Commerce Correct That Exporter's Sales Dates Were the Earlier of Shipment or Invoice Dates, US, Petitioner Say

Both parties filed responses to exporter Toyo Kohan’s motion for judgment in its case challenging Commerce's antidumping duty review on nickel-plated steel products from Japan.

The U.S. said that when Toyo Kohan raised the date of sale issue, it described Commerce as “inadvertently” using shipment dates rather than invoice dates as the dates of sale for its U.S. transactions. But Commerce actually conducted a comparison between the two sets of dates in its preliminary results and chose to rely on a SALEDATU field in Toyo Kohan’s dataset reflecting the earlier of those two options per U.S. sale, the government said.

It acknowledged that the department’s regulations “create a ‘rebuttable presumption’” in favor of using invoice sales as dates of sale. But Commerce may use different dates if it thinks they better reflect the date on which a sale’s material terms, such as price and quantity, were set, it said.

It said Congress intended that “the date of sale be flexible” for greatest possible accuracy. As a result, Commerce also may look to the parties’ behavior and expectations throughout the transaction to establish the actual sales dates, it said.

Both parties said that Commerce’s practice has actually been to use whichever date is earlier between an exporter’s shipment or invoice dates. Because the shipment dates were earlier for exporter Toyo Kohan’s U.S. sales, the department properly relied on them, Thomas Steel said.

The Court of International Trade has upheld this practice, the petitioner said, stating in Tension Steel Industries Co. v. United States that “[w]hen a party ships its product to a customer, it is reasonable to assume that the material terms of the sale have been established.” As a result, “logically,” when there is no “compelling evidence” showing changes to an exporter’s material sales term after the date of shipment, Commerce relies on the earliest date between the shipment and invoice dates, it said.

Nothing on the record supported Toyo Kohan’s assertion that the material terms of its U.S. sales changed after shipment, the parties said.

They argued that although the exporter Toyo Kohan claimed that “more than half” of its U.S. prices saw changes after shipment dates, these “were only internal accounting entries known to Toyo Kohan” meant to reconcile its sales and accounting records. The U.S. added that Toyo Kohan hadn’t exhausted this particular argument because it failed to raise it administratively, having only alleged a “broad date-of-sale issue.”

Instead, record evidence shows that the exporter and its U.S. purchaser were both “well aware” of the sale’s price by the time of shipment, both parties said. This evidence includes communications and payment invoices between Toyo Kohan and the exporter’s pricing formula, they claimed.

The parties also pushed back against Toyo Kohan’s argument that Commerce had to use invoice dates because it had done so in previous reviews. Each review stands on its own, so the department may change its position so long as that change is reasonably explained, Thomas Steel said.

They also disagreed with Toyo Kohan’s argument, based on the recent case Marmen Inc. v. United States, that Commerce conducted a wrongful Cohen’s d test in its review. Again, the exporter waived the issue by failing to raise it earlier, they said.