Appeal from the United States Court of International Trade in No. 09-CV-0197, Senior Judge Judith M. Barzilay.
DANIEL MORRIS, Dentons U.S. LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief was MARK P. LUNN.
DAVID D'ALESSANDRIS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assistant Director. Of counsel on the brief was NATHANIEL HALVORSON, Attorney, International Trade, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, of Washington, DC.
NATHANIEL B. BOLIN, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, argued for defendant-appellee United States Steel Corporation. With him on the brief were ROBERT E. LIGHTHIZER and JEFFREY D. GERRISH. Of counsel were JAMES C. HECHT, of Washington, DC, and STEPHEN J. NARKIN, of Palo Alto, California.
Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.
Lourie, Circuit Judge
Essar Steel Ltd. (" Essar" ) appeals from the decision of the United States Court of International Trade (the " Trade Court" ) affirming the United States Department of Commerce's (" Commerce" ) corroboration of the adverse facts available (" AFA" ) rate from the fifth administrative review of the countervailing duty order covering certain hot-rolled carbon steel flat products from India. See Essar Steel Ltd. v. United States, 908 F.Supp.2d 1306 (Ct. Int'l Trade 2013). Because we agree with the Trade Court that Commerce corroborated the AFA rate to the extent practicable, we affirm.
Essar is an Indian steel manufacturer with a facility in the state of Chhattisgarh, India that imports hot-rolled carbon steel flat products into the United States. In 2008, Commerce initiated an investigation to assess whether Essar received countervailable subsidies for its iron ore products in India for the period of review from January 1, 2007 through December 31, 2007. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 73 Fed. Reg. 4829 (Jan. 28, 2008).
Commerce investigated Essar's receipt of benefits from nine separate subsidies provided under the Chhattisgarh Industrial Program (" CIP" ) administered by the state government of Chhattisgarh. Essar, 908 F.Supp.2d at 1310-11. In response to Commerce's requests for information on its use of and benefit from the CIP subsidies, Essar repeatedly denied receiving any CIP subsidies based on a claim that Essar did not have any manufacturing facilities in Chhattisgarh. Essar Steel Ltd. v. United States, 678 F.3d 1268, 1275 (Fed. Cir. 2012). Commerce found, however, that Essar's claims were contradicted by other information that Essar itself had placed on the record. Id. at 1274-79. During the fifth administrative review, the government of India and the state government of Chhattisgarh also failed to respond to Commerce's requests for information on the CIP subsidies. Essar, 908 F.Supp.2d at 1312.
Commerce therefore applied adverse facts in its May 2009 final results and concluded that Essar did benefit from the CIP. Essar, 678 F.3d at 1271. Essar appealed Commerce's final results to the Trade Court, and after numerous proceedings before the court and a remand back to Commerce, the United States government and United States Steel Corporation (" U.S. Steel" ) appealed Essar's use of and benefit from the CIP subsidies. Id. at 1271-72. We upheld Commerce's decision to apply AFA with respect to Essar's use of and benefit from the CIP subsidies,
noting " Essar's dishonest denials of a facility in Chhattisgarh." Id. at 1274-79. Essar then " contacted the [Trade Court] for guidance" with regard to corroboration of the AFA rate, which was an issue that was previously raised before the Trade Court but never resolved. Essar Steel Ltd. v. United States, 880 F.Supp.2d 1327, 1328-29 (Ct. Int'l Trade 2012). The Trade Court then remanded the case to Commerce with instructions to explain how it corroborated the AFA rate assigned to Essar for its participation in the CIP or why corroboration was not practicable. Id. at 1332.
Commerce filed its remand results explaining how it corroborated, to the extent practicable, the AFA rate assigned to Essar given that Essar, the state government of Chhattisgarh, and the government of India failed to cooperate during the fifth administrative review. Essar, 908 F.Supp.2d at 1309. Commerce explained that it applied a hierarchical methodology in selecting an AFA rate. Commerce first " sought to apply, where available, the highest, above de minimis [AFA] rate calculated for the identical program from any segment of the proceeding." J.A. 114. Then, absent ...