[Federal Register Volume 74, Number 69 (Monday, April 13, 2009)]
[Notices]
[Pages 16836-16838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-8358]


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DEPARTMENT OF COMMERCE

International Trade Administration

(C-570-938)


Citric Acid and Certain Citrate Salts From the People's Republic 
of China: Final Affirmative Countervailing Duty Determination

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

SUMMARY: The Department of Commerce (``Department'') has determined 
that countervailable subsidies are being provided to producers and 
exporters of citric acid and certain citrate salts (``citric acid'') 
from the People's Republic of China (``PRC''). For information on the 
estimated countervailing duty rates, please see the ``Suspension of 
Liquidation'' section, below.

EFFECTIVE DATE: April 13, 2009.

FOR FURTHER INFORMATION CONTACT: David Neubacher, Shelly Atkinson or 
Damian Felton, AD/CVD Operations, Office 1, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 
(202) 482-5823, (202) 482-0116 or (202) 482-0133, respectively.

SUPPLEMENTARY INFORMATION:

Petitioners

    The petitioners in this investigation are Archer Daniels Midland 
Company, Cargill, Incorporated, and Tate & Lyle America, Inc. 
(collectively, ``Petitioners'').

Period of Investigation

    The period for which we are measuring subsidies, or period of 
investigation, is January 1, 2007, through December 31, 2007.

Case History

    The following events have occurred since the announcement of the 
preliminary determination, which was published in the Federal Register 
on September 19, 2008. See Citric Acid and Certain Citrate Salts From 
the People's Republic of China: Preliminary Affirmative Countervailing 
Duty Determination and Alignment of Final Countervailing Duty 
Determination With Final Antidumping Duty Determination, 73 FR 54367 
(September 19, 2008) (``Preliminary Determination'').
    The Department issued several supplemental questionnaires to the 
Government of the People's Republic of China (``GOC''), TTCA Co., Ltd. 
(formerly Shandong TTCA Biochemical Co., Ltd.) (``TTCA'') and Yixing 
Union Biochemical Co. Ltd. (``Yixing Union'') and its cross-owned 
affiliate Yixing Union Cogeneration Co., Ltd., and received responses 
in September and October 2008.
    Public versions of the questionnaires and responses, as well as the 
various memoranda cited below are available at the Department's Central 
Records Unit (Room 1117 in the HCHB Building) (hereafter referred to as 
``CRU'').
    On September 12, 2008, the Department determined to investigate 
certain subsidies alleged by Petitioners in their submission of August 
8, 2008. See Memorandum to Susan Kuhbach, Senior Director, Office 1, 
entitled ``Analysis of Petitioners' New Subsidy Allegations'' 
(September 12, 2008). On October 1, 2008, the Department issued 
questionnaires to the GOC, TTCA and Yixing Union regarding these new 
subsidy allegations. We received responses to these questionnaires as 
well as to supplemental questionnaires regarding the newly alleged 
submissions in October 2008.
    On October 20, 2008, the Department initiated an investigation of 
TTCA's creditworthiness for the years 2004, 2006 and 2007, pursuant to 
19 CFR 351.505(a)(6). See Memorandum to Susan H. Kuhbach, Senior 
Director, Office 1, entitled ``Uncreditworthy Allegation for TTCA'' 
(October 20, 2008). On February 25, 2009, we issued our preliminary 
determination that TTCA was uncreditworthy for the years investigated. 
See Memorandum to Susan H. Kuhbach, Senior Office Director, AD/CVD 
Operations, Office 1, entitled ``Preliminary Creditworthiness 
Determination for TTCA Co., Ltd.'' (February 25, 2009).
    From November 1 through November 20, 2008, we conducted 
verification of the questionnaire responses submitted by the GOC, TTCA 
and Yixing Union.
    On March 4, 2009, we issued our post-preliminary determination 
regarding the new subsidy allegations and certain other programs 
discovered in the course of the investigation. See Memorandum to Ronald 
K. Lorentzen, Acting Assistant Secretary for Import Administration, 
entitled ``Post-Preliminary Findings for the New Subsidy Allegations'' 
(March 4, 2009).
    We received case briefs from the GOC and Yixing Union on March 12, 
2009, and from Petitioners and TTCA on March 13, 2009. The same parties 
submitted rebuttal briefs on March 18 and 19, 2009, respectively.

[[Page 16837]]

Scope of the Investigation

    The scope of this investigation includes all grades and granulation 
sizes of citric acid, sodium citrate, and potassium citrate in their 
unblended forms, whether dry or in solution, and regardless of 
packaging type. The scope also includes blends of citric acid, sodium 
citrate, and potassium citrate; as well as blends with other 
ingredients, such as sugar, where the unblended form(s) of citric acid, 
sodium citrate, and potassium citrate constitute 40 percent or more, by 
weight, of the blend. The scope of this investigation also includes all 
forms of crude calcium citrate, including dicalcium citrate 
monohydrate, and tricalcium citrate tetrahydrate, which are 
intermediate products in the production of citric acid, sodium citrate, 
and potassium citrate. The scope of this investigation does not include 
calcium citrate that satisfies the standards set forth in the United 
States Pharmacopeia and has been mixed with a functional excipient, 
such as dextrose or starch, where the excipient constitutes at least 2 
percent, by weight, of the product. The scope of this investigation 
includes the hydrous and anhydrous forms of citric acid, the dihydrate 
and anhydrous forms of sodium citrate, otherwise known as citric acid 
sodium salt, and the monohydrate and monopotassium forms of potassium 
citrate. Sodium citrate also includes both trisodium citrate and 
monosodium citrate, which are also known as citric acid trisodium salt 
and citric acid monosodium salt, respectively. Citric acid and sodium 
citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the 
Harmonized Tariff Schedule of the United States (HTSUS), respectively. 
Potassium citrate and crude calcium citrate are classifiable under 
2918.15.5000 and 3824.90.9290 of the HTSUS, respectively. Blends that 
include citric acid, sodium citrate, and potassium citrate are 
classifiable under 3824.90.9290 of the HTSUS. Although the HTSUS 
subheadings are provided for convenience and customs purposes, the 
written description of the merchandise is dispositive.

Injury Test

    Because the PRC is a ``Subsidies Agreement Country'' within the 
meaning of section 701(b) of the Tariff Act of 1930, as amended 
(``Act''), section 701(a)(2) of the Act applies to this investigation. 
Accordingly, the International Trade Commission (``ITC'') must 
determine whether imports of the subject merchandise from the PRC 
materially injure, or threaten material injury to a U.S. industry. On 
June 11, 2008, the ITC published its preliminary determination that 
there is a reasonable indication that an industry in the United States 
is materially injured or threatened with material injury by reason of 
imports from China of citric acid. See Citric Acid and Certain Citrate 
Salts From Canada and China; Determinations, 73 FR 33115 (June 11, 
2008).

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the Memorandum from John M. 
Andersen, Acting Deputy Assistant Secretary for Antidumping and 
Countervailing Duty Operations, to Ronald K. Lorentzen, Acting 
Assistant Secretary for Import Administration, entitled ``Issues and 
Decision Memorandum for the Final Determination in the Countervailing 
Duty Investigation of Citric Acid and Certain Citrate Salts from the 
People's Republic of China'' (April 6, 2009) (hereafter referred to as 
the ``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 this public memorandum in the Department's 
CRU. In addition, a complete version of the Decision Memorandum can be 
accessed directly on the Internet at http://ia.ita.doc.gov/frn/. The 
paper copy and electronic version of the Decision Memorandum are 
identical in content.

Use of Adverse Facts Available

    For purposes of this final determination, we have continued to rely 
on facts available and have again used adverse inferences in accordance 
with sections 776(a) and (b) of the Act to determine the 
countervailable subsidy rates for Anhui BBCA Biochemical Co., Ltd. 
(``Anhui BBCA''), which is one of the three companies selected to 
respond to our questionnaires. A full discussion of our decision to 
apply adverse facts available is presented in the Decision Memorandum 
in the section ``Use of Facts Otherwise Available and Adverse Facts 
Available.''
    In a departure from the Preliminary Determination, the Department 
now finds that the use of ``facts otherwise available'' is warranted 
with regard to policy lending because TTCA provided information that 
could not be verified. See Decision Memorandum, at Comment 19. 
Moreover, TTCA failed to cooperate by not acting to the best of its 
ability in this investigation. Accordingly, we find that an adverse 
inference is warranted, pursuant to section 776(b) of the Act, to 
ensure that TTCA does not obtain a more favorable result than had it 
fully complied with our request for information. See Decision 
Memorandum, at Comment 19.
    For reasons explained in the ``Analysis of Programs'' section I.A 
(Programs Determined to Be Countervailable: Energy and Water Savings 
Grant) in the Decision Memorandum, we find the use of ``facts otherwise 
available'' is warranted, pursuant to section 776(a)(2)(A) and (D) of 
the Act, with regard to the specificity determination for the Energy 
and Water Savings Grant program because the GOC would not provide 
requested information and did not provide verifiable program usage 
data. Because the GOC refused to provide information that would allow 
for a de facto specificity analysis using accurate and verifiable data 
and failed to act to the best of its ability, we have employed an 
adverse inference in selecting from among the facts otherwise 
available. Accordingly, pursuant to section 776(b) of the Act, we find 
that this program is de facto specific within the meaning of section 
771(5A)(D)(iii) of the Act.

Suspension of Liquidation

    In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have 
calculated an individual rate for the companies under investigation, 
Anhui BBCA, TTCA and Yixing Union. Section 705(c)(5)(A)(i) of the Act 
states that for companies not investigated, we will determine an all-
others rate equal to the weighted average countervailable subsidy rates 
established for exporters and producers individually investigated, 
excluding any zero and de minimis countervailable subsidy rates, and 
any rates determined entirely under section 776 of the Act. As Anhui 
BBCA's rate was calculated under section 776 of the Act, it is not 
included in the all-others rate.
    Notwithstanding the language of section 705(c)(5)(A)(i) of the Act, 
we have not calculated the all-others rate by weight averaging the 
rates of TTCA and Yixing Union because doing so risks disclosure of 
proprietary information. Therefore, we have calculated a simple average 
of the two responding firms' rates. Finally, because TTCA's rate 
includes export subsidies, the all-others rate also includes export 
subsidies.

[[Page 16838]]



------------------------------------------------------------------------
                Exporter/Manufacturer                  Net Subsidy Rate
------------------------------------------------------------------------
TTCA Co., Ltd. (a.k.a. Shandong TTCA Biochemistry                  12.68
 Co., Ltd.).........................................
Yixing Union Biochemical Co., Ltd.; and Yixing Union                3.60
 Cogeneration Co., Ltd..............................
Anhui BBCA Biochemical Co., Ltd.....................              118.95
All-Others..........................................                8.14
------------------------------------------------------------------------

    In accordance with section 703(d) of the Act, we instructed U.S. 
Customs and Border Protection to discontinue the suspension of 
liquidation for countervailing duty purposes for subject merchandise 
entered on or after January 17, 2009, but to continue the suspension of 
liquidation of entries made from September 19, 2008, through January 
16, 2009.
    We will issue a countervailing duty order and reinstate the 
suspension of liquidation under section 706(a) of the Act if the ITC 
issues a final affirmative injury determination, and will require a 
cash deposit of estimated countervailing duties for such entries of 
merchandise in the amounts indicated above. If the ITC determines that 
material injury, or threat of material injury, does not exist, this 
proceeding will be terminated and all estimated duties deposited or 
securities posted as a result of the suspension of liquidation will be 
refunded or canceled.

ITC Notification

    In accordance with section 705(d) of the Act, we will notify the 
ITC of our determination. In addition, we are making available to the 
ITC all non-privileged and non-proprietary information related to this 
investigation. We will allow the ITC access to all privileged and 
business proprietary information in our files, provided the ITC 
confirms that it will not disclose such information, either publicly or 
under an APO, without the written consent of the Assistant Secretary 
for Import Administration.

Return or Destruction of Proprietary Information

    In the event that the ITC issues a final negative injury 
determination, this notice will serve as the only reminder to parties 
subject to an administrative protective order (``APO'') of their 
responsibility concerning the destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305(a)(3). 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.
    This determination is published pursuant to sections 705(d) and 
777(i) of the Act.

    Dated: April 6, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.

APPENDIX

List of Comments and Issues in the Decision Memorandum

General Issues

Comment 1 Application of CVD Law to a Country the Department treats as 
an NME in a Parallel AD Investigation
Comment 2 Double Counting/Overlapping Remedies
Comment 3 Requirement to Provide Evidence of Lower Prices
Comment 4 Proposed Cutoff Date for Identifying Subsidies

Program Specific Issues

Comment 5 Policy Lending Whether Policy Lending Program Exists
Comment 6 Policy Lending Whether CIB is a Government Authority
Comment 7 Benchmark - Whether the Department is Required to Use a 
Chinese Benchmark
Comment 8 Benchmark - Whether Department Should Make an Inflation 
Adjustment to Its Regression-based Benchmark Rate
Comment 9 Benchmark - Whether the Department has a Basis for Treating 
``Medium-term'' as Having Terms of Two Years or Less
Comment 10 Benchmark - Whether to Remove Certain Countries from the IMF 
Data
Comment 11 Benchmark - Whether Negative Inflation-adjusted Interest 
Rates Should be Excluded from the Regressions
Comment 12 Benchmark - Whether the Regression is Statistically Invalid
Comment 13 Benchmark - Whether the Difference Between Long- and Short-
term Interest Rates Cannot be Based on BB-grade
Comment 14 Benchmark - Whether the Adjustment for Long-term Rates 
should be Additive or Multiplicative
Comment 15 Benchmark - Whether the Discount Rate Computation is Flawed
Comment 16 FIE Tax Programs - Whether FIE Tax Programs are Specific
Comment 17 FIE Tax Programs- Whether They Have Been Terminated

TTCA Specific Issues

Comment 18 Whether the Application of Total AFA is Warranted
Comment 19 Whether the Application of Partial AFA is Warranted
Comment 20 Provision of Plant and Equipment for LTAR Whether the 
Department is Required to Issue a Finding
Comment 21 Provision of Plant and Equipment for LTAR Proposed 
Methodology for Measuring the Benefit
Comment 22 Provision of Land for LTAR Whether Land is a Good or a 
Service
Comment 23 Provision of Land for LTAR Whether the Use of an External 
Benchmark is Appropriate
Comment 24 Provision of Land for LTAR Whether Benchmark is New Factual 
Information
Comment 25 Whether the Appropriate Benchmark Interest Rate for Floating 
Loan
Comment 26 Whether To Correct a Clerical Error in TTCA's Subsidy 
Calculation

Yixing Union Specific Issues

Comment 27 Attribution of Yixing Union and Cogeneration Based on Cross-
Ownership
Comment 28 Whether to Apply AFA for Land in the YEDZ for LTAR Program
Comment 29 How to Treat the Transfer of Allocated to Granted Land-use 
Rights from HPP to Cogeneration
Comment 30 Whether the Department's Finding Regarding Land-use Rights 
in Yixing City Violates Due Process
Comment 31 Whether the Department's Finding Regarding the Torch Program 
Violates Due Process
[FR Doc. E9-8358 Filed 4-10-09; 8:45 am]
BILLING CODE: 3510-DS-S