Daily Rules, Proposed Rules, and Notices of the Federal Government
On February 19, 1999, the Department published in the
We issued the standard antidumping duty questionnaire, along with the standard importer questionnaire for new shipper reviews, on April 8, 2008, and received responses in May and June 2008. We issued supplemental questionnaires covering sections A, C, and D of the original questionnaire on July 8, 2008, August 7, 2008, and August 22, 2008, respectively, and received timely responses to those questionnaires.
The POR covers February 1, 2007, through February 29, 2008.
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
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.
Consistent with the Department's practice, we investigated the
We preliminarily find that the U.S. sale made by Golden Banyan during the POR was made on a
Based on our review of the record evidence concerning the
In every case conducted by the Department involving the PRC, we have treated the PRC as a non-market economy (NME) country.
A designation of a country as an NME remains in effect until it is revoked by the Department.
Evidence supporting, though not requiring, a finding of
In the instant review, Golden Banyan submitted a complete response to the separate rates section of the Department's questionnaire. The evidence submitted in the instant review by Golden Banyan includes government laws and regulations on corporate ownership and control, business licenses, and narrative information regarding the company's operations and selection of management. The evidence provided by Golden Banyan supports a preliminary finding of a
The absence of
In its February 29, 2008, submission, Golden Banyan submitted evidence demonstrating an absence of
When the Department investigates imports from an NME country, section 773(c)(1) of the Tariff Act directs it to base NV, in most circumstances, on the NME producer's factors of production (FOPs), 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 Tariff Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs 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 new shipper review are discussed under the “Normal Value” section, below. On June 16, 2008, the Department determined that India, Indonesia, the Philippines, Colombia, and Thailand are countries comparable to the PRC in terms of economic development, and requested comments from interested parties on selecting the appropriate surrogate country for this review.
The Department has examined the export levels
In selecting the appropriate surrogate country, the Department examines the availability and reliability of data from the countries deemed to be economically comparable and significant producers of subject merchandise. For a description of our practice,
To determine whether Golden Banyan's sale of subject merchandise to the United States was made at a price below NV, we compared its U.S. price to NV, as described in the “U.S. Price” and “Normal Value” sections of this notice, below.
In accordance with section 772(a) of the Tariff Act, we based U.S. price on the export price (EP) of the sale to the United States by Golden Banyan because the first sale to an unaffiliated party was made before the date of importation and the use of constructed export price was not otherwise warranted. We calculated EP based on the free-on-board (FOB) price to the first unaffiliated purchaser in the United States. For this EP sale, we deducted foreign inland freight and foreign brokerage and handling from the starting price (or gross unit price), in accordance with section 772(c) of the Tariff Act. For Golden Banyan's U.S. sale, each of these services was provided by an NME vendor. Thus, we based the deduction of these movement charges on surrogate values. We valued truck freight expenses using a per-unit average rate calculated from data on the following Web site:
Section 773(c)(1)(B) of the Tariff Act provides that the Department shall determine the NV using an FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Tariff Act. The Department bases NV on FOPs because the presence of government controls on various aspects of NMEs renders price comparisons and the calculation of production costs invalid under the Department's normal methodologies.
We calculated NV by adding together the value of the FOPs, general expenses, profit, and packing costs. The FOPs for subject merchandise include: (1) Quantities of raw materials employed; (2) hours of labor required; (3) amounts of energy and other utilities consumed; (4) representative capital and selling costs; and (5) packing materials. We used the FOPs reported by Golden Banyan for materials, energy, labor, and packing, and valued those FOPs by multiplying the amount of the factor consumed in producing subject merchandise by the average unit surrogate value of the factor.
In accordance with 19 CFR 351.408(c)(1), when a producer sources an input from a market-economy country and pays for it in a market-economy currency, the Department will normally value the FOP using the actual price paid for the input.
In addition, we added freight costs to the surrogate costs that we calculated for material inputs. We calculated freight costs by multiplying surrogate freight rates by the shorter of the reported distance from the domestic supplier to the factory that produced the subject merchandise or the distance from the nearest seaport to the factory that produced the subject merchandise, as appropriate. Where there were multiple domestic suppliers of a material input, we calculated a weighted-average distance after limiting each supplier's distance to no more than the distance from the nearest seaport to Golden Banyan. This adjustment is in accordance with the decision by the Court of Appeals for the Federal Circuit in
In selecting surrogate values, we followed, to the extent practicable, the Department's practice of choosing public values which are non-export averages, representative of a range of prices in effect during the POR, or over a period as close as possible in time to the POR, product-specific, and tax-exclusive.
In calculating surrogate values from import statistics, in accordance with the Department's practice, we disregarded statistics for imports from NME countries and countries deemed to maintain broadly available, non-industry-specific subsidies which may benefit all exporters to all export markets (
We valued production material inputs (mushroom spawn, rice straw, and manure) using the fiscal year (FY) 2006-2007 (April 2006 through March 2007) financial statements of Agro Dutch or Flex Foods Ltd. (Flex Foods), Indian producers of mushrooms and vegetables, as follows. To value the input of mushroom spawn, we used data from the FY 2004-2005 financial statement of Agro Dutch because Agro Dutch's mushroom spawn value is specific to the species
We valued processing and canning material inputs (super calcium phosphate, calcium carbonate, spawn, refined salt, citric acid, tin plate, copper wire, and sealing glue) using weighted-average Indian import values derived from the World Trade Atlas online (WTA), for the period February 2007 through January 2008.
To value land rent, the Department used data from the
We valued electricity using price data for small, medium, and large industries, as published by the Central Electricity Authority of the Government of India in its publication titled
To value water, the Department used data from the Maharastra Industrial Development Corporation (
We valued truck freight expenses for inputs the same surrogate data we used for valuing domestic inland freight for Golden Banyan's U.S. sale (
The Department's regulations require the use of a regression-based wage rate.
To value the surrogate financial ratios for factory overhead (OH), selling, general & administrative (SG&A) expenses, and profit, the Department used the 2006-2007 financial statements of Agro Dutch and Flex Foods. The Department notes that Agro Dutch is a producer of mushrooms, and Flex Foods is a producer of mushrooms and vegetable products. Therefore, Agro Dutch's and Flex Foods' financial ratios for OH and SG&A are comparable to Golden Banyan's financial ratios because Agro Dutch's and Flex Foods' production experience is comparable to Golden Banyan's production experience by virtue of each company's production of subject merchandise. Additionally, the financial statements of these two companies are contemporaneous for two months of the POR. Moreover, an average of the financial statements of Agro Dutch and Flex Foods represents a broader spectrum of the Indian mushroom industry, than the financial statement of a single mushroom producer.
We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Tariff Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. These exchange rates can be accessed at the Web site of Import Administration at
We preliminarily determine that the following margin exists during the period February 1, 2007, through February 29, 2008:
The Department will disclose to parties to this proceeding the calculations performed in reaching the preliminary results within five days of publication of these preliminary results. Interested parties may submit written comments (case briefs) within 30 days of publication of the preliminary results and rebuttal comments (rebuttal briefs) within five days after the time limit for filing case briefs.
Any interested party may request a hearing within 30 days of publication of this notice.
Unless the deadline is extended pursuant to section 751(a)(2)(B)(iv) of the Tariff 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 90 days of publication of these preliminary results.
Upon issuing the final results of the review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific
The following cash deposit requirements, when imposed, will be effective upon publication of the final results of this new shipper review for all shipments of subject merchandise exported by Golden Banyan entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Tariff Act: (1) For subject merchandise manufactured and exported by Golden Banyan, the cash-deposit rate will be that established in the final results of this review; (2) for subject merchandise exported by Golden Banyan but not manufactured by Golden Banyan, the cash deposit rate will continue to be the PRC-wide rate (
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)(2)(B) and 777(i) of the Tariff Act and 19 CFR 351.214(h)(i).