[Federal Register Volume 75, Number 93 (Friday, May 14, 2010)]
[Notices]
[Pages 27302-27308]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11605]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-898]
Chlorinated Isocyanurates From the People's Republic of China:
Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from interested parties, the
Department of Commerce (``the Department'') is conducting an
administrative review of the antidumping duty order on chlorinated
isocyanurates (``chlorinated isos'') from the People's Republic of
China (``PRC''). The period of review (``POR'') for this administrative
review is June 1, 2008, through May 31, 2009. Because the Department is
rescinding the review of Zhucheng Taisheng Chemical Co., Ltd.
(``Zhucheng''), this administrative review only covers one producer/
exporter of the subject merchandise, i.e., Hebei Jiheng Chemical Co.,
Ltd. (``Jiheng'').
We preliminarily determine that Jiheng made sales in the United
States at prices below normal value (``NV''). If these preliminary
results are adopted in
[[Page 27303]]
our final results of review, we will instruct U.S. Customs and Border
Protection (``CBP'') to assess antidumping duties on entries of subject
merchandise during the POR for which the importer-specific assessment
rates are above de minimis. We invite interested parties to comment on
these preliminary results.
DATES: Effective Date: May 14, 2010.
FOR FURTHER INFORMATION CONTACT: Brandon Petelin or Charles Riggle, AD/
CVD Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
8173 or (202) 482-0650, respectively.
SUPPLEMENTARY INFORMATION:
Background
On June 24, 2005, the Department published in the Federal Register
the antidumping duty order on chlorinated isos from the PRC.\1\ On June
1, 2009, the Department published in the Federal Register a notice of
opportunity to request an administrative review of the antidumping duty
order on chlorinated isos from the PRC for the period June 1, 2008,
through May 31, 2009.\2\ On June 29, 2009, in accordance with 19 CFR
351.213(b)(2), Zhucheng, a foreign producer/exporter of subject
merchandise, requested that the Department review its sales of subject
merchandise. On June 30, 2009, in accordance with 19 CFR 351.213(b)(2),
Jiheng, a foreign producer/exporter of subject merchandise, requested
that the Department review its sales of subject merchandise.
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\1\ See Notice of Antidumping Duty Order: Chlorinated
Isocyanurates From the People's Republic of China, 70 FR 36561 (June
24, 2005).
\2\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative
Review, 74 FR 26202 (June 1, 2009).
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On July 29, 2009, the Department initiated the administrative
review of the antidumping duty order on chlorinated isos from the PRC
covering the period June 1, 2008, through May 31, 2009.\3\ On August 4,
2009, the Department issued its antidumping duty questionnaire to both
Jiheng and Zhucheng. However, on October 7, 2009, because the
Department determined that Zhucheng did not have standing to request an
administrative review, the Department issued a Federal Register Notice
stating that it intended to rescind the administrative review with
respect to Zhucheng.\4\ On August 17, 2009, Clearon Corporation and
Occidental Chemical Corporation, domestic producers of chlorinated isos
(collectively ``Petitioners''), submitted an entry of appearance in the
underlying administrative review.
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\3\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Deferral of Administrative Review 74 FR
37690 (July 29, 2009) (``Initiation Notice'').
\4\ See Chlorinated Isocyanurates from the People's Republic of
China, Notice of Intent to Partially Rescind Administrative Review,
74 FR 51557 (October 7, 2009).
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On September 8, 2009, Jiheng submitted its section A questionnaire
response (``AQR''). On September 23, 2009, Jiheng submitted its
sections C and D questionnaire responses (``CQR and DQR'',
respectively). On December 16, 2009, the Department issued a
supplemental questionnaire to Jiheng. On January 7, 2010, Jiheng
submitted its supplemental questionnaire response (``1st SQR''). On
March 16, 2010, the Department issued a second supplemental
questionnaire to Jiheng. On March 26, 2010, Jiheng submitted its second
supplemental questionnaire response (``2nd SQR'').
On January 5, 2010, the Department requested that the Office of
Policy provide a list of surrogate countries for this review, which it
did on January 25, 2010.\5\ On January 26, 2010, the Department issued
a letter to interested parties seeking comments on surrogate country
selection and surrogate values. On February 12, 2010, in the memorandum
regarding ``Tolling of Administrative Deadlines as a Result of the
Government Closure During the Recent Snowstorm'' from the Deputy
Assistant Secretary for Import Administration, dated February 12, 2010,
the Department exercised its discretion to toll deadlines for the
duration of the partial shutdown of the Federal Government from
February 5 through February 11, 2010.\6\ Thus, all deadlines in this
segment of the proceeding were extended by 7 days.
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\5\ See Memorandum regarding: Request for Surrogate-Country
Selection: 2008-2009 Administrative Review of the Antidumping Duty
Order on Chlorinated Isocyanurates from the People's Republic of
China, dated January 5, 2010; see also Memorandum regarding: Request
for a List of Surrogate Countries for an Administrative Review of
the Antidumping Duty Order on Chlorinated Isocyanurates from the
People's Republic of China, dated January 25, 2010 (``Surrogate
Country List'').
\6\ See Memorandum regarding: Tolling of Administrative
Deadlines as a Result of the Government Closure During the Recent
Snow Storm, dated February 12, 2010.
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On February 12, 2010, Jiheng submitted comments regarding the
selection of a surrogate country. On February 16, 2010, Jiheng
submitted publicly available information in order to value Jiheng's
factors of production (``FOPs''). Also, on February 16, 2010, Arch
Chemicals, Inc. (``Arch''), a United States importer of subject
merchandise from Jiheng, submitted surrogate value information from
Chemical Weekly for certain chemicals used in Jiheng's production of
the subject merchandise. On February 23, 2010, Petitioners submitted
publicly available information to value certain FOPs. On March 1, 2010,
the Department published a notice in the Federal Register extending the
time limit for the preliminary results of review until May 10, 2010.\7\
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\7\ See Chlorinated Isocyanurates From the People's Republic of
China: Notice of Extension of Time Limit for the Preliminary Results
of the Antidumping Duty Administration Review, 75 FR 9160 (March 1,
2010).
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Scope of the Order
The products covered by this order are chlorinated isos, which are
derivatives of cyanuric acid, described as chlorinated s-triazine
triones. There are three primary chemical compositions of chlorinated
isos: (1) Trichloroisocyanuric acid (Cl3(NCO)3),
(2) sodium dichloroisocyanurate (dihydrate)
(NaCl2(NCO)3(2H2O)), and (3) sodium
dichloroisocyanurate (anhydrous) (NaCl2(NCO)3).
Chlorinated isos are available in powder, granular, and tableted forms.
This order covers all chlorinated isos. Chlorinated isos are currently
classifiable under subheadings 2933.69.6015, 2933.69.6021,
2933.69.6050, 3808.40.50, 3808.50.40 and 3808.94.50.00 of the
Harmonized Tariff Schedule of the United States (``HTSUS''). The tariff
classification 2933.69.6015 covers sodium dichloroisocyanurates
(anhydrous and dihydrate forms) and trichloroisocyanuric acid. The
tariff classifications 2933.69.6021 and 2933.69.6050 represent basket
categories that include chlorinated isos and other compounds including
an unfused triazine ring. Although the HTSUS subheadings are provided
for convenience and customs purposes, the written description of the
scope of this order is dispositive.
On April 9, 2008, the Department issued a final scope ruling
stating that Chinese-origin chlorinated isos imported into Canada from
the PRC by Capo Industries, Ltd., which are then processed and exported
by Capo to the United States, are within the scope of the antidumping
duty order covering chlorinated isos from the PRC. The Department found
that Capo's processing in Canada is essentially a repackaging operation
with respect to Chinese-origin product and does not substantially
transform the chlorinated isos imported from the PRC by Capo.
[[Page 27304]]
On March 23, 2009, the Department issued a final scope ruling
stating that chlorinated isos produced and exported from Vietnam by
Tian Hua (Vietnam) SPC Industries Ltd. are not within the scope of the
antidumping duty order covering chlorinated isos from the PRC because
Tian Hua demonstrated on the record of the scope inquiry that it
produces chlorinated isos in its production facilities in Vietnam.
Partial Rescission of Review
The Department is hereby rescinding the administrative review with
respect to Zhucheng, covering the period of June 1, 2008, through May
31, 2009. The Department's regulations at 19 CFR 351.213(b)(2) state
that an exporter or producer covered by an antidumping order may
request that the Department conduct an administrative review of only
that party during the anniversary month of the publication of an
antidumping order. On June 29, 2009, pursuant to 19 CFR 351.213(b)(2),
Zhucheng submitted a timely request for an administrative review of the
antidumping duty order on chlorinated isos from the PRC purporting to
be a producer and exporter of subject merchandise. In a letter dated
August 24, 2009, however, Zhucheng explained that, in the process of
preparing its section A questionnaire response for this review, it
discovered that the actual producer and exporter of the subject
merchandise was Zhucheng Taisheng Angmu Chemical Co., Ltd., with whom
Zhucheng claims to be affiliated.\8\ Therefore, because Zhucheng
requested a review as a producer/exporter but was neither a producer
nor an exporter of the subject merchandise during the POR, Zhucheng is
not entitled to request an administrative review pursuant to 19 CFR
351.213(b)(2).
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\8\ See Letter from Zhucheng Taisheng, ``Chlorinated
Isocyanurates from China; Inquiry Regarding Status of Administrative
Review'' (August 24, 2009) (``Inquiry Regarding Status of
Administrative Review'').
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Because Zhucheng did not have standing to request an administrative
review, the Department previously issued a Federal Register Notice of
its intent to partially rescind the review with respect to Zhucheng, as
the Department had initiated a review of Zhucheng in error.\9\ Thus,
the Department hereby rescinds the administrative review with respect
to Zhucheng for the period June 1, 2008, through May 31, 2009.
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\9\ See Clorinated Isos/PRC 10/7/2009.
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Non-Market Economy Country
The Department has treated the PRC as a non-market economy
(``NME'') country in all past antidumping duty investigations and
administrative reviews and continues to do so in this review.\10\ No
interested party in this case has argued that we should do otherwise.
Designation as an NME country remains in effect until it is revoked by
the Department. See section 771(18)(C)(i) of the Tariff Act of 1930, as
amended (the ``Act''). Accordingly, we calculated normal value (``NV'')
in accordance with section 773(c) of the Act, which applies to NME
countries.
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\10\ See, e.g., Chlorinated Isocyanurates from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 73 FR 52645 (September 10, 2008); see also Folding Metal
Tables and Chairs from the People's Republic of China: Final Results
of Antidumping Duty Administrative Review, 74 FR 3560 (January 21,
2009).
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Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it, in most instances, to base NV
on the NME producer's FOPs. The Act further instructs that valuation of
the FOPs shall be based on the best available information in the
surrogate market economy country or countries considered to be
appropriate by the Department. See section 773(c)(1) of the Act. When
valuing the FOPs, the Department shall utilize, to the extent possible,
the prices or costs of FOPs in one or more market economy countries
that are: (1) At a level of economic development comparable to that of
the NME country; and (2) significant producers of comparable
merchandise. See section 773(c)(4) of the Act. Further, the Department
normally values all FOPs in a single surrogate country. See 19 CFR
351.408(c)(2). The sources of the surrogate factor values are discussed
under the ``Normal Value'' section below and in the Surrogate Value
Memorandum, which is on file in the Central Records Unit (``CRU''),
Room 1117 of the main Commerce Department building.\11\
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\11\ See Memorandum regarding: 2008-2009 Administrative Review
of Chlorinated Isocyanurates from the People's Republic of China:
Surrogate Value Memorandum for the Preliminary Results, dated May
10, 2010 (``Surrogate Value Memorandum'').
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In examining which country to select as its primary surrogate for
this proceeding, the Department determined that India, Indonesia, the
Philippines, Ukraine, Thailand, and Peru are countries comparable to
the PRC in terms of economic development. See Surrogate Country List.
On January 26, 2010, the Department issued a request for interested
parties to submit comments on surrogate country selection. On February
12, 2010, Jiheng submitted comments regarding the selection of a
surrogate country. On February 23, 2010, Petitioners submitted FOP
surrogate value information that included several values obtained from
India.
Jiheng argues that the Department should continue to use India as
the surrogate country for this segment of the proceeding, as it has in
previous segments, because, in this case, India produces comparable
merchandise and there are publicly available data with which to value
the reported FOP information. All parties which submitted surrogate
value data submitted only Indian-sourced data.
After evaluating interested parties' comments, the Department
determined that India is the appropriate surrogate country for this
review. The Department based its decision on the following facts: (1)
India is at a level of economic development comparable to that of the
PRC; (2) India is a significant producer of comparable merchandise,
i.e., calcium hypochlorite; and (3) India provides the best opportunity
to use reliable, publicly available data to value the FOPs. On the
record of this review, we have usable surrogate financial data from
India, but no such surrogate financial data from any other potential
surrogate country. Additionally, all of the data submitted by both
Jiheng and the Petitioners for our consideration as potential surrogate
values are sourced from India.
Therefore, because India best represents the experience of
producers of comparable merchandise operating in a surrogate country,
we have selected India as the surrogate country and accordingly have
calculated NV using Indian prices to value the respondents' FOPs, when
available and appropriate. See Surrogate Value Memorandum. We have
obtained and relied upon publicly available information wherever
possible.
In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may
submit publicly available information to value FOPs until 20 days after
the date of publication of the preliminary results.\12\
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\12\ In accordance with 19 CFR 351.301(c)(1), for the final
results of this administrative review, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information placed on the record. The
Department generally will not accept the submission of additional,
previously absent-from-the-record alternative surrogate value
information pursuant to 19 CFR 351.301(c)(1). See Glycine from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and Decision Memorandum
at Comment 2.
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[[Page 27305]]
Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of merchandise subject to review in an NME country this
single rate unless an exporter can demonstrate that it is sufficiently
independent so as to be entitled to a separate rate. Exporters can
demonstrate this independence through the absence of both de jure and
de facto government control over export activities. 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 country, then a
separate-rate analysis is not necessary to determine whether it is
independent from government control.
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) other formal
measures by the government decentralizing control of companies. See
Sparklers at 20589.
The evidence provided by Jiheng 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 Jiheng's AQR at Exhibit A3.1 through Exhibit A5.
Absence of De Facto Control
Typically, the Department considers four factors in evaluating
whether each respondent is subject to de facto 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 placed on the record of this administrative review by
Jiheng demonstrates an absence of de facto government control with
respect to Jiheng's exports of the merchandise under review, in
accordance with the criteria identified in Sparklers and Silicon
Carbide. See Jiheng's AQR at pages A-12 through A-18.
Date of Sale
19 CFR 351.401(i) states that:
In identifying the date of sale of the subject merchandise or
foreign like product, the Secretary normally will use the date of
invoice, as recorded in the exporter or producer's records kept in
the normal course of business. However, the Secretary may use a date
other than the date of invoice if the Secretary is satisfied that a
different date better reflects the date on which the exporter or
producer establishes the material terms of sale.
Jiheng reported the shipment date as the date of sale because it
claims that, for its U.S. sales of subject merchandise made during the
POR, the material terms of sale were established on the shipment date,
and for many of its sales the shipment date occurs on or before the
invoice date. Jiheng also stated that selecting the shipment date as
the date of sale insures a consistent methodology for selecting the
date of sale with previous segments in which Jiheng has participated.
We have preliminarily determined that the shipment date is the most
appropriate date to use as Jiheng's date of sale in accordance with our
long-standing practice of determining the date of sale as the date on
which the final terms of sale are established.\13\ Evidence on the
record demonstrates that, with respect to Jiheng's sales to the United
States, sometimes the shipment date occurs prior to the invoice
date,\14\ and it is the Department's practice to use shipment date as
the date of sale when the shipment date occurs prior to the invoice
date.\15\ Though not a dispositive factor for this POR, we note that we
used the shipment date as the sale date in the prior POR.\16\
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\13\ See 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; and Notice of Final
Determination of Sales at Less Than Fair Value: Structural Steel
Beams from Germany, 67 FR 35497 (May 20, 2002), and accompanying
Issues and Decision Memorandum at Comment 2.
\14\ See Jiheng's CQR at page C-15.
\15\ See, e.g., Notice of Final Determinations of Sales at Less
Than Fair Value: Certain Durum Wheat and Hard Red Spring Wheat from
Canada, 68 FR 52741 (September 5, 2003), and accompanying Issues and
Decision Memorandum at Comment 3.
\16\ See Chlorinated Isocyanurates from the People's Republic of
China: Preliminary Results of Antidumping Duty Administrative
Review, 74 FR 27104 (June 8, 2009) (unchanged in Chlorinated
Isocyanurates from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 74 FR 66087 (December 14,
2009)).
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Fair Value Comparisons
To determine whether sales of chlorinated isos to the United States
by Jiheng were made at less than NV, we compared export price (``EP'')
to NV, as described in the ``Export Price'' and ``Normal Value''
sections of this notice, pursuant to section 771(35) of the Act.
Export Price
Jiheng sold the subject merchandise directly to unaffiliated
purchasers in the United States prior to importation into the United
States. Therefore, we have used EP in accordance with section 772(a) of
the Act because the use of the constructed export price methodology is
not otherwise indicated. We calculated EP based on the price, including
the appropriate shipping terms, to the first unaffiliated purchasers
reported by Jiheng. To this price, we added amounts for components that
were supplied free of charge or reimbursed by the customer, where
applicable, pursuant to section 772(c)(1)(A) of the Act.\17\
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\17\ See Memorandum regarding: Analysis for the Preliminary
Results of the 2008-2009 Administrative Review of Chlorinated
Isocyanurates from the People's Republic of China: Hebei Jiheng
Chemical Company Ltd. (May 10, 2010) (``Jiheng's Preliminary
Analysis Memorandum'').
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[[Page 27306]]
Jiheng reported that its U.S. customer(s) provided it with certain
raw materials and packing materials free of charge. For Jiheng's
products that contained inputs provided free of charge by a
customer,\18\ we added to the U.S. price paid by Jiheng's customer the
built-up cost (i.e., the surrogate value for these raw materials and
packing materials multiplied by the reported FOPs for these items).\19\
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\18\ Jiheng stated that its customer sourced materials from both
market-economy and NME suppliers. Jiheng further stated that it does
not know the names of the market-economy suppliers. See Jiheng's DQR
at page D-8.
\19\ See, e.g., 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 (September 8, 2006), and accompanying Issues and Decision
Memorandum at Comment 17.
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Normal Value
Section 773(c)(1) of the Act provides that, in the case of an NME,
the Department shall determine NV using an 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 will base NV on FOPs in NMEs because the presence of
government controls on various aspects of these economies renders price
comparisons and the calculation of production costs invalid under our
normal methodologies. Therefore, we calculated NV based on FOPs in
accordance with sections 773(c)(3) and (4) of the Act and 19 CFR
351.408(c). The FOPs include: (1) Hours of labor required; (2)
quantities of raw materials employed; (3) amounts of energy and other
utilities consumed; and (4) representative capital costs. We used the
FOPs reported by the respondent for materials, energy, labor, by-
products, and packing. These reported FOPs included various FOPs
provided free of charge by a customer as discussed in the ``Export
Price'' section, above.
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 market-economy currency, the Department may value the factor
using the actual price paid for the input.\20\ Jiheng reported that it
did not purchase any inputs from market economy suppliers for the
production of the subject merchandise. See Jiheng's DQR at page D-9.
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\20\ See 19 CFR 351.408(c)(1); see also Shakeproof Assembly
Components Div. of Ill v. United States, 268 F.3d 1376, 1382-1383
(Fed. Cir. 2001) (affirming the Department's use of market-based
prices to value certain FOPs).
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With regard to the Indian import-based surrogate values, we have
disregarded prices that we have reason to believe or suspect may be
subsidized, such as those from Indonesia, South Korea, and Thailand. We
have 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.\21\ We are 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
H.R. Rep. No. 100-576 (1988), at 590. Rather, the Department was
instructed by Congress to base its decision on information that is
available to it at the time it is making its determination. Therefore,
we have not used prices from these countries in calculating the Indian
import-based surrogate values. Additionally, we disregarded prices from
NME countries. Finally, imports that were labeled as originating from
an ``unspecified'' country were excluded from the average value,
because the Department could not be certain that they were not from
either an NME country or a country with general export subsidies.
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\21\ See, e.g., Frontseating Service Valves from the People's
Republic of China; Preliminary Determination of Sales at Less Than
Fair Value, Preliminary Negative Determination of Critical
Circumstances, and Postponement of Final Determination, 73 FR 62952
(October 22, 2008) (unchanged in Frontseating Service Valves from
the People's Republic of China: Final Determination of Sales at Less
Than Fair Value and Final Negative Determination of Critical
Circumstances, 74 FR 10886 (March 13, 2009); and China National
Machinery Import & Export Corporation v. United States, 293 F. Supp.
2d 1334 (CIT 2003), affirmed 104 Fed. Appx. 183 (Fed. Cir. 2004).
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Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on the FOPs reported by Jiheng for the POR. To calculate NV, we
multiplied the reported per-unit factor quantities by publicly
available Indian surrogate values (except as noted below). In selecting
the surrogate values, we selected, where possible, publicly available
data, which represent an average non-export value and are
contemporaneous with the POR, product-specific, and tax-exclusive. As
appropriate, we adjusted input prices by including freight costs to
render them delivered prices. Specifically, we 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 U.S. Court of Appeals for 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 Jiheng, see the Surrogate Value Memorandum.
Except as noted below, we valued raw material inputs using the
weighted-average unit import values derived from the Monthly Statistics
of the Foreign Trade of India, as published by the Directorate General
of Commercial Intelligence and Statistics of the Ministry of Commerce
and Industry, Government of India in the World Trade Atlas, available
at http://www.gtis.com/wta.htm (``WTA''). Where we could not obtain
publicly available information contemporaneous with the POR with which
to value FOPs, we 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. See Surrogate Value Memorandum. We further adjusted these prices
to account for freight costs incurred between the supplier and
respondent.
To value truck freight, we used the freight rates published by
http://www.infobanc.com, ``The Great Indian Bazaar, Gateway to Overseas
Markets.'' The logistics section of the website contains inland freight
truck rates between many large Indian cities. The truck freight rates
are for the period August 2008 through May 2009 and, therefore, are
contemporaneous with the POR. See Surrogate Value Memorandum.
The Department valued brokerage and handling using a simple average
of the brokerage and handling costs that were reported in public
submissions that were filed in three antidumping duty cases.
Specifically, we 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 adjusted the average
brokerage and handling rate for inflation. See Surrogate Value
Memorandum.
[[Page 27307]]
To value calcium chloride, barium chloride, zinc sulfate, and
sulfuric acid, we used Chemical Weekly data. We adjusted these values
for taxes and to account for freight costs incurred between the
supplier and the respondent.
Jiheng reported that its U.S. customer(s) provided certain raw
materials and packing materials free of charge. For Jiheng's products
that included raw materials and packing materials provided free of
charge by its customer, consistent with the Department's practice and
section 773(c)(1)(B) of the Act, we used the built-up cost (i.e., the
surrogate value for these raw materials and packing materials
multiplied by the reported FOPs for these items) in the NV
calculation.\22\ Where applicable, we also adjusted these values to
account for freight costs incurred between the port of exit and
Jiheng's plants. See Surrogate Value Memorandum, and Jiheng's
Preliminary Analysis Memorandum.
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\22\ See, e.g., 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 (September 8, 2006), and accompanying Issues and Decision
Memorandum at Comment 17.
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To value electricity, we used price data for small, medium, and
large industries, as published by the Central Electricity Authority of
the Government of India in its publication entitled ``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. See Surrogate Value Memorandum.
To value water, we used the Maharashtra Industrial Development
Corporation (``MIDC'') water rates available at http://www.midcindia.com/water-supply. See Surrogate Value Memorandum.
To value steam coal, we used data obtained for grades B and C coal
reported in the December 2007 Coal India Limited Circular. See
Surrogate Value Memorandum.
To value steam, we used data obtained from the Indian financial
statements of Hindalco Industries Limited. See Surrogate Value
Memorandum.
Jiheng reported chlorine, hydrogen gas, ammonia gas, and sulfuric
acid as by-products in the production of subject merchandise. We find
in this administrative review that Jiheng has appropriately reported
its by-products and, therefore, we have granted Jiheng a by-product
offset for the quantities of these reported by-products. We valued
chlorine gas with POR data obtained from the financial statements of
Bihar Caustic & Chemicals, Kanoria Chemicals & Industries Limited, DCM
Shriram Consolidated Ltd., all of which are Indian producers and
sellers of chlorine gas. We valued hydrogen gas with POR data obtained
from the financial statements of Bihar Caustic & Chemicals and DCM
Shriram Consolidated Ltd., both of which are Indian producers and
sellers of hydrogen gas. See Surrogate Value Memorandum.
For direct labor, indirect labor, and packing labor, consistent
with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate
as reported on Import Administration's Web site.\23\ Because this
regression-based wage rate does not separate the labor rates into
different skill levels or types of labor, we have applied the same wage
rate to all skill levels and types of labor reported by Jiheng. See
Surrogate Value Memorandum.
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\23\ See Expected Wages of Selected NME Countries (December 9,
2009), available at http://ia.ita.doc.gov/wages; see also, 2009
Calculation of Expected Non-Market Economy Wages, 74 FR 65092
(December 9, 2009). The source of these wage rate data on the Import
Administration's web site is the Yearbook of Labour Statistics, ILO,
(Geneva), Chapter 5B: Wages in Manufacturing. The years of the
reported wage rates range from 2006 to 2007.
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For packing materials, we used the per-kilogram values obtained
from the WTA and made adjustments to account for freight costs incurred
between the PRC supplier and Jiheng's plants. See Surrogate Value
Memorandum.
To calculate surrogate values for factory overhead, selling,
general, and administrative expenses (``SG&A''), and profit for the
preliminary results, we used financial information from both Kanoria
Chemicals and Industries Limited (``Kanoria'') and Aditya Birla
Chemicals (India) Limited (``Aditya'') for the year ending March 31,
2009. From this information, we were able to determine average factory
overhead as a percentage of the total raw materials, labor, and energy
(``ML&E'') costs, average SG&A as a percentage of ML&E plus overhead
(i.e., cost of manufacture), and an average profit rate as a percentage
of the cost of manufacture plus SG&A. See Surrogate Value Memorandum
for a full discussion of the calculation of these ratios.
Currency Conversion
Where the factor valuations were reported in a currency other than
U.S. dollars, in accordance with section 773A(a) of the Act, we made
currency conversions into U.S. dollars based on the exchange rates in
effect on the dates of the U.S. sales, as certified by the Federal
Reserve Bank.
Preliminary Results
We preliminarily determine that the following weighted-average
dumping margin exists:
------------------------------------------------------------------------
Margin
Manufacturer/exporter (percent)
------------------------------------------------------------------------
Hebei Jiheng Chemical Co., Ltd.............................. 11.65
------------------------------------------------------------------------
Disclosure
We will disclose the calculations used in our analysis to parties
to this proceeding within five days of the publication date of this
notice. See 19 CFR 351.224(b). Interested parties are invited to
comment on the preliminary results and may submit case briefs and/or
written comments within 30 days of the date of publication of this
notice. 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 time limit for filing
the case briefs. See 19 CFR 351.309(d). The Department requests that
parties submitting written comments provide an executive summary and a
table of authorities as well as an additional copy of those comments
electronically.
Any interested party may request a hearing within 30 days of
publication of this notice. See 19 CFR 351.310(c). Hearing requests
should contain the following information: (1) The party's name,
address, and telephone number; (2) the number of participants; and (3)
a list of the issues to be discussed. Oral presentations will be
limited to issues raised in the briefs. If a request for a hearing is
made, parties will be notified of the time and date for the hearing to
be held at the U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230. See 19 CFR 351.310(d).
The Department intends to issue the final results of this
administrative review, which will include the results of its analysis
of issues raised in any such comments, within 120 days of publication
of these preliminary results, 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 this review. The Department intends to issue assessment
instructions to CBP 15 days
[[Page 27308]]
after the publication date of the final results of this review. In
accordance with 19 CFR 351.212(b)(1), we will calculate 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).
Cash Deposit Requirements
Further, 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 Jiheng, the
cash deposit rate will be the company-specific rate established in the
final results of review (except, if the rate is zero or de minimis, a
zero cash deposit will be required); (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 that have not been found to be entitled to a
separate rate, the cash deposit rate will be the PRC-wide rate of
285.63 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 exporter(s) 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.
These preliminary results are issued and published in accordance
with sections 751(a)(1) and 777(i)(1) of the Act.
Dated: May 10, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-11605 Filed 5-13-10; 8:45 am]
BILLING CODE 3510-DS-P