[Federal Register Volume 73, Number 230 (Friday, November 28, 2008)]
[Notices]
[Pages 72448-72449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-28321]


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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 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, 
whereby the Department, in accordance with the CIT's instructions: (1) 
recalculated the assessment rate for Gerber Food (Yunnan) Co., Ltd. 
(Gerber) using a rate other than the PRC-wide rate as partial adverse 
facts available (AFA) with respect to certain period of review (POR) 
sales of subject merchandise produced by Gerber for which the customs 
entry documentation identified Green Fresh (Zhangzhou) Co., Ltd. (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. As there is now a final and conclusive court 
decision in this case,

[[Page 72449]]

the Department is amending the final results of the 2001-2002 
administrative review of certain preserved mushrooms from the People's 
Republic of China (PRC).

EFFECTIVE DATE: November 28, 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, 
Washington, DC, 20230; telephone (202) 482-1766.

SUPPLEMENTARY INFORMATION:

Background

    On July 11, 2003, the Department published its final results of 
administrative review, covering the period of review from February 1, 
2001, through January 31, 2002. See Certain Preserved Mushrooms From 
the People's Republic of China: Final Results and Partial Rescission of 
the New Shipper Review and Final Results and Partial Rescission of the 
Third Antidumping Duty Administrative Review, 68 FR 41304 (July 11, 
2003) (Final Results), and accompanying Issues and Decision Memorandum. 
In the Final Results, the Department applied total AFA in calculating 
the cash deposit and assessment rates for respondents Gerber and Green 
Fresh, pursuant to sections 776(a) and (b) of the Tariff Act of 1930, 
as amended (the Act). See Final Results, 68 FR at 41306, and 
accompanying Issues and Decision Memorandum at Comment 1. 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 before the CIT.
    On July 18, 2005, the CIT concluded that the Department exceeded 
its statutory authority by rejecting all data relevant to antidumping 
assessment rates submitted by the two companies. See Gerber Food 
(Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United 
States, Slip Op. 05-84 (July 18, 2005). Therefore, the CIT remanded 
this case to the Department.
    On November 30, 2005, the Department issued its Results of 
Redetermination Pursuant to Court Remand (First Remand 
Redetermination). In the First Remand Redetermination, the Department 
modified its original final results margin calculations for both 
companies by applying partial, instead of total, AFA.
    On May 24, 2007, the CIT issued the Department a second remand. See 
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). In its decision, the CIT agreed with the Department that both 
Gerber and Green Fresh had failed to cooperate to the best of their 
abilities in the above-referenced review. With regard to Gerber, the 
CIT affirmed that the Department was justified in resorting to AFA for 
the 24 sales for which Gerber used Green Fresh invoices. However, the 
CIT instructed the Department to use a different AFA rate for those 24 
sales for purposes of calculating cash deposit and assessment rates for 
Gerber. With regard to Green Fresh, the CIT instructed the Department 
to revisit its basis for resorting to partial AFA because the sales at 
issue were made by Gerber.
    In accordance with the CIT's instructions, the Department issued 
its Results of Redetermination Pursuant to Court Remand on September 
18, 2007. See Results of Redetermination Pursuant to Remand, dated 
September 18, 2007 (available at http://ia.ita.doc.gov/remands) (Second 
Remand Redetermination). In the Second Remand Redetermination, the 
Department recalculated the assessment rate for Gerber by applying 
partial AFA to the 24 sales made by Gerber during the POR which were 
exported to the United States using Green Fresh's invoices. The 
Department also recalculated the assessment rate for Green Fresh 
exclusive of the same 24 transactions in accordance with the CIT's 
instructions.
    On September 16, 2008, the CIT issued its decision, affirming the 
Department's Second Remand Redetermination. 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 III); and 
Certain Preserved Mushrooms From the People's Republic of China: Notice 
of Court Decision Not in Harmony with Final Results of Administrative 
Review, 73 FR 57322 (October 2, 2008).
    The time period for appealing the CIT's decision has expired and no 
party has 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 of the 2001-2002 administrative review.

Amended Final Results of Review

    We are therefore amending the final results of the 2001-2002 
administrative review of the antidumping duty order on certain 
preserved mushrooms from the PRC to abide by the CIT's decision with 
respect to the cash deposit and assessment rates applicable to Gerber 
and Green Fresh. Specifically, 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.

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 19 CFR 351.106(c), we will instruct CBP to 
assess antidumping duties on all appropriate entries for both companies 
if any importer-specific assessment rate calculated in the final 
results of this review is above de minimis (i.e., is not less than 0.50 
percent ad valorem). 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 
516A(e), 751(a)(1) and 777(i)(1) of the Act.

    Dated: November 20, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-28321 Filed 11-26-08; 8:45 am]
BILLING CODE 3510-DS-S