Certain Hot-Rolled Carbon Steel Flat Products From India: Final Results of Countervailing Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On January 9, 2008, the U.S. Department of Commerce (“the Department”) published in the Federal Register its preliminary results of the administrative review of the countervailing duty (“CVD”) order on certain hot-rolled carbon steel flat products (“hot-rolled carbon steel”) from India for the period of review (“POR”) January 1, 2006, through December 31, 2006. See Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Preliminary Results of Countervailing Duty Administrative Review; 73 FR 1578 (January 9, 2008) (“Preliminary Results”). We preliminarily found that Essar Steel Ltd. (“Essar”), Ispat Industries Ltd. (“Ispat”), JSW Steel Ltd. (“JSW”) and Tata Steel Ltd. (“Tata”) received countervailable subsidies during the POR. We received comments on our preliminary results from petitioners and all of the respondent companies, Essar, Ispat, JSW, and Tata. The final results are listed in the section “Final Results of Review” below.

DATES:

Effective Date: July 14, 1008.

FOR FURTHER INFORMATION CONTACT:

John Conniff at (202) 482-1009, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On December 3, 2001, the Department published in the Federal Register the CVD order on certain hot-rolled carbon steel flat products from India. See Notice of Amended Final Determination and Notice of Countervailing Duty Order: Certain Hot-Rolled Carbon Steel Flat Products from India, 66 FR 60198 (December 3, 2001). On January 9, 2008, the Department published in the Federal Register its preliminary results of the administrative review of this order for the period January 1, 2006, through December 31, 2006. See Preliminary Results, 73 FR 1578. In accordance with 19 CFR 351.213(b), this administrative review covers Essar, Ispat, JSW, and Tata, producers and exporters of subject merchandise. On March 6, 2008, the Department published in the Federal Register an extension of its final results of the instant administrative review. See Certain Hot-Rolled Carbon Steel Flat Products From India: Notice of Extension of Final Results of Countervailing Duty Administrative Review, 73 FR 12078 (March 6, 2008).

On January 17, 2008, February 26, 2008, March 4, 2008, and March 24, 2008, we issued supplemental questionnaires to Essar and we received responses on February 14, 2008, March 4, 2008, March 18, 2008 and March 31, 2008, respectively. On January 17, 2008, we also issued a supplemental questionnaire to the Government of India (“GOI”) and we received the response on February 14, 2008.

On January 18, 2008 and March 3, 2008, we issued supplemental questionnaires to Ispat, and we received responses on February 15, 2008 and March 21, 2008, respectively. On January 18, 2008, we also issued a supplemental questionnaire to the GOI and we received the response on February 8, 2008.

On January 11, 2008, we issued a supplemental questionnaire to Tata and we received a response on January 18, 2008. On January 11, 2008 we also issued a supplemental questionnaire to the GOI and received a response on February 20, 2008.

On March 6, 2008 through March 12, 2008, the Department conducted a verification of Tata. The Department issued its verification reports on April 17, 2008. A public version of this document is on file in the Central Records Unit (“CRU”), room 1117 of the main Commerce building.

In the Preliminary Results, we invited interested parties to submit briefs or request a hearing. On April 24, 2008, we received comments from Essar, Ispat, JSW, and Tata. In addition, we received comments from United States Steel Corporation and Nucor Corporation, the petitioners. On May 1, 2008, we received rebuttal comments from Essar, Ispat, Tata and petitioners. We received a request for a hearing from Essar and JSW on February 8, 2008 and April 22, 2008, respectively. On June 2, 2008, we held a public hearing in room 4205 of the Commerce Building. Parties can find a transcript of the hearing on file in the CRU of the main Commerce building.

Scope of Order

The merchandise subject to this order is certain hot-rolled carbon-quality steel products of a rectangular shape, of a width of 0.5 inch or greater, neither clad, plated, nor coated with metal and whether or not painted, varnished, or coated with plastics or other non-metallic substances, in coils (whether or not in successively superimposed layers), regardless of thickness, and in straight lengths, of a thickness of less than 4.75 mm and of a width measuring at least 10 times the thickness. Universal mill plate (i.e., flat-rolled products rolled on four faces or in a closed box pass, or a width exceeding 150 mm, but not exceeding 1250 mm, and of a thickness of not less than 4 mm, not in coils and without patterns in relief) of a thickness not less than 4.0 mm is not included within the scope of this order.

Specifically included in the scope of this order are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (“IF”) steels, high-strength low-alloy (“HSLA”) steels, and the substrate for motor lamination steels. IF steels are recognized as low-carbon steels with micro-alloying levels of elements such as titanium or niobium (also commonly referred to as columbium), or both, added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, vanadium, and molybdenum. The substrate for motor lamination steels contains micro-alloying levels of elements such as silicon and aluminum.

Steel products included in the scope of this order, regardless of definitions in the Harmonized Tariff Schedule of the United States (“HTS”), are products in which: (i) Iron predominates, by weight, over each of the other contained elements; (ii) the carbon content is 2 percent or less, by weight; and (iii) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

1.80 percent of manganese, or

2.25 percent of silicon, or

1.00 percent of copper, or

0.50 percent of aluminum, or

1.25 percent of chromium, or

0.30 percent of cobalt, or

0.40 percent of lead, or

1.25 percent of nickel, or

0.30 percent of tungsten, or

0.10 percent of molybdenum, or

0.10 percent of niobium, or

0.15 percent of vanadium, or

0.15 percent of zirconium.

All products that meet the physical and chemical description provided above are within the scope of this order unless otherwise excluded. The following products, by way of example, are outside or specifically excluded from the scope of this order.

• Alloy hot-rolled steel products in which at least one of the chemical elements exceeds those listed above (including, e.g., ASTM specifications A543, A387, A514, A517, A506).
• SAE/AISI grades of series 2300 and higher.
• Ball bearings steels, as defined in the HTS.
• Tool steels, as defined in the HTS.
• Silico-manganese (as defined in the HTS) or silicon electrical steel with a silicon level exceeding 2.25 percent.
• ASTM specifications A710 and A736.
• USS Abrasion-resistant steels (USS AR 400, USS AR 500).
• All products (proprietary or otherwise) based on an alloy ASTM specification (sample specifications: ASTM A506, A507).
• Non-rectangular shapes, not in coils, which are the result of having been processed by cutting or stamping and which have assumed the character of articles or products classified outside chapter 72 of the HTS.

The merchandise subject to this order is currently classifiable in the HTS at subheadings: 7208.10.15.00, 7208.10.30.00, 7208.10.60.00, 7208.25.30.00, 7208.25.60.00, 7208.26.00.30, 7208.26.00.60, 7208.27.00.30, 7208.27.00.60, 7208.36.00.30, 7208.36.00.60, 7208.37.00.30, 7208.37.00.60, 7208.38.00.15, 7208.38.00.30, 7208.38.00.90, 7208.39.00.15, 7208.39.00.30, 7208.39.00.90, 7208.40.60.30, 7208.53.00.00, 7208.54.00.00, 7208.90.00.00, 7211.14.00.90, 7211.19.15.00, 7211.19.20.00, 7211.19.30.00, 7211.19.45.00, 7211.19.60.00, 7211.19.75.30, 7211.19.75.60, and 7211.19.75.90. Certain hot-rolled flat-rolled carbon-quality steel covered by this order, including: vacuum-degassed fully stabilized; high-strength low-alloy; and the substrate for motor lamination steel may also enter under the following tariff numbers: 7225.11.00.00, 7225.19.00.00, 7225.30.30.50, 7225.30.70.00, 7225.40.70.00, 7225.99.00.90, 7226.11.10.00, 7226.11.90.30, 7226.11.90.60, 7226.19.10.00, 7226.19.90.00, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. Subject merchandise may also enter under 7210.70.30.00, 7210.90.90.00, 7211.14.00.30, 7212.40.10.00, 7212.40.50.00, and 7212.50.00.00. Although the HTS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise subject to this order is dispositive.

Period of Review

The POR for which we are measuring subsidies is from January 1, 2006, through December 31, 2006.

Analysis of Comments

On April 24, 2008 Essar, Ispat, JSW, Tata and petitioners filed comments. On May 1, 2008, Essar, Ispat, Tata and petitioners filed rebuttal comments. All issues in the respondents and petitioners case and rebuttal briefs are addressed in the accompanying Issues and Decision Memorandum for the Countervailing Duty Administrative Review on Certain Hot-Rolled Carbon Steel Flat Products from India (“Decision Memorandum”), which is hereby adopted by this notice. A listing of the issues that parties raised and to which we have responded is attached to this notice as Appendix I. Parties can find a complete discussion of the issues raised in this review and the corresponding recommendations in this public memorandum, which is on file in the CRU of the main commerce building. In addition, a complete version of the Decision Memorandum can be accessed directly on the World Wide Web at http://ia.ita.doc.gov/frn .

The paper copy and the electronic version of the Decision Memorandum are identical in content.

Final Results of Review

After reviewing comments from all parties, we have made adjustments to our calculations as explained in our Decision Memorandum. Consistent with the Preliminary Results, we find that Essar, Ispat, JSW, and Tata received countervailable subsidies during the POR.

Assessment Rates/Cash Deposits

The Department intends to issue assessment instructions to U.S. Customs and Border Protection (“CBP”) 15 days after the date of publication of these final results of review to liquidate shipments of subject merchandise by Essar, Ispat, JSW, and Tata entered, or withdrawn from warehouse, for consumption on or after January 1, 2006, through December 31, 2006, at the ad valorem rates listed above. We will also instruct CBP to collect cash deposits for each respondent at the countervailing duty rate indicated above on all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication of these final results of review.

For all non-reviewed companies, the Department has instructed CBP to assess countervailing duties at the cash deposit rates in effect at the time of entry, for entries between January 1, 2006, and December 31, 2006. The cash deposit rates for all companies not covered by this review are not changed by the results of this review.

Return or Destruction of Proprietary Information

This notice serves as a reminder to parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Appendix I—Issues in Decision Memorandum

Adverse Facts Available (AFA)

I. The Government of India (GOI)

II. JSW

Subsidies Valuation Information

I. Benchmarks for Loans and Discount Rates.

A. Short-Term Loan Benchmark.

B. Long-Term Benchmarks and Discount Rates.

II. Use of Uncreditworthy Benchmarks for Essar.

III. Allocation Period.

Analysis of Programs

I. Programs Determined To Be Countervailable:

A. GOI Programs.

1. Pre- and Post-Shipment Export Financing.

2. Export Promotion Capital Goods Scheme (EPCGS).

3. Duty Entitlement Passbook Scheme (DEPS).

4. Sale of High-Grade Iron Ore for Less Than Adequate Remuneration.

5. Advance License Program (ALP).

6. Loan Guarantees from the GOI.

7. Steel Development Fund (SDF) Loans.

8. Captive Mining of Iron Ore.

9. Captive Mining Rights of Coal.

10. Duty Free Replenishment Certificate (DFRC) Scheme.

B. State Government of Gujarat Programs.

State Government of Gujarat (SGOG) Tax Incentives.

C. State Government of Karnataka (SGOK) Programs.

1. SGOK's New Industrial Policy and Package of Incentives and Concessions of 1993 (1993 KIP).

a. Total AFA for Certain Sub-Programs.

b. VAT Refunds.

2. Other SGOK Subsidies.

3. SGOK's New Industrial Policy and Package of Incentives and Concessions of 1996 (1996 KIP).

4. SGOK's New Industrial Policy and Package of Incentives and Concessions of 2001 (2001 KIP).

5. SGOK's New Industrial Policy and Package of Incentives and Concessions of 2006 (2006 KIP).

D. State Government of Maharashtra Programs (SGOM).

1. Sales Tax Program.

2. Electricity Duty Exemption Under the Package Scheme of Incentives for 1993.

II. Programs Determined Not To Be Used:

A. GOI Programs.

1. Status Certificate Program.

2. Target Plus Scheme (TPS).

3. Export Processing Zones and Export Oriented Units.

4. Export Processing Zones.

5. Income Tax Exemption Scheme (Sections 10A, 10B, and 80HHC).

6. Market Development Assistance.

7. Market Access Initiative.

8. Exemption of Export Credit from Interest Taxes.

9. Long-Term Loans from the GOI.

10. Special Economic Zone Act of 2005.

a. Duty free import/domestic procurement of goods and service for development, operation, and maintenance of SEZ units.

b. Exemption from excise duties on goods (i.e., machinery and capital goods) “brought from the Domestic Tariff Area” (defined as the “whole of India” excluding SEZs) for use by an enterprise in the SEZ.

c. Drawback on goods brought or services provided from the Domestic Tariff Area into a SEZ, or services provided in a SEZ by service providers located outside India.

d. 100 percent exemption from income taxes on export income from the first 5 years of operation, 50 percent for the next 5 years, and a further 50 percent exemption on export income reinvested in India for an additional 5 years.

e. Exemption from the Central Sales Tax.

f. Exemption from the national Service Tax.

B. State Government of Andhra Pradesh Programs—Grants Under the Industrial Investment Promotion Policy of 2005-2010.

1. 25 percent reimbursement of cost of land in industrial estates and industrial development areas.

2. Reimbursement of power at the rate of Rs. 0.75 “per unit” for the period beginning April 1, 2005, through March 31, 2006 and for the four years thereafter to be determined by the Government of Andhra Pradesh (GOAP).

3. 50 percent subsidy for expenses incurred for quality certification up to RS. 100 lakhs.

4. 25 percent subsidy on “cleaner production measures” up to Rs. 5 lakhs.

5. 50 percent subsidy on expenses incurred in patent registration, up to Rs. 5 lakhs.

6. 100 percent reimbursement of stamp duty and transfer duty paid for the purchase of land and buildings and the obtaining of financial deeds and mortgages.

7. A grant of 25 percent of the tax paid to GAAP, which is applied as a credit against the tax owed the following year, for a period of five years from the date of commencement of production.

8. Exemption from the GAAP Non-Agricultural Land Assessment (NALA).

9. Provision of “infrastructure” for industries located more than 10 kilometers from existing industrial estates or industrial development areas.

10. Guaranteed “stable prices of municipal water for 3 years for industrial use” and reservation of 10% of water for industrial use for existing and future projects.

C. State Government of Chhattusgarh Programs—Industrial Policy 2004-2009.

1. A direct subsidy of 35 percent to total capital cost for the project, up to a maximum amount equivalent to the amount of commercial tax/central sales tax paid in a seven year period.

2. A direct subsidy of 40 percent toward total interest paid for a period of 5 years (up to Rs. Lakh per year) on loans and working capital for upgrades in technology.

3. Reimbursement of 50 percent of expenses (up to Rs. 75,000) incurred for quality certification.

4. Reimbursement of 50 percent of expenses (up to 5 lakh) for obtaining patents.

5. Total exemption from electricity duties for a period of 15 years from the date of commencement of commercial production.

6. Exemption from stamp duty on deeds executed for purchase or lease of land and buildings and deeds relating to loans and advances to be taken by the company for a period of three years from the date of registration.

7. Exemption from payment of “entry tax” for 7 years (excluding minerals obtained from mining in the state).

8. 50 percent reduction of the service charges for acquisition of private land by Chhattisgarh Industrial Development Corporation for use by the company.

9. Allotment of land in industrial areas at a discount up to 100 percent.

D. State Government of Gujarat Programs.

1. Gujarat Special Economic Zone (SEZ) Act.

a. Stamp duty and registration fees for land transfers, loan agreements, credit deeds, and mortgages.

b. Sales tax, purchase tax, and other taxes payable on sales and transactions.

c. Sales and other state taxes on purchases of inputs (both goods and services) for the SEZ or a Unit within the SEZ.

2. Captive Port Facilities.

a. Discount on Gujarat wharfage charges.

b. Credit for the cost of the capital (including interest) to construct the port facilities, which is then applied as an offset to the wharfage charges due Gujarat on cargo shipped through the captive jetty.

E. State Government of Jharkhand Programs.

1. Grants and Tax Exemptions under the State Industrial Policy of 2001.

2. Subsidies for Mega Projects under the JSIP of 2001.

F. State Government of Maharashstra Programs.

1. Refunds of Octroi Under the PSI of 1993, Maharastra Industrial Policy of 2001, and Maharastra Industrial Policy of 2006.

2. Infrastructure Assistance for Mega Projects.

3. Land for Less than Adequate Remuneration.

4. Loan Guarantees Based on Octroi Refunds by the SGM.

5. Investment Subsidy.

III. Total Ad Valorem Rate.

IV. Analysis of Comments.

Essar

Comment 1: Whether The Department Erred In Its Calculation Of Essar's Benefit Under The Government Of Gujarat Value Added Tax Remission Program.

Comment 2: Whether The Department Erred In Converting Dry Metric Tons To Wet Metric Tons In The Calculation Of The Benchmark Used To Measure The Adequacy Of Essar's Purchases Of Iron Ore From The GOI.

Comment 3: Whether The Department Should Use Actual Transaction Prices, Where Available, In Calculating The Benchmark Used To Measure Essar's Benefit Under The Iron Ore Provided For Less Than Adequate Remuneration Program.

Comment 4: Whether The Department Should Adjust The Prices Reported By Essar For Its Purchases Of Iron Ore Lumps And Fines To Exclude Sales Tax Which Is Not Included In The Benchmark Price.

Comment 5: Whether the Department Should Deduct Certain Freight Costs from The Benchmark Used to Measure the Adequacy of Essar's Purchases of Iron Ore from the GOI.

Comment 6: Whether The Failure Of The GOI And The Indian State Governments To Respond To The Department's Questions Warrants Application Of Adverse Facts Available With Respect To Newly Subsidy Programs Essar Claims It Did Not Use.

Comment 7: Whether Essar Adequately Demonstrated Its Non-Use of the Special Economic Zone Act of 2005.

Comment 8: Whether Essar Adequately Demonstrated Its Non-Use of the Gujurat Special Economic Zone Act.

Comment 9: Whether Essar Adequately Demonstrated Its Non-Use of the Captive Port Facilities Program.

Comment 10: Whether Essar Adequately Demonstrated Its Non-Use of the Andhra Pradesh Industrial Policy Program.

Comment 11: Whether Essar Adequately Demonstrated Its Non-Use of the Chhattisgarh Industrial Policy Program.

Comment 12: Whether the Department Erred in Calculating the Benefit on Essar's Pre-Shipment Export Financing.

Ispat

Comment 13: Whether The Department Should Calculate The Benefit Attributable To Ispat's Purchase Of Iron Ore For Less Than Adequate Remuneration From The GOI On An Ex Mines Basis Rather Than An FOB Port Basis.

Comment 14: Whether The Department Erred In Calculating The Benchmark Used To Measure The Adequacy Of Remuneration Of Ispat's Purchases Of High-Grade Iron Ore From The GOI.

Comment 15: Whether The Department Should Adjust The Prices Reported By Ispat For Its Purchases Of Iron Ore Lumps And Fines To Exclude Sales Tax Which Is Not Included In The Benchmark Price.

Comment 16: Whether Ispat's Purchases of Iron Ore from a Private Supplier Are a Valid Benchmark.

Comment 17: Whether to Include Fees in the Calculation of Ispat's Long-Term Benchmark Loan Rates.

Comment 18: Whether the Department Made Clerical Errors In Calculating Ispat's Long-Term Loan Benchmark.

Comment 19: Whether the Department Erred Calculating the Benchmark Used for Ispat Under the EPCGS Program.

Comment 20: Whether the Department Incorrectly Included VAT Refunds in the Benefit Calculation of the State of Maharastra's Sales Tax Program.

Comment 21: Whether the Department Erred by Including Countervailing Duties and Special Additional Duties in the Benefit Calculation of the EPCGS.

Comment 22: Whether the Advance License Program is Countervailable.

Comment 23: Whether The Failure Of The GOI And The Indian State Governments To Respond To The Department's Questions Warrants Application Of Adverse Facts Available With Respect To New Subsidy Programs Ispat Claims It Did Not Use.

Tata

Comment 24: Tata's Ownership Of Captive Mines Of Iron Ore And Coal And Whether The Provision Of Such Minerals Under The Captive Mining Rights Program Constitutes A Financial Contribution Under The Act.

Comment 25: Whether The Provision of Iron Ore and Coal Under the Captive Mining Rights Programs Are Specific Under the Act.

Comment 26: The Benchmark Used to Measure Whether the Captive Mining Rights Programs Imposed by the GOI Provide a Benefit In The Form Of A Provision Of A Good For Less Than Adequate Remuneration.

Comment 27: Whether the Department Should Calculate Separate Benchmarks to Measure the Adequacy of Remuneration of Tata's Purchases of Iron Ore Lumps and Fines under the Captive Mining Rights Program.

Comment 28: Whether the Department should include Ocean Freight in the Coal and Iron Ore Benchmark Calculation used to measure the adequacy of remuneration of Tata's purchases of Coal and Iron Ore under the Captive Mining Rights Program.

Comment 29: Whether the Department Should Make Adjustments for the Benchmark Prices of Tata Steel's Iron Ore and Coal costs on an equivalent basis.

Comment 30: Whether the TPS Conferred Benefits upon Tata during the POR.

Comment 31: Whether the SDF Constitutes a Financial Contribution.

Comment 32: Calculation of the Benefit to Tata under the EPCGS.

Comment 33: Whether The Department Should Revise The Manner In Which It Conducted The “0.5” Percent Test When Calculating The Benefit Attributable To Tata Under The EPCGS.

Comment 34: Attribution of Subsidies Received under the EPCGS.

Comment 35: The Use of Long-Term Prime Lending Rates as Benchmarks.

Comment 36: Whether The Department Should Countervail Tata's Sales Of DFRC Licenses An Untied Subsidy.

JSW

Comment 37: Whether the Department Unlawfully Used AFA Rate for JSW.

Comment 38: Whether Assistance Under The 1993 KIP Is Countervailable.

Comment 39: Whether JSW Purchased High Grade Iron Ore for Less Than Adequate Remuneration.

Comment 40: Whether Loan Guarantees from the GOI Are Countervailable.

Comment 41: Whether JSW Has Captive Mining Rights.

Comment 42: Whether the EPCGS Is Countervailable.

Comment 43: Whether DEPS Is Countervailable.