E5-7275. Stainless Steel Bar from India: Notice of Court Decision Not in Harmony and Continuation of Suspension of Liquidation

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On October 20, 2005, in Slater Steels Corp. v. United States, Consol. Court No. 02-00551, Slip Op. 05-137 (CIT October 20, 2005) (“Slater III”), a lawsuit challenging the Department of Commerce's (“the Department”) Notice of Amended Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India, 67 FR 53336 (August 15, 2002) (“Final Results”) and the accompanying Issues and Decision Memorandum (July 5, 2002) (“Decision Memorandum”), the Court of International Trade (“CIT”) affirmed the Department's third remand determination and entered a judgment order. In the remand determination, the Department did not collapse Viraj Alloys Limited (“VAL”) with Viraj Impoexpo Limited (“VIL”) and Viraj Forgings Limited (“VFL”). The Department calculated an individual antidumping duty margin for VIL/VFL. The Department did not calculate an individual antidumping duty margin for VAL because it did not export the subject merchandise to the United States during the period of review. The resulting antidumping duty margin for VIL/VFL is 0.84 percent.

Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department will continue to order the suspension of liquidation of the subject merchandise until there is a “conclusive” decision in this case. If the case is not appealed, or if it is affirmed on appeal, the Department will instruct the U.S. Customs and Border Protection (“CBP”) to liquidate all relevant entries of subject merchandise for VIL/VFL.

EFFECTIVE DATE:

October 30, 2005.

FOR FURTHER INFORMATION CONTACT:

Steve Williams, AD/CVD Enforcement Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

In the underlying administrative review covering the period February 1, 2000, though January 31, 2001, the Department collapsed VAL, VIL, and VFL pursuant to 19 USC § 1677(33) and 19 CFR § 351.401(f) (2000). See Final Results; see also Decision Memorandum at Comment 1. As a collapsed entity, VAL/VIL/VFL received a de minimis dumping margin.

Based upon the record evidence, the Department found that VAL, VIL, and VFL “meet the regulations' collapsing requirements.” Decision Memorandum at Comment 1. First, the Department found that “VAL and VIL can produce subject merchandise (i.e., similar or identical products) and can continue to do so, independently or under existing leasing agreements, without substantial retooling of their production facilities.” Id. Second, the Department found “a significant potential for the manipulation of price and production among VIL, VAL, and VFL.” Id. Slater Steels Corporation, Carpenter Technology Corporation, Electralloy Corporation, and Crucible Specialty Metals Division of Crucible Materials Corporation (collectively, the “plaintiffs”/“defendant-intervenors”) challenged this determination before the CIT, arguing that the Department misapplied its collapsing regulation.

The CIT determined that the Department's decision to collapse VAL, VIL, and VFL was not supported by substantial evidence on the record. Therefore, the CIT remanded the Final Results to the Department to reconsider its analysis of the collapsing issue and, if necessary, revise the dumping margin calculation accordingly. See Slater Steels Corp. v. United States, 279 F. Supp. 2d 1370 (CIT August 21, 2003) (“Slater I”). Pursuant to the CIT's order in Slater I, the Department filed its Final Results of Redetermination Pursuant to Remand (“Remand I”). In Remand I, the Department determined that its decision to collapse VAL, VIL, and VFL was supported by substantial evidence and in accordance with the law, and therefore, the Department did not revise its dumping margin calculations.

Upon review of Remand I, the CIT again remanded the Final Results to the Department for further review of its collapsing determination, citing certain issues for the Department to reexamine. See Slater Steels Corp. v. United States, Court No. 02-00551, Slip Op. 04-22 (CIT March 8, 2004) (“Slater II”). In response to the CIT's instructions in Slater II, the Department filed its Final Results of Redetermination Pursuant to Remand (“Remand II”). In Remand II, the Department addressed the concerns raised by the CIT in Slater II and found that the decision to collapse VAL, VIL, and VFL was supported by substantial evidence and in accordance with the law, and therefore, the Department did not revise its dumping margin calculations.

Upon review of Remand II, the CIT again remanded the Final Results to the Department with specific instructions that the Department calculate individual dumping margins. See Slater III Slip Op. 05-137 at 15. The CIT found that the Department's decision to collapse VAL, VIL, and VFL in the Final Results was not consistent with the Department's decision not to collapse VAL, VIL, and VFL in previous reviews. See Slater III Slip Op. 05-137 at 15. In Final Results of Redetermination Pursuant to Remand (“Remand III”), the Department did not collapse VAL with VIL/VFL. See Remand III at 5-6. The Department collapsed VIL and VFL because the plaintiffs agreed in the underlying review that VIL and VFL should be collapsed. See Remand III at 5. VIL/VFL's resulting antidumping duty margin is 0.84 percent. Id. at 26. The CIT affirmed the Department's Remand III on October 20, 2005. See Slater III Slip Op. 05-137 at 4-5.

Suspension of Liquidation

The Federal Circuit, in Timken, held that the Department must publish notice of a decision of the CIT or the Federal Circuit which is not “in harmony” with the Department's Final Results. Publication of this notice fulfills that obligation. The Federal Circuit also held that the Department must suspend liquidation of the subject merchandise until there is a “conclusive” decision in the case. Therefore, pursuant to Timken, the Department must continue to suspend liquidation pending the expiration of the period to appeal the CIT's October 20, 2005, decision or, if that decision is appealed, pending a final decision by the Federal Circuit.

The Department will instruct CBP to liquidate relevant entries covering the subject merchandise, in the event that the CIT's ruling is not appealed, or if appealed and upheld by the Court of Appeals for the Federal Circuit.

Dated: December 7, 2005.

Joesph A. Spetrini,

Acting Assistant Secretary for Import Administration.