E8-4239. Certain Preserved Mushrooms from India: Notice of Amended Final Results Pursuant to Final Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On November 20, 2007, the Court of Appeals for the Federal Circuit (CAFC) reversed the decision of the Court of International Trade (CIT) which upheld the Department of Commerce's (the Department) determination in the 2002-2003 administrative review of certain preserved mushrooms from India to conduct a duty absorption inquiry under section 751(a)(4) of the Tariff Act of 1930, as amended (the Act), when the producer/exporter acts as its own importer of record. See Agro Dutch Industries Ltd. v. United States, Slip Op. 2007-1011 (Fed. Cir. November 20, 2007) (CAFC Decision). Pursuant to the CAFC's decision and mandate, on January 24, 2008, the CIT entered final judgment and ordered the Department to annul all duty absorption findings with respect to Agro Dutch Industries, Ltd. (Agro Dutch). As there is now a final and conclusive court decision in this case, the Department is amending the final results of the 2002-2003 administrative review of certain preserved mushrooms from India.

EFFECTIVE DATE:

March 5, 2008.

FOR FURTHER INFORMATION CONTACT:

David Goldberger or Katherine Johnson, 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] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 20, 2004, the Department published its final results of administrative review, covering the period of review from February 1, 2002, through January 31, 2003. See Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 69 FR 51630, 51631 (August 20, 2004) (Final Results), and accompanying Issues and Decision Memorandum at Comment 5. In the Final Results, the Department determined that antidumping duties had been absorbed by the respondents in the review, including Agro Dutch, on those sales for which the respondent was the importer of record, in accordance with section 751(a)(4) of the Act. In October 2004, Agro Dutch contested the Department=s duty absorption finding, along with several other findings made in the Final Results, before the CIT. The CIT issued its decision, affirming the Department's finding of duty absorption, in March 2006. See Agro Dutch Industries., Ltd. v. United States, Slip Op. 2006-40 (CIT March 28, 2006).

Agro Dutch appealed that decision to the CAFC. On November 20, 2007, the CAFC reversed the CIT's decision on the duty absorption issue. The CAFC held that the Department was not empowered to conduct a duty absorption inquiry under section 751(a)(4) of the Act with respect to the sales made by Agro Dutch on which it acted as the importer of record because such sales were not made by Agro Dutch through an importer with whom it is affiliated. The CAFC held that because the term “affiliated” is defined in the statute, the reference in section 751(a)(4) of the Act that subject merchandise be sold “through an importer who is affiliated” with the producer/exporter is unambiguous -- i.e., the statutory definition of “affiliated persons” requires the presence of two or more entities and, therefore, Agro Dutch cannot be “affiliated” with itself. Pursuant to the CAFC's decision and mandate, on January 24, 2008, the CIT entered final judgment and ordered the Department to annul all duty absorption findings and conclusions with respect to Agro Dutch in the Final Results.

Because there is now a final and conclusive court decision in this case, the Department is amending the final results of the 2002-2003 administrative review.

Amended Final Results of Review

We are amending the final results of the 2002-2003 administrative review on the antidumping duty order on certain preserved mushrooms from India to annul our duty absorption finding and conclusion with respect to Agro Dutch. Specifically, we annul our finding that Agro Dutch absorbed antidumping duties during the period of review on those sales for which it was the importer of record. This amendment does not affect the weighted-average margin calculated for Agro Dutch for the period of review.

Assessment

The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries for this review. We intend to issue the assessment instructions to CBP 15 days after the date of publication of these amended final results of review.

This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: February 28, 2008.

Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.