[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]
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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]
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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