[Federal Register Volume 77, Number 24 (Monday, February 6, 2012)]
[Notices]
[Pages 5769-5770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2737]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-933]
Frontseating Service Valves From the People's Republic of China:
Notice of Court Decision Not in Harmony With Final Determination and
Notice of Amended Final Determination and Antidumping Duty Order
Pursuant to Court Decision
SUMMARY: On January 27, 2012, the United States Court of International
Trade (``CIT'') sustained the Department of Commerce's (``the
Department'') final results of redetermination pursuant to the CIT's
remand order in Zhejiang DunAn Hetian Metal Co., Ltd. v. United States,
Court No. 09-00217, Slip Op. 11-120 (CIT Sept. 28, 2011)
(``Remand'').\1\
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\1\ See Final Results Of Redetermination Pursuant To Court
Remand, Court No. 09-00217, dated January 4, 2012, available at:
http://www.ia.ita.doc.gov/remands/index.html (``FSV
Redetermination'').
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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 with the
Department's final determination and is amending the final
determination of the less-than-fair-value investigation of frontseating
service valves (``FSVs'') from the People's Republic of China (``PRC'')
with respect to the margin assigned to Zhejiang DunAn Hetian Metal Co.,
Ltd. (``DunAn'') covering the period of investigation (``POI'') July 1,
2007, through December 31, 2007, and the antidumping order.\2\
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\2\ Frontseating Service Valves from the People's Republic of
China: Final Determination of Sales at Less than Fair Value and
Final Negative Determination of Critical Circumstances, 74 FR 10886
(March 13, 2009) and accompanying Issues and Decision Memorandum
(``Final Determination'') and Antidumping Duty Order: Frontseating
Service Valves from the People's Republic of China, 74 FR 19196
(April 28, 2009), as corrected, Notice of Correction to Antidumping
Duty Order: Frontseating Service Valves From the People's Republic
of China, 74 FR 26204 (June 1, 2009) (``Order'').
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DATES: Effective Date: February 6, 2012.
FOR FURTHER INFORMATION CONTACT: Eve Wang, Office 8, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue NW., Washington, DC
20230; telephone: (202) 482-6231.
SUPPLEMENTARY INFORMATION: In the Final Determination, the Department
applied partial adverse facts available (``AFA'') to DunAn because we
found at verification that DunAn misreported the sales quantities of
certain models of the merchandise under investigation sold in December
2007. As partial AFA, the Department applied the petition rate of 55.62
percent to all of the reported December 2007 sales of these certain
models. On September 28, 2011, the Court of International Trade
remanded the Final Determination to the Department, following a prior
proceeding in which the Court of Appeals for the Federal Circuit
(``CAFC'') held that the Department is only permitted to apply partial
AFA to information which was missing from the record, namely, the
quantity of certain models of FSVs sold in December 2007.\3\
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\3\ See Zhejiang Dunan Hetian Metal Co., Ltd. v. United States,
652 F.3d 1333, 1348 (Fed. Cir. 2010).
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The Court also granted the Department's request for a voluntary
remand to recalculate the surrogate labor rate for DunAn in accordance
with the CAFC's holding in Dorbest Ltd. v. United States, 604 F.3d 1363
(Fed. Cir. 2010) (``Dorbest'').\4\ In Dorbest, the CAFC held that the
Department's ``regression-based method for calculating wage rates as
stipulated by 19 CFR 351.408(c)(3) uses data not permitted by the
statutory requirements laid out in section 773 of the Tariff Act of
1930, as amended (the ``Act'').'' \5\ Specifically, the CAFC
interpreted section 773(c) of the Act to require the use of data from
market economy countries that are both economically comparable to the
non-market economy (``NME'') country at issue and significant producers
of the subject merchandise, unless such data are unavailable. Because
the Department's regulation requires the Department to use data from
economically dissimilar countries and from countries that do not
produce comparable merchandise, the CAFC invalidated the Department's
labor regulation (19 CFR 351.408(c)(3)). On June 21, 2011, the
Department revised its labor calculation methodology for valuing an NME
respondent's cost of labor in NME antidumping proceedings.\6\ In Labor
Methodologies, the Department found that the best methodology for
valuing the NME respondent's cost of labor is to use the industry-
specific labor rate from the surrogate country. Additionally, the
[[Page 5770]]
Department found that the best data source for calculating the
industry-specific labor rate for the surrogate country is the data
reported under ``Chapter 6A: Labor Cost in Manufacturing'' from the ILO
Yearbook of Labor Statistics.\7\
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\4\ See id. at 1349.
\5\ See Dorbest, 604 F.3d at 1372.
\6\ See Antidumping Methodologies in Proceedings Involving Non-
Market Economies: Valuing the Factor of Production: Labor, 76 FR
36092 (June 21, 2011) (``Labor Methodologies'').
\7\ See id., at 39063.
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On January 5, 2012, the Department issued the FSV Redetermination.
Pursuant to Remand, we applied partial AFA to DunAn's misreported sales
quantity using adverse inferences solely with respect to quantity.
Specifically, we assigned to the total quantity of misreported sales to
the higher CONNUM-specific margin of the two CONNUMs in question.
Additionally, pursuant to Dorbest and Labor Methodologies, we revised
the wage rate calculation methodology to comply with the CAFC's
interpretation of section 773 of the Act. The Department's
redetermination resulted in changing DunAn's margin from 12.95 percent
to 11.83 percent. On January 27, 2012, the Court of International Trade
affirmed the FSV Redetermination.\8\
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\8\ Zhejiang DunAn Hetian Metal Co., Ltd. v. United States, Ct.
No. 09-00217, Slip Op. 12-13 (Jan. 27. 2012).
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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(c) 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 January 27, 2012 judgment sustaining the Department's remand
redetermination with respect to DunAn 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.
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 litigation.
The revised weighted-average dumping margin is as follows:
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Percent
Exporter/producer combination margin
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Exporter: Zhejiang DunAn Hetian Metal Co., Ltd.
Producer: Zhejiang DunAn Hetian Metal Co., Ltd............... 11.83
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DunAn participated in the first administrative review of the
antidumping duty order on FSV's, and received a cash deposit rate, so
the rate listed above will not be applied as a cash deposit rate for
DunAn.\9\ This notice is issued and published in accordance with
sections 516A(c)(1), 735(d) and 777(i)(1) of the Act.
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\9\ See Frontseating Service Valves from the People's Republic
of China: Final Results of the 2008-2010 Antidumping Duty
Administrative Review of the Antidumping Duty Order, 76 FR 70706
(November 15, 2012).
Dated: February 1, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-2737 Filed 2-3-12; 8:45 am]
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