2010-22650. Honey From the People's Republic of China: Preliminary Intent To Rescind New Shipper Reviews

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department is conducting two new shipper reviews (“NSRs”) covering the period of review (“POR”) of December 1, 2008, through November 30, 2009. Because the sales made by Suzhou Shanding Honey Product Co., Ltd. (“Suzhou”) and Wuhu Fenglian Co., Ltd. (“Fenglian”) are not bona fide, we have preliminarily determined to rescind these NSRs.

DATES:

Effective Date: September 10, 2010.

FOR FURTHER INFORMATION CONTACT:

Katie Marksberry or Josh Startup, AD/CVD Operations, Office 9, 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:

General Background

On December 12, 2009, and December 14, 2009, respectively, pursuant to section 751(a)(2)(B)(i) of the Tariff Act of 1930, as amended (“the Act”), and 19 CFR 351.214(c), the Department received NSR requests from Suzhou and Fenglian. On February 4, 2010, the Department published in the Federal Register its initiation of these NSRs.^[1]

On February 4, 2010, the Department issued antidumping duty new shipper questionnaires to Fenglian and Suzhou. Between March 2010 and July 2010, the Department received timely filed original and supplemental questionnaire responses from Suzhou and Fenglian, respectively.

On February 12, 2010, the Department exercised its discretion to toll the deadlines for all Import Administration cases by seven calendar days due to the February 5, through February 12, 2010, Federal Government closure. See Memorandum to the Record from Ronald Lorentzen, DAS for Import Administration, regarding “Tolling of Administrative Deadlines as a Result of the Government Closure During the Recent Snowstorm,” dated February 12, 2010.

Extension of Time Limits

On July 7, 2010, the Department extended the time limits for these preliminary results by 90 days to November 2, 2010.^[2]

Expansion of the POR

When the sale of the subject merchandise occurs within the POR specified by the Department's regulations but the entry occurs after the POR, the specified POR may be extended unless it would be likely to prevent the completion of the review within the time limits set by the Department's regulations.^[3] Additionally, the preamble to the Department's regulations states that both the entry and the sale should occur during the POR, and that under “appropriate” circumstances the Department has the flexibility to extend the POR.^[4] In this instance, both Suzhou and Fenglian's sales of subject merchandise were made during the POR specified by the Department's regulations but the shipment entered within thirty days after the end of that POR. The Department finds that extending the POR to capture these entry would not prevent the completion of the review within the time limits set by the Department's regulations. Therefore, the Department is expanding the POR for the new shipper review of Suzhou and Fenglian by thirty days.^[5]

Surrogate Country and Surrogate Values

On May 27, 2010, Suzhou and Fenglian (collectively “respondents”) submitted market economy (“ME”) surrogate value (“SV”) information. On June 7, 2010, Petitioners ^[6] submitted rebuttal surrogate value comments. No other party submitted surrogate country or SV data.

Scope of the Order

The products covered by this 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 this order is currently classifiable under subheadings 0409.00.00, 1702.90.90 and 2106.90.99 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the merchandise under order is dispositive.

Preliminary Intent To Rescind

Consistent with the Department's practice, we investigated the bona fide nature of the sales made by Suzhou and Fenglian for this NSR. In evaluating whether or not 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.^[7] 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 the subject merchandise.” ^[8] An additional factor may be the business practices of U.S. customers.^[9] In TTPC, the court affirmed the Department's practice of considering that “any factor which indicates that the sale under consideration is not likely to be typical of those which the producer will make in the future is relevant,” ^[10] and found that “the weight given to each factor investigated will depend on the circumstances surrounding the sale.” ^[11] Finally, in New Donghua, the CIT 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.^[12] Where a review is based on a single sale, exclusion of that sale as non-bona fide necessarily must end the review.^[13]

Suzhou

In analyzing Suzhou's single POR sale to the United States, the Department preliminarily determines that this sale is not bona fide, as it is not typical of Suzhou's usual commercial practices nor is it commercially reasonable. The Department reached this conclusion based on the totality of the circumstances, including the atypical nature of Suzhou's POR pricing, and the unusual business practices of Suzhou's U.S. customer. Because much of our analysis regarding the evidence of the bona fides of the transaction involves business proprietary information, a full discussion of the bases for our decision to find Suzhou's single POR sale not bona fide is set forth in the Memorandum to the File from Katie Marksberry, International Trade Specialist, through Catherine Bertrand, Program Manager, regarding “Antidumping Duty New Shipper Review of Honey from the People's Republic of China: Bona Fide Analysis of the Sale Under Review for Suzhou Shanding Honey Product Co., Ltd.,” dated September 2, 2010.

Fenglian

In analyzing Fenglian's single POR sale to the United States, the Department preliminarily determines that this sale is not bona fide, as it is not typical of Fenglian's usual commercial practices nor is it commercially reasonable. The Department reached this conclusion based on the totality of the circumstances, including the atypical nature of Fenglian's POR pricing, and other proprietary circumstances concerning the nature of Fenglian's sale. Because much of our analysis regarding the evidence of the bona fides of the transaction involves business proprietary information, a full discussion of the bases for our decision to find Fenglian's single POR sale not bona fide is set forth in the Memorandum to the File from Josh Startup, International Trade Specialist, through Catherine Bertrand, Program Manager, regarding “Antidumping Duty New Shipper Review of Honey from the People's Republic of China: Bona Fide Analysis of the Sale Under Review for Wuhu Fenglian Co., Ltd.,” dated September 2, 2010.

Therefore, the Department is preliminarily rescinding the NSR for Suzhou and Fenglian, as we have preliminarily determined that each company's single sale during the POR is not bona fide and, consequently, not subject to review.

Comments

In accordance with 19 CFR 351.301(c)(1), for the final results of these NSRs, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it rebuts, clarifies, or corrects information recently placed on the record.^[14]

Interested parties may submit case briefs and/or written comments no later than 45 days after the date of publication of these preliminary results of this NSR. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 5 days after the deadline for submitting the case briefs. See 19 CFR 351.309(d). The Department requests that interested parties provide an executive summary of each argument contained within the case briefs and rebuttal briefs.

Any interested party may request a hearing within 30 days of publication of these preliminary results. See 19 CFR 351.310(c). Requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If we receive a request for a hearing, we plan to hold the hearing seven days after the deadline for submission of the rebuttal briefs at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

The Department intends to issue the final results of this NSR, which will include the results of its analysis raised in any such comments, within 90 days of publication of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of the Act.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of the final results of this NSR for all shipments of subject merchandise from Suzhou or Fenglian 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 subject merchandise produced and exported by Suzhou or Fenglian, the cash deposit rate will continue to be the PRC-wide rate (i.e., $2.63 per kilogram); (2) for subject merchandise exported by Suzhou or Fenglian but not manufactured by Suzhou or Fenglian, the cash deposit rate will continue to be the PRC-wide rate (i.e., $2.63 per kilogram); and (3) for subject merchandise manufactured by Suzhou or Fenglian, but exported by any other party, the cash deposit rate will be the rate applicable to the exporter. These cash deposit requirements, when imposed, shall remain in effect until further notice.

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 POR. 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.

We are issuing and publishing this determination in accordance with sections 751(a)(2)(B) and 777(i) of the Act, and 19 CFR 351.214(h) and 351.221(b)(4).

Dated: September 2, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Honey from the People's Republic of China: Initiation of New Shipper Antidumping Duty Reviews, 75 FR 5764 (February 4, 2010).

2.  See Honey From the People's Republic of China: Extension of Time Limit for the Preliminary Results for New Shipper Review, 75 FR 38980 (July 7, 2010).

3.  See 19 CFR 351.214(f)(2)(ii).

4.  See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27319-27320 (May 19, 1997).

5.  See Memorandum to The File, from Blaine Wiltse, International Trade Compliance Analyst, Office 9, regarding “Placing CBP Data on the Record of New Shipper Reviews of Honey from the People's Republic of China,” dated January 8, 2010 (“CBP Entry Package Memo”).

6.  The Petitioners are the members of the American Honey Producers Association and the Sioux Honey Association (hereinafter referred to as “Petitioners”).

7.  See Tianjin Tiancheng Pharmaceutical Co., Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 (CIT 2005) (“TTPC”).

8.  See Hebei New Donghua Amino Acid Co., Ltd. v. United States, 374 F. Supp. 2d 1333, 1342 (CIT 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.).

9.  See New Donghua, 374 F. Supp. 2d at 1343-44.

10.  See TTPC, 366 F. Supp. 2d at 1250.

11.  See id. at 1263.

12.  See New Donghua, 374 F. Supp. 2d at 1338.

13.  See TTPC, 366 F. Supp. 2d at 1249.

14.  See Glycine from the People's Republic of China: Final Results of Antidumping Duty Administrative Review and Final Rescission in Part, 72 FR 58809 (October 17, 2007), and accompanying Issues and Decision Memorandum at Comment 2.