[Federal Register Volume 69, Number 217 (Wednesday, November 10, 2004)]
[Notices]
[Pages 65148-65151]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3127]
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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: Final Results, Partial Rescission and Termination of
a Partial Deferral of the 2002-2003 Administrative Review.
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Final Results, Partial Rescission and Termination of
a Partial Deferral of the 2002-2003 Administrative Review.
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SUMMARY: We have determined that sales of certain non-frozen apple
juice concentrate from the People's Republic of China were not made
below normal value during the period June 1, 2002, through May 31,
2003, by Gansu Tongda Fruit Juice Beverage Company Ltd. We are also
rescinding the review, in part, in accordance with 19 CFR 351.213(d)(3)
and terminating an earlier deferral of the initiation of the
administrative review for four respondents.
Based on our review of comments received and a reexamination of
surrogate value data, we have made certain changes in the margin
calculations for Gansu Tongda Fruit Juice Beverage Company Ltd. The
final weighted-average dumping margin for Gansu Tongda Fruit Juice
Beverage Company Ltd. is 0.03 percent, which is de minimis. Based on
these final results of review, we will instruct U.S. Customs and Border
Protection to liquidate all appropriate entries without regard to
antidumping duties.
EFFECTIVE DATE: November 10, 2004.
FOR FURTHER INFORMATION CONTACT: Audrey Twyman, Stephen Cho, or John
Brinkmann, AD/CVD Operations, Office I, 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, and (202) 482-4126, respectively.
SUPPLEMENTARY INFORMATION:
Background
On July 6, 2004, the Department published the preliminary results
of this review of certain non-frozen apple juice concentrate from the
People's Republic of China (``PRC''). See Certain Non-Frozen Apple
Juice Concentrate From the People's Republic of China:
[[Page 65149]]
Preliminary Results, Partial Rescission, and Partial Deferral of 2002-
2003 Administrative Review, 69 FR 40612 (July 6, 2004) (``Preliminary
Results''). The period of review (``POR'') is June 1, 2002, through May
31, 2003. This review covers Gansu Tongda Fruit Juice Beverage Company
Ltd. (referred to as ``the respondent'' or ``Gansu Tongda'').
We sent a fourth supplemental questionnaire on July 1, 2004, and
received a response on July 26, 2004.
We invited parties to comment on the Preliminary Results. On August
6, 2004, we received a case brief from Gansu Tongda. No rebuttal briefs
were submitted. No hearing was held because none was requested.
The Department has conducted this administrative review in
accordance with section 751 of the the Tariff Act of 1930, as amended
(``the Act'').
Scope of Review
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 currently classifiable 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.
Rescission of Review in Part
As noted in the Preliminary Results, Xian Asia Qin Fruit Co., Ltd.
(``Xian Asia''), Xian Yang Fuan Juice Co., Ltd. (``Xian Yang''), and
Shaanxi Hengxing Fruit Juice Co., Ltd. (``Hengxing'') requested that
the Department rescind their administrative reviews. Pursuant to 19 CFR
351.213(d)(1), because Xian Asia, Xian Yang, and Hengxing withdrew
their requests for review within 90 days of the date of publication of
the notice of initiation of this review and no other party requested a
review of these companies, we are rescinding the administrative reviews
of Xian Asia, Xian Yang, and Hengxing.
Termination of Deferral of Review
As noted in the Preliminary Results, based upon requests from
Yantai Oriental Juice Co., Ltd. (``Oriental''), SDIC Zhonglu Fruit
Juice Co., Ltd. (``Zhonglu''), Sanmenxia Lakeside Fruit Juice Co., Ltd.
(``Lakeside''), and Shaanxi Haisheng Fresh Fruit Juice Co., Ltd.
(``Haisheng''), pursuant to 19 CFR 351.213(c) we granted a one-year
deferral of the administrative review for the period June 1, 2002,
through May 31, 2003. See Initiation of Antidumping and Countervailing
Duty Administrative Reviews, Requests for Revocation, in Part, and
Deferral of Administrative Reviews, 2003 68 FR 44524 (July 29, 2003).
However, as Oriental, Zhonglu, Haisheng and Lakeside were subsequently
excluded from the order pursuant to the February 13, 2004, Notice of
Amended Final Determination and Amended Order Pursuant to Final Court
Decision, (69 FR 7197), the Department did not initiate the
administrative review for these companies in July 2004, the month
following the next anniversary month. Accordingly, the deferral of the
2002-2003 administrative review is terminated for these companies.
Collapsing Gansu Tongda and Affiliates
In the Preliminary Results, we collapsed Gansu Tongda with its two
affiliated producers/exporters of subject merchandise (i.e., Tongda
Fruit Juice and Beverage Liquan Co., Ltd. (``Liquan'') and Tongda Fruit
Juice & Beverage Binxian Co., Ltd. (``Binxian'')). We emphasized in the
Preliminary Results that we would consider collapsing affiliated
producers in the non-market economy (``NME'') context on a case-by-case
basis as long as it did not conflict with our NME methodology or
separate-rates test. We assigned the resulting margin only to Gansu
Tongda, not the collapsed entity, in accordance with our normal NME
practice to assign separate rates only to respondent exporters. We did
not specifically address the issue of whether Gansu Tongda's rate
should be applied to its affiliates because we needed to obtain
information from its affiliates in order to make a separate-rates
determination in relation to the entity as a whole. Since the
Preliminary Results, we issued separate-rates questionnaires to Gansu
Tongda's two affiliated producers of subject merchandise.
After reconsideration of the record facts, in accordance with
section 771(33) of the Act and the criteria enumerated in 19 CFR
351.401(f), for purposes of the final results, we determined it
appropriate to collapse Gansu Tongda with its affiliates, Liquan and
Binxian. We note that our rationale for collapsing, i.e., to prevent
manipulation of price and/or production (see 19 CFR 351.401(f)(2)),
applies to both producers and exporters, if the facts indicate that
producers of like merchandise are affiliated as a result of their
relationship with an exporter. Furthermore, we applied the
``collapsed'' rate to Gansu Tongda and all of the above-mentioned
affiliates comprising the collapsed entity because we determined that
the entity as a whole is entitled to a separate rate (see ``Separate
Rates'' section below). This determination is specific to the facts
presented in this review and based on several considerations, including
the structure of the collapsed entity, the level of control between/
among affiliates and the level of participation by each affiliate in
the proceeding.
Separate Rates
In the Preliminary Results we considered Gansu Tongda in our
separate-rates analysis and granted a separate rate to Gansu Tongda.
For purposes of the final results, we have revisited our separate-rates
analysis as a result of our collapsing decision discussed above, and
have now considered Gansu Tongda, Liquan, and Binxian as a collapsed
entity for purposes of determining whether or not the collapsed entity
as a whole is entitled to a separate rate.
In proceedings involving NME countries, the Department begins with
a rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a single
antidumping duty deposit rate (i.e., a PRC-wide rate). Thus, a
separate-rates analysis is necessary to determine whether the export
activities of the collapsed entity as a whole are independent from
government control. (See Notice of Final Determination of Sales at Less
Than Fair Value: Bicycles From the People's Republic of China
(``Bicycles''), 61 FR 56570 (April 30, 1996).) To establish whether a
firm is sufficiently independent in its export activities from
government control to be entitled to a separate rate, the Department
utilizes a test arising from 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''), and amplified in 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
[[Page 65150]]
rates in NME cases only if the respondent can demonstrate the absence
of both de jure and de facto government control over export activities.
1. De Jure Control
Evidence supporting, though not requiring, a finding of de jure
absence of government control over exporter 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.
Gansu Tongda and its affiliates have placed on the administrative
record the following documents to demonstrate absence of de jure
control: the ``Foreign Trade Law of the People's Republic of China'',
the ``Company Law of the People's Republic of China'', and the
``Administrative Regulations of the People's Republic of China
Governing the Registration of Legal Corporations.''
As in prior cases, we have analyzed these laws and have found them
to establish sufficiently an absence of de jure control absent proof on
the record to the contrary. (See, e.g., Final Determination of Sales at
Less than Fair Value: Furfuryl Alcohol from the People's Republic of
China, 60 FR 22544 (May 8, 1995) (``Furfuryl Alcohol''), and
Preliminary Determination of Sales at Less Than Fair Value: Certain
Partial-Extension Steel Drawer Slides with Rollers from the People's
Republic of China, 60 FR 29571 (June 5, 1995).)
2. De Facto Control
As stated in previous cases, there is some evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. (See
Silicon Carbide, 59 FR at 22587, and Furfuryl Alcohol, 60 FR at 22544.)
Therefore, the Department has determined that an analysis of de facto
control is critical in determining whether the respondents are, in
fact, subject to a degree of government control which would preclude
the Department from assigning separate rates.
The Department typically considers four factors in evaluating
whether each respondent is subject to de facto government control of
its export functions: (1) whether the export prices are set by, or
subject to the approval of, a governmental authority; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding the disposition of profits or
financing of losses. (See Silicon Carbide, 59 FR at 22587 and Furfuryl
Alcohol, 60 FR at 22545.)
Gansu Tongda and its collapsed affiliates each have asserted the
following: (1) they establish their own export prices; (2) they
negotiate contracts without guidance from any government entities or
organizations; (3) they make their own personnel decisions; and (4)
they retain the proceeds of their export sales, use profits according
to their business needs, and have the authority to sell their assets
and to obtain loans. Additionally, their questionnaire responses
indicate that their pricing during the POR does not suggest
coordination among unaffiliated exporters. As a result, there is a
sufficient basis to determine that Gansu Tongda, Liquan and Binxian
have demonstrated as a whole a de facto absence of government control
of their export functions and are entitled to a separate rate.
Consequently, we have determined that the ``collapsed'' entity has met
the criteria for the application of a separate rate.
Analysis of Comments Received
All issues raised in the case brief are addressed in the ``Issues
and Decision Memorandum'' from Jeffrey May, Deputy Assistant Secretary
for Import Administration to James J. Jochum, Assistant Secretary for
Import Administration, dated November 3, 2004, (``Decision
Memorandum''), which is hereby adopted by this notice. Attached to this
notice as an Appendix is a list of the issues that 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 review and the
corresponding recommendations in this public memorandum which is on
file in the Central Records Unit, room B-099 of the main Department
building. In addition, a complete version of the Decision Memorandum
can be accessed directly on the Internet at http://www.ia.ita.doc.gov/frn/ under the heading ``China PRC.'' The paper copy and electronic
version of the Decision Memorandum are identical in content.
Changes Since the Preliminary Results
Based on our review of comments received, and a reexamination of
surrogate value data, we have made one change to the calculations for
the final results. This change is discussed in the following Comment in
the Decision Memorandum:
Drum Label: We have revised the weight of a Drum label weight was
revised from 0.28 kg per label to 0.00458 kg per label. See Comment 2
of the Decision Memorandum.
Pomace: We have inflated the value for pomace to the POR because we
state in the June 29, 2004, ``Factors of Production Values Used for the
Preliminary Results,'' that ``{f{time} or all factors where we could
not obtain publicly available prices contemporaneous with the POR, we
adjusted FOP values to the POR using the...U.S. producer price index
(``PPI'').'' The resulting surrogate value for pomace is $26.23 US$/MT.
See Comment 3 of the Decision Memorandum.
Final Results of Review
We determine that the following dumping margin exists for the
following companies for the period June 1, 2002, through May 31, 2003:
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Weighted-average
Exporter/manfacturer/producer margin percentage
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Gansu Tongda Fruit Juice Beverage Company Ltd. 0.03 de minimis
(which includes its affiliates Tongda Fruit Juice
and Beverage Liquan Co., Ltd. and Tongda Fruit
Juice & Beverage Binxian Co., Ltd.)................
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The PRC-wide rate of 51.74 percent applies to all entries of the
subject merchandise except for entries from exporters that are
identified individually above.
Assessment Rates
The Department will issue appropriate assessment instructions
directly to U.S. Customs and Border Protection (``CBP'') within 15 days
of publication of the final results of this review.
In accordance with 19 CFR 351.212(b)(1), we have calculated
importer (or customer)-specific assessment rates for the merchandise
subject to this review. To determine whether the inporter-specific duty
assessment rates were de minimis, in accordance with the requirement
set forth in 19 CFR 351.106(c)(2), we calculated importer (or
customer)-specific ad valorem rates by aggregating the dumping margins
calculated for all U.S. sales to that importer (or customer) and
dividing this amount by the total
[[Page 65151]]
value of the sales to that importer (or customer). Where an importer
(or customer)-specific ad valorem rate was greater than de minimis, we
will direct CBP to apply the ad valorem assessment rates against the
entered value of each of the importer's/customer's entries during the
review period. Where an importer (or customer )-specific ad valorem
rate was de minimis, we will order CBP to liquidate without regard to
antidumping duties. All other entries of the subject merchandise during
the POR will be liquidated at the antidumping duty cash deposit rate in
place at the time of entry.
Cash Deposit Requirements for Administrative Review
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(1) of the Act: (1) the cash deposit rate
for Gansu Tongda, Liquan and Binxian is de minimis, i.e., less than 0.5
percent. Therefore, a cash deposit of zero will be required for those
firms; (2) for previously-reviewed PRC and non-PRC exporters with
separate rates, the cash deposit rate will be the company-specific rate
established for the most recent period during which they were reviewed;
(3) for all other PRC exporters, the rate will be the PRC country-wide
rate, which is 51.74 percent; and (4) for all other non-PRC exporters
of subject merchandise from the PRC, the cash deposit rate will be the
rate applicable to the PRC exporter that supplied that exporter. These
deposit requirements, when imposed, shall remain in effect until
publication of the final results of the next administrative review.
Notification to Importers
This notice also serves as a final 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 doubled antidumping duties.
Notification Regarding APOs
This notice also serves as a reminder to parties subject to
administrative protective orders (``APO'') of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with 19 CFR 351.305, which continues
to govern business proprietary information in this segment of the
proceeding. Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
We are issuing and publishing this determination and notice in
accordance with section 751(a)(1) and 777(i) of the Act.
Dated: November 3, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
APPENDIX
List of Comments and Issues in the Decision Memorandum
Comment 1: The Department's use of Poland as the primary surrogate
country is contrary to law and unsupported by the administrative
record.
Comment 2: The Department should correct the weight for drum labels.
Comment 3: The Department should revise its surrogate value for pomace
by applying the ``PPI'' inflation factor.
[FR Doc. E4-3127 Filed 11-9-04; 8:45 am]
BILLING CODE 3510-DS-S