Turkish Rebar Exporter Says Only Evidence of Benefit Was Rejected From Record

Exporter Kaptan Demir Celik Endustrisi ve Ticaret said it is challenging four aspects of the final results of the Commerce Department’s 2021 countervailing duty review of Turkish rebar, “two of which were decided, on virtually identical facts, in this Court’s decision regarding the 2020 review of the same order” (see 2410210019).

Again, the exporter challenged finding that its exemption from Turkey’s 0.2% Bank and Insurance Transactions Tax was de jure specific. It also again pushed back against Commerce’s chosen benchmark for valuing unimproved industrial land near the Black Sea. The Court of International Trade held in October that Commerce had failed to prove the bank tax exemption was specific to Kaptan, and it also found that the agency didn’t have a “sound legal basis” for rejecting a report, prepared by Cushman & Wakefield and offered by Kaptan, to set benchmark unused land prices.

The exporter raised two new challenges in its Nov. 17 motion. First, it alleged that Commerce had rejected one of its submissions as untimely, then countervailed a Turkish program, Law 27256, the only evidence of existence of which had appeared in the rejected submission.

“Commerce’s regulations prohibit the agency from using information in a response rejected as untimely for any purpose other than to support the finding of untimeliness,” it said.

The department placed on the record as evidence of the law’s existence a letter it itself had written, Kaptan said; otherwise, the law left no other trail. That letter was the one rejecting Kaptan’s submission as untimely.

In response to Kaptan’s administrative challenge to the inclusion of the law in the review, the department said that “while Commerce rejected the October 12 filing that initially listed this program, the program was listed in both Commerce’s Rejection Letter rejecting the submission and was identified in the company’s Verification Report.”

This wasn’t evidence, it argued. The ordinary meaning of the word evidence is “something that furnishes proof; specifically, something legally submitted to a tribunal to ascertain the truth of a matter,” it said, based on Webster’s New International Dictionary and Britannica. So evidence is something “submitted to a tribunal, as material generated by a tribunal,” it explained.

“Any ‘facts’ that Commerce may wish to include in its rejection letter must be supported by evidence on the record,” it said.

Finally, it said that Commerce wrongly applied adverse facts available to a social security support program under Turkey’s Law 4447. It said Commerce claimed Kaptan hadn’t reported its benefits under the program -- but Kaptan had, and Commerce “actually included them in its benefits calculation.”

It said that it had reported “each of the social security benefits and provided a table of its receipt of benefits” in its initial questionnaire response. These were “explicitly captured” in Commerce’s calculation of Kaptan’s overall benefits, though they were found to “so small as to be ‘unmeasurable’ for the purposes of benefit analysis,” Kaptan said.

And it said that Commerce had also ignored the Turkish government’s own responses to a second supplemental questionnaire, which provided the department the statute’s text, its usage by Kaptan and overall use statistics by sector. Commerce argued that Turkey had failed to note the specific category Kaptan fell into, but the Turkish government had previously offered descriptions of all the categories and Kaptan was “clearly in NACE category 24 (iron and steel).

“If Commerce had any questions about the NACE categorizations, it could have issued a supplemental questionnaire after the GOT’s IQR or at any time thereafter,” it said.

But even if the department was right to apply AFA for Turkey's responses, it shouldn’t have done the same for Kaptan’s reporting because there was no missing information at all, the exporter said.