Haba , 2019 CIT 144 ( 2019 )

Slip Op. 19-144
UNITED STATES COURT OF INTERNATIONAL TRADE
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Plaintiff and Consolidated
Plaintiffs,
and
CHARTER STEEL and KEYSTONE
CONSOLIDATED INDUSTRIES, INC.,
Before: Claire R. Kelly, Judge
Consolidated Plaintiff-Intervenors,
Consol. Court No. 18-00144
v.
UNITED STATES,
Defendant,
and
NUCOR CORPORATION ET AL.,
Defendant-Intervenors and
Consolidated Defendant-
Intervenors.
OPINION AND ORDER
[Sustaining in part and remanding in part the Department of Commerce’s countervailing
duty determination.]
Dated: November 19, 2019
David L. Simon, Law Office of David L. Simon, of Washington, DC, argued for +DEDú
Sinai ve 7LEEL*D]ODU,VWLKVDO(QGVWULVL$ù
Consol. Court No. 18-00144 Page 2
Russell A. Semmel, Arent Fox LLP, of Washington, DC, argued for Icdas Celik Enerji
Tersane ve Ulasim Sanayi, A.S. With him on the brief were Matthew M. Nolan and Leah
N. Scarpelli.
Maureen E. Thorson, Wiley Rein, LLP, of Washington DC, for Nucor Corporation. With
her on the brief were Stephen Claeys and Derick G. Holt.
Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, argued for Defendant. With her on the brief were Joseph H.
Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, L. Misha Preheim,
Assistant Director, and Elizabeth Anne Speck, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice. Of counsel was Nathan P.L.
Tubman, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance,
Department of Commerce.
Kelly, Judge: This action is before the court on motion for judgment on the agency
record. See Pl.’s R. 56.2 Mot. J. Agency Rec., Dec. 3, 2018, ECF No. 25; Nucor
Corporation’s R. 56.2 Mot. J. Agency Rec., Dec. 3, 2018, ECF No. 27; Consol. Pl. Icdas
Celik Enerji Tersane ve Ulasim Sanayi, A.S.’s R. 56.2 Mot. J. Agency Rec., Dec. 3, 2018,
ECF No. 32. Plaintiff +DEDú Sinai Ve Tibbi Gazlar Istihasal Endustrisi A.ù. (“+DEDú”),
Consolidated Plaintiff Icdas Celik Enerji Tersane ve Ulasim, A.S. (“Icdas”), and
Consolidated Plaintiff and Defendant-Intervenor Nucor Corporation (“Nucor”) challenge
various aspects of the U.S. Department of Commerce’s (“Department” or “Commerce”)
final determination in the countervailing duty (“CVD”) investigation of carbon and alloy
steel wire rod from the Republic of Turkey (“Turkey”). See Carbon and Alloy Steel Wire
Rod From [Turkey], 83 Fed. Reg. 13,239 (Dep’t Commerce Mar. 28, 2018) (final
affirmative [CVD] determination & final affirmative critical circumstances determination in
part) (“Final Results”), and accompanying Issues & Decision Memo. for Final Affirmative
Determination, Mar. 19, 2018, ECF No. 20–4 (“Final Decision Memo”); see also Carbon
and Alloy Steel Wire Rod From [Turkey], 83 Fed. Reg. 23,420 (Dep’t Commerce May 21,
Consol. Court No. 18-00144 Page 3
2018) (amended final affirmative [CVD] determination for [Turkey] and [CVD] orders for
Italy and [Turkey]) (“CVD Order”).
+DEDú, Icdas, and Nucor commenced separate actions pursuant to Section 516A
of the Trade Act of 1930, 19 U.S.C. § 1516a, and 28 U.S.C. § 1581(c) (2012),1 which
were later consolidated. See Summons, June 19, 2018, ECF No. 1; Compl., July 12,
2018, ECF No. 6; Order, Sept. 20, 2018, ECF No. 23 (consolidating Court No. 18-00144,
Court No. 18-00146, and Court No. 18-00148 under Court No. 18-00144). +DEDú and
Icdas contest Commerce’s application of adverse facts available after determining that
+DEDú and Icdas failed to report the use of the “Assistance to Offset Costs Related to
AD/CVD Investigations” program (“Offset Program”) as unsupported by substantial
evidence and contrary to law. See Memo. Supp. Mot. Pl. [+DEDú] J. Agency Rec.
Pursuant R. 56.2 at 11–24, Dec. 3, 2018, ECF No. 25 (“+DEDú Br.”); Consol. Pl. [Icdas]
Memo. L. Supp. Mot. J. Agency Rec. Pursuant R. 56.2 at 6–10, Dec. 3, 2018, ECF No.
32 (“Icdas Br.”). Icdas also argues that Commerce’s decision to treat this program as
countervailable is unsupported by substantial evidence. See Icdas Br. at 10–11.
Nucor separately argues that Commerce’s selection of benchmark data to
calculate the benefit associated with natural gas for less than adequate remuneration
(“LTAR”) is inadequately explained, does not represent the best available information,
and is unsupported by substantial evidence and contrary to law. Memo. Supp. Nucor’s
R. 56.2 Mot. J. Agency Record at 10–25, Dec. 3, 2018, ECF No. 28 (“Nucor Br.”). Nucor
1
Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19
of the U.S. Code, 2012 edition.
Consol. Court No. 18-00144 Page 4
requests the court to deny +DEDú’s and Icdas’s motions for judgment on the agency
record and to only remand Commerce’s selection of benchmark data. See id. at 25; Resp.
Br. Def.-Intervenor [Nucor] at 7, Apr. 12, 2019, ECF No. 39 (“Nucor Resp. Br.”); [Nucor’s]
Reply Br. at 10, May 28, 2019, ECF No. 45 (“Nucor Reply Br.”). Defendant requests the
court to uphold Commerce’s Final Results in their entirety. See Def.’s Resp. Pl.’s &
Consol. Pl.’s Mots. J. Agency Rec. at 1, 40, Mar. 29, 2019, ECF No. 37 (“Def.’s Resp.
Br.”). For the reasons set forth below, the court sustains Commerce’s application of an
adverse inference for the selection of facts available to +DEDú and Icdas and remands
Commerce’s selection of benchmark data for further consideration and explanation.
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Following petitions by domestic producers of wire rod, including Nucor, Commerce
initiated a countervailing duty investigation of carbon and alloy steel wire rod from Turkey
on April 17, 2017, pursuant to Section 702 of the Tariff Act of 1930, as amended, 19
U.S.C. § 1671a. See Carbon and Alloy Steel Wire Rod From Italy and Turkey, 82 Fed.
Reg. 19,123 (Dep’t Commerce Apr. 26, 2017) (initiation [CVD] investigations).2
Petitioners alleged that the Turkish Steel Exporters’ Association (“TSEA”) is an entity
controlled by the Government of Turkey (“GOT”) that provided financial support to Turkish
exporters subject to anti-dumping and countervailing duty (“AD/CVD”) investigations,3
2
The period of investigation is from January 1, 2016 to December 31, 2016 (“period of
investigation” or “POI”). Preliminary Decision Memo. at 4.
3 TSEA, however, described itself as “a nonprofit business and trade association[,]” which
“share[s] some part of its budget with the exporters subject to investigation.” GOT Initial
Questionnaire Response at Ex. 29, CD 53, 87, bar code 3600503-35 (Jul7 27, 2017) (“GOT Initial
Questionnaire Response”). TSEA also indicated that “no government agencies or authorities
[are] responsible for administering this assistance.” Id.
Consol. Court No. 18-00144 Page 5
which amounted to a countervailable subsidy. See DOC Initiation Checklist at 21–22, PD
42, bar code 3565079-01 (Apr. 17, 2017).4 Petitioners also contended that Turkish wire
rod producers purchased natural gas from the GOT for LTAR and received a
countervailable subsidy. See Decision Memo. for Preliminary Determination in [CVD]
Investigation of Carbon and Alloy Steel Wire Rod from [Turkey] at 14–17, C-489-832,
Aug, 25, 2017, available at https://enforcement.trade.gov/frn/summary/turkey/2017-
18640-1.pdf (last visited Nov. 14, 2019) (“Preliminary Decision Memo.”). On June 2,
2017, Commerce selected +DEDú and Icdas as mandatory respondents for individual
investigation and issued questionnaires. See Respondent Selection Memo. at 1, PD 67,
bar code 3577988-01 (June 2, 2017); see also Preliminary Decision Memo. at 4.
On September 5, 2017, Commerce issued its preliminary determination. See
Carbon and Alloy Steel Wire Rod From [Turkey], 82 Fed. Reg. 41,929 (Dep’t Commerce
Sept. 5, 2017) (preliminary affirmative determination & preliminary affirmative critical
circumstances determination in part), and accompanying Preliminary Decision Memo.
Commerce preliminarily determined that +DEDú benefitted in its purchase of natural gas
from GOT for LTAR, by comparing prices +DEDú paid to a benchmark price in accordance
with the three-tiered analysis set out in 19 C.F.R. § 351.511(a)(2) (2017). See Preliminary
Decision Memo. at 14–17. Commerce considered Turkey’s domestic prices to be
distorted and selected data from the International Energy Administration (“IEA”) as the
4
On August 21, 2018, Defendant filed indices to the public and confidential administrative records
underlying Commerce’s final determination, on the docket, at ECF No. 20-5–6. Citations to
administrative record documents in this opinion are to the numbers Commerce assigned to such
documents in the indices.
Consol. Court No. 18-00144 Page 6
benchmark. See id. at 16. Further, Commerce did not find +DEDú or Icdas used the
GOT’s Offset Program, because “[t]he company respondents reported that they did not
receive benefits under the under the programs during the POI or [average useful life of
the subsidy.]” Id. at 29–30.
Between January 18, 2018 and February 1, 2018, Commerce conducted
verifications, and on March 28, 2018, Commerce issued its Final Results. See Final
Results, 83 Fed. Reg. at 13,240. Having discovered unreported information regarding
the Offset Program at verification, Commerce selected from facts otherwise available with
an adverse inference to calculate subsidy rates for +DEDú and Icdas, because it found
that neither company acted to the best of its ability. See id.; see also Final Decision
Memo. at 4–7. Commerce assigned +DEDú and Icdas respective subsidy rates of 3.86
percent and 3.81 percent. Final Results, 83 Fed. Reg. at 13,240.5 Commerce also
reconsidered the use of IEA data as a benchmark and, instead, selected Russian Eurostat
data. Final Decision Memo. at 13–14.
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The court exercises jurisdiction pursuant to 19 U.S.C. § 1516a and 28 U.S.C.
§ 1581(c) (2012), which grant the Court authority to review final determinations in a CVD
investigation. “The court shall hold unlawful any determination, finding, or conclusion
5
Following the parties’ submission of ministerial error comments, Commerce issued a ministerial
error memorandum and then published the amended final determination and CVD order. See
Ministerial Error Allegation Memo., PD 327, bar code 3706334-01 (May 3, 2018); see also CVD
Order.
Consol. Court No. 18-00144 Page 7
found . . . to be unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. Commerce’s Selection of Facts Otherwise Available with an Adverse
Inference
In the final determination, Commerce applied an adverse inference to its selection
of facts otherwise available in finding that both +DEDú and Icdas used the Offset Program.
See Final Decision Memo. at 4–7. +DEDú and Icdas argue that Commerce’s application
of an adverse inference is not supported by substantial evidence and is not in accordance
with law. See +DEDú Br. at 11–23; Icdas Br. at 6–10. As explained below, because Icdas
and +DEDú failed to provide information on the Offset Program in response to
Commerce’s questionnaires, Commerce reasonably used facts otherwise available and,
JLYHQ +DEDú and Icdas did not act to the best of their respective abilities, applied an
adverse inference.
In a CVD investigation, Commerce requires information from respondents and the
foreign government to determine whether that foreign government provided a
countervailable subsidy and, further, whether a countervailing duty must be imposed.6
See 19 U.S.C. §§ 1671(a), 1677(5)(B); see also Fine Furniture (Shanghai) Ltd. v. U.S.,
748 F.3d 1365, 1369–70 (Fed. Cir. 2014). To analyze whether a subsidy is
6
Under the statute, if Commerce determines that a foreign government or public entity “is
providing, directly or indirectly, a countervailable subsidy with respect to the manufacture,
production, or export of a class or kind of merchandise imported, or sold (or likely to be sold) for
importation, into the United States,” Commerce will impose a countervailing duty equal to the
amount of the countervailable subsidy. See 19 U.S.C. § 1671(a); see also Delverde, SrL v. United
States, 202 F.3d 1360, 1365 (Fed. Cir. 2000).
Consol. Court No. 18-00144 Page 8
countervailable, Commerce determines whether, inter alia, a recipient receives a benefit
as a result of that contribution.7 19 U.S.C. § 1677(5)(B). The statute treats a benefit as
conferred where goods are provided for LTAR. Id. at § 1677(5)(E). For a subsidy that
confers a non-recurring benefit—or a subsidy “for which the benefit . . . extend[s] beyond
the period that the subsidy was conferred”—Commerce will allocate that benefit to a
company over time, corresponding to the average useful life (“AUL”) of renewable
physical assets. Magnola Metallurgy, Inc. v. U.S., 508 F.3d 1349, 1352 (Fed. Cir. 2007);
see also 19 CFR § 351.524. Commerce will request information from respondents and
the foreign government probative of whether, and when, a countervailable subsidy has
been conferred. See Fine Furniture, 748 F.3d at 1369–70. That information is subject to
verification. See 19 U.S.C. § 1677m(i).
If, however, a respondent fails to provide information, Commerce will use facts
otherwise available to fill resulting information gaps and reach a determination. See 19
U.S.C. § 1677e(a). Once Commerce determines that facts otherwise available are
warranted, Commerce may also draw an adverse inference, should it also find that a
respondent has failed to cooperate by not acting to the best of its ability.8 See id. at §
7
Commerce must also determine whether a foreign government provides a financial contribution
and whether that financial contribution is specific. See 19 U.S.C. 1677(5)(B) (defining subsidy);
see also 19 U.S.C. §§ 1677(5)(D)–(E), 1677(5A) (defining financial contribution, benefit, and
specificity).
8
Parties and Commerce sometimes use the shorthand “adverse facts available” or “AFA” to refer
to Commerce’s reliance on facts otherwise available with an adverse inference to reach a final
determination. See, e.g., Final Results, 83 Fed. Reg. at 13,240; Final Decision Memo. at 4–7.
However, AFA encompasses a two-part inquiry pursuant to which Commerce must first identify
why it needs to rely on facts otherwise available, and, second, explain how a party failed to
cooperate to the best of its ability as to warrant the use of an adverse inference when “selecting
among the facts otherwise available.” See 19 U.S.C. § 1677e(a)–(b).
Consol. Court No. 18-00144 Page 9
1677e(b). To determine whether a respondent cooperated to the best of its ability,
Commerce will assess whether the respondent “has put forth its maximum effort to
provide Commerce with full and complete answers to all inquiries in an investigation.”
Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
Commerce reasonably selected facts otherwise available and applied an adverse
inference in its selection of those facts. Commerce found that the record lacked
necessary information concerning Habaú’s and Icdas’s use of non-recurring subsidies
based upon the AUL, and not merely the POI. See Final Decision Memo. at 5.
Commerce, therefore, reasonably found it necessary to fill this informational gap with
facts otherwise available. Id. at 4–5. Further, Icdas and +DEDú each failed to completely
answer questions regarding the Offset Program and to do so by specified deadlines. Id.
at 5–6. In its initial questionnaire, Commerce specifically requested information both from
the period of investigation as well as the longer 15-year AUL period. See, e.g., DOC
Questionnaire at II-2, III-19, PD 68, bar code 3579371-01 (June 8, 2017) (“DOC
Questionnaire”).9 Further, Commerce asked the GOT about the Offset Program, and
whether the respondents, +DEDú and Icdas, had used the program. See [GOT] Initial
Questionnaire Response at 94, CD 53, 87, bar codes 3600503-01, 3600503-35 (July 27,
2017) (“GOT Initial Questionnaire Response”). The GOT replied that “[t]here is no such
9
At Section II (addressed to GOT), Commerce advised that because “the AUL is 15 years” in this
case, “you must provide information concerning ‘non-recurring’ subsidies . . . approved or
disbursed during the AUL.” See DOC Questionnaire at II-8. Further, at Section III (addressed to
respondents), Commerce indicated that it was investigating non-recurring subsidies during the
AUL period. Id. at III-3, III-19, III-21.
Consol. Court No. 18-00144 Page 10
. . . support program” and referred to the TSEA’s answers to the questionnaire
appendices. See id. at 94, Ex. 29. TSEA stated that “[n]one of the respondent companies
received any assistance during the POI” and “[h]ence, the remaining questions . . . are
not responded.” Id. at Ex. 29. +DEDú and Icdas also each indicated that they did not
receive any assistance from TSEA and, therefore, did not respond to the remaining
questions.10 See +DEDú Initial Questionnaire Response at 39, CD 46, bar code 3600040-
01 (July 27, 2017) (“+DEDú Questionnaire Response”); Icdas Resp. to Sec. III
Questionnaire at III-47, CD 117, bar code 3601330-02 (July 27, 2017) (“Icdas
Questionnaire Response”). However, at verification, +DEDú, and Icdas each confirmed
that such a program existed and that they had received payments from it during the AUL
period.11 See DOC Verification Report Re: +DEDú at 10, PD 308, bar code 3679012-01
(Mar. 1, 2018) (“Company officials stated that the program is still active but the board of
10
+DEDúFRQWHQGVWKDW³HYHQLIWKHUHZHUHDJDSLQWKHUHFRUG&RPPHUFHPXVWIROORZ86&
§ 1677m(d),” which requires Commerce to promptly inform the submitter of a deficient response
to a request for information. See +DEDú%UDW20–21. This argument is misplaced. Commerce
reasonably believed the record to be complete, because the respondents indicated that they did
not receive support from TSEA in their questionnaire responses. See Final Results at 5; see also
+DEDú4XHVWLRQQDLUH5HVSRQVHDW,FGDV4XHVWLRQQDLUH5HVSRQVHDW,,,-46. Moreover, neither
respondent indicated that it was not compelled to report the Offset Program in its responses,
because Commerce had reviewed that program in a separate proceeding—an argument both
now make. See +DEDú%UDW–16; Icdas Br. at 7–8. Given the state of the record, Commerce
was not aware of any purported deficiency.
11
+DEDúDUJXHVWKDW&RPPHUFH¶VLQWHUHVWLQWKH2IIVHt Program did not extend beyond the POI.
See +DEDú %U DW  $V VXSSRUW +DEDú UHIHUV WR &RPPHUFH¶V VXSSOHPHQWDOTXHVWLRQQDLUH LQ
which Commerce DVNHG+DEDúWR³H[SODLQLI\RXUHFHLYHGDQ\RWKHUDVVLVWDQFHIURPDQ\RWKHU
investigation during the POI to assist offset costs related to AD/CVD investigations” and, if so, to
“respond to all allocations in the . . . Grant Allocation Appendix.” Id.; see also +DEDú6XSSOHPHQWDO
Questionnaire at 5, CD 172, bar code 3608588- $XJ     +DEDú IRFXVHV RQ
Commerce’s reference to “POI” yet disregards the question’s reference to the appendix. The
Grant Allocation Appendix specifically queries information on the prior 14 years for each non-
recurring subsidy received during the POI. See DOC Questionnaire at III-21. Thus, the question
did not “exclude[] other portions of the AUL[,]” but included the AUL. See +DEDú%UDW
Consol. Court No. 18-00144 Page 11
the [TSEA], which approves payment under this program, decided not to disburse finds
for 2016.”); see also Verification Report for Icdas at 11, PD 306, bar code 3678403-01
(Mar. 1, 2017) (“[Company officials] explained that the[] fees represent payments received
to offset the costs of conducting AD/CVD investigations during [2014].”). The
respondents provided too little information and confirmed the existence of the Offset
Program too late.12 Therefore, Commerce’s decision to rely on facts available and to
apply an adverse inference was reasonable and supported by substantial evidence.13
Before the court, +DEDú and Icdas point to other parts of the record, which, in their
view, report the Offset Program. See +DEDú Br. at 13–16; Icdas Br. at 8–10. Specifically,
+DEDú appended Commerce’s final determination in an administrative review on rebar
steel (“Rebar II”) to its supplemental questionnaire responses. See +DEDú Supplemental
12
Commerce had no obligation to request or accept new factual information, after discovering a
response could not be corroborated at verification. See Tianjin Machinery Import & Export Corp.
v. United States, 28 CIT 1635, __, 353 F. Supp. 2d 1294, 1304 (“Verification is intended to test
the accuracy of data already submitted, rather than to provide a respondent with an opportunity
to submit a new response.”); see also Uniroyal Marine Exports Ltd. v. U.S., 33 CIT 803, 808–09,
626 F. Supp. 2d 1312, 1316–17 (2009) (holding that Commerce’s decision to reject untimely filed
factual information was reasonable and supported by substantial evidence).
13
+DEDú DUJXHV WKDW ³&RPPHUFH¶V GHFLVLRQ WR VHOHFW WKH KLJKHVW DYDLODEOH $)$ UDWH ZDV
inconsistent with the statutory mandate[,]” because, to do so, “Commerce must make a specific
factual determination, pursuant to 19 U.S.C. § 1677e(d)(2)” and “evaluate ‘the situation that
resulted’ in the application of AFA.” Habaú Br. at 22. Habaú explains that had Commerce
evaluated the situation, “it would not have found that Habaú failed to report the AUL benefit in the
first place, and it would not have found that Habaú withheld any information or failed to cooperate.”
Id. at 22. Defendant coQVLGHUVWKDW+DEDúKDGDQRSSRUWXQLW\WRFKDOOHQJHWKHDSSOLFDWLRQRIWKH
highest adverse facts available rate before Commerce but did not. Def.’s Resp. Br. at 20–23.
'HIHQGDQWDUJXHV+DEDúLVQRZEDUUHGIURPUDLVLQJWKLVDUJXPHQWEHFDXVHLWIDLOHGWRH[haust
administrative remedies. Id. :KHWKHURUQRW+DEDúIDLOHGWRH[KDXVWLWVDGPLQLVWUDWLYHUHPHGLHV,
Commerce, did evaluate the situation that resulted in the application of AFAFRQWUDU\WR+DEDú¶V
contentions. Commerce reasonably determined that, becDXVH +DEDú GLG QRW UHSRUW WKH 2IIVHW
Program until verification, it did not cooperate to the best of its abilities, meriting an adverse
inference in the selection of facts otherwise available. See Final Decision Memo. at 4–7.
Consol. Court No. 18-00144 Page 12
Questionnaire at Ex. 4, CD 172, bar code 3608588-01 (Aug. 17, 2017) ³+DEDú
Supplemental Questionnaire”) (attaching Issues & Decision Memo. for Final Affirmative
Determination in [CVD] Investigation Steel & Concrete Reinforcing Steel from [Turkey],
C-489-830, (May. 15, 2017), available at
https://enforcement.trade.gov/frn/summary/turkey/2017-10505-1.pdf (last visited Nov.
14, 2019)). Moreover, in attaching the final determination of another proceeding, +DEDú
did not argue that the Offset Program was not countervailable; and, it did not bring Rebar
II’s reference to the Offset Program to Commerce’s attention. See +DEDú Br. at 13–16;
see also +DEDú Supplemental Questionnaire at 2, Ex. 4. Yet, according to +DEDú,
because Rebar II referred to the Offset Program, it was “in plain sight[.]” See +DEDú Br.
at 15; see also Reply Br. Pl. [+DEDú] at 1–3, May, 28, 2019, ECF No. 43 (“+DEDú Reply
Br.”). Icdas, too, refers to another proceeding, namely another administrative review on
rebar steel (“Rebar I”). See Icdas Br. at 7–8 (citing Steel Concrete Reinforcing Bar From
[Turkey], 82 Fed. Reg. 26,907 (Dep’t Commerce June 12, 2017) (final results & partial
rescission), and accompanying Issues & Decision Memo., C-489-819, (June 6, 2017),
available at https://enforcement.trade.gov/frn/summary/turkey/2017-12108-1.pdf (last
visited Nov. 14, 2019)). Since Commerce had determined that the benefit under the
Offset Program had been “expensed”,14 in that proceeding, Icdas explains to the court, it
did not include the program in its reporting in this proceeding. See Icdas Br. at 3, 7–10;
14
Although Icdas may have had a “reasonable belief that the program was not countervailable
during the current POI[,]” a respondent’s reasonable belief does not excuse the failure to report
requested information. See Icdas Br. at 10; see also Nippon Steel, 337 F.3d at 1383 (“[T]here is
no mens rea component to the section 1677e(b) inquiry [to apply an adverse inference].”).
Consol. Court No. 18-00144 Page 13
see also Reply Br. Consol. Pl. [ICDAS] to [Def.’s Resp. Br.] at 3–7, May 28, 2019, ECF
No. 44 (“Icdas Reply Br.”). However, like +DEDú, Icdas referred to Rebar I to Commerce
in respect to the countervailability of a separate grant program. See Icdas Questionnaire
Response at III-21, III-42; see also Icdas Supplemental Questionnaire Response at S2-
12, PD 217, 218, bar code 3609227-01 (Aug. 17, 2017) (“Icdas Supp. Questionnaire
Resp.”). Pointing generally to a final determination in a separate proceeding that happens
to mention the Offset Program, yet is proffered in direct response to questions regarding
an entirely different grant program, neither advises Commerce as to the existence of the
Offset Program nor is probative of whether that Offset Program conferred a
countervailable subsidy in the instant proceeding.15 Rather, by specifically asking about
the Offset Program, it was “reasonable for Commerce to expect that more forthcoming
responses should have been made[.]” See Nippon Steel, 337 F.3d at 1383.
Further, Icdas contends that, based on Commerce’s determination in Rebar I that
the Offset Program’s benefits had been expensed prior to the POI, the Offset Program is
not countervailable in this administrative review. See Icdas Br. at 10–11; see also Icdas
Reply Br. at 7–10.16 However, Commerce considers the record before it and is not bound
15
In its supplemental questionnaire, Commerce informed Icdas that “references to the
Department’s final results in [Rebar I] are not sufficient to demonstrate that a program is not
countervailable, as the Department considers the records of separate proceedings to be distinct.”
Icdas Supp. Questionnaire Resp. at S2-12. Commerce indicated to Icdas that it required a more
complete response. Id.
16
Icdas also contends that “nothing bars Commerce from considering decisions in the context of
a proximate proceeding involving the same subsidy, the same respondent, the same production
facility, and similar products.” Icdas Reply Br. at 3–4. In making that argument, Icdas attempts
to draw a parallel between Commerce’s practices of relying on corroborated rates from earlier
segments of the proceeding and of transferring non-proprietary information from one proceeding
to another. See id. Even if Commerce has such discretion, Icdas does not provide any authority
as to why Commerce must exercise that discretion here.
Consol. Court No. 18-00144 Page 14
by its decisions in separate proceedings. See Essar Steel Ltd. v. United States, 678 F.3d
1268, 1277 (Fed. Cir. 2012). Given neither respondent confirmed the existence and use
of the Offset Program during the AUL period in this proceeding, Commerce’s application
of facts available with an adverse inference was reasonable.
II. Commerce’s Selection of Benchmark Data
Nucor challenges Commerce’s selection of Russian Eurostat data over two other
potential data sources—i.e., IEA data and GTA data17—claiming the choice of Russian
Eurostat data is inadequately explained and unsupported. Nucor Br. at 1–2, 9; Nucor
Reply Br. at 1–2. Defendant disagrees on both counts. See Def.’s Resp. Br. at 24–40.
For the reasons that follow, Commerce’s selection of Russian Eurostat data on this record
is not reasonable.
Commerce imposes a countervailing duty when it determines that a foreign
government provided a financial contribution resulting in a benefit to the recipient, where
the government’s provision of goods is for LTAR. 19 U.S.C. § 1677(5)(E). Commerce
measures the adequacy of remuneration “in relation to prevailing market conditions for
the good . . . being provided” in the country subject to review. 19 U.S.C. § 1677(5)(E)(iv).
Its regulations set out a hierarchy of methodologies to identify the appropriate benchmark.
19 C.F.R. § 351.511(a)(2). Under the “tier one” benchmark, Commerce compares the
“government price to a market-determined price for the good or service resulting from
17
+DEDúSURYLGHGEHQFKPDUNGDWDIURPWKH*OREDO7UDGH$WODV ³*7$´ (XURVWDWDQG(QHUJ\
Experts international. See Letter From HabDú UH %HQFKPDUNLQJ 'DWD 3'  EDU FRGH
3599709-01 (July 26, 2017). Nucor submitted benchmark data from the IEA. See Nucor
Deficiency Comments, PD 193–94, bar codes 3607060-01, 3607062-01 (Aug. 11, 2017).
Consol. Court No. 18-00144 Page 15
actual transactions in the country in question.” Id. at § 351.511(a)(2)(i).18 If country
market prices are not available, then under the “tier two” benchmark, Commerce
“compar[es] the government price to a world market price where it is reasonable to
conclude that such price would be available to purchasers in the country in question.”19
Id. at § 351.511(a)(2)(ii). Should that benchmark also be unavailable, Commerce will
measure remuneration with the “tier three” benchmark, which “assess[es] whether the
government price is consistent with market principles.” Id. at
§ 351.511(a)(2)(iii).
Here, in Commerce’s investigation of respondents’ purchases of natural gas for
power generation—i.e., natural gas in its gaseous form exclusive of compressed natural
gas (“CNG”) and liquified natural gas (“LNG”)—from the GOT, Commerce benchmarked
the GOT’s natural gas prices against a “world market price” and ultimately selected
Russian Eurostat data to do so. See Preliminary Decision Memo. at 15–16; Final
Decision Memo. at 13–14. In the preliminary determination, Commerce selected IEA data
as the “world market price” with which to compare the GOT’s prices, because IEA data
reflected prices available to Turkish purchasers20 and, in a prior proceeding, Commerce
18
Commerce concluded there was no usable market-determined tier one benchmark because of
the GOT’s “overwhelming involvement” in Turkey’s natural gas market, which distorts private
transaction prices. Preliminary Decision Memo. at 15–16; see also Final Decision Memo. at 13.
19
If there is more than one commercially available world price, Commerce “will average such
prices to the extent practicable[.]” 19 C.F.R. § 351.511(a)(2)(ii).
20
Commerce, in the preliminary determination, considered that IEA data to reflect prices available
to Turkish purchasers. However, in the final determination, Commerce made no mention of this
preliminary finding. While Commerce is not bound to its preliminary determination, Commerce
(footnote continued)
Consol. Court No. 18-00144 Page 16
determined IEA data to be more accurate than GTA data.21 See Preliminary Decision
Memo. at 16–17. However, in the final determination, Commerce relied upon Russian
Eurostat data. See Final Decision Memo. at 13. Although Commerce explained its
reasons for rejecting GTA compared to IEA data,22 Commerce did not provide any
explanation for rejecting the IEA data or compare that data source with the Russian
Eurostat data. Compare Final Decision Memo. at 12–13 (explaining that the GTA data
“likely covers both natural gas and compressed natural gas . . . . that distort the value of
the data”) with id. at 13 (merely noting that “the IEA information is not the best information
on the record”). Commerce also made no finding that the IEA data was unusable or
otherwise unavailable, unlike the GTA data. Id. at 12–13. Rather, having eliminated GTA
data as a possible benchmark data source, two possible benchmark data sources—IEA
must explain why the IEA data’s merits—inclusive of whether it reflects natural gas availability to
Turkish producers—is a reasonable basis to reject that data. See NTN Bearing Corp. v. United
States, 74 F.3d 1204, 1208 (Fed. Cir. 1995) (“[P]reliminary determinations are ‘preliminary’
precisely because they are subject to change.”). Commerce, on remand, should clarify whether
and which data source or sources reflect natural gas that is available to Turkish purchasers.
21
Commerce explained that the IEA data included country-specific natural gas prices for
Organisation for Economic Co-operation and Development countries, including Turkey.
Preliminary Decision Memo. at 16. Further, given that natural gas may only be transported via
pipeline, Commerce noted that Turkish natural gas consumers would not be able to purchase gas
outside of OECD Europe. Id.
22
+DEDúDGYRFDWHGIRUWKHXVHRI*7$GDWDRYHU,($GDWDEHFDXVHLQ+DEDú¶VYLHZWKH,($
data was not reliable or usable. See +DEDú&DVH%UDW–17, CD 300, bar code 3681094-01
(Mar. 9, 2018). Commerce rejected each concern, explaining, inter alia, that it disagreed with
+DEDúWKDWWKH,($GDWDGLGQRWFRQWDLQLQIRUPDWLRQRQthe methodology used to obtain prices or
pricing information by user-specific categories. See Final Decision Memo. at 12–13. Further,
Commerce explained that it considered GTA data to be “unusable for this investigation,” because
the GTA data “likely covers both natural gas and compressed natural gas . . . . that distort the
YDOXHRIWKHGDWDSUHVHQWHGE\+DEDú´See id. at 12.
Consol. Court No. 18-00144 Page 17
and Russian Eurostat—remained. Commerce did not explain why the IEA data was “not
the best information on the record” but only stated that it “decided against using the . . .
the IEA data[.]” Id. If the IEA data was not usable, then Commerce should explain so;
otherwise, a bald assertion that the IEA information is “not the best information on the
record” does not articulate a reasonable explanation for rejection. See Baroque Timber
Indus. (Zongshan) Co., Ltd. v. United States, 38 CIT __, __, 971 F. Supp. 2d 1333, 1339
(2014) (citing Burlington Truck Lines, Inc. v. United States, 317 U.S. 156, 168 (1962)).
Nor does Commerce adequately explain why the Russian Eurostat data is the best
available data. Consistent with the regulatory preference that Commerce select a
benchmark price that would be available to in-country purchasers,23 Commerce
considered the “Russian export prices [to be] the best available data on the record . . .
because the information on the record shows that natural gas from Russia is available to
purchasers in via [sic] pipeline and the data only contains natural gas, exclusive of CNG
23
In relevant part, the CVD Preamble notes, with respect to tier two benchmark prices, that
Commerce “will consider whether the market conditions in the country are such that it is
reasonable to conclude that the purchaser could obtain the good or service on the world market.”
See Countervailing Duties, 63 Fed. Reg. 65,348, 65,377 (Dep't Commerce Nov. 25, 1998) (final
rule) (“CVD Preamble”). To illustrate, Commerce contrasts two situations:
[A] European price for electricity normally would not be an acceptable comparison
price for electricity provided by a Latin American government, because electricity
from Europe in all likelihood would not be available to consumers in Latin America.
However, as another example, the world market price for commodity products,
such as certain metals and ores, or for certain industrial and electronic goods
commonly traded across borders, could be an acceptable comparison price for a
government-provided good, provided that it is reasonable to conclude from record
evidence that the purchaser would have access to such internationally traded
goods.
Id., 63 Fed. Reg. at 65,377–78.
Consol. Court No. 18-00144 Page 18
and LNG.” Final Decision Memo. at 13 (citing 19 C.F.R. § 351.511(a)(2)(ii)).24 Commerce
referred to a pipeline map that, in its view, confirmed “natural gas, exclusive of CNG and
[LNG], is only imported into Turkey via pipeline from Azerbaijan, Iran, and Russia.” Id.
(citing GOT Initial Questionnaire Response at Ex. 7C, pp. 22–23). On that basis,
Commerce selected Russian Eurostat data.25 See id. However, between the premise—
that natural gas enters Turkey via the mapped pipeline routes—and the conclusion that
Russian Eurostat data is the “best available data on record”—Commerce’s analysis elides
several analytic steps in its Final Decision Memo. and fails to account for detracting
evidence on the record.
First, it is unclear whether the Russian Eurostat data reflects natural gas, exclusive
of CNG and LNG. +DEDú placed Eurostat data on the record to supplement GTA data26
and provide a “stand-in for Russian export figures[,]” given that Russia does not provide
24
Moreover, as Commerce noted in its preliminary determination, natural gas in its gaseous form
may only be transported via pipeline. See Preliminary Decision Memo. at 16.
25
Nucor challenges Commerce’s adoption of Russian prices, from the Eurostat data, as the world
market price. See Nucor Br. at 14–16; Nucor Reply Br. at 9–10. Nucor alleges, that because the
Russian government sets prices of natural gas, Russian Eurostat data cannot serve as a “world
market price.” Nucor Br. at 14–16; Nucor Reply Br. at 9–10. As Nucor clarified during oral
argument, in its view, a world market price must be a market-determined price, i.e., a price that,
like a tier one price, is free from government distortion. Oral Arg. at 6:30–9:02. The regulations
do not define “world market price.” Commerce must use a “world market price where it is
reasonable to conclude that such price would be available to purchasers in the country in
question.” 19 C.F.R. § 351.511(a)(2)(ii). Thus, it is possible that other available prices, too, could
be set by or otherwise distorted by a government; however, so long as that price is available to
other purchasers in the world market—and presumably in competition with other countries’ export
prices—Commerce may rely upon such an available “world market price.”
26
+DEDúLQFOXGHGH[KLELWVLQits benchmark submission to “captur[e] international trade in natural
gas from GTA as well as European imports of natural gas from Russia, from . . . Eurostat[,]”
because gas pipelines connect Turkey to the European Union (“EU”) and Russia. +DEDú&DVH
Br. at 10 (citing +DEDú%HQFKPDUN'DWD3'EDUFRGH-01 (July 26, 2017) ³+DEDú
Benchmark Data”)).
Consol. Court No. 18-00144 Page 19
value figures to GTA. +DEDú Benchmark Data, PD 108, bar code 3599709-01 (July 26,
2017). +DEDú indicated that both data sources reflect “HTS 2711.21, i.e. natural gas in
its gaseous state.” +DEDú Case Br. at 11; see also +DEDú Benchmark Data at Exs. 3–
5.27 Commerce, however, rejected GTA data because “the harmonized tariff schedule
number 2711.21, on which Habaú’s GTA data is based, likely covers both natural gas and
compressed natural gas.” Final Decision Memo. at 12. Commerce appears to have
selected the Russian Eurostat data even though it, too, may contain CNG.28 Commerce
does not address this evidence or explain why, unlike the GTA data,29 the Russian
Eurostat data reasonably reflect natural gas, exclusive of LNG and CNG.
27
Exhibit 5 contains screenshots from the Eurostat website, which sorts “import” data “by HS6”
and IRU³QDWXUDOJDVLQLWVJDVHRXVVWDWH´+DEDú%enchmark Data at Ex. 5. Further, at Exhibit 3,
+DEDú LQFOXGHG WKH GHILQLWLRQ RI +6  ZKLFK DV UHIOHFWHG LQ WKH +DUPRQL]HG 7DULII
Schedule for the United States, is “natural gas” in the “gaseous state.” Id. at Ex. 3.
28
Defendant refers to Commerce’s reasoning that “natural gas from Russia is available to
purchasers in [Turkey] via pipeline and the data only contains natural gas, exclusive of [CNG and
LNG]” as evidence that it is “reasonably discernable” that the “Eurostat data would not contain
[CNG] and [LNG].” Def.’s Resp. Br. at 35 (citing Final Decision Memo. at 13) (internal quotations
omitted). However, a step in Commerce’s reasoning, as noted above, appears to be missing.
Commerce fails to explain why the Russian Eurostat data would not contain CNG and LNG.
Defendant, similarly, does not point to record evidence that supports Commerce’s finding.
Moreover, while Defendant acknowledges that “Nucor’s case brief raised the issue that trade data
for HTS 2711.21 would include the compressed natural gas[,]” it faults Nucor for “not plac[ing] any
information on the record that indicated that Eurostat data is based on HTS 2711.21” and
considers Nucor, by raising the issue now, to have failed to exhaust administrative remedies. Id.
However, LW ZDV +DEDú QRW 1XFRU WKDW SODFHG WKH Russian Eurostat data on the record, and
indicated it covered HTS 2711.21, like the GTA data. See +DEDú&DVH%UDWsee also +DEDú
Benchmark Data at Exs. 3–5. Commerce, as explained above, must consider the record as a
whole, including detracting evidence, notwithstanding which respondent places what evidence on
the record. See CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1373 (Fed. Cir. 2016);
Altx, Inc. v. United States, 25 CIT 1100, __, 167 F. Supp. 2d 1353, 1374 (2001) (explaining that
the agency “must address significant . . . evidence which seriously undermines its reasoning and
conclusions”). Therefore, Defendant’s exhaustion argument is inapposite.
29
Defendant contends that a comparison of GTA and Russian Eurostat data is “moot” because,
(footnote continued)
Consol. Court No. 18-00144 Page 20
Second, Commerce, in the final determination, did not address Nucor’s arguments
regarding alleged “weight and energy miscalculations” concerning +DEDú’s submission of
the GTA and Eurostat data. Compare Preliminary Decision Memo. at 16 with Final
Decision Memo. at 11, 13–14. Both data sets required conversion for comparison to the
GOT’s prices for natural gas to determine the adequacy of remuneration. See +DEDú
Benchmark Data at 4–5. Nucor identified several flaws in +DEDú’s conversion factors in
its rebuttal case brief to Commerce.30 Nucor’s Rebuttal Br. at 9–12, CD 302, bar code
3682688-01 (Mar. 13, 2018) (“Nucor Rebuttal Br.”); see also Letter from Wiley Rein LLP
to Sec. Commerce re: Rebuttal Information on Benchmark, PD 195, bar code 3607062-
01 (Aug. 11, 2017). Commerce, however, did not address these points in its final
determination. Instead, it accepted +DEDú’s corrections of conversion deficiencies “with
respect to the GTA data.” See Final Decision Memo. at 12. Commerce did not explain
whether it also accepted +DEDú’s corrections of conversion deficiencies with respect to
the Russian Eurostat data. Moreover, even if Commerce’s acceptance extended to
Russian Eurostat data, Commerce nonetheless failed to address significant arguments
“[a]fter declining to use the [GTA] data for benchmarking purposes, it would have been
inconsistent to then use the information to undertake the manner of comparative analysis
advocated for by Nucor.” Def.’s Resp. Br. at 37. Yet, in direct contradiction to this point,
Commerce, immediately after rejecting GTA data, compared the reliability of GTA data with IEA
data. See Final Determination at 11–13.
30
$FFRUGLQJWR1XFRU+DEDúDSSOLHGWhe same density information to calculate natural gas price
for all countries, when each country has its own density rate. Nucor Rebuttal Br. at 10–11 (citing
Letter from Wiley Rein LLP to Sec. Commerce re: Rebuttal Information on Benchmark at Ex. 2,
PD 195, bar code 3607062-01 (Aug. 11, 2017)). ,QDGGLWLRQ1XFRUDOOHJHGWKDW+DEDúVHOHFWHG
a calorific value “plucked from thin air” and incorrectly applied that one value to natural gas from
DOOFRXQWULHVZKHQ³+DEDú¶RZQVXEPLVVLRQVKRZVWKDWWKHFDORULILc value of natural gas varies
by source.” Id. at 11.
Consol. Court No. 18-00144 Page 21
regarding the conversion of such data and Nucor’s rebuttal evidence. On remand,
Commerce should address the suitability of the conversion factors.
Although Commerce may have discretion to choose among imperfect data sets,
that choice must be explained. See CS Wind Vietnam Co., 832 F.3d at 1373. Here, “the
path of Commerce’s decision” is not reasonably discernable. Borusan Mannesmann Boru
Sanayi ve Ticaret A.ù. v. United States, 41 CIT __, __, 222 F. Supp. 3d 1255, 1266–67
(quoting NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319–20 (Fed. Cir. 2009)).
Commerce offered no further explanation as to why Russian Eurostat data was the best
available data and did not address detracting evidence on the record. Rather, Commerce
elevated the “availability” of the data source to the exclusion of other record evidence.
Given that Commerce failed to adequately explain its selection of Russian Eurostat
data for the tier two benchmark, its decision is also not in accordance with law. See SKF
USA Inc. v. United States, 263 F.3d 1369, 1378 (Fed. Cir. 2001). On remand, Commerce
should elaborate as to why, given the asserted flaws of each benchmark data source, the
choice of a tier two benchmark is nonetheless reasonable, and further, reconsider and
explain the basis of its selection of benchmark data.
CONCLUSION
In accordance with the foregoing, it is
ORDERED that Commerce’s final determination with respect to the selection of
benchmark data is remanded for further consideration consistent with this opinion; and it
is further
Consol. Court No. 18-00144 Page 22
ORDERED that Commerce’s final determination is sustained in all other respects;
and it is further
ORDERED that Commerce shall file its remand determination with the court within
60 days of this data; and it is further
ORDERED that the parties shall have 30 days thereafter to file comments; and it
is further
ORDERED that the parties shall have 15 days thereafter to file replies to
comments on the remand determination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: November 19, 2019
New York, New York