E7-18069. Certain Automotive Replacement Glass Windshields from The People's Republic of China: Notice of Decision of the Court of International Trade Not in Harmony

AGENCY:

Import Administration, International Trade Administration, U.S. Department of Commerce.

SUMMARY:

On June 28, 2007, the United States Court of International Trade (“Court”) entered a final judgment in Xinyi Automotive Glass v. United States sustaining the third remand results made by the Department of Commerce (“the Department”) pursuant to the Court's remand of the final determination with respect to Certain Automotive Replacement Glass Windshields from the People's Republic of China (“PRC”) in Slip Op. 06-21 (CIT February 15, 2006). See Xinyi Automotive Glass v. United States, Ct. No. 02-00321, Judgment (Ct. Int'l Trade June 28, 2007) (“Xinyi”). This case arises out of the Department's Antidumping Duty Order on Certain Automotive Replacement Glass Windshields from the People's Republic of China, 67 FR 16087 (April 4, 2002) (“Order”). The final judgment in this case was not in harmony with the Department's Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields From the People's Republic of China, 67 FR 6482 (February 12, 2002) (“Final Determination”), and accompanying Issues and Decisions Memorandum (“Decision Memo”), as amended at 67 FR 11670 (March 15, 2002), covering the period of investigation (“POI”), July 1, 2000 through December 31, 2000.

EFFECTIVE DATE:

July 8, 2007.

FOR FURTHER INFORMATION CONTACT:

Gene Degnan, 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

Plaintiffs, Fuyao Glass Industry Group Co., Ltd. (“Fuyao”) and Xinyi Automotive Glass Co., Ltd. (“Xinyi”), initially in separate lawsuits, contested several aspects of the Final Determination, including the Department's decision to disregard certain market economy inputs. On August 6, 2002, all law suits challenging the Final Determination, including Xinyi's lawsuit, were consolidated into Fuyao Glass Industry Group Co., Ltd. v. United States, Consol. Court No. 02-00282, 2006 Ct. Int'l Trade Lexis 21, Slip Op. 2006-21 (CIT February 15, 2006) (“Fuyao Glass III”). On February 15, 2006, while the cases were still consolidated, the court remanded the Department's decision regarding certain market economy inputs to the Department. In its remand to the Department, the Court concluded with respect to the standard applied in the Department's analysis, that the Department must conduct its analysis “in accordance with the court's finding with respect to the use of the word 'are' rather than 'may be' when applying its subsidized price methodology.” Fuyao Glass III, Slip Op. P. 9. The Court further directed the Department to either (1) “concur with the court's conclusions with respect to substantial evidence, or (2) re-open the record . . .” Fuyao Glass III, Slip Op. p. 7. The Court concluded that it does not find the Department's determination, that prices from Korea and Indonesia are subsidized, is supported by substantial record evidence. See Fuyao Glass III, Slip Op. p. 16. Pursuant to the Court's ruling, and under respectful protest, the Department concurred that the record evidence does not contain substantial evidence to support a conclusion that prices from Korea and Indonesia are subsidized. See Viraj Group v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). Because the Court found that the evidence on the record does not support the Department's determination to disregard prices from Korea and Indonesia, in the remand results, the Department determined to calculate the dumping margin for Fuyao and Xinyi based upon prices the plaintiffs actually paid to suppliers located in Korea and Indonesia.

On January 8, 2007, Xinyi's action was severed from the consolidated action. See Court Order of January 8, 2007, in Ct. No. 02-00282. On June 28, 2007, the court issued a final judgment, wherein it affirmed the Department's third remand results with respect to Xinyi's action.

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. The Court's decision in Xinyi on June 28, 2007, 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 issue revised instructions to U.S. Customs and Border Protection if the Court's decision is not appealed or if it is affirmed on appeal.

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

Dated: September 7, 2007.

David M. Spooner,

Assistant Secretary for Import Administration.