[Federal Register Volume 80, Number 180 (Thursday, September 17, 2015)]
[Notices]
[Pages 55834-55836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-23360]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-816]
Corrosion-Resistant Carbon Steel Flat Products From the Republic
of Korea: Notice of Court Decision Not in Harmony With Final Results of
Administrative Review and Notice of Amended Final Results of
Administrative Review Pursuant to Court Decision
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce
SUMMARY: On August 31, 2015, the United States Court of International
Trade (the Court) sustained the Department of Commerce's (Department)
Final Remand Redetermination pertaining to the 19th administrative
review of corrosion-resistant carbon steel flat products (CORE) from
the Republic of Korea (Korea).\1\
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\1\ See Dongbu Steel Co., Ltd. v. United States, CIT Consol.
Court No. 14-00098, Slip Op. 15-99 (August 31, 2015); Final Results
of Redetermination Pursuant to Court Remand, Court No. 14-00098,
dated July 24, 2015 (Final Remand Redetermination); and Dongbu Steel
Co. v. United States, 61 F. Supp. 3d 1377 (Ct. Int'l Trade 2015)
(Remand Order).
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Consistent with the decision of the United States Court of Appeals
for the Federal Circuit (CAFC) in Timken,\2\ as
[[Page 55835]]
clarified by Diamond Sawblades,\3\ the Department is notifying the
public that the final judgment in this case is not in harmony with the
Department's final results of the 19th administrative review of CORE
from Korea, and that it is amending the final results with respect to
Dongbu Steel Co., Ltd. (Dongbu) and Union Steel Manufacturing Co., Ltd.
(Union Steel).\4\ The period of review (POR) is August 1, 2011, through
February 14, 2012.\5\
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\2\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\3\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\4\ See Corrosion-Resistant Carbon Steel Flat Products From the
Republic of Korea: Final Results of Antidumping Duty Administrative
Review; 2011-2012, 79 FR 17503 (March 28, 2014) (Final Results), and
accompanying Issues and Decision Memorandum (I&D Memo).
\5\ The period of review ends on February 14, 2012 because the
antidumping duty order on CORE from Korea was revoked effective on
this date. See Corrosion-Resistant Carbon Steel Flat Products from
Germany and the Republic of Korea: Revocation of Antidumping and
Countervailing Duty Orders, 78 FR 16832 (March 19, 2013) (CORE
Revocation).
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DATES: Effective Date: September 10, 2015.
FOR FURTHER INFORMATION CONTACT: Stephanie Moore, AD/CVD Operations
Office III, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC, 20230; telephone: (202) 482-
3692.
SUPPLEMENTARY INFORMATION:
Background
On September 26, 2012, the Department initiated an administrative
review of the antidumping duty order on CORE from Korea for the period
August 1, 2011, through July 31, 2012.\6\ On March 19, 2013, as a
result of the International Trade Commission's determination in the
third sunset review, the Department published a notice that the
antidumping duty order on CORE from Korea would be revoked, but that it
would complete any pending reviews of entries made prior to February
14, 2012, the effective date of revocation.\7\ For the Preliminary
Results, published on September 9, 2013, the Department shortened the
POR for the ongoing administrative review to reflect the effective date
of revocation of the antidumping order.\8\ In its preliminary dumping
calculations, the Department truncated the sales databases to conform
to the shortened POR. However, in conducting the sales below cost and
cost recovery tests to determine the pool of home market sales
available for the calculation of normal value, the Department used the
cost of production database submitted by Dongbu covering the original
August 1, 2011, through July 31, 2012, review period. For the Final
Results, the Department continued to use Dongbu's weighted-average cost
data for the full-year POR in its antidumping calculations.\9\ The
Department also used Dongbu's weighted-average dumping margin as the
rate for non-examined respondent Union Steel, because it was the only
rate that was not zero, de minimis, or based on total facts
available.\10\
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\6\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in Part, 77 FR
59168 (September 26, 2012).
\7\ See Corrosion-Resistant Carbon Steel Flat Products from
Germany and the Republic of Korea: Revocation of Antidumping and
Countervailing Duty Orders, 78 FR 16832 (March 19, 2013);
Determinations: Corrosion-Resistant Carbon Steel Flat Products from
Germany and Korea, 78 FR 15376 (March 11, 2013).
\8\ See Corrosion-Resistant Carbon Steel Flat Products from the
Republic of Korea: Preliminary Results of Administrative Review, 78
FR 55057 (September 9, 2013), and accompanying Preliminary Decision
Memorandum (Preliminary Results).
\9\ See Final Results, and accompanying I&D Memo at Comment 1.
\10\ See Final Results, 79 FR at 17504 & n.11.
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Before the Court, Dongbu and Union Steel challenged the
Department's determination to use the 12-month cost of production data
in both the cost recovery and sales below cost tests, arguing that the
language of the cost recovery test in section 773(b)(2)(D) of the
Tariff Act of 1930, as amended (the Act) requires that prices be
measured for cost recovery against the weighted-average cost of
production for the shortened POR, and that the Department accordingly
should have requested new cost data for the revised POR and
recalculated the weighted-average dumping margin.\11\ Dongbu and Union
Steel further argued that the Department's use of costs outside the POR
in the sales below cost test was unlawful because the statute requires
that the cost of production ``reasonably reflect the costs associated
with the production and sale of the merchandise, during the period of
review.'' \12\
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\11\ See Remand Order, 61 F. Supp. 3d at 1381.
\12\ Id., at 1388.
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In its Remand Order, the Court held that the language of the
statute ``unambiguously prohibited the Department from using cost data
for a period other than the POR to calculate the weighted average cost
of production for purposes of the cost recovery test,'' and that
``{n{time} othing in the statutory framework contradicts the cost
recovery test's plain language regarding the POR.'' \13\ The Court
rejected the Department's remaining arguments regarding the cost
recovery test provision.\14\
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\13\ Id., at 1384.
\14\ Id., at 1385-88.
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In addition, the Court agreed that the Department has discretion to
include costs outside of the POR in conducting the sales below cost
test, but found the Department's explanation as to why it included
post-review period cost data inadequate, and remanded to the Department
to ``explain its decision in this case that the costs incurred after
the POR reasonably reflect the costs of the product under review.''
\15\
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\15\ Id., at 1388-90.
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After reopening the record to obtain cost of production data
reflecting the revised POR from Dongbu, issuing a draft remand
redetermination, and soliciting comments, the Department issued the
Final Remand Redetermination on July 24, 2015. In the Final Remand
Redetermination, the Department modified its dumping calculations by
comparing Dongbu's home market sales against cost data from the revised
POR to determine whether such sales were made at prices that would
provide for the recovery of costs.\16\ The Department relied on this
same cost data in administering the sales below cost test for
Dongbu.\17\ Finally, the Department assigned Dongbu's revised dumping
margin to Union Steel.\18\
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\16\ See Final Remand Redetermination at 5.
\17\ Id.
\18\ Id., at 6.
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Timken Notice
In Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, the
CAFC held that, pursuant to section 516A(e) of 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 Court's judgment
sustaining the Final Remand Redetermination constitutes a final
decision of the Court that is not in harmony with the Department's
Final Results. This notice is published in fulfillment of the
publication requirement 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. In the event the Court's ruling
is not appealed or, if appealed, upheld by the CAFC, the Department
will instruct U.S. Customs and Border Protection (CBP) to assess
antidumping duties on unliquidated entries of subject
[[Page 55836]]
merchandise exported by the producers and/or exporters listed below at
the rates listed below.
Amended Final Results
Because there is now a final court decision, the Department is
amending the Final Results with respect to Dongbu and Union Steel,
plaintiffs in this case. The revised weighted-average dumping margins
for these producers/exporters during the period August 1, 2011, through
February 14, 2012, are as follows:
Weighted-Average Dumping Margins
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Weighted-average
Producer/Exporter dumping margin
(percent)
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Dongbu................................................ 5.38
Union Steel........................................... 5.38
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Cash Deposit Requirements
The Department notified CBP to discontinue the collection of cash
deposits on entries of the subject merchandise, entered or withdrawn
from warehouse, on or after February 14, 2012.\19\ Therefore, no cash
deposit requirements will be imposed in response to these amended final
results.
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\19\ See CORE Revocation, 78 FR at 16833.
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This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: September 10, 2015.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-23360 Filed 9-16-15; 8:45 am]
BILLING CODE 3510-DS-P