[Federal Register Volume 81, Number 51 (Wednesday, March 16, 2016)]
[Notices]
[Pages 14086-14087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-05942]
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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: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On February 29, 2016, the United States Court of International
Trade (``CIT'' or ``Court'') sustained the Department of Commerce's
(``Department'') final results of redetermination \1\ in which the
Department determined, under protest, that four chests of Ethan Allen
Operations, Inc. (``Ethan Allen'') are not subject to the scope of the
WBF Order,\2\ pursuant to the CIT's remand order in Ethan Allen
Operations, Inc. v. United States, Consol. Court No. 14-00147 (December
1, 2015) (``Ethan Allen'').
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\1\ Ethan Allen Operations, Inc. v. United States, Court No. 14-
000147, Slip Op. 16-19 (CIT February 29, 2016) (``Ethan Allen II''),
which sustained the Final Results of Redetermination Pursuant to
Court Order, Ethan Allen Operations, Inc. v. United States, dated
February 11, 2016 (``Final Remand Results'').
\2\ 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'').
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Consistent with the decision of the United States Court of Appeals
for the Federal Circuit (``CAFC'') in Timken,\3\ as clarified by
Diamond Sawblades,\4\ the Department is notifying the public that the
Court's final judgment in this case is not in harmony with the
Department's Ethan Allen Scope Ruling and is therefore amending its
final scope ruling.\5\
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\3\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (``Timken'').
\4\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (``Diamond Sawblades'').
\5\ See Memorandum to Christian Marsh, Deputy Assistant
Secretary for Antidumping and Countervailing Duty Operations,
``Wooden Bedroom Furniture from the People's Republic of China:
Scope Ruling on Ethan Allen Operations Inc.'s Chests'' (May 27,
2014) (``Ethan Allen Scope Ruling'').
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DATES: Effective Date: March 10, 2016.
FOR FURTHER INFORMATION CONTACT: Cara Lofaro, Office IV, Enforcement
and Compliance, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue NW., Washington, DC,
20230; telephone: (202) 482-5720.
SUPPLEMENTARY INFORMATION:
Background
On May 27, 2014 the Department issued the Ethan Allen Scope Ruling,
in which it determined that Ethan Allen's Marlene, Nadine, and
Serpentine chests were subject to the WBF Order based on an analysis
under 19 CFR 351.225(k)(1), and that the Vivica chest was also subject
merchandise based on an analysis of the factors under both 19 CFR
351.225(k)(1) and (k)(2) (the ``(k)(2) analysis''). The Department then
requested a voluntary remand to allow further notice to, and comment
from, parties on its (k)(2) analysis of the Vivica chest, which the
Court granted. In the Voluntary Remand Results, the Department
responded to the arguments of the parties to the dispute and
determined, again, based on a (k)(2) analysis, that Ethan Allen's
Vivica chest is subject to the scope of the WBF Order.\6\
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\6\ See Final Results of Voluntary Redetermination Pursuant To
Court Order, dated November 26, 2014. (``Voluntary Remand
Results'').
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On December 1, 2015, the Court issued its opinion on the Ethan
Allen Scope Ruling, remanding each of the Department's determinations
back to the agency for further analysis,\7\ as discussed in further
detail in the Final Remand Results.\8\ Specifically, the Court held
that with respect to the Vivica chest, ``because the (k)(1) factors are
dispositive as to the Vivica chest and demonstrate that the Vivica
chest is not within the scope of the WBF Order, the court does not
proceed to an analysis of the (k)(2) factors and remands to Commerce to
issue a ruling consistent with this opinion.'' \9\ The Court further
held that with respect to the Marlene, Nadine, and Serpentine chests
``because the (k)(1) factors are non-dispositive {in the Ethan Allen
Scope Ruling the Department determined that the Marlene, Nadine, and
Serpentine chests were covered by the WBF Order after analyzing the
criteria listed in 19 CFR 351.225(k)(1){time} , Commerce should
evaluate the (k)(2) factors consistent with this decision,'' in which
the Court noted, in part, that ``the proper inquiry should focus on the
intended function of the product, i.e., whether it was intended and
designed for use in the bedroom.'' \10\
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\7\ See Ethan Allen.
\8\ See Final Remand Results at 1-2.
\9\ See Ethan Allen at 16.
\10\ Id. at 13.
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Accordingly, the Department issued the Final Remand Results and,
consistent with the Court's analysis, determined that the Vivica chest
is not subject to the WBF Order. Furthermore, in accordance with the
Court's holding that the Marlene, Nadine, and Serpentine chests should
be evaluated using a (k)(2) analysis, Commerce conducted such an
analysis and determined that ``the weight of the record evidence
supports a determination that the Nadine, Marlene, and Serpentine
chests are not covered by the scope of the WBF Order.'' \11\
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\11\ See Final Remand Results at 14.
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In Ethan Allen II, the Court sustained the Department's Final
Remand Results in its entirety.\12\
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\12\ See Ethan Allen II.
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Timken Notice
In its decision in Timken \13\ as clarified by Diamond Sawblades,
the CAFC held that, pursuant to sections 516A(c) and (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 February 29, 2016, judgment in
Ethan Allen II, sustaining the Department's decision in the Final
Remand Results that the four chests at issue are not covered by the
scope of the WBF Order, constitutes a final decision of that court that
is not in harmony with the Ethan Allen Scope Ruling. This notice is
published in fulfillment of the publication requirements of Timken.
Accordingly, the Department will continue the suspension of liquidation
of the chests at issue pending expiration of the period to appeal or,
if appealed,
[[Page 14087]]
pending a final and conclusive court decision.
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\13\ See Timken, 893 F.2d at 341.
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Amended Final Determination
Because there is now a final court decision with respect to the
Ethan Allen Scope Ruling, the Department is amending its final scope
ruling. The Department finds that the scope of the WBF Order does not
cover the products addressed in the Ethan Allen Scope Ruling. The
Department will instruct U.S. Customs and Border Protection (``CBP'')
that the cash deposit rate will be zero percent for the four chests
imported by Ethan Allen. In the event that the CIT's ruling is not
appealed, or if appealed, upheld by the CAFC, the Department will
instruct CBP to liquidate entries of Ethan Allen's four chests at issue
without regard to antidumping and/or countervailing 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 9, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2016-05942 Filed 3-15-16; 8:45 am]
BILLING CODE 3510-DS-P