2010-24312. Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Court Decision Not in Harmony with Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 13, 2010, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) results of redetermination pursuant to the CIT's remand in United States Steel Corporation, et al. v. United States et al. and Essar Steel Limited v. United States et al., Slip Op. 09-152, Remand Order (December 30, 2009)(Essar). See Final Results of Redetermination Pursuant to Court Remand, dated July 15, 2010 (found at http://ia.ita.doc.gov/​remands);​; and United States Steel Corporation, et al. v. United States et al. and Essar Steel Limited v. United States et al., Slip Op. 10-104 (September 13, 2010) (Essar). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's final results of the administrative review of the countervailing duty order on certain hot-rolled carbon steel flat products (HRCS) from India covering the period of review (POR) of January 1, 2006, through December 31, 2006. See Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results of Countervailing Duty Administrative Review, 73 FR 40295 (July 14, 2008) (Final Results), and accompanying Issues and Decision Memorandum (I&D Memorandum).

EFFECTIVE DATE:

September 28, 2010.

FOR FURTHER INFORMATION CONTACT:

Gayle Longest, AD/CVD Operations, Office 3, Import Administration International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 14, 2008, the Department published its final results in the countervailing duty administrative review of HRCS from India covering the POR of January 1, 2006, through December 31, 2006. See Final Results. In the Final Results, the Department did not include central sales taxes paid on domestic purchases of iron ore lumps and for high-grade iron ore fines because we did not have information on import duties and other taxes and fees payable on imports of iron ore to be included in the calculation of the benchmark. See I&D Memorandum at “Sale of High-Grade Iron Ore for Less Than Adequate Remuneration” section and Comment 4. In Essar, the CIT determined that the Department's Final Results were not supported by substantial evidence on the record, and it remanded to the Department the issue of the deduction of Central Sales Tax from the government price in order for the Department to reevaluate the record evidence supporting this decision.

Moreover, subsequent to the Final Results, we discovered that the transportation and delivery charges (i.e., all transportation and handling costs, duties and fees) for iron ore lumps and fines from Vizag port to Hazira port had not been included in either the iron ore lumps or fines calculations. Therefore, the we asked the court for a voluntary remand to adjust Essar's delivered purchase price for fines from NMDC to include missing delivery charges. In Essar, the CIT granted the Department's request for a voluntary remand to correct the freight calculations for Essar's purchases of iron ore fines from the National Mineral Development Corporation (NMDC). Specifically, the CIT ordered the Department to adjust the government price for iron ore lumps and fines used in the price comparison to measure the adequacy of remuneration (1) to correct freight calculations for Essar's purchases of iron ore fines from the NMDC and (2) to account for slurry pipe transporation cost to Vizag.

On July 15, 2010, the Department issued its final results of redetermination pursuant to Essar. The remand redetermination explained that, in accordance with the CIT's instructions, the Department has made redeterminations with respect to the calculation of the government price for iron ore lumps and fines as well as Essar's purchases of lumps and fines for the following three issues. First, we adjusted our iron ore calculations to measure the adequacy of remuneration of sales of lumps and fines by the GOI to Essar to include Central Sales Tax for Essar's purchase of iron ore lumps and high-grade iron ore fines from the NMDC and to include import duties payable on iron ore with regard to the corresponding benchmark prices. Second, we corrected the government price for iron ore lumps and fines to address erroneous freight calculations for Essar's purchases of iron ore from NMDC. Third, for fines purchases from NMDC made on or after the date the slurry pipeline became operational, we have replaced the per metric ton (MT) rail cost with the per MT slurry transportation costs. The Department's redetermination resulted in changes to the Final Results for Essar's net subsidy rate concerning the sale of iron ore for less than adequate remuneration program from 13.21 percent to 19.35 percent. Therefore, the Department's redetermination resulted in the total net countervailable subsidy rate received by Essar in the Final Results changing from 17.50 percent to 23.64 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's decision in Essar on September 13, 2010, constitutes a final decision of that court that is not in harmony with the Department's Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will issue an amended final results consistent with these redeterminations and instruct U.S. Customs and Border Protection to assess countervailing duties on entries of the subject merchandise during the POR from Essar based on the revised assessment rates calculated by the Department.

This notice is issued and published in accordance with section 516A(e)(1) of the Tariff Act of 1930, as amended.

Dated: September 22, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.