[Federal Register Volume 74, Number 190 (Friday, October 2, 2009)]
[Notices]
[Pages 50952-50955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23834]


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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 Final Rescission, In Part, of New Shipper Reviews

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (Department) is conducting the new 
shipper reviews (NSRs) of the antidumping duty order on fresh garlic 
from the People's Republic of China (PRC) covering the periods of 
review (PORs) of November 1, 2007 through April 30, 2008 and November 
1, 2007 through June 9, 2008.\1\ As discussed below, we determine that 
sales have been made in the United States at prices below normal value 
(NV) with respect to two exporters who participated fully and have 
demonstrated their eligibility for separate rates in the NSR: Chengwu 
County Yuanxiang Industry & Commerce, Ltd. (Yuanxiang) and Jinxiang 
Hejia Co., Ltd. (Hejia). In the preliminary results of this review, we 
found Yuanxiang's and Hejia's POR sales were made on a bona fide basis. 
See Fresh Garlic From the People's Republic of China: Preliminary 
Results of New Shipper Reviews, 74 FR 20452 (May 4, 2009) (Preliminary 
Results). We are continuing to find Yuanxiang's and Hejia's sales to be 
bona fide for the final results of this review. In addition, we are 
rescinding the NSRs for four companies: Weifang Chenglong Import & 
Export Co., Ltd. (Chenglong), Jinxiang Tianheng Trade Co., Ltd. 
(Tianheng), Jinxiang Zhengyang Import & Export Co., Ltd. (Zhengyang), 
and Juye Homestead Fruits and Vegetables Co., Ltd. (Juye). We intend to 
instruct U.S. Customs and Border Protection (CBP) to assess antidumping 
duties on entries of subject merchandise during the POR for which 
importer-specific assessment rates are above de minimis.
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    \1\ We extended the end of the period of review (POR) from April 
30, 2007 to June 9, 2008, to capture entries for three respondents. 
See the ``Expansion of the POR'' section in the Preliminary Results.

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EFFECTIVE DATE: October 2, 2009.

FOR FURTHER INFORMATION CONTACT: Toni Page, Scott Lindsay, or Summer 
Avery, 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) 482-1398, (202) 482-0780, or (202) 482-4052, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On May 4, 2009, the Department published in the Federal Register 
the preliminary results of the NSRs of the antidumping duty order on 
fresh garlic from the PRC. See Preliminary Results. Since the 
Preliminary Results, the following events have occurred.
    Hejia filed surrogate value (SV) information for its single-clove 
garlic on May 19, 2009. On May 22, 2009, we extended the deadline for 
all interested parties to submit publicly available information to 
value factors of production until June 9, 2009. Chenglong and Tianheng 
filed SV information on June 9, 2009. On June 19, 2009, Fresh Garlic 
Producers Association (FGPA) and its individual members (Christopher 
Ranch L.L.C., the Garlic Company, Valley Garlic, and Vessey and 
Company, Inc.) (collectively, Petitioners), filed factual information 
intended to rebut SV information filed by Chenglong and Tianheng.
    On May 27, 2009, the Department issued a supplemental questionnaire 
to Shandong Zhengyang with a due date of June 10, 2009. On June 4, 
2009, counsel for Zhengyang notified the Department that it was 
withdrawing its representation of the company and advised the 
Department to contact Zhengyang directly. On June 12, 2009, the 
Department sent a letter to Zhengyang stating that we had not received 
its supplemental questionnaire response and that we had canceled 
verification. Zhengyang did not respond to the Department's letter.
    On May 27, 2009, the Department sent a supplemental questionnaire 
to Hejia. The Department received Hejia's timely response on June 2, 
2009. On June 2, 2009, the Department was notified by Juye that it was 
withdrawing from the NSR.
    On June 4, 2009, we extended the time limit for the completion of 
the final results of these reviews. See Fresh Garlic From the People's 
Republic of China: Extension of Time Limit for the Final Results of New 
Shipper Reviews, 74 FR 26839 (June 4, 2009).
    The Department conducted verification of the NSR respondents 
Chenglong, Hejia, and Yuanxiang from June 22, 2009 through June 30, 
2009. On July 30 and 31, 2009, the Department issued its verification 
reports.
    On July 30, 2009, the Department preliminarily found Tianheng's 
sale to be not bona fide. See Memorandum From Barbara E. Tillman, 
Office Director, Office 6, Re: Bona Fide Nature of the Sale in the 
Antidumping Duty New Shipper Review of Fresh Garlic from the People's 
Republic of China (``PRC''): Amended Intent to Preliminarily Rescind 
Jinxiang Tianheng Trade Co.'s New Shipper Review, July 30, 2009 
(Amended Memorandum). We continue to find Tianheng's sale to be not 
bona fide for these final results.
    In response to requests filed by Petitioners and the NSR 
respondents, the Department extended the due date for case briefs until 
August 17, 2009. The Department received timely filed case briefs from 
Petitioners, Hejia, Yuanxiang, Chenglong, and Tianheng. On August 21, 
2009, the Department advised Hejia and Tianheng that each company's 
brief contained new factual information and instructed both Hejia and 
Tianheng to re-file their case briefs. Hejia and Tianheng complied with 
the Department's request and re-filed their case briefs on August 28, 
2009 and September 9, 2009, respectively. In response to requests filed 
by Petitioners and the NSR respondents, the Department extended the 
deadline for rebuttal briefs to August 24, 2009, for arguments 
regarding everything except Hejia-related issues, and to August 28, 
2009, for Hejia-specific matters. The Department received timely filed 
rebuttal briefs from all interested parties on August 24 and 28, 2009.

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,

[[Page 50953]]

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

    Issues raised in the case and rebuttal briefs by parties to this 
proceeding and to which we have responded are listed in Appendix 1 to 
this notice and addressed in the Memorandum from John Anderson, Acting 
Deputy Assistant Secretary for Import Administration Re: Fresh Garlic 
from the People's Republic of China: Issues and Decision Memorandum for 
the Final Results of the New Shipper Reviews and Rescission, In Part, 
of the New Shipper Reviews (Issues and Decision Memorandum), September 
24, 2009, which is hereby adopted by this notice.\2\ Parties can find a 
complete discussion of the issues raised in these NSRs 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 Issues and Decision 
Memorandum can be accessed directly on our website at http://ia.ita.doc.gov/. The paper copy and electronic version of the Issues 
and Decision Memorandum are identical in content.
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    \2\ In addition, due to the proprietary nature of much of the 
information involved in company-specific discussions, the Department 
has found it necessary to address certain issues in separate 
memoranda. See Bona Fide Nature of the Sale in the Antidumping Duty 
New Shipper Review of Fresh Garlic from the People's Republic of 
China (PRC): Jinxiang Hejia Co., Ltd (Hejia) (Hejia Final Bona Fides 
Memorandum) and Bona Fide Nature of the Sale in the Antidumping Duty 
New Shipper Review of Fresh Garlic from the People's Republic of 
China (PRC): Weifang Chenglong Import and Export Co. Ltd. 
(Chenglong) (Chenglong Final Bona Fides Memorandum).
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Final Rescission of Zhengyang's and Juye's New Shipper Reviews

    Subsequent to our Preliminary Results, Zhengyang and Juye each 
ceased participation in its respective new shipper review. 
Specifically, Zhengyang did not respond to the Department's May 27, 
2009 supplemental questionnaire and Juye withdrew from its new shipper 
review on June 4, 2009. By not fully participating in its new shipper 
review, each company has failed to establish that it qualified for a 
separate rate.
    To establish whether a company operating in a non-market economy 
(NME) is sufficiently independent from the Government to be eligible 
for a separate rate, the Department analyzes each exporting entity 
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 (May 6, 1991), as amplified by the Notice of Final Determination 
of Sales at Less Than Fair Value: Silicon Carbide from the People's 
Republic of China, 59 FR 22585 (May 2, 1994). Under the separate rates 
criteria, the Department assigns separate rates in NME cases only if 
the respondent can demonstrate the absence of both de jure and de facto 
governmental control over export activities. We note that by failing to 
fully participate in their new shipper reviews, Zhengyang and Juye did 
not demonstrate that they are free of government control and, 
therefore, are not eligible to receive a separate rate, and as part of 
the NME-entity are not eligible for a new shipper review. As such, the 
Department rescinds the new shipper reviews of Zhengyang and Juye.

Bona Fides Analyses For Chenglong, Tianheng, Yuanxiang and Hejia; and 
Final Rescission of New Shipper Reviews with Respect to Chenglong and 
Tianheng

    While conducting a review, particularly a review where a company's 
margin would be based on a single sale, the Department examines price, 
quantity, and other circumstances associated with the sale under 
review, and must determine if the sale was based on normal commercial 
considerations and presents an accurate representation of the company's 
normal business practices. If the Department determines that the price 
was not based on normal commercial considerations or is atypical of the 
respondent's normal business practices, including other sales of 
comparable merchandise, the sale may be considered non-bona fide.
    In the Preliminary Results, the Department preliminarily found that 
Chenglong's, Hejia's, and Yuanxiang's single POR sales were made on a 
bona fide basis. However, as a result of our analyses of information 
found during the verification of these companies, as well as comments 
made by interested parties, the Department has determined that 
Chenglong's POR transaction was not a bona fide sale. Finally, the 
Department continues to find Yuanxiang's and Hejia's sales to be bona 
fide for these final results.
    Chenglong: In the Preliminary Results, the Department noted that 
certain information on the record called into question the bona fides 
of Chenglong's sale and that we would continue to examine all aspects 
of Chenglong's POR sale. See Preliminary Results at 20455. After 
conducting verification of Chenglong and reviewing interested parties' 
briefs, the Department has determined that Chenglong's sale was not a 
bona fide transaction. See the Chenglong Final Bona Fides Memorandum 
for a more detailed discussion of the Department's determination as 
well as the Issues and Decision Memorandum at Comment 2. Accordingly, 
the Department is rescinding this NSR with respect to Chenglong.
    Tianheng: On July 30, 2009, the Department preliminarily found 
Tianheng's sale to be not bona fide. See Amended Memorandum. As noted 
in the ``Background'' section, both Petitioners and Tianheng submitted 
briefs and rebuttal briefs regarding the bona fides of Tianheng's 
single sale. Based on our analysis of arguments made by the parties, 
the Department continues to find Tianheng's sale to be not bona fide. 
See Issues and Decision Memorandum at Comment 3. Therefore, we are 
rescinding the NSR with respect to Tianheng for these final results.
    Yuanxiang: In the Preliminary Results, the Department preliminarily 
concluded that the single sale made by Yuanxiang was a bona fide 
commercial transaction. Petitioners and Yuanxiang have submitted 
arguments as to whether the Department should rescind Yuanxiang's NSR 
in these final results. See the Yuanxiang Final Bona Fides Memorandum 
for a more detailed discussion of the Department's determination as 
well as the Issues and Decision Memorandum at Comment 4. Based on the 
totality of the circumstances as discussed in the Issues and Decision 
Memorandum addressing Yuanxiang's bona fides issues, for these final 
results, the Department continues to find that Yuanxiang's sale was 
bona fide. See id.
    Hejia: In the Preliminary Results, the Department noted that 
certain information on the record called into question the bona fides 
of Hejia's POR sale and that we would continue to examine all aspects 
of Hejia's sale. See Preliminary Results at 20455. After conducting 
verification of Hejia and reviewing interested parties' briefs, the 
Department has determined that Hejia's

[[Page 50954]]

sale was a bona fide transaction. See the Hejia Final Bona Fides 
Memorandum for a more detailed discussion of the Department's 
determination as well as the Issues and Decision Memorandum at Comment 
1. Based on the totality of the circumstances as discussed in the 
Issues and Decision Memorandum addressing Hejia's bona fides issues, 
for these final results, the Department continues to find that Hejia's 
sale was bona fide. See id.

Changes Since the Preliminary Results

    Based on our analysis of information on the record of these 
reviews, and comments received from the interested parties, we have 
made changes to the financial ratios used to value overhead expenses, 
selling expenses, general expenses, and profits for the respondents. In 
these final results, for Yuanxiang, we are calculating surrogate 
financial ratios using a simple average of financial data from four 
Indian processors of tea, coffee, and rice. Using an average of these 
four companies' data allows us to calculate financial ratios that 
better reflect the broader experience of the surrogate industry. See 
Issues and Decision Memorandum at Comment 7 and Final Surrogate Values 
Memorandum. Also, based on our findings at verification, the Department 
is adjusting Yuanxiang's factors regarding packing for these final 
results. See Yuanxiang Verification Report at 3. The Department has 
also made changes to the valuation of Hejia's single-clove garlic 
input. The specific changes, which includes business proprietary 
information, are addressed in the Memorandum from Nicholas Czajkowski, 
Case Analyst, Re: New Shipper Review of Fresh Garlic from the People's 
Republic of China: Analysis for the Final Results of Jinxiang Hejia 
Co., Ltd. (Hejia).

FINAL RESULTS OF NEW SHIPPER REVIEWS

    As a result of our reviews, we determine that the following margins 
exist for the periods November 1, 2007 through April 30, 2008 and 
November 1, 2007 through June 9, 2008:

         Fresh Garlic from the PRC 2007-2008 New Shipper Reviews
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Exported and Produced by Chengwu County Yuanxiang Industry &      115.29
 Commerce, Ltd...............................................
Exported and Produced by Jinxiang Hejia Co., Ltd.............      15.37
------------------------------------------------------------------------

Disclosure

    We will disclose the calculations used in our analysis to parties 
to these proceedings within five days of the date of publication of 
this notice. See 19 CFR 351.224(b).

Assessment Rates

    Consistent with the final results of the 13th administrative review 
(AR) and NSRs of Fresh Garlic from the PRC, we will direct CBP to 
assess importer-specific assessment rates based on the resulting per-
unit (i.e., per kilogram) amount on each entry of the subject 
merchandise during the POR. See Fresh Garlic from the People's Republic 
of China: Final Results and Partial Rescission of the 13th Antidumping 
Duty Administrative Review and New Shipper Reviews, 74 FR 29174, 29177 
(June 19, 2009) (13th AR & NSRs of Fresh Garlic from the PRC). 
Therefore, the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries pursuant to section 
751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1). The Department will 
issue appropriate assessment instructions directly to CBP 15 days after 
publication of the final results of this review. For assessment 
purposes, we calculated importer-specific assessment rates for fresh 
garlic from the PRC. Specifically, we divided the total dumping margins 
for each importer by the total quantity of subject merchandise sold to 
that importer during the POR to calculate a per-unit assessment amount. 
We will direct CBP to assess importer-specific assessment rates based 
on the resulting per-unit (i.e., per kilogram) amount on each entry of 
the subject merchandise during the POR if any importer-specific 
assessment rate calculated in the final results of this review is above 
de minimis.

Cash Deposit Requirements

    Consistent with the final results of the 13th AR & NSRs of Fresh 
Garlic from the PRC, we will collect a per kilogram cash-deposit amount 
which will be the per-unit equivalent of the company-specific dumping 
margin published in the final results of these reviews. The following 
cash deposit requirements will be effective upon publication of the 
final results of these reviews for all 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)(1) of the Act: (1) for subject merchandise produced and exported 
by Yuanxiang the cash deposit rate will be the per-unit rate determined 
in the final results of the new shipper review; (2) for subject 
merchandise exported by Yuanxiang but not produced by Yuanxiang, the 
cash deposit rate continues to be the per-unit PRC-wide rate; (3) for 
subject merchandise produced and exported by Hejia the cash deposit 
rate will be the per-unit rate determined in the final results of the 
new shipper review; (4) for subject merchandise exported by Hejia but 
not produced by Hejia, the cash deposit rate continues to be the per-
unit PRC-wide rate; and (5) for subject merchandise produced or 
exported by Tianheng, Zhengyang, Chenglong, and Juye, the cash deposit 
rates continues to be the per-unit PRC-wide rate. These requirements, 
when imposed, shall remain in effect until further notice.

Notification to Importers

    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 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.

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.
    These new shipper reviews and notice are issued and published in 
accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 
and 351.214.

    Dated: September 24, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.

Appendix I

Comment 1: Whether Hejia's Sale is Bona Fide
Comment 2: Whether Chenglong's Sale is Bona Fide
Comment 3: Whether Tianheng's Sale is Bona Fide
Comment 4: Whether Yuanxiang's Sale is Bona Fide
Comment 5: Surrogate Value of Single-Clove Garlic

[[Page 50955]]

Comment 6: Calculation of Yield Loss Factor
Comment 7: Financial Ratios
Comment 8: Whether to Calculate Separate Financial Ratios for Whole 
Garlic and Peeled Garlic
[FR Doc. E9-23834 Filed 10-1-09; 8:45 am]
BILLING CODE 3510-DS-S