[Federal Register Volume 74, Number 248 (Tuesday, December 29, 2009)]
[Notices]
[Pages 68779-68780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-30847]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-533-843]
Certain Lined Paper Products from India: Notice of Court Decision
Not In Harmony with Final Determination of Sales at Less than Fair
Value
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On December 10, 2009, the United States Court of International
Trade (``CIT'') sustained the Department of Commerce's (``the
Department's'') redetermination on remand of the final results of the
antidumping duty investigation on certain lined paper products from
India. See Association of American School Paper Suppliers v. United
States, Court No. 06-00395, Slip Op. 09-136 (CIT December 10, 2009)
(``AASPS, Slip. Op. 09-136'').\1\ The Department is now issuing this
notice of court decision not in harmony with the Department's
determination.
---------------------------------------------------------------------------
\1\ The CIT's action referenced in AASPS, Slip. Op. 09-136
includes court number 06-00395 and 06-00399. See Association of
American School Paper Suppliers v. United States, Consol. Ct. No.
06-00395 (Feb. 26, 2007) (order granting consent motion to
consolidate cases).
---------------------------------------------------------------------------
EFFECTIVE DATE: December 20, 2009.
FOR FURTHER INFORMATION CONTACT: Christopher Hargett or Joy Zhang, AD/
CVD Operations, Office 3, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4161 or (202) 482-1168, respectively.
SUPPLEMENTARY INFORMATION:
Background
On August 8, 2006, the Department published the final determination
of sales at less than fair value (``LTFV'') in the antidumping duty
investigation of certain lined paper products (``CLPP'') from India for
the period of investigation, July 1, 2004, through June 30, 2005
(``POI''). See Notice of Final Determination of Sales at Less Than Fair
Value, and Negative Determination of Critical Circumstances: Certain
Lined Paper Products from India, 71 FR 45012 (August 8, 2006) (``CLPP
Final Determination''). The Association of American School Paper
Suppliers\2\ (``AASPS'') and Kejriwal Paper Limited (``Kejriwal'')
filed lawsuits challenging the CLPP Final Determination.
---------------------------------------------------------------------------
\2\ The Association consists of MeadWestvaco Corporation,
Norcom, Inc., and Top Flight, Inc.
---------------------------------------------------------------------------
In its November 17, 2008 opinion,\3\ the CIT partially remanded the
CLPP Final Determination. Specifically, the CIT ordered the Department
to further explain 1) how the general and administrative (``G&A'')
expense ratio reasonably identifies and fairly allocates G&A expenses
in light of the evidence on the record; and 2) how its G&A expense
ratio is consistent with its treatment of Kejriwal's financial expense
ratio.
---------------------------------------------------------------------------
\3\ See Association of American School Paper Suppliers v. United
States, Consol. Court No. 06-00395, Slip Op. 08-122 (CIT November
17, 2008) (``AASPS, Slip Op. 08-122'')
---------------------------------------------------------------------------
In accordance with the CIT's remand order in AASPS, Slip Op. 08-
122, the Department filed its redetermination on remand of the CLPP
Final Determination (``Remand Final Determination'') on March 16, 2009.
In its redetermination, the Department provided further explanation on
its calculation methodology, and also determined that certain
additional expenses should be attributed directly to Kejriwal's
newsprint operations.
Decision Not in Harmony
On December 10, 2009, the CIT sustained the Department's
redetermination on remand of the final results of the antidumping duty
investigation on CLPP from India. By sustaining the remand results, the
CIT affirmed all of the issues in which the Department was challenged,
including the Department's explanation of how the G&A expense ratio it
calculated 1) reasonably identifies and fairly allocates G&A expenses
in light of the evidence on the record, and 2) is consistent with the
Department's treatment of Kejriwal's financial expense ratio.
Pursuant to the Department's redetermination, Kejriwal's G&A
[[Page 68780]]
expense ratio changed.\4\ As a result of the change to Kejriwal's G&A
expense ratio, Kejriwal's calculated margin for the the POI has changed
from 3.91 percent in the CLPP Final Determination to 3.06 percent in
the redetermination issued on March 16, 2009. Accordingly, absent an
appeal or, if appealed, upon a final and conclusive court decision in
this action, we will amend our final determination of this
investigation to reflect the recalculation of the margin for Kejriwal.
---------------------------------------------------------------------------
\4\ Due to the proprietary nature of Kejriwal's G&A expenses,
see the Department's proprietary calculation memorandum, titled
``Remand for the Antidumping Investigation of Certain Lined Paper
Products from India,'' dated March 13, 2009, for further discussion.
---------------------------------------------------------------------------
Suspension of Liquidation
The United States Court of Appeals for Federal Circuit (``CAFC'')
held that the Department must publish notice of a decision of the CIT
or the CAFC which is not in harmony with the Department's
determination. See The Timken Company v. United States, 893 F.2d 337,
341 (CAFC 1990). Publication of this notice fulfills that obligation.
The CAFC also held that, in such a case, the Department must suspend
liquidation until there is a ``conclusive'' decision in the action. Id.
Therefore, the Department must suspend liquidation pending the
expiration of the period to appeal the CIT's December 10, 2009,
decision or, if appealed, pending a final and conclusive court
decision. Because entries of certain lined paper products from India
produced and exported to the United States by Kejriwal Paper Limited
are currently being suspended pursuant to the court's injunction order
in effect, the Department does not need to order U.S. Customs and
Border Protection (``CBP'') to suspend liquidation of affected entries.
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.
This notice is issued and published in accordance with section
516A(c)(1) of the Tariff Act of 1930, as amended.
Dated: December 22, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations.
[FR Doc. E9-30847 Filed 12-28-09; 8:45 am]
BILLING CODE 3510-DS-S