2011-5918. Fresh Garlic from the People's Republic of China: Court Decision Not in Harmony With Final Results and Amended Final Results of Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On March 1, 2011, the United States Court of International Trade (“CIT”) sustained in an unpublished judgment the Department of Commerce's (“the Department”) final results of redetermination as applied to respondent Shenzhen Greening Trading Co., Ltd. (“Greening”) pursuant to the CIT's order granting the Department's voluntary remand request in Shandong Chenhe International Trading Co., Ltd. and Shenzhen Greening Trading Co., Ltd. v. United States, Court No. 09-00246 (Ct. Int'l Trade April 22, 2010). See Final Results of Redetermination Pursuant to Voluntary Remand, Court No. 09-00246, dated July 30, 2010, available at http://ia.ita.doc.gov/​remands (“Remand Results”); Shandong Chenhe International Trading Co., Ltd. and Shenzhen Greening Trading Co., Ltd. v. United States, Court No. 09-00246 (Ct. Int'l Trade March 1, 2011) (“Judgment”). 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 the Department's final results 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, 2006, through October 31, 2007 with respect to Greening. See Fresh Garlic From the People's Republic of China: Final Results and Partial Rescission of the 13th Antidumping Duty Administrative Review and New Shipper Reviews, 74 FR 29174 (June 19, 2009) (“Final Results”), and accompanying Issues and Decision Memorandum at Comment 11.

DATES:

Effective Date: March 11, 2011.

FOR FURTHER INFORMATION CONTACT:

Scott Lindsay or David Lindgren, 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 [phone] or [phone].

SUPPLEMENTARY INFORMATION:

Background

On June 19, 2009, the Department issued its Final Results, where it determined that neither Shandong Chenhe International Trading Co., Ltd. (“Chenhe”) nor Greening submitted a separate rate application or certification, and neither company informed the Department that they had no shipments of subject merchandise during the POR within the deadlines provided in the separate rate applications and certifications. See Final Results and accompanying Issues and Decision Memorandum at Comment 11. Accordingly, for the six months of the POR not covered by the concurrently conducted new shipper review (“NSR”), we determined that Chenhe and Greening had not established that they were each entitled to a separate rate, and without timely filed no-shipment certifications, Chenhe and Greening should be deemed to be part of the PRC-wide entity. Id. See also Fresh Garlic from the People's Republic of China: Initiation of Antidumping Duty New Shipper Reviews, 72 FR 38057 (July 12, 2007).

Chenhe and Greening timely challenged the Department's determination not to rescind the administrative review with respect to both companies to the CIT. On April 22, 2009, the CIT granted the United States' motion for voluntary remand to reconsider whether the separate rate application or other relevant judicial or administrative precedent support a finding that Chenhe and Greening were on notice that they were required to submit, within a set deadline, a certification that they had no shipments during the POR in order for the Department to consider rescinding the administrative review as to both companies.

On July 30, 2010, the Department issued its final results of redetermination. See Remand Results. In the redetermination, the Department reconsidered the specific circumstances surrounding Chenhe's and Greening's no-shipment certifications and rescinded the administrative review for both Chenhe and Greening, pending affirmance by the CIT. Id. On February 16, 2011, Chenhe moved to dismiss, with prejudice, its complaint and the CIT granted the motion on February 18, 2011. Subsequently, on March 1, 2011, the CIT sustained the Department's remand redetermination with respect to Greening. See Judgment.

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 Tariff Act of 1930, as amended (“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 March 1, 2011 Judgment sustaining the Department's Remand Results with respect to Greening 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. The cash deposit rate will remain the company-specific rate established for the subsequent and most recent period during which Greening was reviewed. See 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). However, because Greening had no shipments during the POR not covered by the NSR, there are no entries to suspend during the administrative review POR and, therefore, the Department does not find it necessary to instruct United States Customs and Border Protection to continue to suspend the liquidation of entries pending a “conclusive” court decision.

Amended Final Results

Because there is now a final court decision with respect to Greening, the Department amends its Final Results, and is rescinding its review of Greening for the administrative review POR. See Judgment; Remand Results.

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

Dated: March 9, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.