[Federal Register Volume 75, Number 72 (Thursday, April 15, 2010)]
[Notices]
[Pages 19613-19618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8643]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-908]
First Administrative Review of Sodium Hexametaphosphate from the
People's Republic of China: Notice of Preliminary Results of the
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
first administrative review of the antidumping duty order on sodium
hexametaphosphate (``sodium hex'') from the People's Republic of China
(``PRC'') for the period of review (``POR'') September 14, 2007,
through February 28, 2009. The Department has preliminarily determined
that sales have been made below normal value (``NV'') by the
respondent. If these preliminary results are adopted in our final
results of this review, the Department will instruct U.S. Customs and
Border Protection (``CBP'') to assess antidumping duties on all
appropriate entries of subject merchandise during the POR. Interested
parties are invited to comment on these preliminary results.
EFFECTIVE DATE: April 15, 2010.
FOR FURTHER INFORMATION CONTACT: Paul Walker, AD/CVD Operations, Office
9, Import Administration, International Trade Administration,
Department of Commerce, 14\th\ Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202) 482-0413.
SUPPLEMENTARY INFORMATION:
Case Timeline
On April 27, 2009, the Department published in the Federal Register
a notice of initiation of an administrative review of sodium hex from
the PRC, covering the POR, for one company, Hubei Xingfa Chemical Group
Co., Ltd. (``Xingfa''). See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and Request for
[[Page 19614]]
Revocation in Part, 74 FR 19042 (April 27, 2009) (``Initiation'').
On November 25, 2009, the Department published a notice extending
the time period for issuing the preliminary results by 60 days to
January 30, 2010. See First Antidumping Duty Administrative Review of
Sodium Hexametaphosphate from the People's Republic of China: Extension
of Time Limit for the Preliminary Results, 74 FR 61656 (November 25,
2009). On February 5, 2010, the Department published a notice extending
the time period for issuing the preliminary results by 41 days to March
12, 2010. See First Antidumping Duty Administrative Review of Sodium
Hexametaphosphate from the People's Republic of China: Extension of
Time Limit for the Preliminary Results, 75 FR 5946 (February 5, 2010).
As explained in the memorandum from the Deputy Assistant Secretary
for Import Administration, the Department has exercised its discretion
to toll deadlines for the duration of the closure of the Federal
Government from February 5, through February 12, 2010. See Memorandum
to the Record regarding ``Tolling of Administrative Deadlines As a
Result of the Government Closure During the Recent Snowstorm,'' dated
February 12, 2010. Thus, all deadlines in this segment of the
proceeding have been extended by seven days, and the revised deadline
for the preliminary results of this review became March 19, 2010.
On March 26, 2010, the Department published a notice extending the
time period for issuing the preliminary results by 17 days to April 5,
2010. See First Antidumping Duty Administrative Review of Sodium
Hexametaphosphate from the People's Republic of China: Extension of
Time Limit for the Preliminary Results, 75 FR 14568 (March 26, 2010).
Submissions by Interest Parties
As noted above, on April 27, 2009, this administrative review was
initiated on one company, Hubei Xingfa. On May 4, 2009, the Department
issued Hubei Xingfa the antidumping duty questionnaire. From May 26,
2009 to October 28, 2009, Hubei Xingfa submitted responses to the
Department's antidumping duty questionnaires.
On July 6, 2009, the Department sent interested parties a letter
inviting comments on surrogate country selection and surrogate value
data. On November 6, 2009, Hubei Xingfa and the Petitioners\1\
submitted comments on surrogate country and information to value
factors of production (``FOP'').
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\1\ ICL Performance Products and Innophos, Inc. (collectively,
the ``Petitioners'').
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Verification
Pursuant to 19 CFR 351.307(b)(iv), from November 19-23, 2009, the
Department conducted verification of Hubei Xingfa's questionnaire
responses. See Memorandum to the File through Scot T. Fullerton,
Program Manager, Office 9, from Paul Walker, Senior Case Analyst,
``First Administrative Review of Sodium Hexametaphospahte from the
People's Republic of China: Verification of Hubei Xingfa Chemical Group
Co., Ltd.,'' dated concurrently with this notice (``Hubei Xingfa
Verification Report'').
Scope of the Order
The merchandise subject to this review is sodium hexametaphosphate.
Sodium hexametaphosphate is a water-soluble polyphosphate glass that
consists of a distribution of polyphosphate chain lengths. It is a
collection of sodium polyphosphate polymers built on repeating
NaPO3 units. SHMP has a P2O5 content
from 60 to 71 percent. Alternate names for sodium hexametaphosphate
include the following: Calgon; Calgon S; Glassy Sodium Phosphate;
Sodium Polyphosphate, Glassy; Metaphosphoric Acid; Sodium Salt; Sodium
Acid Metaphosphate; Graham's Salt; Sodium Hex; Polyphosphoric Acid,
Sodium Salt; Glass H; Hexaphos; Sodaphos; Vitrafos; and BAC-N-FOS.
Sodium hexametaphosphate is typically sold as a white powder or granule
(crushed) and may also be sold in the form of sheets (glass) or as a
liquid solution. It is imported under heading 2835.39.5000, HTSUS. It
may also be imported as a blend or mixture under heading 3824.90.3900,
HTSUS. The American Chemical Society, Chemical Abstract Service
(``CAS'') has assigned the name ``Polyphosphoric Acid, Sodium Salt'' to
SHMP. The CAS registry number is 68915-31-1. However, sodium
hexametaphosphate is commonly identified by CAS No. 10124-56-8 in the
market. For purposes of the review, the narrative description is
dispositive, not the tariff heading, CAS registry number or CAS name.
The product covered by this review includes sodium
hexametaphosphate in all grades, whether food grade or technical grade.
The product covered by this review includes sodium hexametaphosphate
without regard to chain length i.e., whether regular or long chain. The
product covered by this review includes sodium hexametaphosphate
without regard to physical form, whether glass, sheet, crushed,
granule, powder, fines, or other form, and whether or not in solution.
However, the product covered by this review does not include sodium
hexametaphosphate when imported in a blend with other materials in
which the sodium hexametaphosphate accounts for less than 50 percent by
volume of the finished product.
Non-Market Economy (``NME'') Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination made that a foreign country
is an NME country shall remain in effect until revoked by the
administering authority. See, e.g., Brake Rotors from the People's
Republic of China: Final Results and Partial Rescission of the 2004/
2005 Administrative Review and Notice of Rescission of 2004/2005 New
Shipper Review, 71 FR 66304 (November 14, 2006). None of the parties to
this proceeding have contested such treatment. Accordingly, the
Department calculated NV in accordance with section 773(c) of the Act,
which applies to NME countries.
Surrogate Country
When the Department reviews imports from an NME country and the
available information does not permit the Department to determine NV,
pursuant to section 773(a) of the Act, then, pursuant to section
773(c)(4) of the Act, the Department bases NV on an NME producer's
FOPs, to the extent possible, in one or more market-economy countries
that (1) are at a level of economic development comparable to that of
the NME country, and (2) are significant producers of comparable
merchandise. The Department determined India, Philippines, Indonesia,
Columbia, Thailand, and Peru are countries comparable to the PRC in
terms of economic development. See July 6, 2009, Letter to All
Interested Parties, regarding ``Antidumping Duty Administrative Review
of Sodium Hexametaphosphate from the People's Republic of China,''
attaching July 2, 2009, Memorandum to Scot T. Fullerton, Program
Manager, Office 9, AD/CVD Operations, from Kelly Parkhill, Acting
Director, Office for Policy, regarding ``Request for List of Surrogate
Countries for an Administrative Review of the Antidumping Duty Order on
Sodium Hexametaphosphate from the People's Republic of China''
(``Surrogate Country List'').
[[Page 19615]]
Based on publicly available information placed on the record, the
Department determines India to be a reliable source for surrogate
values because India is at a comparable level of economic development,
pursuant to section 773(c)(4) of the Act, is a significant producer of
subject merchandise, and has publicly available and reliable data.
Furthermore, all the surrogate values placed on the record by the
parties were obtained from sources in India. Accordingly, the
Department selected India as the surrogate country for purposes of
valuing the FOPs because it meets the Department's criteria for
surrogate country selection.
Separate Rates
In 2005, the Department notified parties of a new application and
certification process by which exporters and producers may obtain
separate rate status in an NME review. The process requires exporters
and producers to submit a separate rate status certification and/or
application. See Policy Bulletin 05.1: Separate-Rates Practice and
Application of Combination Rates in Antidumping Investigations
involving Non-Market Economy Countries, (April 5, 2005) (``Policy
Bulletin''), available at: http://ia.ita.doc.gov. However, the standard
eligibility criteria for determining whether a firm is eligible for a
separate rate (i.e., a demonstration of an absence of both de jure and
de facto government control over export activities), has not changed.
A designation of a country as an NME remains in effect until it is
revoked by the Department. See section 771(18)(c)(i) of the Act. In
proceedings involving NME countries, it is the Department's practice to
begin with a rebuttable presumption that all companies within the
country are subject to government control and thus should be assessed a
single antidumping duty rate. See Policy Bulletin; see also 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, 53082 (September 8, 2006);
Final Determination of Sales at Less Than Fair Value and Final Partial
Affirmative Determination of Critical Circumstances: Diamond Sawblades
and Parts Thereof from the People's Republic of China, 71 FR 29303,
29307 (May 22, 2006) (``Diamond Sawblades''). 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 affirmatively
demonstrate that it is sufficiently independent so as to be entitled to
a separate rate. See, e.g., Diamond Sawblades, 71 FR at 29307.
Exporters can demonstrate this independence through the absence of both
de jure and de facto government control over export activities. Id. The
Department analyzes each entity exporting the subject merchandise under
a test arising from the Notice of Final Determination of Sales at Less
Than Fair Value: Sparklers from the People's Republic of China, 56 FR
20588, 20589 (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, 22586-87 (May
2, 1994) (``Silicon Carbide''). However, if the Department determines
that a company is wholly foreign-owned or located in a market economy,
then a separate rate analysis is not necessary to determine whether it
is independent from government control. See, e.g., Final Results of
Antidumping Duty Administrative Review: Petroleum Wax Candles from the
People's Republic of China, 72 FR 52355, 52356 (September 13, 2007).
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589. The evidence provided by Hubei Xingfa
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 Hubei Xingfa's May 26, 2009
submission at 2-11; see also Hubei Xingfa's August 21, 2009 submission
at 6-16.
b. 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 22587; see also
Notice of Final Determination of Sales at Less Than Fair Value:
Furfuryl Alcohol from the People's Republic of China, 60 FR 22544,
22545 (May 8, 1995). The Department has determined that an analysis of
de facto control is critical in determining whether respondents are, in
fact, subject to a degree of government control which would preclude
the Department from assigning separate rates. The evidence provided by
Hubei Xingfa supports a preliminary finding of de facto absence of
government control based on the following: (1) the companies set their
own export prices independent of the government and without the
approval of a government authority; (2) the companies have authority to
negotiate and sign contracts and other agreements; (3) the companies
have autonomy from the government in making decisions regarding the
selection of management; and (4) there is no restriction on any of the
company's use of export revenue. See Hubei Xingfa's May 26, 2009
submission at 2-11; see also Hubei Xingfa's August 21, 2009 submission
at 6-16. Therefore, the Department preliminarily finds that Hubei
Xingfa has established that it qualifies for a separate rate under the
criteria established by Silicon Carbide and Sparklers.
Date of Sale
The date of sale is generally the date on which the parties agree
upon all substantive terms of the sale. This normally includes the
price, quantity, delivery terms and payment terms. See Carbon and Alloy
Steel Wire Rod from Trinidad and Tobago: Final Results of Antidumping
Duty Administrative Review, 72 FR 62824 (November 7, 2007) and
accompanying Issues and Decision Memorandum at Comment 1; see also
Notice of Final Determination of Sales at Less Than Fair Value: Certain
Cold-Rolled Flat-Rolled Carbon Quality Steel Products from Turkey, 65
FR 15123 (March 21, 2000) and accompanying Issues and Decision
Memorandum at Comment 2.
Section 351.401(i) of the Department's regulations state that,
``{i{time} n identifying the date of sale of the merchandise
[[Page 19616]]
under consideration 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.'' 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. See 19 CFR 351.401(i);
see also Allied Tube, 132 F. Supp. 2d at 1090-1092. However, as noted
by the Court of International Trade (``CIT'') in Allied Tube, a party
seeking to establish a date of sale other than invoice date bears the
burden of establishing that `` `a different date better reflects the
date on which the exporter or producer establishes the material terms
of sale.` `` See Allied Tube & Conduit Corp. v. United States, 132 F.
Supp. 2d at 1087, 1090 (CIT 2001) (quoting 19 CFR 351.401(i)) (``Allied
Tube'').
Hubei Xingfa reported that the date of sale was determined by the
invoice issued by the affiliated importer to the unaffiliated United
States customer. In this case, as the Department found no evidence
contrary to Hubei Xingfa's claims that invoice date was the appropriate
date of sale, the Department used invoice date as the date of sale for
these preliminary results. See, e.g., Hubei Xingfa's August 21, 2009
submission at 4.
Fair Value Comparisons
To determine whether sales of sodium hex to the United States by
Hubei Xingfa were made at less than fair value, the Department compared
the export price (``EP'') to NV, as described in the ``U.S. Price,''
and ``Normal Value'' sections below.
U.S. Price
In accordance with section 772(a) of the Act, we calculated the EP
for sales to the United States for Hubei Xingfa. We calculated EP based
on the price to unaffiliated purchasers in the United States. In
accordance with section 772(c) of the Act, as appropriate, we deducted
from the starting price to unaffiliated purchasers foreign inland
freight, foreign brokerage and handling, customs duties, domestic
brokerage and handling and other movement expenses incurred. For the
services provided by an NME vendor or paid for using an NME currency we
based the deduction of these movement charges on surrogate values. See
Surrogate Values Memo for details regarding the surrogate values for
movement expenses.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using a FOP methodology if the merchandise is exported
from an NME and the information does not permit the calculation of NV
using home-market prices, third-country prices, or constructed value
under section 773(a) of the Act. The Department bases NV on the FOPs
because the presence of government controls on various aspects of non-
market economies renders price comparisons and the calculation of
production costs invalid under the Department's normal methodologies.
In its questionnaire responses, Hubei Xingfa claimed to self-
produce a portion of the electricity used to produce sodium hex,
stating that it owned several hydroelectric power stations which
provided a portion of the electricity used to produce sodium hex. In
addition, in response to the Department's request for all valid
business licenses held by Hubei Xingfa during the POR, Hubei Xingfa did
not provide separate licenses for the hydroelectric power stations. See
Hubei Xingfa's August 21, 2009 submission at 14-15 and Exhibit 13. In
addition, because, Hubei Xingfa claimed to self-produce its own
electricity, it reported the labor consumed at its hydroelectric power
stations in lieu of reporting the electricity, or intermediate input,
these stations generated. However, at verification the Department
discovered that that each of Hubei Xingfa's hydroelectric power
stations has its own business license, and thus are separate legal
entities that operate apart from Hubei Xingfa. See Hubei Xingfa
Verification Report at 2.
We do not find that the record evidence sufficiently supports the
claim that Hubei Xingfa produced its own electricity because its
electricity suppliers operate as distinct legal entities. Pursuant to
19 CFR 351.401(f), the Department will collapse producers and treat
them as a single entity where (1) those producers are affiliated, (2)
the producers have production facilities for producing similar or
identical products that would not require substantial retooling of
either facility in order to restructure manufacturing priorities, and
(3) there is a significant potential for manipulation of price or
production. In Fish Fillets, for example, the Department did not
collapse a respondent with an affiliated input producer when the
affiliate did not have the ability to produce or export similar or
identical products, and could not produce such products without
substantial retooling. See Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Final Resultsof Antidumping Duty
Administrative Review and Partial Rescission, 73 FR 15479 (March 24,
2008) (``Fish Fillets'') and accompanying Issues and Decision
Memorandum at Comment 5C. As a consequence, when valuing the
intermediate input to the subject merchandise in its calculation of the
NV in Fish Fillets, the Department employed a surrogate value, rather
than the FOPs used to produce the intermediate input. Id. Similarly,
because Hubei Xingfa's electricity suppliers represent distinct legal
entities that are not involved in the production of the subject
merchandise at issue, for these preliminary results, we are applying a
surrogate value to the amount of electricity self-produced by Hubei
Xingfa. See the Hubei Xingfa Verification Report at Exhibits 14 and 16.
In addition, because Hubei Xingfa reported labor as the FOP input into
self-produced electricity, we have deducted the labor usage rate for
self-produced electricity from Hubei Xingfa's overall reported labor.
Because these calculations are proprietary, see Memorandum to the File,
through Scot T. Fullerton, Program Manager, Office 9, from Paul Walker,
Senior Analyst, ``First Administrative Review of Sodium
Hexametaphosphate from the People's Republic of China: Hubei Xingfa
Chemical Group Co., Ltd.,'' dated concurrently with this notice
(``Hubei Xingfa Analysis Memo''), for further details.
Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOP data reported by Hubei Xingfa. To calculate NV, we
multiplied the reported per-unit factor-consumption rates by publicly
available surrogate values. In selecting the surrogate values, we
considered the quality, specificity, and contemporaneity of the data.
See, e.g., Fresh Garlic from the People's Republic of China: Final
Results of Antidumping Duty New Shipper Review, 67 FR 72139 (December
4, 2002) and accompanying Issues and Decision Memorandum at Comment 6;
see also Final Results of First New Shipper Review and First
Antidumping Duty Administrative Review: Certain Preserved Mushrooms
from the People's Republic of China, 66 FR 31204 (June 11, 2001) and
accompanying Issues and Decision Memorandum at Comment 5. As
appropriate, we adjusted input prices by including freight costs to
make them delivered prices. Specifically, we added to Indian import
surrogate values a surrogate freight cost using the shorter
[[Page 19617]]
of the reported distance from the domestic supplier to the factory or
the distance from the nearest seaport to the factory where appropriate.
This adjustment is in accordance with the Court of Appeals for the
Federal Circuit's decision in Sigma Corp. v. United States, 117 F.3d
1401, 1407-08 (Fed. Cir. 1997). For a detailed description of all
surrogate values used for Hubei Xingfa, see Memorandum to the File
through Scot Fullerton, Program Manager, Office 9, from Paul Walker,
Senior Case Analyst, ``First Administrative Review of Sodium
Hexametaphosphate from the People's Republic of China: Surrogate Factor
Valuations for the Preliminary Results,'' dated concurrently with this
notice (``Surrogate Values Memo'').
For these preliminary results, in accordance with the Department's
practice, we used data from Indian Import Statistics and other publicly
available Indian sources in order to calculate surrogate values for
Hubei Xingfa's raw materials, packing, by-products, and energy. In
selecting the best available information for valuing FOPs, in
accordance with section 773(c)(1) of the Act, the Department's practice
is to select, to the extent practicable, surrogate values which are
non-export average values, most contemporaneous with the POR, product-
specific, and tax-exclusive. See, e.g., Notice of Preliminary
Determination of Sales at Less Than Fair Value, Negative Preliminary
Determination of Critical Circumstances and Postponement of Final
Determination: Certain Frozen and Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004),
unchanged in Final Determination of Sales at Less Than Fair Value:
Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic
of Vietnam, 69 FR 71005 (December 8, 2004). The record shows that data
in the Indian Import Statistics, as well as those from the other Indian
sources, are contemporaneous with the POR, product-specific, and tax-
exclusive. See Surrogate Values Memo. In those instances where we could
not obtain publicly available information contemporaneous to the POR
with which to value factors, 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, e.g., Preliminary Determination of
Sales at Less Than Fair Value and Partial Affirmative Determination of
Critical Circumstances: Certain Polyester Staple Fiber from the
People's Republic of China, 71 FR 77373, 77380 (December 26,
2006)(``PSF'').
Furthermore, with regard to the Indian import-based surrogate
values, we have disregarded import prices that we have reason to
believe or suspect may be subsidized. See Certain Frozen Fish Fillets
from the Socialist Republic of Vietnam: Preliminary Results and
Preliminary Partial Rescission of Antidumping Duty Administrative
Review, 70 FR 54007, 54011 (September 13, 2005), results unchanged in
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam:
Final Results of the First Administrative Review, 71 FR 14170 (March
21, 2006); and China Nat'l Machinery Import & Export Corp. v. United
States, 293 F. Supp. 2d 1334, 1336 (Ct. Int'l. Trade 2003), aff'd 104
Fed. Appx. 183 (Fed. Cir. 2004). In determining whether to disregard
inputs the Department believes may be subsidized, the Department,
guided by the legislative history, does not conduct a formal
investigation to ensure that such prices are not subsidized. See
Omnibus Trade and Competitiveness Act of 1988, Conference Report to
accompany H.R. Rep. 100-576 at 590 (1988), reprinted in 1988
U.S.C.C.A.N. 1547, 1623-24. Rather, the Department bases its decision
on information that is available to it at the time it makes its
determination. See Polyethylene Terephthalate Film, Sheet, and Strip
from the People's Republic of China: Preliminary Determination of Sales
at Less Than Fair Value, 73 FR 24552, 24559 (May 5, 2008), unchanged in
Polyethylene Terephthalate Film, Sheet, and Strip from the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 55039 (September 24, 2008) (``PET Film'').
In this instance, we have reason to believe or suspect that prices
of inputs from Indonesia, South Korea, and Thailand may have been
subsidized because we found in other proceedings that these countries
maintain broadly available, non-industry-specific export subsidies.
See, e.g., Dynamic Random Access Memory Semiconductors from the
Republic of Korea: Final Results of Countervailing Duty Administrative
Review, 74 FR 60238 (November 20, 2009). It is thus reasonable to infer
that all exports to all markets from these countries may be subsidized.
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. See, e.g., PET Film.
For direct, indirect, 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 home page, Import Library, Expected Wages of
Selected NME Countries, revised in October 2009. See 2009 Calculation
of Expected Non-Market Economy Wages, 74 FR 65092 (December 9, 2009),
and http://ia.ita.doc.gov/wages/index.html. The source of these wage-
rate data on the Import Administration's web site is the Yearbook of
Labour Statistics 2005, ILO (Geneva: 2007), Chapter 5B: Wages in
Manufacturing. 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 Hubei Xingfa.
We valued electricity using price data for small, medium, and large
industries, as published by the Central Electricity Authority of the
Government of India in its publication titled Electricity Tariff & Duty
and Average Rates of Electricity Supply in India, dated March 2008.
These electricity rates represent actual country-wide, publicly
available information on tax-exclusive electricity rates charged to
industries in India. As the rates listed in this source became
effective on a variety of different dates, we are not adjusting the
average value for inflation.
We valued truck freight expenses using a per-unit average rate
calculated from data on the Infobanc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this Web site contains
inland freight truck rates between many large Indian cities. Since this
value is contemporaneous with the POR, we did not adjust it for
inflation.
We continued our recent practice to value 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
[[Page 19618]]
certain preserved mushrooms from India. See Surrogate Values Memo.
Since the Essar and Navneet brokerage and handling expense are
contemporaneous with the POR, we did not adjust them for inflation.
However, because the Himalaya brokerage and handling expense is not
contemporaneous with the POR, we inflated it using the WPI.
To value factory overhead, selling, general, and administrative
(``SG&A'') expenses, and profit, the Department used the audited
financial statement of Tata Chemicals, as it is the only financial
statement on the record of this review.
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, based on the exchange rates in effect on
the dates of the U.S. sales as certified by the Federal Reserve Bank.
We are preliminarily granting a by-product offset to Hubei Xingfa
for ferro-phosphorous and slag because Hubei Xingfa provided evidence
that these by by-products were produced and sold during the POR.
Preliminary Results of Review
The Department preliminarily determines that the following
weighted-average dumping margins exist:
------------------------------------------------------------------------
Weighted Average
Manufacturer/Exporter Margin (Percent)
------------------------------------------------------------------------
Hubei Xingfa........................................ 118.79
------------------------------------------------------------------------
Disclosure and Public Hearing
The Department will disclose to parties the calculations performed
in connection with these preliminary results within five days of the
date of publication of this notice. See 19 CFR 351.224(b).
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of this administrative review, interested parties may submit publicly
available information to value FOPs within 20 days after the date of
publication of these preliminary results. Interested parties must
provide the Department with supporting documentation for the publicly
available information to value each FOP. Additionally, 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 recently placed on the
record. The Department generally cannot 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.
Interested parties may submit case briefs and/or written comments
no later than 30 days after the date of publication of these
preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal
briefs and rebuttals to written comments, limited to issues raised in
such briefs or comments, may be filed no later than five days after the
deadline for filing case briefs. See 19 CFR 351.309(d). The Department
urges interested parties to provide an executive summary of each
argument contained within the case briefs and rebuttal briefs.
The Department will 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 after the publication date of the final
results of this review excluding any reported sales that entered during
the gap period. In accordance with 19 CFR 351.212(b)(1), we calculated
exporter/importer (or customer)-specific assessment rates for the
merchandise subject to this review. Because we do not have entered
values for all U.S. sales, we calculated an ad valorem 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
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of the subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(2)(C) of the Act: (1) for the exporter
listed above, the cash deposit rate will be established in the final
results of this review (except, if the rate is zero or de minimis,
i.e., less than 0.5 percent, no cash deposit will be required for that
company); (2) for all PRC exporters of subject merchandise which have
not been found to be entitled to a separate rate, the cash deposit rate
will be the PRC-wide rate of 188.05 percent; and (3) for all non-PRC
exporters of subject merchandise which have not received their own
rate, the cash deposit rate will be the rate applicable to the PRC
exporters that supplied that non-PRC exporter. These deposit
requirements, when imposed, shall remain in effect until further
notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
These results are issued and published in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
April 5, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-8643 Filed 4-14-10; 8:45 am]
BILLING CODE 3510-DS-S