Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order Pursuant to Court Decision: Certain Automotive Replacement Glass Windshields from the People's Republic of China, 62813-62814 [E7-21876]

Download as PDF Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Notices of China, 67 FR 16087 (April 4, 2002) (‘‘Order’’). The final judgment in this case was not in harmony with the Department’s Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields From the People’s Republic of China, 67 FR 6482 (February 12, 2002) (‘‘Final Determination’’), and accompanying Issues and Decisions Memorandum (‘‘Decision Memo’’), as amended at 67 FR 11670 (March 15, 2002), covering the period of investigation (‘‘POI’’), July 1, 2000 through December 31, 2000. EFFECTIVE DATE: November 7, 2007. FOR FURTHER INFORMATION CONTACT: Paul Stolz, 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) 482–4474. SUPPLEMENTARY INFORMATION: Background In separate actions, plaintiffs, Fuyao Glass Industry Group Co., Ltd. (‘‘Fuyao’’), Xinyi Automotive Glass Co., Ltd. (‘‘Xinyi’’), Changchun Pilkington Safety Glass, Co., Ltd, Guilin Pilkington Safety Glass Co., Ltd., and Wuhan Yaohua Pilkington Safety Glass Co., Ltd. (collectively ‘‘Pilkington’’), and Benxun Automotive Glass Co., Ltd. (‘‘Benxun’’) 1 contested several aspects of the Final Determination, including the Department’s decision to disregard certain market economy inputs.2 On February 15, 2006, while the cases were consolidated, the Court remanded the Department’s decision regarding certain market economy inputs to the Department. See Fuyao Glass Industry Group Co., Ltd. v. United States, Consol. Court No. 02–00282, 2006 Ct. Int’l Trade Lexis 21, Slip Op. 2006–21 (CIT February 15, 2006) (‘‘Fuyao Glass III’’). In its remand to the Department, the Court concluded with respect to the standard applied in the Department’s analysis that the Department must conduct its analysis ‘‘in accordance with the court’s finding with respect to the use of the word ‘are’ rather than ‘may be’ when applying its subsidized price methodology.’’ Fuyao Glass III, Slip Op. P. 9. The Court further directed the Department to either (1) ‘‘concur with the court’s conclusions with pwalker on PROD1PC71 with NOTICES 1 On July 20, 2004, the Department determined that Shenzhen CSG Autoglass Co., Ltd. (‘‘CSG’’) is the successor-in-interest to Benxun. The amended final results of this segment of the proceeding will apply to entries made by CSG on or subsequent to July 20, 2004. 2 Court Nos. 02–00282, 02–00312, 02–00320 and 02–00321. On August 2, 2002, the Court consolidated these actions into Court No. 02–00282. VerDate Aug<31>2005 16:14 Nov 06, 2007 Jkt 214001 respect to substantial evidence, or (2) re–open the record . . .’’ Fuyao Glass III, Slip Op. P. 7. The Court concluded that it does not find the Department’s determination, i.e., that prices from South Korea and Indonesia are subsidized, is supported by substantial record evidence. See Fuyao Glass III, Slip Op. p. 16. Pursuant to the Court’s ruling, and under respectful protest, the Department concurred that the record evidence does not contain substantial evidence to support a conclusion that prices from South Korea and Indonesia are subsidized. See Viraj Group v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). Because the Court found that the evidence on the record does not support the Department’s determination to disregard prices from South Korea and Indonesia, in the remand results, the Department determined to calculate the dumping margin for Fuyao and Xinyi, mandatory respondents, based upon prices the plaintiffs actually paid to suppliers located in South Korea and Indonesia. As a result of its remand determination, the Department calculated zero margins for both Fuyao and Xinyi. In Fuyao Glass Industry Group Co. v. United States, Consol. Court No. 02– 00282, (Orders of November 2, 2006 and December 19, 2006) (‘‘Fuyao Glass IV’’), the Court then granted the Department’s request for a voluntary remand and instructed the Department to devise a reasonable methodology to calculate an antidumping margin for Pilkington and Benxun, taking into consideration the zero margins assigned to Fuyao and Xinyi. On January 8, 2007, the Court severed Fuyao’s and Xinyi’s actions, Court Nos. 02–00282 and 02–00321, from the consolidated action, and designated Pilkington’s action, Court No. 02–00312, as the lead case, under which Court Nos. 02–00319 and 02– 00320 were consolidated. On May 10, 2007, and June 28, 2007, respectively, the Court issued final judgments in Court Nos. 02–00282 and 02–00321, wherein it affirmed the Department’s third remand results with respect to Fuyao’s and Xinyi’s actions. The Department then completed its voluntary remand in which it devised a reasonable methodology to calculate an antidumping margin for Pilkington and Benxun, taking into consideration the zero margins assigned to Fuyao and Xinyi. Specifically, on remand, the Department identified the control numbers (‘‘CONNUMS’’) shared by the Pilkington Plaintiffs, Benxun, Fuyao and Xinyi, as reported in their questionnaire responses, and ‘‘impute{d} Fuyao’s and Xinyi’s PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 62813 CONNUM–specific margins to the matching CONNUMs of the {the Pilkington Plaintiffs} and Benxun.’’ Commerce then weight–averaged those CONNUM–specific margins, which resulted in the de minimis antidumping margin of 1.47 percent for the Pilkington Plaintiffs and Benxun. On August 3, 2007, the Court issued a final judgement, wherein it affirmed the Department’s fourth remand results with respect to Pilkington and Benxun. Timken Notice In its decision in Timken Co., v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (‘‘Timken’’), the United States Court of Appeals for the Federal Circuit 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. The Court’s decision in Pilkington on August 3, 2007, 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 issue an amended final determination and revised instructions to U.S. Customs and Border Protection if the Court’s decision is not appealed or if it is affirmed on appeal. This notice is issued and published in accordance with section 516A(c)(1) of the Act. Dated: October 31, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E7–21875 Filed 11–6–07; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration [A–570–867] Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order Pursuant to Court Decision: Certain Automotive Replacement Glass Windshields from the People’s Republic of China Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: November 7, 2007. SUMMARY: On June 28, 2007, the United States Court of International Trade (‘‘Court’’) entered a final judgement in Xinyi Automotive Glass v. United AGENCY: E:\FR\FM\07NON1.SGM 07NON1 62814 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Notices States, Ct. No. 02–00321, Judgment (CIT, June 28, 2007) (‘‘Xinyi v. United States’’) sustaining the third remand results made by the Department of Commerce (‘‘the Department’’) pursuant to the Court’s remand of the final determination with respect to Certain Automotive Replacement Glass Windshields from the People’ Republic of China (‘‘PRC’’) in Slip Op. 06–21 (CIT, February 15, 2006). This case arises out of the Department’s Antidumping Duty Order on Certain Automotive Replacement Glass Windshields from the People’s Republic of China, 67 FR 16087 (April 4, 2002) (‘‘AD Order’’). As there is now a final and conclusive court decision in this case, the Department is amending the final determination and antidumping duty order of this investigation. Paul Stolz or Robert Bolling, 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) 482–4474 and (202) 482–3434, respectively. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Background pwalker on PROD1PC71 with NOTICES This case arises out of the Department’s AD Order and Final Determination of Sales at Less Than Fair Value: Certain Automotive Replacement Glass Windshields From the People’s Republic of China, 67 FR 6482 (February 12, 2002) (‘‘Final Determination’’), and accompanying Issues and Decisions Memorandum (‘‘Decision Memo’’), as amended at 67 FR 11670 (March 15, 2002), covering the period of investigation (‘‘POI’’), July 1, 2000, through December 31, 2000. Following publication of the Final Determination, Fuyao Glass Industry Group Co., Ltd. et al. (‘‘Fuyao’’), Xinyi Automotove Glass (Shenzhen) Co., Ltd. (‘‘Xinyi’’),1 Shenzhen Benxun Automotove Glass Co., Ltd. (Benxun),2 and Changchun Pilkington Safety Glass, Co., Ltd., Guilin Pilkington Safety Glass Co., Ltd., and Wuhan Yao hua Pilkington Safety Glass Co., Ltd. (collectively ‘‘Pilkington’’) filed lawsuits with the Court challenging the 1 Fuyao and Xinyi were mandatory respondents during the POI. 2 The Department determined that Shenzhen CSG Automotive Glass Co., Ltd. is a successor-in-interest to Benxun. See Notice of Final Results of Antidumping Duty Changed Circumstances Review: Automotive Replacement Glass Windshields From the People’s Republic of China, 69 FR 43388 (July 20, 2004). VerDate Aug<31>2005 16:14 Nov 06, 2007 Jkt 214001 Department’s Final Determination.3 Plaintiffs, Fuyao, Xinyi, Benxun, and Pilkington, initially in separate lawsuits, contested several aspects of the Final Determination, including the Department’s decision to disregard certain market economy inputs. On August 2, 2002, all law suits challenging the Final Determination, including Xinyi’s lawsuit, were consolidated into Fuyao Glass Industry Group Co., Ltd. v. United States, Consol. Court No. 02– 00282. On February 15, 2006, while the cases were still consolidated, the Court issued its third remand concerning the Department’s decision concerning certain market economy inputs. See Fuyao Glass Industry Group Co. v. United States, Consol. Court No. 02– 00282, Slip Op. 2006–21, (CIT, February 15, 2006). In its remand to the Department, the Court concluded with respect to the standard applied in the Department’s analysis, that the Department must conduct its analysis ‘‘in accordance with the Court’s finding with respect to the use of the word ’are’ rather than ’may be’ when applying its subsidized price methodology.’’ Id. at 9. The Court further directed the Department to either (1) ‘‘concur with the court’s conclusions with respect to substantial evidence, or (2) re–open the record . . .’’ Id. at 7. The Court concluded that it does not find the Department’s determination, that prices from South Korea and Indonesia are subsidized, is supported by substantial record evidence. Id. at 16. Pursuant to the Court’s ruling, and under respectful protest, the Department concurred that the record evidence does not contain substantial evidence to support a conclusion that prices from South Korea and Indonesia are subsidized. See Viraj Group v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). Because the Court found that the evidence on the record does not support the Department’s determination to disregard prices from South Korea and Indonesia, in the remand results, the Department determined to calculate the dumping margin for Fuyao and Xinyi based upon prices the plaintiffs actually paid to suppliers located in South Korea and Indonesia. On January 8, 2007, Xinyi’s action was severed from the consolidated action. See Court Order of January 8, 2007, in Ct. No. 02–00282. On June 28, 2007, the Court issued a final judgment, wherein it affirmed the Department’s third remand results with respect to Xinyi’s action, Xinyi v. United States. On September 13, 2007, consistent with the decision in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), the Department notified the public that the Court’s decision was not in harmony with the Department’s final determination. See Certain Automotive Replacement Glass Windshields from The People’s Republic of China: Notice of Decision of the Court of International Trade Not in Harmony, 72 FR 52344 (September 13, 2007). No party appealed the Court’s decision. As there is now a final and conclusive court decision in this case, we are amending our Final Determination. Amended Final Determination As the litigation in this case has concluded, the Department is amending the Final Determination to reflect the results of our third remand determination. The revised dumping margin in the amended final determination is as follows: Exporter Xinyi Automotive Glass (Shenzhen) Co., Ltd. ............. Frm 00003 Fmt 4703 Sfmt 4703 0.00 The PRC–wide rate continues to be 124.5 percent as determined in the Department’s Final Determination. The Department intends to issue instructions to U.S. Customs and Border Protection (‘‘CBP’’) fifteen days after publication of this notice, to revise the cash deposit rates for the company listed above, effective as of the publication date of this notice. Because Xinyi obtained a preliminary injunction, we will also instruct CBP to liquidate all entries, without regard to antidumping duties. This notice is published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended. Dated: October 31, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E7–21876 Filed 11–6–07; 8:45 am] BILLING CODE 3510–DS–S 3 Court Nos. 02–00282, 02–00312, 02–00320, and 02–00321. PO 00000 Margin (percent) E:\FR\FM\07NON1.SGM 07NON1

Agencies

[Federal Register Volume 72, Number 215 (Wednesday, November 7, 2007)]
[Notices]
[Pages 62813-62814]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21876]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-867]


Notice of Amended Final Determination of Sales at Less Than Fair 
Value and Antidumping Duty Order Pursuant to Court Decision: Certain 
Automotive Replacement Glass Windshields from the People's Republic of 
China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

EFFECTIVE DATE: November 7, 2007.
SUMMARY: On June 28, 2007, the United States Court of International 
Trade (``Court'') entered a final judgement in Xinyi Automotive Glass 
v. United

[[Page 62814]]

States, Ct. No. 02-00321, Judgment (CIT, June 28, 2007) (``Xinyi v. 
United States'') sustaining the third remand results made by the 
Department of Commerce (``the Department'') pursuant to the Court's 
remand of the final determination with respect to Certain Automotive 
Replacement Glass Windshields from the People' Republic of China 
(``PRC'') in Slip Op. 06-21 (CIT, February 15, 2006). This case arises 
out of the Department's Antidumping Duty Order on Certain Automotive 
Replacement Glass Windshields from the People's Republic of China, 67 
FR 16087 (April 4, 2002) (``AD Order''). As there is now a final and 
conclusive court decision in this case, the Department is amending the 
final determination and antidumping duty order of this investigation.

FOR FURTHER INFORMATION CONTACT: Paul Stolz or Robert Bolling, 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-
4474 and (202) 482-3434, respectively.

SUPPLEMENTARY INFORMATION:

Background

    This case arises out of the Department's AD Order and Final 
Determination of Sales at Less Than Fair Value: Certain Automotive 
Replacement Glass Windshields From the People's Republic of China, 67 
FR 6482 (February 12, 2002) (``Final Determination''), and accompanying 
Issues and Decisions Memorandum (``Decision Memo''), as amended at 67 
FR 11670 (March 15, 2002), covering the period of investigation 
(``POI''), July 1, 2000, through December 31, 2000. Following 
publication of the Final Determination, Fuyao Glass Industry Group Co., 
Ltd. et al. (``Fuyao''), Xinyi Automotove Glass (Shenzhen) Co., Ltd. 
(``Xinyi''),\1\ Shenzhen Benxun Automotove Glass Co., Ltd. (Benxun),\2\ 
and Changchun Pilkington Safety Glass, Co., Ltd., Guilin Pilkington 
Safety Glass Co., Ltd., and Wuhan Yao hua Pilkington Safety Glass Co., 
Ltd. (collectively ``Pilkington'') filed lawsuits with the Court 
challenging the Department's Final Determination.\3\ Plaintiffs, Fuyao, 
Xinyi, Benxun, and Pilkington, initially in separate lawsuits, 
contested several aspects of the Final Determination, including the 
Department's decision to disregard certain market economy inputs. On 
August 2, 2002, all law suits challenging the Final Determination, 
including Xinyi's lawsuit, were consolidated into Fuyao Glass Industry 
Group Co., Ltd. v. United States, Consol. Court No. 02-00282. On 
February 15, 2006, while the cases were still consolidated, the Court 
issued its third remand concerning the Department's decision concerning 
certain market economy inputs. See Fuyao Glass Industry Group Co. v. 
United States, Consol. Court No. 02-00282, Slip Op. 2006-21, (CIT, 
February 15, 2006). In its remand to the Department, the Court 
concluded with respect to the standard applied in the Department's 
analysis, that the Department must conduct its analysis ``in accordance 
with the Court's finding with respect to the use of the word 'are' 
rather than 'may be' when applying its subsidized price methodology.'' 
Id. at 9. The Court further directed the Department to either (1) 
``concur with the court's conclusions with respect to substantial 
evidence, or (2) re-open the record . . .'' Id. at 7. The Court 
concluded that it does not find the Department's determination, that 
prices from South Korea and Indonesia are subsidized, is supported by 
substantial record evidence. Id. at 16. Pursuant to the Court's ruling, 
and under respectful protest, the Department concurred that the record 
evidence does not contain substantial evidence to support a conclusion 
that prices from South Korea and Indonesia are subsidized. See Viraj 
Group v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003). Because 
the Court found that the evidence on the record does not support the 
Department's determination to disregard prices from South Korea and 
Indonesia, in the remand results, the Department determined to 
calculate the dumping margin for Fuyao and Xinyi based upon prices the 
plaintiffs actually paid to suppliers located in South Korea and 
Indonesia.
---------------------------------------------------------------------------

    \1\ Fuyao and Xinyi were mandatory respondents during the POI.
    \2\ The Department determined that Shenzhen CSG Automotive Glass 
Co., Ltd. is a successor-in-interest to Benxun. See Notice of Final 
Results of Antidumping Duty Changed Circumstances Review: Automotive 
Replacement Glass Windshields From the People's Republic of China, 
69 FR 43388 (July 20, 2004).
    \3\ Court Nos. 02-00282, 02-00312, 02-00320, and 02-00321.
---------------------------------------------------------------------------

    On January 8, 2007, Xinyi's action was severed from the 
consolidated action. See Court Order of January 8, 2007, in Ct. No. 02-
00282. On June 28, 2007, the Court issued a final judgment, wherein it 
affirmed the Department's third remand results with respect to Xinyi's 
action, Xinyi v. United States. On September 13, 2007, consistent with 
the decision in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990), the Department notified the public that the Court's decision was 
not in harmony with the Department's final determination. See Certain 
Automotive Replacement Glass Windshields from The People's Republic of 
China: Notice of Decision of the Court of International Trade Not in 
Harmony, 72 FR 52344 (September 13, 2007). No party appealed the 
Court's decision. As there is now a final and conclusive court decision 
in this case, we are amending our Final Determination.

Amended Final Determination

    As the litigation in this case has concluded, the Department is 
amending the Final Determination to reflect the results of our third 
remand determination. The revised dumping margin in the amended final 
determination is as follows:

------------------------------------------------------------------------
                                                                Margin
                          Exporter                            (percent)
------------------------------------------------------------------------
Xinyi Automotive Glass (Shenzhen) Co., Ltd.................         0.00
------------------------------------------------------------------------

The PRC-wide rate continues to be 124.5 percent as determined in the 
Department's Final Determination. The Department intends to issue 
instructions to U.S. Customs and Border Protection (``CBP'') fifteen 
days after publication of this notice, to revise the cash deposit rates 
for the company listed above, effective as of the publication date of 
this notice. Because Xinyi obtained a preliminary injunction, we will 
also instruct CBP to liquidate all entries, without regard to 
antidumping duties.
    This notice is published in accordance with sections 735(d) and 
777(i) of the Tariff Act of 1930, as amended.

    Dated: October 31, 2007.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E7-21876 Filed 11-6-07; 8:45 am]
BILLING CODE 3510-DS-S