[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Notices]
[Pages 28851-28853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7603]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-588-846]


Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from 
Japan: Notice of Amended Final Determination Pursuant to Court 
Decision.

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On February 22, 2006, the United States Court of International 
Trade (CIT) issued an order affirming the Department of Commerce's 
(Department) Final Results of Redetermination Pursuant to Court Remand 
filed by the Department of Commerce on December 2, 2003 
(Redetermination). See Nippon Steel

[[Page 28852]]

Corporation v. United States, SLIP OP. 06-23 (CIT 2006). The remand 
redetermination arose out of the final determination of sales at less 
than fair value in the antidumping duty investigation of hot-rolled 
flat-rolled carbon-quality steel products from Japan. Because all 
litigation in this matter has now concluded, the Department is issuing 
its amended final determination in accordance with the CIT's decision.

EFFECTIVE DATE: May 18, 2006.

FOR FURTHER INFORMATION CONTACT: Kimberley Hunt, AD/CVD Operations, 
Office 6, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington DC 20230; telephone: (202) 482-1272.

SUPPLEMENTARY INFORMATION:

BACKGROUND

    On May 6, 1999, the Department published a Notice of Final 
Determination of Sales at Less Than Fair Value: Hot-Rolled Flat-Rolled 
Carbon-Quality Steel Products from Japan, 64 FR 24329 (May 6, 1999) 
(Final Determination) covering the period of investigation (POI) July 
1, 1997 through June 30, 1998. On June 29, 1999, the antidumping duty 
order was published. See Notice of the Antidumping Duty Order: Certain 
Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Japan, 64 FR 
34778 (June 29, 1999). Both Bethlehem Steel Corporation, U.S. Steel 
Group, Ispat Inland, Inc., and LTV Steel Company, Inc. (collectively, 
Petitioners), and Nippon Steel Corporation (Nippon), a respondent, 
contested various aspects of the Final Determination.
    On October 26, 2000, the CIT issued its opinion and remanded to the 
Department an issue in the Final Determination for reconsideration: 
specifically, the CIT asked the Department to assess its rejection of 
Nippon's untimely submitted weight conversion factor and its assignment 
of a margin to the affected sales based upon adverse facts available 
and instructed the Department to determine whether Nippon acted to the 
best of its ability according to 19 U.S.C. Sec.  1677e(b) in submitting 
the requested weight conversion factor the Department. The court also 
instructed the Department to issue a policy statement on ex parte 
memoranda. Additionally, the CIT upheld the Department on several 
issues. Only one is pertinent here; namely, that the CIT affirmed the 
Department's methodology for determining the starting U.S. price from 
Nippon's invoices, which converted yen paid from the buyer to Nippon 
into U.S. dollars and used the converted amount from the invoice as the 
U.S. starting price, as opposed to using the U.S. dollar amount Nippon 
had submitted in its response, which had been negotiated between the 
parties and was an agreed upon U.S. dollar amount. See Nippon Steel 
Corporation v. United States, 118 F. Supp. 2d 1366 (CIT 2000) (Nippon 
I).
    Pursuant to the CIT's decision, the Department issued its remand 
redetermination concluding that Nippon ``failed to cooperate by not 
acting to the best of its ability'' and again assigned a margin to the 
affected sales based upon facts available, as opposed to using the 
actual, untimely reported weight conversion factor submitted by Nippon. 
See Final Results of Redetermination Pursuant to Court Remand: Nippon 
Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 
(December 8, 2000) (First Remand Redetermination) (available at http://ia.ita.doc.gov).
    Nippon contested various aspects of the Department's First Remand 
Redetermination. On April 20, 2001, the CIT issued its opinion 
regarding the Department's First Remand Redetermination and remanded, 
in part, the Department's results. The CIT found that the ex parte 
policy statement conformed to the requirements of the court's 
injunction regarding the placement on the record of memoranda detailing 
ex parte communications between parties and Department officials. 
However, the court remanded the case to the Department, specifically 
stating that it was not remanding the case for further examination of 
the adverse inference issue. Rather, the court stated that the 
Department's conclusion that Nippon ``failed to cooperate by not acting 
to the best of its ability'' was unsupported by substantial evidence 
and instructed the Department to re-calculate Nippon's dumping margin 
without using adverse facts available. See Nippon Steel Corporation v. 
United States, 146 F. Supp. 2d 835 (CIT 2001) (Nippon II).
    Pursuant to the CIT's decision, the Department changed its analysis 
of Nippon's weight conversion factor and selected weighted-average 
margins for theoretical weight sales as non-adverse facts available. 
See Final Results of Redetermination Pursuant to Court Remand: Nippon 
Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 (June 
19, 2001) (Second Remand Redetermination) (available as part of the CIT 
court record). Nippon contested the Department's Second Remand 
Redetermination. On October 12, 2001, the CIT issued its opinion 
regarding the Department's Second Remand Redetermination, remanding the 
case to the Department to devise a new approach to the determination of 
neutral facts available with respect to Nippon's weight conversion 
factor, stating that the Department unreasonably selected weighted-
average margins for theoretical weight sales as non-adverse facts 
available, where the margins reflected a weight conversion factor that 
was implausible. See Nippon Steel Corporation v. United States, SLIP 
OP. 01-122 (CIT October 12, 2001) (Nippon III).
    Pursuant to the CIT's decision, the Department issued its third 
redetermination and modified its approach by substituting a margin 
based on a weighted average of all reported U.S. actual-weight sales. 
See Final Results of Redetermination Pursuant to Court Remand: Nippon 
Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 
(November 13, 2001) (Third Remand Redetermination) (available as part 
of the CIT court record). Nippon contested the Department's Third 
Remand Redetermination, stating that the Department did not 
meaningfully change its methodology, as ordered by the CIT in Nippon 
III. On December 27, 2001, the CIT issued its opinion regarding the 
Department's Third Remand Redetermination, stating that it 
``refuse{d{time}  to further extend litigation by reopening the issue'' 
and ordering the Department to use Nippon's untimely reported weight 
conversion factor. See Nippon Steel Corporation v. United States, SLIP 
OP. 01-152 (CIT December 27, 2001) (Nippon IV).
    Both the U.S. Government and certain petitioners, Bethlehem Steel 
and U.S. Steel Group (collectively Bethlehem), appealed the decision to 
the United States Court of Appeals for the Federal Circuit (CAFC). 
Specifically, both appellants argued that the CIT erred in rejecting 
the Department's original determination to apply partial adverse facts 
available with respect to Nippon's weight conversion factor because the 
Department's determination was supported by substantial evidence. 
Bethlehem separately argued that the CIT erred by holding that the 
Department's determination of a yen-based U.S. starting price to be 
used for Nippon's U.S. sales was supported by substantial evidence.
    The CAFC held that the Department's application of partial adverse 
facts available was supported by substantial evidence and otherwise in 
accordance with the law but that the Department's methodology of 
calculating the U.S.

[[Page 28853]]

starting price was not in accordance with law. Nippon Steel Corporation 
v. United States, 337 F.3d 1373, 1385 (Fed. Cir. 2003). The CAFC 
reversed the CIT's decision to the extent that it held the opposite on 
any of these issues. The Department filed its fourth remand 
redetermination on December 2, 2003 and changed its methodology 
according to the CAFC's reversal of the CIT's decision on U.S. starting 
price and the use of partial adverse facts available for Nippon's 
weight conversion factor. See Final Results of Redetermination Pursuant 
to Court Remand Nippon Steel Corporation v. United States 99-08-00466 
(December 2, 2003) (Fourth Remand Redetermination). On February 22, 
2006, the CIT sustained the Department's Fourth Remand Redetermination. 
See Nippon Steel Corporation v. United States, SLIP OP. 06-23 (CIT 
February 22, 2006).
    In addition to the court decisions discussed above, the Government 
of Japan (GOJ) appealed, among other issues, the Department's 
application of adverse facts available for Nippon's weight conversion 
factor to the World Trade Organization (WTO). The GOJ did not appeal 
the U.S. starting price issue to the WTO. In its report, the WTO 
Appellate Body ruled that the Department acted inconsistently with the 
Antidumping Agreement in applying ``facts available'' to Nippon with 
regard to the reported weight conversion factor and found that the 
Department should have used Nippon's untimely submitted, actual weight 
conversion factor. The Department implemented the WTO Appellate Body's 
findings in a Section 129 Determination. See Notice of Determination 
Under Section 129 of the Uruguay Round Agreement Act: Antidumping 
Measures on Certain Hot-Rolled, Flat-Rolled Carbon Quality Steel 
Products from Japan, 67 FR 71936, 71939 (December 3, 2002) (129 
Determination). The effective date of the 129 Determination is November 
22, 2002.
    Because the effective date of the 129 Determination predates the 
Fourth Remand Redetermination, the Fourth Remand Redetermination 
includes an analysis of the effect of the 129 Determination on the 
antidumping duty margin. See Fourth Remand Redetermination at 2. 
Accordingly, the Department calculated two margins for Nippon in the 
Fourth Remand Redetermination. The first margin, 21.12 percent, 
reflects the use of the same adverse inference made in the original 
investigation with respect to the margins for Nippon's theoretical 
weight sales, but changes the starting price for U.S. sales from 
converted yen to reported U.S. dollars. This margin applies to Nippon's 
unreviewed entries made prior to November 22, 2002, the effective date 
of the 129 Determination. The second margin, 19.95 percent, reflects 
the various changes made to the original investigation margin as a 
result of the 129 Determination and includes the use of Nippon's actual 
reported weight conversion factor, but also reflects the use of the 
reported U.S. dollar as the U.S. starting price. This margin applies to 
Nippon's unreviewed entries made on or after the effective date of the 
129 Determination, November 22, 2002.

AMENDED FINAL DETERMINATION

    Because no party appealed the CIT's February 22, 2006 decision, 
there is now a final and conclusive decision in the court proceeding 
and we are thus amending the Final Determination to reflect the results 
of the Fourth Remand Redetermination, which addresses the CAFC's ruling 
as well as the changes to the margin pursuant to the 129 Determination. 
The recalculated margins are as follows:

------------------------------------------------------------------------
                                                               Weighted-
                                                                average
                    Manufacturer/exporter                       margin
                                                               (percent)
------------------------------------------------------------------------
From February 19, 1999 through November 21, 2002............
Nippon Steel Corporation....................................  21.12[perc
                                                                     nt]
On or after November 22, 2002...............................
Nippon Steel Corporation....................................  19.95[perc
                                                                     nt]
------------------------------------------------------------------------

    Accordingly, pursuant to 19 U.S.C. 1516a(e) and effective as of the 
publication of this notice, the Department will instruct U.S. Customs 
and Border Protection (CBP) to terminate the suspension of liquidation 
and proceed with liquidation of all appropriate entries entered, or 
withdrawn from warehouse, for consumption, on or after February 19, 
1999, and before November 22, 2002 (the effective date of the 129 
Determination) at the rate of 21.12 percent, and all entries entered, 
or withdrawn from warehouse, for consumption on or after November 22, 
2002 (the effective date of the 129 Determination) at the rate of 19.95 
percent.

CASH DEPOSIT REQUIREMENTS

    The Department will direct CBP to require, on or after the date of 
publication of this notice in the Federal Register, a cash deposit rate 
of 19.95 percent for the subject merchandise. This cash deposit 
requirement, when imposed, shall remain in effect until publication of 
the final results of an administrative review of this order.
    This notice is issued and published in accordance with sections 
735(d) and 777(i) of the Tariff Act of 1930, as amended.

    Dated: May 12, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E6-7603 Filed 5-17-06; 8:45 am]
BILLING CODE 3510-DS-S