Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. v. United States

Case: 22-1502 Document: 19 Page: 1 Filed: 08/26/2022

NOTE: This order is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

BORUSAN MANNESMANN BORU SANAYI VE
TICARET A.S.,
Plaintiff-Appellee

AMERICAN CAST IRON PIPE COMPANY, BERG
STEEL PIPE CORP., BERG SPIRAL PIPE CORP.,
DURA-BOND INDUSTRIES, STUPP
CORPORATION, AMERICAN LINE PIPE
PRODUCERS ASSOCIATION, GREENS BAYOU
PIPE MILL, LP, JSW STEEL (USA) INC., SKYLINE
STEEL, TRINITY PRODUCTS LLC, WELSPUN
TUBULAR LLC,
Plaintiffs-Appellants

v.

UNITED STATES,
Defendant
______________________

2022-1502
______________________

Appeal from the United States Court of International
Trade in Nos. 1:19-cv-00056-JAR and 1:19-cv-00080-JAR,
Senior Judge Jane A. Restani.
______________________

ON MOTION
______________________
Case: 22-1502 Document: 19 Page: 2 Filed: 08/26/2022

2 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

Before LOURIE, CHEN, and STARK, Circuit Judges.
PER CURIAM.
ORDER
Borusan Mannesmann Boru Sanayi ve Ticaret A.S.
moves for summary affirmance of the judgment of the
United States Court of International Trade (CIT). Appel-
lants oppose the motion. Borusan replies.
This is the second time this antidumping duty investi-
gation on imports of Borusan’s welding pipes has been be-
fore the court. See Borusan Mannesmann Boru Sanayi ve
Ticaret A.S. v. Am. Cast Iron Pipe Co., 5 F.4th 1367, 1377
(Fed. Cir. 2021) (sustaining the Department of Commerce’s
original post-sale price adjustment determination). Fol-
lowing our mandate and remand, Commerce recalculated
Borusan’s estimated dumping margin without adjustment
for a cost-based particular market situation (PMS), which
resulted in a zero-dumping margin finding.
Appellants filed comments in opposition to those final
results at the CIT, arguing that Commerce had erred in not
making a PMS adjustment and that the applicable statutes
allowed for a PMS adjustment where the sales-below-cost
test is utilized. The CIT rejected that argument. Appel-
lants then filed this appeal. Their docketing statement re-
flects just one issue on appeal: Whether “Commerce has the
authority to make an adjustment to reported costs of pro-
duction based on a finding of a Particular Market Situation
for purposes of the sales-below-cost test.” ECF No. 7 at 2. *

* The only other issue Appellants raised before the
CIT was the argument that the court should not enter a
favorable judgment to Borusan on an issue that Commerce
declined to examine after finding it would not alter the
dumping margin. The CIT sided with Appellants, finding
that it did not need to address that issue.
Case: 22-1502 Document: 19 Page: 3 Filed: 08/26/2022

BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US 3

We agree with Borusan that summary affirmance is
appropriate here because the merits of the parties’ posi-
tions are so clear that “no substantial question regarding
the outcome of the appeal exists.” Joshua v. United States,
17 F.3d 378, 380 (Fed. Cir. 1994) (citation omitted). This
court in Hyundai Steel Co. v. United States, 19 F.4th 1346,
1348 (Fed. Cir. 2021), squarely held that “the 2015 amend-
ments to the antidumping statute do not authorize Com-
merce to use the existence of a PMS as a basis for adjusting
a respondent’s costs of production to determine whether a
respondent has made home market sales below cost.”
While recognizing Hyundai Steel could potentially re-
solve this case, Appellants had opposed summary affir-
mance on the ground that Hyundai Steel was not final,
prompting this court to hold this motion in abeyance. But
since that time, this court’s mandate in Hyundai Steel is-
sued, and no party sought review of that decision at the
Supreme Court. In response to our order on how to pro-
ceed, Appellants now briefly attempt a new argument, that
this case and Hyundai Steel “have a much different factual
posture that merits consideration,” as “the instant case is
an appeal of an original investigation, which determines
the very existence of an antidumping duty order estab-
lished by the Commerce Department, as opposed to an ap-
peal of an administrative review that merely decreased the
applicable dumping margins under an existing order, as in
Hyundai.” ECF No. 18 at 2. But they fail to provide any
basis for how that could result in a different outcome.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The CIT’s judgment is sum-
marily affirmed.
Case: 22-1502 Document: 19 Page: 4 Filed: 08/26/2022

4 BORUSAN MANNESMANN BORU SANAYI VE TICARET A.S. v. US

(2) Each side shall bear its own costs.
FOR THE COURT

August 26, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court