Nucor Corp. v. U.S.

Decision Date24 March 2009
Docket NumberSlip Op. 09-20. Court No. 05-00616.
Citation612 F.Supp.2d 1264
PartiesNUCOR CORPORATION, Gerdau Ameristeel Corporation, and Commercial Metals Company, Plaintiffs, v. UNITED STATES, Defendant, and ICdas Celik Enerji Tersane Ve Ulasim Sanayi, A. S., Defendant-Intervenor. ICdas Celik Enerji Tersane Ve Ulasim Sanayi, A. S., Plaintiff, v. United States, Defendant, and Nucor Corporation, Gerdau Ameristeel Corporation, and Commercial Metals Company, Defendant-Intervenors.
CourtU.S. Court of International Trade

Wiley Rein LLP, Washington, DC (Alan H. Price, John R. Shane, M. William Schisa, and Maureen E. Thorson), for Plaintiffs/Defendant-Intervenors Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company.

Michael F. Hertz, Acting Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (David Silverbrand and Richard P Schroeder); Douglas S. Ierley, Ada L. Loo, and Scott McBride, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel; for Defendant.

Arnold & Porter LLP, Washington, DC (Lawrence A. Schneider, Zhiqiang Zhao, and Francis Franze-Nakamura), for Defendant-Intervenor/Plaintiff ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A. S.

OPINION

RIDGWAY, Judge.

These consolidated actions are before the court on cross-motions for judgment on the agency record. Domestic steel manufacturers Nucor Corporation, Gerdau AmeriSteel Corporation, and Commercial Metals Company (collectively, the "Domestic Producers") and ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S. ("ICDAS")—a Turkish producer/exporter of the subject merchandise—separately challenge various aspects of the final results of the U.S. Department of Commerce's seventh administrative review of the antidumping duty order on Certain Steel Concrete Reinforcing Bars From Turkey. See generally Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination To Revoke in Part, 70 Fed.Reg. 67,665 (Nov. 8, 2005) ("Final Results"). Also here in dispute are the results of a voluntary remand to Commerce on the issue of the date of sale for ICDAS' U.S. sales, for use in Commerce's antidumping margin calculations. See Final Results of Redetermination Pursuant to Court Remand ("Remand Results").

In particular, the Domestic Producers contend that Commerce erred in the Final Results by classifying ICDAS' sales through its U.S. affiliate as Export Price ("EP") sales, rather than Constructed Export Price ("CEP") sales. See Memorandum in Support of Plaintiffs' Motion for Judgment on the Agency Record ("Domestic Producers Brief"); Plaintiffs' Reply Brief ("Domestic Producers Reply Brief") at 1-8.1 The Domestic Producers further assert that ICDAS' attacks on the Final Results are unfounded, and that the Final Results therefore should be sustained in all other respects—with one major exception. See Response Brief of the Domestic Producers ("Domestic Producers Response Brief"). Specifically, the Domestic Producers assert that the Final Results erred in using contract date as the date of sale for ICDAS' U.S. sales, and that the Remand Results—where Commerce reversed itself—are correct. See Domestic Producers Brief at 2 n. 1; Domestic Producers Reply Brief at 1, 8-15.

For its part, ICDAS challenges four aspects of the Final Results: (1) Commerce's disallowance of a start-up adjustment for ICDAS' Biga melt shop; (2) Commerce's decision to treat ICDAS' foreign exchange gains within the category of "financial expenses," and to cap ICDAS' total financial expenses at zero; (3) Commerce's use of the average cost of manufacturing for the entire period of review ("POR"), rather than ICDAS' quarterly costs, in the agency's "sales below cost" analysis; and (4) Commerce's use of the date of entry, rather than the date of sale, to define ICDAS' universe of sales. See Plaintiff ICDAS' Memorandum in Support of its Motion for Judgment on the Agency Record Pursuant to Rule 56.2 ("ICDAS Brief"); Plaintiff ICDAS' Reply Brief in Support of Its Motion for Judgment on the Agency Record Pursuant to Rule 56.2 ("ICDAS Reply Brief"). In addition, ICDAS contests Commerce's decision in the Remand Results to use invoice date as the date of sale for ICDAS' U.S. sales, rather than using contract date (as the agency did in the Final Results). See Defendant-Intervenor ICDAS' Memorandum in Opposition to Plaintiffs' Motion for Judgment on the Agency Record at 1-3, 5-30 ("ICDAS Response Brief); Defendant-Intervenor IDAS' Supplemental Reply Brief Regarding the Date of Sale Issue ("ICDAS Supp. Reply Brief"). ICDAS maintains that Commerce properly treated all of ICDAS' U.S. sales as Export Price ("EP") sales, rather than Constructed Export Price ("CEP") sales, and therefore opposes the Domestic Producers' Motion for Judgment on the Agency Record. See ICDAS Response Brief at 1, 3-4, 30-40.

The Government maintains that the Final Results should be sustained in all respects, save three. See Defendant's Response to Plaintiffs' and Defendant-Intervenor's Motions for Judgment Upon the Agency Record ("Def. Response Brief"). First, the Government requests that two issues be remanded to Commerce for further consideration—specifically, Commerce's use of the POR average cost of manufacturing (rather than ICDAS' quarterly costs) in the agency's "sales below cost" analysis, and Commerce's use of the date of entry (rather than the date of sale) to define ICDAS' universe of sales. See Def. Response Brief at 1-3, 8-9, 11-12, 28-29, 36. In addition, the Government asserts that, as to the issue of the date of sale for IDAS' U.S. sales, the Remand Results (which used invoice date as the date of sale)—rather than the Final Results (which used contract date)—should be sustained. See Defendant's Response to Defendant-Intervenor's Memorandum in Opposition to Plaintiffs Motion for Judgment on the Agency Record ("Def. Supp. Response Brief").

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).2 For the reasons set forth below, the Domestic Producers' Motion for Judgment on the Agency Record challenging Commerce's decision to treat sales made through ICDAS' U.S. sales affiliate as EP sales must be denied. IDAS' Motion for Judgment on the Agency Record must similarly be denied as to ICDAS' claims that Commerce improperly denied ICDAS' request for a startup adjustment, and that Commerce erred in its treatment of ICDAS' foreign exchange gains as well as in its decision to cap ICDAS' total financial expenses at zero. On the other hand, ICDAS' Motion for Judgment on the Agency Record is granted as to ICDAS' challenges to Commerce's use of invoice date (rather than contract date) as the date of sale for ICDAS' U.S. sales, Commerce's use of the POR average cost of manufacturing (rather than ICDAS' quarterly costs) in the agency's "sales below cost" analysis, and Commerce's use of the date of entry (rather than the date of sale) to define ICDAS' universe of sales; and this matter is remanded to the Department of Commerce for further proceedings not inconsistent with this opinion.

I. Standard of Review

In reviewing a challenge to a final determination by the Commerce Department in an antidumping administrative review, the court must hold unlawful any agency determination, finding, or conclusion that is found to be "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i); see also Elkem Metals Co. v. United States, 468 F.3d 795, 800 (Fed.Cir.2006). Substantial evidence is "more than a mere scintilla"; rather, it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. Nat'l Labor Relations Bd., 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consol. Edison Co. v. Nat'l Labor Relations Bd., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed.Cir.2003) (same).

Moreover, "the substantiality of evidence must take into account whatever in the record fairly detracts from its weight," including "contradictory evidence or evidence from which conflicting inferences could be drawn." Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (quoting Universal Camera, 340 U.S. at 487-88, 71 S.Ct. 456). On the other hand, the mere fact that "it [may be] possible to draw two inconsistent conclusions from evidence in the record ... does not prevent Commerce's determination from being supported by substantial evidence." Am. Silicon Techs. v. United States, 261 F.3d 1371, 1376 (Fed.Cir.2001); see also Consolo v. Federal Maritime Commission, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) (same).

II. Background

In April 1997, the Department of Commerce issued an antidumping order covering rebar from Turkey. See Antidumping Duty Order: Certain Steel Concrete Reinforcing Bars From Turkey, 62 Fed.Reg. 18,748 (April 17, 1997). Subsequently, in every annual administrative review that Commerce has conducted for ICDAS since 1999—including three consecutive administrative reviews, covering the periods April 1, 2001 through March 31, 2004—Commerce consistently found that the dumping margin for ICDAS' U.S. sales was zero or de minimis3 (at least until the Remand Results here in dispute were issued).4

The administrative review which is the subject of this action—the seventh such review—began in April 2004, when Commerce gave notice of the opportunity to request a review of the antidumping order on rebar from Turkey, for the period April 1, 2003 through March 31, 2004. See generally Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; ...

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