2011-16067. Certain Welded Stainless Steel Pipes From the Republic of Korea: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Amended Final Results

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On May 26, 2011, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) results of redetermination as applied to respondent SeAH Steel Corporation (SeAH) pursuant to the CIT's remand order in SeAH Steel Corporation v. United States and Bristol Metals, Slip Op. 11-33 (March 29, 2011) (SeAH II). SeAH Steel Corporation v. United States, Court No. 09-00248 (Ct. Int'l Trade May 26, 2011) (SeAH III) (affirming the Department's Final Results of Redetermination Pursuant to Remand, Court No. 09-00248, dated April 26, 2011, available 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), as clarified by Diamond Sawblades Mfrs. Coalition v. United States, 612 F.3d. 1348 (Fed. Cir. 2010) (Diamond Sawblades), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's Final Results and is amending the final results of the administrative review of the antidumping duty order on certain welded stainless steel pipes from the Republic of Korea covering the period of review (POR) of December 1, 2006, through November 30, 2007 with respect to SeAH. See Certain Welded Stainless Steel Pipes From the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 74 FR 31242 (June 30, 2009) (Final Results) and accompanying Issues and Decision Memorandum.

DATES:

Effective Date: June 6, 2011.

FOR FURTHER INFORMATION CONTACT:

Myrna Lobo or Milton Koch, 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] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On June 30, 2009, the Department issued its final results in the antidumping duty review of certain welded stainless steel pipes from the Republic of Korea covering the POR of December 1, 2006, through November 30, 2007. See Final Results. SeAH challenged the following aspects of the Department's Final Results: (1) The decision to depart from its practice of using an annual cost averaging period and to instead rely on quarterly costs for the sales below cost test; (2) the decision not to apply its normal “90/60” day window period for comparing home market and U.S. sales; (3) the use of an adjusted weighted average annual cost recovery test that incorporated an indexing methodology; and (4) the application of the major input rule with regard to hot-rolled stainless steel coils purchased from a company affiliated with SeAH.

In SeAH Steel Corporation v. United States, 704 F. Supp. 2d 1353 (Ct. Int'l Trade 2010), the CIT affirmed the Department's decisions to rely on quarterly average costs and to not apply the “90/60” day window in making price-to-price comparisons. The CIT granted the Department's request for a voluntary remand to consider steel specification data for the major input analysis and remanded to the Department for further explanation the adjusted weighted average annual cost recovery test that incorporated an indexing methodology.

On September 17, 2010, the Department filed its first remand redetermination explaining its indexed cost recovery methodology in detail. The Department also determined in its remand redetermination that it was appropriate to consider SeAH's steel specification data in its major input analysis, and accordingly adjusted and recalculated the major input analysis conducted in the Final Results.

On March 29, 2011, the CIT concluded in SeAH II that the adjusted cost recovery methodology which was employed by the Department in the Final Results and further explained in the first remand redetermination, was inconsistent with the text of the cost recovery statutory provision. The Court directed the Department to employ a cost recovery test using an unadjusted annual weighted average per unit cost of production. The CIT also affirmed the Department's use of the steel specification data in the first remand redetermination with respect to the Department's major input analysis.

On April 26, 2011, the Department filed its second remand redetermination (Remand Results). In accordance with the Court's instructions, the Department recalculated SeAH's dumping margin by employing an unadjusted annual weighted average per unit cost of production for the POR in its cost recovery test.

On May 26, 2011, the CIT sustained the Department's Remand Results in SeAH III. As a result of the two remand redeterminations, SeAH's antidumping margin changed from 9.05 percent to 6.01 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, 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 holding in SeAH III, sustaining the Department's Remand Results, 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. The cash deposit rate will remain the company-specific rate established for the subsequent and most recent period during which the respondents were reviewed. See Certain Welded Stainless Steel Pipes From the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 75 FR 27987 (May 19, 2010).

Amended Final Results

Because there is now a final court decision with respect to SeAH, the dumping margin is:

Manufacturer/exporter	Margin (percent)
SeAH Steel Corporation (SeAH)	6.01

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 SeAH based on the revised assessment rates calculated by the Department.

This notice is issued and published in accordance with sections 516A(e), 751(a)(1), and 777(i)(1) of the Act.

Dated: June 20, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.