[Federal Register Volume 66, Number 237 (Monday, December 10, 2001)]
[Notices]
[Pages 63670-63672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30468]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-863]


Notice of Amended Final Determination of Sales at Less Than Fair 
Value and Antidumping Duty Order; Honey From the People's Republic of 
China

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

ACTION: Notice of antidumping duty order and amendment to final 
determination.

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EFFECTIVE DATE: December 10, 2001.

FOR FURTHER INFORMATION CONTACT: Angelica Mendoza, Charles Rast, or 
Donna Kinsella at (202) 482-3019, (202) 482-1324, or (202) 482-0194, 
respectively; Antidumping and Countervailing Duty Enforcement Group 
III, Office Eight, 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 (Department) regulations 
are to the regulations codified at 19 CFR part 351 (April 2000).

[[Page 63671]]

Scope of Order

    For purposes of this investigation, 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 this investigation is currently 
classifiable under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 
of the harmonized tariff schedule of the United States (HTSUS). 
Although the HTSUS subheadings are provided for convenience and U.S. 
Customs Service (Customs) purposes, the Department's written 
description of the merchandise under investigation is dispositive.

Amendment to the Final Determination

    On September 26, 2001, the Department determined that honey from 
the People's Republic of China (PRC) is being, or is likely to be, sold 
in the United States at less than fair value (LTFV), as provided in 
section 735(a) of the Tariff Act. See Notice of Final Determination of 
Sales at Less Than Fair Value; Honey from the People's Republic of 
China, 66 FR 50608 (October 4, 2001). On October 10, 2001, respondents 
Zhejiang Native Produce and Animal By-Products Import and Export 
Corporation (Zhejiang), Inner Mongolia Autonomous Region Native Produce 
and Animal By-Products Import and Export Corporation (Inner Mongolia), 
and Kunshan Foreign Trade Co., Ltd. (Kunshan), filed timely allegations 
that the Department made ministerial errors in the final determination. 
On October 15, 2001, petitioners filed timely comments in rebuttal to 
respondents' ministerial error allegations.
    Section 735(e) of the Act defines a ``ministerial error'' to 
include ``errors in addition, subtraction, or other arithmetic 
function, clerical errors resulting from inaccurate copying, 
duplication, or the like, and any other type of unintentional error 
which the administering authority considers ministerial.'' See also 
section 351.224(f) of the Department's regulations.
    Comment 1: Zhejiang, Inner Mongolia, and Kunshan argue that the 
Department erred in its calculation of total raw honey costs by 
including the freight expenses associated with raw honey purchased 
during the period of investigation (POI). They argue that the 
Department should have included only the freight expenses associated 
with raw honey consumed in the production of processed honey during the 
POI.
    Petitioners argue that, contrary to respondents' claims, the 
Department did in fact calculate raw honey expenses based on the 
freight costs associated with raw honey consumed in the production of 
processed honey during the POI.
    Department's Position: We disagree with Zhejiang, Inner Mongolia, 
and Kunshan that our method of calculating inland freight for raw honey 
constitutes a ministerial error. Our computations for each respondent 
are shown in the final determination analysis memoranda. See Memorandum 
to the File from Fred Baker through Donna Kinsella, dated September 26, 
2001 at Appendix V and Memoranda to the File from Angelica Mendoza 
through Donna Kinsella, dated September 26, 2001 at Appendix V. These 
memoranda show that we used both raw honey purchase volumes and raw 
honey consumption volumes in calculating the total raw honey inland 
freight costs. We used the volumes of raw honey consumed (column E) to 
represent the quantity to which freight costs should be attributed. We 
used the volumes of raw honey purchased (column C) as the basis for 
allocating a percentage of the total cost of inland freight to each 
individual supplier of raw honey. The volumes purchased from each 
supplier during the POI were the only supplier-specific volumes on the 
record, and were identified in the analysis memorandum for each company 
as the quantities we intended to use for allocation purposes.
    Comment 2: Kunshan argues that the Department used an incorrect 
surrogate labor rate to calculate direct labor, indirect labor, and 
packing labor.
    Department's Position: We agree. In the final determination, the 
Department calculated Kunshan's direct labor, indirect labor, and 
packing labor, using a standard country-wide rate from the Department's 
website, but from a country other than the PRC. We have corrected this 
error in this amended final determination.
    We are amending the final determination of the antidumping duty 
investigation of honey from the PRC to reflect the correction of a 
ministerial error with respect to Kunshan. As a result of this 
correction the margin has also changed for the four cooperative 
respondents who were not selected as mandatory respondents but who were 
given separate rates. Those four respondents are High Hope, Shanghai 
Eswell, Anhui, and Henan. The revised final weighted-average dumping 
margins are shown below.

Antidumping Duty Order

    On November 19, 2001, the U.S. International Trade Commission (the 
ITC) notified the Department of its final determination, pursuant to 
section 735(b)(1)(A)(i) of the Act, that an industry in the United 
States is materially injured by reason of LTFV imports of subject 
merchandise from the PRC. In addition, the ITC made an affirmative 
determination that critical circumstances exist with respect to subject 
imports from the PRC for which the Department made affirmative critical 
circumstances determinations. In rendering its critical circumstances 
determination, we note that three ITC Commissioners found that critical 
circumstances exist with regard to such merchandise, and three 
Commissioners found that critical circumstances do not exist with 
regard to imports of subject merchandise from the PRC. Section 771(11) 
of the Act provides that if the Commissioners voting on a determination 
``are evenly divided as to whether the determination should be 
affirmative or negative, the ITC shall be deemed to have made an 
affirmative determination.'' We consider that the tie-vote provision in 
section 771(11) applies to critical circumstances determinations.
    We note that critical circumstances decisions are referred to as 
both ``determinations'' and ``findings'' in the statute. Moreover, 
while the legislative history will sometimes refer to the ITC's 
critical circumstances decisions as ``findings'' (see, e.g., H.R. Rep. 
No. 96-317, at 69 (1979), these decisions are more often identified as 
``determinations.'' See, e.g., S. Rep. No. 96-249, at 74 (1979); H.R. 
Rep. No. 103-826 (Part 1), at 50 (1994). Since the terms ``findings'' 
and ``determinations'' are used interchangeably in the statute and 
legislative history, the use of one or the other does not preclude the 
application of section 771(11) to the ITC's consideration of the 
critical circumstances issue.
    Congress promulgated the critical circumstances provision in order 
``to provide prompt relief to domestic industries suffering from large 
volumes of, or a surge over a short period of, imports and to deter 
exporters whose merchandise is subject to an investigation from 
circumventing the intent of the law by increasing their exports to the 
United States during the period between initiation of an investigation 
and a preliminary determination by the [Department].'' H.R. Rep. 96-
317, at 63 (1979). In

[[Page 63672]]

amending the critical circumstances provisions in 1988, Congress 
developed ``an improved critical circumstances procedure [that] will 
significantly strengthen antidumping and countervailing duty procedures 
by revitalizing a provision that has up to now been ineffective.'' H.R. 
Rep. No. 100-576, at 611 (1988). Considering this legislative history, 
we conclude that Congress did not intend to limit the availability of 
retroactive relief in cases such as this one to only those instances 
where two-thirds of the ITC votes to grant such relief. Moreover, as 
noted above, the ITC itself explicitly stated in its final injury 
determination that it made ``an affirmative determination that critical 
circumstances exist with respect to subject imports from China for 
which Commerce made affirmative critical circumstances 
determinations.'' See Honey from Argentina and China, Inv. Nos. 701-TA-
402 and 731-TA-892-893 (Final), USITC Pub., 3470 (November 19, 2001).
    Therefore, for all the reasons discussed above, we consider the ITC 
to have made an affirmative critical circumstances determination. The 
Department's finding in this regard is consistent with the Department's 
treatment of this issue in previous critical circumstances cases 
involving tie votes at the ITC. See Notice of Amendment of Final 
Determination of Sales at Less Than Fair Value and Antidumping Duty 
Order: Certain Preserved Mushrooms from the PRC, 64 FR 8308 (February 
19, 1999) and Notice of Antidumping Order: Coumarin from the People's 
Republic of China, 60 FR 7751 (February 9, 1995).
    In accordance with section 736(a)(1) of the Act, the Department 
will direct Customs to assess, upon further advice by the Department, 
antidumping duties equal to the amount by which the normal value of the 
subject merchandise exceeds the U.S. price of the subject merchandise 
for all relevant entries of honey from the PRC. These antidumping 
duties will be assessed on all unliquidated entries of honey from the 
PRC entered, or withdrawn from warehouse, for consumption on or after 
May 11, 2001, the date on which the Department published its notice of 
preliminary determination for this investigation in the Federal 
Register, except for subject merchandise exported by Kunshan, High 
Hope, Zhejiang, or other companies not specifically named below. For 
merchandise exported by Kunshan, High Hope, Zhejiang, or by other 
companies not specifically named below, we are directing the Customs 
Service to assess antidumping duties on all unliquidated entries of the 
subject merchandise that are entered, or withdrawn from warehouse, for 
consumption on or after February 10, 2001, the date 90 days prior to 
the date of publication of the preliminary determination in the Federal 
Register (see Notice of Preliminary Determination of Sales at Less Than 
Fair Value; Honey from the PRC, 66 FR 24101, (May 11, 2001)), in 
accordance with the critical circumstances finding in the final 
determination.
    On or after the date of publication of this notice in the Federal 
Register, Customs must require, at the same time as importers would 
normally deposit estimated duties on this merchandise, a cash deposit 
equal to the estimated weighted-average antidumping duty margins noted 
below:

------------------------------------------------------------------------
                                         Margin           Critical
        Exporter/Manufacture           (percent)       circumstances
------------------------------------------------------------------------
Inner Mongolia......................        57.13  No.
Kunshan.............................        49.60  Yes.
Zhejiang............................        25.88  Yes.
High Hope...........................        45.46  Yes.
Shanghai Eswell.....................        45.46  No.
Anhui...............................        45.46  No.
Henan...............................        45.46  No.
PRC-wide Entity.....................       183.80  Yes.
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    The ``PRC-wide'' rate applies to all exporters in the PRC of 
subject merchandise not specifically listed above.
    In accordance with section 735(c)(1)(B) of the Act, we are 
directing the United States Customs Service to continue suspending 
liquidation of all imports of the subject merchandise from the PRC. 
Customs shall require a cash deposit or the posting of a bond equal to 
the weighted-average amount by which normal value exceeds the export 
price as indicated in the chart above. These suspension-of-liquidation 
instructions will remain in effect until further notice.
    This notice constitutes the antidumping duty order with respect to 
honey from the PRC, pursuant to section 736(a) of the Act. Interested 
parties may contact the Department's Central Records Unit, room B-099 
of the main Commerce building, for copies of an updated list of the 
antidumping duty orders currently in effect.
    This determination and order are issued and published in accordance 
with sections 735(d), 736(a), and 777(i)(1) of the Act.

    Dated: November 28, 2001.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 01-30468 Filed 12-7-01; 8:45 am]
BILLING CODE 3510-DS-P