[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