Notice of Final Determination of Sales at Less Than Fair Value: Citric Acid and Certain Citrate Salts from Canada, 16843-16845 [E9-8357]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 74, Number 69 (Monday, April 13, 2009)]
[Notices]
[Pages 16843-16845]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-8357]



[[Page 16843]]

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DEPARTMENT OF COMMERCE

International Trade Administration

A-122-853


Notice of Final Determination of Sales at Less Than Fair Value: 
Citric Acid and Certain Citrate Salts from Canada

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: We determine that imports of citric acid and certain citrate 
salts (citric acid) are being, or are likely to be, sold in the United 
States at less than fair value (LTFV), as provided in section 735 of 
the Tariff Act of 1930, as amended (the Act). The estimated margins of 
sales at LTFV are shown in the ``Final Determination Margins'' section 
of this notice.

EFFECTIVE DATE: April 13, 2009.

FOR FURTHER INFORMATION CONTACT:  Terre Keaton Stefanova or Rebecca 
Trainor, AD/CVD Operations, Office 2, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230; telephone: 
(202) 482-1280 or (202) 482-4007, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On November 20, 2008, the Department of Commerce (Department) 
published in the Federal Register the preliminary determination of 
sales at LTFV in the antidumping duty investigation of citric acid from 
Canada. See Citric Acid and Certain Citrate Salts from Canada: Notice 
of Preliminary Determination of Sales at Less Than Fair Value and 
Postponement of Final Determination, 73 FR 70324 (November 20, 2008) 
(Preliminary Determination).
    In November and December 2008, the respondent, Jungbunzlauer 
Technology GMBH & Co KG (JBLT), submitted revised home market and U.S. 
sales listings and cost data. On December 1, 2008, we received pre-
verification comments from the petitioners.\1\ On December 18, 2008, 
the petitioners requested a hearing to discuss issues addressed by the 
interested parties in their case and rebuttal briefs. From December 9 
through December 16, 2008, we verified the respondent's sales data.
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    \1\ The petitioners in this investigation are Archer Daniels 
Midland Company, Cargill, Incorporated, and Tate & Lyle Americas, 
Inc.
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    On January 6, 2009, the respondent informed the Department that its 
Canadian operations had recently undergone a corporate restructuring 
which resulted in JBL Canada, Inc. becoming the producer, seller and 
exporter of citric acid from Canada, effective December 31, 2008. For 
further discussion, see ``Corporate Restructuring'' section below.
    From January 12 through January 16, 2009, we verified the 
respondent's cost data. On February 5, 2009, we issued the sales 
verification report,\2\ and requested that the respondent submit a 
revised home market and U.S. sales listing per verification findings. 
We received the revised sales listings on February 17, 2009. On 
February 24, 2009, we issued the cost verification report.\3\ We 
provided the interested parties an opportunity to comment on the 
Preliminary Determination and the Department's verification findings.
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    \2\ See Memorandum to the File through James Maeder, Director 
Office 2 from Rebecca Trainor and Kate Johnson International Trade 
Compliance Analysts Office 2, ``Verification of the Sales Response 
of Jungbunzlauer Technology GMBH & Co. KG (JBLT) in the Antidumping 
Investigation of Citric Acid and Certain Citrate Salts from 
Canada,'' dated February 5, 2009 (Sales Verification Report).
    \3\ See Memorandum to the File through Neal M. Harper, Director 
of Office of Accounting from James Balog Senior Accountant, Office 
of Accounting, ``Verification of the Cost Response of Jungbunzlauer 
Technology GMBH & Co. KG in the Antidumping Investigation of Citric 
Acid and Certain Citrate Salts from Canada,'' dated February 24, 
2009 (Cost Verification Report).
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    On February 26, 2009, the petitioners withdrew their request for a 
hearing. On March 3 and March 9, 2009, respectively, the petitioners 
and respondent each submitted case and rebuttal briefs. Because the 
petitioners were the only interested party to request a hearing and it 
subsequently withdrew its request, no hearing was held on issues raised 
in the case and rebuttal briefs.

Period of Investigation

    The period of investigation (POI) is April 1, 2007, through March 
31, 2008. This period corresponds to the four most recent fiscal 
quarters prior to the month of the filing of the petition.

Scope of 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.

Corporate Restructuring

    The respondent reported, and the Department verified, that during 
the POI, three subsidiaries of the Jungbunzlauer Group (JBL Group) were 
involved in the production and sale of citric acid to the United 
States. The production of citric acid in Canada involved two separate 
legal entities, JBLT and JBL Canada, Inc. JBLT was responsible for 
citric acid production and JBL Canada Inc. was responsible for 
infrastructure and personnel in connection with JBLT's operations. The 
third entity, JBL Inc., located in the United States was responsible 
for selling products from the JBL Group (including JBLT) to the United 
States, Canada and Mexico.
    As noted above, during the course of this investigation JBLT 
informed the Department that it had undergone a corporate 
restructuring. We requested that JBLT submit a detailed explanation and 
supporting documentation of the corporate restructuring. We also 
provided the petitioners the opportunity to file comments. See January 
23, 2009 Memorandum to the File, and the

[[Page 16844]]

January 9 and 14, 2009, submissions from JBLT. We did not receive 
comments from the petitioners on this matter. At verification we 
examined the corporate restructuring information submitted by JBLT (see 
Cost Verification Report at 4).
    Based on the corporate restructuring documentation, as verified, 
JBL Canada Inc., rather than JBLT, is the entity responsible for all 
the activities related to Canadian citric acid production and 
exportation, effective December 31, 2008. Therefore, we will assign the 
final determination margin to JBL Canada, Inc.

Verification

    As provided in section 782(i) of the Act, we verified the sales and 
cost information submitted by the respondent for use in our final 
determination. We used standard verification procedures including an 
examination of relevant accounting and production records, and original 
source documents provided by the respondent. Our sales and cost 
verification results are outlined in separate verification reports. See 
Sales Verification Report and Cost Verification Report. The 
verification reports are on file and available in the Central Records 
Unit, Room 1117 of the Commerce Department.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by the 
parties to this investigation are addressed in the ``Issues and 
Decision Memorandum for the Final Determination in the Less-Than-Fair-
Value Investigation of Citric Acid and Certain Citrate Salts from 
Canada'' from John Anderson, Acting Deputy Assistant Secretary for 
Import Administration, to Ronald K. Lorentzen, Acting Assistant 
Secretary for Import Administration (Decision Memo), dated April 6, 
2009, which is hereby adopted by this notice. A list of the issues that 
parties have raised and to which we have responded, all of which are in 
the Decision Memo, is attached to this notice as an appendix. Parties 
can find a complete discussion of all issues raised in this 
investigation and the corresponding recommendations in the Decision 
Memo, which is on file in the Central Records Unit, Room 1117 of the 
Commerce Department. In addition, a complete version of the Decision 
Memo can be accessed directly on the Web at https://ia.ita.doc.gov/frn. 
The paper copy and electronic version of the Decision Memo are 
identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of the comments received and our findings at 
verification, we have made certain changes to the margin calculations 
for JBL Canada Inc. For a discussion of these changes, see the ``Margin 
Calculations'' section of the Decision Memo.

Facts Available

    Section 776(a) of the Act provides that the Department will apply 
``facts otherwise available'' if necessary information is not available 
on the record or an interested party: 1) withholds information that has 
been requested by the Department; 2) fails to provide such information 
within the deadlines established, or in the form or manner requested by 
the Department, subject to subsections (c)(1) and (e) of section 782 of 
the Act; 3) significantly impedes a proceeding; or 4) provides such 
information, but the information cannot be verified. As stated in the 
Preliminary Determination, our antidumping questionnaire instructs 
respondents to report prices and expenses in the currency in which they 
were incurred. See Preliminary Determination at 73 FR 70327. 
Nevertheless, in this case, the respondent reported data that had been 
converted from multiple currencies into Canadian dollars (CAD) in the 
home market, and into U.S. dollars (USD) in the U.S. market because its 
company-wide electronic data processing system (SAP) automatically 
converts all foreign currency transactions into the currency of the 
respective JBL Group entity at the moment of posting. According to the 
respondent, the entry of data and the currency conversion is a 
simultaneous process in its accounting system. As a result, SAP does 
not retain the original foreign currency amount in the sales database 
or in the general ledger.\4\ Based on the respondent's representation 
that the currency conversion process is a company-wide procedure that 
is done in the normal course of business, we accepted the data as 
reported for the preliminary determination. However, we stated our 
intention to examine the reasonableness of the price and expense 
reporting based on this system at verification. See Preliminary 
Determination at 73 FR 70327.
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    \4\ See JBLT's October 9, 2008, Response to Supplemental 
Questions Regarding Currency Conversions and Date of Sale at 3; and 
JBLT's October 14, 2008, First Supplemental Questionnaire Response 
at 5-6.
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    At verification, we found that the SAP system does maintain a 
record of the original currency from which entries were converted and 
the exchange rate used. Therefore, the price and expense data could 
have been reported in the original foreign currency amount as incurred. 
See Sales Verification Report at 4 and 5. Based on our verification 
findings, we believe that it was possible for the respondent to have 
reported prices and expenses in the currency in which they were 
incurred, contrary to the representation in the respondent's 
questionnaire responses. For these reasons, we find that it is 
appropriate to resort to facts otherwise available to account for the 
unreported information. See, e.g., Canned Pineapple Fruit from 
Thailand, 68 FR 65247 (November 19, 2003), and accompanying Issues and 
Decision Memorandum at Comment 20b where the Department applied facts 
otherwise available to a respondent that did not provide requested 
information. Therefore, we have determined that the gross unit prices 
for certain home market customers who were invoiced in USD during the 
POI (see the Sales Verification Report at Exhibit 4), and all U.S 
inland freight expenses should be based on facts available in 
accordance with sections 776(a)(2)(A),(B), and (D) of the Act.\5\
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    \5\ Because we could not isolate the U.S. inland freight 
expenses that were affected by the inappropriate currency 
conversions, we are applying facts available to all reported U.S. 
inland freight expenses.
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    In selecting from among the facts otherwise available, section 
776(b) of the Act authorizes the Department to use an adverse inference 
if the Department finds that an interested party failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information. See, e.g., Notice of Final Results of Antidumping Duty 
Administrative Review: Stainless Steel Bar from India, 70 FR 54023, 
54025-26 (September 13, 2005); see also Notice of Final Determination 
of Sales at Less Than Fair Value and Final Negative Critical 
Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 
FR 55792, 55794-96 (August 30, 2002). The Statement of Administrative 
Action provides guidance by explaining that 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 fully.'' See 
Statement of Administrative Action accompanying the Uruguay Round 
Agreements Act, H.R. Doc. No. 103-316, Vol. 1, at 870 (1994). 
Furthermore, ``affirmative evidence of bad faith on the part of a 
respondent is not required before the Department may make an

[[Page 16845]]

adverse inference.'' See Antidumping Duties; Countervailing Duties, 62 
FR 27296, 27340 (May 19, 1997); see also Nippon Steel Corp. v. United 
States, 337 F.3d 1373, 1383 (Fed. Cir. 2003) (Nippon). Because: 1) the 
respondent had the necessary information within its control and it did 
not report this information; and 2) it failed to put forth its maximum 
effort to provide the requested information, we find that the 
respondent failed to cooperate to the best of its ability. Therefore, 
for the final determination, we are using facts available with an 
adverse inference and applying it to the gross unit prices of certain 
home market sales, and to all U.S. inland freight expenses. 
Specifically, as adverse facts available, we increased both the 
affected home market sales prices and the U.S. freight expenses by 1.16 
percent, i.e., the percentage difference between the Department's 
weighted-average POI exchange rate (used to convert comparison-market 
values to USD in the margin program), and JBLT's POI average exchange 
rate (used by JBLT's SAP system for currency conversion purposes). For 
further discussion, see Decision Memo at Comment 4 and the April 6, 
2009, Memorandum to The File from Case Analyst, entitled ``Calculations 
Performed for Jungbunzlauer Technology GMBH & Co. KG for the Final 
Determination in the Antidumping Duty Investigation of Citric Acid and 
Certain Citrate Salts from Canada.''

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing U.S. Customs and Border Protection (CBP) to continue to 
suspend liquidation of all imports of subject merchandise that are 
entered or withdrawn from warehouse, for consumption on or after 
November 20, 2008, the date of publication of the preliminary 
determination in the Federal Register. We will instruct CBP to continue 
to require a cash deposit or the posting of a bond for all companies 
based on the estimated weighted-average dumping margins shown below. 
The suspension of liquidation instructions will remain in effect until 
further notice.

Final Determination Margins

    We determine that the following weighted-average dumping margins 
exist for the period April 1, 2007, through March 31, 2008:

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                                                       Weighted Average
                Manufacturer/Exporter                  Margin (percent)
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JBL Canada, Inc.....................................               23.21
All Others..........................................               23.21
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All-Others Rate

    Section 735(c)(5)(A) of the Act provides that the estimated ``All-
Others'' rate shall be an amount equal to the weighted average of the 
estimated weighted-average dumping margins established for exporters 
and producers individually investigated, excluding any zero or de 
minimis margins, and any margins determined entirely under section 776 
of the Act. In this investigation the Department calculated a company-
specific rate only for JBL Canada Inc. Therefore, for purposes of 
determining the all-others rate and pursuant to section 735(c)(5)(A) of 
the Act, we are using the weighted-average dumping margin calculated 
for JBL Canada, Inc., as referenced above. See, e.g., Notice of Final 
Determination of Sales at Less Than Fair Value: Stainless Steel Sheet 
and Strip in Coils From Italy, 64 FR 30750, 30755 (June 8, 1999); and 
Coated Free Sheet Paper from Indonesia: Notice of Preliminary 
Determination of Sales at Less Than Fair Value and Postponement of 
Final Determination,, 72 FR 30753, 30757 (June 4, 2007), unchanged in 
final determination, Notice of Final Determination of Sales at Less 
Than Fair Value: Coated Free Sheet Paper from Indonesia, 72 FR 60636 
(October 25, 2007).

Disclosure

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

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our final determination. As our 
final determination is affirmative, the ITC will determine within 45 
days whether imports of the subject merchandise are causing material 
injury, or threat of material injury, to an industry in the United 
States. If the ITC determines that material injury or threat of injury 
does not exist, the proceeding will be terminated and all securities 
posted will be refunded or canceled. If the ITC determines that such 
injury does exist, the Department will issue an antidumping duty order 
directing CBP to assess antidumping duties on all imports of the 
subject merchandise entered, or withdrawn from warehouse, for 
consumption on or after the effective date of the suspension of 
liquidation.

Return or Destruction of Proprietary Information

    This notice will serve as the only reminder to parties subject to 
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 return/destruction of APO materials or conversion to 
judicial protective order is hereby requested. Failure to comply with 
the regulations and the terms of an APO is a sanctionable violation.
    We are issuing and publishing this determination and notice in 
accordance with sections 735(d) and 777(i) of the Act.

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

Appendix--Issues in Decision Memo

Comments

Comment 1: Date of Sale and Whether to Exclude U.S. Sales Made Pursuant 
to Multiyear Contracts
Comment 2: Indirect Selling Expenses
Comment 3: Home Market Billing Adjustments
Comment 4: Currency Conversions Reported for Certain Home Market Sales 
Prices and U.S. Freight Expenses
Comment 5: Electricity Purchased from an Affiliate
Comment 6: General and Administrative (G&A) Expense Ratio
[FR Doc. E9-8357 Filed 4-10-09; 8:45 am]
BILLING CODE: 3510-DS-S