04-15636. Bulk Aspirin from the People's Republic of China: Notice of Court Decision and Suspension of Liquidation

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 29, 2004, the United States Court of International Trade issued a decision invalidating certain sets of liquidation instructions issued by the Department of Commerce in the antidumping proceeding covering entries of bulk aspirin from the People's Republic of China. Jilin Henghe Pharmaceutical Co. and Jilin Pharmaceutical USA v. United States, Consol. Court No. 04-00151, Slip. Op. 04-77 (CIT 2004) (“Jilin Henghe”). Consistent with the decision of the United States Court of Appeals for the Federal Circuit in Timken Co. v. United States, 893 F.2nd 337 (Fed. Cir. 1990) (“Timken”), the Department is notifying the public that the Jilin Henghe decision was “not in harmony” with the Department's amended final determination, or its administrative reviews.

EFFECTIVE DATE:

July 9, 2004.

FOR FURTHER INFORMATION CONTACT:

Scott Holland or Julie Santoboni, AD/CVD Enforcement Group I, Office 1, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On July 11, 2000, the Department of Commerce (“the Department”) issued an antidumping duty order covering bulk aspirin from the People's Republic of China. Notice of Antidumping Duty Order: Bulk Aspirin From the People's Republic of China, 65 FR 42673 (July 11, 2000). Jilin Pharmaceutical Company, now known as Jilin Henghe Pharmaceutical Company (“Jilin”) appealed the final determination and antidumping order, but did not obtain an injunction. Jilin Pharmaceutical Co., Ltd. v. United States, No. 00-08-00401, consolidated into Rhodia, Inc. v. United States, Consol. No. 00-08-00407, 240 F. Supp. 2d 1247 (CIT 2002).

Jilin requested and received an administrative review of the antidumping order covering its imports that had entered from July 6, 2000 through June 30, 2001. Bulk Aspirin from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Changed Circumstances Review, 67 FR 51167 (August 7, 2002); Notice of Amended Final Results of Antidumping Duty Administrative Review: Bulk Aspirin from the People's Republic of China, 68 FR 12036 (March 13, 2003) (“Amended First Review”). Similarly, for the second period of review, Jilin requested and received an administrative review of the antidumping duty order covering its imports that had entered from July 1, 2001 through June 30, 2002. Bulk Aspirin from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 68 FR 17343 (April 9, 2003); Notice of Amended Final Results of Antidumping Duty Administrative Review: Bulk Aspirin from the People's Republic of China, 68 FR 54890 (September 19, 2003) (“Amended Second Review”).

The CIT affirmed the Department's Final Results of Redetermination on September 9, 2002. See Rhodia Inc. v. United States, 240 F. Supp. 2d 1247 (CIT 2002) (“Rhodia II”).

On September 30, 2002, Commerce published a notice of Court decision. Bulk Aspirin from the People's Republic of China: Notice of Court Decision and Suspension of Liquidation, 67 FR. 61315 (September 30, 2002) (“Aspirin Timken”); see also Rhodia, Inc. v. United States, 185 F. Supp. 2d 1343 (CIT 2001). As a result of the remand redetermination, Jilin Henghe was excluded from the antidumping order. See Redetermination Pursuant to Court Remand, Rhodia, Inc. v. United States and Jilin Pharmaceutical Co., Ltd.; Shandong Xinhua Pharmaceutical Factory, Ltd, Consol. Court No. 00-08-00407 (March 29, 2002).

The domestic producer, Rhodia, appealed this Court's decision to the United States Court of Appeals for the Federal Circuit (“Federal Circuit”). On October 14, 2003, the CIT's decision was affirmed by the Federal Circuit. See Rhodia Inc. v. United States, 2003 U.S. App. LEXIS 21424 (Fed. Cir. Oct. 14, 2003) (Rhodia II aff'd without opinion). At the conclusion of the appeal, the Department published an amended final determination and an amended order which excluded Jilin from the antidumping duty order, effective September 30, 2002. Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision: Bulk Aspirin from the People's Republic of China, 68 FR 75208 (December 30, 2003) (“Amended Final Determination and Order”).

The domestic producer requested a review of Jilin's entries during the third period of review, but it subsequently withdrew its request for a review of Jilin. The Department rescinded the review with respect to Jilin. Bulk Aspirin from the People's Republic of China: Notice of Partial Rescission of Antidumping Duty Administrative Review, 69 FR 5126 (February 3, 2004) (“Partial Rescission Notice”). Accordingly, the Department instructed U.S. Customs and Border Protection (“CBP”) to liquidate Jilin's entries from July 1, 2002 through September 29, 2002 (i.e., from the beginning of the third administrative review period through the Department's publication of the Aspirin Timken) at the cash deposit rate required at the time of entry. Partial Rescission Notice at 5127.

On April 14, 2004, Jilin and Jilin USA filed their complaint, challenging the Department's liquidation instructions to CBP that covered entries produced and exported by Jilin and imported by Jilin USA. On June 29, 2004, the CIT found that the instructions issued pursuant to the Amended Final Determination and Order, the automatic liquidation instructions issued after the rescission of the third period of review with respect to Jilin, and the liquidation instructions issued pursuant to the first and second administrative reviews, were not in accordance with law, and ordered that any Jilin unliquidated entries of bulk aspirin be liquidated without regard to antidumping duties. See Jilin Henghe.

Timken Notice

In its decision in Timken, the Federal Circuit held that, pursuant to 516a(c)(1) and (e) of the Act, the Department must publish notice of a decision of the CIT which is not in harmony with the Department's determination. The CIT's decision in Jilin Henghe was not in harmony with the Department's Amended Final Determination and Order, Amended First Review, or Amended Second Review. Therefore, publication of this notice fulfills the statutory obligation.

Suspension of Liquidation

This notice will serve to continue the suspension of liquidation pending the expiration of the period to appeal the CIT's June 29, 2004, decision, or, if that decision is appealed, pending a final decision by the Federal Circuit. Because the CIT issued a temporary restraining order on April 27, 2004, which the CIT continued in a preliminary injunction, the Department will continue to suspend entries of bulk aspirin from the People's Republic of China that: (1) were produced and exported by Jilin, and imported by Jilin USA; (2) were entered or withdrawn from warehouse, for consumption, from July 6, 2000 through September 29, 2002; (3) were subject to the determinations in the Amended First Review, the Amended Second Review, and the Amended Final Determination and Order; and (4) remain unliquidated as of April 27, 2004. The Department will issue liquidation instructions covering these entries if the CIT's decision is not appealed, or if it is affirmed on appeal.

Dated: July 2, 2004.

Jeffrey A. May,

Acting Assistant Secretary for Import Administration.