[Federal Register: July 7, 2003 (Volume 68, Number 129)]
[Notices]
[Page 40244-40250]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07jy03-52]
[[Page 40244]]
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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: Preliminary Results of 2001-2002 Administrative
Review and New Shipper Review, and Partial Rescission of Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of 2001-2002 administrative
review and new shipper review, and partial rescission of review.
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SUMMARY: The Department of Commerce is currently conducting the second
administrative review and a new shipper review of the antidumping duty
order on non-frozen apple juice concentrate from the People's Republic
of China, covering the period June 1, 2001, through May 31, 2002.
The new shipper review covers one exporter: Gansu Tongda Fruit
Juice and Beverage Company. We preliminarily determine that sales of
non-frozen apple juice concentrate from the People's Republic of China
were not made below normal value during the period of review by Gansu
Tongda Fruit Juice and Beverage Company.
The administrative review covers five exporters: Shaanxi Haisheng
Fresh Fruit Juice Co., Ltd., Yantai Oriental Juice Co., Ltd., SDIC
Zhonglu Fruit Juice Co., Ltd., Sanmenxia Lakeside Fruit Juice Co.,
Ltd., and Changsha Industrial Products & Minerals Import and Export
Co., Ltd. We preliminarily determine that sales of non-frozen apple
juice concentrate from the People's Republic of China were not made
below normal value during the period of review by Shaanxi Haisheng
Fresh Fruit Juice Co., Ltd., Yantai Oriental Juice Co., Ltd., SDIC
Zhonglu Fruit Juice Co., Ltd., and Sanmenxia Lakeside Fruit Juice Co.,
Ltd.
Changsha Industrial Products & Minerals Import and Export Co., Ltd.
did not respond to the Department's questionnaire and will receive the
facts available rate. See ``Use of Fact Otherwise Available'' section,
below.
If these preliminary results are adopted in our final results of
revivew, we will instruct the U.S. Bureau of Customs and Border
Protection to liquidate appropriate entries for Gansu Tongda Fruit
Juice and Beverage Company without regard for antidumping duties.
However, with respect to Shaanxi Haisheng Fresh Fruit Juice Co., Ltd.,
Yantai Oriental Juice Co., Ltd., SDIC Zhonglu Fruit Juice Co., Ltd.,
Sanmenxia Lakeside Fruit Juice Co., Ltd., and Changsha Industrial
Products & Minerals Import and Export Co., Ltd., there is an injunction
in place from the investigation and ongoing litigation. Therefore,
entries will not be liquidated until the conclusion of the litigation.
Interested parties are invited to comment on these preliminary
results. We will issue the final results no later than 120 days from
the date of publication of this notice.
EFFECTIVE DATE: July 7, 2003.
FOR FURTHER INFORMATION CONTACT: Audrey Twyman, Stephen Cho 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, (202) 482-3798 or
(202) 482-4126, respectively.
SUPPLEMENTARY INFORMATION:
Period of Review
The period of review (``POR'') is June 1, 2001 through May 31,
2002.
Background
On June 5, 2000, the Department published in the Federal Register
(65 FR 35606) the antidumping duty order on certain non-frozen apple
juice concentrate (``AJC'') from the People's Republic of China
(``PRC''). On June 5, 2002, the Department notified interested parties
of the opportunity to request an administrative review of this order
(67 FR 38640). On June 24, 2002, Shaanxi Haisheng Fresh Juice Co., Ltd.
(``Haisheng''), Yantai Oriental Juice Co., Ltd. (``Oriental''), and
SDIC Zhonglu Fruit Juice Co., Ltd. (``Zhonglu'') requested an
administrative review. On June 28, 2002, Coloma Frozen Foods, Inc.,
Green Valley Packers, Knouse Foods Cooperative, Inc., Mason County
Fruit Packers Co-op, Inc., and Tree Top, Inc., (collectively, ``the
petitioners''), requested that the Department conduct an administrative
review of the antidumping order for Haisheng, Sanmenxia Lakeside Fruit
Juice Co., Ltd. (``Lakeside''), Zhonglu, Oriental, Qingdao Nannan Foods
Co., Ltd. (``Nannan''), Xian Asia Qin Fruit Co., Ltd. (``Xian Asia''),
Xian Yang Fuan Juice Co., Ltd. (``Xian Yang''), Changsha Industrial
Products & Minerals Import and Export Co., Ltd. (``Changsha''),
Shandong Foodstuffs Import and Export Corporation (``Shandong''),
Shaanxi Hengxing Fruit Juice Co., Ltd. (``Hengxing''), Shaanxi
Machinery and Equipment Import and Export Corporation (``SAAME''),
Shaanxi Gold Peter Natural Drink Co., Ltd. (``Gold Peter''), and Yantai
North Andre Juice Co., Ltd. (``North Andre'').
On July 10, 2002, North Andre objected to the petitioners' request
for an administrative review of North Andre because it received a zero
percent margin in the less-than-fair-value (``LTFV'') investigation,
and thus, is excluded from the order. See Notice of Amended Final
Determination of Sales at Less Than Fair Value and Antidumping Duty
Order: Certain Non-Frozen Apple Juice From the People's Republic of
China, 65 FR 35606 (June 5, 2000 (``Final Determination''). Therefore,
the Department did not initiate a review for North Andre.
In accordance with 19 CFR 351.221(b)(1), on July 24, 2002, we
published a notice of initiation of this antidumping duty
administrative review (67 FR 48435) for Zhonglu, Oriental, Lakeside,
Changsha, Haisheng, Nannan, Xian Asia, Xian Yang, Shandong, Hengxing,
SAAME, and Gold Peter.
On June 25, 2002, the Department received a request from Gansu
Tongda Fruit Juice and Beverage Company (``Gansu Tongda'') to conduct a
new shipper review. On July 24, 2002, we initiated a new shipper review
of the antidumping order on AJC from the PRC. See Non-Frozen Apple
Juice Concentrate From the People's Republic of China: Initiation of
Antidumping New Shipper Review, 67 FR 48440. On July 26, 2002 Gansu
Tongda waived the time limits applicable to the new shipper review and
agreed to permit the Department to conduct the new shipper review
concurrently with the annual administrative review for 2001-2002.
On August 2, 2002, the Department sent questionnaire to all
respondents and to the Chinese Chamber of Commerce for the Import and
Export of Foodstuffs, Native Produce & Animal By-Products (``China
Chamber''), with a copy to the Embassy of the PRC in the United States,
requesting that the China Chamber also forward the questionnaire to the
respondents named in the initiation notice.
Following the issuance of questionnaire, the following parties
reported that they had no shipments during the POR: Shandong, Nannan,
SAAME, Hengxing, Xian Asia, Gold Peter, and Xian Yang. See ``Partial
Rescission'' section, below.
In September 2002, we received responses the questionnaire from the
following companies: Haisheng, Lakeside, Oriental, Zhonglu and Gansu
Tongda. Changsha did not respond to the Department's original
questionnaire. See ``Use of Fact Otherwise Available'' section, below.
[[Page 40245]]
On August 14, 2002, April 4, 2003, and June 6, 2003, the Department
invited interested parties to comment on surrogate country selection
and to provide publicly available information for valuing the factors
of production. We received responses from Haisheng, Oriental, Zhonglu
and Gansu Tongda on May 5, 2003.
We issued supplemental questionnaire to Lakeside, Haisheng,
Zhonglu, Oriental and Gansu Tongda, and received responses by January
10, 2003.
On January 24, 2003, the Department published a notice postponing
the preliminary results of this review until June 30, 2003. See
Extension of Time Limit for the Preliminary Results of the 2001-2002
Antidumping Duty Administrative Review and New Shipper Review, 68 FR
3510.
We note that the Petitioners have not made any written submissions
in this proceeding.
Scope of the Order
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 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.
Partial Rescission
In accordance with 19 CFR 351.213(d)(3), we are preliminarily
rescinding this review with respect to Shandong, Gold Peter, Nannan,
SAAME, Hengxing, Xian Asia, and Xian Yang, which reported that they
made no shipments of subject merchandise during this POR. We examined
shipment data furnished by the U.S. Bureau of Customs and Border
Protection and are satisfied that the record does not indicate that
there were U.S. entries of subject merchandise from these companies
during the POR.
Separate Rates Determination
The Department has treated the PRC as a nonmarket economy (``NME'')
country in all previous antidumping cases. In accordance with section
771(18)(C)(i) of the Tariff Act of 1930, as amended (``the 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 AJC industry is a market-
oriented industry.
Therefore, we are treating the PRC as an NME country within the
meaning of section 773(c) of the Act. We allow companies in NME
countries to receive separate antidumping duty rates for purposes of
assessment and cash deposits when those companies can demonstrate an
absence of government control, both in law and in fact, with respect to
export activities.
To establish whether a company operating in an NME country is
sufficiently independent to be entitled to a separate rate, the
Department analyzes each exporting entity under the test established in
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''), as amplified by 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 rates in NME
cases only if the respondents can demonstrate the absence of both de
jure and de facto governmental control over export activities.
Absence of De Jure Control
Evidence supporting, though not requiring, a finding of de jure
absence of government control over export 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.
Haisheng, Zhonglu, Oriental, Lakeside and Gansu Tongda have placed
a number of documents on the record to demonstrate absence of de jure
government control, including ``Foreign Trade Law of the People's
Republic of China'' (``Foreign Trade Law''), ``Company Law of the PRC''
(``Company Law''), the ``Administrative Regulations of the People's
Republic of China Governing the Registration of Legal Corporations''
(``Administrative Regulations''), the ``Law of the People's Republic of
China on Chinese-Foreign Cooperative Joint Ventures'' (``Joint Ventures
Law''), and the ``Law of the People's Republic of China on Industrial
Enterprises Owned by the Whole People'' (``Industrial Enterprise
Law''). The Foreign Trade Law grants autonomy to foreign trade
operators in management decisions and establishes accountability for
their own profits and losses. In prior cases, the Department has
analyzed the Foreign Trade Law and found that it establishes an absence
of de jure control. (See, e.g., Notice of Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final Determination:
Certain Partial-Extension Steel Drawer Slides With Rollers From the
People's Republic of China, 60 FR 29571 (June 5, 1995); Final
Determination of Sales at Less Than Fair Value: Certain Preserved
Mushrooms From the People's Republic of China, 63 FR 72255 (December
31, 1998) (``Mushrooms'')). We have no new information in this
proceeding which would cause us to reconsider this determination.
The Company Law is designed to meet the PRC's needs of establishing
a modern enterprise system, and to maintain social and economic order.
The Department has noted that the Company Law supports an absence of de
jure control because of its emphasis on the responsibility of each
company for its own profits and losses, thereby decentralizing control
of companies.
In keeping with the Company Law, the Administrative Regulations
safeguard social and economic order, as well as establishing an
administrative system for the registration of corporations. The
Department has reviewed the Administrative Regulations and concluded
that they show an absence of de jure control by requiring companies to
bear civil liabilities independently, thereby decentralizing control of
companies.
The Joint Ventures Law states that Chinese and foreign parties
shall share earnings and bear risks jointly. An analysis of the Joint
Ventures Law by the Department further indicates lack of de jure
control for Oriental, Xian Asia, and Zhonglu, those respondents
actually subject to this law.
The Industrial Enterprises Law provides that enterprises owned by
``the whole people'' shall make their own management decisions, be
responsible for their own profits and losses, choose their own
suppliers, and purchase their own goods and materials. As in prior
[[Page 40246]]
PRC cases, the Department has analyzed the Industrial Enterprises Law
and found that this law establishes mechanisms for private control of
companies, which indicates an absence of de jure control. See Pure
Magnesium From the People's Republic of China: Final Results of New
Shipper Review, 63 FR 3085, 3086 (January 21, 1998).
According to the respondents, AJC exports are not affected by quota
allocations or export license requirements. The Department has examined
the record in this case and does not find any evidence that AJC exports
are affected by quota allocations or export license requirements. By
contrast, the evidence on the record demonstrates that the producers/
exporters have the autonomy to set the price at whatever level they
wish through independent price negotiations with their foreign
customers and without government interference.
Accordingly, we preliminarily determine that there is an absence of
de jure government control over export pricing and marketing decisions
of the respondents.
Absence of De Facto Control
De facto absence of government control over exports is based on
four factors: (1) Whether each exporter sets its own export prices
independently of the government and without the approval of a
government authority; (2) whether each exporter retains the proceeds
from its sales and makes independent decisions regarding the
disposition of profits or financing of losses; (3) whether each
exporter has the authority to negotiate and sign contracts and other
agreements; (4) whether each exporter has autonomy from the government
regarding the selection of management (See Silicon Carbide, 59 FR at
22587; Sparklers, 56 FR at 20589).
As stated in previous cases, there is evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. (See
Mushrooms, 63 FR at 72255). Therefore, the Department has determined
that an analysis of de facto control is critical in determining whether
respondents are, in fact, subject to a degree of governmental control
which would preclude the Department from assigning separate rates.
The Department has reviewed the record in this case and notes that
each respondent: (1) Establishes its own export prices; (2) negotiates
contracts without guidance from any governmental entities or
organizations; (3) makes its own personnel decisions; (4) retains the
proceeds from export sales and uses profits according to its business
needs without any restrictions; and (5) does not coordinate or consult
with other exporters regarding pricing decisions.
The information on the record supports a preliminary finding that
there is an absence of de facto governmental control of the export
functions of these companies. Consequently, we preliminarily determine
that all responding exporters have met the criteria for the application
of separate rates.
Changsha did not submit a response to the Department's antidumping
duty questionnaire, including the separate rates section. We therefore
preliminarily determine that Changsha did not establish its entitlement
to a separate rate in this review and, therefore, is presumed to be
part of the PRC NME entity and, as such, is subject to the PRC country-
wide rate. See the ``Use of Facts Otherwise Available'' section, below.
PRC-Wide Rate and Use of Facts Otherwise Available
As noted above, Changsha is appropriately considered part of the
PRC-wide entity. This entity did not respond to the Department's
questionnaire. Section 776(a)(2) of the Act provides that if an
interested party or any other person: (A) Withholds information that
has been requested by the administering authority; (B) fails to provide
such information by the deadlines for the submission of the information
or in the form and manner requested, subject to subsections (c)(1) and
(e) of section 782; (C) significantly impedes a proceeding under this
title; or (D) provides such information but the information cannot be
verified as provided in section 782(i), the Department shall, subject
to section 782(d), use the facts otherwise available in reaching the
applicable determination under this title.
Because the PRC entity did not respond to the Department's
questionnaire, we find that, in accordance with sections 776(a)(2)(A)
and (C) of the Act, the use of total facts available is appropriate
(See, e.g., Final Results of Antidumping Duty Administrative Review for
Two Manufactures/Exporters: Certain Preserved Mushrooms from the
People's Republic of China, 65 FR 50183, 50184 (August 17, 2000) (for a
more detailed discussion, See Preliminary Results of Antidumping Duty
Administrative Review for Two Manufacturers/Exporters: Certain
Preserved Mushrooms for the People's Republic of China, 65 FR 40609,
40611 (June 30, 2000)); Notice of Final Determination of Sales at Less
Than Fair Value: Persulfates from the People's Republic of China, 62 FR
27222, 27224 (May 19, 1997); and Certain Grain-Oriented Electrical
Steel from Italy: Final Results of Antidumping Duty Administrative
Review, 62 FR 2655 (January 17, 1997) (for a more detailed discussion,
See Preliminary Results of Antidumping Duty Administrative Review:
Certain Grain-Oriented Electrical Steel from Italy, 61 FR 36551, 36552
(July 4, 1996)). Because the PRC entity provided no information,
sections 782(d) and (e) are not relevant to our analysis.
Section 776(b) of the Act provides that, if the Department finds
that an interested party ``has failed to cooperate by not acting to the
best of its ability to comply with a request for information,'' the
Department may use information that is adverse to the interests of the
party as facts otherwise available. Adverse inferences are appropriate
``to ensure that the party does not obtain a more favorable result by
failing to cooperate than if it had cooperated full.'' See Statement of
Administrative Action (``SAA)'' accompanying the URAA, H.Doc. No. 103-
316, at 870 (1994).
Section 776(b) of the Act authorizes the Department to use as
adverse facts available information derived from the petition, the
final determination from the LTFV investigation, a previous
administrative review, or any other information placed on the record.
Under section 782(c) of the Act, a respondent has a responsibility not
only to notify the Department if it is unable to provide requested
information, but also to provide a ``full explanation and suggested
alternative forms.'' On August 2, 2002, the Department transmitted its
questionnaire to Changsha via priority mail. We confirmed with the
delivery company that this transmission was received and signed for by
Changsha personnel on August 6, 2002. Changsha did not submit a
response to our questionnaire by the deadline established for such
submissions. On December 2, 2002, the Department faxed and sent a
letter by priority mail to Changsha asking whether the company had
received the August 2, 2002, questionnaire, and whether it had, in
fact, decided not to comply with our requests for information. The
Department received no responses from Changsha personnel to either the
letter or the facsimile. Therefore, we determine that the PRC entity
failed to cooperate to the best of its ability, making the use of an
adverse inference appropriate.
In this proceeding, in accordance with Department practice (See,
e.g.,
[[Page 40247]]
Rescission of Second New Shipper Review and Final Results and Partial
Rescission of First Antidumping Duty Administrative Review: Brake
Rotors From the People's Republic of China, 64 FR 61581, 61584
(November 12, 1999); Preliminary Results of Antidumping Duty
Administrative Review: Fresh Garlic From the People's Republic of
China, 64 FR 39115 (July 21, 1999); and Fresh Garlic from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 65 FR 33295 (May 23, 2000) (for a more detailed discussion, See
Preliminary Results of Antidumping Duty Administrative Review: Fresh
Garlic From the People's Republic of China, 64 FR 39115 (July 21,
1999)), as adverse facts available, we have preliminarily assigned to
the PRC entity (which includes Changsha) the PRC-wide rate of 51.74
percent, which is the PRC-wide rate established in the LTFV
investigation (See Final Determination) and the highest dumping margin
determined in any segment of this proceeding. The Department's practice
when selecting an adverse rate from among the possible sources of
information is to ensure that the margin is sufficiently adverse ``as
to effectuate the purpose of the facts available rule to induce
respondents to provide the Department with complete and accurate
information in a timely manner.'' See Final Determination of Sales at
Less Than Fair Value: Static Random Access Memory Semiconductors, From
Taiwan, 63 FR 8909, 8932, (February 23, 1998).
Section 776(c) of the Act provides that where the Department
selects from among the facts otherwise available and relies on
``secondary information,'' The Department shall, to the extent
practicable, corroborate that information from independent sources
reasonably at the Department's disposal. Secondary information is
described in the SAA as ``{i{time} nformation derived from the petition
that gave rise to the investigation or review, the final determination
concerning the subject merchandise, or any previous review under
section 751 concerning the subject merchandise.'' See SAA at 870. The
SAA states that ``corroborate'' means to determine that the information
used has probative value (id.). To corroborate secondary information,
the Department will, to the extent practicable, examine the reliability
and relevance of the information to be used. To examine the reliability
of margins in the petition, we examine whether, based on available
evidence, those margins reasonably reflect a level of dumping that may
have occurred during the period of investigation by any firm, including
those that did not provide us with usable information. This procedure
generally consists of examining, to the extent practicable, whether the
significant elements used to derive the petition margins, or the
resulting margins, are supported by independent sources. With respect
to the relevance aspect of corroboration, the Department will consider
information reasonably at its disposal as to whether there are
circumstances that would render a margin not relevant. Where
circumstances indicate that the selected margin may not be relevant,
the Department will attempt to find a more appropriate basis for facts
available. See, e.g., Final Results of Antidumping Duty Administrative
Review: Fresh Cut Flowers from Mexico, 61 FR 6812, 6814 (February 22,
1996) (where the Department disregarded the highest margin as best
information available because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin). We have determined that there is no evidence on the record
which would render the application of the petition margin
inappropriate. Therefore, we consider the petition information relevant
for this proceeding.
Furthermore, in the underlying LTFV investigation, we established
the reliability of the petition margin (See Final Determination). As
there is no information on the record of this review that demonstrates
that the petition rate is not reliable for use as the adverse facts
available rate for the PRC-wide rate, we determine that this rate has
probative value and, therefore, is an appropriate basis for the PRC-
wide rate to be applied in this review to exports of subject
merchandise by the PRC entity (which includes Changsha).
Export Price and Constructed Export Price
For certain sales made by Haisheng and Zhonglu to the United
States, we used constructed export price (``CEP'') in accordance with
section 772(b) of the Act because the first sale to an unaffiliated
purchaser occurred after importation of the merchandise into the United
States. For sales made by Ganus Tongda, Oriental, and Lakeside, and
certain sales made by Haisheng and Zhonglu, we used export price
(``EP''), in accordance with section 772(a) of the Act, because the
subject merchandise was sold to unaffiliated purchasers in the United
States prior to importation into the United States and because the CEP
methodology was not warranted by other circumstances.
We calculated EP based on the various prices to unaffiliated
purchasers, as appropriate. In accordance with section 772(c) of the
Act, we deducted from these prices, where appropriate, amounts for U.S.
freight forwarder fees, foreign inland freight, foreign brokerage and
handling, international freight, marine insurance, U.S. inland freight,
other U.S. transportation expense, U.S. customs duty (including
merchandise processing and harbor maintenance fees), and U.S.
warehousing. We valued the deductions for foreign inland freight and
brokerage and handling using surrogate data, which were based on Indian
freight costs. (We selected Poland as the surrogate country for the
reasons explained in the ``Normal Value'' section of this notice,
below. However, where we were unable to find Polish data to value other
miscellaneous factors of production, we have valued these inputs using
public information on the record for India, one of the comparable
economies identified by the Office of Policy.) When marine insurance
and ocean freight were provided by PRC-owned companies, we valued the
deductions using surrogate value data (amounts charged by market-
economy providers). However, when some or all of a specific company's
ocean freight or marine insurance was provided directly by market
economy companies and paid for in a market economy currency, we used
the reported market economy ocean freight or marine insurance values
for all U.S. sales made by that company. See 19 CFR 351.408(c)(1)
(regulation for the information used to value factors of production).
We calculated CEP based on the ex-dock (PRC), ex-dock (USA), DDP
(delivered duty paid), and delivered prices from Haisheng and
Zhongulu's U.S. subsidiaries to unaffiliated customers. In accordance
with section 772(c) of the Act, we deducted from the starting price for
CEP amounts for foreign inland freight, foreign inland insurance,
foreign brokerage and handling, international freight, marine
insurance, U.S. inland freight, other U.S. transportation expense, U.S.
customs duty (including merchandise processing and harbor maintenance
fees), U.S. Freight forwarder fee, U.S. warehousing expense, credit
expenses, commissions, direct selling expenses and indirect selling
expenses.
In accordance with section 772(d)(1) of the Act, we made further
deductions for the following selling expenses that related to economic
activity in the United States: Commissions, warranties, credit
expenses, indirect selling
[[Page 40248]]
expenses (including inventory carrying costs), and other direct selling
expenses. In accordance with section 772(d)(3) of the Act, we also
deducted from the starting price an amount for profit.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine normal value (``NV'') using a factors-of-production
methodology if: (1) The subject merchandise is exported from an NME
country, and (2) the Department finds that the available information
does not permit the calculation of NV under section 773(a) of the Act.
We have no basis to determine that the available information would
permit the calculation of NV using PRC prices or costs. Therefore, we
calculated NV based on factors data in accordance with section 773(c)
of the Act and 19 CFR 351.408(c).
Under the factors-of-production methodology, we are required to
value, to the extent possible, the NME producer's inputs in a market
economy country that is at a comparable level of economic development
and that is a significant producer of comparable merchandise. We chose
Poland as the primary surrogate, a significant producer of the
comparable merchandise, apple juice concentrate, on the basis of the
criteria set out in sections 773(c)(2)(B) and 773(c)(4) of the Act, and
in 19 CFR 351.408(b). Although Poland was not on the Office of Policy's
list of most comparable economies, we were unable to establish that
these comparable economies were significant producers of comparable
merchandise. We have applied surrogate values based on publicly
available information from Poland for the major input, juice apples, as
well as electricity, factor overhead, SG&A and profit ratios. However,
since we were unable to obtain Polish data to value the other
miscellaneous factors of production, we have valued these inputs using
public information on the record for India, one of the comparable
economies identified by the Office of Policy. Because some of the
Indian import data was not contemporaneous with the POR, unless
otherwise noted, we inflated the data to the POR using the Indian
wholesale price indices (``WPI'') published by the International
Monetary Fund. See the June 30, 2003, Memorandum to Jeff May from Susan
Kuhbach ``Surrogate Selection and Valuation--Non-Frozen Apple Juice
Concentrate from China (``Surrogate Country Memo'') for a further
discussion of our surrogate selection, which is on file in the
Department's Central Records Unit in Room B-099 of the main Department
building (``CRU'').
Pursuant to the Department's factors-of-production methodology as
provided in section 773(c) of the Act and 19 CFR 351.408(c), we valued
the respondents' reported factors of production by multiplying them by
the following values (for a complete description of the factor values
used, see the Memorandum to Susan Kuhbach: ``Factors of Production
Values Used for the Preliminary Results,'' dated June 30, 2003, which
is on file in the CRU):
Juice Apples: We have valued juice apples using prices of juice
apples in Poland, covering 33 weeks of the POR, which were provided to
the Department by the Foreign Agriculture Service (``FAS'') at the U.S.
Embassy in Warsaw, Poland. This pricing data was obtained by the FAS
from the Polish Foreign Agricultural Markets Monitoring Unit/Foundation
for Aid Programs for Agriculture and the Institute of Agricultural
Economics. The average value of these 33 prices is $34.54 per metric
ton.
Processing Agents: We valued pectinex enzyme, amylase enzyme,
bentonite, diatomite, gelatin, silica gel, and activated carbon for the
POR using the World Trade Atlas data for India which is based on data
reported by the DGCI&S of the Ministry of Commerce, which also supplies
the same data for the Monthly Statistics of the Foreign Trade of India,
Volume II: Imports (``Indian import statistics'').
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 website.
Electricity and Steam Coal: To value electricity, we used Polish
industrial electricity rate data from the Energy Prices & Taxes--
Quarterly Statistics (Third Quarter 2000) published by the
International Energy Agency. We determined that the most
contemporaneous and detailed information on the record for steam coal
could be derived from the Energy Data Directory & Yearbook (2001/2002)
published by Tata Energy Research Institute (``TERI''). The data for
the Indian domestic price of steam coal is contemporaneous with the POR
and broken out by useful heat value (``UHV''). The available Polish
steam coal data was not broken out by useful heat value.
Factory Overhead, SG&A, and Profit: We derived ratios for factory
overhead, SG&A, and profit, using the 2002 financial statement of Agros
Fortuna, a public company in Poland that produces products similar to
the subject merchandise.
Packing Materials: We calculated values for aseptic bags, plastic
liners, labels, wood bins, steel corners, steel bolts, steel bands,
steel clips, styrofoam padding, adhesive tape, nails, and cardboard
boxes using the World Trade Atlas data for India for the POR. We
converted values from a per kilogram to a per piece basis, where
necessary.
For steel drums, we could not find a reliable current Indian value.
Therefore, we used a 1994 Indonesian price and inflated it using the
Indonesian WPI.
Inland Freight Rates: To value truck freight rates, we used an
April 2002 article from the Iron and Steel Newsletter, which quotes
information derived from the website, www.infreight.com. With regard to
rail freight, we based our calculation on posted rail rates from the
Indian Railways at www.indianrailways.gov.in. We calculated an average
per kilometer per metric ton rate.
International Freight: We used rates collected from the Descartes
online system. Where an individual PRC producer-exporter used a market-
economy shipper and paid for the shipping in a market-economy currency,
and could provide the complete documentation of the transaction, we
calculated an average price for shipping paid by that producer/
exporter.
Marine Insurance: We were unable to find a marine insurance rate
from an Indian supplier of marine insurance. Furthermore, there is no
other information on the record valuing marine insurance from another
surrogate country. Therefore, we have used a POR price quote from a
U.S. insurance provider, as we have in past PRC cases. See also 14th
Administrative Review of Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, From the People's Republic of China, Memo to
Susan Kuhbach, ``Factors of Production Values used for the Preliminary
Results,'' July 1, 2002. (This was consistent with the Court of
International Trade's decision that the Department must ``determine
marine insurance in a manner reasonably related to the value and risks
of transporting TRBs.'' See Peer Bearing Company v. U.S., 12 F Supp. 2D
445 (CIT 1998)).
Brokerage and Handling: The brokerage and handling amount used in
our calculations was derived from an amount charged in Indian Rupees by
an Indian shipping company. This figure was taken from the public
version of a U.S. sales listing reported in the questionnaire response
submitted by Meltroll Engineering, for Stainless Steel
[[Page 40249]]
Bar from India; Final Results of Antidumping Duty Administrative Review
and New Shipper Review and Partial Rescission of Administrative Review,
65 FR 48965 (August 10, 2000) (Placed on the record of this proceeding
June 30, 2003, as an attachment to the Memorandum to Susan Kuhbach,
``Factors of Production Values Used in the Preliminary Results.''
Because this information is not contemporaneous with the POR, we
adjusted the data to the POR by using the Indian WPI.
By-products: Certain respondents reported by-products resulting
from production of the subject merchandise. For those respondents that
reported their production of apple essence/aroma and/or apple pomace,
we have made a deduction for the production of by-products generated
during production of AJC. Because we were unable to find reliable
Indian values for apple essence or apple pomace, and we are still in
the process of looking for a Polish price, we used U.S. prices as the
surrogate values because they are the only values on the record of this
proceeding. We will continue to look for an appropriate surrogate for
purposes of the final results. The value for apple essence/aroma was
calculated as a simple average of the various prices reported at the
July 1999 ITC hearing and 1999 price quotes provided to the Department
by two U.S. brokers of food products. Apple pomace was valued using an
April 2000 study published by the University of Georgia. Preliminary
Results of the Review.
We preliminarily determine that the following dumping margins exist
for the period June 1, 2001, through May 31, 2002:
Second Administrative Review
------------------------------------------------------------------------
Weighted-
average
Exporter/Producer margin
percentage
------------------------------------------------------------------------
Shaanxi Haisheng Fresh Fruit Juice Co., Ltd................ 0.00
Shandong Zhonglu Juice Group Co., Ltd...................... 0.00
Yantai Oriental Juice Co., Ltd............................. 0.00
Sanmenxia Lakeside Fruit Juice Co., Ltd.................... 0.00
PRC-wide rate (including Changsha Industrial Products & 51.74
Minerals Import and Export Co., Ltd.).....................
------------------------------------------------------------------------
New Shipper Review
------------------------------------------------------------------------
Weighted-
average
Exporter Producer margin
percentage
------------------------------------------------------------------------
Gansu Tongda Fruit Juice and Gansu Tongda Fruit 0.00
Beverage Company. Juice and Beverage
Company.
------------------------------------------------------------------------
Public Comment
Pursuant to 19 CFR 351.310(c), any interested party may request a
hearing within 30 days of the date of publication of this notice. Any
hearing, if requested, will be held approximately 42 days after the
publication of this notice, or the first workday thereafter. Issues
raised in hearings will be limited to those raised in the case and
rebuttal briefs. Pursuant to 19 CFR 351.309(c), interested parties may
submit case briefs within 30 days of the date of publication of this
notice. Furthermore, as discussed in 19 CFR 351.309(d)(2), rebuttal
briefs, which must be limited to issues raised in the case briefs, may
be filed not later than 35 days after the date of publication of this
notice. Parties who submit case briefs or rebuttal briefs in this
review are requested to submit with each argument (1) a statement of
the issue and (2) a brief summary of the argument with an electronic
version included.
The Department will publish the final results of this
administrative review, including the results of its analysis of issuers
raised in any such written briefs or hearing, within 120 days of
publication of these preliminary results, pursuant to section
751(a)(3)(A) of the Act.
Assessment Rates
Pursuant to 19 CFR 351.212(b), the Department calculates an
assessment rate for each importer of the subject merchandise. Upon
issuance of the final results of this administrative review, if any
importer-specific assessment rates calculated in the final results are
above de minimis (i.e., at or above 0.5 percent), the Department will
issue appraisement instructions directly to the U.S. Bureau of Customs
and Border Protection to assess antidumpting duties on appropriate
entries by applying the assessment rate to the entered value of the
merchandise. For assessment purposes, we calculate importer-specific
assessment rates for the subject merchandise by aggregating the dumping
duties due for all U.S. sales to each importer and dividing the amount
by the total entered value of the sales to that importer.
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) for the PRC companies
named above, the cash deposit rates for exporters to the United States
by these companies will be the rates for these firms shown above,
except that, for exporters with de minimis rates i.e., less than 0.50
percent, no deposit will be required; (2) for North Andre, which was
excluded from the antidumping duty order, no deposit is required; (3)
for exporters previously found to be entitled to a separate rate in a
prior segment of the proceedings, and for which no review has been
requested, the cash deposit rate will continue to be the rate
established for that exporter in the most recent segment of the
proceeding; (4) for all other PRC exporters (including Changsha), the
cash deposit rate will be 51.74 percent, the PRC country-wide ad-
valorem rate; and (5) for all other 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 shall remain in effect until
publication of the final results of the next administrative review.
Cash Deposit Requirements for New Shipper Review
Bonding will no longer be permitted to fulfill security
requirements for shipments from Gansu Tongda of AJC from the PRC
entered, or withdrawn from warehouse, for consumption on or after the
publication date of the final results of the new shipper review.
Furthermore, the following cash deposit requirements will be effective
upon publication of the final results of the new shipper review for all
shipments from Gansu Tongda of subject merchandise entered, or
withdrawn from warehouse, for consumption on or after the publication
date: (1) for subject merchandise manufactured and exported by Gansu
Tongda, we will require a cash deposit at the rate established in the
final results; and (2) for subject merchandise exported by Gansu Tongda
but not manufactured by it, the cash deposit will be the PRC
countrywide rate (i.e., 51.74 percent).
[[Page 40250]]
Notification to Importers
This notice also serves as a preliminary 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 double antidumping duties.
We are issuing and publishing these results in accordance with
sections 751(a)(1), 751(a)(2)(B), and 777(i)(1) of the Act and 19 CFR
351.221(b).
Dated: June 20, 2003.
Joseph A. Spetrini,
Acting Assistant Secretary for Importer Administration.
[FR Doc. 03-17065 Filed 7-3-03; 8:45 am]