[Federal Register Volume 59, Number 185 (Monday, September 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23767]


[[Page Unknown]]

[Federal Register: September 26, 1994]


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DEPARTMENT OF COMMERCE
[A-570-831]

 

Notice of Final 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: September 26, 1994.

FOR FURTHER INFORMATION CONTACT: Jennifer Stagner, 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-
1673.

Final Determination: We 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, as provided in section 735 of 
the Tariff Act of 1930, as amended (the Act). The estimated weighted-
average margin is shown in the ``Suspension of Liquidation'' section of 
this notice.

Case History

    Since the publication of our affirmative preliminary determination 
on July 6, 1994 (59 FR 35310, July 11, 1994), no new information has 
been added to the case record. No interested party has filed case or 
rebuttal briefs or has requested a hearing.
    On July 5, 1994, Global Trading Inc., an interested party in this 
investigation, alleged that there are methodological errors in the 
petition data regarding constructed value and U.S. price.

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.

Period of Investigation

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

Best Information Available

    The Department made the following efforts to obtain information 
from PRC exporters in this investigation: In March 1994, we sent an 
abbreviated section A questionnaire to the PRC Ministry of Foreign 
Trade and Economic Cooperation (MOFTEC) and cables to the U.S. 
Embassies in Beijing and Tokyo and the U.S. consulate in Hong Kong. In 
April 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); since no response was received, 
we made follow-up requests to MOFTEC, the U.S. Embassies in Beijing and 
Tokyo, and the U.S. consulate in Hong Kong.
    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. On May 18, 1994, the Department sent 40 
antidumping questionnaires to the named firms and to MOFTEC and the 
China Chamber. On May 31, 1994 and June 21, 1994, we sent 
questionnaires to two additional firms at their request.
    The Department received partial questionnaire responses from only 
nineteen companies. Of the nineteen companies, five firms stated that 
they did not export the subject merchandise to the United States. Four 
firms submitted limited information on the PRC garlic industry. Two 
firms submitted limited information on their U.S. sales. Eleven firms 
submitted critical circumstance data, and one firm stated that it could 
not provide the requested information. No firm submitted factors of 
production information or complete U.S. sales data, and no verification 
was conducted. Given the lack of complete, usable questionnaire 
responses, we determine, 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 determining what to use as BIA, the Department follows a two-
tiered methodology. Under this methodology, the Department normally 
assigns lower margins to those respondents who cooperated in an 
investigation and margins based on more adverse assumptions for those 
respondents who did not cooperate. (See Final Determination of Sales at 
Less Than Fair Value: Antifriction Bearings, Other than Tapered Roller 
Bearings, and Parts Thereof from the Federal Republic of Germany (54 FR 
18992, May 3, 1994).)
    In considering the application of BIA in this case, we have taken 
into account that, in cases involving the PRC, the Department assigns a 
single rate to all PRC exporters unless a company establishes that it 
is entitled to a separate rate. (See Final Determination of Sales at 
Less Than Fair Value: Silicon Carbide from the People's Republic of 
China (59 FR 22585, May 2, 1994)). In this case, no company has 
demonstrated that it should receive a separate rate. Consequently, all 
of the companies must receive a single rate. Given that this single 
rate includes non-respondent companies, we have followed our standard 
practice and applied an adverse BIA rate, which is the highest margin 
alleged in the petition (i.e., 376.67%). (See Initiation of Antidumping 
Duty Investigation: Fresh Garlic from the People's Republic of China 
(59 FR 9470, February 28, 1994).) This margin applies to all 
manufacturers, producers and exporters of fresh garlic in the PRC.
    Global Trading, Inc. (Global Trading), a U.S. importer of the 
subject merchandise, challenged the Department's reliance on 
petitioners' data. In particular, Global Trading questioned 
petitioners' average yield per acre figure in the constructed value 
calculation, based on its own research in China. Global Trading also 
challenged petitioners' calculation of U.S. price as being ``far from 
the actual'' price.
    The Department's practice with respect to challenges to petition 
data was outlined in the Administrative Review of Sales at Less Than 
Fair Value: Steel Wire Rope from Mexico (SWR from Mexico) (58 FR 7533, 
February 8, 1993), which established that the need for the Department 
to address petition deficiencies is limited. In that review, the 
Department stated that the ``rights [of a non-respondent company] are 
strictly limited to those comments that it can support without 
submitting any information on its costs or prices for the record,'' and 
the company ``is restricted to identifying clerical and methodological 
errors in the petition on the basis of public information.'' The 
Department found that to allow a company to selectively submit 
information when it did not submit an adequate questionnaire response 
would permit the company to manipulate the outcome of the proceeding. 
The Department determined that such actions would defeat the purpose of 
the BIA rule, which is to provide respondents with an incentive to 
cooperate fully in antidumping proceedings.
    In applying the standard from SWR from Mexico to Global Trading's 
challenge in this case, we have determined that (1) for the average 
yield per acre, the information submitted by Global Trading was not 
public information and (2) for U.S. price, Global Trading submitted 
data regarding its own purchases of the subject merchandise from four 
PRC exporters. Thus, we have found that neither of Global Trading's 
specific challenges meets the standard established in SWR from Mexico 
and, therefore, we have not adjusted the data from the petition based 
on Global Trading's allegations. We note that the petitioners used 
standard methodologies, which have been examined by the Department.

Critical Circumstances

    In our preliminary determination, we found that ``critical 
circumstances'' exist with respect to imports of fresh garlic from the 
PRC. Pursuant to section 733(e)(1) of the Act, we based our preliminary 
determination on a finding of (1) knowledge of dumping because the 
estimated dumping margin for all exporters of fresh garlic in the PRC 
was in excess of 25 percent, and (2) massive imports over a relatively 
short period of time because respondents failed to respond to the 
Department's questionnaire. As a result, we assumed, as BIA, that 
imports have been massive.
    For the final determination, we have continued to use BIA as the 
basis for our determination of critical circumstances. The BIA margin 
exceeds the 25 percent threshold for imputing knowledge of dumping to 
the importers of the subject merchandise.
    In addition, we have adversely assumed, as BIA, a massive increase 
in imports because of the non-response of exporters.
    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 determine that critical 
circumstances do exist with respect to fresh garlic from the PRC.

Continuation of Suspension of Liquidation

    In accordance with section 735(d)(1) and 735(c)(4)(A) of the Act, 
we are directing the Customs Service to continue 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 April 12, 1994, 
which is 90 days before the date of publication of the preliminary 
determination 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. 

------------------------------------------------------------------------
                                                                Margin  
              Manufacturer/producer/exporter                   percent  
------------------------------------------------------------------------
All Manufacturers/producers/exporters......................      376.67 
------------------------------------------------------------------------

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of this determination. The ITC 
will determine, within 45 days, whether these imports are causing 
material injury, or threat thereof, to the industry in the U.S. 
producing the subject merchandise. If the ITC determines that material 
injury, or threat thereof, does not exist, the proceeding will be 
terminated and all securities posted will be refunded or cancelled. If 
the ITC determines that such injury does exist, the Department will 
issue an antidumping duty order directing Customs officials to assess 
antidumping duties on all imports of the subject merchandise entered, 
or withdrawn from warehouse, for consumption on or after the effective 
date of the suspension of liquidation.
    This determination is published pursuant to section 735(d) of the 
Act and 19 CFR 353.20(a)(4).

    Dated: September 19, 1994.
Paul L. Joffe,
Acting Assistant Secretary for Import Administration.
[FR Doc. 94-23767 Filed 9-23-94; 8:45 am]
BILLING CODE 3510-DS-P