[Federal Register Volume 59, Number 131 (Monday, July 11, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16741]


[[Page Unknown]]

[Federal Register: July 11, 1994]


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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]

 

Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Fresh Garlic From the People's Republic of China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
EFFECTIVE DATE: July 11, 1994.

FOR FURTHER INFORMATION CONTACT:
John Beck, Office of Antidumping Investigations, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue NW., Washington, DC, 20230; telephone 
(202) 482-3464.

Preliminary Determination

    We preliminarily determine that fresh garlic from the People's 
Republic of China (PRC) is being, or is likely to be, sold in the 
United States at less than fair value (LTFV), as provided in section 
733 of the Tariff Act of 1930, as amended (the Act).

Case History

    Since the notice of initiation on February 22, 1994 (59 FR 9470, 
February 28, 1994), the following events have occurred.
    On March 17, 1994, the U.S. International Trade Commission (ITC) 
issued an affirmative preliminary determination.

Departmental Efforts to Obtain Information

    During March and April 1994, the Department requested information 
relating to producers/exporters of the subject merchandise in the PRC, 
as follows:
     On March 3, 1994, we sent an abbreviated section A 
questionnaire to China's Ministry of Foreign Trade and Economic 
Cooperation (MOFTEC);
     On March 4, 1994, we sent a cable to the American Embassy 
in Beijing;
     On March 11, 1994, we sent a cable to the American Embassy 
in Tokyo, and to the U.S. consulate in Hong Kong; and
     On April 7, 1994, we sent an abbreviated section A 
questionnaire to the China Chamber of Commerce of Imports & Exports of 
Foodstuffs, Native Produce, and Animal By-Products (China Chamber)
    Having received no response to our initial inquiries, follow-up 
requests for information were made as follows:
     On April 7, 1994, to MOFTEC; and
     On April 15, 1994, to the American Embassies in Beijing 
and Tokyo, and to the U.S. consulate in Hong Kong.

Respondents and Status of Questionnaires

    On May 11 and 12, 1994, the Department received information from 
MOFTEC and the American Embassy in Beijing, respectively, containing 
the names and addresses of 40 producers/exporters of the subject 
merchandise in the PRC. Based on an analysis of ships' manifest data 
(PIERS), the Department estimated that the named respondents accounted 
for approximately 40 percent of exports of the subject merchandise to 
the United States during the period of investigation. Consequently, on 
May 18, 1994, the Department sent 40 antidumping questionnaires to the 
named firms, with additional copies sent to MOFTEC and the China 
Chamber.
    Following an entry of appearance by counsel for a previously 
unnamed producer/exporter, the Department sent a questionnaire to this 
additional firm on May 31, 1994. Finally, at the request of a second 
previously unnamed producer/exporter, the Department sent a 
questionnaire to this additional firm on June 21, 1994.

Other Events

    On June 2, 1994, the Department issued a decision memorandum which 
stated that we would not postpone our preliminary determination.
    Based on reasonably supported allegations submitted by petitioner 
on June 10, 1994, the Department initiated an investigation on June 14, 
1994, of whether critical circumstances exist with respect to imports 
of fresh garlic from the PRC. On June 14 and 21, 1994, the Department 
requested monthly shipment data for exports to the United States from 
questionnaire recipients.

Scope of Investigation

    The products covered by this investigation 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 subject merchandise is used principally as a food product and 
for seasoning. The subject garlic is currently classifiable under 
subheadings 0703.20.0000, 0710.80.7060, 0710.80.9750, 0711.90.6000, and 
2005.90.9500 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 
proceeding is dispositive.
    The scope description provided above differs from the scope 
description used by the Department in its notice of initiation of this 
investigation (59 FR 9470, February 28, 1994). Changes to the scope 
include (a) the addition of more concise language (and additional HTS 
subheadings) related to the packing of the subject merchandise, and (b) 
additional language to exclude further processed products. The 
revisions are a result of comments received from the Customs Service on 
March 17 and June 30, 1994, and from counsel for petitioner on June 29 
and 30, 1994.

Period of Investigation

    The period of investigation (POI) is August 1, 1993, to January 31, 
1994.

Best Information Available

    We have determined, in accordance with section 776(c) of the Act, 
that the use of best information available (BIA) is appropriate for 
sales of the subject merchandise in this investigation. In deciding 
whether to use BIA, section 776(c) provides that the Department may 
take into account whether the respondent was able to produce 
information requested in a timely manner and in the form required. In 
this case, exporters of fresh garlic from the PRC did not respond to 
our requests for information.
    As outlined in the ``Case History'' section of this notice, the 
Department made several attempts to obtain information from a number of 
sources. We have not received any responses to our questionnaire with 
which to perform our antidumping analysis. Consequently, we based our 
preliminary determination in this investigation on BIA.
    In determining what to use as BIA, the Department follows a two-
tiered methodology, whereby the Department normally assigns lower 
margins to those respondents who cooperate in an investigation, and 
margins based on more adverse assumptions for those respondents who do 
not cooperate in an investigation. Since the potential respondents in 
this case have not cooperated, we assigned a BIA margin based on the 
most adverse assumptions.
    In this case, BIA is the highest margin contained in the petition 
(see Initiation of Antidumping Duty Investigation: Fresh Garlic from 
the People's Republic of China, 59 FR 9470, February 28, 1994), and is 
listed below for all manufacturers, producers and exporters of fresh 
garlic in the PRC.

Critical Circumstances

    Petitioner alleges that ``critical circumstances'' exist with 
respect to imports of fresh garlic from the PRC. Section 733(e)(1) of 
the Act provides that there is a reasonable basis to believe or suspect 
that critical circumstances exist if:
    (A)(i) There is a history of dumping in the United States or 
elsewhere of the class or kind of merchandise which is the subject of 
the investigation, or
    (ii) The person by whom, or for whose account, the merchandise was 
imported knew or should have known that the exporter was selling the 
merchandise which is the subject of investigation at less than its fair 
value, and
    (B) There have been massive imports of the class or kind of 
merchandise which is the subject of the investigation over a relatively 
short period.
    Regarding criterion (A) above, we normally consider margins of 25 
percent or more as sufficient to impute knowledge of dumping. Since the 
preliminary estimated dumping margin for all exporters of fresh garlic 
in the PRC is in excess of 25 percent, we can impute knowledge of 
dumping under section 733(e)(1)(A)(ii) of the Act.
    Regarding criterion (B) above, pursuant to 19 CFR 353.16(f), we 
generally consider the following factors in determining whether imports 
have been massive over a short period of time: (1) the volume and value 
of the imports; (2) seasonal trends (if applicable); and (3) the share 
of domestic consumption accounted for by the imports. If imports during 
the period immediately following the petition increase by 15 percent 
over imports during a comparable period immediately preceding the 
filing of a petition, we consider them massive. Respondents have failed 
to respond to the Department's questionnaire, as well as to our request 
for monthly export data. As a result, the Department has assumed, as 
BIA, that there have been massive imports over a relatively short 
period of time.
    Accordingly, because the dumping margin is sufficient to impute 
knowledge of dumping, and because we have determined that imports of 
fresh garlic have been massive, we preliminarily determine that 
critical circumstances do exist in this investigation.

Suspension of Liquidation

    In accordance with section 733(d)(1) of the Act, we are directing 
the Customs Service to suspend liquidation of all entries of fresh 
garlic from the PRC, as defined in the ``Scope of Investigation'' 
section of this notice, that are entered, or withdrawn from warehouse, 
for consumption on or after the date 90 days before the date of 
publication of this notice in the Federal Register. The Customs Service 
shall require a cash deposit or posting of a bond equal to the 
estimated margin amount by which the foreign market value of the 
subject merchandise exceeds the United States price as shown below. The 
suspension of liquidation will remain in effect until further notice. 

------------------------------------------------------------------------
                                                               Weighted-
                                                                average 
               Manufacturer/producer/exporter                    margin 
                                                                percent 
------------------------------------------------------------------------
All Manufacturers/Producers/Exporters........................     376.67
------------------------------------------------------------------------

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of this determination.

Public Comment

    In accordance with 19 CFR 353.38, case briefs or other written 
comments in at least ten copies must be submitted to the Assistant 
Secretary for Import Administration by no later than August 26, 1994, 
and rebuttal briefs by no later that September 2, 1994. In accordance 
with 19 CFR 353.38(b), we will hold a public hearing, if requested, to 
give interested parties an opportunity to comment on arguments raised 
in case or rebuttal briefs. Tentatively, the hearing will be held on 
September 7, 1994, at 10:00 a.m. at the U.S. Department of Commerce, 
Room 3708, 14th Street and Constitution Avenue, NW., Washington, DC 
20230. Parties should confirm by telephone, the time, date, and place 
of the hearing 48 hours before the scheduled time.
    Interested parties who wish to request a hearing must submit a 
written request to the Assistant Secretary for Import Administration, 
U.S. Department of Commerce, Room B-099, within ten days of the 
publication of this notice in the Federal Register. Requests should 
contain: (1) the party's name, address, and telephone number; (2) the 
number of participants; and (3) a list of the issues to be discussed. 
In accordance with 19 CFR 353.38(b), oral presentations will be limited 
to issues raised in the briefs.
    This notice is published pursuant to section 733(f) of the Act (19 
U.S.C. 1673b(f)) and 19 CFR 353.15(a)(4).

    Dated: July 6, 1994.
Susan G. Esserman,
Assistant Secretary for Import Administration.
[FR Doc. 94-16741 Filed 7-8-94; 8:45 am]
BILLING CODE 3510-DS-P