Slip Op. 08 – 41 

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 remand determination is sustained.] 

Dated: April 14, 2008 

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. 

Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne 

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

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

Justice (Maame A.F. Ewusi-Mensah and David S. Silverbrand); 

Office of the Chief Counsel for Import Administration, U.S. 

Department of Commerce (Jennifer I. Johnson and Sapna Sharma), 

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: This case is before the Court 

following remand to the U.S. Department of Commerce 

(“Commerce”). In Allied Tube & Conduit Corp. v. United States, 

31 CIT __, Slip Op. 07-107 (July 9, 2007), familiarity with 

which is presumed, the Court remanded Commerce’s determination 

that Tosçelik Profil ve Sac Endustrisi A.S. (“Tosçelik”)’s 

single U.S. sale was a bona fide transaction. The Court ordered 

Commerce to explain the reasoning behind the methodology it used 

to determine commercial reasonableness. The domestic parties, 

Allied Tube & Conduit Corp., IPSCO Tubulars, Inc., and Wheatland 

Tube Company (collectively “Allied Tube”) urge the Court to 

again remand the matter with instructions to rescind Tosçelik’s 

new shipper review. For the reasons that follow, Commerce’s 

remand determination is sustained in its entirety. 

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 

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, 
Court No. 06 – 00285 Page 3 

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). 

II. DISCUSSION

A. Commercial Reasonableness of the Price of Tosçelik’s Sale 

In its first new shipper review determination,1

 Commerce 

employed a “range” methodology to assess the commercial 

reasonableness of the price of Tosçelik’s sale. See Allied 

Tube, 31 CIT at __, Slip Op. 07-107 at *8. The “range” 

methodology is based on Customs and Border Patrol data of all 

imports of certain welded carbon steel pipe and tube from Turkey 

that fell within the scope of the antidumping duty order during 

the relevant period of review (“CBP data”). Commerce ranked the 

data by the weighted average unit values (“AUVs”) of each 

manufacturer’s total imports. Because the AUV of Tosçelik’s 

 

1

 As discussed at length in Allied Tube, if a 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. A new shipper review can 

be based on a single U.S. sale, as long as Commerce finds that 

the sale was a bona fide transaction. A sale is bona fide when 

it is “commercially reasonable.” Commerce looks at the totality 

of the circumstances to determine whether a sale is 

“commercially reasonable.” See generally Allied Tube, 31 CIT at 

__, Slip Op. 07-107 at *3-6. 
Court No. 06 – 00285 Page 4 

single U.S. sale fell within this range of AUVs by manufacturer,2

Commerce determined that the price of the sale was commercially 

reasonable. 

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 Fed.-

Mogul Corp. v. United States, 18 CIT 785, 807-08, 862 F. Supp. 

384, 405 (1994). In the present matter, the Court remanded and 

ordered Commerce to explain, if it is able, why its “range” 

methodology is a reasonable approach. Specifically, the Court 

stated: 

[T]he “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. 

Allied Tube, 31 CIT at __, Slip Op. 07-107 at *12. Commerce 

complied with the Court’s order and issued a remand 

determination. See Remand Determination Pursuant to Court 

Remand in Allied Tube & Conduit Corp. v. United States, Court 

No. 06-00285 (Dep’t Commerce Oct. 19, 2007) (“Remand 

 

2

 The AUV of Tosçelik’s sale ranked [ ] lowest out of [ ] 

manufacturers. 
Court No. 06 – 00285 Page 5 

Determination”). Commerce explains that the “range” methodology 

is reasonable because it best reflects the variation of the 

types of merchandise included in the scope of the order. For 

example, [ ], which has the lowest AUV in the range, might 

manufacture only a high volume, low value-added mix of products. 

On the other hand, [ ], which has the highest AUV, might 

manufacture only low-volume, high value-added products. Despite 

this variation, the products manufactured by both companies fall 

within the scope of the order, and may be reflective of the 

market conditions at the time of the sale. Even though these 

two values are considerably different, Commerce believes it is 

reasonable to include them both in a comprehensive analysis of 

Tosçelik’s sale. 

The Court in Allied Tube was concerned that the smallquantity, high-value sales included in the “range” analysis 

might reflect different types of merchandise than the standard 

pipe imported by Tosçelik.3

 If they are indeed different 

products, it would be unreasonable to compare those figures to 

Tosçelik’s sale. Commerce admits that there is some product 

variation in the CBP dataset because it is based on the scope of 

the antidumping duty order, which includes multiple Harmonized 

 

3

 The manufacturers with high-value sales that concern Allied 

Tube are those imported by [ ]. See Allied Tube, 31 CIT at __, 

Slip Op. 07-107 at *9 n.5. The AUVs of these manufacturers (not 

including Tosçelik) range from [ ] to [ ] per MT. 
Court No. 06 – 00285 Page 6 

Tariff Schedule (“HTS”) numbers. Commerce believes it would be 

arbitrary to exclude the small-quantity, high value entries that 

Allied Tube challenges as “aberrational,” because it is possible 

that those sales may, in fact, be the same type of merchandise 

imported by Tosçelik. 

Commerce is correct to conclude that it would be arbitrary 

to simply disregard the manufacturers with high AUVs and 

conclude that Tosçelik’s sale price was not commercially 

reasonable. It would be equally arbitrary to assume that the 

high AUV sales, some over [ ] the overall AUV of the CBP data, 

are commercially reasonable, without further investigation. In 

light of the requirement that Commerce must carefully scrutinize 

new shipper reviews that are based on single sales, Tianjin 

Tiancheng Pharmaceutical Co. v. United States, 29 CIT __, __, 

366 F. Supp. 2d 1246, 1263 (2005), Commerce should take the 

additional step of ensuring that it is reasonable to include the 

disputed high-AUV data in the range. 

At the Court’s suggestion, Commerce disaggregated the CBP 

data for the manufacturers to which Allied Tube had no 

objection.4

 Additionally, Commerce looked at only the data for 

the HTS category that encompasses Tosçelik’s sale. Commerce 

 

4

 Commerce limited the disaggregated data analysis to the subset 

of manufacturers comprising [ ] percent of entries by volume. 

These manufacturers are: [ ]. See Remand Determination at 21. 
Court No. 06 – 00285 Page 7 

found that the AUV of Tosçelik’s sale fell well within the range 

of disaggregated entry values.5

 See Remand Determination at 22. 

Because Commerce does not have access to shipment-specific 

data,6

 it is uncertain what different types of merchandise are 

being compared in the disaggregated data analysis. However, the 

disaggregated data analysis undercuts Allied Tube’s assertion 

that the AUVs of certain manufacturers should be summarily 

excluded as “aberrational.” The manufacturers which Allied Tube 

implicitly accepts as non-aberrant have small-quantity entries 

that are well above the AUV of Tosçelik’s sale. See Remand 

Determination at 21-22. In response to Commerce’s comprehensive 

Remand Determination, Allied Tube relies on the same argument it 

made in Allied Tube: that the AUV of Tosçelik’s single sale was 

higher than the AUVs of all but [ ] percent of all entries by 

quantity during the period of review. While this may be true, 

it does not mean that high-priced, low quantity sales are not 

bona fide. Single sales should be “carefully scrutinized,” but 

 

5

 The disaggregated entry values range from [ ] to [ ] per MT. 

Tosçelik’s sale has an AUV of [ ] per MT. See Remand 

Determination at 22. 

6

 Commerce notes that during the course of a new shipper review, 

“it is not within the Department’s practice to attempt to obtain 

the detailed invoices and specific product codes for each and 

every sale that is reported by CBP for the POR, given the 

proprietary restrictions of such data.” Remand Determination at 

10. The Court agrees that in the present case, it would be 

overly burdensome and unnecessary to require Commerce to obtain 

detailed invoices and shipment-specific data. 
Court No. 06 – 00285 Page 8 

they are not inherently commercially unreasonable. Tianjin 

Tiancheng Pharm. Co., 29 CIT at __, 366 F. Supp. 2d at 1263. 

Additionally, Allied Tube completely ignores Commerce’s 

disaggregation analysis. Allied Tube fails to point to any 

evidence, aside from unsupported assertions, that detracts from 

Commerce’s conclusion. 

In its Remand Determination, Commerce has sufficiently 

scrutinized the price of Tosçelik’s single U.S. sale, and the 

agency’s conclusion that the price is commercially reasonable is 

supported by substantial evidence.7

 

7

 In the Remand Determination, Commerce took issue with the 

Court’s analysis of the “ordinary course of trade” requirement 

discussed in Corus Staal BV v. United States, 27 CIT 388, 404-

05, 259 F. Supp. 2d 1253, 1268 (2003). See Allied Tube, 31 CIT 

at __, Slip Op. 07-107 at *11-13. The Court does not intend to 

suggest that the “commercial reasonableness” test for new 

shipper reviews involves exactly the same analysis as the 

“ordinary course of trade” concept defined in 19 U.S.C. § 

1677(15). However, “[w]hen 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.” Id. at __, 

Slip Op. 07-107 at *12; see Hebei New Donghua Amino Acid Co. v. 

United States, 29 CIT __, __, 374 F. Supp. 2d 1333, 1338 (2005) 

(holding that “[i]n accordance with the goal of ensuring a 

realistic U.S. price figure, it is reasonable that Commerce uses 

the bona fide sale test to exclude sales that are ‘not typical 

of normal commercial transactions in the industry.’” (quoting

Tianjin Tiancheng Pharm. Co., 29 CIT at __, 366 F. Supp. 2d at 

1249-50). Following this principle, Commerce has adequately 

demonstrated that its range methodology, supported by the 

disaggregated data analysis, is reasonable. 
Court No. 06 – 00285 Page 9 

B. Shipping Costs 

In Allied Tube, the Court was concerned with the 

reasonableness of the high shipping costs associated with 

Tosçelik’s sale. Specifically, as understood from Commerce’s 

original new shipper review determination, Tosçelik’s shipment 

was made by container instead of full vessel load, which 

contributed to the higher freight charge. Commerce had not 

adequately explained why it was commercially reasonable for 

Tosçelik to make the shipment by container. On remand, Commerce 

explains that a U.S. customer is unlikely to order a full vessel 

load from a new shipper that does not have a “proven track 

record for producing to ASTM standards for the U.S. market or 

have a history of performance and quality in the U.S. market.” 

Remand Determination at 26. Furthermore, a container is a 

reasonable and appropriate means for transporting a quantity the 

size of Tosçelik’s sale. Tosçelik pre-sold the shipment to an 

unaffiliated U.S. customer who wished to test its suitability 

for the marketplace, even with the higher expense of 

containerized shipping. Id. at 25-26. All of these factors 

support Commerce’s conclusion that the shipping costs were 

commercially reasonable.8

 

8

 In Allied Tube I, the Court was concerned that the timing of 

(footnote continued) 
Court No. 06 – 00285 Page 10 

Allied Tube does not directly address the shipping cost 

issue, other than pointing out that the shipping costs were 

high. Instead, Allied Tube focuses on the small quantity of the 

sale. If the sale were a reasonable (i.e., larger) quantity, 

Allied Tube argues, the higher-cost containerized shipment would 

not have been necessary. In Allied Tube, the Court already 

determined that substantial evidence supports Commerce’s 

conclusion that the quantity of Tosçelik’s sale is commercially 

reasonable.9

 Allied Tube fails to call into question the 

reasonableness of the shipping cost. 

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

U.S. Sale Was a Bona Fide Transaction is Supported by 

Substantial Evidence 

The Court must consider together all of Commerce’s findings 

to ultimately determine whether there is substantial evidence to 

support its decision that under the totality of the 

 

Tosçelik’s U.S. entry indicated that it may be commercially 

unreasonable. Commerce explains that the timing of the sale is 

irrelevant because given the “lack of predictability in the 

exact timing of when a waterborne shipment would enter the 

United States, it is unreasonable to assume that Tosçelik was 

specifically attempting to time the entry at a date so close to 

the end of the POR.” Remand Determination at 28. The Court 

agrees. 

9

 In its original determination, Commerce compared Tosçelik’s 

sale to the size of Tosçelik’s sales in its home market. “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.” 

Allied Tube I, 31 CIT at __, Slip Op. 07-107 at *18. 
Court No. 06 – 00285 Page 11 

circumstances, Tosçelik’s single U.S. sale is a bona fide 

transaction. See Tianjin, 29 CIT at __, 366 F. Supp. 2d at 

1249-50. As discussed above, the price of Tosçelik’s U.S. sale 

and the associated shipping costs were commercially reasonable. 

There is also substantial evidence to support Commerce’s 

conclusion that the quantity of the sale was reasonable, and 

that Tosçelik followed normal business practices in executing 

the sale. See Allied Tube, 31 CIT at __, Slip Op. 07-107 at 

*18, 22-23. Viewed under the totality of the circumstances, 

there is substantial evidence to support Commerce’s conclusion 

that Tosçelik’s sale was bona fide. 

III. CONCLUSION

In light of the foregoing, Commerce’s remand determination 

is sustained in its entirety. A separate judgment will be 

entered accordingly. 

 /s/ Richard W. Goldberg

 Richard W. Goldberg 

 Senior Judge

Date: April 14, 2008 

 New York, New York