[Federal Register Volume 69, Number 30 (Friday, February 13, 2004)]
[Notices]
[Pages 7197-7200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-3258]


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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 Amended Final Determination and Amended 
Order Pursuant to Final Court Decision

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

ACTION: Notice of Amended Final Determination and Amended Order 
Pursuant to Final Court Decision.

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SUMMARY: On November 20, 2003, in Yantai Oriental Juice Co., et al. v. 
United States and Coloma Frozen Foods, Inc., et al., Court No. 00-
00309, Slip Op. 03-150, the Court of

[[Page 7198]]

International Trade (``CIT'') affirmed the Department of Commerce's 
(``the Department's'') remand determinations and entered a judgment 
order. This litigation related to the Department's Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Non-Frozen 
Apple Juice Concentrate From the People's Republic of China, 65 FR 
19873 (April 13, 2000) and accompanying Issues and Decision Memorandum 
(April 6, 2000) (``Issues and Decision Memorandum''), and 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) 
(collectively, ``Final Determination'').
    In its remand determinations, the Department reviewed the record 
evidence regarding the selection of a surrogate country; the valuation 
of juice apples, steam coal, and ocean freight; and the calculation of 
selling, general and administrative (``SG&A'') expenses, overhead, and 
profit. The Department found that Turkey, rather than India, was the 
appropriate surrogate country. Juice apples, SG&A, overhead and profit 
were valued using surrogate value information from Turkey. Steam coal 
was valued using a domestic Indian price and the ocean freight rate was 
revised to include a rate for Detroit.
    The remand determinations resulted in weighted average margins of 
zero percent for Yantai Oriental Juice Co. (``Oriental''), Qingdao 
Nannan Foods Co. (``Nannan''), Sanmenxia Lakeside Fruit Juice Co. Ltd. 
(``Lakeside''), Shaanxi Haisheng Fresh Fruit Juice Co. (``Haisheng''), 
and SDIC Zhonglu Juice Group Co. (``Zhonglu''). Therefore, these 
companies will be excluded from the antidumping duty order on certain 
non-frozen apple juice concentrate (``AJC'') from the People's Republic 
of China (``PRC'').
    As the remand determinations resulted in changes to calculated 
company-specific margins, the Department also recalculated the separate 
rate margin it applied to producers/exporters that responded to the 
Department's separate rate (``Section A'') questionnaire but were not 
selected to respond to the full questionnaire (``separate-rate 
companies''). The calculated antidumping rate for Xian Yang Fuan Juice 
Co., Ltd. (``Xian Yang''), Xian Asia Qin Fruit Co., Ltd. (``Xian 
Asia''), Changsha Industrial Products & Minerals Import & Export 
Corporation (``Changsha Industrial''), and Shandong Foodstuffs Import & 
Export Corporation (``Shandong Foodstuffs'') (collectively ``separate-
rate companies'') is 3.83 percent.
    The PRC-wide rate of 51.74 percent is unchanged from our Final 
Determination in the investigation.
    As there is now a final and conclusive court decision in this 
action, we are amending our Final Determination.

EFFECTIVE DATE: February 13, 2004.

FOR FURTHER INFORMATION CONTACT: Audrey Twyman 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, or (202) 482-4126, 
respectively.

SUPPLEMENTARY INFORMATION:

Period of Investigation

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

Background

    Following publication of the Final Determination, Oriental, Nannan, 
Lakeside, Haisheng, Zhonglu, Xian Yang, Xian Asia, Changsha Industrial 
and Shandong Foodstuffs (collectively the ``respondents''), filed 
lawsuits with the CIT challenging the Department's Final Determination.
    In the underlying investigation, the Department was required to 
choose a surrogate country based on ``significant production'' of 
``comparable merchandise'' and ``economic comparability'' to the PRC. 
The Department selected India because it is economically comparable to 
the PRC, and a significant producer of apples and single strength apple 
juice, products the Department found to be comparable to AJC. The 
Department then valued the juice apples, SG&A, overhead, profit, steam 
coal and other factors of production in India. In calculating ocean 
freight rates, the Department included freight rates to Detroit in its 
calculation of an East Coast freight rate.
    The Court remanded five issues to the Department.
    First, the Court questioned the Department's reliance on a market 
study included in the petition and an annual report for an Indian 
company as the basis for determining that India was a significant 
producer of comparable merchandise. In particular, the Court found the 
Department had not corroborated the market study, nor had it explained 
the connection between the market study and the annual report, and the 
Department's conclusion that India was a significant producer of AJC. 
The Court similarly rejected the Department's determination that 
India's status as a significant producer of apples was relevant to the 
Department's treatment of India as a significant producer of comparable 
merchandise.
    The Court directed the Department to develop sufficient evidence 
from the record of India's suitability as the surrogate market economy 
country for AJC production, or, if it could not, to select another 
suitable country.
    Second, the Court instructed the Department to provide an 
explanation of why the distortions caused by the Government of India's 
market intervention scheme did not disturb the fair market value of 
Indian apples. The Court also directed the Department to explain why it 
treated government subsidies that enabled producers to lower their 
prices as market distorting, but did not apply the same treatment to 
such subsidies that raise prices. Furthermore, the Court requested that 
the Department explain why the price paid by Himachal Pradesh 
Horticultural Produce Marketing & Processing Corp., a government-
controlled entity, should be considered a market-derived price.
    Third, for steam coal valuation, the Department used Indian import 
statistics data because it found that the value was contemporaneous 
with the period of investigation and because there was no evidence to 
suggest that the data was aberrational or unreliable. The Court 
instructed the Department either to recalculate normal value using 
Indian domestic prices for steam coal, or explain why the use of 
domestic prices for steam coal was not appropriate during the period of 
investigation.
    Fourth, the Court concluded that the Department's use of data from 
the Reserve Bank of India Bulletin, rather than data from an Indian 
producer, to value SG&A and overhead was not supported by substantial 
evidence on the record and instructed the Department to either 
recalculate these values using the financial statement of an Indian 
producer, or fully explain why the Department felt that the Reserve 
Bank of India Bulletin gave better financial data.
    Finally, the Court instructed the Department to explain its 
reasoning for not calculating a separate Detroit freight rate and to 
explain why the Department did not weight its calculation to reflect 
accurately the volume of merchandise actually shipped to each 
destination.
    To assist it in complying with the Court's instructions, the 
Department opened the record and requested new information concerning 
possible surrogate countries. The petitioners submitted data supporting 
the use of Poland, while the respondents pointed

[[Page 7199]]

to Turkish data that they had placed on the record in the 
investigation.
    The ``Draft Results Pursuant to Court Remand'' (``First Draft 
Results'') were released to the parties on November 6, 2002. In its 
First Draft Results, pursuant to the analysis followed by the Court, 
the Department concluded that the record did not support its 
determination in the investigation that India was a significant 
producer of AJC. Instead, the Department determined that Turkey was a 
more appropriate surrogate country for the PRC because it was the 
country most economically comparable to the PRC that was also a 
significant producer of AJC.
    Accordingly, the Department amended its calculations using Turkish 
data to value juice apples, SG&A expenses, overhead, and profit. The 
Department also changed its valuations of steam coal and East Coast 
freight. Because the Department's recalculated company-specific margins 
were all zero percent, the Department also recalculated the margin for 
the separate-rate companies by weighting the calculated margins of zero 
with the PRC-wide rate of 51.74%, resulting in a separate rates margin 
of 28.33%.
    Comments on the First Draft Results were received from all parties 
on November 12, 2002. On November 15, 2002, the Department responded to 
the Court's Order by filing its ``Redetermination Pursuant to Court 
Remand'' (``First Redetermination''). The Department's First 
Redetermination was similar to the First Draft Results except for the 
inclusion of the Department's responses to comments submitted by the 
petitioners and respondents. The final margins in the First 
Redetermination were identical to the First Draft Results.
    The CIT affirmed, in part, the Department's First Redetermination 
on March 21, 2003. See Yantai Oriental Juice Co., et al. v. United 
States and Coloma Frozen Foods, Inc., et al. Court No. 00-00309, Slip 
Op. 03-33 (March 21, 2003). The Court affirmed the Department's 
calculation of company-specific margins but remanded the calculation of 
the antidumping margin for the separate-rate companies because the 
Court found that the Department's methodology, weight-averaging the 
PRC-wide rate and the zero margins, was not supported by substantial 
evidence on the record.
    Accordingly, the ``Draft Redetermination Pursuant to Court Remand'' 
(``Second Draft Results'') was released to the parties on April 18, 
2003. In its Second Draft Results, the Department reviewed the record 
evidence and, based on information on the record, calculated a normal 
value and export price for the separate rate companies. Using this 
information, the Department calculated estimated margins for the 
separate rate companies and weight-averaged these margins with the zero 
margins for the fully-investigated companies and derived a separate 
rate of 4.91 percent.
    Comments on the Second Draft Results were received on April 23, 
2003. On May 5, 2003, the Department responded to the Court's Order of 
Remand by filing its ``Redetermination Pursuant to Court Remand'' 
(``Second Redetermination''). The Department's Second Redetermination 
differed from the Second Draft Results in that in calculating export 
price, we removed the fully-investigated companies' constructed export 
price sales, and adjusted our calculations to reflect the different 
terms of sale. These changes resulted in a weighted-average separate-
rate margin of 3.83%.
    The CIT affirmed the Department's Second Redetermination on 
November 20, 2003. See Yantai Oriental Juice Co., et al. v. United 
States and Coloma Frozen Foods, Inc., et al. Court No. 00-00309, Slip 
Op. 03-150 (November 20, 2003). On December 12, 2003, the Department 
published Certain Non-Frozen Apple Juice Concentrate from the People's 
Republic of China: Notice of Court Decision and Suspension of 
Liquidation, (68 FR 69377), (``Timken Notice''). No party appealed the 
CIT's decision. Accordingly, we are now publishing the Amended Final 
Determination as provided in the Timken Notice.

Amended Final Determination

    Because there is now a final and conclusive decision in the court 
proceeding, we are amending the Final Determination to reflect the 
revised weighted-average dumping margins:

------------------------------------------------------------------------
                                                        Weighted average
                Manufacturer/exporter                  margin percentage
                                                            (percent)
------------------------------------------------------------------------
Yantai Oriental Juice Co.............................                  0
Qingdao Nannan Foods Co..............................                  0
Sanmenxia Lakeside Fruit Juice Co. Ltd...............                  0
Shaanxi Haisheng Fresh Fruit Juice Co................                  0
SDIC Zhonglu Juice Group Co. (a.k.a. Shandong Zhonglu                  0
 Juice Group Co., Ltd., Rushan Shangjin-zhonglu
 Foodsuff Co., Ltd., Shandong Luling Fruit Juice Co.,
 Ltd.)...............................................
Xian Yang Fuan Juice Co., Ltd........................               3.83
Xian Asia Qin Fruit Co., Ltd.........................               3.83
Changsha Industrial Products & Minerals Import &                    3.83
 Export percent Corporation..........................
Shandong Foodstuffs Import & Export Corporation......               3.83
------------------------------------------------------------------------

    The ``PRC-wide Rate'' was not affected by the Final Results of 
Redetermination and remains at 51.74 percent as determined in the Final 
Determination.
    The Department will issue appraisement instructions directly to 
U.S. Customs and Border Protection (``CBP'').
    As a result of an injunction issued by the CIT on August 15, 2000, 
entries of AJC manufactured or exported by Oriental, Nannan, Lakeside, 
Haisheng, Zhonglu, Xian Yang, Xian Asia, Changsha Industrial, and 
Shandong Foodstuffs that were entered on or after November 23, 1999, 
have not been liquidated. The injunction is now lifted and the 
Department will instruct CBP to liquidate all merchandise covered by 
the injunction consistent with the terms of the injunction and the 
Court-approved redeterminations. Consequently, for Oriental, Nannan, 
Lakeside, Haisheng, and Zhonglu, which are excluded from the 
antidumping duty order on AJC from the People's Republic of China, we 
are instructing CBP to liquidate all entries without regard to 
antidumping duties.
    The Department notes that the redetermination rate of 3.83 percent 
calculated for the separate rate companies is merely a cash deposit 
rate that is subject to modification after the Department conducts 
reviews. In this proceeding, the Department has conducted two 
administrative reviews (see Certain Non-frozen Apple Juice

[[Page 7200]]

Concentrate from the People's Republic of China: Final Results of the 
1999-2001 Administrative Review and Partial Rescission of Review, 67 FR 
68987 (November 14, 2002) (``First Review''), and Certain Non-frozen 
Apple Juice Concentrate from the People's Republic of China: Final 
Results and Partial Rescission of the 2001-2002 Administrative Review, 
and Final Results of the New Shipper Review, 68 FR 71062 (December 22, 
2003) (``Second Review'')).
    Changsha Industrial did not respond to the Department's 
questionnaire in either review. Therefore, Changsha Industrial received 
a 51.74 percent margin in the first and second reviews. Based on these 
results, entries for Changsha Industrial between November 23, 1999, and 
May 31, 2002, will be liquidated at 51.74 percent, subject to the 
provisions of 19 CFR 351.212(d). Moreover, we are not changing Changsha 
Industrial's cash deposit rate of 51.74 percent.
    Xian Asia and Shandong Foodstuffs were both included in the First 
Review and both received a zero percent margin. Therefore, for the 
first review period, November 23, 1999, through May 31, 2001, Xian 
Asia's and Shandong Foodstuff's entries will be liquidated without 
regard to antidumping duties. Xian Asia and Shandong Foodstuffs were 
then both included in the Second Review but the review was rescinded 
for both because they had no shipments during the review period. When a 
review is rescinded or withdrawn, entries are liquidated at the rate at 
which they entered. Therefore, although we do not believe that there 
are any entries during the second review period for Xian Asia and 
Shandong Foodstuffs, we will instruct CBP to liquidate as entered 
entries from Xian Asia and Shandong Foodstuffs during the second review 
period. Moreover, we do not intend to change the cash deposit rates for 
these companies as a result of this amended final determination. Thus, 
the cash deposit rate for Xian Asia and Shandong Foodstuffs will remain 
at zero percent pursuant to the final results of the first review.
    Finally, Xian Yang was included in both the first and second 
administrative reviews, but in both cases, the review was rescinded for 
Xian Yang because it had no shipments. When a review is rescinded or 
withdrawn, entries are liquidated at the rate at which they entered. 
Therefore, although we do not believe that there are any entries during 
the first or second review periods for Xian Yang, we will instruct CBP 
to liquidate as entered entries from Xian Yang during the first and 
second review periods. Because neither the first nor the second review 
resulted in the calculation of a margin for Xian Yang, we are setting 
the cash deposit rate at 3.83 percent, effective December 12, 2003, the 
date of the Timken Notice.
    This notice is issued and published in accordance with section 
751(a)(1) of the Act.

    Dated: February 9, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-3258 Filed 2-12-04; 8:45 am]
BILLING CODE 3510-DS-P