E5-3473. Certain Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Notice of Court Decision and Suspension of Liquidation

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 14, 2005, in Alloy Piping Products, Inc., Flowline Division, et al. v. United States, Slip Op. 05-69, (“Alloy Piping II”), the Court of International Trade (“CIT”) affirmed the Department of Commerce's (the “Department”) Final Results of Determination Pursuant to Remand (“Remand Results”), dated February 14, 2005. Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (“CAFC”) 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, where appropriate, 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 U.S. Customs and Border Protection (“Customs”) to liquidate all relevant entries from Ta Chen Stainless Steel Pipe, Ltd. (“Ta Chen”) and revise the cash deposit rates as appropriate.

EFFECTIVE DATE:

July 1, 2005.

FOR FURTHER INFORMATION CONTACT:

Alex Villanueva, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230, telephone [phone], fax [phone].

SUPPLEMENTARY INFORMATION:

Background

Following publication of the Final Results, Alloy Piping Products, Inc., Flowline Division, Markovitz Enterprises, Inc., Gerlin Inc., and Taylor Forge Stainless Inc., (the “Petitioners”) and Ta Chen, filed a lawsuit with the CIT challenging the Department's findings in Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan and Accompanying Issues and Decisions Memorandum; Final Results of 1999-2000 Administrative Review, 66 FR 65899, 65900 (December 21, 2001) (“Final Results”). In Alloy Piping v. United States, Slip Op. 04-134, (CIT 2004) (“Alloy Piping I”), the CIT instructed the Department to (1) reopen the record, seek additional relevant information regarding employee bonuses, and recalculate the general and administrative (“G&A”) expenses of Ta Chen; and (2) reconsider Ta Chen's U.S. indirect selling expenses and to account for all of Ta Chen's U.S. selling expenses incurred during fiscal year 1999. Specifically, regarding employee bonuses, the CIT instructed the Department to consider employee bonuses distributed directly from shareholders' equity, and paid by the company to its employees and management in its recalculation of the G&A expenses;

The Draft Final Results Pursuant to Remand (“Draft Results”) were released to parties on January 27, 2005. The Department received comments from interested parties on the Draft Results on February 1, 2005. There were no substantive changes made to the Remand Results as a result of comments received on the Draft Results. On February 14, 2005, the Department responded to the CIT's Order of Remand by filing the Remand Results. In its Remand Results, the Department reopened the record, sought additional relevant information regarding employee bonuses and recalculated the G&A expenses of Ta Chen to include bonuses to both employees and directors/supervisors. The Department also reconsidered Ta Chen's U.S. indirect selling expenses and determined that there was no need to add financial interest expenses to Ta Chen's U.S. indirect selling expenses. Thus, the Department did not change Ta Chen's U.S. indirect selling expenses.

As a result of the remand determination, the antidumping duty rate for Ta Chen was decreased from 6.11 to 6.10 percent. The CIT did not receive comments from either the Petitioners or Ta Chen.

On June 14, 2005, the CIT affirmed the Department's findings in the Remand Results. Specifically, the CIT upheld the Department reopening the record, seeking additional relevant information regarding employee bonuses, and recalculating the G&A expenses of Ta Chen and reconsidering Ta Chen's U.S. indirect selling expenses. See Alloy Piping II.

The only revisions made to the Final Results were revisions to the calculation of Ta Chen's G&A expenses, as noted above. This revision resulted in a change in Ta Chen's margin.

Suspension of Liquidation

The CAFC, in Timken, held that the Department must publish notice of a decision of the CIT or the CAFC which is not “in harmony” with the Department's final determination or results. Publication of this notice fulfills that obligation. The CAFC 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 June 14, 2005, decision, or, if that decision is appealed, pending a final decision by the CAFC. The Department will instruct Customs to revise cash deposit rates, as appropriate, and to liquidate relevant entries covering the subject merchandise effective (insert date of FR publication), in the event that the CIT's ruling is not appealed, or if appealed and upheld by the CAFC.

Dated: June 24, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.