2011-22332. Honey From Argentina: Preliminary Results of Antidumping Duty New Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) is conducting a new shipper review (NSR) under the antidumping duty order on honey from Argentina in response to a request from Villamora S.A. (Villamora), an Argentine exporter of the subject merchandise. The domestic interested parties for this proceeding are the American Honey Producers Association and the Sioux Honey Association (collectively, petitioners).

We preliminarily find that the U.S. sale of subject merchandise exported by Villamora was bona fide and not sold below normal value (NV). If these preliminary results are adopted in our final results, the Department intends to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries covered by this review. See the “Assessment Rate” section of this notice. Interested parties are invited to comment on these preliminary results. See the “Preliminary Results of Review” section of this notice. The final results will be issued 90 days after the date of signature of these preliminary results, unless extended.

DATES:

Effective Date: August 31, 2011.

FOR FURTHER INFORMATION CONTACT:

Patrick Edwards or Ericka Ukrow,­ AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

The Department published the antidumping duty order on honey from Argentina on December 10, 2001. See Notice of Antidumping Duty Order: Honey from Argentina, 66 FR 63672 (December 10, 2001). On January 3, 2011, the Department received a timely filed request, dated December 31, 2010, from Villamora, in accordance with section 751(a)(2)(B) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.214(b), to conduct a new shipper review of the antidumping duty order on honey from Argentina. The Department found that the request for review met the statutory and regulatory requirements for initiation set forth in accordance with section 751(a)(2)(B) of the Act and 19 CFR 351.214(d), and initiated the review on January 25, 2011. See Honey from Argentina: Notice of Initiation of Antidumping Duty New Shipper Review, 76 FR 5332 (January 31, 2011) (NSR Initiation).

On February 7, 2011, the Department issued its new shipper questionnaire to Villamora. On March 14, 2011, Villamora submitted its section A response (AQR). On March 28, 2011, Villamora submitted its responses to sections B and C (BQR and CQR, respectively), and Appendix VIII (customer-specific) of the questionnaire. On May 16, 2011, the Department issued its first supplemental questionnaire to Villamora for which a response was filed on June 9, 2011. The Department also issued to Villamora a questionnaire regarding a “particular market situation” in Argentina on June 3, 2011, and a second supplemental questionnaire for sections A through C on June 22, 2011. Villamora submitted its response to the “particular market situation” questionnaire on June 29, 2011, and, in combination with its U.S. customer (through Villamora), submitted responses to the second supplemental questionnaire (SSQR) on June 29, 2011, and July 5, 2011.

On July 25, 2011, the Department extended the deadline for the preliminary results to August 23, 2011. See Honey from Argentina: Extension of Time Limit for Preliminary Results of Antidumping Duty New Shipper Review, 76 FR 44305 (July 25, 2011). Additionally, on July 28, 2011, the Department issued a third supplemental questionnaire to Villamora. On August 2, 2011, Villamora submitted its response to the third supplemental questionnaire (TSQR).

Scope of the Order

The merchandise subject to the order is honey from Argentina. For purposes of this order, the products covered are natural honey, artificial honey containing more than 50 percent natural honey by weight, preparations of natural honey containing more than 50 percent natural honey by weight, and flavored honey. The subject merchandise includes all grades and colors of honey whether in liquid, creamed, comb, cut comb, or chunk form, and whether packaged for retail or in bulk form.

The merchandise subject to 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 U.S. Customs and Border Protection (CBP) purposes, the Department's written description of the merchandise under this order is dispositive.

Bona Fides Analysis

Consistent with the Department's practice, we examined the bona fides of the new shipper sale at issue. In evaluating whether a sale in a NSR is commercially reasonable, and therefore bona fide, the Department considers, inter alia, such factors 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 arm's-length basis. See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 (Ct. Int'l Trade 2005) (TTPC). Accordingly, the Department considers a number of factors in its bona fides analysis, “all of which may speak to the commercial realities surrounding an alleged sale of subject merchandise.” See Hebei New Donghua Amino Acid Co., Ltd. v. United States, 374 F. Supp. 2d 1333, 1342 (Ct. Int'l Trade 2005) (New Donghua) (citing Fresh Garlic From the People's Republic of China: Final Results of Antidumping Administrative Review and Rescission of New Shipper Review, 67 FR 11283 (March 13, 2002), and accompanying Issues and Decision Memorandum (New Shipper Review of Clipper Manufacturing Ltd.)). In TTPC, the court also affirmed the Department's decision 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,” (TTPC, 366 F. Supp. 2d at 1250), and found that “the weight given to each factor investigated will depend on the circumstances surrounding the sale.” TTPC, 366 F. Supp. 2d at 1263. Finally, in New Donghua, the Court of International Trade affirmed the Department's practice of evaluating the circumstances surrounding a NSR sale, so that a respondent does not unfairly benefit from an atypical sale and obtain a lower dumping margin than the producer's usual commercial practice would dictate.

Based on the totality of circumstances, we preliminarily find that the sale made by Villamora during the POR was a bona fide commercial transaction. The facts that led us to this preliminary conclusion include the following: (1) Neither the price nor quantity of the sale were outside normal bounds; (2) neither Villamora nor its customer incurred any extraordinary expenses arising from this transaction; (3) the sale was made between unaffiliated parties at arm's length; and (4) the timing of the sale does not indicate that the sale was not bona fide. Since much of the factual information used in our analysis of the bona fides of the transaction involves business proprietary information, a full discussion of the basis for our decision is set forth in the Memorandum to Angelica Mendoza, Program Manager, from Ericka Ukrow and Patrick Edwards, International Trade Compliance Analysts, regarding Bona Fide Nature of the Sale in the Antidumping Duty New Shipper Review of Honey from Argentina: Villamora S.A. (Bona Fides Memorandum), dated concurrently with this notice and on file in the Central Records Unit (CRU), room 7046 of the main Department of Commerce building. We will continue to examine the bona fides of Villamora's sale after the preliminary results.

Period of Review

The period of review (POR) for this NSR is December 1, 2009, through November 30, 2010.

Fair Value Comparisons

To determine whether Villamora's sale of subject merchandise from Argentina was made in the United States at less than NV, we compared the export price (EP) to the NV, as described in the “U.S. Price” and “Normal Value” section of this notice in accordance with section 777A(d)(2) of the Act.

Home Market Viability

In order to determine whether there is a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (i.e., the aggregate volume of home market sales of the foreign like product is five percent or more of the aggregate volume of U.S. sales), we compared the volume of Villamora's home market sales of the foreign like product to the volume of its U.S. sale of subject merchandise, in accordance with section 773(a)(1)(B)(ii)(II) of the Act. Based on this comparison, we determined that Villamora's home market was viable during the POR. However, section 773(a)(1)(C)(iii) of the Act provides that the Department may determine that home market sales are inappropriate as a basis for determining NV if a particular market situation would not permit a proper comparison with EP or constructed export price (CEP). After reviewing information provided by Villamora regarding the honey industry in Argentina, the Department has determined that a “particular market situation” exists with respect to the honey market in Argentina during the POR for Villamora, rendering the Argentine market inappropriate for purposes of determining NV. See Memorandum to Richard Weible, Director AD/CVD Operations, Office 7, from Patrick Edwards and Ericka Ukrow, entitled “Whether a particular market situation exists such that the Argentine honey market is not an appropriate comparison market for establishing normal value,” dated August 24, 2011 (Particular Market Situation Memorandum). See also the discussion of “Selection of Comparison Market” under “Normal Value” below.

Product Comparisons

Pursuant to section 771(16)(A) of the Act, for purposes of determining appropriate product comparisons to the U.S. sales, the Department considers all products, as described in the “Scope of the Order” section of this notice above, that were sold in the comparison or third-country market in the ordinary course of trade. In accordance with sections 771(16)(B) and (C) of the Act, where there are no sales of identical merchandise in the comparison or third-country market made in the ordinary course of trade, we compare U.S. sales to sales of the most similar foreign like product based on the characteristics listed in sections B and C of our antidumping questionnaire: Type, grade or color, and form. We found that Villamora had sales of foreign like product that were identical in these respects to the merchandise sold in the United States, and therefore compared the U.S. product with the identical merchandise sold in the third-country market, i.e., Germany, based on the characteristics listed above, in that order of priority.^[1]

Date of Sale

Pursuant to 19 CFR 351.401(i), the Department will normally use the date of invoice as the date of sale, unless a different date better reflects the date on which the material terms of sale are established. In its initial response, Villamora reported invoice date as the date of sale for its third-country market sales and its U.S. sale. Moreover, Villamora reported that for both markets, it issues the invoice concurrently with the departure of the vessel. See Villamora's BQR at 10 and CQR at 9. In its first supplemental questionnaire reponse (FSQR), dated June 9, 2011, Villamora clarified that while the purchase order generally sets the expected terms of sale, such orders are subject to change prior to shipment. Furthermore, Villamora notes that the quantity specified in the purchase order is not always identical to the actual quantity shipped. See Villamora's FSQR, dated June 9, 2011, at 16-18. Accordingly, we preliminarily find that there is potential for change to the essential terms of sale between the order date and invoice date, and therefore, invoice date continues to be the appropriate date of sale with respect to Villamora's sales to the U.S. and third-country markets. However, during the POR, for all of Villamora's sales, shipment occurred prior to invoice and, consistent with past segments of this proceeding and the Department's practice, we used the shipment date as the date of sale. See Stainless Steel Sheet and Strip in Coils from the Republic of Korea: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 71 FR 18074, 18079-80 (April 10, 2006), unchanged in Stainless Steel Sheet and Strip in Coils from the Republic of Korea; Final Results and Rescission of Antidumping Duty Administrative Review in Part, 72 FR 4486 (January 31, 2007), and the accompanying Issues and Decision Memorandum at Comments 4 and 5; Certain Cold-Rolled and Corrosion-Resistant Carbon Steel Flat Products From Korea: Final Results of Antidumping Duty Administrative Reviews, 63 FR 13170, 13172-73 (March 18, 1998).

U.S. Price

Section 772(a) of the Act defines EP as “the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under (section 772(c) of the Act).” Section 772(b) of the Act defines CEP as “the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter,” as adjusted under sections 772(c) and (d) of the Act. For purposes of this new shipper review, Villamora classified their U.S. sale as EP because this sale was made before the date of importation directly to an unaffiliated customer in the U.S. market. For purposes of these preliminary results, we have accepted this classification. We calculated EP using the price Villamora charged its unaffiliated customer. We made deductions and adjustments, where appropriate, for movement expenses, export taxes, inland insurance, shipping revenues, brokerage and handling, and other expenses incurred in Argentina.

Information about the specific adjustments and our analysis of the adjustments is business proprietary, and is detailed in the Memorandum to The File, through Angelica Mendoza, Program Manager, from Patrick Edwards and Ericka Ukrow, International Trade Compliance Analysts, Analysis Memorandum for the Preliminary Results of the Antidumping Duty New Shipper Review of Honey from Argentina: Villamora S.A., dated concurrently with this notice (Preliminary Analysis Memorandum).

Normal Value

1. Selection of Comparison Market

In accordance with section 773(a)(1)(C) of the Act, to determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV (i.e., the aggregate volume of home market sales of the foreign like product is greater than or equal to five percent of the aggregate volume of U.S. sales), we compared Villamora's aggregate volume of home market sales of the foreign like product to its aggregate volume of U.S. sales of subject merchandise. Villamora's volume of home market sales were greater than five percent of the aggregate volume of U.S. sales. However, section 773(a)(1)(C)(iii) of the Act provides that the Department may determine that home market sales are inappropriate as a basis for determining NV if a particular market situation would not permit a proper comparison with EP and CEP.

As noted above, the Department determined that a particular market situation does, in fact, exist with respect to Villamora's sales of honey in Argentina, rendering the Argentine market inappropriate for purposes of determining NV. See Particular Market Situation Memorandum.

When sales in the home market are not suitable to serve as the basis for NV, section 773(a)(1)(B)(ii) of the Act provides that sales to a third-country market may be utilized if: (i) The prices in such market are representative; (ii) the aggregate quantity of the foreign like product sold by the producer or exporter in the third-country market is five percent or more of the aggregate quantity of the subject merchandise sold in or to the United States; and (iii) the Department does not determine that a particular market situation in the third-country market prevents a proper comparison with the EP or CEP. In terms of volume of sales (and with five percent or more of sales by quantity to the United States), Villamora reported Germany as its largest third-country market during the POR.

The Department preliminarily finds there is no evidence on the record to demonstrate that these prices in Germany are not representative. See Villamora's AQR at Exhibit A.1. In addition, the record shows the aggregate quantity of Villamora's sales to Germany is greater than five percent of Villamora's sales to the United States. Nor is there evidence that any other third-country market to which Villamora sells would offer greater similarity of product to that sold to the United States. Further, we find there is no particular market situation in Germany with respect to Villamora or the general honey market that would prevent a proper comparison to EP. As a result, we preliminarily find Villamora's sales to Germany serve as the most appropriate basis for NV.

In addition to looking at volume, we also examined and found product similarity between Villamora's product sold to the largest third-country market and the product sold to the United States. Thus, the Department determines to select Germany as the appropriate comparison market for Villamora.

Therefore, Villamora's NV is based on its German sales to unaffiliated purchasers made in commercial quantities and in the ordinary course of trade. For NV, we used the prices at which the foreign like product was first sold for consumption in the usual commercial quantities, in the ordinary course of trade, and at the same level of trade (LOT) as the EP. See “Level of Trade” section below. We calculated NV as noted in the relevant section of this notice, infra.

2. Affiliated Entities

Villamora claimed in its responses that Enzo Juan Garaventa is affiliated with Villamora. See Villamora's AQR at A-9; see also Villamora's response to the Department's letter titled “Antidumping Duty New Shipper Review of Honey from Argentina: Treatment of Certain Information as Business Proprietary,” dated July 25, 2011. Much of the discussion concerning Villamora and its affiliate, Enzo Juan Garaventa, is proprietary in nature. Therefore, for a complete analysis of the affiliation that exists between the two entities, see Memorandum to Richard Weible, Office Director, from Patrick Edwards and Ericka Ukrow, International Trade Compliance Analysts, titled “Antidumping Duty New Shipper Review of Honey from Argentina: Analysis of the Relationship Between Villamora S.A. (Villamora) and Enzo Juan Garaventa (Garaventa),” dated August 24, 2011 (Affiliation and Collapsing Memorandum). As a result of our analysis and pursuant to section 771(33)(E) of the Act and 19 CFR 351.102(b)(3), we preliminarily find that Villamora and Enzo Juan Garaventa are affiliated.

Pursuant to 19 CFR 351.401(f), the Department will treat two or more affiliated producers as a single entity where: (1) Those producers have production facilities for similar or identical product that would not require substantial retooling of either facility; and (2) there is a significant potential for manipulation of price or production. Evidence on the record shows that Enzo Juan Garaventa and Villamora produce similar or identical merchandise. Additionally, the nature of their affiliation, as well as Enzo Juan Garaventa's involvement in several aspects of Villamora's operations, demonstrates a significant potential for manipulation of price and/or production between the two entities. Therefore, for purposes of this new shipper review, the Department has also preliminarily determined that it is appropriate to treat Enzo Juan Garaventa and Villamora as a single entity, pursuant to 19 CFR 351.401(f)(1) and (2). For a more detailed discussion of our collapsing analysis, see Affiliation and Collapsing Memorandum.

Level of Trade

In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same LOT as the EP or CEP sales in the U.S. market. For further discussion of our LOT analysis, see Preliminary Analysis Memorandum.

After analyzing the information on the record with respect to these selling functions, we preliminarily find that all reported sales are made at the same LOT. For a further discussion of LOT, see “Level of Trade” section in the Preliminary Analysis Memorandum.

Calculation of Normal Value

We based NV on the third-country prices to unaffiliated customers in Germany. Pursuant to section 773(a)(6)(B)(ii) of the Act, we made adjustments, where applicable, for movement expenses (i.e., inland freight, export taxes, and shipping revenues). In accordance with section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(c), we made, where appropriate, circumstance-of-sale adjustments for third-country market and U.S. direct selling expenses including imputed credit and warranty expenses. See Preliminary Analysis Memorandum.

Currency Conversion

The Department's preferred source for daily exchange rates is the Federal Reserve Bank. See Preliminary Results of Antidumping Duty Administrative Review: Stainless Steel Sheet and Strip in Coils from France, 68 FR 47049, 47055 (August 7, 2003) (unchanged in Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Sheet and Strip in Coils From France, 68 FR 69379 (December 12, 2003)). However, the Federal Reserve Bank does not track or publish exchange rates for the Argentine peso. Therefore, we made currency conversions from Argentine pesos to U.S. dollars based on the daily exchange rates from Factiva, a Dow Jones retrieval service. Factiva publishes exchange rates for Monday through Friday only. We used the rate of exchange on the most recent Friday for conversion dates involving Saturday through Sunday where necessary.

Preliminary Results of New Shipper Review

As a result of our review, we preliminarily find, in accordance with 19 CFR 351.214(i)(1), that the following weighted-average dumping percentage margin exists for Enzo Juan Garaventa/Villamora for the period December 1, 2009, through November 30, 2010:

Manufacturer/Exporter	Weighted- Average margin (percent)
Enzo Juan Garaventa or Villamora S.A./Enzo Juan Garaventa or Villamora S.A.	0.00

Assessment Rate

Upon completion of this new shipper review, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries, in accordance with 19 CFR 351.212(b). The Department intends to issue assessment instructions for Enzo Juan Garaventa/Villamora directly to CBP 15 days after the date of publication of the final results of this new shipper review.

Pursuant to 19 CFR 351.212(b)(1), we will calculate an importer-specific assessment rate on the basis of the ratio of the total amount of antidumping duties calculated for the examined sales and the total entered value of the examined sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if the importer-specific assessment rate calculated in the final results of this review is above de minimis (i.e., at or above 0.50 percent). Pursuant to 19 CFR 351.106(c)(2), we intend to instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is zero or de minimis (i.e., less than 0.50 percent). See 19 CFR 351.106(c)(1).

Cash Deposit Requirements

The following cash deposit requirements will be effective for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this new shipper review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for subject merchandise that is manufactured by Enzo Juan Garaventa or Villamora and exported by Enzo Juan Garaventa or Villamora will be the rate established in the final results of this new shipper review, except no cash deposit will be required if its weighted-average margin is de minimis (i.e., less than 0.5 percent); (2) if the exporter is not a firm covered in this review, but was covered in a previous review or the original less-than-fair-value (LTFV) investigation, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a previous review, or the original LTFV investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) the cash deposit rate for all other manufacturers and/or exporters of this merchandise, shall be 30.24 percent, the all-others rate established in the LTFV investigation. See Notice of Antidumping Duty Order; Honey From Argentina, 66 FR 63672 (December 10, 2001). These requirements, when imposed, shall remain in effect until further notice.

Further, effective upon publication of the final results, we intend to instruct CBP that importers may no longer post a bond or other security in lieu of a cash deposit on imports of honey from Argentina, manufactured by Enzo Juan Garaventa or Villamora and exported by Enzo Juan Garaventa or Villamora. These cash deposit requirements, when imposed, shall remain in effect until further notice.

Disclosure and Public Hearing

The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of public announcement. See 19 CFR 351.224(b). Unless notified by the Department, pursuant to 19 CFR 351.309(c)(ii), interested parties may submit cases briefs not later than 30 days after the date of publication of this notice. Rebuttal briefs, limited to issues raised in the case briefs, may be filed not later than five days after the deadline for filing the case briefs. See 19 CFR 351.309(d). 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. Additionally, parties are requested to provide their case briefs and rebuttal briefs in electronic format (e.g., WordPerfect, Microsoft Word, Adobe Acrobat, etc.).

Interested parties who wish to request a hearing or to participate if one is requested must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. 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 will be limited to those raised in the case and rebuttal briefs. See 19 CFR 351.310(c).

Beginning August 5, 2011, with certain limited exceptions, interested parties are required to file electronically all submissions for all proceedings using Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (IA ACCESS). An electronically-filed document must be successfully received in its entirety by the Department's electronic records system, IA ACCESS, by the time and date of the above-referenced deadline for the submission of case briefs. Documents excepted from the electronic submission requirements, must be filed manually (i.e., in paper form) with the APO/Dockets Unit in Room 1870 and stamped with the date and time of receipt by the deadline. See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).^[2]

The Department will issue the final results of this review, including the results of its analysis of issues raised in any written briefs, within 90 days of signature of these preliminary results, unless the final results are extended. See section 751(a)(2)(B)(iv) of the Act.

Notification to Importers

This notice 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.

This new shipper review is issued and published in accordance with sections 751(a)(2)(B)(iv) and 777(i)(1) of the Act, as well as 19 CFR 351.214(i).^[3]

Dated: August 24, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See “Selection of Comparison Market” section below.

2.  Available online at http://www.gpo.gov/​fdsys/​pkg/​FR-2011-07-06/​pdf/​2011-16352.pdf.

3.  There was an earthquake on Tuesday, August 23, 2011, which resulted in the Commerce building being closed from 2 pm until COB on that day. Because the closure affected our ability to issue this determination within the statutory deadline, we have tolled the deadline by one day.