[Federal Register Volume 65, Number 153 (Tuesday, August 8, 2000)]
[Notices]
[Pages 48464-48466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-20027]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic from the People's Republic of China: Preliminary 
Results of Antidumping Duty Administrative Review, and Partial 
Rescission 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 from the petitioners, the Fresh 
Garlic Producers Association and its individual members, the Department 
of Commerce is conducting an administrative review of the antidumping 
duty order on fresh garlic from the People's Republic of China. The 
period of review is November 1, 1998, through October 31, 1999. The 
petitioners requested a review of four exporters. One company reported 
that it had no shipments of subject merchandise to the United States 
during the period of review, and we have confirmed that claim with the 
U.S. Customs Service. Accordingly, we are rescinding the review with 
respect to this firm. Because the remaining three exporters have not 
responded to our questionnaire, we have preliminarily determined to use 
facts otherwise available for cash-deposit and assessment purposes for 
all producers/exporters of the subject merchandise.
    We invite interested parties 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: August 8, 2000.

FOR FURTHER INFORMATION CONTACT: Edythe Artman or Richard Rimlinger, 
Office of Antidumping/Countervailing Duty Enforcement 3, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone (202) 482-3931 or (202) 482-4477, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Act), are references to the provisions effective 
January 1, 1995, the effective date of the amendments made to the Act 
by the Uruguay Round Agreements Act (URAA). In addition, unless 
otherwise indicated, all citations to the Department of Commerce's (the 
Department's) regulations are to at 19 CFR Part 351 (1999).

Background

    On November 30, 1999, the petitioners requested an administrative 
review of Wo Hing (H.K.) Trading Co. (Wo Hing), Rizhao Hanxi Fisheries 
& Comprehensive Development Co., Ltd. (Rizhao), Fook Huat Tong Kee PTE. 
Ltd. (Fook Huat), and Zhejiang Materials Industry (Zhejiang). In 
response to the petitioners' request, the Department published a notice 
of initiation of an administrative review on December 28, 1999 (64 FR 
72644), in accordance with 19 CFR 351.213(b). On December 27, 1999, we 
issued questionnaires to the Embassy of the People's Republic of China 
(PRC), the Ministry of Foreign Trade and Economic Cooperation (MOFTEC), 
Wo Hing, Rizhao, and Fook Huat. We sent a questionnaire to Zhejiang in 
care of MOFTEC, since we were unable to obtain an address or phone 
number for that company. We

[[Page 48465]]

did not receive a response to the questionnaire from either the PRC 
embassy or MOFTEC.

Scope of Review

    The products subject to this antidumping duty administrative review 
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, 0710.80.7060, 
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 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.

Partial Rescission of Administrative Review

    One respondent-company replied to our questionnaire. Wo Hing 
reported that it made no shipments of subject merchandise to the United 
States during the period of review (POR). We have confirmed with the 
U.S. Customs Service that Wo Hing made no shipments during the POR. 
Accordingly, we are rescinding the administrative review with respect 
to Wo Hing pursuant to 19 CFR 351.213(d)(3).

Use of Facts Otherwise Available

    Section 776(a) of the Act provides that, if an interested party 
withholds information that has been requested by the Department and 
thereby precludes the Department from conducting an analysis of its 
sales made during the instant POR, the Department may, subject to 
section 782(d) of the Act, make its determination on the basis of the 
facts available. Since we received no responses other than from Wo 
Hing, it was not necessary to provide the respondents with an 
opportunity to remedy deficiencies in their responses pursuant to 
section 782(d) of the Act. Hence, we preliminarily determine to use the 
facts available in determining the dumping margin for Rizhao, Fook 
Huat, and Zhejiang.
    We preliminarily determine that Rizhao, Fook Huat, and Zhejiang do 
not merit separate rates because these respondents did not provide any 
response to the Department's request for information regarding 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). Consequently, 
consistent with the statement in our notice of initiation, because 
these companies do not qualify for separate rates, they, along with all 
other exporters of subject merchandise, are deemed to be covered by the 
PRC-entity rate discussed below.
    Section 776(b) of the Act permits us to draw an adverse inference 
where a party has not cooperated to the best of its ability in a 
proceeding. This section of the Act deems a respondent uncooperative 
where the party ``* * * has not acted to the best of its ability to 
comply with requests for necessary information.'' See the Statement of 
Administrative Action accompanying the URAA, H.R. Doc. 316, Vol. 1, 
103d Cong. (1994) (SAA) at 870. We find that, in not responding to our 
requests for information, the three respondents failed to cooperate to 
the best of their ability and, consequently, we have used an inference 
that is adverse to the interests of the respondents in selecting from 
among the facts otherwise available.
    The statute provides that an adverse inference may include reliance 
on information derived from 1) the petition, 2) the final determination 
in the investigation segment of the proceeding, 3) a previous review 
under section 751 of the Act or a determination under section 753 of 
the Act, or 4) any other information placed on the record. See section 
776(b) of the Act. In addition, the SAA establishes that the Department 
may employ an adverse inference ``to ensure that the party does not 
obtain a more favorable result by failing to cooperate than if it had 
cooperated fully.'' SAA at 870. In employing adverse inferences, the 
Department is instructed to consider ``the extent to which a party may 
benefit from its own lack of cooperation.'' Id.
    The Department's practice when selecting an adverse rate from among 
the possible sources of information is to ensure that the margin is 
sufficiently adverse ``as to effectuate the purpose of the facts 
available role to induce respondents to provide the Department with 
complete and accurate information in a timely manner.'' See Static 
Random Access Memory Semiconductors from Taiwan; Final Determination of 
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998). 
The Department also considers the extent to which a party may benefit 
from its own lack of cooperation in selecting a rate. See Roller Chain, 
Other than Bicycle, from Japan; Notice of Final Results and Partial 
Recision of Antidumping Duty Administrative Review, 62 FR 60472, 60477 
(November 10, 1997). In this case, we have used a rate of 376.67 
percent, which is the rate currently applicable to all exporters of 
garlic from the PRC and the rate determined in the investigation and 
every administrative review of the order conducted to date.
    Section 776(c) of the Act provides that, where the Department 
selects from among the facts otherwise available and relies on 
``secondary information,'' the Department shall, to the extent 
practicable, corroborate that information from independent sources 
reasonably at the Department's disposal. Secondary information is 
described in the SAA as ``[i]nformation derived from the petition that 
gave rise to the investigation or review, the final determination 
concerning the subject merchandise, or any previous review under 
section 751 concerning the subject merchandise.'' See SAA at 870. The 
SAA states that ``corroborate'' means to determine that the information 
used has probative value. See id. To corroborate secondary information, 
the Department will, to the extent practicable, examine the reliability 
and relevance of the information to be used. A respondent's own current 
rate has probative value. In this case, the respondents are currently 
subject to a PRC-wide cash-deposit rate of 376.67 percent. It is 
reasonable to assume that, if they could have demonstrated that their 
actual dumping margins are lower, they would have participated in this 
review and attempted to do so. See Sparklers from

[[Page 48466]]

the People's Republic of China; Preliminary Results of Antidumping Duty 
Administrative Review, 65 FR 18059, 18061 (April 6, 2000). In addition, 
the rate selected was corroborated, to the extent practicable, in an 
earlier review (see Fresh Garlic from the People's Republic of China; 
Preliminary Results of Antidumping Duty Administrative Review and 
Partial Termination of Administrative Review, 61 FR 68229 (December 27, 
1996)). We have no new information that would lead us to reconsider the 
reliability of that rate. Further, 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 
a margin not relevant. Where circumstances indicate that the selected 
margin may not be relevant, the Department will attempt to find a more 
appropriate basis for facts available. See, e.g., Fresh Cut Flowers 
from Mexico; Final Results of Antidumping Duty Administrative Review, 
61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded 
the highest margin as best information available because the margin was 
based on another company's uncharacteristic business expense resulting 
in an unusually high margin).
    In the less-than-fair-value investigation, we received no responses 
to requests for information on behalf of the respondent-companies. We 
therefore assigned a best-information-available margin of 376.67 
percent for all manufacturers and producers of the subject merchandise. 
See Antidumping Duty Order: Fresh Garlic from the People's Republic of 
China, 59 FR 59209 (November 16, 1994). We selected the rate of 376.67 
from the petition because it was the highest rate provided in that 
document. We assigned this margin in all subsequent reviews, where the 
respondents likewise did not respond to our requests for information. 
See Fresh Garlic from the People's Republic of China; Final Results of 
Antidumping Duty Administrative Review and Partial Termination of 
Administrative Review, 62 FR 23758 (May 1, 1997); Fresh Garlic from the 
People's Republic of China; Final Results of Antidumping Duty 
Administrative Review and Partial Termination of Administrative Review, 
62 FR 51082 (September 30, 1997); Fresh Garlic from the People's 
Republic of China; Final Results of Antidumping Duty Administrative 
Review, 65 FR 33295 (May 23, 2000). There is no other information 
reasonably at our disposal that would render the rate not relevant.
    In the current review, we are assigning the PRC-wide rate of 376.67 
percent since the respondents did not respond to our requests for 
information. We find that this rate is of probative value. Therefore, 
we find that the rate is an appropriate basis for adverse facts 
otherwise available.

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 as the PRC-entity for the period November 1, 1998, through 
October 31, 1999.
    Interested parties may request a hearing not later than 30 days 
after publication of this notice. Interested parties may also submit 
written arguments in case briefs on these preliminary results within 30 
days of the date of publication of this notice. Rebuttal briefs, 
limited to issues raised in case briefs, may be filed no later than 
five days after the time limit for filing case briefs. Parties who 
submit arguments are requested to submit with each argument a statement 
of the issue and a brief summary of the argument. Any hearing, if 
requested, will be held three days after the scheduled date for 
submission of rebuttal briefs.
    The Department will publish the final results of this 
administrative review, including a discussion of its analysis of issues 
raised in any case or rebuttal brief or at a hearing. The Department 
will issue final results of this review within 120 days of publication 
of these preliminary results.
    Upon completion of the final results in this review, the Department 
shall determine, and the Customs Service shall assess, antidumping 
duties on all appropriate entries.
    Furthermore, the following deposit rate 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.
    This deposit rate, 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 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.
    We are issuing this determination and notice in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: August 1, 2000.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 00-20027 Filed 8-7-00; 8:45 am]
BILLING CODE 3510-DS-P