[Federal Register Volume 65, Number 72 (Thursday, April 13, 2000)]
[Notices]
[Pages 19873-19876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-9240]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-855]


Notice of Final Determination of Sales at Less Than Fair Value: 
Certain Non-Frozen Apple Juice Concentrate from the People's Republic 
of China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: The Department of Commerce is conducting an antidumping duty 
investigation of non-frozen apple juice concentrate from the People's 
Republic of China. We determine that sales have been made at less than 
fair value. The estimated dumping margins are shown in the Continuation 
of Suspension of Liquidation section of this notice.

EFFECTIVE DATE: April 13, 2000.

FOR FURTHER INFORMATION CONTACT: Craig Matney, Sally Hastings, or 
Annika O'Hara, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1778, 482-3464, or 482-3798, respectively.

SUPPLEMENTARY INFORMATION:

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 (``URAA''). In addition, unless 
otherwise indicated, all citations to the Department of Commerce's 
(``the Department's'') regulations refer to the regulations codified at 
19 CFR Part 351 (April 1998).

Case History

    Since the preliminary determination (see 64 FR 65675 (November 23, 
1999) (``Preliminary Determination'')), the following events have 
occurred:
    On November 24, 1999, we received an allegation from the 
respondents in this investigation regarding certain clerical errors in 
the preliminary determination. On December 27, 1999, we published in 
the Federal Register a notice of our amended preliminary determination, 
postponement of the final determination, and extension of provisional 
measures (64 FR 72316).
    On January 10, 2000, one of the respondents, Shaanxi Machinery & 
Equipment Import & Export Corporation (``SAAME''), notified the 
Department of its withdrawal from the investigation.
    In January and February 2000, we conducted verification of the 
questionnaire responses submitted by the following respondents: Yantai 
North Andre Juice Co., Ltd. (``North Andre''); Shaanxi Haisheng Fresh 
Fruit Juice Co., Ltd. (``Haisheng''); Sanmenxia Lakeside Fruit Juice 
Co., Ltd. (``Lakeside''); Shandong Zhonglu Juice Group Co., Ltd. 
(``Zhonglu''); Yantai Oriental Juice Co., Ltd. (``Oriental''); and 
Qingdao Nannan Foods Co., Ltd. (``Nannan''). We issued the verification 
reports during February and March 2000.
    Pursuant to the Department's request, supplemental information 
regarding surrogate values was submitted on February 25 and 28, 2000, 
respectively, by the respondents and by Coloma Frozen Foods, Inc., 
Green Valley Packers, Knouse Foods Cooperative, Inc., Mason County 
Fruit Packers Co-op, Inc., and Tree Top Inc. (hereinafter collectively 
referred to as ``the petitioners'').
    The petitioners and the respondents filed case and rebuttal briefs, 
respectively, on March 9 and 14, 2000. At the request of the 
respondents, the Department held a public hearing on March 17, 2000.

Scope of the Investigation

    For purposes of this investigation, the product covered by the 
scope is 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 investigation 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 investigation 
is classified in the HTSUS at subheadings 2009.70.00.20 and 2106.90.52. 
Although the HTSUS subheading is provided for convenience and customs 
purposes, the written description of the merchandise under 
investigation is dispositive.

Period of Investigation

    The period of this investigation (``POI'') is October 1, 1998, 
through March 31, 1999.

Nonmarket Economy Country and Market-Oriented Industry Status

    The Department has treated the People's Republic of China (``PRC'') 
as a nonmarket economy (``NME'') country in all past antidumping 
investigations. See, e.g., Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Preserved Mushrooms from the People's 
Republic of China, 63 FR 72255 (December 31, 1998) (``Mushrooms''). 
Under section 771(18)(C) of the Act, this NME designation remains in 
effect until it is revoked by the Department.
    The respondents in this investigation have not requested a 
revocation of the PRC's NME status and no further information has been 
provided that would lead to such a revocation. Therefore, we have 
continued to treat the PRC as an NME in this investigation.
    Furthermore, no interested party has requested that the NFAJC 
industry in the PRC be treated as a market-oriented industry and no 
further information has been provided that would lead to such a 
determination. Therefore, we have not treated the NFAJC industry in the 
PRC as a market-oriented industry in this investigation.

Separate Rates

    All responding companies have requested separate, company-specific 
antidumping duty rates. (Because it has withdrawn from participation in 
the investigation, SAAME is no longer considered a ``responding 
company.'' See ``Use of Facts Available'' section, below.) In our 
Preliminary Determination, we preliminarily found that all responding 
companies had met the criteria for the application of separate 
antidumping duty rates. See 64 FR at 65677-78. At verification, we 
found no discrepancies with the information provided in the 
questionnaire responses of responding companies. We have not received 
any other information since the Preliminary Determination which would 
warrant reconsideration of our separate rates determinations with 
respect to these companies. We, therefore, determine that the 
responding companies in this investigation should be assigned 
individual dumping margins.

Antidumping Duty Rate for Those Producers/Exporters That Responded 
Only to the Separate Rates Questionnaire

    For those producers/exporters that responded to our separate rates

[[Page 19874]]

questionnaire (i.e., Xianyang Fuan Juice Co., Ltd. (``Fuan''); Xian 
Asia Qin Fruit Co., Ltd. (``Asia Fruit''); Changsha Industrial Products 
& Minerals Import & Export Corporation (``Changsha''); and Shandong 
Foodstuffs Imports & Export Corporation (``Shandong Foodstuffs'')), but 
did not respond to the full antidumping questionnaire because they were 
not selected to respond or because they did not submit a voluntary 
response, we have calculated a weighted-average margin based on the 
rates calculated for the fully-examined responding companies, except 
that we did not include rates which were zero (i.e., North Andre), 
based entirely on facts available (i.e., the PRC-wide rate), or for 
voluntary respondents (i.e., Zhonglu and Lakeside). See, e.g., Notice 
of Final Determination of Sales at Less Than Fair Value: Bicycles from 
the People's Republic of China, 61 FR 19026 (April 30, 1996) 
(``Bicycles from the PRC'').

PRC-Wide Rate

    As stated in the preliminary determination, information on the 
record of this investigation indicates that there are numerous 
producers/exporters of the subject merchandise in the PRC in addition 
to the companies participating in this investigation. U.S. import 
statistics show that the responding companies did not account for all 
imports of NFAJC into the United States from the PRC. Given this 
discrepancy, it appears that not all PRC exporters of NFAJC responded 
to our questionnaire. Accordingly, we are applying a single antidumping 
deposit rate (``the PRC-wide rate'') to all NFAJC exporters in the PRC 
except those specifically identified in the ``Continuation of 
Suspension of Liquidation'' section of this notice.

Use of Facts Available

    As explained in the preliminary determination, the PRC-wide 
antidumping rate is based on adverse facts available, in accordance 
with section 776 of the Act. Section 776(a)(2) of the Act provides that 
``if an interested party or any other person--(A) withholds information 
that has been requested by the administering authority or the 
Commission under this title, (B) fails to provide such information by 
the deadlines for submission of the information or in the form and 
manner requested, subject to subsections (c)(1) and (e) of section 782, 
(C) significantly impedes a proceeding under this title, or (D) 
provides such information but the information cannot be verified as 
provided in section 782(i), the administering authority and the 
Commission shall, subject to section 782(d), use the facts otherwise 
available in reaching the applicable determination under this title.'' 
Use of facts available is warranted in this case because the producers/
exporters other than those under investigation and the four cooperative 
exporters who were not selected as respondents, have failed to respond 
to the Department's questionnaire. While SAAME initially cooperated 
with the Department in submitting questionnaire responses, it did not 
permit verification of its information and withdrew from the 
investigation. Therefore, in accordance with section 776(a)(2)(D) of 
the Act, we find that use of facts available is warranted with respect 
to SAAME.
    Section 776(b) of the Act provides that adverse inferences may be 
used when a party has failed to cooperate by not acting to the best of 
its ability to comply with a request for information. The producers/
exporters that decided not to respond in any form to the Department's 
questionnaire and SAAME, which withdrew from the investigation, failed 
to act to the best of their ability in this investigation. Further, 
absent a verifiable response from these firms, we must presume 
government control of these PRC companies. Thus, the Department has 
determined that, in selecting from among the facts otherwise available, 
an adverse inference is warranted and has assigned them a common, PRC-
wide rate based on adverse inferences.
    In accordance with our standard practice, as adverse facts 
available, we are assigning to the PRC-wide entity (i.e., those 
companies not receiving a separate rate), which did not cooperate in 
the investigation, the higher of: (1) The highest margin stated in the 
notice of initiation; or (2) the highest margin calculated for any 
respondent in this investigation (see, e.g., Notice of Final 
Determination of Sales at Less Than Fair Value: Stainless Steel Wire 
Rod from Japan, 63 FR 40434 (July 29, 1998)). In this case, the adverse 
facts available margin is 51.74 percent, the margin from the petition, 
which is higher than the margin calculated for any respondent in this 
investigation.
    Section 776(c) of the Act provides that where the Department 
selects from among the facts otherwise available and relies on 
``secondary information,'' such as the petition, the Department shall, 
to the extent practicable, corroborate that information from 
independent sources reasonably at the Department's disposal. The 
Statement of Administrative Action accompanying the URAA, H.R. Doc. No. 
103-316 (1994) (SAA), states that ``corroborate'' means to determine 
that the information used has probative value. See SAA at 870.
    The petitioners' methodology for calculating export price (``EP'') 
and normal value (``NV'') is discussed in the Notice of Initiation. To 
corroborate the petitioners'' EP calculations, we compared the prices 
in the petition for the product to the prices submitted by respondents 
for the same product in similar volumes. To corroborate the 
petitioners' NV calculations, we compared the petitioners' factor 
consumption and factor values for the product to the data reported by 
the respondents for the most significant factors (i.e., apples; labor; 
electricity; packing materials; factory overhead; selling, general, and 
administrative expenses; and profit) to the values selected for the 
final determination, as discussed below. Our analysis showed that, in 
general, the petitioners' data was reasonably close to the data 
submitted by the respondents and to the surrogate values chosen by the 
Department. See April 6, 2000 memorandum to the file (``Corroboration 
Memo''). Based on our analysis, we find that the figures and 
calculations set forth in the petition have probative value.

Fair Value Comparisons

    To determine whether sales of NFAJC from the PRC to the United 
States were made at less than fair value, we compared the EP or CEP, as 
appropriate, to the NV. Our calculations followed the methodologies 
described in the Preliminary Determination, except as noted below and 
in the company-specific calculation memoranda dated April 6, 2000, 
which are on file in the Central Records Unit, Room B-099 of the main 
Department building.

Export Price and Constructed Export Price

    For the price to the United States, we used EP or CEP as defined in 
section 772 of the Act, as appropriate. We calculated EP and CEP based 
on the same methodology as in the Preliminary Determination, with the 
following exception:
    We did not use any reported market economy international freight 
rates where such freight was provided by a non-market economy freight 
forwarder. Instead, we used the surrogate value for international 
freight developed using Federal Maritime Commission data. See ``Issues 
and Decision Memorandum'' (``Decision Memorandum'') from Richard W. 
Moreland, Deputy Assistant Secretary, Import Administration to Joseph 
A. Spetrini, Acting Assistant Secretary for Import Administration, 
dated April 6, 2000, Comment 3.

[[Page 19875]]

Normal Value

1. Surrogate Country

    Section 773(c)(4) of the Act requires the Department to value an 
NME producer's factors of production, to the extent possible, in one or 
more market economy countries that: (1) Are at a level of economic 
development comparable to that of the NME, and (2) are significant 
producers of comparable merchandise. Regarding the first criterion, the 
Department has determined that India, Pakistan, Sri Lanka, Egypt, 
Indonesia, and the Philippines are countries comparable to the PRC in 
terms of overall economic development (see memorandum from Jeff May, 
Director, Office of Policy, to Susan Kuhbach, Senior Director, AD/CVD 
Enforcement, Office 1, September 15, 1999) (``Surrogate Memorandum'')).
    In the Preliminary Determination, we solicited further comments on 
this issue from the parties. We received such comments on February 25 
and 28, 2000, and in the case and rebuttal briefs filed on March 9 and 
14, 2000. For purposes of the final determination, we have continued to 
rely on India as our primary surrogate country in this investigation. 
See Decision Memorandum, Comment 1. When Indian values were not 
available or were determined to be aberrational, we used Indonesian or 
U.S. values.

2. Factors of Production and Surrogate Values

    In our calculation of NV, we have used the same factors of 
production and the same surrogate values as in the Preliminary 
Determination, with the following exceptions:
    To value rail freight we used a surrogate value based on Northern 
India Railways data. See
 Decision Memorandum, Comment 5. To value aseptic bags for those 
respondents that did not purchase them from a market economy supplier, 
we used the average price paid by those respondents who did. See 
Decision Memorandum, Comment 6.

Critical Circumstances

    On November 3, 1999, the Department issued its preliminary 
determination that critical circumstances exist with respect to SAAME 
(which has since withdrawn from this investigation), Lakeside, 
Haisheng, North Andre, Nannan, those non-selected respondents who 
requested separate rates (Fuan, Asia Fruit, Changsha, and Shandong 
Foodstuffs), and those entities subject to the PRC-wide rate. We also 
preliminarily determined that critical circumstances do not exist with 
respect to Oriental and Zhonglu. See Preliminary Determination of 
Critical Circumstances: Certain Non-Frozen Apple Juice Concentrate From 
the People's Republic of China, 64 FR 61835 (November 15, 1999). Our 
decision was based on the analysis of shipment data submitted by the 
respondents and available import statistics, as well as evidence of 
importer knowledge of dumping and the likelihood of resultant material 
injury. As discussed in the preliminary critical circumstances 
determination, the Department normally considers margins of 25 percent 
for EP sales and 15 percent for CEP sales and a preliminary 
International Trade Commission (``ITC'') determination of material 
injury sufficient to impute knowledge of dumping and the likelihood of 
resultant material injury.
    Because the final calculated margins for North Andre, Haisheng, 
Zhonglu, and Oriental are below 15 percent, the Department's threshold 
for imputing knowledge of dumping is not met as to these companies. 
Thus, we do not find critical circumstances with respect to these 
companies. Furthermore, the weighted-average margin we calculated for 
the non-selected respondents (Fuan, Asia Fruit, Changsha, and Shandong 
Foodstuffs) is less than the 25 percent threshold for imputing 
knowledge with respect to EP sales, but greater than the 15 percent 
threshold for imputing knowledge with respect to CEP sales. Because the 
record as to these respondents does not indicate whether their sales 
were EP or CEP sales, we considered whether the 15 percent or 25 
percent threshold was applicable with respect to those companies whose 
rates were used to calculate the weighted-average margin for the non-
selected group (i.e., Haisheng, Oriental, and Nannan). Given that the 
25-percent threshold was appropriate for two of these three companies, 
we applied this threshold for the non-selected respondents and thus we 
did not impute knowledge of dumping to the non-selected respondent 
group. Accordingly, we also do not find critical circumstances for the 
companies in this group.
    Because the final margins for Lakeside, Nannan and the companies in 
the PRC-wide entity (including SAAME) continue to be above the 
threshold for imputing knowledge of dumping, and because, as detailed 
in the preliminary determination, there is record evidence sufficient 
to impute knowledge of injury and to support a finding of massive 
imports over a relatively short period of time, we continue to find 
that critical circumstances exist with respect to these companies. See 
Decision Memorandum, Comment 10.

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by respondents for use in our final 
determination. We used standard verification procedures including 
examination of relevant accounting and production records, and original 
source documents provided by respondents.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the April 6, 2000, Decision 
Memorandum which is hereby adopted by this notice. Attached to this 
notice as an appendix is a list of the issues which parties have raised 
and to which we have responded in the Decision Memorandum. Parties can 
find a complete discussion of all issues raised in this investigation 
and the corresponding recommendations in this public memorandum which 
is on file in the Central Records Unit, Room B-099 of the Department. 
In addition, a complete version of the Decision Memorandum can be 
accessed directly on the Web at www.ita.doc.gov/import__admin/records/
frn. The paper copy and electronic version of the Decision Memorandum 
are identical in content.

Continuation of Suspension of Liquidation

    In accordance with section 735(c) of the Act, we are directing the 
U.S. Customs Service (``Customs'') to continue to suspend liquidation 
of all imports of the subject merchandise from the PRC, except for 
merchandise both produced and exported by North Andre, which has a zero 
margin, that are entered, or withdrawn from warehouse, for consumption 
on or after November 23, 1999, the date of publication of the 
Preliminary Determination in the Federal Register. In addition, for 
Lakeside, Nannan, and companies subject to the PRC-wide rate (including 
SAAME), we are directing Customs to continue to suspend liquidation of 
any unliquidated entries of subject merchandise entered, or withdrawn 
from warehouse, for consumption on or after August 25, 1999, the date 
90 days prior to the date of publication of the Preliminary 
Determination in the Federal Register, in accordance with our critical 
circumstances finding. Consistent with our negative final critical 
circumstances determination for Haisheng, Fuan, Asia Fruit, Changsha, 
and Shandong Foodstuffs (all of which were subject to a preliminary 
critical

[[Page 19876]]

circumstances finding), we will instruct Customs to liquidate without 
regard to antidumping duties and refund all bonds and cash deposits 
posted on subject merchandise exported by these companies that was 
entered, or withdrawn from warehouse, for consumption prior to November 
23, 1999, the date of publication of the Preliminary Determination in 
the Federal Register.
    Customs shall continue to require a cash deposit or the posting of 
a bond equal to the weighted-average amount by which the NV exceeds the 
EP or CEP, as appropriate, as indicated in the chart below. These 
suspension of liquidation instructions will remain in effect until 
further notice.
    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                 Weighted-average         Critical
     Exporter/manufacturer      margin percentage      circumstances
------------------------------------------------------------------------
Yantai North Andre Juice Co.,                0.00  No.
 Ltd.
Shaanxi Haisheng Fresh Fruit                12.90  No.
 Juice Co., Ltd.
Sanmenxia Lakeside Fruit Juice              28.54  Yes.
 Co., Ltd.
Shandong Zhonglu Co., Ltd./                  9.40  No.
 Rushan Shangjin-Zhonglu
 Foodstuff Co., Ltd./Shandong
 Luling Fruit Juice Co./Rushan
 Dongjin Foodstuffs.
Yantai Oriental Juice Co., Ltd               9.96  No.
Qingdao Nannan Foods Co., Ltd.              26.43  Yes.
Xian Asia Qin Fruit Co., Ltd..              15.36  No.
Xian Yang Fuan Juice Co., Ltd.              15.36  No.
Changsha Industrial Products &              15.36  No.
 Minerals Import and Export
 Co., Ltd.
Shandong Foodstuffs Import and              15.36  No.
 Export Corporation.
PRC-wide rate.................              51.74  Yes.
------------------------------------------------------------------------

    The PRC-wide rate applies to all entries of the subject merchandise 
except for entries from exporters that are identified individually 
above, and to any entries exported by, but Not produced by, North 
Andre.

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
ITC of our determination. As our final determination is affirmative, 
the ITC will, within 45 days, determine whether these imports are 
materially injuring, or threaten material injury to, the U.S. industry. 
If the ITC determines that material injury, or threat of material 
injury does not exist, the proceeding will be terminated and all 
securities posted will be refunded or canceled. If the ITC determines 
that such injury does exist, the Department will issue an antidumping 
duty order directing Customs officials to assess antidumping duties on 
all imports of the subject merchandise entered for consumption on or 
after the effective date of the suspension of liquidation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: April 6, 2000.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.

Appendix

List of Comments in the Issues and Decision Memorandum

Comment 1: Choice of primary surrogate country
Comment 2: Valuation of apples
Comment 3: Valuation of ocean freight
Comment 4: Valuation of steam coal
Comment 5: Valuation of rail freight
Comment 6: Valuation of aseptic bags
Comment 7: Valuation of apple essence
Comment 8: Valuation of SG&A, factory overhead, and profit
Comment 9: Alleged wrongful initiation of investigation
Comment 10: Critical circumstances
Comment 11: Expansion of scope
Comment 12: Customs instructions
Comment 13: Zhonglu deposit rate

[FR Doc. 00-9240 Filed 4-12-00; 8:45 am]
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