Essar Steel Ltd. v. United States , 2011 CIT 10 ( 2011 )

Slip Op. 11-10
UNITED STATES COURT OF INTERNATIONAL TRADE
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ESSAR STEEL LIMITED, :
:
Plaintiff, :
:
v. : Before: Judith M. Barzilay, Judge
: Court No. 09-00197
UNITED STATES, :
:
Defendant, :
:
and :
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UNITED STATES STEEL :
CORPORATION, :
:
Defendant-Intervenor. :
:
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OPINION
[The court sustains the U.S. Department of Commerce’s Final Results of Redetermination.]
Arent Fox LLP (Mark P. Lunn, Kay C. Georgi and Diana Dimitriuc Quaia), for Plaintiff Essar
Steel Limited.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice
(David D'Alessandris), for Defendant United States; Deborah R. King, Office of the Chief
Counsel for Import Administration, U.S. Department of Commerce, Of Counsel, for Defendant.
Skadden Arps Slate Meagher & Flom, LLP (Robert E. Lighthizer, Jeffrey D. Gerrish and
Nathaniel B. Bolin), for Defendant-Intervenor United States Steel Corporation.
Dated: January 25, 2011
Barzilay, Judge: This matter returns to the court following the remand of the U.S.
Department of Commerce’s (“Commerce”) final results of the fifth administrative review of the
Court No. 09-00197 Page 2
countervailing duty order on certain hot-rolled carbon steel flat products from India. See Essar
Steel Ltd. v. United States, 34 CIT __, 721 F. Supp. 2d 1285 (2010) (“Essar I”); Certain Hot-
Rolled Carbon Steel Flat Products from India, 74 Fed. Reg. 20,923 (Dep’t of Commerce May 6,
2009) (final admin. review). In relevant part, the court’s previous opinion questioned
Commerce’s determination that Plaintiff Essar Steel Limited (“Plaintiff”) benefitted from the
Chhattisgarh Industrial Policy (“the Policy”) during the period of review, January 1, 2007 to
December 31, 2007. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1300-01. Specifically, the court
could not discern how Commerce reconciled its finding in the fourth administrative review that
Plaintiff could not benefit from the Policy from 2004 through 2009 with its application in this
administrative review of an adverse facts available 54.69 per cent ad valorem rate against
Plaintiff for benefits allegedly received from the same program. Id. Consequently, the court
ordered Commerce to reopen and place on the administrative record documents from the
previous administrative review, Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9 (“the
Documents”), and to consider them in its reassessment of whether Plaintiff benefitted from the
Policy. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1301. In its remand determination, Commerce
found that Plaintiff did not benefit from the Policy. Redetermination Pursuant to Court Remand,
C-533-821, at 5 (Dep’t of Commerce Oct. 28, 2010) (final results) (“Redetermination”). The
court sustains the Redetermination for the reasons below.
I. Standard of Review
The Court will hold as unlawful any Commerce determination “unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
Court No. 09-00197 Page 3
II. Discussion
Defendant-Intervenor United States Steel Corporation (“U.S. Steel”) now challenges
Commerce’s determination that Plaintiff did not benefit from the Policy on two grounds. U.S.
Steel first claims that the Documents underscore the need for Commerce to apply adverse facts
available because they show that Plaintiff did not act to the best of its ability during the
administrative review. Def.-Intervenor Br. 3-7. This contention lacks merit. The Documents,
provided by the State Government of Chhattisgarh, verify that Plaintiff did not benefit from the
Policy during the period of review because Plaintiff was not eligible to receive benefits from
2004 through 2009. See Redetermination at 4; Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9.
Commerce therefore reasonably supported its finding that Plaintiff did not benefit from the
Policy with substantial evidence.
Second, U.S. Steel insists that the court should not have ordered Commerce to consider
the documents on remand. Def.-Intervenor Br. 7-9. Although U.S. Steel could have raised this
contention in a motion for reconsideration within 30 days of the filing of Essar I, see USCIT R.
59(b), that time has passed, and the issue is not properly before the court. See Former Emps. of
Quality Fabricating, Inc. v. United States, 28 CIT 1061, 1070, 353 F. Supp. 2d 1284, 1292
(2003) (“Pursuant to the law of the case doctrine, when a court decides upon a rule of law, that
decision continues to govern the same issues in subsequent phases of the case . . . . If Defendant
had wished to challenge that finding, a motion for reconsideration would have been the
appropriate motion.”) (citing Arizona v. California, 460 U.S. 605, 618 (1983) (internal citation
omitted)). The court nevertheless wishes to reiterate that in Essar I, the court found that the stark
contrast between Commerce’s finding in the fourth administrative review that Plaintiff could not
Court No. 09-00197 Page 4
have benefitted from the Policy between 2004 and 2009 and its assessment of a 54.69 per cent ad
valorem duty for benefits received from the same program during the fifth administrative review
constituted an exceptional case that warranted the reopening of the administrative record. Essar
I, 34 CIT at __, 721 F. Supp. 2d at 1300-01; see Home Prods. Int’l, Inc. v. United States, 33 CIT
__, __, 675 F. Supp. 2d 1192, 1199 (2009). As the Federal Circuit has held, “Congress’ desire
for speedy determinations . . . should not be interpreted as authorizing proceedings that are based
on inaccurate data,” and when new facts emerge “between the date of an agency . . . decision and
the date of decision on appeal,” a court may properly rely upon those new facts and direct the
agency to consider them upon remand. Borlem S.A.-Empreedimentos Industriais v. United
States, 913 F.2d 933, 937, 939 (Fed. Cir. 1990) (citation omitted); see Anshan Iron & Steel Co. v.
United States, 28 CIT 1728, 1736-37, 358 F. Supp. 2d 1236, 1243 (2004). See genearlly Borlem
S.A.-Empreedimentos Industriais, 913 F.2d at 937-41.
IV. Conclusion
For the foregoing reasons, it is hereby
ORDERED that Commerce’s determination that Plaintiff did not benefit from the
Chhattisgarh Industrial Policy is SUSTAINED; and it is further
ORDERED that Commerce’s Redetermination is SUSTAINED.
Dated: January 25, 2011 /s/ Judith M. Barzilay
New York, New York Judith M. Barzilay, Judge