[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Notices]
[Pages 29174-29178]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14358]


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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 13th Antidumping Duty Administrative 
Review and New Shipper Reviews

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

SUMMARY: The Department of Commerce (Department) is conducting the 
administrative review (AR) and new shipper reviews (NSRs) of the 
antidumping duty order on fresh garlic from the People's Republic of 
China (PRC) covering the period of review (POR) of November 1, 2006 
through October 31, 2007. As discussed below, we determine that sales 
have been made in the United States at prices below normal value (NV) 
with respect to certain exporters who participated fully and are 
entitled to a separate rate in the AR or NSRs. In addition, we are 
rescinding the NSRs for two companies. Finally, the Department is 
rescinding the antidumping duty AR of companies that timely certified 
that they had no shipments of subject merchandise to the United States 
during the POR. 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.

DATES: Effective Date: June 19, 2009.

FOR FURTHER INFORMATION CONTACT: Scott Lindsay, Nicholas Czajkowski, 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) 482-0780, (202) 482-1395, and (202) 482-4052, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On December 8, 2008, the Department published in the Federal 
Register the preliminary results of the AR and NSRs of the antidumping 
duty order on fresh garlic from the PRC. See Fresh Garlic from the 
People's Republic of China: Preliminary Results of the Antidumping Duty 
Administrative and New Shipper Reviews and Intent to Rescind, in Part, 
the Antidumping Duty Administrative and New Shipper Reviews, 73 FR 
74462 (December 8, 2008) (Preliminary Results). Since the Preliminary 
Results, the following events have occurred.
    Shandong Chenhe International Trading Co., Ltd. (Chenhe) filed 
letters on December 12 and December 31, requesting that the Department 
rescind this AR with respect to Chenhe and remove it from the list of 
companies subject to the PRC-wide rate, as determined in the 
Preliminary Results. On December 15, Shenzhen Greening Trading Co., 
Ltd. (Greening) also filed a letter seeking removal from the list of 
companies subject to the PRC-wide rate and revised publication of the 
Preliminary Results. On December 18, the Department notified parties 
that case briefs would be due seven days after the last verification 
report was issued. On December 19 and 23, the Fresh Garlic Producers 
Association (FGPA) and its individual members (Christopher Ranch LLC, 
the Garlic Company, Valley Garlic, and Vessey and Company, Inc.) 
(collectively, Petitioners), filed letters in

[[Page 29175]]

response to those filed by Chenhe and Greening. On January 14, 2009, 
Petitioners filed additional surrogate value information.
    On February 26, 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 Limits for Final Results of the Antidumping Duty Administrative 
Review and New Shipper Reviews, 74 FR 8774 (February 26, 2009).
    On March 18, the Department issued a memorandum proposing, and 
inviting interested parties to comment in their case briefs on, revised 
assessment and cash deposit methodologies with respect to the separate 
rate companies and PRC-wide entity in these reviews. See Letter to All 
Interested Parties Re: The 2006/2007 Administrative Review of Garlic 
from the People's Republic of China (March 18, 2009) (Per Unit 
Memorandum).
    The Department conducted verification of the AR and NSR respondents 
from March 2 through March 14. On April 20 and 21, the Department 
issued its verification reports. On April 21, the Department notified 
parties that case briefs were due April 28. In response to requests 
filed by the AR and NSR respondents and Petitioners on April 23 and 24, 
respectively, the Department extended the deadlines for case briefs to 
May 1.
    On April 29, Chenhe submitted a case brief. On May 1, 2009, 
Petitioners, Zhengzhou Yuanli Trading Co. Ltd. (Yuanli), Ningjin 
Ruifeng Foodstuff Co., Ltd. (Ningjin Ruifeng), as well as Weifang 
Shennong Foodstuff Co., Ltd. (Weifang Shennong), Anqiu Friend Food Co. 
Ltd. (Anqiu Friend), and Anqiu Haoshun Trade Co., Ltd. (Haoshun) 
(collectively, WAA), submitted case briefs. After reviewing the case 
briefs, the Department instructed WAA to re-file their case briefs 
because they contained untimely new factual information. WAA filed the 
final versions of their redacted case briefs on May 7. On May 6 and May 
8, Yuanli, Petitioners, and WAA submitted rebuttal briefs. On May 28, 
the Department instructed Yuanli to re-file its case brief and 
Petitioners to re-file their rebuttal brief because they contained 
untimely new factual information. Yuanli and Petitioners re-filed their 
case and rebuttal briefs, respectively, on May 29.

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

    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 Issues and Decision Memorandum (Issues 
and Decision Memorandum), which is hereby adopted by this notice.\1\ 
Parties can find a complete discussion of the issues raised in these AR 
and 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 Web site 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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    \1\ 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 Antidumping Duty New Shipper Review of Fresh Garlic 
from the People's Republic of China (PRC): Bona Fides Comments 
Memorandum for Ningjin Ruifeng Foodstuff Co., Ltd. (Ningjin Ruifeng 
Comments Memorandum), Antidumping Duty New Shipper Review of Fresh 
Garlic from the People's Republic of China (PRC): Bona Fides 
Comments Memorandum for Anqiu Haoshun Foodstuff Co., Ltd. (Haoshun 
Comments Memorandum), and the three company-specific memoranda 
referenced in the ``Bona Fides Analysis'' section below.
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Final Partial Rescission of Administrative Review

    In the Preliminary Results, the Department preliminarily rescinded 
the administrative review with respect to the following three 
companies: Jinan Farmlady Trading Co., Ltd. (Jinan Farmlady), Qingdao 
Tiantaixing Foods Co., Ltd. (Qingdao Tiantaixing), and Qingdao 
Xintianfeng Foods Co., Ltd. (Qingdao Xintianfeng). Jinan Farmlady, 
Qingdao Tiantaixing, and Qingdao Xintianfeng reported that they had no 
shipments of subject merchandise to the United States during the POR. 
See Preliminary Results, 73 FR at 74465. 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 which they exported during the POR. Id. 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.

Final Rescission of New Shipper Review With Respect to Anqiu Haoshun

    In the Preliminary Results, the Department preliminarily rescinded 
Haoshun's new shipper review. See Preliminary Results, 73 FR at 74465. 
Based on our analysis of arguments made by the parties, the Department 
will not change its preliminary rescission. Therefore, we are 
rescinding this new shipper review with respect to Haoshun. (See ``Bona 
Fides Analysis'' section below; Comment 10 of the accompanying Issues 
and Decision Memorandum; and the memorandum from Scott Lindsay to 
Barbara Tillman, Final Results of Antidumping Duty New Shipper Review 
of Fresh Garlic from the People's Republic of China: Bona Fide Analysis 
of Anqiu Haoshun Trade Co., Ltd.'s Sale (June 8, 2009) (Haoshun Final 
Bona Fide Memorandum), and Haoshun Comments Memorandum.)

Bona Fides Analysis

    As noted in the Preliminary Results, 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

[[Page 29176]]

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 concluded 
that the single sale made by Haoshun during the POR was a not a bona 
fide commercial transaction and preliminarily rescinded the NSR with 
respect to Haoshun. In addition, the Department preliminarily found the 
sales made by Yuanli and Ningjin Ruifeng to be bona fide commercial 
transactions. Petitioners, Respondents, Yuanli, and Ningjin Ruifeng 
have submitted extensive arguments regarding the Department's 
preliminary bona fides analyses of Haoshun's, Yuanli's and Ningjin 
Ruifeng's new shipper sales. In addition, these parties have submitted 
arguments as to whether the Department should rescind each company's 
NSR in these final results. Most of the parties' arguments are based on 
information which is business proprietary. Thus, the parties' comments 
are fully discussed in the Haoshun Comments Memorandum, Ningjin Ruifeng 
Comments Memorandum, and Final Results of Antidumping Duty New Shipper 
Review of Fresh Garlic from the People's Republic of China: Bona Fide 
Analysis of Zhengzhou Yuanli Trading Co. Ltd's Sale (June 8, 2009) 
(Yuanli Final Bona Fide Memorandum).
    Based on the totality of the circumstances as discussed in the 
memoranda addressing bona fides issues, for these final results, the 
Department continues to find the price and quantity of Haoshun's single 
POR sale to be unreasonable and atypical, and therefore find the sale 
to be not bona fide. Thus, the Department has rescinded the NSR with 
respect to Haoshun. In addition, we determine that the new shipper sale 
made by Ningjin was not a bona fide commercial transaction because 
Ningjin failed to establish payment terms while negotiating its U.S. 
sale, the quantity of garlic sold was unreasonably low, and there is 
other evidence that this transaction may not have been made on an 
arm's-length basis. Thus, the Department has also rescinded the NSR 
with respect to Ningjin. Finally, we continue to find that Yuanli's 
sales was bona fide. Given the proprietary nature of the underlying 
data used to formulate the Department's analysis and determinations, 
see the Issues and Decision Memorandum at Comment 10, Haoshun Final 
Bona Fide Memorandum, Haoshun Comments Memorandum, Final Results of 
Antidumping Duty New Shipper Review of Fresh Garlic from the People's 
Republic of China: Bona Fide Analysis of Ningjin Ruifeng Foodstuff Co., 
Ltd.'s Sale (June 8, 2009), Ningjin Ruifeng Comments Memorandum, and 
Yuanli Final Bona Fide Memorandum, for details of the proprietary data 
that support the decisions contained herein.

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 Anqiu Friend, Weifang Shennong, and Yuanli. 
Specifically, the Department will use an average of the financial 
ratios of ADF Foods Ltd. (ADF); Tata Tea Ltd. (Tata Tea); and Limtex to 
value the factory overhead (FOH), selling, general & administrative 
(SG&A) expenses, and profit used to calculate NV. (See 19 CFR 
351.408(c)(4).) We note that using an average of three Indian 
processors' data will allow us to calculate financial ratios that 
better reflect the broader experience of the surrogate industry. 
Moreover, as ADF's and Tata Tea's production processes are more 
comparable to that of peeled garlic, which comprises an increasing 
share of all PRC garlic imports, and Limtex's production process is 
comparable to that of non-processed whole garlic bulbs, which continue 
to comprise a large share of PRC garlic imports nonetheless, the 
resulting financial ratios will be a better surrogate for the garlic 
industry in the PRC as a whole. See Issues and Decision Memorandum at 
Comment 3. See also Administrative Review and New Shipper Review of 
Fresh Garlic from the People's Republic of China: Surrogate Values for 
the Final Results (Final Surrogate Values Memorandum).
    As a result of the revisions made to Anqiu Friend's and Weifang 
Shennong's company-specific margins, the margin calculated for the four 
separate rate companies, Jinxiang Dongyun Freezing Storage Co., Ltd. 
(Jinxiang Dongyun), Qingdao Saturn International Trade Co., Ltd. 
(Qingdao Saturn), Qufu Dongbao Import & Export Trade Co., Ltd. (Qufu 
Dongbao), and Shanghai LJ International Trading Co., Ltd. (Shanghai 
LJ), has also changed. For all changes to the calculations for Anqiu 
Friend, Weifang Shennong, and Yuanli, see the Issues and Decision 
Memorandum and the company-specific analysis memoranda.
    With respect to the surrogate value for paper labels, information 
on the record indicates that the paper labels used by respondents 
appear to be a self-adhesive rectangular sheet, similar to the 
description of the Indian HTS <greek-i>4811.41.00. Thus, in accordance 
with our surrogate value selection criteria, the Department finds that 
in this case the Indian HTS <greek-i>4811.41.00 represents the best 
surrogate value based on the available information on the record and we 
have changed our surrogate value calculations accordingly. See Issues 
and Decision Memorandum at Comment 6. See also Final Surrogate Values 
Memorandum.
    Lastly, following the methodologies established in the 
aforementioned Per-Unit Memorandum and consistent with the Department's 
practice, we are calculating per-unit cash deposit and assessment rates 
for the separate rate companies and companies that are part of the PRC-
wide entity. See Per-Unit Memorandum, Final Results of the 
Administrative Review of Fresh Garlic from the People's Republic of 
China: Separate Rate Companies and PRC-Wide Entity--Per-Unit Assessment 
Rates (June 8, 2009), and Issues and Decision Memorandum at Comment 8. 
See also Honey from the People's Republic of China: Final Results and 
Rescission, In Part, of Aligned Antidumping Duty Administrative Review 
and New Shipper Review, 73 FR 42321 (July 21, 2008).

Final Results of Reviews

    As a result of our reviews, we determine that the following margins 
exist for the period November 1, 2006 through October 31, 2007:

------------------------------------------------------------------------
                                                              Weight-
                                                             Averaged
                  Manufacturer/Exporter                       margin
                                                             (percent)
------------------------------------------------------------------------
        Fresh Garlic from the PRC 2006-2007 Administrative Review
------------------------------------------------------------------------
Anqiu Friend Food Co., Ltd..............................           64.78
Weifang Shennong Foodstuff Co., Ltd.....................           80.69
Jinxiang Dongyun Freezing Storage Co., Ltd..............           72.74
Qingdao Saturn International Trade Co., Ltd.............           72.74
Qufu Dongbao Import & Export Trade Co., Ltd.............           72.74
Shanghai LJ International Trading Co., Ltd..............           72.74
PRC-wide Rate...........................................          376.67
(see Appendix 2)........................................
------------------------------------------------------------------------

[[Page 29177]]

 
         Fresh Garlic from the PRC 2006-2007 New Shipper Review
------------------------------------------------------------------------
Exported and Produced by Zhengzhou Yuanli Trading Co.,            120.18
 Ltd....................................................
------------------------------------------------------------------------

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 12th NSR review 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 
Rescission, in Part, of Twelfth New Shipper Reviews, 73 FR 56550, 56552 
(September 29, 2008) (12th NSR 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.
    Moreover, as noted above, the Department is calculating per-unit 
cash deposit and assessment rates for separate rate companies and 
companies that are part of the PRC-wide entity. Using CBP data, we 
totaled the quantity and value of the entries made by the four separate 
rate companies to derive a weighted average unit value (AUV), which we 
then multiplied by the separate rate to calculate a per-unit assessment 
amount. For companies determined to be part of the PRC-wide entity, the 
Department employed the methodology discussed above, except we 
calculated an AUV exclusive of entries from the two mandatory 
respondents and the four separate rate companies, and then multiplied 
the AUV by the PRC-wide rate.

Cash Deposit Requirements

    Consistent with the final results of the 12th NSR of Fresh Garlic 
from the PRC, we have established and 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 
exported by Anqiu Friend and exported by Weifang Shennong the cash 
deposit rates will be the per unit rates determined in the final 
results of the administrative review; (2) for subject merchandise 
produced and exported by Yuanli, the cash deposit rates will be the per 
unit rate determined in the final results of the new shipper review; 
(3) for subject merchandise exported by but not produced by Yuanli, the 
cash deposit rate will be the PRC-wide rate; (4) for subject 
merchandise exported by Jinxiang Dongyun, Qingdao Saturn, Qufu Dongbao, 
and Shanghai LJ, the cash deposit rates will be the per unit rates 
determined in the final results of the administrative review; (5) for 
previously-investigated or previously-reviewed PRC and non-PRC 
exporters who received a separate rate in a prior segment of the 
proceeding (which were not reviewed in this segment of the proceeding), 
the cash deposit rate will continue to be the rate assigned in that 
segment of the proceeding; (6) for subject merchandise exported by 
Haoshun, Ningjin, Chenhe, Greening and all other PRC exporters of 
subject merchandise that have not been found to be entitled to a 
separate rate, the cash deposit rate will be the per-unit PRC-wide 
rate; and (7) the cash deposit rate for non-PRC exporters of subject 
merchandise which have not received their own rate will be the rate 
applicable to the PRC exporter that supplied that non-PRC exporter. 
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 administrative and new shipper reviews and notice are issued 
and published in accordance with sections 751(a)(1), 751(a)(2)(B), and 
777(i) of the Act and 19 CFR 351.213 and 351.214.

    Dated: June 8, 2009.
Carole Showers,
Acting Deputy Assistant Secretary for Policy and Negotiations.

Appendix 1

Comment 1: Intermediate Input Methodology.
Comment 2: Garlic Bulb Surrogate Value.
Comment 3: Surrogate Financial Ratios.
Comment 4: Timing of Petitioners' Surrogate Value Submission.
Comment 5: Water Valuation.
Comment 6: Paper Label Valuation.
Comment 7: Yield Factor Valuation.
Comment 8: Per Unit Assessment.
Comment 9: Anqiu Friend's Affiliations.
Comment 10: Bona Fides of New Shipper Companies.
Comment 11: Rescission of Chenhe and Greening.

Appendix 2

    The following companies subject to this antidumping duty 
administrative review did not apply for a separate rate and thus have 
been assigned the PRC-wide rate for their imports of subject 
merchandise during the POR.
1. APS Qingdao.

[[Page 29178]]

2. American Pioneer Shipping.
3. Beijing Jim International Food Co., Ltd.
4. Burgeon International Inc.
5. Fujian Meitan Import & Export Xiamen Corporation.
6. Jining Meiya Foods Co., Ltd.
7. Jining Trans-High Trading Co., Ltd.
8. Jinxian County Huaguang Food Import & Export Co., Ltd.
9. Junan Auto Imp and Exp Co., Ltd.
10. Linyi Futai Foodstuff Co., Ltd.
11. Marnex (HongKong) Company.
12. New Future International Trading Co.
13. Omni Decor China Ltd.
14. Qingdao Rock-It Sports Inc.
15. Sea Trade International Incorporated.
16. Shandong Chengshun Farm Produce Trading Co., Ltd.
17. Shandong Chenhe Int'l Trading Co., Ltd.
18. Shandong Dongsheng Eastsun Foods Co., Ltd.
19. Shandong Garlic Company.
20. Shanghai New Long March International Trade Co., Ltd.
21. Shenzhen Greening Trading Co., Ltd.
22. Shenzhen Imp & Exp. Ltd.
23. T&S International, LLC.
24. Taiwan Wachine Co., Ltd.
25. Taizhou Overseas Int'l Ltd.

[FR Doc. E9-14358 Filed 6-18-09; 8:45 am]
BILLING CODE 3510-DS-P