2010-8164. 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 May 8, 2008, the United States Court of International Trade (CIT) sustained the results of redetermination made by the Department of Commerce (the Department) pursuant to the CIT's remand in Agro Dutch Industries Limited v. United States, Slip Op. 07-185 (CIT December 26, 2007) (Agro Dutch II). See Agro Dutch Industries Limited v. United States, Slip Op. 08-50 (CIT May 8, 2008) (Agro Dutch III). Subsequent to the CIT's judgment upholding Commerce's remand redetermination, in October 2008, the CIT exercised its equitable power to order reliquidation of some of Agro Dutch's entries. See Agro Dutch Industries Limited v. United States, Slip Op. 08-110 (CIT October 17, 2008) (Agro Dutch IV). The Government appealed the CIT's decision in Agro Dutch IV to the United States Court of Appeals for the Federal Circuit (CAFC), and on December 15, 2009, the CAFC affirmed the CIT's decision. See Agro Dutch Industries Limited v. United States, Slip Op. 2009-1127 (Fed.Cir. December 15, 2009) (Agro Dutch V). As there is now a final and conclusive court decision in this case, the Department is amending the final results of the 2000-2001 administrative review of certain preserved mushrooms from India.

EFFECTIVE DATE:

April 9, 2010.

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 July 12, 2002, the Department issued its final results in the antidumping duty administrative review of certain preserved mushrooms from India covering the period of review of February 1, 2000, through January 31, 2001. See Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 67 FR 46172 (July 12, 2002), and accompanying Issues and Decisions Memorandum (Final Results). Agro Dutch challenged certain aspects of the Department's Final Results: (1) that the use of partial facts available and adverse inferences for certain of its sales was improper; (2) that the methodology used to determine Agro Dutch's constructed value was in error; (3) that the calculation of its imputed credit expenses was in error; and (4) that its entries were improperly and prematurely liquidated.

In Agro Dutch Industries Limited v. United States, Slip Op. 07-25 (CIT February 16, 2007) (Agro Dutch I), the CIT upheld the Department's determinations on issues (2) and (3) regarding constructive value and imputed credit expense methodologies. However, with respect to the first issue, that the use of partial facts available and adverse inferences for certain of Agro Dutch's sales was improper, the CIT instructed the Department on remand to revisit its determination.

On March 3, 2007, the Department filed its remand redetermination and further explained its use and application of facts available in this review. In Agro Dutch II, the CIT did not accept the Department's explanation and again remanded the case to the Department.

On April 3, 2008, the Department issued its final results of redetermination pursuant to Agro Dutch II. The remand redetermination explained that, in accordance with the CIT's instructions, the Department analyzed the information on the record and made its determination for certain Agro Dutch sales on the basis of facts available without imputing an adverse inference. The Department's redetermination resulted in a change to the Final Results weighted-average margin for Agro Dutch from 27.80 percent to 1.54 percent. The CIT sustained the Department's remand redetermination on May 8, 2008. See Agro Dutch III. On May 23, 2008, consistent with the decision 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 India: Notice of Court Decision Not in Harmony with Final Results of Administrative Review, 73 FR 30051 (May 23, 2008).

Subsequent to the CIT's judgment upholding Commerce's remand redetermination, in October 2008, the CIT exercised its equitable power to order reliquidation of some of Agro Dutch's entries. Specifically, the CIT amended the effective date of the injunction retroactively to the date the CIT granted the injunction (i.e., October 1, 2002) and ordered that Agro Dutch's entries of subject merchandise that were liquidated on or after October 1, 2002, pursuant to the Department's Final Results, be reliquidated in accordance with the CIT's judgment in Agro Dutch III. See Agro Dutch IV.

The Government appealed the CIT's decision in Agro Dutch IV to the CAFC and on December 15, 2009, the CAFC affirmed the CIT's decision. See Agro Dutch V. Because there is now a final and conclusive court decision in this case, the Department is amending the final results of the 2000-2001 administrative review.

Amended Final Results of Review

We are amending the final results of the 2000-2001 administrative review of the antidumping duty order on certain preserved mushrooms from India to reflect the results of our remand redetermination. Specifically, the Department's redetermination resulted in changes to the Final Results weighted-average margin for Agro Dutch from 27.80 percent to 1.54 percent.

Assessment

The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries for this review in accordance with these amended final results of review. Additionally, pursuant to the CIT's decision in Agro Dutch IV, as affirmed by the CAFC, the Department will instruct CBP to reliquidate, in accordance with these amended final results of review, Agro Dutch's entries of subject merchandise that were liquidated on or after October 1, 2002, pursuant to the Final Results. 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: April 2, 2010.

John M. Andersen,

Acting Deputy Assistant Secretary for Import Administration.