[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Notices]
[Pages 23978-23991]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-10429]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-904]
Certain Activated Carbon From the People's Republic of China:
Preliminary Results of the Third Antidumping Duty Administrative
Review, and Preliminary Rescission in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
third administrative review of the antidumping duty order on certain
activated carbon from the People's Republic of China (``PRC'') for the
period April 1, 2009, through March 31, 2010. The Department has
preliminarily determined that sales have been made below normal value
(``NV'') by the respondents examined in this administrative review. 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 period of review.
DATES: Effective Date: April 29, 2011.
FOR FURTHER INFORMATION CONTACT: Bob Palmer or Katie Marksberry, AD/CVD
Operations, Office 9, Import Administration, International Trade
Administration, Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230; telephone: (202) 482-9068 or (202)
482-7906, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests from Petitioners \1\ and
certain PRC and other companies, in accordance with 19 CFR 351.213(b),
during the anniversary month of April, to conduct a review of certain
activated carbon exporters from the PRC. On May 28, 2010, and June 30,
2010, the
[[Page 23979]]
Department initiated this review with respect to all requested
companies with the exception of ten companies for which Petitioners did
not demonstrate that they had made a reasonable attempt to serve the
request for review as required by the Department in 19 CFR
351.303(f)(3)(ii), nor did they explain satisfactorily why they desired
a review of these ten companies, as required by 19 CFR
351.213(b)(1).\2\
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\1\ Collectively, Norit Americas Inc. (``Norit'') and Calgon
Carbon Corporation.
\2\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 75 FR 29976 (May 28, 2010); see also
Initiation of Antidumping and Countervailing Duty Administrative
Reviews and Requests for Revocation in Part, 75 FR 37759 (June 30,
2010) (collectively, ``Initiation Notices'').
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On June 15, 2010, Petitioners withdrew the request for review with
respect to 157 of the 192 companies under review. On August 11, 2010,
the Department published a notice of rescission in the Federal Register
for those 157 companies for which the request for review was
withdrawn.\3\ On July 8, 2010, Petitioners withdrew the request for
review with respect to an additional 17 companies. On August 23, 2010,
the Department published a second notice of rescission in the Federal
Register for those 17 companies.\4\ Eighteen companies remain subject
to this review.\5\ On July 27, 2010, Ningxia Lingzhou Foreign Trade
Co., Ltd. (``Lingzhou'') submitted a letter certifying it had no
shipments during the period of review (``POR'').\6\ On October 6, 2010,
the Department published a notice \7\ extending the time period for
issuing the preliminary results by 120 days to April 30, 2011.\8\
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\3\ See Certain Activated Carbon From the People's Republic of
China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 48644 (August 11, 2010).
\4\ See Certain Activated Carbon from the People's Republic of
China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 51754 (August 23, 2010).
\5\ These companies are: Beijing Pacific Activated Carbon
Products Co., Ltd., Calgon Carbon (Tianjin) Co., Ltd., Datong
Juqiang Activated Carbon Co., Ltd., Datong Municipal Yungang
Activated Caron Co., Ltd., Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Jacobi Carbons AB,
Ningxia Guanghua Cherishment Activated Carbon Co., Ltd., Ningxia
Huahui Activated Carbon Co., Ltd., Ningxia Lingzhou Foreign Trade
Company, Shanxi DMD Corporation, Shanxi Newtime Co., Ltd., Shanxi
Sincere Industrial Co., Ltd., Shanxi Industry Technology Trading
Co., Ltd., Tangshan Solid Carbon Co., Ltd., Tianjin Jacobi
International Trading Co. Ltd., Tianjin Maijin Industries Co., Ltd.,
and United Manufacturing International (Beijing) Ltd.
\6\ Companies have the opportunity to submit statements
certifying that they did not ship the subject merchandise to the
United States during the POR.
\7\ See Certain Activated Carbon From the People's Republic of
China: Extension of Time Limits for Preliminary Results of the Third
Antidumping Duty Administrative Review, 75 FR 61697 (October 6,
2010).
\8\ Because April 30, 2011, is a Saturday, the actual deadline
for issuing the preliminary results falls on May 2, 2011, the next
business day.
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Albemarle's Status as an Interested Party
On April 30, 2010, Albemarle Corporation (``Albemarle'') requested
a review of Calgon Carbon (Tianjin) Co., Ltd. (``CCT''). On May 27,
2010, Petitioners submitted comments disputing Albemarle's status as a
domestic interested party. On June 2, 2010, the Department issued a
questionnaire to Albemarle requesting further information regarding its
status as a wholesaler of the domestic like product. Albemarle
submitted its response to the Department's questionnaire on June 18,
2010. Petitioners submitted additional comments regarding Albemarle's
response on June 28, 2010. On August 11, 2010, the Department sent an
additional questionnaire to Albemarle requesting further information
regarding its status as a wholesaler of the domestic like product.
Albemarle submitted its response on August 18, 2010. On August 26,
2010, CCT submitted comments in response to Albemarle's additional
questionnaire response, and on August 27, 2010, Norit submitted
comments as well.
The Department considered Petitioners' comments, CCT's comments,
and Albemarle's submissions and determined that Albemarle is a
``wholesaler in the United States of a domestic like product.''
Therefore, under section 771(9)(C) of the Tariff Act of 1930, as
amended (``the Act''), the Department found that Albemarle is a
domestic interested party, and its request for a review of CCT is
proper pursuant to 19 CFR 351.213(b).\9\ We have not received
additional comments regarding Albemarle's status as an interested
party; therefore, we continue to find that Albemarle's request for a
review of CCT was proper.
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\9\ For further discussion of Albemarle's status as a domestic
interested party, see Memorandum to James Doyle, Director, AD/CVD
Operations, Office 9, through Catherine Bertrand, Program Manager,
AD/CVD Operation Office 9, from Katie Marksberry, International
Trade Specialist, AD/CVD Operations, Office 9; Re: Antidumping Duty
Administrative Review of Certain Activated Carbon from the People's
Republic of China: Selection of Additional Mandatory Respondent,
dated September 29, 2010 (``Additional Respondent Selection Memo'').
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Respondent Selection
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter or producer of the
subject merchandise.\10\ However, section 777A(c)(2) of the Act gives
the Department discretion to limit its examination to a reasonable
number of exporters or producers, if it is not practicable to examine
all exporters or producers for which the review is initiated.
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\10\ See also 19 CFR 351.204(c) regarding respondent selection,
in general.
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On May 28, 2010, the Department released CBP data for entries of
the subject merchandise during the POR under administrative protective
order (``APO'') to all interested parties having access to materials
released under APO inviting comments regarding the CBP data and
respondent selection. On June 4, 2010, the Department extended the
deadline for comments regarding the CBP data. The Department received
comments and rebuttal comments between June 7, 2010, and June 14, 2010.
On July 21, 2010, the Department issued its respondent selection
memorandum after assessing its resources, considering the number of
individual exporters of certain activated carbon for which a review had
been requested, and determining that it could reasonably examine two of
the exporters subject to this review.\11\ Pursuant to section
777A(c)(2)(B) of the Act, the Department selected Jacobi Carbons AB
(``Jacobi'') as a mandatory respondent. On September 29, 2010, based on
the determination that Albemarle Corporation is an interested party in
this review, the Department issued an additional respondent selection
memorandum selecting CCT as a mandatory respondent.\12\
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\11\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, from Kabir Archuletta and Jamie Blair-Walker,
International Trade Compliance Analysts, Office 9; Antidumping Duty
Administrative Review of Certain Activated Carbon from the PRC:
Selection of Respondents for Individual Review, dated July 21, 2010.
\12\ See Additional Respondent Selection Memo.
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Petitioners' Allegations of Third-Country Sales Made by Jacobi
On October 12, 2010, and November 1, 2010, Petitioners submitted
comments requesting that the Department require Jacobi to revise its
Section C database to include sales of subject merchandise that
Petitioners allege were sold through Jacobi's affiliate in Sri Lanka.
On November 9, 2010, the Department issued a letter to Petitioners
acknowledging that the Department has the authority to address
allegations of transshipment based on section 781(b) of the Act, which
allows for the prevention of circumvention of
[[Page 23980]]
antidumping duty orders for merchandise completed or assembled in other
foreign countries, and 19 CFR 351.225(h), which states how the
Department handles scope inquiries related to ``products completed or
assembled in other foreign countries,'' in accordance with section
781(b) of the Act. However, the Department concluded that it would not
request Jacobi to revise its Section C database to include sales of
subject merchandise allegedly sold through Jacobi's Sri Lankan
affiliate. As upheld by the Court of International Trade (``CIT'') in
Globe Metallurgical \13\ affirming the Department's remand from Silicon
Metal, \14\ where a party has placed evidence on the record of an
administrative review to support allegations of transshipment involving
third-country processing, it is the Department's practice to consider
such allegations through a scope or anti-circumvention inquiry rather
than within the context of an administrative review.\15\
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\13\ See Globe Metallurgical Inc. v. United States, 722 F. Supp.
2d 1372 (Ct. Int'l Trade Sept. 1, 2010).
\14\ See Silicon Metal from the People's Republic of China,
April 8, 2010, remanded from Globe Metallurgical, Inc. v. United
States, Court No. 08-00290 (December 18, 2009).
\15\ See letter to Calgon Carbon Corporation and Norit Americas
Inc., from James C. Doyle, Director, Office 9, re: Third
Administrative Review of Certain Activated Carbon from the People's
Republic of China, dated November 9, 2010.
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On November 16, 2010, Petitioners filed additional comments asking
the Department to reconsider its decision. Petitioners argued that this
case differs from Globe Metallurgical in a number of ways.
Specifically, Petitioners noted that in this case, unlike in Globe
Metallurgical: (1) The Department has a substantial database of sales
by Jacobi that are subject to review; (2) the third-country supplier is
affiliated with Jacobi and the Department has the ability to require it
to participate; (3) the Department has sufficient time and resources to
examine the additional sales and circumstances; (4) there are suspended
entries upon which the Department can assess antidumping duties; (5)
the question of Jacobi's potential transshipment is best explored
within the context of an administrative review; and (6) the Department
should exercise the authority to examine Jacobi's third-country sales
to ensure that companies do not transship their highest margin sales to
manipulate margins in administrative reviews.
At this time, the Department continues to find that although the
Department does have the authority to investigate allegations of
transshipment within the context of an administrative review, we have
determined that an administrative review is not the best context for
addressing the type of allegations that Petitioners have brought to the
Department. Specifically, we continue to find, as we did in the Globe
Metallurgical remand, that evaluating and verifying additional
information relating to a circumvention allegation creates an
overwhelming burden in an administrative review. Therefore, as
previously stated, it is the Department's practice that where a party
has placed evidence on the record of an administrative review to
support allegations of transshipment involving third-country
processing, a scope or anti-circumvention inquiry is the proper venue
and we will not consider it within the context of an administrative
review. Furthermore, where the allegation concerns transshipment that
does not involve third-country processing, such an allegation should be
directed to CBP, which is the proper authority to investigate claims of
mislabeling country-of-origin. Therefore, although the Department
intends to seek additional information from Jacobi in order to ensure
that its Section C database includes the full universe of its POR sales
of subject merchandise, we are not requiring Jacobi to revise its
Section C questionnaire responses or databases to include sales of
merchandise from Sri Lanka for these preliminary results.\16\
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\16\ However, we will refer Petitioners' transshipment
allegations to CBP.
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Questionnaires
On July 21, 2010, the Department issued its initial non-market
economy (``NME'') antidumping duty questionnaire to the mandatory
respondent Jacobi. On September 30, 2010, the Department issued its
initial NME antidumping duty questionnaire to the mandatory respondent
CCT. CCT and Jacobi timely responded to the Department's initial and
subsequent supplemental questionnaires between August 2010 and February
2011.
Period of Review
The POR is April 1, 2009, through March 31, 2010.
Scope of the Order
The merchandise subject to the order is certain activated carbon.
Certain activated carbon is a powdered, granular, or pelletized carbon
product obtained by ``activating'' with heat and steam various
materials containing carbon, including but not limited to coal
(including bituminous, lignite, and anthracite), wood, coconut shells,
olive stones, and peat. The thermal and steam treatments remove organic
materials and create an internal pore structure in the carbon material.
The producer can also use carbon dioxide gas (CO2) in place
of steam in this process. The vast majority of the internal porosity
developed during the high temperature steam (or CO2 gas)
activated process is a direct result of oxidation of a portion of the
solid carbon atoms in the raw material, converting them into a gaseous
form of carbon.
The scope of the order covers all forms of activated carbon that
are activated by steam or CO2, regardless of the raw
material, grade, mixture, additives, further washing or post-activation
chemical treatment (chemical or water washing, chemical impregnation or
other treatment), or product form. Unless specifically excluded, the
scope of the order covers all physical forms of certain activated
carbon, including powdered activated carbon (``PAC''), granular
activated carbon (``GAC''), and pelletized activated carbon.
Excluded from the scope of the order are chemically activated
carbons. The carbon-based raw material used in the chemical activation
process is treated with a strong chemical agent, including but not
limited to phosphoric acid, zinc chloride, sulfuric acid or potassium
hydroxide, that dehydrates molecules in the raw material, and results
in the formation of water that is removed from the raw material by
moderate heat treatment. The activated carbon created by chemical
activation has internal porosity developed primarily due to the action
of the chemical dehydration agent. Chemically activated carbons are
typically used to activate raw materials with a lignocellulosic
component such as cellulose, including wood, sawdust, paper mill waste
and peat.
To the extent that an imported activated carbon product is a blend
of steam and chemically activated carbons, products containing 50
percent or more steam (or CO2 gas) activated carbons are
within the scope, and those containing more than 50 percent chemically
activated carbons are outside the scope. This exclusion language
regarding blended material applies only to mixtures of steam and
chemically activated carbons.
Also excluded from the scope are reactivated carbons. Reactivated
carbons are previously used activated carbons that have had adsorbed
materials removed from their pore structure after use through the
application of heat, steam and/or chemicals.
Also excluded from the scope is activated carbon cloth. Activated
carbon
[[Page 23981]]
cloth is a woven textile fabric made of or containing activated carbon
fibers. It is used in masks and filters and clothing of various types
where a woven format is required.
Any activated carbon meeting the physical description of subject
merchandise provided above that is not expressly excluded from the
scope is included within the scope. The products subject to the order
are currently classifiable under the Harmonized Tariff Schedule of the
United States (``HTSUS'') subheading 3802.10.00. Although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of the order is dispositive.
Preliminary Partial Rescission
As discussed in the ``Background'' section above, Lingzhou filed a
no shipment certification indicating that it did not export subject
merchandise to the United States during the POR. In order to examine
this claim, we reviewed the CBP data used for respondent selection and
found no discrepancies with the statement made by Lingzhou.
Additionally, we sent an inquiry to CBP asking if any CBP office had
any information contrary to the no shipments claim and requesting CBP
alert the Department of any such information within ten days of
receiving our inquiry. CBP received our inquiry on October 6, 2010. We
have not received a response from CBP with regard to our inquiry which
indicates that CBP did not have information that was contrary to the
claim of Lingzhou. Therefore, because the record indicates that
Lingzhou did not export subject merchandise to the United States during
the POR, we are preliminarily rescinding this administrative review
with respect to this company.\17\
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\17\ See, e.g., Certain Frozen Fish Fillets From the Socialist
Republic of Vietnam: Notice of Preliminary Results and Partial
Rescission of the Third Antidumping Duty Administrative Review, 72
FR 53527, 53530 (September 19, 2007), unchanged in Certain Frozen
Fish Fillets From the Socialist Republic of Vietnam: Final Results
of Antidumping Duty Administrative Review and Partial Rescission, 73
FR 15479, 15480 (March 24, 2008).
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Non-Market Economy 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 that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority.\18\ None of the parties to this proceeding has
contested such treatment. Accordingly, the Department continues to
treat the PRC as an NME and calculated NV in accordance with section
773(c) of the Act, which applies to NME countries. When the Department
investigates imports from an NME country and available information does
not permit the Department to determine NV, pursuant to section 773(a)
of the Act, then, pursuant to section 773(c)(1), the Department
determines NV on the basis of the factors of production (``FOP'')
utilized in producing the merchandise.
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\18\ See 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).
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Surrogate Country
Section 773(c)(4) of the Act, directs the Department to value 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. Pursuant to this statutory
directive, the Department determined that India, Indonesia, the
Philippines, Colombia, Thailand, and Peru are countries comparable to
the PRC in terms of economic development.\19\
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\19\ See Memorandum to Catherine Bertrand, Program Manager, AD/
CVD Operations, Office 9, Import Administration, from Carole
Showers, Director, Office of Policy, Import Administration re:
Request for a List of Surrogate Countries for an Administrative
Review of the Antidumping Duty Order on Certain Activated Carbon
(``Carbon'') from the People's Republic of China (``PRC''), dated
September 21, 2010.
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On September 28, 2010, the Department sent interested parties a
letter inviting comments on surrogate country selection and information
regarding valuing FOPs.\20\ On January 14, 2011, the Department
received information to value FOPs from CCT, Jacobi, and Petitioners.
The Department did not receive any rebuttal surrogate value comments.
All of the surrogate values placed on the record were obtained from
sources in India. No parties provided comments with respect to
selection of a surrogate country.
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\20\ See the Department's Letter to All Interested Parties;
Third Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated September 28, 2010.
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Based on publicly available information placed on the record (e.g.,
production data), the Department determines India to be a reliable
source for surrogate values because India is at a comparable level of
economic development to the PRC pursuant to section 773(c)(4) of the
Act, is a significant producer of subject merchandise, and has publicly
available and reliable data for which to value the respondents' FOPs.
Accordingly, the Department has selected India as the surrogate country
for purposes of valuing the FOPs because it meets the Department's
criteria for surrogate country selection.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the Act provide that, if
necessary information is not available on the record, or if an
interested party: (A) Withholds information that has been requested by
the Department; (B) fails to provide such information in a timely
manner or in the form or manner requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly impedes a proceeding under the
antidumping statute; or (D) provides such information but the
information cannot be verified, the Department shall, subject to
subsection 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from [the Department] for
information, notifies [the Department] that such party is unable to
submit the information in the requested form and manner, together with
a full explanation and suggested alternative forms in which such party
is able to submit the information,'' the Department may modify the
requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) The information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in
[[Page 23982]]
providing the information and meeting the requirements established by
the Department; and (5) the information can be used without undue
difficulties.
However, section 776(b) of the Act states that if the Department
``finds that an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for information
from the administering authority or the Commission, the administering
authority or the Commission * * *, in reaching the applicable
determination under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts otherwise
available.'' \21\ Adverse inferences are appropriate ``to ensure that
the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' Id. An adverse inference
may include reliance on information derived from the petition, the
final determination in the investigation, any previous review, or any
other information placed on the record. See section 776(b) of the Act.
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\21\ See also Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at
870 (1994) (``SAA''), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99.
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Jacobi's Excluded Producers
On August 2, 2010, Jacobi requested to be excused from reporting
FOP data for certain Chinese producers. On August 9, 2010, Petitioners
submitted comments on Jacobi's request. On August 13, 2010, the
Department notified Jacobi that due to the large number of producers
that supplied Jacobi during the POR, Jacobi would be excused from
reporting certain FOP data.\22\ Specifically, the Department did not
require Jacobi to report FOP data for its five smallest producers.
Additionally, the Department notified Jacobi that it was not required
to report FOP data for products that were purchased and not produced by
Jacobi's suppliers, as indicated in Jacobi's August 2, 2010 letter.
Thus, the Department determined that upon Jacobi's acceptance of the
exclusion terms, the Department would determine the appropriate facts
available to apply, in lieu of the actual FOP data, to the
corresponding U.S. sales of subject merchandise.
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\22\ See the Department's Letter to Jacobi dated August 13,
2010.
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CCT's Excluded Producers
On October 14, 2010, CCT requested to be excused from reporting FOP
data for certain Chinese producers as well as FOP data for products
that were produced prior to the POR, but were sold during the POR. On
October 29, 2010, the Department notified CCT that due to the large
number of producers that supplied CCT during the POR, CCT would be
excused from reporting certain FOP data.\23\ Specifically, the
Department did not require CCT to report FOP data for its eight
smallest producers. Additionally, the Department notified CCT that it
was not required to report FOP data for products that were purchased
and not produced by CCT's suppliers, as indicated in CCT's October 14,
2010 letter. Furthermore, the Department notified CCT that it would not
be required to report FOP data for products that were produced prior to
the POR, except for those products blended by CCT during the current
POR. Thus, the Department determined that upon CCT's acceptance of the
exclusion terms, the Department would determine the appropriate facts
available to apply, in lieu of the actual FOP data, to the
corresponding U.S. sales of subject merchandise.
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\23\ See the Department's letter to CCT dated October 29, 2010.
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In accordance with section 776(a)(1) of the Act, the Department is
applying facts available to determine the NV for the sales
corresponding to the FOP data that Jacobi and CCT were excused from
reporting. As facts available, the Department is applying the
calculated average normal value of Jacobi and CCT's reported sales to
the sales produced by the excluded producers. These issues are
addressed in separate company-specific memoranda where a detailed
explanation of the facts available calculation is provided.\24\
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\24\ See Memorandum to Catherine Bertrand, Program Manager, AD/
CVD Operations, Office 9, from Katie Marksberry, Case Analyst, AD/
CVD Operations, Office 9: Preliminary Results Analysis Memorandum
for Jacobi Carbons AB in the Antidumping Duty Administrative Review
of Certain Activated Carbon from the People's Republic of China,
dated concurrently with this notice (``Jacobi Prelim Analysis
Memo''); see also Memorandum to Catherine Bertrand, Program Manager,
AD/CVD Operations, Office 9, from Bob Palmer, Case Analyst, AD/CVD
Operations, Office 9: Preliminary Results Analysis Memorandum for
Calgon Carbon (Tianjin) Co. in the Antidumping Duty Administrative
Review of Certain Activated Carbon from the People's Republic of
China, dated concurrently with this notice (``CCT Prelim Analysis
Memo'').
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Separate Rates
A designation of a country as an NME remains in effect until it is
revoked by the Department.\25\ 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.\26\
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\25\ See section 771(18)(c)(i) of the Act.
\26\ See 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, 53080 (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).
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In the Initiation Notices, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME reviews.\27\ It is the Department's policy
to assign all exporters of merchandise subject to investigation 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.\28\ Exporters can demonstrate this independence
through the absence of both de jure and de facto government control
over export activities.\29\ The Department analyzes each entity
exporting the subject merchandise under a test arising from the 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 (``ME''), then a separate rate analysis is not
necessary to determine whether it is independent from government
control.\30\
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\27\ See Initiation Notices.
\28\ See id.
\29\ See id.
\30\ 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).
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Excluding the companies selected for individual review, the
Department received separate rate applications or certifications from
the following companies: Beijing Pacific Activated Carbon Products Co.,
Ltd.; Datong Municipal Yunguang Activated Carbon Co., Ltd.; Ningxia
Guanghua Cherishment Activated Carbon Co., Ltd.; Ningxia Huahui
Activated Carbon Co., Ltd. (``Huahui''); Shanxi DMD Corporation; Shanxi
Sincere Industrial Co., Ltd.; Shanxi Industry Technology Trading Co.,
Ltd.; Tangshan Solid Carbon Co., Ltd.; and Tianjin Maijin Industries
Co., Ltd.
Additionally, the Department received completed responses to the
[[Page 23983]]
Section A portion of the NME questionnaire from CCT and Jacobi, which
contained information pertaining to the companies' eligibility for a
separate rate. However, Datong Juqiang Activated Carbon Co., Ltd.;
Datong Yunguang Chemicals Plant; Hebei Foreign Trade and Advertising
Corporation; Shanxi Newtime Co., Ltd.; and United Manufacturing
International (Beijing) Ltd.; companies upon which the Department
initiated administrative reviews that have not been rescinded, did not
submit either a separate-rate application or certification. Therefore,
because Datong Juqiang Activated Carbon Co., Ltd.; Datong Yunguang
Chemicals Plant; Hebei Foreign Trade and Advertising Corporation;
Shanxi Newtime Co., Ltd.; and United Manufacturing International
(Beijing) Ltd. did not demonstrate their eligibility for separate rate
status in a timely manner, we have determined it is appropriate to
consider these companies as part of the PRC-wide entity.
Ningxia Huahui Activated Carbon Co., Ltd.'s Status as a Separate Rate
Company
On December 23, 2010, Huahui submitted its separate rate
application to the Department.\31\ On January 3, 2011, Petitioners
submitted comments on Huahui's application.\32\ On January 21, 2011,
the Department issued a supplemental questionnaire to Huahui regarding
its separate rate application, and on February 22, 2011, Huahui
submitted its response to the Department.\33\ On March 3, 2011,
Petitioners submitted additional comments to the Department regarding
Huahui's application for a separate rate.\34\ On March 11, 2011, the
Department issued a second supplemental questionnaire to Huahui
regarding its separate rate application, and on March 23, 2011, Huahui
submitted a response to the Department.\35\ On April 5, 2011,
Petitioners submitted additional comments on Huahui's second
supplemental questionnaire.
---------------------------------------------------------------------------
\31\ See Separate Rate Application of Ningxia Huahui Activated
Carbon Co., Ltd., dated December 23, 2010, (``Huahui Separate Rate
Application'').
\32\ See Letter from Petitioners to the Department re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Petitioners'
Initial Comments on Ningxia Huahui's Separate Rate Application,
dated January 3, 2011.
\33\ See Huahui's Supplemental Questionnaire Regarding the
December 23, 2010 Separate Rate Application of Ningxia Huahui
Activated Carbon Co., Ltd., dated February 22, 2011.
\34\ See Letter from Petitioners to the Department re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Petitioners'
Pre-Preliminary Comments on Ningxia Huahui's Separate Rate
Application, dated March 3, 2011.
\35\ See Huahui's Second Supplemental Questionnaire Regarding
the December 23, 2010 Separate Rate Application of Ningxia Huahui
Activated Carbon Co., Ltd., dated March 23, 2011 (``Huahui Second
Separate Rate Supplemental'').
---------------------------------------------------------------------------
The Department has analyzed Huahui's separate rate application and
supplemental responses and, for these preliminarily results, we find
that Huahui has demonstrated both de jure and de facto independence
from the PRC government with respect to its export activities.
Consistent with the Department's requirements on exporters requesting a
separate rate, Huahui placed numerous documents on the record that have
been examined for these preliminary results. Specifically, Huahui
demonstrated an absence of de jure government control by the absence of
restrictive stipulations associated with its business license and
export certificate of approval, and through submission of pertinent
legislative enactments that protect the operational and legal
independence of companies incorporated in the PRC.\36\ With respect to
de facto government control, Huahui: (1) Certified that its export
prices are neither set by or subject to the approval of a government
agency; \37\ (2) placed on the record documents that demonstrate an
absence of government control over the negotiation and signing of
contracts including documents related to price negotiation for U.S.
sales, and complete sales and export documentation; \38\ (3) certified
that it retains the proceeds of its export sales and makes independent
decisions regarding the disposition of profits and financing of losses
and provided financial statements with record evidence from its
Articles of Association demonstrating the independent distribution of
profit; \39\ and (4) certified that it has autonomy from all levels of
government and government entities in making decisions regarding the
selection of management and placed on the record its Articles of
Association, a number of board resolutions and an internal management
selection proposal, which demonstrate the independent selection of
management by the Board of Directors.\40\
---------------------------------------------------------------------------
\36\ See Huahui Separate Rate Application at 8-11 and Exhibits 5
and 6.
\37\ See id. at 17.
\38\ See id. at Exhibits 2 and 3.
\39\ See id. at 20 and Exhibits 9 and 11.
\40\ See id. at 13 and Exhibit 13; see also Huahui Second
Separate Rate Supplemental at 2-3 and Exhibits 1 and 2.
---------------------------------------------------------------------------
Although Petitioners have argued that Huahui should be denied a
separate rate because it does not fulfill the criteria for establishing
autonomy from de facto government control of its selection of
management and disposition of profits, the evidence on the record of
this review demonstrates that Huahui does have the ability, and has
exercised its ability, to appoint its managers and control the
disposition of its profits through its Board of Directors. With respect
to the selection of management, the Department has previously found
that management selected and appointed by an independent board of
directors is sufficiently removed from government-controlled
shareholders for the purpose of demonstrating the absence of de facto
government control.\41\ Furthermore, the Articles of Association
submitted by Huahui clearly state that its shareholders have the right
to approve profit distributions by voting according to the number of
shares owned.\42\ In this case, Petitioners have provided information
that addresses speculative and potential control by government entities
over Huahui, which the Department has found is not sufficient evidence
to support denying a separate rate.\43\ There is no evidence on the
record of actual government control of individual export decisions of
Huahui during the POR, or evidence demonstrating that government owned
or controlled shareholders actually controlled the selection of
Huahui's management in greater proportion to their proportion of the
voting shares. Furthermore, the Department has previously determined
that government ownership alone does not warrant denying a company a
separate rate.\44\ Therefore, based on an analysis of all of the
information placed on the record of this review by Huahui and
Petitioners, we preliminarily find that Huahui is eligible for a
separate rate, and we are granting Huahui separate rate status for
these preliminary results.
---------------------------------------------------------------------------
\41\ 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) and accompanying
Issues and Decision Memorandum at Comment 25.
\42\ See Huahui Second Separate Rate Supplemental at 9; see also
Huahui Separate Rate Application at Exhibit 9.
\43\ See Certain Circular Welded Carbon Quality Steel Line Pipe
from the People's Republic of China: Final Determination of Sales at
Less Than Fair Value, 74 FR 14514 (March 31, 2009), and accompanying
Issues and Decision Memorandum at Comment 11.
\44\ See e.g. Lightweight Thermal Paper From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 57329 (October 2, 2008) and accompanying Issues and
Decision Memorandum at Comment 7.
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[[Page 23984]]
Separate Rate Recipients
1. Wholly Foreign-Owned
Jacobi reported that it is wholly owned by a company located in an
ME country, Sweden.\45\ Additionally, CCT reported that it is wholly
owned by a company located in the United States.\46\ Therefore, there
is no PRC ownership of Jacobi or CCT and, because the Department has no
evidence indicating that Jacobi or CCT are under the control of the
PRC, a separate rates analysis is not necessary to determine whether
they are independent from government control.\47\ Additionally, one of
the exporters under review not selected for individual review, Tangshan
Solid Carbon Co., Ltd., demonstrated in its separate-rate certification
that it is 100 percent market-economy foreign owned.\48\ Accordingly,
the Department has preliminarily granted separate rate status to
Jacobi, CCT, and Tangshan Solid Carbon Co. Ltd.
---------------------------------------------------------------------------
\45\ See Jacobi's Section A Questionnaire Response dated August
11, 2010, at 3.
\46\ See CCT's Section A Questionnaire Response dated October
27, 2010 at A-2.
\47\ See Brake Rotors From the People's Republic of China:
Preliminary Results and Partial Rescission of the Fourth New Shipper
Review and Rescission of the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001), unchanged in Brake
Rotors From the People's Republic of China: Final Results and
Partial Rescission of Fourth New Shipper Review and Rescission of
Third Antidumping Duty Administrative Review, 66 FR 27063 (May 16,
2001); Notice of Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People's Republic of China, 64
FR 71104 (December 20, 1999).
\48\ See Tangshan Solid Carbon Co. Ltd.'s Separate Rate
Certification dated July 27, 2010, at Attachment 1.
---------------------------------------------------------------------------
2. Joint Ventures Between Chinese and Foreign Companies or Wholly
Chinese-Owned Companies
Eight \49\ of the separate rate applicants in this administrative
review stated that they are either joint ventures between Chinese and
foreign companies or are wholly Chinese-owned companies. In accordance
with its practice, the Department has analyzed whether the separate-
rate applicants have demonstrated the absence of de jure and de facto
governmental control over their respective export activities.
---------------------------------------------------------------------------
\49\ These companies are: Beijing Pacific Activated Carbon
Products Co., Ltd.; Datong Municipal Yunguang Activated Carbon Co.,
Ltd.; Ningxia Guanghua Cherishment Activated Carbon Co., Ltd.;
Ningxia Huahui Activated Carbon Co., Ltd.; Shanxi DMD Corporation;
Shanxi Sincere Industrial Co., Ltd.; Shanxi Industry Technology
Trading Co., Ltd.; and Tianjin Maijin Industries Co., Ltd.
---------------------------------------------------------------------------
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.\50\ The evidence provided by the eight separate rate
applicants 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.\51\
---------------------------------------------------------------------------
\50\ See Sparklers, 56 FR at 20589.
\51\ See, e.g., Shanxi Industry Technology Trading Co., Ltd.'s
Separate Rate Certification dated July 21, 2010, at 8; and Shanxi
DMD Corporation's Separate Rate Certification dated July 21, 2010,
at 8.
---------------------------------------------------------------------------
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.\52\ 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
the eight separate rate applicants 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 companies' use of export revenue.\53\
---------------------------------------------------------------------------
\52\ See Silicon Carbide, 59 FR at 22586-87; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May
8, 1995).
\53\ See, e.g., Shanxi Industry Technology Trading Co., Ltd.'s
Separate Rate Certification dated July 21, 2010, at 8-9; and Shanxi
DMD Corporation's Separate Rate Certification dated July 21, 2010,
at 8-9. Therefore, the Department preliminarily finds that Huahui
and nine separate-rate applicants have established that they qualify
for a separate rate under the criteria established by Silicon
Carbide and Sparklers.
---------------------------------------------------------------------------
Rate for Non-Selected Companies
As stated previously, this review covers eighteen companies. Of
those, the Department selected two exporters, CCT and Jacobi, as
mandatory respondents. As stated above, five companies, Datong Juqiang
Activated Carbon Co., Ltd.; Datong Yunguang Chemicals Plant; Hebei
Foreign Trade and Advertising Corporation; Shanxi Newtime Co., Ltd.;
and United Manufacturing International (Beijing) Ltd. are part of the
PRC-Wide entity and, thus, are not entitled to a separate rate.
Additionally, we are preliminarily rescinding the review with respect
to Ningxia Lingzhou Foreign Trade Co., Ltd. because we determined that
it had no shipments of subject merchandise to the United States during
the POR. The remaining eight companies submitted timely information as
requested by the Department and remain subject to this review as
cooperative separate rate respondents.
The statute and the Department's regulations do not address the
establishment of a rate to be applied to individual companies not
selected for examination where the Department limited its examination
in an administrative review pursuant to section 777A(c)(2) of the Act.
Generally we have looked to section 735(c)(5) of the Act, which
provides instructions for calculating the all-others rate in an
investigation, for guidance when calculating the rate for respondents
we did not examine in an administrative review. Section 735(c)(5)(A) of
the Act instructs that we are not to calculate an all-others rate using
any zero or de minimis margins or any margins based entirely on facts
available. Accordingly, the Department's practice in this regard, in
reviews involving limited respondent selection based on exporters
accounting for the largest volume of trade, has been to average the
rates for the selected companies, excluding zero and de minimis rates
and rates based entirely on facts available.\54\ Section 735(c)(5)(B)
[[Page 23985]]
of the Act also provides that, where all margins are zero, de minimis,
or based entirely on facts available, we may use ``any reasonable
method'' for assigning the rate to non-selected respondents, including
``averaging the estimated weighted average dumping margins determined
for the exporters and producers individually investigated.'' In this
instance, consistent with our practice, we have preliminarily
established a margin for the separate rate respondents based on the
rate we calculated for the mandatory respondent whose rate was not de
minimis.\55\ For the PRC-wide entity, we have assigned the entity's
current rate and only rate ever determined for the entity in this
proceeding.
---------------------------------------------------------------------------
\54\ See Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 73 FR 52273, 52275
(September 9, 2008) and accompanying Issues and Decision Memorandum
at Comment 6.
\55\ See, e.g., Forth Administrative Review of Certain Frozen
Warrnwater Shrimp From the People's Republic of China: Preliminary
Results, Preliminary Partial Rescission of Antidumping Duty
Administrative Review and Intent Not To Revoke, In Part, 75 FR 11855
(March 12, 2010).
---------------------------------------------------------------------------
Date of Sale
CCT and Jacobi reported the invoice date as the date of sale
because they claim that for their U.S. sales of subject merchandise
made during the POR, the material terms of sale were established on the
invoice date. In accordance with 19 CFR 351.401(i) and the Department's
long-standing practice of determining the date of sale,\56\ the
Department preliminarily determines that the invoice date is the most
appropriate date to use as CCT's and Jacobi's date of sale.
---------------------------------------------------------------------------
\56\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Frozen and Canned Warmwater Shrimp From
Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues
and Decision Memorandum at Comment 10.
---------------------------------------------------------------------------
Fair Value Comparisons
To determine whether sales of certain activated carbon to the
United States by CCT and Jacobi were made at less than normal value,
the Department compared constructed export price (``CEP'') to NV, as
described in the ``U.S. Price,'' and ``Normal Value'' sections below.
U.S. Price
Constructed Export Price
For all of CCT and Jacobi's sales, the Department based U.S. price
on CEP in accordance with section 772(b) of the Act, because sales of
Chinese-origin merchandise were made on behalf of the companies located
in the PRC by a U.S. affiliate to unaffiliated purchasers in the United
States. For these sales, the Department based CEP on prices to the
first unaffiliated purchaser in the United States. Where appropriate,
the Department made deductions from the starting price (gross unit
price) for foreign movement expenses, international movement expenses,
U.S. movement expenses, and appropriate selling adjustments, in
accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, the Department
also deducted those selling expenses associated with economic
activities occurring in the United States. The Department deducted,
where appropriate, commissions, inventory carrying costs, interest
revenue, credit expenses, warranty expenses, and indirect selling
expenses. For those expenses that were provided by an ME provider and
paid for in an ME currency, the Department used the reported expense.
Due to the proprietary nature of certain adjustments to U.S. price, for
a detailed description of all adjustments made to U.S. price for each
company, see the company specific analysis memoranda, dated
concurrently with this notice.
CCT also requested that the Department apply the ``special rule''
for merchandise with value added after importation and excuse CCT from
reporting U.S. re-sales of subject merchandise further processed by
Calgon Carbon Corporation (``CCC''), CCT's U.S. parent company, in the
United States and the U.S. further-processing cost information
associated with those re-sales. CCT made this request with respect to
all categories of U.S. sales with further manufacturing and provided
further-processing cost data.\57\
---------------------------------------------------------------------------
\57\ See CCT's Section A Questionnaire Response dated October
27, 2010, at Exhibit 11; see also CCT's Supplemental Section A
Questionnaire Response dated December 6, 2010 at Exhibit A-14.
---------------------------------------------------------------------------
The Department preliminarily determines to apply the ``special
rule'' under section 772(e) of the Act for merchandise with value added
after importation to the sales made by CCC in the United States.
Section 772(e) of the Act provides that, when the subject merchandise
is imported by an affiliated person and the value-added in the United
States by the affiliated person is likely to exceed substantially the
value of the subject merchandise, the Department shall determine the
CEP for such merchandise using the price to an unaffiliated party of
identical or other subject merchandise if there is a sufficient
quantity of sales to provide a reasonable basis for comparison, and the
Department determines that the use of such sales is appropriate. If
there is not a sufficient quantity of such sales or if the Department
determines that using the price to an unaffiliated party of identical
or other subject merchandise is not appropriate, the Department may use
any other reasonable basis to determine the CEP.
To determine whether the value-added is likely to exceed
substantially the value of the subject merchandise, the Department
estimated the value added based on the difference between the averages
of the prices charged to the first unaffiliated purchaser for the
merchandise as sold in the United States and the averages of the prices
paid for the subject merchandise by the affiliated purchaser, CCC.
Based on the information provided by CCT and the Department's analysis
of this information, the Department determined that the estimated value
added in the United States by CCC accounted for at least 65 percent of
the price charged to the first unaffiliated customer for the
merchandise as sold in the United States.\58\ Therefore, the Department
preliminarily determines that the value added is likely to exceed
substantially the value of the subject merchandise.
---------------------------------------------------------------------------
\58\ See 19 CFR 351.402(c); see also Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From France,
Germany, Italy, Japan, Sweden, and the United Kingdom: Final Results
of Antidumping Duty Administrative Reviews and Revocation of Orders
in Part, 66 FR 36551, 36555 (July 12, 2001) and accompanying Issues
and Decision Memorandum at Comment 28 (``AFBs'').
---------------------------------------------------------------------------
For CCT, the Department preliminarily determines that the remaining
quantity of sales of identical or other subject merchandise to
unaffiliated persons are sufficient to provide a reasonable basis for
comparison and that the use of these sales is appropriate as a basis
for calculating margins of dumping on the further processed
merchandise.\59\
---------------------------------------------------------------------------
\59\ See section 772(e) of the Act; see also AFBs; Memorandum to
James C. Doyle, Director, AD/CVD Operations, Office 9, through
Catherine Bertrand, Program Manager, AD/CVD Operations, Office 9,
from Bob Palmer, Case Analyst, Office 9: Special Rule for
Merchandise with Value Added after Importation for the Antidumping
Duty Administrative Review of Certain Activated Carbon from the
People's Republic of China, dated January 5, 2011 (``Special Rule
Memo'').
---------------------------------------------------------------------------
Accordingly, the Department has determined to apply the ``special
rule'' to CCT's sales of subject merchandise that were further
processed by CCC in the United States. Furthermore, the Department has
excused CCT from reporting these U.S. sales and the U.S. further-
processing cost information associated with the sales. In the Special
Rule Memo, the Department stated that it would apply the weight-
averaged margin from CCT's non-further manufactured U.S. sales to the
quantity
[[Page 23986]]
of CCC's U.S. further manufactured sales.\60\ However, the Department
intended to explain that it would apply the weight-averaged margin
calculated based upon CCT's U.S. sales to the first unaffiliated
customer as the surrogate margin to the transactions to which the
``special rule'' applied. The latter methodology was applied in
Activated Carbon AR 1, when we last granted CCT this ``special rule''
exemption.\61\ Therefore, for these preliminary results, we are
applying the weight-averaged margin as was intended.
---------------------------------------------------------------------------
\60\ See Special Rule Memo at 5.
\61\ See First Administrative Review of Certain Activated Carbon
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 FR 57995 (November 10, 2009)
(``Activated Carbon AR1'') and accompanying Issues and Decisions
Memorandum at Comment 7; see also CCT Prelim Analysis Memo.
---------------------------------------------------------------------------
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using an FOP methodology if the merchandise is
exported from an NME and the information does not permit the
calculation of NV using home-market prices, third-country prices, or
constructed value under section 773(a) of the Act. The Department 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.
FOP Reporting Exclusions
As stated above, the Department granted exclusions for certain
nominal producers to be excused from providing FOP data for CCT and
Jacobi. As the corresponding U.S. sales of the subject merchandise
supplied by the excused producers were reported in the U.S. sales
listing, the Department has applied the calculated average normal value
of the subject merchandise produced by CCT and Jacobi, respectively, as
facts available, to those sales observations associated with the
excluded producers.\62\
---------------------------------------------------------------------------
\62\ See Jacobi Prelim Analysis Memo; see also CCT Prelim
Analysis Memo.
---------------------------------------------------------------------------
CCT's Control Number (``CONNUM'') Reporting Methodology
CCT has reported that neither it nor its individual producers can
provide FOP data based on all 15 product characteristics which comprise
the CONNUM.\63\ Rather, CCT and its individual producers have reported
FOP consumption data based on 11 of the 15 CONNUM product
characteristics which CCT tracks through its product codes and is the
basis on which CCT reported its weighted-average calculation of its
producers' FOP consumption.\64\ However, CCT states that it and its
producers, in the ordinary course of business, need not, and do not,
track data during the production process for the remaining four product
characteristics, but test for these four characteristics prior to
shipment.\65\ CCT has provided detailed and potentially verifiable
information on the standards used in the ordinary course of business by
CCT and its producers.\66\ In addition, CCT has provided samples of FOP
consumption data, reconciliation worksheets, and FOP source
documentation used in the ordinary course of business by its
producers.\67\ CCT has explained that each of its producers maintains
records on the consumption of all raw materials. Further, CCT states
that there is no way to link all 15 product characteristics of the
finished products to the material inputs throughout the production
process because each of its producers sets out to produce a particular
product based on its own specific product definition. Production
inputs, consumption quantities and other relevant data are only tracked
on this basis. CCT notes that its producers do not track data during
the production process for four product characteristics: apparent
density, hardness, abrasion, and ash content.\68\ CCT further explains
that these four product characteristics are not relevant to the
production of each producer's products and none of the producers tracks
production inputs, consumption quantities or other relevant data on the
basis of these four characteristics.\69\ Moreover, CCT states the four
product characteristics above are testing specifications which are
expressed in terms of minimum and maximum values, which correspond to a
range of potential actual characteristics for any particular product
produced; it is therefore sufficient to ensure that each of the four
characteristics is within the established characteristic-specific
range. As such, during the production process none of the companies
tracks the specific value for each of these four characteristics.\70\
However, CCT states that it has provided its FOP data based on as much
detail as the accounting books and records of itself and its producers'
would allow.\71\ Therefore, the Department preliminarily determines
that CCT's FOP reporting methodology is sufficient to preliminarily
calculate an accurate dumping margin.
---------------------------------------------------------------------------
\63\ See CCT's Supplemental Section D Questionnaire Response
dated January 14, 2011, at 3.
\64\ Those 11 product characteristics are: (1) Physical
material; (2) form; (3) oversize mesh; (4) undersize mesh; (5) PAC
mesh; (6) particle size; (7) pellet diameter; (8) carbon
tetrachloride (``CTC''); (9) iodine; (10) wash type; and (11)
impregnation. See CCT's Supplemental Section D Questionnaire
Response dated January 14, 2011, at 3.
\65\ See CCT's Supplemental Section D Questionnaire Response
dated January 14, 2011, at 4.
\66\ See e.g., CCT's Supplemental Section D Questionnaire
Responses dated January 6 and 14, 2011.
\67\ See e.g., CCT's Supplemental Section D Questionnaire
Response dated January 6, 2010, at HQ-12 and Exhibit HQ-26, HQ-31,
HQ-34 and JB-20; see also e.g., CCT's Supplemental Section D
Questionnaire Response dated January 14, 2010, at 7 and Exhibit DCC-
17, DCC-18, DCC-21 and NC-23.
\68\ We note that apparent density, abrasion and ash content are
three product characteristics are components of the 15 product
characteristic CONNUM. Additionally, one product characteristic CTC
test (CTESTU) indicates where CTC test or another test was used.
\69\ See CCT's Supplemental Section D Questionnaire Response
dated January 14, 2011 at 3-6.
\70\ See id.
\71\ See id.
---------------------------------------------------------------------------
Petitioner Norit argues that in Activated Carbon AR1, the
Department has previously notified CCT that it must provide CONNUM-
specific FOP data in subsequent reviews, but it has continued to report
FOP data on its product codes.\72\ While we note that that in Activated
Carbon AR1, we placed CCT on notice that it should begin to track all
records generated in the normal course of business that would allow CCT
and its producers to report FOP consumption in future segments of this
proceeding taking into account as many CONNUM characteristics as
possible, we further note that because our final results of Activated
Carbon AR1 occurred eight months into the current POR, it is
unreasonable to expect CCT and its producers to adjust the manner in
which they maintain their records in order to report FOPs on a CONNUM-
specific basis for the remaining four months of the current POR.\73\
However, we are providing a second and final notice that CCT and other
respondents must maintain their records in a manner that they can
report FOPs on a
[[Page 23987]]
CONNUM-specific basis for future reviews.\74\
---------------------------------------------------------------------------
\72\ See Letter from Petitioners to the Department re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Norit
America's Comments on CCT's Questionnaire Response, dated December
10, 2010.
\73\ See Activated Carbon AR1 and accompanying Issues and
Decisions Memorandum at Comment 4; see also Certain Circular Welded
Carbon Quality Steel Line Pipe from the People's Republic of China:
Final Determination of Sales at Less Than Fair Value, 74 FR 14514
(March 31, 2009) and accompanying Issues and Decision Memorandum at
Comment 1.
\74\ See Certain Tissue Paper Products from the People's
Republic of China: Final Results and Final Rescission, in Part, of
Antidumping Duty Administrative Review, 73 FR 58113 (October 6,
2008) and accompanying Issues and Decision Memorandum at Comment 2.
---------------------------------------------------------------------------
Factor Valuations
In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to value the FOPs, but when
a producer sources an input from an ME country and pays for it in an ME
currency, the Department may value the factor using the actual price
paid for the input.\75\ During the POR, Jacobi reported that it
purchased certain inputs from an ME supplier and paid for the inputs in
an ME currency.\76\ The Department has a rebuttable presumption that ME
input prices are the best available information for valuing an input
when the total volume of the input purchased from all ME sources during
the period of investigation or review exceeds 33 percent of the total
volume of the input purchased from all sources during the period.\77\
In these cases, unless case-specific facts provide adequate grounds to
rebut the Department's presumption, the Department will use the
weighted average ME purchase price to value the input. Alternatively,
when the volume of an NME firm's purchases of an input from ME
suppliers during the period is below 33 percent of its total volume of
purchases of the input during the period, but where these purchases are
otherwise valid and there is no reason to disregard the prices, the
Department will weight-average the ME purchase price with an
appropriate surrogate value according to their respective shares of the
total volume of purchases, unless case-specific facts provide adequate
grounds to rebut the presumption.\78\ When a firm has made ME input
purchases that may have been dumped or subsidized, are not bona fide,
or are otherwise not acceptable for use in a dumping calculation, the
Department will exclude them from the numerator of the ratio to ensure
a fair determination of whether valid ME purchases meet the 33-percent
threshold.\79\
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\75\ See Lasko Metal Products, Inc. v. United States, 43 F.3d
1442, 1445-1446 (Fed. Cir. 1994) (affirming the Department's use of
market-based prices to value certain FOPs).
\76\ See Jacobi's Section D Questionnaire Response dated
September 17, 2010, at Exhibit C, page D-9.
\77\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717-18 (October 19, 2006) (``Antidumping
Methodologies'').
\78\ See Antidumping Methodologies.
\79\ See id.
---------------------------------------------------------------------------
The Department used the Indian Import Statistics to value the raw
material and packing material inputs that CCT and Jacobi used to
produce the subject merchandise under review during the POR, except
where listed below. With regard to both the Indian import-based
surrogate values and the ME input values, the Department has
disregarded prices that the Department has reason to believe or suspect
may be subsidized. The Department has reason to believe or suspect that
prices of inputs from Indonesia, South Korea, and Thailand may have
been subsidized. The Department has 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.\80\ The
Department is 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.\81\ Rather, the Department
bases its decision on information that is available to it at the time
it makes its determination.\82\ Therefore, the Department has not used
prices from these countries in calculating the Indian import-based
surrogate values. Additionally, the Department disregarded prices from
NME countries. Finally, imports that were labeled as originating from
an ``unspecified'' country were excluded from the average value, as the
Department could not be certain that they were not from either an NME
country or a country with general export subsidies.\83\
---------------------------------------------------------------------------
\80\ 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), 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); China Nat'l
Machinery Import & Export Corp. v. United States, 293 F. Supp. 2d
1334 (CIT 2003), as affirmed by the Federal Circuit, 104 Fed. Appx.
183 (Fed. Cir. 2004).
\81\ 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; see also Preliminary
Determination of Sales at Less Than Fair Value: Coated Free Sheet
Paper from the People's Republic of China, 72 FR 30758, 30763 n.6
(June 4, 2007), unchanged in Final Determination of Sales at Less
Than Fair Value: Coated Free Sheet Paper from the People's Republic
of China, 72 FR 60632 (October 25, 2007).
\82\ 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).
\83\ See id.
---------------------------------------------------------------------------
In accordance with section 773(c) of the Act, for subject
merchandise produced by CCT and Jacobi, the Department calculated NV
based on the FOPs reported by CCT and Jacobi for the POR. The
Department used data from the Indian Import Statistics and other
publicly available Indian sources in order to calculate surrogate
values for CCT's and Jacobi's FOPs (direct materials, energy, and
packing materials) and certain movement expenses. To calculate NV, the
Department multiplied the reported per-unit factor quantities by
publicly available Indian surrogate values (except as noted below). The
Department's practice when selecting the best available information for
valuing FOPs is to select, to the extent practicable, surrogate values
which are product-specific, representative of a broad market average,
publicly available, contemporaneous with the POR and exclusive of taxes
and duties.\84\
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\84\ See, e.g., Electrolytic Manganese Dioxide From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 48195 (August 18, 2008) and accompanying Issues and
Decision Memorandum at Comment 2.
---------------------------------------------------------------------------
As appropriate, the Department adjusted input prices by including
freight costs to render the prices delivered prices. 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. This adjustment is in accordance with the decision of the
Federal Circuit in Sigma Corp. v. United States, 117 F.3d 1401, 1408
(Fed. Cir. 1997). For a detailed description of all surrogate values
used for CCT and Jacobi, see Memorandum to the File through Catherine
Bertrand, Program Manager, Office 9, from Katie Marksberry, Case
Analyst; Re: Third Administrative Review of Certain Activated Carbon
from the People's Republic of China: Surrogate Values for the
Preliminary Results, dated concurrently with this notice (``Prelim
Surrogate Value Memo'').
In those instances where the Department could not obtain publicly
available information contemporaneous to the POR with which to value
factors, the Department adjusted the surrogate values using, where
appropriate, the Indian Wholesale Price Index as published in the
International Financial Statistics of the International Monetary Fund,
a printout of which is attached to
[[Page 23988]]
the Prelim Surrogate Value Memo at Exhibit 2. Where necessary, the
Department adjusted surrogate values for inflation, exchange rates, and
taxes, and the Department converted all applicable items to a per-
kilogram or per-metric ton basis.
For bituminous coal used as a feedstock in the production of the
subject merchandise, the Department used Indian import prices for
coking coal, because the respondents reported using low-ash content
bituminous coal as a feedstock in the production of the subject
merchandise and Coal India Limited (``CIL'') data do not provide price
data for low-ash content bituminous coal. See Prelim Surrogate Value
Memo. The Department used CIL data to value steam coal and bituminous
coal used as an energy source, where the manufacturers provided useful
heat values (``UHV'') and ash contents of their bituminous energy coal
and steam coal. The Department finds that CIL data have specific grades
of non-coking energy coal, measured in UHV, which correspond to the
types of steam and bituminous coal used by the respondents as energy
coals. Therefore, CIL is more specific to the reported input. The
Department used CIL's prices dated from December 12, 2007, effective
throughout the majority of the POR. For further details regarding the
Department's use of CIL data, see Prelim Surrogate Value Memo.
The Department 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. 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.\85\
---------------------------------------------------------------------------
\85\ See Prelim Surrogate Value Memo.
---------------------------------------------------------------------------
Because water is essential to the production process of the subject
merchandise, the Department is considering water to be a direct
material input, and not as overhead, and valued water with a surrogate
value according to our practice.\86\ The Department valued water using
data from the Maharashtra Industrial Development Corporation (http://www.midcindia.org) as it includes a wide range of industrial water
tariffs. This source provides 386 industrial water rates within the
Maharashtra province from April 2009 through June 2009, of which 193
for the ``inside industrial areas'' usage category and 193 for the
``outside industrial areas'' usage category.\87\
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\86\ See 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 Issues and Decision Memorandum at Comment 11.
\87\ See Prelim Surrogate Value Memo at 8-9.
---------------------------------------------------------------------------
Consistent with our practice in previous reviews, the Department
calculated the surrogate value for purchased steam based upon the April
2008 through March 2009 financial statement of Hindalco Industries
Limited.\88\
---------------------------------------------------------------------------
\88\ See Jacobi's Surrogate Value Comments: Certain Activated
Carbon form China, dated January 14, 2011, at Exhibit SV-7.
---------------------------------------------------------------------------
The Department 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
website contains inland freight truck rates between many large Indian
cities.\89\
---------------------------------------------------------------------------
\89\ See Prelim Surrogate Value Memo at Attachment 8.
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To value brokerage and handling, the Department used a price list
of export procedures necessary to export a standardized cargo of goods
in India. The price list is compiled based on a survey case study of
the procedural requirements for trading a standard shipment of goods by
ocean transport in India that is published in Doing Business 2010:
India, published by the World Bank.\90\
---------------------------------------------------------------------------
\90\ See id. at Attachment 9.
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To value factory overhead, selling, general, and administrative
(``SG&A'') expenses, and profit, the Department used the average of the
audited financial statements of two Indian activated carbon producing
companies: Kalpalka Chemicals Ltd. for FY 2007-2008 (``Kalpalka'') and
Quantum Active Carbon Pvt. Ltd. (``Quantum'') for 2007-2008.\91\
---------------------------------------------------------------------------
\91\ Both the FY 07-08 financial statements for Quantum and the
FY 07-08 financial statements for Kalpalka Chemicals Ltd. were
placed on the record by Petitioners. See Prelim Surrogate Value
Memo.
---------------------------------------------------------------------------
Jacobi submitted the 2009-2010 financial statements of Adsorbent
Carbons Pvt. Ltd. (``Adsorbent'') for the Department's use in
calculating surrogate financial ratios. We have determined not to rely
on the 2009-2010 financial statement of Adsorbent because it indicates
that it received a ``Capital Subsidy''.\92\ The Department has found
India's Capital Subsidy to be a countervailable subsidy.\93\ Consistent
with the Department's practice, we prefer not to use financial
statements of a company we have reason to believe or suspect may have
received subsidies, because financial ratios derived from that
company's financial statements may not constitute the best available
information with which to value financial ratios.\94\ Therefore,
pursuant to 19 CFR 351.408(c), the Department preliminarily determines
that the 2007-2008 financial statements of Quantum and the 2007-2008
financial statements of Kalpalka provide the best available information
with which to calculate surrogate financial ratios, because they are
complete and publicly available. Additionally, both of these companies
produce comparable merchandise and use an integrated carbonization
production process which closely mirrors that of both respondents. We
prefer to use more than one financial statement where possible to
replicate the experience of producers of certain activated carbon in
the surrogate country.\95\ While the Department recognizes Quantum's
and Kalpalka's financial statements both pre-date the POR, we find that
neither company's financial statements pre-date the POR so
significantly as not to be useful.\96\ Therefore, the Department has
used these financial statements to value factory overhead, SG&A, and
profit, for these preliminary results.
---------------------------------------------------------------------------
\92\ See Annual Report Adsorbent Carbons Private Limited 2009-
2010, contained in Jacobi's February 7, 2011 Resubmission of
Surrogate Financial Ratios.
\93\ See Final Results of Countervailing Duty Administrative
Review: Polyethylene Terephthalate Film, Sheet, and Strip from
India, 71 FR 7534 (February 13, 2006).
\94\ See 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 Review and New Shipper
Reviews, 72 FR 19174 (April 17, 2007) and accompanying Issues and
Decision Memorandum at Comment 1.
\95\ See Folding Metal Tables and Chairs from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 72 FR 71355 (December 17, 2007) and accompanying Issues and
Decision Memorandum at Comment 1.
\96\ See Hebei Metals & Minerals v. United States, 366 F. Supp.
2d 1264, 1275 (Ct. Int'l Trade 2005).
---------------------------------------------------------------------------
On May 14, 2010, the Court of Appeals for the Federal Circuit
(``CAFC) in Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (CAFC
2010), found that the ``[regression-based] method for calculating wage
rates [as stipulated by 19 CFR 351.408(c)(3)] uses data not permitted
by [the statutory requirements laid out in section 773 of the Act
(i.e., 19 U.S.C. 1677b(c))].'' The Department is continuing to evaluate
options for determining labor values in light of the recent CAFC
decision. However, for these preliminary results, we have calculated an
hourly wage rate to use in valuing the respondents' reported labor
[[Page 23989]]
input by averaging industry-specific earnings and/or wages in countries
that are economically comparable to the PRC and that are significant
producers of comparable merchandise.
For the preliminary results of this administrative review, the
Department is valuing labor using a simple average industry-specific
wage rate using earnings or wage data reported under Chapter 5B by the
International Labor Organization (``ILO''). To achieve an industry-
specific labor value, we relied on industry-specific labor data from
the countries we determined to be both economically comparable to the
PRC, and significant producers of comparable merchandise. A full
description of the industry-specific wage rate calculation methodology
is provided in the Prelim Surrogate Value Memo. The Department
calculated a simple average industry-specific wage rate of $2.06 for
these preliminary results. Specifically, for this review, the
Department has calculated the wage rate using a simple average of the
data provided to the ILO under Sub-Classification 24 of the ISIC-
Revision 3 standard by countries determined to be both economically
comparable to the PRC and significant producers of comparable
merchandise. The Department finds the two-digit description under ISIC-
Revision 3 (``Manufacture of Chemicals and Chemical Products'') to be
the best available wage rate surrogate value on the record because it
is specific and derived from industries that produce merchandise
comparable to the subject merchandise. Consequently, we averaged the
ILO industry-specific wage rate data or earnings data available from
the following countries found to be economically comparable to the PRC
and significant producers of comparable merchandise: Ecuador, Egypt,
Indonesia, Jordan, Peru, the Philippines, Thailand and Ukraine.\97\ For
further information on the calculation of the wage rate, see Prelim
Surrogate Values Memo.
---------------------------------------------------------------------------
\97\ Although India is used as the primary surrogate country for
the other FOPs, India is not included in the list of countries used
to calculate the industry-specific wage rate because there were no
earnings or wage data available from the ILO for the applicable
period.
---------------------------------------------------------------------------
Treatment of Jacobi's Water Factors
For these preliminary results, we are applying partial adverse
facts available to Jacobi's supplier Ningxia Guanghua Activated Carbon
Co., Ltd. (``NXGH''). The Department asked Jacobi to report the full
amount of water used in the production of subject merchandise, which it
was able to do for its other suppliers. In a supplemental questionnaire
dated November 3, 2010, NXGH stated that the ``water for acid wash
can't be predicted or measured,'' and that the water reported in its
FOP database is water used for the boiler room and does not include all
of the water used in the production of subject merchandise.\98\
---------------------------------------------------------------------------
\98\ See Jacobi's Response to the Supplemental Section D
Questionnaire for NXGH and Huahui, dated November 3, 2010, at 11-12.
---------------------------------------------------------------------------
On December 10, 2010, Petitioners submitted comments to the
Department regarding Jacobi's supplemental questionnaire responses. In
their comments, Petitioners argued that NXGH has a responsibility to
maintain detailed records of every stage of its production process, and
as it has participated in multiple prior segments of this proceeding,
it is aware of this requirement.\99\ Additionally, the Department notes
that NXGH has participated in prior segments of this case as one of
Jacobi's suppliers and stated that it was able to report the full
amount of water used in the production of subject merchandise.\100\ In
this review, Jacobi reported that it was not able to report the full
amount of water used in production of subject merchandise, and did not
provide even an estimate when the Department gave it an opportunity to
correct its reported water usage for NXGH.\101\ Therefore, because
Jacobi has failed to cooperate to the best of its ability in reporting
the total amount of water used in the production of subject
merchandise, as requested by the Department, as partial adverse facts
available, for these preliminary results the Department is applying the
highest single, per-unit consumption of water reported by any of
Jacobi's suppliers as the water used by NXGH in the acid washing
stage.\102\
---------------------------------------------------------------------------
\99\ See Letter to the Department from Petitioners; Re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Petitioners'
Comments on Jacobi Carbons' Recent Supplemental Responses, dated
December 10, 2010.
\100\ See Certain Activated Carbon From the People's Republic of
China: Final Results and Partial Rescission of Second Antidumping
Duty Administrative Review, 75 FR 70208 (November 17, 2010) and
accompanying Issues and Decision Memorandum at Comment 5a.
\101\ See Jacobi's Response to the Supplemental Section D
Questionnaire for NXGH and Huahui, dated November 3, 2010, at 11-12.
\102\ For further details, see Jacobi Prelim Analysis Memo.
---------------------------------------------------------------------------
Additionally, in their December 10, 2010, comments, Petitioners
argued that Jacobi's packing affiliate, Jacobi Tianjin International
Trading Co., Ltd. (``Jacobi Tianjin''), improperly accounted for the
water used in its administrative offices and laboratory as overhead.
Therefore, Petitioners argue that the Department should include the
water reported by Jacobi Tianjin, as required by the Department in a
supplemental questionnaire, in determining Jacobi Tianjin's total cost
of manufacture. However, as Jacobi Tianjin reported that it only uses
water in its laboratory, and for these preliminary results, we find
that it is properly accounted for as overhead.
Treatment of CCT's Reported By-Products
For these preliminary results, the Department has found that non-
activated by-products, such as pressroom powder and non-activated
fines, which were reported by CCT as by-products produced during the
production of subject merchandise by its unaffiliated producers, are
eligible for a byproduct offset. However, one of CCT's unaffiliated
producers, Inner Mongolia Taixi Coal Chemical Industry Limited Company
(``TX''), has reported that it produces its own anthracite coal, which
is then used as an input in the production of subject merchandise.
Although it is our general policy to value all of the FOPs used to
produce subject merchandise, there are certain exceptions. One such
exception is attempting to value the factors used in a production
process yielding an intermediate product. This would lead to an
inaccurate result because a significant element of cost would not be
adequately accounted for in the overall factors buildup. For example,
the Department addressed whether to value the respondent's factors used
in extracting iron ore, an input to its wire rod factory, in Steel Wire
Rod from Ukraine.\103\ The Department determined that, if it were to
use those factors, it would not sufficiently account for the capital
costs associated with the iron ore mining operation given that the
surrogate used for valuing production overhead did not have mining
operations. Therefore, because ignoring this important cost element
would distort the calculation, the Department declined to value the
inputs used in mining iron ore and valued the iron ore instead.
Similarly, in this case, we did not find it appropriate to obtain the
factors relevant to the process of mining anthracite coal, and are not
valuing
[[Page 23990]]
those factors or including them in the cost build-up of subject
merchandise.
---------------------------------------------------------------------------
\103\ See Drill Pipe From the People's Republic of China: Final
Determination of Sales at Less Than Fair Value and Critical
Circumstances, 76 FR 1966 (January 3, 2011) and accompanying Issues
and Decision Memorandum at Comment 12; see also Notice of Final
Determination of Sales at Less Than Fair Value: Carbon and Certain
Alloy Steel Wire Rod From Ukraine, 67 FR 55785 (August 30, 2002)
(``Steel Wire Rod from Ukraine'').
---------------------------------------------------------------------------
Additionally, in CCT's questionnaire response for TX, it claimed
that there are four products (coal slurry, foam, middlings, and
tailings), which are by-products of the production process of
anthracite coal. However, it is the Department's practice to only grant
by-product credits for by-products that are produced directly as a
result of the production process of the subject merchandise.\104\
Therefore, for these preliminary results, we are not granting CCT a by-
product offset for the four products produced by TX in the production
of anthracite coal.\105\
---------------------------------------------------------------------------
\104\ See e.g. id and accompanying Issues and Decision
Memorandum at Comment 5; see also Final Determination of Sales at
Less Than Fair Value: Certain Cut-to-Length Carbon Steel Plate From
the People's Republic of China, 62 FR 61964 (November 20, 1997) and
accompanying Issues and Decision Memorandum at Comment 44.
\105\ For more detail, see CCT Prelim Analysis Memo.
---------------------------------------------------------------------------
Currency Conversion
Where appropriate, 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 on the dates of the U.S. sales, as
certified by the Federal Reserve Bank.
Preliminary Results of Review
The Department preliminarily determines that the following
weighted-average dumping margins exist:
---------------------------------------------------------------------------
\106\ In the second administrative review of this order the
Department determined that it would calculate per-unit assessment
and cash deposit rates for all future reviews. See Certain Activated
Carbon From the People's Republic of China: Final Results and
Partial Rescission of Second Antidumping Duty Administrative Review,
75 FR 70208 (November 17, 2010).
\107\ The Department is assigning this rate to Jacobi Carbons AB
and Tianjin Jacobi International Trading Co. Ltd.
\108\ In Activated Carbon AR1, the Department found Beijing
Pacific Activated Carbon Products Co., Ltd., Ningxia Guanghua
Cherishmet Activated Carbon Co., Ltd. and Ningxia Guanghua Activated
Carbon Co., Ltd. are a single entity and, because there were no
changes from the previous review, we continue to find these
companies to be part of a single entity. Therefore, we will assign
this rate to the companies in the single entity. See Certain
Activated Carbon From the People's Republic of China: Notice of
Preliminary Results of the Antidumping Duty Administrative Review
and Extension of Time Limits for the Final Results, 74 FR 21317 (May
7, 2009), unchanged in First Administrative Review of Certain
Activated Carbon from the People's Republic of China: Final Results
of Antidumping Duty Administrative Review, 74 FR 57995 (November 10,
2009).
\109\ The PRC-Wide entity includes Datong Juqiang Activated
Carbon Co., Ltd.; Datong Yunguang Chemicals Plant; Hebei Foreign
Trade and Advertising Corporation; Shanxi Newtime Co., Ltd.; and
United Manufacturing International (Beijing) Ltd.
------------------------------------------------------------------------
Margin
Exporter (dollars per
kilogram) 106
------------------------------------------------------------------------
Jacobi Carbons AB 107................................... * 0.00
Calgon Carbon (Tianjin) Co., Ltd........................ 0.05
Beijing Pacific Activated Carbon Products Co., Ltd...... 0.05
Datong Municipal Yunguang Activated Carbon Co., Ltd..... 0.05
Ningxia Guanghua Cherishmet Activated Carbon Co., 0.05
Ltd.108................................................
Ningxia Huahui Activated Carbon Co., Ltd................ 0.05
Shanxi DMD Corporation.................................. 0.05
Shanxi Sincere Industrial Co., Ltd...................... 0.05
Shanxi Industry Technology Trading Co., Ltd............. 0.05
Tangshan Solid Carbon Co., Ltd.......................... 0.05
Tianjin Maijin Industries Co., Ltd...................... 0.05
PRC-Wide Rate 109....................................... 2.42
------------------------------------------------------------------------
* (de minimis).
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.\110\ 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.\111\
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.\112\ Parties who submit case
briefs or rebuttal briefs in this proceeding are requested to submit
with each argument: (1) A statement of the issue; (2) a brief summary
of the argument; and (3) a table of authorities.\113\
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\110\ See 19 CFR 351.224(b).
\111\ See 19 CFR 351.309(c)(ii).
\112\ See 19 CFR 351.309(d).
\113\ See 19 CFR 351.309(c) and (d).
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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, pursuant to 19
CFR 351.310(c), interested parties who wish to request a hearing, or to
participate if one is requested, must submit a written request to the
Assistant Secretary for Import Administration, Room 1117, within 30
days of the date of publication of this notice. Requests should
contain: (1) The party's name, address and telephone number; (2) the
number of participants; and (3) a list of issues to be discussed.
Issues raised in the hearing will be limited to those raised in the
respective case and rebuttal briefs. The Department will issue the
final results of this administrative review, including the results of
its analysis of the issues raised in any written briefs, not later than
120 days after the date of publication of this notice, 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. 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. In this and future reviews,
we will direct CBP to assess importer-specific assessment rates based
on the resulting per-unit (i.e., per-kilogram) rates by the weight in
kilograms of each entry of the subject merchandise during the POR. For
the companies receiving a separate rate that were not selected for
individual review, we will assign an assessment rate based on rates
calculated in previous reviews as discussed above.
For those companies for which this review has been preliminarily
rescinded, the Department intends to assess antidumping duties at rates
equal to the cash deposit of estimated antidumping duties required at
the time of entry, or withdrawal from warehouse, for consumption, in
accordance with 19 CFR 351.212(c)(2), if the review is rescinded for
these companies. The Department intends to issue appropriate assessment
instructions directly to CBP 15 days after publication of this notice.
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 exporters
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
[[Page 23991]]
percent, no cash deposit will be required for that company); (2) for
previously investigated or reviewed PRC and non-PRC exporters not
listed above that have separate rates, the cash deposit rate will
continue to be the exporter-specific rate published for the most recent
period; (3) for all PRC exporters of subject merchandise which have not
been found to be entitled to a separate rate, the cash deposit rate
will be the PRC-wide rate of $2.42 per kilogram; 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
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.
This determination is issued and published in accordance with
sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Dated: April 22, 2011.
Paul Piquado,
Acting Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-10429 Filed 4-28-11; 8:45 am]
BILLING CODE 3510-DS-P