E7-2836. Heavy Forged Hand Tools from the People's Republic of China: Notice of Court Decision Not In Harmony With Final Results of Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On January 9, 2007, the United States Court of International Trade (“CIT”) sustained the final remand redetermination made by the Department of Commerce (“the Department”) pursuant to the CIT's remand of the final results of the eleventh administrative review of the antidumping duty orders on heavy forged hand tools from the People's Republic of China. See Shandong Huarong Machinery Co. v. United States and Ames True Temper, Slip Op. 2007-3 (CIT, 2007) (“Shandong Huarong II”). This case arises out of the Department's final results in the administrative review covering the period February 1, 2001, through January 31, 2002. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Final Results of Antidumping Duty Administrative Review of the Order on Bars and Wedges, 68 FR 53347 (September 10, 2003) (“Final Results”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that Shandong Huarong II is not in harmony with the Department's Final Results.

EFFECTIVE DATE:

February 20, 2007

FOR FURTHER INFORMATION CONTACT:

Thomas Martin or Mark Manning; AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., N.W., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

In Shandong Huarong Machinery Co. v. United States, No. 03-00676 (CIT, 2005) (“Shandong Huarong I”), the CIT remanded the underlying final results to the Department to: (1) reopen the record in order to afford Shandong Huarong Machinery Co. (“Huarong”) a second opportunity to provide a scrap offset in which its scrap sales are allocated to the production of bars/wedges; (2) explain why its methodology of including distances greater than the distance from the nearest port to the factory, when calculating the weighted-average freight distance for multiple suppliers of one particular factor of production (“FOP”), satisfies the reasoning in Sigma Corp. v. United States, 117 F.3d 1401 (Fed. Cir. 1997) (“Sigma”) and Lasko Metal Products Inc. v. United States, 43 F.3d 1442, 1446 (Fed. Cir. 1994) (“Lasko”), or adjust its methodology; (3) explain its decision to disregard the effect of subsidies from the United States and other countries, in light of Fuyao Glass Indus. Group Co. v. United States, Slip Op. 2003-169 (CIT, 2003) (“Fuyao I”) and Fuyao Glass Indus. Group Co. v. United States, Slip Op. 2005-06 (CIT, 2005) (“Fuyao II”); (4) supply a more complete explanation to support its determination that labor costs and other factor inputs for making steel pallets are included in the cost of brokerage and handling; and (5) provide a more complete explanation to support its decision that the cost of movement from the truck to the container yard, demurrage and storage charges, and other port charges are included in the brokerage and handling cost.

The Department released the Draft Results of Redetermination Pursuant to Court Remand (“Draft Redetermination”) to Huarong and Ames True Temper ¹ (“Ames”) for comment on October 7, 2005. The Department received timely filed comments from both Huarong and Ames on October 14, 2005, and rebuttal comments from Huarong on October 19, 2005. On October 16, 2006, the Department issued to the CIT its final results of redetermination pursuant to remand on November 30, 2005. In the remand redetermination the Department did the following: (1) reopened the record, and applied a steel scrap offset in its calculation of normal value to adjust for sales of steel scrap that was generated from the production of the subject bars and wedges; (2) applied the Sigma cap in its analysis and capped the distance for each supplier before calculating the weighted-average inland freight distance; (3) explained its decision in the Final Results to not exclude U.S. export data from the Indian import statistics used as the surrogate value because it would have resulted in an insignificant adjustment to normal value; (4) revised its FOP methodology to include labor costs and other factor inputs for making steel pallets in normal value; and (5) explained its reasoning for finding that movement expenses incurred at the port of export were included in the calculation of brokerage and handing expenses. The Department recalculated the antidumping duty rate applicable to Huarong, and included the changes noted above. On January 9, 2007, the CIT sustained all aspects of the remand redetermination made by the Department pursuant to the CIT's remand of the Final Results.

In its decision in Timken, 893 F.2d at 341, 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 decision in this case on January 9, 2007, constitutes a final decision of the court that is not in harmony with the Department's Final Results. 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 ruling is not appealed or, if appealed, upheld by the Federal Circuit, the Department will instruct U.S. Customs and Border Protection to revise the cash deposit rates covering the subject merchandise.

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

Dated: February 13, 2007.

Stephen J. Claeys,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  Ames True Temper is a domestic interested party to the proceeding, and was the petitioner in the underlying review.