[Federal Register Volume 75, Number 65 (Tuesday, April 6, 2010)]
[Notices]
[Pages 17376-17377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7758]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-851]
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 (202) 482-1766.
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
[[Page 17377]]
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.
[FR Doc. 2010-7758 Filed 4-5-10; 8:45 am]
BILLING CODE 3510-DS-S