Maverick Tube Corp. v. United States, 022216 USCIT, 14-00229

Docket Nº:14-00229
Opinion Judge:R. KENTON MUSGRAVE, SENIOR JUDGE.
Party Name:MAVERICK TUBE CORPORATION, Plaintiff, v. UNITED STATES, Defendant, and UNITED STATES STEEL CORPORATION, BOOMERANG TUBE LLC, ENERGEX TUBE (a division of JMC STEEL GROUP), TEJAS TUBULAR PRODUCTS, TMK IPSCO, VALLOUREC STAR, L.P., and WELDED TUBE USA INC., Plaintiff-Intervenors, and TOSCELIK PROFIL VE SAC ENDUSTRISI A.S., CAYIROVA BORU SANAYI VE TI...
Attorney:Alan H. Price and Robert E. DeFrancesco, III, Wiley Rein, LLP, of Washington DC, for the plaintiff Maverick Tube Corporation. Robert E. Lighthizer, Jeffrey D. Gerrish, and Nathaniel B. Bolin, Skadden Arps Slate Meagher & Flom, LLP, of Washington DC, for the plaintiff-intervenor United States Stee...
Judge Panel:Before: R. Kenton Musgrave, Senior Judge.
Case Date:February 22, 2016
Court:Court of International Trade
 
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MAVERICK TUBE CORPORATION, Plaintiff,

and

UNITED STATES STEEL CORPORATION, BOOMERANG TUBE LLC, ENERGEX TUBE (a division of JMC STEEL GROUP), TEJAS TUBULAR PRODUCTS, TMK IPSCO, VALLOUREC STAR, L.P., and WELDED TUBE USA INC., Plaintiff-Intervenors,

v.

UNITED STATES, Defendant,

and

TOSCELIK PROFIL VE SAC ENDUSTRISI A.S., CAYIROVA BORU SANAYI VE TICARET A.S., BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., and BORUSAN ISTIKBAL TICARET, Defendant-Intervenors.

No. 14-00229

Slip Op. 16 - 16

Court of Appeals of International Trade

February 22, 2016

Sustaining results of remand of countervailing duty investigation into oil country tubular goods from Turkey.

Alan H. Price and Robert E. DeFrancesco, III, Wiley Rein, LLP, of Washington DC, for the plaintiff Maverick Tube Corporation.

Robert E. Lighthizer, Jeffrey D. Gerrish, and Nathaniel B. Bolin, Skadden Arps Slate Meagher & Flom, LLP, of Washington DC, for the plaintiff-intervenor United States Steel Corporation.

Hardeep K. Josan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, for the defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of Counsel on the brief was Scott D. McBride, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce.

David L. Simon, Law Office of David L. Simon, of Washington DC, for the defendant-intervenors Toscelik Profil ve Sac Endustrisi A.S. and Cayirova Boru Sanayi ve Ticaret A.S.

Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S. Hodgins, and Sarah S. Sprinkle, Morris Manning & Martin, LLP, of Washington DC, for the defendant-intervenors Borusan Mannesmann Boru Sanayi ve Ticaret A.S. and Borusan Istikbal Ticaret.

Before: R. Kenton Musgrave, Senior Judge.

OPINION

R. KENTON MUSGRAVE, SENIOR JUDGE.

This opinion addresses the results of remand ("Remand Results" or "RR") filed by the International Trade Administration, U.S. Department of Commerce ("Commerce"), on the underlying consolidated case, familiarity with which is presumed. As discussed below, the Remand Results are supported by substantial evidence and in accordance with law.

By way of brief background, the products that concerned the final affirmative countervailing duty ("CVD") investigation are oil country tubular goods ("OCTG") from Turkey, in particular the alleged state provision of hot-rolled steel for less than adequate remuneration ("LTAR") and other state benefits in the production thereof. See Certain Oil Country Tubular Goods From the Republic of Turkey, 79 Fed. Reg. 41964 (July 18, 2014), PDoc 369, and accompanying issues and decision memorandum (July 10, 2014) ("IDM"), PDoc 363, (collectively "Final Determination"); see also 19 U.S.C. §1677(5). The period of investigation is January 1, 2012, through December 31, 2012 ("POI").

Borusan Mannesmann Boru Sanayi ve Ticaret A.S. and Borusan Istikbal Ticaret (together "Borusan") filed the first appeal of the Final Determination. See Court No. 14-00214. Opposing consolidation with the other lawsuits challenging the investigation filed thereafter, Borusan also filed a "motion to expedite briefing and consideration." Id., ECF No. 7 (Sep. 10, 2014). The filing of a joint proposed scheduling order, to which the defendant had consented, mooted acting on the motion to expedite briefing, see id., ECF No. 11 (Sep. 17, 2014), and motions to intervene in that action were filed thereafter and duly acted upon in the order received, see id., ECF Nos. 30-33 (Sep. 29, 2014).

Issuance of slip opinion 15-36 in due course remanded to Commerce and obviated acting on the motion for expedited consideration.1 See Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 39 CIT ___, 61 F.Supp.3d 1306 (2015) ("Borusan"). In the court's opinion, substantial evidence of record appeared to support Commerce's determination that HRS suppliers Eregli Demir ve Celik Fabrikalari T.A.S. ("Erdemir") and its subsidiary Iskenderun Demir ve Celik A.S. ("Isdemir") were government "authorities" for purposes of the CVD statute, but further consideration of the finding that the Turkish HRS market was distorted as well as the application of adverse facts available ("AFA") with respect to reported HRS purchases by Borusan was remanded as necessary. See generally 39 CIT at ___, 61 F.Supp.3d at 1324-49; see also 19 U.S.C. §§ 1677e(a) and (b). Also remanded were several other issues related to benefit measurements under 19 C.F.R. §351.511(a)(2)(iv), the further consideration of which depended upon the Turkish HRS market's level of distortion. See 61 F.Supp.3d at 1337.

Subsequently, Maverick Tube Corp. v. United States, 39 CIT, Slip Op. 15-59 (June 15, 2015) ("Maverick"), addressed the similar claims of the domestic industry litigants and the respondent Toscelik Profil ve Sac Endustrisi A.S. (together with Cayirova Boru Sanayi ve Ticaret A.S., "Toscelik") separately filed here against the HRS-for-LTAR aspect of the investigation into OCTG from Turkey as well as Toscelik's claim against the agency's benchmark for valuing a parcel of land that the Government of Turkey ("GOT") had granted to Toscelik in 2008 for LTAR (the "Osmaniye Parcel"). See generally Slip Op. 15-59. Maverick adopted Borusan in remanding the same or similar issues, and the two cases were consolidated during remand.2

In the Remand Results before the court, Commerce reversed its prior position regarding market distortion under protest and used tier-one (i.e., actual) transaction prices in Turkey as a benchmark to calculate the benefit from the provision of HRS for LTAR to Borusan and Toscelik during the POI. RR at 18, 46. As a result, Commerce deemed the remaining benefit-related matters that had been remanded no longer relevant and did not address them further in the Remand Results.3 See RR at 3. Commerce again insisted that applying partial AFA to Borusan was proper. See id. at 7-8, 19-28. Lastly, Commerce adjusted the Osmaniye Parcel benchmark. Id. at 3. The parties argue for further remand, as follows.

I

The domestic industry representatives, Maverick Tube Corporation ("Maverick") and United States Steel Corporation ("U.S. Steel"), argue that the Remand Results' analysis of market distortion is not adequately explained. Their arguments may be summarized as putting the onus on the Government of Turkey ("GOT") for the state of the record, which "precluded" Commerce from finding the Turkish HRS market distorted, because the GOT did not provide data on Erdemir's and Isdemir's share of HRS production and consumption in Turkey. The domestic industry thus argues Commerce erred in not applying AFA.

Restating parts of the Remand Results, U.S. Steel argues "there is no question that the GOT failed to cooperate to the best of its ability by failing to provide the information requested by Commerce regarding the HRS market in Turkey." U.S. Steel Cmts at 5-6. Maverick also criticizes Commerce for accepting "without scrutiny or explanation" the GOT's statement that "confidentiality requirements" related to Turkey's European Union relationship and businesses precluded submitting documentation underlying the GOT's National Restructuring Plan, and Maverick insinuates that the GOT did not treat that documentation as confidential "when they formed the basis of [the GOT's] position paper"or distinguish information in these documents from the types of information regularly submitted as confidential under the protection of an administrative protective order in Commerce's investigations. Maverick Cmts at 8.

Regarding the averment that Commerce was not "direct[ed] to reassess the GOT's failure to provide HRS production data[ ] and on that basis presume as adverse facts available that the HRS market is distorted", Maverick Cmts at 4, quoting RR at 31, Maverick first notes that this is true only insofar as the remand orders did not direct Commerce to reconsider the record in any particular manner or to reach any particular conclusion, which is correct, 4 and that Commerce was also requested "to explain those circumstances where 'substantial portion of the market' results in minimal distortion and where it results in substantial or significant distortion and explain its reasoning on its categorization of the matter at bar and the record evidence that supports it", id., quoting Borusan, 61 F.Supp.3d at 1330. Maverick argues the Remand Results attempt this exercise "but fail for the explicit reason that the GOT did not provide necessary information despite Commerce's repeated requests." Id., referencing RR at 14.

The court does not discern where in the Remand Results that exercise is attempted. Be that as it may, Commerce obviously casts doubt on the GOT's responsiveness by calling into question whether the GOT was actually in possession of the kind of production and consumption data requested or could mandate its procurement, and Maverick and U.S. Steel go further, arguing that the GOT actually was in possession. However, the...

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