Fresh Garlic From the People's Republic of China: Partial Preliminary Results, Rescission of, and Intent To Rescind, in Part, the 2009-2010 Administrative Review, 65172-65178 [2011-27204]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 76, Number 203 (Thursday, October 20, 2011)]
[Notices]
[Pages 65172-65178]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-27204]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic From the People's Republic of China: Partial 
Preliminary Results, Rescission of, and Intent To Rescind, in Part, the 
2009-2010 Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: In response to requests from interested parties, the 
Department of Commerce (the Department) is conducting an administrative 
review of the antidumping duty order on fresh garlic from the People's 
Republic of China (PRC) covering the period of review (POR) of November 
1, 2009, through October 31, 2010. The Department initiated this review 
for 112 producers/exporters (companies).\1\ The Department is issuing 
partial preliminary results for the PRC-wide entity only, which 
includes the seven companies listed in Appendix III. Based on timely 
withdrawals of requests for review, the Department is now rescinding 
the review with respect to 84 companies which are listed in Appendix I. 
The Department also preliminarily determines that a rescission of the 
administrative review is warranted with respect to 14 companies which 
each timely submitted a ``no shipment'' certification. The intent to 
rescind is applicable to the companies listed in Appendix II. In 
addition, there are seven companies which the Department determines are 
subject to the PRC-wide entity rate and which are subject to these 
partial preliminary results. These seven companies are listed in 
Appendix III. Accordingly, 21 companies are subject to these partial 
preliminary results and the intent to rescind the administrative review 
and are listed in Appendix IV.
---------------------------------------------------------------------------

    \1\ We also initiated a review of Zhengzhou Dadi. However, the 
responses of Shenzhen Xinboda, a mandatory respondent, indicate that 
Zhengzhou Dadi is its affiliated producer. As such, we will address 
Zhenghou Dadi in the context of our analysis of Shenzhen Xinboda. We 
do not include Zhengzhou Dadi in our company counts in this notice.
---------------------------------------------------------------------------

    The Department is issuing these partial preliminary results based 
on unique circumstances that have raised concerns with respect to 
enforcement of the antidumping duty order. Specifically, there are two 
mandatory respondents who are not participating in this review. Because 
these two companies have failed to establish their eligibility for a 
separate rate, the Department preliminarily determines that each of 
these companies are part of the PRC-wide entity. Thus, each company's 
current cash deposit rate is much lower than the rate preliminarily 
determined to be applicable to their entries. While such circumstances 
do not normally warrant issuance of partial preliminary results, there 
are unique and serious enforcement concerns that warrant issuing 
preliminary results for certain companies at this time. A more detailed 
explanation of the disposition of each of the above companies is set 
forth below.\2\ The remaining seven companies under review will be 
covered in a separate partial preliminary results of review, and are 
listed in Appendix V. The preliminary results of review for these seven 
remaining companies are currently due November 10, 2011.
---------------------------------------------------------------------------

    \2\ The specific facts underlying the Department's decision for 
issuing these partial preliminary results are business proprietary. 
See Memorandum to The File, Through Barbara E. Tillman, Director, 
AD/CVD Operations, Office 6, Import Administration, and Thomas 
Gilgunn, Program Manager, AD/CVD Operations, Office 6, From: Scott 
Lindsay, Case Analyst, AD/CVD Operations, Office 6, Subject: 
Discussion of Business Proprietary Information for Partial 
Preliminary Results of Administrative Review for Fresh Garlic from 
the People's Republic of China, dated concurrently with this notice.
---------------------------------------------------------------------------

    The Department invites interested parties to comment on these 
partial preliminary results for the PRC-wide entity and on our intent 
to rescind the administrative review of the 14 companies which 
certified ``no shipments.'' If the partial preliminary results for the 
PRC-wide entity are adopted in the partial final results, the 
Department will instruct U.S. Customs and Border Protection (CBP) to 
assess antidumping duties on all appropriate entries of subject 
merchandise during the POR.

DATES: Effective Date: October 20, 2011.

FOR FURTHER INFORMATION CONTACT: Scott Lindsay or Lingjun Wang, 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 and (202) 482-2316.

SUPPLEMENTARY INFORMATION:

Background

    On November 16, 1994, the Department published in the Federal 
Register the antidumping duty order on fresh garlic from the PRC.\3\ On 
November 1, 2010, the Department published a notice of opportunity to 
request an administrative review of the antidumping duty order on fresh 
garlic from the PRC for the period November 1, 2009, through October 
31, 2010.\4\ On November 16, 26, 29, and 30, 2010, eight companies 
timely requested the Department to review their exports of subject 
merchandise: (1) Chengwu County Yuanxiang Industry & Commerce Co., 
Ltd.; (2) Hebei Golden Bird Trading Co., Ltd. (Golden Bird); (3) Henan 
Weite Industrial Co., Ltd.; (4) Jinan Farmlady Trading Co., Ltd. 
(Farmlady); (5) Qingdao Xintianfeng Foods Co., Ltd.; (6) Shenzhen 
Xinboda Industrial Co., Ltd. (Xinboda); (7) Weifang Hongqiao 
International Logistic Co., Ltd. (Hongqiao); (8) Zhengzhou Harmoni 
Spice Co., Ltd. (Harmoni).
---------------------------------------------------------------------------

    \3\ See Antidumping Duty Order: Fresh Garlic From the People's 
Republic of China, 59 FR 59209 (November 16, 1994).
    \4\ See Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation: Opportunity To Request Administrative 
Review, 75 FR 67079 (November 1, 2010).
---------------------------------------------------------------------------

    On November 30, 2010, the Fresh Garlic Producers Association (FGPA) 
and its individual members \5\ (collectively, Petitioners) timely

[[Page 65173]]

requested that the Department conduct an administrative review of 112 
companies.\6\ On December 28, 2011, the Department published a notice 
of initiation of administrative review with respect to 112 
companies.\7\
---------------------------------------------------------------------------

    \5\ The individual members of the FGPA are Christopher Ranch 
L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, 
Inc.
    \6\ These 112 companies include the eight companies that 
requested their own reviews.
    \7\ See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Request for Revocation in Part, 75 FR 
81565, 81568-81569 (December 28, 2010) (Initiation Notice).
---------------------------------------------------------------------------

    On March 28, 2011, Petitioners timely withdrew their requests to 
review 84 of the 112 companies they initially requested, including 
Harmoni. See Attachment I. Harmoni also withdrew its own review 
request. On March 31, 2011, Hongqiao also withdrew its own review 
request and claimed that Petitioners also withdrew their request to 
review Hongqiao. On April 5, 2011, Petitioners responded to Hongqiao's 
withdrawal, stating that Petitioners did not withdraw their review 
request for Hongqiao. On April 15, 2011, the Department notified 
Hongqiao that it continues to be included in the review.\8\
---------------------------------------------------------------------------

    \8\ See the Department's April 15, 2011 letter to Hongqiao.
---------------------------------------------------------------------------

    On November 30, 2010, Jining Yongjia Trade Co., Ltd. (Yongjia), 
Qingdao Tiantaixing Foods Co., Ltd. (QTF), Weifang Chenglong Import & 
Export Co., Ltd. (Chenglong), Jining Yifa Garlic Produce Co., Ltd. 
(Yifa), Jinxiang Hejia Co., Ltd. (Hejia), Qingdao Sea-line 
International Trading Co., Ltd. (Sea-line), Shenzhen Bainong Co., Ltd. 
(Bainong) each timely certified that it had no shipments during the 
POR. On this same date, Yantai Jinyan Trading Co., Ltd. (Yantai) 
certified that it made no shipments during the period June 1, 2010, 
through October 31, 2010. On January 18, 2011, Jinxiang Chengda Import 
& Export Co., Ltd. (Chengda), Jinxiang Yuanxin Import & Export Co., 
Ltd. (Yuanxin), and Zhengzhou Yuanli Trading Co., Ltd. (Yuanli) each 
timely certified that it had no shipments during the POR. On January 
24, 2011, Shandong Wonderland Organic Food Co., Ltd. (Wonderland) and 
XuZhou Simple Garlic Industry Co., Ltd. (Simple) each timely certified 
that it had no shipments during the POR. On February 3, 2011, Shanghai 
LJ International Trading Co., Ltd. (Shanghai LJ) timely certified that 
it had no shipments during the POR. On February 24, 2011, Zhengzhou 
Huachao Industrial Co., Ltd. (Huachao) timely certified that it had no 
shipments during the POR.
    On January 5, 2011, the Department released CBP data for U.S. 
garlic imports from the PRC during the POR under Administrative 
Protective Order (APO), and invited comments regarding the data and 
respondent selection. No parties commented. On March 4, 2011, the 
Department selected five companies as mandatory respondents: (1) Golden 
Bird; (2) Longtai; (3) Xinboda; (4) Hongqiao; (5) Harmoni.\9\
---------------------------------------------------------------------------

    \9\ See Memorandum to Barbara E. Tillman, Through Thomas 
Gilgunn, From Nicholas Czajkowski, Re: Antidumping Administrative 
Review of Fresh Garlic from the People's Republic of China: 
Respondent Selection Memorandum (March 4, 2011).
---------------------------------------------------------------------------

    On March 14, 2011, the Department issued the Non-Market Economy 
Antidumping Duty Questionnaire (Initial Questionnaire) to the five 
mandatory respondents. On March 30, 2011, Harmoni notified the 
Department that it would not submit a questionnaire response because it 
anticipated that the Department would rescind its review since 
Petitioners and Harmoni had each withdrawn their requests for review 
with respect to Harmoni (on March 28, 2011 and March 31, 2011, 
respectively). On April 25 and May 18, 2011, Golden Bird and Xinboda 
each submitted responses to Section A, C and D of the 
questionnaire.\10\ On April 25, 2011, Hongqiao informed the Department 
that it would not respond to the Initial Questionnaire.\11\ Longtai did 
not respond to the Initial Questionnaire nor did it request any 
extension of time to respond to the questionnaire.
---------------------------------------------------------------------------

    \10\ The Department granted several extensions for various 
sections of the Initial Questionnaire.
    \11\ See Hongqiao's April 25, 2011 letter to the Department.
---------------------------------------------------------------------------

    On April 6, 2011, Petitioners placed on the record the CBP data 
that the Department released in the new shipper review which covered 
the first six months of the POR. On April 7, 2011, the Department 
placed additional CBP data on the record. On April 15, 2011, 
Petitioners met with the Department regarding the possible selection of 
additional mandatory respondents.\12\ On May 9, 2011, Petitioners 
requested the Department to select additional mandatory 
respondents.\13\ On May 17, 2011, Farmlady opposed Petitioners' request 
to select it as one of the additional mandatory respondents. On May 25, 
2011, Yantai requested to be a mandatory respondent. The Department did 
not select any additional mandatory respondents.
---------------------------------------------------------------------------

    \12\ See Memorandum to the File, Re: Meeting with Counsel for 
the Petitioners: Administrative Review of the Antidumping duty Order 
on Fresh Garlic from China (11/01/09-10/30/10) (April 18, 2011).
    \13\ Petitioners argued that the Department should select the 
three next largest exporters, during the POR, to serve as mandatory 
respondents in this review.
---------------------------------------------------------------------------

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 
the 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 U.S. Customs and Border Protection to that effect.

Partial Rescission of the Administrative Review

    Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an 
administrative review, in whole or in part, if a party that requested a 
review withdraws the request within 90 days of the date of publication 
of notice of initiation of the requested review.
    For all but one of the 84 companies, Petitioners were the only 
party that requested the review. The remaining company, Harmoni, also 
self-requested a review. As mentioned above, on March 28, 2011 and 
March 31, 2011, within the 90 days of publication of the notice of 
initiation, Petitioners and Harmoni each timely withdrew their 
respective review requests for Harmoni.\14\ Therefore, the

[[Page 65174]]

Department is rescinding this review with respect to 84 companies in 
accordance with 19 CFR 351.213(d)(1). See Appendix I.
---------------------------------------------------------------------------

    \14\ On March 31, 2011, Golden Bird urged the Department to 
determine whether Harmoni had any business dealings with Petitioners 
before any final rescission. The regulations are clear that so long 
as the parties that requested the review timely withdraw the 
request, the Secretary will rescind the review. Since both 
withdrawal requests were timely, the Department has no basis to 
evaluate the reasoning behind a party's decision to withdraw its 
request. Furthermore, Golden Bird provided no evidence to support 
its claim that there have been business dealings between Petitioners 
and Harmoni.
---------------------------------------------------------------------------

Intent To Rescind, in Part, the Administrative Review

    Pursuant to 19 CFR 351.213(d)(3), the Department may rescind a 
review where there are no exports, sales, or entries of subject 
merchandise during the respective POR. In the Initiation Notice, the 
Department stated that any company named in the notice of initiation 
that had no exports, sales, or entries during the POR should notify the 
Department within 60 days of publication of the Initiation Notice in 
the Federal Register. The Department stated that it would consider 
rescinding the review only if the company submitted a properly filed 
and timely statement certifying that it had no exports, sales, or 
entries of subject merchandise during the POR. See Initiation Notice. 
The deadline to submit ``no shipment'' certifications was February 26, 
2011.
    When examining a no-shipment certification, the Department's 
practice is to: (1) Review the respondent's no shipment claim; (2) 
examine CBP entry data to determine whether these data are consistent 
with the claim; and (3) send a ``No Shipment Inquiry'' to CBP 
requesting that CBP notify the Department if it has evidence of 
shipments from the company making the claim. If, after taking these 
three steps, the Department finds no evidence to indicate that the 
companies at issue had exports, entries, or sales of subject 
merchandise under the order during the POR, the Department 
preliminarily rescinds its review, pursuant to 19 CFR 
351.213(d)(3).\15\
---------------------------------------------------------------------------

    \15\ See, e.g., 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 
(June 19, 2009)(Garlic 13).
---------------------------------------------------------------------------

    As noted above, (1) Yongjia, (2) QTF, (3) Chenglong, (4) Yifa, (5) 
Hejia, (6) Sea-line, (7) Bainong, (8) Chengda, (9) Yuanxin, (10) 
Yuanli, (11) Wonderland, (12) Simple, (13) Shanghai LJ, and (14) 
Huachao each timely certified that it had no shipments during the POR. 
Yantai also submitted a no-shipment certification covering the period 
June 1, 2010, through October 31, 2010. However, during the period 
November 1, 2009, through May 31, 2010, subject merchandise produced/
exported by Yantai did enter the United States for consumption.\16\ As 
such, the Department is not intending to rescind the review with 
respect to Yantai.
---------------------------------------------------------------------------

    \16\ See Fresh Garlic From the People's Republic of China: Final 
Rescission of New Shipper Reviews of Jining Yifa Garlic Produce Co., 
Ltd., Shenzhen Bainong Co., Ltd., and Yantai Jinyan Trading Inc., 76 
FR 52315 (August 22, 2011).
---------------------------------------------------------------------------

    The Department has reviewed all relevant no-shipment claims, has 
examined the CBP entry data, and sent no-shipment inquiries to CBP for 
each of these companies. In the no-shipment inquiries, we requested CBP 
to provide any information regarding entries by these companies during 
the POR within 10 days. We did not receive any responses from CBP to 
our no-shipment inquiries. After taking these steps, we have found no 
evidence that any of the above-noted fourteen companies made shipments 
during the POR. Therefore, pursuant to 19 CFR 357.213(d)(3), the 
Department is preliminarily rescinding the review with respect to 
Yongjia, QTF, Chenglong, Yifa, Hejia, Sea-line, Bainong, Chengda, 
Yuanxin, Yuanli, Wonderland, Simple, Shanghai LJ, and Huachao.

PRC-Wide Entity

    Hongqiao and Longtai were selected as mandatory respondents in this 
review. In this review, Hongqiao timely filed a Separate Rate 
Certification, but did not respond to the Initial Questionnaire.\17\ 
Longtai neither filed a Separate Rate Certification nor responded to 
the Initial Questionnaire. Therefore, the Department finds that 
Hongqiao and Longtai failed to establish eligibility for separate rate 
status and thus are properly considered part of the PRC-wide entity for 
purposes of these partial preliminary results.\18\
---------------------------------------------------------------------------

    \17\ As discussed above, Hongqiao informed the Department that 
it would not participate in this review on April 25, 2011.
    \18\ The Initiation Notice states ``for exporters and producers 
who submit a separate-rate status application or certification and 
subsequently are selected as mandatory respondents, these exporters 
and producers will no longer be eligible for separate-rate status 
unless they respond to all parts of the questionnaire as mandatory 
respondents.''
---------------------------------------------------------------------------

    In addition, the Department initiated a review of five companies 
which were not selected as mandatory respondents and which did not file 
a Separate Rate Certification or Separate Rate Application to 
demonstrate eligibility for separate rate status. Furthermore, none of 
these five companies properly filed a timely statement certifying that 
it had no exports, sales, or entries of subject merchandise during the 
POR. Therefore, the Department finds that these companies are part of 
the PRC-wide entity.\19\ See Appendix III for a complete list of 
companies that are part of the PRC-wide entity.
---------------------------------------------------------------------------

    \19\ See, e.g., Fresh Garlic From the People's Republic of 
China: Final Results and Final Rescission, in Part, of the 2008-2009 
Antidumping Duty Administrative Review, 76 FR 37321 (June 27, 2011) 
(Garlic 15) (finding non-respondent companies to be part of the PRC-
wide entity).
---------------------------------------------------------------------------

Use of Facts Otherwise Available and Adverse Facts Available (AFA)

    Section 776(a) of the Act provides that the Department shall apply 
``facts otherwise available'' if (1) necessary information is not on 
the record, or (2) an interested party or any other person (A) 
withholds information that has been requested, (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act, (C) significantly impedes a proceeding, or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying the facts otherwise available when 
a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information. Such an adverse 
inference may include reliance on information derived from the 
petition, the final determination, a previous administrative review, or 
other information placed on the record.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party the 
opportunity to remedy or explain the deficiency. If the party fails to 
remedy the deficiency within the applicable time limits and subject to 
section 782(e) of the Act, the Department may disregard all or part of 
the original and subsequent responses, as appropriate.
    Section 782(e) of the Act provides that the Department ``shall not 
decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all 
applicable requirements established by the administering authority'' if 
the information is timely, can be verified, is not so incomplete that 
it cannot be used, and if the interested party acted to the best of its 
ability in providing the information. Where all of these conditions are 
met, the statute requires the Department to use the information

[[Page 65175]]

supplied if it can do so without undue difficulties.

Application of AFA to the PRC-Wide Entity

    Hongqiao and Longtai were selected as mandatory respondents, but 
neither company responded to the Initial Questionnaire. As such, 
neither company has established its eligibility for separate rate 
status, and thus both companies are properly considered part of the 
PRC-wide entity for purposes of these preliminary results. Moreover, 
because the PRC-wide entity, which includes these two companies, 
withheld or failed to timely provide requested information, the 
information necessary for the Department to conduct the analysis is not 
available on the record. Moreover, the decision to not respond to the 
Initial Questionnaire constitutes a refusal to participate in the 
review and significantly impeded the proceeding. The PRC-wide entity, 
which includes Hongqiao and Longtai, neither requested an extension nor 
stated it was having difficulties in responding to the Initial 
Questionnaire. In fact, Hongqiao clearly announced its intent to not 
participate in this review by its letter of April 25, 2011.
    Had the PRC-wide entity, which includes Hongqiao and Longtai, 
participated in the review, the Department may have had the opportunity 
to calculate a margin. Pursuant to section 776(a) of the Act, however, 
as a result of the PRC-wide entity's failure to participate, the 
Department shall use facts otherwise available to reach the applicable 
determination.
    Because of the PRC-wide entity's complete failure to respond to the 
Initial Questionnaire, the Department finds that it has failed to 
cooperate by not acting to the best of its ability to comply with the 
Department's request for information. Pursuant to section 776(b) of the 
Act, the Department shall use an inference that is adverse to the 
interest of this entity.
    The PRC-wide entity, which includes Hongqiao and Longtai, has 
failed to provide requested information, which was in the sole 
possession of each respondent and could not be obtained otherwise. The 
refusal to provide the requested information constitutes circumstances 
under which it is reasonable to conclude that less than full 
cooperation has been shown.\20\ Therefore, the Department preliminarily 
determines to use an adverse inference in selecting from among the 
facts otherwise available. By using an inference that is adverse to the 
interests of the PRC-wide entity, the Department ensures the companies 
which comprise the entity will not obtain a more favorable result by 
failing to cooperate than had they cooperated fully in the review.
---------------------------------------------------------------------------

    \20\ See Nippon Steel Corporation v. United States, 337 F.3d 
1373, 1383 (Fed. Cir. 2003), where the Court of Appeals for the 
Federal Circuit (CAF[Eacute]) provided an explanation of the 
``failure to act to the best of its ability'' standard noting that 
the Department need not show intentional conduct existed on the part 
of the respondent, but merely that a ``failure to cooperate to the 
best of a respondent's ability'' existed (i.e., information was not 
provided ``under circumstances in which it is reasonable to conclude 
that less than full cooperation has been shown'').
---------------------------------------------------------------------------

Selection of AFA Rates

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) provide that the Department may rely on 
information derived from (1) The petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
information placed on the record. The Department's practice is to 
select an AFA rate that is sufficiently adverse ``as to effectuate the 
purpose of the facts available rule to induce respondents to provide 
the Department with complete and accurate information in a timely 
manner'' and that ensures ``that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully.'' \21\ Specifically, in reviews, the Department's practice in 
selecting a rate as total AFA is to use the highest rate on the record 
of the proceeding which, to the extent practicable, can be corroborated 
(assuming the rate is based on secondary information).\22\ The Court of 
International Trade (CIT) and the CAFC have affirmed decisions to 
select the highest margin from any prior segment of the proceeding as 
the AFA rate on numerous occasions.\23\ In choosing the appropriate 
balance between providing a respondent with an incentive to respond 
accurately and imposing a rate that is reasonably related to the 
respondent's prior commercial activity, selecting the highest prior 
margin reflects ``a common sense inference that the highest prior 
margin is the most probative evidence of current margins, because, if 
it were not so, the importer, knowing of the rule, would have produced 
current information showing the margin to be less.'' \24\ Therefore, as 
AFA, the Department has assigned the PRC-wide entity a dumping margin 
of $4.71 per kilogram, the highest per-unit rate on the record of any 
segment of this proceeding.\25\
---------------------------------------------------------------------------

    \21\ See Notice of Final Determination of Sales at Less Than 
Fair Value: Static Random Access Memory Semiconductors From Taiwan, 
63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the 
People's Republic of China: Final Results and Partial Rescission of 
the Seventh Administrative Review; Final Results of the Eleventh New 
Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the 
Statement of Administrative Action accompany the Uruguay Round 
Agreements Act, H.R. Rep. No. 316, 103d Cong., 2d Sess. at 870 
(SAA).
    \22\ See Glycine From the People's Republic of China: 
Preliminary Results of Antidumping Duty Administrative Review, 74 FR 
15930, 15934 (April 8, 2009), unchanged in Glycine From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu 
Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT 
August 10, 2009) (``Commerce may, of course, begin its total AFA 
selection process by defaulting to the highest rate in any segment 
of the proceeding, but that selection must then be corroborated, to 
the extent practicable.'').
    \23\ See, e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 
1335 (CIT 2004) (affirming a 73.55 percent total AFA rate, the 
highest available dumping margin calculated for a different 
respondent in the investigation); Kompass Food Trading International 
v. United States, 24 CIT 678, 683-84 (2000) (affirming a 51.16 
percent total AFA rate, the highest available dumping margin for a 
different, fully cooperative respondent); and Shanghai Taoen 
International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 
1339, 1348 (CIT 2005) (affirming a 223.01 percent total AFA rate, 
the highest available dumping margin for a different respondent in a 
previous administrative review).
    \24\ See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 
1190 (CAFC 1990).
    \25\ See Garlic 13 and accompanying Issues and Decision 
Memorandum at Comment 8.
---------------------------------------------------------------------------

Corroboration of Secondary Information Used as AFA

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation or review, it shall, to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at its disposal. Secondary information is defined as 
information derived from the petition that gave rise to the 
investigation or review, the final determination concerning the subject 
merchandise, or any previous review under section 751 of the Act 
concerning the subject merchandise.\26\ To corroborate means that the 
Department will satisfy itself that the secondary information to be 
used has probative value.\27\ To corroborate secondary information, the 
Department will, to the extent practicable, examine the reliability and 
relevance of the information to be used.\28\ Independent sources used 
to

[[Page 65176]]

corroborate such evidence may include, for example, published price 
lists, official import statistics and customs data, and information 
obtained from interested parties during the particular 
investigation.\29\
---------------------------------------------------------------------------

    \26\ See SAA.
    \27\ See id.
    \28\ See Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan: 
Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outsider Diameter, and Components 
Thereof, From Japan: Final Results of Antidumping Duty 
Administrative Reviews and Termination in Part, 62 FR 11825 (March 
13, 1997).
    \29\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value: High and Ultra-High Voltage Ceramic Station Post 
Insulators From Japan, 68 FR 35627 (June 16, 2003), unchanged in 
Notice of Final Determination of Sales at Less Than Fair Value: High 
and Ultra-High Voltage Ceramic Station Post Insulators From Japan, 
68 FR 62560 (November 5, 2003); and Notice of Final Determination of 
Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181, 
12183-84 (March 11, 2005).
---------------------------------------------------------------------------

    As discussed above, the $4.71 per kilogram is the highest rate on 
the record of any segment of the antidumping duty order. This rate was 
calculated using the ad valorem rate contained in the petition in the 
original investigation of garlic from the PRC and was applied to the 
PRC-wide entity in the immediately preceding administrative review,\30\ 
and was not challenged. Furthermore, no information has been presented 
in this review that calls into question the reliability of the 
information. Because this rate, calculated using the ad valorem rate in 
the original investigation, was also applied in the two most recently 
completed reviews of this order, and the PRC-wide rate has not been 
challenged in court, and because no party has placed evidence on the 
record questioning the reliability of this rate in this review, the 
Department finds that the selected rate is reliable. Moreover, the rate 
selected is the rate currently applicable to the PRC-wide entity. The 
CAFC has held that the Department ``is permitted to use a `common sense 
inference that the highest prior margin is the most probative evidence 
of current margins because, if it were not so, the importer, knowing of 
the rule, would have produced current information showing the margin to 
be less.'' \31\
---------------------------------------------------------------------------

    \30\ The $4.71 PRC-wide entity rate was calculated in Garlic 13, 
and subsequently applied in both Garlic 14 and Garlic 15. See Fresh 
Garlic From the People's Republic of China: Final Results and 
Partial Rescission of the 14th Antidumping Duty Administrative 
Review, 75 FR 34976 (June 21, 2010) (Garlic 14) and (Garlic 15).
    \31\ See KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 
2010) (quoting Rhone Poulenc, Inc. v. United States, 899 F.2d at 
1190).
---------------------------------------------------------------------------

    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin.\32\ Similarly, the Department does not apply a 
margin that has been discredited.\33\ None of these circumstances are 
present with respect to the rate being used here.
---------------------------------------------------------------------------

    \32\ See, e.g., Fresh Cut Flowers From Mexico; Final Results of 
Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 
22, 1996).
    \33\ See D&L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated).
---------------------------------------------------------------------------

    In fact, where the Department has found a mandatory respondent part 
of the PRC-wide entity, the Department need not corroborate the PRC-
wide rate with respect to information specific to that respondent 
because there is ``no requirement that the PRC-wide entity rate based 
on AFA relate specifically to the individual company.\34\ The 
Department's permissible determination that Hongqiao and Longtai are 
part of the PRC-wide entity means that inquiring into Hongqiao's and 
Longtai's separate sales behavior ceases to be meaningful.
---------------------------------------------------------------------------

    \34\ See Watanabe v. United States, Slip Op. 2010-139 Court No. 
09-00520 (Dec. 22, 2010)(citing Peer Bearing Co.-Changshan v. United 
States, 587 F. Supp. 2d 1319, 1327 (CIT 2008)); Shandong Mach. Imp. 
& Exp. Co. v. United States, Slip Op. 09-64, 2009 Ct. Intl. Trade 
LEXIS 76, 2009 WL 2017042, at *8 (CIT June 24, 2009)(Commerce has no 
obligation to corroborate the PRC-wide rate as to an individual 
party where that party has failed to qualify for a separate rate).
---------------------------------------------------------------------------

    As this rate is both reliable and relevant, we determine that it 
has probative value, and is thus in accordance with the requirement 
under section 776(c) of the Act, that secondary information be 
corroborated to the extent practicable.

Assessment Rates

    The Department will instruct CBP to assess antidumping duties on 
all appropriate entries. For all shipments of the subject merchandise 
entered, or withdrawn from warehouse, for consumption during the POR by 
the companies for whom the Department is rescinding reviews (see 
Appendix I), antidumping duties will be assessed on entries at rates 
equal to the cash deposit of estimated antidumping duties required at 
the time of entry, or withdrawal from warehouse, for consumption, in 
accordance with 19 CFR 351.212(c)(1)(i). The Department intends to 
issue these assessment instructions directly to CBP 15 days after the 
publication of the partial rescission final results in the Federal 
Register.
    If these partial preliminary rescission of and preliminary results 
of review are adopted in the final results, then antidumping duties 
will be assessed as follows. For all shipments of the subject 
merchandise entered, or withdrawn from warehouse, for consumption 
during the POR by the companies: 1) who certified no shipments (see 
Appendix II), antidumping duties will be assessed on entries at rates 
equal to the cash deposit of estimated antidumping duties required at 
the time of entry, or withdrawal from warehouse, for consumption, in 
accordance with 19 CFR 351.212(c)(1)(i); 2) that are part of the PRC-
wide entity (including those listed in Appendix III), antidumping 
duties will be assessed at the PRC-wide entity rate of $4.71 per 
kilogram. The Department intends to issue assessment instructions 
directly to CBP 15 days after the publication of the partial rescission 
final results in the Federal Register.

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of this partial rescission of administrative review. For 
all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act by the companies for 
whom the Department is rescinding reviews (see Appendix I), the cash 
deposit rate will continue to be the rate currently in effect for that 
company. These requirements, when imposed, shall remain in effect until 
further notice.
    If these partial preliminary results are adopted in the final 
results, then the following cash deposit requirements will be effective 
upon publication of the final results of this administrative review for 
all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For the companies 
that certified no shipments (see Appendix II), the rate continues to be 
the rate currently in effect for that company; (2) for the PRC-wide 
entities (including those companies identified in Appendix III), the 
cash deposit rate will be the PRC-wide entity rate of $4.71 per 
kilogram. These requirements, when imposed, shall remain in effect 
until further notice.

[[Page 65177]]

Comments

    Since no calculations were performed for these partial preliminary 
results, no disclosure is required under 19 CFR 351.224(b). Any 
interested party may request a hearing within 30 days of publication of 
this notice in accordance with 19 CFR 351.310(c). Any hearing will be 
held 37 days after the publication of this notice, or the first 
business day thereafter unless the Department alters the date pursuant 
to 19 CFR 351.310(d). Individuals who wish to request a hearing must 
submit a written request within 30 days of the publication of this 
notice in the Federal Register to the Assistant Secretary for Import 
Administration, U.S. Department of Commerce, pursuant to the 
Department's e-filing regulations.\35\ Requests for a public hearing 
should contain: (1) The party's name, address, and telephone number; 
(2) the number of participants; and (3) to the extent practicable, an 
identification of the arguments to be raised at the hearing.
---------------------------------------------------------------------------

    \35\ See https://iaaccess.trade.gov/help/IA%20ACCESS%20User%20Guide.pdf.
---------------------------------------------------------------------------

    Unless otherwise notified by the Department, interested parties may 
submit case briefs within 30 days of the date of publication of this 
notice in accordance with 19 CFR 351.309(c)(1)(ii). As part of the case 
brief, parties are encouraged to provide a summary of the arguments and 
a table of authorities cited in accordance with 19 CFR 351.309(c)(2). 
Rebuttal briefs, which must be limited to issues raised in the case 
briefs, must be filed within five days after the case brief is filed in 
accordance with 19 CFR 351.309(d). All briefs must be filed in 
accordance with the Department's e-filing regulations.\36\ If a hearing 
is held, an interested party may make an affirmative presentation only 
on arguments included in that party's case brief and may make a 
rebuttal presentation only on arguments included in that party's 
rebuttal brief in accordance with 19 CFR 351.310(c). Parties should 
confirm by telephone the time, date, and place of the hearing within 48 
hours before the scheduled time. The Department will issue the final 
results of this review, which will include the results of its analysis 
of issues raised in the briefs, not later than 120 days after the date 
of publication of this notice in accordance with section 751(a)(3)(A) 
of the Act and 19 CFR 351.213(h)(1).
---------------------------------------------------------------------------

    \36\ Id.
---------------------------------------------------------------------------

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing these partial preliminary results in 
accordance with sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 
351.214(h) and 351.221(b)(4).

    Dated: October 13, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.

Appendix I--Companies For Which the Administrative Review Is Being 
Rescinded

    The following companies were named in our Initiation Notice. 
Subsequently, interested parties timely withdrew all requests for 
review of these companies. Therefore, pursuant to 19 CFR 
351.213(d)(1), we are rescinding this administrative review with 
respect to these companies.
    1. APM Global Logistics (Shanghai) Co., Ltd.
    2. American Pioneer Shipping
    3. Anhui Dongqian Foods Ltd
    4. Anqiu Friend Food Co., Ltd.
    5. Anqiu Haoshun Trade Co., Ltd.
    6. APS Qingdao
    7. Chiping Shengkang Foodstuff Co., Ltd.
    8. CMEC Engineering Machinery Import & Export Co,. Ltd.
    9. Dongying Shunyifa Chemical Co., Ltd.
    10. Dynalink Systems Logistics (Qingdao) Inc.
    11. Feicheng Acid Chemicals Co., Ltd.
    12. Frog World Co., Ltd.
    13. Golden Bridge International, Inc.
    14. Hangzhou Guanyu Foods Co., Ltd.
    15. Heze Ever-Best International Trade Co., Ltd. (f/k/a Shandong 
Heze International Trade and Developing Company)
    16. Hongqiao International Logistics Co.
    17. Intecs Logistics Service Co., Ltd.
    18. IT Logistics Qingdao Branch
    19. Jinan Solar Summit International Co., Ltd.
    20. Jinan Yipin Corporation Ltd.
    21. Jining Highton Trading Co., Ltd.
    22. Jining Jiulong International Trading Co., Ltd.
    23. Jining Tiankuang Trade Co., Ltd.
    24. Jining Trans-High Trading Co., Ltd.
    25. Jinxiang County Huaguang Food Import & Export Co., Ltd.
    26. Jinxiang Dacheng Food Co., Ltd.
    27. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang 
Eastward Shipping Import and Export Limited Company).
    28. Jinxiang Fengsheng Import & Export Co., Ltd.
    29. Jinxiang Jinma Fruits Vegetables Products Co., Ltd.
    30. Jinxiang Meihua Garlic Produce Co., Ltd.
    31. Jinxiang Shanyang Freezing Storage Co., Ltd.
    32. Jinxiang Tianheng Trade Co., Ltd.
    33. Jinxiang Tianma Freezing Storage Co., Ltd.
    34. Juye Homestead Fruits and Vegetables Co., Ltd.
    35. Kingwin Industrial Co., Ltd.
    36. Laiwu Fukai Foodstuff Co., Ltd.
    37. Laizhou Xubin Fruits and Vegetables
    38. Linyi City Heding District Jiuli Foodstuff Co.
    39. Linyi Tianqin Foodstuff Co., Ltd.
    40. Ningjin Ruifeng Foodstuff Co., Ltd.
    41. Qingdao Apex Shipping Co., Ltd.
    42. Qingdao BNP Co., Ltd.
    43. Qingdao Cherry Leather Garment Co., Ltd.
    44. Qingdao Chongzhi International Transportation Co., Ltd.
    45. Qingdao Lianghe International Trade Co., Ltd.
    46. Qingdao Saturn International Trade Co., Ltd.
    47. Qingdao Sino-World International Trading Co., Ltd.
    48. Qingdao Winner Foods Co., Ltd.
    49. Qingdao Yuankang International
    50. Qufu Dongbao Import & Export Trade Co., Ltd.
    51. Rizhao Huasai Foodstuff Co., Ltd.
    52. Samyoung America (Shanghai) Inc.
    53. Shandong Chengshun Farm Produce Trading Co., Ltd.
    54. Shandong CHINA Bridge Imports
    55. Shandong Dongsheng Eastsun Foods Co., Ltd.
    56. Shandong Garlic Company
    57. Shandong Jinxiang Zhengyang Import & Export Co., Ltd.
    58. Shandong Sanxing Food Co., Ltd.
    59. Shandong Xingda Foodstuffs Group Co., Ltd.
    60. Shandong Yipin Agro (Group) Co., Ltd.
    61. Shanghai Ever Rich Trade Company.
    62. Shanghai Goldenbridge International Co., Ltd.
    63. Shanghai Great Harvest International Co., Ltd.
    64. Shenzhen Fanhui Import & Export Co., Ltd.
    65. Shanghai Yijia International Transportation Co., Ltd.
    66. T&S International, LLC.
    67. Taian Eastsun Foods Co., Ltd.
    68. Taian Fook Huat Tong Kee Pte. Ltd.
    69. Taian Solar Summit Food Co., Ltd.
    70. Tianjin Spiceshi Co., Ltd.
    71. Taiyan Ziyang Food Co., Ltd.
    72. U.S. United Logistics (Ningbo) Inv.
    73. V.T. Impex (Shandong) Limited
    74. Weifang Jinbao Agricultural Equipment Co., Ltd.
    75. Weifang Naike Foodstuffs Co., Ltd.
    76. Weifang Shennong Foodstuff Co., Ltd.
    77. Weihai Textile Group Import & Export Co., Ltd.
    78. WSSF Corporation (Weifang)
    79. Xiamen Huamin Import Export Company
    80. Xiamen Keep Top Imp. and Exp. Co., Ltd.
    81. Xinjiang Top Agricultural Products Co., Ltd.
    82. You Shi Li International Trading Co., Ltd.
    83. Zhangzhou Xiangcheng Rainbow Greenland Food Co., Ltd.

[[Page 65178]]

    84. Zhengzhou Harmoni Spice Co., Ltd.

Appendix II--Companies That Have Certified No-Shipments

    1. Jining Yifa Garlic Produce Co., Ltd.
    2. Jining Yongjia Trade Co., Ltd.
    3. Jinxiang Chengda Import & Export Co., Ltd.
    4. Jinxiang Hejia Co., Ltd.
    5. Jinxiang Yuanxin Import & Export Co., Ltd.
    6. Qingdao Sea-Line International Trading Co., Ltd.
    7. Qingdao Tiantaixing Foods Co., Ltd.
    8. Shandong Wonderland Organic Food Co., Ltd.
    9. Shanghai LJ International Trading Co., Ltd.
    10. Shenzhen Bainong Co., Ltd.
    11. Weifang Chenglong Import & Export Co., Ltd.
    12. XuZhou Simple Garlic Industry Co., Ltd.
    13. Zhengzhou Huachao Industrial Co., Ltd.
    14. Zhengzhou Yuanli Trading Co., Ltd.

Appendix III--Companies Subject to the PRC-Wide Entity Rate

    The following companies are subject to these partial preliminary 
results and subject to the PRC-wide entity rate.
    1. Linshu Dading Private Agricultural Products Co., Ltd.
    2. Linyi City Kangfa Foodstuff Drinkable Co., Ltd.
    3. Shandong Chenhe Int'l Trading Co., Ltd.
    4. Shenzhen Greening Trading Co., Ltd.
    5. Sunny Import & Export Limited
    6. Shandong Longtai Fruits and Vegetables Co., Ltd.
    7. Weifang Hongqiao International Logistic Co., Ltd.

Appendix IV

    The following companies are subject to these partial preliminary 
results (companies that the Department preliminarily considers to be 
part of the PRC-wide entity or are subject to the Department's 
intent to rescind the administrative review).
    1. Jining Yifa Garlic Produce Co., Ltd.
    2. Jining Yongjia Trade Co., Ltd.
    3. Jinxiang Chengda Import & Export Co., Ltd.
    4. Jinxiang Hejia Co., Ltd.
    5. Jinxiang Yuanxin Import & Export Co., Ltd.
    6. Qingdao Sea-Line International Trading Co., Ltd.
    7. Qingdao Tiantaixing Foods Co., Ltd.
    8. Shandong Wonderland Organic Food Co., Ltd.
    9. Shanghai LJ International Trading Co., Ltd.
    10. Shenzhen Bainong Co., Ltd.
    11. Weifang Chenglong Import & Export Co., Ltd.
    12. XuZhou Simple Garlic Industry Co., Ltd.
    13. Zhengzhou Huachao Industrial Co., Ltd.
    14. Zhengzhou Yuanli Trading Co., Ltd.
    15. Linshu Dading Private Agricultural Products Co., Ltd.
    16. Linyi City Kangfa Foodstuff Drinkable Co., Ltd.
    17. Shandong Chenhe Int'l Trading Co., Ltd.
    18. Shenzhen Greening Trading Co., Ltd.
    19. Sunny Import & Export Limited
    20. Shandong Longtai Fruits and Vegetables Co., Ltd.
    21. Weifang Hongqiao International Logistic Co., Ltd.

Appendix V--Companies Under Review That Are Not Subject to the Partial 
Preliminary Results

    Companies that remain covered by the second partial preliminary 
results portion of the administrative review.
    1. Chengwu County Yuanxiang Industry & Commerce Co., Ltd.
    2. Hebei Golden Bird Trading Co., Ltd.
    3. Henan Weite Industrial Co., Ltd.
    4. Jinan Farmlady Trading Co., Ltd.
    5. Qingdao Xintianfeng Foods Co., Ltd.
    6. Shenzhen Xinboda Industrial Co., Ltd./(Zhengzhou Dadi Garlic 
Industry Co., Ltd.)
    7. Yantai Jinyan Trading Co., Ltd.
[FR Doc. 2011-27204 Filed 10-19-11; 8:45 am]
BILLING CODE 3510-DS-P