CIT Upholds Remand Dropping PMS Adjustment, Declares Date-of-Sale Issue Moot in AD Case

The Commerce Department can't make a particular market situation adjustment to an antidumping duty respondent's cost of production in the sales-below-cost test, the Court of International Trade again said, sustaining the agency's remand results dropping the adjustment. In a Dec. 28 opinion, Judge Jane Restani also said that the issue of the date of the sale in the AD investigation was irrelevant since it wouldn't change the result of the investigation, which was a de minimis rate for respondent Borusan Mannesmann.

The opinion comes in a case over the antidumping duty investigation of large diameter welded pipe from Turkey. The primary issue of the case, until Restani's opinion, was a post-sale price adjustment. The Federal Circuit had reversed CIT's finding that Borusan was entitled to a full post-sale adjustment for reimbursements it received from its partners in a joint venture agreement for damages related to late delivery penalties, instead siding with Commerce's finding that Borusan was only entitled to a one-third adjustment (see 2107200038). CIT then remanded this case to Commerce to comply with this decision, also instructing Commerce to come to a conclusion on when Borusan's date of sale was (see 2108270051). In its remand, the agency reverted to the one-third price adjustment but didn't make a decision on the date of the sale since the resulting dumping rate was zero percent, making the date of the sale irrelevant.

In the opinion, while not devoting time to it in the "discussion" section of the opinion, Restani sustained the reversion to the partial post-sale adjustment. Further, the court, as it has done numerous times, held that Commerce can't make a PMS adjustment in the sales-below-cost test. The Federal Circuit has even affirmed this ruling, the opinion pointed out.

The only issue remaining concerned the date of the sale -- an issue that the antidumping review petitioner, the American Line Pipe Producers Association, wanted addressed (see 2111230069). The Justice Department said that there was no need, since after Commerce made the partial post-sale adjustment and dropped the PMS adjustment, Borusan had a de minimis rate, making the issue of the date of sale irrelevant (see 2112090028). Restani sided with the government, also declaring the issue as moot, ultimately sustaining Commerce's results.

(Borusan Mannesmann Boru Sanayi ve Ticaret v. U.S., Slip Op. 21-174, CIT Consol. #19-00056, dated 12/28/21, Judge Jane Restani. Attorneys: Donald Cameron of Morris Manning for plaintiff Borusan; Timothy Brightbill of Wiley Rein for defendant-intervenors; Robert Kiepura for defendant U.S. government)