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Notice

Fresh Garlic from the People's Republic of China: Final Results and Final Rescission, In Part, of New Shipper Reviews

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (Department) is conducting the new shipper reviews (NSRs) of the antidumping duty order on fresh garlic from the People's Republic of China (PRC) covering the periods of review (PORs) of November 1, 2007 through April 30, 2008 and November 1, 2007 through June 9, 2008.1 As discussed below, we determine that sales have been made in the United States at prices below normal value (NV) with respect to two exporters who participated fully and have demonstrated their eligibility for separate rates in the NSR: Chengwu County Yuanxiang Industry & Commerce, Ltd. (Yuanxiang) and Jinxiang Hejia Co., Ltd. (Hejia). In the preliminary results of this review, we found Yuanxiang's and Hejia's POR sales were made on a bona fide basis. See Fresh Garlic From the People's Republic of China: Preliminary Results of New Shipper Reviews, 74 FR 20452 (May 4, 2009) (Preliminary Results). We are continuing to find Yuanxiang's and Hejia's sales to be bona fide for the final results of this review. In addition, we are rescinding the NSRs for four companies: Weifang Chenglong Import & Export Co., Ltd. (Chenglong), Jinxiang Tianheng Trade Co., Ltd. (Tianheng), Jinxiang Zhengyang Import & Export Co., Ltd. (Zhengyang), and Juye Homestead Fruits and Vegetables Co., Ltd. (Juye). We intend to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on entries of subject merchandise during the POR for which importer-specific assessment rates are above de minimis.

EFFECTIVE DATE:

October 2, 2009.

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FOR FURTHER INFORMATION CONTACT:

Toni Page, Scott Lindsay, or Summer Avery, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-1398, (202) 482-0780, or (202) 482-4052, respectively.

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SUPPLEMENTARY INFORMATION:

Background

On May 4, 2009, the Department published in the Federal Register the preliminary results of the NSRs of the antidumping duty order on fresh garlic from the PRC. See Preliminary Results. Since the Preliminary Results, the following events have occurred.

Hejia filed surrogate value (SV) information for its single-clove garlic on May 19, 2009. On May 22, 2009, we extended the deadline for all interested parties to submit publicly available information to value factors of production until June 9, 2009. Chenglong and Tianheng filed SV information on June 9, 2009. On June 19, 2009, Fresh Garlic Producers Association (FGPA) and its individual members (Christopher Ranch L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company, Inc.) (collectively, Petitioners), filed factual information intended to rebut SV information filed by Chenglong and Tianheng.

On May 27, 2009, the Department issued a supplemental questionnaire to Shandong Zhengyang with a due date of June 10, 2009. On June 4, 2009, counsel for Zhengyang notified the Department that it was withdrawing its representation of the company and advised the Department to contact Zhengyang directly. On June 12, 2009, the Department sent a letter to Zhengyang stating that we had not received its supplemental questionnaire response and that we had canceled verification. Zhengyang did not respond to the Department's letter.

On May 27, 2009, the Department sent a supplemental questionnaire to Hejia. The Department received Hejia's timely response on June 2, 2009. On June 2, 2009, the Department was notified by Juye that it was withdrawing from the NSR.

On June 4, 2009, we extended the time limit for the completion of the final results of these reviews. See Fresh Garlic From the People's Republic of China: Extension of Time Limit for the Final Results of New Shipper Reviews, 74 FR 26839 (June 4, 2009).

The Department conducted verification of the NSR respondents Chenglong, Hejia, and Yuanxiang from June 22, 2009 through June 30, 2009. On July 30 and 31, 2009, the Department issued its verification reports.

On July 30, 2009, the Department preliminarily found Tianheng's sale to be not bona fide. See Memorandum From Barbara E. Tillman, Office Director, Office 6, Re: Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China (“PRC”): Amended Intent to Preliminarily Rescind Jinxiang Tianheng Trade Co.'s New Shipper Review, July 30, 2009 (Amended Memorandum). We continue to find Tianheng's sale to be not bona fide for these final results.

In response to requests filed by Petitioners and the NSR respondents, the Department extended the due date for case briefs until August 17, 2009. The Department received timely filed case briefs from Petitioners, Hejia, Yuanxiang, Chenglong, and Tianheng. On August 21, 2009, the Department advised Hejia and Tianheng that each company's brief contained new factual information and instructed both Hejia and Tianheng to re-file their case briefs. Hejia and Tianheng complied with the Department's request and re-filed their case briefs on August 28, 2009 and September 9, 2009, respectively. In response to requests filed by Petitioners and the NSR respondents, the Department extended the deadline for rebuttal briefs to August 24, 2009, for arguments regarding everything except Hejia-related issues, and to August 28, 2009, for Hejia-specific matters. The Department received timely filed rebuttal briefs from all interested parties on August 24 and 28, 2009.

Scope of the Order

The products covered by this Order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay. The scope of this order does not include the following: (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed. The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, Start Printed Page 509530710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. In order to be excluded from the Order, garlic entered under the HTSUS subheadings listed above that is (1) mechanically harvested and primarily, but not exclusively, destined for non-fresh use or (2) specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed must be accompanied by declarations to CBP to that effect.

Analysis of Comments Received

Issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in Appendix 1 to this notice and addressed in the Memorandum from John Anderson, Acting Deputy Assistant Secretary for Import Administration Re: Fresh Garlic from the People's Republic of China: Issues and Decision Memorandum for the Final Results of the New Shipper Reviews and Rescission, In Part, of the New Shipper Reviews (Issues and Decision Memorandum), September 24, 2009, which is hereby adopted by this notice.2 Parties can find a complete discussion of the issues raised in these NSRs and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit (CRU), Room 1117 of the main Department building. In addition, a copy of the Issues and Decision Memorandum can be accessed directly on our website at http://ia.ita.doc.gov/​. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content.

Final Rescission of Zhengyang's and Juye's New Shipper Reviews

Subsequent to our Preliminary Results, Zhengyang and Juye each ceased participation in its respective new shipper review. Specifically, Zhengyang did not respond to the Department's May 27, 2009 supplemental questionnaire and Juye withdrew from its new shipper review on June 4, 2009. By not fully participating in its new shipper review, each company has failed to establish that it qualified for a separate rate.

To establish whether a company operating in a non-market economy (NME) is sufficiently independent from the Government to be eligible for a separate rate, the Department analyzes each exporting entity 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), 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). Under the separate rates criteria, the Department assigns separate rates in NME cases only if the respondent can demonstrate the absence of both de jure and de facto governmental control over export activities. We note that by failing to fully participate in their new shipper reviews, Zhengyang and Juye did not demonstrate that they are free of government control and, therefore, are not eligible to receive a separate rate, and as part of the NME-entity are not eligible for a new shipper review. As such, the Department rescinds the new shipper reviews of Zhengyang and Juye.

Bona Fides Analyses For Chenglong, Tianheng, Yuanxiang and Hejia; and Final Rescission of New Shipper Reviews with Respect to Chenglong and Tianheng

While conducting a review, particularly a review where a company's margin would be based on a single sale, the Department examines price, quantity, and other circumstances associated with the sale under review, and must determine if the sale was based on normal commercial considerations and presents an accurate representation of the company's normal business practices. If the Department determines that the price was not based on normal commercial considerations or is atypical of the respondent's normal business practices, including other sales of comparable merchandise, the sale may be considered non-bona fide.

In the Preliminary Results, the Department preliminarily found that Chenglong's, Hejia's, and Yuanxiang's single POR sales were made on a bona fide basis. However, as a result of our analyses of information found during the verification of these companies, as well as comments made by interested parties, the Department has determined that Chenglong's POR transaction was not a bona fide sale. Finally, the Department continues to find Yuanxiang's and Hejia's sales to be bona fide for these final results.

Chenglong: In the Preliminary Results, the Department noted that certain information on the record called into question the bona fides of Chenglong's sale and that we would continue to examine all aspects of Chenglong's POR sale. See Preliminary Results at 20455. After conducting verification of Chenglong and reviewing interested parties' briefs, the Department has determined that Chenglong's sale was not a bona fide transaction. See the Chenglong Final Bona Fides Memorandum for a more detailed discussion of the Department's determination as well as the Issues and Decision Memorandum at Comment 2. Accordingly, the Department is rescinding this NSR with respect to Chenglong.

Tianheng: On July 30, 2009, the Department preliminarily found Tianheng's sale to be not bona fide. See Amended Memorandum. As noted in the “Background” section, both Petitioners and Tianheng submitted briefs and rebuttal briefs regarding the bona fides of Tianheng's single sale. Based on our analysis of arguments made by the parties, the Department continues to find Tianheng's sale to be not bona fide. See Issues and Decision Memorandum at Comment 3. Therefore, we are rescinding the NSR with respect to Tianheng for these final results.

Yuanxiang: In the Preliminary Results, the Department preliminarily concluded that the single sale made by Yuanxiang was a bona fide commercial transaction. Petitioners and Yuanxiang have submitted arguments as to whether the Department should rescind Yuanxiang's NSR in these final results. See the Yuanxiang Final Bona Fides Memorandum for a more detailed discussion of the Department's determination as well as the Issues and Decision Memorandum at Comment 4. Based on the totality of the circumstances as discussed in the Issues and Decision Memorandum addressing Yuanxiang's bona fides issues, for these final results, the Department continues to find that Yuanxiang's sale was bona fide. See id.

Hejia: In the Preliminary Results, the Department noted that certain information on the record called into question the bona fides of Hejia's POR sale and that we would continue to examine all aspects of Hejia's sale. See Preliminary Results at 20455. After conducting verification of Hejia and reviewing interested parties' briefs, the Department has determined that Hejia's Start Printed Page 50954sale was a bona fide transaction. See the Hejia Final Bona Fides Memorandum for a more detailed discussion of the Department's determination as well as the Issues and Decision Memorandum at Comment 1. Based on the totality of the circumstances as discussed in the Issues and Decision Memorandum addressing Hejia's bona fides issues, for these final results, the Department continues to find that Hejia's sale was bona fide. See id.

Changes Since the Preliminary Results

Based on our analysis of information on the record of these reviews, and comments received from the interested parties, we have made changes to the financial ratios used to value overhead expenses, selling expenses, general expenses, and profits for the respondents. In these final results, for Yuanxiang, we are calculating surrogate financial ratios using a simple average of financial data from four Indian processors of tea, coffee, and rice. Using an average of these four companies' data allows us to calculate financial ratios that better reflect the broader experience of the surrogate industry. See Issues and Decision Memorandum at Comment 7 and Final Surrogate Values Memorandum. Also, based on our findings at verification, the Department is adjusting Yuanxiang's factors regarding packing for these final results. See Yuanxiang Verification Report at 3. The Department has also made changes to the valuation of Hejia's single-clove garlic input. The specific changes, which includes business proprietary information, are addressed in the Memorandum from Nicholas Czajkowski, Case Analyst, Re: New Shipper Review of Fresh Garlic from the People's Republic of China: Analysis for the Final Results of Jinxiang Hejia Co., Ltd. (Hejia).

FINAL RESULTS OF NEW SHIPPER REVIEWS

As a result of our reviews, we determine that the following margins exist for the periods November 1, 2007 through April 30, 2008 and November 1, 2007 through June 9, 2008:

Fresh Garlic from the PRC 2007-2008 New Shipper Reviews

Exported and Produced by Chengwu County Yuanxiang Industry & Commerce, Ltd.115.29
Exported and Produced by Jinxiang Hejia Co., Ltd.15.37

Disclosure

We will disclose the calculations used in our analysis to parties to these proceedings within five days of the date of publication of this notice. See 19 CFR 351.224(b).

Assessment Rates

Consistent with the final results of the 13th administrative review (AR) and NSRs of Fresh Garlic from the PRC, we will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per kilogram) amount on each entry of the subject merchandise during the POR. See Fresh Garlic from the People's Republic of China: Final Results and Partial Rescission of the 13th Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR 29174, 29177 (June 19, 2009) (13th AR & NSRs of Fresh Garlic from the PRC). Therefore, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1). The Department will issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this review. For assessment purposes, we calculated importer-specific assessment rates for fresh garlic from the PRC. Specifically, we divided the total dumping margins for each importer by the total quantity of subject merchandise sold to that importer during the POR to calculate a per-unit assessment amount. We will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per kilogram) amount on each entry of the subject merchandise during the POR if any importer-specific assessment rate calculated in the final results of this review is above de minimis.

Cash Deposit Requirements

Consistent with the final results of the 13th AR & NSRs of Fresh Garlic from the PRC, we will collect a per kilogram cash-deposit amount which will be the per-unit equivalent of the company-specific dumping margin published in the final results of these reviews. The following cash deposit requirements will be effective upon publication of the final results of these reviews for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results, as provided by section 751(a)(1) of the Act: (1) for subject merchandise produced and exported by Yuanxiang the cash deposit rate will be the per-unit rate determined in the final results of the new shipper review; (2) for subject merchandise exported by Yuanxiang but not produced by Yuanxiang, the cash deposit rate continues to be the per-unit PRC-wide rate; (3) for subject merchandise produced and exported by Hejia the cash deposit rate will be the per-unit rate determined in the final results of the new shipper review; (4) for subject merchandise exported by Hejia but not produced by Hejia, the cash deposit rate continues to be the per-unit PRC-wide rate; and (5) for subject merchandise produced or exported by Tianheng, Zhengyang, Chenglong, and Juye, the cash deposit rates continues to be the per-unit PRC-wide rate. These requirements, when imposed, shall remain in effect until further notice.

Notification to Importers

This notice serves as a final 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.

Administrative Protective Orders

This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

These new shipper reviews and notice are issued and published in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR and 351.214.

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Dated: September 24, 2009.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.

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Appendix I

Comment 1: Whether Hejia's Sale is Bona Fide

Comment 2: Whether Chenglong's Sale is Bona Fide

Comment 3: Whether Tianheng's Sale is Bona Fide

Comment 4: Whether Yuanxiang's Sale is Bona Fide

Comment 5: Surrogate Value of Single-Clove GarlicStart Printed Page 50955

Comment 6: Calculation of Yield Loss Factor

Comment 7: Financial Ratios

Comment 8: Whether to Calculate Separate Financial Ratios for Whole Garlic and Peeled Garlic

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Footnotes

1.  We extended the end of the period of review (POR) from April 30, 2007 to June 9, 2008, to capture entries for three respondents. See the “Expansion of the POR” section in the Preliminary Results.

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2.  In addition, due to the proprietary nature of much of the information involved in company-specific discussions, the Department has found it necessary to address certain issues in separate memoranda. See Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China (PRC): Jinxiang Hejia Co., Ltd (Hejia) (Hejia Final Bona Fides Memorandum) and Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People's Republic of China (PRC): Weifang Chenglong Import and Export Co. Ltd. (Chenglong) (Chenglong Final Bona Fides Memorandum).

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[FR Doc. E9-23834 Filed 10-1-09; 8:45 am]

BILLING CODE 3510-DS-S