[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Notices]
[Pages 36255-36256]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14735]
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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 of Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On June 5, 2012,\1\ the United States Court of International
Trade (``CIT'') or (``Court'') sustained the Department of Commerce's
(the ``Department'') results of redetermination \2\ pursuant to the
CIT's remand order in Jinan Yipin Corporation, Ltd. and Shandong Heze
International Trade and Developing Company, v. United States, 774 F.
Supp. 2d 1238 (CIT April 12, 2011) (``Jinan Yipin III 2011'').
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\1\ Jinan Yipin Corporation, Ltd. and Shandong Heze
International Trade and Developing Company, v. United States, Slip
Op. 12-68 (CIT June 5, 2012) (judgment).
\2\ Final Results of Third Redetermination Pursuant to Court
Remand filed with the Court September 7, 2011 (signed September 2,
2011) (``Jinan Yipin III Redetermination'') available at: http://www.ia.ita.doc.gov/remands/index.html.
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Consistent with the decision of the United States Court of Appeals
for the Federal Circuit (``CAFC'') in Timken Co. v. United States, 893
F.2d 337 (Fed. Cir. 1990) (``Timken''), as clarified by Diamond
Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir.
2010) (``Diamond Sawblades''), the Department is notifying the public
that the final judgment in this case is not in harmony with Garlic AR8
Final Results \3\ and is amending the final 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, 2001 through October 31, 2002, with
respect to the margins assigned to Jinan Yipin Corporation Ltd.
(``Jinan Yipin'') and Shandong Heze International Trade And Developing
Company (``Shandong Heze'').
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\3\ See Fresh Garlic From the People's Republic of China: Final
Results of Antidumping Duty Administrative Review and New Shipper
Reviews, 69 FR 33626 (June 16,2004) (``Garlic AR8 Final Results''),
and accompanying Issues and Decision Memorandum (``Issues and
Decision Memorandum'').
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DATES: Effective Date: (June 15, 2012).
FOR FURTHER INFORMATION CONTACT: Lindsey Novom, Office 8, Import
Administration, International Trade Administration, U.S. Department of
Commerce, 14th Street and Constitution Avenue NW., Washington, DC
20230; telephone: (202) 482-5256.
SUPPLEMENTARY INFORMATION:
Background
Subsequent to completion of the eighth administrative review of the
antidumping duty order on fresh garlic from the PRC,\4\ two
respondents, Jinan Yipin and Shandong Heze, challenged certain aspects
of the Department's final results of review at the CIT. On November 15,
2007, the CIT affirmed in part the Garlic AR8 Final Results and
remanded other aspects of the decision to the Department.\5\ On March
14, 2008, the Department issued its remand redetermination,\6\ wherein
we: (1) Treated sales by Jinan Yipin to Houston Seafood negotiated
after March 29, 2002 as unaffiliated party transactions; (2)
recalculated Jinan Yipin's weighted-average dumping margin by including
all of its reported POR sales information (rather than applying the
376.67 percent rate to certain transactions); (3) recalculated Jinan
Yipin's indirect selling expenses incurred in the United States; (4)
continued to rely on data from the National Horticultural Research and
Development Foundation (``NHRDF'') to value Jinan Yipin and
[[Page 36256]]
Shangdong Heze's garlic seed used in the production of fresh garlic;
(5) continued to value water with municipal water rates to account for
the respondents' water consumption used in the production of fresh
garlic; and (6) continued to value Jinan Yipin's packing cartons with
Indian Import Statistics. As a result, we calculated a revised
weighted-average margin for Jinan Yipin, however Shandong Heze's
antidumping duty margin remained consistent with the margin issued in
Garlic AR8 Final Results.
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\4\ See Garlic AR8 Final Results.
\5\ See Jinan Yipin Corporation, Ltd. and Shandong Heze
International Trade and Developing Company, v. United States 526 F.
Supp. 2d 1347 (CIT Nov. 15, 2007) (``Jinan Yipin I 2007'').
\6\ See Jinan Yipin Corporation, Ltd. and Shandong Heze
International Trade and Developing Company v. United States, Consol,
Court No. 04-00240, Slip Op. 07-168 (November 15, 2007) Final
Results of Redetermination Pursuant to Court Remand, dated March 14,
2008 ('' Jinan Yipin I Redetermination'') available at: http://www.ia.ita.doc.gov/remands/index.html.
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On July 2, 2009, the CIT affirmed the Jinan Yipin I
Redetermination, with regard to issues 1, 2, and 3, discussed above.
However, the Court remanded the redetermination with regard to issues
4, 5, and 6, discussed above. Additionally, the Court directed the
Department to examine an alleged ministerial error in the calculation
of the surrogate financial ratios that Jinan Yipin raised for the first
time in this proceeding in its comments on the draft redetermination
pursuant to Jinan Yipin I 2007. The Department had declined to address
this ministerial error allegation in the Jinan Yipin I Redetermination
on the basis that the alleged ministerial error was not raised during
the administrative proceeding pursuant to our regulations \7\ or in
Jinan Yipin's complaint in this litigation, and the issue was not
remanded by the Court, and, therefore, was not before the Department on
remand.\8\
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\7\ 19 CFR 351.224.
\8\ See Jinan Yipin I Redetermination at p. 36.
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On February 25, 2010, the Department issued its second remand
redetermination,\9\ wherein we: (1) Again continued to rely on data
from the NHRDF to value Jinan Yipin and Shangdong Heze's garlic seed
used in the production of fresh garlic; (2) re-evaluated both
respondent's water consumption and determined to value the irrigation
pumping costs (i.e., the energy used to pump the water) rather than
valuing the water consumed in production, because both respondents
incur only the irrigation cost associated with pumping the water from
wells; (3) continued to value Jinan Yipin's packing cartons with Indian
Import Statistics, however, in response to the Court's directive we
provided further explanation as to why the Department had determined to
exclude imports from Indonesia, South Korea, and Thailand in deriving
this surrogate value; and (4) determined that we had made a ministerial
error in the calculation of the surrogate financial ratios, as alleged
by Jinan Yipin, and corrected this ministerial error as directed by the
Court. As a result, we calculated revised weighted-average dumping
margins of 6.58 percent for Jinan Yipin and 40.66 percent for Shandong
Heze.
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\9\ See Jinan Yipin Corporation, Ltd. and Shandong Heze
International Trade and Developing Company v. United States, Consol,
Court No. 04-00240, Slip Op. 09-70 (CIT July 2, 2009) Final Results
of Redetermination Pursuant to Court Remand, dated February 25, 2010
('' Jinan Yipin II Redetermination'') available at: http://www.ia.ita.doc.gov/remands/index.html.
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In the Jinan Yipin II Redetermination, the Department declined to
address an argument put forth by Jinan Yipin concerning the calculation
of its surrogate labor wage rate, on the basis that the company raised
the issue for the first time in its comments on the draft version of
that redetermination.\10\ However, during the pendency of this
litigation, the CAFC issued its decision in Dorbest Ltd. v. United
States, 604 F.3d 1363, 1372-73 (Fed. Cir. 20 I0) (``Dorbest''),
invalidating the Department's regulation, 19 CFR 35 IA08(c)(3), which
previously governed our calculation of a respondent's surrogate labor
wage rate. On June 30, 2010, with the Department's consent, Jinan Yipin
moved to amend its complaint to add a new count, ``Count 8,''
challenging our prior calculation of the company's surrogate labor wage
rate under 19 CFR 351A08(c)(3).
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\10\ See Jinan Yipin II Redetermination at Comment 4.
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The CIT granted Jinan Yipin leave to amend its complaint to add
this new count on July 20, 2010. On April 12, 2011, the CIT issued its
opinion in Jinan Yipin III and granted the Department's request for a
voluntary remand for the purpose of recalculating Jinan Yipin's
surrogate labor wage rate.\11\ In that opinion, the CIT upheld the
Jinan Yipin II Redetermination with regard to all other issues.
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\11\ See Jinan Yipin III at 18.
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On September 7, 2012 the Department filed its third remand
redetermination with the Court, wherein we recalculated the surrogate
wage rate for Jinan Yipin.\12\ As a result, we calculated a revised
weighted-average dumping margins of 1.77 percent for Jinan Yipin.
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\12\ See Jinan Yipin III Redetermination.
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Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the CAFC has held that, pursuant to section 516A(e) of 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 June 5, 2012, judgment sustaining the Jinan Yipin III
Redetermination constitutes a final decision of that court that is not
in harmony with the Garlic AR8 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 rates will remain the respective company-specific rates
established for the subsequent and most recent period during which the
respondents were reviewed.
Amended Final Results
Because there is now a final court decision with respect to these
Plaintiffs, the revised dumping margins are as follows:
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Weighted-
average
Exporter margin
(percent)
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Jinan Yipin Corporation, Ltd.\13\.......................... 1.77
Shandong Heze International Trade and Developing Company 40.66
\14\......................................................
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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 the two companies named above
based on the revised assessment rates calculated by the Department.
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\13\ See Jinan Yipin III Redetermination.
\14\ See Jinan Yipin II Redetermination.
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This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: June 11, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-14735 Filed 6-15-12; 8:45 am]
BILLING CODE 3510-DS-P