[Federal Register Volume 59, Number 185 (Monday, September 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23767]
[[Page Unknown]]
[Federal Register: September 26, 1994]
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DEPARTMENT OF COMMERCE
[A-570-831]
Notice of Final Determination of Sales at Less Than Fair Value:
Fresh Garlic From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: September 26, 1994.
FOR FURTHER INFORMATION CONTACT: Jennifer Stagner, Office of
Antidumping Investigations, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-
1673.
Final Determination: We determine that fresh garlic from the People's
Republic of China (PRC) is being, or is likely to be, sold in the
United States at less than fair value, as provided in section 735 of
the Tariff Act of 1930, as amended (the Act). The estimated weighted-
average margin is shown in the ``Suspension of Liquidation'' section of
this notice.
Case History
Since the publication of our affirmative preliminary determination
on July 6, 1994 (59 FR 35310, July 11, 1994), no new information has
been added to the case record. No interested party has filed case or
rebuttal briefs or has requested a hearing.
On July 5, 1994, Global Trading Inc., an interested party in this
investigation, alleged that there are methodological errors in the
petition data regarding constructed value and U.S. price.
Scope of Investigation
The products covered by this investigation 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 subject merchandise is used principally as a food product and
for seasoning. The subject garlic is currently classifiable under
subheadings 0703.20.0000, 0710.80.7060, 0710.80.9750, 0711.90.6000, and
2005.90.9500 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
proceeding is dispositive.
Period of Investigation
The period of investigation (POI) is August 1, 1993, to January 31,
1994.
Best Information Available
The Department made the following efforts to obtain information
from PRC exporters in this investigation: In March 1994, we sent an
abbreviated section A questionnaire to the PRC Ministry of Foreign
Trade and Economic Cooperation (MOFTEC) and cables to the U.S.
Embassies in Beijing and Tokyo and the U.S. consulate in Hong Kong. In
April 1994, we sent an abbreviated section A questionnaire to the China
Chamber of Commerce of Imports & Exports of Foodstuffs, Native Produce,
and Animal By-products (China Chamber); since no response was received,
we made follow-up requests to MOFTEC, the U.S. Embassies in Beijing and
Tokyo, and the U.S. consulate in Hong Kong.
On May 11 and 12, 1994, the Department received information from
MOFTEC and the American Embassy in Beijing, respectively, containing
the names and addresses of 40 producers/exporters of the subject
merchandise in the PRC. On May 18, 1994, the Department sent 40
antidumping questionnaires to the named firms and to MOFTEC and the
China Chamber. On May 31, 1994 and June 21, 1994, we sent
questionnaires to two additional firms at their request.
The Department received partial questionnaire responses from only
nineteen companies. Of the nineteen companies, five firms stated that
they did not export the subject merchandise to the United States. Four
firms submitted limited information on the PRC garlic industry. Two
firms submitted limited information on their U.S. sales. Eleven firms
submitted critical circumstance data, and one firm stated that it could
not provide the requested information. No firm submitted factors of
production information or complete U.S. sales data, and no verification
was conducted. Given the lack of complete, usable questionnaire
responses, we determine, in accordance with section 776(c) of the Act,
that the use of best information available (BIA) is appropriate for
sales of the subject merchandise in this investigation.
In determining what to use as BIA, the Department follows a two-
tiered methodology. Under this methodology, the Department normally
assigns lower margins to those respondents who cooperated in an
investigation and margins based on more adverse assumptions for those
respondents who did not cooperate. (See Final Determination of Sales at
Less Than Fair Value: Antifriction Bearings, Other than Tapered Roller
Bearings, and Parts Thereof from the Federal Republic of Germany (54 FR
18992, May 3, 1994).)
In considering the application of BIA in this case, we have taken
into account that, in cases involving the PRC, the Department assigns a
single rate to all PRC exporters unless a company establishes that it
is entitled to a separate rate. (See Final Determination of Sales at
Less Than Fair Value: Silicon Carbide from the People's Republic of
China (59 FR 22585, May 2, 1994)). In this case, no company has
demonstrated that it should receive a separate rate. Consequently, all
of the companies must receive a single rate. Given that this single
rate includes non-respondent companies, we have followed our standard
practice and applied an adverse BIA rate, which is the highest margin
alleged in the petition (i.e., 376.67%). (See Initiation of Antidumping
Duty Investigation: Fresh Garlic from the People's Republic of China
(59 FR 9470, February 28, 1994).) This margin applies to all
manufacturers, producers and exporters of fresh garlic in the PRC.
Global Trading, Inc. (Global Trading), a U.S. importer of the
subject merchandise, challenged the Department's reliance on
petitioners' data. In particular, Global Trading questioned
petitioners' average yield per acre figure in the constructed value
calculation, based on its own research in China. Global Trading also
challenged petitioners' calculation of U.S. price as being ``far from
the actual'' price.
The Department's practice with respect to challenges to petition
data was outlined in the Administrative Review of Sales at Less Than
Fair Value: Steel Wire Rope from Mexico (SWR from Mexico) (58 FR 7533,
February 8, 1993), which established that the need for the Department
to address petition deficiencies is limited. In that review, the
Department stated that the ``rights [of a non-respondent company] are
strictly limited to those comments that it can support without
submitting any information on its costs or prices for the record,'' and
the company ``is restricted to identifying clerical and methodological
errors in the petition on the basis of public information.'' The
Department found that to allow a company to selectively submit
information when it did not submit an adequate questionnaire response
would permit the company to manipulate the outcome of the proceeding.
The Department determined that such actions would defeat the purpose of
the BIA rule, which is to provide respondents with an incentive to
cooperate fully in antidumping proceedings.
In applying the standard from SWR from Mexico to Global Trading's
challenge in this case, we have determined that (1) for the average
yield per acre, the information submitted by Global Trading was not
public information and (2) for U.S. price, Global Trading submitted
data regarding its own purchases of the subject merchandise from four
PRC exporters. Thus, we have found that neither of Global Trading's
specific challenges meets the standard established in SWR from Mexico
and, therefore, we have not adjusted the data from the petition based
on Global Trading's allegations. We note that the petitioners used
standard methodologies, which have been examined by the Department.
Critical Circumstances
In our preliminary determination, we found that ``critical
circumstances'' exist with respect to imports of fresh garlic from the
PRC. Pursuant to section 733(e)(1) of the Act, we based our preliminary
determination on a finding of (1) knowledge of dumping because the
estimated dumping margin for all exporters of fresh garlic in the PRC
was in excess of 25 percent, and (2) massive imports over a relatively
short period of time because respondents failed to respond to the
Department's questionnaire. As a result, we assumed, as BIA, that
imports have been massive.
For the final determination, we have continued to use BIA as the
basis for our determination of critical circumstances. The BIA margin
exceeds the 25 percent threshold for imputing knowledge of dumping to
the importers of the subject merchandise.
In addition, we have adversely assumed, as BIA, a massive increase
in imports because of the non-response of exporters.
Accordingly, because the dumping margin is sufficient to impute
knowledge of dumping, and because we have determined that imports of
fresh garlic have been massive, we determine that critical
circumstances do exist with respect to fresh garlic from the PRC.
Continuation of Suspension of Liquidation
In accordance with section 735(d)(1) and 735(c)(4)(A) of the Act,
we are directing the Customs Service to continue to suspend liquidation
of all entries of fresh garlic from the PRC, as defined in the ``Scope
of Investigation'' section of this notice, that are entered, or
withdrawn from warehouse, for consumption on or after April 12, 1994,
which is 90 days before the date of publication of the preliminary
determination in the Federal Register. The Customs Service shall
require a cash deposit or posting of a bond equal to the estimated
margin amount by which the foreign market value of the subject
merchandise exceeds the United States price as shown below. The
suspension of liquidation will remain in effect until further notice.
------------------------------------------------------------------------
Margin
Manufacturer/producer/exporter percent
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All Manufacturers/producers/exporters...................... 376.67
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ITC Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (ITC) of this determination. The ITC
will determine, within 45 days, whether these imports are causing
material injury, or threat thereof, to the industry in the U.S.
producing the subject merchandise. If the ITC determines that material
injury, or threat thereof, does not exist, the proceeding will be
terminated and all securities posted will be refunded or cancelled. If
the ITC determines that such injury does exist, the Department will
issue an antidumping duty order directing Customs officials to assess
antidumping duties on all imports of the subject merchandise entered,
or withdrawn from warehouse, for consumption on or after the effective
date of the suspension of liquidation.
This determination is published pursuant to section 735(d) of the
Act and 19 CFR 353.20(a)(4).
Dated: September 19, 1994.
Paul L. Joffe,
Acting Assistant Secretary for Import Administration.
[FR Doc. 94-23767 Filed 9-23-94; 8:45 am]
BILLING CODE 3510-DS-P