Fresh Garlic From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review

[Federal Register Volume 64, Number 139 (Wednesday, July 21, 1999)]
[Notices]
[Pages 39115-39117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-18646]


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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 Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of preliminary results of antidumping duty 
administrative review.

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SUMMARY: In response to a request from the petitioner, the Fresh Garlic 
Producers Association and its individual members, the Department of 
Commerce is conducting an administrative review of the antidumping duty 
order on fresh garlic from the People's Republic of China. The period 
of review is November 1, 1997, through October 31, 1998. The petitioner 
requested a review of Comercial Peregrin, S.A., Rizhao Hanxi Fisheries 
& Comprehensive Development Co., Ltd., and Fook Huat Tong Kee PTE. Ltd. 
Initially, Fook Huat Tong Kee PTE. Ltd. also requested a review of its 
own sales on November 13, 1998, but withdrew its request for review on 
May 7, 1999. Because we have determined that Fook Huat Tong Kee PTE. 
Ltd. has failed to submit a complete response to our questionnaires and 
the remaining named respondents did not respond at all to our 
questionnaire, we have preliminarily determined to use facts otherwise 
available for cash deposit and assessment purposes for all producers/
exporters of the subject merchandise.
    We invite interested parties to comment on these preliminary 
results. Parties who submit comments are requested to submit with each 
argument (1) a statement of the issue and (2) a brief summary of the 
argument.

EFFECTIVE DATE: July 21, 1999.

FOR FURTHER INFORMATION CONTACT: Davina Hashmi or Farah Naim, Office of 
Antidumping/Countervailing Duty Enforcement, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone 
(202) 482-5760 or (202) 482-3174, respectively.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as

[[Page 39116]]

amended (the Act), are references to the provisions effective January 
1, 1995, the effective date of the amendments made to the Act by the 
Uruguay Round Agreements Act (URAA). In addition, unless otherwise 
indicated, all citations to the Department of Commerce's (the 
Department's) regulations are to the regulations codified at 19 CFR 
Part 351 (1998).

Background

    On November 12, 1998, the Department published in the Federal 
Register (63 FR 63287) a notice of ``Opportunity to Request 
Administrative Review'' with respect to the antidumping duty order on 
fresh garlic from the People's Republic of China (PRC) (59 FR 59209, 
November 16, 1994). On November 30, 1998, the petitioner requested an 
administrative review of three producers/exporters of this merchandise 
to the United States. One of those three companies, Fook Huat Tong Kee 
PTE. Ltd. (FHTK), an exporter of garlic from the PRC, also requested a 
review of its own sales on November 13, 1998, but withdrew its request 
on May 7, 1999. In response to the petitioner's request, the Department 
published a notice of initiation of an administrative review on 
December 23, 1998 (63 FR 71091), in accordance with 19 CFR 351.213(b). 
On December 29, 1998, we sent questionnaires to the three respondent 
firms named in the initiation notice.

Scope of Review

    The products subject to this antidumping duty order are all grades 
of garlic, whole or separated into constituent cloves, whether or not 
peeled, fresh, chilled, frozen, provisionally preserved, or packed in 
water or other neutral substance, but not prepared or preserved by the 
addition of other ingredients or heat processing. The differences 
between grades are based on color, size, sheathing, and level of decay.
    The scope of this order does not include the following: (a) Garlic 
that has been mechanically harvested and that is primarily, but not 
exclusively, destined for non-fresh use; or (b) garlic that has been 
specially prepared and cultivated prior to planting and then harvested 
and otherwise prepared for use as seed.1
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    \1\ Fresh Garlic from the People's Republic of China, Inv. No. 
731-TA-683 (Final), USITC Pub. 2825 (November 1994).
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    The subject merchandise is used principally as a food product and 
for seasoning. The subject garlic is currently classifiable under 
subheadings 0703.20.00000, 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. In order to be excluded from the antidumping 
duty order, garlic entered under the HTSUS subheadings listed above 
that is (1) mechanically harvested and primarily, but not exclusively, 
destined for non-fresh use or (2) specially prepared and cultivated 
prior to planting and then harvested and otherwise prepared for use as 
seed must be accompanied by declarations to the Customs Service to that 
effect.

Use of Facts Otherwise Available

    On December 29, 1998, we issued questionnaires to Comercial 
Peregrin, S.A. (Comercial), Rizhao Hanxi Fisheries & Comprehensive 
Development Co., Ltd. (Rizhao), and FHTK. Neither Comercial nor Rizhao 
responded. Although FHTK responded to our original questionnaire, it 
did not respond to our supplemental questionnaire, issued April 14, 
1999. Section 776(a)(2) of the Act provides that, if an interested 
party withholds information that has been requested by the Department, 
thereby precluding it from conducting an analysis of its sales made 
during the instant POR, the Department may make its determination on 
the basis of the facts available. Accordingly, because Comercial and 
Rizhao did not respond to our original questionnaire and because FHTK 
did not respond to our supplemental request for information, we must 
resort to the facts available to determine the dumping margin for each 
of these respondents.
    Section 776(b) of the Act permits us to draw an adverse inference 
where a party has not cooperated to the best of its ability in a 
proceeding. This section of the Act deems a respondent uncooperative 
where the party ``* * * has not acted to the best of its ability to 
comply with requests for necessary information.'' See the Statement of 
Administrative Action accompanying the URAA, H.R. Doc. 316, Vol. 1, 
103d Cong. (1994) (SAA) at 870. We find that, in not responding to our 
requests for information, these respondents were not cooperative. Since 
these respondents did not act to the best of their ability to comply 
with our requests for information, we have used an inference that is 
adverse to the interests of these respondents in selecting from among 
the facts otherwise available. The statute provides that an adverse 
inference may include reliance on information derived from (1) the 
petition, (2) the final determination in the investigation segment of 
the proceeding, (3) a previous review under section 751 of the Act or a 
determination under section 753 of the Act, or (4) any other 
information placed on the record. In addition, the SAA establishes that 
the Department may employ an adverse inference ``to ensure that the 
party does not obtain a more favorable result by failing to cooperate 
than if it had cooperated fully.'' SAA at 870. In employing adverse 
inferences, the Department is instructed to consider ``the extent to 
which a party may benefit from its own lack of cooperation.'' Id. As 
none of the named respondents cooperated by complying with our requests 
for information and to ensure that they do not benefit from their lack 
of cooperation, we are employing an adverse inference in selecting from 
the facts available.
    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 ``as to effectuate the purpose of the facts 
available role to induce respondents to provide the Department with 
complete and accurate information in a timely manner.'' See Static 
Random Access Memory Semiconductors from Taiwan; Final Determination of 
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998). 
The Department also considers the extent to which a party may benefit 
from its own lack of cooperation in selecting a rate. See Roller Chain, 
Other than Bicycle, from Japan; Notice of Final Results and Partial 
Recission of Antidumping Duty Administrative Review, 62 FR 60472, 60477 
(November 10, 1997).
    Accordingly, in order to ensure that the rate is sufficiently 
adverse so as to induce cooperation by the named respondents, we have 
assigned each of these companies the petition rate of 376.67 percent, 
the highest dumping margin used in any segment of this proceeding. 
Although that rate constitutes secondary information, the information 
has already been corroborated in a prior review. See Final Results of 
Administrative Review: Fresh Garlic from the People's Republic of 
China, 61 FR 68229 (December 27, 1996). We have determined that there 
is no evidence on the administrative record that would warrant 
revisiting that issue in this review.
    Interested parties may request a hearing not later than 30 days 
after publication of this notice. Interested parties may also submit 
written arguments in case briefs on these preliminary results within 30 
days of

[[Page 39117]]

the date of publication of this notice. Rebuttal briefs, limited to 
issues raised in case briefs, may be filed no later than five days 
after the time limit for filing case briefs. Parties who submit 
arguments are requested to submit with each argument a statement of the 
issue and a brief summary of the argument. Any hearing, if requested, 
will be held three days after the scheduled date for submission of 
rebuttal briefs.
    The Department will publish the final results of this 
administrative review, including a discussion of its analysis of issues 
raised in any case or rebuttal brief or at a hearing. The Department 
will issue final results of this review within 120 days of publication 
of these preliminary results.
    Upon completion of the final results in this review, the Department 
shall determine, and the Customs Service shall assess, antidumping 
duties on all appropriate entries. Furthermore, the following deposit 
rate will be effective upon publication of the final results of this 
administrative review for all shipments of fresh garlic from the PRC 
entered, or withdrawn from warehouse, for consumption on or after the 
publication date, as provided for by section 751(a)(2)(c) of the Act: 
for all PRC exporters and for all non-PRC exporters of subject 
merchandise from the PRC, the cash deposit rate will be the PRC-wide 
rate established in the final results of this review. This deposit 
rate, when imposed, shall remain in effect until publication of the 
final results of the next administrative review.
    This notice also 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 this determination and notice in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: July 13, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-18646 Filed 7-20-99; 8:45 am]
BILLING CODE 3510-DS-P