[Federal Register Volume 75, Number 191 (Monday, October 4, 2010)]
[Notices]
[Pages 61130-61132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24833]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic From the People's Republic of China: Final Results
of New Shipper Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Department) is conducting a new
shipper review (NSR) of Qingdao Sea-line Trading Co. Ltd. (Qingdao Sea-
line) under the antidumping duty order on fresh garlic from the
People's Republic of China (PRC) covering the period of review (POR) of
November 1, 2008 through April 30, 2009. As discussed below, we
determine that a sale has been made in the United States at a price
below normal value (NV) with respect to Qingdao Sea-line, an exporter
who participated fully and demonstrated its eligibility for separate
rate. See Fresh Garlic From the People's Republic of China: Preliminary
Results of New Shipper Review, 75 FR 24578 (May 5, 2010) (Preliminary
Results). We are continuing to find Qingdao Sea-line's sale to be bona
fide for the final results of this review. We intend to instruct U.S.
Customs and Border Protection (CBP) to assess antidumping duties on
entries of subject merchandise during the POR for which importer-
specific assessment rates are above de minimis.
DATES: Effective Date: October 4, 2010.
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
On May 5, 2010, the Department published in the Federal Register
the preliminary results of the NSR of the antidumping duty order on
fresh garlic from the PRC. See Preliminary Results. Since the
Preliminary Results, the following events have occurred.
On May 21, 2010, the Department extended the deadline for filing
case briefs. See Letter from the Department to All Interested Parties
(May 21, 2010). On July 19, 2010, Qingdao Sea-line submitted a document
on the record of this review that contained new factual information
within the meaning of 19 CFR 351.301(b)(4) and 19 CFR 351.301 (c)(1).
As a result, on July 23, 2010, the Department issued a letter to
Qingdao Sea-line rejecting its July 19, 2010 submission. Also on July
23, 2010, the Department notified the parties of the briefing schedule
for the final results. See Memorandum to the File, Antidumping Duty New
Shipper Review of Fresh Garlic From the People's Republic of China:
Briefing Schedule (July 23, 2010). On August 6, 2010, Qingdao Sea-line
timely submitted its case brief and requested a hearing. On August 16,
2010, Petitioners \1\ timely submitted their rebuttal brief.
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\1\ The Fresh Garlic Producers Association: Christopher Ranch
L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company,
Inc. (collectively, Petitioners).
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On August 27, 2010, the Department placed on the record a
memorandum indicating that, pursuant to a telephone discussion, Qingdao
Sea-line was withdrawing its request for a hearing. See Memorandum to
the File, Antidumping Duty New Shipper Review of Fresh Garlic From the
People's Republic of China: Canceled Hearing Request (August 27, 2010).
On September 3, 2010, as a result of the recent decision issued by
the Court of Appeals for the Federal Circuit's (CAFC) ruling in Dorbest
Limited et al. v. United States, 604 F.3d 1363 (Fed. Cir. 2010)
(Dorbest), the Department placed a memorandum on the record regarding
its reconsideration of its valuation of the labor wage rate for this
review. The Department gave interested parties until September 15, 2010
to comment specifically to the proposed labor wage rate methodology.
See Memorandum to the File, Fresh Garlic from the People's Republic of
China: Wage Rate Data (September 3, 2010). The Department received no
comments.
Scope of the Order
The products covered by this Order are all grades of garlic, whole
or separated into constituent cloves, whether or not peeled, fresh,
chilled, frozen, provisionally preserved, or packed in water or other
neutral substance, but not prepared or preserved by the addition of
other ingredients or heat processing. The differences between grades
are based on color, size, sheathing, and level of decay. The scope of
this order does not include the following: (a) Garlic that has been
mechanically harvested and that is primarily, but not exclusively,
destined for non-fresh use; or (b) garlic that has been specially
prepared and cultivated prior to planting and then harvested and
otherwise prepared for use as seed. The subject merchandise is used
principally as a food product and for seasoning. The subject garlic is
currently classifiable under subheadings 0703.20.0010, 0703.20.0020,
0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, and
2005.90.9700 of the Harmonized Tariff Schedule of the United States
(HTSUS). Although the HTSUS subheadings are provided for convenience
and customs purposes, our written description of the scope of this
order is dispositive. In order to be excluded from the Order, garlic
entered under the HTSUS subheadings listed above that is (1)
mechanically harvested and primarily, but not exclusively, destined for
non-fresh use or (2) specially prepared and cultivated prior to
planting and then harvested and otherwise prepared for use as seed must
be accompanied by declarations to CBP to that effect.
Analysis of Comments Received
Issues raised in the case and rebuttal briefs by parties to this
proceeding and to which we have responded are listed in the Appendix to
this notice and addressed in the Memorandum from Susan Kuhbach, Acting
Deputy
[[Page 61131]]
Assistant Secretary for Import Administration, To Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration, Fresh Garlic from
the People's Republic of China: Issues and Decision Memorandum of
Qingdao Sea-line Trading Co. Ltd. (September 24, 2010) (Issues and
Decision Memorandum), which is hereby adopted by this notice. Parties
can find a complete discussion of the issues raised in this NSR and the
corresponding recommendations in this public memorandum, which is on
file in the Central Records Unit, Room 1117 of the main Department
building. In addition, a copy of the Issues and Decision Memorandum can
be accessed directly on our Web site at http://www.trade.go/ia/. The
paper copy and electronic version of the Issues and Decision Memorandum
are identical in content.
Bona Fides Analysis
While conducting a review, particularly a review where a company's
margin would be based on a single sale, the Department examines price,
quantity, and other circumstances associated with the sale under
review, to determine if the sale was based on normal commercial
considerations and presents an accurate representation of the company's
normal business practices. If the Department determines that the price
was not based on normal commercial considerations or is atypical of the
respondent's normal business practices, including other sales of
comparable merchandise, the sale may be considered non-bona fide.
In the Preliminary Results, the Department preliminarily found that
Qingdao Sea-line's single POR sale was made on a bona fide basis. Based
on our analysis of additional information placed on the record by
Petitioners that we did not examine for the Preliminary Results, as
well as comments made by interested parties, the Department continues
to find that Qingdao Sea-line's sale was a bona fide sale. For a more
detailed discussion of this analysis, please see the Department's
accompanying Issues and Decision Memorandum.
Surrogate Country
Since the Preliminary Results, no interested party has commented on
the selection of India as the surrogate country. Therefore, we continue
to determine that India is the appropriate surrogate country for the
final results of this NSR.
Separate Rates
The Department found in the Preliminary Results that Qingdao Sea-
line demonstrated a lack of de jure and de facto government control
with respect to its export activities, and preliminarily determined
that it was eligible for a separate rate. No information has been
placed on the record of this proceeding since the Preliminary Results
to contradict our preliminary separate-rate determination. Therefore,
for the final results, we continue to determine that Qingdao Sea-line
is eligible for a separate rate.
Changes Since the Preliminary Results
Based on our analysis of information on the record of this review,
and comments received from the interested parties, we have made changes
to the surrogate values for garlic bulbs. In the Preliminary Results,
the Department stated that it would subtract seven percent from the
value of the average of Super-A grade garlic, in accordance with the
fees noted by the Azapdur APMC price data used by the Department. See
Preliminary Results of the 2008-2009 New Shipper Review of Fresh Garlic
from the People's Republic of China: Surrogate Values (April 27, 2010)
at 3. However, the Department instead used the average value inclusive
of the seven percent. Therefore, for these final results, the
Department is using the value for Super-A grade garlic, minus the seven
percent in fees, as the surrogate value for garlic bulbs. See Issues
and Decision Memorandum at Issue 2.
In addition, the Department has changed its wage rate calculation
methodology for these final results. As a consequence of the CAFC
ruling in Dorbest, the Department is no longer relying on the
regression-based wage rate described in 19 CFR 351.408(c)(3). The
Department is continuing to evaluate options for determining labor
values in light of the recent CAFC decision. For these final results,
we have calculated an hourly wage rate to use in valuing Qingdao Sea-
line's reported labor input by averaging earnings and/or wages in
countries that are economically comparable to the PRC and that are
significant producers of comparable merchandise. The Issues and
Decision Memorandum contains a more detailed explanation of this new
methodology. See Issues and Decision Memorandum at Issue 5.
Final Results of New Shipper Review
As a result of our review, we determine that the following margin
exists for the period November 1, 2008 through April 30, 2009:
Fresh Garlic From the PRC 11/1/2008-4/30/2009
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New shipper review
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Weighted- Average
Exporter/manufacturer Margin(dollars per kilogram)
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Exported by Qingdao Sea-line Trade Co. $1.28/kg.
Ltd. and Produced by Jinxiang County
Juxingyuan Trading Co., Ltd.
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Disclosure
We will disclose the calculations used in our analysis to parties
to these proceedings within five days of the date of publication of
this notice. See 19 CFR 351.224(b).
Assessment Rates
Consistent with the final results of the 14th administrative review
(AR), we will direct CBP to assess an importer-specific assessment rate
based on the resulting per-unit (i.e., per kilogram) amount on each
entry of the subject merchandise during the POR. See Fresh Garlic from
the People's Republic of China: Final Results and Partial Rescission of
the 14th Antidumping Duty Administrative, 75 FR 34976, (June 21, 2010)
(14th AR). Therefore, the Department will determine, and CBP shall
assess, antidumping duties on all appropriate entries pursuant to
section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1). The
Department intends to issue appropriate assessment instructions
directly to CBP 15 days after publication of the final results of this
review. For assessment purposes, we calculated importer-specific
assessment rates for fresh garlic from the PRC. Specifically, we
divided the total dumping margins for each importer by
[[Page 61132]]
the total quantity of subject merchandise sold to that importer during
the POR to calculate a per-unit assessment amount. We will direct CBP
to assess importer-specific assessment rates based on the resulting
per-unit (i.e., per kilogram) amount on each entry of the subject
merchandise during the POR if any importer-specific assessment rate
calculated in the final results of this review is above de minimis.
Cash Deposit Requirements
Consistent with the final results of the 14th AR, we will collect a
per kilogram cash-deposit amount. The following cash deposit
requirements will be effective upon publication of the final results of
this review for all shipments of the subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the publication
date of the final results, as provided by section 751(a)(1) of the Act:
(1) For subject merchandise produced by Jinxiang County Juxingyuan
Trading Co., Ltd. (Juxingyuan) and exported by Qingdao Sea-line, the
cash deposit rate will be the per-unit rate determined in the final
results of this new shipper review; (2) for subject merchandise
exported by Qingdao Sea-line but not produced by Juxingyuan, the cash
deposit rate continues to be the per-unit PRC-wide rate. These
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice serves as a final reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
Administrative Protective Orders
This notice also serves as a reminder to parties subject to
administrative protective orders (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 351.305, which continues
to govern business proprietary information in this segment of the
proceeding. Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
This new shipper review and notice are issued and published in
accordance with sections 751(a)(2)(B) and 777(i) of the Act and 19 CFR
and 351.214.
Dated: September 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
Appendix I
Issue 1: The Bona Fides of Qingdao Sea-line's Sale
Issue 2: Surrogate Valuation of Garlic Bulbs
Issue 3: Use of India Wholesale Price Index as Inflator for
Surrogate Values
Issue 4: Financial Ratios
Issue 5: Wage Rates
Issue 6: Cold Storage
[FR Doc. 2010-24833 Filed 10-1-10; 8:45 am]
BILLING CODE 3510-DS-P