[Federal Register Volume 75, Number 150 (Thursday, August 5, 2010)]
[Notices]
[Pages 47270-47274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-19286]
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DEPARTMENT OF COMMERCE
International Trade Administration
(A-570-855)
Certain Non-Frozen Apple Juice Concentrate from the People's
Republic of China: Notice of Preliminary Results of the New Shipper
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting a
new shipper review (``NSR'') of the antidumping duty order, covering
the period of review (``POR'') of June 1, 2009, through January 20,
2010. If these preliminary results are adopted in our final results of
review, we will instruct U.S. Customs and Border Protection (``CBP'')
to assess antidumping duties on entries of subject merchandise during
the POR for which the importer-specific assessment rates are above de
minimis.
[[Page 47271]]
EFFECTIVE DATE: August 5, 2010.
FOR FURTHER INFORMATION CONTACT: Alexis Polovina, 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: (202) 482-3927.
SUPPLEMENTARY INFORMATION:
General Background
On June 5, 2000, the Department published in the Federal Register
the antidumping duty order on certain non-frozen apple juice
concentrate from the People's Republic of China (``PRC''). See Notice
of Amended Final Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Certain Non-Frozen Apple Juice Concentrate From
the People's Republic of China, 65 FR 35606 (June 5, 2000) (``Order'').
On December 15, 2009, pursuant to section 751(a)(2)(B)(i) of the Tariff
Act of 1930, as amended (``Act''), and 19 CFR 351.214(c), the
Department received a NSR request from Lingbao Xinyuan Fruit Industry
Co., Ltd. (``LXFI''). LXFI certified that it is a producer and exporter
of the subject merchandise upon which the request was based. On
February 4, 2010, the Department initiated the requested antidumping
duty NSR. See Certain Non-Frozen Apple Juice Concentrate from the
People's Republic of China: Initiation of Antidumping Duty New Shipper
Review, 75 FR 5763 (February 4, 2010).
On February 16, 2010, the Department issued original questionnaires
to LXFI. Between March 9, 2010, and July 9, 2010, LXFI submitted
responses to the original sections A, C, and D questionnaires and
supplemental sections A, C, and D questionnaires.
Surrogate Country and Surrogate Values
On March 2, 2010, the Department sent interested parties a letter
requesting comments on surrogate country selection and information
pertaining to valuing factors of production (``FOP''). On April 22,
2010, LXFI submitted comments on the surrogate country. On June 23,
2010, LXFI submitted surrogate value data. No other party submitted
surrogate country or surrogate value data.
Scope of the Order
The product covered by this order is certain non-frozen apple juice
concentrate. Apple juice concentrate is defined as all non-frozen
concentrated apple juice with a brix scale of 40 or greater, whether or
not containing added sugar or other sweetening matter, and whether or
not fortified with vitamins or minerals. Excluded from the scope of
this order are: frozen concentrated apple juice; non-frozen
concentrated apple juice that has been fermented; and non-frozen
concentrated apple juice to which spirits have been added.
The merchandise subject to this order is classified in the
Harmonized Tariff Schedule of the United States (``HTSUS'') at
subheadings 2106.90.52.00, and 2009.70.00.20 before January 1, 2002,
and 2009.79.00.20 after January 1, 2002. Although the HTSUS subheadings
are provided for convenience and customs purposes, the written
description of the scope of the order is dispositive.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME'') country. See,
e.g., Pure Magnesium from the People's Republic of China: Final Results
of Antidumping Duty Administrative Review, 73 FR 76336 (December 16,
2008); and Frontseating Service Valves From the People's Republic of
China: Final Determination of Sales at Less Than Fair Value and Final
Negative Determination of Critical Circumstances, 74 FR 10886 (March
13, 2009). In accordance with section 771(18)(C)(i) of the Act, any
determination that a foreign country is an NME country shall remain in
effect until revoked by the administering authority. None of the
parties to this proceeding have contested such treatment. Accordingly,
we calculated NV in accordance with section 773(c) of the Act, which
applies to NME countries.
Separate Rate Determinations
A designation as a NME remains in effect until it is revoked by the
Department. See section 771(18)(C) of the Act. Accordingly, there is a
rebuttable presumption that all companies within the PRC are subject to
government control and, thus, should be assessed a single antidumping
duty rate. It is the Department's standard policy to assign all
exporters of the merchandise subject to review in NME countries a
single rate unless an exporter can affirmatively demonstrate an absence
of government control, both in law (de jure) and in fact (de facto),
with respect to exports. To establish whether a company is sufficiently
independent to be entitled to a separate, company-specific rate, the
Department analyzes each exporting entity in an NME country under the
test established in the Final Determination of Sales at Less than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991) (``Sparklers''), as amplified by the Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide'').
A. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
In this review, LXFI submitted a complete response to the separate
rates section of the Department's NME questionnaire. The evidence
submitted by LXFI includes government laws and regulations on corporate
ownership, business licenses, and narrative information regarding the
company's operations and selection of management. The evidence provided
by LXFI supports a finding of a de jure absence of government control
over its export activities. Thus, we believe that the evidence on the
record supports a preliminary finding of an absence of de jure
government control based on: (1) an absence of restrictive stipulations
associated with the exporter's business license; (2) the legal
authority on the record decentralizing control over the respondent; and
(3) other formal measures by the government decentralizing control of
companies.
B. Absence of De Facto Control
The absence of de facto government control over exports is based on
whether the respondent: (1) sets its own export prices independent of
the government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide,
59 FR at 22587; Sparklers, 56 FR at 20589; see also Notice of Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
In this review, LXFI submitted evidence indicating an absence of de
[[Page 47272]]
facto government control over their export activities. Specifically,
this evidence indicates that: (1) the company sets its own export
prices independent of the government and without the approval of a
government authority; (2) the company retains the proceeds from its
sales and makes independent decisions regarding the disposition of
profits or financing of losses; (3) the company has a general manager,
branch manager or division manager with the authority to negotiate and
bind the company in an agreement; (4) the general manager is selected
by the board of directors or company employees, and the general manager
appoints the deputy managers and the manager of each department.
Therefore, the Department preliminarily finds that LXFI has established
that it qualifies for a separate rate under the criteria established by
Silicon Carbide and Sparklers.
New Shipper Review Bona Fide Analysis
Consistent with the Department's practice, we investigated the bona
fide nature of the sale made by LXFI for this NSR. In evaluating
whether a single sale in a NSR is commercially reasonable, and
therefore bona fide, the Department considers, inter alia, such factors
as: (1) timing of the sale; (2) price and quantity; (3) the expenses
arising from the transaction; (4) whether the goods were sold at a
profit; and (5) whether the transaction was made on an arms-length
basis. See Tianjin Tiancheng Pharmaceutical Co. v. the United States,
366 F. Supp. 2d R46, 1250 (CIT 2005). Accordingly, the Department
considers a number of factors in its bona fide analysis, ``all of which
may be specific to the commercial realities surrounding an alleged sale
of subject merchandise.'' See Hebei New Donghua Amino Acid Co. v. the
United States, 374 F. Supp. 2d 1333, 1342 (CIT 2005). In examining
LXFI's sale in relation to these factors, the Department observed no
evidence that would indicate that this sale was not bona fide.
Therefore, we preliminarily find that the new shipper sale by LXFI was
made on a bona fide basis. See Memorandum to the File through Alex
Villanueva, Program Manager, Office 9 from Alexis Polovina, Case
Analyst, Office 9: Antidumping Duty New Shipper Review of Certain Non-
Frozen Apple Juice Concentrate from the People's Republic of China:
Bona Fide Nature of the Sale Under Review for Lingbao Xinyuan Fruit
Industry Co., Ltd. (``LXFI''), dated July 30, 2010.
Based on our investigation into the bona fide nature of the sale,
the questionnaire responses submitted by LXFI and the company's
eligibility for a separate rate (see Separate Rates Determination
section above), we preliminarily determine that LXFI has met the
requirements to qualify as a new shipper during this POR. Therefore,
for the purposes of these preliminary results of review, we are
treating LXFI's sale of subject merchandise to the United States as an
appropriate transaction for this NSR.
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base normal value (``NV''),
in most circumstances, on the NME producer's FOPs, valued in a
surrogate market economy country or countries considered to be
appropriate by the Department. In accordance with section 773(c)(4) of
the Act, in valuing the FOPs, the Department shall utilize, to the
extent possible, the prices or costs of FOPs in one or more market
economy countries that are: (1) at a level of economic development
comparable to that of the NME country; and (2) significant producers of
comparable merchandise.
The Department determined that India, Philippines, Indonesia,
Thailand, Ukraine, and Peru are countries comparable to the PRC in
terms of economic development.\1\ Once it has identified economically
comparable countries, the Department's practice is to select an
appropriate surrogate country from the list based on the availability
and reliability of data from the countries. See Department Policy
Bulletin No. 04.1: Non-Market Economy Surrogate Country Selection
Process (March 1, 2004).
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\1\ See Memorandum from Kelly Parkhill, Acting Director, Office
of Policy, to Alex Villanueva, Program Manager, China/NME Group,
Office 9: Request for a List of Surrogate Countries for the New
Shipper Review of the Antidumping Duty Order on Certain Non-Frozen
Apple Juice Concentrate (``Apple Juice'') from the People's Republic
of China (``PRC''), dated February 16, 2010.
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Absent world apple juice concentrate production data, the
Department considered whether any country listed in the Surrogate
Country List was a net-exporter (i.e., exports more apple juice
concentrate than it imports) to identify producers of apple juice
concentrate. We found that none of the countries listed in the
Surrogate Country List were net-exporters of apple juice concentrate.
Therefore, the Department considered other countries not listed in the
Surrogate Country List and determined that Poland was a net-exporter of
apple juice concentrate.
In this proceeding, we received comments regarding surrogate
country selection only from LXFI, which supports the selection of
Poland. The record also contains surrogate value information from
Poland for most inputs, including juice apples, the main input for
producing apple juice concentrate. In addition, we have surrogate
financial ratios from a Polish juice company. Of the countries that are
significant producers of identical merchandise, the record contains
reliable surrogate value information from Poland. Therefore, for these
preliminary results, we have selected Poland as the surrogate country.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping new shipper review, interested parties may submit
publicly available information to value FOPs within 20 days after the
date of publication of these preliminary results.
U.S. Price
For LXFI's sale to the United States, we used the export price
(``EP'') methodology, pursuant to section 772(a) of the Act, because
the first sale to an unaffiliated purchaser was made prior to
importation, and CEP was not otherwise warranted by the facts on the
record. We calculated EP based on the price to unaffiliated purchasers
in the United States.
In accordance with section 772(c) of the Act, as appropriate, we
deducted from the starting price to unaffiliated purchasers foreign
inland freight and containerization. We have reviewed each of these
services and expenses reported by LXFI and find that they were provided
by an NME vendor or paid for using PRC currency. Thus, we based the
deduction of these movement charges on surrogate values. See Memorandum
to the File through Alex Villanueva, Program Manager, Office 9 from
Alexis Polovina, Case Analyst, Office 9: Antidumping Duty New Shipper
Review of Certain Non-Frozen Apple Juice Concentrate from the People's
Republic of China: Surrogate Values for the Preliminary Results, dated
July 30, 2010 (``Surrogate Value Memo'') for details regarding the
surrogate values for movement expenses.
Normal Value
1. Methodology
Section 773(c)(1)(B) of the Act provides that the Department shall
determine the NV using a FOP methodology if the merchandise is exported
from an NME country and the information does not permit the
[[Page 47273]]
calculation of NV using home-market prices, third-country prices, or
constructed value under section 773(a) of the Act. The Department bases
NV on the FOPs because the presence of government controls on various
aspects of NMEs renders price comparisons and the calculation of
production costs invalid under the Department's normal methodologies.
2. Factor Valuations
In past cases, it has been the Department's practice to value
various FOPs using import statistics of the primary selected surrogate
country from World Trade Atlas (``WTA''), as published by Global Trade
Information Services (``GTIS''). See Certain Preserved Mushrooms from
the People's Republic of China: Preliminary Results of Antidumping Duty
New Shipper Review, 74 FR 50946, 50950 (October 2, 2009). However, in
October 2009, the Department learned that the data reported in the
Global Trade Atlas (``GTA'') software, published by GTIS, is reported
to the nearest digit and thus there is not a loss of data by rounding,
as there is with the data reported by the WTA software. Consequently,
the Department will now obtain import statistics from GTA for valuing
various FOPs.
Furthermore, in accordance with the OTCA 1988 legislative history,
the Department continues to apply its long-standing practice of
disregarding surrogate values if it has a reason to believe or suspect
the source data may be subsidized.\2\ In this regard, the Department
has previously found that it is appropriate to disregard such prices
from India, Indonesia, South Korea and Thailand because we have
determined that these countries maintain broadly available, non-
industry specific export subsidies.\3\ Based on the existence of these
subsidy programs that were generally available to all exporters and
producers in these countries at the time of the POR, the Department
finds that it is reasonable to infer that all exporters from India,
Indonesia, South Korea and Thailand may have benefitted from these
subsidies.
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\2\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) (``OTCA 1988'') at 590.
\3\ See e.g., Expedited Sunset Review of the Countervailing Duty
Order on Carbazole Violet Pigment 23 from India, 75 FR 13257 (March
19, 2010) and accompanying Issues and Decision Memorandum at pages
4-5; Expedited Sunset Review of the Countervailing Duty Order on
Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia, 70
FR 45692 (August 8, 2005) and accompanying Issues and Decision
Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat
Products from the Republic of Korea: Final Results of Countervailing
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and
accompanying Issues and Decision Memorandum at Comment 1, pages 17,
19-20; See Certain Hot-Rolled Carbon Steel Flat Products from
Thailand: Final Results of Countervailing Duty Determination, 66 FR
50410 (October 3, 2001) and accompanying Issues and Decision
Memorandum at Comment 1.
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In accordance with section 773(c) of the Act, we calculated NV
based on FOPs reported by LXFI during the POR. To calculate NV, we
multiplied the reported per-unit factor-consumption rates by publicly
available Polish surrogate values. In selecting the surrogate values,
we considered the quality, specificity, and contemporaneity of the
data. As appropriate, we adjusted input prices by including freight
costs to make them delivered prices. Specifically, we added to Polish
import surrogate values a surrogate freight cost using the shorter of
the reported distance from the domestic supplier to the factory of
production or the distance from the nearest seaport to the factory of
production where appropriate. This adjustment is in accordance with the
Court of Appeals for the Federal Circuit's decision in Sigma Corp. v.
United States, 117 F. 3d 1401, 1407-1408 (Fed. Cir. 1997). We selected
Poland as the surrogate country for the reasons explained above in the
``Surrogate Country'' section. However, where we were unable to find
Polish data to value particular FOPs, we valued these inputs using
public information on the record from India. We valued inland freight,
electricity, coal, water, and containerization using Indian surrogate
values.
Polish surrogate values were valued in USD and no conversion was
needed. Indian surrogate values denominated in Rupees were converted to
USD using the applicable average exchange rate based on exchange rate
data from the Department's website. For further details regarding the
surrogate values used for these preliminary results, see the Surrogate
Value Memo.
As a consequence of the CAFC's ruling in Dorbest II, the Department
is no longer relying on the regression-based wage rate described in 19
CFR 351.408(c)(3). The Department is continuing to evaluate options for
determining labor values in light of the recent CAFC decision. For
these preliminary results, we have calculated an hourly wage rate to
use in valuing LXFI's reported labor input by averaging earnings and/or
wages in countries that are economically comparable to the PRC and that
are significant producers of comparable merchandise. See the Surrogate
Value Memo at 5-9 and attachment 7, for further information on the
calculation of the wage rate.
The Department relied on data from the following countries to
arrive at its wage rate in these preliminary results: Albania, Ecuador,
Egypt, El Salvador, Fiji, Guatemala, Guyana, Honduras, India,
Indonesia, Mongolia, Nicaragua, Paraguay, Peru, Philippines, Sri Lanka,
Thailand, and Ukraine. The Department calculated a simple average of
the wage rates from these 18 countries. This resulted in a wage rate
derived from comparable economies that are also significant producers
of the comparable merchandise, consistent with the CAFC's ruling in
Dorbest II and the statutory requirements of section 773(c) of the Act.
Preliminary Results of the Review
As a result of our review, we preliminarily find that the following
margins exist for the period June 1, 2009, through January 20, 2010:
Certain Non-Frozen Apple juice from the PRC
------------------------------------------------------------------------
Weighted-Average
Manufacturer/Exporter Margin (Percent)
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LXFI................................................ 0.00
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Disclosure
The Department will disclose to parties of this proceeding the
calculations performed in reaching the preliminary results within five
days of the date of publication of this notice in accordance with 19
CFR 351.224(b).
Comments
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of this administrative review, interested parties may submit publicly
available information to value FOPs within 20 days after the date of
publication of these preliminary results. Interested parties must
provide the Department with supporting documentation for the publicly
available information to value each FOP. Additionally, in accordance
with 19 CFR 351.301(c)(1), for the final results of this NSR,
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
[[Page 47274]]
corrects information recently placed on the record.\4\
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\4\ 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.
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Interested parties may submit case briefs and/or written comments
no later than 30 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.
Assessment Rates
Upon completion of the final results, pursuant to 19 CFR
351.212(b), the Department will determine, and CBP shall assess,
antidumping duties on all appropriate entries on a weighted-average
basis. The Department intends to issue assessment instructions to CBP
15 days after the date of publication of the final results of review.
If these preliminary results are adopted in our final results of
review, the Department shall determine, and CBP shall assess,
antidumping duties on all appropriate entries. Pursuant to 19 CFR
351.212(b)(1), we will calculate importer-specific (or customer) per-
unit duty assessment rates. We will instruct CBP to assess antidumping
duties on all appropriate entries covered by this review if any
importer-specific assessment rate calculated in the final results of
this NSR is above de minimis.
Cash-Deposit Requirements
The following cash deposit requirements, when imposed, will be
effective upon publication of the final results of this NSR for all
shipments of subject merchandise from LXFI 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 LXFI, the cash deposit rate will
be the rate that is established in the final results of this NSR; (2)
for subject merchandise exported by LXFI but not manufactured by LXFI,
the cash deposit rate will continue to be the PRC-wide rate (i.e.,
51.74 percent); and (3) for subject merchandise manufactured by LXFI,
but exported by any other party, the cash deposit rate will be the rate
applicable to the exporter. If the cash deposit rate calculated in the
final results is zero or de minimis, no cash deposit will be required
for those entries of subject merchandise both produced and exported by
LXFI. 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: July 30, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-19286 Filed 8-4-10; 8:45 am]
BILLING CODE 3510-DS-S