[Federal Register Volume 85, Number 111 (Tuesday, June 9, 2020)]
[Notices]
[Pages 35262-35264]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12446]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-489-833]
Large Diameter Welded Pipe From the Republic of Turkey: Notice of
Court Decision Not in Harmony With Amended Final Determination in the
Less-Than-Fair-Value Investigation; Notice of Amended Final
Determination Pursuant to Court Decision; and Notice of Revocation of
Antidumping Duty Order, in Part
AGENCY: Enforcement and Compliance, International Trade Administration,
U.S. Department of Commerce.
SUMMARY: On May 22, 2020, the United States Court of International
Trade (CIT) sustained the Department of Commerce's (Commerce's) remand
redetermination pertaining to the less-than-fair-value (LTFV)
investigation of large diameter welded pipe (LDWP) from the Republic of
Turkey (Turkey). Commerce is notifying the public that the CIT's final
judgment in this litigation is not in harmony with
[[Page 35263]]
Commerce's amended final determination and order in the LTFV
investigation of LDWP from Turkey. Pursuant to the CIT's final
judgment, Commerce is amending the estimated weighted-average dumping
margins for Borusan Mannesman Boru Sanayi ve Ticaret A.S. (Borusan) and
all other producers and exporters of subject merchandise, and Borusan
is being excluded from the order.
DATES: Applicable June 1, 2020.
FOR FURTHER INFORMATION CONTACT: William Miller, AD/CVD Operations,
Office II, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-3906.
SUPPLEMENTARY INFORMATION:
Background
The litigation in Borusan Mannesman Boru Sanayi ve Ticaret A.S. v.
United States \1\ relates to Commerce's Final Determination \2\ in the
LTFV investigation covering LDWP from Turkey. In the underlying LTFV
investigation, Commerce made an affirmative final determination that
imports of LDWP from Turkey (including imports from Borusan) were
being, or were likely to be, sold for LTFV. Commerce granted mandatory
respondent Borusan a post-sale price adjustment for certain home market
sales; however, Commerce recalculated the amount of that adjustment
based on an agreement that predated the filing of the petition.\3\
Additionally, Commerce based the date of sale for Borusan's U.S. sales
on the earlier of shipment or invoice date because, although Borusan
claimed the purchase order date was the appropriate date of sale,
Borusan's purchase orders were subject to multiple revisions and
Borusan was unable to explain when no further changes were permitted
(i.e., when the material terms of its sales were final).\4\ Commerce
also found that a particular market situation (PMS) existed in Turkey
that distorted the costs of hot-rolled coil used to produce LDWP, and
as a result, Commerce adjusted Borusan's cost of production for the
purposes of the sales-below-cost test.\5\
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\1\ See Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United
States, 426 F. Supp. 3d 1395 (CIT 2020) (Borusan); and Borusan
Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, Consol.
Court No. 19-00056, Slip Op. 20-71 (CIT May 22, 2020) (Borusan II).
\2\ See Large Diameter Welded Pipe from the Republic of Turkey:
Final Determination of Sales at Less Than Fair Value, 84 FR 6362
(February 27, 2019) (Final Determination), and accompanying Issues
and Decision Memorandum (IDM), amended by Large Diameter Welded Pipe
from the Republic of Turkey: Amended Final Affirmative Antidumping
Duty Determination and Antidumping Duty Order, 84 FR 18799 (May 2,
2019) (Amended Final Determination and Order).
\3\ See Final Determination IDM at Comment 3.
\4\ Id. at Comment 2.
\5\ Id. at Comment 1.
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Borusan appealed Commerce's final determination to the CIT, and on
January 7, 2020, the CIT remanded to Commerce to:
(1) Allow a post-sale price adjustment for the amount for which
Borusan established it was liable and actually paid, unless Commerce
had additional evidence that shows an improper allocation for the
claimed adjustment;\6\
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\6\ See Borusan, 426 F. Supp. 3d at 1410, 1414-15.
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(2) determine whether the regulatory presumption in favor of
invoice date governs, and if the material terms of the sale were
essentially fixed before invoice date;\7\ and
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\7\ Id., 426 F. Supp. 3d at 1403, 1414-15.
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(3) not adjust the reported production costs based on a PMS for the
purposes of the sales-below-cost test.\8\
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\8\ Id., 426 F. Supp. 3d at 1411-12, 14-1415.
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On March 9, 2020, Commerce issued the Final Results of
Redetermination in accordance with the CIT's remand order, under
respectful protest.\9\ On remand, Commerce granted Borusan the full
amount of the post-sale price adjustment as reported in its home market
sales data which resulted in a de minimis estimated weighted-average
dumping margin for Borusan.\10\ Therefore, because Borusan's estimated
weighted-average dumping margin would only be further reduced were
Commerce to adjust its calculations for the remaining issues remanded
(i.e., U.S. date of sale and PMS adjustment), Commerce did not reach
these issues for purposes of the Final Results of Redetermination.\11\
On May 22, 2020, the CIT sustained the Final Results of
Redetermination.\12\
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\9\ See ``Final Results of Redetermination Pursuant to Court
Remand, Borusan Mannesmann Boru Sanayi ve Ticaret A.S. v. United
States Court No. 19-00056, Slip Op. 20-4 (CIT 2020),'' dated March
9, 2020 (Final Results of Redetermination).
\10\ Id.
\11\ Id. at 2.
\12\ See Borusan II.
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Timken Notice
In its decision in Timken,\13\ as clarified by Diamond Sawblades,
\14\ the United States Court of Appeals for the Federal Circuit
(Federal Circuit) held that, pursuant to section 516A of the Tariff Act
of 1930, as amended (the Act), Commerce must publish a notice of court
decision that is not ``in harmony'' with a Commerce determination and
must suspend liquidation of entries pending a ``conclusive'' court
decision.\15\ The CIT's May 22, 2020, judgment sustaining Commerce's
Final Results of Redetermination constitutes a final decision of the
CIT that is not in harmony with Commerce's Amended Final Determination
and Order. Thus, this notice is published in fulfillment of the
publication requirements of Timken and section 516A of the Act.
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\13\ See Timken Co. v. United States, 893 F. 2d 337 (Fed. Cir.
1990) (Timken).
\14\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F. 3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\15\ See sections 516A(c) and (e) of the Act.
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Amended Final Determination
Because there is now a final court decision, Commerce is amending
its Amended Final Determination and Order with respect to the estimated
weighted-average dumping margins for Borusan and the companies covered
by the all-others rate. The revised estimated weighted-average dumping
margins for these entities are as follows:
------------------------------------------------------------------------
Cash deposit
Estimated weighted- (adjusted for
Company average dumping subsidy offset(s))
margin (percent) (percent) \16\
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Borusan Mannesmann Boru Sanayi 0.78 N/A
ve Ticaret A.S.................
HDM Celik Boru Sanayi ve Ticaret 2.57 1.57
A.S............................
All Others \17\................. 2.57 1.57
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[[Page 35264]]
Amended Antidumping Duty Order
Pursuant to section 735(a)(4) of the Act, Commerce ``shall
disregard any weighted average dumping margin that is de minimis as
defined in section 733(b)(3) of the Act.'' \18\ As a result of this
amended final determination, in which Commerce has calculated an
estimated weighted-average dumping margin for Borusan that is de
minimis, Commerce is hereby excluding merchandise produced and exported
by Borusan from the antidumping duty (AD) order.\19\ If the CIT's
ruling is not appealed, or if appealed and upheld, Commerce will direct
U.S. Customs and Border Protection (CBP) to release any bonds or other
security and refund cash deposits pertaining to any suspended entries
from Borusan. This exclusion does not apply to any other companies.\20\
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\16\ See Amended Final Determination and Order, 84 FR at 18800.
\17\ As explained in the Final Results of Redetermination,
Commerce calculated a de minimis margin for Borusan. See Final
Results of Redetermination at 11. Therefore, the only rate that is
not zero, de minimis, or based entirely on facts otherwise available
in the underlying LTFV investigation is the rate calculated for the
other mandatory respondent, HDM Celik Boru Sanayi ve Ticaret A.S.
(HDM). See Amended Final Determination and Order, 84 FR at 18800.
Consequently, the rate calculated for HDM is also assigned as the
estimated weighted-average dumping margin for all other producers
and exporters, pursuant to section 735(c)(5)(A) of the Act.
\18\ Section 733(b)(3) of the Act defines de minimis dumping
margin as ``less than 2 percent ad valorem or the equivalent
specific rate for the subject merchandise.''
\19\ See Final Results of Redetermination at 11.
\20\ See supra, n.2.
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Continued Suspension of Entries for Borusan
Pursuant to Timken, the suspension of liquidation must continue
during the pendency of the appeals process. Thus, we will instruct CBP
to suspend liquidation of all unliquidated entries from Borusan at a
cash deposit rate of zero percent which are entered, or withdrawn from
warehouse, for consumption after June 1, 2020, which is ten days after
the CIT's final decision, in accordance with section 516A of the
Act.\21\ If the CIT's ruling is not appealed, or if appealed and
upheld, Commerce will instruct CBP to terminate the suspension of
liquidation and to liquidate entries produced and exported by Borusan
without regard to antidumping duties. As a result of Borusan's
exclusion from the AD order, Commerce will not initiate any new
administrative reviews of the company's entries.\22\
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\21\ See, e.g., Drill Pipe from the People's Republic of China:
Notice of Court Decision Not in Harmony with International Trade
Commission's Injury Determination, Revocation of Antidumping and
Countervailing Duty Orders Pursuant to Court Decision, and
Discontinuation of Countervailing Duty Administrative Review, 79 FR
78037, 78038 (December 29, 2014); High Pressure Steel Cylinders From
the People's Republic of China: Notice of Court Decision Not in
Harmony With Final Determination in Less Than Fair Value
Investigation, Notice of Amended Final Determination Pursuant to
Court Decision, Notice of Revocation of Antidumping Duty Order in
Part, and Discontinuation of Fifth Antidumping Duty Administrative
Review, 82 FR 46758, 46760 (October 6, 2017).
\22\ Currently there are no ongoing administrative reviews of
this order.
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Liquidation of Suspended Entries for Borusan
At this time, Commerce remains enjoined by CIT order from
liquidating entries that: (1) Were produced and exported by Borusan,
and were entered, or withdrawn from warehouse, for consumption on or
after August 27, 2018, up to and including February 22, 2019; and (2)
were produced and/or exported by Borusan, and were entered, or
withdrawn from warehouse, for consumption on or after April 19, 2019,
up to and including April 30, 2020. These entries will remain enjoined
pursuant to the terms of the injunction during the pendency of any
appeals process.
Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(c)(1) and (e), and 777(i)(1) of the Act.
Dated: June 3, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-12446 Filed 6-8-20; 8:45 am]
BILLING CODE 3510-DS-P