Essar Steel Ltd. v. United States
2013 Ct. Intl. Trade LEXIS 49
Ct. Intl. Trade2013Background
- Essar challenged Commerce's countervailing duty rate for 2007 based on an adverse facts available (AFA) rate tied to CIP benefits.
- Court remanded to require corroboration of the AFA rate or explanation for lack of corroboration.
- Commerce on remand aggregated nine similar-program subsidy rates (tax, grants, LTAR) to form Essar's AFA rate totaling 54.68%.
- The nine rates derive from prior programs deemed similar to CIP programs, not direct data on Essar.
- Essar argued the methodology lacked corroboration and that the 54.68% rate did not reflect commercial reality, among other criticisms.
- Commerce found the AFA rate corroborated to the extent practicable given Essar and the Indian government did not cooperate during the review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce adequately corroborated the AFA rate. | Essar contends corroboration is insufficient and rate misaligned. | Commerce used similar programs due to lack of data and cooperation; corroboration practicable. | Yes; corroboration to the extent practicable satisfied. |
| 是否应使用先前程序的比对信息来确定AFA比率的相关性与可靠性 | Essar argues for better corroboration tied to CIP specifics. | Commerce reasonably used similar programs when CIP data unavailable. | Yes; reliance on similar programs deemed reliable and relevant. |
| Whether Essar waived certain remand arguments by failing to raise them timely. | Essar raised new points post-remand. | Court should deem such arguments waived for not exhausting administrative remedies. | Waived for arguments not raised during remand. |
| Whether the AFA rate is a reasonable proxy reflecting commercial reality given limited data. | Essar disputes rate as too punitive and not representative. | Rate is a reasonable approximation with built-in deterrence. | Court sustains Remand Results as reasonable. |
Key Cases Cited
- De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (corroboration requires grounded, probative secondary information)
- Gallant Ocean (Thailand) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (grounding in commercial reality; avoid punitive, uncorroborated margins)
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (substantial evidence standard; reasonableness of agency action)
- Timken Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004) (balancing accuracy of subsidy margin with compliance incentives)
- Consolo v. Federal Maritime Commission, 383 U.S. 607 (U.S. 1966) (substantial evidence and reasonableness principles underlie agency action)