[Federal Register Volume 79, Number 178 (Monday, September 15, 2014)]
[Notices]
[Pages 54961-54962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21990]
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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 and Notice
of Amended Final Results of the Antidumping Duty Administrative Review;
2009-2010
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On August 28, 2014, the United States Court of International
Trade (the Court) issued final judgment in Xiamen International Trade
and Industrial Co., Ltd. et al. v. United States, Court No. 11-00411,
sustaining the Department of Commerce's (the Department's) final
results of redetermination pursuant to remand.\1\ In the Remand
Results, the Department recalculated the weighted-average dumping
margin for Xiamen International Trade and Industrial Co., Ltd. (XITIC)
using a revised surrogate value for lime and a revised calculation of
labor and financial ratios.\2\ The Department also recalculated the
dumping margin for two respondents not selected for individual
examination--Zhejiang Iceman Group Co., Ltd. (Iceman Group) and Fujian
Golden Banyan Foodstuffs Industrial Co., Ltd. (Golden Banyan) because
their dumping margin was based in part upon XITIC's dumping margin,
which changed on remand.\3\ Consistent with the decision of the United
States Court of Appeals for the Federal Circuit (Federal Circuit) in
Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), as
clarified by Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades), 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 antidumping duty
administrative review of certain preserved mushrooms from the People's
Republic of China (PRC) covering the period February 1, 2009, through
January 31, 2010, and is amending the amended final results with
respect to the weighted-average dumping margins assigned to XITIC,
Iceman Group, and Golden Banyan.\4\
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\1\ See Final Results of Redetermination Pursuant to Court
Remand, Certain Preserved Mushrooms from the People's Republic of
China, Xiamen Int'l Trade & Indus. Co., Ltd. et al. v. United
States, Court No. 11-00411, Slip Op. 13-152 (CIT December 20, 2013),
dated April 21, 2014 (Remand Results), available at http://enforcement.trade.gov/remands/index.html.
\2\ See generally Remand Results.
\3\ Id.
\4\ See Certain Preserved Mushrooms From the People's Republic
of China: Final Results of Antidumping Duty Administrative Review
and Rescission in Part, 76 FR 56732 (September 14, 2011) (Final
Results), as amended, Certain Preserved Mushrooms From the People's
Republic of China: Amended Final Results of Antidumping Duty
Administrative Review, 76 FR 70112 (November 10, 2011) (Amended
Final Results).
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DATES: Effective Date: September 8, 2014.
FOR FURTHER INFORMATION CONTACT: Scott Hoefke or Davina Friedmann, AD/
CVD Operations, Office VI, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
4947 or (202) 482-0698, respectively.
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
[[Page 54962]]
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\
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\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.
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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\
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\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.
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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\
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\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.
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On August 28, 2014, the Court entered judgment sustaining the
Department's Remand Results.\15\
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\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).
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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:
------------------------------------------------------------------------
Weighted
average
Exporter dumping margin
(percent)
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Xiamen International Trade & Industrial Co., Ltd........ 5.76
Zhejiang Iceman Group Co., Ltd.......................... 74.14
Fujian Golden Banyan Foodstuffs Industrial Co., Ltd..... 74.14
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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.
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\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).
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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.
[FR Doc. 2014-21990 Filed 9-12-14; 8:45 am]
BILLING CODE 3510-DS-P