[Federal Register: January 7, 2004 (Volume 69, Number 4)]
[Notices]
[Page 903-905]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07ja04-32]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of initiation of new shipper antidumping duty review:
Fresh garlic from the People's Republic of China.
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EFFECTIVE DATE: January 7, 2004.
SUMMARY: In November 2003, the Department of Commerce received two
requests to conduct new shipper reviews of the antidumping duty order
on fresh garlic from the People's Republic of China. We have determined
that one of these requests meets the statutory and regulatory
requirements for the initiation of a new shipper review.
[[Page 904]]
FOR FURTHER INFORMATION CONTACT: Brian Ellman or Minoo Hatten at (202)
482-4852 and (202) 482-1690, respectively, AD/CVD Enforcement III,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
The notice announcing the antidumping duty order on fresh garlic
from the People's Republic of China (PRC) was published on November 16,
1994. In November 2003, we received two requests to conduct new shipper
reviews of the antidumping duty order.
On November 25, 2003, we received a request for a new shipper
review from H&T Trading Company of Hong Kong (H&T). On November 26,
2003, we also received a request for a new shipper review from Jinxiang
Shanyang Freezing Storage Co., Ltd. (Shanyang).
H&T and Shanyang certified that they exported the subject
merchandise on which they based their requests for a new shipper
review, but that they did not grow the subject merchandise.
Specifically, H&T certified that Shandong Jining Jinshan Textile Co.,
Ltd. (Jining Jinshan), grew the subject merchandise it exported, and
Shanyang certified that Kaifeng Wangtun Fresh Vegetables Factory
(Kaifeng) grew the subject merchandise it exported.
On December 16 and December 23, 2003, respectively, Shanyang and
H&T resubmitted their requests for new shipper reviews to correct
certain deficiencies (e.g., bracketing of public information) that we
identified in their submissions and to provide additional documentation
pertaining to the U.S. sales for which they requested new shipper
reviews.
Initiation of New Shipper Review
H&T
The Department of Commerce (the Department) issued a letter to H&T
on December 19, 2003, in which it requested additional documentation
establishing H&T's entitlement to a new shipper review. In its December
23, 2003, response, H&T included the sales contract pertaining to its
transaction with the grower, Jining Jinshan. The sales contract, which
was generated prior to the date of H&T's U.S. sale, specifies the
ultimate U.S. destination of the merchandise and stipulates that the
transaction between Jining Jinshan and H&T will be conducted in U.S.
dollars.
Section 772(a) of the Tariff Act of 1930, as amended (the Act)
states in part:
The term ``export price'' means the price at which the subject
merchandise is first sold (or agreed to be sold) before the date of
importation by the producer or exporter of the subject merchandise
outside of the United States to an unaffiliated purchaser in the
United States or to an unaffiliated purchaser for exportation to the
United States * * *
Accordingly, the Department has interpreted section 772(a) of the
Act to mean that it is to use the price at which the first party in the
chain of distribution who has knowledge of the U.S. destination of the
merchandise sells the subject merchandise, either directly to a U.S.
purchaser or to an intermediary such as a trading company. The party
making such a sale, with knowledge of destination, is the appropriate
party to be reviewed. Our focus is on the first party in the chain of
distribution with knowledge of the U.S. destination rather than on the
first chronological sale of the merchandise. See, e.g., Fresh Garlic
From the People's Republic of China: Preliminary Results of Antidumping
Duty Administrative Review, Partial Rescission of Administrative
Review, and Intent To Rescind Administrative Review in Part, 68 FR
4758, 4759 (January 30, 2003). One exception to this rule is that, in
non-market-economy (NME) cases, we do not base export price on internal
transactions between two companies located in the NME. See Fresh Garlic
From the People's Republic of China; Final Results of Antidumping Duty
Administrative Review and Partial Termination of Administrative Review,
62 FR 23758, 23759 (May 1, 1997).
Hong Kong companies are treated as market-economy companies (see
Application of U.S. Antidumping and Countervailing Duty Laws to Hong
Kong, 62 FR 42965 (August 11, 1997)). H&T's request for a new shipper
review indicates that the company is based in Hong Kong.
Applying these principles, we are not initiating a new shipper
review of H&T's sale to its U.S. customer because evidence on the
record supports a finding that Jining Jinshan had knowledge of the U.S.
destination when it completed its transaction with H&T. Because of its
knowledge and the fact that the sale between Jining Jinshan and H&T was
the first non-intra-NME sale in the chain of distribution, this sale is
the appropriate basis for determining the export price.
The Department did not receive a request for a new shipper review
of Jining Jinshan at any point prior to or during the anniversary month
of the publication of the antidumping duty order. See 19 CFR
351.214(d). Therefore, we find that it is not appropriate to conduct a
review of the sale at issue at this time and have determined that H&T
is ineligible for a new shipper review based on this transaction.
Shanyang
Pursuant to 19 CFR 351.214(b)(2)(i), Shanyang certified that it did
not export subject merchandise to the United States during the period
of investigation (POI). In addition, pursuant to 19 CFR
351.214(b)(2)(ii)(B), Kaifeng, the grower of the garlic exported by
Shanyang, provided certifications that it did not export the subject
merchandise to the United States during the POI.
Pursuant to 19 CFR 351.214(b)(2)(iii)(A), Shanyang certified that,
since the initiation of the investigation, it has never been affiliated
with any exporter or producer who exported the subject merchandise to
the United States during the POI, including those not individually
examined during the investigation. As required by 19 CFR
351.214(b)(2)(iii)(B), Shanyang also certified that its export
activities were not controlled by the central government.
In addition to the certifications described above, Shanyang
submitted documentation establishing the following: (1) The date on
which it first shipped the subject merchandise for export to the United
States and the date on which the subject merchandise was first entered,
or withdrawn from warehouse, for consumption; (2) the volume of its
first shipment and the volume of subsequent shipments; (3) the date of
its first sale to an unaffiliated customer in the United States.
Pursuant to section 751(a)(2)(B) of the Tariff Act of 1930, as
amended (the Act), and 19 CFR 351.214(d)(1), we are initiating a new
shipper review for shipments of fresh garlic from the PRC grown by
Kaifeng and exported by Shanyang.
The period of review is November 1, 2002, through October 31, 2003.
See 19 CFR 351.214(g)(1)(i)(A). We intend to issue final results of
these reviews no later than 270 days from the date of initiation. See
section 751(a)(2)(B)(iv) of the Act.
Shanyang has certified that it exported but did not grow the
subject merchandise on which it based its request for a new shipper
review (i.e., Kaifeng certified that it grew the subject merchandise
exported by Shanyang). Therefore, until completion of the new shipper
review, we will instruct U.S. Customs and Border Protection to allow,
[[Page 905]]
at the option of the importer, the posting of a bond or security in
lieu of a cash deposit for entries of subject merchandise grown by
Kaifeng and exported by Shanyang.
Interested parties that need access to proprietary information in
this new shipper review should submit applications for disclosure under
administrative protective order in accordance with 19 CFR 351.305 and
351.306.
This initiation and notice are in accordance with section
751(a)(2)(B) of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
Dated: December 31, 2003.
Louis Apple,
Acting Deputy Assistant Secretary for Import Administration.
[FR Doc. 04-332 Filed 1-6-04; 8:45 am]