[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