Invoice Dates Considered the Usual 'Date of Sale' in Reviews Unless Rebutted, US Says

The U.S. pushed back Sept. 20 against a Turkish steel exporter’s argument that the Commerce Department shouldn’t have determined during a review that its “sale dates” are the invoice dates, rather than dates of contract (see 2407250026) (Kaptan Demir Celik Endustrisi ve Ticaret v. United States, CIT # 24-00018).

Exporter Kaptan Demir Celik Endustrisi ve Ticaret argues that because the Tariff Act of 1930 doesn’t define the phrase “date of sale,” the department approaches the matter neutrally and determines on a case-by-case basis in reviews whether to look to a mandatory respondent’s invoice dates, shipment dates, contract dates or other information. But this isn’t true, the government said.

First, it argued that the exporter is wrong that this case falls under Loper Bright, the Supreme Court's recent decision in a case, overturning Chevron deference; the term “date of sale” isn’t actually ambiguous, it said. The Uruguay Rounds Act and its Statement of Administrative Action both note a clear preference for invoice dates, it said. And Commerce itself, in its own regulations, notes its preference for invoice dates, it said. This regulation, it noted, has been upheld by the courts in the past.

The government agreed that Commerce will sometimes use contract dates when it is clear that the material terms of sale -- such as price and quantity -- have been set at that time. Under its usual practice, contracting parties “must reach a ‘meeting of the minds’ regarding the material terms of sale in order to depart from the invoice date presumption,” it said.

But Kaptan’s contracts don’t necessarily set those final terms, it said. Rather, as the exporter explained in a questionnaire response, “the parties may amend the latest shipment date, size breakdown and, to a lesser extent, quantity until the goods are shipped/invoiced.

As a result, quantity is still potentially up in the air when Kaptan’s sales contracts are signed, it said. And though Kaptan provided data indicating that, during the period of review, no quantity changes had been made between any contract and invoice date, but this “mischaracterizes the prevailing standard.”

“[I]f the material terms may change up until the earlier of the shipment or invoice date then, they are not set at the contract date, as no meeting of the minds has occurred,” it said.

Petitioner Rebar Trade Action Coalition filed its own response Sept. 20 as well.