Import Administration, International Trade Administration, Department of Commerce.
Notice of antidumping duty order and amendment to final determination.
December 10, 2001.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Angelica Mendoza, Charles Rast, or Donna Kinsella at (202) 482-3019, (202) 482-1324, or (202) 482-0194, respectively; Antidumping and Countervailing Duty Enforcement Group III, Office Eight, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act. In addition, unless otherwise indicated, all citations to the Department of Commerce (Department) regulations are to the regulations codified at 19 CFR part 351 (April 2000). Start Printed Page 63671
Scope of Order
For purposes of this investigation, 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 this investigation 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 Service (Customs) purposes, the Department's written description of the merchandise under investigation is dispositive.
Amendment to the Final Determination
On September 26, 2001, the Department determined that honey from the People's Republic of China (PRC) is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735(a) of the Tariff Act. See Notice of Final Determination of Sales at Less Than Fair Value; Honey from the People's Republic of China, 66 FR 50608 (October 4, 2001). On October 10, 2001, respondents Zhejiang Native Produce and Animal By-Products Import and Export Corporation (Zhejiang), Inner Mongolia Autonomous Region Native Produce and Animal By-Products Import and Export Corporation (Inner Mongolia), and Kunshan Foreign Trade Co., Ltd. (Kunshan), filed timely allegations that the Department made ministerial errors in the final determination. On October 15, 2001, petitioners filed timely comments in rebuttal to respondents' ministerial error allegations.
Section 735(e) of the Act defines a “ministerial error” to include “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” See also section 351.224(f) of the Department's regulations.
Comment 1: Zhejiang, Inner Mongolia, and Kunshan argue that the Department erred in its calculation of total raw honey costs by including the freight expenses associated with raw honey purchased during the period of investigation (POI). They argue that the Department should have included only the freight expenses associated with raw honey consumed in the production of processed honey during the POI.
Petitioners argue that, contrary to respondents' claims, the Department did in fact calculate raw honey expenses based on the freight costs associated with raw honey consumed in the production of processed honey during the POI.
Department's Position: We disagree with Zhejiang, Inner Mongolia, and Kunshan that our method of calculating inland freight for raw honey constitutes a ministerial error. Our computations for each respondent are shown in the final determination analysis memoranda. See Memorandum to the File from Fred Baker through Donna Kinsella, dated September 26, 2001 at Appendix V and Memoranda to the File from Angelica Mendoza through Donna Kinsella, dated September 26, 2001 at Appendix V. These memoranda show that we used both raw honey purchase volumes and raw honey consumption volumes in calculating the total raw honey inland freight costs. We used the volumes of raw honey consumed (column E) to represent the quantity to which freight costs should be attributed. We used the volumes of raw honey purchased (column C) as the basis for allocating a percentage of the total cost of inland freight to each individual supplier of raw honey. The volumes purchased from each supplier during the POI were the only supplier-specific volumes on the record, and were identified in the analysis memorandum for each company as the quantities we intended to use for allocation purposes.
Comment 2: Kunshan argues that the Department used an incorrect surrogate labor rate to calculate direct labor, indirect labor, and packing labor.
Department's Position: We agree. In the final determination, the Department calculated Kunshan's direct labor, indirect labor, and packing labor, using a standard country-wide rate from the Department's website, but from a country other than the PRC. We have corrected this error in this amended final determination.
We are amending the final determination of the antidumping duty investigation of honey from the PRC to reflect the correction of a ministerial error with respect to Kunshan. As a result of this correction the margin has also changed for the four cooperative respondents who were not selected as mandatory respondents but who were given separate rates. Those four respondents are High Hope, Shanghai Eswell, Anhui, and Henan. The revised final weighted-average dumping margins are shown below.
Antidumping Duty Order
On November 19, 2001, the U.S. International Trade Commission (the ITC) notified the Department of its final determination, pursuant to section 735(b)(1)(A)(i) of the Act, that an industry in the United States is materially injured by reason of LTFV imports of subject merchandise from the PRC. In addition, the ITC made an affirmative determination that critical circumstances exist with respect to subject imports from the PRC for which the Department made affirmative critical circumstances determinations. In rendering its critical circumstances determination, we note that three ITC Commissioners found that critical circumstances exist with regard to such merchandise, and three Commissioners found that critical circumstances do not exist with regard to imports of subject merchandise from the PRC. Section 771(11) of the Act provides that if the Commissioners voting on a determination “are evenly divided as to whether the determination should be affirmative or negative, the ITC shall be deemed to have made an affirmative determination.” We consider that the tie-vote provision in section 771(11) applies to critical circumstances determinations.
We note that critical circumstances decisions are referred to as both “determinations” and “findings” in the statute. Moreover, while the legislative history will sometimes refer to the ITC's critical circumstances decisions as “findings” (see, e.g., H.R. Rep. No. 96-317, at 69 (1979), these decisions are more often identified as “determinations.” See, e.g., S. Rep. No. 96-249, at 74 (1979); H.R. Rep. No. 103-826 (Part 1), at 50 (1994). Since the terms “findings” and “determinations” are used interchangeably in the statute and legislative history, the use of one or the other does not preclude the application of section 771(11) to the ITC's consideration of the critical circumstances issue.
Congress promulgated the critical circumstances provision in order “to provide prompt relief to domestic industries suffering from large volumes of, or a surge over a short period of, imports and to deter exporters whose merchandise is subject to an investigation from circumventing the intent of the law by increasing their exports to the United States during the period between initiation of an investigation and a preliminary determination by the [Department].” H.R. Rep. 96-317, at 63 (1979). In Start Printed Page 63672amending the critical circumstances provisions in 1988, Congress developed “an improved critical circumstances procedure [that] will significantly strengthen antidumping and countervailing duty procedures by revitalizing a provision that has up to now been ineffective.” H.R. Rep. No. 100-576, at 611 (1988). Considering this legislative history, we conclude that Congress did not intend to limit the availability of retroactive relief in cases such as this one to only those instances where two-thirds of the ITC votes to grant such relief. Moreover, as noted above, the ITC itself explicitly stated in its final injury determination that it made “an affirmative determination that critical circumstances exist with respect to subject imports from China for which Commerce made affirmative critical circumstances determinations.” See Honey from Argentina and China, Inv. Nos. 701-TA-402 and 731-TA-892-893 (Final), USITC Pub., 3470 (November 19, 2001).
Therefore, for all the reasons discussed above, we consider the ITC to have made an affirmative critical circumstances determination. The Department's finding in this regard is consistent with the Department's treatment of this issue in previous critical circumstances cases involving tie votes at the ITC. See Notice of Amendment of Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Preserved Mushrooms from the PRC, 64 FR 8308 (February 19, 1999) and Notice of Antidumping Order: Coumarin from the People's Republic of China, 60 FR 7751 (February 9, 1995).
In accordance with section 736(a)(1) of the Act, the Department will direct Customs to assess, upon further advice by the Department, antidumping duties equal to the amount by which the normal value of the subject merchandise exceeds the U.S. price of the subject merchandise for all relevant entries of honey from the PRC. These antidumping duties will be assessed on all unliquidated entries of honey from the PRC entered, or withdrawn from warehouse, for consumption on or after May 11, 2001, the date on which the Department published its notice of preliminary determination for this investigation in the Federal Register, except for subject merchandise exported by Kunshan, High Hope, Zhejiang, or other companies not specifically named below. For merchandise exported by Kunshan, High Hope, Zhejiang, or by other companies not specifically named below, we are directing the Customs Service to assess antidumping duties on all unliquidated entries of the subject merchandise that are entered, or withdrawn from warehouse, for consumption on or after February 10, 2001, the date 90 days prior to the date of publication of the preliminary determination in the Federal Register (see Notice of Preliminary Determination of Sales at Less Than Fair Value; Honey from the PRC, 66 FR 24101, (May 11, 2001)), in accordance with the critical circumstances finding in the final determination.
On or after the date of publication of this notice in the Federal Register, Customs must require, at the same time as importers would normally deposit estimated duties on this merchandise, a cash deposit equal to the estimated weighted-average antidumping duty margins noted below:
|Exporter/Manufacture||Margin (percent)||Critical circumstances|
The “PRC-wide” rate applies to all exporters in the PRC of subject merchandise not specifically listed above.
In accordance with section 735(c)(1)(B) of the Act, we are directing the United States Customs Service to continue suspending liquidation of all imports of the subject merchandise from the PRC. Customs shall require a cash deposit or the posting of a bond equal to the weighted-average amount by which normal value exceeds the export price as indicated in the chart above. These suspension-of-liquidation instructions will remain in effect until further notice.
This notice constitutes the antidumping duty order with respect to honey from the PRC, pursuant to section 736(a) of the Act. Interested parties may contact the Department's Central Records Unit, room B-099 of the main Commerce building, for copies of an updated list of the antidumping duty orders currently in effect.
This determination and order are issued and published in accordance with sections 735(d), 736(a), and 777(i)(1) of the Act.Start Signature
Dated: November 28, 2001.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 01-30468 Filed 12-7-01; 8:45 am]
BILLING CODE 3510-DS-P