2011-6996. 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.

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 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]

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: [phone] or [phone], 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]

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.

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

Producer-exporter	Weighted-average margin (percent)
Zhangzhou Tongfa Foods Industry Co., Ltd.	0.00

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

Footnotes

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.

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.

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).