03-15524. Fresh Garlic From the People's Republic of China: Final Results of Antidumping Duty New Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

ACTION:

Notice of final results of the antidumping duty new shipper review of fresh garlic from the People's Republic of China.

SUMMARY:

On April 29, 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 April 30, 2002. The review covers subject merchandise produced by two companies, of which one, the respondent company in this review, exported the merchandise to the United States.

We invited interested parties to comment on the preliminary results. Because we received no comments, 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 the new shipper review is listed in the “Final Result of Review” section below.

EFFECTIVE DATE:

June 19, 2003.

FOR FURTHER INFORMATION CONTACT:

Edythe Artman or Mark Ross, Office of AD/CVD Enforcement 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On April 29, 2003, the Department of Commerce (the Department) published the notice of preliminary results of this new shipper review of the antidumping duty order on fresh garlic from the People's Republic of China (PRC). See Fresh Garlic from the People's Republic of China: Preliminary Results of Antidumping Duty New Shipper Review, 68 FR 22676 (April 29, 2003) (Preliminary Results). We invited interested parties to comment on our preliminary results.

We received no comments.

We have conducted this review in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214 (2001).

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 the U.S. Bureau of Customs and Border Protection (Customs) to that effect.

Separate Rate

In the preliminary results, the Department found that Huaiyang Hongda Dehydrated Vegetable Company (Hongda) had submitted documentation and responses that established an absence of both de jure and de facto control by the Chinese government. We preliminarily determined that Hongda had met the criteria for the application of a separate rate. See Preliminary Results, 68 FR at 22677.

Since the preliminary results, we have not received any information that provides a basis for reconsideration of this determination. Therefore, we find that Hongda is entitled to a separate rate for purposes of this review.

Use of Adverse Facts Available

In the preliminary results, we recounted the numerous opportunities that we gave Hongda and its supplier to provide the Department with the information necessary to calculate dumping margins for sales of its merchandise and that of its supplier. We issued an original and three supplemental questionnaires to Hongda and requested factors-of-production information from the supplier, Jin Xiang Jin Ma Fruit and Vegetable Products Company, Ltd. (Kima), indirectly through Hongda and in a direct mailing to Kima. Nevertheless, we did not receive detailed information regarding the sales transactions that took place between Kima and Hongda, information regarding the production process of the garlic Hongda purchased from Kima, or factors-of-production information from Kima.

In response to the second supplemental questionnaire, Hongda merely identified Kima as a company that “grows and sells garlic” and stated that it “simply purchased the garlic” from Kima. In response to the third supplemental questionnaire, Hongda claimed, in contradiction to an earlier response, that it had taken possession of the garlic purchased from Kima and processed it before exporting it to the United States. Hongda also stated that Kima was unwilling to provide details on its production process or its factors of production. In support of its response, Hongda submitted a certification from Kima to the effect that it was “unable” to provide the requested information. Hongda provided no reason for this “inability” to respond.

Following the response to the third supplemental questionnaire, we issued a questionnaire directly to Kima in which we requested that it respond to the factors-of-production questionnaire. The company did not respond to our request.

Because Hongda did not provide the Department with the information necessary to calculate a margin on the overwhelming majority of its sales—those involving garlic purchased from Kima, because it did not explain why it could not provide the information for those sales, and because Kima, an “interested party” with respect to these transactions, did not provide the requested information, we preliminarily determined that the use of facts otherwise available was warranted to calculate a margin for all of Hongda's sales pursuant to section 776(a)(2) of the Act. See Preliminary Results, 68 FR 22678. Furthermore, we found that, by not providing the factors-of-production information for the Kima/Hongda transactions, that neither Hongda nor Kima acted to the best of its ability in providing the Department with the necessary information to calculate a margin. Therefore, pursuant to sections 782(e)(3), (4), and (5) of the Act, the Department did not use the information reported by Hongda and instead applied total adverse facts available to Hongda pursuant to section 776(b) of the Act. See Preliminary Results, 68 FR 22679. Furthermore, we corroborated the adverse facts-available rate, the rate that is currently applicable to all exporters subject to the PRC-wide rate, pursuant to section 776(c) of the Act. See Preliminary Results, 68 FR at 22680.

Since the preliminary results, Hongda has provided no comments on our preliminary results and no additional information concerning the sales under review. We have received no comments or information from other interested parties.

Therefore, we have no basis to reconsider our preliminary determination. According, we are applying adverse facts available to the sales of merchandise produced by Hongda or Kima and exported by Hongda during the period of review.

Final Result 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 April 30, 2002, on Hongda'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 for by section 751(a)(2)(C) of the Act: (1) For subject merchandise grown by Hongda or Jin Xiang Jin Ma Fruit and Vegetable Products Co. Ltd. (Kima) and exported by Hongda, the cash-deposit rate will be 376.67 percent; (2) for all other subject merchandise exported by Hongda, 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; and (4) for all non-PRC exporters of subject merchandise that have not been assigned an individual rate, the cash-deposit rate will be the rate applicable to the PRC supplier of 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 Hongda 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 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.

This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO material or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanctions.

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: June 13, 2003.

Jeffrey May,

Acting Assistant Secretary for Import Administration.