Fresh Garlic From the People's Republic of China: Preliminary Results of New Shipper Reviews, 20452-20459 [E9-10184]
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Federal Register / Vol. 74, No. 84 / Monday, May 4, 2009 / Notices
Decisions of the Wrangell District
Ranger: Wrangell Sentinel, published
weekly in Wrangell, Alaska.
Supplemental notices may be
published in any newspaper, but the
time frames for making comments or
filing appeals will be calculated based
upon the date that notices are published
in the newspapers of record listed in
this notice.
Dated: April 21, 2009.
Denny Bschor,
Regional Forester.
[FR Doc. E9–10045 Filed 5–1–09; 8:45 am]
BILLING CODE 3410–11–M
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–831]
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Fresh Garlic From the People’s
Republic of China: Preliminary Results
of New Shipper Reviews
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(Department) is conducting six new
shipper reviews (NSRs) of the
antidumping duty order on fresh garlic
from the People’s Republic of China
(PRC) covering the periods of review
(PORs) of November 1, 2007 through
April 30, 2008 and November 1, 2007
through June 9, 2008. As discussed
below, we preliminarily determine that
sales have been made in the United
States at prices below normal value
(NV) with respect to certain exporters
who participated fully and have
demonstrated their eligibility for a
separate rate in the NSRs. The NSRs for
Jinxiang Tianheng Trade Co., Ltd. and
Shandong Jinxiang Zhengyang Import &
Export Co., Ltd. continue to be
preliminarily rescinded. The dumping
margins are set forth in the ‘‘Preliminary
Results of the Reviews’’ section below.
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 importerspecific assessment rates are above de
minimis. We invite interested parties to
comment on these preliminary results.
See ‘‘Comments’’ section below.
DATES: Effective Date: May 4, 2009.
FOR FURTHER INFORMATION CONTACT: Toni
Page, Elfi Blum, or Jun Jack Zhao, AD/
CVD Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
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Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–1398, (202) 482–
0197, or (202) 482–1396, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 21, 22, 27, and 30, 2008,
pursuant to section 751(a)(2)(B)(i) of the
Tariff Act of 1930, as amended (the Act),
and 19 CFR 351.214(c), the Department
received NSR requests from Jinxiang
Hejia Co., Ltd (Hejia), Weifang
Chenglong Import & Export Co., Ltd.
(Chenglong), Jinxiang Tianheng Trade
Co., Ltd (Tianheng), Juye Homestead
Fruits and Vegetables Co. Ltd. (Juye
Homestead), Chengwu County Yuanxing
Industry & Commerce Co., Ltd.
(Chengwu), and Shandong Jinxiang
Zhengyang Import & Export Co., Ltd.
(Zhengyang). On June 30, 2008, the
Department initiated NSRs for all six
companies. See Fresh Garlic From the
People’s Republic of China: Initiation of
Antidumping Duty New Shipper
Reviews, 73 FR 38979 (published July 8,
2008).
On June 30, 2008 and January 2, 2009,
the Department placed copies of CBP
documents on the record of the NSRs
pertaining to each shipment of garlic
from the PRC exported to the United
States by these six companies during the
POR.1 On July 29, 2008, we issued a
memorandum extending the end of the
POR from April 30, 2008 to June 9,
2008, so as to capture entries that
entered the U.S. market after April 30,
2008. See Memorandum to the File from
Martha Douthit Re: Expansion of the
Period of Review in the New Shipper
Review of Fresh Garlic from the
People’s Republic of China (July 29,
2008), on file in the Central Records
Unit (CRU), room 1117 of the main
Commerce building.
Since the initiation of these reviews,
the Department issued original and
supplemental questionnaires to Hejia,
Chenglong, Tianheng, Juye Homestead,
Chengwu, and Zhengyang. All six
companies responded to the
Department’s questionnaires in a timely
manner. On August 20, 2008, the
Department sent interested parties a
letter requesting comments on the
surrogate country selection and
information pertaining to valuing factors
of production. See Letter to Interested
Parties from the Department Re: New
Shipper Reviews of Fresh Garlic from
1 See the Memorandum from Jun Jack Zhao Re:
New Shipper Review of Fresh Garlic from the
People’s Republic of China: Customs Data (June 30,
2008) and the Memorandum from Toni Page Re:
New Shipper Review of Fresh Garlic from the
People’s Republic of China: Entry Documents
(January 2, 2009).
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the People’s Republic of China (‘‘PRC’’)
(August 20, 2008). On November 12,
2008, Zhengyang submitted comments
on the surrogate country selection and
information pertaining to valuing factors
of production. See Letter to the
Department from Zhengyang Re:
Surrogate Value Submission: Fresh
Garlic from the People’s Republic of
China: New Shipper Review for 11/01/
07–04/30/08 (November 12, 2008)
(Zhengyang’s Surrogate Value Data).
The Fresh Garlic Producers Association
(FGPA) and its individual members
(Christopher Ranch LLC, the Garlic
Company, Valley Garlic, and Vessey and
Company, Inc.) (collectively,
petitioners) also submitted comments
regarding surrogate values for these
NSRs. See Letter to the Department from
Petitioners Re: 14th New Shipper
Review of the Antidumping Duty Order
on Fresh Garlic from the People’s
Republic of China (November 26, 2008)
(Petitioners’ Surrogate Value Data). In
addition, Zhengyang submitted
comments rebutting Petitioners’
Surrogate Value Data submission. See
Letter to the Department from
Zhengyang Re: Rebuttal Documents on
Surrogate Value Submission: Fresh
Garlic from the People’s Republic of
China: New Shipper Review for 11/01/
07–04/30/08 (December 8, 2008)
(Zhengyang’s Rebuttal Surrogate Value
Data). All submitted comments are on
file in the CRU. No other party has
submitted surrogate values or surrogate
country comments on the record of this
proceeding.
On December 3, 2008, the Department
extended the preliminary results of
these NSRs to no later than April 27,
2009. See Fresh Garlic from the People’s
Republic of China: Extension of Time
Limits for the Preliminary Results of the
New Shipper Reviews, 73 FR 73638
(December 3, 2008). On March 18, 2009,
the Department notified all interested
parties of its intent to preliminarily
rescind the NSRs for Tianheng and
Zhengyang. See Memorandum from
Barbara E. Tillman Re: Bona Fide Nature
of the Sale in the Antidumping Duty
New Shipper Review of Fresh Garlic
from the People’s Republic of China
(‘‘PRC’’): Jinxiang Tianheng Trade Co.
and Intent to Preliminarily Rescind
Jinxiang Tianheng Trade Co.’s New
Shipper Review (March 18, 2009) and
Memorandum from Barbara E. Tillman
Re: Bona Fide Nature of the Sale in the
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Shandong Jinxiang Zhengyang Import &
Export Co., Ltd., and Intent to
Preliminarily Rescind Shandong
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be accompanied by declarations to CBP
to that effect.
and output decision-making process at
the individual firm level.2
Non-Market Economy Country Status
A. Absence of De Jure Control
In every case conducted by the
Department involving the PRC, the PRC
has been treated as a non-market
economy (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
Notice of 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.
Scope of the Order
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Jinxiang Zhengyang Import & Export
Co., Ltd.’s New Shipper Review (March
18, 2009). On April 1, 2009, we received
comments from Tianheng and
Zhengyang. See Letter to the
Department from Tianheng Re:
Response to Bona Fides Memorandum
of March 18, 2009; Jinxiang Tianheng
Trade Co., Ltd.; Fresh Garlic from the
People’s Republic of China: New
Shipper Review for 11/01/07–04/30/08;
and Letter to the Department from
Zhengyang Re: Response to Bona Fides
Memorandum of March 18, 2009;
Shandong Jinxiang Zhengyang Import
and Export Co., Ltd.; Fresh Garlic from
the People’s Republic of China: New
Shipper Review for 11/01/07–04/30/08.
The Department is reviewing the
comments and timely information
submitted by all interested parties on
this issue. The Department intends to
address these comments and factual
information in a subsequent
memorandum that will be issued prior
to the final results of these NSRs.
A designation of a country 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.
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 the Final Determination of Sales at
Less than Fair Value: Sparklers from the
People’s Republic of China (Sparklers),
56 FR 20588 (May 6, 1991), as amplified
by the Notice of Final Determination of
Sales at Less Than Fair Value: Silicon
Carbide from the People’s Republic of
China, 59 FR 22585 (May 2, 1994)
(Silicon Carbide).
The Department’s separate-rate status
test to determine whether the exporter
is independent from government control
does not consider, in general,
macroeconomic/border-type controls
(e.g., export licenses, quotas, and
minimum export prices), particularly if
these controls are imposed to prevent
dumping. The test focuses, rather, on
controls over the investment, pricing,
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; and (2) any legislative
enactments decentralizing control of
companies.
Throughout the course of this
proceeding, Hejia, Juye Homestead,
Chenglong, and Chengwu have each
placed a number of documents on the
record to demonstrate absence of de jure
control including business licenses,
financial statements, and narrative
information regarding government laws
and regulations on corporate ownership,
and the companies’ operations and
selection of management.3 In addition,
Hejia, Juye Homestead, Chenglong, and
Chengwu have each placed on the
record the ‘‘Foreign Trade Law of the
People’s Republic of China’’, the
‘‘Company 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 found
that they establish an absence of de jure
control. See, e.g., Honey from the
People’s Republic of China: Preliminary
Results and Partial Rescission of
Antidumping Duty Administrative
Review, 72 FR 102, 105 (January 3,
2006), unchanged in Honey from the
People’s Republic of China: Final
Results and Final Rescission, In Part, of
Antidumping Duty Administrative
Review, 72 FR 37715, 37716 (July 11,
2007). 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 of
Hejia, Juye Homestead, Chenglong, and
Chengwu based on: (1) an absence of
restrictive stipulations associated with
the exporter’s business license; and (2)
the legal authority on the record
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
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Separate Rates
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2 See Certain Cut-to-Length Carbon Steel Plate
from Ukraine: Final Determination of Sales at Less
than Fair Value, 62 FR 61754, 61758 (November 19,
1997), and Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, from the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Review, 62 FR
61276, 61279 (November 17, 1997).
3 On March 18, 2009, the Department
preliminarily rescinded the NSRs of Tianheng and
Zhengyang. As such, we have not conducted a
separate rate analysis of either company.
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decentralizing control over the
respondent.
B. Absence of De Facto Control
As stated in previous cases, there is
evidence that certain enactments of the
PRC central government have not been
implemented uniformly among different
sectors and/or jurisdictions in the PRC.
See Silicon Carbide, 59 FR at 22586–87.
Therefore, the Department has
determined that an analysis of de facto
control is critical in determining
whether the respondents are, in fact,
subject to a degree of government
control which would preclude the
Department from assigning separate
rates.
The absence of de facto governmental
control over exports is based on whether
a company: (1) Sets its own export
prices independent of the government
and other exporters; (2) retains the
proceeds from its export sales and
makes independent decisions regarding
the disposition of profits or financing of
losses; (3) has the authority to negotiate
and sign contracts and other
agreements; and (4) has autonomy from
the government regarding the selection
of management. See Silicon Carbide, 59
FR at 22587 and Sparklers, 56 FR at
20589; see also Notice of Final
Determination of Sales at Less Than
Fair Value: Furfuryl Alcohol From the
People’s Republic of China, 60 FR
22544, 22545 (May 8, 1995).
The Department conducted a
separate-rates analysis for each new
shipper. In Hejia’s, Juye Homestead’s,
Chenglong’s, and Chengwu’s
questionnaire responses, each new
shipper submitted evidence indicating
an absence of de facto governmental
control over its export activities.
Specifically, this evidence indicates
that: (1) Each new shipper sets its own
export prices independent of the
government and without the approval of
a government authority; (2) each new
shipper retains the proceeds from its
sales and makes independent decisions
regarding the disposition of profits or
financing of losses; (3) each new shipper
has a general manager, branch manager
or division manager with the authority
to negotiate and bind the company in an
agreement; (4) the general manager is
selected by the board of directors or
company employees, and the general
manager appoints the deputy managers
and the manager of each department;
and (5) there is no restriction on each
new shipper’s use of export revenues.
The questionnaire responses of the new
shippers do not suggest that pricing is
coordinated among exporters. During
our analysis of the information on the
record, we found no information
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indicating the existence of government
control. Therefore, the Department
preliminarily finds that Hejia, Juye
Homestead, Chenglong, and Chengwu
have each established, prima facie, that
they qualify for separate rates status
under the criteria established by Silicon
Carbide and Sparklers.
Bona Fide Analysis
Consistent with Department practice,
we examined the bona fide nature of the
new shipper sales at issue. In evaluating
whether or not a sale in a new shipper
review is commercially reasonable, and
therefore bona fide, the Department
considers, inter alia, such factors as: (1)
The timing of the sale; (2) the price and
quantity; (3) the expenses arising from
the transaction; (4) whether the goods
were resold at a profit; and (5) whether
the transaction was made on an arm’slength basis. See Tianjin Tiancheng
Pharmaceutical Co., Ltd. v.United
States, 366 F. Supp. 2d 1246, 1250 (CIT
2005) (TTPC). Accordingly, the
Department considers a number of
factors in its bona fides analysis, ‘‘all of
which may speak to the commercial
realities surrounding an alleged sale of
subject merchandise.’’ See Hebei New
Donghua Amino Acid Co., Ltd. v. United
States, 374 F. Supp. 2d 1333, 1342 (CIT
2005) (citing Fresh Garlic From the
People’s Republic of China: Final
Results of Antidumping Administrative
Review and Rescission of New Shipper
Review, 67 FR 11283 (March 13, 2002)
and accompanying Issues and Decision
Memorandum: New Shipper Review of
Clipper Manufacturing Ltd.). Also, in
TTPC, the court affirmed the
Department’s practice of considering
that ‘‘any factor which indicates that the
sale under consideration is not likely to
be typical of those which the producer
will make in the future is relevant,’’
(TTPC, 366 F. Supp. 2d at 1250), and
found that ‘‘the weight given to each
factor investigated will depend on the
circumstances surrounding the sale.’’
TTPC, 366 F. Supp. 2d at 1263. Finally,
in New Donghua, the CIT affirmed the
Department’s practice of evaluating the
circumstances surrounding a NSR sale
so that a respondent does not unfairly
benefit from an atypical sale, and obtain
a lower dumping margin than the
producer’s usual commercial practice
would dictate.
Tianheng: On March 18, 2009, we
preliminarily concluded that the sale
made by Tianheng during the POR was
not a bona fide commercial transaction
and thus notified parties of our intent to
rescind the NSR for this company. The
Department came to this conclusion
based on the totality of circumstances,
namely: (a) the atypical nature of
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Tianheng’s POR sale; and (b) other
evidence of a non-bona fide transaction.
Since much of our analysis regarding
the evidence of the bona fides of the
transaction involves business
proprietary information, a full
discussion of the bases for our decision
to rescind was set forth in the
Memorandum from Barbara E. Tillman
Re: Bona Fide Nature of the Sale in the
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Jinxiang Tianheng Trade Co. and Intent
to Preliminarily Rescind Jinxiang
Tianheng Trade Co.’s New Shipper
Review (March 18, 2009) (Tianheng
Bona Fides Memorandum).
On April 1, 2009, Tianheng submitted
comments and factual information
addressing the Department’s bona fides
analysis. The Department intends to
address these comments and factual
information in a subsequent
memorandum that will be issued prior
to the final results.
Zhengyang: On March 18, 2009, we
preliminarily concluded that the sale
made by Zhengyang during the POR was
not a bona fide commercial transaction
and thus preliminarily rescinded the
NSR for this company. The Department
came to this conclusion based on the
totality of circumstances, namely: (a) the
atypical nature of Zhengyang’s POR
sale; and (b) other evidence of a nonbona fide transaction. Since much of
our analysis regarding the evidence of
the bona fides of the transaction
involves business proprietary
information, a full discussion of the
bases for our decision to rescind is set
forth in the Memorandum from Barbara
E. Tillman Re: Bona Fide Nature of the
Sale in the Antidumping Duty New
Shipper Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Shandong Jinxiang Zhengyang Import &
Export Co., Ltd., and Intent to
Preliminarily Rescind Shandong
Jinxiang Zhengyang Import & Export
Co., Ltd.’s New Shipper Review (March
18, 2009) (Zhengyang Bona Fides
Memorandum). On April 1, 2009,
Zhengyang submitted comments and
factual information addressing the
Department’s bona fides analysis. The
Department intends to address these
comments and factual information in a
subsequent memorandum issued prior
to the final results.
Hejia: We preliminarily find that the
sale made by Hejia during the POR was
a bona fide commercial transaction
based on the totality of circumstances,
namely: (1) Neither Hejia nor its
customer incurred any extraordinary
expenses arising from the transaction;
(2) the sale was made between
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unaffiliated parties at arm’s length; and
(3) the timing of the sale does not
indicate that this sale was not bona fide.
However, we note that the Department
will continue to examine all aspects of
Hejia’s POR sale including whether it is
atypical, and, as such, not indicative of
what its future sales may be. Since
much of our analysis regarding the
evidence of the bona fides of the
transaction involves business
proprietary information, a full
discussion of the bases for our
preliminary decision is set forth in the
Memorandum from Barbara E. Tillman
Re: Bona Fide Nature of the Sale in the
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Shandong Jinxiang Hejia Co., Ltd. New
Shipper Review (April 27, 2009) (Hejia
Bona Fides Memorandum).
Accordingly, we will continue to
examine the bona fides of Hejia’s sale
after the preliminary results.
Based on our investigation into the
bona fide nature of Hejia’s reviewed
sale, its questionnaire responses, as well
as its eligibility for a separate rate (see
the ‘‘Separate Rates’’ section above) and
the Department’s preliminary
determination that Hejia was not
affiliated with any exporter or producer
that had previously shipped subject
merchandise to the United States, we
preliminarily determine that Hejia has
met the requirements to qualify as a new
shipper during the POR. Therefore, for
purposes of these preliminary results,
we are treating Hejia’s new shipper sale
of subject merchandise to the United
States as an appropriate transaction for
its review.
Juye Homestead: We preliminarily
find that the sale made by Juye
Homestead was a bona fide commercial
transaction. Specifically, we find that:
(1) The price of the sale was within the
range of the prices of other entries of
subject merchandise from the PRC into
the United States during the POR; (2)
neither Juye Homestead nor its customer
incurred any extraordinary expenses
arising from the transaction; (3) the sale
was made between unaffiliated parties
at arm’s length; and (4) the timing of the
sale does not indicate that this sale was
not bona fide. However, we note that
there is certain evidence on the record
that suggests that the bona fides of Juye
Homestead’s sale is not definitive. Since
much of our analysis regarding the
evidence of the bona fides of the
transaction involves business
proprietary information, a full
discussion of the bases for our
preliminary decision is set forth in the
Memorandum from Jun Jack Zhao Re:
Bona Fide Nature of the Sale in the
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Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Juye Homestead Fruits and Vegetables
Co., Ltd. (April 27, 2009). Accordingly,
we will continue to examine the bona
fides of Juye Homestead’s sale after the
preliminary results.
Based on our investigation into the
bona fide nature of Juye Homestead’s
reviewed sale, its questionnaire
responses, as well as its eligibility for a
separate rate (see the ‘‘Separate Rates’’
section above) and the Department’s
determination that Juye Homestead was
not affiliated with any exporter or
producer that had previously shipped
subject merchandise to the United
States, we preliminarily determine that
Juye Homestead has met the
requirements to qualify as a new
shipper during the POR. Therefore, for
purposes of these preliminary results,
we are treating Juye Homestead’s new
shipper sale of subject merchandise to
the United States as an appropriate
transaction for its review.
Chenglong: We preliminarily find that
the new shipper sale made by
Chenglong was a bona fide commercial
transaction. Specifically, we found that:
(1) The price of the sale was within the
range of the prices of other entries of
subject merchandise from the PRC into
the United States during the POR; (2)
neither Chenglong nor its customer
incurred any extraordinary expenses
arising from the transaction; (3) the sale
was made between unaffiliated parties
at arm’s length; and (4) the timing of the
sale does not indicate that this sale was
not bona fide. However, we note that
certain evidence on the record suggests
that the bona fides of Chenglong’s sale
is not definitive. Since much of our
analysis regarding the evidence of the
bona fides of the transaction involves
business proprietary information, a full
discussion of the bases for our
preliminary decision is set forth in the
Memorandum from Jun Jack Zhao Re:
Bona Fide Nature of the Sale in the
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Weifang Chenglong Import & Export Co.,
Ltd. (April 27, 2009). Accordingly, we
will continue to examine the bona fides
of Chenglong’s sale after the preliminary
results.
Based on our investigation into the
bona fide nature of Chenglong’s
reviewed sale, its questionnaire
responses, as well as its eligibility for a
separate rate (see the ‘‘Separate Rates’’
section above) and the Department’s
determination that Chenglong was not
affiliated with any exporter or producer
that had previously shipped subject
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merchandise to the United States, we
preliminarily determine that Chenglong
has met the requirements to qualify as
a new shipper during the POR.
Therefore, for purposes of these
preliminary results, we are treating
Chenglong’s new shipper sale of subject
merchandise to the United States as an
appropriate transaction for its review.
Chengwu: We preliminarily find that
the new shipper sale made by Chengwu
was a bona fide commercial transaction.
Specifically, we found that: (1) The
price of the sale was within the range of
the prices of other entries of subject
merchandise from the PRC into the
United States during the POR; (2)
neither Chengwu nor its customer
incurred any extraordinary expenses
arising from the transaction; (3) the sale
was made between unaffiliated parties
at arm’s length; and (4) the timing of the
sale does not indicate that this sale was
not bona fide. However, we note that
there is certain evidence on the record
that suggests the bona fides of Chenwu’s
sale is not definitive. Since much of our
analysis regarding the evidence of the
bona fides of the transaction involves
business proprietary information, a full
discussion of the bases for our
preliminary decision is set forth in the
Memorandum from Toni Page Re: Bona
Fide Nature of the Sale in the
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’):
Chengwu County Yuanxiang Industry &
Commerce Co., Ltd. (April 27, 2009).
Accordingly, we will continue to
examine the bona fides of Chengwu’s
sale after the preliminary results.
Based on our investigation into the
bona fide nature of Chengwu’s reviewed
sale, its questionnaire responses, as well
as its eligibility for a separate rate (see
the ‘‘Separate Rates’’ section above) and
the Department’s determination that
Chengwu was not affiliated with any
exporter or producer that had
previously shipped subject merchandise
to the United States, we preliminarily
determine that Chengwu has met the
requirements to qualify as a new
shipper during the POR. Therefore, for
purposes of these preliminary results,
we are treating Chengwu’s new shipper
sale of subject merchandise to the
United States as an appropriate
transaction for its review.
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 factors of production (FOPs),
valued in a surrogate market economy
country or countries considered to be
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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.
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).
As discussed in the ‘‘Non-Market
Economy Country Status’’ section
above, the Department considers the
PRC to be an NME country. Pursuant to
section 773(c)(4) of the Act, the
Department determined that India,
Colombia, Indonesia, the Philippines,
and Thailand are countries comparable
to the PRC in terms of economic
development. See the Memorandum to
All Interested Parties Re: New Shipper
Reviews of Fresh Garlic from the
People’s Republic of China (‘‘PRC’’)
(August 20, 2008) at Attachment 1. Also
in accordance with section 773(c)(4) of
the Act, the Department has found that
India is a significant producer of
comparable merchandise. Moreover, the
Department finds India to be a reliable
source for surrogate values because
India is at a similar level of economic
development pursuant to section
773(c)(4) of the Act, is a significant
producer of comparable merchandise,
and has publicly available and reliable
data. Furthermore, the Department notes
that India has been the primary
surrogate country in past segments of
this proceeding, and the only surrogate
value data 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 Letter to All Interested
Parties Re: New Shipper Reviews of
Fresh Garlic from the People’s Republic
of China (‘‘PRC’’) at Attachment 1
(August 20, 2008). The sources of the
surrogate factor values are discussed
under the ‘‘Normal Value’’ section
below and in the Memorandum from
Toni Page Re: Preliminary Results of the
2007–2008 New Shipper Reviews of
Fresh Garlic from the People’s Republic
of China: Surrogate Values (April 27,
2009) (Surrogate Values Memorandum).
U.S. Price
In accordance with section 772(a) of
the Act, we calculated the export price
for sales to the United States for Hejia,
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Juye Homestead, Chenglong, and
Chengwu because each company made
its sale to an unaffiliated party before
the date of importation and the use of
constructed export prices was not
otherwise warranted. We calculated
each company’s export price based on
its price to unaffiliated purchasers in
the United States. In accordance with
section 772(c) of the Act, where
appropriate, we deducted from the
starting price to unaffiliated purchasers
the expenses for foreign inland freight,
international freight, brokerage and
handling, marine insurance,
warehousing, and U.S. customs duties.
For the expenses that were either
provided by an NME vendor or paid for
using an NME currency, we used
surrogate values as appropriate. See the
‘‘Factor Valuations’’ section below for
details regarding the surrogate values for
movement expenses.
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 country 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. See,
e.g., 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 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)).
For the final results of certain prior
administrative reviews (ARs) and NSRs
(i.e., Fresh Garlic from the People’s
Republic of China: Partial Rescission
and Preliminary Results of the Eleventh
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Administrative Review and New
Shipper Reviews, 71 FR 71510
(December 11, 2006) (unchanged in the
final results) (11th AR and NSRs); Fresh
Garlic from the People’s Republic of
China: Final Results and Partial
Rescission of the 12th Administrative
Review, 73 FR 34251 (June 17, 2008)
(12th AR), and Fresh Garlic from the
People’s Republic of China: Final
Results and Rescission, In Part, of
Twelfth New Shipper Reviews, 73 FR
56550 (September 29, 2008) (12th NSR),
the Department found that garlic
industry producers in the PRC do not
generally track actual labor hours
incurred for growing, tending, and
harvesting activities and, thus, do not
maintain appropriate records which
would allow most, if not all,
respondents to quantify, report, and
substantiate this information. See the
Memorandum from Toni Page Re: New
Shipper Reviews of Fresh Garlic from
the People’s Republic of China—
Intermediate Methodology Source
Documents (April 27, 2009)
(Intermediate Input Methodology Source
Documents). In the 11th AR and NSRs,
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.’’ See
11th AR and NSRs at 71520. In the
course of these reviews, one company,
Tianheng, reported its growing FOPs.4
(Hejia, Juye Homestead, Chenglong,
Zhengyang, and Chengwu did not report
FOPs related to growing whole garlic
bulbs.) As such, for the reasons outlined
in Memorandum from Toni Page Re:
2007–2008 New Shipper Review of
Fresh Garlic from the People’s Republic
of China: Intermediate Input
Methodology (April 27, 2009)
(Intermediate Input Methodology
Memorandum), the Department is
applying an ‘‘intermediate-product
valuation methodology’’ to the NSR
respondents 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’’), adjusting for yield losses
during the processing stages, and adding
the respondents’ processing costs,
4 On March 18, 2009, the Department
preliminarily rescinded the NSR of Tianheng. As
such, we have not conducted an analysis of the
growing FOPs that Tianheng reported.
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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. 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). For more information regarding
the Department’s valuation for the
various FOPs, see Surrogate Values
Memorandum.
the U.S. during the POR. Respondents,
with the exception of Hejia, reported
garlic bulb input sizes ranging between
45 mm and 65 mm. Consistent with the
final results of the 12th administrative
review, the Department continues to
find that garlic bulb sizes that range
from 55 mm and above are Grade SuperA and garlic bulb sizes that range
between 40 mm and 55 mm are Grade
A and Grade Super-A. See Surrogate
Values Memorandum. Therefore, for
these preliminary results, for
respondents other than Hejia, we have
used Grade Super-A values when
respondents have reported bulb input
sizes that range from 55 mm and above,
and an average of Grade A and SuperA values when they have reported bulb
input sizes that are in ranges from 40
mm to 55 mm. To calculate the
surrogate value for garlic bulbs, we first
averaged all data points from November
1, 2007 to April 30, 2008 for: (1) Grade
Super-A; and (2) Grade A. We then
subtracted a 7 percent fee (6 percent
commission fee plus 1 percent market
fee) charged on transactions at the
Azadpur APMC from the Grade A and
Grade Super-A averages. See Surrogate
Values Memorandum.
Garlic Bulb Valuation
The Department’s practice when
selecting the ‘‘best available
information’’ for valuing FOPs, in
accordance with section 773(c)(1) of the
Act, is to select, to the extent
practicable, surrogate values which are
publicly available, product-specific,
representative of a broad market
average, tax-exclusive and
contemporaneous with the POR. See
Final Determination of Sales at Less
Than Fair Value: Certain Artist Canvas
from the People’s Republic of China, 71
FR 16116 (March 30, 2006) and
accompanying Issues and Decision
Memorandum at Comment 2.
The Department has applied an
intermediate input methodology for
respondents. Therefore, we sought to
identify the best available surrogate
value for the garlic bulb input to
production, as opposed to finding
surrogate values for the steps involved
in planting, growing, and harvesting raw
garlic (such as seeds, water, fertilizer,
etc.). See Petitioners’ Surrogate Value
Data at 2; see also Surrogate Values
Memorandum. For the preliminary
results of these reviews, we find that
data from the Azadpur APMC’s ‘‘Market
Information Bulletin’’ is the most
appropriate information available to
value the respondents’ garlic bulb input.
In their FOP databases, respondents
reported garlic bulb input size ranges for
each type of garlic produced and sold to
Garlic Bulb Valuation for Hejia
Hejia has submitted information on
the record indicating that the garlic it
sold, and the garlic bulb input thereof,
possessed physical characteristics
which significantly distinguish it from
the Grade A and Super Grade A garlic
on which we rely to value garlic bulb
inputs. As such, neither Grade A nor
Super Grade A garlic appears to be an
appropriate basis from which to derive
a surrogate value for the bulb input used
by Hejia. Moreover, there is no other
appropriate bulb surrogate value
information on the record of this review.
Thus, for these preliminary results, we
have determined to use an FOB sales
offer from Sundaram Overseas
Operations (SOO), an Indian trading
company, as the basis for deriving NV.
SOO’s sales offer appears to be an
Indian export price for a whole garlic
product that is physically similar to the
product sold by Hejia. However, we
have incomplete information regarding
the FOB sales offer made by SOO. As
such, for the purposes of these
preliminary results, we are making the
following assumptions: (1) SOO acted
only as a trading company and did not
further process the garlic at issue; and
(2) the processing FOPs for the garlic at
issue are similar to the processing FOPs
of other whole garlic subject to these
NSRs. Therefore, we adjusted SOO’s
price by removing the profit, SG&A, and
overhead expenses associated with the
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which were calculated using their
reported usage rates for processing fresh
garlic. See Intermediate Input
Methodology Memorandum.
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activities of an Indian trading company.
As such, the resulting NV will only
reflect the costs and profit associated
with processing whole garlic. See
Surrogate Values Memorandum.
The Department is requesting
comments and factual information
regarding the appropriate surrogate
value to use in calculating NV for Hejia
for purposes of the final results of
review. Due to the unusual nature of
this valuation and calculation,
regardless of whether there is new
factual information on the record after
issuance of these preliminary results,
the Department will continue to
consider the appropriateness of this
calculation for purposes of the final
results of review. Since much of our
analysis regarding Hejia’s garlic and the
garlic bulb input thereof has been
treated as business proprietary
information, a full discussion of the
bases for calculating an appropriate
surrogate value for Hejia’s garlic bulb
input is set forth in the Surrogate Values
Memorandum.
Financial Ratios
Petitioners and Zhengyang submitted
comments and factual information
regarding surrogate financial ratios. See
Petitioners’ Surrogate Value Data,
Zhengyang’s Surrogate Value Data, and
Zhengyang’s Rebuttal Surrogate Value
Data submissions. After analyzing these
comments and factual information, the
Department has determined that it is
appropriate to include the financial
statements of additional Indian
companies in the calculation of the
financial ratios used to value overhead
expenses, selling expenses, general
expenses, and profits for the
respondents. Specifically, the
Department will calculate financial
ratios using a simple average of
financial data from three Indian
processors of tea and/or other
agricultural products. Using an average
of these three companies’ data will
allow us to calculate financial ratios that
better reflect the broader experience of
the surrogate industry. See Surrogate
Values Memorandum.
Currency Conversion
We 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. sales, as certified by the Federal
Reserve Bank. See .
Verification
Following the publication of these
preliminary results, we intend to verify,
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as provided in section 782(i)(3) of the
Act, the questionnaire responses of
these new shippers. At verification, we
will use standard verification
procedures, including on-site inspection
of the manufacturer’s facilities, the
examination of relevant sales and
financial records, and the selection of
original source documentation
containing relevant information. We
will prepare verification reports
outlining our verification results and
place these reports on file in the CRU.
Preliminary Results of the Reviews
As a result of our reviews, we
preliminarily find that the following
margins exist for the period November
1, 2007 through June 9, 2008:
FRESH GARLIC FROM THE PRC
Weighted-average
margin
(percent)
Exporter/manufacturer
Exported by Weifang Chenglong Import & Export Co., Ltd. and Produced by Jinxiang County Jichao Farm Business Co.,
Ltd ........................................................................................................................................................................................
Exported and Produced by Juye Homestead Fruits and Vegetables Co., Ltd .......................................................................
Exported and Produced Chengwu County Yuanxiang Industry & Commerce, Ltd ................................................................
Exported and Produced by Jinxiang Hejia Co., Ltd ................................................................................................................
Assessment Rates
The Department will determine, and
CBP shall assess, antidumping duties on
all appropriate entries. Consistent with
the final results of the 12th NSR, we
will direct CBP to assess importerspecific assessment rates based on the
resulting per-unit (i.e., per kilogram)
amount on each entry of the subject
merchandise during the POR. See 12th
NSR at 56552. Specifically, we will
divide the total dumping margins for
each importer by the total quantity of
subject merchandise sold to that
importer during the POR to calculate a
per-unit assessment amount. We will
direct CBP to assess importer-specific
assessment rates based on the resulting
per-unit (i.e., per kilogram) amount on
each entry of the subject merchandise
during the POR if any importer-specific
assessment rate calculated in the final
results of this review is above de
minimis. The Department will issue
appropriate assessment instructions
directly to CBP 15 days after publication
of the final results of these reviews.
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Cash Deposit Requirements
Consistent with the final results of the
12th NSR, we will establish and collect
a per-kilogram cash-deposit amount
which will be equivalent to the
company-specific dumping margin
published in the final results of these
reviews. Specifically, the following cash
deposit requirements will be effective
upon publication of the final results of
these reviews for all shipments of the
subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date of the final results, as provided by
section 751(a)(1) of the Act: (1) For
subject merchandise produced and
exported by Juye Homestead, Hejia or
Chengwu, the cash deposit rates will be
the rates determined in the final results
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of the new shipper reviews; (2) for
subject merchandise exported by but not
produced by Juye Homestead, exported
but not produced by Hejia, or exported
by but not produced by Chengwu, the
cash deposit rate will be the PRC-wide
rate; (3) for subject merchandise
produced by Jinxiang County Jichao
Farm Business Co., Ltd. (Jichao) and
exported by Chenglong, the cash deposit
rates will be the rates determined in the
final results of the new shipper reviews;
(4) for subject merchandise exported by
Chenglong but not produced by Jichao,
the cash deposit rates will be the PRCwide rate; and (5) for subject
merchandise produced or exported by
Tianheng or Zhengyang, the cash
deposit rate will be the PRC-wide rate.
These requirements, when imposed,
shall remain in effect until further
notice.
Disclosure
We will disclose the calculations used
in our analysis to parties to these
proceedings not later than ten days after
the date of public announcement, or if
there is no public announcement within
five days of the date of publication of
this notice. See 19 CFR 351.224(b).
Comments
Interested parties are invited to
comment on the preliminary results and
may submit case briefs and/or written
comments within 30 days of the date of
publication of this notice, unless
otherwise notified by the Department.
See 19 CFR 351.309(c)(ii). Rebuttal
briefs, limited to issues raised in the
case briefs, will be due five days later,
pursuant to 19 CFR 351.309(d). Parties
who submit case or rebuttal briefs in
these proceedings are requested to
submit with each argument: (1) a
statement of the issue, and (2) a brief
summary of the argument. Parties are
requested to provide a summary of the
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99.78
134.90
70.38
arguments not to exceed five pages and
a table of statutes, regulations, and cases
cited. Additionally, parties are
requested to provide their case brief and
rebuttal briefs in electronic format (e.g.,
WordPerfect, Microsoft Word, Adobe
Acrobat, etc.). Interested parties who
wish to request a hearing, or to
participate if one is requested, must
submit a written request to the Assistant
Secretary for Import Administration
within 30 days of the date of publication
of this notice. Requests should contain:
(1) the party’s name, address, and
telephone number; (2) the number of
participants; and (3) a list of issues to be
discussed. See 19 CFR 351.310(c). Issues
raised in the hearing will be limited to
those raised in case and rebuttal briefs.
The Department will issue the final
results of these reviews, including the
results of its analysis of issues raised in
any such written briefs or at the hearing,
if held, not later than 90 days after these
preliminary results are issued, unless
the final results are extended. See 19
CFR 351.214(i).
Notification to Importers
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
We are issuing and publishing these
preliminary results in accordance with
sections 751(a)(2)(B) and 777(i) of the
Act, and 19 CFR 351.214(h).
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Dated: April 27, 2009.
Ronald M. Lorentzen,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E9–10184 Filed 5–1–09; 8:45 am]
U.S. DEPARTMENT OF COMMERCE
BILLING CODE 3510–DS–P
Proposed Foreign-Trade Zone, Kern
County, California, Application and
Public Hearing
Foreign-Trade Zones Board
[Docket 18–2009]
DEPARTMENT OF COMMERCE
International Trade Administration
Application(s) for Duty-Free Entry of
Scientific Instruments
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Pursuant to Section 6(c) of the
Educational, Scientific and Cultural
Materials Importation Act of 1966 (Pub.
L. 89–651, as amended by Pub. L. 106–
36; 80 Stat. 897; 15 CFR part 301), we
invite comments on the question of
whether instruments of equivalent
scientific value, for the purposes for
which the instruments shown below are
intended to be used, are being
manufactured in the United States.
Comments must comply with 15 CFR
301.5(a)(3) and (4) of the regulations and
be postmarked on or before May 26,
2009. Address written comments to
Statutory Import Programs Staff, Room
3720, U.S. Department of Commerce,
Washington, D.C. 20230. Applications
may be examined between 8:30 A.M.
and 5:00 P.M. at the U.S. Department of
Commerce in Room 3720.
Docket Number: 09–013. Applicant:
Princeton University, Olden Street,
Princeton, NJ 08544. Instrument:
Electron Beam Evaporator.
Manufacturer: Plassys, France. Intended
Use: The instrument will be used in the
study of superconducting quantum
circuits, ultimately directed towards
superconducting quantum computation.
The evaporator will be used to make
low–defect aluminum Josephson
junctions, a necessary component of all
quantum bits. A unique feature of this
instrument is that it offers full stage
rotation, in–situ angle control for bilayer
Josephson junction fabrication and
controlled oxidation. Stage rotation is
necessary to fabricated Josephson
junctions in a single deposition process,
the only way of fabricating devises with
long coherence. Justification for Duty–
Free Entry: No instruments of the same
general category as the foreign
instrument begin manufactured in the
United States. Application accepted by
Commissioner of Customs: April 6,
2009.
Dated: April 27, 2009.
Christopher Cassel,
Acting Director, IA Subsidies Enforcement
Office.
[FR Doc. E9–10175 Filed 5–1–09; 8:45 am]
BILLING CODE 3510–DS–S
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15:26 May 01, 2009
Jkt 217001
An application has been submitted to
the Foreign–Trade Zones (FTZ) Board
(the Board) by the County of Kern
Department of Airports to establish a
general–purpose foreign–trade zone at
sites in Kern County, California.
Meadows Field Airport in Kern County
has been designated by U.S. Customs
and Border Protection as a user fee
airport. The application was submitted
pursuant to the provisions of the FTZ
Act, as amended (19 U.S.C. 81a–81u),
and the regulations of the Board (15 CFR
Part 400). It was formally filed on April
28, 2009. The applicant is authorized to
make the proposal under the California
Government Code, Sections 6300–6305.
The proposed zone would consist of
two sites located in Kern County,
California. They are as follows: Site 1
(231 acres, 3 parcels) - Parcel 1A (200
acres), within the 1,332–acre Meadow
Field Airport complex (includes an
aviation fuel depot), 1401 Skyway
Drive, Bakersfield; Parcel 1B (1 acre) –
at the P.R.I.M.E. (Pacific Rim & India
Multinational Enterprises Corporation)
warehouse facility, 2341 Cepheus Court,
Bakersfield; and, Parcel 1C (30 acres) –
located at the 110–acre Wingsport
Industrial Park, Merle Haggard & Wings
Way, Bakersfield. Parcels 1B and 1C are
adjacent to the Meadows Field Airport.
Parcel 1A is owned by Kern County.
Parcels 1B and 1C are owned by private
owners; and, Site 2 (167 acres) – located
at the 1,450–acre Tejon Industrial
Complex, intersection of I–5 and
Highway 99, Lebec. Site 2 will
incorporate parcels that have previously
been part of Site 2 of FTZ 202 and of
Subzone 202D within the Tejon
Industrial Complex.
The application indicates a need for
zone services in Kern County,
California. Several firms have indicated
an interest in using zone procedures for
warehousing/distribution activities for a
variety of products. Specific
manufacturing approvals are not being
sought at this time. Requests would be
made to the Board on a case–by-case
basis.
In accordance with the Board’s
regulations, Kathleen Boyce of the FTZ
staff is designated examiner to
investigate the application and report to
the Board.
As part of the investigation, the
Commerce examiner will hold a public
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hearing on May 27, 2009, 9 a.m., at the
International Terminal Building at
Meadows Field Airport, 1401 Skyway
Drive, Bakersfield, California.
Public comment on the application is
invited from interested parties.
Submissions (original and 3 copies)
shall be addressed to the Board’s
Executive Secretary at the address listed
below. The closing period for their
receipt is July 6, 2009. Rebuttal
comments in response to material
submitted during the foregoing period
may be submitted during the subsequent
15–day period (to July 20, 2009).
A copy of the application and
accompanying exhibits will be available
for public inspection at the Office of the
Executive Secretary, Foreign–Trade
Zones Board, Room 2111, U.S.
Department of Commerce, 1401
Constitution Avenue, NW, Washington,
DC 20230–0002, and in the ‘‘Reading
Room’’ section of the Board’s website,
which is accessible via www.trade.gov/
ftz.
For further information, contact
Kathleen Boyce at
Kathleen_Boyce@ita.doc.gov or (202)
482–1346.
Dated: April 28, 2009.
Andrew McGilvray,
Executive Secretary.
[FR Doc. E9–10182 Filed 5–1–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[Docket No. 090424759–9760–01]
RIN 0648–ZB55
Ocean Education Grants for AZA
Aquariums
AGENCY: Office of Education (OED),
Office of the Under Secretary (USEC),
National Oceanic and Atmospheric
Administration (NOAA), Commerce.
ACTION: Notice of funding availability.
SUMMARY: The NOAA Office of
Education (OEd) is issuing a request for
applications to support education
projects designed to engage the public
in activities that increase ocean and/or
climate literacy and the adoption of a
stewardship ethic. Funded projects will
be between one and five years in
duration and will support ocean
education projects led by eligible
applicants. Eligible applicants are only
501(c)(3) non-profit organizations that
are either aquariums accredited by the
Association of Zoos and Aquariums
(AZA) or have a legally sanctioned
E:\FR\FM\04MYN1.SGM
04MYN1
Agencies
[Federal Register Volume 74, Number 84 (Monday, May 4, 2009)]
[Notices]
[Pages 20452-20459]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10184]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic From the People's Republic of China: Preliminary
Results of New Shipper Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Department) is conducting six new
shipper reviews (NSRs) of the antidumping duty order on fresh garlic
from the People's Republic of China (PRC) covering the periods of
review (PORs) of November 1, 2007 through April 30, 2008 and November
1, 2007 through June 9, 2008. As discussed below, we preliminarily
determine that sales have been made in the United States at prices
below normal value (NV) with respect to certain exporters who
participated fully and have demonstrated their eligibility for a
separate rate in the NSRs. The NSRs for Jinxiang Tianheng Trade Co.,
Ltd. and Shandong Jinxiang Zhengyang Import & Export Co., Ltd. continue
to be preliminarily rescinded. The dumping margins are set forth in the
``Preliminary Results of the Reviews'' section below. 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. We invite
interested parties to comment on these preliminary results. See
``Comments'' section below.
DATES: Effective Date: May 4, 2009.
FOR FURTHER INFORMATION CONTACT: Toni Page, Elfi Blum, or Jun Jack
Zhao, AD/CVD Operations, Office 6, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1398, (202) 482-0197, or (202) 482-1396, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 21, 22, 27, and 30, 2008, pursuant to section
751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (the Act), and 19
CFR 351.214(c), the Department received NSR requests from Jinxiang
Hejia Co., Ltd (Hejia), Weifang Chenglong Import & Export Co., Ltd.
(Chenglong), Jinxiang Tianheng Trade Co., Ltd (Tianheng), Juye
Homestead Fruits and Vegetables Co. Ltd. (Juye Homestead), Chengwu
County Yuanxing Industry & Commerce Co., Ltd. (Chengwu), and Shandong
Jinxiang Zhengyang Import & Export Co., Ltd. (Zhengyang). On June 30,
2008, the Department initiated NSRs for all six companies. See Fresh
Garlic From the People's Republic of China: Initiation of Antidumping
Duty New Shipper Reviews, 73 FR 38979 (published July 8, 2008).
On June 30, 2008 and January 2, 2009, the Department placed copies
of CBP documents on the record of the NSRs pertaining to each shipment
of garlic from the PRC exported to the United States by these six
companies during the POR.\1\ On July 29, 2008, we issued a memorandum
extending the end of the POR from April 30, 2008 to June 9, 2008, so as
to capture entries that entered the U.S. market after April 30, 2008.
See Memorandum to the File from Martha Douthit Re: Expansion of the
Period of Review in the New Shipper Review of Fresh Garlic from the
People's Republic of China (July 29, 2008), on file in the Central
Records Unit (CRU), room 1117 of the main Commerce building.
---------------------------------------------------------------------------
\1\ See the Memorandum from Jun Jack Zhao Re: New Shipper Review
of Fresh Garlic from the People's Republic of China: Customs Data
(June 30, 2008) and the Memorandum from Toni Page Re: New Shipper
Review of Fresh Garlic from the People's Republic of China: Entry
Documents (January 2, 2009).
---------------------------------------------------------------------------
Since the initiation of these reviews, the Department issued
original and supplemental questionnaires to Hejia, Chenglong, Tianheng,
Juye Homestead, Chengwu, and Zhengyang. All six companies responded to
the Department's questionnaires in a timely manner. On August 20, 2008,
the Department sent interested parties a letter requesting comments on
the surrogate country selection and information pertaining to valuing
factors of production. See Letter to Interested Parties from the
Department Re: New Shipper Reviews of Fresh Garlic from the People's
Republic of China (``PRC'') (August 20, 2008). On November 12, 2008,
Zhengyang submitted comments on the surrogate country selection and
information pertaining to valuing factors of production. See Letter to
the Department from Zhengyang Re: Surrogate Value Submission: Fresh
Garlic from the People's Republic of China: New Shipper Review for 11/
01/07-04/30/08 (November 12, 2008) (Zhengyang's Surrogate Value Data).
The Fresh Garlic Producers Association (FGPA) and its individual
members (Christopher Ranch LLC, the Garlic Company, Valley Garlic, and
Vessey and Company, Inc.) (collectively, petitioners) also submitted
comments regarding surrogate values for these NSRs. See Letter to the
Department from Petitioners Re: 14th New Shipper Review of the
Antidumping Duty Order on Fresh Garlic from the People's Republic of
China (November 26, 2008) (Petitioners' Surrogate Value Data). In
addition, Zhengyang submitted comments rebutting Petitioners' Surrogate
Value Data submission. See Letter to the Department from Zhengyang Re:
Rebuttal Documents on Surrogate Value Submission: Fresh Garlic from the
People's Republic of China: New Shipper Review for 11/01/07-04/30/08
(December 8, 2008) (Zhengyang's Rebuttal Surrogate Value Data). All
submitted comments are on file in the CRU. No other party has submitted
surrogate values or surrogate country comments on the record of this
proceeding.
On December 3, 2008, the Department extended the preliminary
results of these NSRs to no later than April 27, 2009. See Fresh Garlic
from the People's Republic of China: Extension of Time Limits for the
Preliminary Results of the New Shipper Reviews, 73 FR 73638 (December
3, 2008). On March 18, 2009, the Department notified all interested
parties of its intent to preliminarily rescind the NSRs for Tianheng
and Zhengyang. See Memorandum from Barbara E. Tillman Re: Bona Fide
Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh
Garlic from the People's Republic of China (``PRC''): Jinxiang Tianheng
Trade Co. and Intent to Preliminarily Rescind Jinxiang Tianheng Trade
Co.'s New Shipper Review (March 18, 2009) and Memorandum from Barbara
E. Tillman Re: Bona Fide Nature of the Sale in the Antidumping Duty New
Shipper Review of Fresh Garlic from the People's Republic of China
(``PRC''): Shandong Jinxiang Zhengyang Import & Export Co., Ltd., and
Intent to Preliminarily Rescind Shandong
[[Page 20453]]
Jinxiang Zhengyang Import & Export Co., Ltd.'s New Shipper Review
(March 18, 2009). On April 1, 2009, we received comments from Tianheng
and Zhengyang. See Letter to the Department from Tianheng Re: Response
to Bona Fides Memorandum of March 18, 2009; Jinxiang Tianheng Trade
Co., Ltd.; Fresh Garlic from the People's Republic of China: New
Shipper Review for 11/01/07-04/30/08; and Letter to the Department from
Zhengyang Re: Response to Bona Fides Memorandum of March 18, 2009;
Shandong Jinxiang Zhengyang Import and Export Co., Ltd.; Fresh Garlic
from the People's Republic of China: New Shipper Review for 11/01/07-
04/30/08. The Department is reviewing the comments and timely
information submitted by all interested parties on this issue. The
Department intends to address these comments and factual information in
a subsequent memorandum that will be issued prior to the final results
of these NSRs.
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.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (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 Notice of 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 Rates
A designation of a country 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.
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 the Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China (Sparklers), 56 FR
20588 (May 6, 1991), as amplified by the Notice of Final Determination
of Sales at Less Than Fair Value: Silicon Carbide from the People's
Republic of China, 59 FR 22585 (May 2, 1994) (Silicon Carbide).
The Department's separate-rate status test to determine whether the
exporter is independent from government control does not consider, in
general, macroeconomic/border-type controls (e.g., export licenses,
quotas, and minimum export prices), particularly if these controls are
imposed to prevent dumping. The test focuses, rather, on controls over
the investment, pricing, and output decision-making process at the
individual firm level.\2\
---------------------------------------------------------------------------
\2\ See Certain Cut-to-Length Carbon Steel Plate from Ukraine:
Final Determination of Sales at Less than Fair Value, 62 FR 61754,
61758 (November 19, 1997), and Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 62
FR 61276, 61279 (November 17, 1997).
---------------------------------------------------------------------------
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; and (2) any
legislative enactments decentralizing control of companies.
Throughout the course of this proceeding, Hejia, Juye Homestead,
Chenglong, and Chengwu have each placed a number of documents on the
record to demonstrate absence of de jure control including business
licenses, financial statements, and narrative information regarding
government laws and regulations on corporate ownership, and the
companies' operations and selection of management.\3\ In addition,
Hejia, Juye Homestead, Chenglong, and Chengwu have each placed on the
record the ``Foreign Trade Law of the People's Republic of China'', the
``Company 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 found that they establish an absence of de
jure control. See, e.g., Honey from the People's Republic of China:
Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review, 72 FR 102, 105 (January 3, 2006), unchanged in
Honey from the People's Republic of China: Final Results and Final
Rescission, In Part, of Antidumping Duty Administrative Review, 72 FR
37715, 37716 (July 11, 2007). 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 of Hejia, Juye Homestead,
Chenglong, and Chengwu based on: (1) an absence of restrictive
stipulations associated with the exporter's business license; and (2)
the legal authority on the record
[[Page 20454]]
decentralizing control over the respondent.
---------------------------------------------------------------------------
\3\ On March 18, 2009, the Department preliminarily rescinded
the NSRs of Tianheng and Zhengyang. As such, we have not conducted a
separate rate analysis of either company.
---------------------------------------------------------------------------
B. Absence of De Facto Control
As stated in previous cases, there is evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Silicon Carbide, 59 FR at 22586-87. Therefore, the Department has
determined that an analysis of de facto control is critical in
determining whether the respondents are, in fact, subject to a degree
of government control which would preclude the Department from
assigning separate rates.
The absence of de facto governmental control over exports is based
on whether a company: (1) Sets its own export prices independent of the
government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide,
59 FR at 22587 and Sparklers, 56 FR at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
The Department conducted a separate-rates analysis for each new
shipper. In Hejia's, Juye Homestead's, Chenglong's, and Chengwu's
questionnaire responses, each new shipper submitted evidence indicating
an absence of de facto governmental control over its export activities.
Specifically, this evidence indicates that: (1) Each new shipper sets
its own export prices independent of the government and without the
approval of a government authority; (2) each new shipper retains the
proceeds from its sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) each new shipper has
a general manager, branch manager or division manager with the
authority to negotiate and bind the company in an agreement; (4) the
general manager is selected by the board of directors or company
employees, and the general manager appoints the deputy managers and the
manager of each department; and (5) there is no restriction on each new
shipper's use of export revenues. The questionnaire responses of the
new shippers 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.
Therefore, the Department preliminarily finds that Hejia, Juye
Homestead, Chenglong, and Chengwu have each established, prima facie,
that they qualify for separate rates status under the criteria
established by Silicon Carbide and Sparklers.
Bona Fide Analysis
Consistent with Department practice, we examined the bona fide
nature of the new shipper sales at issue. In evaluating whether or not
a sale in a new shipper review is commercially reasonable, and
therefore bona fide, the Department considers, inter alia, such factors
as: (1) The timing of the sale; (2) the price and quantity; (3) the
expenses arising from the transaction; (4) whether the goods were
resold at a profit; and (5) whether the transaction was made on an
arm's-length basis. See Tianjin Tiancheng Pharmaceutical Co., Ltd.
v.United States, 366 F. Supp. 2d 1246, 1250 (CIT 2005) (TTPC).
Accordingly, the Department considers a number of factors in its bona
fides analysis, ``all of which may speak to the commercial realities
surrounding an alleged sale of subject merchandise.'' See Hebei New
Donghua Amino Acid Co., Ltd. v. United States, 374 F. Supp. 2d 1333,
1342 (CIT 2005) (citing Fresh Garlic From the People's Republic of
China: Final Results of Antidumping Administrative Review and
Rescission of New Shipper Review, 67 FR 11283 (March 13, 2002) and
accompanying Issues and Decision Memorandum: New Shipper Review of
Clipper Manufacturing Ltd.). Also, in TTPC, the court affirmed the
Department's practice of considering that ``any factor which indicates
that the sale under consideration is not likely to be typical of those
which the producer will make in the future is relevant,'' (TTPC, 366 F.
Supp. 2d at 1250), and found that ``the weight given to each factor
investigated will depend on the circumstances surrounding the sale.''
TTPC, 366 F. Supp. 2d at 1263. Finally, in New Donghua, the CIT
affirmed the Department's practice of evaluating the circumstances
surrounding a NSR sale so that a respondent does not unfairly benefit
from an atypical sale, and obtain a lower dumping margin than the
producer's usual commercial practice would dictate.
Tianheng: On March 18, 2009, we preliminarily concluded that the
sale made by Tianheng during the POR was not a bona fide commercial
transaction and thus notified parties of our intent to rescind the NSR
for this company. The Department came to this conclusion based on the
totality of circumstances, namely: (a) the atypical nature of
Tianheng's POR sale; and (b) other evidence of a non-bona fide
transaction. Since much of our analysis regarding the evidence of the
bona fides of the transaction involves business proprietary
information, a full discussion of the bases for our decision to rescind
was set forth in the Memorandum from Barbara E. Tillman Re: Bona Fide
Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh
Garlic from the People's Republic of China (``PRC''): Jinxiang Tianheng
Trade Co. and Intent to Preliminarily Rescind Jinxiang Tianheng Trade
Co.'s New Shipper Review (March 18, 2009) (Tianheng Bona Fides
Memorandum).
On April 1, 2009, Tianheng submitted comments and factual
information addressing the Department's bona fides analysis. The
Department intends to address these comments and factual information in
a subsequent memorandum that will be issued prior to the final results.
Zhengyang: On March 18, 2009, we preliminarily concluded that the
sale made by Zhengyang during the POR was not a bona fide commercial
transaction and thus preliminarily rescinded the NSR for this company.
The Department came to this conclusion based on the totality of
circumstances, namely: (a) the atypical nature of Zhengyang's POR sale;
and (b) other evidence of a non-bona fide transaction. Since much of
our analysis regarding the evidence of the bona fides of the
transaction involves business proprietary information, a full
discussion of the bases for our decision to rescind is set forth in the
Memorandum from Barbara E. Tillman Re: Bona Fide Nature of the Sale in
the Antidumping Duty New Shipper Review of Fresh Garlic from the
People's Republic of China (``PRC''): Shandong Jinxiang Zhengyang
Import & Export Co., Ltd., and Intent to Preliminarily Rescind Shandong
Jinxiang Zhengyang Import & Export Co., Ltd.'s New Shipper Review
(March 18, 2009) (Zhengyang Bona Fides Memorandum). On April 1, 2009,
Zhengyang submitted comments and factual information addressing the
Department's bona fides analysis. The Department intends to address
these comments and factual information in a subsequent memorandum
issued prior to the final results.
Hejia: We preliminarily find that the sale made by Hejia during the
POR was a bona fide commercial transaction based on the totality of
circumstances, namely: (1) Neither Hejia nor its customer incurred any
extraordinary expenses arising from the transaction; (2) the sale was
made between
[[Page 20455]]
unaffiliated parties at arm's length; and (3) the timing of the sale
does not indicate that this sale was not bona fide. However, we note
that the Department will continue to examine all aspects of Hejia's POR
sale including whether it is atypical, and, as such, not indicative of
what its future sales may be. Since much of our analysis regarding the
evidence of the bona fides of the transaction involves business
proprietary information, a full discussion of the bases for our
preliminary decision is set forth in the Memorandum from Barbara E.
Tillman Re: Bona Fide Nature of the Sale in the Antidumping Duty New
Shipper Review of Fresh Garlic from the People's Republic of China
(``PRC''): Shandong Jinxiang Hejia Co., Ltd. New Shipper Review (April
27, 2009) (Hejia Bona Fides Memorandum). Accordingly, we will continue
to examine the bona fides of Hejia's sale after the preliminary
results.
Based on our investigation into the bona fide nature of Hejia's
reviewed sale, its questionnaire responses, as well as its eligibility
for a separate rate (see the ``Separate Rates'' section above) and the
Department's preliminary determination that Hejia was not affiliated
with any exporter or producer that had previously shipped subject
merchandise to the United States, we preliminarily determine that Hejia
has met the requirements to qualify as a new shipper during the POR.
Therefore, for purposes of these preliminary results, we are treating
Hejia's new shipper sale of subject merchandise to the United States as
an appropriate transaction for its review.
Juye Homestead: We preliminarily find that the sale made by Juye
Homestead was a bona fide commercial transaction. Specifically, we find
that: (1) The price of the sale was within the range of the prices of
other entries of subject merchandise from the PRC into the United
States during the POR; (2) neither Juye Homestead nor its customer
incurred any extraordinary expenses arising from the transaction; (3)
the sale was made between unaffiliated parties at arm's length; and (4)
the timing of the sale does not indicate that this sale was not bona
fide. However, we note that there is certain evidence on the record
that suggests that the bona fides of Juye Homestead's sale is not
definitive. Since much of our analysis regarding the evidence of the
bona fides of the transaction involves business proprietary
information, a full discussion of the bases for our preliminary
decision is set forth in the Memorandum from Jun Jack Zhao Re: Bona
Fide Nature of the Sale in the Antidumping Duty New Shipper Review of
Fresh Garlic from the People's Republic of China (``PRC''): Juye
Homestead Fruits and Vegetables Co., Ltd. (April 27, 2009).
Accordingly, we will continue to examine the bona fides of Juye
Homestead's sale after the preliminary results.
Based on our investigation into the bona fide nature of Juye
Homestead's reviewed sale, its questionnaire responses, as well as its
eligibility for a separate rate (see the ``Separate Rates'' section
above) and the Department's determination that Juye Homestead was not
affiliated with any exporter or producer that had previously shipped
subject merchandise to the United States, we preliminarily determine
that Juye Homestead has met the requirements to qualify as a new
shipper during the POR. Therefore, for purposes of these preliminary
results, we are treating Juye Homestead's new shipper sale of subject
merchandise to the United States as an appropriate transaction for its
review.
Chenglong: We preliminarily find that the new shipper sale made by
Chenglong was a bona fide commercial transaction. Specifically, we
found that: (1) The price of the sale was within the range of the
prices of other entries of subject merchandise from the PRC into the
United States during the POR; (2) neither Chenglong nor its customer
incurred any extraordinary expenses arising from the transaction; (3)
the sale was made between unaffiliated parties at arm's length; and (4)
the timing of the sale does not indicate that this sale was not bona
fide. However, we note that certain evidence on the record suggests
that the bona fides of Chenglong's sale is not definitive. Since much
of our analysis regarding the evidence of the bona fides of the
transaction involves business proprietary information, a full
discussion of the bases for our preliminary decision is set forth in
the Memorandum from Jun Jack Zhao Re: Bona Fide Nature of the Sale in
the Antidumping Duty New Shipper Review of Fresh Garlic from the
People's Republic of China (``PRC''): Weifang Chenglong Import & Export
Co., Ltd. (April 27, 2009). Accordingly, we will continue to examine
the bona fides of Chenglong's sale after the preliminary results.
Based on our investigation into the bona fide nature of Chenglong's
reviewed sale, its questionnaire responses, as well as its eligibility
for a separate rate (see the ``Separate Rates'' section above) and the
Department's determination that Chenglong was not affiliated with any
exporter or producer that had previously shipped subject merchandise to
the United States, we preliminarily determine that Chenglong has met
the requirements to qualify as a new shipper during the POR. Therefore,
for purposes of these preliminary results, we are treating Chenglong's
new shipper sale of subject merchandise to the United States as an
appropriate transaction for its review.
Chengwu: We preliminarily find that the new shipper sale made by
Chengwu was a bona fide commercial transaction. Specifically, we found
that: (1) The price of the sale was within the range of the prices of
other entries of subject merchandise from the PRC into the United
States during the POR; (2) neither Chengwu nor its customer incurred
any extraordinary expenses arising from the transaction; (3) the sale
was made between unaffiliated parties at arm's length; and (4) the
timing of the sale does not indicate that this sale was not bona fide.
However, we note that there is certain evidence on the record that
suggests the bona fides of Chenwu's sale is not definitive. Since much
of our analysis regarding the evidence of the bona fides of the
transaction involves business proprietary information, a full
discussion of the bases for our preliminary decision is set forth in
the Memorandum from Toni Page Re: Bona Fide Nature of the Sale in the
Antidumping Duty New Shipper Review of Fresh Garlic from the People's
Republic of China (``PRC''): Chengwu County Yuanxiang Industry &
Commerce Co., Ltd. (April 27, 2009). Accordingly, we will continue to
examine the bona fides of Chengwu's sale after the preliminary results.
Based on our investigation into the bona fide nature of Chengwu's
reviewed sale, its questionnaire responses, as well as its eligibility
for a separate rate (see the ``Separate Rates'' section above) and the
Department's determination that Chengwu was not affiliated with any
exporter or producer that had previously shipped subject merchandise to
the United States, we preliminarily determine that Chengwu has met the
requirements to qualify as a new shipper during the POR. Therefore, for
purposes of these preliminary results, we are treating Chengwu's new
shipper sale of subject merchandise to the United States as an
appropriate transaction for its review.
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 factors of production (FOPs),
valued in a surrogate market economy country or countries considered to
be
[[Page 20456]]
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. 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).
As discussed in the ``Non-Market Economy Country Status'' section
above, the Department considers the PRC to be an NME country. Pursuant
to section 773(c)(4) of the Act, the Department determined that India,
Colombia, Indonesia, the Philippines, and Thailand are countries
comparable to the PRC in terms of economic development. See the
Memorandum to All Interested Parties Re: New Shipper Reviews of Fresh
Garlic from the People's Republic of China (``PRC'') (August 20, 2008)
at Attachment 1. Also in accordance with section 773(c)(4) of the Act,
the Department has found that India is a significant producer of
comparable merchandise. Moreover, the Department finds India to be a
reliable source for surrogate values because India is at a similar
level of economic development pursuant to section 773(c)(4) of the Act,
is a significant producer of comparable merchandise, and has publicly
available and reliable data. Furthermore, the Department notes that
India has been the primary surrogate country in past segments of this
proceeding, and the only surrogate value data 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
Letter to All Interested Parties Re: New Shipper Reviews of Fresh
Garlic from the People's Republic of China (``PRC'') at Attachment 1
(August 20, 2008). The sources of the surrogate factor values are
discussed under the ``Normal Value'' section below and in the
Memorandum from Toni Page Re: Preliminary Results of the 2007-2008 New
Shipper Reviews of Fresh Garlic from the People's Republic of China:
Surrogate Values (April 27, 2009) (Surrogate Values Memorandum).
U.S. Price
In accordance with section 772(a) of the Act, we calculated the
export price for sales to the United States for Hejia, Juye Homestead,
Chenglong, and Chengwu because each company made its sale to an
unaffiliated party before the date of importation and the use of
constructed export prices was not otherwise warranted. We calculated
each company's export price based on its price to unaffiliated
purchasers in the United States. In accordance with section 772(c) of
the Act, where appropriate, we deducted from the starting price to
unaffiliated purchasers the expenses for foreign inland freight,
international freight, brokerage and handling, marine insurance,
warehousing, and U.S. customs duties. For the expenses that were either
provided by an NME vendor or paid for using an NME currency, we used
surrogate values as appropriate. See the ``Factor Valuations'' section
below for details regarding the surrogate values for movement expenses.
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 country 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. See, e.g., 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
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)).
For the final results of certain prior administrative reviews (ARs)
and NSRs (i.e., 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 (December
11, 2006) (unchanged in the final results) (11th AR and NSRs); Fresh
Garlic from the People's Republic of China: Final Results and Partial
Rescission of the 12th Administrative Review, 73 FR 34251 (June 17,
2008) (12th AR), and Fresh Garlic from the People's Republic of China:
Final Results and Rescission, In Part, of Twelfth New Shipper Reviews,
73 FR 56550 (September 29, 2008) (12th NSR), the Department found that
garlic industry producers in the PRC do not generally track actual
labor hours incurred for growing, tending, and harvesting activities
and, thus, do not maintain appropriate records which would allow most,
if not all, respondents to quantify, report, and substantiate this
information. See the Memorandum from Toni Page Re: New Shipper Reviews
of Fresh Garlic from the People's Republic of China--Intermediate
Methodology Source Documents (April 27, 2009) (Intermediate Input
Methodology Source Documents). In the 11th AR and NSRs, 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.'' See 11th AR and NSRs at 71520. In the course of these reviews,
one company, Tianheng, reported its growing FOPs.\4\ (Hejia, Juye
Homestead, Chenglong, Zhengyang, and Chengwu did not report FOPs
related to growing whole garlic bulbs.) As such, for the reasons
outlined in Memorandum from Toni Page Re: 2007-2008 New Shipper Review
of Fresh Garlic from the People's Republic of China: Intermediate Input
Methodology (April 27, 2009) (Intermediate Input Methodology
Memorandum), the Department is applying an ``intermediate-product
valuation methodology'' to the NSR respondents 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''), adjusting for yield losses during the processing stages,
and adding the respondents' processing costs,
[[Page 20457]]
which were calculated using their reported usage rates for processing
fresh garlic. See Intermediate Input Methodology Memorandum.
---------------------------------------------------------------------------
\4\ On March 18, 2009, the Department preliminarily rescinded
the NSR of Tianheng. As such, we have not conducted an analysis of
the growing FOPs that Tianheng reported.
---------------------------------------------------------------------------
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. 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). For more information regarding the Department's valuation for
the various FOPs, see Surrogate Values Memorandum.
Garlic Bulb Valuation
The Department's practice when selecting the ``best available
information'' for valuing FOPs, in accordance with section 773(c)(1) of
the Act, is to select, to the extent practicable, surrogate values
which are publicly available, product-specific, representative of a
broad market average, tax-exclusive and contemporaneous with the POR.
See Final Determination of Sales at Less Than Fair Value: Certain
Artist Canvas from the People's Republic of China, 71 FR 16116 (March
30, 2006) and accompanying Issues and Decision Memorandum at Comment 2.
The Department has applied an intermediate input methodology for
respondents. Therefore, we sought to identify the best available
surrogate value for the garlic bulb input to production, as opposed to
finding surrogate values for the steps involved in planting, growing,
and harvesting raw garlic (such as seeds, water, fertilizer, etc.). See
Petitioners' Surrogate Value Data at 2; see also Surrogate Values
Memorandum. For the preliminary results of these reviews, we find that
data from the Azadpur APMC's ``Market Information Bulletin'' is the
most appropriate information available to value the respondents' garlic
bulb input.
In their FOP databases, respondents reported garlic bulb input size
ranges for each type of garlic produced and sold to the U.S. during the
POR. Respondents, with the exception of Hejia, reported garlic bulb
input sizes ranging between 45 mm and 65 mm. Consistent with the final
results of the 12th administrative review, the Department continues to
find that garlic bulb sizes that range from 55 mm and above are Grade
Super-A and garlic bulb sizes that range between 40 mm and 55 mm are
Grade A and Grade Super-A. See Surrogate Values Memorandum. Therefore,
for these preliminary results, for respondents other than Hejia, we
have used Grade Super-A values when respondents have reported bulb
input sizes that range from 55 mm and above, and an average of Grade A
and Super-A values when they have reported bulb input sizes that are in
ranges from 40 mm to 55 mm. To calculate the surrogate value for garlic
bulbs, we first averaged all data points from November 1, 2007 to April
30, 2008 for: (1) Grade Super-A; and (2) Grade A. We then subtracted a
7 percent fee (6 percent commission fee plus 1 percent market fee)
charged on transactions at the Azadpur APMC from the Grade A and Grade
Super-A averages. See Surrogate Values Memorandum.
Garlic Bulb Valuation for Hejia
Hejia has submitted information on the record indicating that the
garlic it sold, and the garlic bulb input thereof, possessed physical
characteristics which significantly distinguish it from the Grade A and
Super Grade A garlic on which we rely to value garlic bulb inputs. As
such, neither Grade A nor Super Grade A garlic appears to be an
appropriate basis from which to derive a surrogate value for the bulb
input used by Hejia. Moreover, there is no other appropriate bulb
surrogate value information on the record of this review. Thus, for
these preliminary results, we have determined to use an FOB sales offer
from Sundaram Overseas Operations (SOO), an Indian trading company, as
the basis for deriving NV. SOO's sales offer appears to be an Indian
export price for a whole garlic product that is physically similar to
the product sold by Hejia. However, we have incomplete information
regarding the FOB sales offer made by SOO. As such, for the purposes of
these preliminary results, we are making the following assumptions: (1)
SOO acted only as a trading company and did not further process the
garlic at issue; and (2) the processing FOPs for the garlic at issue
are similar to the processing FOPs of other whole garlic subject to
these NSRs. Therefore, we adjusted SOO's price by removing the profit,
SG&A, and overhead expenses associated with the activities of an Indian
trading company. As such, the resulting NV will only reflect the costs
and profit associated with processing whole garlic. See Surrogate
Values Memorandum.
The Department is requesting comments and factual information
regarding the appropriate surrogate value to use in calculating NV for
Hejia for purposes of the final results of review. Due to the unusual
nature of this valuation and calculation, regardless of whether there
is new factual information on the record after issuance of these
preliminary results, the Department will continue to consider the
appropriateness of this calculation for purposes of the final results
of review. Since much of our analysis regarding Hejia's garlic and the
garlic bulb input thereof has been treated as business proprietary
information, a full discussion of the bases for calculating an
appropriate surrogate value for Hejia's garlic bulb input is set forth
in the Surrogate Values Memorandum.
Financial Ratios
Petitioners and Zhengyang submitted comments and factual
information regarding surrogate financial ratios. See Petitioners'
Surrogate Value Data, Zhengyang's Surrogate Value Data, and Zhengyang's
Rebuttal Surrogate Value Data submissions. After analyzing these
comments and factual information, the Department has determined that it
is appropriate to include the financial statements of additional Indian
companies in the calculation of the financial ratios used to value
overhead expenses, selling expenses, general expenses, and profits for
the respondents. Specifically, the Department will calculate financial
ratios using a simple average of financial data from three Indian
processors of tea and/or other agricultural products. Using an average
of these three companies' data will allow us to calculate financial
ratios that better reflect the broader experience of the surrogate
industry. See Surrogate Values Memorandum.
Currency Conversion
We 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. sales, as certified by the Federal Reserve Bank.
See <https://www.ia.ita.doc.gov/exchange/>.
Verification
Following the publication of these preliminary results, we intend
to verify,
[[Page 20458]]
as provided in section 782(i)(3) of the Act, the questionnaire
responses of these new shippers. At verification, we will use standard
verification procedures, including on-site inspection of the
manufacturer's facilities, the examination of relevant sales and
financial records, and the selection of original source documentation
containing relevant information. We will prepare verification reports
outlining our verification results and place these reports on file in
the CRU.
Preliminary Results of the Reviews
As a result of our reviews, we preliminarily find that the
following margins exist for the period November 1, 2007 through June 9,
2008:
Fresh Garlic From the PRC
------------------------------------------------------------------------
Weighted-average
Exporter/manufacturer margin (percent)
------------------------------------------------------------------------
Exported by Weifang Chenglong Import & Export Co., 39.85
Ltd. and Produced by Jinxiang County Jichao Farm
Business Co., Ltd................................
Exported and Produced by Juye Homestead Fruits and 99.78
Vegetables Co., Ltd..............................
Exported and Produced Chengwu County Yuanxiang 134.90
Industry & Commerce, Ltd.........................
Exported and Produced by Jinxiang Hejia Co., Ltd.. 70.38
------------------------------------------------------------------------
Assessment Rates
The Department will determine, and CBP shall assess, antidumping
duties on all appropriate entries. Consistent with the final results of
the 12th NSR, we will direct CBP to assess importer-specific assessment
rates based on the resulting per-unit (i.e., per kilogram) amount on
each entry of the subject merchandise during the POR. See 12th NSR at
56552. Specifically, we will divide the total dumping margins for each
importer by the total quantity of subject merchandise sold to that
importer during the POR to calculate a per-unit assessment amount. We
will direct CBP to assess importer-specific assessment rates based on
the resulting per-unit (i.e., per kilogram) amount on each entry of the
subject merchandise during the POR if any importer-specific assessment
rate calculated in the final results of this review is above de
minimis. The Department will issue appropriate assessment instructions
directly to CBP 15 days after publication of the final results of these
reviews.
Cash Deposit Requirements
Consistent with the final results of the 12th NSR, we will
establish and collect a per-kilogram cash-deposit amount which will be
equivalent to the company-specific dumping margin published in the
final results of these reviews. Specifically, the following cash
deposit requirements will be effective upon publication of the final
results of these reviews for all shipments of the subject merchandise
entered, or withdrawn from warehouse, for consumption on or after the
publication date of the final results, as provided by section 751(a)(1)
of the Act: (1) For subject merchandise produced and exported by Juye
Homestead, Hejia or Chengwu, the cash deposit rates will be the rates
determined in the final results of the new shipper reviews; (2) for
subject merchandise exported by but not produced by Juye Homestead,
exported but not produced by Hejia, or exported by but not produced by
Chengwu, the cash deposit rate will be the PRC-wide rate; (3) for
subject merchandise produced by Jinxiang County Jichao Farm Business
Co., Ltd. (Jichao) and exported by Chenglong, the cash deposit rates
will be the rates determined in the final results of the new shipper
reviews; (4) for subject merchandise exported by Chenglong but not
produced by Jichao, the cash deposit rates will be the PRC-wide rate;
and (5) for subject merchandise produced or exported by Tianheng or
Zhengyang, the cash deposit rate will be the PRC-wide rate. These
requirements, when imposed, shall remain in effect until further
notice.
Disclosure
We will disclose the calculations used in our analysis to parties
to these proceedings not later than ten days after the date of public
announcement, or if there is no public announcement within five days of
the date of publication of this notice. See 19 CFR 351.224(b).
Comments
Interested parties are invited to comment on the preliminary
results and may submit case briefs and/or written comments within 30
days of the date of publication of this notice, unless otherwise
notified by the Department. See 19 CFR 351.309(c)(ii). Rebuttal briefs,
limited to issues raised in the case briefs, will be due five days
later, pursuant to 19 CFR 351.309(d). Parties who submit case or
rebuttal briefs in these proceedings are requested to submit with each
argument: (1) a statement of the issue, and (2) a brief summary of the
argument. Parties are requested to provide a summary of the arguments
not to exceed five pages and a table of statutes, regulations, and
cases cited. Additionally, parties are requested to provide their case
brief and rebuttal briefs in electronic format (e.g., WordPerfect,
Microsoft Word, Adobe Acrobat, etc.). Interested parties who wish to
request a hearing, or to participate if one is requested, must submit a
written request to the Assistant Secretary for Import Administration
within 30 days of the date of publication of this notice. Requests
should contain: (1) the party's name, address, and telephone number;
(2) the number of participants; and (3) a list of issues to be
discussed. See 19 CFR 351.310(c). Issues raised in the hearing will be
limited to those raised in case and rebuttal briefs. The Department
will issue the final results of these reviews, including the results of
its analysis of issues raised in any such written briefs or at the
hearing, if held, not later than 90 days after these preliminary
results are issued, unless the final results are extended. See 19 CFR
351.214(i).
Notification to Importers
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
We are issuing and publishing these preliminary results in
accordance with sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR
351.214(h).
[[Page 20459]]
Dated: April 27, 2009.
Ronald M. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-10184 Filed 5-1-09; 8:45 am]
BILLING CODE 3510-DS-P