Maverick Tube Corporation v. United States , 2015 CIT 59 ( 2015 )

Slip Op. 15 - 59
UNITED STATES COURT OF INTERNATIONAL TRADE
:
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, : Before: R. Kenton Musgrave, Senior Judge
:
v. : Consol. Court No. 14-00229
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. :
:
OPINION AND ORDER
[On USCIT Rule 56.2 motions, countervailing duty investigation of hot-rolled steel from Turkey
remanded to International Trade Administration, U.S. Department of Commerce.]
Dated: June 15, 2015
Consol. Court No. 14-00229 Page 2
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.1
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.
Musgrave, Senior Judge: This consolidated matter encompasses three of the four
lawsuits initiated by domestic industry petitioners and Turkish respondents all separately challenging
aspects of 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”), a final affirmative countervailing duty
(“CVD”) investigation conducted by the International Trade Administration, U.S. Department of
Commerce (“Commerce”) covering the investigatory period January 1, 2012, through December 31,
2012 (“POI”). The focus of the proceeding at bar, in which Maverick Tube Corporation
(“Maverick”) and United States Steel Corporation (“U.S. Steel”), U.S. domestic industry petitioners,
1
The other captioned plaintiff-intervenors did not participate in litigation.
Consol. Court No. 14-00229 Page 3
are nominally captioned as plaintiff and plaintiff-intervenor respectively, is the alleged Turkish state
provision of hot-rolled steel (“HRS”) for less than adequate remuneration (“LTAR”) in the
production of oil country tubular goods (“OCTG”). See 19 U.S.C. §1677(5).
The fourth suit, unconsolidated, was filed against the United States by Borusan
Mannesmann Boru Sanayi ve Ticaret A.S. and Borusan Istikbal Ticaret (together “Borusan”).
Intervening in this action after it was consolidated, Borusan sides with the other Turkish respondents
Toscelik Profil ve Sac Endustrisi A.S. and Cayirova Boru Sanayi ve Ticaret A.S. (together,
“Toscelik”), all nominally captioned as defendant-intervenors, in support of Toscelik’s motion for
judgment. Borusan’s own case is already before Commerce on remand,2 with results of
redetermination due July 17, 2015. Familiarity with that case is here presumed, as it sets forth the
procedural and certain substantive background pertinent to this matter. Jurisdiction is also here
invoked pursuant to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C.
§1516a(a)(2)(B)(i), and 28 U.S.C. §1581(c). And substantive briefing on the parties’ separate
motions for judgment pursuant to USCIT Rule 56.2 has proceeded according to schedule.3
2
See generally Court No. 14-00214; see also Borusan Mannesmann Boru Sanayi ve Ticaret
A.S. v. United States, Slip Op. 15-36 (Apr. 22, 2015) (“Borusan”). Borusan pressed ahead in that
proceeding with a “motion to expedite briefing and consideration.” Court No. 14-00214, ECF No.
7. Filing of a joint proposed scheduling order, to which the defendant had consented, mooted acting
on the motion to expedite briefing. Id., ECF No. 11. Motions to intervene in that action were filed
thereafter. The motions were duly acted upon in the order received, see id., ECF Nos. 30-33, except
that issuance of slip opinion 15-36 in due course obviated acting upon the motion for expedited
consideration (and its proposed order’s peculiarity, i.e., having the court order itself to consider the
case on an expedited basis). Emphasized here is that the Borusan court has only acted pursuant to
a consented-to motion for scheduling and not affirmatively acted upon a motion to expedite.
3
For which the parties are all to be commended. After response briefs to those motions were
filed, the defendant renewed a motion to consolidate Borusan with this matter, arguing that further
(continued...)
Consol. Court No. 14-00229 Page 4
I. Maverick’s and U.S. Steel’s Motions for Judgment
Maverick’s Rule 56.2 motion challenges the exclusion of certain “tier-two”
benchmark data provided by it for the record, and also the exclusion of import duties from certain
prices used for that benchmark. U.S. Steel’s briefing on its Rule 56.2 motion adopts Maverick’s
arguments as briefed.
A. Exclusion of Certain Benchmark Data
Commerce’s regulations set forth a hierarchy, or “tiers”, governing how it will
determine whether adequate remuneration was paid for a good or service in question. See 19 C.F.R.
§351.511. Tier one compares the “government price” paid by a respondent “to a market-determined
price for the good or service resulting from actual transactions in the country in question.” Id.,
§351.511(a)(2)(I). If Commerce concludes that there is no useable market-determined price with
which to make such comparisons, it resorts to tier two, a comparison of “the government price to a
world market price where it is reasonable to conclude that such price would be available to
purchasers in the country in question.” Id., §351.511(a)(2)(ii). The status quo of this matter is
rejection of tier-one pricing and reliance upon a tier-two benchmark. See IDM at 38-39.
During the investigation, Maverick placed world market HRS benchmark prices on
the record, including monthly export prices of HRS from countries around the globe derived from
the Global Trade Atlas (“GTA”), transaction price indices from MEPS (International) Ltd., prices
3
(...continued)
consolidation would conserve resources and avoid duplication. In Borusan, the defendant has
likewise procedurally moved, for the same reasons, and it also moved to stay further proceedings on
that case. The motion to stay was denied, Court No. 14-00214, ECF No. 81, but the motions to
consolidate have been held in abeyance.
Consol. Court No. 14-00229 Page 5
from a source named “CRU,” and a price series from Steel Business Briefing (SSB). See IDM at 25;
see also PDoc 166 at 9-12. Maverick contests Commerce’s rejection of these data and argues
Commerce should have used instead a simple average of all available data except for imports to and
exports from Turkey. Maverick Br. at 7. See IDM at 46-48.
Complaining that Commerce did not average all of the prices made available to it,
Maverick argues three general points: (1) Commerce has stated in several previous cases that its goal
is to “derive the most robust HRS benchmark possible” and thus it has used the largest number of
data points as possible; (2) the data sources supplied by Maverick have been used by Commerce in
other administrative proceedings and there was “no evidence of, for example, export barriers, import
barriers, or other government distortions in the countries in question that might support a conclusion
that export prices would differ from any domestic prices represented by the data”; and (3) the
relevant regulation states that “where there is more than one commercially available world market
price, the Secretary will average such prices to the extent practicable.” See 19 C.F.R.
§351.511(a)(2)(ii).
Commerce will calculate a simple average “when the datasets on the record [are] not
reported in a uniform manner.” See, e.g., Utility Scale Wind Towers from the People’s Republic of
China, 77 Fed. Reg. 75978 (Dec. 26, 2012) (final affirmative CVD deter.) and accompanying issues
and decision memorandum at cmt. 15. Commerce determined that the GTA data did not present
such a circumstance, see IDM at 48, and Maverick does not contest the determination that the GTA
data are reported on a uniform basis. Maverick’s contention for simple averaging, thus, depends
upon the validity of the administrative disregard of its proffered MEPS, CRU and SBB data.
Consol. Court No. 14-00229 Page 6
Commerce agreed with Maverick that it has interpreted 19 C.F.R §351.511(a)(2)(ii)
“within the context of our goal to derive the most robust benchmarks possible; thus we have sought
to include as many data points as possible.” IDM at 42. However, Commerce also recognized that
the regulation states that a tier-two world market benchmark price can only be used if it is
“reasonable to conclude that such price[s] would be available to purchasers in the country in
question”. Cf. id. with 19 C.F.R §351.511(a)(2)(ii). Similar to Commerce’s rejection of the SBB
data that were considered in Borusan, Commerce explained in the Final Determination that it would
not use these “prices because record information indicated that these were domestic prices (not
export prices) in specific countries”, noting further that petitioners “did not contend that the MEPS,
CRU or SBB prices represent export prices.” IDM at 47. Commerce explained that “[r]egardless
of the Department’s inclusion of these price series in past investigations, the information about the
MEPS, CRU and SBB price series for HRS on the record of this investigation indicates that these
are domestic prices in countries other than Turkey” and that this determination was consistent with
its determination in Certain Kitchen Appliance Shelving and Racks from the People’s Republic of
China, 77 Fed. Reg. 21744 (Apr. 11, 2012) (final CVD determ.) (in accompanying issues and
decision memorandum at cmt. 5), in which it had excluded domestic prices from the input
benchmark for wire rod because the petitioners had provided no evidence that the prices were
representative of prices that would be available to purchasers in the PRC. See id. at 48.
Commerce here states that regardless of the quality of the data or the existence or
nonexistence of trade barriers, domestic prices in countries other than Turkey are “not prices of [hot
rolled steel] that would be available to purchasers in Turkey.” Def’s Resp. at 37, quoting IDM at 25
Consol. Court No. 14-00229 Page 7
(Def’s bracketing). Consistent with Borusan, the court remains unpersuaded by Maverick’s
arguments that Commerce’s rejection of MEPS, CRU and SBB data was not supported by substantial
evidence or not in accordance with law; Maverick is essentially asking the court to displace
Commerce’s “fairly conflicting views” on domestic price availability, which would be inappropriate.
See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“Universal Camera”).
B. Non-Inclusion of Certain Import Duties
In its preliminary determination, Commerce included import duties in the benchmark
price based on the GTA export prices from certain countries. See PDoc 327 at 10 n.80; PDoc 328
at 9 n.71. For the Final Determination, Commerce concluded the record showed that imports of
HRS into Turkey from certain countries are subject to a zero duty rate; therefore Commerce excluded
import duties from the benchmark price for export prices from these countries. IDM at 46. The
record evidence Commerce relied upon included: (1) the Turkish government’s response that hot
rolled steel coils were imported into Turkey under Harmonized Tariff Schedule (“HTS”) number
7208; (2) Borusan’s response that import duties do not apply to imports from European Union
countries because they are subject to a zero duty rate; and (3) sections of the Turkish HTS for
number 7208 showing a zero duty rate for imports of hot rolled steel into Turkey from European
Union countries and certain other countries. See PDoc 179 at 4-5; PDoc 75 at 13; PDoc 73 at Ex.
10. Maverick argues the record evidence was inconsistent and incomplete, and therefore Commerce
should not have excluded import duties from the export prices from those countries when it
determined the benchmark for HRS. Maverick Br. at 10-12.
Consol. Court No. 14-00229 Page 8
Commerce responds that Maverick is now arguing for the first time that the evidence
on the record is unreliable, faulting Commerce for relying on a tariff schedule that is partially
untranslated and claiming Commerce must have made a “typographical error” when it cited to pages
four and five of the Turkish government’s questionnaire response because “the portion of the
Government of Turkey’s questionnaire response that Commerce cited does not address hot-rolled
steel import duties at all.” Maverick Br. at 11. Commerce contends Maverick failed to exhaust
administrative remedies on this issue both because Maverick could have placed rebuttal information
on the record after obtaining Borusan’s original questionnaire response and because it also had the
opportunity to respond to the exact arguments on this point raised by both Toscelik and Borusan in
its administrative rebuttal brief but did not do so.
The court tends to take a strict approach to the doctrine of administrative exhaustion
in accordance with its statutory mandate. See, e.g., SeAH Steel Corp. v. United States, 35 CIT ___,
764 F. Supp. 2d 1322, 1325 (2011), referencing Jiaxing Brother Fastener Co., Ltd. v. United States,
34 CIT 1455, 1465-67, 751 F. Supp. 2d 1345, 1355-57 (2010); see also 28 U.S.C. § 2637(d) (in trade
cases the court “shall, where appropriate, require the exhaustion of administrative remedies”). There
appears no reason to relax that requirement here. Pages 36 to 39 of Maverick’s administrative
rebuttal brief before Commerce are devoted almost entirely to arguing against adjusting the HRS
benchmark to account for VAT and Borusan’s “individual firm experience” in ocean and inland
freight shipment. The inclusion of import duties, as consistent with Commerce’s regulations and
practice, is adverted to only perfunctorily on page 39 of that brief. By contrast, Maverick would here
set forth in greater detail its reasoning on why the duties in this instance should not have been
Consol. Court No. 14-00229 Page 9
excluded. The court is not persuaded that Maverick could not “seek administrative remedy” by
fleshing out its argument of the issue in its rebuttal brief before Commerce rather than here, and
therefore finds that the issue has not been administratively exhausted.4
II. Toscelik’s Motion for Judgment
In the Final Determination Commerce determined a subsidy rate of 1.67 percent for
Toscelik. Toscelik’s 56.2 motion contests Commerce’s determination that the Turkish HRS market
is distorted by the presence of Eregli Demir ve Celik Fabrikalari T.A.S. (“Erdemir”) and its
subsidiary Iskenderun Iron & Steel Works Co. (“Isdemir”) (collectively, “Erdemir”), its
determination to reject as a tier-one benchmark Toscelik’s HRS purchases from private foreign
suppliers, its tier-two benchmark, its determination that Erdemir is a government authority, and the
determination that the industries receiving the alleged HRS subsidy were “limited” in number.
Slip opinion 15-36 was issued after initial briefs were filed in this matter. Because
the above claims are essentially the same as those addressed in that opinion, albeit as
administratively determined with respect to Toscelik, Toscelik’s reply brief states that they will defer
4
Moreover, Maverick’s substantive arguments on the issue again appear to move for
substituting a fairly conflicting view of the evidence, which the court cannot do. See Universal
Camera, 340 U.S. at 488. Commerce cited specifically to the Turkish government’s declaration that
HRS is imported under HTS 7208. IDM at 46, n.283. Commerce here explains that all of the key
sections of the Turkish HTS are translated into English, Borusan identified which countries in
English were covered by which sections, and the various sub-classifications under HTS 7208 are
clearly discernible. Def’s Resp. at 43, referencing PDoc 73 at Ex. 10. Maverick claims that because
heading 7225 is also circled on the Turkish HTS on the record and because Borusan supplied only
selected tariff line sections in its submission, the court must conclude that the evidence is
inconsistent and incomplete, Maverick Br. at 12, but as Commerce argues there is no record evidence
that calls into question the validity of the Turkish HTS supplied by Borusan and the validity of the
Turkish government’s response on this issue, and Maverick cites to none. See Def’s Resp. 43-44.
Consol. Court No. 14-00229 Page 10
to the court’s prior decision on those issues. This opinion, therefore and hereby, adopts and adheres
to the reasoning of slip opinion 15-36 with respect to Toscelik’s HRS-for-LTAR claims for purposes
of remand, with one difference that was pressed more extensively in Toscelik’s 56.2 brief than in
Borusan’s case: As it considers on remand the issue of whether the Turkish HRS market was
distorted during the POI, Commerce is hereby specifically requested to address more fully and
directly the incongruity of Toscelik’s evidence that it argues shows the prices it paid to Erdemir were
higher than the prices it paid for imported coils and higher than its own cost of production, as
summarized in Table 1 of Toscelik’s confidential brief on its Rule 56.2 motion (referencing
Toscelik’s Questionnaire Response at Exhibit 22, CDoc 83), and explain how Erdemir’s less-than-
majority share of the HRS market gives it the power to dictate below-market import prices to major
steel mills in Europe, Russia, and Ukraine.
With respect to the inclusion of import duties, VAT, and inland and ocean freight in
the tier-two benchmark, slip opinion 15-36 concluded that Commerce’s treatment of the import
duties and VAT was lawful, in accordance with Essar Steel Ltd. v. United States, 678 F.3d 1268
(Fed. Cir. 2012), but remanded on the inland and ocean freight issues. With respect to all such items,
however, Toscelik makes the point that the benchmark of the Final Determination is a monthly price
nearly twice that of Toscelik’s own cost of production, of purchase prices from international
suppliers, and of domestic U.S. ex-works prices, Toscelik Br. at 27 & 41, and that “[i]t is simply not
reasonable or lawful for Commerce to construct a benchmark for a commodity product that is so
inconsistent with commercial reality” as it does not comply with Commerce’s legal obligation to
calculate margins as accurately as possible in accordance with cases such as Rhone Poulenc, Inc. v.
Consol. Court No. 14-00229 Page 11
United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990). Id. at 27. See also Slip Op. 15-36 at 44. The
court agrees and hereby requests Commerce, in reconsidering this matter on remand consistent with
Borusan, to demonstrate the reasonableness of any tier two benchmark redetermination in relation
to an approximation of commercial reality.
Toscelik also challenges Commerce’s valuation for benchmarking purposes of a land
parcel that Toscelik was granted in 2008 for LTAR from the Osmaniye Organized Industrial Zone
Authority, a state agency. In the Final Determination, Commerce explained its approach to this
valuation as follows
We are relying on the land benchmark data used in CWP Turkey 2011 AR [i.e.,
administrative review] and CWP Turkey 2010 AR.[5] Specifically, we used as our
benchmark publicly available information concerning industrial land prices in Turkey
for purposes of calculating a comparable commercial benchmark price for land
available in Turkey.
IDM at 58.
The administrative valuation of this parcel was the subject of Toscelik’s separate
lawsuit in Court No. 13-00371. Relying upon the principle and purpose of amortization itself, that
litigation concluded that the average useful life (“AUL”) schedule, once established, may not be
altered in mid-stream, and upon remand Commerce, inter alia, restored the benchmark for the year
2008 parcel as originally calculated in CWP Turkey 2010. See Toscelik Profil ve Sac Endustrisi A.S.
5
CWP Turkey 2011 and CWP Turkey 2010 are the results of the 2011 and 2010
administrative reviews of the CVD order on steel pipe from Turkey, published respectively as
Circular Welded Carbon Steel Pipes and Tubes From Turkey, 78 Fed. Reg. 64916 (Oct. 30, 2013)
(final CVD admin. rev.) and accompanying issues and decision memorandum, and Circular Welded
Carbon Steel Pipes and Tubes from Turkey, 77 Fed. Reg. 46713 (Aug. 6, 2012) (final CVD admin.
rev.) and accompanying issues and decision memorandum.
Consol. Court No. 14-00229 Page 12
v. United States, 38 CIT ___, Slip Op. 14-126 (Oct. 29, 2014), remand results sustained, 39 CIT ___,
Slip Op. 15-28 (Apr. 1, 2015). Toscelik would apply that same principle here.
Commerce argues that because the matter at bar involves a different program
investigation (inter alia, HRS-for-LTAR in production of OCTG), the concerns expressed in
Toscelik’s earlier litigation are not inherent here, that there is no statutory or regulatory authority
requiring that it use the same benchmark “forevermore, in all future proceedings in which that
subsidy is analyzed”, that it is reasonable to reconsider the valuation of the same parcel of land in
different proceedings, and that the results of CWP Turkey 2010 and CWP Turkey 2011 are not
binding on Commerce in the present proceeding. Def’s Resp. at 51. However, as Toscelik points
out in reply,
[i]n the present Final Determination, Commerce explicitly relied on the 2010 and
2011 CWP reviews for its land valuation; Commerce did not recalculate anything,
but brought into the present record the 2010 and 2011 final results (the 2011 remand
results were not available at the time Commerce made the final determination
herein). Thus, Commerce explicitly pinned the present case to the records and
determinations on the 2010 and 2011 CWP reviews.
Toscelik Reply at 3. The difficulty of whether Commerce could recalculate the benchmarks ab initio
in the present case is an issue that need not be reached, for Commerce has merely adopted the results
of CWP Turkey 2010 and 2011, and thus when CWP 2011 turned out to be unlawful and was
corrected on remand, the status quo of the posture of that result applies directly to the present case.
For that reason, this issue must be remanded for correction.
Consol. Court No. 14-00229 Page 13
Conclusion
Aspects of this matter must be remanded consistent with Borusan and the foregoing.
The court will issue a separate remand order after further consultations with the parties. As to the
substantive matters covered by this opinion:
It is so ordered.
/s/ R. Kenton Musgrave
R. Kenton Musgrave, Senior Judge
Dated: June 15, 2015
New York, New York