[Federal Register Volume 76, Number 57 (Thursday, March 24, 2011)]
[Notices]
[Pages 16604-16606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-6996]
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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 Final Rescission in Part, of Antidumping Duty New
Shipper Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: March 24, 2011.
SUMMARY: On October 29, 2010, the Department of Commerce (the
Department) published in the Federal Register the preliminary results
of the new shipper reviews (NSRs) of the antidumping duty order on
certain preserved mushrooms from the People's Republic of China (PRC)
for Shandong Fengyu Edible Fungus Corporation, Ltd. (Fengyu) \1\ and
Zhangzhou Tongfa Foods Industry Co., Ltd. (Tongfa). See Certain
Preserved Mushrooms from the People's Republic of China: Preliminary
Results of Antidumping Duty New Shipper Reviews, 75 FR 66729 (October
29, 2010) (Preliminary Results). We gave interested parties an
opportunity to comment on the Preliminary Results, and received no
comments.
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\1\ On March 31, 2010, we initiated this NSR on ``Shandong
Fengyu Edible Fungus Corporation Ltd.'' See Certain Preserved
Mushrooms from the People's Republic of China: Notice of Initiation
of Antidumping Duty New Shipper Reviews, 75 FR 16075 (March 31,
2010) (Initiation Notice). However, in the Preliminary Results, the
Department inadvertently referred to Fengyu as, ``Shandong Fengyu
Edible Fungus Co., Ltd.'' For the purposes of this NSR, the
company's name, as reported to the Department, should be as it
appears in the Initiation Notice and these final results.
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On February 9, 2011, we issued a memorandum announcing our intent
to rescind the NSR with respect to Fengyu because we were unable to
make an affirmative determination that there was a consumption entry
produced by Fengyu during the period of review (POR), which was
February 1, 2009
[[Page 16605]]
through January 31, 2010. We gave interested parties an opportunity to
comment on our intent to rescind the NSR with respect to Fengyu, and
received comments from Fengyu on March 15, 2011.\2\
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\2\ Fengyu originally submitted comments on February 11, 2011,
but pursuant to 19 CFR 351.302(d) we returned the submission to
Fengyu because it contained new, unsolicited factual information
that, pursuant to 19 CFR 351.301(b)(2) we determined was untimely.
After removing the unsolicited information, Fengyu resubmitted its
comments on March 15, 2011.
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With respect to Tongfa, we made no changes to the Preliminary
Results, and in these final results we find that this company has not
made sales in the United States at below normal value and is eligible
for its own individual weighted-average dumping margin. However, with
respect to Fengyu, after reviewing the totality of the evidence on the
record, we continue to be unable to affirmatively determine the
existence of a consumption entry of subject merchandise during the POR.
Accordingly, we have determined that it is appropriate to rescind the
NSR with respect to Fengyu. For further information, see ``Issues and
Decision Memorandum for the Final Results in the Antidumping Duty New
Shipper Reviews of Certain Preserved Mushrooms from the People's
Republic of China,'' which is dated concurrently with this notice (I&D
Memorandum).
FOR FURTHER INFORMATION CONTACT: Fred Baker, Scott Hoefke, or Robert
James, AD/CVD Operations, Office 7, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW., Washington, DC 20230; telephone:
(202) 482-2924, (202) 482-4947 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION:
Background
We published the Preliminary Results for these NSRs on October 29,
2010. In the Preliminary Results, the Department invited interested
parties to submit case briefs within 30 days of publication of the
preliminary results and rebuttal briefs within five days after the due
date for filing case briefs. See Preliminary Results at 66734. No
interested party submitted a case brief or rebuttal brief.
On February 9, 2011, the Department put on the record a memorandum
providing notice to interested parties of the Department's intent to
rescind the NSR of Fengyu on the basis that the record did not
affirmatively demonstrate that subject merchandise produced and
exported by Fengyu entered the United States for consumption during the
POR. See Memorandum to the File from Scott Hoefke: Intent to Rescind
the New Shipper Review of Certain Preserved Mushrooms from the People's
Republic of China for Shandong Fengyu Edible Fungus Corporation Ltd.
dated February 9, 2011. On March 15, 2011, Fengyu submitted comments
regarding the Department's intent to rescind its review.
Analysis of Comments Received
All issues raised by parties are addressed in the I&D Memorandum. A
list of the issues which parties raised, and to which we respond in the
I&D Memorandum, is attached to this notice as an Appendix. The I&D
Memorandum is a public document and is on file in the Central Records
Unit (CRU), Main Commerce Building, Room 7046, and is accessible on the
Department's Web site at http://www.trade.gov/ia. The paper copy and
electronic version of the memorandum are identical in content.
Period of Review
The POR is February 1, 2009, through January 31, 2010.
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'' refers 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.\3\
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\3\ 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, the United States Court of
Appeals for the Federal Circuit upheld this decision. See Tak Fat v.
United States, 396 F.3d 1378 (Fed. Cir. 2005).
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Excluded from the scope of this order are the following: (1) All
other species of mushroom, including straw mushrooms; (2) all fresh and
chilled mushrooms, including ``refrigerated'' or ``quick blanched
mushrooms;'' (3) dried mushrooms; (4) frozen mushrooms; and (5)
``marinated,'' ``acidified,'' or ``pickled'' mushrooms, which are
prepared or preserved by means of vinegar or acetic acid, but may
contain oil or other additives.
The merchandise subject to this order is classifiable under
subheadings: 2003.10.0127, 2003.10.0131, 2003.10.0137, 2003.10.0143,
2003.10.0147, 2003.10.0153, and 0711.51.0000 of the Harmonized Tariff
Schedule of the United States (HTSUS). Although the HTSUS subheadings
are provided for convenience and Customs purposes, the written
description of the scope of this order is dispositive.
Separate Rates Determination
A designation of a country as a non-market economy (NME) remains in
effect until it is revoked by the Department. See section 771(18)(C) of
the Tariff Act of 1930, as amended (the Act). Accordingly, there is a
rebuttable presumption that all companies within the PRC are subject to
government control, and thus should be assessed a single antidumping
duty rate. As we fully explained in the Preliminary Results, it is the
Department's policy to assign all exporters of the merchandise subject
to review in NME countries a single rate unless an exporter can
affirmatively demonstrate an absence of government control, both in law
(de jure) and in fact (de facto), with respect to exports. See
Preliminary Results, 75 FR 66730-31. As we also fully explained in the
Preliminary Results, consistent with our practice the Department also
investigates whether the sale reported by a company requesting an NSR
is commercially reasonable and, therefore, bona fide. See id. at 66731.
In the Preliminary Results, the Department announced its
determination that Tongfa had demonstrated its eligibility for separate
rate status. We received no comments from interested parties regarding
this determination. In these final results of review, we continue to
find that the evidence placed on the record by Tongfa demonstrates the
absence of government control, both in law and in fact, with respect to
its shipment of the merchandise under review, and that Tongfa's single
sale was bona fide. Thus, we have made no changes to the Preliminary
Results with respect to Tongfa and continue to determine that this
company is eligible to receive a separate rate and its own individual
weighted-average dumping margin.
[[Page 16606]]
Rescission in-Part
Pursuant to 19 CFR 351.214(f)(2), the Department may rescind an
NSR, in whole or in part, if: (1) At the end of the normal period of
review, there has not been an entry and sale to an unaffiliated
customer in the United States of subject merchandise; and (2) an
expansion of the normal period of review to include an entry and sale
to an unaffiliated customer in the United States of subject merchandise
would be likely to prevent the completion of the NSR within the time
limits set forth by 19 CFR 351.214(i).
Based on the record evidence, we are unable to make an affirmative
determination that subject merchandise produced and exported by Fengyu
actually entered the United States for consumption during the POR.
Thus, in the absence of a reviewable entry, consistent with 19 CFR
351.214(f)(2)(i), we are rescinding this NSR with respect to Fengyu.
Because we are rescinding this NSR with respect to Fengyu, the
presumption that Fengyu is part of the PRC-wide entity will remain in
effect. Therefore, effective the date of publication of these final
results, entries of subject merchandise produced and exported by Fengyu
will be subject to the PRC-wide cash deposit rate of 198.63 percent.
See I&D Memorandum at Comment 1.
Final Results of the Review
The Department has determined that the following margin exists for
the period February 1, 2009, through January 31, 2010:
Certain Preserved Mushrooms From the PRC
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Weighted-average
Producer-exporter margin (percent)
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Zhangzhou Tongfa Foods Industry Co., Ltd............ 0.00
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Assessment Rates
Consistent with these final results, and pursuant to section
751(a)(2)(B) of the Act and 19 CFR 351.212(b)(1), the Department will
direct CBP to assess antidumping duties on all appropriate entries. The
Department will issue appropriate assessment instructions to CBP 15
days after the date of publication of the final results of this review.
Pursuant to 19 CFR 351.212(b)(1), we calculated 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 (or costumer) assessment rate calculated in the
final results of this review is above de minimis.
Cash Deposit Requirements
The following cash deposit requirements, when imposed, will be
effective upon publication of the final results of this NSR for all
shipments of subject merchandise exported by Tongfa and entered, or
withdrawn from warehouse, for consumption on or after the publication
date, as provided by section 751(a)(2)(C) of the Act: (1) For subject
merchandise produced and exported by Tongfa, the cash-deposit rate will
be that established in the final results of this review; (2) for
subject merchandise exported by Tongfa but not produced by Tongfa,
respectively, the cash deposit rate will continue to be the PRC-wide
rate (i.e., 198.63 percent); (3) for subject merchandise produced by
Tongfa, but exported by any other party, the cash deposit rate will be
the rate applicable to the exporter; and (4) for subject merchandise
produced and exported by Fengyu, the cash deposit rate continues to be
the PRC-wide rate (i.e., 198.63 percent). Since the cash deposit rate
calculated for Tongfa in the final results is zero or de minimis, a
zero cash deposit will be required for entries of subject merchandise
both produced and exported by Tongfa. These cash deposit requirements,
when imposed, shall remain in effect until further notice.
Notification to Importers
This notice 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 POR. 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.
Administrative Protective Order
This notice also serves as a reminder to parties subject to
administrative protective orders (APO) of their responsibility
concerning the return or destruction proprietary information disclosed
under APO in accordance with 19 CFR 351.305, which continues to govern
business proprietary information in this segment of the proceeding.
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.
This notice is published in accordance with sections 751(a)(2)(B)
and 777(i) of the Act and 19 CFR 351.214.
Dated: March 18, 2011.
Kim Glas,
Acting Deputy Assistant Secretary for Import Administration.
Appendix
Comment 1. Rescission of Review
[FR Doc. 2011-6996 Filed 3-23-11; 8:45 am]
BILLING CODE 3510-DS-P