Laws Express No Preference for Setting Dates of Sale, Turkish Steel Exporter Argues

In response to the government (see 2409240057), a Turkish steel exporter again said Nov. 1 that the dates of its U.S. sales should be determined by its contract dates, not the dates on its invoices (Kaptan Demir Celik Endustrisi ve Ticaret v. United States, CIT # 24-00018).

Relying on Loper Bright, exporter Kaptan Demir Celik Endustrisi ve Ticaret argued in a July motion for judgment (see 2407250026) that Commerce’s decision to rely on invoice sales in calculating Kaptan’s export prices for an antidumping duty review wasn’t the best interpretation of the Tariff Act of 1930. The law, the history of the act and Commerce’s own regulations indicate that the sales date should be considered the point at which sales terms are finalized, it said.

In its response, the U.S. claimed that Loper Bright doesn’t apply to this case because the term “date of sale” isn’t ambiguous -- it said that both the Uruguay Rounds Act and its Statement of Administrative Action clearly indicate a preference for considering invoice dates as an exporter’s dates of sale.

But the Court of International Trade should “employ its ‘full interpretive toolkit’” in deciding whether this is the best understanding of the applicable law, Kaptan said. It called Commerce's “presumption” that the best dates of sale are generally invoice dates an “impermissible” one and asked CIT for a remand so the department could “conduct an independent analysis, free of” that presumption.

“Loper Bright reiterates that it is ‘emphatically the province and duty of the judicial department,’ not the agency, ‘to say what the law is,’” the exporter said.

And neither the Uruguay Rounds Act nor the Statement of Administrative Action actually say what Commerce claims they do, Kaptan argued. For example, it said, the Uruguay Rounds Act holds that “normally, the date of sale would be the date of contract, purchase order, order confirmation or invoice,” without stating a preference.

“If anything, the URAA holds the date of contract and invoice as equally probable,” it said.

Meanwhile, it said, the Statement of Administrative Action only holds that the date of sale is set at the “date when the material terms of sale are established.”

The U.S. also claimed in its response that Kaptan’s sales terms aren’t finalized in its contracts because parties can still change “the latest shipment date, size breakdown and, to a lesser extent, quantity” after signing. But this wasn’t true, the exporter argued; it said that Commerce erroneously looked to a prior review to determine otherwise even though Kaptan had since changed its policies.

The old policy was still in effect when Kaptan submitted its Section A questionnaire response, the exporter said. But its board of directors then amended its policies to forbid changes to material sales terms after the signing of a contract, and the department ignored that, Kaptan said. Instead, Commerce focused on the fact that Kaptan’s form language in its contracts hadn’t yet been updated to reflect the new rule, it said.

It argued there was no way for Kaptan and its customers to go uninformed about the rule, or to forget about it, because the board has to approve all of the company’s U.S. sales contracts.