Corrected Notice of Court Decision Not in Harmony with Final Determinations, etc.:

Federal Register Volume 76, Number 166 (Friday, August 26, 2011)

Notices

Pages 53409-53412

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-21950

DEPARTMENT OF COMMERCE

International Trade Administration

A-570-890

Wooden Bedroom Furniture From the People's Republic of China:

Corrected Notice of Court Decision Not in Harmony With the Final

Determination of Sales at Less Than Fair Value and Notice of Amended

Final Determination of Sales at Less Than Fair Value and Antidumping

Duty Order Pursuant to Court Decision

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

SUMMARY: On August 3, 2011, the United States Court of International

Trade (``CIT'' or the ``Court'') sustained the Department's remand redetermination \1\ pursuant to Court remands \2\ of the Final

Determination \3\ of the less than fair value investigation of wooden bedroom furniture (``WBF'') from the People's Republic of China

(``PRC'').\4\

\1\ See Final Results of Redetermination Pursuant to Remand,

Consol. Court No. 05-00003, Slip Op. 11-14 (CIT, February 9, 2011)

(April 27, 2011) (``Dorbest V Remand Redetermination'').

\2\ See Dorbest Limited v. United States, Slip Op. 11-14,

Consol. Court No. 05-00003 (Feb. 9, 2011) (``Dorbest V''); and

Dorbest Ltd. v. United States, 604 F.3d 1363, 1372-73 (Fed. Cir. 2010) (``Dorbest IV Ruling'') remanded to the Department in Dorbest

Limited v. United States, Consol. Court No. 05-00003, Slip Op. 10-79

(July 21, 2010) (``Dorbest IV Remand'') (collectively, ``Dorbest

IV'').

\3\ Final Determination of Sales at Less Than Fair Value: Wooden

Bedroom Furniture From the People's Republic of China, 69 FR 67313

(November 17, 2004), and accompanying Issues and Decision Memorandum

(``IDM''), as amended by 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) (``Amended Final Determination'' and ``Order'')

(collectively ``Final Determination'').

\4\ See Dorbest Limited v. United States, Slip Op. 11-95,

Consol. Court No. 05-00003 (Aug. 3, 2011) (``Dorbest VI'').

Consistent with the decision of the Court of Appeals for the

Federal Circuit (``CAFC'' or ``Federal Circuit'') 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

Page 53410

judgment in this case is not in harmony with the Department's Final

Determination and is amending its Final Determination and Order.

The version of this notice released on Tuesday, August 16, 2011, contained three inadvertent errors. In the notice released on Tuesday,

August 16, 2011, the Department stated that, subsequent to the Final

Determination, new cash deposit rates had been established for Dorbest, and indicated that Dorbest's cash deposit rate would not be revised.

This statement was incorrect, as the cash deposit rate established for

Dorbest in the Final Determination has not been revised in subsequent proceedings. Furthermore, the August 16, 2011, notice identified each company for which the cash deposit rates from the Final Determination continued to be in effect (i.e., any company that obtained a separate rate in the initial investigation which has not been revised or revoked in any subsequent proceeding). However, the Department inadvertently did not remove from this list the companies whose rates had been altered as a result of the recently published final results of administrative review of the Order.\5\ Finally, on October 26, 2007, the Department issued the final results of a changed circumstances review wherein it determined that Tradewinds Furniture Ltd., is the successor-in-interest to Nanhai Jiantai Woodwork Co., Ltd.\6\ However, the Department inadvertently did not acknowledge this successor-in- interest determination in the list of separate-rate qualifying companies contained in the August 16, 2011, notice. This notice corrects these errors, but makes no other changes to the notice released on August 16, 2011. Because these errors were discovered prior to publication in the Federal Register, this amendment is being published in place of the original version released on August 16, 2011.

\5\ See Wooden Bedroom Furniture from the People's Republic of

China: Final Results and Final Rescission in Part, 76 FR 49729

(August 11, 2011). The companies that were incorrectly included in the August 16, 2011, notice, and have been removed from this notice are as follows: Dalian Huafeng Furniture Co., Ltd.; Dongguan

Cambridge Furniture Co., or Glory Oceanic Co., Ltd.; Cheng Meng

Furniture (PTE) Ltd., or China Cheng Meng Decoration & Furniture

(Suzhou) Co., Ltd.; Dongguan Great Reputation Furniture Co., Ltd.;

Dongguan Hero Way Woodwork Co., Ltd., or Dongguan Da Zhong Woodwork

Co., Ltd., or Hero Way Enterprises Ltd., or Well Earth International

Ltd.; Dongguan Kin Feng Furniture Co., Ltd.; Dongguan Liaobushangdun

Huada Furniture Factory, or Great Rich (HK) Enterprise Co. Ltd.;

Dongguan Singways Furniture Co., Ltd.; Eurosa (Kunshan) Co., Ltd., or Eurosa Furniture Co., (PTE) Ltd.; Garri Furniture (Dong Guan)

Co., Ltd., or Molabile International, Inc., or Weei Geo Enterprise

Co., Ltd.; Dongguan Grand Style Furniture, or Hong Kong Da Zhi

Furniture Co., Ltd.; Hualing Furniture (China) Co., Ltd., or Tony

House Manufacture (China) Co., Ltd., or Buysell Investments Ltd., or

Tony House Industries Co., Ltd.; Jardine Enterprise, Ltd.; Nanhai

Baiyi Woodwork Co., Ltd.; Season Furniture Manufacturing Co., or

Season Industrial Development Co.; Shenyang Shining Dongxing

Furniture Co., Ltd. ; Wanhengtong Nueevder (Furniture) Manufacture

Co., Ltd., or Dongguan Wanengtong Industry Co., Ltd.; Zhong Shan

Fullwin Furniture Co., Ltd.; Zhanjiang Sunwin Arts & Crafts Co.,

Ltd.; Dongguan Creation Furniture Co., Ltd., or Creation Industries

Co., Ltd.; Jiangsu Weifu Group Fullhouse Furniture Manufacturing

Corp.; Link Silver Ltd. (V.I.B.), or Forward Win Enterprises Co.

Ltd., or Dongguan Haoshun Furniture Ltd.; Nantong Yushi Furniture

Co., Ltd.; Shenzhen Xiande Furniture Factory; Tarzan Furniture

Industries Ltd., or Samso Industries Ltd.; and Tianjin Master Home

Furniture.

\6\ See Wooden Bedroom Furniture From the People's Republic of

China: Final Results of Antidumping Duty Changed Circumstances

Review, 72 FR 60812 (October 20, 2007).

DATES: Effective Date: August 13, 2011.

FOR FURTHER INFORMATION CONTACT: Brendan Quinn, 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 (202) 482-5848.

SUPPLEMENTARY INFORMATION:

Background

On January 5, 2005, the Department published its Final

Determination. On August 1, 2005, the Department issued its voluntary remand redetermination wherein it modified the surrogate used to value labor.\7\ On October 31, 2006, the court remanded the Department's

Final Determination for further administrative proceedings.\8\ On May 25, 2007, the Department issued its final results of redetermination pursuant to Dorbest I.\9\ In the Dorbest I Remand Redetermination, the

Department, pursuant to the Court's opinion and order, modified certain aspects of the Final Determination as follows: (1) Revised the labor rate for Dorbest; (2) recalculated Dorbest's resin surrogate value; (3) recalculated the mirror surrogate value; (4) revised the selection of surrogate company financial statements, by excluding Evergreen

International Ltd. (``Evergreen'') and Jayaraja Furniture

(``Jayayraja'') from the surrogate financial ratio calculations; (5) eliminated the spare parts discount adjustment to Dorbest's U.S. price;

(6) removed non-scope metal parts form Dorbest's normal value calculation; (7) treated certain of Dorbest's incoming raw materials as direct material costs rather than as a deduction from U.S. prices; and

(8) recalculated the separate rate, as appropriate based on the remanded components of the margin calculation challenged by the litigants.

\7\ Wooden Bedroom Furniture From the PRC: Final Results of

Redetermination Pursuant to the Court Remand Orders, Court No. 05- 00003 (August 1, 2005) (``Labor Remand Redetermination'').

\8\ Dorbest Ltd. v. United States, 462 F. Supp. 2d 1262 (CIT 2006) (``Dorbest I'').

\9\ See Final Results of Redetermination Pursuant to Court

Remand, Court No. 05-00003 (May 25, 2007) (``Dorbest I Remand

Redetermination'').

On February 27, 2008, the Court remanded the Department's Final

Determination for further administrative proceedings.\10\ The Court also granted the Department's request for a voluntary remand on the valuation of Dorbest's cardboard.\11\ On July 15, 2008, the Department issued its final results of redetermination pursuant to Dorbest II.\12\

In the Dorbest II Remand Redetermination, the Department made the following modifications to its Final Determination: (1) Recalculated

Dorbest's cardboard surrogate value; (2) revised the selection of surrogate company financial statements by excluding Fusion Design

Private Ltd. (``Fusion Design''), DnD's Fine Furniture Pvt., Ltd.

(``DnD''), Nizamuddin Furniture Private Ltd. (``Nizamuddin''), and

Swaran Furniture Ltd. (``Swaran'') from the surrogate ratio calculations; and (3) recalculated the separate rate pursuant to the

Court's instructions. On January 7, 2009, the Court sustained the

Department's Dorbest II Remand Redetermination.\13\

\10\ See Dorbest Ltd. v. United States, 547 F. Supp. 2d 1321

(CIT 2008) (``Dorbest II'').

\11\ See id.

\12\ See Final Results of Redetermination Pursuant to Court

Remand, Court No. 05-00003, July 15, 2008 (``Dorbest II Remand

Redetermination'').

\13\ See Dorbest Ltd. v. United States, 602 F. Supp. 2d 1287

(CIT 2009) (``Dorbest III''); See also Wooden Bedroom Furniture From the People's Republic of China: Notice of Court Decision Not in

Harmony, 74 FR 5818 (February 2, 2009).

Dorbest and Petitioners each appealed certain aspects of the CIT's final decision in Dorbest III to the Federal Circuit. As a result of this appeal, two issues were remanded to the Department for further administrative proceedings: (1) calculation of the labor wage rate for

Dorbest; and (2) the Department's exclusion of four surrogate company financial statements (Fusion Design, DnD, Nizamuddin and Swaran) to derive the financial ratios pursuant to the lower Court's order in

Dorbest II.\14\

\14\ See Dorbest IV, 604 F.3d at 1363.

The Federal Circuit held that the Department's methodology for valuing labor, and its regulation (19 CFR 351.408) were inconsistent with the statute because the methodology required the use of data from countries that were not economically comparable to the non market economy, and countries that were not significant producers of subject merchandise. The Federal Circuit invalidated the

Page 53411

regulation, and remanded with instructions to recalculate Dorbest's labor value in compliance with Section 773(c)(4) of the Tariff Act of 1930, as amended (``the Act'').\15\

\15\ See Dorbest IV Order, 604 F.3d at 1372-73.

On November 10, 2010, the Department issued its final remand redetermination pursuant to Dorbest IV.\16\ In Dorbest IV Remand

Redetermination, the Department recalculated its labor wage rate using data only from countries that met the statutory criteria.\17\ The

Department also recalculated the surrogate financial ratios applied to

Dorbest, and re-included the financial statements from the four companies it had previously excluded in Remand Redetermination II.\18\

\16\ See Final Results of Redetermination Pursuant to Remand,

Consol. Court No. 05-00003, Slip Op. 10-79 (CIT, July 21, 2010)

(November 10, 2010) (``Dorbest IV Remand Redetermination'').

\17\ See Dorbest IV Remand Redetermination, at 8.

\18\ See Dorbest IV Remand Redetermination at 4.

On February 9, 2011, the CIT remanded the Department's revised labor wage rate calculation, holding that the selection of economically comparable countries appeared arbitrarily biased toward the low end of the per capita gross national income (``GNI'') spectrum, and did not explain why higher income countries were excluded from the starting selection of economically comparable countries.\19\ In Dorbest V, the

Court sustained the Department's other data choices.\20\

\19\ See Dorbest V at 14-17.

\20\ See Dorbest V at 28.

On April 27, 2011, Commerce issued its remand redetermination pursuant to Dorbest V.\21\ In Dorbest V Redetermination, the Department expanded the basket of economically comparable countries to also include countries with per capita GNIs above that of China, and revised

Dorbest's labor value using data from this expanded basket of countries as its new starting point. On August 3, 2011, the Court sustained

Dorbest V Remand Redetermination in Dorbest VI.

\21\ See Dorbest V Remand Redetermination.

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

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 August 03, 2011, judgment sustaining the Department's revised surrogate wage rate methodology for the valuation of Dorbest's labor inputs used in the production of wooden bedroom furniture 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. 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.

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 Dorbest

Ltd. v. United States litigation. We have revised the surrogate labor wage rate applicable to Dorbest to 0.44 USD per hour. As a result of this recalculated wage rate, the revised dumping margin for Dorbest for the Final Determination is 2.40 percent. Consistent with the

Department's practice to include above de minimis margins in the calculation of the separate rate margin \22\ the revised amended weighted-average dumping margin for respondents with separate-rate status is now 6.68 percent. The dumping margin determined for the PRC- wide entity remains unchanged.

\22\ See, e.g., Preliminary Determination of Sales at Less Than

Fair Value and Partial Affirmative Determination of Critical

Circumstances: Certain Polyester Staple Fiber from the People's

Republic of China, 71 FR 77373, 77377 (December 26, 2006), unchanged in Final Determination of Sales at Less Than Fair Value and Partial

Affirmative Determination of Critical Circumstances: Certain

Polyester Staple Fiber from the People's Republic of China, 72 FR 19690 (April 19, 2007).

The Department will issue instructions to U.S. Customs and Border

Protection (``CBP'') to revise the cash deposit rates for companies where the cash deposit rates from the Final Determination continue to be in effect.\23\ Accordingly, the Department will instruct CBP to begin collecting cash deposits for Dorbest at the revised rate of 2.40 percent. The Department will further instruct CBP to begin collecting cash deposits at the revised rate of 6.68 percent for the companies listed below: \24\

\23\ Since the Final Determination, new cash deposit rates have been established for several companies that qualified for separate- rate status during the investigation. The Department will not issue revised cash deposit instructions for these companies.

\24\ The companies listed herein include those which received a separate rate in the initial Final Determination but have not since received another separate rate (e.g., as a respondent in the context of an administrative review) nor lost their separate rate during a subsequent administrative review.

Alexandre International Corp., or Southern Art Development

Ltd., or Alexandre Furniture (Shenzhen) Co., Ltd., or Southern Art

Furniture Factory

Art Heritage International, Ltd., or Super Art Furniture

Co., Ltd., or Artwork Metal & Plastic Co., Ltd., or Jibson Industries

Ltd., or Always Loyal International

Billy Wood Industrial (Dong Guan) Co., Ltd., or Great

Union Industrial (Dongguan) Co., Ltd., or Time Faith Ltd.

Changshu HTC Import & Export Co., Ltd.

Chuan Fa Furniture Factory

Clearwise Co., Ltd.

Dongguan Hung Sheng Artware Products Co., Ltd., or Coronal

Enterprise Co., Ltd.

Dongguan Kingstone Furniture Co., Ltd., or Kingstone

Furniture Co., Ltd.

Dongying Huanghekou Furniture Industry Co., Ltd.

Fortune Glory Industrial Ltd. (H.K. Ltd.) or Tradewinds

Furniture Ltd., (Successor-in-interest to Nanhai Jiantai Woodwork Co.,

Ltd.)

Guangzhou Maria Yee Furnishings Ltd., Pyla HK, Ltd., and

Maria Yee, Inc.

Hainan Jong Bao Lumber Co., Ltd., or Jibbon Enterprise

Co., Ltd.

Hang Hai Woodcraft's Art Factory

Jiangmen Kinwai Furniture Decoration Co., Ltd.

Jiangmen Kinwai International Furniture Co., Ltd.

Jiangsu Yuexing Furniture Group Co., Ltd.

Jiedong Lehouse Furniture Co., Ltd.

Kuan Lin Furniture (Dong Guan) Co., Ltd., or Kuan Lin

Furniture Factory, or Kuan Lin Furniture Co., Ltd.

Kunshan Lee Wood Product Co., Ltd.

Kunshan Summit Furniture Co., Ltd.

Leefu Wood (Dongguan) Co., Ltd., or King Rich

International, Ltd.

Locke Furniture Factory, or Kai Chan Furniture Co., Ltd., or Kai Chan (Hong Kong) Enterprise Ltd., or Taiwan Kai Chan Co., Ltd.

Nantong Dongfang Orient Furniture Co., Ltd.

Nathan International Ltd., or Nathan Rattan Factory

Passwell Corporation, or Pleasant Wave Ltd.

Perfect Line Furniture Co., Ltd.

Prime Wood International Co., Ltd., or Prime Best

International Co., Ltd., or Prime Best Factory, or Liang Huang

(Jiaxing) Enterprise Co., Ltd.

PuTian JingGong Furniture Co., Ltd.

Qingdao Liangmu Co., Ltd.

Restonic (Dongguan) Furniture Ltd., or Restonic Far East

(Samoa) Ltd.

RiZhao SanMu Woodworking Co., Ltd.

Page 53412

Sen Yeong International Co., Ltd., or Sheh Hau

International Trading Ltd.

Shanghai Jian Pu Export & Import Co., Ltd.

Shanghai Maoji Imp and Exp Co., Ltd.

Sheng Jing Wood Products (Beijing) Co., Ltd., or Telstar

Enterprises Ltd.

Shenzhen Forest Furniture Co., Ltd.

Shenzhen Jiafa High Grade Furniture Co., Ltd., or Golden

Lion International Trading Ltd.

Shenzhen New Fudu Furniture Co., Ltd.

Shenzhen Wonderful Furniture Co., Ltd.

Songgang Jasonwood Furniture Factory, or Jasonwood

Industrial Co., Ltd. S.A.

Starwood Industries Ltd.

Strongson Furniture (Shenzhen) Co., Ltd., or Strongson

Furniture Co., Ltd., or Strongson (HK) Co.

Sunforce Furniture (Hui-Yang) Co., Ltd., or Sun Fung

Wooden Factory, or Sun Fung Co., or Shin Feng Furniture Co., Ltd., or

Stupendous International Co., Ltd.

Superwood Co., Ltd., or Lianjiang Zongyu Art Products Co.,

Ltd.

Techniwood Industries Ltd., or Ningbo Furniture Industries

Limited, or Ningbo Hengrun Furniture Co., Ltd.

Tianjin Phu Shing Woodwork Enterprise Co., Ltd.

Tube-Smith Enterprise (ZhangZhou) Co., Ltd., or Tube-Smith

Enterprise (Haimen) Co., Ltd., or Billonworth Enterprises Ltd.

U-Rich Furniture (Zhangzhou) Co., Ltd., or U-Rich

Furniture Ltd.

Woodworth Wooden Industries (Dong Guan) Co., Ltd.

Xiamen Yongquan Sci-Tech Development Co., Ltd.

Jiangsu XiangSheng Bedtime Furniture Co., Ltd.

Yeh Brothers World Trade, Inc.

Zhang Zhou Sanlong Wood Product Co., Ltd.

Zhangjiagang Daye Hotel Furniture Co., Ltd.

Zhangjiagang Zheng Yan Decoration Co., Ltd.

Zhangzhou Guohui Industrial & Trade Co., Ltd.

Zhongshan Fookyik Furniture Co., Ltd.

Zhongshan Golden King Furniture Industrial Co., Ltd.

Zhoushan For-Strong Wood Co., Ltd.

In accordance with section 735(c)(1)(B) of the Act, the Department will instruct CBP to collect cash deposits at the rates indicated above.

This notice is issued and published in accordance with sections 516A(c)(1), 735(d), and 777(i)(1) of the Act.

Dated: August 19, 2011.

Christian Marsh,

Acting Deputy Assistant Secretary for Import Administration.

FR Doc. 2011-21950 Filed 8-25-11; 8:45 am

BILLING CODE 3510-DS-P