[Federal Register Volume 68, Number 133 (Friday, July 11, 2003)]
[Notices]
[Pages 41304-41310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17628]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-851]


Certain Preserved Mushrooms From the People's Republic of China: 
Final Results and Partial Rescission of the New Shipper Review and 
Final Results and Partial Rescission of the Third Antidumping Duty 
Administrative Review

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

ACTION: Notice of final results and partial rescission of the new 
shipper review and final results and partial

[[Page 41305]]

rescission of the third antidumping duty administrative review.

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SUMMARY: On March 6, 2003, the Department of Commerce published the 
preliminary results and partial rescission of the new shipper review 
and the third antidumping duty administrative review of the antidumping 
duty order on certain preserved mushrooms from the People's Republic of 
China. See Certain Preserved Mushrooms from the People's Republic of 
China: Preliminary Results of New Shipper Review and Preliminary 
Results and Partial Rescission of Third Antidumping Duty Administrative 
Review, 68 FR 10694 (March 6, 2003) (Preliminary Results). The new 
shipper review covers three exporters and the administrative review 
covers four exporters (see ``Background'' section below for further 
discussion). The period of review is February 1, 2001, through January 
31, 2002.\1\ We gave interested parties an opportunity to comment on 
our preliminary results.
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    \1\ The POR for both the new shipper and administrative review 
is the same.
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    Based on the additional publicly available information used in 
these final results and the comments received from the interested 
parties, we have made changes in the margin calculations for certain 
respondents in these reviews. The final weighted-average dumping 
margins for the reviewed firms in these reviews are listed below in the 
section entitled ``Final Results of Reviews.''

EFFECTIVE DATE: July 11, 2003.

FOR FURTHER INFORMATION CONTACT: Brian Smith or Davina Hashmi, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-
0984, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    While the Department initiated an administrative review of 7 
companies,\2\ based on a request by the petitioners \3\ and certain 
exporters, this administrative review now covers only the following 
four exporters: (1) Gerber; (2) Green Fresh; (3) Shantou Hongda; and 
(4) Shenxian Dongxing (see ``Partial Rescission of Administrative 
Review'' section below of this notice for further discussion).
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    \2\ The petitioners' request for review included the following 
companies: (1) China Processed Food Import & Export Company (``China 
Processed''); (2) Shantou Hongda Industrial General Corporation 
(``Shantou Hongda''); (3) Shenxian Dongxing Foods Co., Ltd. 
(``Shenxian Dongxing''); (4) Gerber Food Yunnan Co., Ltd. 
(``Gerber''); (5) Green Fresh Foods (Zhangzhou) Co., Ltd. (``Green 
Fresh''); (6) Raoping Xingyu Foods Factory Co., Ltd. (``Raoping 
Xingyu''); (7) Compania Envasador Del Atlantico (``Compania 
Envasador'').
    \3\ The petitioners are the Coalition for Fair Preserved 
Mushroom Trade which includes the American Mushroom Institute and 
the following domestic companies: L.K. Bowman, Inc., Modern Mushroom 
Farms, Inc., Monterey Mushrooms, Inc., Mount Laurel Canning Corp., 
Mushrooms Canning Company, Southwood Farms, Sunny Dell Foods, Inc., 
and United Canning Corp.
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    On March 6, 2002, the Department published in the Federal Register 
the preliminary results of the new shipper review and the third 
antidumping duty administrative review of the antidumping duty order on 
certain preserved mushrooms from the People's Republic of China 
(``PRC'') (see Preliminary Results, 67 FR at 10128).
    On March 7, 2003, after determining that the 2001-2002 financial 
report submitted for one Indian producer contained in Gerber's February 
5, 2003, submission was incomplete, we requested that Gerber provide 
the complete financial report for that Indian producer in order to 
further consider the data for the final results. In response to our 
request, the petitioners provided this data on April 18, 2003, for the 
Department's consideration in the final results.
    On March 10, 2003, the petitioners placed information on the record 
indicating that one of Guangxi Yulin's owners may have made shipments 
of subject merchandise during the period of investigation (``POI'') \4\ 
and therefore may not be eligible for a new shipper review. On March 
20, 2003, Guangxi Yulin submitted rebuttal comments. On April 15, 2003, 
we placed on the record the results of our data query on this matter 
(see April 15, 2003, Memorandum from Sophie Castro, Case Analyst to the 
File, entitled ``Results of Data Queries Conducted in Response to 
Allegations and Information Submitted in March of 2003 Regarding 
Guangxi Yulin Oriental Food Co., Ltd.'').
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    \4\ The POI covers the period of July 1, 1997 though December 
31, 1997.
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    On March 31, 2003, in accordance with 19 CFR 351.301(c)(3), we 
received additional publicly available information from two 
respondents, Gerber and Green Fresh.
    On April 25, 2003, we placed on the record additional publicly 
available information on truck freight rates for consideration in the 
final results.
    The petitioners and three respondents, Gerber, Guangxi Yulin and 
Shenzhen Qunxingyuan Trading Co., Ltd. (``Shenzhen Qunxingyuan'') 
submitted their case briefs on April 30, 2003. On May 7, 2003, the 
petitioners and two respondents, Gerber and Guangxi Yulin, submitted 
rebuttal briefs. The other respondents participating in these reviews 
did not submit case or rebuttal briefs.
    On May 7, 2003, we determined that the petitioner and Shenzhen 
Qunxingyuan had submitted new factual information in their case briefs 
in violation of the regulatory requirement provided in 19 CFR 
351.301(c)(3)(ii), and requested these parties to remove this data and 
resubmit their case briefs. On May 19, 2003, we determined that the 
petitioner had also submitted new factual information in its rebuttal 
brief and requested the petitioner to remove this data as well and 
resubmit its rebuttal brief. Also, on May 19, 2003, the petitioner 
requested a meeting with the Department to discuss the relationship 
between Gerber and Green Fresh during the period of review (``POR'') as 
discussed in its case brief. On May 22, 2003, Gerber and Green Fresh 
requested a similar meeting. On June 11, and June 27, 2003, we held ex-
parte meetings with the petitioners' and respondents' counsels, 
respectively, to discuss the relationship between Gerber and Green 
Fresh during the POR and the new shipper claims made by Shenzhen 
Qunxingyuan and Guangxi Yulin (see ex-parte memoranda to the file dated 
June 12, and June 30, 2003).
    On June 5, 2003, we placed on the record additional publicly 
available price information on copper wire scrap, water, and the 
components included in laterite, and additional public financial data 
from an Indian producer submitted in this review for consideration in 
the final results of this review. On June 19, 2003, Gerber and Green 
Fresh submitted comments on the publicly available information we had 
placed on the record on June 5, 2003.
    No party requested a hearing, as specified under 19 CFR 351.310(c).
    The Department has conducted these reviews in accordance with 
section 751 of the Act.

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,

[[Page 41306]]

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.\5\
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    \5\ 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. \
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    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 \6\ (``HTS''). Although the HTSUS 
subheadings are provided for convenience and customs purposes, the 
written description of the scope of this order is dispositive.
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    \6\ Prior to January 1, 2002, the HTS subheadings 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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Partial Rescission of Administrative Review

    We have rescinded this review with respect to China Processed, 
Compania Envasador, and Raoping Xingyu pursuant to 19 CFR 
351.213(d)(1), because the petitioners withdrew their request for 
review and no other interested party requested a review of these 
companies. See Certain Preserved Mushrooms from the People's Republic 
of China: Notice of Partial Rescission of Antidumping Duty 
Administrative Review, 67 FR 53914 (August 20, 2002).

Facts Available--Shenxian Dongxing

    In the Preliminary Results, 67 FR at 10697, the Department 
determined that the use of adverse facts available was warranted in 
accordance with section 776(b) of the Tariff Act of 1930, as amended 
(``the Act''), to calculate the dumping margin for Shenxian Dongxing. 
Because Shenxian Dongxing failed to provide usable transaction-specific 
sales quantities for purposes of calculating its weighted-average 
dumping margin, we determined that Shenxian Dongxing did not cooperate 
to the best of its ability. Since the preliminary results, nothing has 
changed to reverse our preliminary decision regarding Shenxian Dongxing 
and Shenxian Dongxing has filed no comments on the record addressing 
the Department's calculation. Therefore, pursuant to section 776(b) of 
the Act, we have continued to make an adverse inference with respect to 
Shenxian Dongxing by assigning to its exports of the subject 
merchandise a rate of 61.37 percent, which is the highest rate 
calculated for any of its U.S. sales transactions based on the use of 
additional publicly available information and the comments received 
from the interested parties since the preliminary results (see 
``Changes Since the Preliminary Results'' section below for further 
discussion).

Facts Available--Gerber/Green Fresh

    In the Preliminary Results, 67 FR at 10697, the Department 
determined that the business relationship which existed between Gerber 
and Green Fresh resulted in evasion of antidumping cash deposits during 
the POR. (See February 28, 2003, memorandum from Office Director to the 
Acting Deputy Assistant Secretary entitled ``Cash Deposit Rate for 
Gerber Food (Yunnan) Co., Ltd. and Green Fresh Foods (Zhangzhou) Co., 
Ltd.'' (``Gerber-Green Fresh memo'') for further discussion). 
Consequently, as adverse facts available, the Department preliminarily 
assigned to each of these respondents for future cash deposit purposes 
the higher of the rates calculated for each of them in this review.\7\ 
The preliminary calculated margins for Gerber and Green Fresh were 1.17 
percent and 46.41 percent, respectively. However, as adverse facts 
available for cash deposit purposes, we assigned both companies Green 
Fresh's calculated margin of 46.41 percent. We invited comments on our 
preliminary results.
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    \7\ For assessment purposes, we preliminarily stated that we 
intended to calculate importer-specific duty assessment rates based 
on the data provided by these two companies, as adjusted, to reflect 
verification findings.
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    After considering the comments submitted by the parties on this 
matter, we find that our preliminary decision with respect to Gerber 
and Green Fresh did not sufficiently address the fact that both 
companies withheld crucial information prior to verification and 
actively colluded to circumvent the cash deposit rates in effect during 
the POR. After a re-examination of the facts on the record of this 
review, we find that the use of total adverse facts available is 
warranted in this case with respect to determining Gerber's and Green 
Fresh's cash deposit and assessment rates for the reasons stated below.
    With respect to Gerber, we find that Gerber continually 
misrepresented in its questionnaire responses the true nature of its 
relationship with Green Fresh during the POR. In its questionnaire 
responses, which were accompanied by a certification from Gerber 
officials attesting to the validity and truthfulness of these 
responses, Gerber claimed that Green Fresh acted as an agent on its 
behalf by arranging for the shipment on some of its reported U.S. sales 
of self-produced subject merchandise during the POR (see May 23, 2003, 
Section A response at A-11). Moreover, Gerber indicated that Green 
Fresh acted as its agent from September 2001 to May 2002 and Gerber 
paid it a commission for each container of Gerber-produced merchandise 
which Green Fresh shipped to the U.S. market on Gerber's behalf (see 
September 11, 2002, submission at 6).
    Based on this information, the Department was led to believe prior 
to verification that Gerber's business with Green Fresh was at arms-
length, and constituted a bona fide business arrangement under which 
Green Fresh did, in fact, operate as the exporter of the merchandise. 
However, an examination of sales and export documentation at 
verification revealed that Gerber in fact arranged shipment of all of 
its sales of subject merchandise and paid Green Fresh a fee to use 
Green Fresh's sales invoices for this purpose in order to take 
advantage of Green Fresh's comparatively low cash deposit rate during 
the POR (see February 12, 2003, Gerber verification report at 5-7 and 
exhibits 4D through 4K)). Absent verification, the Department would 
never have discovered that Gerber used Green Fresh's sales invoices in 
order to benefit from Green Fresh's lower cash deposit rate.
    Gerber's misrepresentations were highly material to the 
Department's analysis and call into question the veracity of other 
responses provided by Gerber. Despite Gerber's pre-verification claims 
to the contrary, Green Fresh never acted as Gerber's agent for most of 
the Gerber/Green Fresh reported transactions. Green Fresh had at most 
negligible commercial involvement with the specific transactions 
involving the export of Gerber's merchandise to the United States from 
the PRC using its invoices. Although the nature of this relationship 
came to light at verification, the Department deems it critical to the 
resolution of this issue the

[[Page 41307]]

fact that Gerber certified as truthful false information it provided to 
the Department, in numerous questionnaire responses.
    Under these circumstances, section 776(a)(2) of the Act states that 
the Department may use ``facts available'' if an interested party (A) 
withholds information that has been requested by the Department, (C) 
significantly impedes a proceeding under this title or (D) provides 
such information but the information cannot be verified. All of these 
provisions apply in this case. Because the Department relies on 
original sales invoices to verify the accuracy of the sales listing, 
the information Gerber mis-characterized and withheld was fundamental 
and material to the Department's analysis. Gerber's actions now lead us 
to question our verification findings which were predicated on the 
reliability of Gerber's own information and records. Gerber's 
consistent mis-characterization of the facts on the record impeded a 
proper review of Gerber's transactions. This is particularly true, 
given that the vast majority of Gerber's reported U.S. sales were made 
using Green Fresh's sales invoices. Without the necessary information 
pertaining to these transactions, the Department could not 
realistically conduct an accurate review of Gerber. Clearly in this 
case, Gerber did not act to the best of its ability by providing the 
Department with incorrect and misleading mis-characterizations of its 
agreement with Green Fresh and misusing Green Fresh's invoices to evade 
the payment of cash deposits during the POR.
    For these reasons, the Department has determined that it will apply 
total adverse facts available to Gerber in this case. Thus, as adverse 
facts available, in light of record evidence of material 
misrepresentations by Gerber as noted above and the potential for 
future misconduct, the assignment of a cash deposit and assessment rate 
equal to the PRC-wide rate of 198.63 percent is appropriate. The 
application of this cash deposit rate reflects the Department's best 
estimate as to what the company's ultimate assessed duty liability 
would be in the next stage of the proceeding, given the uncertainty 
created by the misconduct that has characterized the parties' behavior 
to date. The Department considers the assignment of this rate to Gerber 
sufficient to encourage it to cooperate with the Department in future 
reviews, and to ensure that Gerber cannot undermine the efficacy of the 
antidumping duty law by posting insufficient and improper deposits.
    With respect to Green Fresh, its misrepresentations on the record 
significantly impeded this proceeding as well. Like Gerber, Green Fresh 
also stated in its questionnaire responses that it acted as an agent 
for sales made and produced by Gerber, whereby it received a commission 
for exporting that merchandise on Gerber's behalf to the U.S. market 
during the POR (see May 23, 2002, submission at 11). In describing its 
role as Gerber's agent, Green Fresh indicated that it provided Gerber 
with specific export documents (i.e., an invoice, PRC Customs and 
quarantine inspection form, packing list, VAT refund form, and PRC 
Customs declaration form) for only a portion of Gerber's sales 
transactions during the POR (see December 23, 2003, submissions at 1 
and 2). Moreover, Green Fresh indicated that it had the data for these 
affected sales transactions and separately reported them in its 
supplemental response (see December 23, 2002, submission at 3). With 
respect to these affected sales transactions which it claimed it acted 
as Gerber's shipping agent, Green Fresh did not reveal to the 
Department until verification that it merely provided Gerber with blank 
sales invoices for purposes of enabling Gerber to ship its merchandise 
to the U.S. market during the POR at a lower cash deposit rate. 
Furthermore, although Green Fresh claimed that it actually arranged for 
the shipment of Gerber-produced merchandise included in these affected 
sales transactions (which were reported by both companies in their 
respective Section C sales listings), Green Fresh was unable to provide 
complete documentation for all of the affected sales transactions to 
support its claim that it served as a bona fide shipping agent on 
behalf of Gerber with respect to these sales (see February 12, 2003, 
Green Fresh verification report at 6-7 and exhibit 6P). Because these 
affected sales transactions were documented with invoices issued by 
Green Fresh and not by Gerber but could not be tied to records prepared 
by Green Fresh in the ordinary course of business, we were unable to 
verify the extent of Green Fresh's involvement with respect to these 
sales or to corroborate Green Fresh's statements. Therefore, given the 
fact that the sales in question were made using Green Fresh's invoices 
and that Green Fresh was unable to provide its own supporting 
documentation for all but one of these sales transactions, we question 
the reliability of Green Fresh's reported sales data, its sales 
documentation, and the additional data it provided at verification.
    Furthermore, the willingness of Green Fresh to assist another 
company to evade the payment of legally required cash deposits, as well 
as its consistent mis-characterization of the facts on the record 
(despite its representatives' certification of the facts contained in 
multiple submissions to the Department as truthful when they were not), 
leads us again to question the validity of the books and records 
examined by the Department at verification. Thus, consistent with our 
analysis for Gerber, we do not believe that Green Fresh's reported 
information can be relied upon by the Department in calculating an 
antidumping duty margin and cash deposit/assessment rates. 
Consequently, pursuant to sections 776(a)(2)(A), (C) and (D) of the 
Act, the Department is applying total facts available to Green Fresh. 
Furthermore, pursuant to section 776(b) of the Act, an adverse 
inference is warranted because Green Fresh's sale of invoices for 
purposes of aiding Gerber to evade cash deposits, as well as its mis-
characterization of the facts in this case, clearly demonstrate that 
Green Fresh did not act to the best of its ability during this 
administrative review.
    Thus, as adverse facts available, in light of record evidence of 
material misrepresentations by Green Fresh as noted above and the 
potential for future misconduct, the assignment of a cash deposit and 
assessment rate equal to the PRC-wide rate of 198.63 percent is 
appropriate. (See Issues and Decision Memorandum (``Decision Memo'') 
from Jeffrey May, Deputy Assistant Secretary for Import Administration, 
to Joseph A. Spetrini, Acting Assistant Secretary for Import 
Administration at Comment 1 for further discussion).

Corroboration of Facts Available

    Section 776(c) of the Act provides that where the Department 
selects from among the facts otherwise available and relies on 
``secondary information,'' the Department shall, to the extent 
practicable, corroborate that information from independent sources 
reasonably at the Department's disposal. The Statement of 
Administrative Action, H.R. Doc. 103-316 (``SAA''), states that 
``corroborate'' means to determine that the information used has 
probative value. See SAA at 870. To corroborate secondary information, 
the Department will, to the extent practicable, examine the reliability 
and relevance of the information to be used.
    In this segment of the proceeding, in accordance with Department 
practice, as adverse facts available, we have assigned to exports of 
the subject merchandise by Gerber and Green Fresh the PRC-wide rate of 
198.63 percent, a

[[Page 41308]]

rate that was calculated based on information contained in the 
petition. When using a previously calculated margin as facts available, 
for purposes of corroboration the Department will consider, in the 
context of the current review, whether that margin is both reliable and 
relevant. With respect to the relevancy aspect of corroboration, the 
Department stated in Tapered Roller Bearings and Parts Thereof, 
Finished and Unfinished, from Japan, and Tapered Roller Bearings, Four 
Inches or Less in Outside Diameter, and Components Thereof, from Japan; 
Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996) (``TRBs''), that it will ``consider information 
reasonably at its disposal as to whether there are circumstances that 
would render a margin irrelevant. Where circumstances indicate that the 
selected margin is not appropriate as adverse facts available, the 
Department will disregard the margin and determine an appropriate 
margin.'' See also Fresh Cut Flowers from Mexico; Preliminary Results 
of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 
22, 1996) (disregarding the highest margin in the case as best 
information available because the margin was based on another company's 
uncharacteristic business expense resulting in an extremely high 
margin).
    We corroborated the petition information, and found that we had not 
received any information that warranted revisiting the issue. See 
Notice of Preliminary Determination of Sales at Less-Than-Fair-Value: 
Certain Preserved Mushrooms from the People's Republic of China, 63 FR 
41794, 417988 (August 5, 1998). Similarly, no information has been 
presented in the current review that calls into question the 
reliability or the relevance of the information contained in the 
petition. Therefore, we have applied, as adverse facts available, the 
PRC-wide rate from prior administrative reviews of this order and have 
satisfied the corroboration requirements under section 776 of the Act. 
See Persulfates from the People's Republic of China: Preliminary 
Results of Antidumping Duty Administrative Review, 66 FR 18439, 18441 
(April 9, 2001) (employing a petition rate used as adverse facts 
available in a previous segment as the adverse facts available in the 
current review). We have determined that this rate has probative value 
and, therefore, is an appropriate rate to be applied in this review to 
exports of subject merchandise by Gerber and Green Fresh as facts 
otherwise available.

Partial Rescission of New Shipper Review

A. Zhangzhou Jingxiang

    We have rescinded this new shipper review with respect to Zhangzhou 
Jingxiang because it failed to provide us with the necessary 
documentation for determining which entity or entities own it and 
because it was unable to explain whether or not its owner was 
affiliated with any PRC exporters or producers of the subject 
merchandise (see Preliminary Results, 67 FR at 10696).

B. Shenzhen Qunxingyuan

    In the preliminary results, we determined that the sole U.S. sale 
of subject merchandise made by Shenzhen Qunxingyuan during the POR was 
not bona fide primarily because it was made at an aberrationally high 
price and an unreasonably low quantity relative to other commercial 
transactions involving comparable merchandise during the POR. In 
addition, Shenzhen Qunxingyuan did not have any other business activity 
or income beyond this sale during the POR or after the POR (at least 
until the date of verification). We also noted other questionable 
factors with respect to Shenzhen Qunxingyuan's customer. Based on the 
totality of the circumstances, we found that the quantity and value 
reported by Shenzhen Qunxingyuan did not provide a reasonable or 
reliable basis for the Department to calculate a dumping margin and we 
rescinded the new shipper review with respect to Shenzhen Qunxingyuan. 
See Memorandum from Louis Apple, Office Director, to Susan Kuhbach, 
Acting Deputy Assistant Secretary for Import Administration, Fourth New 
Shipper Review of Certain Preserved Mushrooms from the People's 
Republic of China: Whether the Sale Made by Shenzhen Qunxingyuan 
Trading Co., Ltd. Is Bona Fide (February 28, 2003) (``Preliminary Price 
and Quantity Analysis Memorandum'' ).
    We are also rescinding the new shipper review with respect to 
Shenzhen Qunxingyuan because we find that it did not have a bona fide 
U.S. sale during the POR, as required by 19 CFR 351.214(b)(2)(iv)(c), 
based on the totality of the facts on the record. In determining 
whether a sale was bona fide, the Department normally considers factors 
such as, inter alia,: (1) The timing of the sale, (2) the sale price 
and quantity, (3) the expenses arising from the sales transaction, (4) 
whether the sale was sold to the customer at a loss, and (5) whether 
the sales transaction between the exporter and importer was executed on 
an arm's-length basis. See American Silicon Technologies v. United 
States, 110 F. Supp. 2d 992, 996 (CIT 2000); see also Final Results of 
First New Shipper Review and First Antidumping Duty Administrative 
Review: Certain Preserved Mushrooms From the People's Republic of 
China, 66 FR 31204 (June 11, 2001) and the accompanying issues and 
decision memorandum. An examination of whether a sale is a bona fide 
transaction may be extensive and thus, may include a variety of these 
factors and others given the nature and circumstances of each company 
and its corresponding sales practices. In Shenzhen Qunxingyuan's case, 
we focused on the commercial income and viability of the company, the 
profitability of the sale in question, and its sale price relative to 
AUVs.
    In this case, we find that the price of its single reported sale 
was aberrationally high relative to the average unit value of all U.S. 
imports of comparable canned mushroom imports during the POR. More 
importantly, with respect to the commercial legitimacy of the one 
reported U.S. sale, we continue to find that Shenzhen Qunxingyuan had 
no other sales of any merchandise, subject or non-subject, during or 
after the POR and therefore, had no commercial income during this 
period. In addition, it appears that Shenzhen Qunxingyuan's reported 
U.S. sale incurred a loss. Therefore, we determine that the record 
evidence does not support a finding that this company is a bona fide 
commercial entity. Consequently, for the reasons discussed above, the 
Department finds that Shenzhen Qunxingyuan's sole U.S. sale during the 
POR was not a bona fide commercial transaction and does not provide a 
reasonable or reliable basis for the Department to calculate a dumping 
margin. See Decision Memo at Comment 2 for additional discussion.

Non-Adverse Facts Available

    For the final results of these reviews, we have determined it 
appropriate to treat water as a factor of production separate from 
factory overhead consistent with the Department's current practice (see 
Fresh Garlic From the People's Republic of China: Final Results of 
Antidumping New Shipper Review, 67 FR 72139 (December 4, 2002) and 
accompanying Issues and Decision Memorandum at Comment 7 (``Garlic'')).
    Shantou Hongda and Shenxian Dongxing reported water consumption 
data which appeared to be erroneous

[[Page 41309]]

when compared to the amount reported by Guangxi Yulin and verified by 
the Department. With respect to Shenxian Dongxing, because originally 
we did not consider its reported water consumption factor to be 
necessary for valuation purposes, we did not examine its water 
consumption data at verification. In the case of Shantou Hongda, we 
examined its water consumption at verification but it contained errors 
which rendered this data unreliable (see exhibit 12 of the Department's 
February 14, 2002, verification report for Shantou Hongda).
    Because Shantou Hongda and Shenxian Dongxing provided the 
Department with incomplete and/or unreliable information which could 
not be verified, use of facts available is appropriate pursuant to 
section 776(a)(2)(D) of the Act. We believe that Shantou Hongda and 
Shenxian Dongxing were unaware at the time the Department requested 
this information that it would be necessary to use the water 
consumption data in its margin calculation because the Department had 
not separately valued this input in any prior segment of this 
proceeding. Thus, in order to account for water consumption usage by 
each of these respondents in the final results, as non-adverse facts 
available, we have used the water factor reported by Guangxi Yulin, the 
only other respondent under review (for which we are calculating a 
margin in the final results) which reported a correct and complete 
water factor (as verified by the Department), and valued water for the 
other respondents using Guangxi Yulin's reported water factor. See 
Decision Memo at Comment 5.

Analysis of Comments Received

    All issues raised in the case briefs are addressed in the Decision 
Memo, which is hereby adopted by this notice. A list of the issues 
raised, all of which are in the Decision Memo, is attached to this 
notice as an Appendix. Parties can find a complete discussion of all 
issues raised in the briefs and the corresponding recommendations in 
this public memorandum which is on file in the Central Records Unit, 
room B-099 of the main Department building. In addition, a complete 
version of the Decision Memo can be accessed directly on the Web at 
http://ia.ita.doc.gov. The paper copy and electronic version of the 
Decision Memo are identical in content.

Changes Since the Preliminary Results

    Based on the use of additional publicly available information and 
the comments received from the interested parties, we have made changes 
in the margin calculation for each respondent. For a discussion of 
these changes, see the ``Margin Calculations'' section of the Decision 
Memo.
    For the final results, we calculated average surrogate percentages 
for factory overhead, SG&A expenses, and profit using the 2001-2002 
financial reports of Agro Dutch Foods Ltd. (``Agro Dutch'') and Flex 
Foods Ltd. (``Flex Foods''). See Decision Memo at Comment 4.
    We used freight rates published in the February 2002-June 2002 
issues of Chemical Weekly and obtained distances between cities from 
the following Web sites: http://www.infreight.com and http://www.sitaindia.com/Packages/CityDistance.php.
    We treated water as a separate factor of production. To value 
water, we used 1995-1996 and 1996-1997 data from the Second Water 
Utilities Data Book. Since this value was not contemporaneous with the 
POR, we adjusted this value for inflation based on wholesale price 
indices published in the International Monetary Fund's International 
Financial Statistics. As discussed above, two respondents (i.e., 
Shantou Hongda and Shenxian Dongxing) did not provide the Department 
with complete and/or reliable water consumption information which could 
be verified. Therefore, as facts available, we have used the amount 
reported by Guangxi Yulin, the only respondent under review which 
reported a correct and complete water factor (as verified by the 
Department), and applied it to the surrogate value for water for the 
two respondents at issue. See ``Non-Adverse Facts Available'' section 
above and Decision Memo at Comment 5.
    To value tin can sets (i.e., the can with the lid) for the 
respondents which produced their cans during the POR (i.e., Guangxi 
Yulin and Shenxian Dongxing), we used 2001-2002 actual can-size-
specific price data submitted by Agro Dutch in the 3rd antidumping duty 
administrative review of certain preserved mushrooms from India. 
However, for the respondents which only purchased their cans during the 
POR (i.e., Shantou Hongda), we continued to use 2000-2001 price data 
from the May 21, 2001, public version response submitted by Agro Dutch 
in the 2nd antidumping duty administrative review of certain preserved 
mushrooms from India, and relied on the petitioners' methodology 
contained in its September 6, 2002, publicly available information 
submission for purposes of deriving per-unit, can-size-specific prices. 
See Decision Memo at Comment 6.
    To value urea (carbamide), we used data in the 2001-2002 financial 
report of Flex Foods and February 2001-January 2002 data in Chemical 
Weekly.
    To value super phosphate and grain, we used data in the 2001-2002 
financial report of Flex Foods.
    To value spawn, cow manure and straw, we used price data contained 
in the 2001-2002 financial reports of Flex Foods and Agro Dutch.
    To value gypsum, we used the 2001-2002 financial report of Flex 
Foods and April 2001-December 2001 data from Monthly Statistics of the 
Foreign Trade of India (``Monthly Statistics'').
    To value copper wire scrap, we used April 2001-December 2001 data 
from Monthly Statistics because this value is more specific to the 
product than the value used in the preliminary results. See Decision 
Memo at Comment 8.
    We corrected a programming error by including Guangxi Yulin's tape 
cost only in its total packing costs (and not in its material costs).
    We corrected a calculation error by including the total surrogate 
cost for seal glue in Guangxi Yulin's total material costs.

Final Results of Reviews

    We determine that the following weighted-average margin percentages 
exist for the period February 1, 2001, through January 31, 2002:

------------------------------------------------------------------------
                                                                Margin
                          Exporter                            (percent)
------------------------------------------------------------------------
Gerber Food (Yunnan) Co., Ltd..............................       198.63
Green Fresh Foods (Zhangzhou) Co., Ltd.....................       198.63
Guangxi Yulin Oriental Food Co., Ltd. (``Guangxi Yulin'')..         0.00
Guangxi Yulin/All Others...................................       198.63
Shantou Hongda Industrial General Corporation..............       122.07
Shenxian Dongxing Foods Co., Ltd...........................        61.37
PRC-Wide Rate..............................................       198.63
------------------------------------------------------------------------

Assessment Rates

    The Department shall determine, and the U.S. Bureau of Customs and 
Border Protection (``BCBP'') shall assess, antidumping duties on all 
appropriate entries. The Department will issue appropriate appraisement 
instructions for the companies subject to these reviews directly to the 
BCBP within 15 days of publication of the final results of these 
reviews. For assessment purposes, we do not have the actual entered 
value for any of the respondents for which we calculated a margin 
because it is not the importer of record for the subject merchandise. 
Therefore, we have calculated individual importer- or customer-specific 
assessment rates by aggregating the dumping margins calculated for all 
of the U.S. sales

[[Page 41310]]

examined and dividing that amount by the total quantity of the sales 
examined. For Shenxian Dongxing, however, because we find that its 
quantity data is unreliable, we will instruct the BCBP to apply 
Shenxian Dongxing's margin to the entered value of its subject 
merchandise as reported to the BCBP during the POR. 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 have calculated importer- or customer-specific ad 
valorem ratios based on export prices. We will instruct the BCBP to 
assess antidumping duties on all appropriate entries covered by these 
reviews if any importer or customer-specific assessment rate calculated 
in the final results of these reviews is above de minimis. For entries 
of the subject merchandise during the POR from companies not subject to 
these reviews, we will instruct the BCBP to liquidate them at the cash 
deposit in effect at the time of entry.

Cash Deposit Requirements

    Bonding will no longer be permitted to fulfill security 
requirements for shipments from Guangxi Yulin, Shenzhen Qunxingyuan, or 
Zhangzhou Jingxiang of certain preserved mushrooms from the PRC 
entered, or withdrawn from warehouse, for consumption on or after the 
publication date of these final results.
    The following deposit rates shall be required for merchandise 
subject to the order entered or withdrawn from warehouse, for 
consumption on or after the publication date of these final results, as 
provided by section 751(a)(1) and 751(a)(2)(B) of the Act: (1) The cash 
deposit rates for Gerber, Green Fresh, Guangxi Yulin (i.e., for subject 
merchandise both manufactured and exported by Guangxi Yulin), Shantou 
Hongda, and Shenxian Dongxing will be the rates indicated above; (2) 
the cash deposit rate for PRC exporters for whom the Department has 
rescinded the review or for which a review was not requested (e.g., 
China Processed, Compania Envasador, and Raoping Xingyu) will continue 
to be the rate assigned in an earlier segment of the proceeding or the 
PRC-wide rate of 198.63 percent, whichever applicable; (3) the cash 
deposit rate for the PRC NME entity (including Shenzhen Qunxingyuan and 
Zhangzhou Jingxiang) and for subject merchandise exported but not 
manufactured by Guangxi Yulin will continue to be the PRC-wide rate of 
198.63 percent; and (4) the cash deposit rate for non-PRC exporters of 
subject merchandise from the PRC will be the rate applicable to the PRC 
supplier of that exporter. These deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.
    This notice also serves as a final 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 doubled antidumping duties.
    This notice also serves as the only reminder to parties subject to 
administrative protective orders (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305(a). Timely 
written notification of the return/destruction of APO materials or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and terms of an APO is a violation which is 
subject to sanction.
    We are issuing and publishing these determinations and notice in 
accordance with sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act 
and 19 CFR 351.213 and 351.214.

    Dated: July 3, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.

Appendix--Issues in Decision Memo

Comments

    1. The Application of Facts Available to Gerber and Green Fresh.
    2. The Bona Fides of Shenzhen Qunxingyuan's U.S. Sale.
    3. The Rescission of the New Shipper Review for Guangxi Yulin.
    4. The Use of Himalya's Financial Data to Derive Surrogate 
Percentages.
    5. The Valuation of Water.
    6. Surrogate Value for Cans.
    7. The Treatment of Tin Scrap as an Offset.
    8. Surrogate Value for Copper Wire Scrap.

[FR Doc. 03-17628 Filed 7-10-03; 8:45 am]
BILLING CODE 3510-DS-P