MAVERICK TUBE CORPORATION, UNITED STATES STEEL CORPORATION, Plaintiffs-Cross-Appellants
UNITED STATES, Defendant-Appellee BOOMERANG TUBE LLC, ENERGEX TUBE, TMK IPSCO, TEJAS TUBULAR PRODUCTS, VALLOUREC STAR, L.P., WELDED TUBE USA INC., Plaintiffs
CAYIROVA BORU SANAYI VE TICARET A.S., TOSCELIK PROFIL VE SAC ENDUSTRISI A.S., Defendants-Appellees BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S., BORUSAN ISTIKBAL TICARET, Defendants-Appellants
from the United States Court of International Trade in Nos.
1:14-cv-00214-RKM, 1:14-cv-00229-RKM, 1:14-cv-00233-RKM,
1:14-cv-00240-RKM, Senior Judge R. Kenton Musgrave.
E. DeFrancesco, III, Wiley Rein, LLP, Washington, DC, argued
for plaintiff-cross-appellant Maverick Tube Corporation. Also
represented by Alan H. Price, Stephanie Manaker Bell, Tessa
V. Capeloto, Laura El-Sabaawi, Jeffrey Owen Frank, Derick
Holt, Usha Neelakantan, Adam Milan Teslik.
Rule, Quinn Emanuel Urquhart & Sullivan, LLP, Washington,
DC, argued for plaintiff-cross-appellant United States Steel
Corporation. Also represented by Debbie Leilani Shon,
Jonathan Gordon Cooper, Jon David Corey, Philip Charles
Hardeep Kaur Josan, International Trade Field Office,
Commercial Litigation Branch, Civil Division, United States
Department of Justice, New York, NY, argued for
defendant-appellee United States. Also represented by
Benjamin C. Mizer, Jeanne E. Davidson, Claudia Burke,
Washington, DC; Scott Daniel McBride, Office of the Chief
Counsel for Import Administration, United States Department
of Commerce, Washington, DC.
B. Lehnardt, Antidumping Defense Group, LLC, Washington, DC,
argued for defendants-appellees Cayirova Boru Sanayi Ve
Ticaret A.S., Toscelik Profil Ve Sac Endustrisi A.S. Also
represented by David L. Simon, Law Offices of David L. Simon,
Mendoza, Morris, Manning & Martin, LLP, Washington, DC,
argued for defendants-appellants Bo-rusan Mannesmann Boru
Sanayi Ve Ticaret A.S., Bo- rusan Istikbal Ticaret. Also
represented by Donald Cameron, Jr., Mary Hodgins, Brady
Mills, R. Will Planert, Sarah Suzanne Sprinkle.
Prost, Chief Judge, Lourie and Taranto, Circuit Judges.
Lourie, Circuit Judge.
Mannesmann Boru Sanayi Ve Ticaret A.S. and Borusan Istikbal
Ticaret (together, "Borusan") appeal from the final
judgment of the Court of International Trade ("the Trade
Court") sustaining the determination of the U.S.
Department of Commerce ("Commerce") on remand to
apply adverse facts available ("AFA") after Borusan
did not report input purchases for two of its steel mills.
See Maverick Tube Corp. v. United States, No.
14-00229, 2016 WL 703575 (Ct. Int'l Trade Feb. 22, 2016)
("Borusan II"); Final Results of Remand
Determination, Maverick Tube Corp. v. United States,
No. 14-00229, ECF No. 92, slip op. at 19-28 (Ct. Int'l
Trade Aug. 31, 2015) ("Remand Results").
Maverick Tube Corporation and U.S. Steel (together,
"Maverick") cross-appeal, arguing that the Trade
Court should not have vacated Commerce's original finding
that the Turkish market for hot-rolled steel
("HRS") was distorted by government involvement.
See Borusan Mannesmann Boru Sanai Ve Ticaret v. United
States, 61 F.Supp.3d 1306, 1327-31 (Ct. Int'l Trade
2015) ("Borusan I"); Certain Oil
Country Tubular Goods From the Republic of Turkey, 79
Fed. Reg. 41, 964 (Dep't of Commerce July 18, 2014)
("Original Results"). In the alternative,
Maverick challenges the Trade Court's sustaining of
Commerce's refusal to apply AFA to the government of
Turkey ("GOT") for failing to provide data on the
Turkish market for HRS or to adequately explain its lack of
data. See Borusan II, 2016 WL 703575, at *2-3. For
the reasons that follow, we affirm.
2, 2013, certain domestic producers of oil country tubular
goods ("OCTG") filed a petition with Commerce
alleging that GOT was providing countervaila-ble subsidies to
domestic exporters. Borusan I, 61 F.Supp.3d. at
1310-11. Commerce subsequently instituted a countervailing
duty investigation. Certain Oil Country Tubular Goods
from India and Turkey, 78 Fed. Reg. 45, 502 (Dep't
of Commerce July 29, 2013). Although myriad arguments were
presented to Commerce and the Trade Court prior to the
present appeal, we recount only those facts relevant to the
institution, Commerce selected Borusan and GOT as mandatory
respondents. Because HRS is an input used in the manufacture
of OCTG, Commerce then issued each a questionnaire relating
to the provision of HRS in Turkey. As Borusan and GOT's
responses implicate different issues, we provide further
factual and procedural background relating to each in turn.
initial questionnaire, Commerce asked Borusan to report its
purchases of HRS during the period of investigation
("POI"), "regardless of whether [Borusan] used
the [HRS] to produce [OCTG]" during that period. Joint
Appendix ("J.A.") 1645. Borusan responded that it
had three production facilities during the POI: Gemlik,
Halka-li, and Izmit. J.A. 1645. During the POI, Borusan
averred that (1) only Gemlik produced subject OCTG; and (2)
no HRS purchased for the other facilities was transferred to
Gemlik. J.A. 1645. Borusan only provided data for the Gemlik
location because only that location "could have
benefitted from subsidies attributable to the production or
sale of the OCTG subject merchandise." J.A. 1645.
noted that it had difficulties compiling that information.
Specifically, Borusan contended that (1) the process of
gathering the requested data was "extremely time
consuming and burdensome, " resulting in "well over
300 printed pages"; and (2) gathering the requested data
required Borusan to "extract the data from two different
data systems." J.A. 1645 & n.2. Accordingly, Borusan
argued that requiring data for the other two locations
"would impose great burdens on [Borusan] for no
purpose." J.A. 1645.
saw the matter differently. In a supplemental questionnaire,
Commerce noted that Borusan "did not . . . report HRS
purchases for [Borusan]'s two other mills, " despite
the original questionnaire asking for that information. J.A.
4393. Thus, Commerce asked Borusan to "please report all
of [Borusan]'s purchases of HRS, including its purchases
for the Halkali and Izmit mills." J.A. 4393. Commerce
did indicate, however, that if Bo-rusan was "unable to
provide this information, " it should "explain in
detail why [Borusan could] not provide this information and
the efforts [Borusan] made to provide it to [Commerce]."
response, Borusan did not provide data for the Halkali and
Izmit locations. Instead, Borusan further detailed its
difficulties in compiling data for the Gemlik location.
Borusan reiterated its statements from its initial response,
explained that it had to separate expenses manually, and that
the process for Gemlik alone "took over two weeks of
preparation by numerous members of [Borusan]'s
staff." J.A. 5975-76. Thus, Borusan asked Commerce to
"take into consideration the significant burdens
associated with gathering" information relating to the
Halkali and Izmit mills. J.A. 5976.
then attempted to invoke 19 U.S.C. § 1677m(c)(1) and
(2), J.A. 5976-77, which provide that if an interested party
notifies Commerce promptly after receiving a request that it
is "unable to submit the information requested in the
requested form and manner, together with a full explanation
and suggested alternative forms, " then Commerce
"shall consider the ability of the interested
party" and "may modify such requirements to the
extent necessary to avoid imposing an unreasonable burden on
that party." Borusan explained that it had informed
Commerce of the burdens associated with producing the
requested information, and expanded on those burdens in
response to the supplemental questionnaire. J.A. 5977.
Borusan indicated that it believed that the Gemlik data was
sufficient because, in its view, the Gem-lik data allowed
Commerce to capture "any possible benefit from
[Borusan]'s . . . purchases that may have benefitted the
production or sale" of the subject OCTG. J.A. 5977-78.
Nevertheless, Borusan indicated "its intention to
fully cooperate" with Commerce's investigation and
"to respond to all reasonable requests for
information." J.A. 5978. If ...