Honey From the People's Republic of China: Preliminary Rescission of the Administrative Review, 79-82 [2011-33669]

Download as PDF pmangrum on DSK3VPTVN1PROD with NOTICES 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. VerDate Mar<15>2010 15:13 Dec 30, 2011 Jkt 226001 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; PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 79 (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: E:\FR\FM\03JAN1.SGM 03JAN1 80 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 pmangrum on DSK3VPTVN1PROD with NOTICES 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. VerDate Mar<15>2010 15:13 Dec 30, 2011 Jkt 226001 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 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 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. E:\FR\FM\03JAN1.SGM 03JAN1 Federal Register / Vol. 77, No. 1 / Tuesday, January 3, 2012 / Notices pmangrum on DSK3VPTVN1PROD with NOTICES 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, VerDate Mar<15>2010 15:13 Dec 30, 2011 Jkt 226001 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). PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 81 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 E:\FR\FM\03JAN1.SGM 03JAN1 82 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 pmangrum on DSK3VPTVN1PROD with NOTICES VerDate Mar<15>2010 15:13 Dec 30, 2011 Jkt 226001 PO 00000 Frm 00010 Fmt 4703 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