E7-21875. Certain Automotive Replacement Glass Windshields 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, U.S. Department of Commerce.

SUMMARY:

On August 3, 2007, the United States Court of International Trade (“Court”) entered a final judgment sustaining the fourth remand results made by the Department of Commerce (“the Department”) pursuant to the Court's remand of the antidumping duty order on Certain Automotive Replacement Glass Windshields from the People's Republic of China (“PRC”) in Changchun Pilkington Safety Glass Co., Ltd., et al. v. United States, consol. Ct. No. 02-00312, Slip Op 07-118 (August 3, 2007) (“Pilkington”). This case arises out of the Department's Antidumping Duty Order: Automotive Replacement Glass Windshields from the People's Republic of China, 67 FR 16087 (April 4, 2002) (“Order”). The final judgment in this case was not in harmony with the Department's Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields From the People's Republic of China, 67 FR 6482 (February 12, 2002) (“Final Determination”), and accompanying Issues and Decisions Memorandum (“Decision Memo”), as amended at 67 FR 11670 (March 15, 2002), covering the period of investigation (“POI”), July 1, 2000 through December 31, 2000.

EFFECTIVE DATE:

November 7, 2007.

FOR FURTHER INFORMATION CONTACT:

Paul Stolz, AD/CVD Operations, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

In separate actions, plaintiffs, Fuyao Glass Industry Group Co., Ltd. (“Fuyao”), Xinyi Automotive Glass Co., Ltd. (“Xinyi”), Changchun Pilkington Safety Glass, Co., Ltd, Guilin Pilkington Safety Glass Co., Ltd., and Wuhan Yaohua Pilkington Safety Glass Co., Ltd. (collectively “Pilkington”), and Benxun Automotive Glass Co., Ltd. (“Benxun”)¹ contested several aspects of the Final Determination, including the Department's decision to disregard certain market economy inputs.² On February 15, 2006, while the cases were consolidated, the Court remanded the Department's decision regarding certain market economy inputs to the Department. See Fuyao Glass Industry Group Co., Ltd. v. United States, Consol. Court No. 02-00282, 2006 Ct. Int'l Trade Lexis 21, Slip Op. 2006-21 (CIT February 15, 2006) (“Fuyao Glass III”). In its remand to the Department, the Court concluded with respect to the standard applied in the Department's analysis that the Department must conduct its analysis “in accordance with the court's finding with respect to the use of the word `are' rather than `may be' when applying its subsidized price methodology.” Fuyao Glass III, Slip Op. P. 9. The Court further directed the Department to either (1) “concur with the court's conclusions with respect to substantial evidence, or (2) re-open the record . . .” Fuyao Glass III, Slip Op. P. 7. The Court concluded that it does not find the Department's determination, i.e., that prices from South Korea and Indonesia are subsidized, is supported by substantial record evidence. See Fuyao Glass III, Slip Op. p. 16. Pursuant to the Court's ruling, and under respectful protest, the Department concurred that the record evidence does not contain substantial evidence to support a conclusion that prices from South Korea and Indonesia are subsidized. See Viraj Group v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). Because the Court found that the evidence on the record does not support the Department's determination to disregard prices from South Korea and Indonesia, in the remand results, the Department determined to calculate the dumping margin for Fuyao and Xinyi, mandatory respondents, based upon prices the plaintiffs actually paid to suppliers located in South Korea and Indonesia. As a result of its remand determination, the Department calculated zero margins for both Fuyao and Xinyi.

In Fuyao Glass Industry Group Co. v. United States, Consol. Court No. 02-00282, (Orders of November 2, 2006 and December 19, 2006) (“Fuyao Glass IV”), the Court then granted the Department's request for a voluntary remand and instructed the Department to devise a reasonable methodology to calculate an antidumping margin for Pilkington and Benxun, taking into consideration the zero margins assigned to Fuyao and Xinyi. On January 8, 2007, the Court severed Fuyao's and Xinyi's actions, Court Nos. 02-00282 and 02-00321, from the consolidated action, and designated Pilkington's action, Court No. 02-00312, as the lead case, under which Court Nos. 02-00319 and 02-00320 were consolidated. On May 10, 2007, and June 28, 2007, respectively, the Court issued final judgments in Court Nos. 02-00282 and 02-00321, wherein it affirmed the Department's third remand results with respect to Fuyao's and Xinyi's actions. The Department then completed its voluntary remand in which it devised a reasonable methodology to calculate an antidumping margin for Pilkington and Benxun, taking into consideration the zero margins assigned to Fuyao and Xinyi. Specifically, on remand, the Department identified the control numbers (“CONNUMS”) shared by the Pilkington Plaintiffs, Benxun, Fuyao and Xinyi, as reported in their questionnaire responses, and “impute{d} Fuyao's and Xinyi's CONNUM-specific margins to the matching CONNUMs of the {the Pilkington Plaintiffs} and Benxun.” Commerce then weight-averaged those CONNUM-specific margins, which resulted in the de minimis antidumping margin of 1.47 percent for the Pilkington Plaintiffs and Benxun.

On August 3, 2007, the Court issued a final judgement, wherein it affirmed the Department's fourth remand results with respect to Pilkington and Benxun.

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. The Court's decision in Pilkington on August 3, 2007, 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 issue an amended final determination and revised instructions to U.S. Customs and Border Protection if the Court's decision is not appealed or if it is affirmed on appeal.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

Dated: October 31, 2007.

Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  On July 20, 2004, the Department determined that Shenzhen CSG Autoglass Co., Ltd. (``CSG'') is the successor-in-interest to Benxun. The amended final results of this segment of the proceeding will apply to entries made by CSG on or subsequent to July 20, 2004.

2.  Court Nos. 02-00282, 02-00312, 02-00320 and 02-00321. On August 2, 2002, the Court consolidated these actions into Court No. 02-00282.