[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Notices]
[Pages 8308-8310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4199]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-851]
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
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: February 19, 1999.
FOR FURTHER INFORMATION CONTACT: David J. Goldberger or Kate Johnson,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202) 482-4136 or (202) 482-4929,
respectively.
The Applicable Statute
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended (``the Act''), are references to the provisions
effective January 1, 1995, the effective date of the amendments made to
the Act by the Uruguay Round Agreements Act (``URAA''). In addition,
unless otherwise indicated, all citations to the Department of Commerce
(``Department'') regulations are to the regulations at 19 CFR Part 351
(1998).
Amendment to the Final Determination
On December 18, 1998, the Department made its final determination
that certain preserved mushrooms from the People's Republic of China
(PRC) is being, or is likely to be, sold in the United States at less
than fair value. See Notice of Final Determination of Sales at Less
Than Fair Value: Certain Preserved Mushrooms from the People's Republic
of China, 63 FR 72255, December 31, 1998) (``Final Determination''). We
disclosed our calculations for the final determination to all
interested parties on December 21 and 22, 1998.
On January 8, 1999, we received a submission from the respondent
exporters in the investigation, China Processed Food Import & Export
Company (``China Processed'') and its affiliate Xiamen Jiahua Import &
Export Trading Company, Ltd. (``Xiamen Jiahua''), Shenzhen Cofry
Cereals, Oils, & Foodstuffs Company, Ltd. (``Shenzhen Cofry''), and Tak
Fat Trading Corporation Co. (``Tak Fat''), alleging ministerial errors
pertaining to the margin calculations in the Department's final
determination. On the same date, we received a submission from the
[[Page 8309]]
petitioners 1 alleging ministerial errors pertaining to
Shenzhen Cofry's margin calculation. On January 13, 1999, the
petitioners submitted comments on the respondents' allegations.
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\1\ L.K. Bowman, Inc., Modern Mushroom Farms, Inc., Monterey
Mushrooms, Inc., Mount Laurel Canning Corp., Mushroom Canning
Company, Southwood Farms, Sunny Dell Foods, Inc., and United Canning
Corp.
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After analyzing the submissions, we have determined, in accordance
with 19 CFR 351.224, that ministerial errors were made in the margin
calculations for each of the responding exporters. Specifically:
We inadvertently failed to exclude diesel fuel expenses
from the factory overhead expenses used to calculate the surrogate
value percentage for factory overhead.
We inadvertently failed to follow our stated methodology
to calculate the surrogate value for tin cans of certain sizes.
We inadvertently failed to follow our stated methodology
to calculate a portion of the fresh mushroom input freight value for
one of China Processed's suppliers.
We inadvertently applied the wrong consumption factor for
packing tape used to seal some of the packing cartons shipped by one of
Xiamen Jiahua's suppliers.
We inadvertently applied the surrogate value for tin cans
to the weight, rather than the number, of cans consumed by one of
Shenzhen Cofry's suppliers.
We inadvertently applied the surrogate value for can
labels to the weight, rather than the number, of labels consumed by
both of Shenzhen Cofry's suppliers.
For a detailed discussion of the ministerial errors allegations and
the Department's analysis, see Memorandum to Louis Apple from the Team,
dated January 22, 1999.
Therefore, in accordance with 19 CFR 351.224(e), we are amending
the final determination of the antidumping duty investigation of
certain preserved mushrooms from the PRC. The revised weighted-average
dumping margins are in the ``Antidumping Order'' section below.
Scope of Order
The products covered by this antidumping duty 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 the investigation 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 investigation 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 investigation is classifiable under
subheadings 2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043,
2003.10.0047, 2003.10.0053, and 0711.90.4000 of the Harmonized Tariff
Schedule of the United States (``HTS''). Although the HTS subheadings
are provided for convenience and Customs purposes, the Department's
written description of the merchandise under the order is dispositive.
Antidumping Duty Order
On February 12, 1999, in accordance with section 735(d) of the Act,
the U.S. International Trade Commission (ITC) notified the Department
that a U.S. industry is materially injured by reason of imports of
certain preserved mushrooms from the PRC, pursuant to section
735(b)(1)(A) of the Act.
In addition, three ITC Commissioners found that critical
circumstances exist with regard to such products, and three
Commissioners found that critical circumstances do not exist with
regard to such imports from the PRC. Section 771(11) of the Act
provides that if the Commissioners voting on a determination ``are
evenly divided as to whether the determination should be affirmative or
negative, the Commission shall be deemed to have made an affirmative
determination.'' We consider that the tie-vote provision in section
771(11) applies to critical circumstances determinations.
We note that critical circumstances decisions are referred to as
both ``determinations'' and ``findings'' in the statute. Moreover,
while the legislative history will sometimes refer to the Commission's
critical circumstances ``findings'' (see, e.g., H.R. Rep. No. 96-317,
at 69 (1979)), these decisions are more often identified as
``determinations.'' See, e.g., S. Rep. No. 96-249, at 74 (1979); H.R.
Rep. No. 103-826, at 50 (1994). Since the terms ``findings'' and
``determinations'' are used interchangeably in the statute and
legislative history, the use of one or the other does not preclude the
application of section 771(11) to the Commission's consideration of the
critical circumstances issue.
Congress promulgated the critical circumstances provision in order
``to provide prompt relief to domestic industries suffering from large
volumes of, or a surge over a short period of, imports and to deter
exporters whose merchandise is subject to an investigation from
circumventing the intent of the law by increasing their exports to the
United States during the period between initiation of an investigation
and a preliminary determination by the [Department].'' H.R. Rep. 96-
317, at 63 (1979). In amending the critical circumstances provisions in
1988, Congress developed ``an improved critical circumstances procedure
[that] will significantly strengthen antidumping and countervailing
duty procedures by revitalizing a provision that has up to now been
ineffective.'' H.R. Rep. No. 100-576, at 611 (1988). Considering this
legislative history, we conclude that Congress did not intend to limit
the availability of retroactive relief in cases such as this one to
only those instances where two-thirds of the Commission votes to grant
such relief. Therefore, we consider the Commission to have made an
affirmative critical circumstances determination. The Department's
finding in this regard is consistent with the Department's treatment of
this issue in Notice of Antidumping Order: Coumarin from the People's
Republic of China, 60 FR 7751 (February 9, 1995).
Therefore, in accordance with section 736(a)(1) of the Act, the
Department will direct the United States Customs Service to assess,
upon further advice by the Department, antidumping duties equal to the
amount by which the normal value of the merchandise exceeds the export
price or constructed export price of the merchandise for all relevant
entries of certain preserved mushrooms from the PRC. These antidumping
duties will be assessed on all unliquidated entries of imports of the
subject merchandise that are entered, or withdrawn from warehouse, for
consumption on or after August 5, 1998,
[[Page 8310]]
the date of publication of the preliminary determination in the Federal
Register, except for subject merchandise exported by Tak Fat or other
companies not specifically named below. For merchandise exported by Tak
Fat or by other companies not specifically named below, we are
directing the Customs Service to assess antidumping duties on all
unliquidated entries of the subject merchandise that are entered, or
withdrawn from warehouse, for consumption on or after May 7, 1998, the
date 90 days prior to the date of publication of the preliminary
determination in the Federal Register, in accordance with the critical
circumstances finding in the final determination.
On or after the date of publication of this notice in the Federal
Register, U.S. Customs officers must require, at the same time as
importers would normally deposit estimated duties, the cash deposits
listed below for the subject merchandise. The ``PRC-wide Rate'' applies
to all exporters of certain preserved mushrooms not specifically listed
below.
The revised final weighted-average margins are as follows:
------------------------------------------------------------------------
Original final Revised final
Exporter/manufacturer margin margin
percentage percentage
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China Processed Food I&E Co./Xiamen 154.71 121.47
Jiahua I&E Trading Company, Ltd........
Tak Fat Trading Co...................... 178.59 162.47
Shenzhen Cofry Cereals, Oils, & 126.16 151.15
Foodstuffs Co., Ltd....................
Gerber (Yunnan) Food Co................. 158.79 142.11
Jiangsu Cereals, Oils & Foodstuffs Group 158.79 142.11
Import & Export Corporation............
Fujian Provincial Cereals, Oils & 158.79 142.11
Foodstuffs I&E Corp....................
Putian Cannery Fujian Province.......... 158.79 142.11
Xiamen Gulong I&E Co., Ltd.............. 158.79 142.11
General Canned Foods Factory of 158.79 142.11
Zhangzhou..............................
Zhejiang Cereals, Oils & Foodstuffs I&E 158.79 142.11
Corp...................................
Shanghai Foodstuffs I&E Corp............ 158.79 142.11
Canned Goods Co. of Raoping............. 158.79 142.11
PRC-wide Rate........................... 198.63 198.63
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This notice constitutes the antidumping duty order with respect to
certain preserved mushrooms from the PRC, pursuant to section 736(a) of
the Act. Interested parties may contact the Central Records Unit, Room
B-099 of the Main Commerce Building, for copies of an updated list of
antidumping duty orders currently in effect.
This order is published in accordance with section 736(a) of the
Act and 19 CFR 351.211.
Dated: February 16, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-4199 Filed 2-18-99; 8:45 am]
BILLING CODE 3510-DS-P
