Commerce Failed to Explain Departure from Sales Date Practice, Turkish Rebar Makes Argue

The Commerce Department mistakenly relied on the invoice dates rather than contract dates as dates of U.S. sales, resulting in a miscalculation of duties in the 2020-2021 antidumping duty review on steel concrete reinforcing bar from Turkey, Turkish rebar exporters Kaptan and Colakoglu said in a Sept. 18 brief at the Court of International Trade. The brief came in support of a motion for judgment, which asked the court to remand the case to Commerce for reconsideration of the date of sale for U.S. sales and recalculation of the antidumping rates (Kaptan Demir Celik Endustrisi Ve Ticaret v. U.S., CIT # 23-00059).

Commerce found the later shipment or invoice dates to be more appropriate dates of sale although Kaptan said that it and Colakoglu provided "ample evidence" showing that the material terms of sales did not change after the contract date. Commerce improperly ignored its obligation to review the unique circumstances of this review when it made its date of sale determination, Kaptan said.

Commerce’s criteria for establishing the date of sale is the first point at which the terms are fixed, Kaptan said. That point is most commonly “when the seller demands payment" but Commerce may select another date if the material terms of sale are finally established then. The CIT has ruled that flexibility in date of sale analysis is "a natural corollary" of Commerce’s obligation to determine dumping margins as accurately as possible, Kaptan said.

The department claimed that it used Kaptan’s and Colakoglu’s invoice dates as the U.S. date of sale as part of its "longstanding practice" of using either the invoice of shipment date "if no other date is more appropriate.” Kaptan argued that Commerce’s own regulations, practice, and well-established court precedent all support a finding that the contract date was the appropriate date of sale in this review.

Commerce has discretion and an established practice in determining the date of sale, Kaptan said. The department has "regularly found the contract date to be the appropriate date of sale where there are no changes to the major material terms of the sale in the final invoice." Commerce has argued that its findings in one review are not binding on a subsequent review and the date of sale is an issue of fact, unique to each review. Kaptan said that it agreed that Commerce must consider the facts put on the record in each case and said that the facts in this case point to using the contract date.

Whether the material terms of sale in the contracts changed before the invoice in this review is the only relevant question, Kaptan said. Colakoglu provided dozens of examples showing that there were no changes to the material terms of sale or deviations from the sales order contract after the contract date and before the invoice date, meaning that Commerce had no reason to use any later date, Kaptan said.

The key question in Commerce’s analysis is when the material terms of sale are set. Commerce has an established practice for determining that and it failed to provide a reasonable explanation for deviating from that practice here, Kaptan said.