Nakornthai Strip Mill Public Co. v. United States

Slip Op. 08-128

UNITED STATES COURT OF INTERNATIONAL TRADE

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NAKORNTHAI STRIP MILL PUBLIC :

COMPANY LIMITED, :

:

Plaintiff, :

: Before: Pogue, Judge

v. : Court No. 07-00180

:

UNITED STATES, :

:

Defendant, :

:

UNITED STATES STEEL :

CORPORATION, :

:

Defendant- :

Intervenor. :

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OPINION

[Commerce’s determination sustained in part and remanded in part.]

Dated: November 24, 2008

Hughes, Hubbard & Reed LLP (Kenneth J. Pierce, Robert L.

LaFrankie, Victor S. Mroczka) for the Plaintiff.

Gregory G. Katsas, Acting Assistant Attorney General; Jeanne

E. Davidson, Director, Patricia M. McCarthy, Assistant Director,

Commercial Litigation Branch, Civil Division, U.S. Department of

Justice (Jane C. Dempsey); Matthew D. Walden, Attorney, Of Counsel,

Office of the Chief Counsel for Import Administration, U.S.

Department of Commerce, for the United States Department of

Commerce.

Skadden, Arps, Slate, Meagher & Flom LLP (Robert E.

Lighthizer, John J. Mangan, Jeffrey Gerrish, Luke A. Meisner) for

the Defendant-Intervenor.

Pogue, Judge: This is the court’s second opinion in this

matter reviewing whether Commerce’s selection of the invoice date

as the date of sale, for purposes of calculating an antidumping

Court No. 07-00180 Page 2

duty, was supported by the administrative record. Following the

court’s previous decision, Nakornthai Strip Mill Pub. Co. v. United

States, 32 CIT ___, 558 F. Supp. 2d 1319 (2008) (hereinafter “the

court’s May 28 opinion”), the Department of Commerce (“Commerce”)

reconsidered, on remand, its original determination, but again

chose to use the date of invoice rather than the date of contract

as the date of sale. Final Results of Redetermination Pursuant to

Remand, Nakornthai Strip Mill Pub. Co., A-549-817, ADR

11/1/2004—10/31/2005 (July 28, 2008) (“Remand Results”). Plaintiff

Nakornthai Strip Mill Public Company Limited (“Nakornthai”)1 now

challenges Commerce’s Remand Results, presenting the court with

three grounds upon which it again seeks remand of the case.

After thorough review, the court finds that Commerce has once

again failed to make a reasoned finding with respect to

Nakornthai’s specific evidence, and must therefore again remand

this case.

Background

Nakornthai filed the instant action to challenge Commerce’s

final results of administrative review of the antidumping order on

Nakornthai’s imports. Certain Hot-Rolled Carbon Steel Flat Products

from Thailand, 72 Fed. Reg. 27,802 (Dep’t Commerce May 17, 2007)

(final results and partial rescission of antidumping duty

1

Nakornthai is now known as G J Steel Public Co. Ltd.,

however, for consistency, this opinion will continue to refer to

the company under its former name.

Court No. 07-00180 Page 3

administrative review). As the review record revealed, the

original contract between Nakornthai and its wholesaler specified,

among other things, both an overall quantity tolerance and an

individual, per item, tolerance level. Nakornthai, 558 F. Supp. 2d

at 1322. A subsequent amendment removed the line-item tolerance

level from the contract, leading Commerce to conclude that this

change demonstrated that the contract’s material terms were not

settled until the invoice date. Id. at 1328.2 Nakornthai, however,

presented evidence that the contract amendment affected less than

0.1% of the total quantity of goods sold and shipped under the

contract, although the quantity shipped of the single, changed

line-item was 14.5% more than the upper end of the original

tolerance level and more than 25% above the specific line-item

quantity for that product. Id.

In its May 28 opinion,3 the court affirmed Commerce’s legal

conclusion, holding that Commerce’s identification of potentially

“material terms of sale” of Nakornthai’s contract was based on the

agency’s reasonable interpretation of its own regulation. Id. at

2

Commerce’s determination was based on its applicable

regulation, 19 C.F.R. § 351.401(i)(2007) (“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 the Secretary is satisfied that a different

date better reflects the date on which the exporter or producer

establishes the material terms of sale.”)

3

Familiarity with the court’s May 28 opinion is presumed.

Court No. 07-00180 Page 4

1327. However, the court held that Commerce’s factual findings on

the finality of the terms of sale were incomplete, and remanded the

issue back to the agency for reconsideration. Id. at 1328-29. The

court stated that “Commerce did not discuss or make a finding with

regard to this [i.e., Nakornthai’s] evidence, either on its own or

when considered in light of the elimination of the tolerance levels

in the contract.” Id. at 1328. Therefore, the court could not

determine whether the variation in quantities for one line-item was

sufficient either to affect product mix in a significant way or to

alter the dumping margin. Id. As such, the court remanded the case

back to Commerce to make a factual finding “with regard to the

significance of Nakornthai’s evidence” and whether “the date the

terms of the contract were essentially ‘established’ [at the date

of contract] in light of the evidence submitted.” Id. at 1328-29.

Standard of Review

The court reviews remand determinations for compliance with

the court’s remand order. See NMB Sing. Ltd. v. United States, 28

CIT 1252, 1259-60, 341 F. Supp. 2d 1327, 1333-34 (2004) (affirming

International Trade Commission’s determinations on remand where the

determinations were in accordance with law, supported by

substantial evidence, and otherwise satisfied the remand order);

see also Olympia Indus., Inc. v. United States, 23 CIT 80, 82, 36

F. Supp. 2d 414, 416 (1999) (affirming after “review[ing]

Commerce’s compliance with these instructions in its Remand

Court No. 07-00180 Page 5

Results” and finding the determination to be supported by

substantial evidence and in accordance with law). In addition, any

factual findings on remand must be supported by substantial

evidence and the agency’s legal determinations must be in

accordance with law. 19 U.S.C. § 1516a(b)(1)(B); see, e.g.,Huaiyin

Foreign Trade Corp. v. United States, 322 F.3d 1369, 1374 (Fed.

Cir. 2003); AG der Dillinger Hüttenwerke v. United States, 28 CIT

94, 95, 310 F. Supp. 2d 1347, 1349 (2004) (holding remand

determination to legal and factual standards set out in 19 U.S.C.

§ 1516a(b)(1)(B)). “Substantial evidence is ‘such relevant evidence

as a reasonable mind might accept as adequate to support a

conclusion.’” Huaiyin Foreign Trade Corp., 322 F.3d at 1374

(internal citations omitted).

Discussion

Nakornthai’s Comments state its specific objections to

Commerce’s Remand Results. First, Nakornthai argues that Commerce

did not adequately distinguish its Romanian Plate decision where

similar facts lead to opposite results. Second, Nakornthai

maintains that Commerce failed to make the evidentiary findings

required by the court’s May 28 opinion. Finally, Nakornthai

contends that Commerce was required to consider its alternative

date-of-sale arguments regarding the use of amended contract date

and shipment date, as the court remand had replaced Nakornthai’s

prior failure to exhaust administrative remedies on this issue.

Court No. 07-00180 Page 6

The court agrees that Commerce has again failed to make

sufficient factual findings as required by the court’s May 28

opinion, and thus must remand on this ground. However, the court

rejects Nakornthai’s other arguments. The court will discuss each

issue in turn.

I. Commerce Adequately Distinguished Romanian Plate

In its Remand Results, Commerce reasonably distinguished the

facts of this case from the facts in Certain Cut-to-Length Carbon

Steel Plate from Romania, 72 Fed. Reg. 6,522 (Dep’t Commerce Feb.

12 2007) (final admin. review). See Issues and Decision Memorandum

for the Administrative Review of Certain Cut-to-Length Carbon Steel

Plate from Romania: Final Results of Antidumping Duty

Administrative Review and Final Partial Rescission, A-485-803, ADR

08/01/2004–07/31/2005 (Feb. 2, 2007), available at

http://ia.ita.doc.gov/frn/ summary/ROMANIA/E7-2216-1.pdf (“Romanian

Plate”). Romanian Plate, although containing facts similar to this

case and also applying 19 C.F.R. § 351.401(i)(2007), determined

that a date earlier than that of the invoice was the proper “date

of sale,” where “one sale of a small quantity outside the specified

quantity tolerance level” did not constitute a “material” change to

the contract. Nakornthai, 558 F. Supp. 2d at 1327-28 (citing

Romanian Plate at 9). Despite that change, Commerce concluded that

the Romanian Plate parties agreed to their contract’s material

terms at the time of order acknowledgment, a date prior to the

Court No. 07-00180 Page 7

invoice date, in part, because the parties intended to finalize the

material terms of sale at the earlier time. Romanian Plate at 7, 9.

As evidence, Commerce cited the specific language of the order

acknowledgment -- language that Commerce deemed to definitively

state “that there can thereafter be no changes in the terms of

sale” -- as well as affidavits from U.S. customers “declaring that

the order acknowledgments are understood as the parties’ final

agreement on quantities and prices ordered.” Id. at 7. Commerce

also highlighted evidence that the parties “decided to fix the U.S.

sales terms with the order acknowledgment to guarantee price

stability,” given that there are often long lag times “between

order acknowledgment and invoice date.” Id. at 8. Furthermore,

Commerce emphasized that the contract “did not undergo any

meaningful changes”; the record contained “no evidence of price

changes between the order acknowledgments and their respective

invoices” and, with the exception of “one sale of a small

quantity,” the invoiced quantities were all within the order

acknowledgment’s tolerance levels. Id. at 7. Hence, other than a

“small” quantity change in one sale, the contracts terms remained

the same. Id.

Nakornthai argues that “Commerce’s attempt to distinguish

Romania[n] Plate . . . elevates form over substance” because,

although Romanian Plate involved no formal contract amendment,

“there were still changes to the contract” analogous to those in

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the case at bar. Pl.’s Comments at 6, 7. Nakornthai points out

that its contract also involved long lag times between the order

acknowledgment and invoice date, and that one of the sales in that

case also involved a small change in quantity outside the specified

tolerance level. Id. at 7. Because of the similarities to the

evidence presented in its case, Nakornthai asserts, Commerce must

find that the small change in quantity was “not significant” just

as the agency concluded in Romanian Plate. Id. at 6.

Nakornthai is, in part, correct. “Agencies have a

responsibility to administer their statutorily accorded powers

fairly and rationally, which includes not ‘treat[ing] similar

situations in dissimilar ways.’” Anderson v. U.S. Sec'y of Agric.,

__ CIT __, 462 F. Supp. 2d 1333, 1339 (2006) (quoting Burinskas v.

NLRB, 357 F.2d 822, 827 (D.C. Cir. 1966)). “Indeed, a principal

justification for the administrative state is that in ‘area[s] of

limitless factual variations, like cases will be treated alike.’”

Id. (quoting Nat’l Muffler Dealers Ass’n v. United States, 440 U.S.

472, 477 (1979) (internal citations omitted)). “Courts will

therefore not defer to an agency regulation or adjudicative

decision when they produce results which are arbitrary, capricious,

or manifestly contrary to the statutory scheme.” Id.

Nevertheless, just because the evidence in a case could

support two inconsistent conclusions, does not mean that the

agency’s findings are unsupported. Consolo v. Fed. Maritime Comm’n,

Court No. 07-00180 Page 9

383 U.S. 607, 620 (1966). In addition, Commerce has “discretion to

change its policies and practices as long as they are reasonable

and consistent with their statutory mandate [and] may adapt its

views and practices to the particular circumstances of the case at

hand, so long as the agency’s decisions are explained and supported

by substantial evidence on the record.” Trs. in Bankruptcy of N.

Am. Rubber Thread Co. v. United States, __ CIT __, 533 F. Supp. 2d

1290, 1297 (2007). Accordingly, when departing from its own

precedent, Commerce must explain its departure. See id. (“Commerce

[must] attempt to distinguish the reasoning set forth in [prior

cases] from the present case”); Trs. in Bankruptcy of N. Am. Rubber

Thread Co. v. United States, __ CIT __, 558 F. Supp. 2d 1367, 1370

(2008) (“Generally,‘an agency action is arbitrary when the agency

offer[s] insufficient reasons for treating similar situations

differently.’”); Consol. Bearings Co. v. United States, 348 F.3d

997, 1007 (Fed. Cir. 2003) (Commerce acts arbitrarily and

capriciously when it “consistently follow[s] a contrary practice in

similar circumstances and provide[s] no reasonable explanation for

the change in practice.”); British Steel PLC v. United States, 127

F.3d 1471, 1475 (Fed. Cir. 1997) (“An agency is obligated to follow

precedent, and if it chooses to change, it must explain why.”).

Commerce, in this case, has adequately distinguished and

reasonably explained its departure from Romanian Plate. While

there are similarities between this case and Romanian Plate,

Court No. 07-00180 Page 10

Commerce’s Remand Results demonstrated several key distinguishing

facts between the two cases. Whereas in Romanian Plate “there were

no amendments at all to the order acknowledgment,” Commerce found

that Nakornthai’s original contract was subject to several

amendments4 after the date of sale. Remand Results at 4. These

amendments “reflect[] potential broad-sweeping changes to the terms

of the contract, and provide[] limited certainty of the products to

be shipped other than the aggregate of the total order.” Id. at 9.

In addition, Commerce noted that Nakornthai “has not provided any

evidence to indicate that [Nakornthai] and its buyer understood

that the contract or amended contracts represented the final

agreement on quantities, prices, or delivery and payment terms.”

Id. at 4. In contrast, the Romanian Plate contract specifically

provided, and parol evidence demonstrated, that the parties

intended that there would be no later changes in terms after the

acknowledgment.

Nakornthai insists that its transactions suffer the same lag

time highlighted in Romanian Plate. But Commerce found the lag

time persuasive in Romanian Plate, not because of its mere

existence, but because the evidence demonstrated that the lag times

caused one of the parties to explicitly fix the terms of the

4

In its May 28 opinion, the court found Commerce reasonably

interpreted its own regulations when it concluded that at least

one of these amendments, eliminating the quantity per item

tolerance level, was a potentially material change. Nakornthai,

558 F. Supp. 2d at 1327.

Court No. 07-00180 Page 11

contract in the acknowledgment. Nakornthai has provided no

evidence that such a lag time caused it in particular to take

similar measures. Moreover, Commerce decisions dictate that “a

long lag time is not the only determining factor for date-of-sale

purposes.” Id. at 9; Certain Steel Concrete Reinforcing Bars from

Turkey, 72 Fed. Reg. 62,630 (Dep’t Commerce Nov. 6, 2007) (final

admin. review and new shipper review and determination to revoke in

part).

As Commerce has adequately explained its reasons for

distinguishing Romanian Plate, the court rejects Nakornthai’s first

proffered ground for remand. The court pauses to note, however,

that just because Commerce’s decision in Romanian Plate is

distinguishable on the facts from Nakornthai’s case, and therefore

the same result is not required here, it does not follow that

Romanian Plate has no effect. In its May 28 opinion, the court

cited Romanian Plate for the more limited proposition that “[i]n

choosing a date of sale, Commerce weighs the evidence presented and

regularly determines the significance of any changes to the terms

of sales involved.” Nakornthai Strip Mill Pub. Co. v. United

States, 32 CIT ___, 558 F. Supp. 2d 1319, 1327 (2008). This

standard practice is also demonstrated in Commerce’s Certain Large

Diameter Carbon and Alloy Seamless Standard, Line and Pressure Pipe

From Mexico, 65 Fed. Reg. 39358 (Dep’t Commerce June 26, 2000)

(final determination), and accompanying Issues and Decision

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Memorandum, A-201-827, LFV 04/01/1998–03/31/1999 cmt. 2 (June 26,

2000), available at http://ia.ita.doc.gov/frn/summary/mexico/00-

16102-1.txt (“During verification of TAMSA's sales response, the

Department reviewed sales-related documentation ... indicating that

there was a slight change in the quantity shipped between the sales

acknowledgment date and the invoice date.”). While the same result

is not required here by either decision, the same process of

evaluation, as the court shall now discuss, is so required.

II. Commerce Failed to Make a Finding of Significance with

Regard to Nakornthai's Proffered Evidence

The court, in its May 28 opinion, determined that Commerce’s

disposition of the case was “incomplete and must be remanded,” as

Commerce failed to make “a factual finding with regard to the

significance of Nakornthai’s evidence or the date the terms of the

contract were essentially ‘established’ in light of the evidence

submitted,” as required by Commerce’s regulation. Nakornthai, 558

F. Supp. 2d at 1328-29. Because Commerce again has failed to make

such a finding, this court again must remand this case.

The court’s May 28 opinion made clear that substantial

evidence requires more than the mere assertion that the tolerance

levels were changed:

Commerce argues that the fact that the quantity tolerance

level was changed, in whatever amount, demonstrates that

the contract's material terms were subject to change and

therefore not finally settled until the invoice date.

The problem with this argument is that it begs the

Court No. 07-00180 Page 13

question of whether any such changes were insignificant.

Nakornthai, 558 F. Supp. 2d at 1328. Thus, Commerce was directed

to look at the specific evidence presented by Nakornthai to make a

factual finding, in context, as to whether the change in the

quantity actually shipped was significant, meaningful, or

substantial. This is the process of evaluation required by

Commerce’s own regulation, as well as the court’s remand order.

Instead of heeding the court’s instructions, Commerce’s Remand

Results declared that the change to the specific quantity shipped

“is not [] relevant,” and concluded that the “relevant change” was

the elimination of the tolerance levels from the original contract.

Remand Results at 5. Commerce determined that the mere removal of

the line-item quantity tolerance from the contract was significant

because it “provided [Nakornthai] with the flexibility to affect

the product mix and, in turn, the overall dumping margin,” id.,

because “the product mix . . . is used for matching purposes and

the overall margin calculation.” Id. at 8. Commerce then set forth

a hypothetical example demonstrating how the tolerance removal

“could conceivably” permit Nakornthai to alter product combinations

in an effort to impact the overall dumping margin. Id. at 5.5

While Commerce did state that “it is reasonable to characterize the

5

Commerce did not consider the significance of the other

two amendments to Nakornthai’s contract, as Commerce “continue[s]

to find that the change in line item tolerance was significant,

per the Court’s instructions.” Id. at 4 n.1.

Court No. 07-00180 Page 14

quantity change as significant,” the agency did not provide a

reasoned explanation on this issue, and immediately reiterated that

this analysis “[was] not the basis” for its determination. Id. at

6.

It follows that Commerce’s position simply restates its

hypothetical contention, already rejected by the court, that “the

relevant change was the elimination of the line item quantity

tolerance level from the original contract, which can affect the

product mix and dumping margin.” Id. at 7. Commerce again makes no

factual finding as to whether the less than 0.1% difference in the

total quantity shipped, that was 14.5% higher than the upper end of

the original tolerance level for one item and more than 25% above

the specific line-item quantity for that product, was of any

significance in actual, not hypothetical, terms. “Commerce’s use

of hypotheticals, generalizations . . . and conditional language

suggesting possible distortions in antidumping calculations offer

conjecture rather than a reasoned explanation founded on

substantial evidence.” Hynix Semiconductor, Inc. v. United States,

27 CIT 1719, 1722, 295 F. Supp. 2d 1365, 1369 (2003), rev’d in

part, 424 F.3d 1363, 1370 (Fed. Cir. 2005).6 While Commerce may

6

Although the Federal Circuit reversed the U.S. Court of

International Trade on the issue of whether Commerce presented

substantial evidence for the agency’s determination as to whether

Hynix's change in accounting practices was distortive to the

dumping margin, it was not because the Federal Circuit held that

Commerce could exchange hypotheticals for a reasoned analysis of

the evidence. The reversal was based on the Federal Circuit’s

Court No. 07-00180 Page 15

not find this line of inquiry relevant, the court does, and when an

agency does not comply with the court’s remand instructions, its

remand results will not be sustained. See Fuyao Glass Indus. Group

Co. v. United States, Slip. Op. 06-21, 2006 Ct. Intl. Trade LEXIS

21, at *19 (CIT Feb. 15, 2006) (remanding a case back to Commerce

for a third time because Commerce, among other things, failed to

comply with the court’s remand instructions).

In considering Nakornthai’s arguments and evidence, Commerce

“must explain its rationale . . . such that a court may follow and

review its line of analysis, its reasonable assumptions, and other

relevant considerations. Explanation is necessary . . . for this

court to perform its statutory review function.” Int’l Imaging

Materials, Inc. v. United States ITC, 29 CIT __, Slip. Op. 06-11 at

13 (Jan. 23, 2006) (internal quotations omitted). Because Commerce

failed to make a specific finding in this case and with regards to

holding that the change in the accounting methods was obviously

distortive: “it is facially apparent that a fraction of costs

does not accurately capture full costs.” Hynix Semiconductor,

Inc. v. United States, 424 F.3d 1363, 1370 (Fed. Cir. 2005).

Thus, Commerce justifiably found under 19 U.S.C. § 1677b(f)(1)(A)

that a company’s reported costs did not reasonably reflect the

costs of production. Id. As discussed in Hyundai Electronics

Industry Co. v. United States, 30 CIT __, 414 F. Supp. 2d 1289

(2006), the Hynix court excused Commerce from having to provide

any additional factual substantiation because “such a recent

switch in these cost accounting practices is facially distortive

of antidumping calculations.” Id. at 1295. Though the Federal

Circuit in Hynix also encouraged this Court to defer to

Commerce’s judgment even if the “inadequacy of this method were

not transparent,” 424 F.3d at 1370, this promotion was due to

Commerce’s experience with the specific calculations at issue in

the case.

Court No. 07-00180 Page 16

Nakornthai’s proffered evidence, “the existing record provides no

rationale to serve as a basis for judicial review of the agency’s

action.” Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi A.S. v.

United States, Slip Op. 07-167, 2007 WL 3378201, at *7 (CIT Nov.

15, 2007).

Accordingly, the court will again remand this matter for the

required findings. Because the agency has not yet made such

findings, the court does not believe that another remand to

Commerce would be “futile” in this instance. See Nippon Steel Corp.

v. United States , 458 F.3d 1345, 1359 (Fed. Cir. 2006). Cf. Altx,

Inc. v. United States, 370 F.3d 1108, 1111 (Fed. Cir. 2004).

Rather, as required by the court’s May 28 opinion, in reaching a

determination in this case, Commerce must find Nakornthai-specific

facts and must make factual findings as to Nakornthai’s particular

evidence.

Specifically, on this remand, Commerce must determine, and

explain its rationale, as to whether the evidence presented by

Nakornthai of the change in the quantity shipped was actually of

any significance, and whether, in context, this change materially

affected the date that the terms of the contract were essentially

established.

Court No. 07-00180 Page 17

III. Commerce Properly Limited Its Date of Sale Inquiry

to the Contract and Invoice Dates

In its May 28 opinion, the court precluded Nakornthai from

suggesting alternative dates as potential dates of sale, as

Nakornthai had failed to exhaust its administrative remedies on

this issue. Nakornthai Strip Mill Pub. Co. v. United States, 32 CIT

___, 558 F. Supp. 2d 1319, 1330-31 (2008). Nevertheless, the court

noted that “Commerce is still free on remand to determine . . .

which date ‘reflects the date on which the exporter or producer

establish[ed] the material terms of sale.’” Id. Thus, the court

permitted, but did not order, Commerce to examine alternative

dates. In its Remand Results, Commerce chose to limit its

“consideration of the appropriate date of sale to [the] initial

contract date or [the] invoice date as allowed by the Court.”

Remand Results at 12. The court will not disturb Commerce’s

choice.

Nakornthai urges remand on its proffered alternative dates,

arguing that Commerce simply dismissed Nakornthai’s request to

address the alternative dates without adequate and reasoned

explanation. Pl.’s Comments at 9. However, Commerce acted within

its discretion in refusing to address Nakornthai’s proposed

alternative dates. Commerce’s regulations provide that any

interested party may submit a case brief responding to the agency’s

preliminary investigation. 19 C.F.R. § 351.309(c)(1). The brief

Court No. 07-00180 Page 18

“must present all arguments that continue in the submitter’s view

to be relevant to the Secretary’s final determination or final

results.” Id. § 351.309(c)(2). When a party is responding to an

administrative review, the case brief must be submitted within 30

days after the date of publication of the preliminary results of

review. Id. § 351.309(c)(1)(ii). Nakornthai timely submitted a

case brief, but the brief did not specifically include its

arguments regarding alternative dates. Nakornthai, 558 F. Supp. 2d

at 1330. Thus, Nakornthai did not present Commerce with its

alternative dates until after the case brief deadline had passed.

Consistent with the court’s May 28 decision, Commerce could

have evaluated the alternative dates on remand, and may again grant

such consideration on further remand; however, it was and is under

no obligation to do so. The agency’s regulations do “not require

Commerce to accept new factual information beyond the established

deadline for submitting such information.” Yantai Timken Co. v.

United States, 31 CIT __, 521 F. Supp. 2d 1356, 1371 (2007)

(referring to 19 C.F.R. § 351.309(b)(1)). The court has already

determined that Commerce’s choice of the invoice date over any

other alternative involves factual components. Nakornthai, 558 F.

Supp. 2d at 1330 n.11. As such, in this instance, the court

concludes that Commerce acted within its discretion, and in

compliance with the agency’s own regulations, to limit its remand

Court No. 07-00180 Page 19

consideration to the timely-submitted arguments and evidence.7

Nakornthai further contends that a remand back to Commerce

renders exhaustion arguments “moot,” because Commerce, as the

decision maker, is free to reconsider the issue. Pl.’s Comments at

10 (citing Gleason Indus. Prods., Inc. v. United States, __ CIT __,

556 F. Supp. 2d 1344, 1346 n.2 (2008)). Gleason, however, does not

control this case and thus does not moot the exhaustion issue. The

Gleason court rejected Defendant-Intervenor’s exhaustion arguments

because the earlier remand was pursuant to Commerce’s own,

voluntary request to review new issues raised by Gleason subsequent

to Commerce’s original determination. Gleason, 556 F. Supp. 2d at

1346 n.2 (citing Gleason Indus. Prods., Inc. v. United States, Slip

Op. 07-40, 2007 WL 781196, at *5 (CIT Mar. 16, 2007)). Commerce

considered these further elaborated issues because that was the

7

While the court has occasionally required Commerce to

examine newly-submitted information on remand, despite the lack

of administrative exhaustion, those cases involved the correction

of a clerical mistake such that the court would otherwise be

knowingly affirming a determination with errors. See Hyundai

Elecs. Indus. Co. v. United States, 29 CIT 981, 395 F. Supp. 2d

1231 (2005); Maui Pineapple Co. v. United States, 27 CIT 580, 264

F. Supp. 2d 1244 (2003); Serampore Indus. Pvt. Ltd. v. U.S. Dep’t

of Comm., 12 CIT 825, 696 F. Supp. 665 (1988). “Clerical” or

“ministerial” errors are “error[s] in addition, subtraction, or

other arithmetic function, clerical error[s] resulting from

inaccurate copying, duplication, or the like, and any other

similar type of unintentional error which the Secretary considers

ministerial.” Hyundai Elecs., 395 F. Supp. 2d at 1243 (quoting 19

C.F.R. § 351.224(f)). Commerce’s decision to use invoice date as

Nakornthai’s date of sale involves “issues of methodology and

fact” rather than “unintentional error.” Id. at 1244. Therefore,

Nakornthai’s alternative dates do not involve potential clerical

errors that would fall under this line of cases.

Court No. 07-00180 Page 20

specific purpose of the remand. By contrast, the court ordered

remand in this case in order for Commerce to make a finding of fact

on the issues and arguments that the agency has already examined.

The court therefore rejects Nakornthai’s third and final

ground for remand.

Conclusion

Accordingly, this matter is remanded to Commerce for specific,

reasoned consideration of the evidence submitted by Nakornthai

regarding the significance, if any, of the actual change in the

quantity shipped, and whether this materially changed the date that

the terms of the contract were essentially established. On remand,

Commerce may limit its examination of the appropriate date of sale

to the initial contract date or the invoice date. Remand results

are due by January 26, 2009. Comments on the remand results are

due by February 9, 2009. Reply comments are due by February 16,

2009.

/s/ Donald C. Pogue

Donald C. Pogue, Judge

Dated: November 24 , 2008

New York, New York