[Federal Register Volume 68, Number 20 (Thursday, January 30, 2003)]
[Notices]
[Pages 4758-4760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2100]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic from the People's Republic of China; Final Results 
of Antidumping Duty Administrative Review and Rescission of 
Administrative Review in Part

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

ACTION: Notice of Final Results of Antidumping Duty Administrative 
Review and Rescission of Administrative Review in Part.

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SUMMARY: On August 9, 2002, the Department of Commerce published the 
preliminary results of the administrative review of 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. The 
administrative review covers thirteen producers/exporters of subject 
merchandise.
    We invited interested parties to comment on our preliminary 
results. Based on our analysis of the comments received, we have made 
no changes to our analysis of our intent to rescind the review with 
respect to one respondent company. We have determined that we should 
rescind the review of another respondent company instead of assigning 
that company a rate based on adverse facts available. For a discussion 
of the rescissions, see the section ``Partial Rescission of Review'' 
listed below. The final dumping margins for the administrative review 
are listed in the ``Final Results of the Review'' section below.

EFFECTIVE DATE: January 30, 2003.

FOR FURTHER INFORMATION CONTACT: Edythe Artman or Catherine Cartsos, 
Office of Antidumping/Countervailing Duty Enforcement 3, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 
20230; telephone (202) 482-3931 or (202) 482-1757, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On August 9, 2002, the Department published the preliminary results 
of the administrative review of the antidumping duty order on fresh 
garlic from the People's Republic of China. See Fresh Garlic from the 
People's Republic of China: Preliminary Results of Antidumping Duty 
Administrative Review, Partial Rescission of Administrative Review, and 
Intent to Rescind Administrative Review in Part, 67 FR 51822 (August 9, 
2002) (Preliminary Results). We invited parties to comment on our 
preliminary results. With respect to our intent to rescind the 
administrative review in part, we received comments from the 
petitioners and Clipper Manufacturing Ltd. (Clipper). With respect to 
the preliminary results of the administrative review, we received 
comments from the petitioners, the respondent Taian Fook Huat Tong Kee 
Foods Co., Ltd. (FHTK), and the respondent Golden Light Trading 
Company, Ltd. (Golden Light).
    We have conducted these reviews in accordance with section 751 of 
the Tariff Act of 1930, as amended, and 19 CFR 351.213 (2001) .

Scope of the Order

    The products covered by 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 
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 order 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.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to the 
administrative review are addressed in the ``Issues and Decision 
Memorandum for the Administrative Review of Fresh Garlic from the 
People's Republic of China'' from Susan Kuhbach to Faryar Shirzad 
(January 21, 2003) (Decision Memo), which is hereby adopted by this 
notice. A list of the issues which parties raised and to which we 
responded in the Decision Memo is attached to this notice as an 
Appendix. The Decision Memo is a public document and is on file in the 
Central Records Unit (CRU), Main Commerce Building, Room B-099, and is 
accessible on the Web at

[[Page 4759]]

www.ia.ita.doc.gov. The paper copy and electronic version of the 
memorandum is identical in content.

Separate Rates

    In our preliminary results, we presumed that Golden Light was a 
market-economy company and that, accordingly, it qualified for a 
company-specific rate. We determined that a separate-rate analysis was 
not warranted for FHTK because, as a wholly owned foreign subsidiary, 
its parent company was beyond the jurisdiction of the People's Republic 
of China (PRC). See Preliminary Results, 67 FR at 51823. We have not 
received any information since the issuance of the Preliminary Results 
that provides a basis for reconsideration of these determinations.

Use of Adverse Facts Available

    In the Preliminary Results, we determined that Golden Light, Phil-
Sino International Trading Inc. (Phil-Sino), and Wo Hing (H.K.) Trading 
Co. (Wo Hing) should be assigned the rate of 376.67 percent based on 
use of the adverse facts available. In addition, we determined that 
this rate should be used as the adverse facts available for the PRC-
wide entity and, accordingly, we applied this rate to Foshan Foodstuffs 
Import & Export Company, Jinan Import & Export Corporation, Jinxiang 
Foreign Trade Corporation, Jinxiang Hong Chong Fruits & Vegetable 
Products Company, Ltd., Quingdao Rui Sheng Food Company, Ltd., Rizhao 
Hanxi Fisheries & Comprehensive Development Co., Ltd., Shandong 
Commercial Group Corporation, and Zhejiang Materials Industry 
International Co., Ltd. See Preliminary Results, 67 FR at 51825.
    Because we are rescinding the review for Golden Light, we find that 
the use of adverse facts available for its margin is not warranted. See 
the section ``Partial Rescission of Review'' below for a discussion of 
our determination.

Changes Since the Preliminary Results

    Based on our analysis of comments received, we have rescinded the 
review of Golden Light.
    With respect to FHTK, we have based the surrogate value for garlic 
sprouts on data from the Monthly Trade Statistics of Foreign Trade of 
India Volume II Imports(Indian Import Statistics) that falls under the 
tariff category for onions, shallots, garlic, leeks, and other 
alliaceous vegetables, fresh or chilled. We have based the value for 
potassium fertilizer on Indian import data that falls under the tariff 
category for mineral or chemical fertilizers, potassic, and covers the 
entire period of review. We have updated the financial information for 
the three Indian mushroom producers upon which we based our calculation 
of the surrogate financial ratios. Finally, we have based the value for 
electricity on data from the 1999/2000 Teri Energy Data Directory and 
Yearbook.
    We have not changed our analysis with respect to the rescission of 
Clipper from the review or with respect to the other respondents in the 
review.

Partial Rescission of Review

A. Clipper

    Section 772(a) of the Act, states, in part:
    The term ``export price'' means the price at which the subject 
merchandise is first sold (or agreed to be sold) before the date of 
importation by the producer or exporter of the subject merchandise 
outside of the United States to an unaffiliated purchaser in the United 
States or to an unaffiliated purchaser for exportation to the United 
States....
    Accordingly, we have interpreted section 772(a) of the Act to mean 
that we are to use the price at which the first party in the chain of 
distribution who has knowledge of the U.S. destination of the 
merchandise sells the subject merchandise, either directly to a U.S. 
purchaser or to an intermediary such as a trading company. The party 
making such a sale, with knowledge of destination, is the appropriate 
party to be reviewed. Our focus is on the first party in the chain of 
distribution with knowledge of the U.S. destination, rather than on the 
first chronological sale of the merchandise. One exception to this rule 
is that, in non-market economy (NME) cases, we do not base export price 
on internal transactions between two companies located in the NME. 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, 23759 (May 1, 1997).
    Applying these principles, we have not reviewed Clipper's sales to 
its U.S. customer because the evidence on the record supports a finding 
that PRC export agents which sold the subject merchandise to Clipper 
had knowledge of the U.S. destination when they made the sales to 
Clipper. In addition, the sales of the garlic from the export agents to 
Clipper were the first non-intra-NME sales in the chain of distribution 
of the merchandise. Thus, these sales provide the appropriate basis on 
which to determine the export price.
    The Department did not receive a request for review of the PRC 
export agents during the anniversary month of the publication of the 
antidumping duty order. See 19 CFR 351.213(b). Thus, it is not 
appropriate to conduct a review of the sales at issue. Therefore, we 
are rescinding this administrative review as it applies to Clipper. 
With this rescission, we will instruct the Customs Service to liquidate 
the entries during the period of review of subject merchandise from 
Clipper in accordance with 19 CFR 351.213(d).

B. Golden Light

    For reasons discussed in response to comment 5 of the Decision 
Memo, we have determined that it is appropriate to rescind Golden Light 
from the review pursuant to 19 CFR 351.213(d)(3) on the basis that 
Golden Light had no entries, exports, or sales of subject merchandise 
during the POR.

Final Results of the Administrative Review

    We determine that the following dumping margins exist for the 
period November 1, 2000, through October 31, 2001:

------------------------------------------------------------------------
                                                        Weighted-average
                       Exporter                        percentage margin
------------------------------------------------------------------------
Phil-Sino International Trading Inc..................             376.67
Wo Hing (H.K.) Trading Co............................             376.67
Taian Fook Huat Tong Kee Foods Co....................               0.00
------------------------------------------------------------------------

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The Department 
shall determine, and the Customs Service shall assess, antidumping 
duties on all appropriate entries. We will issue appropriate assessment 
instructions directly to the Customs Service within 15 days of 
publication of these final results of review.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of this notice of final results of administrative review 
for all shipments of the subject merchandise 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: (1) for merchandise 
exported by FHTK, the cash-deposit rate will be zero percent; (2) for 
Phil-Sino and Wo Hing, the cash-deposit rate will be 376.67 percent; 
(3) for all other PRC exporters which have not been found to be 
entitled to a separate rate, the cash-deposit rate will be the PRC-wide 
rate of 376.67 percent; and (4) for all other non-PRC exporters

[[Page 4760]]

of subject merchandise from the PRC, including Clipper and Golden 
Light, the cash-deposit rate will be the rate applicable to the PRC 
supplier of that exporter. These deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.
    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) (2001) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during these review periods. Pursuant to 19 CFR 
351.402(f)(3), failure to comply with this requirement, could result in 
the Department's presumption that reimbursement of antidumping duties 
occurred and the subsequent assessment of doubled antidumping duties.
    This notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely written notification of 
the return/destruction of APO materials or conversion to judicial 
protective order is hereby requested. Failure to comply with the 
regulations and the terms of an APO is a sanctionable violation.
    We are issuing and publishing this determination and notice in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 
351.210(c) (2001).

    Dated: January 21, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.

Appendix

Decision Memo

1. Rescission of Review of Clipper
2. Rescission of Review of Golden Light
3. Bona Fides of FHTK's Sale
4. Use of Facts Available
5. Valuation of Garlic Seed
6. Valuation of Garlic Sprouts
7. Valuation of Urea
8. Valuation of Potassium Fertilizer
9. Calculation of Surrogate Financial Ratios
10. Valuation of Electricity
11. Valuation of Cartons
[FR Doc. 03-2100 Filed 1-29-03; 8:45 am]
BILLING CODE 3510-DS-S