[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 jure<SUP>1 and de facto<SUP>2 
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