[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Notices]
[Pages 34251-34253]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13632]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic from the People's Republic of China: Final Results 
and Partial Rescission of the 12th Administrative Review

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

EFFECTIVE DATE: June 17, 2008.

FOR FURTHER INFORMATION CONTACT: Matthew Renkey, AD/CVD Operations, 
Office 9, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-2312.

SUPPLEMENTARY INFORMATION:

Case History

    On December 10, 2007, the Department of Commerce (the 
``Department'') published in the Federal Register the preliminary 
results of the administrative review of the antidumping duty order on 
fresh garlic from the People's Republic of China (``PRC''). See Fresh 
Garlic from the People's Republic of China: Notice of Preliminary 
Results and Preliminary Partial Rescission of the Twelfth 
Administrative Review, 72 FR 69652 (December 10, 2007) (``Preliminary 
Results'') Since the Preliminary Results, the following events have 
occurred.
    On January 9, 2008, The Fresh Garlic Producers Association: 
Christopher Ranch L.L.C.; The Garlic Company; Valley Garlic; and Vessey 
and Company, Inc. (``Petitioners''), Jinxiang Dong Yun Freezing Storage 
Co., Ltd. (``Dong Yun''), Shanghai LJ International Trading Co., Ltd. 
(``Shanghai LJ''), and Qingdao Saturn International Trade Co., Ltd. 
(``Qingdao Saturn'') submitted case briefs. After reviewing the case 
briefs, the Department instructed Dong Yun and Shanghai LJ to re-file 
their case briefs because they contained untimely new factual 
information. Dong Yun and Shanghai LJ filed the final versions of their 
redacted case briefs on January 16, 2008. Also on January 16, 2008, the 
Petitioners, Dong Yun, and Shanghai LJ submitted rebuttal briefs. On 
January 23, 2008, the Department extended the time limit for completion 
of the final results of this administrative review by 60 days. See 
Fresh Garlic from the People's Republic of China: Extension of Time 
Limit for Final Results of the Twelfth Administrative Review, 73 FR 
16640 (March 28, 2008). On April 10, 2008, the Department conducted a 
public hearing, and counsel for the Petitioners, Dong Yun, and Qingdao 
Saturn participated.

Scope Of The Order

    The products covered by 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, our written description of the scope 
of this order is dispositive. In order to be excluded from the 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 CBP to that effect.

Analysis Of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this proceeding and to which we have responded are listed in the 
Appendix to this notice and addressed in the Issues and Decision 
Memorandum (``Final Decision Memo''), which is hereby adopted by this 
notice. Parties can find a complete discussion of the issues raised in 
this administrative review and the corresponding recommendations in 
this public memorandum which is on file in the Central Records Unit 
(``CRU''), Room 1117 of the main Department building. In addition, a 
copy of the Final Decision Memo can be accessed directly on our website 
at http://www.ia.ita.doc.gov/. The paper copy and electronic version of 
the Final Decision Memo are identical in content.

Changes Since The Preliminary Results

    Based on a review of the record as well as comments received from 
parties regarding our Preliminary Results, we have made revisions to 
the margin calculations for Dong Yun and Shanghai LJ for the final 
results. For all changes to the calculations for Dong Yun and Shanghai 
LJ, see the Final Decision Memo and the company-specific analysis 
memoranda.

Adverse Facts Available

    Section 776(a)(2) of the Tariff Act of 1930, as amended (``the 
Act'') provides that if 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, 
subject to subsections 782(c)(1) and (e) of the Act; (C) significantly 
impedes a determination under the antidumping statute; or (D) provides 
such information but the information cannot be verified, the Department 
shall, subject to subsection 782(d) of the Act, use facts otherwise 
available in reaching the applicable determination.
    Furthermore, 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 information that is adverse to 
the interests of that party as facts otherwise available. Adverse 
inferences are appropriate ``to ensure that the party does not obtain a 
more favorable result by failing to cooperate than if it had cooperated 
fully.'' See Statement of Administrative Action (``SAA'') accompanying 
the URAA, H.R. Doc. No. 316, 103d Cong., 2d Session at 870 (1994). 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.
    In the Preliminary Results, the Department assigned a rate based on 
the use of total adverse facts available (``AFA'') to the PRC-Wide 
Entity, including Huaiyang Hongda Dehydrated Vegetable Company 
(``Huaiyang

[[Page 34252]]

Hongda''), and 19 other companies\1\, because they failed either to 
respond to the Department's two quantity and value questionnaires, or 
in the case of Huaiyang Hongda, to the Department's two supplemental 
questionnaires. See Preliminary Results, 73 FR at 69656-57. As no 
parties provided comments on these issues, we continue to find it 
appropriate to apply total AFA to the PRC-Wide Entity, including 
Huaiyang Hongda, and the 19 other companies.
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    \1\ APS Qingdao; Fujian Meitan Import & Export Xiamen 
Corporation (``Fujian Meitan''); Hongchang Fruits & Vegetable 
Products (``Hongchang''); Jining Haijiang Trading Co., Ltd. 
(``Jining Haijiang''); Jining Solar Summit Trade Co., Ltd. (``Jining 
Solar''); Jinxian County Huaguang Food Import & Export Co., Ltd. 
(``Jinxian County Huaguang''); Laiwu Hongyang Trading Company Ltd. 
(``Laiwu Hongyang''); Pizhou Guangda Import and Export Co., Ltd. 
(``Pizhou Guangda''); Qingdao Bedow Foodstuffs Co., Ltd. (``Qingdao 
Bedow''); Qingdao Camel Trading Co., Ltd. (``Qingdao Camel''); 
Qingdao H&T Food Co., Ltd. (``Qingdao H&T''); Qingdao Potenza Imp & 
Exp Co., Ltd. (``Qingdao Potenza''); Qingdao Shiboliang Food Co., 
Ltd. (``Qingdao Shiboliang''); Rizhao Xingda Foodstuffs Co., Ltd. 
(``Rizhao Xingda''); Shandong Chengshun Farm Produce Trading Co., 
Ltd. (``Shandong Chengshun''); Shandong Dongsheng Eastsun Foods Co., 
Ltd. (``Shandong Dongsheng''); Shandong Garlic Company (``Shandong 
Garlic''); Shanghai Ba-Shi Yuexin Logistics Development (``Shanghai 
Ba-Shi''); T&S International, LLC (``T&S'').
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Voluntary Respondent

    In the Preliminary Results, the Department did not calculate an 
individual margin for Qingdao Saturn, which requested to be considered 
as a voluntary respondent. See Preliminary Results, 73 FR at 69657-58. 
For these final results, the Department continues to treat Qingdao 
Saturn as a separate rate respondent, rather than a voluntary 
respondent, and is not calculating an individual margin for it. For a 
full discussion of this issue, see Comment 6 of the Final Decision 
Memo.

Final Partial Rescission

    In the Preliminary Results, the Department preliminarily rescinded 
this review with respect to the following three companies: Golden 
Bridge International, Inc. (``Golden Bridge''), Shanghai McCormick 
Foods Co., Ltd. (``Shanghai McCormick''), and Zhangqiu Qingyuan 
Vegetable Co., Ltd. (``Zhangqiu Qingyuan'').\2\ Golden Bridge, Shanghai 
McCormick, and Zhangqiu Qingyuan reported that they had no shipments of 
subject merchandise to the United States during the POR. See 
Preliminary Results, 73 FR at 69654. As we stated in the Preliminary 
Results, our examination of shipment data from CBP for the three no 
shipment companies confirmed that there were no entries of subject 
merchandise from them during the POR. See Preliminary Results 73 FR at 
69654. We also received no comments or information to change our 
preliminary rescission. Therefore, we are rescinding this 
administrative review with respect to all three aforementioned 
companies.
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    \2\ The review requests for Qingdao Tiantaixing Foods Co., Ltd. 
(``Qingdao Tiantaixing''), Zhengzhou Harmoni Spice Co., Ltd. 
(``Zhengzhou Harmoni'') were withdrawn, so in the Preliminary 
Results the Department rescinded the review for these two companies 
and subsequently issued the appropriate liquidation instructions.
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Changes Since The Preliminary Results

    We have revised the calculation of the garlic bulb surrogate value. 
In the Preliminary Results, the Department used an average of Grade A 
and Super-A (from May 2006 to January 2007) prices in its calculations. 
For these final results, however, using Respondents' size data on the 
record (and the July 2007 Foreign Market Research Report's 
clarification on the size ranges of Grade A and Super-A), the 
Department calculated a surrogate value based on the most appropriate 
Bulletin data. We have concluded that a more accurate analysis would be 
for the Department to use only Grade Super-A values for all Respondents 
that reported bulb sizes in ranges of 55 mm and above because bulb 
sizes that are 55 mm and above are typically classified as Grade Super-
A. However, we have also concluded that it is appropriate to average 
Grade A and Super-A values for all Respondents that reported bulb sizes 
in ranges below 55 mm because both A and Super-A reflect bulb sizes 
greater than 40 mm. Moreover, for the final results, we are also only 
using garlic bulb price data that are contemporaneous with the POR. For 
a complete explanation of the Department's analysis, see the Issues and 
Decision Memo at Comment 2. In addition, we are using the updated NME 
wage rate for the PRC, see the Issues and Decision Memo at Comment 4. 
Lastly, we are calculating the separate rate based on the simple 
average of the two mandatory respondents because using a weighted 
average risks disclosure of business proprietary information. See, 
e.g., Circular Welded Carbon Quality Steel Pipe from the People's 
Republic of China: Final Affirmative Countervailing Duty Determination 
and Final Affirmative Determination of Critical Circumstances, 73 FR 
31966 (June 5, 2008).

Final Results Of Review

    The weighted-average dumping margins for the POR are as follows:

                        Fresh Garlic from the PRC
------------------------------------------------------------------------
                                                            Weighted-
                 Manufacturer/Exporter                    Average Margin
                                                            (Percent)
------------------------------------------------------------------------
Jinxiang Dong Yun Freezing Storage Co., Ltd............          19.97
Shanghai LJ International Trading Co., Ltd.............          31.15
Qufu Dongbao Import & Export Trade Co., Ltd............          25.56
Weifang Shennong Foodstuff Co., Ltd....................          25.56
Jinxiang Shanyang Freezing Storage Co., Ltd............          25.56
Qingdao Xintianfeng Foods..............................          25.56
Shandong Longtai Fruits and Vegetables Co., Ltd........          25.56
Jining Trans-High Trading Co., Ltd.....................          25.56
Shenzhen Fanhui Import & Export Co., Ltd...............          25.56
Taian Ziyang Food Co., Ltd.............................          25.56
Anqiu Friend Food Co., Ltd.............................          25.56
Shanghai Ever Rich Trade Company.......................          25.56
Heze Ever-Best International Trade Co., Ltd............          25.56
Qingdao Saturn International Trade Co., Ltd............          25.56
Sunny Import & Export Co., Ltd.........................          25.56
Henan Weite Industrial Co., Ltd........................          25.56
Jinan Farmlady Trading Co., Ltd........................          25.56
PRC-Wide Entity\3\.....................................         376.67
------------------------------------------------------------------------
\3\ The PRC-Wide entity includes Huaiyang Hongda, APS Qingdao, Fujian
  Meitan, Hongchang, Jining Haijiang, Jining Solar, Jinxian County
  Huaguang, Laiwu Hongyang, Pizhou Guangda, Qingdao Bedow, Qingdao
  Camel, Qingdao H&T, Qingdao Potenza, Qingdao Shiboliang, Rizhao
  Xingda, Shandong Chengshun, Shandong Dongsheng, Shandong Garlic,
  Shanghai Ba-Shi, and T&S.

Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 
351.212(b)(1), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries. The Department intends 
to issue assessment instructions to CBP 15 days after the date of 
publication of these final results of review. For assessment purposes, 
where possible, we calculated importer-specific assessment rates for 
subject merchandise from the PRC via ad valorem duty assessment rates 
based on the ratio of the total amount of the dumping margins 
calculated for the examined sales to the total entered value of those 
same sales. We will instruct CBP to assess antidumping duties on all 
appropriate entries covered by this review.

Cash Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments

[[Page 34253]]

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) the cash deposit rate for each of 
the reviewed companies that received a separate rate in this review 
will be the rate listed in the final results of review (except that if 
the rate for a particular company is de minimis, i.e., less than 0.5 
percent, a zero cash deposit will be required for that company); (2) 
for previously investigated or reviewed PRC and non-PRC exporters not 
listed above that have separate rates, the cash deposit rate will 
continue to be the exporter-specific rate published for the most recent 
period; (3) for all PRC exporters of subject merchandise that have not 
been found to be entitled to a separate rate, including those companies 
for which this review has been rescinded, the cash deposit rate will be 
the PRC-wide rate of 376.67 percent; and (4) for all non-PRC exporters 
of subject merchandise which have not received their own rate, the cash 
deposit rate will be the rate applicable to the PRC exporters that 
supplied that non-PRC exporter. These deposit requirements, when 
imposed, shall remain in effect until further notice.

Reimbursement Of Duties

    This notice also serves as a final 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 POR. Failure to comply with this 
requirement could result in the Department's presumption that 
reimbursement of antidumping duties has occurred and the subsequent 
assessment of doubled antidumping duties.

Administrative Protective Orders

    This notice also serves as a reminder to parties subject to 
administrative protective orders (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305, which continues 
to govern business proprietary information in this segment of the 
proceeding. 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 terms of an APO 
is a violation which is subject to sanction.
    We are issuing and publishing this administrative review and notice 
in accordance with sections 751(a)(1) and 777(i) of the Act.

    Dated: June 9, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.

Appendix I

General Issues:

Comment 1: Intermediate Input Methodology
Comment 2: Garlic Bulb Surrogate Value
    A. Product Specifity
    B. Broad Market Average
    C. Public Availability
    D. Contemporaneity
    E. Tax and Duty Exclusivity
Comment 3: Surrogate Financial Ratios
Comment 4: Labor Surrogate Value
Comment 5: By-product Offset

Company-Specific Issues:

Comment 6: Individual Margin Calculation for Qingdao Saturn
[FR Doc. E8-13632 Filed 6-16-08; 8:45 am]
BILLING CODE 3510-DS-S