[Federal Register Volume 68, Number 65 (Friday, April 4, 2003)]
[Notices]
[Pages 16469-16471]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8234]



[[Page 16469]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-560-802]


Certain Preserved Mushrooms From Indonesia: Preliminary Results 
of Antidumping Duty New Shipper Review

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

ACTION: Notice of Preliminary Results of Antidumping Duty New Shipper 
Review.

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SUMMARY: In response to timely requests by two manufacturers/exporters, 
the Department of Commerce is conducting a new shipper review of the 
antidumping duty order on certain preserved mushrooms from Indonesia. 
The respondents in this review are PT Eka Timur Rays (``Etira'') and PT 
Karya Dompos Bagas (``KKB''). The petitioner, the Coalition for Fair 
Preserved Mushroom Trade,\1\ did not comment. The period of review is 
February 1, 2002, through July 31, 2002.
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    \1\ The Coalition for Fair Preserved Mushroom Trade includes the 
American Mushroom Institute and the following domestic companies: 
L.K. Bowman, Inc., Nottingham, PA; Modern Mushrooms Farms, Inc., 
Toughkernamon, PA; Monterrey Mushrooms, Inc., Watsonville, CA; Mount 
Laurel Canning Corp.; Temple, PA; Mushrooms Canning Company, Kennett 
Square, PA; Southwood Farms, Hockessin, DE; Sunny Dell Foods, Inc., 
Oxford, PA; United Canning Corp., North Lima, OH.
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    The Department preliminarily determines that, during the period of 
review (``POR''), neither Etira nor KKB made sales of the subject 
merchandise at less than normal value (``NV'') (i.e., they made sales 
at zero or de minimis dumping margins). If these preliminary results 
are adopted in the final results of this new shipper review, we will 
instruct the U.S. Customs Service to liquidate appropriate entries 
without regard to antidumping duties.
    Interested parties are invited to comment on these preliminary 
results.

EFFECTIVE DATE: April 4, 2003.

FOR FURTHER INFORMATION CONTACT: Sophie Castro or Rebecca Trainor, 
Office 2, AD/CVD Enforcement Group I, Import Administration-Room B-099, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202 482-0588 or (202) 482-4007, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On December 31, 1998, the Department published in the Federal 
Register (63 FR 72268), the final affirmative antidumping duty 
determination of sales at less than fair value (``LTFV'') on certain 
preserved mushrooms from Indonesia. We published an antidumping duty 
order on February 19, 1999 (64 FR 8310). On August 29, 2002, we 
received properly filed requests from Etira and KKB for a new shipper 
review of the antidumping order on certain preserved mushrooms from 
Indonesia.
    Section 351.214(b) of the Department's regulations requires that 
the exporter or producer requesting a new shipper review include the 
following in its request: (i) A statement from such exporter or 
producer that it did not export subject merchandise to the United 
States during the period of investigation (POI); (ii) certification 
that, since the investigation was initiated, such exporter or producer 
has never been affiliated with any exporter or producer who exported 
the subject merchandise to the United States during the POI; and 
documentation establishing: (a) The date on which the subject 
merchandise was first entered, or withdrawn from warehouse, for 
consumption, or, if this date cannot be established, the date on which 
the exporter or producer first shipped the subject merchandise for 
export to the United States; (b) the volume of that shipment and 
subsequent shipments; and (c) the date of the first sale to an 
unaffiliated customer in the United States. Etira's and KKB's new 
shipper review requests were accompanied by information and 
certifications establishing the date on which they first shipped and 
entered preserved mushrooms for consumption in the United States, the 
volume of the shipments, and the dates of first sale to unaffiliated 
customers in the United States. They also certified that they did not 
export preserved mushrooms to the United States during the POI and were 
not affiliated with any company that had done so during the POI. 
Consequently, on September 30, 2002, we initiated a new shipper review 
of Etira and KKB covering the period February 1, 2002, through July 31, 
2002. See Certain Preserved Mushrooms From Indonesia: Initiation of New 
Shipper Antidumping Duty Review, 67 FR 62437 (October 7, 2002).
    On October 3, 2002, we issued antidumping questionnaires to Etira 
and KKB. We issued supplemental questionnaires on December 26, 2002. We 
received timely responses to our original and supplemental 
questionnaires on November 27, 2002, and January 28, 2003, 
respectively.

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 
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 
this order are ``brined'' mushrooms, which are presalted and packed in 
a heavy salt solution to provisionally preserve them for further 
processing.
    Excluded from the scope of this order are the following: (1) All 
other species of mushroom, including straw mushrooms; (2) all fresh and 
chilled mushrooms, including ``refrigerated'' or ``quick blanched 
mushrooms;'' (3) dried mushrooms; (4) frozen mushrooms; and (5) 
``marinated,'' ``acidified'' or ``pickled'' mushrooms, which are 
prepared or preserved by means of 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 \2\ (HTS). Although the HTS subheadings 
are provided for convenience and customs purposes, our written 
description of the scope of this order is dispositive.
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    \2\ Prior to January 1, 2002, the HTS codes were as follows: 
2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043, 
2003.10.0047, 2003.10.0053, and 0711.90.4000.
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Fair Value Comparisons

    To determine whether sales to the United States of certain 
preserved mushrooms by Etira and KKB were made at less than NV, we 
compared export price to the NV, as described in the ``Export Price'' 
and ``Normal Value'' sections of this notice.
    Pursuant to section 777A(d)(2) of the Act, we compared the export 
prices of individual U.S. transactions to the weighted-average NV of 
the foreign like

[[Page 16470]]

product where were sales made in the ordinary course of trade.

Product Comparisons

    In accordance with section 771(16) of the Act, we considered all 
products produced by Etira and KKB, covered by the description in the 
``Scope of the Order'' section, above, and sold by the respondents in 
the home market during the POR, to be foreign like products for 
purposes of determining appropriate product comparisons to U.S. sales. 
We compared U.S. sales to sales made in the home market within the 
contemporaneous window period, which extends from three months prior to 
the first U.S. sale until two months after the last sale in the POR. 
Where there were no sales of identical merchandise in the home market 
made in the ordinary course of trade to compare to U.S. sales, we 
compared U.S. sales to sales of the most similar foreign like product 
made in the ordinary course of trade.
    In making the product comparisons, we matched foreign like products 
based on the physical characteristics reported by the respondents in 
the following order: Preservation method, container type, mushroom 
style, weight, grade, container solution and label type. See ``Normal 
Value'' section below for further discussion.

Export Price

    For both respondents, we used the export price calculation 
methodology, in accordance with section 772(a) of the Act, because the 
subject merchandise was sold directly by the producer/exporter in 
Indonesia to the first unaffiliated purchaser in the United States 
prior to importation and constructed export price (``CEP'') treatment 
was not otherwise indicated.
    We calculated export price based on the packed FOB seaport prices 
charged to the first unaffiliated customer in the United States. We 
made deductions, where appropriate, for foreign inland freight and 
brokerage and handling, in accordance with section 772(c)(2)(A) of the 
Act.

Normal Value

    In order to determine whether there was a sufficient volume of 
sales in the home market to serve as a viable basis for calculating NV, 
we compared each respondent's volume of home market sales of the 
foreign like product to the volume of its U.S. sales of the subject 
merchandise, in accordance with section 773(a)(1) of the Act.
    Etira's and KKB's aggregate volumes of home market sales of the 
foreign like product were greater than five percent of their respective 
aggregate volumes of U.S. sales of the subject merchandise. Therefore, 
we determined that the home market provides a viable basis for 
calculating NV for both companies, in accordance with section 
773(a)(1)(B)(ii)(II) of the Act.

Level of Trade

    Section 773(a)(1)(B)(i) of the Act states that, to the extent 
practicable, the Department will calculate NV based on sales at the 
same level of trade (LOT) as the export price or CEP. Sales are made at 
different LOTs if they are made at different marketing stages (or their 
equivalent). See 19 CFR 351.412(c)(2). Substantial differences in 
selling activities are a necessary, but not sufficient, condition for 
determining that there is a difference in the stages of marketing. Id.; 
see also, Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cut-to-Length Carbon Steel Plate From South Africa, 62 
FR 61731, 61732 (November 19, 1997) (Cut-to-Length Plate from South 
Africa). In order to determine whether the comparison sales were at 
different stages in the marketing process than the U.S. sales, we 
reviewed the distribution system in each market (i.e., the ``chair of 
distribution''), including selling functions, class of customer 
(``customer category''), and the level of selling expenses incurred for 
each type of sale.
    Pursuant to section 773(a)(1)(B)(i) of the Act, in identifying 
levels of trade for export price and comparison market sales (i.e., NV 
based on either home market or third country prices \3\), we consider 
the starting prices before any adjustments. For CEP sales, we consider 
only the selling activities reflected in the price after the deduction 
of expenses and profit under section 772(d) of the Act. See Micron 
Technology, Inc. v. United States, 243 F.3d 1301, 1314-1315 (Fed. Cir. 
2001).
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    \3\ Where NV is based on constructed value, we determine the NV 
LOT based on the LOT of the sales from which we derive selling 
expenses and profit for constructed value, where possible.
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    When the Department is unable to find sales of the foreign like 
product in the comparison market at the same LOT as the EP or CEP, the 
Department may compare the U.S. sale to sales at a different LOT in the 
comparison market. In comparing export price or CEP sales at a 
different LOT in the comparison market, where available data make it 
practicable, we make a LOT adjustment under section 773(a)(7)(A) of the 
Act. Finally, for CEP sales only, if a NV LOT is more remote from the 
factory than the CEP LOT and there is no basis for determining whether 
the difference in LOTs between NV and CEP affects price comparability 
(i.e., no LOT adjustment was practicable), the Department shall grant a 
CEP offset, as provided in section 773(a)(7)(B) of the Act. See Cut-to-
Length Plate from South Africa, 62 FR 61731 (November 19, 1997).
    We obtained information from Etira and KKB regarding the marketing 
stages involved in making the reported home market and U.S. sales, 
including a description of the selling activities performed for each 
channel of distribution. Company-specific LOT findings are summarized 
below.
    All of Etira's sales in the home market were to distributors, 
comprising a single LOT. Etira provided no services such as inventory 
maintenance, technical advice, warranty services, or advertising for 
home market customers.
    In the U.S. market, Etira made only export price sales to trading 
companies. As in the home market, Etira did not provide any services, 
such as inventory maintenance, technical advice, or advertising to its 
U.S. customers, but did incur expenses to transport the merchandise to 
the port of exportation. Accordingly, there is only one LOT for U.S. 
sales.
    KKB's home market sales were exclusively to trading companies, 
constituting a single LOT. KKB provided no services such as inventory 
maintenance, technical advice, warranty services, or advertising for 
home market customers.
    In the U.S. market, KKB made only export price sales to trading 
companies. Although KKB incurred freight costs in delivering the 
product to the port, it did not provide any other services, such as 
inventory maintenance, technical advice, or advertising in selling to 
its U.S. customers. Accordingly, there is only one LOT for U.S. sales.
    For both companies, we compared the export price LOT to the home 
market LOT and concluded that the selling functions performed for home 
market customers were essentially the same as those performed for U.S. 
customers. Accordingly, we considered the export price and home market 
LOTs to be the same. Consequently, we compared export price sales to 
sales at the same LOT in the home market of both companies.

Price-to-Price Comparisons

    For Etira and KKB, we based NV on the price at which the foreign 
like product is first sold for consumption in the exporting country, in 
the usual commercial quantities and in the ordinary course of trade, 
and at the same LOT as the export price, as

[[Page 16471]]

defined by section 773(a)(1)(B)(i) of the Act.
    Home market prices were based on ex-factory prices. We reduced NV 
for packing costs incurred in the home market, in accordance with 
section 773(a)(6)(B)(i), and increased NV to account for U.S. packing 
expenses in accordance with section 773(a)(6)(A). We also made 
adjustments for differences in circumstances of sale (COS) in 
accordance with 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410, by 
deducting home market direct selling expenses (i.e., imputed credit) 
and adding U.S. direct selling expenses (i.e., imputed and bank 
charges, where applicable).

Currency Conversion

    We made currency conversions in accordance with section 773A of the 
Act based on the official exchange rates in effect on the dates of the 
U.S. sales as certified by the Federal Reserve Bank.

Preliminary Results of the Review

    As a result of this review, we preliminarily determine that the 
weighted-average dumping margins for the period February 1, 2002, 
though July 31, 2002, are as follows:

------------------------------------------------------------------------
                                                                Margin
                    Manufacture/exporter                      (percent)
------------------------------------------------------------------------
PT Eka Timur Raya..........................................         0.00
PT Karya Kompos Bagas......................................         0.00
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    We will disclose calculations used in our analysis to parties to 
this proceeding within five days of the publication date of this 
notice. See 19 CFR 351.224(b). Any interested party may request a 
hearing within 30 days of publication. See 19 CFR 351.310(c). If 
requested, a hearing will be held 44 days after the date of publication 
of this notice, or the first work day thereafter.
    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, Room B-099. 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 
respective case briefs and rebuttal briefs. Case briefs from interested 
parties and rebuttal briefs, limited to the issues raised in the 
respective case briefs, may be submitted not later than 30 days and 37 
days, respectively, from the date of publication of these preliminary 
results. See 19 CFR 351.309(c) and (d). Parties who submit case briefs 
or rebuttal briefs in this proceeding are requested to submit with each 
argument (1) a statement of the issue and (2) a brief summary of the 
argument. Parties are also encouraged to provide a summary of the 
arguments not to exceed five pages and a table of statutes, 
regulations, and cases cited.
    The Department will issue the final results of this new shipper 
review, including the results of its analysis of issues raised in any 
written briefs, not later than 90 days after the date of publication of 
this notice.

Assessment Rates

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. For assessment 
purposes, we do not have the actual entered values for all sales made 
by Etira. Accordingly, we intend to calculate customer-specific 
assessment rates by aggregating any dumping margins calculated for all 
of Etira's U.S. sales examined and dividing the respective amount by 
the total quantity of the sales examined. To determine whether the duty 
assessment rates are de minimis (i.e., less than 0.50 percent), in 
accordance with the requirement set forth in 19 CFR 351.106(c)(2), we 
will calculate importer-specific ad valorem ratios based on export 
prices. With respect to KKB, we intend to calculate importer-specific 
assessment rates for the subject merchandise by aggregating any dumping 
margins calculated for the examined sales and dividing this amount by 
the total entered value of the sales examined.
    The Department will issue appropriate appraisement instructions 
directly to the Customes Service upon completion of this review. We 
will instruct the Customs Service 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 (i.e., less than 0.50 percent). See 19 CFR 351.106(c)(1). 
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 this review and for future deposits of estimated duties, 
where applicable.

Cash Deposit Requirements

    Bonding will no longer be permitted to fulfill security 
requirements for shipments from Etira or KKB of certain preserved 
mushrooms from Indonesia entered or withdrawn from warehouse, for 
consumption on or after the publication date of the final results of 
the new shipper review. Furthermore, the following cash deposit 
requirements will be effective upon publication of the final results of 
the new shipper review for all shipments of subject merchandise from 
Etira or KKB entered, or withdrawn from warehouse, for consumption on 
or after the publication date: (1) for subject merchandise manufactured 
and exported by Etira or KKB, no cash deposit will be required if the 
cash deposit rates calculated in the final results are zero or de 
minimis; and (2) for subject merchandise exported by Etira or KKB but 
not manufacture by them, the cash deposit rate will be 11.26 percent, 
the ``All Others'' rate made effective by the LTFV investigation. These 
requirements, when imposed, shall remain in effect until publication of 
the final results of the next administrative review.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) ot file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This new shipper review and notice are published in accordance with 
sections 751(a)(2)(B) and 777(i)(1) of the Act and 19 CFR 351.214.

    Dated: March 27, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-8234 Filed 4-3-03; 8:45 am]
BILLING CODE 3510-DS-M