[Federal Register: July 7, 2004 (Volume 69, Number 129)]
[Notices]
[Page 40868-40869]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy04-44]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-831]
Fresh Garlic From the People's Republic of China: Notice of
Initiation of New Shipper Antidumping Duty Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In May 2004, the Department of Commerce received three
requests to conduct new shipper reviews of the antidumping duty order
on fresh garlic from the People's Republic of China. Two of these
requests were withdrawn. With respect to the third request, we have
determined that it meets the statutory and regulatory requirements for
the initiation of a new shipper review. In addition, we believe that
there is sufficient information on the record to support the initiation
of a middleman dumping inquiry involving the parties named in this
request.
EFFECTIVE DATE: July 7, 2004.
FOR FURTHER INFORMATION CONTACT: Sochieta Moth or Mark Ross at (202)
482-5047 and (202) 482-4794, respectively, AD/CVD Enforcement 5, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C.
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. On May 11, 24, and 28, 2004, we received three timely requests,
in accordance with 19 CFR 351.214(d), to conduct new shipper reviews of
the antidumping duty order from Texing Trading Co., Ltd. (Texing
Trading), Shandong Dongyue Produce Co., Ltd. (Dongyue), and Shandong
Jining Jinshan Textile Co., Ltd. (Jining Jinshan), respectively. Texing
Trading and Dongyue withdrew their requests for
[[Page 40869]]
new shipper reviews on June 9, 2004, and June 25, 2004, respectively.
On June 28, 2004, Jining Jinshan resubmitted its request for a new
shipper review to correct certain deficiencies (e.g., illegible
exhibits, missing English translations, etc.) that we identified in its
submission and to provide additional documentation pertaining to the
U.S. sale for which it requested a new shipper review.
Summary of Request for New Shipper Review
Pursuant to 19 CFR 351.214(b)(2)(i), Jining Jinshan certified that
it did not export subject merchandise to the United States during the
period of investigation (POI). Pursuant to 19 CFR
351.214(b)(2)(iii)(A), Jining Jinshan further certified that, since the
initiation of the investigation, it has never been affiliated with any
exporters or producers 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),
Jining Jinshan also certified that its export activities were not
controlled by the central government.
In addition to the certifications described above, Jining Jinshan
submitted documentation establishing the date of its sale to H & T
Trading Co., Ltd. (H & T), an unaffiliated customer outside the PRC.
Jining Jinshan also provided the volume and value of this shipment.
Further, according to the documentation provided by Jining Jinshan, H &
T then issued an invoice and resold the subject merchandise to the
United States. Jining Jinshan also provided entry documentation
establishing the date on which the subject merchandise entered into the
United States, as well as the quantity and value of the merchandise
that was resold by H & T to an unaffiliated U.S. purchaser.
Initiation of New Shipper Review
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 and
exported by Jining Jinshan. Therefore, until completion of the new
shipper review, we will instruct U.S. Customs and Border Protection to
allow, at the option of the importers, the posting of a bond or
security in lieu of a cash deposit for entries of subject merchandise
grown and exported from the PRC by Jining Jinshan.
Initiation of Middleman Dumping Inquiry
In cases in which the producer under review sells the subject
merchandise to an unaffiliated party prior to its arrival in the U.S.
with knowledge of the final destination, we normally use export price,
the price at which the producer sells the subject merchandise to the
first unaffiliated party, as the basis for U.S. price, pursuant to
section 772(a) of the Act.
Based on the material that has been submitted on the record, it
appears that the sale for review in the instant case is an export-price
sale.
However, when an exporter sells its merchandise to an unaffiliated
exporter, who resells its merchandise to the United States below
acquisition and selling costs, it is possible that ``middleman
dumping'' may exist. In such cases, the Department will calculate an
antidumping duty margin based on a combination of the price paid by the
middleman to the exporter, and the price paid to the middleman from the
unaffiliated U.S. customer. Congress indicated in its legislative
history that it intended for the Department to prevent middleman
dumping from occurring, and the Courts have affirmed this application
of the law as necessary to prevent the circumvention of the antidumping
duty law. See Tung Mung v. United States, 219 F. Supp. 2d 1333, 1343
(CIT 2002), aff'd 354 F. 3d 1371 (Fed. Cir. 2004); S. Rep. No. 96-249
at 94 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 480; and H.R. Rep.
No. 96-317 at 75 (1979) (both discussing the need to prevent middleman
dumping).
Our analysis of the sales documentation submitted by Jining Jinshan
in its request for a new shipper review appears, at first glance, to
suggest that a middleman dumping scenario may exist in this case.
Accordingly, the Department is initiating a middleman dumping inquiry
and will be issuing middleman-oriented questionnaires consistent with
our practice in similar past cases. See Fuel Ethanol From Brazil: Final
Determination of Sales at Less than Fair Value, 51 FR 5572, 5573
(February 14, 1986); Notice of Final Determination of Sales at Less
Than Fair Value: Stainless Steel Sheet and Strip in Coils from Taiwan,
64 FR 30592 (June 8, 1999); and Notice of Final Determination of Sales
at Less than Fair Value: Stainless Steel Plate in Coils from Taiwan, 64
FR 15493 (March 31, 1999).
The period of review is November 1, 2003, through April 30, 2004.
See 19 CFR 351.214(g)(1)(i)(B). We intend to issue the preliminary
results of this review and inquiry no later than 180 days after the
date on which this review is initiated, and the final results of this
review and inquiry within 90 days after the date on which the
preliminary results are issued. See section 751(a)(2)(B)(iv) of the
Act.
Interested parties that need access to proprietary information in
this new shipper review and middleman dumping inquiry should submit
applications for disclosure under administrative protective order in
accordance with 19 CFR 351.305 and 351.306.
This initiation notice is in accordance with section 751(a)(2)(B)
of the Act and 19 CFR 351.214 and 351.221(c)(1)(i).
Dated: June 30, 2004.
Jeffrey A. May,
Deputy Assistant Secretary for Import Administration, Group I.
[FR Doc. 04-15410 Filed 7-6-04; 8:45 am]