[Federal Register Volume 72, Number 133 (Thursday, July 12, 2007)]
[Notices]
[Pages 38057-38060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13552]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-831


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

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

EFFECTIVE DATE: July 12, 2007.
SUMMARY: The Department of Commerce (``Department'') has determined 
that five requests for new shipper reviews (``NSRs'') of the 
antidumping duty order on fresh garlic from the People's Republic of 
China (``PRC''), received on May 17, May 21, and May 28, 2007, 
respectively, meet the statutory and regulatory requirements for 
initiation. The period of review (``POR'') for the five NSRs which the 
Department is initiating is November 1, 2006, through April 30, 2007.
    Additionally, the Department has extended the deadline for 
initiating the new shipper review (``NSR'') requested submitted by 
Henan Weite Industrial (``Weite'') on April 30, 2007, by thirty days to 
July 30, 2007.

[[Page 38058]]


FOR FURTHER INFORMATION CONTACT: Julia Hancock, Michael Holton, and 
Paul Walker, AD/CVD Operations, Office 9, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, D.C. 20230; telephone: 
(202) 482-1394, (202) 482-1324, and (202) 482-0413, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The notice announcing the antidumping duty order on fresh garlic 
from the PRC was published in the Federal Register on November 16, 
1994. See Notice of Antidumping Duty Order: Fresh Garlic from the 
People's Republic of China, 59 FR 59209 (November 16, 1994) 
(``Order'').\1\ On April 30, May 17, May 21, and May 28, 2007, pursuant 
to section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (``the 
Act''), and 19 CFR 351.214(c), the Department received six new shipper 
review (``NSR'') requests from Henan Weite Industrial (``Weite''), 
Shandong Chenhe International Trading Co., Ltd. (``Chenhe''), Qingdao 
Tiantaixing Foods Co., Ltd. (``QTF''), Hebei Golden Bird Trading Co., 
Ltd. (``Golden Bird''), Jining Yongjia Trade Co., Ltd. (``Yongjia''), 
and Shenzhen Greening Trading Co., Ltd. (``Greening''), respectively. 
Weite, Chenhe, and Greening certified that they are both the producer 
and exporter of the subject merchandise upon which the requests for 
NSRs were based. QTF, Golden Bird, and Jining certified that they were 
the exporters of the subject merchandise upon which the requests for a 
NSR were based.
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    \1\ Therefore, a request for a NSR based on the semi-annual 
anniversary month, May, was due to the Department by the final day 
of May 2007. See 19 CFR 351.214(d)(1).
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    On June 11, 2007, the Fresh Garlic Producers Association and its 
individual members, Christopher Ranch L.L.C., the Garlic Company, 
Valley Garlic, and Vessey and Company, Inc., (collectively, 
``Petitioners'') submitted comments requesting that the Department 
reject the NSR requests from Weite and QTF. Specifically, Petitioners 
state that both Weite and QTF, which requested NSR reviews, are 
respondents in the twelfth administrative review (``12\th\ AR'') of 
this Order. Accordingly, Petitioners request that the Department reject 
Weite's and QTF's respective NSR request because: (1) Each exporter's 
sale is already covered by the 12\th\ AR; (2) neither exporter made a 
U.S. sale during the POR for this NSR; (3) neither exporter has 
provided justification for expanding the POR for this NSR to cover its 
respective sale; (4) Weite's claim that it did not expect, in November 
2006, to be treated as a section A respondent in the 12\th\ AR is not 
credible; (5) each exporter's decision in November 2006 to request a 
regular administrative review versus a NSR was likely based on the 
expectation that (a) it would participate in the 12\th\ AR as a section 
A respondent, and (b) it would receive a low dumping margin in the 
12\th\ AR based on the relatively low dumping rates it expected to be 
issued for the few 12\th\ AR mandatory respondents; (6) the Department 
has already stated that it does not have the resources to review every 
exporter; and (7) allowing these exporters the opportunity request both 
a NSR and administrative review allows respondents to manipulate the 
system.
    On June 12, 2007, the Department issued letters to Golden Bird, 
QTF, and Yongjia requesting further information that was not contained 
within their NSR requests. Additionally, on June 13, 2007, Petitioners 
submitted comments requesting that the Department reject the NSR 
requests of Chenhe, QTF, Golden Bird, and Yongjia. Specifically, 
Petitioners note that each requestor, Chenhe, QTF, Golden Bird and 
Yongjia, did not serve their respective NSR request on Petitioners, 
pursuant to 19 CFR 351.303(f)(1)(ii). Additionally, Petitioners argue 
that the Department should reject the new shipper requests because: (1) 
Chenhe's request does not contain a certification of counsel, pursuant 
to 19 CFR 351.303(g)(2); and (2) Golden Bird's, QTF's, and Yongjia's 
respective requests contain certifications that incorrectly state that 
their consultant is employed by the respective company.
    On June 14, 2007, Golden Bird, QTF, and Yongjia submitted 
certifications, pursuant to 19 CFR 351.214(b)(2)(ii)(B), from each of 
their respective producers, that their respective producers had never 
been affiliated with any exporter or producer who exported subject 
merchandise to the United States. Additionally, on June 14, 2007, QTF 
and Yongjia submitted revised public versions of their respective May 
21, 2007, NSR requests.
    On June 14, 2007, QTF submitted rebuttal comments in response to 
Petitioners' June 11, 2007, letter, requesting that the Department 
reject QTF's and Weite's respective NSR requests. Specifically, QTF 
argues that Petitioners' argument for rejecting its NSR request is 
without merit because the entry date of its sale is within the POR for 
this NSR. Additionally, QTF states that, pursuant to 19 CFR 351.214(j), 
QTF has the option to participate in this NSR since QTF still has the 
option to withdraw its request for a review in the 12\th\ AR. 
Accordingly, QTF argues that there is no basis for the Department to 
not initiate a NSR of its sale.
    On June 19, 2007, QTF, Golden Bird, and Jining submitted letters 
notifying the Department that they had served public versions of their 
respective NSR requests on Petitioners.
    On June 21, 2007, Chenhe submitted rebuttal comments in response to 
Petitioners' June 13, 2007, letter, requesting that the Department 
reject Chenhe's NSR request. Specifically, Chenhe argues that it served 
Petitioners with a public version of its NSR request when it was 
notified of this oversight by the Department. Additionally, Chenhe 
states that the Department has never terminated a review where the 
service to an interested party was later remedied. See Notice of Final 
Results of Antidumping Duty Administrative Reviews and Final Rescission 
and Partial Rescission of Antidumping Duty Administrative Reviews: 
Heavy Forged Hand Tools, Finished and Unfinished, With or Without 
Handles from the People's Republic of China, 71 FR 54269 (September 14, 
2006) and accompanying Issues and Decision Memorandum at Comment 4. 
Moreover, Chenhe contends that the U.S. Court of Appeals for the 
Federal Circuit (``CAFC''), in PAM, found that ``the failure of a party 
to provide notice as required by such a regulation does not prejudice 
the non-notified party.'' See PAM S.p.A. v. United States, 463 F. 3d 
1345, 1348 (CAFC 2006) (``PAM''). Accordingly, Chenhe argues that 
Petitioners' request to not initiate Chenhe's NSR request because 
Petitioners were not served is without merit. Furthermore, Chenhe 
contends that Petitioners' argument that Chenhe's NSR request did not 
contain a certification of counsel is incorrect because page 3 of 
Chenhe's request does contain a certification of counsel, pursuant to 
19 CFR 351.303(g)(2).
    On June 26, 2007, the Department issued memoranda documenting its 
telephone requests to representatives of Chenhe, QTF, Golden Bird, and 
Jining that they serve Petitioners a public version of their respective 
NSR requests. See Memorandum to the File, from Julia Hancock, Senior 
Case Analyst, RE: Fresh Garlic from the People's Republic of China, 
Subject: Phone Call with Mark Pardo, (June 26, 2007); Memorandum to the 
File, from Julia Hancock, Senior Case Analyst, RE: Fresh Garlic from 
the People's Republic of China, Subject:

[[Page 38059]]

Phone Call with Jasmine Zhao, (June 26, 2007).
    On June 29, 2007, the Department issued a memorandum stating that 
the Department had received a database query from U.S. Customs and 
Border Protection (``CBP'') that showed inconsistencies in Weite's 
entry date. See Memorandum to the File, through Alex Villanueva, 
Program Manager, from Julia Hancock, Senior Case Analyst, RE: Fresh 
Garlic from the People's Republic of China, Subject: U.S. Customs and 
Border Protection Module Run for New Shipper Reviews, (June 29, 2007) 
(``CBP Memo'').
    Pursuant to section 751(a)(2)(B)(i)(I) of the Act, 19 CFR 
351.214(b)(2)(i) and 351.214(b)(2)(ii)(A) (for Golden Bird, QTF, and 
Jining), Weite, Chenhe, QTF, Golden Bird, Jining, and Greening 
certified that they did not export fresh garlic to the United States 
during the period of investigation (``POI''). In addition, pursuant to 
section 751(a)(2)(B)(i)(II) of the Act and 19 CFR 
351.214(b)(2)(iii)(A), Weite, Chenhe, QTF, Golden Bird, Jining, and 
Greening certified that, since the initiation of the investigation, 
they have never been affiliated with any PRC exporter or producer who 
exported fresh garlic to the United States during the POI, including 
those not individually examined during the investigation. As required 
by 19 CFR 351.214(b)(2)(iii)(B), Weite, Chenhe, QTF, Golden Bird, 
Jining, and Greening also certified that their export activities were 
not controlled by the central government of the PRC.
    In addition to the certifications described above, pursuant to 19 
CFR 351.214(b)(2)(iv), Weite, Chenhe, QTF, Golden Bird, Jining, and 
Greening submitted documentation establishing the following: (1) The 
date on which Weite, Chenhe, QTF, Golden Bird, Jining, and Greening 
first shipped fresh garlic for export to the United States and the date 
on which the fresh garlic was first entered, or withdrawn from 
warehouse, for consumption; (2) the volume of their first shipment;\2\ 
and (3) the date of their first sale to an unaffiliated customer in the 
United States.
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    \2\ Weite, Chenhe, QTF, Golden Bird, Jining, and Greening made 
no subsequent shipments to the United States.
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    The Department conducted CBP database queries in an attempt to 
confirm that Weite, Chenhe, QTF, Golden Bird, Jining, and Greening's 
shipments of subject merchandise had entered the United States for 
consumption and that liquidation of such entries had been properly 
suspended for antidumping duties. The Department also examined whether 
the CBP data confirmed that such entries were made during the NSR POR.

Analysis of Comment Received

A. Weite and QTF Entries During NSR

    We disagree with Petitioners that because Weite and QTF are 
currently participating as separate rate respondents in the 12\th\ AR, 
their respective NSR requests should be rejected. While the Department 
recognizes that both Weite and QTF are currently participating as 
separate rate respondents in the twelfth administrative review, the 
evidence submitted by Weite shows that Weite exported merchandise to 
the United States that entered during the POR of the NSR. However, the 
Department recognizes that other record evidence does not confirm that 
the entry date provided by Weite is within the POR of NSR. See CBP 
Memo, at 1. In Honey from the PRC, the Department extended the time 
limit to initiate the NSR in order for Shanghai Bloom International 
Trading Co., Ltd. (``Shanghai Bloom'') to explain or resolve 
inconsistencies in Shanghai Bloom's entry documentation. See Notice of 
Initiation of New Shipper Antidumping Duty Review: Honey from the 
People's Republic of China, 71 FR 52764, 52765 (September 7, 2006) 
(``Honey from the PRC''). As in Honey from the PRC, because there are 
certain discrepancies between the documentation provided by Weite and 
other record evidence obtained from the CBP database, the Department 
has determined to provide Weite an opportunity to explain or resolve 
these inconsistencies. Accordingly, pursuant to 19 CFR 351.302(b), the 
Department is extending the deadline to initiate Weite's NSR until July 
30, 2007.
    With respect to QTF, the Department finds that the record evidence 
shows that QTF exported merchandise to the United States that entered 
during the POR of the NSR. Therefore, on the basis of this evidence, 
the Department determines to initiate this NSR requested by QTF, 
pursuant to 19 CFR 351.214(g)(1)(i). However, the Department notes that 
the record evidence also shows that QTF did not export merchandise to 
the United States that entered during the period of the 12\th\ AR, 
which is November 1, 2005, to October 31, 2006. Accordingly, the 
Department intends to examine this issue in the context of the 12\th\ 
AR and determine whether to rescind that review of QTF in light of the 
evidence showing that QTF did not have an entry during the period of 
the 12\th\ AR.
    We also disagree with Petitioners that a NSR request from Weite and 
QTF should be rejected because neither exporter made a U.S. sale during 
the NSR period. The Department finds that there is record evidence 
indicating that Weite and QTF exported subject merchandise to the 
United States during the POR of the NSR.
    Petitioners also argue that the Department should reject Weite and 
QTF's NSR requests because neither exporter has provided justification 
for expanding the NSR period to cover its respective sales. In this 
case, as discussed above, it appears that the merchandise exported by 
QTF entered the United States during the NSR period. Therefore, an 
expansion of the NSR period would not be necessary given that the 
normal suspension of liquidation instruction for this NSR period would 
include QTF's entry. Furthermore, with respect to Weite, because the 
Department has extended the deadline to initiate Weite's NSR, 
Petitioners' argument regarding the timing of Weite's sale will 
continue to be considered by the Department.

B. Chenhe, QTF, Golden Bird, and Yongjia Service of NSR Requests

    Petitioners argue that the Department should reject the NSR 
requests from Chenhe, QTF, Golden Bird and Yongjia because they did not 
serve their respective new shipper requests on Petitioners, pursuant to 
19 CFR 351.303(f)(1)(ii). Although we agree with Petitioners that 
Chenhe, QTF, Golden Bird and Yongjia did not originally serve 
Petitioners with their respective NSR requests, we disagree that the 
NSR requests should be rejected on this basis. The Department finds 
that the initial failure to serve Petitioners did not result in 
substantial prejudice, such that initiation of the NSRs should be 
denied. On June 6, 2007, the Department faxed copies of all four NSR 
requests to Petitioners since all four NSR requests were submitted 
prior to the last day of the anniversary month. Accordingly, the 
Department finds that Petitioners had sufficient time to review each of 
these four NSR requests and provide comments for the Department to 
consider before the initiation deadline of June 30, 2007. On June 20, 
2007, the Department notified Chenhe, QTF, Golden Bird, and Yongjia 
that each were required to serve their individual request on 
Petitioners. The respective counsel/representative for Chenhe, QTF, 
Golden Bird, and Yongjia submitted letters notifying the Department 
that they had served those companies' respective request on 
Petitioners. See Chenhe's Response to Petitioners'

[[Page 38060]]

Claims to Reject Chenhe's New Shipper Review Request, (June 21, 2007) 
at 2; Letter from Trade Bridge Consulting Services, (June 19, 2007). 
Thus, the Department finds that Petitioners did not suffer substantial 
prejudice due to these companies' initial failure to serve their 
individual requests upon Petitioners and that the lack of service was 
rectified in a timely fashion for these companies. See PAM, 463 F. 3d 
1345, 1348 (CAFC 2006).

C. Chenhe, Golden Bird, QTF and Yongjia Certifications

    Petitioners argue that the Department should reject the NSR request 
from Chenhe because it does not contain a certification of counsel, 
pursuant to 19 CFR 351.303(g)(2). However, the Department finds that on 
page 3 of Chenhe's NSR request, Chenhe did include the certification of 
counsel, pursuant to 19 CFR 351.303(g)(2). Therefore, the Department is 
not rejecting Chenhe's NSR on the basis that it lacks a certification.
    Finally, Petitioners argue that the Department should reject the 
NSR requests from Golden Bird, QTF, and Yongjia because they did not 
submit certifications from each of their respective producers that 
their respective producers had never been affiliated with any exporter 
or producer who exported subject merchandise to the United States. On 
June 14, 2007, Golden Bird, QTF, and Yongjia submitted certifications 
from each of their respective producers that they had never been 
affiliated with any exporters or producers who exported the subject 
merchandise. Therefore, the Department is not rejecting the NSR 
requests of Golden Bird, QTF, and Yongjia on the basis that they lack 
certifications.

Initiation of New Shipper Reviews

A. Chenhe, QTF, Golden Bird, Jining, and Greening

    Pursuant to section 751(a)(2)(B) of the Act and 19 CFR 
351.214(d)(1), the Department finds that Chenhe and Greening meet the 
threshold requirements for initiation of a NSR for the shipment of 
fresh garlic from the PRC they produced and exported. See Memorandum to 
File from Julia Hancock, Senior Analyst, through Alex Villanueva, 
Program Manager, Office 9, Initiation of AD New Shipper Review: Fresh 
Garlic from the People's Republic of China (A-570-831), (June 29, 2007) 
(``Garlic Memo''). Additionally, pursuant to section 751(a)(2)(B) of 
the Act and 19 CFR 351.214(d)(1), the Department finds that QTF, Golden 
Bird, and Jining meet the threshold requirements for initiation of a 
NSR for the shipment of fresh garlic from the PRC they exported for 
their respective garlic producer. See Garlic Memo.

B. Weite

    Pursuant to 19 CFR 351.302(b), the Department finds that further 
time is needed to determine whether or not to initiate Weite's NSR 
request because of certain discrepancies between Weite's NSR request 
and other record evidence. Accordingly, in accordance with 19 CFR 
351.302(b), the Department has extended the deadline to initiate 
Weite's NSR by thirty days to July 30, 2007.
    The POR for the five NSRs is November 1, 2006, through April 30, 
2007. See 19 CFR 351.214(g)(1)(ii)(A). The Department intends to issue 
the preliminary results of these reviews no later than 180 days from 
the date of initiation, and final results of these reviews no later 
than 270 days from the date of initiation. See section 751(a)(2)(B)(iv) 
of the Act. Interested parties requiring access to proprietary 
information in this NSR should submit applications for disclosure under 
administrative protective order in accordance with 19 CFR 351.305 and 
351.306. This initiation and notice are published in accordance with 
section 751(a)(2)(B) of the Act and 19 CFR 351.214 and 
351.221(c)(1)(i).

    Dated: June 29, 2007.
Stephen J. Claeys,
Deputy Assistant Secretary for Import Administration.
[FR Doc. E7-13552 Filed 7-11-07; 8:45 am]
BILLING CODE 3510-DS-S