Honey From the People's Republic of China: Preliminary Results of Review, 46699-46704 [2012-19151]
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Federal Register / Vol. 77, No. 151 / Monday, August 6, 2012 / Notices
will instruct CBP to liquidate
unreviewed entries at the all-others rate
if there is no rate for the intermediate
company(ies) involved in the
transaction. For a full discussion of this
clarification, see Antidumping and
Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68
FR 23954 (May 6, 2003).
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Cash Deposit Requirements
The following cash deposit rates will
be effective upon publication of the
final results of this administrative
review for all shipments of certain pasta
from Turkey entered, or withdrawn
from warehouse, for consumption on or
after the publication date, as provided
by section 751(a)(2)(C) of the Act: (1)
The cash deposit rate for Marsan/Bellini
and TAT will be the rates established in
the final results of this review (except,
if the rates are zero or de minimis, then
zero cash deposit will be required); (2)
for previously reviewed or investigated
companies not listed above, the cash
deposit rate will continue to be the
company-specific rate published for the
most recent period; (3) if the exporter is
not a firm covered in this review, a prior
review, or the less-than-fair-value
(LTFV) investigation, but the
manufacturer is, the cash deposit rate
will be the rate established for the most
recent period for the manufacturer of
the merchandise; and (4) if neither the
exporter nor the manufacturer is a firm
covered in this or any previous review
or the LTFV investigation conducted by
the Department, the cash deposit rate
will be 51.49 percent, the All-Others
rate established in the LTFV.42 Because
we preliminarily determine that as of
June 2, 2011, neither Birlik nor Bellini
continue to exist as independent pasta
producers, we are not establishing a
cash deposit rate for these entities.
These cash deposit requirements shall
remain in effect until further notice.
Notification to Importers
This notice 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 and/or countervailing
duties prior to liquidation of the
relevant entries during this review
period. Failure to comply with this
requirement could result in the
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Dated: July 30, 2012.
Paul Piquado,
Assistant Secretary for Import
Administration.
[FR Doc. 2012–19157 Filed 8–3–12; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–863]
Honey From the People’s Republic of
China: Preliminary Results of Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: As discussed below, the U.S.
Department of Commerce (‘‘the
Department’’) preliminarily determines
that Dongtai Peak Honey Industry Co.,
Ltd. (‘‘Peak’’) failed to cooperate to the
best of its ability and is, therefore,
applying adverse facts available
(‘‘AFA’’). If these preliminary results are
adopted in the final results of review,
the Deparment will instruct U.S.
Customs and Border Protection (‘‘CBP’’)
to assess antidumping duties on entries
of subject merchandise during the
period of review (‘‘POR’’).
DATES: Effective Date: August 6, 2012.
FOR FURTHER INFORMATION CONTACT:
Kabir Archuletta, AD/CVD Operations,
Office 9, Import Administration,
International Trade Administration,
Department of Commerce, 14th Street
and Constitution Avenue NW.,
Washington, DC 20230; telephone: (202)
482–2593.
SUPPLEMENTARY INFORMATION:
AGENCY:
Case Timeline
response at 17. Thus, Marsan is not considered the
exporter of subject merchandise during the first
eleven months of the POR for purposes of this
review.
42 See Notice of Antidumping Duty Order and
Amended Final Determination of Sales at Less
Than Fair Value: Certain Pasta From Turkey, 61 FR
38545 (July 24, 1996).
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Secretary’s presumption that
reimbursement of antidumping and/or
countervailing duties occurred and the
subsequent assessment of double
antidumping and/or increase the
antidumping duty by the amount of the
countervailing duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act.
On January 31, 2012, the Department
published in the Federal Register a
notice of initiation of an administrative
review of the antidumping duty order
on honey from the People’s Republic of
China (‘‘PRC’’) covering the period
December 1, 2010, through November
30, 2011.1
1 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Requests for Revocation in Part, 77 FR 4759
(January 31, 2012) (‘‘Initiation Notice’’).
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46699
On March 2, 2012, the Department
issued an antidumping duty
questionnaire to Peak.2 On March 23,
2012, Peak responded to Section A of
the Department’s questionnaire.3 On
April 9, 2012, Peak submitted a request
for a one-day extension of the deadline
to file its response to Sections C and D
of the Department’s questionnaire, less
than 6 minutes before the deadline,4
which would make the new deadline
April 10, 2012. When the Department
granted Peak’s extension request, the
Department advised Peak to file any
future extension requests as soon as it
suspects additional time may be
necessary.5 On April 9, 2012, Peak
responded to Sections C and D of the
Department’s questionnaire.6 On April
3, 2012, the Department issued Peak a
supplemental Section A questionnaire
with a deadline of April 17, 2012.7 Peak
did not submit a response nor request
an extension by April 17, 2012. Instead,
on April 19, 2012, Peak submitted a
request for an extension of 10 days,
which would have made the new due
date April 27, 2012. On April 20, 2012,
the American Honey Producers
Association and Sioux Honey
Association (collectively ‘‘Petitioners’’)
submitted an objection to the untimely
extension request by Peak.8 On April 24,
2012, Peak submitted a rebuttal to
Petitioners Objection to Untimely
Extension Request.9 On April 27, 2012,
Peak requested a second extension of
one day, until April 28, 2012, and
submitted its supplemental Section A
response after the close of business on
April 27, 2012. On May 22, 2012, the
2 See Letter from Catherine Bertrand, Program
Manager, Office 9, to Peak, ‘‘Honey from the
People’s Republic of China (‘‘PRC’’): Non-Market
Economy Questionnaire’’ (March 2, 2012).
3 See Letter from Peak to the Secretary of
Commerce regarding Section A Response (March
23, 2012).
4 See Memo to the File from Kabir Archuletta,
International Trade Analyst, Office 9, ‘‘IA ACCESS
Submission Confirmation for Dongtai Peak Honey
Industry Co., Ltd., Section C and D Questionnaire
Response Extension’’ dated concurrently with this
notice.
5 See Memo to the File from Kabir Archuletta,
International Trade Analyst, Office 9, ‘‘Dongtai Peak
Honey Industry Co., Ltd., Questionnaire Extension’’
(April 9, 2012) (‘‘April 9 Extension Memo’’).
6 See Letter from Peak to the Secretary of
Commerce regarding Section C and D Response
(April 9, 2012).
7 See Letter from Catherine Bertrand, Program
Manager, Office 9, to Peak regarding Supplemental
Section A Questionnaire (April 3, 2012) (‘‘Peak
Supplemental Section A’’).
8 See Letter from Petitioners to the Secretary of
Commerce regarding objection to extension request
by Peak (April 20, 2012) (‘‘Petitioners Objection to
Untimely Extension Request’’).
9 See Letter from Peak to the Secretary of
Commerce regarding Peak’s rebuttal to Petitioners’
objection (April 24, 2012) (‘‘Peak’s Rebuttal to
Petitioners’ Objection’’).
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Department rejected, and removed from
the record, both of Peak’s untimely filed
extension requests and its untimely
filed supplemental Section A response
pursuant to 19 CFR 351.302(d).10 On
April 16, 2012, Petitioners withdrew
their request for an administrative
review for all companies under review
except Peak.11 On May 1, 2012, the
Department rescinded the review with
respect to Anhui Honghui, Foodstuff
(Group) Co., Ltd., Shanghai Bloom
International Trading Co., Ltd.,
Shanghai Taiside Trading Co., Ltd.,
Tianjin Eulia Honey Co., Ltd., and
Wuhan Bee Healthy Co., Ltd., as these
companies have a separate rate. The
Department stated it would address the
disposition of the remaining withdrawn
companies that do not have a separate
rate in the preliminary results of this
review.12
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,
2106.90.99, 0409.00.0010, 0409.00.0035,
0409.00.0005, 0409.00.0045,
0409.00.0056, and 0409.00.0065 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.
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Withdrawal of Requests for Review
As stated above, on April 16, 2012,
Petitioners withdrew their request for an
10 See Letter from Catherine Bertrand, Program
Manager, Office 9, to Peak ‘‘Tenth Administrative
Review of Honey from the People’s Republic of
China (‘‘PRC’’): Rejection of Supplemental Section
A Questionnaire Response and Removal from the
Record’’ (May 22, 2012) (‘‘Untimely Extension
Request Rejection Letter’’). On June 7, 2012, Peak
filed a request for reconsideration of the
Department’s decision to reject Peak’s submissions,
which we are declining to do at this time. See Letter
from Peak to the Secretary of Commerce regarding
Peak’s request for reconsideration of rejected
documents (June 7, 2012).
11 See Letter from Petitioners to the Secretary of
Commerce ‘‘Petitioners’ Partial Withdrawal of
Request for Tenth Administrative Review’’ (April
16, 2012).
12 See Honey From the People’s Republic of
China: Partial Rescission of Antidumping Duty
Administrative Review, 77 FR 25682 (May 1, 2012).
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administrative review for all companies
under review except Peak. The
Department previously rescinded those
companies which had a separate rate
and stated that we would address the
disposition of the remaining withdrawn
companies that did not have a separate
rate at the preliminary results of this
review.13 We note that the deadline to
file a separate rate application, separate
rate certification, or a notification of no
sales, exports or entries, is 60 days after
the initiation of the administrative
review,14 which in this case was March
31, 2012. Therefore, as of April 1, 2012,
the remaining companies under review
that did not demonstrate eligibility for
a separate rate effectively became part of
the PRC-wide entity. Accordingly, while
the requests for review of those
companies were withdrawn by
Petitioners on April 16, 2012, those
withdrawn companies remain under
review as part of the PRC-wide entity
and the Department will make a
determination with respect to the PRCwide entity at these preliminary results
and the final results.15
13 See
id.
Initiation Notice 77 FR at 4759–4760.
15 Ahcof Industrial Development Corp., Ltd.;
Alfred L. Wolff (Beijing) Co., Ltd.; Anhui Changhao
Import & Export Trading; Anhui Honghui Import &
Export Trade Co., Ltd.; Anhui Cereals Oils and
Foodstuffs I/E (Group) Corporation; Anhui Hundred
Health Foods Co., Ltd.; Anhui Native Produce Imp
& Exp Corp.; APM Global Logistics (Shanghai) Co.;
Baiste Trading Co., Ltd.; Cheng Du Wai Yuan Bee
Products Co., Ltd.; Chengdu Stone Dynasty Art
Stone; Damco China Limited Qingdao Branch;
Eurasia Bee’s Products Co., Ltd.; Feidong Foreign
Trade Co., Ltd.; Fresh Honey Co., Ltd. (formerly
Mgl. Yun Shen); Golden Tadco Int’l.; Hangzhou
Golden Harvest Health Industry Co., Ltd.; Hangzhou
Tienchu Miyuan Health Food Co., Ltd.; Haoliluck
Co., Ltd.; Hengjide Healthy Products Co. Ltd.; Hubei
Yusun Co., Ltd.; Inner Mongolia Altin Bee-Keeping;
Inner Mongolia Youth Trade Development Co., Ltd.;
Jiangsu Cereals, Oils Foodstuffs Import Export
(Group) Corp.; Jiangsu Kanghong Natural
Healthfoods Co., Ltd.; Jiangsu Light Industry
Products Imp & Exp (Group) Corp.; Jilin Province
Juhui Import; Maersk Logistics (China) Company
Ltd.; Nefelon Limited Company; Ningbo Shengye
Electric Appliance; Ningbo Shunkang Health Food
Co., Ltd.; Ningxia Yuehai Trading Co., Ltd.; Product
Source Marketing Ltd.; Qingdao Aolan Trade Co.,
Ltd.; QHD Sanhai Honey Co., Ltd.; Qinhuangdao
Municipal Dafeng Industrial Co., Ltd.; Renaissance
India Mannite; Shaanxi Youthsun Co., Ltd.;
Shanghai Foreign Trade Co., Ltd.; Shanghai Hui Ai
Mal Tose Co., Ltd.; Shanghai Luyuan Import &
Export; Shine Bal Co., Ltd.; Sichuan-Dujiangyan
Dubao Bee Industrial Co., Ltd.; Sichuan Hasten Imp
Exp. Trading Co. Ltd.; Silverstream International
Co., Ltd.; Sunnice Honey; Suzhou Aiyi IE Trading
Co., Ltd.; Suzhou Shanding Honey Product Co.,
Ltd.; Tianjin Weigeda Trading Co., Ltd.; Wanxi
Haohua Food Co., Ltd.; Wuhan Shino-Food Trade
Co., Ltd.; Wuhu Anjie Food Co., Ltd.; Wuhu Deli
Foods Co. Ltd.; Wuhu Fenglian Co., Ltd.; Wuhu
Qinshi Tangye; Wuhu Xinrui Bee-Product Co., Ltd.;
Xinjiang Jinhui Food Co., Ltd.; Youngster
International Trading Co., Ltd.; and, Zhejiang
Willing Foreign Trading Co.
14 See
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Facts Otherwise Available
Section 776(a) of the Tariff Act of
1930, as amended (‘‘the Act’’), provides
that the Department shall use facts
otherwise available if necessary
information is not otherwise available
on the record of the antidumping
proceeding. Specifically, section
776(a)(2) of the Act provides that where
an interested party: (A) Withholds
information that has been requested by
the Department; (B) fails to provide
requested information by the requested
date or in the form and manner
requested; (C) significantly impedes an
antidumping proceeding; or (D)
provides such information but the
information cannot be verified, the
Department shall use facts otherwise
available in reaching its determination.
As explained above, the Department
cautioned Peak in its April 9 Extension
Memo with respect to timely extension
requests, and advised Peak that the
Department must be afforded adequate
time to fully consider such requests.
Further, we note that the instructions in
the Section A supplemental
questionnaire issued to Peak, which it
failed to timely submit, stated that a
response or extension request must be
received by close of business on the day
of the deadline or the Department may
resort to the use of facts available.16 As
noted above, Peak did not timely
respond to the supplemental Section A
questionnaire issued by the Department
on April 3, 2012 and the Department
rejected Peak’s untimely filed extension
requests and its untimely filed
supplemental Section A response
pursuant to 19 CFR 351.302(d).
We note that in Grobest, the Court of
International Trade (‘‘CIT’’ or the
‘‘Court’’) recently held that rejecting a
separate rate certification (‘‘SRC’’) that
was three months late was an abuse of
discretion because, inter alia, the
certification had been submitted early in
the proceeding, the respondent was
diligent in attempting to correct the
error, and the burden on the agency to
consider the certification would have
been minimal.17 The Court noted that
the facts of that case suggested that the
administrative burden of reviewing the
SRC rejected by the Department would
not have been great because the
Department had granted the respondent
company separate-rate status in the
preceding three administrative reviews
without needing to conduct a separate16 See Letter from Catherine Bertrand, Program
Manager, Office 9, to Peak regarding Supplemental
Section A Questionnaire (April 3, 2012), at 2.
17 See Grobest & I-Mei Industrial (Vietnam) Co.,
Ltd., v. United States, 815 F. Supp. 2d 1342, 1367
(CIT 2012) (‘‘Grobest’’).
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rate analysis.18 Therefore, but for the
untimeliness of its submission, the
respondent would likely have received
a separate rate in the segment in
question, with minimal administrative
burden imposed upon the Department,
and, as a result of its rejected
submission, was likely assigned an
inaccurate and disproportionate
margin.19 The CIT further held that,
while the Department has discretion
both to set deadlines and to enforce
those deadlines by rejecting untimely
filings, that discretion is not absolute
and the Court will evaluate ‘‘on a caseby-case basis whether the interests of
accuracy and fairness outweigh’’ the
Department’s administrative burden and
interest in finality.20
In this case, the Department has
considered Peak’s untimely requests for
extension, and determined that Peak has
not provided good cause for submitting
its extension requests in an untimely
manner. As noted by the Court in
Grobest, the Department has the
discretion to ‘‘set and enforce
deadlines.’’ 21 The Departments
regulations provide that the agency
‘‘may, for good cause, extend any time
limit established by this part.’’ 22 Parties
requesting an extension are required to
submit a written request ‘‘before the
time limit specified’’ by the Department,
and must ‘‘state the reasons for the
request.’’ In its Supplemental Section A
Extension Request Peak explained that
it was requesting an extension of the
deadline for filing its supplemental
Section A response due to unexpected
computer failures and difficulties
communicating with management who
were away on business.23 However,
Peak provided no explanation as to why
it was unable to file the actual extension
request in a timely manner prior to the
deadline for its questionnaire response,
as required by section 19 CFR
351.302(c).24 This deficiency was also
pointed out by Petitioners in their
objection to Peak’s extension request:
‘‘* * *the request fails to explain in any
manner why it was not filed prior to the
deadline.’’ 25 In Peak’s Rebuttal to
Petitioners’ Objection, Peak again failed
to address this deficiency, merely
reiterating that the Department’s
regulations and long-standing policy
allow it to extend any deadline for good
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18 See
id.
Grobest, 815 F. Supp. 2d at 1366–1367.
20 See Grobest, 815 F. Supp. 2d at 1367.
21 See Grobest, 815 F. Supp. 2d at 1365.
22 See 19 CFR 351.302(b).
23 See Peak’s Rebuttal to Petitioners’ Objection, at
19 See
2.
24 See
id.
Petitioners Objection to Untimely
Extension Request, at 2.
25 See
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cause, explaining that the
‘‘circumstances surrounding the
unanticipated delay in the preparation
of the Supplemental Questionnaire at
issue were caused by unexpected
computer failures and the difficulties in
communicating with the management
personnel who were traveling in remold
areas for business.’’ 26 While the
Department may extend deadlines, it
does so ‘‘for good cause,’’ in accordance
with 19 CFR 351.302(b). Because Peak
did not provide any explanation for why
it did not submit its extension request
in a timely manner, the Department
determined that Peak had not provided
good cause pursuant to 19 CFR
351.302(b) for the Department to extend
retroactively its deadline for the
extension request and rejected Peak’s
two untimely extension requests and its
supplemental Section A response.27
The Department set deadlines in this
proceeding after careful consideration of
the time and resources that were needed
to complete a review of Peak’s sales
during the POR. Peak’s U.S. sales have
been found to be non-bona fide in two
prior reviews,28 a determination that
requires careful consideration of the
totality of circumstances, including: (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 armslength basis; 29 (6) as well as the
business practices of the importer and
U.S. customers.30 The supplemental
Section A questionnaire that Peak failed
to timely submit would have provided
information regarding Peak’s reported
quantity and value, its separate rate
status, structure and affiliations, sales
process, accounting and financial
practices, and merchandising. This
information has proven vital to the
Department’s prior non-bona fide
analyses. Moreover, the Department
requires a significant amount of time
and effort to gather the necessary
information, consider the facts of the
record, and provide interested parties
with an appropriate period for
26 See
Peak’s Rebuttal to Petitioners’ Objection, at
2.
27 See Untimely Extension Request Rejection
Letter, at 2.
28 See Administrative Review of Honey from the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Review and
Rescission of Review, In Part, 75 FR 24880, 24881
(May 6, 2010); Honey from the People’s Republic of
China: Final Rescission of Antidumping Duty
Administrative Review, 77 FR 34343, 34344 (June
11, 2012) (‘‘PRC Honey AR9 Final’’).
29 See Tianjin Tiancheng Pharmaceutical Co.,
Ltd. v. United States, 366 F. Supp. 2d 1246, 1250
(CIT 2005) (‘‘TTPC’’).
30 See New Donghua, 374 F. Supp. 2d at 1343–
44.
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46701
comments and rebuttal comments. For
example, in the ninth administrative
review of this proceeding the
Department issued its initial
questionnaire to Peak in February 2011,
and continued to request and receive
supplemental questionnaire responses
until December 13, 2011, just 10 days
before the preliminary results were
signed.31 In order to properly analyze
and consider submissions from Peak
and Petitioners, and provide an
opportunity for interested parties to
comment, the Department was required
to extend both its preliminary and final
results.32 The establishment of
deadlines for submission of factual
information in an antidumping duty
review is not arbitrary. Rather,
deadlines are specifically designed to
allow a respondent sufficient time to
prepare responses to detailed requests
for information, and to allow the
Department to analyze and verify that
information, within the statutorilymandated timeframe for completing the
review. The Department recognizes that
respondents may encounter difficulties
in meeting certain deadlines in the
course of any segment; indeed, the
Department’s regulations specifically
address the requirements governing
requests for extensions of specific time
limits (i.e., 19 CFR 351.302(c)). While
the Department may extend deadlines
when possible, and where there is good
cause, here Peak submitted no
explanation for why it was unable to
submit its extension requests in a timely
manner.
As noted above, Peak, had previously
requested an extension for its Section C
and D response before the applicable
deadline, albeit very close to that
deadline, and the Department advised
31 See Honey From the People’s Republic of
China: Preliminary Rescission of the Administrative
Review, 77 FR 79, 80 (January 3, 2012) (‘‘PRC Honey
AR9 Prelim’’) (‘‘While the Department continued to
receive submissions from both Petitioners and
{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’’).
32 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) (‘‘The Department requires more
time to gather and analyze surrogate value
information, and to review questionnaire responses
and issue supplemental questionnaires.’’); Honey
From the People’s Republic of China: Extension of
Time Limit for Final Results of the Antidumping
Duty Administrative Review, 77 FR 11489 (February
27, 2012) (‘‘The Department requires additional
time to complete this review because the
Department must fully analyze and consider
significant issues regarding whether the
respondent’s sales were bona fide. Further, the
Department extended the due date for submission
of the rebuttal comments to the case briefs at the
request of an interested party.’’).
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Peak at that time that extension requests
must be made well before the applicable
deadline.33 Accordingly, it was
important for Peak to provide the
Department adequate notice that it
required additional time to submit the
supplemental Section A questionnaire
response in the current administrative
review. Rather than doing so, Peak
submitted two untimely extension
requests, without providing any
explanation or ‘‘good cause’’ within the
meaning of section 351.302(b), for why
it was unable to submit an extension
request in a timely manner. The
Department notes that Peak did so
despite being cautioned on at least two
occasions that all extension requests
must be submitted before the deadline
for the requested information. Peak’s
supplemental Section A response was
submitted eleven days after the original
deadline, without the Department
having granted Peak’s two untimely
extension requests.34 Therefore, we
rejected Peak’s supplemental Section A
response as untimely pursuant to 19
CFR 351.302(d).35 Furthermore, the
Department’s decision to reject the
submissions at issue is consistent with
the general practice of rejecting
untimely filed questionnaire
responses.36 The Department establishes
appropriate deadlines to ensure that its
ability to complete the proceeding is not
jeopardized. We note that the CIT has
long recognized the need to establish,
and enforce, time limits for filing
questionnaire responses, the purpose of
which is to aid the Department in the
administration of the dumping laws.37
Accordingly, because the record lacks
a complete Section A response 38 from
33 See
April 9 Extension Memo.
Untimely Extension Request Rejection
Letter at 1.
35 See id. at 2.
36 See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value: Certain Hot-Rolled Carbon
Steel Flat Products From Ukraine, 66 FR 50401
(October 3, 2001), and accompanying Issues and
Decision Memorandum at Comment 5; Final
Determination of Sales at Less Than Fair Value:
Wooden Bedroom Furniture From the People’s
Republic of China, 69 FR 67313 (November 17,
2004), and accompanying Issues and Decision
Memorandum at Comment 82.
37 See e.g. Nippon Steel Corp. v. United States,
118 F. Supp. 2d 1366, 1377 (CIT 2000); and Seattle
Marine Fishing Supply, et al. v. United States, 679
F. Supp. 1119, 1128 (CIT 1998) (it was not
unreasonable for the Department to refuse to accept
untimely filed responses, where ‘‘the record
displays the ITA followed statutory procedure’’ and
the respondent ‘‘was afforded its chance to respond
to the questionnaires, which it failed to do.’’)
38 The supplemental questionnaire to which Peak
failed to respond requested explanations and
clarifying information regarding its quantity and
value, separate rate status, structure and affiliations,
sales process, accounting and financial practices,
and merchandising. See Peak Supplemental Section
A.
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34 See
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Peak, which has contained information
vital to our analyses of this respondent
in prior reviews, the Department finds
that the information necessary to
calculate an accurate margin is not
available on the record of this review.
Further, because we issued questions
regarding Peak’s separate rate status 39 to
which Peak did not timely respond,
Peak did not establish its eligibility in
this segment of the proceeding for a
separate rate. As a result, we
preliminarily find Peak to be part of the
PRC-wide entity. Because the entity,
which includes Peak, did not cooperate
to the best of its ability, the record lacks
the requisite data that is needed to reach
a determination. Accordingly, the
Department finds that the necessary
information to calculate an accurate and
reliable margin is not available on the
record of this proceeding. The
Department finds that because Peak, as
part of the PRC-wide entity, failed to
submit its response to the Department’s
Supplemental Section A questionnaire,
the PRC-wide entity withheld the
requested information, failed to provide
the information in a timely manner and
in the form requested, and significantly
impeded this proceeding, pursuant to
sections 776(a)(2)(A), (B), and (C) of the
Act. On this basis, the Department finds
that it must rely on the facts otherwise
available to determine a margin for the
PRC-wide entity in accordance with
section 776(a) of the Act.40
Adverse Facts Available
Section 776(b) of the Act states that if
the Department ‘‘finds that an interested
party has failed to cooperate by not
acting to the best of its ability to comply
with a request for information from the
administering authority * * * {the
Department} * * * may use an
inference that is adverse to the interests
of the party in selecting from among the
facts otherwise available.’’41 Adverse
inferences are appropriate to ‘‘ensure
that the party does not obtain a more
favorable result by failing to cooperate
than if it had cooperated fully.’’42 In
selecting an adverse inference, the
Department may rely on information
derived from the petition, the final
determination in the investigation, any
39 See
id., at 4–6.
Non-Malleable Cast Iron Pipe Fittings from
the People’s Republic of China: Final Results of
Antidumping Duty Administrative Review, 71 FR
69546 (December 1, 2006), and accompanying
Issues and Decision Memorandum at Comment 1.
41 See also Statement of Administrative Action
accompanying the Uruguay Round Agreements Act,
H.R. Rep. No., 103–316 at 870 (1994) (‘‘SAA’’).
42 See id.
40 See
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previous review, or any other
information placed on the record.43
The Department determines that the
PRC-wide entity, which includes Peak
due to its failure to respond to all of the
Department’s questionnaires, has failed
to cooperate to the best of its ability in
providing the requested information.
Accordingly, pursuant to sections
776(a)(2)(A), (B), and (C) and section
776(b) of the Act, we find it appropriate
to apply a margin to the PRC-wide
entity based entirely on the facts
available, and to apply an adverse
inference.44 By doing so, we ensure that
the PRC-wide entity, which includes
Peak, will not obtain a more favorable
result by failing to cooperate than had
it cooperated fully in this review.
The Department’s practice is to select
an AFA rate that is sufficiently adverse
as to effectuate the purpose of the facts
available rule to induce respondents to
provide the Department with complete
and accurate information in a timely
manner and that ensures that the party
does not obtain a more favorable result
by failing to cooperate than if it had
cooperated fully.45 Specifically, the
Department’s practice in reviews, when
selecting a rate as total AFA, is to use
the highest rate on the record of the
proceeding which, to the extent
practicable, can be corroborated.46 The
CIT and the U.S. Court of Appeals for
the Federal Circuit (‘‘Federal Circuit’’)
have affirmed decisions to select the
highest margin from any prior segment
of the proceeding as the AFA rate on
numerous occasions.47 Therefore, we
43 See
section 776(b) of the Act.
Certain Frozen Warmwater Shrimp From
the Socialist Republic of Vietnam: Preliminary
Results of the First Administrative Review, 72 FR
10689, 10692 (March 9, 2007) (decision to apply
total AFA to the NME-wide entity), unchanged in
Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam: Final Results of the
First Administrative Review and First New Shipper
Review, 72 FR 52052 (September 12, 2007).
45 See Notice of Final Determination of Sales at
Less than Fair Value: Static Random Access
Memory Semiconductors From Taiwan, 63 FR 8909,
8911 (February 23, 1998); see also Brake Rotors
From the People’s Republic of China: Final Results
and Partial Rescission of the Seventh
Administrative Review; Final Results of the
Eleventh New Shipper Review, 70 FR 69937, 69939
(November 18, 2005), and SAA at 870.
46 See Glycine from the People’s Republic of
China: Preliminary Results of Antidumping Duty
Administrative Review, 74 FR 15930, 15934 (April
8, 2009), unchanged in Glycine From the People’s
Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 FR 41121 (August
14, 2009); see also Fujian Lianfu Forestry Co., Ltd.
v. United States, 638 F. Supp. 2d 1325, 1336 (CIT
August 10, 2009) (’’Commerce may, of course, begin
its total AFA selection process by defaulting to the
highest rate in any segment of the proceeding, but
that selection must then be corroborated, to the
extent practicable.’’).
47 See, e.g., KYD, Inc. v United States, 607 F.3d
760, 766–767 (CAFC 2010) (‘‘KYD’’); see also NSK
44 See
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are assigning the PRC-wide entity,
which includes Peak, a rate of $2.63 per
kilogram, which is the highest rate on
the record of this proceeding and which
was the rate assigned to the PRC-wide
entity in the seventh administrative
review of this proceeding, the most
recent review that was not rescinded.48
mstockstill on DSK4VPTVN1PROD with NOTICES
Corroboration
Section 776(c) of the Act requires the
Department to corroborate, to the extent
practicable, secondary information used
as facts available. To be considered
corroborated, the Department must find
the information has probative value,
meaning that the information must be
both reliable and relevant.49 Secondary
information is ‘‘{i}nformation derived
from the petition that gave rise to the
investigation or review, the final
determination concerning the subject
merchandise, or any previous review
under section 751 {of the Act}
concerning the subject merchandise.’’50
Unlike other types of information, such
as input costs or selling expenses, there
are no independent sources for
calculated margins. Thus, in an
administrative review, if the Department
chooses, as AFA, a calculated dumping
margin from a prior segment of the
proceeding, it is not necessary to
question the reliability of the margin.51
The Department considers the AFA
rate calculated for the current review as
both reliable and relevant. On the issue
of reliability, the adverse rate selected
was calculated for another respondent,
Ltd. v. United States, 346 F. Supp. 2d 1312, 1335
(CIT 2004) (affirming a 73.55 percent total AFA rate,
the highest available dumping margin calculated for
a different respondent in the investigation).
48 See Administrative Review of Honey from the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Review and
Rescission of Review, In Part, 75 FR 24880, 24882
(May 6, 2010).
49 See SAA at 870; Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished From
Japan, and Tapered Roller Bearings Four Inches or
Less in Outside Diameter and Components Thereof,
From Japan; Preliminary Results of Antidumping
Duty Administrative Reviews and Partial
Termination of Administrative Reviews, 61 FR
57391, 57392 (November 6, 1996) unchanged in
Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished From Japan, and Tapered
Roller Bearings Four Inches or Less in Outside
Diameter and Components Thereof, From Japan;
Final Results of Antidumping Duty Administrative
Reviews and Termination in Part, 62 FR 11825
(March 13, 1997).
50 See SAA, H.R. Doc. No. 103–316 at 870 (1994)
and 19 CFR 351.308 (d).
51 See Heavy Forged Hand Tools, Finished or
Unfinished, With or Without Handles, From the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Reviews, Final
Partial Rescission of Antidumping Duty
Administrative Reviews, and Determination Not To
Revoke in Part, 69 FR 55581 (September 15, 2004),
and accompanying Issues and Decision
Memorandum at Comment 18.
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17:11 Aug 03, 2012
Jkt 226001
Anhui Native Produce Import & Export
Corporation, during the sixth
administrative review.52 No information
has been presented in the current
review that calls into question the
reliability of this information. With
respect to the relevance, the Department
will consider information reasonably at
its disposal to determine whether a
margin continues to have relevance.
Where circumstances indicate that the
selected margin is not appropriate as
AFA, the Department will disregard the
margin and determine an appropriate
margin. For example, in Fresh Cut
Flowers from Mexico, the Department
disregarded the highest margin in that
case as best information available (the
predecessor to facts available) because
the margin was based on another
company’s uncharacteristic business
expense resulting in an unusually high
margin.53 This rate was assigned to the
PRC-wide entity in a prior review which
demonstrates its relevance to the PRCwide entity. Furthermore, the selected
AFA margin is based upon the
calculated rate for another respondent
in sixth administrative review of this
proceeding, and thus reflects the
commercial reality of a competitor in
the same industry.54 There is no
information on the record to indicate
that this rate is not relevant, as was the
case in Fresh Cut Flowers from Mexico.
For all these reasons, the Department
finds that this rate is also relevant.
Given that the PRC-wide entity,
which includes Peak, failed to cooperate
to the best of its ability in this
administrative review, it is appropriate
to select an AFA rate that serves as an
adequate deterrent in order to induce
cooperation in the proceeding. The
Federal Circuit held in KYD, that
selecting the highest prior margin
reflects ‘‘a common sense inference that
the highest prior margin is the most
probative evidence of current margins
because, if it were not so, the importer
knowing of the rule, would have
produced current information showing
the margin to be less.’’55 Here, Peak did
not produce current information in a
52 See Honey From the People’s Republic of
China: Final Results and Partial Rescission of
Antidumping Duty Administrative Review, 74 FR
796 (January 8, 2009) (‘‘PRC Honey AR6’’).
53 See Fresh Cut Flowers from Mexico; Final
Results of Antidumping Administrative Review, 61
FR 6812, 6814 (February 22, 1996) (‘‘Fresh Cut
Flowers from Mexico’’) cited in Certain Kitchen
Appliance Shelving and Racks from the People’s
Republic of China: Final Results and Partial
Rescission of First Antidumping Duty
Administrative Review, 77 FR 21734, 21737 (April
11, 2012).
54 See PRC Honey AR6.
55 See KYD, Inc. v. United States, 607 F.3d 760,
766 (Fed. Cir. 2010) citing Rhone Poulenc, Inc. v.
United States, 899 F.2d 1185, 1190 (CAFC 1990).
PO 00000
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Fmt 4703
Sfmt 4703
46703
timely manner, as noted above. On this
basis, we find that selecting the highest
calculated rate of this proceeding is
sufficiently relevant to the commercial
reality for the PRC-wide entity, which
includes Peak. Furthermore, there is no
information on the record of this review
that demonstrates that this rate is
uncharacteristic of the industry, or
otherwise inappropriate for use as AFA.
Based upon the foregoing, we determine
this rate to be relevant.
As the $2.63 per kilogram AFA rate is
both reliable and relevant, we determine
that it has probative value and is
corroborated to the extent practicable, in
accordance with section 776(c) of the
Act. Therefore, we have assigned this
rate as AFA to exports of the subject
merchandise by the PRC-wide entity,
which includes Peak.
Preliminary Results of Review
We preliminarily determine that the
following antidumping duty margin
exists:
Manufacturer/Exporter
PRC-wide entity (which includes
Dongtai Peak Honey Industry
Co., Ltd.) .................................
Margin
(dollars per
kilogram)
$2.63
Briefs and Public Hearing
Interested parties are invited to
comment on the preliminary results and
may submit case briefs and/or written
comments within 30 days of the date of
publication of this notice, pursuant to
19 CFR 351.309(c)(1)(ii). Rebuttal briefs,
limited to issues raised in the case
briefs, will be due five days later,
pursuant to 19 CFR 351.309(d). Parties
who submit case or rebuttal briefs in
this proceeding are requested to submit
with each argument (1) a statement of
the issue and (2) a brief summary of the
argument. Parties are requested to
provide a summary of the arguments not
to exceed five pages and a table of
statutes, regulations, and cases cited, in
accordance with 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c),
interested parties who wish to request a
hearing, or to participate if one is
requested, must submit a written
Federal Register to the Assistant
Secretary for Import Administration,
U.S. Department of Commerce, pursuant
to the Department’s e-filing regulations
located at https://iaaccess.trade.gov/
help/IA%20ACCESS%20User%20
Guide.pdf. Requests should contain: (1)
The party’s name, address and
telephone number; (2) the number of
participants; and (3) a list of issues to be
discussed. Issues raised in the hearing
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will be limited to those raised in the
respective case briefs.
The Department intends to 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.
mstockstill on DSK4VPTVN1PROD with NOTICES
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. The Department intends to issue
assessment instructions to CBP 15 days
after the publication date of the final
results of this review. In accordance
with 19 CFR 351.212(b)(1), we will
calculate importer- (or customer-)
specific assessment rates for the
merchandise subject to this review.
Where the respondent has reported
reliable entered values, we will
calculate importer- (or customer-)
specific ad valorem rates by aggregating
the dumping margins calculated for all
U.S. sales to each importer (or customer)
and dividing this amount by the total
entered value of the sales to each
importer (or customer). Where an
importer- (or customer-) specific ad
valorem rate is greater than de minimis,
we will apply the assessment rate to the
entered value of the importers’/
customers’ entries during the POR,
pursuant to 19 CFR 351.212(b)(1).
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) For the
exporters listed above, the cash deposit
rate will be the rate established in the
final results of this review (except, if the
rate is zero or de minimis, i.e., less than
0.5 percent, no cash deposit rate will be
required for that company); (2) for
previously investigated or reviewed PRC
and non-PRC exporters not listed above
that have separate rates, the cash
deposit rate will continue to be the
exporter-specific rate published for the
most recently completed period; (3) for
all PRC exporters of subject
merchandise that have not been found
to be entitled to a separate rate, the cash
deposit rate will be the PRC-wide rate
of $2.63 per kilogram; and, (4) for all
non-PRC exporters of subject
merchandise which have not received
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17:11 Aug 03, 2012
Jkt 226001
their own rate, the cash deposit rate will
be the rate applicable to the PRC
exporter(s) that supplied that non-PRC
exporter. These deposit requirements,
when imposed, shall remain in effect
until further notice.
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
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
These preliminary results are 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: July 30, 2012.
Paul Piquado,
Assistant Secretary for Import
Administration.
[FR Doc. 2012–19151 Filed 8–3–12; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–583–837]
Polyethylene Terephthalate Film,
Sheet, and Strip From Taiwan:
Preliminary Results of Antidumping
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) is conducting an
administrative review of the
antidumping duty order on
polyethylene terephthalate film, sheet,
and strip (PET Film) from Taiwan. The
period of review (POR) is July 1, 2010,
through June 30, 2011. This review
covers respondents Shinkong Synthetic
Fibers Corporation (SSFC) and its
subsidiary Shinkong Materials
Technology Co. Ltd. (SMTC)
(collectively, Shinkong), and Nan Ya
Plastics Corporation, Ltd. (Nan Ya),
producers and exporters of PET Film
from Taiwan. The Department
preliminarily determines that Nan Ya
made and Shinkong did not make sales
of PET Film from Taiwan below normal
value (NV). The preliminary results are
listed below in the section titled
‘‘Preliminary Results of Review.’’
AGENCY:
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Frm 00024
Fmt 4703
Sfmt 4703
Interested parties are invited to
comment on these preliminary results.
DATES: Effective Date: August 6, 2012.
FOR FURTHER INFORMATION CONTACT:
Sean Carey or Milton Koch, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW, Washington, DC 20230;
telephone: (202) 428–3964, or (202)
482–2584, respectively.
SUPPLEMENTARY INFORMATION:
Background
On July 1, 2002, the Department
published in the Federal Register the
antidumping duty order on PET Film
from Taiwan.1 On July 1, 2011, the
Department published a notice of
opportunity to request an administrative
review of the order.2 In response, on
July 29, 2011, Petitioners3 requested
that the Department conduct an
administrative review of Nan Ya’s and
Shinkong’s sales of PET Film from
Taiwan to the United States. Also on
July 29, Shinkong requested that the
Department conduct an administrative
review of its sales. On August 1, 2011,
Nan Ya requested that the Department
conduct an administrative review of its
sales.4 On November 25, 2011,
Petitioners withdrew their request for an
administrative review of Nan Ya.
However, because Nan Ya requested a
review of itself, there was no basis to
rescind the review of Nan Ya.
On August 26, 2011, the Department
initiated an administrative review of
Shinkong and Nan Ya (collectively, the
respondents).5 On September 9, 2011,
the Department issued an antidumping
duty questionnaire to the respondents.
On October 21 and 24, 2011,
respectively, Shinkong and Nan Ya
timely filed their Section A response.
On November 14 and 18, 2011,
1 See Notice of Amended Final Antidumping Duty
Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Polyethylene
Terephthalate Film, Sheet, and Strip (PET Film)
from Taiwan, 67 FR 44174 (July 1, 2002), as
corrected in 67 FR 46566 (July 15, 2002).
2 See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation: Opportunity
To Request Administrative Review, 76 FR 38609,
38610 (July 1, 2011).
3 Petitioners are DuPont Teijin Films, Mitsubishi
Polyester Film, Inc., SKC, Inc., and Toray Plastics
(America), Inc.
4 This request was timely because July 31, 2011
was a Sunday. See Notice of Clarification:
Application of ‘‘Next Business Day’’ Rule for
Administrative Determination Deadlines Pursuant
to the Tariff Act of 1930, As Amended,70 FR 24533
(May 10, 2005).
5 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Requests for Revocation In Part, 76 FR 53404, 53406
(August 26, 2011).
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]]>Agencies
[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Notices]
[Pages 46699-46704]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-19151]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-863]
Honey From the People's Republic of China: Preliminary Results of
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: As discussed below, the U.S. Department of Commerce (``the
Department'') preliminarily determines that Dongtai Peak Honey Industry
Co., Ltd. (``Peak'') failed to cooperate to the best of its ability and
is, therefore, applying adverse facts available (``AFA''). If these
preliminary results are adopted in the final results of review, the
Deparment will instruct U.S. Customs and Border Protection (``CBP'') to
assess antidumping duties on entries of subject merchandise during the
period of review (``POR'').
DATES: Effective Date: August 6, 2012.
FOR FURTHER INFORMATION CONTACT: Kabir Archuletta, AD/CVD Operations,
Office 9, Import Administration, International Trade Administration,
Department of Commerce, 14th Street and Constitution Avenue NW.,
Washington, DC 20230; telephone: (202) 482-2593.
SUPPLEMENTARY INFORMATION:
Case Timeline
On January 31, 2012, the Department published in the Federal
Register a notice of initiation of an administrative review of the
antidumping duty order on honey from the People's Republic of China
(``PRC'') covering the period December 1, 2010, through November 30,
2011.\1\
---------------------------------------------------------------------------
\1\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 77 FR
4759 (January 31, 2012) (``Initiation Notice'').
---------------------------------------------------------------------------
On March 2, 2012, the Department issued an antidumping duty
questionnaire to Peak.\2\ On March 23, 2012, Peak responded to Section
A of the Department's questionnaire.\3\ On April 9, 2012, Peak
submitted a request for a one-day extension of the deadline to file its
response to Sections C and D of the Department's questionnaire, less
than 6 minutes before the deadline,\4\ which would make the new
deadline April 10, 2012. When the Department granted Peak's extension
request, the Department advised Peak to file any future extension
requests as soon as it suspects additional time may be necessary.\5\ On
April 9, 2012, Peak responded to Sections C and D of the Department's
questionnaire.\6\ On April 3, 2012, the Department issued Peak a
supplemental Section A questionnaire with a deadline of April 17,
2012.\7\ Peak did not submit a response nor request an extension by
April 17, 2012. Instead, on April 19, 2012, Peak submitted a request
for an extension of 10 days, which would have made the new due date
April 27, 2012. On April 20, 2012, the American Honey Producers
Association and Sioux Honey Association (collectively ``Petitioners'')
submitted an objection to the untimely extension request by Peak.\8\ On
April 24, 2012, Peak submitted a rebuttal to Petitioners Objection to
Untimely Extension Request.\9\ On April 27, 2012, Peak requested a
second extension of one day, until April 28, 2012, and submitted its
supplemental Section A response after the close of business on April
27, 2012. On May 22, 2012, the
[[Page 46700]]
Department rejected, and removed from the record, both of Peak's
untimely filed extension requests and its untimely filed supplemental
Section A response pursuant to 19 CFR 351.302(d).\10\ On April 16,
2012, Petitioners withdrew their request for an administrative review
for all companies under review except Peak.\11\ On May 1, 2012, the
Department rescinded the review with respect to Anhui Honghui,
Foodstuff (Group) Co., Ltd., Shanghai Bloom International Trading Co.,
Ltd., Shanghai Taiside Trading Co., Ltd., Tianjin Eulia Honey Co.,
Ltd., and Wuhan Bee Healthy Co., Ltd., as these companies have a
separate rate. The Department stated it would address the disposition
of the remaining withdrawn companies that do not have a separate rate
in the preliminary results of this review.\12\
---------------------------------------------------------------------------
\2\ See Letter from Catherine Bertrand, Program Manager, Office
9, to Peak, ``Honey from the People's Republic of China (``PRC''):
Non-Market Economy Questionnaire'' (March 2, 2012).
\3\ See Letter from Peak to the Secretary of Commerce regarding
Section A Response (March 23, 2012).
\4\ See Memo to the File from Kabir Archuletta, International
Trade Analyst, Office 9, ``IA ACCESS Submission Confirmation for
Dongtai Peak Honey Industry Co., Ltd., Section C and D Questionnaire
Response Extension'' dated concurrently with this notice.
\5\ See Memo to the File from Kabir Archuletta, International
Trade Analyst, Office 9, ``Dongtai Peak Honey Industry Co., Ltd.,
Questionnaire Extension'' (April 9, 2012) (``April 9 Extension
Memo'').
\6\ See Letter from Peak to the Secretary of Commerce regarding
Section C and D Response (April 9, 2012).
\7\ See Letter from Catherine Bertrand, Program Manager, Office
9, to Peak regarding Supplemental Section A Questionnaire (April 3,
2012) (``Peak Supplemental Section A'').
\8\ See Letter from Petitioners to the Secretary of Commerce
regarding objection to extension request by Peak (April 20, 2012)
(``Petitioners Objection to Untimely Extension Request'').
\9\ See Letter from Peak to the Secretary of Commerce regarding
Peak's rebuttal to Petitioners' objection (April 24, 2012) (``Peak's
Rebuttal to Petitioners' Objection'').
\10\ See Letter from Catherine Bertrand, Program Manager, Office
9, to Peak ``Tenth Administrative Review of Honey from the People's
Republic of China (``PRC''): Rejection of Supplemental Section A
Questionnaire Response and Removal from the Record'' (May 22, 2012)
(``Untimely Extension Request Rejection Letter''). On June 7, 2012,
Peak filed a request for reconsideration of the Department's
decision to reject Peak's submissions, which we are declining to do
at this time. See Letter from Peak to the Secretary of Commerce
regarding Peak's request for reconsideration of rejected documents
(June 7, 2012).
\11\ See Letter from Petitioners to the Secretary of Commerce
``Petitioners' Partial Withdrawal of Request for Tenth
Administrative Review'' (April 16, 2012).
\12\ See Honey From the People's Republic of China: Partial
Rescission of Antidumping Duty Administrative Review, 77 FR 25682
(May 1, 2012).
---------------------------------------------------------------------------
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, 2106.90.99, 0409.00.0010,
0409.00.0035, 0409.00.0005, 0409.00.0045, 0409.00.0056, and
0409.00.0065 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.
Withdrawal of Requests for Review
As stated above, on April 16, 2012, Petitioners withdrew their
request for an administrative review for all companies under review
except Peak. The Department previously rescinded those companies which
had a separate rate and stated that we would address the disposition of
the remaining withdrawn companies that did not have a separate rate at
the preliminary results of this review.\13\ We note that the deadline
to file a separate rate application, separate rate certification, or a
notification of no sales, exports or entries, is 60 days after the
initiation of the administrative review,\14\ which in this case was
March 31, 2012. Therefore, as of April 1, 2012, the remaining companies
under review that did not demonstrate eligibility for a separate rate
effectively became part of the PRC-wide entity. Accordingly, while the
requests for review of those companies were withdrawn by Petitioners on
April 16, 2012, those withdrawn companies remain under review as part
of the PRC-wide entity and the Department will make a determination
with respect to the PRC-wide entity at these preliminary results and
the final results.\15\
---------------------------------------------------------------------------
\13\ See id.
\14\ See Initiation Notice 77 FR at 4759-4760.
\15\ Ahcof Industrial Development Corp., Ltd.; Alfred L. Wolff
(Beijing) Co., Ltd.; Anhui Changhao Import & Export Trading; Anhui
Honghui Import & Export Trade Co., Ltd.; Anhui Cereals Oils and
Foodstuffs I/E (Group) Corporation; Anhui Hundred Health Foods Co.,
Ltd.; Anhui Native Produce Imp & Exp Corp.; APM Global Logistics
(Shanghai) Co.; Baiste Trading Co., Ltd.; Cheng Du Wai Yuan Bee
Products Co., Ltd.; Chengdu Stone Dynasty Art Stone; Damco China
Limited Qingdao Branch; Eurasia Bee's Products Co., Ltd.; Feidong
Foreign Trade Co., Ltd.; Fresh Honey Co., Ltd. (formerly Mgl. Yun
Shen); Golden Tadco Int'l.; Hangzhou Golden Harvest Health Industry
Co., Ltd.; Hangzhou Tienchu Miyuan Health Food Co., Ltd.; Haoliluck
Co., Ltd.; Hengjide Healthy Products Co. Ltd.; Hubei Yusun Co.,
Ltd.; Inner Mongolia Altin Bee-Keeping; Inner Mongolia Youth Trade
Development Co., Ltd.; Jiangsu Cereals, Oils Foodstuffs Import
Export (Group) Corp.; Jiangsu Kanghong Natural Healthfoods Co.,
Ltd.; Jiangsu Light Industry Products Imp & Exp (Group) Corp.; Jilin
Province Juhui Import; Maersk Logistics (China) Company Ltd.;
Nefelon Limited Company; Ningbo Shengye Electric Appliance; Ningbo
Shunkang Health Food Co., Ltd.; Ningxia Yuehai Trading Co., Ltd.;
Product Source Marketing Ltd.; Qingdao Aolan Trade Co., Ltd.; QHD
Sanhai Honey Co., Ltd.; Qinhuangdao Municipal Dafeng Industrial Co.,
Ltd.; Renaissance India Mannite; Shaanxi Youthsun Co., Ltd.;
Shanghai Foreign Trade Co., Ltd.; Shanghai Hui Ai Mal Tose Co.,
Ltd.; Shanghai Luyuan Import & Export; Shine Bal Co., Ltd.; Sichuan-
Dujiangyan Dubao Bee Industrial Co., Ltd.; Sichuan Hasten Imp Exp.
Trading Co. Ltd.; Silverstream International Co., Ltd.; Sunnice
Honey; Suzhou Aiyi IE Trading Co., Ltd.; Suzhou Shanding Honey
Product Co., Ltd.; Tianjin Weigeda Trading Co., Ltd.; Wanxi Haohua
Food Co., Ltd.; Wuhan Shino-Food Trade Co., Ltd.; Wuhu Anjie Food
Co., Ltd.; Wuhu Deli Foods Co. Ltd.; Wuhu Fenglian Co., Ltd.; Wuhu
Qinshi Tangye; Wuhu Xinrui Bee-Product Co., Ltd.; Xinjiang Jinhui
Food Co., Ltd.; Youngster International Trading Co., Ltd.; and,
Zhejiang Willing Foreign Trading Co.
---------------------------------------------------------------------------
Facts Otherwise Available
Section 776(a) of the Tariff Act of 1930, as amended (``the Act''),
provides that the Department shall use facts otherwise available if
necessary information is not otherwise available on the record of the
antidumping proceeding. Specifically, section 776(a)(2) of the Act
provides that where an interested party: (A) Withholds information that
has been requested by the Department; (B) fails to provide requested
information by the requested date or in the form and manner requested;
(C) significantly impedes an antidumping proceeding; or (D) provides
such information but the information cannot be verified, the Department
shall use facts otherwise available in reaching its determination.
As explained above, the Department cautioned Peak in its April 9
Extension Memo with respect to timely extension requests, and advised
Peak that the Department must be afforded adequate time to fully
consider such requests. Further, we note that the instructions in the
Section A supplemental questionnaire issued to Peak, which it failed to
timely submit, stated that a response or extension request must be
received by close of business on the day of the deadline or the
Department may resort to the use of facts available.\16\ As noted
above, Peak did not timely respond to the supplemental Section A
questionnaire issued by the Department on April 3, 2012 and the
Department rejected Peak's untimely filed extension requests and its
untimely filed supplemental Section A response pursuant to 19 CFR
351.302(d).
---------------------------------------------------------------------------
\16\ See Letter from Catherine Bertrand, Program Manager, Office
9, to Peak regarding Supplemental Section A Questionnaire (April 3,
2012), at 2.
---------------------------------------------------------------------------
We note that in Grobest, the Court of International Trade (``CIT''
or the ``Court'') recently held that rejecting a separate rate
certification (``SRC'') that was three months late was an abuse of
discretion because, inter alia, the certification had been submitted
early in the proceeding, the respondent was diligent in attempting to
correct the error, and the burden on the agency to consider the
certification would have been minimal.\17\ The Court noted that the
facts of that case suggested that the administrative burden of
reviewing the SRC rejected by the Department would not have been great
because the Department had granted the respondent company separate-rate
status in the preceding three administrative reviews without needing to
conduct a separate-
[[Page 46701]]
rate analysis.\18\ Therefore, but for the untimeliness of its
submission, the respondent would likely have received a separate rate
in the segment in question, with minimal administrative burden imposed
upon the Department, and, as a result of its rejected submission, was
likely assigned an inaccurate and disproportionate margin.\19\ The CIT
further held that, while the Department has discretion both to set
deadlines and to enforce those deadlines by rejecting untimely filings,
that discretion is not absolute and the Court will evaluate ``on a
case-by-case basis whether the interests of accuracy and fairness
outweigh'' the Department's administrative burden and interest in
finality.\20\
---------------------------------------------------------------------------
\17\ See Grobest & I-Mei Industrial (Vietnam) Co., Ltd., v.
United States, 815 F. Supp. 2d 1342, 1367 (CIT 2012) (``Grobest'').
\18\ See id.
\19\ See Grobest, 815 F. Supp. 2d at 1366-1367.
\20\ See Grobest, 815 F. Supp. 2d at 1367.
---------------------------------------------------------------------------
In this case, the Department has considered Peak's untimely
requests for extension, and determined that Peak has not provided good
cause for submitting its extension requests in an untimely manner. As
noted by the Court in Grobest, the Department has the discretion to
``set and enforce deadlines.'' \21\ The Departments regulations provide
that the agency ``may, for good cause, extend any time limit
established by this part.'' \22\ Parties requesting an extension are
required to submit a written request ``before the time limit
specified'' by the Department, and must ``state the reasons for the
request.'' In its Supplemental Section A Extension Request Peak
explained that it was requesting an extension of the deadline for
filing its supplemental Section A response due to unexpected computer
failures and difficulties communicating with management who were away
on business.\23\ However, Peak provided no explanation as to why it was
unable to file the actual extension request in a timely manner prior to
the deadline for its questionnaire response, as required by section 19
CFR 351.302(c).\24\ This deficiency was also pointed out by Petitioners
in their objection to Peak's extension request: ``* * *the request
fails to explain in any manner why it was not filed prior to the
deadline.'' \25\ In Peak's Rebuttal to Petitioners' Objection, Peak
again failed to address this deficiency, merely reiterating that the
Department's regulations and long-standing policy allow it to extend
any deadline for good cause, explaining that the ``circumstances
surrounding the unanticipated delay in the preparation of the
Supplemental Questionnaire at issue were caused by unexpected computer
failures and the difficulties in communicating with the management
personnel who were traveling in remold areas for business.'' \26\ While
the Department may extend deadlines, it does so ``for good cause,'' in
accordance with 19 CFR 351.302(b). Because Peak did not provide any
explanation for why it did not submit its extension request in a timely
manner, the Department determined that Peak had not provided good cause
pursuant to 19 CFR 351.302(b) for the Department to extend
retroactively its deadline for the extension request and rejected
Peak's two untimely extension requests and its supplemental Section A
response.\27\
---------------------------------------------------------------------------
\21\ See Grobest, 815 F. Supp. 2d at 1365.
\22\ See 19 CFR 351.302(b).
\23\ See Peak's Rebuttal to Petitioners' Objection, at 2.
\24\ See id.
\25\ See Petitioners Objection to Untimely Extension Request, at
2.
\26\ See Peak's Rebuttal to Petitioners' Objection, at 2.
\27\ See Untimely Extension Request Rejection Letter, at 2.
---------------------------------------------------------------------------
The Department set deadlines in this proceeding after careful
consideration of the time and resources that were needed to complete a
review of Peak's sales during the POR. Peak's U.S. sales have been
found to be non-bona fide in two prior reviews,\28\ a determination
that requires careful consideration of the totality of circumstances,
including: (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; \29\ (6) as well as the business practices of the
importer and U.S. customers.\30\ The supplemental Section A
questionnaire that Peak failed to timely submit would have provided
information regarding Peak's reported quantity and value, its separate
rate status, structure and affiliations, sales process, accounting and
financial practices, and merchandising. This information has proven
vital to the Department's prior non-bona fide analyses. Moreover, the
Department requires a significant amount of time and effort to gather
the necessary information, consider the facts of the record, and
provide interested parties with an appropriate period for comments and
rebuttal comments. For example, in the ninth administrative review of
this proceeding the Department issued its initial questionnaire to Peak
in February 2011, and continued to request and receive supplemental
questionnaire responses until December 13, 2011, just 10 days before
the preliminary results were signed.\31\ In order to properly analyze
and consider submissions from Peak and Petitioners, and provide an
opportunity for interested parties to comment, the Department was
required to extend both its preliminary and final results.\32\ The
establishment of deadlines for submission of factual information in an
antidumping duty review is not arbitrary. Rather, deadlines are
specifically designed to allow a respondent sufficient time to prepare
responses to detailed requests for information, and to allow the
Department to analyze and verify that information, within the
statutorily-mandated timeframe for completing the review. The
Department recognizes that respondents may encounter difficulties in
meeting certain deadlines in the course of any segment; indeed, the
Department's regulations specifically address the requirements
governing requests for extensions of specific time limits (i.e., 19 CFR
351.302(c)). While the Department may extend deadlines when possible,
and where there is good cause, here Peak submitted no explanation for
why it was unable to submit its extension requests in a timely manner.
---------------------------------------------------------------------------
\28\ See Administrative Review of Honey from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review and Rescission of Review, In Part, 75 FR 24880, 24881 (May 6,
2010); Honey from the People's Republic of China: Final Rescission
of Antidumping Duty Administrative Review, 77 FR 34343, 34344 (June
11, 2012) (``PRC Honey AR9 Final'').
\29\ See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United
States, 366 F. Supp. 2d 1246, 1250 (CIT 2005) (``TTPC'').
\30\ See New Donghua, 374 F. Supp. 2d at 1343-44.
\31\ See Honey From the People's Republic of China: Preliminary
Rescission of the Administrative Review, 77 FR 79, 80 (January 3,
2012) (``PRC Honey AR9 Prelim'') (``While the Department continued
to receive submissions from both Petitioners and {Peak{time}
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'').
\32\ 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) (``The Department requires
more time to gather and analyze surrogate value information, and to
review questionnaire responses and issue supplemental
questionnaires.''); Honey From the People's Republic of China:
Extension of Time Limit for Final Results of the Antidumping Duty
Administrative Review, 77 FR 11489 (February 27, 2012) (``The
Department requires additional time to complete this review because
the Department must fully analyze and consider significant issues
regarding whether the respondent's sales were bona fide. Further,
the Department extended the due date for submission of the rebuttal
comments to the case briefs at the request of an interested
party.'').
---------------------------------------------------------------------------
As noted above, Peak, had previously requested an extension for its
Section C and D response before the applicable deadline, albeit very
close to that deadline, and the Department advised
[[Page 46702]]
Peak at that time that extension requests must be made well before the
applicable deadline.\33\ Accordingly, it was important for Peak to
provide the Department adequate notice that it required additional time
to submit the supplemental Section A questionnaire response in the
current administrative review. Rather than doing so, Peak submitted two
untimely extension requests, without providing any explanation or
``good cause'' within the meaning of section 351.302(b), for why it was
unable to submit an extension request in a timely manner. The
Department notes that Peak did so despite being cautioned on at least
two occasions that all extension requests must be submitted before the
deadline for the requested information. Peak's supplemental Section A
response was submitted eleven days after the original deadline, without
the Department having granted Peak's two untimely extension
requests.\34\ Therefore, we rejected Peak's supplemental Section A
response as untimely pursuant to 19 CFR 351.302(d).\35\ Furthermore,
the Department's decision to reject the submissions at issue is
consistent with the general practice of rejecting untimely filed
questionnaire responses.\36\ The Department establishes appropriate
deadlines to ensure that its ability to complete the proceeding is not
jeopardized. We note that the CIT has long recognized the need to
establish, and enforce, time limits for filing questionnaire responses,
the purpose of which is to aid the Department in the administration of
the dumping laws.\37\
---------------------------------------------------------------------------
\33\ See April 9 Extension Memo.
\34\ See Untimely Extension Request Rejection Letter at 1.
\35\ See id. at 2.
\36\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products From
Ukraine, 66 FR 50401 (October 3, 2001), and accompanying Issues and
Decision Memorandum at Comment 5; Final Determination of Sales at
Less Than Fair Value: Wooden Bedroom Furniture From the People's
Republic of China, 69 FR 67313 (November 17, 2004), and accompanying
Issues and Decision Memorandum at Comment 82.
\37\ See e.g. Nippon Steel Corp. v. United States, 118 F. Supp.
2d 1366, 1377 (CIT 2000); and Seattle Marine Fishing Supply, et al.
v. United States, 679 F. Supp. 1119, 1128 (CIT 1998) (it was not
unreasonable for the Department to refuse to accept untimely filed
responses, where ``the record displays the ITA followed statutory
procedure'' and the respondent ``was afforded its chance to respond
to the questionnaires, which it failed to do.'')
---------------------------------------------------------------------------
Accordingly, because the record lacks a complete Section A response
\38\ from Peak, which has contained information vital to our analyses
of this respondent in prior reviews, the Department finds that the
information necessary to calculate an accurate margin is not available
on the record of this review. Further, because we issued questions
regarding Peak's separate rate status \39\ to which Peak did not timely
respond, Peak did not establish its eligibility in this segment of the
proceeding for a separate rate. As a result, we preliminarily find Peak
to be part of the PRC-wide entity. Because the entity, which includes
Peak, did not cooperate to the best of its ability, the record lacks
the requisite data that is needed to reach a determination.
Accordingly, the Department finds that the necessary information to
calculate an accurate and reliable margin is not available on the
record of this proceeding. The Department finds that because Peak, as
part of the PRC-wide entity, failed to submit its response to the
Department's Supplemental Section A questionnaire, the PRC-wide entity
withheld the requested information, failed to provide the information
in a timely manner and in the form requested, and significantly impeded
this proceeding, pursuant to sections 776(a)(2)(A), (B), and (C) of the
Act. On this basis, the Department finds that it must rely on the facts
otherwise available to determine a margin for the PRC-wide entity in
accordance with section 776(a) of the Act.\40\
---------------------------------------------------------------------------
\38\ The supplemental questionnaire to which Peak failed to
respond requested explanations and clarifying information regarding
its quantity and value, separate rate status, structure and
affiliations, sales process, accounting and financial practices, and
merchandising. See Peak Supplemental Section A.
\39\ See id., at 4-6.
\40\ See Non-Malleable Cast Iron Pipe Fittings from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 71 FR 69546 (December 1, 2006), and accompanying Issues and
Decision Memorandum at Comment 1.
---------------------------------------------------------------------------
Adverse Facts Available
Section 776(b) of the Act states that if the Department ``finds
that an interested party has failed to cooperate by not acting to the
best of its ability to comply with a request for information from the
administering authority * * * {the Department{time} * * * may use an
inference that is adverse to the interests of the party in selecting
from among the facts otherwise available.''\41\ Adverse inferences are
appropriate to ``ensure that the party does not obtain a more favorable
result by failing to cooperate than if it had cooperated fully.''\42\
In selecting an adverse inference, the Department may rely on
information derived from the petition, the final determination in the
investigation, any previous review, or any other information placed on
the record.\43\
---------------------------------------------------------------------------
\41\ See also Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No., 103-316 at 870
(1994) (``SAA'').
\42\ See id.
\43\ See section 776(b) of the Act.
---------------------------------------------------------------------------
The Department determines that the PRC-wide entity, which includes
Peak due to its failure to respond to all of the Department's
questionnaires, has failed to cooperate to the best of its ability in
providing the requested information. Accordingly, pursuant to sections
776(a)(2)(A), (B), and (C) and section 776(b) of the Act, we find it
appropriate to apply a margin to the PRC-wide entity based entirely on
the facts available, and to apply an adverse inference.\44\ By doing
so, we ensure that the PRC-wide entity, which includes Peak, will not
obtain a more favorable result by failing to cooperate than had it
cooperated fully in this review.
---------------------------------------------------------------------------
\44\ See Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Preliminary Results of the First Administrative
Review, 72 FR 10689, 10692 (March 9, 2007) (decision to apply total
AFA to the NME-wide entity), unchanged in Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam: Final Results of the
First Administrative Review and First New Shipper Review, 72 FR
52052 (September 12, 2007).
---------------------------------------------------------------------------
The Department's practice is to select an AFA rate that is
sufficiently adverse as to effectuate the purpose of the facts
available rule to induce respondents to provide the Department with
complete and accurate information in a timely manner and that ensures
that the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.\45\ Specifically, the
Department's practice in reviews, when selecting a rate as total AFA,
is to use the highest rate on the record of the proceeding which, to
the extent practicable, can be corroborated.\46\ The CIT and the U.S.
Court of Appeals for the Federal Circuit (``Federal Circuit'') have
affirmed decisions to select the highest margin from any prior segment
of the proceeding as the AFA rate on numerous occasions.\47\ Therefore,
we
[[Page 46703]]
are assigning the PRC-wide entity, which includes Peak, a rate of $2.63
per kilogram, which is the highest rate on the record of this
proceeding and which was the rate assigned to the PRC-wide entity in
the seventh administrative review of this proceeding, the most recent
review that was not rescinded.\48\
---------------------------------------------------------------------------
\45\ See Notice of Final Determination of Sales at Less than
Fair Value: Static Random Access Memory Semiconductors From Taiwan,
63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the
People's Republic of China: Final Results and Partial Rescission of
the Seventh Administrative Review; Final Results of the Eleventh New
Shipper Review, 70 FR 69937, 69939 (November 18, 2005), and SAA at
870.
\46\ See Glycine from the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review, 74 FR
15930, 15934 (April 8, 2009), unchanged in Glycine From the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu
Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT
August 10, 2009) (''Commerce may, of course, begin its total AFA
selection process by defaulting to the highest rate in any segment
of the proceeding, but that selection must then be corroborated, to
the extent practicable.'').
\47\ See, e.g., KYD, Inc. v United States, 607 F.3d 760, 766-767
(CAFC 2010) (``KYD''); see also NSK Ltd. v. United States, 346 F.
Supp. 2d 1312, 1335 (CIT 2004) (affirming a 73.55 percent total AFA
rate, the highest available dumping margin calculated for a
different respondent in the investigation).
\48\ See Administrative Review of Honey from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review and Rescission of Review, In Part, 75 FR 24880, 24882 (May 6,
2010).
---------------------------------------------------------------------------
Corroboration
Section 776(c) of the Act requires the Department to corroborate,
to the extent practicable, secondary information used as facts
available. To be considered corroborated, the Department must find the
information has probative value, meaning that the information must be
both reliable and relevant.\49\ Secondary information is
``{i{time} nformation derived from the petition that gave rise to the
investigation or review, the final determination concerning the subject
merchandise, or any previous review under section 751 {of the
Act{time} concerning the subject merchandise.''\50\ Unlike other types
of information, such as input costs or selling expenses, there are no
independent sources for calculated margins. Thus, in an administrative
review, if the Department chooses, as AFA, a calculated dumping margin
from a prior segment of the proceeding, it is not necessary to question
the reliability of the margin.\51\
---------------------------------------------------------------------------
\49\ See SAA at 870; Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished From Japan, and Tapered Roller Bearings Four
Inches or Less in Outside Diameter and Components Thereof, From
Japan; Preliminary Results of Antidumping Duty Administrative
Reviews and Partial Termination of Administrative Reviews, 61 FR
57391, 57392 (November 6, 1996) unchanged in Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished From Japan, and Tapered
Roller Bearings Four Inches or Less in Outside Diameter and
Components Thereof, From Japan; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825 (March
13, 1997).
\50\ See SAA, H.R. Doc. No. 103-316 at 870 (1994) and 19 CFR
351.308 (d).
\51\ See Heavy Forged Hand Tools, Finished or Unfinished, With
or Without Handles, From the People's Republic of China: Final
Results of Antidumping Duty Administrative Reviews, Final Partial
Rescission of Antidumping Duty Administrative Reviews, and
Determination Not To Revoke in Part, 69 FR 55581 (September 15,
2004), and accompanying Issues and Decision Memorandum at Comment
18.
---------------------------------------------------------------------------
The Department considers the AFA rate calculated for the current
review as both reliable and relevant. On the issue of reliability, the
adverse rate selected was calculated for another respondent, Anhui
Native Produce Import & Export Corporation, during the sixth
administrative review.\52\ No information has been presented in the
current review that calls into question the reliability of this
information. With respect to the relevance, the Department will
consider information reasonably at its disposal to determine whether a
margin continues to have relevance. Where circumstances indicate that
the selected margin is not appropriate as AFA, the Department will
disregard the margin and determine an appropriate margin. For example,
in Fresh Cut Flowers from Mexico, the Department disregarded the
highest margin in that case as best information available (the
predecessor to facts available) because the margin was based on another
company's uncharacteristic business expense resulting in an unusually
high margin.\53\ This rate was assigned to the PRC-wide entity in a
prior review which demonstrates its relevance to the PRC-wide entity.
Furthermore, the selected AFA margin is based upon the calculated rate
for another respondent in sixth administrative review of this
proceeding, and thus reflects the commercial reality of a competitor in
the same industry.\54\ There is no information on the record to
indicate that this rate is not relevant, as was the case in Fresh Cut
Flowers from Mexico. For all these reasons, the Department finds that
this rate is also relevant.
---------------------------------------------------------------------------
\52\ See Honey From the People's Republic of China: Final
Results and Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 796 (January 8, 2009) (``PRC Honey AR6'').
\53\ See Fresh Cut Flowers from Mexico; Final Results of
Antidumping Administrative Review, 61 FR 6812, 6814 (February 22,
1996) (``Fresh Cut Flowers from Mexico'') cited in Certain Kitchen
Appliance Shelving and Racks from the People's Republic of China:
Final Results and Partial Rescission of First Antidumping Duty
Administrative Review, 77 FR 21734, 21737 (April 11, 2012).
\54\ See PRC Honey AR6.
---------------------------------------------------------------------------
Given that the PRC-wide entity, which includes Peak, failed to
cooperate to the best of its ability in this administrative review, it
is appropriate to select an AFA rate that serves as an adequate
deterrent in order to induce cooperation in the proceeding. The Federal
Circuit held in KYD, that selecting the highest prior margin reflects
``a common sense inference that the highest prior margin is the most
probative evidence of current margins because, if it were not so, the
importer knowing of the rule, would have produced current information
showing the margin to be less.''\55\ Here, Peak did not produce current
information in a timely manner, as noted above. On this basis, we find
that selecting the highest calculated rate of this proceeding is
sufficiently relevant to the commercial reality for the PRC-wide
entity, which includes Peak. Furthermore, there is no information on
the record of this review that demonstrates that this rate is
uncharacteristic of the industry, or otherwise inappropriate for use as
AFA. Based upon the foregoing, we determine this rate to be relevant.
---------------------------------------------------------------------------
\55\ See KYD, Inc. v. United States, 607 F.3d 760, 766 (Fed.
Cir. 2010) citing Rhone Poulenc, Inc. v. United States, 899 F.2d
1185, 1190 (CAFC 1990).
---------------------------------------------------------------------------
As the $2.63 per kilogram AFA rate is both reliable and relevant,
we determine that it has probative value and is corroborated to the
extent practicable, in accordance with section 776(c) of the Act.
Therefore, we have assigned this rate as AFA to exports of the subject
merchandise by the PRC-wide entity, which includes Peak.
Preliminary Results of Review
We preliminarily determine that the following antidumping duty
margin exists:
------------------------------------------------------------------------
Margin
(dollars
Manufacturer/Exporter per
kilogram)
------------------------------------------------------------------------
PRC-wide entity (which includes Dongtai Peak Honey Industry $2.63
Co., Ltd.).................................................
------------------------------------------------------------------------
Briefs and Public Hearing
Interested parties are invited to comment on the preliminary
results and may submit case briefs and/or written comments within 30
days of the date of publication of this notice, pursuant to 19 CFR
351.309(c)(1)(ii). Rebuttal briefs, limited to issues raised in the
case briefs, will be due five days later, pursuant to 19 CFR
351.309(d). Parties who submit case or rebuttal briefs in this
proceeding are requested to submit with each argument (1) a statement
of the issue and (2) a brief summary of the argument. Parties are
requested to provide a summary of the arguments not to exceed five
pages and a table of statutes, regulations, and cases cited, in
accordance with 19 CFR 351.309(c)(2).
Pursuant to 19 CFR 351.310(c), interested parties who wish to
request a hearing, or to participate if one is requested, must submit a
written Federal Register to the Assistant Secretary for Import
Administration, U.S. Department of Commerce, pursuant to the
Department's e-filing regulations located at https://iaaccess.trade.gov/help/IA%20ACCESS%20User%20Guide.pdf. Requests should
contain: (1) The party's name, address and telephone number; (2) the
number of participants; and (3) a list of issues to be discussed.
Issues raised in the hearing
[[Page 46704]]
will be limited to those raised in the respective case briefs.
The Department intends to 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. The Department intends to issue assessment
instructions to CBP 15 days after the publication date of the final
results of this review. In accordance with 19 CFR 351.212(b)(1), we
will calculate importer- (or customer-) specific assessment rates for
the merchandise subject to this review. Where the respondent has
reported reliable entered values, we will calculate importer- (or
customer-) specific ad valorem rates by aggregating the dumping margins
calculated for all U.S. sales to each importer (or customer) and
dividing this amount by the total entered value of the sales to each
importer (or customer). Where an importer- (or customer-) specific ad
valorem rate is greater than de minimis, we will apply the assessment
rate to the entered value of the importers'/customers' entries during
the POR, pursuant to 19 CFR 351.212(b)(1).
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) For the exporters
listed above, the cash deposit rate will be the rate established in the
final results of this review (except, if the rate is zero or de
minimis, i.e., less than 0.5 percent, no cash deposit rate will be
required for that company); (2) for previously investigated or reviewed
PRC and non-PRC exporters not listed above that have separate rates,
the cash deposit rate will continue to be the exporter-specific rate
published for the most recently completed period; (3) for all PRC
exporters of subject merchandise that have not been found to be
entitled to a separate rate, the cash deposit rate will be the PRC-wide
rate of $2.63 per kilogram; and, (4) for all non-PRC exporters of
subject merchandise which have not received their own rate, the cash
deposit rate will be the rate applicable to the PRC exporter(s) that
supplied that non-PRC exporter. These deposit requirements, when
imposed, shall remain in effect until further notice.
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 this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
These preliminary results are 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: July 30, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-19151 Filed 8-3-12; 8:45 am]
BILLING CODE 3510-DS-P
