[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Notices]
[Pages 52315-52317]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21377]



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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic From the People's Republic of China: Final 
Rescission of New Shipper Reviews of Jining Yifa Garlic Produce Co., 
Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan Trading Inc.

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

SUMMARY: On May 3, 2011, the Department of Commerce (Department) 
published a preliminary intent to rescind the new shipper reviews 
(NSRs) of fresh garlic from the People's Republic of China (PRC) 
covering the period of review (POR) November 1, 2009, through April 30, 
2010, for Jining Yifa Garlic Produce Co., Ltd. (Jining Yifa) and 
Shenzhen Bainong Co., Ltd. (Shenzhen Bainong) and November 1, 2009, 
through May 31, 2010, for Yantai Jinyan Trading Inc. (Yantai Jinyan). 
See Fresh Garlic From the People's Republic of China: Preliminary 
Intent To Rescind New Shipper Reviews, 76 FR 24857 (May 3, 2011) 
(Preliminary Intent to Rescind). The Department preliminarily found 
that Jining Yifa's and Shenzhen Bainong's sales were not bona fide. The 
Department preliminarily found that Yantai Jinyan was not entitled to 
an NSR.
    The Department continues to find that the U.S. sales of subject 
merchandise exported by Jining Yifa and Shenzhen Bainong during the POR 
were not bona fide and is rescinding the NSRs of Jining Yifa and 
Shenzhen Bainong. After analyzing the comments submitted by parties 
with respect to Yantai Jinyan, the Department continues to find that 
Yantai Jinyan was not entitled to an NSR. Therefore, the Department is 
rescinding Yantai Jinyan's NSR.

DATES: Effective Date: August 22, 2011.

FOR FURTHER INFORMATION CONTACT: Jacqueline Arrowsmith, Milton Koch, or 
Justin Neuman, AD/CVD Operations, Office 6, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-5255, (202) 482-2584, and (202) 482-0486, respectively.

SUPPLEMENTARY INFORMATION:

Background

    Since the Department issued the Preliminary Intent to Rescind, the 
following events have occurred with respect to Jining Yifa, Shenzhen 
Bainong, and Yantai Jinyan. On May 16, 2011, the Department issued a 
supplemental questionnaire to Jining Yifa. On May 18, 2011, Jining Yifa 
informed the Department that it would not respond to the supplemental 
questionnaire. On May 19, 2011, the Department issued a supplemental 
questionnaire to Shenzhen Bainong. On June 9, 2011, Shenzhen Bainong 
filed its response to our supplemental questionnaire. No parties filed 
case briefs with respect to Jining Yifa. Yantai Jinyan and Shenzhen 
Bainong timely filed case briefs. The Fresh Garlic Producers 
Association and its individual Members, Christopher Ranch LLC, The 
Garlic Company, Valley Garlic, and Vessey and Company (collectively, 
Petitioners) timely filed rebuttal briefs separately addressing the 
parties' case briefs.

Scope of the Order

    The products covered by the 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 
the 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 the 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 U.S. Customs and Border Protection (CBP) to that 
effect.

Final Rescission of NSR: Jining Yifa

    In the Preliminary Intent to Rescind, the Department analyzed the 
bona fides of Jining Yifa's sales, and preliminarily found Jining 
Yifa's sales to the United States to be not bona fide. In the 
Preliminary Intent to Rescind, we stated that we would continue to 
gather information with respect to this issue. The Department 
subsequently issued a supplemental questionnaire to Jining Yifa; in 
response, Jining Yifa provided a letter explaining that it would not 
respond. No party submitted briefs regarding Jining Yifa.
    Absent any new information on the record or arguments regarding 
Jining Yifa and the Preliminary Intent to Rescind, the Department 
continues to find that the sales by Jining Yifa are not bona fide; 
therefore, these sales do not provide a reasonable or reliable basis 
for calculating a dumping margin. Thus, the Department is rescinding 
the NSR of Jining Yifa.

Final Rescission of NSR: Shenzhen Bainong

    In the Preliminary Intent to Rescind, the Department analyzed the 
bona fides of Shenzhen Bainong's sales and preliminarily found Shenzhen 
Bainong's sales to the United States to be not bona fide. In the 
Preliminary Intent to Rescind, we stated that we would continue to 
gather information with respect to this issue. The Department 
subsequently issued a supplemental questionnaire to Shenzhen Bainong, 
to which Shenzhen Bainong responded. Shenzhen Bainong filed a case 
brief and Petitioners filed a rebuttal brief. The Department has 
analyzed Shenzhen Bainong's supplemental questionnaire response and the 
case and rebuttal briefs. We continue to find that Shenzhen Bainong's 
sale is not bona fide and does not provide a reasonable or reliable 
basis for calculating a dumping margin. Thus we are rescinding the NSR 
for Shenzhen Bainong.

Final Rescission of NSR: Yantai Jinyan

    As noted above, the Department received a case brief and a rebuttal 
brief from Yantai Jinyan and Petitioners, respectively. In the 
Preliminary Intent to Rescind, the Department stated that its decision 
to initiate the NSR and to extend the POR was based on the information 
provided by Yantai Jinyan in its request for an NSR. The Department 
reached a preliminary decision to rescind the NSR of Yantai Jinyan 
because the Department found that Yantai Jinyan's request for review 
contained a misrepresentation regarding

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the timing of the sale at issue. The Department continues to find that 
Yantai Jinyan's request for an NSR did not meet the minimum 
requirements for an NSR under 19 CFR 351.214(b)(2)(iv)(C). 
Specifically, the sale that Yantai Jinyan certified in its request as 
the first sale to an unaffiliated customer in the United States was 
later identified by Yantai Jinyan as a sale to an affiliated customer. 
In order to qualify for an NSR under 19 CFR 351.214, a company must 
certify and document, among other things, the date of the first sale to 
an unaffiliated customer in the United States. Once all the facts 
surrounding the transaction were established, it became clear that 
Yantai Jinyan did not have a sale or entry during the standard POR; as 
such, there was in fact no basis upon which to initiate an NSR. 
Consequently, we preliminarily determined that the Department's 
decision to initiate the NSR of Yantai Jinyan was based on inaccurate 
information provided by Yantai Jinyan. See Preliminary Intent to 
Rescind, 76 FR at 24858. After analyzing Yantai Jinyan's case brief and 
Petitioners' rebuttal brief, the Department continues to find that 
Yantai Jinyan's request for an NSR did not meet the requirements for 
initiation. As such, it is appropriate to rescind the NSR of Yantai 
Jinyan.
    The Department is currently conducting an antidumping duty 
administrative review for the POR November 1, 2009, through October 31, 
2010, to which Yantai Jinyan is subject. See Initiation of Antidumping 
and Countervailing Duty Administrative Reviews and Request for 
Revocation in Part, 75 FR 81565, 81569 (December 28, 2010). As 
indicated in the Preliminary Intent to Rescind, the Department has 
moved Yantai Jinyan's separate rate application from the record of this 
NSR to the record of the 2009-2010 administrative review, and will 
consider it in the context of the administrative review. See 
``Memorandum from Jacqueline Arrowsmith to the File through Dana S. 
Mermelstein, Program Manager, AD/CVD Operations 6, Moving Yantai 
Jinyan's Separate Rates Application to the November 1, 2009 through 
October 31, 2010 (16th) Administrative Review,'' dated concurrently 
with this notice.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs are addressed in 
the ``Memorandum to Ronald K. Lorentzen, Deputy Assistant Secretary for 
Import Administration from Christian Marsh, Deputy Assistant Secretary 
for Antidumping and Countervailing Duty Operations, Issues and Decision 
Memorandum: Fresh Garlic from the People's Republic of China; Final 
Rescission of New Shipper Reviews of Jining Yifa Garlic Produce Co. 
Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan Trading Inc.'' 
(Decision Memorandum), dated concurrently with this notice and hereby 
adopted by this notice. A list of the issues raised in the briefs and 
addressed in the Decision Memorandum is appended to this notice. The 
Decision Memorandum is a public document on file in the Central Records 
Unit (CRU) main Commerce building, Room 7046, and is also accessible 
directly on the Web at http://ia.ita.doc.gov/frn. The paper copy and 
electronic version of the Decision Memorandum are identical in content. 
The Department has made the transition to an electronic filing system, 
IA ACCESS; CRU will continue to maintain the official record in paper 
form for those documents that were filed prior to the implementation of 
IA ACCESS. See Antidumping and Countervailing Duty Proceedings: 
Electronic Filing Procedures; Administrative Protective Order 
Procedures, 76 FR 39263, 39264 (July 6, 2011).

Cash Deposit Requirements

    Effective upon publication of the final rescission of the NSRs of 
Jining Yifa, Shenzhen Bainong, and Yantai Jinyan, the Department will 
instruct CBP to discontinue the option of posting a bond or security in 
lieu of a cash deposit for entries of subject merchandise by Jining 
Yifa, Shenzhen Bainong, and Yantai Jinyan. Cash deposits will be 
required for exports of subject merchandise by Jining Yifa, Shenzhen 
Bainong, and Yantai Jinyan entered, or withdrawn from warehouse, for 
consumption on or after the publication date at the per-unit PRC-wide 
rate, $4.71 per kilogram.

Assessment Instructions

    As a result of the rescission of the NSR of Jining Yifa and 
Shenzhen Bainong, the entries of subject merchandise by Jining Yifa and 
Shenzhen Bainong covered by these NSRs will be assessed at the PRC-wide 
rate. Because these entries are also covered by the POR of the 2009-
2010 administrative review currently being conducted (see Initiation of 
Antidumping and Countervailing Duty Administrative Reviews and Request 
for Revocation in Part, 75 FR 81565), we will issue liquidation 
instructions for Jining Yifa's and Shenzhen Bainong's entries upon 
completion of the administrative review. Upon completion of the 
administrative review, the Department will instruct CBP to assess 
antidumping duties on entries for Jining Yifa and Shenzhen Bainong at 
the PRC-wide rate pursuant to the final results of the 2009-2010 
administrative review.
    In addition, the Department has moved Yantai Jinyan's separate rate 
application from the record of this NSR to the record of the 2009-2010 
administrative review, and, during the course of the administrative 
review, the Department will evaluate whether Yantai Jinyan's separate 
rate application establishes its eligibility for a separate rate. Upon 
completion of the administrative review, the Department will instruct 
CBP to assess antidumping duties on entries of subject merchandise by 
Yantai Jinyan now covered by the administrative review, at the 
appropriate rate pursuant to the final results of the 2009-2010 
administrative review.

Notification to Importers

    This notice serves as a 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 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.

Return or Destruction of Proprietary Information

    This notice serves as a reminder to parties subject to the 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
the APO in accordance with 19 CFR 351.305(a)(3). Timely written 
notification of return or 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.
    This notice is issued and published in accordance with sections 
751(a)(2)(B) and 777(i) of the Tariff Act of 1930, as amended, and 19 
CFR 351.214.

     Dated: August 15, 2011.
Christian Marsh,
Acting Deputy Assistant Secretary for Import Administration.

Appendix I--List of Issues Addressed in the Decision Memorandum

Comment 1: Whether Yantai Jinyan's NSR Request Satisfied the 
Requirements for Initiation
Comment 2: Whether Yantai Jinyan Made Inaccurate Representations in 
Its NSR Request

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Comment 3: Whether Yantai Jinyan's Sale to Its Unaffiliated Customer 
Should Be Reviewed Because the POR Was Expanded
Comment 4: Whether the Department Has the Discretion To Continue 
Yantai Jinyan's NSR or Initiate Another NSR
Comment 5: Yantai Jinyan's Cash Deposit and Assessment Rate
Comment 6: Whether the Department's Authority To Rescind Shenzhen 
Bainong's New Shipper Review Is Limited to a Sale That Is 
Unrepresentative and Extremely Distortive
Comment 7: Whether the Pricing of Shenzhen Bainong's Sale Is 
Commercially Reasonable
Comment 8: Whether the Quantity of Shenzhen Bainong's Sale Is 
Commercially Reasonable
Comment 9: Whether the Department's Concerns Regarding Shenzhen 
Bainong's Importer as Legitimate Ongoing Business Concern Are 
Justified
Comment 10: Whether Shenzhen Bainong's Importer Behaved in a 
Commercially Reasonable Manner

[FR Doc. 2011-21377 Filed 8-19-11; 8:45 am]
BILLING CODE 3510-DS-P