Fresh Garlic From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results, 4769-4770 [2019-02585]

Download as PDF Federal Register / Vol. 84, No. 33 / Tuesday, February 19, 2019 / Notices DEPARTMENT OF COMMERCE International Trade Administration [A–570–831] Fresh Garlic From the People’s Republic of China: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: On January 30, 2019, the United States Court of International Trade (the CIT) entered final judgment sustaining the Department of Commerce’s (Commerce) second remand results pertaining to the fifteenth administrative review of the antidumping duty order on fresh garlic from the People’s Republic of China (China) for Shenzhen Xinboda Industrial Co., Ltd. (Xinboda). Commerce is notifying the public that the final judgment in this case is not in harmony with the final results and partial rescission of the fifteenth antidumping duty administrative review, and that Commerce has amended the dumping margin found for Xinboda. DATES: Applicable February 19, 2019. FOR FURTHER INFORMATION CONTACT: Alexander Cipolla, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–4956. SUPPLEMENTARY INFORMATION: AGENCY: Background tkelley on DSKBCP9HB2PROD with NOTICES On June 27, 2011, Commerce published the Final Results pertaining to mandatory respondent Xinboda, along with other exporters.1 In the Final Results, Commerce selected India as the primary surrogate country.2 Pursuant to section 773(c)(1) of the Tariff Act of 1930, as amended (the Act), and applying our intermediate input methodology, Commerce used prices published for Azadpur in India to value whole raw garlic bulbs (bulbs). Commerce calculated a rate of $0.06 per kilogram for Xinboda, and the separate rate respondents.3 1 See Fresh Garlic from the People’s Republic of China: Final Results and Final Rescission, in Part, of the 2008–2009 Antidumping Duty Administrative Review, 76 FR 37321 (June 27, 2011) (Final Results) and accompanying Issues and Decision Memorandum (IDM). 2 See IDM. 3 See Final Results, 76 FR at 37326. VerDate Sep<11>2014 17:46 Feb 15, 2019 Jkt 247001 On April 16, 2014, the CIT remanded for Commerce to: (1) Consider information indicating the Azadpur bulb prices might involve a higher level of processing that potentially doublecounted processing of factors of production (FOPs) reported by Xinboda that Commerce included in normal value (NV); (2) consider information indicating that prices for grade A bulbs already reflect prices for grade S.A. bulbs; (3) explain why Tata Tea’s financial statements are useable, in light of information Xinboda provided allegedly indicating that Tata Tea received countervailable subsidies, and why Garlico Industries Limited’s (Garlico) statements are not useable; (4) explain further the intermediate labor methodology or revise the surrogate value (SV) for labor; and (5) explain why zeroing is permissible in nonmarket economy (NME) reviews.4 On August 4, 2014, Commerce filed the First Remand Results, revising Xinboda’s rate from $0.06 per kilogram to $0.02 per kilogram.5 In accordance with the First Remand Opinion, Commerce adjusted its NV calculation by removing the costs of self-produced and consumed green leaf from the surrogate manufacturing overhead ratio from Tata Tea. In addition, we revised our SV for labor, in compliance with Commerce’s current surrogate labor rate methodology. We revised our margin calculation to exclude the inland freight expense of transportation expenses for raw garlic bulbs from Indian growers to the Azadpur market.6 Commerce continued to rely on grade A and grade S.A. bulb data from the Azadpur market data, explaining that those prices were ‘‘more similar’’ to the input being valued and that the Researcher Declaration submitted by Xinboda was unreliable and did not undermine the Azadpur prices to the point of being unusable. Commerce also continued to rely on Tata Tea’s financial statements in order to value the surrogate financial ratios and gave a more fulsome explanation of Commerce’s practice in interpreting the ‘‘reason to believe or suspect’’ standard regarding whether financial statements contain evidence of countervailable subsidies. Finally, we continued to utilize our zeroing methodology. 4 See Shenzhen Xinboda Industrial Co., Ltd. v. United States, Slip Op. 14–45, Court No. 11–00267 (CIT 2014) (First Remand Opinion). 5 See ‘‘Final Results of Redetermination Pursuant to Remand, Shenzhen Xinboda Industrial Co., Ltd. v. United States, Court of International Trade No. 11–00267, Slip Op. 14–45,’’ dated August 14, 2014 (First Remand Results). 6 Id. at 6. PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 4769 On December 15, 2017, the CIT sustained Commerce’s application of its zeroing methodology, and the SV for labor in the First Remand Results.7 However, the Court again remanded the First Remand Results for Commerce to reconsider the SV for whole raw garlic bulbs and the selection of surrogate financial statements.8 Per the Court’s instructions, Commerce recalculated Xinboda’s rate using only the contemporaneous grade A bulb prices from the Azadpur data. In addition, as directed by the Court, Commerce adjusted the surrogate bulb value in order to reflect the expenses associated with intermediaries and further processing of the garlic bulb. Moreover, Commerce continued to apply financial ratios derived from the 2010 unconsolidated financial statements of Tata Tea, after further explaining our practice regarding the ‘‘reason to believe or suspect’’ standard for countervailable subsidies in financial statements.9 The calculations performed in the Second Remand Results resulted in a weightedaverage dumping margin of $0.00 per kilogram for Xinboda. On January 30, 2019, the CIT sustained Commerce’s Second Remand Results with respect to the fifteenth administrative review of the AD order on fresh garlic from China.10 Timken Notice In its decision in Timken,11 as clarified by Diamond Sawblades,12 the Court of Appeals for the Federal Circuit held that, pursuant to section 516A(e) of the Act, Commerce must publish a notice of a court decision that is not ‘‘in harmony’’ with a Commerce determination and must suspend liquidation of entries pending a ‘‘conclusive’’ court decision. The CIT’s January 30, 2019, final judgment sustaining the Second Remand Results constitutes a final decision of the Court that is not in harmony with Commerce’s 7 See Shenzhen Xinboda Industrial Co. v. United States, CIT Slip Op. 17–166, Consol. Ct. No. 11– 00267 (December 15, 2017) (Second Remand Opinion). 8 See Second Remand Opinion at 4. 9 See Memorandum, ‘‘Final Results of Redetermination Pursuant to Remand: Fresh Garlic from the People’s Republic of China, Shenzhen Xinboda Industrial Co., Ltd. v. United States, U.S. Court of International Trade, Consol. Ct. No. 11– 00267, Slip Op. 17–166,’’ dated April 24, 2018 (Second Remand Results). 10 See Shenzhen Xinboda Industrial Co., Ltd. v. United States, CIT Slip Op. 19–16, Consol. Ct. No. 11–00267 (January 30, 2019) (Slip Op. 19–16). 11 See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990) (Timken). 12 See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades). E:\FR\FM\19FEN1.SGM 19FEN1 4770 Federal Register / Vol. 84, No. 33 / Tuesday, February 19, 2019 / Notices Final Results.13 This notice is published in fulfillment of the Timken publication requirements. Amended Final Results Because there is now a final court decision, we are amending the Final Results with respect to the dumping margins calculated for Xinboda. Based on the Second Remand Results, as affirmed by the CIT, the revised dumping margin for Xinboda, for the period of review of November 1, 2008, through October 31, 2009, is $0.00 per kilogram. Accordingly, Commerce will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. In the event the CIT’s ruling is not appealed or, if appealed, upheld on appeal, Commerce will instruct U.S. Customs and Border Protection to liquidate the unliquidated entries of subject merchandise based on the revised dumping margin above. Cash Deposit Requirements Commerce will not update the cash deposit requirements for Xinboda as it has later-determined rates from subsequent administrative reviews. Notification to Interested Parties This notice is issued and published in accordance with section 516A(e)(1), 751(a)(1), and 777(i)(1) of the Act. Dated: February 11, 2019. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. [FR Doc. 2019–02585 Filed 2–15–19; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration Environmental Technologies Trade Advisory Committee (ETTAC) Public Meeting International Trade Administration, DOC. ACTION: Notice of an Open Meeting of a Federal Advisory Committee. AGENCY: This notice sets forth the schedule and proposed agenda of a meeting of the Environmental Technologies Trade Advisory Committee (ETTAC). DATES: The teleconference is scheduled for Thursday, March 7, 2019, at 2:30 p.m. Eastern Daylight Time (EDT). The tkelley on DSKBCP9HB2PROD with NOTICES SUMMARY: 13 See Final Results. VerDate Sep<11>2014 17:46 Feb 15, 2019 Jkt 247001 deadline for members of the public to register or to submit written comments for dissemination prior to the teleconference is 5:00 p.m. EDT on Thursday, February 28, 2019. The deadline for members of the public to request auxiliary aids is 5:00 p.m. EDT on Tuesday, February 26, 2019. ADDRESSES: The meeting will take place via teleconference. For logistical reasons, all participants are required to register in advance by the date specified above. Please contact Ms. Amy Kreps at the contact information below to register and obtain call-in information. FOR FURTHER INFORMATION CONTACT: Ms. Amy Kreps, Office of Energy & Environmental Industries (OEEI), International Trade Administration, Room 28018, 1401 Constitution Avenue NW, Washington, DC 20230 (Phone: 202–482–3835; Fax: 202–482–5665; email: amy.kreps@trade.gov) SUPPLEMENTARY INFORMATION: The teleconference will take place on March 7, 2019, from 2:30 p.m. to 4:30 p.m. EDT. The general meeting is open to the public, and time will be permitted for public comment from 4:15–4:30 p.m. EDT. Members of the public seeking to attend the teleconference are required to register in advance. Those interested in attending must provide notification by Thursday, February 28, 2019, at 5:00 p.m. EDT, via the contact information provided above. This meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to OEEI at (202) 482– 3835 no less than one week prior to the teleconference. Requests received after this date will be accepted, but it may not be possible to accommodate them. Written comments concerning ETTAC affairs are welcome any time before or after the meeting. To be considered during the meeting, written comments must be received by Tuesday, February 26, 2019, at 5:00 p.m. EDT to ensure transmission to the members before the teleconference. Minutes will be available within 30 days of this meeting. Topic to be considered: The agenda for the March 7, 2019, meeting includes providing the newly re-chartered committee with briefings on Federal Advisory Committee Act (FACA) requirements and an overview of ETTAC operations. OEEI will make the final agenda available to the public one week prior to the meeting. Please email amy.kreps@trade.gov or contact 202– 482–3835 for a copy. Background: The ETTAC is mandated by Section 2313(c) of the Export Enhancement Act of 1988, as amended, 15 U.S.C. 4728(c), to advise the Environmental Trade Working Group of PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 the Trade Promotion Coordinating Committee, through the Secretary of Commerce, on the development and administration of programs to expand U.S. exports of environmental technologies, goods, services, and products. The ETTAC was most recently re-chartered until August 2020. Dated: February 13, 2019. Man Cho, Deputy Director, Office of Energy and Environmental Industries. [FR Doc. 2019–02674 Filed 2–15–19; 8:45 am] BILLING CODE 3510–DR–P DEPARTMENT OF COMMERCE International Trade Administration [A–580–874] Certain Steel Nails From the Republic of Korea: Final Results of Antidumping Duty Administrative Review; 2016– 2017 Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (Commerce) determines that Daejin Steel Co. (Daejin), Koram Inc. (Koram), and Korea Wire Co. Ltd. (Kowire) made sales of certain steel nails (steel nails) from the Republic of Korea (Korea) at less than normal value during the period of review (POR), July 1, 2016, through June 30, 2017. DATES: Applicable February 19, 2019. FOR FURTHER INFORMATION CONTACT: Maliha Khan (Daejin), Trisha Tran (Koram), or Robert Galantucci (Kowire), AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–0895, (202) 482–4852, or (202) 482–2923, respectively. SUPPLEMENTARY INFORMATION: AGENCY: Background On July 12, 2018, Commerce published the Preliminary Results of the 2016–2017 antidumping duty administrative review of steel nails from Korea.1 Commerce conducted verification of Koram and Kowire from July 23, 2018 through August 2, 2018. We invited interested parties to 1 See Certain Steel Nails from the Republic of Korea: Preliminary Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review; 2016– 2017, 83 FR 32265 (July 12, 2018) and accompanying Preliminary Decision Memorandum (Preliminary Results). E:\FR\FM\19FEN1.SGM 19FEN1

Agencies

[Federal Register Volume 84, Number 33 (Tuesday, February 19, 2019)]
[Notices]
[Pages 4769-4770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02585]



[[Page 4769]]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-831]


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

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On January 30, 2019, the United States Court of International 
Trade (the CIT) entered final judgment sustaining the Department of 
Commerce's (Commerce) second remand results pertaining to the fifteenth 
administrative review of the antidumping duty order on fresh garlic 
from the People's Republic of China (China) for Shenzhen Xinboda 
Industrial Co., Ltd. (Xinboda). Commerce is notifying the public that 
the final judgment in this case is not in harmony with the final 
results and partial rescission of the fifteenth antidumping duty 
administrative review, and that Commerce has amended the dumping margin 
found for Xinboda.

DATES: Applicable February 19, 2019.

FOR FURTHER INFORMATION CONTACT: Alexander Cipolla, AD/CVD Operations, 
Office VII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-4956.

SUPPLEMENTARY INFORMATION:

Background

    On June 27, 2011, Commerce published the Final Results pertaining 
to mandatory respondent Xinboda, along with other exporters.\1\ In the 
Final Results, Commerce selected India as the primary surrogate 
country.\2\ Pursuant to section 773(c)(1) of the Tariff Act of 1930, as 
amended (the Act), and applying our intermediate input methodology, 
Commerce used prices published for Azadpur in India to value whole raw 
garlic bulbs (bulbs). Commerce calculated a rate of $0.06 per kilogram 
for Xinboda, and the separate rate respondents.\3\
---------------------------------------------------------------------------

    \1\ See Fresh Garlic from the People's Republic of China: Final 
Results and Final Rescission, in Part, of the 2008-2009 Antidumping 
Duty Administrative Review, 76 FR 37321 (June 27, 2011) (Final 
Results) and accompanying Issues and Decision Memorandum (IDM).
    \2\ See IDM.
    \3\ See Final Results, 76 FR at 37326.
---------------------------------------------------------------------------

    On April 16, 2014, the CIT remanded for Commerce to: (1) Consider 
information indicating the Azadpur bulb prices might involve a higher 
level of processing that potentially double-counted processing of 
factors of production (FOPs) reported by Xinboda that Commerce included 
in normal value (NV); (2) consider information indicating that prices 
for grade A bulbs already reflect prices for grade S.A. bulbs; (3) 
explain why Tata Tea's financial statements are useable, in light of 
information Xinboda provided allegedly indicating that Tata Tea 
received countervailable subsidies, and why Garlico Industries 
Limited's (Garlico) statements are not useable; (4) explain further the 
intermediate labor methodology or revise the surrogate value (SV) for 
labor; and (5) explain why zeroing is permissible in non-market economy 
(NME) reviews.\4\
---------------------------------------------------------------------------

    \4\ See Shenzhen Xinboda Industrial Co., Ltd. v. United States, 
Slip Op. 14-45, Court No. 11-00267 (CIT 2014) (First Remand 
Opinion).
---------------------------------------------------------------------------

    On August 4, 2014, Commerce filed the First Remand Results, 
revising Xinboda's rate from $0.06 per kilogram to $0.02 per 
kilogram.\5\ In accordance with the First Remand Opinion, Commerce 
adjusted its NV calculation by removing the costs of self-produced and 
consumed green leaf from the surrogate manufacturing overhead ratio 
from Tata Tea. In addition, we revised our SV for labor, in compliance 
with Commerce's current surrogate labor rate methodology. We revised 
our margin calculation to exclude the inland freight expense of 
transportation expenses for raw garlic bulbs from Indian growers to the 
Azadpur market.\6\ Commerce continued to rely on grade A and grade S.A. 
bulb data from the Azadpur market data, explaining that those prices 
were ``more similar'' to the input being valued and that the Researcher 
Declaration submitted by Xinboda was unreliable and did not undermine 
the Azadpur prices to the point of being unusable. Commerce also 
continued to rely on Tata Tea's financial statements in order to value 
the surrogate financial ratios and gave a more fulsome explanation of 
Commerce's practice in interpreting the ``reason to believe or 
suspect'' standard regarding whether financial statements contain 
evidence of countervailable subsidies. Finally, we continued to utilize 
our zeroing methodology.
---------------------------------------------------------------------------

    \5\ See ``Final Results of Redetermination Pursuant to Remand, 
Shenzhen Xinboda Industrial Co., Ltd. v. United States, Court of 
International Trade No. 11-00267, Slip Op. 14-45,'' dated August 14, 
2014 (First Remand Results).
    \6\ Id. at 6.
---------------------------------------------------------------------------

    On December 15, 2017, the CIT sustained Commerce's application of 
its zeroing methodology, and the SV for labor in the First Remand 
Results.\7\ However, the Court again remanded the First Remand Results 
for Commerce to reconsider the SV for whole raw garlic bulbs and the 
selection of surrogate financial statements.\8\ Per the Court's 
instructions, Commerce recalculated Xinboda's rate using only the 
contemporaneous grade A bulb prices from the Azadpur data. In addition, 
as directed by the Court, Commerce adjusted the surrogate bulb value in 
order to reflect the expenses associated with intermediaries and 
further processing of the garlic bulb. Moreover, Commerce continued to 
apply financial ratios derived from the 2010 unconsolidated financial 
statements of Tata Tea, after further explaining our practice regarding 
the ``reason to believe or suspect'' standard for countervailable 
subsidies in financial statements.\9\ The calculations performed in the 
Second Remand Results resulted in a weighted-average dumping margin of 
$0.00 per kilogram for Xinboda.
---------------------------------------------------------------------------

    \7\ See Shenzhen Xinboda Industrial Co. v. United States, CIT 
Slip Op. 17-166, Consol. Ct. No. 11-00267 (December 15, 2017) 
(Second Remand Opinion).
    \8\ See Second Remand Opinion at 4.
    \9\ See Memorandum, ``Final Results of Redetermination Pursuant 
to Remand: Fresh Garlic from the People's Republic of China, 
Shenzhen Xinboda Industrial Co., Ltd. v. United States, U.S. Court 
of International Trade, Consol. Ct. No. 11-00267, Slip Op. 17-166,'' 
dated April 24, 2018 (Second Remand Results).
---------------------------------------------------------------------------

    On January 30, 2019, the CIT sustained Commerce's Second Remand 
Results with respect to the fifteenth administrative review of the AD 
order on fresh garlic from China.\10\
---------------------------------------------------------------------------

    \10\ See Shenzhen Xinboda Industrial Co., Ltd. v. United States, 
CIT Slip Op. 19-16, Consol. Ct. No. 11-00267 (January 30, 2019) 
(Slip Op. 19-16).
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Timken Notice

    In its decision in Timken,\11\ as clarified by Diamond 
Sawblades,\12\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(e) of the Act, Commerce must publish a notice 
of a court decision that is not ``in harmony'' with a Commerce 
determination and must suspend liquidation of entries pending a 
``conclusive'' court decision. The CIT's January 30, 2019, final 
judgment sustaining the Second Remand Results constitutes a final 
decision of the Court that is not in harmony with Commerce's

[[Page 4770]]

Final Results.\13\ This notice is published in fulfillment of the 
Timken publication requirements.
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    \11\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \12\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \13\ See Final Results.
---------------------------------------------------------------------------

Amended Final Results

    Because there is now a final court decision, we are amending the 
Final Results with respect to the dumping margins calculated for 
Xinboda. Based on the Second Remand Results, as affirmed by the CIT, 
the revised dumping margin for Xinboda, for the period of review of 
November 1, 2008, through October 31, 2009, is $0.00 per kilogram.
    Accordingly, Commerce will continue the suspension of liquidation 
of the subject merchandise pending the expiration of the period of 
appeal or, if appealed, pending a final and conclusive court decision. 
In the event the CIT's ruling is not appealed or, if appealed, upheld 
on appeal, Commerce will instruct U.S. Customs and Border Protection to 
liquidate the unliquidated entries of subject merchandise based on the 
revised dumping margin above.

Cash Deposit Requirements

    Commerce will not update the cash deposit requirements for Xinboda 
as it has later-determined rates from subsequent administrative 
reviews.

Notification to Interested Parties

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

    Dated: February 11, 2019.
Christian Marsh,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-02585 Filed 2-15-19; 8:45 am]
BILLING CODE 3510-DS-P