[Federal Register Volume 60, Number 4 (Friday, January 6, 1995)]
[Notices]
[Pages 2078-2080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-349]
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DEPARTMENT OF COMMERCE
[A-570-820]
Certain Compact Ductile Iron Waterworks Fittings and Glands From
the People's Republic of China: Notice of Court Decision; Exclusion
From the Application of the Antidumping Duty Order, in Part;
Termination of Administrative Review in Part; and Amended Final
Determination and Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of amendment to final determination of sales at less-
than-fair-value, exclusion from the application of the Antidumping Duty
Order, and termination of administrative review in accordance with
decision upon remand.
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SUMMARY: On November 15, 1994, the United States Court of International
Trade (CIT) affirmed the Department's September 30, 1994, remand
determination which was not contested by defendant-intervenor, The U.S.
Waterworks Fittings Producers Council, et al.; and entered Final
Judgment with prejudice. See China National Metal Products Import and
Export Corporation [[Page 2079]] and Sigma Corporation v. United States
et al., Slip Op. 94-178, Ct. No. 93-09-00655 (CIT September, 1993). The
remand resulted in a finding of a de minimis margin for China National
Metals Import and Export Corporation (CMP) and, consequently, a
negative determination of sales at less than fair value for the
investigation of CMP. Therefore, CMP, as an exporter of subject
merchandise produced by Bin He Foundry and Song Zhuang Foundry, is
excluded from the application of the antidumping duty order on compact
ductile iron waterworks products from the People's Republic of China.
Because CMP is excluded from the application of the antidumping duty
order with respect to its sales of subject merchandise produced by Bin
He Foundry and Song Zhuang Foundry, we are also terminating the on-
going administrative review with respect to CMP as an exporter of
subject merchandise produced by these two foundries. Because no parties
to the Court proceeding contested the Department's Final
Redetermination, we are not publishing a Timken notice, pursuant to
Timken v. United States, 893 F.2d 337 CAFC (1990).
EFFECTIVE DATE: January 6, 1995.
FOR FURTHER INFORMATION CONTACT: Kate Johnson, Office of Antidumping
Investigations, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
4929.
SUPPLEMENTARY INFORMATION:
Background
On February 18, 1993, the Department published its Preliminary
Determination of Sales at Less Than Fair Value: Certain Compact Ductile
Iron Waterworks Fittings and Glands From the People's Republic of China
(58 FR 8930) (CDIW). In that determination, the Department found CMP's
weighted-average dumping margin to be 127.38 percent. Consequently, we
instructed the U.S. Customs Service to suspend liquidation of all
entries of the subject merchandise exported by CMP entered into U.S.
Customs territory on or after February 18, 1993, the date of
publication of the preliminary determination in the Federal Register.
In the final determination, the Department found CMP's weighted-average
dumping margin to be 127.38 percent. See Final Determination of Sales
at Less Than Fair Value: Compact Ductile Iron Waterworks Fittings and
Glands from the People's Republic of China, 58 FR 37908 (July 14,
1993). In CDIW the Department determined that, in a nonmarket economy,
ownership of an enterprise by the government provides the opportunity
for the government to control the export activities of the enterprise.
Given this potential to manipulate export pricing decisions, the
Department determined that enterprises which were state-owned, i.e.,
``owned by all the people,'' such as CMP, were ineligible for separate
rates (58 FR at 37909). On September 7, 1993, the Department published
an antidumping duty order in this proceeding. See Antidumping Duty
Order: Certain Compact Ductile Iron Waterworks Fittings and Glands From
the People's Republic of China, 58 FR 47117 (September 7, 1993).
On September 30, 1993, CMP and importer Sigma Corporation
instituted an action at the CIT challenging, along with other findings,
the Department's denial of a separate rate for CMP in the final less-
than-fair-value determination. On May 27, 1994, all parties joined in a
consent motion to the Court to remand the case to the Department, and
on June 2, 1994, the Court issued its remand order. Pursuant to the
Court's remand order, on September 30, 1994, the Department presented
to the Court the Final Redetermination of Voluntary Remand in Compact
Ductile Iron Waterworks Fittings and Glands from the People's Republic
of China.
In the final redetermination, the Department reconsidered the issue
of whether or not CMP, as an exporter of subject merchandise produced
by Bin He Foundry and Song Zhuang Foundry, was entitled to a separate
dumping margin in light of the Department's recent decision in the
Final Determination of Sales at Less than Fair Value: Silicon Carbide
from the People's Republic of China, (59 FR 22585, May 2, 1994)
(Silicon Carbide). In Silicon Carbide, the Department modified the
separate rates policy enunciated in CDIW, and evaluated whether
enterprises ``owned by all the people'' could receive separate rates
based upon evidence submitted demonstrating that reforms by the central
government had devolved control over enterprises owned by all the
people. Based on that evidence and analysis, the Department determined
that ``ownership by all the people'' does not necessarily mean that an
enterprise is controlled by the government, and therefore, such an
enterprise may qualify for a separate rate.
In the final redetermination of CDIW to determine whether CMP, an
enterprise ``owned by all the people,'' was entitled to receive a
separate rate, the Department used the criteria developed in the Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China (56 FR 20588, May 6, 1991) (Sparklers) as
amplified in Silicon Carbide. Under the separate rates criteria, the
Department assigns a separate rate only when an exporter can
demonstrate the absence of both de jure1 and de facto2
governmental control over export activities.
\1\Evidence supporting, though not requiring, a finding of de
jure absence of central control includes: (1) An absence of
restrictive stipulations associated with an individual exporter's
business and export licenses; (2) any legislative enactments
decentralizing control of companies; or (3) any other formal
measures by the government decentralizing control of companies.
\2\The factors considered include: (1) Whether the export prices
are set by or subject to the approval of a governmental authority;
(2) whether the respondent has authority to negotiate and sign
contracts and other agreements; (3) whether the respondent has
autonomy from the government in making decisions regarding the
selection of management; and (4) whether the respondent retains the
proceeds of its export sales and makes independent decisions
regarding disposition of profits or financing of losses (see Silicon
Carbide).
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Evaluating the facts for the final redetermination in CDIW in light
of the separate rates policy articulated in Silicon Carbide, the
Department determined that respondent CMP, as an exporter of subject
merchandise produced by Bin He Foundry and Song Zhuang Foundry, was
entitled to a separate rate.
As a result of calculating a separate rate for CMP, the final
weighted-average dumping margin for CMP is 0.44 percent, and is,
therefore, de minimis, pursuant to 19 CFR 353.6(a) of the Department's
regulations. Consequently, our final less-than-fair-value determination
for CMP, with respect to its exports of subject merchandise produced by
Bin He Foundry and Song Zhuang Foundry, is negative.
Exclusion From the Application of the Antidumping Duty Order, in Part
Pursuant to section 735(c)(2) of the Act and 19 CFR 353.21(c), and
consistent with the Final Determination of Sales at Less Than Fair
Value: Certain Cased Pencils From the People's Republic of China, 59 FR
55625, 31 (November 8, 1994), we are excluding from the application of
the order imports of subject merchandise that are sold by CMP and
manufactured by the producers whose factors formed the basis for the de
minimis margin. Under the NME methodology, the de minimis margin for
each exporter is based on a comparison of the exporter's U.S. price and
FMV based on the factors of production of a specific producer (which
may be a different party). The [[Page 2080]] exclusion, therefore,
applies only to subject merchandise sold by the exporter and
manufactured by that specific producer, or producers. Merchandise that
is sold by the exporter but manufactured by other producers will be
subject to the order on CDIW. This is also consistent with Jia Farn
(See, Jia Farn Manufacturing Co., Ltd. v. United States, Slip Op. 93-42
(March 26, 1993)), which held that exclusion of merchandise
manufactured and sold by respondent did not cover merchandise sold but
not manufactured by respondent. Therefore, merchandise that is sold by
CMP but produced by someone other than Bin He Foundry or Song Zhuang
Foundry is subject to suspension of liquidation at the ``all others''
cash deposit rate. In addition, if the Department has reasonable cause
to believe or suspect at any time during the existence of the
antidumping duty order that CMP has sold or is likely to sell the
subject merchandise to the United States at less than its foreign
market value, the Department may institute an administrative review of
CMP under section 751(b) of the Tariff Act of 1930, as amended.
On November 25, 1994, the CIT ordered that plaintiffs' consent
motion for injunction against liquidation, which was consented to by
the Department and defendant-intervenor, be granted. Therefore, the
effective date of CMP's exclusion from the order is retroactive to
February 18, 1993, the publication date of the Preliminary
Determination of Sales at Less Than Fair Value: Certain Compact Ductile
Iron Waterworks Fittings and Accessories Thereof from the People's
Republic of China (58 FR 8930), and the date we began suspension of
liquidation for entries of the subject merchandise from the People's
Republic of China.
Termination of Administrative Review
Since publication of the duty order, the Department has initiated,
pursuant to section 751 of the Act, the first administrative review of
the antidumping duty order. That review is examining exports of subject
merchandise during the review period by CMP (as well as other
exporters). (See Notice of Initiation of Administrative Review, 59 FR
51939 (October 13, 1994)). Because we are retroactively excluding CMP,
as an exporter of subject merchandise produced by Bin He Foundry and
Song Zhuang Foundry, from the application of this antidumping duty
order, we are also hereby terminating the administrative review with
regard to imports by CMP, which are produced by Bin He Foundry and Song
Zhuang Foundry.
Termination of Suspension of Liquidation
Pursuant to section 516(e)(2) of the Act, the Department will
instruct the U.S. Customs Service to terminate the suspension of
liquidation of subject merchandise produced by Bin He Foundry and Song
Zhuang Foundry and exported by CMP, which is entered, or withdrawn from
warehouse, for consumption on or after February 18, 1993, and to
proceed with liquidation of such entries without regard to antidumping
duties. Additionally, the Department will instruct U.S. Customs Service
to release any bond or other security with respect to entries of the
subject merchandise, pursuant to section 735(c)(3)(B) of the Act.
Dated: December 29, 1994.
Barbara R. Stafford,
Acting Assistant Secretary for Import Administration.
[FR Doc. 95-349 Filed 1-5-95; 8:45 am]
BILLING CODE 3510-DS-P