[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Notices]
[Pages 26927-26938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11462]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-904]
Certain Activated Carbon From the People's Republic of China:
Notice of Preliminary Results of the Second Antidumping Duty
Administrative Review, and Preliminary Rescission in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
second administrative review of the antidumping duty order on certain
activated carbon from the People's Republic of China (``PRC'') for the
period April 1, 2008, through March 31, 2009. The Department has
preliminarily determined that sales have been made below normal value
(``NV'') by the respondents examined in this administrative review. If
these preliminary results are adopted in our final results of this
review, the Department will instruct U.S. Customs and Border Protection
(``CBP'') to assess antidumping duties on all appropriate entries of
subject merchandise during the period of review.
DATES: Effective Date: May 13, 2010.
FOR FURTHER INFORMATION CONTACT: Bob Palmer or Kathleen Marksberry, AD/
CVD Operations, Office 9, Import Administration, International Trade
Administration, Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230; telephone: (202) 482-9068 or (202)
482-7906, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests by Petitioners \1\ and
certain PRC and other companies, in accordance with 19 CFR 351.213(b),
during the anniversary month of April, to conduct a review of certain
activated carbon producers and/or exporters from the PRC. On May 29,
2009, the Department initiated this review with respect to all
requested companies. See Initiation of Antidumping and Countervailing
Duty Administrative Reviews and Requests for Revocation in Part, 74 FR
25711 (May 29, 2009) (``Initiation Notice'').
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\1\ Norit Americas Inc. and Calgon Carbon Corporation.
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On June 18, 2009, Petitioners withdrew the request for review with
respect to 155 of the 187 originally requested companies. On July 2,
2009, the Department published a notice of rescission in the Federal
Register for those 155 companies for which the request for review was
withdrawn. See Certain Activated Carbon From the People's Republic of
China: Notice of Partial Rescission of Antidumping Duty Administrative
Review, 74 FR 31690 (July 2, 2009) (``First Rescission''). On August
21, 2009, Petitioners withdrew the request for review with respect to
an additional thirteen companies. On September 16, 2009, the Department
published a second notice of rescission in the Federal Register for
those thirteen companies. See Certain Activated Carbon from the
People's Republic of China: Notice of Partial Rescission of Antidumping
Duty Administrative Review, 74 FR 47558 (September 16, 2009) (``Second
Rescission''). Following the two partial rescissions, nineteen
companies remained subject to this review.\2\ On September 11, 2009,
Ningxia Lingzhou Foreign Trade Co., Ltd. (``Lingzhou'') submitted a
letter certifying it had no shipments during the period of review
(``POR'').\3\
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\2\ These companies are: Datong Municipal Yunguang Activated
Carbon Co., Ltd.; Datong Yunguang Chemicals Plant; Datong Juqiang
Activated Carbon Co., Ltd.; Cherishment Inc.; Hebei Foreign Trade
Advertisement Company; Ningxia Huahui Activated Carbon Co., Ltd.;
Ningxia Lingzhou Foreign Trade Co., Ltd.; Ningxia Mineral & Chemical
Limited.; Tangshan Solid Carbon Co., Ltd.; Jilin Bright Future
Chemicals Company, Ltd.; Jacobi Carbons AB; Tianjin Jacobi
International Trading Co., Ltd.; Ningxia Guanghua Cherishment
Activated Carbon Co., Ltd.; Beijing Pacific Activated Carbon
Products Co., Ltd.; Shanxi Qixian Foreign Trade Corporation; Shanxi
Newtime Co., Ltd.; Shanxi DMD Corporation; Shanxi Industry
Technology Trading Co., Ltd.; and United Manufacturing International
(Beijing) Ltd.
\3\ Companies have the opportunity to submit statements
certifying that they did not ship the subject merchandise to the
United States during the POR.
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On March 4, 2010, nine months after the publication of the
Initiation Notice, United Manufacturing International (Beijing) Ltd.
(``UMI'') requested permission to file a late separate rate
certification, because UMI asserted that it was not properly served
notice of this review at the time that the request was made by
Petitioners. The Department fully considered UMI's request in light of
UMI not being properly served with Petitioners' request. However, it is
the Department's practice that the Initiation Notice constitutes public
notice to all potential separate rate applicants of the initiation of
an investigation or review and the deadline for providing separate rate
information. Based upon this practice, the Department concludes that
because UMI did not file a separate rate certification in a timely
manner or request an extension within the time period for filing a
separate rate certification, we are not now granting additional time
for UMI to file a separate rate certification in this review.\4\
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\4\ See Letter from the Department to United Manufacturing
International (Beijing) Ltd. dated April 5, 2010.
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On November 24, 2009, the Department published a notice extending
the time period for issuing the preliminary results by 120 days to
April 30, 2009. See Certain Activated Carbon from the People's Republic
of China: Extension of Time Limits for Preliminary Results of the
Antidumping Duty Administrative Review, 74 FR 61330 (November 24,
2009). Additionally, as explained in the memorandum from the Deputy
Assistant Secretary for Import Administration, the Department has
exercised its discretion to toll deadlines for the duration of the
closure of the Federal Government from February 5, through February 12,
2010. See Memorandum to the Record from Ronald Lorentzen, DAS for
Import Administration, regarding ``Tolling of Administrative Deadlines
As a Result of the Government Closure During the Recent Snowstorm,''
dated February 12, 2010. Pursuant to that memorandum, all deadlines in
this segment of the proceeding have been extended by seven days. The
revised deadline for the preliminary results of this review is now May
7, 2010.
Respondent Selection
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter or producer of the
subject merchandise.\5\ However, section 777A(c)(2) of the Act gives
the Department discretion to limit its examination to a reasonable
number of exporters or producers if it is not practicable to examine
all exporters or producers involved in the review.
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\5\ See also 19 CFR 351.204(c) regarding respondent selection,
in general.
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On May 29, 2009, the Department released CBP data for entries of
the subject merchandise during the period of review (``POR'') under
administrative protective order (``APO'') to all interested parties
having access to materials released under APO inviting comments
regarding the CBP data and respondent selection. On June 4, 2009,
[[Page 26928]]
the Department extended the deadline for comments regarding the CBP
data.\6\ The Department received comments and rebuttal comments between
June 15, 2009 and July 21, 2009.
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\6\ See letter to All Interested Parties from Catherine
Bertrand, Program Manager, Office IX, dated June 4, 2009.
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On August 10, 2009, the Department issued its respondent selection
memorandum after assessing its resources, considering the number of
individual producers and/or exporters of activated carbon for which a
review had been requested, and determining that it could reasonably
examine two exporters subject to this review. Pursuant to section
777A(c)(2)(B) of the Act, the Department selected Jacobi Carbons AB
(``Jacobi'') and Calgon Carbon (Tianjin) Co. Ltd. (``CCT'') as
mandatory respondents.\7\ The Department sent its antidumping
questionnaire to CCT and Jacobi on August 10, 2009. On August 19, 2009,
CCT withdrew its request for review, and on August 21, 2009,
Petitioners withdrew their request for review of CCT. Since both
withdrawal requests were timely, and no other party requested a review
of CCT, in accordance with section 351.213(d)(1) of the Department's
regulations, the Department rescinded the administrative review with
respect to CCT. See Second Rescission. Consequently, on September 18,
2009, in accordance with section 777A(c)(2) of the Act and because the
Department determined it could review two mandatory respondents, the
Department selected Ningxia Huahui Activated Carbon Co., Ltd.
(``Huahui'') for individual examination in this review because Huahui
was the next largest exporter by volume during the POR, based on CBP
data of U.S. imports.\8\
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\7\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, from Katie Marksberry, International Trade Compliance
Analyst, Office 9; Antidumping Duty Administrative Review of Certain
Activated Carbon From the PRC: Selection of Respondents for
Individual Review, dated August 10, 2009 (``Respondent Selection
Memo'').
\8\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, through Catherine Bertrand, Program Manager, Office 9,
from Katie Marksberry, International Trade Compliance Analyst,
Office 9; Administrative Review of Certain Activated Carbon From the
PRC: Selection of Additional Mandatory Respondent, dated September
18, 2009 (``Additional Respondent Selection Memo'').
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Treatment of Shanxi DMD Corporation (``Shanxi DMD'')
On June 19, 2009, in comments regarding the CBP data placed on the
record for respondent selection, Shanxi DMD argued that the CBP data
used in respondent selection overstated the total volume of its POR
entries of subject merchandise. Additionally, Shanxi DMD claimed that
it had sales of non-subject merchandise during the POR which fell under
the same Harmonized Tariff Schedule subheading as the subject
merchandise. On July 13, 2009, the Department issued a supplemental
questionnaire to Shanxi DMD requesting that Shanxi DMD provide sales
and shipment data for the POR and for a period of two months preceding
the POR to estimate entries made during the POR.\9\ On July 20, 2009,
the Department received a response from Shanxi DMD containing sales and
shipment data for the POR and the two months preceding the POR. Based
upon Shanxi DMD's response to our questionnaire, the Department
selected Jacobi and Huahui as mandatory respondents in this
administrative review. The Department requested from CBP entry
documentation for all entries made by Shanxi DMD and on December 1,
2009, placed that entry documentation on the record and requested
comments from interested parties.\10\ The POR entry data the Department
received from CBP differed from the data provided by Shanxi DMD.
Parties submitted comments and rebuttal comments on the CBP entry
documentation between December 11, 2009 and December 28, 2009.
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\9\ See Letter from the Department to Shanxi DMD Corporation,
regarding Second Administrative Review of Certain Activated Carbon
From the People's Republic of China: Respondent Selection Comments
(July 13, 2009); see also Letter From the Department to Jacobi,
regarding Second Administrative Review of Certain Activated Carbon
From the People's Republic of China: Respondent Selection Comments
(July 13, 2009).
\10\ See Memorandum to the File, from Katie Marksberry, Case
Analyst Office IX, re: Shanxi DMD U.S. Customs and Border Protection
(``CBP'') Entry Documentation, dated December 1, 2009.
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Shanxi DMD explains that it provided POR quantity and value data by
purchase order and invoice date because these dates are normally used
to establish the legal date of sale, and that date of sale is used to
determine the sales universe for any respondent in any investigation or
review. Additionally, Shanxi DMD contends that its invoice date is the
correct date of sale and that Shanxi DMD provided to the Department a
table with shipment dates and invoice dates of invoices dating
backwards 60 days prior to the POR. Shanxi DMD contends that there is
nothing in the December 1, 2009 CBP release that contradicts the
earlier data submissions of Shanxi DMD.
Petitioners argue the Department should apply total adverse facts
available (``AFA'') to Shanxi DMD because CBP entry documentation
demonstrates that Shanxi DMD underreported its total POR entry volume,
and Petitioners contend that Shanxi DMD was attempting to manipulate
the respondent selection process. Petitioners argue that the
Department's selection of mandatory respondents is dependent on the
volume of subject merchandise sold by the respondents that entered the
United States during the POR. Instead, Petitioners argue, Shanxi DMD
limited its reporting to only sales that were invoiced during the POR
in order to avoid selection as a mandatory respondent. Therefore,
Petitioners conclude that the Department should apply the PRC-wide rate
to Shanxi DMD as AFA because Shanxi DMD did not address certain entry
documents that indicate that it underreported its POR exports to the
United States.
In the Respondent Selection Memo, the Department determined to use
Shanxi DMD's submitted sales and shipment data, based on the data
available at the time, because the Department determined the data to be
a more accurate approximation of Shanxi DMD's entries during the POR.
\11\ After receiving CBP entry documentation, it became clear that
Shanxi DMD's claims about the inaccuracy of CBP data at the time of
respondent selection were unfounded. However, Shanxi DMD did provide
the Department with all the information requested and in a timely
manner. Therefore, because Shanxi DMD cooperated with the Department in
providing all the requested information, application of total AFA would
be inappropriate and contrary to the Act. Accordingly, we are not
applying the PRC-wide rate to Shanxi DMD as total adverse facts
available.
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\11\ See Respondent Selection Memo at 8-9.
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Per-Unit Assessment
On December 22, 2009, Petitioners requested the Department
calculate specific, per-kilogram cash deposit and importer-specific
assessment rates for all respondents in this review, because
Petitioners allege parties are selling the subject merchandise (or
importing it) at prices significantly below prevailing market prices to
evade assessment of antidumping duties. See Petitioners' Request for
Establishment of Specific Rates, dated December 22, 2009 at 2.
Petitioners state that because the Department calculates antidumping
duty margins on a U.S. price that is different from the entered value,
this results in an under collection of duties if the importer reports
an improperly low entered value. Petitioners argue that per-unit
assessment rates do not
[[Page 26929]]
prejudice respondents in anyway and that the per-unit assessment rate
prevents the potential for abuse. Petitioners used the Global Trade
Information Services, Inc. (``World Trade Atlas'' or ``WTA'') average
unit value (``AUV'') of U.S. imports of activated carbon from the PRC
to determine if the per-unit price of sales made by respondents
indicates that those respondents are undervaluing their shipments to
lower the antidumping duty deposits at the U.S. port of entry.\12\
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\12\ See Petitioners' Request for Establishment of Specific
Rates, dated December 22, 2009 at Attachment I.
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The Department has analyzed the information on the record of this
review submitted by Jacobi, the only respondent who submitted the
entered value of its U.S. sales. Based on this analysis, the Department
has not found that there is a substantial difference between the
average U.S. sales price for activated carbon and the average entered
value reported to CBP for Jacobi. See Honey from the People's Republic
of China: Final Results and Final Rescission, In Part, of Antidumping
Duty Administrative Review, 70 FR 38873 (July 6, 2005) (``Honey 2005'')
and accompanying Issues and Decisions Memorandum at Comment 7.
Normally, the difference between entered value and the U.S. prices is
relatively small, as in this case. See id. With regard Huahui, who did
not report entered value because its sales were made on an EP basis,
the Department finds that a comparison of its gross unit price and the
WTA data \13\ for U.S. imports of activated carbon from the PRC, which
Petitioners provided, is not appropriate. This is because that HTS
category is a basket category that includes non-subject merchandise and
Petitioners could not provide evidence that the non-subject merchandise
was removed. Therefore, a comparison would not be on an apples-to-
apples basis.
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\13\ Published by Global Trade Information Services, Inc.
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Therefore, because there is insufficient evidence on the record to
warrant a change to a per-unit importer-specific assessment and cash
deposit rate, the Department preliminarily determines that it will
continue to calculate ad valorem cash deposit and importer-specific
assessment rates as in the past review.
Questionnaires
On August 10, 2009, the Department issued its initial non-market
economy (``NME'') antidumping duty questionnaire to the mandatory
respondent Jacobi. On September 21, 2009, the Department issued its
initial NME antidumping duty questionnaire to the mandatory respondent
Huahui. Huahui and Jacobi timely responded to the Department's initial
and subsequent supplemental questionnaires between September 2009 and
April 2010.
Period of Review
The POR is April 1, 2008, through March 31, 2009.
Scope of the Order
The merchandise subject to this order is certain activated carbon.
Certain activated carbon is a powdered, granular, or pelletized carbon
product obtained by ``activating'' with heat and steam various
materials containing carbon, including but not limited to coal
(including bituminous, lignite, and anthracite), wood, coconut shells,
olive stones, and peat. The thermal and steam treatments remove organic
materials and create an internal pore structure in the carbon material.
The producer can also use carbon dioxide gas (CO2) in place
of steam in this process. The vast majority of the internal porosity
developed during the high temperature steam (or CO2 gas)
activated process is a direct result of oxidation of a portion of the
solid carbon atoms in the raw material, converting them into a gaseous
form of carbon.
The scope of this order covers all forms of activated carbon that
are activated by steam or CO2, regardless of the raw
material, grade, mixture, additives, further washing or post-activation
chemical treatment (chemical or water washing, chemical impregnation or
other treatment), or product form. Unless specifically excluded, the
scope of this order covers all physical forms of certain activated
carbon, including powdered activated carbon (``PAC''), granular
activated carbon (``GAC''), and pelletized activated carbon.
Excluded from the scope of the order are chemically activated
carbons. The carbon-based raw material used in the chemical activation
process is treated with a strong chemical agent, including but not
limited to phosphoric acid, zinc chloride, sulfuric acid or potassium
hydroxide, that dehydrates molecules in the raw material, and results
in the formation of water that is removed from the raw material by
moderate heat treatment. The activated carbon created by chemical
activation has internal porosity developed primarily due to the action
of the chemical dehydration agent. Chemically activated carbons are
typically used to activate raw materials with a lignocellulosic
component such as cellulose, including wood, sawdust, paper mill waste
and peat.
To the extent that an imported activated carbon product is a blend
of steam and chemically activated carbons, products containing 50
percent or more steam (or CO2 gas) activated carbons are
within this scope, and those containing more than 50 percent chemically
activated carbons are outside this scope. This exclusion language
regarding blended material applies only to mixtures of steam and
chemically activated carbons.
Also excluded from the scope are reactivated carbons. Reactivated
carbons are previously used activated carbons that have had adsorbed
materials removed from their pore structure after use through the
application of heat, steam and/or chemicals.
Also excluded from the scope is activated carbon cloth. Activated
carbon cloth is a woven textile fabric made of or containing activated
carbon fibers. It is used in masks and filters and clothing of various
types where a woven format is required.
Any activated carbon meeting the physical description of subject
merchandise provided above that is not expressly excluded from the
scope is included within this scope. The products subject to the order
are currently classifiable under the Harmonized Tariff Schedule of the
United States (``HTSUS'') subheading 3802.10.00. Although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of this order is dispositive.
Preliminary Partial Rescission
As discussed in the ``Background'' section above, Lingzhou filed a
no shipment certification indicating that it did not export subject
merchandise to the United States during the POR. In order to examine
this claim, we reviewed the CBP data used for respondent selection and
found no discrepancies with the statement made by Lingzhou.
Additionally, we sent an inquiry to CBP asking if any CBP office had
any information contrary to the no shipments claim, and to alert the
Department within ten days of receiving our inquiry. CBP received our
inquiry on September 30, 2009. We have not received a response from CBP
with regard to our inquiry which indicates that CBP did not have
information that was contrary to the claim of Lingzhou. Therefore,
because the record indicates that Lingzhou did not export subject
merchandise to the United States during the POR, we are preliminarily
rescinding this administrative review with respect to this company.
See, e.g., Certain Frozen Fish Fillets From the
[[Page 26930]]
Socialist Republic of Vietnam: Notice of Preliminary Results and
Partial Rescission of the Third Antidumping Duty Administrative Review,
72 FR 53527, 53530 (September 19, 2007), unchanged in Certain Frozen
Fish Fillets From the Socialist Republic of Vietnam: Final Results of
Antidumping Duty Administrative Review and Partial Rescission, 73 FR
15479, 15480 (March 24, 2008) (``Third Fish Fillets Review'').
Non-Market Economy (``NME'') Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority. See Brake Rotors from the People's Republic of
China: Final Results and Partial Rescission of the 2004/2005
Administrative Review and Notice of Rescission of 2004/2005 New Shipper
Review, 71 FR 66304 (November 14, 2006). None of the parties to this
proceeding has contested such treatment. Accordingly, the Department
continues to treat the PRC as an NME and calculated NV in accordance
with section 773(c) of the Act, which applies to NME countries.
Surrogate Country
When the Department investigates imports from an NME country and
available information does not permit the Department to determine NV,
pursuant to section 773(a) of the Act, then, pursuant to section
773(c)(1), the Department determines NV on the basis of the factors of
production (``FOP'') utilized in producing the merchandise. Section
773(c)(4) of the Act directs the Department to value an NME producer's
FOPs, to the extent possible, in one or more market-economy countries
that (1) are at a level of economic development comparable to that of
the NME country, and (2) are significant producers of comparable
merchandise. Pursuant to this statutory directive, the Department
determined that India, Indonesia, Philippines, Colombia, Thailand, and
Peru are countries comparable to the PRC in terms of economic
development.\14\
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\14\ See the Department's Letter to All Interested Parties;
Second Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated September 30, 2009, at Attachment I
(``Surrogate Country List'').
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On September 30, 2009, the Department sent interested parties a
letter inviting comments on surrogate country selection and information
regarding valuing factors of production.\15\ On February 24, 2010, the
Department received information to value FOPs from Huahui, Jacobi, and
Petitioners. On March 8, 2010, Huahui and Petitioners filed rebuttal
surrogate value comments. All the surrogate values placed on the record
were obtained from sources in India. No parties provided comments with
respect to selection of a surrogate country.
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\15\ See the Department's Letter to All Interested Parties;
Second Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated September 30, 2009.
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Based on publicly available information placed on the record (e.g.,
production data), the Department determines India to be a reliable
source for surrogate values because India is at a comparable level of
economic development to the PRC pursuant to section 773(c)(4) of the
Act, is a significant producer of subject merchandise, and has publicly
available and reliable data for which to value the respondents' FOPs.
Accordingly, the Department has selected India as the surrogate country
for purposes of valuing the FOPs because it meets the Department's
criteria for surrogate country selection.
Duty Absorption
On June 29, 2009, Petitioners requested that the Department
determine whether antidumping duties had been absorbed for U.S. sales
of certain activated carbon made during the POR by the respondents
selected for review. If a duty absorption inquiry is requested, section
751(a)(4) of the Act directs the Department to determine during an
administrative review initiated two or four years after publication of
the order, whether antidumping duties have been absorbed by a foreign
producer or exporter, if the subject merchandise is sold in the United
States through an affiliated importer. Because the antidumping duty
order underlying this review was issued in 2007, and this review was
initiated in 2009, the request for the Department to conduct a duty
absorption inquiry is timely requested. Therefore, we are conducting a
duty absorption inquiry for this segment of the proceeding pursuant to
the Petitioners request.
Petitioners requested that the Department investigate whether
Jacobi Carbons AB, Ningxia Guanghua Cherishmet Activated Carbon Co.,
Ltd., a separate rate company in this review, and any other separate
rate company with affiliated U.S. importers had absorbed duties. As
discussed above and pursuant to section 777A(c)(2)(B), because of the
large number of companies subject to this review, the Department
selected two companies as mandatory respondents and thus only issued
its complete questionnaire to these two companies. In determining
whether antidumping duties have been absorbed, the Department requires
certain specific data (i.e., U.S. sales data) to ascertain whether
those sales have been made at less than NV. Since U.S. sales data are
only obtained from the complete questionnaire (i.e., only mandatory
respondents submit U.S. sales data), and no other companies were
required to provide U.S. sales data, we do not have the information
necessary to assess whether any other companies absorbed duties.
Accordingly, for those companies not selected as mandatory respondents,
we cannot make duty absorption determinations with respect to those
companies. Therefore, between Jacobi and Huahui, Jacobi is the only
mandatory respondent with an affiliated importer in the United States,
as required by section 751(a)(4) of the Act.
In determining whether the respondent has absorbed antidumping
duties, we make a rebuttable presumption that the duties will be
absorbed for constructed export price (``CEP'') sales that have been
made at less than NV. This presumption can be rebutted with evidence
(e.g., an agreement between the affiliated importer and unaffiliated
purchaser) that the unaffiliated purchaser will pay the full duty
ultimately assessed on the subject merchandise. See, e.g., Certain
Stainless Steel Butt-Weld Pipe Fittings From Taiwan: Preliminary
Results of Antidumping Duty Administrative Review and Notice of Intent
to Rescind in Part, 70 FR 39735, 39737 (July 11, 2005); unchanged in
Notice of Final Results and Final Rescission in Part of Antidumping
Duty Administrative Review: Certain Stainless Steel Butt-Weld Pipe
Fittings From Taiwan, 70 FR 73727 (December 13, 2005).
On January 28, 2010, the Department sent Jacobi a letter requesting
Jacobi to provide evidence to demonstrate that its unaffiliated
purchasers will ultimately pay any antidumping duties assessed on
entries during the POR. Jacobi did not provide any such evidence as it
did not submit a response to our request. Because Jacobi did not rebut
the duty absorption presumption with evidence that the unaffiliated
U.S. purchaser will pay the full duty ultimately assessed on the
subject merchandise, we preliminarily find that Jacobi has absorbed
antidumping duties on all U.S.
[[Page 26931]]
sales made through its affiliated importer of record.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the Act provide that, if
necessary information is not available on the record, or 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
subsection 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from {the Department{time} for
information, notifies {the Department{time} that such party is unable
to submit the information requested in the requested form and manner,
together with a full explanation and suggested alternative forms in
which such party is able to submit the information,'' the Department
may modify the requirements to avoid imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) The information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in providing the information
and meeting the requirements established by the Department; and (5) the
information can be used without undue difficulties.
However, section 776(b) of the Act states 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
from the administering authority or the Commission, the administering
authority or the Commission * * *, in reaching the applicable
determination under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts otherwise
available.'' See also Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870
(1994) (SAA), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99. 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.'' Id. An adverse inference may include reliance on information
derived from the petition, the final determination in the
investigation, any previous review, or any other information placed on
the record. See section 776(b) of the Act.
Jacobi's Excluded Producers
On August 24, 2009, Jacobi requested to be excused from reporting
FOP data for certain Chinese producers. On September 2, 2009, Jacobi
provided detailed information regarding its producers and production
quantities. On September 17, 2009, the Department notified Jacobi that
due to the large number of producers that supplied Jacobi during the
POR, Jacobi would be excused from reporting certain FOP data. See the
Department's Letter to Jacobi dated September 17, 2009. Specifically,
the Department did not require Jacobi to report FOP data for its five
smallest producers. Additionally, the Department notified Jacobi that
it was not required to report FOP data for products that were purchased
and not produced by Jacobi's suppliers, as indicated in Jacobi's August
24, 2009 letter. Thus, the Department determined that upon Jacobi's
acceptance of the exclusion terms, the Department would determine the
appropriate facts available to apply, in lieu of the actual FOP data,
to the corresponding U.S. sales of subject merchandise.
In accordance with section 776(a)(1) of the Act, the Department is
applying facts available to determine the NV for the sales
corresponding to the FOP data that Jacobi was excused from reporting.
Due to the proprietary nature of the factual information concerning
these producers, these issues are addressed in a separate business
proprietary memorandum where a detailed explanation of the facts
available calculation is provided. See Memorandum to Catherine
Bertrand, Program Manager, AD/CVD Operations, Office 9, from Katie
Marksberry, Case Analyst, AD/CVD Operations, Office 9: Preliminary
Results Analysis Memorandum for Jacobi Carbons AB in the Antidumping
Duty Administrative Review of Certain Activated Carbon From the
People's Republic of China, dated May 7, 2010 (``Jacobi Prelim Analysis
Memo'').
Assignment of Jacobi Carbons AB's Antidumping Duty Rate
We note that in the less-than-fair-value investigation of this
antidumping duty order, we stated that ``where Jacobi Tianjin acted as
an export facilitator for Jacobi AB, those exports are also eligible
for Jacobi AB's antidumping duty cash deposit rate.'' \16\ In this
review Jacobi stated that only Jacobi Carbons AB made exports of
subject merchandise to the United States during the POR.\17\
Additionally, Jacobi stated that during the POR, both Tianjin Jacobi
International Trading Co. Ltd. (``Tianjin Jacobi'') and Jacobi Carbons
Industry (Tianjin) (``JCC'') ``acted to facilitate exports to the
United States.'' \18\ In its April 30, 2010, supplemental questionnaire
response, Jacobi submitted a selling functions chart which indicates
that Tianjin Jacobi and JCC perform the same functions. Therefore, for
these preliminary results, we find that JCC and Tianjin Jacobi both act
as export facilitators for Jacobi Carbons AB. Additionally, we find it
appropriate for Jacobi Carbons AB, Tianjin Jacobi and JCC to receive
the antidumping duty rate assigned to Jacobi Carbons AB.
---------------------------------------------------------------------------
\16\ See Preliminary Determination of Sales at Less Than Fair
Value and Postponement of Final Determination: Certain Activated
Carbon From the People's Republic of China, 71 FR 59721 (October 11,
2006); unchanged in Final Determination of Sales at Less Than Fair
Value: Certain Activated Carbon from the People's Republic of China,
72 FR 9508 (March 2, 2007).
\17\ See Jacobi's Response to the Department's Supplemental A
and C Questionnaire, dated December 14, 2009 at 2.
\18\ See Jacobi's Response to the Department's Supplemental
Questionnaire Regarding Jacobi's Antidumping Duty Rate, dated April
20, 2010, at 1.
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Separate Rates
A designation of a country as an NME remains in effect until it is
revoked by the Department. See section 771(18)(c)(i) of the Act. In
proceedings involving NME countries, it is the Department's practice to
begin with a rebuttable presumption that all companies within the
country are subject to government control and thus
[[Page 26932]]
should be assessed a single antidumping duty rate. See Notice of Final
Determination of Sales at Less Than Fair Value, and Affirmative
Critical Circumstances, In Part: Certain Lined Paper Products From the
People's Republic of China, 71 FR 53079, 53080 (September 8, 2006);
Final Determination of Sales at Less Than Fair Value and Final Partial
Affirmative Determination of Critical Circumstances: Diamond Sawblades
and Parts Thereof From the People's Republic of China, 71 FR 29303,
29307 (May 22, 2006).
In the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME reviews. See Initiation Notice. It is the
Department's policy to assign all exporters of merchandise subject to
investigation in an NME country this single rate unless an exporter can
affirmatively demonstrate that it is sufficiently independent so as to
be entitled to a separate rate. Id. Exporters can demonstrate this
independence through the absence of both de jure and de facto
government control over export activities. Id. The Department analyzes
each entity exporting the subject merchandise under a test arising from
the Notice of 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 further developed in Notice of 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''). However, if the Department determines that a company is
wholly foreign-owned or located in a market economy, then a separate
rate analysis is not necessary to determine whether it is independent
from government control. See, e.g., Final Results of Antidumping Duty
Administrative Review: Petroleum Wax Candles From the People's Republic
of China, 72 FR 52355, 52356 (September 13, 2007).
Excluding the companies selected for individual review, the
Department received separate rate applications or certifications from
the following companies: Beijing Pacific Activated Carbon Products Co.,
Ltd.; Datong Juqiang Activated Carbon Co., Ltd.; Datong Municipal
Yunguang Activated Carbon Co., Ltd.; Jilin Bright Future Chemicals
Company, Ltd.; Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd.;
Ningxia Mineral & Chemical Limited; Shanxi DMD Corporation; Shanxi
Industry Technology Trading Co., Ltd.; Shanxi Qixian Foreign Trade
Corporation; and Tangshan Solid Carbon Co., Ltd.
Additionally, the Department received completed responses to the
Section A portion of the NME questionnaire from Huahui and Jacobi,
which contained information pertaining to the companies' eligibility
for a separate rate. However, Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Shanxi Newtime Co., Ltd.,
and United Manufacturing International (Beijing) Ltd., companies upon
which the Department initiated administrative reviews that have not
been rescinded, did not submit either a separate-rate application or
certification in a timely manner.\19\ Therefore, because Datong
Yunguang Chemicals Plant, Hebei Foreign Trade and Advertising
Corporation, Shanxi Newtime Co., Ltd., and United Manufacturing
International (Beijing) Ltd. did not demonstrate their eligibility for
separate rate status in a timely manner, we have determined it is
appropriate to consider these companies as part of the PRC-wide entity.
---------------------------------------------------------------------------
\19\ For a full discussion of United Manufacturing International
(Beijing) Ltd.'s separate rate status, see supra at p 2-3.
---------------------------------------------------------------------------
Separate Rate Recipients
1. Wholly Foreign-Owned
Jacobi reported that it is wholly owned by a company located in a
market-economy country, Sweden. See Jacobi's Section A Questionnaire
Response dated September 10, 2008, at page 3. Therefore, there is no
PRC ownership of Jacobi, and because the Department has no evidence
indicating that Jacobi is under the control of the PRC, a separate
rates analysis is not necessary to determine whether it is independent
from government control.\20\ Additionally, one of the exporters under
review not selected for individual review, Tangshan Solid Carbon Co.,
Ltd., reported in its separate-rate certification that it is 100
percent foreign owned. See Tangshan Solid Carbon Co. Ltd.'s Separate
Rate Certification dated June 29, 2010, at 4. Accordingly, the
Department has preliminarily granted separate rate status to Jacobi and
Tangshan Solid Carbon Co. Ltd.
---------------------------------------------------------------------------
\20\ See Brake Rotors From the People's Republic of China:
Preliminary Results and Partial Rescission of the Fourth New Shipper
Review and Rescission of the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001), unchanged in Brake
Rotors From the People's Republic of China: Final Results and
Partial Rescission of Fourth New Shipper Review and Rescission of
Third Antidumping Duty Administrative Review, 66 FR 27063 (May 16,
2001); Notice of Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People's Republic of China, 64
FR 71104 (December 20, 1999).
---------------------------------------------------------------------------
2. Joint Ventures Between Chinese and Foreign Companies or Wholly
Chinese-Owned Companies
Huahui \21\ and nine \22\ of the separate rate applicants in this
administrative review stated that they are either joint ventures
between Chinese and foreign companies or are wholly Chinese-owned
companies. In accordance with its practice, the Department has analyzed
whether the separate-rate applicants have demonstrated the absence of
de jure and de facto governmental control over their respective export
activities.
---------------------------------------------------------------------------
\21\ See Huahui's Section A Questionnaire Response dated October
21, 2009, at pages 2-6.
\22\ These companies are: Beijing Pacific Activated Carbon
Products Co., Ltd.; Datong Juqiang Activated Carbon Co., Ltd.;
Datong Municipal Yunguang Activated Carbon Co., Ltd.; Jilin Bright
Future Chemicals Company, Ltd.; Ningxia Guanghua Cherishmet
Activated Carbon Co., Ltd.; Ningxia Mineral & Chemical Limited;
Shanxi DMD Corporation; Shanxi Industry Technology Trading Co.,
Ltd.; and Shanxi Qixian Foreign Trade Corporation.
---------------------------------------------------------------------------
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
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.
See Sparklers, 56 FR at 20589. The evidence provided by Huahui and nine
separate rate applicants supports a preliminary finding of de jure
absence of government control based on the following: (1) An absence of
restrictive stipulations associated with the individual exporter's
business and export licenses; (2) there are applicable legislative
enactments decentralizing control of the companies; and (3) there are
formal measures by the government decentralizing control of companies.
See, e.g., Huahui's Section A Questionnaire Response dated October 21,
2009, at pages 2-6; Beijing Pacific Activated Carbon Products Co.,
Ltd.'s Separate Rate Certification dated June 29, 2009, at 5; Shanxi
Industry Technology Trading Co., Ltd.'s Separate Rate Certification
dated June 25, 2009, at 5-6.
b. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto
[[Page 26933]]
government control of its export functions: (1) Whether the export
prices are set by or are subject to the approval of a government
agency; (2) whether the respondent has authority to negotiate and sign
contracts and other agreements; (3) whether the respondent has autonomy
from the government in making decisions regarding the selection of
management; and (4) whether the respondent retains the proceeds of its
export sales and makes independent decisions regarding disposition of
profits or financing of losses. See Silicon Carbide, 59 FR at 22586-87;
see also Notice of Final Determination of Sales at Less Than Fair
Value: Furfuryl Alcohol From the People's Republic of China, 60 FR
22544, 22545 (May 8, 1995). 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 government control
which would preclude the Department from assigning separate rates. The
evidence provided by Huahui and nine separate rate applicants supports
a preliminary finding of de facto absence of government control based
on the following: (1) The companies set their own export prices
independent of the government and without the approval of a government
authority; (2) the companies have authority to negotiate and sign
contracts and other agreements; (3) the companies have autonomy from
the government in making decisions regarding the selection of
management; and (4) there is no restriction on any of the companies'
use of export revenue. See, e.g., Huahui's Section A Questionnaire
Response dated October 21, 2009, at pages 2-6; and Datong Municipal
Yunguang Activated Carbon Co., Ltd. dated July 23, 2009, at 7.
Therefore, the Department preliminarily finds that Huahui and nine
separate-rate applicants have established that they qualify for a
separate rate under the criteria established by Silicon Carbide and
Sparklers.
Separate Rate Calculation
As stated previously, this review covers nineteen companies. Of
those, the Department selected two exporters, Huahui and Jacobi
(including affiliates), as mandatory respondents in this review. As
stated above, four companies, Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Shanxi Newtime Co., Ltd.,
and United Manufacturing International (Beijing) Ltd. are part of the
PRC-Wide entity, and thus, are not entitled to a separate rate.
Additionally, we are preliminarily rescinding the review with respect
to Ningxia Lingzhou Foreign Trade Co., Ltd. because we determined that
it had no shipments of subject merchandise to the United States during
the POR. The remaining nine companies submitted timely information as
requested by the Department and remain subject to this review as
cooperative separate rate respondents.
For the exporters subject to this review that were determined to be
eligible for separate rate status, but were not selected as mandatory
respondents, the Department generally weight-averages the rates
calculated for the mandatory respondents, excluding any rates that are
zero, de minimis, or based entirely on FA.\23\ Consequently, because
the Department has calculated positive margins for both mandatory
respondents, Huahui and Jacobi, in these preliminary results, and
consistent with our practice, we have preliminarily established a
margin for the separate rate respondents based on a simple average of
the rates we calculated for the two mandatory respondents. Because
there are only two respondents for which a company-specific margin was
calculated in this review, the Department has calculated a simple
average margin to ensure that the total import quantity and value for
each company is not inadvertently revealed.\24\ The rate established
for the separate rate respondents is 27.28 percent. Entities receiving
this rate are identified by name in the ``Preliminary Results of
Review'' section of this notice.
---------------------------------------------------------------------------
\23\ See, e.g., Wooden Bedroom Furniture From the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review, Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR 8273, 8279
(February 13, 2008) (unchanged in Wooden Bedroom Furniture from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August
20, 2008)).
\24\ See Memorandum to the File, Re: Antidumping Duty
Administrative Review of Certain Activated Carbon from the People's
Republic of China: Preliminary Results Simple-Average Margin for
Separate Rate Respondents, dated May 7, 2010.
---------------------------------------------------------------------------
Date of Sale
Huahui and Jacobi reported the invoice date as the date of sale
because they claim that, for their U.S. sales of subject merchandise
made during the POR, the material terms of sale were established on the
invoice date. In accordance with 19 CFR 351.401(i) and the Department's
long-standing practice of determining the date of sale,\25\ the
Department preliminarily determines that the invoice date is the most
appropriate date to use as Huahui's and Jacobi's date of sale.
---------------------------------------------------------------------------
\25\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Frozen and Canned Warmwater Shrimp from
Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues
and Decision Memorandum at Comment 10.
---------------------------------------------------------------------------
Fair Value Comparisons
To determine whether sales of certain activated carbon to the
United States by Huahui and Jacobi were made at less than fair value,
the Department compared either export price (``EP'') or constructed
export price (``CEP'') to NV, as described in the ``U.S. Price,'' and
``Normal Value'' sections below.
U.S. Price
Export Price
In accordance with section 772(a) of the Act, the Department
calculated the EP for Huahui's sales to the United State because the
first sale to an unaffiliated party was made before the date of
importation and the use of CEP was not otherwise warranted. The
Department calculated EP based on the price to unaffiliated purchasers
in the United States. In accordance with section 772(c) of the Act, as
appropriate, the Department deducted from the starting price to
unaffiliated purchasers foreign inland freight and brokerage and
handling. Each of these services was either provided by an NME vendor
or paid for using an NME currency. Thus, the Department based the
deduction of these movement charges on surrogate values. Additionally,
for international freight provided by a market economy provider and
paid in U.S. dollars, the Department used the actual cost per kilogram
of the freight. See Memorandum to the File through Catherine Bertrand,
Program Manager, Office IX, from Bob Palmer, Analyst, re; Second
Administrative Review of Certain Activated Carbon from the People's
Republic of China: Surrogate Values for the Preliminary Results dated
May 7, 2010 (``Prelim Surrogate Value Memo'') for details regarding the
surrogate values for movement expenses.
Constructed Export Price
For all of Jacobi's sales, the Department based U.S. price on CEP
in accordance with section 772(b) of the Act, because sales were made
on behalf of the Chinese-based companies by a U.S. affiliate to
unaffiliated purchasers in the United States. For these sales, the
Department based CEP on prices to the first unaffiliated purchaser in
the United States. Where appropriate, the Department made deductions
from the
[[Page 26934]]
starting price (gross unit price) for foreign movement expenses,
international movement expenses, U.S. movement expenses, and
appropriate selling adjustments, in accordance with section
772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, the Department
also deducted those selling expenses associated with economic
activities occurring in the United States. The Department deducted,
where appropriate, commissions, inventory carrying costs, interest
revenue, credit expenses, warranty expenses, and indirect selling
expenses. For those expenses that were provided by a market economy
provider and paid for in a market economy currency, the Department used
the reported expense. Due to the proprietary nature of certain
adjustments to U.S. price, for a detailed description of all
adjustments made to U.S. price for each company, see the company
specific analysis memorandums, dated May 7, 2010.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using a FOP methodology if the merchandise is exported
from an NME 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 non-
market economies renders price comparisons and the calculation of
production costs invalid under the Department's normal methodologies.
FOP Reporting Exclusions
As stated above, the Department granted exclusions for certain
nominal producers to be excused from providing FOP data for Jacobi. As
the corresponding U.S. sales of the subject merchandise supplied by the
excused producers were reported in the U.S. sales listing, the
Department has applied the calculated average normal value of the
subject merchandise produced by Jacobi, as facts available, to those
sales observations associated with the excluded producers. See Jacobi
Prelim Analysis Memo.
Factor Valuations
In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to value the FOPs, but when
a producer sources an input from a market economy country and pays for
it in a market economy currency, the Department may value the factor
using the actual price paid for the input.\26\ During the POR, Jacobi
reported that it purchased certain inputs from a market economy
supplier and paid for the inputs in a market economy currency. See
Jacobi's Section D Questionnaire Response dated October 15, 2009, at 5
and Exhibit 2. The Department has a rebuttable presumption that market
economy input prices are the best available information for valuing an
input when the total volume of the input purchased from all market
economy sources during the period of investigation or review exceeds 33
percent of the total volume of the input purchased from all sources
during the period. See Antidumping Methodologies: Market Economy
Inputs, Expected Non-Market Economy Wages, Duty Drawback; and Request
for Comments, 71 FR 61716, 61717-18 (October 19, 2006) (``Antidumping
Methodologies''). In these cases, unless case-specific facts provide
adequate grounds to rebut the Department's presumption, the Department
will use the weighted average market economy purchase price to value
the input. Alternatively, when the volume of an NME firm's purchases of
an input from market economy suppliers during the period is below 33
percent of its total volume of purchases of the input during the
period, but where these purchases are otherwise valid and there is no
reason to disregard the prices, the Department will weight-average the
market economy purchase price with an appropriate surrogate value
(``SV'') according to their respective shares of the total volume of
purchases, unless case-specific facts provide adequate grounds to rebut
the presumption. See Antidumping Methodologies. When a firm has made
market economy input purchases that may have been dumped or subsidized,
are not bona fide, or are otherwise not acceptable for use in a dumping
calculation, the Department will exclude them from the numerator of the
ratio to ensure a fair determination of whether valid market economy
purchases meet the 33-percent threshold. See Antidumping Methodologies.
---------------------------------------------------------------------------
\26\ See Lasko Metal Products v. United States, 43 F.3d 1442,
1445-1446 (Fed. Cir. 1994) (affirming the Department's use of
market-based prices to value certain FOPs).
---------------------------------------------------------------------------
The Department used the Indian Import Statistics to value the raw
material and packing material inputs that Huahui and Jacobi used to
produce the subject merchandise under review during the POR, except
where listed below.\27\ With regard to both the Indian import-based
surrogate values and the market economy input values, the Department
has disregarded prices that the Department has reason to believe or
suspect may be subsidized. The Department has reason to believe or
suspect that prices of inputs from Indonesia, South Korea, and Thailand
may have been subsidized. The Department has found in other proceedings
that these countries maintain broadly available, non-industry-specific
export subsidies and, therefore, it is reasonable to infer that all
exports to all markets from these countries may be subsidized.\28\ The
Department is also guided by the statute's legislative history that
explains that it is not necessary to conduct a formal investigation to
ensure that such prices are not subsidized. See Omnibus Trade and
Competitiveness Act of 1988, Conference Report to accompany H.R. Rep.
100-576 at 590 (1988) reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24; see
also Preliminary Determination of Sales at Less Than Fair Value: Coated
Free Sheet Paper from the People's Republic of China, 72 FR 30758,
30763 n.6 (June 4, 2007) unchanged in Final Determination of Sales at
Less Than Fair Value: Coated Free Sheet Paper from the People's
Republic of China, 72 FR 60632 (October 25, 2007). Rather, the
Department bases its decision on information that is available to it at
the time it makes its determination. See Polyethylene Terephthalate
Film, Sheet, and Strip from the People's Republic of China: Preliminary
Determination of Sales at Less Than Fair Value, 73 FR 24552, 24559 (May
5, 2008), unchanged in Polyethylene Terephthalate Film, Sheet, and
Strip from the People's Republic of China: Final Determination of Sales
at Less Than Fair Value, 73 FR 55039 (September 24, 2008). Therefore,
the Department has not used prices from these countries in calculating
the Indian import-based surrogate values. Additionally, the Department
[[Page 26935]]
disregarded prices from NME countries. Finally, imports that were
labeled as originating from an ``unspecified'' country were excluded
from the average value, as the Department could not be certain that
they were not from either an NME country or a country with general
export subsidies. See id.
---------------------------------------------------------------------------
\27\ Indian import data in the World Trade Atlas began
identifying the original reporting currency for India as the U.S.
Dollar. See Memorandum to the File, through Bob Palmer, Case
Analyst, Office IX, re: Memorandum to the File from Edward Yang,
Senior Executive Coordinator, AD/CVD Operations, China/NME Unit from
Jennifer Moats, Senior Special Assistant, AD/CVD Operations, China/
NME Unit, regarding Indian Import Statistics Currency Denomination
in the World Trade Atlas, dated May 7, 2010.
\28\ See Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam: Notice of Preliminary Results and Preliminary Partial
Rescission of Antidumping Duty Administrative Review, 70 FR 54007,
54011 (September 13, 2005), unchanged in Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam: Final Results of the First
Administrative Review, 71 FR 14170 (March 21, 2006); China National
Machinery Import & Export Corporation v. United States, 293 F. Supp.
2d 1334 (CIT 2003), as affirmed by the Federal Circuit, 104 Fed.
Appx. 183 (Fed. Cir. 2004).
---------------------------------------------------------------------------
In accordance with section 773(c) of the Act, for subject
merchandise produced by Huahui and Jacobi, the Department calculated NV
based on the FOPs reported by Huahui and Jacobi for the POR. The
Department used data from the Indian Import Statistics and other
publicly available Indian sources in order to calculate surrogate
values for Huahui and Jacobi FOPs (direct materials, energy, and
packing materials) and certain movement expenses. To calculate NV, the
Department multiplied the reported per-unit factor quantities by
publicly available Indian surrogate values (except as noted below). The
Department's practice when selecting the best available information for
valuing FOPs is to select, to the extent practicable, surrogate values
which are product-specific, representative of a broad market average,
publicly available, contemporaneous with the POR and exclusive of taxes
and duties. See, e.g., Electrolytic Manganese Dioxide From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 48195 (August 18, 2008) and accompanying Issues and
Decision Memorandum at Comment 2.
As appropriate, the Department adjusted input prices by including
freight costs to render the prices delivered prices. Specifically, the
Department added to Indian import surrogate values a surrogate freight
cost using the shorter of the reported distance from the domestic
supplier to the factory or the distance from the nearest seaport to the
factory. This adjustment is in accordance with the decision of the
Federal Circuit in Sigma Corp. v. United States, 117 F. 3d 1401, 1408
(Fed. Cir. 1997). For a detailed description of all surrogate values
used for Huahui and Jacobi, see Prelim Surrogate Value Memo.
In those instances where the Department could not obtain publicly
available information contemporaneous to the POR with which to value
factors, the Department adjusted the surrogate values using, where
appropriate, the Indian Wholesale Price Index (``WPI'') as published in
the International Financial Statistics of the International Monetary
Fund, a printout of which is attached to the Prelim Surrogate Value
Memo at Exhibit 2. Where necessary, the Department adjusted surrogate
values for inflation, exchange rates, and taxes, and the Department
converted all applicable items to a per-kilogram or per-metric ton
basis.
For bituminous coal used as a feedstock in the production of the
subject merchandise, the Department used Indian import prices for
coking coal, because certain respondents reported using low-ash content
bituminous coal as a feedstock in the production of the subject
merchandise and Coal India Limited (``CIL'') data does not provide
price data for low-ash content bituminous coal. See Prelim Surrogate
Value Memo. The Department used CIL data to value steam coal and
bituminous coal used as an energy source, where the manufacturers
provided Useful Heat Values (``UHV'') of their bituminous energy coal
and steam coal. However, where manufactures of the subject merchandise
indicate they do not track UHV and were unable to report this
information, the Department used the Indian import prices for steam
coal. The Department finds that CIL data has specific grades of non-
coking energy coal, measured in UHV, which correspond to the types of
steam and bituminous coal used by the respondents as energy coals,
therefore, CIL is more specific to the reported input. The Department
used CIL's prices dated from December 12, 2007, effective throughout
the POR. For further details regarding the Department's use of CIL
data, see Prelim Surrogate Value Memo.
The Department notes that Petitioners have argued that Jacobi's
unaffiliated suppliers should report the transport bags that are used
to transport subject merchandise from the affiliates to Jacobi Tianjin
for further packing prior to being exported to the United States.\29\
Jacobi argues that its bags are reused and therefore should be
considered an overhead expense and not included as a packing input.\30\
In past cases we have determined that certain consumables that were
regularly replaced and required in the production process should be
considered FOPs, even if they are considered to be an overhead expense
in the company's normal course of business.\31\ Therefore, because
Jacobi regularly replaces these bags and they are necessary to Jacobi's
production process, we have determined that the transport bags used by
Jacobi's affiliates should be included as packing FOPs based on the
reported useful life of the bags. Accordingly, we are including
Jacobi's transport bags as an FOP for the preliminary results of
review.\32\
---------------------------------------------------------------------------
\29\ See Letter from Kelley Drye to the Department, regarding
Second Administrative Review of the Antidumping Duty Order on
Certain Activated Carbon from the People's Republic of China:
Petitioner's Comments on Supplemental Questionnaire Responses of
Jacobi Carbons AB, dated January 11, 2010.
\30\ See Jacobi's Supplemental Section D Questionnaire Response
for Jacobi Tianjin, dated March 29, 2010.
\31\ See Steel Wire Garment Hangers from the People's Republic
of China: Final Determination of Sales at Less Than Fair Value, 73
FR 47587, August 14, 2008; and accompanying Issues and Decision
Memorandum at Comment 2.
\32\ See Memorandum to the File, through Catherine Bertrand,
Program Manager, AD/CVD Operations, Office IX, from Katie
Marksberry, Case Analyst, AD/CVD Operations, Office IX: Preliminary
Results Analysis Memorandum for Jacobi Carbons AB in the Antidumping
Duty Administrative Review of Certain Activated Carbon from the
People's Republic of China (``Jacobi's Prelim Analysis Memo''),
dated May 7, 2010.
---------------------------------------------------------------------------
The Department valued electricity using price data for small,
medium, and large industries, as published by the Central Electricity
Authority of the Government of India (``CEA'') in its publication
titled ``Electricity Tariff & Duty and Average Rates of Electricity
Supply in India,'' dated March 2008. These electricity rates represent
actual country-wide, publicly available information on tax-exclusive
electricity rates charged to industries in India. We did not inflate
this value because utility rates represent current rates, as indicated
by the effective dates listed for each of the rates provided. See
Prelim Surrogate Value Memo.
Because water is essential to the production process of the subject
merchandise, the Department is considering water to be a direct
material input, and not as overhead, and valued water with a surrogate
value according to our practice. See Final Determination of Sales at
Less Than Fair Value and Critical Circumstances: Certain Malleable Iron
Pipe Fittings From the People's Republic of China, 68 FR 61395 (October
28, 2003) and accompanying Issue and Decision Memorandum at Comment 11.
The Department valued water using data from the Maharashtra Industrial
Development Corporation (www.midcindia.org) as it includes a wide range
of industrial water tariffs. This source provides 386 industrial water
rates within the Maharashtra province from April 2009 through June
2009, of which 193 for the ``inside industrial areas'' usage category
and 193 for the ``outside industrial areas'' usage category. Because
the value was not contemporaneous with the POR, we deflated the
surrogate value. See Prelim Surrogate Value Memo.
Consistent with 19 CFR 351.408(c)(3), we valued direct, indirect,
and packing labor, using the most recently calculated regression-based
wage rate, which relies
[[Page 26936]]
on 2007 data. This wage rate can currently be found on the Department's
Web site on Import Administration's home page, Reference Material,
Expected Wages of Selected NME Countries, revised in December 2009,
http://ia.ita.doc.gov/wages/07wages/final/final-2009-2007-wages.html.
The source of these wage-rate data on the Import Administration's Web
site is the 2006 and 2007 data in Chapter 5B of the International
Labour Statistics. Because this regression-based wage rate does not
separate the labor rates into different skill levels or types of labor,
the Department has applied the same wage rate to all skill levels and
types of labor reported by the respondents. See Prelim Surrogate Value
Memo.
The Department calculated the surrogate value for purchased steam
based upon the April 2008-March 2009 financial statement of Hindalco
Industries Limited (``Hindalco''). See Jacobi's Surrogate Value
Comments: Certain Activated Carbon form China, dated February 24, 2010
at Exhibit SV-7. For a detailed explanation of our reasons for using
Hindalco's financial statements as the source of the surrogate value
for purchased steam, see Prelim Surrogate Value Memo.
The Department valued truck freight expenses using a per-unit
average rate calculated from data on the Infobanc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this
Web site contains inland freight truck rates between many large Indian
cities. See Prelim Surrogate Value Memo at Attachment 8.
To value brokerage and handling, the Department calculated a simple
average of the brokerage and handling costs that were reported in
public submissions that were filed in three antidumping duty cases.\33\
Specifically, the Department averaged the public brokerage and handling
expenses reported by Navneet Publications (India) Ltd. in the 2007-2008
administrative review of certain lined paper products from India, Essar
Steel Limited in the 2006-2007 antidumping duty administrative review
of hot-rolled carbon steel flat products from India, and Himalaya
International Ltd. in the 2005-2006 administrative review of certain
preserved mushrooms from India. The Department inflated the brokerage
and handling rate using the appropriate WPI inflator. See Prelim
Surrogate Value Memo.
---------------------------------------------------------------------------
\33\ See Letter from Troutman Sander, Certain Activated Carbon
form the People's Republic of China: Second Administrative Review;
Submission of Publicly Available Information to Value Factors of
Production, dated February 24, 2010 at Exhibit 15; see also Certain
Preserved Mushrooms from India: Final Results of Antidumping Duty
Administrative Review, 71 FR 10646 (March 2, 2006); Certain Lined
Paper Products from India: Final Results of Antidumping Duty
Administrative Review, 74 FR 17149 (April 14, 2009); Certain Hot-
Rolled Carbon Steel Flat Products from India: Final Results of
Antidumping Duty Review, 73 FR 31961 (June 5, 2008); and Certain
Preserved Mushrooms from India: Final Results of Antidumping Duty
Administrative Review, 72 FR 5268 (February 5, 2007).
---------------------------------------------------------------------------
To value factory overhead, selling, general, and administrative
(``SG&A'') expenses, and profit, the Department used the average of the
audited financial statements of two Indian activated carbon producing
companies; those being, Kalpalka Chemicals Ltd. for FY 2006-2007
(``Kalpalka'') and Quantum Active Carbon Pvt. Ltd. (``Quantum'') for
2007-2008.\34\
---------------------------------------------------------------------------
\34\ The FY 07-08 financial statements for Quantum were
submitted by Huahui on February 24, 2010 and the FY 06-07 financial
statements for Kalpalka Chemicals Ltd. were placed on the record by
the Department. See Prelim Surrogate Value Memo.
---------------------------------------------------------------------------
Petitioners submitted the 2007-2008 financial statements of Core
Carbons Private Limited (``Core Carbons'') and Jacobi submitted the
2008-2009 financial statements of Indo-German Carbon Ltd. (``Indo-
German'') for the Department's use in calculating surrogate financial
ratios. We have determined not to rely on the 2007-2008 financial
statements of Core Carbons and the 2008-2009 financial statements Indo-
German because both sets of financial statements indicate that they
received a ``packing credit'' i.e., Pre-Shipment and Post-Shipment
Export Financing. Core Carbons' financial statements indicate they
received ``working capital from SBI, Cbe Packing Credit'' under
Schedule C.\35\ Indo-German's financial statements indicate they
received ``Packing Credit/Letter of Credit/Cash Credit-State Bank of
India.'' \36\ India's packing credit, Pre-Shipment and Post-Shipment
Export Financing has been found by the Department as a countervailable
subsidy.\37\ Consistent with the Department's practice, we prefer not
to use financial statements of a company we have reason to believe or
suspect may have received subsidies, because financial ratios derived
from that company's financial statements may not constitute the best
available information with which to value financial ratios. See
Freshwater Crawfish Tail Meat from the People's Republic of China:
Notice of Final Results and Rescission, In Part, of 2004/2005
Antidumping Duty Administrative Review and New Shipper Reviews, 72 FR
19174 (April 17, 2007) and accompanying Issues and Decisions Memorandum
at Comment 1. Therefore, pursuant to 19 CFR 351.408(c), the Department
preliminarily determines that the 2007-2008 financial statements of
Quantum and the 2006-2007 financial statements of Kalpalka provide the
best available information with which to calculate surrogate financial
ratios, because they are complete and publicly available. Additionally,
both of these companies produce comparable merchandise and use an
integrated carbonization production process which closely mirrors that
of both respondents. While the Department recognizes Quantum and
Kalpalka's financial statements both pre-date the POR, we prefer to use
more than one financial statement where possible to replicate the
experience of producers of certain activated carbon in the surrogate
country. See Folding Metal Tables and Chairs from the People's Republic
of China: Final Results of Antidumping Duty Administrative Review, 72
FR 71355 (December 17, 2007) and accompanying Issues and Decisions
Memorandum at Comment 1. Moreover, we find that neither company's
financial statements pre-date the POR so significantly as not to be
useful. See Hebei Metals v. United States, 366 F. Supp. 2d 1264, 1275
(Ct. Int'l Trade 2005). Therefore, the Department has used these
financial statements to value factory overhead, SG&A, and profit, for
these preliminary results.
---------------------------------------------------------------------------
\35\ See Annual Report Core Carbons Private Limited 2007-2008,
at 17 contained in Petitioners' February 24, 2010 Surrogate Value
comments at Exhibit 49.
\36\ See Annual Report of Indo-German 2008-2009 contained in
Petitioners' March 8, 2010 Surrogate Value Rebuttal comments at
Exhibit 7.
\37\ See Commodity Matchbooks from India: Final Affirmative
Countervailing Duty Determination, 74 FR 54547 (October 22, 2009)
and accompanying Issues and Decision Memorandum for the Final
Affirmative Countervailing Duty Determination: Commodity Matchbooks
from India at IV.A.3; see also, Polyethylene Terephthalate Film,
Sheet, and Strip from India: Final Results of Countervailing Duty
Administrative Review, 75 FR 6634 (February 10, 2010) and
accompanying Issues and Decision Memorandum at III.A.1.
.
---------------------------------------------------------------------------
Currency Conversion
Where appropriate, the Department made currency conversions into
U.S. dollars, in accordance with section 773A(a) of the Act, based on
the exchange rates in effect on the dates of the U.S. sales, as
certified by the Federal Reserve Bank.
[[Page 26937]]
Preliminary Results of Review
The Department preliminarily determines that the following
weighted-average dumping margins exist:
Certain Activated Carbon from the People's Republic of China
------------------------------------------------------------------------
Weighted average margin
Manufacturer/exporter (percent)
------------------------------------------------------------------------
Jacobi Carbons AB \38\......................... 3.23
Ningxia Huahui Activated Carbon Co., Ltd....... 51.33
Datong Juqiang Activated Carbon Co., Ltd....... 27.28
Datong Municipal Yunguang Activated Carbon Co., 27.28
Ltd...........................................
Jilin Bright Future Chemicals Company, Ltd..... 27.28
Ningxia Guanghua Cherishmet Activated Carbon 27.28
Co., Ltd \39\.................................
Ningxia Mineral & Chemical Limited............. 27.28
Shanxi DMD Corporation......................... 27.28
Shanxi Industry Technology Trading Co., Ltd.... 27.28
Shanxi Qixian Foreign Trade Corporation........ 27.28
Tangshan Solid Carbon Co., Ltd................. 27.28
PRC-Wide Rate \40\............................. 228.11
------------------------------------------------------------------------
\38\ The Department is assigning this rate to Jacobi Carbons AB and
Tianjin Jacobi International Trading Co. Ltd.
\39\ In the previous administrative review, the Department found Beijing
Pacific Activated Carbon Products Co., Ltd., Ningxia Guanghua
Cherishmet Activated Carbon Co., Ltd., and their U.S. affiliate,
Cherishmet Inc. as a single entity and because there were no changes
from the previous review, we will assign this rate to the companies in
the single entity. See Certain Activated Carbon from the People's
Republic of China: Notice of Preliminary Results of the Antidumping
Duty Administrative Review and Extension of Time Limits for the Final
Results, 74 FR 21319, (May 7, 2009), unchanged in First Administrative
Review of Certain Activated Carbon from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 74 FR
57995 (November 10, 2009).
\40\ The PRC-Wide entity includes Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Shanxi Newtime Co., Ltd.,
and United Manufacturing International (Beijing) Ltd.
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within five days of the
date of publication of this notice. See 19 CFR 351.224(b). 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
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 filing case
briefs. See 19 CFR 351.309(d). Parties who submit case briefs or
rebuttal briefs in this proceeding are requested to submit with each
argument: (1) A statement of the issue; (2) a brief summary of the
argument; and (3) a table of authorities. See 19 CFR 351.309(c) and
(d).
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, pursuant to 19
CFR 351.310(c), 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, Room 1117, 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. Id.
Issues raised in the hearing will be limited to those raised in the
respective case and rebuttal briefs. The Department will issue the
final results of this administrative review, including the results of
its analysis of the issues raised in any written briefs, not later than
120 days after the date of publication of this notice, pursuant to
section 751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries
covered by these reviews. The Department intends to issue assessment
instructions to CBP 15 days after the publication date of the final
results of this review excluding any reported sales that entered during
the gap period. In accordance with 19 CFR 351.212(b)(1), we calculated
exporter/importer (or customer)-specific assessment rates for the
merchandise subject to this review. Where the respondent has reported
reliable entered values, we calculated importer (or customer)-specific
ad valorem rates by aggregating the dumping margins calculated for all
U.S. sales to each importer (or customer) and dividing this amount by
the total entered value of the sales to each importer (or customer).
See 19 CFR 351.212(b)(1). Where an importer (or customer)-specific ad
valorem rate is greater than de minimis, we will apply the assessment
rate to the entered value of the importers'/customers' entries during
the POR. See 19 CFR 351.212(b)(1).
Where we do not have entered values for all U.S. sales, we
calculated a per-unit assessment rate by aggregating the antidumping
duties due for all U.S. sales to each importer (or customer) and
dividing this amount by the total quantity sold to that importer (or
customer). See 19 CFR 351.212(b)(1). To determine whether the duty
assessment rates are de minimis, in accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)-
specific ad valorem ratios based on the estimated entered value. Where
an importer (or customer)-specific ad valorem rate is zero or de
minimis, we will instruct CBP to liquidate appropriate entries without
regard to antidumping duties. See 19 CFR 351.106(c)(2).
For the companies receiving a separate rate that were not selected
for individual review, we will calculate an assessment rate based on
the simple
[[Page 26938]]
average of the cash deposit rates calculated for the companies selected
for individual review pursuant to section 735(c)(5)(B) of the Act.
For those companies for which this review has been preliminarily
rescinded, the Department intends to assess antidumping duties at rates
equal to the cash deposit of estimated antidumping duties required at
the time of entry, or withdrawal from warehouse, for consumption, in
accordance with 19 CFR 351.212(c)(2), if the review is rescinded for
these companies. The Department intends to issue appropriate assessment
instructions directly to CBP 15 days after publication of this notice.
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 the exporters
listed above, the cash deposit rate will be established in the final
results of this review (except, if the rate is zero or de minimis,
i.e., less than 0.5 percent, no cash deposit will be required for that
company); (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 separate rate, the cash
deposit rate will be the PRC-wide rate of 228.11 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 also 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 determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Dated: May 7, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-11462 Filed 5-12-10; 8:45 am]
BILLING CODE 3510-DS-P