[Federal Register Volume 68, Number 250 (Wednesday, December 31, 2003)]
[Notices]
[Pages 75486-75488]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-32228]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-122-849]


Notice of Initiation of Antidumping Investigation: Ready-to-Cook 
Kosher Chicken and Parts Thereof From Canada

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

ACTION: Initiation of Antidumping Investigation.

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EFFECTIVE DATE: December 31, 2003.

FOR FURTHER INFORMATION CONTACT: Magd Zalok at (202) 482-4162 or Howard 
Smith at (202) 482-5193, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230.

Initiation of Investigation

The Petition

    On December 1, 2003, the Department of Commerce (the Department) 
received a petition against imports of ready-to-cook Kosher chicken and 
parts thereof from Canada, filed in proper form by Empire Kosher 
Poultry, Inc. (the petitioner). On December 9, 2003, the Department 
issued a questionnaire to the petitioner requesting additional 
information and clarification of certain information contained in the 
petition. The Department received a response to its questionnaire on 
December 11, 2003.
    In accordance with section 732(b)(1) of the Tariff Act of 1930, as 
amended (the Act), the petitioner alleges that imports of ready-to-cook 
Kosher chicken and parts thereof from Canada are being, or are likely 
to be, sold in the United States at less-than-fair-value (LTFV) within 
the meaning of section 731 of the Act, and that such imports from 
Canada are materially injuring, or are threatening to materially 
injure, an industry in the United States.
    The Department finds that the petitioner filed this petition on 
behalf of the domestic industry because it is an interested party, as 
defined in section 771(9)(C) of the Act, and it has demonstrated 
sufficient industry support with respect to the antidumping 
investigation that it is requesting the Department to initiate. See 
infra, ``Determination of Industry Support for the Petition.''

Scope of Investigation

    The merchandise covered by this investigation is ready-to-cook 
chicken from Canada, whether fresh, chilled or frozen and whether whole 
or cut-up in pieces, that has been certified as Kosher or Glatt Kosher. 
Symbols indicating kosher certification include, but are not limited 
to, COR, MK, OU, CRC. Ready to cook Kosher and Glatt kosher chicken is 
also identified by the number of the agricultural plant in Canada from 
which the product originated. For instance, ready-to-cook Kosher 
chicken manufactured in plant number 24 carries the COR symbol 
representing the Canadian Jewish Congress of Toronto.
    Excluded from the scope of this investigation are Kosher or Glatt 
Kosher chicken wings (if unattached to any other chicken part) and 
offal, such as necks, gizzards, livers, and hearts. Cooked chicken or 
chicken parts, ready to cook non-kosher whole chicken or chicken parts 
are outside the scope of this investigation. The merchandise subject to 
this investigation is classifiable under subheadings 0207.11.00.20, 
0207.11.00.40, 0207.12.00.20, 0207.12.00.40, 0207.13.00.00, and 
0207.14.00.40 of the Harmonized Tariff Schedule of the United States 
(HTSUS).
    Although the HTSUS subheadings are provided for convenience and 
customs

[[Page 75487]]

purposes, our written description of the scope of this investigation is 
dispositive.
    As discussed in the preamble to the Department's regulations 
(Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 
27323 (May 19, 1997)), we are setting aside a period for parties to 
raise issues regarding product coverage. The Department encourages all 
parties to submit such comments within 20 days of publication of this 
notice. Comments should be addressed to Import Administration's Central 
Records Unit, Room 1870, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230. The period of scope 
consultations is intended to provide the Department with ample 
opportunity to consider all comments and consult with parties prior to 
the issuance of the preliminary determination.

Period of Investigation

    The anticipated period of investigation (POI) is October 1, 2002, 
through September 30, 2003.

Determination of Industry Support for the Petition

    Section 732(b)(1) of the Act requires that a petition be filed on 
behalf of the domestic industry. Section 732(c)(4)(A) of the Act 
provides that the Department's industry support determination, which is 
to be made before the initiation of the investigation, be based on 
whether a minimum percentage of the relevant industry supports the 
petition. The Department shall determine that the petition has been 
filed by, or on behalf of, the industry if the domestic producers or 
workers who support the petition account for: (1) at least 25 percent 
of the total production of the domestic like product; and (2) more than 
50 percent of the production of the domestic like product produced by 
that portion of the industry expressing support for, or opposition to, 
the petition. Moreover, section 732(c)(4)(D) of the Act provides that, 
if the petition does not establish support of domestic producers or 
workers accounting for more than 50 percent of the total production of 
the domestic like product, the Department shall: i) poll the industry 
or rely on other information in order to determine if there is support 
for the petition, as required by subparagraph (A), or ii) determine 
industry support for the petition using any statistically valid 
sampling method to poll the industry.
    Section 771(4)(A) of the Act defines the ``industry'' as the 
producers of a domestic like product. Thus, to determine whether a 
petition has the requisite industry support, the statute directs the 
Department to look to producers and workers who produce the domestic 
like product. The International Trade Commission (ITC), which is 
responsible for determining whether ``the domestic industry'' has been 
injured, must also determine what constitutes a domestic like product 
in order to define the industry. While both the Department and the ITC 
must apply the same statutory definition regarding the domestic like 
product (section 771(10) of the Act), they do so for different purposes 
and pursuant to a separate and distinct authority. In addition, the 
Department's determination is subject to limitations of time and 
information. Although this may result in different definitions of the 
like product, such differences do not render the decision of either 
agency contrary to the law.\1\
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    \1\ See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (Ct. 
Int'l Trade 2001), citing Algoma Steel Corp. Ltd. v. United States, 
688 F. Supp. 639, 642-44 (Ct. Int'l Trade 1988) (``the ITC does not 
look behind ITA's determination, but accepts ITA's determination as 
to which merchandise is in the class of merchandise sold at LTFV'').
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    Section 771(10) of the Act defines the domestic like product as ``a 
product which is like, or in the absence of like, most similar in 
characteristics and uses with, the article subject to an investigation 
under this title.'' Thus, the reference point from which the domestic 
like product analysis begins is ``the article subject to an 
investigation,'' i.e., the class or kind of merchandise to be 
investigated, which normally will be the scope as defined in the 
petition.
    The petitioner does not offer a definition of domestic like product 
distinct from the scope of the investigation. Based on our analysis of 
the information presented by the petitioner, we have determined that 
there is a single domestic like product, ready-to-cook Kosher chicken 
and parts thereof, which is defined in the ``Scope of Investigation'' 
section above, and we have analyzed industry support in terms of this 
domestic like product.
    The petition identifies a number of U.S. companies, in addition to 
Empire Kosher Poultry, Inc., that are engaged in the production of 
ready-to-cook Kosher chicken. The petition includes a letter from one 
of these companies, David Elliot Poultry Farm, in which the company 
states that it supports the petition. The Department received no 
opposition to the petition from domestic producers of the like product.
    Our review of the data provided in the petition indicates that the 
petitioner has established industry support representing over 50 
percent of total production of the domestic like product. Therefore, 
the domestic producers or workers who support the petition account for 
at least 25 percent of the total production of the domestic like 
product, and the requirements of section 732(c)(4)(A)(i) of the Act are 
met. Furthermore, the domestic producers or workers who support the 
petition account for more than 50 percent of the production of the 
domestic like product produced by that portion of the industry 
expressing support for or opposition to the petition. Thus, the 
requirements of section 732(c)(4)(A)(ii) of the Act also are met. 
Finally, because the petition has established industry support 
representing over 50 percent of total production of the domestic like 
product, industry polling is unnecessary. Accordingly, the Department 
determines that the petition was filed on behalf of the domestic 
industry within the meaning of section 732(b)(1) of the Act. See also 
Office of AD/CVD Enforcement Initiation Checklist (Initiation 
Checklist), Attachment I, Industry Support section, dated December 22, 
2003, on file in the Central Records Unit, Room B-099 of the main 
Department of Commerce building.

Export Price and Normal Value

    The following is a description of the allegation of sales at LTFV 
upon which the Department based its decision to initiate this 
investigation. The sources of data used to derive the deductions and 
adjustments relating to U.S. price and normal value (NV) are discussed 
in greater detail in the Initiation Checklist. Should the need arise to 
use any of this information as facts available under section 776 of the 
Act in our preliminary or final determination, we may re-examine the 
information and revise the margin calculations, if appropriate.

Export Price

    The petitioner alleged that the ready-to-cook Kosher chicken and 
parts thereof produced in Canada by Chai Poultry Inc. (Chai Poultry) 
and Marvid Poultry Inc. (Marvid) was sold to U.S. distributors prior to 
importation of the merchandise into the United States. Therefore, the 
petitioner based U.S. price on export price (EP). The petitioner based 
EP for ready-to-cook Kosher chicken and parts thereof on price quotes 
provided to U.S. distributors by Chai Poultry for whole ready-to-cook 
Kosher chicken, Kosher chicken legs, and boneless skinless Kosher 
chicken breasts, reduced by estimated freight charges.

[[Page 75488]]

Normal Value

    The petitioner based NV on prices reflected in three invoices that 
Chai Poultry issued to a Canadian distributor during the POI. These 
invoices are for sales of whole Kosher chicken, Kosher chicken legs, 
and boneless skinless Kosher chicken breasts. The petitioner adjusted 
the invoice prices for movement charges in the home market and 
differences in the costs incurred to pack merchandise for sale in the 
U.S. and home markets.
    The estimated dumping margins in the petition, based on a 
comparison between EP and NV, range from 33.33 percent to 39.54 
percent.

Fair Value Comparisons

    Based on the data provided by the petitioner, there is reason to 
believe that imports of ready-to-cook Kosher chicken and parts thereof 
from Canada are being, or are likely to be, sold at LTFV.

Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that the U.S. industry producing the 
domestic like product is being materially injured, or is threatened 
with material injury, by reason of imports from Canada of the subject 
merchandise sold at less than NV.
    The petitioner contends that the industry's injured condition is 
evident in the sales volume and market share lost to unfair imports, as 
well as in the rapidly declining and depressed U.S. prices. The 
allegations of injury and causation are supported by relevant evidence 
including U.S. import data, lost sales, and pricing information. We 
have assessed the allegations and supporting evidence regarding 
material injury and causation, and we have determined that these 
allegations are properly supported by adequate evidence and meet the 
statutory requirements for initiation. See the Initiation Checklist, 
Attachment II.

Initiation of Antidumping Investigation

    Based upon our examination of the petition on ready-to-cook Kosher 
chicken and parts thereof from Canada, we find that it meets the 
requirements of section 732 of the Act. Therefore, we are initiating an 
antidumping investigation to determine whether imports of ready-to-cook 
Kosher chicken and parts thereof from Canada are being, or are likely 
to be, sold in the United States at LTFV. Unless the deadline is 
extended pursuant to section 733(b)(1)(A) of the Act, we will make our 
preliminary determination no later than 140 days after the date of this 
initiation.

Distribution of Copies of the Petition

    In accordance with section 732(b)(3)(A) of the Act, a copy of the 
public version of the petition has been made available to the 
representatives of the Government of Canada. We will attempt to provide 
a copy of the public version of the petition to each exporter named in 
the petition, as provided for under 19 CFR Sec.  351.203(c)(2).

ITC Notification

    We will notify the ITC of our initiation as required by section 
732(d) of the Act.

Preliminary Determination by the ITC

    The ITC will preliminarily determine no later than January 15, 
2004, whether there is a reasonable indication that imports of ready-
to-cook Kosher chicken and parts thereof from Canada are causing 
material injury, or threatening to cause material injury, to a U.S. 
industry. A negative ITC determination will result in the investigation 
being terminated; otherwise, this investigation will proceed according 
to statutory and regulatory time limits.
    This notice is issued and published pursuant to section 777(i) of 
the Act.

    Dated: December 22, 2003.
Holly A. Kuga,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-32228 Filed 12-30-03; 8:45 am]
BILLING CODE 3510-DS-P