Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 66729 

1See 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, 

64 FR 8308 (February 19, 1999), (the ‘‘Order’’). 

States and abroad that they should cease 

dealing with the Respondents in export 

transactions involving items subject to 

the EAR. 

It is therefore ordered: 

First, that, Orion Air, S.L., Canada 

Real de Merinas, 7 Edificio 5, 3’A, 

Eissenhower business center, 28042 

Madrid, Spain, and Ad. de las Cortes 

Valencianas no 37, Esc.A Puerta 

4546015 Valencia, Spain, and when 

acting for or on its behalf, any of its 

successors, assigns, agents, or 

employees; and Syrian Pearl Airlines, 

Damascus International Airport, 

Damascus, Syria, and when acting on its 

behalf, any of its successors, assigns, 

agents, or employees (each a ‘‘Denied 

Person’’ and collectively the ‘‘Denied 

Persons’’) may not, directly or indirectly, 

participate in any way in any 

transaction involving any commodity, 

software or technology (hereinafter 

collectively referred to as ‘‘item’’) 

exported or to be exported from the 

United States that is subject to the 

Export Administration Regulations 

(‘‘EAR’’), or in any other activity subject 

to the EAR including, but not limited to: 

A. Applying for, obtaining, or using 

any license, license exception, or export 

control document; 

B. Carrying on negotiations 

concerning, or ordering, buying, 

receiving, using, selling, delivering, 

storing, disposing of, forwarding, 

transporting, financing, or otherwise 

servicing in any way, any transaction 

involving any item exported or to be 

exported from the United States that is 

subject to the EAR, or in any other 

activity subject to the EAR; or 

C. Benefitting in any way from any 

transaction involving any item exported 

or to be exported from the United States 

that is subject to the EAR, or in any 

other activity subject to the EAR. 

Second, that no person may, directly 

or indirectly, do any of the following: 

A. Export or re-export to or on behalf 

of any Denied Person any item subject 

to the EAR; 

B. Take any action that facilitates the 

acquisition or attempted acquisition by 

any Denied Person of the ownership, 

possession, or control of any item 

subject to the EAR that has been or will 

be exported from the United States, 

including financing or other support 

activities related to a transaction 

whereby any Denied Person acquires or 

attempts to acquire such ownership, 

possession or control; 

C. Take any action to acquire from or 

to facilitate the acquisition or attempted 

acquisition from any Denied Person of 

any item subject to the EAR that has 

been exported from the United States; 

D. Obtain from any Denied Person in 

the United States any item subject to the 

EAR with knowledge or reason to know 

that the item will be, or is intended to 

be, exported from the United States; or 

E. Engage in any transaction to service 

any item subject to the EAR that has 

been or will be exported from the 

United States and which is owned, 

possessed or controlled by any Denied 

Person, or service any item, of whatever 

origin, that is owned, possessed or 

controlled by any Denied Person if such 

service involves the use of any item 

subject to the EAR that has been or will 

be exported from the United States. For 

purposes of this paragraph, servicing 

means installation, maintenance, repair, 

modification or testing. 

Third, that after notice and 

opportunity for comment as provided in 

section 766.23 of the EAR, any other 

person, firm, corporation, or business 

organization related to any of the 

Respondents by affiliation, ownership, 

control, or position of responsibility in 

the conduct of trade or related services 

may also be made subject to the 

provisions of this Order. 

Fourth, that this Order does not 

prohibit any export, re-export, or other 

transaction subject to the EAR where the 

only items involved that are subject to 

the EAR are the foreign-produced direct 

product of U.S.-origin technology. 

In accordance with the provisions of 

Section 766.24(e) of the EAR, the 

Respondents may, at any time, appeal 

this Order by filing a full written 

statement in support of the appeal with 

the Office of the Administrative Law 

Judge, U.S. Coast Guard ALJ Docketing 

Center, 40 South Gay Street, Baltimore, 

Maryland 21202–4022. 

BIS may seek renewal of this Order by 

filing a written request with the 

Assistant Secretary of Commerce for 

Export Enforcement in accordance with 

the provisions of Section 766.24(d) of 

the Regulations, which currently 

provides that such a written renewal 

request must be submitted not later than 

20 days before the expiration date. The 

Respondents may oppose a request to 

renew this Order by doing so in 

accordance with Section 766.24(d), 

including filing a written submission 

with the Assistant Secretary for Export 

Enforcement, supported by appropriate 

evidence. Any opposition ordinarily 

must be received not later than seven 

days before the expiration date of the 

Order. 

Notice of the issuance of this Order 

shall be given to Respondents in 

accordance with Sections 766.5(b). This 

Order also shall be published in the 

Federal Register. 

This Order is effective upon issuance 

and shall remain in effect for 180 days. 

Issued this 22nd day of October 2010. 

David W. Mills, 

Assistant Secretary of Commerce for Export 

Enforcement. 

[FR Doc. 2010–27351 Filed 10–28–10; 8:45 am] 

BILLING CODE 3510–DT–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–570–851] 

Certain Preserved Mushrooms From 

the People’s Republic of China: 

Preliminary Results of Antidumping 

Duty New Shipper Reviews 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

DATES: Effective Date: October 29, 2010. 

SUMMARY: The Department of Commerce 

(the Department) is currently 

conducting two new shipper reviews 

(NSRs) of the antidumping duty order 

on certain preserved mushrooms from 

the People’s Republic of China (PRC) 1

covering the period of review (POR) 

February 1, 2009, through January 31, 

2010. We preliminarily determine that 

the sales made by Shandong Fengyu 

Edible Fungus Co., Ltd. (Fengyu) and by 

Zhangzhou Tongfa Foods Industry Co., 

Ltd. (Tongfa), were not made below 

normal value (NV). If these preliminary 

results are adopted in our final results 

of this review, we will instruct U.S. 

Customs and Border Protection (CBP) to 

liquidate entries of merchandise 

exported by Fengyu and Tongfa during 

the POR without regard to antidumping 

duties. 

FOR FURTHER INFORMATION CONTACT: Fred 

Baker, Scott Hoefke, or Robert James, 

AD/CVD Operations, Office 7, Import 

Administration, International Trade 

Administration, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue, NW., Washington, DC 20230; 

telephone: (202) 482–2924, (202) 482– 

4947 or (202) 482–0649, respectively. 

SUPPLEMENTARY INFORMATION: 

Background 

On February 26, 2010, pursuant to 

section 751(a)(2)(B)(i) of the Tariff Act 

of 1930, as amended (the ‘‘Act’’), and 19 

CFR 351.214(c), the Department 

received NSR requests from Fengyu and 

Tongfa. The Department determined 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

66730 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 

2On June 19, 2000, the Department affirmed that 

‘‘marinated,’’ ‘‘acidified,’’ or ‘‘pickled’’ mushrooms 

containing less than 0.5 percent acetic acid are 

within the scope of the antidumping duty order. 

See Recommendation Memorandum-Final Ruling of 

Request by Tak Fat, et al. for Exclusion of Certain 

Marinated, Acidified Mushrooms from the Scope of 

the Antidumping Duty Order on Certain Preserved 

Mushrooms from the People’s Republic of China,’’ 

dated June 19, 2000. On February 9, 2005, the 

United States Court of Appeals for the Federal 

Circuit upheld this decision. See Tak Fat v. United 

States, 396 F.3d 1378 (Fed. Cir. 2005). 

that both of these requests had not been 

properly filed due to bracketing issues, 

and therefore returned them on March 

19, 2008. On March 23, 2010, both 

companies resubmitted their requests. 

They both certified that they are the 

producers and exporters of the subject 

merchandise upon which the requests 

were based. 

On March 31, 2010, the Department 

initiated antidumping duty NSRs on 

certain preserved mushrooms from the 

PRC covering the two companies. See 

Certain Preserved Mushrooms from the 

People’s Republic of China: Notice of 

Initiation of Antidumping Duty New 

Shipper Reviews, 75 FR 16075 (March 

31, 2010) (Initiation Notice). 

On April 5, 2010, the Department 

issued its standard antidumping 

questionnaire to both Fengyu and 

Tongfa. Between April 2010 and June 

2010, Fengyu and Tongfa submitted 

responses to the original sections A, C, 

and D questionnaires and supplemental 

sections A, C, and D questionnaires. 

On July 13, 2010, the Department sent 

interested parties a letter requesting 

comments on surrogate country 

selection and information pertaining to 

valuing factors of production (FOP) in a 

surrogate market economy country. No 

party submitted surrogate country or 

surrogate value data. 

Scope of the Order 

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 Agaricus 

bisporus and Agaricus bitorquis. 

‘‘Certain Preserved Mushrooms’’ refers 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. 

Certain preserved mushrooms may be 

imported whole, sliced, diced, or as 

stems and pieces. Included within the 

scope of this order are ‘‘brined’’ 

mushrooms, which are presalted and 

packed in a heavy salt solution to 

provisionally preserve them for further 

processing.2

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. 

Non-Market Economy Country Status 

In every case conducted by the 

Department involving the PRC, we have 

treated the PRC as a non-market 

economy (NME) country. See, e.g., Pure 

Magnesium from the People’s Republic 

of China: Final Results of Antidumping 

Duty Administrative Review, 73 FR 

76336 (December 16, 2008); and 

Frontseating Service Valves from the 

People’s Republic of China: Final 

Determination of Sales at Less Than 

Fair Value and Final Negative 

Determination of Critical 

Circumstances, 74 FR 10886 (March 12, 

2009). In accordance with section 

771(18)(C)(i) of the Act, any 

determination that a foreign country is 

an NME country shall remain in effect 

until revoked by the administering 

authority. See, e.g., Brake Rotors From 

the People’s Republic of China: Final 

Results and Partial Rescission of the 

2004/2005 Administrative Review and 

Notice of Rescission of 2004/2005 New 

Shipper Review, 71 FR 66304 

(November 14, 2006). None of the 

parties to this proceeding have 

contested such treatment. Accordingly, 

we calculated normal value (NV) in 

accordance with section 773(c) of the 

Act, which applies to NME countries. 

Separate Rates Determination 

A designation of a country as an NME 

remains in effect until it is revoked by 

the Department. See section 771(18)(C) 

of the Act. Accordingly, there is a 

rebuttable presumption that all 

companies within the PRC are subject to 

government control, and thus should be 

assessed a single antidumping duty rate. 

It is the Department’s policy to assign 

all exporters of the merchandise subject 

to review in NME countries a single rate 

unless an exporter can affirmatively 

demonstrate an absence of government 

control, both in law (de jure) and in fact 

(de facto), with respect to exports. To 

establish whether a company is 

sufficiently independent to be entitled 

to a separate, company-specific rate, the 

Department analyzes each exporting 

entity in an NME country under the test 

established in the Final Determination 

of Sales at Less than Fair Value: 

Sparklers from the People’s Republic of 

China, 56 FR 20588 (May 6, 1991), 

(Sparklers) as amplified by the Notice 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 

The Department considers the 

following de jure criteria in determining 

whether an individual company may be 

granted a separate rate: (1) An absence 

of restrictive stipulations associated 

with the individual exporter’s business 

and export licenses; (2) any legislative 

enactments decentralizing control of 

companies; and (3) any other formal 

measures by the government 

decentralizing control of companies. See 

Sparklers, 56 FR at 20589. In this NSR, 

Fengyu and Tongfa submitted complete 

responses to the separate rates section of 

the Department’s questionnaire. The 

evidence submitted by Fengyu and 

Tongfa includes government laws and 

regulations on corporate ownership and 

control (i.e., the Company Law and the 

Foreign Trade Law of the People’s 

Republic of China), these companies’ 

individual business licenses, and 

narrative information regarding the 

companies’ operations and selection of 

management. The evidence provided by 

Fengyu and Tongfa supports a 

preliminary finding of a de jure absence 

of government control over its export 

activities based on the record: (1) There 

are no controls on exports of subject 

merchandise, such as quotas applied to, 

or licenses required for, exports of the 

subject merchandise to the United 

States; (2) the government of the PRC 

has passed legislation decentralizing 

control of companies; and (3) there are 

other formal measures by the 

government decentralizing control of 

companies. See Fengyu’s March 23, 

2010, submission at appendix 2 and 

April 30, 2010, submission at 3 and 

Tongfa’s March 18, 2010, submission at 

appendix 1 and April 30, 2010, 

submission at 3. 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 66731 

3For more detailed discussion of this issue, 

please see Memoranda to Richard Weible, Office 

Director, ‘‘Bona Fide Sales Analysis for Shandong 

Fengyu Edible Fungus Co., Ltd.’’ and ‘‘Bona Fide 

Sales Analysis for Zhangzhou Tongfa Foods 

Industry Co., Ltd.’’ both dated September 22, 2010. 

4See Memorandum from Carole Showers, Acting 

Director, Office of Policy, to Richard Weible, 

Director, Office 7; Subject: Request for a List of 

Surrogate Countries for a 2010 New Shipper Review 

of the Antidumping Duty Order on Certain 

Preserved Mushrooms from the People’s Republic 

of China, dated June 25, 2010. The Department 

notes that these six countries are part of a nonexhaustive list of countries that are at a level of 

economic development comparable to the PRC. See 

the Department’s letter to ‘‘All Interested Parties; 

First Administrative Review of Steel Wire Garment 

Hangers from the People’s Republic of China: 

Deadlines for Surrogate Country and Surrogate 

Value Comments,’’ dated March 25, 2010 at 1 and 

Attachment I (‘‘Surrogate Country List’’). 

Absence of De Facto Control 

The absence of de facto government 

control over exports is based on whether 

the company: (1) Sets its own export 

prices independent of the government 

and without the approval of a 

government authority; (2) retains the 

proceeds from its export sales and 

makes independent decisions regarding 

the disposition of profits or financing of 

losses; (3) has the authority to negotiate 

and sign contracts and other 

agreements; (4) has autonomy from the 

government regarding the selection of 

management; and (5). See Silicon 

Carbide, 59 FR at 22587; Sparklers, 56 

FR at 20589; and Final Determination of 

Sales at Less Than Fair Value: Furfuryl 

Alcohol From the People’s Republic of 

China, 60 FR 22544, 22545 (May 8, 

1995). 

In its April 30, 2010, submission, 

Fengyu submitted evidence 

demonstrating an absence of de facto 

government control over its export 

activities. Specifically, this evidence 

indicates that: (1) The company sets its 

own export prices independent of the 

government and without the approval of 

a government authority; (2) the 

company retains the proceeds from its 

sales and makes independent decisions 

regarding the disposition of profits or 

financing of losses; (3) the company has 

a general manager with the authority to 

negotiate and bind the company in an 

agreement; 

(4) the general manager is selected by 

the owner; (5) the general manager 

appoints the manager of each 

department; and (6) there are no 

restrictions on the company’s use of 

export revenues. Therefore, we 

preliminarily find that Fengyu has 

established that it qualifies for a 

separate rate under the criteria 

established by Silicon Carbide and 

Sparklers. 

Similarly, in its April 30, 2010, 

submission, Tongfa also submitted 

evidence demonstrating an absence of 

de facto government control over its 

export activities. Specifically, this 

evidence indicates that: (1) The 

company sets its own export prices 

independent of the government and 

without the approval of a government 

authority; (2) the company retains the 

proceeds from its sales and makes 

independent decisions regarding the 

disposition of profits or financing of 

losses; (3) the company has a general 

manager with authority to negotiate and 

bind the company in an agreement; (4) 

company’s board of directors appoints 

the general manager, who appoints the 

senior managers; and (5) there are no 

restrictions on the company’s use of 

export revenues. Therefore, we 

preliminarily find that Tongfa has 

established that it qualifies for a 

separate rate under the criteria 

established by Silicon Carbide and 

Sparklers. 

Bona Fide Analysis 

Consistent with the Department’s 

practice, we investigated the bona fide 

nature of the sales made by Fengyu and 

Tongfa for these NSRs. In evaluating 

whether a single sale in a NSR is 

commercially reasonable, and therefore 

bona fide, the Department considers, 

inter alia, such factors as: (1) Timing of 

the sales; (2) price and quantity; (3) the 

expenses arising from the transaction; 

(4) whether the goods were sold at a 

profit; and (5) whether the transaction 

was made on an arms-length basis. See 

Tianjin Tiancheng Pharmaceutical Co. 

v. the United States, 366 F. Supp. 2d 

1246, 1250 (CIT 2005). Accordingly, the 

Department considers a number of 

factors in its bona fide analysis, ‘‘all of 

which may be specific to the 

commercial realities surrounding an 

alleged sale of subject merchandise.’’ 

See Hebei New Donghua Amino Acid 

Co. v. the United States, 374 F. Supp. 

2d 1333, 1342 (CIT 2005). In examining 

Tongfa’s sales in relation to these 

factors, the Department observed no 

evidence that would indicate that this 

sale was not bona fide. With respect to 

Fengyu, there remain some unresolved 

discrepancies regarding the Customs 

Form 7501 that it submitted to the 

record. We will continue to investigate 

these discrepancies and issue a final 

bona fides determination along with the 

final results of this review. 

Nevertheless, for purposes of these 

preliminary results, we find the new 

shipper sales by Tongfa and Fengyu 

were made on a bona fide basis. See 

Memorandum to Richard Weible 

through Robert James, Program 

Manager, Important Administration 

from Scott Hoefke, International Trade 

Compliance Analyst, Import 

Administration: Bona Fide Sales 

Analysis of Shangdong Fengyu Edible 

Fungus Co., Ltd. (Fengyu) in the 

Antidumping Duty New Shipper 

Review of Certain Preserved Mushrooms 

from the People’s Republic of China, 

dated September 22, 2010; and 

Memorandum to Richard Weible 

through Robert James, Program 

Manager, Important Administration 

from Fred Baker, International Trade 

Compliance Analyst, Import 

Administration: Bona Fide Sales 

Analysis of Zhangzhou Tongfa Foods 

Industry Co., Ltd. (Tongfa) in the 

Antidumping Duty New Shipper 

Review of Certain Preserved Mushrooms 

from the People’s Republic of China, 

dated September 22, 2010. 

Based on our investigation into the 

bona fide nature of the sales and the 

questionnaire responses submitted by 

Fengyu and Tongfa, as well as the 

companies’ eligibility for separate rates 

(see ‘‘Separate Rates Determination’’ 

section (above)), we preliminarily 

determine that Fengyu and Tongfa have 

met the requirements to qualify as new 

shippers during this POR. Therefore, for 

purposes of these preliminary results of 

review, we are treating Fengyu’s and 

Tongfa’s sales of subject merchandise to 

the United States as appropriate 

transactions for these NSRs.3

Surrogate Country 

When the Department is investigating 

imports from an NME country, section 

773(c)(1) of the 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 

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: (1) At a level of economic 

development comparable to that of the 

NME country; and (2) significant 

producers of comparable merchandise. 

The Department determined that 

India, Philippines, Indonesia, Thailand, 

Ukraine, and Peru are countries 

comparable to the PRC in terms of 

economic development.4 Moreover, it is 

the Department’s practice to select an 

appropriate surrogate country based on 

the availability and reliability of data 

from the countries. See Department 

Policy Bulletin No. 04.1: Non-Market 

Economy Surrogate Country Selection 

Process (March 1, 2004) (Surrogate 

Country Policy Bulletin). In the most 

recently completed proceeding 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

66732 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 

involving the Order, we determined that 

India is comparable to the PRC in terms 

of economic development and has 

surrogate value data that are available 

and reliable. See Certain Preserved 

Mushrooms From the People’s Republic 

of China: Final Results of Antidumping 

Duty New Shipper Review, 74 FR 65520, 

(December 10, 2009). In the current 

proceeding, we received no comments 

regarding surrogate country selection. 

Since no information has been provided 

in these NSRs indicating that the 

Department should deviate from its 

selection of India in the most recently 

completed administrative review of the 

Order, we continue to find that India is 

the appropriate surrogate country. 

Specifically, we have selected India 

because it is at a level of economic 

development similar to the PRC, it is a 

significant producer of comparable 

merchandise, and we have reliable, 

publicly available data from India 

representing broad-market average. See 

773(c)(4) of the Act; See also 

Memorandum to the File, through 

Richard Weible, Office Director, and 

Robert James, Program Manager, from 

Fred Baker, Analyst, Subject: 

Antidumping Duty New Shipper 

Review of Certain Preserved Mushrooms 

from the People’s Republic of China: 

Selection of a Surrogate Country, dated 

September 22, 2010. 

In accordance with 19 CFR 

351.301(c)(3)(ii), for the final results in 

a NSR, interested parties may submit 

publicly available information to value 

FOPs within 20 days after the date of 

publication of these preliminary results. 

U.S. Price 

In accordance with section 772(a) of 

the Act, we based Fengyu’s and Tongfa’s 

U.S. prices on export prices (EP), 

because their first sales to an 

unaffiliated purchaser were made before 

the date of importation and the use of 

constructed export price was not 

otherwise warranted by the facts on the 

record. As appropriate, we deducted 

foreign inland freight and foreign 

brokerage and handling from the 

starting price (or gross unit price), in 

accordance with section 772(c)(2) of the 

Act. These services were provided by 

NME vendors for both Fengyu’s and 

Tongfa’s U.S. sales. Therefore, we based 

the deduction of these movement 

charges on surrogate values. 

For both Fengyu and Tongfa, we 

valued foreign inland freight (which 

consisted of truck freight) using a perunit, period of review wide, average rate 

calculated from Indian data on the 

following Web site: http:// 

www.infobanc.com/logistics/ 

logtruck.htm. The logistics section of 

this Web site contains inland freight 

truck rates between many large Indian 

cities. See Memoranda to the File, ‘‘New 

Shipper Review of Certain Preserved 

Mushroom from the People’s Republic 

of China: Surrogate Values for the 

Preliminary Results’’ (Fengyu Surrogate 

Values Memorandum) at Exhibit 7, and 

‘‘New Shipper Review of Certain 

Preserved Mushroom from the People’s 

Republic of China: Surrogate Values for 

the Preliminary Results’’ (Tongfa 

Surrogate Values Memorandum) at 

Exhibit 7. 

We valued foreign brokerage and 

handling using the publicly summarized 

brokerage and handling expense 

reported in the U.S. sales listing of 

Indian mushroom producer, Agro Dutch 

Industries, Ltd. (Agro Dutch), in the 

2004–2005 administrative review of 

Certain Preserved Mushrooms from 

India, which we then inflated to be 

contemporaneous with the POR. See 

Fengyu Surrogate Values Memorandum 

at Exhibit 8; and Tongfa Surrogate 

Values Memorandum at Exhibit 8. 

In their section A responses, both 

Fengyu and Tongfa stated that they 

intended to use the invoice date as the 

date of sale, stating that this was the 

date that best represented when the 

terms of sale are fixed. See Fengyu’s 

April 30, 2010, submission at 12; and 

Tongfa’s April 30, 2010, submission at 

12–13. However, both Fengyu and 

Tongfa in their supplemental 

questionnaire submissions stated that 

they had no instances of quantity or 

price changes after the receipt of 

purchase order. See Fengyu’s June 30, 

2010, submission at 3; and Tongfa’s 

June 30, 2010, submission at 2. 

Therefore, we used the contract date as 

the date of sale for both Fengyu and 

Tongfa because there were no changes 

to either the prices or quantities of 

either companies’ sales after this date, 

and there is no record evidence that the 

material terms of sale changed in 

anyway following the contract date for 

any of Fengyu’s and Tongfa’s other sales 

during the POR. The Department 

concludes that the contract date is 

therefore the date that best represents 

when Fengyu and Tongfa established 

the material terms of sale. See 19 CFR 

351.401(i). 

1. Methodology 

Section 773(c)(1)(B) of the Act 

provides that the Department shall 

determine the NV using an FOP 

methodology if the merchandise under 

review 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 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. See, e.g., Tapered Roller 

Bearings and Parts Thereof, Finished or 

Unfinished, From the People’s Republic 

of China: Preliminary Results of 

Antidumping Duty Administrative 

Review and Notice of Intent to Rescind 

in Part, 70 FR 39744 (July 11, 2005), 

unchanged in Tapered Roller Bearings 

and Parts Thereof, Finished and 

Unfinished, from the People’s Republic 

of China: Final Results of 2003–2004 

Administrative Review and Partial 

Rescission of Review, 71 FR 2517 

(January 17, 2006). 

In past cases, it has been the 

Department’s practice to value various 

FOPs using import statistics of the 

primary selected surrogate country from 

World Trade Atlas (WTA), as published 

by Global Trade Information Services 

(GTIS). See Certain Preserved 

Mushrooms from the People’s Republic 

of China: Preliminary Results of 

Antidumping Duty New Shipper Review, 

74 FR 50946, 50950 (October 2, 2009). 

However, in October 2009, the 

Department learned that the data 

reported in the Global Trade Atlas 

(GTA) software, published by GTIS, is 

reported to the nearest digit and thus 

there is not a loss of data by rounding, 

as there is with the data reported by the 

WTA software. Consequently, the 

Department will now obtain import 

statistics from GTA for valuing various 

FOPs. 

2. Selection of Surrogate Values 

In selecting the ‘‘best available 

information for surrogate values,’’ see 

Section 773(c)(1) of the Act, consistent 

with the Department’s practice, we 

considered whether the information 

was: Publicly available; productspecific; representative of broad market 

average prices; contemporaneous with 

the POR; and free of taxes. See, e.g., 

Notice of Preliminary Determination of 

Sales at Less Than Fair Value, Negative 

Preliminary Determination of Critical 

Circumstances and Postponement of 

Final Determination: Certain Frozen 

and Canned Warmwater Shrimp From 

the Socialist Republic of Vietnam, 69 FR 

42672, 42682 (July 16, 2004), unchanged 

in Final Determination of Sales at Less 

Than Fair Value: Certain Frozen and 

Canned Warmwater Shrimp From the 

Socialist Republic of Vietnam, 69 FR 

71005 (December 8, 2004). Where we 

could obtain only surrogate values that 

were not contemporaneous with the 

POR consistent with our practice, we 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 66733 

5See, e.g., Expedited Sunset Review of the 

Countervailing Duty Order on Certain Cut-to-Length 

Carbon Quality Steel Plate from Indonesia, 70 FR 

45692 (August 8, 2005) and accompanying Issues 

and Decision Memorandum at page 4; CorrosionResistant Carbon Steel Flat Products from the 

Republic of Korea: Final Results of Countervailing 

Duty Administrative Review, 74 FR 2512 (January 

15, 2009) and accompanying Issues and Decision 

Memorandum at Comment 1, pages 17, 19–20; and 

Certain Hot-Rolled Carbon Steel Flat Products from 

Thailand: Final Results of Countervailing Duty 

Determination, 66 FR 50410 (October 3, 2001) and 

accompanying Issues and Decision Memorandum at 

Comment 1. 

inflated the surrogate values using, 

where appropriate, the Indian WPI as 

published in International Financial 

Statistics by the International Monetary 

Fund. See e.g., Certain Preserved 

Mushrooms From the People’s Republic 

of China: Final Results of Antidumping 

Duty New Shipper Review, 74 FR 65520 

(December 10, 2009). See Fengyu 

Surrogate Values Memorandum at 

Exhibit 2 and Tongfa Surrogate Values 

Memorandum at Exhibit 2. 

In accordance with the legislative 

history of the Omnibus Trade and 

Competitiveness Act of 1988, see Conf. 

Report to Accompany H.R. 3, H.R. Rep. 

No. 576, 100th Cong., 2nd Sess. (1988) 

(OTCA 1988) at 590, the Department 

continues to apply its long-standing 

practice of disregarding surrogate values 

if it has a reason to believe or suspect 

the source data may be subsidized. In 

this regard, the Department has 

previously found that it is appropriate 

to disregard such prices from Indonesia, 

South Korea and Thailand because we 

have determined that these countries 

maintain broadly available, nonindustry specific export subsidies. 

Based on the existence of these subsidy 

programs that were generally available 

to all exporters and producers in these 

countries at the time of the POR, the 

Department finds that it is reasonable to 

infer that all exporters from Indonesia, 

South Korea and Thailand may have 

benefitted from these subsidies.5

Additionally, we disregarded prices 

from NME countries. Finally, imports 

that were labeled as originating from an 

‘‘unspecified’’ country were excluded 

from the average value, because the 

Department could not be certain that 

they were not from either an NME 

country or a country with general export 

subsidies. See Certain Non-Frozen 

Apple Juice Concentrate from the 

People’s Republic of China: Notice of 

Preliminary Results of the New Shipper 

Review, 75 FR 47270 (August 5, 2010) 

and Drill Pipe From the People’s 

Republic of China: Preliminary 

Determination of Sales at Less Than 

Fair Value and Affirmative 

Determination of Critical 

Circumstances, and Postponement of 

Final Determination, 75 FR 51004 

(August 18, 2010). 

In accordance with section 773(c) of 

the Act, we calculated NV by adding the 

value of the FOPs, general expenses, 

profit, and packing costs reported by 

Fengyu and Tongfa. 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 Fengyu and 

Tongfa 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 derived 

from the Indian surrogate values 

selected for their NSRs. 

To calculate NV, we multiplied the 

reported per-unit factor-consumption 

rates by publicly available Indian 

surrogate values. As appropriate we 

added freight costs to the surrogate 

values that we calculated for Fengyu’s 

and Tongfa’s material inputs to make 

these prices delivered prices. We 

calculated these 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 

Fengyu and Tongfa. This adjustment is 

in accordance with the decision by the 

Court of Appeals for the Federal Circuit 

in Sigma Corp. v. United States, 117 

F.3d 1401, 1407–1408 (Fed. Cir. 1997). 

We increased the calculated costs of the 

FOPs for surrogate general expenses and 

profit. See Fengyu Surrogate Values 

Memorandum at Exhibit 9 and Tongfa 

Surrogate Values Memorandum at 

Exhibit 9. 

Indian surrogate values were 

denominated in Rupees and were 

converted to USD using the applicable 

average exchange rate based on 

exchange rate data from the 

Department’s Web site. For further 

details regarding the surrogate values 

used for these preliminary results, see 

Fengyu’s Surrogate Value Memo and 

Tongfa’s Surrogate Value Memo. 

On May 14, 2010, the Court of 

Appeals for the Federal Circuit 

(‘‘CAFC’’) in Dorbest Ltd. v. United 

States, 604 F.3d 1363, 1372 (CAFC 

2010) (‘‘Dorbest IV’’), found that the 

‘‘{regression-based} method for 

calculating wage rates {as stipulated by 

19 CFR 351.408(c)(3)} uses data not 

permitted by {the statutory 

requirements laid out in section 773 of 

the Act (i.e., 19 U.S.C. 1677b(c))}.’’ The 

Department is continuing to evaluate 

options for determining labor values in 

light of the recent CAFC decision. 

However, for these preliminary results, 

we have calculated an hourly wage rate 

to use in valuing respondents’ reported 

labor input by averaging industryspecific earnings and/or wages in 

countries that are economically 

comparable to the PRC and that are 

significant producers of comparable 

merchandise. 

For the preliminary results of this 

administrative review, the Department 

is valuing labor using a simple average 

industry-specific wage rate using 

earnings or wage data reported under 

Chapter 5B by the International Labor 

Organization (‘‘ILO’’). To achieve an 

industry-specific labor value, we relied 

on industry-specific labor data from the 

countries we determined to be both 

economically comparable to the PRC, 

and significant producers of comparable 

merchandise. A full description of the 

industry-specific wage rate calculation 

methodology is provided in the Prelim 

Surrogate Value Memo. The Department 

calculated a simple average industryspecific wage rate of $1.36 for these 

preliminary results. Specifically, for this 

review, the Department has calculated 

the wage rate using a simple average of 

the data provided to the ILO under SubClassification 15 of the ISIC-Revision 3 

standard by countries determined to be 

both economically comparable to the 

PRC and significant producers of 

comparable merchandise. The 

Department finds the two-digit 

description under ISIC-Revision 3 

(‘‘Manufacture of Food Products and 

Beverages’’) to be the best available wage 

rate surrogate value on the record 

because it is specific and derived from 

industries that produce merchandise 

comparable to the subject merchandise. 

Consequently, we averaged the ILO 

industry-specific wage rate data or 

earnings data available from the 

following countries found to be 

economically comparable to the PRC 

and are significant producers of 

comparable merchandise: Ecuador, 

Egypt, Indonesia, Jordan, Peru, 

Philippines, Thailand, and Ukraine. For 

further information on the calculation of 

the wage rate, see Prelim Surrogate 

Values Memo. 

Preliminary Results of the Review 

The Department has determined that 

the following preliminary dumping 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES

66734 Federal Register / Vol. 75, No. 209 / Friday, October 29, 2010 / Notices 

margins exist for the period February 1, 

2009 through January 31, 2010: 

CERTAIN PRESERVED MUSHROOMS

FROM THE PRC 

Manufacturer/exporter 

Weightedaverage margin 

(percent) 

Fengyu ............................ 0.00 

Tongfa ............................. 0.00 

Public Comment 

The Department will disclose to 

parties to this proceeding the 

calculations performed in reaching the 

preliminary results within five days of 

the date of publication of these 

preliminary results. See 19 CFR 

351.224(b). 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. 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 

limited to issues raised in the case 

briefs. Parties who submit arguments are 

requested to submit with the argument: 

(1) A statement of the issue; (2) a brief 

summary of the argument; and (3) a 

table of authorities. Further, the 

Department requests that parties 

submitting written comments provide 

the Department with a diskette 

containing the public version of those 

comments. 

Any interested party may request a 

hearing within 30 days of publication of 

this notice. See 19 CFR 351.310(c). 

Interested parties who wish to request a 

hearing or to participate if one is 

requested, must submit a written 

request to the Assistant Secretary for 

Import Administration within 30 days 

of publication of this notice. Requests 

should contain: (1) The party’s name, 

address, and telephone number; (2) the 

number of participants; and (3) a list of 

issues to be discussed. See 19 CFR 

351.310(c). Issues raised in the hearing 

will be limited to those raised in the 

briefs. 

Unless the deadline is extended 

pursuant to section 751(a)(2)(B)(iv) of 

the Act, the Department will issue the 

final results of these NSRs, including 

the results of our analysis of the issues 

raised by the parties in their comments, 

within 90 days after issuance of these 

preliminary results. 

Deadline for Submission of Publicly 

Available Surrogate Value Information 

In accordance with 19 CFR 

351.301(c)(3), the deadline for 

submission of publicly available 

information to value factors of 

production under 19 CFR 351.408(c) is 

20 days after the date of publication of 

the preliminary determination. In 

accordance with 19 CFR 351.301(c)(1), if 

an interested party submits factual 

information less than ten days before, 

on, or after (if the Department has 

extended the deadline) the applicable 

deadline for submission of such factual 

information, an interested party has ten 

days to submit factual information to 

rebut, clarify, or correct the factual 

information no later than ten days after 

such factual information is served on 

the interested party. However, the 

Department notes that 19 CFR 

351.301(c)(1) permits new information 

only insofar as it rebuts, clarifies, or 

corrects information recently placed on 

the record. See, e.g., Glycine from the 

People’s Republic of China: Final 

Results of Antidumping Duty 

Administrative Review and Final 

Rescission, in Part, 72 FR 58809 

(October 17, 2007) and accompanying 

Issues and Decision Memorandum at 

Comment 2. Furthermore, the 

Department generally will not accept 

business proprietary information in 

either the surrogate value submissions 

or the rebuttals thereto, as the regulation 

regarding the submission of surrogate 

values allows only for the submission of 

publicly available information. 

Assessment Rates 

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 ad valorem duty 

assessment rates based on the ratio of 

the total amount of the dumping 

margins calculated for the examined 

sales to the total entered value of those 

same sales. 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. However, the final results of 

this review shall be the basis for the 

assessment of antidumping duties on 

entries of merchandise covered by the 

final results of these reviews and for 

future deposits of estimated duties, 

where applicable. 

Cash Deposit Requirements 

The following cash deposit 

requirements, when imposed, will be 

effective upon publication of the final 

results of these NSRs for all shipments 

of subject merchandise exported by 

Fengyu or Tongfa and entered, or 

withdrawn from warehouse, for 

consumption on or after the publication 

date, as provided by section 751(a)(2)(C) 

of the Act: (1) For subject merchandise 

manufactured and exported by Fengyu 

or manufactured and exported by 

Tongfa, the cash-deposit rate will be 

that established in the final results of 

this review; (2) for subject merchandise 

exported by Fengyu or Tongfa but not 

manufactured by Fengyu or Tongfa, 

respectively, the cash deposit rate will 

continue to be the PRC-wide rate (i.e., 

198.63 percent); and (3) for subject 

merchandise manufactured by Fengyu 

or Tongfa, but exported by any other 

party, the cash deposit rate will be the 

rate applicable to the exporter. If the 

cash deposit rates calculated for Fengyu 

or Tongfa in the final results is zero or 

de minimis:, a zero cash deposit will be 

required for entries of subject 

merchandise both produced and 

exported by Fengyu or Tongfa. These 

cash deposit requirements, when 

imposed, shall remain in effect until 

further notice. 

Notification to Importers 

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. 

These NSRs and notice are in 

accordance with sections 751(a)(2)(B) 

and 777(i) of the Act and 19 CFR 

351.214(i). 

Dated: October 22, 2010. 

Ronald Lorentzen, 

Deputy Assistant Secretary for Import 

Administration. 

[FR Doc. 2010–27427 Filed 10–28–10; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

National Institute of Standards and 

Technology 

[Docket No.: 101006483–0483–02] 

Proposed Voluntary Product Standard 

PS 2–10, Structural Plywood 

AGENCY: National Institute of Standards 

and Technology, Commerce. 

WReier-Aviles on DSKGBLS3C1PROD with NOTICES