Nippon Steel Corp. v. United States

Slip Op. 00-137
UNITED STATES COURT OF INTERNATIONAL TRADE

:
NIPPON STEEL CORPORATION, :
:
Plaintiff, :
:
v. :
:
THE UNITED STATES, :
:
Defendant, :
:
and :
:
BETHLEHEM STEEL CORPORATION, :
U.S. STEEL GROUP, A UNIT OF USX :
CORPORATION, ISPAT INLAND INC., :
LTV STEEL COMPANY, INC.; GALLATIN :
STEEL, IPSCO STEEL, INC., STEEL :
DYNAMICS, INC., and WEIRTON STEEL :
CORPORATION, :
:
Defendant-Intervenors. :
: Consolidated Court
: No. 99-08-00466
BETHLEHEM STEEL CORPORATION, :
U.S. STEEL GROUP, A UNIT OF USX :
CORPORATION, ISPAT INLAND INC., :
and LTV STEEL COMPANY, INC. :
:
Plaintiffs, :
:
v. :
:
THE UNITED STATES, :
:
Defendant, :
:
and :
:
NIPPON STEEL CORPORATION, :
:
Defendant-Intervenor. :
:

[ITA Antidumping Duty Determination Remanded.]

Dated: October 26, 2000
CONSOL. COURT NO. 99-08-00466 PAGE 2

Gibson, Dunn & Crutcher LLP (Daniel J. Plaine, Gracia M.
Berg, Merritt R. Blakeslee, Seth M. M. Stodder, J. Christopher
Wood, Albert Kim and Gregory S. Menegaz) for plaintiff Nippon
Steel Corporation.
Skadden, Arps, Slate, Meagher & Flom LLP (Robert E.
Lighthizer, John J. Mangan, Ellen J. Schneider, Hans F. Bader
and Scott B. Nardi) for plaintiffs Bethlehem Steel
Corporation, U.S. Steel Group, a unit of USX Corporation,
Ispat Inland Inc. and LTV Steel Company, Inc.

David W. Ogden, Assistant Attorney General, David M.
Cohen, Director, Commercial Litigation Branch, Civil Division,
United States Department of Justice (Kyle E. Chadwick), John
D. McInerney, Elizabeth C. Seastrum, and Linda S. Chang,
Office of the Chief Counsel for Import Administration, United
States Department of Commerce, of counsel, for defendant.

Schagrin Associates (Roger B. Schagrin) for defendant-
intervenors Gallatin Steel, IPSCO Steel, Inc., Steel Dynamics,
Inc. and Weirton Steel Corp.

OPINION

RESTANI, Judge: This matter is before the court on

motions for judgment on the administrative record filed by

both Nippon Steel Corporation (“NSC”), Japanese respondent in

an antidumping duty investigation, and Bethlehem Steel

Corporation, U.S. Steel Group, Ispat Inland, Inc., and LTV

Steel Company, Inc. (“U.S. Companies” or “Petitioners”),

domestic petitioners before the United States Department of

Commerce (“Commerce” or “the Department”). At issue is Hot-

Rolled Flat-Rolled Carbon-Quality Steel Products from Japan,

64 Fed. Reg. 24,329 (Dep’t Comm. 1999) [hereinafter “Final

Results”].

Because of Commerce’s failure to make timely memoranda of

its ex parte meetings with Petitioners and other alleged
CONSOL. COURT NO. 99-08-00466 PAGE 3

procedural flaws, NSC seeks vacation of the outstanding

antidumping order and reinvestigation ab initio.

Alternatively, NSC seeks the following: discovery as to the

ex parte meetings; declaration that preliminary critical

circumstances determinations may not be based on mere

allegations; and remand for explanation by Commerce as to its

deviations from past procedural practices, for use of

electricity costs based on sales from affiliated cooperatives,

and for use of NSC’s weight conversion factor data. The U.S.

companies seek remand for Commerce to use the dollar

denominated price for NSC’s U.S. sales.

STATEMENT OF FACTS
On September 30, 1998, a group of domestic steel

producers filed a petition with the Department pursuant to

section 732(b) of the Tariff Act of 1930 (the “Act”), 19

U.S.C. § 1671a(b) (1994), alleging that hot-rolled, flat-

rolled, carbon-quality steel (“hot-rolled steel”) from Japan

and other countries was being dumped in the United States,

injuring a domestic industry. See P.R. Doc. 2, DOC App. Tab

1.1 In addition to alleging injurious dumping, the petition

provided evidence - including official United States import

1“P.R. Doc” and “C.R. Doc.” refer to documents on the
public and confidential records, respectively. “DOC App., Tab
__, at __” refers to tabs and pages, respectively, of
Commerce’s appendix. Materials in NSC’s appendix are cited as
“NSC App., Tab ___, at ___.”
CONSOL. COURT NO. 99-08-00466 PAGE 4

and tariff data, an expert affidavit, and results of foreign

market research - intended to support the proposition that

Japanese producers made sales in Japan at prices below their

fully allocated costs of production. See id. at 22-24; C.R.

Doc. 1, DOC App. Tab 2; C.R. Doc. 3, DOC App. Tab 3. The

petition further alleged that critical circumstances existed

as to imports from Japan within the meaning of the Act. See

P.R. Doc 2, DOC App. Tab 1, Fi. 14. In support of their

critical circumstances allegation, the petitioners cited

estimated dumping margins exceeding Commerce’s normal

threshold of 25 percent (to demonstrate importers’ knowledge

of dumping), trade data and press reports indicating massive

imports over a short period of time, and evidence of harm to

the domestic industry. See id. at 3-12 and Exhs. 1-3.
On October 22, 1998, in response to the information

presented in the petition, Commerce published its notice of

initiation of the antidumping investigation underlying this

litigation. Certain Hot-Rolled Flat-Rolled Carbon-Quality

Steel Products From Brazil, Japan, and the Russian Federation,

63 Fed. Reg. 56607 (Dep’t Commerce 1998) [hereinafter

“Initiation of Antidumping Invest.”]. At the same time,

Commerce initiated below cost and critical circumstances

investigations with respect to Japanese hot-rolled steel. Id.
CONSOL. COURT NO. 99-08-00466 PAGE 5

at 56,612-13. In accordance with a newly adopted policy,2

Commerce stated that it would make a critical circumstances

determination “as soon as practicable,” as opposed to waiting

for the preliminary determination to be issued. Id. at

56,613.

Commerce initially issued section A of its antidumping

questionnaire to the six Japanese steel producers identified

in the petition.3 Because Commerce determined, however, that

it feasibly could not examine all six, on October 30, 1998, it

selected NSC and two other producers as respondents, based

upon production volume, and advised the remaining companies

that they need not respond. See Hot-Rolled Flat-Rolled

Carbon-Quality Steel Products from Japan, 64 Fed. Reg. 8291,

8292 (Dep’t Comm. 1999) [hereinafter “Preliminary Results”].

On the same day, Commerce issued sections B through E of its

antidumping questionnaire to the three respondents. Id.
On November 16, 1998, the United States International

Trade Commission (“ITC”) notified the Department of its

affirmative preliminary finding of threat of material injury

in this case. Certain Hot-Rolled Steel Products From Brazil,

2 See Change in Policy Regarding Timing of Issuance of
Critical Circumstances Determinations, 63 Fed. Reg. 55,364
(Dep’t Commerce 1998) (Policy Bulletin 98/4) [hereinafter
“Critical Circumstances Timing”].
3 The six producers were NSC, NKK Corporation, Kawasaki
Steel Corporation, Kobe Steel, Ltd., Sumitomo Metal
Industries, Ltd., and Nisshin Steel Co., Ltd.
CONSOL. COURT NO. 99-08-00466 PAGE 6

Japan and Russia, 63 Fed. Reg. 65,221 (ITC 1998) (prelim.

injury determ.).
On November 30, 1998, Commerce issued a preliminary

determination that critical circumstances existed. Certain

Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From

Japan and the Russian Federation, 63 Fed. Reg. 65,750 (Dep’t

Comm. 1998) (prelim. determ. of crit. circumstances)

[hereinafter “Prelim. Determ. of Critical Circumstances”].

Commerce determined preliminarily that it should impute to the

Japanese importers the critical circumstances factor of

knowledge of dumping, see 19 U.S.C. § 1673b(e)(1)(A)(ii),

because the petition supported margins greater than the

Department’s customary 25 percent threshold. Prelim. Determ

of Critical Circumstances, 63 Fed. Reg. at 65,750. Further,

Commerce found that the combination of the ITC’s November 16

preliminary finding and press reports of rising imports,

falling domestic prices, and market share gains by foreign

suppliers provided a reasonable basis to believe or suspect

preliminarily that the importers knew or should have known of

“likely injury” from dumping. Id.

With respect to the critical circumstances factor of

“massive” imports, 19 U.S.C. § 1673b(e)(1)(B), Commerce found,

first, that press reports sufficiently established that by the

end of April 1998, importers, exporters, or producers knew or

should have known that an antidumping proceeding concerning
CONSOL. COURT NO. 99-08-00466 PAGE 7

hot-rolled products from Japan was likely. Prelim. Determ. of

Critical Circumstances, 63 Fed. Reg. at 65,751.4 Accordingly,

pursuant to 19 C.F.R. § 351.206(i) (2000), Commerce compared

import volumes from May through September 1998 to import

volumes in the period December 1997 through April 1998 (the

immediately preceding five months). See Prelim. Determ. of

Critical Circumstances, 63 Fed. Reg. at 65,751. Because it

found that imports of hot-rolled steel from Japan increased by

more than 100 percent between the two periods, Commerce found

preliminarily that there had been massive imports within a

relatively short period of time. Id. In light of its

findings with respect to knowledge of dumping, knowledge of

likely injury, and massive imports, Commerce preliminarily

found a reasonable basis to believe or suspect that critical

circumstances existed with respect to Japanese hot-rolled

steel imports. See id.
From November 16, 1998 through January 25, 1999, the

Department received responses to initial and supplemental

questionnaires. Questionnaire section B requested, among

other things, figures that the Department could use to convert

sales made at actual and theoretical weights, respectively, to

a common basis (“conversion factor data”). See C.R. Doc. 40,

DOC App., Tab 5, at B-22. NSC, in a response dated December

4 Here, the Department cited the staff’s critical
circumstances memorandum, P.R. Doc 115, DOC App., Tab 4, at 3-
4 (citing press reports).
CONSOL. COURT NO. 99-08-00466 PAGE 8

22, 1998, did not provide that data, asserting instead that

Commerce did not need a “uniform quantity of measure” because

“[a]ll NSC quantity types are consistent within the product

type.” Id. In its January 26, 1999 response to a

supplemental request, NSC stated that steel coils sold at

theoretical weight (i.e., estimated weight, based upon

dimensions) “are never actually weighed” and, thus, NSC had

“no way of calculating” the requested conversion factor. P.R.

Doc 196, DOC App., Tab 6, at B-24. As discussed below, NSC

now admits that its initial and supplemental responses were

incorrect.

NSC timely reported its gross unit prices for U.S. sales

in dollars. See C.R. Doc. 40, DOC App., Tab 5, at C-19. It

also reported net prices in yen for each sale, which NSC and

its customers derived by discounting the invoiced dollar

amount by the standard discount rate, then converting to yen

at the exchange rate applicable on the ninth day after

shipment. See id. at C-22. NSC’s invoices reflect both the

gross dollar price and the net yen price. Id. Commerce

verified that NSC received payments in yen, and that NSC

internally recorded the accounts receivable in yen. See C.R.

Doc. 127, NSC App., Tab 21, at 2-5.

On February 19, 1999, Commerce published its preliminary

dumping determination. Preliminary Results, 64 Fed. Reg. at

8291. Among other findings, the Department preliminarily
CONSOL. COURT NO. 99-08-00466 PAGE 9

assigned an adverse (highest calculated) margin to sales made

by NSC upon a theoretical weight basis because “NSC did not

provide conversion factors for these U.S. sales upon the

Department’s request . . . .” Id. at 8298.
Four days later, on February 23, 1999, NSC submitted a

theoretical-to-actual weight conversion factor with no

explanation for its lateness. See C.R. Doc. 108, NSC App.,

Tab 24, at 6. On March 2, 1999, NSC submitted preverification

changes and raw backup data supporting a corrected conversion

factor. See C.R. Doc. 118, NSC App., Tab 35, at 2-3. NSC

stated that its prior misstatement that actual weights were

unavailable was “based on a factual misunderstanding” by NSC

personnel. Id. at 3.

Commerce conducted cost and sales verifications of NSC on

March 1 through 5 and March 8 through 12, 1999, respectively.

See C.R. Doc. 125, NSC App., Tab 22 (cost); C.R. Doc. 127, NSC

App., Tab 21 (sales). Because NSC had not timely provided

weight conversion data, Commerce informed NSC at verification

that it would not accept or verify the conversion factor or

supporting data. See Final Results, 64 Fed. Reg. at 24,361.

Verification reports were issued on March 26. See C.R. Doc.

125, NSC App., Tab 22 (cost report); C.R. Doc. 127, NSC App.,

Tab 21 (sales report).

On April 12, 1999, Commerce excluded from the case

record, NSC’s late submissions containing the weight
CONSOL. COURT NO. 99-08-00466 PAGE 10

conversion factor and the supporting data. P.R. Doc 319, NSC

App., Tab 26, at 3. After briefing, a public hearing was held

on April 21, 1999. P.R. Doc 343. Thereafter, Commerce placed

on the record memoranda memorializing that nine ex parte

meetings related to the investigation had taken place. C.R.

Docs. 344-352, NSC App., Tab 27.

In its May 6, 1999 final determination, Commerce made

five determinations pertinent to this case. First, Commerce

used the yen value listed on NSC’s invoices as the starting

point for determining NSC’s U.S. prices, upon the grounds that

the yen figure was the amount “paid by NSC’s customers.”

Final Determination, 64 Fed. Reg. at 24,345. As in the

preliminary determination, Commerce converted this value to

dollars at the exchange rate effective on the shipment date.

See id.
Second, in response to NSC’s complaints of undocumented

and/or improperly documented ex parte communications, Commerce

stated that it had “provided NSC with all information relied

upon in the investigation.” Id. at 24,347. The Department

found, in addition, that NSC was not prejudiced by any delay

in placing ex parte memoranda on the record because (a) the

Department had not obtained “new information” in the

memorialized conversations, and (b) “all information was

discussed on the record.” Id.
CONSOL. COURT NO. 99-08-00466 PAGE 11

Third, pursuant to 19 U.S.C. § 1677b(f)(2), Commerce

disregarded, for purposes of calculating sales margin, amounts

that NSC paid to affiliated electric power cooperatives for

its power supplies. See id. at 24,349. Instead, Commerce

imputed the generally higher electricity prices of NSC’s

unaffiliated suppliers, finding that unaffiliated utilities

supplied the “identical input” in “the market under

consideration.” Id.

Fourth, Commerce confirmed its rejection of NSC’s

conversion factor data and assigned a margin to the affected

sales based upon facts available. See id. at 24,360-61.

Finding that NSC had failed to act to the best of its ability

with respect to the factor because it could have provided the

factor when originally requested, Commerce drew an adverse

inference in assigning that margin. See id. at 24,361-62.

Finally, Commerce made a negative critical circumstances

determination for NSC based, at least in part, upon the margin

assigned to the company. See id. at 24,337; C.R. Doc. 167,

NSC App., Tab 30, at 2.

On June 23, 1999, the ITC published its final

determination that dumping of Japanese hot-rolled steel caused

material injury to a domestic industry. Certain Hot-Rolled

Steel Products From Japan, 64 Fed. Reg. 33,514 (ITC 1999)

(final injury determ.). The ITC found, however, that critical

circumstances did not exist. See id. On June 29, 1999,
CONSOL. COURT NO. 99-08-00466 PAGE 12

Commerce published its antidumping duty order and announced in

accordance with the ITC’s negative critical circumstances

decision that it would direct the release of shipments entered

prior to its preliminary dumping determination, without the

assessment of antidumping duties. Certain Hot-Rolled, Flat-

Rolled Carbon-Quality Steel Products From Japan, 64 Fed. Reg.

34,778, 34,780 (Dep’t Comm. 1999) (antidumping duty order).

Bethlehem and NSC timely filed actions contesting Commerce’s

final determination pursuant to 19 U.S.C. § 1516a(a)(2).

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C.

§ 1581(c). In reviewing antidumping duty determinations,

courts “must sustain ‘any determination, finding or conclusion

found’ by Commerce unless it is ‘unsupported by substantial

evidence on the record, or otherwise not in accordance with

the law.’” Fujitsu Gen’l Ltd. v. United States, 88 F.3d 1034,

1038 (Fed. Cir. 1996) (quoting 19 U.S.C. § 1516a(b)(1)(B)).

DISCUSSION

1.
I. Ex Parte Meetings

There is no dispute that petitioner engaged in ex parte

meetings with Commerce officials, including the Secretary.

There also appears to be no serious dispute that memoranda

were not placed on the record memorializing all of those

meetings. It also appears that the memoranda that were filed
CONSOL. COURT NO. 99-08-00466 PAGE 13

were drafted months after the meetings by persons not in

attendance. They clearly are truncated and were placed on the

record on or about the day of the final determination.5
Commerce argues that the meetings were not covered by the

ex parte meetings provisions of the antidumping laws because

they did not involve the dissemination of factual information

to Commerce. The Department further insists that any flaws in

its procedures were harmless error because any factual

information received was already in the record or was not

relied upon by the decision-makers.

Under 19 U.S.C. § 1677f(a)(3), the Department must

maintain a record of any ex parte meeting between -
(A) interested parties or other persons providing
factual information in connection with a
proceeding, and
(B) the person charged with making the
determination, or any person charged with making
a final recommendation to that person, in
connection with that proceeding,
if information relating to that proceeding was
presented or discussed at such meeting.

19 U.S.C. § 1677f(a)(3). See Melamine Chems., Inc. v. United

States, 8 CIT 105, 108 & n.6, 592 F. Supp. 1338, 1341-42 & n.6

(1984)(setting forth rule); Gilmore Steel Corp. v. United

States, 7 CIT 219, 229, 585 F. Supp. 670, 679 (1984) (“Ex

parte communications per se are thus not improper . . . , but

a record of them must be maintained and made available.”)

5
The documents are all dated April 28, 1999, but the
parties do not dispute that they were placed in the record
only at the time of the determination.
CONSOL. COURT NO. 99-08-00466 PAGE 14

(citation omitted). Cf. GSA, S.R.L. v. United States, 77 F.

Supp. 2d 1349, 1358 (Ct. Int’l Trade 1999) (ex parte

communication of purely legal arguments need not be

memorialized or disclosed).
The memoranda memorializing each such ex parte

communication must include “the identity of the persons

present at the meeting, the date, time, and place of the

meeting, and a summary of the matters discussed or submitted.”

19 U.S.C. § 1677f(a)(3) (emphasis added). The memoranda must

be included in the official “record of the proceeding,” id.,

and must be available for inspection and copying. 19 C.F.R.

§ 351.104(b). Any memoranda detailing ex parte communications

must be a part of the record for judicial review. 19 U.S.C.

§ 1516a(b)(2)(A). See also Sachs Auto. Prods. Co. v. United

States, 17 CIT 290, 291-92 (1993) (setting forth requirement).
From press reports and Commerce’s summaries of some

meetings, it is clear that factual information was conveyed.6

Petitioners were clearly seeking relief and, at the very

least, made numerous factual statements about the condition of

6
See C.R. Docs. 344-352, NSC App., Tab 27, and Exhibits
1 through 11 to NSC’s moving brief. Because the record is not
complete in this regard, the court takes notice of the press
reports submitted by NSC. See Citizens to Preserve Overton
Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (full
administrative record necessary for judicial review),
overruled on other grounds, Califano v. Sanders, 450 U.S. 99,
105 (1977); F.lli De Cecco di Filippo Fara San Martino S.p.A.
v. United States, 21 CIT 1124, 980 F. Supp. 485 (1997)
(parties permitted to submit information to complete record).
CONSOL. COURT NO. 99-08-00466 PAGE 15

the U.S. industry. This factual information is highly

relevant to critical circumstances findings. See 19 U.S.C.

§§ 1673b(e) & 1673d(a)(3). Commerce does not dispute this in

any serious way. Rather, it argues nothing was added to the

record that was not included in some other manner.

Whether or not information is in the record via the

petition or otherwise, Commerce is not entitled to choose

which covered ex parte meetings it will memorialize, based on

its own identification of redundancies. Parties are entitled

to know when and how information was conveyed; they should not

have to rely on subtle judgments by Commerce officials or

employees about whether factual information is important, is

already in the record in some other form, or is even useful to

the agency or to the parties. All Commerce was required to

do was to have timely memoranda drafted and filed so that

parties could review them at some useful point during the

proceeding. Placing a few very summary memoranda on the

record after all decision-making is complete is useless and

disrespectful of the administrative process, as well as

violative of the statute. By requiring that the memoranda be

available for “inspection,” the statute requires that the

parties to the proceeding be able to inspect the memoranda so

that they may comment on the factual data contained therein or

ask for more detailed memoranda, if those placed on the record

are not informative. See Weiland-Werke AG v. United States, 4
CONSOL. COURT NO. 99-08-00466 PAGE 16

F. Supp. 2nd 1207, 1212-13 (Ct. Int’l Trade 1998) (parties

must be allowed to comment on information obtained by

Commerce). See also 19 U.S.C. § 1677m(g) (requiring

“opportunity to comment on the information obtained by the

administrative authority”). Commerce’s disregard as to timing

does not serve procedural due process or the goal of

transparency, as required by the statute.

The court, however, will not vacate the final

determination and subsequent order based on Commerce’s error,

as requested by NSC. It is likely that in this case the error

that is obvious was harmless,7 and NSC did not establish that

any new factual information was submitted on matters related

to margin calculation, such as date of sale. NSC did not seek

discovery in a timely manner to prove its case. NSC waited to

ask for discovery as an alternative remedy in its dispositive

motion. NSC should have asked for discovery in order to

support its dispositive motion, and to complete the record for

the motion if it believed the record was incomplete without

the memoranda. See Nat. Res. Def. Council, Inc. v. Train, 519

F.2d 287, 291-2 (D.C. Cir. 1975) (overturning district court’s

review of agency action based on incomplete administrative

record); Saha Thai Steel Pipe Co., Ltd. v. United States, 11

7 The final critical circumstances decision was in NSC’s
favor. See Antidumping Duty Investigations of Certain Hot-
Rolled Flat-Rolled Carbon-Quality Steel Products from Japan;
Final Determination of Critical Circumstances (April 28,
1999), C.R. Doc. 167, NSC App., Tab 30, at 2.
CONSOL. COURT NO. 99-08-00466 PAGE 17

CIT 257, 259, 261, 661 F. Supp. 1198, 1202-03 (discovery

outside administrative record may be had upon a showing that

record is incomplete), amend. denied, 11 CIT 392, 661 F. Supp.

1203 (1987).
Commerce, however, does not admit its clear violation of

the statute. The Department was provided an opportunity by

the court to avoid an injunction by issuing a policy statement

that effectively affirmed the agency’s commitment to act in

accordance with the terms of the statute. In particular, the

Department under such a policy guideline would place on the

record memoranda of ex parte meetings where factual

information pertinent to the proceedings is received, so that

parties may access such information during an investigation.

Notwithstanding this opportunity to avoid an injunction by

stating simply and publicly that it would follow the express

provisions of its governing statute, as required by law,

Commerce has not done so. Nor has it provided any indication

to the court that it will do so in the future.

Accordingly, the court determines that (1) it is likely

that Commerce will continue to violate 19 U.S.C. § 1677f(a)(3)

either in this ongoing proceeding or other proceedings;

(2) the error is not easily repaired; late memoranda may not

be accurate and it is costly, not only in monetary terms, but

in terms of administrative and judicial time and effort to

make repair efforts; (3) public policy requires correction of
CONSOL. COURT NO. 99-08-00466 PAGE 18

this practice; and (4) no harm will befall defendant by

complying. Therefore, the Assistant Secretary for Import

Administration shall issue instructions that ex parte

memoranda required by 19 U.S.C. § 1677f(a)(3) will be drafted

expeditiously in all cases, reviewed by a person in attendance

at the meeting, and placed in the record as soon as possible,

so that parties may comment effectively on the factual matters

presented. The memoranda are required whether or not the

factual information received was received previously, is

expected to be received later in the proceedings, or is

expected to be used or relied on.

II. Preliminary Critical Circumstances Determination

Although the Final Critical Circumstances Determination

was negative, NSC asked that the standards for preliminary

determinations be declared because this is an issue that is

capable of repetition and is likely to evade review. See

Southern Pac. Term. Co. v. ICC, 219 U.S. 498, 515 (1911);

Associacao dos Industriais de Cordoaria e Redes v. United

States, 17 CIT 754, 759, 828 F. Supp. 978, 984 (1993) (“Relief

may exist for controversies that appear moot, but are ‘capable

of repetition, yet evade review.’”) (citation omitted). The

parties appear to be in agreement that this test is met and

the court has jurisdiction to review the matter. Because

affirmative preliminary determinations are supplanted by final

determinations, which may be negative, as in this case, the
CONSOL. COURT NO. 99-08-00466 PAGE 19

court agrees that the standards for preliminary critical

circumstances determinations may be reviewed.
Under 19 U.S.C. § 1673b(e), before making a preliminary

critical circumstances determination, the Department must

determine, on the basis of the information available
to it at the time, whether there is a reasonable
basis to believe or suspect that –

(A)(i) there is a history of dumping and
material injury by reason of dumped imports in
the United States or elsewhere of the subject
merchandise, or

(ii) the person by whom, or for whose account,
the merchandise was imported knew or should have
known that the exporter was selling the subject
merchandise at less than its fair value and that
there was likely to be material injury by reason
of such sales, and

(B) there have been massive imports of the
subject merchandise over a relatively short
period.

19 U.S.C. § 1673b(e)(1) (emphasis added).
On November 23, 1998, Commerce made a preliminary

critical circumstances determination, finding that there was a

“reasonable basis to believe or suspect that importers knew or

should have known that material injury from dumped merchandise

was likely.” Prelim. Determ. of Critical Circumstances, 63

Fed. Reg. at 65,750.8 Prior to this investigation, Commerce

made its critical circumstances determination based on all

information gained up to the time of the preliminary

8 A finding of critical circumstances allows the
imposition of duties from the time of initiation of the
investigation. See 19 U.S.C. § 1673b(e)(2).
CONSOL. COURT NO. 99-08-00466 PAGE 20

determination. After the proceeding at issue was commenced

Commerce issued a policy statement permitting earlier critical

circumstances determinations. See Critical Circumstances

Timing, 63 Fed. Reg. at 55,364. See also 19 C.F.R.

§ 351.206(c). NSC argues that this new policy allowed

Commerce to make its preliminary critical circumstances

determination without investigating petitioners’ allegations

and that the only support for the determination was the bare

allegations of the petition. There is nothing in the statute

which prohibits the early issuance of the determinations. In

fact, because the petition alleged critical circumstances,

Commerce was permitted to make the determination after

commencement of the investigation based on any information

available to it. See 19 U.S.C. § 1673b(e)(1).
Further, while Commerce admits it relied largely on

petition information, that information was more than bare

allegations. It contained public import information, trade

reports and surveys, news reports, and an affidavit.

Apparently, Commerce also obtained some additional information

and, without conducting a formal verification, attempted to

confirm the essential allegations of the petition. See

Initiation of Antidumping Invest., 63 Fed. Reg. at 56,613.

Here, in its preliminary critical circumstances

determination, Commerce found a massive surge in import

volumes in which “imports of hot-rolled steel from Japan
CONSOL. COURT NO. 99-08-00466 PAGE 21

increased by more than 100 percent . . . . ” Prelim. Determ.

of Critical Circumstances, 63 Fed. Reg. at 65,751. This was

more than six times greater than the 15 percent increase

needed to establish massive imports under Commerce’s

established practice. Id. at 65,750. See also 19 C.F.R.

§ 351.206(h)(2) (15 percent threshold). Commerce also found

that importers knew or should have known both that the

respondents were selling the subject merchandise at less than

fair value, and that there was likely to be material injury.

It based this determination on the fact that dumping margins

documented in the petition were in excess of 25%, see Certain

Cut-To-Length Carbon Steel Plate from the People’s Republic of

China, 62 Fed. Reg. 61,964, 61,967 (Dep’t Comm. 1997)(final

determ.) (knowledge of dumping imputed to importers where

dumping rate greater than 25%), and that there was other

evidence, including “numerous press reports, . . . falling

domestic prices resulting from rising imports, and domestic

buyers shifting to foreign suppliers.” Prelim. Determ. of

Critical Circumstances, 63 Fed. Reg. at 65,750. Commerce also

considered comments submitted by respondents, including NSC.

See Opposition of Japanese Respondents to Petitioners’ Request

for an Early Critical Circumstances Determination (Oct. 26,

1998), P.R. Doc. 56 (NSC and four other respondents challenged

petitioners’ evidence regarding, e.g., injury and importer

knowledge); Commerce’s Preliminary Critical Circumstances
CONSOL. COURT NO. 99-08-00466 PAGE 22

Memorandum (Nov. 23, 1998), P.R. Doc. 115, DOC App., Tab 4, at

3 (discussing respondents’ contentions). Thus, Commerce had a

“reasonable basis to believe or suspect” that critical

circumstances existed.9 19 U.S.C. § 1673b(e)(1).

Accordingly, the court concludes that Commerce’s procedures as

to the preliminary critical circumstances determination were

not flawed.

III. Expedited Procedures and “Burdensome” Data Requests

As part of its claim that the entire investigation was

defective and unfair, NSC cites various procedural flaws of

which it complained during the proceeding, but did not allege

clearly in its case brief before the agency. In view of the

preservation of its overall unfairness argument and the fact

that NSC raised the complaints in various forms during the

investigation, the court considers these sub-issues adequately

exhausted.

9
The ITC’s preliminary negative present material injury
finding is irrelevant. Assuming arguendo that the ITC’s
finding was inconsistent with Commerce’s, both findings may be
found supported by substantial evidence. See Pohang Iron and
Steel Co., Ltd. v. United States, No. 98-04-00906, 1999 WL
970743, at *8 (Ct. Int’l Trade Oct. 20, 1999) (quoting Consolo
v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966)).
Commerce, however, apparently considers the affirmative threat
of injury finding supportive of its decision. The court is
not going to split this hair. Threat of imminent injury,
while not strong evidence, would appear to contribute to a
finding of critical circumstances.
CONSOL. COURT NO. 99-08-00466 PAGE 23

First, NSC complains that the usual time for complex

investigations was not allowed. In view of the critical

circumstances evidence before Commerce, the court cannot find

that Commerce abused its discretion by not extending the time

for investigation. Second, Commerce is permitted to require

Period of Investigation (“POI”) reporting as opposed to Fiscal

Year reporting in order to meet its own investigatory

obligations. Commerce gave NSC additional time to adjust its

data to the POI. This also does not appear an abuse of

discretion. Finally, according to NSC, Commerce improperly

requested financial data on NSC’s affiliates for purposes of

investigating whether sales were made below cost. NSC alleged

minimal affiliate involvement. Commerce requested data to

verify this. By the time of the Final Determination, Commerce

was satisfied with NSC’s response. The fact that NSC proved

that affiliate involvement was minimal does not establish that

Commerce’s method of investigation was abusive, even if a

large amount of data requested was determined ultimately to be

unnecessary to the final determination.

Further, whether NSC is right or wrong about the

procedures themselves, it has not shown prejudice resulting

therefrom. As evidence of an overall procedurally defective

or unfair investigation, these complaints considered

collectively fall short. The court has considered the entire

record, including all of NSC’s complaints, the handling of
CONSOL. COURT NO. 99-08-00466 PAGE 24

objections from all parties, and Commerce’s lax procedures on

ex parte memoranda. The court does not perceive an overall

unfair or defective proceeding which would warrant vacation of

the final determination and order and recommencement of the

investigation.

IV. Use of Adverse Facts Available for NSC’s Weight
Conversion Factor

NSC alleges that although it was late in submitting the

weight conversion factor, its error was a simple inadvertence.

It alleges that the persons responsible for answering the

Commerce questionnaire were mistaken in their belief that the

weight conversion data did not exist. Commerce alleges that

this was not a simple error, but that it was an affirmative

misstatement, and that NSC did not act as a reasonable and

responsible respondent should in failing to ask plant

personnel for the available data. Accordingly, Commerce

concluded that NSC did not act to the best of its ability and,

that not only may Commerce reject the late data, but it may

use adverse substitute data in accordance with 19 U.S.C.

§ 1677e(b).

There are two related issues here. It is likely true

that because the data was late, Commerce did not have to use

it. See 19 U.S.C. § 1677e(a)(2)(B). Commerce may establish
CONSOL. COURT NO. 99-08-00466 PAGE 25

time limits to aid the completion of its mission.10 See, e.g.,

19 C.F.R. § 351.301. It may enforce such limits by rejecting

late, but verifiable, data. See Seattle Marine Fishing Supply

Co. v. United States, 12 CIT 60, 71, 679 F. Supp. 1119, 1128

(1988) (refusal to accept untimely filed responses not

unreasonable or contrary to law). If a submission is untimely

Commerce may use other facts available. See 19 U.S.C.

§ 1677e(a)(2)(B). More is required, however, before an

adverse inference may be drawn as to what facts are to be

used. See 19 U.S.C. § 1677e(b).

Commerce may not resort to adverse facts available unless

it makes the additional finding that a respondent “failed to

cooperate by not acting to the best of its ability.” 19

U.S.C. § 1677e(b); 19 C.F.R. § 351.308(a). See also Borden,

Inc. v. United States, 4 F. Supp. 2d 1221, 1247 (Ct. Int’l

Trade 1998) (remanding because Commerce “did not make the

required additional finding that [respondent] had failed to

act to the best of its ability”), aff’d sub nom. F.lli De

Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216

F.3d 1027 (Fed. Cir. 2000); Mannesmannrohren-Werke AG v.

10 Commerce argues that 19 U.S.C. § 1677m(d), which
provides an opportunity to cure deficiencies, does not save
the submission because NSC’s submission was untimely, not
merely deficient. Obviously, NSC made an overall timely
submission. Commerce must draw some reasonable lines in
determining when data constitutes an untimely separate
submission of information or is a curable deficiency in the
original data. The court need not resolve that issue here.
CONSOL. COURT NO. 99-08-00466 PAGE 26

United States, 77 F. Supp. 2d 1302, 1325 (Ct. Int’l Trade

1999) [hereinafter “Mannesmann”](remanding “so that [Commerce]

may reconsider its conclusion . . . that [respondent] failed

to act to the best of its ability in providing [incomplete]

information about input purchases”); Ferro Union, 44 F. Supp.

2d 1310, 1331 (Ct. Int’l Trade 1999) (remanding with

instructions to determine whether respondent “deliberately

chose not to disclose [requested information]”).

Commerce must reach its finding through a reasoned

inquiry into the facts. “[I]t is not sufficient for Commerce

to simply assert this legal standard [not acting to the best

of ability] as its conclusion or repeat its finding concerning

the need for facts available.” Mannesmann, 77 F. Supp. 2d at

1313. Accord Ferro Union, 44 F. Supp. 2d at 1330 (“[M]ere

recitation of the relevant standard is not enough for Commerce

to satisfy its obligation under the statute.”) (citations

omitted). Nor may Commerce rest its finding on mere

suspicions or “vague hints.” Mannesmann, 77 F.Supp. 2d at

1317 (quoting Borden, 4 F. Supp. 2d at 1246-47).

In order for its finding to be supported by substantial

evidence, “Commerce needs to articulate why it concluded that

a party failed to act to the best of its ability, and explain

why the absence of this information is of significance to the

progress of its investigation.” Mannesmann, 77 F. Supp. 2d at

1313-14 (citation omitted). Accord Ferro Union, 44 F. Supp.
CONSOL. COURT NO. 99-08-00466 PAGE 27

2d at 1331 (remanding because “Commerce ha[d] not pointed to

substantial evidence” to show that respondent’s failure to

provide requested information “was a failure by [respondent]

to comply to the best of its ability”). Judged by this legal

standard, Commerce’s finding that NSC did not act to the best

of its ability cannot stand.

Because the late information submitted by NSC was

available before verification, and the accuracy of the data

could be checked, Commerce might have accepted the data on the

theory that the lapse was inadvertent. Because Commerce

decided to draw the adverse inference, however, it did not

verify the data or examine the circumstances surrounding the

error.11 This is permissible only if Commerce first properly

drew the adverse inference.
The only question relevant to the issue of non-

cooperation is whether Commerce found NSC’s failure to provide

the requested theoretical weight conversion data to

“constitute[] anything more than an inadvertent error.”

Mannesmann 77 F. Supp. 2d at 1316. As stated in NTN Bearing

Corp. v. United States, 74 F.3d 1204, 1208 (Fed. Cir. 1995),

11
Evidence received at verification is part of the record for
review. See Rubberflex Sdn. Bhd. v. United States, 59 F.
Supp. 2d 1338, 1345 (Ct. Int’l Trade 1999). Commerce’s
verification procedures must allow meaningful participation by
respondent. Id. at 1346.
CONSOL. COURT NO. 99-08-00466 PAGE 28

“[w]hile the parties must exercise care in their submissions,

it is unreasonable to require perfection.”12
There is confusion as to the standard for a respondent’s

best ability to comply, which controls whether an adverse

inference may be drawn pursuant to 19 U.S.C. § 1677e(b).

Sometimes only willfulness can explain an error in compliance,

if the objective capability of providing the data exists. A

finding of willfulness, however, in the sense of a deliberate

decision not to comply, is not always a prerequisite to the

drawing of an adverse inference. Cf. Krupp Thyssen Nirosta

GmbH v. United States, No. 99-08-00550, 2000 WL 1118114, at

*2-*3 (Ct. Int’l Trade July 31, 2000) (upholding Commerce’s

application of adverse facts available where respondent failed

to inform Commerce of its inability to comply with request for

information). On the other hand, as indicated, simple

inadvertence is insufficient for application of an adverse

inference. See Mannesmann, 77 F. Supp. 2d at 1316.
First, the adverse inference being drawn is that the

respondent would have provided the data if it were beneficial.

Cf. Statement of Administrative Action Accompanying the URAA

(“SAA”), H.R. Doc. No. 103-316 at 870 (1994), reprinted in

12
Commerce argues NTN dealt with a clerical error, not an
error in judgment. There is no evidence, however, that NSC
made any judgment about whether to provide the data. The
limits of clerical error are not well-defined. See World
Finer Foods, Inc. v. United States, No. 99-03-00138, 2000 WL
897752, at *7-*8 (Ct. Int’l Trade June 26, 2000).
CONSOL. COURT NO. 99-08-00466 PAGE 29

1994 U.S.C.C.A.N. 4040, 4199 (“Commerce . . . may employ

adverse inferences to ensure that the party does not obtain a

more favorable result by failing to cooperate than if it had

cooperated fully.”). It is difficult to draw such an

inference from a simple mistake. Second, in various ways the

statute, regulations and Commerce’s practices permit

correction of simple errors. See, e.g., 19 U.S.C. § 1673d(e);

19 U.S.C. § 1677m(d); 19 U.S.C. § 1677m(e); 19 C.F.R.

§ 351.224; 19 C.F.R. 351.301(c)(2); and 19 C.F.R.

§ 351.308(e). At a minimum, Commerce must find that a

respondent could comply, or would have had the capability of

complying if it knowingly did not place itself in a condition

where it could not comply. See Gourmet Equip. (Taiwan) Corp.

v. United States, No. 99-05-00262, 2000 WL 977369 at *5 (Ct.

Int’l Trade July 6, 2000). Commerce must also find either a

willful decision not to comply or behavior below the standard

for a reasonable respondent. Insufficient attention to

statutory duties under the unfair trade laws is sufficient to

warrant adverse treatment. It implies an unwillingness to

comply or reckless disregard of compliance standards.

Commerce must be in a position to compel meaningful attention

to and compliance with its requests. See Atlantic Sugar, Ltd.

v. United States, 744 F.2d 1556, 1560 (Fed. Cir. 1984).

The problem here is that, thus far, Commerce has found

nothing more than a simple mistake. It must go further. It
CONSOL. COURT NO. 99-08-00466 PAGE 30

must analyze NSC’s error in the light of its overall conduct,

the importance of the information, the particular time

pressures of this investigation, and any other information

that will bear on the determination of whether this was an

excusable inadvertence on NSC’s part or a demonstration of

lack of due regard for its responsibilities in the

investigation.

As the court has said before, the 1994 amendments to the

facts available provision require some difficult decision-

making. Ferro Union 44 F. Supp. 2d at 1329. Without some

clear findings, mere inadvertence that does not impede the

investigation can bring about penalties far more onerous than

warranted by the conduct. The appearance, if not the

actuality, of arbitrary and capricious decision-making in this

area is a serious problem. As stated in De Cecco, 216 F.3d at

1032, “Commerce’s discretion in these matters . . . is not

unbounded.”

V. Electricity Costs

In this case Commerce performed a below cost

investigation to determine whether sales over time generally

recoup cost of production. See 19 U.S.C. § 1677b(b). Where

sale-to-sale price comparisons are not possible, cost is also

used to construct normal value. See 19 U.S.C. § 1677b(e). In

order to obtain reliable costs, Commerce may disregard prices
CONSOL. COURT NO. 99-08-00466 PAGE 31

of inputs obtained from affiliates if such prices do not

fairly reflect market prices. See 19 U.S.C. § 1677b(f)(2).
During the POI, NSC bought electricity from unaffiliated

regional utilities. It also bought electricity from

affiliated cooperatives, all of which sell exclusively to NSC.

Commerce disregarded the cooperative price because it

concluded that the statute focuses upon market price, not upon

“the nature or circumstances of the supplier.” Final Results,

64 Fed. Reg. at 24,349.

There is no difference here in the input purchased or

circumstances of the sale which explains the difference in

price between the two types of suppliers. Cf. Cinsa, S.A. de

C.V. v. United States, 966 F. Supp. 1230, 1237 & n.5 (Ct.

Int’l Trade 1997) (transportation costs and volume discounts,

inter alia, explained discrepancies between prices of

affiliates and non-affiliates); Stainless Steel Wire Rod From

Taiwan, 63 Fed. Reg. 40,461, 40,471 (final determ.) (Dep’t

Comm. 1998) (physical product differences explained price

discrepancy between prices of affiliates and non-affiliates).

Calling the affiliates’ prices “wholesale” explains nothing.

In the absence of any explanation of the price discrepancy

that has meaning for cost investigations, Commerce properly

focused on the market price reflected in the arm’s length

transactions. The court sustains Commerce on this issue.
CONSOL. COURT NO. 99-08-00466 PAGE 32

VI. Methodology for Determining Starting U.S. Price

Under 19 U.S.C. § 1677a(a), Commerce must base its

calculation of the export price of a particular sale on “the

price at which the subject merchandise is first sold (or

agreed to be sold) before the date of importation . . . ” (the

“Starting Price”). To establish export price the Department

must make certain adjustments to the Starting Price in both

the United States and foreign markets. See 19 U.S.C. §

1677a(c). If the currency of the Starting Price is not in

U.S. dollars, Commerce will convert the Starting Price to U.S.

dollars before making its margin comparison. See 19 U.S.C. §

1677b-1(a). Commerce makes currency conversions into dollars

using the rate in effect on the date of sale. See id.
In this case, Commerce used as the Starting Price the

final, yen-denominated amounts on NSC’s invoices as converted

to dollars at the rate effective on the date of sale.

Petitioners allege that this methodology distorted the

calculation of NSC’s margins because it (1) disregarded the

invoiced dollar price that was “definite and determinable” on

the date of sale, and (2) incorporated exchange rate

fluctuations outside the seller’s control. In addition,

Petitioners contend that Commerce’s currency conversion

methodology deviates from past practice.13

13
In its initial brief, Petitioners also had alleged that
Commerce failed to apply the forward currency transaction
(continued...)
CONSOL. COURT NO. 99-08-00466 PAGE 33

Petitioners’ first allegation that Commerce should have

used the invoiced price in dollars as the Starting Price is

without merit because this price does not reflect the agreed

value of sale between NSC and its customers. The proper

Starting Price is the price expressed in the currency that

preserves the agreed value of the sale from the time the price

is set until it is paid. See Voss Int’l Corp. v. United

States, 628 F.2d 1328 (CCPA 1980). The parties in Voss

entered into a series of agreements that prescribed a specific

price in one currency to be settled in another currency, yet

adjusted for currency fluctuation before payment. Id. at

1334-35. The court held that in such a case and for the

purposes of determining whether a sale was complete under 19

U.S.C. § 162, the “clear result is a definite and determinable

price [in the converted currency] irrevocably agreed to prior

to the time of exportation.” Id. at 1335. Accordingly, the

proper Starting Price is the one denominated in the currency

that effectuates the intent of the agreement on price over the

course of a sale, rather than the initial benchmark price.

Here, NSC and its customers had agreed that after

applying standard discounts, NSC would convert the invoiced

13
(...continued)
exception to NSC’s sales pursuant to 19 U.S.C. § 1677b-1(a).
The parties, however, have agreed that this argument may not
be raised on appeal because Petitioners failed to raise it in
the administrative proceeding. Tr. at 68. Thus, the court
does not reach this issue.
CONSOL. COURT NO. 99-08-00466 PAGE 34

dollar price to yen based on the exchange rate in effect on

the ninth day following shipment. The parties intended that

the value of the sale be denominated in yen. That the payment

was in fact made and recorded in yen is evidence of such

intent. See Certain Cut-to-Length Carbon-Quality Steel Plate

Products from Japan, 64 Fed. Reg. 73,215, 73,226 (Dep’t Comm.

1999) (final determ.) (price in yen is appropriate Starting

Price where respondent records negotiated price in yen,

payment is made in yen, and yen value is tracked through

accounting records). Because the dollar-based net price in

yen (the “net yen price”) reflects the intention of the

parties as to the agreed upon value of the sale, Commerce was

correct in using it as the Starting Price rather than the

dollar-denominated price.
Petitioners rely on Polyvinyl Alcohol from Taiwan, 61

Fed. Reg. 14,064, 14,067-68 (Dep’t Comm. 1996) (final

determ.), to support their argument that use of the net yen

price was distortive because it incorporated currency exchange

fluctuations that were outside the control of the parties to

the sales agreement. In fact, Polyvinyl Alcohol from Taiwan

supports the contrary position. There, Commerce found that

because the “essential terms of price and quantity are firm

when they are no longer within control of parties to alter,” a

sale was complete even though the parties did not know what

conversion rate would be applied pursuant to their agreement.
CONSOL. COURT NO. 99-08-00466 PAGE 35

Id. at 14,067. Because the Starting Price reflects the value

of a completed sale, it should be in the currency in the final

amount paid even if such amount was not known at the time the

parties entered into the agreement. Here, the NSC and its

customers had agreed as of the date of sale on all of the

price elements that comprised the sale price, including the

mechanism for determining the final price. Because the

exchange rate that was applied to reach the ultimate price

paid in yen had been agreed to by the parties prior to the

date of sale, Commerce’s use of the net yen price was not

distortive.

Lastly, Petitioners contend that Commerce’s methodology

deviates from past practice as principally reflected in

Ferrosilicon from Brazil, 62 Fed.Reg. 43,504 (Dep’t Comm.

1997)(final determ.), and Stainless Steel Wire Rod from Japan,

63 Fed. Reg. 40,434 (Dep’t Comm. 1998) (final determ.)

[hereinafter “Steel Wire Rod”]. In Ferrosilicon from Brazil,

Commerce observed that “[i]t is established . . . policy to

use the actual U.S. price in the currency in which it was

originally denominated on the date of sale and to avoid any

unnecessary currency conversion.” 62 Fed. Reg. at 43,511.14

14
This language is essentially the same as another
determination also cited by Petitioners as reflecting past
practice, namely, Silicon Metal From Brazil, 62 Fed. Reg.
47441, 47445 (Dep’t Commerce 1997) (amending Silicon Metal
From Brazil, 62 Fed. Reg. 1953, 1961 (Dep’t Commerce 1997)
(final results)).
CONSOL. COURT NO. 99-08-00466 PAGE 36

Petitioners maintain that in Ferrosilicon from Brazil, 62

Fed.Reg. 54,085, 54,085-86 (Dep’t Comm. 1997)(amended final

determ.), Commerce amended its final results to use the U.S.

price denominated in dollars, even though the exporter

received payment in an equivalent amount of Brazilian

currency. Petitioners omit that in this determination, the

price was denominated and payment initially had been made in

U.S. dollars; the exporter received payment in Brazilian

currency only because Brazilian law required U.S. buyers to

make payment to the Brazilian exporters’s banks to exchange

dollar revenues for Brazilian currency upon receipt of

payment. Commerce therefore determined that where payment was

made in U.S. dollars, it was a ministerial error to convert to

Brazilian currency, then back to U.S. dollars to arrive at the

Starting Price. See id. Where, as here, the parties agree to

a conversion to a particular currency on a specified date, and

payment is made in that currency, the effective currency is

the one in which the sale is settled.
Petitioners also rely on Steel Wire Rod, 63 Fed. Reg. at

40,446-47, to demonstrate that Commerce’s past practice is to

use as the Starting Price the price that was set in dollars

even though payment was made in a foreign currency. Such

reliance is misplaced. In Steel Wire Rod, Commerce departed

from its normal practice of using the converted net price as

the Starting Price because its determined that the respondent
CONSOL. COURT NO. 99-08-00466 PAGE 37

complied with Commerce’s overbroad requests for information.

Commerce noted that under such circumstances, rather than

rejecting the data or applying facts available, it would

continue “to use the information provided by [the respondent]

in the final determination.” Id. at 40,447. Here, NSC’s

compliance with Commerce’s requests is not at issue and, as

described above, Commerce applied its general practice of

arriving at the Starting Price by converting the net price

paid in foreign currency into U.S. dollars, rather than simply

using the underlying dollar-denominated benchmark.

Accordingly, the court concludes that Commerce’s Starting

Price methodology is supported by substantial evidence and is

in accordance with law.

CONCLUSION

This matter is remanded to Commerce for it to determine

whether, as to weight conversion factors, NSC acted to the

best of its ability within the meaning of 19 U.S.C.

§ 1677e(b). Commerce shall also issue a policy statement on

ex parte memoranda, in accordance with this opinion.

____________________________
Jane A. Restani
JUDGE

Dated: New York, New York
This day of October, 2000.