E9-15454. 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: [phone].

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 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”).

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 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
Exporter	Weighted-average margin (percent)
Itochu Corporation	0.00

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 rebuts, clarifies, or corrects information recently placed on the record.^[2]

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.

Footnotes

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”).

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.