[Federal Register Volume 75, Number 245 (Wednesday, December 22, 2010)]
[Notices]
[Pages 80458-80469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32166]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic from the People's Republic of China: Preliminary
Results of, Partial Rescission of, and Intent to Rescind, in Part, the
15th Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (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), November 1, 2008 through October 31, 2009. The Department
initiated this review for 84 producers/exporters (companies). Based on
timely withdrawal of requests for review, the Department is now
rescinding the review with respect to 54 companies which are listed in
Attachment I. As such, this review covers the 30 companies listed in
Attachment II.
One producer/exporter selected as a mandatory respondent has
participated fully and has demonstrated its eligibility for a separate
rate. We preliminarily determine that the respondent sold subject
merchandise to the United States at prices below normal value (NV). The
Department has also preliminarily determined that total adverse facts
available (AFA) is warranted for two mandatory respondents who each
failed to cooperate to the best of its ability in this proceeding. The
Department preliminarily grants a separate rate to four companies which
demonstrated the eligibility for separate rate status. The rates
assigned to each of these companies, can be found in the ``Preliminary
Results of Review'' section of this notice. The Department also intends
to rescind preliminarily the review with respect to seven companies
which each timely submitted a ``no shipment'' certification. The
remaining
[[Page 80459]]
fourteen companies for which a review was requested but which failed to
timely submit a no-shipment certification, or separate rate
certification or application, are part of the PRC-wide entity. A more
detailed explanation of the disposition of each of the above companies
can be found below.
Interested parties are invited to comment on these preliminary
results. If these preliminary results are adopted in our final results
of review, we will instruct U.S. Customs and Border Protection (CBP) to
assess antidumping duties on entries of subject merchandise during the
POR for which assessment rates are above de minimis.
DATES: Effective Date: December 22, 2010.
FOR FURTHER INFORMATION CONTACT: Scott Lindsay, David Lindgren, 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, (202) 482-3870, and (202) 482-2316, respectively.
SUPPLEMENTARY INFORMATION:
Background
On November 16, 1994, the Department published in the Federal
Register the antidumping duty order on fresh garlic from the PRC. See
Antidumping Duty Order: Fresh Garlic From the People's Republic of
China, 59 FR 59209 (November 16, 1994) (Order). On November 2, 2009,
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, 2008 through October 31, 2009.
See Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity to Request Administrative Review, 74 FR
56573 (November 2, 2009). On November 25, 2009 and November 30, 2009,
various interested parties timely requested administrative reviews of
84 garlic producers/exporters.
On December 23, 2009, the Department initiated an administrative
review for 84 companies. See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for Revocation
in Part, 74 FR 68229, 68230-68231 (December 23, 2009) (Initiation
Notice).
On November 25, 2009, Hebei Golden Bird Trading Co., Ltd. (Golden
Bird), Jining Yongjia Trade Co., Ltd. (Yongjia), Jinxiang Tianheng
Trade Co., Ltd. (Tianheng), Qingdao Tiantaixing Foods Co., Ltd. (QTF),
Weifang Chenglong Import & Export Co., Ltd. (Chenglong), each timely
certified that it had no shipments during the POR. Also, Qingdao Sea-
line International Trading Co. Ltd. (Sea-line) timely certified that it
had no shipments during the period of May 1, 2009 through October 31,
2009.\1\ On January 22, 2010, Jinan Yipin Corporation Ltd. (Yipin),
Shandong Chenhe International Trading Co., Ltd. (Chenhe), Shanghai LJ
International Trading Co. (Shanghai LJ), Zhengzhou Yuanli Trading Co.
(Yuanli) each timely certified that it had no shipments during the
POR.\2\ On March 10, 2010, the Fresh Garlic Producers Association
(FGPA) and its individual members \3\ (collectively, Petitioners)
commented on Yongjia and QTF's no shipment representations based on
publicly available information through the Port Import Export Reporting
Services (PIERS). On March 19, 2010, Yongjia and QTF responded to
Petitioners' comments.
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\1\ Sea-line has an active new shipper review that covers the
first six months of the POR covered by this administrative review,
November 1, 2008 through April 30, 2009.
\2\ On March 11, 2010, Petitioners subsequently withdrew their
requests to review Tianheng, Chenglong, and Yuanli.
\3\ The individual members of the FGPA are Christopher Ranch
L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company,
Inc.
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On January 12, 2010, the Department released CBP data to interested
parties. Comments on the CBP data were due on January 25, 2010. On
January 22, 2010, Golden Bird and Tianheng reiterated to the Department
that they did not have any shipments during the POR. See Intent to
Rescind, In Part, the Administrative Review section below.
On January 22, 2010, Henan Weite Industrial Co., Ltd. (Henan
Weite), Jinan Farmlady Trading Co., Ltd. (Farmlady), Qingdao
Xintianfeng Foods Co., Ltd. (QXF), Shandong Longtai Fruits and
Vegetables Co., Ltd. (Longtai), Weifang Hongqiao International Logistic
Co., Ltd. (Hongqiao), and Zhenzhou Harmoni Spice Co., Ltd. (Harmoni)
each timely submitted a separate rate certification.\4\ On January 13,
2010, Shenzhen Greening Trading Co., Ltd. (Shenzhen Greening) timely
submitted a separate rate certification. On February 28, 2010, Shenzhen
Greening also timely submitted a separate rate application.
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\4\ Petitioners subsequently withdrew their requests to review
Henan Weite and Harmoni.
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On February 12, 2010, the Department issued a memorandum that
tolled the deadlines for all Import Administration cases by seven
calendar days due to the Federal Government closure. See Memorandum for
the Record from Ronald Lorentzen, DAS for Import Administration,
Tolling of Administrative Deadlines as a Result of the Government
Closure During the Recent Snowstorm, dated February 12, 2010. On March
1, 2010, in accordance with section 777A(c)(2) of the Tariff Act of
1930, as amended (the Act), the Department selected the following four
companies as mandatory respondents for individual examination in this
review: Jinxiang Tianma Freezing Storage Co., Ltd. (Tianma Freezing),
Shenzhen Xinboda Industrial Co., Ltd. (Shenzhen Xinboda), Shenzhen
Greening and Harmoni. See Memorandum from Scott Lindsay, International
Trade Analyst, Office 6, Re: Antidumping Administrative Review of Fresh
Garlic from the People's Republic of China: Respondent Selection
Memorandum (March 1, 2010) (Respondent Selection Memorandum), available
on file in the Central Records Unit, Room 7046 of the Department's main
building.
On March 8, 2010, the Department issued antidumping questionnaires
(initial questionnaire) to the four mandatory respondents. On March 11,
2010 and March 30, 2010, Petitioners timely withdrew their requests to
review 54 companies. See Attachment I. Jinxiang Hejia Co. Ltd. (Hejia)
withdrew its own review request on January 13, 2010. However, since
Petitioners also requested a review of Hejia, that review continues. On
March 30, 2010, Zhengzhou Harmoni Spice Co. Ltd. (Harmoni) withdrew its
own review request in addition to Petitioners' withdrawal request.
Shenzhen Greening and Tianma Freezing did not respond to the initial
questionnaire, nor did they request any extension or state that they
were having difficulty in responding to the questionnaire. On April 19,
2010, April 26, 2010, and May 4, 2010, Shenzhen Xinboda submitted
responses to the initial questionnaire.\5\ On July 21, 2010,
Petitioners commented on these responses. On September 17, 2010, and
November 17, 2010, Shenzhen Xinboda submitted responses to the first
and second supplemental questionnaires.
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\5\ The Department granted several extensions for various
sections of the initial questionnaire.
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On April 9, 2010, Petitioners requested that the Department conduct
verification of the factual information placed on the record of this
proceeding by the mandatory respondents. On June 8, 2010, the
Department extended the deadline for the preliminary results of this
administrative review until December 7, 2010. See Fresh Garlic From The
People's Republic of China: Extension of Time Limit for Preliminary
Results of Antidumping Duty
[[Page 80460]]
Administrative Review, 75 FR 32361 (June 8, 2010).
On July 20, 2010, the Department provided all interested parties
the opportunity to submit any information they wanted the Department to
consider when selecting the surrogate country and surrogate values. On
October 19, 2010, Petitioners and Shenzhen Xinboda submitted their
respective surrogate data. On October 29, 2010, both parties commented
on the other parties' surrogate data.
Period of Review
The POR is November 1, 2008 through October 31, 2009.
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 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.
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
the review withdraws the request within 90 days of the date of
publication of the initiation notice of the requested review. Further,
pursuant to 19 CFR 351.213(d)(1), the Department is permitted to extend
this time if it is reasonable to do so.
For all but one of the 54 companies listed in Attachment II,
Petitioners were the only party that requested the review. With respect
to one other company, Harmoni, both Harmoni and Petitioners requested a
review of Harmoni. On March 30, 2010, both Petitioners and Harmoni
timely withdrew their respective review requests.\6\ Therefore, in
accordance with 19 CFR 351.213(d)(1), we are rescinding this review
with respect to all 54 companies named in the Attachment II.
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\6\ On August 16, 2010, Farmlady 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 withdrew the request, the
Secretary will rescind the review. Since both withdrawal requests
were timely, the Department has no basis to evaluate the reasoning
behind party's decision to withdraw its request. Furthermore,
Farmlady provided no evidence to support its claim that there have
been business dealings between Petitioners and Harmoni.
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Intent To Rescind, in Part, the Administrative Review
Under 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 period of review listed below. 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 period of
review should notify the Department within 30 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 period
of review. See Initiation Notice. The deadline to submit ``no
shipment'' certifications was January 22, 2010.
As noted above, Golden Bird, Yipin, Yongjia, QTF, Chenhe, and
Shanghai LJ each timely certified that it had no shipments during the
POR. Also, Sea-line timely certified that it had no shipments during
the period May 1, 2009 through October 31, 2009. The Department issued
``no-shipment'' inquires to CBP and received one response regarding
Golden Bird.
On January 22, 2010, Golden Bird and Tianheng reiterated that their
certifications are accurate.\7\ The Department examined Golden Bird's
detailed transaction information provided by CBP, and also invited
parties to comment. See Memorandum from Scott Lindsay, Re: Antidumping
Administrative Review of Fresh Garlic from the People's Republic of
China: Placing Additional Customs and Border Protection (CBP) Data on
the Record (November 10, 2010). On November 29, 2010, Golden Bird
submitted comments continuing to argue that its no-shipment
certification was accurate. Based on the evidence on the record, the
Department preliminarily determines that Golden Bird did not have any
garlic shipments enter the United States during the POR.
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\7\ Petitioners subsequently withdrew their request to review
Tianheng, so it became unnecessary to further examine Tianheng's no-
shipment certification.
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On March 10, 2010, Petitioners questioned the accuracy of Yongjia
and QTF's no-shipment statement based on PIERS data. On March 19, 2010,
Yongjia and QTF responded to Petitioners' comments by challenging the
accuracy of PIERS data. The Department examined the detailed
transaction information provided by CBP. See Memorandum from Scott
Lindsay, Re: Antidumping Administrative Review of Fresh Garlic from the
People's Republic of China: Placing Additional Customs and Border
Protection (CBP) Data on the Record (November 24, 2010). Based on the
evidence on the record, the Department preliminarily determines that
Yongjia and QTF did not have any garlic shipments enter the United
States during the POR.
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. After taking these three
steps, the Department has found no evidence on the record to indicate
that these companies had exports, entries, or sales of subject
merchandise under this order during the POR, pursuant to 19 CFR
351.213(d)(3). Therefore, the Department is preliminarily rescinding
the review with respect to Golden Bird, Yipin, Yongjia, QTF, Chenhe,
Sea-line, and Shanghai LJ.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (NME) country. In
accordance with section 771(18)(c)(i) of the Act, any determination
that a foreign country is an NME country shall remain in effect until
revoked by the administering authority. See, e.g., Brake Rotors From
[[Page 80461]]
the People's Republic of China: Final Results and Partial Rescission of
the 2004/2005 Administrative Review and Notice of Rescission of 2004/
2005 New Shipper Review, 71 FR 66304 (November 14, 2006). None of the
parties to this proceeding have contested such treatment. Accordingly,
we calculated NV in accordance with section 773(c) of the Act, which
applies to NME countries.
Separate Rates
As noted above, designation of a country as an NME remains in
effect until it is revoked by the Department. See section 771(18)(c)(i)
of the Act. Accordingly, there is a rebuttable presumption that all
companies within the PRC are subject to government control and, thus,
should be assessed a single antidumping duty rate.
It is the Department's standard policy to assign all exporters of
the merchandise subject to review in NME countries a single rate unless
an exporter can affirmatively demonstrate an absence of government
control, both in law (de jure) and in fact (de facto), with respect to
its exports. To establish whether a company is sufficiently independent
to be eligible for a separate, company-specific rate, the Department
analyzes each exporting entity in an NME country under the test
established in the Final Determination of Sales at Less than Fair
Value: Sparklers From the People's Republic of China, 56 FR 20588 (May
6, 1991) (Sparklers), as amplified by the Notice of Final Determination
of Sales at Less Than Fair Value: Silicon Carbide From the People's
Republic of China, 59 FR 22585 (May 2, 1994) (Silicon Carbide).
In the Initiation Notice, the Department stated that all firms that
wish to qualify for separate-rate status in the administrative reviews
involving NME countries must complete, as appropriate, either a
separate-rate application or certification, as described below. For
these administrative reviews, in order to demonstrate separate-rate
eligibility, the Department requires entities for which a review was
requested, that were assigned a separate rate in the most recent
segment of this proceeding in which they participated, to certify that
they continue to meet the criteria for obtaining a separate rate. In
this administrative review, Farmlady, QXF, Longtai, and Hongqiao each
submitted a separate-rate certification. Although Shenzhen Xinboda did
not submit a separate rate certification, as a cooperating mandatory
respondent, it did answer all the separate rate questions in our
questionnaires. As such, Shenzhen Xinboda, Farmlady, QXF, Longtai, and
Hongqiao each provided company-specific information and each stated
that it met the criteria for the assignment of a separate rate. We
considered whether Shenzhen Xinboda, Farmlady, QXF, Longtai, and
Hongqiao were eligible for a separate rate.
The Department's separate-rate status test to determine whether the
exporter is independent from government control does not consider, in
general, macroeconomic/border-type controls (e.g., export licenses,
quotas, and minimum export prices), particularly if these controls are
imposed to prevent dumping. The test focuses, rather, on controls over
the investment, pricing, and output decision-making process at the
individual firm level. See Notice of Final Determination of Sales at
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From
Ukraine, 62 FR 61754, 61758 (November 19, 1997), and Tapered Roller
Bearings and Parts Thereof, Finished and Unfinished, From the People's
Republic of China; Final Results of Antidumping Administrative Review,
62 FR 61276, 61279 (November 17, 1997).
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies.
Shenzhen Xinboda, Farmlady, QXF, Longtai, and Hongqiao each
certified that, consistent with the most recent segment of this
proceeding in which it participated and was granted a separate rate,
there is an absence of de jure government control of its exports.\8\
Each of these companies certified to its separate-rate status, and
stated, where applicable, that the company had no relationship with any
level of the PRC government with respect to ownership, internal
management, and business operations. In this segment, we have no new
information on the record that would cause us to reconsider the
previous de jure control determinations with regard to these companies.
Thus, we find that evidence on the record supports a preliminary
finding of an absence of de jure government control with regard to the
export activities of Shenzhen Xinboda, Farmlady, QXF, Longtai, and
Hongqiao.
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\8\ The most recently completed segment of this proceeding in
which Xintianfeng and Hongqiao participated and were granted
separate rate status was 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). The most
recently completed segment of this proceeding in which Longtai and
Farmlady participated and was granted separate rate status was Fresh
Garlic from the People's Republic of China: Final Results and
Partial Rescission of the 12th Administrative Review, 73 FR 34251
(June 17, 2008).
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B. Absence of De Facto Control
As stated in previous cases, there is evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Silicon Carbide, 59 FR at 22586-87. Therefore, the Department has
determined that an analysis of de facto control is critical in
determining whether the respondents are, in fact, subject to a degree
of government control which would preclude the Department from
assigning separate rates.
The absence of de facto government control over exports is based on
whether a company: (1) Sets its own export prices independent of the
government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See, e.g., Silicon
Carbide, 59 FR at 22587, and Sparklers, 56 FR at 20589; see also Notice
of Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May 8,
1995).
Shenzhen Xinboda, Farmlady, QXF, Longtai, and Hongqiao each timely
submitted a certification of its separate-rate eligibility which stated
that, as with the previous period where each company was granted a
separate rate; there is an absence of de facto government control of
each company's exports. Their separate rate certifications, stated,
where applicable, that they had no relationship with any level of the
PRC government with respect to ownership, internal management, and
business operations. In this segment, we have no new information on the
record that would cause us to reconsider the previous period's de facto
control determinations with regard to these companies. Therefore, the
Department preliminarily finds that Shenzhen Xinboda, Farmlady, QXF,
Longtai, and Hongqiao have established, prima facie, that they qualify
for separate rates under the
[[Page 80462]]
criteria established by Silicon Carbide and Sparklers.
Surrogate Country
When the Department investigates imports from an NME country,
section 773(c)(1) of the Act directs it to base NV on the NME
producer's factors of production (FOPs), valued in a surrogate market
economy country or countries considered to be appropriate by the
Department. In accordance with section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize, to the extent possible, the
prices or costs of FOPs in one or more market economy countries that
are: (1) At a level of economic development comparable to that of the
NME country; and (2) significant producers of comparable merchandise.
Moreover, it is the Department's practice to select an appropriate
surrogate country based on the availability and reliability of data
from the countries. See Department Policy Bulletin No. 04.1: Non-Market
Economy Surrogate Country Selection Process (March 1, 2004) (Policy
Bulletin).
As discussed in the ``Non-Market Economy Country Status'' section
above, the Department considers the PRC to be an NME country. Pursuant
to section 773(c)(4) of the Act, the Department determined that India,
Philippines, Indonesia, Thailand, Ukraine, and Peru are countries
comparable to the PRC in terms of economic development. See Memorandum
to All Interested Parties Re: 15th Administrative Review of Fresh
Garlic from the People's Republic of China (July 20, 2010) at
Attachment 1.
Also, in accordance with section 773(c)(4) of the Act, the
Department has found that India is a significant producer of comparable
merchandise. Moreover, the Department finds India to be a reliable
source for surrogate values (SVs) because India is at a similar level
of economic development, is a significant producer of comparable
merchandise, and has publicly available and reliable data. Furthermore,
the Department notes that India has been the primary surrogate country
in past segments of this proceeding, and the only SV data submitted on
the record are from Indian sources. Given the above facts, the
Department has selected India as the primary surrogate country for this
review. The sources of the SVs are discussed under the ``Normal Value''
section below and in the Memorandum from Scott Lindsay, Re: Preliminary
Results of the 2008-2009 Administrative Review of Fresh Garlic from the
People's Republic of China: Surrogate Values Memorandum (December 7,
2010) (SV Memorandum). No parties submitted comments concerning
selection of the surrogate country.
U.S. Price
In accordance with section 772(a) of the Act, we calculated export
prices (EP) for Shenzhen Xinboda's sales to the United States because
they were made to unaffiliated parties before the date of importation.
We calculated Shenzhen Xinboda's EP based on its price to unaffiliated
purchasers in the United States. In accordance with section 772(c) of
the Act, where appropriate, we deducted movement expenses (e.g. foreign
inland freight, international freight, brokerage and handling, marine
insurance, warehousing, and U.S. customs duties) from the starting
price to unaffiliated purchasers. For the expenses that were either
provided by an NME vendor or paid for with an NME currency, we used SVs
as appropriate. See the ``Factor Valuations'' section below for details
regarding the SV for movement expenses.
Normal Value
A. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine NV using an FOP methodology if the merchandise is exported
from an NME country and the information does not permit the calculation
of NV using home-market prices, third-country prices, or constructed
value under section 773(a) of the Act. The Department calculates NV
using each of the FOPs that a respondent consumes in the production of
a unit of the subject merchandise because the presence of government
controls on various aspects of NMEs renders price comparisons and the
calculation of production costs invalid under the Department's normal
methodologies. However, there are circumstances in which the Department
will modify its standard FOP methodology, choosing to apply SVs to an
intermediate input instead of the individual FOPs used to produce that
intermediate input. In some cases, a respondent may report factors used
to produce an intermediate input that accounts for an insignificant
share of total output. When the potential increase in accuracy to the
overall calculation that results from valuing each of the FOPs is
outweighed by the resources, time, and burden such an analysis would
place on all parties to the proceeding, the Department has valued the
intermediate input directly using SVs. See, e.g., Notice of Final
Determination of Sales at Less Than Fair Value: Polyvinyl Alcohol from
the People's Republic of China, 68 FR 47538 (August 11, 2003), and
accompanying Issues and Decision Memorandum at Comment 1 (PVA) (citing
to Final Results of First New Shipper Review and First Antidumping Duty
Administrative Review: Certain Preserved Mushrooms From the People's
Republic of China, 66 FR 31204 (June 11, 2001)).
For the final results of several prior administrative reviews (ARs)
and new shipper reviews (NSRs) under the garlic order,\9\ the
Department found that garlic industry producers in the PRC do not
generally track actual labor hours incurred for growing, tending, and
harvesting activities and, thus, do not maintain appropriate records
which would allow most, if not all, respondents to quantify, report,
and substantiate this information. In the preliminary results of the
eleventh AR and NSRs, the Department also stated that ``should a
respondent be able to provide sufficient factual evidence that it
maintains the necessary information in its internal books and records
that would allow us to establish the completeness and accuracy of the
reported FOPs, we will revisit this issue and consider whether to use
its reported FOPs in the calculation of NV.'' See Fresh Garlic from the
People's Republic of China: Partial Rescission and Preliminary Results
of the Eleventh Administrative Review and New Shipper Reviews, 71 FR
71510, 71520 (December 11, 2006).
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\9\ See e.g., Fresh Garlic from the People's Republic of China:
Final Results and Partial Rescission of the Eleventh Administrative
Review and New Shipper Reviews, 72 FR 34438 (June 22, 2007); Fresh
Garlic from the People's Republic of China: Final Results and
Partial Rescission of the 12th Administrative Review, 73 FR 34251
(June 17, 2008) (12th AR); Fresh Garlic from the People's Republic
of China: Final Results and Rescission, In Part, of Twelfth New
Shipper Reviews, 73 FR 56550 (September 29, 2008); and 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) (13th
Administrative Review).
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In the course of this review, Zhengzhou Dadi Garlic Industry Co.,
Ltd. (Zhengzhou Dadi), Shenzhen Xinboda's producer, did not report FOPs
related to growing whole garlic bulbs. As such, for the reasons
outlined in the Memorandum from Scott Lindsay, Re: 15th Administrative
Review of Fresh Garlic from the People's Republic of China:
Intermediate Input Methodology (December 7, 2010) (Intermediate Input
Methodology Memorandum), the Department is applying an ``intermediate-
input product valuation methodology'' to calculate Shenzhen Xinboda's
NV. Using this methodology,
[[Page 80463]]
the Department calculated NV by starting with an SV for the garlic bulb
(i.e., the ``intermediate product''), adjusting for yield losses during
the processing stages, and adding Shenzhen Xinboda's costs, which were
calculated using its reported usage rates for processing fresh garlic.
See Intermediate Input Methodology Memorandum.
B. Factor Valuations
In accordance with section 773(c) of the Act, the Department
calculated NV based on the FOP data reported by Shenzhen Xinboda for
the POR. We relied on the factor-specific data submitted by Shenzhen
Xinboda for the production inputs in their questionnaire responses,
where applicable, for purposes of selecting SVs. To calculate NV, the
Department multiplied the reported per-unit factor consumption rates by
publicly available India SVs.
In selecting the SVs, consistent with our past practice, the
Department considered the quality, specificity, and contemporaneity of
the data. See, e.g., Folding Metal Tables and Chairs from the People's
Republic of China; Final Results of Antidumping Duty Administrative
Review, 71 FR 71509 (December 11, 2006), and accompanying Issues and
Decision Memorandum at Comment 9. As appropriate, the Department
adjusted input prices by including freight costs to make them delivered
prices. Specifically, the Department added to the SVs, as appropriate,
a surrogate freight cost using the shorter of the reported distance
from the domestic suppliers to the factory or the distance from the
nearest seaport to the factory. This adjustment is in accordance with
the decision of the U.S. Court of Appeals for the Federal Circuit
(CAFC). See Sigma Corp. v. United States, 117 F.3d 1401, 1408 (Fed.
Cir. 1997). Where necessary, we adjusted the SVs for inflation/
deflation using the Wholesale Price Index (WPI) as published in the
International Monetary Fund's International Financial Statistics,
available at http://ifs.apdi.net/imf. For more information regarding
the Department's valuation for the various FOPs, see SV Memorandum.
Garlic Bulb Valuation
The Department's practice when selecting the ``best available
information'' for valuing FOPs, in accordance with section 773(c)(1) of
the Act,\10\ is to select, to the extent practicable, SVs which are
publicly available, product-specific, representative of a broad market
average, tax-exclusive and contemporaneous with the POR. See e.g.,
Final Determination of Sales at Less Than Fair Value: Certain Artist
Canvas from the People's Republic of China, 71 FR 16116 (March 30,
2006) and accompanying Issues and Decision Memorandum at Comment 2.
---------------------------------------------------------------------------
\10\ Section 773(c)(1)(B) of the Act states that ``the valuation
of the factors of production shall be based on the best available
information regarding the values of such factors in a market economy
country or countries considered to be appropriate by the
administering authority.''
---------------------------------------------------------------------------
As discussed above, the Department is applying an intermediate
input methodology for Shenzhen Xinboda. Therefore, we sought to
identify the best available SV for the garlic bulb input into
production. See Petitioners' Submission Concerning Surrogate Values for
Factors of Production and Shenzhen Xinboda's Surrogate Value
Submission; see also, SV Memorandum. For the preliminary results of
this review, we find that data from the Azadpur APMC's ``Market
Information Bulletin'' are the most appropriate information available
to value Shenzhen Xinboda's garlic bulb input.
In its responses to the first and second supplemental
questionnaires, Shenzhen Xinboda stated that its ``document system,
including inventory system and accounting system, does not record the
different sizes of garlic bulbs;'' and ``normally uses garlic bulbs of
5 cm to 5.5 cm for the production of peeled garlic.'' Consistent with
our findings in the twelfth AR, the Department continues to find that
garlic bulb sizes that range from 55 mm and above are Grade Super-A,
and garlic bulb sizes that range between 40 mm and 55 mm are Grade A
and Grade Super-A. We have used Grade A and Grade Super A for garlic
bulb valuation. See SV Memorandum. Because the Grade Super-A prices
reported by the APMC which are on the record of this review are from
2007-2008, we inflated them to make them contemporaneous to our POR.
See SV Memorandum.
Other Factors of Production
In past cases, it has been the Department's practice to value
various FOPs using import statistics of the primary selected surrogate
country from World Trade Atlas (WTA), as published by Global Trade
Information Services (GTIS). See Certain Preserved Mushrooms From the
People's Republic of China: Preliminary Results of Antidumping Duty New
Shipper Review, 74 FR 50946, 50950 (October 2, 2009) (unchanged in
Certain Preserved Mushrooms From the People's Republic of China: Final
Results of Antidumping Duty New Shipper Review, 74 FR 65520 (December
10, 2009)). However, in October 2009, the Department learned that
Indian import data obtained from the WTA, as published by GTIS, began
identifying the original reporting currency for India as the U.S.
Dollar. The Department then contacted GTIS about the change in the
original reporting currency for India from the Indian Rupee to the U.S.
Dollar. Officials at GTIS explained that while GTIS obtains data on
imports into India directly from the Ministry of Commerce, Government
of India, as denominated and published in Indian Rupees, the WTA
software is limited with regard to the number of significant digits it
can manage. Therefore, GTIS made a decision to change the original
reporting currency for Indian data from the Indian Rupee to the U.S.
Dollar in order to reduce the loss of significant digits when obtaining
data through the WTA software. GTIS explained that it converts the
Indian Rupee to the U.S. Dollar using the monthly Federal Reserve
exchange rate applicable to the relevant month of the data being
downloaded and converted. See Certain Oil Country Tubular Goods from
the People's Republic of China: Final Determination of Sales at Less
Than Fair Value, Affirmative Final Determination of Critical
Circumstances and Final Determination of Targeted Dumping, 75 FR 20335
(April 19, 2010), and accompanying Issues and Decision Memorandum at
Comment 4.
However, the data reported in the Global Trade Atlas (GTA) software
published by GTIS reports import statistics, such as those from India,
in the original reporting currency and, thus, these data correspond to
the original currency value reported by each country. Additionally, the
data reported in the GTA software are reported to the nearest digit
and, thus, there is not a loss of data by rounding, as there is with
the data reported by the WTA software. Consequently, the Department has
obtained import statistics from GTA for valuing various FOPs because
the GTA import statistics are in the original reporting currency of the
country from which the data are obtained, and have the same level of
accuracy as the original data released.
Furthermore, with regard to the GTA Indian import-based SVs, in
accordance with the Omnibus Trade and Competitiveness Act of 1988
legislative history, the Department continues to apply its long-
standing practice of disregarding SVs if it has a reason to believe or
suspect the source data may
[[Page 80464]]
be subsidized.\11\ In this regard, the Department has previously found
that it is appropriate to disregard such prices from Indonesia, South
Korea and Thailand, because we have determined that these countries
maintain broadly available, non-industry specific export subsidies.
See, e.g., Certain Cut-to-Length Carbon-Quality Steel Plate From
Indonesia: Final Results of Expedited Sunset Review, 70 FR 45692
(August 8, 2005), and accompanying Issues and Decision Memorandum at 4;
Corrosion-Resistant Carbon Steel Flat Products From the Republic of
Korea: Final Results of Countervailing Duty Administrative Review, 74
FR 2512 (January 15, 2009), and accompanying Issues and Decision
Memorandum at 17, 19-20; and Final Affirmative Countervailing Duty
Determination: Certain Hot-Rolled Carbon Steel Flat Products From
Thailand, 66 FR 50410 (October 3, 2001), and accompanying Issues and
Decision Memorandum at 23. Based on the existence of these subsidy
programs that were generally available to all exporters and producers
in Indonesia, South Korea, and Thailand at the time of the POR, the
Department finds that it is reasonable to infer that all exporters from
these countries may have benefitted from these subsidies. We also
disregarded prices from NME countries \12\ and those imports that were
labeled as originating from an ``unspecified'' country from the average
Indian import values, because we could not be certain that they were
not from either an NME or a country with general export subsidies.
---------------------------------------------------------------------------
\11\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) at 590.
\12\ The NME countries are Armenia, Azerbaijan, Belarus,
Georgia, Kyrgyz Republic, Moldova, North Korea, the People's
Republic of China, Tajikistan, Turkmenistan, Uzbekistan, and
Vietnam.
---------------------------------------------------------------------------
We valued the packing material inputs using weighted-average unit
import values derived from the Monthly Statistics of the Foreign Trade
of India (MSFTI), as published by the Directorate General of Commercial
Intelligence and Statistics of the Ministry of Commerce and Industry,
Government of India, and compiled by the GTA.
The Department valued surrogate truck freight cost by using a per-
unit average rate calculated from April 2009 data on the following Web
site: http://www.infobanc.com/logistics/logtruck.htm. See Polyethylene
Retail Carrier Bags From the People's Republic of China: Preliminary
Results of Antidumping Duty Administrative Review, 73 FR 52282, 52286
(September 9, 2008) (unchanged in Polyethylene Retail Carrier Bags From
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 74 FR 6857 (February 11, 2009)); and SV
Memorandum at Attachment 9.
To value electricity, the Department used March 2008 electricity
price rates from Electricity Tariff & Duty and Average Rates of
Electricity Supply in India, published by the Central Electricity
Authority of the Government of India. Because these data are not
contemporaneous with the POR, we inflated March 2008 prices to make
them contemporaneous to our POR. See SV Memorandum.
We valued brokerage and handling expenses using a price list of
export procedures necessary to export a standardized cargo of goods in
India. The price list is compiled based on a survey case study of the
procedural requirements for trading a standard shipment of goods by
ocean transport in India that is published in Doing Business 2010:
India, published by the World Bank. See SV Memorandum.
The Department is continuing to evaluate options for determining
labor values in light of the recent Court of Appeals for the Federal
Circuit (CAFC) decision. See Dorbest Ltd. v. United States, 604 F.3d
1363, 1372 (Fed. Cir. 2010). For these preliminary results, we have
calculated an hourly wage rate to use in valuing respondent reported
labor input by averaging industry-specific earnings and/or wages in
countries that are economically comparable to the PRC and that are
significant producers of comparable merchandise.
For the preliminary results of this AR, the Department is valuing
labor using a simple average industry-specific wage rate using earnings
or wage data reported under Chapter 5B by the International Labor
Organization (ILO). To achieve an industry-specific labor value, we
relied on industry-specific labor data from the countries we determined
to be both economically comparable to the PRC, and significant
producers of comparable merchandise. Specifically, for this review, the
Department has calculated the wage rate using a simple average of the
data provided to the ILO under Sub-Classification 15 of the ISIC-
Revision 3 standard by countries determined to be both economically
comparable to the PRC and significant producers of comparable
merchandise. The Department finds the two-digit description under ISIC-
Revision 3 (``Manufacture of Food Products and Beverages'') to be the
best available wage rate SV on the record because it is specific and
derived from industries that produce merchandise comparable to the
subject merchandise. A full description of the industry-specific wage
rate calculation methodology is provided in the SV Memorandum.
Consequently, we averaged the ILO industry-specific wage rate data or
earnings data available from the following countries found to be
economically comparable to the PRC and to be significant producers of
comparable merchandise: Ecuador, Egypt, Indonesia, Jordan, Peru,
Philippines, Thailand, and Ukraine. Further information on the
calculation of the wage rate can be found in the SV Memorandum. The
resulting wage rate is $1.36.
Financial Ratios
Petitioners and Shenzhen Xinboda submitted factual information
regarding surrogate financial ratios. See Petitioners' Submission
Concerning Surrogate Values for Factors of Production and Shenzhen
Xinboda's Surrogate Value Submission. After analyzing these comments
and factual information, the Department has preliminarily determined
that it is appropriate to calculate a single set of surrogate financial
ratios applicable to the production and sales of all subject
merchandise (both whole and peeled garlic) for these preliminary
results using both Tata Tea Ltd.'s (Tata Tea) and Limtex Ltd.'s
(Limtex) financial data. Since the 2002-2003 administrative review, the
Department has considered tea processing to be sufficiently similar to
garlic processing in that neither product is highly processed or
preserved prior to sale. See Fresh Garlic From the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 70 FR
34082 (June 13, 2005), and accompanying Issues and Decision Memorandum
at 34-35. Moreover, we note that it is the Department's preference to
use financial data from more than one surrogate producer to reflect the
broader experience of the surrogate industry. See, e.g., Brake Rotors
From the People's Republic of China: Final Results and Partial
Rescission of the Sixth Antidumping Duty Administrative Review and
Final Results of the Ninth New Shipper Review, 69 FR 42039 (July 13,
2004), and accompanying Issues and Decision Memorandum at Comment 2;
see also Final Results of First New Shipper Review and First
Antidumping Duty Administrative Review: Certain Preserved Mushrooms
From the People's Republic of China, 66 FR 31204 (June 11, 2001), and
accompanying Issues and Decision Memorandum at Comment 3,
[[Page 80465]]
and Certain Oil Country Tubular Goods From the People's Republic of
China: Final Determination of Sales at Less Than Fair Value,
Affirmative Final Determination of Critical Circumstances and Final
Determination of Targeted Dumping, 75 FR 20335 (April 19, 2010), and
accompanying Issues and Decision Memorandum at Comment 13. We find that
calculating an average of these two Indian tea processors' data
provides financial ratios that best reflect the broader experience of
the garlic industry and that are consistent with our practice during
previous reviews. See Fresh Garlic From the People's Republic of China:
Final Results of New Shipper Review, 75 FR 61130 (October 4, 2010), and
accompanying Issues and Decision Memorandum at Comment 4. The
Department finds that both Tata Tea's and Limtex's non-integrated
production process is similar to that of the garlic industry. We find
that the resulting financial ratios from the average of Tata Tea's and
Limtex's financial data provide the best surrogate for the garlic
industry in the PRC as a whole, based on the information on the record
of this review. See SV Memorandum.
Margin for the Separate Rate Companies
As discussed above, the Department has preliminarily determined
that Farmlady, QXF, Longtai, and Hongqiao have demonstrated their
eligibility for separate rate status. The statute and the Department's
regulations do not address the establishment of a rate to be applied to
individual companies not selected for examination where the Department
limited its examination in an administrative review pursuant to section
777A(c)(2) of the Act. Generally, we have looked to section 735(c)(5)
of the Act, which provides instructions for calculating the all-others
rate in an investigation, for guidance when calculating the rate for
respondents we did not examine in an administrative review. For the
exporters subject to a review that were determined to be eligible for
separate rate status, but were not selected as mandatory respondents,
the Department generally weight-averages the rates calculated for the
mandatory respondents, excluding any rates that are zero, de minimis,
or based entirely on facts available (FA). See, e.g., Wooden Bedroom
Furniture From the People's Republic of China: Preliminary Results of
Antidumping Duty Administrative Review, Preliminary Results of New
Shipper Review and Partial Rescission of Administrative Review, 73 FR
8273, 8279 (February 13, 2008) (unchanged in Wooden Bedroom Furniture
From the People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August 20,
2008)). For this administrative review, the Department has calculated a
positive margin for the single mandatory respondent, Shenzhen Xinboda.
Accordingly, for the preliminary results, consistent with our practice,
the Department has preliminarily determined that the margin to be
assigned to Farmlady, QXF, Longtai, and Hongqiao should be the rate
calculated for the single mandatory respondent, Shenzhen Xinboda.
PRC-Wide Entity
The Initiation Notice states ``{F{time} or 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.'' Shenzhen Greening, who after timely submitting separate
rate documents did not respond to the initial questionnaire, will
remain part of the PRC-wide entity. Tianma Freezing, who also did not
respond to the initial questionnaire, will remain part of the PRC-wide
entity. In addition, the Initiation Notice specifically initiated
reviews by name for 16 companies which were not selected as mandatory
respondents and which did not submit separate rate documentation. The
Department finds these companies failed to demonstrate their
eligibility for separate rate status. Accordingly, the Department
considers these companies part of the PRC-wide entity. See Attachment
III.
Facts Otherwise Available and Adverse Facts Available
Sections 776(a)(1) and (2) of the Act provide that, if necessary
information is not available on the record, or if an interested party
or any other person (A) withholds information that has been requested
by the administering authority; (B) fails to provide such information
in a timely matter or in the form or manner requested subject to
subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a
proceeding under the antidumping statute; or (D) provides such
information but the information cannot be verified as provided in
section 782(i) of the Act, the administering authority shall, subject
to section 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
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 shall promptly inform the party submitting
the response of the nature of the deficiency and shall, to the extent
practicable, provide that party with an opportunity to remedy or
explain the deficiency. Section 782(d) of the Act additionally states
that if the party submits further information that is unsatisfactory or
untimely, the administering authority may, subject to subsection (e),
disregard all or part of the original and subsequent responses. 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 the applicable
requirements established by the administering authority if: (1) The
information is submitted by the deadline established for its
submission; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in providing the information
and meeting the requirements established by the administering authority
with respect to the information; and (5) the information can be used
without undue difficulties.
Section 776(b) of the Act further provides that, if the Department
finds that an interested party has failed to comply by not acting to
the best of its ability to comply with a request of information, the
Department may use an adverse inference in selecting from among the
facts otherwise available. Section 776(b) of the Act also authorizes
the Department to use as AFA information derived from the petition, the
final determination, a previous administrative review, or other
information placed on the record.
For the reasons discussed below, the Department preliminarily
determines that, in accordance with sections 776(a)(1), 776(a)(2) and
776(b) of the Act, the use of AFA is appropriate for the preliminary
results with respect to the PRC-wide entity, which includes Shenzhen
Greening and Tianma Freezing.
Shenzhen Greening and Tianma Freezing were selected as mandatory
respondents, but neither responded to the initial questionnaire. Thus,
the information necessary for the Department to conduct its analysis is
not available in the record. Moreover, the decision by these companies
to not respond to the initial questionnaire constitutes a refusal to
provide the
[[Page 80466]]
Department with information necessary to conduct its antidumping
analysis. See Sections 776(a)(2)(A) and (B) of the Act. As these
companies have withheld necessary information that has been requested
by the Department, the Department shall, pursuant to sections
776(a)(1), (a)(2)(A), and (a)(2)(B) of the Act, use facts otherwise
available to reach the applicable determination.
In addition, because Shenzhen Greening and Tianma Freezing did not
respond to the initial questionnaire and did not request any extension,
the Department finds that each of these companies has failed to
cooperate by not acting to the best of its ability to comply with the
Department's request for information. By withholding the requested
information, these companies prevented the Department from conducting
any company-specific analysis or calculating dumping margins for the
POR. Therefore, pursuant to section 776(b) of the Act, the Department
preliminarily determines that an inference that is adverse to the
interests of Shenzhen Greening and Tianma Freezing is warranted.
Because we have determined Shenzhen Greening and Tianma Freezing to
be part of the PRC-wide entity, the PRC-wide entity is now under
review. The Department preliminarily finds that the PRC-wide entity did
not respond to the Department's request for information and that
necessary information is not available on the record. Moreover, the
Department preliminarily finds that the PRC-wide entity significantly
impeded the proceeding by withholding information and failing to
respond to the Department's request for information within the
specified deadlines. Therefore, pursuant to sections 776(a)(1) and
(a)(2) of the Act, the Department preliminarily determines that the
application of facts otherwise available is warranted for the PRC-wide
entity.
In addition, because Shenzhen Greening and Tianma Freezing failed
to cooperate by not acting to the best of its ability, the PRC-wide
entity did not provide the requested information, which was in the sole
possession of the respondents and could not be obtained otherwise.
Pursuant to section 776(b) of the Act, we preliminarily determine that
in selecting from among the facts otherwise available, an adverse
inference is warranted for the PRC-wide entity. By using an inference
that is adverse to the interests of the PRC-wide entity, we ensure the
companies that are part of the PRC-wide entity will not obtain a more
favorable result by failing to cooperate than had they cooperated fully
in this review.
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c) authorize the Department to 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. In reviews, the Department normally
selects, as AFA, the highest rate on the record of any segment of the
proceeding. See, e.g., Freshwater Crawfish Tail Meat from the People's
Republic of China; Notice of Final Results of Antidumping Duty
Administrative Review, 68 FR 19504, 19506 (April 21, 2003). The U.S.
Court of International Trade (CIT) and the CAFC have consistently
upheld the Department's practice in this regard. See Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Circ. 1990) (Rhone
Poulenc); NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT
2004) (upholding a 73.55 percent total AFA rate, the highest available
dumping margin from a different respondent in a less-than-fair-value
investigation); see also Kompass Food Trading Int'l v. United States,
24 CIT 678, 683-84 (2000) (upholding a 51.16 percent total AFA rate,
the highest available dumping margin from a different, fully
cooperative respondent); and Shanghai Taoen International Trading Co.,
Ltd. v. United States, 360 F. Supp. 2d 1339, 1348 (CIT 2005) (upholding
a 223.01 percent total AFA rate, the highest available dumping margin
from a different respondent in a previous administrative review).
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
``sufficiently adverse so as to effectuate the statutory purposes of
the adverse facts available rule to induce respondents to provide the
Department with complete and accurate information in a timely manner.''
See Notice of Final Determination of Sales at Less Than Fair Value:
Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909,
8932 (February 23, 1998). The Department's practice also ensures ``that
the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' See Statement of
Administrative Action Accompanying the Uruguay Round Agreements Act,
H.R. Rep. No. 103-316, Vol. 1, at 870 (1994) (SAA); see also Notice of
Final Determination of Sales at Less Than Fair Value: Certain Frozen
and Canned Warmwater Shrimp From Brazil, 69 FR 76910, 76912 (December
23, 2004). In choosing the appropriate balance between providing
respondents 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.'' See Rhone Poulenc, 899 F.2d at 1190.
Consistent with the statute, court precedent, and its normal
practice, the Department has preliminarily assigned the rate of $4.71
per kilogram, the highest rate determined in any segment of this
proceeding, to the PRC-wide entity, which includes the companies named
in Attachment III. See 13th Administrative Review. As discussed further
in the ``Corroboration of Secondary Information Used as Adverse Facts
Available'' section below, this rate has been corroborated.
Corroboration of Secondary Information Used as Adverse Facts Available
Section 776(c) of the Act provides that, where the Department
selects from among the facts otherwise available and relies on
``secondary information,'' the Department shall, to the extent
practicable, corroborate that information from independent sources
reasonably at the Department's disposal. Secondary information is
described in the SAA as ``{i{time} nformation derived from the petition
that gave rise to the investigation or review, the final determination
covering the subject merchandise, or any previous review under section
751 concerning the subject merchandise.'' See SAA at 870. The SAA
states that ``corroborate'' means to determine that the information
used has probative value. Id. The Department has determined that to
have probative value, information must be reliable and relevant. See,
e.g., 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 Outside Diameter, and Components
Thereof, From Japan; Final
[[Page 80467]]
Results of Antidumping Duty Administrative Reviews and Termination in
Part, 62 FR 11825 (March 13, 1997)). The SAA also states that
independent sources used to 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 or review. See SAA at 870; see also 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, 35629 (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 (March 11,
2005).
To be considered corroborated, information must be found to be both
reliable and relevant. Unlike other types of information, such as input
costs or selling expenses, there are no independent sources for
calculated dumping margins. The only sources for calculated margins are
administrative determinations. The per-unit AFA rate we are applying
for the current review was calculated using the ad valorem rate
contained in the petition in the original investigation of garlic from
the PRC and was applied as the per-unit AFA rate in the most recently
completed administrative reviews of this order. See, e.g., 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). Furthermore, no information has been
presented in the current review that calls into question the
reliability of this information. Thus, the Department finds that the
information is reliable.
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. See, e.g., Fresh Cut Flowers From Mexico; Final
Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814
(February 22, 1996). Similarly, the Department does not apply a margin
that has been discredited. 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). None of these unusual
circumstances are present with respect to the rate being used here.
Moreover, the rate selected, i.e., $4.71 per kilogram, is the rate
currently applicable to the PRC-wide entity. The Department assumes
that if an uncooperative respondent could have obtained a lower rate,
it would have cooperated. See Rhone Poulenc, 899 F.2d at 1190-91 and Ta
Chen Stainless Steel Pipe, Inc. v. United States, 24 CIT 841, 848
(2000) (respondents should not benefit from failure to cooperate). As
there is no information on the record of this review that demonstrates
that this rate is not appropriate to use as AFA for the PRC-wide entity
in the current review, we determine that this rate has relevance.
As this AFA 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 (i.e., that it has probative
value).
Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, based on the exchange rates in effect on
the dates of the U.S. sales, as certified by the Federal Reserve Bank.
See http://www.ia.ita.doc.gov/exchange/index.html.
Verification
Following the publication of these preliminary results, we intend
to verify, as provided in section 782(i)(3) of the Act, sales and FOP
information submitted by the Shenzhen Xinboda, as appropriate. At
verification, we will use standard verification procedures, including
on-site inspection of the manufacturer's facilities, the examination of
relevant sales and financial records, and the selection of original
source documentation containing relevant information. We will prepare
verification reports outlining our verification results and place these
reports on file in the Central Records Unit, room 7046 of the main
Commerce building.
Preliminary Results of Review
As a result of our review, we preliminarily determine that the
following margins exist for the period November 1, 2008 through October
31, 2009:
Fresh Garlic From the PRC 2008-2009 Administrative Review
------------------------------------------------------------------------
Weighted-average
Manufacturer/exporter margin (dollars per
kilogram)
------------------------------------------------------------------------
Shenzhen Xinboda Industrial Co., Ltd........... $0.72
Jinan Farmlady Trading Co., Ltd................ 0.72
Qingdao Xintianfeng Foods Co., Ltd............. 0.72
Shandong Longtai Fruits and Vegetables Co., 0.72
Ltd...........................................
Weifang Hongqiao International Logistic Co., 0.72
Ltd...........................................
PRC-wide Entity (see Attachment III)........... 4.71
------------------------------------------------------------------------
Assessment Rates
The Department will instruct U.S. Customs and Border Protection
(``CBP'') to assess antidumping duties on all appropriate entries. For
the companies listed above which had a separate rate granted in a
previously completed segment of this proceeding that was in effect
during the instant review period, antidumping duties shall be assessed
on entries subject to the separate rate 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 appropriate
assessment instructions for such companies directly to CBP 15 days
after the publication of this notice in the Federal Register. For any
of the companies listed above that do not currently have a separate
rate (and thus remain a part of the PRC-wide entity), the Department
will issue assessment instructions upon the
[[Page 80468]]
completion of this administrative review.
Consistent with the final results of Garlic 14, 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. Specifically, we will divide the total
dumping margins for each importer by 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 Garlic 14, we will establish
and collect a per-kilogram cash-deposit amount which will be equivalent
to the company-specific dumping margin published in the final results
of this review. Specifically, 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 exported by Shenzhen Xinboda, the cash deposit rate
will be the per-unit rate determined in the final results of this
administrative review and; (2) for subject merchandise exported by
Farmlady, QXF, Longtai, or Hongqiao, the cash deposit rates will be the
per-unit rate determined in the final results of this administrative
review; (3) for subject merchandise exported by PRC exporters subject
to this administrative review that have not been found to be entitled
to a separate rate (see Attachment III), the cash deposit rate will be
the per-unit PRC-wide rate determined in the final results of
administrative review; (4) for subject merchandise exported by all
other PRC exporters that have not been found to be entitled to a
separate rate, the cash deposit rate will be the per-unit PRC-wide rate
determined in the final results of administrative review; (5) for
previously-investigated or previously-reviewed PRC and non-PRC
exporters who received a separate rate in a prior segment of the
proceeding and which were not under review in this segment of the
proceeding, the cash deposit rate will continue to the rate assigned in
that prior segment of the proceeding; (6) the cash deposit rate for
non-PRC exporters of subject merchandise which have not received their
own rate will be the rate applicable to the PRC exporter that supplied
that non-PRC exporter. These requirements, when imposed, shall remain
in effect until further notice.
Disclosure
We will disclose the calculations used in our analysis to parties
to this proceeding not later than ten days after the date of public
announcement, or if there is no public announcement within five days of
the date of publication of this notice. See 19 CFR 351.224(b).
Comments
Interested parties are invited to comment on the preliminary
results and may submit case briefs and/or written comments within 30
days of the date of publication of this notice, unless otherwise
notified by the Department. See 19 CFR 351.309(c)(ii). Rebuttal briefs,
limited to issues raised in the case briefs, will be due five days
later, pursuant to 19 CFR 351.309(d). Parties who submit case or
rebuttal briefs in this proceeding are requested to submit with each
argument: (1) A statement of the issue; and (2) a brief summary of the
argument. Parties are requested to provide a summary of the arguments
not to exceed five pages and a table of statutes, regulations, and
cases cited. Additionally, parties are requested to provide their case
and rebuttal briefs in electronic format (e.g., preferably Microsoft
Word or Adobe Acrobat).
Interested parties who wish to request a hearing, or to participate
if one is requested, must submit a written request to the Assistant
Secretary for Import Administration within 30 days of the date of
publication of this notice. Requests should contain: (1) The party's
name, address, and telephone number; (2) the number of participants;
and (3) a list of issues to be discussed. See 19 CFR 351.310(c). Issues
raised in the hearing will be limited to those raised in case and
rebuttal briefs. The Department will issue the final results of this
review, including the results of its analysis of issues raised in any
such written briefs not later than 90 days after these preliminary
results are issued, unless the final results are extended. See 19 CFR
351.241(i).
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 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: December 17, 2010.
Paul Piquado,
Acting Deputy Assistant Secretary for Import Administration.
Attachment I
Companies Being Rescinded
The following companies were named in our Initiation Notice.
Subsequently, interested parties withdrew all relevant requests for
review for these companies. Therefore, pursuant to 19 CFR
351.213(d)(1), we are rescinding this administrative review with
respect to these companies.
1. American Pioneer Shipping
2. Anhui Dongqian Foods Ltd.
3. Anqiu Haoshun Trade Co., Ltd.
4. APS Qingdao
5. Chiping Shengkang Foodstuff Co., Ltd.
6. Hangzhou Guanyu Foods Co., Ltd.
7. Henan Weite Industrial Co., Ltd.
8. Hongqiao International Logistics Co.
9. IT Logistics Qingdao Branch
10. Jinan Solar Summit International Co., Ltd.
11. Jining Highton Trading Co., Ltd.
12. Jining Jiulong International Trading Co., Ltd.
13. Jining Tiankuang Trade Co., Ltd.
14. Jinxiang County Huaguang Food Import & Export Co., Ltd.\13\
---------------------------------------------------------------------------
\13\ f/k/a Jinxian County Huaguang Food Import & Export Co.,
Ltd. in the Initiation Notice.
---------------------------------------------------------------------------
15. Jinxiang Dacheng Food Co., Ltd.
16. Jinxiang Fengsheng Import & Export Co., Ltd.
17. Jinxiang Jinma Fruits Vegetables Products Co., Ltd.
18. Jinxiang Tianheng Trade Co., Ltd.
19. Juye Homestead Fruits and Vegetables Co., Ltd.
20. Kingwin Industrial Co., Ltd.
21. Laiwu Fukai Foodstuff Co., Ltd.
22. Laizhou Xubin Fruits and Vegetables
23. Linyi City Heding District Jiuli Foodstuff Co.
24. Ningjin Ruifeng Foodstuff Co., Ltd.
25. Qingdao Apex Shipping Co., Ltd.
26. Qingdao Lianghe International Trade Co., Ltd.
27. Qingdao Sino-World International Trading Co., Ltd.
28. Qingdao Winner Foods Co., Ltd.
29. Qingdao Yuankang International
30. Rizhao Huasai Foodstuff Co., Ltd.
31. Samyoung America (Shanghai) Inc.
32. Shandong Chengshun Farm Produce Trading Co., Ltd.
[[Page 80469]]
33. Shandong China Bridge Imports
34. Shandong Dongsheng Eastsun Foods Co., Ltd.
35. Shandong Garlic Company
36. Shandong Jinxiang Zhengyang Import & Export Co., Ltd.
37. Shandong Sanxing Food Co., Ltd.
38. Shandong Xingda Foodstuffs Group Co., Ltd.
39. Shandong Yipin Agro (Group) Co., Ltd.
40. Shanghai Goldenbridge International Co., Ltd.
41. Shanghai Great Harvest International Co., Ltd.
42. T&S International, LLC
43. Taian Eastsun Foods Co., Ltd.
44. Taian Solar Summit Food Co., Ltd.
45. V.T. Impex (Shandong) Limited
46. Weifang Chenglong Import & Export Co., Ltd.
47. Weifang Naike Foodstuffs Co., Ltd.
48. WSSF Corporation (Weifang)
49. Xiamen Huamin Import Export Company
50. Xiamen Keep Top Imp. and Exp. Co., Ltd.
51. You Shi Li International Trading Co., Ltd.
52. Zhangzhou Xiangcheng Rainbow Greenland Food Co., Ltd.
53. Zhengzhou Harmoni Spice Co., Ltd.
54. Zhengzhou Yuanli Trading Co., Ltd.
Attachment II
Companies Subject to the Administrative Review
1. Anqiu Friend Food Co., Ltd.
2. Chengwu County Yuanxiang Industry & Commerce Co., Ltd.
3. Hebei Golden Bird Trading Co., Ltd.
4. Heze Ever-Best International Trade Co., Ltd. (f/k/a Shandong Heze
International Trade and Developing Company)
5. Jinan Farmlady Trading Co., Ltd.
6. Jinan Yipin Corporation Ltd.
7. Jining Yongjia Trade Co., Ltd.
8. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang
Eastward Shipping Import and Export Limited Company)
9. Jinxiang Hejia Co., Ltd.
10. Jinxiang Shanyang Freezing Storage Co., Ltd.
11. Jinxiang Tianma Freezing Storage Co., Ltd.
12. Linshu Dading Private Agricultural Products Co., Ltd.
13. Qingdao Saturn International Trade Co., Ltd.
14. Qingdao Sea-Line International Trading Co., Ltd.
15. Qingdao Tiantaixing Foods Co., Ltd.
16. Qingdao Xintianfeng Foods Co., Ltd.
17. Qufu Dongbao Import & Export Trade Co., Ltd.
18. Shandong Chenhe Int'l Trading Co., Ltd.
19. Shandong Longtai Fruits and Vegetables Co., Ltd.
20. Shandong Wonderland Organic Food Co., Ltd.
21. Shanghai Ever Rich Trade Company
22. Shanghai LJ International Trading Co., Ltd.
23. Shenzhen Fanhui Import & Export Co., Ltd.
24. Shenzhen Greening Trading Co., Ltd.
25. Shenzhen Xinboda Industrial Co., Ltd.
26. Taian Fook Huat Tong Kee Pte. Ltd.
27. Taiyan Ziyang Food Co., Ltd.
28. Weifang Hongqiao International Logistic Co., Ltd.
29. Weifang Shennong Foodstuff Co., Ltd.
30. XuZhou Simple Garlic Industry Co., Ltd.
Attachment III
Companies Under Review Subject to the PRC-Wide Rate
1. Anqiu Friend Food Co., Ltd.
2. Chengwu County Yuanxiang Industry & Commerce Co., Ltd.
3. Heze Ever-Best International Trade Co., Ltd. (f/k/a Shandong Heze
International Trade and Developing Company)
4. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang
Eastward Shipping Import and Export Limited Company)
5. Jinxiang Hejia Co., Ltd.
6. Jinxiang Shanyang Freezing Storage Co., Ltd.
7. Linshu Dading Private Agricultural Products Co., Ltd.
8. Qingdao Saturn International Trade Co., Ltd.
9. Qufu Dongbao Import & Export Trade Co., Ltd.
10. Shandong Wonderland Organic Food Co., Ltd.
11. Shanghai Ever Rich Trade Company
12. Shenzhen Fanhui Import & Export Co., Ltd.
13. Taian Fook Huat Tong Kee Pte. Ltd.
14. Taiyan Ziyang Food Co., Ltd.
15. Weifang Shennong Foodstuff Co., Ltd.
16. XuZhou Simple Garlic Industry Co., Ltd.
17. Jinxiang Tianma Freezing Storage Co., Ltd.
18. Shenzhen Greening Trading Co., Ltd.
[FR Doc. 2010-32166 Filed 12-21-10; 8:45 am]
BILLING CODE 3510-DS-P