                                                 Slip Op. 11-10

                   UNITED STATES COURT OF INTERNATIONAL TRADE

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                                                      :
ESSAR STEEL LIMITED,                                  :
                                                      :
                  Plaintiff,                          :
                                                      :
                  v.                                  :           Before: Judith M. Barzilay, Judge
                                                      :           Court No. 09-00197
UNITED STATES,                                        :
                                                      :
                  Defendant,                          :
                                                      :
                  and                                 :
                                                      :
UNITED STATES STEEL                                   :
CORPORATION,                                          :
                                                      :
                  Defendant-Intervenor.               :
                                                      :
------------------------------------------------------x

                                                   OPINION

[The court sustains the U.S. Department of Commerce’s Final Results of Redetermination.]

Arent Fox LLP (Mark P. Lunn, Kay C. Georgi and Diana Dimitriuc Quaia), for Plaintiff Essar
Steel Limited.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy,
Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice
(David D'Alessandris), for Defendant United States; Deborah R. King, Office of the Chief
Counsel for Import Administration, U.S. Department of Commerce, Of Counsel, for Defendant.

Skadden Arps Slate Meagher & Flom, LLP (Robert E. Lighthizer, Jeffrey D. Gerrish and
Nathaniel B. Bolin), for Defendant-Intervenor United States Steel Corporation.

                                                                             Dated: January 25, 2011

         Barzilay, Judge: This matter returns to the court following the remand of the U.S.

Department of Commerce’s (“Commerce”) final results of the fifth administrative review of the
Court No. 09-00197                                                                        Page 2
countervailing duty order on certain hot-rolled carbon steel flat products from India. See Essar

Steel Ltd. v. United States, 34 CIT __, 721 F. Supp. 2d 1285 (2010) (“Essar I”); Certain Hot-

Rolled Carbon Steel Flat Products from India, 74 Fed. Reg. 20,923 (Dep’t of Commerce May 6,

2009) (final admin. review). In relevant part, the court’s previous opinion questioned

Commerce’s determination that Plaintiff Essar Steel Limited (“Plaintiff”) benefitted from the

Chhattisgarh Industrial Policy (“the Policy”) during the period of review, January 1, 2007 to

December 31, 2007. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1300-01. Specifically, the court

could not discern how Commerce reconciled its finding in the fourth administrative review that

Plaintiff could not benefit from the Policy from 2004 through 2009 with its application in this

administrative review of an adverse facts available 54.69 per cent ad valorem rate against

Plaintiff for benefits allegedly received from the same program. Id. Consequently, the court

ordered Commerce to reopen and place on the administrative record documents from the

previous administrative review, Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9 (“the

Documents”), and to consider them in its reassessment of whether Plaintiff benefitted from the

Policy. Essar I, 34 CIT at __, 721 F. Supp. 2d at 1301. In its remand determination, Commerce

found that Plaintiff did not benefit from the Policy. Redetermination Pursuant to Court Remand,

C-533-821, at 5 (Dep’t of Commerce Oct. 28, 2010) (final results) (“Redetermination”). The

court sustains the Redetermination for the reasons below.

                                     I. Standard of Review

      The Court will hold as unlawful any Commerce determination “unsupported by substantial

evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
Court No. 09-00197                                                                             Page 3
                                           II. Discussion

       Defendant-Intervenor United States Steel Corporation (“U.S. Steel”) now challenges

Commerce’s determination that Plaintiff did not benefit from the Policy on two grounds. U.S.

Steel first claims that the Documents underscore the need for Commerce to apply adverse facts

available because they show that Plaintiff did not act to the best of its ability during the

administrative review. Def.-Intervenor Br. 3-7. This contention lacks merit. The Documents,

provided by the State Government of Chhattisgarh, verify that Plaintiff did not benefit from the

Policy during the period of review because Plaintiff was not eligible to receive benefits from

2004 through 2009. See Redetermination at 4; Admin. R. Conf. Doc. 1229 Ex. 4 and 1193 Ex. 9.

Commerce therefore reasonably supported its finding that Plaintiff did not benefit from the

Policy with substantial evidence.

       Second, U.S. Steel insists that the court should not have ordered Commerce to consider

the documents on remand. Def.-Intervenor Br. 7-9. Although U.S. Steel could have raised this

contention in a motion for reconsideration within 30 days of the filing of Essar I, see USCIT R.

59(b), that time has passed, and the issue is not properly before the court. See Former Emps. of

Quality Fabricating, Inc. v. United States, 28 CIT 1061, 1070, 353 F. Supp. 2d 1284, 1292

(2003) (“Pursuant to the law of the case doctrine, when a court decides upon a rule of law, that

decision continues to govern the same issues in subsequent phases of the case . . . . If Defendant

had wished to challenge that finding, a motion for reconsideration would have been the

appropriate motion.”) (citing Arizona v. California, 460 U.S. 605, 618 (1983) (internal citation

omitted)). The court nevertheless wishes to reiterate that in Essar I, the court found that the stark

contrast between Commerce’s finding in the fourth administrative review that Plaintiff could not
Court No. 09-00197                                                                        Page 4
have benefitted from the Policy between 2004 and 2009 and its assessment of a 54.69 per cent ad

valorem duty for benefits received from the same program during the fifth administrative review

constituted an exceptional case that warranted the reopening of the administrative record. Essar

I, 34 CIT at __, 721 F. Supp. 2d at 1300-01; see Home Prods. Int’l, Inc. v. United States, 33 CIT

__, __, 675 F. Supp. 2d 1192, 1199 (2009). As the Federal Circuit has held, “Congress’ desire

for speedy determinations . . . should not be interpreted as authorizing proceedings that are based

on inaccurate data,” and when new facts emerge “between the date of an agency . . . decision and

the date of decision on appeal,” a court may properly rely upon those new facts and direct the

agency to consider them upon remand. Borlem S.A.-Empreedimentos Industriais v. United

States, 913 F.2d 933, 937, 939 (Fed. Cir. 1990) (citation omitted); see Anshan Iron & Steel Co. v.

United States, 28 CIT 1728, 1736-37, 358 F. Supp. 2d 1236, 1243 (2004). See genearlly Borlem

S.A.-Empreedimentos Industriais, 913 F.2d at 937-41.

                                         IV. Conclusion

       For the foregoing reasons, it is hereby

                ORDERED that Commerce’s determination that Plaintiff did not benefit from the

Chhattisgarh Industrial Policy is SUSTAINED; and it is further

                ORDERED that Commerce’s Redetermination is SUSTAINED.



       Dated:     January 25, 2011                           /s/ Judith M. Barzilay
                New York, New York                           Judith M. Barzilay, Judge
