3896 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Notices 

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 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). See 

Redetermination Pursuant to Court 

Remand, dated July 24, 2009 (Remand 

Redetermination) (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. 10–2 (January 5, 2010) 

(Gerber v. United States II) . 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, 2002, through January 31, 

2003. 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). 

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 

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 Food (Yunnan) Co., 

Ltd. (Gerber), and partial AFA in 

calculating the cash deposit and 

assessment rates for respondent Green 

Fresh (Zhangzhou) Co., Ltd. (Green 

Fresh). 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 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. 

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. 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 

application of AFA. 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. See 

Remand Determination at 1, and 4–7. 

The CIT affirmed this redetermination 

on January 5, 2010. See Gerber v. United 

States II at 3. 

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 II 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 of court 

decision is effective January 15, 2010. 

This notice is issued and published in 

accordance with section 516A(c)(1) of 

the Act. 

Dated: January 19, 2010. 

Ronald K. Lorentzen 

Deputy Assistant Secretary for Import 

Administration. 

[FR Doc. 2010–1340 Filed 1–22–04; 8:45 am] 

BILLING CODE 3510–DS–S 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–489–501] 

Certain Welded Carbon Steel Pipe and 

Tube from Turkey: Extension of Time 

Limit for Preliminary Results of 

Antidumping Duty Administrative 

Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

FOR FURTHER INFORMATION CONTACT: Joy 

Zhang, or Christopher Hargett, AD/CVD 

Operations, Office 3, Import 

Administration, International Trade 

Administration, U.S. Department of 

Commerce, Room 4014, 14th Street and 

Constitution Ave., NW, Washington, DC 


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