[Federal Register Volume 75, Number 196 (Tuesday, October 12, 2010)]
[Notices]
[Pages 62505-62506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25689]



[[Page 62505]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-913]


Certain New Pneumatic Off-the-Road Tires From the People's 
Republic of China: Notice of Decision of the Court of International 
Trade Not in Harmony

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

SUMMARY: On October 1, 2010, the United States Court of International 
Trade (``CIT'') sustained the second remand redetermination made by the 
Department of Commerce (``Department'') pursuant to the CIT's remand of 
the final determination in the countervailing duty investigation on 
certain new pneumatic off-the-road tires (``OTR tires'') from the 
People's Republic of China (``PRC''). See GPX Int'l Tire Corp. v. 
United States, Consol. Ct. No. 08-00285, Slip Op. 10-112 (Ct. Int'l 
Trade October 1, 2010) (``GPX III''). This case arises out of the 
Department's final determination in the countervailing duty (``CVD'') 
investigation on OTR tires from the PRC. The final judgment in this 
case was not in harmony with the Department's July 2008 final 
determination.

DATES: Effective Date: October 12, 2010.

FOR FURTHER INFORMATION CONTACT: Andrew Huston or Jack Zhao, AD/CVD 
Operations, Office 6, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington DC 20230; telephone (202) 482-4261 
or (202) 482-1396, respectively.

SUPPLEMENTARY INFORMATION: In July 2008, the Department published a 
final determination in which it found that countervailable subsidies 
are being provided to producers/exporters of OTR tires from the PRC. 
See Certain New Pneumatic Off-The-Road-Tires From the People's Republic 
of China: Final Affirmative Countervailing Duty Determination and Final 
Negative Determination of Critical Circumstances, 73 FR 40480 (July 15, 
2008) (``Final Determination''). As part of the Final Determination, 
the Department calculated a CVD rate of 14.00 percent for Hebei 
Starbright Tire Co., Ltd. (``Starbright''), 6.85 percent for Tianjin 
United Tire & Rubber International Co., Ltd. (``TUTRIC''), and 2.45 
percent for Guizhou Tire Co., Ltd. (``GTC'') and an all-others CVD rate 
of 5.62 percent. See Final Determination, 73 FR at 40483. On September 
4, 2008, the Department published a CVD order on OTR tires from the 
PRC. See Certain New Pneumatic Off-the-Road Tires From the People's 
Republic of China: Countervailing Duty Order, 73 FR 51627 (September 4, 
2008).
    Domestic interested party Bridgestone Americas, Inc. and 
Bridgestone Americas Tire Operations, LLC (collectively, 
``Bridgestone''), petitioners Titan Tire Corporation and the United 
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied and 
Industrial Service Workers International Union, AFL-CIO-CLC 
(collectively, ``Titan''), interested party GPX International Tire 
Corporation, and respondent companies Starbright and TUTRIC each timely 
challenged various aspects of the Final Determination to the CIT. Among 
the issues raised before the Court were the Department's authority to 
apply the CVD law to the PRC while also treating the PRC as a non-
market economy (``NME'') country for antidumping (``AD'') purposes and 
the Department's application of a cut-off date of December 11, 2001, 
the date of the PRC's accession to the World Trade Organization, for 
identifying and measuring subsidies in the PRC.
    On September 18, 2009, the CIT remanded this matter to the 
Department either ``to forego the imposition of CVDs on the merchandise 
at issue or * * * to adopt additional policies and procedures to adapt 
its NME AD and CVD methodologies to account for the imposition of CVD 
remedies on merchandise from the PRC.'' GPX Int'l Tire Corp. v. United 
States, Consol. Ct. No. 08-00285, Slip Op. 09-103 at *33 (Ct. Int'l 
Trade September 18, 2009) (``GPX I''). The CIT also ordered the 
Department, should it continue to impose CVD remedies, to ``refrain 
from using a uniform cut-off date for identifying and measuring 
subsidies in the PRC while it remains a designated NME and must 
evaluate the specific facts of each subsidy to determine what kind of 
subsidy exists and whether it is measurable at a particular time in the 
PRC.'' Id.
    On April 26, 2010, the Department issued an initial remand 
redetermination under protest in which it continued to impose CVD 
remedies upon imports of subject merchandise from the PRC, but 
determined, for certain of those imports, to offset those CVDs against 
calculated dumping margins. See Remand Redetermination, GPX Int'l Tire 
Corp. v. United States, Consol. Ct. No. 08-00285, dated April 26, 2010, 
at 7-11, 42-44. The Department also under protest refrained from using 
a uniform cut-off date for identifying and measuring subsidies in the 
PRC and instead evaluated the specific facts of each subsidy to 
determine the nature of each subsidy and the point in time that each 
type of subsidy became measurable. Id. at 20-40, 51-53.
    On August 4, 2010, the CIT ruled the above-described offset 
methodology to be unreasonable and inconsistent with the statute and 
ordered the Department ``to forego the imposition of CVDs on the 
merchandise at issue.'' GPX Int'l Tire Corp. v. United States, Consol. 
Ct. No. 08-00285, Slip Op. 10-84 at *28 (Ct. Int'l Trade August 4, 
2010) (``GPX II''). Accordingly, in a second remand redetermination 
filed with the CIT under protest on September 3, 2010, the Department 
excluded Starbright and TUTRIC from the CVD order, but continued to 
apply its revised approach to selecting the date on which to identify 
and measure subsidies adopted under protest in its initial remand 
redetermination with respect to GTC. See Second Remand Redetermination, 
GPX Int'l Tire Corp. v. United States, Consol. Ct. No. 08-00285, dated 
September 3, 2010, at 2-4. As a result, the Department calculated a CVD 
rate of 3.35 percent for GTC and an all-others CVD rate of 3.35 
percent. Id. at 8. The CIT affirmed the Department's second remand 
redetermination on October 1, 2010. See GPX III, Slip Op. 09-112 at *3.

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 and must suspend liquidation of entries 
pending a ``conclusive'' court decision. The CIT's GPX III decision of 
October 1, 2010 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 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. 
In the event the CIT's decision is not appealed or is affirmed on 
appeal, the Department will publish an amended final determination 
excluding OTR tires produced and exported by Starbright or TUTRIC from 
the countervailing duty order on OTR tires from the PRC and will issue

[[Page 62506]]

revised instructions to U.S. Customs and Border Protection.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: October 6, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-25689 Filed 10-8-10; 8:45 am]
BILLING CODE 3510-DS-P