[Federal Register Volume 75, Number 76 (Wednesday, April 21, 2010)]
[Notices]
[Pages 20817-20824]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-9178]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-896]
Magnesium Metal from the People's Republic of China: Preliminary
Results of the 2008-2009 Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from interested parties, the
Department of Commerce (``the Department'') is conducting an
administrative review of the antidumping duty order on magnesium metal
from the People's Republic of China (``PRC''), covering the period
April 1, 2008, through March 31, 2009. This administrative review
covers one exporter of the subject merchandise.
We have preliminarily determined that the respondent in this
administrative review has not made sales in the United States at prices
below normal value during the period of review (``POR''). If these
preliminary results are adopted in our final results of this review, we
will instruct U.S. Customs and Border Protection (``CBP'') to liquidate
entries of subject merchandise during the POR without regard to
antidumping duties.
We invite interested parties to comment on these preliminary
results. Parties who submit comments are requested to submit with each
argument a summary of the argument. We intend to issue the final
results no later than 120 days from the date of publication of this
notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as
amended (``the Act'').
EFFECTIVE DATE: April 21, 2010.
FOR FURTHER INFORMATION CONTACT: Laurel LaCivita or Eugene Degnan, AD/
CVD Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4243 and (202) 482-0414, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 12, 1995, the Department published in the Federal Register
the antidumping duty order on magnesium metal from the PRC.\1\ On April
1, 2009,
[[Page 20818]]
the Department published in the Federal Register a notice of
opportunity to request an administrative review of the antidumping duty
order on magnesium metal from the PRC for the period April 1, 2008,
through March 31, 2009.\2\ On April 27, 2009, in accordance with 19 CFR
351.213(b)(2), Tianjin Magnesium International, Co. Ltd. (``TMI''), a
foreign exporter of the subject merchandise, requested the Department
to review its sales of subject merchandise. On May 30, 2009, US
Magnesium LLC (``Petitioner'') also requested that the Department
conduct an administrative review of TMI's exports of subject
merchandise. On May 29, 2009, the Department initiated an
administrative review of the order on magnesium metal from the PRC for
the POR with respect to TMI.\3\
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\1\ See Notice of Antidumping Duty Orders: Pure Magnesium From
the People's Republic of China, the Russian Federation and Ukraine;
Notice of Amended Final Determination of Sales at Less Than Fair
Value: Antidumping Duty Investigation of Pure Magnesium from the
Russian Federation, 60 FR 25691 (May 12, 1995).
\2\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative
Review, 74 FR 14771 (April 1, 2009).
\3\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 74 FR 25711 (May 29, 2009).
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On June 10, 2009, the Department issued its antidumping duty
questionnaire to TMI. On July 6, 2009, TMI submitted its Section A
questionnaire response (``TMI's AQR''). On August 3, 2009, TMI
submitted its Section C and D questionnaire responses (``TMI's CQR''
and ``TMI's DQR,'' respectively). On September 9, 2009, Petitioner
requested that the Department verify TMI. On October 10, 2009,
Petitioner submitted comments on TMI's AQR, CQR, and DQR. On December
23, 2009, the Department issued its first supplemental questionnaire to
TMI. On January 26, 2010, TMI submitted its response to the
Department's sections A, C and D supplemental questionnaire (``TMI's
1st SQR''). On March 19, 2010, the Department issued the second
supplemental questionnaire to TMI and the Department received a
response on April 6, 2010 (``TMI's 2nd SQR'').
On October 13, 2009, the Department requested that Import
Administration's Office of Policy provide a list of surrogate countries
for this review.\4\ On October 13, 2009, the Office of Policy issued
its list of surrogate countries.\5\ On October 16, 2009, the Department
issued a letter to interested parties seeking comments on surrogate
country selection and surrogate values. On October 30, 2009, Petitioner
and TMI submitted comments on surrogate country selection
(``Petitioner's Surrogate Country Selection Letter'' and ``TMI's
Surrogate Country Selection Letter''). On November 12, 2009, Petitioner
and TMI submitted surrogate value comments (``Petitioner's Surrogate
Value Comments'' and ``TMI's Surrogate Value Comments,'' respectively).
On November 25, 2009, Petitioner submitted rebuttal surrogate value
comments (``Petitioner's Rebuttal Surrogate Value Comments''). On
November 27, 2009, TMI submitted rebuttal surrogate value comments
(``TMI's Rebuttal Surrogate Value Comments'').
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\4\ See Memorandum to Kelly Parkhill, Acting Director, Office of
Policy, ``Antidumping Duty Administrative Review of Magnesium Metal
from the People's Republic of China: Surrogate-Country Selection,''
dated September 15, 2009.
\5\ See Memorandum from Kelly Parkhill, Acting Director, Office
of Policy, ``Request for a list of Surrogate Countries for an
Administrative Review of the Antidumping Duty Order on Magnesium
Metal (``Magnesium Metal'') from the People's Republic of China,
dated October 13, 2009 (``Surrogate Country List'').
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On December 23, 2009, the Department extended the time period for
completion of the preliminary results of this review by 75 days until
March 16, 2010.\6\
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\6\ See Magnesium Metal from the People's Republic of China:
Extension of Time for the Preliminary Results of the Antidumping
Duty Administrative Review, 74 FR 68227 (December 23, 2009).
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On February 2, 2010, the Department requested that CBP provide
entry documentation for certain transactions during the POR.\7\
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\7\ See Memorandum to Alice Buchanan, Acting Director, AD/CVD/
Revenue Policy & Programs, Office of International Trade , U.S.
Customs and Border Protection, ``Request for U.S. Entry Documents -
Magnesium Metal from People's Republic of China - A-570-896,'' dated
February 18, 2010.
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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. As a result, the revised deadline for the preliminary results of
this review became March 23, 2010.\8\
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\8\ 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.
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On March 3, 2010, Petitioner requested the Department to extend the
deadline for the preliminary results of review by an additional 45 days
until May 7, 2010. On March 16, 2010, the Department extended the
deadline for the preliminary results an additional 21 days until April
13, 2010.\9\
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\9\ See Magnesium Metal from the People's Republic of China:
Extension of Time for the Preliminary Results of the Antidumping
Duty Administrative Review, 75 FR 13489 (March 22, 2010).
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Period of Review
The POR is April 1, 2008, through March 31, 2009.
Scope of Order
The product covered by this antidumping duty order is magnesium
metal, which includes primary and secondary alloy magnesium metal,
regardless of chemistry, raw material source, form, shape, or size.
Magnesium is a metal or alloy containing by weight primarily the
element magnesium. Primary magnesium is produced by decomposing raw
materials into magnesium metal. Secondary magnesium is produced by
recycling magnesium-based scrap into magnesium metal. The magnesium
covered by this order includes blends of primary and secondary
magnesium.
The subject merchandise includes the following alloy magnesium
metal products made from primary and/or secondary magnesium including,
without limitation, magnesium cast into ingots, slabs, rounds, billets,
and other shapes, and magnesium ground, chipped, crushed, or machined
into raspings, granules, turnings, chips, powder, briquettes, and other
shapes: products that contain 50 percent or greater, but less than 99.8
percent, magnesium, by weight, and that have been entered into the
United States as conforming to an ``ASTM Specification for Magnesium
Alloy''\10\ and thus are outside the scope of the existing antidumping
orders on magnesium from the PRC (generally referred to as ``alloy''
magnesium).
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\10\ The meaning of this term is the same as that used by the
American Society for Testing and Materials in its Annual Book of
ASTM Standards: Volume 01.02 Aluminum and Magnesium Alloys.
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The scope of this order excludes: (1) all forms of pure magnesium,
including chemical combinations of magnesium and other material(s) in
which the pure magnesium content is 50 percent or greater, but less
that 99.8 percent, by weight, that do not conform to an ``ASTM
Specification for Magnesium Alloy''\11\; (2) magnesium that is in
liquid or molten form; and (3) mixtures containing 90 percent or less
magnesium in granular or powder form
[[Page 20819]]
by weight and one or more of certain non-magnesium granular materials
to make magnesium-based reagent mixtures, including lime, calcium
metal, calcium silicon, calcium carbide, calcium carbonate, carbon,
slag coagulants, fluorspar, nephaline syenite, feldspar, alumina
(Al203), calcium aluminate, soda ash, hydrocarbons, graphite, coke,
silicon, rare earth metals/mischmetal, cryolite, silica/fly ash,
magnesium oxide, periclase, ferroalloys, dolomite lime, and
colemanite.\12\
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\11\ This material is already covered by existing antidumping
orders. See Notice of Antidumping Duty Orders: Pure Magnesium from
the People's Republic of China, the Russian Federation and Ukraine;
Notice of Amended Final Determination of Sales at Less Than Fair
Value: Antidumping Duty Investigation of Pure Magnesium from the
Russian Federation, 60 FR 25691 (May 12, 1995); and Antidumping Duty
Order: Pure Magnesium in Granular Form from the People's Republic of
China, 66 FR 57936 (Nov. 19, 2001).
\12\ This third exclusion for magnesium-based reagent mixtures
is based on the exclusion for reagent mixtures in the 2000-2001
investigations of magnesium from China, Israel, and Russia. See
Final Determination of Sales at Less Than Fair Value: Pure Magnesium
in Granular Form From the People's Republic of China, 66 FR 49345
(September 27, 2001); Final Determination of Sales at Less Than Fair
Value: Pure Magnesium From Israel, 66 FR 49349 (September 27, 2001);
Final Determination of Sales at Not Less Than Fair Value: Pure
Magnesium From the Russian Federation, 66 FR 49347 (September 27,
2001). These mixtures are not magnesium alloys, because they are not
chemically combined in liquid form and cast into the same ingot.
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The merchandise subject to this order is classifiable under items
8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the
United States (``HTSUS''). Although the HTSUS items are provided for
convenience and customs purposes, the written description of the
merchandise is dispositive.
Non-Market Economy Country Status
The Department has treated the PRC as a non-market economy
(``NME'') country in all past antidumping duty investigations and
administrative reviews and continues to do so in this case.\13\ The
Department has previously examined the PRC's market economy status and
determined that NME status should continue for the PRC.\14\ In
accordance with section 771(18)(C)(i) of the Act, any determination
that a foreign country is a NME country shall remain in effect until
revoked by the administering authority.\15\ No interested party to this
proceeding has contested such treatment. Accordingly, we calculated
normal value (``NV'') in accordance with section 773(c) of the Act,
which applies to NME countries.
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\13\ See 771(18)(C) of the Act; see, e.g., Pure Magnesium from
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 73 FR 76336 (December 16, 2008); and
Frontseating Service Valves From the People's Republic of China:
Final Determination of Sales at Less Than Fair Value and Final
Negative Determination of Critical Circumstances, 74 FR 10886 (March
13, 2009).
\14\ See Memorandum from the Office of Policy to David M.
Spooner, Assistant Secretary for Import Administration, The People's
Republic of China (PRC) Status as a Non-Market Economy (NME), dated
May 15, 2006. This document is available online at: http://ia.ita.doc.gov/download/prc-nme-status/prc-nme-status-memo.pdf.
\15\ See section 771(18)(C)(i) of the Act.
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Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV on the NME
producer's factors of production (``FOPs''). The Act further instructs
that valuation of the FOPs shall be based on the best available
information in a surrogate market economy country or countries
considered to be appropriate by the Department.\16\ When valuing the
FOPs, the Department shall utilize, to the extent possible, the prices
or costs of FOPs in one or more market economy countries that are: (1)
at a level of economic development comparable to that of the NME
country; and (2) significant producers of comparable merchandise.\17\
Further, the Department normally values all FOPs in a single surrogate
country.\18\ The sources of surrogate value are discussed under the
``Normal Value'' section below and in the Factor Valuation Memorandum,
which is on file in the Central Records Unit, Room 1117 of the main
Department building.\19\
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\16\ See section 773(c)(1) of the Act.
\17\ See section 773(c)(4) of the Act.
\18\ See 19 CFR 351.408(c)(2).
\19\ See Memorandum to the File, ``Preliminary Results of the
2008-2009Administrative Review of the Antidumping Duty Order on Pure
Magnesium from the People's Republic of China: Surrogate Value
Memorandum,'' dated April 13, 2010 (``Factor Valuation
Memorandum'').
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In examining which country to select as its primary surrogate
country for this proceeding, the Department first determined that
India, the Philippines, Indonesia, Colombia, Thailand, and Peru are
countries comparable to the PRC in terms of economic development.\20\
In Petitioner's Surrogate Country Selection Letter, Petitioner contends
that the Department should continue to select India as the surrogate
country for this administrative review, as it has in previous segments
of this proceeding. In addition, Petitioner maintains that to the best
of its knowledge, there are no magnesium producers currently operating
in any of the six countries identified in the Surrogate Country
Memorandum. Petitioner states that Southern Magnesium & Chemicals Ltd.
(``Southern Magnesium''), which is located in India, has either
downsized or ceased its magnesium production operations.\21\ Petitioner
argues, however, that India is a significant producer of aluminum and
the Department has ``routinely determined that aluminum is a product
comparable to magnesium production.''\22\ Petitioner states that India
has five major producers of aluminum.\23\ Additionally, Petitioner
contends that the Department determined that zinc is the only other
merchandise that the Department has found to be comparable to
magnesium,\24\ and India is a significant producer of zinc.\25\
Finally, Petitioner contends that India is the best available surrogate
country for this proceeding because India is known to have complete,
up-to-date, and reliable publicly available information for all raw
material factors of production. Petitioner states that India is the
only potential surrogate country that can be a source for surrogate
financial ratios because India is a significant producer of aluminum
and zinc.
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\20\ See Surrogate Country List.
\21\ See 2002 Annual Report of Southern Magnesium, contained in
Petitioner's Surrogate Country Selection Letter, at 3 and Exhibit 2.
\22\ See Petitioner's Surrogate Country Selection Letter, at 4,
citing Pure Magnesium from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 73 FR 76336,
(December 16, 2008) and accompanying Issues and Decision Memorandum
at Comment 6.D.
\23\ See Petitioner's Surrogate Country Selection Letter, at 4,
citing The Mineral Industry of India - 2007, at Table 2, U.S.
Geological Survey (``USGS''), contained in Exhibit 3; also, citing
USGS Minerals Yearbook, Zinc-2006 at Table 16, contained in Exhibit
4.
\24\ See Petitioner's Surrogate Country Selection Letter, at 5,
citing Notice of Final Determination of Sales at Not Less Than Fair
Value: Pure Magnesium From the Russian Federation, 66 FR 49347
(September 27, 2001), at Comment 1.
\25\ See Petitioner's Surrogate Country Selection Letter, at 5,
citing USGS Minerals Yearbook, Zinc - 2007, at Table 2, contained in
Exhibit 3. See also USGS 2007 Minerals Yearbook, Zinc (Advance
Release), at Table 13, contained in Exhibit 4.
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In TMI's Surrogate Country Selection Letter, TMI contends that
India is the most appropriate surrogate country for the PRC in this
review.\26\ TMI reiterates the reasons that the Department articulated
in its determination to use India as the appropriate surrogate country
in the 2006-2007 administrative review of magnesium metal from the PRC:
(1) India is a significant producer of comparable merchandise; (2)
India is at a level of economic development comparable to the PRC; and
(3) the Department has reliable data to use from India.\27\ Both
Petitioner and TMI submitted Indian sourced data to value FOPs.
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\26\ See TMI's Surrogate Country Selection Letter at 1.
\27\ See id. at 3 citing, Magnesium Metal from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 73 FR 40293, 40294 (July 14, 2008) and Final Determination
of Sales at Less Than Fair Value and Affirmative Critical
Circumstances: Magnesium Metal From the People's Republic of China,
70 FR 9037, 9038 (February 24, 2005).
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[[Page 20820]]
After evaluating interested parties' comments, the Department has
determined that India is the appropriate surrogate country to use in
this review in accordance with section 773(c)(4) of the Act. The
Department based its decision on the following facts: (1) India is at a
level of economic development comparable to that of the PRC; (2) India
is a significant producer of comparable merchandise, i.e., aluminum and
zinc; and (3) India provides the best opportunity to use quality,
publicly available data to value the FOPs. All the data submitted by
both Petitioner and TMI for our consideration as potential surrogate
values and surrogate financial ratios are sourced from India. Finally,
on the record of this review, we have usable surrogate value data
(including financial data) from India, but no such surrogate data from
any other potential surrogate country.
Therefore, because India best represents the experience of
producers of comparable merchandise operating in a surrogate country,
we have selected India as the surrogate country and, accordingly, have
calculated NV using Indian prices to value TMI's FOPs, when available
and appropriate. We have obtained and relied upon publicly available
information wherever possible.
In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may
submit publicly available information to value the FOPs within 20 days
after the date of publication of the preliminary determination.\28\
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\28\ In accordance with 19 CFR 351.301(c)(1), for the final
determination of this 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 SV information pursuant to 19 CFR
351.301(c)(1). See Glycine from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review and Final
Rescission, in Part, 72 FR 58809 (October 17, 2007), and
accompanying Issues and Decision Memorandum at Comment 2.
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Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of 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. Exporters can demonstrate this
independence through the absence of both de jure and de facto
governmental control over export activities. The Department analyzes
each entity exporting the subject merchandise under a test arising from
the Notice of Final Determination of Sales at Less Than Fair value:
Sparklers From the People's Republic of China, 56 FR 20588 (May 6,
1991) (``Sparklers''), as further developed in Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide From
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide''). However, if the Department determines that a company is
wholly foreign-owned or located in a market economy, then a separate
rate analysis is not necessary to determine whether it is independent
from government control.
Separate Rate Recipients
TMI is the only respondent in this administrative review. TMI
reported that it is a wholly Chinese-owned company. Therefore, the
Department must analyze whether it can demonstrate the absence of both
de jure and de facto government control over export activities.
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) other formal
measures by the government decentralizing control of companies.\29\
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\29\ See Sparklers, 56 FR at 20589.
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The evidence provided by TMI supports a preliminary finding of de
jure absence of government control based on the following: (1) an
absence of restrictive stipulations associated with its business and
export licenses; (2) applicable legislative enactments decentralizing
control of companies; and (3) formal measures by the government
decentralizing control of companies.\30\
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\30\ See Foreign Trade Law of the People's Republic of China,
contained in TMI's AQR, at Exhibit A-2; see also Regulations of the
People's Republic of China on Company Registration contained in
TMI's AQR at Exhibit A-5.
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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.\31\ 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 governmental control which would
preclude the Department from assigning separate rates.
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\31\ 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).
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The evidence provided by TMI supports a preliminary finding of de
facto absence of government control based on the following: (1) the
absence of evidence that the export prices are set by or are subject to
the approval of a government agency;\32\ (2) the respondent has
authority to negotiate and sign contracts and other agreements;\33\ (3)
the respondent has autonomy from the government in making decisions
regarding the selection of management;\34\ and (4) the respondent
retains the proceeds of its export sales and makes independent
decisions regarding disposition of profits or financing of losses.\35\
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\32\ See TMI's AQR, at 7; see also the contract and the purchase
order between TMI and a U.S. Customer contained in TMI's AQR at
Exhibit A-6. See also TMI's 1st SQR at 17-18 and Exhibit 8.
\33\ See the purchase agreements between TMI and its producers
contained in TMI's AQR at Exhibit 8 and TMI's 1st SQR at Exhibit 8.
\34\ See TMI's AQR at 8-9.
\35\ See TMI's AQR at 8-9.
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Therefore, the evidence placed on the record of this review by TMI
demonstrates an absence of de jure and de facto government control with
respect to TMI's exports of the merchandise under review, in accordance
with the criteria identified in Sparklers and Silicon Carbide.
Accordingly, we have determined that TMI has demonstrated its
eligibility for a separate rate.
Fair Value Comparisons
To determine whether sales of magnesium metal to the United States
by TMI were made at NV, we compared Export Price (``EP'') to NV, as
described
[[Page 20821]]
in the ``Export Price'' and ``Normal Value'' sections of this notice.
Export Price
In accordance with section 772(a) of the Act, EP is the price at
which the subject merchandise is first sold (or agreed to be sold)
before the date of importation by the producer or exporter of the
subject merchandise outside of the United States to an unaffiliated
purchaser in the United States or to an unaffiliated purchaser for
exportation to the United States, as adjusted under section 772(c) of
the Act. In accordance with section 772(a) of the Act, we have used EP
for TMI's U.S. sales because the subject merchandise was sold directly
to the unaffiliated customers in the United States prior to importation
and because Constructed Export Price was not otherwise warranted.
We have based the EP on delivered prices to unaffiliated purchasers
in the United States. In accordance with section 772(c)(2)(A) of the
Act, we have made deductions from the starting price for movement
expenses, including expenses for foreign inland freight from the plant
to the port of exportation, domestic brokerage and handling,
international freight, marine insurance, brokerage and handling
expenses incurred in the U.S. and U.S. customs duty. No other
adjustments to EP were reported or claimed by TMI.\36\
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\36\ See Memorandum ``Analysis for the Preliminary Results of
Pure Magnesium from the People's Republic of China: Tianjin
Magnesium International, Co. Ltd.'' (``TMI's Analysis Memorandum''),
dated April 13, 2010.
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Normal Value
Section 773(c)(1) of the Act provides that, the Department shall
determine NV using an FOP methodology if the the merchandise is
exported from an NME country and the Department finds that the
available 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. When determining NV in an NME context, the
Department will base NV on FOPs because the presence of government
controls on various aspects of these economies renders price
comparisons and the calculation of production costs invalid under our
normal methodologies. The Department's questionnaire requires that TMI
provide information regarding the weighted-average FOPs across all of
the company's plants that produce the subject merchandise, not just the
FOPs from a single plant. This methodology ensures that the
Department's calculations are as accurate as possible.\37\
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\37\ See, e.g., Final Determination of Sales at Less Than Fair
Value and Critical Circumstances: Certain Malleable Iron Pipe
Fittings From the People's Republic of China, 68 FR 61395 (October
28, 2003), and accompanying Issue and Decision Memorandum at Comment
19.
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In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to find an appropriate
surrogate value to value FOPs, but when a producer sources an input
from a market economy and pays for it in market-economy currency, the
Department may value the factor using the actual price paid for the
input.\38\ TMI reported that it did not purchase any inputs from market
economy suppliers for the production of the subject merchandise.\39\
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\38\ See 19 CFR 351.408(c)(1); see also Shakeproof Assembly
Components, Div. of Ill. Tool Works, Inc. v. United States, 268 F.
3d 1376, 1382-1383 (Fed. Cir. 2001) (affirming the Department's use
of market-based prices to value certain FOPs).
\39\ See TMI's DQR at D-5.
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We calculated NV based on FOPs in accordance with section 773(c)(3)
and (4) of the Act and 19 CFR 351.408(c). The FOPs include but are not
limited to: (1) hours of labor required; (2) quantities of raw
materials employed; (3) amounts of energy and other utilities consumed;
and (4) representative capital costs. The Department used FOPs reported
by TMI for materials, energy, labor, by-products, and packing.
TMI stated that it had no by-products or co-products other than
magnesium waste and magnesium alloy waste, which are generated during
the production of subject merchandise and reintroduced into the
production process.\40\ However, for these preliminary results, TMI did
not request, and we did not grant a by-product offset in our
calculation of NV.
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\40\ Id. at D-13-14 and D-9.
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Factor Valuations
In accordance with section 773(c) of the Act, the Department
calculated NV based on FOPs reported by TMI for the POR. To calculate
NV, the Department multiplied the reported per-unit factor consumption
quantities by publicly available Indian surrogate values. In selecting
the surrogate values, the Department considered the quality,
specificity, and contemporaneity of the data. The Department adjusted
input prices by including freight costs to make them delivered prices,
as appropriate. Specifically, the Department added to Indian import
surrogate values a surrogate freight cost using the shorter of the
reported distance from the domestic supplier to the factory or the
distance from the nearest seaport to the factory of production. This
adjustment is in accordance with the decision of the U.S. Court of
Appeals for the Federal Circuit in Sigma Corp. v. United States, 117
F.3d 1401, 1407-08 (Fed. Cir. 1997). A detailed description of all
surrogate values used to value TMI's reported FOPs can be found in the
Factor Valuation Memorandum.
The Department calculated surrogate values for the majority of
reported FOPs purchased from NME sources using the contemporaneous,
weighted-average unit import value derived from the Monthly Statistics
of the Foreign Trade of India, as published by the Directorate General
of Commercial Intelligence and Statistics of the Ministry of Commerce
and Industry, Government of India in the World Trade Atlas, available
at http://www.gtis.com/wta.htm (``WTA Indian Import Statistics'').\41\
WTA Indian Import Statistics were reported in U.S. dollars\42\ and are
contemporaneous with the POR to calculate surrogate values for TMI's
material inputs. 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 period ofreview, product-specific, and tax-
exclusive.\43\
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\41\ See Factor Valuation Memorandum at Attachment 1.
\42\ The import data obtained from the WTA as published by
Global Trade Information Services (``GTIS''), began identifying the
original reporting currency for India as the U.S. dollar. See
Memorandum to the file, ``Indian Import Statistics Currency
Denomination in the World Trade Atlas,'' dated March 23, 2010.
\43\ 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).
---------------------------------------------------------------------------
In those instances where the Department could not obtain publicly
available information contemporaneous with the POR with which to value
FOPs, the Department adjusted the surrogate values using the Indian
Wholesale Price Index (``WPI''), as published in the International
Financial Statistics of the International Monetary Fund.\44\
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\44\ See Factor Valuation Memorandum at Attachment 2.
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Furthermore, with regard to Indian import-based surrogate values,
we have disregarded prices that we have reason to believe or suspect
may be subsidized, such as those from Indonesia, South
[[Page 20822]]
Korea, and Thailand. We have found in other proceedings that these
countries maintain broadly available, non-industry-specific export
subsidies and, therefore, it is reasonable to infer that all exports to
all markets from these countries may be subsidized.\45\ We are also
guided by the statute's legislative history that explains that it is
not necessary to conduct a formal investigation to ensure that such
prices are not subsidized.\46\ Rather, the Department was instructed by
Congress to base its decision on information that is available to it at
the time it is making its determination. Therefore, we have not used
prices from these countries in calculating the Indian import-based
surrogate values.
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\45\ See Final Results Of Redetermination Pursuant To Court
Remand, dated February 25, 2010, Jinan Yipin Corp., Ltd. v. United
States, 637 F.Supp.2d 1183 (CIT 2009). See also 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),
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 Mach. Import & Export Corp.
v. United States, 293 F. Supp. 2d 1334 (CIT 2003), affirmed 104 Fed.
Appx. 183 (Fed. Cir. 2004).
\46\ See H.R. Rep. No. 100-576 at 590 (1988).
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The Department used WTA Indian Import Statistics to calculate
surrogate values for raw materials, including magnesium metal scrap,
magnesium alloy scrap, unalloyed aluminum, alloyed aluminum, flux,
sulphur, and zinc, as well as for packing materials, including steel
bands and plastic bags.
We valued flux No.2, which consists of magnesium chloride,
potassium chloride and sodium chloride, using data from Chemical
Weekly. We consider both Chemical Weekly and WTA Indian Import
Statistics to be reliable sources, and as such, the Department has used
them in past cases to value chemical component inputs. In the instant
case, however, we have determined that Chemical Weekly is the best
information available for valuing flux because the quantity of the
total imports of magnesium chloride in the WTA Indian Import Statistics
is very small and thus does not appear to represent commercial
quantities.
We valued brokerage and handling using a simple average of the
brokerage and handling costs that were reported in public submissions
that were filed in three antidumping duty cases. Specifically, we
averaged the public brokerage and handling expenses reported by Navneet
Publications (India) Ltd. in the 2007-2008 administrative review of
certain lined paper products from India, Essar Steel Limited in the
2006-2007 antidumping duty administrative review of hot-rolled carbon
steel flat products from India, and Himalya International Ltd. in the
2005-2006 administrative review of certain preserved mushrooms from
India. We inflated the brokerage and handling rates using the
appropriate WPI inflator.
For direct labor, indirect labor, and packing labor, consistent
with 19 CFR 351.408(c)(3), the Department used the PRC regression-based
wage rate as reported on Import Administration's website.\47\ Because
this regression-based wage rate does not separate the labor rates into
different skill levels or types of labor, the Department has applied
the same wage rate to all skill levels and types of labor reported by
TMI.
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\47\ See ``Expected Wages of Selected NME Countries,'' revised
in December 2009, available at http://ia.ita.doc.gov/wages/07wages/final/final-2009-2007-wages.html. The source of these wage-rate data
is the Yearbook of Labour Statistics 2007, ILO (Geneva: 2008),
Chapter 5B: Wages in Manufacturing. The years of the reported wage
rates are from 2006 and 2007.
---------------------------------------------------------------------------
We valued electricity using the updated electricity price data for
small, medium, and large industries, as published by the Central
Electricity Authority, an administrative body 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 small,
medium, and large industries in India. We did not inflate this value
because utility rates represent current rates, as indicated by the
effective dates listed for each of the rates provided.
We valued truck freight expenses using an Indian per-unit average
rate calculated from data on the following 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. We did not inflate this rate since it is iscontemporaneous with
the POR.
We valued marine insurance using the price quote retrieved from RJG
Consultants, online at http://www.rjgconsultants.com/163.html, a
market-economy provider of marine insurance. We did not inflate this
rate since it is iscontemporaneous with the POR.
To value steam coal, we used steam coal prices from the December
12, 2007, CIL's Coal Pricing Circular. See CIL: S&M: GM(F): Pricing
1124, dated 12 December 2007).\48\ Since TMI reports using non-coking
coal with a useful heat value (``UHV'') of 5500 kcal/kg,\49\ we
calculated the surrogate value for steam coal by averaging the prices
of grades B and C steam coal from the December 12, 2007, CIL's Coal
Pricing Circular.\50\ We did not inflate this value to the current POR
because the steam coal rates represent the rates that were in effect
until October 16, 2009,\51\ and are therefore contemporaneous with the
POR. Finally, we have applied an additional fixed surcharge of 165
rupees (``Rs.'')/metric ton (``MT'') to our calculation of the average
of B and C grades of steam coal.
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\48\ See Factor Valuation Memorandum.
\49\ See TMI's DQR at D-12. See also Annexure X of CIL's Coal
Pricing Circular in the Factor Valuation Memorandum (identifying the
range of kcal/kg in each grade of coal).
\50\ See Factor Valuation Memorandum.
\51\ See http://www.coalindia.in/Business.aspx?tab=2.
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19 CRF 351.408(c)(4) directs the Department to value overhead,
general and administrative expenses (``SG&A''), and profit using non-
proprietary information gathered from producers of identical or
comparable merchandise in the surrogate country. In this administrative
review, Petitioner placed the 2008-2009 financial statements on the
record for one Indian producer of aluminum products - National
Aluminium Company Limited (``NALCO''), and one producer of zinc
products - Hindustan Zinc Limited (``Hindustan Zinc''). TMI placed the
2008-2009 financial statements on the record for five Indian producers
of aluminum products: Madras Aluminum Company Ltd. (``MALCO''),
HINDALCO Industries Limited (``HINDALCO''), Century Extrusions Ltd.
(``Century''), Sudal Industries Ltd. (``Sudal''), and Bhoruka Aluminum
(``Bhoruka'').
For the following reasons, we have elected not to rely on the 2008-
2009 audited financial statements of MALCO, HINDALCO, Century and
Bhoruka as surrogate financial statements under section 351.408(c)(4).
First, we elected not to rely on MALCO's audited financial statements
because MALCO suspended production of aluminum and alumina in November
2008, seven months into its fiscal year (and the POR).\52\ In addition,
since it suspended aluminum and alumina production, it switched the use
of its power generation from captive consumption to external sales.\53\
As a result, the financial statements do not reflect the cost
[[Page 20823]]
experience of producing a comparable product to the subject merchandise
for five months of the POR.
---------------------------------------------------------------------------
\52\ See The Madras Aluminum Company Limited, 49th Annual report
2008-09, at 4, contained in TMI's Surrogate Value Comments at
Exhibit SV-11D. MALCO's fiscal year coincides with the POR.
\53\ See id. at 4.
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Second, we have elected not to rely on the financial statements of
HINDALCO, NALCO, Century and Bhoruka because the record indicates that
during this period these companies received subsidies the Department
has previously determined to be countervailable. Consistent with
Department practice, we do not use financial statements of a company
that we have reason to believe or suspect may have received subsidies,
where there are other sufficient reliable and representative data on
the record for purposes of calculating the surrogate financial ratios,
because the financial statements of companies receiving actionable
subsidies are less representative of the financial experience of the
relevant industry than the ratios derived from financial statements
that do not contain evidence of subsidization.\54\ In this case,
HINDALCO's 2008-2009 financial statements indicate that HINDALCO
received benefits under the Duty Free Import Entitlement Scheme (``EPCG
Scheme'').\55\ Similarly, NALCO's financial statements indicate that
NALCO received benefits under the Duty Entitlement Pass Book (``DEPB
Premium'')\56\ and obtained EPCG licenses.\57\ Century's audited
financial statements demonstrated that it also received benefits under
the EPCG scheme.\58\ India's EPCG Scheme and DEPB Premiums each have
been found by the Department to provide a countervailable subsidy.\59\
Third, we rejected Bhoruka's audited financial statements because they
did not show a profit for the 2008-2009 fiscal year.\60\ The Department
has an established practice of not relying on financial statements that
are incomplete, or that indicate that the company is unprofitable, or
designated as ``sick'' by the Indian government.\61\ Fourth, we have
determined not to use the 2008-2009 financial statements of Hindustan
Zinc because Hindustan Zinc has four captive mines, which indicates
that it is at a much higher level of integration than TMI's supplier
and so would not accurately reflect TMI's supplier's experience.\62\
The Department also has an established practice of rejecting financial
statements of surrogate producers whose production process or
integration level is not comparable to the respondent's when better
information is available.\63\
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\54\ See Certain New Pneumatic Off-The-Road Tires from the
People's Republic of China: Final Affirmative Determination of Sales
at Less Than Fair Value and Partial Affirmative Determination of
Critical Circumstances, 73 FR 40485 (July 15, 2008) (``OTR Tires'')
at Comment 17A; Certain Frozen Warmwater Shrimp From the People's
Republic of China: Notice of Final Results and Rescission, in Part,
of 2004/2006 Antidumping Duty Administrative and New Shipper
Reviews, 72 FR 52049, (September 12, 2007) at Comment 2, citing
Freshwater Crawfish Tail Meat from the People's Republic of China:
Notice of Final Results And Rescission, In Part, of 2004/2005
Antidumping Duty Administrative and New Shipper Reviews, 72 FR 19174
(April 17, 2007) (``Crawfish from the PRC''), and accompanying
Issues and Decision Memorandum at Comment 1.
\55\ See Annual Report 2008-2009, Hindalco Industries Limited,
at 91 contained in TMI's Surrogate Value Comments at Exhibit SV-11E.
\56\ See 28th Annual Report 2008-2009, National Aluminium
Company Limited, at 71 contained in Petitioner's Surrogate Value
Comments at Exhibit 5.
\57\ See id. at 72.
\58\ See Century Extrusion Limited, Twenty First Annual Report
2008-2009, at pages 35 and 41, in TMI's Surrogate Value Comments at
Exhibit SV-11B.
\59\ See, e.g., Certain Iron-Metal Castings From India:
Preliminary Results and Partial Rescission of Countervailing Duty
Administrative Review, 64 FR 61592 (November 12, 1999); unchanged in
Certain Iron-Metal Castings From India: Final Results of
Countervailing Duty Administrative Review 65 FR 31515 (May 18,
2000); see also http://ia.ita.doc.gov/esel/eselframes.html; and
Notice of Final Affirmative Countervailing Duty Determination and
Final Negative Critical Circumstances Determination: Certain Lined
Paper Products from India, 71 FR 45034 (August 8, 2006), and
accompanying Issues and Decision Memorandum at ``Benchmarks for
Loans and Discount Rate.''
\60\ See 29th Annual Report 2008-09, Bhoruka Aluminium Limited,
at 31 contained in TMI's Surrogate Value Comments at Exhibit SV-11C.
\61\ See OTR Tires at Comment 17A.
\62\ See Annual Report 2008-09, Hindustan Zinc Limited, at 10,
contained in Petitioner's Surrogate Value Comments at Exhibit 6.
\63\ See Notice of Final Determination of Sales at Less than
Fair Value: Chlorinated Isocyanurates From the People's Republic of
China, 70 FR 24,502 (May 10, 2005) at Comment 3 citing e.g., Notice
of Preliminary Determination of Sales at Less Than Fair Value:
Certain Hot-Rolled Carbon Steel Flat Products From the People's
Republic of China, 66 FR 22183, 22193 (May 3, 2001); Persulfates
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review, 70 FR 6836 (February 9, 2005) (``PRC
Persulfates'') and the accompanying Issues and Decision Memorandum
at Comment 1.
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As a result, we have preliminarily determined to use the 2008-2009
audited financial statements of Sudal as the basis of the financial
ratios in this review. Sudal is a secondary aluminum extrusion
manufacturer that used, purchased, or imported aluminum metals as raw
materials to manufacture aluminum extrusions and fabricated
products.\64\ Although the aluminum extrusions and fabricated products
produced by Sudal require more processing than the magnesium metal
ingots and chippings produced by TMI's producer, Sudal begins its
respective manufacturing process at a similar level of production as
TMI's producer. Moreover, Sudal earned a profit,\65\ and there is no
record evidence to indicate that it received benefits that the
Department has determined to be countervailable.\66\ Further, its
audited financial statements are complete and are sufficiently detailed
to disaggregate materials, labor, overhead, and SG&A expenses.\67\
While the Department has not previously determined whether the
production process for magnesium metal is similar to that of extruded
aluminum products for purposes of calculating surrogate financial
ratios, we find that the evidence currently on the record does not
establish that it must be considered as too dissimilar. Thus, we
preliminarily find that the audited financial statements of Sudal
constitutes the best information available on the record on which to
base surrogate financial ratios in this review. Accordingly, we invite
parties to provide additional information and explanation on the record
concerning the comparability of the manufacturing process for magnesium
metal and extruded aluminum products.
---------------------------------------------------------------------------
\64\ See Annual Report 2008-2009, Sudal Industries Limited, at
33 contained in TMI's Surrogate Value Comments at Exhibit SV-11A.
\65\ See Annual Report 2008-2009, Sudal Industries Limited, at
19 contained in TMI's Surrogate Value Comments at Exhibit SV-11A.
See also Century Extrusions Ltd., at 33 contained in TMI's Surrogate
Value Comments at Exhibit SV-11B.
\66\ See id.
\67\ See id. See also the appropriate schedules to the
financial statements as indicated on page 33 for Century and page 19
for Sudal.
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For a complete listing of all the inputs and a detailed discussion
about our surrogate value selections, see the Factor Valuation
Memorandum.
Currency Conversion
The Department made currency conversions into U.S. dollars, in
accordance with section 773A(a) of the Act, based on the exchange rates
in effect as certified by the Federal Reserve Bank on the dates of the
U.S. sales.
Verification
As provided in section 782(i)(3) of the Act, we intend to verify
the information from TMI upon which we will rely in making our final
determination.
Weighted-Average Dumping Margins
The preliminary weighted-average dumping margin is as follows:
Magnesium metal from the PRC
------------------------------------------------------------------------
Weighted-Average
Exporter Margin
(percentage)
------------------------------------------------------------------------
Tianjin Magnesium International Co. Ltd............. 0.00%
------------------------------------------------------------------------
[[Page 20824]]
Disclosure
The Department will disclose calculations performed for these
preliminary results to the parties within five days of the date of
publication of this notice in accordance with 19 CFR 351.224(b). Any
interested party may request a hearing within 30 days of publication of
these preliminary results.\68\ If a hearing is requested, the
Department will announce the hearing schedule at a later date.
Interested parties may submit case briefs and/or written comments no
later than seven days after the release of the verification report
issued in this review.\69\ Rebuttal briefs and rebuttals to written
comments, limited to issues raised in such briefs or comments, may be
filed no later than five days after the time limit for filing the case
briefs.\70\ Further, we request that parties submitting written
comments provide the Department with an additional copy of those
comments on diskette or CD ROM. The Department intends to issue the
final results of this administrative review, which will include the
results of its analysis of issues raised in any comments, and at a
hearing, within 120 days of publication of these preliminary results,
pursuant to section 751(a)(3)(A) of the Act.
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\68\ See 19 CFR 351.310(c).
\69\ See 19 CFR 351.309(c)(ii).
\70\ See 19 CFR 351.309(d).
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Assessment Rates
The Department will determine, and CBP shall assess, antidumping
duties on all appropriate entries of subject merchandise in accordance
with the final results of this review.\71\ For assessment purposes, we
calculated importer- or customer specific assessment rates for
merchandise subject to this review. We calculated an ad valorem rate
for each importer or customer by dividing the total dumping margins for
reviewed sales to that party by the total entered values associated
with those transactions. For duty-assessment rates calculated on this
basis, we will direct CBP to assess the resulting ad valorem rate
against the entered customs values for the subject merchandise. Where
appropriate, we calculated a per-unit rate for each importer or
customer by dividing the total dumping margins for reviewed sales to
that party by the total sales quantity associated with those
transactions. For duty-assessment rates calculated on this basis, we
will direct CBP to assess the resulting per-unit rate against the
entered quantity of the subject merchandise. Where an importer- (or
customer-) specific assessment rate is de minimis (i.e., less than 0.50
percent) in accordance with the requirement of 19 CFR 351.106(c)(2),
the Department will instruct CBP to assess that importer's (or
customer's) entries of subject merchandise without regard to
antidumping duties. We intend to instruct CBP to liquidate entries
containing subject merchandise exported by the PRC-wide entity at the
PRC-wide rate we determine in the final results of this review. The
Department intends to issue appropriate assessment instructions
directly to CBP 15 days after publication of the final results of this
review.
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\71\ See 19 CFR 351.212(b).
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Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for
shipments of the subject merchandise from the PRC entered, or withdrawn
from warehouse, for consumption on or after the publication date, as
provided by sections 751(a)(2)(C) of the Act: (1) For TMI, which has a
separate rate, the cash deposit rate will be that established in the
final results of this review (except, if the rate is zero or de
minimis, zero cash deposit will be required); (2) for previously
investigated or reviewed PRC and non-PRC exporters not listed above
that received a separate rate in a prior segment of this proceeding the
cash deposit rate will continue to be the exporter-specific rate; (3)
for all PRC exporters of subject merchandise that have not been found
to be entitled to a separate rate, the cash deposit rate will be the
PRC-wide rate of 141.49 percent; and (4) for all non-PRC exporters of
subject merchandise which have not received their own rate, the cash
deposit rate will be the rate applicable to the PRC exporter that
supplied that non-PRC exporter. These deposit requirements, when
imposed, shall remain in effect until further notice.
Notification to Importers
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This administrative review and notice are in accordance with
sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Dated: April 13, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-9178 Filed 4-20-10; 8:45 am]
BILLING CODE 3510-DS-S