E7-18991. Implementation of the Findings of the WTO Panel in US-Zeroing (EC); Notice of Determination Under Section 129 of the Uruguay Round Agreements Act: Antidumping Duty Order on Stainless Steel Sheet and Strip in Coils From Italy

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 31, 2007, the U.S. Trade Representative instructed the Department of Commerce (the Department) to implement the Department's findings under section 129 of the Uruguay Round Agreements Act (URAA) regarding the offsetting of dumped sales with non-dumped sales in the above-referenced investigation involving average-to-average transactions. The Department issued its finding on August 20, 2007, for stainless steel sheet and strip in coils from Italy (Italy SSSS) for ThyssenKrupp Acciai Speciali Terni S.P.A. and ThyssenKrupp AST USA, Inc. (collectively “TKAST”).^[1] The Department hereby implements that finding.

DATES:

The effective date of this determination is August 31, 2007.

FOR FURTHER INFORMATION CONTACT:

Daniel O'Brien, William Kovatch, or Michael Rill, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: [phone], or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On February 22, 2007, the Department initiated twelve proceedings under section 129 of the URAA to implement the WTO dispute settlement panel's report in United States—Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”) (WT/DS294). See Implementation of the Findings of the WTO Panel in U.S. Zeroing (EC): Notice of Initiation of Proceedings Under Section 129 of the URAA; Opportunity to Request Administrative Protective Orders; and Proposed Timetable and Procedures, 72 FR 9306 (March 1, 2007). In each proceeding, the Department recalculated the weighted-average dumping margin, applying the calculation methodology described in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final Modification, 71 FR 77722 (December 27, 2006).

On February 26, 2007, the Department issued its preliminary determinations and requested comments. See Memorandum from Stephen J. Claeys, Deputy Assistant Secretary, to David M. Spooner, Assistant Secretary, Regarding Section 129 Determinations: Calculation of the Weighted-Average Margins dated February 26, 2007 (Preliminary Determination). TKAST, Allegheny Ludlum Corporation, Armco Inc., J&L Specialty Steel, Inc., Washington Steel Division of Bethlehem Steel Corporation, the United Steelworkers of America, AFL-CIO/CLC, the Butler Armco Independent Union, and the Zanesville Armco Independent Organization, Inc., (collectively, “petitioners”) and the European Union submitted case briefs with respect to Italy SSSS. TKAST and petitioners submitted rebuttal briefs. In its comments to the Department, TKAST alleged clerical errors in the Department's margin calculation in the less-than-fair-value investigation and Preliminary Determination. Because of these allegations, we placed the original less-than-fair-value investigation record onto the record of this 129 proceeding and invited interested parties to provide comments on computational errors that may have been present in the Department's recalculation of the weighted-average dumping margin with respect to TKAST. See the Department's Memo to the File from Angelica Mendoza, Program Manager, and Stephen Bailey, Case Analyst, through Richard Weible, Office Director, AD/CVD Operations/OFC 7, to the File, titled Placement of Record from the Less-Than-Fair-Value Investigation onto the Record of the Section 129 Determination, dated April 19, 2007. The Department also held two public hearings at the request of TKAST. Because of the two hearings, and the placement of the original less-than-fair-value investigation record onto the record of this 129 proceeding, the Department was delayed in issuing its final determination with respect to Italy SSSS.

On August 20, 2007, the Department issued its final results for the Section 129 Determination with respect to Italy SSSS. See the Department's Memo to David M. Spooner, Assistant Secretary for Import Administration from Gary Taverman, Acting Deputy Assistant Secretary for Import Administration, titled Issues and Decision Memorandum for the Final Results of the Section 129 Determination, dated August 20, 2007 (Issues and Decision Memorandum). On August 28, 2007, TKAST submitted an allegation of ministerial errors and on August 31, 2007, petitioners filed their response to TKAST's ministerial error submission. The Department intends to address all ministerial error comments in a subsequent memorandum.

On August 24, and August 28, 2007, consistent with section 129(b)(3) of the URAA, the U.S. Trade Representative held consultations with the Department and the appropriate congressional committees with respect to this determination. On August 31, 2007, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the URAA, the U.S. Trade Representative directed the Department to implement this determination.

Nature of the Proceedings

Section 129 of the URAA governs the nature and effect of determinations issued by the Department to implement findings by WTO dispute settlement panels and the Appellate Body. Specifically, section 129(b)(2) provides that “notwithstanding any provision of the Tariff Act of 1930,” within 180 days of a written request from the U.S. Trade Representative, the Department shall issue a determination that would render its actions not inconsistent with an adverse finding of a WTO panel or the Appellate Body. See 19 U.S.C. 3538(b)(2). The Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, 103d Cong. (1994) (SAA), reprinted in 1994 U.S.C.C.A.N. 4040, variously refers to such a determination by the Department as a “new,” “second,” and “different” determination. See SAA at 1025, 1027; 19 U.S.C.C.A.N. at 4313-14. After consulting with the Department and the appropriate congressional committees, the U.S. Trade Representative may direct the Department to implement, in whole or in part, the new determination made under section 129.

See 19 U.S.C. 3538(b)(4). Pursuant to section 129(c), the new determination shall apply with respect to unliquidated entries of the subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after the date on which the U.S. Trade Representative directs the Department to implement the new determination. See 19 U.S.C. 3538(c). The new determination is subject to judicial review separate and apart from judicial review of the Department's original determination. See 19 U.S.C. 1516a(a)(2)(B)(vii).

Analysis of Comments Received

The issues raised in the case and rebuttal briefs submitted by interested parties to this proceeding are addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. The Issues and Decision Memorandum is on file in the Central Records Unit (CRU), room B-099 of the Department of Commerce main building and can be accessed directly at http://ia.ita.doc.gov/​frn. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content. A list of the issues addressed in the Issues and Decision Memorandum is appended to this notice.

Final Dumping Margins

The margin for TKAST decreases from 11.23 percent to 2.11 percent. The all-others rate changes from 11.23 percent to 2.11 percent.

Cash Deposit and Continuation of the Suspension of Liquidation

On August 31, 2007, in accordance with sections 129(b)(4) and 129(c)(1)(B) of the URAA, the U.S. Trade Representative, after consulting with the Department and Congress, directed the Department to implement this determination.

Therefore, we will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of subject merchandise from all exporters or producers. CBP shall continue to require a cash deposit equal to the estimated amount by which the normal value exceeds the U.S. price. The suspension of liquidation instructions will remain in effect until further notice. The Section 129 Determination all-others rate will be the new cash deposit rate for all exporters of subject merchandise for whom the Department has not calculated an individual rate, which is 2.11 percent. The cash deposit rates will remain unchanged for those companies whose cash deposit rates since the original investigation have been superseded by administrative reviews.

This Section 129 Determination is issued and published in accordance with section 129(c)(2)(A) of the URAA. See 19 U.S.C. 3538(c)(2)(A).

Dated: September 20, 2007.

Stephen J. Claeys,

Deputy Assistant Secretary for Import Administration.

Appendix I—Issues Raised in the Issues and Decision Memorandum

Comment 1: Clerical Error Allegations.

Comment 2: Whether the Department Has the Authority to Implement the WTO Appellate Body Decision.

Comment 3: The Court of International Trade Remand.

Footnotes

1.  On April 30, 2007, the Department implemented the findings of the World Trade Organization (WTO) with respect to eleven investigations challenged by the European Communities. For the reasons detailed below, the final determination for stainless steel sheet and strip in coils from Italy was not included in the April 30, 2007, final determinations. See Implementation of the Findings of the WTO Panel in US-Zeroing (EC): Notice of Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations and Partial Revocations of Certain Antidumping Duty Orders, 72 FR 25261 (May 4, 2007) (Implementation Notice).