                                          Slip Op. 11 - 58

 UNITED STATES COURT OF INTERNATIONAL TRADE

                                        :
BORUSAN MANNESMANN BORU SANAYI :
ve TICARET A.ª.,                        :
                                        :
                          Plaintiff,    :
                                        :
                  v.                    :              Before: R. Kenton Musgrave, Senior Judge
                                        :              Court No. 10-00312
UNITED STATES,                          :
                                        :
                          Defendant,    :
                                        :
                 and                    :
                                        :
WHEATLAND TUBE COMPANY, and             :
UNITED STATES STEEL CORP.,              :
                                        :
                 Defendant-Intervenors. :
                                        :


                                    OPINION AND ORDER

[Denying defendant’s motion to dismiss part of plaintiff’s complaint.]

                                                                             Dated: May 26, 2011

               Lafave Associates (Arthur J. Lafave III) for the plaintiff.

               Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Franklin E.
White, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Melissa M. Devine); Office of the Chief Counsel for Import Administrative, U.S.
Department of Commerce (Sapna Sharma), of counsel, for the defendant.

             King & Spaulding, LLP (Gilbert B. Kaplan, Brian E. McGill, Daniel L.
Schneiderman, and Prentiss L. Smith), for the defendant-intervenor Wheatland Tube Company.

             Skadden Arps Slate Meagher & Flom, LLP (Jeffrey D. Gerrish, Robert E. Lighthizer,
and Soo-Mi Rhee), for the defendant-intervenor United States Steel Corporation.
Court No. 10-00312                                                                         Page 2


               Musgrave, Senior Judge: Presently before the court is a motion to dismiss the third

count of the plaintiff’s complaint with prejudice. See Borusan Mannesmann Boru Sanayi ve Ticaret

A.S. v. United States, Slip Op. 11-30, 2011 WL 1086057 (CIT Mar. 22, 2011), familiarity with which

is presumed. The government’s primary argument in support of the motion is appeal to the

“unequivocal” line of decisions upholding the practice of “zeroing” by the Department of

Commerce, International Trade Administration (“Commerce”), in the context of antidumping duty

administrative reviews as well as original investigations.

               As previously observed, the third count of the complaint alleges Commerce applied

an inconsistent construction of 19 U.S.C. § 1677(35) in zeroing the plaintiff’s sales in Certain

Welded Carbon Steel Pipe and Tube from Turkey: Notice of Final Antidumping Duty Administrative

Review, 75 Fed. Reg. 64250 (Dep’t Comm. Oct. 19, 2010), after abandonment of that practice in

investigations. See Antidumping Proceedings: Calculation of the Weighted-Average Dumping

Margin During an Antidumping Investigation; Final Modification, 71 Fed. Reg. 77722, 77724

(Dep’t Comm. Dec. 27, 2006). The government’s motion to dismiss has been held in abeyance

pending a decision of the Court of Appeals for the Federal Circuit (“CAFC”) on Dongbu Steel Co.

v. United States, 42 CIT ___, 677 F. Supp. 2d 1353 (2010), appeal docketed, No. 2010-1271 (Fed.

Cir. Mar. 29, 2010), which addressed a similar issue. That decision has now come.

               In Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011), the CAFC

concluded Commerce had not provided a reasonable explanation for differing interpretations of

“weighted average dumping margin” that depend upon whether the context is administrative review

or investigation, see 19 U.S.C. § 1677(35)(A)&(B), and therefore the matter was remanded to this
Court No. 10-00312                                                                        Page 3


Court for further instruction to Commerce either to provide a reasonable explanation or “choose a

single consistent interpretation of the statutory language.” 635 F. 3d at 1373.

               Mandate thereof having issued, on May 23, 2011, consistent therewith the instant

motion to dismiss with prejudice must be, and it hereby is, denied. Motion and briefing shall

proceed accordingly. See Order of March 22, 2011, ECF No. 58.

               So ordered.


                                                /s/ R. Kenton Musgrave
                                                R. KENTON MUSGRAVE, Senior Judge

Dated: May 26, 2011
       New York, New York
