Fresh Garlic from the People's Republic of China: Notice of Preliminary Results and Preliminary Partial Rescission of the Twelfth Administrative Review, 69652-69662 [E7-23891]
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69652
Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices
acquisition from the Persons Subject To
This Order of any item subject to the
Regulations that has been exported from
the United States;
D. Obtain from the Persons Subject To
This Order in the United States any item
subject to the Regulations with
knowledge or reason to know that the
item will be, or is intended to be,
exported from the United States; or
E. Engage in any transaction to service
any item subject to the Regulations that
has been or will be exported from the
United States and which is owned,
possessed or controlled by the Persons
Subject To This Order, or service any
item, of whatever origin, that is owned,
possessed or controlled by the Persons
Subject To This Order if such service
involves the use of any item subject to
the Regulations that has been or will be
exported from the United States. For
purposes of this paragraph, servicing
means installation, maintenance, repair,
modification or testing.
III. In addition to the Related Person
named above, after notice and
opportunity for comment as provided in
section 766.23 of the Regulations, any
other person, firm, corporation, or
business organization related to Xu by
affiliation, ownership, control, or
position of responsibility in the conduct
of trade or related services may also be
made subject to the provisions of this
Order if necessary to prevent evasion of
the Order.
IV. This Order does not prohibit any
export, reexport, or other transaction
subject to the Regulations where the
only items involved that are subject to
the Regulations are the foreignproduced direct product of U.S.-origin
technology.
V. This Order is effective immediately
and shall remain in effect until May 4,
2016.
VI. In accordance with part 756 of the
Regulations, Xu may file an appeal of
this Order with the Under Secretary of
Commerce for Industry and Security.
The appeal must be filed within 45 days
from the date of this Order and must
comply with the provisions of part 756
of the Regulations.
VII. In accordance with part 756 of the
Regulations, the related persons may
also file an appeal of this Order with the
Under Secretary of Commerce for
Industry and Security.
VIII. A copy of this Order shall be
delivered to Xu and the Related Persons.
This Order shall be published in the
Federal Register.
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Dated: November 27, 2007.
Eileen M. Albanese,
Director, Office of Exporter Services.
[FR Doc. 07–5987 Filed 12–07–07; 8:45 am]
BILLING CODE 3510–DT–M
DEPARTMENT OF COMMERCE
International Trade Administration
Proposed Information Collection;
Comment Request; Application for the
President’s ‘‘E’’ and ‘‘E STAR’’ Awards
for Export Expansion
International Trade
Administration (ITA).
ACTION: Notice.
AGENCY:
SUMMARY: The Department of
Commerce, as part of its continuing
effort to reduce paperwork and
respondent burden, invites the general
public and other Federal agencies to
take this opportunity to comment on
proposed and/or continuing information
collections, as required by the
Paperwork Reduction Act of 1995.
DATES: Written comments must be
submitted on or before February 8, 2008.
ADDRESSES: Direct all written comments
to Diana Hynek, Departmental
Paperwork Clearance Officer,
Department of Commerce, Room 6625,
14th and Constitution Avenue, NW.,
Washington, DC 20230 (or via the
Internet at dHynek@doc.gov).
FOR FURTHER INFORMATION CONTACT:
Requests for additional information or
copies of the information collection
instrument and instructions should be
directed to Jennifer Kirsch,
Jennifer.Kirsch@mail.doc.gov, phone
(202) 482–5449, fax (202) 482–5362.
SUPPLEMENTARY INFORMATION:
I. Abstract
The President’s ‘‘E’’ Award for
Excellence in Exporting is our nation’s
highest award to honor American
exporters. ‘‘E’’ Awards recognize firms
and organizations for their competitive
achievements in world markets, as well
as the benefits of their success to the
U.S. economy. The President’s ‘‘E
STAR’’ Award recognizes the sustained
superior international marketing
performance of ‘‘E’’ Award winners.
II. Method of Collection
The application form is available on
the Internet. Applicants are required to
submit one electronic version and one
hard copy.
III. Data
OMB Control Number: 0625–0065.
Form Number(s): ITA–725P.
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Type of Review: Regular submission.
Affected Public: Business or other forprofit organizations.
Estimated Number of Respondents:
10.
Estimated Time Per Response: 20
hours.
Estimated Total Annual Burden
Hours: 200.
Estimated Total Annual Cost to
Public: $0.
IV. Request for Comments
Comments are invited on: (a) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information shall have
practical utility; (b) the accuracy of the
agency’s estimate of the burden
(including hours and cost) of the
proposed collection of information; (c)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (d) ways to minimize the
burden of the collection of information
on respondents, including through the
use of automated collection techniques
or other forms of information
technology.
Comments submitted in response to
this notice will be summarized and/or
included in the request for OMB
approval of this information collection;
they also will become a matter of public
record.
Dated: December 4, 2007.
Gwellnar Banks,
Management Analyst, Office of the Chief
Information Officer.
[FR Doc. E7–23848 Filed 12–7–07; 8:45 am]
BILLING CODE 3510–FP–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–831]
Fresh Garlic from the People’s
Republic of China: Notice of
Preliminary Results and Preliminary
Partial Rescission of the Twelfth
Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting an
administrative review 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, 2005, through
October 31, 2006. As discussed below,
we preliminarily determine that certain
respondents in this review made sales
in the United States at prices below
AGENCY:
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Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices
normal value (‘‘NV’’). If these
preliminary results are adopted in our
final results of review, we will 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.
EFFECTIVE DATE: December 10, 2007.
FOR FURTHER INFORMATION CONTACT: Julia
Hancock, Michael Holton, or 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) 482–1394,
(202) 482–1324, and (202) 482–2312,
respectively.
SUPPLEMENTARY INFORMATION:
rmajette on PROD1PC64 with NOTICES
General Background
On November 16, 1994, the
Department published in the Federal
Register the antidumping duty order on
fresh garlic from the PRC. See
Antidumping Duty Order: Fresh Garlic
From the People’s Republic of China, 59
FR 59209 (November 16, 1994)
(‘‘Order’’). On November 1, 2006, the
Department published a notice of
opportunity to request an administrative
review of the antidumping duty order
on fresh garlic from the PRC for the
period November 1, 2005, through
October 31, 2006. See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation: Opportunity
to Request Administrative Review, 71
FR 64240 (November 1, 2006).
On November 30, 2006, we received
requests from both Petitioners 1 and
certain PRC companies to conduct
administrative reviews for a total of 52
companies. On December 27, 2006, the
Department initiated an administrative
review of 52 2 producers/exporters of
1 Petitioners are the members of the Fresh Garlic
Producers Association: Christopher Ranch L.L.C.;
The Garlic Company; Valley Garlic; and Vessey and
Company, Inc. (hereinafter referred to as
‘‘Petitioners’’).
2 Anqiu Friend Food Co., Ltd. (‘‘Anqiu’’); APS
Qingdao; Fujian Meitan Import & Export Xiamen
Corporation (‘‘Fujian Meitan’’); Golden Bridge
International, Inc. (‘‘Golden Bridge’’); Henan Weite
Industrial Co., Ltd. (‘‘Henan Weite’’); Heze EverBest International Trade Co., Ltd. (‘‘Heze EverBest’’); Hongchang Fruits & Vegetable Products
(‘‘Hongchang’’); Huaiyang Hongda Dehydrated
Vegetable Company (‘‘Huaiyang Hongda’’); Jinan
Farmlady Trading Co., Ltd. (‘‘Jinan Farmlady’’);
Jinan Yipin Corporation, Ltd. (‘‘Jinan Yipin’’);
Jining Haijiang Trading Co., Ltd. (‘‘Jining
Haijiang’’); Jining Solar Summit Trade Co., Ltd.
(‘‘Jining Solar’’); Jining Trans-High Trading Co., Ltd.
(‘‘Jining Trans-High’’); Jinxian County Huaguang
Food Import & Export Co., Ltd. (‘‘Jinxian County
Huaguang’’); Jinxiang Dong Yun Freezing Storage
Co., Ltd. (aka Jinxiang Eastward Shipping Import
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subject merchandise from the PRC. See
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews, 71 FR 77720 (December 27,
2006) (‘‘Initiation Notice’’).
On March 8, 2007, in accordance with
section 351.213(d)(1) of the
Department’s regulations, we rescinded
the administrative review with respect
to nine companies. See Fresh Garlic
from the People’s Republic of China:
Notice of Partial Rescission of the
Twelfth Administrative Review, 72 FR
10491 (March 8, 2007) (‘‘Rescission
Notice’’). Therefore, this review covers
433 producers/exporters of the subject
merchandise and the PRC–wide entity.
and Export Limited Company) (‘‘Jinxiang Dong
Yun’’); Jinxiang Shanyang Freezing Storage Co., Ltd.
(‘‘Jinxiang Shanyang’’); Laiwu Hongyang Trading
Company Ltd. (‘‘Laiwu Hongyang’’); Linshu Dading
Private Agricultural Products Co., Ltd. (‘‘Linshu
´
Dading’’); Omni Decor China Ltd. (‘‘Omni’’); 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 Saturn
International Trade Co., Ltd. (‘‘Qingdao Saturn’’);
Qingdao Shiboliang Food Co., Ltd. (‘‘Qingdao
Shiboliang’’); Qingdao Tiantaixing Foods Co., Ltd.
(‘‘Qingdao Tiantaixing’’); Qingdao Titan Shipping
LLC (‘‘Qingdao Titan’’); Qingdao Xintianfeng Foods
(‘‘Qingdao Xintianfeng’’); Qufu Dongbao Import &
Export Trade Co., Ltd. (‘‘Qufu Dongbao’’); 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≥); Shandong Longtai Fruits and
Vegetables Co., Ltd. (‘‘Shandong Longtai’’);
Shandong Wonderland Organic Food Co., Ltd.
(‘‘Shandong Wonderland’’); Shanghai Ba-Shi
Yuexin Logistics Development (‘‘Shanghai Ba-Shi’’);
Shanghai Ever Rich Trade Company (‘‘Shanghai
Ever Rich’’); Shanghai LJ International Trading Co.,
Ltd. (‘‘Shanghai LJ’’); Shanghai McCormick Foods
Co., Ltd. (‘‘Shanghai McCormick’’); Shenzhen
Fanhui Import & Export Co., Ltd. (‘‘Shenzhen
Fanhui’’); Shenzhen Xinboda Industrial Co., Ltd.
(‘‘Shenzhen Xinboda’’); Sunny Import & Export Co.,
Ltd. (‘‘Sunny’’); T&S International, LLC (‘‘T&S’’);
Taian Fook Huat Tong Kee Pte Ltd. (‘‘Taian Fook
Huat’’); Taian Ziyang Food Co., Ltd. (‘‘Taian
Ziyang’’); Weifang Hongqiao International Logistic
Co., Ltd. (‘‘Weifang Hongqiao’’); Weifang Shennong
Foodstuff Co., Ltd. (‘‘Weifang Shennong’’); Xiang
Cheng Sunny Foodstuff Factory (‘‘Xiang Cheng’’);
XuZhou Simple Garlic Industry Co., Ltd (‘‘XuZhou
Simple’’); Zhangqiu Qingyuan Vegetable Co., Ltd.
(‘‘Zhangqiu Qingyuan’’); and Zhengzhou Harmoni
Spice Co., Ltd. (‘‘Zhengzhou Harmoni’’).
3 Anqiu; APS Qingdao; Fujian Meitan; Golden
Bridge; Henan Weite; Heze Ever-Best; Hongchang;
Huaiyang Hongda; Jinan Farmlady; Jining Haijiang;
Jining Solar; Jining Trans-High; Jinxian County
Huaguang; Jinxiang Dong Yun; Jinxiang Shanyang;
Laiwu Hongyang; Pizhou Guangda; Qingdao
Bedow; Qingdao Camel; Qingdao H&T; Qingdao
Potenza; Qingdao Saturn; Qingdao Shiboliang;
Qingdao Tiantaixing; Qingdao Xintianfeng; Qufu
Dongbao; Rizhao Xingda; Shandong Chengshun;
Shandong Dongsheng; Shandong Garlic; Shandong
Longtai; Shanghai Ba-Shi; Shanghai Ever Rich;
Shanghai LJ; Shanghai McCormick; Shenzhen
Fanhui; Sunny; T&S; Taian Ziyang; Weifang
Shennong; Xiang Cheng; Zhangqiu Qingyuan; and
Zhengzhou Harmoni.
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69653
On August 2, 2007, the Department
extended the preliminary results of this
administrative review until November
30, 2007. See Fresh Garlic from the
People’s Republic of China: Extension of
Time Limit for the Preliminary Results
of the Twelfth Administrative Review,
72 FR 42390 (August 2, 2007).
Respondent Selection
On January 23, 2007, the Department
issued a quantity and value (‘‘Q&V’’)
questionnaire to the 43 named firms that
still had an active request for review.
See Letter with Attachments from Alex
Villanueva, Program Manager, to All
Interested Parties, RE: Quantity and
Value Questionnaire for Fresh Garlic
from the People’s Republic of China,
(January 23, 2007) (‘‘Q&V
questionnaire’’). Additionally, on
January 23, 2007, Petitioners withdrew
their request for review for nine named
firms.4 See Rescission Notice. Between
February 2, 2007, and March 2, 2007,
the Department received responses to
the Q&V questionnaire from 23 firms.5
On February 13, 2007, Qingdao Camel
withdrew its request for an
administrative review.6 On February 14,
2007, the Department received a letter
from Qingdao Camel stating that it
would not be responding to the Q&V
questionnaire.
On February 15, 2007, the Department
issued a second Q&V questionnaire to
the 20 firms 7 that did not respond to the
Department’s original Q&V
questionnaire. See Letter with
Attachments from Alex Villanueva,
Program Manager, to All Interested
4 Jinan Yipin; Lindshu Dading; Omni; Qingdao
Titan; Shandong Wonderland; Shenzhen Xinboda;
Taian Fook; Weifang Hongqiao; and Xuzhou
Simple.
5 Jinxiang Dong Yun; Huaiyang Hongda; Shanghai
LJ; Qufu Dong Bao; Weifang Shennong; Zhengzhou
Harmoni; Sunny; Jinxiang Shanyang; Qingdao
Xintianfeng; Shandong Longtai; Jining Trans-High;
Shenzhen Fanhui; Taian Ziyang; Anqiu; Heze EverBest; Qingdao Saturn; Henan Weite; Qingdao
Tiantaixing; Xiang Cheng (producer for Shanghai
LJ); Shanghai Ever Rich; Xuzhou Simple; Shanghai
McCormick; and Jinan Farmlady. In their responses,
both Xuzhou Simple and Shanghai McCormick
responses stated that they had no shipments of
subject merchandise to the United States during the
POR. Moreover, between March 13-14, 2007, the
Department received revised Q&V questionnaire
responses from the following 10 firms: Anqiu;
Henan Weite; Jinan Farmlady; Jinxiang Dong Yun;
Qingdao Tiantaixing; Qingdao Xintianfeng; Qufu
Dongbao; Shanghai LJ; Taiyan Ziyang; and Weifang
Shennong.
6 However, Petitioners did not withdraw their
request for a review of Qingdao Camel.
7 APS Qingdao; Fujian Meitan; Hongchang Fruits;
Jining Haijiang; Jining Solar; Jinxian County
Huaguang; Laiwu Hongyang; Pizhou Guangda;
Qingdao Bedow; Qingdao H&T; Qingdao Potenza;
Qingdao Shiboliang; Rizhao Xingda; Shandong
Chengshun; Shandong Dongsheng; Shandong
Garlic; Shanghai Ba-Shi; T&S; Golden Bridge; and
Zhangqiu Qingyuan.
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Parties, RE: Second Quantity and Value
Questionnaire for Fresh Garlic from the
People’s Republic of China, (February
15, 2007) (‘‘Second Q&V
Questionnaire’’).
Between February 16, 2007, and
February 27, 2007, the Department
received separate rate certifications from
18 firms 8 and between March 23 and
26, 2007, the Department received
separate rate applications from 2 firms.9
Additionally, between February 27,
2007, and March 2, 2007, the
Department received responses from
Zhangqiu Qingyuan and Golden Bridge
that each company did not have
shipments of subject merchandise to the
United States during the POR.
As discussed below in ‘‘Preliminary
Partial Rescission of the Administrative
Review,’’ on March 16, 2007, the
Department received letters from
Petitioners and Zhengzhou Harmoni
withdrawing their requests for review of
Zhengzhou Harmoni and thus, the
Department did not consider Zhengzhou
Harmoni in the selection of
respondents.
On April 11, 2007, after receiving
comments from interested parties, the
Department selected Jinxiang Dong Yun,
Huaiyang Hongda, and Shanghai LJ as
the three mandatory respondents since
they were the three largest exporters, by
volume, of the remaining companies.
See Memorandum to Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration, from James C. Doyle,
Office Director, Office 9, re:
Antidumping Duty Administrative
Review of Fresh Garlic from the
People’s Republic of China: Selection of
Respondents, (April 11, 2007)
(‘‘Respondent Selection Memo’’). There
are 15 companies, based on withdrawals
and appropriately submitted Q&V
questionnaire responses, that were not
selected as mandatory respondents, but
which qualified for separate rates:
Sunny; Qufu Dong Bao; Weifang
Shennong; Jinxiang Shanyang; Qingdao
Xintianfeng; Shandong Longtai; Jining
Trans–High; Shenzhen Fanhui; Taian
Ziyang; Anqiu; Shanghai Ever Rich;
Heze Ever–Best; Qingdao Saturn; Henan
Weite; and Jinan Farmlady (collectively
known as the ‘‘separate rate
companies’’).
8 Jinxiang Dong Yun; Huaiyang Hongda; Shanghai
LJ; Qufu Dong Bao; Weifang Shennong; Zhengzhou
Harmoni; Sunny; Jinxiang Shanyang; Qingdao
Xintianfeng; Shandong Longtai; Jining Trans-High;
Shenzhen Fanhui; Taian Ziyang; Anqiu; Shanghai
Ever Rich; Heze Ever-Best; Qingdao Saturn; and
Henan Weite.
9 Qingdao Tiantaixing and Jinan Farmlady.
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Questionnaires
There are 3710 companies that remain
in the administrative review, after the
rescission of the reviews for Qingdao
Tiantaixing, Zhengzhou Harmoni,
Golden Bridge, Shanghai McCormick,
and Zhangqiu Qingyuan, for these
preliminary results, as discussed below
in ‘‘Preliminary Partial Rescission of the
Administrative Reviews.’’
On April 16, 2007, the Department
issued antidumping duty questionnaires
to Jinxiang Dong Yun, Huaiyang
Hongda, and Shanghai LJ. Between May
14, 2007, and June 4, 2007, Huaiyang
Hongda responded to the Department’s
non–market economy (‘‘NME’’)
questionnaire but did not respond to the
Department’s subsequent supplemental
questionnaires. Between May 21, 2007,
and November 15, 2007, Shanghai LJ
responded to the Department’s NME
questionnaire and subsequent
supplemental questionnaires. Between
May 21, 2007, and November 13, 2007,
Jinxiang Dong Yun responded to the
Department’s NME questionnaire and
subsequent supplemental
questionnaires. Between May 7, 2007,
and May 23, 2007, Qingdao Saturn
submitted voluntary responses to the
Department’s NME questionnaire.
Preliminary Partial Rescission of the
Administrative Review
On March 22, 2007, Petitioners
requested that the Department extend
the deadline for the withdrawal of
review requests. On March 27, 2007, the
Department extended the deadline to
withdraw a request for review to July
11, 2007.
Qingdao Tiantaixing
On July 9, 2007, Qingdao Tiantaixing
withdrew its request for an
administrative review. No other party
requested a review of Qingdao
Tiantaixing. Therefore, because Qingdao
Tiantaixing’s request was timely, in
accordance with 19 CFR 351.213(d)(1),
we have rescinded this review with
respect to Qingdao Tiantaixing.
Qingdao Xintianfeng
On February 6, 2007, Qingdao
Xintianfeng withdrew its request for an
10 Anqiu; APS Qingdao; Fujian Meitan; Henan
Weite; Hongchang; Huaiyang Hongda; Jinan
Farmlady; Jining Haijiang; Jining Solar; Jining
Trans-High; Jinxian County Huaguang; Jinxiang
Dong Yun; Jinxiang Shanyang; Laiwu Hongyang;
Pizhou Guangda; Qingdao Bedow; Qingdao Camel;
Qingdao H&T; Qingdao Potenza; Qingdao Saturn;
Qingdao Shiboliang; Qingdao Xintianfeng; Qufu
Dongbao; Rizhao Xingda; Shandong Chengshun;
Shandong Dongsheng; Shandong Garlic; Shandong
Longtai; Shanghai Ba-Shi; Shanghai Ever Rich;
Shanghai LJ; Shenzhen Fanhui; Sunny; T&S; Taian
Ziyang; Weifang Shennong; and Xiang Cheng.
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administrative review. Nonetheless, as
previously noted, on February 22, 2007,
Qingdao Xintianfeng submitted both a
Q&V questionnaire response and a
separate rate certification. On July 25,
2007, which was 14 days after the
withdrawal deadline, Petitioners
submitted a letter withdrawing their
request for an administrative review of
Qingdao Xintianfeng. On July 31, 2007,
Qingdao Xintianfeng submitted a letter
stating that due to its cooperative efforts
it wished to remain an active
respondent in this administrative
review. On August 22, 2007, the
Department issued a letter stating that it
extended the time limit for withdrawing
a request for review by 20 days to July
31, 2007. However, the Department also
requested that Qingdao Xintianfeng
submit a letter clarifying whether its
July 31, 2007, letter, was in fact a
retraction of its February 6, 2007,
withdrawal of its review request. On
August 24, 2007, Qingdao Xintianfeng
submitted a letter stating that it was
retracting its February 6, 2007,
withdrawal request and wished to
remain an active respondent in this
administrative review. Therefore,
because Qingdao Xintianfeng still has
an active request for a review, we have
not rescinded this review with respect
to Qingdao Xintianfeng.
Zhengzhou Harmoni
On March 16, 2007, the Department
received letters from Petitioners and
Zhengzhou Harmoni withdrawing their
requests for review of Zhengzhou
Harmoni. Therefore, because
Petitioners’ and Zhenghzhou Harmoni’s
requests were timely, in accordance
with 19 CFR 351.213(d)(1), we have
rescinded this review with respect to
Zhengzhou Harmoni.
No–Shipment Companies
Three companies, Golden Bridge,
Shanghai McCormick, and Zhangqiu
Qingyuan, reported in their Q&V
questionnaire responses that they made
no shipments of subject merchandise to
the United States during the POR.
Additionally, the Department’s
examination of shipment data from CBP
for these 3 companies confirmed that
there were no entries of subject
merchandise from them during the POR.
Consequently, because there is no
evidence on the record to indicate that
these three companies had sales of
subject merchandise under this Order
during the POR, pursuant to 19 CFR
351.213(d)(3), the Department is
preliminarily rescinding the review
with respect to these three respondents:
Golden Bridge, Shanghai McCormick,
and Zhangqiu Qingyuan.
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Surrogate Country and Surrogate
Values
On June 7, 2007, the Department sent
interested parties a letter requesting
comments on the surrogate country and
information pertaining to valuing factors
of production. On August 2, 2007,
September 20, 2007, and October 31,
2007, Petitioners submitted surrogate
value comments from various Indian
sources. No other interested party
submitted comments on the surrogate
country and information pertaining to
valuing factors of production.
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.
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Adverse Facts Available (‘‘AFA’’)
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 sections 782(c)(1)
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and (e) of the Act; (C) significantly
impedes a proceeding 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.
Section 782(c)(1) of the Act provides
that if an interested party ‘‘promptly
after receiving a request from {the
Department} for information, notifies
{the Department} that such party is
unable to submit the information
requested in the requested form and
manner, together with a full explanation
and suggested alternative forms in
which such party is able to submit the
information,’’ the Department may
modify the requirements to avoid
imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides
that, if the Department determines that
a response to a request for information
does not comply with the request, the
Department will inform the person
submitting the response of the nature of
the deficiency and shall, to the extent
practicable, provide that person the
opportunity to remedy or explain the
deficiency. If that person submits
further information that continues to be
unsatisfactory, or this information is not
submitted within the applicable time
limits, the Department may, subject to
section 782(e) of the Act, disregard all
or part of the original and subsequent
responses, as appropriate.
Section 782(e) of the Act states that
the Department shall not decline to
consider information deemed
‘‘deficient’’ under section 782(d) if: (1)
the information is submitted by the
established deadline; (2) the information
can be verified; (3) the information is
not so incomplete that it cannot serve as
a reliable basis for reaching the
applicable determination; (4) the
interested party has demonstrated that it
acted to the best of its ability in
providing the information and meeting
the requirements established by the
Department; and (5) the information can
be used without undue difficulties.
Furthermore, section 776(b) of the Act
states 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 from the administering
authority or the Commission, the
administering authority or the
Commission ..., in reaching the
applicable determination under this
title, may use an inference that is
adverse to the interests of that party in
selecting from among the facts
otherwise available.’’ See also Statement
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of Administrative Action (‘‘SAA’’)
accompanying the Uruguay Round
Agreements Act (‘‘URAA’’), H.R. Rep.
No. 103–316 at 870 (1994). 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 id.
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.
Huaiyang Hongda
As discussed in the ‘‘General
Background’’ section above, Huaiyang
Hongda did not respond to the
supplemental questionnaires issued by
the Department on August 10, 2007, and
August 22, 2007. The deadline for
Huaiyang Hongda to file a response to
the supplemental Section A
questionnaire and the supplemental
Sections C and D questionnaire were
August 24, 2007, and September 4,
2007, respectively. Huaiyang Hongda
failed to respond to either of these
supplemental questionnaires.
Additionally, the Department issued
letters to Huaiyang Hongda on August
24, 2007, and September 13, 2007, and
confirmed delivery for both letters. In
both letters, the Department noted that
responses to its supplemental
questionnaires were past due and
requested that Huaiyang Hongda notify
the Department whether it intended to
participate further in this administrative
review. Huaiyang Hongda did not
respond to either of these letters.
Therefore, the Department finds that
Huaiyang Hongda’s non–responsiveness
necessitates the use of facts available,
pursuant to sections 776(a)(2)(A), (B)
and (C) of the Act.
Based upon Huaiyang Hongda’s
failure to submit responses to the
Department’s supplemental
questionnaires and follow–up letters,
the Department finds that Huaiyang
Hongda withheld requested
information, failed to provide the
information in a timely manner and in
the form requested, and significantly
impeded this proceeding, pursuant to
sections 776(a)(2)(A), (B) and (C) of the
Act. Because Huaiyang Hongda failed to
provide a response to the Department’s
supplemental questionnaires, critical
data relevant to its separate rate
determination remains outstanding.
Therefore, the Department was
prevented from conducting a complete
separate rate analysis. Additionally,
Huaiyang Hongda’s failure to provide a
response to the Department’s
supplemental questionnaires means that
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critical information necessary to
calculate an antidumping margin for
Huaiyang Hongda is absent from the
record. Therefore, Huaiyang Hongda
withheld requested information, failed
to provide the information in a timely
manner and in the form requested, and
has significantly impeded this
proceeding. Thus, the Department has
no choice but to rely on the facts
otherwise available in order to
determine a margin for Huaiyang
Hongda, pursuant to section
776(a)(2)(A), (B) and (C) of the Act. See
Non–Malleable Cast Iron Pipe Fittings
from the People’s Republic of China:
Final Results of Antidumping Duty
Administrative Review, 71 FR 69546
(December 1, 2006) and accompanying
Issues and Decision Memorandum at
Comment 1.
For these preliminary results, the
Department finds that Huaiyang Hongda
has failed to cooperate to the best of its
ability. Specifically, the Department
finds that Huaiyang Hongda did not
respond to the Department’s request for
clarification on certain issues, including
its separate rate information and
reported sales and cost information, as
requested in the Department’s
supplemental questionnaires. See
Nippon Steel Corp. v. United States, 337
F. 3d 1373, 1384 (Fed. Cir. 2003)
(‘‘Nippon Steel’’). Because Huaiyang
Hongda refused to answer the
Department’s supplemental
questionnaires and letters, the
Department finds that Huaiyang Hongda
has failed to cooperate to the best of its
ability, pursuant to section 776(b) of the
Act.
Because of Huaiyang Hongda’s refusal
to cooperate in the instant proceeding,
the Department was unable to calculate
a company–specific margin or even to
determine Huaiyang Hongda’s separate
rate status. Thus, the Department could
not determine whether Huaiyang
Hongda is eligible for a separate rate.
Accordingly, we are not granting
Huaiyang Hongda a separate rate and
consider Hongda to be part of the PRC–
wide entity, subject to the PRC–wide
rate.
19 Companies
As mentioned in the ‘‘General
Background’’ section above, the
Department initiated this administrative
review with respect to 52 companies,
including among them 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
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Dongsheng, Shandong Garlic, Shanghai
Ba–Shi, and T&S (collectively referred
to as the ‘‘19 Companies’’). See
Initiation Notice. On January 23, 2007,
the Department rescinded, in part, the
review on nine of the 52 companies, but
noted that 43 companies, including the
19 Companies, were still subject to
review. See Rescission Notice.
Additionally, on January 23, 2007, and
on February 15, 2007, the Department
issued a Q&V questionnaire and a
Second Q&V questionnaire to the 19
companies. None of the 19 Companies
responded to the Department’s Q&V
questionnaire, nor did these 19
Companies respond to the Department’s
Second Q&V questionnaire.
Because these 19 Companies were
non–responsive to the Department’s two
requests for Q&V information, the
Department finds that they are not
entitled to a separate rate. Additionally,
by not responding to the Department’s
first or second Q&V questionnaire, each
company failed to provide critical
information to be used for the
Department’s respondent selection
process. Therefore, pursuant to sections
776(a)(2)(A), (B) and (C) of the Act, the
Department finds that the application of
facts available is appropriate. In
addition, pursuant to section 776(b) of
the Act, the Department may apply
adverse facts available if it finds a
respondent has failed to cooperate by
not acting to the best of its ability to
comply with a request for information
from the Department. By failing to
respond to the Department’s first and
second Q&V questionnaire, these 19
Companies have failed to act to the best
of their ability in this segment of the
proceeding. Moreover, because these 19
Companies did not participate in the
respondent selection exercise, the
Department did not send them a
questionnaire and was unable to
determine whether or not they qualified
for a separate rate. Therefore, these 19
Companies are not eligible to receive a
separate rate and will be part of the
PRC–wide entity, subject to the PRC–
wide rate.
PRC–wide Entity
Because Huaiyang Hongda and the 19
Companies, which are part of the PRC–
wide entity, failed to cooperate to the
best of their ability in providing the
requested information, as discussed
above, we find it appropriate, in
accordance with sections 776(a)(2)(A),
(B) and (C), as well as section 776(b), of
the Act, to assign total AFA to the PRC–
wide entity. See Certain Frozen
Warmwater Shrimp from the Socialist
Republic of Vietnam: Preliminary
Results of the First Administrative
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Review and New Shipper Review, 72 FR
10689, 10692 (March 9, 2007) (decision
to apply total AFA to the NME–wide
entity was unchanged for the final
results). By doing so, we ensure that the
companies that are part of the PRC–
wide entity will not obtain a more
favorable result by failing to cooperate
than had they cooperated fully in this
review.
As discussed above, section 776(b) of
the Act authorizes the Department to
use, as AFA, information derived from
the petition, the final determination in
the LTFV investigation, any previous
administrative review, or any other
information placed on the record.
Section 776(b)(4) of the Act permits the
Department to use as AFA information
derived in the LTFV investigation or
any prior review. In selecting an AFA
rate, the Department’s practice has been
to assign non–cooperative Respondents
the highest margin determined for any
party in the less–than-fair–value
(‘‘LTFV’’) investigation or in any
administrative review. See Stainless
Steel Plate in Coils from Taiwan:
Preliminary Results and Rescission in
Part of Antidumping Duty
Administrative Review, 67 FR 5789
(February 7, 2002). As AFA, we are
assigning the PRC–wide entity, which
includes Huaiyang Hongda and the 19
Companies, the highest rate from any
segment of this proceeding, which in
this case is 376.67 percent assigned to
the PRC–wide entity in the LTFV
investigation. See Notice of Final
Determination of Sales at Less Than
Fair Value: Fresh Garlic from the
People’s Republic of China, 59 FR
49058, 49060 (September 26, 1994)
(‘‘Garlic LTFV Final Determination’’).
Section 776(c) of the Act requires the
Department to corroborate, to the extent
practicable, secondary information used
as facts available. Secondary
information is defined as ‘‘information
derived from the petition that gave rise
to the investigation or review, the final
determination concerning the subject
merchandise, or any previous review
under section 751 concerning the
subject merchandise.’’ See SAA
accompanying the URAA, H.R. Doc. No.
103–316 at 870 (1994); see also 19 CFR
351.308(d).
The SAA further provides that the
term ‘‘corroborate’’ means that the
Department will satisfy itself that the
secondary information to be used has
probative value. See SAA at 870. Thus,
to corroborate secondary information,
the Department will, to the extent
practicable, examine the reliability and
relevance of the information used. The
AFA rate we are applying for the current
review of fresh garlic was corroborated
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in the LTFV investigation. See Garlic
LTFV Final Determination, 59 FR at
49060. No information has been
presented in the current review that
calls into question the reliability of the
information used for this AFA rate.
Thus, the Department finds that the
information is reliable.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal to determine whether a margin
continues to have relevance. Where
circumstances indicate that the selected
margin is not appropriate as AFA, the
Department will disregard the margin
and determine an appropriate margin.
For example, in Flowers from Mexico,
the Department did not use the highest
margin in the proceeding as best
information available (the predecessor
to facts available) because that margin
was based on another company’s
aberrational business expenses and was
unusually high. See Fresh Cut Flowers
From Mexico; Final Results of
Antidumping Duty Administrative
Review, 61 FR 6812, 6814 (February 22,
1996) (‘‘Flowers from Mexico’’). In other
cases, the Department has not used the
highest rate in any segment of the
proceeding as the AFA rate because the
highest rate was subsequently
discredited, or the facts did not support
its use. See D&L Supply Co. v. United
States, 113 F.3d 1220, 1221 (Fed. Cir.
1997) (the Department will not use a
margin that has been judicially
invalidated). None of these unusual
circumstances are present with respect
to the rate being used here. Moreover,
the rate selected, (i.e., 376.67 percent),
is the rate currently applicable to the
PRC–wide entity. The Department
assumes that if an uncooperative
respondent could have obtained a lower
rate, it would have cooperated. See
Rhone Poulenc, Inc. V. United States,
899 F. 2d 1185, 1190–91 (Fed. Cir.
1990); Ta Chen Stainless Steel Pipe, Inc.
V. United States, 24 CIT 841, 848 (2000)
(respondents should not benefit from
failure to cooperate). As there is no
information on the record of this review
that demonstrates that this rate is not
appropriate to use as AFA in the current
review, we determine that this rate has
relevance.
As this rate is both reliable and
relevant, we determine that it has
probative value, and is thus in
accordance with section 776(c)’s
requirement that secondary information
be corroborated to the extent practicable
(i.e., that it has probative value).
Voluntary Respondents
Section 782(a) of the Act provides that
the Department, in any investigation
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under subtitle A or B or a review under
section 751(a) in which the
administering authority has, under
section 777A(c)(2), limited the number
of exporters or producers examined, or
determined a single country–wide rate,
the administering authority shall
establish an individual weightedaverage dumping margin for any
exporter or producer not initially
selected for individual examination
under such sections who submits to the
administering authority the information
requested from exporters or producers
selected for examination, if (1) such
information is so submitted by the date
specified for exporters and producers
that were initially selected for
examination; and (2) the number of
exporters or producers who have
submitted such information is not so
large that individual examination of
such exporters or producers would be
unduly burdensome and inhibit the
timely completion of the investigation.
Qingdao Saturn
As discussed in the ‘‘General
Background’’ section above, between
May 7 and 23, 2007, Qingdao Saturn
submitted voluntary responses to the
Department’s NME questionnaire. In
Qingdao Saturn’s questionnaire
responses, Qingdao Saturn requested
that the Department calculate an
individual weighted–average dumping
margin for Qingdao Saturn, pursuant to
section 782(a) of the Act. Additionally,
between October 2 and 15, 2007,
Qingdao Saturn requested that the
Department calculate an individual
weighted–average dumping margin for
Qingdao Saturn, pursuant to section
782(a) of the Act, arguing that the
Department has the resources and time
to review Qingdao Saturn as a voluntary
respondent due to Huaiyang Hongda’s
lack of participation in this proceeding.
Moreover, on October 9, 2007,
Petitioners submitted comments
requesting that the Department not
review Qingdao Saturn as a voluntary
respondent, pursuant to section 782(a)
of the Act, because Department does not
have the additional resources to
consider Qingdao Saturn’s data so late
in the proceeding. Furthermore, in their
comments, Petitioners stated that the
Department has not yet determined how
it will treat Huaiyang Hongda in the
preliminary results.
For these preliminary results, the
Department has not examined any of the
submissions by Qingdao Saturn because
of the Department’s resource constraints
and the Department’s decision to only
review three exporters. Although
Qingdao Saturn is correct that Huaiyang
Hongda has not responded to the
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69657
Department’s supplemental
questionnaires, as discussed above in
the ‘‘Huaiyang Hongda’’ section, the
Department has not received
communication from Huaiyang Hongda
that it is not going to participate as an
active respondent in this proceeding. In
certain circumstances, the Department
has determined to review a voluntary
respondent because (1) another
respondent notified the Department that
it was not going to participate; and (2)
reviewing this voluntary respondent
would not be unduly burdensome, given
time and resource constraints. See
Certain Frozen Warmwater Shrimp from
the People’s Republic of China: Notice
of Final Results and Rescission, in Part,
2004/2006 Antidumping Duty
Administrative Review and New
Shipper Reviews, 72 FR 52049
(September 12, 2007) and accompany
Issues and Decision Memorandum at
Comment 15; see also Certain Frozen
Warmwater Shrimp from the People’s
Republic of China: Preliminary Results
and Partial Rescission of the 2004/2006
Administrative Review and Preliminary
Intent to Rescind 2004/2006 New
Shipper Review, 72 FR 10645, 10647,
and 10655 (March 9, 2007). However, in
this proceeding, although Huaiyang
Hongda has chosen to not respond to
the Department’s supplemental
questionnaires, Huaiyang Hongda is still
under review. Thus, the Department has
devoted time and resources to the
consideration of Huaiyang Hongda for
these preliminary results.
Additionally, the Department finds
that, while Qingdao Saturn is correct
that the Department can choose to
review a voluntary respondent, section
782(a)(2) of the Act provides that the
Department may do so if reviewing such
an exporter or producer is not ‘‘unduly
burdensome and inhibit the timely
completion of the investigation.’’
However, the Department finds that,
given the limited amount of time
remaining after Huaiyang Hongda
stopped responding to the Department’s
questionnaires, the Department did not
have an adequate amount of time to
examine Qingdao Saturn’s responses for
these preliminary results.
The Department notes that the
analysis of initial questionnaire
responses makes up only a limited
portion of the work performed with
respect to any given respondent. The
Department frequently issues
supplemental questionnaires, collects
surrogate value data for the factors of
production (‘‘FOPs’’) used by each
individual respondent, identifies and
resolves any issues with respect to such
data, and calculates a separate margin
for each company. See Notice of Final
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Determination of Sales at Less Than
Fair Value and Negative Final
Determination of Critical
Circumstances: Certain Color Television
Receivers from the People’s Republic of
China, 69 FR 20594 (April 16, 2004) and
accompanying Issues and Decision
Memorandum at Comment 2. Each of
these activities requires the expenditure
of significant resources. Given the
limited amount of time available, the
Department lacks the resources to
analyze Qingdao Saturn as a voluntary
respondent for these preliminary
results, pursuant to section 782(a) of the
Act. Moreover, in addition to the
caseload identified in the Respondent
Selection Memo as a factor to limit the
number of respondents, the office
responsible for this proceeding, AD/
CVD Operations Office 9, is responsible
for conducting five new antidumping
investigations initiated subsequent to
the selection of respondents in this
review. Thus, it does not have
significant additional resources to apply
to Qingdao Saturn.
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NME Country Status
In every case conducted by the
Department involving the PRC, the PRC
has been treated as an NME country. In
accordance with section 771(18)(C)(i) of
the Act, any determination that a foreign
country is an NME country shall remain
in effect until revoked by the
administering authority. See Brake
Rotors From the People’s Republic of
China: Final Results and Partial
Rescission of the 2004/2005
Administrative Review and Rescission
of 2004/2005 New Shipper Review, 71
FR 66304 (November 14, 2006). None of
the parties to this proceeding has
contested such treatment. Accordingly,
we calculated NV in accordance with
section 773(c) of the Act, which applies
to NME countries.
Separate Rate Determinations
A designation as an NME remains in
effect until it is revoked by the
Department. See section 771(18)(C) of
the Act. Accordingly, there is a
rebuttable presumption that all
companies within the PRC are subject to
government control and, thus, should be
assessed a single antidumping duty rate.
See Notice of Final Determination of
Sales at Less Than Fair Value, and
Affirmative Critical Circumstances, In
Part: Certain Lined Paper Products From
the People’s Republic of China, 71 FR
53079 (September 8, 2006); Final
Determination of Sales at Less Than
Fair Value and Final Partial Affirmative
Determination of Critical
Circumstances: Diamond Sawblades
and Parts Thereof from the People’s
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15:35 Dec 07, 2007
Jkt 214001
Republic of China, 71 FR 29303 (May
22, 2006).
It is the Department’s standard policy
to assign all exporters of the
merchandise subject to review in NME
countries a single rate unless an
exporter can affirmatively demonstrate
an absence of government control, both
in law (de jure) and in fact (de facto),
with respect to exports. To establish
whether a company is sufficiently
independent to be entitled to a separate,
company–specific rate, the Department
analyzes each exporting entity in an
NME country under the test established
in Notice of Final Determination of
Sales at Less than Fair Value: Sparklers
from the People’s Republic of China, 56
FR 20588 (May 6, 1991) (‘‘Sparklers’’),
as amplified by 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) (‘‘Silicon Carbide’’).
A. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) an absence of
restrictive stipulations associated with
an individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) any other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
Throughout the course of this
administrative review, only two of the
mandatory respondents, Jinxiang Dong
Yun and Shanghai LJ, have placed
sufficient evidence on the record that
demonstrate absence of de jure control.
Additionally, all of the separate rate
companies have placed on the record a
number of documents to demonstrate
absence of de jure control including the
‘‘Foreign Trade Law of the People’s
Republic of China’’ and the
‘‘Administrative Regulations of the
People’s Republic of China Governing
the Registration of Legal Corporations.’’
The Department has analyzed such PRC
laws and has found that they establish
an absence of de jure control. See
Preliminary Results of New Shipper
Review: Certain Preserved Mushrooms
From the People’s Republic of China, 66
FR 30695, 30696 (June 7, 2001). We
have no information in this proceeding
that would cause us to reconsider this
determination. Thus, we believe that the
evidence on the record supports a
preliminary finding of an absence of de
jure government control based on: (1) an
absence of restrictive stipulations
associated with the exporter’s business
license; (2) the legal authority on the
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record decentralizing control over the
respondent, as demonstrated by the PRC
laws placed on the record of this review;
and (3) other formal measures by the
government decentralizing control of
companies.11
B. Absence of De Facto Control
As stated in previous cases, there is
some evidence that certain enactments
of the PRC central government have not
been implemented uniformly among
different sectors and/or jurisdictions in
the PRC. See Final Determination of
Sales at Less Than Fair Value: Certain
Preserved Mushrooms from the People’s
Republic of China, 63 FR 72255
(December 31, 1998). Therefore, the
Department has determined that an
analysis of de facto control is critical in
determining whether respondents are,
in fact, subject to a degree of
government control which would
preclude the Department from assigning
separate rates. The Department typically
considers four factors in evaluating
whether each respondent is subject to
de facto government control of its
export functions: (1) whether the
exporter sets its own export prices
independent of the government and
without the approval of a government
authority; (2) whether the respondent
has the authority to negotiate and sign
contracts, and other agreements; (3)
whether the respondent has autonomy
from the government in making
decisions regarding the selection of its
management; and (4) whether the
respondent retains the proceeds of its
export sales and makes independent
decisions regarding disposition of
profits or financing of losses. See Silicon
Carbide, 59 FR at 22587; Sparklers, 56
FR at 20589.
The Department conducted a separate
rates analysis for (1) two of the
mandatory respondents chosen for an
administrative review: Jinxiang Dong
Yun and Shanghai LJ; and (2) the
separate rate companies upon which an
administrative review was requested but
which were not chosen as mandatory
respondents.
These companies have all asserted the
following: (1) there is no government
participation in setting export prices; (2)
sales managers and authorized
employees have the authority to create
binding sales contracts; (3) they do not
11 This preliminary finding applies to (1) two of
the selected respondents of this administrative
review: Jinxiang Dong Yun and Shanghai LJ; and (2)
the separate rate companies of this administrative
review: Sunny; Qufu Dong Bao; Weifang Shennong;
Jinxiang Shanyang; Qingdao Xintianfeng; Shandong
Longtai; Jining Trans-High; Shenzhen Fanhui; Taian
Ziyang; Anqiu; Shanghai Ever Rich; Heze Ever-Best;
Qingdao Saturn; Henan Weite; and Jinan Farmlady.
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have to notify any government
authorities of management selections;
(4) there are no restrictions on the use
of export revenue; and (5) each is
responsible for financing its own losses.
The questionnaire responses of two of
the mandatory respondents, Jinxiang
Dong Yun and Shanghai LJ, and the
separate rate companies do not suggest
that pricing is coordinated among
exporters. During our analysis of the
information on the record, we found no
information indicating the existence of
government control of export activities.
Consequently, we preliminarily
determine that Jinxiang Dong Yun,
Shanghai LJ, and the separate rate
companies have met the criteria for the
application of a separate rate.
However, as discussed previously, the
Department is not granting one of the
mandatory respondents, Huaiyang
Hongda, a separate rate because
Huaiyang Hongda failed to respond to
the supplemental questionnaire issued
by the Department that contained
several questions regarding Huaiyang
Hongda’s eligibility for a separate rate.
As a result, we cannot confirm or verify
the separate rate information that
Huaiyang Hongda submitted in its
questionnaire responses.
Surrogate Country
When the Department investigates
imports from an NME country, section
773(c)(1) of the Act directs it to base NV,
in most circumstances, on the NME
producer’s FOPs, valued in a surrogate
market economy country or countries
considered to be appropriate by the
Department. In accordance with section
773(c)(4) of the Act, in valuing the
FOPs, the Department shall utilize, to
the extent possible, the prices or costs
of FOPs in one or more market economy
countries that are: (1) at a level of
economic development comparable to
that of the NME country; and (2)
significant producers of comparable
merchandise. The sources of the
surrogate factor values are discussed
under the ‘‘Normal Value’’ section
below and in the Memorandum to the
File through James C. Doyle, Director,
Office 9 and Alex Villanueva, Program
Manager, Office 9 from Julia Hancock,
Senior Case Analyst, Office 9: Surrogate
Factor Valuations for the Preliminary
Results of the 12th Administrative
Review (November 30, 2007)
(‘‘Surrogate Values Memo’’).
As discussed in the ‘‘NME Country
Status’’ section, the Department
considers the PRC to be an NME
country. The Department determined
that India, Sri Lanka, Indonesia,
Philippines, and Egypt are countries
comparable to the PRC in terms of
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economic development. See
Memorandum from Ron Lorentzen,
Director, Office of Policy, to Alex
Villanueva, Program Manager, China/
NME Group, Office 9: Antidumping
Administrative Review of Fresh Garlic
from the People’s Republic of China:
Request for a List of Surrogate Countries
(June 1, 2007) (‘‘Surrogate Country
List’’). Moreover, it is the Department’s
practice to select an appropriate
surrogate country based on the
availability and reliability of data from
the countries. See Department Policy
Bulletin No. 04.1: Non–Market Economy
Surrogate Country Selection Process
(March 1, 2004) (‘‘Policy Bulletin’’). In
this case, the Department has found that
India and Egypt are both significant
producers of comparable merchandise.
The Department finds India to be a
reliable source for surrogate values
because India is at a similar level of
economic development pursuant to
773(c)(4) of the Act, is a significant
producer of comparable merchandise,
and has publically available and reliable
data. Furthermore, the Department notes
that India has been the primary
surrogate country in past segments, and
the only surrogate value data based
submitted on the record are from Indian
sources. Given the above facts, the
Department has selected India as the
primary surrogate country for this
review. See Memorandum to the File,
through James C. Doyle, Office Director,
Office 9, Import Administration, and
Alex Villanueva, Program Manager,
Office 9, from Julia Hancock, Senior
Case Analyst, Subject: 12th
Administrative Review of Fresh Garlic
from the People’s Republic of China:
Selection of a Surrogate Country
(November 30, 2007) (‘‘Surrogate
Country Memo’’).
U.S. Price
In accordance with section 772(a) of
the Act, we calculated the export price
(‘‘EP’’) for sales to the United States for
Jinxiang Dong Yun and Shanghai LJ
because the first sale to an unaffiliated
party was made before the date of
importation and the use of constructed
EP (‘‘CEP’’) was not otherwise
warranted. We calculated EP based on
the price to unaffiliated purchasers in
the United States. In accordance with
section 772(c) of the Act, as appropriate,
we deducted from the starting price to
unaffiliated purchasers foreign inland
freight, brokerage and handling, and
marine insurance. For Jinxiang Dong
Yun and Shanghai LJ, each of these
services was either provided by an NME
vendor or paid for using an NME
currency. Thus, we based the deduction
of these movement charges on surrogate
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69659
values. See Surrogate Values Memo for
details regarding the surrogate values for
movement expenses. Additionally,
Jinxiang Dong Yun reported that its
international freight was provided by a
market economy carrier and paid in U.S.
dollars, so we used the actual cost per
kilogram of the freight. Moreover,
Jinxiang Dong Yun reported certain U.S.
Customs and other expenses that must
be deducted from the starting price to
unaffiliated purchasers. Accordingly,
we will deduct these expenses from the
starting price to unaffiliated purchasers,
as reported by Jinxiang Dong Yun. See
Memorandum to the File, through Alex
Villanueva, Program Manager, Office 9,
from Michael Holton, Senior Analyst,
Office 9; Company Analysis
Memorandum in the Antidumping Duty
New Shipper Review of Fresh Garlic
from the People’s Republic of China
(‘‘PRC’’): Jinxiang Dong Yun (November
30, 2007).
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act
provides that the Department shall
determine NV using an FOP
methodology if the merchandise is
exported from an NME and the
information does not permit the
calculation of NV using home–market
prices, third–country prices, or
constructed value under section 773(a)
of the Act. The Department calculates
NV using each of the FOPs that a
respondent consumes in the production
of a unit of the subject merchandise
because the presence of government
controls on various aspects of NMEs
renders price comparisons and the
calculation of production costs invalid
under the Department’s normal
methodologies. However, there are
circumstances in which the Department
will modify its standard FOP
methodology, choosing to apply a
surrogate value to an intermediate input
instead of the individual FOPs used to
produce that intermediate input. In
some cases, a respondent may report
factors used to produce an intermediate
input that accounts for an insignificant
share of total output. When the potential
increase in accuracy to the overall
calculation that results from valuing
each of the FOPs is outweighed by the
resources, time, and burden such an
analysis would place on all parties to
the proceeding, the Department has
valued the intermediate input directly
using a surrogate value. See Notice of
Final Determination of Sales at Less
Than Fair Value: Polyvinyl Alcohol
from the People’s Republic of China, 68
FR 47538 (August 11, 2003), and
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accompanying Issues and Decision
Memorandum at Comment 1 (‘‘PVA’’)
(citing to Final Results of First New
Shipper Review and First Antidumping
Duty Administrative Review: Certain
Preserved Mushrooms from the People’s
Republic of China, 66 FR 31204 (June
11, 2001)).
In the 9th Review Final Results, the
Department recognized that there were
serious discrepancies between the
reported FOPs of the different
respondents and that the standard FOP
methodology might not be adequate to
apply in future reviews.12 In the 10th
administrative review, the Department
conducted a ‘‘harvest verification’’ of
several garlic producers in the PRC,
interviewing farmers, studying farming
techniques, and reviewing standard PRC
garlic production record–keeping.13 In
analyzing the questionnaire responses
and ‘‘harvest verification’’ reports in the
10th administrative review, the
Department determined that, to capture
the complete costs of producing fresh
garlic, the methodology of valuing the
intermediate product, the fresh garlic
bulb, would more accurately capture the
complete costs of producing subject
merchandise.14 In the two previous
administrative reviews, the Department
also stated that ‘‘should a respondent be
able to provide sufficient factual
evidence that it maintains the necessary
information in its internal books and
records that would allow us to establish
the completeness and accuracy of the
reported FOPs, we will revisit this issue
and consider whether to use its reported
FOPs in the calculation of NV.’’ 10th
Review Final Results, 71 FR at 26331;
Fresh Garlic from the People’s Republic
of China: Partial Rescission and
Preliminary Results of the Eleventh
Administrative Review and New
Shipper Reviews, 71 FR 71510, 71520
(December 11, 2006).
In the course of this review, the
Department has requested and obtained
a vast amount of detailed information
from the respondents with respect to
each company’s garlic production
practices. However, based on our
analysis of the information on the
record and for the reasons outlined in
the Memorandum to the File through
James C. Doyle, Director, Office 9 and
Alex Villanueva, Program Manager,
Office 9 from Matthew Renkey, Senior
Case Analyst, and Michael Holton,
Senior Case Analyst, Office 9: 12th
Administrative Review of the
Antidumping Duty Order on Fresh
Garlic From the People’s Republic of
China: Intermediate Input Methodology
(November 30, 2007) (‘‘Intermediate
Product Memo’’), we continue to believe
that the respondents were unable to
accurately record and substantiate the
complete costs of growing garlic during
the POR.
Thus, in the preliminary results for
this administrative review, in order to
eliminate the distortions in our
calculation of NV, for all of the reasons
identified above and described in the
Intermediate Product Memo, the
Department applied an ‘‘intermediate–
product valuation methodology’’ to the
2 mandatory companies, Jinxiang Dong
Yun and Shanghai LJ, for which we are
calculating an antidumping duty margin
in these preliminary results. Using this
methodology, the Department calculated
NV by starting with a surrogate value for
the garlic bulb (i.e., the ‘‘intermediate
product’’), adjusted for yield losses
during the processing stages, and adding
the respondents’ processing costs,
which were calculated using their
reported usage rates for processing fresh
garlic. For a complete explanation of the
Department’s analysis, and for a more
detailed analysis of these issues with
respect to each respondent, see the
Intermediate Product Memo.
12 See Fresh Garlic from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review, 70 FR 34082 (June 13, 2005)
(‘‘9th Review Final Results’’).
13 See Memorandum to the File from Matthew
Renkey, Senior Case Analyst; 12th Administrative
Review of Fresh Garlic from the People’s Republic
of China: Intermediate Input Methodology
Memoranda from the 10th Administrative Review
Final Results and 11th Administrative Review
Preliminary Results, (November 30, 2007), in which
the Department placed the Intermediate Input
Methodology memos from the tenth and eleventh
Administrative Reviews on the record of this
proceeding, inclusive of the verification reports
resulting from the ‘‘harvest verification.’’
14 See Fresh Garlic from the People’s Republic of
China: Final Results and Partial Rescission of
Antidumping Duty Administrative Review and
Final Results of New Shipper Reviews, 71 FR 26329
(May 4, 2006) (‘‘10th Review Final Results’’), and
accompanying Issues and Decision Memorandum at
Comment 1.
2. Factor Valuations
In accordance with section 773(c) of
the Act, the Department calculated NV
based on the intermediate product value
and processing FOPs reported by the
respondents for the POR. To calculate
NV, the Department multiplied the
reported per–unit factor quantities by
publicly available surrogate values in
India with the exception of the surrogate
value for ocean freight, which we
obtained from an international freight
company. In selecting the surrogate
values, the Department considered the
quality, specificity, and
contemporaneity of the data. As
appropriate, the Department adjusted
input prices by including freight costs to
make them delivered prices. The
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15:35 Dec 07, 2007
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PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
Department calculated these freight
costs based on the shorter of the
reported distance from the domestic
supplier to the factory or the distance
from the port in accordance with the
decision in Sigma Corporation v. United
States, 117 F.3d 1401 (Fed. Cir. 1997)
(‘‘Sigma’’). The Department made
currency conversions into U.S. dollars,
in accordance with section 773A(a) of
the Act, based on the exchange rates in
effect on the dates of the U.S. sale(s) as
certified by the U.S. Federal Reserve
Bank.
Garlic Bulb Value
In applying the intermediate input
methodology, the Department sought
foremost to identify the best available
surrogate value for the fresh garlic bulb
input to production, as opposed to
identifying a surrogate value for garlic
seed. Therefore, the Department has
valued the fresh garlic bulb using prices
for the size ranges of ‘‘A’’ and ‘‘super–
A’’ grade garlic bulb in India, as
published by Azadpur Agriculture
Produce Marketing Committee
(‘‘APMC’’) in its ‘‘Market Information
Bulletin’’ (the ‘‘Bulletin’’). Azadpur
APMC is the largest fruit and vegetable
market in Asia and has become a
‘‘National Distribution Centre’’ for
important Indian agricultural products
such as garlic. The Bulletin is published
by the Azadpur APMC on each trading
day and contains, among other things, a
list of all fruits and vegetables sold on
the previous trading day, the amount
(by weight) of each fruit or vegetable
sold on that day, and a low, high and
modal price for each commodity sold.
The Department notes that the ‘‘A’’
grade garlic typically ranges from 40 55 millimeters (‘‘mm’’) in diameter, and
the ‘‘super–A’’ grade garlic ranges 40
mm and above in diameter. See
Petitioners’ Second Surrogate Value
Submission, (September 20, 2007) at
Attachment 1; Petitioners’ First
Surrogate Value Submission, (August 2,
2007) at Exhibits 4–5.
As the Department determined in past
reviews, the price at which garlic is sold
is heavily dependent upon physical
characteristics, such as bulb size and
number of cloves. See 9th Review Final
Results, 70 FR 34082 at Comment 2;
10th Review Final Results, 71 FR 26329
at Comment 2. Accordingly, the
Department finds that it is important to
use surrogate Indian garlic values
reflecting sales of garlic bulbs of similar
diameter to that of Jinxiang Dong Yun’s
and Shanghai LJ’s merchandise during
the POR. Therefore, for these
preliminary results, the Department
finds that the ‘‘A’’ grade and ‘‘super–A’’
grade garlic data from Azadpur APMC
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Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices
Interested parties may submit case
briefs and/or written comments no later
than 30 days after the date of
Weighted–Average publication of these preliminary results
Manufacturer/Exporter
Margin (Percent)
of review. See 19 CFR 351.309(c)(ii).
Rebuttal briefs and rebuttals to written
Heze Ever–Best Intercomments, limited to issues raised in
national Trade Co.,
such briefs or comments, may be filed
Ltd. ............................
27.49
no later than 37 days after the date of
Qingdao Saturn Interpublication of these preliminary results
national Trade Co.,
Ltd. ............................
27.49 of review. See 19 CFR 351.309(d). The
Department urges interested parties to
Sunny Import & Export
Co., Ltd. ....................
27.49 provide an executive summary of each
Henan Weite Industrial
argument contained within the case
Co., Ltd. ....................
27.49 briefs and rebuttal briefs.
Jinan Farmlady Trading
Any interested party may request a
Co., Ltd. ....................
27.49 hearing within 30 days of publication of
PRC–wide Rate15 .........
376.67 these preliminary results. See 19 CFR
15 The PRC-Wide entity includes Huaiyang
351.310(c). Requests should contain the
Hongda, APS Qingdao, Fujian Meitan, following information: (1) The party’s
Hongchang, Jining Haijiang, Jining Solar, name, address, and telephone number;
Jinxian County Huaguang, Laiwu Hongyang,
Pizhou Guangda, Qingdao Bedow, Qingdao (2) the number of participants; and (3)
Camel, Qingdao H&T, Qingdao Potenza, a list of the issues to be discussed. Oral
Qingdao
Shiboliang,
Rizhao
Xingda, presentations will be limited to issues
Shandong Chengshun, Shandong Dongsheng, raised in the briefs. If we receive a
Shandong Garlic, Shanghai Ba-Shi, and T&S.
request for a hearing, we plan to hold
the hearing seven days after the
The Department will disclose
deadline for submission of the rebuttal
calculations performed for these
preliminary results to the parties within briefs at the U.S. Department of
Commerce, 14th Street and Constitution
five days of the date of publication of
Avenue, NW, Washington, DC 20230.
Preliminary Results of the Reviews
this notice in accordance with 19 CFR
The Department will issue the final
351.224(b).
results of this administrative review,
The Department has determined that
In accordance with 19 CFR
which will include the results of its
the following preliminary dumping
351.301(c)(3)(ii), for the final results of
analysis of issues raised in any such
margins exist for the period November
this administrative review, interested
comments, within 120 days of
1, 2005, through October 31, 2006:
parties may submit publicly available
publication of these preliminary results,
information to value FOPs within 20
pursuant to section 751(a)(3)(A) of the
FRESH GARLIC FROM THE PRC
days after the date of publication of
Act.
Weighted–Average these preliminary results. Interested
Manufacturer/Exporter
Assessment Rates
parties must provide the Department
Margin (Percent)
with supporting documentation for the
Upon completion of this
Shanghai LJ Interpublicly available information to value
administrative review, the Department
national Trading Co.,
each FOP. Additionally, in accordance
will determine, and CBP shall assess,
Ltd. ............................
35.05 with 19 CFR 351.301(c)(1), for the final
antidumping duties on all appropriate
Jinxiang Dong Yun
results of this administrative review,
entries. The Department intends to issue
Freezing Storage Co.,
assessment instructions to CBP 15 days
Ltd. ............................
23.21 interested parties may submit factual
information to rebut, clarify, or correct
after the date of publication of the final
Qufu Dongbao Import &
factual information submitted by an
results of review. If these preliminary
Export Trade Co.,
Ltd. ............................
27.49 interested party less than ten days
results are adopted in our final results
Weifang Shennong
before, on, or after, the applicable
of review, the Department shall
Foodstuff Co., Ltd. ....
27.49 deadline for submission of such factual
determine, and CBP shall assess,
Jinxiang Shanyang
information. However, the Department
antidumping duties on all appropriate
Freezing Storage Co.,
notes that 19 CFR 351.301(c)(1) permits
entries. Pursuant to 19 CFR
Ltd. ............................
27.49
new information only insofar as it
351.212(b)(1), we will calculate
Qingdao Xintianfeng
rebuts, clarifies, or corrects information
importer–specific (or customer) ad
Foods ........................
27.49
recently placed on the record. The
valorem duty assessment rates based on
Shandong Longtai
Department generally cannot accept the the ratio of the total amount of the
Fruits and Vegetables
Co., Ltd. ....................
27.49 submission of additional, previously
dumping margins calculated for the
absent–from-the–record alternative
Jining Trans–High Tradexamined sales to the total entered
ing Co., Ltd. ..............
27.49 surrogate value information pursuant to
value of those same sales. We will
Shenzhen Fanhui Im19 CFR 351.301(c)(1). See Glycine from
instruct CBP to assess antidumping
port & Export Co.,
the People’s Republic of China: Final
duties on all appropriate entries covered
Ltd. ............................
27.49 Results of Antidumping Duty
by this review if any importer–specific
Taian Ziyang Food Co.,
Administrative Review and Final
assessment rate calculated in the final
Ltd. ............................
27.49
Rescission, in Part, 72 FR 58809
results of this review is above de
Anqiu Friend Food Co.,
minimis.
Ltd. ............................
27.49 (October 17, 2007) and accompanying
Issues and Decision Memorandum at
For Qingdao Tiantaixing, Zhengzhou
Shanghai Ever Rich
Trade Company ........
27.49 Comment 2.
Harmoni, Golden Bridge, Shanghai
are the best available and most
appropriate information on the record to
value the garlic bulb input, pursuant to
section 773(c) of the Act, for the reasons
stated below. The Department has found
that the data from Azadpur APMC
satisfy the Department’s surrogate value
selection criteria. See Fresh Garlic from
the People’s Republic of China: Final
Results and Partial Rescission of the
Eleventh Administrative Review and
New Shipper Reviews, 72 FR 34438,
34440 (June 22, 2007), and
accompanying Issues and Decision
Memorandum at Comment 2.
Because the Department is able to
determine the size of ‘‘A’’ and ‘‘super–
A’’ grade garlic and Jinxiang Dong Yun
and Shanghai LJ provided the size of the
garlic bulb, the Department is
calculating the surrogate value for the
garlic bulb using a simple average of the
Azadpur data for ‘‘A’’ and ‘‘super–A’’
grade garlic for Jinxiang Dong Yun and
Shanghai LJ. For further discussion of
the Department’s calculation for the
surrogate value for the garlic bulb, as
well as other surrogate values used, see
the Surrogate Values Memo.
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Continued
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Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices
McCormick, and Zhangqiu Qingyuan,
companies for which this review is
preliminarily rescinded, antidumping
duties shall be assessed at rates equal to
the cash deposit of estimated
antidumping duties required at the time
of entry, or withdrawal from warehouse,
for consumption, in accordance with 19
CFR 351.212(c)(2).
DEPARTMENT OF COMMERCE
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of the
administrative review for 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)(2)(C) of the Act: (1) for
the exporters listed above, the cash–
deposit rate will be that established in
these final results of review (except, if
the rate is zero or de minimis, no cash
deposit will be required); (2) for
previously reviewed or investigated
companies 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 other PRC exporters of subject
merchandise, 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 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
exporter that supplied that exporter.
These deposit requirements, when
imposed, shall remain in effect until
further notice.
Import Administration,
International Trade Administration,
Department of Commerce.
DATES: Effective Date: December 10,
2007.
SUMMARY: In response to requests for
administrative review received on July
31, 2007, the Department of Commerce
(the Department) initiated an
administrative review of the
antidumping duty order on certain pasta
from Italy covering the period July 1,
2006, through June 30, 2007.1 As a
result of timely withdrawals of request
for review, we are rescinding this
review, in part, with respect to
Valdigrano Di Flavio Pagani SrL
(Valdigrano), Industria Alimentare
Colavita, S.p.A. (Indalco) Atar S.r.L.
(Atar), Rummo S.P.A. Molina E
Pastificio (Rummo), Pastificio Pagani
S.p.A. (Pagani), Pastificio Carmine
Russo and Pastificio Russo di Cicciano
(collectively, Russo), and Domenico
Paone fu Erasmo S.p.A. (Domenico).
FOR FURTHER INFORMATION CONTACT:
Christopher Hargett, AD/CVD
Operations, Office 3, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–4161.
SUPPLEMENTARY INFORMATION:
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Notification to Importers
This notice also serves as a
preliminary 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 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.
This administrative review, and this
notice are in accordance with sections
751(a)(1) and 777(i) of the Act, and 19
CFR 351.213 and 351.221(b)(4).
Dated: November 30, 2007.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E7–23891 Filed 12–7–07; 8:45 am]
BILLING CODE 3510–DS–S
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International Trade Administration
[A–475–818]
Certain Pasta From Italy: Notice of
Partial Rescission of Antidumping
Duty Administrative Review
AGENCY:
Background
On July 31, 2007, the Department
received a request for review from
Valdigrano, F. Divella SpA (Divella),
Pasta Zara SpA (Zara), Pastificio Di
Martino Gaetano & F.lli SrL (Di
Martino), Pastificio Felicetti SrL
(Felicetti), and from Industria Indalco.2
The Department also received a request
for an administrative review from
petitioners 3 of Atar, Rummo, Pagani,
Russo, and Domenico.4
1 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Requests for Revocation, 72 FR 48613, 48614
(August 24, 2007) (Initiation Notice).
2 See Pasta from Italy, Request for Administrative
Review of Antidumping Order, July 31, 2007.
3 Petitioners are the New World Pasta Company,
American Italian Pasta Company, and Dakota
Growers Pasta Company.
4 See Request for ’06–’07 Administrative Review
of the Antidumping Duty Order on Certain Pasta
from Italy, July 31, 2007.
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On August 24, 2007, the Department
initiated the review.5 On September 4,
2007, Valdigrano withdrew its request
for review. On September 12, 2007,
Indalco withdrew its request for review.
On October 1 and October 5, 2007,
petitioners withdrew their request for
review on Rummo, Pagani, Russo, and
Domenico. On November 21, 2007,
petitioners withdrew their request for
review on Atar.
On October 15, 2007, the Department
selected Divella, Zara and Atar as
respondents in the instant review.6 On
October 15, 2007, the Department issued
antidumping duty questionnaires to
Divella, Zara and Atar.7
Scope of Order
Imports covered by the antidumping
duty order on pasta from Italy include
shipments of certain non-egg dry pasta
in packages of five pounds (2.27
kilograms) or less, whether or not
enriched or fortified or containing milk
or other optional ingredients such as
chopped vegetables, vegetable purees,
milk, gluten, diastasis, vitamins,
coloring and flavorings, and up to two
percent egg white. The pasta covered by
this order is typically sold in the retail
market, in fiberboard or cardboard
cartons, or polyethylene or
polypropylene bags of varying
dimensions.
Excluded from the scope of this order
are refrigerated, frozen, or canned
pastas, as well as all forms of egg pasta,
with the exception of non-egg dry pasta
containing up to two percent egg white.
Also excluded from the order on pasta
from Italy are imports of organic pasta
from Italy that are accompanied by the
appropriate certificate issued by the
Instituto Mediterraneo Di Certificazione,
by Bioagricoop Scrl, by QC&I
International Services, by Ecocert Italia
or by Consorzio per il Controllo dei
Prodotti Biologici, by Associazione
Italiana per l’Agricoltura Biologica, or
by Instituto per la Certificazione Etica e
Ambientale (ICEA) are also excluded
from this order.
The merchandise subject to the
antidumping duty order on pasta from
Italy is currently classifiable under item
1902.19.20 of the Harmonized Tariff
Schedule of the United States (HTSUS).
Although the HTSUS subheading is
provided for convenience and Customs
purposes, the written description of the
merchandise subject to the order is
dispositive.
5 See
Initiation Notice.
Selection of Respondents for Individual
Review Memo from the Team to Melissa Skinner,
dated October 15, 2007.
7 See request for information from the Department
to Divella, Zara and Atar, dated October 15, 2007.
6 See
E:\FR\FM\10DEN1.SGM
10DEN1
]]>Agencies
[Federal Register Volume 72, Number 236 (Monday, December 10, 2007)]
[Notices]
[Pages 69652-69662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23891]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic from the People's Republic of China: Notice of
Preliminary Results and Preliminary Partial Rescission of the Twelfth
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting an
administrative review 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, 2005, through October 31, 2006. As
discussed below, we preliminarily determine that certain respondents in
this review made sales in the United States at prices below
[[Page 69653]]
normal value (``NV''). If these preliminary results are adopted in our
final results of review, we will 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.
EFFECTIVE DATE: December 10, 2007.
FOR FURTHER INFORMATION CONTACT: Julia Hancock, Michael Holton, or
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) 482-1394, (202) 482-1324, and (202) 482-2312, respectively.
SUPPLEMENTARY INFORMATION:
General Background
On November 16, 1994, the Department published in the Federal
Register the antidumping duty order on fresh garlic from the PRC. See
Antidumping Duty Order: Fresh Garlic From the People's Republic of
China, 59 FR 59209 (November 16, 1994) (``Order''). On November 1,
2006, the Department published a notice of opportunity to request an
administrative review of the antidumping duty order on fresh garlic
from the PRC for the period November 1, 2005, through October 31, 2006.
See Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation: Opportunity to Request Administrative Review, 71 FR
64240 (November 1, 2006).
On November 30, 2006, we received requests from both Petitioners
\1\ and certain PRC companies to conduct administrative reviews for a
total of 52 companies. On December 27, 2006, the Department initiated
an administrative review of 52 \2\ producers/exporters of subject
merchandise from the PRC. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 71 FR 77720 (December 27,
2006) (``Initiation Notice'').
---------------------------------------------------------------------------
\1\ Petitioners are the members of the Fresh Garlic Producers
Association: Christopher Ranch L.L.C.; The Garlic Company; Valley
Garlic; and Vessey and Company, Inc. (hereinafter referred to as
``Petitioners'').
\2\ Anqiu Friend Food Co., Ltd. (``Anqiu''); APS Qingdao; Fujian
Meitan Import & Export Xiamen Corporation (``Fujian Meitan'');
Golden Bridge International, Inc. (``Golden Bridge''); Henan Weite
Industrial Co., Ltd. (``Henan Weite''); Heze Ever-Best International
Trade Co., Ltd. (``Heze Ever-Best''); Hongchang Fruits & Vegetable
Products (``Hongchang''); Huaiyang Hongda Dehydrated Vegetable
Company (``Huaiyang Hongda''); Jinan Farmlady Trading Co., Ltd.
(``Jinan Farmlady''); Jinan Yipin Corporation, Ltd. (``Jinan
Yipin''); Jining Haijiang Trading Co., Ltd. (``Jining Haijiang'');
Jining Solar Summit Trade Co., Ltd. (``Jining Solar''); Jining
Trans-High Trading Co., Ltd. (``Jining Trans-High''); Jinxian County
Huaguang Food Import & Export Co., Ltd. (``Jinxian County
Huaguang''); Jinxiang Dong Yun Freezing Storage Co., Ltd. (aka
Jinxiang Eastward Shipping Import and Export Limited Company)
(``Jinxiang Dong Yun''); Jinxiang Shanyang Freezing Storage Co.,
Ltd. (``Jinxiang Shanyang''); Laiwu Hongyang Trading Company Ltd.
(``Laiwu Hongyang''); Linshu Dading Private Agricultural Products
Co., Ltd. (``Linshu Dading''); Omni D[eacute]cor China Ltd.
(``Omni''); 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 Saturn International Trade Co.,
Ltd. (``Qingdao Saturn''); Qingdao Shiboliang Food Co., Ltd.
(``Qingdao Shiboliang''); Qingdao Tiantaixing Foods Co., Ltd.
(``Qingdao Tiantaixing''); Qingdao Titan Shipping LLC (``Qingdao
Titan''); Qingdao Xintianfeng Foods (``Qingdao Xintianfeng''); Qufu
Dongbao Import & Export Trade Co., Ltd. (``Qufu Dongbao''); 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); Shandong Longtai
Fruits and Vegetables Co., Ltd. (``Shandong Longtai''); Shandong
Wonderland Organic Food Co., Ltd. (``Shandong Wonderland'');
Shanghai Ba-Shi Yuexin Logistics Development (``Shanghai Ba-Shi'');
Shanghai Ever Rich Trade Company (``Shanghai Ever Rich''); Shanghai
LJ International Trading Co., Ltd. (``Shanghai LJ''); Shanghai
McCormick Foods Co., Ltd. (``Shanghai McCormick''); Shenzhen Fanhui
Import & Export Co., Ltd. (``Shenzhen Fanhui''); Shenzhen Xinboda
Industrial Co., Ltd. (``Shenzhen Xinboda''); Sunny Import & Export
Co., Ltd. (``Sunny''); T&S International, LLC (``T&S''); Taian Fook
Huat Tong Kee Pte Ltd. (``Taian Fook Huat''); Taian Ziyang Food Co.,
Ltd. (``Taian Ziyang''); Weifang Hongqiao International Logistic
Co., Ltd. (``Weifang Hongqiao''); Weifang Shennong Foodstuff Co.,
Ltd. (``Weifang Shennong''); Xiang Cheng Sunny Foodstuff Factory
(``Xiang Cheng''); XuZhou Simple Garlic Industry Co., Ltd (``XuZhou
Simple''); Zhangqiu Qingyuan Vegetable Co., Ltd. (``Zhangqiu
Qingyuan''); and Zhengzhou Harmoni Spice Co., Ltd. (``Zhengzhou
Harmoni'').
---------------------------------------------------------------------------
On March 8, 2007, in accordance with section 351.213(d)(1) of the
Department's regulations, we rescinded the administrative review with
respect to nine companies. See Fresh Garlic from the People's Republic
of China: Notice of Partial Rescission of the Twelfth Administrative
Review, 72 FR 10491 (March 8, 2007) (``Rescission Notice''). Therefore,
this review covers 43\3\ producers/exporters of the subject merchandise
and the PRC-wide entity.
---------------------------------------------------------------------------
\3\ Anqiu; APS Qingdao; Fujian Meitan; Golden Bridge; Henan
Weite; Heze Ever-Best; Hongchang; Huaiyang Hongda; Jinan Farmlady;
Jining Haijiang; Jining Solar; Jining Trans-High; Jinxian County
Huaguang; Jinxiang Dong Yun; Jinxiang Shanyang; Laiwu Hongyang;
Pizhou Guangda; Qingdao Bedow; Qingdao Camel; Qingdao H&T; Qingdao
Potenza; Qingdao Saturn; Qingdao Shiboliang; Qingdao Tiantaixing;
Qingdao Xintianfeng; Qufu Dongbao; Rizhao Xingda; Shandong
Chengshun; Shandong Dongsheng; Shandong Garlic; Shandong Longtai;
Shanghai Ba-Shi; Shanghai Ever Rich; Shanghai LJ; Shanghai
McCormick; Shenzhen Fanhui; Sunny; T&S; Taian Ziyang; Weifang
Shennong; Xiang Cheng; Zhangqiu Qingyuan; and Zhengzhou Harmoni.
---------------------------------------------------------------------------
On August 2, 2007, the Department extended the preliminary results
of this administrative review until November 30, 2007. See Fresh Garlic
from the People's Republic of China: Extension of Time Limit for the
Preliminary Results of the Twelfth Administrative Review, 72 FR 42390
(August 2, 2007).
Respondent Selection
On January 23, 2007, the Department issued a quantity and value
(``Q&V'') questionnaire to the 43 named firms that still had an active
request for review. See Letter with Attachments from Alex Villanueva,
Program Manager, to All Interested Parties, RE: Quantity and Value
Questionnaire for Fresh Garlic from the People's Republic of China,
(January 23, 2007) (``Q&V questionnaire''). Additionally, on January
23, 2007, Petitioners withdrew their request for review for nine named
firms.\4\ See Rescission Notice. Between February 2, 2007, and March 2,
2007, the Department received responses to the Q&V questionnaire from
23 firms.\5\
---------------------------------------------------------------------------
\4\ Jinan Yipin; Lindshu Dading; Omni; Qingdao Titan; Shandong
Wonderland; Shenzhen Xinboda; Taian Fook; Weifang Hongqiao; and
Xuzhou Simple.
\5\ Jinxiang Dong Yun; Huaiyang Hongda; Shanghai LJ; Qufu Dong
Bao; Weifang Shennong; Zhengzhou Harmoni; Sunny; Jinxiang Shanyang;
Qingdao Xintianfeng; Shandong Longtai; Jining Trans-High; Shenzhen
Fanhui; Taian Ziyang; Anqiu; Heze Ever-Best; Qingdao Saturn; Henan
Weite; Qingdao Tiantaixing; Xiang Cheng (producer for Shanghai LJ);
Shanghai Ever Rich; Xuzhou Simple; Shanghai McCormick; and Jinan
Farmlady. In their responses, both Xuzhou Simple and Shanghai
McCormick responses stated that they had no shipments of subject
merchandise to the United States during the POR. Moreover, between
March 13-14, 2007, the Department received revised Q&V questionnaire
responses from the following 10 firms: Anqiu; Henan Weite; Jinan
Farmlady; Jinxiang Dong Yun; Qingdao Tiantaixing; Qingdao
Xintianfeng; Qufu Dongbao; Shanghai LJ; Taiyan Ziyang; and Weifang
Shennong.
---------------------------------------------------------------------------
On February 13, 2007, Qingdao Camel withdrew its request for an
administrative review.\6\ On February 14, 2007, the Department received
a letter from Qingdao Camel stating that it would not be responding to
the Q&V questionnaire.
---------------------------------------------------------------------------
\6\ However, Petitioners did not withdraw their request for a
review of Qingdao Camel.
---------------------------------------------------------------------------
On February 15, 2007, the Department issued a second Q&V
questionnaire to the 20 firms \7\ that did not respond to the
Department's original Q&V questionnaire. See Letter with Attachments
from Alex Villanueva, Program Manager, to All Interested
[[Page 69654]]
Parties, RE: Second Quantity and Value Questionnaire for Fresh Garlic
from the People's Republic of China, (February 15, 2007) (``Second Q&V
Questionnaire'').
---------------------------------------------------------------------------
\7\ APS Qingdao; Fujian Meitan; Hongchang Fruits; Jining
Haijiang; Jining Solar; Jinxian County Huaguang; Laiwu Hongyang;
Pizhou Guangda; Qingdao Bedow; Qingdao H&T; Qingdao Potenza; Qingdao
Shiboliang; Rizhao Xingda; Shandong Chengshun; Shandong Dongsheng;
Shandong Garlic; Shanghai Ba-Shi; T&S; Golden Bridge; and Zhangqiu
Qingyuan.
---------------------------------------------------------------------------
Between February 16, 2007, and February 27, 2007, the Department
received separate rate certifications from 18 firms \8\ and between
March 23 and 26, 2007, the Department received separate rate
applications from 2 firms.\9\ Additionally, between February 27, 2007,
and March 2, 2007, the Department received responses from Zhangqiu
Qingyuan and Golden Bridge that each company did not have shipments of
subject merchandise to the United States during the POR.
---------------------------------------------------------------------------
\8\ Jinxiang Dong Yun; Huaiyang Hongda; Shanghai LJ; Qufu Dong
Bao; Weifang Shennong; Zhengzhou Harmoni; Sunny; Jinxiang Shanyang;
Qingdao Xintianfeng; Shandong Longtai; Jining Trans-High; Shenzhen
Fanhui; Taian Ziyang; Anqiu; Shanghai Ever Rich; Heze Ever-Best;
Qingdao Saturn; and Henan Weite.
\9\ Qingdao Tiantaixing and Jinan Farmlady.
---------------------------------------------------------------------------
As discussed below in ``Preliminary Partial Rescission of the
Administrative Review,'' on March 16, 2007, the Department received
letters from Petitioners and Zhengzhou Harmoni withdrawing their
requests for review of Zhengzhou Harmoni and thus, the Department did
not consider Zhengzhou Harmoni in the selection of respondents.
On April 11, 2007, after receiving comments from interested
parties, the Department selected Jinxiang Dong Yun, Huaiyang Hongda,
and Shanghai LJ as the three mandatory respondents since they were the
three largest exporters, by volume, of the remaining companies. See
Memorandum to Stephen J. Claeys, Deputy Assistant Secretary for Import
Administration, from James C. Doyle, Office Director, Office 9, re:
Antidumping Duty Administrative Review of Fresh Garlic from the
People's Republic of China: Selection of Respondents, (April 11, 2007)
(``Respondent Selection Memo''). There are 15 companies, based on
withdrawals and appropriately submitted Q&V questionnaire responses,
that were not selected as mandatory respondents, but which qualified
for separate rates: Sunny; Qufu Dong Bao; Weifang Shennong; Jinxiang
Shanyang; Qingdao Xintianfeng; Shandong Longtai; Jining Trans-High;
Shenzhen Fanhui; Taian Ziyang; Anqiu; Shanghai Ever Rich; Heze Ever-
Best; Qingdao Saturn; Henan Weite; and Jinan Farmlady (collectively
known as the ``separate rate companies'').
Questionnaires
There are 37\10\ companies that remain in the administrative
review, after the rescission of the reviews for Qingdao Tiantaixing,
Zhengzhou Harmoni, Golden Bridge, Shanghai McCormick, and Zhangqiu
Qingyuan, for these preliminary results, as discussed below in
``Preliminary Partial Rescission of the Administrative Reviews.''
---------------------------------------------------------------------------
\10\ Anqiu; APS Qingdao; Fujian Meitan; Henan Weite; Hongchang;
Huaiyang Hongda; Jinan Farmlady; Jining Haijiang; Jining Solar;
Jining Trans-High; Jinxian County Huaguang; Jinxiang Dong Yun;
Jinxiang Shanyang; Laiwu Hongyang; Pizhou Guangda; Qingdao Bedow;
Qingdao Camel; Qingdao H&T; Qingdao Potenza; Qingdao Saturn; Qingdao
Shiboliang; Qingdao Xintianfeng; Qufu Dongbao; Rizhao Xingda;
Shandong Chengshun; Shandong Dongsheng; Shandong Garlic; Shandong
Longtai; Shanghai Ba-Shi; Shanghai Ever Rich; Shanghai LJ; Shenzhen
Fanhui; Sunny; T&S; Taian Ziyang; Weifang Shennong; and Xiang Cheng.
---------------------------------------------------------------------------
On April 16, 2007, the Department issued antidumping duty
questionnaires to Jinxiang Dong Yun, Huaiyang Hongda, and Shanghai LJ.
Between May 14, 2007, and June 4, 2007, Huaiyang Hongda responded to
the Department's non-market economy (``NME'') questionnaire but did not
respond to the Department's subsequent supplemental questionnaires.
Between May 21, 2007, and November 15, 2007, Shanghai LJ responded to
the Department's NME questionnaire and subsequent supplemental
questionnaires. Between May 21, 2007, and November 13, 2007, Jinxiang
Dong Yun responded to the Department's NME questionnaire and subsequent
supplemental questionnaires. Between May 7, 2007, and May 23, 2007,
Qingdao Saturn submitted voluntary responses to the Department's NME
questionnaire.
Preliminary Partial Rescission of the Administrative Review
On March 22, 2007, Petitioners requested that the Department extend
the deadline for the withdrawal of review requests. On March 27, 2007,
the Department extended the deadline to withdraw a request for review
to July 11, 2007.
Qingdao Tiantaixing
On July 9, 2007, Qingdao Tiantaixing withdrew its request for an
administrative review. No other party requested a review of Qingdao
Tiantaixing. Therefore, because Qingdao Tiantaixing's request was
timely, in accordance with 19 CFR 351.213(d)(1), we have rescinded this
review with respect to Qingdao Tiantaixing.
Qingdao Xintianfeng
On February 6, 2007, Qingdao Xintianfeng withdrew its request for
an administrative review. Nonetheless, as previously noted, on February
22, 2007, Qingdao Xintianfeng submitted both a Q&V questionnaire
response and a separate rate certification. On July 25, 2007, which was
14 days after the withdrawal deadline, Petitioners submitted a letter
withdrawing their request for an administrative review of Qingdao
Xintianfeng. On July 31, 2007, Qingdao Xintianfeng submitted a letter
stating that due to its cooperative efforts it wished to remain an
active respondent in this administrative review. On August 22, 2007,
the Department issued a letter stating that it extended the time limit
for withdrawing a request for review by 20 days to July 31, 2007.
However, the Department also requested that Qingdao Xintianfeng submit
a letter clarifying whether its July 31, 2007, letter, was in fact a
retraction of its February 6, 2007, withdrawal of its review request.
On August 24, 2007, Qingdao Xintianfeng submitted a letter stating that
it was retracting its February 6, 2007, withdrawal request and wished
to remain an active respondent in this administrative review.
Therefore, because Qingdao Xintianfeng still has an active request for
a review, we have not rescinded this review with respect to Qingdao
Xintianfeng.
Zhengzhou Harmoni
On March 16, 2007, the Department received letters from Petitioners
and Zhengzhou Harmoni withdrawing their requests for review of
Zhengzhou Harmoni. Therefore, because Petitioners' and Zhenghzhou
Harmoni's requests were timely, in accordance with 19 CFR
351.213(d)(1), we have rescinded this review with respect to Zhengzhou
Harmoni.
No-Shipment Companies
Three companies, Golden Bridge, Shanghai McCormick, and Zhangqiu
Qingyuan, reported in their Q&V questionnaire responses that they made
no shipments of subject merchandise to the United States during the
POR. Additionally, the Department's examination of shipment data from
CBP for these 3 companies confirmed that there were no entries of
subject merchandise from them during the POR. Consequently, because
there is no evidence on the record to indicate that these three
companies had sales of subject merchandise under this Order during the
POR, pursuant to 19 CFR 351.213(d)(3), the Department is preliminarily
rescinding the review with respect to these three respondents: Golden
Bridge, Shanghai McCormick, and Zhangqiu Qingyuan.
[[Page 69655]]
Surrogate Country and Surrogate Values
On June 7, 2007, the Department sent interested parties a letter
requesting comments on the surrogate country and information pertaining
to valuing factors of production. On August 2, 2007, September 20,
2007, and October 31, 2007, Petitioners submitted surrogate value
comments from various Indian sources. No other interested party
submitted comments on the surrogate country and information pertaining
to valuing factors of production.
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.
Adverse Facts Available (``AFA'')
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 sections 782(c)(1) and (e) of the Act; (C)
significantly impedes a proceeding 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.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from {the Department{time} for
information, notifies {the Department{time} that such party is unable
to submit the information requested in the requested form and manner,
together with a full explanation and suggested alternative forms in
which such party is able to submit the information,'' the Department
may modify the requirements to avoid imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) the information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in providing the information
and meeting the requirements established by the Department; and (5) the
information can be used without undue difficulties.
Furthermore, section 776(b) of the Act states 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 from the administering authority or the Commission, the
administering authority or the Commission ..., in reaching the
applicable determination under this title, may use an inference that is
adverse to the interests of that party in selecting from among the
facts otherwise available.'' See also Statement of Administrative
Action (``SAA'') accompanying the Uruguay Round Agreements Act
(``URAA''), H.R. Rep. No. 103-316 at 870 (1994). 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
id. 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.
Huaiyang Hongda
As discussed in the ``General Background'' section above, Huaiyang
Hongda did not respond to the supplemental questionnaires issued by the
Department on August 10, 2007, and August 22, 2007. The deadline for
Huaiyang Hongda to file a response to the supplemental Section A
questionnaire and the supplemental Sections C and D questionnaire were
August 24, 2007, and September 4, 2007, respectively. Huaiyang Hongda
failed to respond to either of these supplemental questionnaires.
Additionally, the Department issued letters to Huaiyang Hongda on
August 24, 2007, and September 13, 2007, and confirmed delivery for
both letters. In both letters, the Department noted that responses to
its supplemental questionnaires were past due and requested that
Huaiyang Hongda notify the Department whether it intended to
participate further in this administrative review. Huaiyang Hongda did
not respond to either of these letters. Therefore, the Department finds
that Huaiyang Hongda's non-responsiveness necessitates the use of facts
available, pursuant to sections 776(a)(2)(A), (B) and (C) of the Act.
Based upon Huaiyang Hongda's failure to submit responses to the
Department's supplemental questionnaires and follow-up letters, the
Department finds that Huaiyang Hongda withheld requested information,
failed to provide the information in a timely manner and in the form
requested, and significantly impeded this proceeding, pursuant to
sections 776(a)(2)(A), (B) and (C) of the Act. Because Huaiyang Hongda
failed to provide a response to the Department's supplemental
questionnaires, critical data relevant to its separate rate
determination remains outstanding. Therefore, the Department was
prevented from conducting a complete separate rate analysis.
Additionally, Huaiyang Hongda's failure to provide a response to the
Department's supplemental questionnaires means that
[[Page 69656]]
critical information necessary to calculate an antidumping margin for
Huaiyang Hongda is absent from the record. Therefore, Huaiyang Hongda
withheld requested information, failed to provide the information in a
timely manner and in the form requested, and has significantly impeded
this proceeding. Thus, the Department has no choice but to rely on the
facts otherwise available in order to determine a margin for Huaiyang
Hongda, pursuant to section 776(a)(2)(A), (B) and (C) of the Act. See
Non-Malleable Cast Iron Pipe Fittings from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 71 FR
69546 (December 1, 2006) and accompanying Issues and Decision
Memorandum at Comment 1.
For these preliminary results, the Department finds that Huaiyang
Hongda has failed to cooperate to the best of its ability.
Specifically, the Department finds that Huaiyang Hongda did not respond
to the Department's request for clarification on certain issues,
including its separate rate information and reported sales and cost
information, as requested in the Department's supplemental
questionnaires. See Nippon Steel Corp. v. United States, 337 F. 3d
1373, 1384 (Fed. Cir. 2003) (``Nippon Steel''). Because Huaiyang Hongda
refused to answer the Department's supplemental questionnaires and
letters, the Department finds that Huaiyang Hongda has failed to
cooperate to the best of its ability, pursuant to section 776(b) of the
Act.
Because of Huaiyang Hongda's refusal to cooperate in the instant
proceeding, the Department was unable to calculate a company-specific
margin or even to determine Huaiyang Hongda's separate rate status.
Thus, the Department could not determine whether Huaiyang Hongda is
eligible for a separate rate. Accordingly, we are not granting Huaiyang
Hongda a separate rate and consider Hongda to be part of the PRC-wide
entity, subject to the PRC-wide rate.
19 Companies
As mentioned in the ``General Background'' section above, the
Department initiated this administrative review with respect to 52
companies, including among them 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
(collectively referred to as the ``19 Companies''). See Initiation
Notice. On January 23, 2007, the Department rescinded, in part, the
review on nine of the 52 companies, but noted that 43 companies,
including the 19 Companies, were still subject to review. See
Rescission Notice. Additionally, on January 23, 2007, and on February
15, 2007, the Department issued a Q&V questionnaire and a Second Q&V
questionnaire to the 19 companies. None of the 19 Companies responded
to the Department's Q&V questionnaire, nor did these 19 Companies
respond to the Department's Second Q&V questionnaire.
Because these 19 Companies were non-responsive to the Department's
two requests for Q&V information, the Department finds that they are
not entitled to a separate rate. Additionally, by not responding to the
Department's first or second Q&V questionnaire, each company failed to
provide critical information to be used for the Department's respondent
selection process. Therefore, pursuant to sections 776(a)(2)(A), (B)
and (C) of the Act, the Department finds that the application of facts
available is appropriate. In addition, pursuant to section 776(b) of
the Act, the Department may apply adverse facts available if it finds a
respondent has failed to cooperate by not acting to the best of its
ability to comply with a request for information from the Department.
By failing to respond to the Department's first and second Q&V
questionnaire, these 19 Companies have failed to act to the best of
their ability in this segment of the proceeding. Moreover, because
these 19 Companies did not participate in the respondent selection
exercise, the Department did not send them a questionnaire and was
unable to determine whether or not they qualified for a separate rate.
Therefore, these 19 Companies are not eligible to receive a separate
rate and will be part of the PRC-wide entity, subject to the PRC-wide
rate.
PRC-wide Entity
Because Huaiyang Hongda and the 19 Companies, which are part of the
PRC-wide entity, failed to cooperate to the best of their ability in
providing the requested information, as discussed above, we find it
appropriate, in accordance with sections 776(a)(2)(A), (B) and (C), as
well as section 776(b), of the Act, to assign total AFA to the PRC-wide
entity. See Certain Frozen Warmwater Shrimp from the Socialist Republic
of Vietnam: Preliminary Results of the First Administrative Review and
New Shipper Review, 72 FR 10689, 10692 (March 9, 2007) (decision to
apply total AFA to the NME-wide entity was unchanged for the final
results). By doing so, we ensure that the companies that are part of
the PRC-wide entity will not obtain a more favorable result by failing
to cooperate than had they cooperated fully in this review.
As discussed above, section 776(b) of the Act authorizes the
Department to use, as AFA, information derived from the petition, the
final determination in the LTFV investigation, any previous
administrative review, or any other information placed on the record.
Section 776(b)(4) of the Act permits the Department to use as AFA
information derived in the LTFV investigation or any prior review. In
selecting an AFA rate, the Department's practice has been to assign
non-cooperative Respondents the highest margin determined for any party
in the less-than-fair-value (``LTFV'') investigation or in any
administrative review. See Stainless Steel Plate in Coils from Taiwan:
Preliminary Results and Rescission in Part of Antidumping Duty
Administrative Review, 67 FR 5789 (February 7, 2002). As AFA, we are
assigning the PRC-wide entity, which includes Huaiyang Hongda and the
19 Companies, the highest rate from any segment of this proceeding,
which in this case is 376.67 percent assigned to the PRC-wide entity in
the LTFV investigation. See Notice of Final Determination of Sales at
Less Than Fair Value: Fresh Garlic from the People's Republic of China,
59 FR 49058, 49060 (September 26, 1994) (``Garlic LTFV Final
Determination'').
Section 776(c) of the Act requires the Department to corroborate,
to the extent practicable, secondary information used as facts
available. Secondary information is defined as ``information derived
from the petition that gave rise to the investigation or review, the
final determination concerning the subject merchandise, or any previous
review under section 751 concerning the subject merchandise.'' See SAA
accompanying the URAA, H.R. Doc. No. 103-316 at 870 (1994); see also 19
CFR 351.308(d).
The SAA further provides that the term ``corroborate'' means that
the Department will satisfy itself that the secondary information to be
used has probative value. See SAA at 870. Thus, to corroborate
secondary information, the Department will, to the extent practicable,
examine the reliability and relevance of the information used. The AFA
rate we are applying for the current review of fresh garlic was
corroborated
[[Page 69657]]
in the LTFV investigation. See Garlic LTFV Final Determination, 59 FR
at 49060. No information has been presented in the current review that
calls into question the reliability of the information used for this
AFA rate. Thus, the Department finds that the information is reliable.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. For example, in Flowers from Mexico, the Department
did not use the highest margin in the proceeding as best information
available (the predecessor to facts available) because that margin was
based on another company's aberrational business expenses and was
unusually high. See Fresh Cut Flowers From Mexico; Final Results of
Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22,
1996) (``Flowers from Mexico''). In other cases, the Department has not
used the highest rate in any segment of the proceeding as the AFA rate
because the highest rate was subsequently discredited, or the facts did
not support its use. See D&L Supply Co. v. United States, 113 F.3d
1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that
has been judicially invalidated). None of these unusual circumstances
are present with respect to the rate being used here. Moreover, the
rate selected, (i.e., 376.67 percent), is the rate currently applicable
to the PRC-wide entity. The Department assumes that if an uncooperative
respondent could have obtained a lower rate, it would have cooperated.
See Rhone Poulenc, Inc. V. United States, 899 F. 2d 1185, 1190-91 (Fed.
Cir. 1990); Ta Chen Stainless Steel Pipe, Inc. V. United States, 24 CIT
841, 848 (2000) (respondents should not benefit from failure to
cooperate). As there is no information on the record of this review
that demonstrates that this rate is not appropriate to use as AFA in
the current review, we determine that this rate has relevance.
As this rate is both reliable and relevant, we determine that it
has probative value, and is thus in accordance with section 776(c)'s
requirement that secondary information be corroborated to the extent
practicable (i.e., that it has probative value).
Voluntary Respondents
Section 782(a) of the Act provides that the Department, in any
investigation under subtitle A or B or a review under section 751(a) in
which the administering authority has, under section 777A(c)(2),
limited the number of exporters or producers examined, or determined a
single country-wide rate, the administering authority shall establish
an individual weighted- average dumping margin for any exporter or
producer not initially selected for individual examination under such
sections who submits to the administering authority the information
requested from exporters or producers selected for examination, if (1)
such information is so submitted by the date specified for exporters
and producers that were initially selected for examination; and (2) the
number of exporters or producers who have submitted such information is
not so large that individual examination of such exporters or producers
would be unduly burdensome and inhibit the timely completion of the
investigation.
Qingdao Saturn
As discussed in the ``General Background'' section above, between
May 7 and 23, 2007, Qingdao Saturn submitted voluntary responses to the
Department's NME questionnaire. In Qingdao Saturn's questionnaire
responses, Qingdao Saturn requested that the Department calculate an
individual weighted-average dumping margin for Qingdao Saturn, pursuant
to section 782(a) of the Act. Additionally, between October 2 and 15,
2007, Qingdao Saturn requested that the Department calculate an
individual weighted-average dumping margin for Qingdao Saturn, pursuant
to section 782(a) of the Act, arguing that the Department has the
resources and time to review Qingdao Saturn as a voluntary respondent
due to Huaiyang Hongda's lack of participation in this proceeding.
Moreover, on October 9, 2007, Petitioners submitted comments requesting
that the Department not review Qingdao Saturn as a voluntary
respondent, pursuant to section 782(a) of the Act, because Department
does not have the additional resources to consider Qingdao Saturn's
data so late in the proceeding. Furthermore, in their comments,
Petitioners stated that the Department has not yet determined how it
will treat Huaiyang Hongda in the preliminary results.
For these preliminary results, the Department has not examined any
of the submissions by Qingdao Saturn because of the Department's
resource constraints and the Department's decision to only review three
exporters. Although Qingdao Saturn is correct that Huaiyang Hongda has
not responded to the Department's supplemental questionnaires, as
discussed above in the ``Huaiyang Hongda'' section, the Department has
not received communication from Huaiyang Hongda that it is not going to
participate as an active respondent in this proceeding. In certain
circumstances, the Department has determined to review a voluntary
respondent because (1) another respondent notified the Department that
it was not going to participate; and (2) reviewing this voluntary
respondent would not be unduly burdensome, given time and resource
constraints. See Certain Frozen Warmwater Shrimp from the People's
Republic of China: Notice of Final Results and Rescission, in Part,
2004/2006 Antidumping Duty Administrative Review and New Shipper
Reviews, 72 FR 52049 (September 12, 2007) and accompany Issues and
Decision Memorandum at Comment 15; see also Certain Frozen Warmwater
Shrimp from the People's Republic of China: Preliminary Results and
Partial Rescission of the 2004/2006 Administrative Review and
Preliminary Intent to Rescind 2004/2006 New Shipper Review, 72 FR
10645, 10647, and 10655 (March 9, 2007). However, in this proceeding,
although Huaiyang Hongda has chosen to not respond to the Department's
supplemental questionnaires, Huaiyang Hongda is still under review.
Thus, the Department has devoted time and resources to the
consideration of Huaiyang Hongda for these preliminary results.
Additionally, the Department finds that, while Qingdao Saturn is
correct that the Department can choose to review a voluntary
respondent, section 782(a)(2) of the Act provides that the Department
may do so if reviewing such an exporter or producer is not ``unduly
burdensome and inhibit the timely completion of the investigation.''
However, the Department finds that, given the limited amount of time
remaining after Huaiyang Hongda stopped responding to the Department's
questionnaires, the Department did not have an adequate amount of time
to examine Qingdao Saturn's responses for these preliminary results.
The Department notes that the analysis of initial questionnaire
responses makes up only a limited portion of the work performed with
respect to any given respondent. The Department frequently issues
supplemental questionnaires, collects surrogate value data for the
factors of production (``FOPs'') used by each individual respondent,
identifies and resolves any issues with respect to such data, and
calculates a separate margin for each company. See Notice of Final
[[Page 69658]]
Determination of Sales at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain Color Television
Receivers from the People's Republic of China, 69 FR 20594 (April 16,
2004) and accompanying Issues and Decision Memorandum at Comment 2.
Each of these activities requires the expenditure of significant
resources. Given the limited amount of time available, the Department
lacks the resources to analyze Qingdao Saturn as a voluntary respondent
for these preliminary results, pursuant to section 782(a) of the Act.
Moreover, in addition to the caseload identified in the Respondent
Selection Memo as a factor to limit the number of respondents, the
office responsible for this proceeding, AD/CVD Operations Office 9, is
responsible for conducting five new antidumping investigations
initiated subsequent to the selection of respondents in this review.
Thus, it does not have significant additional resources to apply to
Qingdao Saturn.
NME Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority. See Brake Rotors From the People's Republic of
China: Final Results and Partial Rescission of the 2004/2005
Administrative Review and Rescission of 2004/2005 New Shipper Review,
71 FR 66304 (November 14, 2006). None of the parties to this proceeding
has contested such treatment. Accordingly, we calculated NV in
accordance with section 773(c) of the Act, which applies to NME
countries.
Separate Rate Determinations
A designation as an NME remains in effect until it is revoked by
the Department. See section 771(18)(C) of the Act. Accordingly, there
is a rebuttable presumption that all companies within the PRC are
subject to government control and, thus, should be assessed a single
antidumping duty rate. See Notice of Final Determination of Sales at
Less Than Fair Value, and Affirmative Critical Circumstances, In Part:
Certain Lined Paper Products From the People's Republic of China, 71 FR
53079 (September 8, 2006); Final Determination of Sales at Less Than
Fair Value and Final Partial Affirmative Determination of Critical
Circumstances: Diamond Sawblades and Parts Thereof from the People's
Republic of China, 71 FR 29303 (May 22, 2006).
It is the Department's standard policy to assign all exporters of
the merchandise subject to review in NME countries a single rate unless
an exporter can affirmatively demonstrate an absence of government
control, both in law (de jure) and in fact (de facto), with respect to
exports. To establish whether a company is sufficiently independent to
be entitled to a separate, company-specific rate, the Department
analyzes each exporting entity in an NME country under the test
established in Notice of Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by 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) (``Silicon Carbide'').
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589.
Throughout the course of this administrative review, only two of
the mandatory respondents, Jinxiang Dong Yun and Shanghai LJ, have
placed sufficient evidence on the record that demonstrate absence of de
jure control. Additionally, all of the separate rate companies have
placed on the record a number of documents to demonstrate absence of de
jure control including the ``Foreign Trade Law of the People's Republic
of China'' and the ``Administrative Regulations of the People's
Republic of China Governing the Registration of Legal Corporations.''
The Department has analyzed such PRC laws and has found that they
establish an absence of de jure control. See Preliminary Results of New
Shipper Review: Certain Preserved Mushrooms From the People's Republic
of China, 66 FR 30695, 30696 (June 7, 2001). We have no information in
this proceeding that would cause us to reconsider this determination.
Thus, we believe that the evidence on the record supports a preliminary
finding of an absence of de jure government control based on: (1) an
absence of restrictive stipulations associated with the exporter's
business license; (2) the legal authority on the record decentralizing
control over the respondent, as demonstrated by the PRC laws placed on
the record of this review; and (3) other formal measures by the
government decentralizing control of companies.\11\
---------------------------------------------------------------------------
\11\ This preliminary finding applies to (1) two of the selected
respondents of this administrative review: Jinxiang Dong Yun and
Shanghai LJ; and (2) the separate rate companies of this
administrative review: Sunny; Qufu Dong Bao; Weifang Shennong;
Jinxiang Shanyang; Qingdao Xintianfeng; Shandong Longtai; Jining
Trans-High; Shenzhen Fanhui; Taian Ziyang; Anqiu; Shanghai Ever
Rich; Heze Ever-Best; Qingdao Saturn; Henan Weite; and Jinan
Farmlady.
---------------------------------------------------------------------------
B. Absence of De Facto Control
As stated in previous cases, there is some evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Final Determination of Sales at Less Than Fair Value: Certain Preserved
Mushrooms from the People's Republic of China, 63 FR 72255 (December
31, 1998). Therefore, the Department has determined that an analysis of
de facto control is critical in determining whether respondents are, in
fact, subject to a degree of government control which would preclude
the Department from assigning separate rates. The Department typically
considers four factors in evaluating whether each respondent is subject
to de facto government control of its export functions: (1) whether the
exporter sets its own export prices independent of the government and
without the approval of a government authority; (2) whether the
respondent has the authority to negotiate and sign contracts, and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of its management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses. See Silicon Carbide, 59 FR at 22587; Sparklers, 56
FR at 20589.
The Department conducted a separate rates analysis for (1) two of
the mandatory respondents chosen for an administrative review: Jinxiang
Dong Yun and Shanghai LJ; and (2) the separate rate companies upon
which an administrative review was requested but which were not chosen
as mandatory respondents.
These companies have all asserted the following: (1) there is no
government participation in setting export prices; (2) sales managers
and authorized employees have the authority to create binding sales
contracts; (3) they do not
[[Page 69659]]
have to notify any government authorities of management selections; (4)
there are no restrictions on the use of export revenue; and (5) each is
responsible for financing its own losses. The questionnaire responses
of two of the mandatory respondents, Jinxiang Dong Yun and Shanghai LJ,
and the separate rate companies do not suggest that pricing is
coordinated among exporters. During our analysis of the information on
the record, we found no information indicating the existence of
government control of export activities. Consequently, we preliminarily
determine that Jinxiang Dong Yun, Shanghai LJ, and the separate rate
companies have met the criteria for the application of a separate rate.
However, as discussed previously, the Department is not granting
one of the mandatory respondents, Huaiyang Hongda, a separate rate
because Huaiyang Hongda failed to respond to the supplemental
questionnaire issued by the Department that contained several questions
regarding Huaiyang Hongda's eligibility for a separate rate. As a
result, we cannot confirm or verify the separate rate information that
Huaiyang Hongda submitted in its questionnaire responses.
Surrogate Country
When the Department investigates imports from an NME country,
section 773(c)(1) of the Act directs it to base NV, in most
circumstances, on the NME producer's FOPs, valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) at a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
The sources of the surrogate factor values are discussed under the
``Normal Value'' section below and in the Memorandum to the File
through James C. Doyle, Director, Office 9 and Alex Villanueva, Program
Manager, Office 9 from Julia Hancock, Senior Case Analyst, Office 9:
Surrogate Factor Valuations for the Preliminary Results of the 12th
Administrative Review (November 30, 2007) (``Surrogate Values Memo'').
As discussed in the ``NME Country Status'' section, the Department
considers the PRC to be an NME country. The Department determined that
India, Sri Lanka, Indonesia, Philippines, and Egypt are countries
comparable to the PRC in terms of economic development. See Memorandum
from Ron Lorentzen, Director, Office of Policy, to Alex Villanueva,
Program Manager, China/NME Group, Office 9: Antidumping Administrative
Review of Fresh Garlic from the People's Republic of China: Request for
a List of Surrogate Countries (June 1, 2007) (``Surrogate Country
List''). Moreover, it is the Department's practice to select an
appropriate surrogate country based on the availability and reliability
of data from the countries. See Department Policy Bulletin No. 04.1:
Non-Market Economy Surrogate Country Selection Process (March 1, 2004)
(``Policy Bulletin''). In this case, the Department has found that
India and Egypt are both significant producers of comparable
merchandise. The Department finds India to be a reliable source for
surrogate values because India is at a similar level of economic
development pursuant to 773(c)(4) of the Act, is a significant producer
of comparable merchandise, and has publically available and reliable
data. Furthermore, the Department notes that India has been the primary
surrogate country in past segments, and the only surrogate value data
based submitted on the record are from Indian sources. Given the above
facts, the Department has selected India as the primary surrogate
country for this review. See Memorandum to the File, through James C.
Doyle, Office Director, Office 9, Import Administration, and Alex
Villanueva, Program Manager, Office 9, from Julia Hancock, Senior Case
Analyst, Subject: 12th Administrative Review of Fresh Garlic from the
People's Republic of China: Selection of a Surrogate Country (November
30, 2007) (``Surrogate Country Memo'').
U.S. Price
In accordance with section 772(a) of the Act, we calculated the
export price (``EP'') for sales to the United States for Jinxiang Dong
Yun and Shanghai LJ because the first sale to an unaffiliated party was
made before the date of importation and the use of constructed EP
(``CEP'') was not otherwise warranted. We calculated EP based on the
price to unaffiliated purchasers in the United States. In accordance
with section 772(c) of the Act, as appropriate, we deducted from the
starting price to unaffiliated purchasers foreign inland freight,
brokerage and handling, and marine insurance. For Jinxiang Dong Yun and
Shanghai LJ, each of these services was either provided by an NME
vendor or paid for using an NME currency. Thus, we based the deduction
of these movement charges on surrogate values. See Surrogate Values
Memo for details regarding the surrogate values for movement expenses.
Additionally, Jinxiang Dong Yun reported that its international freight
was provided by a market economy carrier and paid in U.S. dollars, so
we used the actual cost per kilogram of the freight. Moreover, Jinxiang
Dong Yun reported certain U.S. Customs and other expenses that must be
deducted from the starting price to unaffiliated purchasers.
Accordingly, we will deduct these expenses from the starting price to
unaffiliated purchasers, as reported by Jinxiang Dong Yun. See
Memorandum to the File, through Alex Villanueva, Program Manager,
Office 9, from Michael Holton, Senior Analyst, Office 9; Company
Analysis Memorandum in the Antidumping Duty New Shipper Review of Fresh
Garlic from the People's Republic of China (``PRC''): Jinxiang Dong Yun
(November 30, 2007).
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine NV using an FOP methodology if the merchandise is exported
from an NME and the information does not permit the calculation of NV
using home-market prices, third-country prices, or constructed value
under section 773(a) of the Act. The Department calculates NV using
each of the FOPs that a respondent consumes in the production of a unit
of the subject merchandise because the presence of government controls
on various aspects of NMEs renders price comparisons and the
calculation of production costs invalid under the Department's normal
methodologies. However, there are circumstances in which the Department
will modify its standard FOP methodology, choosing to apply a surrogate
value to an intermediate input instead of the individual FOPs used to
produce that intermediate input. In some cases, a respondent may report
factors used to produce an intermediate input that accounts for an
insignificant share of total output. When the potential increase in
accuracy to the overall calculation that results from valuing each of
the FOPs is outweighed by the resources, time, and burden such an
analysis would place on all parties to the proceeding, the Department
has valued the intermediate input directly using a surrogate value. See
Notice of Final Determination of Sales at Less Than Fair Value:
Polyvinyl Alcohol from the People's Republic of China, 68 FR 47538
(August 11, 2003), and
[[Page 69660]]
accompanying Issues and Decision Memorandum at Comment 1 (``PVA'')
(citing to Final Results of First New Shipper Review and First
Antidumping Duty Administrative Review: Certain Preserved Mushrooms
from the People's Republic of China, 66 FR 31204 (June 11, 2001)).
In the 9th Review Final Results, the Department recognized that
there were serious discrepancies between the reported FOPs of the
different respondents and that the standard FOP methodology might not
be adequate to apply in future reviews.\12\ In the 10th administrative
review, the Department conducted a ``harvest verification'' of several
garlic producers in the PRC, interviewing farmers, studying farming
techniques, and reviewing standard PRC garlic production record-
keeping.\13\ In analyzing the questionnaire responses and ``harvest
verification'' reports in the 10th administrative review, the
Department determined that, to capture the complete costs of producing
fresh garlic, the methodology of valuing the intermediate product, the
fresh garlic bulb, would more accurately capture the complete costs of
producing subject merchandise.\14\ In the two previous administrative
reviews, the Department also stated that ``should a respondent be able
to provide sufficient factual evidence that it maintains the necessary
information in its internal books and records that would allow us to
establish the completeness and accuracy of the reported FOPs, we will
revisit this issue and consider whether to use its reported FOPs in the
calculation of NV.'' 10th Review Final Results, 71 FR at 26331; Fresh
Garlic from the People's Republic of China: Partial Rescission and
Preliminary Results of the Eleventh Administrative Review and New
Shipper Reviews, 71 FR 71510, 71520 (December 11, 2006).
---------------------------------------------------------------------------
\12\ See Fresh Garlic from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 70 FR 34082 (June
13, 2005) (``9th Review Final Results'').
\13\ See Memorandum to the File from Matthew Renkey, Senior Case
Analyst; 12th Administrative Review of Fresh Garlic from the
People's Republic of China: Intermediate Input Methodology Memoranda
from the 10th Administrative Review Final Results and 11th
Administrative Review Preliminary Results, (November 30, 2007), in
which the Department placed the Intermediate Input Methodology memos
from the tenth and eleventh Administrative Reviews on the record of
this proceeding, inclusive of the verification reports resulting
from the ``harvest verification.''
\14\ See Fresh Garlic from the People's Republic of China: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review and Final Results of New Shipper Reviews, 71 FR 26329 (May 4,
2006) (``10th Review Final Results''), and accompanying Issues and
Decision Memorandum at Comment 1.
---------------------------------------------------------------------------
In the course of this review, the Department has requested and
obtained a vast amount of detailed information from the respondents
with respect to each company's garlic production practices. However,
based on our analysis of the information on the record and for the
reasons outlined in the Memorandum to the File through James C. Doyle,
Director, Office 9 and Alex Villanueva, Program Manager, Office 9 from
Matthew Renkey, Senior Case Analyst, and Michael Holton, Senior Case
Analyst, Office 9: 12th Administrative Review of the Antidumping Duty
Order on Fresh Garlic From the People's Republic of China: Intermediate
Input Methodology (November 30, 2007) (``Intermediate Product Memo''),
we continue to believe that the respondents were unable to accurately
record and substantiate the complete costs of growing garlic during the
POR.
Thus, in the preliminary results for this administrative review, in
order to eliminate the distortions in our calculation of NV, for all of
the reasons identified above and described in the Intermediate Product
Memo, the Department applied an ``intermediate-product valuation
methodology'' to the 2 mandatory companies, Jinxiang Dong Yun and
Shanghai LJ, for which we are calculating an antidumping duty margin in
these preliminary results. Using this methodology, the Department
calculated NV by starting with a surrogate value for the garlic bulb
(i.e., the ``intermediate product''), adjusted for yield losses during
the processing stages, and adding the respondents' processing costs,
which were calculated using their reported usage rates for processing
fresh garlic. For a complete explanation of the Department's analysis,
and for a more detailed analysis of these issues with respect to each
respondent, see the Intermediate Product Memo.
2. Factor Valuations
In accordance with section 773(c) of the Act, the Department
calculated NV based on the intermediate product value and processing
FOPs reported by the respondents for the POR. To calculate NV, the
Department multiplied the reported per-unit factor quantities by
publicly available surrogate values in India with the exception of the
surrogate value for ocean freight, which we obtained from an
international freight company. In selecting the surrogate values, the
Department considered the quality, specificity, and contemporaneity of
the data. As appropriate, the Department adjusted input prices by
including freight costs to make them delivered prices. The Department
calculated these freight costs based on the shorter of the reported
distance from the domestic supplier to the factory or the distance from
the port in accordance with the decision in Sigma Corporation v. United
States, 117 F.3d 1401 (Fed. Cir. 1997) (``Sigma''). The Department made
currency conversions into U.S. dollars, in accordance with section
773A(a) of the Act, based on the exchange rates in effect on the dates
of the U.S. sale(s) as certified by the U.S. Federal Reserve Bank.
Garlic Bulb Value
In applying the intermediate input methodology, the Department
sought foremost to identify the best available surrogate value for the
fresh garlic bulb input to production, as opposed to identifying a
surrogate value for garlic seed. Therefore, the Department has valued
the fresh garlic bulb using prices for the size ranges of ``A'' and
``super-A'' grade garlic bulb in India, as published by Azadpur
Agriculture Produce Marketing Committee (``APMC'') in its ``Market
Information Bulletin'' (the ``Bulletin''). Azadpur APMC is the largest
fruit and vegetable market in Asia and has become a ``National
Distribution Centre'' for important Indian agricultural products such
as garlic. The Bulletin is published by the Azadpur APMC on each
trading day and contains, among other things, a list of all fruits and
vegetables sold on the previous trading day, the amount (by weight) of
each fruit or vegetable sold on that day, and a low, high and modal
price for each commodity sold. The Department notes that the ``A''
grade garlic typically ranges from 40 - 55 millimeters (``mm'') in
diameter, and the ``super-A'' grade garlic ranges 40 mm and above in
diameter. See Petitioners' Second Surrogate Value Submission,
(September 20, 2007) at Attachment 1; Petitioners' First Surrogate
Value Submission, (August 2, 2007) at Exhibits 4-5.
As the Department determined in past reviews, the price at which
garlic is sold is heavily dependent upon physical characteristics, such
as bulb size and number of cloves. See 9th Review Final Results, 70 FR
34082 at Comment 2; 10th Review Final Results, 71 FR 26329 at Comment
2. Accordingly, the Department finds that it is important to use
surrogate Indian garlic values reflecting sales of garlic bulbs of
similar diameter to that of Jinxiang Dong Yun's and Shanghai LJ's
merchandise during the POR. Therefore, for these preliminary results,
the Department finds that the ``A'' grade and ``super-A'' grade garlic
data from Azadpur APMC
[[Page 69661]]
are the best available and most appropriate information on the record
to value the garlic bulb input, pursuant to section 773(c) of the Act,
for the reasons stated below. The Department has found that the data
from Azadpur APMC satisfy the Department's surrogate value selection
criteria. See Fresh Garlic from the People's Republic of China: Final
Results and Partial Rescission of the Eleventh Administrative Review
and New Shipper Reviews, 72 FR 34438, 34440 (June 22, 2007), and
accompanying Issues and Decision Memorandum at Comment 2.
Because the Department is able to determine the size of ``A'' and
``super-A'' grade garlic and Jinxiang Dong Yun and Shanghai LJ provided
the size of the garlic bulb, the Department is calculating the
surrogate value for the garlic bulb using a simple average of the
Azadpur data for ``A'' and ``super-A'' grade garlic for Jinxiang Dong
Yun and Shanghai
