[Federal Register Volume 76, Number 10 (Friday, January 14, 2011)]
[Notices]
[Pages 2655-2662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-790]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-357-812]
Honey From Argentina: Preliminary Results of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests by interested parties, the Department
of Commerce (the Department) is conducting an administrative review of
the antidumping duty order on honey from Argentina. The review covers
imports of subject merchandise from three firms (see ``Background''
section of this notice for further explanation). The period of review
(POR) is December 1, 2008, through November 30, 2009. We preliminarily
determine that sales of honey from Argentina have not been made below
normal value (NV) by TransHoney S.A. (TransHoney), Compania Inversora
Platense S.A. (CIPSA), or Patagonik S.A. (Patagonik) during the POR. If
these preliminary results are adopted in our final results of
administrative review, we will issue appropriate assessment
instructions to U.S. Customs and Border Protection (CBP). Interested
parties are invited to comment on these preliminary results. Parties
who submit argument in this review are requested to submit with the
argument: (1) A statement of the issues; (2) a brief summary of the
argument; and (3) a table of authorities.
DATES: Effective Date: January 14, 2011.
FOR FURTHER INFORMATION CONTACT: David Cordell (Patagonik), Dena
Crossland (CIPSA), or Patrick Edwards (TransHoney), AD/CVD Operations,
Office 7, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW.,
Room 7850, Washington, DC 20230; telephone (202) 482-0408, (202) 482-
3362, or (202) 482-8029, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 10, 2001, the Department published the antidumping duty
order on honey from Argentina. See Notice of Antidumping Duty Order:
Honey From Argentina, 66 FR 63672 (December 10, 2001). On December 1,
2009, the Department published in the Federal Register its notice of
opportunity to request an administrative review of this order. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity To Request Administrative Review, 74 FR
62743 (December 1, 2009). In response, on December 31, 2009, Asociacion
de Cooperativas Argentinas (ACA), Nexco S.A. (Nexco), CIPSA, Patagonik,
and TransHoney requested an administrative review of the antidumping
duty order on honey from Argentina for the period December 1, 2008,
through November 30, 2009. In addition, on December 31, 2009, the
American Honey Producers Association and Sioux Honey Association
(collectively, petitioners) requested an administrative review of the
antidumping duty order on honey from Argentina for the period December
1, 2008, through November 30, 2009. Specifically, the petitioners
requested that the Department conduct an administrative review of
entries of
[[Page 2656]]
subject merchandise made by 18 Argentine producers/exporters. ACA,
Nexco, CIPSA, Patagonik, and TransHoney were included in the
petitioners' request for review.
On January 29, 2010, the Department initiated a review of 17 of the
18 companies for which an administrative review was requested.\1\ See
Initiation of Antidumping and Countervailing Duty Administrative
Reviews, Request for Revocation in Part, and Deferral of Initiation of
Administrative Review, 75 FR 4770, 4772 (January 29, 2010) (Initiation
Notice).
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\1\ In accordance with 19 CFR 351.213(c), the Department
deferred for one year the initiation of the administrative review
with respect to ACA. See Honey From Argentina: Notice of Extension
of Time Limit for Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review, 75 FR 55741, 55741 n.1
(September 14, 2010) (Honey Extension Notice).
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On February 17, 2010, Mielar S.A. (Mielar) and Compania Apicola
Argentina S.A. (CAA) submitted a letter certifying that during the POR,
neither made any shipment, sale, or U.S. entry of subject merchandise,
and requested that the Department rescind the administrative review
with respect to Mielar and CAA.
Also on February 17, 2010, the Department issued a memorandum to
the file indicating its intention to limit the number of respondents
selected for review and to select mandatory respondents based on CBP
data for U.S. imports of Argentine honey during the POR. The Department
encouraged all interested parties to submit comments regarding the use
of CBP entry data for respondent selection purposes. See Memorandum to
the File through Richard Weible, Director, Office 7, AD/CVD Operations,
regarding ``Honey from Argentina--United States Customs and Border
Protection Entry Data for Selection of Respondents for Individual
Review,'' dated February 17, 2010.
On March 5, 2010, the Department selected the four producers/
exporters with the largest export volume during the POR as mandatory
respondents: HoneyMax S.A. (HoneyMax), Nexco, Patagonik, and
TransHoney. See Memorandum to Richard Weible, ``Administrative Review
of the Antidumping Duty Order on Honey from Argentina: Respondent
Selection Memorandum,'' dated March 5, 2010. On March 9, 2010, the
Department issued its antidumping questionnaire to all four mandatory
respondents.
On March 31, 2010, and pursuant to 19 CFR 351.213(d)(1), the
petitioners timely withdrew their request for review of HoneyMax.
On April 7, 2010, the petitioners and Nexco timely withdrew their
requests for review of Nexco.
On April 16, 2010, the petitioners timely withdrew their request
for review with respect to all companies except TransHoney, Patagonik,
CIPSA, and ACA. Accordingly, the Department informed interested parties
of its intent to rescind the review for all companies except
TransHoney, Patagonik, and CIPSA, to continue with its deferral of the
review with respect to ACA, and to select CIPSA as a mandatory
respondent in place of Nexco. See Memorandum to the File, ``2008/2009
Administrative Review of the Antidumping Duty Order on Honey from
Argentina: Selection of New Mandatory Respondent,'' dated April 19,
2010. On April 19, 2010, the Department issued sections A, B, and C of
its antidumping questionnaire to CIPSA.
On April 29, 2010, ACA timely withdrew its request for review
submitted on December 31, 2009.\2\
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\2\ The withdrawal of the request for review was submitted by
ACA based on the Department's notification in the Federal Register
revoking the antidumping duty order with respect to honey exported
by ACA effective December 1, 2008. Because the order covering honey
from Argentina is revoked with respect to ACA, all entries of
subject merchandise exported by ACA will be liquidated without
regard to antidumping duties. Accordingly, there will be no relevant
entries that might be subject to an antidumping review. See Honey
from Argentina: Final Results of Antidumping Duty Administrative
Review and Determination to Revoke Order in Part, 75 FR 23674 (May
4, 2010).
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On September 14, 2010, the Department rescinded the administrative
review with respect to fifteen companies: AGLH S.A., Algodonera
Avellaneda S.A., Alimentos Naturales-Natural Foods, Alma Pura, Bomare
S.A., CAA, El Mana S.A., Interrupcion S.A., Mielar, Miel Ceta SRL.,
Productos Afer S.A., Seabird Argentina S.A., HoneyMax, Nexco, and ACA.
This rescission, in part, was based on the timely withdrawal of the
request for review by the interested parties that requested the review.
See Honey Extension Notice. Additionally, the Department extended the
preliminary results of this administrative review to no later than
January 7, 2011. Id.
On October 6, 2010, the Department determined that a ``particular
market situation'' with respect to the honey market existed in
Argentina during the POR for certain exporters under review. See
Memorandum to Richard Weible, Director AD/CVD Operations, Office 7,
from David Cordell and Dena Crossland, entitled ``Whether a particular
market situation exists such that the Argentine honey market is not an
appropriate comparison market for establishing normal value,'' dated
October 6, 2010 (Particular Market Situation Memorandum). See also the
discussion of ``Selection of Comparison Market'' under ``Normal Value''
below.
Below is the company-specific background information with respect
to Patagonik, CIPSA, and TransHoney.
Patagonik
On April 6, 2010, Patagonik filed its response to the Department's
section A questionnaire (Patagonik AQR). On May 7, 2010, Patagonik
filed its response to sections B and C of the Department's
questionnaire. Between April 2010 and November 2010, the Department
issued supplemental questionnaires to Patagonik, to which it filed
timely responses.
In accordance with section 773(b)(2)(A)(ii) of the Tariff Act of
1930, as amended (the Act), we automatically initiated a cost
investigation in this segment of the proceeding with respect to
Patagonik because we disregarded sales by Patagonik that were below the
cost of production (COP) in the most recently completed segment of this
proceeding.\3\ On June 22, 2010, the Department selected the two
largest beekeeper suppliers (by volume) of honey to Patagonik as cost
respondents. See Memorandum to Richard Weible, ``Selection of Cost of
Production Respondents,'' dated June 22, 2010 (Cost Respondents
Selection Memorandum). We also recommended examining Patagonik's
affiliated middleman, Azul Agronegocios S.A. (Azul).\4\
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\3\ See Honey from Argentina: Final Results of Antidumping Duty
Administrative Review and Determination to Revoke Order in Part, 74
FR 32107, 32108-09 (July 7, 2009) (06-07 Final Results).
\4\ For a detailed discussion of Patagonik's relationship with
Azul, see the ``Affiliation'' section below.
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On July 1, 2010, the Department revised its selection of the cost
respondents in response to Patagonik's July 1, 2010 letter noting that
Azul had incorrectly identified one of the selected cost respondents.
See ``Revision of Cost of Production Respondent Selection: Addendum to
Memorandum of June 22, 2010,'' dated July 1, 2010 (Revision of Cost
Respondent Selection Memorandum).
On July 14, 2010, the Department issued its cost questionnaire to
the selected beekeepers and middleman to which Patagonik's suppliers
responded on August 25, 2010. The Department issued a supplemental cost
questionnaire to Patagonik's suppliers in November 2010 and December
2010, to which they timely responded.
[[Page 2657]]
CIPSA
On May 24, 2010, CIPSA filed its response to section A of the
Department's questionnaire (CIPSA AQR). On June 9, 2010, CIPSA filed
its response to sections B and C of the Department's questionnaire.
Between July 2010 and October 2010, the Department issued supplemental
questionnaires to CIPSA, to which it filed timely responses.
TransHoney
On April 26, 2010, TransHoney filed its response to the
Department's section A questionnaire (TransHoney AQR). On May 7, 2010,
TransHoney filed its response to sections B and C of the Department's
questionnaire (TransHoney BQR and TransHoney CQR). Between May 2010 and
October 2010, the Department issued supplemental questionnaires to
TransHoney, to which it filed timely responses. On June 8, 2010,
TransHoney also filed comments regarding the identification of organic
honey versus standard honey.
Period of Review
The POR is December 1, 2008, through November 30, 2009.
Tolling of Deadlines
As explained in the memorandum from the Deputy Assistant Secretary
(DAS) for Import Administration, the Department exercised its
discretion to toll deadlines for the duration of the closure of the
federal government from February 5, 2010 through February 12, 2010.
Thus, all deadlines in this segment of the proceeding were extended by
seven days. 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.
On September 14, 2010, the Department published in the Federal
Register a notice extending the time limits for the preliminary results
of this review. See Honey Extension Notice, 75 FR at 55741. This
extension established the deadline for these preliminary results as
January 7, 2011. Id. at 55742.
Scope of the Order
The merchandise covered by the order is honey from Argentina. 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 covered by the order is currently classifiable
under subheadings 0409.00.00, 1702.90.90, and 2106.90.99 of the
Harmonized Tariff Schedule of the United States (HTSUS). Although the
HTSUS subheadings are provided for convenience and customs purposes,
the Department's written description of the merchandise under the order
is dispositive.
Product Comparisons
In accordance with section 771(16) of the Act, we considered all
sales of honey covered by the description in the ``Scope of the Order''
section of this notice, supra, which were sold in the appropriate
third-country markets during the POR to be the foreign like product for
the purpose of determining appropriate product comparisons to honey
sold in the United States. For our discussion of market viability and
selection of comparison markets, see the ``Normal Value'' section of
this notice, infra. We matched products based on the physical
characteristics reported by CIPSA, Patagonik, and TransHoney. Where
there were no sales of identical merchandise in the third-country
market to compare to U.S. sales, we compared U.S. sales to the next
most similar foreign like product on the basis of the characteristics
and reporting instructions listed in the antidumping duty questionnaire
and instructions, or to constructed value (CV), as appropriate.
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 level of trade (LOT) as export price (EP) or the
constructed export price (CEP). The NV LOT is based on the starting
price of the sales in the comparison market or, when NV is based on CV,
that of the sales from which we derive selling, general and
administrative expenses and profit. See also 19 CFR 351.412(c)(1)(iii).
For CEP, it is the level of the constructed sale from the exporter to
an affiliated importer after the deductions required under section
772(d) of the Act. See 19 CFR 351.412(c)(1)(ii). For EP, it is the
starting price. See 19 CFR 351.412(c)(1)(i). In this review, all
mandatory respondents claimed only EP sales.
To determine whether NV sales are at a different LOT than EP, we
examine stages in the marketing process and selling functions along the
chain of distribution between the producer and the unaffiliated
customer. See 19 CFR 351.412(c)(2). If the comparison market sales are
at a different LOT and the difference affects price comparability, as
manifested in a pattern of consistent price differences between the
sales on which NV is based and comparison market sales at the LOT of
the export transaction, we make a LOT adjustment under section
773(a)(7)(A) of the Act.
CIPSA reported that all of its third-country and U.S. market sales
were made to importers/packers at essentially the same LOT. See CIPSA
AQR at A-10 to A-11. Patagonik also reported that all of its third-
country and U.S. market sales were made to importers/packers at
essentially the same LOT. See Patagonik AQR at A-11 to A-13. TransHoney
reported a single LOT for all U.S. and third-country market sales and
the same channel of distribution. See TransHoney AQR at A-13.
The Department has determined that differing channels of
distribution, alone, do not qualify as separate LOTs when selling
functions performed for each customer class are sufficiently similar.
See Notice of Preliminary Results and Partial Rescission of Antidumping
Duty Administrative Review: Ninth Administrative Review of the
Antidumping Duty Order on Certain Pasta from Italy, 71 FR 45017, 45022
(August 8, 2006) (unchanged in Notice of Final Results of the Ninth
Administrative Review of the Antidumping Duty Order on Certain Pasta
from Italy, 72 FR 7011 (February 14, 2007)); see also 19 CFR
351.412(c)(2). Patagonik and CIPSA reported a single LOT for all U.S.
and third-country sales. Patagonik and CIPSA claimed that their selling
activities in both markets are essentially identical, and nothing on
the record appears to suggest otherwise. TransHoney also reported a
single LOT for all its U.S. and third-country market sales. Therefore,
for TransHoney, Patagonik and CIPSA, we preliminarily determine that
all reported sales are made at the same LOT, and have not made a LOT
adjustment. See Patagonik AQR at A-11 to A-13, and CIPSA AQR at A-10 to
A-12. For a further discussion of LOT, see Memorandum to the File,
``Analysis Memorandum for Preliminary Results of the Antidumping Duty
Review on Honey from Argentina for Patagonik S.A., dated January 7,
2011 (Patagonik Preliminary Analysis Memorandum); Memorandum to the
File, ``Analysis Memorandum for
[[Page 2658]]
Preliminary Results of the Antidumping Duty Review on Honey from
Argentina for Compania Inversora Platense S.A., dated January 7, 2011
(CIPSA Preliminary Analysis Memorandum); and Memorandum to the File,
``Analysis Memorandum for Preliminary Results of the Antidumping Duty
Review on Honey from Argentina for TransHoney S.A., dated January 7,
2011 (TransHoney Preliminary Analysis Memorandum).
Date of Sale
Pursuant to 19 CFR 351.401(i), the Department normally will use the
date of invoice, as recorded in the exporter's or producer's records
kept in the ordinary course of business, as the date of sale, but may
use a date other than the date of invoice if it better reflects the
date on which the material terms of sale are established. For Patagonik
and CIPSA, the Department used the invoice date as the date of sale for
both its comparison and U.S. market sales for these preliminary
results. Patagonik and CIPSA assert that changes in ordered terms have
occurred in the past and their customers know they can request changes
to an order prior to shipment. See Patagonik's June 14, 2010,
supplemental questionnaire response at BC-5 and 6, and CIPSA's August
2, 2010, supplemental questionnaire response at 14, 22, and 23. As in
past segments of this proceeding, we determine that there is potential
for change to the essential terms of sale between the contract date and
invoice date and therefore invoice date continues to be the appropriate
date of sale with respect to Patagonik's sales in the U.S. and
comparison markets. Additionally, we preliminarily determine that
invoice date is the appropriate date of sale with respect to CIPSA's
sales in the U.S. and third-country markets because of the potential
for change to the essential terms of sale between the order date and
invoice date. However, in some instances for Patagonik'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 for those sales.
For TransHoney, the Department, consistent with its practice, used
the reported date of invoice as the date of sale for both the third-
country and U.S. markets. We thoroughly examined the date of sale issue
for TransHoney and found that changes to the essential terms of sale
can and did occur between the order date and invoice date, which is
coincident with the date of actual shipment. See TransHoney BQR at B-12
and TransHoney CQR at C-11; see also TransHoney AQR at A-16 and
TransHoney July 26, 2010, supplemental questionnaire response at 5-6.
Consequently, we preliminarily find that invoice date is the
appropriate date of sale with respect to TransHoney's and its
affiliated entity's \5\ sales in the U.S. and comparison markets.
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\5\ See ``Affiliation'' discussion section below.
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Export 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{time} .'' 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). For
purposes of this administrative review, CIPSA, Patagonik and TransHoney
classified their U.S. sales as EP because all of their sales were made
before the date of importation directly to unaffiliated purchasers in
the U.S. market. For purposes of these preliminary results, we have
accepted these classifications. We based EP on prices to unaffiliated
customers in the United States and made adjustments for movement
expenses.
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 Patagonik, CIPSA, and TransHoney's respective aggregate volume
of home market sales of the foreign like product to their respective
aggregate volume of U.S. sales of subject merchandise. Patagonik and
CIPSA's volume of home market sales were both greater than five percent
of the aggregate volume of U.S. sales; however, TransHoney had no home
market sales during the POR. As a result, we preliminarily find that
TransHoney's home market does not provide a viable basis for
calculating NV.
With respect to CIPSA and Patagonik, 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 the particular
market situation would not permit a proper comparison with EP and CEP.
In its supplemental questionnaires dated April 16, 2010, and July 8,
2010, the Department asked Patagonik and CIPSA to provide further
information in order to evaluate the market situation in Argentina with
respect to honey, to which responses were filed on May 18, 2010, and
August 2, 2010, respectively.
On October 6, 2010, the Department determined that a particular
market situation does, in fact, exist with respect to CIPSA's and
Patagonik's sales of honey in Argentina, rendering the Argentine market
inappropriate for purposes of determining NV.\6\ See Particular Market
Situation Memorandum.
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\6\ As noted above, TransHoney reported that it had no domestic
sales during the POR.
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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), TransHoney reported Germany as its
largest third country market, CIPSA reported Italy as its third-country
market during the POR, and Patagonik reported the United Kingdom as its
third-country market during the POR.
The record shows the aggregate quantity of TransHoney's and its
affiliate \7\ Einsof Trade S.A. (Einsof)'s sales to Germany is greater
than five percent of TransHoney's sales to the United States. In
addition, the Department preliminarily determines there is no evidence
on the record to demonstrate that these prices in Germany are not
representative. See TransHoney AQR at Exhibit A.1. Nor is
[[Page 2659]]
there evidence that any other third country market to which TransHoney
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 TransHoney or Einsof that would prevent a
proper comparison to EP. As a result, we preliminarily find
TransHoney's and its affiliate's sales to Germany serve as the most
appropriate basis for NV.
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\7\ See ``Affiliation'' section, infra.
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In addition to looking at volume, we also examined product
similarity for Patagonik and CIPSA, and found that the product sold to
the largest third country market was similar to that sold to the United
States. See Patagonik's May 18, 2010, supplemental section A
questionnaire response at A-1 to A-3, CIPSA AQR at A-17, and CIPSA's
June 9, 2010, section B questionnaire response at Exhibit B.3. Thus,
the Department determines to select Italy as the appropriate comparison
market for CIPSA and the United Kingdom as the appropriate comparison
market for Patagonik.
Therefore, NV for all companies is based on its third-country 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
LOT as the EP. We calculated NV as noted in the ``Price-to-Price
Comparisons'' section of this notice, infra.
2. Cost of Production
In the previous segment of this proceeding, the Department
disregarded sales made by Patagonik that were found to be below its
COP. See 06-07 Final Results. Therefore, pursuant to section
773(b)(2)(A)(ii) of the Act, there were reasonable grounds to believe
or suspect that the respondent made sales of the foreign like product
in the home market at prices below the COP within the meaning of
section 773(b) of the Act, as below cost sales made by Patagonik were
disregarded in the most recently completed investigation. Id. On June
22, 2010, the Department selected the two largest beekeeper suppliers
(by volume) of honey to Patagonik as cost respondents. See Cost
Respondents Selection Memorandum and Revision of Cost Respondent
Selection Memorandum. Accordingly, on July 14, 2010, the Department
requested that Patagonik's beekeepers and middleman respond to section
D (Cost of Production/Constructed Value) of the Department's
antidumping duty questionnaire.
A. Cost of Production Analysis
To calculate a COP and CV for the merchandise under consideration,
the Department selected the two largest beekeepers by volume and the
largest middleman, all of whom provided honey to Patagonik during the
POR. See Cost Respondents Selection Memorandum and Revision of Cost
Respondent Selection Memorandum.
B. Calculation of COP
We relied on the COP data submitted by the two beekeeper
respondents and the middleman in their questionnaire responses. For
additional details, see Memorandum to Neal M. Halper, Director of
Office of Accounting, ``Cost of Production and Constructed Value
Calculation Adjustments for the Preliminary Results--Patagonik S.A.'s
Beekeeper Respondents/Collector of Honey,'' dated January 7, 2011.
C. Test of Third-Country Prices and Results of the Cost of Production
Test
We calculated a simple average COP using the COP of Patagonik's two
respondent suppliers (Beekeeper 1 and Beekeeper 2) and the costs of the
middleman supplier. This average COP was applied to these beekeepers as
well as to all other beekeeper suppliers from whom information was not
requested. In determining whether to disregard third-country market
sales made at prices below the COP, in accordance with sections
773(b)(1)(A) and (B) of the Act, we examined: (1) Whether, within an
extended period of time, such sales were made in substantial
quantities; and (2) whether such sales were made at prices which
permitted the recovery of all costs within a reasonable period of time
in the normal course of trade. Where less than 20 percent of the
respondent's third-country market sales of a given model (i.e., control
number, or CONNUM) were at prices below the COP during the POR, we did
not disregard any below-cost sales of that model because we determined
that the below-cost sales were not made within an extended period of
time and in ``substantial quantities.'' Where 20 percent or more of the
respondent's third-country market sales of a given model were at prices
less than COP during the POR, we disregarded the below-cost sales
because: (1) They were made within an extended period of time in
``substantial quantities,'' in accordance with sections 773(b)(2)(B)
and (C) of the Act; and (2) based on our comparison of prices to the
COP for the POR, they were at prices which would not permit the
recovery of all costs within a reasonable period of time, in accordance
with section 773(b)(2)(D) of the Act.
We found Patagonik did not have any models for which 20 percent or
more of sales volume (by weight) were below cost during the POR.
Therefore we did not disregard any of Patagonik's third-country sales
and included all such sales in our calculation of NV.
Affiliation
According to section 771(33) of the Act, the Department determines
affiliation using a variety of criteria. TransHoney submitted, as part
of its sales database, the third-country market sales made by another
Argentine exporter, Einsof, a company with which TransHoney claims to
be affiliated. To determine affiliation between companies, the
Department analyzed TransHoney's responses and found that, pursuant to
section 771(33)(F) of the Act, TransHoney and Einsof are affiliated
because they are under common control. Specific matters related to the
common control are proprietary in nature. For further details, see
Memorandum to Richard Weible, ``Antidumping Duty Administrative Review
of Honey from Argentina: Analysis of the Relationship Between
TransHoney S.A. (TransHoney) and Einsof Trade S.A. (Einsof),'' dated
January 7, 2011 (TransHoney/Einsof Affliation Memorandum).
Furthermore, in certain circumstances the Department will treat two
or more affiliated producers as a single entity and determine a single
weighted-average margin for that entity, in order to determine margins
accurately and to prevent manipulation that would undermine the
effectiveness of the antidumping law. See 19 CFR 351.401(f).
While 19 CFR 351.401(f) applies only to producers, the Department
has found it to be instructive in determining whether non-producers
should be collapsed and has used the criteria in the regulation in its
analysis. See TransHoney/Einsof Affliation Memorandum; see e.g., Honey
from Argentina: Final Results of Antidumping Duty Administrative
Review, 70 FR 19926, 19926 (April 15, 2005); and Notice of Final
Determination of Sales at Less Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp From Brazil, 69 FR 76910 (December 23, 2004)
and accompanying Issues and Decision Memorandum at Comment 5. The U.S.
Court of International Trade (CIT) has found that collapsing exporters
is consistent with a ``reasonable
[[Page 2660]]
interpretation of the {antidumping duty{time} statute.'' See Hontex
Enterprises, Inc. v. United States, 248 F. Supp. 2d. 1323, 1338 (CIT
2003) (Hontex). The CIT further noted that ``to the extent that
Commerce has followed its market economy collapsing regulations the
{non-market economy (NME){time} exporter collapsing methodology is
necessarily permissible.'' See Hontex, 248 F. Supp. 2d at 1342.
During the POR, TransHoney and Einsof collectively purchased honey
for export sales from beekeepers and other collectors. See TransHoney
AQR at A-3, A-8, and A-9. As a result, none of the affiliated parties
possess production facilities that manufacture subject merchandise.
Rather, they act as resellers of the product. In addition, TransHoney
and Einsof did not operate independently as evidenced by shared
facilities, employees and management, See TransHoney AQR at A-10 and
TransHoney's June 8, 2010, supplemental questionnaire response at SA-5.
Given these factors, the Department preliminarily concludes that the
factors laid out in 19 CFR 351.401(f)(2)(ii) and (iii) are relevant to
the issue of whether TransHoney and Einsof are affiliated exporters/
resellers that should be treated as a single entity for purposes of
establishing dumping duties. The Department preliminarily finds that,
based on management overlap and intertwined relations, the relationship
between these companies is such that both should be treated as a single
entity for purposes of this administrative review and should receive a
single antidumping duty rate. For further details, see TransHoney/
Einsof Affiliation Memorandum.
With respect to Patagonik, Patagonik reported that under the
Department's rules, Patagonik is considered to be affiliated with Azul,
a honey collector, warehouser, processor, and reseller. See Patagonik's
AQR at A-4. Patagonik cites Azul's 2008 acquisition of the assets of
Colmenares Santa Rosa, the affiliated company from which Patagonik
previously obtained warehousing and inventory management services. Id.
Patagonik notes that during the POR, Azul only supplied Patagonik with
honey although Patagonik did purchase honey from other unaffiliated
beekeepers during the POR. Id. at A-3 and A-5. In addition, the testing
and classification of the honey is carried out by a laboratory owned by
Patagonik, which is located at Azul's warehouse. Id. at A-5. Patagonik
also reported that Azul was granted an export license in November 2009.
See Patagonik's November 29, 2010, supplemental questionnaire response
at 1.
In terms of ownership, Patagonik states Azul is owned by six equal
partners, one of whom, Mauricio Big[ntilde]e, is both president of Azul
and Patagonik, and manages certain operations of Azul. Id. at A-6. In
terms of Patagonik, the company states that Patagonik is owned by two
equal shareholders, but that Mauricio Big[ntilde]e served as president
of Patagonik and that the other investor had no day-to-day management
responsibilities during the POR. Id. at A-4 and 6.
The Department has analyzed Patagonik's responses and, pursuant to
section 771(33)(F) of the Act, determines that Patagonik and Azul are
affiliated. The Department analyzed whether to determine to treat
Patagonik and Azul as a single entity for purposes of this
administrative review and whether Patagonik and Azul should receive a
single antidumping duty rate. The Department preliminarily concludes
that the factors laid out in 19 CFR 351.401(f)(2)(ii) and (iii) are
relevant to the issue of whether Patagonik and Azul are affiliated
exporters/resellers that should be treated as a single entity. The
Department preliminarily finds, based on management overlap and
intertwined operations, as well as the fact that Azul also has an
export license and thus has the ability to export on its own account,
that these companies should be treated as a single entity for purposes
of this administrative review and should receive a single antidumping
duty rate. For further details, see Memorandum to Richard Weible,
``Antidumping Duty Administrative Review of Honey from Argentina:
Analysis of the Relationship Between Patagonik S.A. (Patagonik) and
Azul Agronegocios S.A. (Azul),'' dated January 7, 2011.
Price-to-Price Comparisons
Patagonik
We based NV on the third-country prices to unaffiliated purchasers.
We made adjustments, where applicable, for movement expenses in
accordance with section 773(a)(6)(B) of the Act. Where appropriate, we
made circumstance-of-sale adjustments for credit pursuant to section
773(a)(6)(C) of the Act. We also made adjustments, where applicable,
for other direct selling expenses, in accordance with section
773(a)(6)(C) of the Act. Additionally, we adjusted gross unit price for
billing adjustments and freight reveune, where applicable. See 19 CFR
351.401(c).
We preliminarily reclassified some of Patagonik's reported direct
selling expenses (namely, certain testing expenses) as indirect selling
expenses, consistent with our treatment of testing expenses in prior
reviews with respect to Patagonik. See, e.g., Honey From Argentina:
Preliminary Results of New Shipper Review, 71 FR 67850, 67853 (November
24, 2006) (New Shipper Preliminary Results) \8\ (unchanged in Honey
from Argentina: Final Results of New Shipper Review, 72 FR 19177 (April
17, 2007)). Thus, we have not included certain of Patagonik's testing
expenses among the direct selling expenses for which we made
adjustments in these preliminary results. For more information, see
Patagonik Preliminary Analysis Memorandum.
---------------------------------------------------------------------------
\8\ Where we note ``that certain claimed direct expenses in the
third-country market are being re-classified as either indirect
selling expenses or as part of the cost of production, for the
reasons outlined in the accompanying Analysis Memoranda.''
---------------------------------------------------------------------------
CIPSA
We calculated NV based on prices to unaffiliated purchasers in the
third-country market and matched U.S. sales to NV. We made adjustments,
where applicable, for movement expenses in accordance with section
773(a)(6)(B) of the Act. Where appropriate, we made circumstances-of-
sale adjustments for credit and other direct selling expenses (e.g.,
certain Argentine government-requested testing expenses) in accordance
with section 773(a)(6)(C) of the Act. Additionally, we reclassified one
of CIPSA's reported direct selling expenses (e.g., certain customer-
requested testing expenses) as an indirect selling expense. We also
disregarded a certain claimed direct selling expense (i.e., blending),
which we determined in prior decisions is more appropriately treated as
a COP expense. See, e.g., New Shipper Preliminary Results, 71 FR at
67853; see also CIPSA Preliminary Analysis Memorandum.
TransHoney
We calculated NV based on prices to unaffiliated purchasers on the
third-country market and matched U.S. sales to NV. We made adjustments,
where applicable, for movement expenses in accordance with section
773(a)(6)(B) of the Act. Where appropriate, we made circumstances-of-
sale adjustments for credit and other direct selling expenses (e.g.,
certain Argentine government-requested testing expenses) in accordance
with section 773(a)(6)(C) of the Act. Additionally, we reclassified one
of TransHoney's reported direct selling expenses (namely, certain
customer-requested testing expenses) as an indirect selling expense. We
also
[[Page 2661]]
disregarded a certain claimed direct selling expenses (i.e., blending),
which we determined in prior decisions is more appropriately treated as
a COP expense. See, e.g., New Shipper Preliminary Results, 71 FR at
67853; see also TransHoney Preliminary Analysis Memorandum.
With respect to TransHoney's request to incorporate organic honey
as a model match criterion, the Department preliminarily determines not
to consider organic source as a criterion for matching honey sold in
the third-country and U.S. markets because TransHoney did not provide
sufficient evidence (i.e., quantitative and qualitative features, etc.)
to support its claim that there is a physical difference reflected in a
cost differential between organic and non-organic honey. Therefore, we
found an insufficient basis to consider the request for purposes of our
product matching criteria. Accordingly, we have preliminarily
disregarded the field ORGANICT/U and are relying solely on the product
characteristics specified in the Department's questionnaire (i.e.,
type, color, and form).
Currency Conversions
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 Review
As a result of our review, we preliminarily determine the following
weighted-average dumping margins exists for the period December 1,
2008, through November 30, 2009:
------------------------------------------------------------------------
Weighted-Average margin
Exporter (percentage)
------------------------------------------------------------------------
Compania Inversora Platense S.A........... 0.00.
Patagonik S.A. and Azul Agronegocios S.A.. 0.27 (de minimis).
TransHoney S.A. and Einsof Trade S.A...... 0.00.
------------------------------------------------------------------------
Disclosure and Request for Public Hearing and Comments
The Department will disclose the calculations performed within five
days of the date of publication of this notice in accordance with 19
CFR 351.224(b). An interested party may request a hearing within thirty
days of publication. See 19 CFR 351.310(c). Any hearing, if requested,
will be held 37 days after the date of publication, or the first
business day thereafter, unless the Department alters the date pursuant
to 19 CFR 351.310(d). Interested parties may submit case briefs or
written comments no later than 30 days after the date of publication of
these preliminary results of review. Rebuttal briefs and rebuttals to
written comments, limited to issues raised in the case briefs and
comments may be filed no later than 35 days after the date of
publication of this notice. Parties who submit arguments in these
proceedings are requested to submit with the argument: (1) A statement
of the issues, (2) a brief summary of the argument, and (3) a table of
authorities. Further, parties submitting case briefs, rebuttal briefs,
and written comments should provide the Department with an additional
copy of the public version of any such argument on diskette. The
Department will issue final results of this administrative review,
including the results of our analysis of the issues in any such case
briefs, rebuttal briefs, and written comments or at a hearing, within
120 days of publication of these preliminary results.
Assessment
The Department shall determine, and CBP shall assess, antidumping
duties on all appropriate entries. In accordance with 19 CFR
351.212(b)(1), where entered values were reported, we calculated
importer-specific ad valorem assessment rates for the merchandise based
on the ratio of the total amount of antidumping duties calculated for
the examined sales made during the POR to the total customs value of
the sales used to calculate those duties. Where entered values were not
reported, we calculated importer- or customer- (where the importer was
unknown) specific per-unit assessment rates for the merchandise based
on the ratio of the total amount of antidumping duties calculated for
the examined sales made during the POR to the total quantity of the
sales used to calculate those duties. These rates will be assessed
uniformly on all of Patagonik's, CIPSA's, and TransHoney's entries made
during the POR. The Department intends to issue assessment instructions
to CBP 15 days after the date of publication of the final results of
this review.
The Department clarified its ``automatic assessment'' regulation on
May 6, 2003. See Antidumping and Countervailing Duty Proceedings:
Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This
clarification will apply to entries of subject merchandise during the
POR produced by companies included in these final results of review for
which the reviewed companies did not know their merchandise was
destined for the United States. In such instances, we will instruct CBP
to liquidate unreviewed entries at the all-others rate if there is no
rate for the intermediate company(ies) involved in the transaction.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon
completion of the final results of this administrative review for all
shipments of honey from Argentina entered, or withdrawn from warehouse,
for consumption on or after the publication date of the final results
of this administrative review, as provided by section 751(a)(1) of the
Act: (1) The cash deposit rate for each specific company listed above
will be that established in the final results of this review, except if
the rate is less than 0.50 percent and, therefore, de minimis within
the meaning of 19 CFR 351.106(c)(1), in which case the cash deposit
rate will be zero; (2) for any previously-reviewed or investigated
company not listed above, 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 or the less-than-fair-
value 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) if neither the exporter nor
the manufacturer is a firm covered in this or any previous review
conducted by the Department, the cash deposit rate will be the all-
others rate from the investigation (30.24 percent). See Notice of
Antidumping Duty Order; Honey From Argentina, 66 FR at 63673. These
cash deposit requirements, when
[[Page 2662]]
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) 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.
We are issuing and publishing this notice in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: January 7, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-790 Filed 1-13-11; 8:45 am]
BILLING CODE 3510-DS-P