Heavy Forged Hand Tools, Finished or Unfinished, With or Without Handles, From the People's Republic of China: Notice of Court Decision Not In Harmony

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 22, 2005, in Tianjin Machinery Import & Export Corp., v. United States and Ames True Temper, Slip Op. 05-127, the Court of International Trade (CIT) affirmed the Results of Redetermination Pursuant to Court Remand released by the Department of Commerce (the Department) on July 20, 2004. Consistent with the decision of the U.S. Court of Appeals for the Federal Circuit (CAFC) in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), the Department will continue to order the suspension of liquidation of the subject merchandise, where appropriate, until there is a “conclusive” decision in this case. If the case is not appealed, or if it is affirmed on appeal, the Department will instruct U.S. Customs and Border Protection (CBP) to liquidate all relevant entries from Tianjin Machinery Import & Export Corporation (TMC), as appropriate.

EFFECTIVE DATE:

October 13, 2005.

FOR FURTHER INFORMATION CONTACT:

Thomas Martin, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue, NW, Washington, DC 20230, telephone 202-482-3936, fax 202-482-5105.

SUPPLEMENTARY INFORMATION:

Background

On September 22, 2003, the Department issued its final scope ruling in which we determined that the cast picks imported by TMC are included within the scope of the antidumping duty order on picks/mattocks. See Memorandum to the File from Thomas Futtner, Acting Office Director, to Holly A. Kuga, Acting Deputy Assistant Secretary for Group II, “Final Scope Ruling - Request by Tianjin Machinery Import & Export Corporation for a Ruling on Cast Picks,” dated September 22, 2003 (TMC Scope Ruling). TMC filed a summons and complaint with the CIT on October 8 and 17, 2003, respectively, challenging the TMC Scope Ruling. In response to TMC's motion for judgment on the administrative record, the Department moved for and obtained from the CIT an order for a voluntary remand to reconsider the determination made in the TMC Scope Ruling in view of the decision of the CAFC in Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed Cir. 2002). On April 7, 2004, the CIT granted the Department's unopposed motion for a voluntary remand. The Department filed its redetermination pursuant to the CIT's remand on July 20, 2004, in which the Department reconsidered the determination set forth in the TMC Scope Ruling and concluded that the cast picks at issue do not fall within the scope of the picks/mattocks order. See Results of Redetermination Pursuant to Court Remand for Tianjin Machinery Import & Export Corporation v. United States and Ames True Temper at 1 (July 20, 2004). On September 22, 2005, the CIT affirmed the Department's redetermination.

Suspension of Liquidation

The CAFC, in Timken, held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. Publication of this notice fulfills that obligation. The CAFC also held that the Department must suspend liquidation of the subject merchandise until there is a “conclusive” decision in the case. Therefore, pursuant to Timken, the Department must continue to suspend liquidation of unliquidated entries pending the expiration of the period to appeal the CIT's September 22, 2005, decision affirming the Department's remand results or pending a final decision of the CAFC if that decision is appealed. The Department will instruct CBP to liquidate relevant unliquidated entries of the subject merchandise without regard to antidumping duties in the event that the CIT's ruling is not appealed, or if appealed and upheld by the CAFC.

We are issuing and publishing this notice in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended.