Notice of Final Determination of Sales at Less Than Fair Value: Fresh Garlic From the People's Republic of China

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

------------------------------------------------------------------------

All Manufacturers/producers/exporters...................... 376.67

------------------------------------------------------------------------

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