2011-3117. Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results of Administrative Review Pursuant to Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On January 25, 2011, 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 Essar Steel Limited v. United States, 721 F. Supp. 2d 1285 (CIT 2010) (“Essar I”). See Essar Steel Limited v. United States, Slip Op. 11-10, Court No. 09-197 (January 25, 2011) (“Essar II”); see also Final Results of Redetermination Pursuant to Court Remand, dated October 28, 2010 (“Remand Redetermination”) (found at http://ia.ita.doc.gov/​remands). 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”) as clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (CAFC 2010) (“Diamond Sawblades”), the Department is notifying the public that the final CIT judgment in this case is not in harmony with the Department's final determination and is amending the final results of the administrative review of the countervailing duty order on certain hot-rolled carbon steel flat products (“HRCS”) from India covering the January 1, 2007, through December 31, 2007, period of review (“POR”). See Certain Hot-Rolled Carbon Steel Flat Products from India: Final Results and Partial Rescission of Countervailing Duty Administrative Review, 74 FR 20923 (May 6, 2009) (“Final Results”), and accompanying Issues and Decision Memorandum (“I&D Memorandum”).

DATES:

Effective Date: February 4, 2011.

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 May 6, 2009, the Department published its final results in the countervailing duty administrative review of HRCS from India covering the POR of January 1, 2007, through December 31, 2007 (“fifth POR” or “fifth administrative review”).^[1] See Final Results. In the Final Results, the Department applied adverse facts available (“AFA”) pursuant to sections 776(a) and (b) of the Tariff Act of 1930, as amended (“the Act”), in finding that Essar used and benefited from the nine subprograms under the State Government of Chhattisgarh Industrial Policy (“CIP”). See Final Results, and accompanying I&D Memorandum at “SGOC's Industrial Policy” section, “SGOC Industrial Policy 2004-2009” section, and Comment 2. In Essar I, the CIT remanded this issue, explaining that the Department's conclusions in its July 2010 remand redetermination regarding the fourth administrative review of the countervailing duty order on HRCS from India (“fourth POR” or “fourth administrative review”), which found that Essar did not benefit from the CIP, cast “grave doubt” upon the Department's findings that Essar benefited from the CIP during the fifth POR. See Essar I at 1300; see also Final Results of Redetermination Pursuant to Court Remand, in United States Steel Corp. v. United States, CIT No., 08-239 (Department of Commerce July 15, 2010) (“Fourth Administrative Review Redetermination”) at 5-6, 22-23. Thus, the CIT ordered the Department to reopen and place on the administrative record of the fifth administrative review certain documents from the fourth administrative review remand proceeding, and to consider those documents in its reassessment of whether Essar benefited from the CIP.

On October 28, 2010, the Department issued its final results of redetermination pursuant to Essar I. The remand redetermination explained that, in accordance with the CIT's order, and under respectful protest, the Department placed certain documents from the fourth administrative review remand proceeding on the record of the fifth administrative review. In light of certain statements by the CIT in Essar I and those documents that the CIT ordered the Department to place on the administrative record, the Department reassessed whether Essar benefited from the CIP during the fifth POR and determined that Essar did not benefit from the CIP during the fifth POR. See Remand Redetermination at 26. The Department's redetermination resulted in a change to the Final Results concerning Essar's net subsidy rate for the CIP from 54.69 percent to zero. Therefore, Essar's total net countervailable rate from the Final Results, 76.88 percent, decreased by 54.69 percentage points, to a total net countervailable subsidy rate of 22.19 percent. The CIT sustained the Department's remand redetermination on January 25, 2011. See Essar II.

Timken Notice

In its decision in Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, the CAFC held that, pursuant to section 516A(c) of 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 judgment in Essar I on January 25, 2011, sustaining the Department's decision in the Remand Redetermination that Essar did not benefit from the CIP during the fifth POR 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.

Amended Final Results

Because there is now a final court decision, the total net countervailable subsidy rate for Essar for the period January 1, 2007, through December 31, 2007, is 22.19 percent. The cash deposit rate for Essar is also 22.19 percent. The Department will instruct U.S. Customs and Border Protection to collect cash deposits for Essar at the rate indicated.

In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will 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 sections 516A(c), 751(a), and 777(i)(1) of the Act.

Dated: February 7, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  The administrative review covering the 2007 period is the fifth administrative review of the countervailing duty order on HRCS from India. The administrative review covering the 2006 period is the “fourth” administrative review. See Final Results and the accompanying I&D Memorandum at “Sale of High-Grade Iron Ore for LTAR” section (referring to the 2006 administrative review as the fourth administrative review).