Slip Op. 05-130 UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________________________ : COLAKOGLU METALURJI A.S., : : Plai ntiff, : : v. : : Before: Carman, Judge UNITED STATE S : : Court No. 04-00621 Defendant, : : and : : GERDAU AMERISTEEL CORP., : : Defendant-Intervenor. : ________________________________________________: [Upon review of the parties’ papers, this case is rema nded.]

OPINION

AND ORDER Dated: September 27, 2005 Lafave & Sailer LLP (

Arthur J. Lafave III, Francis J. Sailer ), Washington, D.C., for Plaintiff. Peter D. Keisler , Assistan t Attorne y G eneral ; David M. Cohen, Director, Commercial Litigation Branc

h, Civil Division, U.S. Department of Justice; Jeanne M. Davidson , Deputy Director, Commercial Litiga tion Branch, Civil Division, U.S. Department of Justice; David S. Silverbrand , Trial Attorney, Commerc ial Litigation Branc h, Civil Division, U.S. Department of Justice; Robert E. Nielsen , Of Counse l, Offic e of Chief Counsel for Imp ort Admini stration, U.S. Department of Commerce, f or Defe ndant. Brickfie ld, Burch ette, Ritt s &Stone PC (

Damon E. Xenopoulos ), Washington, D.C., for Defendant-Inte

rvenor.Court No. 04-00621 Page 2 O PINI ON CARMAN, Judge: This case is before this Court on a motion for judgment on the agency record filed by

Plaintiff Colakoglu Metalurji A.S. (“Plaintiff” or “Colakoglu”). Plaintiff challen ges the final determinat

ion by the Unite d States De

partmen t of Commer

ce (“D efenda

nt” or “Commerce”) in Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg. 64,731 (Dep’t Commerce Nov. 8, 2004) (final determination) (“ Final Resu lts ”). The

sole issue

in this case is the date of sale. Plaintiff challenge s Commerce’s use of the invoice/shipment [hereinafter invoice] d

ate rather than t

he contr act/ord er [here inafter

contract] date as t

he date o f sale to determine the dumping margin. Commerce ha s voluntarily requested tha t this case be remanded to review this issue. This Court grants Commerce’s request for voluntary remand. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i) (2000). B ACKGROUND On April 17, 1997, Commerce issued an antidumping duty order covering concre

te steel reinforcing bars from Turkey

. Certain Steel Concrete Reinforcing Bars from Turkey, 62 Fed. Reg. 18,748 (Dep’t Commerce Apr. 17, 1997) (a ntidumping duty order)

. The list of Turkish producers and exporters to be reviewed included Plaintiff for the period of review from April 1, 2002, through March 31, 2003. Plaintiff completed the questionnaires and re sponded that the date of sale is the “contract or order c onfirmation . . . because, without exception, all material terms and condition s were f

ixed on those

dates for all sale s” during this perio d. (Pl.’s B r. in Supp. of Its R. 56.2 Mot. for J. on the Agency R. (“Pl.’s Mot.”) at 3.) On May 5, 2004, Commerce published the preliminary results of the review, using the invoice date as the da te ofCourt No. 04-00621 Page 3

sale. Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg. 25,063 (Dep’t Co mm erc e Ma y 5, 1 997 ) (p rel im in ary re sul ts of a nt id um pi ng a dm in is tra ti ve r evi ew) . In response , Plaintiff

submitted c ase and r

ebuttal b riefs to s

upport its a ssertion t

hat the c ontract

date was the proper date of sale. I n the Final Resu lts , however, Commerce reaffirmed its pre vious decision to use the invoice date as date of sale “bec ause it concluded the material terms of the sale (price and quantity

) were not established” until the that time. (Def.’s Mem. in Resp. to Pl.’s Mot. for J. on the Agency R. (“Def.’s Resp.”) at 3.) On November 26, 2004, Commerc e issued a correction to the Final Results, noting that Plaintiff made no home market sales be low the cost of production for the period of review. Certain Steel Concrete Reinforcing Bars from Turkey, 69 Fed. Reg. 68,883 (Dep’t Commerce Nov. 26, 2004) (correction to final determination). Plaintiff timely appealed the Final Resu lts to this Cour t. Defendant-Inte

rvenor, an interested party in the underlying

review, opposes Plaintiff and Defendant’s requests for remand a nd rather seeks that this Court uphold Commerce’s determination regarding the da te of sale. (Def.-I

ntervenor’s Br. in Opp’n to Pl.’s Mot. for J. on the Agency

R. at 1, 19.) S TAND ARD O F R EVIEW In reviewing

a challenge to Commerce’s final dete rmination in an antidumping administrative review, the Court will uphold Commerce’s decision unless it is “unsupported by substantial evidence on the record, or otherwise not in ac cordance with law. . . .” Tariff Act of 1930, § 516A(b)(1)(B) (codified as a mended at 19 U.S.C. § 1516a(b)(1)(B)(i) (2000) ).Court No. 04-00621 Page 4 D ISCU SSI ON The issue in this case is whether Commerce should have used the contra ct date or the invoice d ate as th e date of

sale in the

administr

ative re view. The

regula tion which

gover ns date of sale provides:

In ident ifying th e date o f sale of the subj ect me rchand ise or forei gn like product, the Secretary normally will use the date of invoice , as recorded in the exporter or producer’s r ecords kept in the ordinary course of business. However, the Secreta ry 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 e xporter or producer establishes the material terms of sale. 19 C.F.R. § 351.401( i) (2004) . Upon a pl ain rea ding of t he lang uage, this reg

ulation pr ovides a rebutta ble pres umption tha

t the invoic e date will be iden tified as the “dat e of sale .” According to Defend ant, this p resumption is based upon the f

act that t he mater ial terms of sale a re norma lly not determined until the time of invoice or shipment. (Def.’s Resp. at 5.) An exporter or producer, however, may

attempt to rebut that presumption by prese nting evidence that establishes the mater ial terms of sale w ere fixed

at a diff erent time. Commer

ce then has the pow er to exercise discretion by using that different time as the date of sale. 19 C.F.R. § 351.401(i). As Plaintiff urged, “The ‘date of sale ’ is important because home market sales in the same month as the date of the U.S. sale are the first g roup of sales considered for price-to-pr ice comparisons in Commerce’s antidumping duty margin analy sis in an administrative review.” (Pl.’s Mot. at 3.) Plaintiff further states that “[i]n a hyperinf lationary ec onomy [such as Turkey’s], moreove

r, there can be a significa nt difference in the home market sales price if one looks at the price, e.g. , in April as compared to June or July.” Id. at 4. Plain tiff asse rts that it established on the record that there were no material changes to the essential terms – price andCourt No. 04-00621 Page 5

quantity – of the contra

ct date. Plaintiff explains that any minor differ ences in quantity orde

red and shipped were within the “tolerances containe d in the contract or purchase order with re spect to each sale.” (Pl.’s Mot. at 6-7.) Consequently , Plaintiff challenges Commerce’s usag e of the later-in-time invoice date rather than the ea rlier-in-time contract date as the date of sa le as unsupported by the re cord and not in accordance with law. (Pl.’s Mot. at 16.) I n response, Defendant “respectfully

request[s] that the Court remand this case to Commerce so that it may reconsider whether, based upon its established past prac tice, it reasonably

applied its treatment of deliver y to leranc es to the f

acts at is sue here .” (Def

.’s Resp. at 5.) Sinc e Defe ndant volu

ntarily requested remand on the issue of date of sale, this Court g rants this request and no further discussion is necessary a

t this time. For the aforementioned reasons, it is hereby ORDERED that Plaintiff’s motion for judgment on the agency record is granted insofar as the remand request but denied as to dictate a par ticular determination; and it is further ORDERED that this case in its entirety is remande d to the U.S. Department of Commerce; and it is further ORDERED that the U .S. Depar tment of Co mmerce shall file its Remand

Results wit

h this Court no later than November 30, 2005.

/s/ Gregory W. Carman Gregory W. Carman Judge

Dated: September 27, 2005 New York, New York