Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi A.S. v. U.S.

Decision Date15 June 2009
Docket NumberCourt No. 05-00613.,Slip Op. 09-55.
Citation625 F.Supp.2d 1339
PartiesHABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDUSTRISI 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

Law Offices of David L. Simon, Washington, DC (David L. Simon), for Plaintiff.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Richard P. Schroeder); Scott D. McBride, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel; for Defendant.

Wiley Rein LLP (Alan H. Price, John R. Shane, and Maureen E. Thorson), for Defendant-Intervenors.

OPINION

RIDGWAY, Judge.

Pending before the Court are the Final Results of Redetermination Pursuant to Court Remand, filed by the U.S. Department of Commerce pursuant to the decision in Habas. See generally Final Results of Redetermination Pursuant to Court Remand ("Remand Determination"); Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States, 31 CIT ___, 2007 WL 3378201 (2007) ("Habas").

Habas remanded to Commerce two issues concerning the agency's analyses in the seventh administrative review of the antidumping duty order on Certain Steel Concrete Reinforcing Bars From Turkey: (1) Commerce's use of annual Period of Review ("POR") average costs (rather than Habas' quarterly costs) in the agency's "sales-below-cost" analysis, and (2) Commerce's use of invoice date (rather than contract date) as the date of sale for Habas' U.S. sales in the agency's antidumping duty margin calculations. See Habas, 31 CIT at ___, ___, 2007 WL 3378201 *5, 8.

In its Remand Determination, Commerce reaffirmed its earlier decision to use POR average costs, rather than quarterly costs. However, Commerce reversed its prior determination on the date of sale issue, concluding that contract date is the appropriate date of sale. See generally Remand Determination.

In its comments on the Remand Determination, Habas requests that the quarterly costing issue be remanded once again, but argues that the Remand Determination on the date of sale issue should be sustained. See generally Brief of Plaintiff Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. Concerning Remand Final Determination of Department of Commerce ("Pl.'s Brief); Reply Brief of Plaintiff Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. Concerning Remand Final Determination of Department of Commerce ("Pl.'s Reply Brief).

The Domestic Producers—Defendant-Intervenors Nucor Corporation, Gerdau Ameristeel Corporation, and Commercial Metals Company—oppose Habas on both counts. According to the Domestic Producers, the Remand Determination should be sustained as to the quarterly costing issue, while the date of sale issue should be remanded to the agency once more. See generally Defendant-Intervenors' Comments on the Remand Results ("Def.-Ints.' Brief); Defendant-Intervenors' Supplemental Brief ("Def.-Ints.' Reply Brief).

The Government maintains that Commerce has complied fully with the Court's instructions in Habas, and that the Remand Determination is supported by substantial evidence and is otherwise in accordance with the law. The Government therefore contends that the Remand Determination should be sustained in its entirety. See Defendant's Response to Comments Regarding Remand Redetermination ("Def.'s Response Brief) at 4.

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).1 For the reasons set forth below, the Remand Determination is sustained as to Commerce's determination on the use of contract date as the date of sale. However, as to the issue of quarterly costs versus POR-average costs, this matter must be remanded to the agency yet again.

I. Background

This action arises out of the seventh administrative review of the antidumping duty order on imports of steel concrete reinforcing bar ("rebar") from Turkey. In the Preliminary Results of the administrative review, Commerce made a preliminary determination that the dumping margin for Habas was 26.07%. See generally Certain Steel Concrete Reinforcing Bars from Turkey; Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review and Notice of Intent to Revoke in Part, 70 Fed.Reg. 23,990 (May 6, 2005) ("Preliminary Results"); see also Habas, 31 CIT at ___, 2007 WL 3378201 *2.

Following publication of the Preliminary Results, Habas' advocacy before Commerce focused principally on the two issues in dispute in this action—whether Commerce erred in using annual POR-average costs (rather than Habas' quarterly costs) in the agency's sales-below-cost analysis, and whether Commerce erred in using invoice date (rather than contract date) as the date of sale for Habas' U.S. sales in the agency's antidumping duty margin calculations. In the Final Results, Commerce rejected Habas' arguments on both issues, and left Habas' dumping margin unchanged at 26.07%. 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"); see also Issues and Decision Memorandum for the Antidumping Duty Administrative Review on Certain Steel Concrete Reinforcing Bars from Turkey—April 1, 2003, through March 31, 2004, 2005 WL 3054566 (Nov. 8, 2005) (Pub.Doc. No. 256) ("Decision Memorandum").2

This action followed, contesting Commerce's determination in the Final Results. See generally Habas, 31 CIT ___, 2007 WL 3378201.3 In Habas, the Court granted in part Habas' Motion for Judgment Upon the Agency Record, remanding to Commerce for further consideration the issues of quarterly costs and date of sale. See generally Habas, 31 CIT at ___, ___, 2007 WL 3378201 *5, 8.

In its Remand Determination, Commerce reaffirmed the agency's earlier decision to use annual POR average costs— rather than quarterly costs—in its sales-below-cost analysis. See generally Remand Determination at 1-19, 21-40, 49. However, Commerce reversed its earlier determination on the date of sale issue, concluding that contract date is the appropriate date of sale for use in the agency's antidumping duty margin calculations. See generally Remand Determination at 1-2, 19-21, 40-49. Commerce therefore recalculated Habas' dumping margin, which now stands at 22.53%. See Remand Determination at 1-2, 21, 49.

II. Standard of Review

In reviewing a challenge to Commerce's final determination in an antidumping case, the agency's determination must be upheld unless it 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 Elkem Metals Co. v. United States, 468 F.3d 795, 800 (Fed.Cir.2006).4

"[S]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Moreover, any determination as to 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).

III. Analysis

Habas and the Domestic Producers each challenge one aspect of Commerce's Remand Determination. Specifically, Habas takes issue with Commerce's continued adherence to the use of a single cost-averaging period, contemporaneous with the period of review (POR), in the agency's sales-below-cost analysis, while the Domestic Producers dispute Commerce's decision to reverse its earlier determination and use contract date (rather than invoice date) as the date of sale in its antidumping duty calculations.

Both issues are discussed in turn below. For the reasons detailed there, Habas' challenge to the Remand Determination is sustained, and this matter is remanded to Commerce for a second time, for further consideration of the issue of the use of POR-average costs versus quarterly costs. On the other hand, the Domestic Producers' challenge to Commerce's decision to use contract date (rather than invoice date) as the date of sale is rejected, and the Remand Determination on that issue is sustained.

A. Commerce's Determination on Use of Quarterly Costs versus POR-Average Costs

In order to make fair comparisons between U.S. sales and normal value, and between home market sales and costs, Commerce must determine the appropriate time period(s) for its weighted-average cost calculations. In the instant case, Habas claims that Commerce's use of POR-average costs created a mismatch between sales and costs which distorted the comparisons between U.S. price and normal value. See Habas, 31 CIT at ___, 2007 WL 3378201 *3. According to Habas, Commerce's use of POR average costs "causes a 14% increase in normal value ... which, in turn, inflates the dumping margins by 20%." See Pl.'s Brief at 4.

The Remand Determination at issue here is, in part, the result of the Government's request for a voluntary remand on the issue of POR-average costs versus quarterly...

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