact of the sales

on the dumping margin, the language of the SAA first requires that the sales exhibit

extraordinary characteristics. However, if based on the totality of the circumstances,

Commerce, as it did here, appropriately finds that the contested sales were not

extraordinary then the impact of those sales on the margin is irrelevant.

Based on the foregoing, Commerce’s decision to reject U.S. Steel’s

argument that HYSCO’s NTR home market sales were outside the ordinary course of

trade was made in accordance with law and supported by substantial evidence.

Revocation

Congress provided for the revocation of an antidumping order in 19 U.S.C.

§ 1675(d). The statute provides in relevant part:

(d) Revocation of order or finding; termination of suspended investigation
(1) In general
The administering authority may revoke, in whole or in part, a
countervailing duty order or an antidumping duty order or finding, or
terminate a suspended investigation, after review under subsection
(a) or (b) of this section. . . .
Consol. Court No. 12-00071 Page 24

19 U.S.C. § 1675(d). Commerce’s regulations set forth the requirements for a request

for revocation.

(e) Request for revocation or termination—
(1) Antidumping proceeding. During the third and subsequent
annual anniversary months of the publication of an antidumping
order or suspension of an antidumping investigation, an exporter or
producer may request in writing that the Secretary revoke an order
or terminate a suspended investigation under paragraph (b) of this
section with regard to that person if the person submits with the
request:
(i) The person’s certification that the person sold the subject
merchandise at not less than normal value during the period of
review described in §351.213(e)(i), and that in the future the person
will not sell the merchandise at less than normal value;
(ii) The person’s certification that, during each of the consecutive
years referred to in paragraph (b) of this section, the person sold the
subject merchandise to the United States in commercial quantities;
and
(iii) If applicable, the agreement regarding reinstatement in the order
or suspended investigation described in paragraph (b)(2)(iii) of this
section.

19 C.F.R. § 351.222(e)(1)(2013). Commerce’s regulations discuss Commerce’s

determination when to revoke in part:

(2)(i) In determining whether to revoke, an antidumping duty order in part,
the Secretary will consider:
(A) Whether one or more exporters or producers covered by the
order have sold the merchandise at not less than normal value for a
period of at least three consecutive years;
(B) Whether, for any exporter or producer that the Secretary
previously has determined to have sold the subject merchandise at
less than normal value, the exporter or producer agrees in writing to
its immediate reinstatement in the order, as long as any exporter or
producer is subject to the order, if the Secretary concludes that the
exporter or producer, subsequent to the revocation, sold the subject
merchandise at less than normal value; and
(C) Whether the continued application of the antidumping order is
otherwise necessary to offset dumping.
Consol. Court No. 12-00071 Page 25

(ii) If the Secretary determines, based upon the criteria in paragraphs
(b)(2)(i)(A) through (C) of this section, that the antidumping duty order as to
those producers or exporters is no longer warranted, the Secretary will
revoke the order as to those producers or exporters.

19 C.F.R. § 351.222(b)(2)(i)-(ii) (language effective until June 20, 2012).

The statute “provides minimal guidance” to Commerce and is “silent as to

the conditions that might warrant the revocation of an antidumping duty order or the

particular circumstances that would trigger such an action.” Sahaviriya Steel Indus. Pub.

Co. v. United States, 649 F.3d 1371, 1376 (Fed. Cir. 2011). Thus, Commerce has

discretion in making a revocation determination including whether the requesting party

satisfied the criteria for revocation. See, e.g., Feili Group (Fujian) Co., v. United States,

34 CIT __, __, 724 F. Supp. 2d 1358, 1369 (2010).

Commerce’s determination is supported by substantial evidence and in

accordance with law. Commerce explained that it was satisfied POSCO fulfilled the 19

C.F.R. § 351.222(e) certification requirements. Issues and Decision Memo at cmt 5, n.78

(citing POSCO Letter to the Dept., PD I 4 (Aug. 31, 2010), ECF No. 32 (May 7, 2010)).

Next, Commerce applied the criteria in 19 C.F.R. § 351.222(b)(2)(i) (language effective

until June 20, 2012). It was undisputed that POSCO had de minimis margins for three

consecutive years. Commerce found that POSCO had sold “at not less than normal value”

for those years. 19 C.F.R. § 351.222(b)(2)(i)(A) (language effective until June 20, 2012);

Issues and Decision Memorandum at cmt 5, nn.79-80. Commerce presumes continued

application of the order is unnecessary after three consecutive findings of an absence of

dumping unless the petitioner comes forward with information to rebut. Id. at n.82 (citing

Amended Regulation Concerning the Revocation of Antidumping and Countervailing Duty
Consol. Court No. 12-00071 Page 26

Orders, 64 FR 51236 (Sept. 22, 1999)). Commerce’s application of its standard is

reasonable.

Plaintiffs’ arguments that revocation was unsupported by substantial

evidence or otherwise not in accordance with law are unavailing. First, as discussed

above, Plaintiffs’ claim that the revocation was based in part on Commerce’s erroneous

date of sale determination lacks merit.

Second, Plaintiffs argue that Commerce failed to address record evidence

of specific market and economic factors which showed a likelihood of future dumping and

thus that the continued application of the dumping order was necessary. Without nuance,

U.S. Steel argues that POSCO’s increasing production capacity and other business

practices along with lost market share by domestic producers show a likelihood of future

dumping. Mem. Supp. Pl. U.S. Steel Mot. J. at 23-24. In greater detail, Nucor argues

that future dumping is likely because: (i) the economic downturn made the last three

reviews unrepresentative, (ii) POSCO’s shipment volumes and market share in Korea

have declined while its production has increased, and (iii) it has established a “strategic

partnership” with Union Steel Manufacturing Co. Ltd. (another respondent). Br. Supp.

Nucor 56.2 Mot. at 12-16. However, assertions of market conditions are not evidence

that the order is “otherwise necessary to offset dumping.” 19 C.F.R. § 351.222(b)(2)(i)

(language effective until June 20, 2012). Plaintiffs would have Commerce speculate that

these facts support the conclusion that POSCO is likely to sell at less than normal value

in the future. While Commerce must “address significant arguments and evidence which

seriously undermine its reasoning and conclusion” it does not need to address every
Consol. Court No. 12-00071 Page 27

assertion made by the petitioners. Altx, Inc. v. United States, 25 CIT 1100, 1117-1118,

167 F.Supp.2d 1353, 1374 (2001), aff’d, 370 F.3d 1108 (Fed. Cir. 2004); see also 19

U.S.C. § 1677f(i)(3)(A). Here, where the assertions do no more than ask Commerce to

speculate, it is reasonable to conclude that Commerce considered the assertions and did

not credit them.

Finally, Nucor argues that Commerce was unable to complete verification

with regard to POSCO and thus, its determination was unsupported by substantial

evidence and otherwise not in accordance with law. Commerce has discretion in how it

conducts its verification process. See Floral Trade Council v. United States, 17 CIT 392,

398-99, 822 F. Supp. 766, 771-72 (1993). In its Issues and Decision Memorandum,

Commerce correctly notes that it is “afforded [] a degree of latitude in implementing its

verification procedures, and that the Department is not required to verify each item

submitted in respondents’ questionnaire.” Id. at cmt 5, n.88; see also Floral Trade

Council, 17 CIT at 399, 822 F. Supp. 2d at 772 (internal citations omitted). Contrary to

Nucor’s assertion that Commerce must conduct a “completeness test,” Br. Supp. Nucor

56.2 Mot. at 11-12, “verification is an audit process that selectively tests accuracy and

completeness of a respondent’s submissions.” Issues and Decision Memorandum at cmt

5, n.89 (citing Bomont Indus. v. United States, 14 CIT 208, 209, 733 F.Supp 1507, 1508

(1990)); see also Floral Trade Council, 17 CIT at 398, 822 F. Supp. at 771. Although

verification was not completed, it did not need to be complete for this court to sustain

Commerce’s finding. See Floral Trade Council, 17 CIT at 399-400, 822 F. Supp. at 772;

Hercules, Inc. v. United States, 11 CIT 710, 726, 673 F.Supp. 454, 469-70 (1987)).
Consol. Court No. 12-00071 Page 28

Therefore, Commerce’s decision to revoke the order with respect to

POSCO is supported by substantial evidence and in accordance with law.

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for judgment on the agency

record is denied. Judgment will be entered accordingly.

___/s/ Claire R. Kelly
Claire R. Kelly, Judge

Dated: December 27, 2013
New York, New York