Slip Op 17-153 

UNITED STATES COURT OF INTERNATIONAL TRADE 

ICDAS CELIK ENERJI TERSANE VE 

ULASIM SANAYI, A.S., 

 Plaintiff, 

v. 

UNITED STATES, 

 Defendant, 

and 

REBAR TRADE ACTION COALITION, et 

al., and HABAS SINAI VE TIBBI GAZLAR

ISTIHSAL ENDUSTRISI, A.S., 

 Defendant-Intervenors. 

 Before: Leo M. Gordon, Judge 

 Consol. Court No. 14-00267 

OPINION 

[Final Determination sustained.] 

Dated: November 17, 2017 

 Matthew M. Nolan, Diana D. Quaia, and Nancy A. Noonan, Arent Fox LLP of 

Washington, DC for Plaintiff Icdas Celik Enerji Tersane ve Ulasim Sanayi, A.S. 

 Richard P. Schroeder, Trial Attorney, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice of Washington, DC argued for Defendant, United States. 

With him on the briefs were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the briefs 

was Scott McBride, Assistant Chief Counsel, U.S. Department of Commerce, Office of the 

Chief Counsel for Trade Enforcement and Compliance of Washington, DC.

 Maureen E. Thorson, Wiley Rein LLP of Washington, DC argued for DefendantIntervenors Rebar Trade Action Coalition, Nucor Corporation, Gerdau Ameristeel 

U.S. Inc., Commercial Metals Company, and Byer Steel Corporation. With them on the 

brief were Alan H. Price and John R. Shane. 
Consol. Court No. 14-00267 Page 2 

Gordon, Judge: This action involves the U.S. Department of Commerce 

(“Commerce”) final determination in the countervailing duty investigation of steel concrete 

reinforcing bar from the Republic of Turkey. See Steel Reinforcing Bar From the Republic 

of Turkey, 79 Fed. Reg. 54,963 (Dep’t of Commerce Sept. 15, 2014) (final affirm. & crit. 

circum. determ.) (“Final Determination”); see also Issues & Decision Memorandum for the 

Final Affirmative Countervailing Duty Determination and Final Affirmative Critical 

Circumstances Determination in the Countervailing Duty Investigation of Steel Concrete 

Reinforcing Bar from the Republic of Turkey, C-489-819 (Dep’t of Commerce 

Sept. 8, 2014), available at http://enforcement.trade.gov/frn/summary/turkey/2014-

21989-1.pdf (last visited this date) (“Decision Memorandum”); see also Steel Concrete 

Reinforcing Bar from the Republic of Turkey, 79 Fed. Reg. 65,926 (Dep’t of Commerce 

Nov. 6, 2014) (final countervailing duty order) (“Order”). Before the court are the motions 

for judgment on the agency record of Plaintiff Icdas Celik Enerji Tersane ve Ulasim, A.S. 

(“Icdas”) and Defendant-Intervenor Rebar Trade Action Coalition ("RTAC"), and its 

individual members, Nucor Corporation, Gerdau Ameristeel U.S. Inc., Commercial Metals 

Company, and Byer Steel Corporation. The court has jurisdiction pursuant to Section 

516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) 

(2012)1, and 28 U.S.C. § 1581(c) (2012). 

This opinion addresses RTAC’s challenge to the Final Determination. See RTAC’s 

R. 56.2 Mot. for J. on the Agency R., ECF No. 50 (“RTAC’s Br.”); see also Pl.’s Resp. in 

 

1 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions 

of Title 19 of the U.S. Code, 2012 edition. 
Consol. Court No. 14-00267 Page 3 

Opp’n to Def.-Intervenor RTAC’s R. 56.2 Mot. for J. on the Agency R., ECF No. 68 (“Icdas’ 

Resp.”); Def.’s Resp. in Opp’n to Pl.’s R. 56.2 Mots. for J. on the Agency R., ECF No. 69 

(“Def.’s Resp.”); RTAC’s Reply Br., ECF No. 80 (“RTAC’s Reply”). 

Specifically, RTAC challenges (1) Commerce’s selection of benchmark prices 

used to calculate countervailable benefits that respondents obtained from natural gas 

purchases; (2) Commerce’s selection of benchmark prices used to calculate 

countervailable benefits that respondents obtained from lignite coal purchases; 

(3) Commerce's refusal to exceed the largest deduction possible in applying adverse 

facts available to Icdas’ use of an export revenue tax deduction program; and 

(4) Commerce’s refusal to initiate an investigation on RTAC’s new subsidy allegation 

relating to respondents’ sales of electricity from the Turkish government.2 For the reasons 

set forth below, the court sustains the Final Determination for each of these issues 

challenged by RTAC. 

I. Standard of Review

The court sustains Commerce’s “determinations, findings, or conclusions” unless 

they are “unsupported by substantial evidence on the record, or otherwise not in 

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing 

agency determinations, findings, or conclusions for substantial evidence, the court 

assesses whether the agency action is reasonable given the record as a whole. Nippon 

Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006); see also Universal 

 

2 The court addresses RTAC’s separate argument about Commerce’s refusal to consider 

certain documents in support of RTAC’s subsidy allegation in a separate decision. 
Consol. Court No. 14-00267 Page 4 

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must 

take into account whatever in the record fairly detracts from its weight.”). Substantial 

evidence has been described as “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States, 

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 

197, 229 (1938)). Substantial evidence has also been described as “something less than 

the weight of the evidence, and the possibility of drawing two inconsistent conclusions 

from the evidence does not prevent an administrative agency’s finding from being 

supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 

(1966). Fundamentally, though, “substantial evidence” is best understood as a word 

formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and 

Practice § 9.24[1] (3d ed. 2017). Therefore, when addressing a substantial evidence issue 

raised by a party, the court analyzes whether the challenged agency action “was 

reasonable given the circumstances presented by the whole record.” 8A West’s Fed. 

Forms, National Courts § 3.6 (5th ed. 2017). 

II. Discussion 

A. Natural Gas Benchmark 

RTAC challenges Commerce’s selection of benchmark prices for natural gas 

purchases used to calculate the program benefit received by Turkish rebar producers who 

received countervailable subsidies by purchasing natural gas from a Turkish state-owned 

entity for less than adequate remuneration (“LTAR”). Once Commerce determined that 

the market for natural gas in Turkey was distorted, 19 C.F.R § 351.511(a)(2)(ii) directs 
Consol. Court No. 14-00267 Page 5 

Commerce to select a world market benchmark to measure the benefit received from the 

provision of natural gas for LTAR pursuant to section 19 U.S.C. § 1677(5)(E)(iv). 

Specifically, 19 C.F.R § 351.511(a)(2)(ii) states 

If there is no useable market-determined price with which to make the 

comparison under paragraph (a)(2)(i) of this section, the Secretary will seek 

to measure the adequacy of remuneration by comparing 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. Where 

there is more than one commercially available world market price, the 

Secretary will average such prices to the extent practicable, making due 

allowance for factors affecting comparability. 

19 C.F.R § 351.511(a)(2)(ii). To enable Commerce to calculate the benefit received from 

purchasing natural gas from a state-owned entity, RTAC submitted "a set of ‘border’ 

monthly prices for natural gas sales between various European countries, sourced from 

Global Trade Information Services (GTIS).” Decision Memorandum at 11. RTAC also 

placed on the record "monthly prices for natural gas sales from Russia to Germany, 

sourced from the International Monetary Fund (IMF),” and in addition “derived quarterly 

natural gas prices charged by Gasprom, a large Russian gas company, using data from 

the company's financial statements." Id. The IMF dataset contained no value and quantity 

information and unlike the GTIS data could not be weight-averaged. Id. 

In the preliminary determination Commerce first weight-averaged the GTIS data 

for a set of monthly benchmark prices, and then proceeded to simple average those prices 

with the IMF data. Id. Commerce rethought this approach in the final determination. 

Commerce determined that inclusion of the IMF data and the use of simple averaging 

skewed the pricing results by failing to account for the differences between minor gas 
Consol. Court No. 14-00267 Page 6 

supplier countries and dominant gas supplier countries. Id. at 12. Accordingly, Commerce 

weight-averaged the GTIS data and excluded the “unweightable” IMF data. Id. Commerce 

further explained that the limited IMF pricing data closely tracked the larger corresponding 

GTIS data. Id. Commerce also distinguished past administrative proceedings cited by 

RTAC in which Commerce used simple averaging of pricing data, noting that in these 

prior cases Commerce lacked sufficient data reported in a uniform manner with adequate 

information to engage in weight-averaging. Id.

Despite this facially reasonable application of the benchmark regulation, RTAC 

nevertheless contends that Commerce erred by not utilizing simple averaging instead of 

weighted-averaging, and further erred by not including the IMF data in its analysis. 

RTAC’s Br. 31-36. This is an admittedly steep hill for RTAC to climb. After all, Commerce 

averaged "more than one commercially available world market price" without introducing 

the distortions that naturally result from using a simple average. 19 C.F.R 

§ 351.511(a)(2)(ii); see also RZBC Group Shareholding Co. v. United States, 39 CIT ___,

100 F. Supp. 3d 1288, 1308-11 (2015) (holding that calculating a benchmark derived from 

a weighted-average methodology, if possible, is preferable to one using a simple average 

methodology); id. at 1309 (noting that “Commerce now prefers to use weighted averages 

when the parties report price and quantity in a uniform manner.” (citing Certain Oil Country 

Tubular Goods from the Republic of Turkey, 79 Fed. Reg. 41964 (Dep't of Commerce 

July 18, 2014) (final affirm. determination), and accompanying issues and decision 

memorandum at cmt. 4 ("Using weighted-average prices where possible reduces the 

potential distortionary effect of any specific transaction (e.g., extremely small 
Consol. Court No. 14-00267 Page 7 

transactions) in the data."))). RTAC fails to demonstrate that Commerce acted 

unreasonably in determining that weighted averaging, rather than simple averaging, was 

the superior method for minimizing price distortions in establishing a natural gas 

benchmark on the available data. 

RTAC further argues that Commerce did not “grapple with the question of 

robustness." RTAC’s Br. 36. This is incorrect. Commerce expressly found that its ability 

to "derive a robust natural gas benchmark" did not hinge on the IMF data because the 

GTIS data held "hundreds of data points, [and was] ‘weightable,’ whereas the single row 

of IMF pricing data for sales from Russia to Germany [was] not." Decision Memorandum 

at 12. And because the GTIS dataset contained Russian gas prices that closely tracked 

those in the IMF dataset, Commerce’s concerns about the distorting effect of using a 

simple average outweighed RTAC’s concerns about robustness. Id.

RTAC also speculates that because of possible "volume discounts" and alleged 

non-market considerations, there are problems in claiming that large suppliers reflect the 

market rate, while using a simple average represents a "midpoint of various values based 

on different volumes and distances." RTAC’s Br. 33-34. RTAC, however, never made this 

argument to Commerce. In its administrative case briefing RTAC objected to Commerce's 

preliminary determination to use what it referred to as "an unprecedented 

'weighted/simple average' hybrid methodology to calculate the benchmark[,]" see NonConfidential App. to RTAC’s Br. in Support of its R. 56.2 Mot. for J. on the Agency R. 266 

(RTAC’s Case Brief July 29, 2014), ECF. No. 55 (“RTAC’s Br. App.”). RTAC did not argue, 

as it does now, the existence of "volume discounts" in the underlying investigation, nor 
Consol. Court No. 14-00267 Page 8 

claim that such discounts, should they exist, reflected non-market prices or were based 

on non-market principles. RTAC has therefore failed to exhaust its administrative 

remedies with respect to that particular aspect of its argument. 

When reviewing Commerce's antidumping determinations, the U.S. Court of 

International Trade is mandated by statute to require exhaustion of administrative 

remedies “where appropriate.” 28 U.S.C. § 2637(d); Boomerang Tube LLC v. United 

States, 856 F.3d 908 (Fed. Cir. 2017). RTAC had an opportunity to present these 

arguments to Commerce in the first instance and chose not to do so. The court therefore 

will not consider them. 

Commerce's calculation of a benchmark for natural gas derived from a weightedaverage of natural gas prices in the GTIS dataset is reasonable and therefore sustained. 

B. Lignite Benchmark 

In its preliminary determination, Commerce determined that Icdas benefited from 

subsidies from the Government of Turkey in the form of reduced coal prices in its 

purchases of coal from Turkish Coal Enterprises (“TKI”), a state-owned entity. Decision 

Memorandum at 13-16. Applying 19 C.F.R § 351.511, Commerce preliminarily 

determined that the market prices of Icdas’ imports of steam coal could properly be used 

as a tier one benchmark against which to evaluate the benefit Icdas received in 

purchasing coal from TKI. However, upon subsequent challenge by RTAC and further 

factual investigation, Commerce determined that Icdas only purchased lignite coal from 

TKI and that lignite coal was distinguishable from other hard steam coal that Icdas 

imported. Accordingly, in its final determination, Commerce excluded pricing data relating 
Consol. Court No. 14-00267 Page 9 

to non-lignite coal, and after determining that the Turkish lignite market was too influenced 

by the Government of Turkey to provide reliable market-set benchmark prices, Commerce 

decided to use only “world market prices for lignite itself; specifically . . . GTIS pricing data 

on the record submitted by Petitioner.” Id. at 15-16. Commerce explained that because 

lignite coal was the only coal provided by the Turkish Government, the subsidy 

investigation scope was properly narrowed to data just involving lignite coal. Further, as 

Commerce found that the domestic lignite market was distorted by government 

interference, it was necessary to use “tier two” pricing data from available world prices for 

lignite. Id. at 16. 

RTAC, in its administrative case briefing, argued that hard steam coal and lignite 

were not interchangeable as assumed initially by Commerce, and urged Commerce to 

calculate a lignite benchmark from a simple averaging of world market pricing data. 

RTAC’s Br. 36-37. Although Commerce ultimately adopted the position that lignite and 

hard steam coal were not interchangeable, and that the subsidy investigation should be 

limited to lignite coal, Commerce rejected RTAC’s suggestion of benchmark calculations 

using a simple average of world prices in favor of using a weighted average of lignite 

world pricing data. Decision Memorandum at 16-17. There were two sets of lignite world 

pricing data on the record: GTIS and IMF. As in its natural gas subsidy analysis, 

Commerce noted that the GTIS data provided monthly quantity and value pricing data for 

several countries lignite transactions and that such data was “weightable;” whereas the 

IMF data provided only contained monthly unit prices for sales of lignite from Australia 

and was not “weightable.” Id. at 16. Using the same reasoning as it had applied in 
Consol. Court No. 14-00267 Page 10 

evaluating the natural gas benchmark, Commerce calculated a lignite benchmark from a 

weighted average of the pricing data, using only the “weightable” GTIS data and excluding 

the IMF data. Id. 

RTAC challenges Commerce’s decision to use a weighted average to calculate 

the lignite benchmark and Commerce’s corresponding decision to exclude the IMF data. 

RTAC’s argument is essentially identical to its challenge that Commerce improperly 

calculated the natural gas benchmark; both arguments urge that Commerce should have 

used a simple average to calculate the appropriate benchmark and that Commerce 

should not have excluded the “unweightable” IMF data absent a finding of defects in that 

data. See RTAC’s Br. 37 (explaining that “DOC’s benchmarking calculations with respect 

to lignite purchased by respondents from the Turkish government are flawed for the same 

reasons as the benchmarking calculations for natural gas.”). 

Here again, as with the natural gas benchmarks, Commerce acted reasonably in 

deciding that weight-averaging is preferable to simple averaging in calculating 

benchmarks upon available world market pricing data. See Section II.A, supra 

(Commerce’s determination that the distortion-minimizing benefits of weight-averaging 

outweigh the benefits provided by simple averaging was reasonable). The court therefore 

sustains Commerce’s weight-averaging of the GTIS data to determine the lignite 

benchmark. 

C. Export Revenue Tax 

Commerce determined, contrary to Icdas’ representation, that Icdas had in fact 

used the Turkish “Deductions for Taxable Income for Export Revenue” program to reduce 
Consol. Court No. 14-00267 Page 11 

its taxable income in 2011. Decision Memorandum at 19. As a result Commerce used an 

adverse inference in evaluating the benefit Icdas received under the program. Id. 

Commerce explained that the program is well known to Commerce, that Commerce has 

examined, verified, and countervailed it in numerous Turkey countervailing duty cases. 

Commerce also explained that the program has two built-in limitations: (1) the amount of 

the deduction for undocumented expenses cannot exceed 0.5 percent of export revenue 

and (2) there is a cap to the amount of benefit that a company can receive under the 

program. Commerce therefore maintains a practice of applying, as adverse facts 

available (“AFA”), the largest deduction possible under the program. Id. (citing Circular 

Welded Carbon Steel Pipes and Tubes from Turkey, 78 Fed. Reg. 64,916 (Dep't of 

Commerce Oct. 30, 2013) (countervailing duty admin. rev.)). Consistent with this practice, 

Commerce determined the largest deduction possible for Icdas under the program, and 

then derived a net countervailable subsidy rate of 0.10 percent ad valorem for Icdas. Id. 

RTAC challenges Commerce’s selection of this rate, arguing that Commerce’s 

decision was inconsistent with a more general prior practice of eschewing de minimis 

rates, and that the rate applied is apparently insufficient to induce interested parties to 

participate in the proceedings, thus frustrating the purpose of assigning an AFA rate. 

RTAC’s Br. 38-42. RTAC argues that Commerce should have instead contrived an 

adverse rate greater than the maximum benefit that Icdas could possibly receive under 

the Turkish program. 

Commerce reasonably rejected RTAC’s arguments. Commerce explained that it 

acted in accordance with its prior practice for this specific program, applying the largest 
Consol. Court No. 14-00267 Page 12 

deduction possible, which was known and calculable. Decision Memorandum at 19. 

RTAC identifies no express statutory command requiring Commerce to inflate a remedial 

countervailing duty rate beyond the known, calculable, maximum benefit under this 

particular Turkish program. It also strikes the court as an overreach to seek additional 

duties for a benefit that has been fully countervailed, (wholly satisfying the statute’s 

primary purpose of leveling the playing field, see generally 158 Cong. Rec. H1166, 

H1166–73 (Mar. 6, 2012), and lessening the import of whatever subordinate purpose 

inheres in the adverse inference provision). The court therefore sustains Commerce’s 

decision. 

D. Rejected New Subsidy Allegation 

RTAC contends that Commerce should have initiated an investigation for alleged 

electricity subsidies.3 In support of its allegation, RTAC argued that the Turkish 

government allegedly paid power producers more than adequate remuneration for the 

sale of electricity. See RTAC’s Br. App. 241 (Memorandum from Kristen Johnson, Int'l 

Trade Compliance Analyst, to Melissa G. Skinner, Director, re: Countervailing Duty (CVD) 

Investigation on Steel Concrete Reinforcing Bar from Turkey: Decision Memorandum on 

Additional Subsidy Allegation Nov. 25, 2013). Commerce reviewed RTAC’s argument and 

information and determined that although RTAC’s submissions indicated that 

Independent Power Producers (“IPPs”) benefitted from the Turkish government 

guarantees and electricity purchase prices above market rates, that same evidence 

 

3 The court is addressing separately RTAC’s argument about Commerce’s rejection of 

certain documents in support of RTAC’s subsidy allegation. 
Consol. Court No. 14-00267 Page 13 

distinguished IPPs from autoproducers (like respondents) and did not directly indicate 

that autoproducers sold surplus electricity to the government at higher than market rates. 

RTAC argues that Commerce unreasonably concluded from the administrative record 

that IPPs were distinct and separate from the autoproducers subject to RTAC’s subsidy 

allegation. RTAC’s Br. 28. 

RTAC’s proffered information that IPPs were offered “above-market prices” and 

guarantees from the Government of Turkey, and wanted Commerce to infer that those 

same benefits accrued to Turkish autoproducers. Commerce though did not draw that 

inference, instead noting that RTAC’s own submissions “consistently distinguish[ed] IPPs 

from autoproducers.” RTAC’s Br. App. 241-42. Commerce expressly noted that 

“[p]etitioner provided no information indicating that rebar autoproducers also operate as 

IPPs.” Id. at 242. 

All RTAC offers is its own inference about the absence of direct evidence. That 

alone though is insufficient to undermine the reasonableness of Commerce's equally 

reasonable inference from the available record evidence. Daewoo Elecs. Co. v. Int'l Union 

of Elec., Elec., Technical, Salaried & Mach. Workers, AFL–CIO, 6 F.3d 1511, 1520 

(Fed. Cir. 1993) (“The question is whether the record adequately supports the decision of 

[Commerce], not whether some other inference could reasonably have been drawn.”). 

The court therefore sustains this aspect of the Final Determination. 

 
Consol. Court No. 14-00267 Page 14 

III. Conclusion

For the foregoing reasons, the court sustains Commerce’s Final Determination. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: November 17, 2017 

 New York, New York