                                   Slip Op. 20-87

          UNITED STATES COURT OF INTERNATIONAL TRADE


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              Plaintiff and Consolidated
              Plaintiffs,

  and

  CHARTER STEEL and KEYSTONE
  CONSOLIDATED INDUSTRIES, INC.,
                                                     Before Claire R. Kelly, Judge
              Consolidated Plaintiff-
              Intervenors,                           Consol. Court No. 18-00144

  v.

  UNITED STATES,

              Defendant,

  and

  NUCOR CORPORATION ET AL.,

              Defendant-Intervenors and
              Consolidated Defendant-
              Intervenors.




                             OPINION AND ORDER

[Sustaining the Department of Commerce’s remand redetermination in the
countervailing duty investigation of carbon and alloy steel wire rod from the Republic
of Turkey.]
                                                                 Dated: June 25, 2020
Consol. Court No. 18-00144                                                    Page 2

David L. Simon/DZ2IILFHRI'DYLG/6LPRQRI:DVKLQJWRQ'&IRU+DEDü6LQDL
YH7LEEL*D]ODU,VWLKVDO(QGVWULVL$û

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

      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 +DEDü

6LQDL9H7LEEL*D]ODU,VWLKVDO(QGVWULVL$ûY8QLWHG6WDWHV, 43 CIT __, __, 413 F.

Supp. 3d 1347, 1361 (2019) (“+DEDü”).       See Final Results of Redetermination

Pursuant to Ct. Remand, Feb. 7, 2020, ECF No. 69-1 (“Remand Results”). In +DEDü,

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 +DEDü, 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”);
Consol. Court No. 18-00144                                                   Page 3

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 +DEDü, 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.

                                 %$&.*5281'

      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 +DEDü, 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 +DEDü 6LQDL 9H 7LEEL

Gazlar Istihasal EndustULVL$û(“+DEDü”) and Icdas Celik Enerji Tersane ve Ulasim,
Consol. Court No. 18-00144                                                         Page 4

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

VXEVLG\ UDWHV IRU +DEDü DQG ,FGDV DIWHU GLVFRYHULQJ XQUHSRUWHG LQIRUPDWLRQ DERXW

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

+DEDüEHQHILWHGfrom its purchase of natural gas from the GOT for less than adequate



1 On August 21, 2018, Defendant filed indices to the public and confidential
administrative records underlying Commerce’s final determination, on the docket, at
ECF No. 20-5–6. On February 21, 2020, Defendant filed indices to the public and
confidential administrative records underlying Commerce’s remand redetermination
at ECF No. 70-2–3. All references to documents from the initial administrative record
are identified by the numbers assigned by Commerce in the August 21st indices, see
ECF No. 20, and preceded by “PD” or “CD” to denote the public or confidential
documents.      All references to the administrative record for the remand
redetermination are identified by the numbers assigned in the February 21st indices,
see ECF No. 70, and preceded by “PRR” or “CRR” to denote remand public or
confidential documents.
2 Parties and Commerce sometimes use the shorthand “adverse facts available” or
“AFA” to refer to Commerce’s reliance on facts otherwise available with an adverse
inference to reach a final determination. See, e.g., Final Results, 83 Fed. Reg. at
13,240; Final Decision Memo at 4–7. However, AFA encompasses a two-part inquiry
pursuant to which Commerce must first identify why it needs to rely on facts
otherwise available, and, second, explain how a party failed to cooperate to the best
of its ability as to warrant the use of an adverse inference when “selecting among the
facts otherwise available.” See 19 U.S.C. § 1677e(a)–(b).
Consol. Court No. 18-00144                                                      Page 5

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

SHUFHQWWR+DEDüDQG,FGDVUHVSHFWLYHO\Final Results, 83 Fed. Reg. at 13,240.

      +DEDü ,FGDV, 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- +DEDüDQG,FGDV challenged Commerce’s application of

adverse facts available to determine their subsidy rates. See +DEDü, 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 +DEDü, 43 CIT at __, 413 F. Supp. 3d at 1356–61. The court

sustained Commerce’s application of AFA WR +DEDü DQG ,FGDV, but remanded

Commerce’s selection of the Russian Eurostat data as a tier two benchmark for

further explanation or reconsideration. See +DEDü, 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.


3 Further citations to the Tariff Act of 1930, as amended, are to the relevant
provisions of Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 18-00144                                                  Page 6

      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. 14th 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. 16th NFI Memo., PRR 16, bar

code 3932768-01 (Jan. 16, 2020) (“Nucor’s Jan. 16th NFI Memo”). +DEDüsubmitted

rebuttal NFI from, inter alia, the United Nations’ COMTRADE database

(“COMTRADE data”). See +DEDü·V5HEXWWDO1), &PWV355V–13, bar codes

3932460-01–04, CRRs 1–5, bar codes 3932448-01, 3932452-01–04 (Jan. 16, 2020) 4

´+DEDü·V5HEXWWDO1), &PWVµ 

      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

SODFHGRQWKHUHFRUGE\+DEDüDQGWKHRussian Eurostat data, likely contain pricing




4 Cites to page numbers in Exhibit 1 of +DEDü’s Rebuttal NFI & Cmts are external,
i.e., they do not correspond to the pagination printed on the documents contained in
the exhibit, as these documents do not appear to be consistently paginated.
Consol. Court No. 18-00144                                                     Page 7

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.

                -85,6',&7,21$1'67$1'$5'2)5(9,(:

      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 CIT 1272, 1274, 587 F. Supp. 2d 1303, 1306 (2008)).




5 Commerce investigated respondents’ purchases of natural gas for power
generation—i.e., natural gas in its gaseous form exclusive of CNG and liquified
natural gas—from the GOT. See Preliminary Decision Memo at 15–16; Final
Decision Memo at 13–14.
Consol. Court No. 18-00144                                                     Page 8

                                   DISCUSSION

I.    Reliance on IEA Data

      +DEDü FKDOOHQJHV &RPPHUFH·V UHOLDQFH RQ 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 >3O+DEDü·V&PWV@2SS·Q>Remand Results] at 3–32,

MaU(&)1R ´+DEDü·V%Uµ +DEDüVXEPLWVWKDW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 +DEDü·V

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. +DEDü’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 evidence.

      Commerce imposes a CVD when it determines that a foreign government

provided a financial contribution resulting in a benefit to the recipient, and the

government’s provision of goods is for LTAR. See 19 U.S.C. § 1677(5)(E). Commerce

measures the adequacy of remuneration “in relation to prevailing market conditions

for the good . . . being provided” in the country subject to review.        19 U.S.C.

§ 1677(5)(E)(iv). Its regulations set out a hierarchy of methodologies to identify the

appropriate benchmark. 19 C.F.R. § 351.511(a)(2). Under the “tier one” benchmark,
Consol. Court No. 18-00144                                                    Page 9

Commerce compares the “government price to a market-determined price for the good

or service resulting from actual transactions in the country in question.” Id. at

§ 351.511(a)(2)(i). If in-country market prices are not available, then under the tier

two benchmark, Commerce “compar[es] the government price to a world market price

where it is reasonable to conclude that such price would be available to purchasers in

the country in question.” Id. at § 351.511(a)(2)(ii). Should that benchmark also be

unavailable, Commerce will measure remuneration with the tier three benchmark,

which “assess[es] whether the government price is consistent with market

principles.” Id. at § 351.511(a)(2)(iii).

       On remand, Commerce now reconsiders its reliance on Russian Eurostat data

as a tier two benchmark, and considers for the first time the COMTRADE data placed

RQWKHUHFRUGE\+DEDü. See generally +DEDü·V5HEXWWDO1), &PWVCommerce

finds both the Russian Eurostat and COMTRADE data unreliable for use as a tier

two benchmark due to distortions in the export prices of natural gas from Russia into

the EU, and also finds both sources unreliable for use as a tier three benchmark due

to the likelihood that the pricing data contains information on CNG. 6 See Remand

Results at 6–7, 26.

       Commerce initially predicated its determination that Russian Eurostat data

constitutes a reliable tier two benchmark on two findings. First, Commerce found


6Commerce continues to find that there was no usable market-determined “tier one”
benchmark because of the GOT’s “overwhelming involvement” in Turkey’s natural
gas market, which distorts private transaction prices. See Remand Results at 6; see
also Preliminary Decision Memo at 15–16; Final Decision Memo at 13.
Consol. Court No. 18-00144                                                    Page 10

that Turkish purchasers had access to natural gas from Russia through pipelines,

thus satisfying the requirement under 19 C.F.R. § 351.511(a)(2)(ii) that the agency

reasonably conclude that the prices used as the tier two benchmark “would be

available to purchasers in the country in question.” See Final Decision Memo at 13;

see also 19 C.F.R. § 351.511(a)(2)(ii). Second, Commerce found that there was no

record evidence to demonstrate that Russian governmental influence over domestic

prices for natural gas—as exerted via monopoly control of the market through

Gazprom, a Russian state-owned entity—extended to Russian export prices for

natural gas. See Remand Results at 6 (citing Preliminary Decision Memo at 13).

      Commerce reconsiders the latter finding, and now determines, based on

additional analysis and information placed on the record, that Russian export prices

for natural gas are influenced by Russian foreign policy objectives. 7 Id. at 6–7.

Namely, Commerce cites an EU Parliament Report provided by petitioners, which

indicates that Russia “uses its energy wealth” to “protect and promote its interests in


7 Prefacing its remand analysis, Commerce invokes recent CVD proceedings involving
Turkey that likewise determine Russian export prices for natural gas to be influenced
by foreign policy objectives. See Remand Results at 6 (citing Steel Concrete
Reinforcing Bar from [Turkey], 84 Fed. Reg. 36,051 (Dep’t Commerce July 26, 2019)
(final results and partial rescission of [CVD] admin. review; 2016) (“Turkey Rebar II”)
and accompanying Issues and Decisions Memo. for [Turkey Rebar II] at 16–17, C-
489-819,            (July            18,         2019)           available          at
https://enforcement.trade.gov/frn/summary/turkey/2019-15824-1.pdf (last visited
June 18, 2020) (“Turkey Rebar II IDM”) and Steel Concrete Reinforcing Bar From
[Turkey], 84 Fed. Reg. 48,583 (Dep’t Commerce Sept. 16, 2019) (prelim. results of
[CVD] admin. review; 2017) (“Turkey Rebar III”) and accompanying Prelim. Decision
Memo. for [Turkey Rebar III] at 11, C-489-830, (Sept. 6, 2019) available at
https://enforcement.trade.gov/frn/summary/turkey/2019-19921-1.pdf (last visited
June 18, 2020).
Consol. Court No. 18-00144                                                      Page 11

its ‘near abroad’ and to make its geopolitical influence felt further afield, including in

Europe.” Remand Results at 17 (quoting Nucor’s Jan. 16th NFI Memo at Attachment

1) (emphasis removed). According to Commerce, the EU Parliament Report provides

“multiple instances in which Russia likely used its energy leverage for political

purposes,” and notes that “many of the affected countries were within the EU.” Id.

(citing Nucor’s Jan. 16th NFI Memo Attachment 1 at 13, 15–16). Commerce thus

determines that the Eurostat data and COMTRADE data, covering exports of natural

gas from Russia into Turkey, are influenced by foreign policy objectives and thus

unsuitable for use as a tier two benchmark. See id. at 6–7, 16 n.67.

      Commerce also revisits its finding that Eurostat data on natural gas is not

distorted by prices for CNG. See Remand Results at 4–5, 7, 26–27; +DEDü, 413 F.

Supp. 3d at 1359–60. Commerce now finds that prices for natural gas contained in

the customs-sourced data—i.e., the Eurostat data and COMTRADE data—are likely

distorted by pricing data for CNG. See Remand Results at 7, 26–27. Commerce

explains that, similar to the benchmark data from the Global Trade Atlas (“GTA”)

that it rejected in the Final Results, 8 the Russian Eurostat and COMTRADE data

“relate to HTS subheading 2711.21” which “cover[s] natural gas in its gaseous state.”

Remand Results at 26; see also id. at 4 (citing +DEDü, 43 CIT at __, 413 F. Supp. 3d




8+DEDü SURYLGHG EHQFKPDUN GDWD IURP WKH *OREDO 7UDGH $WODV ´*7$µ  (XURVWDW
and Energy Experts international. See /HWWHU)URP+DEDüUH%HQFKPDUNLQJ'DWD
PD 101, bar code 3599709-01 (July 26, 2017) ´+DEDü·V1),µ .
Consol. Court No. 18-00144                                                   Page 12

at 1359–60). 9 Commerce infers that “at least a portion of imports under this heading

are likely [CNG],” because natural gas can only be delivered by pipeline, and the

HTS subheading contains “exports from the rest of the world, including countries that

are not connected to the EU via pipeline[.]” Remand Results at 27. $OWKRXJK+DEDü

cites evidence that most of the COMTRADE data under HTS 2711.21 covers EU

imports of natural gas from countries connected by pipeline, see +DEDü·V%UDW–

22, 10 Commerce explains that it cannot identify the extent to which the heading



9 +DEDü argues that, unlike the GTA data, the COMTRADE data does not present
any conversion issues. See +DEDü%UDW–28; see also +DEDü, 43 CIT at __, 413 F.
Supp. 3d at 1360. +DEDü DGGV WKDW XQOLNH WKH 5XVVLDQ (XURVWDW GDWD WKH
COMTRADE data is not limited to EU data on imports from Russia. See +DEDü·V%U
at 27. Although Commerce mentions that the customs-sourced trade data “requires
conversions of varying complexities at the time of data collection [,]” Remand Results
at 21, +DEDü's arguments are rendered inapposite by the fact Commerce predicates
its determination not to rely on the COMTRADE customs-sourced data on its
inference that an indeterminate portion of pricing data under the HTS 2711.21
subheading relates to CNG. See Remand Results at 7 & n.30; see also id. 26–27.
10 +DEDüDOOHJHVWKDW&RPPHUFHLJQRUHVUHFRUGHYLGHQFHWKDWGHPRQVWUDWHVLPSRUWV
under the HTS 2711.21 subheading contain only a negligible amount of CNG, if any
at all. +DEDü·V%U at 19– FLWLQJ'DWDWR&RPPHUFH3HUWDLQLQJWR+DEDü355
bar code 3932464- -DQ +DEDüH[SOLFDWHVWKDWSHUFHQW of natural
gas imports into the EU come from pipeline suppliers, and that the remaining
percentage of imports are either too small to be relevant (i.e., data from the United
States and Serbia), are from suppliers that Commerce does not consider in its
calculations (i.e., Turkey), or are from suppliers that the EU pipeline runs through
(i.e., Switzerland). See id. at 20 (citing +DEDü·V5HEXWWDO1), &PWV([DW .
+DEDü DGGV WKDW EHFDXVH WKH (8 SLSHOLQH UXQV WKURXJK 6ZLW]HUODQG LPSRUW data
from Switzerland under HTS 2711.21 would relate to imports of natural gas, and
submits that even if Swiss import data under the HTS 2711.21 contains data for CNG,
“the quantity is negligible[,] and the unit value is in line with the AUVs of other
suppliers.” Id. +RZHYHUDV1XFRUQRWHV+DEDü·Vreasoning rests on an unsupported
presumption that there is no trade in CNG between states connected by pipelines.
See Nucor’s Br. at 7. Further, +DEDü·Vargument, even if true, fails to demonstrate
that Commerce’s selection of the IEA data is unreasonable. See Def.’s Br. at 17.
Consol. Court No. 18-00144                                                       Page 13

covers values and quantities relating to shipments of CNG. 11 Remand Results at 26–

27. Commerce thus declines to rely on the Russian Eurostat or COMTRADE data to

construct a tier two or tier three benchmark. Id. at 7, 26–27.

      As for the IEA data, Commerce, pursuant to a tier three analysis, 12 reasonably

determines that the IEA report is the only transparent and reliable source of

benchmark data against which to measure the adequacy of remuneration for the

provision of natural gas from the GOT to respondents. See Remand Results at 8–11,




11 Stating that “there is no evidence on the record that there is any value difference
between [natural gas] and CNG” and that the two products “share[ ] the same HTS
FDWHJRU\µ+DEDüLQIHUVWKDW´WKHUHLVUHDVRQWREHOLHYHWKDWWKHGLIIHrences [in unit
value] between [natural gas and CNG@ LV LQVXEVWDQWLDOµ  +DEDü·V %U DW –22.
+DEDü FLWHV QR UHFRUG HYLGHQFH WR VXSSRUW WKLV LQIHUHQFH DQG LW LV UHDVRQDEO\
discernable that Commerce infers, conversely, that the difference in unit value
between CNG and natural gas is significant. See Remand Results at 26–+DEDü·V
provision of another possible inference alone fails to demonstrate that Commerce’s
inference is unreasonable. See Daewoo Elecs. Co. v. Int'l Union of Elec., Elec., Tech.,
Salaried & Mach. Workers, 6 F.3d 1511, 1520 (Fed. Cir. 1993). +DEDüDOVRVXEPLWV
that Commerce initially inferred that customs data for Russian export of natural gas
did not include CNG, suggesting that it is arbitrary and capricious for Commerce to
infer the opposite on remand without citing additional evidence. See +DEDü%UDW
(citing Final Decision Memo at 13). However, the court remanded Commerce’s
determination on this issue for further explanation or reconsideration. See +DEDü,
413 F. Supp. 3d at 1359–60 (“Commerce appears to have selected the Russian
Eurostat data even though it, too, may contain CNG. Commerce does not address
this evidence or explain why, unlike the GTA data, the Russian Eurostat data
reasonably reflect natural gas, exclusive of [liquid natural gas] and CNG.”).
12Commerce determines that the IEA data does not constitute an appropriate tier
two benchmark because the data does not relate to prices for natural gas available to
Turkish purchasers by countries connected to Turkey by pipeline. See Remand
Results at 7.
Consol. Court No. 18-00144                                                    Page 14

26–27.   Consistent with its regulatory preference, 13 Commerce initially assesses

whether government prices for natural gas in Turkey are determined based on

market principles, and determines that they are not for reasons undisputed by the

parties. 14 See id. at 8–11; see also 19 C.F.R. § 351.5111(a)(2)(iii). Having determined

that the Russian Eurostat and COMTRADE data are unusable for purposes of a tier

two or tier three analysis, Commerce does not consider whether the COMTRADE and

Russian Eurostat data conform with market principles. See Remand Results at 7–




13 In relevant part, the CVD Preamble notes, with respect to tier three benchmark
prices, that “in situations where the government is clearly the only source available
to consumers in the country,” Commerce “normally will assess whether the
government price was established in accordance with market principles.” See
Countervailing Duties, 63 Fed. Reg. 65,348, 65,378 (Dep't Commerce Nov. 25, 1998)
(final rule) (“CVD Preamble”). Where Commerce determines that the government
price is not set in accordance with market principles, it resorts to “an appropriate
proxy to determine a market-based natural gas benchmark.” Remand Results at 9
(citing Countervailing Duty Investigation of Certain Cold-Rolled Steel Flat Products
From the Russian Federation, 81 Fed. Reg. 49,935 (Dep’t Commerce July 29, 2016)
(final affirmative [CVD] determination and final negative critical circumstances
determination) (“Cold-Rolled Steel from Russia”) and accompanying Issues and
Decisions Memo. for [Cold-Rolled Steel from Russia] at cmt. 7, C-821-823, (July 20,
2016) available at https://enforcement.trade.gov/frn/summary/russia/2016-17937-
1.pdf (last visited June 18, 2020). (“Cold Rolled Steel from Russia IDM”)).
14&RPPHUFHREVHUYHVWKDWDOORIWKHERDUGPHPEHUVRI%RUX+DWODULLOH3HWURO7DüLPD
$û ´%27$6µ  WKH VWDWH HFRQRPLF HQWHUSULVH IURP ZKLFK +DEDü SXUFKDVHV LWV
natural gas, are appointed by approval of the Turkish President and Turkish Prime
Minister. Remand Results at 8 (citing Preliminary Decision Memo at 14). Further,
Commerce cites record evidence indicating, inter alia, that BOTAS does not operate
as a profit seeking independent venture; that Turkey’s domestic gas market is
distorted both by inconsistent application of BOTAS’s pricing mechanism as well as
BOTAS’s practice of setting tariffs for eligible consumers at below the weighted-
average cost of gas; and that BOTAS operates at possible losses due to its pricing
policy. See Remand Results at 8–9 (citations omitted). These findings were not
challenged below.
Consol. Court No. 18-00144                                                    Page 15

11, 26–27; see also 19 C.F.R. § 351.511(a)(2)(iii). Accordingly, Commerce determines

that the only reliable benchmark source is the IEA data. Id. at 10–11.

      First, unlike the COMTRADE and Russian Eurostat data, which are customs-

sourced, Commerce observes that the IEA report contains prices of natural gas to

end-use consumers, eliminating the possibility of capturing prices for natural gas that

are subject to subsequent transactions. 15     See Remand Results at 20.        Second,

acknowledging +DEDü·V concern that the IEA report is sourced on a country-specific

basis, and that data collection methodologies may differ between sources, Commerce

notes that the IEA report also provides its methodological descriptions on a country-

specific basis. 16 Id. Commerce further addresses +DEDü·V concerns regarding the

distortive effect of inconsistent collection methodologies by explaining that the agency




15HDEDü argues that Commerce’s “level-of-trade” consideration is “bogus,” alleging
that it has not prevented Commerce from relying on customs data in other
SURFHHGLQJV+DEDü·V%UDW citations omitted). +DEDümisrepresents Commerce’s
position. Commerce is not claiming that it cannot rely on customs data; rather, the
agency cites the fact that IEA report contains prices to end users as one reason why
the data is preferable in this instance. Further, +DEDü·V EDUH FKDUDFWHUL]DWLRQ RI
Commerce’s reasoning as a “post hoc rationalization” is unclear, and otherwise
unavailing. See id.
16 +DEDü·V also claims that the “opacity” of the methodological description
DFFRPSDQ\LQJWKH3ROLVKGDWDLV´PDQLIHVWµ+DEDü·V%UDW Commerce disagrees
that the IEA report lacks methodological transparency and reasonably explains why
the methodological descriptions are sufficient. Remand Results at 19–20. The court
declines to reweigh the evidence.
Consol. Court No. 18-00144                                                  Page 16

is “construct[ing] a broad benchmark covering numerous countries.”17 Id. It is

reasonably discernible that Commerce views the breadth of the IEA data used to

construct the benchmark as sufficient to ameliorate any distortions caused by varying

collection methodologies. 18 See Borusan Mannesmann Boru Sanayi ve Ticaret A.û.

v. United States, 41 CIT __, __, 222 F. Supp. 3d 1255, 1266–67 (2017) (quoting NMB

Singapore Ltd. v. United States, 557 F.3d 1316, 1319–20 (Fed. Cir. 2009)); CS Wind

Vietnam Co. v. United States, 832 F.3d 1367, 1373, 1376–77 (Fed. Cir. 2016).

      +DEDü DUJXHV &RPPHUFH·V GHWHUPLQDWLRQ that Russian export prices are

influenced by foreign policy objectives is not supported by substantial evidence.

+DEDü%UDW–+DEDü claims that Commerce fails to identify any evidence that

specifically demonstrates prices for natural gas from Russia into the EU were




17+DEDüDUJXHVWKDW&RPPHUFHFannot test whether differences between the country-
specific methodologies that source the IEA report undermine the accuracy of the data.
+DEDü·V %U DW   Again, Commerce observes that the IEA report provides
descriptions for each source’s methodology, and that such concerns are limited here,
where the agency is using the data to construct “a broad benchmark covering
numerous countries.” Remand Results at 20.
18 Commerce also argues that agency precedent supports the reliability of the IEA
data as a tier three benchmark. See Remand Results at 9–10, 19, 22 (citing Turkey
Rebar II IDM at 19; Steel Concrete Reinforcing Bar from the [Turkey], 82 Fed. Reg.
23,188 (Dep’t Commerce May 22, 2017) (final affirmative [CVD] determination)
(“Turkey Rebar I”) and accompanying Issues and Decisions Memo. for [Turkey Rebar
I]    at     cmt.     4,   C-489-830,    (May     15,    2017)    available     at
https://enforcement.trade.gov/frn/summary/turkey/2017-10505-1.pdf (last visited
June 18, 2020).
Consol. Court No. 18-00144                                                      Page 17

distorted by foreign policy objectives during the period of investigation. 19 See id.

However, it is reasonable here 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.” See Remand Results

at 16–17 & n.74 (citing Nucor’s Jan. 16th NFI Memo, Attachment 1 at 13). Moreover,

+DEDü FODLPV WKDW LW LV ´VKHHU VSHFXODWLRQ RQ &RPPHUFH·V SDUW WR SUHVXPH WKDW

Russian pricing to the EU is political[,]” id. at 23, but appears to ignore the segments

of the EU parliament report that Commerce cites to demonstrate that prices for

Russian exports of natural gas into the EU “are driven to a great extent by [Russian]

geo-political concerns[.]” See Remand Results at 16–17. As Commerce explains:

      +DEDü GRZQSOD\V WKH VLJQLILFDQFH RI WKLV LQIRUPDWLRQ )LUVW +DEDü
      asserts that the [Government of Russia’s] geo-political influence in the
      energy market is limited to “near abroad” countries within the Russian
      sphere of influence and does not extend to the EU. Record evidence
      indicates otherwise. For example, the European Parliament Report
      provided by the petitioners observed that “Russia uses its energy wealth
      as well to protect and promote its interests in its ‘near abroad’ and to
      make its geopolitical influence felt further afield, including in Europe.
      The report provides multiple instances in which Russia likely used its
      energy leverage for political purposes, and many of the affected
      countries were within the EU.



19 +DEDüDOVRDSSHDUVWRDUJXHWKDW5XVVLDFRXOGQRWH[HUWFRQWURORYHUH[SRUWSULFHV
for natural gas because Gazprom is contractually required to sell to the EU under
long-term contracts with prices pegged to the world-market price of oil. See +DEDü·V
Br. at 9 (citing +DEDü·V1), at 4–5). However, Commerce cites evidence that these
contracts can be, and are, re-negotiated on a country specific basis, and that the share
of contracts with prices pegged to the price of oil is shrinking. Remand Results at 17
(citing Nucor’s Jan. 16th NFI Memo, Attachment 1 at 13; Nucor’s Jan. 17th
Clarification on NFI at Attachment 1, PRRs 17–18, bar codes 3933483-01–02 (Jan.
17, 2020)).
Consol. Court No. 18-00144                                                    Page 18

Remand Results at 17 (citing Nucor’s Jan. 16th NFI Memo, Attachment 1 at 13, 15–

16); see also Nucor’s Br. at 10 (citing Nucor’s Jan. 16th NFI Memo, Attachment 1 at

4–5). 5HJDUGOHVV+DEDü urges that the “secondary information” Commerce relies on

should give way to “primary information”—namely, the statistical conformity that

purportedly exists between the Russian Eurostat and COMTRADE trade statistics.

See +DEDü·V%UDW4. However, as explained, Commerce finds the trade statistics

unreliable as a source of benchmark data in this instance. See Remand Results at

18.    Further, contrary to +DEDü·V FODLP WKDW &RPPHUFH ´VLGHVWHSV DQ\ DQDO\VLV

LQYROYLQJWKH&RPWUDGH(XURVWDWGDWD>@µ+DEDü·V%UDW&RPPHUFHREVHUYHs that

it “do[es] not view the COMTRADE data as ‘cross-validated’ with the Eurostat data[

] DV+DEDüXUJHVµEHFDXVHRI´DQDSSUR[LPDWHO\SHUFHQWGLIIHUHQFH[in total import

value for the EU] between the two datasets” in “the total import value for the EU-28

from Russia[.]” Remand Results at 27 n. 97.

        +DEDüDOVRFKDllenges the reliability of the IEA data. Namely, +DEDüDUJXHV

that the inclusion of household prices for natural gas in the IEA’s Austrian-sourced

data undermines the report’s reliability as a source for benchmark data because

+DEDü purchases natural gas for electricity generation. See +DEDü·V %UDW –31.

+DEDüalso claims that the IEA data is not limited to natural gas provided by pipeline.

See +DEDü·V%UDW–32; but see Nucor’s Br. 9–10, 14–15. 20



20   Nucor submits that these arguments were not exhausted before the agency. See

                                                                  (footnote continued)
Consol. Court No. 18-00144                                                    Page 19

      &RQWUDU\WR+DEDü·Vsuggestion that all end-use prices for natural gas included

in the IEA’s Austrian-sourced data contain information from household users, see

+DEDü·V Br. at 31, the cited section of the IEA report indicates that industrial prices

and household prices are calculated by using different methodologies, which

demonstrates the data for those categories of prices are given separate consideration.

See Jan. 14th NFI Memo. Ex. 10, Attachment 3 at 57, PRR 8, bar code 3930375-05

(Jan. 14, 2020) (“IEA Report”) (describing distinct methodologies for calculating or

deriving industrial prices and household prices).      Further, the preceding tables

containing the data produced by those methodologies distinguish between industry

prices and household prices. See id. at 53–57. From Commerce’s commendations of

the IEA report’s “substantial methodological information,” it is reasonably discernible

that Commerce viewed the tables and the accompanying methodological descriptions

and determines that the industry prices do not contain household prices. See Remand

Results at 19–20.




Nucor’s Br. at 9–10, 14– FLWLQJ+DEDü·V%UDW–+DEDü·VRebuttal NFI & Cmts.
at 11–+DEDü’s Draft Comments at 10–12, PRR 25, bar code 3935224-01 (Jan. 23,
2020) (“+DEDü’s Draft Cmts.”)). Absent a strong contrary reason, parties are
generally required to present all issues and arguments to Commerce at the time that
the agency is addressing the issue. See Boomerang Tube LLC v. United States, 856
F.3d 908, 912–913 (Fed. Cir. 2017); Dorbest Ltd. v. United States, 604 F.3d 1363,
1375 (Fed. Cir. 2010). Nonetheless, +DEDü challenged the reliability of the IEA data
before the agency, see +DEDü’s Draft Cmts. at 10–12; and, from Commerce’s response
WR +DEDü·V FRPPHQWV UHJDUGLQJ WKH ,($ UHSRUW it is reasonably discernible that
Commerce found the IEA data reliable after scrutinizing the entire report,
notwithstanGLQJWKHSDUWLFXODULVVXHV+DEDüUDLVHs here. See Remand Results at 19–
22.
Consol. Court No. 18-00144                                                    Page 20

      +DEDü also cites to various occurrences of data in the IEA report relating to

liquid natural gas (“LNG”) and CNG to support its position that the IEA report is not

restricted to natural gas delivered by pipelines. See +DEDü·V%U DW  FLWLQJ ,($

Report at 119, 137, 143, 161, 191, 220, 285). +DEDüPLVVHVWKHSRLQWCommerce’s

issue with the customs-sourced data on the record is that an indeterminate portion

of the pricing data under the HTS subheading 2711.11, covering natural gas in its

gaseous state, likely pertains to CNG. See Remand Results at 27. Although the IEA

report contains information on LNG and CNG, none of the portions of the IEA report

WKDW +DEDü FLWHV appears to present an instance where data covering natural gas

might also pertain to CNG or LNG. Indeed, as Nucor argues, the fact that the IEA

report distinguishes between natural gas, LNG, and CNG, suggests the opposite. See

Nucor’s Br. at 16–19. Given Commerce’s decision not to rely on customs-sourced data

that might relate to CNG, see Remand Results at 27, it is reasonably discernible that

Commerce did not rely on data for CNG or LNG when constructing the benchmark

using the IEA report.

      0RUHRYHU +DEDü VXEPLWV WKDW CNG and natural gas are commercially

indistinguishable and that any value difference between them is insubstantial, see

+DEDü·V %U DW  EXW 1XFRU SRLQWV RXW WKDW +DEDü neither raised the argument

before Commerce nor placed any evidence on the record demonstrating that the prices

are the same. See Nucor’s Br. at 9–10. Nonetheless, it is also reasonably discernible,

from Commerce’s reliance on its previous finding that CNG and natural gas are
Consol. Court No. 18-00144                                                    Page 21

different products that are delivered in different ways, that the agency infers there is

a difference in value between the two products as well. See Remand Results at 26–

27 (citing Rebar, 43 CIT at __, 389 F. Supp. 3d at 1382–84); see also Rebar, 43 CIT at

__, 389 F. Supp. 3d at 1382–84 (noting Commerce’s finding, based on an explanation

from the GOT, that CNG is a “different product that is shipped in canisters rather

than through pipelines.”) (citations omitted)).

      +DEDüdoes not persuade that Commerce’s rejection of the Russian Eurostat

and COMTRADE data or reliance on the IEA data is unreasonable. It is logical for

Commerce to deduce that, because the subheading HTS 2711.11 in the customs-

sourced data covers natural gas in its gaseous state, and because some of the pricing

data relates to trade between states that are not connected by pipelines, the custom-

sourced data includes CNG.      Further, it is not unreasonable to conclude that the

physical differences between the products, as well as the differences in how the

products are delivered, evince commercial differences between natural gas and CNG.

See Remand Results at 27. Regarding the IEA data, it is discernible that Commerce

reasons that prices contained in a published and distributed energy report sourced

by various national agencies are reliable. See Remand Results at 9, 19. Not only do

government sources generally have a stake in producing accurate information, the

process of publishing a comprehensive report normally entails an intensive review

process. Finally, Commerce’s decision to construct a broad benchmark would temper

any distortions arising from the purported idiosyncrasies between the various source-
Consol. Court No. 18-00144                                                    Page 22

methodologies comprising the report by capturing a larger sample of data. See

Remand Results at 19–20.         +DEDü IDLOV WR point to evidence that impugns the

reasonableness of Commerce’s determination. In light of the deference this court

affords Commerce in identifying, selecting, and applying its CVD methodologies,

Commerce’s determination to rely on the IEA data as a tier three benchmark is

reasonable. See Fujitsu General Ltd. v. United States, 88 F.3d 1034, 1039 (Fed. Cir.

1996).

II.      Adjustments to IEA Data

         +DEDü DUJXHV WKDW &RPPHUFH·V DGMXVWPHQWV WR 5XVVLDQ H[SRUW SULFHV IRU

natural gas contained in the IEA report to address the distortive effect of Russia’s

foreign policy considerations are not supported by substantial evidence. See +DEDü·V

Br. at 32–33. 'HIHQGDQWDQG1XFRUFRXQWHUWKDW+DEDü·VSURSRVHGDGMXVWPHQWVDUH

based on the COMTRADE data, which Commerce finds unreliable. See Def.’s Br. at

24–25; Nucor’s Br. at 19–20. Commerce’s adjustments are reasonable.

         Because Commerce determines that Russian export prices are distorted by

Russian foreign policy objectives, Commerce also determines that “each Russian

shipment to the EU leads to a corresponding distortion of the average EU price used

for benchmarking purposes[.]” Remand Results at 10. To correct for the distortion,

Commerce, relying on several pieces of record evidence, explains its methodology:

         First, natural gas imports (from all sources) amount to an estimated 67
         percent of the EU market for natural gas, and 39.5 percent of those
         imports come from Russia. Second, we estimated the average price of
         Russian exports to the EU during the POI. Using this information, to
Consol. Court No. 18-00144                                                       Page 23

        account for the effect, we multiplied the Russian export AUV by Russia’s
        share of the EU natural gas market, i.e. 26.47 percent, considering that:
        (1) an estimated 67 percent of the EU market for natural gas is
        comprised of imports; and (2) Russia supplied 39.5 percent of EU natural
        gas imports during the POI. We then subtracted this amount from the
        EU AUV and divided the difference by the share of non-Russia supplied
        natural gas in the EU market (i.e. 73.54 percent, based on our estimate
        above that 26.47 percent of the EU market is comprised of Russian
        imports).

Id. at 10–11 (citations omitted). Commerce notes that its adjustment is consistent

with recent practice. Id. at 11 (citing Steel Concrete Reinforcing Bar from [Turkey],

84 Fed. Reg. 36,051 (Dep’t Commerce July 26, 2019) (final results and partial

rescission of [CVD] admin. review; 2016) (“Turkey Rebar II”) and accompanying

Issues and Decisions Memo. for [Turkey Rebar II] at 20, C-489-819, (July 18, 2019)

available     at   https://enforcement.trade.gov/frn/summary/turkey/2019-15824-1.pdf

(last visited June 18, 2020); Steel Concrete Reinforcing Bar From [Turkey], 84 Fed.

Reg. 48,583 (Dep’t Commerce Sept. 16, 2019) (prelim. results of [CVD] admin. review;

2017) (“Turkey Rebar III”) and accompanying Prelim. Decision Memo. for [Turkey

Rebar       III]   at    15,    C-489-830,    (Sept.    6,    2019)     available     at

https://enforcement.trade.gov/frn/summary/turkey/2019-19921-1.pdf        (last    visited

June 18, 2020) (final results not yet issued)).

        +DEDüDUJXHVWKDW&RPPHUFHVKRXOGUHO\RQWKH&2075$'(GDWDWRPDNHits

adjustments to Russian export prices. See +DEDü·VDW–33 (citing +DEDü·V5HEXWWDO

NFI & Cmts.).        However, Commerce explains that it declines to rely on the

COMTRADE data to render the adjustment for the same reasons it declines to rely
Consol. Court No. 18-00144                                                  Page 24

on customs-sourced data as a tier two or tier three benchmark. See Remand Results

at 23–27. Namely, Commerce determines that the custom-sourced data on the record

relate to an HTS subheading that contains pricing data for CNG. It is reasonable for

Commerce not to employ COMTRADE data to render its adjustments to the IEA data

because relying on data that is likely comprised of an indeterminate amount of CNG,

which Commerce finds to be a different commercial product, would distort

Commerce’s adjustment to the benchmark for natural gas. See id.

                                 CONCLUSION

      For the foregoing reasons, the Remand Results comply with the court’s order

in +DEDü, are in accordance with law and supported by substantial evidence, and are

therefore sustained. Judgment will enter accordingly.


                                                   /s/ Claire R. Kelly
                                                   Claire R. Kelly, Judge

Dated:      June 25, 2020
            New York, New York
