2011-21950. Wooden Bedroom Furniture From the People's Republic of China: Corrected Notice of Court Decision Not in Harmony With the Final Determination of Sales at Less Than Fair Value and Notice of Amended Final Determination of Sales at Less Than ...

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 3, 2011, the United States Court of International Trade (“CIT” or the “Court”) sustained the Department's remand redetermination ^[1] pursuant to Court remands ^[2] of the Final Determination ^[3] of the less than fair value investigation of wooden bedroom furniture (“WBF”) from the People's Republic of China (“PRC”).^[4]

Consistent with the decision of the Court of Appeals for the Federal Circuit (“CAFC” or “Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), as clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (“Diamond Sawblades”), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's Final Determination and is amending its Final Determination and Order.

The version of this notice released on Tuesday, August 16, 2011, contained three inadvertent errors. In the notice released on Tuesday, August 16, 2011, the Department stated that, subsequent to the Final Determination, new cash deposit rates had been established for Dorbest, and indicated that Dorbest's cash deposit rate would not be revised. This statement was incorrect, as the cash deposit rate established for Dorbest in the Final Determination has not been revised in subsequent proceedings. Furthermore, the August 16, 2011, notice identified each company for which the cash deposit rates from the Final Determination continued to be in effect (i.e., any company that obtained a separate rate in the initial investigation which has not been revised or revoked in any subsequent proceeding). However, the Department inadvertently did not remove from this list the companies whose rates had been altered as a result of the recently published final results of administrative review of the Order.^[5] Finally, on October 26, 2007, the Department issued the final results of a changed circumstances review wherein it determined that Tradewinds Furniture Ltd., is the successor-in-interest to Nanhai Jiantai Woodwork Co., Ltd.^[6] However, the Department inadvertently did not acknowledge this successor-in-interest determination in the list of separate-rate qualifying companies contained in the August 16, 2011, notice. This notice corrects these errors, but makes no other changes to the notice released on August 16, 2011. Because these errors were discovered prior to publication in the Federal Register, this amendment is being published in place of the original version released on August 16, 2011.

DATES:

Effective Date: August 13, 2011.

FOR FURTHER INFORMATION CONTACT:

Brendan Quinn, 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].

SUPPLEMENTARY INFORMATION:

Background

On January 5, 2005, the Department published its Final Determination. On August 1, 2005, the Department issued its voluntary remand redetermination wherein it modified the surrogate used to value labor.^[7] On October 31, 2006, the court remanded the Department's Final Determination for further administrative proceedings.^[8] On May 25, 2007, the Department issued its final results of redetermination pursuant to Dorbest I.^[9] In the Dorbest I Remand Redetermination, the Department, pursuant to the Court's opinion and order, modified certain aspects of the Final Determination as follows: (1) Revised the labor rate for Dorbest; (2) recalculated Dorbest's resin surrogate value; (3) recalculated the mirror surrogate value; (4) revised the selection of surrogate company financial statements, by excluding Evergreen International Ltd. (“Evergreen”) and Jayaraja Furniture (“Jayayraja”) from the surrogate financial ratio calculations; (5) eliminated the spare parts discount adjustment to Dorbest's U.S. price; (6) removed non-scope metal parts form Dorbest's normal value calculation; (7) treated certain of Dorbest's incoming raw materials as direct material costs rather than as a deduction from U.S. prices; and (8) recalculated the separate rate, as appropriate based on the remanded components of the margin calculation challenged by the litigants.

On February 27, 2008, the Court remanded the Department's Final Determination for further administrative proceedings.^[10] The Court also granted the Department's request for a voluntary remand on the valuation of Dorbest's cardboard.^[11] On July 15, 2008, the Department issued its final results of redetermination pursuant to Dorbest II.^[12] In the Dorbest II Remand Redetermination, the Department made the following modifications to its Final Determination: (1) Recalculated Dorbest's cardboard surrogate value; (2) revised the selection of surrogate company financial statements by excluding Fusion Design Private Ltd. (“Fusion Design”), DnD's Fine Furniture Pvt., Ltd. (“DnD”), Nizamuddin Furniture Private Ltd. (“Nizamuddin”), and Swaran Furniture Ltd. (“Swaran”) from the surrogate ratio calculations; and (3) recalculated the separate rate pursuant to the Court's instructions. On January 7, 2009, the Court sustained the Department's Dorbest II Remand Redetermination.^[13]

Dorbest and Petitioners each appealed certain aspects of the CIT's final decision in Dorbest III to the Federal Circuit. As a result of this appeal, two issues were remanded to the Department for further administrative proceedings: (1) calculation of the labor wage rate for Dorbest; and (2) the Department's exclusion of four surrogate company financial statements (Fusion Design, DnD, Nizamuddin and Swaran) to derive the financial ratios pursuant to the lower Court's order in Dorbest II.^[14]

The Federal Circuit held that the Department's methodology for valuing labor, and its regulation (19 CFR 351.408) were inconsistent with the statute because the methodology required the use of data from countries that were not economically comparable to the non market economy, and countries that were not significant producers of subject merchandise. The Federal Circuit invalidated the regulation, and remanded with instructions to recalculate Dorbest's labor value in compliance with Section 773(c)(4) of the Tariff Act of 1930, as amended (“the Act”).^[15]

On November 10, 2010, the Department issued its final remand redetermination pursuant to Dorbest IV.^[16] In Dorbest IV Remand Redetermination, the Department recalculated its labor wage rate using data only from countries that met the statutory criteria.^[17] The Department also recalculated the surrogate financial ratios applied to Dorbest, and re-included the financial statements from the four companies it had previously excluded in Remand Redetermination II.^[18]

On February 9, 2011, the CIT remanded the Department's revised labor wage rate calculation, holding that the selection of economically comparable countries appeared arbitrarily biased toward the low end of the per capita gross national income (“GNI”) spectrum, and did not explain why higher income countries were excluded from the starting selection of economically comparable countries.^[19] In Dorbest V, the Court sustained the Department's other data choices.^[20]

On April 27, 2011, Commerce issued its remand redetermination pursuant to Dorbest V.^[21] In Dorbest V Redetermination, the Department expanded the basket of economically comparable countries to also include countries with per capita GNIs above that of China, and revised Dorbest's labor value using data from this expanded basket of countries as its new starting point. On August 3, 2011, the Court sustained Dorbest V Remand Redetermination in Dorbest VI.

Timken Notice

In its decision in Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, the CAFC has 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 August 03, 2011, judgment sustaining the Department's revised surrogate wage rate methodology for the valuation of Dorbest's labor inputs used in the production of wooden bedroom furniture 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. Accordingly, the Department will continue the suspension of liquidation of all enjoined entries, pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision.

Amended Final Determination and Order

Because there is now a final court decision, we are amending the Final Determination and Order to reflect the results of the Dorbest Ltd. v. United States litigation. We have revised the surrogate labor wage rate applicable to Dorbest to 0.44 USD per hour. As a result of this recalculated wage rate, the revised dumping margin for Dorbest for the Final Determination is 2.40 percent. Consistent with the Department's practice to include above de minimis margins in the calculation of the separate rate margin ^[22] the revised amended weighted-average dumping margin for respondents with separate-rate status is now 6.68 percent. The dumping margin determined for the PRC-wide entity remains unchanged.

The Department will issue instructions to U.S. Customs and Border Protection (“CBP”) to revise the cash deposit rates for companies where the cash deposit rates from the Final Determination continue to be in effect .^[23] Accordingly, the Department will instruct CBP to begin collecting cash deposits for Dorbest at the revised rate of 2.40 percent. The Department will further instruct CBP to begin collecting cash deposits at the revised rate of 6.68 percent for the companies listed below: ^[24]

• Alexandre International Corp., or Southern Art Development Ltd., or Alexandre Furniture (Shenzhen) Co., Ltd., or Southern Art Furniture Factory
• Art Heritage International, Ltd., or Super Art Furniture Co., Ltd., or Artwork Metal & Plastic Co., Ltd., or Jibson Industries Ltd., or Always Loyal International
• Billy Wood Industrial (Dong Guan) Co., Ltd., or Great Union Industrial (Dongguan) Co., Ltd., or Time Faith Ltd.
• Changshu HTC Import & Export Co., Ltd.
• Chuan Fa Furniture Factory
• Clearwise Co., Ltd.
• Dongguan Hung Sheng Artware Products Co., Ltd., or Coronal Enterprise Co., Ltd.
• Dongguan Kingstone Furniture Co., Ltd., or Kingstone Furniture Co., Ltd.
• Dongying Huanghekou Furniture Industry Co., Ltd.
• Fortune Glory Industrial Ltd. (H.K. Ltd.) or Tradewinds Furniture Ltd., (Successor-in-interest to Nanhai Jiantai Woodwork Co., Ltd.)
• Guangzhou Maria Yee Furnishings Ltd., Pyla HK, Ltd., and Maria Yee, Inc.
• Hainan Jong Bao Lumber Co., Ltd., or Jibbon Enterprise Co., Ltd.
• Hang Hai Woodcraft's Art Factory
• Jiangmen Kinwai Furniture Decoration Co., Ltd.
• Jiangmen Kinwai International Furniture Co., Ltd.
• Jiangsu Yuexing Furniture Group Co., Ltd.
• Jiedong Lehouse Furniture Co., Ltd.
• Kuan Lin Furniture (Dong Guan) Co., Ltd., or Kuan Lin Furniture Factory, or Kuan Lin Furniture Co., Ltd.
• Kunshan Lee Wood Product Co., Ltd.
• Kunshan Summit Furniture Co., Ltd.
• Leefu Wood (Dongguan) Co., Ltd., or King Rich International, Ltd.
• Locke Furniture Factory, or Kai Chan Furniture Co., Ltd., or Kai Chan (Hong Kong) Enterprise Ltd., or Taiwan Kai Chan Co., Ltd.
• Nantong Dongfang Orient Furniture Co., Ltd.
• Nathan International Ltd., or Nathan Rattan Factory
• Passwell Corporation, or Pleasant Wave Ltd.
• Perfect Line Furniture Co., Ltd.
• Prime Wood International Co., Ltd., or Prime Best International Co., Ltd., or Prime Best Factory, or Liang Huang (Jiaxing) Enterprise Co., Ltd.
• PuTian JingGong Furniture Co., Ltd.
• Qingdao Liangmu Co., Ltd.
• Restonic (Dongguan) Furniture Ltd., or Restonic Far East (Samoa) Ltd.
• RiZhao SanMu Woodworking Co., Ltd.
• Sen Yeong International Co., Ltd., or Sheh Hau International Trading Ltd.
• Shanghai Jian Pu Export & Import Co., Ltd.
• Shanghai Maoji Imp and Exp Co., Ltd.
• Sheng Jing Wood Products (Beijing) Co., Ltd., or Telstar Enterprises Ltd.
• Shenzhen Forest Furniture Co., Ltd.
• Shenzhen Jiafa High Grade Furniture Co., Ltd., or Golden Lion International Trading Ltd.
• Shenzhen New Fudu Furniture Co., Ltd.
• Shenzhen Wonderful Furniture Co., Ltd.
• Songgang Jasonwood Furniture Factory, or Jasonwood Industrial Co., Ltd. S.A.
• Starwood Industries Ltd.
• Strongson Furniture (Shenzhen) Co., Ltd., or Strongson Furniture Co., Ltd., or Strongson (HK) Co.
• Sunforce Furniture (Hui-Yang) Co., Ltd., or Sun Fung Wooden Factory, or Sun Fung Co., or Shin Feng Furniture Co., Ltd., or Stupendous International Co., Ltd.
• Superwood Co., Ltd., or Lianjiang Zongyu Art Products Co., Ltd.
• Techniwood Industries Ltd., or Ningbo Furniture Industries Limited, or Ningbo Hengrun Furniture Co., Ltd.
• Tianjin Phu Shing Woodwork Enterprise Co., Ltd.
• Tube-Smith Enterprise (ZhangZhou) Co., Ltd., or Tube-Smith Enterprise (Haimen) Co., Ltd., or Billonworth Enterprises Ltd.
• U-Rich Furniture (Zhangzhou) Co., Ltd., or U-Rich Furniture Ltd.
• Woodworth Wooden Industries (Dong Guan) Co., Ltd.
• Xiamen Yongquan Sci-Tech Development Co., Ltd.
• Jiangsu XiangSheng Bedtime Furniture Co., Ltd.
• Yeh Brothers World Trade, Inc.
• Zhang Zhou Sanlong Wood Product Co., Ltd.
• Zhangjiagang Daye Hotel Furniture Co., Ltd.
• Zhangjiagang Zheng Yan Decoration Co., Ltd.
• Zhangzhou Guohui Industrial & Trade Co., Ltd.
• Zhongshan Fookyik Furniture Co., Ltd.
• Zhongshan Golden King Furniture Industrial Co., Ltd.
• Zhoushan For-Strong Wood Co., Ltd.

In accordance with section 735(c)(1)(B) of the Act, the Department will instruct CBP to collect cash deposits at the rates indicated above.

This notice is issued and published in accordance with sections 516A(c)(1), 735(d), and 777(i)(1) of the Act.

Dated: August 19, 2011.

Christian Marsh,

Acting Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Final Results of Redetermination Pursuant to Remand, Consol. Court No. 05-00003, Slip Op. 11-14 (CIT, February 9, 2011) (April 27, 2011) (“Dorbest V Remand Redetermination”) .

2.  See Dorbest Limited v. United States, Slip Op. 11-14, Consol. Court No. 05-00003 (Feb. 9, 2011) (“Dorbest V”); and Dorbest Ltd. v. United States, 604 F.3d 1363, 1372-73 (Fed. Cir. 2010) (“Dorbest IV Ruling”) remanded to the Department in Dorbest Limited v. United States, Consol. Court No. 05-00003, Slip Op. 10-79 (July 21, 2010) (“Dorbest IV Remand”) (collectively, “Dorbest IV”).

3.  Final Determination of Sales at Less Than Fair Value: Wooden Bedroom Furniture From the People's Republic of China, 69 FR 67313 (November 17, 2004), and accompanying Issues and Decision Memorandum (“IDM”), as amended by Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture From the People's Republic of China, 70 FR 329 (January 4, 2005) (“Amended Final Determination” and “Order”) (collectively “Final Determination”).

4.  See Dorbest Limited v. United States, Slip Op. 11-95, Consol. Court No. 05-00003 (Aug. 3, 2011) (“Dorbest VI”).

5.  See Wooden Bedroom Furniture from the People's Republic of China: Final Results and Final Rescission in Part, 76 FR 49729 (August 11, 2011). The companies that were incorrectly included in the August 16, 2011, notice, and have been removed from this notice are as follows: Dalian Huafeng Furniture Co., Ltd.; Dongguan Cambridge Furniture Co., or Glory Oceanic Co., Ltd.; Cheng Meng Furniture (PTE) Ltd., or China Cheng Meng Decoration & Furniture (Suzhou) Co., Ltd.; Dongguan Great Reputation Furniture Co., Ltd.; Dongguan Hero Way Woodwork Co., Ltd., or Dongguan Da Zhong Woodwork Co., Ltd., or Hero Way Enterprises Ltd., or Well Earth International Ltd.; Dongguan Kin Feng Furniture Co., Ltd.; Dongguan Liaobushangdun Huada Furniture Factory, or Great Rich (HK) Enterprise Co. Ltd.; Dongguan Singways Furniture Co., Ltd.; Eurosa (Kunshan) Co., Ltd., or Eurosa Furniture Co., (PTE) Ltd.; Garri Furniture (Dong Guan) Co., Ltd., or Molabile International, Inc., or Weei Geo Enterprise Co., Ltd.; Dongguan Grand Style Furniture, or Hong Kong Da Zhi Furniture Co., Ltd.; Hualing Furniture (China) Co., Ltd., or Tony House Manufacture (China) Co., Ltd., or Buysell Investments Ltd., or Tony House Industries Co., Ltd.; Jardine Enterprise, Ltd.; Nanhai Baiyi Woodwork Co., Ltd.; Season Furniture Manufacturing Co., or Season Industrial Development Co.; Shenyang Shining Dongxing Furniture Co., Ltd. ; Wanhengtong Nueevder (Furniture) Manufacture Co., Ltd., or Dongguan Wanengtong Industry Co., Ltd.; Zhong Shan Fullwin Furniture Co., Ltd.; Zhanjiang Sunwin Arts & Crafts Co., Ltd.; Dongguan Creation Furniture Co., Ltd., or Creation Industries Co., Ltd.; Jiangsu Weifu Group Fullhouse Furniture Manufacturing Corp.; Link Silver Ltd. (V.I.B.), or Forward Win Enterprises Co. Ltd., or Dongguan Haoshun Furniture Ltd.; Nantong Yushi Furniture Co., Ltd.; Shenzhen Xiande Furniture Factory; Tarzan Furniture Industries Ltd., or Samso Industries Ltd.; and Tianjin Master Home Furniture.

6.  See Wooden Bedroom Furniture From the People's Republic of China: Final Results of Antidumping Duty Changed Circumstances Review, 72 FR 60812 (October 20, 2007).

7.  Wooden Bedroom Furniture From the PRC: Final Results of Redetermination Pursuant to the Court Remand Orders, Court No. 05-00003 (August 1, 2005) (“Labor Remand Redetermination”).

8.  Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (CIT 2006) (“Dorbest I”).

9.  See Final Results of Redetermination Pursuant to Court Remand, Court No. 05-00003 (May 25, 2007) (“Dorbest I Remand Redetermination”).

10.  See Dorbest Ltd. v. United States, 547 F. Supp. 2d 1321 (CIT 2008) (“Dorbest II”).

11.  See id.

12.  See Final Results of Redetermination Pursuant to Court Remand, Court No. 05-00003, July 15, 2008 (“Dorbest II Remand Redetermination”).

13.  See Dorbest Ltd. v. United States, 602 F. Supp. 2d 1287 (CIT 2009) (“Dorbest III”); See also Wooden Bedroom Furniture From the People's Republic of China: Notice of Court Decision Not in Harmony, 74 FR 5818 (February 2, 2009).

14.  See Dorbest IV, 604 F.3d at 1363.

15.  See Dorbest IV Order, 604 F.3d at 1372-73.

16.  See Final Results of Redetermination Pursuant to Remand, Consol. Court No. 05-00003, Slip Op. 10-79 (CIT, July 21, 2010) (November 10, 2010) (“Dorbest IV Remand Redetermination”) .

17.  See Dorbest IV Remand Redetermination, at 8.

18.  See Dorbest IV Remand Redetermination at 4.

19.  See Dorbest V at 14-17.

20.  See Dorbest V at 28.

21.  See Dorbest V Remand Redetermination.

22.  See, e.g., Preliminary Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China, 71 FR 77373, 77377 (December 26, 2006), unchanged in Final Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China, 72 FR 19690 (April 19, 2007).

23.  Since the Final Determination, new cash deposit rates have been established for several companies that qualified for separate-rate status during the investigation. The Department will not issue revised cash deposit instructions for these companies.

24.  The companies listed herein include those which received a separate rate in the initial Final Determination but have not since received another separate rate (e.g., as a respondent in the context of an administrative review) nor lost their separate rate during a subsequent administrative review.