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
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
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.
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
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.
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
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.
On August 28, 2014, the Court entered judgment sustaining the Department's
Remand Results.
15
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).
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:
Exporter
Weighted
average
dumping
margin
(percent)
Xiamen International Trade & Industrial Co., Ltd
5.76
Zhejiang Iceman Group Co., Ltd
74.14
Fujian Golden Banyan Foodstuffs Industrial Co., Ltd
74.14
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.
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).
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.