Habas Sinai Ve Tibbi Gazlar Istihsal Endüstrisi A.S. v. United States

459 F.Supp.3d 1341

HABAS SINAI VE TIBBI GAZLAR ISTIHSAL ENDÜSTRISI A.S. et al., Plaintiff and Consolidated Plaintiffs,andCharter Steel and Keystone Consolidated Industries, Inc., Consolidated Plaintiff-Intervenors,

v. UNITED STATES, Defendant,andNucor Corporation et al., Defendant-Intervenors and Consolidated Defendant-Intervenors.

Slip Op. 20-87

Consol. Court No. 18-00144

United States Court of International Trade.

June 25, 2020

David L. Simon, Law Office of David L. Simon, of Washington, DC, for Habas Sinai ve Tibbi Gazlar Istihsal Endüstrisi A.S.

Matthew M. Nolan, Arent Fox LLP, of Washington, DC, for Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. With him were Diana Dimitriuc-Quaia, Leah N. Scarpelli, Nancy Aileen Noonan, and Russell A. Semmel.

Maureen E. Thorson, Wiley Rein, LLP, of Washington DC, for Nucor Corporation. With her on the brief were Derick G. Holt and Jeffrey O. Frank.

Anna C. Motto, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, 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 was Ayat Mujais, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, Department of Commerce

OPINION AND ORDER

Kelly, Judge:

Before the court for review is the U.S. Department of Commerce's ("Commerce") remand redetermination filed pursuant to the court's order in Habas Sinai Ve Tibbi Gazlar Istihsal Endüstrisi A.S. v. United States, 43 CIT ––––, ––––, 413 F. Supp. 3d 1347, 1361 (2019) (" Habas"). See Final Results of Redetermination Pursuant to Ct. Remand, Feb. 7, 2020, ECF No. 69-1 ("Remand Results"). In Habas, the court remanded for further explanation or reconsideration Commerce's final determination in the countervailing duty ("CVD") investigation of carbon and alloy steel wire rod from the Republic of Turkey ("Turkey"). See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1350-51, 1561 ; see also Carbon and Alloy Steel Wire Rod from [Turkey], 83 Fed. Reg. 13,239 (Dep't Commerce Mar. 28, 2018) (final affirmative [CVD] determination & final affirmative critical circumstances determination in part) ("Final Results"), and accompanying Issues & Decision Memo. for Final Affirmative Determination, Mar. 19, 2018, ECF No. 20-4 ("Final Decision Memo"); see also Carbon and Alloy Steel Wire Rod From [Turkey], 83 Fed. Reg. 23,420 (Dep't Commerce May 21, 2018) (amended final affirmative [CVD] determination for [Turkey] and [CVD] orders for Italy and [Turkey] ) ("CVD Order"). The court instructed Commerce to further explain or reconsider its selection of Eurostat data on natural gas import prices from Russia into Turkey ("Russian Eurostat data") as a tier two benchmark against which to measure the adequacy of remuneration for purchases of natural gas from the Government of Turkey ("GOT"). See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1356-61.

On remand, Commerce reconsiders its reliance on Russian Eurostat data as a tier two benchmark, and instead relies on data from an International Energy Administration ("IEA") report that Commerce adjusts to construct a tier three benchmark. See Remand Results at 6-7, 10-11. For the following reasons, the court sustains Commerce's remand redetermination.

BACKGROUND

The court presumes familiarity with the facts of this case, as set out in the previous opinion ordering remand to Commerce, and now recounts the facts relevant to the court's review of the Remand Results. See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1349-52. On March 28, 2018, Commerce published its final determination pursuant to its CVD investigation of carbon and alloy steel wire rod from Turkey. See Final Results, 83 Fed. Reg. at 13,240. Commerce selected Habas Sinai Ve Tibbi Gazlar Istihsal Endüstrisi A.S. ("Habas") and Icdas Celik Enerji Tersane ve Ulasim, A.S. ("Icdas") as mandatory respondents for individual investigation. See Respondent Selection Memo. at 1, PD 67, bar code 3577988-01 (June 2, 2017);¹ see also Decision Memo. for Preliminary Determination in [CVD] Investigation of Carbon and Alloy Steel Wire Rod from [Turkey] at 4, C-489-832, Aug. 25, 2017, available at https://enforcement.trade.gov/frn/summary/turkey/2017-18640-1.pdf (last visited June 18, 2020) ("Preliminary Decision Memo"). Commerce relied on facts otherwise available with an adverse inference ("adverse facts available" or "AFA")² to determine subsidy rates for Habas and Icdas after discovering unreported information about respondents’ use of the GOT's "Assistance to Offset Costs Related to AD/CVD Investigations" program. Final Decision Memo at 4-7. When determining whether Habas benefited from its purchase of natural gas from the GOT for less than adequate remuneration ("LTAR"), Commerce reconsidered its preliminary reliance on IEA data as a tier two benchmark, opting instead to rely on Russian Eurostat data. See Final Decision Memo at 13-14. Commerce assigned subsidy rates of 3.86 percent and 3.81 percent to Habas and Icdas, respectively. Final Results, 83 Fed. Reg. at 13,240.

Habas, Icdas, and Nucor Corporation ("Nucor") commenced separate actions pursuant to Section 516A of the Tariff Act of 1930, 19 U.S.C. § 1516a, and 28 U.S.C. § 1581(c) (2012),³ which were later consolidated. See Summons, June 19, 2018, ECF No. 1; Compl., July 12, 2018, ECF No. 6; Order, Sept. 20, 2018, ECF No. 23 (consolidating Court No. 18-00144, Court No. 18-00146, and Court No. 18-00148 under Court No. 18-00144). Habas and Icdas challenged Commerce's application of adverse facts available to determine their subsidy rates. See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1352-56. Nucor separately challenged Commerce's selection of benchmark data to calculate the benefit associated with purchases of natural gas for LTAR from the GOT. See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1356-61. The court sustained Commerce's application of AFA to Habas and Icdas, but remanded Commerce's selection of the Russian Eurostat data as a tier two benchmark for further explanation or reconsideration. See Habas, 43 CIT at ––––, 413 F. Supp. 3d at 1352-61. Specifically, the court instructed Commerce to further explain or reconsider its decision not to use the IEA data as a tier two benchmark, as well as its decision to rely on Russian Eurostat data. Id.

On remand, Commerce placed new factual information ("NFI") on the record that tended to demonstrate export prices for natural gas from Russia were distorted by Russian foreign policy objectives, and invited the parties to comment and supplement the record with their own factual submissions. See Jan. 14^th NFI Memo., PRRs 4-8, bar code 3930375-01-05 (Jan. 14, 2020). Nucor submitted NFI that tended to corroborate Commerce's NFI. See e.g., Nucor's Jan. 16^th NFI Memo., PRR 16, bar code 3932768-01 (Jan. 16, 2020) ("Nucor's Jan. 16^th NFI Memo"). Habas submitted rebuttal NFI from, inter alia, the United Nations’ COMTRADE database ("COMTRADE data"). See Habas’s Rebuttal NFI & Cmts., PRRs 10-13, bar codes 3932460-01-04, CRRs 1-5, bar codes 3932448-01, 3932452-01-04 (Jan. 16, 2020)⁴ ("Habas’s Rebuttal NFI & Cmts.").

Commerce reconsidered its reliance on Russian Eurostat data as a tier two benchmark. See Remand Results at 5-11. In so doing, Commerce determined that prices for sales of natural gas from Russia into the European Union ("EU") were inappropriately based on Russian foreign policy objectives instead of commercial considerations. Id. Further, Commerce determined that both the COMTRADE data placed on the record by Habas, and the Russian Eurostat data, likely contain pricing information for compressed natural gas ("CNG").⁵ Id. Thus, Commerce rejected both sources for use as a tier two or tier three benchmark. Id. Since some of the countries used to source the IEA report are not connected to Turkey by pipeline, Commerce inferred that the data does not reflect prices available to Turkish purchasers, and declined to use the IEA data as a tier two benchmark. Id. Commerce instead relied on the IEA data as a tier three benchmark, and adjusted the IEA reported average unit value ("AUV") for natural gas to account for the distortive effect of Russian export prices on the AUV for natural gas. Id.

JURISDICTION AND STANDARD OF REVIEW

The court exercises jurisdiction pursuant to 19 U.S.C. § 1516a and 28 U.S.C. § 1581(c) (2012), which grant the Court authority to review final determinations in a CVD investigation. "The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(i). "The results of a redetermination pursuant to court remand are also reviewed ‘for compliance with the court's remand order.’ " Xinjiamei Furniture (Zhangzhou) Co. v. United States, 38 CIT ––––, ––––, 968 F. Supp. 2d 1255, 1259 (2014) (quoting Nakornthai Strip Mill Public Co. v. United States, 32 C.I.T. 1272, 1274, 587 F. Supp. 2d 1303, 1306 (2008) ).

DISCUSSION

I. Reliance on IEA Data

Habas challenges Commerce's reliance on the IEA data as a tier three benchmark against which to measure the adequacy of remuneration for purchases of natural gas from the GOT. See [Pl. Habas’s Cmts.] Opp'n [Remand Results ] at 3-32, Mar. 9, 2020, ECF No. 71 ("Habas’s Br."). Habas submits that Commerce "erred in rejecting the reliability of" the Russian Eurostat and COMTRADE data and "failed to adequately consider evidence" weighing against use of the IEA data. See Habas’s Br. at 17-32. Defendant and Nucor counter that Commerce's determinations are reasonable and accord with agency practice. See Def.’s Resp. Cmts. [Remand Results ] at 11-25, Apr. 7, 2020, ECF No. 76 ("Def.’s Br."); [Nucor's] Opp'n to Pl. Habas’s Cmts. on [Remand Results ] at 5-20, Apr. 7, 2020, ECF No. 77 ("Nucor's Br."). For the following reasons, Commerce's decision to rely on the IEA data is supported by substantial...