[Federal Register Volume 67, Number 128 (Wednesday, July 3, 2002)]
[Notices]
[Pages 44594-44596]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16742]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic from the People's Republic of China: Rescission of 
New Shipper Antidumping Duty Review and Initiation of New Shipper 
Antidumping Duty Review

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

ACTION: Notice of Rescission of New Shipper Antidumping Duty Review and

[[Page 44595]]

Initiation of Antidumping Duty New Shipper Review.

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EFFECTIVE DATE:  July 3, 2002.
SUMMARY: At the request of Huaiyang Hongda Dehydrated Vegetable 
Company, the Department of Commerce initiated a new shipper review of 
its shipments of merchandise subject to the antidumping duty order on 
fresh garlic from the People's Republic of China. The period of review 
is November 1, 2000, through October 31, 2001. However, after review of 
the company's responses to our original and supplemental 
questionnaires, we found that the date of sale and entry of the 
company's U.S. sale fell outside the period of review. We are therefore 
rescinding this new shipper review.
    Although the Department of Commerce is rescinding the November 1, 
2000, through October 31, 2001, new shipper review for Huaiyang Hongda 
Dehydrated Vegetable Company, we still find that its request for review 
complies with the content requirements for a new shipper review. 
Further, we find that the date of sale and entry for the transaction 
covered by the company's request for review fall within the six-month 
period immediately preceding the May semiannual anniversary month of 
the antidumping duty order on fresh garlic from the People's Republic 
of China. Therefore, in accordance with 19 CFR 351.214(g)(1)(B), we are 
initiating a new shipper antidumping duty review for the period of 
November 1, 2001, through April 30, 2002.

FOR FURTHER INFORMATION CONTACT:  Edythe Artman or Mark Ross, Office of 
AD/CVD Enforcement III, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202) 
482-3931 or (202) 482-4794, 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. In addition, for purposes of the 
rescission, all references are made to the Department of Commerce's 
(the Department) regulations at 19 CFR Part 351 (2001), and, for 
purposes of the initiation, all references are made to the Department's 
regulations at 19 CFR Part 351 (2002).

Background

    On November 30, 2001, we received a request for a new shipper 
review from Huaiyang Hongda Dehydrated Vegetable Company (Hongda). We 
reviewed this request, in addition to two other requests, and found 
that the requests complied with the content requirements for requests 
for new shipper reviews set forth under 19 CFR 351.214(b)(2). We 
therefore initiated three new shipper reviews on December 28, 2001. See 
Fresh Garlic from the People's Republic of China: Initiation of New 
Shipper Antidumping Duty Reviews, 67 FR 715 (Jan. 7, 2002) (Initiation 
Notice). On January 22, 2002, we issued Hongda a questionnaire. On 
March 7, 2002, we received a response from Hongda to the questionnaire. 
The company submitted a response to our May 15, 2002, supplemental 
questionnaire on June 5, 2002, and supplemented this response with 
additional information on June 17, 2002.

Rescission of New Shipper Review

    In its request for a new shipper review, Hongda stated that its 
only sale of subject merchandise had occurred on October 29, 2001, and 
that it considered this date to be both the sales invoice date and the 
date of sale. It also stated that the merchandise was entered for 
consumption into the United States on November 28, 2001. In support of 
its statements, it submitted an invoice, dated October 29, 2001, and a 
U.S. Customs entry summary form showing an entry date of November 28, 
2001. Based on this request and documentation, we concluded that a sale 
had taken place during the period of review as defined under 19 CFR 
351.214(g) and that the request complied with the content requirements 
for requests set forth under 19 CFR 351.214(b)(2).
    In its March 7, 2002, questionnaire response, Hongda confirmed that 
the invoice date for its U.S. sale was October 29, 2001. However, it 
claimed that the merchandise was shipped from the factory on November 
7, 2001, and that, upon its arrival in the United States, the U.S. 
Customs Service refused entry of the merchandise unless the importer 
entered the merchandise at a higher price. In support of its claim, 
Hongda submitted an entry summary reject form from the U.S. Customs 
Service that showed that entry of the merchandise was rejected on the 
basis of value claimed. Hongda stated that, as a result, the price was 
increased and it issued a supplemental invoice to the customer on 
November 29, 2001, to reflect this price increase. It stated that, 
since the increased price was not the result of a negotiation between 
the buyer and the seller, the price increase did not affect the date of 
sale and should be treated as a billing adjustment.
    The petitioner, the Fresh Garlic Producers Association, submitted 
comments on Hongda's response on April 5, 2002. It argued that the new 
shipper review should be rescinded on the basis that no sale or entry 
had occurred during the period of review (POR). The petitioner asserted 
that a key term of sale the price changed on November 29, 2001, and 
that, accordingly, the sale of the merchandise did not occur during the 
POR.
    In its June 5, 2002, response to our supplemental questionnaire, 
Hongda claimed that the U.S. Customs Service had demanded that the U.S. 
customer import the merchandise at a specified higher price and that 
this was the price reflected in the price increase between Hongda and 
the customer. Hongda could not provide an explanation as to why the 
U.S. Customs Service demanded the higher price.
    As set forth under 19 CFR 351.401(i), the Department will normally 
use the date of invoice, as recorded in the exporter's or producer's 
records kept in the ordinary course of business, in identifying the 
date of sale of the subject merchandise. However, the Department may 
use a date other than the date of invoice if it is satisfied that a 
different date better reflects the date on which the exporter or 
producer establishes the material terms of sale. See 19 CFR 351.401(i). 
The Department cited and explained this regulatory provision in 
Appendix I of the January 22, 2002, questionnaire sent to Hongda. See 
Request for Information Regarding Exports of Fresh Garlic from the PRC, 
p. I-2 (Jan. 22, 2002). In addition, the Department stated that ``if 
basic terms of sale have changed up to, or even subsequent to, the date 
of shipment, then the date of shipment is the date of sale.'' Id.
    We find, based on a review of the record, that the U.S. Customs 
Service did not reject entry of the fresh garlic on the basis of the 
negotiated price between Hongda and the U.S. customer but on the basis 
of the value of the merchandise. Thus, we find that Hongda's decision 
to increase the price of its merchandise on November 29, 2001, was a 
decision it voluntarily made to have the merchandise enter the United 
States. Therefore, the price increase was not a mere billing 
adjustment, but a change in the price a material adjustment in the 
transaction of the goods. Consequently, a material

[[Page 44596]]

term of sale changed on November 29, 2001, and, because this date is 
subsequent to the date of shipment, we find that the date of sale is 
November 7, 2001.
    This date is outside of the POR for the new shipper review. Under 
19 CFR 351.214(g), a new shipper review will normally cover entries, 
exports, or sales during the twelve-month period preceding the 
anniversary month of the order if the new shipper review was initiated 
in the month immediately following the anniversary month. The 
anniversary month in this proceeding is November, since the antidumping 
duty order was published on November 16, 1994. We initiated the new 
shipper review on December 28, 2001. Consequently, the POR covers 
entries, exports, or sales of merchandise by Hongda from November 1, 
2000, until October 31, 2001. Because no sales or entries of 
merchandise occurred during this period, we are rescinding this review 
in accordance with 19 CFR 351.214(f)(2), which permits the Department 
to rescind a new shipper review when we conclude that no entry and sale 
of subject merchandise to an unaffiliated customer in the United States 
took place during the period of review.
    This notice serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
the APO in accordance with 19 CFR 351.305(a)(3). Timely written 
notification of the return or destruction of APO materials or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and terms of an APO is a sanctionable 
violation.

Initiation of New Shipper Review

    As indicated in the ``background'' section above, we found in our 
Initiation Notice that Hongda's November 30, 2001, request for a new 
shipper review complied with the content requirements set forth under 
19 CFR 351.214(b)(2). Therefore, we are initiating a new shipper review 
for shipments of fresh garlic from the People's Republic of China 
produced and exported by Hongda. This review will cover entries, 
exports, and sales during the period of November 1, 2001, through April 
30, 2002, as defined under 19 CFR 351.214(g). We intend to issue final 
results of this review no later than 270 days after the date on which 
the new shipper review was initiated. See 19 CFR 351.214(i).
    We previously instructed the Customs Service to allow, at the 
option of the importer, the posting of a bond or security in lieu of a 
cash deposit for each entry of the merchandise exported by Hongda in 
accordance with 19 CFR 351.214(e). These instructions will remain in 
effect until the completion of the new shipper review.
    The interested parties should submit applications for disclosure 
under APO in accordance with 19 CFR 351.305 and 351.306 of the 
Department's regulations.
    This rescission, initiation, and notice are in accordance with 
section 751(a)(2)(B)(ii) of the Act and 19 CFR 351.214 and 
351.221(c)(1)(i) of the Department's regulations.

    Dated: June 26, 2002
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 02-16742 Filed 7-2-02; 8:45 am]
BILLING CODE 3510-DS-S