[Federal Register Volume 77, Number 151 (Monday, August 6, 2012)]
[Notices]
[Pages 46699-46704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-19151]
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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\
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\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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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\
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\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).
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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\
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\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.
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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).
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\16\ See Letter from Catherine Bertrand, Program Manager, Office
9, to Peak regarding Supplemental Section A Questionnaire (April 3,
2012), at 2.
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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\
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\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.
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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\
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\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.
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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.
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\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.'').
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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\
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\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.'')
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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\
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\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.
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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\
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\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.
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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.
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\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).
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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\
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\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).
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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\
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\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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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.
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\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.
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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.
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\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).
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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