Nucor Corp. v. United States

2009 CIT 50

Opinion

Slip Op 09 - 50

UNITED STATES COURT OF INTERNATIONAL TRADE

: NUCOR CORPORATION, GERDAU : AMERISTEEL, INC., and COMMERCIAL : METALS COMPANY, : : Plaintiffs, : : v. : Before: MUSGRAVE, Senior Judge : Consol. Court No. 07-00457 UNITED STATES OF AMERICA, : : Defendant, : : and : : EKINCILER DEMIR ve CELIK SANAYI A.S., : EKINCILER DIS TICARET A.S., HABAS : SINAI ve TIBBI GAZLAR ISTIHSAL : ENDUSTRISI A.S., COLAKOGLU DIS : TICARET A.S., COLAKOGLU METALURJI : A.S., KAPTAN DEMIR CELIK ENDUSTRISI : ve TICARET A.S., KAPTAN METAL DIS : TICARET ve NAKLIYAT A.S., DILER DEMIR : CELIK ENDUSTRISI ve TICARET A.S., : DILER DIS TICARET A.S., TAZICI DEMIR : CELIK SANAYI ve TURIZM TICARET A.S., : KROMAN CELIK SANAYII A.S., : : Defendant-Intervenors. : :

JUDGMENT

This matter having consolidated complaints filed on behalf of the plaintiff members

of the domestic U.S. industry and of the intervenor-defendant foreign manufacturers and exporters

Ekinciler Demir ve Celik Sanayi A.S. and Ekinciler Dis Ticaret A.S. (“Ekinciler”), each contesting Court No. 07-00457 Page 2

aspects of Certain Steel Concrete Reinforcing Bars from Turkey; Final Results of Antidumping Duty

Administrative Review and New Shipper Review and Determination to Revoke in Part, published by

the International Trade Administration, U.S. Department of Commerce (“Commerce”) at 72 Fed.

Reg. 62630 (Nov. 6, 2007), and the members of the domestic industry having voluntarily dismissed

their complaints and Ekinciler having interposed a motion for judgment on the agency record

developed in connection therewith; and the court in slip opinion 09-30, 33 CIT ___ (Apr. 14, 2009),

having granted Ekinciler’s motion to the extent of remand to Commerce for the purpose of

recalculating Ekinciler’s costs of production without imputing depreciation for the so-called “melt

shop modernization account,” the nature of which the court remarked was “uncontroverted” since

the evidence of record in opposition to Ekinciler’s proof thereon amounted to mere speculation or

conjecture, with no finding by Commerce that the account was other than as represented by

Ekinciler, notwithstanding that the account was maintained among its books and records as a so-

called “capitalized asset,” and Commerce, in its remand results, expressing dissatisfaction with that

portion of the opinion concerning Commerce policy on the treatment foreign exchange losses

(Commerce reiterating that Ekinciler failed to exhaust its administrative remedies because it never

gave Commerce “the opportunity to explain its policy,” which Commerce continues to aver is

described in Dynamic Random Access Memory Semiconductors of One Megabit or Above From the

Republic of Korea, 66 Fed. Reg. 52097 (Oct. 12, 2001), but which review precedes by a year and a

half the policy announced in Certain Preserved Mushrooms from India: Preliminary Results of

Antidumping Administrative Review, 68 Fed. Reg. 11045, 11048 (Mar. 7, 2003) (“we will normally

include in the interest expense computation all foreign exchange gains and losses”) (italics added), Court No. 07-00457 Page 3

and concerning which exhaustion of administrative remedies is inapplicable because (1) under that

doctrine all that is required is a brief statement alerting the agency to a plaintiff’s position such that

the agency can address it, see, e.g., China Steel Corp. v. United States, 2 CIT 715, 740-41, 264 F.

Supp. 2d 1339, 1364 (2003), and which requirement Ekinciler met in its administrative case brief,

see, e.g., Pl.s’ Reply at 14, and (2) it is well-settled that it is incumbent upon the agency, presumed

to know its own policies, to explain any deviations therefrom, see, e.g., Slip Op. 09-30 at 5 and cases

cited, and the court therefore considering such argument of Commerce without merit), and

Commerce further expressing dissatisfaction with the court’s order because Commerce’s intent “was

to properly match costs to the periods that benefitted from such costs” and averring further that

“Ekinciler received a benefit during the [period of review] from the capitalization of these expenses

as an asset in its financial statements” and that “[t]he capitalization of this asset helped generate

revenues over the periods subsequent to the 2001 financial crisis, including the POR, impacting

Ekinciler’s cost of production,” but without further specifics explaining such rationalization or

speculation, which appears to be post hoc in any event, and Commerce’s remand having otherwise

complied with the court’s order and resulting in a recalculated dumping margin of 0.11 percent; now,

therefore, in view of the foregoing, it is hereby

ORDERED, ADJUDGED and DECREED that defendant’s Final Results of

Redetermination Pursuant to Court Remand (May 14, 2009), be, and they hereby are, sustained.

/s/ R. Kenton Musgrave R. KENTON MUSGRAVE, Senior Judge Dated: May 22, 2009 New York, New York