E8-4128. Notice of Amended Final Results in Accordance With Court Decision: Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People(s Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

March 4, 2008.

SUMMARY:

On November 20, 2007, the U.S. Court of International Trade (“CIT”) sustained the remand redetermination issued by the Department of Commerce (“the Department”) pursuant to the CIT's remand of the final results of the twelfth administrative review of the antidumping duty orders on heavy forged hand tools from the People's Republic of China (“PRC”). See Shandong Huarong Machinery Co. Ltd., Shandong Machinery Import & Export Corporation, Liaoning Machinery Import & Export Corporation, and Tianjin Machinery Import & Export Corporation v. United States, Slip Op. 07-169 (CIT, 2007) (“Shandong Huarong II”). The CIT issued the public version of Shandong Huarong II on January 8, 2008. The period of review (“POR”) for the twelfth review is February 1, 2002, through January 31, 2003.

In its redetermination, the Department assigned dumping margins to sales of (1) bars/wedges by Shandong Huarong Machinery Corporation Limited (“Huarong”); (2) bars/wedges by Liaoning Machinery Import & Export Corporation/Liaoning Machinery Import & Export Corporation Ltd. (collectively “LMC/LIMAC”); (3) bars/wedges by Shandong Machinery Import & Export Corporation (“SMC”); and (4) axes/adzes, bars/wedges, hammers/sledges, and picks/mattocks by Tianjin Machinery Import & Export Corporation (“TMC”). As there is now a final and conclusive court decision in this case which is not in harmony with the underlying results of the disputed administrative review, the Department is amending the final results of the 2002-2003 antidumping duty administrative review of heavy forged hand tools from the PRC.

FOR FURTHER INFORMATION CONTACT:

Tom Martin, 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:

Background

On September 15, 2004, the Department published its final results of antidumping duty administrative review. 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 Reviews, Final Partial Rescission of Antidumping Duty Administrative Reviews, and Determination Not to Revoke in Part, 69 FR 55581 (September 15, 2004) (“Final Results”). In its Final Results the Department calculated antidumping duty margins for Huarong, LMC/LIMAC, SMC, and TMC. On September 16, 2004, the four respondents filed a summons with the CIT, and on September 20, 2004, they filed a complaint with the CIT in which they identified the aspects of the Final Results they are challenging. On September 17, 2004, the petitioner, Ames True Temper ((Ames(), submitted comments alleging that the Department made certain ministerial errors in the Final Results. On September 28, 2004, the Department requested a voluntary remand to consider certain ministerial error allegations raised by the parties. The CIT granted the Department(s request on November 3, 2004, and ordered the Department to address the alleged ministerial errors (without issuing a slip opinion). The Department corrected certain errors and published amended final results on December 1, 2004. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Notice of Amended Final Results of Antidumping Duty Administrative Reviews, 69 FR 69892 (December 1, 2004).

In Shandong Huarong Machinery Co. Ltd., Liaoning Machinery Import & Export Corp. Ltd., Shandong Machinery Import & Export Corp., and Tianjin Machinery Import & Export Corp. v. United States and Ames True Temper, Court No. 04(00460, Slip Op. 06-88 (June 9, 2006) (“Shandong Huarong I”), the CIT remanded the underlying final results of review to the Department to: (1) Explain why the failure of Huarong and TMC to report information on scrapers and forged tampers, respectively, justifies the use of total adverse facts available (“AFA”), rather than just partial AFA, pursuant to sections 776(a) and (b) of the Tariff Act of 1930 (the “Act”), for the axes/adzes order for Huarong and the bars/wedges order for TMC; (2) provide a factual basis showing that the rate calculated for TMC is a reasonable estimate of its actual rate plus an added amount to encourage cooperation; (3) explain how the Department(s commercial quantities methodology fulfills the purpose of 19 CFR 351.222(e)(1), in relation to its refusal to revoke SMC from the hammers/sledges order; (4) analyze further the issue of valuation of steel pallets manufactured by certain hand tool factories; (5) revisit its decision that certain miscellaneous handling expenses are not included in the surrogate price of foreign brokerage and handling and, if the Department continues to find that the handling expenses in question are not in the surrogate price of brokerage and handling, to provide a thorough explanation; (6) explain why its decision to analyze market economy (“ME”) purchases of ocean freight in aggregate is reasonable; and (7) explain further its decision to deny the request for a circumstance of sale ((COS() adjustment to TMC's normal value (“NV”).

The Department released the Draft Results of Redetermination Pursuant to Court Remand to the petitioner and the respondents for comment on December 15, 2006. The Department received comments from both Ames and the respondents on December 29, 2006. On January 12, 2007, the Department issued to the CIT its final results of redetermination pursuant to Shandong Huarong I. See Final Results of Redetermination Pursuant to Court Remand, Court No. 04-00460 (January 12, 2007) found at http://ia.ita.doc.gov/​remands/​06-88.pdf. In the remand redetermination the Department did the following: (1)(i) explained that AFA was applied to all of Huarong's sales of axes/adzes, pursuant to sections 776(a) and (b) of the Act, because it failed to report requested information regarding its production and sales of scrapers, which are subject to the axes/adzes order; (1)(ii) explained that total AFA was applied to TMC's sales of bars/wedges because, in part, it failed to report its sales of forged tampers, which are subject to the bars/wedges order; (2) redetermined an AFA rate for TMC's sales of merchandise covered by the bars/wedges order; (3) explained that the period of investigation sales quantity is a valid benchmark for determining whether the respondent sold in commercial quantities because it represents the respondent(s behavior without the discipline of an antidumping order; (4) included in the Department(s calculation of NV the cost of labor and welding rod consumed in making steel pallets; (5) examined the record of Stainless Steel Wire Rod From India; Final Results of Administrative Review, 63 FR 48184 (September 9, 1998), and concluded that the brokerage and handling surrogate value included all expenses noted by the petitioner, except those that the record does not show were incurred; (6) chose to continue to apply the respondents' average ME ocean freight expense to sales shipped with non-market economy carriers; and (7) continued to deny the petitioner's request for a COS adjustment to TMC's NV because there was insufficient detail to determine whether there was a correlation between the expenses incurred by TMC and the surrogate producer. Based on the above redeterminations, the Department recalculated the antidumping duty rates applicable to SMC's sale of bars/wedges and TMC's sales of axes/adzes, bars/wedges, hammers/sledges, and picks/mattocks as a result of the Department(s modifications to NV. The Department made no change to the antidumping duty rates of Huarong's and LMC/LIMAC's sales of bars/wedges. On November 20, 2007, the CIT sustained all aspects of the remand redetermination made by the Department pursuant to the CIT's remand of the Final Results. See Shandong Huarong II. The CIT issued the public version of Shandong Huarong II on January 8, 2008.

Consistent with the decision made by the Court of Appeal for the Federal Circuit (“CAFC”) in Timken Company v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990), on January 17, 2008, the Department published a “Notice of Court Decision Not in Harmony with Final Results of Administrative Review,” which continued suspension of liquidation of the subject merchandise until there was a (final and conclusive( decision in this case. See Heavy Forged Hand Tools From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of Administrative Review, 73 FR 3236 (January 17, 2008). On January 20, 2008, the opportunity to appeal the CIT's decision to the CAFC expired. Since no party has appealed this decision to the CAFC, the CIT's decision upholding the Department's remand redetermination is final and conclusive.

Amended Final Results

The time period for appealing the CIT's final decision to the CAFC has expired and no party has appealed this decision. As there is now a final and conclusive court decision with respect to litigation for Huarong, LMC/LIMAC, SMC, and TMC, we are amending the final results of review to reflect the findings of the remand results, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (“the Act”). The amended weighted-average margins are as follows:

Exporter	Weighted-Average Margin (Percent)
Shandong Huarong Machinery Corporation Limited (Huarong)
Bars/Wedges	139.31
Liaoning Machinery Import & Export Corporation (LMC)/
Liaoning Machinery Import & Export Corporation Ltd. (LIMAC)
Bars/Wedges	139.31
Shandong Machinery Import & Export Corporation (SMC)
Bars/Wedges	4.05
Tianjin Machinery Import & Export Corporation (TMC)
Axes/Adzes	10.39
Bars/Wedges	139.31
Hammers/Sledges	6.38
Picks/Mattocks	4.61

Assessment Rates

The Department will determine, and U.S. Customs and Border Protection (“CBP”) shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212(b)(1), we have calculated importer-specific assessment rates. Where the importer-specific assessment rate is above de minimis on an ad valorem basis, calculated by dividing the dumping margins found on examined subject merchandise by the estimated entered value, we will instruct CBP to assess antidumping duties on that importer(s entries of subject merchandise. In accordance with 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the importer-specific assessment rate is de minimis (i.e., less than 0.5 percent ad valorem). Since the actual entered value of the merchandise was not reported to the Department, we have divided, where applicable, the total dumping margins (calculated as the difference between NV and export price) for each importer by the total number of units sold to the importer. We will direct CBP to assess the resulting unit dollar amount against each unit of subject merchandise entered by the importer during the POR. The Department will issue appropriate assessment instructions directly to CBP 15 days after publication of these amended final results of review.

This notice is published in accordance with section 516A(e) of the Act.

Dated: February 26, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.