[Federal Register Volume 75, Number 15 (Monday, January 25, 2010)]
[Notices]
[Page 3896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1340]



[[Page 3896]]

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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 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