Citations
- 61 F. Supp. 3d 1306
Full opinion text
OPINION AND ORDER
MUSGRAVE, Senior Judge:
Before the court is a challenge to Certain Oil Country Tubular Goods From the Republic of Turkey, 79 Fed.Reg. 41964 (July 18, 2014), PDoc 369, and aceompany-ing issues and decision memorandum (July 10, 2014) (“IDM ”), PDoc 363, (collectively “Final Determination”), a final affirmative countervailing duty (“CVD”) investigation determination conducted by the International Trade Administration, U.S. Department of Commerce (“Commerce”). The period of investigation (“POI”) is January 1, 2012, through December 31, 2012.
The plaintiffs challenge these determinations: (1) that Erdemir and its subsidiary Isdemir, suppliers to Borusan of the hot rolled steel (“HRS”) input, are statutory “authorities”; (2) that in measuring the “benefit” Borusan received under the statute, the level of government involvement in the Turkish HRS market is so significant that the price of HRS sold in Turkey is significantly distorted, thereby warranting rejection of Borusan’s “tier-one” purchases of HRS from domestic and import suppliers; (3) the use of a “tier-two” monthly weighted-average world market prices for HRS derived from the Global Trade Atlas (“GTA”) maintained by Global Trade Information Services as benchmarks to measure the benefit; (4) that HRS was provided for less than adequate remuneration .(“LTAR”) to a “limited” number of industries as a matter of fact and was therefore a “specific” subsidy; (5) the application of facts available with an adverse inference for failing to provide information about HRS purchases with respect to two of Borusan’s pipe manufacturing facilities in Turkey in two different questionnaires. For the following reasons, the matter will be remanded for further proceedings.
Background
I. The Petition
On July 2, 2013, certain domestic producers (“petitioners”) of oil country tubular goods (“OCTGs”) filed a petition with Commerce alleging that certain foreign governments including the Republic of Turkey were providing countervailable subsidies to producers and exporters of OCTGs in their respective countries.
The petition explained that HRS is a significant input into the production of OCTGs, and claimed that the Turkish government distorts HRS pricing through several means, including that government’s National Restructuring Plan, which by its terms allows the Turkish government to provide subsidies to its HRS industry to increase the competitiveness of that sector and to allow Turkish steel producers using government subsidies to increase production quality, developing product range to high value added products, reducing production costs and improving viability and competitiveness of the sector. PDoc 2 at Vol. X, pp. 4-5. The petition alleged that the result of the Turkish government’s involvement in the HRS market was a reduction across the board within Turkey of HRS prices. Id. at 6-7.
The petition also alleged that Erdemir and its subsidiary Isdemir are two of Turkey’s largest HRS producers and supply HRS to Borusan of HRS and are owned by Ordu Yardimlasma Kurum (“OYAK”), Turkey’s military pension fund, and collectively account for at least 54 percent of the Turkish HRS market. Id. at 9. The petition alleged that because the Government of Turkey effectively owns Erdemir and Isdemir, and because that government has been completely restructuring the HRS industry in Turkey, it was likely that Turkish OCTG producers have purchased HRS for LTAR for these companies. Id. at 3, 8-9.
Commerce subsequently initiated a countervailing duty investigation of OCTGs from Turkey. Certain Oil Country Tubular Goods from Indian and Turkey, 78 Fed.Reg. 45502 (July 29, 2013) (initiation). Commerce selected Borusan as one of the mandatory respondents, PDoc 61 at 3, and issued questionnaires to both the Turkish government and Borusan requesting specific information on the provision of HRS in Turkey.
II. Questionnaire Responses
On October 31, 2013, Borusan provided its initial questionnaire response. See PDocs 72-75, CDocs 27-38. Borusan reported that it purchased a significant amount of HRS from Erdemir and Isdemir during the period of investigation, and that, for purposes for use as a benchmark, it was submitting its domestic and imported HRS purchases from private suppliers in each month of the POI. PDoc 75 at 15.
Commerce requested that Borusan report all of its purchases of HRS during the POI and explained that Borusan should report this purchase information regardless of whether it used the input to produce the subject merchandise during the POI. Id. at 10-11. In response, Borusan explained that it had production facilities at three locations: Gemlik, Halkali, and Izmit. Id. Borusan stated that only the Gemlik mill produced the subject OCTGs, so it reported HRS purchases for only that mill, as these are the only purchases that could have benefitted from subsidies attributable to the production or sale of the OCTG subject merchandise. Id. at 11. Borusan claimed that collecting HRS purchase data for the other mills could impose great burdens on it for no purpose. Id. at 11, n. 2.
The Turkish government also submitted its response to Commerce’s questionnaire, explaining that there are five producers of HRS in Turkey, but that it does not maintain any ownership or management interest in any of those companies, including Isdemir and Erdemir, either directly or through other governmental entities. PDoc 179 at 5. It claimed that Erdemir and Isdemir are both private actors who operate their businesses based on normal commercial considerations and in the best interests of their shareholders. Id. at 9. Further, the Turkish government claimed it does not hold any shares in Erdemir and Isdemir and that there is no government proclamation, regulation, decree, opinion, law or policy defining any government objectives with regard to Erdemir and Isde-mir. Id. According to the Turkish government, the fact that the military pension fund OYAK is a majority shareholder in Erdemir and Isdemir does not render them government authorities. Id.
In response to Commerce’s request on the industries in Turkey that purchase HRS directly, the- Turkish government stated that it did not have such data, but that worldwide, HRS users are construction (50%), automobile (32%), machine (7%), electricity (2%) white appliances (2%), agriculture (2%), petroleum/gas (3%) and packaging, but that no Turkish industry-specific data was available. Id. at 7.
On November 21, 2013, Commerce issued a supplemental questionnaire response to Borusan, which responded on December 5, 2013. PDoc 218 at 8-12. Commerce noted that Borusan had not provided Borusan’s purchases of HRS for mills at Halkali and Izmit, pointing to the language from the original questionnaire instructing Borusan to report such purchases even if a mill did not make OCTGs, and specifically requested that Borusan report all of its HRS purchases, including its purchases for the Halkali and Izmit mills. Id. at 8. The request encompassed the dates, quantities, and values of all of Boru-san’s HRS purchases, and stated that if Borusan was unable to provide this information, Borusan should provide an explanation “in detail and the efforts you made to provide it to Commerce.” Id. Borusan did not provide the HRS purchases for the Halkali and Izmit mills, however. It alleged that the time, burden, and transportation costs in getting such information would be substantial. Id. at 8-9. Borusan stated that it wanted to fully cooperate with Commerce but that Commerce’s request resulted in an unreasonable burden, and that if Commerce insists on full reporting of all hot-coil purchases from every facility it would provide that information but would require several weeks to do so. Id. at 9-11.
III. Preliminary Results
On December 23, 2013, Commerce issued its preliminary results, determining that the investigated respondents had de minimis calculated margins. PDoc 250. Commerce explained, however, that with respect to its investigation of HRS for LTAR, based on information in the Turkish government’s questionnaire response, it intended to request additional information about OYAK and address this information and this alleged subsidy program in a post-preliminary analysis. PDoc 224 at 20. On January 31, 2014, Commerce issued the Turkish government a second supplemental questionnaire, asking a series of questions with respect to OYAK’s history and structure, to which the Turkish government responded on February 13, 2014. See PDoc 308 at 3-9. Among its other responses, the Turkish government explained that OYAK owns 49.29 percent of Erdemir, and also that Erdemir owns 3.08 percent of its own shares. Id. at 3.
IV. Post-Preliminary Analysis Memorandum, Verification, Briefs, and Hearing
On April 18, 2014, Commerce issued its post-preliminary analysis memorandum. PDoc 327. Commerce preliminarily determined that the Turkish government has extensive involvement in OYAK and that the government’s significant involvement in OYAK extends to Erdemir and Isdemir. Id at 6. Commerce preliminarily determined that the record evidence indicated that those “public bodies” account for the majority of the total domestic supply of HRS in Turkey, and therefore that the level of government involvement in the market was such that prices would be significantly distorted to use as a benchmark for measuring the benefit. Id. at 9. Commerce thus used a “tier two” world market price as a benchmark to measure the benefit, pursuant to 19 U.S.C. § 1677(5)(E) and 19 C.F.R. § 351.511(a)(2)(ii). Finally, because Borusan twice elected not to provide requested HRS purchase information, both times claiming it would be burdensome to do so, Commerce preliminary determined that it was necessary to apply facts available with an adverse inference pursuant to 19 U.S.C. § 1677m(a) and (b). PDoc 327 at 13.
From April 25, 2014, to May 2, 2014, Commerce verified responses from both the Turkish government and Borusan. IDM at 1. Before verification, the Turkish government requested that Commerce officials verify the alleged “program” of HRS for LTAR in addition to the program they were already set to verify, but Commerce officials refused, responding that the purpose of verification was to verify facts on the record and not to accept new facts or to hear legal arguments. PDoc 343. On May 23, 2014, the Turkish government, Borusan, and the petitioners filed their administrative case briefs. IDM at 2. Two weeks later, on June 13, 2014, Commerce conducted a hearing, in which all of the parties participated. PDoc 359 at 1-3.
V. Final Determination
Commerce published the Final Determination on July 18, 2014. In it, Commerce continued to determine that Erdemir and Isdemir were government “authorities” that provided a eountervailable financial contribution to Borusan. IDM at 20-26, 31-35. On the issue of verification, Commerce explained that it accepted the accuracy of the information that the Turkish government submitted on its face; therefore, no verification of the alleged HRS for LTAR program was required. Id. at 54-55. Commerce further determined that it would not use Borusan’s domestic and import purchases of HRS as benchmarks because “the level of government involvement in the market was such that prices within Turkey would be significantly distorted.” Id. at 24, 35-39. In selecting a world market price, purportedly in accordance with 19 C.F.R. § 351.511(a)(2)(ii), Commerce rejected prices from data sources on the record that included prices paid in Turkey specifically, and instead used weighted-average monthly prices from the Global Trade Information Systems data source. Id. at 25-26, 39-46. Commerce continued to find that the number of users of HRS in Turkey are limited and the subsidy was therefore specific, and that the application of facts available with adverse inferences to Borusan as to its unreported HRS purchases was appropriate. Id. at 9-13, 48-52. Commerce calculated a countervailing duty margin for Bo-rusan of 15.58 percent. Id. at 26.
Jurisdiction and Standard of Review
The action is brought pursuant to Section 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended (“Act”), 19 U.S.C. § 1516a(a)(2)(B)(i). -Borusan has standing under 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(c).
The court reviews whether Commerce’s countervailing duty determinations are unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(l)(B)(i). See Royal Thai Government v. United States, 436 F.3d 1330, 1335 (Fed.Cir.2006) (“Royal Thai III”). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951) (“Universal Camera”).
Discussion
I. Whether Erdemir and Isdemir Are “Authorities” Under 19 U.S.C. § 1677(5)(B)
A. Further Background
Under the CVD law, a “subsidy” occurs when an “authority,” inter alia, provides a financial contribution “to a person and a benefit is thereby conferred.” 19 U.S.C. § 1677(5)(B). A “benefit” occurs when something is transferred for less than “adequate” remuneration. Commerce once described “subsidy” to the Court of Appeals for the Federal Circuit as “a device used by governments to distort the signals that the market gives to firms.” Brief for Appellant at 25, Georgetown Steel Corp. v. United States, 801 F.2d 1308 (Fed.Cir.1986).
Erdemir and Isdemir supplied Borusan with significant amounts of HRS during the period of investigation. IDM at 20. The provision of HRS for LTAR would be a benefit to Borusan. Therefore, in order to determine whether Borusan as a “person” received a CVD benefit from Erde-mir and Isdemir in the form of HRS for LTAR, Commerce had to determine whether those companies are “authorities” within the meaning of the statute.
“Authority” is defined as a country’s “government” or any “public entity” within the country’s territory. 19 U.S.C. § 1677(5)(B). Because “public entity” is undefined, Commerce will be accorded Chevron deference in a permissible construction of thereof. See Guangdong Wireking Housewares & Hardware Co. v. United States, 37 CIT -, -, 900 F.Supp.2d 1362, 1377 (2013) (“Wireking ”), aff'd, 745 F.3d 1194 (Fed.Cir.2014).
Commerce has not promulgated a regulatory definition of “public entity”, but in its Final Determination, Commerce concluded that the Turkish government exercises “meaningful control” over Erdemir and Isdemir, and therefore that they are “authorities” under 19 U.S.C. § 1677(5)(B). Specifically, Commerce determined that the Turkish government controls Erdemir and Isdemir through its ownership and control of the military pension fund OYAK and through other means of control. Commerce explains that under its practice, majority-ownership of an entity by the government creates a rebuttable presumption of government control over that entity. Defs Resp. at 12. See Wireking, 37 CIT at -, 900 F.Supp.2d at 1377. Commerce also reasoned that even when there is little or no formal government ownership, a body may still be considered a “public entity” within the meaning of the statute if the government exercises “meaningful control” over it. See IDM at 22; PDoc 300 at Ex. 8 (section 129 determination attached to a petitioner’s February 5, 2014 comments). Commerce explains that the inquiry is based upon the totality of the record facts. See id. at 34, 35; PDoc 300 at Ex. 8, p. 5.
Commerce first determined that the Turkish government maintains extensive involvement in OYAK for several reasons. Id. at 21. It found that OYAK was created by law in 1961 “as an institution related to the Ministry of National Defense.” Id. (citation omitted). It found that the Turkish government maintains significant voting rights in OYAK because by statute 17 of the 40 members of OYAK’s “General Assembly” must be government officials (e.g., ministers of finance and defense). Id. (citations omitted). It found in Turkish law that the property of OYAK has the same rights and privileges of state property, that OYAK is exempt from corporate and other taxes, and that members of the armed forces must contribute part of their salaries to OYAK. See id. (citations omitted). Commerce also found significant a TESEV study’s conclusion that “a review of the membership and administrative structure of OYAK reveals that the military is clearly in control.” Id. (citation omitted).
Next, Commerce found that OYAK owns 49.29 percent of Erdemir through a wholly-owned holding company, and that Erde-mir owns 3.08 percent of its own shares as treasury stock. Therefore, Commerce found OYAK holds the majority of Erde-mir’s outstanding shares (ie., 49.29/96.08 50.8 percent, net of treasury stock). Id. at 20 n. 145, referencing CDocs 94-126, PDocs 179-207, at Ex. 4, pp. 4 and 14. Commerce also found that OYAK has members on Erdemir’s board of directors, and that OYAK effectively decides the composition of the majority of Erdemir’s board through its majority shareholder voting rights in Erdemir. Id. at 22 & n. 164, referencing Erdemir’s articles of association (which state that each shareholder or the representative of the shareholder attending an ordinary or an extraordinary “general assembly” meeting shall have one voting right for each share). Erdemir, in turn, controls Isdemir through its 92.91 percent ownership rights.
Commerce also determined the existence of direct “meaningful control” of Erdemir and Isdemir by the Turkish government. This was in the form, first, of certain usufruct rights (ie., veto power over any decisions related to the closure, sale, merger, or liquidation of Erdemir and/or Isdemir) held by the Turkish Prime Ministry Privatization Administration (TPA), which oversees the restructuring of Turkey’s enterprises, see id. at 21, as confirmed in Erdemir’s 2012 Annual Report, which indicated that TPA must approve “decisions regarding the closure, limitation upon restriction, or capacity curtailing of any of the integrated steel production plants or the mining plants owned by the Company and/or by the affiliates.” Id. Second, Erdemir’s 2012 Annual Report revealed that OYAK and TPA have members on Erdemir’s board of directors and that one. of the board’s two auditors is a representative of the Ministry of Finance. Id. at 22. Third, the 2012 Annual Report indicated that Erdemir had embraced the production and export goals of the Turkish government’s “Medium Term Programme (2012-2014)”, which provided that in order to improve Turkey’s balance of payments, the Turkish government would carry on “policies and supports enhancing domestic production capacity ... to decrease high dependency of production and exports on imports, especially for intermediate and capital goods.” Id. at 21. That is, the 2012 Annual Report stated that during the past year Erdemir “implemented policies which promoted the customers to engage in export-oriented production” and that it “supports the use of domestically mined resources for raw materials in view of ... the added value created by the domestic suppliérs in favor of the local industries.” Id. Commerce thus found Erdemir’s policy statements “in line” with the Turkish government’s stated policy in the aforementioned “Medium Term Pro-gramme” to improve Turkey’s balance of payments. Id.
Accordingly, Commerce determined that the Turkish government exercised “meaningful control” over Erdemir and Isdemir during the POI and therefore those companies were public bodies and hence “authorities” pursuant to 19 U.S.C. § 1677(5)(B). Id. at 22.
B. Analysis
As above indicated, Borusan challenges these conclusions, claiming that the parameters of “meaningful control” are central to the dispute before the court. United States Steel Corporation (“U.S. Steel”) and Maverick Tube Corporation (“Maverick”) support the Final Determination as it is. The court will attempt, seriatim, to address the parties’ various contentions.
Borusan’s general complaint is that Commerce has not formulated a consistent test for determining whether a company is a “public entity” and does not define what is meant by “meaningful control” or explain how that equates with a finding of a public entity, and that the closest articulation of any standard is simply Commerce’s repeated, eonclusory statement that the Turkish government exercised “meaningful control” over Erdemir and Isdemir through its ownership thereof by OYAK. It argues that an undefined “meaningful control” standard is not a reasonable interpretation of the statute and is further unlawful because it merely evidences the potential capacity to act as a government authority, and that there is no substantial evidence of record to support the conclusion that Erdemir and Isdemir are public entities because the statute “at a minimum” requires substantial evidence indicating that a public entity is either “acting as the government or carrying out government functions”, neither of which is the case here. Borusan Br. at 27-29.
Commerce argues that this last contention was raised in Wireking and rejected, see 900 F.Supp.2d at 1377, and that Boru-san’s argument should be similarly rejected. The court agrees Borusan’s contention is similarly unsupported, but to be clear, the plaintiffs in Wireking had proceeded from Commerce’s own five-step formulation, ie., “where it [is] unclear whether a firm [is] an authority based on ownership information alone,” it is “proper” to address the issue by consideration of “(1) government ownership; (2) the government’s presence on the entity’s board of directors; (3) the government’s control over the entity’s activities; (4) the entity’s pursuit of governmental policies or interests; and (5) whether the entity is created by statute”, and from there they claimed that the “actual” issue in that case was “whether an entity exercises elements of government authority”. Id. at 1376-78. Wireking’s specific holding addressed the reasonableness of concluding governmental control based on a rebuttable presumption thereof that arose from majority ownership, which the plaintiffs in that case failed to rebut. That is distinct from the matter at bar, which involves no evidence of direct government ownership, it being undisputed that the Turkish government sold its interest in Erdemir to OYAK in 2006.
Borusan’s broader argument puts the reasonableness of a “meaningful control” standard in the crosshairs. It appears undisputed that Commerce treated OYAK as a public entity by finding “significant involvement” of the Turkish government in OYAK, and that Commerce treated OYAK’s “meaningful control” of Erdemir and Isdemir as government control. Bo-rusan therefore accuses Commerce of being “reluctant”, to apply the above five-factor test (see id. at 1378-79), and that had Commerce done so it would have been “forced” to address the issue of the role of the Turkish government in Erdemir and Isdemir and to conclude that those companies are not public entities, because, according to Borusan, all the evidence of record indicates that they are acting in a commercial manner and seeking to maximize profits. Borusan Br. at 35-36, referencing Certain Hot-Rolled Carbon Steel Flat Products from South Africa, 66 Fed. Reg. 50412 (Oct. 3, 2001) (final affirmative CVD determ.).
It is debatable whether the five factors outlined in Wireking should be construed as “routine practice” or that Commerce would have altered its conclusion even if had considered each of them, in particular the test of “presence” as argued by Borusan. Cf. U.S. Steel Resp. at 21-22. But, Commerce is permitted to depart from routine practice if it provides a reasoned basis for doing so in any event. See, e.g., NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1328 (Fed.Cir.2009). Commerce also references MTZ Polyfilms, Ltd. v. United States, 659 F.Supp.2d 1303, 1308 (2009) for the proposition that bare assertions without legal support should be rejected, and that Borusan’s arguments represent only their philosophical views as to how the legal framework for subsidy program determinations should operate. But neither does Commerce elaborate on the legal framework’s operation, except by way of referencing Certain Kitchen Shelving and Racks from the People’s Republic of China, 74 Fed.Reg. 37012 (July 27, 2009) and accompanying IDM at 43-44 (“Kitchen Racks ”), for the explanation that it does not analyze the five factors for every firm in every case, and that such analysis can be redundant, where, as here, the Turkish government apparently controls the makeup of board and management. See id. at 43.
That explanation is not unreasonable as far as it goes. And while the court agrees with Borusan that the meaning of “meaningful control” -is not well-articulated in this instance, see, e.g., IDM at 22 n. 165, the court disagrees that it is “merely” conclusory. Certainly it is a legal conclusion, but it is one drawn from findings of fact, and the court has been instructed to “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974).
Maverick points out that Commerce’s analysis, including the five-factor test, has always focused on the government’s position of control over the firm. Maverick Resp. at 14. Borusan would seem to agree, for in contesting “meaningful control” here, it points to that standard’s apparent source in this proceeding for guidance: an Office of Policy (“OP”) memorandum (“OP Memo”) concerning the section 129 determination on findings of the Appellate Body of the WTO with respect to certain CVD determinations against various products from the People’s Republic of China (“PRC”). In consideration of the PRC’s system of governance and state functions, the OP Memo describes “meaningful control” as “something more than mere ‘formal links,’ such as majority ownership; rather, it is control related to the possession or exercise of governmental authority and governmental functions.” OP Memo at 3. In the OP Memo’s final analysis of such matters,
record evidence indicates that in the Chinese institutional setting, there may be instances in which the government may exercise meaningful control over enterprises in [the PRC] even in the absence of formal government ownership. Such instances justify further inquiry on a case-by-case basis. Examples include situations in which there is a significant [governing political party] or state presence on the board, in management^] or in the enterprises in the form of a party committee, or alternatively where the enterprise was previously privatized but ties to the government continue to exist or there were restrictions on the nature of the privatization.
Id. at 5.
Borusan argues, by implication, that this OP analysis of the Appellate Body’s “meaningful control” standard for treating entities without majority government ownership as public bodies should be confined to the context of the PRC economy and the control the PRC government has over entities operating in that country, including a constitutional mandate to uphold the “socialist market economy”. Boru-san’s Reply at 15 n. 4, referencing OP Memo at 2-4. Cf., e.g., Jiangsu Jiasheng Photovoltaic Technology Co., Ltd. v. United States, 38 CIT -, -, 28 F.Supp.3d 1317, 1338-51 (2014) (governmental control over export pricing decisions). Borusan contends that there is “absolutely no evidence” that the Turkish government exercises the same level of “control” over entities operating in the Turkish “capitalist” or competitive market economy as compared with the PRC’s “socialist market” economy in accordance with the OPM Memo test. Id. (plaintiffs’ italics).
It is not appropriate for a reviewing court to make e*-record findings, and that will not be done here. Moreover, the court does not agree that cross-country distinctions are necessary to an understanding of “meaningful” control, governmental or otherwise. “Control” does not mean one thing in the PRC, and another in Turkey — or any other country, for that matter. The ordinary meaning of control is “[t]o exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb.” See, e.g., Gonzales v. Oregon, 546 U.S. 243, 283, 126 S.Ct. 904, 163 L.Ed.2d 748 (2006), quoting Webster’s New International Dictionary 1954 (2d ed. 1950) (italics added); B-West Imports, Inc. v. United States, 75 F.3d 633, 636 (1996) (same). Whether the “meaningful” modifier adds any significance to “control” is debatable, but control means not only restraint but also action indicative of direction or influence, and such control, meaningful or lacking, can be determined with respect to any relational setting, governmental or otherwise, and not only that of a so-called “socialist market economy”, whatever that is supposed to mean.
Borusan points out, correctly, that “meaningful control” is a legal conclusion. See OP Memo at 3. And one might argue, therefore, that “meaningful control” is a flawed concept, since the “state” of civilization, excluding anarchy, is governance itself, by definition, and a “meaningful control” net could be far too readily (or “liberally”) cast towards nearly every conceivable situation. Howsoever that may be, “meaningful control” in the types of situations at bar is still, apparently, tethered to the context and purpose of the CVD law — to counteract actual subsidization. See also infra, section III. So long as the inquiry and conclusion are applied uniformly, it is not an unreasonable interpretation of the CVD statute in order to effectuate its purpose. See, e.g., Usinor Sacilor v. United States, 19 CIT 711, 720-21, 893 F.Supp. 1112, 1124 (1995) (“ITA need only apply a methodology which reasonably effectuates the purpose of the statute”) (citation omitted).
The OP Memo formulates “meaningful control” for CVD purposes as “control related to the possession or exercise of governmental authority and governmental functions”. OP Memo at 3. Necessarily, Commerce implies, that inquiry must proceed case by case and not be limited to consideration of corporeal voting rights and other corporate formalities. It would involve examination of any relevant and not necessarily quantifiable factors, such as informal or official ties, incentives, off-book obligations, and so forth. See id. Along those lines, it might not be unreasonable to presume that a governmental official’s mere “interest” in the company amounts to the proverbial “800-pound gorilla” in the room, even in the absence of voting rights held on behalf of the government, or that a governmental “presence” may still be felt regardless of whether it is embodied in a particular corporate individual or board member, or that a particular decision by an entity to act pursuant to or in accordance with some governmental edict, directive or influence has the intended effect of furthering the provision of a “benefit” to another entity, a/k/a “redistribution”. See, e.g., Jefferson County Pharmaceutical Association v. Abbott Laboratories, 460 U.S. 150, 158 n. 17, 103 S.Ct. 1011, 74 L.Ed.2d 882 (1983).
Apart from the reasonableness of any particular conclusion, the process of that examination, in order to determine whether “meaningful control” is at work, cannot be concluded unreasonable. “Commerce’s interpretation of public entities reflects the realities of corporate ownership and control and enables it to detect certain forms of subsidization [that] are not provided directly by the government, but instead pass through private or quasi-private channels.” Wireking, 900 F.Supp.2d at 1377. And the standard of judicial review requires substantial evidence in any case. Thus, for example, in addition to the other statutory CVD elements, the record must evince indicia on the part of the considered entity of actual action or reaction, not merely the potential therefor, that may reasonably be inferred to have been the consequence of an identifiable governmental influence directed towards the provision of a countervailable LTAR benefit. If substantial evidence reasonably supports any such conclusion, then the entity may be said to be “possessed” of or “exercised” by the particular governmental authority or function, and amount to an “authority,” which “state” of being is not exorcized regardless of whether it acts “in a commercial manner.” Cf., e.g., In re General Motors Corp., 407 B.R. 463, 476-79 (Bankr.S.D.N.Y.2009).
On this point, “I know it when I see it” rulings may seem antithetical to fostering predictability. Cf. Jacobellis v. State of Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964) (Stewart, concurring). But then again, “hard and fast” rules, to the extent they introduce rigidity, might not necessarily produce properly probative results either. See SEC v. Chenery Corp., 332 U.S. 194, 202-03, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). Time will tell the test’s development or abandonment. In the meantime, Borusan attempts to discredit, piece by piece, the evidence Commerce claims supports the overall conclusion that the Turkish government exercises meaningful control over Erdemir and Isdemir. See generally Borusan Br. at 29-35. In the end, the arguments fail to demonstrate that substantial evidence does not support Commerce’s conclusion.
Initially, Borusan disputes Commerce’s conclusion that the Turkish government controlled OYAK. Id. at 29-32. Next, Bo-rusan argues that the Turkish government does not control Erdemir, in reliance on the argument that the Turkish government does not control OYAK. Id. at 32-35. Bo-rusan portrays OYAK as a largely private actor that is like any other private pension fund operating in the general social security system and which just happens to have majority controlling ownership of the two largest Turkish HRS producers. Id. at 31. Borusan argues that (1) although OYAK is related to the Ministry of Defense, it is not acting in its capacity as a government agency, (2) its members of the board of directors are not even drawn from the military or the Turkish government, (3) there are no provisions in the law that OYAK’s board decisions are or cañ be subject to the approval, advice or instructions of the government, (4) OYAK has no duty to carry out any obligations or services for the Turkish government, and (5) OYAK is not a recipient of any share from the Turkish government budget. Id. at 30-32.
However, there is substantial evidence of record to support Commerce’s OYAK findings, e.g., that OYAK was created as part of the Turkish Ministry of National Defense, that the Turkish government has “extensive” voting rights in OYAK, and that OYAK has the same privileges as state property. See IDM at 21. Commerce also maintains that it considered OYAK’s majority ownership of the outstanding shares in Erdemir as part of the record evidence as a whole, including evidence that the Turkish government exerted control over Erdemir directly, in determining that the Turkish government exercises “meaningful control” over Erdemir and Isdemir, see id. at 21, 33-34, and it contends Borusan’s arguments only proffer an alternative interpretation of the record facts. For example, Commerce observes, Borusan’s emphasis on the fact that during the POI three of the nine board positions were held by representatives of OYAK Group companies, with the TPA holding one position, and the remaining five positions being held by others, so that OYAK did not even hold a majority on Erdemir’s board during the POI, does not address the Final Determination’s reasoning or the record evidence cited to explain how OYAK’s majority shareholder position in Erdemir means that it controls the selection of Erdemir’s board. See IDM at 34. Commerce points out that it found, as a factual and legal matter, that OYAK controls the selection of Erdemir’s board, regardless of whether Erdemir’s Annual Report identified a member as a representative of the Turkish government or OYAK. Id. Commerce further points out that Borusan claims that there is no way that Erdemir can be considered a public entity, because various private companies hold some relatively small amounts of stock, Borusan Br. at 35, but, Commerce furthermore points out, even if Er-demir has other shareholders, OYAK is still the controlling shareholder.
Duly noted. The court also notes Boru-san’s contrary portrayal of the TPA’s various veto rights, over closures, shutdowns, et cetera, as residual. Borusan Br. at 34. Borusan’s reply states that the TPA’s veto power under the privatization law over decisions related to the closure, sale, merger, or liquidation of Erdemir is very explicit, and by its terms limited, and cannot be relied upon to demonstrate control over other activities of Erdemir. Borusan Reply at 15, referencing CDoc 97 at Articles 21, 22, & 37, and CDoc 94 at 4-5. Borusan also argues that the other evidence of meaningful control cited by Commerce, namely that the TPA has a member on Erdemir’s board of directors and that one of the auditors of the company is a Representative of the Ministry of Finance, see Defs Resp. at 14, does not amount to “control,” and that there is no evidence that this is likely to result in, or has resulted in, any effect on the activities of Erdemir, nor does it show that “Erde-mir possesses or exercises governmental authority or governmental functions”. Commerce, however, rejected Borusan’s description of TPA’s power, finding that the ultimate veto authority over Erdemir’s capacity decisions and other record information demonstrated that the Turkish government exercised “meaningful control” over Erdemir, and that there was no record evidence to support Borusan’s claim of limited TPA or OYAK authority with respect to Erdemir. IDM at 31-35.
Borusan’s arguments do not address Commerce’s reasoning but only ask the court to reweigh the record evidence, which it cannot do. See, e.g., Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. 456 (“[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight”, but on review a “court may [not] displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo ”). That is, Borusan’s arguments in this regard do not render Commerce’s interpretation of the record “as a whole” unreasonable, and the court cannot substitute a different interpretation thereof. See id. Moreover, Borusan’s interpretation of the standard applied to Erdemir, expressed in all of its claims, assumes that Commerce was required to find that Erdemir and Isdemir were “acting as” the government or carrying out government functions, but that is not the standard Commerce applied in this instance, and none of Borusan’s arguments to this point demonstrate that Commerce’s standard is unreasonable or unlawful. See supra.
Attempting again, Borusan claims that Commerce “cherry-pick[ed] statements from Erdemir’s Annual Report and attribute[d] a meaning to them that conflicts with the statements around them.” Boru-san Br. at 33-34. Commerce’s response to that contention, in the IDM, was that “Bo-rusan’s claim is simply not true[:] Erde-mir’s Annual Report covering the POI states in plain language that Erdemir implemented policies to promote its customers to engage in export-oriented production and supported domestic suppliers in favor of local industries.” IDM at 34. Borusan here protests: that “even a cursory examination of this ‘evidence’ undermines its legitimacy and demonstrates that it is indicative of nothing”, and that the facts that the Turkish government has a “Medium Term Programme” that seeks to enhance domestic production capacity and discourage imports for state balance-of-payment issues, and that Erdemir wants to encourage more exports by its customers while supporting the use of domestic mined resources, are not substantial evidence of Turkish government control over Erdemir’s activities. Borusan Reply at 15-16, referencing Borusan Br. at 33 & n. 10.
Commerce, however, maintained that the relative commerciality of an act by a government or public entity is not relevant to the “authority” issue, because such a “line of argument conflates the issues of the ‘financial contribution’ being provided by an authority and ‘benefit.’ ” Def s Resp. at 19-20, quoting IDM at 35 (quoting Kitchen Racks), and referencing Wireking, 37 CIT at -, 900 F.Supp.2d at 1378 n. 11 (citing Hynix, supra, 30 CIT at 309, 425 F.Supp.2d 1287, 1306 (2006)), & Micron Technology, Inc. v. United States, 31 CIT 2031, 2036-37, 535 F.Supp.2d 1336, 1342 (2007). Commerce further explained in the IDM as follows:
If firms with majority government ownership provide loans or goods or services at commercial prices, ie., act in a commercial manner, then the borrower or purchaser of the good or service receives no benefit. Nonetheless, the loans or goods or service is [sic] still being provided by an authority and, thus, constitutes a financial contribution within the meaning of the Act.
IDM at 35, quoting Kitchen Racks’ accompanying issues and decision memorandum at cmt. 4.
Of course, it would be pointless to conclude that an entity is an “authority” if it is also determined that “the borrower or purchaser of the good or service receives no benefit.” See id. The implication, therefore, is that Borusan must have received a “benefit” through its transactions with Er-demir and Isdemir, despite the absence of finding that those entities were not “act[ing] in a commercial manner”. If the concern is that the market can be, or can become, significantly distorted by governmental influence over an entity regardless of the latter’s “commercial manner,” then there must be some demonstrable evidence on the record from which such distortion may reasonably be inferred or concluded. See supra. For that discussion, see infra, section II.B.
At this point, although Borusan is generally correct concerning Erdemir’s Annual Report statements that correlation is not causation, Commerce found, from the fact that Erdemir’s stated focus upon export-oriented production aligned with the Turkish government’s Medium Term Pro-gramme, that it was not unreasonable to interpret this as “additional” evidence that the government was exerting control over or influencing Erdemir to carry out national policy. See IDM at 21, 34. Cf. Smith-Corona Group v. United States, 713 F.2d 1568 (Fed.Cir.1983) (acceptance of respondents’ post-sale price adjustments calculated with out-of-scope sales figures was reasonable because proper apportionment reasonably correlated the adjustments to sales of in-scope merchandise). The court cannot, once again, find Commerce’s interpretation, of that correlated activity, unreasonable or substitute its own interpretation thereof. Universal Camera, supra, 340 U.S. at 488, 71 S.Ct. 456. Commerce could reasonably conclude that the statements in Erdemir’s annual report are indi-cia of action or reaction to governmental influence towards policy as reflected in the Medium Term Programme.
Be all that as it may, Commerce’s position is that in the final analysis the ultimate question was not whether any one fact, standing alone, indicated that Erde-mir and Isdemir are acting as “authorities” but whether the record evidence “as a whole” supported that determination. See IDM at 34. And on that basis, conversely, if any single material aspect of Commerce’s determination is shown unreasonable, then the determination “as a whole” unravels. See Universal Camera, 340 U.S. at 488, 71 S.Ct. 456 (“substantiality of evidence must take into account whatever in the record fairly detracts from its weight”). Here, the court cannot conclude that Commerce has not taken into account “whatever in the record fairly detracts from [the] weight”, id., of its conclusion that the Turkish government, both through OYAK and directly, exercised meaningful control over Erdemir and Isde-mir during the POI, as the conclusion is supported by “more than a mere scintilla” on each of the evidentiary elements upon which Commerce relied therefor, which is to say that the evidence is such that a reasonable mind might accept it as adequate to support Commerce’s conclusion, and none of Borusan’s arguments are sufficient to impugn Commerce’s findings. See, e.g., Suramerica de Aleaciones Laminadas C.A., v. United States, 44 F.3d 978, 985 (Fed.Cir.1994) (citation omitted). Although Borusan claims that Commerce’s determination was results-oriented, Boru-san Br. at 4-5, 8, Borusan provides no substantiating or clear evidence to support its assertion of bias on Commerce’s part. See United States v. Chemical Foundation, 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) (presumption of regularity).
That still leaves open the question of what “benefit” Borusan received in dealing with Erdemir, a question to which this opinion now turns, but before doing so, since remand is otherwise required, infra, Commerce is encouraged thereat to respond to whether the above interpretation of “meaningful control” is an accurate statement of Commerce’s interpretation.
II. Measuring the “Benefit” Under the CVD Statute
Borusan also challenges the manner in which Commerce measured the “benefit” that was conferred through its dealings with Erdemir and Isdemir.
A. Further Background
The CVD statute specifies that “the adequacy of remuneration shall be determined in relation to prevailing market conditions for the good or service being provided or the goods being purchased in the country which [sic ] is subject to the investigation or review.” 19 U.S.C. § 1677(6)(E). Commerce’s regulations set forth a hierarchy, or “tiers”, governing how it will determine whether adequate remuneration was paid. See 19 C.F.R. § 351.511. Tier one compares the “government price” paid a respondent “to a. market-determined price for the good or service resulting from actual transactions in the country in question.” Id., § 851.511(a)(2)(I). If Commerce concludes that there is no useable market-determined price with which to make such comparisons, it resorts to tier two, a comparison of “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., § 351.511(a)(2)(ii). See, e.g., Wireking, supra, 900 F.Supp.2d at 1381 (describing Commerce’s practice).
Borusan argued during the administrative proceeding for tier one pricing based on the significant volumes of its purchases of HRS from other domestic HRS suppliers and from import suppliers. See CDocs 135-136, Ex. 26. According to Borusan, these constituted approximately 40 percent of its total HRS purchases. Commerce, however, resorted to tier two pricing after concluding that the Turkish HRS market was “significantly distorted” by the Turkish government’s “substantial portion” involvement in it and therefore there were no useable market-determined prices for HRS in Turkey. IDM at 38.
In that process, Commerce relied on (1) the Turkish government’s statements in its questionnaire responses that Erdemir and Isdemir account for the “majority” of HRS production in Turkey, (2) import statistics for hot rolled coil during 2010-2012 and additional information placed on the record indicating that domestic HRS production accounted for a majority of the total supply of HRS in Turkey (including imports) during the POI and for the two prior years, and (3) the fact that the market share of domestic production in that total supply of HRS for each of these three years was higher than the market shares calculated for flat-rolled steel in the post-preliminary analyses. See id. at 22-24. Commerce determined that “a reasonable conclusion to draw from these facts is that, at a minimum, Erdemir and Isdemir account for a ‘substantial portion of the market.’ ” Id. at 24 & n. 181, and citing Preamble; Countervailing Duties; Final Rule, 63 Fed.Reg. 65348, 65377 (Nov. 25, 1998) (“Preamble ”). More specifically, in addressing the Turkish government’s and Borusan’s arguments that Erdemir’s and Isdemir’s market share is “well below” 50 percent, albeit for the flat-rolled steel market, Commerce restated a portion of a passage from the Preamble, discussed further below, and declared that it has found distortion in input markets when government providers accounted for less than 50 percent of the market for the input. IDM at 37, referencing Certain Coated Paper Suitable for High-Quality Print Graphics Using Sheet-Fed, Presses From the People’s Republic of China, 75 Fed.Reg. 59212 (Sep. 27, 2010) (final affirm. CVD determ.), and accompanying issues and decision memorandum.
At this point in the analysis, Commerce is clearly implying, but does not explicitly state, that its finding on the Turkish government’s “substantial portion of the market” means that the HRS market is significantly distorted. In the paragraph following the foregoing, Commerce then states
Moreover, to measure accurately the level of distortion in the Turkish HRS market, we required information on production and consumption of HRS in Turkey. The Turkish government stated that it was unable to provide this information. The Turkish government only provided production and consumption information for flat-rolled steel products. We acknowledge that we are basing our finding on the share of imports into the Turkish HRS market on two sources which may, or may not, be reported on identical bases: import statistics and production data. However,' no other data are available on the record. As explained above, the Turkish government only provided production and consumption information for flat-rolled steel products, but .was unable to provide more specific production information on HRS. As we also discussed above, record information suggests that production and consumption data for flat-rolled steel may not reflect the HRS market. Therefore, the Department has determined this information indicates that imports of HRS constituted an even lower share of the Turkish HRS market from 2010-2012 than the shares we used for flat-rolled steel products in the post-preliminary analyses. Moreover, the Turkish government stated that Erde-mir and Isdemir account for the majority of HRS - production in Turkey. Therefore, we conclude that Erdemir and Isdemir accounted for, at a minimum, a substantial portion of the HRS market in Turkey during the POI.
The GOT and Borusan have provided no further information on the record to allow us to determine the domestic supply of HRS in Turkey as a whole. If the Turkish government does not maintain the information in the form and manner requested, then it is the Turkish government’s responsibility to provide information on the administrative record so that the Department can analyze such information and determine a reasonable method to measure the volume of domestic supply of HRS in Turkey. The Turkish government has knowledge of how its agencies and organizations compile and maintain data, while the Department is not privy to such information. Therefore, as directed by section 782(c)(1) of the Act, the responsibility was with the Turkish government, and not the Department, to propose and present alternative data that we could use to analyze the Turkish HRS market. The information in the Petition Supplement, coupled with the import data, combined with the Turkish government’s statement that Erdemir and Isdemir account for the majority of HRS production in Turkey, support a conclusion that Erdemir and Isdemir account for at least a substantial portion of the HRS market in Turkey.
IDM at 37-38 (italics added; footnote quoting Preamble, supra, omitted). Thus, on the foregoing basis, Commerce declined to use Borusan’s purchase prices of HRS in Turkey to measure the benefit of the subsidy and resorted to tier two. Id. at 22, 38.
B. Analysis — Tier One (market-determined pricing)
On the issue of how to measure the amount of the “benefit”, Borusan contests Commerce’s disregard of the information Borusan submitted in support of tier one pricing. See, e.g., Borusan’s Br. at 11. Borusan complains that what Commerce has done in this matter is apply a “per se ” rule of market distortion: id est, having found that the Turkish government’s market portion is “substantial,” Commerce then found the Turkish HRS market “significantly” distorted (quod erat demonstrandum ). This, Commerce denies, stating that while it
normally prefers tier one market prices, when the record evidence demonstrates that the government controls a “substantial portion” of the market, the distortion is no longer “minimal,” and it is, given the record facts, “reasonable to conclude” that the prices are “significantly distorted.”.... Such an analysis is not a “per se rule,” but reflects Commerce’s consideration of the record as a whole when determining whether the record contains “usable” market-determined prices.
Def s Resp. at 25, referencing Preamble, 63 Fed.Reg. at 65377, and Wire Decking from the People’s Republic of China, 75 Fed.Reg. 32902 (June 10, 2010) (final CVD determ.), and accompanying issues and decision memorandum (“Wire Decking from the PRC”) atm.
The court acknowledges the agency’s normal preference for tier one market prices and its inherent authority to resort to tier two if the condition to do so is met. The condition that must be met for tier two, as indicated in the Preamble, is that the record must support reasonably concluding that the market is “significantly” distorted, since it is at that point that prices may no longer be concluded the result of a “competitive” market-pricing mechanism. See infra; see also Wire Decking from the PRC. At that point, the tier two inquiry arises of necessity, assuming it has properly been determined that there are no market conditions prevailing in the country for the good or service being investigated or reviewed. See Archer Daniels, 37 CIT at -, 917 F.Supp.2d at 1343. In that sense, tier two may be construed as a determination “in relation to prevailing market conditions” in the country subject to the investigation or review. Analysis as a whole, thus, would not be considered a per se determination, so long as it reasonably reflects consideration of the record, as a whole, when determining whether the record contains usable market-determined prices. But, as mentioned, whenever Commerce relies upon a record-as-a-whole justification, if any one aspect of the record is found to be lacking, the determination is thereby undermined.
Borusan’s contention appears to be that distortion needs to be examined independently of substantiality (of market share), while Commerce’s point appears to be that distortion needs to be examined in the context of substantiality. The court concludes that while Commerce’s ruling may have been facially in accordance with the Preamble and regulation, as argued by Commerce, it was still per se as applied, as argued by- Borusan, for the reasons that follow.
The relevant portion of the Preamble provides, first,
While we -recognize that government involvement in a market may have some impact on the price of the good or service in that market, such distortion will normally be minimal unless the government provider constitutes a majority or, in certain circumstances, a substantial portion of the market.
Preamble, 63 Fed.Reg. at 65377. Of interest here, apart from the first part of this compound predicate (i.e., recognition), is the clause that equates government involvement with distortion: if that involvement impacts the market’s pricing mechanism, then the involvement ■ is distortive. And that distortion can be minimal, or, implicitly, significant. If significant, then the normal market pricing mechanism may be presumed to be operating only on the pretense of free competition.
The latter part of that sentence of the Preamble is reasonably clear, in providing that where the governmental provider “constitutes a majority ... of the market”, ie., the market’s share, Commerce will find that the price of the good or sendee is, per se, significantly distorted,' ie., that the price is not a competitive-market price.
Also, that part is clear in indicating that where the government provides a “substantial portion” of the market, significant distortion will be found “in certain circumstances” .
But, it is entirely unclear what those “certain circumstances” are, and indication thereof is not provided by the Preamble’s next sentence:
Where it is reasonable to conclude that actual transaction prices are significantly distorted as a result of the government’s involvement in the market, we will resort to the next alternative in the hierarchy.
Preamble, 63 Fed.Reg. at 65377.
Obviously, Commerce’s conclusions in these matters need to be reasonable. The straightforward reading of the Preamble is that a “substantial portion” finding implies “significant distortion” in certain circumstances, and in the absence of clarification of what those “certain circumstances” are, and explanation of why the Turkish HRS market being examined for purposes of this OCTG investigation is one of those, Commerce’s finding that the Turkish HRS market is significantly distorted, based solely on its finding that the Turkish government provided a “substantial portion” of it, amounts, as argued by Borusan, to application of a per se rule.
As between whether distortion needs to be examined independently of substantiality or in the context of substantiality, either appears to be a correct interpretation of the “next” sentence of the Preamble, quoted above. This is indicated by the explicitly-stated reasonableness of concluding causality between transaction prices and government involvement in the market (i.e., “as a result of’) as well as Commerce’s “in certain circumstances” caveat in the prior sentence. Thus, even though Commerce may merit “substantial” deference in the reasonable construction of its own regulations, Borusan’s argument is not inaccurate as far as it goes. However, the argument overlooks that Commerce did attempt to obtain data from the Turkish government on HRS production and consumption that was relevant to the distortion question, ie., its “level”, and that the attempt was unsuccessful.
Even still, Borusan appears to be correct in arguing that Commerce’s determination is based on no actual record evidence of distortion. Borusan argues that: there are “(i) zero import duties on HRS imports from EU countries and a duty drawback system that exempts Turkish companies from import duties and VAT from non-EU countries; (ii) imports accounting for over one-third of total domestic supply of HRS; (in) foreign suppliers selling into the Turkish market consisting of the largest and most sophisticated global HRS suppliers, including ArcelorMittal,-Severstal, and U.S. Steel Kosice; and (iv) no dumping cases or other import restrictions on HRS imports into Turkey.” Bo-rusan’s Br. at 14. See id. at 19. But again, the court may not make a finding therefrom that actual distortion did not exist, in contradiction of Commerce. Nonetheless, for Commerce and the defendant intervenors to deny that Commerce has applied a per se ruling is rather telling. Maverick argues, alternatively, that a per se rule would still be in accordance with law. See Maverick Resp. at 25-26. That is not, however, the basis of Commerce’s determination or defense here. Apart from contending here that some of Borusan’s arguments should be deemed waived or are based on incomplete representations of the administrative record and the administrative determinations, Com-meree’s analysis only goes so far as to support finding that Erdemir and Isdemir account for at least a “substantial portion” of the HRS market in Turkey, and that the Turkish government has some so