Since thePreliminary Results,the following events have occurred. On December 2, 2010, surrogate value information was placed on the record by Huachao. On December 30, 2010, the Department extended the time limit for the final results of this new shipper review. On January 26, 2011, the Department issued a supplemental questionnaire to Yuanxin. On January 27, 2011, the Department issued a supplemental questionnaire to Huachao. On February 4, 2011, the Department issued a letter to Yuanxin concerning the business proprietary designation of the company's Web site address.
On February 4, 2011, the Department issued the briefing schedule for briefs addressing all issues except thebona fidesof Huachao's and Yuanxin's respective sales. On February 8, 2011, Yuanxin requested an extension to the deadlines as established in the February 4, 2011 briefing schedule. On February 9, 2011, the Department issued an extension of this briefing schedule, with briefs due February 17, 2011, and rebuttal briefs due February 22, 2011. On February 14, 2011, the Department placed information related to Jinxiang Hejia Co., Ltd.'s NSR sale to the United States, from the 2007/2008 NSR, on the record of this review. Huachao and Yuanxin submitted supplemental questionnaire responses on February 14, 2011. Yuanxin also submitted its case brief on February 14, 2011. On February 15, 2011, the Department placed memoranda on the record of this review that included information related toYuanxin's domain name registration and the corporate records of the importers and customers of each of the exporters involved in this review. On February 17, 2011, Huachao and Chengda submitted case briefs.
On February 18, 2011, the Department issued the briefing schedule for briefs addressing only thebona fidesof Huachao's and Yuanxin's respective sales. Additionally, on February 18, 2011, the Fresh Garlic Producers Association and its individual members (Christopher Ranch L.L.C., the Garlic Company, Valley Garlic, and Vessey and Company, Inc.) (collectively, Petitioners) requested an extension of the February 22, 2011 deadline for rebuttal briefs not related to thebona fidesof Huachao's and Yuanxin's respective sales. On February 22, 2011, the Department granted Petitioners' February 18, 2011 request for an extension to the rebuttal briefs deadline, the new deadline becoming February 25, 2011. On February 24, 2011, Petitioners submitted a rebuttal to Huachao's February 14, 2011 supplemental questionnaire response. On February 25, 2011, Petitioners submitted rebuttal briefs for all three respondents. Also, on February 25, 2011, Petitioners submitted a brief regarding whether Huachao's POR sale wasbona fide.
On March 1, 2011, Huachao requested an extension to the deadline of thebona fidesrebuttal briefs as established in the Department's February 18, 2011 briefing schedule. On March 2, 2011, the Department granted Huachao's March 1, 2011 request for an extension, the new deadline forbona fidesrebuttal briefs becoming March 7, 2011. On March 3, 2011, Huachao submitted a letter requesting that the Department reject Petitioners' February 24, 2011 submission on the grounds that it contained untimely new factual information. Further, Huachao argued that Petitioners' February 25, 2011 case brief also be rejected, as it relies upon information contained in the February 24, 2011 submission. The information in question involves the nature of the United States garlic market and the appropriate benchmark to be used in determining thebona fidenature of Huachao's sale. The Department found this information to be relevant to the information provided by Huachao in its supplemental response, which addressed Department questions regarding whether Huachao's sale wasbona fide.Thus, the Department concluded that Petitioners' submission was timely rebuttal information allowed for under 19 CFR 351.301(c). Finally, on March 7, 2011, Huachao submitted a rebuttal brief to the February 25, 2011 case brief submitted by Petitioners regarding thebona fidesof its sale.
On March 16, 2011, Department officials met with Chengda's counsel to discuss issues related to the case briefs.SeeMemorandum for the File from Lingjun Wang, Case Analyst, AD/CVD Operations, Office 6, “Meeting with Counsel for the Jinxiang Chengda Import & Export Co., Ltd.: New Shipper Review of the Antidumping Duty Order on Fresh Garlic from China” (March 16, 2011). On March 17, 2011, Department officials met with Petitioners' counsel to discuss issues related to the case briefs.SeeMemorandum for the File from David Lindgren, Case Analyst, AD/CVD Operations, Office 6, “Meeting with Counsel for the Petitioners: New Shipper Review of the Antidumping Duty Order on Fresh Garlic from China” (March 17, 2011).
Scope of the Order
The products covered by the 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. The subject merchandise is used principally as a food product and for seasoning. The subject garlic is currently classifiable under subheadings 0703.20.0010, 0703.20.0020, 0703.20.0090, 0710.80.7060, 0710.80.9750, 0711.90.6000, and 2005.90.9700 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 the order is dispositive. In order to be excluded from the 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 CBP to that effect.
Analyses of Comments Received
In addition to commenting on thebona fidesof Chengda's and Huachao's U.S. sales (see Bona Fides Analysissection below), the parties addressed, in their case and rebuttal briefs, three surrogate valuation issues: (1) What to use as the surrogate value for raw garlic bulbs; (2) which financial statements to use as the surrogate financial ratios; and (3) how to properly calculate the wage rate. Since, as discussed below, we are rescinding these reviews, the Department need not address the parties' comments on these issues pertaining to the calculation of the dumping margin.
Bona Fides Analysis
In conducting an NSR, the Department examines price, quantity, and other circumstances associated with the sale to determine if the sale was based on normal commercial considerations and presents an accurate representation of the company's normal business practices, and provides a future indicator of its future selling practice.See Shandong Chenhe Int'l Trading Co.v.United States,No. 08-00373, slip op. at 19 (Ct. Int'l Trade Nov. 22, 2010);see also
Tianjin Tiancheng Pharmaceutical Co., Ltd.v.United States,366 F. Supp. 2d 1246, 1250 (Ct. Int'l Trade 2005); andHebei New Donghua Amino Acid Co., Ltd.v.United States,374 F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005). If the Department determines that the price was not based on normal commercial considerations or is atypical of the respondent's normal business practices, including other sales of comparable merchandise, the sale may be considered notbona fide,and, as such, cannot serve as a reasonable or reliable basis for calculating a dumping margin.