[Federal Register Volume 74, Number 124 (Tuesday, June 30, 2009)]
[Notices]
[Pages 31238-31241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15454]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-855]


Non-Frozen Apple Juice Concentrate from the People's Republic of 
China: Preliminary Results for the Administrative Review

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

SUMMARY: On June 5, 2000, the Department of Commerce (``Department'') 
published in the Federal Register the antidumping duty order on certain 
non-frozen apple juice concentrate from the People's Republic of China 
(``PRC''). The Department is conducting an administrative review of 
this Order, covering the period of review (``POR'') of June 1, 2007, 
through May 31, 2008. If these preliminary results are adopted in our 
final results of review, we will instruct U.S. Customs and Border 
Protection (``CBP'') to assess antidumping duties on entries of subject 
merchandise during the POR for which the importer-specific assessment 
rates are above de minimis.

DATES: Effective Date: June 30, 2009.

FOR FURTHER INFORMATION CONTACT: Alexis Polovina, AD/CVD Operations, 
Office 9, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington DC 20230; telephone: (202) 482-3927.

SUPPLEMENTARY INFORMATION: 

General Background

    On June 5, 2000, the Department of Commerce (``Department'') 
published in the Federal Register the antidumping duty order on certain 
non-frozen apple juice concentrate from the People's Republic of China 
(``PRC''). See 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) (``Order''). On July 30, 2008, the Department published 
a notice of initiation of an administrative review of certain non-
frozen apple juice concentrate from the People's Republic of China 
covering the period June 1, 2007, through May 31, 2008. See Initiation 
of Antidumping and Countervailing Duty Administrative Reviews, Request 
for Revocation in Part, and Deferral of Administrative Review, 73 FR 
44220 (July 30, 2008).
    On August 15, 2008, the Department issued original questionnaires 
to Itochu Corporation and its wholly-owned subsidiaries, Yitian Juice 
(Shaanxi) Co., Ltd. and Laiyang Yitian Co., Ltd., (collectively 
``Itochu''). Between September 2008 and March 2009, Itochu submitted 
responses to the original sections A, C, and D questionnaires and 
supplemental sections A, C, and D questionnaires.

Extension of Time Limits

    On February 5, 2009, the Department extended the deadline for the 
preliminary results of this review by 120 days, to June 30, 2009. See 
Certain Non-Frozen Apple Juice Concentrate From the People's Republic 
of China: Extension of Time Limits for the Preliminary Results of the 
Administrative Review, 74 FR 6139 (February 5, 2009) (``Extension'').

Surrogate Country and Surrogate Values

    On January 16, 2009, the Department sent interested parties a 
letter requesting comments on surrogate country selection and 
information pertaining to valuing factors of production (``FOP''). On 
February 24, 2009, the Itochu submitted surrogate country comments. On 
March 16, 2009, Itochu submitted surrogate value data. No other party 
is active in this review.

Verification

    Pursuant to 19 CFR 351.307(b)(iv), we conducted verification of the 
sales and FOPs for Itochu between April 6-10, 2009. See Memorandum to 
the File from Alexis Polovina, Case Analyst through Alex Villanueva, 
Program Manager, Verification of the Sales and Factors Response of 
Itochu Corporation and its Affiliate Yitian Juice (Shaanxi) Co., Ltd. 
(``Shaanxi Yitian'') in the Antidumping Administrative Review of Non-
Frozen Apple Juice Concentrate, dated May 5, 2009 (``Shaanxi Yitian 
Verification Report'').

Scope of the Order

    The product covered by this order is certain non-frozen apple juice 
concentrate. Apple juice concentrate is defined as all non-frozen 
concentrated

[[Page 31239]]

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.

Non-Market Economy Country Status

    The Department has treated the PRC as a non-market economy 
(``NME'') country in all previous antidumping cases. In accordance with 
section 771(18)(C)(i) of the Tariff Act of 1930, as amended (``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 apple juice 
concentrate industry is a market-oriented industry. Accordingly, we 
calculated normal value (``NV'') in accordance with section 773(c) of 
the Act, which applies to NME countries.

Separate Rate Determinations

    In its questionnaire responses, Yitian Juice (Shaanxi) Co., Ltd. 
and Laiyang Yitian Co., Ltd., reported that they are wholly foreign-
owned by Itochu Corporation, which is located in Japan. Therefore, 
because there is no PRC ownership of Itochu and we have no evidence 
indicating that they are under the control of the PRC, a separate rate 
analysis is not necessary to determine whether this company is 
independent from government control. See Certain Steel Nails from the 
People's Republic of China: Preliminary Determination of Sales at Less 
Than Fair Value and Partial Affirmative Determination of Critical 
Circumstances and Postponement of Final Determination, 73 FR 3928 
(January 23, 2008) (where the respondent was wholly foreign-owned, and 
thus, qualified for a separate rate). Accordingly, we reviewed all U.S. 
sales of subject merchandise made by Itochu during the POR and 
calculated a dumping margin which is assigned to Itochu Corporation.

Surrogate Country

    When the Department is investigating imports from an NME country, 
section 773(c)(1) of the Act directs it to base NV, in most 
circumstances, on the NME producer's factors of production (FOPs), 
valued in a surrogate market economy country or countries considered to 
be appropriate by the Department. In accordance with section 773(c)(4) 
of the Act, in valuing the FOPs, the Department shall utilize, to the 
extent possible, the prices or costs of FOPs in one or more market 
economy countries that are: (1) At a level of economic development 
comparable to that of the NME country; and (2) significant producers of 
comparable merchandise.
    The Department determined that India, the Philippines, Indonesia, 
Columbia, Thailand, and Peru are countries comparable to the PRC in 
terms of economic development.\1\ Moreover, it is the Department's 
practice to select an appropriate surrogate country based on the 
availability and reliability of data from the countries. See Department 
Policy Bulletin No. 04.1: Non-Market Economy Surrogate Country 
Selection Process (March 1, 2004) (``Surrogate Country Policy 
Bulletin'').
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    \1\ See Memorandum from Kelly Parkhill, Acting Director, Office 
of Policy, to Alex Villanueva, Program Manager, AD/CVD Enforcement, 
Office 9: Request for a List of Surrogate Countries for an 
Administrative Review of the Antidumping Duty Order on Non-Frozen 
Apple Juice Concentrate (``NFAJC'') from the People's Republic of 
China (``PRC''), dated January 15, 2009 (``Surrogate Country 
List'').
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    Absent world apple juice concentrate production data, the 
Department considered whether any country listed in the Surrogate 
Country List was a net-exporter (i.e., exports more apple juice 
concentrate than it imports) to identify producers of apple juice 
concentrate. See Itochu's Surrogate Country Comments, dated February 
24, 2009. We found that none of the countries listed in the Surrogate 
Country List were net-exporters of apple juice concentrate. See 
Memorandum from Alexis Polovina to the File: Analysis of the 
Preliminary Results of the Administrative Review of Non-Frozen Apple 
Juice Concentrate from the People's Republic of China (``PRC''): Itochu 
Corporation, dated June 23, 2009, at Attachment I. Therefore, the 
Department considered other countries not listed in the Surrogate 
Country List and determined that Poland was a net-exporter of apple 
juice concentrate.
    The record also contains surrogate value information from Poland 
for most inputs, including juice apples, the main input for producing 
apple juice concentrate. In addition, we have surrogate financial 
ratios from Polish juice companies. Therefore, for these preliminary 
results, we have selected Poland as the surrogate country because there 
are no comparable economies in which juice apples are produced. Of the 
countries that are significant producers of identical merchandise, the 
record contains reliable surrogate value information from Poland.
    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
in an antidumping administrative review, interested parties may submit 
publicly available information to value FOPs within 20 days after the 
date of publication of these preliminary results.

U.S. Price

A. Export Price

    In accordance with section 772(a) of the Act, we calculated the 
export price (EP) for sales to the United States because the first sale 
to an unaffiliated party was made before the date of importation and 
the use of constructed EP (``CEP'') was not otherwise warranted. We 
calculated EP based on the price to unaffiliated purchasers in the 
United States.
    We calculated EP based on the price to the unaffiliated purchaser. 
In accordance with section 772(c) of the Act, we deducted from this 
price, where appropriate, amounts for international freight, other U.S. 
transportation expenses, and U.S. customs duties (including merchandise 
processing and harbor maintenance fees). We selected Poland as the 
surrogate country for the reasons explained above in the ``Surrogate 
Country'' section. However, where we were unable to find Polish data to 
value particular FOPs, we valued these inputs using public information 
on the record from India. We valued the deductions for foreign inland 
freight using Indian freight costs. Where, as here, a significant 
portion or all of a specific company's ocean freight was provided 
directly by a market-economy company and paid for in a market-economy 
currency, we used the reported market-economy ocean freight values for 
all United States sales made by that company. See 19 CFR 351.408(c)(1) 
(regulation for the information used to value factors of production).

Normal Value

1. Methodology
    Section 773(c)(1)(B) of the Act provides that the Department shall 
determine the NV using a FOP

[[Page 31240]]

methodology if the merchandise is exported from an NME country and the 
information does not permit the calculation of NV using home-market 
prices, third-country prices, or constructed value under section 773(a) 
of the Act. The Department bases NV on the FOPs because the presence of 
government controls on various aspects of NMEs renders price 
comparisons and the calculation of production costs invalid under the 
Department's normal methodologies.
    During the verification of Itochu, it became apparent that Itochu 
had to produce more subject merchandise than it had agreed to sell to 
the United States customer due to production equipment requirements. 
See Shaanxi Yitian Verification Report at 5-6. Moreover, in Itochu's 
Second Supplemental Response, Itochu explained that the differences 
between the quantity sold and the quantity produced were taken into 
account. Itochu also stated that unique costs associated with out-of-
season production and packaging were incorporated into the final price. 
See Itochu's Response to Second Supplemental Questionnaire: Non-Frozen 
Apple Juice Concentrate from the People's Republic of China, dated 
January 16, 2009. In order to properly reflect the commercial value of 
total production of the subject merchandise during the POR, where 
appropriate, the Department revised Itochu's FOP calculations by 
replacing the denominator with the quantity sold rather than the 
quantity produced.
    We applied surrogate values based on publicly available information 
from Poland for the raw materials, as well as packaging, factory 
overhead, selling, general and administrative expenses (``SG&A''), and 
profit ratios. However, because we were unable to obtain Polish data to 
value the energy and transportation, we have relied upon publicly 
available information on the record from India. Itochu shipped the 
subject merchandise using a market economy freight carrier paid for in 
a market economy currency. Therefore, the Department is not applying a 
surrogate value for international freight.
2. Factor Valuations
    In accordance with section 773(c) of the Act, we calculated NV 
based on FOPs reported by Itochu during the POR. To calculate NV, we 
multiplied the reported per-unit factor-consumption rates by publicly 
available Polish and Indian surrogate values. In selecting the 
surrogate values, we considered the quality, specificity, and 
contemporaneity of the data. As appropriate, we adjusted input prices 
by including freight costs to make them delivered prices. Specifically, 
we added to Polish import surrogate values a surrogate freight cost 
using the shorter of the reported distance from the domestic supplier 
to the factory of production or the distance from the nearest seaport 
to the factory of production where appropriate. This adjustment is in 
accordance with the Court of Appeals for the Federal Circuit's decision 
in Sigma Corp. v. United States, 117 F. 3d 1401, 1407-1408 (Fed. Cir. 
1997). Where we did not use Polish data, we calculated freight costs 
based on the reported distance from the supplier to the factory.
    It is the Department's practice to calculate price index adjustors 
to inflate or deflate, as appropriate, surrogate values that are not 
contemporaneous with the POR using the wholesale price index (``WPI'') 
for the subject country. See Notice of Preliminary Determination of 
Sales at Less Than Fair Value and Postponement of Final Determination: 
Hand Trucks and Certain Parts Thereof from the People's Republic of 
China, 69 FR 29509 (May 24, 2004). All of the Polish surrogate values 
were contemporaneous with the POR. However, some Indian surrogate 
values were adjusted using the WPI for India, as published in the 
International Financial Statistics of the International Monetary Fund.
    Polish and Indian surrogate values denominated in foreign 
currencies were converted to U.S. dollars using the official exchange 
rate recorded on the date of sale based on exchange rate data from the 
Department's Web site.
    Juice Apples: We valued juice apples using monthly prices of 
processing apples in Poland, covering each month of the POR, except for 
June 2007, for which there was no data, from the Institute of 
Agricultural and Food Economics, National Research Institute.
    Amylase, Pectinex, Pectinase, and Packaging: We valued the amylase 
enzyme, pectinex enzyme, and pectinse enzyme, and all packaging using 
World Trade Atlas (``WTA'') data for Poland during the POR, published 
by Global Trade Information Services, Inc., which is sourced from 
EuroStat data.
    Energy: We valued electricity using price data for small, medium, 
and large industries, as published by the Central Electricity Authority 
of the Government of India in its publication titled Electricity Tariff 
& Duty and Average Rates of Electricity Supply in India, dated July 
2006. These electricity rates represent actual country-wide, publicly-
available information on tax-exclusive electricity rates charged to 
industries in India. To value coal, we used the Energy & Taxes-
Quarterly Statistics (2008) published by the International Energy 
Agency. We valued water using data from the Maharastra Industrial 
Development Corporation. This source provides industrial water rates 
within the Maharashtra province.
    Labor: Pursuant to section 351.408(c)(3) of the Department's 
regulations, we valued labor using the regression-based wage rate for 
the PRC published by Import Administration on its Web site.
    Overhead, SG&A and Profit (``Financial Ratios''): The financial 
ratios were calculated based on the 2007 financial statements for two 
Polish juice producers, Sokpol Koncentraty sp.zo.o (``Sokpol''), and 
TAB Koncentraty sp.zo.o (``TAB'').

Preliminary Results of the Review

    The Department has determined that the following preliminary 
dumping margins exist for the period June 1, 2007, through May 31, 
2008:

------------------------------------------------------------------------
             Non-frozen apple juice concentrate from the PRC
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                                                       Weighted-average
                      Exporter                         margin (percent)
------------------------------------------------------------------------
Itochu Corporation..................................                0.00
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Disclosure

    The Department will disclose to parties of this proceeding the 
calculations performed in reaching the preliminary results within five 
days of the date of publication of this notice in accordance with 19 
CFR 351.224(b).

Comments

    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
of this administrative review, interested parties may submit publicly 
available information to value FOPs within 20 days after the date of 
publication of these preliminary results. Interested parties must 
provide the Department with supporting documentation for the publicly 
available information to value each FOP. Additionally, in accordance 
with 19 CFR 351.301(c)(1), for the final results of this administrative 
review, interested parties may submit factual information to rebut, 
clarify, or correct factual information submitted by an interested 
party less than ten days before, on, or after, the applicable deadline 
for submission of such factual information. However, the Department 
notes that 19 CFR 351.301(c)(1) permits new information only insofar as 
it

[[Page 31241]]

rebuts, clarifies, or corrects information recently placed on the 
record.\2\
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    \2\ See Glycine from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review and Final 
Rescission, in Part 72 FR 58809 (October 17, 2007), and accompanying 
Issues and Decision Memorandum at Comment 2.
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    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of this administrative review. See 19 CFR 
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, 
limited to issues raised in such briefs or comments, may be filed no 
later than five days after the deadline for submitting the case briefs. 
See 19 CFR 351.309(d). The Department requests that interested parties 
provide an executive summary of each argument contained within the case 
briefs and rebuttal briefs.
    Any interested party may request a hearing within 30 days of 
publication of these preliminary results. See 19 CFR 351.310(c). 
Requests should contain the following information: (1) The party's 
name, address, and telephone number; (2) the number of participants; 
and (3) a list of the issues to be discussed. Oral presentations will 
be limited to issues raised in the briefs. If we receive a request for 
a hearing, we plan to hold the hearing seven days after the deadline 
for submission of the rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230.
    The Department intends to issue the final results of this 
administrative review, which will include the results of its analysis 
raised in any such comments, within 120 days of publication of this 
preliminary result, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

    Upon completion of the final results, pursuant to 19 CFR 
351.212(b), the Department will determine, and CBP shall assess, 
antidumping duties on all appropriate entries on an ad valorem basis. 
The Department intends to issue assessment instructions to CBP 15 days 
after the date of publication of the final results of review. If these 
preliminary results are adopted in our final results of review, the 
Department shall determine, and CBP shall assess, antidumping duties on 
all appropriate entries. Pursuant to 19 CFR 351.212(b)(1), we will 
calculate importer-specific (or customer) duty assessment rates. We 
will instruct CBP to assess antidumping duties on all appropriate 
entries covered by this review if any importer-specific assessment rate 
calculated in the final results of this is above de minimis, i.e., less 
than 0.50 percent.

Cash-Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of subject merchandise from Itochu entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For subject 
merchandise exported by Itochu, no deposit will be required; (2) for 
companies previously found to be entitled to a separate rate in a prior 
segment of the proceeding, and for which no review has been requested, 
the cash deposit rate will continue to be the rate established in the 
most recent review of that company; (3) for all other PRC exporters, 
the cash deposit rate will be 51.74 percent, the PRC country-wide ad 
valorem rate; and (4) for non-PRC exporters of subject merchandise from 
the PRC to the United States, the cash deposit rate will be the rate 
applicable to the PRC exporter that supplied that non-PRC exporter. 
These deposit requirements, when imposed, shall remain in effect until 
further notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this POR. 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 this determination in accordance with 
sections 751(a)(1) and 777(i) of the Act, and 351.221(b)(4).

    Dated: June 23, 2009.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
 [FR Doc. E9-15454 Filed 6-29-09; 8:45 am]
BILLING CODE 3510-DS-P