Colakoglu Metalurji A.S. et al v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
,d'$ù&(/,.(1(5-,7(56$1(9(
ULASIM SANAYI A.S.,
Plaintiff,
and
d2/$.2ö/80(7$/85-,$6 	
d2/$.2ö/8',67,&$5(7$6
³d2/$.2ö/8´
Consolidated Plaintiffs,
v.
THE UNITED STATES,
Defendant,
and
REBAR TRADE ACTION COALITION,
Defendant-Intervenor.
%HIRUH*DU\6.DW]PDQQ-XGJH
Consol. CoXUW1R19-00149
PUBLIC VERSION
OPINION
[The court sustains Commerce’s Final Results and denies Plaintiffs’ motion for judgment on the
agency record challenging the final affirmative determination.]
Dated: February 19, 2021
Matthew M. Nolan, Arent Fox LLP, of Washington, DC, argued for plaintiff and consolidated
plaintiffs. With him on the brief were Leah Scarpelli and Natan P.L. Tubman.
Ann C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, DC, argued for defendant. 	With her on the brief were Joseph H. Hunt,
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. 	With them on the post argument
submission was Jeffrey Bossert Clark, Acting Assistant Attorney General.
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Maureen E. Thorson, Wiley Rein, LLP, of Washington, DC, argued for defendant-intervenor.
With him on the brief were Alan H. Price and John R. Shane.
Katzmann, Judge: Under American law, to promote fair trade in the domestic market for
American 	goods, 	the 	United 	States 	Department 	of 	Commerce 	(“Commerce”) 	conducts
investigations to determine whether foreign exporters and manufacturers are introducing products
into the American market for below-market prices due to subsidies given by foreign governments.
Commerce can offset those prices by imposing countervailing duties (“CVD”). This case presents
a number of questions relating to Commerce’s CVD determination regarding steel concrete
reinforcing bar (“rebar”) from Turkey. Did a foreign exporter and manufacturer cooperate with
Commerce’s investigation to the best of its ability? 	Was the manufacturer’s “corrective”
submission improperly rejected by Commerce? 	Did that exporter and manufacturer receive
benefits, in a variety of forms, constituting subsidies triggering the imposition of duties under
American law? 	PlaLQWLII ,oGDú &HOLN (QHUML 7HUVDQH YH 8ODVLP 6DQD\L $6 ³,oGDú´  DQG
Consolidated-3ODLQWLIIdRODNR÷OX0HWDOXUML$6DQGdRODNR÷OX'LV7LFDUHW$6 ³dRODNR÷OX´ 
foreign manufacturers and exporters of steel rebar from Turkey (collectively, “Plaintiffs”) have
initiated this suit against Defendant the United States (“Government”) to challenge these and other
aspects of Commerce’s final results in the administrative review of the CVD order on Steel
Concrete Reinforcing Bar From the Republic of Turkey. Steel Concrete Reinforcing Bar from the
Republic of Turkey: Final Results and Partial Rescission of Countervailing Duty Administrative
Review; 2016, 84 Fed. Reg. 36,051 (Dep’t Commerce July 26, 2019) (“Final Results”).
Commerce’s investigation resulted in a final determination that imports of rebar from
Turkey produced by ,oGDúZere appropriately subject to CVD under Section 751 of the Tariff Act
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PUBLIC VERSION
of 1930 as amended, 19 U.S.C. § 1675 1 . Final Results, 84 Fed. Reg. at 36,052; see also Issues and
Decision Mem. (Dep’t Commerce July 18, 2019) (“IDM”), P.R. 323. Commerce IRXQGWKDW,oGDú
benefited from reduced customs duties, VAT exemptions, and access to reduced-cost natural gas
as a result of the general incentives scheme (“GIIS”) program covering the construction of two
SRZHU SODQWV E\ ,oGDú DQG an affiliated company ,oGDú (OHNWULN. 	IDM at 34–38. 	Commerce
DGGLWLRQDOO\ GHWHUPLQHG WKDW WKH *,,6 SURJUDP EHQHILWV UHFHLYHG E\ ,oGDú ZHUH FRQWLQJHQW
liabilities subject to the International Monetary Fund (“IMF”) benchmark interest rate, and found
that no usable tier-two natural gas benchmark information was available, resorting instead to a
tier-WKUHHEHQFKPDUNWRGHWHUPLQHZKHWKHUQDWXUDOJDVZDVSURYLGHGWRdRODNR÷OXIRUOHVVWKDQ
adequate remuneration. Id. at 37–38; 16–21. Finally, Commerce applied adverse facts available
(“AFA”) WR,oGDú¶VUHSRUWHGVDOHVGHQRPLQDWRULQUHVSRQVHWRLWVLQDFFXUDWHUHSRUWLQJRILWVWRWDO
sales denominator. Id. at 28–29. Plaintiffs now appeal Commerce’s Final Results. Pls.’ Mot. For
J. on the Agency R. and Supp. Opening Br. at 1–2, Feb. 14, 2020, ECF No. 26 (“Pls.’ Br.”). The
Government, joined by Defendant-Intervenor Rebar Trade Action Coalition (“RTAC”), supports
Commerce’s determination. 	Def.’s Resp. in Opp’n to Pl’s Mot. For J. on Agency R., June 11,
2020, ECF No. 32 (“Def.’s Br.”); Def.-Inter. Resp. in Opp’n to Pl’s Mot. For J. on Agency R.,
June 11, 2020, ECF No. 33 (“Def.-Inter.’s. Br.”).
The court concludes that Commerce’s determinations were in accordance with law and
based on substantial evidence. 	Therefore, the court denies Plaintiffs’ challenge to Commerce’s
determination and sustains Commerce’s Final Results.
1 All citations to the United States Code are to the 2012 edition.
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PUBLIC VERSION
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I. 	Legal Background
The Tariff Act of 1930 was enacted to empower Commerce to address trade distortions
caused by unfair economic practices. 	In particular, it provides for the investigation of potential
subsidization and the imposition of duties on subject merchandise. Sioux Honey Ass’n v. Hartford
Fire Ins. Co., 672 F.3d 1041, 1046–47 (Fed. Cir. 2012); see also Bebitz Flanges Works Pvt. Ltd.
v. United States, 44 CIT __, __, 433 F. Supp. 3d 1309, 1314 (2020). 	These CVD actions are
intended to be remedial rather than punitive in nature, Chaparral Steel Co. v. United States, 901
F.2d 1097, 1103 (Fed. Cir. 1990), and it is therefore Commerce’s duty to determine rates as
accurately as possible, Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990).
In order to impose duties under Section 701 of the Tariff Act of 1930, Commerce must first
find the existence of a countervailable subsidy. A countervailable subsidy is one which satisfies
the following elements: (1) a government or public authority has directly or indirectly 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. 	See 19 U.S.C. § 1677(5)(A)–(B); see also 19 U.S.C. §§
1677(5)(D)–(E), (5A). 	If Commerce determines that a foreign government is providing a
countervailable subsidy with respect to the manufacture, production, or export of a class or kind
of merchandise imported, sold, or likely to be sold for import into the United States, and the
International Trade Commission determines that an industry in the United States is materially
injured or threatened with material injury thereby, Commerce is then required by statute to impose
a CVD upon such merchandise equal to the amount of the net countervailable subsidy. 	See 19
U.S.C. § 1677(5).
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A countervailable subsidy provides a benefit where it results in the provision of goods or
services for less than adequate remuneration. 19 U.S.C. § 1677(5)(E)(iv). To identify such benefit,
[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.
Id. 	In practice, Commerce applies a three-tier framework to determine the adequacy of
remuneration. 	See 19 C.F.R. § 351.511. 	Under tier one, Commerce compares the actual
remuneration for the provided goods and services with the market price of those goods or services
within the country under investigation. 19 C.F.R. § 351.511(a)(2)(i). If Commerce cannot identify
a usable market price within the country under investigation, it applies a tier two benchmark.
Under tier two, Commerce compares actual remuneration with the average world market price
available to purchasers in the country under investigation. 19 C.F.R. § 351.511(a)(2)(ii). If neither
tier one nor tier two market prices are available, Commerce applies a tier three benchmark, and
“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).
To be specific to an enterprise or industry, a countervailable subsidy must exhibit either de
jure or de facto specificity. See 19 U.S.C. § 1677(5A). A subsidy is de jure specific where the
authority providing the subsidy, or its authorizing legislation, expressly limits access to the subsidy
to an enterprise or industry. See 19 U.S.C. § 1677(5A)(D)(i). To avoid a designation of de jure
specificity, the administering authority must ensure that access to the subsidy is governed by
objective industry- or enterprise-neutral criteria resulting in automatic eligibility, and that the
criteria for eligibility are both strictly followed and clearly set forth in the relevant official
materials so as to be verifiable. See 19 U.S.C. § 1677(5A)(D)(ii). A subsidy that escapes de jure
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PUBLIC VERSION
specificity may nevertheless be designated de facto specific if one or more of the following factors
exist: (1) the actual recipients of the subsidy, whether considered on an enterprise or industry basis,
are limited in number; (2) an enterprise or industry is a predominant user of the subsidy; (3) an
enterprise or industry receives a disproportionately large amount of the subsidy; or (4) the manner
in which the authority providing the subsidy has exercised discretion in the decision to grant the
subsidy 	indicates 	that 	an 	enterprise 	or 	industry 	is 	favored 	over 	others. 	19 	U.S.C. 	§
1677(5A)(D)(iii)(I)–(IV).
In determining whether a countervailable subsidy is provided to the manufacture of the
subject merchandise, Commerce may issue questionnaires to selected mandatory respondents 2 in
order to gather information for its review. See 19 U.S.C. § 1677f-1(c)(2). Pursuant to 19 U.S.C.
§ 1677e, if a party fails to satisfactorily respond to Commerce’s requests for “necessary
information” to calculate a dumping margin by (1) withholding requested information, (2) failing
2 In CVD investigations or administrative reviews, Commerce may select mandatory respondents
pursuant to 19 U.S.C. § 1677f–1(e)(2), which provides:
If the administering authority determines that it is not practicable to determine
individual countervailable subsidy rates under paragraph (1) because of the large
number of exporters or producers involved in the investigation or review, the
administering authority may—
(A) determine individual countervailable subsidy rates for a reasonable
number of exporters or producers by limiting its examination to—
(i) a sample of exporters or producers that the administering authority
determines is statistically valid based on the information available to the
administering authority at the time of selection, or
(ii) exporters and producers accounting for the largest volume of the
subject merchandise from the exporting country that the administering
authority determines can be reasonably examined; or
(B) determine a single country-wide subsidy rate to be applied to all
exporters and producers.
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to provide information by the submission deadlines or in the form or manner requested, (3)
significantly impeding a proceeding, or (4) providing information that cannot be verified,
Commerce shall use facts otherwise available to calculate the margin. 19 U.S.C. § 1677e(a)(2).
Where Commerce determines that a respondent has failed to cooperate, it may “use an inference
that is adverse to the interests of that party in selecting from among the facts otherwise available”
and thereby apply AFA. 	19 U.S.C. § 1677e(b)(1)(A). 	A respondent does not cooperate to the
“best of its ability” when it fails to “put forth its maximum effort to provide Commerce with full
and complete answers to all inquiries.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382
(Fed. Cir. 2003). In applying AFA, Commerce may rely on information from the initial petition,
a final determination in the investigation, a previous administrative review, or any other portion of
the administrative record. 	19 U.S.C. § 1677e(b)(2); 19 C.F.R. § 351.308(c). 	Thus, recourse to
AFA gives Commerce a mechanism for filling informational gaps where requested or otherwise
necessary information is not provided. See Nippon Steel, 337 F.3d at 1381. Although Commerce
may choose to supplement the administrative record of its own accord, the burden of creating an
adequate record, and therefore of avoiding AFA, lies with the respondent. Nan Ya Plastics Corp.
v. United States, 810 F.3d 1333, 1337 (Fed. Cir. 2016) (citing QVD Food Co. v. United States,
658 F.3d 1318, 1324 (Fed. Cir. 2011)).
II. 	Factual Background
On January 11, 2018, Commerce published a notice of initiation of administrative review
of the CVD Order on rebar from Turkey covering calendar year 2016. 	See Initiation of
Antidumping and Countervailing Duty Administrative Reviews, 83 Fed. Reg. 1,329, 1,334 (Dep’t
Commerce Jan. 11, 2018). Commerce limited its review to the three companies that accounted for
the largest volume of rebar exports from Turkey to the United States during the period of review,
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ZKLFKLQFOXGHG,oGDúDQGdRODNR÷OXSXUVXDQWWR6HFtion 751 of the Tariff Act of 1930 as amended,
 86& †   ,oGDú DQG dRODNR÷OX SDUWLFLSDWHG WKURXJKRXW WKH SURFHHGLQJ E\ submitting
questionnaire responses and case briefs. See, e.g.,oGDú&HOLN(QHUML7HUVDQHYH8ODVLP6DQD\L
A.S.’s Response to SHFWLRQ,,,RIWKH'HSDUWPHQW¶V&9'4XHVWLRQQDLUH 0D\  ³,oGDú
Sec. III Resp.”), P.R. 99, C.R. 84 et seq. On December 10, 2018, Commerce issued its preliminary
GHWHUPLQDWLRQFDOFXODWLQJD&9'PDUJLQRISHUFHQWIRU ,oGDúDQGD&9'PDUJLQRI0.04
SHUFHQWIRUdRODNR÷OXSteel Concrete Reinforcing Bar from the Republic of Turkey: Preliminary
Results of Countervailing Duty Administrative Review and Intent to Rescind the Review in Part;
2016, 83 Fed. Reg. 63,472, 63,473 (Dep’t Commerce Dec. 10, 2018), P.R. 297 (“Preliminary
Results”); Preliminary Issues & Decision Mem., Dec. 3, 2018, P.R. 292 (“PDM”).
In the Preliminary Results&RPPHUFHGHWHUPLQHGWKDW,oGDúDQGdRODNR÷OXHDFKUHFHLYHG
countervailable subsidies during the period of review. 	With respect to ,oGDú &RPPHUFH  
treated the GIIS program as a contingent liability and a grant; (2) relied on a long-term interest
rates published by the IMF to measure the benefits conferred by the contingent liabilities under
the GIIS program; and (3) determined that any benefits received by respondent’s cross-owned
VXSSOLHU,oGDú(OHNWULNXQGHUWKH*,,6SURJUDPVKRXOGEHDWWULEXWHGWR,oGDúPDM at 11, 16–19.
:LWK UHVSHFW WR dRODNR÷OX Commerce preliminarily found that no usable tier-two benchmark
information was available with respect to the market price of natural gas, and resorted to a tier-
three benchmark to determine whether natural gas was provided for less than adequate
remuneration. Commerce concluded that it could not use a tier–two market benchmark for natural
gas prices in Turkey because: (1) Russian domestic prices are distorted by the government of
Russia; (2) the government of Russia also controls export pricing because it is “the dominant
supplier of natural gas in the international market,” which “enables it to leverage prices and
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PUBLIC VERSION
supplies for geopolitical purposes,” and prevents export pricing from being market driven; (3)
39.5% of European Union (“EU”) natural gas is supplied by Russia, so International Energy
Agency (“IEA”) data is not suitable for use as a benchmark; (4) the Azerbaijani government
similarly controls the domestic gas market in Azerbaijan, so Azerbaijani gas prices are not suitable
market benchmarks; and (5) liquefied natural gas (“LNG”) is not a suitable benchmark because it
is not transported in pipelines and therefore not an accurate comparison. 	See PDM at 19–25.
Commerce preliminarily relied on U.S. export prices for LNG exports based on information from
the U.S. Department of Energy (“DOE”) and subtracted from the monthly average price the cost
of converting natural gas to LNG. 	Id. at 24–25. 	After utilizing this methodology, Commerce
IRXQG WKDW dRODNR÷OX GLG QRW EHQHILW IURP WKH provision of natural gas for less than adequate
remuneration. Id. at 25.
Commerce affirmed that rebar from Turkey was properly subject to CVDs in its final
determination on July 26, 2019. See Final Results; IDM. In addition, Commerce calculated final
&9'UHYLHZPDUJLQVRISHUFHQWIRU,oGDúDQGSHUFHQWIRUdRODNR÷OXFinal Results, 84
Fed. Reg. at 36,052. To reach these margins, Commerce applied a tier-three benchmark to measure
adequacy of remuneration, but adjusted IEA natural gas prices to account for Russian export prices
after determining that BOTAS’s natural gas prices were not consistent with market principles.
PDM at 24; see IDM at 16–17. Commerce then relied upon the adjusted IEA data as a benchmark
for natural gas prices in the Final Results. IDM at 20. At verification, Commerce also discovered
WKDW,oGDúIDLOHGWRUHSRUWLWVVDOHVILJXUHVRQDQDFFXUDWHIUHH-on-board (“FOB”) basis. IDM at 2,
6–7, 26–29. Because of this failure, Commerce FRQFOXGHGWKDW,oGDúIDLOHGWRFRRSHUDWHWRWKHEHVW
of its ability. 	IDM at 6–7. 	Therefore, in the Final Results, Commerce applied AFA WR,oGDú¶V
sales denominator for failure to accurately report the total sales denominator, including electricity,
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whicK &RPPHUFH FRQFOXGHG ³UHQGHUHG ,oGDú¶V UHSRUWHG WRWDO VDOHV GHQRPLQDWRU IRU 
unverifiable.” 	IDM at 6. 	In addition, Commerce found the GIIS program benefits received by
,oGDú(OHNWULNWREHFRXQWHUYDLODEOHid. at 35, and determined that investment incentive benefits
received were contingent liabilities subject to the IMF benchmark interest rate. Id. at 34, 37. On
February 14, 2020, Plaintiffs filed a Rule 56.2 motion for judgment on the agency record, arguing
that Commerce’s findings regarding Plaintiffs were unsupported by substantial evidence, abused
Commerce’s discretion, and were not in accordance with law. 	Pls.’ Br. 	The Government and
RTAC filed their response briefs to Plaintiffs’ motion on June 11, 2020. Def.’s Br.; Def.-Inter.’s
Br. Plaintiffs replied on July 9, 2020. Reply Br. of Pls. to Def. and Def.-Inter.’s Resp. to Pls.’
Mot. for J. on Agency R., ECF No. 36 (“Pls.’ Reply”). Oral argument was held on November 17,
2020. Oral Arg., ECF No. 48. Prior to oral argument, the court issued and the parties responded
to questions regarding the case. 	Letter re: Questions for Oral Arg., Nov. 6, 2020, ECF No. 42;
Pls.’ Resp. to Ct.’s Questions for Oral Arg., Nov. 13, 2020, ECF No. 45 (“Pls.’ Suppl. Br.”); Def.’s
Resp. to Ct.’s Order, Nov. 13, 2020, ECF No. 46 (“Def.’s Suppl. Br.”); Resp. to Oral Arg.
Questions of Def.-Inter. RTAC, Nov. 13, 2020, ECF No. 43 (“Def.-Inter.’s Suppl. Br.”).
Following oral argument, the parties submitted additional briefing on the issues. Pls.’ Suppl. Post-
Arg. Submission, Nov. 19, 2020, ECF No. 50 (“Pls.’ Post-Arg. Br.”); Def.’s Conf. Post-Arg.
Submission, Nov. 19, 2020, ECF No. 53 (“Def.’s Post-Arg. Br.”); Post-Arg. Submission of Def.-
Inter. RTAC, Nov. 19, 2020, ECF No. 51 (“Def-Inter.’s Post-Arg. Br.”).
-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.
§ 1516a(a)(2)(B)(iv) and (vi). The standard of review is set forth in 19 U.S.C. § 1516a(b)(1)(B)(i):
“[t]he court shall hold unlawful any determination finding or conclusion found . . . to be
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unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 217 (1938). 	Nevertheless,
prior to “review by the court of the merits of a given claim, a party challenging agency action must
have first exhausted its administrative remedies or demonstrated to the court that it should be
exempted from the exhaustion requirement.” Luoyang Bearing Corp. v. United States, 44 CIT __,
__, 450 F. Supp. 3d 1402, 1408 (2020); see Boomerang Tube LLC v. United States, 856 F.3d 908,
912 (Fed. Cir. 2017). Finally, while the court affords deference to Commerce’s policy changes
under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), Commerce
must nevertheless provide an “adequate explanation” for changes or reversals in policy coming
before the court. See SKF USA Inc. v. United States, 630 F.3d 1365, 1373 (Fed. Cir. 2011).
DISCUSSION
The court finds that Commerce’s final determination was in accordance with law and
supported by substantial evidence. In particular: (1) Commerce permissibly applied partial AFA
in response to ,oGDú¶VIDLOXUHWRFRRSHUDWHZLWK&RPPHUFH¶VLQYHVWLJDWLRQWRthe best of its ability;
 &RPPHUFHUHDVRQDEO\DWWULEXWHGWR,oGDúWKH*,,6SURJUDPEHQHILWVUHFHLYHGE\,oGDú(OHNWULN
as a cross-owned input supplier; (3) &RPPHUFHUHDVRQDEO\LQWHUSUHWHG,oGDú¶VFXVWRPVGXW\DQG
VAT exemptions as both a grant and a contingent liability; (4) Commerce’s application of an IMF
TL loan interest rate benchmark with respect to the GIIS’s interest-free contingent liability was
appropriate under 19 U.S.C. § 1677(5)(E); and (5) Commerce permissibly resorted to a tier-three
benchmark for the market price of natural gas in its assessment of adequate remuneration.
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I. 	Commerce’s Application of Partial AFA Pursuant to 19 U.S.C. § 1677e(a)(2)(C)
is Supported by Substantial Evidence and in Accordance with Law
Plaintiffs argue that Commerce’s application of partial AFA was contrary to law and
unsupported by substantial evidence. Pls.’ Br. at 2. Plaintiffs assert that ,oGDú acted “to the best
of its ability to comply with Commerce’s requests and provided all information necessary for
Commerce to calculate an accurate subsidy rate,” and that any inaccuracy in ,oGDú’s reporting of
sales values on an FOB basis does not rise to the level of noncompliance. 	Id. at 2, 17. 	The
Government and RTAC argue that ,oGDú¶V VXEPLVVLRQ RI LQFRPSOHWe and inaccurate sales data
constitutes a failure to comply with Commerce’s requests to the best of its ability, and thus justifies
application of partial AFA. 	Def.’s Br. at 8–10; 	Def-Inter.’s Br. at 6–9. 	The court finds that
Commerce’s application of partial AFA was reasonable given ,oGDú’s failure to carry its burden,
and Commerce’s resultant inability to verify ,oGDú’s submissions.
Commerce applied AFA in its Final Results in response to “,oGDú’ failure to accurately
report the sales denominator in its questionnaire response.” IDM at 6. ,oGDú’s proposed correction
indicated that it “inadvertently failed to include several product categories when attempting to
derive a total FOB sales figure.” Id. However, ,oGDú did not identify or correct its error during
the review process -- rather, Commerce discovered the omission at verification. Id. Finding that
,oGDú’s omission of the accurate FOB sales data resulted in exclusion of “critical information
required for [the] subsidy analysis” from the record, and further finding that “,oGDú had ample
opportunity to report an accurate sales denominator . . . yet failed to do so,” Commerce concluded
that the application of AFA with respect to the sales denominator was warranted. Id. at 6–7.
,oGDúDUJXHVWKDWLWGLGQRWIDLOWRUHSRUWsales on an FOB basis. Pls.’ Suppl. Br. at 2. It
claims that it explained that the trial balance accounts are provided in the reconciliation worksheet,
while in the accounting system sales are broken out between domestic sales [[ 	]] accounts,
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PUBLIC VERSION
export sales [[ 	]] accounts and other sales [[ 	]] accounts with sales further broken down
into product families or other grouping within each three-digit account. 	Pls.’ Br. at 12–13; see
also CVD–35 &5 ,oGDúIXUWKHUDUJXHVWKDWLWSURYLGHGWR&RPPHUFH DGHWDLOHG
description explaining the accounting process and how its data are processed and organized. Pls.’
Br. at 13; see also ,oGDú6HF,,,5HVSDW&9'–12–CVD–13, P.R. 99, C.R. 84. Plaintiffs admit
that “certain FOB value amounts were inadvertently not carried over to the total value column
(AN) in the exhibit due to a clerical error,” but claim that the correct amounts were nevertheless
UHSRUWHGDQGVLPSO\LQFRUUHFWO\VXPPHG3OV¶%UDW,QDGGLWLRQ,oGDúFODLPVWKDWLWVRXJKW
to rectify its error at the first possible opportunity by submitting a corrected summation, and by
requesting that Commerce rely upon the total sales value reported in the table, including those not
included in the Total Value column. 	See ,oGDú9HULILFDWLRQ5HSRUWDW6–7, P.R. 312, C.R. 464;
3OV¶%UDWdRODNR÷OXDQG,oGDú&DVH%ULHIDW -XQH 35&5
7KH*RYHUQPHQWDVVHUWVWKDW,oGDú¶VHUURUFRQVWLWXWHVDIDLOXUHWRSURYLGHLQIRUPDWLRQE\
the deadline and in the manner requested by Commerce. 19 U.S.C. § 1677e(a)(2); Def.’s Br. at
10; see Nippon Steel, 337 F.3d at 1381. The Government and RTAC note that the company did
QRW DFNQRZOHGJH LWV PLVWDNH XQWLO &RPPHUFH DWWHPSWHG WR UHSOLFDWH ,oGDú¶V UHSRUWHG VDOHV DW
verification and expressly identified the error. 	Def.’s Br. at 11; Def-Inter.’s Br. at 2; ,oGDú
Verification Report at 6–,QDGGLWLRQWKH*RYHUQPHQWVWDWHVWKDWEHFDXVH,oGDúKDGWRPDQXDOO\
deduct freight expenses from its total sales, it was impossible for Commerce to find the correct
FOB value from the information presented. Def.’s Post-Arg. Br. at 2–,oGDú¶VIDLOXUHWRSURYLGH
accurate data therefore prevented Commerce from determining the accuracy and verifying the
validity of its submissions. See Def.’s Br. at 10; IDM at 6, 27–28. Because Commerce could not
verify the validity of the reported numbers, the Government concludes, it properly resorted to
Case 1:19-cv-00150-GSK Document 27 Filed 02/19/21 Page 13 of 36

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AFA. Def.’s Br. at 10; IDM at 27–28; see also Universal Polybag Co., Ltd. v. United States, 32
CIT 904, 907, 577 F. Supp. 2d 1284, 1289 (2008).
7KHEXUGHQRIFUHDWLQJDQDFFXUDWHUHFRUGEHIRUH&RPPHUFHIDOOVWR,oGDúSee Ta Chen
Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1336 (Fed. Cir. 2002). Although a party
may avoid application of AFA by making an “effort to provide Commerce with full and complete
answers” and ensuring it does “the maximum it is able to do” to comply with Commerce’s requests,
this flexible standard does not grant parties carte blanche for noncompliance. Nippon Steel, 337
F.3d at 1382. 	If a party determines prospectively that it is “unable to submit the information
requested in the requested form and manner,” it must promptly notify Commerce, and provide a
“full explanation and suggested alternative forms” for the submission. 19 U.S.C. § 1677m(c)(1).
Furthermore, while “[c]ompliance with the ‘best of its ability’ standard . . . does not require
perfection and recognizes that mistakes sometimes occur, it does not condone inattentiveness,
carelessness, or inadequate record keeping.” 	Dongtai Peak Honey Indus. Co., Ltd. v. United
States, 777 F.3d 1343, 1355 (Fed. Cir. 2015) (quoting Nippon Steel, 337 F.3d at 1382); see also
Def-Inter.’s Br. at 8. Indeed, the “failure of a respondent to furnish requested information -- for
any reason -- requires Commerce to resort to other sources of information to complete the factual
record on which it makes its determination,” and should not be taken lightly. Yantai Timken Co.,
Ltd. v. United States, 31 CIT 1741, 1756, 521 F. Supp. 2d 1356, 1372 (2007) (citing Nippon Steel,
337 F.3d at 1381).
As the Government notes, the Federal Circuit’s decision in Nippon Steel is instructive. In
that case, the court held that that by failing to exert “maximum effort to provide Commerce with
full and complete answers to all inquiries in an investigation,” a respondent fails to act to the best
of its ability. 337 F.3d at 1382. The court noted that the 19 U.S.C. § 1677e(b) “requires a factual
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assessment of the extent to which a respondent keeps and maintains reasonable records and the
degree to which the respondent cooperates in investigating those records and in providing
Commerce with the requested information.” Id. at 1383. In particular, respondents are expected
to “take reasonable steps to keep and maintain full and complete records” in anticipation of
possible production requests, and to “conduct prompt, careful, and comprehensive investigations
of all relevant records” upon receiving an inquiry from Commerce. See id. at 1382.
,oGDú IDLOHG WR PHHW WKH VWDQGDUG VHW IRUWK LQ Nippon Steel. 	Commerce asked ,oGDú
numerous times -- at least three times -- to provide an FOB basis for the total sales value. ,oGDú
IDLOHG WR GR VR  :KLOH ,oGDú FODLPV LW SURYLGHG DOO QHFHVVDU\ LQIRUPDWLRQ WR &RPPHUFH LQ LWV
original submission and that its subsequent adjustment to the total sales value was merely a
corrective summation, Commerce found that ,oGDú¶V FRUUHFWLRQ ZRXOG LQFUHDVH WKH FRPSDQ\¶V
reported figures by nearly 50 percent. 	Def.’s Br. at 11–12; IDM at 27. 	Furthermore, as the
Government notes, if Commerce had transferred the values in the sales column to the FOB column
at ,oGDú’s request, it would have been forced to accept ³DWIDFHYDOXHZLWKRXWYHULILFDWLRQ,oGDú¶V
statement that no freight costs needed to be added or subtracted from the reported sales.” Def.’s
Br. at 12. Under the circumstances, Commerce reasonably concluded that ,oGDú failed to cooperate
to the best of its ability by exerting “maximum effort to provide Commerce with full and complete
answers” to its inquiries. Nippon Steel, 337 F.3d at 1382; IDM at 28; Def.’s Br. at 11.
Indeed, courts have consistently found that application of AFA is appropriate under these
circumstances. In Dongtai Peak Honey Indus. Co., Ltd. v. United States, the Federal Circuit found
that “[i]n selecting an AFA rate, Commerce may use information from the petition, investigation,
prior administrative reviews, or ‘any other information placed on the record.’” 	777 F.3d 1343,
1355 (Fed. Cir. 2015) (citing 19 U.S.C. § 1677e(b)(2)(D)). “[W]here there is useable information
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of record but the record is incomplete,” and Commerce determines that “the respondent did not
cooperate to the best of its ability,” Commerce applies partial AFA: “adverse inferences about the
missing information.” 	Wash. Int’l Ins. Co. v. United States, 33 CIT 1023, 1035 n.18 (2009);
Yantai, 31 CIT at 1746–48, 521 F. Supp. 2d at 1364–65, aff’d 300 Fed. Appx. 934 (Fed. Cir. 2008).
In Nippon Steel, the court held that “[i]t is not an excuse that the employee assigned to prepare a
response does not know what files exist, or where they are kept, or did not think—through
inadvertence, neglect, or otherwise to look beyond the files immediately available.” 337 F.3d at
1383.
Commerce 	therefore 	reasonably 	applied 	AFA 	in 	response 	to 	,oGDú’s 	inaccurate
submissions. 	Commerce is required to verify all information it relies upon in making a final
determination in an investigation, 19 U.S.C. § 1677m(i), and is prohibited from relying on
unverified information. Yantai, 31 CIT at 1762, 521 F. Supp. 2d at 1376. Nor is the inadvertent
QDWXUH RI ,oGDú¶V HUURU DQ H[FXVH  3OV¶ %U DW  Nippon Steel, 337 F.3d at 1383. 	Because
Commerce could not verify IoGDú¶VFRUUHFWLYHLQIRUPDWLRQGXHWR,oGDú’s own failure to cooperate,
it was prohibited from relying on the corrective submissions. 	Accordingly, as the Government
DVVHUWV,oGDúGHQLHGWKHDJHQF\WKHRSSRUWXQLW\WRFRQVLGHUWKHDFFXUDF\DQGYHULI\WKHYDlidity of
the FOB sales value numbers, which are an essential component of Commerce’s subsidy analysis.
Def.’s Br. at 10. Recourse to AFA allowed Commerce to fill the resultant gap in its investigation.
In sum, ,oGDú¶VIDLOXUHWRSURYLGHthe requested information -- information it had access to and
could have supplied -- adequately establishes that ,oGDú did not cooperate with Commerce’s
investigation to the best of its ability and supports Commerce’s application of partial AFA. Def.’s
Br. at 10.
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A. 	,oGDú’s Corrections were neither Clerical nor Timely
The court also rejects Plaintiffs’ contention that Commerce abused its discretion by
refusing to consider ,oGDú’s corrective submissions. 	Commerce is generally prohibited form
considering untimely new factual information under 19 C.F.R. §351.302(d). 	Although it is
Commerce’s practice to accept “minor corrections to the information already on the record” at
verification, this practice does not extend to major, substantive alterations. 	Letter from M.
Hoadley WR ,oGDú UH 9HULILFDWLRQ $JHQGD IRU WKH &RXQWHUYDLOLQJ 'XW\ ,QYHVWLJDWLRQ RI 6WHHO
Concrete Reinforcing Bar from the Republic of Turkey at 2 (Apr. 23, 2019) (emphasis added),
P.R. 307, C.R. 452. Although ,oGDú argues that its error was only “clerical” and that Commerce
must therefore incorporate its correction, the court finds that Commerce’s interpretation of the
error as substantive, and its consequential rejection of the corrective submissions, was not an abuse
of discretion. Pls.’ Br. at 19; Def.’s Br. at 15; Def-Inter.’s Br. at 12; IDM at 7 and 27.
Under limited circumstances, parties to a CVD investigation may supplement or correct
the information they have provided to Commerce. If parties under investigation wish to provide
new factual information, 3 Commerce’s regulations provide specific time limits for submission
3 Under 19 C.F.R. § 351.102(b)(21), “factual information” means:
(i) Evidence, including statements of fact, documents, and data submitted either
in response to initial and supplemental questionnaires, or, to rebut, clarify, or
correct such evidence submitted by any other interested party;
(ii) Evidence, including statements of fact, documents, and data submitted
either in support of allegations, or, to rebut, clarify, or correct such evidence
submitted by any other interested party;
(iii) 	Publicly 	available 	information 	submitted 	to 	value 	factors 	under 	§
351.408(c) or to measure the adequacy of remuneration under § 351.511(a)(2),
or, to rebut, clarify, or correct such publicly available information submitted by
any other interested party;
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based on the type of information involved. 	19 C.F.R. § 351.301(c). 	Relevant to this dispute,
miscellaneous new factual information must be submitted either thirty days before the scheduled
date of the preliminary results or fourteen days before verification, whichever is earlier. 	Id.
Beyond new factual information, “Commerce is free to correct any type of importer error --
clerical, methodology, substantive, or one in judgment -- in the context of making an antidumping
duty determination, provided that the importer seeks correction before Commerce issues its final
results and adequately proves the need for the requested corrections.” Timken U.S. Corp. v. United
States, 434 F.3d 1345, 1353 (Fed. Cir. 2006). The court has clarified that Commerce abuses its
discretion 	by 	rejecting 	“corrective 	information,” 	which 	includes 	submissions 	“to 	correct
information already provided [to Commerce],” Fischer S.A. Comercio v. United States, 34 CIT
334, 348, 700 F. Supp. 2d 1364, 1376 (2010), or to “clarif[y] information already in the record,”
id. at 1373, but not submissions proffered to “fill [] gap[s] caused by [the respondent’s] failure to
provide a questionnaire response or evidence requested during verification.” Id. at 1377.
Nevertheless, Commerce retains broad discretion when deciding whether to accept a
respondent’s corrective information. Deacero S.A.P.I. de C.V. v. United States, 42 CIT __, __,
353 F. Supp. 3d 1303, 1309 (2018). 	The court may only intervene if Commerce’s rejection of
supplemental information constitutes an arbitrary abuse of its discretion, such that Commerce
“acted differently in this case than it has consistently acted in similar circumstances without
(iv) Evidence, including statements of fact, documents and data placed on the
record by the Department, or, evidence submitted by any interested party to
rebut, clarify or correct such evidence placed on the record by the Department;
and
(v) Evidence, including statements of fact, documents, and data, other than
factual information described in paragraphs (b)(21)(i)–(iv) of this section, in
addition to evidence submitted by any other interested party to rebut, clarify, or
correct such evidence.
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reasonable explanation.” 	Consol. Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed. Cir.
2003) (see also RHP Bearings v. United States, 288 F.3d 1334, 1347 (Fed. Cir. 2002)). 	In
particular, the court has found abuse of discretion where Commerce “refus[es] to accept updated
data when there [i]s plenty of time for Commerce to verify or consider it.” Papierfabrik August
Koehler SE v. United States, 843 F.3d 1373, 1384 (Fed. Cir. 2016) (citing NTN Bearing Corp. v.
United States, 74 F.3d 1204, 1207–08 (Fed. Cir. 1995)).
As Plaintiffs correctly note, courts have consistently held that Commerce abuses its
discretion where it denies corrections involving “a ‘straightforward mathematical adjustment’ that
‘would neither have required beginning anew nor have delayed making the final determination.’”
Fischer, 34 CIT at 347 (quoting Timken U.S. Corp. v. United States, 434 F.3d 1345, 1353 (Fed.
Cir. 2006)); see also NTN Bearing, 74 F.3d at 1208. Such corrections have included the deletion
of four accidentally-included foreign sales, NTN Bearing, 74 F.3d at 1208; the correction of 23
mistyped item codes, id. at 1207–08; and the submission of missing pages from a sales agreement,
Fischer, 34 CIT at 349. In each of these cases, supporting documentation was also provided which
“establish[ed] the clerical nature of the[] errors.” NTN Bearing, 74 F.3d at 1208; see also Fischer,
34 CIT at 348.
Plaintiffs err, however, in describing ,oGDú’s corrective submission as a straightforward
mathematical adjustment. Unlike plaintiffs in NTN Bearing and Fischer, ,oGDú reported zeros in
the FOB column for numerous full categories of sales. 	See IDM at 27. 	Furthermore, its
explanation for the error was contradicted by the record. 	Id. 	Far from being a straightforward
adjustment, Commerce determined that the proposed correction would affect a significant portion
of the data by increasing the provided sales denominator by almost 50 percent. IDM at 7 and 27.
The correction requested by ,oGDú would also require Commerce to manually deduct freight costs
Case 1:19-cv-00150-GSK Document 27 Filed 02/19/21 Page 19 of 36

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IURP,oGDú¶VWRWDOJURVVVDOHVsomething Commerce could not do because its requested data was
missing from the record. Def.’s Suppl. Br. at 4–5.
Nor is it clear that incorporating ,oGDú’s correction would “neither have required beginning
anew nor have delayed [a] final determination.” 	Fischer, 34 CIT at 347 (quoting Timken U.S.
Corp. v. United States, 434 F.3d 1345, 1353 (Fed. Cir. 2006)). Where plaintiffs in NTN Bearing
or Fischer VXEPLWWHG FRUUHFWLRQV SULRU WR YHULILFDWLRQ ,oGDú sought to correct its mistake
substantially later in the proceedings, after Commerce discovered the error at verification. Def.’s
Br. at 17. 	As Commerce stated in its determination, “[w]hat amounts to a brand-new sales
denominator should have been submitted early enough in the review to allow Commerce and the
petitioner adequate time to consider the accuracy of the numbers involved, as well as the
calculation methodology, and then give Commerce sufficient time to verify the validity of those
QXPEHUV´,'0DW,I,oGDúKDGWLPHO\VXEPLWWHGLWVFRUUHFWLRQVWKHQ³&RPPHUFHZRXOGKDYH
had an opportunity to review and verify its validity.” IDM at 7.
The Federal Circuit has previously rejected a bright-line rule obligating Commerce to allow
a respondent to correct any error, and this court similarly rejects such a holding here. Timken, 434
F.3d at 1353. ,QWKLVFDVH&RPPHUFHDVNHG,oGDúQXPHURXVWLPHVIRUWKH)2%YDOXHVLQIRUPDWLRQ
\HW,oGDúHLWKHUUHIXVHGRUIDLOHGWRSURYLGHWKDWLQIRUPDWLRQ1RUFRXOG&RPPHUFHYHULI\,oGDú¶V
FRUUHFWLYHVXEPLVVLRQEHFDXVHRI,oGDú¶VIDLOXUHWRSURYLGHWKHLQIRUPDWLRQ Commerce requested.
Forcing Commerce to accept ,oGDú¶Vdelayed correction after its failure to cooperate would render
Commerce’s deadlines meaningless and disincentivize cooperation with agency requests. Def.’s
Br. at 18; Def.-Inter.’s Br. at 9. 	The court therefore rejects ,oGDú’s contention that Commerce
abused its discretion by refusing to consider the corrective submission and reiterates that
Commerce acted reasonably in resorting to AFA.
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II. 	Commerce’s Attribution of GIIS Program Benefits Received by IçGDú(OHNWULNWR
,oGDúLV6XSSRUWHGE\6XEVWDQWLDO(YLGHQFHDQGLQ$FFRUGDQFHZLWK/DZ
Plaintiffs assert that Commerce incorrectly attributed GIIS program benefits received by
,oGDú(OHNWULNWR,oGDúEHFDXVHWKHHOHFWULFLW\LQSXWZDVQRWGHGLFDWHGWRWKHSURGXFWLRQRIVXEMHFW
merchandise, but rather to unrelated electricity generation. Pls.’ Br. at 19–20. While not disputing
Commerce’s cross-RZQHUVKLSGHWHUPLQDWLRQZLWKUHVSHFWWR,oGDú(OHNWULN3ODLQWLIIVFODLPWKDW
despite cross-RZQHUVKLSWKHUHFRUGVKRZVWKDW,oGDú(OHNWULNVROGQRSRZHUWRWKH,oGDúVWHHOPLOO
and the exemptions granWHGWR,oGDú(OHNWULNXQGHUWKH*,,6SURJUDPZHUHWLHGWRQRQ-subject
merchandise and “bestowed” for purposes of electricity production. Id. at 20. The Government
and RTAC FRQWHQG WKDW ,oGDú (OHNWULN SURYLGHG VFUDS DQ LQSXW SULPDULO\ GHGLFDWHG WR WKH
prRGXFWLRQ RI WKH VXEMHFW PHUFKDQGLVH WR ,oGDú  'HI¶V %U DW ; Def-Inter.’s Br. at 11. 	The
Government also argues that Commerce identifies the type and monetary value of the subsidy at
the time of bestowal. Id. at 30. The court finds that Commerce’s attribution of the GIIS program
EHQHILWV UHFHLYHG E\ ,oGDú (OHNWULN WR ,oGDú ZDV VXSSRUWHG E\ VXEVWDQWLDO HYLGHQFH DQG LQ
accordance with law.
Commerce interpreted 19 U.S.C. § 1677(5)(E) through specific regulations governing the
calculation and attribution of subsidy benefits. 	One such regulation, 19 C.F.R. § 351.525(a),
provides that, in calculating ad valorem subsidy rates, Commerce will “divid[e] the amount of the
benefit allocated to the period of investigation or review by the sales value during the same period
of the product or products to which [Commerce] attributes the subsidy under paragraph (b).”
Paragraph (b) identifies various rules for the attribution of subsidies, including that, where
“production of the input product is primarily dedicated to production of the downstream product,
[Commerce] will attribute subsidies received by the input producers to . . . both corporations.” 19
C.F.R. § 351.525(b)(6)(iv).
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However, subparagraph (b)(5)(i) states that “[i]f a subsidy is tied to the production or sale
of a particular product, [Commerce] will attribute the subsidy only to that product.” 19 C.F.R. §
351.525(b)(5)(i); see, e.g., Nucor Corp. v. United States, 44 CIT __, __, 461 F. Supp. 3d 1374
(2020); Uttam Galva Steels Ltd. v. United States, 44 CIT __, __, 425 F. Supp. 3d 1366, 1369 (CIT
2020). Furthermore, the preamble to Commerce’s CVD regulations clarifies that, while there is
no “all-encompassing definition of ‘tied,’” the rules regulating tied subsidies are intended to
“reasonably attribute[e] the benefit from a subsidy based on the stated purpose of the subsidy or
the purpose we evince from record evidence at the time of bestowal.” See Countervailing Duties,
63 Fed. Reg. 65,348, 65,403 (“CVD Preamble”).
,oGDúacknowledged in the investigation WKDWLWVDIILOLDWH,oGDú(OHNWULNZDVLQYROYHGLQWKH
manufacture, distribution, and sale of subject merchandise during the relevant period of review.
See PDM at 3, 9–6SHFLILFDOO\,oGDú(OHNWULNSURYLGHGVcrap -- an input primarily dedicated to
the production of the subject merchandise -- WR,oGDúSee ,oGDú&HOLN(QHUML7HUVDQHYH8ODVLP
Sanayi A.S.’s Response to the Department’s Section III CVD Questionnaire Identifying Affiliated
Parties at 4 (Apr. 10, 2018), P.R. 36, C.R. 5. 	After receiving this disclosure, Commerce
SUHOLPLQDULO\GHWHUPLQHGWKDW,oGDú(OHNWULNZDVDFURVV-owned supplier and satisfied the criteria
enumerated in the agency’s regulation. PDM at 9–10 (citing 19 C.F.R. § 351.525(b)(6)(iv), (vi)).
7KXV&RPPHUFHSUHOLPLQDULO\DWWULEXWHGWKHEHQHILWVUHFHLYHGE\,oGDú(OHNWULNXQGHUWKH*,,6
SURJUDPWR,oGDú3'0DW–19. Commerce made no changes in its analysis before the Final
Results EHVLGHVUHYLVLQJ,oGDú¶VVDOHVGHQRPLQDWRUWRDSSO\SDUWLDO$)$,'0DW–35.
,oGDú FRQWHVWVWKLVILQGLQJDUJXLQJWKDWWKDW,oGDú(OHNWULNRQO\VROGDVPDOODPRXQWRI
VFUDS WR ,oGDú IRU [[ 	]] Turkish Lira (“TL”), accounting for [[ 	]] of the total
[[ 	@@7/LQUDZPDWHULDOFRVWVLQFXUUHGE\,oGDúLQ an amount which would
Case 1:19-cv-00150-GSK Document 27 Filed 02/19/21 Page 22 of 36

Consol. Court No. 19-00149 	Page 23
PUBLIC VERSION
not support a finding of material input support. Pls.’ Br. at 21; Pls.’ Suppl. Br. at 12. In addition,
3ODLQWLIIVVWDWHWKDWZKLOH,oGDú(OHNWULNDOVRVROGDVPDOODPRXQWRIHOHFWULFLW\WR,oGDú>>
@@WKHVHHOHFWULFLW\VDOHVZHUHWRWKH,oGDú concrete plant,
which is unrelated to the production of the subject merchandise. Id. at 22. Plaintiffs conclude that
these sales were not sufficient to attribute the “entire [,oGDú (OHNWULN] investment certificate
support” to the steel-making operation under investigation by Commerce. Id. at 22.
The Government argues that the quantity of scrap provided to ,oGDú by ,oGDú Elektrik is
irrelevant to Commerce’s analysis because there is no threshold for the amount of input supplied
by a cross-owned company for purposes of attribution under 19 C.F.R. § 351.525(b)(6)(iv). Def.’s
Br. at 30; see also IDM at 35. With respect to the GIIS program, the GOT indicated during the
investigation that the program was intended to support investments in the country and to increase
employment and exports. Def.’s Br. at 29 (citing Memorandum re: Verification of Questionnaire
Responses Submitted by the Government of the Republic of Turkey at 6 (June 6, 2019), P.R. 314,
C.R. 465 (“GOT Verification Report”)). Based on record evidence of the subsidy at the time of
bestowal, Commerce concluded that the exemptions were not specifically intended to benefit the
production of non-subject merchandise only. Id.; IDM at 34 & nn. 204–05. Thus, the Government
argues, it would be inconsistent with Commerce’s regulations to base its determination the quantity
RI HOHFWULFLW\ ,oGDú (OHNWULN VROG WR ,oGDú IRU SURGXFWLRQ RI WKH VXEMHFW PHUFKDQGLVH EHFDXVH LW
would require Commerce to conduct its analysis beyond the time of bestowal. 	Def.’s Br. at 30
(citing TMK IPSCO v. United States, 41 CIT __, __, 222 F. Supp. 3d 1306, 1325 (2017)).
The court finds that Commerce’s determination was supported by evidence and in
accordance with law. It is well-settled that Commerce is not required to examine the ultimate use
of the subsidy. Fabrique de Fer de Charleroi, SA v. United States, 25 CIT 567, 576, 166 F. Supp.
Case 1:19-cv-00150-GSK Document 27 Filed 02/19/21 Page 23 of 36

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2d 593, 603 (2001). 	Nor do Plaintiffs identify any case or statute that requires Commerce to
consider the quantity of scrap provided to a downstream producer. See Pls.’ Br. at 21–22. While
the final quantity may be low, the regulations do not obligate Commerce to measure the impact of
an input supplier’s contributions when weighing whether to attribute its subsidies to the
downstream 	producer. 	Rather, 	viewed 	in 	light 	of 	the 	CVD 	Preamble, 	19 	C.F.R. 	§
351.525(b)(6)(iv) looks only at the purpose of the subsidy at the time of bestowal. See 63 Fed.
Reg. at 65,403. 7KHUHIRUHWKHTXDQWLW\RIWKHVFUDSSURYLGHGWR,oGDúE\,oGDú(OHNWULNZKLOHORZ
is not sufficient to persuade the court that Commerce acted without substantial evidence or
contrary to law.
Nor is the court compelled by Plaintiffs’ argument that because any benefit to ,oGDú
Elektrik was shared by all ,oGDú affiliates, it is appropriate to allocate the subsidy to overall sales.
Pls.’ Br. at 23. In fact, as the Government notes, Commerce properly attributed subsidies received
E\,oGDú(OHNWULN to the combined sales of the input and downstream products by both corporations,
DV,oGDú(OHNWULNLVDQLQSXWVXSSOLHUUDWKHUWKDQDKROGLQJRUSDUHQWFRPSDQ\'HI¶V%UDW
C.F.R. § 351.525(b)(6). 	Commerce’s methodology was reasonable: from the start of the
LQYHVWLJDWLRQ&RPPHUFHUHOLHGRQ,oGDú¶VVXSSOHPHQWDOTXHVWLRQQDLUHUHVSRQVHVDQGFRPELQHG
the total sales of both companies while excluding all sales to affiliates. See PDM at 3, 9–10; IDM
at 34. Only after applying partial AFA did Commerce change its analysis, and then only to adjust
,oGDú¶VVDOHVGHQRPLQDWRU,'0DW–35. Thus, Plaintiffs’ argument is insufficient to overturn
Commerce’s determination.
In addition, the court rejects Plaintiffs’ attempt to challenge Commerce’s conclusion on the
basis that it is inconsistent with Commerce’s 2015 determination that the investment certificate
JUDQWHGWR,oGDú(OHNWULNZDVWLHGWRWKHSURGXFWLRQRIQRQ-subject merchandise. Pls.’ Br. at 21–
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Consol. Court No. 19-00149 	Page 25
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22; see also dRODNR÷OX DQG ,oGDú &DVH Br. at 11–12. 4 	The Government correctly notes that
Commerce’s conclusions from earlier segments of the same proceeding do not serve as precedent
controlling its conclusions in a future review. 	Def.’s Br. at 31 (citing Pakfood Pub. Co. Ltd. v.
United States, 34 CIT 1122, 1138, 724 F. Supp. 2d 1327, 1345 (2010); IDM at 35)). 	Even so,
courts “look for a reasoned analysis or explanation” from Commerce to ensure that the agency has
not abused its discretion in departing from prior analysis. Wheatland Tube Co. v. United States,
161 F.3d 1365, 1369–70 (Fed. Cir. 1998) (citing Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 167–68 (1962)). Commerce has provided such an explanation here, noting that the
GOT stated during the course of Commerce’s investigation that “the purpose of the customs duty
and VAT exceptions provided under the GIIs is to encourage general investments in the country.”
IDM at 34 (citing GOT Verification Report at 6). Where admissions from the GOT and Plaintiffs
themselves evince an untied subsidy, Commerce does not abuse its discretion in departing from
even an explicit contrary finding where those admissions were not available. Id.; see also Def.’s
Suppl. Br. at 9.
Accordingly, the court concludes that there is no indication that Commerce’s application
of 19 C.F.R. § 351.525(b) was either unlawful or unsupported by substantial evidence.
III. 	Commerce’s Decision to Treat the GIIS Program as a Contingent Liability and
a Grant is Supported by Substantial Evidence and in Accordance with Law
Plaintiffs argue that Commerce’s decision to treat the GIIS program as both a contingent
liability and a grant essentially “double-counted” the subsidy provided for the purchase and import
of equipment. Pls.’ Br. at 23–24. Plaintiffs additionally claim that it was factually incorrect and
4 Plaintiffs point to the 2015 review: Steel Concrete Reinforcing Bar from the Republic of Turkey:
Preliminary Results and Intent to Rescind Review in Part; 2015, 82 Fed. Reg. 57,574 (Dep’t
Commerce Dec. 6, 2017).
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impermissible for Commerce to treat the GIIS as a contingent liability given that the benefits
received were not “contingent” on any subsequent event. Id. Instead, Plaintiffs contend, once the
covered equipment was imported, the grant was received. Id. at 24. The Government and RTAC
GLVDJUHHDUJXLQJWKDW,oGDú(OHNWULNUHFHLYHGWZREHQHILWVDFRQWLQJHQW liability interest-free loan
in the amount of the unpaid interest on its subsidized equipment purchases, and a grant consisting
of the total amount of waived duties. Def.’s Br. at 18; Def-Inter.’s Br. at 12. The court finds that
Commerce’s decision to treat the GIIS program as a contingent liability and a grant was not
impermissible double-counting and is in fact supported by substantial evidence and in accordance
with law.
Commerce’s treatment of contingent liabilities is prescribed by C.F.R. § 351.505. 	The
statute finds that a benefit “exists to the extent that the amount a firm pays on the government-
provided loan is less than the amount the firm would pay on a comparable commercial loan(s) that
the firm could actually obtain on the market.” 19 C.F.R. § 351.505(a)(1). “When ‘the repayment
obligation is contingent upon the company taking some future action or achieving some goal in
fulfillment of the loan’s requirement[],’ [then] Commerce is normally required to treat the import
duty deferrals as contingent liability loans until the liability is met or until the event upon which
repayment depends is no longer a viable contingency.” MTZ Polyfilms, Ltd. v. United States, 33
CIT 1575, 1583, 659 F. Supp. 2d 1303, 1311 (2009) (citing Loans, 19 C.F.R. § 351.505(d)); see
also Def-Inter.’s Suppl. Br. at 3.
The benefit conferred to ,oGDú by the GIIS program is, under C.F.R. § 351.505, reasonably
understood as a contingent liability. It is not disputed that ,oGDú(OHNWULNUHFHLYHGFXVWRPVGXW\
and VAT exemptions on certain purchases of machinery and equipment under the GIIS program.
Def.’s Br. at 19; Pls.’ Br. at 23. 	Contrary to Plaintiffs’ assertions, the fact that the GOT could
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revoke these exemptions and require payment in full of suspended interest upon discovering issues
at verification is sufficient to render the suspended interest an effective contingent liability loan.
GOT Verification Report at 7-8; see also Def.’s Br. at 20. Indeed, as Commerce noted, failing to
consider the contingent liability portion of the GIIS benefits would leave it with “no remedy to
restore the subsidies attributed and duties paid.” IDM at 37.
Here, the regulation defines a contingent liability interest-free loan as a loan for which “the
repayment obligation is contingent upon the company taking a future action or achieving some
goal.” 19 C.F.R. § 351.505(d)(1). The administrative record shows that under the GIIS program,
,oGDú(OHNWULNUHFHLved customs duty and VAT exemptions on equipment purchases which were
VXEMHFWWRUHFODPDWLRQZLWKLQWHUHVWLQWKHFDVHWKDW,oGDú(OHNWULNIDLOHGWRUHFHLYHDFRPSOHWLRQ
visa. PDM at 16 (citing GOT Initial Questionnaire Response (May 14, 2018), P.R. 64, C.R. 36, at
83–84); IDM at 36–37. 	Given this evidence, Commerce reasonably determined that ,oGDú
Elektrik’s repayment obligation was contingent upon grant of the completion visa, and thus that
the GIIS program included “a loan component within the meaning of 19 C.F.R. § 351.505(d).”
IDM at 37; Def.’s Br. at 20. 	%HFDXVHWKH*,,6SURJUDPJLYHQWR,oGDú(OHNWULNZDVDWWULEXWDEOH
WR,oGDúWKHEHQHILWVUHFHLYHGXQGHUWKHSURJUDPZHUHDOVRDWWULEXWDEOHWR,oGDúDQG Commerce
reasonably concluded that ,oGDú¶V UHSD\PHQW REOLJDWLRQ was contingent upon the company
fulfilling its loan requirements under 19 C.F.R. § 351.505(d).
Furthermore, it is not contrary to law for Commerce to treat ,oGDú’s GIIS benefits as both
a contingent liability interest-free loan and a grant. Under 19 C.F.R. § 351.505(d)(2), if Commerce
“determines that the event upon which repayment depends is not a viable contingency,
[Commerce] will treat the outstanding balance of the loan as a grant received in the year in which
this condition manifests itself.” 	Here, the contingent liability interest-free loan is not a viable
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FRQWLQJHQF\LQWKH\HDULQZKLFKWKH*27JUDQWHG,oGDúDFRPSOHWLRQYLVD7KHUHIRUHCommerce
reasonably determined that an additional benefit -- a grant -- arises in the year in which the GOT
ZDLYHV,oGDú¶VFRQWLQJHQWOLDELOLW\DQGIRUJLYHV,oGDú¶VXQSDLG9$7DQGGXWLHV'HI¶V%UDW
Nor does the plain language of the statute indicate that 19 C.F.R. § 351.505(d)(2) must be applied
to the exclusion of 19 C.F.R. § 351.505(d)(1), 5 and as noted above, such exclusion risks leaving
Commerce with no recourse to “restore the subsidies attributed and duties paid” through
countervailing duties. 	IDM at 37. 	The court therefore concludes that Commerce’s decision to
treat the GIIS program as a contingent liability and a grant is supported by substantial evidence
and in accordance with law.
IV. 	Commerce’s Application of the IMF Loan Interest Rates to the Loan Provided
Under the GIIS Program is Supported by Substantial Evidence
Plaintiffs contend that Commerce’s decision to apply IMF benchmark loan rates to the
GIIS program is unsupported by evidence and not in accordance with departmental policy. Pls.’
Br. at 26. Setting aside the argument rejected above that the GIIS benefit cannot be characterized
as a contingent loan, Plaintiffs additionally claim that Commerce improperly applied a TL
benchmark rate where ,oGDú Elektrik provided actual borrowing rates in U.S. dollars, and that the
IMF TL rates applied were distortive. 	Id. at 26–27. 	The Government and RTAC deny these
arguments and contend that, as QHLWKHU ,oGDúQRU ,oGDú(OHNWULN had any comparable long-term
loans from commercial banks during the year under consideration or the preceding year,
Commerce properly relied instead on national average interest rates from the IMF statistics. Def.’s
5 In MTZ Polyfilms, the court rejected a similar argument that Commerce improperly interpreted
unpaid benefits under an export goods scheme as a contingent liability loan, finding that “in the
absence of unambiguous statutory language to the contrary or unreasonable resolution of language
that is ambiguous,” Commerce’s interpretation properly governs. 33 CIT at 1582, 659 F. Supp.
2d at 1313–14.
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Br. at 24; Def-Inter.’s Br. at 14. The court finds that the application of IMF benchmark rates was
supported by substantial evidence and in accordance with law. 6
A loan confers a benefit where there is a “difference between the amount the recipient of
the loan pays on the loan and the amount the recipient would pay on a comparable commercial
loan that the recipient could actually obtain on the market.” 19 U.S.C. § 1677(5)(E). Under 19
C.F.R. 	§ 	351.505(c)(2), 	to 	determine 	the 	benefit 	conferred 	by 	a 	government-provided
concessionary interest rate loan, Commerce looks to the difference between the actual interest rate
and a benchmark rate constituting “the interest the firm would have paid on [a] comparison loan.”
In the case that the loan is a contingent liability loan, and repayment is conditioned upon an event
set to occur more than one year after the receipt of the loan, Commerce is obligated to employ a
long-term interest rate benchmark. 	19 C.F.R. § 351.505(d). 	In order to calculate a long-term
interest rate, Commerce “normally will use a loan the terms of which were established during, or
immediately before, the year in which the terms of the government-provided loan were
established.” 19 C.F.R. § 351.505(a)(2)(iii). However, if Commerce determines that “the firm did
not take out any comparable commercial loans” during or immediately before the relevant year, it
“may use a national average interest rate for comparable commercial loans.” 	19 C.F.R. §
351.505(a)(3)(ii).
Here, Commerce appropriately employed a long-term interest rate benchmark to calculate
the total benefit received by Plaintiffs under the GIIS. 19 C.F.R. § 351.505(c)(2). As the court
6 While RTAC further argues that Plaintiffs failed to exhaust their administrative remedies with
respect to both Commerce’s reliance on IMF data and its application of a tier-three benchmark
with respect to natural gas market value, Def.-Inter.’s Br. at 13–14, the court rejects this argument.
Plaintiffs have adequately demonstrated that they raised the relevant issues and requested a hearing
before Commerce. 6HHdRODNR÷OXDQG,oGDú&DVH%ULHIat 1, 12–15; see also Pls.’ Suppl. Br. at
24–25.
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found above, one of the benefits conferred by the GIIS program is the suspension of interest on
the contingent liability loan provided to ,oGDú Elektrik. 	As the final waiver of liability through
verification and grant of a completion visa could occur years after the issuance of the loan, the
GIIS contingent liability loan qualifies as long term under the relevant regulation. 	PDM at 18;
IDM at 36–37; 19 C.F.R. § 351.505(d). Thus, the appropriate benchmark for analysis of the total
benefit amount is the interest rate provided under a “comparable commercial loan that the recipient
could actually obtain on the market.” 19 U.S.C. § 1677(5)(E).
Nor is there evidence that Commerce unreasonably applied IMF TL interest rate
benchmarks to Plaintiffs. The applicable regulation clearly states that if Commerce finds that there
are no comparable long-term loans it can rely on the national average interest rate. See 19 C.F.R.
§ 351.505(a)(3)(ii). 	In this case, Commerce concluded that the actual long-term interest rates
obtained E\,oGDúDQG,oGDú(OHNWULNGXULQJWKHUHOHYDQWSHULRG were inappropriate for its analysis
because the variable interest rates actually obtained were “set at the time the loans were opened,”
and thus reflect only “the financial reality of the company at that time.” IDM at 37. In addition,
the provided rates were in U.S. dollars, and thus could not reflect the cost of borrowing TL during
the relevant period, while ³KDG,oGDúSDLGWKHH[HPSWHGGXWLHVLWZRXOGKDYHSDLGWKHGXWLHVLQ
TL, not USD.” IDM at 37; see also Def-Inter.’s Br. at 10.
Indeed, the court has previously sustained Commerce’s use of IMF national average
interest rates for the calculation of contingent-liability loan benefits. See MTZ Polyfilms, 33 CIT
at 1585, 659 F. Supp. 2d at 1313 (upholding reliance on a long term interest rate benchmark where
the benefit scheme closed eight years after issuance of the relevant loan, and where plaintiff
identified no comparable long-term rupee-denominated loan from a commercial bank obtained
during, or immediately before, the year under consideration); see also Usinor Sacilor v. United
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States, 19 CIT 711, 737–38, 893 F. Supp. 1112, 1135–36 (1995) (holding that Commerce’s
decision to rely upon an IMF rate benchmark was “supported by substantial evidence and []
otherwise in accordance with law” where Commerce “adequately explained its reliance upon the
IMF rates” and rejected plaintiffs’ provided rates as inapposite). As in MTZ Polyfilms and Usinor
Sacilor, Commerce here provided an adequate explanation for its reliance on the IMF data, IDM
at 37, and Plaintiffs have not identified sufficient grounds for the court to conclude such reliance
was contrary to law or unsupported by substantial evidence.
Nor do Plaintiffs adequately demonstrate that application of the IMF interest rates was
distortive. See Pls.’ Br. at 27. ,oGDú argues that, by converting the provided USD import values
to TL to apply IMF TL interest rates, Commerce introduced “a second layer of distortion” beyond
LWVUHMHFWLRQRIWKHDFWXDO86GROODULQWHUHVWUDWHV,oGDúSURYLGHGGXULQJWKHLQYHVWLJDWLRQ3O¶s
Br. at 28. However, as the Government notes, ,oGDúGRHVQRWDOOHJHWKDW&RPPHUFH¶VFDOFXODWLRQs
in fact resulted in a subsidy amount in excess of the amount that would have been received if the
loan were given as a grant. Def.’s Br. at 26. In addition, Commerce clearly explained its decision
to rely on the USD customs values for the exempted equipment, noting that “the TL value of the
exempted duties . . . would have been based on the USD invoice amount,” and thus “the amount
of the contingent liability” in TL is dependent on the TL conversion of the USD invoice amount.
IDM at 38. Thus, the court sustains Commerce’s application of IMF TL loan interest rates in its
review of the GIIS program.
V. 	Commerce Properly Measured the Adequacy of Remuneration Pursuant to 19
U.S.C. § 1677(5)(E)(iv) by Relying on Natural Gas Prices Published by the IEA
as a Tier-Three Benchmark
Plaintiffs argue that Commerce inappropriately employed a tier-three benchmark to find
that dRODNR÷OX received natural gas for less than adequate remuneration. Pls.’ Br. at 29. Plaintiffs
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do not contest Commerce’s finding that there was no usable tier-one benchmark for adequate
remuneration. 	Instead, Plaintiffs assert that Commerce improperly rejected viable tier-two
benchmark data by rejecting Plaintiffs’ submitted price data from Russia and Azerbaijan. Id. at
30. 	Specifically, Plaintiffs argue that Commerce’s reliance on tier-three IEA averages was
improper because (1) Commerce provided no evidence for its determination that the proposed tier-
two benchmark countries exercise “outsized control” over the natural gas market, and therefore
provide distorted price data, and (2) Commerce itself distorted the tier-three price data by cherry-
picking market participant gas prices. Id. at 32–33, 37. The Government and RTAC respond that
dRODNR÷OXSURYLGHVQRevidence contradicting Commerce’s finding that Russian and Azerbaijani
gas prices were unviable as a tier-two benchmark. Def.’s Br. at 37; Def-Inter.’s Br. at 16. The
court finds that Commerce’s rejection of the proposed tier-two benchmark, and reliance on a tier-
three benchmark, was in accordance with law and supported by substantial evidence. In addition,
the court holds that Commerce reasonably interpreted 19 C.F.R. § 351.511 in the development of
the tier-three benchmark.
A. 	Commerce’s Tier-Two Determination
In its Final Results, Commerce found that Russian and Azerbaijani domestic natural gas
prices are distorted by government control, and that natural gas exports from those countries
necessarily reflect these distorted prices. IDM at 17–18. Thus, Commerce concluded that neither
domestic nor export prices from Russia or Azerbaijan were viable tier-two benchmarks. 	Id. 	In
support of this conclusion, Commerce cited both its prior investigations relating to Russian and
Azerbaijani export prices. Id. at 18 (citing Preliminary Results; Steel Concrete Reinforcing Bar
From the Republic of Turkey, 82 Fed. Reg. 57,574 (Dep’t of Commerce December 6, 2017).
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Commerce’s rejection of the proposed Russian benchmark data was supported by
substantial evidence and in accordance with law. Commerce has consistently found that Russian
natural gas export prices to the EU were distorted and unsuitable as a benchmark. 	See, e.g.,
Countervailing Duty Investigation of Certain Cold-Rolled Steel Flat Products from the Russian
Federation: Final Affirmative Countervailing Duty Determination and Final Negative Critical
Circumstances Determination, 81 Fed. Reg. 49,935 (July 29, 2016); PDM at 22. Additionally, the
court has repeatedly sustained such findings. See, e.g., Rebar Trade Action Coal. v. United States
II, 43 CIT __, __, 398 F. Supp. 3d 1374, 1378–79 (2019). In particular, the court has held that “it
is reasonable . . . for Commerce to predicate its determination that Russian export prices are not
market-driven based on a pattern of abusing its ‘dominant market position in support of foreign
policy goals.’” Habaú SÕnai ve TÕbbi Gazlar østihal Endüstrisi A.ù. v. United States, 44 CIT __,
__, 459 F. Supp. 3d 1341, 1350 (2020) (quoting Remand Results at 16–17 & n.74). Commerce
does not, as Plaintiffs suggest, find that Russia “somehow . . . control[s] overall market prices,”
Pls.’ Br. at 32, but rather draws a reasonable conclusion from the available evidence. Thus, the
court sustains Commerce’s determination.
The court similarly sustains Commerce’s rejection of the proposed Azerbaijani export data.
Commerce concluded in its Final Results that, given Turkey’s distorted domestic natural gas
market, Azerbaijani natural gas export prices are likewise distorted by participation in the Turkish
market. IDM at 18. Although Plaintiffs suggest this finding “amounts to a blanket repudiation of
19 C.F.R. § 351.511(a)(2)(ii),” Pls.’ Br. at 32, the existence of a tier-three benchmark in fact
“anticipates situations where the government intervenes, such that it is the only source available
to consumers in that country.” Nucor Corp. v. United States, 42 CIT __, __, 286 F. Supp. 3d 1364,
1379 (2018) (citing CVD Preamble, 63 Fed. Reg. at 65,378). In addition, while Plaintiffs claim
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that Commerce’s determination was based on “mere speculation,” Pls.’ Br. at 32–33, Commerce
is permitted to make reasonable inferences from the record evidence. Daewoo Elecs. Co. v. United
States, 6 F.3d 1511, 1520 (Fed. Cir. 1993). 	Here, Commerce reasonably determined that the
Turkish natural gas market is distorted by GOT control, and that Azerbaijan’s exports to Turkey
are necessarily “in conformity with the Turkish market,” such that neither domestic nor export
prices in Azerbaijan reflect undistorted tier-two benchmark data. IDM at 18.
Plaintiffs fail to demonstrate that Commerce’s rejection of the proposed tier-two
benchmarks was improper or contrary to the record evidence. 	The court therefore finds that
Commerce’s determination that Russia and Azerbaijan did not provide viable tier-two benchmark
data was supported by substantial evidence and in accordance with law.
B. 	Commerce’s Tier-Three Calculations
In the Final Results, Commerce employed a tier-three benchmark in its analysis of adequate
remuneration. Commerce explained that it constructed the tier-three benchmark “based on IEA
pricing data for EU countries, adjusted for Russian exports to the EU” during the relevant period,
such that the benchmark provided as accurate an accounting of gas sales for less than adequate
remuneration as possible. IDM at 17. In particular, the benchmark incorporated “all data available
for EU countries on the record,” including data from “both IEA submissions [and] the natural gas
prices for electricity generation, as proposed by dRODNR÷OX.” IDM at 19.
Plaintiffs argue that if a tier-three benchmark is used, it should be based on the overall
average of IEA data for all EU countries, rather than limited data controlled for Russian exports.
3OV¶%UDW,QSDUWLFXODUdRODNR÷OXDVVHUWVWKDWWKH,($GDWDXVHGLVQRWUHSUHVHQWDWLYHRIWKH
EU market given its exclusion of Norway and Russia. Id. at 34. Plaintiffs argue that Commerce
essentially cherry-picked the IEA data such that the resultant benchmark is “not representative” of
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the market value of natural gas. 	Id. at 34–35. 	The Government and RTAC respond that the
unmodified IEA data could not have substantiated a market value determination, as Russian natural
gas pricing is distorted by state involvement, and that Commerce in fact relied upon all EU IEA
data in the record when reaching its final determination. IDM at 19; Def.’s Br. at 40–41; Def.-
Inter.’s Br. at 18–19.
As noted above, the court has consistently sustained Commerce’s reliance on IEA data in
constructing a natural gas benchmark. 	See Rebar Trade Action Coalition v. United States I, 43
CIT __, __, 389 F. Supp. 3d 1371 (2019); see also Habaú, 459 F. Supp. 3d 1341. Furthermore, the
court provides substantial deference to Commerce in “identifying, selecting, and applying its CVD
methodologies.” Habaú, 459 F. Supp. 3d at 1353; see also Fujitsu, 88 F.3d at 1039. Even where
Commerce’s explanation is “‘of less than ideal clarity,’” the court is obligated to “sustain a
determination . . . where Commerce’s decisional path is reasonably discernable.” Rebar I, 389 F.
Supp. 3d at 1381–82 (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983)). The question is not whether some other inference could reasonably have been
drawn, but if the record as it stands adequately supports Commerce’s determination. Id. at 1384–
85 (citing Daewoo, 6 F.3d 1511, 1520 (Fed. Cir. 1993)). The court is not tasked with determining
whether Commerce could have improved the data it relied upon. Id. Indeed, it is established that
“[a]ntidumping and [CVD] determinations involve complex economic and accounting decisions
of a technical nature, for which agencies possess far greater expertise than courts.” 	Fujitsu, 88
F.3d at 1039. Thus, so long as Commerce’s determination is reasonable, the court must uphold it.
Plaintiffs’ argument is therefore unavailing. Here, as the Government notes, the aim of the
tier-three analysis was not to precisely “estimate the price of natural gas in Europe, but to
determine the market value for natural gas as consumed in Turkey, relying on what data are
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available on the record.” Def.’s Br. at 38–39 (quoting IDM at 19); see also Def-Inter.’s Br. at 18.
Commerce clearly explained its methodology in arriving at the tier-three benchmark, and Plaintiff
has not demonstrated that the record cannot reasonably be construed to support Commerce’s
determination. IDM at 17–19. Accordingly, the court finds that Commerce reasonably measured
the adequacy of remuneration pursuant to 19 U.S.C. 1677(5)(E)(iv) by relying on IEA natural gas
prices to constitute as a tier-three benchmark.
CONCLUSION
The court finds that Commerce’s final determination was in accordance with law and
supported by substantial evidence. In particular: (1) Commerce permissibly applied partial AFA
LQUHVSRQVHWR,oGDú¶VIDLOXUHWRFRRSHUDWHZLWK&RPPHUFH¶VLQYHVWLJDWLRQWRWKHEHVWRILWVDELOLW\
(2) Commerce reasonably DWWULEXWHGWR,oGDúWKH*,,6SURJUDPEHQHILWVUHFHLYHGE\,oGDú(OHNWULN
as a cross-RZQHGLQSXWVXSSOLHU  &RPPHUFHUHDVRQDEO\LQWHUSUHWHG,oGDú¶VFXVWRPVGXW\DQG
VAT exemptions as both a grant and a contingent liability; (4) Commerce’s application of an IMF
TL loan interest rate benchmark with respect to the GIIS’s interest-free contingent liability was
appropriate under 19 U.S.C. § 1677(5)(E); and (5) Commerce permissibly resorted to a tier-three
benchmark for the market price of LNG in its assessment of adequate remuneration.
Accordingly, Plaintiffs’ motion for judgment on the agency record is denied; Commerce’s
Final Results are sustained, and judgment is entered in favor of the United States.
SO ORDERED.
/s/ 	Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: February 19, 2021
New York, New York
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