03-32065. Fresh Garlic from the People's Republic of China: Final Results of Antidumping Duty New Shipper Review for Xiangcheng Yisheng Foodstuffs Co., Ltd.

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of Final Results of Antidumping Duty New Shipper Review for Xiangcheng Yisheng Foodstuffs Co., Ltd.

SUMMARY:

On September 26, 2003, the Department of Commerce published the preliminary results of the new shipper review of the antidumping duty order on fresh garlic from the People's Republic of China. The period of review is November 1, 2001, through October 31, 2002. The new shipper review initially covered three producers/exporters of subject merchandise. The Department issued a separate notice of preliminary results of the new shipper review for Xiangcheng Yisheng Foodstuffs Co., Ltd. (“Yisheng”). Accordingly, this notice pertains solely to the final results of review for Yisheng. The notice of final results of the review applicable to the other two producers/exporters is due April 8, 2004.

We invited interested parties to comment on our preliminary results. Based on our analysis of the comments received, we have made no changes to our preliminary determination that, based on the use of adverse facts available, the respondent sold subject merchandise to the United States at prices below normal value. The final dumping margin for Yisheng is listed in the “Final Results of Review” section below.

EFFECTIVE DATE:

December 30, 2003.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Frank or Minoo Hatten, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Room 4203, Washington, DC 20230; telephone [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Scope of the Order

The products covered by this antidumping duty order are all grades of garlic, whole or separated into constituent cloves, whether or not peeled, fresh, chilled, frozen, provisionally preserved, or packed in water or other neutral substance, but not prepared or preserved by the addition of other ingredients or heat processing. The differences between grades are based on color, size, sheathing, and level of decay.

The scope of this order does not include the following: (a) garlic that has been mechanically harvested and that is primarily, but not exclusively, destined for non-fresh use; or (b) garlic that has been specially prepared and cultivated prior to planting and then harvested and otherwise prepared for use as seed.

The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive. In order to be excluded from the antidumping duty 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 (“Customs”) to that effect.

Background

The Department of Commerce (“Department”) is conducting this review of Yisheng in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (“the Act”). On September 26, 2003, the Department published the preliminary results of the new shipper review of the antidumping duty order on fresh garlic from the People's Republic of China with respect to Yisheng. See Fresh Garlic from the People's Republic of China: Preliminary Results of Antidumping Duty New Shipper Review for Xiangcheng Yisheng Foodstuffs Co., Ltd., 68 FR 55583 (“Preliminary Results”). We invited parties to comment on that Preliminary Results. We received comments from Yisheng and rebuttal comments from the petitioners, the Fresh Garlic Producers Association¹ and its individual members. On November 5, 2003, we held a hearing during which the parties presented their comments.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to the new shipper review are addressed in the “Issues and Decision Memorandum for Final Results of the New Shipper Review of the Antidumping Duty Order of Fresh Garlic from the People's Republic of China” from Jeff May to James J. Jochum (December 22, 2003) (“Decision Memo”), which is hereby adopted by this notice. A list of the issues which parties raised and to which we respond in the Decision Memo is attached to this notice as an Appendix. The Decision Memo is a public document and is on file in the Central Records Unit, Main Commerce Building, Room B-099, and is accessible on the Web at www.ia.ita.doc.gov.

Separate Rates

In the Preliminary Results, the Department established that Yisheng is sufficiently independent in its export activities from government control to be entitled to a separate, company-specific rate. See Preliminary Results, 68 FR at 55584. We have not received any information since the issuance of the Preliminary Results that provides a basis for reconsideration of this determination.

Use of Adverse Facts Available

In the Preliminary Results, the Department assigned Yisheng the rate of 376.67 percent based on the use of adverse facts available. See Preliminary Results, 68 FR at 55586. The Department has considered the issues raised by Yisheng and the petitioners and has addressed them in the Decision Memo. Based on its analysis of the parties' comments and for the reasons outlined in the Preliminary Results, the Department has not changed its determination with respect to the application of adverse facts available to subject merchandise exported by Yisheng. In summary, Yisheng withheld information requested by the Department, failed to provide requested information in a timely manner, significantly impeded the proceeding within the meaning of section 776(a)(2) of the Act, and did not act to the best of its ability to comply with the Department's request for information. Thus, for the final results of review, the Department has determined that it is appropriate to base Yisheng's antidumping margin on adverse facts available.

Final Results of Review

As a result of the application of adverse facts available, we find that a dumping margin of 376.67 percent exists for the period November 1, 2001, through October 31, 2002, on Yisheng's shipments of fresh garlic from the PRC.

The Department shall determine, and Customs shall assess, antidumping duties on all appropriate entries. We will issue appropriate assessment instructions directly to Customs within 15 days of publication of these final results of review.

Cash-Deposit Requirements

The following cash-deposit requirements will be effective upon publication of the final results of this new shipper review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) for subject merchandise grown by Henan Yuyu Fruit & Vegetables Products Co., Ltd., and exported by Yisheng, the cash-deposit rate will be 376.67 percent; (2) for all other subject merchandise exported by Yisheng, the cash-deposit rate will be the PRC countrywide rate, which is 376.67 percent; (3) for all other PRC exporters which have not been found to be entitled to a separate rate, the cash-deposit rate will be the PRC countrywide rate; (4) for all PRC exporters of subject merchandise which have been found to be entitled to a separate rate, the cash-deposit rate will remain the rate applicable to that exporter; and (5) for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the PRC exporter which supplied that exporter. These deposit requirements shall remain in effect until publication of the final results of the next administrative review.

Notification

Bonding is no longer permitted to fulfill security requirements for shipments from Yisheng of fresh garlic from the PRC entered, or withdrawn from warehouse, for consumption in the United States on or after the publication of this notice in the Federal Register.

This notice serves as a final reminder to importers covered by this determination 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 Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

We are issuing and publishing these final results of review in accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR 351.214(i)(1) and 351.210(c).

Dated: December 19, 2003.

James J. Jochum,

Assistant Secretary for Import Administration.

Appendix

Decision Memo

1. Use of Adverse Facts Available

2. Supplier is Not an Interested Party

3. AFA Should Have Been Applied Only to the FOP Segment

Footnotes

1.  The members of the Fresh Garlic Producers Association are Christopher Ranch LLC, Farm Gate LLC, The Garlic Company, Spice World, Inc., and Vessey and Company, Inc.