[Federal Register: September 29, 2005 (Volume 70, Number 188)]
[Notices]
[Page 56889-56890]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29se05-33]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-570-827
Notice of Decision of the Court of International Trade: Certain
Cased Pencils from the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On August 23, 2005, the Court of International Trade (CIT)
sustained the Department of Commerce's (the Department's)
redetermination regarding the 1999-2000 antidumping duty administrative
review of certain cased pencils (pencils) from the People's Republic of
China (PRC). Pursuant to the Court's remand order, in its
redetermination the Department assigned Guangdong Provincial Stationery
& Sporting Goods Import &
[[Page 56890]]
Export Corp. (Guangdong) a cash deposit rate of 13.91 percent, rather
than the PRC-wide rate assigned to the company in the contested
administrative review. Consistent with the decision of the United
States Court of Appeals for the Federal Circuit (Federal Circuit) in
The Timken Company v. United States and China National Machinery and
Equipment Import and Export Corporation, 893 F. 2d 337 (Fed. Cir. 1990)
(Timken), the Department is publishing this notice of the CIT's
decision which is not in harmony with the Department's determination in
the 1999-2000 antidumping duty administrative review of pencils from
the PRC.
EFFECTIVE DATE: September 29, 2005.
FOR FURTHER INFORMATION CONTACT: Magd Zalok or Howard Smith at (202)
482-4162 or (202) 482-5193, respectively; AD/CVD Operations, Office 4,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
On December 28, 1994, the Department published the antidumping duty
order on pencils from the PRC. See Antidumping Duty Order: Certain
Cased Pencils from the People's Republic of China, 59 FR 66,909
(December 28, 1994). The Department excluded from this order
Guangdong's U.S. sales of pencils produced by Three Star Stationery
Industry Corp. (Three Star). However, in the final determination that
gave rise to the antidumping duty order, the Department stated that if
Guangdong sold subject merchandise to the United States that was
produced by manufacturers other than Three Star, such sales would be
subject to a cash deposit rate equal to the rate applied to the PRC
entity. See Notice of Final Determination of Sales at Less Than Fair
Value: Certain Cased Pencils from the People's Republic from China, 59
FR 55625, 55627 (November 8, 1994), see also Certain Cased Pencils From
the People's Republic of China; Notice of Amended Final Determination
of Sales at Less Than Fair Value and Amended Antidumping Duty Order in
Accordance With Final Court Decision, 64 FR 25275 (May 11, 1999).
In the 1999-2000 antidumping duty administrative review of pencils
from the PRC, the Department ``collapsed'' Three Star with another
entity, China First Pencil Co. Ltd. (China First), based upon
information that came to light late in the review. Further, the
Department determined that the combined entity, China First/Three Star,
was distinct from the Three Star whose factors of production formed the
basis for excluding Guangdong from the order. Because there was no
information on the record of the 1999-2000 review from which to
calculate a dumping margin for Guangdong, consistent with the
investigation in this proceeding, in the final results of review the
Department assigned Guangdong's sales of China First/Three Star
produced subject merchandise a cash deposit rate equal to the PRC-wide
rate. See Certain Cased Pencils from the People's Republic of China:
Final Results and Partial Rescission of Antidumping Duty Administrative
Review, 67 FR 48,612 (July 25, 2002), as amended in Notice of Amended
Final Results and Partial Rescission of Antidumping Duty Administrative
Review: Certain Cased Pencils from the People's Republic of China, 67
FR 59,049 (September 19, 2002).
Respondents in the 1999-2000 administrative review filed a motion
of judgement upon the agency record contesting the final results of
that review. After considering the respondents' arguments, the CIT
remanded the case to the Department instructing it to, among other
things, reevaluate the PRC-wide rate applied to Guangdong because the
Court found the Department had effectively applied adverse facts
available to a participating and cooperative respondent. See Kaiyuan
Group Corp., et al v. United States and the Pencil Section Writing
Instrument Manufacturers Ass'n, et al., 343 F. Supp. 2d 1289 (May 14,
2004) (Kaiyuan I). Consistent with the Court's direction, under
protest, in its redetermination the Department assigned Guangdong a
cash deposit rate based on the weighted-average of the margins
calculated for other respondents in the 1999-2000 administrative
review. On August 23, 2005, the CIT sustained the Department's remand
redetermination. See Kaiyuan Group Corp., et al v. United States and
the Pencil Section Writing Instrument Manufacturers Association, et al.
Slip Op. 05-103 (Kaiyuan II).
Notification
In its decision in Timken, the Federal Circuit held that, pursuant
to 19 U.S.C. 1516a(e), the Department must publish notice of a CIT
decision which is ``not in harmony'' with the Department's
determination. The CIT's decisions in Kaiyuan I & II regarding the rate
assigned to Guangdong are not in harmony with the Department's
determination in the final results of the 1999-2000 antidumping duty
administrative review of pencils from the PRC. Therefore, publication
of this notice fulfills the Department's obligation under 19 U.S.C.
1516a(e).
The Department will continue to suspend liquidation pending the
expiration of the period to appeal the CIT's August 23, 2005, decision,
or, if that decision is appealed, pending a ``conclusive'' decision by
the Federal Circuit. Upon expiration of the period to appeal, or if the
CIT's decision is appealed and the Federal Circuit's decision is not in
harmony with the Department's determination in the 1999-2000
antidumping duty administrative review of pencils from the PRC, the
Department will publish in the Federal Register a notice of amended
final results for the 1999-2000 administrative review of pencils.
Dated: September 22, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 05-19506 Filed 9-28-05; 8:45 am]
BILLING CODE 3510-DS-S