Court Decisions Not in Harmony with Final Results of Administrative Reviews:

Federal Register: September 27, 2010 (Volume 75, Number 186)

Notices

Page 59208-59209

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr27se10-58

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 Results of

Administrative Review

AGENCY: Import Administration, International Trade Administration,

Department of Commerce

DATES: Effective Date: September 27, 2010.

SUMMARY: On September 17, 2010, the United States Court of

International Trade (``Court'' or ``CIT'') sustained the U.S.

Department of Commerce's (``Department'') final results of redetermination pursuant to the Court's remand.\1\ 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''), the Department is notifying the public that the final judgment in this case is not in harmony with the Department's final results of the administrative review (``AR'') of the antidumping duty order on wooden bedroom furniture (``WBF'') from the People's

Republic of China (``PRC'') covering the period of review (``POR'') of

January 1, 2007, through December 31, 2007.\2\

\1\ See Dongguan Bon Ten Furniture Co., Ltd. v. United States,

Court No. 09-00396: Final Results of Redetermination Pursuant To

Remand, dated August 9, 2010 (``Bon Ten v. United States'').

\2\ See Wooden Bedroom Furniture from the People's Republic of

China: Final Results of Antidumping Duty Administrative Review and

New Shipper Reviews, 74 FR 41374 (August 17, 2009) (``Final

Results''), and accompanying Issues and Decision Memorandum, as amended by Wooden Bedroom Furniture From the People's Republic of

China: Amended Final Results of Antidumping Duty Administrative

Review and New Shipper Reviews, 74 FR 55810 (October 29, 2009)

(``Amended Final Results'').

FOR FURTHER INFORMATION CONTACT: Frances Veith, Antidumping and

Countervailing Duty Operations, Office 8, Import Administration,

International Trade Administration, U.S. Department of Commerce, 14th

Street, and Constitution Avenue, NW., Washington, DC 20230; telephone:

(202) 482-4295.

SUPPLEMENTARY INFORMATION: On August 17, 2009, the Department published its Final Results. In response to Bon Ten's arguments in its administrative case brief, the Department determined not to rescind the

AR with respect to Bon Ten because Bon Ten had not demonstrated that it had no shipments during the 2007 AR POR outside of the single shipment reviewed during a new shipper review (``NSR'') \3\ that overlapped, in part, with the 2007 AR POR.\4\ Additionally, because Bon Ten had not demonstrated its eligibility for a separate rate in the 2007 AR, the

Department maintained its determination to treat Bon Ten as part of the

PRC-wide entity.\5\

\3\ See Wooden Bedroom Furniture from the People's Republic of

China: Final Results of Fourth New Shipper Reviews, 73 FR 64916

(October 31, 2008) (``NSR Final Results'').

\4\ See Final Results at Comment 29.

\5\ See id.

On August 14, 2009, Bon Ten submitted comments alleging that the

Department made a ministerial error with respect to the Final Results.

Bon Ten's ministerial error allegation focused on the Department's finding in the Final Results that Bon Ten had not provided any assertion prior to the submission of its case brief that it had no shipments during the 2007 AR POR outside of the shipment reviewed in the context of the NSR. Bon Ten argued that the Department did not consider its February 5, 2009, submission concerning its shipments during the 2007 AR POR in that finding.

In the Amended Final Results, the Department determined that, although it had inadvertently overlooked Bon Ten's February 5, 2009, submission for purposes of the Final Results, Bon Ten's allegation did not reflect a ministerial error. The Department reasoned that Bon Ten's allegation required reconsideration of a methodological issue, namely whether the review should be rescinded with respect to Bon Ten based upon its February 5, 2009, submission. Accordingly, the Department continued to treat Bon Ten as part of the PRC-wide entity for the AR in the Amended Final Results. However, the Department clarified that Bon

Ten lost the separate rate status it was granted during the NSR starting on August 1, 2007, which is the first day of the administrative review that did not overlap with Bon Ten's NSR POR

(i.e., January 1, 2007, through July 31, 2007).\6\

\6\ See Amended Final Results and the Department's memorandum entitled, ``Ministerial Error Memorandum for the Final Results of the 2007 Administrative and New Shipper Reviews of Wooden Bedroom

Furniture from the People's Republic of China,'' dated October 7, 2009, at Issue 4.

On October 16, 2009, Bon Ten filed a complaint with the Court challenging the Department's determination not to rescind the AR with respect to Bon Ten

Page 59209

and its determination that it could not address its failure to consider the February 5, 2009, submission as a ministerial error. On June 7, 2010, the Department filed an unopposed motion for voluntary remand with the Court so that the Department could fully consider and evaluate the overlooked record evidence, prepare draft remand results, issue a draft to the parties for comment, analyze those comments, and take such action as may be appropriate pertaining to Bon Ten. On June 8, 2010, the Court granted the Department's voluntary remand motion.

On June 11, 2010, we issued a supplemental questionnaire to Bon

Ten, in which we provided Bon Ten the opportunity to submit a no- shipment certification. On June 15, 2010, Bon Ten submitted a certification that it had no shipments of WBF during the period August 1, 2007, through December 31, 2007, the portion of the 2007 AR POR that was not covered by the preceding NSR POR. On July 16, 2010, we released to all interested parties for comment: (1) Our draft redetermination pursuant to the remand finding that Bon Ten had properly submitted its no-shipment certification and stating our intent to rescind the AR with respect to Bon Ten; (2) a U.S. Customs and Border Protection (``CBP'') data listing of all type 3 entries (i.e., entries subject to antidumping and countervailing duty tariffs) classified under subheadings 7009.92.5000, 9403.50.9080, and 9403.50.9040 of the

Harmonized Tariff Schedule of the United States that entered the United

States during the 2007 AR POR and were exported/manufactured by Bon

Ten; and (3) a draft version of Bon Ten's amended final cash deposit instructions reflecting the draft redetermination results, which the

Department intends to send to CBP, pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision.\7\ We received no comments from interested parties on the

Department's draft redetermination results, CBP data, or the draft version of the cash deposit instructions for Bon Ten.

\7\ See the Department's memorandum entitled, ``2007

Administrative Review of the Antidumping Duty Order on Wooden

Bedroom Furniture from the People's Republic of China: Due Date for

Interested Parties to Submit Comments on Draft Results of

Redetermination Pursuant to Remand,'' dated July 16, 2010.

On August 9, 2010, the Department issued its final results of redetermination pursuant to Bon Ten v. United States. The remand redetermination explained that, in accordance with the CIT's instructions, we have reconsidered the record information with regard to Bon Ten's no-shipment certification and separate-rate status for the 2007 AR. Based on this reconsideration, we have determined to rescind the 2007 AR with respect to Bon Ten pursuant to 19 CFR 351.214(j) and 19 CFR 351.213(d)(3).

Timken Notice

In its decision in Timken, the CAFC 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.\8\ The CIT's decision in Bon Ten v. United States, issued on September 17, 2010, constitutes a final decision of that Court that is not in harmony with the Department's Final Results and Amended Final Results. This notice is published in fulfillment of the publication requirements of Timken.

Accordingly, pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision, the Department will instruct CBP to collect a cash-deposit rate for Bon Ten, effective

October 31, 2008, based on the rate established in the final results of

Bon Ten's NSR (i.e., 0.00 percent) until completion of any subsequent administrative review of Bon Ten.\9\

\8\ See Timken, 893 F.2d at 341.

\9\ See NSR Final Results.

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

Dated: September 23, 2010.

Paul Piquado,

Acting Deputy Assistant Secretary for Import Administration.

FR Doc. 2010-24321 Filed 9-24-10; 8:45 am

BILLING CODE 3510-DS-P