U.S. Steel Corp. v. United States

• Citation: 953 F.Supp.2d 1332
• Decision Date: 27 December 2013
• Docket Number: Court No. 12–00071.,Slip Op. 13–156.
• Court: U.S. Court of International Trade
• Parties: UNITED STATES STEEL CORPORATION, Plaintiff, and Nucor Corporation, Plaintiff–Intervenor, v. UNITED STATES, Defendant, and Hyundai HYSCO, Pohang Iron & Steel Co., Ltd., and Pohang Coated Steel Co., Ltd., Defendant–Intervenors.

953 F.Supp.2d 1332

UNITED STATES STEEL CORPORATION, Plaintiff,andNucor Corporation, Plaintiff–Intervenor,

v. UNITED STATES, Defendant,andHyundai HYSCO, Pohang Iron & Steel Co., Ltd., and Pohang Coated Steel Co., Ltd., Defendant–Intervenors.

Slip Op. 13–156. Court No. 12–00071.

United States Court of International Trade.

Dec. 27, 2013.

Ellen J. Schneider, Skadden Arps Slate Meagher & Flom, LLP of Washington, DC, argued for Plaintiff. With her on the brief were Robert E. Lighthizer and Jeffrey D. Gerrish.

Timothy C. Brightbill, Wiley Rein, LLP of Washington, DC, argued for Plaintiff–Intervenor. With him on the brief was Alan H. Price.

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for Defendant. With her on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Nathaniel J. Halvorson, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.

Jarrod M. Goldfeder, Akin, Gump, Strauss, Hauer & Feld, LLP, of Washington, DC, argued for Defendant–Intervenors. With him on the briefs were J. David Park, and Sally S. Laing.

OPINION

KELLY, Judge:

This matter is before the court on motions for judgment on the agency record by Plaintiff, United States Steel Corporation (“U.S. Steel”), and by Plaintiff–Intervenor, Nucor Corporation (“Nucor”), (collectively “Plaintiffs”), both members of the domestic industry, pursuant to USCIT Rule 56.2. Plaintiffs' action, brought pursuant to section 516A of the Tariff Act of 1930 (“Tariff Act” or the “Act”), as amended, 19 U.S.C. § 1516a (2006),¹ challenges the United States Department of Commerce's (“Commerce”) final determination in the administrative review issued in Certain Corrosion–Resistant Carbon Steel Flat Products From the Republic of Korea, 77 Fed.Reg. 14,501 (Dep't Commerce Mar. 12, 2012) (“ Final Results ”) which found de minimis margins for two respondents, Defendant–Intervenors herein. Defendant, United States, and Defendant–Intervenors, Pohang Iron & Steel Co., Ltd. and Pohang Coated Steel Co., Ltd. (collectively “POSCO”), and Hyundai HYSCO (“HYSCO”) oppose this action. The administrative review arises from the antidumping duty order covering certain corrosion-resistant carbon steel flat products (“CORE”) from Korea. See, e.g., Pl.'s Compl. at ¶ 1, Mar. 23, 2012, ECF No. 6; see also Certain Cold–Rolled Carbon Steel Flat Products and Certain Corrosion–Resistant Carbon Steel Flat Products From Korea, 58 Fed.Reg. 44,159 (Dep't Commerce Aug. 19, 1993) (antidumping duty order). Commerce initiated the 17th administrative review on September 29, 2010, for, among others, POSCO and HYSCO. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 75 Fed.Reg. 60,076, 60,077 (Dep't Commerce Sept. 29, 2010).

BACKGROUND

Both POSCO and HYSCO produce and sell several different product types of CORE subject to the dumping order in question. Commerce based its review of the subject merchandise on twelve different model-match criteria, one of which is temper rolling.² HYSCO produces and sells temper rolled (“TR”) and non-tempered rolled (“NTR”) merchandise in both the United States and its home market. In its review, Commerce chose the date of shipment as the date of sale for POSCO's U.S. sales in order to determine the dumping margin. Further, it considered HYSCO's NTR home market sales to be made within the ordinary course of trade. Finally, after it found a de minimis margin for POSCO for the third consecutive review, Commerce revoked the order with respect to POSCO. Final Results at 14,501; Issues and Decision Memorandum for the Final Results of the 17th Administrative Review of the Antidumping Duty Order on Certain Corrosion–Resistant Carbon Steel Flat Products from the Republic of Korea (2009–2010) cmts. 3, 5, 6, A–580–816, (Mar. 5, 2012) (“Issues and Decision Memorandum”), available at http:// enforcement. trade. gov/ frn/ summary/ Korea– south/ 2012– 5937– 1. pdf (last visited Dec. 4, 2013).

Plaintiffs challenge Commerce's selection of the shipment date as the date of sale for POSCO, see, e.g., Pl.'s Compl. at ¶ 10–11, and Commerce's determination that certain sales of NTR merchandise by HYSCO were within the ordinary course of trade. Id. at ¶ 16–17. Further, Plaintiffs challenge Commerce's revocation of the dumping order with respect to POSCO. Id. at ¶ 12–13.

For the reasons set forth below, the court sustains Commerce's selection of the shipment date as the date of sale for POSCO's U.S. sales, its findings that HYSCO's sales of NTR merchandise were within the ordinary course of trade, and its decision to revoke the antidumping duty order with respect to POSCO.

JURISDICTION

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2006),³ and 19 U.S.C. § 1516a(a).

DISCUSSION

Standard of Review

“The court shall hold unlawful any determination, finding or conclusion 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). To be in accordance with law, a decision must not be arbitrary and capricious, contrary to regulations, statutes or the Constitution, and must be supported by substantial evidence and reasoned explanations. See Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 41–43, 103 S.Ct. 2856, 2866–67, 77 L.Ed.2d 443 (1983); SKF USA Inc. v. United States, 630 F.3d 1365, 1373–74 (Fed.Cir.2011). Substantial evidence exists on the record when there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed.Cir.2003) ( quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126, 140 (1938)). However, the “substantiality of evidence must take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456, 467 (1951). Nevertheless, “the possibility of drawing two inconsistent conclusions from the evidence does not invalidate Commerce's conclusion as long as it remains supported by substantial evidence on the record.” Zhaoqing New Zhongya Aluminum Co. v. United States, 36 CIT ––––, ––––, 887 F.Supp.2d 1301, 1305 (2012) ( citing Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 465, 95 L.Ed. at 467–68).

Date of Sale

Commerce's determination that POSCO's date of sale should be based on the date of shipment is supported by substantial evidence and in accordance with law. Commerce calculated dumping margins in this case on a constructed export price (“CEP”) basis, so the date of sale for purposes of determining the U.S. price of the subject merchandise was the date the merchandise was first sold to a party not affiliated with POSCO. See19 U.S.C. § 1677a(b). The regulation instructs Commerce how to identify the date of sale generally. It provides:

Date of sale. In identifying the date of sale of the subject merchandise or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer's records kept in the ordinary course of business. However, the Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.

19 C.F.R. § 351.401(i) (2013). Thus, the regulation sets forth a presumption that “the Secretary normally will use the date of invoice” for the date of sale but “may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms.” 19 C.F.R. § 351.401(i) (2013). See Sahaviriya Steel Indus. Pub. Co. v. United States, 34 CIT ––––, ––––, 714 F.Supp.2d 1263, 1279 (2010) (“Thus, Commerce's date of sale regulation provides for a ‘rebuttable presumption’ that invoice date will normally be identified as the date of sale.” (citation omitted)), aff'd,649 F.3d 1371 (Fed.Cir.2011). Although Commerce's regulation provides that the date of sale will normally be the invoice date, Congress has “expressed its intent that, for antidumping purposes, the date of sale be flexible so as to accurately reflect the true date on which the material elements of sale were established.” Allied Tube and Conduit Corp. v. United States, 24 CIT 1357, 1370, 127 F.Supp.2d 207, 219 (2000).

Implicated in this case is what discretion the Secretary has to be “satisfied” that a date other than the invoice date is more appropriate as the date of sale. In other words, the question is whether record evidence supports a conclusion by the Secretary that the shipment date better reflects the date on which the exporter or producer established the material terms of sale. Material terms include price and quantity among others. See Sahaviriya Steel, 34 CIT at ––––, 714 F.Supp.2d at 1280.

Commerce found that “the material terms of sale were set at the time of shipment.” Issues and Decisions Memorandum at cmt. 6. Commerce relied on POSCO's questionnaire response regarding the date of sale, record documentation regarding when the material terms of sale were set, a long-standing business practice in the Korean steel industry, and the U.S. sales process for all four respondents. Issues and Decision Memorandum at cmt. 6 nn. 95–99. Further, it noted “HYSCO has reported ship date as date of sale consistently in previous reviews which the Department has accepted.” Id. at nn. 99.

POSCO's questionnaire responses and supporting documentation in the record establish POSCO's sales process. POSCO's U.S. affiliate, POSCO America Corporation (“POSAM”),...