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Notice

Certain Preserved Mushrooms from India: Notice of Court Decision Not in Harmony with Final Results of Administrative Review

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On May 8, 2008, the United States Court of International Trade (CIT) sustained the results of redetermination made by the Department of Commerce (the Department) pursuant to the CIT's remand in Agro Dutch Industries Limited v. United States, Slip Op. 07-185 (December 26, 2007) (Agro Dutch II). See Agro Dutch Industries Limited v. United States, Slip Op. 08-50 (May 8, 2008) (Agro Dutch III). 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 India covering the period of review (POR) of February 1, 2000, through January 31, 2001. See Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review, 67 FR 46172 (July 12, 2002), and accompanying Issues and Decisions Memorandum (Final Results).

EFFECTIVE DATE:

May 23, 2008.

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FOR FURTHER INFORMATION CONTACT:

David Goldberger or Katherine Johnson, 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) 482-4136 or (202) 482-4929, respectively.

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SUPPLEMENTARY INFORMATION:

Background

On July 12, 2002, the Department issued its final results in the antidumping duty administrative review of certain preserved mushrooms from India covering the POR of February 1, 2000, through January 31, 2001. See Final Results. Agro Dutch challenged three aspects of the Department's Final Results: (1) that the use of partial facts available and adverse inferences for certain of its sales was improper; (2) that the methodology used to determine Agro Dutch's constructed value was in error; and (3) that the calculation of its imputed credit expenses was in error.

In Agro Dutch Industries Limited v. United States, Slip Op. 07-25 (February 16, 2007) (Agro Dutch I), the CIT upheld the Department's determinations on issues (2) and (3) regarding constructive value and imputed credit expense methodologies. However, with respect to the first issue, that the use of partial facts available and adverse inferences for certain of Agro Dutch's sales was improper, the CIT instructed the Department on remand to revisit its determination that the use of partial facts available and adverse inferences was warranted for the transactions where the Department applied them.

On March 3, 2007, the Department filed its remand redetermination and further explained its use and application of facts available in this review. In Agro Dutch II, the CIT did not accept the Department's explanation and again remanded the case to the Department, instructing the Department to either reopen the proceeding for the limited purpose of obtaining satisfactory answers to the Department's questions that generated the Department's use of partial facts available, or make a determination on the basis of facts available without imputing an adverse inference on the record evidence obtained during the review.

On April 3, 2008, the Department issued its final results of redetermination pursuant to Agro Dutch II. The remand redetermination explained that, in accordance with the CIT's instructions, the Department analyzed the information on the record and made its determination for certain Agro Dutch sales on the basis of facts Start Printed Page 30052available without imputing an adverse inference. The Department's redetermination resulted in a change from the Final Results weighted-average margin for Agro Dutch from 27.80 percent to 1.54 percent.

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 Agro Dutch III on May 8, 2008, 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 Agro Dutch based on the revised importer-specific assessment rates calculated by the Department.

This notice is issued and published in accordance with section 516A(c)(1) of the Act.

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Dated: May 19, 2008.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

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[FR Doc. E8-11622 Filed 5-22-08; 8:45 am]

BILLING CODE 3510-DS-S