Turkish Exporter Argues Against 'Inconsistent' Date of Sale Standard at CIT

The exporter argued that the statute "does not clearly define the date of sale." The applicable law, 19 U.S.C. Section 1677a(a), says that the export price means the price at which the subject goods are first sold or agreed to be sold. While the trade court previously deferred to Commerce's understanding of the date of sale, the Supreme Court's recent decision in Loper Bright v. Raimondo eliminated this principle of deference, the brief said.

Kaptan also argued that Commerce didn't use the "best meaning" of the statute, and that the law allows for either the invoice date or the contract date to stand as the date of sale. The agency should "comprehensively review evidence on the record in each review segment to determine the date on which price" or other material terms kept in the exporter's records are set "without a presumption in favor of a specific date," the brief said.

The exporter said the "statute, legislative history, and Commerce’s regulations are clear that Commerce’s objective, as dictated by Congress and the law, is to determine when all sales terms are finalized for purposes of reporting the correct universe of sales." The agency has "inconsistently" applied its date of sale methodology and also been "contradictory" in defining what is and isn't a "material" term of sale, the exporter said.

In some cases, Commerce said it has a long-standing practice of looking beyond the invoice date, while in others, the agency has "found the presumption in favor of the invoice date (or shipment date) to be effectively un-rebuttable, despite record evidence that the material terms are set in the contract and cannot change," Kaptan said.

Kaptan also claimed that Commerce acted beyond its delegated authority. As the trade court has previously recognized, the agency doesn't have "unbridled discretion to apply invoice date as the date of sale across-the-board, with no regard for the record evidence," even under the old Chevron deferential standard.

Commerce went beyond its authority by invoking a "unpredictable, inconsistent" date of sale standard that "has become prohibitive to use of anything other than invoice date," the brief said. Without reliable definitions of "what constitutes a sale, a material term of a sale, and a final agreement, i.e. the absence of any material change to those terms, Commerce’s interpretation of the statute cannot be viewed as 'the best,' or even a 'permissible,' interpretation," Katpan argued.

Kaptan also argued against Commerce's calculation of the differences in merchandise (DIFMER) adjustment based on the "weight averaging and indexing of reported monthly costs" instead of per unit costs reports by Kaptan, inflating the dumping margin. The exporter said the agency should "simply calculate and use a monthly DIFMER adjustment from unindexed submitted per unit costs, which reflect the true cost differences and are not impacted by timing differences."