[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Notices]
[Pages 8308-8310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4199]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-570-851]


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

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

EFFECTIVE DATE: February 19, 1999.

FOR FURTHER INFORMATION CONTACT: David J. Goldberger or Kate Johnson, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-4929, 
respectively.

The Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (``the Act''), are references to the provisions 
effective January 1, 1995, the effective date of the amendments made to 
the Act by the Uruguay Round Agreements Act (``URAA''). In addition, 
unless otherwise indicated, all citations to the Department of Commerce 
(``Department'') regulations are to the regulations at 19 CFR Part 351 
(1998).

Amendment to the Final Determination

    On December 18, 1998, the Department made its final determination 
that certain preserved mushrooms from the People's Republic of China 
(PRC) is being, or is likely to be, sold in the United States at less 
than fair value. See Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Preserved Mushrooms from the People's Republic 
of China, 63 FR 72255, December 31, 1998) (``Final Determination''). We 
disclosed our calculations for the final determination to all 
interested parties on December 21 and 22, 1998.
    On January 8, 1999, we received a submission from the respondent 
exporters in the investigation, China Processed Food Import & Export 
Company (``China Processed'') and its affiliate Xiamen Jiahua Import & 
Export Trading Company, Ltd. (``Xiamen Jiahua''), Shenzhen Cofry 
Cereals, Oils, & Foodstuffs Company, Ltd. (``Shenzhen Cofry''), and Tak 
Fat Trading Corporation Co. (``Tak Fat''), alleging ministerial errors 
pertaining to the margin calculations in the Department's final 
determination. On the same date, we received a submission from the

[[Page 8309]]

petitioners 1 alleging ministerial errors pertaining to 
Shenzhen Cofry's margin calculation. On January 13, 1999, the 
petitioners submitted comments on the respondents' allegations.
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    \1\ L.K. Bowman, Inc., Modern Mushroom Farms, Inc., Monterey 
Mushrooms, Inc., Mount Laurel Canning Corp., Mushroom Canning 
Company, Southwood Farms, Sunny Dell Foods, Inc., and United Canning 
Corp.
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    After analyzing the submissions, we have determined, in accordance 
with 19 CFR 351.224, that ministerial errors were made in the margin 
calculations for each of the responding exporters. Specifically:
     We inadvertently failed to exclude diesel fuel expenses 
from the factory overhead expenses used to calculate the surrogate 
value percentage for factory overhead.
     We inadvertently failed to follow our stated methodology 
to calculate the surrogate value for tin cans of certain sizes.
     We inadvertently failed to follow our stated methodology 
to calculate a portion of the fresh mushroom input freight value for 
one of China Processed's suppliers.
     We inadvertently applied the wrong consumption factor for 
packing tape used to seal some of the packing cartons shipped by one of 
Xiamen Jiahua's suppliers.
     We inadvertently applied the surrogate value for tin cans 
to the weight, rather than the number, of cans consumed by one of 
Shenzhen Cofry's suppliers.
     We inadvertently applied the surrogate value for can 
labels to the weight, rather than the number, of labels consumed by 
both of Shenzhen Cofry's suppliers.
    For a detailed discussion of the ministerial errors allegations and 
the Department's analysis, see Memorandum to Louis Apple from the Team, 
dated January 22, 1999.
    Therefore, in accordance with 19 CFR 351.224(e), we are amending 
the final determination of the antidumping duty investigation of 
certain preserved mushrooms from the PRC. The revised weighted-average 
dumping margins are in the ``Antidumping Order'' section below.

Scope of Order

    The products covered by this antidumping duty order are certain 
preserved mushrooms whether imported whole, sliced, diced, or as stems 
and pieces. The preserved mushrooms covered under this order are the 
species Agaricus bisporus and Agaricus bitorquis. ``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. Preserved mushrooms 
may be imported whole, sliced, diced, or as stems and pieces. Included 
within the scope of the investigation 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 investigation 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 investigation is classifiable under 
subheadings 2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043, 
2003.10.0047, 2003.10.0053, and 0711.90.4000 of the Harmonized Tariff 
Schedule of the United States (``HTS''). Although the HTS subheadings 
are provided for convenience and Customs purposes, the Department's 
written description of the merchandise under the order is dispositive.

Antidumping Duty Order

    On February 12, 1999, in accordance with section 735(d) of the Act, 
the U.S. International Trade Commission (ITC) notified the Department 
that a U.S. industry is materially injured by reason of imports of 
certain preserved mushrooms from the PRC, pursuant to section 
735(b)(1)(A) of the Act.
    In addition, three ITC Commissioners found that critical 
circumstances exist with regard to such products, and three 
Commissioners found that critical circumstances do not exist with 
regard to such imports from the PRC. Section 771(11) of the Act 
provides that if the Commissioners voting on a determination ``are 
evenly divided as to whether the determination should be affirmative or 
negative, the Commission shall be deemed to have made an affirmative 
determination.'' We consider that the tie-vote provision in section 
771(11) applies to critical circumstances determinations.
    We note that critical circumstances decisions are referred to as 
both ``determinations'' and ``findings'' in the statute. Moreover, 
while the legislative history will sometimes refer to the Commission's 
critical circumstances ``findings'' (see, e.g., H.R. Rep. No. 96-317, 
at 69 (1979)), these decisions are more often identified as 
``determinations.'' See, e.g., S. Rep. No. 96-249, at 74 (1979); H.R. 
Rep. No. 103-826, at 50 (1994). Since the terms ``findings'' and 
``determinations'' are used interchangeably in the statute and 
legislative history, the use of one or the other does not preclude the 
application of section 771(11) to the Commission's consideration of the 
critical circumstances issue.
    Congress promulgated the critical circumstances provision in order 
``to provide prompt relief to domestic industries suffering from large 
volumes of, or a surge over a short period of, imports and to deter 
exporters whose merchandise is subject to an investigation from 
circumventing the intent of the law by increasing their exports to the 
United States during the period between initiation of an investigation 
and a preliminary determination by the [Department].'' H.R. Rep. 96-
317, at 63 (1979). In amending the critical circumstances provisions in 
1988, Congress developed ``an improved critical circumstances procedure 
[that] will significantly strengthen antidumping and countervailing 
duty procedures by revitalizing a provision that has up to now been 
ineffective.'' H.R. Rep. No. 100-576, at 611 (1988). Considering this 
legislative history, we conclude that Congress did not intend to limit 
the availability of retroactive relief in cases such as this one to 
only those instances where two-thirds of the Commission votes to grant 
such relief. Therefore, we consider the Commission to have made an 
affirmative critical circumstances determination. The Department's 
finding in this regard is consistent with the Department's treatment of 
this issue in Notice of Antidumping Order: Coumarin from the People's 
Republic of China, 60 FR 7751 (February 9, 1995).
    Therefore, in accordance with section 736(a)(1) of the Act, the 
Department will direct the United States Customs Service to assess, 
upon further advice by the Department, antidumping duties equal to the 
amount by which the normal value of the merchandise exceeds the export 
price or constructed export price of the merchandise for all relevant 
entries of certain preserved mushrooms from the PRC. These antidumping 
duties will be assessed on all unliquidated entries of imports of the 
subject merchandise that are entered, or withdrawn from warehouse, for 
consumption on or after August 5, 1998,

[[Page 8310]]

the date of publication of the preliminary determination in the Federal 
Register, except for subject merchandise exported by Tak Fat or other 
companies not specifically named below. For merchandise exported by Tak 
Fat or by other companies not specifically named below, we are 
directing the Customs Service to assess antidumping duties on all 
unliquidated entries of the subject merchandise that are entered, or 
withdrawn from warehouse, for consumption on or after May 7, 1998, the 
date 90 days prior to the date of publication of the preliminary 
determination in the Federal Register, in accordance with the critical 
circumstances finding in the final determination.
    On or after the date of publication of this notice in the Federal 
Register, U.S. Customs officers must require, at the same time as 
importers would normally deposit estimated duties, the cash deposits 
listed below for the subject merchandise. The ``PRC-wide Rate'' applies 
to all exporters of certain preserved mushrooms not specifically listed 
below.
    The revised final weighted-average margins are as follows:

------------------------------------------------------------------------
                                          Original final   Revised final
          Exporter/manufacturer               margin          margin
                                            percentage      percentage
------------------------------------------------------------------------
China Processed Food I&E Co./Xiamen               154.71          121.47
 Jiahua I&E Trading Company, Ltd........
Tak Fat Trading Co......................          178.59          162.47
Shenzhen Cofry Cereals, Oils, &                   126.16          151.15
 Foodstuffs Co., Ltd....................
Gerber (Yunnan) Food Co.................          158.79          142.11
Jiangsu Cereals, Oils & Foodstuffs Group          158.79          142.11
 Import & Export Corporation............
Fujian Provincial Cereals, Oils &                 158.79          142.11
 Foodstuffs I&E Corp....................
Putian Cannery Fujian Province..........          158.79          142.11
Xiamen Gulong I&E Co., Ltd..............          158.79          142.11
General Canned Foods Factory of                   158.79          142.11
 Zhangzhou..............................
Zhejiang Cereals, Oils & Foodstuffs I&E           158.79          142.11
 Corp...................................
Shanghai Foodstuffs I&E Corp............          158.79          142.11
Canned Goods Co. of Raoping.............          158.79          142.11
PRC-wide Rate...........................          198.63          198.63
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    This notice constitutes the antidumping duty order with respect to 
certain preserved mushrooms from the PRC, pursuant to section 736(a) of 
the Act. Interested parties may contact the Central Records Unit, Room 
B-099 of the Main Commerce Building, for copies of an updated list of 
antidumping duty orders currently in effect.
    This order is published in accordance with section 736(a) of the 
Act and 19 CFR 351.211.

    Dated: February 16, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-4199 Filed 2-18-99; 8:45 am]
BILLING CODE 3510-DS-P