United States Court of International Trade

Slip Op. 21-174

Before the Court in Borusan Mannesmann Boru Sanayi ve Ticaret A.S., et. al., v. United States, et. al., Consol. Court No. 19-00056, Slip Op. 21-174 (December 28, 2021) was Plaintiffs’ challenge against Commerce’s remand determinations and resulting antidumping duty orders regarding Large Diameter Welded Pipe (“LDWP”) from Turkey. Id. at 2. American Line Pipe Producers Association (“ALPPA”) argued that Commerce erred by removing the adjustment for a particular market situation (“PMS”). Id. at 5. ALPPA asserted 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 cost of production {“COP”) analysis. Id. Defendant-intervenor, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. (“BMB”), and the government, however, requested that “the court sustain Commerce’s second remand redetermination as to the PMS adjustment”. Id. at 6. BMB requested that the court sustain the second redetermination, and it also urged the court to find in its favor regarding “outstanding issues,” including its U.S. date of sale. Id. at 8. BMB argued 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. BMB asserted 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 asserted that “the court should not grant relief in BMB’s favor.” Id. For the following reasons, the court sustained Commerce’s second remand redetermination. Id. at 3.

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). Id. at 5. 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). Id. at 8. In this case, the court found that “Commerce’s removal of an adjustment for a PMS is not contrary to law”. Id. at 5. Here, the court stated that “no adjustment for a PMS is permitted for the sales-below-cost test.” Id. at 6. The court explained that it “may lack jurisdiction over the issue because ALPPA did not raise the argument on appeal when it had the opportunity to do so.” Id. at 7.

However, “[a]ssuming the court has jurisdiction over the issue, it sustains Commerce’s removal of the adjustment for a PMS.” Id. “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.” Id. at 8. “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.” Id. Thus, the court explained that Commerce did not need to calculate an adjustment if BMB had already secured the “maximum possible relief” when the margin rate was already de minimis. Id. “Commerce correctly assumed that the court would not require useless acts.” Id. As such, the court sustained Commerce’s second remand redetermination in full. Id. at 9.