2010-25689. 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 [phone] or [phone], 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 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.