It is apparent to the court that Commerce has read too much into Fujitsu, which is readily distinguishable. First, Fujitsu approved costs constructed on an annual basis. Id. at 1039 ("decision to sustain Commerce's use of annual weighted-average COP in calculating FMV . . . correct.") (emphasis added). This is basically all plaintiffs seek here. They want costs for a fiscal year matched to sales for a fiscal year.6 In Fujitsu, respondents sought monthly or quarterly averaging. Id. at 1036.
Second, almost all of the factors which the appellate court found were missing in Fujitsu are present here. Fujitsu involved multi-input television receivers, id., not a one primary-input product, such as canned pineapple from raw pineapple. In such a case, Commerce must be particularly sensitive to changes in the price of the raw commodity. See e.g. Brass Sheet and Strip From the Netherlands, 53 Fed. Reg. 23,431, 23,432-33 (Dept Commerce 1988) (final LTFV determ.) (POR split to account for metal price rise).7 Next, the Fujitsu court noted no significant cost rise from the beginning to the end of the POR. Fujitsu, 88 F.3d at 1039. Here, a cost rise of almost 50% occurred over eighteen months, notwithstanding the fact that there was a tremendous cost rise mid-review which moderated somewhat by June 1996. See Pl.'s Br. at Tab C (reflecting monthly fresh pineapple costs from January 1995 to June 1996).
In the past, the Department has adjusted for changes in costs over the POR or matched costs to POR sales more specifically than it did here. The court notes a few particularly telling examples. In Certain Cold-Rolled Carbon Steel Flat Products from Germany, for example, the Department relied upon separate fiscal year costs and allocated expense data for sales observations according to the year in which the sales took place. 60 Fed. Reg. 65,264, 65,270 (Dep't Commerce 1995) (final results of antidumping duty admin. rev.).8
Commerce admits that there is a basic principle that Commerce will utilize shorter cost reporting periods if markets experience significant and consistent price declines. See, e.g., Static Random Access Memory Semiconductors from Taiwan, 63 Fed. Reg. 8,909, 8,920 (Dep't Commerce 1998) (final LTFV determ.). Commerce has not explained why significant price rises are not worthy of such an adjustment.9
Finally, the Department cannot explain away the following cases. In Sweaters Wholly or in Chief Weight of Man-Made Fiber from Taiwan, the Department did not use annual average unit costs where there was a significant variation between what was produced during the POR and what was sold during the POR. 55 Fed. Reg. 34,585, 34,596 (Dept Commerce 1990) (final LTFV determ.) [hereinafter Sweaters]. Instead the Department used the costs of the individual production runs (whether or not falling within the POR) in which the subject merchandise was actually produced. Id. In Fresh and Chilled Atlantic Salmon from Norway, the Department found that a single average cost of cultivation (COC) should not be calculated for the POR, stating:
58 Fed. Reg. 37,912, 37,913 (Dept Commerce 1993) (final results of antidumping duty admin. review) (emphasis added).
It is insufficient to cast away previous decisions on the basis that the extent of the distortion was not noted. This cannot be a way to insulate inconsistent decisions from review. While it is certainly true that the need to use monthly averages generally may be restricted to cases of hyper inflation, see Asociacion Colombiana de Exportadores de Flores v. United States, 6 F. Supp.2d 865, 873-74 n.7 (Ct. Int'l Trade 1998), even Commerce recognizes that there is a middle range choice of six months to one year averaging. There is also the possibility of matching costs more closely with sales, as various administrative determinations indicate.
Given the distortions in calculating COP and CV caused by inattention to the price rise for a single primary input product, and the lag between goods produced (in a one-day canning process) but not sold until months later, Commerce must revisit this issue.
Commerce must reanalyze the data to determine whether TPC has provided sufficient data to match costs to appropriate fiscal year sales. If it has, in the absence of any proper antidumping policy reason10 for not doing this seemingly minimally burdensome and substantially less distortive comparison, Commerce must proceed as it has in the past and match fiscal year costs with sales.
II. Use of Date of Contract for Date of Third Country Sale
In its antidumping analysis, Commerce identifies a "date of sale" for merchandise sold to the United States, the exporting country, and third countries. In the Final Results, Commerce recognized the existence of two dates associated with TPC's export price ("EP") and third-country sales: the earlier date of contract and the later date of invoice. See 63 Fed. Reg. at 7,394. Commerce examined these dates and found that all but five of the third country sales11 had identical terms in both the contracts and the invoices. Id. Thus, Commerce determined that the date of contract was the proper date of sale because the contract, not the invoice, established the material terms of sale. Id.
The first question to ask is what principle should guide Commerce in choosing the date of sale. It appears undisputed that in the past, in general, Commerce has looked to the date by which the essential terms of sale are fixed in order to determine date of sale. See Al Tech Specialty Steel Corp. v. United States, No. 97-08-01328, 1998 WL 661461, at *2 (Ct. Int'l Trade 1998) (citing cases). This seems reasonable if one is trying to compare sales in two markets or costs and sales.
There is no new statutory guidance on this point except for the general statement that NV shall be the price "at a time reasonably corresponding to the time of the sale used to determine the export price or constructed export price." 19 U.S.C. § 1677b(a)(1)(A). There was no regulation on point applicable to the investigation at issue.
On March 29, 1996, Commerce stated in an internal memorandum that it had published proposed regulations which provide that the agency would normally establish the date of invoice as the date of sale. Pl.'s Br. at Tab D. Commerce further stated that it was implementing this change immediately in all reviews initiated after April 1, 1996. Id. The administrative review at issue here was initiated on August 15, 1996. Initiation of Antidumping Duty and Countervailing Duty Admin. Reviews, 61 Fed. Reg. at 42,417. The proposed regulations referenced by Commerce in its March 29, 1996, memorandum were ultimately issued as final regulations on May 19, 1997. See Antidumping Duties; Countervailing Duties, 62 Fed. Reg. 27,296, 27,296 (Dep't Comm. 1997) ("Final Regulations"). The Final Regulations, however, only apply to reviews requested on or after July 1, 1997. See 19 C.F.R. § 351.701 (1998). With regard to reviews conducted pursuant to the Uruguay Round Agreements Act (URAA), Pub. L. No. 103-465, 108 Stat. 4809 (1994), but not formally subject to the Final Regulations, Commerce stated, "[P]art 351 will serve as a restatement of the Department's interpretation of the requirements of the Act as amended by the URAA." Id. In this case, Commerce did not refer to the regulations as controlling, but, rather, discussed the regulations as reflecting Commerce's current practice with respect to date of sale. Final Results, 63 Fed. Reg. at 7,394 n.2.
Notwithstanding its new policy preference to utilize the date of invoice as the default date of sale, Commerce determined that the date of contract for TPC's EP and third-country sales should determine the date of sale. Id. at 7,394. In the Final Results, Commerce stated that its new preference for the date of invoice would apply "absent satisfactory evidence that the terms of sale were finally established on a different date." Id. (quoting the Final Regulations, 62 Fed. Reg. at 27,349). With regard to TPC, Commerce stated that it found sufficient evidence that the terms of sale were established on a different date. As noted by Commerce, "[t]he evidence on the record indicates that there were changes to the contracted terms of TPC's POR sales for only one out of several hundred EP sales, and five out of several hundred third country sales." Id. For this reason, Commerce determined that the date of contract should act as the date of sale because all material terms of sale were established at the time of contracting. Id.
7. Defendant is incorrect that this was necessitated by the difference in merchandise provision because similar, not identical, merchandise was used for comparison. The Brass Sheet respondents requested a circumstances of sales adjustment to account for a 70% metals price rise. This was denied, and separate foreign market values were computed for four-month periods. Comparison U.S. sales were matched to the periods. See Brass Sheet 54 Fed. Reg. at 23,432-433.
8. Defendant is incorrect that this was done only for the general expenses calculation. It is apparent from the discussion that separate fiscal year costs and expenses were used for all elements of constructed value because the respondent reported them that way. See Certain Cold-Rolled Carbon Steel Flat Products from Germany, 60 Fed. Reg. at 65,270.
9. Moreover, in the preliminary determination in Static Random Access, the Department stated that it would generally "compare sales and conduct the sales below cost test using annual averages. However, where prices have moved significantly over the course of the POI, it has been the Department's practice to use shorter time periods." Static Random Access Memory Semiconductors from Taiwan, 62 Fed. Reg. 51,442, 51,444 (Dep't Commere 1997) (prelim. determination of sales at LTFV) (emphasis added). This statement further shows there is no reason to limit the use of shorter cost reporting periods to instances when the market experiences price declines and not when it experiences price increases.
10. Commerce's answer that respondents would only provide pre-POR cost data when it suited them does not appear to be a sufficient reason. Commerce can ask for relevant cost data if costs are either declining or rising significantly and it has not been stopped by such a concern in the past. See, e.g., Sweaters, 55 Fed. Reg. at 34,596.
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