[Federal Register: July 11, 2003 (Volume 68, Number 133)]
[Notices]
[Page 41304-41310]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy03-31]
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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 Partial Rescission of the New Shipper Review and
Final Results and Partial Rescission of the Third Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results and partial rescission of the new
shipper review and final results and partial
[[Page 41305]]
rescission of the third antidumping duty administrative review.
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SUMMARY: On March 6, 2003, the Department of Commerce published the
preliminary results and partial rescission of the new shipper review
and the third antidumping duty administrative review of the antidumping
duty order on certain preserved mushrooms from the People's Republic of
China. See Certain Preserved Mushrooms from the People's Republic of
China: Preliminary Results of New Shipper Review and Preliminary
Results and Partial Rescission of Third Antidumping Duty Administrative
Review, 68 FR 10694 (March 6, 2003) (Preliminary Results). The new
shipper review covers three exporters and the administrative review
covers four exporters (see ``Background'' section below for further
discussion). The period of review is February 1, 2001, through January
31, 2002.\1\ We gave interested parties an opportunity to comment on
our preliminary results.
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\1\ The POR for both the new shipper and administrative review
is the same.
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Based on the additional publicly available information used in
these final results and the comments received from the interested
parties, we have made changes in the margin calculations for certain
respondents in these reviews. The final weighted-average dumping
margins for the reviewed firms in these reviews are listed below in the
section entitled ``Final Results of Reviews.''
EFFECTIVE DATE: July 11, 2003.
FOR FURTHER INFORMATION CONTACT: Brian Smith or Davina Hashmi, Import
Administration, International Trade Administration, U.S. Department of
Commerce, Washington, DC 20230; telephone: (202) 482-1766 or (202) 482-
0984, respectively.
SUPPLEMENTARY INFORMATION:
Background
While the Department initiated an administrative review of 7
companies,\2\ based on a request by the petitioners \3\ and certain
exporters, this administrative review now covers only the following
four exporters: (1) Gerber; (2) Green Fresh; (3) Shantou Hongda; and
(4) Shenxian Dongxing (see ``Partial Rescission of Administrative
Review'' section below of this notice for further discussion).
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\2\ The petitioners' request for review included the following
companies: (1) China Processed Food Import & Export Company (``China
Processed''); (2) Shantou Hongda Industrial General Corporation
(``Shantou Hongda''); (3) Shenxian Dongxing Foods Co., Ltd.
(``Shenxian Dongxing''); (4) Gerber Food Yunnan Co., Ltd.
(``Gerber''); (5) Green Fresh Foods (Zhangzhou) Co., Ltd. (``Green
Fresh''); (6) Raoping Xingyu Foods Factory Co., Ltd. (``Raoping
Xingyu''); (7) Compania Envasador Del Atlantico (``Compania
Envasador'').
\3\ The petitioners are the Coalition for Fair Preserved
Mushroom Trade which includes the American Mushroom Institute and
the following domestic companies: L.K. Bowman, Inc., Modern Mushroom
Farms, Inc., Monterey Mushrooms, Inc., Mount Laurel Canning Corp.,
Mushrooms Canning Company, Southwood Farms, Sunny Dell Foods, Inc.,
and United Canning Corp.
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On March 6, 2002, the Department published in the Federal Register
the preliminary results of the new shipper review and the third
antidumping duty administrative review of the antidumping duty order on
certain preserved mushrooms from the People's Republic of China
(``PRC'') (see Preliminary Results, 67 FR at 10128).
On March 7, 2003, after determining that the 2001-2002 financial
report submitted for one Indian producer contained in Gerber's February
5, 2003, submission was incomplete, we requested that Gerber provide
the complete financial report for that Indian producer in order to
further consider the data for the final results. In response to our
request, the petitioners provided this data on April 18, 2003, for the
Department's consideration in the final results.
On March 10, 2003, the petitioners placed information on the record
indicating that one of Guangxi Yulin's owners may have made shipments
of subject merchandise during the period of investigation (``POI'') \4\
and therefore may not be eligible for a new shipper review. On March
20, 2003, Guangxi Yulin submitted rebuttal comments. On April 15, 2003,
we placed on the record the results of our data query on this matter
(see April 15, 2003, Memorandum from Sophie Castro, Case Analyst to the
File, entitled ``Results of Data Queries Conducted in Response to
Allegations and Information Submitted in March of 2003 Regarding
Guangxi Yulin Oriental Food Co., Ltd.'').
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\4\ The POI covers the period of July 1, 1997 though December
31, 1997.
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On March 31, 2003, in accordance with 19 CFR 351.301(c)(3), we
received additional publicly available information from two
respondents, Gerber and Green Fresh.
On April 25, 2003, we placed on the record additional publicly
available information on truck freight rates for consideration in the
final results.
The petitioners and three respondents, Gerber, Guangxi Yulin and
Shenzhen Qunxingyuan Trading Co., Ltd. (``Shenzhen Qunxingyuan'')
submitted their case briefs on April 30, 2003. On May 7, 2003, the
petitioners and two respondents, Gerber and Guangxi Yulin, submitted
rebuttal briefs. The other respondents participating in these reviews
did not submit case or rebuttal briefs.
On May 7, 2003, we determined that the petitioner and Shenzhen
Qunxingyuan had submitted new factual information in their case briefs
in violation of the regulatory requirement provided in 19 CFR
351.301(c)(3)(ii), and requested these parties to remove this data and
resubmit their case briefs. On May 19, 2003, we determined that the
petitioner had also submitted new factual information in its rebuttal
brief and requested the petitioner to remove this data as well and
resubmit its rebuttal brief. Also, on May 19, 2003, the petitioner
requested a meeting with the Department to discuss the relationship
between Gerber and Green Fresh during the period of review (``POR'') as
discussed in its case brief. On May 22, 2003, Gerber and Green Fresh
requested a similar meeting. On June 11, and June 27, 2003, we held ex-
parte meetings with the petitioners' and respondents' counsels,
respectively, to discuss the relationship between Gerber and Green
Fresh during the POR and the new shipper claims made by Shenzhen
Qunxingyuan and Guangxi Yulin (see ex-parte memoranda to the file dated
June 12, and June 30, 2003).
On June 5, 2003, we placed on the record additional publicly
available price information on copper wire scrap, water, and the
components included in laterite, and additional public financial data
from an Indian producer submitted in this review for consideration in
the final results of this review. On June 19, 2003, Gerber and Green
Fresh submitted comments on the publicly available information we had
placed on the record on June 5, 2003.
No party requested a hearing, as specified under 19 CFR 351.310(c).
The Department has conducted these reviews in accordance with
section 751 of the Act.
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
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,
[[Page 41306]]
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 vinegar or acetic acid, but may
contain oil or other additives.\5\
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\5\ 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. \
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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 \6\ (``HTS''). Although the HTSUS
subheadings are provided for convenience and customs purposes, the
written description of the scope of this order is dispositive.
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\6\ Prior to January 1, 2002, the HTS subheadings were as
follows: 2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043,
2003.10.0047, 2003.10.0053, and 0711.90.4000.
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Partial Rescission of Administrative Review
We have rescinded this review with respect to China Processed,
Compania Envasador, and Raoping Xingyu pursuant to 19 CFR
351.213(d)(1), because the petitioners withdrew their request for
review and no other interested party requested a review of these
companies. See Certain Preserved Mushrooms from the People's Republic
of China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 67 FR 53914 (August 20, 2002).
Facts Available--Shenxian Dongxing
In the Preliminary Results, 67 FR at 10697, the Department
determined that the use of adverse facts available was warranted in
accordance with section 776(b) of the Tariff Act of 1930, as amended
(``the Act''), to calculate the dumping margin for Shenxian Dongxing.
Because Shenxian Dongxing failed to provide usable transaction-specific
sales quantities for purposes of calculating its weighted-average
dumping margin, we determined that Shenxian Dongxing did not cooperate
to the best of its ability. Since the preliminary results, nothing has
changed to reverse our preliminary decision regarding Shenxian Dongxing
and Shenxian Dongxing has filed no comments on the record addressing
the Department's calculation. Therefore, pursuant to section 776(b) of
the Act, we have continued to make an adverse inference with respect to
Shenxian Dongxing by assigning to its exports of the subject
merchandise a rate of 61.37 percent, which is the highest rate
calculated for any of its U.S. sales transactions based on the use of
additional publicly available information and the comments received
from the interested parties since the preliminary results (see
``Changes Since the Preliminary Results'' section below for further
discussion).
Facts Available--Gerber/Green Fresh
In the Preliminary Results, 67 FR at 10697, the Department
determined that the business relationship which existed between Gerber
and Green Fresh resulted in evasion of antidumping cash deposits during
the POR. (See February 28, 2003, memorandum from Office Director to the
Acting Deputy Assistant Secretary entitled ``Cash Deposit Rate for
Gerber Food (Yunnan) Co., Ltd. and Green Fresh Foods (Zhangzhou) Co.,
Ltd.'' (``Gerber-Green Fresh memo'') for further discussion).
Consequently, as adverse facts available, the Department preliminarily
assigned to each of these respondents for future cash deposit purposes
the higher of the rates calculated for each of them in this review.\7\
The preliminary calculated margins for Gerber and Green Fresh were 1.17
percent and 46.41 percent, respectively. However, as adverse facts
available for cash deposit purposes, we assigned both companies Green
Fresh's calculated margin of 46.41 percent. We invited comments on our
preliminary results.
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\7\ For assessment purposes, we preliminarily stated that we
intended to calculate importer-specific duty assessment rates based
on the data provided by these two companies, as adjusted, to reflect
verification findings.
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After considering the comments submitted by the parties on this
matter, we find that our preliminary decision with respect to Gerber
and Green Fresh did not sufficiently address the fact that both
companies withheld crucial information prior to verification and
actively colluded to circumvent the cash deposit rates in effect during
the POR. After a re-examination of the facts on the record of this
review, we find that the use of total adverse facts available is
warranted in this case with respect to determining Gerber's and Green
Fresh's cash deposit and assessment rates for the reasons stated below.
With respect to Gerber, we find that Gerber continually
misrepresented in its questionnaire responses the true nature of its
relationship with Green Fresh during the POR. In its questionnaire
responses, which were accompanied by a certification from Gerber
officials attesting to the validity and truthfulness of these
responses, Gerber claimed that Green Fresh acted as an agent on its
behalf by arranging for the shipment on some of its reported U.S. sales
of self-produced subject merchandise during the POR (see May 23, 2003,
Section A response at A-11). Moreover, Gerber indicated that Green
Fresh acted as its agent from September 2001 to May 2002 and Gerber
paid it a commission for each container of Gerber-produced merchandise
which Green Fresh shipped to the U.S. market on Gerber's behalf (see
September 11, 2002, submission at 6).
Based on this information, the Department was led to believe prior
to verification that Gerber's business with Green Fresh was at arms-
length, and constituted a bona fide business arrangement under which
Green Fresh did, in fact, operate as the exporter of the merchandise.
However, an examination of sales and export documentation at
verification revealed that Gerber in fact arranged shipment of all of
its sales of subject merchandise and paid Green Fresh a fee to use
Green Fresh's sales invoices for this purpose in order to take
advantage of Green Fresh's comparatively low cash deposit rate during
the POR (see February 12, 2003, Gerber verification report at 5-7 and
exhibits 4D through 4K)). Absent verification, the Department would
never have discovered that Gerber used Green Fresh's sales invoices in
order to benefit from Green Fresh's lower cash deposit rate.
Gerber's misrepresentations were highly material to the
Department's analysis and call into question the veracity of other
responses provided by Gerber. Despite Gerber's pre-verification claims
to the contrary, Green Fresh never acted as Gerber's agent for most of
the Gerber/Green Fresh reported transactions. Green Fresh had at most
negligible commercial involvement with the specific transactions
involving the export of Gerber's merchandise to the United States from
the PRC using its invoices. Although the nature of this relationship
came to light at verification, the Department deems it critical to the
resolution of this issue the
[[Page 41307]]
fact that Gerber certified as truthful false information it provided to
the Department, in numerous questionnaire responses.
Under these circumstances, section 776(a)(2) of the Act states that
the Department may use ``facts available'' if an interested party (A)
withholds information that has been requested by the Department, (C)
significantly impedes a proceeding under this title or (D) provides
such information but the information cannot be verified. All of these
provisions apply in this case. Because the Department relies on
original sales invoices to verify the accuracy of the sales listing,
the information Gerber mis-characterized and withheld was fundamental
and material to the Department's analysis. Gerber's actions now lead us
to question our verification findings which were predicated on the
reliability of Gerber's own information and records. Gerber's
consistent mis-characterization of the facts on the record impeded a
proper review of Gerber's transactions. This is particularly true,
given that the vast majority of Gerber's reported U.S. sales were made
using Green Fresh's sales invoices. Without the necessary information
pertaining to these transactions, the Department could not
realistically conduct an accurate review of Gerber. Clearly in this
case, Gerber did not act to the best of its ability by providing the
Department with incorrect and misleading mis-characterizations of its
agreement with Green Fresh and misusing Green Fresh's invoices to evade
the payment of cash deposits during the POR.
For these reasons, the Department has determined that it will apply
total adverse facts available to Gerber in this case. Thus, as adverse
facts available, in light of record evidence of material
misrepresentations by Gerber as noted above and the potential for
future misconduct, the assignment of a cash deposit and assessment rate
equal to the PRC-wide rate of 198.63 percent is appropriate. The
application of this cash deposit rate reflects the Department's best
estimate as to what the company's ultimate assessed duty liability
would be in the next stage of the proceeding, given the uncertainty
created by the misconduct that has characterized the parties' behavior
to date. The Department considers the assignment of this rate to Gerber
sufficient to encourage it to cooperate with the Department in future
reviews, and to ensure that Gerber cannot undermine the efficacy of the
antidumping duty law by posting insufficient and improper deposits.
With respect to Green Fresh, its misrepresentations on the record
significantly impeded this proceeding as well. Like Gerber, Green Fresh
also stated in its questionnaire responses that it acted as an agent
for sales made and produced by Gerber, whereby it received a commission
for exporting that merchandise on Gerber's behalf to the U.S. market
during the POR (see May 23, 2002, submission at 11). In describing its
role as Gerber's agent, Green Fresh indicated that it provided Gerber
with specific export documents (i.e., an invoice, PRC Customs and
quarantine inspection form, packing list, VAT refund form, and PRC
Customs declaration form) for only a portion of Gerber's sales
transactions during the POR (see December 23, 2003, submissions at 1
and 2). Moreover, Green Fresh indicated that it had the data for these
affected sales transactions and separately reported them in its
supplemental response (see December 23, 2002, submission at 3). With
respect to these affected sales transactions which it claimed it acted
as Gerber's shipping agent, Green Fresh did not reveal to the
Department until verification that it merely provided Gerber with blank
sales invoices for purposes of enabling Gerber to ship its merchandise
to the U.S. market during the POR at a lower cash deposit rate.
Furthermore, although Green Fresh claimed that it actually arranged for
the shipment of Gerber-produced merchandise included in these affected
sales transactions (which were reported by both companies in their
respective Section C sales listings), Green Fresh was unable to provide
complete documentation for all of the affected sales transactions to
support its claim that it served as a bona fide shipping agent on
behalf of Gerber with respect to these sales (see February 12, 2003,
Green Fresh verification report at 6-7 and exhibit 6P). Because these
affected sales transactions were documented with invoices issued by
Green Fresh and not by Gerber but could not be tied to records prepared
by Green Fresh in the ordinary course of business, we were unable to
verify the extent of Green Fresh's involvement with respect to these
sales or to corroborate Green Fresh's statements. Therefore, given the
fact that the sales in question were made using Green Fresh's invoices
and that Green Fresh was unable to provide its own supporting
documentation for all but one of these sales transactions, we question
the reliability of Green Fresh's reported sales data, its sales
documentation, and the additional data it provided at verification.
Furthermore, the willingness of Green Fresh to assist another
company to evade the payment of legally required cash deposits, as well
as its consistent mis-characterization of the facts on the record
(despite its representatives' certification of the facts contained in
multiple submissions to the Department as truthful when they were not),
leads us again to question the validity of the books and records
examined by the Department at verification. Thus, consistent with our
analysis for Gerber, we do not believe that Green Fresh's reported
information can be relied upon by the Department in calculating an
antidumping duty margin and cash deposit/assessment rates.
Consequently, pursuant to sections 776(a)(2)(A), (C) and (D) of the
Act, the Department is applying total facts available to Green Fresh.
Furthermore, pursuant to section 776(b) of the Act, an adverse
inference is warranted because Green Fresh's sale of invoices for
purposes of aiding Gerber to evade cash deposits, as well as its mis-
characterization of the facts in this case, clearly demonstrate that
Green Fresh did not act to the best of its ability during this
administrative review.
Thus, as adverse facts available, in light of record evidence of
material misrepresentations by Green Fresh as noted above and the
potential for future misconduct, the assignment of a cash deposit and
assessment rate equal to the PRC-wide rate of 198.63 percent is
appropriate. (See Issues and Decision Memorandum (``Decision Memo'')
from Jeffrey May, Deputy Assistant Secretary for Import Administration,
to Joseph A. Spetrini, Acting Assistant Secretary for Import
Administration at Comment 1 for further discussion).
Corroboration of Facts Available
Section 776(c) of the Act provides that where the Department
selects from among the facts otherwise available and relies on
``secondary information,'' the Department shall, to the extent
practicable, corroborate that information from independent sources
reasonably at the Department's disposal. The Statement of
Administrative Action, H.R. Doc. 103-316 (``SAA''), states that
``corroborate'' means to determine that the information used has
probative value. See SAA at 870. To corroborate secondary information,
the Department will, to the extent practicable, examine the reliability
and relevance of the information to be used.
In this segment of the proceeding, in accordance with Department
practice, as adverse facts available, we have assigned to exports of
the subject merchandise by Gerber and Green Fresh the PRC-wide rate of
198.63 percent, a
[[Page 41308]]
rate that was calculated based on information contained in the
petition. When using a previously calculated margin as facts available,
for purposes of corroboration the Department will consider, in the
context of the current review, whether that margin is both reliable and
relevant. With respect to the relevancy aspect of corroboration, the
Department stated in Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, from Japan, and Tapered Roller Bearings, Four
Inches or Less in Outside Diameter, and Components Thereof, from Japan;
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996) (``TRBs''), that it will ``consider information
reasonably at its disposal as to whether there are circumstances that
would render a margin irrelevant. Where circumstances indicate that the
selected margin is not appropriate as adverse facts available, the
Department will disregard the margin and determine an appropriate
margin.'' See also Fresh Cut Flowers from Mexico; Preliminary Results
of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February
22, 1996) (disregarding the highest margin in the case as best
information available because the margin was based on another company's
uncharacteristic business expense resulting in an extremely high
margin).
We corroborated the petition information, and found that we had not
received any information that warranted revisiting the issue. See
Notice of Preliminary Determination of Sales at Less-Than-Fair-Value:
Certain Preserved Mushrooms from the People's Republic of China, 63 FR
41794, 417988 (August 5, 1998). Similarly, no information has been
presented in the current review that calls into question the
reliability or the relevance of the information contained in the
petition. Therefore, we have applied, as adverse facts available, the
PRC-wide rate from prior administrative reviews of this order and have
satisfied the corroboration requirements under section 776 of the Act.
See Persulfates from the People's Republic of China: Preliminary
Results of Antidumping Duty Administrative Review, 66 FR 18439, 18441
(April 9, 2001) (employing a petition rate used as adverse facts
available in a previous segment as the adverse facts available in the
current review). We have determined that this rate has probative value
and, therefore, is an appropriate rate to be applied in this review to
exports of subject merchandise by Gerber and Green Fresh as facts
otherwise available.
Partial Rescission of New Shipper Review
A. Zhangzhou Jingxiang
We have rescinded this new shipper review with respect to Zhangzhou
Jingxiang because it failed to provide us with the necessary
documentation for determining which entity or entities own it and
because it was unable to explain whether or not its owner was
affiliated with any PRC exporters or producers of the subject
merchandise (see Preliminary Results, 67 FR at 10696).
B. Shenzhen Qunxingyuan
In the preliminary results, we determined that the sole U.S. sale
of subject merchandise made by Shenzhen Qunxingyuan during the POR was
not bona fide primarily because it was made at an aberrationally high
price and an unreasonably low quantity relative to other commercial
transactions involving comparable merchandise during the POR. In
addition, Shenzhen Qunxingyuan did not have any other business activity
or income beyond this sale during the POR or after the POR (at least
until the date of verification). We also noted other questionable
factors with respect to Shenzhen Qunxingyuan's customer. Based on the
totality of the circumstances, we found that the quantity and value
reported by Shenzhen Qunxingyuan did not provide a reasonable or
reliable basis for the Department to calculate a dumping margin and we
rescinded the new shipper review with respect to Shenzhen Qunxingyuan.
See Memorandum from Louis Apple, Office Director, to Susan Kuhbach,
Acting Deputy Assistant Secretary for Import Administration, Fourth New
Shipper Review of Certain Preserved Mushrooms from the People's
Republic of China: Whether the Sale Made by Shenzhen Qunxingyuan
Trading Co., Ltd. Is Bona Fide (February 28, 2003) (``Preliminary Price
and Quantity Analysis Memorandum'' ).
We are also rescinding the new shipper review with respect to
Shenzhen Qunxingyuan because we find that it did not have a bona fide
U.S. sale during the POR, as required by 19 CFR 351.214(b)(2)(iv)(c),
based on the totality of the facts on the record. In determining
whether a sale was bona fide, the Department normally considers factors
such as, inter alia,: (1) The timing of the sale, (2) the sale price
and quantity, (3) the expenses arising from the sales transaction, (4)
whether the sale was sold to the customer at a loss, and (5) whether
the sales transaction between the exporter and importer was executed on
an arm's-length basis. See American Silicon Technologies v. United
States, 110 F. Supp. 2d 992, 996 (CIT 2000); see also Final Results of
First New Shipper Review and First Antidumping Duty Administrative
Review: Certain Preserved Mushrooms From the People's Republic of
China, 66 FR 31204 (June 11, 2001) and the accompanying issues and
decision memorandum. An examination of whether a sale is a bona fide
transaction may be extensive and thus, may include a variety of these
factors and others given the nature and circumstances of each company
and its corresponding sales practices. In Shenzhen Qunxingyuan's case,
we focused on the commercial income and viability of the company, the
profitability of the sale in question, and its sale price relative to
AUVs.
In this case, we find that the price of its single reported sale
was aberrationally high relative to the average unit value of all U.S.
imports of comparable canned mushroom imports during the POR. More
importantly, with respect to the commercial legitimacy of the one
reported U.S. sale, we continue to find that Shenzhen Qunxingyuan had
no other sales of any merchandise, subject or non-subject, during or
after the POR and therefore, had no commercial income during this
period. In addition, it appears that Shenzhen Qunxingyuan's reported
U.S. sale incurred a loss. Therefore, we determine that the record
evidence does not support a finding that this company is a bona fide
commercial entity. Consequently, for the reasons discussed above, the
Department finds that Shenzhen Qunxingyuan's sole U.S. sale during the
POR was not a bona fide commercial transaction and does not provide a
reasonable or reliable basis for the Department to calculate a dumping
margin. See Decision Memo at Comment 2 for additional discussion.
Non-Adverse Facts Available
For the final results of these reviews, we have determined it
appropriate to treat water as a factor of production separate from
factory overhead consistent with the Department's current practice (see
Fresh Garlic From the People's Republic of China: Final Results of
Antidumping New Shipper Review, 67 FR 72139 (December 4, 2002) and
accompanying Issues and Decision Memorandum at Comment 7 (``Garlic'')).
Shantou Hongda and Shenxian Dongxing reported water consumption
data which appeared to be erroneous
[[Page 41309]]
when compared to the amount reported by Guangxi Yulin and verified by
the Department. With respect to Shenxian Dongxing, because originally
we did not consider its reported water consumption factor to be
necessary for valuation purposes, we did not examine its water
consumption data at verification. In the case of Shantou Hongda, we
examined its water consumption at verification but it contained errors
which rendered this data unreliable (see exhibit 12 of the Department's
February 14, 2002, verification report for Shantou Hongda).
Because Shantou Hongda and Shenxian Dongxing provided the
Department with incomplete and/or unreliable information which could
not be verified, use of facts available is appropriate pursuant to
section 776(a)(2)(D) of the Act. We believe that Shantou Hongda and
Shenxian Dongxing were unaware at the time the Department requested
this information that it would be necessary to use the water
consumption data in its margin calculation because the Department had
not separately valued this input in any prior segment of this
proceeding. Thus, in order to account for water consumption usage by
each of these respondents in the final results, as non-adverse facts
available, we have used the water factor reported by Guangxi Yulin, the
only other respondent under review (for which we are calculating a
margin in the final results) which reported a correct and complete
water factor (as verified by the Department), and valued water for the
other respondents using Guangxi Yulin's reported water factor. See
Decision Memo at Comment 5.
Analysis of Comments Received
All issues raised in the case briefs are addressed in the Decision
Memo, which is hereby adopted by this notice. A list of the issues
raised, all of which are in the Decision Memo, is attached to this
notice as an Appendix. Parties can find a complete discussion of all
issues raised in the briefs and the corresponding recommendations in
this public memorandum which is on file in the Central Records Unit,
room B-099 of the main Department building. In addition, a complete
version of the Decision Memo can be accessed directly on the Web at
http://ia.ita.doc.gov. The paper copy and electronic version of the
Decision Memo are identical in content.
Changes Since the Preliminary Results
Based on the use of additional publicly available information and
the comments received from the interested parties, we have made changes
in the margin calculation for each respondent. For a discussion of
these changes, see the ``Margin Calculations'' section of the Decision
Memo.
For the final results, we calculated average surrogate percentages
for factory overhead, SG&A expenses, and profit using the 2001-2002
financial reports of Agro Dutch Foods Ltd. (``Agro Dutch'') and Flex
Foods Ltd. (``Flex Foods''). See Decision Memo at Comment 4.
We used freight rates published in the February 2002-June 2002
issues of Chemical Weekly and obtained distances between cities from
the following Web sites: http://www.infreight.com and http://www.sitaindia.com/Packages/CityDistance.php
We treated water as a separate factor of production. To value
water, we used 1995-1996 and 1996-1997 data from the Second Water
Utilities Data Book. Since this value was not contemporaneous with the
POR, we adjusted this value for inflation based on wholesale price
indices published in the International Monetary Fund's International
Financial Statistics. As discussed above, two respondents (i.e.,
Shantou Hongda and Shenxian Dongxing) did not provide the Department
with complete and/or reliable water consumption information which could
be verified. Therefore, as facts available, we have used the amount
reported by Guangxi Yulin, the only respondent under review which
reported a correct and complete water factor (as verified by the
Department), and applied it to the surrogate value for water for the
two respondents at issue. See ``Non-Adverse Facts Available'' section
above and Decision Memo at Comment 5.
To value tin can sets (i.e., the can with the lid) for the
respondents which produced their cans during the POR (i.e., Guangxi
Yulin and Shenxian Dongxing), we used 2001-2002 actual can-size-
specific price data submitted by Agro Dutch in the 3rd antidumping duty
administrative review of certain preserved mushrooms from India.
However, for the respondents which only purchased their cans during the
POR (i.e., Shantou Hongda), we continued to use 2000-2001 price data
from the May 21, 2001, public version response submitted by Agro Dutch
in the 2nd antidumping duty administrative review of certain preserved
mushrooms from India, and relied on the petitioners' methodology
contained in its September 6, 2002, publicly available information
submission for purposes of deriving per-unit, can-size-specific prices.
See Decision Memo at Comment 6.
To value urea (carbamide), we used data in the 2001-2002 financial
report of Flex Foods and February 2001-January 2002 data in Chemical
Weekly.
To value super phosphate and grain, we used data in the 2001-2002
financial report of Flex Foods.
To value spawn, cow manure and straw, we used price data contained
in the 2001-2002 financial reports of Flex Foods and Agro Dutch.
To value gypsum, we used the 2001-2002 financial report of Flex
Foods and April 2001-December 2001 data from Monthly Statistics of the
Foreign Trade of India (``Monthly Statistics'').
To value copper wire scrap, we used April 2001-December 2001 data
from Monthly Statistics because this value is more specific to the
product than the value used in the preliminary results. See Decision
Memo at Comment 8.
We corrected a programming error by including Guangxi Yulin's tape
cost only in its total packing costs (and not in its material costs).
We corrected a calculation error by including the total surrogate
cost for seal glue in Guangxi Yulin's total material costs.
Final Results of Reviews
We determine that the following weighted-average margin percentages
exist for the period February 1, 2001, through January 31, 2002:
------------------------------------------------------------------------
Margin
Exporter (percent)
------------------------------------------------------------------------
Gerber Food (Yunnan) Co., Ltd.............................. 198.63
Green Fresh Foods (Zhangzhou) Co., Ltd..................... 198.63
Guangxi Yulin Oriental Food Co., Ltd. (``Guangxi Yulin'').. 0.00
Guangxi Yulin/All Others................................... 198.63
Shantou Hongda Industrial General Corporation.............. 122.07
Shenxian Dongxing Foods Co., Ltd........................... 61.37
PRC-Wide Rate.............................................. 198.63
------------------------------------------------------------------------
Assessment Rates
The Department shall determine, and the U.S. Bureau of Customs and
Border Protection (``BCBP'') shall assess, antidumping duties on all
appropriate entries. The Department will issue appropriate appraisement
instructions for the companies subject to these reviews directly to the
BCBP within 15 days of publication of the final results of these
reviews. For assessment purposes, we do not have the actual entered
value for any of the respondents for which we calculated a margin
because it is not the importer of record for the subject merchandise.
Therefore, we have calculated individual importer- or customer-specific
assessment rates by aggregating the dumping margins calculated for all
of the U.S. sales
[[Page 41310]]
examined and dividing that amount by the total quantity of the sales
examined. For Shenxian Dongxing, however, because we find that its
quantity data is unreliable, we will instruct the BCBP to apply
Shenxian Dongxing's margin to the entered value of its subject
merchandise as reported to the BCBP during the POR. To determine
whether the duty assessment rates are de minimis (i.e., less than 0.50
percent), in accordance with the requirement set forth in 19 CFR
351.106(c)(2), we have calculated importer- or customer-specific ad
valorem ratios based on export prices. We will instruct the BCBP to
assess antidumping duties on all appropriate entries covered by these
reviews if any importer or customer-specific assessment rate calculated
in the final results of these reviews is above de minimis. For entries
of the subject merchandise during the POR from companies not subject to
these reviews, we will instruct the BCBP to liquidate them at the cash
deposit in effect at the time of entry.
Cash Deposit Requirements
Bonding will no longer be permitted to fulfill security
requirements for shipments from Guangxi Yulin, Shenzhen Qunxingyuan, or
Zhangzhou Jingxiang of certain preserved mushrooms from the PRC
entered, or withdrawn from warehouse, for consumption on or after the
publication date of these final results.
The following deposit rates shall be required for merchandise
subject to the order entered or withdrawn from warehouse, for
consumption on or after the publication date of these final results, as
provided by section 751(a)(1) and 751(a)(2)(B) of the Act: (1) The cash
deposit rates for Gerber, Green Fresh, Guangxi Yulin (i.e., for subject
merchandise both manufactured and exported by Guangxi Yulin), Shantou
Hongda, and Shenxian Dongxing will be the rates indicated above; (2)
the cash deposit rate for PRC exporters for whom the Department has
rescinded the review or for which a review was not requested (e.g.,
China Processed, Compania Envasador, and Raoping Xingyu) will continue
to be the rate assigned in an earlier segment of the proceeding or the
PRC-wide rate of 198.63 percent, whichever applicable; (3) the cash
deposit rate for the PRC NME entity (including Shenzhen Qunxingyuan and
Zhangzhou Jingxiang) and for subject merchandise exported but not
manufactured by Guangxi Yulin will continue to be the PRC-wide rate of
198.63 percent; and (4) the cash deposit rate for non-PRC exporters of
subject merchandise from the PRC will be the rate applicable to the PRC
supplier of that exporter. These deposit requirements shall remain in
effect until publication of the final results of the next
administrative review.
This notice also 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 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 doubled antidumping duties.
This notice also serves as the only reminder to parties subject to
administrative protective orders (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 351.305(a). 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.
We are issuing and publishing these determinations and notice in
accordance with sections 751(a)(1), 751(a)(2)(B), and 777(i) of the Act
and 19 CFR 351.213 and 351.214.
Dated: July 3, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.
Appendix--Issues in Decision Memo
Comments
1. The Application of Facts Available to Gerber and Green Fresh.
2. The Bona Fides of Shenzhen Qunxingyuan's U.S. Sale.
3. The Rescission of the New Shipper Review for Guangxi Yulin.
4. The Use of Himalya's Financial Data to Derive Surrogate
Percentages.
5. The Valuation of Water.
6. Surrogate Value for Cans.
7. The Treatment of Tin Scrap as an Offset.
8. Surrogate Value for Copper Wire Scrap.
[FR Doc. 03-17628 Filed 7-10-03; 8:45 am]