2011-57. 1-Hydroxyethylidene-1, 1-Diphosphonic Acid From the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value and Amended Antidumping Duty Order in Accordance With Final Court Decision and Correction to Notice ...

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: January 6, 2011.

SUMMARY:

On September 13, 2010, the United States Court of International Trade (“CIT”) sustained the remand determination made by the Department of Commerce (the “Department”) pursuant to the CIT's remand of the final determination in the antidumping duty investigation on 1-hydroxyethylidene-1, 1-diphosphonic acid (“HEDP”) from the People's Republic of China (“PRC”) and ordered the case dismissed.^[1] This case arises out of the Department's final determination in the antidumping investigation on HEDP from the PRC.^[2] As there is now a final and conclusive court decision in this action with respect to Changzhou Wujin Fine Chemical Factory Co., Ltd. (“Wujin Fine”), the Department is amending its Final Determination and Antidumping Duty Order.

FOR FURTHER INFORMATION CONTACT:

Shawn Higgins, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

On March 11, 2009, the Department published its Final Determination in which it determined that HEDP from the PRC is being, or is likely to be, sold in the United States at less than fair value as provided in section 735 of the Tariff Act of 1930, as amended (the “Act”).^[3]

Separate rate respondent companies Wujin Fine and Jiangsu Jianghai Chemical Group Co., Ltd. (“Jiangsu Jianghai”) timely challenged certain aspects of the Final Determination to the CIT. Among the issues raised before the CIT was whether the Department properly corroborated the adverse facts available (“AFA”) rate upon which it relied in calculating the separate rate.

On February 8, 2010, the CIT granted the United States' motion for a voluntary remand to reconsider the separate rate assigned to Wujin Fine and Jiangsu Jianghai after examining whether the Department corroborated the AFA rate upon which it relied in calculating the separate rate.^[4] In a remand determination filed on May 3, 2010, the Department determined that the AFA rate upon which the Department relied in calculating the separate rate was not corroborated in the Final Determination.^[5] Consequently, the Department calculated a revised separate rate of 15.47 percent for Wujin Fine and Jiangsu Jianghai relying on a second AFA rate that did not require corroboration.

On September 13, 2010, the CIT sustained the Department's remand redetermination, and subsequently dismissed the case.^[6] On November 12, 2010, Jiangsu Jianghai filed an appeal with the United States Court of Appeals for the Federal Circuit (“CAFC”) of the CIT's decision.^[7] Wujin Fine, however, elected not to appeal the CIT's decision.

Consistent with the decision of the CAFC in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), the Department published in the Federal Register a notice of a court decision that is not “in harmony” with the Department's final determination.^[8] The Timken Notice incorrectly stated that, “In the event the CIT's decision is affirmed on appeal, the Department will publish an amended final determination revising the separate rate assigned to Wujin Fine and Jiangsu Jianghai and issue revised cash deposit instructions to U.S. Customs and Border Protection.” ^[9] As noted above, only Jiangsu Jianghai appealed the CIT's decision with the CAFC. Because Wujin Fine did not appeal the CIT's decision and the period to appeal that decision has expired, the CIT decision is final and conclusive for Wujin Fine. Accordingly, the Department is amending its Final Determination and Antidumping Duty Order.

Amendment to Final Determination and Antidumping Order

Because there is now a final and conclusive court decision with respect to Wujin Fine in this proceeding, the revised dumping margin and cash deposit rate for Wujin Fine in the Final Determination is as follows:

HEDP from the PRC			Amended final margin (Percent)
Exporter	Producer	Original final margin (Percent)
Changzhou Wujin Fine Chemical Factory Co., Ltd.	Changzhou Wujin Fine Chemical Factory Co., Ltd.	36.21	15.47

In accordance with section 735(c)(1)(B) of the Act, the Department will instruct CBP to collect a cash deposit of 15.47 percent for entries of subject merchandise produced and exported by Wujin Fine, effective September 23, 2010 in accordance with the Timken Notice.

This notice is issued and published in accordance with sections 735(d), 736(a), 516A(c)(1), and 777(i)(1) of the Act.

Dated: December 30, 2010.

Christian Marsh,

Acting Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, No. 09-00216, Slip Op. 10-85 (Ct. Int'l Trade Aug. 5, 2010); Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, No. 09-00216, Slip Op. 10-103 (Ct. Int'l Trade Sept. 13, 2010).

2.  See 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from the People's Republic of China: Final Determination of Sales at Less Than Fair Value, 74 FR 10545 (March 11, 2009) (“Final Determination”); 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from India and the People's Republic of China: Antidumping Duty Orders, 74 FR 19197 (April 28, 2009) (“Antidumping Duty Order”).

3.  See Final Determination, 74 FR at 10545.

4.  See Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, No. 09-00216 (Ct. Int'l Trade Feb. 8, 2010).

5.  See Final Results of Redetermination Pursuant to Court Order: Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States (May 3, 2010) at 1-9.

6.  See Changzhou Wujin Fine Chemical Factory Co., Ltd. v. United States, No. 09-00216, Slip Op. 10-103 (Ct. Int'l Trade Sept. 13, 2010).

7.  In the event the CIT's decision is affirmed on appeal, the Department will publish an amended final determination revising the separate rate assigned to Jiangsu Jianghai and issue revised cash deposit instructions to U.S. Customs and Border Protection (“CBP”).

8.  See 1-Hydroxyethylidene-1, 1-Diphosphonic Acid From the People's Republic of China: Notice of Decision of the Court of International Trade Not in Harmony, 75 FR 78967 (December 17, 2010) (“Timken Notice”).

9.  Id. at 78968.