Garlic From the People's Republic of China: Rescission of Antidumping Duty New Shipper Reviews, 19322-19325 [2011-8323]
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Federal Register / Vol. 76, No. 67 / Thursday, April 7, 2011 / Notices
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antidumping duties calculated for the
examined sales to the total entered
value of the 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. Pursuant to 19 CFR
351.106(c)(2), we will instruct CBP to
liquidate without regard to antidumping
duties any entries for which the
assessment rate is de minimis. See 19
CFR 351.106(c)(1). The final results of
this review shall be the basis for the
assessment of antidumping duties on
entries of merchandise covered by the
final results of this review and for future
deposits of estimated duties, where
applicable.
The Department clarified its
‘‘automatic assessment’’ regulation on
May 6, 2003. See Assessment Policy
Notice. This clarification will apply to
entries of subject merchandise during
the POR produced by companies
included in these final results of review
for which the reviewed companies did
not know that the merchandise they
sold to the intermediary (e.g., a reseller,
trading company, or exporter) was
destined for the United States. In such
instances, we will instruct CBP to
liquidate unreviewed entries at the allothers rate if there is no rate for the
intermediary involved in the
transaction. See Assessment Policy
Notice for a full discussion of this
clarification.
Cash Deposit Requirements
The following cash deposit
requirements will be effective for all
shipments of the subject merchandise
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of the final results of
this administrative review, as provided
by section 751(a)(2)(C) of the Act: (1)
The cash deposit rate for each specific
company listed above will be that
established in the final results of this
review, except if the rate is less than
0.50 percent and, therefore, de minimis
within the meaning of 19 CFR
351.106(c)(1), in which case the cash
deposit rate will be zero; (2) for
previously reviewed or investigated
companies not participating in this
review, the cash deposit rate will
continue to be the company-specific rate
published for the most recent period; (3)
if the exporter is not a firm covered in
this review, or the original less than fair
value (LTFV) investigation, but the
manufacturer is, the cash deposit rate
will be the rate established for the most
recent period for the manufacturer of
the merchandise; and (4) the cash
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deposit rate for all other manufacturers
or exporters of NFC, and for FCOJM
produced and/or exported by Cargill
Citrus Limitada and Coinbra-Frutesp
will continue to be 16.51 percent, the
all-others rate made effective by the
LTFV investigation. See OJ Order, 71 FR
at 12184. These deposit requirements,
when imposed, shall remain in effect
until further notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f) to file a certificate regarding
the reimbursement of antidumping
duties prior to liquidation of the
relevant entries during this review
period. Failure to comply with this
requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This administrative review and notice
are published in accordance with
sections 751(a)(1) and 777(i)(1) of the
Act and 19 CFR 351.221.
Dated: March 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–8324 Filed 4–6–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–831]
Garlic From the People’s Republic of
China: Rescission of Antidumping
Duty New Shipper Reviews
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On November 12, 2010, the
Department of Commerce (Department)
published preliminary results for the
new shipper reviews (NSRs) of fresh
garlic from the People’s Republic of
China (PRC) covering the period of
review (POR) November 1, 2008,
through October 31, 2009. See Fresh
Garlic From the People’s Republic of
China: Preliminary Results of New
Shipper Reviews and Preliminary
Rescission, in Part, 75 FR 69415
(November 12, 2010) (Preliminary
Results). The reviews covered three
respondents: Jinxiang Chengda Imp &
Exp Co., Ltd. (Chengda), Zhengzhou
Huachao Industrial Co., Ltd. (Huachao),
and Jinxiang Yuanxin Imp & Exp Co.,
Ltd. (Yuanxin).
AGENCY:
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As discussed below, we preliminarily
found that Yuanxin’s and Huachao’s
sales were bona fide and that these sales
were made in the United States at prices
below normal value (NV). In addition,
we found Chengda’s sales to be not bona
fide, and announced our preliminary
intent to rescind Chengda’s new shipper
review. For the final results of this
review, we are finding the sales of all
three respondents, Chengda, Huachao,
and Yuanxin, to be not bona fide.
Therefore, because there were no other
shipments or entries by these three
companies during the POR, we are
rescinding these new shipper reviews.
DATES: Effective Date: April 7, 2011.
FOR FURTHER INFORMATION CONTACT:
Scott Lindsay, AD/CVD Operations,
Office 6, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202)
482–0780.
SUPPLEMENTARY INFORMATION:
Background
Since the Preliminary Results, the
following events have occurred. On
December 2, 2010, surrogate value
information was placed on the record by
Huachao. On December 30, 2010, the
Department extended the time limit for
the final results of this new shipper
review. On January 26, 2011, the
Department issued a supplemental
questionnaire to Yuanxin. On January
27, 2011, the Department issued a
supplemental questionnaire to Huachao.
On February 4, 2011, the Department
issued a letter to Yuanxin concerning
the business proprietary designation of
the company’s Web site address.
On February 4, 2011, the Department
issued the briefing schedule for briefs
addressing all issues except the bona
fides of Huachao’s and Yuanxin’s
respective sales. On February 8, 2011,
Yuanxin requested an extension to the
deadlines as established in the February
4, 2011 briefing schedule. On February
9, 2011, the Department issued an
extension of this briefing schedule, with
briefs due February 17, 2011, and
rebuttal briefs due February 22, 2011.
On February 14, 2011, the Department
placed information related to Jinxiang
Hejia Co., Ltd.’s NSR sale to the United
States, from the 2007/2008 NSR, on the
record of this review. Huachao and
Yuanxin submitted supplemental
questionnaire responses on February 14,
2011. Yuanxin also submitted its case
brief on February 14, 2011. On February
15, 2011, the Department placed
memoranda on the record of this review
that included information related to
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Yuanxin’s domain name registration
and the corporate records of the
importers and customers of each of the
exporters involved in this review. On
February 17, 2011, Huachao and
Chengda submitted case briefs.
On February 18, 2011, the Department
issued the briefing schedule for briefs
addressing only the bona fides of
Huachao’s and Yuanxin’s respective
sales. Additionally, on February 18,
2011, the Fresh Garlic Producers
Association and its individual members
(Christopher Ranch L.L.C., the Garlic
Company, Valley Garlic, and Vessey and
Company, Inc.) (collectively,
Petitioners) requested an extension of
the February 22, 2011 deadline for
rebuttal briefs not related to the bona
fides of Huachao’s and Yuanxin’s
respective sales. On February 22, 2011,
the Department granted Petitioners’
February 18, 2011 request for an
extension to the rebuttal briefs deadline,
the new deadline becoming February
25, 2011. On February 24, 2011,
Petitioners submitted a rebuttal to
Huachao’s February 14, 2011
supplemental questionnaire response.
On February 25, 2011, Petitioners
submitted rebuttal briefs for all three
respondents. Also, on February 25,
2011, Petitioners submitted a brief
regarding whether Huachao’s POR sale
was bona fide.
On March 1, 2011, Huachao requested
an extension to the deadline of the bona
fides rebuttal briefs as established in the
Department’s February 18, 2011 briefing
schedule. On March 2, 2011, the
Department granted Huachao’s March 1,
2011 request for an extension, the new
deadline for bona fides rebuttal briefs
becoming March 7, 2011. On March 3,
2011, Huachao submitted a letter
requesting that the Department reject
Petitioners’ February 24, 2011
submission on the grounds that it
contained untimely new factual
information. Further, Huachao argued
that Petitioners’ February 25, 2011 case
brief also be rejected, as it relies upon
information contained in the February
24, 2011 submission. The information in
question involves the nature of the
United States garlic market and the
appropriate benchmark to be used in
determining the bona fide nature of
Huachao’s sale. The Department found
this information to be relevant to the
information provided by Huachao in its
supplemental response, which
addressed Department questions
regarding whether Huachao’s sale was
bona fide. Thus, the Department
concluded that Petitioners’ submission
was timely rebuttal information allowed
for under 19 CFR 351.301(c). Finally, on
March 7, 2011, Huachao submitted a
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rebuttal brief to the February 25, 2011
case brief submitted by Petitioners
regarding the bona fides of its sale.
On March 16, 2011, Department
officials met with Chengda’s counsel to
discuss issues related to the case briefs.
See Memorandum for the File from
Lingjun Wang, Case Analyst, AD/CVD
Operations, Office 6, ‘‘Meeting with
Counsel for the Jinxiang Chengda
Import & Export Co., Ltd.: New Shipper
Review of the Antidumping Duty Order
on Fresh Garlic from China’’ (March 16,
2011). On March 17, 2011, Department
officials met with Petitioners’ counsel to
discuss issues related to the case briefs.
See Memorandum for the File from
David Lindgren, Case Analyst, AD/CVD
Operations, Office 6, ‘‘Meeting with
Counsel for the Petitioners: New
Shipper Review of the Antidumping
Duty Order on Fresh Garlic from China’’
(March 17, 2011).
Scope of the Order
The products covered by the 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 the
order is dispositive. In order to be
excluded from the order, garlic entered
under the HTSUS subheadings listed
above that is (1) mechanically harvested
and primarily, but not exclusively,
destined for non-fresh use or (2)
specially prepared and cultivated prior
to planting and then harvested and
otherwise prepared for use as seed must
be accompanied by declarations to CBP
to that effect.
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Analyses of Comments Received
In addition to commenting on the
bona fides of Chengda’s and Huachao’s
U.S. sales (see Bona Fides Analysis
section below), the parties addressed, in
their case and rebuttal briefs, three
surrogate valuation issues: (1) What to
use as the surrogate value for raw garlic
bulbs; (2) which financial statements to
use as the surrogate financial ratios; and
(3) how to properly calculate the wage
rate. Since, as discussed below, we are
rescinding these reviews, the
Department need not address the
parties’ comments on these issues
pertaining to the calculation of the
dumping margin.
Bona Fides Analysis
In conducting an NSR, the
Department examines price, quantity,
and other circumstances associated with
the sale to determine if the sale was
based on normal commercial
considerations and presents an accurate
representation of the company’s normal
business practices, and provides a
future indicator of its future selling
practice. See Shandong Chenhe Int’l
Trading Co. v. United States, No. 08–
00373, slip op. at 19 (Ct. Int’l Trade
Nov. 22, 2010); see also Tianjin
Tiancheng Pharmaceutical Co., Ltd. v.
United States, 366 F. Supp. 2d 1246,
1250 (Ct. Int’l Trade 2005); and Hebei
New Donghua Amino Acid Co., Ltd. v.
United States, 374 F. Supp. 2d 1333,
1342 (Ct. Int’l Trade 2005). 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 not bona fide, and, as such,
cannot serve as a reasonable or reliable
basis for calculating a dumping margin.
In the Preliminary Results, the
Department found Chengda’s POR sales
to be not bona fide. The Department
found that Huachao’s POR sale,
however, was made on a bona fide basis,
noting that it would continue to
examine all factors relating to the bona
fides of that sale given the Department’s
concerns regarding the price, quantity,
and payment terms of the sale.
Likewise, the Department found that
Yuanxin’s POR sale was also made on
a bona fide basis, noting that it would
continue to examine the bona fides of
the sale given the Department’s
concerns regarding the price, quantity,
and atypicality of the product and
transaction. Based on our continuing
analyses of all aspects of the parties’
sales, summarized below, and our
analyses of supplemental questionnaire
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responses, of information and
documentation from a prior NSR placed
on the record of this review, and of
comments made by interested parties,
the Department continues to find that
Chengda’s sales are not bona fide, and
now finds that the sales of Yuanxin and
Huachao are not bona fide as well. As
such, the sales made by all three parties
do not provide reasonable or reliable
bases for calculating dumping margins.
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Chengda
For the Preliminary Results, the
Department analyzed the bona fides of
Chengda’s sales and preliminarily found
Chengda’s sales to the United States to
be not bona fide. 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 Chengda Imp & Exp Co.,
Ltd.’’ (November 1, 2010). Since the
Preliminary Results, both Chengda and
Petitioners have submitted arguments
regarding whether Chengda’s POR
shipment was bona fide. Significant
portions of these arguments involve
discussion of business proprietary
information (BPI). Therefore, the
Department’s summaries of, and
positions on, these arguments, in
addition to our full analysis of the bona
fides of Chengda’s sales, are included in
the memorandum, ‘‘Final Results of
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China: Bona Fides
Analysis of Chengda Imp & Exp Co.,
Ltd.,’’ issued concurrently with this
Federal Register notice. Based on the
Department’s complete analysis of all
the information on the record of this
review regarding the bona fides of
Chengda’s NSR sales, the Department
continues to find Chengda’s sales not
bona fide because (1) Chengda’s sale
prices are so high that they are atypical,
aberrational, commercially
unreasonable, and not indicative of
future sales, and (2) Chengda’s sales
quantities are too small to reflect normal
commercial practices of the garlic
industry.
Huachao
For the Preliminary Results, the
Department analyzed the bona fides of
Huachao’s sale and preliminarily found
Huachao’s sale to the United States to be
bona fide, noting that we would
continue to examine all factors relating
to the bona fides of that sale given the
Department’s concerns regarding the
price, quantity, and payment terms of
the sale. 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):
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Zhengzhou Huachao Industrial Co.,
Ltd.’’ (November 1, 2010). After the
Preliminary Results, the Department
issued a supplemental questionnaire to
Huachao. In addition, Petitioners filed a
case brief and Huachao filed a rebuttal
brief on whether Huachao’s sale should
be considered bona fide. Significant
portions of these arguments involve
discussion of BPI. Therefore, the
Department’s summaries of, and
positions on, these arguments, in
addition to our full analysis of the bona
fides of Huachao’s sale, are included in
the memorandum ‘‘Final Results of
Antidumping Duty New Shipper
Review of Fresh Garlic from the
People’s Republic of China: Bona Fides
Analysis of Zhengzhou Huachao
Industrial Co., Ltd.,’’ issued
concurrently with this Federal Register
notice. Based on the Department’s
complete analysis of all the information
on the record of this review regarding
the bona fides of Huachao’s NSR sale,
the Department finds Huachao’s sale to
be not bona fide because (1) Huachao’s
sale price is so high as to be
commercially unreasonable and not
indicative of the garlic industry, (2)
Huachao’s sales quantity is not
commercially reasonable, (3) Huachao’s
function as the processor of its U.S. sale
is atypical of its normal business
practice, and (4) there are
inconsistencies in the information
provided by Huachao’s customer in the
United States, raising doubts about
Huachao’s description of the sale’s
structure.
Yuanxin
In the Preliminary Results, the
Department found that Yuanxin’s POR
sale was made on a bona fide basis,
noting that it would continue to
examine the bona fides of the sale given
the Department’s concerns regarding the
price, quantity, and atypical nature of
the product and transaction. 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 Yuanxin Imp & Exp Co., Ltd.’’
(November 1, 2010). As noted in the
background section, after the
Preliminary Results, the Department
issued a supplemental questionnaire to
Yuanxin. In addition, new information
with respect to the bona fides of
Yuanxin’s sale was placed on the record
of this review. See the Department’s
February 14, 2011 memorandum to the
file regarding Jinxiang Hejia Co., Ltd.’s
NSR and Yuanxin’s February 14, 2011
supplemental questionnaire response;
see also the Department’s February 15,
2011 memorandum to the file regarding
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Yuanxin’s domain name registration
and the Department’s February 15, 2011
memorandum to the file regarding the
corporate records of the importers and
customers of each of the exporters
involved in this review.
Significant portions of the issues
involved in Yuanxin’s bona fides
include BPI. Therefore, we have
addressed all of the arguments in a
separate memorandum as part of our
full bona fides analysis. See ‘‘Final
Results of Antidumping Duty New
Shipper Review of Fresh Garlic from the
People’s Republic of China: Bona Fides
Analysis of Jinxiang Yuanxin Imp & Exp
Co., Ltd.,’’ issued concurrently with this
Federal Register notice. Based on the
Department’s complete analysis of all
the information on the record of this
review regarding the bona fides of
Yuanxin’s NSR sale, the Department
finds Yuanxin’s sale to be not bona fide
because (1) Yuanxin’s sale price is so
high as to be commercially
unreasonable and not indicative of
future sales, (2) Yuanxin’s sales quantity
is not representative of the garlic
industry, and (3) the structure of
Yuanxin’s U.S. sale is of an unusual
nature.
Rescission of New Shipper Reviews
For the foregoing reasons, the
Department finds that the sales of all
three new shippers are not bona fide
and that these sales do not provide a
reasonable or reliable basis for
calculating a dumping margin. Because
these non-bona fide sales were the only
sales of subject merchandise during the
POR, the Department is rescinding all
three new shipper reviews in their
entirety.
Notification to Importers
The Department will notify U.S.
Customs and Border Protection that
bonding is no longer permitted to fulfill
security requirements for shipments by
Chengda, Huachao, and Yuanxin of
fresh garlic from the PRC entered, or
withdrawn from warehouse, for
consumption in the United States on or
after the publication of this rescission
notice in the Federal Register, and that
a cash deposit of $4.71 per kilogram
should be collected for all shipments of
the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date of this notice, as provided for by
section 751(a)(2)(C) of the Act, by
Chengda, Huachao, and Yuanxin.
This notice is the only reminder to
parties subject to the administrative
protective order (APO) of their
responsibility concerning the return or
destruction of proprietary information
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disclosed under the APO in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return or
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and the terms of an
APO is a sanctionable violation.
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 351.214.
Dated: March 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–8323 Filed 4–6–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–934]
1-Hydroxyethylidene-1, 1Diphosphonic Acid From the People’s
Republic of China: Preliminary Results
of Antidumping Duty Administrative
Review and Intent To Rescind Review
in Part
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to a timely
request from Compass Chemical
International LLC (‘‘Petitioner’’), the
Department of Commerce
(‘‘Department’’) is conducting an
administrative review of the
antidumping duty order on 1hydroxyethylidene-1, 1-diphosphonic
acid (‘‘HEDP’’) from the People’s
Republic of China (‘‘PRC’’). The period
of review (‘‘POR’’) is April 23, 2009,
through March 31, 2010. This
administrative review covers two
exporters of the subject merchandise
that are being individually examined as
mandatory respondents.
The Department has preliminarily
determined that one mandatory
respondent, Jiangsu Jianghai Chemical
Group Co., Ltd. (‘‘Jiangsu Jianghai’’), did
not demonstrate that it is entitled to a
separate rate. Therefore, the Department
has treated Jiangsu Jianghai as part of
the PRC-wide entity. The other
mandatory respondent, Changzhou
Wujin Fine Chemical Factory Co., Ltd.
(‘‘Wujin Fine’’), reported that it did not
ship subject merchandise to the United
States during the POR. Because record
evidence does not contradict Wujin
Fine’s no-shipment claim, the
Department intends to rescind the
administrative review with respect to
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this company. If these preliminary
results are adopted in the final results
of review, the Department will instruct
U.S. Customs and Border Protection
(‘‘CBP’’) to assess antidumping duties on
entries of subject merchandise during
the POR for which the importer-specific
assessment rates are above de minimis.
Interested parties are invited to
comment on these preliminary results.
Parties that submit comments are
requested to submit with each argument
a statement of the issue and a brief
summary of the argument. The
Department intends to issue the final
results of this review no later than 120
days from the date of publication of this
notice.
DATES: Effective Date: April 7, 2011.
FOR FURTHER INFORMATION CONTACT:
Shawn Higgins, AD/CVD Operations,
Office 4, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202)
482–0679.
SUPPLEMENTARY INFORMATION:
Background
On April 28, 2009, the Department
published the antidumping duty order
on HEDP from the PRC in the Federal
Register.1 On April 1, 2010, the
Department notified interested parties of
their opportunity to request an
administrative review of the
antidumping duty order on HEDP from
the PRC.2 On April 30, 2010, Petitioner
requested that the Department conduct
an administrative review of Jiangsu
Jianghai and Wujin Fine.3 On May 28,
2010, the Department published a notice
initiating an antidumping duty
administrative review of the Order
covering Jiangsu Jianghai and Wujin
Fine during the period April 23, 2009,
through March 31, 2010.4
The Initiation Notice notified parties
that they must submit timely separate
rate applications or separate rate
certifications in order to qualify for a
separate rate.5 The Department did not
1 See 1-Hydroxyethylidene-1, 1-Diphosphonic
Acid from India and the People’s Republic of
China: Antidumping Duty Orders, 74 FR 19197
(April 28, 2009) (‘‘Order’’).
2 See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation; Opportunity
To Request Administrative Review, 75 FR 16426
(April 1, 2010).
3 See Letter from Petitioner to the Secretary of
Commerce, ‘‘1-Hydroxyethylidene-1, 1Diphosphonic Acid (HEDP) from The People’s
Republic of China (PRC): Request for
Administrative Review’’ (April 30, 2010).
4 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 75 FR
29976 (May 28, 2010) (‘‘Initiation Notice’’).
5 Id., 75 FR at 29976–77.
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19325
receive any separate rate applications or
separate rate certifications.
On June 7, 2010, the Department
issued antidumping questionnaires to
Jiangsu Jianghai and Wujin Fine.6 In
June and July 2010, Jiangsu Jianghai and
Wujin Fine submitted letters certifying
that they did not ship subject
merchandise to the United States during
the POR.7 From July through September
2010, the Department requested and
received import data and entry
documentation from CBP. The
Department placed this information on
the record of this review and solicited
comments from interested parties.8
Petitioner, Jiangsu Jianghai, and Wujin
Fine submitted comments on this
import data and entry documentation in
August and October 2010.9 On October
25, 2010, the Department informed
Jiangsu Jianghai that record CBP data
6 See, e.g., Letter from Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, to Jiangsu
Jianghai, ‘‘1-Hydroxyethylidene-1, 1-Diphosphonic
Acid from the People’s Republic of China:
Antidumping Duty Administrative Review of
Jiangsu Jianghai Chemical Group Co., Ltd.’’ (June 7,
2010) (‘‘antidumping questionnaire’’).
7 See Letter from Jiangsu Jianghai to the Secretary
of Commerce, ‘‘1-Hydroxyethylidene-1, 1Diphosphonic Acid from the Republic of India and
the People’s Republic of China; A–570–934; Copy
of Certification of No Shipments by Jiangsu Jianghai
Chemical Group Co., Ltd.’’ (July 13, 2010); Letter
from Wujin Fine to the Secretary of Commerce, ‘‘1Hydroxyethylidene-1, 1-Diphosphonic Acid from
the Republic of India and the People’s Republic of
China; A–570–934; Notification by Changzhou
Wujin Fine Chemical Factory Co., Ltd.’’ (June 28,
2010).
8 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to Interested Parties, ‘‘2009–
2010 Administrative Review of 1Hydroxyethylidene-1, 1-Diphosphonic Acid from
the People’s Republic of China; Placing CBP Data
and Entry Documents on the Record’’ (August 13,
2010); Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to Interested Parties, ‘‘2009–
2010 Administrative Review of 1Hydroxyethylidene-1, 1-Diphosphonic Acid from
the People’s Republic of China; Placing CBP Data
and Entry Documents on the Record’’ (September
24, 2010) (‘‘CBP Data and Entry Documents’’).
9 See Letter from Jiangsu Jianghai to the Secretary
of Commerce, ‘‘1-Hydroxyethyidene-1, 1Diphosphonic Acid from the Republic of India and
the People’s Republic of China; A–570–934;
Comments on Customs and Border Protection Data
by Jiangsu Jianghai Chemical Group Co., Ltd.’’
(August 19, 2010); Letter from Wujin Fine to the
Secretary of Commerce, ‘‘1-Hydroxyethyidene-1, 1Diphosphonic Acid from the Republic of India and
the People’s Republic of China; A–570–934;
Comments on Customs and Border Protection Data
by Changzhou Wujin Fine Chemical Factory Co.,
Ltd.’’ (August 19, 2010); Letter from Jiangsu Jianghai
to the Secretary of Commerce, ‘‘1Hydroxyethyidene-1, 1-Diphosphonic Acid from
the Republic of India and the People’s Republic of
China; A–570–934; Comments on Customs and
Border Protection Data by Jiangsu Jianghai
Chemical Group Co., Ltd.’’ (October 4, 2010); Letter
from Petitioner to the Secretary of Commerce, ‘‘1Hydroxyethidene-1, 1-Diphosphonic Acid from the
People’s Republic of China’’ (October 4, 2010).
E:\FR\FM\07APN1.SGM
07APN1
]]>Agencies
[Federal Register Volume 76, Number 67 (Thursday, April 7, 2011)]
[Notices]
[Pages 19322-19325]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-8323]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Garlic From the People's Republic of China: Rescission of
Antidumping Duty New Shipper Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On November 12, 2010, the Department of Commerce (Department)
published preliminary results for the new shipper reviews (NSRs) of
fresh garlic from the People's Republic of China (PRC) covering the
period of review (POR) November 1, 2008, through October 31, 2009. See
Fresh Garlic From the People's Republic of China: Preliminary Results
of New Shipper Reviews and Preliminary Rescission, in Part, 75 FR 69415
(November 12, 2010) (Preliminary Results). The reviews covered three
respondents: Jinxiang Chengda Imp & Exp Co., Ltd. (Chengda), Zhengzhou
Huachao Industrial Co., Ltd. (Huachao), and Jinxiang Yuanxin Imp & Exp
Co., Ltd. (Yuanxin).
As discussed below, we preliminarily found that Yuanxin's and
Huachao's sales were bona fide and that these sales were made in the
United States at prices below normal value (NV). In addition, we found
Chengda's sales to be not bona fide, and announced our preliminary
intent to rescind Chengda's new shipper review. For the final results
of this review, we are finding the sales of all three respondents,
Chengda, Huachao, and Yuanxin, to be not bona fide. Therefore, because
there were no other shipments or entries by these three companies
during the POR, we are rescinding these new shipper reviews.
DATES: Effective Date: April 7, 2011.
FOR FURTHER INFORMATION CONTACT: Scott Lindsay, AD/CVD Operations,
Office 6, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202) 482-0780.
SUPPLEMENTARY INFORMATION:
Background
Since the Preliminary Results, the following events have occurred.
On December 2, 2010, surrogate value information was placed on the
record by Huachao. On December 30, 2010, the Department extended the
time limit for the final results of this new shipper review. On January
26, 2011, the Department issued a supplemental questionnaire to
Yuanxin. On January 27, 2011, the Department issued a supplemental
questionnaire to Huachao. On February 4, 2011, the Department issued a
letter to Yuanxin concerning the business proprietary designation of
the company's Web site address.
On February 4, 2011, the Department issued the briefing schedule
for briefs addressing all issues except the bona fides of Huachao's and
Yuanxin's respective sales. On February 8, 2011, Yuanxin requested an
extension to the deadlines as established in the February 4, 2011
briefing schedule. On February 9, 2011, the Department issued an
extension of this briefing schedule, with briefs due February 17, 2011,
and rebuttal briefs due February 22, 2011. On February 14, 2011, the
Department placed information related to Jinxiang Hejia Co., Ltd.'s NSR
sale to the United States, from the 2007/2008 NSR, on the record of
this review. Huachao and Yuanxin submitted supplemental questionnaire
responses on February 14, 2011. Yuanxin also submitted its case brief
on February 14, 2011. On February 15, 2011, the Department placed
memoranda on the record of this review that included information
related to
[[Page 19323]]
Yuanxin's domain name registration and the corporate records of the
importers and customers of each of the exporters involved in this
review. On February 17, 2011, Huachao and Chengda submitted case
briefs.
On February 18, 2011, the Department issued the briefing schedule
for briefs addressing only the bona fides of Huachao's and Yuanxin's
respective sales. Additionally, on February 18, 2011, the Fresh Garlic
Producers Association and its individual members (Christopher Ranch
L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company,
Inc.) (collectively, Petitioners) requested an extension of the
February 22, 2011 deadline for rebuttal briefs not related to the bona
fides of Huachao's and Yuanxin's respective sales. On February 22,
2011, the Department granted Petitioners' February 18, 2011 request for
an extension to the rebuttal briefs deadline, the new deadline becoming
February 25, 2011. On February 24, 2011, Petitioners submitted a
rebuttal to Huachao's February 14, 2011 supplemental questionnaire
response. On February 25, 2011, Petitioners submitted rebuttal briefs
for all three respondents. Also, on February 25, 2011, Petitioners
submitted a brief regarding whether Huachao's POR sale was bona fide.
On March 1, 2011, Huachao requested an extension to the deadline of
the bona fides rebuttal briefs as established in the Department's
February 18, 2011 briefing schedule. On March 2, 2011, the Department
granted Huachao's March 1, 2011 request for an extension, the new
deadline for bona fides rebuttal briefs becoming March 7, 2011. On
March 3, 2011, Huachao submitted a letter requesting that the
Department reject Petitioners' February 24, 2011 submission on the
grounds that it contained untimely new factual information. Further,
Huachao argued that Petitioners' February 25, 2011 case brief also be
rejected, as it relies upon information contained in the February 24,
2011 submission. The information in question involves the nature of the
United States garlic market and the appropriate benchmark to be used in
determining the bona fide nature of Huachao's sale. The Department
found this information to be relevant to the information provided by
Huachao in its supplemental response, which addressed Department
questions regarding whether Huachao's sale was bona fide. Thus, the
Department concluded that Petitioners' submission was timely rebuttal
information allowed for under 19 CFR 351.301(c). Finally, on March 7,
2011, Huachao submitted a rebuttal brief to the February 25, 2011 case
brief submitted by Petitioners regarding the bona fides of its sale.
On March 16, 2011, Department officials met with Chengda's counsel
to discuss issues related to the case briefs. See Memorandum for the
File from Lingjun Wang, Case Analyst, AD/CVD Operations, Office 6,
``Meeting with Counsel for the Jinxiang Chengda Import & Export Co.,
Ltd.: New Shipper Review of the Antidumping Duty Order on Fresh Garlic
from China'' (March 16, 2011). On March 17, 2011, Department officials
met with Petitioners' counsel to discuss issues related to the case
briefs. See Memorandum for the File from David Lindgren, Case Analyst,
AD/CVD Operations, Office 6, ``Meeting with Counsel for the
Petitioners: New Shipper Review of the Antidumping Duty Order on Fresh
Garlic from China'' (March 17, 2011).
Scope of the Order
The products covered by the 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 the 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.
Analyses of Comments Received
In addition to commenting on the bona fides of Chengda's and
Huachao's U.S. sales (see Bona Fides Analysis section below), the
parties addressed, in their case and rebuttal briefs, three surrogate
valuation issues: (1) What to use as the surrogate value for raw garlic
bulbs; (2) which financial statements to use as the surrogate financial
ratios; and (3) how to properly calculate the wage rate. Since, as
discussed below, we are rescinding these reviews, the Department need
not address the parties' comments on these issues pertaining to the
calculation of the dumping margin.
Bona Fides Analysis
In conducting an NSR, the Department examines price, quantity, and
other circumstances associated with the sale to determine if the sale
was based on normal commercial considerations and presents an accurate
representation of the company's normal business practices, and provides
a future indicator of its future selling practice. See Shandong Chenhe
Int'l Trading Co. v. United States, No. 08-00373, slip op. at 19 (Ct.
Int'l Trade Nov. 22, 2010); see also Tianjin Tiancheng Pharmaceutical
Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 (Ct. Int'l Trade
2005); and Hebei New Donghua Amino Acid Co., Ltd. v. United States, 374
F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005). 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 not bona fide, and, as such, cannot serve as a
reasonable or reliable basis for calculating a dumping margin.
In the Preliminary Results, the Department found Chengda's POR
sales to be not bona fide. The Department found that Huachao's POR
sale, however, was made on a bona fide basis, noting that it would
continue to examine all factors relating to the bona fides of that sale
given the Department's concerns regarding the price, quantity, and
payment terms of the sale. Likewise, the Department found that
Yuanxin's POR sale was also made on a bona fide basis, noting that it
would continue to examine the bona fides of the sale given the
Department's concerns regarding the price, quantity, and atypicality of
the product and transaction. Based on our continuing analyses of all
aspects of the parties' sales, summarized below, and our analyses of
supplemental questionnaire
[[Page 19324]]
responses, of information and documentation from a prior NSR placed on
the record of this review, and of comments made by interested parties,
the Department continues to find that Chengda's sales are not bona
fide, and now finds that the sales of Yuanxin and Huachao are not bona
fide as well. As such, the sales made by all three parties do not
provide reasonable or reliable bases for calculating dumping margins.
Chengda
For the Preliminary Results, the Department analyzed the bona fides
of Chengda's sales and preliminarily found Chengda's sales to the
United States to be not bona fide. 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 Chengda Imp & Exp Co.,
Ltd.'' (November 1, 2010). Since the Preliminary Results, both Chengda
and Petitioners have submitted arguments regarding whether Chengda's
POR shipment was bona fide. Significant portions of these arguments
involve discussion of business proprietary information (BPI).
Therefore, the Department's summaries of, and positions on, these
arguments, in addition to our full analysis of the bona fides of
Chengda's sales, are included in the memorandum, ``Final Results of
Antidumping Duty New Shipper Review of Fresh Garlic from the People's
Republic of China: Bona Fides Analysis of Chengda Imp & Exp Co.,
Ltd.,'' issued concurrently with this Federal Register notice. Based on
the Department's complete analysis of all the information on the record
of this review regarding the bona fides of Chengda's NSR sales, the
Department continues to find Chengda's sales not bona fide because (1)
Chengda's sale prices are so high that they are atypical, aberrational,
commercially unreasonable, and not indicative of future sales, and (2)
Chengda's sales quantities are too small to reflect normal commercial
practices of the garlic industry.
Huachao
For the Preliminary Results, the Department analyzed the bona fides
of Huachao's sale and preliminarily found Huachao's sale to the United
States to be bona fide, noting that we would continue to examine all
factors relating to the bona fides of that sale given the Department's
concerns regarding the price, quantity, and payment terms of the sale.
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):
Zhengzhou Huachao Industrial Co., Ltd.'' (November 1, 2010). After the
Preliminary Results, the Department issued a supplemental questionnaire
to Huachao. In addition, Petitioners filed a case brief and Huachao
filed a rebuttal brief on whether Huachao's sale should be considered
bona fide. Significant portions of these arguments involve discussion
of BPI. Therefore, the Department's summaries of, and positions on,
these arguments, in addition to our full analysis of the bona fides of
Huachao's sale, are included in the memorandum ``Final Results of
Antidumping Duty New Shipper Review of Fresh Garlic from the People's
Republic of China: Bona Fides Analysis of Zhengzhou Huachao Industrial
Co., Ltd.,'' issued concurrently with this Federal Register notice.
Based on the Department's complete analysis of all the information on
the record of this review regarding the bona fides of Huachao's NSR
sale, the Department finds Huachao's sale to be not bona fide because
(1) Huachao's sale price is so high as to be commercially unreasonable
and not indicative of the garlic industry, (2) Huachao's sales quantity
is not commercially reasonable, (3) Huachao's function as the processor
of its U.S. sale is atypical of its normal business practice, and (4)
there are inconsistencies in the information provided by Huachao's
customer in the United States, raising doubts about Huachao's
description of the sale's structure.
Yuanxin
In the Preliminary Results, the Department found that Yuanxin's POR
sale was made on a bona fide basis, noting that it would continue to
examine the bona fides of the sale given the Department's concerns
regarding the price, quantity, and atypical nature of the product and
transaction. 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 Yuanxin Imp & Exp Co., Ltd.'' (November 1, 2010). As
noted in the background section, after the Preliminary Results, the
Department issued a supplemental questionnaire to Yuanxin. In addition,
new information with respect to the bona fides of Yuanxin's sale was
placed on the record of this review. See the Department's February 14,
2011 memorandum to the file regarding Jinxiang Hejia Co., Ltd.'s NSR
and Yuanxin's February 14, 2011 supplemental questionnaire response;
see also the Department's February 15, 2011 memorandum to the file
regarding Yuanxin's domain name registration and the Department's
February 15, 2011 memorandum to the file regarding the corporate
records of the importers and customers of each of the exporters
involved in this review.
Significant portions of the issues involved in Yuanxin's bona fides
include BPI. Therefore, we have addressed all of the arguments in a
separate memorandum as part of our full bona fides analysis. See
``Final Results of Antidumping Duty New Shipper Review of Fresh Garlic
from the People's Republic of China: Bona Fides Analysis of Jinxiang
Yuanxin Imp & Exp Co., Ltd.,'' issued concurrently with this Federal
Register notice. Based on the Department's complete analysis of all the
information on the record of this review regarding the bona fides of
Yuanxin's NSR sale, the Department finds Yuanxin's sale to be not bona
fide because (1) Yuanxin's sale price is so high as to be commercially
unreasonable and not indicative of future sales, (2) Yuanxin's sales
quantity is not representative of the garlic industry, and (3) the
structure of Yuanxin's U.S. sale is of an unusual nature.
Rescission of New Shipper Reviews
For the foregoing reasons, the Department finds that the sales of
all three new shippers are not bona fide and that these sales do not
provide a reasonable or reliable basis for calculating a dumping
margin. Because these non-bona fide sales were the only sales of
subject merchandise during the POR, the Department is rescinding all
three new shipper reviews in their entirety.
Notification to Importers
The Department will notify U.S. Customs and Border Protection that
bonding is no longer permitted to fulfill security requirements for
shipments by Chengda, Huachao, and Yuanxin of fresh garlic from the PRC
entered, or withdrawn from warehouse, for consumption in the United
States on or after the publication of this rescission notice in the
Federal Register, and that a cash deposit of $4.71 per kilogram should
be collected for all shipments of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the publication
date of this notice, as provided for by section 751(a)(2)(C) of the
Act, by Chengda, Huachao, and Yuanxin.
This notice is the only reminder to parties subject to the
administrative protective order (APO) of their responsibility
concerning the return or destruction of proprietary information
[[Page 19325]]
disclosed under the APO in accordance with 19 CFR 351.305(a)(3). Timely
written notification of the return or destruction of APO materials or
conversion to judicial protective order is hereby requested. Failure to
comply with the regulations and the terms of an APO is a sanctionable
violation.
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
351.214.
Dated: March 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-8323 Filed 4-6-11; 8:45 am]
BILLING CODE 3510-DS-P
