[Federal Register Volume 68, Number 82 (Tuesday, April 29, 2003)]
[Notices]
[Pages 22676-22680]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-10553]



[[Page 22676]]

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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 New Shipper Review

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

ACTION: Notice of Preliminary Results of Antidumping Duty New Shipper 
Review.

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SUMMARY: In response to a request from a new shipper, the Department of 
Commerce is conducting a new shipper review of the antidumping duty 
order on fresh garlic from the People's Republic of China. The period 
of review is November 1, 2001, through April 30, 2002. The review 
covers subject merchandise produced by two companies, of which one, the 
respondent company in this review, exported the merchandise to the 
United States. We have preliminarily determined that, based on the use 
of adverse facts available, the respondent sold subject merchandise to 
the United States at prices below normal value.
    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: April 29, 2003.

FOR FURTHER INFORMATION CONTACT: Edythe Artman, Office of AD/CVD 
Enforcement 3, 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.

SUPPLEMENTARY INFORMATION:

Background

    On June 26, 2002, the Department of Commerce (the Department) 
initiated a new shipper antidumping duty review of shipments of fresh 
garlic from the People's Republic of China (PRC) produced or exported 
by Hongda Dehydrated Vegetable Company (Hongda). See Fresh Garlic from 
the People's Republic of China: Rescission of New Shipper Antidumping 
Duty Review and Initiation of New Shipper Antidumping Duty Review, 67 
FR 44594 (July 3, 2002). The Department issued an antidumping duty 
questionnaire to Hongda on June 27, 2002.
    The Department received responses to sections A, C, and D of the 
Department's original and supplemental questionnaires from Hongda on 
August 5, 2002, and September 5, 2002, respectively. On September 27, 
2002, Hongda submitted a correction to its September 5, 2002, response. 
Hongda submitted a response to an additional supplemental questionnaire 
on December 2, 2002. On December 27, 2002, we extended the time limit 
for the preliminary results of review to no later than April 22, 2003. 
See Fresh Garlic from the People's Republic of China: Notice of 
Extension of Time Limit for the Preliminary Results of a New Shipper 
Antidumping Duty Review, 67 FR 79049.
    There were multiple transactions during the period of review (POR) 
in which Hongda acted as the exporter. In some of these transactions, 
Hongda produced the merchandise. In other transactions, another party 
supplied the merchandise that Hongda exported. We issued a supplemental 
questionnaire to Hongda on January 3, 2003, in which we requested that 
Hongda forward section D (request for factors-of-production 
information) and appendices of our original questionnaire to its 
supplier, Jin Xiang Jin Ma Fruit and Vegetable Products Co., Ltd. 
(Kima), so that Kima could respond to section D and specified items in 
appendix V of the questionnaire. On January 27, 2003, Hongda submitted 
a response to the supplemental questionnaire; it resubmitted this 
response on April 2, 2003, with modifications pertaining to treatment 
of business proprietary information. It stated in its response that 
Kima was unable to provide the requested information. On March 14, 
2003, we issued an antidumping questionnaire to Hongda's supplier, 
Kima, directly and requested that it respond to section D of the 
questionnaire. Kima did not respond to our request.
    On November 14, 2002, we requested comments on surrogate-country 
selection. We received comments from the petitioners, the Fresh Garlic 
Producers Association and its individual members, on November 27, 2002. 
On February 4, 2003, we requested that parties provide surrogate 
factors-of-production values by February 14, 2003, for consideration in 
our preliminary results. Hongda submitted publicly available factors-
of-production information on November 26, 2002, and the petitioners 
submitted factors-of-production information on
    February 14, 2003.

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 Bureau of Customs and Border Protection (Customs) 
to that effect.

Separate Rate

    In proceedings involving non-market-economy (NME) countries, the 
Department begins with a presumption that all companies within the 
country are subject to government control and thus should be assigned a 
single antidumping rate unless an exporter can affirmatively 
demonstrate an absence of government control, both in law (de jure) and 
in fact (de facto), with respect to its exports. In this review, Hongda 
has requested a separate company-specific rate.
    To establish whether a company is sufficiently independent in its 
export activities from government control to be entitled to a separate, 
company-specific rate, the Department analyzes the exporting entity in 
an NME country under the test established in the Final Determination of 
Sales at Less Than Fair Value: Sparklers from the People's Republic of 
China, 56 FR 20588, 20589 (May 6, 1991) (Sparklers), and amplified

[[Page 22677]]

by the Final Determination of Sales at Less Than Fair Value: Silicon 
Carbide from the People's Republic of China, 59 FR 22585, 22586-22587 
(May 2, 1994) (Silicon Carbide).
    The Department's separate-rate test is unconcerned, in general, 
with macroeconomic/ border-type controls (e.g., export licenses, 
quotas, and minimum export prices), particularly if these controls are 
imposed to prevent dumping. The test focuses, rather, on controls over 
the investment, pricing, and output decision-making process at the 
individual firm level. See, e.g., Certain Cut-to-Length Carbon Steel 
Plate from Ukraine: Final Determination of Sales at Less Than Fair 
Value, 62 FR 61754, 61757 (November 19, 1997); Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished, from the People's Republic 
of China: Final Results of Antidumping Duty Administrative Review, 62 
FR 61276, 61279 (November 17, 1997); and Honey from the People's 
Republic of China: Preliminary Determination of Sales at Less Than Fair 
Value, 60 FR 14725, 14726 (March 20, 1995).
    Hongda provided separate-rate information in its responses to our 
original and supplemental questionnaires. Accordingly, we performed a 
separate-rates analysis to determine whether this producer/exporter is 
independent from government control (see Notice of Final Determination 
of Sales at Less Than Fair Value: Bicycles From the People's Republic 
of China, 61 FR 56570 (April 30, 1996)).
1. Absence of De Jure Control
    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) an absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; (2) any legislative 
enactments decentralizing control of companies; and (3) any other 
formal measures by the government decentralizing control of companies.
    Hongda has placed on the record a number of documents to 
demonstrate absence of de jure control, including the ``Foreign Trade 
Law of the People's Republic of China'' and the ``Administrative 
Regulations of the People's Republic of China Governing the 
Registration of Legal Corporations.'' The Department has analyzed such 
PRC laws and found that they establish an absence of de jure control. 
See, e.g., Preliminary Results of New Shipper Review: Certain Preserved 
Mushrooms From the People's Republic of China, 66 FR 30695, 30696 (June 
7, 2001). We have no information in this proceeding that would cause us 
to reconsider this determination.
2. Absence of De Facto Control
    Typically the Department considers four factors in evaluating 
whether a respondent is subject to de facto governmental control of its 
export functions: (1) whether the export prices are set by, or subject 
to, the approval of a governmental authority; (2) whether the 
respondent has authority to negotiate and sign contracts, and other 
agreements; (3) whether the respondent has autonomy from the government 
in making decisions regarding the selection of its management; and (4) 
whether the respondent retains the proceeds of its export sales and 
makes independent decisions regarding disposition of profits or 
financing of losses. See Silicon Carbide at 22587.
    As stated in previous cases, there is some evidence that certain 
enactments of the PRC central government have not been implemented 
uniformly among different sectors and/or jurisdictions in the PRC. See 
Silicon Carbide at 22586-22587. Therefore, the Department has 
determined that an analysis of de facto control is critical in 
determining whether respondents are, in fact, subject to a degree of 
governmental control which would preclude the Department from assigning 
separate rates.
    According to Hongda, it is a privately owned company. It has 
asserted the following:
(1) There is no government participation in setting export prices; (2) 
its sales manager and authorized employees have the authority to bind 
sales contracts; (3) it does not have to notify any government 
authorities of its management selection; (4) there are no restrictions 
on the use of its export revenue; and (5) it is responsible for 
financing its own losses. Hongda's questionnaire responses do not 
suggest that pricing is coordinated among exporters. Furthermore, our 
analysis of the responses reveals no other information indicating the 
existence of government control. Consequently, we preliminarily 
determine that Hongda has met the criteria for the application of a 
separate rate.

Use of Adverse Facts Available

    In its August 5, 2002, response to our original questionnaire, 
Hongda reported sales of merchandise for which it both produced and 
exported the garlic and it reported sales of merchandise for which it 
had purchased the fresh garlic from Kima, its supplier, and exported 
the merchandise to the United States. In a supplemental questionnaire 
that we issued on August 27, 2002, we asked Hongda to provide 
additional information about Kima, including a certification from Kima 
stating that it had not exported subject merchandise to the United 
States during the period of the less-than-fair-value investigation. 
Hongda complied with these requests in its September 5, 2002, response 
to the questionnaire. On September 17, 2002, Hongda then confirmed that 
Kima was its only supplier (besides itself) of subject merchandise 
during the POR.
    In a supplemental questionnaire that we issued on November 14, 
2002, we asked Hongda to provide a detailed description of Kima's 
business activities and its relationship to Hongda. In addition, we 
asked Hongda to provide a detailed narrative describing Hongda's 
purchase of garlic from Kima including information specifically 
relating to Kima's factors of production. In previous submissions, 
Hongda had already reported its own factors of production. With respect 
to Kima's production of subject merchandise, Hongda had claimed certain 
factors should not be used because they were not ``relevant'' for the 
Kima/Hongda transactions. In its earlier responses, Hongda had also 
provided a new factor of production to reflect per-unit amounts 
purchased from Kima and had stated generally that it had used indirect 
labor for merchandise purchased from Kima, although it had offered no 
details pertaining to the nature of this labor (i.e., processing or 
packing). Thus, in light of numerous questions surrounding Kima and the 
factors of production covering the garlic Kima supplied Hongda, the 
Department requested, in a November 14, 2002, supplemental 
questionnaire, that Hongda provide answers to very specific questions 
pertaining to Kima and its merchandise.
    We asked Hongda that its factors information account for all stages 
beginning with the harvesting of the garlic at the farm and ending with 
possession of the garlic by Hongda. We asked further that Hongda 
specify the precise condition the degree of processing and packaging of 
the garlic at the time that it took possession of the garlic. We also 
asked Hongda to revise the narrative portions of its section D response 
to the questionnaire in order to reflect all processing that Hongda 
performed on the garlic it obtained from Kima. Finally, we asked Hongda 
to clarify all activities reflected in the factor amount it reported 
for indirect labor.
    In its December 2, 2002, response to the supplemental 
questionnaire, Hongda identified Kima as a company that

[[Page 22678]]

``grows and sells garlic.'' It provided no description of the sales 
process between Kima and Hongda other than to say that it ``simply 
purchased the garlic'' from Kima. It stated further that Kima had 
packed the garlic in the same manner that Hongda had packed its self-
produced garlic and that Kima had shipped the garlic directly to the 
port of export from its processing facility. It declined to revise its 
section D narrative responses on the basis that Kima shipped the 
processed garlic directly to the port. It stated, however, that the 
factor for indirect labor included labor Kima used for processing and 
packaging the garlic.
    We issued another supplemental questionnaire to Hongda on January 
3, 2003. We asked Hongda to resolve any inconsistencies and 
contradictions in its comments and questionnaire responses concerning 
the processing and packaging of the garlic that it purchased from Kima. 
We again asked for a step-by-step description of its purchase of the 
garlic from Kima. We asked that, in the description, Hongda identify 
the party performing each processing step. In light of its December 2, 
2002, response, we asked for information about the supplier's knowledge 
of the ultimate destination of the merchandise. We requested that 
Hongda forward section D and appendices of our original questionnaire 
to Kima so that Kima could respond. Finally, we asked for additional 
detailed information concerning the factor for the amount of garlic 
purchased from Kima and the indirect labor factor.
    In its January 27, 2003, response to the supplemental 
questionnaire, Hongda essentially undermined the validity of its 
December 2, 2002, response. It stated that the earlier response was 
incorrect and that Hongda took possession of the garlic from Kima 
before its export to the United States. It stated that it performed 
``further packing'' on the garlic in which it incurred labor costs 
before the merchandise was shipped to the United States. Hongda also 
stated that Kima was unwilling to provide details on its production 
process or its factors of production. In support of its response, 
Hongda submitted a certification from Kima to the effect that it was 
``unable'' to provide the requested information. There was no 
explanation about why Kima was ``unable'' to provide the requested 
information. Hongda provided an overview of its calculation for the 
indirect labor factor but did not identify specific tasks and allocate 
amounts to the tasks as we had requested in our supplemental 
questionnaire.
    On March 14, 2003, we issued a questionnaire directly to Kima, 
requesting that it respond to the section D questionnaire. The company 
did not respond to our request.
    Hongda has requested a new shipper review and submitted information 
to the Department with the expectation that the Department will 
calculate a dumping margin on its reported sales, despite the fact that 
it has not provided key information regarding the production and sales-
process data for those transactions. Despite its many opportunities to 
clarify the record, Hongda and its supplier have failed to provide 
necessary information to the Department. Without a complete response to 
its requests for information, the Department cannot calculate an 
accurate dumping margin on Hongda's sales of merchandise to the United 
States. This is particularly true in this case, given that the 
overwhelming majority of Hongda's exports to the United States were of 
subject merchandise produced by Kima.
    In a review involving an NME, the factors of production are crucial 
to determining normal value. As the Department has stated clearly in 
its recent Policy Bulletin covering new shipper reviews in general 
(found on the Department's Web site at http://ia.ita.doc.gov), it is 
the responsibility of the party requesting a new shipper review to 
provide all of the information necessary to the Department for 
initiating the new shipper review. It is furthermore the responsibility 
of the party requesting a new shipper review to provide the Department 
with the necessary information for it to calculate an accurate dumping 
margin. In other words, if a party desires to receive the benefits of a 
new shipper review, it has an affirmative obligation to provide the 
Department with the information necessary to calculate the new shipper 
dumping margin. This is particularly acute in NME cases, in which, 
absent complete factors-of-production information, the Department 
cannot calculate an accurate dumping margin.
    Section 776(a)(2) of the Tariff Act of 1930, as amended (the Act), 
provides that, if, in the course of an antidumping review, an 
interested party (A) withholds information that has been requested by 
the Department, (B) fails to provide such information in a timely 
manner or in the form or manner requested, (C) significantly impedes a 
proceeding under the antidumping statute, or (D) provides such 
information but the information cannot be verified, then the Department 
shall, subject to section 782(d) of the Act, use the facts otherwise 
available in reaching the applicable determination.
    Because Hongda did not provide the Department with the information 
necessary to calculate a margin on the overwhelming majority of its 
sales, because it did not provide an explanation as to why it could not 
provide the information for those sales, and because Kima, an 
``interested party'' to these transactions, did not provide the 
requested information, we preliminarily determine that the use of facts 
otherwise available is warranted to calculate a margin for all of 
Hongda's sales of subject merchandise during the POR.
    Section 782(e) of the Act provides that the Department ``shall not 
decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all the 
applicable requirements established by the administering authority'' if 
(1) the information is submitted by the deadline established for its 
submission, (2) the information can be verified, (3) the information is 
not so incomplete that it cannot serve as a reliable basis for reaching 
the applicable determination, (4) the interested party has demonstrated 
that it acted to the best of its ability in providing the information 
and meeting the requirements established by the Department with respect 
to the information, and (5) the information can be used without undue 
difficulties.
    For the Department to calculate an accurate margin in an NME 
proceeding, it needs valid factors of production. Hongda and Kima 
failed to provide the factors-of-production information for the Kima/
Hongda transactions. The Kima/Hongda transactions vastly eclipse the 
Hongda/Hongda transactions as a percentage of Hongda's POR sales. 
Therefore, we find that the submitted data is so incomplete that 
reliance on it would not result in an accurate measurement or 
reflection of Hongda's selling practices.
    Further, as detailed above, Hongda and Kima had ample time to 
submit the requested production process information and factors-of-
production data for this new shipper review, but they failed to do so. 
Hongda, with the cooperation of Kima, requested the new shipper review 
in this case. Their failure to provide the necessary information on the 
record is therefore a strong indication that they did not act to the 
best of their ability in providing the Department with the necessary 
information to calculate a margin.
    Finally, calculating a normal value using the incomplete factors-
of-production information submitted by

[[Page 22679]]

Hongda creates an undue difficulty for the Department. The large amount 
of missing information calls into question the potential manipulation 
of the Department's calculations through the selective reporting of 
factors of production. Absent confidence in the information provided, 
the Department cannot properly calculate a dumping margin using the 
limited, reported factors-of-production information. Thus, pursuant to 
sections 782(e)(3), (4), and (5) of the Act, the Department has not 
used the information Hongda has reported.
    Section 776(b) of the Act provides that, if the Department finds 
that an interested party has failed to cooperate by not acting to the 
best of its ability to comply with a request for information, the 
Department may use an inference that is adverse to the interests of 
that party in selecting from among the facts otherwise available. In 
addition, the Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act, H. Doc. 316, Vol. 1, 103d Cong. (1994) 
(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.'' See 
SAA at 870. It also instructs the Department, in employing adverse 
inferences, to consider `` * * * the extent to which a party may 
benefit from its own lack of cooperation.'' Id.
    As explained in detail below, the Department has applied total 
adverse facts available to Hongda. This is consistent with the 
Department's application of adverse facts available in past cases. See 
Freshwater Crawfish Tail Meat from the People's Republic of China; 
Notice of Final Results of Antidumping Duty Administrative Review, 68 
FR 19504 (April 21, 2003), and accompanying Issues and Decision 
Memorandum, Comment 7 (Crawfish). In Crawfish, we applied adverse facts 
available to the respondent, China Kingdom, when it failed to provide 
total production and factors of production for the POR in a timely 
manner and when we determined that it did not act to the best of its 
ability to comply with our request for information and it demonstrated 
a pattern of non-compliance in its reporting of factors-of-production 
information. We found that ``responsibility for submission of accurate 
factors of production lies with the respondent seeking a rate based on 
such information, and that failures, even if made by a supplier, may 
provide grounds for the application of adverse facts available.'' 
Crawfish at Comment 7.
    In Certain Cased Pencils from the People's Republic of China; Final 
Results and Partial Rescission of Antidumping Duty Administrative 
Review, 67 FR 48612 (July 25, 2002), and accompanying Issues and 
Decision Memorandum, Comment 10, citing also section 776(b) of the Act 
as well as 19 CFR 351.308(a), the Department explained that the 
language of the statute and regulation allow for the application of 
adverse inference when an ``interested party'' does not act to the best 
of its ability in responding to questionnaires. The Department 
explained that a supplier that refused to respond to requests for 
necessary information is an ``interested party'' to the review, and 
therefore application of adverse facts available was warranted. Id. 
Citing yet another case in support of the application of adverse facts 
available, the Department commented, `` * * * [a]s there is no 
acceptable explanation on the record for the supplier's failure to 
provide factor of production information, an adverse inference in 
applying facts available is warranted due to the supplier's failure to 
act to the best of its ability.'' Id. (citing Notice of Final 
Determination of Sales at Less Than Fair Value: Creatine Monohydrate 
From the People's Republic of China, 64 FR 71104, 71108 (December 20, 
1999)) (emphasis in original).
    In this case, the application of adverse facts available is 
warranted for the following reasons. First, as this is a new shipper 
review, the requesting party has an obligation to provide the 
Department with all of the necessary information to calculate an 
accurate margin. Because this is an NME case, that means that Hongda 
has an affirmative responsibility to provide the Department with the 
necessary factors-of-production information so that the Department may 
calculate a margin. It did not provide this necessary information and, 
therefore, it did not act to the best of its ability. Second, neither 
Hongda nor Kima provided any explanation of the reasons that such 
information could not be obtained and provided to the Department except 
for a single sentence stating that Kima was ``unable'' to provide the 
necessary information. Such an explanation is inadequate. Therefore, 
pursuant to sections 776(a)(1), 776(a)(2)(A), and 776(b) of the Act, we 
have preliminarily determined to use adverse facts otherwise available 
in reaching the preliminary results of review.
    An adverse inference may include reliance on information derived 
from the petition, the final determination in the investigation, any 
previous review, or any other information placed on the record. See 
section 776(b) of the Act. Section 776(c) of the Act provides, however, 
that, when the Department relies on secondary information rather than 
on information obtained in the course of a review, the Department 
shall, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. The SAA states 
that the independent sources may include published price lists, 
official import statistics and customs data, and information obtained 
from interested parties during the particular investigation or review. 
See SAA at 870. The SAA clarifies that ``corroborate'' means that the 
Department will satisfy itself that the secondary information to be 
used has probative value. Id. As discussed in Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished, from Japan, and Tapered 
Roller Bearings, Four Inches or Less in Outside Diameter, and 
Components Thereof, from Japan; Preliminary Results of Antidumping Duty 
Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996) (TRBs), to corroborate 
secondary information, the Department will, to the extent practicable, 
examine the reliability and relevance of the information used. If there 
are no independent sources from which the Department can derive 
calculated dumping margins, however, unlike other types of information 
such as input costs or selling expenses, the only source for margins is 
previous administrative determinations. This is the case in this 
review.
    Throughout the history of this proceeding, the highest rate ever 
calculated is 376.67 percent; it is currently the PRC-wide rate and was 
calculated based on information contained in the petition. See Notice 
of Final Determination of Sales at Less Than Fair Value: Fresh Garlic 
from the People's Republic of China, 59 FR 49058, 49059 (September 26, 
1994). The information contained in the petition was corroborated for 
the preliminary results of the first administrative 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, 68230 (December 27, 1996). Further, 
it was corroborated in subsequent reviews to the extent that the 
Department noted the history of corroboration and found that no 
information was received by the Department that warranted revisiting

[[Page 22680]]

the issue. See Fresh Garlic from the People's Republic of China: Final 
Results of Antidumping Administrative Review and Rescission of New 
Shipper Review, 67 FR 11283 (March 13, 2002). Similarly, no information 
has been presented in the current review that calls into question the 
reliability of this information. Thus, the Department finds that the 
information is reliable.
    With respect to the relevance aspect of corroboration, the 
Department stated in TRBs that it will ``consider information 
reasonably at its disposal as to whether there are circumstances that 
would render a margin irrelevant. Where circumstances indicate that the 
selected margin is not appropriate as adverse facts available, the 
Department will disregard the margin and determine an appropriate 
margin.'' See TRBs at 61 FR 57392. See also Fresh Cut Flowers from 
Mexico; Preliminary Results of Antidumping Duty Administrative Review, 
61 FR 6812, 6814 (February 22, 1996) (disregarding the highest margin 
in the case as best information available because the margin was based 
on another company's uncharacteristic business expense resulting in an 
extremely high margin). The rate used is the rate currently applicable 
to Hongda and all exporters subject to the PRC-wide rate. Further, 
there is no information on the administrative record of the current 
review that indicates the application of this rate would be 
inappropriate or that the margin is not relevant. Therefore, for all 
sales of subject merchandise exported by Hongda, we have applied, as 
adverse facts available, the 376.67 percent margin from a prior 
administrative review of this order and have satisfied the 
corroboration requirements under section 776(c) of the Act. See 
Persulfates from the People's Republic of China: Preliminary Results of 
Antidumping Duty Administrative Review, 66 FR 18439, 18441 (April 9, 
2001) (employing a petition rate used as adverse facts available in a 
previous segment as adverse facts available in the current review).

Preliminary Results of the Review

    As a result of the application of adverse facts available, we 
preliminarily determine that a dumping margin of 376.67 percent exists 
for the period November 1, 2001, through April 30, 2002, on Hongda's 
exports of fresh garlic.
    An interested party may request a hearing within 30 days of 
publication of these preliminary results. Any hearing, if requested, 
will be held 37 days after the date of publication, or the first 
business day thereafter, unless the Department alters the date per 19 
CFR 351.310(d). Interested parties may submit case briefs and/or 
written comments no later than 30 days after the date of publication of 
these preliminary results of review. Rebuttal briefs and rebuttals to 
written comments, limited to issues raised in the case briefs and 
comments, may be filed no later than 35 days after the date of 
publication of this notice. Parties who submit argument in this 
proceeding are requested to submit with the argument: (1) a statement 
of the issue, (2) a brief summary of the argument, and (3) a table of 
authorities.
    The Department will publish the final results of this new shipper 
review, including the results of its analysis of issues raised in any 
case or rebuttal brief, within 90 days of publication of this notice. 
See 19 CFR 351.214(i)(1).

Assessment Rates

    Upon completion of this new shipper review, the Department will 
determine, and Customs shall assess, antidumping duties on all 
appropriate entries. The Department will issue appropriate assessment 
instructions directly to Customs upon completion of this review. If 
these preliminary results are adopted in our final results of review, 
we will direct Customs to assess the resulting rate against the entered 
customs value for the subject merchandise on each of Hongda's 
importer's/customer's entries during the POR.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the final results of this new shipper 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 subject 
merchandise grown by Hongda or Jin Xiang Jin Ma Fruit and Vegetable 
Products Co. Ltd. (Kima) and exported by Hongda, the cash-deposit rate 
will be that established in the final results of this review; (2) for 
all other subject merchandise exported by Hongda, the cash-deposit rate 
will be the PRC countrywide rate, which is 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 countrywide rate; 
and (4) for all non-PRC exporters of subject merchandise, the cash-
deposit rate will be the rate applicable to the PRC supplier of that 
exporter. These deposit requirements, when imposed, shall remain in 
effect until publication of the final results of the next 
administrative review.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) 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 and publishing these preliminary results of review 
in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.

    Dated: April 22, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 03-10553 Filed 4-28-03; 8:45 am]
BILLING CODE 3510-DS-S