[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:

------------------------------------------------------------------------
                                                       Weighted-average
            Exporter/manfacturer/producer              margin percentage
------------------------------------------------------------------------
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.)................
------------------------------------------------------------------------

    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