Fresh Garlic from the People's Republic of China: Final Results and Final Rescission, In Part, of New Shipper Reviews, 50952-50955 [E9-23834]

Download as PDF 50952 Federal Register / Vol. 74, No. 190 / Friday, October 2, 2009 / Notices Dated: September 28, 2009. John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations. [FR Doc. E9–23833 Filed 10–1–09; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration [A–570–831] pwalker on DSK8KYBLC1PROD with NOTICES Fresh Garlic from the People’s Republic of China: Final Results and Final Rescission, In Part, of New Shipper Reviews AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (Department) is conducting the new shipper reviews (NSRs) of the antidumping duty order on fresh garlic from the People’s Republic of China (PRC) covering the periods of review (PORs) of November 1, 2007 through April 30, 2008 and November 1, 2007 through June 9, 2008.1 As discussed below, we determine that sales have been made in the United States at prices below normal value (NV) with respect to two exporters who participated fully and have demonstrated their eligibility for separate rates in the NSR: Chengwu County Yuanxiang Industry & Commerce, Ltd. (Yuanxiang) and Jinxiang Hejia Co., Ltd. (Hejia). In the preliminary results of this review, we found Yuanxiang’s and Hejia’s POR sales were made on a bona fide basis. See Fresh Garlic From the People’s Republic of China: Preliminary Results of New Shipper Reviews, 74 FR 20452 (May 4, 2009) (Preliminary Results). We are continuing to find Yuanxiang’s and Hejia’s sales to be bona fide for the final results of this review. In addition, we are rescinding the NSRs for four companies: Weifang Chenglong Import & Export Co., Ltd. (Chenglong), Jinxiang Tianheng Trade Co., Ltd. (Tianheng), Jinxiang Zhengyang Import & Export Co., Ltd. (Zhengyang), and Juye Homestead Fruits and Vegetables Co., Ltd. (Juye). We intend to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on entries of subject merchandise during the POR for which importer–specific assessment rates are above de minimis. EFFECTIVE DATE: October 2, 2009. 1 We extended the end of the period of review (POR) from April 30, 2007 to June 9, 2008, to capture entries for three respondents. See the ‘‘Expansion of the POR’’ section in the Preliminary Results. VerDate Nov<24>2008 16:40 Oct 01, 2009 Jkt 220001 FOR FURTHER INFORMATION CONTACT: Toni Page, Scott Lindsay, or Summer Avery, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–1398, (202) 482– 0780, or (202) 482–4052, respectively. SUPPLEMENTARY INFORMATION: Background On May 4, 2009, the Department published in the Federal Register the preliminary results of the NSRs of the antidumping duty order on fresh garlic from the PRC. See Preliminary Results. Since the Preliminary Results, the following events have occurred. Hejia filed surrogate value (SV) information for its single–clove garlic on May 19, 2009. On May 22, 2009, we extended the deadline for all interested parties to submit publicly available information to value factors of production until June 9, 2009. Chenglong and Tianheng filed SV information on June 9, 2009. On June 19, 2009, Fresh Garlic Producers Association (FGPA) and its individual members (Christopher Ranch L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company, Inc.) (collectively, Petitioners), filed factual information intended to rebut SV information filed by Chenglong and Tianheng. On May 27, 2009, the Department issued a supplemental questionnaire to Shandong Zhengyang with a due date of June 10, 2009. On June 4, 2009, counsel for Zhengyang notified the Department that it was withdrawing its representation of the company and advised the Department to contact Zhengyang directly. On June 12, 2009, the Department sent a letter to Zhengyang stating that we had not received its supplemental questionnaire response and that we had canceled verification. Zhengyang did not respond to the Department’s letter. On May 27, 2009, the Department sent a supplemental questionnaire to Hejia. The Department received Hejia’s timely response on June 2, 2009. On June 2, 2009, the Department was notified by Juye that it was withdrawing from the NSR. On June 4, 2009, we extended the time limit for the completion of the final results of these reviews. See Fresh Garlic From the People’s Republic of China: Extension of Time Limit for the Final Results of New Shipper Reviews, 74 FR 26839 (June 4, 2009). The Department conducted verification of the NSR respondents Chenglong, Hejia, and Yuanxiang from June 22, 2009 through June 30, 2009. On PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 July 30 and 31, 2009, the Department issued its verification reports. On July 30, 2009, the Department preliminarily found Tianheng’s sale to be not bona fide. See Memorandum From Barbara E. Tillman, Office Director, Office 6, Re: Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of China (‘‘PRC’’): Amended Intent to Preliminarily Rescind Jinxiang Tianheng Trade Co.’s New Shipper Review, July 30, 2009 (Amended Memorandum). We continue to find Tianheng’s sale to be not bona fide for these final results. In response to requests filed by Petitioners and the NSR respondents, the Department extended the due date for case briefs until August 17, 2009. The Department received timely filed case briefs from Petitioners, Hejia, Yuanxiang, Chenglong, and Tianheng. On August 21, 2009, the Department advised Hejia and Tianheng that each company’s brief contained new factual information and instructed both Hejia and Tianheng to re–file their case briefs. Hejia and Tianheng complied with the Department’s request and re–filed their case briefs on August 28, 2009 and September 9, 2009, respectively. In response to requests filed by Petitioners and the NSR respondents, the Department extended the deadline for rebuttal briefs to August 24, 2009, for arguments regarding everything except Hejia–related issues, and to August 28, 2009, for Hejia–specific matters. The Department received timely filed rebuttal briefs from all interested parties on August 24 and 28, 2009. Scope of the Order The products covered by this Order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay. The scope of this order does not include the following: (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non–fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed. The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, E:\FR\FM\02OCN1.SGM 02OCN1 Federal Register / Vol. 74, No. 190 / Friday, October 2, 2009 / Notices 0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. In order to be excluded from the Order, garlic entered under the HTSUS subheadings listed above that is (1) mechanically harvested and primarily, but not exclusively, destined for non–fresh use or (2) specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed must be accompanied by declarations to CBP to that effect. Analysis of Comments Received Issues raised in the case and rebuttal briefs by parties to this proceeding and to which we have responded are listed in Appendix 1 to this notice and addressed in the Memorandum from John Anderson, Acting Deputy Assistant Secretary for Import Administration Re: Fresh Garlic from the People’s Republic of China: Issues and Decision Memorandum for the Final Results of the New Shipper Reviews and Rescission, In Part, of the New Shipper Reviews (Issues and Decision Memorandum), September 24, 2009, which is hereby adopted by this notice.2 Parties can find a complete discussion of the issues raised in these NSRs and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit (CRU), Room 1117 of the main Department building. In addition, a copy of the Issues and Decision Memorandum can be accessed directly on our website at http://ia.ita.doc.gov/. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content. pwalker on DSK8KYBLC1PROD with NOTICES Final Rescission of Zhengyang’s and Juye’s New Shipper Reviews Subsequent to our Preliminary Results, Zhengyang and Juye each ceased participation in its respective new shipper review. Specifically, Zhengyang did not respond to the Department’s May 27, 2009 2 In addition, due to the proprietary nature of much of the information involved in companyspecific discussions, the Department has found it necessary to address certain issues in separate memoranda. See Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of China (PRC): Jinxiang Hejia Co., Ltd (Hejia) (Hejia Final Bona Fides Memorandum) and Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Fresh Garlic from the People’s Republic of China (PRC): Weifang Chenglong Import and Export Co. Ltd. (Chenglong) (Chenglong Final Bona Fides Memorandum). VerDate Nov<24>2008 16:40 Oct 01, 2009 Jkt 220001 supplemental questionnaire and Juye withdrew from its new shipper review on June 4, 2009. By not fully participating in its new shipper review, each company has failed to establish that it qualified for a separate rate. To establish whether a company operating in a non–market economy (NME) is sufficiently independent from the Government to be eligible for a separate rate, the Department analyzes each exporting entity under the test established in the Final Determination of Sales at Less Than Fair Value: Sparklers From the People’s Republic of China, 56 FR 20588 (May 6, 1991), as amplified by the Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People’s Republic of China, 59 FR 22585 (May 2, 1994). Under the separate rates criteria, the Department assigns separate rates in NME cases only if the respondent can demonstrate the absence of both de jure and de facto governmental control over export activities. We note that by failing to fully participate in their new shipper reviews, Zhengyang and Juye did not demonstrate that they are free of government control and, therefore, are not eligible to receive a separate rate, and as part of the NME–entity are not eligible for a new shipper review. As such, the Department rescinds the new shipper reviews of Zhengyang and Juye. Bona Fides Analyses For Chenglong, Tianheng, Yuanxiang and Hejia; and Final Rescission of New Shipper Reviews with Respect to Chenglong and Tianheng While conducting a review, particularly a review where a company’s margin would be based on a single sale, the Department examines price, quantity, and other circumstances associated with the sale under review, and must determine if the sale was based on normal commercial considerations and presents an accurate representation of the company’s normal business practices. If the Department determines that the price was not based on normal commercial considerations or is atypical of the respondent’s normal business practices, including other sales of comparable merchandise, the sale may be considered non–bona fide. In the Preliminary Results, the Department preliminarily found that Chenglong’s, Hejia’s, and Yuanxiang’s single POR sales were made on a bona fide basis. However, as a result of our analyses of information found during the verification of these companies, as well as comments made by interested parties, the Department has determined that Chenglong’s POR transaction was PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 50953 not a bona fide sale. Finally, the Department continues to find Yuanxiang’s and Hejia’s sales to be bona fide for these final results. Chenglong: In the Preliminary Results, the Department noted that certain information on the record called into question the bona fides of Chenglong’s sale and that we would continue to examine all aspects of Chenglong’s POR sale. See Preliminary Results at 20455. After conducting verification of Chenglong and reviewing interested parties’ briefs, the Department has determined that Chenglong’s sale was not a bona fide transaction. See the Chenglong Final Bona Fides Memorandum for a more detailed discussion of the Department’s determination as well as the Issues and Decision Memorandum at Comment 2. Accordingly, the Department is rescinding this NSR with respect to Chenglong. Tianheng: On July 30, 2009, the Department preliminarily found Tianheng’s sale to be not bona fide. See Amended Memorandum. As noted in the ‘‘Background’’ section, both Petitioners and Tianheng submitted briefs and rebuttal briefs regarding the bona fides of Tianheng’s single sale. Based on our analysis of arguments made by the parties, the Department continues to find Tianheng’s sale to be not bona fide. See Issues and Decision Memorandum at Comment 3. Therefore, we are rescinding the NSR with respect to Tianheng for these final results. Yuanxiang: In the Preliminary Results, the Department preliminarily concluded that the single sale made by Yuanxiang was a bona fide commercial transaction. Petitioners and Yuanxiang have submitted arguments as to whether the Department should rescind Yuanxiang’s NSR in these final results. See the Yuanxiang Final Bona Fides Memorandum for a more detailed discussion of the Department’s determination as well as the Issues and Decision Memorandum at Comment 4. Based on the totality of the circumstances as discussed in the Issues and Decision Memorandum addressing Yuanxiang’s bona fides issues, for these final results, the Department continues to find that Yuanxiang’s sale was bona fide. See id. Hejia: In the Preliminary Results, the Department noted that certain information on the record called into question the bona fides of Hejia’s POR sale and that we would continue to examine all aspects of Hejia’s sale. See Preliminary Results at 20455. After conducting verification of Hejia and reviewing interested parties’ briefs, the Department has determined that Hejia’s E:\FR\FM\02OCN1.SGM 02OCN1 50954 Federal Register / Vol. 74, No. 190 / Friday, October 2, 2009 / Notices sale was a bona fide transaction. See the Hejia Final Bona Fides Memorandum for a more detailed discussion of the Department’s determination as well as the Issues and Decision Memorandum at Comment 1. Based on the totality of the circumstances as discussed in the Issues and Decision Memorandum addressing Hejia’s bona fides issues, for these final results, the Department continues to find that Hejia’s sale was bona fide. See id. pwalker on DSK8KYBLC1PROD with NOTICES Changes Since the Preliminary Results Based on our analysis of information on the record of these reviews, and comments received from the interested parties, we have made changes to the financial ratios used to value overhead expenses, selling expenses, general expenses, and profits for the respondents. In these final results, for Yuanxiang, we are calculating surrogate financial ratios using a simple average of financial data from four Indian processors of tea, coffee, and rice. Using an average of these four companies’ data allows us to calculate financial ratios that better reflect the broader experience of the surrogate industry. See Issues and Decision Memorandum at Comment 7 and Final Surrogate Values Memorandum. Also, based on our findings at verification, the Department is adjusting Yuanxiang’s factors regarding packing for these final results. See Yuanxiang Verification Report at 3. The Department has also made changes to the valuation of Hejia’s single–clove garlic input. The specific changes, which includes business proprietary information, are addressed in the Memorandum from Nicholas Czajkowski, Case Analyst, Re: New Shipper Review of Fresh Garlic from the People’s Republic of China: Analysis for the Final Results of Jinxiang Hejia Co., Ltd. (Hejia). proceedings within five days of the date of publication of this notice. See 19 CFR 351.224(b). Assessment Rates Consistent with the final results of the 13th administrative review (AR) and NSRs of Fresh Garlic from the PRC, we will direct CBP to assess importer– specific assessment rates based on the resulting per–unit (i.e., per kilogram) amount on each entry of the subject merchandise during the POR. See Fresh Garlic from the People’s Republic of China: Final Results and Partial Rescission of the 13th Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR 29174, 29177 (June 19, 2009) (13th AR & NSRs of Fresh Garlic from the PRC). Therefore, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1). The Department will issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of this review. For assessment purposes, we calculated importer–specific assessment rates for fresh garlic from the PRC. Specifically, we divided the total dumping margins for each importer by the total quantity of subject merchandise sold to that importer during the POR to calculate a per–unit assessment amount. We will direct CBP to assess importer–specific assessment rates based on the resulting per–unit (i.e., per kilogram) amount on each entry of the subject merchandise during the POR if any importer–specific assessment rate calculated in the final results of this review is above de minimis. Cash Deposit Requirements Consistent with the final results of the 13th AR & NSRs of Fresh Garlic from FINAL RESULTS OF NEW SHIPPER the PRC, we will collect a per kilogram REVIEWS cash–deposit amount which will be the As a result of our reviews, we per–unit equivalent of the company– determine that the following margins specific dumping margin published in exist for the periods November 1, 2007 the final results of these reviews. The through April 30, 2008 and November 1, following cash deposit requirements 2007 through June 9, 2008: will be effective upon publication of the final results of these reviews for all FRESH GARLIC FROM THE PRC 2007– shipments of the subject merchandise entered, or withdrawn from warehouse, 2008 NEW SHIPPER REVIEWS for consumption on or after the publication date of the final results, as Exported and Produced by Chengwu County Yuanxiang Inprovided by section 751(a)(1) of the Act: dustry & Commerce, Ltd. .......... 115.29 (1) for subject merchandise produced Exported and Produced by and exported by Yuanxiang the cash Jinxiang Hejia Co., Ltd. ............. 15.37 deposit rate will be the per–unit rate determined in the final results of the Disclosure new shipper review; (2) for subject We will disclose the calculations used merchandise exported by Yuanxiang but in our analysis to parties to these not produced by Yuanxiang, the cash VerDate Nov<24>2008 16:40 Oct 01, 2009 Jkt 220001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 deposit rate continues to be the per–unit PRC–wide rate; (3) for subject merchandise produced and exported by Hejia the cash deposit rate will be the per–unit rate determined in the final results of the new shipper review; (4) for subject merchandise exported by Hejia but not produced by Hejia, the cash deposit rate continues to be the per–unit PRC–wide rate; and (5) for subject merchandise produced or exported by Tianheng, Zhengyang, Chenglong, and Juye, the cash deposit rates continues to be the per–unit PRC–wide rate. These requirements, when imposed, shall remain in effect until further notice. Notification to Importers This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. Administrative Protective Orders This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. These new shipper reviews and notice are issued and published in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR and 351.214. Dated: September 24, 2009. Ronald K. Lorentzen, Acting Assistant Secretary for Import Administration. Appendix I Comment 1: Whether Hejia’s Sale is Bona Fide Comment 2: Whether Chenglong’s Sale is Bona Fide Comment 3: Whether Tianheng’s Sale is Bona Fide Comment 4: Whether Yuanxiang’s Sale is Bona Fide Comment 5: Surrogate Value of Single– Clove Garlic E:\FR\FM\02OCN1.SGM 02OCN1 Federal Register / Vol. 74, No. 190 / Friday, October 2, 2009 / Notices pwalker on DSK8KYBLC1PROD with NOTICES Comment 6: Calculation of Yield Loss Factor Comment 7: Financial Ratios Comment 8: Whether to Calculate Separate Financial Ratios for Whole Garlic and Peeled Garlic of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Non– Frozen Apple Juice Concentrate from the People’s Republic of China, 65 FR 35606 (June 5, 2000) (‘‘Order’’). On June 30, 2009, the Department published in [FR Doc. E9–23834 Filed 10–1–09; 8:45 am] the Federal Register the Preliminary BILLING CODE 3510–DS–S Results of this administrative review. On July 17, 2009, Itochu filed comments regarding the Department’s Preliminary DEPARTMENT OF COMMERCE Results. On July 22, 2009, The International Trade Administration Department subsequently rejected these comments as they contained an [A–570–855] untimely submission of new factual information. See Memorandum to the Non–Frozen Apple Juice Concentrate File, from Alexis Polovina, Case from the People’s Republic of China: Analyst, Office 9, through Alex Final Results for the Administrative Villanueva, Program Manager, Office 9, Review regarding ‘‘Administrative Review of AGENCY: Import Administration, Apple Juice Concentrate from the International Trade Administration, People’s Republic of China: Rejection of Department of Commerce. New Information’’ dated July 22, 2009 SUMMARY: The Department is conducting (‘‘Rejection of New Information’’). As an administrative review of this Order, the deadline to submit case briefs was covering the period of review (‘‘POR’’) July 30, 2009, the Department allowed of June 1, 2007, - May 31, 2008. The Itochu to resubmit their case brief. Department preliminarily found that Itochu submitted a revised case brief on Itochu Corporation and its wholly– July 30, 2009. No other party filed owned subsidiaries, Yitian Juice comments and no party requested a (Shaanxi) Co., Ltd. and Laiyang Yitian public hearing. Juice Co., Ltd., (collectively known as SCOPE OF THE ORDER ‘‘Itochu’’) did not sell the subject The product covered by this order is merchandise at less than normal value (‘‘NV’’) and thus assigned a zero margin certain non–frozen apple juice concentrate. Apple juice concentrate is for the POR. See Non–Frozen Apple defined as all non–frozen concentrated Juice Concentrate from the People’s apple juice with a brix scale of 40 or Republic of China: Preliminary Results greater, whether or not containing for the Administrative Review, 74 FR added sugar or other sweetening matter, 31238 (June 30, 2009) (‘‘Preliminary and whether or not fortified with Results’’). Based upon our analysis of vitamins or minerals. Excluded from the comments received, the Department scope of this order are: frozen made no changes to the margin concentrated apple juice; non–frozen calculations in the final results. concentrated apple juice that has been Therefore, we will instruct the U.S. Customs and Border Protection (‘‘CBP’’) fermented; and non–frozen apple juice to which spirits have been added. to assess antidumping duties on entries The merchandise subject to this order of subject merchandise during the POR is classified in the Harmonized Tariff for which the importer–specific Schedule of the United States assessment rates are above de minimis. (‘‘HTSUS’’) at subheadings EFFECTIVE DATE: October 2, 2009. 2106.90.52.00, and 2009.70.00.20 before FOR FURTHER INFORMATION CONTACT: January 1, 2002, and 2009.79.00.20 after Alexis Polovina, AD/CVD Operations, January 1, 2002. Although the HTSUS Office 9, Import Administration, subheadings are provided for International Trade Administration, convenience and customs purposes, the U.S. Department of Commerce, 14th written description of the scope of the Street and Constitution Ave, NW, order is dispositive. Washington DC 20230; telephone (202) ANALYSIS OF COMMENTS RECEIVED 482–3927. All issues raised in the comments by SUPPLEMENTARY INFORMATION: Itochu are addressed in the concurrent CASE HISTORY Issues and Decision Memorandum (‘‘Issues and Decision Memo’’), which is On June 5, 2000, the Department of Commerce (‘‘Department’’) published in hereby adopted by this notice. A list of the issues which Itochu raised and to the Federal Register the antidumping which we respond in the Issues and duty order on certain non–frozen apple Decision Memo is attached to this notice juice concentrate from the People’s as an Appendix. The Issues and Republic of China (‘‘PRC’’). See Notice VerDate Nov<24>2008 16:40 Oct 01, 2009 Jkt 220001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 50955 Decision Memo is a public document and is on file in the Central Records Unit (‘‘CRU’’), Main Commerce Building, Room 1117, and is accessible on the Web at http://www.trade.gov/ia. The paper copy and the electronic version of the memorandum are identical in content. FINAL RESULTS OF THE REVIEW The Department has determined that the final dumping margin for the POR is: NON–FROZEN APPLE JUICE CONCENTRATE FROM THE PRC Exporter Itochu Corporation ........ Weighted–Average Margin (Percent) 0.00 ASSESSMENT RATES Upon issuance of the final results, the Department will determine, and the CBP shall assess, antidumping duties on all appropriate entries on an ad valorem basis. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer–specific (or customer) duty assessment rates based on the ratio of the total amount of dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer–specific assessment rate calculated in the final results of this review is above de minimis, i.e., less than 0.50 percent. CASH–DEPOSIT REQUIREMENTS The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of subject merchandise from Itochu entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Tariff Act of 1930, as amended (‘‘Act’’):(1) For subject merchandise exported by Itochu, no deposit will be required; (2) for companies previously found to be entitled to a separate rate in prior segments of the proceeding, and for which no review has been requested, the cash deposit rate will continue to be the rate established in the most recent review of that company; (3) for all other PRC exporters, the cash deposit rate will be 51.74 percent, the PRC country–wide ad–valorem rate; and (4) for non–PRC exporters of subject merchandise from E:\FR\FM\02OCN1.SGM 02OCN1

Agencies

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


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic from the People's Republic of China: Final Results 
and Final Rescission, In Part, of New Shipper Reviews

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

    \1\ We extended the end of the period of review (POR) from April 
30, 2007 to June 9, 2008, to capture entries for three respondents. 
See the ``Expansion of the POR'' section in the Preliminary Results.

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EFFECTIVE DATE: October 2, 2009.

FOR FURTHER INFORMATION CONTACT: Toni Page, Scott Lindsay, or Summer 
Avery, AD/CVD Operations, Office 6, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 
(202) 482-1398, (202) 482-0780, or (202) 482-4052, respectively.

SUPPLEMENTARY INFORMATION:

Background

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

Scope of the Order

    The products covered by this Order are all grades of garlic, whole 
or separated into constituent cloves, whether or not peeled, fresh, 
chilled, frozen, provisionally preserved, or packed in water or other 
neutral substance, but not prepared or preserved by the addition of 
other ingredients or heat processing. The differences between grades 
are based on color, size, sheathing, and level of decay. The scope of 
this order does not include the following: (a) garlic that has been 
mechanically harvested and that is primarily, but not exclusively, 
destined for non-fresh use; or (b) garlic that has been specially 
prepared and cultivated prior to planting and then harvested and 
otherwise prepared for use as seed. The subject merchandise is used 
principally as a food product and for seasoning. The subject garlic is 
currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 
0703.20.0090,

[[Page 50953]]

0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 of the 
Harmonized Tariff Schedule of the United States (HTSUS). Although the 
HTSUS subheadings are provided for convenience and customs purposes, 
our written description of the scope of this order is dispositive. In 
order to be excluded from the Order, garlic entered under the HTSUS 
subheadings listed above that is (1) mechanically harvested and 
primarily, but not exclusively, destined for non-fresh use or (2) 
specially prepared and cultivated prior to planting and then harvested 
and otherwise prepared for use as seed must be accompanied by 
declarations to CBP to that effect.

Analysis of Comments Received

    Issues raised in the case and rebuttal briefs by parties to this 
proceeding and to which we have responded are listed in Appendix 1 to 
this notice and addressed in the Memorandum from John Anderson, Acting 
Deputy Assistant Secretary for Import Administration Re: Fresh Garlic 
from the People's Republic of China: Issues and Decision Memorandum for 
the Final Results of the New Shipper Reviews and Rescission, In Part, 
of the New Shipper Reviews (Issues and Decision Memorandum), September 
24, 2009, which is hereby adopted by this notice.\2\ Parties can find a 
complete discussion of the issues raised in these NSRs and the 
corresponding recommendations in this public memorandum, which is on 
file in the Central Records Unit (CRU), Room 1117 of the main 
Department building. In addition, a copy of the Issues and Decision 
Memorandum can be accessed directly on our website at http://ia.ita.doc.gov/. The paper copy and electronic version of the Issues 
and Decision Memorandum are identical in content.
---------------------------------------------------------------------------

    \2\ In addition, due to the proprietary nature of much of the 
information involved in company-specific discussions, the Department 
has found it necessary to address certain issues in separate 
memoranda. See Bona Fide Nature of the Sale in the Antidumping Duty 
New Shipper Review of Fresh Garlic from the People's Republic of 
China (PRC): Jinxiang Hejia Co., Ltd (Hejia) (Hejia Final Bona Fides 
Memorandum) and Bona Fide Nature of the Sale in the Antidumping Duty 
New Shipper Review of Fresh Garlic from the People's Republic of 
China (PRC): Weifang Chenglong Import and Export Co. Ltd. 
(Chenglong) (Chenglong Final Bona Fides Memorandum).
---------------------------------------------------------------------------

Final Rescission of Zhengyang's and Juye's New Shipper Reviews

    Subsequent to our Preliminary Results, Zhengyang and Juye each 
ceased participation in its respective new shipper review. 
Specifically, Zhengyang did not respond to the Department's May 27, 
2009 supplemental questionnaire and Juye withdrew from its new shipper 
review on June 4, 2009. By not fully participating in its new shipper 
review, each company has failed to establish that it qualified for a 
separate rate.
    To establish whether a company operating in a non-market economy 
(NME) is sufficiently independent from the Government to be eligible 
for a separate rate, the Department analyzes each exporting entity 
under the test established in the Final Determination of Sales at Less 
Than Fair Value: Sparklers From the People's Republic of China, 56 FR 
20588 (May 6, 1991), as amplified by the Notice of Final Determination 
of Sales at Less Than Fair Value: Silicon Carbide from the People's 
Republic of China, 59 FR 22585 (May 2, 1994). Under the separate rates 
criteria, the Department assigns separate rates in NME cases only if 
the respondent can demonstrate the absence of both de jure and de facto 
governmental control over export activities. We note that by failing to 
fully participate in their new shipper reviews, Zhengyang and Juye did 
not demonstrate that they are free of government control and, 
therefore, are not eligible to receive a separate rate, and as part of 
the NME-entity are not eligible for a new shipper review. As such, the 
Department rescinds the new shipper reviews of Zhengyang and Juye.

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

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

[[Page 50954]]

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

Changes Since the Preliminary Results

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

FINAL RESULTS OF NEW SHIPPER REVIEWS

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

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

Disclosure

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

Assessment Rates

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

Cash Deposit Requirements

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

Notification to Importers

    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.

Administrative Protective Orders

    This notice also serves as a reminder to parties subject to 
administrative protective orders (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305, which continues 
to govern business proprietary information in this segment of the 
proceeding. Timely written notification of the return/destruction of 
APO materials or conversion to judicial protective order is hereby 
requested. Failure to comply with the regulations and terms of an APO 
is a violation which is subject to sanction.
    These new shipper reviews and notice are issued and published in 
accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 
and 351.214.

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

Appendix I

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

[[Page 50955]]

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