Certain Preserved Mushrooms from the People's Republic of China: Preliminary Results of the Antidumping Duty New Shipper Review, 38617-38620 [E6-10667]
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Federal Register / Vol. 71, No. 130 / Friday, July 7, 2006 / Notices
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–851]
Certain Preserved Mushrooms from
the People’s Republic of China:
Preliminary Results of the
Antidumping Duty New Shipper
Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) is currently
conducting a new shipper review
(‘‘NSR’’) of the antidumping duty order
on certain preserved mushrooms from
the People’s Republic of China (‘‘PRC’’)
covering the period February 1, 2005,
through August 15, 2005. We
preliminarily determine that sales have
been made below normal value (‘‘NV’’)
with respect to Guangxi Eastwing
Trading Co., Ltd. (‘‘Eastwing’’), which
participated fully and is entitled to a
separate rate in this review. If these
preliminary results are adopted in our
final results of this review, we will
instruct U.S. Customs and Border
Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the period of
review (‘‘POR’’) for which the importer–
specific assessment rates are above de
minimis.
EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT:
Matthew Renkey, AD/CVD Operations,
Office 9, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202)
482–2312.
SUPPLEMENTARY INFORMATION:
AGENCY:
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Case History
General
On February 19, 1999, the Department
published in the Federal Register an
amended final determination and
antidumping duty order on certain
preserved mushrooms from the PRC.
See Notice of Amendment of Final
Determination of Sales at Less Than
Fair Value and Antidumping Duty
Order: Certain Preserved Mushrooms
from the People’s Republic of China, 64
FR 8308 (February 19, 1999). On August
23, 2005, we received a timely new
shipper review request in accordance
with section 751(a)(2)(B) of the Tariff
Act of 1930, as amended (the Act), and
section 351.214(c) of the Department’s
regulations, from an exporter, Eastwing,
and its producer, Raoping CXF Foods,
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38617
Inc. (‘‘CXF’’). On October 7, 2005, the
Department published a notice in the
Federal Register initiating a NSR for
Eastwing. See Certain Preserved
Mushrooms from the People’s Republic
of China: Initiation of New Shipper
Review, 70 FR 58686 (October 7, 2005)
(‘‘Initiation Notice’’).
On January 19, 2006, we issued a
memorandum that extended the end of
the POR from July 31, 2005, to August
15, 2005, in order to capture the entry
of Eastwing’s merchandise into the
United States market. See Memorandum
to the File from Matthew Renkey, Senior
Analyst, through Alex Villanueva,
Program Manager, Office 9: Expansion
of the Period of Review in the New
Shipper Review of Certain Preserved
Mushrooms from the People’s Republic
of China, dated January 19, 2006. On
February 16, 2006, we placed the entry
package we received from CBP for
Eastwing’s new shipper sale on the
record of this review. See Memorandum
to the File from Matthew Renkey, Senior
Analyst, through Alex Villanueva,
Program Manager, Office 9: Certain
Preserved Mushrooms from the People’s
Republic of China: Entry Packages from
U.S. Customs and Border Protection
(‘‘CBP’’), dated February 16, 2006.
On November 30, 2005, we requested
from the Office of Policy a
memorandum listing surrogate
countries. We received a list of surrogate
countries on December 16, 2005, and in
a letter dated December 19, 2005,
notified parties of the opportunity to
submit comments on surrogate country
selection. Additionally, in the same
letter, we also provided interested
parties an opportunity to submit
surrogate value comments. No party
submitted surrogate country selection
comments. On January 20, 2006, we
issued our surrogate country selection
memorandum. See Memorandum to the
File from Matthew Renkey, Senior
Analyst, through Alex Villanueva,
Program Manager, Office 9, and Jim
Doyle, Director, Office 9: Antidumping
Duty New Shipper Review of Certain
Preserved Mushrooms from the People’s
Republic of China: Selection of a
Surrogate Country, dated January 20,
2006 (‘‘Surrogate Country Memo’’). To
date, no party has submitted comments
on surrogate values.
Questionnaires and Responses
On October 21, 2005, we issued
sections A, C, and D of the general
antidumping duty questionnaire to
Eastwing, along with the standard
importer questionnaire for new shipper
reviews. Eastwing submitted its
response to section A of the
questionnaire on November 21, 2005,
and subsequently submitted its response
to sections C, D, and the importer
questionnaire on November 25, 2005.
On December 6, 2005, we issued our
first supplemental questionnaire for
sections A, C and D; Eastwing filed its
response to this supplemental
questionnaire on December 20, 2005. On
December 14, 2005, we sent a
supplemental questionnaire to
Eastwing’s importer; Eastwing’s
importer filed its response on December
22, 2005.
On January 12, 2006, we sent
Eastwing a second supplemental
questionnaire for sections A, C, and D,
and Eastwing submitted its response on
January 26, 2006. We issued a third
supplemental questionnaire to
Eastwing, covering sections A, C, and D,
as well as a question for Eastwing’s
importer, on March 23, 2006. Eastwing
filed its response to this supplemental
questionnaire (including a response to
the question for the importer) on April
3, 2006.
Surrogate Country and Values
Scope of the Order
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Period of Review
The POR covers February 1, 2005,
through August 15, 2005.
The products covered by this order
are certain preserved mushrooms,
whether imported whole, sliced, diced,
or as stems and pieces. The certain
preserved mushrooms covered under
this order are the species Agaricus
bisporus and Agaricus bitorquis.
‘‘Certain Preserved Mushrooms’’ refer to
mushrooms that have been prepared or
preserved by cleaning, blanching, and
sometimes slicing or cutting. These
mushrooms are then packed and heated
in containers including, but not limited
to, cans or glass jars in a suitable liquid
medium, including, but not limited to,
water, brine, butter or butter sauce.
Certain preserved mushrooms may be
imported whole, sliced, diced, or as
stems and pieces. Included within the
scope of this order are ‘‘brined’’
mushrooms, which are presalted and
packed in a heavy salt solution to
provisionally preserve them for further
processing.
Excluded from the scope of this order
are the following: (1) All other species
of mushroom, including straw
mushrooms; (2) all fresh and chilled
mushrooms, including ‘‘refrigerated’’ or
‘‘quick blanched mushrooms’’; (3) dried
mushrooms; (4) frozen mushrooms; and
(5) ‘‘marinated,’’ ‘‘acidified,’’ or
‘‘pickled’’ mushrooms, which are
prepared or preserved by means of
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vinegar or acetic acid, but may contain
oil or other additives.1
The merchandise subject to this order
is classifiable under subheadings:
2003.10.0127, 2003.10.0131,
2003.10.0137, 2003.10.0143,
2003.10.0147, 2003.10.0153 and
0711.51.0000 of the Harmonized Tariff
Schedule of the United States
(‘‘HTSUS’’). Although the HTSUS
subheadings are provided for
convenience and customs purposes, the
written description of the scope of this
order is dispositive.
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Verification
On April 4, 2006, we issued the
verification outline to Eastwing. The
Department conducted verification of
the questionnaire responses submitted
by Eastwing at its office in Nanning,
PRC from April 17–18, 2006, and at its
producer’s factory in Raoping, PRC from
April 20–21, 2006. We used standard
verification procedures, including on–
site inspection of the manufacturer’s
and exporter’s facilities, and
examination of relevant sales and
financial records. Our verification
results are outlined in the verification
report, which is being issued
concurrently with this notice. For
further discussion, see Memorandum to
the File from Matthew Renkey, Senior
Analyst, Office 9, through Alex
Villanueva, Program Manager, Office 9:
Verification of the Sales Response of
Guangxi Eastwing Trading Co., Ltd. and
the Factors of Production Response of
Raoping CXF Foods, Inc. in the
Antidumping Duty New Shipper Review
of Certain Preserved Mushrooms from
the People’s Republic of China, dated
June 27, 2006, (‘‘Eastwing Verification
Report’’).
Consistent with the Department’s
practice, we investigated the bona fide
nature of the sale made by Eastwing for
this new shipper review. We found that
Eastwing’s new shipper sale was made
on a bona fide basis. Based on our
investigation into the bona fide nature
of the sales, the questionnaire responses
submitted by each company, and our
verification thereof, as well as
Eastwing’s eligibility for a separate rate
(see below) and the Department’s
1 On June 19, 2000, the Department affirmed that
‘‘marinated,’’ ‘‘acidified,’’ or ‘‘pickled’’ mushrooms
containing less than 0.5 percent acetic acid are
within the scope of the antidumping duty order.
See ‘‘Recommendation Memorandum-Final Ruling
of Request by Tak Fat, et al. for Exclusion of Certain
Marinated, Acidified Mushrooms from the Scope of
the Antidumping Duty Order on Certain Preserved
Mushrooms from the People’s Republic of China,’’
dated June 19, 2000. On February 9, 2005, this
decision was upheld by the United States Court of
Appeals for the Federal Circuit. See Tak Fat v.
United States, 39C F.3d 1378 (Fed. Cir. 2005).
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preliminary determination that
Eastwing was not affiliated with any
exporter or producer that had
previously shipped subject merchandise
to the United States, we preliminarily
determine that the respondent has met
the requirements to qualify as a new
shipper during the POR. Therefore, for
purposes of these preliminary results of
the review, we are treating Eastwing’s
sale of subject merchandise to the
United States as an appropriate
transaction for this new shipper review.
See Memorandum from Matthew
Renkey, Senior Analyst, Office 9,
through Alex Villanueva, Program
Manager, Office 9, to James C. Doyle,
Office Director, Office 9: Bona Fide
Nature of the Sale in the Antidumping
Duty New Shipper Review of Certain
Preserved Mushrooms: Guangxi
Eastwing Trading Co., Ltd., dated June
27, 2006 (‘‘Eastwing Prelim Bona Fide
Memo’’). As stated in the Eastwing
Prelim Bona Fide Memo, we will
continue to examine certain aspects of
Eastwing’s entry of subject merchandise.
Separate Rates
The Department has treated the PRC
as a non–market economy (‘‘NME’’)
country in all previous antidumping
cases. See, e.g., Final Determination of
Sales at Less Than Fair Value and Final
Partial Affirmative Determination of
Critical Circumstances: Diamond
Sawblades and Parts Thereof from the
People’s Republic of China, 71 FR 29303
(May 22, 2006).In accordance with
section 771(18)(C)(i) of the Act, any
determination that a foreign country is
an NME country shall remain in effect
until revoked by the administering
authority. There is no evidence on the
record suggesting that this
determination should be changed.
Therefore, we treated the PRC as an
NME country for purposes of this
review and calculated NV by valuing
the factors of production (‘‘FOP’’) in a
surrogate country. It is the Department’s
policy to assign all exporters of the
merchandise subject to review, located
in NME countries, a single antidumping
duty rate unless an exporter can
demonstrate an absence of governmental
control, both in law (de jure) and in fact
(de facto), with respect to its export
activities. To establish whether an
exporter is sufficiently independent of
governmental control to be entitled to a
separate rate, the Department analyzes
the exporter using the criteria
established in the Final Determination
of Sales at Less Than Fair Value:
Sparklers from the People’s Republic of
China, 56 FR 20588 (May 6, 1991)
(‘‘Sparklers’’), as adopted and amplified
in the Final Determination of Sales at
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Less Than Fair Value: Silicon Carbide
from the People’s Republic of China, 59
FR 22585, 22586–87 (May 2, 1994)
(‘‘Silicon Carbide’’). Under the separate
rates criteria established in these cases,
the Department assigns separate rates to
NME exporters only if they can
demonstrate the absence of both de jure
and de facto governmental control over
their export activities.
Absence of De Jure Control
Evidence supporting, though not
requiring, a finding of de jure absence
of government control over export
activities includes: (1) an absence of
restrictive stipulations associated with
the individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) any other formal
measures by the government
decentralizing control of companies. See
Sparklers at 20589.
In the instant review, Eastwing
submitted a complete response to the
separate rates section of the
Department’s questionnaire. The
evidence submitted in the instant
review by Eastwing includes
government laws and regulations on
corporate ownership and control,
business licenses, and narrative
information regarding the company’s
operations and selection of
management. See Eastwing Verification
Report at Exhibits 2, 3, and 6. The
evidence provided by Eastwing supports
a finding of a de jure absence of
governmental control over their export
activities because: (1) there are no
controls on exports of subject
merchandise, such as quotas applied to,
or licenses required for, exports of the
subject merchandise to the United
States; and (2) the subject merchandise
does not appear on any government list
regarding export provisions or export
licensing.
Absence of De Facto Control
The absence of de facto governmental
control over exports is based on whether
the respondent: (1) sets its own export
prices independent of the government
and other exporters; (2) retains the
proceeds from its export sales and
makes independent decisions regarding
the disposition of profits or financing of
losses; (3) has the authority to negotiate
and sign contracts and other
agreements; and (4) has autonomy from
the government regarding the selection
of management. See Silicon Carbide at
22587; Sparklers at 20589; see also
Notice of Final Determination of Sales
at Less Than Fair Value: Furfuryl
Alcohol from the People’s Republic of
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China, 60 FR 22544, 22545 (May 8,
1995).
In its questionnaire responses,
Eastwing submitted evidence
demonstrating an absence of de facto
governmental control over its export
activities. Specifically, this evidence
indicates that: (1) the company sets its
own export prices independent of the
government and without the approval of
a government authority; (2) the
company retains the proceeds from its
sales and makes independent decisions
regarding the disposition of profits or
financing of losses; (3) the company has
a general manager with the authority to
negotiate and bind the company in an
agreement; (4) the general manager is
selected by the board of directors, and
the general manager appoints the
deputy managers and the manager of
each department; and (5) there is no
restriction on the company’s use of
export revenues. Therefore, we have
preliminarily found that Eastwing has
established prima facie that it qualifies
for a separate rate under the criteria
established by Silicon Carbide and
Sparklers.
Surrogate Country
When the Department is investigating
imports from an NME country, section
773(c)(1) of the Act directs it to base
normal value (‘‘NV’’), in most
circumstances, on the NME producer’s
factors of production, valued in a
surrogate market–economy country or
countries considered to be appropriate
by the Department. In accordance with
section 773(c)(4) of the Act, in valuing
the factors of production, the
Department shall utilize, to the extent
possible, the prices or costs of factors of
production in one or more market–
economy countries that are at a level of
economic development comparable to
that of the NME country and are
significant producers of comparable
merchandise. The sources of the
surrogate values we have used in this
investigation are discussed under the
‘‘Normal Value’’ section below.
The Department determined that
India, Sri Lanka, Indonesia, the
Philippines, and Egypt are countries
comparable to the PRC in terms of
economic development. See
Memorandum from Ron Lorentzen,
Director, Office of Policy, to Alex
Villanueva, Program Manager, Office 9;
New Shipper Review of Certain
Preserved Mushrooms from the People’s
Republic of China (PRC): Request for a
List of Surrogate Countries, dated
December 16, 2005. Because of India’s
and Indonesia’s relative levels of
production, and consistent with
worldwide characteristics of frozen
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Jkt 208001
shrimp production, these countries were
selected as significant producers of
comparable merchandise. See Surrogate
Country Memo at 4. The Department
selects an appropriate surrogate country
based on the availability and reliability
of data from the countries. See
Department Policy Bulletin No. 04.1:
Non–Market Economy Surrogate
Country Selection Process (‘‘Policy
Bulletin’’), dated March 1, 2004. In this
case, we have found that India is a
significant producer of comparable
merchandise, is at a similar level of
economic development pursuant to
section 773(c)(4) of the Act, and has
publicly available and reliable data. See
Surrogate Country Memo.
U.S. Price
In accordance with section 772(a) of
the Act, we calculated the export price
(‘‘EP’’) for sales to the United States for
Eastwing because the first sale to an
unaffiliated party was made before the
date of importation and the use of
constructed EP (‘‘CEP’’) was not
otherwise warranted. We calculated EP
based on the price to unaffiliated
purchasers in the United States. In
accordance with section 772(c) of the
Act, as appropriate, we deducted from
the starting price to unaffiliated
purchasers foreign inland freight and
brokerage and handling. For Eastwing,
each of these services was either
provided by an NME vendor or paid for
using an NME currency. Thus, we based
the deduction of these movement
charges on surrogate values. See
Memorandum from Matthew Renkey,
Senior Analyst, through Alex
Villanueva, Program Manager, Office 9,
to the File; New Shipper Review of
Certain Preserved Mushrooms from the
People’s Republic of China: Surrogate
Values for the Preliminary Results,
dated June 27, 2006 (‘‘Surrogate Values
Memo’’) for details regarding the
surrogate values for movement
expenses.
Normal Value
In accordance with section 773(c) of
the Act, we calculated NV based on
factors of production (‘‘FOP’’) reported
by the Respondents for the POR. To
calculate NV, we valued the reported
FOP by multiplying the per–unit factor
quantities by publicly available Indian
surrogate values. In selecting surrogate
values, we considered the quality,
specificity, and contemporaneity of the
available values. As appropriate, we
adjusted the value of material inputs to
account for delivery costs. Where
appropriate, we increased Indian
surrogate values by surrogate inland
freight costs. We calculated these inland
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38619
freight costs using the shorter of the
reported distances from the PRC port to
the PRC factory, or from the domestic
supplier to the factory. This adjustment
is in accordance with the United States
Court of Appeals for the Federal
Circuit’s (‘‘CAFC’’) decision in Sigma
Corp. v. United States, 117 F. 3d 1401,
1407–1408 (Fed.Cir. 1997). For those
values not contemporaneous with the
POR, we adjusted for inflation or
deflation using data published in the
International Monetary Fund’s
International Financial Statistics.
Imports from Korea, Thailand, and
Indonesia were excluded from the
surrogate country import data due to
generally available export subsidies. See
China Nat’l Mach. Import & Export
Corp. v. United States, CIT 01–1114, 293
F. Supp. 2d 1334 (CIT 2003), aff’d 104
Fed. Appx. 183 (Fed. Cir. 2004) and
Certain Cut–to-Length Carbon Steel
Plate from Romania: Notice of Final
Results and Final Partial Rescission of
Antidumping Duty Administrative
Review, 70 FR 12651 (March 15, 2005)
and accompanying Issues and Decision
Memorandum at Comment 4.
Furthermore, we disregarded prices
from NME countries. Finally, imports
that were labeled as originating from an
‘‘unspecified’’ country were excluded
from the average value because the
Department could not be certain that
they were not from either an NME
country or a country with general export
subsidies. Finally, we converted the
surrogate values to U.S. dollars as
appropriate, using the official exchange
rate recorded on the dates of sale of
subject merchandise in this case,
obtained from the Import
Administration’s website at https://
www.ia.ita.doc.gov/exchange/
index.html. For further detail, see the
Surrogate Values Memo.
Preliminary Results of Review
We preliminarily determine that the
following margin exists during the
period February 1, 2005, through
August 15, 2005:
CERTAIN PRESERVED MUSHROOMS
FROM THE PRC
Exporter/Manufacturer
Guangxi Eastwing Trading Co., Ltd./Raoping
CXF Foods, Inc. ........
Weighted–Average
Margin (Percent)
104.32
Public Comment
The Department will disclose to
parties to this proceeding the
calculations performed in reaching the
preliminary results within ten days of
the date of announcement of these
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preliminary results. An interested party
may request a hearing within 30 days of
publication of these preliminary results.
See 19 CFR 351.310(c). Interested
parties may submit written comments
(case briefs) within 30 days of
publication of the preliminary results
and rebuttal comments (rebuttal briefs),
which must be limited to issues raised
in the case briefs, within five days after
the time limit for filing case briefs. See
19 CFR 351.309(c)(1)(ii) and 19 CFR
351.309(d). Parties who submit
arguments are requested to submit with
the argument: (1) a statement of the
issue; (2) a brief summary of the
argument; and (3) a table of authorities.
Further, the Department requests that
parties submitting written comments
provide the Department with a diskette
containing the public version of those
comments. Unless the deadline is
extended pursuant to section
751(a)(3)(A) of the Act, the Department
will issue the final results of this new
shipper review, including the results of
our analysis of the issues raised by the
parties in their comments, within 120
days of publication of these preliminary
results. The assessment of antidumping
duties on entries of merchandise
covered by this review and future
deposits of estimated duties shall be
based on the final results of this review.
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Assessment Rates
Upon issuing the final results of the
review, the Department shall determine,
and CBP shall assess and liquidate,
antidumping duties on all appropriate
entries. The Department will issue
appropriate appraisement instructions
for the companies subject to this review
directly to CBP within 15 days of
publication of the final results of this
review. Pursuant to 19 CFR
351.212(b)(1), we will calculate
importer–specific ad valorem duty
assessment rates based on the ratio of
the total amount of the dumping
margins calculated for the examined
sales to the total entered value of those
same sales. We will instruct CBP to
assess antidumping duties on all
appropriate entries covered by this
review if any importer–specific
assessment rate calculated in the final
results of this review is above de
minimis.
CXF and exported by Eastwing that are
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of the final results of
this new shipper review. See 19 CFR
351.214(e). The following cash deposit
requirements will be effective upon
publication of the final results of this
new shipper review for all shipments of
subject merchandise from Eastwing
entered, or withdrawn from warehouse,
for consumption on or after the
publication date: (1) for subject
merchandise manufactured by CXF and
exported by Eastwing, the cash deposit
rate will be the rate established in the
final results of this review, except that
no cash deposit will be required if the
cash deposit rate calculated in the final
results is zero or de minimis; and (2) for
subject merchandise exported by
Eastwing but not manufactured by CXF,
the cash deposit rate will continue to be
the PRC–wide rate (i.e., 198.63 percent);
and (3) for subject merchandise
produced by CXF but not exported by
Eastwing, the cash deposit rate will be
the rate applicable to the exporter.
These requirements, when imposed,
shall remain in effect until publication
of the final results of the next
administrative review.
Notification to Importers
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This new shipper review and notice
are in accordance with sections
751(a)(1), 751(a)(2)(B), and 777(i) of the
Act and 19 CFR 351.214(h)(i).
Dated: June 27, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6–10667 Filed 7–6–06; 8:45 am]
BILLING CODE 3510–DS–S
Cash Deposit Requirements
Upon completion of this review, we
will require cash deposits at the rate
established in the final results as further
described below.
Bonding will no longer be permitted
to fulfill security requirements for
shipments of certain preserved
mushrooms from the PRC produced by
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DEPARTMENT OF COMMERCE
International Trade Administration
[A–565–801]
Stainless Steel Butt–Weld Pipe Fittings
from the Philippines: Notice of
Rescission of Antidumping Duty
Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT: Fred
Baker or Robert James, AD/CVD
Operations, Office 7, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482 2924 or (202) 482–
0649, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
On February 1, 2006, the Department
published in the Federal Register (71
FR 5239) a notice of ‘‘Opportunity to
Request an Administrative Review’’ of
the antidumping duty order on stainless
steel butt–weld pipe fittings from the
Philippines for the period February 1,
2005, through January 31, 2006. On
February 28, 2006, petitioners (Flowline
Division of Markovitz Enterprises, Inc.,
Gerlin, Inc., Shaw Alloy Piping
Products, Inc., and Taylor Forge
Stainless, Inc.) requested an
administrative review of Tung Fong
Industrial Co., Inc. (Tung Fong) and
Enlin Steel Corporation (Enlin) for this
period. On April 5, 2006, the
Department published a notice of
initiation of an administrative review of
the antidumping duty order on stainless
steel butt–weld pipe fittings from the
Philippines with respect to these two
companies. See Initiation of
Antidumping and Countervailing Duty
Administrative Reviews and Deferral of
Administrative Reviews, 71 FR 17077
(April 5, 2006).
Rescission of Review
On June 19, 2006, petitioners
withdrew their request for an
administrative review of Tung Fong’s
and Enlin’s sales during the above–
referenced period. Section 351.213(d)(1)
of the Department’s regulations
stipulates that the Secretary will rescind
an administrative review if the party
that requests a review withdraws the
request within 90 days of the date of
publication of notice of initiation of the
requested review. In this case,
petitioners have withdrawn their
E:\FR\FM\07JYN1.SGM
07JYN1
Agencies
[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Notices]
[Pages 38617-38620]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-10667]
[[Page 38617]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-851]
Certain Preserved Mushrooms from the People's Republic of China:
Preliminary Results of the Antidumping Duty New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is currently
conducting a new shipper review (``NSR'') of the antidumping duty order
on certain preserved mushrooms from the People's Republic of China
(``PRC'') covering the period February 1, 2005, through August 15,
2005. We preliminarily determine that sales have been made below normal
value (``NV'') with respect to Guangxi Eastwing Trading Co., Ltd.
(``Eastwing''), which participated fully and is entitled to a separate
rate in this review. If these preliminary results are adopted in our
final results of this review, we will instruct U.S. Customs and Border
Protection (``CBP'') to assess antidumping duties on entries of subject
merchandise during the period of review (``POR'') for which the
importer-specific assessment rates are above de minimis.
EFFECTIVE DATE: July 7, 2006.
FOR FURTHER INFORMATION CONTACT: Matthew Renkey, AD/CVD Operations,
Office 9, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202) 482-2312.
SUPPLEMENTARY INFORMATION:
Case History
General
On February 19, 1999, the Department published in the Federal
Register an amended final determination and antidumping duty order on
certain preserved mushrooms from the PRC. See Notice of Amendment of
Final Determination of Sales at Less Than Fair Value and Antidumping
Duty Order: Certain Preserved Mushrooms from the People's Republic of
China, 64 FR 8308 (February 19, 1999). On August 23, 2005, we received
a timely new shipper review request in accordance with section
751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and
section 351.214(c) of the Department's regulations, from an exporter,
Eastwing, and its producer, Raoping CXF Foods, Inc. (``CXF''). On
October 7, 2005, the Department published a notice in the Federal
Register initiating a NSR for Eastwing. See Certain Preserved Mushrooms
from the People's Republic of China: Initiation of New Shipper Review,
70 FR 58686 (October 7, 2005) (``Initiation Notice'').
On January 19, 2006, we issued a memorandum that extended the end
of the POR from July 31, 2005, to August 15, 2005, in order to capture
the entry of Eastwing's merchandise into the United States market. See
Memorandum to the File from Matthew Renkey, Senior Analyst, through
Alex Villanueva, Program Manager, Office 9: Expansion of the Period of
Review in the New Shipper Review of Certain Preserved Mushrooms from
the People's Republic of China, dated January 19, 2006. On February 16,
2006, we placed the entry package we received from CBP for Eastwing's
new shipper sale on the record of this review. See Memorandum to the
File from Matthew Renkey, Senior Analyst, through Alex Villanueva,
Program Manager, Office 9: Certain Preserved Mushrooms from the
People's Republic of China: Entry Packages from U.S. Customs and Border
Protection (``CBP''), dated February 16, 2006.
Questionnaires and Responses
On October 21, 2005, we issued sections A, C, and D of the general
antidumping duty questionnaire to Eastwing, along with the standard
importer questionnaire for new shipper reviews. Eastwing submitted its
response to section A of the questionnaire on November 21, 2005, and
subsequently submitted its response to sections C, D, and the importer
questionnaire on November 25, 2005. On December 6, 2005, we issued our
first supplemental questionnaire for sections A, C and D; Eastwing
filed its response to this supplemental questionnaire on December 20,
2005. On December 14, 2005, we sent a supplemental questionnaire to
Eastwing's importer; Eastwing's importer filed its response on December
22, 2005.
On January 12, 2006, we sent Eastwing a second supplemental
questionnaire for sections A, C, and D, and Eastwing submitted its
response on January 26, 2006. We issued a third supplemental
questionnaire to Eastwing, covering sections A, C, and D, as well as a
question for Eastwing's importer, on March 23, 2006. Eastwing filed its
response to this supplemental questionnaire (including a response to
the question for the importer) on April 3, 2006.
Surrogate Country and Values
On November 30, 2005, we requested from the Office of Policy a
memorandum listing surrogate countries. We received a list of surrogate
countries on December 16, 2005, and in a letter dated December 19,
2005, notified parties of the opportunity to submit comments on
surrogate country selection. Additionally, in the same letter, we also
provided interested parties an opportunity to submit surrogate value
comments. No party submitted surrogate country selection comments. On
January 20, 2006, we issued our surrogate country selection memorandum.
See Memorandum to the File from Matthew Renkey, Senior Analyst, through
Alex Villanueva, Program Manager, Office 9, and Jim Doyle, Director,
Office 9: Antidumping Duty New Shipper Review of Certain Preserved
Mushrooms from the People's Republic of China: Selection of a Surrogate
Country, dated January 20, 2006 (``Surrogate Country Memo''). To date,
no party has submitted comments on surrogate values.
Period of Review
The POR covers February 1, 2005, through August 15, 2005.
Scope of the Order
The products covered by this order are certain preserved mushrooms,
whether imported whole, sliced, diced, or as stems and pieces. The
certain preserved mushrooms covered under this order are the species
Agaricus bisporus and Agaricus bitorquis. ``Certain Preserved
Mushrooms'' refer to mushrooms that have been prepared or preserved by
cleaning, blanching, and sometimes slicing or cutting. These mushrooms
are then packed and heated in containers including, but not limited to,
cans or glass jars in a suitable liquid medium, including, but not
limited to, water, brine, butter or butter sauce. Certain preserved
mushrooms may be imported whole, sliced, diced, or as stems and pieces.
Included within the scope of this order are ``brined'' mushrooms, which
are presalted and packed in a heavy salt solution to provisionally
preserve them for further processing.
Excluded from the scope of this order are the following: (1) All
other species of mushroom, including straw mushrooms; (2) all fresh and
chilled mushrooms, including ``refrigerated'' or ``quick blanched
mushrooms''; (3) dried mushrooms; (4) frozen mushrooms; and (5)
``marinated,'' ``acidified,'' or ``pickled'' mushrooms, which are
prepared or preserved by means of
[[Page 38618]]
vinegar or acetic acid, but may contain oil or other additives.\1\
---------------------------------------------------------------------------
\1\ On June 19, 2000, the Department affirmed that
``marinated,'' ``acidified,'' or ``pickled'' mushrooms containing
less than 0.5 percent acetic acid are within the scope of the
antidumping duty order. See ``Recommendation Memorandum-Final Ruling
of Request by Tak Fat, et al. for Exclusion of Certain Marinated,
Acidified Mushrooms from the Scope of the Antidumping Duty Order on
Certain Preserved Mushrooms from the People's Republic of China,''
dated June 19, 2000. On February 9, 2005, this decision was upheld
by the United States Court of Appeals for the Federal Circuit. See
Tak Fat v. United States, 39C F.3d 1378 (Fed. Cir. 2005).
---------------------------------------------------------------------------
The merchandise subject to this order is classifiable under
subheadings: 2003.10.0127, 2003.10.0131, 2003.10.0137, 2003.10.0143,
2003.10.0147, 2003.10.0153 and 0711.51.0000 of the Harmonized Tariff
Schedule of the United States (``HTSUS''). Although the HTSUS
subheadings are provided for convenience and customs purposes, the
written description of the scope of this order is dispositive.
Verification
On April 4, 2006, we issued the verification outline to Eastwing.
The Department conducted verification of the questionnaire responses
submitted by Eastwing at its office in Nanning, PRC from April 17-18,
2006, and at its producer's factory in Raoping, PRC from April 20-21,
2006. We used standard verification procedures, including on-site
inspection of the manufacturer's and exporter's facilities, and
examination of relevant sales and financial records. Our verification
results are outlined in the verification report, which is being issued
concurrently with this notice. For further discussion, see Memorandum
to the File from Matthew Renkey, Senior Analyst, Office 9, through Alex
Villanueva, Program Manager, Office 9: Verification of the Sales
Response of Guangxi Eastwing Trading Co., Ltd. and the Factors of
Production Response of Raoping CXF Foods, Inc. in the Antidumping Duty
New Shipper Review of Certain Preserved Mushrooms from the People's
Republic of China, dated June 27, 2006, (``Eastwing Verification
Report'').
Consistent with the Department's practice, we investigated the bona
fide nature of the sale made by Eastwing for this new shipper review.
We found that Eastwing's new shipper sale was made on a bona fide
basis. Based on our investigation into the bona fide nature of the
sales, the questionnaire responses submitted by each company, and our
verification thereof, as well as Eastwing's eligibility for a separate
rate (see below) and the Department's preliminary determination that
Eastwing was not affiliated with any exporter or producer that had
previously shipped subject merchandise to the United States, we
preliminarily determine that the respondent has met the requirements to
qualify as a new shipper during the POR. Therefore, for purposes of
these preliminary results of the review, we are treating Eastwing's
sale of subject merchandise to the United States as an appropriate
transaction for this new shipper review. See Memorandum from Matthew
Renkey, Senior Analyst, Office 9, through Alex Villanueva, Program
Manager, Office 9, to James C. Doyle, Office Director, Office 9: Bona
Fide Nature of the Sale in the Antidumping Duty New Shipper Review of
Certain Preserved Mushrooms: Guangxi Eastwing Trading Co., Ltd., dated
June 27, 2006 (``Eastwing Prelim Bona Fide Memo''). As stated in the
Eastwing Prelim Bona Fide Memo, we will continue to examine certain
aspects of Eastwing's entry of subject merchandise.
Separate Rates
The Department has treated the PRC as a non-market economy
(``NME'') country in all previous antidumping cases. See, e.g., Final
Determination of Sales at Less Than Fair Value and Final Partial
Affirmative Determination of Critical Circumstances: Diamond Sawblades
and Parts Thereof from the People's Republic of China, 71 FR 29303 (May
22, 2006).In accordance with section 771(18)(C)(i) of the Act, any
determination that a foreign country is an NME country shall remain in
effect until revoked by the administering authority. There is no
evidence on the record suggesting that this determination should be
changed. Therefore, we treated the PRC as an NME country for purposes
of this review and calculated NV by valuing the factors of production
(``FOP'') in a surrogate country. It is the Department's policy to
assign all exporters of the merchandise subject to review, located in
NME countries, a single antidumping duty rate unless an exporter can
demonstrate an absence of governmental control, both in law (de jure)
and in fact (de facto), with respect to its export activities. To
establish whether an exporter is sufficiently independent of
governmental control to be entitled to a separate rate, the Department
analyzes the exporter using the criteria established in the Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China, 56 FR 20588 (May 6, 1991) (``Sparklers''),
as adopted and amplified in the Final Determination of Sales at Less
Than Fair Value: Silicon Carbide from the People's Republic of China,
59 FR 22585, 22586-87 (May 2, 1994) (``Silicon Carbide''). Under the
separate rates criteria established in these cases, the Department
assigns separate rates to NME exporters only if they can demonstrate
the absence of both de jure and de facto governmental control over
their export activities.
Absence of De Jure Control
Evidence supporting, though not requiring, a finding of de jure
absence of government control over export activities includes: (1) an
absence of restrictive stipulations associated with the individual
exporter's business and export licenses; (2) any legislative enactments
decentralizing control of companies; and (3) any other formal measures
by the government decentralizing control of companies. See Sparklers at
20589.
In the instant review, Eastwing submitted a complete response to
the separate rates section of the Department's questionnaire. The
evidence submitted in the instant review by Eastwing includes
government laws and regulations on corporate ownership and control,
business licenses, and narrative information regarding the company's
operations and selection of management. See Eastwing Verification
Report at Exhibits 2, 3, and 6. The evidence provided by Eastwing
supports a finding of a de jure absence of governmental control over
their export activities because: (1) there are no controls on exports
of subject merchandise, such as quotas applied to, or licenses required
for, exports of the subject merchandise to the United States; and (2)
the subject merchandise does not appear on any government list
regarding export provisions or export licensing.
Absence of De Facto Control
The absence of de facto governmental control over exports is based
on whether the respondent: (1) sets its own export prices independent
of the government and other exporters; (2) retains the proceeds from
its export sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) has the authority to
negotiate and sign contracts and other agreements; and (4) has autonomy
from the government regarding the selection of management. See Silicon
Carbide at 22587; Sparklers at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's Republic of
[[Page 38619]]
China, 60 FR 22544, 22545 (May 8, 1995).
In its questionnaire responses, Eastwing submitted evidence
demonstrating an absence of de facto governmental control over its
export activities. Specifically, this evidence indicates that: (1) the
company sets its own export prices independent of the government and
without the approval of a government authority; (2) the company retains
the proceeds from its sales and makes independent decisions regarding
the disposition of profits or financing of losses; (3) the company has
a general manager with the authority to negotiate and bind the company
in an agreement; (4) the general manager is selected by the board of
directors, and the general manager appoints the deputy managers and the
manager of each department; and (5) there is no restriction on the
company's use of export revenues. Therefore, we have preliminarily
found that Eastwing has established prima facie that it qualifies for a
separate rate under the criteria established by Silicon Carbide and
Sparklers.
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base normal value (``NV''),
in most circumstances, on the NME producer's factors of production,
valued in a surrogate market-economy country or countries considered to
be appropriate by the Department. In accordance with section 773(c)(4)
of the Act, in valuing the factors of production, the Department shall
utilize, to the extent possible, the prices or costs of factors of
production in one or more market-economy countries that are at a level
of economic development comparable to that of the NME country and are
significant producers of comparable merchandise. The sources of the
surrogate values we have used in this investigation are discussed under
the ``Normal Value'' section below.
The Department determined that India, Sri Lanka, Indonesia, the
Philippines, and Egypt are countries comparable to the PRC in terms of
economic development. See Memorandum from Ron Lorentzen, Director,
Office of Policy, to Alex Villanueva, Program Manager, Office 9; New
Shipper Review of Certain Preserved Mushrooms from the People's
Republic of China (PRC): Request for a List of Surrogate Countries,
dated December 16, 2005. Because of India's and Indonesia's relative
levels of production, and consistent with worldwide characteristics of
frozen shrimp production, these countries were selected as significant
producers of comparable merchandise. See Surrogate Country Memo at 4.
The Department selects an appropriate surrogate country based on the
availability and reliability of data from the countries. See Department
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country
Selection Process (``Policy Bulletin''), dated March 1, 2004. In this
case, we have found that India is a significant producer of comparable
merchandise, is at a similar level of economic development pursuant to
section 773(c)(4) of the Act, and has publicly available and reliable
data. See Surrogate Country Memo.
U.S. Price
In accordance with section 772(a) of the Act, we calculated the
export price (``EP'') for sales to the United States for Eastwing
because the first sale to an unaffiliated party was made before the
date of importation and the use of constructed EP (``CEP'') was not
otherwise warranted. We calculated EP based on the price to
unaffiliated purchasers in the United States. In accordance with
section 772(c) of the Act, as appropriate, we deducted from the
starting price to unaffiliated purchasers foreign inland freight and
brokerage and handling. For Eastwing, each of these services was either
provided by an NME vendor or paid for using an NME currency. Thus, we
based the deduction of these movement charges on surrogate values. See
Memorandum from Matthew Renkey, Senior Analyst, through Alex
Villanueva, Program Manager, Office 9, to the File; New Shipper Review
of Certain Preserved Mushrooms from the People's Republic of China:
Surrogate Values for the Preliminary Results, dated June 27, 2006
(``Surrogate Values Memo'') for details regarding the surrogate values
for movement expenses.
Normal Value
In accordance with section 773(c) of the Act, we calculated NV
based on factors of production (``FOP'') reported by the Respondents
for the POR. To calculate NV, we valued the reported FOP by multiplying
the per-unit factor quantities by publicly available Indian surrogate
values. In selecting surrogate values, we considered the quality,
specificity, and contemporaneity of the available values. As
appropriate, we adjusted the value of material inputs to account for
delivery costs. Where appropriate, we increased Indian surrogate values
by surrogate inland freight costs. We calculated these inland freight
costs using the shorter of the reported distances from the PRC port to
the PRC factory, or from the domestic supplier to the factory. This
adjustment is in accordance with the United States Court of Appeals for
the Federal Circuit's (``CAFC'') decision in Sigma Corp. v. United
States, 117 F. 3d 1401, 1407-1408 (Fed.Cir. 1997). For those values not
contemporaneous with the POR, we adjusted for inflation or deflation
using data published in the International Monetary Fund's International
Financial Statistics. Imports from Korea, Thailand, and Indonesia were
excluded from the surrogate country import data due to generally
available export subsidies. See China Nat'l Mach. Import & Export Corp.
v. United States, CIT 01-1114, 293 F. Supp. 2d 1334 (CIT 2003), aff'd
104 Fed. Appx. 183 (Fed. Cir. 2004) and Certain Cut-to-Length Carbon
Steel Plate from Romania: Notice of Final Results and Final Partial
Rescission of Antidumping Duty Administrative Review, 70 FR 12651
(March 15, 2005) and accompanying Issues and Decision Memorandum at
Comment 4. Furthermore, we disregarded prices from NME countries.
Finally, imports that were labeled as originating from an
``unspecified'' country were excluded from the average value because
the Department could not be certain that they were not from either an
NME country or a country with general export subsidies. Finally, we
converted the surrogate values to U.S. dollars as appropriate, using
the official exchange rate recorded on the dates of sale of subject
merchandise in this case, obtained from the Import Administration's
website at https://www.ia.ita.doc.gov/exchange/. For further
detail, see the Surrogate Values Memo.
Preliminary Results of Review
We preliminarily determine that the following margin exists during
the period February 1, 2005, through August 15, 2005:
Certain Preserved Mushrooms from the PRC
------------------------------------------------------------------------
Weighted-Average
Exporter/Manufacturer Margin (Percent)
------------------------------------------------------------------------
Guangxi Eastwing Trading Co., Ltd./Raoping CXF 104.32
Foods, Inc.........................................
------------------------------------------------------------------------
Public Comment
The Department will disclose to parties to this proceeding the
calculations performed in reaching the preliminary results within ten
days of the date of announcement of these
[[Page 38620]]
preliminary results. An interested party may request a hearing within
30 days of publication of these preliminary results. See 19 CFR
351.310(c). Interested parties may submit written comments (case
briefs) within 30 days of publication of the preliminary results and
rebuttal comments (rebuttal briefs), which must be limited to issues
raised in the case briefs, within five days after the time limit for
filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d).
Parties who submit arguments are requested to submit with the argument:
(1) a statement of the issue; (2) a brief summary of the argument; and
(3) a table of authorities. Further, the Department requests that
parties submitting written comments provide the Department with a
diskette containing the public version of those comments. Unless the
deadline is extended pursuant to section 751(a)(3)(A) of the Act, the
Department will issue the final results of this new shipper review,
including the results of our analysis of the issues raised by the
parties in their comments, within 120 days of publication of these
preliminary results. The assessment of antidumping duties on entries of
merchandise covered by this review and future deposits of estimated
duties shall be based on the final results of this review.
Assessment Rates
Upon issuing the final results of the review, the Department shall
determine, and CBP shall assess and liquidate, antidumping duties on
all appropriate entries. The Department will issue appropriate
appraisement instructions for the companies subject to this review
directly to CBP within 15 days of publication of the final results of
this review. Pursuant to 19 CFR 351.212(b)(1), we will calculate
importer-specific ad valorem duty assessment rates based on the ratio
of the total amount of the dumping margins calculated for the examined
sales to the total entered value of those same sales. We will instruct
CBP to assess antidumping duties on all appropriate entries covered by
this review if any importer-specific assessment rate calculated in the
final results of this review is above de minimis.
Cash Deposit Requirements
Upon completion of this review, we will require cash deposits at
the rate established in the final results as further described below.
Bonding will no longer be permitted to fulfill security
requirements for shipments of certain preserved mushrooms from the PRC
produced by CXF and exported by Eastwing that are entered, or withdrawn
from warehouse, for consumption on or after the publication date of the
final results of this new shipper review. See 19 CFR 351.214(e). The
following cash deposit requirements will be effective upon publication
of the final results of this new shipper review for all shipments of
subject merchandise from Eastwing entered, or withdrawn from warehouse,
for consumption on or after the publication date: (1) for subject
merchandise manufactured by CXF and exported by Eastwing, the cash
deposit rate will be the rate established in the final results of this
review, except that no cash deposit will be required if the cash
deposit rate calculated in the final results is zero or de minimis; and
(2) for subject merchandise exported by Eastwing but not manufactured
by CXF, the cash deposit rate will continue to be the PRC-wide rate
(i.e., 198.63 percent); and (3) for subject merchandise produced by CXF
but not exported by Eastwing, the cash deposit rate will be the rate
applicable to the exporter. These requirements, when imposed, shall
remain in effect until publication of the final results of the next
administrative review.
Notification to Importers
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This new shipper review and notice are in accordance with sections
751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR
351.214(h)(i).
Dated: June 27, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-10667 Filed 7-6-06; 8:45 am]
BILLING CODE 3510-DS-S