United States Steel Corporation v. United States

Slip Op. 12 -
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - -x
UNITED STATES STEEL CORPORATION, 	:
Plaintiff, 	:
-and- 	:
NUCOR CORPORATION, 	:
Intervenor-Plaintiff, :
v. 	: 	Court No. 08-00216
THE UNITED STATES, 	:
Defendant, 	:
-and- 	:
ESSAR STEEL, LIMITED, 	:
Intervenor-Defendant. :
- - - - - - - - - - - - - - - - - - -x
Memorandum & Order
[Remand to International Trade Administration for
reconsideration of its results of initial remand.]
Decided: 	April 11, 2012
Skadden, 	Arps, 	Slate, 	Meagher 	& 	Flom 	LLP 	(Robert 	E.
Lighthizer, 	Jeffrey 	D. 	Gerrish, 	and 	Ellen 	J. 	Schneider) 	for 	the
plaintiff.
Wiley 	Rein 	LLP 	(Alan 	H. 	Price, 	Timothy 	C. 	Brightbill, 	and
Maureen E. Thorson) for the intervenor-plaintiff.
Tony 	West, 	Assistant 	Attorney 	General; 	Jeanne 	E. 	Davidson,
Director, 	Patricia 	M. 	McCarthy, 	Assistant 	Director, 	Commercial
Litigation 	Branch, 	Civil 	Division, 	U.S. 	Department 	of 	Justice
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(David D’Alessandris); and Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce (Thomas M. Beline), of
counsel, for the defendant.
Arent Fox LLP (Mark P. Lunn and Diana Dimitriuc Quaia) for the
intervenor-defendant.
AQUILINO, Senior Judge: 	This court’s slip opinion 11-66,
35 	CIT 	___ 	(2011), 	filed 	herein, 	familiarity 	with 	which 	is
presumed, 	granted 	plaintiff’s 	and 	intervenor-plaintiff’s 	motions
for 	judgment 	on 	the 	agency 	record 	compiled 	sub 	nom. 	Certain 	Hot-
Rolled 	Carbon 	Steel 	Flat 	Products 	From 	India: 	Notice 	of 	Final
Results 	of 	Antidumping 	Duty 	Administrative 	Review, 	73 	Fed.Reg.
31,961 	(Dep’t 	of 	Comm. 	June 	5, 	2008) 	(“Final 	Results”), 	to 	the
extent 	of 	remand 	to 	the 	International 	Trade 	Administration, 	U.S.
Department 	of 	Commerce 	(“ITA”) 	to 	clarify 	or 	reconsider 	its
analysis 	of 	the 	intervenor-defendant 	Essar 	Steel 	Limited’s
entitlement 	to 	duty-drawback 	adjustment 	within 	the 	meaning 	of 	19
U.S.C. §1677a(c)(1)(B).
In 	conformity 	therewith, 	the 	defendant 	has 	filed 	ITA’s
Final 	Results 	of 	Redetermination 	Pursuant 	to 	Court 	Remand, 	upon
which each of the parties to this case has now filed with the court
written 	comments. 	Indeed, 	those 	on 	behalf 	of 	the 	intervenor-
defendant 	have 	caused 	the 	defendant 	to 	concede 	a 	“ministerial
error” 	and 	therefore 	to 	itself 	request 	a 	“voluntary 	remand” 	to
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correct the matter. 	See Defendant’s Response to Comments Upon the
Remand 	Determination, 	pp. 	12-13. 	Each 	of 	the 	other 	parties 	also
seeks further reconsideration.
I
ITA 	did 	reconsider 	Essar’s 	duty-drawback 	claim 	by 	re-
opening the administrative record and obtaining from it redemption
applications lodged with the Government of India (“GOI”) related to
its 	particular 	advance 	licenses, 	a 	letter 	from 	the 	GOI 	releasing
Essar 	from 	its 	obligation 	to 	pay 	duties 	upon 	completion 	of 	the
required 	exports 	for 	each 	advance 	license, 	“including 	the
appropriate 	linkage 	between 	imports 	and 	exports[,]” 	bank
realization 	certificates 	confirming 	inward 	remittance 	of 	export
proceeds, 	and 	bills 	of 	lading 	confirming 	shipment 	to 	the 	United
States. 	See Remand Results, p. 4, referencing Essar’s August l7,
2011 	Response. 	To 	prove 	that 	duty-free 	import 	of 	raw 	materials
took 	place 	prior 	to 	exportation 	of 	its 	finished 	goods, 	Essar
“submitted 	each 	shipping 	bill 	that 	contains 	an 	endorsement 	that
specifies 	the 	advance 	license 	number 	and 	date.” 	Id. 	at 	4-5
(citation 	omitted). 	ITA 	then 	preliminarily 	determined 	Essar 	had
provided 	sufficient 	proof 	of 	complete 	removal 	of 	the 	contingent
liability for deferred import duties under the GOI advance license
program. 	See id., referencing Slip Op. 11-66, p. 12.
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At 	that 	point, 	the 	domestic-industry 	petitioners 	cum
plaintiffs 	United 	States 	Steel 	Corporation 	(“USSC”) 	and 	Nucor
Corporation 	requested 	that 	the 	agency 	deny 	Essar’s 	duty-drawback
claim 	with 	respect 	to 	one 	particular 	U.S. 	invoice, 	arguing 	the
company did not provide export documentation linking that invoice
to duty drawback under any of Essar’s advance licenses and that the
documentation 	it 	provided 	shows 	the 	particular 	claimed 	advance
license 	identifies 	other 	invoices 	in 	the 	database 	but 	fails 	to
indicate 	that 	sales 	pursuant 	to 	the 	one 	invoice 	were 	purportedly
made pursuant to that advance license. 	See id. at 5-6. 	ITA agreed
“nothing 	on 	the 	record 	links 	exports 	pursuant 	to 	that 	invoice 	to
any 	of 	Essar’s 	advance 	licenses” 	and 	thus 	disallowed 	the 	duty-
drawback claim on exports pursuant to that particular invoice, but
otherwise 	allowed 	the 	claim(s) 	as 	to 	the 	other 	documented 	export
invoices. 	See 	id. 	at 	6-7. 	See 	also 	Memorandum 	to 	File 	from 	V.
Cho, 	Case 	Analyst, 	“Remand 	of 	the 	2005-2006 	AD 	Admin. 	Rev. 	of
Certain 	Hot-Rolled 	Carbon 	Steel 	Flat 	Products 	from 	India:
Calculation Memorandum for Essar Steel Ltd.”, p. 4 (Oct. 3, 2011)
("CalcMemo") 	(Essar 	failed 	to 	"report 	the 	export 	documents 	that
link 	[a 	particular] 	invoice 	. 	. 	. 	to 	the 	duty 	drawback 	under 	its
advance license number"). 	Confidential Record Document (“ConfDoc”)
53. 	See Def’s Conf. Appx., Tab A.
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A
With 	respect 	to 	the 	single 	disallowed 	invoice, 	Essar
argues it satisfied its burdens of production and persuasion on its
claim for duty drawback. 	The evidence of record, however, does not
support 	it. 	Essar 	provided 	a 	copy 	of 	the 	invoice 	and 	a 	list 	of
invoices purportedly related to a particular advance license, but
the 	one 	in 	question 	is 	not 	among 	those 	listed 	for 	that 	advance
license. 	See 	Essar’s 	Aug. 	17, 	2011 	Supplemental 	Questionnaire
Response. 	See 	also 	Nucor 	Corp. 	Appx. 	to 	Nov. 	2, 	2011 	Comments,
Tab 7. 	Essar’s attempt to establish a connection, by providing a
list of exports and arguing that invoices are related to shipping
bills 	by 	quantity 	and 	shipping 	bill 	number, 	fails 	because 	the
invoice number is not actually listed on the bank certificates of
export and realization. 	Lacking from the record is a copy of the
relevant 	shipping 	bill, 	and 	therefore 	ITA 	found 	no 	demonstrable
connection between the invoice and the relevant advance license.
Substantial 	evidence 	on 	the 	record 	supports 	the 	Remand
Results 	as 	to 	the 	allowable 	extent 	of 	Essar’s 	eligible 	duty-
drawback claim, which must therefore be, and hereby are, sustained
in regard thereto.
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B
ITA having permitted Essar’s duty-drawback claim in part
and 	adjusted 	its 	export 	price 	(“EP”) 	as 	a 	result, 	USSC 	and 	Nucor
argue the agency should also have made a corresponding adjustment
by 	increasing 	Essar’s 	cost 	of 	production 	in 	accordance 	with 	the
change 	in 	ITA 	policy 	recently 	upheld 	in 	Saha 	Thai 	Steel 	Pipe
(Public) 	Co. 	v. 	United 	States, 	635 	F.3d 	1335, 	1341-44 	(Fed.Cir.
2011). 	The agency denied their “claim”, relying on Dorbest Ltd. v.
United States, 604 F.3d 1363 (Fed.Cir. 2010), reasoning the matter
should have been raised in the original proceeding and concluding
it was either waived or not administratively exhausted. 	See Remand
Results, 	p. 	8 	and 	604 	F.3d 	at 	1375 	(holding 	respondent 	failed 	to
exhaust administrative remedies when it did not challenge omission
from methodology in its administrative case brief, even though it
raised 	the 	issue 	in 	rebuttal 	brief 	and 	again 	during 	ministerial
comment period).
Relying on Qingdao Taifa Group Co. v. United States, 33
CIT ___, ___, 637 F.Supp.2d 1231, 1237 (2009), the plaintiffs deny
that 	exhaustion 	or 	waiver 	is 	applicable 	because 	the 	preliminary-
administrative-review 	determination 	denied 	Essar’s 	duty-drawback
claim, which meant ITA had to re-open the record on remand in search
of evidentiary support therefor, and that was the first instance the
matter of its calculation methodology became of moment.
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The 	defendant 	responds 	that 	(1) 	neither 	USSC 	nor 	Nucor
sought 	to 	amend 	its 	complaint 	to 	add 	a 	new 	count 	to 	address 	the
issue, (2) the change in administrative practice affirmed in Saha
Thai 	occurred 	after 	the 	completed 	Final 	Results, 	supra, 	(3) 	the
Supreme 	Court 	in 	Vermont 	Yankee 	Nuclear 	Power 	Corp. 	v. 	Natural
Resources 	Defense 	Council, 	Inc., 	435 	U.S. 	519 	(1978), 	“expressly
held 	that 	. 	. 	. 	consideration 	of 	extra-record 	developments 	would
lead 	to 	never-ending 	administrative 	proceedings 	and 	subsequent
[sic] judicial review” 1, and (4) the only exception to the “record
rule” 	is 	Home 	Prods. 	Int’l 	v. 	United 	States, 	633 	F.3d 	1369
(Fed.Cir. 2011), wherein a litigant presented “clear and convincing
evidence establishing a prima facie case of fraud.” 	Def’s Resp. to
Comments Upon the Remand Determ., pp. 8-9. 	Summarizing, it argues,
1 	Videlicet:
“Administrative 	consideration 	of 	evidence 	. 	. 	. 	always
creates a gap between when the time the record is closed
and the time the administrative decision is promulgated
[and, we might add, the time the decision is judicially
reviewed]. 	If 	upon 	the 	coming 	down 	of 	the 	order
litigants 	might 	demand 	rehearings 	as 	a 	matter 	of 	law
because some new circumstance has arisen, some new trend
has 	been 	observed, 	or 	some 	new 	fact 	discovered, 	there
would 	be 	little 	hope 	that 	the 	administrative 	process
could ever be consummated in an order that would not be
subject to reopening.”
435 U.S. at 554–55, quoting ICC v. Jersey City, 322 U.S. 503, 514
(1944).
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[i]n 	point 	of 	fact, 	nothing 	changed 	from 	the 	final
results 	published 	in 	June 	2008 	to 	Commerce’s 	remand
redetermination 	released 	October 	2011 	with 	respect 	to
Essar’s duty drawback adjustment. 	Commerce continued to
grant 	Essar 	its 	duty 	drawback 	offset. 	The 	claim 	that
Essar’s cost of manufacturing should have been adjusted
should 	have 	been 	raised 	when 	US 	Steel 	and 	Nucor
challenged Commerce’s Final Results in 2008. 	At no point
did US Steel or Nucor amend their complaint to add a new
count. 	They do not attempt to do so now. 	Accordingly,
this 	issue 	was 	settled 	with 	the 	final 	results 	and
later-in-time 	case 	law 	does 	not 	resuscitate 	waived
arguments. 	Doing 	so 	here 	would 	run 	contrary 	to 	the
Supreme 	Court’s 	holding 	in 	Vermont 	Yankee. 	. 	. 	.
Commerce 	properly 	limited 	its 	decision 	in 	the 	remand
redetermination to the specific factual issue remanded by
the Court.
Id. at 10.
To 	the 	extent 	it 	is 	arguing 	ITA’s 	hands 	were 	tied 	by 	a
“record rule” vis-à-vis application of its new policy to a matter
remanded for reconsideration, the argument misstates the law. See
e.g., Tung Mung Dev. Co. v. United States, 354 F.3d 1371, 1378-79
(Fed.Cir. 	2004) 	(any 	errors 	in 	remand 	orders 	do 	not 	survive 	ITA
decisions to adopt a new policy; the Supreme Court “has repeatedly
emphasized[] 	the 	Chevron 	doctrine 	contemplates 	that 	agencies 	can
and will abandon existing policies and substitute new approaches”
as 	necessary, 	and 	including 	on 	remand); 	SKF 	USA 	Inc. 	v. 	United
States, 	254 	F.3d 	1022, 	1030 	(Fed.Cir. 	2001) 	(“an 	agency 	must 	be
allowed 	to 	assess 	‘the 	wisdom 	of 	its 	policy 	on 	a 	continuing
basis’”, quoting Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 864 (1984)).
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The Remand Results correctly note the specific question
on 	remand 	was 	“whether 	record 	evidence 	proves 	Essar’s 	contingent
liability 	for 	deferred 	import 	duties 	under 	the 	duty 	drawback
program 	has 	been 	removed 	or 	permanently 	excused”. 	But 	this
court’s 	order 	did 	not 	state 	“without 	considering 	any 	calculation
changes 	should 	[ITA] 	continue 	to 	grant 	the 	duty 	drawback
adjustment.” 	See Remand Results, p. 8, referencing Slip Op. 11-66,
p. 9. 	And, in point of fact, something has changed. 	Whereas ITA’s
original 	duty-drawback 	determination 	rested 	upon 	an 	insufficient
premise, it now rests on firmer footing. 	Even though the result is
the 	same, 	the 	remand 	determination 	replaced 	the 	original
determination 	as 	a 	matter 	of 	law. 	See, 	e.g., 	Decca 	Hospitality
Furnishings, 	LLC 	v. 	United 	States, 	30 	CIT 	357, 	363 	and 	427
F.Supp.2d 1249, 1255, n. 11 (2006).
The defendant claims the plaintiffs “had the opportunity
to raise their arguments in their case briefs in the administrative
review”, but the matter was not a problem of exhaustion or waiver:
informing ITA that it must apply its newly-announced practice (of
adding 	exempted 	duties 	to 	the 	respondent's 	costs 	of 	production
and/or constructed value when ITA adjusts EP to account for those
exemptions) was not the plaintiff-petitioners’ burden.
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It 	is 	axiomatic 	that 	agencies 	must 	follow 	their 	own
announced 	or 	established 	practices, 	or 	else 	provide 	justifiable
reasoning for deviation therefrom. 	E.g., SKF USA, Inc. v. United
States, 	537 	F.3d 	1373 	(Fed.Cir. 	2008); 	Allegheny 	Ludlum 	Corp. 	v.
United States, 346 F.3d 1368 (Fed.Cir. 2003). 	ITA applied the new
practice 	on 	numerous 	occasions 	by 	the 	time 	this 	matter 	was
remanded 2, and, as noted, the practice was recently upheld by the
Court of Appeals for the Federal Circuit in Saha Thai, supra, 635
F.3d 	at 	1341-44, 	of 	which 	the 	agency 	is 	presumed 	to 	have 	had
notice. 	This 	being 	the 	case, 	the 	burden 	on 	remand 	was 	on 	ITA 	to
abide its new practice or explain deviation therefrom.
2 	See 	the 	Issues 	and 	Decision 	Memoranda 	accompanying 	Ball
Bearings and Parts Thereof from France, Germany, and Italy, 76 Fed.
Reg. 	52,937 	(Aug. 	24, 	2011) 	(final 	results 	of 	antidumping
administrative 	and 	changed-circumstances 	reviews) 	at 	cmt. 	8;
Polyethylene Retail Carrier Bags from Thailand, 76 Fed.Reg. 12,700
(March 8, 2011) (final results of antidumping-duty administrative
review) 	at 	cmt. 	5; 	Circular 	Welded 	Carbon 	Steel 	Pipes 	and 	Tubes
from Thailand, 75 Fed.Reg. 64,696 (Oct. 20, 2010) (final results of
antidumping-duty administrative review) at cmt. 2; Certain Welded
Carbon Steel Pipe and Tube from Turkey, 75 Fed.Reg. 64,250. 	(Oct.
19, 2010) (final results of antidumping-duty administrative review)
at cmt. 3; Certain Steel Concrete Reinforcing Bars from Turkey, 74
Fed.Reg. 	45,611 	(Sept. 	3, 	2009) 	(final 	results 	and 	final 	partial
rescission of antidumping-duty administrative review) at cmts. 1 &
2; and Circular Welded Carbon Steel Pipes and Tubes from Thailand,
73 Fed.Reg. 61,019 (Oct. 15, 2008) (final results of antidumping-
duty administrative review) at cmt. 5.
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The agency is not to be faulted, of course, for following
a 	strict 	construction 	of 	the 	terms 	of 	the 	remand 	order, 	but 	its
applied duty-drawback methodology in the context of Essar’s claim
cannot 	be 	sustained 	on 	the 	record 	of 	the 	Remand 	Results 	at 	this
point. 	They 	therefore 	must 	be, 	and 	hereby 	are, 	remanded 	for
application 	of 	the 	new 	policy 	or 	reasonable 	explanation 	of
inapplicability.
C
Essar’s 	claim 	for 	duty 	drawback 	having 	been 	allowed 	in
part, 	it 	and 	ITA 	additionally 	agree 	the 	Remand 	Results 	should 	be
remanded again to allow correction of a certain ministerial error
in 	computer 	programming 	(that 	inadvertently 	resulted 	in 	setting
“DTYDRAWU” to zero for all sales, not just for the one invoice in
question). 	The 	Remand 	Results 	are 	therefore 	hereby 	further
remanded for correction thereof.
II
The remaining comments concern ITA’s determination of the
“date of sale” for Essar’s EP sales. 	The statute does not specify
the manner in which it shall determine such a date. 	The Statement
of 	Administrative 	Action 	approved 	by 	Congress 	as 	part 	of 	the
Uruguay Round Agreements Act explains that it is the “date when the
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material 	terms 	of 	sale 	are 	established”, 	i.e., 	price, 	quantity,
delivery terms, payment terms, and tolerances. 	See Uruguay Round
Agreements Act, Statement of Administrative Action, H.R. Doc. No.
103-316, p. 810. 	Normally, ITA presumes the date of invoice as the
EP 	sale 	date, 	but 	the 	presumption 	is 	rebuttable 	if 	and 	when 	the
agency is “satisfied that a different date better reflects the date
on which the exporter or producer establishes the material terms of
sale.” 3 	See 	also 	Antidumping 	Duties; 	Countervailing 	Duties, 	62
Fed.Reg. 27,296, 27,349 (Dep’t of Comm. 	May 19, 1997) (“If [ITA]
is presented with satisfactory evidence that the material terms of
sale 	are 	finally 	established 	on 	a 	date 	other 	than 	the 	date 	of
invoice, [it] will use that alternative date as the date of sale”).
Any inquiry is intended to be flexible. 	See, e.g., Allied Tube and
Conduit 	Corp. 	v. 	United 	States, 	24 	CIT 	1357, 	1370, 	127 	F.Supp.2d
207, 	219 	(2000) 	(Congress 	“has 	expressed 	its 	intent 	that, 	for
antidumping 	purposes, 	the 	date 	of 	sale 	be 	flexible 	so 	as 	to
3 	19 C.F.R. §351.401(i) provides as follows:
. 	. 	. 	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 	[]he 	. 	. 	. 	is
satisfied that a different date better reflects the date
on 	which 	the 	exporter 	or 	producer 	establishes 	the
material terms of sale.
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accurately reflect the true date on which the material elements of
sale were established”); Sahaviriya Steel Indus. Pub. Co. v. United
States, 	34 	CIT 	___, 	___, 	714 	F.Supp.2d 	1263, 	1280 	(2010)
(“Flexibility 	is 	the 	cornerstone 	of 	Commerce’s 	date 	of 	sale
analysis”).
Essar argues the Remand Results incorrectly use invoice
date as its EP sale date. 	It contends the correct date is the date
of 	the 	letter 	of 	credit, 	as 	determined 	in 	the 	Final 	Results,
wherein ITA reasoned,
for Essar's EP sales, the material terms of sale are set
at the time of the sales contract, but are occasionally
changed when the letter of credit is issued. 	Because the
letter of credit is issued after the sales contract, any
changes 	to 	the 	letter 	of 	credit 	would 	also 	signal 	a
departure from the sales contract. [ 	] Petitioners point
to 	instances 	where 	material 	terms 	changed 	after 	the
letter 	of 	credit 	was 	issued. 	In 	these 	instances, 	the
original 	letter 	of 	credit 	was 	amended 	and 	we 	used 	the
amended letter of credit. Thus, for the instant review,
the 	letter 	of 	credit 	is 	a 	better 	test 	than 	the 	sales
contract for when the terms of sale are set. Moreover, in
all circumstances, the invoice is issued after the letter
of 	credit, 	or 	in 	some 	instances 	the 	amended 	letter 	of
credit, when the merchandise is shipped and the essential
terms are never changed between the letter of credit, or
the amended letter of credit, and the invoice.
Issues and Decision Memorandum accompanying Final Results, 73 Fed.
Reg. 31,961, cmt. 21 (footnote omitted), PDoc 180.
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Court No. 08-00216 	Page 14
In the Remand Results, page 9, ITA changed its position
and 	determined 	“the 	material 	terms 	of 	sale 	were 	not 	fixed 	on 	the
letter of credit date or amended letter of credit date.” 	Because
of multiple instances of price and quantity being invoiced beyond
the tolerances in the sales contracts, the agency determined there
was 	no 	“meeting 	of 	the 	minds” 	as 	of 	the 	letter-of-credit 	date 	or
amended letter-of-credit date and concluded (essentially) Essar had
not overcome the presumption in favor of using the date of invoice
as the EP sales date. 	See Remand Results, pp. 9-10.
Essar 	does 	not 	challenge 	ITA’s 	discretion 	as 	to 	the
appropriate date of sale or the regulatory presumption in favor of
invoice 	date, 	but, 	of 	course, 	it 	is 	the 	respondent’s 	burden 	to
present 	sufficient 	evidence 	to 	establish 	that 	the 	material 	terms
are 	set 	at 	a 	different 	time 	if 	it 	wishes 	to 	overcome 	that
presumption. 	See, 	e.g., 	Sahaviriya 	Steel, 	34 	CIT 	at 	___, 	714
F.Supp.2d 	at 	1279; 	Nakornthai 	Strip 	Mill 	Public 	Co. 	v. 	United
States, 	33 	CIT 	___, 	___, 	614 	F.Supp.2d 	1323, 	1334 	(2009)
(“Nakornthai 	III”). 	Essar’s 	attempt 	involves 	pointing 	to 	the
unchanged 	evidentiary 	record 	between 	the 	Final 	Results 	and 	the
Remand Results and arguing only one invoice had an overall quantity
change 	of 	more 	than 	the 	tolerance 	of 	the 	letter 	of 	credit. 	It
contends 	that 	the 	decisions 	ITA 	relied 	upon 	for 	support,
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Court No. 08-00216 	Page 15
Nakornthai III and Nucor Corp. v. United States, 33 CIT ___, ___,
612 	F.Supp.2d 	1264, 	1271 	(2009), 	involved 	only 	limited 	changes
between 	invoice 	and 	letter-of-credit 	issuance 	and 	that 	these
decisions 	actually 	support 	its 	position 	because 	its 	record 	of
changes 	consists 	of 	only 	“two 	items 	out 	of 	approximately 	280”,
which 	Essar 	contends 	does 	not 	amount 	to 	substantial 	evidence 	but
proof 	of 	the 	correctness 	of 	ITA’s 	original 	position 	in 	the 	Final
Results. 	See generally Def-Int. Essar Steel Ltd’s Comments . . .
Pursuant to Court Remand, pp. 4-10.
The 	“two 	items” 	were 	apparently 	of 	greater 	impact 	than
Essar represents. 	ITA addressed the reliance on Nakornthai III and
Nucor by explaining that “the material term of sale changed on one
contract” in each of those matters, whereas “Essar’s material terms
of 	sale 	changed 	on 	many 	transactions 	[by] 	contrast”. 	Remand
Results, 	p. 	11, 	referencing 	Nakornthai 	III, 	33 	CIT 	at 	___, 	614
F.Supp.2d at 1326 (“one U.S. sale of hot-rolled steel pursuant to
a 	contract” 	that 	was 	changed), 	and 	Nucor, 	33 	CIT 	at 	___, 	612
F.Supp.2d 	at 	1301 	(“a 	price 	change 	as 	to 	one 	of 	ICDAS’ 	U.S.
contracts”).
The 	standard 	is 	whether 	ITA’s 	selection 	of 	the
presumptive 	date 	of 	sale 	is 	unsupported 	by 	substantial 	evidence.
See 	19 	U.S.C. 	§1516a(b)(1)(B)(i); 	Allied 	Tube, 	supra, 	24 	CIT 	at
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1373, 127 F.Supp.2d at 220-21. 	Applying it herein, the court finds
adequate 	support 	for 	the 	agency’s 	decision, 	given 	the 	detailed
changes in material terms of sale between the letters of credit and
the 	related 	invoices. 	See 	Remand 	Results, 	pp. 	9-10 	(“Essar’s
material 	terms 	of 	sale 	were 	altered 	outside 	of 	the 	built-in
tolerances in the sales contracts and those changes occurred up to
the 	invoices 	in 	Essar’s 	submitted 	sales 	documentation”); 	Def’s
Conf. 	Appx., 	Tab 	A 	(CalcMemo), 	Tab 	B 	(Essar’s 	Aug. 	16, 	2007
Questionnaire 	Response, 	ConfDoc 	33); 	Nucor’s 	Conf. 	Appx., 	Tab 	7
(copies 	of 	Essar’s 	letters 	of 	credit 	and 	invoices). 	Hence, 	the
Remand Results can be, and they hereby are, sustained as to ITA’s
selection of the date of intervenor-defendant Essar’s EP sales.
III
The 	defendant 	may 	have 	until 	May 	25, 	2012 	to 	amend 	and
correct 	the 	Remand 	Results 	in 	accordance 	with 	the 	foregoing 	and
report the results thereof to the parties and the court.
So ordered.
Decided: 	New York, New York
April 11, 2012
/s/ Thomas J. Aquilino, Jr.
Senior Judge
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