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JSW STEEL LTD. and JSW Steel Coated Products Ltd., Plaintiffs, v. UNITED STATES, Defendant, and AK Steel Corp.; Steel Dynamics, Inc.; California Steel Indus., Inc.; Arcelormittal USA LLC; and Nucor Corp., Defendant-Intervenors.

United States Court of International Trade2018-10-23No. Slip Op. 18-147; Court No. 16-00165
348 F. Supp. 3d 1319

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Opinion

majority opinion

Goldberg, Senior Judge:

Now before the court are the Final Results of Redetermination Pursuant to Court Remand, ECF No. 76 (Aug. 7, 2018) (Remand Results) of the Department of Commerce (the Department or Commerce) in the countervailing duty (CVD) investigation of certain corrosion-resistant steel products from India. Certain Corrosion-Resistant Steel Products from India , 81 Fed. Reg. 35,323 (Dept Commerce June 2, 2016) (final determ.), and accompanying Issues & Decision Mem. In compliance with the courts remand, JSW Steel Ltd. v. United States , 42 CIT ----, 315 F.Supp.3d 1379 (2018) ( JSW Steel I ), the Department has recalculated the CVD rate for JSW Steel Ltd. and JSW Steel Coated Product Ltd. (collectively JSW) as 4.24 percent. Remand Results at 18. Because Commerce has now supported its determination with substantial evidence, the court sustains the Remand Results.

For the purposes of this opinion, familiarity with the facts is presumed. See JSW Steel I , 42 CIT at ----, 315 F.Supp.3d at 1380-81. The courts prior order faulted Commerce for applying adverse facts available (AFA) under 19 U.S.C. § 1677e(b)without substantial evidence to support the required threshold finding that there was a gap in the record warranting the use of facts available under § 1677e(a). Id. , 42 CIT at ----, 315 F.Supp.3d at 1382. That is, Commerce [ ] failed to show that it requested information concerning [JSW affiliate, JSW Steel (Salav) Ltd. (Salav) ] that was then withheld by JSW such that its application of AFA was unwarranted. Id. As a result, the court remanded the proceedings to Commerce.

In an attempt to satisfy the courts remand order, Commerce has reversed its decision to apply a punitive AFA rate and has reduced JSWs rate to 4.24 percent. Remand Results at 18. For its part, JSW asks that the court sustain Commerces recalculated margin. See Pl.s Comments on Final Results of Redetermination Pursuant to Ct. Remand, ECF No. 80 (Sept. 4, 2018).

The courts review is limited to confirming that Commerce has complied with the courts remand order and has done so in a manner that is supported by substantial evidence and in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i) ; Ad Hoc Shrimp Trade Action Comm. v. United States , 38 CIT ----, ----, 992 F.Supp.2d 1285, 1290 (2014). As Commerce [has] recalculate[d] JSWs CVD rate without regard to Salav or any subsidies Salav may have received, JSW Steel I , 42 CIT at ----, 315 F.Supp.3d 1379 at 1384, the court finds that the Final Results do indeed comply with the remand order. Notwithstanding Commerces views to the contrary, see generally Remand Results, the fact remains that the Department never requested the information upon which it previously sought to apply AFA. See JSW Steel I , 42 CIT at ----, 315 F.Supp.3d at 1382. Due to the Departments abandonment of the AFA rate-and for the reasons stated in the courts prior opinion-Commerces determination is supported by substantial evidence and in accordance with law.

Accordingly, Commerces Remand Results are SUSTAINED and judgment is entered.

Commerce now mischaracterizes the courts prior remand as predicated on a misunderstanding as to the operation of the Departments subsidy attribution practice. Remand Results at 8. However, the courts prior opinion expressed dissatisfaction not with Commerces practices but with the Departments questionnaire. See JSW Steel I , 42 CIT at ----, 315 F.Supp.3d at 1383-84. Discussion of Commerces practices surrounding the treatment of certain information is of no moment as long as the Department did not actually request that information .