[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Notices]
[Pages 44741-44744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19430]


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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: Preliminary Results of New Shipper Review

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

ACTION:  Notice of Preliminary Results of New Shipper Review.

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SUMMARY:  The Department of Commerce is currently conducting a new 
shipper review of the antidumping duty order on non-frozen apple juice 
concentrate from the People's Republic of China, covering the period 
June 1, 2002, through November 30, 2002.
    The new shipper review covers one exporter: Yantai Golden Tide 
Fruits & Vegetable Food Co., Ltd. We preliminarily determine that sales 
of non-frozen apple juice concentrate from the People's Republic of 
China were made below normal value during the period of review by 
Yantai Golden Tide Fruits & Vegetable Food Co., Ltd.
    If these preliminary results are adopted in our final results of 
review, we will instruct the U.S. Bureau of Customs and Border 
Protection to assess antidumping duties based on the difference between 
export price and normal value for Yantai Golden Tide Fruits & Vegetable 
Food Co., Ltd.
    Interested parties are invited to comment on these preliminary 
results. We will issue the final results no later than 90 days from the 
date of issuance of these preliminary results.

EFFECTIVE DATE: July 30, 2003.

FOR FURTHER INFORMATION CONTACT:  Audrey Twyman, Stephen Cho or John 
Brinkmann, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-3534, (202) 482-3798 or 
(202) 482-4126, respectively.

SUPPLEMENTARY INFORMATION:

Period of Review

    The period of review (``POR'') is June 1, 2002 through November 30, 
2002.

Background

    On December 17, 2002, the Department received a timely request from 
Yantai Golden Tide Fruits & Vegetable Food Co., Ltd. (``Golden Tide''), 
to conduct a new shipper review.
    On January 30, 2003, we published a notice of initiation of a new 
shipper review of the antidumping duty order on non-frozen apple juice 
concentrate (``AJC'') from the People's Republic of China (``PRC''). 
See Non-Frozen Apple Juice Concentrate from the People's Republic of 
China: Initiation of Antidumping New Shipper Review, 68 FR 4762 
(January 30, 2003). On January 31, 2003, the Department sent a 
questionnaire to Golden Tide and received a response on March 21, 2003, 
and a response to a supplemental questionnaire on April 2, 2003.
    On June 26, 2003, the Department invited interested parties to 
comment on surrogate country selection and to provide publicly 
available information for valuing the factors of production. We 
received a response from Golden Tide on July 11, 2003.
    The Petitioners have not made any written submissions in this 
proceeding.\1\
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    \1\ Petitioners are Tree Top, Inc., Knouse Foods Cooperative, 
Inc., Green Valley Packers, Mason County Fruit Packers Co-op, Inc. 
and Coloma Frozen Foods, Inc.
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Scope of the Order

    The product covered by this order is certain non-frozen apple juice 
concentrate (AJC''). Certain AJC 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.

Separate Rates Determination

    The Department has treated the PRC as a nonmarket economy (``NME'') 
country in all previous antidumping

[[Page 44742]]

cases. In accordance with section 771(18)(C)(i) of the Tariff Act of 
1930, as amended (``the Act''), any determination that a foreign 
country is an NME shall remain in effect until revoked by the 
Department. None of the parties to this proceeding have contested such 
treatment in this review. Moreover, parties to this proceeding have not 
argued that the PRC AJC industry is a market-oriented industry.
    Therefore, we are treating the PRC as an NME country within the 
meaning of section 773(c) of the Act. We allow companies in NME 
countries to receive separate antidumping duty rates for purposes of 
assessment and cash deposits when those companies can demonstrate an 
absence of government control, both in law and in fact, with respect to 
export activities.
    To establish whether a company operating in an NME country is 
sufficiently independent to be entitled to a separate rate, the 
Department analyzes each exporting entity 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 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''). Under the 
separate rates criteria, the Department assigns separate rates in NME 
cases only if the respondents can demonstrate the absence of both de 
jure and de facto governmental control over export activities.
Absence of De Jure Control
    Evidence supporting, though not requiring, a finding of de jure 
absence of government control over export activities includes: 1) an 
absence of restrictive stipulations associated with the individual 
exporter's business and export licenses; 2) any legislative enactments 
decentralizing control of companies; and 3) any other formal measures 
by the government decentralizing control of companies.
    Golden Tide has placed two documents on the record to demonstrate 
absence of de jure government control, ``Foreign Trade Law of the 
People's Republic of China'' (``Foreign Trade Law'') and the 
``Administrative Regulations of the People's Republic of China 
Governing the Registration of Legal Corporations'' (``Administrative 
Regulations''). The Foreign Trade Law grants autonomy to foreign trade 
operators in management decisions and establishes accountability for 
their own profits and losses. In prior cases, the Department has 
analyzed the Foreign Trade Law and found that it establishes an absence 
of de jure control. See, e.g., Notice of Preliminary Determination of 
Sales at Less Than Fair Value and Postponement of Final Determination: 
Certain Partial-Extension Steel Drawer Slides with Rollers from the 
People's Republic of China, 60 FR 29571 (June 5, 1995); 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''). We have no new information in this segment 
of the proceeding which would cause us to reconsider this 
determination.
    The Administrative Regulations safeguard social and economic order, 
as well as establishing an administrative system for the registration 
of corporations. The Department has reviewed the Administrative 
Regulations and concluded that they show an absence of de jure control 
by requiring companies to bear civil liabilities independently, thereby 
decentralizing control of companies.
    According to the respondent, AJC exports are not affected by quota 
allocations or export license requirements. The Department has examined 
the record in this case and does not find any evidence that AJC exports 
are affected by quota allocations or export license requirements. By 
contrast, the evidence on the record demonstrates that the producers/
exporters have the autonomy to set the price at whatever level they 
wish through independent price negotiations with their foreign 
customers and without government interference.
    Accordingly, we preliminarily determine that there is an absence of 
de jure government control over export pricing and marketing decisions 
of the respondent.
Absence of De Facto Control
    De facto absence of government control over exports is based on 
four factors: 1) whether each exporter sets its own export prices 
independently of the government and without the approval of a 
government authority; 2) whether each exporter retains the proceeds 
from its sales and makes independent decisions regarding the 
disposition of profits or financing of losses; 3) whether each exporter 
has the authority to negotiate and sign contracts and other agreements; 
4) whether each exporter has autonomy from the government regarding the 
selection of management (see Silicon Carbide, 59 FR at 22587; 
Sparklers, 56 FR at 20589).
    As stated in previous cases, there is evidence that certain 
enactments of the PRC central government have not been implemented 
uniformly among different sectors and/or jurisdictions in the PRC. See 
Mushrooms, 63 FR at 72255. Therefore, the Department has determined 
that an analysis of de facto control is critical in determining whether 
respondents are, in fact, subject to a degree of governmental control 
which would preclude the Department from assigning separate rates.
    The Department has reviewed the record in this case and finds the 
following facts about the respondent: (1) it establishes its own export 
prices; (2) it negotiates contracts without guidance from any 
governmental entities or organizations; (3) it makes its own personnel 
decisions; (4) it retains the proceeds from export sales and uses 
profits according to its business needs without any restrictions; (5) 
it does not coordinate or consult with other exporters regarding 
pricing decisions.
    The information on the record supports a preliminary finding that 
there is an absence of de facto governmental control of the export 
functions of this company. Consequently, we preliminarily determine 
that Golden Tide has met the criteria for the application of a separate 
rate.

Fair Value Comparisons

    To determine whether sales of the subject merchandise by Golden 
Tide to the United States were made at prices below normal value 
(``NV''), we compared Golden Tide's export price to NV, as described in 
the ``Export Price'' and ``Normal Value'' sections of this notice, 
below.

Export Price

    For the sale made by Golden Tide during the POR we used export 
price, in accordance with section 772(a) of the Act, because the 
subject merchandise was sold to unaffiliated purchasers in the United 
States prior to importation into the United States and because the 
constructed export price methodology was not warranted by other 
circumstances.
    We calculated export price based on Golden Tide's selling price to 
an unaffiliated purchaser. In accordance with section 772(c) of the 
Act, we deducted from this price amounts for foreign inland freight 
from plant to warehouse and from warehouse to port, foreign brokerage 
and handling, U.S. customs broker fees, international freight, U.S. 
inland freight from port to warehouse, U.S. warehousing expense, and 
U.S. customs duty. We valued the deductions for foreign inland freight, 
international freight, and brokerage and

[[Page 44743]]

handling using surrogate data, which was based on Indian freight costs. 
(Our surrogate-country selection is discussed in the ``Normal Value'' 
section of this notice, below.) Because ocean freight was provided by a 
PRC-owned company, we valued this deduction using amounts charged by 
market-economy providers.

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine NV using a factors-of-production methodology if: (1) the 
subject merchandise is exported from an NME country, and (2) the 
Department finds that the available information does not permit the 
calculation of NV under section 773(a) of the Act. We have no basis to 
determine that the available information would permit the calculation 
of NV using PRC prices or costs. Therefore, we calculated NV based on 
factors data in accordance with section 773(c) of the Act and 19 CFR 
351.408(c).
    Under the factors-of-production methodology, we are required to 
value, to the extent possible, the NME producer's inputs in a market-
economy country that is at a comparable level of economic development 
and that is a significant producer of comparable merchandise. We chose 
Poland, a significant producer of non-frozen apple juice concentrate, 
as the primary surrogate country on the basis of the criteria set out 
in sections 773(c)(2)(B) and 773(c)(4) of the Act and in 19 CFR 
351.408(b). Although Poland was not on the Department's list of most 
comparable economies, we were unable to establish that these comparable 
economies were significant producers of merchandise comparable to non-
frozen apple juice concentrate.
    We have relied upon publicly available values from Poland for the 
major input, juice apples, as well as for electricity, factory 
overhead, selling, general and administrative expenses (``SG&A''), and 
profit ratios. Because we were unable to obtain Polish data to value 
the other miscellaneous factors of production, we have valued these 
inputs using public information on the record for India, one of the 
comparable economies we identified. See the June 17, 2003, Memorandum 
to Audrey Twyman from Ron Lorentzen, ``New Shipper Review for Non-
frozen Apple Juice Concentrate from the People's Republic of China 
(PRC): Request for a List of Surrogate Countries.''
    Because some of the Indian data was not contemporaneous with the 
POR we inflated the values to the POR using the Indian wholesale price 
indices (``WPI'') published by the International Monetary Fund. See the 
July 23, 2003, Memorandum to Jeffrey May from Susan Kuhbach, 
``Surrogate Selection and Valuation - Non-Frozen Apple Juice 
Concentrate from China: Yantai Golden Tide Fruits & Vegetable Food Co., 
Ltd.'' (``Surrogate Country Memo''), for a further discussion of our 
surrogate selection, which is on file in the Department's Central 
Records Unit in Room B-099 of the main Department building (``CRU'').
    Pursuant to the Department's factors-of-production methodology as 
provided in section 773(c) of the Act and 19 CFR 351.408(c), we valued 
Golden Tide's reported factors of production by multiplying them by the 
following values\2\:
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    \2\ For a complete description of the factor values used, see 
the Memorandum to Susan Kuhbach: ``Factors of Production Values Used 
for the Preliminary Results: Yantai Golden Tide Fruits & Vegetable 
Food Co., Ltd.'' (``FOP Memo''), dated July 23, 2003, which is on 
file in the CRU.
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    Juice Apples: We have valued juice apples using prices of juice 
apples in Poland, covering 20 weeks of the POR. This information was 
provided to the Department by the Foreign Agriculture Service (``FAS'') 
at the U.S. Embassy in Warsaw, Poland, which obtained it from the 
Polish Foreign Agricultural Markets Monitoring Unit/Foundation for Aid 
Programs for Agriculture and the Institute of Agricultural Economics. 
The average value of these 20 weekly prices is $45.30 per metric ton.
    Processing Agents: We valued pectinex enzyme, amylase enzyme, 
bentonite, gelatin, silica gel, and activated carbon for the POR using 
the World Trade Atlas data for India, which is based on data reported 
by the DGCI&S of the Ministry of Commerce, which also supplies the same 
data for the Monthly Statistics of the Foreign Trade of India, Volume 
II: Imports (``Indian import statistics'').
    Labor: Pursuant to 19 CFR 351.408(c)(3), we valued labor using the 
regression-based wage rate for the PRC published by Import 
Administration on its website.
    Electricity and Steam Coal: To value electricity, we used Polish 
industrial electricity rate data from the Energy Prices & Taxes - 
Quarterly Statistics (Third Quarter 2000) published by the 
International Energy Agency. We used the 1999 price and inflated it to 
the POR. We determined that the most contemporaneous and detailed 
information regarding steam coal was from the Energy Data Directory & 
Yearbook (2001/2002) published by Tata Energy Research Institute 
(``TERI''). We used the Indian data because, unlike the Polish data, 
the Indian price of steam coal is segregated by useful heat value 
(``UHV''). We used the January 2001 price and inflated it to the POR 
using the Indian WPI.
    Factory Overhead, SG&A, and Profit: We derived ratios for factory 
overhead, SG&A, and profit using the 2002 financial statement of Agros, 
a public company in Poland that produces products similar to the 
subject merchandise.
    Packing Materials: We calculated values for aseptic bags and labels 
using the World Trade Atlas data for India for the POR. We converted 
values from a per-kilogram to a per-piece basis, where necessary.
    For steel drums, we could not find a reliable current Indian value. 
Therefore, we used a 1994 Indonesian price and inflated it using the 
Indonesian WPI.
    Inland Freight Rates: To value truck freight rates, we used an 
April 2002 article from the Iron and Steel Newsletter, which quotes 
information derived from the website, www.infreight.com. We used the 
April 2002 price and inflated it to the POR using the Indian WPI. With 
regard to rail freight, we based our calculation on posted rail rates 
from the Indian Railways at http://www.indianrailways.gov.in. We 
calculated an average per-kilometer per-metric ton rate.
    International Freight: We used rates collected from the Descartes 
online system to value Golden Tide's international freight.
    Brokerage and Handling: The brokerage and handling amount we used 
in our calculations was derived from an amount charged in Indian Rupees 
by and Indian shipping company. This figure was taken from the public 
version of a U.S. sales listing reported in the questionnaire response 
submitted by Meltroll Engineering for Stainless Steel Bar from India; 
Final Results of Antidumping Duty Administrative Review and New Shipper 
Review and Partial Rescission of Administrative Review, 65 FR 48965 
(August 10, 2000) (placed on the record of this segment of the 
proceeding on July 23, 2003, as an attachment to the FOP Memo). Because 
this information is not contemporaneous with the POR, we adjusted the 
data to the POR by using the Indian WPI.
    By-products: Golden Tide reported a by-product resulting from 
production of the subject merchandise, apple pomace. Because we were 
unable to find reliable values in any potential surrogate country for 
apple pomace we used U.S. prices. We will continue to look for an 
appropriate surrogate for purposes of

[[Page 44744]]

the final results. Apple pomace was valued using an April 2000 study 
published by the University of Georgia.

Preliminary Results of the Review

    We preliminary determine that the following dumping margin exists 
for the period June 1, 2002, through November 30, 2002:

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                   Exporter                                           Producer                                Weighted-average margin percentage
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Yantai Golden Tide Fruits & Vegetable Food          Yantai Golden Tide Fruits & Vegetable Food Co.,                                              12.36 %
 Co., Ltd.....................................                                                 Ltd.
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Public Comment

    Pursuant to 19 CFR 351.310(c), any interested party may request a 
hearing within 30 days of the date of publication of this notice. Any 
hearing, if requested, will be held approximately 42 days after the 
publication of this notice, or the first workday thereafter. Issues 
raised in hearings will be limited to those raised in the case and 
rebuttal briefs. Pursuant to 19 CFR 351.309(c), interested parties may 
submit case briefs within 30 days of the date of publication of this 
notice. Furthermore, as discussed in 19 CFR 351.309(d)(2), rebuttal 
briefs, which must be limited to issues raised in the case briefs, may 
be filed not later than 35 days after the date of publication of this 
notice. Parties who submit case briefs or rebuttal briefs in this new 
shipper review are requested to submit with each argument (1) a 
statement of the issue and (2) a brief summary of the argument with an 
electronic version included.
    The Department will publish the final results of this new shipper 
review, including the results of its analysis of issues raised in any 
such written briefs or hearing, within 90 days of the date of issuance 
of these preliminary results, pursuant to section 751(a)(2)(B)(iv) of 
the Act.

Assessment Rates

    Pursuant to 19 CFR 351.212(b), the Department calculates an 
assessment rate for each importer of the subject merchandise. Upon 
issuance of the final results of this new shipper review, if any 
importer/customer-specific assessment rates calculated in the final 
results are above de minimis (i.e., at or above 0.5 percent), the 
Department will issue appraisement instructions directly to the U.S. 
Bureau of Customs and Border Protection to assess antidumping duties on 
appropriate entries by applying the assessment rate to the entered 
value of the merchandise.
    For assessment purposes, we calculate importer-specific assessment 
rates for the subject merchandise by aggregating the dumping duties due 
for all U.S. sales to each importer and dividing the amount by the 
total entered value of the sales to that importer. The Department will 
issue assessment instructions directly to the U.S. Bureau of Customs 
and Border Protection within 15 calendar days of the publication of the 
final results of this new shipper review in the Federal Register.

Cash Deposit Requirements for New Shipper Review

    Bonding will no longer be permitted to fulfill security 
requirements for shipments from Golden Tide of AJC from the PRC on or 
after the publication date of the final results of this new shipper 
review. Instead, the following cash deposit requirements will be 
effective upon publication of the final results of the new shipper 
review for all shipments from Golden Tide of subject merchandise 
entered, or withdrawn from warehouse, for consumption on or after the 
publication date: (1) for subject merchandise manufactured and exported 
by Golden Tide, we will require a cash deposit at the rate established 
in the final results; and (2) for subject merchandise exported by 
Golden Tide but not manufactured by it, the cash deposit will be the 
PRC countrywide rate (i.e., 51.74 percent).

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 these results in accordance with 
section 751(a)(2)(B) ofthe Act and 19 CFR 351.214.

    Dated: July 23, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Grant Aldonas, Under Secretary.
[FR Doc. 03-19430 Filed 7-29-03; 8:45 am]
BILLING CODE 3510-DS-S