Fresh Garlic from the People's Republic of China; Final Results of Antidumping Duty Administrative Review and Rescission of Administrative Review in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of Final Results of Antidumping Duty Administrative Review and Rescission of Administrative Review in Part.

SUMMARY:

On August 9, 2002, the Department of Commerce published the preliminary results of the administrative review of the antidumping duty order on fresh garlic from the People's Republic of China. The period of review is November 1, 2000, through October 31, 2001. The administrative review covers thirteen producers/exporters of subject merchandise.

We invited interested parties to comment on our preliminary results. Based on our analysis of the comments received, we have made no changes to our analysis of our intent to rescind the review with respect to one respondent company. We have determined that we should rescind the review of another respondent company instead of assigning that company a rate based on adverse facts available. For a discussion of the rescissions, see the section “Partial Rescission of Review” listed below. The final dumping margins for the administrative review are listed in the “Final Results of the Review” section below.

EFFECTIVE DATE:

January 30, 2003.

FOR FURTHER INFORMATION CONTACT:

Edythe Artman or Catherine Cartsos, Office of Antidumping/Countervailing Duty Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, DC 20230; telephone (202) 482-3931 or (202) 482-1757, respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 9, 2002, the Department published the preliminary results of the administrative review of the antidumping duty order on fresh garlic from the People's Republic of China. See Fresh Garlic from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Partial Rescission of Administrative Review, and Intent to Rescind Administrative Review in Part, 67 FR 51822 (August 9, 2002) (Preliminary Results). We invited parties to comment on our preliminary results. With respect to our intent to rescind the administrative review in part, we received comments from the petitioners and Clipper Manufacturing Ltd. (Clipper). With respect to the preliminary results of the administrative review, we received comments from the petitioners, the respondent Taian Fook Huat Tong Kee Foods Co., Ltd. (FHTK), and the respondent Golden Light Trading Company, Ltd. (Golden Light).

We have conducted these reviews in accordance with section 751 of the Tariff Act of 1930, as amended, and 19 CFR 351.213 (2001) .

Scope of the Order

The products covered by this antidumping duty 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 antidumping duty 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 the Customs Service to that effect.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to the administrative review are addressed in the “Issues and Decision Memorandum for the Administrative Review of Fresh Garlic from the People's Republic of China” from Susan Kuhbach to Faryar Shirzad (January 21, 2003) (Decision Memo), which is hereby adopted by this notice. A list of the issues which parties raised and to which we responded in the Decision Memo is attached to this notice as an Appendix. The Decision Memo is a public document and is on file in the Central Records Unit (CRU), Main Commerce Building, Room B-099, and is accessible on the Web at www.ia.ita.doc.gov . The paper copy and electronic version of the memorandum is identical in content.

Separate Rates

In our preliminary results, we presumed that Golden Light was a market-economy company and that, accordingly, it qualified for a company-specific rate. We determined that a separate-rate analysis was not warranted for FHTK because, as a wholly owned foreign subsidiary, its parent company was beyond the jurisdiction of the People's Republic of China (PRC). See Preliminary Results, 67 FR at 51823. We have not received any information since the issuance of the Preliminary Results that provides a basis for reconsideration of these determinations.

Use of Adverse Facts Available

In the Preliminary Results, we determined that Golden Light, Phil-Sino International Trading Inc. (Phil-Sino), and Wo Hing (H.K.) Trading Co. (Wo Hing) should be assigned the rate of 376.67 percent based on use of the adverse facts available. In addition, we determined that this rate should be used as the adverse facts available for the PRC-wide entity and, accordingly, we applied this rate to Foshan Foodstuffs Import & Export Company, Jinan Import & Export Corporation, Jinxiang Foreign Trade Corporation, Jinxiang Hong Chong Fruits & Vegetable Products Company, Ltd., Quingdao Rui Sheng Food Company, Ltd., Rizhao Hanxi Fisheries & Comprehensive Development Co., Ltd., Shandong Commercial Group Corporation, and Zhejiang Materials Industry International Co., Ltd. See Preliminary Results, 67 FR at 51825.

Because we are rescinding the review for Golden Light, we find that the use of adverse facts available for its margin is not warranted. See the section “Partial Rescission of Review” below for a discussion of our determination.

Changes Since the Preliminary Results

Based on our analysis of comments received, we have rescinded the review of Golden Light.

With respect to FHTK, we have based the surrogate value for garlic sprouts on data from the Monthly Trade Statistics of Foreign Trade of India Volume II Imports (Indian Import Statistics) that falls under the tariff category for onions, shallots, garlic, leeks, and other alliaceous vegetables, fresh or chilled. We have based the value for potassium fertilizer on Indian import data that falls under the tariff category for mineral or chemical fertilizers, potassic, and covers the entire period of review. We have updated the financial information for the three Indian mushroom producers upon which we based our calculation of the surrogate financial ratios. Finally, we have based the value for electricity on data from the 1999/2000 Teri Energy Data Directory and Yearbook.

We have not changed our analysis with respect to the rescission of Clipper from the review or with respect to the other respondents in the review.

Partial Rescission of Review

A. Clipper

Section 772(a) of the Act, states, in part:

The term “export price” means the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States....

Accordingly, we have interpreted section 772(a) of the Act to mean that we are to use the price at which the first party in the chain of distribution who has knowledge of the U.S. destination of the merchandise sells the subject merchandise, either directly to a U.S. purchaser or to an intermediary such as a trading company. The party making such a sale, with knowledge of destination, is the appropriate party to be reviewed. Our focus is on the first party in the chain of distribution with knowledge of the U.S. destination, rather than on the first chronological sale of the merchandise. One exception to this rule is that, in non-market economy (NME) cases, we do not base export price on internal transactions between two companies located in the NME. See Fresh Garlic from the People's Republic of China; Final Results of Antidumping Duty Administrative Review and Partial Termination of Administrative Review, 62 FR 23758, 23759 (May 1, 1997).

Applying these principles, we have not reviewed Clipper's sales to its U.S. customer because the evidence on the record supports a finding that PRC export agents which sold the subject merchandise to Clipper had knowledge of the U.S. destination when they made the sales to Clipper. In addition, the sales of the garlic from the export agents to Clipper were the first non-intra-NME sales in the chain of distribution of the merchandise. Thus, these sales provide the appropriate basis on which to determine the export price.

The Department did not receive a request for review of the PRC export agents during the anniversary month of the publication of the antidumping duty order. See 19 CFR 351.213(b). Thus, it is not appropriate to conduct a review of the sales at issue. Therefore, we are rescinding this administrative review as it applies to Clipper. With this rescission, we will instruct the Customs Service to liquidate the entries during the period of review of subject merchandise from Clipper in accordance with 19 CFR 351.213(d).

B. Golden Light

For reasons discussed in response to comment 5 of the Decision Memo, we have determined that it is appropriate to rescind Golden Light from the review pursuant to 19 CFR 351.213(d)(3) on the basis that Golden Light had no entries, exports, or sales of subject merchandise during the POR.

Final Results of the Administrative Review

We determine that the following dumping margins exist for the period November 1, 2000, through October 31, 2001:

The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. The Department shall determine, and the Customs Service shall assess, antidumping duties on all appropriate entries. We will issue appropriate assessment instructions directly to the Customs Service within 15 days of publication of these final results of review.

Cash-Deposit Requirements

The following cash-deposit requirements will be effective upon publication of this notice of final results of administrative review for all shipments 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) for merchandise exported by FHTK, the cash-deposit rate will be zero percent; (2) for Phil-Sino and Wo Hing, the cash-deposit rate will be 376.67 percent; (3) for all other PRC exporters which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC-wide rate of 376.67 percent; and (4) for all other non-PRC exporters of subject merchandise from the PRC, including Clipper and Golden Light, the cash-deposit rate will be the rate applicable to the PRC supplier of that exporter. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) (2001) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. Pursuant to 19 CFR 351.402(f)(3), failure to comply with this requirement, could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. 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 the terms of an APO is a sanctionable violation.

We are issuing and publishing this determination and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.210(c) (2001).

Appendix

Decision Memo

1. Rescission of Review of Clipper

2. Rescission of Review of Golden Light

3. Bona Fides of FHTK's Sale

4. Use of Facts Available

5. Valuation of Garlic Seed

6. Valuation of Garlic Sprouts

7. Valuation of Urea

8. Valuation of Potassium Fertilizer

9. Calculation of Surrogate Financial Ratios

10. Valuation of Electricity

11. Valuation of Cartons