E7-21877. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order Pursuant to Court Decision: Certain Automotive Replacement Glass Windshields From the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: November 7, 2007.

SUMMARY:

On May 10, 2007, the United States Court of International Trade (“Court”) sustained the Final Results of Redetermination Pursuant to Court Remand, Fuyao Glass Industry Group Co., Ltd. et al., v. United States (February 15, 2006) (“Third Remand Redetermination”) made by the Department of Commerce (“the Department”) pursuant to the Court's third remand of the final determination of the less-than-fair-value investigation of Certain Automotive Replacement Glass Windshields from the People's Republic of China (“PRC”). See Fuyao Glass Industry Group Co. v. United States, Consol. Court No. 02-00282, Slip Op. 06-21 (CIT February 15, 2006) (“Fuyao Glass III”). As there is now a final and conclusive court decision in this case, the Department is amending the final determination and antidumping duty order of this investigation.

FOR FURTHER INFORMATION CONTACT:

Paul Stolz or Robert Bolling, 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] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

This case arose out of the Department's Antidumping Duty Order on Certain Automotive Replacement Glass Windshields From the PRC, 67 FR 16087 (April 4, 2002) and 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. Following publication of the Final Determination, in separate actions, Fuyao Glass Industry Group Co., Ltd. et al. (“Fuyao”), Xinyi Automotive Glass (Shenzhen) Co., Ltd. (“Xinyi”),^[1] Shenzhen Benxun Automotive Glass Co., Ltd. (Benxun),^[2] and Changchun Pilkington Safety Glass, Co., Ltd., Guilin Pilkington Safety Glass Co., Ltd., and Wuhan Yao hua Pilkington Safety Glass Co., Ltd. (collectively “Pilkington”) filed lawsuits with the Court challenging the Department's Final Determination.^[3] Collectively, the plaintiffs contested several aspects of the Final Determination, including the Department's decision to disregard certain market economy inputs. On August 2, 2002, all lawsuits challenging the Final Determination, including Xinyi's lawsuit, were consolidated into Fuyao Glass Industry Group Co., Ltd. v. United States, Consol. Court No. 02-00282. On February 15, 2006, while the cases were still consolidated, the Court issued a third remand order to the Department concerning its decision regarding certain market economy inputs. See Fuyao Glass III. 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.” Id. at 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 * * *.” Id. at 7. The Court concluded that it does not find the Department's determination, that prices from South Korea and Indonesia are subsidized, is supported by substantial record evidence. See id. at 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 based upon prices the plaintiffs actually paid to suppliers located in South Korea and Indonesia.

On January 8, 2007, Fuyao's action was severed from the consolidated action. See Court Order of January 8, 2007, in Ct. No. 02-00282. On May 10, 2007, the Court issued a final judgment wherein it affirmed the Department's third remand results with respect to Fuyao's action. On May 30, 2007, consistent with the decision in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), the Department notified the public that the Court's decision was not in harmony with the Department's final determination. See Certain Automotive Replacement Glass Windshields From the People's Republic of China: Notice of Decision of the Court of International Trade Not in Harmony, 72 FR 29969 (May 30, 2007). No party appealed the Court's decision. As there is now a final and conclusive court decision in this case, we are amending our Final Determination.

Amended Final Determination

As the litigation in this case has concluded, the Department is amending the Final Determination to reflect the results of our third remand determination. The revised dumping margin in the amended final determination is as follows:

Exporter	Margin (percent)
Fuyao Glass Industry Group Co., Ltd	0.00

The PRC-wide rate continues to be 124.5 percent as determined in the Department's Final Determination. The Department intends to issue instructions to U.S. Customs and Border Protection (“CBP”) fifteen days after publication of this notice, to revise the cash deposit rates for the company listed above, effective as of the publication date of this notice. Because Fuyao obtained a preliminary injunction, we will also instruct CBP to liquidate all entries without regard to antidumping duties.

This notice is published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended.

Dated: October 31, 2007.

Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  Fuyao and Xinyi were mandatory respondents during the POI.

2.  The Department determined that Shenzhen CSG Automotive Glass Co., Ltd. is a successor-in-interest to Benxun. See Notice of Final Results of Antidumping Duty Changed Circumstances Review: Automotive Replacement Glass Windshields From the People's Republic of China, 69 FR 43388 (July 20, 2004).

3.  Court Nos. 02-00282, 02-00312, 02-00320, and 02-00321.