02-26310. Stainless Steel Sheet and Strip in Coils from Taiwan: Notice of Court Decision

AGENCY:

Import Administration, International Trade Administration, U.S. Department of Commerce.

ACTION:

Notice of Court Decision.

SUMMARY:

On August 22, 2002, the United States Court of International Trade (“Court”) sustained the final remand determination made by the Department of Commerce (“the Department”) pursuant to the Court's remand of the final determination of the administrative review of stainless steel sheet and strip in coils from Taiwan. See Tung Mung Development Co., Ltd. v. United States, Ct. No. 99-07-00457, Slip Op. 02-93 (Ct. Int'l Trade August 22, 2002) (“Tung Mung II”). This case arises out of the Department's Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils from Taiwan; 64 FR 30592 (June 8, 1999) (“Final Determination”). The final judgment in this case was not in harmony with the Department's June 1999 Final Determination.

EFFECTIVE DATE:

September 2, 2002.

FOR FURTHER INFORMATION CONTACT:

Laurel LaCivita, Antidumping/Countervailing Duty Enforcement, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

The Court of International Trade in Tung Mung II affirmed the Department's remand redetermination, which related to the Department's middleman dumping methodology and the antidumping margin assigned to the Tung Mung Development Co., Ltd. (“Tung Mung”) and Yieh United Steel Company Ltd. (“YUSCO”).

In Tung Mung Development Co., Ltd. v. United States, Slip Op. 01-83, Ct. Int'l Trade LEXIS 94 (July 3, 2001) (“Tung Mung I”), the Court remanded the Department's determination on the issue of the single, weighted-average rate for producers and middlemen. The Court ordered the Department to “either provide a reasonable explanation of substantial evidence for its change in practice, or * * * apply a combination rate, consistent with its prior practice.”

On November 8, 2001, the Department issued its draft results of redetermination of remand for comment by interested parties. On November 15, 2001, petitioners¹ and Tung Mung submitted comments in response to the Department's draft results of redetermination of remand. Plaintiff-Intervener YUSCO did not file comments in response to the Department's draft results of redetermination of remand. On November 20, 2001, petitioners, Tung Mung and YUSCO submitted rebuttal comments. On November 28, 2001, the Department issued its final results of redetermination of remand to the Court. The remand redetermination explained the legal authority under which the Department may apply either a single weighted-average rate or a combination rate in a middleman dumping case, depending on the facts of the case. The Department reconsidered its use of a single weighted-average rate in this case, in response to the Court's expressed concern, and applied instead combination rates to both Tung Mung's and YUSCO's merchandise.

On August 22, 2002, the Court affirmed the Department's analysis and recognized the authority of the Department to apply either a single weighted-average rate or a combination rate in a middleman dumping case, depending on the facts of the case. It then sustained the Department's redetermination of remand. See Tung Mung II.

In its decision in Timkin Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (“Timkin”), 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 Court's decision in Tung Mung II on August 22, 2002, constitutes a final decision of that court which is “not in harmony” with the Department's final results of antidumping duty administrative review. This notice is published in fulfillment of the publication requirements of Timkin.

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.

Dated: October 3, 2002.

Faryar Shirzad,

Assistant Secretary for Import Administration.

Footnotes

1.  Allegheny Ludlum, AK Steel Corporation (formerly Armco, Inc.), J&L Specialty Steel, Inc., North American Stainless, Butler-Armco Independent Union, Zanesville Armco Independent Union, and the United Steelworkers of America, AFL-CIO/CLC.