Eregli Demir Ve Celik Fabrikalari T.A.S v. United States

• Decision Date: 22 March 2018
• Docket Number: Slip Op. 18–27,Consol. Court No. 16–00218
• Citation: 308 F.Supp.3d 1297
• Parties: EREGLI DEMIR VE CELIK FABRIKALARI T.A.S, et al., Plaintiffs, v. UNITED STATES, Defendant, and Steel Dynamics, Inc., et al., Defendant–Intervenors.
• Court: U.S. Court of International Trade

308 F.Supp.3d 1297

EREGLI DEMIR VE CELIK FABRIKALARI T.A.S, et al., Plaintiffs,

v. UNITED STATES, Defendant,andSteel Dynamics, Inc., et al., Defendant–Intervenors.

Consol. Court No. 16–00218

Slip Op. 18–27

United States Court of International Trade.

Dated: March 22, 2018

David L. Simon, Law Office of David L. Simon, of Washington, DC, argued for Plaintiff Eregli Demir ve Çelik Fabrikalari T.A.S. With him on the brief was Mark B. Lehnardt, Mark B. Lehnardt, Esq., of Washington, DC.

Matthew M. Nolan, Arent Fox LLP, of Washington, DC, argued for Consolidated Plaintiffs Çolakoglu Metalurji A.S. and Çolakoglu Dis Ticaret A.S. With him on the brief was Nancy A. Noonan.

Renée A. Burbank, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant United States. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Brandon J. Custard, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

David C. Smith, Jr. and Joshua R. Morey, Kelley Drye & Warren, LLP, of Washington, DC, argued for Defendant–Intervenor ArcelorMittal USA LLC. With them on the brief were Paul C. Rosenthal and R. Alan Luberda.

Roger B. Schagrin and Christopher T. Cloutier, Schagrin Associates, of Washington, DC, for Defendant–Intervenors Steel Dynamics, Inc. and SSAB Enterprises LLC.

Stephen A. Jones and Daniel L. Schneiderman, King & Spalding LLP, of Washington, DC, for Defendant–Intervenor AK Steel Corporation.

Jeffrey D. Gerrish and Luke A. Meisner, Skadden Arps Slate Meagher & Flom, LLP, of Washington, DC, for Defendant–Intervenor United States Steel Corporation.

Alan H. Price and Christopher B. Weld, Wiley Rein LLP, of Washington, DC, for Defendant–Intervenor Nucor Corporation.

Before: Mark A. Barnett, Judge

OPINION AND ORDER

Barnett, Judge:

Plaintiff Eregli Demir ve Çelik Fabrikalari T.A.S. ("Erdemir") and Consolidated Plaintiffs Çolakoglu Metalurji A.S. and Çolakoglu Dis Ticaret A.S. (together, "Çolakoglu") (collectively, "Plaintiffs"), move, pursuant to United States Court of International Trade ("USCIT" or "CIT") Rule 56.2, for judgment on the agency record, challenging the United States Department of Commerce's ("Commerce" or the "agency") final results in the sales at less than fair value investigation of certain hot-rolled steel flat products from the Republic of Turkey.¹ See Certain Hot–Rolled Steel Flat Products from the Republic of Turkey , 81 Fed. Reg. 53,428 (Dep't Commerce Aug. 12, 2016) (final determination of sales at less than fair value; 2014–2015) (" Final Determination "), ECF No. 41–1, and accompanying Issues and Decision Mem., A–489–826 (Aug. 4, 2016) ("I & D Mem."), ECF No. 41–3, as amended by Certain Hot–Rolled Steel Flat Products from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom , 81 Fed. Reg. 67,962 (Dep't Commerce Oct. 3, 2016) (am. final affirmative antidumping determinations for Australia, the Republic of Korea, and the Republic of Turkey and antidumping duty orders), ECF No. 41–2.

Erdemir challenges Commerce's determinations regarding its home market and U.S. dates of sale. See Pl.'s Rule 56.2 Mot. for J. on the Agency R., ECF No. 52, and Mem. in Supp. of Mot. of Pl. Eregli Demir ve Çelik Fabrikalari T.A.S., for J. Upon the Agency R. Pursuant to Rule 56.2 ("Erdemir Mem."), ECF No. 52–1. Çolakoglu challenges Commerce's determinations regarding duty drawback, indirect selling expenses, corrections to international ocean freight expenses, cost-averaging methodology, and treatment of excess heat as a co-product. See Confidential Pls.' Mot. for J. on the Agency R., ECF No. 53, and Confidential Pls. Çolakoglu Metalurji A.S. and Çolakoglu Dis Ticaret A.S. Mem. of Law in Supp. of Mot. for J. on the Agency R. Pursuant to Rule 56.2 ("Çolakoglu Mem."), ECF No. 53–1. Defendant United States (the "Government") and Defendant–Intervenors urge the court to sustain Commerce's determinations. See Confidential Def.'s Mem. in Opp'n to Rule 56.2 Mots. for J. on the Agency R. ("Gov. Resp."), ECF No. 59; Confidential Def.–Ints.' Resp. in Opp'n to Pls.' Mots. for J. on the Agency R. ("Def.–Ints. Resp."), ECF No. 61. For the following reasons, the court grants Erdemir's motion as to its home market date of sale. The court further grants Çolakoglu's motion as to duty drawback and corrections to international ocean freight expenses. Plaintiffs' motions are denied in all other respects. The issues upon which the court has granted Plaintiffs' respective motions are remanded to the agency for reconsideration or further explanation.

BACKGROUND

Commerce initiated this anti-dumping duty investigation of hot-rolled steel flat products ("hot-rolled steel") on August 31, 2015 in response to petitions filed by domestic producers of hot-rolled steel. See Certain Hot–Rolled Steel Flat Products from Australia, Brazil, Japan, the Republic of Korea, the Netherlands, the Republic of Turkey, and the United Kingdom , 80 Fed. Reg. 54,261 (Dep't Commerce Sept. 9, 2015) (initiation of less-than-fair-value investigations; 2014–2015). Commerce selected Çolakoglu and Erdemir as mandatory respondents in the investigation. See Respondent Selection Mem. at 5–6, CJA Tab 1.² The period of investigation ("POI") ran from July 1, 2014 to June 30, 2015. Final Determination , 81 Fed. Reg. at 53,428.

On March 22, 2016, Commerce issued its Preliminary Determination . See Certain Hot–Rolled Steel Flat Products From the Republic of Turkey , 81 Fed. Reg. 15,231 (Dep't Commerce March 22, 2016) (aff. prelim. determination of sales at less than fair value; 2014–2015), and accompanying Preliminary Decision Mem., A–489–826 ("Prelim. Mem."), CJA Tab 19, PJA Tab 19, PR 252, ECF No. 69–1.

Commerce conducted sales verifications of Çolakoglu and Erdemir in Istanbul, Turkey from March 28 through April 8, 2016, and of Çolakoglu in Houston, Texas, from May 5 through May 7, 2016. I & D Mem. at 2. Commerce conducted cost verifications of Erdemir in Eregli, Turkey, from April 18 to April 22, 2016, and of Çolakoglu in Istanbul, Turkey, from April 25 to April 29, 2016. Id. at 2.

On August 4, 2016, Commerce issued its Final Determination . See Final Determination , 81 Fed. Reg. at 53,428. In the Final Determination , Commerce calculated a weighted-average dumping margin of 3.66 percent for Erdemir and 7.15 percent for Çolakoglu. 81 Fed. Reg. at 53,429.

On October 14, 2016, Erdemir timely instituted this action. See Summons, ECF No. 1. On October 28, 2016, Çolakoglu also filed suit challenging the Final Determination . See Summons, ECF No. 1 (Court No. 16–232). On January 18, 2017, the court consolidated the two actions. See Order (Jan. 18, 2017), ECF No. 45.³

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to § 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012),⁴ and 28 U.S.C. § 1581(c) (2012).

The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). "Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Huaiyin Foreign Trade Corp. (30) v. United States , 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB. , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). It "requires more than a mere scintilla," but "less than the weight of the evidence." Nucor Corp. v. United States , 34 CIT 70, 72, 675 F.Supp.2d 1340, 1345 (2010) (quoting Altx, Inc. v. United States , 370 F.3d 1108, 1116 (Fed. Cir. 2004) ). In determining whether substantial evidence supports Commerce's determination, the court must consider "the record as a whole, including evidence that supports as well as evidence that ‘fairly detracts from the substantiality of the evidence.’ " Nippon Steel Corp. v. United States , 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Atl. Sugar, Ltd. v. United States , 744 F.2d 1556, 1562 (Fed. Cir. 1984) ). However, that a plaintiff can point to evidence that detracts from the agency's conclusion or the possibility of drawing two inconsistent conclusions from the evidence does not preclude the agency's finding from being supported by substantial evidence. Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (citing Consolo v. Fed. Mar. Comm'n , 383 U.S. 607, 619–20, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966) ). The court may not "reweigh the evidence or ... reconsider questions of fact anew." Downhole Pipe & Equip., L.P. v. United States , 776 F.3d 1369, 1377 (Fed. Cir. 2015) (quoting Trent Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube AB , 975 F.2d 807, 815 (Fed. Cir. 1992) ).

DISCUSSION

I. Erdemir's Rule 56.2 Motion

A. Legal Framework for Date of Sale Determinations

To determine whether the subject merchandise is being sold at less than fair value, Commerce compares the export price or, as is the case here, the constructed export price⁵ of the subject merchandise to its normal value.⁶ See generally 19 U.S.C. 1673 et seq. Normal value is "the price [of the foreign like product] at a time reasonably corresponding to the time of the sale used to determine the export price or constructed export price." Id. § 1677b(a)(1)(A).

The antidumping statute does not state a particular methodology for determining the "time of sale" for purposes of that comparison. However, the Statement of Administrative Action ("SAA") accompanying the Uruguay Round Agreements Act defines "date of sale" for the purposes of currency conversion as the "date when the material terms of sale are established." Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103–316, vol. 1, at 810 (1994), reprinted in 1994 U.S.C.C.A.N. 4040,...