CAFC Reverses CIT's Order for Inclusion of New Evidence in India CV Case

The Court of Appeals for the Federal Circuit reversed the Court of International Trade’s affirmance of the International Trade Administration’s remand redetermination, which the ITA completed under protest, of its final results of its 2007 administrative review of the countervailing duty order on certain hot-rolled carbon steel flat products from India (C-533-821). CAFC said the CIT improperly exceeded its authority by requiring the ITA to reopen and supplement the record to admit untimely filed documentation when the Indian respondent and plaintiff, Essar Steel Limited, did not cooperate to the best of its ability.

However, CAFC affirmed the CIT’s decisions that: (i) the ITA was correct in its choice of benchmarks for one subsidy program; and (ii) the ITA’s decision to “tie” the benefits under another program to Essar’s subject merchandise in light of the fact that Essar did not submit evidence disputing this finding.

(Arguing that it did not receive benefits from the Chhattisgarh Industrial Program (CIP), Essar initially denied having production facilities in the Indian State of Chhattisgarh. However, after contrary record evidence was produced and two months before the ITA’s final results, Essar said it had a facility in Chhattisgarh that was ineligible for benefits from the CIP. The ITA then determined that Essar had withheld information and applied Adverse Facts Available (AFA), concluding that Essar benefited from the CIP. Essar appealed the ITA’s determination, and placed documentation on the CIT’s record of the Indian government’s denial of benefits under the CIP to Essar. CIT remanded the issue to the ITA with instructions to reopen the record, add the new documentation, and consider it. The ITA then, under protest, determined that Essar did not receive benefits under the CIP based on the new documentation. CIT affirmed the ITA’s remand finding that Essar did not benefit from CIP subsidies, but the ITA appealed the CIT’s affirmance.)

CAFC Says CIT Exceeded Authority in Requiring ITA to Reopen Record

CAFC said Essar did not cooperate to the best of its ability, and as such, the ITA’s decision to apply AFA was supported by substantial evidence. Noting that, since the ITA lacks subpoena power, its ability to apply AFA is important in order to encourage compliance. The CAFC said the decision to reopen the record in this case is best left to the ITA. According to CAFC, CIT’s remand order usurped agency power, undermined the ITA’s ability to administer the statute entrusted to it, contradicted important principles of finality, and discouraged compliance with the ITA’s request.

Therefore, CAFC reversed the CIT’s decision with respect to the CIP Program.