[Federal Register Volume 68, Number 149 (Monday, August 4, 2003)]
[Notices]
[Pages 45792-45793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19754]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-851]


Certain Preserved Mushrooms From the People's Republic of China: 
Intent To Rescind Antidumping Duty New Shipper Review

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

ACTION: Notice of intent to rescind antidumping duty new shipper 
review.

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SUMMARY: In response to requests from Xiamen Zhongjia Imp. & Exp. Co., 
Ltd. and Zhangzhou Longhai Minhui Industry and Trade Co., Ltd., the 
Department of Commerce initiated a new shipper review of the 
antidumping duty order on certain preserved mushrooms from the People's 
Republic of China. The period of review is February 1, 2002, through 
July 31, 2002.
    For the reasons discussed below, we intend to rescind the new 
shipper review with respect to both companies listed above. We invite 
interested parties to comment on this intent to rescind.

EFFECTIVE DATE: August 4, 2003.

FOR FURTHER INFORMATION CONTACT: Brian C. Smith, Davina Hashmi, or 
James Mathews, Office of AD/CVD Enforcement 1, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC, 20230; telephone: 
(202) 482-1766, (202) 482-0984, and (202) 482-2778, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Commerce (``the Department'') initiated a new 
shipper review covering Xiamen Zhongjia Imp. & Exp. Co., Ltd. 
(``Zhongjia''), and Zhangzhou Longhai Minhui Industry and Trade Co., 
Ltd. (``Minhui''), on September 30, 2002. This initiation was based on, 
among other things, each company's certification that it was both the 
exporter and producer of the subject merchandise for which it requested 
a new shipper review. See Certain Preserved Mushrooms from the People's 
Republic of China: Initiation of New Shipper Antidumping Duty Review, 
67 FR 62438 (October 7, 2002) (``Initiation Notice''). On October 8, 
2002, the Department issued the antidumping duty questionnaire to both 
companies.
    During the period December 2002 through July 2003, the Department 
received responses to sections A, C, and D of the Department's original 
and two supplemental questionnaires from Zhongjia and Minhui. In these 
responses, Zhongjia and Minhui revealed that they were not the producer 
of the subject merchandise they exported to the United States during 
the period of review (``POR'').

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.\1\
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    \1\ On June 19, 2000, the Department affirmed that 
``marinated,'' ``acidified,'' or ``pickled'' mushrooms containing 
less than 0.5 percent acetic acid are within the scope of the 
antidumping duty order. See ``Recommendation Memorandum--Final 
Ruling of Request by Tak Fat, et al. for Exclusion of Certain 
Marinated, Acidified Mushrooms from the Scope of the Antidumping 
Duty Order on Certain Preserved Mushrooms from the People's Republic 
of China,'' dated June 19, 2000.
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    The merchandise subject to this order is classifiable under 
subheading: 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 (``HTS''). Although the HTSUS subheadings 
are provided for convenience and customs purposes, the written 
description of the scope of this order is dispositive.

Intent To Rescind Review

    For the reasons stated below, we intend to rescind the new shipper 
review with respect to Zhongjia and Minhui.
    Specifically, we intend to rescind the new shipper review with 
respect to both companies because neither exporter provided us with the 
proper certification, pursuant to 19 CFR 351.214(b)(2)(ii)(B), for 
entitlement to a new shipper review.
    In order to qualify for a new shipper review under 19 CFR 
351.214(b)(2)(ii), a company which is an exporter but not the producer 
of the subject merchandise for which it requests such a review must 
provide, among other things, (1) a certification that it did not export 
subject merchandise to the United States during the period of 
investigation (``POI''), and (2) a certification from the person or 
company which produced or supplied the subject merchandise that the 
producer or supplier did not export the subject merchandise to the 
United States during the POI (see 19 CFR 351.214(2)(ii)(A) and (B)).
    As the basis for initiating this new shipper review, both Zhongjia 
and Minhui each stated and certified in its request for review that it 
was the exporter and producer of the subject merchandise. Therefore, 
for purposes of initiating this review and based on the certifications 
provided by both Zhongjia and Minhui in accordance with 19 CFR 
351.214(b)(2)(i), the Department was led to believe that both companies 
also produced the merchandise for which each requested a review (see 
page 1 of Zhongjia's August 30, 2002, submission and page 1 of Minhui's 
August 30, 2002, submission). Zhongjia and Minhui appeared to be in 
compliance with the certification requirements for a new shipper which 
was both an exporter and producer of the subject merchandise for which 
the new shipper review request had been filed, and it was on this basis 
the Department initiated a new shipper review for each company (see 19 
CFR 351.214(b)(i) and Initiation Notice, 68 FR at 62439). Relying on 
the certification provided by each respondent, the Department issued 
instructions to the U.S. Bureau of Customs and Border Protection 
(``BCBP'') in accordance with section 751(a)(2)(B) of the Tariff Act of 
1930, as amended (``the Act''), which allowed, at the option of the 
importer, the posting,

[[Page 45793]]

until the completion of the review, of a bond or security in lieu of a 
cash deposit for each entry of the subject merchandise for which each 
respondent was both the producer and exporter (see Initiation Notice, 
67 FR at 62439).
    During the course of conducting this review and in response to the 
Department's original and supplemental questionnaires, however, both 
companies provided factors of production data which indicated that 
neither company was the producer of the subject merchandise it reported 
in its U.S. sales listing (see page 5 of Zhongjia's December 4, 2002, 
Section A questionnaire response, page 2 of Zhongjia's December 4, 
2002, Section D questionnaire response, and pages 8 through 14 of 
Zhongjia's July 3, 2003, second supplemental questionnaire response; 
see page 5 of Minhui's December 4, 2002, Section A questionnaire 
response, page 2 of Minhui's December 4, 2002, Section D response, and 
pages 9 through 11 of Minhui's July 3, 2003, second supplemental 
questionnaire response). This data conflicted with each company's 
certification, for purposes of initiation, that it was both the 
exporter and producer of the merchandise subject to this review. 
Consequently, Zhongjia and Minhui misstated the facts when each claimed 
in its respective new shipper review request that it was both the 
exporter and producer of the merchandise subject to this review.
    Because Zhongjia and Minhui did not provide a certification from 
the respective producers of the subject merchandise they sold or 
exported to the United States during the POR in accordance with 19 CFR 
351.214(b)(2)(ii)(B), neither respondent met the minimum requirements 
for an entitlement to a new shipper review. Had we realized that these 
exporters were not also the producers of the merchandise for which they 
were requesting a new shipper review at the initiation stage, we would 
not have initiated this review. The certification omission is 
fundamental to the initiation decision, and the exporters' failure to 
provide the necessary certifications, in addition to their misleading 
statements contained within the submitted certifications that these 
exporters were also ``producers'' of subject merchandise, would have 
led the Department to determine not to initiate a new shipper review of 
these exporters.
    Consequently, the Department determines that it should not conduct 
further a review that was initiated based on faulty data (see, e.g., 
Fresh Garlic from the People's Republic of China: Partial Rescission of 
Antidumping Duty New Shipper Review, 67 FR 65782 (October 28, 2002)). 
To do so permits manipulation of the new shipper review provision and 
allows parties, such as Zhongjia and Minhui, to reap the benefit of the 
new shipper bonding provision without meeting the minimal threshold 
requirements for entitlement to the new shipper review process (see 
Import Administration Policy Bulletin Number 03.2, entitled 
``Combination Rates in New Shipper Reviews,'' dated March 4, 2003). 
Indeed, if an exporter ships to the United States merchandise produced 
by another entity but, because of mis-certification, its importers 
receive the bond benefit for its self-produced merchandise during the 
new shipper review, then the wrong exporter/producer combination 
benefits from the bonding privilege as long as the new shipper review 
continues. Thus, rescission of the new shipper review rectifies this 
problem.
    Because each respondent exporter's certification contained in its 
August 30, 2002, request for a new shipper review did not also contain 
a certification from the producer of the subject merchandise as 
required by 19 CFR 351.214(b)(2)(ii)(B), which each respondent was 
required to provide because neither company produced the merchandise 
subject to this review, as affirmed by the information contained in 
subsequent questionnaire responses, we find that there is a sufficient 
basis to rescind this new shipper review with respect to both companies 
for the reasons outlined above.

Comment Period

    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, within 30 days of the 
date 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). Any hearing, if requested, will be held on September 10, 
2003. Parties should confirm by telephone the time, date, and place of 
the hearing 48 hours before the scheduled time.
    Issues raised in the hearing will be limited to those raised in 
case briefs and rebuttal briefs. Case briefs from interested parties 
may be submitted not later than August 27, 2003. Rebuttal briefs, 
limited to issues raised in the case briefs, will be due not later than 
September 3, 2003. 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 its final decision, including the results 
of its analysis of issues raised in any such written briefs or at the 
hearing, if held, not later than 90 days after the date of issuance of 
this notice.

Notification

    If we rescind this review, bonding will no longer be permitted to 
fulfill security requirements for shipments from Minhui or Zhongjia of 
certain preserved mushrooms from the PRC entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final rescission notice. The cash deposit rate required for subject 
merchandise from the PRC NME entity (including Zhongjia and Minhui), 
entered or withdrawn from warehouse, for consumption on or after the 
publication of the final rescission notice will continue to be the PRC-
wide rate of 198.63 percent. These deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.
    This preliminary rescission notice is in accordance with sections 
751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214.

    Dated: July 28, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.
[FR Doc. 03-19754 Filed 8-1-03; 8:45 am]
BILLING CODE 3510-DS-P