Kaiyuan Group Corp. v. United States, (2004)

Extract

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Kaiyuan Group Corp. v. United States, (2004)

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UNITED STATES COURT OF INTERNATIONAL TRADE

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KAIYUAN GROUP CORP., et al., :

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Plaintiffs, :

: Before: WALLACH, Judge v. : Consol. Court No.: 02-00573 :

UNITED STATES, :

: Defendant, : PUBLIC VERSION

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and :

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PENCIL SECTION WRITING : INSTRUMENT MANUFACTURERS : ASS'N, et al., :

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Defendant-Intervenors. : ____________________________________: [Plaintiff Kaiyuan Group Corp.'s Motion for Judgment On the Agency Record is denied; Plaintiffs China First Pencil's Motion for Judgment on the Agency Record Pursuant to Rule 56.2 is granted in part and denied in part; and the United States Department of Commerce's Final Results are remanded]

Dated: May 14, 2004

DeKieffer & Horgan, (James Kevin Horgan and Wakako Takatori) for Plaintiff Kaiyuan Group Corporation.

Lafave & Sailer LLP, (Francis J. Sailer) for Plaintiffs China First Pencil Co., Ltd., et al.

Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Ada E. Bosque, Trial Attorney, U.S. Department of Justice, Civil Division, Commercial Litigation Branch; and Philip J. Curtin, Attorney, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of Counsel, for Defendant United States.

Neville Peterson LLP, (George W. Thompson) for Defendant-Intervenors.

OPINION

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I

Introduction This matter comes before the court on Plaintiff Kaiyuan Group Corp.'s ("Kaiyuan") Motion for Judgment Upon the Agency Record ("Kaiyuan's Motion"), and Plaintiffs', China First Pencil Co. ("China First"), Guangdong Provincial Stationary & Sporting Goods Import & Export Corp. ("Guangdong"), Orient International Holding Shanghai Foreign Trade Co., Ltd. ("SFTC"), and Three Star Stationary Industry Co., Ltd. ("Three Star"), (collectively, "Plaintiffs China First"), Motion for Judgment on the Agency Record Pursuant to USCIT R. 56.2 ("China First's Motion"). Plaintiffs challenge certain aspects of the United States Department of Commerce's ("Commerce") decision in Certain Cased Pencils from the People's Republic of China; Final Results and Partial Rescission of Antidumping Duty Administrative Review, 67 Fed. Reg. 48,612 (July 25, 2002) ("Final Results"), as amended in Notice of Amended Final Results and Partial Rescission of Antidumping Duty Administrative Review: Certain Cased Pencils from the People's Republic of China, 67 Fed. Reg. 59,049 (Sept. 19, 2002) ("Amended Final Results"). The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (1999). For the reasons set forth below, Kaiyuan's Motion is denied; China First's Motion is granted in part and denied in part; and Commerce's Final Results are remanded for action consistent with this opinion.

II

Background In 1994, Commerce published an antidumping order for certain cased pencils from the People's Republic of China ("PRC"). Antidumping Duty Order: Certain Cased Pencils from the

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Commerce published its notice of preliminary results and partial rescission of the 1999-2000 review on January 17, 2002. Certain Cased Pencils From the People's Republic of China; Preliminary Results and Rescission in Part of Antidumping Administrative Review, 67 Fed. Reg. 2,402. (Jan. 17, 2002) ("Preliminary Results"). In the Preliminary Results, the review was partially rescinded as to Guangdong and Three Star "because they made no shipments of the

1 The scope of the administrative review covered "certain cased pencils of any shape or dimension which are writin...

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