[Federal Register Volume 73, Number 192 (Thursday, October 2, 2008)]
[Notices]
[Pages 57322-57323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23269]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-851]


Certain Preserved Mushrooms From the People's Republic of China: 
Notice of Court Decision Not in Harmony With Final Results of 
Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On September 16, 2008, 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, Slip Op. 07-85 (May 24, 2007) (Gerber v. United 
States II). See Results of Redetermination Pursuant to Remand, dated 
September 18, 2007 (found at http://ia.ita.doc.gov/remands); and 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 
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 the People's 
Republic of China (PRC) covering the period of review (POR) of February 
1, 2001, through January 31, 2002. See Notice of Final Results and 
Partial Rescission of the New Shipper Review and Final Results and 
Partial Rescission of the Third Antidumping Duty Administrative Review 
of Certain Preserved Mushrooms From the People's Republic of China, 68 
FR 41304 (July 11, 2003) (Final Results).

DATES: Effective Date: September 26, 2008.

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.,

[[Page 57323]]

Washington, DC 20230; telephone (202) 482-1766.

SUPPLEMENTARY INFORMATION:

Background

    On July 3, 2003, the Department issued its final results in the 
antidumping duty administrative review of certain preserved mushrooms 
from the PRC covering the POR of February 1, 2001, through January 31, 
2002. See Final Results. In the Final Results, the Department applied 
total adverse facts available (AFA) in calculating the cash deposit and 
assessment rates for respondents Gerber Food (Yunnan) Co., Ltd. 
(Gerber) and Green Fresh (Zhangzhou) Co., Ltd. (Green Fresh). See Final 
Results, 68 FR at 41306. The Department found that Gerber and Green 
Fresh were involved in a business arrangement during the POR that 
resulted in the circumvention of the proper payment of cash deposits on 
certain POR entries of subject merchandise made by Gerber. Id. As total 
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 total AFA to determine their cash deposit and assessment rates for 
the POR in the Final Results.
    In Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., 
Ltd. v. United States, Slip Op. 05-84 (July 18, 2005) (Gerber v. United 
States I), the CIT remanded the Final Results, holding that the 
Department's application of the ``facts otherwise available'' and 
``adverse inference'' provisions was not supported by substantial 
record evidence and was otherwise not in accordance with law. In Gerber 
v. United States II, the CIT held that the Department's Redetermination 
Pursuant to Court Remand complied with the remand order in Gerber v. 
United States I in some respects but not others, and remanded the 
redetermination to the Department for further reconsideration.
    On September 18, 2007, the Department issued its final results of 
redetermination pursuant to Gerber v. United States II. The remand 
redetermination explained that, in accordance with the CIT's 
instructions, the Department: (1) Recalculated the assessment rate for 
Gerber using a rate other than the PRC-wide rate as partial AFA with 
respect to certain POR sales of subject merchandise produced by Gerber 
for which the customs entry documentation identified Green Fresh as the 
exporter; 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. The Department's redetermination resulted in changes to the 
Final Results weighted-average margins for Gerber from 198.63 percent 
to 92.11 percent, and for Green Fresh from 84.26 percent to 31.55 
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 Gerber v. United States III on September 16, 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 Gerber 
and Green Fresh based on the revised assessment rates calculated by the 
Department.
    This notice is issued and published in accordance with section 
516A(c)(1) of the Act.

    Dated: September 26, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
 [FR Doc. E8-23269 Filed 10-1-08; 8:45 am]
BILLING CODE 3510-DS-P