Antidumping: Preserved mushrooms from— India,

[Federal Register: August 20, 2004 (Volume 69, Number 161)]

[Notices]

[Page 51630-51632]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20au04-30]

DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-813]

Certain Preserved Mushrooms From India: Final Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, Department of Commerce.

ACTION: Notice of final results of antidumping duty administrative review.

SUMMARY: On March 8, 2004, the Department of Commerce published the preliminary results of the fourth administrative review of the antidumping duty order on certain preserved mushrooms from India. The review covers five manufacturers/exporters. The period of review is February 1, 2002, through January 31, 2003.

Based on our analysis of the comments received, we have made changes in the margin calculations. Therefore, the final results differ from the preliminary results. The final weighted-average dumping margins for the reviewed firms are listed below in the section entitled ``Final Results of Review.''

EFFECTIVE DATE: August 20, 2004.

FOR FURTHER INFORMATION CONTACT: David J. Goldberger or Katherine Johnson, AD/CVD Office 2, Import Administration-Room B099, 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.

SUPPLEMENTARY INFORMATION:

Background

The review covers five manufacturers/exporters: Agro Dutch Industries Ltd. (``Agro Dutch''), Dinesh Agro Products, Ltd. (``Dinesh Agro''), Premier Mushroom Farms (``Premier''), Saptarishi Agro Industries, Ltd. (``Saptarishi Agro''), and Weikfield Agro Products Ltd. (``Weikfield''). The period of review is February 1, 2002, through January 31, 2003.

On March 8, 2004, the Department of Commerce (``the Department'') published the preliminary results of the fourth administrative review of the antidumping duty order on certain preserved mushrooms from India (69 FR 10659) (``Preliminary Results''). We invited parties to comment on the preliminary results of review. On March 22, 2004, we received a request for a public hearing from the petitioner.\1\

\1\ The petitioner is 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.

On May 5, 2004, the Department published in the Federal Register the postponement of the final results of the administrative review of the antidumping duty order on certain preserved mushrooms from India (69 FR 25063). We conducted a verification of Agro Dutch's sales data from May 18 through May 21, 2004. At our request, Agro Dutch submitted revised sales data bases on June 2, 2004, which incorporated revisions resulting from the verification.

We received case briefs from Weikfield on June 7, 2004, (brief dated June 2, 2004), and the petitioner, Agro Dutch, and Premier on June 10, 2004. The petitioner and Agro Dutch filed rebuttal briefs on June 17, 2004. Agro Dutch withdrew its rebuttal brief on June 22, 2004, and submitted a replacement brief on June 24, 2004.\2\ On June 28, 2004, the petitioner withdrew its request for a public hearing. We have conducted this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (``the Act'').

\2\ The circumstances regarding the withdrawal and replacement of the Agro Dutch rebuttal brief are discussed in a June 28, 2004, memorandum to the file.

Scope of the Order

The products covered by the order are certain preserved mushrooms, whether imported whole, sliced, diced, or as stems and pieces. The preserved mushrooms covered under the 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,

[[Page 51631]]

brine, butter or butter sauce. Preserved mushrooms may be imported whole, sliced, diced, or as stems and pieces. Included within the scope of the 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 the 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 the order is currently 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, our written description of the scope of the order is dispositive.

Use of Facts Available

As discussed in the Preliminary Results, neither Dinesh Agro nor Saptarishi Agro submitted a response to the Department's antidumping questionnaire. Because of Dinesh Agro's and Saptarishi Agro's refusal to cooperate in this review, we determined that the application of facts available is appropriate, pursuant to section 776(a)(2) of the Act. Further, we determined that it was appropriate to make adverse inferences in applying facts available, in accordance with section 776(b) of the Act. As adverse facts available, we assigned to exports of the subject merchandise produced by Dinesh Agro and Saptarishi Agro the rate of 66.24 percent, the highest rate calculated for any cooperative respondent in the original less-than-fair-value (``LTFV'') investigation or the three previous administrative reviews. We have received no comments on this determination, nor have we found any basis to change this determination. Accordingly, we have applied the adverse facts available rates of 66.24 percent to the exports of the subject merchandise produced by Dinesh Agro and Saptarishi Agro for the POR.

Duty Absorption

As discussed in the Preliminary Results, the Department preliminarily determined that antidumping duties have been absorbed by the producer or exporter during the POR on those sales for which the respondent was the importer of record, in accordance with section 751(a)(4) of the Act, because none of the respondents responded to the Department's request for evidence that the unaffiliated purchaser will pay the full duty ultimately assessed on the subject merchandise. Premier was the importer of record for all of its sales to the United States, while Agro Dutch and Weikfield were the importers of record for most of their respective U.S. sales. In addition, we found duty absorption for both Dinesh Agro and Saptarishi Agro on all of their sales, based on adverse facts available, because neither company responded to the Department's questionnaire.

As discussed in the ``Issues and Decision Memorandum'' (``Decision Memo'') from Jeffrey May, Deputy Assistant Secretary for Import Administration, to James J. Jochum, Assistant Secretary for Import Administration, dated August 13, 2004, at Comment 5, Agro Dutch contended that, during verification, the Department obtained documents which demonstrated that Agro Dutch did not absorb the duties. We disagree with Agro Dutch's contention and find no basis to change this determination for Agro Dutch or any of the other respondents. Accordingly, we find that antidumping duties have been absorbed by the producer or exporter during the POR on those sales for which the respondent was the importer of record.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this antidumping duty administrative review are addressed in the Decision Memo, which is hereby adopted by this notice. A list of the issues which parties have raised and to which we have responded, 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 this review 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/frn. The paper copy and electronic version of the

Decision Memo are identical in content.

Changes From the Preliminary Results

Based on our analysis of the comments received, we have made certain changes to the margin calculations, including:

1. We relied on the revised Israeli and U.S. sales data bases submitted by Agro Dutch on June 2, 2004, which incorporated its verification revisions and corrections. We also made additional data corrections based on our verification findings.

2. In using the revised data bases, we found that all of Agro Dutch's sales to Israel were below the COP in the final results. Therefore, we compared all of Agro Dutch's U.S. sales to constructed value (``CV''). Accordingly, we relied on the weighted-average selling expenses and profit ratios derived from Premier's and Weikfield's final results calculations to calculate CV for Agro Dutch.

3. We revised our calculation of indirect selling expenses incurred on U.S. sales for returned merchandise to include the costs of returning all of the merchandise back to India, rather than limiting the expense to the un-resold portion of the returned products as we did in the preliminary results.

4. We corrected the calculation of Agro Dutch's normal value in the comparison market and margin calculation programs to deduct third- country imputed credit expenses from the gross unit price, and to apply the commission offset based on CV selling expenses in the price-to-CV comparisons.

5. We corrected the Agro Dutch margin calculation program to make the proper deduction for third-country commission expenses.

6. We corrected the Premier margin calculation program to treat inventory carrying costs on U.S. sales as an Indian rupee expense, rather than a U.S. dollar expense.

7. We corrected the calculation of Premier's normal value to deduct properly home market commissions from the gross unit price.

8. We corrected the calculation of Weikfield's normal value to deduct home market discounts and commissions paid to unaffiliated parties from the gross unit price in the cost of production test and the calculation of normal value.

Final Results of Review

We determine that the following weighted-average margin percentages exist:

Margin Manufacturer/exporter

(percent)

Agro Dutch Industries Ltd................................... 34.57 Dinesh Agro Products, Ltd................................... 66.24 Premier Mushroom Farms...................................... 18.30 Saptarishi Agro Industries, Ltd............................. 66.24 Weikfield Agro Products Ltd.................................

9.35

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Assessment

The Department shall determine, and U.S. Customs and Border Protection (``CBP'') shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212. The Department will issue appropriate appraisement instructions for the companies subject to this review directly to CBP within 15 days of publication of these final results of review. In accordance with 19 CFR 351.106(c)(1), we will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., is not less than 0.50 percent). With respect to Agro Dutch and Premier, we calculated importer-specific assessment rates for the subject merchandise by aggregating the dumping margins calculated for all of the U.S. sales examined and dividing this amount by the total entered value of the sales examined. For Weikfield, we do not have the actual entered value of its sales because this respondent is not the importer of record for some of its U.S. sales. Accordingly, we calculated importer-specific assessment rates by aggregating the dumping margins calculated for all of Weikfield's U.S. sales examined and dividing the respective amount by the total quantity of the sales examined. To determine whether the duty assessment rates were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad valorem ratios based on export prices.

Cash Deposit Requirements

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) The cash deposit rates for the reviewed companies will be those established in the final results of this review, except if the rate is less than 0.50 percent, and therefore de minimis within the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit rate will be zero; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 11.30 percent. This rate is the ``All Others'' rate from the LTFV investigation. 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) 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 serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation. We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Dated: August 13, 2004. James J. Jochum, Assistant Secretary for Import Administration.

Appendix--List of Issues

Company-Specific Comments

Agro Dutch

Comment 1: Treatment of Agro Dutch's Expenses for Returned Shipments as Direct or Indirect Expenses Comment 2: Treatment of Inspection Expenses Comment 3: Selling Expenses and Profit Ratio for Agro Dutch Constructed Value Comment 4: Corrections to the Calculation of Agro Dutch Normal Value Comment 5: Duty Absorption on Agro Dutch's Sales

Premier

Comment 6: Errors in Premier Margin Calculation

Weikfield

Comment 7: Corrections to Calcualtion of Weikfield Normal Value >

[FR Doc. 04-19140 Filed 8-19-04; 8:45 am]