[Federal Register: December 31, 2003 (Volume 68, Number 250)]
[Notices]
[Page 75486-75488]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31de03-46]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-122-849]
Notice of Initiation of Antidumping Investigation: Ready-to-Cook
Kosher Chicken and Parts Thereof From Canada
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Initiation of Antidumping Investigation.
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EFFECTIVE DATE: December 31, 2003.
FOR FURTHER INFORMATION CONTACT: Magd Zalok at (202) 482-4162 or Howard
Smith at (202) 482-5193, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230.
Initiation of Investigation
The Petition
On December 1, 2003, the Department of Commerce (the Department)
received a petition against imports of ready-to-cook Kosher chicken and
parts thereof from Canada, filed in proper form by Empire Kosher
Poultry, Inc. (the petitioner). On December 9, 2003, the Department
issued a questionnaire to the petitioner requesting additional
information and clarification of certain information contained in the
petition. The Department received a response to its questionnaire on
December 11, 2003.
In accordance with section 732(b)(1) of the Tariff Act of 1930, as
amended (the Act), the petitioner alleges that imports of ready-to-cook
Kosher chicken and parts thereof from Canada are being, or are likely
to be, sold in the United States at less-than-fair-value (LTFV) within
the meaning of section 731 of the Act, and that such imports from
Canada are materially injuring, or are threatening to materially
injure, an industry in the United States.
The Department finds that the petitioner filed this petition on
behalf of the domestic industry because it is an interested party, as
defined in section 771(9)(C) of the Act, and it has demonstrated
sufficient industry support with respect to the antidumping
investigation that it is requesting the Department to initiate. See
infra, ``Determination of Industry Support for the Petition.''
Scope of Investigation
The merchandise covered by this investigation is ready-to-cook
chicken from Canada, whether fresh, chilled or frozen and whether whole
or cut-up in pieces, that has been certified as Kosher or Glatt Kosher.
Symbols indicating kosher certification include, but are not limited
to, COR, MK, OU, CRC. Ready to cook Kosher and Glatt kosher chicken is
also identified by the number of the agricultural plant in Canada from
which the product originated. For instance, ready-to-cook Kosher
chicken manufactured in plant number 24 carries the COR symbol
representing the Canadian Jewish Congress of Toronto.
Excluded from the scope of this investigation are Kosher or Glatt
Kosher chicken wings (if unattached to any other chicken part) and
offal, such as necks, gizzards, livers, and hearts. Cooked chicken or
chicken parts, ready to cook non-kosher whole chicken or chicken parts
are outside the scope of this investigation. The merchandise subject to
this investigation is classifiable under subheadings 0207.11.00.20,
0207.11.00.40, 0207.12.00.20, 0207.12.00.40, 0207.13.00.00, and
0207.14.00.40 of the Harmonized Tariff Schedule of the United States
(HTSUS).
Although the HTSUS subheadings are provided for convenience and
customs
[[Page 75487]]
purposes, our written description of the scope of this investigation is
dispositive.
As discussed in the preamble to the Department's regulations
(Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296,
27323 (May 19, 1997)), we are setting aside a period for parties to
raise issues regarding product coverage. The Department encourages all
parties to submit such comments within 20 days of publication of this
notice. Comments should be addressed to Import Administration's Central
Records Unit, Room 1870, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230. The period of scope
consultations is intended to provide the Department with ample
opportunity to consider all comments and consult with parties prior to
the issuance of the preliminary determination.
Period of Investigation
The anticipated period of investigation (POI) is October 1, 2002,
through September 30, 2003.
Determination of Industry Support for the Petition
Section 732(b)(1) of the Act requires that a petition be filed on
behalf of the domestic industry. Section 732(c)(4)(A) of the Act
provides that the Department's industry support determination, which is
to be made before the initiation of the investigation, be based on
whether a minimum percentage of the relevant industry supports the
petition. The Department shall determine that the petition has been
filed by, or on behalf of, the industry if the domestic producers or
workers who support the petition account for: (1) at least 25 percent
of the total production of the domestic like product; and (2) more than
50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for, or opposition to,
the petition. Moreover, section 732(c)(4)(D) of the Act provides that,
if the petition does not establish support of domestic producers or
workers accounting for more than 50 percent of the total production of
the domestic like product, the Department shall: i) poll the industry
or rely on other information in order to determine if there is support
for the petition, as required by subparagraph (A), or ii) determine
industry support for the petition using any statistically valid
sampling method to poll the industry.
Section 771(4)(A) of the Act defines the ``industry'' as the
producers of a domestic like product. Thus, to determine whether a
petition has the requisite industry support, the statute directs the
Department to look to producers and workers who produce the domestic
like product. The International Trade Commission (ITC), which is
responsible for determining whether ``the domestic industry'' has been
injured, must also determine what constitutes a domestic like product
in order to define the industry. While both the Department and the ITC
must apply the same statutory definition regarding the domestic like
product (section 771(10) of the Act), they do so for different purposes
and pursuant to a separate and distinct authority. In addition, the
Department's determination is subject to limitations of time and
information. Although this may result in different definitions of the
like product, such differences do not render the decision of either
agency contrary to the law.\1\
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\1\ See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (Ct.
Int'l Trade 2001), citing Algoma Steel Corp. Ltd. v. United States,
688 F. Supp. 639, 642-44 (Ct. Int'l Trade 1988) (``the ITC does not
look behind ITA's determination, but accepts ITA's determination as
to which merchandise is in the class of merchandise sold at LTFV'').
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Section 771(10) of the Act defines the domestic like product as ``a
product which is like, or in the absence of like, most similar in
characteristics and uses with, the article subject to an investigation
under this title.'' Thus, the reference point from which the domestic
like product analysis begins is ``the article subject to an
investigation,'' i.e., the class or kind of merchandise to be
investigated, which normally will be the scope as defined in the
petition.
The petitioner does not offer a definition of domestic like product
distinct from the scope of the investigation. Based on our analysis of
the information presented by the petitioner, we have determined that
there is a single domestic like product, ready-to-cook Kosher chicken
and parts thereof, which is defined in the ``Scope of Investigation''
section above, and we have analyzed industry support in terms of this
domestic like product.
The petition identifies a number of U.S. companies, in addition to
Empire Kosher Poultry, Inc., that are engaged in the production of
ready-to-cook Kosher chicken. The petition includes a letter from one
of these companies, David Elliot Poultry Farm, in which the company
states that it supports the petition. The Department received no
opposition to the petition from domestic producers of the like product.
Our review of the data provided in the petition indicates that the
petitioner has established industry support representing over 50
percent of total production of the domestic like product. Therefore,
the domestic producers or workers who support the petition account for
at least 25 percent of the total production of the domestic like
product, and the requirements of section 732(c)(4)(A)(i) of the Act are
met. Furthermore, the domestic producers or workers who support the
petition account for more than 50 percent of the production of the
domestic like product produced by that portion of the industry
expressing support for or opposition to the petition. Thus, the
requirements of section 732(c)(4)(A)(ii) of the Act also are met.
Finally, because the petition has established industry support
representing over 50 percent of total production of the domestic like
product, industry polling is unnecessary. Accordingly, the Department
determines that the petition was filed on behalf of the domestic
industry within the meaning of section 732(b)(1) of the Act. See also
Office of AD/CVD Enforcement Initiation Checklist (Initiation
Checklist), Attachment I, Industry Support section, dated December 22,
2003, on file in the Central Records Unit, Room B-099 of the main
Department of Commerce building.
Export Price and Normal Value
The following is a description of the allegation of sales at LTFV
upon which the Department based its decision to initiate this
investigation. The sources of data used to derive the deductions and
adjustments relating to U.S. price and normal value (NV) are discussed
in greater detail in the Initiation Checklist. Should the need arise to
use any of this information as facts available under section 776 of the
Act in our preliminary or final determination, we may re-examine the
information and revise the margin calculations, if appropriate.
Export Price
The petitioner alleged that the ready-to-cook Kosher chicken and
parts thereof produced in Canada by Chai Poultry Inc. (Chai Poultry)
and Marvid Poultry Inc. (Marvid) was sold to U.S. distributors prior to
importation of the merchandise into the United States. Therefore, the
petitioner based U.S. price on export price (EP). The petitioner based
EP for ready-to-cook Kosher chicken and parts thereof on price quotes
provided to U.S. distributors by Chai Poultry for whole ready-to-cook
Kosher chicken, Kosher chicken legs, and boneless skinless Kosher
chicken breasts, reduced by estimated freight charges.
[[Page 75488]]
Normal Value
The petitioner based NV on prices reflected in three invoices that
Chai Poultry issued to a Canadian distributor during the POI. These
invoices are for sales of whole Kosher chicken, Kosher chicken legs,
and boneless skinless Kosher chicken breasts. The petitioner adjusted
the invoice prices for movement charges in the home market and
differences in the costs incurred to pack merchandise for sale in the
U.S. and home markets.
The estimated dumping margins in the petition, based on a
comparison between EP and NV, range from 33.33 percent to 39.54
percent.
Fair Value Comparisons
Based on the data provided by the petitioner, there is reason to
believe that imports of ready-to-cook Kosher chicken and parts thereof
from Canada are being, or are likely to be, sold at LTFV.
Allegations and Evidence of Material Injury and Causation
The petitioner alleges that the U.S. industry producing the
domestic like product is being materially injured, or is threatened
with material injury, by reason of imports from Canada of the subject
merchandise sold at less than NV.
The petitioner contends that the industry's injured condition is
evident in the sales volume and market share lost to unfair imports, as
well as in the rapidly declining and depressed U.S. prices. The
allegations of injury and causation are supported by relevant evidence
including U.S. import data, lost sales, and pricing information. We
have assessed the allegations and supporting evidence regarding
material injury and causation, and we have determined that these
allegations are properly supported by adequate evidence and meet the
statutory requirements for initiation. See the Initiation Checklist,
Attachment II.
Initiation of Antidumping Investigation
Based upon our examination of the petition on ready-to-cook Kosher
chicken and parts thereof from Canada, we find that it meets the
requirements of section 732 of the Act. Therefore, we are initiating an
antidumping investigation to determine whether imports of ready-to-cook
Kosher chicken and parts thereof from Canada are being, or are likely
to be, sold in the United States at LTFV. Unless the deadline is
extended pursuant to section 733(b)(1)(A) of the Act, we will make our
preliminary determination no later than 140 days after the date of this
initiation.
Distribution of Copies of the Petition
In accordance with section 732(b)(3)(A) of the Act, a copy of the
public version of the petition has been made available to the
representatives of the Government of Canada. We will attempt to provide
a copy of the public version of the petition to each exporter named in
the petition, as provided for under 19 CFR Sec. 351.203(c)(2).
ITC Notification
We will notify the ITC of our initiation as required by section
732(d) of the Act.
Preliminary Determination by the ITC
The ITC will preliminarily determine no later than January 15,
2004, whether there is a reasonable indication that imports of ready-
to-cook Kosher chicken and parts thereof from Canada are causing
material injury, or threatening to cause material injury, to a U.S.
industry. A negative ITC determination will result in the investigation
being terminated; otherwise, this investigation will proceed according
to statutory and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of
the Act.
Dated: December 22, 2003.
Holly A. Kuga,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-32228 Filed 12-30-03; 8:45 am]