2010-31756. 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

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

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] The final judgment in this case was not in harmony with the Department's Final Determination.

DATES:

Effective Date: September 23, 2010.

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 Changzhou Wujin Fine Chemical Factory Co., Ltd. (“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. The CIT sustained the Department's remand redetermination on August 5, 2010, and subsequently dismissed the case.^[6]

On November 12, 2010, Wujin Fine and Jiangsu Jianghai filed an appeal with the United States Court of Appeals for the Federal Circuit (“CAFC”) of the CIT's decision.

Timken Notice

In its decision in Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (“Timken”), the CAFC 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 decision of September 13, 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. 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.

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

Dated: December 10, 2010.

Ronald K. Lorentzen,

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”).

3.  Id. 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).