Slip Op. 07 – 107 

UNITED STATES COURT OF INTERNATIONAL TRADE 

ALLIED TUBE & CONDUIT CORP., 

IPSCO TUBULARS INC., AND 

WHEATLAND TUBE COMPANY, 

 Before: Richard W. Goldberg, 

 Plaintiffs, Senior Judge 

 v. Court No. 06-00285 

UNITED STATES, PUBLIC VERSION

 Defendant, 

 and 

TOSÇELIK PROFIL VE SAC 

ENDUSTRISI A.S., 

 Defendant- 

 Intervenor. 

OPINION

[Commerce’s final new shipper review determination is remanded 

for further consideration and explanation of the commercial 

reasonableness of Defendant-Intervenor’s single U.S. sale.] 

Dated: July 9, 2007 

Schagrin Associates (Roger B. Schagrin, Brian E. McGill, and 

Michael James Brown) for Plaintiffs Allied Tube & Conduit Corp., 

IPSCO Tubulars Inc., and Wheatland Tube Company. 

Peter D. Keisler, Assistant Attorney General; Jeanne E. 

Davidson, Director, Patricia M. McCarthy, Assistant Director, 

Commercial Litigation Branch, Civil Division, U.S. Department of 

Justice (David S. Silverbrand); Office of the Chief Counsel for 

Import Administration, U.S. Department of Commerce (Jennifer I. 

Johnson), Of Counsel, for Defendant United States. 

Law Offices of David L. Simon (David L. Simon) for DefendantIntervenor Tosçelik Profil ve Sac Endustrisi A.S. 
Court No. 06 – 00285 Page 2 

GOLDBERG, Senior Judge: On May 31, 2005, Tosçelik Profil ve Sac 

Endustrisi A.S. and its affiliated trading company Tosyali Dis 

Ticaret A.S. (collectively, “Tosçelik”) requested that the U.S. 

Department of Commerce (“Commerce”) conduct a new shipper review 

based on a single U.S. sale during the period of review from May 

1, 2004 through April 30, 2005 (“POR”). Commerce found that the 

single U.S. sale was bona fide, and subsequently determined that 

a zero percent antidumping duty margin existed. Certain Welded 

Carbon Steel Pipe and Tube from Turkey, 71 Fed. Reg. 43444, 

43445 (Dep’t Commerce Aug. 1, 2006) (final results of new 

shipper review). Allied Tube and Conduit Corporation, IPSCO 

Tubulars, Inc., and Wheatland Tube Company (collectively, 

“Allied Tube”) have brought this action to challenge Commerce’s 

determination that Tosçelik’s single U.S. sale during the POR 

was bona fide. For the reasons that follow, the Court remands 

the issue of whether Tosçelik’s single U.S. shipment was a bona 

fide transaction. 

I. STANDARD OF REVIEW

A court shall hold unlawful Commerce’s final determination 

in an antidumping administrative review if it is “unsupported by 

substantial evidence on the record, or otherwise not in 

accordance with the law . . . .” 19 U.S.C. § 1516a(b)(1)(B)(i) 

(2000). Substantial evidence is “‘such relevant evidence as a 
Court No. 06 – 00285 Page 3 

reasonable mind might accept as adequate to support a 

conclusion.’” Nippon Steel Corp. v. United States, 337 F.3d 

1373, 1379 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)). “Even if it is possible to draw two 

inconsistent conclusions from evidence in the record, such a 

possibility does not prevent Commerce’s determination from being 

supported by substantial evidence.” Am. Silicon Techs. v. 

United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001). To 

determine if substantial evidence exists, the Court reviews the 

record as a whole, including evidence that supports as well as 

evidence that “fairly detracts from the substantiality of the 

evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 

1562 (Fed. Cir. 1984). 

II. DISCUSSION

A. New Shipper Review and the Bona Fide Sale Test 

On May 15, 1986, Commerce published an antidumping duty 

order on imports of welded carbon steel pipe and tube from 

Turkey. See Welded Carbon Steel Standard Pipe and Tube Products 

from Turkey, 51 Fed. Reg. 17784 (Dep’t Commerce May 15, 1986) 

(final determination). The order imposes an “all others” 

antidumping duty rate of 14.74%, which applies to Turkish 

producers and exporters that have not had their antidumping duty 

rate determined in an investigation or review. Id. If a 
Court No. 06 – 00285 Page 4 

producer or exporter did not export merchandise that was the 

subject of an antidumping duty order during a previous 

investigation period, it may request a new shipper review. See

19 U.S.C. § 1675(a)(2)(B) (2000).1 During the course of a new 

shipper review, Commerce endeavors to establish an individual 

dumping margin and antidumping duty rate for the new shipper. 

This process allows the new shipper to demonstrate that the “all 

others” rate should not apply to its entries. On May 31, 2005, 

Tosçelik timely requested a new shipper review based on a single 

sale to the United States. 

 

1

 A new shipper review may be requested pursuant to the following 

requirements: 

If the administering authority receives a request from 

an exporter or producer of the subject merchandise 

establishing that—(I) such exporter or producer did 

not export the merchandise that was the subject of an 

antidumping duty or countervailing duty order to the 

United States (or, in the case of a regional industry, 

did not export the subject merchandise for sale in the 

region concerned) during the period of investigation, 

and (II) such exporter or producer is not affiliated 

(within the meaning of section 1677(33) of this title) 

with any exporter or producer who exported the subject 

merchandise to the United States (or in the case of a 

regional industry, who exported the subject 

merchandise for sale in the region concerned) during 

that period, the administering authority shall conduct 

a review under this subsection to establish an 

individual weighted average dumping margin or an 

individual countervailing duty rate (as the case may 

be) for such exporter or producer. 

19 U.S.C. § 1675(a)(2)(B)(i) (2000); see also 19 C.F.R. 

§ 351.214 (2006).
Court No. 06 – 00285 Page 5 

When a new shipper review involves only a single U.S. sale, 

it is Commerce’s practice to determine if that sale is a bona 

fide transaction. See Freshwater Crawfish Tail Meat from the 

People’s Republic of China, 68 Fed. Reg. 1439, 1440 (Dep’t 

Commerce Jan. 10, 2003) (rescission of new shipper review); 

Fresh Garlic from the People’s Republic of China, 67 Fed. Reg. 

11283, 11284 (Dep’t Commerce Mar. 13, 2002) (rescission of new 

shipper review). A sale is not bona fide when it is 

“commercially unreasonable” or “atypical of normal business 

practices.” Tianjin Tiancheng Pharmaceutical Co. v. United 

States, 29 CIT __, __, 366 F. Supp. 2d 1246, 1249-50 (2005); see

also Windmill Int’l Pte., Ltd. v. United States, 26 CIT 221, 

230, 193 F. Supp. 2d 1303, 1313 (2002). Commerce makes this 

determination so that a producer does not “unfairly benefit from 

an atypical sale to obtain a lower dumping margin than the 

producer’s usual commercial practice would dictate.” Tianjin, 

29 CIT at __, 366 F. Supp. 2d at 1250. A single sale is not 

inherently commercially unreasonable, but “it will be carefully 

scrutinized to ensure that new shippers do not unfairly benefit 

from unrepresentative sales.” Id. at __, 366 F. Supp. 2d at 

1263. 

Commerce looks at the totality of the circumstances to 

determine whether a particular sale is bona fide. See Hebei New 
Court No. 06 – 00285 Page 6 

Donghua Amino Acid Co. v. United States, 29 CIT __, __, 374 F. 

Supp. 2d 1333, 1338 (2005). In the present case, Commerce 

initially issued a Commercial Reasonableness Memorandum (“CRM”) 

which set forth its basis for finding that Tosçelik’s U.S. sale 

was commercially reasonable under the totality of the 

circumstances. See CRM, A-489-501, NSR 5/1/04-4/30/05 (Apr. 24, 

2006); Pl.’s App. 5A-B. In the CRM, Commerce considered three 

factors: (1) the price and quantity of the U.S. sale; (2) the 

sales process; and (3) freight expenses. Commerce subsequently 

issued the preliminary results of the new shipper review on May 

3, 2006, and found that Tosçelik’s sale had no dumping margin. 

Certain Welded Carbon Steel Pipe and Tube from Turkey, 71 Fed. 

Reg. 26043, 26047 (Dep’t Commerce May 3, 2006) (preliminary 

results). Commerce subsequently adopted the same position in 

its final determination. Certain Welded Carbon Steel Pipe and 

Tube from Turkey, 71 Fed. Reg. at 43445. In that determination, 

Commerce referred to its Issues and Decision Memorandum (“IDM”), 

which found Tosçelik’s single U.S. sale to be commercially 

reasonable, and therefore bona fide. IDM, A-489-501, POR 

5/1/04-4/30/05 (Aug. 1, 2006), available at

http://ia.ita.doc.gov/frn/summary/turkey/E6-12372-1.pdf. 

Allied Tube challenges Commerce’s determination that 

Tosçelik’s transaction is bona fide. Specifically, it claims 
Court No. 06 – 00285 Page 7 

that the price, quantity and freight expense of the sale 

indicate that the transaction is not commercially reasonable. 

B. Commerce’s Determination That the Price of Tosçelik’s U.S. 

Sale Is Commercially Reasonable Is Not Supported by 

Substantial Evidence 

i. Overview of Commerce’s Methodology Comparing the Unit 

Value of Tosçelik’s Sale to the Average Unit Value of 

Other Turkish Exporters

Commerce calculated the average unit value (“AUV”) per 

metric ton (“MT”) for all U.S. imports of welded steel pipe and 

tube from Turkey during the POR, and found that the unit value 

of Tosçelik’s sale is about [ ] the AUV of all imports from 

Turkey.2

 Commerce did not primarily rely on a comparison between 

the AUV of all imports from Turkey and the unit value of 

Tosçelik’s sale. Instead, Commerce obtained data from U.S. 

Customs and Border Protection (“Customs”) that listed the AUV of 

 

2

 In the chart provided by Commerce, Tosçelik’s unit value is [ ] 

per MT. CRM Attach. 1 (Confidential). Commerce reached this 

value by dividing the “entered value” of Tosçelik’s single U.S. 

sale [ ] by the “theoretical quantity” of the shipment [ ]. 

Whereas the chart lists the [ ] per MT figure, the analysis in 

the CRM refers to the AUV of Tosçelik’s sale as [ ] per MT. The 

[ ] per MT figure is reached by dividing the “total value” of 

the sale [ ] by the “actual quantity” [ ]. Presumably, this 

includes the transportation costs associated with the sale. It 

is unclear why Commerce includes the [ ] figure in the chart, 

but discusses the [ ] figure in its analysis. The Court’s 

determination that Tosçelik’s sale is [ ] than the AUV of all 

Turkish imports is based on the [ ] figure. The discrepancy 

rises to [ ] when the [ ] figure is used. The precise 

calculation does not affect the disposition of this case at this 

stage in the proceedings, but may be highly relevant on remand. 
Court No. 06 – 00285 Page 8 

each Turkish exporter during the POR. The unit value of 

Tosçelik’s single sale fell within the range of the other 

Turkish exporters’ AUVs ([ ] per MT). Commerce concluded that 

because Tosçelik’s sale is “comfortably within the range of 

other commercial transactions . . . [there is] no reason to 

suspect that [it] is not a bona fide commercial transaction.” 

CRM 4. 

The “range” Commerce refers to is derived from a chart 

attached to the CRM. The chart is reproduced here:3

[ REDACTED ] 

CRM Attach. 1 (Confidential). Each row represents data from a 

specific Turkish exporter. The far left column lists the total 

quantity of welded steel pipe and tube shipped from each 

exporter.4 The next column lists the total value of the 

shipments, followed by the AUV for each exporter. Tosçelik’s 

shipment is represented by the company name “Tosyali Dis Ticaret 

A.S.,” which is Tosçelik’s affiliated trading company. The unit 

value of Tosçelik’s sale, [ ] per MT, does indeed fall within 

the range of AUVs listed by exporter. 

 

3

 The names of some exporters have been shortened for formatting 

purposes. 

4

 The chart encompasses steel pipe and tube classified under the 

same Harmonized Tariff Schedule of the United States (“HTSUS”) 

classification as Tosçelik’s U.S. shipment. 
Court No. 06 – 00285 Page 9 

Allied Tube believes that the range of AUVs used by 

Commerce in the above chart includes highly aberrational data. 

Specifically, the range of data used by Commerce includes a 

small quantity of sales [ ] imported at relatively high prices.5

 

Allied Tube argues that a single sale with a unit value in the [ 

] percentile is atypical of normal business practices and 

commercially unreasonable. If the top [ ] of sales by quantity 

is excluded, the remaining [ ] of all imports by quantity fall 

within an AUV range between [ ] per MT. Tosçelik’s sale, at [ ] 

per MT, does not fall within this range. Thus, Allied Tube 

claims the price of Tosçelik’s sale is commercially 

unreasonable. 

ii. Commerce’s “Range” Methodology Including Allegedly 

Distortive Entries Does Not Reasonably Support Its 

Determination That Tosçelik’s Sale Is Commercially 

Reasonable

The Court must now determine whether Commerce’s “range” 

methodology, which includes the allegedly distortive entries, is 

reasonable and supported by substantial evidence. Commerce has 

the discretion to choose whatever methodology it deems 

appropriate, as long as it is reasonable and its conclusions are 

supported by substantial evidence. See Federal-Mogul Corp. v. 

 

5

 The [ ] of imports by quantity that Allied Tube argues should 

be excluded from Commerce’s analysis are those imported by [ ]. 

Pl.’s Mot. J. Agency R. 12 n.7. These exporters each have an 

AUV of [ ] per MT or higher. 
Court No. 06 – 00285 Page 10 

United States, 18 CIT 785, 807-08, 862 F. Supp. 384, 405 (1994); 

see also Windmill, 26 CIT at 230, 193 F. Supp. 2d at 1312 

(“Given Commerce's discretion in employing a methodology to 

exclude sales from the United States price that are 

unrepresentative or distortive . . . the Court must determine 

whether Commerce’s actions in this case were reasonable.”). 

Allied Tube believes that Commerce acted contrary to its 

own established practice “of using AUVs derived only after 

excluding aberrant data for its analysis” to determine the 

commercial reasonableness of U.S. sales in new shipper reviews. 

Pl.’s Mot. J. Agency R. 13. Commerce does frequently choose to 

exclude aberrational data in its antidumping duty 

determinations. See, e.g., Hebei, 29 CIT at __, 374 F. Supp. 2d 

at 1340 (approving Commerce’s exclusion of “clearly 

aberrational” data in a new shipper review); Luoyang Bearing 

Corp. (Group) v. United States, 29 CIT __, __, 358 F. Supp. 2d 

1296, 1299 (2005) (in determining a surrogate value for China, 

Commerce excluded price data from countries with steel imports 

of less than seven MTs); Shanghai Foreign Trade Enters. Co. v. 

United States, 28 CIT __, __, 318 F. Supp. 2d 1339, 1350 (2004) 

(explaining that when calculating surrogate values for nonmarket economies, it is Commerce’s practice to exclude 

aberrational data); FAG U.K. Ltd. v. United States, 20 CIT 1277, 
Court No. 06 – 00285 Page 11 

1282, 945 F. Supp. 260, 265 (1996) (permitting Commerce to 

exclude “certain sales which are clearly atypical” in an 

antidumping administrative review). Commerce excludes aberrant 

data because a “[f]air (apples to apples) comparison is the goal 

of the price comparisons required by the antidumping laws . . . 

.” Am. Permac, Inc. v. United States, 16 CIT 41, 42, 783 F. 

Supp. 1421, 1423 (1992). 

While Commerce often excludes potentially aberrational data 

in its antidumping determinations, it is not always required to 

do so. In Corus Staal BV v. United States, the plaintiff, a 

domestic party, challenged Commerce’s decision to include sales 

of defective merchandise in its calculation of the U.S. price. 

27 CIT 388, 404-05, 259 F. Supp. 2d 1253, 1267-68 (2003). The 

plaintiff argued that because transactions involving defective 

merchandise are not in the “ordinary course of trade,” they must 

be excluded from the analysis. The Court disagreed, and stated 

that unlike the definition of normal value,6

 the definition of 

U.S. price contains no requirement that Commerce exclude sales 

that are arguably outside of the ordinary course of trade. Id.

at 406, 259 F. Supp. 2d at 1269. 

 

6

 The definition of “normal value” is “the price at which the 

foreign like product is first sold . . . for consumption in the 

exporting country, in the usual commercial quantities and in the 

ordinary course of trade . . . .” 19 U.S.C. § 1677b(a)(1)(B)(i) 

(2000) (emphasis added). 
Court No. 06 – 00285 Page 12 

Corus Staal is easily distinguishable from the present case 

because the commercial reasonableness test for new shipper 

reviews necessarily implies that the analysis should only 

include prices “in the ordinary course of trade.” Commerce 

cannot reasonably conclude that the price of a new shipper’s 

single sale is commercially reasonable if it is only similar to 

prices that are atypical of the industry. In the present case, 

the “range” methodology can only be deemed reasonable if 

Commerce can explain why the allegedly distortive entries, some 

over [ ] the AUV for the industry, should be included in the 

range of reasonableness. When Commerce’s commercial 

reasonableness determination hinges on comparing the new shipper 

sale price to a range of values, it is crucial to make sure the 

values at both ends of that range are commercially reasonable. 

Commerce has not only failed to explain why its “range” 

methodology is reasonable, but it even suggests that its own 

dataset might be overinclusive and therefore inaccurate. 

Commerce states: 

Given that the [HTSUS] numbers covered by the scope 

include more than subject merchandise, [and] that 

actual products included within any given shipment may 

be different from each other[,] [a] direct comparison 

between shipments should not be viewed as accurate 

price to price comparison. Rather, such data are 

generally reflective of commercial transactions. 
Court No. 06 – 00285 Page 13 

CRM 5 n.3. In other words, the high-priced, small-quantity 

sales included in Commerce’s analysis might be different types 

of merchandise than the standard pipe imported by Tosçelik even 

though they are encompassed in the same HTSUS classification. 

The potential inaccuracy of the dataset further undermines the 

reasonableness of Commerce’s “range” methodology. 

In previous investigations, Commerce stressed the 

importance of comparing the total AUV of all imports to the new 

shipper sale. In Hebei, where Commerce determined that a new 

shipper sale was not bona fide, Commerce viewed the large price 

differential between the new shipper sale and the AUV of all the 

entries of the subject merchandise as significant. See 29 CIT 

at __, 374 F. Supp. 2d at 1336. Specifically, Commerce compared 

the Chinese manufacturer’s U.S. sale price to: 

(1) the weighted AUV of all Chinese entries of the 

subject merchandise during the POR that were 

covered by the antidumping duty order and not 

clearly aberrational based on proprietary data in 

the Customs database; 

(2) the weighted AUV of all Chinese imports of the 

subject merchandise during the POR based on 

public import statistics; and 

(3) the weighted AUV of U.S. imports of the subject 

merchandise from all countries during the POR 

based on publicly available U.S. import data. 

See id. at __, 374 F. Supp. 2d at 1336; see also Tianjin, 29 CIT 

at __, 366 F. Supp. 2d at 1255 (stating that the prices listed 
Court No. 06 – 00285 Page 14 

in four invoices from a single company “do not go as far as the 

AUV data in showing the typical price for Plaintiff’s product”). 

By contrast, in this case, Commerce relied primarily on a 

comparison of Tosçelik’s sale to small import quantities with 

comparatively high per-unit values. Commerce has not persuaded 

the Court that this methodology is reasonable. See Shanghai, 28 

CIT at __, 318 F. Supp. 2d at 1351 (“A Commerce decision to rely 

on potentially aberrational data without explanation and 

contrary to its own practice is not based on substantial 

evidence and cannot be sustained.”). 

In summary, Commerce’s “range” methodology is a shaky 

foundation on which to rest its conclusion that the price of 

Tosçelik’s sale is commercially reasonable. The methodology 

merely shows that the unit value of Tosçelik’s sale is [ ] the 

AUVs of certain other Turkish exporters’ aggregated entries 

under the same HTSUS classification. Given that the unit value 

of Tosçelik’s sale is [ ] the AUVs of the Turkish exporters that 

comprise [ ] of the total U.S. imports of welded carbon steel 

pipe and tube by quantity, Commerce has failed to demonstrate, 

by substantial evidence, that Tosçelik’s price is commercially 

reasonable. As such, this issue is remanded so that Commerce 

may attempt to explain why its methodology is reasonable, or to 

point to other grounds that support its ultimate conclusion that 
Court No. 06 – 00285 Page 15 

Tosçelik’s sale is commercially reasonable. Cf. Luoyang Bearing 

Corp. (Group) v. United States, 28 CIT __, __, 347 F. Supp. 2d 

1326, 1353 (2004) (remanding because Commerce failed to explain 

why it did not address the aberrational import data that the 

plaintiffs believed should be excluded). 

iii. Commerce’s Analysis Excluding Allegedly Distortive 

Entries Does Not Demonstrate That Tosçelik’s Sale Is 

Commercially Reasonable

In response to Allied Tube’s concerns, Commerce explains in 

its final determination that even if the allegedly distortive 

data are excluded, Tosçelik’s sale would still be considered 

commercially reasonable. IDM 5-6. To support this conclusion, 

Commerce states that a disaggregation of import data from major 

Turkish exporters indicates there are “a meaningful number of 

shipments with comparable unit values and quantities.” Id. 6. 

Commerce does not point to any useful shipment-level data to 

demonstrate what it means by a “meaningful” number of shipments 

or “comparable” unit values and quantities. Instead, Commerce 

asserts that “while the average value of each shipment of welded 

pipe and tube during the POR was [ ], the value of individual 

shipments ranged from [ ] to [ ].” CRM 4. Commerce claims that 

because the value of Tosçelik’s single shipment fits within this 

range, it is commercially reasonable. However, this analysis is 

problematic because Commerce only compares the value, but 
Court No. 06 – 00285 Page 16 

ignores the quantity, of each individual shipment. This range 

of values is meaningless if the quantity of each shipment is 

unknown. Instead, Commerce could have disaggregated the import 

data, calculated the shipment unit values, and then compared 

them to the unit value of Tosçelik’s shipment. At present, 

Commerce has not demonstrated by substantial evidence that when 

the allegedly distortive entries are excluded from the analysis, 

Tosçelik’s sale is commercially reasonable.7

 

 

7 Commerce also suggests that Allied Tube did not include all 

relevant figures in its analysis: 

[W]e found [Allied Tube’s] analysis did not include 

the AUV for a certain Turkish manufacturer, which was 

within a reasonable range of Tosçelik’s AUV and higher 

than the threshold AUV identified by petitioner. 

Moreover, the entry for the exporter reported by 

[Customs] was disregarded in petitioner’s analysis 

altogether, despite the fact that the specific 

exporter’s shipment was higher in volume than 

Tosçelik’s U.S. sale. Furthermore, the entered value 

of Tosçelik’s U.S. sale is only slightly higher than 

the entered value of sales made by the specific 

exporter not named by the petitioner, as reported by 

[Customs]. 

IDM 5-6. This explanation is difficult to comprehend because 

the Court is unable to identify the “certain Turkish 

manufacturer” that Allied Tube failed to include in its 

analysis. Allied Tube appears to have accounted for all of the 

exporters listed in the chart accompanying the CRM. See Pl.’s 

Mot. J. Agency R. 12 n.7. Additionally, the Court is unable to 

find an entry that: (1) has an AUV that is higher than “the 

threshold AUV identified by petitioner” (i.e., [ ] per MT), (2) 

has a higher quantity than Tosçelik’s sale, and (3) has an 

entered value that is only slightly lower than Tosçelik’s sale. 

(footnote continued) 
Court No. 06 – 00285 Page 17 

iv. Tosçelik’s U.S. Sale, in Comparison to Its Home Market 

Prices, Does Not Demonstrate That the Sale Is 

Commercially Reasonable

At the suggestion of Allied Tube, Commerce compared 

Tosçelik’s U.S. sale price to its home market prices. Allied 

Tube alleges that the price of Tosçelik’s single U.S. sale was [ 

] than Tosçelik’s average home market sales.8

 If this were true, 

it would support the claim that Tosçelik was artificially 

inflating its U.S. price in order to obtain a favorable 

antidumping duty margin. In response, Commerce states that it 

“used the prices included in [Tosçelik’s home market database] 

and calculated an average [home market price] that is very 

comparable to the AUV of U.S. imports . . . .” 9 IDM 5. 

Notably, Commerce did not directly compare the price of 

Tosçelik’s U.S. sale to its home market sales. Instead 

Commerce found that Tosçelik’s home market sales were comparable 

to the AUV for all U.S. imports. As a result, the usefulness of 

 

Therefore, this explanation is insufficient to support 

Commerce’s finding that the price of Tosçelik’s single U.S. sale 

is commercially reasonable. 

8

 Allied Tube claims that Tosçelik’s U.S. sale ([ ] per MT) was 

priced [ ] than that of the average of Tosçelik’s home market 

sales. Pl.’s Mot. J. Agency R. 11. In fact, the U.S. sale is 

only [ ] than the average home market sale. 

9

 The original language states “U.S. price” instead of “home 

market price.” The Court assumes this is a clerical error, 

because Commerce could not have used Tosçelik’s home market 

price database in order to calculate an average U.S. price.
Court No. 06 – 00285 Page 18 

this analysis is entirely dependent on how Tosçelik’s U.S. sale 

compares to the AUV for all U.S. imports. Because, as discussed 

above, Commerce’s analysis of the AUV of all U.S. imports does 

not demonstrate that Tosçelik’s sale was commercially 

reasonable, Commerce’s analysis of the home market sales 

provides no independent support for its position. 

C. Commerce’s Determination That the Quantity of Tosçelik’s 

U.S. Sale Is Commercially Reasonable Is Supported by 

Substantial Evidence 

Allied Tube claims that there is not substantial evidence 

to support Commerce’s conclusion that the quantity of Tosçelik’s 

U.S. sale is commercially reasonable. In its final 

determination, Commerce found that: 

[The quantity of Tosçelik’s U.S. sale] is not atypical 

of Tosçelik’s normal business practices. 

Specifically, the majority of Tosçelik’s home market 

sales are made with invoices that have a total 

quantity that is less than the sale in question. 

Therefore, we find the quantity of Tosçelik’s one sale 

to the U.S. is comparable to the size of Tosçelik’s 

sales in its home market, and consistent with 

Tosçelik’s business practices in the home market. 

IDM 5. The fact that Tosçelik’s single U.S. sale is of a larger 

quantity than a majority of its home market sales is adequate to 

support the conclusion that the quantity is commercially 

reasonable. Cf. Windmill, 26 CIT at 231, 193 F. Supp. 2d at 

1313 (“[S]ingle sales, even those involving small quantities, 

are not inherently commercially unreasonable and do not 
Court No. 06 – 00285 Page 19 

necessarily involve selling practices atypical of the parties’ 

normal selling practices.”).10

D. Commerce’s Determination That the Freight Charges Included 

in Tosçelik’s U.S. Sale Price Are Commercially Reasonable 

Is Not Supported by Substantial Evidence 

Tosçelik shipped its U.S. sale by container with an 

international freight charge of [ ] per MT.11 Allied Tube points 

out that this freight charge is [ ] the average international 

freight charge for U.S. imports from Turkey that fall under the 

same HTSUS classification category as Tosçelik’s entry. Pl.’s 

Reply Br. 11. Commerce has considered extraordinarily high 

 

10 Allied Tube points out that the average quantity per shipment 

of welded carbon steel pipe and tube from Turkey during the POR 

was more than [ ] the quantity of Tosçelik’s shipment. Pl.’s 

Mot. J. Agency R. 17-18. However, Commerce has demonstrated 

that the quantity of the sale is in line with Tosçelik’s selling 

practices in its home market. The fact that Tosçelik’s sale is 

smaller than the industry average does not render it 

commercially unreasonable if the quantity is typical of 

Tosçelik’s normal business practices. 

11 Initially, Allied Tube claimed that the international freight 

cost of Tosçelik’s sale was [ ] per MT. Pl.’s Mot. J. Agency R. 

18. Allied Tube believed that this figure excluded domestic 

shipping costs. Defendant-Intervenor Tosçelik responded that 

this was a clear misstatement of fact, because the [ ] per MT 

figure does in fact include domestic inland freight. Def.-

Int.’s Resp. Br. 32-33. In its Reply Brief, Allied Tube 

explained that it believed [ ] per MT constituted only the 

international freight cost Tosçelik reported in its 

questionnaire response that “international freight” was [ ] per 

MT. Pl.’s Reply Br. 10-11. Allied Tube corrected its initial 

error, and states that the actual international freight charge 

(excluding domestic inland freight) is [ ] per MT. Id. 11. 
Court No. 06 – 00285 Page 20 

freight costs to be evidence that a sale is not bona fide. See

Windmill, 26 CIT at 231, 193 F. Supp. 2d at 1313. 

To support its finding that Tosçelik’s freight cost is not 

unreasonably high, Commerce states that it “verified Tosçelik’s 

reported freight expenses and found the container shipment to be 

consistent with Tosçelik’s typical business practices.” IDM 6. 

Commerce cites to a Sales Verification Exhibit that shows how 

much Tosçelik paid for the freight cost. See id. n.14. 

Commerce has not adequately explained how this information 

supports the conclusion that Tosçelik’s freight charge in this 

case was consistent with its typical business practices. 

Commerce also suggests that Tosçelik’s freight expenses are 

so high because “Tosçelik’s U.S. sale was shipped by container 

rather than full vessel load and included inland freight 

expenses from the port of Mersin, Turkey.” Id. 6. The fact 

that the shipment was made by container is irrelevant because 

Commerce did not demonstrate that it is commercially reasonable 

to use this method of shipment. Additionally, the [ ] figure 

does not include domestic inland freight in Turkey. Pl.’s Reply 

Br. 11. Even without the additional cost of domestic inland 

freight, the international freight cost of Tosçelik’s sale is [ 

] the industry average. 
Court No. 06 – 00285 Page 21 

Commerce claims that although Tosçelik’s freight charges 

may be higher than average, this fact alone does not render the 

sale commercially unreasonable. In American Silicon

Technologies v. United States, the Court held that a high 

shipping price or unusual mode of shipment does not alone render 

a sale commercially unreasonable. 24 CIT 612, 617-18, 110 F. 

Supp. 2d 992, 997 (2000). In that investigation, Commerce had 

found that although the shipping costs were high, the timing and 

mode of shipment did not indicate the sale was commercially 

unreasonable because the merchandise entered the United States 

“fully six months” prior to the POR and the exporter did not 

request a new shipper review. Silicon Metal from Brazil, 64 

Fed. Reg. 6305, 6317 (Dep’t Commerce Feb. 9, 1999) (final 

results of new shipper review). The Court sanctioned that 

approach. Am. Silicon Techs., 24 CIT at 618, 110 F. Supp. 2d at 

997. By contrast, Tosçelik’s single shipment entered the United 

States on April 28, 2005, only two days before the end of the 

POR. Additionally, Tosçelik requested the new shipper review. 

This record evidence seems to undercut Commerce’s claim that 

“there was no evidence that the freight charge was incurred for 

any reason related to the new shipper review.” Def.’s Resp. 17. 

Both the timing of the sale and Tosçelik’s request for the new 

shipper review indicate otherwise. 
Court No. 06 – 00285 Page 22 

In summary, there is ample record evidence that Tosçelik’s 

freight charges are too high to be commercially reasonable. 

Commerce has failed to present any contradictory evidence that 

amounts to more than unsupported assertions. As a result, 

Commerce’s finding that Tosçelik’s freight charge does not 

indicate that the sale is commercially unreasonable is not 

supported by substantial evidence. 

E. Commerce’s Ultimate Determination That Tosçelik’s Single 

U.S. Sale Is Bona Fide Is Not Supported by Substantial 

Evidence 

The Court must aggregate Commerce’s findings to ultimately 

determine whether there is substantial evidence to support its 

decision that under the totality of the circumstances, 

Tosçelik’s single U.S. sale is bona fide. See Tianjin, 29 CIT 

at __, 366 F. Supp. 2d at 1249-50. As discussed above, 

Commerce has failed to show that substantial evidence supports 

its findings that the price and freight cost of Tosçelik’s sale 

are commercially reasonable. On the other hand, there is 

substantial evidence to support Commerce’s finding that the 

quantity of Tosçelik’s sale is commercially reasonable. The 

only remaining factor Commerce considered is Tosçelik’s “sales 

process.” CRM 5. Commerce reviewed Tosçelik’s home market and 

export selling practices, and found that the U.S. sale “followed 

the same sales process as their other export sales.” CRM 5. 
Court No. 06 – 00285 Page 23 

Allied Tube does not dispute this finding. The fact that 

Tosçelik appears to have followed its normal business practices 

in executing its single U.S. sale is evidence that the sale is 

bona fide. Cf. Windmill, 26 CIT at 231, 193 F. Supp. 2d at 1313 

(holding that purchaser’s failure to follow normal business 

practices is evidence that sale is not bona fide). However, 

“the price factor has significant weight, and cannot necessarily 

be offset by a recitation of other factors by which the sale 

could be considered typical . . . .” Tianjin, 29 CIT at __, 366 

F. Supp. 2d at 1263. Accordingly, under the totality of the 

circumstances, the Court does not find substantial evidence to 

support Commerce’s finding that Tosçelik’s U.S. sale is bona 

fide. 

III. CONCLUSIONS

For the foregoing reasons, the Court remands Commerce’s 

final new shipper review determination. Specifically, Commerce 

must explain, if it is able, why its “range” methodology 

(ranking the AUVs of the aggregate imports, within the same 

HTSUS classification, of each Turkish exporter) is a reasonable 

approach to determining whether the price of Tosçelik’s U.S. 

sale is commercially reasonable. In the course of this 

explanation, Commerce must address why the seemingly distortive 

entries identified by Allied Tube should not be excluded from 
Court No. 06 – 00285 Page 24 

the analysis concerning the price of Tosçelik’s U.S. sale. If 

Commerce is unable to provide such an explanation, it must 

either (1) point to other record evidence that shows whether 

Tosçelik’s sale is a bona fide transaction under the totality of 

the circumstances, or (2) conduct further investigations to 

determine the same. A separate order will be issued 

accordingly. 

 _/s/ Richard W. Goldberg

 Richard W. Goldberg 

 Senior Judge

Date: July 9, 2007 

 New York, New York
UNITED STATES COURT OF INTERNATIONAL TRADE 

ALLIED TUBE & CONDUIT CORP., 

IPSCO TUBULARS INC., AND 

WHEATLAND TUBE COMPANY, 

 Plaintiffs, 

 v. 

UNITED STATES, 

 Defendant, 

 and 

TOSÇELIK PROFIL VE SAC ENDUSTRISI 

A.S., 

 Defendant-

 Intervenor. 

 

 Before: Richard W. Goldberg, 

 Senior Judge 

 

 Court No. 06-00285 

PUBLIC VERSION

 

 

ORDER

 Upon consideration of Plaintiffs’ motion for judgment upon 

the agency record and briefs in support thereof, Defendant’s and 

Defendant-Intervenor’s briefs in opposition thereto, upon all 

other papers and proceedings had herein, and upon due 

deliberation, it is hereby 

ORDERED that Commerce’s final antidumping duty new shipper 

review determination in Certain Welded Carbon Steel Pipe and 

Tube from Turkey, 71 Fed. Reg. 43444 (Aug. 1, 2006) is remanded; 

and it is further 

ORDERED that Commerce explain, if it is able, why its 

“range” methodology (ranking the AUVs of the aggregate imports, 

within the same HTSUS classification, of each Turkish exporter) 

is a reasonable approach to determine whether the price of 

Tosçelik’s U.S. sale is commercially reasonable; and it is 

further 

ORDERED that Commerce address in the course of that 

explanation why the seemingly distortive entries identified by 

Allied Tube should not be excluded from the analysis concerning 

the price of Tosçelik’s U.S. sale; and it is further 
ORDERED that Commerce shall, if it is unable to provide 

such an explanation, point to other record evidence or conduct 

further investigations to determine whether the price of 

Tosçelik’s single U.S. sale is commercially reasonable; and it 

is further 

ORDERED that Commerce shall explain why, in the course of 

comparing the AUV of Tosçelik’s single U.S. sale to other AUV 

data, it refers to a different value in its data chart [ ] than 

in the text of its Commercial Reasonableness Memorandum [ ], and 

it is further 

ORDERED that Commerce shall, if it is able, point to record 

evidence, or, if other record evidence is unavailable, conduct 

further investigations to adequately explain why the freight 

charge associated with Tosçelik’s sale is typical of Tosçelik’s 

business practices, or otherwise commercially reasonable; and it 

is further 

ORDERED that if Commerce is unable to conclude that 

Tosçelik’s sale is a bona fide transaction, the new shipper 

review shall be rescinded; and it is further 

ORDERED that Commerce shall, within sixty (60) days of the 

date of this Order, issue a remand determination in accordance 

with the instructions provided herein; and it is further 

ORDERED that the parties may, within twenty (20) days of 

the date on which Commerce issues its remand determination, 

submit briefs addressing Commerce’s remand determination, not to 

exceed twenty (20) pages in length; and it is further 

ORDERED that the parties may, within fifteen (15) days of 

the date on which briefs addressing Commerce’s remand 

determination are filed, submit response briefs, not to exceed 

fifteen (15) pages in length. 

SO ORDERED. 

 _/s/ Richard W. Goldberg___ 

 Richard W. Goldberg 

 Senior Judge 

Date: July 9, 2007 

 New York, New York