[Federal Register Volume 77, Number 1 (Tuesday, January 3, 2012)]
[Notices]
[Pages 79-82]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-33669]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-863]


Honey From the People's Republic of China: Preliminary Rescission 
of the Administrative Review

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

SUMMARY: The Department of Commerce (``Department'') is conducting the 
administrative review of the antidumping duty order on honey from the 
People's Republic of China (``PRC'') for the period of review (``POR'') 
December 1, 2009, to November 30, 2010. As discussed below, we have 
preliminarily determined to rescind this administrative review because 
we have found the sales made by Dongtai Peak Honey Industry Co., Ltd. 
(``Dongtai Peak'') that entered during the POR were not bona fide.

[[Page 80]]


DATES: Effective Date: January 3, 2012.

FOR FURTHER INFORMATION CONTACT: Catherine Bertrand, telephone: (202) 
482-3207, or Josh Startup, telephone: (202) 482-5260; AD/CVD 
Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230.

Background

    The Department received timely requests from Petitioners \1\ and 
Dongtai Peak, a Chinese producer and exporter of honey, in accordance 
with 19 CFR 351.213(b), during the anniversary month of December, to 
conduct a review of honey exporters from the PRC. On January 28, 2011, 
the Department initiated this review with respect to all 60 requested 
companies.\2\
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    \1\ The American Honey Producers Association and Sioux Honey 
Association, collectively ``Petitioners.''
    \2\ See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews, 76 FR 5137 (January 28, 2011) (``Initiation 
Notice'').
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    On February 7, 2011, Mongolia Altin Bee-Keeping Co., Ltd., Suzhou 
Shanding Honey Product Co., Ltd., and Wuhu Fenglian Co., Ltd. submitted 
a letter certifying they had no shipments during the POR and requesting 
the Department rescind this review with respect to each of them.\3\ On 
February 24, 2011, Petitioners withdrew the request for review for all 
companies requested except for Dongtai Peak. On March 9, 2011, the 
Department published a notice of partial rescission in the Federal 
Register for all of the companies for which the request for review was 
withdrawn.\4\ Dongtai Peak remains the only company subject to this 
review. On August 4, 2011, the Department published a notice extending 
the time period for issuing the preliminary results by 120 days to 
December 31, 2011.\5\
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    \3\ Companies have the opportunity to submit statements 
certifying that they did not ship the subject merchandise to the 
United States during the POR.
    \4\ See Honey from the People's Republic of China: Partial 
Rescission of Antidumping Duty Administrative Review, 76 FR 12940 
(March 9, 2011).
    \5\ See Ninth Administrative Review of Honey From the People's 
Republic of China: Extension of Time Limit for the Preliminary 
Results, 76 FR 47238 (August 4, 2011).
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Respondent Selection

    Section 777A(c)(1) of the Act directs the Department to calculate 
individual dumping margins for each known exporter or producer of the 
subject merchandise.\6\ However, section 777A(c)(2) of the Act gives 
the Department discretion to limit its examination to a reasonable 
number of exporters or producers, if it is not practicable to examine 
all exporters or producers for which the review is initiated.
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    \6\ See also 19 CFR 351.204(c) regarding respondent selection, 
in general.
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    On January 21, 2011, the Department released CBP data for entries 
of the subject merchandise during the POR under administrative 
protective order (``APO'') to all interested parties having access to 
materials released under APO inviting comments regarding the CBP data 
and respondent selection. The Department did not receive any comments 
on the CBP data.
    On February 16, 2011, the Department selected Dongtai Peak as the 
only mandatory respondent.\7\ As noted above, Mongolia Altin Bee-
Keeping Co., Ltd., Suzhou Shanding Honey Product Co., Ltd., and Wuhu 
Fenglian Co., Ltd. submitted a letter certifying they had no shipments 
during the POR and are no longer subject to this review. As discussed 
below, Petitioners have alleged that Dongtai Peak's sales were non-bona 
fide transactions,\8\ and therefore did not provide a reasonable or 
reliable basis for the Department to calculate a dumping margin.
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    \7\ See Memorandum to James Doyle, Director, AD/CVD Operations, 
Office 9, from Josh Startup, International Trade Analyst, Office 9; 
Selection of Respondents for the Antidumping Review Honey from the 
People's Republic of China (``PRC''), dated February 16, 2011.
    \8\ See, e.g., Petitioners' submissions received on August 1, 
2011, October 14, 2011, and November 21, 2011.
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Separate Rates

    In the Initiation Notice, the Department notified parties of the 
application process by which exporters and producers may obtain 
separate rate status in NME reviews.\9\ Other than Dongtai Peak's 
Section A portion of the questionnaire response filed on March 16, 
2011, no companies submitted a separate rate application or 
certification.
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    \9\ See Initiation Notice.
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Questionnaires

    On February 25, 2011, the Department issued its initial non-market 
economy (``NME'') antidumping duty questionnaire to the mandatory 
respondent Dongtai Peak. Dongtai Peak timely responded to the 
Department's initial and subsequent supplemental questionnaires between 
February and December 2011.\10\
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    \10\ While the Department continued to receive submissions from 
both Petitioners and Dongtai Peak through December, we were unable 
to take submissions submitted on or after December 13, 2011, into 
consideration for these preliminary results due to the close 
proximity to statutory deadlines. Submissions received on or after 
December 13, 2011, will be taken into consideration for the final 
results.
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Period of Review

    The POR is December 1, 2009, through November 30, 2010.

Scope of the Order

    The products covered by the order are natural honey, artificial 
honey containing more than 50 percent natural honey by weight, 
preparations of natural honey containing more than 50 percent natural 
honey by weight and flavored honey. The subject merchandise includes 
all grades and colors of honey whether in liquid, creamed, comb, cut 
comb, or chunk form, and whether packaged for retail or in bulk form.
    The merchandise subject to the order is currently classifiable 
under subheadings 0409.00.00, 1702.90.90 and 2106.90.99 of the 
Harmonized Tariff Schedule of the United States (``HTSUS''). Although 
the HTSUS subheadings are provided for convenience and customs 
purposes, the Department's written description of the merchandise under 
the order is dispositive.

Bona Fide Analysis

    In this administrative review, Petitioners alleged that the sales 
of Dongtai Peak were non-bona fide. Therefore, because there was an 
allegation regarding the bona fide nature of these sales the Department 
undertook that analysis in this review. Where all of the sales in a 
review are deemed as non-bona fide commercial transactions, this must 
end the review.\11\ To determine whether a sale in a review is 
unrepresentative or extremely distortive, and therefore excludable as 
non-bona fide, the Department employs a totality of the circumstances 
test.\12\ In examining the totality of the circumstances, the 
Department looks to whether or not the transaction is ``commercially 
unreasonable'' or ``atypical.'' \13\ Atypical or non-typical in this 
context means unrepresentative of a normal business practice.\14\
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    \11\ See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United 
States, 366 F. Supp. 2d 1246, 1249 (CIT 2005) (``TTPC'').
    \12\ See Glycine From The People's Republic of China: Rescission 
of Antidumping Duty New Shipper Review of Hebei New Donghua Amino 
Acid Co., Ltd., 69 FR 47405, 47406 (August 5, 2004).
    \13\ See Freshwater Crawfish Tail Meat from the People's 
Republic of China: Notice of Final Results of Antidumping Duty New 
Shipper Review, and Final Rescission of Antidumping Duty New Shipper 
Review, 68 FR 1439, 1440 (January 10, 2003).
    \14\ See Hebei New Donghua Amino Acid Co., Ltd. v. United 
States, 374 F. Supp. 2d 1333, 1339 (CIT 2005) (``New Donghua''), 
citing Windmill Int'l Pte., Ltd. v. United States, 193 F. Supp. 2d 
1303, 1313 (CIT 2002) (``Windmill''); see also TTPC, 366 F. Supp. 2d 
at 1249-50.

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[[Page 81]]

    The Department examines the bona fide nature of a sale on a case-
by-case basis, and the analysis may vary with the facts surrounding 
each sale.\15\ In TTPC, the court affirmed the Department's practice of 
considering that ``any factor which indicates that the sale under 
consideration is not likely to be typical of those which the producer 
will make in the future is relevant,'' \16\ and found that ``the weight 
given to each factor investigated will depend on the circumstances 
surrounding the sale.'' \17\ The Court stated that the Department's 
practice makes clear that the Department is highly likely to examine 
objective, verifiable factors to ensure that a sale is not being made 
to circumvent an antidumping duty order.\18\ Thus, a respondent is on 
notice that it is unlikely to establish the bona fides of a sale merely 
by claiming to have sold in a manner representative of its future 
commercial practice.\19\
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    \15\ See New Donghua, 374 F. Supp. 2d at 1340, n.5, citing TTPC, 
366 F. Supp. 2d at 1260, and Certain Preserved Mushrooms From the 
People's Republic of China: Final Results and Partial Rescission of 
the New Shipper Review and Final Results and Partial Rescission of 
the Third Antidumping Duty Administrative Review, 68 FR 41304 (July 
11, 2003), and accompanying Issues and Decision Memorandum at 
Comment 2.
    \16\ See TTPC, 366 F. Supp. 2d at 1250.
    \17\ See id. at 1263.
    \18\ See New Donghua, 374 F. Supp. 2d at 1339.
    \19\ See id.
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    In evaluating whether sales subject to review are commercially 
reasonable, and therefore bona fide, the Department normally considers 
a number of factors such as: (1) The timing of the sale; (2) the price 
and quantity; (3) the expenses arising from the transaction; (4) 
whether the goods were resold at a profit; and (5) whether the 
transaction was made on an arms-length basis; \20\ (6) as well as the 
business practices of the importer and U.S. customers.\21\ In this case 
and as further discussed below, the Department determines that the 
business practices of the importer and U.S. customer are so atypical 
and unusual that no other factors need to be analyzed.
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    \20\ See TTPC, 366 F. Supp. 2d at 1250.
    \21\ See New Donghua, 374 F. Supp. 2d at 1343-44.
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    When performing its bona fide analysis, the Department reviews the 
circumstances surrounding a respondent's sales of subject merchandise 
that entered the United States during the POR.\22\ Concurrent with this 
notice, we are issuing a business proprietary memorandum \23\ detailing 
our analysis of the bona fides of Dongtai Peak's U.S. entries and our 
preliminary decision to rescind the administrative review of Dongtai 
Peak based on the totality of the circumstances of its sales, because 
much of the information relied upon by the Department to analyze the 
bona fides issue is business proprietary. The Department determined 
that the sales made by Dongtai Peak were not bona fide for the 
following reasons: (1) The ultimate disposition of the honey is 
unknown, and no documentation was produced to demonstrate its status; 
(2) the licensing inconsistencies of the U.S. importer and its resale 
customer; and (3) the unusual channels of trade which the honey entered 
following its importation. Therefore, we preliminarily find that 
Dongtai Peak's sales that entered the United States during the POR are 
not bona fide commercial transactions, and that Dongtai Peak's sales 
entering the United States during the POR do not provide a reasonable 
or reliable basis for calculating a dumping margin.
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    \22\ See Dongtai Peak's Sections C and D Questionnaire Response, 
submitted April 4, 2011, at C-1.
    \23\ See Memorandum to the File from Josh Startup, International 
Trade Analyst, through Catherine Bertrand, Program Manager, to James 
C. Doyle, Director, regarding ``Antidumping Duty Administrative 
Review of Honey from the People's Republic of China: Bona Fide 
Analysis of Sales Under Review for Dongtai Peak Honey Industry Co., 
Ltd.,'' dated concurrently with this notice (``Dongtai Bona Fides 
Memo'').
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Preliminary Determination To Rescind

    As discussed above,\24\ we preliminarily determine that Dongtai 
Peak's U.S. sales were not bona fide commercial transactions; 
accordingly, Dongtai Peak has not met the requirements to qualify for 
an administrative review during the POR. Therefore, the Department is 
preliminarily rescinding this review with respect to Dongtai Peak 
because Dongtai Peak has no reviewable entries during the POR.\25\
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    \24\ See also Dongtai Bona Fides Memo.
    \25\ See TTPC, 366 F. Supp. 2d at 1249 (``{P{time} ursuant to 
the rulings of the Court, Commerce may exclude sales from the export 
price calculation where it finds that they are not bona fide'').
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Public Hearing

    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of review.\26\ Rebuttal briefs and rebuttals to 
written comments, limited to issues raised in such briefs or comments 
may be filed no later than five days after the deadline for filing case 
briefs.\27\ Parties who submit case briefs or rebuttal briefs in this 
proceeding are requested to submit with each argument: (1) A statement 
of the issue; (2) a brief summary of the argument; and (3) a table of 
authorities.\28\
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    \26\ See 19 CFR 351.309(c)(ii).
    \27\ See 19 CFR 351.309(d).
    \28\ See 19 CFR 351.309(c) and (d).
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    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
of this administrative review, interested parties may submit publicly 
available information to value factors of production (``FOPs'') within 
20 days after the date of publication of these preliminary results. 
Interested parties must provide the Department with supporting 
documentation for the publicly available information to value each FOP. 
Any interested party may request a hearing within 30 days of 
publication of this notice.\29\ Hearing requests should contain the 
following information: (1) The party's name, address, and telephone 
number; (2) the number of participants; and (3) a list of the issues to 
be discussed. Oral presentations will be limited to issues raised in 
the briefs.\30\ The Department will issue the final results of this 
administrative review, including the results of its analysis of the 
issues raised in any written briefs, not later than 120 days after the 
date of publication of this notice, pursuant to section 751(a)(3)(A) of 
the Act.
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    \29\ See 19 CFR 351.310(c).
    \30\ See 19 CFR 351.310(d).
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Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries 
covered by this review. For the companies receiving a separate rate 
that were not selected for individual review, we will assign an 
assessment rate based on rates calculated in previous reviews. Due to 
the fact that this review of Dongtai Peak is preliminarily rescinded, 
if this preliminary rescission is adopted in our final results of 
review, Dongtai Peak's antidumping duties shall be assessed at rates 
equal to the cash deposit of estimated antidumping duties required at 
the time of entry, or withdrawal from warehouse, for consumption, in 
accordance with 19 CFR 351.212(c)(2). The Department intends to issue 
appropriate assessment instructions directly to CBP 15 days after 
publication of the final results of this review.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with

[[Page 82]]

this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This determination is issued and published in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).

    Dated: December 23, 2011.
Christian Marsh,
Acting Assistant Secretary for Import Administration.
[FR Doc. 2011-33669 Filed 12-30-11; 8:45 am]
BILLING CODE 3510-DS-P