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.
Court No. 12-00071
United States Court of International Trade
Dec. 27, 2013
Slip Op. 13-156
KELLY, Judge
Accordingly, the Government having agreed to redress the Plaintiff in full, no controversy or injury remains for the court to address. Defendant‘s motion for entry of judgment in Plaintiff‘s favor must therefore be granted and Plaintiff‘s motion to compel discovery must be dismissed as moot.
CONCLUSION
As explained above, because the Government has agreed to provide all the relief that is legally available to Shah Bros.—by reliquidating the merchandise in question at the tariff and tax rates claimed in the amended complaint—no live controversy remains between the parties. Absent a live controversy, this Court will not rule on an abstract question regarding the lawfulness of the Government‘s methodology for classifying the merchandise that it has now agreed to reclassify. Accordingly, judgment shall be entered for the Plaintiff. Plaintiff‘s outstanding motion to compel discovery is dismissed as moot.
It is SO ORDERED.
2010) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (discussing the well-settled principle that “a defendant‘s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice” unless it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur“) (internal quotation marks and citations omitted))). Here, the Government is not merely voluntarily ceasing a challenged practice. It is conceding the case and will be bound by the judgment against it. As to the Government‘s classification of any future entries of Shah Bros.’ merchandise, such action may be challenged—and, as appropriate, redressed—regardless of whether judgment is entered in this case pursuant to Defendant‘s confession thereto or a complete litigation on the merits. See, e.g., Avenues in Leather, Inc. v. United States, 317 F.3d 1399, 1403 (Fed.Cir.2003) (“[E]ach new entry is a new classification cause of action, giving the importer a new day in court.“) (citation omitted).
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,
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
DISCUSSION
Standard of Review
“The court shall hold unlawful any determination, finding or conclusion
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. See
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.
Commerce found that “the material terms of sale were set at the time of shipment.” Issues and Decision 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“), negotiates and executes purchase orders with United States customers.4 Def.‘s Opp‘n Pl.‘s Mot.‘s J. at 19, Feb. 27, 2013, ECF No. 72; see also Mem. POSCO POHANG Coated Steel Co., Ltd., Opp‘n Pl.‘s and Pl.-Interv.‘s 56.2 Mots.’ J. at 25-27, Feb. 25, 2013, ECF No. 70; POSCO‘s Dec. 20, 2010 Sect. A Resp. at A-18, A-24, PD I 52, CD I 8 (Dec. 20, 2010), ECF No. 32 (May 7, 2012). Then, on a monthly basis the U.S. customer sends an email to POSAM outlining the quantities and types of products it would like to order. Def.‘s Opp‘n Pl.‘s Mot.‘s J. at 19. Next, POSAM enters the order into POSCO‘s computer system, “which is the basis for generating an order sheet.” Id. POSCO then manufactures the products and, after shipping arrangements are made, ships the products directly to the U.S. customer. Id.
Based upon the foregoing description of the sales process as supported by POSCO‘s questionnaire responses, a reasonable mind could conclude the parties intend the quantity and delivery terms to be fixed when POSCO ships the merchandise to the U.S. customer. In Commerce‘s Section A questionnaire dated October 29, 2010, Commerce requested POSCO to report its date of sale for home market sales and U.S. sales. See POSCO‘s Dec. 20, 2010 Sect. A Resp. at A-22.5 POSCO responded
Please provide a copy of all sales documents which set the material terms of sale, including quantity and price, agreed upon between POSCO America Corporation (POSAM) and your unaffiliated U.S. customer for the top five largest U.S. sales by quantity: SEQUS [[Confidential Data Deleted]]. Furthermore, please state if there were any changes to the material terms of sale following shipment for any of your U.S. sales during the period of review.
POSCO‘s May 4, 2011 Supp. Sect. A–C QNR at 1, PD I 124, CD I 39 (May 4, 2011), ECF No. 32 (May 7, 2012). POSCO responded that “POSAM and its unaffiliated customers generally set price and quantity terms through e-mail correspondence.” Id. POSCO further cites documents attached at Exhibit S-1. Each sequence at Exhibit S-1 contains several documents including a purchase order, an order sheet, an invoice issued between POSCO and POSAM, a packing list, a bill of lading, an entry summary, and finally a commercial invoice between POSAM and the U.S. customer. See id. at Ex. 1.
POSCO also discusses possible changes to material terms including quantity and delivery destination that can occur after the purchase order but before shipment. Id. at 1. Finally, POSCO states that shipment date is the best date of sale:
because it reflects the date on which the material terms of sale become firmly established. Indeed, the two changes noted above occur on or before the date of shipment, which is subsequent to the date of the initial order. Using shipment date as the date of sale is also consistent with the Department‘s longstanding practice, including in this proceeding, that the date of sale cannot be later than the date of shipment of the subject merchandise to the unaffiliated U.S. customer.
Id. at 1-2.
In this supplemental questionnaire, Commerce also noted [[Confidential Data Deleted]] and asked for “calculation worksheets and source documentation [[Confidential Data Deleted]].” Id. POSCO responded to this query by stating “[t]he difference between POSCO‘s price to POSAM and POSAM‘s price to the unaffiliated customer is attributable to [[Confidential Data Deleted]].” Id. POSCO provided a worksheet showing calculations at Exhibit S-3. The worksheet provided by POSCO shows the values it placed on each of these expenses. After adding them all together the total equals the price invoiced from POSAM to the U.S. customer.
Commerce probed further and on July 20, 2011 Commerce issued another supplemental questionnaire. See Dept.‘s July 20, 2011 Supp. Sect. A–C QN, PD I 167, CD I 58 (Jul. 20, 2011), ECF No. 32 (May 7, 2012). It asked for more date of sale information. Id. at 2.
- You state that “there were no changes to the material terms of sale following shipment for any of {your} U.S. sales during the POR” on page 1 of your May 2, 2011, supplemental questionnaire response (May QNR Response). Please pro-
vide the documents that finalizes [sic] the material terms of sale (i.e., price, quantity, delivery terms, and payment terms) at the date of shipment and that shows that such terms did not change after the shipment date for (i.e., SEQUS [[Confidential Data Deleted]] your U.S. sales during the POR. - You stated in your May QNR Response that “POSAM and its unaffiliated customers generally set price and quantity terms through email correspondence.” However, [[Confidential Data Deleted]]. All of the other sales documents which you submitted [[Confidential Data Deleted]]. Please provide sales documents which set the material terms of sale between POSAM and the unaffiliated U.S. customer for your top five largest U.S. sales by quantity (i.e., SEQUS [[Confidential Data Deleted]]).
- You stated that [[Confidential Data Deleted]] For SEQUS [[Confidential Data Deleted]], provide invoices or other source documentation clearly showing the actual amounts paid for the following expenses: [[Confidential Data Deleted]] In addition, you only provided a calculation worksheet for SEQU [[Confidential Data Deleted]]. Please provide calculation worksheets for the other four sales, specifically SEQUS [[Confidential Data Deleted]].
Id. POSCO responded to the July 20, 2011 questionnaire on August 3, 2011 providing Commerce with documents and worksheets regarding international freight, U.S. brokerage and handling, marine insurance, and U.S. duty. POSCO‘s Aug. 3, 2011 Supp. Sect. A–C QNR, PD I 171, CD I 62 (Aug. 3, 2011), ECF No. 32 (May 7, 2012).
The record taken as a whole contains substantial evidence for a finding by Commerce that the shipment date reflected the date on which the parties established the material terms. POSCO asserted that the shipment date was the date of sale in its questionnaire. As discussed above, Commerce did not merely accept this assertion at face value but probed further and elicited information and documentation concerning the circumstances surrounding POSCO‘s sales. Commerce reasonably made its date of sale determination based upon the responses it received, Commerce‘s knowledge of the industry, and the lack of any evidence, that would undermine or contradict its findings.
The Plaintiffs claim that the lack of any single document memorializing the material terms being fixed at the time of shipment precludes shipment date as a viable date of sale. See Mem. Supp. Pl. U.S. Steel Mot. J. at 15, Sept. 24, 2012, ECF No. 46; Br. Supp. Nucor 56.2 Mot. at 18-19, Sept. 24, 2012, ECF No. 45; Oral Arg. at 1:08:28-54, Oct. 28, 2013, ECF No. 100. Nothing in the regulation requires Commerce to base its decision upon such a single document. This argument ignores the language of the regulation. Commerce may choose a date other than the date of invoice as the date of sale if it satisfies itself that another date better represents when the parties established the material terms. Here, it relied upon the questionnaire response, its knowledge of the industry, and its understanding of how the transactions took place as supported by record evidence.
Moreover, despite protestations to the contrary, no documents or evidence relied upon by the Plaintiffs undercuts Commerce‘s findings. Plaintiffs point to the offer sheet, the purchase order, and the commercial invoice, note that the prices on each are different, and argue that there-
Plaintiffs argue strongly that Commerce‘s practice of using the shipment date as the date of sale when shipment date precedes invoice date is not in accordance with law because it “contradicts Commerce‘s own regulations.” Mem. Supp. Pl. U.S. Steel Mot. J. at 20. This argument holds some weight. The regulation states that the Secretary “normally will use the date of invoice” for the date of sale.
invoice date would appear to contradict this language. See Mittal Steel Point Lisas Ltd. v. United States, 31 CIT 638, 647, 491 F.Supp.2d 1222, 1231 (2007) (stating that Commerce‘s practice “is in contradiction to Commerce‘s statement in the [regulation‘s] preamble” but noting other courts have “implicitly approved” the practice), aff‘d, 548 F.3d 1375 (Fed.Cir.2008).
While the second sentence of the regulation allows Commerce to choose a date other than the invoice date, it requires that Commerce be “satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale.”
Ordinary Course of Trade
Antidumping duties should be “an amount equal to the amount by which the normal value exceeds the export price (or the constructed export price) for the merchandise.”
the conditions and practices which, for a reasonable time prior to the exportation of the subject merchandise, have been normal in the trade under consideration with respect to merchandise of the same
regulation in this manner would not be permissible. If Commerce has determined through subsequent implementation of the regulation that a date other than the invoice date normally will better reflect the date of sale there are adequate procedures for changing the regulation. See, e.g., Administrative Procedure Act,
class or kind. The administering authority shall consider the following sales and transactions, among others, to be outside the ordinary course of trade:
(A) Sales disregarded under section
1677b(b)(1) of this title.(B) Transactions disregarded under section
1677b(f)(2) of this title.
Other than for the two statutory exclusions mentioned above, the Tariff Act provides “little assistance in determining what is outside the scope of that definition.” NSK Ltd. v. United States, 25 CIT 583, 599, 170 F.Supp.2d 1280, 1296 (2001). The court has held that Commerce has discretion to determine what sales are outside the ordinary course of trade. See, e.g., Bergerac, N.C. v. United States, 24 CIT 525, 536-37, 102 F.Supp.2d 497, 507 (2000); Torrington Co. v. United States, 25 CIT 395, 402-03, 146 F.Supp.2d 845, 861 (2001), aff‘d, 62 Fed.Appx. 950 (Fed.Cir.2003); U.S. Steel Group v. United States, 25 CIT 1293, 1300, 177 F.Supp.2d 1325, 1333 (2001). Commerce‘s regulations in
[t]he Secretary may consider sales or transactions to be outside the ordinary course of trade if the Secretary determines, based on an evaluation of all of the circumstances particular to the sales in question, that such sales or transactions have characteristics that are ex-
traordinary for the market in question. Examples of sales that the Secretary might consider as being outside the ordinary course of trade are sales or transactions involving off-quality merchandise or merchandise produced according to unusual product specifications, merchandise sold at aberrational prices or with abnormally high profits, merchandise sold pursuant to unusual terms of sale, or merchandise sold to an affiliated party at a non-arm‘s length price.
In applying its totality of the circumstances test, Commerce does not give particular weight to any single factor. Instead, Commerce determines which factor may be more or less significant based on the case at hand. See, e.g., Murata, 17 CIT at 263, 820 F.Supp. at 606. In making its determination, Commerce looks “at market conditions, practices, and other sales” in the home market, U.S. Steel Group, 25 CIT at 1300, 177 F.Supp.2d at 1333, and “it then compares the transactions in question to see if they exhibit characteristics that are extraordinary for the market.” Id. See also Mantex, Inc. v. United States, 17 CIT 1385, 1403, 841 F.Supp. 1290, 1306 (1993). Commerce has discretion to determine when an unusual circumstance will render sales outside the ordinary course of trade. See
In addition to the regulations, the court has commonly looked to the Statement of Administrative Action (“SAA“) to discern Congress’ intent regarding ordinary course of trade. See, e.g., Monsanto Co. v. United States, 12 CIT 937, 940, 698 F.Supp. 275, 278 (1988) (stating that the “commonly understood purpose of the ordinary course of trade provision is to prevent dumping margins from being based on sales which are not representative, for example, sales of obsolete merchandise.“). The SAA states that
Commerce may consider other types of sales or transactions to be outside the ordinary course of trade when such sales or transactions have characteristics that are not ordinary as compared to sales or transactions generally made in the same market. Examples of such sales or transactions include merchandise produced according to unusual product specifications, merchandise sold at aberrational prices, or merchandise sold pursuant to unusual terms of sale. As under existing law, amended section 771(15) does not establish an exhaustive
list, but the Administration intends that Commerce will interpret section 771(15) in a manner which will avoid basing normal value on sales which are extraordinary for the market in question, particularly when the use of such sales would lead to irrational or unrepresentative results.
Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 834 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4171 (“SAA“). Thus, although Commerce‘s regulations reflect some of the language of the SAA, the SAA demonstrates a particular concern with extraordinary sales that would lead to “irrational or unrepresentative results.” Id.
Finally, without “adequate evidence of extraordinary characteristics,” U.S. Steel Group, 25 CIT at 1300, 177 F.Supp.2d at 1333, Commerce presumes the contested sales were made in the ordinary course and includes them in its margin calculations. See, e.g., U.S. Steel Group, 25 CIT at 1300, 177 F.Supp.2d at 1333; Bergerac, 24 CIT at 538, 102 F.Supp.2d at 509; NTN Bearing Corp. of Am. v. United States, 19 CIT 1165, 1172, 903 F.Supp. 62, 68-69 (1995). The court has characterized the burden imposed on the party challenging this presumption as requiring “a complete explanation of the facts which establish the extraordinary circumstances rendering particular sales outside the ordinary course of trade ....” NTN Bearing Corp. of Am. v. United States, 19 CIT 1221, 1229, 905 F.Supp. 1083, 1091 (1995). See also Bergerac, 24 CIT at 538, 102 F.Supp.2d at 509; Koyo Seiko Co. v. United States, 20 CIT 772, 783, 932 F.Supp. 1488, 1497-98 (1996).
The court sustains Commerce‘s determination that HYSCO‘s NTR sales were made within the ordinary course of trade as made in accordance with law and as supported by substantial evidence. Commerce properly considered the totality of the circumstances, including the number and types of customers that purchased NTR merchandise, the circumstances surrounding those sales, the average quantities purchased, the channels of distribution, and terms of sale. Issues and Decision Memorandum at cmt. 3. It found that the number of customers was significant. Id. (citing to HYSCO‘s Rebuttal Brief at 17, CD II EXT_051205 (Jan. 17, 2012), ECF No. 32. (May 7, 2012)). It found “none of those customers were otherwise unique in their purchases,” Issues and Decision Memorandum at cmt. 3 (citing to HYSCO‘s Rebuttal Brief at 17), and found no evidence that the categories of customers for NTR sales were different from TR sales. Issues and Decision Memorandum at cmt. 3. Neither did Commerce find anything unusual about the average purchase quantities. Id. It found no evidence that the terms of sale or channels of distribution were different for NTR sales than for TR sales. Id. U.S. Steel points to no evidence in the record that refutes any of these findings. See Mem. Supp. Pl. U.S. Steel Mot. J. at 24-30. Commerce‘s decision, based upon the totality of the circumstances, that HYSCO‘s NTR sales were not outside the ordinary course of trade is therefore reasonable and made in accordance with law.
Instead of directly challenging Commerce‘s factual findings on appeal, U.S. Steel contends that Commerce‘s inclusion of HYSCO‘s NTR sales in the normal value calculations was not in accordance with law. Id. at 25. U.S. Steel claims the SAA standard is controlling, and that it requires Commerce to exclude extraordinary sales when those sales produce irrational or unrepresentative results on the dumping margin.9 See id. at 25-26. See also SAA
U.S. Steel‘s argument relies partly on the fact that [[Confidential Data Deleted]] of the time HYSCO‘s home market sales are TR. However, neither Commerce‘s regulations nor the SAA requires sales to be excluded because they are comparatively [[Confidential Data Deleted]] in volume, but only if, for some reason, those sales are not representative of the market in question. See NTN Bearing Corp. of Am., 27 CIT at 171, 248 F.Supp.2d at 1291 (upholding Commerce‘s determination that respondent‘s sample sales and high profit sales were in the ordinary course of trade because there was no evidence that “the transactions at issue possessed some unique and unusual characteristic that make them unrepresentative of the home market ...“), appeal dismissed on motion to withdraw, 81 Fed.Appx. 318 (Fed.Cir.2003).11 Indeed, the court has explicitly
tions on sales that are ‘extraordinary for the market in question’ and cannot use non-ordinary sales that lead to ‘irrational or unrepresentative results.‘” Mem. Supp. Pl. U.S. Steel Mot. J. at 26. As such, plaintiff argues “Commerce does not have any discretion in the matter,” because when there exists “a class of extraordinary sales that by themselves produce an irrational result,” the SAA requires those sales to be excluded from NV calculations. Id. at 26.
Some potentially extraordinary sales characteristics that Commerce might consider in administering this test include sales where the merchandise is “off-quality,” made with “unusual product specifications,” or “sold pursuant to unusual terms of sale.”
U.S. Steel argues that the NTR sales do have unusual physical and production characteristics because they represent [[Confidential Data Deleted]] of HYSCO‘s subject home market sales and therefore they are, by definition, different from [[Confidential Data Deleted]] of HYSCO‘s subject home market sales both in terms of their physical characteristics and how they are produced. Mem. Supp. Pl. U.S. Steel Mot. J. at 26. This argument, if accepted, would inappropriately convert an inquiry concerning physical characteristics or production process into a question of numbers. U.S. Steel makes no argument that the sales themselves have unusual attrib-
utes, such as sales of off-quality merchandise, or of merchandise made pursuant to unusual specifications. See id. at 26-29.
Second, U.S. Steel points to the lack of paper documentation for HYSCO‘s NTR sales to argue that they are “inherently unverifiable” and, as such, extraordinary. Id. at 27-28. This contention fairs no better. Commerce found that the way in which the NTR sales were made was not unusual. Issues and Decision Memorandum at cmt. 3. In the Issues and Decision Memorandum, Commerce found that “the number of customers that purchase non-temper rolled merchandise is significant, and that none of those customers were otherwise unique in their purchases of home market sales of subject merchandise from HYSCO.” Issues and Decision Memorandum at cmt. 3. U.S. Steel says nothing about whether the lack of a paper trail is unusual either for HYSCO or sales of NTR merchandise in the home market generally. Mem. Supp. Pl. U.S. Steel Mot. J. at 27-28.
U.S. Steel then argues that, per the SAA standard, these sales should be excluded because of their unrepresentative impact on the dumping margin. Id. at 28. U.S. Steel contends that it would be irrational to allow [[Confidential Data Deleted]] of sales “to control the outcome of a case ....” Id. at 28. U.S. Steel relies upon the language of the SAA which provides that Commerce is to “avoid basing normal value on sales which are extraordinary ... particularly when the use of such sales would lead to irrational or unrepresentative results.” SAA at 834. For Commerce to consider the impact of the sales on the dumping margin, the language of the SAA first requires that the sales
“Commerce reasonably exercised its discretion in requiring NTN to provide evidence that its sample ... sales were outside the ordinary course of trade.” NTN Corp., 28 CIT at 139, 306 F.Supp.2d at 1347.
Based on the foregoing, Commerce‘s decision to reject U.S. Steel‘s argument that HYSCO‘s NTR home market sales were outside the ordinary course of trade was made in accordance with law and supported by substantial evidence.
Revocation
Congress provided for the revocation of an antidumping order in
(d) Revocation of order or finding; termination of suspended investigation
(1) In general
The administering authority may revoke, in whole or in part, a countervailing duty order or an antidumping duty order or finding, or terminate a suspended investigation, after review under subsection (a) or (b) of this section....
(e) Request for revocation or termination—
(1) Antidumping proceeding. During the third and subsequent annual anniversary months of the publication of an antidumping order or suspension of an antidumping investigation, an exporter or producer may request in writing that the Secretary revoke an order or terminate a suspended investigation under paragraph (b) of this section with regard to that person if the person submits with the request:
(i) The person‘s certification that the person sold the subject merchandise at not less than normal value during the period of review described in
§ 351.213(e)(1) , and that in the future the person will not sell the merchandise at less than normal value;(ii) The person‘s certification that, during each of the consecutive years referred to in paragraph (b) of this section, the person sold the subject merchandise to the United States in commercial quantities; and
(iii) If applicable, the agreement regarding reinstatement in the order or suspended investigation described in paragraph (b)(2)(iii) of this section.
(2)(i) In determining whether to revoke an antidumping duty order in part, the Secretary will consider:
(A) Whether one or more exporters or producers covered by the order have sold the merchandise at not less than normal value for a period of at least three consecutive years;
(B) Whether, for any exporter or producer that the Secretary previously has determined to have sold the subject merchandise at less than normal value, the exporter or producer agrees in writing to its immediate reinstatement in the order, as long as any exporter or producer is subject to the order, if the Secretary concludes that the exporter or producer, subsequent to the revocation, sold the subject merchandise at less than normal value; and
(C) Whether the continued application of the antidumping duty order is otherwise necessary to offset dumping.
(ii) If the Secretary determines, based upon the criteria in paragraphs
(b)(2)(i)(A) through (C) of this section, that the antidumping duty order as to those producers or exporters is no longer warranted, the Secretary will revoke the order as to those producers or exporters.
The statute “provides minimal guidance” to Commerce and is “silent as to the conditions that might warrant the revocation of an antidumping duty order or the particular circumstances that would trigger such an action.” Sahaviriya Steel, 649 F.3d at 1376. Thus, Commerce has discretion in making a revocation determination including whether the requesting party satisfied the criteria for revocation. See, e.g., Feili Group (Fujian) Co. v. United States, 34 CIT —, —, 724 F.Supp.2d 1358, 1369 (2010).
Commerce‘s determination is supported by substantial evidence and in accordance with law. Commerce explained that it was satisfied POSCO fulfilled the
Plaintiffs’ arguments that revocation was unsupported by substantial evidence or otherwise not in accordance with law are unavailing. First, as discussed above, Plaintiffs’ claim that the revocation was based in part on Commerce‘s erroneous date of sale determination lacks merit.
Second, Plaintiffs argue that Commerce failed to address record evidence of specific market and economic factors which showed a likelihood of future dumping and thus that the continued application of the dumping order was necessary. Without nuance, U.S. Steel argues that POSCO‘s increasing production capacity and other business practices along with lost market share by domestic producers show a likelihood of future dumping. Mem. Supp. Pl. U.S. Steel Mot. J. at 23-24. In greater detail, Nucor argues that future dumping is likely because: (i) the economic downturn made the last three reviews unrepresentative, (ii) POSCO‘s shipment volumes and market share in Korea have declined while its production has increased, and (iii) it has established a “strategic partnership” with Union Steel Manufacturing Co. Ltd. (another respondent). Br. Supp. Nucor 56.2 Mot. at 12-16. However, assertions of market conditions are not evidence that the order is “otherwise necessary to offset dumping.”
Finally, Nucor argues that Commerce was unable to complete verification with regard to POSCO and thus, its determination was unsupported by substantial evidence and otherwise not in accordance with law. Commerce has discretion in how it conducts its verification process. See Floral Trade Council v. United States, 17 CIT 392, 398-99, 822 F.Supp. 766, 771-72 (1993). In its Issues and Decision Memorandum, Commerce correctly notes that it is “afforded [ ] a degree of latitude in implementing its verification procedures, and that the Department is not required to verify each item submitted in respondents’ questionnaire.” Id. at cmt. 5, n. 88; see also Floral Trade Council, 17 CIT at 399, 822 F.Supp. at 772 (internal citations omitted). Contrary to Nucor‘s assertion that Commerce must conduct a “completeness test,” Br. Supp. Nucor 56.2 Mot. at 11-12, “verification is an audit process that selectively tests accuracy and completeness of a respondent‘s submissions.” Issues and Decision Memorandum at cmt. 5, n. 89 (citing Bomont Indus. v. United States, 14 CIT 208, 209, 733 F.Supp. 1507, 1508 (1990)); see also Floral Trade Council, 17 CIT at 398, 822 F.Supp. at 771. Although verification was not completed, it did not need to be complete for this court to sustain Commerce‘s finding. See Floral Trade Council, 17 CIT at 399-400, 822 F.Supp. at 772; Hercules, Inc. v. United States, 11 CIT 710, 726, 673 F.Supp. 454, 469-70 (1987).
Therefore, Commerce‘s decision to revoke the order with respect to POSCO is supported by substantial evidence and in accordance with law.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for judgment on the agency record is denied. Judgment will be entered accordingly.
CLAIRE R. KELLY
JUDGE