[Federal Register Volume 78, Number 54 (Wednesday, March 20, 2013)]
[Notices]
[Pages 17183-17184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-06409]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-890]
Wooden Bedroom Furniture From the People's Republic of China:
Notice of Court Decision Not in Harmony With Final Scope Ruling and
Notice of Amended Final Scope Ruling Pursuant to Court Decision
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On March 6, 2013, the United States Court of International
Trade (``CIT'' or ``the Court'') sustained the Department of Commerce's
(``the Department'') final results of second remand determination,
which construed that the scope of the order \1\ excludes Legacy Classic
Furniture, Inc.'s (``Legacy'') Heritage Court Bench pursuant to the
CIT's remand order in Legacy Classic Furniture v. United States, Court
No. 10-00352, Slip Op. 12-121 (September 19, 2012) (``Legacy II'').\2\
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 scope ruling and is amending its final scope ruling on Legacy's
Heritage Court Bench.\3\
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\1\ See Notice of Amended Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Wooden Bedroom Furniture
from the People's Republic of China, 70 FR 329 (January 4, 2005)
(``WBF Order'').
\2\ See Final Results of Redetermination Pursuant to Remand,
Court No. 10-00352, dated January 4, 2013 (``Remand Results II'').
\3\ See Memorandum regarding Wooden Bedroom Furniture from the
People's Republic of China: Scope Ruling on Legacy Classic
Furniture, Inc.'s Heritage Court Bench, dated November 22, 2010
(``Final Scope Ruling'').
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DATES: Effective Date: March 16, 2013.
FOR FURTHER INFORMATION CONTACT: Lori Apodaca, AD/CVD Operations,
Office 4, Import Administration--International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue NW,
Washington, DC, 20230; telephone (202) 482-4551.
SUPPLEMENTARY INFORMATION:
Background
On June 16, 2010, Legacy requested a ruling by the Department to
determine whether the Heritage Court Bench, an
[[Page 17184]]
item it imports and describes as a bench, is outside of the scope of
the WBF Order. In the Final Scope Ruling, the Department stated that it
was required to look beyond the factors provided under 19 CFR
351.225(k)(1) because the descriptions of the merchandise were not
dispositive. Accordingly, the Department considered the five factors
set out in 19 CFR 351.225(k)(2) (``(k)(2) factors'') and concluded that
the Heritage Court Bench is covered by the scope of the WBF Order.
Legacy appealed the Final Scope Ruling. In Legacy I,\4\ the Court
affirmed the Department's determination that the factors at 19 CFR
351.225(k)(1) were not dispositive, but held that the conclusion made
by the Department regarding the five (k)(2) factors was not supported
by substantial record evidence and, therefore, must be set aside and
reconsidered. Thus, the Court ordered the Department to reconsider each
of the five factors set out in 19 CFR 351.225(k)(2). In response to the
Court's remand, the Department issued its Remand Results \5\
determining that the Heritage Court Bench is covered by the scope based
on the (k)(2) factors. In Legacy II, upon review of the Remand Results,
the Court revisited its conclusion regarding the 19 CFR 351.225(k)(1)
factors and ordered the Department to reconsider whether the 19 CFR
351.225(k)(1) factors are dispositive in determining whether the
Heritage Court Bench is covered by the scope of the WBF Order.\6\ The
Court also held that the Department's determination regarding the
(k)(2) factors was unsupported by substantial evidence.\7\ Pursuant to
the Court's order in Legacy II, in Remand Results II, we determined
that the Heritage Court Bench is excluded from the scope of the WBF
Order.\8\ The CIT sustained the Department's Remand Results II on March
6, 2013.\9\
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\4\ Legacy Classic Furniture, Inc. v. United States, 807 F.
Supp. 2d 1353 (Ct. Int'l Trade 2011) (``Legacy I'').
\5\ See Final Results of Redetermination Pursuant to Remand,
Court No. 10-00352, dated March 22, 2012 (``Remand Results'').
\6\ See Legacy II, Slip Op. 12-121 at 15-21.
\7\ Id. at 14-15.
\8\ The Department noted in Remand Results II that it was
conducting the remand respectfully under protest. See Viraj Group,
Ltd. v. United States, 343 F.3d 1371 (Fed. Cir. 2003).
\9\ See Legacy II.
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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(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 March 6, 2013,
judgment sustaining the Department's Remand Results II construing the
scope of the WBF Order as excluding Legacy's Heritage Court Bench,
constitutes a final decision of that court that is not in harmony with
the Department's Final Scope Ruling. This notice is published in
fulfillment of the publication requirements of Timken. Accordingly, the
Department will continue the suspension of liquidation of Legacy's
Heritage Court Bench from the People's Republic of China pending the
expiration of the period of appeal or, if appealed, pending a final and
conclusive court decision. The cash deposit rate on Legacy's Heritage
Court Bench will be zero percent.
Amended Final Scope Ruling
Because there is now a final court decision with respect to
Legacy's Heritage Court Bench, the Department amends its Final Scope
Ruling and now finds that the scope of the WBF Order excludes Legacy's
Heritage Court Bench. The Department will instruct U.S. Customs and
Border Protection (``CBP'') that the cash deposit rate on Legacy's
Heritage Court Bench will be zero percent. In the event the CIT's
ruling is not appealed or, if appealed, upheld by the CAFC, the
Department will instruct CBP to liquidate entries of Legacy's Heritage
Court Bench without regard to antidumping duties, and to lift
suspension of liquidation of such entries.
This notice is issued and published in accordance with section
516A(c)(1) of the Act.
Dated: March 14, 2013.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2013-06409 Filed 3-19-13; 8:45 am]
BILLING CODE 3510-DS-P