[Federal Register Volume 77, Number 116 (Friday, June 15, 2012)]
[Notices]
[Pages 35939-35941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14795]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-891]


Hand Trucks From the People's Republic of China: Notice of Court 
Decision Not in Harmony With Final Results and Notice of Amended Final 
Results

SUMMARY: On June 4, 2012, the United States Court of Appeals for the 
Federal Circuit (``CAFC'') issued its mandate in Qingdao Taifa Group 
Co. v. United States, 780 F. Supp. 2d 1342 (Fed. Cir. 2012), affirming 
the Court of International Trade's (``CIT'') or (``Court'') decision in 
Qingdao Taifa Group Co., Ltd. v. United States, Court No. 08-00245, 
Slip Op. 11-83 (CIT 2011) sustaining the Department of Commerce's 
(``the Department'') final results of its third redetermination 
pursuant to the CIT's remand order in Qingdao Taifa Group Co. Ltd. v. 
United States, Court No. 08-00245, Slip Op. 10-126 (CIT 2010) (``Remand 
III'').\1\
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    \1\  See Final Results of Redetermination Pursuant To Court 
Remand, Court No. 08-00245, dated March 17, 2011, available at: 
http://www.ia.ita.doc.gov/remands/index.html (``Redetermination 
III'').
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    Consistent with the decision of the 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, 626 F.3d 1374 (Fed. 
Cir. 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 results and is amending the final results of the 
2005-2006 administrative review of hand trucks from the People's 
Republic of China (``PRC'') with respect to the margin assigned to 
Qingdao Taifa Group Co. Ltd. (``Taifa'') covering the period of review 
(``POR'') December 1, 2005, through November 30, 2006.

EFFECTIVE DATE: June 14, 2012.

FOR FURTHER INFORMATION CONTACT: Brooke Kennedy, Office 8, Import 
Administration, International Trade Administration, U.S. Department of

[[Page 35940]]

Commerce, 14th Street and Constitution Avenue NW., Washington, DC 
20230; telephone: (202) 482-3818.

SUPPLEMENTARY INFORMATION: In the Final Results,\2\ the Department 
applied total adverse facts available (``AFA'') to Taifa because we 
found that Taifa withheld information that had been requested, 
significantly impeded the proceeding and provided information that 
could not be verified. Additionally, the Department found evidence at 
verification which indicated local government ownership over Taifa, and 
contradicted Taifa's submitted questionnaire responses. As such, the 
Department determined that Taifa failed to fully explain the ownership 
interests in the company and because of this, Taifa failed to 
demonstrate entitlement to a separate rate. Accordingly, the Department 
applied the PRC-wide rate of 383.60 percent to Taifa for the POR. On 
August 11, 2009, the CIT remanded the Final Results to the Department 
in Remand I.\3\ The Court sustained the Department's decision to apply 
AFA to Taifa, however, the Court remanded the matter to the Department 
to determine whether the local government ownership resulted in de 
facto control such that the Department could treat Taifa as part of the 
PRC-wide entity. Further, the Court held that because the PRC-wide 
entity rate presumes government control, the Department is not 
permitted to select the PRC-wide rate as the AFA rate without first 
making a determination about the presence or absence of de facto 
government control over Taifa.\4\
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    \2\ See Hand Trucks and Certain Parts Thereof from the People's 
Republic of China: Final Results of 2005-2006 Administrative Review, 
73 FR 43684 (July 28, 2008) (``Final Results'').
    \3\  See Qingdao Taifa Group Co., Ltd. v. United States, 637 F. 
Supp. 2d 1231, 1244 (CIT 2009) (``Remand I'').
    \4\  See id.
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    On January 22, 2010, the Department issued a hand trucks 
redetermination, Redetermination I.\5\ Pursuant to Remand I, we 
determined that the record did not contain affirmative evidence that a 
government entity exercised de facto control over Taifa, so we granted 
Taifa a separate rate and assigned an AFA margin based on a control 
number-specific margin from the most recently completed segment of the 
proceeding in which Taifa participated as a mandatory respondent. 
Specifically, the margin was calculated from Taifa's own reported 
information and data from the investigation. The Department's 
redetermination resulted in changing Taifa's margin from 383.60 percent 
to 227.73 percent.
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    \5\ See Final Results of Redetermination Pursuant To Court 
Remand, Court No. 08-00245, dated January 22, 2010, 
(``Redetermination I'') available at: http://www.ia.ita.doc.gov/remands/index.html.
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    On May 12, 2010, the CIT remanded the matter a second time in 
Remand II, finding that the Department had failed to meaningfully 
investigate the question of government control.\6\ The CIT declined to 
decide whether the 227.73 percent rate provided by the Department was 
supported, but required the Department to make a decision supported by 
substantial evidence about Taifa's independence from or control by the 
Chinese government.\7\
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    \6\ Qingdao Taifa Group Co., Ltd. v. United States, 710 F. Supp. 
2d 1352, 1357 (CIT 2012) (``Remand II'').
    \7\ See id. at 1358.
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    On July 27, 2010, the Department issued its second redetermination, 
Redetermination II,\8\ in which we found that because the information 
provided by Taifa regarding its ownership was unreliable, the 
Department was unable to conclude based on substantial evidence that 
Taifa was de facto free of government control and thus entitled to a 
separate rate. Therefore the Department assigned Taifa the PRC-entity 
rate of 383.60 percent.
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    \8\  See Final Results of Redetermination Pursuant To Court 
Remand, Court No. 08-00245, dated July 27, 2010, (``Redetermination 
II'') available at: http://www.ia.ita.doc.gov/remands/index.html.
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    The CIT ruled on Redetermination II on November 12, 2010, and once 
again remanded back to the Department Remand III ordering that we 
either explain why substantial record evidence supports a finding of 
central government control thereby justifying imposition of the PRC-
wide entity rate, or that we grant Taifa a separate rate ``grounded in 
the realities of the industry.'' \9\
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    \9\  See id., at 1385, 1386.
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    Pursuant to Remand III, on March 27, 2011, the Department issued 
its third redetermination, Redetermination III, this time granting 
Taifa a separate rate, concluding after re-weighing the evidence that 
there was not substantial record evidence that the central government 
controlled Taifa's business decisions.\10\ The Department assigned a 
rate of 145.90 percent based on 36 percent of Taifa's total sales by 
quantity from the prior segment of the proceeding when Taifa was a 
cooperative respondent. The CIT sustained Redetermination III on July 
12, 2011, holding that the Department corroborated the rate to the 
extent practicable, the rate was not punitive nor so out of touch with 
Taifa's practice as to be aberrational, and the Department used a 
reasonable methodology to calculate the rate.\11\ After hearing the 
issue on appeal, on June 4, 2012, the CAFC affirmed the CIT's July 12, 
2011 opinion, sustaining Redetermination III.\12\
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    \10\  See Final Results of Redetermination Pursuant To Court 
Remand, Court No. 08-00245, dated March 27, 2011, available at: 
http://www.ia.ita.doc.gov/remands/index.html (``Redetermination 
III'').
    \11\  Qingdao Taifa Group Co., Ltd. v. United States, Court No. 
08-00245, Slip Op. 11-83 (CIT Jul. 12, 2011).
    \12\ Qingdao Taifa Group Co. v. United States, 2012 U.S. App. 
LEXIS 7281 (Fed. Cir. Apr. 11, 2012).
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Timken Notice

    In its decision in Timken, as clarified by Diamond Sawblades, the 
CAFC has held that, pursuant to section 516A(c) 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. The CAFC's decision sustaining the 
Department's remand redetermination with respect to Taifa constitutes a 
final decision of that court that is not in harmony with the 
Department's 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 time for application for a writ of 
certiorari, or if a writ of certiorari is granted, pending a final and 
conclusive court decision.

Amended Final Results

    Because there is now a final court decision, we are amending the 
Final Results to reflect the results of the litigation. The revised 
weighted-average dumping margin is as follows:

------------------------------------------------------------------------
                                                                 Percent
                           Exporter                              margin
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Qingdao Taifa Group Co., Ltd..................................    145.90
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    Accordingly, if there is no writ of certiorari granted in this 
case, the Department will instruct U.S. Customs and Border Protection 
to assess antidumping duties on entries of the subject merchandise 
exported by Taifa during the POR at 145.90 percent. Additionally, 
because Taifa has not participated in any administrative reviews since 
the December 1, 2005, through November 30, 2006 administrative review, 
Taifa's cash deposit rate will be 145.90 percent, effective June 14, 
2012 (i.e., 10 days after the issuance of the CAFC mandate).

[[Page 35941]]

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

     Dated: June 13, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-14795 Filed 6-14-12; 8:45 am]
BILLING CODE 3510-DS-P