[Federal Register Volume 79, Number 178 (Monday, September 15, 2014)]
[Notices]
[Pages 54961-54962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21990]


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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 and Notice 
of Amended Final Results of the Antidumping Duty Administrative Review; 
2009-2010

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.
SUMMARY: On August 28, 2014, the United States Court of International 
Trade (the Court) issued final judgment in Xiamen International Trade 
and Industrial Co., Ltd. et al. v. United States, Court No. 11-00411, 
sustaining the Department of Commerce's (the Department's) final 
results of redetermination pursuant to remand.\1\ In the Remand 
Results, the Department recalculated the weighted-average dumping 
margin for Xiamen International Trade and Industrial Co., Ltd. (XITIC) 
using a revised surrogate value for lime and a revised calculation of 
labor and financial ratios.\2\ The Department also recalculated the 
dumping margin for two respondents not selected for individual 
examination--Zhejiang Iceman Group Co., Ltd. (Iceman Group) and Fujian 
Golden Banyan Foodstuffs Industrial Co., Ltd. (Golden Banyan) because 
their dumping margin was based in part upon XITIC's dumping margin, 
which changed on remand.\3\ Consistent with the decision of the United 
States Court of Appeals for the Federal Circuit (Federal Circuit) in 
Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), as 
clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades), 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 antidumping duty 
administrative review of certain preserved mushrooms from the People's 
Republic of China (PRC) covering the period February 1, 2009, through 
January 31, 2010, and is amending the amended final results with 
respect to the weighted-average dumping margins assigned to XITIC, 
Iceman Group, and Golden Banyan.\4\
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    \1\ See Final Results of Redetermination Pursuant to Court 
Remand, Certain Preserved Mushrooms from the People's Republic of 
China, Xiamen Int'l Trade & Indus. Co., Ltd. et al. v. United 
States, Court No. 11-00411, Slip Op. 13-152 (CIT December 20, 2013), 
dated April 21, 2014 (Remand Results), available at http://enforcement.trade.gov/remands/index.html.
    \2\ See generally Remand Results.
    \3\ Id.
    \4\ See Certain Preserved Mushrooms From the People's Republic 
of China: Final Results of Antidumping Duty Administrative Review 
and Rescission in Part, 76 FR 56732 (September 14, 2011) (Final 
Results), as amended, Certain Preserved Mushrooms From the People's 
Republic of China: Amended Final Results of Antidumping Duty 
Administrative Review, 76 FR 70112 (November 10, 2011) (Amended 
Final Results).

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DATES: Effective Date: September 8, 2014.

FOR FURTHER INFORMATION CONTACT: Scott Hoefke or Davina Friedmann, AD/
CVD Operations, Office VI, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
4947 or (202) 482-0698, respectively.

SUPPLEMENTARY INFORMATION: On September 14, 2011, the Department issued 
the Final Results.\5\ On November 10, 2011, it issued the Amended Final 
Results.\6\ XITIC, Iceman Group, and Golden Banyan, exporters of 
subject merchandise, timely filed complaints

[[Page 54962]]

with the Court to challenge certain aspects of the Final Results and 
Amended Final Results. Specifically, XITIC challenged the Department's 
selection of surrogate values for fresh mushrooms, mushroom spawn, and 
lime. XITIC also argued that the Department should have applied its 
revised labor methodology, instead of its interim labor methodology, 
when calculating XITIC's surrogate labor rates and financial ratios.\7\ 
Finally, XITIC challenged the Department's decision to interpret 
section 771(35) of the Tariff Act of 1930, as amended (the Act), 
differently in administrative reviews from the manner in which it 
interprets that same provision in investigations.\8\
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    \5\ See Final Results.
    \6\ See Amended Final Results.
    \7\ On appeal, the Department acknowledged that it erred in 
applying the interim labor methodology and requested a voluntary 
remand to employ the revised labor methodology.
    \8\ After the Federal Circuit issued its decision in Union Steel 
v. United States, 713 F.3d 1101 (Fed. Cir. 2013), XITIC abandoned 
this claim.
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    Iceman Group argued that the Department unlawfully assigned it a 
separate rate. Finally, Iceman Group and Golden Banyan argued that the 
Department's separate rate calculation erroneously included the 266.13 
percent partial adverse facts available rate of Guangxi Jisheng Foods, 
Inc. (Jisheng) because that dumping margin calculated for Jisheng was 
higher than the rate assigned to the PRC-wide entity.
    On December 20, 2013, the Court remanded the Department's Final 
Results and Amended Final Results and instructed the Department to 
reconsider (1) the calculation of XITIC's surrogate values for mushroom 
spawn and lime, (2) the calculation of XITIC's labor rate and financial 
ratios, and (3) the inclusion of Jisheng's dumping margin in the 
calculation of the separate rate for Iceman Group and Golden Banyan.\9\ 
However, the Court upheld the Department's calculation of the surrogate 
value for XITIC's fresh mushrooms and its determination to assign 
Iceman Group a separate rate.\10\
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    \9\ See, generally, Xiamen Int'l Trade & Indus. Co., Ltd. v. 
United States, 953 F. Supp. 2d 1307 (Ct. Int'l Trade 2013).
    \10\ Id.
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    On April 21, 2014, the Department filed its remand results with the 
Court, in which it used a revised surrogate value for lime and 
recalculated XITIC's labor rate and financial ratios using the revised 
labor methodology.\11\ The Department further explained its decisions 
in the Final Results to calculate the surrogate value for XITIC's 
mushroom spawn using Global Trade Atlas data and to include Jisheng's 
dumping margin in the separate rate calculation.\12\ As a result of the 
changes to XITIC's calculations, XITIC's margin changed from 13.12 
percent to 5.76 percent.\13\ Because the separate rate assigned to 
Iceman Group and Golden Banyan was based in part upon XITIC's dumping 
margin, the separate rate assigned to those exporters also changed from 
76.12 percent to 74.14 percent.\14\
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    \11\ See Remand Results at 3-6, 12-14.
    \12\ Id., at 6-12, 14-21.
    \13\ Id., at 14.
    \14\ Id., at 16-17.
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    On August 28, 2014, the Court entered judgment sustaining the 
Department's Remand Results.\15\
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    \15\ See Xiamen Int'l Trade & Indus. Co., Ltd. et al. v. United 
States, Court No. 11-00411 (Ct. Int'l Trade August 28, 2014).
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Timken Notice

    In its decision in Timken, 893 F.2d at 341, as clarified by Diamond 
Sawblades, the Federal Circuit held that, pursuant to section 516A(e) 
of the Act, the Department must publish a notice of a court decision 
not ``in harmony'' with a Department determination, and must suspend 
liquidation of entries pending a ``conclusive'' court decision. The 
Court's August 28, 2014, judgment sustaining the Remand Results 
constitutes a final decision of the Court that is not in harmony with 
the Department's Amended Final Results. This notice is published in 
fulfillment of the publication requirement of Timken.

Amended Final Results

    Because there is now a final court decision, the Department amends 
the Final Results and Amended Final Results with respect to XITIC, 
Golden Banyan, and Iceman Group. The revised weighted-average dumping 
margins for these exporters during the period February 1, 2009, through 
January 31, 2010 follows:

------------------------------------------------------------------------
                                                             Weighted
                                                              average
                        Exporter                          dumping margin
                                                             (percent)
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Xiamen International Trade & Industrial Co., Ltd........            5.76
Zhejiang Iceman Group Co., Ltd..........................           74.14
Fujian Golden Banyan Foodstuffs Industrial Co., Ltd.....           74.14
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    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 Court's ruling is not appealed, or if 
appealed and upheld by the Federal Circuit, the Department will 
instruct U.S. Customs and Border Protection (CBP) to assess antidumping 
duties on entries of the subject merchandise exported by XITIC, Iceman 
Group, and Golden Banyan using the revised assessment rate calculated 
by the Department in the Remand Results and listed above.

Cash Deposit Requirements

    The cash deposit rates for Iceman Group and Golden Banyan are 
unaffected by these amended final results. The cash deposit rate for 
the PRC-wide entity, which now includes Iceman Group, will remain the 
PRC-wide entity rate established for the subsequent and most-recent 
period during which the PRC-wide entity was reviewed, which is 308.33 
percent.\16\ The cash deposit rate for Golden Banyan will remain the 
rate established for the subsequent and most-recent period during which 
Golden Banyan was reviewed, which is 304.89 percent.\17\ However, since 
the Amended Final Results, the Department has not established a new 
cash deposit rate for XITIC. Therefore, consistent with section 
751(a)(1) of the Act, the Department will instruct CBP to collect cash 
deposits for entries of subject merchandise for XITIC equal to the 
weighted-average dumping margin listed above, which is 5.76 percent 
effective September 8, 2014.
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    \16\ See Certain Preserved Mushrooms from the People's Republic 
of China: Final Results of Antidumping Duty Administrative Review; 
2012-2013, 79 FR 12150, 12151-52 & n.16 (March 4, 2014).
    \17\ See Certain Preserved Mushrooms from the People's Republic 
of China: Final Results of Antidumping Duty Review, 77 FR 55808, 
55809 (September 11, 2012).
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Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516(A)(e), 751(a)(1), and 777(i)(1) of the Act.

    Dated: September 9, 2014.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2014-21990 Filed 9-12-14; 8:45 am]
BILLING CODE 3510-DS-P