Certain Preserved Mushrooms From the People's Republic of China: Preliminary Results of Antidumping Duty New Shipper Reviews, 66729-66734 [2010-27427]

Download as PDF WReier-Aviles on DSKGBLS3C1PROD with NOTICES Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices States and abroad that they should cease dealing with the Respondents in export transactions involving items subject to the EAR. It is therefore ordered: First, that, Orion Air, S.L., Canada Real de Merinas, 7 Edificio 5, 3’A, Eissenhower business center, 28042 Madrid, Spain, and Ad. de las Cortes Valencianas no 37, Esc.A Puerta 4546015 Valencia, Spain, and when acting for or on its behalf, any of its successors, assigns, agents, or employees; and Syrian Pearl Airlines, Damascus International Airport, Damascus, Syria, and when acting on its behalf, any of its successors, assigns, agents, or employees (each a ‘‘Denied Person’’ and collectively the ‘‘Denied Persons’’) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as ‘‘item’’) exported or to be exported from the United States that is subject to the Export Administration Regulations (‘‘EAR’’), or in any other activity subject to the EAR including, but not limited to: A. Applying for, obtaining, or using any license, license exception, or export control document; B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR; or C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the EAR, or in any other activity subject to the EAR. Second, that no person may, directly or indirectly, do any of the following: A. Export or re-export to or on behalf of any Denied Person any item subject to the EAR; B. Take any action that facilitates the acquisition or attempted acquisition by any Denied Person of the ownership, possession, or control of any item subject to the EAR that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby any Denied Person acquires or attempts to acquire such ownership, possession or control; C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from any Denied Person of any item subject to the EAR that has been exported from the United States; VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 D. Obtain from any Denied Person in the United States any item subject to the EAR with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or E. Engage in any transaction to service any item subject to the EAR that has been or will be exported from the United States and which is owned, possessed or controlled by any Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by any Denied Person if such service involves the use of any item subject to the EAR that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing. Third, that after notice and opportunity for comment as provided in section 766.23 of the EAR, any other person, firm, corporation, or business organization related to any of the Respondents by affiliation, ownership, control, or position of responsibility in the conduct of trade or related services may also be made subject to the provisions of this Order. Fourth, that this Order does not prohibit any export, re-export, or other transaction subject to the EAR where the only items involved that are subject to the EAR are the foreign-produced direct product of U.S.-origin technology. In accordance with the provisions of Section 766.24(e) of the EAR, the Respondents may, at any time, appeal this Order by filing a full written statement in support of the appeal with the Office of the Administrative Law Judge, U.S. Coast Guard ALJ Docketing Center, 40 South Gay Street, Baltimore, Maryland 21202–4022. BIS may seek renewal of this Order by filing a written request with the Assistant Secretary of Commerce for Export Enforcement in accordance with the provisions of Section 766.24(d) of the Regulations, which currently provides that such a written renewal request must be submitted not later than 20 days before the expiration date. The Respondents may oppose a request to renew this Order by doing so in accordance with Section 766.24(d), including filing a written submission with the Assistant Secretary for Export Enforcement, supported by appropriate evidence. Any opposition ordinarily must be received not later than seven days before the expiration date of the Order. Notice of the issuance of this Order shall be given to Respondents in accordance with Sections 766.5(b). This Order also shall be published in the Federal Register. PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 66729 This Order is effective upon issuance and shall remain in effect for 180 days. Issued this 22nd day of October 2010. David W. Mills, Assistant Secretary of Commerce for Export Enforcement. [FR Doc. 2010–27351 Filed 10–28–10; 8:45 am] BILLING CODE 3510–DT–P DEPARTMENT OF COMMERCE International Trade Administration [A–570–851] Certain Preserved Mushrooms From the People’s Republic of China: Preliminary Results of Antidumping Duty New Shipper Reviews Import Administration, International Trade Administration, Department of Commerce. DATES: Effective Date: October 29, 2010. SUMMARY: The Department of Commerce (the Department) is currently conducting two new shipper reviews (NSRs) of the antidumping duty order on certain preserved mushrooms from the People’s Republic of China (PRC) 1 covering the period of review (POR) February 1, 2009, through January 31, 2010. We preliminarily determine that the sales made by Shandong Fengyu Edible Fungus Co., Ltd. (Fengyu) and by Zhangzhou Tongfa Foods Industry Co., Ltd. (Tongfa), were not made below normal value (NV). If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to liquidate entries of merchandise exported by Fengyu and Tongfa during the POR without regard to antidumping duties. FOR FURTHER INFORMATION CONTACT: Fred Baker, Scott Hoefke, 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, (202) 482– 4947 or (202) 482–0649, respectively. SUPPLEMENTARY INFORMATION: AGENCY: Background On February 26, 2010, pursuant to section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (the ‘‘Act’’), and 19 CFR 351.214(c), the Department received NSR requests from Fengyu and Tongfa. The Department determined 1 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), (the ‘‘Order’’). E:\FR\FM\29OCN1.SGM 29OCN1 66730 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices that both of these requests had not been properly filed due to bracketing issues, and therefore returned them on March 19, 2008. On March 23, 2010, both companies resubmitted their requests. They both certified that they are the producers and exporters of the subject merchandise upon which the requests were based. On March 31, 2010, the Department initiated antidumping duty NSRs on certain preserved mushrooms from the PRC covering the two companies. See Certain Preserved Mushrooms from the People’s Republic of China: Notice of Initiation of Antidumping Duty New Shipper Reviews, 75 FR 16075 (March 31, 2010) (Initiation Notice). On April 5, 2010, the Department issued its standard antidumping questionnaire to both Fengyu and Tongfa. Between April 2010 and June 2010, Fengyu and Tongfa submitted responses to the original sections A, C, and D questionnaires and supplemental sections A, C, and D questionnaires. On July 13, 2010, the Department sent interested parties a letter requesting comments on surrogate country selection and information pertaining to valuing factors of production (FOP) in a surrogate market economy country. No party submitted surrogate country or surrogate value data. WReier-Aviles on DSKGBLS3C1PROD with NOTICES 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’’ refers 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.2 2 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,’’ VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 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 vinegar or acetic acid, but may contain oil or other additives. 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. Non-Market Economy Country Status In every case conducted by the Department involving the PRC, we have treated the PRC as a non-market economy (NME) country. See, e.g., Pure Magnesium from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 2008); and Frontseating Service Valves from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances, 74 FR 10886 (March 12, 2009). 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. See, e.g., Brake Rotors From the People’s Republic of China: Final Results and Partial Rescission of the 2004/2005 Administrative Review and Notice of Rescission of 2004/2005 New Shipper Review, 71 FR 66304 (November 14, 2006). None of the parties to this proceeding have contested such treatment. Accordingly, we calculated normal value (NV) in accordance with section 773(c) of the Act, which applies to NME countries. Separate Rates Determination A designation of a country as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of the Act. Accordingly, there is a rebuttable presumption that all companies within the PRC are subject to government control, and thus should be dated June 19, 2000. On February 9, 2005, the United States Court of Appeals for the Federal Circuit upheld this decision. See Tak Fat v. United States, 396 F.3d 1378 (Fed. Cir. 2005). PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 assessed a single antidumping duty rate. It is the Department’s policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to exports. To establish whether a company is sufficiently independent to be entitled to a separate, company-specific rate, the Department analyzes each exporting entity in an NME country under the test 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 amplified by the Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People’s Republic of China, 59 FR 22585 (May 2, 1994) (Silicon Carbide). Absence of De Jure Control The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (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, 56 FR at 20589. In this NSR, Fengyu and Tongfa submitted complete responses to the separate rates section of the Department’s questionnaire. The evidence submitted by Fengyu and Tongfa includes government laws and regulations on corporate ownership and control (i.e., the Company Law and the Foreign Trade Law of the People’s Republic of China), these companies’ individual business licenses, and narrative information regarding the companies’ operations and selection of management. The evidence provided by Fengyu and Tongfa supports a preliminary finding of a de jure absence of government control over its export activities based on the record: (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; (2) the government of the PRC has passed legislation decentralizing control of companies; and (3) there are other formal measures by the government decentralizing control of companies. See Fengyu’s March 23, 2010, submission at appendix 2 and April 30, 2010, submission at 3 and Tongfa’s March 18, 2010, submission at appendix 1 and April 30, 2010, submission at 3. E:\FR\FM\29OCN1.SGM 29OCN1 WReier-Aviles on DSKGBLS3C1PROD with NOTICES Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices Absence of De Facto Control The absence of de facto government control over exports is based on whether the company: (1) Sets its own export prices independent of the government and without the approval of a government authority; (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; (4) has autonomy from the government regarding the selection of management; and (5). See Silicon Carbide, 59 FR at 22587; Sparklers, 56 FR at 20589; and Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From the People’s Republic of China, 60 FR 22544, 22545 (May 8, 1995). In its April 30, 2010, submission, Fengyu submitted evidence demonstrating an absence of de facto government 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 owner; (5) the general manager appoints the manager of each department; and (6) there are no restrictions on the company’s use of export revenues. Therefore, we preliminarily find that Fengyu has established that it qualifies for a separate rate under the criteria established by Silicon Carbide and Sparklers. Similarly, in its April 30, 2010, submission, Tongfa also submitted evidence demonstrating an absence of de facto government 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 authority to negotiate and bind the company in an agreement; (4) company’s board of directors appoints the general manager, who appoints the senior managers; and (5) there are no restrictions on the company’s use of VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 export revenues. Therefore, we preliminarily find that Tongfa has established that it qualifies for a separate rate under the criteria established by Silicon Carbide and Sparklers. Bona Fide Analysis Consistent with the Department’s practice, we investigated the bona fide nature of the sales made by Fengyu and Tongfa for these NSRs. In evaluating whether a single sale in a NSR is commercially reasonable, and therefore bona fide, the Department considers, inter alia, such factors as: (1) Timing of the sales; (2) price and quantity; (3) the expenses arising from the transaction; (4) whether the goods were sold at a profit; and (5) whether the transaction was made on an arms-length basis. See Tianjin Tiancheng Pharmaceutical Co. v. the United States, 366 F. Supp. 2d 1246, 1250 (CIT 2005). Accordingly, the Department considers a number of factors in its bona fide analysis, ‘‘all of which may be specific to the commercial realities surrounding an alleged sale of subject merchandise.’’ See Hebei New Donghua Amino Acid Co. v. the United States, 374 F. Supp. 2d 1333, 1342 (CIT 2005). In examining Tongfa’s sales in relation to these factors, the Department observed no evidence that would indicate that this sale was not bona fide. With respect to Fengyu, there remain some unresolved discrepancies regarding the Customs Form 7501 that it submitted to the record. We will continue to investigate these discrepancies and issue a final bona fides determination along with the final results of this review. Nevertheless, for purposes of these preliminary results, we find the new shipper sales by Tongfa and Fengyu were made on a bona fide basis. See Memorandum to Richard Weible through Robert James, Program Manager, Important Administration from Scott Hoefke, International Trade Compliance Analyst, Import Administration: Bona Fide Sales Analysis of Shangdong Fengyu Edible Fungus Co., Ltd. (Fengyu) in the Antidumping Duty New Shipper Review of Certain Preserved Mushrooms from the People’s Republic of China, dated September 22, 2010; and Memorandum to Richard Weible through Robert James, Program Manager, Important Administration from Fred Baker, International Trade Compliance Analyst, Import Administration: Bona Fide Sales Analysis of Zhangzhou Tongfa Foods Industry Co., Ltd. (Tongfa) in the Antidumping Duty New Shipper Review of Certain Preserved Mushrooms PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 66731 from the People’s Republic of China, dated September 22, 2010. Based on our investigation into the bona fide nature of the sales and the questionnaire responses submitted by Fengyu and Tongfa, as well as the companies’ eligibility for separate rates (see ‘‘Separate Rates Determination’’ section (above)), we preliminarily determine that Fengyu and Tongfa have met the requirements to qualify as new shippers during this POR. Therefore, for purposes of these preliminary results of review, we are treating Fengyu’s and Tongfa’s sales of subject merchandise to the United States as appropriate transactions for these NSRs.3 Surrogate Country When the Department is investigating imports from an NME country, section 773(c)(1) of the Act directs it to base NV, in most circumstances, on the NME producer’s factors of production (FOPs), 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 FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise. The Department determined that India, Philippines, Indonesia, Thailand, Ukraine, and Peru are countries comparable to the PRC in terms of economic development.4 Moreover, it is the Department’s practice to select 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 (March 1, 2004) (Surrogate Country Policy Bulletin). In the most recently completed proceeding 3 For more detailed discussion of this issue, please see Memoranda to Richard Weible, Office Director, ‘‘Bona Fide Sales Analysis for Shandong Fengyu Edible Fungus Co., Ltd.’’ and ‘‘Bona Fide Sales Analysis for Zhangzhou Tongfa Foods Industry Co., Ltd.’’ both dated September 22, 2010. 4 See Memorandum from Carole Showers, Acting Director, Office of Policy, to Richard Weible, Director, Office 7; Subject: Request for a List of Surrogate Countries for a 2010 New Shipper Review of the Antidumping Duty Order on Certain Preserved Mushrooms from the People’s Republic of China, dated June 25, 2010. The Department notes that these six countries are part of a nonexhaustive list of countries that are at a level of economic development comparable to the PRC. See the Department’s letter to ‘‘All Interested Parties; First Administrative Review of Steel Wire Garment Hangers from the People’s Republic of China: Deadlines for Surrogate Country and Surrogate Value Comments,’’ dated March 25, 2010 at 1 and Attachment I (‘‘Surrogate Country List’’). E:\FR\FM\29OCN1.SGM 29OCN1 66732 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices WReier-Aviles on DSKGBLS3C1PROD with NOTICES involving the Order, we determined that India is comparable to the PRC in terms of economic development and has surrogate value data that are available and reliable. See Certain Preserved Mushrooms From the People’s Republic of China: Final Results of Antidumping Duty New Shipper Review, 74 FR 65520, (December 10, 2009). In the current proceeding, we received no comments regarding surrogate country selection. Since no information has been provided in these NSRs indicating that the Department should deviate from its selection of India in the most recently completed administrative review of the Order, we continue to find that India is the appropriate surrogate country. Specifically, we have selected India because it is at a level of economic development similar to the PRC, it is a significant producer of comparable merchandise, and we have reliable, publicly available data from India representing broad-market average. See 773(c)(4) of the Act; See also Memorandum to the File, through Richard Weible, Office Director, and Robert James, Program Manager, from Fred Baker, Analyst, Subject: Antidumping Duty New Shipper Review of Certain Preserved Mushrooms from the People’s Republic of China: Selection of a Surrogate Country, dated September 22, 2010. In accordance with 19 CFR 351.301(c)(3)(ii), for the final results in a NSR, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. U.S. Price In accordance with section 772(a) of the Act, we based Fengyu’s and Tongfa’s U.S. prices on export prices (EP), because their first sales to an unaffiliated purchaser were made before the date of importation and the use of constructed export price was not otherwise warranted by the facts on the record. As appropriate, we deducted foreign inland freight and foreign brokerage and handling from the starting price (or gross unit price), in accordance with section 772(c)(2) of the Act. These services were provided by NME vendors for both Fengyu’s and Tongfa’s U.S. sales. Therefore, we based the deduction of these movement charges on surrogate values. For both Fengyu and Tongfa, we valued foreign inland freight (which consisted of truck freight) using a perunit, period of review wide, average rate calculated from Indian data on the following Web site: http:// www.infobanc.com/logistics/ logtruck.htm. The logistics section of VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 this Web site contains inland freight truck rates between many large Indian cities. See Memoranda to the File, ‘‘New Shipper Review of Certain Preserved Mushroom from the People’s Republic of China: Surrogate Values for the Preliminary Results’’ (Fengyu Surrogate Values Memorandum) at Exhibit 7, and ‘‘New Shipper Review of Certain Preserved Mushroom from the People’s Republic of China: Surrogate Values for the Preliminary Results’’ (Tongfa Surrogate Values Memorandum) at Exhibit 7. We valued foreign brokerage and handling using the publicly summarized brokerage and handling expense reported in the U.S. sales listing of Indian mushroom producer, Agro Dutch Industries, Ltd. (Agro Dutch), in the 2004–2005 administrative review of Certain Preserved Mushrooms from India, which we then inflated to be contemporaneous with the POR. See Fengyu Surrogate Values Memorandum at Exhibit 8; and Tongfa Surrogate Values Memorandum at Exhibit 8. In their section A responses, both Fengyu and Tongfa stated that they intended to use the invoice date as the date of sale, stating that this was the date that best represented when the terms of sale are fixed. See Fengyu’s April 30, 2010, submission at 12; and Tongfa’s April 30, 2010, submission at 12–13. However, both Fengyu and Tongfa in their supplemental questionnaire submissions stated that they had no instances of quantity or price changes after the receipt of purchase order. See Fengyu’s June 30, 2010, submission at 3; and Tongfa’s June 30, 2010, submission at 2. Therefore, we used the contract date as the date of sale for both Fengyu and Tongfa because there were no changes to either the prices or quantities of either companies’ sales after this date, and there is no record evidence that the material terms of sale changed in anyway following the contract date for any of Fengyu’s and Tongfa’s other sales during the POR. The Department concludes that the contract date is therefore the date that best represents when Fengyu and Tongfa established the material terms of sale. See 19 CFR 351.401(i). 1. Methodology Section 773(c)(1)(B) of the Act provides that the Department shall determine the NV using an FOP methodology if the merchandise under review is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 of the Act. The Department bases NV on FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department’s normal methodologies. See, e.g., Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review and Notice of Intent to Rescind in Part, 70 FR 39744 (July 11, 2005), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People’s Republic of China: Final Results of 2003–2004 Administrative Review and Partial Rescission of Review, 71 FR 2517 (January 17, 2006). In past cases, it has been the Department’s practice to value various FOPs using import statistics of the primary selected surrogate country from World Trade Atlas (WTA), as published by Global Trade Information Services (GTIS). See Certain Preserved Mushrooms from the People’s Republic of China: Preliminary Results of Antidumping Duty New Shipper Review, 74 FR 50946, 50950 (October 2, 2009). However, in October 2009, the Department learned that the data reported in the Global Trade Atlas (GTA) software, published by GTIS, is reported to the nearest digit and thus there is not a loss of data by rounding, as there is with the data reported by the WTA software. Consequently, the Department will now obtain import statistics from GTA for valuing various FOPs. 2. Selection of Surrogate Values In selecting the ‘‘best available information for surrogate values,’’ see Section 773(c)(1) of the Act, consistent with the Department’s practice, we considered whether the information was: Publicly available; productspecific; representative of broad market average prices; contemporaneous with the POR; and free of taxes. See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004), unchanged in Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004). Where we could obtain only surrogate values that were not contemporaneous with the POR consistent with our practice, we E:\FR\FM\29OCN1.SGM 29OCN1 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices WReier-Aviles on DSKGBLS3C1PROD with NOTICES inflated the surrogate values using, where appropriate, the Indian WPI as published in International Financial Statistics by the International Monetary Fund. See e.g., Certain Preserved Mushrooms From the People’s Republic of China: Final Results of Antidumping Duty New Shipper Review, 74 FR 65520 (December 10, 2009). See Fengyu Surrogate Values Memorandum at Exhibit 2 and Tongfa Surrogate Values Memorandum at Exhibit 2. In accordance with the legislative history of the Omnibus Trade and Competitiveness Act of 1988, see Conf. Report to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess. (1988) (OTCA 1988) at 590, the Department continues to apply its long-standing practice of disregarding surrogate values if it has a reason to believe or suspect the source data may be subsidized. In this regard, the Department has previously found that it is appropriate to disregard such prices from Indonesia, South Korea and Thailand because we have determined that these countries maintain broadly available, nonindustry specific export subsidies. Based on the existence of these subsidy programs that were generally available to all exporters and producers in these countries at the time of the POR, the Department finds that it is reasonable to infer that all exporters from Indonesia, South Korea and Thailand may have benefitted from these subsidies.5 Additionally, 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. See Certain Non-Frozen Apple Juice Concentrate from the People’s Republic of China: Notice of Preliminary Results of the New Shipper Review, 75 FR 47270 (August 5, 2010) and Drill Pipe From the People’s Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Affirmative Determination of Critical Circumstances, and Postponement of 5 See, e.g., Expedited Sunset Review of the Countervailing Duty Order on Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia, 70 FR 45692 (August 8, 2005) and accompanying Issues and Decision Memorandum at page 4; CorrosionResistant Carbon Steel Flat Products from the Republic of Korea: Final Results of Countervailing Duty Administrative Review, 74 FR 2512 (January 15, 2009) and accompanying Issues and Decision Memorandum at Comment 1, pages 17, 19–20; and Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of Countervailing Duty Determination, 66 FR 50410 (October 3, 2001) and accompanying Issues and Decision Memorandum at Comment 1. VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 Final Determination, 75 FR 51004 (August 18, 2010). In accordance with section 773(c) of the Act, we calculated NV by adding the value of the FOPs, general expenses, profit, and packing costs reported by Fengyu and Tongfa. The FOPs for subject merchandise include: (1) Quantities of raw materials employed; (2) hours of labor required; (3) amounts of energy and other utilities consumed; (4) representative capital and selling costs; and (5) packing materials. We used the FOPs reported by Fengyu and Tongfa for materials, energy, labor, and packing, and valued those FOPs by multiplying the amount of the factor consumed in producing subject merchandise by the average unit surrogate value of the factor derived from the Indian surrogate values selected for their NSRs. To calculate NV, we multiplied the reported per-unit factor-consumption rates by publicly available Indian surrogate values. As appropriate we added freight costs to the surrogate values that we calculated for Fengyu’s and Tongfa’s material inputs to make these prices delivered prices. We calculated these freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. Where there were multiple domestic suppliers of a material input, we calculated a weighted-average distance after limiting each supplier’s distance to no more than the distance from the nearest seaport to Fengyu and Tongfa. This adjustment is in accordance with the decision by the Court of Appeals for the Federal Circuit in Sigma Corp. v. United States, 117 F.3d 1401, 1407–1408 (Fed. Cir. 1997). We increased the calculated costs of the FOPs for surrogate general expenses and profit. See Fengyu Surrogate Values Memorandum at Exhibit 9 and Tongfa Surrogate Values Memorandum at Exhibit 9. Indian surrogate values were denominated in Rupees and were converted to USD using the applicable average exchange rate based on exchange rate data from the Department’s Web site. For further details regarding the surrogate values used for these preliminary results, see Fengyu’s Surrogate Value Memo and Tongfa’s Surrogate Value Memo. On May 14, 2010, the Court of Appeals for the Federal Circuit (‘‘CAFC’’) in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (CAFC 2010) (‘‘Dorbest IV’’), found that the PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 66733 ‘‘{regression-based} method for calculating wage rates {as stipulated by 19 CFR 351.408(c)(3)} uses data not permitted by {the statutory requirements laid out in section 773 of the Act (i.e., 19 U.S.C. 1677b(c))}.’’ The Department is continuing to evaluate options for determining labor values in light of the recent CAFC decision. However, for these preliminary results, we have calculated an hourly wage rate to use in valuing respondents’ reported labor input by averaging industryspecific earnings and/or wages in countries that are economically comparable to the PRC and that are significant producers of comparable merchandise. For the preliminary results of this administrative review, the Department is valuing labor using a simple average industry-specific wage rate using earnings or wage data reported under Chapter 5B by the International Labor Organization (‘‘ILO’’). To achieve an industry-specific labor value, we relied on industry-specific labor data from the countries we determined to be both economically comparable to the PRC, and significant producers of comparable merchandise. A full description of the industry-specific wage rate calculation methodology is provided in the Prelim Surrogate Value Memo. The Department calculated a simple average industryspecific wage rate of $1.36 for these preliminary results. Specifically, for this review, the Department has calculated the wage rate using a simple average of the data provided to the ILO under SubClassification 15 of the ISIC-Revision 3 standard by countries determined to be both economically comparable to the PRC and significant producers of comparable merchandise. The Department finds the two-digit description under ISIC-Revision 3 (‘‘Manufacture of Food Products and Beverages’’) to be the best available wage rate surrogate value on the record because it is specific and derived from industries that produce merchandise comparable to the subject merchandise. Consequently, we averaged the ILO industry-specific wage rate data or earnings data available from the following countries found to be economically comparable to the PRC and are significant producers of comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru, Philippines, Thailand, and Ukraine. For further information on the calculation of the wage rate, see Prelim Surrogate Values Memo. Preliminary Results of the Review The Department has determined that the following preliminary dumping E:\FR\FM\29OCN1.SGM 29OCN1 66734 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices submission of publicly available information to value factors of production under 19 CFR 351.408(c) is 20 days after the date of publication of CERTAIN PRESERVED MUSHROOMS the preliminary determination. In FROM THE PRC accordance with 19 CFR 351.301(c)(1), if an interested party submits factual WeightedManufacturer/exporter average margin information less than ten days before, (percent) on, or after (if the Department has Fengyu ............................ 0.00 extended the deadline) the applicable Tongfa ............................. 0.00 deadline for submission of such factual information, an interested party has ten days to submit factual information to Public Comment rebut, clarify, or correct the factual The Department will disclose to information no later than ten days after parties to this proceeding the such factual information is served on calculations performed in reaching the the interested party. However, the preliminary results within five days of Department notes that 19 CFR the date of publication of these 351.301(c)(1) permits new information preliminary results. See 19 CFR only insofar as it rebuts, clarifies, or 351.224(b). Interested parties may corrects information recently placed on submit written comments (case briefs) the record. See, e.g., Glycine from the within 30 days of publication of the People’s Republic of China: Final preliminary results and rebuttal Results of Antidumping Duty comments (rebuttal briefs) within five Administrative Review and Final days after the time limit for filing case Rescission, in Part, 72 FR 58809 briefs. See 19 CFR 351.309(c)(1)(ii) and (October 17, 2007) and accompanying 351.309(d)(1). Pursuant to 19 CFR Issues and Decision Memorandum at 351.309(d)(2), rebuttal briefs must be Comment 2. Furthermore, the limited to issues raised in the case Department generally will not accept briefs. Parties who submit arguments are business proprietary information in requested to submit with the argument: either the surrogate value submissions (1) A statement of the issue; (2) a brief or the rebuttals thereto, as the regulation summary of the argument; and (3) a regarding the submission of surrogate table of authorities. Further, the values allows only for the submission of Department requests that parties publicly available information. submitting written comments provide Assessment Rates the Department with a diskette Upon issuing the final results of the containing the public version of those review, the Department shall determine, comments. and CBP shall assess, antidumping Any interested party may request a hearing within 30 days of publication of duties on all appropriate entries. The Department intends to issue assessment this notice. See 19 CFR 351.310(c). Interested parties who wish to request a instructions to CBP 15 days after the date of publication of the final results of hearing or to participate if one is review. Pursuant to 19 CFR requested, must submit a written 351.212(b)(1), we will calculate request to the Assistant Secretary for importer-specific ad valorem duty Import Administration within 30 days assessment rates based on the ratio of of publication of this notice. Requests the total amount of the dumping should contain: (1) The party’s name, margins calculated for the examined address, and telephone number; (2) the sales to the total entered value of those number of participants; and (3) a list of same sales. We will instruct CBP to issues to be discussed. See 19 CFR assess antidumping duties on all 351.310(c). Issues raised in the hearing appropriate entries covered by this will be limited to those raised in the review if any importer-specific briefs. Unless the deadline is extended assessment rate calculated in the final pursuant to section 751(a)(2)(B)(iv) of results of this review is above de the Act, the Department will issue the minimis. However, the final results of final results of these NSRs, including this review shall be the basis for the the results of our analysis of the issues assessment of antidumping duties on raised by the parties in their comments, entries of merchandise covered by the within 90 days after issuance of these final results of these reviews and for preliminary results. future deposits of estimated duties, where applicable. Deadline for Submission of Publicly WReier-Aviles on DSKGBLS3C1PROD with NOTICES margins exist for the period February 1, 2009 through January 31, 2010: Available Surrogate Value Information In accordance with 19 CFR 351.301(c)(3), the deadline for VerDate Mar<15>2010 15:23 Oct 28, 2010 Jkt 223001 Cash Deposit Requirements The following cash deposit requirements, when imposed, will be PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 effective upon publication of the final results of these NSRs for all shipments of subject merchandise exported by Fengyu or Tongfa and entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For subject merchandise manufactured and exported by Fengyu or manufactured and exported by Tongfa, the cash-deposit rate will be that established in the final results of this review; (2) for subject merchandise exported by Fengyu or Tongfa but not manufactured by Fengyu or Tongfa, respectively, the cash deposit rate will continue to be the PRC-wide rate (i.e., 198.63 percent); and (3) for subject merchandise manufactured by Fengyu or Tongfa, but exported by any other party, the cash deposit rate will be the rate applicable to the exporter. If the cash deposit rates calculated for Fengyu or Tongfa in the final results is zero or de minimis:, a zero cash deposit will be required for entries of subject merchandise both produced and exported by Fengyu or Tongfa. These cash deposit requirements, when imposed, shall remain in effect until further notice. 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. These NSRs and notice are in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(i). Dated: October 22, 2010. Ronald Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–27427 Filed 10–28–10; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Institute of Standards and Technology [Docket No.: 101006483–0483–02] Proposed Voluntary Product Standard PS 2–10, Structural Plywood National Institute of Standards and Technology, Commerce. AGENCY: E:\FR\FM\29OCN1.SGM 29OCN1

Agencies

[Federal Register Volume 75, Number 209 (Friday, October 29, 2010)]
[Notices]
[Pages 66729-66734]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27427]


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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 Antidumping Duty New Shipper Reviews

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

DATES:  Effective Date: October 29, 2010.
SUMMARY: The Department of Commerce (the Department) is currently 
conducting two new shipper reviews (NSRs) of the antidumping duty order 
on certain preserved mushrooms from the People's Republic of China 
(PRC) \1\ covering the period of review (POR) February 1, 2009, through 
January 31, 2010. We preliminarily determine that the sales made by 
Shandong Fengyu Edible Fungus Co., Ltd. (Fengyu) and by Zhangzhou 
Tongfa Foods Industry Co., Ltd. (Tongfa), were not made below normal 
value (NV). If these preliminary results are adopted in our final 
results of this review, we will instruct U.S. Customs and Border 
Protection (CBP) to liquidate entries of merchandise exported by Fengyu 
and Tongfa during the POR without regard to antidumping duties.
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    \1\ 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), (the ``Order'').

FOR FURTHER INFORMATION CONTACT: Fred Baker, Scott Hoefke, 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: 
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(202) 482-2924, (202) 482-4947 or (202) 482-0649, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On February 26, 2010, pursuant to section 751(a)(2)(B)(i) of the 
Tariff Act of 1930, as amended (the ``Act''), and 19 CFR 351.214(c), 
the Department received NSR requests from Fengyu and Tongfa. The 
Department determined

[[Page 66730]]

that both of these requests had not been properly filed due to 
bracketing issues, and therefore returned them on March 19, 2008. On 
March 23, 2010, both companies resubmitted their requests. They both 
certified that they are the producers and exporters of the subject 
merchandise upon which the requests were based.
    On March 31, 2010, the Department initiated antidumping duty NSRs 
on certain preserved mushrooms from the PRC covering the two companies. 
See Certain Preserved Mushrooms from the People's Republic of China: 
Notice of Initiation of Antidumping Duty New Shipper Reviews, 75 FR 
16075 (March 31, 2010) (Initiation Notice).
    On April 5, 2010, the Department issued its standard antidumping 
questionnaire to both Fengyu and Tongfa. Between April 2010 and June 
2010, Fengyu and Tongfa submitted responses to the original sections A, 
C, and D questionnaires and supplemental sections A, C, and D 
questionnaires.
    On July 13, 2010, the Department sent interested parties a letter 
requesting comments on surrogate country selection and information 
pertaining to valuing factors of production (FOP) in a surrogate market 
economy country. No party submitted surrogate country or surrogate 
value data.

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'' refers 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.\2\
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    \2\ 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, the United States Court of 
Appeals for the Federal Circuit upheld this decision. See Tak Fat v. 
United States, 396 F.3d 1378 (Fed. Cir. 2005).
---------------------------------------------------------------------------

    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 vinegar or acetic acid, but may 
contain oil or other additives.
    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.

Non-Market Economy Country Status

    In every case conducted by the Department involving the PRC, we 
have treated the PRC as a non-market economy (NME) country. See, e.g., 
Pure Magnesium from the People's Republic of China: Final Results of 
Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 
2008); and Frontseating Service Valves from the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value and Final 
Negative Determination of Critical Circumstances, 74 FR 10886 (March 
12, 2009). 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. See, e.g., Brake 
Rotors From the People's Republic of China: Final Results and Partial 
Rescission of the 2004/2005 Administrative Review and Notice of 
Rescission of 2004/2005 New Shipper Review, 71 FR 66304 (November 14, 
2006). None of the parties to this proceeding have contested such 
treatment. Accordingly, we calculated normal value (NV) in accordance 
with section 773(c) of the Act, which applies to NME countries.

Separate Rates Determination

    A designation of a country as an NME remains in effect until it is 
revoked by the Department. See section 771(18)(C) of the Act. 
Accordingly, there is a rebuttable presumption that all companies 
within the PRC are subject to government control, and thus should be 
assessed a single antidumping duty rate. It is the Department's policy 
to assign all exporters of the merchandise subject to review in NME 
countries a single rate unless an exporter can affirmatively 
demonstrate an absence of government control, both in law (de jure) and 
in fact (de facto), with respect to exports. To establish whether a 
company is sufficiently independent to be entitled to a separate, 
company-specific rate, the Department analyzes each exporting entity in 
an NME country under the test 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 amplified by the 
Notice of Final Determination of Sales at Less Than Fair Value: Silicon 
Carbide from the People's Republic of China, 59 FR 22585 (May 2, 1994) 
(Silicon Carbide).

Absence of De Jure Control

    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (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, 56 FR at 20589. In this NSR, Fengyu and Tongfa submitted 
complete responses to the separate rates section of the Department's 
questionnaire. The evidence submitted by Fengyu and Tongfa includes 
government laws and regulations on corporate ownership and control 
(i.e., the Company Law and the Foreign Trade Law of the People's 
Republic of China), these companies' individual business licenses, and 
narrative information regarding the companies' operations and selection 
of management. The evidence provided by Fengyu and Tongfa supports a 
preliminary finding of a de jure absence of government control over its 
export activities based on the record: (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; 
(2) the government of the PRC has passed legislation decentralizing 
control of companies; and (3) there are other formal measures by the 
government decentralizing control of companies. See Fengyu's March 23, 
2010, submission at appendix 2 and April 30, 2010, submission at 3 and 
Tongfa's March 18, 2010, submission at appendix 1 and April 30, 2010, 
submission at 3.

[[Page 66731]]

Absence of De Facto Control

    The absence of de facto government control over exports is based on 
whether the company: (1) Sets its own export prices independent of the 
government and without the approval of a government authority; (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; (4) has autonomy from the government regarding the 
selection of management; and (5). See Silicon Carbide, 59 FR at 22587; 
Sparklers, 56 FR at 20589; and Final Determination of Sales at Less 
Than Fair Value: Furfuryl Alcohol From the People's Republic of China, 
60 FR 22544, 22545 (May 8, 1995).
    In its April 30, 2010, submission, Fengyu submitted evidence 
demonstrating an absence of de facto government 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 owner; (5) the 
general manager appoints the manager of each department; and (6) there 
are no restrictions on the company's use of export revenues. Therefore, 
we preliminarily find that Fengyu has established that it qualifies for 
a separate rate under the criteria established by Silicon Carbide and 
Sparklers.
    Similarly, in its April 30, 2010, submission, Tongfa also submitted 
evidence demonstrating an absence of de facto government 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 authority to negotiate and bind the 
company in an agreement; (4) company's board of directors appoints the 
general manager, who appoints the senior managers; and (5) there are no 
restrictions on the company's use of export revenues. Therefore, we 
preliminarily find that Tongfa has established that it qualifies for a 
separate rate under the criteria established by Silicon Carbide and 
Sparklers.

Bona Fide Analysis

    Consistent with the Department's practice, we investigated the bona 
fide nature of the sales made by Fengyu and Tongfa for these NSRs. In 
evaluating whether a single sale in a NSR is commercially reasonable, 
and therefore bona fide, the Department considers, inter alia, such 
factors as: (1) Timing of the sales; (2) price and quantity; (3) the 
expenses arising from the transaction; (4) whether the goods were sold 
at a profit; and (5) whether the transaction was made on an arms-length 
basis. See Tianjin Tiancheng Pharmaceutical Co. v. the United States, 
366 F. Supp. 2d 1246, 1250 (CIT 2005). Accordingly, the Department 
considers a number of factors in its bona fide analysis, ``all of which 
may be specific to the commercial realities surrounding an alleged sale 
of subject merchandise.'' See Hebei New Donghua Amino Acid Co. v. the 
United States, 374 F. Supp. 2d 1333, 1342 (CIT 2005). In examining 
Tongfa's sales in relation to these factors, the Department observed no 
evidence that would indicate that this sale was not bona fide. With 
respect to Fengyu, there remain some unresolved discrepancies regarding 
the Customs Form 7501 that it submitted to the record. We will continue 
to investigate these discrepancies and issue a final bona fides 
determination along with the final results of this review. 
Nevertheless, for purposes of these preliminary results, we find the 
new shipper sales by Tongfa and Fengyu were made on a bona fide basis. 
See Memorandum to Richard Weible through Robert James, Program Manager, 
Important Administration from Scott Hoefke, International Trade 
Compliance Analyst, Import Administration: Bona Fide Sales Analysis of 
Shangdong Fengyu Edible Fungus Co., Ltd. (Fengyu) in the Antidumping 
Duty New Shipper Review of Certain Preserved Mushrooms from the 
People's Republic of China, dated September 22, 2010; and Memorandum to 
Richard Weible through Robert James, Program Manager, Important 
Administration from Fred Baker, International Trade Compliance Analyst, 
Import Administration: Bona Fide Sales Analysis of Zhangzhou Tongfa 
Foods Industry Co., Ltd. (Tongfa) in the Antidumping Duty New Shipper 
Review of Certain Preserved Mushrooms from the People's Republic of 
China, dated September 22, 2010.
    Based on our investigation into the bona fide nature of the sales 
and the questionnaire responses submitted by Fengyu and Tongfa, as well 
as the companies' eligibility for separate rates (see ``Separate Rates 
Determination'' section (above)), we preliminarily determine that 
Fengyu and Tongfa have met the requirements to qualify as new shippers 
during this POR. Therefore, for purposes of these preliminary results 
of review, we are treating Fengyu's and Tongfa's sales of subject 
merchandise to the United States as appropriate transactions for these 
NSRs.\3\
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    \3\ For more detailed discussion of this issue, please see 
Memoranda to Richard Weible, Office Director, ``Bona Fide Sales 
Analysis for Shandong Fengyu Edible Fungus Co., Ltd.'' and ``Bona 
Fide Sales Analysis for Zhangzhou Tongfa Foods Industry Co., Ltd.'' 
both dated September 22, 2010.
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Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base NV, in most 
circumstances, on the NME producer's factors of production (FOPs), 
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 FOPs, the Department shall utilize, to the 
extent possible, the prices or costs of FOPs in one or more market 
economy countries that are: (1) At a level of economic development 
comparable to that of the NME country; and (2) significant producers of 
comparable merchandise.
    The Department determined that India, Philippines, Indonesia, 
Thailand, Ukraine, and Peru are countries comparable to the PRC in 
terms of economic development.\4\ Moreover, it is the Department's 
practice to select 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 (March 1, 2004) (Surrogate Country Policy Bulletin). 
In the most recently completed proceeding

[[Page 66732]]

involving the Order, we determined that India is comparable to the PRC 
in terms of economic development and has surrogate value data that are 
available and reliable. See Certain Preserved Mushrooms From the 
People's Republic of China: Final Results of Antidumping Duty New 
Shipper Review, 74 FR 65520, (December 10, 2009). In the current 
proceeding, we received no comments regarding surrogate country 
selection. Since no information has been provided in these NSRs 
indicating that the Department should deviate from its selection of 
India in the most recently completed administrative review of the 
Order, we continue to find that India is the appropriate surrogate 
country. Specifically, we have selected India because it is at a level 
of economic development similar to the PRC, it is a significant 
producer of comparable merchandise, and we have reliable, publicly 
available data from India representing broad-market average. See 
773(c)(4) of the Act; See also Memorandum to the File, through Richard 
Weible, Office Director, and Robert James, Program Manager, from Fred 
Baker, Analyst, Subject: Antidumping Duty New Shipper Review of Certain 
Preserved Mushrooms from the People's Republic of China: Selection of a 
Surrogate Country, dated September 22, 2010.
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    \4\ See Memorandum from Carole Showers, Acting Director, Office 
of Policy, to Richard Weible, Director, Office 7; Subject: Request 
for a List of Surrogate Countries for a 2010 New Shipper Review of 
the Antidumping Duty Order on Certain Preserved Mushrooms from the 
People's Republic of China, dated June 25, 2010. The Department 
notes that these six countries are part of a non-exhaustive list of 
countries that are at a level of economic development comparable to 
the PRC. See the Department's letter to ``All Interested Parties; 
First Administrative Review of Steel Wire Garment Hangers from the 
People's Republic of China: Deadlines for Surrogate Country and 
Surrogate Value Comments,'' dated March 25, 2010 at 1 and Attachment 
I (``Surrogate Country List'').
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    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
in a NSR, interested parties may submit publicly available information 
to value FOPs within 20 days after the date of publication of these 
preliminary results.

U.S. Price

    In accordance with section 772(a) of the Act, we based Fengyu's and 
Tongfa's U.S. prices on export prices (EP), because their first sales 
to an unaffiliated purchaser were made before the date of importation 
and the use of constructed export price was not otherwise warranted by 
the facts on the record. As appropriate, we deducted foreign inland 
freight and foreign brokerage and handling from the starting price (or 
gross unit price), in accordance with section 772(c)(2) of the Act. 
These services were provided by NME vendors for both Fengyu's and 
Tongfa's U.S. sales. Therefore, we based the deduction of these 
movement charges on surrogate values.
    For both Fengyu and Tongfa, we valued foreign inland freight (which 
consisted of truck freight) using a per-unit, period of review wide, 
average rate calculated from Indian data on the following Web site: 
http://www.infobanc.com/logistics/logtruck.htm. The logistics section 
of this Web site contains inland freight truck rates between many large 
Indian cities. See Memoranda to the File, ``New Shipper Review of 
Certain Preserved Mushroom from the People's Republic of China: 
Surrogate Values for the Preliminary Results'' (Fengyu Surrogate Values 
Memorandum) at Exhibit 7, and ``New Shipper Review of Certain Preserved 
Mushroom from the People's Republic of China: Surrogate Values for the 
Preliminary Results'' (Tongfa Surrogate Values Memorandum) at Exhibit 
7.
    We valued foreign brokerage and handling using the publicly 
summarized brokerage and handling expense reported in the U.S. sales 
listing of Indian mushroom producer, Agro Dutch Industries, Ltd. (Agro 
Dutch), in the 2004-2005 administrative review of Certain Preserved 
Mushrooms from India, which we then inflated to be contemporaneous with 
the POR. See Fengyu Surrogate Values Memorandum at Exhibit 8; and 
Tongfa Surrogate Values Memorandum at Exhibit 8.
    In their section A responses, both Fengyu and Tongfa stated that 
they intended to use the invoice date as the date of sale, stating that 
this was the date that best represented when the terms of sale are 
fixed. See Fengyu's April 30, 2010, submission at 12; and Tongfa's 
April 30, 2010, submission at 12-13. However, both Fengyu and Tongfa in 
their supplemental questionnaire submissions stated that they had no 
instances of quantity or price changes after the receipt of purchase 
order. See Fengyu's June 30, 2010, submission at 3; and Tongfa's June 
30, 2010, submission at 2. Therefore, we used the contract date as the 
date of sale for both Fengyu and Tongfa because there were no changes 
to either the prices or quantities of either companies' sales after 
this date, and there is no record evidence that the material terms of 
sale changed in anyway following the contract date for any of Fengyu's 
and Tongfa's other sales during the POR. The Department concludes that 
the contract date is therefore the date that best represents when 
Fengyu and Tongfa established the material terms of sale. See 19 CFR 
351.401(i).
1. Methodology
    Section 773(c)(1)(B) of the Act provides that the Department shall 
determine the NV using an FOP methodology if the merchandise under 
review is exported from an NME and the information does not permit the 
calculation of NV using home-market prices, third-country prices, or 
constructed value under section 773(a) of the Act. The Department bases 
NV on FOPs because the presence of government controls on various 
aspects of NMEs renders price comparisons and the calculation of 
production costs invalid under the Department's normal methodologies. 
See, e.g., Tapered Roller Bearings and Parts Thereof, Finished or 
Unfinished, From the People's Republic of China: Preliminary Results of 
Antidumping Duty Administrative Review and Notice of Intent to Rescind 
in Part, 70 FR 39744 (July 11, 2005), unchanged in Tapered Roller 
Bearings and Parts Thereof, Finished and Unfinished, from the People's 
Republic of China: Final Results of 2003-2004 Administrative Review and 
Partial Rescission of Review, 71 FR 2517 (January 17, 2006).
    In past cases, it has been the Department's practice to value 
various FOPs using import statistics of the primary selected surrogate 
country from World Trade Atlas (WTA), as published by Global Trade 
Information Services (GTIS). See Certain Preserved Mushrooms from the 
People's Republic of China: Preliminary Results of Antidumping Duty New 
Shipper Review, 74 FR 50946, 50950 (October 2, 2009). However, in 
October 2009, the Department learned that the data reported in the 
Global Trade Atlas (GTA) software, published by GTIS, is reported to 
the nearest digit and thus there is not a loss of data by rounding, as 
there is with the data reported by the WTA software. Consequently, the 
Department will now obtain import statistics from GTA for valuing 
various FOPs.
2. Selection of Surrogate Values
    In selecting the ``best available information for surrogate 
values,'' see Section 773(c)(1) of the Act, consistent with the 
Department's practice, we considered whether the information was: 
Publicly available; product-specific; representative of broad market 
average prices; contemporaneous with the POR; and free of taxes. See, 
e.g., Notice of Preliminary Determination of Sales at Less Than Fair 
Value, Negative Preliminary Determination of Critical Circumstances and 
Postponement of Final Determination: Certain Frozen and Canned 
Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 42672, 
42682 (July 16, 2004), unchanged in Final Determination of Sales at 
Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From 
the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004). 
Where we could obtain only surrogate values that were not 
contemporaneous with the POR consistent with our practice, we

[[Page 66733]]

inflated the surrogate values using, where appropriate, the Indian WPI 
as published in International Financial Statistics by the International 
Monetary Fund. See e.g., Certain Preserved Mushrooms From the People's 
Republic of China: Final Results of Antidumping Duty New Shipper 
Review, 74 FR 65520 (December 10, 2009). See Fengyu Surrogate Values 
Memorandum at Exhibit 2 and Tongfa Surrogate Values Memorandum at 
Exhibit 2.
    In accordance with the legislative history of the Omnibus Trade and 
Competitiveness Act of 1988, see Conf. Report to Accompany H.R. 3, H.R. 
Rep. No. 576, 100th Cong., 2nd Sess. (1988) (OTCA 1988) at 590, the 
Department continues to apply its long-standing practice of 
disregarding surrogate values if it has a reason to believe or suspect 
the source data may be subsidized. In this regard, the Department has 
previously found that it is appropriate to disregard such prices from 
Indonesia, South Korea and Thailand because we have determined that 
these countries maintain broadly available, non-industry specific 
export subsidies. Based on the existence of these subsidy programs that 
were generally available to all exporters and producers in these 
countries at the time of the POR, the Department finds that it is 
reasonable to infer that all exporters from Indonesia, South Korea and 
Thailand may have benefitted from these subsidies.\5\ Additionally, 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. See Certain Non-Frozen Apple Juice Concentrate from 
the People's Republic of China: Notice of Preliminary Results of the 
New Shipper Review, 75 FR 47270 (August 5, 2010) and Drill Pipe From 
the People's Republic of China: Preliminary Determination of Sales at 
Less Than Fair Value and Affirmative Determination of Critical 
Circumstances, and Postponement of Final Determination, 75 FR 51004 
(August 18, 2010).
---------------------------------------------------------------------------

    \5\ See, e.g., Expedited Sunset Review of the Countervailing 
Duty Order on Certain Cut-to-Length Carbon Quality Steel Plate from 
Indonesia, 70 FR 45692 (August 8, 2005) and accompanying Issues and 
Decision Memorandum at page 4; Corrosion-Resistant Carbon Steel Flat 
Products from the Republic of Korea: Final Results of Countervailing 
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and 
accompanying Issues and Decision Memorandum at Comment 1, pages 17, 
19-20; and Certain Hot-Rolled Carbon Steel Flat Products from 
Thailand: Final Results of Countervailing Duty Determination, 66 FR 
50410 (October 3, 2001) and accompanying Issues and Decision 
Memorandum at Comment 1.
---------------------------------------------------------------------------

    In accordance with section 773(c) of the Act, we calculated NV by 
adding the value of the FOPs, general expenses, profit, and packing 
costs reported by Fengyu and Tongfa. The FOPs for subject merchandise 
include: (1) Quantities of raw materials employed; (2) hours of labor 
required; (3) amounts of energy and other utilities consumed; (4) 
representative capital and selling costs; and (5) packing materials. We 
used the FOPs reported by Fengyu and Tongfa for materials, energy, 
labor, and packing, and valued those FOPs by multiplying the amount of 
the factor consumed in producing subject merchandise by the average 
unit surrogate value of the factor derived from the Indian surrogate 
values selected for their NSRs.
    To calculate NV, we multiplied the reported per-unit factor-
consumption rates by publicly available Indian surrogate values. As 
appropriate we added freight costs to the surrogate values that we 
calculated for Fengyu's and Tongfa's material inputs to make these 
prices delivered prices. We calculated these freight costs by 
multiplying surrogate freight rates by the shorter of the reported 
distance from the domestic supplier to the factory that produced the 
subject merchandise or the distance from the nearest seaport to the 
factory that produced the subject merchandise, as appropriate. Where 
there were multiple domestic suppliers of a material input, we 
calculated a weighted-average distance after limiting each supplier's 
distance to no more than the distance from the nearest seaport to 
Fengyu and Tongfa. This adjustment is in accordance with the decision 
by the Court of Appeals for the Federal Circuit in Sigma Corp. v. 
United States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997). We increased 
the calculated costs of the FOPs for surrogate general expenses and 
profit. See Fengyu Surrogate Values Memorandum at Exhibit 9 and Tongfa 
Surrogate Values Memorandum at Exhibit 9.
    Indian surrogate values were denominated in Rupees and were 
converted to USD using the applicable average exchange rate based on 
exchange rate data from the Department's Web site. For further details 
regarding the surrogate values used for these preliminary results, see 
Fengyu's Surrogate Value Memo and Tongfa's Surrogate Value Memo.
    On May 14, 2010, the Court of Appeals for the Federal Circuit 
(``CAFC'') in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (CAFC 
2010) (``Dorbest IV''), found that the ``{regression-based{time}  
method for calculating wage rates {as stipulated by 19 CFR 
351.408(c)(3){time}  uses data not permitted by {the statutory 
requirements laid out in section 773 of the Act (i.e., 19 U.S.C. 
1677b(c)){time} .'' The Department is continuing to evaluate options 
for determining labor values in light of the recent CAFC decision. 
However, for these preliminary results, we have calculated an hourly 
wage rate to use in valuing respondents' reported labor input by 
averaging industry-specific earnings and/or wages in countries that are 
economically comparable to the PRC and that are significant producers 
of comparable merchandise.
    For the preliminary results of this administrative review, the 
Department is valuing labor using a simple average industry-specific 
wage rate using earnings or wage data reported under Chapter 5B by the 
International Labor Organization (``ILO''). To achieve an industry-
specific labor value, we relied on industry-specific labor data from 
the countries we determined to be both economically comparable to the 
PRC, and significant producers of comparable merchandise. A full 
description of the industry-specific wage rate calculation methodology 
is provided in the Prelim Surrogate Value Memo. The Department 
calculated a simple average industry-specific wage rate of $1.36 for 
these preliminary results. Specifically, for this review, the 
Department has calculated the wage rate using a simple average of the 
data provided to the ILO under Sub-Classification 15 of the ISIC-
Revision 3 standard by countries determined to be both economically 
comparable to the PRC and significant producers of comparable 
merchandise. The Department finds the two-digit description under ISIC-
Revision 3 (``Manufacture of Food Products and Beverages'') to be the 
best available wage rate surrogate value on the record because it is 
specific and derived from industries that produce merchandise 
comparable to the subject merchandise. Consequently, we averaged the 
ILO industry-specific wage rate data or earnings data available from 
the following countries found to be economically comparable to the PRC 
and are significant producers of comparable merchandise: Ecuador, 
Egypt, Indonesia, Jordan, Peru, Philippines, Thailand, and Ukraine. For 
further information on the calculation of the wage rate, see Prelim 
Surrogate Values Memo.

Preliminary Results of the Review

    The Department has determined that the following preliminary 
dumping

[[Page 66734]]

margins exist for the period February 1, 2009 through January 31, 2010:

                Certain Preserved Mushrooms From the PRC
------------------------------------------------------------------------
                                                       Weighted- average
                Manufacturer/exporter                  margin  (percent)
------------------------------------------------------------------------
Fengyu...............................................               0.00
Tongfa...............................................               0.00
------------------------------------------------------------------------

Public Comment

    The Department will disclose to parties to this proceeding the 
calculations performed in reaching the preliminary results within five 
days of the date of publication of these preliminary results. See 19 
CFR 351.224(b). Interested parties may submit written comments (case 
briefs) within 30 days of publication of the preliminary results and 
rebuttal comments (rebuttal briefs) within five days after the time 
limit for filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 
351.309(d)(1). Pursuant to 19 CFR 351.309(d)(2), rebuttal briefs must 
be limited to issues raised in the case briefs. 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.
    Any interested party may request a hearing within 30 days of 
publication of this notice. See 19 CFR 351.310(c). Interested parties 
who wish to request a hearing or to participate if one is requested, 
must submit a written request to the Assistant Secretary for Import 
Administration within 30 days of publication of this notice. Requests 
should contain: (1) The party's name, address, and telephone number; 
(2) the number of participants; and (3) a list of issues to be 
discussed. See 19 CFR 351.310(c). Issues raised in the hearing will be 
limited to those raised in the briefs.
    Unless the deadline is extended pursuant to section 
751(a)(2)(B)(iv) of the Act, the Department will issue the final 
results of these NSRs, including the results of our analysis of the 
issues raised by the parties in their comments, within 90 days after 
issuance of these preliminary results.

Deadline for Submission of Publicly Available Surrogate Value 
Information

    In accordance with 19 CFR 351.301(c)(3), the deadline for 
submission of publicly available information to value factors of 
production under 19 CFR 351.408(c) is 20 days after the date of 
publication of the preliminary determination. In accordance with 19 CFR 
351.301(c)(1), if an interested party submits factual information less 
than ten days before, on, or after (if the Department has extended the 
deadline) the applicable deadline for submission of such factual 
information, an interested party has ten days to submit factual 
information to rebut, clarify, or correct the factual information no 
later than ten days after such factual information is served on the 
interested party. However, the Department notes that 19 CFR 
351.301(c)(1) permits new information only insofar as it rebuts, 
clarifies, or corrects information recently placed on the record. See, 
e.g., Glycine from the People's Republic of China: Final Results of 
Antidumping Duty Administrative Review and Final Rescission, in Part, 
72 FR 58809 (October 17, 2007) and accompanying Issues and Decision 
Memorandum at Comment 2. Furthermore, the Department generally will not 
accept business proprietary information in either the surrogate value 
submissions or the rebuttals thereto, as the regulation regarding the 
submission of surrogate values allows only for the submission of 
publicly available information.

Assessment Rates

    Upon issuing the final results of the review, the Department shall 
determine, and CBP shall assess, antidumping duties on all appropriate 
entries. The Department intends to issue assessment instructions to CBP 
15 days after the date of publication of the final results of 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. However, the final results of this 
review shall be the basis for the assessment of antidumping duties on 
entries of merchandise covered by the final results of these reviews 
and for future deposits of estimated duties, where applicable.

Cash Deposit Requirements

    The following cash deposit requirements, when imposed, will be 
effective upon publication of the final results of these NSRs for all 
shipments of subject merchandise exported by Fengyu or Tongfa and 
entered, or withdrawn from warehouse, for consumption on or after the 
publication date, as provided by section 751(a)(2)(C) of the Act: (1) 
For subject merchandise manufactured and exported by Fengyu or 
manufactured and exported by Tongfa, the cash-deposit rate will be that 
established in the final results of this review; (2) for subject 
merchandise exported by Fengyu or Tongfa but not manufactured by Fengyu 
or Tongfa, respectively, the cash deposit rate will continue to be the 
PRC-wide rate (i.e., 198.63 percent); and (3) for subject merchandise 
manufactured by Fengyu or Tongfa, but exported by any other party, the 
cash deposit rate will be the rate applicable to the exporter. If the 
cash deposit rates calculated for Fengyu or Tongfa in the final results 
is zero or de minimis:, a zero cash deposit will be required for 
entries of subject merchandise both produced and exported by Fengyu or 
Tongfa. These cash deposit requirements, when imposed, shall remain in 
effect until further notice.

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.
    These NSRs and notice are in accordance with sections 751(a)(2)(B) 
and 777(i) of the Act and 19 CFR 351.214(i).

    Dated: October 22, 2010.
Ronald Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-27427 Filed 10-28-10; 8:45 am]
BILLING CODE 3510-DS-P