[Federal Register Volume 82, Number 234 (Thursday, December 7, 2017)]
[Notices]
[Pages 57714-57715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26384]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic From the People's Republic of China: Notice of Court 
Decision Not in Harmony With Final Results of Administrative Review and 
Notice of Amended Final Results

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.
SUMMARY: On September 19, 2017, the United States Court of 
International Trade (the CIT) entered final judgment sustaining the 
Department of Commerce's (the Department) second remand results 
pertaining to 18th administrative review of the antidumping duty order 
on fresh garlic from the People's Republic of China (PRC) for Hebei 
Golden Trading Co., Ltd. (Golden Bird) and Shenzhen Xinboda Industrial 
Co., Ltd. (Xinboda). The Department is notifying the public that the 
final judgment in this case is not in harmony with the final results 
and partial rescission of the 18th antidumping duty administrative 
review and that the Department has amended the dumping margins found 
for Xinboda and Golden Bird.

DATES: Applicable September 29, 2017.

FOR FURTHER INFORMATION CONTACT: Chien-Min Yang, AD/CVD Operations, 
Office VII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW., Washington, DC 20230; telephone: (202) 482-5484.

SUPPLEMENTARY INFORMATION: 

Background

    On June 30, 2014, the Department published the Final Results 
pertaining to mandatory respondents Golden Bird and Xinboda, along with 
other exporters.\1\ In the Final Results, the Department selected the 
Philippines as the primary surrogate country and relied on total 
adverse facts available (AFA) with respect to Golden Bird and found 
that the company was part of the PRC-wide entity.\2\ The Department 
calculated a rate of $1.82 per kilogram for Xinboda.
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    \1\ See Fresh Garlic from the People's Republic of China: Final 
Results and Partial Rescission of the 18th Antidumping Duty 
Administrative Review; 2011-2012, 79 FR 36721 (June 30, 2014) (Final 
Results), and accompanying Issues and Decision Memorandum (IDM).
    \2\ See IDM.
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    On November 30, 2015, the CIT remanded for the Department to: (1) 
Consider evidence on the record concerning Golden Bird's independence 
from government control to determine whether the company is entitled to 
separate rate status based solely on that evidence, and if so, to 
determine an appropriate dumping margin specific to Golden Bird, taking 
into consideration the Department's sustained determination to select 
total AFA and applying the law extant at the time of the Final Results; 
(2) reconsider its surrogate country selection in the light of the 
Court's ruling concerning its interpretation of ``significant 
producer.'' \3\
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    \3\ See Fresh Garlic Producers Association v. United States, 121 
F. Supp. 3d 1313 (CIT 2015).
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    On February 29, 2016, the Department filed the Final Remand 
Results.\4\ In accordance with the Final Remand Results, the Department 
found, under protest, that Golden Bird is not part of the PRC wide 
entity and assigned a new separate AFA rate of $2.24 per kilogram, 
which represented Xinboda's highest transaction-specific margin from 
the instant administrative review.\5\ The Department continued to find 
that the Philippines was a significant producer, taking into account 
the ``comparative''

[[Page 57715]]

analysis required by the Court and the specific facts of this case.\6\
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    \4\ See Memorandum to The File, ``Final Results of 
Redetermination Pursuant to Remand: Fresh Garlic from the People's 
Republic of China,'' (February 29, 2016) (Final Remand Results).
    \5\ Id. at 6.
    \6\ Id. at 6-11.
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    On July 7, 2016, the CIT again remanded the Department's selection 
of the Philippines as a surrogate country.\7\ Per the Court's 
instructions, the Department reconsidered its surrogate country 
selection and, under protest, selected Ukraine as the primary surrogate 
country.\8\ The calculations performed with the new surrogate values 
resulted in a weighted-average dumping margin of $2.19 per kilogram for 
Xinboda. Since the Department recalculated a margin for Xinboda with a 
new surrogate country and new surrogate values, we updated Golden 
Bird's separate AFA rate to reflect Xinboda's highest-transaction 
specific margin using the new surrogate values. Accordingly, Golden 
Bird was assigned an updated AFA rate of $2.76 per kilogram.
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    \7\ See Fresh Garlic Producers Association v. United States, 180 
F. Supp. 3d 1233 (CIT 2016).
    \8\ See Memorandum to The File, ``Final Results of 
Redetermination Pursuant to Remand: Fresh Garlic from the People's 
Republic of China, Fresh Garlic Producers Association, et al., v. 
United States, U.S. Court of International Trade, Consol. Ct. No. 
14-00180, Slip Op. 16-68,'' (January 10, 2017) (Second Remand 
Results).
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    On September 19, 2017, the CIT sustained the Department's Second 
Remand Results with respect to the eighteenth administrative review of 
the AD order on fresh garlic from China.\9\
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    \9\ See Fresh Garlic Producers Association v. United States, CIT 
Slip Op. 17-127, Consol. Ct. No. 14-00180 (September 19, 2017) (Slip 
Op. 17-127).
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Timken Notice

    In its decision in Timken,\10\ as clarified by Diamond 
Sawblades,\11\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the 
Act), the Department must publish a notice of a court decision that is 
not ``in harmony'' with a Department determination and must suspend 
liquidation of entries pending a ``conclusive'' court decision. The 
CIT's September 19, 2017, final judgment sustaining the Second Remand 
Results constitutes a final decision of the Court that is not in 
harmony with the Department's Final Results.\12\ This notice is 
published in fulfillment of the Timken publication requirements.
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    \10\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \11\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \12\ See Final Results.
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Amended Final Results

    Because there is now a final court decision, we are amending the 
Final Results with respect to the dumping margins calculated for 
Xinboda and Golden Bird. Based on the Second Remand Results, as 
affirmed by the CIT, the revised dumping margin for Xinboda, from 
November 1, 2011, through October 31, 2012, is $2.19 per kilogram. The 
separate AFA rate for Golden Bird from November 1, 2011, through 
October 31, 2012, is $2.76 per kilogram.
    Because the CIT's ruling was not appealed, it represents a final 
and conclusive court decision, and accordingly the Department will 
instruct Customs and Border Protection (CBP) to assess antidumping 
duties on unliquidated entries of subject merchandise based on the 
revised dumping margins summarized above.

Cash Deposit Requirements

    The Department will not update the cash deposit requirements for 
Golden Bird and Xinboda as they each have later-determined rates from 
subsequent administrative reviews.

Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

    Dated: December 4, 2017.
Gary Taverman,
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations, performing the non-exclusive functions and duties of the 
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2017-26384 Filed 12-6-17; 8:45 am]
 BILLING CODE 3510-DS-P