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.