Fresh Garlic From the People's Republic of China: Final Results and Final Rescission, in Part, of the 2008-2009 Antidumping Duty Administrative Review, 37321-37327 [2011-16072]

Download as PDF 37321 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices and accompanying Issues and Decision Memorandum. DATES: Effective Date: June 6, 2011. FOR FURTHER INFORMATION CONTACT: Myrna Lobo or Milton Koch, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–2371 or (202) 482– 2584, respectively. SUPPLEMENTARY INFORMATION: mstockstill on DSK4VPTVN1PROD with NOTICES Background On June 30, 2009, the Department issued its final results in the antidumping duty review of certain welded stainless steel pipes from the Republic of Korea covering the POR of December 1, 2006, through November 30, 2007. See Final Results. SeAH challenged the following aspects of the Department’s Final Results: (1) The decision to depart from its practice of using an annual cost averaging period and to instead rely on quarterly costs for the sales below cost test; (2) the decision not to apply its normal ‘‘90/60’’ day window period for comparing home market and U.S. sales; (3) the use of an adjusted weighted average annual cost recovery test that incorporated an indexing methodology; and (4) the application of the major input rule with regard to hot-rolled stainless steel coils purchased from a company affiliated with SeAH. In SeAH Steel Corporation v. United States, 704 F. Supp. 2d 1353 (Ct. Int’l Trade 2010), the CIT affirmed the Department’s decisions to rely on quarterly average costs and to not apply the ‘‘90/60’’ day window in making price-to-price comparisons. The CIT granted the Department’s request for a voluntary remand to consider steel specification data for the major input analysis and remanded to the Department for further explanation the adjusted weighted average annual cost recovery test that incorporated an indexing methodology. On September 17, 2010, the Department filed its first remand redetermination explaining its indexed cost recovery methodology in detail. The Department also determined in its remand redetermination that it was appropriate to consider SeAH’s steel specification data in its major input analysis, and accordingly adjusted and recalculated the major input analysis conducted in the Final Results. On March 29, 2011, the CIT concluded in SeAH II that the adjusted cost recovery methodology which was employed by the Department in the VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 Final Results and further explained in the first remand redetermination, was inconsistent with the text of the cost recovery statutory provision. The Court directed the Department to employ a cost recovery test using an unadjusted annual weighted average per unit cost of production. The CIT also affirmed the Department’s use of the steel specification data in the first remand redetermination with respect to the Department’s major input analysis. On April 26, 2011, the Department filed its second remand redetermination (Remand Results). In accordance with the Court’s instructions, the Department recalculated SeAH’s dumping margin by employing an unadjusted annual weighted average per unit cost of production for the POR in its cost recovery test. On May 26, 2011, the CIT sustained the Department’s Remand Results in SeAH III. As a result of the two remand redeterminations, SeAH’s antidumping margin changed from 9.05 percent to 6.01 percent. Manufacturer/exporter Margin (percent) SeAH Steel Corporation (SeAH) .................................. 6.01 In the event the CIT’s ruling is not appealed or, if appealed, upheld by the CAFC, the Department will instruct U.S. Customs and Border Protection to assess antidumping duties on entries of the subject merchandise during the POR from SeAH based on the revised assessment rates calculated by the Department. This notice is issued and published in accordance with sections 516A(e), 751(a)(1), and 777(i)(1) of the Act. Dated: June 20, 2011. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2011–16067 Filed 6–24–11; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration Timken Notice [A–570–831] In its decision in Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, the CAFC 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 holding in SeAH III, sustaining the Department’s Remand Results, constitutes a final decision of that court that is not in harmony with the Department’s Final Results. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department 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. The cash deposit rate will remain the companyspecific rate established for the subsequent and most recent period during which the respondents were reviewed. See Certain Welded Stainless Steel Pipes From the Republic of Korea: Final Results of Antidumping Duty Administrative Review, 75 FR 27987 (May 19, 2010). Fresh Garlic From the People’s Republic of China: Final Results and Final Rescission, in Part, of the 2008– 2009 Antidumping Duty Administrative Review Amended Final Results Because there is now a final court decision with respect to SeAH, the dumping margin is: PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On December 22, 2010, the Department of Commerce (Department) published the preliminary results of the administrative review of the antidumping duty order on Fresh Garlic from the People’s Republic of China (PRC) covering the period of review (POR) of November 1, 2008, through October 31, 2009. Based on the analysis of the record and the comments received, the Department has made certain changes to the margin calculation for the individually examined respondent, Shenzhen Xinboda Industrial Co. Ltd. (Xinboda). The Department also has assigned a separate rate to four fullycooperative producers/exporters which were not selected for individual examination, but which demonstrated their eligibility for separate rate status. In addition, the Department is rescinding the review with respect to eight exporters who timely submitted ‘‘no shipment’’ certifications. Finally, the Department finds that 17 companies subject to this review, including mandatory respondents, Jinxiang Tianma Freezing Storage Co., Ltd. AGENCY: E:\FR\FM\27JNN1.SGM 27JNN1 37322 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices (Tianma Freezing) and Shenzhen Greening Trading Co. Ltd. (Shenzhen Greening), did not demonstrate their eligibility for separate rate status and thus will be considered part of the PRCWide Entity for purposes of these final results. DATES: Effective Date: June 27, 2011. FOR FURTHER INFORMATION CONTACT: Scott Lindsay, David Lindgren, Nicholas Czajkowski, or Lingjun Wang, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482–0780, (202) 482– 3870, (202) 482–1395, and (202) 482– 2316, respectively. SUPPLEMENTARY INFORMATION: Background mstockstill on DSK4VPTVN1PROD with NOTICES On December 22, 2010, the Department published in the Federal Register the preliminary results of the 2008–2009 administrative review of the antidumping duty order on fresh garlic from the PRC. See Fresh Garlic from the People’s Republic of China: Preliminary Results of, Partial Rescission of, and Intent to Rescind, in Part, the 15th Antidumping Duty Administrative Review, 75 FR 80458 (December 22, 2010) (Preliminary Results).1 Since the Preliminary Results, the following events have occurred. On January 10, 2011, the Department extended the deadline for submission of surrogate value information to January 24, 2011; the Department also extended the deadline for submission of case briefs. On January 20, 2011, Xinboda timely requested a hearing to address the issues related to surrogate values. On January 24, 2011, the Fresh Garlic Producers Association (FGPA) and its individual members 2 (collectively, Petitioners) and Xinboda both timely submitted publicly available surrogate value data to value Xinboda’s factors of production. On January 13, 2011, and January 28, 2011, in accordance with 19 CFR 351.303(g), Jinxiang Hejia Co., Ltd. (Hejia) submitted two certifications which were not enclosed with the noshipments certificate that Hejia submitted on January 13, 2010. 1 The Department initiated this review for 84 producers/exporters. Based on timely withdrawal of requests for review, the Department rescinded the review with respect to 54 producers/exporters in the Preliminary Results. The remaining 30 producers/exporters are discussed in these final results. 2 The individual members of the FGPA are Christopher Ranch L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, Inc. VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 On February 3, 2011, both Petitioners and Xinboda submitted rebuttal comments concerning the valuation of factors of production. On February 4, 2011, Xinboda submitted photographs which were referenced in its submission made on February 3, 2011, but which were unavailable for filling at that time. On February 14, 2011, Petitioner submitted rebuttal comments to Xinboda’s February 3 submission concerning surrogate values for factors of production. On March 7, 2011, the Department issued a no-shipment inquiry to the U.S. Customs and Border Protection (CBP) regarding fresh garlic from the PRC exported by Hejia. On March 9, 2011, the Department placed the inquiry on the record of this review and notified interested parties.3 On March 25, 2011, Xinboda submitted a response to the third supplemental questionnaire. On April 1, 2011, the Department placed on the record of this review DLC Trading Inc.’s 2009 public request for a changed circumstances review, along with Xinboda’s 2010 response to the request and the Department’s decision not to initiate a changed circumstances review.4 On April 4, 2011, the Department issued a verification agenda to Xinboda. From April 12, 2011, through April 19, 2011, Department officials conducted verification of Xinboda and its affiliated producer, Zhengzhou Dadi Garlic Industry Co., Ltd. (Dadi). On April 28, 2011, upon return from the verification, the Department officials who conducted verification received an e-mail to which three photographs were attached. Because the e-mail and the attached photographs pertained to verification, and because the subject of this e-mail was similar to the claims made in the 2009 request for a changed circumstances review, the Department conducted various internet searches in an attempt to corroborate the information contained in the e-mail allegation. The results of our internet research called into question the facts on the record and the Department placed the e-mail and the results of our research on the record on May 9, 2011.5 3 See Memorandum to the File, Re: No Shipment Inquiry re Fresh Garlic from China Exported by Jinxiang Hejia Co., Ltd. (March 9, 2011). 4 See Memorandum to the File, Re: 15th Administrative Review of Antidumping Duty Order on Fresh Garlic from People’s Republic of China: Placing on the Record Documents Related to DLC Trading Co., Ltd.’s request for a Changed Circumstance Review of Shenzhen Xinboda Industrial Co., Ltd. (April 1, 2011) . 5 See Memorandum to the File, Re: 15th Administrative Review of Antidumping Duty Order on Fresh Garlic from People’s Republic of China: PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 On May 13, 2011, the Department released the verification report for Xinboda. Also on May 13, 2011, the Department notified the parties about the due dates for submitting factual information in accordance with 19 CFR 351.301(c)(1) ‘‘to rebut, clarify, or correct’’ the information placed on the record by the Department. At the same time, the Department set the schedule for the case briefs and rebuttal briefs. On May 20, 2011, Xinboda submitted its case brief and factual information to rebut or correct the information placed on the record by the Department. Also on May 20, 2011, Jinan Farmlady Trading Co., Ltd. submitted its comments. On May 27, 2011, after receiving a one-day extension from the Department, Petitioners submitted a rebuttal brief. On June 1, 2011, the Department returned the rebuttal brief to Petitioners due to untimely filed new factual information. On June 2, 2011, Xinboda requested the Department to strike further portions of Petitioners’ rebuttal brief. On June 3, 2011, Petitioners re-filed the rebuttal brief after removing untimely filed new factual information. Also on June 3, 2011, after determining that Petitioners had made affirmative arguments in the rebuttal brief, the Department requested Petitioners to strike the new arguments and resubmit the rebuttal brief. On June 6, 2011, Petitioners re-filed the rebuttal brief after removing the new arguments. On June 7, 2011, the Department conducted a hearing pursuant to Xinboda’s request mentioned above. On June 9, 2011, the Department placed on the record its response to Xinboda’s concern regarding administrative protective order (APO) access for DLC Trading, Inc.6 Period of Review The POR is November 1, 2008, through October 31, 2009. 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 the order Placing on the Record Documents and Information Related to Shenzhen Xinboda Industrial Co., Ltd. (May 9, 2011). 6 See Memorandum to the File, Re: Administrative Review of Fresh Garlic from the People’s Republic of China: APO Access for DLC Trading Inc. (June 9, 2011). E:\FR\FM\27JNN1.SGM 27JNN1 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices 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 nonfresh 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 U.S. Customs and Border Protection to that effect. Analysis of Comments Received mstockstill on DSK4VPTVN1PROD with NOTICES All issues addressed in the case and rebuttal briefs by parties in this review are discussed in the Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, regarding, ‘‘Issues and Decision Memorandum for the Final Results of the 15th Administrative Review of Fresh Garlic from the People’s Republic of China,’’ dated June 20, 2011 (Decision Memorandum), which is hereby adopted by this notice. A list of the issues that parties raised and to which we responded in the Decision Memorandum follows as Appendix I to this notice. The Decision Memorandum is a public document and is on file in the Central Records Unit (CRU), Main Commerce Building, Room 7046, and is also accessible on the Web at http:// ia.ita.doc.gov/frn. The paper copy and electronic version of the Decision Memorandum are identical in content. Changes Since the Preliminary Results Based on our review of the record, including additional information placed on the record by Hejia and the Department, the Department is rescinding the review with respect to Hejia. See ‘‘Final Rescission, in Part, VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 Based on No Shipments’’ section, below. Based on the surrogate value information placed on the record by the parties, and comments received from interested parties, the Department has revised the surrogate value for garlic bulbs by expanding the period during which prices for large-size garlic were averaged and by applying a garlicspecific wholesale price index. The Department has also changed the source of the financial ratios. In addition, based on the results of verification, the Department has added water as a factor of production and calculated a surrogate value for the water consumed in the production of subject merchandise at one of Xinboda/Dadi’s production facilities. Furthermore, as a result of verification, the Department has added freight between Xinboda/Dadi’s production facilities as a factor of production.7 Finally, in the Preliminary Results, the Department did not take into account in the margin program the inland freight reported by Xinboda for certain factors of production; we have corrected this omission for these final results. A full discussion of these changes and the Department’s calculations is contained in the Decision Memorandum, Final Calculation Memorandum 8 and Final SV Memorandum.9 Final Rescission, In Part, Based on No Shipments As discussed in the Preliminary Results, Hebei Golden Bird Trading Co., Ltd., Jinan Yipin Corporation Ltd., Jining Yongjia Trade Co., Ltd., Qingdao Tiantaixing Foods Co., Ltd., Shandong Chenhe Int’l Trading Co., Ltd., Qingdao Sea-line International Trading Co., Ltd., and Shanghai LJ International Trading Co. each timely certified that it had no shipments during the POR. After we verified the claims with CBP and examined CBP shipment data, the Department announced its intent to rescind the administrative review with respect to these companies in the Preliminary Results. No parties 7 See Memorandum to the File, Re: Verification of the Sales and Factors Response of Shenzhen Xinboda Industrial Co., Ltd. in the Antidumping Administrative Review of Fresh Garlic from People’s Republic of China (May 13, 2011) at 10– 11 and 19. 8 See Memorandum to the File, Re: Administrative Review of Fresh Garlic from the People’s Republic of China: Calculation Memorandum for the Final Results of Shenzhen Xinboda Industrial Co., Ltd. (June 20, 2011) (Final Calculation Memorandum). 9 See Memorandum to the File, Re: Administrative Review of Fresh Garlic from the People’s Republic of China: Surrogate Values for the Final Results (June 20, 2011) (Final SV Memorandum). PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 37323 commented on our preliminary intent to rescind. Thus, there is no information or argument on the record of the current review that warrants reconsidering our preliminary decision to rescind. Therefore, we are rescinding this administrative review with respect to all seven aforementioned companies. As noted above, Hejia certified it had no shipments during the POR. The Department confirmed Hejia’s claim by issuing a no-shipment inquiry to CBP and examining electronic CBP data.10 We received no responses from CBP regarding our no-shipment inquiry. Our examination of shipment data from CBP for Hejia indicated that there were no entries of subject merchandise which it exported during the POR and no information has been submitted to suggest that Hejia had shipments of subject merchandise during the POR. Therefore, we are rescinding this administrative review with respect to Hejia. Separate Rates In proceedings involving non-market economy (NME) countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is the Department’s policy to assign all exporters of subject merchandise in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be eligible for a separate rate.11 In the Preliminary Results, the Department found that Xinboda, Jinan Farmlady Trading Co., Ltd. (Farmlady), Qingdao Xintianfeng Foods Co., Ltd. (QXF), Shandong Longtai Fruits and Vegetables Co., Ltd. (Longtai), and Weifang Hongqiao International Logistic Co., Ltd. (Hongqiao) demonstrated their eligibility for separate rate status. See Preliminary Results, 75 FR at 80461. For the final results, we continue to find that the evidence placed on the record of this review by Xinboda, Farmlady, QXF, Longtai, and Hongqiao demonstrates both a de jure and de facto absence of government control, with respect to their exports of the merchandise under review, and, thus, these companies are eligible for separate rate status. The per-unit separate rate to 10 See Memorandum to the File, Re: No Shipment Inquiry re Fresh Garlic from China Exported by Jinxiang Hejia Co., Ltd. (March 9, 2011). 11 See Final Determination of Sales at Less Than Fair Value: Sparklers From the People’s Republic of China, 56 FR 20588 (May 6, 1991), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide From the People’s Republic of China, 59 FR 22585 (May 2, 1994). E:\FR\FM\27JNN1.SGM 27JNN1 37324 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices be applied to Farmlady, QXF, Longtai, and Hongqiao is discussed in the ‘‘Margin for the Separate Rate Companies’’ section, below. As discussed in the Preliminary Results, the Department found that Shenzhen Greening and Tianma Freezing, two mandatory respondents, did not respond to the initial questionnaire. Thus, these two companies have not demonstrated their eligibility for separate rate status and will be considered part of the PRC-Wide Entity for purposes of this review. See ‘‘Application of Total AFA to the PRCWide Entity’’ section, below. In addition, in the Preliminary Results, the Department found 16 other companies were part of the PRC-Wide Entity because they were subject to the review but did not submit separate rate documentation. Hejia was among these 16 companies but, as discussed above, the Department is rescinding its review. For the remaining 15 companies, there is no information on the record of this review that warrants reconsideration of our preliminary decision to consider them part of the PRC-wide entity. Therefore, the Department has found that these 15 companies, plus the two uncooperative mandatory respondents, are part of the PRC-Wide Entity. See Appendix II. mstockstill on DSK4VPTVN1PROD with NOTICES Margin for the Separate Rate Companies As discussed above, the Department continues to find that Farmlady, QXF, Longtai, and Hongqiao have demonstrated their eligibility for a separate rate. For the exporters subject to a review that are determined to be eligible for separate rate status, but are not selected as individually examined respondents, the Department generally weight-averages the rates calculated for the individually examined respondents, excluding any rates that are zero, de minimis, or adverse facts available (AFA).12 Consistent with the Department’s practice, in the Preliminary Results, the Department preliminarily determined that the margin to be assigned to these separate companies should be the rate calculated for the single cooperative mandatory respondent, Shenzhen Xinobda; for these final results, the Department continues to assign the rate calculated 12 See, e.g., Wooden Bedroom Furniture From the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review, Preliminary Results of New Shipper Review and Partial Rescission of Administrative Review, 73 FR 8273, 8279 (February 13, 2008), unchanged in Wooden Bedroom Furniture from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73 FR 49162 (August 20, 2008). VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 for the single cooperative mandatory respondent to Farmlady, QXF, Longtai, and Hongqiao. Verification As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), we verified the information submitted by Xinboda for use in our final results of review.13 We used standard verification procedures, including examination of relevant accounting and production records, as well as original source documents provided by Xinboda. Use of Facts Otherwise Available and AFA Section 776(a) of the Act provides that the Department shall apply ‘‘facts otherwise available’’ if (1) Necessary information is not on the record, or (2) an interested party or any other person (A) Withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act. Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the Department ‘‘shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority’’ if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties. 13 See Memorandum to the File, Re: Verification of the Sales and Factors Response of Shenzhen Xinboda Industrial Co., Ltd. in the Antidumping Duty Administrative Review of Fresh Garlic from the People’s Republic of China (May 9, 2011). PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. For the reasons discussed below, the Department determines that, in accordance with sections 776(a)(1), 776(a)(2) and 776(b) of the Act, the use of AFA is appropriate for the final results with respect to the PRC-Wide Entity, which includes Shenzhen Greening and Tianma Freezing. Application of Total AFA to the PRCWide Entity Because Shenzhen Greening and Tianma Freezing were selected as mandatory respondents, but did not respond to the initial questionnaire, they did not demonstrate eligibility for separate rate status. Thus, for purposes of this review, Shenzhen Greening and Tianma Freezing are considered part of the PRC-Wide Entity. Further, because these two companies, which are part of the PRC-Wide Entity, did not respond to the questionnaire, the Department determines that the PRC-Wide Entity withheld information requested by the Department in accordance with sections 776(a)(2)(A) and (B) of the Act, and significantly impeded the proceeding in accordance with section 776(a)(2)(C) of the Act. As a result, the Department is basing the dumping margin of the PRC-Wide Entity on the facts otherwise available on the record. No other party provided any additional information regarding the PRC-Wide Entity. In addition, because Shenzhen Greening and Tianma Freezing, which are part of the PRCWide Entity, failed to cooperate to the best of their ability, we find the PRCWide Entity did not provide the requested information, which was in the sole possession of the respondents and could not be obtained otherwise.14 Hence, pursuant to section 776(b) of the Act, the Department has determined 14 See Nippon Steel Corporation v. United States, 337 F.3d 1373, 1383 (Fed. Cir. 2003), where the Court of Appeals for the Federal Circuit (CAFC) provided an explanation of the ‘‘failure to act to the best of its ability’’ standard noting that the Department need not show intentional conduct existed on the part of the respondent, but merely that a ‘‘failure to cooperate to the best of a respondent’s ability’’ existed (i.e., information was not provided ‘‘under circumstances in which it is reasonable to concluded that less than full cooperation has been shown’’). E:\FR\FM\27JNN1.SGM 27JNN1 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices that, when selecting from among the facts otherwise available, an adverse inference is warranted with respect to the PRC-Wide Entity. mstockstill on DSK4VPTVN1PROD with NOTICES Selection of AFA Rate In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) The petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. The Department’s practice is to select an AFA rate that is sufficiently adverse ‘‘as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner’’ and that ensures ‘‘that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.’’ 15 Specifically, the Department’s practice in reviews, in selecting a rate as total AFA, is to use the highest rate on the record of the proceeding which, to the extent practicable, can be corroborated (assuming the rate is based on secondary information).16 The Court of International Trade (CIT) and the CAFC have affirmed decisions to select the highest margin from any prior segment of the proceeding as the AFA rate on numerous occasions.17 In choosing the 15 See Notice of Final Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the People’s Republic of China: Final Results and Partial Rescission of the Seventh Administrative Review; Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the Statement of Administrative Action accompany the Uruguay Round Agreement Act, H.R. Rep. No. 316, 103d Cong., 2d Sess. 870 (SAA). 16 See Glycine from the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 74 FR 15930, 15934 (April 8, 2009), unchanged in Glycine From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT August 10, 2009) (‘‘Commerce may, of course, begin its total AFA selection process by defaulting to the highest rate in any segment of the proceeding, but that selection must then be corroborated, to the extent practicable.’’). 17 See, e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (affirming a 73.55 percent total AFA rate, the highest available dumping margin calculated for a different respondent in the investigation); Kompass Food Trading International v. United States, 24 CIT 678, 683–84 (2000) (affirming a 51.16 percent total AFA rate, the highest available dumping margin for a different, fully cooperative respondent); and Shanghai Taoen International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 1339, 1348 (CIT 2005) (affirming a 223.01 percent total AFA rate, the highest available dumping margin for a different respondent in a previous administrative review). VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 appropriate balance between providing a respondent with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent’s prior commercial activity, selecting the highest prior margin reflects ‘‘a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.’’ 18 Therefore, as AFA, the Department has assigned the PRC-Wide Entity a dumping margin of $4.71 per kilogram, the highest calculated per-unit rate on the record of any segment of this proceeding. Corroboration of Secondary Information Used as AFA Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise.19 To corroborate means that the Department will satisfy itself that the secondary information to be used has probative value.20 To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used.21 Independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation.22 18 Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (CAFC 1990). 19 See SAA. 20 See id. 21 See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan: Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6, 1996), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outsider Diameter, and Components Thereof, From Japan: Final Results of Antidumping Duty Administrative Reviews and Termination in Part, 62 FR 11825 (March 13, 1997). 22 See Notice of Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 37325 As discussed above, the $4.71 per kilogram is the highest rate on the record of any segment of this antidumping duty order. This rate was calculated using the ad valorem rate contained in the petition in the original investigation of garlic from the PRC and was applied to the PRC-Wide Entity in the immediately preceding administrative review.23 Furthermore, no information has been presented in this review that calls into question the reliability of the information, thus, the Department finds that the information is reliable. With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin.24 Similarly, the Department does not apply a margin that has been discredited.25 None of these circumstances are present with respect to the rate being used here. Moreover, the rate selected is the rate currently applicable to the PRC-Wide Entity. The CAFC has held that the Department ‘‘is permitted to use a ‘common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.’ ’’ 26 In this regard, we note that no party has provided information related to the PRC-Wide Entity’s actual rate of dumping and we have not received any comments on this matter. As there is no information on the record of this review that demonstrates that this rate is not appropriate to use as AFA for the PRCWide Entity in the current review, we determine that this rate has relevance. Voltage Ceramic Station Post Insulators from Japan, 68 FR 35627 (June 16, 2003), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: High and Ultra High Voltage Ceramic Station Post Insulators from Japan, 68 FR 62560 (November 5, 2003); and Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181, 12183–84 (March 11, 2005). 23 See, e.g., Fresh Garlic from the People’s Republic of China: Final Results and Partial Rescission of the 14th Antidumping Duty Administrative Review, 75 FR 34976 (June 21, 2010). 24 See, e.g., Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996). 25 See D&L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). 26 KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (quoting Rhome Poulenc, Inc. v. United States, 899 F.2d at 1190). E:\FR\FM\27JNN1.SGM 27JNN1 37326 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices As this rate is both reliable and relevant, we determine that it has probative value, and is thus in accordance with the requirement under section 776(c) of the Act, that secondary information be corroborated to the extent practicable. Final Results of Review As a result of our review, we determine that the following margins exist for the period November 1, 2008, through October 31, 2009.27 Weighted-average margin (dollars per kilogram) Manufacturer/exporter Shenzhen Xinboda Industrial Co., Ltd ........................................................................................................................................... Jinan Farmlady Trading Co., Ltd ................................................................................................................................................... Qingdao Xintianfeng Foods Co., Ltd ............................................................................................................................................. Shandong Longtai Fruits and Vegetables Co., Ltd ....................................................................................................................... Weifang Hongqiao International Logistic Co., Ltd ......................................................................................................................... PRC-Wide Entity (see Appendix II) ............................................................................................................................................... Assessment Rates Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. The Department will direct CBP to assess importer-specific assessment rates based on the resulting per-unit (i.e., per kilogram) amount on each entry of the subject merchandise during the POR. The Department intends to issue appropriate assessment instructions for such companies directly to CBP 15 days after the publication of this notice in the Federal Register. mstockstill on DSK4VPTVN1PROD with NOTICES Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in these final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of $4.71 per kilogram; and (4) for all non-PRC exporters of subject merchandise which 27 As discussed in the Preliminary Results, the Department selected four mandatory respondents. VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These requirements, when imposed, shall remain in effect until further notice. Notification to Importers This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department’s presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties. Notification to Interested Parties This notice also serves as a reminder to parties subject to an APO of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with regulations and terms of an APO is a violation which is subject to sanction. $0.06 0.06 0.06 0.06 0.06 4.71 We are issuing and publishing this notice of these final results in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: June 20, 2011. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. Appendix I Comment 1: Whether the Application of Total Adverse Facts Available to Xinboda Is Warranted Comment 2: Whether the Department Properly Compiled the Record Regarding Allegations Against Xinboda Comment 3: Surrogate Values for Garlic Bulbs Comment 4: Wholesale Price Index Comment 5: Xinboda’s Water Valuation Comment 6: Surrogate Financial Ratios Comment 7: Surrogate Wage Rates Comment 8: Partial Rescission in Administrative Reviews Comment 9: Means To Exclude Separate Rate Companies From Administrative Reviews Comment 10: Zeroing in Administrative Reviews Appendix II In accordance with 19 CFR 351.224(b), we will disclose the calculations performed for these final results to parties in this proceeding within five days of the date of publication of this notice. Companies under Review Subject to the PRCWide Entity Rate 1. Anqiu Friend Food Co., Ltd. 2. Chengwu County Yuanxiang Industry & Commerce Co., Ltd. 3. Heze Ever-Best International Trade Co., Ltd. (f/k/a Shandong Heze International Trade and Developing Company) 4. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang Eastward Shipping Import and Export Limited Company). 5. Jinxiang Shanyang Freezing Storage Co., Ltd. 6. Linshu Dading Private Agricultural Products Co., Ltd. 7. Qingdao Saturn International Trade Co., Ltd. 8. Qufu Dongbao Import & Export Trade Co., Ltd. 9. Shandong Wonderland Organic Food Co., Ltd. In the Preliminary Results, the Department rescinded this review with respect to Harmoni and found Tianma Freezing and Shenzhen Greening to be part of the PRC-Wide Entity. Disclosure PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\27JNN1.SGM 27JNN1 Federal Register / Vol. 76, No. 123 / Monday, June 27, 2011 / Notices 10. Shanghai Ever Rich Trade Company 11. Shenzhen Fanhui Import & Export Co., Ltd. 12. Taian Fook Huat Tong Kee Pte. Ltd. 13. Taiyan Ziyang Food Co., Ltd. 14. Weifang Shennong Foodstuff Co., Ltd. 15. XuZhou Simple Garlic Industry Co., Ltd. 16. Jinxiang Tianma Freezing Storage Co., Ltd. 17. Shenzhen Greening Trading Co., Ltd. [FR Doc. 2011–16072 Filed 6–24–11; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XA504 Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; request for comments. AGENCY: The Regional Administrator, Southwest Region, NMFS, has made a preliminary determination that an application for an Exempted Fishing Permit (EFP) warrants further consideration. The application was submitted by members of the Pacific sardine fishing industry who request an exemption from seasonal closures of the directed fishery to conduct a survey designed to estimate the population size of Pacific sardine. NMFS requests public comment on the application. NMFS will make a final decision about whether to issue an EFP after consideration of those comments. DATES: Comments must be received by July 12, 2011. ADDRESSES: You may submit comments on this notice identified by 0648–XA504 by any one of the following methods: • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802. • Fax: (562) 980–4047, Att: Joshua Lindsay. FOR FURTHER INFORMATION CONTACT: A copy of the application can be viewed at the following Web site: http:// swr.nmfs.noaa.gov; or by contacting Joshua Lindsay, Southwest Region, NMFS, (562) 980–4034; joshua.lindsay@noaa.gov. SUPPLEMENTARY INFORMATION: On May 25, 2011, NMFS published a final rule implementing the harvest guideline mstockstill on DSK4VPTVN1PROD with NOTICES SUMMARY: VerDate Mar<15>2010 16:51 Jun 24, 2011 Jkt 223001 (HG) and annual specifications for the 2011 Pacific sardine fishing season off the U.S. West Coast (76 FR 30276). As part of these management measures the Council recommended, and NMFS approved, that 4,200 metric tons (mt) of the maximum harvest guideline (HG) be initially subtracted and set aside for potential industry-based research projects. Members of the Pacific sardine fishing industry, concerned about the difficulty of securing fishing vessels for research purposes during the normal fishing season, requested this separate allocation so that they could conduct research fishing activities after fishing is closed. The 4,200 mt set-aside was intended to allow for potential research fishing in the second seasonal period (July 1–September 14, 2009) and third seasonal period (September 15– December 31, 2009), to continue if that period’s directed fishery allocation is reached and directed fishing is closed. An EFP is required to conduct the fishing activities proposed by the applicants to occur when directed fishing is otherwise not allowed. At the March 2011 Council meeting, the Council reviewed an EFP application that proposed to utilize 2,700 mt of the 4,200 mt initially set aside. The applicants proposed using 2,700 mt to replicate the summer survey conducted under similar EFPs in 2009 and 2010, but with an expanded sample size. The proposal went forward for public comment and was reviewed by the Council again at their April meeting, at which time the Council recommended that NMFS approve and issue the EFP. Any public comment received in response to this notice will be considered by NMFS in determining whether to approve and issue the EFP. One of the goals set forth in the EFP application is the development of an index of biomass for Pacific sardine, with the desire that this index be included in the subsequent Pacific sardine stock assessment. If NMFS does not issue an EFP, then the set-aside will be re-allocated to the directed harvest allocation of the third allocation period. Any research set aside attributed to an EFP for use during the closed fishing time in the second allocation period (prior to September 15), but not utilized, would also roll into the directed fishery allocation for the third allocation period. Authority: 16 U.S.C. 1801 et seq. Dated: June 22, 2011. Margo Schulze-Haugen, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. 2011–16037 Filed 6–24–11; 8:45 am] BILLING CODE 3510–22–P PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 37327 DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XA518 Endangered Species; File No. 16253 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Notice; receipt of application. AGENCY: Notice is hereby given that NMFS Southeast Fisheries Science Center (SEFSC; Responsible Party: Bonnie Ponwith), has applied in due form for a permit to take green (Chelonia mydas), Kemp’s ridley (Lepidochelys kempii), hawksbill (Eretmochelys imbricata), leatherback (Dermochelys coriacea), olive ridley (Lepidochelys olivacea), and loggerhead (Caretta caretta) sea turtles for scientific research. SUMMARY: Written, telefaxed, or e-mail comments must be received on or before July 27, 2011. ADDRESSES: The application and related documents are available for review by selecting ‘‘Records Open for Public Comment’’ from the Features box on the Applications and Permits for Protected Species (APPS) home page, https:// apps.nmfs.noaa.gov, and then selecting File No. 16253 from the list of available applications. These documents are also available upon written request or by appointment in the following offices: Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)427–8401; fax (301)713–0376; Northeast Region, NMFS, 55 Great Republic Drive, Gloucester, MA 01930; phone (978)281–9328; fax (978)281– 9394; and Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, Florida 33701; phone (727)824–5312; fax (727)824–5309. Written comments on this application should be submitted to the Chief, Permits, Conservation and Education Division • by e-mail to NMFS.Pr1Comments@noaa.gov (include the File No. in the subject line of the email), • by facsimile to (301)713–0376, or • at the address listed above. Those individuals requesting a public hearing should submit a written request to the Chief, Permits, Conservation and Education Division at the address listed DATES: E:\FR\FM\27JNN1.SGM 27JNN1

Agencies

[Federal Register Volume 76, Number 123 (Monday, June 27, 2011)]
[Notices]
[Pages 37321-37327]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16072]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


Fresh Garlic From the People's Republic of China: Final Results 
and Final Rescission, in Part, of the 2008-2009 Antidumping Duty 
Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On December 22, 2010, the Department of Commerce (Department) 
published the preliminary results of the administrative review of the 
antidumping duty order on Fresh Garlic from the People's Republic of 
China (PRC) covering the period of review (POR) of November 1, 2008, 
through October 31, 2009.
    Based on the analysis of the record and the comments received, the 
Department has made certain changes to the margin calculation for the 
individually examined respondent, Shenzhen Xinboda Industrial Co. Ltd. 
(Xinboda). The Department also has assigned a separate rate to four 
fully-cooperative producers/exporters which were not selected for 
individual examination, but which demonstrated their eligibility for 
separate rate status. In addition, the Department is rescinding the 
review with respect to eight exporters who timely submitted ``no 
shipment'' certifications. Finally, the Department finds that 17 
companies subject to this review, including mandatory respondents, 
Jinxiang Tianma Freezing Storage Co., Ltd.

[[Page 37322]]

(Tianma Freezing) and Shenzhen Greening Trading Co. Ltd. (Shenzhen 
Greening), did not demonstrate their eligibility for separate rate 
status and thus will be considered part of the PRC-Wide Entity for 
purposes of these final results.

DATES: Effective Date: June 27, 2011.

FOR FURTHER INFORMATION CONTACT: Scott Lindsay, David Lindgren, 
Nicholas Czajkowski, or Lingjun Wang, AD/CVD Operations, Office 6, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone: (202) 482-0780, (202) 482-3870, (202) 
482-1395, and (202) 482-2316, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On December 22, 2010, the Department published in the Federal 
Register the preliminary results of the 2008-2009 administrative review 
of the antidumping duty order on fresh garlic from the PRC. See Fresh 
Garlic from the People's Republic of China: Preliminary Results of, 
Partial Rescission of, and Intent to Rescind, in Part, the 15th 
Antidumping Duty Administrative Review, 75 FR 80458 (December 22, 2010) 
(Preliminary Results).\1\ Since the Preliminary Results, the following 
events have occurred.
---------------------------------------------------------------------------

    \1\ The Department initiated this review for 84 producers/
exporters. Based on timely withdrawal of requests for review, the 
Department rescinded the review with respect to 54 producers/
exporters in the Preliminary Results. The remaining 30 producers/
exporters are discussed in these final results.
---------------------------------------------------------------------------

    On January 10, 2011, the Department extended the deadline for 
submission of surrogate value information to January 24, 2011; the 
Department also extended the deadline for submission of case briefs. On 
January 20, 2011, Xinboda timely requested a hearing to address the 
issues related to surrogate values. On January 24, 2011, the Fresh 
Garlic Producers Association (FGPA) and its individual members \2\ 
(collectively, Petitioners) and Xinboda both timely submitted publicly 
available surrogate value data to value Xinboda's factors of 
production.
---------------------------------------------------------------------------

    \2\ The individual members of the FGPA are Christopher Ranch 
L.L.C., The Garlic Company, Valley Garlic, and Vessey and Company, 
Inc.
---------------------------------------------------------------------------

    On January 13, 2011, and January 28, 2011, in accordance with 19 
CFR 351.303(g), Jinxiang Hejia Co., Ltd. (Hejia) submitted two 
certifications which were not enclosed with the no-shipments 
certificate that Hejia submitted on January 13, 2010.
    On February 3, 2011, both Petitioners and Xinboda submitted 
rebuttal comments concerning the valuation of factors of production. On 
February 4, 2011, Xinboda submitted photographs which were referenced 
in its submission made on February 3, 2011, but which were unavailable 
for filling at that time. On February 14, 2011, Petitioner submitted 
rebuttal comments to Xinboda's February 3 submission concerning 
surrogate values for factors of production.
    On March 7, 2011, the Department issued a no-shipment inquiry to 
the U.S. Customs and Border Protection (CBP) regarding fresh garlic 
from the PRC exported by Hejia. On March 9, 2011, the Department placed 
the inquiry on the record of this review and notified interested 
parties.\3\
---------------------------------------------------------------------------

    \3\ See Memorandum to the File, Re: No Shipment Inquiry re Fresh 
Garlic from China Exported by Jinxiang Hejia Co., Ltd. (March 9, 
2011).
---------------------------------------------------------------------------

    On March 25, 2011, Xinboda submitted a response to the third 
supplemental questionnaire.
    On April 1, 2011, the Department placed on the record of this 
review DLC Trading Inc.'s 2009 public request for a changed 
circumstances review, along with Xinboda's 2010 response to the request 
and the Department's decision not to initiate a changed circumstances 
review.\4\ On April 4, 2011, the Department issued a verification 
agenda to Xinboda. From April 12, 2011, through April 19, 2011, 
Department officials conducted verification of Xinboda and its 
affiliated producer, Zhengzhou Dadi Garlic Industry Co., Ltd. (Dadi). 
On April 28, 2011, upon return from the verification, the Department 
officials who conducted verification received an e-mail to which three 
photographs were attached. Because the e-mail and the attached 
photographs pertained to verification, and because the subject of this 
e-mail was similar to the claims made in the 2009 request for a changed 
circumstances review, the Department conducted various internet 
searches in an attempt to corroborate the information contained in the 
e-mail allegation. The results of our internet research called into 
question the facts on the record and the Department placed the e-mail 
and the results of our research on the record on May 9, 2011.\5\
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    \4\ See Memorandum to the File, Re: 15th Administrative Review 
of Antidumping Duty Order on Fresh Garlic from People's Republic of 
China: Placing on the Record Documents Related to DLC Trading Co., 
Ltd.'s request for a Changed Circumstance Review of Shenzhen Xinboda 
Industrial Co., Ltd. (April 1, 2011) .
    \5\ See Memorandum to the File, Re: 15th Administrative Review 
of Antidumping Duty Order on Fresh Garlic from People's Republic of 
China: Placing on the Record Documents and Information Related to 
Shenzhen Xinboda Industrial Co., Ltd. (May 9, 2011).
---------------------------------------------------------------------------

    On May 13, 2011, the Department released the verification report 
for Xinboda. Also on May 13, 2011, the Department notified the parties 
about the due dates for submitting factual information in accordance 
with 19 CFR 351.301(c)(1) ``to rebut, clarify, or correct'' the 
information placed on the record by the Department. At the same time, 
the Department set the schedule for the case briefs and rebuttal 
briefs. On May 20, 2011, Xinboda submitted its case brief and factual 
information to rebut or correct the information placed on the record by 
the Department. Also on May 20, 2011, Jinan Farmlady Trading Co., Ltd. 
submitted its comments. On May 27, 2011, after receiving a one-day 
extension from the Department, Petitioners submitted a rebuttal brief. 
On June 1, 2011, the Department returned the rebuttal brief to 
Petitioners due to untimely filed new factual information. On June 2, 
2011, Xinboda requested the Department to strike further portions of 
Petitioners' rebuttal brief. On June 3, 2011, Petitioners re-filed the 
rebuttal brief after removing untimely filed new factual information. 
Also on June 3, 2011, after determining that Petitioners had made 
affirmative arguments in the rebuttal brief, the Department requested 
Petitioners to strike the new arguments and resubmit the rebuttal 
brief. On June 6, 2011, Petitioners re-filed the rebuttal brief after 
removing the new arguments.
    On June 7, 2011, the Department conducted a hearing pursuant to 
Xinboda's request mentioned above.
    On June 9, 2011, the Department placed on the record its response 
to Xinboda's concern regarding administrative protective order (APO) 
access for DLC Trading, Inc.\6\
---------------------------------------------------------------------------

    \6\ See Memorandum to the File, Re: Administrative Review of 
Fresh Garlic from the People's Republic of China: APO Access for DLC 
Trading Inc. (June 9, 2011).
---------------------------------------------------------------------------

Period of Review

    The POR is November 1, 2008, through October 31, 2009.

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 
the order

[[Page 37323]]

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 U.S. Customs and Border Protection to that effect.

Analysis of Comments Received

    All issues addressed in the case and rebuttal briefs by parties in 
this review are discussed in the Memorandum from Christian Marsh, 
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for 
Import Administration, regarding, ``Issues and Decision Memorandum for 
the Final Results of the 15th Administrative Review of Fresh Garlic 
from the People's Republic of China,'' dated June 20, 2011 (Decision 
Memorandum), which is hereby adopted by this notice. A list of the 
issues that parties raised and to which we responded in the Decision 
Memorandum follows as Appendix I to this notice. The Decision 
Memorandum is a public document and is on file in the Central Records 
Unit (CRU), Main Commerce Building, Room 7046, and is also accessible 
on the Web at http://ia.ita.doc.gov/frn. The paper copy and electronic 
version of the Decision Memorandum are identical in content.

Changes Since the Preliminary Results

    Based on our review of the record, including additional information 
placed on the record by Hejia and the Department, the Department is 
rescinding the review with respect to Hejia. See ``Final Rescission, in 
Part, Based on No Shipments'' section, below.
    Based on the surrogate value information placed on the record by 
the parties, and comments received from interested parties, the 
Department has revised the surrogate value for garlic bulbs by 
expanding the period during which prices for large-size garlic were 
averaged and by applying a garlic-specific wholesale price index. The 
Department has also changed the source of the financial ratios. In 
addition, based on the results of verification, the Department has 
added water as a factor of production and calculated a surrogate value 
for the water consumed in the production of subject merchandise at one 
of Xinboda/Dadi's production facilities. Furthermore, as a result of 
verification, the Department has added freight between Xinboda/Dadi's 
production facilities as a factor of production.\7\ Finally, in the 
Preliminary Results, the Department did not take into account in the 
margin program the inland freight reported by Xinboda for certain 
factors of production; we have corrected this omission for these final 
results. A full discussion of these changes and the Department's 
calculations is contained in the Decision Memorandum, Final Calculation 
Memorandum \8\ and Final SV Memorandum.\9\
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    \7\ See Memorandum to the File, Re: Verification of the Sales 
and Factors Response of Shenzhen Xinboda Industrial Co., Ltd. in the 
Antidumping Administrative Review of Fresh Garlic from People's 
Republic of China (May 13, 2011) at 10-11 and 19.
    \8\ See Memorandum to the File, Re: Administrative Review of 
Fresh Garlic from the People's Republic of China: Calculation 
Memorandum for the Final Results of Shenzhen Xinboda Industrial Co., 
Ltd. (June 20, 2011) (Final Calculation Memorandum).
    \9\ See Memorandum to the File, Re: Administrative Review of 
Fresh Garlic from the People's Republic of China: Surrogate Values 
for the Final Results (June 20, 2011) (Final SV Memorandum).
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Final Rescission, In Part, Based on No Shipments

    As discussed in the Preliminary Results, Hebei Golden Bird Trading 
Co., Ltd., Jinan Yipin Corporation Ltd., Jining Yongjia Trade Co., 
Ltd., Qingdao Tiantaixing Foods Co., Ltd., Shandong Chenhe Int'l 
Trading Co., Ltd., Qingdao Sea-line International Trading Co., Ltd., 
and Shanghai LJ International Trading Co. each timely certified that it 
had no shipments during the POR. After we verified the claims with CBP 
and examined CBP shipment data, the Department announced its intent to 
rescind the administrative review with respect to these companies in 
the Preliminary Results. No parties commented on our preliminary intent 
to rescind. Thus, there is no information or argument on the record of 
the current review that warrants reconsidering our preliminary decision 
to rescind. Therefore, we are rescinding this administrative review 
with respect to all seven aforementioned companies.
    As noted above, Hejia certified it had no shipments during the POR. 
The Department confirmed Hejia's claim by issuing a no-shipment inquiry 
to CBP and examining electronic CBP data.\10\ We received no responses 
from CBP regarding our no-shipment inquiry. Our examination of shipment 
data from CBP for Hejia indicated that there were no entries of subject 
merchandise which it exported during the POR and no information has 
been submitted to suggest that Hejia had shipments of subject 
merchandise during the POR. Therefore, we are rescinding this 
administrative review with respect to Hejia.
---------------------------------------------------------------------------

    \10\ See Memorandum to the File, Re: No Shipment Inquiry re 
Fresh Garlic from China Exported by Jinxiang Hejia Co., Ltd. (March 
9, 2011).
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Separate Rates

    In proceedings involving non-market economy (NME) countries, the 
Department begins with a rebuttable presumption that all companies 
within the country are subject to government control and, thus, should 
be assigned a single antidumping duty deposit rate. It is the 
Department's policy to assign all exporters of subject merchandise in 
an NME country this single rate unless an exporter can demonstrate that 
it is sufficiently independent so as to be eligible for a separate 
rate.\11\ In the Preliminary Results, the Department found that 
Xinboda, Jinan Farmlady Trading Co., Ltd. (Farmlady), Qingdao 
Xintianfeng Foods Co., Ltd. (QXF), Shandong Longtai Fruits and 
Vegetables Co., Ltd. (Longtai), and Weifang Hongqiao International 
Logistic Co., Ltd. (Hongqiao) demonstrated their eligibility for 
separate rate status. See Preliminary Results, 75 FR at 80461. For the 
final results, we continue to find that the evidence placed on the 
record of this review by Xinboda, Farmlady, QXF, Longtai, and Hongqiao 
demonstrates both a de jure and de facto absence of government control, 
with respect to their exports of the merchandise under review, and, 
thus, these companies are eligible for separate rate status. The per-
unit separate rate to

[[Page 37324]]

be applied to Farmlady, QXF, Longtai, and Hongqiao is discussed in the 
``Margin for the Separate Rate Companies'' section, below.
---------------------------------------------------------------------------

    \11\ See Final Determination of Sales at Less Than Fair Value: 
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 
1991), as further developed in Notice of Final Determination of 
Sales at Less Than Fair Value: Silicon Carbide From the People's 
Republic of China, 59 FR 22585 (May 2, 1994).
---------------------------------------------------------------------------

    As discussed in the Preliminary Results, the Department found that 
Shenzhen Greening and Tianma Freezing, two mandatory respondents, did 
not respond to the initial questionnaire. Thus, these two companies 
have not demonstrated their eligibility for separate rate status and 
will be considered part of the PRC-Wide Entity for purposes of this 
review. See ``Application of Total AFA to the PRC-Wide Entity'' 
section, below. In addition, in the Preliminary Results, the Department 
found 16 other companies were part of the PRC-Wide Entity because they 
were subject to the review but did not submit separate rate 
documentation. Hejia was among these 16 companies but, as discussed 
above, the Department is rescinding its review. For the remaining 15 
companies, there is no information on the record of this review that 
warrants reconsideration of our preliminary decision to consider them 
part of the PRC-wide entity. Therefore, the Department has found that 
these 15 companies, plus the two uncooperative mandatory respondents, 
are part of the PRC-Wide Entity. See Appendix II.

Margin for the Separate Rate Companies

    As discussed above, the Department continues to find that Farmlady, 
QXF, Longtai, and Hongqiao have demonstrated their eligibility for a 
separate rate. For the exporters subject to a review that are 
determined to be eligible for separate rate status, but are not 
selected as individually examined respondents, the Department generally 
weight-averages the rates calculated for the individually examined 
respondents, excluding any rates that are zero, de minimis, or adverse 
facts available (AFA).\12\ Consistent with the Department's practice, 
in the Preliminary Results, the Department preliminarily determined 
that the margin to be assigned to these separate companies should be 
the rate calculated for the single cooperative mandatory respondent, 
Shenzhen Xinobda; for these final results, the Department continues to 
assign the rate calculated for the single cooperative mandatory 
respondent to Farmlady, QXF, Longtai, and Hongqiao.
---------------------------------------------------------------------------

    \12\ See, e.g., Wooden Bedroom Furniture From the People's 
Republic of China: Preliminary Results of Antidumping Duty 
Administrative Review, Preliminary Results of New Shipper Review and 
Partial Rescission of Administrative Review, 73 FR 8273, 8279 
(February 13, 2008), unchanged in Wooden Bedroom Furniture from the 
People's Republic of China: Final Results of Antidumping Duty 
Administrative Review and New Shipper Review, 73 FR 49162 (August 
20, 2008).
---------------------------------------------------------------------------

Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended 
(the Act), we verified the information submitted by Xinboda for use in 
our final results of review.\13\ We used standard verification 
procedures, including examination of relevant accounting and production 
records, as well as original source documents provided by Xinboda.
---------------------------------------------------------------------------

    \13\ See Memorandum to the File, Re: Verification of the Sales 
and Factors Response of Shenzhen Xinboda Industrial Co., Ltd. in the 
Antidumping Duty Administrative Review of Fresh Garlic from the 
People's Republic of China (May 9, 2011).
---------------------------------------------------------------------------

Use of Facts Otherwise Available and AFA

    Section 776(a) of the Act provides that the Department shall apply 
``facts otherwise available'' if (1) Necessary information is not on 
the record, or (2) an interested party or any other person (A) 
Withholds information that has been requested, (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act, (C) significantly impedes a proceeding, or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party the 
opportunity to remedy or explain the deficiency. If the party fails to 
remedy the deficiency within the applicable time limits and subject to 
section 782(e) of the Act, the Department may disregard all or part of 
the original and subsequent responses, as appropriate.
    Section 782(e) of the Act provides that the Department ``shall not 
decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all 
applicable requirements established by the administering authority'' if 
the information is timely, can be verified, is not so incomplete that 
it cannot be used, and if the interested party acted to the best of its 
ability in providing the information. Where all of these conditions are 
met, the statute requires the Department to use the information 
supplied if it can do so without undue difficulties.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying the facts otherwise available when 
a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information. Such an adverse 
inference may include reliance on information derived from the 
petition, the final determination, a previous administrative review, or 
other information placed on the record. For the reasons discussed 
below, the Department determines that, in accordance with sections 
776(a)(1), 776(a)(2) and 776(b) of the Act, the use of AFA is 
appropriate for the final results with respect to the PRC-Wide Entity, 
which includes Shenzhen Greening and Tianma Freezing.

Application of Total AFA to the PRC-Wide Entity

    Because Shenzhen Greening and Tianma Freezing were selected as 
mandatory respondents, but did not respond to the initial 
questionnaire, they did not demonstrate eligibility for separate rate 
status. Thus, for purposes of this review, Shenzhen Greening and Tianma 
Freezing are considered part of the PRC-Wide Entity. Further, because 
these two companies, which are part of the PRC-Wide Entity, did not 
respond to the questionnaire, the Department determines that the PRC-
Wide Entity withheld information requested by the Department in 
accordance with sections 776(a)(2)(A) and (B) of the Act, and 
significantly impeded the proceeding in accordance with section 
776(a)(2)(C) of the Act.
    As a result, the Department is basing the dumping margin of the 
PRC-Wide Entity on the facts otherwise available on the record. No 
other party provided any additional information regarding the PRC-Wide 
Entity. In addition, because Shenzhen Greening and Tianma Freezing, 
which are part of the PRC-Wide Entity, failed to cooperate to the best 
of their ability, we find the PRC-Wide Entity did not provide the 
requested information, which was in the sole possession of the 
respondents and could not be obtained otherwise.\14\ Hence, pursuant to 
section 776(b) of the Act, the Department has determined

[[Page 37325]]

that, when selecting from among the facts otherwise available, an 
adverse inference is warranted with respect to the PRC-Wide Entity.
---------------------------------------------------------------------------

    \14\ See Nippon Steel Corporation v. United States, 337 F.3d 
1373, 1383 (Fed. Cir. 2003), where the Court of Appeals for the 
Federal Circuit (CAFC) provided an explanation of the ``failure to 
act to the best of its ability'' standard noting that the Department 
need not show intentional conduct existed on the part of the 
respondent, but merely that a ``failure to cooperate to the best of 
a respondent's ability'' existed (i.e., information was not provided 
``under circumstances in which it is reasonable to concluded that 
less than full cooperation has been shown'').
---------------------------------------------------------------------------

Selection of AFA Rate

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) provide that the Department may rely on 
information derived from (1) The petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
information placed on the record. The Department's practice is to 
select an AFA rate that is sufficiently adverse ``as to effectuate the 
purpose of the facts available rule to induce respondents to provide 
the Department with complete and accurate information in a timely 
manner'' and that ensures ``that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully.'' \15\ Specifically, the Department's practice in reviews, in 
selecting a rate as total AFA, is to use the highest rate on the record 
of the proceeding which, to the extent practicable, can be corroborated 
(assuming the rate is based on secondary information).\16\ The Court of 
International Trade (CIT) and the CAFC have affirmed decisions to 
select the highest margin from any prior segment of the proceeding as 
the AFA rate on numerous occasions.\17\ In choosing the appropriate 
balance between providing a respondent with an incentive to respond 
accurately and imposing a rate that is reasonably related to the 
respondent's prior commercial activity, selecting the highest prior 
margin reflects ``a common sense inference that the highest prior 
margin is the most probative evidence of current margins, because, if 
it were not so, the importer, knowing of the rule, would have produced 
current information showing the margin to be less.'' \18\ Therefore, as 
AFA, the Department has assigned the PRC-Wide Entity a dumping margin 
of $4.71 per kilogram, the highest calculated per-unit rate on the 
record of any segment of this proceeding.
---------------------------------------------------------------------------

    \15\ See Notice of Final Determination of Sales at Less than 
Fair Value: Static Random Access Memory Semiconductors From Taiwan, 
63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the 
People's Republic of China: Final Results and Partial Rescission of 
the Seventh Administrative Review; Final Results of the Eleventh New 
Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the 
Statement of Administrative Action accompany the Uruguay Round 
Agreement Act, H.R. Rep. No. 316, 103d Cong., 2d Sess. 870 (SAA).
    \16\ See Glycine from the People's Republic of China: 
Preliminary Results of Antidumping Duty Administrative Review, 74 FR 
15930, 15934 (April 8, 2009), unchanged in Glycine From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu 
Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT 
August 10, 2009) (``Commerce may, of course, begin its total AFA 
selection process by defaulting to the highest rate in any segment 
of the proceeding, but that selection must then be corroborated, to 
the extent practicable.'').
    \17\ See, e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 
1335 (CIT 2004) (affirming a 73.55 percent total AFA rate, the 
highest available dumping margin calculated for a different 
respondent in the investigation); Kompass Food Trading International 
v. United States, 24 CIT 678, 683-84 (2000) (affirming a 51.16 
percent total AFA rate, the highest available dumping margin for a 
different, fully cooperative respondent); and Shanghai Taoen 
International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 
1339, 1348 (CIT 2005) (affirming a 223.01 percent total AFA rate, 
the highest available dumping margin for a different respondent in a 
previous administrative review).
    \18\ Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 
(CAFC 1990).
---------------------------------------------------------------------------

Corroboration of Secondary Information Used as AFA

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation or review, it shall, to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at its disposal. Secondary information is defined as 
information derived from the petition that gave rise to the 
investigation or review, the final determination concerning the subject 
merchandise, or any previous review under section 751 of the Act 
concerning the subject merchandise.\19\ To corroborate means that the 
Department will satisfy itself that the secondary information to be 
used has probative value.\20\ To corroborate secondary information, the 
Department will, to the extent practicable, examine the reliability and 
relevance of the information to be used.\21\ Independent sources used 
to corroborate such evidence may include, for example, published price 
lists, official import statistics and customs data, and information 
obtained from interested parties during the particular 
investigation.\22\
---------------------------------------------------------------------------

    \19\ See SAA.
    \20\ See id.
    \21\ See Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan: 
Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outsider Diameter, and Components 
Thereof, From Japan: Final Results of Antidumping Duty 
Administrative Reviews and Termination in Part, 62 FR 11825 (March 
13, 1997).
    \22\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value: High and Ultra-High Voltage Ceramic Station Post 
Insulators from Japan, 68 FR 35627 (June 16, 2003), unchanged in 
Notice of Final Determination of Sales at Less Than Fair Value: High 
and Ultra High Voltage Ceramic Station Post Insulators from Japan, 
68 FR 62560 (November 5, 2003); and Notice of Final Determination of 
Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181, 
12183-84 (March 11, 2005).
---------------------------------------------------------------------------

    As discussed above, the $4.71 per kilogram is the highest rate on 
the record of any segment of this antidumping duty order. This rate was 
calculated using the ad valorem rate contained in the petition in the 
original investigation of garlic from the PRC and was applied to the 
PRC-Wide Entity in the immediately preceding administrative review.\23\ 
Furthermore, no information has been presented in this review that 
calls into question the reliability of the information, thus, the 
Department finds that the information is reliable. With respect to the 
relevance aspect of corroboration, the Department will consider 
information reasonably at its disposal to determine whether a margin 
continues to have relevance. Where circumstances indicate that the 
selected margin is not appropriate as AFA, the Department will 
disregard the margin and determine an appropriate margin.\24\ 
Similarly, the Department does not apply a margin that has been 
discredited.\25\ None of these circumstances are present with respect 
to the rate being used here.
---------------------------------------------------------------------------

    \23\ See, e.g., Fresh Garlic from the People's Republic of 
China: Final Results and Partial Rescission of the 14th Antidumping 
Duty Administrative Review, 75 FR 34976 (June 21, 2010).
    \24\ See, e.g., Fresh Cut Flowers From Mexico; Final Results of 
Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 
22, 1996).
    \25\ See D&L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated).
---------------------------------------------------------------------------

    Moreover, the rate selected is the rate currently applicable to the 
PRC-Wide Entity. The CAFC has held that the Department ``is permitted 
to use a `common sense inference that the highest prior margin is the 
most probative evidence of current margins because, if it were not so, 
the importer, knowing of the rule, would have produced current 
information showing the margin to be less.' '' \26\ In this regard, we 
note that no party has provided information related to the PRC-Wide 
Entity's actual rate of dumping and we have not received any comments 
on this matter. As there is no information on the record of this review 
that demonstrates that this rate is not appropriate to use as AFA for 
the PRC-Wide Entity in the current review, we determine that this rate 
has relevance.

[[Page 37326]]

As this rate is both reliable and relevant, we determine that it has 
probative value, and is thus in accordance with the requirement under 
section 776(c) of the Act, that secondary information be corroborated 
to the extent practicable.
---------------------------------------------------------------------------

    \26\ KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) 
(quoting Rhome Poulenc, Inc. v. United States, 899 F.2d at 1190).
---------------------------------------------------------------------------

Final Results of Review

    As a result of our review, we determine that the following margins 
exist for the period November 1, 2008, through October 31, 2009.\27\
---------------------------------------------------------------------------

    \27\ As discussed in the Preliminary Results, the Department 
selected four mandatory respondents. In the Preliminary Results, the 
Department rescinded this review with respect to Harmoni and found 
Tianma Freezing and Shenzhen Greening to be part of the PRC-Wide 
Entity.

------------------------------------------------------------------------
                                                        Weighted-average
                Manufacturer/exporter                   margin  (dollars
                                                         per kilogram)
------------------------------------------------------------------------
Shenzhen Xinboda Industrial Co., Ltd.................              $0.06
Jinan Farmlady Trading Co., Ltd......................               0.06
Qingdao Xintianfeng Foods Co., Ltd...................               0.06
Shandong Longtai Fruits and Vegetables Co., Ltd......               0.06
Weifang Hongqiao International Logistic Co., Ltd.....               0.06
PRC-Wide Entity (see Appendix II)....................               4.71
------------------------------------------------------------------------

Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), 
the Department will determine, and CBP shall assess, antidumping duties 
on all appropriate entries of subject merchandise in accordance with 
the final results of this review. The Department will direct CBP to 
assess importer-specific assessment rates based on the resulting per-
unit (i.e., per kilogram) amount on each entry of the subject 
merchandise during the POR. The Department intends to issue appropriate 
assessment instructions for such companies directly to CBP 15 days 
after the publication of this notice in the Federal Register.

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters 
listed above, the cash deposit rate will be the rate established in 
these final results of review (except, if the rate is zero or de 
minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be 
required for that company); (2) for previously investigated or reviewed 
PRC and non-PRC exporters not listed above that have separate rates, 
the cash deposit rate will continue to be the exporter-specific rate 
published for the most recent period; (3) for all PRC exporters of 
subject merchandise which have not been found to be entitled to a 
separate rate, the cash deposit rate will be the PRC-wide rate of $4.71 
per kilogram; and (4) for all non-PRC exporters of subject merchandise 
which have not received their own rate, the cash deposit rate will be 
the rate applicable to the PRC exporter that supplied that non-PRC 
exporter. These requirements, when imposed, shall remain in effect 
until further notice.

Notification to Importers

    This notice also serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Department's presumption that 
reimbursement of the antidumping duties occurred and the subsequent 
assessment of double antidumping duties.

Notification to Interested Parties

    This notice also serves as a reminder to parties subject to an APO 
of their responsibility concerning the return or destruction of 
proprietary information disclosed under APO in accordance with 19 CFR 
351.305(a)(3), which continues to govern business proprietary 
information in this segment of the proceeding. Timely written 
notification of the return/destruction of APO materials or conversion 
to judicial protective order is hereby requested. Failure to comply 
with regulations and terms of an APO is a violation which is subject to 
sanction.

Disclosure

    In accordance with 19 CFR 351.224(b), we will disclose the 
calculations performed for these final results to parties in this 
proceeding within five days of the date of publication of this notice.
    We are issuing and publishing this notice of these final results in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: June 20, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.

Appendix I

Comment 1: Whether the Application of Total Adverse Facts Available 
to Xinboda Is Warranted
Comment 2: Whether the Department Properly Compiled the Record 
Regarding Allegations Against Xinboda
Comment 3: Surrogate Values for Garlic Bulbs
Comment 4: Wholesale Price Index
Comment 5: Xinboda's Water Valuation
Comment 6: Surrogate Financial Ratios
Comment 7: Surrogate Wage Rates
Comment 8: Partial Rescission in Administrative Reviews
Comment 9: Means To Exclude Separate Rate Companies From 
Administrative Reviews
Comment 10: Zeroing in Administrative Reviews

Appendix II

Companies under Review Subject to the PRC-Wide Entity Rate
    1. Anqiu Friend Food Co., Ltd.
    2. Chengwu County Yuanxiang Industry & Commerce Co., Ltd.
    3. Heze Ever-Best International Trade Co., Ltd. (f/k/a Shandong 
Heze International Trade and Developing Company)
    4. Jinxiang Dongyun Freezing Storage Co., Ltd. (a/k/a Jinxiang 
Eastward Shipping Import and Export Limited Company).
    5. Jinxiang Shanyang Freezing Storage Co., Ltd.
    6. Linshu Dading Private Agricultural Products Co., Ltd.
    7. Qingdao Saturn International Trade Co., Ltd.
    8. Qufu Dongbao Import & Export Trade Co., Ltd.
    9. Shandong Wonderland Organic Food Co., Ltd.

[[Page 37327]]

    10. Shanghai Ever Rich Trade Company
    11. Shenzhen Fanhui Import & Export Co., Ltd.
    12. Taian Fook Huat Tong Kee Pte. Ltd.
    13. Taiyan Ziyang Food Co., Ltd.
    14. Weifang Shennong Foodstuff Co., Ltd.
    15. XuZhou Simple Garlic Industry Co., Ltd.
    16. Jinxiang Tianma Freezing Storage Co., Ltd.
    17. Shenzhen Greening Trading Co., Ltd.

[FR Doc. 2011-16072 Filed 6-24-11; 8:45 am]
BILLING CODE 3510-DS-P