[Federal Register Volume 61, Number 250 (Friday, December 27, 1996)]
[Notices]
[Pages 68229-68231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32877]


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DEPARTMENT OF COMMERCE
[A-570-831]


Fresh Garlic From the People's Republic of China; Preliminary 
Results of Antidumping Duty Administrative Review and Partial 
Termination of Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of Preliminary Results of Antidumping Duty 
Administrative Review.

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SUMMARY: In response to a request by the petitioner, the Fresh Garlic 
Producers Association and its individual members, the Department of 
Commerce (the Department) is conducting an administrative review of the 
antidumping duty order on fresh garlic from the People's Republic of 
China (PRC). The period of review (POR) is July 11, 1994, through 
October 31, 1995. The petitioner's request covered 159 producers/
exporters of subject merchandise. Only one company, Top Pearl Ltd. (Top 
Pearl), a Hong Kong company, along with its U.S. importer of record, 
Merex Corporation, requested a review of its sales and has responded to 
our questionnaire. Because we have determined that (1) the review of 
Top Pearl should be terminated, and (2) the other PRC producers/
exporters failed to submit responses to our questionnaires, we have 
preliminarily determined to use facts otherwise available for cash 
deposit and assessment purposes for all PRC producers/exporters of the 
subject merchandise.
    Interested parties are invited to comment on these preliminary 
results. Parties who submit comments are requested to submit with each 
argument (1) a statement of the issue and (2) a brief summary of the 
argument.

EFFECTIVE DATE: December 27, 1996.

FOR FURTHER INFORMATION CONTACT: Andrea Chu or Kris Campbell, Office of 
AD/CVD Enforcement, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
4733.

SUPPLEMENTARY INFORMATION:

Applicable Statute

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act (URAA). In addition, unless otherwise 
indicated, all citations to the Department's regulations are to the 
current regulations, as amended by the interim regulations published in 
the Federal Register on May 11, 1995 (60 FR 25130).

Background

    On September 26, 1994, the Department published in the Federal 
Register (59 FR 49058) the final affirmative antidumping duty 
determination on fresh garlic from the PRC and published an antidumping 
duty order on November 16, 1994 (59 FR 59209). On November 15, 1995, 
the Department published in the Federal Register (60 FR 55541) a notice 
of ``Opportunity to Request an Administrative Review'' of the 
antidumping duty order on fresh garlic from the PRC. On November 30, 
1995, petitioner requested an administrative review of 159 producers/
exporters of this merchandise to the United States. On the same date, 
Top Pearl, along with its U.S. importer of record, Merex Corporation, 
requested a review of its sales. We initiated the review on December 
15, 1995 (60 FR 64413).

Scope of the Review

    The products subject to this antidumping duty order are all grades 
of garlic, whole or separated into constituent cloves, whether or not 
peeled, fresh, chilled, frozen, provisionally preserved, or packed in

[[Page 68230]]

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: (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 0703.20.0000, 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.
    In order to be excluded from the antidumping duty 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 the Customs Service to that effect.

Use of Facts Otherwise Available

    On January 25, 1996, we sent a questionnaire to the Embassy of the 
People's Republic of China, requesting that any designated party answer 
the questions to the extent possible for all companies that 
manufactured or exported the subject merchandise during the period of 
review (POR), whether or not they were owned by the PRC-government or 
subject to PRC government control of export pricing. We also stated 
that all companies named in the notice of initiation were presumed to 
be under PRC-government control and we requested that the government 
designate a person or organization as our contact for this review. The 
embassy named the Ministry of Foreign Trade and Economic Cooperation 
(MOFTEC) as our contact. We did not receive any response from MOFTEC 
regarding the questionnaire nor did we receive a response from any PRC 
companies. Therefore, we must rely on facts otherwise available in 
accordance with section 776(a) of the Act for these preliminary results 
of review.
    Because necessary information is not available on the record with 
regard to sales by these firms, as a result of their withholding the 
requested information, we are preliminarily determining to apply 
antidumping duties based on facts otherwise available pursuant to 
section 776(a) of the Act. In addition, the Department finds that, in 
not responding to the questionnaire, the firms named in the notice of 
initiation failed to cooperate by not acting to the best of their 
ability to comply with requests for information from the Department.
    Where the Department must base the entire dumping margin for a 
respondent in an administrative review on facts available because that 
respondent failed to cooperate, section 776(b) of the Act authorizes 
the Department to use an inference adverse to the interests of that 
respondent in choosing facts available. Section 776(b) of the Act also 
authorizes the Department to use, as adverse facts available, 
information derived from the petition, the final determination, a 
previous administrative review, or other information placed on the 
record. Because information from prior segments of the proceeding 
constitutes secondary information, section 776(c) of the Act provides 
that the Department shall, to the extent practicable, corroborate that 
secondary information from independent sources reasonably at its 
disposal. The Statement of Administrative Action (SAA) provides that 
``corroborate'' means simply that the Department will satisfy itself 
that the secondary information to be used has probative value.
    To corroborate secondary information, the Department will, to the 
extent practicable, examine the reliability and relevance of the 
information to be used. With respect to the relevance aspect of 
corroboration, the Department will consider information reasonably at 
its disposal as to whether there are circumstances that would render 
the secondary information not relevant. Where circumstances indicate 
that the selected data is not appropriate as adverse facts available, 
the Department will disregard that data and determine an appropriate 
alternative (see, e.g., Bicycles from the PRC; Final Determination of 
Sales at Less than Fair Value, 61 FR 19026, 19027 (April 30, 1996) 
(where the Department disregarded certain information from the petition 
as adverse facts available because the data was not reflective of the 
industry and, therefore, did not have probation value)). In this case, 
we relied upon information from the petition as secondary information. 
Based on our review of several major items (i.e., general and 
administrative expense, packing cost and profit, as well as the factor 
value for seed cost and labor cost) contained in the petition which 
individually comprise a significant portion of the normal value (NV) 
calculations, there is no indication that the selected margin is not 
appropriate as facts available.
    In this case, in accordance with the facts-available formula stated 
above, we have preliminarily assigned these companies the rate 
determined for companies involved in the less-than-fair-value 
investigation (376.67 percent). Moreover, we have determined that the 
non-responsive companies do not merit separate rates. See, e.g, Natural 
Bristle Paint Brushes and Brush Heads From the People's Republic of 
China; Preliminary Results of Antidumping Duty Administrative Review, 
61 FR 57390 (November 6, 1996). Therefore, the facts available for 
these companies forms the basis for the PRC rate, which is 376.67 
percent for this review.

Partial Termination of Review

    We also preliminarily determine to terminate our review of Top 
Pearl, the sole responding party in this proceeding. This determination 
is based on the principle that it is not appropriate to review U.S. 
sales made by a third-country company (in this case, Top Pearl) whose 
supplier (here, the PRC exporter Wallong) had knowledge that the 
merchandise was destined for the United States. Instead, the 
appropriate respondent in this instance is Wallong. We are assigning 
the PRC rate to transactions made during the period between Wallong and 
Top Pearl, for the reasons stated in our November 22, 1996 memorandum: 
Partial Termination of 1994-95 Administrative Review of Fresh Garlic 
from the PRC (November 22, 1996). Specifically, we did not receive a 
request for review of Wallong; accordingly, Wallong is not entitled to 
a review of its POR sales as a separate entity (as opposed to its 
participation as part of the PRC entity). In order for Wallong to 
participate in this review as an independent company and not as part of 
the PRC entity, a request for review of this company must have been 
made during the anniversary month (see 19 CFR 353.22) and the company 
must have established that it is entitled to a separate rate.

Preliminary Results of the Review

    As a result of our review, we preliminarily determine that a margin 
of 376.67 percent exists for all producers/exporters of the subject 
merchandise for the period July 11, 1994 through October 31, 1995.

[[Page 68231]]

    Parties to the proceeding may request disclosure within 5 days of 
the date of publication of this notice. Any interested party may 
request a hearing within 10 days of publication. Any hearing, if 
requested, will be held 44 days after the publication of this notice or 
the first workday thereafter. Interested parties may submit case briefs 
within 30 days of the date of publication of this notice. Rebuttal 
briefs, which must be limited to issues raised in the case briefs, may 
be filed not later than 37 days after the date of publication. The 
Department will issue a notice of final results of this administrative 
review, which will include the results of its analysis of issues raised 
in any such comments, within 120 days of publication of these 
preliminary results.
    The Department will determine, and the Customs Service will assess, 
antidumping duties on all appropriate entries. Upon completion of this 
review, the Department will issue appraisement instructions directly to 
the Customs Service.
    Furthermore, the following deposit rates will be effective upon 
publication of the final results of this administrative review for all 
shipments of fresh garlic from the PRC entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(c) of the Act: For all PRC exporters 
and for all non-PRC exporters of subject merchandise from the PRC, the 
cash deposit rate will be the PRC-wide rate established in the final 
results of this review.
    These deposit rates, when imposed, shall remain in effect until 
publication of the final results of the next administrative review.
    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 353.26 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.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)) and 19 CFR 353.22.

    Dated: December 18, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-32877 Filed 12-26-96; 8:45 am]
BILLING CODE 3510-DS-P