02-1790. Notice of Court Decision: Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On December 27, 2001, the United States Court of International Trade issued a final judgment with respect to the litigation in Nippon Steel Corp. v. United States, Consol. Ct. No. 99-08-00466. Slip Op. 01-152 (“Nippon IV”). This case arises out of the Department's 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). The final judgment in this case was not in harmony with the Department's May, 1999, Final Determination.

DATES:

The effective date of this notice is January 6, 2002, which is 10 days from the date on which the judgment of the Court was issued.

FOR FURTHER INFORMATION CONTACT:

Sean Carey at [phone] or Maureen Flannery at [phone], Import Administration, International Trade Administration, U.S. Department. of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230.

SUPPLEMENTARY INFORMATION:

The decision of the Court of International Trade in Nippon IV is that Court's final decision in a series of decisions addressing issues related to the antidumping margin assigned to Nippon Steel Corporation (“Nippon”) in the above-referenced Final Determination.

In Nippon Steel Corp. v. United States (“Nippon I”), 118 F. Supp. 2d 1366 (CIT 2000), that Court (1) remanded for Commerce to determine whether, as to weight conversion factors, Nippon acted to the best of its ability within the meaning of 19 U.S.C. § 1677e(b); (2) ordered Commerce to issue a policy statement on ex-parte memoranda in accordance with the opinion; and (3) upheld the Department on all other challenged aspects relating to Nippon. In Nippon Steel Corp. v. United States (“Nippon II”), 146 F. Supp. 2d 835 (CIT 2001), the Court (1) found that a revised policy statement as to ex-parte memoranda, 66 FR 16906 (March 28, 2001), complied with the Court's order in Nippon I; but (2) held that Commerce had erred in finding that Nippon did not act to the best of its ability with respect to providing requested weight conversion factors, and that, accordingly, Nippon's failure to timely provide these factors did not warrant an adverse inference in the selection of facts available for the affected sales. Thus, the Nippon II Court remanded for Commerce to recalculate Nippon's margin without using an adverse assumption in that respect. In Nippon Steel Corp. v. United States (“Nippon III”), Slip Op. 01-122 (CIT, October 12, 2001), the Court (1) rejected Nippon's claims that the Department's remand results methodology impermissibly took a different approach from that used in the investigation, but (2) rejected the Department's selection of the non-adverse facts available associated with the missing weight conversion factors, and remanded again for the Department to devise a new approach to the determination of neutral facts available.

In Nippon IV, the Court rejected the “application” of the Department's new approach, taking no position on whether it was reasonable as a general matter, and ordered the Department to use Nippon's untimely submitted (proprietary) weight conversion factor. Slip Op. 01-152, at 6-7. As mentioned above, this decision was issued as a final judgement in this case.

In its decision in Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (“Timken”), the United States Court of Appeals for the Federal Circuit held that, pursuant to 19 U.S.C. § 1516a(e), the Department must publish a notice of a court decision which is not “in harmony” with a Department determination, and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's decision in Nippon IV on December 27, 2001, constitutes a final decision of that court which is “not in harmony” with the Department's final determination of sales at less than fair value. This notice is published in fulfillment of the publication requirements of Timken.

Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal, or, if appealed, upon a “conclusive” court decision.

January 15, 2002

Faryar Shirzad,

Assistant Secretary for Import Administration.