[Federal Register Volume 75, Number 196 (Tuesday, October 12, 2010)]
[Notices]
[Pages 62505-62506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25689]
[[Page 62505]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-913]
Certain New Pneumatic Off-the-Road Tires From the People's
Republic of China: Notice of Decision of the Court of International
Trade Not in Harmony
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On October 1, 2010, the United States Court of International
Trade (``CIT'') sustained the second remand redetermination made by the
Department of Commerce (``Department'') pursuant to the CIT's remand of
the final determination in the countervailing duty investigation on
certain new pneumatic off-the-road tires (``OTR tires'') from the
People's Republic of China (``PRC''). See GPX Int'l Tire Corp. v.
United States, Consol. Ct. No. 08-00285, Slip Op. 10-112 (Ct. Int'l
Trade October 1, 2010) (``GPX III''). This case arises out of the
Department's final determination in the countervailing duty (``CVD'')
investigation on OTR tires from the PRC. The final judgment in this
case was not in harmony with the Department's July 2008 final
determination.
DATES: Effective Date: October 12, 2010.
FOR FURTHER INFORMATION CONTACT: Andrew Huston or Jack Zhao, AD/CVD
Operations, Office 6, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington DC 20230; telephone (202) 482-4261
or (202) 482-1396, respectively.
SUPPLEMENTARY INFORMATION: In July 2008, the Department published a
final determination in which it found that countervailable subsidies
are being provided to producers/exporters of OTR tires from the PRC.
See Certain New Pneumatic Off-The-Road-Tires From the People's Republic
of China: Final Affirmative Countervailing Duty Determination and Final
Negative Determination of Critical Circumstances, 73 FR 40480 (July 15,
2008) (``Final Determination''). As part of the Final Determination,
the Department calculated a CVD rate of 14.00 percent for Hebei
Starbright Tire Co., Ltd. (``Starbright''), 6.85 percent for Tianjin
United Tire & Rubber International Co., Ltd. (``TUTRIC''), and 2.45
percent for Guizhou Tire Co., Ltd. (``GTC'') and an all-others CVD rate
of 5.62 percent. See Final Determination, 73 FR at 40483. On September
4, 2008, the Department published a CVD order on OTR tires from the
PRC. See Certain New Pneumatic Off-the-Road Tires From the People's
Republic of China: Countervailing Duty Order, 73 FR 51627 (September 4,
2008).
Domestic interested party Bridgestone Americas, Inc. and
Bridgestone Americas Tire Operations, LLC (collectively,
``Bridgestone''), petitioners Titan Tire Corporation and the United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied and
Industrial Service Workers International Union, AFL-CIO-CLC
(collectively, ``Titan''), interested party GPX International Tire
Corporation, and respondent companies Starbright and TUTRIC each timely
challenged various aspects of the Final Determination to the CIT. Among
the issues raised before the Court were the Department's authority to
apply the CVD law to the PRC while also treating the PRC as a non-
market economy (``NME'') country for antidumping (``AD'') purposes and
the Department's application of a cut-off date of December 11, 2001,
the date of the PRC's accession to the World Trade Organization, for
identifying and measuring subsidies in the PRC.
On September 18, 2009, the CIT remanded this matter to the
Department either ``to forego the imposition of CVDs on the merchandise
at issue or * * * to adopt additional policies and procedures to adapt
its NME AD and CVD methodologies to account for the imposition of CVD
remedies on merchandise from the PRC.'' GPX Int'l Tire Corp. v. United
States, Consol. Ct. No. 08-00285, Slip Op. 09-103 at *33 (Ct. Int'l
Trade September 18, 2009) (``GPX I''). The CIT also ordered the
Department, should it continue to impose CVD remedies, to ``refrain
from using a uniform cut-off date for identifying and measuring
subsidies in the PRC while it remains a designated NME and must
evaluate the specific facts of each subsidy to determine what kind of
subsidy exists and whether it is measurable at a particular time in the
PRC.'' Id.
On April 26, 2010, the Department issued an initial remand
redetermination under protest in which it continued to impose CVD
remedies upon imports of subject merchandise from the PRC, but
determined, for certain of those imports, to offset those CVDs against
calculated dumping margins. See Remand Redetermination, GPX Int'l Tire
Corp. v. United States, Consol. Ct. No. 08-00285, dated April 26, 2010,
at 7-11, 42-44. The Department also under protest refrained from using
a uniform cut-off date for identifying and measuring subsidies in the
PRC and instead evaluated the specific facts of each subsidy to
determine the nature of each subsidy and the point in time that each
type of subsidy became measurable. Id. at 20-40, 51-53.
On August 4, 2010, the CIT ruled the above-described offset
methodology to be unreasonable and inconsistent with the statute and
ordered the Department ``to forego the imposition of CVDs on the
merchandise at issue.'' GPX Int'l Tire Corp. v. United States, Consol.
Ct. No. 08-00285, Slip Op. 10-84 at *28 (Ct. Int'l Trade August 4,
2010) (``GPX II''). Accordingly, in a second remand redetermination
filed with the CIT under protest on September 3, 2010, the Department
excluded Starbright and TUTRIC from the CVD order, but continued to
apply its revised approach to selecting the date on which to identify
and measure subsidies adopted under protest in its initial remand
redetermination with respect to GTC. See Second Remand Redetermination,
GPX Int'l Tire Corp. v. United States, Consol. Ct. No. 08-00285, dated
September 3, 2010, at 2-4. As a result, the Department calculated a CVD
rate of 3.35 percent for GTC and an all-others CVD rate of 3.35
percent. Id. at 8. The CIT affirmed the Department's second remand
redetermination on October 1, 2010. See GPX III, Slip Op. 09-112 at *3.
Timken Notice
In its decision in Timken Co., v. United States, 893 F. 2d 337, 341
(Fed. Cir. 1990) (``Timken''), the United States Court of Appeals for
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. The CIT's GPX III decision of
October 1, 2010 constitutes a final decision of that court that is not
in harmony with the Department's Final Determination. 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 decision is not appealed or is affirmed on
appeal, the Department will publish an amended final determination
excluding OTR tires produced and exported by Starbright or TUTRIC from
the countervailing duty order on OTR tires from the PRC and will issue
[[Page 62506]]
revised instructions to U.S. Customs and Border Protection.
This notice is issued and published in accordance with section
516A(c)(1) of the Act.
Dated: October 6, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-25689 Filed 10-8-10; 8:45 am]
BILLING CODE 3510-DS-P