2010-7758. Certain Preserved Mushrooms from the People's Republic of China: Amended Final Results Pursuant to Final Court Decision

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On January 5, 2010, 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, Court No. 04-00454 (May 5, 2009) (Gerber v. United States Remand Order). This matter arose from a challenge to the Department's final results of administrative review of the antidumping duty order on certain preserved mushrooms from the PRC for the period February 1, 2002, through January 31, 2003. In the remand redetermination, the Department: (1) recalculated the assessment rate for Gerber Food (Yunnan) Co., Ltd. using a rate other than the PRC-wide rate as partial adverse facts available (AFA) with respect to only those sales of subject merchandise made by Gerber during the period of review (POR) which Gerber exported to the United States using the invoices of Green Fresh (Zhangzhou) Co., Ltd. (Green Fresh); 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. 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 the People's Republic of China (PRC).

EFFECTIVE DATE:

April 6, 2010.

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 September 9, 2004, the Department published its final results in the antidumping duty administrative review of certain preserved mushrooms from the PRC covering the POR of February 1, 2002, through January 31, 2003 (fourth administrative review). See Certain Preserved Mushrooms from the People's Republic of China: Final Results of Sixth Antidumping Duty New Shipper Review and Final Results and Partial Rescission of the Fourth Antidumping Duty Administrative Review, 69 FR 54635 (September 9, 2004) (Final Results).

In the Final Results, the Department applied total adverse facts available (AFA) in calculating the cash deposit and assessment rates for respondent Gerber, and partial AFA in calculating the cash deposit and assessment rates for respondent Green Fresh, pursuant to sections 776(a) and (b) of the Tariff Act of 1930, as amended (the Act). See Final Results, 69 FR at 54637-54638. The Department found that Gerber and Green Fresh were involved in a business arrangement/scheme, commencing during the period of the prior (third) administrative review, that resulted in the circumvention of the proper payment of cash deposits on certain POR entries of subject merchandise made by Gerber. As either total or partial 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 the application of AFA to determine their cash deposit and assessment rates in the Final Results before the CIT.

In light of the CIT's analysis in its decisions in the litigation covering the third administrative review (see 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 I), which concerned the same parties and many of the same issues as those in the fourth administrative review, and the factual similarity between the administrative records of the third and fourth administrative reviews, the Government of the United States requested a voluntary remand, which the CIT granted on May 5, 2009. See Gerber v. United States Remand Order. Pursuant to this remand order and consistent with the Court's analysis in Gerber v. United States I, the Department issued its final results of redetermination on July 24, 2009. See Redetermination Pursuant to Court Remand, dated July 24, 2009 (Remand Redetermination) (found at http://ia.ita.doc.gov/​remands). In this redetermination, the Department recalculated the margin for Gerber using a rate other than the PRC-wide rate as partial AFA with respect to only those sales of subject merchandise made by Gerber during the POR which were exported to the United States using the invoices of Green Fresh. The Department also recalculated the margin for Green Fresh exclusive of the above-mentioned transactions and the application of AFA. See Remand Determination at 1, and 4-7. The CIT affirmed this redetermination on January 5, 2010. See Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 10-2 (January 5, 2010) at 3.

On January 25, 2010, consistent with the decision of the United States Court of Appeals for the Federal Circuit in Timken Co. v. United States, 893 F. 2d 337 (Fed. Cir. 1990), the Department notified the public that the CIT's decision was not in harmony with the Department's final results. See Certain Preserved Mushrooms from the People's Republic of China: Notice of Court Decision Not in Harmony with Final Results of Administrative Review, 75 FR 3896 (January 25, 2010). No party appealed the CIT's decision. Because there is now a final and conclusive court decision in this case, the Department is amending the Final Results.

Amended Final Results of Review

As the litigation in this case has concluded, we are amending the Final Results to reflect the results of our remand redetermination. Specifically, the Department's redetermination resulted in changes to the Final Results weighted-average margins for Gerber from 198.63 percent to 22.84 percent, and for Green Fresh from 42.90 percent to 15.83 percent.

Assessment

The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on POR entries of the subject merchandise from Gerber and Green Fresh based on the revised assessment rates calculated by the Department. 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: March 29, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.