[Federal Register Volume 66, Number 193 (Thursday, October 4, 2001)]
[Notices]
[Pages 50611-50613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24922]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-357-812]


Notice of Final Determination of Sales at Less Than Fair Value; 
Honey From Argentina

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of final determination of sales at less than fair value.

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EFFECTIVE DATE: October 4, 2001.

FOR FURTHER INFORMATION CONTACT: Melissa Blackledge, Charles Rast, or 
Donna Kinsella at (202) 482-3518, (202) 482-1324, or (202) 482-0194, 
respectively; Antidumping and Countervailing Duty Enforcement Group 
III, Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230.

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act. In addition, unless otherwise indicated, 
all citations to the Department of Commerce's (the Department's) 
regulations refer to the regulations codified at 19 CFR part 351 
(2000).

Final Determinations

    We determine that honey from Argentina is being sold, or is likely 
to be sold, in the United States at less than fair value (LTFV), as 
provided in section 735 of the Act. The estimated margins of sales at 
LTFV are shown in the ``Suspension of Liquidation'' section of this 
notice.

Case History

    We published in the Federal Register the preliminary determination 
in this investigation on May 11, 2001. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Honey from Argentina, 
66 FR 24108 (May 11, 2000) (Preliminary Determination). Since the 
publication of the Preliminary Determination the following events have 
occurred.
    On May 11, 2001, Asociacion Cooperativas Argentinas (ACA), one of 
the Argentine respondents, requested that the Department postpone its 
final determination to the fullest extent permitted by the statute and 
the Department's regulations. On May 29, 2001, the Department postponed 
the final determination until no later than 135 days after publication 
of the preliminary determination in the Federal Register. See 66 FR 
30413 (June 6, 2001).
    On May 11, 2001, one of the Argentine respondents, Radix S.R.L. 
(Radix), which withdrew from participation in the investigation on May 
1, 2001, requested that the Department allow it to re-enter the 
investigation. In a letter of May 16, 2001, the petitioners objected to 
the request by Radix. On June 12, 2001, the Department notified Radix 
that it could re-enter the ongoing investigation.
    Requests for a public hearing were received by the Department from 
petitioners on June 7, 2001, and from ACA on June 4, 2001.
    On June 11, 2001 and June 18, 2001, respondents ACA and Radix 
submitted, respectively, additional factual information regarding the 
cost of production of honey in Argentina. On June 20, 2001, petitioners 
submitted a letter to the Department requesting that the cost 
information submitted by Radix be rejected for untimeliness. On June 
21, 2001, petitioners submitted rebuttal factual information in 
response to the cost of production information submitted by ACA.
    The Department verified sections A through C of ACA's responses 
from June 18 through June 22, 2001, at ACA's headquarters in Buenos 
Aires, Argentina. See Memorandum To The File; ``Verification of ACA's 
Questionnaire Responses'', July 27, 2001. The Department also verified 
sections A through C of responses received from Radix from June 25 
through June 29, 2001, at Radix's headquarters in Buenos Aires, 
Argentina. See Memorandum To The File; ``Verification of Radix's 
Questionnaire Responses'', July 26, 2001. Public versions of these, and 
all other Departmental memoranda referred to herein, are on file in the 
Central Records Unit, room B-099 of the main Commerce building.
    On August 6, 2001, ACA, Radix, and petitioners filed case briefs. 
Petitioners submitted objections on August 9, 2001, to ACA's 
proprietary treatment of certain information and submission of new 
factual information contained in ACA's brief. We received rebuttal 
briefs from all parties on August 13, 2001. On August 24, 2001, ACA re-
submitted its case brief.
    The Department issued a preliminary margin analysis for Radix on 
August 15, 2001. Comments from petitioners and Radix were received on 
August 22, 2001. Rebuttal comments were received on August 27, 2001. 
The public hearing in this proceeding was held on August 28, 2001. On 
September 4, 2001, ACA and Radix submitted information requested by the 
Department at the hearing. On September 18, 2001, ACA submitted 
additional information to clarify their September 4, 2001 response. On 
September 10, 2001, petitioners submitted comments on Radix's and ACA's 
responses to the Department's August 28, 2001 request for additional 
information.
    On August 24, 2001, a proposed suspension agreement was initialed 
by the authorized legal representative of ACA, Radix, Con Agra 
Argentina S.A., Honey Max S.A., Nexco S.A., CIA Europea Americana S.A., 
Foodway S.A., CIA Inversora Platense S.A., Miel Ar, Trans Honey S.A., 
Miel Gibbons, Times S.A., and a representative of the U.S. Department 
of Commerce. Comments from interested parties were submitted on 
September 14, 2001. This proposed agreement has not been accepted.

[[Page 50612]]

    Although the deadline for this determination was originally 
September 24, 2001, in light of the events of September 11, 2001, and 
the subsequent closure of the Federal Government for reasons of 
security, the time frame for issuing this determination has been 
extended by two days.

Period of Investigation

    The period of investigation (POI) is July 1, 1999 through June 30, 
2000.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties in 
this investigation are addressed in the ``Issues and Decision 
Memorandum'' (Decision Memorandum) from Joseph A. Spetrini, Deputy 
Assistant Secretary, Import Administration, to Faryar Shirzad, 
Assistant Secretary for Import Administration, dated September 24, 
2001, which is hereby adopted by this notice. A list of the issues 
which parties have raised and to which we have responded, all of which 
are in the Decision Memorandum, is attached to this notice as an 
Appendix. Parties can find a complete discussion of all issues raised 
in this review and the corresponding recommendations in this public 
memorandum which is on file in B-099.
    In addition, a complete version of the Decision Memorandum can be 
accessed directly on the World Wide Web at ia.ita.doc.gov/frn/frnhome. 
The paper copy and electronic version of the Decision Memorandum are 
identical in content.

Scope of Investigation

    For purposes of these investigations, the products covered 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 these investigations is currently 
classifiable under subheadings 0409.00.00, 1702.90, and 2106.90.99 of 
the Harmonized Tariff Schedule of the United States (``HTSUS''). 
Although the HTSUS subheadings are provided for convenience and U.S. 
Customs Service (``U.S. Customs'') purposes, the Department's written 
description of the merchandise under investigation is dispositive.

Facts Available

    Section 776(a) of the Act provides that ``if any interested party 
or any other person--(A) withholds information that has been requested 
by the administering authority, (B) fails to provide such information 
by the deadlines for the submission of the information or in the form 
and manner requested, subject to subsections (c)(1) and (e) of section 
782, (C) significantly impedes a proceeding under this title, or (D) 
provides such information but the information cannot be verified as 
provided in section 782(i), the administering authority and the 
Commission shall, subject to section 782(d), use the facts otherwise 
available in reaching the applicable determination under this title.'' 
The statute also requires that certain conditions be met before the 
Department may resort to the facts otherwise available. Where the 
Department determines that a response to a request for information does 
not comply with the request, section 782(d) of the Act provides that 
the Department will so inform the party submitting the response and 
will, to the extent practicable, provide that party the opportunity to 
remedy or explain the deficiency. If the party fails to remedy the 
deficiency within the applicable time limits, the Department may, 
subject to section 782(e) of the Act, disregard all or part of the 
original and subsequent responses, as appropriate. Briefly, section 
782(e) of the Act provides that the Department ``shall not decline to 
consider information that is submitted by an interested party and is 
necessary to the determination but does not meet all the applicable 
requirements established by the administering authority'' if the 
information is timely, can be verified, is not so incomplete that it 
cannot be used, and if the interested party acted to the best of its 
ability in providing the information. Where all of these conditions are 
met, and the Department can use the information without undue 
difficulties, the statute requires it to do so.
    As noted in the Preliminary Determination, ConAgra failed to 
respond to the Department's December 19, 2000, request for information. 
See 66 FR 24110 (June 6, 2001). Nor has ConAgra participated in the 
remainder of the investigation. Therefore, in this final determination, 
the Department will resort to the use of facts available for this 
respondent, in accordance with section 776(a)(2)(A) of the Act. 
Further, as we stated in the Preliminary Determination, section 782(d) 
and (e) are inapplicable in this instance because ConAgra failed to 
provide the requested information. Id. Moreover, we have determined 
that ConAgra's failure to respond to any portions of the Department's 
December 19, 2000, questionnaire demonstrates that the company has not 
cooperated to the best of its ability. Therefore, pursuant to section 
776(b) of the Act, we will apply an adverse inference in selecting a 
margin from among facts otherwise available. See Memorandum from Donna 
Kinsella to Richard O. Weible, Honey from Argentina: Final 
Determination of Sales at Less Than Fair Value--The Use of Facts 
Available for ConAgra Argentina, S.A., and the Corroboration of 
Secondary Information, dated May 4, 2001 (ConAgra Facts Available 
Memorandum).
    For a further discussion of our application of facts available, see 
the ``Facts Available'' section of the Decision Memorandum, which is on 
file in B-099 and available on the Web at ia.ita.doc.gov/frn/frnhome.

Changes Since the Preliminary Determination

    Based on our analysis of comments received and findings at 
verification, we have made certain changes in the margin calculations. 
We have also corrected certain programming and clerical errors in our 
preliminary results, where applicable. Any allegations of programming 
or clerical errors are discussed in the relevant sections of the 
``Decision Memorandum,'' accessible in B-099 and on the Web at 
ia.ita.doc.gov/frn/.

Suspension of Liquidation

    In accordance with section 735(c)(1)(B)(ii) of the Act, we are 
directing the U.S. Customs Service (Customs) to suspend liquidation of 
all imports of subject merchandise that are entered, or withdrawn from 
warehouse, for consumption on or after May 11, 2001, the date of 
publication of the preliminary determination in the Federal Register.
    Section 772(c)(1)(C) of the Act states that the price used to 
establish export price and constructed export price shall be increased 
by the amount of any countervailing duty imposed on the subject 
merchandise under subtitle A to offset an export subsidy and reduced by 
the amount, if included in such price, of any export duty, or other 
charge imposed by the exporting country on the exportation of the 
subject merchandise to the United States, other than an export tax, 
duty or other charge described in section 771(6)(C). Since antidumping 
duties cannot be assessed on the portion of the margin attributed to 
export subsidies there is no reason to

[[Page 50613]]

require a cash deposit or bond for that amount. See e.g., Notice of 
Amended Final Determination of Sales at Less Than Fair Value; 
Structural Steel Beams from South Korea, 65 FR 50502 (Aug. 18, 2001). 
The Department has determined in its Final Affirmative Countervailing 
Duty Determination: Honey From Argentina that the product under 
investigation benefitted from export subsidies. Normally, where the 
product under investigation is also subject to a concurrent 
countervailing duty investigation, we instruct Customs to require a 
cash deposit or posting of a bond equal to the weighted-average amount 
by which the NV exceeds the EP, as indicated below, minus the amount 
determined to constitute an export subsidy codified at 19 U.S.C. 
736(a)(1) (2000). See e.g., Notice of Antidumping Duty Order: Stainless 
Steel Wire Rod From Italy, 63 FR 49327 (September 15, 1998). 
Accordingly, for cash deposit purposes we will subtract from ACA's and 
Radix's' cash deposit rate that portion of the rate attributable to the 
export subsidies found in the countervailing duty investigation 
involving ACA and Radix. We will make the same adjustment to the ``All 
Others'' cash deposit rate by subtracting the rate attributable to 
export subsidies found in the countervailing duty investigation of 
honey from Argentina.
    We will instruct Customs to require a cash deposit or the posting 
of a bond for each entry equal to the weighted-average amount by which 
the NV exceeds the EP, adjusted for the export subsidy rate. These 
suspension-of-liquidation instructions will remain in effect until 
further notice. The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                             Weighted-
                  Exporter/manufacturer                   average margin
                                                             (percent)
------------------------------------------------------------------------
Asociacion Cooperativas Argentinas (ACA)................           38.71
Radix S.R.L. (Radix)....................................           32.56
ConAgra Argentina.......................................           60.67
All Others..............................................           36.59
------------------------------------------------------------------------

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our determination. As our final 
determination is affirmative, the ITC will determine, within 45 days, 
whether these imports are causing material injury, or threat of 
material injury, to an industry in the United States. If the ITC 
determines that material injury or threat of injury does not exist, the 
proceeding will be terminated and all securities posted will be 
refunded or canceled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping order directing Customs 
officials to assess antidumping duties on all imports of the subject 
merchandise entered, or withdrawn from warehouse for consumption on or 
after the effective date of the suspension of liquidation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: September 26, 2001.
Faryar Shirzad,
Assistant Secretary for Import Administration.

Appendix I--Issues in Decision Memo Comments and Responses

General

    1. Adverse Facts Available
    2. Cost of Production/Constructed Value Profit
    3. Middlemen Reseller Expenses

Radix

    4. Facts Available
    5. German Testing Expenses
    6. General and Administrative and Indirect Selling Expenses
    7. Sales Reconciliation
    8. Reembolso Reimbursements
    9. Interest Expense
    10. Inventory Carrying Costs

ACA

    11. Indirect Selling Expenses
    12. General and Administrative Expenses
    13. Interest Expenses
    14. German Testing Expenses
    15. German Warranty Expenses
    16. International Freight Expenses
    17. Differences in Physical Characteristics in Merchandise
    18. Level of Trade

[FR Doc. 01-24922 Filed 10-3-01; 8:45 am]
BILLING CODE 3510-DS-P