Court Decision: Certain Cut-to-Length Carbon Steel Plate From Sweden

DEPARTMENT OF COMMERCE

International Trade Administration

[A-401-805]

Court Decision: Certain Cut-to-Length Carbon Steel Plate From

Sweden

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

ACTION: Notice of court decision.

-----------------------------------------------------------------------

SUMMARY: On January 13, 1998, the United States Court of International

Trade (``CIT'') affirmed the determination made by the Department of

Commerce (``the Department'') pursuant to a voluntary remand of the

final results of administrative review in the case of certain cut-to-

length carbon steel plate from Sweden. SSAB Svenkst Stal AB v. United

States, Slip Op. 98-3 (CIT January 13, 1998). In the remand

determination, the Department determined that three types of rebates

given to certain home market customers should be treated as direct

selling expenses for which a circumstance-of-sale (``COS'') adjustment

is appropriate.

EFFECTIVE DATE: January 23, 1998.

FOR FURTHER INFORMATION CONTACT: Carrie Blozy or Stephen Jacques,

Import Administration, International Trade Administration, U.S.

Department of Commerce, 14th Street and Constitution Avenue, N.W.,

Washington, D.C. 20230; telephone: (202) 482-0374 or 482-1391,

respectively.

SUPPLEMENTARY INFORMATION:

Background

On April 9, 1996, the Department published its final results of

administrative review in the case of Certain Cut-to-Length Carbon Steel

Plate from Sweden; Final Results of Antidumping Duty Administrative

Review, 61 FR 15772 (``Final Results''). The review covered one

manufacturer/exporter, SSAB Svenskt Stal AB (``SSAB''), of the subject

merchandise for the period February 4, 1993, through July 31, 1994. In

the final results, the Department reclassified SSAB's reported rebates

as post-sale price adjustments (``PSPAs'') as there was no evidence

that the buyer was aware of the conditions to be fulfilled and the

approximate amount of the rebates at the time of sale. Further, because

information on the record for this review indicated that these PSPAs

were made and reported on a customer-specific, not transaction-

specific, basis, the Department disallowed these PSPAs as direct

adjustments and treated them, instead, as indirect expenses.

Based on the decision in Torrington Co. v. United States, 82 F.3d

1039 (Fed. Cir. 1996), the Department requested a remand to reconsider

the propriety of making a COS adjustment for these PSPAs. Through an

examination of the record, the Department found that all rebates were

made on either a fixed or constant percentage-of-sales value or on a

fixed and constant Swedish Kroner-per-ton of total tonnage sold.

Therefore, the Department determined that these PSPAs qualified as

direct selling expenses warranting a COS adjustment to foreign market

value.

The Department filed its redetermination with the CIT on October

29, 1997. See Final Results of Redetermination on Remand, SSAB Svenskt

Stal AB v. United States, Court No. 96-05-01372, Slip Op. 97-123

(August 29, 1997) (``Remand Results''). In its Remand Results, the

Department stated that it would ``instruct the Customs Service to

collect cash deposits at the above rate [of 7.25%] for entries from

SSAB of cut-to-length carbon steel plate from Sweden'' (Remand Results

at 4). Since then, parties and the CIT have agreed that such

instructions would be incorrect because the Department has published

subsequent administrative reviews that govern future cash deposits.

Therefore, cash deposit rates will be governed not by the rate

published in the Remand Results, but by the most recently completed

administrative review, according to the Department's normal procedures.

See Certain Cut-to-Length Carbon Steel Plate from Sweden; Final Results

of Antidumping Duty Administrative Review, 62 FR 46947 (September 5,

1997). On January 13, 1998, the CIT affirmed the Department's remand

determination (with the exception noted above).

As a result of the remand determination, the final dumping margin

for the period February 4, 1993, through July 31, 1994 is as follows:

------------------------------------------------------------------------

Margin

Manufacturer/exporter (percent)

------------------------------------------------------------------------

SSAB....................................................... 7.25

------------------------------------------------------------------------

In its decision in Timken Co. v. United States, 893 F.2d 337 (Fed.

Cir. 1990) (``Timken''), the United States Court of Appeals for the

Federal Circuit held that, pursuant to 19 U.S.C. section 1516a(e), the

Department must publish a notice of a court decision which is not ``in

harmony'' with a Department determination, and must suspend liquidation

of entries pending a ``conclusive'' court decision. The CIT's decision

in SSAB Svenskt Stal AB on January 13, 1998, constitutes a decision not

in harmony with the Department's final results of review. Publication

of this notice fulfills the Timken requirement. Accordingly, the

Department will continue to suspend liquidation pending the expiration

of the period of appeal, or, if appealed, until a ``conclusive'' court

decision.

Dated: February 23, 1998.

Robert S. LaRussa,

Assistant Secretary for Import Administration.

[FR Doc. 98-5309 Filed 2-27-98; 8:45 am]

BILLING CODE 3510-DS-P