E5-3868. Certain Iron Metal Castings from India: Notice of Court Decision and Suspension of Liquidation

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 16, 2005, in Kiswok Industries Pvt. Ltd. and Calcutta Ferrous Ltd. v. United States, Slip Op. 05-73, the Court of International Trade (CIT) affirmed the Department of Commerce (the Department) Final Results of Redetermination on Remand dated July 9, 2004. Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department will continue to order the suspension of liquidation of the subject merchandise, where appropriate, until there is a “conclusive” decision in this case. If the case is not appealed, or if it is affirmed on appeal, the Department will instruct U.S. Customs and Border Protection (CBP) to liquidate all relevant entries from Calcutta Ferrous Ltd.

EFFECTIVE DATE:

July 20, 2005.

FOR FURTHER INFORMATION CONTACT:

Robert Copyak at [phone], AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, Room 4012, 14th Street and Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

Following publication of Certain Iron-Metal Castings from India: Final Results of Countervailing Duty Administrative Review, 65 FR 31515 (May 18, 2000) (Final Results), Calcutta Ferrous Ltd. and Kiswok Industries Pvt. Ltd. (collectively respondents) challenged the Department's Final Results before the CIT.

In the underlying administrative review, Calcutta Ferrous Ltd. argued that “in calculating the benefits received by castings exporters from export loans, Commerce failed to take into account penalty interest paid at interest rates higher than the benchmark.” See Comment 7 of the May 18, 2000, Issues and Decision Memorandum that accompanied the Final Results. In Kiswok Industries Pvt. Ltd. and Calcutta Ferrous Ltd. v. United States, Slip Op. 04-54 (CIT May 20, 2004) (Kiswok v. United States), the Court concurred with Calcutta Ferrous Ltd.'s position. In Kiswok v. United States, the Court also disagreed with the Department's position in the Final Results that overdue parts of a loan become a new loan with a new applicable interest rate.

In light of the Court's instructions in Kiswok v. United States, the Department, in its redetermination, recalculated the benefit Calcutta Ferrous Ltd. realized from its preferential loan(s), taking into account all of the interest paid thereon. See Final Results of Redetermination on Remand Pursuant to Kiswok Industries Pvt. Ltd. v. United States, Slip Op. 04-54 (CIT May 20, 2004) (Remand Determination). No party submitted comments regarding the Department's Remand Determination.

On June 16, 2005, the CIT affirmed the Department's findings in the Remand Determination. See Kiswok Industries Pvt. Ltd. and Calcutta Ferrous Ltd. v. United States, Slip Op. 05-73 (CIT June 16, 2005).

Suspension of Liquidation

The CAFC, in Timken, held that the Department must publish notice of a decision of the CIT or the CAFC which is not “in harmony” with the Department's final determination or results. Publication of this notice fulfills that obligation. The CAFC also held that the Department must suspend liquidation of the subject merchandise until there is a “conclusive” decision in the case. Therefore, pursuant to Timken, the Department must continue to suspend liquidation pending the expiration of the period to appeal the CIT's June 16, 2005, decision or, if that decision is appealed, pending a final decision by the CAFC. The Department will publish an amended final results and liquidate relevant entries covering the subject merchandise, in the event that the CIT's ruling is not appealed, or if it is appealed and upheld by the CAFC.

Dated: July 13, 2005.

Susan H. Kuhbach,

Acting Assistant Secretary for Import Administration.