05-19506. Notice of Decision of the Court of International Trade: Certain Cased Pencils from the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On August 23, 2005, the Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) redetermination regarding the 1999-2000 antidumping duty administrative review of certain cased pencils (pencils) from the People's Republic of China (PRC). Pursuant to the Court's remand order, in its redetermination the Department assigned Guangdong Provincial Stationery & Sporting Goods Import & Export Corp. (Guangdong) a cash deposit rate of 13.91 percent, rather than the PRC-wide rate assigned to the company in the contested administrative review. Consistent with the decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in The Timken Company v. United States and China National Machinery and Equipment Import and Export Corporation, 893 F. 2d 337 (Fed. Cir. 1990) (Timken), the Department is publishing this notice of the CIT's decision which is not in harmony with the Department's determination in the 1999-2000 antidumping duty administrative review of pencils from the PRC.

EFFECTIVE DATE:

September 29, 2005.

FOR FURTHER INFORMATION CONTACT:

Magd Zalok or Howard Smith at [phone] or [phone], respectively; AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

On December 28, 1994, the Department published the antidumping duty order on pencils from the PRC. See Antidumping Duty Order: Certain Cased Pencils from the People's Republic of China, 59 FR 66,909 (December 28, 1994). The Department excluded from this order Guangdong's U.S. sales of pencils produced by Three Star Stationery Industry Corp. (Three Star). However, in the final determination that gave rise to the antidumping duty order, the Department stated that if Guangdong sold subject merchandise to the United States that was produced by manufacturers other than Three Star, such sales would be subject to a cash deposit rate equal to the rate applied to the PRC entity. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cased Pencils from the People's Republic from China, 59 FR 55625, 55627 (November 8, 1994), see also Certain Cased Pencils From the People's Republic of China; Notice of Amended Final Determination of Sales at Less Than Fair Value and Amended Antidumping Duty Order in Accordance With Final Court Decision, 64 FR 25275 (May 11, 1999).

In the 1999-2000 antidumping duty administrative review of pencils from the PRC, the Department “collapsed” Three Star with another entity, China First Pencil Co. Ltd. (China First), based upon information that came to light late in the review. Further, the Department determined that the combined entity, China First/Three Star, was distinct from the Three Star whose factors of production formed the basis for excluding Guangdong from the order. Because there was no information on the record of the 1999-2000 review from which to calculate a dumping margin for Guangdong, consistent with the investigation in this proceeding, in the final results of review the Department assigned Guangdong's sales of China First/Three Star produced subject merchandise a cash deposit rate equal to the PRC-wide rate. See Certain Cased Pencils from the People's Republic of China: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 67 FR 48,612 (July 25, 2002), as amended in Notice of Amended Final Results and Partial Rescission of Antidumping Duty Administrative Review: Certain Cased Pencils from the People's Republic of China, 67 FR 59,049 (September 19, 2002).

Respondents in the 1999-2000 administrative review filed a motion of judgement upon the agency record contesting the final results of that review. After considering the respondents' arguments, the CIT remanded the case to the Department instructing it to, among other things, reevaluate the PRC-wide rate applied to Guangdong because the Court found the Department had effectively applied adverse facts available to a participating and cooperative respondent. See Kaiyuan Group Corp., et al v. United States and the Pencil Section Writing Instrument Manufacturers Ass'n, et al., 343 F. Supp. 2d 1289 (May 14, 2004) (Kaiyuan I). Consistent with the Court's direction, under protest, in its redetermination the Department assigned Guangdong a cash deposit rate based on the weighted-average of the margins calculated for other respondents in the 1999-2000 administrative review. On August 23, 2005, the CIT sustained the Department's remand redetermination. See Kaiyuan Group Corp., et al v. United States and the Pencil Section Writing Instrument Manufacturers Association, et al. Slip Op. 05-103 (Kaiyuan II).

Notification

In its decision in Timken, the Federal Circuit held that, pursuant to 19 U.S.C. 1516a(e), the Department must publish notice of a CIT decision which is “not in harmony” with the Department's determination. The CIT's decisions in Kaiyuan I & II regarding the rate assigned to Guangdong are not in harmony with the Department's determination in the final results of the 1999-2000 antidumping duty administrative review of pencils from the PRC. Therefore, publication of this notice fulfills the Department's obligation under 19 U.S.C. 1516a(e).

The Department will continue to suspend liquidation pending the expiration of the period to appeal the CIT's August 23, 2005, decision, or, if that decision is appealed, pending a “conclusive” decision by the Federal Circuit. Upon expiration of the period to appeal, or if the CIT's decision is appealed and the Federal Circuit's decision is not in harmony with the Department's determination in the 1999-2000 antidumping duty administrative review of pencils from the PRC, the Department will publish in the Federal Register a notice of amended final results for the 1999-2000 administrative review of pencils.

Dated: September 22, 2005.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.