E7-13120. Polyvinyl Alcohol from the People's Republic of China: Notice of Court Decision Not In Harmony with Final Determination

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On May 30, 2007, the United States Court of International Trade (“Court”) sustained the final remand determination made by the Department of Commerce (“the Department”) pursuant to the Court's remand of the final determination of sales at less than fair value of polyvinyl alcohol from the People's Republic of China. See Sinopec Sichuan Vinylon Works v. United States, Court No. 03-00791, Slip Op. 07-88 (CIT May 30, 2007) (“Sinopec IV”). This case arises out of the Department's Notice of Final Determination of Sales at Less Than Fair Value: Polyvinyl Alcohol from the People's Republic of China 68 FR 47538 (Aug. 11, 2003)(“Final Determination”), as amended by Notice of Amended Final Determination of Sales at Less Than Fair Value: Polyvinyl Alcohol From the People's Republic of China 68 FR 52183 (Sept. 2, 2003) (“Amended Final Determination”). The final judgment in this case was not in harmony with the Department's Final Determination and Amended Final Determination.

EFFECTIVE DATE:

July 6, 2007.

FOR FURTHER INFORMATION CONTACT:

Hallie Noel Zink, AD/CVD Operations, China/NME Group, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

In Sinopec Sichuan Vinylon Works v. United States, Slip Op. 06-191, 2006 WL 3929638 (CIT Dec. 28, 2006) (not reported in F. Supp.) (“Sinopec III”), the Court remanded the Department's calculation of Sinopec Sichuan Vinylon Works' (“SVW”) overhead costs for adjustments that comport with the Department's estimation of double-counting, if any, that may have occurred. Additionally, the Court stated that the Department was to provide the Court with a well-reasoned explanation for its final decision.

On March 16, 2007, the Department issued the draft results of redetermination pursuant to remand (“draft results”) for comment by interested parties. On March 23, 2007, SVW and Defendant-Intervenors^[1] submitted comments in response to the Department's draft results of redetermination pursuant to remand. On April 14, 2007, the Department issued its final results of redetermination pursuant to remand to the Court. The remand redetermination explained that in accordance with the Court's instructions, the Department analyzed the information on the record and found no evidence on the record establishing the existence of double-counting. Therefore, the Department found that double-counting did not occur. Thus, for these final remand results, the Department applied Jubilant's² financial ratios to SVW's costs without any adjustment. Additionally, the Department provided the Court with further explanation with regard to its final decision, which was based upon the following findings: i) there is no evidence on the record establishing that the Department's application of Jubilant's financial ratios resulted in double counting; and ii) the Department's decision to use Jubilant's data in the calculation of SVW's overhead costs without adjustment is consistent with its decision to apply a by-product credit for SVW's acetic acid recovery into its figures. The recalculated margin for these final remand results is 5.51 percent.

On May 30, 2007, the Court found that the Department complied with the Court's remand order and sustained the Department's remand redetermination. See Sinopec IV.

Timken Notice

In its decision in Timken Co., v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (“Timken”), the United States Court of Appeals for 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. SVW's margin, as originally calculated in the Amended Final Determination, was 6.91 percent. SVW's margin, as calculated now, following the Court's decision in Sinopec IV is 5.51 percent. The Court's decision in Sinopec IV constitutes a final decision of that court that is not in harmony with the Department's final determination in polyvinyl alcohol from the People's Republic of China. 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, upon a final and conclusive court decision.

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

Dated: June 27, 2007.

Joseph A. Spetrini,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  Celanese Chemicals Ltd., and E.I. Dupont de Nemours & Co.

2.  Jubilant Organosys Ltd.'s (Jubilant).