[Federal Register Volume 76, Number 16 (Tuesday, January 25, 2011)]
[Notices]
[Pages 4285-4287]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1398]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-827]
Certain Cased Pencils From the People's Republic of China: Notice
of Court Decision Not in Harmony With Final Results of Administrative
Review and Notice of Amended Final Results of Administrative Review
Pursuant to Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On January 3, 2011, the United States Court of International
Trade (``CIT'') sustained in an unpublished judgment the Department of
Commerce's (``the Department'') results of redetermination as applied
to respondents China First Pencil Co., Ltd. (``China First'') and
Shanghai Three Star Stationery Industry Corp. (``Three Star'') and
separate rate company Orient International Holding Shanghai Foreign
Trade Co., Ltd. (``SFTC'') pursuant to the CIT's remand order in China
First Pencil Co., Ltd. v. United States, 721 F. Supp. 2d 1369 (Ct.
Int'l Trade 2010) (``China First''). See Final Results of
Redetermination Pursuant to Remand, Court No. 09-00325, dated December
20, 2010, available at http://ia.ita.doc.gov/remands (``Remand
Results''); China First Pencil Co., Ltd. v. United States, Court No.
09-00325 (Ct. Int'l Trade January 3, 2011) (judgment). Consistent with
the decision of the United States Court of Appeals for the Federal
Circuit (``CAFC'') in Timken Co. v. United States, 893 F.2d 337 (Fed.
Cir. 1990) (``Timken''), as clarified by Diamond Sawblades Mfrs.
Coalition v. United States,--F.3d--Court No. 2010-1024, -1090 (Fed.
Cir. December 9, 2010) (``Diamond Sawblades''), the Department is
notifying the public that the final judgment in this case is not in
harmony with the Department's final determination and is amending the
final results of the administrative review of
[[Page 4286]]
the antidumping duty order on certain cased pencils (``pencils'') from
the People's Republic of China covering the period of review (``POR'')
of December 1, 2006, through November 30, 2007 with respect to China
First, Three Star, and SFTC. See Certain Cased Pencils from the
People's Republic of China: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 74 FR 33406 (July 13, 2009)
(``Final Results''), and accompanying Issues and Decision Memorandum
(``I&D Memorandum''), as amended by Certain Cased Pencils from the
People's Republic of China: Amended Final Results of Antidumping Duty
Administrative Review, 74 FR 45177 (September 1, 2009).
DATES: Effective Date: January 13, 2011.
FOR FURTHER INFORMATION CONTACT: Alexander Montoro or Nancy Decker, AD/
CVD Operations, Office 1, Import Administration--International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
0238 or (202) 482-0196.
SUPPLEMENTARY INFORMATION:
Background
On July 13, 2009, the Department published its Final Results. In
the Final Results, the Department valued lindenwood pencil slats used
by respondents China First, Three Star, and Shandong Rongxin Import &
Export Co., Ltd. (``Rongxin''), with publicly available, published U.S.
prices for American basswood lumber.\1\ In China First, the CIT
determined that the Department's surrogate value for pencils slats used
in the Final Results was unsupported by substantial evidence and was
not in accordance with law. The CIT remanded the Department to
recalculate a surrogate value for pencil slats using data from ``Paper
and Stationery,'' an Indian trade publication. See China First, 721 F.
Supp. 2d at 1375-77.
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\1\ See Final Results and accompanying I&D Memorandum at Comment
4a.
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Moreover, in the Final Results, the Department valued black and
color cores for China First, Three Star, and Rongxin using World Trade
Atlas data.\2\ In China First, the CIT determined that the Department's
surrogate value for cores used in the Final Results was unsupported by
substantial evidence and was not in accordance with law. The CIT
remanded to the Department to identify separate surrogate values,
supported by substantial evidence on the record, for black cores, color
cores, thick black cores, and thick color cores. See China First, 721
F. Supp. 2d at 1379-1380.
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\2\ See Final Results and accompanying I&D Memorandum at Comment
4b.
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Additionally, in the Final Results, the Department calculated a
surrogate wage value in accordance with the regression-based
methodology set forth in 19 CFR 351.408(c)(3).\3\ In Dorbest Ltd. v.
United States, 604 F.3d 1363 (Fed. Cir. 2010) (``Dorbest''), the CAFC
held that the Department's ``{regression-based{time} method for
calculating wage rates {as stipulated by 19 CFR 351.408(c)(3){time}
uses data not permitted by {the statutory requirements laid out in
section 773 of the Tariff Act of 1930, as amended (``the Act'') (i.e.
19 U.S.C. 1677b(c)){time} .'' Dorbest, 604 F.3d at 1372. Specifically,
the CAFC interpreted section 773(c) of the Act to require the use of
data from market economy countries that are both economically
comparable to the non-market economy country at issue and significant
producers of the subject merchandise, unless such data are unavailable.
Because the Department's regulation requires the Department to use data
from economically dissimilar countries and from countries that do not
produce comparable merchandise, the CAFC invalidated the Department's
labor regulation at 19 CFR 351.408(c)(3). Following Dorbest, the
Department requested a voluntary remand for its wage rate calculations
for China First, Three Star, and Rongxin in the Final Results. The CIT
granted that request and in China First remanded the Final Results with
instructions that the labor wage value be recalculated in accordance
with the decision in Dorbest. See China First, 721 F. Supp. 2d at 1373.
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\3\ See Final Results and accompanying I&D Memorandum at Comment
3.
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On December 20, 2010, the Department issued its final results of
redetermination pursuant to China First. Pursuant to the Dorbest ruling
and the remand in China First, we revised the wage rate calculation
methodology to comply with the CAFC's interpretation of section 773 of
the Act and have recalculated the pencil slats and cores surrogate
values using prices from ``Paper and Stationery.'' The Department's
redetermination resulted in changes to the Final Results for China
First's margin from 10.41 percent to 1.13 percent; for Three Star's
margin from 59.62 percent to 3.06 percent; and for Rongxin's margin
from 11.48 percent to 1.55 percent. Based on these revisions, the
margin of SFTC has been revised from 32.21 percent to 1.66 percent. The
CIT sustained the Department's remand redetermination with respect to
China First, Three Star, and SFTC on January 3, 2011. See China First
Pencil Co., Ltd. v. United States, Court No. 09-00325 (Ct. Int'l Trade
January 3, 2011) (judgment). The CIT has not yet ruled on the
Department's remand redetermination with respect to Rongxin.
Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the CAFC has held that, pursuant to section 516A(e) of 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 January 3, 2011 judgment sustaining the Department's remand
redetermination with respect to China First, Three Star, and SFTC
constitutes a final decision of that 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. The cash deposit rate will
remain the company-specific rate established for the subsequent and
most recent period during which the respondents were reviewed. See
Certain Cased Pencils From the People's Republic of China: Final
Results of the Antidumping Duty Administrative Review, 75 FR 38980
(July 7, 2010).
Amended Final Results
Because there is now a final court decision with respect to China
First, Three Star, and SFTC, revised dumping margins are as follows:
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Margin
Manufacturer/Exporter (percent)
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China First Pencil Company, Ltd. (which includes 1.13
subsidiaries Shanghai First Writing Instrument Co.,
Ltd.; Shanghai Great Wall Pencil Co., Ltd.; and China
First Pencil Fang Zheng Co., Ltd.).....................
[[Page 4287]]
Shanghai Three Star Stationery Industry Co., Ltd........ 3.06
Orient International Holding Shanghai Foreign Trade 1.66
Corporation............................................
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In the event the CIT's ruling is not appealed or, if appealed,
upheld by the CAFC, the Department will instruct U.S. Customs and
Border Protection to assess antidumping duties on entries of the
subject merchandise during the POR from China First, Three Star, and
SFTC based on the revised assessment rates calculated by the
Department.
This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: January 11, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-1398 Filed 1-24-11; 8:45 am]
BILLING CODE 3510-DS-P