2011-26213. Chlorinated Isocyanurates From the People's Republic of China: Notice of Court Decision Not in Harmony With the Final Results of Administrative Review and Notice of Amended Final Results of Administrative Review Pursuant to Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: September 23, 2011.

SUMMARY:

On September 13, 2011, the United States Court of International Trade (“Court” or “CIT”) sustained the Department of Commerce's (“Department”) final results of redetermination pursuant to the Court's remand.^[1] Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“CAFC”) 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 and is amending the final results of the administrative review (“AR”) of the antidumping duty order on chlorinated isocyanurates from the People's Republic of China (“PRC”) covering the period of review (“POR”) of December 16, 2004, through May 31, 2006.^[2]

FOR FURTHER INFORMATION CONTACT:

Bobby Wong, 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

In Chlorinated Isocyanurates from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 72 FR 39053 (July 17, 2007) (“Preliminary Results”), the Department granted Hebei Jiheng Chemicals, Co., Ltd. (“Jiheng”) by-product offsets for chlorine, ammonia gas, hydrogen, and recovered sulfuric acid. However, in the Final Results, the Department denied Jiheng these by-product offsets, stating that Jiheng had not provided the Department with the information necessary to grant the by-product offsets. See Final Results, 73 FR at 160; see also Issues and Decision Memo at Comment 15. Specifically, the Department found that Jiheng had failed to provide documentation supporting the claimed production quantities of by-products. Id.

On July 13, 2009, pursuant to Arch Chemicals, Inc. v. United States, Consol. Court No. 08-00040, Slip. Op. 09-71 (“Arch Chemicals I”), the Court instructed the Department to reopen the record of the underlying review and provide Jiheng with sufficient opportunity to submit documentation relevant to the methodology the Department employs in its by-product analysis. On December 22, 2009, in its final remand redetermination, the Department granted Jiheng a by-product offset for its production of chlorine, ammonia gas, hydrogen, and sulfuric acid recovered during the POR.

However, after reviewing interested parties' comments with respect to the Arch Chemicals I final remand redetermination, the Department requested a voluntary remand to reconsider our results with regard to Jiheng's hydrogen gas, sulfuric acid, and chlorine gas by-products. The Court issued an order granting the Department's request to reconsider and fully explain Jiheng's hydrogen gas, sulfuric acid, and chlorine gas by-products offsets. See Arch Chemicals, Inc. and Hebei Jiheng Chemicals, Co., Ltd. v. United States, Consol. Court No. 08-00040 (April 22, 2010) (“Arch Chemicals II”). On June 21, 2010, the Department filed the results of its voluntary remand redetermination.

On April 15, 2011, while affirming other aspects of the Department's remand redetermination in Arch Chemicals II, the Court found that Jiheng was not entitled to an offset for chlorine gas discharged during liquefaction because this portion of chlorine gas was not attributable to subject merchandise production. In Arch Chemicals III, the Court remanded the proceeding to the Department to eliminate the by-product offset for this portion of chlorine gas and to recalculate the antidumping margin for Jiheng accordingly.

On July 15, 2011, in the Department's final remand redetermination pursuant to Arch Chemicals III, and in response to the Court's ruling, the Department removed the quantity of chlorine gas discharged as a result of the liquefaction process of purified chlorine during the chlor-alkali stage of production from Jiheng's by-product offset.

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 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. The CIT's decision in Arch Chemicals III, issued on September 13, 2011, constitutes a final decision of that Court that is not in harmony with the Department's Final Results and Amended Final Results. 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. The cash deposit rate will remain the company-specific rate established for the subsequent and most recent period during which the respondent was reviewed. See Chlorinated Isocyanurates from the People's Republic of China: Final Results of 2008-2009 Antidumping Duty Administrative Review, 75 FR 70212 (November 17, 2010), as amended, 75 FR 76699 (December 9, 2010).

Amended Final Results

Because there is now a final court decision, we are amending the Final Results to reflect the results of the Arch Chemicals III litigation. The revised dumping margin is:

Exporter	Percent margin
Hebei Jiheng Chemicals, Co., Ltd.	9.19

In the event the CIT's ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from Jiheng on the revised assessment rate calculated by the Department.

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

Dated: September 30, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Arch Chemicals, Inc. and Hebei Jiheng Chemicals, Co., Ltd. v. United States and Clearon Corporation and Occidental Chemical Corporation, Court No. 08-00040: Final Results of Redetermination Pursuant To Remand, dated July 15, 2011 (“Arch Chemicals III”).

2.  See Chlorinated Isocyanurates from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 73 FR 153 (January 8, 2008). (“Final Results”), and accompanying Issues and Decision Memorandum, and as amended by Chlorinated Isocyanurates From the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review, 73 FR 9091 (February 19, 2008) (“Amended Final Results”).