United States Steel Corp. v. United States , 33 Ct. Int'l Trade 1935 ( 2009 )

Slip Op. 09-152
UNITED STATES COURT OF INTERNATIONAL TRADE
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:
UNITED STATES STEEL :
CORPORATION, :
:
Plaintiff, :
:
and :
:
NUCOR CORPORATION, :
:
Plaintiff-Intervenor, :
:
v. :
:
UNITED STATES, :
:
Defendant. :
____________________________________: Before: Judith M. Barzilay, Judge
: Consol. Court No. 08-00239
ESSAR STEEL LIMITED, :
:
Plaintiff, :
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and :
:
UNITED STATES STEEL :
CORPORATION and NUCOR :
CORPORATION, :
:
Defendant-Intervenors. :
:
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Consol. Court No. 08-00239 Page 2
OPINION & ORDER
[Plaintiffs’ and Plaintiff-Intervenor’s Motions for Judgment Upon the Agency Record are granted
in part and denied in part.]
Dated: December, 30 2009
Skadden Arps Slate Meagher & Flom, LLP (Robert E. Lighthizer, Jeffrey D. Gerrish, Stephen J.
Narkin, and Nathaniel B. Bolin), for Plaintiff and Defendant-Intervenor United States Steel
Corporation.
Wiley Rein LLP (Alan H. Price and Timothy C. Brightbill), for Plaintiff-Intervenor and
Defendant-Intervenor Nucor Corporation.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of
Justice (David D'Alessandris) for Defendant United States; David Richardson, Office of the
Chief Counsel for Import Administration, United States Department of Commerce, of counsel,
for Defendant.
Arent Fox LLP (Mark P. Lunn and Diana Dimitriuc Quaia), for Plaintiff Essar Steel Limited.
Barzilay, Judge: Plaintiffs U.S. Steel Corporation (“U.S. Steel”) and Essar Steel Limited
(“Essar”), as well as Plaintiff-Intervenor Nucor Corporation (“Nucor”), challenge certain aspects
of the U.S. Department of Commerce’s (the “Department” or “Commerce”) administrative
review in Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results of
Countervailing Duty Administrative Review, 73 Fed. Reg. 40,295 (Dep’t Commerce July 14,
2008) (“Final Results”).1 Essar points to three alleged errors in Commerce’s calculation of the
benefit conferred by the Government of India in the subsidies it provided to the company: (1) the
1
Essar is a manufacturer and exporter of hot-rolled carbon steel flat products from India;
U.S. Steel and Nucor produce the subject merchandise in the United States.
Consol. Court No. 08-00239 Page 3
agency’s use of certain benchmark prices in determining that Essar purchased iron ore lumps and
fines2 from the National Mineral Development Corporation (“NMDC”) for less than adequate
remuneration;3 (2) the exclusion of the Central Sales Tax from Essar’s purchase price for iron ore
lumps and fines from the NMDC; and (3) the decision not to make certain month-end
adjustments to government prices of iron ore lumps and fines in the price comparison. Essar Br.
8-9. U.S. Steel and Nucor allege that Commerce erred when it declined to apply facts otherwise
available or adverse inferences with respect to Essar’s purported use of, and benefit from, five
new subsidies provided by the Government of India. U.S. Steel Br. 6-8; Nucor Br. 1-2. U.S.
Steel and Nucor’s remaining claims center on the Department’s determination that Essar did not
use those five new programs. U.S. Steel Br. 14-26; Nucor Br. 4-12. The court remands the
administrative review results for the reasons explained below.
I. Background
A. The Calculation of the Benefit Conferred to Essar
On February 2, 2007, the Department initiated the fifth administrative review of the
countervailing duty order on certain hot-rolled carbon steel flat products from India, covering the
period of review from January 1, 2006 to December 31, 2006. Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for Revocation in Part, 72 Fed. Reg.
2Essar uses iron ore lumps and fines – i.e., iron ore in two different forms – to produce
the subject merchandise. Essar Br. 3.
3
The Government of India holds 98% of the NMDC’s shares, and the entity is governed
by the nation’s Ministry of Steel. Certain Hot-Rolled Carbon Steel Flat Products from India:
Notice of Preliminary Results of Countervailing Duty Administrative Review, 73 Fed. Reg. 1578,
1586 (Dep’t Commerce Jan. 9, 2008).
Consol. Court No. 08-00239 Page 4
5005, 5006 (Dep’t Commerce Feb. 2, 2007). At that time, Commerce provided a copy of the
questionnaire to the Government of India with instructions to transmit certain sections of the
document to the producers and exporters subject to review, including Essar. Admin. R. Pub.
Doc. (“Pub. Doc.”) 9. One portion of the questionnaire concerned a program under which Essar
obtained iron ore from the Indian government at less than adequate remuneration and which
Commerce had previously found countervailable.
Commerce published its preliminary findings in January 2008, wherein it found that the
Government of India received less than adequate remuneration for its sales of iron ore lumps and
fines to Essar. Certain Hot-Rolled Carbon Steel Flat Products from India: Notice of Preliminary
Results of Countervailing Duty Administrative Review, 73 Fed. Reg. 1578, 1586-87 (Dep’t
Commerce Jan. 9, 2008) (“Preliminary Results”). In measuring the adequacy of remuneration,
the Department first looked for actual transaction prices between private parties in India or prices
from sales in government auctions to compare with the prices charged by the Government of
India for sales of lumps and fines to Essar. Id. at 1587 (citing 19 C.F.R. § 351.511(a)(2)(i)).
Commerce determined that the record did not include either of these prices and explained that, in
the absence of market-determined prices, the regulation permits the agency to use world market
prices that purchasers could obtain in India. Id. The Department then compared the price at
which the Government of India sold iron ore lumps and fines to Essar on an “FOB port” basis4
with an average of world market prices available in India for the same products on the same basis
4
The Incoterm “Free on Board (‘FOB’) port” is a sales term developed by the
International Chamber of Commerce and signifies that a seller delivers an order once the goods
pass the ship’s rail at the named port of shipment.
Consol. Court No. 08-00239 Page 5
as set forth in the Tex Report.5 Id. Commerce adjusted the average world market prices to reflect
an iron content consistent with the sales by the Indian government to Essar. Id. The Department
preliminary concluded that Essar received a countervailable benefit of 6.11% from the
Government of India’s sales of high-grade iron ore lumps and fines at less than adequate
remuneration. Id. Including other subsidies, Commerce calculated Essar’s total net
countervailable subsidy rate as 12.87%. Id. at 1598.
After the Department published the Preliminary Results, the agency issued supplemental
questionnaires to Essar in which it sought additional information on Essar’s purchases of iron ore
lumps and fines, among other data. Essar provided the requested information regarding a
purchase of iron ore lumps and fines from an unaffiliated supplier located outside of India.
Admin. R. Confidential Doc. (“Conf. Doc.”) 44 at 3-5.
On July 14, 2008, the Department published the Final Results of its review of the subject
merchandise. 73 Fed. Reg. 40,295. Commerce found that Essar received a countervailable
benefit of 13.21% for its purchases of iron ore lumps and fines from the Government of India, an
increase of 7.1% over the benefit calculated for those purchases in the Preliminary Results.6
Issues and Decision Memorandum: Final Results of Administrative Review, C-533-821 (Dep’t
Commerce July 7, 2008), Pub. Doc. 292 at 16 (“Issues and Decision Memorandum”). In so
5
The Tex Report is a daily Japanese publication that reports on world-wide prices for iron
ore. Preliminary Results, 73 Fed. Reg. at 1587. Both the Government of India and Essar
submitted copies of several issues of the Tex Report in November 2007 that included iron ore
prices from Australian and Brazilian producers, as well as Japanese and European steel makers.
Id. at 1587 n.20.
6
Consequently, the total net countervailable subsidy rate applicable to Essar increased
from 12.87 to 17.50%. Final Results, 73 Fed. Reg. at 40,297.
Consol. Court No. 08-00239 Page 6
doing, the agency changed the benchmark prices it used in the Preliminary Results to determine
whether the Government of India’s sales of iron ore lumps and fines were for less than adequate
remuneration. In the Preliminary Results, Commerce used an average of the world market prices
in the Tex Report for iron ore lumps and fines in India, which included Government of India
prices from Baidalia and Donimalai, India and import prices from Hamersley, Australia. Issues
and Decision Memorandum at 33 & n.9. For the Final Results, the Department stated that the
pertinent regulation favored the use of the actual transaction price at which Essar purchased iron
ore lumps from an unaffiliated private supplier as the benchmark price to measure the adequacy
of remuneration for Essar’s purchases of iron ore lumps from the Government of India. Id. at 33-
34. Commerce reasoned that because Essar provided information on those actual purchases after
the Preliminary Results, that data would be used in the agency’s final determination. Id. With
respect to purchases of iron ore fines, the agency limited the benchmark price to offers for sale in
India of iron ore fines from Hamersley, Australia found in the Tex Report. Id. at 33-34 & n.9.
The Department explained that it declined to use the Government of India’s prices for iron ore
fines in establishing the benchmark price because those sales were made by the NMDC, “the
very government provider of the good at issue.” Id. at 33. To ensure comparability between the
two prices, Commerce adjusted the benchmarks to reflect a price that would be paid if the
product were imported into India, including the duties and delivery charges necessary to deliver
the product to the factory gate. Id. at 35-36 (citing § 351.511(a)(2)(iv)). Commerce also found
that the record did not contain data concerning duties and taxes on imports, and therefore it
excluded the Central Sales Tax from Essar’s purchases from the NMDC. Id. at 36. Finally, with
Consol. Court No. 08-00239 Page 7
regard to Essar’s purchases of iron ore fines, the Department declined to make certain month-end
adjustments Essar requested, because the data was incomplete and Essar failed to support its
request with the necessary information. Id. at 38.
B. The Five New Countervailable Programs
In May 2007, U.S. Steel submitted a timely allegation that Essar had received actionable
benefits under previously unexamined programs promulgated under (1) the Special Economic
Zone Act of 2005, (2) the State of Gujarat Special Economic Zone Act, (3) the State of Gujarat
Captive Ports Program, (4) the State of Andhra Pradesh Industrial Policy, and (5) the State of
Chhattisgarh Industrial Policy. Pub. Doc. 48 at 1-2. On October 4, 2007, Commerce initiated its
investigation into the newly alleged subsidies. Pub. Doc. 97. The Department sent the
Government of India and the relevant state governments a questionnaire requesting information
on these alleged subsidy programs, including Essar’s use and receipt of benefits under them.
Pub. Doc. 101. The Indian government initially responded that Essar had provided the necessary
information and that it had nothing to add. Pub. Doc. 151 at 1. The Department sent the Indian
government another copy of the questionnaire and explained that the questions addressed to the
foreign government were distinct from those contained in the questionnaires sent to Essar. Pub.
Doc. 163 at 1. Commerce also warned that the Government of India’s failure to respond could
result in the application of adverse facts available with respect to the countervailability of those
programs. Pub. Doc. 163 at 1. Neither the Government of India nor the relevant Indian state
governments submitted responses to the questionnaires, despite having requested and received
three extensions of time to file their answers. Pub. Docs. 163, 166. Essar submitted its response
Consol. Court No. 08-00239 Page 8
to the questionnaire and stated that it did not use any of the newly alleged subsidy programs.
Pub. Doc. 138 at 1-14.
In the Preliminary Results, the Department partially resorted to adverse facts available
because the Government of India and relevant state governments did not respond to the agency’s
October 2007 questionnaire by the established deadline. Preliminary Results, 73 Fed. Reg. at
1581. Consequently, the agency found that the programs constituted government financial
contributions that were specific to the hot-rolled steel industry. Id. at 1581. However,
Commerce relied upon Essar’s specific responses to the questionnaire to determine that the
company did not use, and therefore did not receive a benefit from, any of those five programs.
Id. at 1597-98. The Department did not articulate the basis for its determination of non-use, but
it did invite interested parties to comment for the final results on whether it would be “more
appropriate to use facts available in determining to what extent Essar . . . may have benefitted
from these newly alleged programs.” Id. at 1581 n.9.
In response to the Department’s request in the Preliminary Results, U.S. Steel submitted a
brief to Commerce in which it argued that the agency should apply adverse inferences and find
that Essar used, and therefore benefitted from, the newly alleged government programs. Pub.
Doc. 270. U.S. Steel reasoned that certain facts – (1) Essar’s unreliable responses of non-use and
(2) the Government of India and the respective state governments’ failure to respond to the best
of their abilities to Commerce’s requests for information on the new programs – warranted the
adverse inferences. Pub. Doc. 270 at 5-21.
Consol. Court No. 08-00239 Page 9
In the Final Results, Commerce affirmed that it should apply adverse inferences and find
that the newly alleged programs were government financial contributions specific to the hot-
rolled steel industry because the Government of India and relevant state governments failed to
respond to the agency’s questionnaires. Issues and Decision Memorandum at 5. However, the
Department still found that it was appropriate to rely on Essar’s questionnaire responses with
regard to the benefits for each program rather than resort to facts otherwise available or adverse
inferences. Id. at 41-43 (citing Countervailing Duty New Shipper Review: Certain In-shell
Roasted Pistachios from the Islamic Republic of Iran, 73 Fed. Reg. 9993 (Dep’t Commerce Feb.
25, 2008); Stainless Steel Sheet and Strip in Coils from the Republic of Korea: Final Results of
Countervailing Duty Administrative Review, 73 Fed. Reg. 2456 (Dep’t Commerce Jan. 15,
2008); Final Results of Countervailing Duty Administrative Review: Certain In-shell Roasted
Pistachios from the Islamic Republic of Iran, 71 Fed. Reg. 27,682 (Dep’t Commerce May 12,
2006)). Commerce reviewed the comments received on each of the findings of non-use of the
five alleged subsidy programs and found that Essar did not use any of those programs. Id. at 45-
49.
II. Subject Matter Jurisdiction & Standard of Review
Pursuant to 28 U.S.C. § 1581(c), the Court has exclusive jurisdiction over any civil action
commenced under section 516A of the Tariff Act of 1930, which provides for judicial review of,
among other proceedings, the Department’s administrative review of a countervailing duty order.
19 U.S.C. § 1516a(a)(2)(B)(iii). In reviewing Commerce’s determinations, the Court will hold
Consol. Court No. 08-00239 Page 10
unlawful any conclusion “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” § 1516a(b)(1)(B)(i).
Substantial evidence on the record constitutes “less than a preponderance, but more than a
scintilla.” Novosteel SA v. United States, 25 CIT 2, 16, 128 F. Supp. 2d 720, 725 (2001)
(quotation marks & citation omitted), aff’d, 284 F.3d 1261 (Fed. Cir. 2002). The Department
must support its determination with such relevant evidence that “a reasonable mind might accept
as adequate to support a conclusion” in light of the entire record, including “whatever fairly
detracts from the substantiality of the evidence.” Atl. Sugar, Ltd. v. United States, 744 F.2d
1556, 1562 (Fed. Cir. 1984) (quotation marks omitted). This standard necessitates that the
agency thoroughly examine the record and “articulate a satisfactory explanation for its action
including a rational connection between the facts found and the choice made.” Motor Vehicle
Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983) (quotation marks
omitted); accord Bando Chem. Indus., Ltd. v. United States, 16 CIT 133, 136, 787 F. Supp. 224,
227 (1992). The possibility of drawing two inconsistent conclusions from the evidence does not
preclude Commerce’s ruling from being supported by substantial evidence. Thai Pineapple Pub.
Co. v. United States, 187 F.3d 1362, 1365 (Fed. Cir. 1999); Novosteel SA, 25 CIT at 12, 128 F.
Supp. 2d at 730.
To ascertain whether a particular agency determination is in accordance with law, the
Court applies the two-step test articulated by the Supreme Court in Chevron U.S.A., Inc. v.
Natural Resources Defense Council. 467 U.S. 837 (1984). The court first examines whether
Congress has spoken directly to the question at hand. If Congress’s intent is clear, then the court
Consol. Court No. 08-00239 Page 11
and the agency must give effect to that “unambiguously expressed” purpose. Id. at 843. Only
where the court finds the relevant statute ambiguous or silent with respect to the specific issue
must it defer to the Department’s reasonable interpretation of the underlying law. See id. This
deference extends to technical methodologies that Commerce may apply to fulfill its statutory
mandate. Thai Pineapple Pub. Co., 187 F.3d at 1365 (“The methodologies relied upon by
Commerce in making its determinations are presumptively correct.”); see Hynix Semiconductor,
Inc. v. United States, 29 CIT 995, 1000, 391 F. Supp. 2d 1337, 1342 (2005).
III. Discussion
A. The Department’s Calculation of the Benefit Conferred to Essar by the Government of
India in Sales of Iron Ore Lumps and Fines
Essar challenges several aspects of the Department’s conclusion that the Government of
India received less than adequate remuneration for its sales of iron ore lumps and fines to the
company. The court affirms in part and remands in part Commerce’s determination on this issue.
1. The Statutory Framework for the Calculation of a Subsidy
The purpose of the countervailing duty regime is to “impose additional duties on
imported products which are subsidized by the country of export or manufacture.” Wolff Shoe
Co. v. United States, 141 F.3d 1116, 1117 (Fed. Cir. 1998). The Department levies
countervailing duties on those subsidized imports to “offset the unfair competitive advantages
created by the foreign subsidies.” Id. at 1116 (footnote omitted). By statute, Commerce must
discern whether the foreign government subsidized the subject imports, and the U.S.
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International Trade Commission must establish whether those imports cause or threaten an
industry in the United States with material injury. 19 U.S.C. § 1671(a).
A subsidy occurs when a foreign government provides a financial contribution to a
specific industry and a recipient within the industry receives a benefit as a result of that
contribution. Id. § 1677(5)(B). One type of countervailable subsidy is a foreign government’s
sale of goods for less than adequate remuneration to a company within a particular industry.
§ 1677(5)(D)(iii), (E)(iv). The Department determines the adequacy of remuneration by
comparing the government price with a market-determined price for such goods in the country
subject to the review.7 § 1677(5)(E). Expanding on this statutory directive, Commerce uses a
three-tiered hierarchy of benchmarks in its price comparison. § 351.511(a)(2). The first and
preferred benchmark is a market-determined price arising from actual transactions of the same
good in the country being reviewed, and that price may stem from “actual transactions between
private parties, actual imports, or, in certain circumstances, actual sales from competitively run
government auctions.” § 351.511(a)(2)(i). In the event that no market-determined price is
available, the agency will compare 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.”8 § 351.511(a)(2)(ii). In using either (1) an actual transaction price or (2) a world
market price as the benchmark in its price comparison, Commerce will adjust the benchmark “to
7
The relevant factors affecting market conditions within that country include “price,
quality, availability, marketability, transportation, and other conditions of purchase or sale.”
§ 1677(5)(E).
8
Commerce averages world market prices where more than one is available, “making due
allowance for factors affecting comparability.” § 351.511(a)(2)(ii).
Consol. Court No. 08-00239 Page 13
reflect the price that a firm actually paid or would pay if it imported the product” and include
“delivery charges and import duties” where appropriate. § 351.511(a)(2)(iv). Only when no
world market price is available to purchasers in the country subject to the review will the
Department “measure the adequacy of remuneration by assessing whether the government price
is consistent with market principles.” § 351.511(a)(2)(iii).
2. The Department’s Calculation of the Benchmark Prices for Iron Ore Lumps and
Fines
In the Final Results, the Department used the actual transaction price at which Essar
purchased iron ore lumps from an unaffiliated private supplier outside of India as the benchmark
in its price comparison to determine whether the Government of India received less than
adequate remuneration. Issues and Decision Memorandum at 33-34. As the benchmark for iron
ore fines, Commerce used the Tex Report offers for sale in India of iron ore fines from
Hamersley, Australia. Id. at 33-34 & n.9. Essar contends that the Department acted contrary to
law because it did not use actual transaction prices of iron ore lumps and fines between the
Government of India and Japanese customers as the benchmarks in measuring whether Essar’s
purchases from the Indian government were for adequate remuneration, as the agency did in
previous administrative reviews. Essar Br. 17-24. Essar alleges that Commerce failed to
adequately explain this departure. Essar Br. 15-17. Essar also complains that physical
differences and other dissimilar conditions of sale prevent a fair comparison between the iron ore
lumps and fines offered by the Government of India, on the one hand, and iron ore lumps from an
Consol. Court No. 08-00239 Page 14
unaffiliated foreign supplier and Australian iron ore fines, on the other.9 Essar Br. 24-30.
Finally, Essar avers that the agency should adjust the benchmark prices for iron ore lumps and
fines to reflect the same terms of delivery as the Indian government’s prices. Essar Br. 26-28,
30-34. More specifically, Essar argues that Commerce should compare prices on an ex-mine
basis and should exclude freight and delivery charges from the comparison. Essar Br. 26-28, 30-
34.
The Department did not err in its calculation of the benchmark for iron ore lumps.
Pursuant to § 351.511(a)(2)(i), Commerce used the preferred benchmark in its price comparison
of iron ore lumps – “a market-determined price resulting from actual transactions in the country
in question.” Issues and Decision Memorandum at 34. It is undisputed that subsequent to the
publication of the Preliminary Results, Essar submitted data on its actual purchases of iron ore
lumps from an unaffiliated foreign company. Id. Essar fails to demonstrate that the prices
offered by the NMDC, a government authority under § 1677(5)(B), reflect “actual transactions
between private parties, actual imports, or, in certain circumstances, actual sales from
competitively run government auctions.” § 351.511(a)(2)(i). First, the NMDC prices for iron ore
lumps are export prices to Japan and are not reflective of a market-determined price for the good
resulting from actual transactions in India. Second, the NMDC, as a government authority, is
9
Essar’s claim that the dissimilar conditions of sale prevent a fair comparison between
the two benchmarks and the NMDC prices is not persuasive. That the sales terms were different
in each transaction does not foreclose Commerce from using the non-NMDC prices, nor does it
suggest that the NMDC prices were market-derived. In fact, no language in the controlling
regulation limits the Department’s comparison to prices made under identical sales terms. To
read that limitation into the law would undermine the efficacy of the countervailing duty regime.
See Wolff Shoe Co., 141 F.3d at 1117.
Consol. Court No. 08-00239 Page 15
free from normal profit-maximization pressures, and it may make pricing decisions based on
other, non-commercial criteria.10 The Department has stated that “actual sales from government-
run competitive bidding” may constitute a market-determined price based on actual transactions
in the country subject to review and therefore may be used as a benchmark price if the foreign
sovereign “sells a significant portion of the goods . . . through competitive bid procedures that are
open to everyone, that protect confidentiality, and that are based solely on price.” Countervailing
Duties, 63 Fed. Reg. 65,348, 65,377 (Dep’t Commerce Nov. 25, 1998). However, no evidence in
the record suggests that the NMDC prices resulted from competitive bid procedures that were
open to all consumers, protected confidentiality, and based solely on price. Moreover, using the
NMDC prices in this review illogically would require Commerce to compare one Government of
India price to another. Finally, Essar’s submission of its actual purchases of iron ore lumps from
an unaffiliated foreign company during the period of review is a unique fact absent from previous
administrative reviews that justifies Commerce’s use of a different benchmark. See Peer
Bearing Co.-Changshan v. United States, 32 CIT ___, ___, 587 F. Supp. 2d 1319, 1325 (2008)
(explaining that “each administrative review is a separate segment of proceedings with its own
unique facts” (quotation marks omitted)).
Similarly, Commerce’s use of the Hamersley, Australia prices as the benchmark for iron
ore fines is not contrary to law. After establishing that no actual transaction prices were
10
Essar also claims that the NMDC’s profitability demonstrates that it does not provide
Essar with iron ore lumps at less than adequate remuneration. Essar Br. 22. The overall
profitability of the NMDC does not demonstrate that its prices to Essar are market-based. The
NMDC could walk the line between maximum profitability and bankruptcy without charging
market-based rates, especially since the government entity has access to capital and other
resources that are not otherwise available to private competitors.
Consol. Court No. 08-00239 Page 16
available, the Department acted pursuant to the pertinent regulation and used the only world
market price available in India on the record – iron ore fine prices from Hamersley. Issues and
Decision Memorandum at 33 n.9. The agency explained that it would limit the benchmark prices
derived from the Tex Report and use only Hamersley prices because the other prices listed in that
report were from the NMDC, “the very government provider of the good at issue.” Id. at 33.
The reasoning behind Commerce’s decision to limit the benchmark price for iron ore fines to the
Hamersley price echoes the same concerns the United States raised with respect to the use of the
NMDC prices of iron ore lumps, namely, that the comparison of NMDC to NMDC prices would
be a meaningless measure of the adequacy of remuneration. See id. Notwithstanding Essar’s
assertions to the contrary, there is no indication that the NMDC’s prices of iron ore fines are
representative of either (1) “actual transactions between private parties, actual imports, or, in
certain circumstances, actual sales from competitively run government auctions” or (2) a market-
determined price available to purchasers in India and, therefore, must be used as the benchmark.
§ 351.511(a)(2)(i)-(ii).
Additionally, the Department’s decision to eliminate the NMDC price from the world
market price benchmark for iron ore fines is not contrary to law. Commerce acted in accordance
with § 351.511(a)(2) when it used a world market price as the benchmark after finding no
market-determined prices based on actual transactions in India. Id. Essar also fails to
acknowledge that Commerce did not establish a benchmark price for iron ore fines in its previous
administrative review, given Essar’s claim that it purchased only iron ore lumps from the
NMDC. See Issues and Decision Memorandum: Final Results of Administrative Review of the
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Countervailing Duty Order on Certain Hot-Rolled Carbon Steel Flat Products from India, C-
533-821 (May 10, 2006) at 4, available at http://ia.ita.doc.gov/frn/summary/india/E6-7506-1.pdf.
For these reasons, the Department’s decision to use only the Hamersley price as the benchmark
for iron ore fines is in accordance with law.
Essar also failed to exhaust administrative remedies with regard to its claim that
Australian iron ore fines are not comparable to the fines sold by the NMDC. The Court requires
litigants in countervailing duty proceedings to exhaust administrative remedies “where
appropriate,” 28 U.S.C. § 2637(d), in part so that the Court does not usurp the agency’s powers
by setting aside an “[agency] determination upon a ground not theretofore presented and
deprive[] the [agency] of an opportunity to consider the matter, make its ruling, and state the
reasons for its action.” Unemployment Comp. Comm’n of Territory of Alaska v. Aragan, 329
U.S. 143, 155 (1946) (footnote omitted). Exhaustion is almost always appropriate in the
countervailing duty context because “it allows the agency to apply its expertise, rectify
administrative mistakes, and compile a record adequate for judicial-review.” Carpenter Tech.
Corp. v. United States, 30 CIT 1373, 1374-75, 452 F. Supp. 2d 1344, 1346 (2006). Commerce
used the Hamersley price in the Preliminary Results and Essar did not object to its use at the
administrative level on the basis that it was not a comparable product. Thus, because Essar failed
to exhaust its administrative remedies, this issue is not ripe for judicial review. See id.Finally, Commerce properly included freight and delivery charges in the benchmark
prices. When the Department uses either (1) an actual transaction price or (2) a world market
price as the benchmark in its price comparison, it adjusts the benchmark “to reflect the price that
Consol. Court No. 08-00239 Page 18
a firm actually paid or would pay if it imported the product” and adds the applicable “delivery
charges and import duties.” § 351.511(a)(2)(iv). This practice ensures that the Department
engages in a fair comparison between the government price and the price that a company “would
pay if it imported the product.” Id. To calculate the price that a company would pay if it
imported the good, Commerce must assume that there are no cheaper, domestic market-based
alternatives of the same good available to the consumer. See id. The cost of having a foreign
product available in India necessarily includes the applicable “delivery charges and import
duties.” Id. It would be inconsistent with law to make the comparison on an ex-mine basis, as
Essar requests, because to do so would offend § 351.511(a)(2)(iv) and not accurately represent
the price a firm would pay if it had imported the product in India. Thus, Commerce did not err
when it included delivery charges and import duties in its calculation of the benchmark prices for
iron ore lumps and fines.
3. The Department’s Calculation of the Government of India’s Prices for Iron Ore
Lumps and Fines
Essar challenges two aspects of Commerce’s calculation of the Government of India’s
prices used in the comparison to measure the adequacy of remuneration. First, Essar contests the
Department’s decision not to include the Central Sales Tax in the price that Essar paid to the
Government of India for iron ore lumps and fines. Essar Br. 34-35. Emphasizing that the
Central Sales Tax is a cost incurred by the company in purchasing from the NMDC, Essar
contends that the deduction “created a distortion where none previously existed” and that the tax
must be included to ensure a fair comparison. Essar Br. 34-35. Second, Essar argues that
Consol. Court No. 08-00239 Page 19
Commerce should have made certain end-of-the-month adjustments to the company’s iron ore
lump and fine purchases from the NMDC, as Commerce did in the Preliminary Results. Essar
Br. 35-37. Essar avers that the Department did not ask any questions about the adjustment
information or indicate that the information provided was deficient, and therefore the agency
acted contrary to 19 U.S.C. § 1677m(d).
The Department did not support its decision to deduct the Central Sales Tax from the
government price with substantial evidence. After acknowledging that it made certain
adjustments to the benchmark price to ensure a fair comparison, Issues and Decision
Memorandum at 35-36, Commerce reasoned that it should exclude the Central Sales Tax from
the government price “because the import duties for imports of iron ore are not on the record”
and, therefore, the agency was “not able to adjust the benchmark price to include import duties
and any other taxes payable on imports of iron ore.” Id. at 36. Commerce does not explain why
this particular deduction is an adequate substitute for an adjustment to the benchmark price. The
Department also failed to provide a logical explanation as to why the deduction of the Central
Sales Tax, as opposed to some other deduction from the government price, resulted in a more
appropriate comparison. See id. at 34-36. Because the agency’s decision fails to demonstrate “a
rational connection between the facts found and the choice made,” the court remands the issue
for the agency to explain its position or take other action. Motor Vehicle Mfrs. Ass’n of the U.S.,
Inc., 463 U.S. at 43 (quotation marks omitted).
Commerce properly disregarded Essar’s claimed adjustments to the iron ore lumps and
fines prices charged by the NMDC. The respondent bears the burden of creating an adequate
Consol. Court No. 08-00239 Page 20
record in a countervailing duty proceeding. SKF USA Inc. v. United States, 29 CIT 969, 977, 391
F. Supp. 2d 1327, 1334 (2005) (citing Tianjin Mach. Imp. & Exp. Corp. v. United States, 16 CIT
931, 936, 806 F. Supp. 1008, 1015 (1992)). When Commerce determines that a response to an
information request fails to comply with that request, the Department must promptly inform the
party submitting the response “of the nature of the deficiency” and provide that party “with an
opportunity to remedy or explain the deficiency in light of the time limits established.”
§ 1677m(d). If the party submits additional information in response to the Department’s request
and the response is either (1) unsatisfactory or (2) untimely, then the agency may disregard the
subsequent responses, subject to certain conditions in § 1677m(e).11 Id.
In its initial response to the Department’s countervailing duty questionnaire, Essar
reported the quantity and value of its purchases of iron ore lumps and fines from the NMDC on a
transaction-specific basis in a spreadsheet. Conf. Doc. 2 at Ex. 8; Pub. Doc. 37 at Ex. 8. For
some of these transactions, Essar included certain non-quantitative data under the “amount”
column. Conf. Doc. 2 at Ex. 8; Pub. Doc. 37 at Ex. 8. In the Preliminary Results, the
Department measured the adequacy of remuneration and calculated the benefit from the sale of
iron ore fines by the NMDC using certain cumulative numbers provided by Essar, not the
individual transactions reported as separate line items in the company’s spreadsheet. Conf. Doc.
11
The Department must consider information submitted by an interested party that is
necessary to the determination in administrative review, but that fails to meet the relevant
submission requirements, if: (1) the submission is timely; (2) the information therein is
verifiable; (3) the submitted information is reliable; (4) the interested party acted to the best of its
ability to satisfy the relevant submission requirements; and (5) the information can be used
without undue difficulty. § 1677m(e). This provision is inapplicable to the facts of this case, as
Commerce did not state that Essar’s responses were unsatisfactory, but instead found the
information to be irrelevant to the agency’s analysis. Issues and Decision Memorandum at 38.
Consol. Court No. 08-00239 Page 21
38 at 10-11. Subsequently, Commerce issued a supplemental questionnaire in which it instructed
Essar to answer, among other questions, what was included in the “amount” column of its
spreadsheet detailing purchases of iron ore fines. Pub. Doc. 218 at 4. Specifically, Question 12
asked Essar to “clarify the basis of th[e] price, FOB port, FOB mine, or some other basis,” listed
in the “amount” column. Pub. Doc. 218 at 4. In response, Essar reported that “[i]n the case of
fines, the amount ‘column’ includes ex mine price[s], cess [sic], royalty, local sale[s] tax[es] and
port expenses if any.” Pub. Doc. 242 at 7. Essar did not explain the significance or nature of the
non-quantitative data associated with certain transactions under the “amount” column, nor did
Essar identify these figures as adjustments. In other words, Essar did not clarify how it
calculated the amounts for iron ore fines and which components represented those amounts.
That the agency did not act upon unexplained information or read the data as Essar would have
preferred does not mean that the company failed to respond to the Department’s questions or that
Commerce determined that Essar failed to so respond. See Issues and Decision Memorandum at
38. The agency simply disregarded certain claimed adjustments to Essar’s purchases of iron ore
fines when the company failed to provide any basis for those adjustments, a decision well within
the agency’s discretion. See Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1039 (Fed. Cir.
1996) (explaining that Court grants “tremendous deference” to Commerce’s final countervailing
duty determinations due to technical and complex decisions involved); accord Thai Pineapple
Pub. Co., 187 F.3d at 1367.
Finally, the United States requests a voluntary remand to adjust the government price for
the following reasons: (1) to correct its admittedly erroneous freight calculations for Essar’s
Consol. Court No. 08-00239 Page 22
purchases of iron ore fines from the NMDC and (2) to account for slurry pipe transportation costs
to Vizag in those calculations. Def. Br. 38. The court considers the Government’s request for a
voluntary remand under the framework established in SKF USA Inc. v. United States, 254 F.3d
1022, 1027-30 (Fed. Cir. 2001). In that case, the Federal Circuit held that a voluntary remand “is
required, absent the most unusual circumstances verging on bad faith” when, inter alia, the
agency requests a remand “because it believes that its original decision is incorrect on the merits
and wishes to change the result.” Id. at 1030. The court discerns no evidence of bad faith on the
record and grants the Government’s request so that it may correct its freight calculations for
Essar’s purchases of iron ore fines from the NMDC.
B. The Department’s Conclusion That Essar Did Not Use Certain Countervailable
Programs
As previously explained, a subsidy occurs when a foreign government provides a
financial contribution to a specific industry and a recipient within the industry receives a benefit
as a result of that contribution. § 1677(5)(B). Commerce must demonstrate that the recipient
availed itself of the financial contribution in such a way that it used the government program at
issue and received a benefit thereunder. See id. To make the “benefit” finding, among others,
the Department solicits information from both the foreign government and the respondent
companies that are alleged to have received benefits from the programs. § 351.221(b). U.S.
Steel and Nucor challenge (1) Commerce’s decision not to apply facts otherwise available or
adverse inferences because the Government of India and certain state government failed to
respond to the agency’s questionnaires, and (2) the Department’s conclusion that Essar did not
Consol. Court No. 08-00239 Page 23
use, and therefore benefit from, five certain programs within India. U.S. Steel Br. 8-28; Nucor
Br. 4-14. The court affirms in part and remands in part Commerce’s conclusions on these issues.
1. The Decision to Not Apply Facts Otherwise Available or Adverse Inferences
In the Final Results, Commerce applied adverse inferences to the “financial contribution”
and “specificity” elements of a countervailable subsidy because of the Indian national and state
governments’ failure to respond to the agency’s questionnaire. Issues and Decision
Memorandum at 5. However, the agency declined to apply facts otherwise available or adverse
inferences with respect to the third element – benefit. Id. at 5, 38-43. U.S. Steel and Nucor
argue that the refusal of the national and state governments of India to answer Commerce’s
questionnaire on the newly alleged subsidies is sufficient grounds for the application of facts
otherwise available or adverse inferences with respect to Essar’s use of and benefit from the five
newly alleged programs. U.S. Steel Br. 8-14; Nucor Br. 12-14. U.S. Steel avers that
Commerce’s regulations and publications emphasize that “a foreign government’s response [is]
critically important to the [agency’s] accurate investigation of countervailable subsidies and . . . a
respondent company bears a burden to ensure that such response is provided.” U.S. Steel Br. 10.
To allow otherwise, U.S. Steel and Nucor contend, would cause Commerce to “cede control over
the investigative process to the respondents.” U.S. Steel Br. 10. As a result, the domestic
interested parties claim that 19 U.S.C. § 1677e compels the Department to apply other available
facts or adverse inferences when a foreign government fails to respond to an agency
questionnaire.12 U.S. Steel Br. 10-14; Nucor Reply 13-15.
12
U.S. Steel also points to the Indian national and state governments’ refusal to answer
certain questionnaires in the sixth administrative review of the subject merchandise as proof that
Consol. Court No. 08-00239 Page 24
The Department acted in accordance with law and supported its decision not to apply
adverse inferences with substantial evidence. Commerce must apply facts otherwise available
when necessary information is not available on the record or if “an interested party or any other
person” commits one of the following acts: (1) withholds information that has been requested by
the agency; (2) fails to provide timely information, subject to certain conditions; (3) significantly
impedes an administrative proceeding; or (4) provides unverifiable information. § 1677e(a).
Contrary to Nucor’s claim, Commerce’s actions comported with these requirements, as the
agency used information otherwise available – i.e., the data submitted by Essar on its use of and
benefit from the five programs – after the Indian national and state governments failed to respond
to the agency’s questionnaires. Issues and Decision Memorandum at 41-43. Only when the
Department finds that an interested party failed to cooperate by not “acting to the best of its
ability” to comply with the agency’s request for information may Commerce use adverse
inferences. § 1677e(b). This provision does not contain clear, unambiguous language that
compels the Department to automatically apply adverse inferences whenever a foreign
government fails to respond to an agency questionnaire, id., and therefore U.S. Steel and Nucor’s
argument must fail. Moreover, Commerce reasoned that its decision to use Essar’s submitted
information was appropriate under the facts of the case, given that the agency does not apply
adverse inferences when a respondent “can establish non-use of a program as a factual matter,
without an accompanying or complete government response.” Issues and Decision
the Department should apply adverse inferences in this review. This argument is unpersuasive
for reasons previously explained. See Peer Bearing Co.-Changshan, 32 CIT at ___, 587 F.
Supp. 2d at 1325.
Consol. Court No. 08-00239 Page 25
Memorandum at 42 (citation omitted). The Department found that Essar’s responses adequately
established non-use. Issues and Decision Memorandum at 43-49. This rational justification
prevents the court from disturbing this lawful decision. See Motor Vehicle Mfrs. Ass’n of the
U.S., Inc., 463 U.S. at 43.
2. The Special Economic Zone Act of 2005 & the State of Gujarat Special Economic
Zone Act
In the proceeding below, Commerce determined that Essar did not use either the Special
Economic Zone Act of 2005 or the State of Gujarat Special Economic Zone Act during the
period of review.13 Issues and Decision Memorandum at 44-46. The Department concluded that
Essar did not use the former, because (1) Essar reported, and Commerce countervailed, all of the
licenses that the company received under another program, the Export Promotion of Capital
Goods Scheme (“EPCGS”), covering duty free imports of capital goods used in the special
economic zone during the period of review; (2) Essar asserted in its questionnaire that it was in
13
The benefits provided by the Special Economic Zone Act of 2005 include (1) the duty
free import of goods and services for the development, operation, and maintenance of special
economic zone units; (2) an exemption from excise duties on goods brought from the Domestic
Tariff Area of India (i.e., the whole of India, excluding special economic zones) for use by an
enterprise in the special economic zone; (3) drawback on goods brought or services provided
from the Domestic Tariff Area into a special economic zone, or services provided in a special
economic zone by service providers located outside of India; (4) a full exemption from income
taxes on export income for the first five years of operation; (5) an exemption from the Central
Sales Tax; and (6) an exemption from the National Service Tax. Issues and Decision
Memorandum at 28-29. The State of Gujarat Special Economic Zone Act provides exemptions
from (1) stamp duty and registration fees for land transfers, loan agreements, credit deeds, and
mortgages; (2) sales taxes, purchase taxes, and other taxes payable on sales and transactions; and
(3) sales and other state taxes on purchases of inputs (both goods and services) for the special
economic zone or a unit within that zone. Id. at 31.
Consol. Court No. 08-00239 Page 26
the process of building facilities in the special economic zone and that it exported no
merchandise from the special economic zone during the period of review; and (3) Essar’s
financial statement explained that the company qualified for benefits under the program in
January 2007 subject to certain conditions which were met in March 2007, dates falling outside
of the period of review. See id. at 44-45. With respect to the State of Gujarat Special Economic
Zone Act, Commerce found that Essar (1) was not eligible to receive benefits because the
legislation “only became operational” during the period of review, id. at 45, and (2) the
company’s facility located inside the special economic zone was not approved under the program
until after the review period. Id. at 46. U.S. Steel and Nucor challenge several aspects of
Commerce’s conclusions that Essar did not enjoy benefits under either program.
a. The Special Economic Zone Act of 2005
First, Nucor alleges that Essar was approved for the Special Economic Zone Act of 2005
on September 28, 2006, and U.S. Steel avers that Essar’s financial statements indicate that the
company was eligible for benefits during the period of review. Nucor Br. 5-6; U.S. Steel Br. 17.
A company is eligible to receive benefits under the Act only after it is notified of its eligibility by
the Government of India. Pub. Doc. 48 at 3. Notification to the company signifies that the
enterprise has met all terms and conditions set forth by the Government of India in (1) a “Letter
of Approval” issued to the company by the foreign government prior to notification and (2) the
Act and its implementing regulation. Pub. Doc. 48 at 3. Essar’s financial statement clearly
establishes that the company did not qualify for benefits under the program until March 21, 2007,
upon its fulfillment of certain conditions. Pub. Doc. 100 Ex. 1 at 44 n.32, 83 n.22. On October
Consol. Court No. 08-00239 Page 27
3, 2006, Essar requested a Letter of Approval for setting up a unit in the special economic zone,
and the company was notified of conditional approval on January 11, 2007, with full
authorization coming in March of the same year. Pub. Doc. 100 Ex. 1 at 44 n.32, 83 n.22.
Therefore, prior to the Government of India’s notice dated March 21, 2007, Essar could not have
received a benefit under the Act. That the company submitted a notice of “setting up” on
September 28, 2006, and “commenced operations” on October 27, 2006, Pub. Doc. 100 Ex. 1 at
44 n.32, 83 n.22, does not establish a fortiori that Essar was approved for and receiving benefits
under the Act. Because the record makes clear that Essar was not eligible to receive benefits
under the Act during the period of review, U.S. Steel’s other arguments on the issue of use, U.S.
Steel Br. 17-18, also fail.
Second, U.S. Steel argues that the EPCGS covers only imports of capital goods and not
other goods and services covered by the Act. U.S. Steel Br. 15-16. U.S. Steel and Nucor cite to
Essar’s financial statement to contend that Essar received 1,613,500,000 rupees in duty
exemptions under the Act during the period of review. U.S. Steel Br. 18; Nucor Br. 5-6. The
record establishes that Essar did not use the first two parts of the Act, which concern the duty
free import of goods and services into the special economic zone. Commerce found that the
EPCGS, a separate program that the Department also examined in this administrative review,
accounted for the duty free entry of capital goods imported into the special economic zone.
Issues and Decision Memorandum at 44; Pub. Doc. 138 at 2. Commerce also determined that
Essar did not receive a benefit in its consumption of non-capital goods under the Act based on
the company’s statement that it did not “use[] any excise exemption on [the] domestic
Consol. Court No. 08-00239 Page 28
procurement of goods/raw materials or [a] duty exemption on imported raw materials,” Pub.
Doc. 138 at 4 (emphasis added), during the period of review. Issues and Decision Memorandum
at 44 (“Essar has supplied necessary information with respect to its non-use during the [period of
review] of other alleged subsidies offered under the [Act].”). Nothing in the record establishes
that Essar’s deposit of 1,613,500,00 rupees against custom duties was for the company’s
importation of non-capital goods during the period of review. Pub. Doc. 100 Ex. 1 at 44 n.32, 83
n.22. Moreover, the payment of these duties by Essar to the Government of India renders moot
the claim that the company received a benefit.14 Finally, U.S. Steel and Nucor fail to point to any
evidence on the record that demonstrates that Essar consumed services, let alone received a
benefit under the Act on the consumption thereof, during the period of review. Commerce
properly determined that Essar did not use this program.
b. The State of Gujarat Special Economic Zone Act
The receipt of benefits under the State of Gujarat Special Economic Zone Act is
contingent on the establishment of a special economic zone approved by the Government of India
under the Special Economic Zone Act of 2005. Pub. Doc. 48 at 14. The record supports the
agency’s conclusion that Essar’s unit under the Special Economic Zone Act of 2005 was not
approved by the Government of India until after the period of review in March 2007, Pub. Doc.
100 Ex. 1 at 44 n.32, 83 n.22, and the Department therefore reasonably found that Essar did not
use the program during the period of review. Finally, U.S. Steel and Nucor’s remaining claim –
14
Importantly, the Government acknowledges that “[i]f the duties are refunded at some
point in the future, Commerce will be able to examine this possible subsidy in a subsequent
administrative review.” Def. Br. 18.
Consol. Court No. 08-00239 Page 29
that Essar’s statement that the State of Gujarat Special Economic Zone Act “only became
operational” during the period of review does not support a finding of non-use of the program –
lacks merit. U.S. Steel Br. 19-20; Nucor Br. 7. Even assuming that the legislation from the State
of Gujarat had legal effect during the period of review, that fact does not overcome the absence
of evidence in the record showing that Essar was eligible to receive benefits under the Special
Economic Zone Act of 2005 during the period of review. If Essar was not eligible under the
Special Economic Zone Act of 2005, it could not have received benefits under the State of
Gujarat program. Pub. Doc. 48 at 14. Commerce properly determined that Essar did not use this
program.
3. The State of Gujarat Captive Ports Program
In the Final Results, the Department found that Essar did not use the Captive Ports
Program established by the State of Gujarat.15 Commerce based its decision on Essar’s response
to the agency’s questionnaire on the five new programs, wherein the company stated that (1) it
did not receive rebates on wharfage fees and had paid all of the appropriate fees, and (2) its
Memorandum of Understanding with the Gujarat Maritime Board to be relieved of a portion of
such fees did not yet have effect. Issues and Decision Memorandum at 46-47. U.S. Steel and
Nucor attack the Department’s determination that Essar did not receive rebates on wharfage fees,
focusing their challenge on two other documents submitted by Essar that suggest otherwise. U.S.
Steel Br. 21-23; Nucor Br. 8-10. The domestic producers’ argument fails. The Court will uphold
15
The Captive Ports Program promotes the construction of port facilities in the State of
Gujarat by (1) offering discounts on state wharfage charges and (2) extending credit for the cost
of the capital (including interest) to construct port facilities. Issues and Decision Memorandum
at 31.
Consol. Court No. 08-00239 Page 30
a determination supported with substantial evidence even if two inconsistent conclusions may be
drawn from evidence on the record. Thai Pineapple Pub. Co., 187 F.3d at 1365; Novosteel SA,
25 CIT at 12, 128 F. Supp. 2d at 730. U.S. Steel and Nucor’s argument that other documentary
evidence shows Essar received rebates does not undermine Commerce’s conclusion based on
Essar’s statements. In the relevant document, Essar explained that it has “paid the entire
wharfage amount[s]” to the Gujarat Maritime Board since 2000, Pub. Doc. 138 at 6, and that the
Memorandum of Understanding between the company and the State of Gujarat was not yet
implemented during the period of review. Pub. Doc. 138 at 7. In basing its decision on these
statements, the Department drew a rational connection between the record and its conclusion.
Therefore, the Department correctly found that Essar did not use this program.
4. The State of Andhra Pradesh Industrial Policy
Commerce reasoned in the Final Results that Essar did not use the State of Andhra
Pradesh Industrial Policy because the company’s facility was located in an area of the state that
did not qualify for benefits under the program.16 Issues and Decision Memorandum at 47-48.
16
The State of Andhra Pradesh maintains an industrial policy under which it provides
certain benefits that include: (1) a 25% reimbursement on the cost of land in industrial estates
and development areas; (2) a reimbursement of power at an established rate from April 2005
through March 2006, and continuing for four years thereafter; (3) a 50% subsidy for expenses
incurred for quality certification; (4) a 25% subsidy on “cleaner production measures”; (5) a 50%
subsidy on expenses incurred in plant registration; (6) a 100% reimbursement on stamp and
transfer duties paid for the purchase of land and buildings, and in obtaining financial deeds and
mortgages; (7) a grant of 25% of a certain tax paid, which is applied as a credit against the same
tax owed the following year, for a period of five years from the date production commenced; (8)
an exemption from the Non-Agricultural Land Assessment (“NALA”); (9) a provision of
infrastructure for an industry located more than 10km from existing industrial estates or
development areas; and (10) guaranteed stable prices of municipal water for three years for
industrial use and a reservation of 10% of water for industrial use for existing and future projects.
Issues and Decision Memorandum at 29-30.
Consol. Court No. 08-00239 Page 31
The Department relied on a document submitted by Essar which indicated that the company’s
facility was located “in the municipal corporation limits of” Visakapatnam, Pub. Doc. 138 at 9,
and that “benefits are not available to facilities established in” Visakapatnam. Pub. Doc. 138 at
8. The Department’s reliance on those statements established a rational connection between the
record and the conclusion the agency reached.
Similarly, no record evidence supports U.S. Steel and Nucor’s claim that Essar received a
benefit under this program as a result of a slurry pipeline located in the state. U.S. Steel and
Nucor contend that the Department did not address their arguments about a slurry pipeline partly
located in Andhra Pradesh that stretches over 267 kilometers and connects Essar’s Visakapatnam
plant to another company facility in Chattisgarh. Pub. Doc. 196 Ex. 1 at 1. The domestic
interested parties claim that Essar received a benefit because of this slurry pipeline. U.S. Steel
Br. 24; Nucor Br. 10-11. Even assuming the pipeline existed in a benefit-eligible region of
Andhra Pradesh, U.S. Steel and Nucor cite to no evidence that shows that Essar actually received
a benefit during the period of review as a result of the pipe. Existence of the slurry pipeline does
not alone prove that the company received a benefit under the program, an element that must be
proved for Commerce to impose a countervailing duty on subject merchandise produced by a
foreign company. § 1677(5)(B). Therefore, Commerce properly determined that Essar did not
use the program.
U.S. Steel and Nucor also point to Essar’s statements regarding the (1) stamp and transfer
duty reimbursements and (2) NALA exemptions as evidence that the company received
countervailable subsidies under the program. U.S. Steel Br. 23-24; Nucor Br. 10-11. With
Consol. Court No. 08-00239 Page 32
respect to NALA, Essar states that it paid the assessment, Pub. Doc. 138 at 11, and the
Department rationally relied on those statements in reaching its conclusion that Essar did not use
the program. However, on the issue of stamp and transfer duty reimbursements, the Government
acknowledges, but does not admit, that Essar’s response suggests use of the program and asks for
a voluntary remand since it did not address this matter in the Final Results. Def. Br. 24; see Pub.
Doc. 138 at 10. The Federal Circuit has held that the Court may grant a request for voluntary
remand when Commerce states that it wishes to reconsider its previous position without
admitting error. See SKF USA Inc., 254 F.3d at 1029. Because the Court affords deference to
Commerce’s expertise in the countervailing duty arena, see Fujitsu Gen. Ltd., 88 F.3d at 1039,
especially when the agency has yet to analyze the data on a particular issue, the Government’s
request is granted so that Commerce may determine whether Essar received stamp and transfer
duty reimbursements under the Industrial Policy of the State of Andhra Pradesh.
5. The State of Chhattisgarh Industrial Policy
The Department determined in the Final Results that Essar had not yet acquired the land
on which to build a new facility and, thus, the company could not have used the State of
Chhattisgarh Industrial Policy during the period of review.17 Issues and Decision Memorandum
17
The Industrial Policy of the State of Chhattisgarh provides subsidies to companies
operating in certain areas of that state, including: (1) a direct subsidy ranging from 35% of the
total capital costs of a project, up to a maximum amount equivalent to the sum of commercial
and central sales taxes paid during a seven year period; (2) a direct subsidy of 40% of the total
interest paid over five years on loans and working capital for upgrades in technology; (3) the
reimbursement of 50% of expenses incurred for quality certification; (4) the reimbursement of
50% of expenses for obtaining patents; (5) a total exemption from electricity duties for a period
of 15 years from the date commercial production commenced; (6) an exemption from stamp
duties on deeds executed for the purchase or lease of land and buildings, as well as deeds relating
to loans and advances made by a company over a three year period beginning on the date of
Consol. Court No. 08-00239 Page 33
at 48-49. However, the United States requests a voluntary remand to consider whether Essar’s
iron ore benefication plant benefitted from the program, an analysis the Department did not
perform in the Final Results. Def. Br. 25. The court grants the Government’s request so that the
Department may consider the potential benefits conferred on Essar and its benefication plant by
the Industrial Policy of the State of Chhattisgarh during the period of review. See SKF USA Inc.,
254 F.3d at 1029; see also Fujitsu Gen. Ltd., 88 F.3d at 1039.
IV. Conclusion
For the foregoing reasons, the court SUSTAINS the Department’s calculation of the
benchmark prices for iron ore lumps and fines used in the price comparison to determine whether
the Government of India received less than adequate remuneration in its sales of those goods to
Essar. The court SUSTAINS the agency’s analysis of the government price used in that price
comparison, except as ordered below. The court SUSTAINS the Department’s decision not to
apply facts otherwise available or adverse inferences in its determination of whether Essar
benefitted from certain national and state programs in India. Finally, the court SUSTAINS
Commerce’s finding that Essar did not use certain national and state programs in India, except
that the Department must address on remand only the particular issues listed in this Order.
Accordingly, it is hereby
registration; (7) an exemption from the payment of “entry tax” for seven years (excluding any
entry tax payable on minerals obtained from mining within the state); (8) a 50% reduction in
services charges for the Chhattisgarh Industrial Development Corporation’s acquisition of private
land for a company; and (9) a discount of up to 100% on the allotment of land in certain
industrial areas. Issues and Decision Memorandum at 30.
Consol. Court No. 08-00239 Page 34
ORDERED that Plaintiff U.S. Steel’s Motion for Judgment Upon the Agency Record is
GRANTED in part and DENIED in part, that Plaintiff Essar’s Motion for Judgment Upon the
Agency Record is GRANTED in part and DENIED in part, that Plaintiff-Intervenor Nucor’s
Motion for Judgment Upon the Agency Record is GRANTED in part and DENIED in part, and
that the case is REMANDED to Commerce for further proceedings consistent with this opinion.
Specifically, it is
ORDERED that Commerce shall adjust the government price for iron ore lumps and
fines used in the price comparison to measure the adequacy of remuneration (1) to correct
erroneous freight calculations for Essar’s purchases of iron ore fines from the NMDC and (2) to
account for slurry pipe transportation costs to Vizag in those calculations; it is further
ORDERED that Commerce reevaluate whether there is substantial evidence in the record
that supports the deduction of the Central Sales Tax from the government price for iron ore
lumps and fines used in the price comparison to measure the adequacy of remuneration; it is
further
ORDERED that, with respect to the Industrial Policy of the State of Andhra Pradesh,
Commerce must determine only whether Essar received beneficial stamp and transfer duty
reimbursements under the program during the period of review; it is further
ORDERED that, with respect to the Industrial Policy of the State of Chhattisgarh,
Commerce must determine only whether Essar received benefits under this program during the
period of review as a result of its benefication plant; and it is further
Consol. Court No. 08-00239 Page 35
ORDERED that Commerce shall have until March 31, 2010, to file its remand results
with the Court. Plaintiffs and Plaintiff-Intervenor shall file their responses with the Court no
later than April 30, 2010. The court will not accept reply briefs from any party. In view of this
opinion, the previously scheduled oral argument of February 3, 2010 is hereby adjourned.
Dated: December 30, 2009 /s/ Judith M. Barzilay
New York, New York Judith M. Barzilay, Judge