Maverick Tube Corp. v. United States, 2016-1649, 2016-1656, 2016-1689

• Decision Date: 30 May 2017
• Docket Number: 2016-1649, 2016-1656, 2016-1689
• Citation: 857 F.3d 1353
• Parties: MAVERICK TUBE CORPORATION, United States Steel Corporation, Plaintiffs–Cross–Appellants Boomerang Tube LLC, Energex Tube, TMK IPSCO, Tejas Tubular Products, Vallourec Star, L.P., Welded Tube USA Inc., Plaintiffs v. UNITED STATES, Defendant–Appellee v. Cayirova Boru Sanayi Ve Ticaret A.S., Toscelik Profil Ve Sac Endustrisi A.S., Defendants–Appellees Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Istikbal Ticaret, Defendants–Appellants
• Court: U.S. Court of Appeals — Federal Circuit

857 F.3d 1353

MAVERICK TUBE CORPORATION, United States Steel Corporation, Plaintiffs–Cross–Appellants

Boomerang Tube LLC, Energex Tube, TMK IPSCO, Tejas Tubular Products, Vallourec Star, L.P., Welded Tube USA Inc., Plaintiffs

v.UNITED STATES, Defendant–Appellee

v.Cayirova Boru Sanayi Ve Ticaret A.S., Toscelik Profil Ve Sac Endustrisi A.S., Defendants–Appellees

Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Istikbal Ticaret, Defendants–Appellants

2016-1649, 2016-1656, 2016-1689

United States Court of Appeals, Federal Circuit.

Decided: May 30, 2017

Robert E. DeFrancesco , III, Wiley Rein, LLP, Washington, DC, argued for plaintiff-cross-appellant Maverick Tube Corporation. Also represented by Alan H. Price , Stephanie Manaker Bell, Tessa V. Capeloto , Laura El–Sabaa wi, Jeffrey Owen Frank, Derick Holt, Usha Neelakantan, Adam Milan Teslik .

Kelsey Rule , Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, argued for plaintiff-cross-appellant United States Steel Corporation. Also represented by Debbie Leilani Shon, Jonathan Gordon Cooper, Jon David Corey, Philip Charles Sternhell .

Hardeep Kaur Josan , International Trade Field Office, Commercial Litigation Branch, Civil Division, United States Department of Justice, New York, NY, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer , Jeanne E. Davidson , Claudia Burke , Washington, DC; Scott Daniel McBride , Office of the Chief Counsel for Import Administration, United States Department of Commerce, Washington, DC.

Mark B. Lehnardt , Antidumping Defense Group, LLC, Washington, DC, argued for defendants-appellees Cayirova Boru Sanayi Ve Ticaret A.S., Toscelik Profil Ve Sac Endustrisi A.S. Also represented by David L. Simon , Law Offices of David L. Simon, Washington, DC.

Julie Mendoza , Morris, Manning & Martin, LLP, Washington, DC, argued for defendants-appellants Borusan Mannesmann Boru Sanayi Ve Ticaret A.S., Borusan Istikbal Ticaret. Also represented by Donald Cameron, Jr ., Mary Hodgins , Brady Mills , R. Will Planert , Sarah Suzanne Sprinkle .

Before Prost, Chief Judge, Lourie and Taranto, Circuit Judges.

Lourie, Circuit Judge.

Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. and Borusan Istikbal Ticaret (together, "Borusan") appeal from the final judgment of the Court of International Trade ("the Trade Court") sustaining the determination of the U.S. Department of Commerce ("Commerce") on remand to apply adverse facts available ("AFA") after Borusan did not report input purchases for two of its steel mills. See Maverick Tube Corp. v. United States , No. 14-00229, 2016 WL 703575 (Ct. Int'l Trade Feb. 22, 2016) (" Borusan II "); Final Results of Remand Determination, Maverick Tube Corp. v. United States , No. 14–00229, ECF No. 92, slip op. at 19–28 (Ct. Int'l Trade Aug. 31, 2015) ("Remand Results "). Maverick Tube Corporation and U.S. Steel (together, "Maverick") cross-appeal, arguing that the Trade Court should not have vacated Commerce's original finding that the Turkish market for hot-rolled steel ("HRS") was distorted by government involvement. See Borusan Mannesmann Boru Sanayi Ve Ticaret v. United States , 61 F.Supp.3d 1306, 1327–31 (Ct. Int'l Trade 2015) (" Borusan I "); Certain Oil Country Tubular Goods From the Republic of Turkey , 79 Fed. Reg. 41,964 (Dep't of Commerce July 18, 2014) ("Original Results "). In the alternative, Maverick challenges the Trade Court's sustaining of Commerce's refusal to apply AFA to the government of Turkey ("GOT") for failing to provide data on the Turkish market for HRS or to adequately explain its lack of data. See Borusan II , 2016 WL 703575, at *2–3. For the reasons that follow, we affirm .

BACKGROUND

On July 2, 2013, certain domestic producers of oil country tubular goods ("OCTG") filed a petition with Commerce alleging that GOT was providing countervailable subsidies to domestic exporters. Borusan I , 61 F.Supp.3d at 1310–11. Commerce subsequently instituted a countervailing duty investigation. Certain Oil Country Tubular Goods from India and Turkey , 78 Fed. Reg. 45,502 (Dep't of Commerce July 29, 2013). Although myriad arguments were presented to Commerce and the Trade Court prior to the present appeal, we recount only those facts relevant to the appealed issues.

After institution, Commerce selected Borusan and GOT as mandatory respondents. Because HRS is an input used in the manufacture of OCTG, Commerce then issued each a questionnaire relating to the provision of HRS in Turkey. As Borusan and GOT's responses implicate different issues, we provide further factual and procedural background relating to each in turn.

A. Borusan

In its initial questionnaire, Commerce asked Borusan to report its purchases of HRS during the period of investigation ("POI"), "regardless of whether [Borusan] used the [HRS] to produce [OCTG]" during that period. Joint Appendix ("J.A.") 1645. Borusan responded that it had three production facilities during the POI: Gemlik, Halkali, and Izmit. J.A. 1645. During the POI, Borusan averred that (1) only Gemlik produced subject OCTG; and (2) no HRS purchased for the other facilities was transferred to Gemlik. J.A. 1645. Borusan only provided data for the Gemlik location because only that location "could have benefitted from subsidies attributable to the production or sale of the OCTG subject merchandise." J.A. 1645.

Borusan noted that it had difficulties compiling that information. Specifically, Borusan contended that (1) the process of gathering the requested data was "extremely time consuming and burdensome," resulting in "well over 300 printed pages"; and (2) gathering the requested data required Borusan to "extract the data from two different data systems." J.A. 1645 & n.2. Accordingly, Borusan argued that requiring data for the other two locations "would impose great burdens on [Borusan] for no purpose." J.A. 1645.

Commerce saw the matter differently. In a supplemental questionnaire, Commerce noted that Borusan "did not ... report HRS purchases for [Borusan]'s two other mills," despite the original questionnaire asking for that information. J.A. 4393. Thus, Commerce asked Borusan to "please report all of [Borusan]'s purchases of HRS, including its purchases for the Halkali and Izmit mills." J.A. 4393. Commerce did indicate, however, that if Borusan was "unable to provide this information," it should "explain in detail why [Borusan could] not provide this information and the efforts [Borusan] made to provide it to [Commerce]." J.A. 4393.

In response, Borusan did not provide data for the Halkali and Izmit locations. Instead, Borusan further detailed its difficulties in compiling data for the Gemlik location. Borusan reiterated its statements from its initial response, explained that it had to separate expenses manually, and that the process for Gemlik alone "took over two weeks of preparation by numerous members of [Borusan]'s staff." J.A. 5975–76. Thus, Borusan asked Commerce to "take into consideration the significant burdens associated with gathering" information relating to the Halkali and Izmit mills. J.A. 5976.

Borusan then attempted to invoke 19 U.S.C. § 1677m(c)(1) and (2), J.A. 5976–77, which provide that if an interested party notifies Commerce promptly after receiving a request that it is "unable to submit the information requested in the requested form and manner, together with a full explanation and suggested alternative forms," then Commerce "shall consider the ability of the interested party" and "may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party." Borusan explained that it had informed Commerce of the burdens associated with producing the requested information, and expanded on those burdens in response to the supplemental questionnaire. J.A. 5977. Borusan indicated that it believed that the Gemlik data was sufficient because, in its view, the Gemlik data allowed Commerce to capture "any possible benefit from [Borusan]'s ... purchases that may have benefitted the production or sale" of the subject OCTG. J.A. 5977–78. Nevertheless, Borusan indicated "its intention [ ]to fully cooperate" with Commerce's investigation and "to respond to all reasonable requests for information." J.A. 5978. If Commerce "insist[ed] on full reporting of all hot-coil purchases from every facility" then Borusan indicated that it was "ready to provide that information with the understanding that it will require several weeks to do so." J.A. 5978.

Commerce did not respond directly to Borusan's response to the supplemental questionnaire. Instead, in its preliminary determination, and again in its post-preliminary calculation memo and final determination, Commerce determined that it was appropriate to apply AFA to Borusan because Borusan did not provide data relating to the Halkali and Izmit locations. Certain Oil Country Tubular Goods from the Republic of Turkey , 79 Fed. Reg. 41,964, 79 ITADOC 41,964, Issues & Decision Memorandum, at 9–12 (Dep't of Commerce July 18, 2014) ("Original Results Memo ").

Commerce noted that it had twice requested data relating to all purchases of HRS and that Borusan did not provide those data or provide evidence that they were unavailable. Id. at 10–11. Thus, Commerce determined that Borusan "failed to cooperate by not acting to the best of its ability because Borusan withheld requested information on its purchases of HRS, despite having two opportunities, and never requested an extension." Id. at 12. Borusan appealed the application of AFA to the Trade Court, which remanded to Commerce for further justification of why it needed data for the Halkali and Izmit locations. Borusan I , 61 F.Supp.3d at 1348–49.

On remand, Commerce determined that data on the Halkali and Izmit locations were necessary, and again determined that it was appropriate to apply AFA given that Borusan did not provide such data. See Borusan II , 2016 WL 703575, at *3–8 (discussing Commerce's determination on remand)....