Notice2022-23743
Welded Carbon Steel Standard Pipes and Tubes From India: Notice of Court Decision Not in Harmony With the Final Results of Antidumping Administrative Review; Notice of Amended Final Results
Primary source
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Published
November 1, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On October 24, 2022, the U.S. Court of International Trade (CIT) issued its final judgment in Garg Tube Export LLP and Garg Tube Limited v. United States, Court No. 20-00026, sustaining the U.S. Department of Commerce's (Commerce) second results of redetermination pertaining to the administrative review of the antidumping duty (AD) order on welded carbon steel standard pipes and tubes (pipe and tube) from India covering the period May 1, 2017, through April 30, 2018. Commerce is notifying the public that the CIT's final judgment is not in harmony with Commerce's final results of the administrative review, and that Commerce is amending the final results with respect to the weighted-average dumping margin assigned to Garg Tube Export LLP and Garg Tube Limited (collectively, Garg Tube).
Full Text
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<title>Federal Register, Volume 87 Issue 210 (Tuesday, November 1, 2022)</title>
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[Federal Register Volume 87, Number 210 (Tuesday, November 1, 2022)]
[Notices]
[Pages 65749-65750]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23743]
[[Page 65749]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-533-502]
Welded Carbon Steel Standard Pipes and Tubes From India: Notice
of Court Decision Not in Harmony With the Final Results of Antidumping
Administrative Review; Notice of Amended Final Results
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On October 24, 2022, the U.S. Court of International Trade
(CIT) issued its final judgment in Garg Tube Export LLP and Garg Tube
Limited v. United States, Court No. 20-00026, sustaining the U.S.
Department of Commerce's (Commerce) second results of redetermination
pertaining to the administrative review of the antidumping duty (AD)
order on welded carbon steel standard pipes and tubes (pipe and tube)
from India covering the period May 1, 2017, through April 30, 2018.
Commerce is notifying the public that the CIT's final judgment is not
in harmony with Commerce's final results of the administrative review,
and that Commerce is amending the final results with respect to the
weighted-average dumping margin assigned to Garg Tube Export LLP and
Garg Tube Limited (collectively, Garg Tube).
DATES: Applicable November 3, 2022.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov, AD/CVD Operations,
Office I, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-0665.
SUPPLEMENTARY INFORMATION:
Background
On January 16, 2020, Commerce published its Final Results of the
2017-2018 AD administrative review of welded carbon steel standard
pipes and tubes from India.\1\ In the Final Results, Commerce found
that a particular market situation (PMS) existed in India concerning
the cost of hot-rolled coil (an input into pipe and tube) and adjusted
Garg Tube's reported cost of production (COP) to account for this
PMS.\2\ Separately, Garg Tube purchased subject merchandise from
several unaffiliated suppliers and Commerce requested COP information
from two of Garg Tube's unaffiliated suppliers of pipe and tube, in
response to which each supplier refused to provide the requested COP
information. In the absence of COP information for the pipe and tube
produced by these suppliers, Commerce filled the gap in the record
(i.e., the missing COP data of these suppliers) using Garg Tube's
reported COP for the supplier-produced pipe and tube (which includes
Garg Tube's acquisition costs, further processing, general and
administrative expenses, and financial expenses), adjusted based on
Garg Tube's sale of the supplier-produced pipe and tube which realized
the largest loss.\3\
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\1\ See Welded Carbon Steel Standard Pipes and Tubes from India:
Final Results of Antidumping Duty Administrative Review; 2017-2018,
85 FR 2715 (January 16, 2020) (Final Results), and accompanying
Issues and Decision Memorandum (IDM).
\2\ See Final Results IDM at Comment 1.
\3\ Id. at Comment 2.
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Garg Tube appealed Commerce's Final Results. On July 9, 2021, the
CIT remanded the Final Results to Commerce for further explanation or
reconsideration, holding that: (1) Commerce is not authorized under the
statute to make a particular market situation (PMS) adjustment to a
respondent's COP for purposes of determining which of its home market
sales were made below cost; and (2) it was not reasonably discernable
from Commerce's analysis in the Final Results how it was applying
partial adverse facts available under section 776 of the Tariff Act of
1930, as amended (the Act), concerning missing COP data for a certain
unaffiliated and uncooperative supplier.\4\
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\4\ See Garg Tube Export LLP v. United States, 527 F. Supp. 3d
1362 (CIT 2021) (Garg Tube I).
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In its First Redetermination, issued in October 2021, Commerce
recalculated Garg Tube's weighted-average dumping margin by: (1)
reversing a PMS adjustment to Garg Tube's COP for purposes of the
sales-below-cost test; and (2) relying on neutral facts available to
fill the COP gap caused by a certain supplier's non-cooperation.\5\ In
its First Redetermination, Commerce continued to find that a PMS
existed in India during the POR concerning the price of hot-rolled coil
and continued to apply a PMS adjustment when calculating the COP where
normal value (NV) was based on constructed value (CV).\6\
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\5\ See Final Results of Redetermination Pursuant to Remand,
Garg Tube Export LLP and Garg Tube Limited v. United States, Court
No. 20-00026, Slip Op. 21-83 (CIT October 7, 2021) (First
Redetermination), available at <a href="https://access.trade.gov/Resources/remands/21-83.pdf">https://access.trade.gov/Resources/remands/21-83.pdf</a>.
\6\ Id.
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The CIT remanded for a second time, ordering Commerce to further
explain or reconsider how its finding that a PMS existed during the POR
was supported by substantial evidence, and its resultant use of a PMS
adjustment to COP when determining NV on the basis of CV.\7\ In its
Second Redetermination, Commerce declined to find that a PMS existed in
India during the POR with respect to the price of hot-rolled coil and,
as a result, recalculated Garg Tube's weighted-average dumping margin
by removing the PMS adjustment when calculating normal value based on
constructed value.\8\ Because of its negative PMS finding, Commerce
deemed moot the remaining remanded issues concerning its calculation of
the PMS adjustment.\9\ The CIT sustained Commerce's Second
Redetermination.\10\
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\7\ See Garg Tube Export LLP v. United States, 569 F. Supp. 3d
1202 (CIT 2022) (Garg Tube II).
\8\ See Final Results of Redetermination Pursuant to Remand,
Garg Tube Export LLP and Garg Tube Limited v. United States, Court
No. 20-00026, Slip Op. 22-18 (CIT March 11, 2022) (Second
Redetermination), available at <a href="https://access.trade.gov/Resources/remands/22-18.pdf">https://access.trade.gov/Resources/remands/22-18.pdf</a>.
\9\ Id.
\10\ See Garg Tube Export LLP and Garg Tube Limited v. United
States, Court No. 20-00026, Slip Op. 22-120 (CIT October 24, 2022).
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Timken Notice
In its decision in Timken,\11\ as clarified by Diamond
Sawblades,\12\ the U.S. Court of Appeals for the Federal Circuit held
that, pursuant to section 516A(c) and (e) of the Act, Commerce must
publish a notice of court decision that is not ``in harmony'' with a
Commerce determination and must suspend liquidation of entries pending
a ``conclusive'' court decision. The CIT's October 24, 2022, judgment
constitutes a final decision of the CIT that is not in harmony with
Commerce's Final Results. Thus, this notice is published in fulfillment
of the publication requirements of Timken.
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\11\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\12\ See Diamond Sawblades Manufacturers Coalition v. United
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Results
Because there is now a final court judgment, Commerce is amending
its Final Results with respect to Garg Tube as follows:
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Weighted-
average
Producer or exporter dumping
margin
(percent)
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Garg Tube Export LLP and Garg Tube Limited.................. 0.00
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[[Page 65750]]
Cash Deposit Requirements
Because Garg Tube has a superseding cash deposit rate, i.e., there
have been final results published in a subsequent administrative
review, we will not issue revised cash deposit instructions to U.S.
Customs and Border Protection (CBP). This notice will not affect the
current cash deposit rate.
Liquidation of Suspended Entries
At this time, Commerce remains enjoined by CIT order from
liquidating entries that: were produced and/or exported by Garg Tube
and were entered, or withdrawn from warehouse, for consumption during
the period May 1, 2017, through April 30, 2018. These entries will
remain enjoined pursuant to the terms of the injunction during the
pendency of any appeals process.
In the event the CIT's ruling is not appealed, or, if appealed,
upheld by a final and conclusive court decision, Commerce intends to
instruct CBP to assess antidumping duties on unliquidated entries of
subject merchandise produced and/or exported by Garg Tube, in
accordance with 19 CFR 351.212(b). Because Garg Tube's ad valorem
assessment rate is zero,\13\ we will instruct CBP to liquidate the
appropriate entries without regard to antidumping duties.
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\13\ See 19 CFR 351.106(c)(2).
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Unchanged from the Final Results, for entries of subject
merchandise during the period of review produced by Garg Tube Limited
or Garg Tube Export LLP for which neither company knew its merchandise
was destined for the United States, we will instruct CBP to liquidate
unreviewed entries at the all-others rate if there is no rate for the
intermediate company(ies) involved in the transaction.\14\
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\14\ For a full discussion of this practice, see Antidumping and
Countervailing Duty Proceedings: Assessment of Antidumping Duties,
68 FR 23954 (May 6, 2003).
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Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(c) and (e), and 777(i)(1) of the Act.
Dated: October 26, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2022-23743 Filed 10-31-22; 8:45 am]
BILLING CODE 3510-DS-P
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