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Notice

Certain Preserved Mushrooms from the People's Republic of China: Amended Final Results Pursuant to Final Court Decision

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On September 16, 2008, 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, whereby the Department, in accordance with the CIT's instructions: (1) recalculated the assessment rate for Gerber Food (Yunnan) Co., Ltd. (Gerber) using a rate other than the PRC-wide rate as partial adverse facts available (AFA) with respect to certain period of review (POR) sales of subject merchandise produced by Gerber for which the customs entry documentation identified Green Fresh (Zhangzhou) Co., Ltd. (Green Fresh) as the exporter; 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, Start Printed Page 72449the Department is amending the final results of the 2001-2002 administrative review of certain preserved mushrooms from the People's Republic of China (PRC).

EFFECTIVE DATE:

November 28, 2008.

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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.

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SUPPLEMENTARY INFORMATION:

Background

On July 11, 2003, the Department published its final results of administrative review, covering the period of review from February 1, 2001, through January 31, 2002. See Certain Preserved Mushrooms From the People's Republic of China: Final Results and Partial Rescission of the New Shipper Review and Final Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 68 FR 41304 (July 11, 2003) (Final Results), and accompanying Issues and Decision Memorandum. In the Final Results, the Department applied total AFA in calculating the cash deposit and assessment rates for respondents Gerber and Green Fresh, pursuant to sections 776(a) and (b) of the Tariff Act of 1930, as amended (the Act). See Final Results, 68 FR at 41306, and accompanying Issues and Decision Memorandum at Comment 1. The Department found that Gerber and Green Fresh were involved in a business arrangement during the POR that resulted in the circumvention of the proper payment of cash deposits on certain POR entries of subject merchandise made by Gerber. Id. As total 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 total AFA to determine their cash deposit and assessment rates for the POR in the Final Results before the CIT.

On July 18, 2005, the CIT concluded that the Department exceeded its statutory authority by rejecting all data relevant to antidumping assessment rates submitted by the two companies. See Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 05-84 (July 18, 2005). Therefore, the CIT remanded this case to the Department.

On November 30, 2005, the Department issued its Results of Redetermination Pursuant to Court Remand (First Remand Redetermination). In the First Remand Redetermination, the Department modified its original final results margin calculations for both companies by applying partial, instead of total, AFA.

On May 24, 2007, the CIT issued the Department a second remand. See Gerber Food (Yunnan) Co., Ltd. and Green Fresh (Zhangzhou) Co., Ltd. v. United States, Slip Op. 07-85 (May 24, 2007) (Gerber v. United States II). In its decision, the CIT agreed with the Department that both Gerber and Green Fresh had failed to cooperate to the best of their abilities in the above-referenced review. With regard to Gerber, the CIT affirmed that the Department was justified in resorting to AFA for the 24 sales for which Gerber used Green Fresh invoices. However, the CIT instructed the Department to use a different AFA rate for those 24 sales for purposes of calculating cash deposit and assessment rates for Gerber. With regard to Green Fresh, the CIT instructed the Department to revisit its basis for resorting to partial AFA because the sales at issue were made by Gerber.

In accordance with the CIT's instructions, the Department issued its Results of Redetermination Pursuant to Court Remand on September 18, 2007. See Results of Redetermination Pursuant to Remand, dated September 18, 2007 (available at http://ia.ita.doc.gov/​remands) (Second Remand Redetermination). In the Second Remand Redetermination, the Department recalculated the assessment rate for Gerber by applying partial AFA to the 24 sales made by Gerber during the POR which were exported to the United States using Green Fresh's invoices. The Department also recalculated the assessment rate for Green Fresh exclusive of the same 24 transactions in accordance with the CIT's instructions.

On September 16, 2008, the CIT issued its decision, affirming the Department's Second Remand Redetermination. 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 III); and Certain Preserved Mushrooms From the People's Republic of China: Notice of Court Decision Not in Harmony with Final Results of Administrative Review, 73 FR 57322 (October 2, 2008).

The time period for appealing the CIT's decision has expired and no party has 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 of the 2001-2002 administrative review.

Amended Final Results of Review

We are therefore amending the final results of the 2001-2002 administrative review of the antidumping duty order on certain preserved mushrooms from the PRC to abide by the CIT's decision with respect to the cash deposit and assessment rates applicable to Gerber and Green Fresh. Specifically, the Department's redetermination resulted in changes to the Final Results weighted-average margins for Gerber from 198.63 percent to 92.11 percent, and for Green Fresh from 84.26 percent to 31.55 percent.

Assessment

The Department will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries for this review. In accordance with 19 CFR 351.106(c), we will instruct CBP to assess antidumping duties on all appropriate entries for both companies if any importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., is not less than 0.50 percent ad valorem). 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 516A(e), 751(a)(1) and 777(i)(1) of the Act.

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Dated: November 20, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

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[FR Doc. E8-28321 Filed 11-26-08; 8:45 am]

BILLING CODE 3510-DS-S