Tosçelik Profil ve Sac Endüstrisi A.S. v. United States , 2020 CIT 105 ( 2020 )

Slip Op. 20-105
UNITED STATES COURT OF INTERNATIONAL TRADE
TOSÇELIK PROFIL VE SAC
ENDÜSTRISI A.Ş.,
Plaintiff,
and
ZEKELMAN INDUSTRIES,
Consolidated Plaintiff, Before: Jennifer Choe-Groves, Judge
Consol. Court No. 17-00018
v.
UNITED STATES,
Defendant,
and
ZEKELMAN INDUSTRIES,
Defendant-Intervenor.
OPINION
[Sustaining the U.S. Department of Commerce’s third remand results.]
Dated: July 28, 2020
David L. Simon, Law Office of David L. Simon, of Washington, D.C., for Plaintiff Tosçelik
Profil ve Sac Endüstrisi A.Ş.
Elizabeth A. Speck, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for Defendant United States. With her on the briefs
were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Franklin E.
White, Jr., Assistant Director. Of counsel was David W. Richardson, Senior Counsel, Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of
Washington, D.C.
Consol. Court No. 17-00018 Page 2
Choe-Groves, Judge: This action arises out of the final results of the administrative
review of welded carbon steel standard pipe and tube products from Turkey. See Welded
Carbon Steel Standard Pipe and Tube Products from Turkey, 81 Fed. Reg. 92,785 (Dep’t
Commerce Dec. 20, 2016) (final results of antidumping duty administrative review and final
determination of no shipments; 2014–2015), as amended, 82 Fed. Reg. 11,002 (Dep’t Commerce
Feb. 17, 2017) (amended final results of antidumping duty administrative review; 2014–2015).
Before the court are the Final Results of Redetermination Pursuant to Third Court Remand, Mar.
16, 2020, ECF No. 96-1 (“Third Remand Results”). For the reasons discussed below, the court
sustains the Third Remand Results.
BACKGROUND
The court presumes familiarity with the facts and procedural history of this action.
Tosçelik Profil ve Sac Endüstrisi A.Ş. v. United States, 42 CIT __, 321 F. Supp. 3d 1270 (2018)
(“Tosçelik I”); Tosçelik Profil ve Sac Endüstrisi A.Ş. v. United States, 43 CIT __, 375 F. Supp.
3d 1312 (2019) (“Tosçelik II”); Tosçelik Profil ve Sac Endüstrisi A.Ş. v. United States, 43 CIT
__, 415 F. Supp. 3d 1395 (2019) (“Tosçelik III”).
In Tosçelik I, the court remanded to Commerce for reconsideration of Plaintiff Tosçelik’s
duty drawback adjustment and the circumstance of sale adjustment as to warehousing expenses.
Tosçelik I at 1281. Following the first remand, Commerce recalculated Tosçelik’s duty
drawback adjustment under respectful protest and provided an explanation for Tosçelik’s
warehousing circumstance of sale adjustment. Final Results of Redetermination Pursuant to
Court Remand, Oct. 4, 2018, ECF No. 61-1, 1–2. In Tosçelik II, the court remanded
Commerce’s modified calculation of Tosçelik’s duty drawback adjustment, but sustained
Commerce’s circumstance of sale adjustment for warehousing expenses. Tosçelik II at 1317.
Consol. Court No. 17-00018 Page 3
Following the second remand, under respectful protest, Commerce made a per-unit adjustment to
U.S. price in the full amount of the per-unit duty drawback granted on export as claimed by
Tosçelik and an additional circumstance of sale adjustment. Final Results of Redetermination
Pursuant to Second Court Remand, May 30, 2019, ECF No. 77-1, 1–2. In Tosçelik III, the court
remanded Commerce’s circumstance of sale adjustment because Commerce negated the statutory
duty drawback adjustment and incorrectly treated the duty drawback as a direct selling expense.
Tosçelik III at 1401. The duty drawback adjustment was sustained. Id.
In the Third Remand Results, under respectful protest, Commerce granted Tosçelik a
duty drawback adjustment as claimed and reported by Tosçelik in its U.S. sales data, added an
imputed cost for import duties to the cost of production, and made no circumstance of sale
adjustment. Third Remand Results at 5. Defendant United States and Tosçelik requested that
the court sustain the Third Remand Results. Comments of Pl. Tosçelik Profil ve Sac Endüstrisi
A.Ş. in Supp. of Final Results of Redetermination Pursuant to Remand, Slip Op. 19-166 (CIT
December 18, 2019), May 13, 2020, ECF No. 98; Def.’s Comments in Supp. of the Final Results
of Redetermination Pursuant to Ct. Remand, May 14, 2020, ECF No. 99. No party filed
comments opposing the Third Remand Results.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C.
§ 1581(c). The court shall hold unlawful any determination, finding, or conclusion found to be
unsupported by substantial evidence on the record, or otherwise not in accordance with the law.
19 U.S.C. § 1516a(b)(1)(B)(i). The results of a redetermination pursuant to court remand are
reviewed also for compliance with the court’s remand order. See ABB Inc. v. United States, 42
CIT __, __, 355 F. Supp. 3d 1206, 1211 (2018).
Consol. Court No. 17-00018 Page 4
DISCUSSION
Commerce’s Third Remand Results are consistent with the court’s prior opinions and
orders in Tosçelik I, Tosçelik II, and Tosçelik III. Commerce has, under respectful protest,
granted Tosçelik a duty drawback adjustment without making a circumstance of sale adjustment.
Third Remand Results at 5. The weighted-average dumping margin for Tosçelik has changed
from 3.33 percent to 0.00 percent. Id. Because the court concludes that the Third Remand
Results comply with the court’s remand order, the court sustains the Third Remand Results.
CONCLUSION
The court sustains the Third Remand Results.
Judgment will be entered accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: July 28, 2020
New York, New York