CIT Says ITA Must Also Corroborate AFA Rates in CV Proceedings
Adverse facts available (AFA) countervailing duty rates must be corroborated just as is the case with AFA antidumping duty rates, said the Court of International Trade, as it remanded the final results of the 2007 administrative review of certain hot-rolled carbon steel flat products from India (C-533-821). CIT took up the issue after a Court of Appeals for the Federal Circuit ruling in April overturned a CIT remand of an AFA rate applied to a subsidy benefit received by Essar Steel. CAFC said the ITA’s decision to apply an AFA rate was supported by substantial evidence, but the court did not rule on whether the ITA’s AFA rate was reasonable.
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According to CIT, the ITA explained its methodology for the AFA rate selected for Essar, but did not tie the rate to Essar’s real world circumstances. But while CIT has “for over a decade” applied to AD proceedings the DeCecco standard of a “reasonably accurate estimate of the respondent’s actual dumping rate with some built-in increase to deter non-compliance,” it hasn’t applied the standard to CV proceedings, it said. In its ruling, CIT said the DeCecco standard “would seem to apply in the CVD context as well,” and so ordered the ITA to address the issue of corroboration of Essar’s AFA CV rate. Alternatively, CIT said, the ITA may explain why DeCecco does not apply to CV cases and therefore why it doesn’t need to corroborate AFA CV rates.
(See ITT’s Online Archives 12050112 for summary of CAFC’s reversal of CIT.)
(Essar Steel Ltd. v. United States, Slip Op. 12-132, dated 10/15/12, Judge Barzilay)
(Attorneys: Mark Lunn of Arent Fox for plaintiff Essar; Stuart Delery for defendant U.S. government; Robert Lighthizer of Skadden Arps for defendant-intervenor U.S. Steel.)