[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Notices]
[Pages 69705-69706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-29052]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-904]


Certain Activated Carbon From the People's Republic of China: 
Notice of Court Decision Not in Harmony With Final Results of 
Administrative Review and Notice of Amended Final Results of 
Administrative Review Pursuant to Court Decision

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

SUMMARY: On October 24, 2011, the United States Court of International 
Trade (``CIT''). sustained the Department of Commerce's (``the 
Department'') results of redetermination pursuant to the CIT's remand 
order in Calgon Carbon Corporation, et al. v. United States, Consol. 
Court No. 09-00524 (February 17, 2011) (``Remand'').\1\
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    \1\ See Final Results Of Redetermination Pursuant To Court 
Remand, Court No. 09-00524, dated July 25, 2011, available at: 
http://www.ia.ita.doc.gov/remands/index.html (``Carbon Remand''). 
The previous action, Calgon Carbon Corporation, et al. v. United 
States, Court No. 09-00518 was ``deconsolidated'' which resulted in 
a caption change to Hebei Foreign Trade and Advertising 
Corporation., et al. v. United States, Court No. 09-00524 (CIT 
October 24, 2011) Slip Op. 11-134 (judgment).
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    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''), as clarified by Diamond 
Sawblades Mfrs. Coalition v. United States, F.3d, Court No. 2010-1024, 
1090 (Fed. Cir. December 9, 2010) (``Diamond Sawblades''), the 
Department is notifying the public that the final judgment in this case 
is not in harmony with the Department's final determination and is 
amending the final results of the administrative review of the 
antidumping duty order on certain activated carbon from the People's 
Republic of China (``PRC'') covering the period of review (``POR'') of 
October 11, 2006 through March 31, 2008, with respect to the separate 
rate margin assigned to Hebei Foreign Trade and Advertising Corporation 
(``Hebei Foreign'') and the margin assigned to Ningxia Guanghua 
Cherishmet Activated Carbon Co., Ltd., and its affiliate \2\ 
(collectively ``Cherishmet''). See First Administrative Review of 
Certain Activated Carbon From the People's Republic of China: Final 
Results, 74 FR 57995 (November 10, 2009) (``Final Results'') and 
accompanying Issues and Decision Memorandum (``IDM'') and Certain 
Activated Carbon From the People's Republic of China: Amended Final 
Results of Antidumping Duty Administrative Review, 74 FR 66952 
(December 17, 2009) (``Amended Final Results'') (collectively ``AR1 
Final Results'').
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    \2\ The Department found Ningxia Guanghua Cherishmet Activated 
Carbon Co., Ltd. and Beijing Pacific Activated Carbon Products Co., 
Ltd. (hereinafter referred to as ``Cherishmet'') to be affiliated 
and a single entity in Final Results at 74 FR 57998.

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DATES: Effective Date: October 24, 2011.

FOR FURTHER INFORMATION CONTACT: Robert Palmer, Office 9, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue NW., Washington, DC 
20230; telephone: (202) 482-9068.

SUPPLEMENTARY INFORMATION: In the first administrative review of the 
antidumping duty order on certain activated carbon from the PRC, the 
Department did not grant Hebei Foreign a separate rate, stating that 
record evidence demonstrated that Hebei Foreign's separate rate company 
certification was certified by Mr. Wang Kezhang, who was not employed 
by Hebei Foreign, and, therefore, the Department could not consider the 
separate rates certification to have been properly certified on behalf 
of the company in accordance with the filing requirements of 19 CFR 
351.303(g)(1).\3\ The CIT remanded to the Department to explain the 
requirements of 19 CFR 351.303(g)(1) and permit Hebei Foreign to 
attempt to find an alternative individual who fulfills the Department's 
regulatory requirements regarding certifications if the Department

[[Page 69706]]

determines that Mr. Wang was in a position to know the facts, but was 
not an employee in the sense required by the Department's certification 
regulation.\4\
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    \3\ See Final Results IDM at Comment 22.
    \4\ See Remand at 9.
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    Moreover, in the AR1 Final Results, the Department valued 
hydrochloric acid (``HCl'') using World Trade Atlas (``WTA'') data for 
Cherishmet and valued carbonized materials using the WTA value for 
other cokes of coal. The CIT remanded to the Department to permit 
Cherishmet the opportunity to place HCl data on the record \5\ and 
remanded to the Department to address argument that imports under 
Indian HTS 2704.00.90 ``Other Cokes of Coal'' are not product-specific 
and ``to select the best method for valuation of the input as 
possible.'' \6\
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    \5\ See Remand at 15.
    \6\ See id. at 19.
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    Additionally, in the AR1 Final Results, the Department calculated a 
surrogate wage value in accordance with the regression-based 
methodology set forth in 19 CFR 351.408(c)(3). In Dorbest Ltd. v. 
United States, 604 F.3d 1363 (Fed. Cir. 2010) (``Dorbest''), the U.S. 
Court of Appeals for the Federal Circuit (``CAFC'') held that the 
Department's ``{regression-based{time}  method for calculating wage 
rates {as stipulated by 19 CFR 351.408(c)(3){time}  uses data not 
permitted by {the statutory requirements laid out in section 773 of the 
Tariff Act of 1930, as amended (the ``Act'') (i.e. 19 U.S.C. 
1677b(c)){time} .'' \7\ Specifically, the CAFC interpreted section 
773(c) of the Act to require the use of data from market economy 
countries that are both economically comparable to the NME at issue and 
significant producers of the subject merchandise, unless such data are 
unavailable. Because the Department's regulation requires the 
Department to use data from economically dissimilar countries and from 
countries that do not produce comparable merchandise, the CAFC 
invalidated the Department's labor regulation (19 CFR 351.408(c)(3)). 
On June 21, 2011, the Department revised its labor calculation 
methodology for valuing an NME respondent's cost of labor in NME 
antidumping proceedings.\8\ In Labor Methodologies, the Department 
found that the best methodology for valuing the NME respondent's cost 
of labor is to use the industry-specific labor rate from the surrogate 
country. Additionally, the Department found that the best data source 
for calculating the industry-specific labor rate for the surrogate 
country is the data reported under ``Chapter 6A: Labor Cost in 
Manufacturing'' from the ILO Yearbook of Labor Statistics.\9\ Following 
Dorbest, the Department requested a voluntary remand for its labor rate 
calculations for Cherishmet in the AR1 Final Results. The CIT granted 
the Department's request for a voluntary remand for its labor rate 
calculations for Cherishmet in the AR1 Final Results with instructions 
that the labor wage value be recalculated without reliance on the 
invalidated labor regulation.\10\
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    \7\ See Dorbest, 604 F.3d at 1372.
    \8\ See Antidumping Methodologies in Proceedings Involving Non-
Market Economies: Valuing the Factor of Production: Labor, 76 FR 
36092 (June 21, 2011) (``Labor Methodologies'').
    \9\ See Labor Methodologies at 39063.
    \10\ See Remand at 24-25.
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    On July 25, 2011, the Department issued its final results of 
redetermination pursuant to Remand. Pursuant to Remand, we granted a 
separate rate to Hebei Foreign for the first administrative review 
period. Additionally, pursuant to the Dorbest ruling, Labor 
Methodologies and Remand, we revised the labor rate calculation 
methodology to comply with the CAFC's interpretation of section 773 of 
the Act. We also recalculated the HCl surrogate value using prices from 
Chemical Weekly, and recalculated the carbonized material surrogate 
value using WTA Indian import statistics under the Harmonized Tariff 
Schedule number for coconut shell charcoal. The Department's 
redetermination resulted in changes to the AR1 Final Results for Hebei 
Foreign's margin from 228.11 percent to 16.35 percent and for 
Cherishmet's margin from 16.84 percent to 2.95 percent. The CIT 
sustained the Department's remand redetermination with respect to Hebei 
Foreign and Cherishmet on October 24, 2011.\11\
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    \11\ See Hebei Foreign Trade and Advertising Corporation., et 
al. v. United States, Court No. 09-00524 (CIT October 24, 2011) Slip 
Op. 11-134 (judgment).
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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 October 24, 2011 judgment sustaining the Department's remand 
redetermination with respect to Hebei Foreign and Cherishmet 
constitutes a final decision of that court that is not in harmony with 
the Department's AR1 Final Results. This notice is published in 
fulfillment of the publication requirements of Timken. Accordingly, the 
Department will continue the suspension of liquidation of the subject 
merchandise pending the expiration of the period of appeal or, if 
appealed, pending a final and conclusive court decision. The cash 
deposit rate will remain the company-specific rate established for the 
subsequent and most recent period during which the respondents were 
reviewed.\12\
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    \12\ Limited to Cherishmet. See Certain Activated Carbon From 
the People's Republic of China: Final Results and Partial Rescission 
of Second Antidumping Duty Administrative Review, 75 FR 70208, 70209 
(November 17, 2010) (``Carbon AR2'').
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Amended Final Results

    Because there is now a final court decision with respect to Hebei 
Foreign and Cherishmet, we are amending the AR1 Final Results to 
reflect the results of the above-described litigation. The revised 
dumping margins are as follows:

------------------------------------------------------------------------
                                                                Margin
                        Exporter name                          (percent)
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Hebei Foreign Trade and Advertising Corporation.............       16.35
Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd.\13\..        2.95
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    In the event the CIT's ruling is not appealed or, if appealed, 
upheld by the CAFC, the Department will instruct U.S. Customs and 
Border Protection to assess antidumping duties on entries of the 
subject merchandise during the POR from Hebei Foreign and Cherishmet 
based on the revised assessment rates calculated by the Department.
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    \13\ The Department found Ningxia Guanghua Cherishmet Activated 
Carbon Co., Ltd. and Beijing Pacific Activated Carbon Products Co., 
Ltd. to be affiliated and a single entity in Final Results at 74 FR 
57998.
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    This notice is issued and published in accordance with sections 
516A(c)(1), 516A(e), 751(a)(1), and 777(i)(1) of the Act.

    Dated: November 3, 2011.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2011-29052 Filed 11-8-11; 8:45 am]
BILLING CODE 3510-DS-P