Honey From the People's Republic of China: Preliminary Rescission of the Administrative Review, 79-82 [2011-33669]
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Federal Register / Vol. 77, No. 1 / Tuesday, January 3, 2012 / Notices
however, incentive payments will not
be considered part of the match
requirement. Incentives include sign-up
bonuses, practice incentive payments,
or similar activities not funded through
WRP.
(f) Total budget for the project
including all partner resources which
will be leveraged for the project and the
amount of WREP financial assistance
being requested for project broken out
by fiscal year with totals. Include a
description of the amount of funds
needed annually for easement
acquisition and wetland restoration and
enhancement activities.
(g) A description of non-Federal
resources that will be available for
implementation of the proposal.
Proposals which include additional
non-Federal resources will be given
higher consideration in the selection
process. The partner needs to state
clearly how they intend to leverage
Federal funds along with partner
resources. Landowner contributions in
the implementation of agreed-to
wetland restoration and enhancement
practices may not be considered any
part of a match from the potential
partner for purposes of WREP. Partners
will also be required to submit a plan
for monitoring, evaluating, and
reporting progress made toward
achieving the objectives of the
agreement.
(h) An estimate of the percentage of
potential landowners, or estimate of the
percentage of acres likely to be enrolled
within the project area, compared to the
total number of potential landowners or
acres located in the project area. A
statement on how the partner will
encourage participation to guarantee
success of the project. It is not necessary
for a target area to involve multiple
landowners to be selected. Projects will
be evaluated based on the ecological
merits of the proposal and contributions
by the partners.
(i) A statement describing how the
partner will provide outreach,
especially to encourage participation by
Indian Tribes, beginning farmers or
ranchers, socially disadvantaged farmers
or ranchers, and limited resource
farmers or ranchers.
(j) A description of the wetland
protection, restoration, and
enhancement activities to be
implemented during the project
timeframe, and the general sequence of
implementation of the project. Activities
may include those efforts undertaken by
the partner and those that the partner
requests NRCS to address through
financial support.
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National Ranking Considerations
The appropriate State Conservationist
will evaluate proposals and forward
recommendations, with justification, to
the NRCS Chief for review and
selection. The Chief will give a higher
priority to proposals that:
(a) Have a high potential to achieve
wetland restoration;
(b) Have a high potential to
significantly improve water quality;
(c) Have a high potential to
significantly improve wildlife habitat;
(d) Have a high potential to remove
frequently flooded lands from
agricultural production returning lands
to more natural conditions;
(e) Significantly leverage non-Federal
financial and technical resources and
coordinate with other local, State, tribal,
or Federal efforts;
(f) Demonstrate the partner’s history
of working cooperatively with
landowners on conservation easements;
(g) Provide innovation in wetland
protection, restoration, enhancement,
and management methods and outcomebased performance measures and
methods;
(h) Provide evidence that wetland
restoration and enhancement activities
will be completed within 2 years of
easement closing;
(i) Provide for monitoring and
evaluation of the effectiveness of the
restoration activities on water quality;
(j) Provide for matching financial or
technical assistance funds to assist
landowners with the implementation of
the Wetlands Reserve Plan of
Operations and associated contracts;
(k) Facilitate the submission of
landowner applications;
(l) Provide for outreach to, and
participation of, Indian Tribes,
beginning farmers or ranchers, socially
disadvantaged farmers or ranchers, and
limited resource farmers or ranchers
within the area covered by the
agreement; and
(m) Integrate a MRBI–WREP proposal
with a MRBI–CCPI proposed or
approved project.
Partnership Agreements
Upon proposal selection, NRCS will
enter an agreement with a partner as the
mechanism for partner participation in
WREP. At a minimum, the agreement
will address:
(a) The role of the partner;
(b) The role of NRCS;
(c) The format and frequency of
reports that is required as a condition of
the agreement;
(d) The Plan of Work and budget to
identify other funding sources (if
applicable) for financial or technical
assistance;
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(e) The specified project schedule and
timeframe;
(f) Whether the agreement will serve
as an obligating document or whether
funds will be obligated under a separate
agreement with the partner or with a
third party; and
(g) Other requirements deemed
necessary by NRCS to achieve purposes
of the WRP.
Landowner Application
Landowners must meet the eligibility
requirements of WRP, as published in 7
CFR part 1467. Landowners interested
in participating may apply for
designated WREP funds at their local
service center after WREP proposals are
selected. In FY 2012, NRCS will make
WREP funds available to eligible
landowners to enroll land under a
permanent easement, a 30-year
easement, a 30-year contract on acreage
owned by Indian Tribes, or through a
Restoration Agreement.
NRCS and the partner may assist
landowners in determining whether the
application is appropriate for WREP
depending on the wetland protection,
restoration, and enhancement activities
that the applicant seeks to install or
perform.
Signed the 22nd day of December, 2011, in
Washington, DC.
Dave White,
Vice President, Commodity Credit
Corporation and Chief, Natural Resources
Conservation Service.
[FR Doc. 2011–33692 Filed 12–30–11; 8:45 am]
BILLING CODE 3410–16–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–863]
Honey From the People’s Republic of
China: Preliminary Rescission of the
Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting the
administrative review of the
antidumping duty order on honey from
the People’s Republic of China (‘‘PRC’’)
for the period of review (‘‘POR’’)
December 1, 2009, to November 30,
2010. As discussed below, we have
preliminarily determined to rescind this
administrative review because we have
found the sales made by Dongtai Peak
Honey Industry Co., Ltd. (‘‘Dongtai
Peak’’) that entered during the POR
were not bona fide.
AGENCY:
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DATES:
Federal Register / Vol. 77, No. 1 / Tuesday, January 3, 2012 / Notices
Effective Date: January 3, 2012.
FOR FURTHER INFORMATION CONTACT:
Catherine Bertrand, telephone: (202)
482–3207, or Josh Startup, telephone:
(202) 482–5260; AD/CVD Operations,
Office 9, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue NW.,
Washington, DC 20230.
Background
The Department received timely
requests from Petitioners 1 and Dongtai
Peak, a Chinese producer and exporter
of honey, in accordance with 19 CFR
351.213(b), during the anniversary
month of December, to conduct a review
of honey exporters from the PRC. On
January 28, 2011, the Department
initiated this review with respect to all
60 requested companies.2
On February 7, 2011, Mongolia Altin
Bee-Keeping Co., Ltd., Suzhou Shanding
Honey Product Co., Ltd., and Wuhu
Fenglian Co., Ltd. submitted a letter
certifying they had no shipments during
the POR and requesting the Department
rescind this review with respect to each
of them.3 On February 24, 2011,
Petitioners withdrew the request for
review for all companies requested
except for Dongtai Peak. On March 9,
2011, the Department published a notice
of partial rescission in the Federal
Register for all of the companies for
which the request for review was
withdrawn.4 Dongtai Peak remains the
only company subject to this review. On
August 4, 2011, the Department
published a notice extending the time
period for issuing the preliminary
results by 120 days to December 31,
2011.5
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Respondent Selection
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
exporter or producer of the subject
merchandise.6 However, section
1 The American Honey Producers Association and
Sioux Honey Association, collectively
‘‘Petitioners.’’
2 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 76 FR
5137 (January 28, 2011) (‘‘Initiation Notice’’).
3 Companies have the opportunity to submit
statements certifying that they did not ship the
subject merchandise to the United States during the
POR.
4 See Honey from the People’s Republic of China:
Partial Rescission of Antidumping Duty
Administrative Review, 76 FR 12940 (March 9,
2011).
5 See Ninth Administrative Review of Honey From
the People’s Republic of China: Extension of Time
Limit for the Preliminary Results, 76 FR 47238
(August 4, 2011).
6 See also 19 CFR 351.204(c) regarding
respondent selection, in general.
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777A(c)(2) of the Act gives the
Department discretion to limit its
examination to a reasonable number of
exporters or producers, if it is not
practicable to examine all exporters or
producers for which the review is
initiated.
On January 21, 2011, the Department
released CBP data for entries of the
subject merchandise during the POR
under administrative protective order
(‘‘APO’’) to all interested parties having
access to materials released under APO
inviting comments regarding the CBP
data and respondent selection. The
Department did not receive any
comments on the CBP data.
On February 16, 2011, the Department
selected Dongtai Peak as the only
mandatory respondent.7 As noted
above, Mongolia Altin Bee-Keeping Co.,
Ltd., Suzhou Shanding Honey Product
Co., Ltd., and Wuhu Fenglian Co., Ltd.
submitted a letter certifying they had no
shipments during the POR and are no
longer subject to this review. As
discussed below, Petitioners have
alleged that Dongtai Peak’s sales were
non-bona fide transactions,8 and
therefore did not provide a reasonable
or reliable basis for the Department to
calculate a dumping margin.
Separate Rates
In the Initiation Notice, the
Department notified parties of the
application process by which exporters
and producers may obtain separate rate
status in NME reviews.9 Other than
Dongtai Peak’s Section A portion of the
questionnaire response filed on March
16, 2011, no companies submitted a
separate rate application or certification.
Questionnaires
On February 25, 2011, the Department
issued its initial non-market economy
(‘‘NME’’) antidumping duty
questionnaire to the mandatory
respondent Dongtai Peak. Dongtai Peak
timely responded to the Department’s
initial and subsequent supplemental
questionnaires between February and
December 2011.10
7 See Memorandum to James Doyle, Director, AD/
CVD Operations, Office 9, from Josh Startup,
International Trade Analyst, Office 9; Selection of
Respondents for the Antidumping Review Honey
from the People’s Republic of China (‘‘PRC’’), dated
February 16, 2011.
8 See, e.g., Petitioners’ submissions received on
August 1, 2011, October 14, 2011, and November
21, 2011.
9 See Initiation Notice.
10 While the Department continued to receive
submissions from both Petitioners and Dongtai Peak
through December, we were unable to take
submissions submitted on or after December 13,
2011, into consideration for these preliminary
results due to the close proximity to statutory
deadlines. Submissions received on or after
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Period of Review
The POR is December 1, 2009,
through November 30, 2010.
Scope of the Order
The products covered by the order are
natural honey, artificial honey
containing more than 50 percent natural
honey by weight, preparations of natural
honey containing more than 50 percent
natural honey by weight and flavored
honey. The subject merchandise
includes all grades and colors of honey
whether in liquid, creamed, comb, cut
comb, or chunk form, and whether
packaged for retail or in bulk form.
The merchandise subject to the order
is currently classifiable under
subheadings 0409.00.00, 1702.90.90 and
2106.90.99 of the Harmonized Tariff
Schedule of the United States
(‘‘HTSUS’’). Although the HTSUS
subheadings are provided for
convenience and customs purposes, the
Department’s written description of the
merchandise under the order is
dispositive.
Bona Fide Analysis
In this administrative review,
Petitioners alleged that the sales of
Dongtai Peak were non-bona fide.
Therefore, because there was an
allegation regarding the bona fide nature
of these sales the Department undertook
that analysis in this review. Where all
of the sales in a review are deemed as
non-bona fide commercial transactions,
this must end the review.11 To
determine whether a sale in a review is
unrepresentative or extremely
distortive, and therefore excludable as
non-bona fide, the Department employs
a totality of the circumstances test.12 In
examining the totality of the
circumstances, the Department looks to
whether or not the transaction is
‘‘commercially unreasonable’’ or
‘‘atypical.’’ 13 Atypical or non-typical in
this context means unrepresentative of a
normal business practice.14
December 13, 2011, will be taken into consideration
for the final results.
11 See Tianjin Tiancheng Pharmaceutical Co.,
Ltd. v. United States, 366 F. Supp. 2d 1246, 1249
(CIT 2005) (‘‘TTPC’’).
12 See Glycine From The People’s Republic of
China: Rescission of Antidumping Duty New
Shipper Review of Hebei New Donghua Amino Acid
Co., Ltd., 69 FR 47405, 47406 (August 5, 2004).
13 See Freshwater Crawfish Tail Meat from the
People’s Republic of China: Notice of Final Results
of Antidumping Duty New Shipper Review, and
Final Rescission of Antidumping Duty New Shipper
Review, 68 FR 1439, 1440 (January 10, 2003).
14 See Hebei New Donghua Amino Acid Co., Ltd.
v. United States, 374 F. Supp. 2d 1333, 1339 (CIT
2005) (‘‘New Donghua’’), citing Windmill Int’l Pte.,
Ltd. v. United States, 193 F. Supp. 2d 1303, 1313
(CIT 2002) (‘‘Windmill’’); see also TTPC, 366 F.
Supp. 2d at 1249–50.
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The Department examines the bona
fide nature of a sale on a case-by-case
basis, and the analysis may vary with
the facts surrounding each sale.15 In
TTPC, the court affirmed the
Department’s practice of considering
that ‘‘any factor which indicates that the
sale under consideration is not likely to
be typical of those which the producer
will make in the future is relevant,’’ 16
and found that ‘‘the weight given to
each factor investigated will depend on
the circumstances surrounding the
sale.’’ 17 The Court stated that the
Department’s practice makes clear that
the Department is highly likely to
examine objective, verifiable factors to
ensure that a sale is not being made to
circumvent an antidumping duty
order.18 Thus, a respondent is on notice
that it is unlikely to establish the bona
fides of a sale merely by claiming to
have sold in a manner representative of
its future commercial practice.19
In evaluating whether sales subject to
review are commercially reasonable,
and therefore bona fide, the Department
normally considers a number of factors
such as: (1) The timing of the sale; (2)
the price and quantity; (3) the expenses
arising from the transaction; (4) whether
the goods were resold at a profit; and (5)
whether the transaction was made on an
arms-length basis; 20 (6) as well as the
business practices of the importer and
U.S. customers.21 In this case and as
further discussed below, the Department
determines that the business practices of
the importer and U.S. customer are so
atypical and unusual that no other
factors need to be analyzed.
When performing its bona fide
analysis, the Department reviews the
circumstances surrounding a
respondent’s sales of subject
merchandise that entered the United
States during the POR.22 Concurrent
with this notice, we are issuing a
business proprietary memorandum 23
15 See New Donghua, 374 F. Supp. 2d at 1340,
n.5, citing TTPC, 366 F. Supp. 2d at 1260, and
Certain Preserved Mushrooms From the People’s
Republic of China: Final Results and Partial
Rescission of the New Shipper Review and Final
Results and Partial Rescission of the Third
Antidumping Duty Administrative Review, 68 FR
41304 (July 11, 2003), and accompanying Issues and
Decision Memorandum at Comment 2.
16 See TTPC, 366 F. Supp. 2d at 1250.
17 See id. at 1263.
18 See New Donghua, 374 F. Supp. 2d at 1339.
19 See id.
20 See TTPC, 366 F. Supp. 2d at 1250.
21 See New Donghua, 374 F. Supp. 2d at 1343–
44.
22 See Dongtai Peak’s Sections C and D
Questionnaire Response, submitted April 4, 2011, at
C–1.
23 See Memorandum to the File from Josh Startup,
International Trade Analyst, through Catherine
Bertrand, Program Manager, to James C. Doyle,
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detailing our analysis of the bona fides
of Dongtai Peak’s U.S. entries and our
preliminary decision to rescind the
administrative review of Dongtai Peak
based on the totality of the
circumstances of its sales, because much
of the information relied upon by the
Department to analyze the bona fides
issue is business proprietary. The
Department determined that the sales
made by Dongtai Peak were not bona
fide for the following reasons: (1) The
ultimate disposition of the honey is
unknown, and no documentation was
produced to demonstrate its status; (2)
the licensing inconsistencies of the U.S.
importer and its resale customer; and (3)
the unusual channels of trade which the
honey entered following its importation.
Therefore, we preliminarily find that
Dongtai Peak’s sales that entered the
United States during the POR are not
bona fide commercial transactions, and
that Dongtai Peak’s sales entering the
United States during the POR do not
provide a reasonable or reliable basis for
calculating a dumping margin.
Preliminary Determination To Rescind
As discussed above,24 we
preliminarily determine that Dongtai
Peak’s U.S. sales were not bona fide
commercial transactions; accordingly,
Dongtai Peak has not met the
requirements to qualify for an
administrative review during the POR.
Therefore, the Department is
preliminarily rescinding this review
with respect to Dongtai Peak because
Dongtai Peak has no reviewable entries
during the POR.25
Public Hearing
Interested parties may submit case
briefs and/or written comments no later
than 30 days after the date of
publication of these preliminary results
of review.26 Rebuttal briefs and rebuttals
to written comments, limited to issues
raised in such briefs or comments may
be filed no later than five days after the
deadline for filing case briefs.27 Parties
who submit case briefs or rebuttal briefs
in this proceeding are requested to
submit with each argument: (1) A
statement of the issue; (2) a brief
Director, regarding ‘‘Antidumping Duty
Administrative Review of Honey from the People’s
Republic of China: Bona Fide Analysis of Sales
Under Review for Dongtai Peak Honey Industry Co.,
Ltd.,’’ dated concurrently with this notice (‘‘Dongtai
Bona Fides Memo’’).
24 See also Dongtai Bona Fides Memo.
25 See TTPC, 366 F. Supp. 2d at 1249
(‘‘{P}ursuant to the rulings of the Court, Commerce
may exclude sales from the export price calculation
where it finds that they are not bona fide’’).
26 See 19 CFR 351.309(c)(ii).
27 See 19 CFR 351.309(d).
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summary of the argument; and (3) a
table of authorities.28
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results of
this administrative review, interested
parties may submit publicly available
information to value factors of
production (‘‘FOPs’’) within 20 days
after the date of publication of these
preliminary results. Interested parties
must provide the Department with
supporting documentation for the
publicly available information to value
each FOP. Any interested party may
request a hearing within 30 days of
publication of this notice.29 Hearing
requests should contain the following
information: (1) The party’s name,
address, and telephone number; (2) the
number of participants; and (3) a list of
the issues to be discussed. Oral
presentations will be limited to issues
raised in the briefs.30 The Department
will issue the final results of this
administrative review, including the
results of its analysis of the issues raised
in any written briefs, not later than 120
days after the date of publication of this
notice, pursuant to section 751(a)(3)(A)
of the Act.
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries covered by this
review. For the companies receiving a
separate rate that were not selected for
individual review, we will assign an
assessment rate based on rates
calculated in previous reviews. Due to
the fact that this review of Dongtai Peak
is preliminarily rescinded, if this
preliminary rescission is adopted in our
final results of review, Dongtai Peak’s
antidumping duties shall be assessed at
rates equal to the cash deposit of
estimated antidumping duties required
at the time of entry, or withdrawal from
warehouse, for consumption, in
accordance with 19 CFR 351.212(c)(2).
The Department intends to issue
appropriate assessment instructions
directly to CBP 15 days after publication
of the final results of this review.
Notification to Importers
This notice also serves as a
preliminary 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
28 See
19 CFR 351.309(c) and (d).
19 CFR 351.310(c).
30 See 19 CFR 351.310(d).
29 See
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Federal Register / Vol. 77, No. 1 / Tuesday, January 3, 2012 / Notices
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19
CFR 351.221(b)(4).
Dated: December 23, 2011.
Christian Marsh,
Acting Assistant Secretary for Import
Administration.
serves as a correction to the list of
companies under review in the abovereferenced proceeding. The initiation of
the administrative review of narrow
woven ribbons from Taiwan is correct
and remains unchanged.
This correction is issued and
published in accordance with section
777(i) of the Tariff Act of 1930, as
amended.
Dated: December 21, 2011.
Gary Taverman,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. 2011–33669 Filed 12–30–11; 8:45 am]
BILLING CODE 3510–DS–P
[FR Doc. 2011–33670 Filed 12–30–11; 8:45 am]
BILLING CODE 3510–DS–P
International Trade Administration
DEPARTMENT OF COMMERCE
[A–583–844]
International Trade Administration
Correction to Initiation of 2010–2011
Antidumping Duty Administrative
Review: Narrow Woven Ribbons With
Woven Selvedge From Taiwan
Oregon State University, et al.; Notice
of Consolidated Decision on
Applications for Duty-Free Entry of
Electron Microscope
Import Administration,
International Trade Administration,
Department of Commerce.
DATES: EFFECTIVE DATE: January 3, 2012.
FOR FURTHER INFORMATION CONTACT:
Hector Rodriguez or Holly Phelps, AD/
CVD Operations, Office 2, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW., Washington, DC 20230;
telephone: (202) 482–0629 and (202)
482–0656, respectively.
SUPPLEMENTARY INFORMATION:
Correction: On October 31, 2011, the
Department of Commerce published its
initiation of an administrative review of
the antidumping duty order covering
narrow woven ribbons with woven
selvedge (narrow woven ribbons) from
Taiwan. See Initiation of Antidumping
and Countervailing Duty Administrative
Reviews and Request for Revocation in
Part, 76 FR 67133, 67138 (Oct. 31,
2011). The period of review is
September 1, 2010, through August 31,
2011.
Subsequent to the publication of the
initiation of this segment of the
proceeding in the Federal Register, we
identified four inadvertent errors in the
initiation notice. Three companies had
typographical errors in their names:
FinerRibbon.com, shown as
FinerRibbons.com; Shienq Huong
Enterprise Co., Ltd., shown as Shieng
Huong Enterprise Co., Ltd.; and
Hubschercorp, shown as Hubs Hsien
Chan Enterprise Co., Ltd. In addition,
one company was omitted in error (i.e.,
Intercontinental Skyline). This notice
This is a decision consolidated
pursuant to Section 6(c) of the
Educational, Scientific, and Cultural
Materials Importation Act of 1966 (Pub.
L. 89–651, as amended by Pub. L. 106–
36; 80 Stat. 897; 15 CFR part 301).
Related records can be viewed between
8:30 a.m. and 5 p.m. in Room 3720, U.S.
Department of Commerce, 14th and
Constitution Avenue NW., Washington,
DC.
Docket Number: 11–067. Applicant:
Oregon State University, Corvallis, OR.
97331. Instrument: Electron Microscope.
Manufacturer: FEI Co., the Netherlands.
Intended Use: See notice at 76 FR
74045, November 30, 2011.
Docket Number: 11–068. Applicant:
Regents of the University of California at
Riverside, Riverside, CA 92521–0411.
Instrument: Electron Microscope.
Manufacturer: FEI Co., the Netherlands.
Intended Use: See notice at 76 FR
74045, November 30, 2011.
Docket Number: 11–069. Applicant:
U.S. Food and Drug Administration,
Silver Spring, MD 20903. Instrument:
Electron Microscope. Manufacturer:
JEOL, Ltd., Japan. Intended Use: See
notice at 76 FR 74045, November 30,
2011.
Comments: None received. Decision:
Approved. No instrument of equivalent
scientific value to the foreign
instrument, for such purposes as this
instrument is intended to be used, is
being manufactured in the United States
at the time the instrument was ordered.
Reasons: Each foreign instrument is an
electron microscope and is intended for
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Dated: December 22, 2011.
Gregory W. Campbell,
Director, Subsidies Enforcement Office,
Import Administration.
[FR Doc. 2011–33679 Filed 12–30–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
DEPARTMENT OF COMMERCE
AGENCY:
research or scientific educational uses
requiring an electron microscope. We
know of no electron microscope, or any
other instrument suited to these
purposes, which was being
manufactured in the United States at the
time of order of each instrument.
Sfmt 4703
[C–570–942]
Certain Kitchen Appliance Shelving
and Racks From the People’s Republic
of China: Extension of Time Limit for
the Final Results of the Countervailing
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
FOR FURTHER INFORMATION CONTACT:
Jennifer Meek at (202) 482–2778; AD/
CVD Operations, Office 1, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
On October 7, 2011, the Department
of Commerce (‘‘Department’’) published
the preliminary results of the
administrative review of the
countervailing duty order on certain
kitchen appliance shelving and racks
from the People’s Republic of China,
covering the period January 7, 2009,
through December 31, 2009. See Certain
Kitchen Appliance Shelving and Racks
From the People’s Republic of China:
Preliminary Results of the
Countervailing Duty Administrative
Review, 76 FR 62364 (October 7, 2011)
(‘‘Preliminary Results’’). In the
Preliminary Results we stated that we
would issue our final results for the
countervailing duty administrative
review no later than 120 days after the
date of publication of the Preliminary
Results. See Preliminary Results, 76 FR
at 62373.
Statutory Time Limits
Section 751(a)(3)(A) of the Tariff Act
of 1930, as amended (‘‘the Act’’),
requires the Department to issue the
final results of an administrative review
within 120 days of the publication of
E:\FR\FM\03JAN1.SGM
03JAN1
]]>Agencies
[Federal Register Volume 77, Number 1 (Tuesday, January 3, 2012)]
[Notices]
[Pages 79-82]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-33669]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-863]
Honey From the People's Republic of China: Preliminary Rescission
of the Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
administrative review of the antidumping duty order on honey from the
People's Republic of China (``PRC'') for the period of review (``POR'')
December 1, 2009, to November 30, 2010. As discussed below, we have
preliminarily determined to rescind this administrative review because
we have found the sales made by Dongtai Peak Honey Industry Co., Ltd.
(``Dongtai Peak'') that entered during the POR were not bona fide.
[[Page 80]]
DATES: Effective Date: January 3, 2012.
FOR FURTHER INFORMATION CONTACT: Catherine Bertrand, telephone: (202)
482-3207, or Josh Startup, telephone: (202) 482-5260; AD/CVD
Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230.
Background
The Department received timely requests from Petitioners \1\ and
Dongtai Peak, a Chinese producer and exporter of honey, in accordance
with 19 CFR 351.213(b), during the anniversary month of December, to
conduct a review of honey exporters from the PRC. On January 28, 2011,
the Department initiated this review with respect to all 60 requested
companies.\2\
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\1\ The American Honey Producers Association and Sioux Honey
Association, collectively ``Petitioners.''
\2\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 76 FR 5137 (January 28, 2011) (``Initiation
Notice'').
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On February 7, 2011, Mongolia Altin Bee-Keeping Co., Ltd., Suzhou
Shanding Honey Product Co., Ltd., and Wuhu Fenglian Co., Ltd. submitted
a letter certifying they had no shipments during the POR and requesting
the Department rescind this review with respect to each of them.\3\ On
February 24, 2011, Petitioners withdrew the request for review for all
companies requested except for Dongtai Peak. On March 9, 2011, the
Department published a notice of partial rescission in the Federal
Register for all of the companies for which the request for review was
withdrawn.\4\ Dongtai Peak remains the only company subject to this
review. On August 4, 2011, the Department published a notice extending
the time period for issuing the preliminary results by 120 days to
December 31, 2011.\5\
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\3\ Companies have the opportunity to submit statements
certifying that they did not ship the subject merchandise to the
United States during the POR.
\4\ See Honey from the People's Republic of China: Partial
Rescission of Antidumping Duty Administrative Review, 76 FR 12940
(March 9, 2011).
\5\ See Ninth Administrative Review of Honey From the People's
Republic of China: Extension of Time Limit for the Preliminary
Results, 76 FR 47238 (August 4, 2011).
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Respondent Selection
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter or producer of the
subject merchandise.\6\ However, section 777A(c)(2) of the Act gives
the Department discretion to limit its examination to a reasonable
number of exporters or producers, if it is not practicable to examine
all exporters or producers for which the review is initiated.
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\6\ See also 19 CFR 351.204(c) regarding respondent selection,
in general.
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On January 21, 2011, the Department released CBP data for entries
of the subject merchandise during the POR under administrative
protective order (``APO'') to all interested parties having access to
materials released under APO inviting comments regarding the CBP data
and respondent selection. The Department did not receive any comments
on the CBP data.
On February 16, 2011, the Department selected Dongtai Peak as the
only mandatory respondent.\7\ As noted above, Mongolia Altin Bee-
Keeping Co., Ltd., Suzhou Shanding Honey Product Co., Ltd., and Wuhu
Fenglian Co., Ltd. submitted a letter certifying they had no shipments
during the POR and are no longer subject to this review. As discussed
below, Petitioners have alleged that Dongtai Peak's sales were non-bona
fide transactions,\8\ and therefore did not provide a reasonable or
reliable basis for the Department to calculate a dumping margin.
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\7\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, from Josh Startup, International Trade Analyst, Office 9;
Selection of Respondents for the Antidumping Review Honey from the
People's Republic of China (``PRC''), dated February 16, 2011.
\8\ See, e.g., Petitioners' submissions received on August 1,
2011, October 14, 2011, and November 21, 2011.
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Separate Rates
In the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME reviews.\9\ Other than Dongtai Peak's
Section A portion of the questionnaire response filed on March 16,
2011, no companies submitted a separate rate application or
certification.
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\9\ See Initiation Notice.
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Questionnaires
On February 25, 2011, the Department issued its initial non-market
economy (``NME'') antidumping duty questionnaire to the mandatory
respondent Dongtai Peak. Dongtai Peak timely responded to the
Department's initial and subsequent supplemental questionnaires between
February and December 2011.\10\
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\10\ While the Department continued to receive submissions from
both Petitioners and Dongtai Peak through December, we were unable
to take submissions submitted on or after December 13, 2011, into
consideration for these preliminary results due to the close
proximity to statutory deadlines. Submissions received on or after
December 13, 2011, will be taken into consideration for the final
results.
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Period of Review
The POR is December 1, 2009, through November 30, 2010.
Scope of the Order
The products covered by the order are natural honey, artificial
honey containing more than 50 percent natural honey by weight,
preparations of natural honey containing more than 50 percent natural
honey by weight and flavored honey. The subject merchandise includes
all grades and colors of honey whether in liquid, creamed, comb, cut
comb, or chunk form, and whether packaged for retail or in bulk form.
The merchandise subject to the order is currently classifiable
under subheadings 0409.00.00, 1702.90.90 and 2106.90.99 of the
Harmonized Tariff Schedule of the United States (``HTSUS''). Although
the HTSUS subheadings are provided for convenience and customs
purposes, the Department's written description of the merchandise under
the order is dispositive.
Bona Fide Analysis
In this administrative review, Petitioners alleged that the sales
of Dongtai Peak were non-bona fide. Therefore, because there was an
allegation regarding the bona fide nature of these sales the Department
undertook that analysis in this review. Where all of the sales in a
review are deemed as non-bona fide commercial transactions, this must
end the review.\11\ To determine whether a sale in a review is
unrepresentative or extremely distortive, and therefore excludable as
non-bona fide, the Department employs a totality of the circumstances
test.\12\ In examining the totality of the circumstances, the
Department looks to whether or not the transaction is ``commercially
unreasonable'' or ``atypical.'' \13\ Atypical or non-typical in this
context means unrepresentative of a normal business practice.\14\
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\11\ See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United
States, 366 F. Supp. 2d 1246, 1249 (CIT 2005) (``TTPC'').
\12\ See Glycine From The People's Republic of China: Rescission
of Antidumping Duty New Shipper Review of Hebei New Donghua Amino
Acid Co., Ltd., 69 FR 47405, 47406 (August 5, 2004).
\13\ See Freshwater Crawfish Tail Meat from the People's
Republic of China: Notice of Final Results of Antidumping Duty New
Shipper Review, and Final Rescission of Antidumping Duty New Shipper
Review, 68 FR 1439, 1440 (January 10, 2003).
\14\ See Hebei New Donghua Amino Acid Co., Ltd. v. United
States, 374 F. Supp. 2d 1333, 1339 (CIT 2005) (``New Donghua''),
citing Windmill Int'l Pte., Ltd. v. United States, 193 F. Supp. 2d
1303, 1313 (CIT 2002) (``Windmill''); see also TTPC, 366 F. Supp. 2d
at 1249-50.
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[[Page 81]]
The Department examines the bona fide nature of a sale on a case-
by-case basis, and the analysis may vary with the facts surrounding
each sale.\15\ In TTPC, the court affirmed the Department's practice of
considering that ``any factor which indicates that the sale under
consideration is not likely to be typical of those which the producer
will make in the future is relevant,'' \16\ and found that ``the weight
given to each factor investigated will depend on the circumstances
surrounding the sale.'' \17\ The Court stated that the Department's
practice makes clear that the Department is highly likely to examine
objective, verifiable factors to ensure that a sale is not being made
to circumvent an antidumping duty order.\18\ Thus, a respondent is on
notice that it is unlikely to establish the bona fides of a sale merely
by claiming to have sold in a manner representative of its future
commercial practice.\19\
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\15\ See New Donghua, 374 F. Supp. 2d at 1340, n.5, citing TTPC,
366 F. Supp. 2d at 1260, and Certain Preserved Mushrooms From the
People's Republic of China: Final Results and Partial Rescission of
the New Shipper Review and Final Results and Partial Rescission of
the Third Antidumping Duty Administrative Review, 68 FR 41304 (July
11, 2003), and accompanying Issues and Decision Memorandum at
Comment 2.
\16\ See TTPC, 366 F. Supp. 2d at 1250.
\17\ See id. at 1263.
\18\ See New Donghua, 374 F. Supp. 2d at 1339.
\19\ See id.
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In evaluating whether sales subject to review are commercially
reasonable, and therefore bona fide, the Department normally considers
a number of factors such as: (1) The timing of the sale; (2) the price
and quantity; (3) the expenses arising from the transaction; (4)
whether the goods were resold at a profit; and (5) whether the
transaction was made on an arms-length basis; \20\ (6) as well as the
business practices of the importer and U.S. customers.\21\ In this case
and as further discussed below, the Department determines that the
business practices of the importer and U.S. customer are so atypical
and unusual that no other factors need to be analyzed.
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\20\ See TTPC, 366 F. Supp. 2d at 1250.
\21\ See New Donghua, 374 F. Supp. 2d at 1343-44.
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When performing its bona fide analysis, the Department reviews the
circumstances surrounding a respondent's sales of subject merchandise
that entered the United States during the POR.\22\ Concurrent with this
notice, we are issuing a business proprietary memorandum \23\ detailing
our analysis of the bona fides of Dongtai Peak's U.S. entries and our
preliminary decision to rescind the administrative review of Dongtai
Peak based on the totality of the circumstances of its sales, because
much of the information relied upon by the Department to analyze the
bona fides issue is business proprietary. The Department determined
that the sales made by Dongtai Peak were not bona fide for the
following reasons: (1) The ultimate disposition of the honey is
unknown, and no documentation was produced to demonstrate its status;
(2) the licensing inconsistencies of the U.S. importer and its resale
customer; and (3) the unusual channels of trade which the honey entered
following its importation. Therefore, we preliminarily find that
Dongtai Peak's sales that entered the United States during the POR are
not bona fide commercial transactions, and that Dongtai Peak's sales
entering the United States during the POR do not provide a reasonable
or reliable basis for calculating a dumping margin.
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\22\ See Dongtai Peak's Sections C and D Questionnaire Response,
submitted April 4, 2011, at C-1.
\23\ See Memorandum to the File from Josh Startup, International
Trade Analyst, through Catherine Bertrand, Program Manager, to James
C. Doyle, Director, regarding ``Antidumping Duty Administrative
Review of Honey from the People's Republic of China: Bona Fide
Analysis of Sales Under Review for Dongtai Peak Honey Industry Co.,
Ltd.,'' dated concurrently with this notice (``Dongtai Bona Fides
Memo'').
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Preliminary Determination To Rescind
As discussed above,\24\ we preliminarily determine that Dongtai
Peak's U.S. sales were not bona fide commercial transactions;
accordingly, Dongtai Peak has not met the requirements to qualify for
an administrative review during the POR. Therefore, the Department is
preliminarily rescinding this review with respect to Dongtai Peak
because Dongtai Peak has no reviewable entries during the POR.\25\
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\24\ See also Dongtai Bona Fides Memo.
\25\ See TTPC, 366 F. Supp. 2d at 1249 (``{P{time} ursuant to
the rulings of the Court, Commerce may exclude sales from the export
price calculation where it finds that they are not bona fide'').
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Public Hearing
Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of review.\26\ Rebuttal briefs and rebuttals to
written comments, limited to issues raised in such briefs or comments
may be filed no later than five days after the deadline for filing case
briefs.\27\ Parties who submit case briefs or rebuttal briefs in this
proceeding are requested to submit with each argument: (1) A statement
of the issue; (2) a brief summary of the argument; and (3) a table of
authorities.\28\
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\26\ See 19 CFR 351.309(c)(ii).
\27\ See 19 CFR 351.309(d).
\28\ See 19 CFR 351.309(c) and (d).
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In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of this administrative review, interested parties may submit publicly
available information to value factors of production (``FOPs'') within
20 days after the date of publication of these preliminary results.
Interested parties must provide the Department with supporting
documentation for the publicly available information to value each FOP.
Any interested party may request a hearing within 30 days of
publication of this notice.\29\ Hearing requests should contain the
following information: (1) The party's name, address, and telephone
number; (2) the number of participants; and (3) a list of the issues to
be discussed. Oral presentations will be limited to issues raised in
the briefs.\30\ The Department will issue the final results of this
administrative review, including the results of its analysis of the
issues raised in any written briefs, not later than 120 days after the
date of publication of this notice, pursuant to section 751(a)(3)(A) of
the Act.
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\29\ See 19 CFR 351.310(c).
\30\ See 19 CFR 351.310(d).
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Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries
covered by this review. For the companies receiving a separate rate
that were not selected for individual review, we will assign an
assessment rate based on rates calculated in previous reviews. Due to
the fact that this review of Dongtai Peak is preliminarily rescinded,
if this preliminary rescission is adopted in our final results of
review, Dongtai Peak's antidumping duties shall be assessed at rates
equal to the cash deposit of estimated antidumping duties required at
the time of entry, or withdrawal from warehouse, for consumption, in
accordance with 19 CFR 351.212(c)(2). The Department intends to issue
appropriate assessment instructions directly to CBP 15 days after
publication of the final results of this review.
Notification to Importers
This notice also serves as a preliminary 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
[[Page 82]]
this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Dated: December 23, 2011.
Christian Marsh,
Acting Assistant Secretary for Import Administration.
[FR Doc. 2011-33669 Filed 12-30-11; 8:45 am]
BILLING CODE 3510-DS-P
