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Heavy Forged Hand Tools From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of Administrative Review

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On November 20, 2007, the United States Court of International Trade (“CIT”) sustained the remand redetermination issued by the Department of Commerce (“the Department”) pursuant to the CIT's remand of the final results of the twelfth administrative review of the antidumping duty orders on heavy forged hand tools from the People's Republic of China. See Shandong Huarong Machinery Co. Ltd., Shandong Machinery Import & Export Corporation, Liaoning Machinery Import & Export Corporation, and Tianjin Machinery Import & Export Corporation v. United States, Slip Op. 07-169 (CIT, 2007) (“Shandong Huarong II”). On January 8, 2008, the CIT released the public version of this opinion. This case Start Printed Page 3237arises out of the Department's final results in the administrative review covering the period February 1, 2002, through January 31, 2003. See Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Final Results of Antidumping Duty Administrative Reviews, Final Partial Rescission of Antidumping Duty Administrative Reviews, and Determination Not to Revoke in Part, 69 FR 55581 (September 15, 2004) (“Final Results”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that Shandong Huarong II is not in harmony with the Department's Final Results.

EFFECTIVE DATE:

January 17, 2008.

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FOR FURTHER INFORMATION CONTACT:

Thomas Martin, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Ave., NW., Washington, DC 20230; telephone: (202) 482-3936.

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SUPPLEMENTARY INFORMATION:

In Shandong Huarong Machinery Co. Ltd., Liaoning Machinery Import & Export Corp. Ltd., Shandong Machinery Import & Export Corp., and Tianjin Machinery Import & Export Corp. v. United States and Ames True Temper, Court No. 04-00460, Slip Op. 06-88 (June 9, 2006) (“Shandong Huarong I”), the CIT remanded the underlying final results of review to the Department to: (1) Explain why the failure of Shandong Huarong Machinery Co., Ltd. (“Huarong”) and Tianjin Machinery Import & Export Corporation (“Tianjin”) to report information on scrapers and forged tampers, respectively, justifies the use of total adverse facts available (“AFA”), rather than just partial AFA, pursuant to sections 776(a) and (b) of the Tariff Act of 1930 (the “Act”), for the axe/adze order for Huarong and the bar/wedge order for Tianjin; (2) provide a factual basis showing that the rate calculated for Tianjin is a reasonable estimate of its actual rate plus an added amount to encourage cooperation; (3) explain how the Department's commercial quantities methodology fulfills the purpose of 19 CFR 351.222(e)(1), in relation to its refusal to revoke Shandong Machinery Import & Export Corporation (“SMC”) from the hammers/sledges order; (4) analyze further the issue of valuation of steel pallets manufactured by certain hand tool factories; (5) revisit its decision that certain miscellaneous handling expenses are not included in the surrogate price of foreign brokerage and handling and, if the Department continues to find that the handling expenses in question are not in the surrogate price of brokerage and handling, to provide a thorough explanation; (6) explain why its decision to analyze market economy (“ME”) purchases of ocean freight in aggregate is reasonable; and (7) explain further its decision to deny the request for a circumstance of sale (“COS”) adjustment to Tianjin's normal value (“NV”).

The Department released the Draft Results of Redetermination Pursuant to Court Remand (“Draft Redetermination”) to the petitioner, Ames True Temper (“Ames”), and the respondents for comment on December 15, 2006. The Department received comments from both Ames and the respondents on December 29, 2006. On January 12, 2007, the Department issued to the CIT its final results of redetermination pursuant to Shandong Huarong I. See Final Results of Redetermination Pursuant to Court Remand, Court No. 04-00460, (January 12, 2007) (“Final Redetermination”), found at http://ia.ita.doc.gov/​remands/​06-88.pdf. In the remand redetermination the Department did the following: (1)(a) Explained that AFA was applied to all of Huarong's sales of axes/adzes, pursuant to sections 776(a) and (b) of the Act, because it failed to report requested information regarding its production and sales of scrapers, which are subject to the axes/adzes order; (1)(b) explained that total AFA was applied to Tianjin's sales of bars/wedges because, in part, it failed to report its sales of forged tampers, which are subject to the bars/wedges order; (2) redetermined an AFA rate for Tianjin's sales of merchandise covered by the bars/wedges order; (3) explained that the period of investigation (“POI”) sales quantity is a valid benchmark for determining whether the respondent sold in commercial quantities because it represents the respondent's behavior without the discipline of an antidumping order; (4) included in the Department's calculation of NV the cost of labor and welding rod consumed in making steel pallets; (5) examined the record of Stainless Steel Wire Rod From India; Final Results of Administrative Review, 63 FR 48184 (September 9, 1998), and concluded that the brokerage and handling surrogate value included all expenses noted by the petitioner, except those that the record does not show were incurred; (6) chose to continue to apply the respondents' average ME ocean freight expense to sales shipped with non-market economy (“NME”) carriers; and (7) continued to deny the petitioner's request for a COS adjustment to Tianjin's NV because there was insufficient detail to determine whether there was a correlation between the expenses incurred by Tianjin and the surrogate producer. The Department recalculated the antidumping duty rates applicable to SMC's sale of bars/wedges and Tianjin's sales of axes/adzes, bars/wedges, hammers/sledges, and picks/mattocks as a result of the Department's modifications to NV. The Department made no change to the antidumping duty rates of Huarong's and Liaoning Machinery Import & Export Corporation's sales of bars/wedges. On November 20, 2007, the CIT sustained all aspects of the remand redetermination made by the Department pursuant to the CIT's remand of the Final Results.

In its decision in Timken, 893 F.2d at 341, 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. As a result of the Department's addition of the cost of labor and welded rod consumed in making steel pallets in the remand redetermination, the CIT's decision in this case on November 20, 2007, constitutes a final decision of the court that is not in harmony with the Department's Final Results. 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, pending a final and conclusive court decision. In the event the CIT's ruling is not appealed or, if appealed, upheld by the Federal Circuit, the Department will instruct U.S. Customs and Border Protection to revise the cash deposit rates covering the subject merchandise.

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

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Dated: January 11, 2008.

Stephen J. Claeys,

Deputy Assistant Secretary for Import Administration.

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[FR Doc. E8-789 Filed 1-16-08; 8:45 am]

BILLING CODE 3510-DS-P