Turkish Exporter Says Gov't Land Provision Should Have Undergone Revenue Forgone Analysis
Neither DOJ nor the Commerce Department provided a definition of the term "easement" in relation to Commerce's finding that a "conditional easement" exempting input supplier Nur Gemicilik from paying rent on land was a good provided by the Turkish government and subject to a less than adequate remuneration (LTAR) analysis, exporter Kaptan Demir Celik Endustrisi ve Ticaret argued in a reply brief (Kaptan Demir Celik Endustrisi ve Ticaret, CIT # 22-00149).
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In the 2020 administrative review of the countervailing duty order on steel concrete reinforcing bar from Turkey, Commerce said Nur's exemption from paying rent is a good provided for LTAR rather than revenue forgone. At CIT, Kaptan said the government, like Commerce at the administrative level, "does not present any legal basis, or precedential support, for the claim that 'conditional easements'" are subject to an LTAR and not a revenue forgone analysis. The brief said there "is no meaningful distinction between a lease and 'conditional easement' for purposes of this analysis."
Kaptan said the Nur agreement with the Turkish government lets Nur use and develop the land for only a temporary period. This is the "exact opposite of the purchase of a good," the company said, which typically means the "retention of the sole and exclusive ownership of an item ad infinitum." A key part of a good purchase also means that one is not expected to return the good, whereas a key element of a lease is that it must be returned, the brief said.
"Second, not only does the Nur agreement set a finite time period to use the good, but it also outlines the terms and consideration for that usage and the fee that would be charged if the terms are not met," the brief said. "In other words, the agreement indicates that Nur can use the land regardless of whether the terms and conditions are met but that if they are not met, usage fees are owed to the government." The existence of the right of use fee "could not be clearer."