[Federal Register Volume 69, Number 189 (Thursday, September 30, 2004)]
[Notices]
[Pages 58392-58393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-2446]


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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 New Shipper Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On July 6, 2004, the Department of Commerce published the 
preliminary results of new shipper review of the antidumping duty order 
on fresh garlic from the People's Republic of China (PRC). The period 
of review (POR) is November 1, 2002, through October 31, 2003.
    We invited interested parties to comment on our preliminary 
results. We did not make any changes to the margin calculation for the 
final results based on comments submitted by interested parties. We 
did, however, use a different surrogate value for the cost of leasing 
land. The final dumping margin for this review is listed in the ``Final 
Results of Review'' section below.

EFFECTIVE DATE: September 30, 2004.

FOR FURTHER INFORMATION CONTACT: Janis Kalnins or Minoo Hatten, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone (202) 482-1392 or (202) 482-1690, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On January 7, 2004, we published in the Federal Register the Notice 
of Initiation of New Shipper Antidumping Duty Review: Fresh Garlic from 
the People's Republic of China (69 FR 903) for entries of subject 
merchandise grown by Kaifeng Wangtun Fresh Vegetables Factory (Wangtun) 
and exported by Jinxiang Shanyang Freezing Storage Co., Ltd. 
(Shanyang). The POR is November 1, 2002, through October 31, 2003.
    On July 6, 2004, the Department of Commerce (the Department) 
published the preliminary results of this new shipper review. See Fresh 
Garlic from the People's Republic of China: Preliminary Results of 
Antidumping Duty New Shipper Review, 69 FR 40607 (July 6, 2004) 
(Preliminary Results). We invited parties to comment on our preliminary 
results. We received timely comments from Shanyang and from the Fresh 
Garlic Producers Association and its individual members (collectively, 
the petitioners).
    We have conducted this review in accordance with section 751 of the 
Tariff Act of 1930, as amended (the Act) and 19 CFR 351.214.

Scope of the Order

    The products subject to this 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, the 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 U.S. Customs and Border Protection (CBP) to that 
effect.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties in 
this review are addressed in the Issues and Decision Memorandum, dated 
September 24, 2004 (Decision Memo), which is hereby adopted by this 
notice. A list of the issues which parties raised and to which we 
respond in the Decision Memo is attached to this notice as an Appendix. 
The Decision Memo is a public document on file in the Central Records 
Unit (CRU), Main Commerce Building, Room B-099, and is accessible on 
the Web at http://www.ia.ita.doc.gov/frn. The paper copy and electronic 
version of the memorandum are identical in content.

Separate Rates

    In the Preliminary Results, we determined that Shanyang met the 
criteria for the application of a separate rate. See Preliminary 
Results, 69 FR at 40608. We have not received any information since the 
issuance of the Preliminary Results that provides a basis for 
reconsideration of this determination.

Changes Since the Preliminary Results

    We did not make any changes to the margin calculation for the final 
results based on comments submitted by interested parties. We did, 
however, use a different surrogate value for the cost of leasing land 
based on data collected in the final results of the immediately 
preceding new shipper reviews. See Fresh Garlic from the People's 
Republic of China: Final Results of Antidumping Duty New Shipper 
Reviews, 69 FR 46498 (August 3, 2004) (11/02 to 4/03 NSRs) and the 
memorandum from Janis Kalnins to The File entitled ``Analysis for the 
Final Results of the New Shipper Review of the Antidumping Duty Order 
on Fresh Garlic from the People's Republic of China: Jinxiang Shanyang 
Freezing Storage Co., Ltd., and Wangtun Fresh Vegetable Factory,'' 
dated September 24, 2004.

The Use of Facts Otherwise Available

    Section 776(a)(2) of 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

[[Page 58393]]

but the information cannot be verified, then the Department shall, 
subject to sections 782(d) and (e) of the Act, use the facts otherwise 
available in reaching the applicable determination.
    For the reasons outlined in the Preliminary Results at 69 FR 40609, 
we have continued to apply facts available in the final results of 
review for calculating the labor hours worked by Shanyang for 
processing activities and by Wangtun for production activities.
    For the final results of this new shipper review, we have clarified 
that the use of facts available is appropriate for calculating a 
consumption factor for water. Shanyang did not report a consumption 
factor for the water used in the production of subject merchandise. For 
the preliminary results of review we calculated a consumption factor 
for water using the pump specifications for the model type and 
corresponding water flow rate (based on water depth) used by Shanyang 
in the production of garlic during the POR as reported in its 
supplemental questionnaire response. See the memorandum from Brian 
Ellman to The File entitled ``Analysis for the Preliminary Results of 
the New Shipper Review of the Antidumping Duty Order on Fresh Garlic 
from the People's Republic of China: Jinxiang Shanyang Freezing Storage 
Co., Ltd., and Wangtun Fresh Vegetable Factory,'' dated June 28, 2004.
    In its August 5, 2004, case brief, Shanyang attempted to submit new 
factual information for the Department to use in our calculation of a 
water-usage rate for the final results. We rejected Shanyang's case 
brief because it contained untimely new factual information, and 
allowed it to submit a redacted case brief (less any new factual 
information).
    In its case brief, Shanyang argues that the flow rate used by the 
Department in its calculation of a water-usage rate is incorrect 
because the flow rate is not based on the actual depth of the water 
table at Wangtun's fields. Moreover, Shanyang argues that the 
Department should correct its calculation for a water-usage rate by 
requesting data from Wangtun demonstrating the actual depth at which 
Wangtun's water pumps operated during the POR.
    Prior to and during verification Shanyang had the opportunity to 
inform the Department that its actual water depth was different from 
the water depth indicated in its questionnaire response. As such, we 
determine that, in accordance with section 776(a)(2)(B) of the Act, the 
use of facts available is appropriate for calculating a consumption 
factor for water for the final results. Therefore, we will continue to 
calculate a consumption factor for water using the pump specifications 
for the model type used by Shanyang as indicated in its questionnaire 
response and as verified by the Department. For a complete discussion 
of this issue see Comment 1 of the Decision Memo.

Final Results of the New Shipper Review

    For the final results of the new shipper review the following 
dumping margin exists for the period November 1, 2002, through October 
31, 2003:

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
              Grower and exporter combination                 percentage
                                                                margin
------------------------------------------------------------------------
Grown by Kaifeng Wangtun Fresh Vegetables Factory and              29.04
 Exported by Jinxiang Shanyang Freezing Storage Co., Ltd...
------------------------------------------------------------------------

Duty Assessment and Cash-Deposit Requirements

    The Department will determine, and CBP shall assess, antidumping 
duties on all appropriate entries. The Department will issue 
appropriate assessment instructions directly to CBP within 15 days of 
publication of the final results of this review. Further, the following 
cash-deposit requirements will be effective upon publication of the 
final results of this new shipper review for shipments of the subject 
merchandise entered, or withdrawn from warehouse, for consumption on or 
after the publication date of the final results, as provided by section 
751(a)(2)(C) of the Act: (1) For subject merchandise grown by Kaifeng 
Wangtun Fresh Vegetables Factory, and exported by Jinxiang Shanyang 
Freezing Storage Co., Ltd., the cash-deposit rate will be the rate 
listed above; (2) for all other subject merchandise exported by 
Jinxiang Shanyang Freezing Storage Co., Ltd., the cash-deposit rate 
will be the PRC-wide rate, which is 376.67 percent; (3) for all other 
PRC exporters of subject merchandise 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; (4) for all non-PRC exporters of subject 
merchandise, the cash-deposit rate will be the rate applicable to the 
PRC exporter that supplied that exporter. These deposit requirements, 
when imposed, shall remain in effect until publication of the final 
results of the next administrative review.

Notification to Interested Parties

    This notice serves as a final 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 the review period. 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 as explained in the administrative protective order itself. 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.
    Bonding is no longer permitted to fulfill security requirements for 
shipments from Shanyang of fresh garlic from the PRC entered, or 
withdrawn from warehouse, for consumption in the United States on or 
after the publication of this notice in the Federal Register.
    These final results of the new shipper review and notice are issued 
and published in accordance with sections 751(a)(2)(B) and 777(i) of 
the Act.

    Dated: September 24, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.

Appendix:

    Decision Memo
    1. Valuation of Water
    2. Selling, General, and Administrative Expenses and Profit 
Calculation
    3. Valuation of Leased Land
    4. Valuation of Upstream Input Factors

 [FR Doc. E4-2446 Filed 9-29-04; 8:45 am]
BILLING CODE 3510-DS-P