[Federal Register Volume 73, Number 101 (Friday, May 23, 2008)]
[Notices]
[Pages 30051-30052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11622]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-533-813)


Certain Preserved Mushrooms from India: Notice of Court Decision 
Not in Harmony with Final Results of Administrative Review

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 (December 26, 
2007) (Agro Dutch II). See Agro Dutch Industries Limited v. United 
States, Slip Op. 08-50 (May 8, 2008) (Agro Dutch 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 India covering the period of review 
(POR) 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).

EFFECTIVE DATE: May 23, 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 (202) 482-
4136 or (202) 482-4929, 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 POR of February 1, 2000, through January 31, 
2001. See Final Results. Agro Dutch challenged three 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; and (3) that the calculation of its imputed credit expenses was 
in error.
    In Agro Dutch Industries Limited v. United States, Slip Op. 07-25 
(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 that 
the use of partial facts available and adverse inferences was warranted 
for the transactions where the Department applied them.
    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, instructing 
the Department to either reopen the proceeding for the limited purpose 
of obtaining satisfactory answers to the Department's questions that 
generated the Department's use of partial facts available, or make a 
determination on the basis of facts available without imputing an 
adverse inference on the record evidence obtained during the review.
    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

[[Page 30052]]

available without imputing an adverse inference. The Department's 
redetermination resulted in a change from the Final Results weighted-
average margin for Agro Dutch from 27.80 percent to 1.54 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 Agro Dutch III on May 8, 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 Agro 
Dutch based on the revised importer-specific assessment rates 
calculated by the Department.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: May 19, 2008.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. E8-11622 Filed 5-22-08; 8:45 am]
BILLING CODE 3510-DS-S