[Federal Register Volume 73, Number 46 (Friday, March 7, 2008)]
[Notices]
[Pages 12378-12382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4529]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-570-806
Silicon Metal From the People's Republic of China: Preliminary
Results and Preliminary Partial Rescission of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: March 7, 2008.
SUMMARY: The Department of Commerce (``Department'') is currently
conducting the 2006/2007 administrative review of the antidumping duty
order on silicon metal from the People's Republic of China (``PRC'').
The period of review (``POR'') for this administrative review is June
1, 2006, through May 31, 2007. Fifteen companies reported that they had
no shipments of subject merchandise during the POR; therefore, we are
preliminarily rescinding our review of these companies. We
preliminarily determine that three companies, Hunan Provincial Import &
Export Group Co (PRC) (``Hunan Provincial''), Gather Hope Int'l Co.,
Ltd. (``Gather Hope''), and Alloychem Impex Corp. (``Alloychem''), have
failed to cooperate by not acting to the best of their ability to
cooperate with the Department's requests for information and, as a
result, should be assigned a rate based on adverse facts available
(``AFA''). If these preliminary results are adopted in our final
results of these reviews, 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.
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.
FOR FURTHER INFORMATION CONTACT: Scot Fullerton or Michael Quigley, 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-
1386 and (202) 482-4047, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 1, 2007, the Department published a notice of opportunity
to request an administrative review of the antidumping duty order on
silicon
[[Page 12379]]
metal from the PRC for the POR June 1, 2006, through May 31, 2007. See
Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity to Request Administrative Review, 72 FR
61859 (June 1, 2007). On July 2, 2007, Globe Metallurgical Inc.
(``Petitioner''), requested that the Department conduct an
administrative review of 18 companies (collectively ``Respondents'').
On August 6, 2007, the Department published a notice of initiation of
an antidumping duty administrative review on silicon metal from the
PRC, in which it initiated a review of these Respondents. See Notice of
Initiation of the Administrative Review of the Antidumping Duty Order
on Silicon Metal from the People's Republic of China (``Initiation
Notice''), 72 FR 43597, (August 6, 2007).
On August 24, 2007, the Department sent quantity and value
(``Q&V'') questionnaires to the Respondents listed in the Initiation
Notice. The Department sent a second round of Q&V questionnaires to
companies that did not respond to the first round on September 17,
2007. On October 22, 2007, the Department sent three additional Q&V
questionnaires to companies which had not responded.
In response to the Q&V questionnaires that the Department sent on
August 24, 2007, the following seven companies replied that they had no
shipments of subject merchandise to the United States during the POR:
Jiangxi Gangyuan Silicon Industry (``Gangyuan''); MPM Silicones, LLC
(``MPM United States''); GE Silicones Canada (``MPM Canada''); Global
Minerals Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; and
Carbonsi Mettalurgical Inc. In response to the Q&V questionnaires that
the Department sent on September 17, 2007, the following three
companies replied that they had no shipments of subject merchandise
under review to the United States during the POR: Crown All
Corporation; Ferro-Alliages & Mineraux Inc.; and Chemical & Alloy Inc.
In response to the Q&V questionnaires that the Department sent on
October 22, 2007, the following two companies replied that they had no
shipments of subject merchandise under review to the United States
during the POR: IMMECC Resources Inc. and Bomet (Canada) Inc.
In addition to the 12 companies listed above which provided the
Department with no-shipment responses, the Department was unable to
find correct addresses for these three companies: Coldstone Metals Inc.
(``Coldstone''); Global Minerals (Canada); and SeaView Trading. The
Department's August 24, 2007, Q&V questionnaire to SeaView Trading was
returned to the Department, and its August 24, 2007, Q&V questionnaire
to Global Minerals Canada was ``undeliverable'' due to an ``incorrect
address.'' The Department's August 24, 2007, Q&V questionnaire to
Coldstone was delivered, but its September 17, 2007, Q&V questionnaire
was ``undeliverable.'' Federal Express informed the Department that
Coldstone had moved.
For three other companies, the Department sent its Q&V
questionnaire twice, received confirmation of their delivery, but
received no response from the companies. Both Hunan Provincial and
Gather Hope received the Q&V questionnaires the Department sent on
August 24, 2007, and September 17, 2007. As for Alloychem, the August
24, 2007, Q&V questionnaire was returned to the Department, but the
Department sent this company the Q&V questionnaire again on both
September 5, 2007, and October 22, 2007, and both of those mailings
were successfully delivered.
On October 3, 2007, Petitioner requested that the Department
clarify discrepancies between the testimony of MPM United States and
MPM Canada (collectively, ``MPM'') to the Foreign Trade Zone Board and
documentation on the record of the 2005/2006 New Shipper Review of
Gangyuan. On October 31, 2007, Petitioner also requested that the
Department issue additional questions to MPM related to the possible
transshipment of silicon metal. Similarly, on November 13, 2007,
Petitioner submitted comments on the Q&V responses submitted by Ferro-
Alliages, Chemical and Alloy Inc., and Crown All Corporation, and
requested that the Department request additional information from
Ferro-Alliages regarding the source of the silicon metal that it
exported to the United States and the ultimate disposition of the
silicon metal that it imported into Canada from China.
On November 27, 2007, the Department reviewed the requests made by
Petitioner. The Department noted that Gangyuan, MPM United States, and
MPM Canada have each filed no-shipment responses in this review, and
this information has not been contradicted by CBP data for imports of
subject merchandise during the POR. See Memorandum to David M. Spooner,
Assistant Secretary for Import Administration, from Stephen J. Claeys,
Deputy Assistant Secretary for Import Administration, regarding ``2006/
2007 Antidumping Duty Administrative Review of Silicon Metal from the
People's Republic of China: Responses to Quantity and Value
Questionnaire,'' dated November 27, 2007. On February 20, 2008,
Petitioner repeated its November 13, 2007, request that the Department
obtain additional information from Ferro-Alliages regarding the source
of the silicon metal that it exported to the United States. In
addition, Petitioner withdrew its request for review of Bomet (Canada)
Inc., Carbonsi Metallurgical Inc., Chemical and Alloy Inc., Crown All
Corp., Global Minerals (Canada), Global Minerals Corp., IMMECC
Resources Inc., Lorbec Metals Ltd., SeaView Trading, and Transtrading
House Ltd. Petitioner noted that although its withdrawal request was
beyond the 90 days after the date of publication of the notice of
initiation, the Department has discretion to extend this time limit if
it decides that it is reasonable to do so.
Scope of the Order
The product covered by the order is silicon metal containing at
least 96.00 but less than 99.99 percent of silicon by weight, and
silicon metal with a higher aluminum content containing between 89 and
96 percent silicon by weight. The subject merchandise is currently
classifiable under item numbers 2804.69.10 and 2804.69.50 of the
Harmonized Tariff Schedule of the United States (``HTSUS'') as a
chemical product, but is commonly referred to as a metal.
Semiconductor-grade silicon (silicon metal containing by weight not
less than 99.99 percent of silicon and provided for in subheading
2804.61.00 of the HTSUS) is not subject to this order. This order is
not limited to silicon metal used only as an alloy agent or in the
chemical industry. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the
merchandise is dispositive.
Preliminary Partial Rescission of 2006/2007 Administrative Review
Several companies indicated they did not export silicon metal to
the United States during the POR. In order to corroborate these
submissions, we reviewed PRC silicon metal shipment data maintained by
CBP, and found no discrepancies with the statements made by these
firms.
Therefore, for the reasons mentioned above, we are preliminarily
rescinding the administrative review with respect to these twelve
companies: Gangyuan; MPM United States; MPM Canada; Global Minerals
Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; Carbonsi
Mettalurgical Inc.; Crown All Corporation; Ferro-Alliages & Mineraux
Inc.; Chemical & Alloy Inc.; IMMECC
[[Page 12380]]
Resources Inc.; and Bomet (Canada) Inc. Each of these twelve companies
reported having made no shipments of subject merchandise during the
POR, and the Department found no information to indicate otherwise.
With respect to Petitioner's February 20, 2008, withdrawal request for
certain companies, as discussed above, we do not find any reasonable
basis exists upon which to extend the time limit for withdrawal
requests in this review.
The Department also indicated that it was unable to directly serve
three companies with its Q&V questionnaire. See Memorandum to the File
from Kristina Horgan, Senior International Trade Analyst, AD/CVD
Operations, Office 9, regarding ``Antidumping Duty Administrative
Review of Silicon Metal from the People's Republic of China: Proof of
Non-Delivery to Global Minerals (Canada) and SeaView Trading,'' dated
November 9, 2007. See also Memorandum to the File from Michael Quigley,
International Trade Analyst, AD/CVD Operations, Office 9, regarding
``Antidumping Duty Administrative Review of Silicon Metal from the
People's Republic of China: Record of Mailings to Coldstone Metals
Inc.,'' dated November 20, 2007. Therefore, the Department
preliminarily rescinds the review with respect to these companies, in
accordance with our practice. See, e.g., Certain Steel Concrete
Reinforcing Bars from Turkey: Preliminary results and Partial
Rescission of Antidumping Duty Administrative Review, 71 FR 26455,
26457 (May 5, 2006).
Facts Available
For the reasons outlined below, we have applied total AFA to Hunan
Provincial, Gather Hope, and Alloychem. Section 776(a)(2) of the Tariff
Act of 1930, as amended (``Act'') provides that, if an interested
party: (A) withholds information that has been requested by the
Department; (B) fails to provide such information in a timely manner or
in the form or manner requested subject to sections 782(c)(1) and (e)
of the Act; (C) significantly impedes a proceeding under the
antidumping statute; or (D) provides such information but the
information cannot be verified, the Department shall, subject to
section 782(d) of the Act, use facts otherwise available in reaching
the applicable determination. Section 782(d) of the Act provides that
when the Department finds that a respondent has not complied with a
request for information, the Department shall inform the respondent of
the deficiency and allow them an opportunity to remedy or explain the
deficiency.
We find that Hunan Provincial, Gather Hope, and Alloychem have
failed to provide information requested by the Department. Accordingly,
we find it appropriate to apply facts otherwise available consistent
with section 776(a)(2)(A).
In addition, pursuant to section 776(b) of the Act, 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
fully.'' See Statement of Administrative Action (``SAA'') accompanying
the Uruguay Round Agreements Act (``URAA''), H.R. Rep. No. 103-316,
Vol. 1 (1994) at 870.
The Department sent the Q&V questionnaire to Hunan Provincial,
Gather Hope, and Alloychem twice. Evidence on the record confirms that
the questionnaire was delivered to each of these parties on both
occasions. Hunan Provincial, Gather Hope, and Alloychem, however, made
no attempt to respond to the questionnaire. By not responding to the
Department's Q&V questionnaire, Hunan Provincial, Gather Hope, and
Alloychem failed to provide critical information to be used for the
Department's respondent selection process. Under these circumstances,
the Department finds that Hunan Provincial, Gather Hope, and Alloychem
have failed to cooperate to the best of their ability. Accordingly, the
Department finds it necessary, pursuant to section 776(b) of the Act,
to use AFA as the basis for these preliminary results of review for
Hunan Provincial, Gather Hope, and Alloychem.
In addition, because the above-referenced companies did not submit
a separate rate application or certification, the Department was unable
to determine whether or not they qualified for a separate rate.
Therefore, they are not eligible to receive a separate rate and will be
part of the PRC-wide entity, subject to the PRC-wide rate.
Selection of AFA Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from (1) the petition, (2) a final determination in
the less-than-fair-value (``LTFV'') investigation, (3) any previous
review or determination, or (4) any information placed on the record.
In reviews, the Department normally selects, as AFA, the highest rate
on the record of any segment of the proceeding. See, e.g., Freshwater
Crawfish Tail Meat from the People's Republic of China: Notice of Final
Results of Antidumping Duty Administrative Review, 68 FR 19504, 19506
(April 21, 2003). The Court of International Trade (``CIT'') and the
Court of Appeals for the Federal Circuit have upheld the Department's
practice in this regard. See Rhone Poulenc, Inc. v. United States, 899
F.2d 1185, 1190 (Fed. Cir. 1990) (``Rhone Poulenc''); NSK Ltd. v.
United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55
percent total AFA rate, the highest available dumping margin from a
different respondent in the LTFV investigation), aff'd, 481 F.3d 1355
(Fed. Cir. 2007); see also Shanghai Taoen International Trading Co.,
Ltd. v. United States, 360 F. Supp 2d 1339, 1348 (CIT 2005) (upholding
a 223.01 percent total AFA rate, the highest available dumping margin
from a different respondent in a previous administrative review); and
Kompass Food Trading Int'l v. United States, 24 CIT 678, 689 (2000)
(upholding a 51.16 percent total AFA rate, the highest available
dumping margin from a different, fully cooperative respondent).
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 role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Static
Random Access Memory Semiconductors from Taiwan; Final Determination of
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998).
The Department's practice also ensures ``that the party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.'' See SAA at 870; see also Final Determination of
Sales at Less than Fair Value: Certain Frozen and Canned Warmwater
Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004); D&L Supply
Co. v. United States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In
choosing the appropriate balance between providing respondents with an
incentive to respond accurately and imposing a rate that is reasonably
related to the respondent's prior commercial activity, selecting the
highest prior margin ``reflects a common sense inference that the
highest prior margin is the most probative evidence of current margins,
because, if it were not so, the importer, knowing of the rule,
[[Page 12381]]
would have produced current information showing the margin to be
less.'' Rhone Poulenc, 899 F.2d at 1190. Consistent with the statute,
court precedent, and its normal practice, the Department has assigned
the rate of 139.49 percent, the highest rate on the record of any
segment of the proceeding, to the PRC-wide entity, which includes Hunan
Provincial, Gather Hope, and Alloychem, as AFA. See, e.g., Notice of
Final Results of Antidumping Duty Administrative Review: Silicon Metal
from the People's Republic of China, 68 FR 35383 (June 13, 2003)
(``2001/2002 Silicon Metal Final Results''). As discussed further
below, this rate has been corroborated.
Corroboration of Facts Available
Section 776(c) of the Act requires that the Department corroborate,
to the extent practicable, a figure which it applies as facts
available. To be considered corroborated, information must be found to
be both reliable and relevant. We are applying as AFA the highest rate
from any segment of this administrative proceeding, which is the rate
currently applicable to all exporters subject to the PRC-wide rate. The
AFA rate in the current review (i.e., the PRC-wide rate of 139.49
percent) represents the highest rate from the petition in the LTFV
investigation. See Antidumping Duty Order: Silicon Metal From the
People's Republic of China, 56 FR 26649 (June 10, 1991).
To be considered corroborated, information must be found to be both
reliable and relevant. Unlike other types of information, such as input
costs or selling expenses, there are no independent sources for
calculated dumping margins. The only sources for calculated margins are
administrative determinations. The information upon which the AFA rate
we are applying for the current review was corroborated most recently
in the 2001/2002 administrative review of silicon metal from the PRC.
See Silicon Metal from the People's Republic of China: Notice of
Preliminary Results of Antidumping Duty Administrative Review, 68 FR
11369 (March 10, 2003), unchanged in 2001/2002 Silicon Metal Final
Results. Furthermore, no information has been presented in the current
review that calls into question the reliability of this information.
Thus, the Department finds that the information is reliable.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. For example, in Fresh Cut Flowers from Mexico;
Final Results of Antidumping Administrative Review, 61 FR 6812, 6814
(February 22, 1996), the Department disregarded the highest margin in
that case as adverse best information available (the predecessor to
facts available) because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin. The information used in calculating this margin was based on
sales and production data submitted by the petitioner in the LTFV
investigation, together with the most appropriate surrogate value
information available to the Department chosen from submissions by the
parties in the LTFV investigation, as well as information gathered by
the Department itself. Furthermore, the calculation of this margin was
subject to comment from interested parties in the 2001/2002
administrative review. As there is no information on the record of this
review that demonstrates that this rate is not appropriately used as
AFA, we determine that this rate has relevance.
As the 139.49 percent rate is both reliable and relevant, we
determine that it has probative value. Accordingly, we determine that
the calculated rate of 139.49 percent, which is the current PRC-wide
rate, is in accordance with the requirement of section 776(c) of the
Act that secondary information be corroborated to the extent
practicable (i.e., that it has probative value). We have assigned this
AFA rate to exports of the subject merchandise by the PRC-wide entity.
Preliminary Results of Review
We preliminarily determine that the following margin exists during
the period June 1, 2006, through May 31, 2007:
------------------------------------------------------------------------
Silicon Metal from the PRC
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PRC-Wide Entity\1\............................................. 139.49
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\1\ PRC-Wide Entity includes Hunan Provincial, Gather Hope and
Alloychem.
Any interested party may request a hearing within 30 days of
publication of this notice. Interested parties who wish to request a
hearing or to participate if one is requested, must submit a written
request to the Assistant Secretary for Import Administration within 30
days of the date of publication of this notice. Requests should
contain: (1) the party's name, address, and telephone number; (2) the
number of participants; and (3) a list of issues to be discussed. See
19 CFR 351.310(c).
Issues raised in the hearing will be limited to those raised in
case and rebuttal briefs. Case briefs from interested parties may be
submitted not later than 30 days of the date of publication of this
notice, pursuant to 19 CFR 351.309(c). Rebuttal briefs, limited to
issues raised in the case briefs, will be due five days later, pursuant
to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in
this proceeding are requested to submit with each argument (1) a
statement of the issue and (2) a brief summary of the argument. Parties
are also encouraged to provide a summary of the arguments not to exceed
five pages and a table of statutes, regulations, and cases cited.
The Department will issue the final results of this review,
including the results of its analysis of issues raised in any such
written briefs or at the hearing, if held, not later than 120 days
after the date of publication of this notice.
Assessment Rates
Pursuant to 19 CFR 351.212(b), the Department will determine, and
CBP shall assess, antidumping duties on all appropriate entries. The
Department intends to issue appropriate assessment instructions
directly to CBP 15 days after the date of publication of the final
results of this review. We will instruct CBP to assess antidumping
duties on all appropriate entries covered by this review if any
assessment rate calculated in the final results of this review is above
de minimis. The final results of this review shall be the basis for the
assessment of antidumping duties on entries of merchandise covered by
the final results of this review and for future deposits of estimated
duties, where applicable.
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 the subject merchandise 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 Hunan
Provincial, Gather Hope, and Alloychem, the cash deposit rate will be
established in the final results of this review; (2) for previously
investigated or reviewed PRC and non-PRC exporters not listed above
that have separate rates, the cash deposit rate will continue to be the
exporter-specific rate published for the most recent period; (3) for
all PRC exporters of subject merchandise which have not been found to
be entitled to a
[[Page 12382]]
separate rate, the cash deposit rate will be the PRC-wide rate of
139.49 percent; and (4) for all non-PRC exporters of subject
merchandise which have not received their own rate, the cash deposit
rate will be the rate applicable to the PRC exporters 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 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.
This administrative review and notice are in accordance with
sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Dated: February 29, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E8-4529 Filed 3-6-08; 8:45 am]
BILLING CODE 3510-DS-S