[Federal Register Volume 84, Number 33 (Tuesday, February 19, 2019)]
[Notices]
[Pages 4769-4770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02585]
[[Page 4769]]
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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 January 30, 2019, the United States Court of International
Trade (the CIT) entered final judgment sustaining the Department of
Commerce's (Commerce) second remand results pertaining to the fifteenth
administrative review of the antidumping duty order on fresh garlic
from the People's Republic of China (China) for Shenzhen Xinboda
Industrial Co., Ltd. (Xinboda). Commerce is notifying the public that
the final judgment in this case is not in harmony with the final
results and partial rescission of the fifteenth antidumping duty
administrative review, and that Commerce has amended the dumping margin
found for Xinboda.
DATES: Applicable February 19, 2019.
FOR FURTHER INFORMATION CONTACT: Alexander Cipolla, 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) 482-4956.
SUPPLEMENTARY INFORMATION:
Background
On June 27, 2011, Commerce published the Final Results pertaining
to mandatory respondent Xinboda, along with other exporters.\1\ In the
Final Results, Commerce selected India as the primary surrogate
country.\2\ Pursuant to section 773(c)(1) of the Tariff Act of 1930, as
amended (the Act), and applying our intermediate input methodology,
Commerce used prices published for Azadpur in India to value whole raw
garlic bulbs (bulbs). Commerce calculated a rate of $0.06 per kilogram
for Xinboda, and the separate rate respondents.\3\
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\1\ See Fresh Garlic from the People's Republic of China: Final
Results and Final Rescission, in Part, of the 2008-2009 Antidumping
Duty Administrative Review, 76 FR 37321 (June 27, 2011) (Final
Results) and accompanying Issues and Decision Memorandum (IDM).
\2\ See IDM.
\3\ See Final Results, 76 FR at 37326.
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On April 16, 2014, the CIT remanded for Commerce to: (1) Consider
information indicating the Azadpur bulb prices might involve a higher
level of processing that potentially double-counted processing of
factors of production (FOPs) reported by Xinboda that Commerce included
in normal value (NV); (2) consider information indicating that prices
for grade A bulbs already reflect prices for grade S.A. bulbs; (3)
explain why Tata Tea's financial statements are useable, in light of
information Xinboda provided allegedly indicating that Tata Tea
received countervailable subsidies, and why Garlico Industries
Limited's (Garlico) statements are not useable; (4) explain further the
intermediate labor methodology or revise the surrogate value (SV) for
labor; and (5) explain why zeroing is permissible in non-market economy
(NME) reviews.\4\
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\4\ See Shenzhen Xinboda Industrial Co., Ltd. v. United States,
Slip Op. 14-45, Court No. 11-00267 (CIT 2014) (First Remand
Opinion).
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On August 4, 2014, Commerce filed the First Remand Results,
revising Xinboda's rate from $0.06 per kilogram to $0.02 per
kilogram.\5\ In accordance with the First Remand Opinion, Commerce
adjusted its NV calculation by removing the costs of self-produced and
consumed green leaf from the surrogate manufacturing overhead ratio
from Tata Tea. In addition, we revised our SV for labor, in compliance
with Commerce's current surrogate labor rate methodology. We revised
our margin calculation to exclude the inland freight expense of
transportation expenses for raw garlic bulbs from Indian growers to the
Azadpur market.\6\ Commerce continued to rely on grade A and grade S.A.
bulb data from the Azadpur market data, explaining that those prices
were ``more similar'' to the input being valued and that the Researcher
Declaration submitted by Xinboda was unreliable and did not undermine
the Azadpur prices to the point of being unusable. Commerce also
continued to rely on Tata Tea's financial statements in order to value
the surrogate financial ratios and gave a more fulsome explanation of
Commerce's practice in interpreting the ``reason to believe or
suspect'' standard regarding whether financial statements contain
evidence of countervailable subsidies. Finally, we continued to utilize
our zeroing methodology.
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\5\ See ``Final Results of Redetermination Pursuant to Remand,
Shenzhen Xinboda Industrial Co., Ltd. v. United States, Court of
International Trade No. 11-00267, Slip Op. 14-45,'' dated August 14,
2014 (First Remand Results).
\6\ Id. at 6.
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On December 15, 2017, the CIT sustained Commerce's application of
its zeroing methodology, and the SV for labor in the First Remand
Results.\7\ However, the Court again remanded the First Remand Results
for Commerce to reconsider the SV for whole raw garlic bulbs and the
selection of surrogate financial statements.\8\ Per the Court's
instructions, Commerce recalculated Xinboda's rate using only the
contemporaneous grade A bulb prices from the Azadpur data. In addition,
as directed by the Court, Commerce adjusted the surrogate bulb value in
order to reflect the expenses associated with intermediaries and
further processing of the garlic bulb. Moreover, Commerce continued to
apply financial ratios derived from the 2010 unconsolidated financial
statements of Tata Tea, after further explaining our practice regarding
the ``reason to believe or suspect'' standard for countervailable
subsidies in financial statements.\9\ The calculations performed in the
Second Remand Results resulted in a weighted-average dumping margin of
$0.00 per kilogram for Xinboda.
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\7\ See Shenzhen Xinboda Industrial Co. v. United States, CIT
Slip Op. 17-166, Consol. Ct. No. 11-00267 (December 15, 2017)
(Second Remand Opinion).
\8\ See Second Remand Opinion at 4.
\9\ See Memorandum, ``Final Results of Redetermination Pursuant
to Remand: Fresh Garlic from the People's Republic of China,
Shenzhen Xinboda Industrial Co., Ltd. v. United States, U.S. Court
of International Trade, Consol. Ct. No. 11-00267, Slip Op. 17-166,''
dated April 24, 2018 (Second Remand Results).
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On January 30, 2019, the CIT sustained Commerce's Second Remand
Results with respect to the fifteenth administrative review of the AD
order on fresh garlic from China.\10\
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\10\ See Shenzhen Xinboda Industrial Co., Ltd. v. United States,
CIT Slip Op. 19-16, Consol. Ct. No. 11-00267 (January 30, 2019)
(Slip Op. 19-16).
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Timken Notice
In its decision in Timken,\11\ as clarified by Diamond
Sawblades,\12\ the Court of Appeals for the Federal Circuit held that,
pursuant to section 516A(e) of the Act, Commerce must publish a notice
of a court decision that is not ``in harmony'' with a Commerce
determination and must suspend liquidation of entries pending a
``conclusive'' court decision. The CIT's January 30, 2019, final
judgment sustaining the Second Remand Results constitutes a final
decision of the Court that is not in harmony with Commerce's
[[Page 4770]]
Final Results.\13\ This notice is published in fulfillment of the
Timken publication requirements.
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\11\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
\12\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\13\ 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. Based on the Second Remand Results, as affirmed by the CIT,
the revised dumping margin for Xinboda, for the period of review of
November 1, 2008, through October 31, 2009, is $0.00 per kilogram.
Accordingly, Commerce will continue the suspension of liquidation
of the subject merchandise pending the expiration of the period of
appeal or, if appealed, pending a final and conclusive court decision.
In the event the CIT's ruling is not appealed or, if appealed, upheld
on appeal, Commerce will instruct U.S. Customs and Border Protection to
liquidate the unliquidated entries of subject merchandise based on the
revised dumping margin above.
Cash Deposit Requirements
Commerce will not update the cash deposit requirements for Xinboda
as it has later-determined rates from subsequent administrative
reviews.
Notification to Interested Parties
This notice is issued and published in accordance with section
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: February 11, 2019.
Christian Marsh,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-02585 Filed 2-15-19; 8:45 am]
BILLING CODE 3510-DS-P