E7-11522. Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order Pursuant to Court Decision: Lawn and Garden Steel Fence Posts from the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

June 14, 2007.

SUMMARY:

On September 22, 2005, the United States Court of International Trade (“CIT”) sustained the Final Results of Redetermination Pursuant to Remand, Hebei Metals & Minerals Imp. & Exp. Corp. And Hebei Wuxin Metals & Minerals Trading Co., Ltd. v. United States (July 20, 2005) (“Second Remand Redetermination”) made by the Department of Commerce (“the Department”) pursuant to the CIT's second remand of the final determination of the less-than-fair-value investigation of lawn and garden steel fence posts from the People's Republic of China (“PRC”). See Hebei Metals & Minerals Import & Export Corporation and Hebei Wuxin Metals & Minerals Trading Co., Ltd. v. United States, Consol. Ct. No. 03-00442, Slip Op. 05-126, (CIT September 22, 2005) (“Court Decision in Hebei Metals”). 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:

Jennifer Moats or Blanche Ziv, 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] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On April 23, 2003, the Department published in the Federal Register its final determination in the above-referenced investigation covering the period October 1, 2001, through March 31, 2002. See Final Determination of Sales at Less Than Fair Value: Lawn and Garden Steel Fence Posts From the People's Republic of China, 68 FR 20373 (April 25, 2003) (“Final Determination”). Following publication of the Final Determination, Hebei Metals & Minerals Import & Export Corporation and Hebei Wuxin Metals & Minerals Trading Co., Ltd. (collectively, “Hebei Metals”) filed a lawsuit with the CIT challenging the Department's Final Determination. Hebei Metals challenged the surrogate coal value, the surrogate steel-pallet value, and the exclusion of certain items in the calculation of the surrogate financial ratios. On September 11, 2003, the CIT issued on behalf of Hebei Metals, an injunction enjoining the Department from issuing instructions to liquidate entries of lawn and garden steel fence posts from the PRC. See Hebei Metals & Minerals Import & Export Corporation, et. al. v. United States, Court No. 03-00442 (September 11, 2003).

On July 19, 2004, the CIT first remanded this case to the Department to address three aspects of the Department's antidumping duties calculation in the Final Determination: (1) the use of an Indian import price, based on Indian Import Statistics, rather than an Indian domestic price, based on Tata Energy Research Institute's Energy Data Directory & Yearbook (“Teri Data”) for the surrogate value for coal, (2) the inclusion of a Swedish import value in the surrogate value for steel-pallet packing material, and (3) exclusion of internal consumption from raw material expenditures in the calculation of surrogate ratios for selling, general, and administrative (“SG&A”) expenses and profit. See Hebei Metals &Minerals Import & Export Corporation, et al. v. United States, Slip Op. 04-88 (CIT July 19, 2004) (“First Remand”).

On October 20, 2004, the Department issued the Final Results of Redetermination Pursuant to Remand, Hebei Metals & Minerals Imp. & Exp. Corp. And Hebei Wuxin Metals & Minerals Trading Co., Ltd. v. United States (October 20, 2004) (“First Remand Redetermination”) in the above-referenced investigation pursuant to the CIT's remand order on July 19, 2004. In its redetermination the Department (1) concluded that substantial evidence indicated that the use of the Indian import prices for the surrogate value of coal yielded a more accurate surrogate value than the domestic coal value on the record; (2) pursuant to the Court's instructions, excluded the Swedish import value from the calculation of the surrogate value for steel pallets; and (3) concluded that substantial record evidence demonstrated the significance of internal consumption, and its removal from the denominator increased the accuracy of the ratios.

On March 10, 2005, the CIT issued a second remand. See Hebei Metals & Minerals Import & Export Corporation and Hebei Wuxin Metals & Minerals Trading Co., Ltd. v. United States, Slip Op. 05-32 (CIT March 10, 2005) (“Second Remand”). In the Second Remand, the CIT determined that (1) the Department's selection of a surrogate coal value was arbitrary and unsupported by substantial evidence and, therefore, remanded this issue to the Department for reconsideration; (2) the Department had adequately complied with the CIT's instructions to exclude a Swedish import value from the calculation of the surrogate value for steel pallets and, therefore, the issue was no longer before the Court; and (3) the Department provided a reasonable explanation as to why it is not appropriate to remove any amounts from the numerators of the SG&A and factory overhead surrogate financial ratios and, therefore, sustained the Department's determination. Id.

On July 20, 2005, the Department issued its Second Remand Redetermination. In its second redetermination, the Department determined that the Teri Data, placed on the record by Hebei Metals, was the best source of data for the selection of a surrogate value for coal in this proceeding because it was complete and comprehensive in that it covers all sales of all types of coal made by Coal India Limited and its subsidiaries and because it was exclusive of duties and taxes. On September 22, 2005, the CIT sustained the Department's Second Remand Redetermination. See Court Decision in Hebei Metals, Slip Op. 05-126. The CIT's final judgment was not in harmony with the Department's Final Determination. No party appealed the CIT'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. The revised dumping margin in the amended final determination is as follows:

Exporter	Margin
Hebei Metals & Minerals Import & Export Corporation	6.49 percent

The PRC-wide rate continues to be 15.61 percent as determined in the Department's Final Determination. Within five business days of publication of this notice, the Department will issue instructions to U.S. Customs and Border Protection (“CBP”) to revise the cash deposit rates for the company listed above, effective as of the publication date of this notice. Because Hebei Metals received a preliminary injunction, we will also instruct CBP to liquidate all entries, for which no review was requested, at the new cash deposit rate.

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

Dated: June 8, 2007.

David M. Spooner,

Assistant Secretary for Import Administration