Notice2022-23922
Certain Preserved Mushrooms From the Netherlands: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures
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Published
November 3, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
The U.S. Department of Commerce (Commerce) preliminarily determines that certain preserved mushrooms (preserved mushrooms) from the Netherlands are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation is January 1, 2021, through December 31, 2021. Interested parties are invited to comment on this preliminary determination.
Full Text
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<title>Federal Register, Volume 87 Issue 212 (Thursday, November 3, 2022)</title>
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[Federal Register Volume 87, Number 212 (Thursday, November 3, 2022)]
[Notices]
[Pages 66265-66268]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-23922]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-421-815]
Certain Preserved Mushrooms From the Netherlands: Preliminary
Affirmative Determination of Sales at Less Than Fair Value,
Postponement of Final Determination, and Extension of Provisional
Measures
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily
determines that certain preserved mushrooms (preserved mushrooms) from
the Netherlands are being, or are likely to be, sold in the United
States at less than fair value (LTFV). The period of investigation is
January 1, 2021, through December 31, 2021. Interested parties are
invited to comment on this preliminary determination.
DATES: Applicable November 3, 2022.
FOR FURTHER INFORMATION CONTACT: Benjamin A. Smith or Patrick Barton,
AD/CVD Operations, Office III, Enforcement and Compliance,
[[Page 66266]]
International Trade Administration, U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-2181
or (202) 482-0012, respectively.
SUPPLEMENTARY INFORMATION:
Background
This preliminary determination is made in accordance with section
733(b) of the Tariff Act of 1930, as amended (the Act). Commerce
published the notice of initiation of this investigation on April 27,
2022.\1\ On August 16, 2022, Commerce postponed the preliminary
determination of this investigation until October 27, 2022.\2\
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\1\ See Certain Preserved Mushrooms from France, the
Netherlands, Poland, and Spain: Initiation of Less-Than-Fair-Value
Investigations, 87 FR 24941 (April 27, 2022) (Initiation Notice).
\2\ See Certain Preserved Mushrooms from the Netherlands,
Poland, and Spain: Postponement of Preliminary Determinations in the
Less-Than-Fair Value Investigations, 87 FR 50291 (August 16, 2022).
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For a complete description of the events that followed the
initiation of this investigation, see the Preliminary Decision
Memorandum.\3\ A list of topics included in the Preliminary Decision
Memorandum is included as Appendix II to this notice. The Preliminary
Decision Memorandum is a public document and is on file electronically
via Enforcement and Compliance's Antidumping and Countervailing Duty
Centralized Electronic Service System (ACCESS). ACCESS is available to
registered users at <a href="https://access.trade.gov">https://access.trade.gov</a>. In addition, a complete
version of the Preliminary Decision Memorandum can be accessed directly
at <a href="https://access.trade.gov/public/FRNoticesListLayout.aspx">https://access.trade.gov/public/FRNoticesListLayout.aspx</a>.
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\3\ See Memorandum, ``Decision Memorandum for the Preliminary
Affirmative Determination in the Less-Than-Fair-Value Investigation
of Certain Preserved Mushrooms from the Netherlands,'' dated
concurrently with, and hereby adopted by, this notice (Preliminary
Decision Memorandum).
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Scope of the Investigation
The product covered by this investigation is preserved mushrooms
from the Netherlands. For a complete description of the scope of this
investigation, see Appendix I.
Scope Comments
In accordance with the preamble to Commerce's regulations,\4\ the
Initiation Notice, Commerce set aside a period of time for parties to
raise issues regarding product coverage (i.e., scope).\5\ No interested
party commented on the scope of this investigation as it appeared in
the Initiation Notice. Therefore, Commerce is not preliminarily
modifying the scope language as it appeared in the Initiation Notice.
See the full description of the scope in Appendix I to this notice.
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\4\ See Antidumping Duties; Countervailing Duties, Final Rule,
62 FR 27296, 27323 (May 19, 1997).
\5\ See Initiation Notice, 87 FR at 24942.
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Methodology
Commerce is conducting this investigation in accordance with
section 731 of the Act. Commerce has calculated export prices in
accordance with section 772(a) of the Act. Normal value is calculated
in accordance with section 773 of the Act. Furthermore, pursuant to
sections 776(a) and (b) of the Act, Commerce has preliminarily relied
upon facts otherwise available, with adverse inferences for Okechamp
B.V. (Okechamp). For a full description of the methodology underlying
the preliminary determination, see the Preliminary Decision Memorandum.
All-Others Rate
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that
in the preliminary determination Commerce shall determine an estimated
all-others rate for all exporters and producers not individually
examined. This rate shall be an amount equal to the weighted average of
the estimated weighted-average dumping margins established for
exporters and producers individually investigated, excluding any zero
and de minimis margins, and any margins determined entirely under
section 776 of the Act.
Pursuant to section 735(c)(5)(B) of the Act, if the estimated
weighted-average dumping margins established for all exporters and
producers individually examined are zero, de minimis, or determined
based entirely on facts otherwise available, Commerce may use any
reasonable method to establish the estimated weighted-average dumping
margin for all other producers or exporters. Commerce has preliminarily
assigned a rate based entirely on facts available, pursuant to section
776 of the Act, to Okechamp, and calculated a zero percent weighted-
average dumping margin for Prochamp B.V. (Prochamp). Therefore, there
are no rates calculated in this investigation not zero, de minimis, or
based entirely on facts otherwise available upon which to calculate the
preliminary rate for all exporters and producers not individually
examined. Pursuant to section 735(c)(5)(B) of the Act, Commerce's
normal practice under these circumstances has been to calculate the
all-others rate as a simple average of the alleged dumping margin(s)
from the petition.\6\
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\6\ See, e.g., Notice of Preliminary Determination of Sales at
Less Than Fair Value: Sodium Nitrite from the Federal Republic of
Germany, 73 FR 21909, 21912 (April 23, 2008), unchanged in Notice of
Final Determination of Sales at Less Than Fair Value: Sodium Nitrite
from the Federal Republic of Germany, 73 FR 38986, 38987 (July 8,
2008), and accompanying Issues and Decision Memorandum at Comment 2;
see also Notice of Final Determination of Sales at Less Than Fair
Value: Raw Flexible Magnets from Taiwan, 73 FR 39673, 39674 (July
10, 2008); Steel Threaded Rod from Thailand: Preliminary
Determination of Sales at Less Than Fair Value and Affirmative
Preliminary Determination of Critical Circumstances, 78 FR 79670,
79671 (December 31, 2013), unchanged in Steel Threaded Rod from
Thailand: Final Determination of Sales at Less Than Fair Value and
Affirmative Final Determination of Critical Circumstances, 79 FR
14476, 14477 (March 14, 2014).
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Preliminary Determination
Commerce preliminarily determines that the following estimated
weighted-average dumping margins exist:
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\7\ See Preliminary Decision Memorandum at section V, ``Use of
Facts Available with Adverse Inferences.'' See also Initiation
Notice, 87 FR at 24944.
\8\ See Memorandum, ``Preliminary Determination Analysis
Memorandum for Prochamp B.V.,'' dated concurrently with this
memorandum.
\9\ See ``All Others Rate'' section, supra; see also Initiation
Notice, 87 FR at 24944 and accompanying Antidumping Duty
Investigation Initiation Checklist, ``Certain Preserved Mushrooms
from the Netherlands,'' dated April 20, 2022. The margins alleged in
the Petition were 120.88, 131.45, and 146.59 percent.
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Estimated
weighted-
average
Producer/exporter dumping
margin
(percent)
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Okechamp B.V................................................ \7\ 146.59
Prochamp B.V................................................ \8\ 0.00
All Others.................................................. \9\ 132.97
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Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, Commerce will
direct U.S. Customs and Border Protection (CBP) to suspend liquidation
of entries of subject merchandise described in Appendix I, entered, or
withdrawn from warehouse, for consumption on or after the date of
publication of this notice in the Federal Register. Further, pursuant
to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will
instruct CBP to require a cash deposit equal to the estimated weighted-
average dumping margin or the estimated all-others rate, as follows:
(1) the cash deposit rate for the respondents listed above will be
equal to the company-specific estimated weighted-average dumping
margins determined in this preliminary determination; (2) if the
exporter is not
[[Page 66267]]
a respondent identified above, but the producer is, then the cash
deposit rate will be equal to the company-specific estimated weighted-
average dumping margin established for that producer of the subject
merchandise except as explained below; and (3) the cash deposit rate
for all other producers and exporters will be equal to the all-others
estimated weighted-average dumping margin.
Because the estimated weighted-average dumping margin is zero for
Prochamp, entries of shipments of subject merchandise from Prochamp
will not be subject to suspension of liquidation or cash deposit
requirements. In such situations, Commerce applies the exclusion to the
provisional measures to the producer/exporter combination that was
examined in the investigation. Accordingly, Commerce is directing CBP
not to suspend liquidation of entries of subject merchandise produced
and exported by Prochamp. Entries of shipments of subject merchandise
from this company in any other producer/exporter combination, or by
third parties that sourced subject merchandise from the excluded
producer/exporter combination, are subject to the provisional measures
at the all-others rate.
Should the final estimated weighted-average dumping margin be zero
or de minimis for the producer/exporter combination identified above,
entries of shipments of subject merchandise from this producer/exporter
combination will be excluded from the potential antidumping duty order.
Such exclusions are not applicable to merchandise exported to the
United States by this respondent in any other producer/exporter
combinations or by third parties that sourced subject merchandise from
the excluded producer/exporter combination.
These suspension of liquidation instructions will remain in effect
until further notice.
Disclosure
Commerce intends to disclose to interested parties any calculations
performed in connection with this preliminary determination within five
days of its public announcement or, if there is no public announcement,
within five days of the date of publication of this notice in
accordance with 19 CFR 351.224(b).
Verification
As provided in section 782(i)(1) of the Act, Commerce intends to
verify the information relied upon in making its final determination.
Public Comment
Case briefs and other written materials may be submitted to the
Assistant Secretary for Enforcement and Compliance no later than seven
days after the date on which the last verification report is issued in
this investigation. Rebuttal briefs, limited to issues raised in case
briefs, may be submitted no later than seven days after the deadline
date for case briefs.\10\ Pursuant to 19 CFR 351.309(c)(2) and (d)(2),
parties who submit case briefs or rebuttal briefs in this investigation
are encouraged to submit with each argument: (1) a statement of the
issue; (2) a brief summary of the argument; and (3) a table of
authorities. Note that Commerce has temporarily modified certain of its
requirements for serving documents containing business proprietary
information, until further notice.\11\
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\10\ See 19 CFR 351.309; see also 19 CFR 351.303 (for general
filing requirements).
\11\ See Temporary Rule Modifying AD/CVD Service Requirements
Due to COVID-19; Extension of Effective Period, 85 FR 41363 (July
10, 2020).
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Pursuant to 19 CFR 351.310(c), interested parties who wish to
request a hearing, limited to issues raised in the case and rebuttal
briefs, must submit a written request to the Assistant Secretary for
Enforcement and Compliance, U.S. Department of Commerce, within 30 days
after the date of publication of this notice. Requests should contain
the party's name, address, and telephone number, the number of
participants, whether any participant is a foreign national, and a list
of the issues to be discussed. If a request for a hearing is made,
Commerce intends to hold the hearing at a time and date to be
determined. Parties should confirm by telephone the date, time, and
location of the hearing two days before the scheduled date of the
hearing.
Postponement of Final Determination and Extension of Provisional
Measures
Section 735(a)(2) of the Act provides that a final determination
may be postponed until not later than 135 days after the date of the
publication of the preliminary determination in the Federal Register
if, in the event of an affirmative preliminary determination, a request
for such postponement is made by exporters who account for a
significant proportion of exports of the subject merchandise, or in the
event of a negative preliminary determination, a request for such
postponement is made by the petitioner. Section 351.210(e)(2) of
Commerce's regulations requires that a request by exporters for
postponement of the final determination be accompanied by a request for
extension of provisional measures from a four-month period to a period
not more than six months in duration.
On October 6, 2022, pursuant to 19 CFR 351.210(e), Okechamp and
Prochamp requested that Commerce postpone the final determination and
that provisional measures be extended to a period not to exceed six
months.\12\ On October 10, 2022, Giorgio Foods, Inc. (the petitioner)
requested that, pursuant to 19 CFR 351.210(e), Commerce postpone the
final determination in the event of a negative preliminary
determination.\13\ In accordance with sections 735(a)(2)(A) of the Act
and 19 CFR 351.210(b)(2)(ii), because: (1) the preliminary
determination is affirmative; (2) the requesting exporters account for
a significant proportion of exports of the subject merchandise; and (3)
no compelling reasons for denial exist, Commerce is postponing the
final determination and extending the provisional measures from a four-
month period to a period not greater than six months. Accordingly,
pursuant to section 735(a)(2) of the Act, Commerce will make its final
determination no later than 135 days after the date of publication of
this preliminary determination.
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\12\ See Okechamp's and Prochamp's Letter, ``Request to Extend
the Final Determination,'' dated October 6, 2022.
\13\ See Petitioner's Letter, ``Petitioner's Request for
Postponement of Final Determination,'' dated October 10, 2022.
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U.S. International Trade Commission Notification
In accordance with section 733(f) of the Act, Commerce will notify
the U.S. International Trade Commission (ITC) of its preliminary
determination. If the final determination is affirmative, the ITC will
determine before the later of 120 days after the date of this
preliminary determination or 45 days after the final determination
whether imports of preserved mushrooms from the Netherlands are
materially injuring, or threaten material injury to, the U.S. industry.
Notification to Interested Parties
This determination is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act, and 19 CFR 351.205(c).
[[Page 66268]]
Dated: October 27, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
Appendix I--Scope of the Investigation
The merchandise covered by this investigation is certain
preserved mushrooms, whether imported whole, sliced, diced, or as
stems and pieces. The preserved mushrooms covered under this
investigation are the genus Agaricus. ``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 heat sterilized in containers each holding a net
drained weight of not more than 12 ounces (340.2 grams), 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.
Excluded from the scope are ``marinated,'' ``acidified,'' or
``pickled'' mushrooms, which are prepared or preserved by means of
vinegar or acetic acid, but may contain oil or other additives. To
be prepared or preserved by means of vinegar or acetic acid, the
merchandise must be a minimum 0.5 percent by weight acetic acid.
The merchandise subject to this investigation is classifiable
under subheadings 2003.10.0127, 2003.10.0131, and 2003.10.0137 of
the Harmonized Tariff Schedule of the United States (HTSUS). The
subject merchandise may also be classified under HTSUS subheadings
2003.10.0143, 2003.10.0147, and 2003.10.0153. Although the HTSUS
subheadings are provided for convenience and customs purposes, the
written description of the merchandise under investigation is
dispositive.
Appendix II--List of Topics Discussed in the Preliminary Decision
Memorandum
I. Summary
II. Background
III. Period of Investigation
IV. Affiliation
V. Application of Facts Available and Use of Adverse Inference
VI. Discussion of the Methodology
VII. Currency Conversion
VIII. Recommendation
[FR Doc. 2022-23922 Filed 11-2-22; 8:45 am]
BILLING CODE 3510-DS-P
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