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

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

------------------------------------------------------------------------

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]

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