[Federal Register Volume 71, Number 130 (Friday, July 7, 2006)]
[Notices]
[Pages 38617-38620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-10667]



[[Page 38617]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-851]


Certain Preserved Mushrooms from the People's Republic of China: 
Preliminary Results of the Antidumping Duty New Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is currently 
conducting a new shipper review (``NSR'') of the antidumping duty order 
on certain preserved mushrooms from the People's Republic of China 
(``PRC'') covering the period February 1, 2005, through August 15, 
2005. We preliminarily determine that sales have been made below normal 
value (``NV'') with respect to Guangxi Eastwing Trading Co., Ltd. 
(``Eastwing''), which participated fully and is entitled to a separate 
rate in this review. If these preliminary results are adopted in our 
final results of this review, we will instruct U.S. Customs and Border 
Protection (``CBP'') to assess antidumping duties on entries of subject 
merchandise during the period of review (``POR'') for which the 
importer-specific assessment rates are above de minimis.

EFFECTIVE DATE: July 7, 2006.

FOR FURTHER INFORMATION CONTACT: Matthew Renkey, AD/CVD Operations, 
Office 9, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-2312.

SUPPLEMENTARY INFORMATION:

Case History

General

    On February 19, 1999, the Department published in the Federal 
Register an amended final determination and antidumping duty order on 
certain preserved mushrooms from the PRC. See Notice of Amendment of 
Final Determination of Sales at Less Than Fair Value and Antidumping 
Duty Order: Certain Preserved Mushrooms from the People's Republic of 
China, 64 FR 8308 (February 19, 1999). On August 23, 2005, we received 
a timely new shipper review request in accordance with section 
751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 
section 351.214(c) of the Department's regulations, from an exporter, 
Eastwing, and its producer, Raoping CXF Foods, Inc. (``CXF''). On 
October 7, 2005, the Department published a notice in the Federal 
Register initiating a NSR for Eastwing. See Certain Preserved Mushrooms 
from the People's Republic of China: Initiation of New Shipper Review, 
70 FR 58686 (October 7, 2005) (``Initiation Notice'').
    On January 19, 2006, we issued a memorandum that extended the end 
of the POR from July 31, 2005, to August 15, 2005, in order to capture 
the entry of Eastwing's merchandise into the United States market. See 
Memorandum to the File from Matthew Renkey, Senior Analyst, through 
Alex Villanueva, Program Manager, Office 9: Expansion of the Period of 
Review in the New Shipper Review of Certain Preserved Mushrooms from 
the People's Republic of China, dated January 19, 2006. On February 16, 
2006, we placed the entry package we received from CBP for Eastwing's 
new shipper sale on the record of this review. See Memorandum to the 
File from Matthew Renkey, Senior Analyst, through Alex Villanueva, 
Program Manager, Office 9: Certain Preserved Mushrooms from the 
People's Republic of China: Entry Packages from U.S. Customs and Border 
Protection (``CBP''), dated February 16, 2006.

Questionnaires and Responses

    On October 21, 2005, we issued sections A, C, and D of the general 
antidumping duty questionnaire to Eastwing, along with the standard 
importer questionnaire for new shipper reviews. Eastwing submitted its 
response to section A of the questionnaire on November 21, 2005, and 
subsequently submitted its response to sections C, D, and the importer 
questionnaire on November 25, 2005. On December 6, 2005, we issued our 
first supplemental questionnaire for sections A, C and D; Eastwing 
filed its response to this supplemental questionnaire on December 20, 
2005. On December 14, 2005, we sent a supplemental questionnaire to 
Eastwing's importer; Eastwing's importer filed its response on December 
22, 2005.
    On January 12, 2006, we sent Eastwing a second supplemental 
questionnaire for sections A, C, and D, and Eastwing submitted its 
response on January 26, 2006. We issued a third supplemental 
questionnaire to Eastwing, covering sections A, C, and D, as well as a 
question for Eastwing's importer, on March 23, 2006. Eastwing filed its 
response to this supplemental questionnaire (including a response to 
the question for the importer) on April 3, 2006.
    Surrogate Country and Values
    On November 30, 2005, we requested from the Office of Policy a 
memorandum listing surrogate countries. We received a list of surrogate 
countries on December 16, 2005, and in a letter dated December 19, 
2005, notified parties of the opportunity to submit comments on 
surrogate country selection. Additionally, in the same letter, we also 
provided interested parties an opportunity to submit surrogate value 
comments. No party submitted surrogate country selection comments. On 
January 20, 2006, we issued our surrogate country selection memorandum. 
See Memorandum to the File from Matthew Renkey, Senior Analyst, through 
Alex Villanueva, Program Manager, Office 9, and Jim Doyle, Director, 
Office 9: Antidumping Duty New Shipper Review of Certain Preserved 
Mushrooms from the People's Republic of China: Selection of a Surrogate 
Country, dated January 20, 2006 (``Surrogate Country Memo''). To date, 
no party has submitted comments on surrogate values.

Period of Review

    The POR covers February 1, 2005, through August 15, 2005.

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 
certain preserved mushrooms covered under this order are the species 
Agaricus bisporus and Agaricus bitorquis. ``Certain 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. Certain 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

[[Page 38618]]

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. On February 9, 2005, this decision was upheld 
by the United States Court of Appeals for the Federal Circuit. See 
Tak Fat v. United States, 39C F.3d 1378 (Fed. Cir. 2005).
---------------------------------------------------------------------------

    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 (``HTSUS''). Although the HTSUS 
subheadings are provided for convenience and customs purposes, the 
written description of the scope of this order is dispositive.

Verification

    On April 4, 2006, we issued the verification outline to Eastwing. 
The Department conducted verification of the questionnaire responses 
submitted by Eastwing at its office in Nanning, PRC from April 17-18, 
2006, and at its producer's factory in Raoping, PRC from April 20-21, 
2006. We used standard verification procedures, including on-site 
inspection of the manufacturer's and exporter's facilities, and 
examination of relevant sales and financial records. Our verification 
results are outlined in the verification report, which is being issued 
concurrently with this notice. For further discussion, see Memorandum 
to the File from Matthew Renkey, Senior Analyst, Office 9, through Alex 
Villanueva, Program Manager, Office 9: Verification of the Sales 
Response of Guangxi Eastwing Trading Co., Ltd. and the Factors of 
Production Response of Raoping CXF Foods, Inc. in the Antidumping Duty 
New Shipper Review of Certain Preserved Mushrooms from the People's 
Republic of China, dated June 27, 2006, (``Eastwing Verification 
Report'').
    Consistent with the Department's practice, we investigated the bona 
fide nature of the sale made by Eastwing for this new shipper review. 
We found that Eastwing's new shipper sale was made on a bona fide 
basis. Based on our investigation into the bona fide nature of the 
sales, the questionnaire responses submitted by each company, and our 
verification thereof, as well as Eastwing's eligibility for a separate 
rate (see below) and the Department's preliminary determination that 
Eastwing was not affiliated with any exporter or producer that had 
previously shipped subject merchandise to the United States, we 
preliminarily determine that the respondent has met the requirements to 
qualify as a new shipper during the POR. Therefore, for purposes of 
these preliminary results of the review, we are treating Eastwing's 
sale of subject merchandise to the United States as an appropriate 
transaction for this new shipper review. See Memorandum from Matthew 
Renkey, Senior Analyst, Office 9, through Alex Villanueva, Program 
Manager, Office 9, to James C. Doyle, Office Director, Office 9: Bona 
Fide Nature of the Sale in the Antidumping Duty New Shipper Review of 
Certain Preserved Mushrooms: Guangxi Eastwing Trading Co., Ltd., dated 
June 27, 2006 (``Eastwing Prelim Bona Fide Memo''). As stated in the 
Eastwing Prelim Bona Fide Memo, we will continue to examine certain 
aspects of Eastwing's entry of subject merchandise.

Separate Rates

    The Department has treated the PRC as a non-market economy 
(``NME'') country in all previous antidumping cases. See, e.g., Final 
Determination of Sales at Less Than Fair Value and Final Partial 
Affirmative Determination of Critical Circumstances: Diamond Sawblades 
and Parts Thereof from the People's Republic of China, 71 FR 29303 (May 
22, 2006).In accordance with section 771(18)(C)(i) of the Act, any 
determination that a foreign country is an NME country shall remain in 
effect until revoked by the administering authority. There is no 
evidence on the record suggesting that this determination should be 
changed. Therefore, we treated the PRC as an NME country for purposes 
of this review and calculated NV by valuing the factors of production 
(``FOP'') in a surrogate country. It is the Department's policy to 
assign all exporters of the merchandise subject to review, located in 
NME countries, a single antidumping duty rate unless an exporter can 
demonstrate an absence of governmental control, both in law (de jure) 
and in fact (de facto), with respect to its export activities. To 
establish whether an exporter is sufficiently independent of 
governmental control to be entitled to a separate rate, the Department 
analyzes the exporter using the criteria established in the Final 
Determination of Sales at Less Than Fair Value: Sparklers from the 
People's Republic of China, 56 FR 20588 (May 6, 1991) (``Sparklers''), 
as adopted and amplified in the Final Determination of Sales at Less 
Than Fair Value: Silicon Carbide from the People's Republic of China, 
59 FR 22585, 22586-87 (May 2, 1994) (``Silicon Carbide''). Under the 
separate rates criteria established in these cases, the Department 
assigns separate rates to NME exporters only if they can demonstrate 
the absence of both de jure and de facto governmental control over 
their export activities.

Absence of De Jure Control

    Evidence supporting, though not requiring, a finding of de jure 
absence of government control over export activities includes: (1) an 
absence of restrictive stipulations associated with the individual 
exporter's business and export licenses; (2) any legislative enactments 
decentralizing control of companies; and (3) any other formal measures 
by the government decentralizing control of companies. See Sparklers at 
20589.
    In the instant review, Eastwing submitted a complete response to 
the separate rates section of the Department's questionnaire. The 
evidence submitted in the instant review by Eastwing includes 
government laws and regulations on corporate ownership and control, 
business licenses, and narrative information regarding the company's 
operations and selection of management. See Eastwing Verification 
Report at Exhibits 2, 3, and 6. The evidence provided by Eastwing 
supports a finding of a de jure absence of governmental control over 
their export activities because: (1) there are no controls on exports 
of subject merchandise, such as quotas applied to, or licenses required 
for, exports of the subject merchandise to the United States; and (2) 
the subject merchandise does not appear on any government list 
regarding export provisions or export licensing.

Absence of De Facto Control

    The absence of de facto governmental control over exports is based 
on whether the respondent: (1) sets its own export prices independent 
of the government and other exporters; (2) retains the proceeds from 
its export sales and makes independent decisions regarding the 
disposition of profits or financing of losses; (3) has the authority to 
negotiate and sign contracts and other agreements; and (4) has autonomy 
from the government regarding the selection of management. See Silicon 
Carbide at 22587; Sparklers at 20589; see also Notice of Final 
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from 
the People's Republic of

[[Page 38619]]

China, 60 FR 22544, 22545 (May 8, 1995).
    In its questionnaire responses, Eastwing submitted evidence 
demonstrating an absence of de facto governmental control over its 
export activities. Specifically, this evidence indicates that: (1) the 
company sets its own export prices independent of the government and 
without the approval of a government authority; (2) the company retains 
the proceeds from its sales and makes independent decisions regarding 
the disposition of profits or financing of losses; (3) the company has 
a general manager with the authority to negotiate and bind the company 
in an agreement; (4) the general manager is selected by the board of 
directors, and the general manager appoints the deputy managers and the 
manager of each department; and (5) there is no restriction on the 
company's use of export revenues. Therefore, we have preliminarily 
found that Eastwing has established prima facie that it qualifies for a 
separate rate under the criteria established by Silicon Carbide and 
Sparklers.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base normal value (``NV''), 
in most circumstances, on the NME producer's factors of production, 
valued in a surrogate market-economy country or countries considered to 
be appropriate by the Department. In accordance with section 773(c)(4) 
of the Act, in valuing the factors of production, the Department shall 
utilize, to the extent possible, the prices or costs of factors of 
production in one or more market-economy countries that are at a level 
of economic development comparable to that of the NME country and are 
significant producers of comparable merchandise. The sources of the 
surrogate values we have used in this investigation are discussed under 
the ``Normal Value'' section below.
    The Department determined that India, Sri Lanka, Indonesia, the 
Philippines, and Egypt are countries comparable to the PRC in terms of 
economic development. See Memorandum from Ron Lorentzen, Director, 
Office of Policy, to Alex Villanueva, Program Manager, Office 9; New 
Shipper Review of Certain Preserved Mushrooms from the People's 
Republic of China (PRC): Request for a List of Surrogate Countries, 
dated December 16, 2005. Because of India's and Indonesia's relative 
levels of production, and consistent with worldwide characteristics of 
frozen shrimp production, these countries were selected as significant 
producers of comparable merchandise. See Surrogate Country Memo at 4. 
The Department selects an appropriate surrogate country based on the 
availability and reliability of data from the countries. See Department 
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country 
Selection Process (``Policy Bulletin''), dated March 1, 2004. In this 
case, we have found that India is a significant producer of comparable 
merchandise, is at a similar level of economic development pursuant to 
section 773(c)(4) of the Act, and has publicly available and reliable 
data. See Surrogate Country Memo.

U.S. Price

    In accordance with section 772(a) of the Act, we calculated the 
export price (``EP'') for sales to the United States for Eastwing 
because the first sale to an unaffiliated party was made before the 
date of importation and the use of constructed EP (``CEP'') was not 
otherwise warranted. We calculated EP based on the price to 
unaffiliated purchasers in the United States. In accordance with 
section 772(c) of the Act, as appropriate, we deducted from the 
starting price to unaffiliated purchasers foreign inland freight and 
brokerage and handling. For Eastwing, each of these services was either 
provided by an NME vendor or paid for using an NME currency. Thus, we 
based the deduction of these movement charges on surrogate values. See 
Memorandum from Matthew Renkey, Senior Analyst, through Alex 
Villanueva, Program Manager, Office 9, to the File; New Shipper Review 
of Certain Preserved Mushrooms from the People's Republic of China: 
Surrogate Values for the Preliminary Results, dated June 27, 2006 
(``Surrogate Values Memo'') for details regarding the surrogate values 
for movement expenses.

Normal Value

    In accordance with section 773(c) of the Act, we calculated NV 
based on factors of production (``FOP'') reported by the Respondents 
for the POR. To calculate NV, we valued the reported FOP by multiplying 
the per-unit factor quantities by publicly available Indian surrogate 
values. In selecting surrogate values, we considered the quality, 
specificity, and contemporaneity of the available values. As 
appropriate, we adjusted the value of material inputs to account for 
delivery costs. Where appropriate, we increased Indian surrogate values 
by surrogate inland freight costs. We calculated these inland freight 
costs using the shorter of the reported distances from the PRC port to 
the PRC factory, or from the domestic supplier to the factory. This 
adjustment is in accordance with the United States Court of Appeals for 
the Federal Circuit's (``CAFC'') decision in Sigma Corp. v. United 
States, 117 F. 3d 1401, 1407-1408 (Fed.Cir. 1997). For those values not 
contemporaneous with the POR, we adjusted for inflation or deflation 
using data published in the International Monetary Fund's International 
Financial Statistics. Imports from Korea, Thailand, and Indonesia were 
excluded from the surrogate country import data due to generally 
available export subsidies. See China Nat'l Mach. Import & Export Corp. 
v. United States, CIT 01-1114, 293 F. Supp. 2d 1334 (CIT 2003), aff'd 
104 Fed. Appx. 183 (Fed. Cir. 2004) and Certain Cut-to-Length Carbon 
Steel Plate from Romania: Notice of Final Results and Final Partial 
Rescission of Antidumping Duty Administrative Review, 70 FR 12651 
(March 15, 2005) and accompanying Issues and Decision Memorandum at 
Comment 4. Furthermore, we disregarded prices from NME countries. 
Finally, imports that were labeled as originating from an 
``unspecified'' country were excluded from the average value because 
the Department could not be certain that they were not from either an 
NME country or a country with general export subsidies. Finally, we 
converted the surrogate values to U.S. dollars as appropriate, using 
the official exchange rate recorded on the dates of sale of subject 
merchandise in this case, obtained from the Import Administration's 
website at http://www.ia.ita.doc.gov/exchange/index.html. For further 
detail, see the Surrogate Values Memo.
    Preliminary Results of Review
    We preliminarily determine that the following margin exists during 
the period February 1, 2005, through August 15, 2005:

                Certain Preserved Mushrooms from the PRC
------------------------------------------------------------------------
                                                       Weighted-Average
                Exporter/Manufacturer                  Margin (Percent)
------------------------------------------------------------------------
Guangxi Eastwing Trading Co., Ltd./Raoping CXF                    104.32
 Foods, Inc.........................................
------------------------------------------------------------------------

Public Comment

    The Department will disclose to parties to this proceeding the 
calculations performed in reaching the preliminary results within ten 
days of the date of announcement of these

[[Page 38620]]

preliminary results. An interested party may request a hearing within 
30 days of publication of these preliminary results. See 19 CFR 
351.310(c). Interested parties may submit written comments (case 
briefs) within 30 days of publication of the preliminary results and 
rebuttal comments (rebuttal briefs), which must be limited to issues 
raised in the case briefs, within five days after the time limit for 
filing case briefs. See 19 CFR 351.309(c)(1)(ii) and 19 CFR 351.309(d). 
Parties who submit arguments are requested to submit with the argument: 
(1) a statement of the issue; (2) a brief summary of the argument; and 
(3) a table of authorities. Further, the Department requests that 
parties submitting written comments provide the Department with a 
diskette containing the public version of those comments. Unless the 
deadline is extended pursuant to section 751(a)(3)(A) of the Act, the 
Department will issue the final results of this new shipper review, 
including the results of our analysis of the issues raised by the 
parties in their comments, within 120 days of publication of these 
preliminary results. The assessment of antidumping duties on entries of 
merchandise covered by this review and future deposits of estimated 
duties shall be based on the final results of this review.

Assessment Rates

    Upon issuing the final results of the review, the Department shall 
determine, and CBP shall assess and liquidate, antidumping duties on 
all appropriate entries. The Department will issue appropriate 
appraisement instructions for the companies subject to this review 
directly to CBP within 15 days of publication of the final results of 
this review. Pursuant to 19 CFR 351.212(b)(1), we will calculate 
importer-specific ad valorem duty assessment rates based on the ratio 
of the total amount of the dumping margins calculated for the examined 
sales to the total entered value of those same sales. We will instruct 
CBP 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.

Cash Deposit Requirements

    Upon completion of this review, we will require cash deposits at 
the rate established in the final results as further described below.
    Bonding will no longer be permitted to fulfill security 
requirements for shipments of certain preserved mushrooms from the PRC 
produced by CXF and exported by Eastwing that are entered, or withdrawn 
from warehouse, for consumption on or after the publication date of the 
final results of this new shipper review. See 19 CFR 351.214(e). The 
following cash deposit requirements will be effective upon publication 
of the final results of this new shipper review for all shipments of 
subject merchandise from Eastwing entered, or withdrawn from warehouse, 
for consumption on or after the publication date: (1) for subject 
merchandise manufactured by CXF and exported by Eastwing, the cash 
deposit rate will be the rate established in the final results of this 
review, except that no cash deposit will be required if the cash 
deposit rate calculated in the final results is zero or de minimis; and 
(2) for subject merchandise exported by Eastwing but not manufactured 
by CXF, the cash deposit rate will continue to be the PRC-wide rate 
(i.e., 198.63 percent); and (3) for subject merchandise produced by CXF 
but not exported by Eastwing, the cash deposit rate will be the rate 
applicable to the exporter. These requirements, when imposed, shall 
remain in effect until publication of the final results of the next 
administrative review.
    Notification to Importers
    This notice serves as a preliminary 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 double antidumping duties.
    This new shipper review and notice are in accordance with sections 
751(a)(1), 751(a)(2)(B), and 777(i) of the Act and 19 CFR 
351.214(h)(i).

    Dated: June 27, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-10667 Filed 7-6-06; 8:45 am]
BILLING CODE 3510-DS-S