[Federal Register Volume 63, Number 236 (Wednesday, December 9, 1998)]
[Notices]
[Pages 67858-67860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32721]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-533-063]
Certain Iron-metal Castings From India: Amended Final Results of
Countervailing Duty Administrative Review in Accordance With Decision
Upon Remand
AGENCY: International Trade Administration, Import Administration,
Department of Commerce
ACTION: Notice of amendment to final results of countervailing duty
administrative review in accordance with decision upon remand.
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SUMMARY: On September 29, 1998, in Creswell Trading Co. v. United
States, Slip Op. No 98-139., the United States Court of International
Trade (CIT) affirmed the Department of Commerce's (the Department's)
redetermination on remand regarding the administrative review covering
the period January 1, 1985, through December 31, 1985. In accordance
with the CIT's instructions, the Department has recalculated the
countervailing duty rates. The final countervailing duty rates for this
review period are listed below in the Results of Remand section.
EFFECTIVE DATE: December 9, 1998.
FOR FURTHER INFORMATION CONTACT: Robert Copyak or Richard Herring,
Office of AD/CVD Enforcement VI, Import Administration, International
[[Page 67859]]
Trade Administration, U.S. Department of Commerce, 14th & Constitution
Avenue, N.W., Room 4012, Washington, D.C. 20230; telephone (202) 482-
2786.
SUPPLEMENTARY INFORMATION: On December 10, 1990, the Department
published in the Federal Register (55 FR 50747) the final results of
its administrative review of the countervailing duty order on certain
iron-metal castings from India for the period January 1, 1985, through
December 1, 1985. Subsequently, respondents challenged the Department's
final results before the Court of International Trade (CIT) regarding
the Department's methodology for calculating program rates for the
subsidies provided under India's International Price Reimbursement
Scheme (IPRS).
The IPRS is a program through which the Government of India
(``GOI'') provided rebates to castings exporters that purchased
domestically-produced pig iron at prices set by the GOI. According to
the GOI, the amounts of these rebates were calculated to equal the
differences between the higher prices actually paid for domestic pig
iron and alternative prices of pig iron available from sources outside
of India. In the 1985 administrative review of the countervailing duty
order, the Department determined that the IPRS program was
countervailable in its entirety because the rebates provided
preferential prices for exporters which were not available to domestic
purchasers of pig iron. Indian exporters appealed to the CIT, claiming
that the Department should have examined whether the IPRS program met
the criteria for non-countervailability under Item (d) of the
Illustrative List of Export Subsidies. The CIT agreed and remanded the
case to the Department. Creswell Trading Co. v. United States, 783 F.
Supp. 1418 (CIT 1992) (``Creswell I''). The Department again determined
that the program was countervailable in its entirety because the Indian
exporters did not provide sufficient information to conduct an Item (d)
analysis. The CIT upheld the Department's position on the first remand
of the 1985 review. Creswell Trading Co. v. United States, 797 F. Supp.
1038 (CIT 1992) (``Creswell II'').
The Indian exporters appealed Creswell II to U.S. Court of Appeals
for the Federal Circuit (Federal Circuit). On February 2, 1994, in
Creswell Trading Co., v. United States, 15 F.3d 1054 (Fed. Cir. 1994)
(``Creswell III''), the Federal Circuit held that the Indian exporters
had met their burden of producing evidence regarding prices for pig
iron on the world market. Consequently, the Federal Circuit instructed
the CIT to remand the final results of the 1985 administrative review
to the Department with instructions to conduct an Item (d) analysis of
the IPRS program taking into consideration pig iron pricing information
placed on the record by the Indian exporters. On April 25, 1994,
pursuant to the opinion of the Federal Circuit in Creswell III, the CIT
remanded the final results of the 1985 administrative review to the
Department for the second time.
In the second remand, the Department found that the IPRS program
fit within the general concept of the Item (d) exception in that the
program attempted to rebate to Indian casting exporters the difference
between the higher cost of Indian pig iron and the lower cost of
foreign-sourced pig iron. The Department interpreted Item (d) to permit
a comparison of delivered prices in order to give effect to the Item
(d) language which required an analysis of ``such terms and
conditions'' that made foreign-sourced pig iron ``commercially
available on world markets to [Indian] exporters.'' The Department
determined that, because the payments to Indian exporters under the
IPRS program enabled castings exporters to obtain pig iron on terms
``more favorable than those available on world markets,'' the payments
were excessive. Accordingly, the Department determined that the
payments were countervailable to the extent they covered scrap used in
the production of castings and to the extent ocean freight was excluded
from the international benchmark price. In Creswell Trading Co. v.
United States, 936 F. Supp. 1072 (CIT 1996) (``Creswell IV''), the CIT
affirmed the Department's determination that the IPRS program fit
within the ambit of the Item (d) exception. It also affirmed the
Department's determination to countervail IPRS payments for scrap, but
disapproved of the Department's determination that an Item (d) analysis
requires comparing delivered prices to delivered prices, inclusive of
ocean freight. On September 30, 1996, the Department submitted its
third redetermination on remand, in which it excluded the cost of ocean
freight from the international benchmark price for pig iron, and the
CIT affirmed it in Creswell Trading Co. v. United States, 964 F. Supp.
409 (CIT 1997) (``Creswell V''). The Department then appealed Creswell
V with respect to the exclusion of ocean freight from the world market
price of pig iron. The Federal Circuit reversed, in part, the CIT's
opinion in Creswell V, stating in relevant part that the CIT ``erred in
holding that the oceanic shipping costs did not constitute
countervailable subsidies under Item (d).'' Creswell Trading Co. v.
United States, 141 F.3rd 1471, 1477 (1998) (``Creswell VI''). The
Federal Circuit went on to state that:
Item (d) specifies that delivery of products by a foreign
government to exporters on terms or conditions more favorable than
are ``commercially available'' to those exporters on the world
markets constitutes a countervailable subsidy. Item (d) thus
recognizes that foreign governments may subsidize their domestic
industries to allow them to compete effectively on the world market
as long as the extent of the subsidization is not more favorable to
their exporters than if those exporters had to participate in the
world market without assistance. If the amount of the subsidization
exceeds this point, it is excessive and this excessive amount is
countervailable under Item (d). Accordingly, Item (d) mandates a
comparison between the terms and conditions under which product was
supplied to exporters by their governments and the terms and
conditions to which those exporters would have been subject had they
instead participated in the world market.
Id. Further, the Federal Circuit explained that:
A castings manufacturer procuring pig iron on the world market
would have to pay the FOB price for the pig iron itself, plus the
cost of shipping that iron to India. Accordingly, the world market
price must include the cost of shipping. To the extent that the
Indian government's world market price did not include oceanic
shipping costs, its world market price was artificially low and its
rebate artificially high by this amount. The price of pig iron that
is not delivered to India cannot be fairly compared with the price
of pig iron that is delivered. Thus, because of the omission of
oceanic shipping costs from the calculation of the world market
price, the IPRS program has in effect provided pig iron to India's
castings manufacturers on terms and conditions more favorable than
had those manufacturers actually procured pig iron on the world
market.
Id. 141 F.3rd at 1478.
Results of Remand
In accordance with the CIT's order dated June 24, 1998, the
Department prepared final results of redetermination on remand with
respect to the final results of the 1985 countervailing duty
administrative review of iron-metal castings from India. Pursuant to
the CIT's remand instructions, which were issued as a result of
Creswell VI, the Department, in recalculating the countervailable
subsidy conferred under India's IPRS program, included ocean freight in
the international benchmark price for pig iron. The Department has
recalculated the subsidies provided under the IPRS program consistent
with
[[Page 67860]]
the opinion of the Federal Circuit in Creswell VI.
On September 29, 1998, the CIT affirmed the Department's
redetermination. Creswell Trading Co. v. United States, Slip Op. No.
98-139. No comments were received by the CIT contesting the
Department's redetermination. Therefore, in accordance with the results
of remand affirmed by the CIT, we are amending the final results of
administrative review. The final countervailing duty rates for the 1985
period of review are the following:
Carnation Enterprise Pvt. Ltd.--13.83%
Crescent Foundry Co. Pvt. Ltd.--30.09%
Govind Steel--51.39%
Kejriwal Iron & Steel Works--14.09%
R.B. Agarwalla & Co.--7.96%
R.S.I.--8.22%
Serampore Industries Pvt. Ltd.--22.09%
Uma Iron & Steel Co.--15.64%
Kajaria Castings Ltd.--44.84%
Super Castings Ltd.--29.40%
Country-wide Rate--22.09%
The Department will instruct the Customs Service to assess
countervailing duties on all appropriate entries. The Department will
issue liquidation instructions directly to the Customs Service. The
above rate will not affect the cash deposit requirements currently in
effect, which will continue to be based on the rates found to exist in
the most recently completed review.
This amendment to the final results of countervailing duty
administrative review notice is in accordance with section 751(a)(1) of
the Tariff Act, as amended, (19 U.S.C. 1675(a)(1)) and Sec. 355.22 of
the Department's regulations (19 CFR 355.22 (1989)).
Dated: December 1, 1998.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 98-32721 Filed 12-8-98; 8:45 am]
BILLING CODE 3510-DS-P