2019 CIT 52
Ct. Intl. Trade2019Background
- Commerce found countervailable subsidies for hot-rolled steel flat products from Korea and applied adverse facts available (AFA) rates to POSCO in its Final Determination.
- Two prior calculated AFA rates were at issue: 1.64% (from a refrigerators proceeding) and 1.05% (from a washers proceeding).
- This Court in POSCO I remanded because Commerce had not adequately explained why it selected the highest calculated AFA rate, and reserved judgment on corroboration.
- On remand Commerce: (1) reaffirmed that POSCO failed to act to the best of its ability and that AFA was appropriate; (2) explained its practice of generally selecting the highest available calculated AFA rate absent unique contrary record facts; (3) abandoned the 1.64% rate and relied on only the 1.05% rate; and (4) corroborated the 1.05% rate as reliable and relevant.
- Commerce recalculated POSCO’s subsidy rate using the 1.05% AFA input and produced a 41.57% rate for POSCO.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce adequately explained selection of the highest calculated AFA rate | POSCO argued Commerce failed to comply with POSCO I’s requirement for reasoned explanation (but ultimately declined to press detailed objections on remand) | Commerce said it may default to the highest calculated rate within the statutory hierarchy unless record shows unique/unusual facts making it inappropriate; it re-explained application of AFA to POSCO | Court sustained Commerce’s selection; POSCO waived further challenge by failing to develop arguments and to exhaust administrative remedies on certain contentions |
| Whether Commerce properly corroborated the selected AFA rate | Nucor contested use of the revised 1.05% rate and its corroboration | Commerce argued it corroborated the 1.05% rate because it was a non-de minimis, actual calculated rate for a cooperating Korean company in a similar proceeding, satisfying probative-value requirements | Court sustained Commerce’s corroboration of the 1.05% rate as supported by substantial evidence |
Key Cases Cited
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (standard that AFA applies when respondent fails to act to the best of its ability)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 802 F.3d 1339 (Fed. Cir. 2015) (corroboration requires probative value: relevance and reliability)
- Boomerang Tube LLC v. United States, 856 F.3d 908 (Fed. Cir. 2017) (administrative exhaustion principles)
- Özdemir Boru San. ve Tic. Ltd. Sti. v. United States, 273 F. Supp. 3d 1225 (CIT 2017) (discussion of reliability/relevance in corroboration analysis)