United States Steel Corp. v. United States, 050516 USCIT, 14-00263

Docket Nº:14-00263
Opinion Judge:CLAIRE R. KELLY, JUDGE.
Party Name:UNITED STATES STEEL CORPORATION ET AL., Plaintiff and Consolidated Plaintiffs, and MAVERICK TUBE CORPORATION ET AL., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and MAVERICK TUBE CORPORATION ET AL., Defendant-Intervenors. Slip Op. 16-44
Attorney:Jeffrey David Gerrish and Jamieson L. Greer, Skadden Arps Slate Meagher & Flom, LLP, of Washington, DC, argued for plaintiff and consolidated defendant-intervenor United States Steel Corporation. With them on the brief was Robert E. Lighthizer. Lizbeth R. Levinson, Kutak Rock LLP, of Washington, ...
Judge Panel:Before: Claire R. Kelly, Judge.
Case Date:May 05, 2016
Court:Court of International Trade
 
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UNITED STATES STEEL CORPORATION ET AL., Plaintiff and Consolidated Plaintiffs, and MAVERICK TUBE CORPORATION ET AL., Plaintiff-Intervenors,

v.

UNITED STATES, Defendant, and MAVERICK TUBE CORPORATION ET AL., Defendant-Intervenors.

No. 14-00263

Slip Op. 16-44

Court of Appeals of International Trade

May 5, 2016

[Sustaining the U.S. Department of Commerce's final determination in the antidumping duty investigation of certain oil country tubular goods from India in part and remanding in part.]

Jeffrey David Gerrish and Jamieson L. Greer, Skadden Arps Slate Meagher & Flom, LLP, of Washington, DC, argued for plaintiff and consolidated defendant-intervenor United States Steel Corporation. With them on the brief was Robert E. Lighthizer.

Lizbeth R. Levinson, Kutak Rock LLP, of Washington, DC, argued for consolidated plaintiffs GVN Fuels Limited, Maharashtra Seamless Limited, and Jindal Pipes Limited. With her on the brief was Ronald M. Wisla.

Alan Hayden Price, Wiley Rein, LLP, of Washington, DC, for plaintiff-intervenors Maverick Tube Corporation and Boomerang Tube LLC. With him on the brief was Robert Edward DeFrancesco, III.

Roger Brian Schagrin, Schagrin Associates, of Washington, DC, for plaintiff-intervenors and defendant-intervenors Boomerang Tube LLC, Energex Tube, Tejas Tubular Products, TMK IPSCO, Vallourec Star, L.P., and Welded Tube USA Inc. With him on the brief was John Winthrop Bohn, and Paul Wright Jameson.

Justin Reinhart Miller, Senior Trial Counsel, International Trade Field Office, Civil Division, U.S. Department of Justice, of New York, NY, argued for 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 Washington, DC. Of counsel on the brief was David P. Lyons, Office of the Chief Counsel for Trade Compliance and Enforcement, U.S. Department of Commerce of Washington, DC.

Before: Claire R. Kelly, Judge.

OPINION AND ORDER

CLAIRE R. KELLY, JUDGE.

This consolidated action comes before the court on USCIT Rule 56.2 motions for judgment on the agency record, challenging the Department of Commerce's ("Department" or "Commerce") final determination in the antidumping duty ("ADD") investigation of imports of certain oil country tubular goods ("OCTG") from India for the period of July 1, 2012 through June 30, 2013. See Certain Oil Country Tubular Goods From India, 79 Fed. Reg. 41, 981 (Dep't Commerce July 18, 2014) (final determination of sales at less than fair value and final negative determination of critical circumstances) ("Final Determination"); see also Issues and Decision Memorandum for Final Affirmative Determination in the Less than Fair Value Investigation of Certain Oil Country Tubular Goods from India, A-533-857, (Jul. 10, 2014), available at http://ia.ita.doc.gov/frn/summary/india/2014-16868-1.pdf (last visited April 17, 2016) ("Final Decision Memo").

United States Steel Corporation ("U.S. Steel") commenced this action pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2012).1 The court consolidated U.S. Steel's challenge with an action filed by GVN Fuels Limited ("GVN"), an individual exporter of OCTG, Maharashtra Seamless Limited ("MSL") and Jindal Pipes Limited, ("JPL"), individual producers of OCTG (collectively "GVN Plaintiffs"). See Order, Jan. 21, 2015, ECF No. 25. U.S. Steel, Consolidated Plaintiffs GVN Plaintiffs, and Plaintiff-Intervenors Maverick Tube Corporation ("Maverick") filed motions for judgment on the agency record pursuant to USCIT Rule 56.2. See Mot. Pl. United States Steel for J. Agency R. Under Rule 56.2, Mar. 24, 2015, ECF No. 34; Consolidated Pls.' Rule 56.2 Mot. J. Agency R., Mar. 23, 2015, ECF No. 32; Mot. Pl.-Intervenor Maverick Tube Corporation J. Agency R., Mar. 23, 2015, ECF No. 30 ("Maverick Mot.").

BACKGROUND

On July 29, 2013, in response to a petition filed by U.S. Steel and other petitioners, including Maverick, Commerce initiated a less-than-fair-value ("LTFV") investigation of OCTG from India. See Certain Oil Country Tubular Goods from India, the Republic of Korea, the Republic of the Philippines, Saudi Arabia, Taiwan, Thailand, the Republic of Turkey, Ukraine, and the Socialist Republic of Vietnam, 78 Fed. Reg. 45, 505 (Dep't Commerce Jul. 29, 2013) (initiation of ADD investigations). On August 26, 2013, Commerce selected GVN and Jindal SAW as mandatory respondents for examination in its LTFV investigation. See Antidumping Duty Investigation of Certain Oil Country Tubular Goods from India: Respondent Selection at 5, PD 57, bar code 3151642-01 (Aug. 26, 2013).2

On February 18, 2014, Commerce issued its preliminary determination. See Certain Oil Country Tubular Goods From India, 79 Fed. Reg. 10, 493 (Dep't Commerce Feb. 25, 2014) (preliminary determination of sales at less than fair value, preliminary affirmative determination of critical circumstances, in part, postponement of final determination) ("Prelim. Results"); see also Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Oil Country Tubular Goods from India, A-533-857, (Feb. 14, 2014), available at http://ia.ita.doc.gov/frn/summary/india/2014-04106-1.pdf (last visited April 17, 2016) ("Prelim. Decision Memo"). Commerce preliminarily determined that certain OCTG from India "are being, or are likely to be, sold in the United States at [LTFV]." Prelim. Determination, 79 Fed. Reg. at 10, 493. Commerce preliminarily granted GVN a duty drawback for exports through the Advance License Program ("ALP") offered through the Indian government. Id. at 14. Commerce applied the mixed alternative methodology of its differential pricing analysis (i.e., average-to-transaction ("A-T") methodology to Jindal SAW's U.S. sales passing the Cohen's d test) to calculate the weighted-average dumping margins for Jindal SAW and calculated GVN's weighted-average dumping margin using the average-to-average ("A-A") methodology for all sales. See Prelim. Decision Memo at 12. As a result, Commerce preliminarily assigned weighted-average dumping margins of 55.29% to Jindal SAW, 0.00% to GVN, MSL, and JPL, and an all others rate of 55.29%. See Prelim. Determination, 79 Fed. Reg. at 10, 494.

In its final determination, issued July 11, 2014, Commerce continued to grant GVN its requested duty drawback under the ALP. See Final Decision Memo at 15. Commerce had relied upon GVN's submitted cost of production ("COP") data in its preliminary determination, but in its final determination Commerce assigned GVN's N/L-80 grade sales of OCTG the highest costs associated with L-80 grade products because cost data for N/L-80 products was missing from GVN's cost database and Commerce's practice is to assign costs of products meeting the strictest performance requirements where such cost information is not reported by a respondent. See id. at 30. Commerce continued to apply the mixed alternative methodology to calculate the weighted-average dumping margin for Jindal SAW and the A-A methodology to all of GVN's sales in its final results. See Final Decision Memo at 12; see also Final Determination, 79 Fed. Reg. at 41, 981. Therefore, Commerce assigned a weighted average dumping margin of 9.91% to Jindal SAW, 2.05% to GVN, MSL, and JPL, and an all others rate of 5.79%. See Final Determination 79 Fed. Reg. at 41, 982.

U.S. Steel challenges Commerce's determination: (1) to apply the ratio test within its differential pricing analysis, Br. Pl. United States Steel Corporation Supp. Mot. J. Agency R. Confidential Version 65–74, ECF No. 31, Mar. 23, 2015 ("U.S. Steel Br."); (2) that Jindal SAW was not affiliated with certain suppliers, id. at 15–31; (3) to use Jindal SAW's reported yield losses rather than partially applying adverse facts available ("AFA") to those costs, 3 id. at 31–39; (4) to grant GVN a duty drawback adjustment, id. at 39–44; (5) to collapse GVN with affiliated producers MSL and JPL, id. at 45–56; and (6) that MSL and JPL's home market sales of OCTG only included one level of trade. Id. at 56–65. Maverick adopts U.S. Steel's arguments. Maverick Mot. 1. GVN Plaintiffs challenge what they characterize as Commerce's apparent application of AFA to fill gaps in its reporting of COP for dual grade merchandise as contrary to law. Mem. P. & A. Supp. Consolidated Pls.' Rule 56.2 Mot. J. Agency R. 10–17, Mar. 23, 2015, ECF No. 32-1 ("GVN Plaintiffs Br."). Defendant, United States ("Defendant"), responds that the court should deny the motions of Plaintiff and Consolidated Plaintiffs and sustain Commerce's Final Results in full. See Def.'s Corrected Resp. Opp. Pls.' and Pl.-Intervenors' Mots. J. Administrative R. Proprietary Version 2, Sep. 30, 2015, ECF No. 58 ("Def.'s Resp. Br."). In addition, U.S. Steel filed a response, as defendant-intervenor, in opposition to the motion of GVN Plaintiffs. See Mem. United States Steel Corporation Opp. Mot. J. Agency R. Filed By Pls. GVN Fuels Limited, Maharashtra Seamless Limited, and Jindal Pipes Limited Confidential Version, Sep. 21, 2015, ECF No. 49 ("U.S. Steel Resp. Br.").

For the reasons that follow, the court sustains Commerce's determinations: (1) granting GVN a duty drawback adjustment under the advance license export program operated by the Indian government; (2) collapsing GVN with MSL and JPL, its affiliated producers; and (3) finding that all of MSL and JPL's home market sales occurred within the same level of trade. However, the court remands Commerce's determination with respect to its differential pricing analysis, specifically Commerce's application and explanation of its ratio test in this case, for further explanation and consideration. Further, the court remands Commerce's determinations for...

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