Certain preserved mushrooms covered under this orderare the species Agaricus

Tag : canned mushroom
The Department of Commerce (the Department) is currentlyconducting a new shipper review of the antidumping duty order oncertain preserved mushrooms from the People's Republic of China(PRC) covering the period February 1, 2007, through February 29,2008. We preliminarily determine that the sale made by ZhangzhouGolden Banyan Foodstuffs Industrial Co., Ltd. (Golden Banyan), wasnot made below normal value (NV). If these preliminary results areadopted in our final results of this review, we will instruct U.S.Customs and Border Protection (CBP) to assess antidumping duties onentries of subject merchandise during the period of review (POR)for any importer-specific assessment rates that are above deminimis.
EFFECTIVE DATE: October 3, 2008.
FOR FURTHER INFORMATION CONTACT: Fred Baker or Robert James,AD/CVD Operations, Office 7, Import Administration, InternationalTrade Administration, U.S. Department of Commerce, 14th Street andConstitution Avenue, NW., Washington, DC 20230; telephone: (202)482-2924 or (202) 482-0649, respectively.
SUPPLEMENTARY INFORMATION: On February 19, 1999, the Departmentpublished in the Federal Register an amended final determinationand antidumping duty order on certain preserved mushrooms from thePRC. See Notice of Amendment of Final Determination of Sales atLess Than Fair Value and Antidumping Duty Order: Certain PreservedMushrooms From the People's Republic of China, 64 FR 8308 (February19, 1999) (Order). On February 29, 2008, we received a timely newshipper review request in accordance with section 751(a)(2)(B) ofthe Tariff Act of 1930, as amended (the Tariff Act), and 19 CFR351.214(c), from exporter and producer, Golden Banyan. /1/ On April7, 2008, the Department published a notice in the Federal Registerinitiating a new shipper review for Golden Banyan. See CertainPreserved Mushrooms from the People's Republic of China: Initiationof New Shipper Review, 73 FR 18772 (April 7, 2008) (InitiationNotice).
/1/ In its request for review, Golden Banyan indicated that ithad applied to the Zhangzhou Municipal Industrial and CommercialAdministrative Bureau (Commercial Administrative Bureau) to changeits name to Fujian Golden Banyan Foodstuffs Industrial Co., Ltd. OnDecember 21, 2007, the Commercial Administrative Bureau grantedGolden Banyan advanced approval for the company's requested namechange. At the time it submitted the request for new shipperreview, however, Golden Banyan was still waiting for the namechange to apply to the company's business license and certificateof approval. END FOOTNOTE
We issued the standard antidumping duty questionnaire, alongwith the standard importer questionnaire for new shipper reviews,on April 8, 2008, and received responses in May and June 2008. Weissued supplemental questionnaires covering sections A, C, and D ofthe original questionnaire on July 8, 2008, August 7, 2008, andAugust 22, 2008, respectively, and received timely responses tothose questionnaires.
Period of Review
The POR covers February 1, 2007, through February 29, 2008. /2/
/2/ As we indicated in the initiation notice, Golden Banyan'sshipment entered the United States shortly after the anniversarymonth. Therefore, for the reasons given in the initiation notice,we extended the POR to include Golden Banyan's shipment. SeeInitiation Notice at 18772. END FOOTNOTE
Scope of the Order
The products covered by this order are certain preservedmushrooms, whether imported whole, sliced, diced, or as stems andpieces. The certain preserved mushrooms covered under this orderare the species Agaricus bisporus and Agaricus bitorquis. "CertainPreserved Mushrooms" refers to mushrooms that have been prepared orpreserved 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 buttersauce. Certain preserved mushrooms may be imported whole, sliced,diced, or as stems and pieces. Included within the scope of thisorder are "brined" mushrooms, which are presalted and packed in aheavy salt solution to provisionally preserve them for furtherprocessing. /3/
/3/ On June 19, 2000, the Department affirmed that "marinated,""acidified," or "pickled" mushrooms containing less than 0.5percent acetic acid are within the scope of the antidumping dutyorder. See Recommendation Memorandum--Final Ruling of Request byTak Fat, et al. for Exclusion of Certain Marinated, AcidifiedMushrooms from the Scope of the Antidumping Duty Order on CertainPreserved Mushrooms from the People's Republic of China," datedJune 19, 2000. On February 9, 2005, the United States Court ofAppeals for the Federal Circuit upheld this decision. See Tak Fatv. United States, 396 F.3d 1378 (Fed. Cir. 2005). END FOOTNOTE
Excluded from the scope of this order are the following: (1) Allother species of mushroom, including straw mushrooms; (2) all freshand chilled mushrooms, including "refrigerated" or "quick blanchedmushrooms"; (3) dried mushrooms; (4) frozen mushrooms; and (5)"marinated," "acidified," or "pickled" mushrooms, which areprepared or preserved by means of vinegar or acetic acid, but maycontain oil or other additives.
The merchandise subject to this order is classifiable undersubheadings: 2003.10.0127, 2003.10.0131, 2003.10.0137,2003.10.0143, 2003.10.0147, 2003.10.0153 and 0711.51.0000 of theHarmonized Tariff Schedule of the United States (HTSUS). Althoughthe HTSUS subheadings are provided for convenience and Customspurposes, the written description of the scope of this order isdispositive.
Bona Fide Analysis
Consistent with the Department's practice, we investigated thebona fide nature of the sale made by Golden Banyan for this newshipper review. In evaluating whether a single sale in a newshipper review is commercially reasonable, and therefore bona fide,the Department considers, inter alia, such factors as: (1) Thetiming of the sale; (2) the price and quantity; (3) the expensesarising from the transaction; (4) whether the goods were resold ata profit; and (5) whether the transaction was made on anarm's-length basis. See Tianjin Tiancheng Pharm. Co., Ltd. v.United States, 366 F. Supp. 2d 1246, 1250 (CIT 2005). Accordingly,the Department considers a number of factors in its bona fideanalysis, "all of which may speak to the commercial realitiessurrounding an alleged sale of subject merchandise." See Hebei NewDonghua Amino Acid Co., Ltd. v. United States, 374 F. Supp. 2d1333, 1342 (CIT 2005) (citing Fresh Garlic From the People'sRepublic of China: Final Results of Antidumping AdministrativeReview and Rescission of New Shipper Review, 67 FR 11283 (March 13,2002) and accompanying Issues and Decision Memorandum).
We preliminarily find that the U.S. sale made by Golden Banyanduring the POR was made on a bona fide basis. Specifically, wefind: (1) The timing of the sale does not indicate the sale mightnot be bona fide; (2) the price and quantity of the sale werewithin the range of the prices and quantities of other entries ofsubject merchandise from the PRC into the United States during thePOR, based upon the Department's review of data obtained from CBP;(3) Golden Banyan and its customer did not incur any extraordinaryexpenses arising from the transaction; (4) the sale was resold at aprofit; and (5) the sale was made between unaffiliated parties atarm's-length. See Memorandum from Fred Baker, International TradeCompliance Analyst, to The File via Robert James, Program Manager,Office 7, "Bona Fide Sales Analysis for Zhangzhou Golden BanyanFoodstuffs Industrial Co., Ltd.," dated concurrently with thisnotice.
Based on our review of the record evidence concerning the bonafide nature of this sale, as well as Golden Banyan's eligibilityfor a separate rate (see "Separate Rates Determination" section,below) and the Department's determination that the seller was notaffiliated with any exporter or producer that had previouslyshipped subject merchandise to the United States, we preliminarilydetermine that Golden Banyan has met the requirements to qualify asa new shipper during the POR. Therefore, for purposes of thesepreliminary results, we are treating the sale of subjectmerchandise to the United States as an appropriate transaction forthis new shipper review.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, wehave treated the PRC as a non-market economy (NME) country. Seee.g., Brake Rotors From the People's Republic of China: FinalResults and Partial Rescission of the 2004/2005 AdministrativeReview and Notice of Rescission of 2004/2005 New Shipper Review, 71FR 66304 (November 14, 2006). In accordance with section771(18)(C)(i) of the Tariff Act, any determination that a foreigncountry is an NME country shall remain in effect until revoked bythe administering authority. None of the parties to this proceedinghave contested such treatment. Accordingly, we calculated NV inaccordance with section 773(c) of the Tariff Act, which applies toNME countries.
Separate Rates Determination
A designation of a country as an NME remains in effect until itis revoked by the Department. See section 771(18)(C) of the TariffAct. Accordingly, there is a rebuttable presumption that allcompanies within the PRC are subject to government control, andthus should be assessed a single antidumping duty rate. It is theDepartment's standard policy to assign all exporters of themerchandise subject to review in NME countries a single rate unlessan exporter can affirmatively demonstrate an absence of governmentcontrol, both in law (de jure) and in fact (de facto), with respectto exports. To establish whether a company is sufficientlyindependent to be entitled to a separate, company-specific rate,the Department analyzes each exporting entity in an NME countryunder the test established in the Final Determination of Sales atLess than Fair Value: Sparklers from the People's Republic ofChina, 56 FR 20588 (May 6, 1991), (Sparklers) as amplified by theNotice of Final Determination of Sales at Less Than Fair Value:Silicon Carbide from the People's Republic of China, 59 FR 22585(May 2, 1994) (Silicon Carbide).
Absence of De Jure Control
Evidence supporting, though not requiring, a finding of de jureabsence of government control over export activities includes: (1)An absence of restrictive stipulations associated with theindividual exporter's business and export licenses; (2) anylegislative enactments decentralizing control of companies; and (3)any other formal measures by the government decentralizing controlof companies. See Sparklers, 56 FR at 20589.
In the instant review, Golden Banyan submitted a completeresponse to the separate rates section of the Department'squestionnaire. The evidence submitted in the instant review byGolden Banyan includes government laws and regulations on corporateownership and control, business licenses, and narrative informationregarding the company's operations and selection of management. Theevidence provided by Golden Banyan supports a preliminary findingof a de jure absence of government control over its exportactivities because: (1) There are no controls on exports of subjectmerchandise, such as quotas applied to, or licenses required for,exports of the subject merchandise to the United States; and (2)legislative enactments exist decentralizing control of companies.See Golden Banyan's February 29, 2008, submission at pages 5-7 andExhibits 3-4.
Absence of De Facto Control
The absence of de facto government control over exportsgenerally is based on whether the respondent: (1) Sets its ownexport prices independent of the government and other exporters;(2) retains the proceeds from its export sales and makesindependent decisions regarding the disposition of profits orfinancing of losses; (3) has the authority to negotiate and signcontracts and other agreements; and (4) has autonomy from thegovernment regarding the selection of management. See SiliconCarbide, 59 FR at 22586-87; Sparklers, 56 FR at 20589; and FinalDetermination of Sales at Less Than Fair Value: Furfuryl AlcoholFrom the People's Republic of China, 60 FR 22544, 22545 (May 8,1995).
In its February 29, 2008, submission, Golden Banyan submittedevidence demonstrating an absence of de facto government controlover its export activities. Specifically, this evidence indicates:(1) The company sets its own export prices independent of thegovernment and without the approval of a government authority; (2)the company retains the proceeds from its sales and makesindependent decisions regarding the disposition of profits orfinancing of losses; (3) the company has a general manager and asales manager with the authority to negotiate and bind the companyin an agreement; (4) the general manager is selected by the boardof directors, and the general manager appoints the manager of eachdepartment; and (5) there is no restriction on the company's use ofexport revenues. Therefore, we preliminarily find that GoldenBanyan has established prima facie that it qualifies for a separaterate under the criteria established by Silicon Carbide andSparklers.
Surrogate Country
When the Department investigates imports from an NME country,section 773(c)(1) of the Tariff Act directs it to base NV, in mostcircumstances, on the NME producer's factors of production (FOPs),valued in a surrogate market-economy country or countriesconsidered to be appropriate by the Department. In accordance withsection 773(c)(4) of the Tariff Act, in valuing the FOPs, theDepartment shall utilize, to the extent possible, the prices orcosts of FOPs in one or more market-economy countries that are at alevel of economic development comparable to that of the NME countryand are significant producers of comparable merchandise. Thesources of the surrogate values we have used in this new shipperreview are discussed under the "Normal Value" section, below. OnJune 16, 2008, the Department determined that India, Indonesia, thePhilippines, Colombia, and Thailand are countries comparable to thePRC in terms of economic development, and requested comments frominterested parties on selecting the appropriate surrogate countryfor this review. See Letter to All Interested Parties, RE: NewShipper Review of Certain Preserved Mushrooms from the People'sRepublic of China: Zhangzhou Golden Banyan Foodstuffs IndustrialCo., Ltd., dated July 16, 2008. No party submitted surrogatecountry selection comments.
The Department has examined the export levels /4/ of subjectmerchandise from the above-mentioned countries and found that Indiaand Indonesia are significant producers of comparable merchandise.See Memorandum from Fred Baker, International Trade ComplianceAnalyst, to Richard Weible, Office Director, "Antidumping Duty NewShipper Review of Certain Preserved Mushrooms from the People'sRepublic of China: Selection of a Surrogate Country," datedconcurrently with this notice (Surrogate Country Memorandum) at 4.However, since India has exports in both of the HTS subheadingsidentified for subject merchandise, while Indonesia has exportsunder only one of the HTS subheadings, we find that the Indianexport data are more comprehensive and representative of subjectmerchandise than Indonesian export data. Id. at 5.
/4/ The Department was unable to find world production data forsubject merchandise and relied on export data as a substitute foroverall production. END FOOTNOTE
In selecting the appropriate surrogate country, the Departmentexamines the availability and reliability of data from thecountries deemed to be economically comparable and significantproducers of subject merchandise. For a description of ourpractice, see Department Policy Bulletin No. 04.1: Non-MarketEconomy Surrogate Country Selection Process (March 1, 2004). Indiahas been the primary surrogate country in numerous past segmentsfor this proceeding. In those past segments, the Department foundIndia's import statistics to be an available and reliable sourcefor surrogate values. Id. at 4. Therefore, since India: (1) Is asignificant producer of comparable merchandise, whose production ofsubject merchandise is more comprehensive than Indonesia'sproduction; (2) is at a similar level of economic development asthe PRC; (3) has publicly available and reliable data, which theDepartment has relied upon for numerous segments of thisproceeding; and, (4) India's data are more comprehensive and morerepresentative of the subject merchandise than the data providedfor Indonesia, the Department has selected India as the surrogatecountry, pursuant to section 773(c)(4) of the Tariff Act. SeeSurrogate Country Memorandum at 5.
Fair Value Comparisons
To determine whether Golden Banyan's sale of subject merchandiseto the United States was made at a price below NV, we compared itsU.S. price to NV, as described in the "U.S. Price" and "NormalValue" sections of this notice, below.
U.S. Price
In accordance with section 772(a) of the Tariff Act, we basedU.S. price on the export price (EP) of the sale to the UnitedStates by Golden Banyan because the first sale to an unaffiliatedparty was made before the date of importation and the use ofconstructed export price was not otherwise warranted. We calculatedEP based on the free-on-board (FOB) price to the first unaffiliatedpurchaser in the United States. For this EP sale, we deductedforeign inland freight and foreign brokerage and handling from thestarting price (or gross unit price), in accordance with section772(c) of the Tariff Act. For Golden Banyan's U.S. sale, each ofthese services was provided by an NME vendor. Thus, we based thededuction of these movement charges on surrogate values. We valuedtruck freight expenses using a per-unit average rate calculatedfrom data on the following Web site:http://www.infobanc.com/logistics/logtruck.htm. The logisticssection of this web site contains inland freight truck ratesbetween many large Indian cities. Since this value is notcontemporaneous with the POR, we deflated the rate using thewholesale price index (WPI). See Memorandum from Fred Baker,International Trade Compliance Analyst, through Robert James,Program Manager, to the File, "New Shipper Review of CertainPreserved Mushroom from the People's Republic of China: SurrogateValues for the Preliminary Results" (Surrogate Values Memorandum)at Exhibit 6. We valued foreign brokerage and handling with thepublicly summarized brokerage and handling expense reported in theU.S. sales listing of Indian mushroom producer, Agro DutchIndustries, Ltd. (Agro Dutch), in the 2004-2005 administrativereview of Certain Preserved Mushrooms from India. See SurrogateValues Memorandum at Exhibit 6.
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Tariff Act provides that theDepartment shall determine the NV using an FOP methodology if themerchandise is exported from an NME and the information does notpermit the calculation of NV using home-market prices,third-country prices, or constructed value under section 773(a) ofthe Tariff Act. The Department bases NV on FOPs because thepresence of government controls on various aspects of NMEs rendersprice comparisons and the calculation of production costs invalidunder the Department's normal methodologies. See Tapered RollerBearings and Parts Thereof, Finished or Unfinished, From thePeople's Republic of China: Preliminary Results of Antidumping DutyAdministrative Review and Notice of Intent to Rescind in Part, 70FR 39744 (July 11, 2005), unchanged in Tapered Roller Bearings andParts Thereof, Finished and Unfinished, from the People's Republicof China: Final Results of 2003-2004 Administrative Review andPartial Rescission of Review, 71 FR 2517 (January 17, 2006).
We calculated NV by adding together the value of the FOPs,general expenses, profit, and packing costs. The FOPs for subjectmerchandise include: (1) Quantities of raw materials employed; (2)hours of labor required; (3) amounts of energy and other utilitiesconsumed; (4) representative capital and selling costs; and (5)packing materials. We used the FOPs reported by Golden Banyan formaterials, energy, labor, and packing, and valued those FOPs bymultiplying the amount of the factor consumed in producing subjectmerchandise by the average unit surrogate value of the factor.
In accordance with 19 CFR 351.408(c)(1), when a producer sourcesan input from a market-economy country and pays for it in amarket-economy currency, the Department will normally value the FOPusing the actual price paid for the input. See 19 CFR351.408(c)(1); see also Lasko Metal Products v. United States, 43F.3d 1442, 1445-1446 (Fed. Cir. 1994) (affirming the Department'suse of market-based prices to value certain FOPs). The Departmenthas instituted a rebuttable presumption that market economy inputprices are the best available information for valuing an input whenthe total volume of the input purchased from all market economysources during the period of investigation or review is 33 percentor greater of the total volume of the input purchased from allsources during the period. In such cases, unless case-specificfacts provide adequate grounds to rebut the Department'spresumption, the Department will use the weighted-average marketeconomy purchase price to value the input. Alternatively, when thevolume of an NME firm's purchases of an input from market economysuppliers during the period is below 33 percent of its total volumeof purchases of the input during the period, but where thesepurchases are otherwise valid and there is no reason to disregardthe prices, the Department will weight-average the market economypurchase price with an appropriate surrogate value according totheir respective shares of the total volume of purchases, unlesscase-specific facts provide adequate grounds to rebut thepresumption in favor of using market-economy prices. When an NMEfirm has made market economy input purchases that may have beendumped or subsidized, are not bona fide, or are otherwise notacceptable for use in a dumping calculation, the Department willexclude them from the total quantity of all market economypurchases to ensure a fair determination of whether valid marketeconomy purchases meet the 33 percent threshold. See AntidumpingMethodologies: Market Economy Inputs, Expected Non-Market EconomyWages, Duty Drawback; and Request for Comments, 71 FR 61716(October 19, 2006). In this case, Golden Banyan reported that itdid not purchase any inputs from market economy sources.
In addition, we added freight costs to the surrogate costs thatwe calculated for material inputs. We calculated freight costs bymultiplying surrogate freight rates by the shorter of the reporteddistance from the domestic supplier to the factory that producedthe subject merchandise or the distance from the nearest seaport tothe 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 eachsupplier's distance to no more than the distance from the nearestseaport to Golden Banyan. This adjustment is in accordance with thedecision by the Court of Appeals for the Federal Circuit in SigmaCorp. v. United States, 117 F.3d 1401, 1407-1408 (Fed. Cir. 1997).We increased the calculated costs of the FOPs for surrogate generalexpenses and profit. See Surrogate Values Memorandum.
2. Selection of Surrogate Values
In selecting surrogate values, we followed, to the extentpracticable, the Department's practice of choosing public valueswhich are non-export averages, representative of a range of pricesin effect during the POR, or over a period as close as possible intime to the POR, product-specific, and tax-exclusive. See, e.g.,Notice of Preliminary Determination of Sales at Less Than FairValue, Negative Preliminary Determination of Critical Circumstancesand Postponement of Final Determination: Certain Frozen and CannedWarmwater Shrimp From the Socialist Republic of Vietnam, 69 FR42672, 42682 (July 16, 2004), unchanged in Final Determination ofSales at Less Than Fair Value: Certain Frozen and Canned WarmwaterShrimp From the Socialist Republic of Vietnam, 69 FR 71005(December 8, 2004). We also considered the quality of the source ofsurrogate information in selecting surrogate values. See ManganeseMetal From the People's Republic of China; Final Results andPartial Rescission of Antidumping Duty Administrative Review, 63 FR12440 (March 13, 1998). Where we could obtain only surrogate valuesthat were not contemporaneous with the POR, we inflated (ordeflated) the surrogate values using, where appropriate, the IndianWPI as published in International Financial Statistics by theInternational Monetary Fund. See Surrogate Values Memorandum atExhibit 1.
In calculating surrogate values from import statistics, inaccordance with the Department's practice, we disregardedstatistics for imports from NME countries and countries deemed tomaintain broadly available, non-industry-specific subsidies whichmay benefit all exporters to all export markets (e.g., Indonesia,South Korea, and Thailand). See, e.g., Final Determination of Salesat Less Than Fair Value: Certain Automotive Replacement GlassWindshields From The People's Republic of China, 67 FR 6482(February 12, 2002) and accompanying Issues and Decision Memorandumat Comment 1. See also Notice of Preliminary Determination of Salesat Less Than Fair Value, Postponement of Final Determination, andAffirmative Preliminary Determination of Critical Circumstances:Certain Color Television Receivers From the People's Republic ofChina, 68 FR 66800, 66808 (November 28, 2003), unchanged in Noticeof Final Determination of Sales at Less Than Fair Value andNegative Final Determination of Critical Circumstances: CertainColor Television Receivers From the People's Republic of China, 69FR 20594 (April 16, 2004). Additionally, we excluded from ourcalculations imports that were labeled as originating from anunspecified country because we could not determine whether theywere from an NME country.
We valued production material inputs (mushroom spawn, ricestraw, and manure) using the fiscal year (FY) 2006-2007 (April 2006through March 2007) financial statements of Agro Dutch or FlexFoods Ltd. (Flex Foods), Indian producers of mushrooms andvegetables, as follows. To value the input of mushroom spawn, weused data from the FY 2004-2005 financial statement of Agro Dutchbecause Agro Dutch's mushroom spawn value is specific to thespecies Agaricus bisporous, which is the species used to producesubject merchandise. To value the input of rice straw, we used therice straw value from the FY 2006-2007 financial statement of FlexFoods because this value is specific to the input. Similarly, tovalue the input of manure, we used the manure value from the FY2004-2005 financial statement of Agro Dutch because this value isspecific to the input. See Surrogate Values Memorandum at Exhibit2.
We valued processing and canning material inputs (super calciumphosphate, calcium carbonate, spawn, refined salt, citric acid, tinplate, copper wire, and sealing glue) using weighted-average Indianimport values derived from the World Trade Atlas online (WTA), forthe period February 2007 through January 2008. See Surrogate ValuesMemorandum at Exhibits 2 and 3. In addition, we valued packingmaterial inputs (corrugated boxes, labels, paper board, hard paperboard, adhesive tape, and glue) with weighted-average Indian importvalues derived from the WTA for the period February 2007 throughJanuary 2008. Id. at Exhibit 5. The Indian import statisticsobtained from the WTA were published by the Indian DirectorateGeneral of Commercial Intelligence and Statistics, Ministry ofCommerce of India and are contemporaneous with the POR. As theIndian surrogate values were denominated in rupees, in accordancewith section 773A(a) of the Tariff Act, they were converted to U.S.dollars using the official exchange rate for India recorded on thedate of sale of subject merchandise in this case. Seehttp://www.ia.ita.doc.gov/exchange/index.html.
To value land rent, the Department used data from the 2001Punjab State Development Report, administered by the PlanningCommission of the Government of India. Since the value of land rentwas not contemporaneous with the POR, the Department adjusted thevalue for inflation. See Surrogate Values Memorandum at Exhibit 2.
We valued electricity using price data for small, medium, andlarge industries, as published by the Central Electricity Authorityof the Government of India in its publication titled ElectricityTariff & Duty and Average Rates of Electricity Supply in India,dated July 2006. These electricity rates represent actualcountry-wide publicly-available information on tax-exclusiveelectricity rates charged to industries in India. Since the ratesare not contemporaneous with the POR, we inflated the values usingthe WPI. See Surrogate Value Memorandum at Exhibit 3.
To value water, the Department used data from the MaharastraIndustrial Development Corporation (http://www.midcindia.org) forJune 2003, which we found to be the best available informationsince it includes a wide range of industrial water rates. Since thewater rates were not contemporaneous with the POR, the Departmentadjusted the value for inflation. See Surrogate Values Memorandumat Exhibit 4.
We valued truck freight expenses for inputs the same surrogatedata we used for valuing domestic inland freight for GoldenBanyan's U.S. sale (i.e., we used data from the Web sitehttp://www.infobanc.com/logistics/logtruck.htm, which containsinland freight truck rates between many large Indian cities). Sincethese values are not contemporaneous with the POR, we deflated therate using the WPI. See Surrogate Values Memorandum at Exhibit 6.
The Department's regulations require the use of aregression-based wage rate. See 19 CFR 351.408(c)(3). Therefore, tovalue labor, the Department used the regression-based wage rate forthe PRC published on the Import Administration Web site. See the IAWeb site: http://ia.ita.doc.gov/wages/05wages/05wages-041608.html,and see Corrected 2007 Calculation of Expected Non-Market EconomyWages, 73 FR 27795 (May 14, 2008).
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 statementsof Agro Dutch and Flex Foods. The Department notes that Agro Dutchis a producer of mushrooms, and Flex Foods is a producer ofmushrooms and vegetable products. Therefore, Agro Dutch's and FlexFoods' financial ratios for OH and SG&A are comparable toGolden Banyan's financial ratios because Agro Dutch's and FlexFoods' production experience is comparable to Golden Banyan'sproduction experience by virtue of each company's production ofsubject merchandise. Additionally, the financial statements ofthese two companies are contemporaneous for two months of the POR.Moreover, an average of the financial statements of Agro Dutch andFlex Foods represents a broader spectrum of the Indian mushroomindustry, than the financial statement of a single mushroomproducer. See Surrogate Values Memorandum at Exhibit 8.
Currency Conversion
We made currency conversions into U.S. dollars, in accordancewith section 773A(a) of the Tariff Act, based on the exchange ratesin effect on the dates of the U.S. sales as certified by theFederal Reserve Bank. These exchange rates can be accessed at theWeb site of Import Administration athttp://ia.ita.doc.gov/exchange/index.html.
Preliminary Results of Review
We preliminarily determine that the following margin existsduring the period February 1, 2007, through February 29, 2008:






Public Comment
The Department will disclose to parties to this proceeding thecalculations performed in reaching the preliminary results withinfive days of publication of these preliminary results. Interestedparties may submit written comments (case briefs) within 30 days ofpublication of the preliminary results and rebuttal comments(rebuttal briefs) within five days after the time limit for filingcase briefs. See 19 CFR 351.309(c)(1)(ii) and 351.309(d)(1).Pursuant to 19 CFR 351.309(d)(2), rebuttal briefs must be limitedto issues raised in the case briefs. Parties who submit argumentsare requested to submit with the argument: (1) A statement of theissue; (2) a brief summary of the argument; and (3) a table ofauthorities. Further, the Department requests that partiessubmitting written comments provide the Department with a diskettecontaining the public version of those comments.
Any interested party may request a hearing within 30 days ofpublication of this notice. See 19 CFR 351.310(c). Interestedparties who wish to request a hearing or to participate if one isrequested, must submit a written request to the Assistant Secretaryfor Import Administration within 30 days of publication of thisnotice. Requests should contain: (1) The party's name, address, andtelephone number; (2) the number of participants; and (3) a list ofissues to be discussed. See 19 CFR 351.310(c). Issues raised in thehearing will be limited to those raised in the briefs.
Unless the deadline is extended pursuant to section751(a)(2)(B)(iv) of the Tariff Act, the Department will issue thefinal results of this new shipper review, including the results ofour analysis of the issues raised by the parties in their comments,within 90 days of publication of these preliminary results.
Assessment Rates
Upon issuing the final results of the review, the Departmentshall determine, and CBP shall assess, antidumping duties on allappropriate entries. The Department intends to issue assessmentinstructions to CBP 15 days after the date of publication of thefinal results of review. Pursuant to 19 CFR 351.212(b)(1), we willcalculate importer-specific ad valorem duty assessment rates basedon the ratio of the total amount of the dumping margins calculatedfor the examined sales to the total entered value of those samesales. We will instruct CBP to assess antidumping duties on allappropriate entries covered by this review if any importer-specificassessment rate calculated in the final results of this review isabove de minimis. However, the final results of this review shallbe the basis for the assessment of antidumping duties on entries ofmerchandise covered by the final results of these reviews and forfuture deposits of estimated duties, where applicable.
Cash Deposit Requirements
The following cash deposit requirements, when imposed, will beeffective upon publication of the final results of this new shipperreview for all shipments of subject merchandise exported by GoldenBanyan entered, or withdrawn from warehouse, for consumption on orafter the publication date, as provided by section 751(a)(2)(C) ofthe Tariff Act: (1) For subject merchandise manufactured andexported by Golden Banyan, the cash-deposit rate will be thatestablished in the final results of this review; (2) for subjectmerchandise exported by Golden Banyan but not manufactured byGolden Banyan, the cash deposit rate will continue to be thePRC-wide rate (i.e., 198.63 percent); and (3) for subjectmerchandise manufactured by Golden Banyan but exported by any otherparty, the cash deposit rate will be the rate applicable to theexporter. If the cash deposit rate calculated for Golden Banyan inthe final results is zero or de minimis, a zero cash deposit willbe required for entries of subject merchandise both produced andexported by Golden Banyan. These cash deposit requirements, whenimposed, shall remain in effect until further notice.
Notification to Importers
This notice serves as a preliminary reminder to importers oftheir responsibility under 19 CFR 351.402(f)(2) to file acertificate regarding the reimbursement of antidumping duties priorto liquidation of the relevant entries during this review period.Failure to comply with this requirement could result in theSecretary's presumption that reimbursement of antidumping dutiesoccurred and the subsequent assessment of double antidumpingduties.
This new shipper review and notice are in accordance withsections 751(a)(2)(B) and 777(i) of the Tariff Act and 19 CFR351.214(h)(i).
Dated: September 29, 2008.
David Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-23396 Filed 10-2-08; 8:45 am]
BILLING CODE 3510-DS-P
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