Federal Register, Volume 76 Issue 29 (Friday, February 11, 2011)

[Federal Register Volume 76, Number 29 (Friday, February 11, 2011)]
[Notices]
[Pages 7810-7811]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3117]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-533-821]


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.

[[Page 7811]]

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 (202) 482-3338.

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
[FR Doc. 2011-3117 Filed 2-10-11; 8:45 am]
BILLING CODE 3510-DS-P