E6-7603. Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products from Japan: Notice of Amended Final Determination Pursuant to Court Decision.

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On February 22, 2006, the United States Court of International Trade (CIT) issued an order affirming the Department of Commerce's (Department) Final Results of Redetermination Pursuant to Court Remand filed by the Department of Commerce on December 2, 2003 (Redetermination). See Nippon Steel Corporation v. United States, SLIP OP. 06-23 (CIT 2006). The remand redetermination arose out of the final determination of sales at less than fair value in the antidumping duty investigation of hot-rolled flat-rolled carbon-quality steel products from Japan. Because all litigation in this matter has now concluded, the Department is issuing its amended final determination in accordance with the CIT's decision.

EFFECTIVE DATE:

May 18, 2006.

FOR FURTHER INFORMATION CONTACT:

Kimberley Hunt, AD/CVD Operations, Office 6, 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 May 6, 1999, the Department published a 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) (Final Determination) covering the period of investigation (POI) July 1, 1997 through June 30, 1998. On June 29, 1999, the antidumping duty order was published. See Notice of the Antidumping Duty Order: Certain Hot-Rolled Flat-Rolled Carbon-Quality Steel Products From Japan, 64 FR 34778 (June 29, 1999). Both Bethlehem Steel Corporation, U.S. Steel Group, Ispat Inland, Inc., and LTV Steel Company, Inc. (collectively, Petitioners), and Nippon Steel Corporation (Nippon), a respondent, contested various aspects of the Final Determination.

On October 26, 2000, the CIT issued its opinion and remanded to the Department an issue in the Final Determination for reconsideration: specifically, the CIT asked the Department to assess its rejection of Nippon's untimely submitted weight conversion factor and its assignment of a margin to the affected sales based upon adverse facts available and instructed the Department to determine whether Nippon acted to the best of its ability according to 19 U.S.C. § 1677e(b) in submitting the requested weight conversion factor the Department. The court also instructed the Department to issue a policy statement on ex parte memoranda. Additionally, the CIT upheld the Department on several issues. Only one is pertinent here; namely, that the CIT affirmed the Department's methodology for determining the starting U.S. price from Nippon's invoices, which converted yen paid from the buyer to Nippon into U.S. dollars and used the converted amount from the invoice as the U.S. starting price, as opposed to using the U.S. dollar amount Nippon had submitted in its response, which had been negotiated between the parties and was an agreed upon U.S. dollar amount. See Nippon Steel Corporation v. United States, 118 F. Supp. 2d 1366 (CIT 2000) (Nippon I).

Pursuant to the CIT's decision, the Department issued its remand redetermination concluding that Nippon “failed to cooperate by not acting to the best of its ability” and again assigned a margin to the affected sales based upon facts available, as opposed to using the actual, untimely reported weight conversion factor submitted by Nippon. See Final Results of Redetermination Pursuant to Court Remand: Nippon Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 (December 8, 2000) (First Remand Redetermination) (available at http://ia.ita.doc.gov).

Nippon contested various aspects of the Department's First Remand Redetermination. On April 20, 2001, the CIT issued its opinion regarding the Department's First Remand Redetermination and remanded, in part, the Department's results. The CIT found that the ex parte policy statement conformed to the requirements of the court's injunction regarding the placement on the record of memoranda detailing ex parte communications between parties and Department officials. However, the court remanded the case to the Department, specifically stating that it was not remanding the case for further examination of the adverse inference issue. Rather, the court stated that the Department's conclusion that Nippon “failed to cooperate by not acting to the best of its ability” was unsupported by substantial evidence and instructed the Department to re-calculate Nippon's dumping margin without using adverse facts available. See Nippon Steel Corporation v. United States, 146 F. Supp. 2d 835 (CIT 2001) (Nippon II).

Pursuant to the CIT's decision, the Department changed its analysis of Nippon's weight conversion factor and selected weighted-average margins for theoretical weight sales as non-adverse facts available. See Final Results of Redetermination Pursuant to Court Remand: Nippon Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 (June 19, 2001) (Second Remand Redetermination) (available as part of the CIT court record). Nippon contested the Department's Second Remand Redetermination. On October 12, 2001, the CIT issued its opinion regarding the Department's Second Remand Redetermination, remanding the case to the Department to devise a new approach to the determination of neutral facts available with respect to Nippon's weight conversion factor, stating that the Department unreasonably selected weighted-average margins for theoretical weight sales as non-adverse facts available, where the margins reflected a weight conversion factor that was implausible. See Nippon Steel Corporation v. United States, SLIP OP. 01-122 (CIT October 12, 2001) (Nippon III).

Pursuant to the CIT's decision, the Department issued its third redetermination and modified its approach by substituting a margin based on a weighted average of all reported U.S. actual-weight sales. See Final Results of Redetermination Pursuant to Court Remand: Nippon Steel Corporation v. United States, Consol. Ct. No. 99-08-00466 (November 13, 2001) (Third Remand Redetermination) (available as part of the CIT court record). Nippon contested the Department's Third Remand Redetermination, stating that the Department did not meaningfully change its methodology, as ordered by the CIT in Nippon III. On December 27, 2001, the CIT issued its opinion regarding the Department's Third Remand Redetermination, stating that it “refuse{d} to further extend litigation by reopening the issue” and ordering the Department to use Nippon's untimely reported weight conversion factor. See Nippon Steel Corporation v. United States, SLIP OP. 01-152 (CIT December 27, 2001) (Nippon IV).

Both the U.S. Government and certain petitioners, Bethlehem Steel and U.S. Steel Group (collectively Bethlehem), appealed the decision to the United States Court of Appeals for the Federal Circuit (CAFC). Specifically, both appellants argued that the CIT erred in rejecting the Department's original determination to apply partial adverse facts available with respect to Nippon's weight conversion factor because the Department's determination was supported by substantial evidence. Bethlehem separately argued that the CIT erred by holding that the Department's determination of a yen-based U.S. starting price to be used for Nippon's U.S. sales was supported by substantial evidence.

The CAFC held that the Department's application of partial adverse facts available was supported by substantial evidence and otherwise in accordance with the law but that the Department's methodology of calculating the U.S. starting price was not in accordance with law. Nippon Steel Corporation v. United States, 337 F.3d 1373, 1385 (Fed. Cir. 2003). The CAFC reversed the CIT's decision to the extent that it held the opposite on any of these issues. The Department filed its fourth remand redetermination on December 2, 2003 and changed its methodology according to the CAFC's reversal of the CIT's decision on U.S. starting price and the use of partial adverse facts available for Nippon's weight conversion factor. See Final Results of Redetermination Pursuant to Court Remand Nippon Steel Corporation v. United States 99-08-00466 (December 2, 2003) (Fourth Remand Redetermination). On February 22, 2006, the CIT sustained the Department's Fourth Remand Redetermination. See Nippon Steel Corporation v. United States, SLIP OP. 06-23 (CIT February 22, 2006).

In addition to the court decisions discussed above, the Government of Japan (GOJ) appealed, among other issues, the Department's application of adverse facts available for Nippon's weight conversion factor to the World Trade Organization (WTO). The GOJ did not appeal the U.S. starting price issue to the WTO. In its report, the WTO Appellate Body ruled that the Department acted inconsistently with the Antidumping Agreement in applying “facts available” to Nippon with regard to the reported weight conversion factor and found that the Department should have used Nippon's untimely submitted, actual weight conversion factor. The Department implemented the WTO Appellate Body's findings in a Section 129 Determination. See Notice of Determination Under Section 129 of the Uruguay Round Agreement Act: Antidumping Measures on Certain Hot-Rolled, Flat-Rolled Carbon Quality Steel Products from Japan, 67 FR 71936, 71939 (December 3, 2002) (129 Determination). The effective date of the 129 Determination is November 22, 2002.

Because the effective date of the 129 Determination predates the Fourth Remand Redetermination, the Fourth Remand Redetermination includes an analysis of the effect of the 129 Determination on the antidumping duty margin. See Fourth Remand Redetermination at 2. Accordingly, the Department calculated two margins for Nippon in the Fourth Remand Redetermination. The first margin, 21.12 percent, reflects the use of the same adverse inference made in the original investigation with respect to the margins for Nippon's theoretical weight sales, but changes the starting price for U.S. sales from converted yen to reported U.S. dollars. This margin applies to Nippon's unreviewed entries made prior to November 22, 2002, the effective date of the 129 Determination. The second margin, 19.95 percent, reflects the various changes made to the original investigation margin as a result of the 129 Determination and includes the use of Nippon's actual reported weight conversion factor, but also reflects the use of the reported U.S. dollar as the U.S. starting price. This margin applies to Nippon's unreviewed entries made on or after the effective date of the 129 Determination, November 22, 2002.

AMENDED FINAL DETERMINATION

Because no party appealed the CIT's February 22, 2006 decision, there is now a final and conclusive decision in the court proceeding and we are thus amending the Final Determination to reflect the results of the Fourth Remand Redetermination, which addresses the CAFC's ruling as well as the changes to the margin pursuant to the 129 Determination. The recalculated margins are as follows:

Manufacturer/exporter	Weighted-average margin (percent)
From February 19, 1999 through November 21, 2002
Nippon Steel Corporation	21.12%%
On or after November 22, 2002
Nippon Steel Corporation	19.95%%

Accordingly, pursuant to 19 U.S.C. 1516a(e) and effective as of the publication of this notice, the Department will instruct U.S. Customs and Border Protection (CBP) to terminate the suspension of liquidation and proceed with liquidation of all appropriate entries entered, or withdrawn from warehouse, for consumption, on or after February 19, 1999, and before November 22, 2002 (the effective date of the 129 Determination) at the rate of 21.12 percent, and all entries entered, or withdrawn from warehouse, for consumption on or after November 22, 2002 (the effective date of the 129 Determination) at the rate of 19.95 percent.

CASH DEPOSIT REQUIREMENTS

The Department will direct CBP to require, on or after the date of publication of this notice in the Federal Register, a cash deposit rate of 19.95 percent for the subject merchandise. This cash deposit requirement, when imposed, shall remain in effect until publication of the final results of an administrative review of this order.

This notice is issued and published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended.

Dated: May 12, 2006.

David M. Spooner,

Assistant Secretary for Import Administration.