[Federal Register Volume 75, Number 190 (Friday, October 1, 2010)]
[Notices]
[Pages 60725-60730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24720]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-964]
Seamless Refined Copper Pipe and Tube From the People's Republic
of China: Final Determination of Sales at Less Than Fair Value
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: October 1, 2010.
SUMMARY: On May 12, 2010, the Department of Commerce (the
``Department'') published its preliminary determination of sales at
less than fair value (``LTFV'') in the antidumping duty investigation
of seamless refined copper pipe and tube (``copper pipe and tube'')
from the People's Republic of China (``PRC'').\1\ The Department
invited interested parties to comment on the Preliminary Determination.
Based on the Department's analysis of the comments received, the
Department has made changes from the Preliminary Determination. The
Department determines that copper pipe and tube from the PRC is being,
or is 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
final dumping margins for this investigation are listed in the ``Final
Determination'' section below.
---------------------------------------------------------------------------
\1\ See Seamless Refined Copper Pipe and Tube from the People's
Republic of China: Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination, 75 FR 26716 (May
12, 2010) (``Preliminary Determination'').
FOR FURTHER INFORMATION CONTACT: Karine Gziryan or Shawn Higgins, AD/
CVD Operations, Office 4, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
---------------------------------------------------------------------------
4081 and (202) 482-0679, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department published its Preliminary Determination of sales at
LTFV and postponement of the final determination on May 12, 2010.
Between May 24, 2010, and June 1, 2010, the Department conducted
verification of mandatory respondents Golden Dragon Precise Copper Tube
Group, Inc. (``Golden Dragon'') and Zhejiang Hailiang Co., Ltd.,
Shanghai Hailiang Copper Co., Ltd., and Hong Kong Hailiang Metal
Trading Limited (collectively, the ``Hailiang Group'').\2\
---------------------------------------------------------------------------
\2\ See the ``Verification'' section below.
---------------------------------------------------------------------------
Cerro Flow Products, Inc., KobeWieland Copper Products, LLC,
Mueller Copper Tube Company, Inc. (collectively, ``Petitioners''),
Golden Dragon, and the Hailiang Group submitted case briefs on July 2,
2010.\3\ On July 9, 2010, Petitioners, Golden Dragon, and the Hailiang
Group filed rebuttal briefs.\4\ The Department conducted a public
hearing on August 4, 2010.
---------------------------------------------------------------------------
\3\ See Letter from Petitioners to the Secretary of Commerce,
``Seamless Refined Copper Pipe and Tube from the People's Republic
of China; Investigation; Case Brief of Petitioners'' (July 2, 2010);
Letter from Golden Dragon to the Secretary of Commerce, ``Seamless
Refined Copper Pipe and Tube from the People's Republic of China''
(July 2, 2010); Letter from the Hailiang Group to the Secretary of
Commerce, ``Seamless Refined Copper Pipe & Tube from the People's
Republic of China: The Hailiang Group--Administrative Case Brief''
(July 2, 2010).
\4\ See Letter from Petitioners to the Secretary of Commerce,
``Seamless Refined Copper Pipe and Tube from the People's Republic
of China; Investigation; Rebuttal Brief of Petitioners'' (July 9,
2010); Letter from Golden Dragon to the Secretary of Commerce,
``Seamless Refined Copper Pipe and Tube from the People's Republic
of China'' (July 9, 2010); Letter from the Hailiang Group to the
Secretary of Commerce, ``Seamless Refined Copper Pipe & Tube from
the People's Republic of China: Rebuttal Brief of the Hailiang
Group'' (July 9, 2010).
---------------------------------------------------------------------------
On August 3, 2010, the Department notified parties that as a result
of the recent decision in Dorbest Ltd. v. United States, 604 F.3d 1363
(Fed. Cir. 2010) (``Dorbest''), issued by the United States Court of
Appeals for the Federal Circuit (``CAFC'') on May 14, 2010, the
Department would be reconsidering its valuation of the labor wage rate
in this investigation. The Department placed export data on the record
of the investigation and gave parties an opportunity to comment on the
narrow issue of the labor wage value in light of the CAFC's
decision.\5\ On August 9, 2010, Petitioners and Golden Dragon submitted
comments regarding the wage rate issue.\6\
---------------------------------------------------------------------------
\5\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, ``Antidumping Duty
Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Wage Data'' (August 3, 2010).
\6\ See Letter from Petitioners to the Secretary of Commerce,
``Seamless Refined Copper Pipe and Tube from China; Petitioners'
Comments on the Surrogate Value for Labor'' (August 9, 2010); Letter
from Golden Dragon to the Secretary of Commerce, ``Seamless Refined
Copper Pipe and Tube from the People's Republic of China: Golden
Dragon Precise Copper Tube Group, Inc.'' (August 9, 2010).
---------------------------------------------------------------------------
Period of Investigation
The period of investigation (``POI'') is January 1, 2009, through
June 30, 2009. This period corresponds to the two most recent fiscal
quarters prior to the month
[[Page 60726]]
of the filing of the petition (i.e., September, 2009).\7\
---------------------------------------------------------------------------
\7\ See 19 CFR 351.204(b)(1).
---------------------------------------------------------------------------
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this investigation, as well as comments received pursuant to the
Department's requests, are addressed in the Issues and Decision
Memorandum.\8\ A list of the issues which parties raised and to which
the Department responds in the Issues and Decision Memorandum is
attached to this notice as Appendix I. The Issues and Decision
Memorandum is a public document that is on file in the Central Records
Unit, Room 7046 of the main Commerce building and accessible at http://trade.gov/ia. The paper copy and electronic version of the memorandum
are identical in content.
---------------------------------------------------------------------------
\8\ See Memorandum from Susan H. Kuhbach, Acting Deputy
Assistant Secretary for Antidumping and Countervailing Duty
Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for
Import Administration, ``Issues and Decision Memorandum for the
Final Determination in the Antidumping Duty Investigation of
Seamless Refined Copper Pipe and Tube from the People's Republic of
China'' (September 24, 2010) (``Issues and Decision Memorandum'').
---------------------------------------------------------------------------
Changes Since the Preliminary Determination
Changes Applicable to Multiple Companies
1. Pursuant to Dorbest, the Department calculated an hourly wage
rate by averaging earnings and/or wages in countries that are
economically comparable to the PRC and that are significant producers
of comparable merchandise.\9\
---------------------------------------------------------------------------
\9\ See Issues and Decision Memorandum at Comment 1; Memorandum
to the File from Shawn Higgins, International Trade Compliance
Analyst, AD/CVD Operations, Office 4, ``Investigation of Seamless
Refined Copper Pipe and Tube from the People's Republic of China:
Final Surrogate Value Memorandum,'' (September 24, 2010) (``Final
Surrogate Value Memorandum'') at 2, Attachment 3.
---------------------------------------------------------------------------
2. The Department made several adjustments to the calculations of
the surrogate financial ratios.\10\
---------------------------------------------------------------------------
\10\ See Issues and Decision Memorandum at Comment 2; Final
Surrogate Value Memorandum at 2, Attachment 4.
---------------------------------------------------------------------------
Changes Specific to Golden Dragon
1. The Department treated Golden Dragon's copper cathode purchases
from a certain PRC supplier as market economy purchases.\11\
---------------------------------------------------------------------------
\11\ See Issues and Decision Memorandum at Comment 4; Memorandum
from Shawn Higgins, International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to the File, ``Seamless Refined Copper Pipe
and Tube from the People's Republic of China: Final Analysis
Memorandum for Golden Dragon Precise Copper Tube Group, Inc.''
(September 24, 2010) (``Golden Dragon's Final Analysis Memorandum'')
at 1-2, Attachment 1.
---------------------------------------------------------------------------
2. In accordance with section 777A(a)(2) of the Act and 19 CFR
351.413, the Department declined to make certain adjustments to the
calculation of indirect U.S. selling expenses for salaries paid to two
employees of Golden Dragon who worked in the United States during the
POI because these adjustments are insignificant in relation to the
price of the merchandise.\12\
---------------------------------------------------------------------------
\12\ See Issues and Decision Memorandum at Comment 8; Golden
Dragon's Final Analysis Memorandum at 2, Attachment 3.
---------------------------------------------------------------------------
3. The Department revised the reported wall thickness for one
control number (``CONNUM'').\13\
---------------------------------------------------------------------------
\13\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to the File,
``Antidumping Duty Investigation of Seamless Refined Copper Pipe and
Tube from the People's Republic of China: Verification of the
Questionnaire Responses of Golden Dragon Precise Copper Tube Group,
Inc.'' (June 15, 2010) (``Golden Dragon's Verification Report'') at
3; Golden Dragon's Final Analysis Memorandum at 2.
---------------------------------------------------------------------------
4. The Department revised the reported electricity consumption to
account for indirect consumption of electricity.\14\
---------------------------------------------------------------------------
\14\ Id.
---------------------------------------------------------------------------
5. The Department revised the reported indirect labor to account
for previously unreported labor hours.\15\
---------------------------------------------------------------------------
\15\ Id.
---------------------------------------------------------------------------
6. The Department revised the reported water consumption to reflect
the water consumption calculated in Golden Dragon's cost
reconciliation.\16\
---------------------------------------------------------------------------
\16\ See Golden Dragon's Verification Report at 3; Golden
Dragon's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
7. The Department revised the reported direct labor and electricity
consumption to reflect the correct production quantities at all stages
of the production process.\17\
---------------------------------------------------------------------------
\17\ See Golden Dragon's Verification Report at 2, 29; Golden
Dragon's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
8. The Department revised the reported electricity consumption to
reflect the correct allocation of electricity to the different inner
grooved tubes (``IGT'') based on the IGT forming processing stage
consumption that corresponds to each type of IGT.\18\
---------------------------------------------------------------------------
\18\ See Issues and Decision Memorandum at Comment 9; Golden
Dragon's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
9. The Department adjusted the reported electricity and direct
labor consumption for a particular CONNUM to reflect the lower
electricity and direct labor usage rates for a nine millimeter (mm) IGT
product instead of the higher rates for a seven mm product.\19\
---------------------------------------------------------------------------
\19\ Id.
---------------------------------------------------------------------------
10. The Department revised the reported consumption of plastic
plugs, wood boards, rubber plugs, and paper pads to reflect the weights
measured by the Department during verification.\20\
---------------------------------------------------------------------------
\20\ See Golden Dragon's Verification Report at 33; Golden
Dragon's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
11. The Department revised the distances between Golden Dragon and
several of its suppliers.\21\
---------------------------------------------------------------------------
\21\ See Golden Dragon's Verification Report at 32; Golden
Dragon's Final Analysis Memorandum at 3-4, Attachment 4.
---------------------------------------------------------------------------
12. The Department revised the distances between Golden Dragon and
several seaports, including the nearest seaport.\22\
---------------------------------------------------------------------------
\22\ Id.
---------------------------------------------------------------------------
13. The Department revised the gross unit price of eight invoices
in which the sales amount recorded in the U.S. sales database was less
than the sales amount recorded in the records of the U.S. sales
staff.\23\
---------------------------------------------------------------------------
\23\ See Golden Dragon's Verification Report at 2, 18; Golden
Dragon's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
14. The Department revised the reported international freight
amount to include a security fee that was not reported in the U.S.
sales database.\24\
---------------------------------------------------------------------------
\24\ See Golden Dragon's Verification Report at 2, 22; Golden
Dragon's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
15. The Department revised the credit period over which the
reported credit expenses are based from the period between the date of
sale and the payment date to the period between the date of shipment
and the payment date.\25\
---------------------------------------------------------------------------
\25\ See Golden Dragon's Verification Report at 2, 22-23; Golden
Dragon's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
Changes Specific to the Hailiang Group
1. The Department determined that the Hailiang Group has failed to
cooperate because it has not acted to the best of its ability to comply
with the Department's requests to provide factors of production
(``FOP'') on a product-group specific basis. Therefore, pursuant to
section 776(b) of the Act, the Department has found that, in selecting
from among the facts otherwise available (``FA''), an adverse inference
is appropriate for the Hailiang Group.\26\
---------------------------------------------------------------------------
\26\ See Issues and Decision Memorandum at Comment 12;
Memorandum from Karine Gziryan, International Trade Compliance
Analyst, AD/CVD Operations, Office 4, to the File, ``Seamless
Refined Copper Pipe and Tube from the People's Republic of China:
Final Analysis Memorandum for the Hailiang Group'' (September 24,
2010) (``Hailiang Group's Final Analysis Memorandum'') at 2.
---------------------------------------------------------------------------
2. The Department revised the weighted-average per-unit FOP for
water to include the FOP for water reported on a cubic meter per
kilogram basis.\27\
---------------------------------------------------------------------------
\27\ See Issues and Decision Memorandum at Comment 13; Hailiang
Group's Final Analysis Memorandum at 2.
---------------------------------------------------------------------------
[[Page 60727]]
3. The Department revised the weighted-average per-unit FOP for
wooden crate.\28\
---------------------------------------------------------------------------
\28\ See Issues and Decision Memorandum at Comment 14; Hailiang
Group's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
4. The Department revised its normal value calculation to include
carbon soot, scale-like graphite, hydrogen, and mold oils as direct
materials.\29\
---------------------------------------------------------------------------
\29\ See Issues and Decision Memorandum at Comment 15; Hailiang
Group's Final Analysis Memorandum at 3.
---------------------------------------------------------------------------
5. The Department revised its normal value calculation to exclude
polythene, colorant, and anti-aging master batch.\30\
---------------------------------------------------------------------------
\30\ Id.
---------------------------------------------------------------------------
6. The Department revised its normal value calculation to include
nitrogen, kerosene and charcoal as direct inputs.\31\
---------------------------------------------------------------------------
\31\ See Issues and Decision Memorandum at Comment 15; Hailiang
Group's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
7. The Department revised its normal value calculation to include
the labor hours reported in the two additional indirect labor fields
from the Hailiang Group's post-verification sales database.\32\
---------------------------------------------------------------------------
\32\ See Issues and Decision Memorandum at Comment 17; Hailiang
Group's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
8. The Department incorporated all changes from the Hailiang
Group's minor corrections in the final calculation of the Hailiang
Group's antidumping margin.\33\
---------------------------------------------------------------------------
\33\ See Issues and Decision Memorandum at Comment 18; Hailiang
Group's Final Analysis Memorandum at 4.
---------------------------------------------------------------------------
Scope of Investigation
For the purpose of this investigation, the products covered are all
seamless circular refined copper pipes and tubes, including redraw
hollows, greater than or equal to 6 inches (152.4 mm) in length and
measuring less than 12.130 inches (308.102 mm) (actual) in outside
diameter (``OD''), regardless of wall thickness, bore (e.g., smooth,
enhanced with inner grooves or ridges), manufacturing process (e.g.,
hot finished, cold-drawn, annealed), outer surface (e.g., plain or
enhanced with grooves, ridges, fins, or gills), end finish (e.g., plain
end, swaged end, flared end, expanded end, crimped end, threaded),
coating (e.g., plastic, paint), insulation, attachments (e.g., plain,
capped, plugged, with compression or other fitting), or physical
configuration (e.g., straight, coiled, bent, wound on spools).
The scope of this investigation covers, but is not limited to,
seamless refined copper pipe and tube produced or comparable to the
American Society for Testing and Materials (``ASTM'') ASTM-B42, ASTM-
B68, ASTM-B75, ASTM-B88, ASTM-B88M, ASTM-B188, ASTM-B251, ASTM-B251M,
ASTM-B280, ASTM-B302, ASTM-B306, ASTM-359, ASTM-B743, ASTM-B819, and
ASTM-B903 specifications and meeting the physical parameters described
therein. Also included within the scope of this investigation are all
sets of covered products, including ``line sets'' of seamless refined
copper tubes (with or without fittings or insulation) suitable for
connecting an outdoor air conditioner or heat pump to an indoor
evaporator unit. The phrase ``all sets of covered products'' denotes
any combination of items put up for sale that is comprised of
merchandise subject to the scope.
``Refined copper'' is defined as: (1) Metal containing at least
99.85 percent by weight of copper; or (2) metal containing at least
97.5 percent by weight of copper, provided that the content by weight
of any other element does not exceed the following limits:
------------------------------------------------------------------------
Limiting content
Element percent by weight
------------------------------------------------------------------------
Ag--Silver.......................................... 0.25
As--Arsenic......................................... 0.5
Cd--Cadmium......................................... 1.3
Cr--Chromium........................................ 1.4
Mg--Magnesium....................................... 0.8
Pb--Lead............................................ 1.5
S--Sulfur........................................... 0.7
Sn--Tin............................................. 0.8
Te--Tellurium....................................... 0.8
Zn--Zinc............................................ 1.0
Zr--Zirconium....................................... 0.3
Other elements (each)............................... 0.3
------------------------------------------------------------------------
Excluded from the scope of this investigation are all seamless
circular hollows of refined copper less than 12 inches in length whose
OD (actual) exceeds its length. The products subject to this
investigation are currently classifiable under subheadings 7411.10.1030
and 7411.10.1090 of the Harmonized Tariff Schedule of the United States
(``HTSUS''). Products subject to this investigation may also enter
under HTSUS subheadings 7407.10.1500, 7419.99.5050, 8415.90.8065, and
8415.90.8085. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the scope
of this investigation is dispositive.
Scope Comments
The Department has not received comments on the scope of this
investigation since the publication of the Preliminary Determination.
Verification
As provided in section 782(i) of the Act, the Department verified
the information submitted by Golden Dragon and the Hailiang Group for
use in the final determination. The Department used standard
verification procedures including examination of relevant accounting
and production records and original source documents provided by the
respondents.\34\
---------------------------------------------------------------------------
\34\ See Memorandum from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to the File, ``Verification of the Sales and
Factors Responses of Zhejiang Hailiang Co., Ltd.; Shanghai Hailiang
Co., Ltd.; and Hong Kong Hailiang Co., Ltd. in the Antidumping
Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China'' (June 18, 2010); Memorandum from Shawn
Higgins, International Trade Compliance Analyst, AD/CVD Operations,
Office 4, to the File, ``Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People's Republic of China:
Verification of the Questionnaire Responses of Golden Dragon Precise
Copper Tube Group, Inc.'' (June 15, 2010).
---------------------------------------------------------------------------
Non-Market Economy Treatment
The Department considers the PRC to be a non-market economy
(``NME'') country.\35\ 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. No party
has challenged the designation of the PRC as an NME country in this
investigation. Therefore, the Department continues to treat the PRC as
an NME country for purposes of this final determination.
---------------------------------------------------------------------------
\35\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination: Coated Free
Sheet Paper from the People's Republic of China, 72 FR 30758, 30760
(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).
---------------------------------------------------------------------------
Surrogate Country
In the Preliminary Determination, the Department stated that it
selected India as the appropriate surrogate country to use in this
investigation for the following reasons: (1) It is a significant
producer of comparable merchandise; (2) it is at a similar level of
economic development pursuant to section 773(c)(4) of the Act; and (3)
the Department has reliable data from India that it can use to value
the FOPs.\36\ The Department received no comments on this issue after
the Preliminary Determination and the Department has not made changes
to its findings with respect to the selection of a surrogate country
for the final determination.
---------------------------------------------------------------------------
\36\ See Preliminary Determination, 75 FR at 26719.
---------------------------------------------------------------------------
Separate Rates
In proceedings involving NME countries, the Department holds a
rebuttable presumption that all companies within the country are
subject to government control and, thus,
[[Page 60728]]
should be assessed a single antidumping duty rate. It is the
Department's policy to assign all exporters of subject merchandise 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.\37\
---------------------------------------------------------------------------
\37\ See 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), 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).
---------------------------------------------------------------------------
In the Preliminary Determination, the Department found that the
following companies demonstrated eligibility for separate-rate status:
Luvata Tube (Zhongshan) Ltd.; Ningbo Jintian Copper Tube Co. Ltd.;
Zhejiang Naile Copper Co., Ltd.; Zhejiang Jiahe Pipes Inc.; and Luvata
Alltop (Zhongshan) Ltd. (collectively, the ``Separate Rate
Applicants'').\38\ Since the publication of the Preliminary
Determination, no party has commented on the eligibility of the
Separate Rate Applicants for separate-rate status. For the final
determination, the Department continues to find that the evidence
placed on the record of this investigation by the Separate Rate
Applicants demonstrates both de jure and de facto absence of government
control with respect to each company's respective exports of the
merchandise under investigation. Thus, the Department continues to find
that the Separate Rate Applicants are eligible for separate-rate
status.
---------------------------------------------------------------------------
\38\ See Preliminary Determination, 75 FR at 26720.
---------------------------------------------------------------------------
The separate rate is determined based on the estimated weighted-
average dumping margins established for exporters and producers
individually investigated, excluding zero and de minimis margins or
margins based entirely on adverse facts available (``AFA'').\39\ In
this investigation both mandatory respondents, Golden Dragon and the
Hailiang Group, have estimated weighted-average dumping margins which
are above de minimis and which are not based on total AFA. Therefore,
because there are only two relevant weighted-average dumping margins
for this final determination and because using a weighted average risks
disclosure of business proprietary information, the separate rate is a
simple-average of these two values, which is 36.05 percent.\40\
---------------------------------------------------------------------------
\39\ See section 735(c)(5)(A) of the Act.
\40\ See Steel Wire Garment Hangers from the People's Republic
of China: Final Determination of Sales at Less Than Fair Value, 73
FR 47587, 47591 (August 14, 2008).
---------------------------------------------------------------------------
Use of FA and AFA
Section 776(a) of the Act provides that the Department shall apply
FA if (1) necessary information is not on the record, or (2) an
interested party or any other person (A) withholds information that has
been requested, (B) fails to provide information within the deadlines
established, or in the form and manner requested by the Department,
subject to subsections (c)(1) and (e) of section 782 of the Act, (C)
significantly impedes a proceeding, or (D) provides information that
cannot be verified as provided by section 782(i) of the Act.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying FA when a party has failed to
cooperate by not acting to the best of its ability to comply with a
request for information. Such an adverse inference may include reliance
on information derived from the petition, the final determination, a
previous administrative review, or other information placed on the
record.
Hailiang Group
In the Preliminary Determination, the Department determined,
pursuant to section 776(a)(1) and (2)(B) of the Act, that it was
appropriate to base the Hailiang Group's preliminary dumping margin, in
part, on FA because (1) the Hailiang Group's own information on the
record indicates that it had the ability to report its FOPs on a
product-group specific basis,\41\ and (2) the Hailiang Group continued
to report FOP values that are identical for all CONNUMs, despite the
Department's multiple requests to provide this data on a more specific
basis.\42\ On April 29, 2010, the Department issued a questionnaire
that requested the Hailiang Group to report product-specific FOPs for
different production stages and, if the Hailiang Group believed that
this were not possible, to comment on the product-group specific
processing yields that are on the record of this investigation.
However, the Hailiang Group neither reported product-specific FOPs for
different production stages nor explained why these product-group
specific processing yields are incorrect and cannot be applied in the
calculation of product-group specific FOPs.\43\ The Hailiang Group had
multiple opportunities both before and after the Preliminary
Determination to explain why the cumulative yields that were calculated
by Petitioners and used in the Preliminary Determination were flawed
and could not be used in the final determination. The Hailiang Group,
however, did not provide such an explanation.
---------------------------------------------------------------------------
\41\ See Letter from the Hailiang Group to the Secretary of
Commerce, ``Certain Seamless Refined Copper Pipe & Tube from the
People's Republic of China: Supplemental Section D Questionnaire
Response of Hailiang Group'' (March 19, 2010) at Exhibit 6; Letter
from the Hailiang Group to the Secretary of Commerce, ``Certain
Seamless Refined Copper Pipe & Tube from the People's Republic of
China: Supplemental Section D Questionnaire Response of Hailiang
Group'' (April 12, 2010) at Exhibit 12.
\42\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to the Hailiang Group, ``Sections C&D Third
Supplemental Questionnaire'' (April 28, 2010) at 2-3; Letter from
Robert Bolling, Program Manager, AD/CVD Operations, Office 4, to the
Hailiang Group, ``Sections C&D Second Supplemental Questionnaire''
(March 29, 2010) at 5; Letter from Robert Bolling, Program Manager,
AD/CVD Operations, Office 4, to the Hailiang Group, ``Sections C&D
Supplemental Questionnaire'' (February 26, 2010) at 8-9; Letter from
Robert Bolling, Program Manager, AD/CVD Operations, Office 4, to
Zhejiang Hailiang, ``Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People's Republic of China:
Request for Information'' (December 4, 2009) at D-2.
\43\ See Letter from the Hailiang Group to the Secretary of
Commerce, ``Certain Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Third Supplemental Section D
Questionnaire & Part 1 of Post-Preliminary FOP Response of Hailiang
Group'' (May 11, 2010); Letter from the Hailiang Group to the
Secretary of Commerce, ``Certain Seamless Refined Copper Pipe and
Tube from China: Part 2 of Post-Preliminary FOP Response of the
Hailiang Group'' (May 14, 2010).
---------------------------------------------------------------------------
Because the Hailiang Group has continued to report FOP values that
are identical for all CONNUMs, despite the Department's multiple
requests to provide this data on a more specific basis, all the
information necessary for the Department to calculate an accurate
dumping margin for the Hailiang Group is not on the record and
available for use in the final determination. Since the Hailiang Group
did not provide the requested FOPs on a product-group specific basis,
this necessary information was not available on the record and,
therefore, the Department has determined, pursuant to section 776(a)(1)
and (2)(B) of the Act, that it continues to be appropriate to base the
Hailiang Group's dumping margin, in part, on FA. Furthermore, the
Department determines that the Hailiang Group has failed to cooperate
because the Hailiang Group has not acted to the best of its ability to
comply with the Department's requests both before and after the
Preliminary Determination to provide FOPs on a product-group specific
basis or to explain why the cumulative yields calculated by Petitioners
and used in the Preliminary Determination could not be used in the
final determination. Therefore, pursuant to section 776(b) of the Act,
the Department finds that, in
[[Page 60729]]
selecting from among FA, an adverse inference is appropriate for the
Hailiang Group.\44\
---------------------------------------------------------------------------
\44\ See Issues and Decision Memorandum at Comment 12; Hailiang
Group's Final Analysis Memorandum at 6.
---------------------------------------------------------------------------
PRC-Wide Entity
In the Preliminary Determination, the Department determimined that
certain PRC exporters/producers did not respond to the Department's
requests for information.\45\ Thus, the Department treated these PRC
exporters/producers as part of the PRC-wide entity and found that the
PRC-wide entity did not respond to our requests for information.\46\ No
additional information was placed on the record with respect to any of
these companies after the Preliminary Determination. Since the PRC-wide
entity did not provide the Department with requested information,
pursuant to section 776(a)(2)(A) of the Act, the Department continues
to find it appropriate to base the PRC-wide rate on FA.
---------------------------------------------------------------------------
\45\ See Preliminary Determination, 75 FR at 26722.
\46\ Id.
---------------------------------------------------------------------------
The Department determines that, because the PRC-wide entity did not
respond to our requests for information, the PRC-wide entity has failed
to cooperate to the best of its ability. Therefore, pursuant to section
776(b) of the Act, the Department finds that, in selecting from among
the FA, an adverse inference is appropriate for the PRC-wide entity.
Because the Department begins with the presumption that all
companies within an NME country are subject to government control, and
because only Separate Rate Applicants have overcome that presumption,
the Department is applying a single antidumping rate (i.e., the PRC-
wide entity rate) to all other exporters of subject merchandise from
the PRC. Such companies did not demonstrate entitlement to a separate
rate.\47\ The PRC-wide entity rate applies to all entries of subject
merchandise except for entries from Golden Dragon, the Hailiang Group,
and the Separate Rate Applicants.
---------------------------------------------------------------------------
\47\ 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).
---------------------------------------------------------------------------
Selection of the AFA Rate for the PRC-Wide Entity
In selecting a rate for AFA, the Department selects a rate that is
sufficiently adverse ``as to effectuate the purpose of the facts
available rule to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' \48\ Further,
it is the Department's practice to select a rate that ensures ``that
the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' \49\ It is the
Department's practice to select, as AFA, the higher of the (a) highest
margin alleged in the petition, or (b) the highest calculated rate of
any respondent in the investigation.\50\ In the instant investigation,
as AFA, the Department has assigned to the PRC-wide entity the highest
rate on the record of this proceeding, which is the 60.85 percent
weighted-average margin calculated for the Hailiang Group.\51\ The
Department determines that this information is the most appropriate
from the available sources to effectuate the purposes of AFA.
---------------------------------------------------------------------------
\48\ See Notice of Final Determination of Sales at Less Than
Fair Value: Static Random Access Memory Semiconductors From Taiwan,
63 FR 8909, 8932 (February 23, 1998).
\49\ See Brake Rotors From the People's Republic of China: Final
Results and Partial Rescission of the Seventh Administrative Review;
Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939
(November 18, 2005) (quoting the Statement of Administrative Action
accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d
Cong., 2d Session at 870 (1994)).
\50\ See Final Determination of Sales at Less Than Fair Value:
Certain Cold-Rolled Flat-Rolled Carbon Quality Steel Products From
The People's Republic of China, 65 FR 34660 (May 31, 2000) and
accompanying Issues and Decision Memorandum at ``Facts Available.''
\51\ See Hailiang Group's Final Analysis Memorandum at 1,
Attachment III.
---------------------------------------------------------------------------
The dumping margin for the PRC-wide entity applies to all entries
of the merchandise under investigation except for entries of
merchandise under investigation from the exporter/manufacturer
combinations listed in the chart in the ``Final Determination'' section
below.
Combination Rates
In the Initiation Notice, the Department stated that it would
calculate combination rates for certain respondents that are eligible
for a separate rate in this investigation.\52\ This practice is
described in Policy Bulletin 05.1, available at http://www.trade.gov/ia.
---------------------------------------------------------------------------
\52\ See Seamless Refined Copper Pipe and Tube From the People's
Republic of China and Mexico: Initiation of Antidumping Duty
Investigations, 74 FR 55194, 55199 (October 27, 2009) (``Initiation
Notice'').
---------------------------------------------------------------------------
Final Determination
The Department determines that the following dumping margins exist
for the period January 1, 2009 through June 30, 2009:
------------------------------------------------------------------------
Weighted-
average
Exporter Producer percent
margin
------------------------------------------------------------------------
Golden Dragon Precise Copper Tube Golden Dragon Precise 11.25
Group, Inc. Copper Tube Group, Inc.
Zhejiang Hailiang Co., Ltd.; Hong Zhejiang Hailiang Co., 60.85
Kong Hailiang Metal Trading. Ltd.; Shanghai Hailiang
Copper Co., Ltd.
Limited; Shanghai Hailiang
Copper Co., Ltd
Zhejiang Naile Copper Co., Ltd... Zhejiang Naile Copper 36.05
Co., Ltd.
Zhejiang Jiahe Pipes Inc......... Zhejiang Jiahe Pipes Inc. 36.05
Luvata Tube (Zhongshan) Ltd...... Luvata Tube (Zhongshan) 36.05
Ltd.
Luvata Tube (Zhongshan) Ltd...... Luvata Alltop (Zhongshan) 36.05
Ltd.
Luvata Alltop (Zhongshan) Ltd.... Luvata Alltop (Zhongshan) 36.05
Ltd.
Ningbo Jintian Copper Tube Co. Ningbo Jintian Copper 36.05
Ltd. Tube Co. Ltd.
PRC-Wide Entity.................. PRC-Wide Entity.......... 60.85
------------------------------------------------------------------------
Disclosure
The Department will disclose the calculations performed within five
days of the date of publication of this notice to parties in this
proceeding in accordance with 19 CFR 351.224(b).
Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, the Department
will instruct U.S. Customs and Border Protection (``CBP'') to continue
to
[[Page 60730]]
suspend liquidation of all entries of copper pipe and tube from the
PRC, as described in the ``Scope of Investigation'' section, entered,
or withdrawn from warehouse, for consumption on or after May 12, 2010,
the date of publication of the Preliminary Determination in the Federal
Register. The Department will instruct CBP to require a cash deposit or
the posting of a bond equal to the weighted-average amount by which the
normal value exceeds U.S. price, as indicated above.
International Trade Commission Notification
In accordance with section 735(d) of the Act, the Department has
notified the International Trade Commission (``ITC'') of the final
affirmative determination of sales at LTFV. As the Department's 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 subject merchandise. 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, upon further instruction by the Department, antidumping
duties on all imports of the subject merchandise entered, or withdrawn
from warehouse, for consumption on or after the effective date of the
suspension of liquidation.
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 is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: September 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
Appendix I
Issues for Final Determination
Comment 1: Whether the Department should revise its labor rate
calculation.
Comment 2: Whether the Department should revise its calculation of
the surrogate financial ratios.
Comment 3: Whether the Department should issue cash deposit
instructions that contain ad valorem rates or specific rates.
Issues Specific to Golden Dragon Precise Copper Tube Group, Inc.
Comment 4: Whether the Department should treat copper cathode
purchases by Golden Dragon from a certain supplier in the Peoples's
Republic of China as non-market economy purchases.
Comment 5: Whether the Department should recalculate Golden Dragon's
copper cathode cost based on the bonded and general trade copper
cathode purchases during the period of investigation.
Comment 6: Whether the Department should revise the surrogate value
for plywood batten consumed by Golden Dragon.
Comment 7: Whether the Department should consider solvent consumed
by Golden Dragon to be a direct material input.
Comment 8: Whether the Department should include salaries paid to
two employees of Golden Dragon who worked in the United States
during the period of investigation as indirect U.S. selling
expenses.
Comment 9: Whether the Department should adjust the factor of
production for electricity for 7 mm and 9 mm inner-grooved tube
products.
Comment 10: Whether the Department should make certain minor
corrections.
Issues Specific to Zhejiang Hailiang Co., Ltd., Shanghai Hailiang
Copper Co., Ltd., and Hong Kong Hailiang Metal Trading Limited
Comment 11: Whether to use facts available with regard to the
Hailiang Group's line set sales.
Comment 12: Whether to use of facts available with regard to the
Hailiang Group's factors of production.
Comment 13: Whether to correct the water usage factor of production
used in the Preliminary Determination.
Comment 14: Whether the Department should accept the post-
preliminary correction of the consumption of Shanghai Hailiang's
wooden crates.
Comment 15: Whether to continue considering certain raw materials as
factors of production or exclude them from the calculation of the
Hailiang Group's normal value.
Comment 16: Whether to continue using the actual weight reported by
the Hailiang Group in its United States sales database.
Comment 17: Whether to include two additional categories of indirect
labor as labor inputs.
Comment 18: Whether the Department should make certain minor
corrections.
[FR Doc. 2010-24720 Filed 9-30-10; 8:45 am]
BILLING CODE 3510-DS-P