Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States

Slip Op. 21-100
UNITED STATES COURT OF INTERNATIONAL TRADE
+$%$ù6,1$,9(7,%%, GAZLAR
ISTIHSAL ENDÜSTRISI $ù,
Plaintiff,
v.
UNITED STATES,
Defendant,
and
REBAR TRADE ACTION COALITION,
Defendant-Intervenor.
Before: Judge Gary S. Katzmann
Court No. 20-00065
OPINION
[Plaintiff’s Motion for Judgment on the Agency Record is denied, and Commerce’s Final Results
are sustained.]
Dated: August 18, 2021
David L. Simon, Law Office of David L. Simon, of Washington, D.C., argued for plaintiff.
Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, D.C., argued for defendant. 	With her on the brief were Jeffrey Bossert
Clark, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim,
Assistant Director. 	Of Counsel Reza Karamloo, Senior Attorney, Office of Chief Counsel for
Trade Enforcement & Compliance, U.S. Department of Commerce.
Maureen E. Thorson, Wiley Rein LLP, of Washington, D.C., argued for defendant-intervenor.
With her on the brief were John R. Shane, Stephanie M. Bell, Jeffrey O. Frank, Cynthia A. Galvez,
and John Allen Riggins.
Katzmann, Judge: 	This case involves a challenge to the Department of Commerce’s
(“Commerce”) use of a tier-three benchmark in its determination of countervailing duties
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 1 of 20

Court No. 20-00065 	Page 2
(“CVD”s) in the administrative review of steel concrete reinforcing bar (“rebar”) from Turkey.
Steel Concrete Reinforcing Bar From the Republic of Turkey: Final Results of Countervailing
Duty Administrative Review; 2017, 85 Fed. Reg. 16,056 (Dep’t Commerce Mar. 20, 2020) (“Final
Results”) PR 147. 	Plaintiff +DEDú 6LQDL YH 7LEEL *D]ODU ,VWLKVDO (QGVWULVL $ù (“+DEDú”), a
Turkish rebar producer, specifically challenges Commerce’s selection of a tier-three benchmark
IRU+DEDú¶VSXUFKDVHVRIQDWXUDOJDVIURP7XUNLVKJRYHUQPHQW-RZQHGHQWLW\%RWDú+DEDúDUJXHV
that Commerce impermissibly rejected viable tier-two benchmarks, and that Commerce’s ultimate
calculation of a tier-three benchmark was arbitrary and capricious and unsupported by substantial
evidence. Pl.’s Mot. for J. on the Agency R. 23–33, Aug. 21, 2020, ECF No. 23 (“Pl.’s Br.”). The
court sustains Commerce’s Final Results.
BACKGROUND
I. 	Legal Background
A countervailable subsidy exists when (1) a government or public authority has provided
a financial contribution; (2) a benefit is thereby conferred upon the recipient of the financial
contribution; and (3) the subsidy is specific to a foreign enterprise or foreign industry, or a group
of such enterprises or industries. 19 U.S.C. § 1677(5). To empower Commerce to offset economic
distortions caused by countervailable subsidies, Congress promulgated the Tariff Act of 1930.
6LRX[+RQH\$VV¶QY+DUWIRUG)LUH,QV, 672 F.3d 1041, 1046–47 (Fed. Cir. 2012); ATC Tires
Private Ltd. v. United States, &,7 __, __, 322 F. Supp. 3d 1365, 1366 (2018). The Tariff Act
authorizes Commerce to investigate potential countervailable subsidies and, where such subsidies
are identified, issue orders on the subject merchandise imposing duties equal to the net
countervailable subsidies. 	Sioux Honey, 672 F.3d at 1046–47; ATC Tires, 322 F. Supp. 3d at
1366–67; 19 U.S.C. §§ 1671, 1673. Beginning on the anniversary of publication of a CVD order,
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 2 of 20

Court No. 20-00065 	Page 3
if Commerce has received a request for administrative review of that order, Commerce is required
to review and determine the amount of the countervailable subsidy at issue. 	19 U.S.C.
§ 1675(a)(1).
,Q GHWHUPLQLQJ ZKHWKHU D EHQHILW KDV EHHQ FRQIHUUHG XSRQ WKH UHFLSLHQW RI D ILQDQFLDO
contribution under 19 U.S.C. § 1677(5), Commerce considers (among other factors) whether a
good or service has been provided to the recipient for less-than-adequate remuneration (“LTAR”).
19 U.S.C. § 1677(5)(E)(iv); see also Nucor Corp. v. United States, 927 F.3d 1243, 1245 (Fed. Cir.
2019). To identify such benefits,
[T]he adequacy of remuneration shall be determined in relation to
prevailing market conditions for the good or service being provided
or the goods being purchased in the country which is subject to the
investigation or review. Prevailing market conditions include price,
quality, 	availability, 	marketability, 	transportation, 	and 	other
conditions of purchase or sale.
19 U.S.C. § 1677(5)(E)(iv). 	,Q SUDFWLFH Commerce determines if goods or services are being
provided for LTAR by conducting an analysis under 19 C.F.R. § 351.511. See Nucor Corp., 927
F.3d at 1246; 19 C.F.R. § 351.511(a)(2). Section 351.511 requires Commerce to follow a three-
tier analysis to identify a “suitable benchmark” that will be used to determine “the existence and
amount of a benefit conferred.” ArcelorMittal USA LLC v. United States, &,7BBBB337 F.
Supp. 3d 1285, 1291 (2018); see Essar Steel Ltd. v. United States, 678 F.3d 1268, 1273 (Fed. Cir.
2012) (“Commerce must determine the proper benchmark price in order to determine if the goods
were sold for ‘less than adequate remuneration.’”). 	Typically, Commerce employs a tier-one
benchmark by measuring the government price of the good or service against a “market-
determined price” based on “actual transactions in the country in question.” 	19 C.F.R. §
351.511(a)(2)(i). 	,I “there is no useable market-determined price” available for comparison,
Commerce employs a tier-two benchmark by measuring the government price against a “world
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 3 of 20

Court No. 20-00065 	Page 4
market price” that is “available to purchasers in the country in question.” 	19 C.F.R. §
351.511(a)(2)(ii). 	Where there is more than one commercially available world market price,
Commerce considers an average of the available world market prices. 	,G 	,IQHLWKHUDPDUNHW-
determined price nor a world market price is available, Commerce employs a tier-three benchmark
by evaluating whether the government price is “consistent with market principles.” 19 C.F.R. §
351.511(a)(2)(iii); see POSCO v. United States, 977 F.3d 1369, 1372 (Fed. Cir. 2020).
Commerce’s tier-three analysis 	considers 	“such factors 	as the government’s price-setting
philosophy, costs (including rates of return sufficient to ensure future operations), or possible price
discrimination.” Countervailing Duties, 63 Fed. Reg. 65,348, 65,378 (Dep’t Commerce Nov. 25,
1998). These factors are not hierarchical in application, and Commerce may rely on one or more
factors to calculate a tier-three benchmark in any particular case. ,G
II. 	Factual Background
On May 22, 2017 and July 14, 2017, respectively, Commerce published the CVD order
and amended CVD order on rebar from Turkey. 	Steel Concrete Reinforcing Bar From the
Republic of Turkey: Final Affirmative Countervailing Duty Determ., 82 Fed. Reg. 23,188 (Dep’t
Commerce May 22, 2017); Steel Concrete Reinforcing Bar From the Republic of Turkey: Am.
Final Affirmative Countervailing Duty Determ. and Countervailing Duty Order, 82 Fed. Reg.
32,531 (Dep’t Commerce Jul. 14, 2017) 	WRJHWKHU ³,QLWLDO 2UGHUV´ . 	Collectively, the ,QLWLDO
Orders set out Commerce’s determination that countervailable subsidies were being provided to
producers and exporters of Turkish rebar, and calculation of estimated net countervailable subsidy
UDWHVIRU+DEDúDQGRWKHUSURGXFHUV
On July 3, 2018, Commerce published a notice of opportunity to request administrative
review of WKH ,QLWLDO 2UGHUV for the period of March 1, 2017 through December 31, 2017.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 4 of 20

Court No. 20-00065 	Page 5
Antidumping or CouQWHUYDLOLQJ'XW\2UGHU)LQGLQJRU6XVSHQGHG,QYHVWLJDWLRQ2SSRUWXQLW\to
Request Administrative Review, 83 Fed. Reg. 31,121 (Dep’t Commerce Jul. 3, 2018)  +DEDú
timely submitted a request for review, and Commerce published a notice initiating its review of
+DEDú’s countervailable subsidy rates on September 10, 2018. 	Antidumping or Countervailing
'XW\ 2UGHU )LQGLQJ RU 6XVSHQGHG ,QYHVWLJDWLRQ 2SSRUWXQLW\ 7R 5HTXHVW Administrative
Review, 83 Fed. Reg. 31,121 (Dep’t Commerce Jul. 3, 2018). $W&RPPHUFH¶VUHTXHVW+DEDúDQG
WKH*RYHUQPHQWRI7XUNH\VXEPLWWHGTXHVWLRQQDLUHUHVSRQVHV6HFWLRQ,,,4XHVWLRQQDLUH5HVSRQVH
RI+DEDú6LQDLYH7LEEL*D]ODU,VWLKVDO(QGVWULVL$ù. (Apr. 15, 2019), P.R. 20, C.R. 6–17; Letter
from Ministry of Trade, Directorate Gen. for Exports, Republic of Turkey to Sec’y Commerce, re:
First Administrative Review of Countervailing Duty Order on Steel Concrete Reinforcing Bar
from Turkey: 4XHVWLRQQDLUH5HVSRQVHRIWKH*RYHUQPHQWRI7XUNey 35 (Apr. 15, 2019), P.R. 21–
42, C.R. 18–44 ³4XHVWLRQQDLUH5HVSRQVHRIWKH*RYHUQPHQWRI7XUNH\´ Rebar Trade Action
Coalition (“RTAC”) MRLQHGWKHDGPLQLVWUDWLYHUHYLHZLQLWLDWHGE\+DEDúDVDSHWLWLRQHUDQGRQ
$XJXVWERWK+DEDúDQG57$&VXEPLWWHGEHQFKPDUNSURSRVDOVWR&RPPHrce. Letter from
Wiley Rein LLP to Dep’t Commerce re RTAC Benchmark Submission, P.R. 79–81 (“RTAC
Submission”) /HWWHU IURP '/ 6LPRQ WR 'HS¶W &RPPHUFH UH +DEDú %HQFKPDUN 6XEPLVVLRQ
³+DEDú6XEPLVVLRQ´ , P.R. 76–79, C.R. 75–77. ,QUHOHYDQWSDUW+DEDú¶VEHQFKPDUNVXEPLVVLRQ
provided data from the United Nations Comtrade database on natural gas purchase prices in dollars
SHUNLORJUDPDQGSURSRVHGFRQYHUVLRQIDFWRUVIRUWKHFRQYHUVLRQRI+DEDú¶QDWXUDOJDVSXUFKDVHV
from cubic mHWHUVDQGNLORZDWWKRXUVWRNLORJUDPV+DEDú6XEPLVVLRQDW–+DEDú¶VVXEPLVVLRQ
also requested that Commerce employ the Comtrade data to calculate a tier-two benchmark based
on Russian natural gas prices and included additional data in support of Habaú¶VFRQWHQWLRQWKDW
Russian natural gas prices are market-driven, not politically determined, and are thus appropriate
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 5 of 20

Court No. 20-00065 	Page 6
for benchmark calculation. ,G at 3–7. RTAC’s benchmark submission provided natural gas price
GDWDIURPWKH,($along with source documentation and additional natural gas import data from
EurostatDQGUHTXHVWHGWKDW&RPPHUFHHPSOR\WKH,($GDWDLQLWVEHQFKPDUNFDOFXODWLRQV. RTAC
Submission at 1–2. %RWK+DEDúDQG57$&VXEVHTXHQWO\VXEPLWWHGEHQFKPDUNUHEXWWDOVLetter
from Wiley Rein LLP to Sec’y. of Commerce, re Steel Concrete Reinforcing Bar from Turkey:
RTAC’s Rebuttal Benchmark Submission (Aug. 19, 2019), P.R. 89–92 (“RTAC’s Rebuttal
Benchmark Submission”) /HWWHU IURP '/ 6LPRQ WR 'HS¶W &RPPHUFH UH +DEDú %HQFKPDUN
Rebuttal (Aug. 19, 2019), P.R. 88.
,Q September of 2019, Commerce issued its preliminary results of administrative review.
Steel Concrete Reinforcing Bar From the Republic of Turkey: Prelim. Results of Countervailing
Duty Administrative Review; 2017, 84 Fed. Reg. 48,583 (Dep’t Commerce Sept. 16, 2019), P.R.
115 (“Preliminary Results”); see also Mem. from J. Maeder to J. Kessler re Decision Mem. for the
Prelim. Results of the Countervailing Duty Administrative Review: Steel Concrete Reinforcing
Bar from the Republic of Turkey; 2017 (Dep’t Commerce Sept. 6, 2019), P.R. 106 (“PDM”). ,Q
the Preliminary Results and accompanying Preliminary Decision Memorandum, Commerce
preliminarily determined that +DEDú KDG EHHQ UHFHLYLQJ FRXQWHUYDLODEOH VXEVLGLHV through the
purchase of natural gas from %RWDúD state-owned natural gas company. Preliminary Results at
48,583; PDM at 8. 	,Q PDNLQJ LWV GHWHUPLQDWLRQ, Commerce undertook an LTAR analysis of
+DEDú¶V QDWXUDO JDV SXUFKDVHV IURP %RWDú SXUVXDQW WR  &)5  D (2)(ii) 	and
preliminarily found, consistent with its prior determinations, that (1) the only applicable tier-two
benchmark price for natural gas in Turkey is the price valid in countries “‘connected to Turkey
through natural gas pipelines’ (i.e. Russia, AzHUEDLMDQDQG,UDQ ´DQG  natural gas prices from
5XVVLDSURSRVHGE\+DEDúDVDWLHU-two benchmark, are distorted and therefore unsuitable for the
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 6 of 20

Court No. 20-00065 	Page 7
construction of a natural gas benchmark. 1 PDM at 10–11 (quoting Steel Concrete Reinforcing Bar
From the Republic of Turkey: Preliminary Results of Countervailing Duty Administrative Review
DQG,QWHQW7R5HVFLQGWKH5HYLHZLQ3DUW, 83 Fed. Reg. 63,472 (Dep’t Commerce Dec. 10,
2018), and accompanying Preliminary Decision Memorandum at 23). 	Accordingly, Commerce
concluded that no viable tier-two benchmarks were available on the record. 	,G at 12. 	Next,
Commerce preliminarily found the Comtrade GDWD VXEPLWWHG E\ +DEDú WR EH XQUHOLDEOH and
therefore unsuitable for the calculation of a tier-three natural gas benchmark. 	,G DW   ,Q
particular, Commerce explained that the Comtrade data were not accompanied by an underlying
document explaining the reporting, collection, and conversion of the data; that use of the Comtrade
data would require cRQYHUVLRQRI+DEDú¶VRZQQDWXUDOJDVSXUFKDVHGDWDDQGWKDWWKHComtrade
data were inconsistent with other data on the record. 	,G 	Commerce therefore rejected the
Comtrade data submitted by +DEDúDQG calculated a preliminary tier-three benchmark using the
,($GDWDVXEPLWWHGE\57$&
,Q March of 2020, Commerce issued its final results of administrative review, which
GHWHUPLQHG WKDW +DEDú UHFHLYHG FRXQWHUYDLODEOH VXEVLGLHV DQG reiterated the findings of the
Preliminary Results. 	Final Results. 2 	,QWKHDFFRPSDQ\LQJ ,VVXHVDQG'HFLVLRQ0HPRUDQGXP,
Commerce FRQFOXGHG WKDW WKH ,($ GDWD VXEPLWWHG E\ 57$& DUH ³DFFXUDWH DQG UHOLDEOH DQG
1 &RPPHUFHIXUWKHUQRWHGLQLWV3'0WKDWQHLWKHU$]HUEDLMDQLQRU,UDQLDQQDWXUDOJDVSULFHVZHUH
proposed during the course of the review as alternative tier-two benchmarks (whether by RTAC
RU+DEDú DQGWKDW$]HUEDLMDQLQDWXUDOJDVSULFHVKDG³SUHYLRXVO\>EHHQ@IRXQGWREHXQXVDEOHIRU
benchmark purposes.” PDM at 11.
2 A correction to the Final Results was subsequently issued, clarifying that the countervailable
subsidy rate set out in the Final Results LVDSSOLFDEOHWRERWK+DEDúDQGLWVFURVV-owned companies.
Steel Concrete Reinforcing Bar From the Republic of Turkey: Correction to Final Results of
Countervailing Duty Administrative Review; 2017, 85 Fed. Reg. 20,665 (Dep’t Commerce Apr.
14, 2020). For purposes of this opinion, “Final Results” refers to Commerce’s final determination
in toto, including the subsequent correction.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 7 of 20

Court No. 20-00065 	Page 8
RWKHUZLVHIUHHRIPHWKRGRORJLFDOXQFHUWDLQW\´DQGUHMHFWHG+DEDú¶Varguments to the contrary.
0HP WR - .HVVOHU IURP - 0DHGHU UH ,VVXHV DQG 'HFLVLRQ 0HP IRU WKH )LQDO 5HVXOWV RI
Countervailing Duty Administrative Review of Steel Concrete Reinforcing Bar from the Republic
of Turkey; 2017 14 (Dep’t Commerce Mar. 13, 202  35  ³,'0´  	Commerce further
concluded, in line with the PDM and Preliminary Results, that the Comtrade data provided by
+DEDúDUHXQUHOLDEOHDQGWKDW5XVVLDQQDWXUDOJDVSULFHVDUHGLVWRUWHGDQGFDQQRWEHXVHGDVD
EHQFKPDUN,'0DW–18.
III. 	Procedural History
2Q0DUFK+DEDúLQLWLDWHGWKHLQVWDQWFDVH6XPPRQV(&)1RThe following
day, +DEDútimely filed a complaint challenging Commerce’s Final Results. 	Compl., Mar. 27,
2020, ECF No. 10. The complaint alleged three specific objections to the Final Results: first, that
&RPPHUFH¶V XVH RI ,QWHUQDWLRQDO (QHUJ\ $JHQF\ ³,($´  WDEOHV DV D EHQFKPDUN IRU +DEDú¶V
natural gas purchase prices was unsupported by the record or otherwise unlawful; second, that
Commerce’s rejection of European Union (“EU”) natural gas import prices from Russia as a tier-
two or -three benchmark was unsupported by the record or otherwise unlawful; and three, that
Commerce’s rejection of EU natural gas import prices from Norway, Algeria, Libya, and Ukraine
as a tier-two or -three benchmark was unsupported by the record or otherwise unlawful. Compl.
at 5. On April 2, 2020, RTAC joined the action as Defendant-,QWHUYHQRU2UGHU*UDQWLQJ0RWWR
,QWHUYHQHDV'HI-,QWHU(&)1R2Q$XJXVW+DEDúILOHG a motion for judgment on
the agency record. Pl.’s Br. The United States (“Government”) filed a response on November 10,
2020, and RTAC filed a response on November 11, 2020. Resp. to Mot. for J. on Agency R., ECF
No. 26 (“Def.’s Br.”); Conf. Resp. to Mot. for J. on Agency R., ECF No. 27; Def.-,QWHU¶V5HVSWR
Mot. for J. on Agency R., ECF No. 28 (“Def.-,QWHU¶V%U´ 2Q'HFHPEHU+DEDúILOHG
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 8 of 20

Court No. 20-00065 	Page 9
its reply brief. Reply Br. of Pl. ECF No. 29 (“Pl.’s Reply”). On April 27, 2021, at the request of
the court, the parties filed supplemental briefs prior to oral argument. Conf. Resp. of Pl. to Court’s
Letter of Apr. 15, ECF No. 36; Resp. of Pl. to Court’s Letter of Apr. 15, ECF No. 37; Def.’s Resp.
to Court’s Apr. 15 Order, ECF No. 38; Def.-,QWHU¶V5HVSVWR4XHVWLRQVIRU2UDO$UJ&RQI(&)
No. 39; Def.-,QWHU¶V5HVSVWR4XHVWLRQVIRU2UDO$UJ(&)1R Oral argument was held on
0D\2UDO$UJ(&)1R+DEDúDQG57$&HDFKILOHGSRVW-argument briefs on May
26, 2021. 	Cmts. of Pl. Following Oral Arg., ECF No. 42; Post-Arg. Submission of Def.-,QWHU
Conf., ECF No. 43; Post-Arg. Submission of Def.-,QWHU(&)1R
-85,6',&7,21$1'67$1'$5'2)5(9,(:
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C.
†D D 	 	$ 	L 	, DQG D 	 	% 	LL 7KHVWDQGDUGRIUHYLHZLQ this action is set forth in 19
U.S.C. § 1516a(b)(l)(B)(i): “[t]he court shall hold unlawful any determination, finding or
conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” See also N.M. Garlic Growers Coal. v. United States, 953 F.3d 1358, 1368
(Fed. Cir. 2020). 	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, 305 U.S. 197, 299 (1938)). Support
from substantial evidence is satisfied by “less than the weight of the evidence but more than a mere
scintilla of evidence.” (OELW6\VWHPVRI$PHULFD//&Y7KDOHV9LVLRQL[,QF, 881 F.3d 1354,
1356 (Fed. Cir. 2018) (quoting ,QUH1XYDVLYH,QF, 842 F.3d 1376, 1379 (Fed. Cir. 2016)). “[T]he
possibility of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by substantial evidence.” AK Steel Corp.
v. United States, 192 F.3d 1367, 1371 (Fed. Cir. 1999) (alteration in original) (quoting Consolo v.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 9 of 20

Court No. 20-00065 	Page 10
Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966)). Rather, for the court to sustain the Final Results,
Commerce must simply demonstrate a “rational connection between the facts found and the choice
made.” Nucor Corp. v. United States&,7)6XSSG31–32 (2008)
(quoting %XUOLQJWRQ7UXFN/LQHV,QFY8QLWHG6WDWHV, 371 U.S. 156, 168 (1962)).
DISCUSSION
As set out above, +DEDú argues that Commerce’s Final Results are unsupported by
substantial evidence and not in accordance with law because (1) Commerce wrongly rejected the
Comtrade data on natural gas imports from Russia in calculating a tier-two benchmark IRU+DEDú¶V
natural gas purchase prices; (2) Commerce similarly wrongly rejected the Eurostat data on natural
gas imports from Russia in calculating a tier-two benchmark; and (3) Commerce wrongly rejected
the Eurostat data on natural gas import prices from Norway, Algeria, Libya, and Ukraine in
calculating a tier-three benchmark. 	Compl. at 5. 	7KH FRXUW ILQGV WKDW FRQWUDU\ WR +DEDú¶V
allegations, Commerce’s Final Results are supported by substantial evidence and in accordance
with law.
I. 	Commerce Reasonably Determined There Were No Data on the Record Suitable
for the Calculation of a Tier-Two Benchmark.
Where the record cannot support calculation of a tier-one benchmark, Commerce is
permitted to employ a tier-two benchmark in its LTAR analysis. 	19 C.F.R. § 351.511(a)(2)(i)–
(ii). To calculate a tier-two benchmark, Commerce must rely on a world market price that is both
“available to purchasers in the country in question,” pursuant to 19 C.F.R. § 351.511(a)(2)(ii), and
reliable based on the evidence in the record. 3 See 49')RRG&R/WGY8QLWHG6WDWHV, 658 F.3d
3 ,WLVXQGLVSXWHGWKDW&RPPHUFHFRXOGQRWGHWHUPLQHDWLHU-one benchmark based on the evidence
on the record. See Pl.’s Br. at 5 (“[T]he parties agree that there is no tier-one benchmark.”); Def.’s
Br. at 8 	³>+DEDú@ GRHV QRW FKDOOHQJH &RPPHUFH¶V ILQGLQJ that there were no usable tier-one
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 10 of 20

Court No. 20-00065 	Page 11
1318, 1325–26 (Fed. Cir. 2011) (sustaining Commerce’s decision to reject appellant’s more recent
financial statements because evidence on the record “undermined the reliability of the data”); see
also Archer Daniels Midland Co. v. United States&,7–71, 917 F. Supp. 2d 1331,
1343 (2013) (upholding Commerce’s decision to utilize tier-two prices when reliable tier-one
prices are unavailable). For a tier-two benchmark to be sustained by the court, it must be supported
by sufficient evidence for there to be a reasonable connection between the evidence in the record
and Commerce’s conclusion. See Nippon Steel Corp., 337 F.3d at 1379.
+DEDúDOOHJHVWKDWthe evidence on the record was adequate for the calculation of a tier-two
benchmark, and that Commerce was therefore obligated, pursuant to 19 C.F.R. § 351.511(a)(2)(ii),
to employ a tier-two benchmark in its LTAR analysis. Pl.’s Br. at 5. +DEDúVSHFLILFDOO\DUJXHV
that Commerce erred by rejecting its proffered Comtrade data, and by failing to consider the
Eurostat data also on the record as a potential tier-two benchmark. 	,G 	The Government and
RTAC respond that Commerce permissibly rejected the Comtrade and Eurostat data, and
reasonably determined that there were no viable tier-two benchmarks available for its LTAR
analysis. 	Def.’s Br. at 6–7; Def.-,QWHU¶V %U DW–9. 	The court concludes that Commerce’s
determination, and its rejection of the Comtrade and Eurostat data, was supported by substantial
evidence and in accordance with law.
A. 	Commerce 	Reasonably 	Determined 	that 	the 	Comtrade 	Data 	Are
Unsuitable for the Calculation of a Tier-Two Benchmark.
Commerce rejected +DEDú¶VComtrade submission as unreliable for three reasons. First,
Commerce noted that “there is no explanation of the methodology used to calculate the
COMTRADE data or the methodology the original sources (i.e., each country) used to collect the
prices.”) (citing Pl.’s Br. at 5). The court therefore only considers the parties’ arguments regarding
the calculation of tier-two and tier-three benchmarks.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 11 of 20

Court No. 20-00065 	Page 12
data.´,'0DW 24. This includes whether the data were in fact initially collected in kilograms or
whether they were converted post hac, thereby risking varying conversion amounts due to
temperature and density factors. 	,G 	Second, Commerce explained that, because the Comtrade
data are UHSRUWHGLQNLORJUDPVDQG+DEDú¶VRZQGDWDare reported in a price per unit of energy
basis, using the Comtrade data in an LTAR analysis would require conversion and would further
risk varying conversion amounts. 	,G 	Finally, Commerce noted that the Comtrade data were
distorted by the inclusion of Russian export prices, which are themselves distorted by the
Government of Russia’s “monopoly over the sales and distribution of natural gas” domestically,
and its “position as a dominant supplier in the international market, which enables it to leverage
natural gas prices and supplies for geopolitical purposes.” 	,G at 25 (citing Steel Concrete
Reinforcing Bar From the Republic of Turkey; 2016, 83 Fed. Reg. 63,472, and accompanying
Preliminary Decision Memorandum at 22).
Commerce’s rejection of the Comtrade data is supported by substantial evidence and in
accordance with law. First addressing Commerce’s collection methodology and conversion-factor
concerns, the court concludes that Commerce reasonably determined that the data were unreliable
for purposes of an LTAR analysis. Commerce is correct that the record provides no explanation
of the initial collection and conversion of the Comtrade data. ,'0DW'HI¶V%UDW Despite
+DEDú¶V DVVHUWLRQV WR WKH FRQWUDU\ WKH court agrees with the Government and RTAC that the
explanatory documentation accompanying the Eurostat data cannot be imputed wholesale to the
Comtrade data without more evidence, and without an explanation of the various discrepancies
between the two datasets. Pl.’s Br. at 26–28; Def.’s Br. at 12; Def.-,QWHU¶V%UDW–10. Nor is the
court persuaded E\+DEDú¶VDUJXPHQWWKDW&RPPHUFHKDVSUHYLRXVO\HPSOR\Hd Comtrade data in
its investigations regarding non-natural gas products, and should therefore do so here: rather, “each
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 12 of 20

Court No. 20-00065 	Page 13
administrative review is a separate exercise of Commerce’s authority that allows for different
conclusions based on different facts in the record.” 	4LQJGDR 6HD-Line Trading Co. v. United
States, 766 F.3d 1378, 1387 (Fed. Cir. 2014); see also Def.’s Br. at 12. 	Here, Commerce has
reasonably differentiated its review by explaining that an understanding of data-reporting and
conversion methodology is “particularly important for a good such as natural gas, where
FRQYHUVLRQUDWHVFDQYDU\EDVHGRQIDFWRUVVXFKDVSUHVVXUHDQGWHPSHUDWXUH´,'0DWGiven
that there is no evidence in the record regarding the collection or reporting of the Comtrade data,
and that Commerce has clearly explained its reasons for requiring documentation of the collection
and conversion of any tier-two benchmark data, the court concludes that “the record adequately
supports” Commerce’s decision that the Comtrade data were unreliable. 	Daewoo Elecs. Co. v.
,QW’l Union of Elec., Elec., Technical, Salaried & Mach. Workers, AFL–&,2, 6 F.3d 1511, 1520
(Fed. Cir. 1993); see also 'HI¶V%UDW,'0DW
Even if Commerce’s collection methodology and conversion-factor concerns were not
adequate basis for its rejection of the Comtrade data, its determination that the data were unreliable
due to distortion by Russian natural gas export prices is supported by substantial evidence and in
accordance with law. 	Commerce’s decision to reject Russian pricing data is supported by the
record: in its rebuttal benchmark submission, RTAC provided evidence of Russian price distortion
in the form of a study from the European Parliament and a collection of additional publications.
See RTAC’s Rebuttal Benchmark Submission at Exhibits 3–10. 	Commerce explicitly weighed
57$&¶VVXEPLVVLRQVDJDLQVWWKHHYLGHQFHVXEPLWWHGE\+DEDú and determined that “due to the
[Government of Russia’s] practice of distorting the natural gas market for its own geopolitical
purposes, Russian export prices are unsuitable for use in constructing” a tier-WZREHQFKPDUN,'0
at 25–26. Furthermore, as the Government notes, the court has previously sustained Commerce’s
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 13 of 20

Court No. 20-00065 	Page 14
decision to reject Russian natural gas prices for the purposes of benchmark calculation because the
Russian prices were distorted by the Russian Government’s political pricing. ,'0DWDef.’s
Br. at 8–9 (“This Court has previously sustained Commerce’s decision to reject using Russian
natural gas prices as a benchmark because those figures were distorted.” (first citing Rebar Trade
Action Coal. v. United States, &,7BBBB398 F. Supp. 3d 1374, 1378–79 (2019) (“RTAC”);
and then citing +DEDú6LQDL9H7LEEL*D]ODU,VWLKVDO(QGVWULVL $ùY8QLWHG6WDWHV&,7BB
__, 459 F. Supp. 3d 1341, 1347–49 (2020) (“+DEDú”))). Given the foregoing, the court concludes
that Commerce’s rejection of the Comtrade data for purposes of calculating a tier-two LTAR
benchmark is supported by substantial evidence and in accordance with law.
B. 	Commerce 	Reasonably 	Determined 	that 	the 	Eurostat 	Data 	Are
Unsuitable for the Calculation of a Tier-Two Benchmark.
Commerce rejected the Eurostat data for largely the same reasons it rejected the Comtrade
data. 	First, Commerce noted that there is no record evidence suggesting the Eurostat data are
unconverted (i.e., reported natively in kilograms), and there is therefore a risk of varying
conversion factors both in the potential conversion of the initial data to kilograms, and in the
FRQYHUVLRQRIWKHFROOHFWHGGDWDWRSULFHSHUXQLWRIHQHUJ\IRUWKH/7$5DQDO\VLV,'0DW
Second, Commerce determined that the Eurostat data were distorted by the inclusion of distorted
Russian export pricing data. Def.’s Br. at 9, PDM at 11–,'0DW–26.
The court concludes that Commerce’s rejection of the Eurostat data for purposes of
calculation of a tier-two benchmark is supported by substantial evidence and in accordance with
law. 	As noted above, Commerce adequately explained its determination that data requiring
FRQYHUVLRQLVXQVXLWDEOHIRULQYHVWLJDWLRQRIWKHSURYLVLRQRIQDWXUDOJDVIRU/7$5,'0DW
Furthermore, 	Commerce’s 	determination 	that 	Russian 	pricing 	data 	are 	distorted 	by 	the
manipulation of the Russian government is supported by evidence on the record and in line both
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 14 of 20

Court No. 20-00065 	Page 15
with prior determinations by Commerce and with prior GHFLVLRQVRIWKHFRXUW,'0DW'HI¶V
Br. at 8–9; RTAC, 398 F. Supp. 3d at 1378-79; +DEDú, 459 F. Supp. 3d at 1347-49.
Nor is the court persuaded by +DEDú¶V DUJXPHQW WKDW &RPPHUFH IDLOHG WR FRQVLGHU WKH
Eurostat data as a potential tier-two benchmark. 	Pl.’s Br. at 22, 28. 	Commerce explicitly
considered “the suitability of COMTRADE and Eurostat data” in the ,ssues and Decision
Memorandum accompanying its Final Results,'0DWCommerce nevertheless rejected the
data after determining it was unsuitable for the calculation of a tier-two benchmark for the reasons
described above. Accordingly, the court concludes that Commerce’s rejection of the Eurostat data
is supported by substantial evidence and in accordance with law.
II. 	Commerce’s Calculation of a Tier-Three Benchmark Using the IEA Data Was
Supported by Substantial Evidence and In Accordance With Law.
Where the record cannot support calculation of a tier-two benchmark, Commerce is
permitted to employ a tier-three benchmark in its LTAR analysis. 19 C.F.R. § 351.511(a)(2)(ii)–
(iii). To calculate a tier-three benchmark, Commerce “measure[s] the adequacy of remuneration
by assessing whether the government price is consistent with market principles.” 19 C.F.R. §
351.511(a)(2)(iii). For a tier-three benchmark to be sustained by the court, it must be supported
by “such 	relevant 	evidence 	as 	a 	reasonable 	mind 	might 	accept 	as 	adequate to 	support
[Commerce’s] conclusion.” Nippon Steel Corp., 337 F.3d at 1379 (quoting Consol. Edison Co.,
305 U.S. at 299).
+DEDú DOOHJHV WKDW, even if it were appropriate for Commerce to employ a tier-three
benchmark, Commerce’s selection of a tier-three benchmark was unsupported by substantial
evidence and not in accordance with law. Pl.’s Br. at 33. +DEDúfirst argues that Commerce erred
by failing to consider Eurostat data for countries other than Russia (namely, Algeria, Libya,
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 15 of 20

Court No. 20-00065 	Page 16
Norway and Ukraine) as a potential tier-three benchmark. 4 ,G at 34. +DEDúWKHQDUJXHVWKDWWKH
,($GDWDare fatally flawed because they are “not restricted to natural gas in its gaseous form, but,
rather, encompass liquid natural gas as well” and are WKHUHIRUH QRW FRPSDUDEOH WR +DEDú¶V
purchases of gaseous natural gas. 	,G at 35. 	)LQDOO\ +DEDú DUJXHV WKDW WKH ³PXOWLWXGH RI
DGMXVWPHQWV WKDW &RPPHUFH KDG WR PDNH WR WKH ,($ ILJXUHV,” along with its annual reporting,
UHQGHUWKH,($GDWDXQVXLWDEOHIRUEenchmark calculation. ,G at 38. The Government and RTAC
respond that Commerce permissibly rejected the Eurostat data for purposes of tier-three
benchmark calculation because of the conversion issues inherent in that data. 	Def.’s Br. at 15;
Def.-,QWHU¶s Br. at 15. The Government further responds that Commerce explicitly adjusted the
,($ GDWD WR LQFOXGH RQO\ JDVHRXV QDWXUDO JDV SULFHV. 	Def.’s Br. at 16. 	RTAC also notes that
+DEDú¶VRZQQDWXUDOJDVSXUFKDVHVDUHFRPSDUDEOHWRWKHQDWXUDOJDVSXUFKDVHVrecorded by the
,($GDWD3RVW-Arg. Submission of Def.-,QWHUDWFinally, the Government and RTAC respond
WKDWWKHDGMXVWPHQWV&RPPHUFHPDGHWRWKH,($GDWDZHUHUHDVRQDEOH and increased the overall
accuracy of the data, and that the more-frequent reporting of the Comtrade and Eurostat data cannot
outweigh their overall unreliability. 	Def.’s Br. at 16–17; Def.-,QWHU¶V%UDW16–17. 	The court
concludes that Commerce’s UHOLDQFHRQWKH,($GDWDIRUWKHFDOFXODWLRQRIDWLHU-three benchmark,
and its rejection of the non-Russian Eurostat data, was supported by substantial evidence and in
accordance with law.
For the same reasons set out above, Commerce reasonably found that the Eurostat data
(and indeed, the Comtrade data) were unsuitable for the calculation of a tier-three benchmark. The
record clearly shows that Commerce determined that both the Comtrade and Eurostat data were
4 $OWKRXJK+DEDúIXUWKHUDUJXHVWKDW(XURVWDW¶V5XVVLDQLPSRUW pricing data could provide a viable
tier-WKUHH EHQFKPDUN WKH FRXUW UHMHFWV WKLV DUJXPHQW IRU WKH UHDVRQV VHW IRUWK LQ 6HFWLRQ , and
declines to further discuss Russian pricing data here. See, e.g., Pl.’s Br. at 22.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 16 of 20

Court No. 20-00065 	Page 17
unreliable because the conversion from kilograms to price per energy units risks varying
FRQYHUVLRQDPRXQWVGXHWRWHPSHUDWXUHDQGGHQVLW\IDFWRUV,'0DW24–25; Def.’s Br. at 15; Def.-
,QWHU¶V%UDW7KH&RPWUDGHGDWDDOWKRXJKnot emphasized as a potential tier-three benchmark
LQ+DEDú¶VEULHILQJLVIXUWKHUunsuitable because there is no explanation on the record of data the
collection methodology employed by the participating countries. See ,'0DW'HI¶V%UDW
As the court has previously stated, “Commerce must justify why the data set it chooses is
appropriate” -- and Commerce has explicitly done so here. Dorbest Ltd. v. United States&,7
1671, 1717, 462 F. Supp. 2d 1262, 1302 (2006). Therefore, regardless of whether Commerce were
to consider Russian export pricing data or data sourced from EU natural gas imports from Algeria,
Libya, Norway and Ukraine, the court concludes that Commerce’s rejection of the Comtrade and
Eurostat data for purposes of tier-three benchmark calculation is supported by substantial evidence
and in accordance with law.
&RPPHUFH¶VXVHRIWKH,($GDWDWRFDOFXODWHDWLHU-three benchmark is also supported by
substantial evidence and in accordance with law. 	&RQWUDU\ WR +DEDú¶V DVVHUWions, there is no
HYLGHQFHWKDW&RPPHUFHIDLOHGWRFRQVLGHU DQGDGMXVWIRU WKH,($GDWDVHW¶VLQFOXVLRQRIOLTXLG
QDWXUDO JDV SULFLQJ GDWD DV ZHOO DV JDVHRXV QDWXUDO JDV SULFLQJ GDWD  5DWKHU WKH ,($ GDWD
Commerce relied upon for purposes of its tier-three benchmark calculation included only “end-
use” pricing data: in other words, data regarding the sale price of natural gas when it is sold to
XOWLPDWH FRQVXPHUV  ,'0 DW  'HI¶V %U DW –16. 	As the Government notes in its brief,
“liquefied natural gas is not a product purchased by companies and households for their own
energy consumption purposes,” -- thus, liqueILHGQDWXUDOJDVLVLQKHUHQWO\H[FOXGHGIURPWKH,($
data considered by Commerce in its tier-three benchmark calculation. Def.’s Br. at 16.
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 17 of 20

Court No. 20-00065 	Page 18
+DEDúfurther argues that the end-use, gaseous natural gas is comprised of both gaseous
natural gas imports and re-gasified liquid natural gas imports and is therefore unsuitable for
comparison purposes under 19 C.F.R. § 351.511(a)(2)(iii). However, there is no clear regulatory
requirement that Commerce consider “product similarity; quantities sold, imported, or auctioned;
and other factors affecting comparability,” as in a tier-one analysis, or “[make] due allowance for
factors affecting comparability,” as in a tier-two analysis, for purposes of its tier-three analysis.
19 C.F.R. § 351.511(a)(2)(i)–(ii). 	Rather, Commerce is only expressly required by 19 C.F.R. §
351.511 to consider price comparability when conducting a tier-one or tier-two analysis. ,G ,Q
any case, even if such requirement were imputed to Commerce’s tier-three analysis, it is likely
satisfied here. 	The Government of Turkey acknowledged in its submissions to Commerce that
%RWDúSURYLGHVHQG-use consumers with a commingled product of gaseous and re-gasified natural
gas. 4XHVWLRQQDLUH5HVSRQVHRIWKH*RYHUQPHQWRI7XUNey at 35; Post-Arg. Submission of Def.-
,QWHU DW , 12. 	+DEDú¶V SXUFKDVH GDWD DQG WKH ,($ SULFLQJ GDWD WKHUHIRUH UHODWH WR GLUHFWO\
comparable products. Accordingly, the court UHMHFW¶V+DEDú¶VDVVHUWLRQVWKDWE\FDOFXODWLQJDWLHU-
WKUHH EHQFKPDUN EDVHG RQ WKH ,($ GDWD &RPPHUFH IDLOHG WR FRPSO\ ZLWK WKH FRPSDUDELOLW\
requirements of 19 C.F.R. § 351.511.
Nor is the court persuaded E\ +DEDú¶V DUJXPHQWV WKDW WKH ,($ GDWD are insufficiently
accurate. Pl.’s Br. at 38. +DEDúasserts that Commerce’s adjustments to the ,($ data, among them
“indexing, averaging between values for industrial users and electricity generators, [and]
constructing a framework to ‘eliminate’ the impact of Russian figures from the data, etc.” render
the data unreliable for a tier-three determination because “[e]ach of these adjustments introduces
an approximation into the benchmark, taking it further away from empirical accuracy.” ,G at 38–
39. HaEDúIXUWKHUDUJXHVWKDWWKHDQQXDOO\-UHSRUWHG,($GDWDfails to comply with Commerce’s
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 18 of 20

Court No. 20-00065 	Page 19
stated preference for monthly data, and therefore fail to account for the volatility of the energy
market. ,G,'0DW +DEDúconcludes that the ,($GDWDare inaccurate and unsuitable for the
calculation of a tier-three benchmark. Pl.’s Br. at 38. These arguments are unavailing because, as
&RPPHUFHH[SODLQHG³WKHEHVWDYDLODEOHLQIRUPDWLRQ>RQWKHUHFRUG@LVLQWKH,($UHSRUW´,'0
at 26. 	Specifically, ComPHUFHFRQFOXGHGWKDWWKH,($GDWDZHUHWKHPRVWUHOLDEOHGDWDRQWKH
record because the Comtrade and Eurostat data required the conversion of kilograms to price per
energy units whereas the adjustments required by the ,($ GDWD involved no conversions, and
EHFDXVHWKH,($H[SUHVVO\UHFRJQL]HVYRODWLOLW\FRQFHUQV,'0DW Commerce further stated
that its preference for monthly data was “superseded by the need to select the best available
information on the record for purposes of determining a benchmark.” 5 ,'0DW&RPPHUFHKDV
therefore SURYLGHGDUHDVRQDEOHH[SODQDWLRQIRULWVUHOLDQFHRQWKH,($GDWDDQGGHVSLWH+DEDú¶V
disagreement, “the possibility of drawing two inconsistent conclusions from the evidence does not
prevent an administrative agency’s finding from being supported by substantial evidence.” AK
Steel Corp., 192 F.3d at 1371. Accordingly, given its conclusion that the other data on the record
were unsuitable for the calculation of a tier-three benchmark, the court concludes that Commerce
UHDVRQDEO\UHOLHGXSRQWKH,($GDWDLQFDOFXODWLQJDWLHU-three benchmark.
CONCLUSION
Based on the evidence in the record, Commerce reasonably rejected the Comtrade and
Eurostat data on natural gas imports from Russia in calculating a tier-two benchmark for its LTAR
5 Nor is Commerce precluded from relying on annual benchmarks. Def.’s Br. at 17; Steel Concrete
Reinforcing 	Bar 	from 	the 	Republic 	of 	Turkey: 	Final 	Affirmative 	Countervailing 	Duty
Determination, 82 Fed. Reg. 23,188 (Dep’t Commerce May 15, 2017) DQGDFFRPSDQ\LQJ,VVXHV
and Decision Memorandum; see also Rebar Trade Action Coal. v. United States&,7BBBB
389 F. Supp. 3d 1371, 1383 (2019), aff’d, +DEDV6LQDL9H7LEEL*D]ODU,VWLKVDO(QGXVWULVL$6Y
United States, 992 F.3d 1348 (Fed. Cir. 2021)).
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 19 of 20

Court No. 20-00065 	Page 20
analysis of +DEDú¶VQDWXUDOJDVSXUFKDVHSULFHV, reasonably rejected the Eurostat natural gas import
data from Norway, Algeria, Libya, and Ukraine in calculating a tier-three benchmark, and
UHDVRQDEO\ UHOLHG XSRQ WKH ,($ GDWD LQ FDOFXODting its ultimate tier-three benchmark. 	For the
foregoing reasons, Commerce’s Final Determination is sustained.
SO ORDERED.
/s/ 	Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: August 18, 2021
New York, New York
Case 1:20-cv-00065-GSK Document 46 Filed 08/18/21 Page 20 of 20