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]
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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:
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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
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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:
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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:
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(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
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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.
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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:
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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).
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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
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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 https://
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,
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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).
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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).
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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).
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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).
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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’’).
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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).
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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
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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
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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.
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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
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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: https://
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
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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
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]]>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]
-----------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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 https://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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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
