[Federal Register Volume 68, Number 249 (Tuesday, December 30, 2003)]
[Notices]
[Pages 75208-75210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32071]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-853]


Bulk Aspirin From the People's Republic of China: Notice of 
Amended Final Determination and Amended Order Pursuant to Final Court 
Decision

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

ACTION: Notice of amended final determination and amended order 
pursuant to final court decision on Bulk Aspirin from the People's 
Republic of China.

-----------------------------------------------------------------------

SUMMARY: On September 9, 2002, the Court of International Trade 
(``CIT'' or ``the Court'') affirmed the Department's remand 
determination and entered a judgment order in Rhodia, Inc. v. United 
States, 240 F. Supp. 2d 1247 (CIT 2002) (``Rhodia II''), a lawsuit 
challenging certain aspects of the Department of Commerce's (``the 
Department'') Notice of Final Determination of Sales at Less Than Fair 
Value: Bulk Aspirin From the People's Republic of China, 65 FR 33805 
(May 25, 2000) and accompanying Issues and Decision Memorandum (May 17, 
2000) (``Issues and Decision Memorandum''), and Notice of Amended Final 
Determination of Sales at Less Than Fair Value: Bulk Aspirin from the 
People's Republic of China, 65 FR 39598 (June 27, 2000) (collectively, 
``Final Determination''). On October 14, 2003, the CIT's opinion 
upholding the Department's final remand was affirmed without opinion by 
the U.S. Court of Appeals for the Federal Circuit (``Federal 
Circuit''). See Rhodia II, 240 F. Supp. 2d 1247 (CIT 2002) aff'd mem. 
Ct. No. 03-1097 (October 14, 2003); 2003 U.S. App. LEXIS 21424.
    In its remand determination, the Department reviewed the record 
evidence regarding the extent to which the Indian surrogate producers 
are integrated and concluded that the evidence did not support the 
Final Determination in this regard. We also reconsidered our use of 
weighted-average ratios for overhead, SG&A, and profit, and amended our 
calculations using simple averages. Finally, in accordance with our 
voluntary request for remand, we removed ``trade sales'' (or ``traded 
goods'') from the denominator in calculating the overhead ratio.
    As a result of the remand determination, Jilin Pharmaceutical 
(``Jilin'') will be excluded from the antidumping duty order on bulk 
aspirin from the People's Republic of China

[[Page 75209]]

(``PRC'') because its antidumping rate was de minimis (1.27 
percent).\1\ The antidumping duty rate for Shandong Xinhua 
Pharmaceutical Factory, Ltd. (``Shandong'') was decreased from 16.51 to 
6.42 percent. The PRC-wide rate was unchanged from the Final 
Determination. As there is now a final and conclusive court decision in 
this action, we are amending our Final Determination.
---------------------------------------------------------------------------

    \1\ In accordance with the Department's changed circumstances 
review (see Bulk Aspirin from the People's Republic of China: Final 
Results of Changed Circumstances Review, 67 FR 65537 (October 25, 
2002)), Jilin Henghe Pharmaceutical Co. is the successor-in-interest 
to Jilin Pharmaceutical Co., and as such Jilin Henghe Pharmaceutical 
Co. will be excluded from the antidumping duty order on bulk aspirin 
from the PRC.

---------------------------------------------------------------------------
EFFECTIVE DATE: December 30, 2003.

FOR FURTHER INFORMATION CONTACT: Blanche Ziv or Julie Santoboni, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-4207, or (202) 482-4194, respectively.

SUPPLEMENTARY INFORMATION:

Background

    Following publication of the Final Determination, Rhodia, Inc., the 
petitioner in this case, and the respondents, Jilin and Shandong, filed 
a lawsuit with the CIT challenging the Department's Final 
Determination. Rhodia challenged the Department's use of import data 
rather than domestic data as a surrogate value for the aspirin input, 
phenol. Rhodia also challenged the Department's normal value 
calculation for the respondent Shandong because the Department excluded 
purchased salicylic acid where it had determined this input was not 
used in the production of bulk aspirin for export. Jilin and Shandong 
challenged the Department's application of the factory overhead ratio 
and the Department's use of a weighted average to calculate surrogate 
factory overhead, selling general and administrative expenses, and 
profit ratios. Also, the respondents challenged, and the Department 
voluntarily requested remand on, the issue of including traded goods in 
the denominator of the factory overhead ratio.
    On November 30, 2001, the CIT affirmed the Department's Final 
Determination with respect to the use of import price to value the 
input phenol and the calculation of Shandong's normal value excluding 
purchased salicylic acid. See Rhodia, Inc. v. United States, 185 F. 
Supp. 2d 1343 (CIT 2001) (``Rhodia I''). The Court remanded the above-
referenced proceeding to the Department for reconsideration of the 
overhead calculation methodology applied in the Final Determination. In 
the underlying investigation, the Department was required to develop 
values for factory overhead, SG&A, and profit relying on ``surrogate'' 
data from Indian producers of comparable merchandise. See section 
773(c) of the Act. Regarding factory overhead, the Department used 
information from three Indian producers: Andhra Sugars, Alta 
Laboratories, and Gujarat Organics, Ltd. In the Final Determination, 
the Department found that the PRC producers of bulk aspirin were more 
fully integrated than the Indian producers. Therefore, the Department 
reasoned, the PRC producers would have a higher overhead-to-raw 
material ratio than the surrogate Indian producers. To account for this 
in computing normal value, the Department applied the overhead ratio 
calculated from the Indian producers' data twice, once to reflect the 
overhead incurred in producing the inputs for aspirin, and again to 
reflect the overhead incurred in producing aspirin from those inputs.
    The Court pointed to the lack of evidence or explanation regarding 
the Department's position that integrated producers would experience 
higher overhead ratios than non-integrated producers. Additionally, the 
Court questioned the Department's conclusion that the Indian producers 
were less integrated than the PRC producers. Specifically, the Court 
found that the Department could not reasonably infer this from the 
evidence cited in the Issues and Decision Memorandum. Therefore, the 
Court remanded this issue to the Department and asked the agency to 
identify the facts in the record that support its Final Determination. 
Rhodia I, 185 F. Supp. 2d at 1348-1349 (CIT 2001).
    The second issue remanded to the Department related to the 
calculation of the ratios for overhead, SG&A, and profit. In the Final 
Determination, the Department computed a weighted average of the 
overhead, SG&A, and profit of the three Indian surrogate producers. 
However, citing to the agency's usual practice of using simple averages 
in these situations, the Court ruled that the Department had provided 
no explanation for departing from this practice. Thus, the Court 
directed the Department to explain its reasoning for computing weighted 
averages in this case. Rhodia I, 185 F. Supp. 2d at 1349-1351 (CIT 
2001).
    Finally, the Department sought, and the Court granted, a voluntary 
remand to correct the calculation of the overhead ratio by removing 
traded goods from the denominator. Rhodia I, 185 F. Supp. 2d at 1357 
(CIT 2001).
    To assist it in complying with the Court's instructions, the 
Department asked the parties to identify information on the record of 
the proceeding regarding the extent of integration of Indian producers 
of comparable merchandise. See the December 13, 2001, letter to Rhodia, 
Inc., Jilin and Shandong. Responses were received from the three 
parties on January 15, 2002, and rebuttals were received on January 22, 
2002.
    The Draft Redetermination Pursuant to Court Remand (``Draft 
Results'') was released to the parties on February 4, 2002. In its 
Draft Results, the Department reviewed the record evidence regarding 
the extent to which the Indian surrogate producers are integrated and 
concluded that the evidence did not support the Final Determination in 
this regard. We also reconsidered our use of weighted-average ratios 
for overhead, SG&A, and profit, and amended our calculations using 
simple averages. Finally, in accordance with our voluntary request for 
remand, we removed ``trade sales'' (or ``traded goods'') from the 
denominator in calculating the overhead ratio.
    Comments on the Draft Results were received from Rhodia, Inc. and 
Shandong on February 11, 2002, and rebuttal comments were received from 
the petitioner and Jilin on February 14, 2002. On March 29, 2002, the 
Department responded to the Court's Order of Remand by filing its Final 
Results of Redetermination pursuant to the Court remand (``Final 
Results of Redetermination''). The Department's Final Results of 
Redetermination were identical to the Draft Results.
    The CIT affirmed the Department's Final Results of Redetermination 
on September 9, 2002. See Rhodia II, 240 F. Supp. 2d 1247 (CIT 2002). 
On October 14, 2003, the CIT's decision was affirmed by the Federal 
Circuit. Rhodia II, 240 F. Supp. 2d 1247 (CIT 2002) aff'd mem. Ct. No. 
03-1097 (October 14, 2003); 2003 U.S. App. LEXIS 21424. We have 
recalculated the dumping margin for the respondents based upon the 
changes set forth above.

Amendment to the Final Determination

    Because there is now a final and conclusive decision in the court 
proceeding, effective as of the publication date of this notice, we are 
amending the Final Determination and

[[Page 75210]]

establishing the following revised weighted-average dumping margins:

------------------------------------------------------------------------
                                        Amended  final determination  10/
                Company                          01/98-03/31/99
------------------------------------------------------------------------
Jilin Henghe Pharmaceutical Co........  1.27 percent (de minimis).
Shandong Xinhua Pharmaceutical Co.,     6.42 percent.
 Ltd.
------------------------------------------------------------------------

    The ``PRC-wide Rate'' was not affected by the Final Results of 
Redetermination and remains at 144.02 percent as determined in the LTFV 
Final Determination.
    The Department will issue appraisement instructions directly to 
U.S. Customs and Border Protection (``CBP''). The Department will 
instruct CBP to liquidate entries from Jilin, without regard to 
antidumping duties, because Jilin is excluded from the antidumping duty 
order, effective September 30, 2002, the date on which the Department 
published a notice of the Court decision (see Bulk Aspirin from the 
People's Republic of China: Notice of Court Decision and Suspension of 
Liquidation, 67 FR 61315 (September 30, 2002)).
    This notice is issued and published in accordance with section 
751(a)(1) of the Act.

    Dated: December 19, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-32071 Filed 12-29-03; 8:45 am]
BILLING CODE 3510-DS-P