[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Notices]
[Pages 30377-30380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13071]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-962]
Certain Potassium Phosphate Salts from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value and
Termination of Critical Circumstances Inquiry
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: June 1, 2010.
SUMMARY: On March 16, 2010, the Department of Commerce (the
``Department'') published its notice of preliminary determination of
sales at less than fair value (``LTFV'') in the antidumping
investigation of certain potassium phosphate salts (``salts'') from the
People's Republic of China (``PRC'').\1\ The period of investigation
(``POI'') is January 1, 2009, through June 30, 2009. We invited
interested parties to comment on our preliminary determination of sales
at LTFV. We made no changes for the final determination. We determine
that salts from the PRC are being, or are likely to be, sold in the
United States at LTFV as provided in section 735 of the Tariff Act of
1930, as amended (``the Act''). The estimated margins of sales at LTFV
are shown in the ``Final Determination Margins'' section of this
notice.
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\1\ See Certain Potassium Phosphate Salts from the People's
Republic of China: Preliminary Determination of Sales at Less Than
Fair Value, 75 FR 12508 (March 16, 2010) (``Preliminary
Determination'').
FOR FURTHER INFORMATION CONTACT: Katie Marksberry or Irene Gorelik, AD/
CVD Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-7906
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or (202) 482-6905, respectively.
SUPPLEMENTARY INFORMATION:
Case History
The Department published its Preliminary Determination on March 16,
2010. On April 2, 2010, Petitioners filed an allegation of critical
circumstances.\2\ On April 15, 2010, we received a case brief from
Petitioners. We did not receive any case or rebuttal briefs from any
other interested parties. On May 5, 2010, we published the preliminary
affirmative determination of critical circumstances.\3\ On May 18,
2010, Petitioners withdrew their allegation of critical
circumstances.\4\
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\2\ See Letter from Petitioners to the Department; regarding
Certain Potassium Phosphate Salts from the People's Republic of
China: Allegation of Critical Circumstances; dated April 2, 2010.
\3\ See Certain Potassium Phosphate Salts from the People's
Republic of China: Preliminary Affirmative Determination of Critical
Circumstances in the Antidumping Duty Investigation, 75 FR 24572
(May 5, 2010) (``Prelim Critical Circumstances Determination'').
\4\ See letter to the Department from Petitioners, regarding
Certain Potassium Phosphate Salts from the People's Republic of
China: Withdrawal of Allegation of Critical Circumstances, dated May
18, 2010.
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Tolling of Administrative Deadlines
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. Thus, all
deadlines in this segment of the proceeding have been extended by seven
days. The revised deadline for this final determination is now May 24,
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.
Scope of Investigation
The phosphate salts covered by this investigation include anhydrous
Monopotassium Phosphate (MKP), anhydrous Dipotassium Phosphate (DKP)
and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in
solution (collectively ``phosphate salts'').
TKPP, also known as normal potassium pyrophosphate, Diphosphoric
acid or Tetrapotassium salt, is a potassium salt with the formula
K4P2O7. The CAS registry number for
TKPP is 7320-34-5. TKPP is typically 18.7[percnt] phosphorus and
47.3[percnt] potassium. It is generally greater than or equal to
43.0[percnt] P2O5 content. TKPP is classified
under heading 2835.39.1000, HTSUS.
MKP, also known as Potassium dihydrogen phosphate, KDP, or
Monobasic potassium phosphate, is a potassium salt with the formula
KH2PO4. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7[percnt] phosphorus, 28.7[percnt] potassium
and 52[percnt] P2O5. MKP is classified under
heading 2835.24.0000, HTSUS.
DKP, also known as Dipotassium salt, Dipotassium hydrogen
orthophosphate or Potassium phosphate, dibasic, has a chemical formula
of K2HPO4. The CAS registry number for DKP is
7758-11-4. DKP is typically 17.8[percnt] phosphorus, 44.8[percnt]
potassium and 40[percnt] P2O5 content. DKP is
classified under heading 2835.24.0000, HTSUS.
The products covered by this investigation include the foregoing
phosphate salts in all grades, whether food grade or technical grade.
The product covered by this investigation includes anhydrous MKP and
DKP without regard to the physical form, whether crushed, granule,
powder or fines. Also covered are all forms of TKPP, whether crushed,
granule, powder, fines or solution.
For purposes of the investigation, the narrative description is
dispositive, and not the tariff heading, American Chemical Society, CAS
registry number or CAS name, or the specific percentage chemical
composition identified above.
Comments on the Preliminary Determination
On April 15, 2010, Petitioners submitted a case brief in which they
agreed with the decisions the Department made in the Preliminary
Determination and stated that the Department's use of adverse facts
available (``AFA'') in the Preliminary Determination was warranted and
appropriate. No other interested party commented on the Preliminary
Determination.
[[Page 30378]]
Separate Rates
In proceedings involving non-market-economy (``NME'') countries,
the Department begins with a rebuttable presumption that all companies
within the country are subject to government control and, thus, should
be assigned a single antidumping duty deposit rate. It is the
Department's policy to assign all exporters of merchandise subject to
an investigation 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. See 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 amplified by 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''), and Section 351.107(d) of the Department's regulations.
In the Preliminary Determination, we found that Wenda Co., Ltd.,
Yunnan Newswift Company Ltd., Tianjin Chengyi International Trading
Co., Ltd., and Snow-Apple Group Limited, demonstrated their eligibility
for, and were hence assigned, separate rate status. No party has
commented on the eligibility of these companies for separate rate
status. Therefore, for the final determination, we continue to find
that the evidence placed on the record of this investigation by these
companies demonstrates both a de jure and de facto absence of
government control with respect to their exports of the merchandise
under investigation. Thus, we continue to find that they are eligible
for separate rate status.
Use of Facts Available, Adverse Facts Available and The PRC-Wide Rate
Section 776(a)(2) of the Act provides that if an interested party:
(A) withholds information that has been requested by the Department;
(B) fails to provide such information in a timely manner or in the form
or manner requested, subject to subsections 782(c)(1) and (e) of the
Act; (C) significantly impedes a determination 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 in the requested form and manner, together
with a full explanation and suggested alternative form 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; and (5) the information can
be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the
administering authority finds that an interested party has not acted to
the best of its ability to comply with a request for information, the
administering authority may, in reaching its determination, use an
inference that is adverse to that party. The adverse inference may be
based upon: (1) the petition, (2) a final determination in the
investigation under this title, (3) any previous review under section
751 or determination under section 753, or (4) any other information
placed on the record.
In the Preliminary Determination, the Department found that SiChuan
Blue Sword Import & Export Co., Ltd. (``SiChuan Blue Sword'') did not
respond to our requests for information and was therefore part of the
PRC-wide entity. Additionally, in the Preliminary Determination, the
Department found that SD BNI(LYG) Co. Ltd. (``SD BNI''), who was
selected as a mandatory respondent and failed to submit the information
required, would not receive a separate rate and would remain part of
the PRC-wide entity. In the Preliminary Determination we treated PRC
exporters/producers, that did not respond to the Department's request
for information as part of the PRC-wide entity because they did not
demonstrate that they operate free of government control. No additional
information has been placed on the record with respect to these
entities, SiChuan Blue Sword, or SD BNI after the Preliminary
Determination.
The PRC-wide entity has not provided the Department with the
requested information; therefore, pursuant to section 776(a)(2)(A) of
the Act, the Department continues to find that the use of facts
available is appropriate to determine the PRC-wide rate. As noted
above, section 776(b) of the Act provides that, in selecting from among
the facts otherwise available, the Department may employ an adverse
inference if an interested party fails to cooperate by not acting to
the best of its ability to comply with requests for information. See
Notice of Final Determination of Sales at Less Than Fair Value: Certain
Cold-Rolled Flat-Rolled Carbon-Quality Steel Products from the Russian
Federation, 65 FR 5510, 5518 (February 4, 2000). See also, Statement of
Administrative Action accompanying the URAA, H.R. Rep. No. 103-316,
vol. 1, at 870 (1994) (``SAA''). We find that, because the PRC-wide
entity did not respond to our request for information, it has failed to
cooperate to the best of its ability. Therefore, the Department finds
that, in selecting from among the facts otherwise available, an adverse
inference is appropriate for the PRC-wide entity.
Because we begin with the presumption that all companies within a
NME country are subject to government control and because only the
companies listed under the ``Final Determination Margins'' section
below have overcome that presumption, we are applying a single
antidumping rate - the PRC-wide rate - to all other exporters of
subject merchandise from the PRC. Such companies did not demonstrate
entitlement to a separate rate. See, e.g., Synthetic Indigo from the
People's Republic of China: Notice of Final Determination of Sales at
Less Than Fair Value, 65 FR 25706 (May 3, 2000). The PRC-wide rate
applies to all entries of merchandise under consideration except for
entries from Wenda Co., Ltd., Yunnan Newswift Company Ltd., Tianjin
Chengyi International Trading Co., Ltd., and Snow-Apple Group Limited,
which are listed in the ``Final Determination Margins'' section below.
Corroboration
Section 776(c) of the Act provides that, when the Department relies
on secondary information, rather than on
[[Page 30379]]
information obtained in the course of an investigation as facts
available, it must, to the extent practicable, corroborate that
information from independent sources reasonably at its disposal.
Secondary information is described in the SAA as ``information derived
from the petition that gave rise to the investigation or review, the
final determination concerning subject merchandise, or any previous
review under section 751 concerning the subject merchandise.''\5\ The
SAA provides that to ``corroborate'' means simply that the Department
will satisfy itself that the secondary information to be used has
probative value.\6\ The SAA also states that independent sources used
to corroborate may include, for example, published price lists,
official import statistics and customs data, and information obtained
from interested parties during the particular investigation.\7\ To
corroborate secondary information, the Department will, to the extent
practicable, examine the reliability and relevance of the information
used.\8\
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\5\ See SAA at 870.
\6\ See id.
\7\ See id.
\8\ See Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof, From Japan;
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From Japan, and Tapered Roller
Bearings, Four Inches or Less in Outside Diameter, and Components
Thereof, From Japan; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825 (March
13, 1997).
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As total AFA the Department preliminarily selected the rate of
95.40 from the Petition.\9\ Petitioners' methodology for calculating
the export price and normal value (``NV'') in the Petition is discussed
in the Initiation Notice.\10\ At the Preliminary Determination, because
there were no margins calculated for the mandatory respondents, to
corroborate the 95.40 percent margin used as AFA for the China-wide
entity, to the extent appropriate information was available, we
affirmed our pre-initiation analysis of the adequacy and accuracy of
the information in the petition.\11\ During our pre-initiation
analysis, we examined evidence supporting the calculations in the
petition and the supplemental information provided by Petitioners prior
to initiation to determine the probative value of the margins alleged
in the petition. During our pre-initiation analysis, we examined the
information used as the basis of export price and normal value (``NV'')
in the petition, and the calculations used to derive the alleged
margins. Also during our pre-initiation analysis, we examined
information from various independent sources provided either in the
petition or, based on our requests, in supplements to the petition,
which corroborated key elements of the export price and NV
calculations.\12\
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\9\ See Petition for the Imposition of Antidumping and
Countervailing Duties on Imports of Certain Sodium and Potassium
Phosphate Salts from the People's Republic of China, dated September
24, 2009.
\10\ See Certain Sodium and Potassium Phosphate Salts from the
People's Republic of China: Initiation of Antidumping Duty
Investigation, 74 FR 54024 (October 21, 2009), (``Initiation
Notice'').
\11\ See Antidumping Investigation Initiation Checklist: Certain
Sodium and Potassium Phosphate Salts (``Initiation Checklist'').
\12\ See id.
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Similarly, for the final determination, we have also corroborated
our AFA margin by affirming our pre-initiation analysis. Because no
parties commented on the selection of the PRC-wide rate, we continue to
find that the margin of 95.40 percent has probative value. Accordingly,
we find that the rate of 95.40 percent is corroborated within the
meaning of section 776(c) of the Act.
Critical Circumstances
On April 2, 2010, Petitioners submitted an allegation of critical
circumstances with respect to the merchandise under consideration. On
March 5, 2010, we issued the Preliminary Critical Circumstances
Determination, stating that we had reason to believe or suspect
critical circumstances exist with respect to imports of salts from the
PRC. As noted above, Petitioners withdrew their critical circumstances
allegation on May 18, 2010. Pursuant to this withdrawal, and because
the Department has not ``expended significant resources'' in examining
the allegation,\13\ the Department determines there is no need to make
a critical circumstances determination in this investigation and is
terminating the critical circumstances inquiry. We will instruct U.S.
Customs and Border Protection (``CBP'') to terminate the suspension of
liquidation and refund any cash deposits and release any bond or other
security previously posted for all imports of subject merchandise
entered, or withdrawn from warehouse, for consumption between December
16, 2009, which is 90 days prior to the date of publication of the
Preliminary Determination, and March 15, 2010.
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\13\ See Notice of Final Determination of Sales at Less Than
Fair Value and Termination of Critical- Circumstances Investigation:
Electrolytic Manganese Dioxide from Australia, 73 FR 47586, 47586-87
(August 14, 2008), granting a post-preliminary determination request
to withdraw a critical circumstances allegation.
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Final Determination Margins
We determine that the following percentage weighted-average margins
exist for the following entities for the POI:
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Weighted-
Exporter Supplier Average Margin
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Snow-Apple Group Limited............. Chengdu Long Tai Biotechnology Co., Ltd. 69.58
Tianjin Chengyi International Trading Zhenjiang Dantu Guangming Auxiliary Material Factory 69.58
(Tianjin) Co., Limited..............
Tianjin Chengyi International Trading Sichuan Shifang Hongsheng Chemicals Co., Ltd. 69.58
(Tianjin) Co., Limited..............
Wenda Co., Ltd....................... Thermphos (China) Food Additive Co., Ltd 69.58
Yunnan Newswift Company Ltd.......... Guangxi Yizhou Yisheng Fine Chemicals Co., Ltd. 69.58
Yunnan Newswift Company Ltd.......... Mainzhu Hanwang Mineral Salt Chemical Co., Ltd. 69.58
Yunnan Newswift Company Ltd.......... Sichuan Shengfeng Phosphate Chemical Co., Ltd. 69.58
PRC-Wide\14\......................... ........................................................ 95.40
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\14\ The PRC-wide rate includes Sichuan Blue Sword Import and Export Co., Ltd., and SD BNI (LYG) Co., Ltd.
[[Page 30380]]
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are
directing CBP to continue to suspend liquidation of all imports of
subject merchandise entered or withdrawn from warehouse, for
consumption for the PRC-wide entity and the Separate Rate Recipients on
or after March 16, 2010. We will instruct CBP to continue to require a
cash deposit or the posting of a bond for all companies based on the
estimated weighted-average dumping margins shown above.
These suspension of liquidation instructions will remain in effect
until further notice.
ITC Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (``ITC'') of our final determination of
sales at LTFV. As our final determination is affirmative, in accordance
with section 735(b)(2) of the Act, within 45 days the ITC will
determine whether the domestic industry in the United States is
materially injured, or threatened with material injury, by reason of
imports or sales (or the likelihood of sales) for importation of the
merchandise under investigation. If the ITC determines that material
injury or threat of material injury does not exist, the proceeding will
be terminated and all securities posted will be refunded or canceled.
If the ITC determines that such injury does exist, the Department will
issue an antidumping duty order directing CBP to assess antidumping
duties on all imports of the merchandise under investigation entered,
or withdrawn from warehouse, for consumption on or after the effective
date of the suspension of liquidation.
Notification Regarding APO
This notice also serves as a reminder to the parties subject to
administrative protective order (``APO'') of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305. Timely notification of return or
destruction of APO materials or conversion to judicial protective order
is hereby requested. Failure to comply with the regulations and the
terms of an APO is a sanctionable violation.
This determination and notice are issued and published in
accordance with sections 735(d) and 777(i)(1) of the Act.
Dated: May 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-13071 Filed 5-28-10; 8:45 am]
BILLING CODE 3510-DS-S