[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