Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
BORUSAN MANNESMANN BORU
6$1$<,9(7,&$5(7$ù,
Plaintiff,
AMERICAN CAST IRON PIPE
COMPANY, ET AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
AMERICAN CAST IRON PIPE
COMPANY, ET AL.,
Defendant-Intervenor, and
BORUSAN MANNESMANN BORU
6$1$<,9(7,&$5(7$ù,
Consolidated Defendant-Intervenor.
Before: Jane A. Restani, Judge
Consol. Court No. 19-00056
OPINION
[Commerce’s Final Results of Redetermination Pursuant to Court Remand in Large Diameter
Welded Pipe from the Republic of Turkey are sustained]
Dated: December 28, 2021
Donald Bertrand Cameron, Morris, Manning & Martin, LLP, of Washington, DC, for Plaintiff
and Consolidated Defendant-Intervenor %RUXVDQ0DQQHVPDQQ%RUX6DQD\LYH7LFDUHW$ù
With him on the brief were Brady Warfield Mills, Edward John Thomas, III, Eugene Degnan,
Jordan L. Fleischer, Julie Clark Mendoza, Mary Shannon Hodgins, Ragan William Updegraff,
Rudi Will Planert, and Sabat Chaudhary.
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Timothy C. Brightbill, Wiley Rein, LLP, of Washington, DC, for Consolidated Plaintiffs and
Defendant-Intervenors American Cast Iron Pipe Company, Berg Steel Pipe Corporation, Berg
Spiral Pipe Corporation, Dura-Bond Industries, Stupp Corporation, Greens Bayou Pipe Mill, LP,
JSW Steel (USA) Inc., Skyline Steel, Trinity Products LLC, and Welspun Tubular LLC USA.
With him on the brief were Adam Milan Teslik, Elizabeth Seungyon Lee, Enbar Toledano, Laura
El-Sabaawi, Maureen Elizabeth Thorson, and Tessa Victoria Capeloto.
Robert Ralph Kiepura, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, DC, for Defendant United States of America. With him on the brief was
Eric J. Singley. Of Counsel was Reza Karamloo, Office of the Chief Counsel for Trade
Enforcement and Compliance. U.S. Department of Commerce.
Restani, Judge: This matter is before the court following the Department of Commerce’s
(“Commerce”) second remand redetermination in the antidumping duty investigation of Large
Diameter Welded Pipe (“LDWP”) from the Republic of Turkey. Plaintiff and defendant-
intervenor, %RUXVDQ0DQQHVPDQQ%RUX6DQD\LYH7LFDUHW$ù. (“BMB”), has challenged
previous determinations and resulting antidumping duty orders as to LDWP. See Large
Diameter Welded Pipe from the Republic of Turkey: Final Determination of Sales at Less Than
Fair Value, 84 Fed. Reg. 6,362 (Dep’t Commerce Feb. 27, 2019) (“Final Determination”); Large
Diameter Welded Pipe from the Republic of Turkey: Amended Final Affirmative Antidumping
Duty Determination & Antidumping Duty Order, 84 Fed. Reg. 18,799 (Dep’t Commerce May 2,
2019); %RUXVDQ0DQQHVPDQQ%RUX6DQD\LYH7LFDUHW$ù. v. United States, 426 F. Supp. 3d
1395 (CIT 2020) (“Borusan I”).
Following a post-appeal remand, Commerce revised BMB’s post-sale price adjustment,
removed an adjustment to BMB’s cost of production (“COP”) that was based on a finding of a
cost-based particular market situation (“PMS”), and declined to reconsider BMB’s U.S. date of
sale. Final Results of Redetermination Pursuant to Court Remand at 9, ECF No. 115 (Nov. 2,
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2021) (“Second Remand Redetermination”). The adjustments resulted in a de minimis estimated
weight-average dumping margin. Id. at 8–9. Accordingly, Commerce found the date-of-sale
issue to be moot because the effective margin would not change, even if addressed, and the
analysis would be an exercise in futility. Id. The second remand redetermination adequately
addresses the court’s concerns and it is supported by substantial evidence. Thus, the second
remand redetermination is sustained.
BACKGROUND
While the court presumes familiarity with the record, the court briefly summarizes the
relevant record evidence for ease of reference. Commerce initiated an antidumping investigation
of LDWP from Turkey for the period January 1, 2017, through December 31, 2017. 	Large
Diameter Welded Pipe from Canada, Greece, India, the People's Republic of China, the Republic
of Korea, and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations, 83 Fed.
Reg. 7,154, 7,155 (Feb. 20, 2018). In Borusan I, the court sustained Commerce’s determination
that BMB was entitled to a downward post-sale price adjustment for the foregoing home-market
sales expenses, and remanded to Commerce to reconsider: (1) the amount of a post-sale price
adjustment for certain of BMB’s home-market sales; and (2) the date of sale for BMB’s United
States sales. See Borusan I, 426 F. Supp. 3d at 1400, 1406 n.11., 1415. The court stated that “no
adjustment for a PMS is permitted for the sales below cost test,” and ordered that “Commerce may
not adjust the costs based on a PMS for purposes of the sales below cost of production test.” Id.
at 1411, 1414.
On the first remand, Commerce granted BMB the post-sale price adjustment in full. Final
Results of Redetermination Pursuant to Court Remand at 11, ECF No. 86 (Dep’t Commerce Mar.
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9, 2020) (“First Remand Redetermination”). Commerce determined it was unnecessary to reach
any remaining issue because BMB’s margin was de minimis after applying the full post-sale price
adjustment. 	Id. 	The court sustained Commerce’s first remand redetermination. 	Borusan
Mannesmann Boru Sanayi ve Ticaret A.ù. v. United States, Slip. Op. 20-71, 2020 WL 2613345,
at *5 (CIT May 22, 2020) (“Borusan II”).
American Line Pipe Producers Association (“ALPPA”), consolidated plaintiffs and
defendant-intervenors, appealed the court’s judgment in Borusan II, challenging the amount of
BMB’s post-sale price adjustment. Notice of Appeal of Slip Op. 20-71, ECF No. 105 (June 24,
2020). The Federal Circuit reversed and remanded, holding that Commerce’s original granting of
a partial post-sale price adjustment was supported by substantial evidence. Borusan Mannesmann
Boru Sanayi Ve Ticaret A.ù. v. Am. Cast Iron Pipe Co., 5 F.4th 1367, 1377 (Fed. Cir. 2021)
(“Borusan III”). 	This court then remanded the action to Commerce “to address any issues
remaining from the prior remand that [were] no longer moot.” 	Order, ECF No. 110 (Aug. 26,
2021).
In the second remand redetermination, Commerce, consistent with Borusan III, granted
BMB the original partial post-sale price adjustment. Second Remand Redetermination at 9.
Commerce also recalculated BMB’s estimated weight-average dumping margin without a PMS
adjustment to the sales-below-cost test in accordance with this court’s direction in Borusan I. Id.
at 5-7. Commerce determined that BMB had an estimated weight-average dumping margin of
zero percent. Id. at 5, 9. As a result, Commerce declined to reexamine the U.S. date-of-sale
issue because it would not change the dumping margin, and thus, was moot. Id. at 5–6, 8–9.
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BMB filed comments agreeing with Commerce’s finding that the dumping margin was
zero. Comments on Remand Results at 1, ECF No. 118 (Nov. 22, 2021) (“BMB Comments”).
BMB asked the court to hold, however, that Commerce’s failure to address the date-of-sale issue
was a waiver. Id. at 3. BMB argued that the court should enter judgment in its favor on the
date-of-sale issue. Id.
ALPPA also filed comments, indicating its agreement with the partial post-sale price
adjustment. Comments on Remand Results in Opposition to Final Results of Redetermination
Pursuant to Court Remand at 2, ECF No. 119 (Nov. 22, 2021) (“ALPPA Comments”). ALPPA
also argued, however, that Commerce erred by removing the adjustment for a PMS because the
statute allows the application during the sales-below-cost test. Id. at 2. Finally, ALPPA asserted
that the court should not grant relief on the date-of-sale issue. Id. at 14–16.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C. §
1516a(a)(2)(B)(i). The court sustains Commerce’s results of an administrative review of an
antidumping duty order unless it is “unsupported by substantial evidence on the record, or
otherwise not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. 	Commerce’s Removal of an Adjustment for a PMS Is Not Contrary to Law
ALPPA argues that Commerce erred by removing the adjustment for a PMS. ALPPA
Comments at 2. It asserts that the PMS adjustment is available when the sales-below-cost test is
utilized and that the court erred in earlier decisions that held it was not available under the statute
for a COP analysis. See generally id. at 2–13. BMB and the government, however, request that
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the court sustain Commerce’s second remand redetermination as to the PMS adjustment. BMB
Comments at 3–4; Reply to Comments on Remand Results at 4, ECF No. 120 (Dec. 7, 2021).
Commerce originally applied the PMS adjustment for the sales-below-cost test under 19 U.S.C. §
1677b(b)(3). Issues and Decision Memorandum for the Final Affirmative Determination in the
Less-Than-Fair-Value Investigation of Large Diameter Welded Pipe from the Republic of
Turkey, A-489-833, POI 1/1/2017-12/31/2017 at 3 (Dep’t Commerce Feb. 19, 2019).
As the court has recently explained, no adjustment for a PMS is permitted for the
sales-below-cost test. See e.g., Borusan I, 426 F. Supp. 3d at 1411; Husteel Co. v. United States,
426 F. Supp. 3d 1376, 1383-87 (CIT 2020); Dong-A Steel Co. v. United States, 475 F. Supp. 3d
1317, 1337-41 (CIT 2020); Saha Thai Steel Pipe Public Co. v. United States, 422 F. Supp. 3d
1363, 1369-70 (CIT 2019). The Federal Circuit has affirmed this ruling, holding that Commerce
cannot “use the existence of a PMS as a basis for adjusting a respondent’s costs of production to
determine whether a respondent has made home market sales below cost.” Hyundai Steel Co. v.
United States, No. 2021-1748, 2021 WL 5856804, at *1 (Fed. Cir. Dec. 10, 2021). The Federal
Circuit reasoned that Congress intended to limit PMS adjustments to “constructed value”
determinations in § 1677b(e) and did not authorize Commerce to apply the adjustments to the
sale-below-cost determinations in § 1677b(b). Id. at *3; see also 19 U.S.C. § 1677b.
The court may lack jurisdiction over this argument. The court ordered Commerce to
remove the adjustment for a PMS in Borusan I. See Borusan I, 426 F. Supp. 3d at 1411, 1414.
In the first remand redetermination, Commerce did not do a recalculation based on removal of
the PMS adjustment, even though it could not do otherwise, if it would affect the outcome. See
First Remand Redetermination at 4. As developments revealed, however, the issue was only
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temporarily moot. Id. After the court sustained the first remand redetermination, see Borusan II,
Slip. Op. 20-71, 2020 WL 2613345, at *1. ALPPA apparently did not raise any issue on appeal
regarding the court’s order to remove the PMS. See generally Borusan III, 5 F.4th at 1367. The
issue is arguably “precluded from further adjudication” because it was likely included in the
scope of the final appealed judgment. See Phil-Insul Corp. v. Airlite Plastics Co., 854 F.3d
1344, 1357 (Fed. Cir. 2017) (“An issue that falls within the scope of the judgment appealed from
but is not raised by the appellant in its opening brief on appeal is necessarily waived. . . . [A]ll
issues within the scope of the appealed judgment are deemed incorporated within the mandate
and thus are precluded from further adjudication.”) (internal citations omitted). The scope of the
appealed judgment likely included the removal of the PMS adjustment in the first remand
redetermination because it was an issue finally decided in Borusan I and Borusan II, and left no
opportunity for further explanation or reconsideration by Commerce. See id. Thus, the court
may lack jurisdiction over the issue because ALPPA did not raise the argument on appeal when
it had the opportunity to do so.
Assuming the court has jurisdiction over the issue, it sustains Commerce’s removal of the
adjustment for a PMS. In Borusan I, the court ordered Commerce to remove the adjustment,
holding that the PMS adjustment does not apply to the sales-below-cost test. See Borusan I, 426
F. Supp. 3d at 1411, 1414–15. Commerce is now complying with the court’s order. See Second
Remand Redetermination at 5–6. ALPPA has shown no reason for the court to depart from that
order. Further, the Federal Circuit has also recently held that Commerce is not authorized to
apply the PMS adjustment for the sales-below-cost test. See Hyundai Steel, 2021 WL 5856804
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at *1, *5. Here, because Commerce was determining BMB’s COP for purpose of the
sales-below-cost test, it was not permitted to apply the PMS adjustment. See id.
II. 	It Is Not Necessary for the Court to Address the Date-of-Sale Argument
While BMB requests that the court sustain the second redetermination, it also urges the
court to find in its favor regarding “outstanding issues,” including its U.S. date of sale. BMB
Comments at 4. BMB argues that Commerce failed to act on the court’s instruction to “address
all open issues,” and Commerce’s characterization of the date-of-sale issue as moot was in error.
Id. at 2. It asserts that Commerce’s decision warranted the court holding that Commerce waived
the opportunity to use any date other than the contract date, and thus, the court should rule in
BMB’s favor. Id. ALPPA asserts that the court should not grant relief in BMB’s favor. ALPPA
Comments at 16–17.
It is not necessary for Commerce to calculate an adjustment if it “would impose a
needless expense and waste the agency’s time” because it would not change the ultimate rate
determination. See Roses Inc. v. United States, 15 CIT 465, 471, 774 F. Supp. 1376, 1381
(1991). Here, Commerce’s determinations have rendered BMB’s estimated weighted-average
dumping margin de minimis and the date-of-sale determination would not change the rate
determination. See Second Remand Redetermination at 8–9. Commerce does not need to
calculate an adjustment if BMB has already secured the “maximum possible relief” when the
margin rate was already de minimis. See Borusan II, 2020 WL 2613345, at *5; see also Roses,
15 CIT at 471, 774 F. Supp. at 1381. Commerce correctly assumed that the court would not
require useless acts. Accordingly, Commerce’s second remand redetermination is sustained in
full.
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CONCLUSION
For the foregoing reasons, the second remand redetermination is SUSTAINED.
Judgment will issue accordingly.
/s/ 	Jane A. Restani
Jane A. Restani, Judge
Dated: 'HFHPEHU
New York, New York
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