E7-17115. Oil Country Tubular Goods from Mexico: Notice of NAFTA Panel Decision Not In Harmony With Final Results of Sunset Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On July 19, 2007, a Bi-National Panel (“Panel”) constituted under the North American Free Trade Agreement (“NAFTA”) affirmed the Department of Commerce's (“the Department's”) redetermination on remand of the final results of the sunset review on oil country tubular goods from Mexico. See In the Matter of: Oil Country Tubular Goods from Mexico; Final Results of Sunset Review of the Antidumping Duty Order, USA-MEX-2001-1904-03 (July 19, 2007) (“NAFTA Final Decision”). The Panel issued its Notice of Final Panel Action in the above-referenced matter on July 30, 2007. This case arises out of the Department's determination in the final results of the first sunset review covering entries for the five years after August 11, 1995. See Oil Country Tubular Goods (“OCTG”) from Mexico: Final Results of Sunset Review of Antidumping Order, 66 FR 14131 (March 9, 2001) and accompanying Issues and Decision Memorandum (“Final Results”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that the NAFTA Final Decision and the Notice of Final Panel Action are not in harmony with the Department's Final Results.

EFFECTIVE DATE:

August 9, 2007

FOR FURTHER INFORMATION CONTACT:

John Drury or Angelica Mendoza, AD/CVD Operations, Office 7, Import Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

In the Final Results, the Department determined that revocation of the antidumping duty order would likely lead to the continuation or recurrence of dumping. Subsequent to the completion of the sunset review, Tubos de Aceros de Mexico, S.A. (“TAMSA”) challenged the Department's findings and requested that a Bi-National Panel review the final determination. From 2005 to 2007, the Panel issued multiple decisions remanding various aspects of the Department's decision to the agency. See Panel decisions of February 11, 2005, February 3, 2006, July 28, 2006, and January 17, 2007. In response to the Panel's January 17, 2007, order, the Department analyzed the redetermination on remand and found that TAMSA's 'other factors' did not outweigh the likelihood presumption of dumping due to the virtual cessation of exports of OCTG by TAMSA during the five-year review period. The Panel disagreed with the Department's factual and legal conclusions with regard to the issues, and remanded the review to the Department on June 1, 2007, with instructions that the Department “make a determination consistent with the decision of this Panel to the effect that the evidence on the record does not support a finding of likelihood of recurrence or continuation of dumping upon revocation of the antidumping duty order.” See In the Matter of: Oil Country Tubular Goods from Mexico; Final Results of Sunset Review of the Antidumping Duty Order, USA-MEX-2001-1904-03 (June 1, 2007) at page 27.

Consistent with the Panel's instructions, the Department issued a determination on June 11, 2007, where the Department “made a determination to the effect that the evidence on the record does not support a finding or likelihood of recurrence or continuation of dumping upon revocation of the antidumping duty order.” See Fifth Redetermination on Remand, Oil Country Tubular Goods from Mexico: Sunset Review, (June 11, 2007) at page 2. On July 19, 2007, the Panel affirmed the Department's fifth remand redetermination. See NAFTA Final Decision. The Panel issued its Notice of Final Panel Action on July 30, 2007.

In Timken, the Federal Circuit 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. Timken, 393 F.2d at 341. Because NAFTA panels step into the shoes of the courts they are replacing, they must apply the law of the national court that would otherwise review the administrative determination. Therefore, we are publishing notice that the Panel's Notice of Final Panel Action and its NAFTA Final Decision are 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 for requesting an Extraordinary Challenge Committee (“ECC”). If an ECC request is not filed, or if an ECC request is filed, and the Panel's decision is upheld, the Department will instruct U.S. Customs and Border Protection to liquidate the subject merchandise without regard to dumping duties.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: August 21, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.