[Federal Register: January 17, 2008 (Volume 73, Number 12)]
[Notices]
[Page 3236-3237]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17ja08-29]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-803]
Heavy Forged Hand Tools From the People's Republic of China:
Notice of Court Decision Not in Harmony With Final Results of
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On November 20, 2007, the United States Court of International
Trade (``CIT'') sustained the remand redetermination issued by the
Department of Commerce (``the Department'') pursuant to the CIT's
remand of the final results of the twelfth administrative review of the
antidumping duty orders on heavy forged hand tools from the People's
Republic of China. See Shandong Huarong Machinery Co. Ltd., Shandong
Machinery Import & Export Corporation, Liaoning Machinery Import &
Export Corporation, and Tianjin Machinery Import & Export Corporation
v. United States, Slip Op. 07-169 (CIT, 2007) (``Shandong Huarong
II''). On January 8, 2008, the CIT released the public version of this
opinion. This case
[[Page 3237]]
arises out of the Department's final results in the administrative
review covering the period February 1, 2002, through January 31, 2003.
See Heavy Forged Hand Tools, Finished or Unfinished, With or Without
Handles, From the People's Republic of China: Final Results of
Antidumping Duty Administrative Reviews, Final Partial Rescission of
Antidumping Duty Administrative Reviews, and Determination Not to
Revoke in Part, 69 FR 55581 (September 15, 2004) (``Final Results'').
Consistent with the decision of the United States Court of Appeals for
the Federal Circuit (``Federal Circuit'') in Timken Co. v. United
States, 893 F.2d 337 (Fed. Cir. 1990) (``Timken''), the Department is
notifying the public that Shandong Huarong II is not in harmony with
the Department's Final Results.
EFFECTIVE DATE: January 17, 2008.
FOR FURTHER INFORMATION CONTACT: Thomas Martin, AD/CVD Operations,
Office 4, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Ave., NW.,
Washington, DC 20230; telephone: (202) 482-3936.
SUPPLEMENTARY INFORMATION: In Shandong Huarong Machinery Co. Ltd.,
Liaoning Machinery Import & Export Corp. Ltd., Shandong Machinery
Import & Export Corp., and Tianjin Machinery Import & Export Corp. v.
United States and Ames True Temper, Court No. 04-00460, Slip Op. 06-88
(June 9, 2006) (``Shandong Huarong I''), the CIT remanded the
underlying final results of review to the Department to: (1) Explain
why the failure of Shandong Huarong Machinery Co., Ltd. (``Huarong'')
and Tianjin Machinery Import & Export Corporation (``Tianjin'') to
report information on scrapers and forged tampers, respectively,
justifies the use of total adverse facts available (``AFA''), rather
than just partial AFA, pursuant to sections 776(a) and (b) of the
Tariff Act of 1930 (the ``Act''), for the axe/adze order for Huarong
and the bar/wedge order for Tianjin; (2) provide a factual basis
showing that the rate calculated for Tianjin is a reasonable estimate
of its actual rate plus an added amount to encourage cooperation; (3)
explain how the Department's commercial quantities methodology fulfills
the purpose of 19 CFR 351.222(e)(1), in relation to its refusal to
revoke Shandong Machinery Import & Export Corporation (``SMC'') from
the hammers/sledges order; (4) analyze further the issue of valuation
of steel pallets manufactured by certain hand tool factories; (5)
revisit its decision that certain miscellaneous handling expenses are
not included in the surrogate price of foreign brokerage and handling
and, if the Department continues to find that the handling expenses in
question are not in the surrogate price of brokerage and handling, to
provide a thorough explanation; (6) explain why its decision to analyze
market economy (``ME'') purchases of ocean freight in aggregate is
reasonable; and (7) explain further its decision to deny the request
for a circumstance of sale (``COS'') adjustment to Tianjin's normal
value (``NV'').
The Department released the Draft Results of Redetermination
Pursuant to Court Remand (``Draft Redetermination'') to the petitioner,
Ames True Temper (``Ames''), and the respondents for comment on
December 15, 2006. The Department received comments from both Ames and
the respondents on December 29, 2006. On January 12, 2007, the
Department issued to the CIT its final results of redetermination
pursuant to Shandong Huarong I. See Final Results of Redetermination
Pursuant to Court Remand, Court No. 04-00460, (January 12, 2007)
(``Final Redetermination''), found at http://ia.ita.doc.gov/remands/06-88.pdf.
In the remand redetermination the Department did the following:
(1)(a) Explained that AFA was applied to all of Huarong's sales of
axes/adzes, pursuant to sections 776(a) and (b) of the Act, because it
failed to report requested information regarding its production and
sales of scrapers, which are subject to the axes/adzes order; (1)(b)
explained that total AFA was applied to Tianjin's sales of bars/wedges
because, in part, it failed to report its sales of forged tampers,
which are subject to the bars/wedges order; (2) redetermined an AFA
rate for Tianjin's sales of merchandise covered by the bars/wedges
order; (3) explained that the period of investigation (``POI'') sales
quantity is a valid benchmark for determining whether the respondent
sold in commercial quantities because it represents the respondent's
behavior without the discipline of an antidumping order; (4) included
in the Department's calculation of NV the cost of labor and welding rod
consumed in making steel pallets; (5) examined the record of Stainless
Steel Wire Rod From India; Final Results of Administrative Review, 63
FR 48184 (September 9, 1998), and concluded that the brokerage and
handling surrogate value included all expenses noted by the petitioner,
except those that the record does not show were incurred; (6) chose to
continue to apply the respondents' average ME ocean freight expense to
sales shipped with non-market economy (``NME'') carriers; and (7)
continued to deny the petitioner's request for a COS adjustment to
Tianjin's NV because there was insufficient detail to determine whether
there was a correlation between the expenses incurred by Tianjin and
the surrogate producer. The Department recalculated the antidumping
duty rates applicable to SMC's sale of bars/wedges and Tianjin's sales
of axes/adzes, bars/wedges, hammers/sledges, and picks/mattocks as a
result of the Department's modifications to NV. The Department made no
change to the antidumping duty rates of Huarong's and Liaoning
Machinery Import & Export Corporation's sales of bars/wedges. On
November 20, 2007, the CIT sustained all aspects of the remand
redetermination made by the Department pursuant to the CIT's remand of
the Final Results.
In its decision in Timken, 893 F.2d at 341, 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. As a result of the Department's addition of the cost of labor
and welded rod consumed in making steel pallets in the remand
redetermination, the CIT's decision in this case on November 20, 2007,
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 requirements 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 CIT's ruling is
not appealed or, if appealed, upheld by the Federal Circuit, the
Department will instruct U.S. Customs and Border Protection to revise
the cash deposit rates covering the subject merchandise.
This notice is issued and published in accordance with section
516A(c)(1) of the Act.
Dated: January 11, 2008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import Administration.
[FR Doc. E8-789 Filed 1-16-08; 8:45 am]
BILLING CODE 3510-DS-P