ICDAS Celik Enerji Tersane ve Ulasim Sanayi, A.S. v. United States
2017 CIT 153
| Ct. Intl. Trade | 2017Background
- This is a challenge by the Rebar Trade Action Coalition (RTAC) to Commerce’s Final Determination in the countervailing duty (CVD) investigation on steel reinforcing bar from Turkey (Final Determination and Order). RTAC is a defendant-intervenor; Icdas is the plaintiff company whose rate was determined.
- Commerce found Turkish markets for natural gas and domestic lignite distorted and therefore required world-market benchmarks under 19 C.F.R. § 351.511 when measuring LTAR subsidies.
- Record world-price data sets included GTIS (value and quantity, weightable) and IMF (unit prices only, not weightable). Commerce used weighted averages of GTIS and excluded IMF for natural gas and lignite benchmarks.
- Commerce applied an adverse inference (AFA) to Icdas for use of Turkey’s export revenue tax deduction program, applying the program’s largest calculable deduction and producing a de minimis net subsidy (0.10% ad valorem).
- RTAC also urged Commerce to investigate a new subsidy allegation concerning electricity sales; Commerce declined, finding record evidence distinguished Independent Power Producers (IPPs) from rebar autoproducers and provided no direct support that autoproducers received above-market electricity-sale benefits.
Issues
| Issue | Plaintiff's Argument (RTAC) | Defendant's Argument (Commerce/United States) | Held |
|---|---|---|---|
| Natural gas benchmark methodology | Commerce should have used simple averaging and included IMF data; weighted-average + excluding IMF skews benchmark | GTIS provided weightable quantity/value data; weighted average minimizes distortion; IMF unweightable and redundant | Court sustained Commerce’s use of GTIS weighted average and exclusion of IMF data |
| Lignite benchmark methodology | Same critique as natural gas: use simple average and include IMF data | GTIS lignite data weightable; IMF unweightable; weighted average preferred to avoid distortions | Court sustained Commerce’s weighted-average benchmark using GTIS only |
| Export revenue tax (AFA magnitude) | Commerce’s chosen AFA (largest calculable deduction yielding 0.10% ad valorem) is inconsistent with avoiding de minimis and should be inflated to induce participation | Commerce followed its program-specific practice of applying the largest calculable deduction; no authority to create a larger adverse rate beyond measurable maximum benefit | Court sustained Commerce’s application of the program’s largest calculable deduction and resulting rate |
| New subsidy allegation re electricity | Record supports investigating electricity subsidies; IPP benefits imply autoproducer benefits | Record distinguishes IPPs from rebar autoproducers; no evidence showing autoproducers sold electricity to government at above-market prices | Court sustained Commerce’s refusal to initiate investigation; record reasonably supports Commerce’s inference |
Key Cases Cited
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir.) (describes substantial-evidence reasonableness review)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S.) (substantial-evidence standard must account for record that detracts from weight)
- DuPont Teijin Films USA v. United States, 407 F.3d 1211 (Fed. Cir.) (definition of substantial evidence)
- Consol. Edison Co. v. NLRB, 305 U.S. 197 (U.S.) (substantial evidence described)
- Consolo v. Federal Maritime Comm'n, 383 U.S. 607 (U.S.) (possibility of inconsistent inferences does not defeat substantial evidence)
- Boomerang Tube LLC v. United States, 856 F.3d 908 (Fed. Cir.) (administrative exhaustion principles cited)
- Daewoo Elecs. Co. v. Int'l Union, 6 F.3d 1511 (Fed. Cir.) (agency inferences must be supported by record)