Honey From the People's Republic of China: Notice of Court Decision Not in Harmony with Final Results of Administrative Review, 75393 [E8-29486]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Notices]
[Page 75393]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29486]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-570-863)


Honey From the People's Republic of China: Notice of Court 
Decision Not in Harmony with Final Results of Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On November 18, 2008, the United States Court of International 
Trade (``CIT'') sustained the remand redetermination issued by the 
Department of Commerce (``Department'') pursuant to the CIT's remand 
order in the final results of the administrative review of the 
antidumping duty order on honey from the People's Republic of China. 
See Shanghai Eswell Enterprise Co., Ltd., et. al. v. United States, 
Court No. 05-00439, Slip Op. 08-124 (CIT November 18, 2008) (``Eswell 
II''). This case arose from the Department's final results for the 
period of review (``POR'') December 1, 2002, through November 30, 2003. 
See Honey from the People's Republic of China: Final Results and Final 
Rescission, In Part, of Antidumping Duty Administrative Review, 70 FR 
38873 (July 6, 2005) (``Final Results''). Consistent with the decision 
of the United States Court of Appeals for the Federal Circuit 
(``CAFC'') in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (``Timken''), the Department is notifying the public that Eswell 
II is not in harmony with the Department's Final Results.

EFFECTIVE DATE: December 11, 2008.

FOR FURTHER INFORMATION CONTACT: Paul Walker, AD/CVD Operations, Office 
9, Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Ave., NW, 
Washington, DC 20230; telephone: (202) 482-0413.

SUPPLEMENTARY INFORMATION: On September 13, 2007, the CIT remanded the 
following issues to the Department for further administrative 
proceedings consistent with its opinion and Order: 1) the calculation 
of the raw honey surrogate value; 2) the calculation of surrogate 
financial ratios with respect to (a) the treatment of honey sales 
commissions and (b) the treatment of jars, corks, and honey machine 
purchases; and 3) the use of export price sales for Jinfu Trading Co., 
Ltd.'s (``Jinfu'') U.S. sales. See Shanghai Eswell Enterprise, Co., 
Ltd., et. al. v. United States, Slip Op. 07-138 (CIT September 13, 
2007) (``Eswell I''), at 17-18. Pursuant to the CIT's remand 
instructions, we: 1) addressed record evidence which indicated a 
decline in export prices during the second half of the POR and 
explained why we have refrained from considering these data in 
calculating a surrogate value for raw honey; 2) (a) discussed evidence 
which reflects an exact correlation between the selling commission 
expenses incurred by respondents, and those incurred by the surrogate 
financial company and further explained our decision in the Final 
Results that the record evidence was insufficient to permit a 
circumstances of sale adjustment, as well as (b) revised our financial 
ratio calculations to include reported expenses for jars and corks as 
direct materials used for producing finished honey and provided further 
explanation regarding our finding that honey machine purchases do not 
constitute direct expenses; and 3) addressed the CIT's findings with 
respect to operational control, and explained our continued finding, in 
accordance with our decision in the Final Results of Redetermination 
Pursuant to Court Remand: Jinfu Trading Co., Ltd. v. United States, 
Court No. 04-00597, Slip Op. 07-95 (CIT June 13, 2007).
    On January 15, 2008, the Department released the Draft Results of 
Redetermination Pursuant to Court Remand to interested parties. On 
January 22 and January 24, 2008, we received comments on the draft 
results of redetermination from interested parties. On February 11, 
2008, the Department filed its final results of redetermination 
pursuant to Eswell I with the CIT. See Final Results of Redetermination 
Pursuant to Court Remand: Shanghai Eswell Enterprise Co., Ltd. v. 
United States, Court No. 06-00430 (February 11, 2008). In responding to 
the CIT's questions and reassessing the record evidence, we determined 
it was appropriate to revise our financial ratio calculations to 
include, as direct materials used to producing finished honey, expenses 
for jars and corks. Thus, the Department revised, as appropriate, the 
surrogate financial ratios of the margin calculations for Eswell 
Enterprise Co., Ltd., Jinfu and Zhejiang Native Produce and Animal By-
Products Import & Export Group Corp. On November 18, 2008, the CIT 
sustained all aspects of the redetermination made by the Department 
pursuant to the CIT's remand of the Final Results.
    In Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 
516A(e) of the Tariff Act of 1930, as amended (``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 decision in 
Eswell II on November 18, 2008, constitutes a decision of the court 
that is not in harmony with the Department's Final Results. 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 ruling is not appealed or, if appealed, upheld 
by the CAFC, the Department will publish an amended final results and 
instruct U.S. Customs and Border Protection to revise the cash deposit 
rates covering the subject merchandise and to assess antidumping duties 
on entries of the subject merchandise during the POR based on the 
revised assessment rates calculated by the Department.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: December 5, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-29486 Filed 12-10-08; 8:45 am]
BILLING CODE 3510-DS-S