E8-23269. Certain Preserved Mushrooms 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 September 16, 2008, the United States Court of International Trade (CIT) sustained the Department of Commerce's (the Department's) results of redetermination pursuant to the CIT's remand in Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 07-85 (May 24, 2007) (Gerber v. United States II). See Results of Redetermination Pursuant to Remand, dated September 18, 2007 (found at http://ia.ita.doc.gov/​remands); and Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 08-97 (September 16, 2008) (Gerber v. United States III). 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 the final judgment in this case is not in harmony with the Department's final results of the administrative review of the antidumping duty order on certain preserved mushrooms from the People's Republic of China (PRC) covering the period of review (POR) of February 1, 2001, through January 31, 2002. See Notice of Final Results and Partial Rescission of the New Shipper Review and Final Results and Partial Rescission of the Third Antidumping Duty Administrative Review of Certain Preserved Mushrooms From the People's Republic of China, 68 FR 41304 (July 11, 2003) (Final Results).

DATES:

Effective Date: September 26, 2008.

FOR FURTHER INFORMATION CONTACT:

Brian Smith, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 3, 2003, the Department issued its final results in the antidumping duty administrative review of certain preserved mushrooms from the PRC covering the POR of February 1, 2001, through January 31, 2002. See Final Results. In the Final Results, the Department applied total adverse facts available (AFA) in calculating the cash deposit and assessment rates for respondents Gerber Food (Yunnan) Co., Ltd. (Gerber) and Green Fresh (Zhangzhou) Co., Ltd. (Green Fresh). See Final Results, 68 FR at 41306. The Department found that Gerber and Green Fresh were involved in a business arrangement during the POR that resulted in the circumvention of the proper payment of cash deposits on certain POR entries of subject merchandise made by Gerber. Id. As total AFA, the Department applied the PRC-wide rate of 198.63 percent to both companies. Gerber and Green Fresh challenged the Department's resorting to total AFA to determine their cash deposit and assessment rates for the POR in the Final Results.

In Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 05-84 (July 18, 2005) (Gerber v. United States I), the CIT remanded the Final Results, holding that the Department's application of the “facts otherwise available” and “adverse inference” provisions was not supported by substantial record evidence and was otherwise not in accordance with law. In Gerber v. United States II, the CIT held that the Department's Redetermination Pursuant to Court Remand complied with the remand order in Gerber v. United States I in some respects but not others, and remanded the redetermination to the Department for further reconsideration.

On September 18, 2007, the Department issued its final results of redetermination pursuant to Gerber v. United States II. The remand redetermination explained that, in accordance with the CIT's instructions, the Department: (1) Recalculated the assessment rate for Gerber using a rate other than the PRC-wide rate as partial AFA with respect to certain POR sales of subject merchandise produced by Gerber for which the customs entry documentation identified Green Fresh as the exporter; and (2) recalculated the assessment rate for Green Fresh based on the data it reported, exclusive of the aforementioned transactions, without resorting to facts available or adverse inferences. The Department's redetermination resulted in changes to the Final Results weighted-average margins for Gerber from 198.63 percent to 92.11 percent, and for Green Fresh from 84.26 percent to 31.55 percent.

Timken Notice

In its decision in Timken, 893 F.2d at 341, the CAFC held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the 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 Gerber v. United States III on September 16, 2008, constitutes a final decision of that 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 instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from Gerber and Green Fresh 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: September 26, 2008.

Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.