2010-3266. 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 January 19, 2010, 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 order in Nucor Corporation, Gerdau Ameristeel Corporation, and Commercial Metals Company v. United States and Icdas Celik Enerji Tersane ve Ulasim Sanayi A.S., Court No. 05-00616, Slip Op. 10-6 (Jan. 19, 2010). See Results of Redetermination Pursuant to Remand, dated November 6, 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).

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 the final results of the administrative review. See Final Results. In the final results, the Department: (1) Reversed its preliminary decision with respect to the U.S. date of sale for ICDAS and used the contract date as the date of sale for ICDAS's U.S. sales, rather than the invoice date, because it determined that the material terms of sale were established at the contract date; (2) computed ICDAS's cost of production (COP) using annual-average, rather than quarterly, costs; and (3) defined the universe of U.S. sales transactions examined during the administrative review to rely on the date that subject merchandise entered the customs territory of the United States, rather than the date that subject merchandise was sold here.

On November 18, 2005, the Department requested a voluntary remand in order to reconsider the date-of-sale issue. On December 15, 2005, the CIT granted the Department's request to reconsider whether, based upon the record evidence, the Department reasonably applied its date-of-sale methodology to the facts at issue.

On January 31, 2006, the Department issued its final results of redetermination pursuant to the CIT's December 15, 2005, ruling. In its remand results, the Department determined that the invoice date is the appropriate date of sale for ICDAS's U.S. sales in the 2003-2004 administrative review.

On March 24, 2009, the CIT again remanded this issue to the Department, requiring that the Department provide a more in-depth analysis as to why the use of invoice date as U.S. date of sale was appropriate. In addition, the CIT remanded two additional issues, at the Department's request, related to the calculation of ICDAS's COP and an explanation for the methodology used to determine the universe of U.S. sales examined in the review.

On November 6, 2009, the Department issued its final results of redetermination pursuant to the CIT's March 24, 2009, ruling. In its remand redetermination the Department explained that, in accordance with the CIT's instructions, it reconsidered the issues contained in the CIT's March 24, 2009, ruling and determined that it was appropriate to: (1) Base ICDAS's universe of sales on entry date; (2) use invoice date as the date of sale for ICDAS's U.S. sales; and (3) use ICDAS's quarterly-average costs in its margin calculations. On January 19, 2010, the CIT affirmed the Department's November 6, 2009, remand redetermination.

The Department's redetermination resulted in changes to the Final Results weighted-average margin for ICDAS from 0.16 percent to 0.70 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 January 19, 2010, constitutes a final decision of that Court that is not in harmony with the Department's Final Results. Accordingly, this notice is published in fulfillment of the publication requirements of Timken, with an effective date of January 29, 2010, (i.e., 10 days following the CIT's ruling). 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 ICDAS 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: February 12, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.