E9-29468. Certain Steel Concrete Reinforcing Bars from Turkey: Notice of Court Decision Not in Harmony with Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 15, 2009, and November 23, 2009, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) results of redetermination pursuant to the CIT's remand orders in Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States, Court No. 05-00613, Slip Op. 09-55 (June 15, 2009) and Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. v. United States, Court No. 05-00613, Slip Op. 09-133 (Nov. 23, 2009). See Results of Redetermination Pursuant to Remand, dated March 3, 2008, and Results of Redetermination Pursuant to Remand, dated September 8, 2009 (found at http://ia.ita.doc.gov/​remands). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's final results of the administrative review of the antidumping duty order on certain steel concrete reinforcing bars (rebar) from Turkey covering the period of review (POR) of April 1, 2003, through March 31, 2004. See Certain Steel Concrete Reinforcing Bars From Turkey; Final Results, Rescission of Antidumping Duty Administrative Review in Part, and Determination To Revoke in Part, 70 FR 67665 (Nov. 8, 2005) (Final Results).

EFFECTIVE DATE:

December 10, 2009.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Eastwood, AD/CVD Operations, Office 2, Import Administration-International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC, 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On November 8, 2005, the Department published its final results in the antidumping duty administrative review of rebar from Turkey covering the POR of April 1, 2003, through March 31, 2004. See Final Results. In the Final Results, the Department followed its normal practice of using POR weighted-average costs in its margin calculations for all companies, instead of quarterly-average costs as requested by one respondent, Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. (Habas). In addition, in the Final Results, the Department based the U.S. date of sale for each respondent on the earlier of shipment date or invoice date, contrary to Habas' request to use contract date as its U.S. date of sale.

On November 15, 2007, the CIT remanded two issues to the Department for reconsideration related to the Final Results for Habas:1) using POR weighted-average costs versus quarterly-average costs in its margin calculations; and 2) basing the U.S. date of sale on invoice date versus contract date. On March 3, 2008, the Department issued its final results of redetermination pursuant to the CIT's November 15, 2007, ruling.

On June 15, 2009, the CIT affirmed the Department's determination to use contract date as the date of sale for Habas' U.S. sales. However, the CIT also determined that the Department's Final Results were not supported by substantial evidence on the record with respect to the agency's cost test. Thus, it remanded to the Department once again whether it is appropriate to use quarterly or POR-average costs for Habas in this case.

On September 8, 2009, the Department issued its final results of redetermination pursuant to the CIT's June 15, 2009, ruling. The remand redetermination explained that, in accordance with the CIT's instructions, the Department reconsidered its use of POR cost data and as a result it recalculated the margin for Habas using quarterly costs. Further, the Department adopted an alternative methodology for the recovery-of-cost test and eliminated the 90/60 day window period for price-to-price comparisons to prevent distortions as a result of the use of quarterly costs.

The Department's redeterminations resulted in changes to the Final Results weighted-average margin for Habas from 26.07 percent to 5.58 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's decision on November 23, 2009, constitutes a final decision of that court that is not in harmony with the Department's Final Results. 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, pending a final and conclusive court decision. In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from Habas based on the revised assessment rates calculated by the Department.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: December 4, 2009.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.