Porcelain-on-Steel Cooking Ware from the People's Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review, 76027-76030 [E5-7703]
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Federal Register / Vol. 70, No. 245 / Thursday, December 22, 2005 / Notices
Harmonized Tariff Schedule of the
United States (‘‘HTS’’).
Japan (A–588–707)
The merchandise covered by this
order is PTFE Resin, filled or unfilled,
from Japan. PTFE Resin dispersions in
water and PTFE Resin fine powders are
excluded from the order. The
merchandise covered by this
antidumping duty order is currently
classifiable under subheading
3904.61.00 of the HTS.
Determinations
As a result of the determinations by
the Department and the ITC that
revocation of these antidumping duty
orders would likely lead to continuation
or recurrence of dumping, and to
material injury to an industry in the
United States, pursuant to section
751(d)(2) of the Act, the Department
hereby orders the continuation of the
antidumping duty orders on PTFE Resin
from Italy and Japan.
U.S. Customs and Border Protection
will continue to collect antidumping
duty cash deposits at the rates in effect
at the time of entry for all imports of
subject merchandise.
The effective date of continuation of
these orders will be the date of
publication in the Federal Register of
this ‘‘Notice of Continuation.’’ Pursuant
to sections 751(c)(2) and 751(c)(6)(A) of
the Act, the Department intends to
initiate the next five–year reviews of
these orders not later than November
2010.
These five–year (sunset) reviews and
this notice are published in accordance
with sections 751(c) and 777(i)(1) of the
Act.
Dated: December 15, 2005.
Stephen J. Claeys,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E5–7710 Filed 12–21–05; 8:45 am]
Billing Code: 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–506]
Porcelain-on-Steel Cooking Ware from
the People’s Republic of China: Notice
of Preliminary Results of Antidumping
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) is conducting an
administrative review of the
antidumping duty order on porcelain–
cchase on PROD1PC60 with NOTICES
AGENCY:
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on-steel cooking ware from the People’s
Republic of China (‘‘PRC’’). The
Department has preliminarily
determined that Shanghai Watex Metal
Products Co. Ltd. (‘‘Watex’’), the only
respondent in this review, is not
entitled to a separate rate. In addition,
the Department has determined to apply
adverse facts available to Watex. If these
preliminary results are adopted in the
final results of this review, the
Department will instruct U.S. Customs
and Border Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the period of
review (‘‘POR’’). Interested parties are
invited to comment on these
preliminary results. See the
‘‘Preliminary Results of Review’’ section
of this notice.
EFFECTIVE DATE: December 22, 2005.
FOR FURTHER INFORMATION CONTACT: P.
Lee Smith or Scot Fullerton, AD/CVD
Operations, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202)
482–1655 or (202) 482–1386,
respectively.
SUPPLEMENTARY INFORMATION:
Background
In response to a request from
Columbian Home Products, LLC
(‘‘petitioner’’), the Department of
Commerce (the ‘‘Department’’) initiated
an administrative review of Shanghai
Watex Metal Products Co., Ltd.’s
(‘‘Watex’’) exports of merchandise
covered by the antidumping duty order
on porcelain–on-steel cooking ware
from the PRC. See Initiation of
Antidumping and Countervailing Duty
Administrative Reviews, 70 FR 4818
(January 31, 2005) (‘‘Initiation Notice’’).
On February 3, 2005, the Department
issued its antidumping duty
questionnaire to Watex, and received
the company’s response to section A on
February 24, 2005, and sections C and
D on March 14, 2005. The Department
issued additional supplemental
questionnaires to Watex and received
responses on April 11, May 23, July 19,
September 12, and October 5, 2005.
The Department conducted
verification of Watex’s questionnaire
responses from October 24 to October
26, 2005. See ‘‘Verification Report for
Shanghai Watex Metal Co., Ltd.,’’ dated
December 12, 2005 (‘‘Watex Verification
Report’’). The Department conducted
verification of Watex’s questionnaire
responses regarding its producer
Shanghai Ping An Enamel Products Co.
(‘‘Ping An’’), from October 26 to October
28, 2005. See ‘‘Verification Report for
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76027
Shanghai Ping An Enamel Products
Co.,’’ dated December 12, 2005 (‘‘Ping
An Verification Report’’). On December
13, 2005, petitioner submitted
comments on the Department’s
verification reports.
Period of Review
The POR is December 1, 2003,
through November 30, 2004.
Scope of Order
The merchandise covered by this
order is porcelain–on-steel cooking ware
from the PRC, including tea kettles,
which do not have self–contained
electric heating elements. All of the
foregoing are constructed of steel and
are enameled or glazed with vitreous
glasses. The merchandise is currently
classifiable under the United States
Harmonized Tariff Schedule (‘‘USHTS’’)
item 7323.94.00. USHTS item numbers
are provided for convenience and
customs purposes. The written
description of the scope remains
dispositive.
Non–Market Economy
In every case conducted by the
Department involving the PRC, the PRC
has been treated as a non–market
economy (‘‘NME’’). Pursuant to section
771(18)(C)(i) of Tariff Act of 1930, as
amended (‘‘the Act’’), any determination
that a foreign country is an NME
country shall remain in effect until
revoked by the administering authority.
See Fresh Garlic from the People’s
Republic of China: Preliminary Results
of Antidumping Duty Administrative
Review and Rescission in Part, 69 FR
70638 (December 7, 2004). None of the
parties to this proceeding has contested
such treatment. Accordingly, we
calculated normal value (‘‘NV’’) in
accordance with section 773(c) of the
Act, which applies to NME countries.
Surrogate Country
On April 15, 2005, the Department
provided interested parties the
opportunity to submit comments
regarding the selection of a surrogate
country and factor valuation in these
preliminary results. On July 1, 2005,
Watex submitted publicly available
information for factor valuation. In its
submission, Watex included publicly
available Indonesian import statistics
obtained from the World Trade Atlas.
On May 6, 2005, petitioner submitted
publicly available information for
surrogate country selection. In its
submission, petitioner argued that India
should be selected as the surrogate
country in this review because India is
at a comparable level of economic
development to the PRC, a significant
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producer of comparable merchandise,
and has better availability and quality of
data to value the factors of production
than Indonesia. On August 5, 2005,
petitioner submitted publicly available
information for factor valuation. In its
submission, petitioner included the
financial statements for Kishco Cutlery
Ltd., an Indian producer of comparable
merchandise, and publicly available
Indian import statistics. On September
29, 2005, the Department issued a
supplemental questionnaire requesting
both petitioner and respondent to clarify
their surrogate value submissions. On
October 5, 2005, petitioner and
respondent submitted their responses to
the Department’s surrogate value
supplemental questionnaire. The
Department received no other comments
regarding surrogate country or factor
valuation.
Section 773(c)(4) of the Act requires
the Department to value an NME
producer’s factors of production
(‘‘FOP’’), 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.
Import Administration’s Office of Policy
issued a memorandum listing
appropriate surrogate countries. See
Memorandum from Ron Lorentzen to
Carrie Blozy regarding the
Administrative Review of Porcelain–onSteel Cooking Ware (‘‘Cooking Ware’’)
from the People’s Republic of China
(PRC): Request for a List of Surrogate
Countries, dated April 5, 2005. The
memorandum lists five countries,
including India and Indonesia. In
previous reviews of this order the
Department has chosen Indonesia as a
surrogate country for the PRC. However,
during this review, information was
placed on the record demonstrating that
India was a more appropriate surrogate
country. Based on this information, the
Department has selected India as the
primary surrogate country for purposes
of this review. For further discussion of
our surrogate country selection, see
Memorandum from Joshua T. Pierce
through Christopher Riker and James C.
Doyle to the File regarding the
Antidumping Duty Administrative
Review of Porcelain–on-Steel Cooking
Ware from the People’s Republic of
China: Selection of a Surrogate Country,
dated December 9, 2005.
Verification
As provided in section 782(i) of the
Act, the Department conducted
verification of the responses of Watex.
The Department verified the
questionnaire responses of Watex from
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October 24, 2005, through October 26,
2005, and its affiliated producer, Ping
An, from October 26, 2005, through
October 28, 2005, using standard
verification procedures, including on–
site inspection of the manufacturer’s
facilities and the examination of
relevant sales and financial records. For
more information, see Watex
Verification Report, Ping An
Verification Report, and the
‘‘Application of Adverse Facts
Available’’ section below.
The verification results are on file in
the main Department of Commerce
building, in the Central Records Unit,
Room B–099.
Separate Rates
To establish whether a company
operating in an NME is sufficiently
independent from government control
to be entitled to a separate rate, the
Department analyzes each exporting
entity under the test established in the
Final Determination of Sales at Less
Than Fair Value: Sparklers from the
People’s Republic of China, 56 FR 20588
(May 6, 1991), as amplified by the Final
Determination of Sales at Less Than
Fair Value: Silicon Carbide from the
People’s Republic of China, 59 FR 22585
(May 2, 1994). Under the separate rates
criteria, the Department assigns separate
rates in NME cases only if the
respondent can demonstrate the absence
of both de jure and de facto
governmental control over export
activities.
De Jure Control
Evidence supporting, though not
requiring, a finding of absence of de jure
government control over export
activities includes: (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.
In its questionnaire responses, Watex
stated that it is an independent legal
entity. The business license of Watex
indicates that it is permitted to engage
in the exportation of porcelain–on-steel
cooking ware. Evidence placed on the
record provides no indication of de jure
governmental control restricting Watex’s
exportation of porcelain–on-steel
cooking ware. Specifically, the
Company Law of the People’s Republic
of China, made effective on July 1, 1994,
with the amended version promulgated
on August 28, 2004, states that a
company is an enterprise legal person,
that shareholders shall assume liability
towards the company to the extent of
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their shareholdings and that the
company shall be liable for its debts to
the extent of all its assets. Therefore,
based on the record evidence, the
Department preliminarily determines
that there is an absence of de jure
control over the export activities of
Watex.
De Facto Control
A determination of absence of de
facto government control over exports is
based on the following four factors: (1)
whether each exporter sets its own
export prices independently of the
government and without the approval of
a government authority; (2) whether
each exporter retains the proceeds from
its sales and makes independent
decisions regarding the disposition of
profits or financing of losses; (3)
whether each exporter has the authority
to negotiate and sign contracts and other
agreements; and (4) whether each
exporter has autonomy from the
government regarding the selection of
management. See Final Determination
of Sales at Less than Fair Value: Certain
Cut–to-Length Carbon Steel Plate from
Ukraine, 62 FR 61754, 61758 (November
19, 1997).
Watex asserted the following: (1) it
establishes its own export prices; (2) it
negotiates contracts without guidance
from any governmental entities or
organizations; (3) it makes its own
personnel decisions; and (4) it retains
the proceeds of its export sales, uses
profits according to its business needs,
and has the authority to sell its assets
and to obtain loans. However, Watex
provided the Department with
information about its corporate structure
and ownership that could not be
verified and withheld information
regarding an affiliate. See Memorandum
from James C. Doyle to Stephen J.
Claeys: Porcelain–On-Steel Cooking
Ware from the People’s Republic of
China: Preliminary Application of
Adverse Facts Available to Shanghai
Watex Metal Products Co., Ltd., dated
December 15, 2005 (‘‘AFA Memo’’).
Because we have been unable to fully
analyze Watex’s corporate structure due
to the respondent’s uncooperativeness,
and have been unable to establish who
the true owners of the respondent are,
the Department must conclude that the
company has not satisfactorily
demonstrated it has the ability to select
its own management and make
personnel decisions, as well as to make
its own decisions on the use of its
profits, independent of any
governmental authority. Therefore, the
Department has determined that Watex
has not demonstrated that it qualifies for
a separate rate. Because Watex did not
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demonstrate its eligibility for a separate
rate, we have preliminarily determined
that it is part of the PRC–wide entity. In
the initiation notice, the Department
stated that if one of the companies that
we initiated a review for does not
qualify for a separate rate, all other
exporters of porcelain–on-steel cooking
ware from the PRC who have not
qualified for a separate rate are deemed
to be covered by this review as part of
the single PRC–wide entity, of which
the named exporter is a part. See
Initiation Notice at footnote 3. Watex
did not demonstrate its eligibility for a
separate rate; therefore, the Department
finds that Watex is part of the PRC–wide
entity. As a result, we determine that it
is necessary to review the single PRC
entity, including Watex, in this segment
of the proceeding. As adverse facts
available (‘‘AFA’’), the Department is
assigning the rate of 66.65 percent to the
PRC entity, the highest rate determined
in any previous segment of this
proceeding.
Application of Adverse Facts Available
Pursuant to sections 776(a)(2)(A), (C)
and (D), and section 776(b) of the Act,
the Department determines that the
application of total AFA is warranted
for the PRC–wide entity, including
Watex. When an interested party
withholds information that has been
requested by the Department,
significantly impedes the proceeding, or
provides information, but that
information cannot be verified, sections
776(a)(2)(A), (C) and (D) of the Act
provide for the use of facts otherwise
available. Specifically, the Department
could not verify the information
regarding Watex’s corporate structure
and ownership due to the company’s
failure to provide the Department with
a complete and official version of the
capital verification report or signed
copies of the company’s articles of
association and joint venture agreement
that established Watex. Watex withheld
specifically requested information
concerning the existence of an affiliate.
Finally, Watex significantly impeded
the proceeding by repeatedly making
inaccurate statements concerning the
interests of various owners in both their
questionnaire responses and at
verification. See Watex Verification
Report. The Department finds that facts
available, pursuant to sections
776(a)(2)(A), (C) and (D), is warranted.
Section 776(b) of the Act provides
that if the Department determines that a
party has failed to cooperate to the best
of its ability, in selecting from among
the facts available, the Department may
use an inference that is adverse to the
interests of that party. The Department
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finds that by not providing accurate
information regarding affiliates of Watex
despite multiple opportunities to do so
and by failing to provide the
Department with information regarding
its corporate structure and ownership
that could be verified, Watex failed to
cooperate to the best of its ability. For
a detailed analysis of the Department’s
decision to apply AFA, see AFA Memo.
Selection of AFA Rate
In deciding which facts to use as
AFA, section 776(b) of the Act and 19
CFR 351.308(c)(1) authorize the
Department to rely on information
derived from: (1) the petition; (2) a final
determination in the investigation; (3)
any previous review or determination;
or (4) any information placed on the
record. In reviews, it is the Department’s
practice to select, as AFA, the highest
rate determined for any respondent in
any segment of the proceeding. See, e.g.,
Freshwater Crawfish Tail Meat from the
People’s Republic of China; Notice of
Final Results of Antidumping Duty
Administrative Review, 68 FR 19504
(April 21, 2003).
The Court of International Trade
(‘‘CIT’’’) and the Federal Circuit have
consistently upheld the Department’s
practice. See Rhone Poulenc, Inc. v.
United States, 899 F.2d 1185, 1190 (Fed.
Cir. 1990) (‘‘Rhone Poulenc’’); NSK Ltd.
v. United States, 346 F. Supp. 2d 1312,
1335 (Ct. Int’l Trade 2004) (upholding a
73.55% total AFA rate, the highest
available dumping margin from a
different respondent in a less than fair
value investigation); see also Kompass
Food Trading Int’l v. United States, 24
CIT 678, 689 (2000) (upholding a
51.16% total AFA rate, the highest
available dumping margin from a
different, fully cooperative respondent);
and Shanghai Taoen International
Trading Co., Ltd. v. United States, Slip
Op. 05–22, at 16 (CIT February 17, 2005)
(upholding a 223.01% total AFA rate,
the highest available dumping margin
from a different respondent in a
previous administrative review).
The Department’s practice when
selecting an adverse rate from among
the possible sources of information is to
ensure that the margin is sufficiently
adverse ‘‘as to effectuate the purpose of
the facts available role to induce
respondents to provide the Department
with complete and accurate information
in a timely manner.’’ See Static Random
Access Memory Semiconductors from
Taiwan; Final Determination of Sales at
Less than Fair Value, 63 FR 8909, 8932
(February 23, 1998). The Department’s
practice also ensures ‘‘that the party
does not obtain a more favorable result
by failing to cooperate than if it had
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76029
cooperated fully.’’ See Statement of
Administrative Action (‘‘SAA’’)
accompanying the URAA, H.R. Rep. No.
103–316 at 870 (1994). See also Final
Determination of Sales at Less than Fair
Value: Certain Frozen and Canned
Warmwater Shrimp from Brazil, 69 FR
76910 (December 23, 2004); see also
D&L Supply Co. v. United States, 113
F.3d 1220, 1223 (Fed. Cir. 1997). In
choosing the appropriate balance
between providing respondents with an
incentive to respond accurately and
imposing a rate that is reasonably
related to the respondent’s prior
commercial activity, selecting the
highest prior margin ‘‘reflects a common
sense inference that the highest prior
margin is the most probative evidence of
current margins, because, if it were not
so, the importer, knowing of the rule,
would have produced current
information showing the margin to be
less.’’ Rhone Poulenc, 899 F.2d at 1190.
Consistent with the statute, court
precedent, and its practice, the
Department has assigned the rate of
66.65 percent, the highest rate
calculated in any segment of the
proceeding, to Watex as AFA. See, e.g.,
Rescission of Second New Shipper
Review and Final Results and Partial
Rescission of First Antidumping Duty
Administrative Review: Brake Rotors
from the People’s Republic of China, 64
FR 61581, 61584 (November 12, 1999).
As discussed further below, this rate has
been corroborated.
Corroboration of Secondary
Information Used as AFA
Section 776(c) of the Act provides that
when the Department relies on the facts
otherwise available and relies on
‘‘secondary information,’’ the
Department shall, to the extent
practicable, corroborate that information
from independent sources reasonably at
the Department’s disposal. The SAA
states that ‘‘corroborate’’ means to
determine that the information used has
probative value. See SAA at 870. The
Department has determined that to have
probative value, information must be
reliable and relevant. See Tapered
Roller Bearings and Parts Thereof,
Finished and Unfinished from Japan:
Preliminary Results of Antidumping
Duty Administrative Reviews and
Partial Termination of Administrative
Reviews, 61 FR 57391, 57392 (November
6, 1996). The SAA also states that
independent sources used to corroborate
such evidence may include, for
example, published price lists, official
import statistics and customs data, and
information obtained from interested
parties during the particular
investigation. See Preliminary
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Determination of Sales at Less Than
Fair Value: High and Ultra–High
Voltage Ceramic Station Post Insulators
from Japan, 68 FR 35627 (June 16,
2003); and Final Determination of Sales
at Less Than Fair Value: Live Swine
from Canada, 70 FR 12181 (March 11,
2005).
To be considered corroborated,
information must be found to be both
reliable and relevant. Unlike other types
of information, such as input costs or
selling expenses, there are no
independent sources for calculated
dumping margins. The only sources for
calculated margins are administrative
determinations. The information upon
which the AFA rate we are applying for
the current review was calculated
during the Less Than Fair Value
Investigation. See Porcelain–on-Steel
Cooking Ware from the People’s
Republic of China; Final Determination
of Sales at Less Than Fair Value, 51 FR
36419 (October 10, 1986) (‘‘LTFV
Investigation’’). Furthermore, the AFA
rate we are applying for the current
review was applied in reviews
subsequent to the LTFV Investigation
and the Department received no
information that warranted revisiting
the issue. See, e.g., Porcelain–On-Steel
Cookware from the People’s Republic of
China; Notice of Final Results of
Antidumping Duty Administrative
Review, 62 FR 54825 (October 22, 1997).
No information has been presented in
the current review that calls into
question the reliability of this
information. Thus, the Department finds
that the information is reliable.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal to determine whether a margin
continues to have relevance. Where
circumstances indicate that the selected
margin is not appropriate as AFA, the
Department will disregard the margin
and determine an appropriate margin.
Similarly, the Department does not
apply a margin that has been
discredited. See D &L Supply Co. v.
United States, 113 F.3d 1220, 1221 (Fed.
Cir. 1997) (the Department will not use
a margin that has been judicially
invalidated). None of these
circumstances are present here.
Accordingly, we determine that the
highest rate from any segment of this
administrative proceeding, 66.65
percent, meets the corroboration criteria
established in section 776(c) of the Act
that secondary information have
probative value.
Preliminary Results of the Review
The Department preliminarily finds
that the following margins exist for the
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following exporters under review during
the period December 1, 2003, through
November 30, 2004:
PORCELAIN–ON-STEEL COOKING WARE
FROM THE PRC
Manufacturer/Exporter
Weighted–Average
Margin (Percent)
PRC–wide Rate ............
66.65
Case briefs from interested parties
may be submitted not later than January
17, 2006, pursuant to 19 CFR 351.309(c).
Rebuttal briefs, limited to issues raised
in the case briefs, will be due not later
than January 24, 2006, pursuant to 19
CFR 351.309(d). Parties who submit
case briefs or rebuttal briefs in this
proceeding are requested to submit with
each argument: (1) a statement of the
issue; and (2) a brief summary of the
argument. Parties are also encouraged to
provide a summary of the arguments not
to exceed five pages and a table of
statutes, regulations and cases cited.
Any interested party may request a
hearing within 30 days of publication of
this notice.
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 B–099,
within 30 days of the date of publication
of this notice. Requests should include:
(1) the party’s name, address, and
telephone number; (2) the number of
participants; and (3) a list of issues to be
discussed. See 19 CFR 351.310(c). Issues
raised in the hearing will be limited to
those raised in case briefs and rebuttal
briefs.
The Department will issue the final
results of this administrative review,
including the results of its analysis of
issues raised in any such written briefs
or at the hearing, if held, no later than
120 days after the date of publication of
this notice.
provided by section 751(a)(2)(C) of the
Act: (1) For subject merchandise
exported by the PRC, including Watex,
the cash–deposit rate will be equal to
66.65 percent; (2) the cash–deposit rate
for PRC exporters who received a
separate rate in a prior segment of the
proceeding will continue to be the rate
assigned in that segment of the
proceeding; (3) for all other 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 66.65 percent;
(4) for all non–PRC exporters of subject
merchandise, the cash–deposit rate will
be the rate applicable to the PRC
exporter that supplied that exporter.
These deposit requirements, when
imposed, shall remain in effect until
publication of the final results of the
next administrative review.
Notification to Importers
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This administrative review and notice
is in accordance with sections 751(a)(1)
and 777(i)(1) of the Act and 19 CFR
351.221(b)(4).
Dated: December 15, 2005.
Stephen J. Claeys,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E5–7703 Filed 12–21–05; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
Assessment of Antidumping Duties
International Trade Administration
The Department will determine, and
CBP shall assess, antidumping duties on
all appropriate entries. The Department
will issue appropriate assessment
instructions directly to CBP within 15
days of publication of the final results
of this review.
[A–588–866]
Cash Deposits
The following cash–deposit
requirements will be effective upon
publication of the final results for
shipments of the subject merchandise
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of the final results, as
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Antidumping Duty Order: Superalloy
Degassed Chromium from Japan
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: Based on affirmative final
determinations by the Department of
Commerce and International Trade
Commission, the Department of
Commerce is issuing an antidumping
duty order on superalloy degassed
chromium from Japan.
EFFECTIVE DATE: December 22, 2005.
AGENCY:
E:\FR\FM\22DEN1.SGM
22DEN1
]]>Agencies
[Federal Register Volume 70, Number 245 (Thursday, December 22, 2005)]
[Notices]
[Pages 76027-76030]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-7703]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-506]
Porcelain-on-Steel Cooking Ware from the People's Republic of
China: Notice of Preliminary Results of Antidumping Duty Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is conducting
an administrative review of the antidumping duty order on porcelain-on-
steel cooking ware from the People's Republic of China (``PRC''). The
Department has preliminarily determined that Shanghai Watex Metal
Products Co. Ltd. (``Watex''), the only respondent in this review, is
not entitled to a separate rate. In addition, the Department has
determined to apply adverse facts available to Watex. If these
preliminary results are adopted in the final results of this review,
the Department will instruct U.S. Customs and Border Protection
(``CBP'') to assess antidumping duties on entries of subject
merchandise during the period of review (``POR''). Interested parties
are invited to comment on these preliminary results. See the
``Preliminary Results of Review'' section of this notice.
EFFECTIVE DATE: December 22, 2005.
FOR FURTHER INFORMATION CONTACT: P. Lee Smith or Scot Fullerton, AD/CVD
Operations, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202) 482-1655 or (202) 482-1386,
respectively.
SUPPLEMENTARY INFORMATION:
Background
In response to a request from Columbian Home Products, LLC
(``petitioner''), the Department of Commerce (the ``Department'')
initiated an administrative review of Shanghai Watex Metal Products
Co., Ltd.'s (``Watex'') exports of merchandise covered by the
antidumping duty order on porcelain-on-steel cooking ware from the PRC.
See Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 70 FR 4818 (January 31, 2005) (``Initiation Notice'').
On February 3, 2005, the Department issued its antidumping duty
questionnaire to Watex, and received the company's response to section
A on February 24, 2005, and sections C and D on March 14, 2005. The
Department issued additional supplemental questionnaires to Watex and
received responses on April 11, May 23, July 19, September 12, and
October 5, 2005.
The Department conducted verification of Watex's questionnaire
responses from October 24 to October 26, 2005. See ``Verification
Report for Shanghai Watex Metal Co., Ltd.,'' dated December 12, 2005
(``Watex Verification Report''). The Department conducted verification
of Watex's questionnaire responses regarding its producer Shanghai Ping
An Enamel Products Co. (``Ping An''), from October 26 to October 28,
2005. See ``Verification Report for Shanghai Ping An Enamel Products
Co.,'' dated December 12, 2005 (``Ping An Verification Report''). On
December 13, 2005, petitioner submitted comments on the Department's
verification reports.
Period of Review
The POR is December 1, 2003, through November 30, 2004.
Scope of Order
The merchandise covered by this order is porcelain-on-steel cooking
ware from the PRC, including tea kettles, which do not have self-
contained electric heating elements. All of the foregoing are
constructed of steel and are enameled or glazed with vitreous glasses.
The merchandise is currently classifiable under the United States
Harmonized Tariff Schedule (``USHTS'') item 7323.94.00. USHTS item
numbers are provided for convenience and customs purposes. The written
description of the scope remains dispositive.
Non-Market Economy
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME''). Pursuant to
section 771(18)(C)(i) of Tariff Act of 1930, as amended (``the Act''),
any determination that a foreign country is an NME country shall remain
in effect until revoked by the administering authority. See Fresh
Garlic from the People's Republic of China: Preliminary Results of
Antidumping Duty Administrative Review and Rescission in Part, 69 FR
70638 (December 7, 2004). None of the parties to this proceeding has
contested such treatment. Accordingly, we calculated normal value
(``NV'') in accordance with section 773(c) of the Act, which applies to
NME countries.
Surrogate Country
On April 15, 2005, the Department provided interested parties the
opportunity to submit comments regarding the selection of a surrogate
country and factor valuation in these preliminary results. On July 1,
2005, Watex submitted publicly available information for factor
valuation. In its submission, Watex included publicly available
Indonesian import statistics obtained from the World Trade Atlas. On
May 6, 2005, petitioner submitted publicly available information for
surrogate country selection. In its submission, petitioner argued that
India should be selected as the surrogate country in this review
because India is at a comparable level of economic development to the
PRC, a significant
[[Page 76028]]
producer of comparable merchandise, and has better availability and
quality of data to value the factors of production than Indonesia. On
August 5, 2005, petitioner submitted publicly available information for
factor valuation. In its submission, petitioner included the financial
statements for Kishco Cutlery Ltd., an Indian producer of comparable
merchandise, and publicly available Indian import statistics. On
September 29, 2005, the Department issued a supplemental questionnaire
requesting both petitioner and respondent to clarify their surrogate
value submissions. On October 5, 2005, petitioner and respondent
submitted their responses to the Department's surrogate value
supplemental questionnaire. The Department received no other comments
regarding surrogate country or factor valuation.
Section 773(c)(4) of the Act requires the Department to value an
NME producer's factors of production (``FOP''), 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. Import
Administration's Office of Policy issued a memorandum listing
appropriate surrogate countries. See Memorandum from Ron Lorentzen to
Carrie Blozy regarding the Administrative Review of Porcelain-on-Steel
Cooking Ware (``Cooking Ware'') from the People's Republic of China
(PRC): Request for a List of Surrogate Countries, dated April 5, 2005.
The memorandum lists five countries, including India and Indonesia. In
previous reviews of this order the Department has chosen Indonesia as a
surrogate country for the PRC. However, during this review, information
was placed on the record demonstrating that India was a more
appropriate surrogate country. Based on this information, the
Department has selected India as the primary surrogate country for
purposes of this review. For further discussion of our surrogate
country selection, see Memorandum from Joshua T. Pierce through
Christopher Riker and James C. Doyle to the File regarding the
Antidumping Duty Administrative Review of Porcelain-on-Steel Cooking
Ware from the People's Republic of China: Selection of a Surrogate
Country, dated December 9, 2005.
Verification
As provided in section 782(i) of the Act, the Department conducted
verification of the responses of Watex. The Department verified the
questionnaire responses of Watex from October 24, 2005, through October
26, 2005, and its affiliated producer, Ping An, from October 26, 2005,
through October 28, 2005, using standard verification procedures,
including on-site inspection of the manufacturer's facilities and the
examination of relevant sales and financial records. For more
information, see Watex Verification Report, Ping An Verification
Report, and the ``Application of Adverse Facts Available'' section
below.
The verification results are on file in the main Department of
Commerce building, in the Central Records Unit, Room B-099.
Separate Rates
To establish whether a company operating in an NME is sufficiently
independent from government control to be entitled to a separate rate,
the Department analyzes each exporting entity under the test
established in the Final Determination of Sales at Less Than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588 (May
6, 1991), as amplified by the Final Determination of Sales at Less Than
Fair Value: Silicon Carbide from the People's Republic of China, 59 FR
22585 (May 2, 1994). Under the separate rates criteria, the Department
assigns separate rates in NME cases only if the respondent can
demonstrate the absence of both de jure and de facto governmental
control over export activities.
De Jure Control
Evidence supporting, though not requiring, a finding of absence of
de jure government control over export activities includes: (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.
In its questionnaire responses, Watex stated that it is an
independent legal entity. The business license of Watex indicates that
it is permitted to engage in the exportation of porcelain-on-steel
cooking ware. Evidence placed on the record provides no indication of
de jure governmental control restricting Watex's exportation of
porcelain-on-steel cooking ware. Specifically, the Company Law of the
People's Republic of China, made effective on July 1, 1994, with the
amended version promulgated on August 28, 2004, states that a company
is an enterprise legal person, that shareholders shall assume liability
towards the company to the extent of their shareholdings and that the
company shall be liable for its debts to the extent of all its assets.
Therefore, based on the record evidence, the Department preliminarily
determines that there is an absence of de jure control over the export
activities of Watex.
De Facto Control
A determination of absence of de facto government control over
exports is based on the following four factors: (1) whether each
exporter sets its own export prices independently of the government and
without the approval of a government authority; (2) whether each
exporter retains the proceeds from its sales and makes independent
decisions regarding the disposition of profits or financing of losses;
(3) whether each exporter has the authority to negotiate and sign
contracts and other agreements; and (4) whether each exporter has
autonomy from the government regarding the selection of management. See
Final Determination of Sales at Less than Fair Value: Certain Cut-to-
Length Carbon Steel Plate from Ukraine, 62 FR 61754, 61758 (November
19, 1997).
Watex asserted the following: (1) it establishes its own export
prices; (2) it negotiates contracts without guidance from any
governmental entities or organizations; (3) it makes its own personnel
decisions; and (4) it retains the proceeds of its export sales, uses
profits according to its business needs, and has the authority to sell
its assets and to obtain loans. However, Watex provided the Department
with information about its corporate structure and ownership that could
not be verified and withheld information regarding an affiliate. See
Memorandum from James C. Doyle to Stephen J. Claeys: Porcelain-On-Steel
Cooking Ware from the People's Republic of China: Preliminary
Application of Adverse Facts Available to Shanghai Watex Metal Products
Co., Ltd., dated December 15, 2005 (``AFA Memo''). Because we have been
unable to fully analyze Watex's corporate structure due to the
respondent's uncooperativeness, and have been unable to establish who
the true owners of the respondent are, the Department must conclude
that the company has not satisfactorily demonstrated it has the ability
to select its own management and make personnel decisions, as well as
to make its own decisions on the use of its profits, independent of any
governmental authority. Therefore, the Department has determined that
Watex has not demonstrated that it qualifies for a separate rate.
Because Watex did not
[[Page 76029]]
demonstrate its eligibility for a separate rate, we have preliminarily
determined that it is part of the PRC-wide entity. In the initiation
notice, the Department stated that if one of the companies that we
initiated a review for does not qualify for a separate rate, all other
exporters of porcelain-on-steel cooking ware from the PRC who have not
qualified for a separate rate are deemed to be covered by this review
as part of the single PRC-wide entity, of which the named exporter is a
part. See Initiation Notice at footnote 3. Watex did not demonstrate
its eligibility for a separate rate; therefore, the Department finds
that Watex is part of the PRC-wide entity. As a result, we determine
that it is necessary to review the single PRC entity, including Watex,
in this segment of the proceeding. As adverse facts available
(``AFA''), the Department is assigning the rate of 66.65 percent to the
PRC entity, the highest rate determined in any previous segment of this
proceeding.
Application of Adverse Facts Available
Pursuant to sections 776(a)(2)(A), (C) and (D), and section 776(b)
of the Act, the Department determines that the application of total AFA
is warranted for the PRC-wide entity, including Watex. When an
interested party withholds information that has been requested by the
Department, significantly impedes the proceeding, or provides
information, but that information cannot be verified, sections
776(a)(2)(A), (C) and (D) of the Act provide for the use of facts
otherwise available. Specifically, the Department could not verify the
information regarding Watex's corporate structure and ownership due to
the company's failure to provide the Department with a complete and
official version of the capital verification report or signed copies of
the company's articles of association and joint venture agreement that
established Watex. Watex withheld specifically requested information
concerning the existence of an affiliate. Finally, Watex significantly
impeded the proceeding by repeatedly making inaccurate statements
concerning the interests of various owners in both their questionnaire
responses and at verification. See Watex Verification Report. The
Department finds that facts available, pursuant to sections
776(a)(2)(A), (C) and (D), is warranted.
Section 776(b) of the Act provides that if the Department
determines that a party has failed to cooperate to the best of its
ability, in selecting from among the facts available, the Department
may use an inference that is adverse to the interests of that party.
The Department finds that by not providing accurate information
regarding affiliates of Watex despite multiple opportunities to do so
and by failing to provide the Department with information regarding its
corporate structure and ownership that could be verified, Watex failed
to cooperate to the best of its ability. For a detailed analysis of the
Department's decision to apply AFA, see AFA Memo.
Selection of AFA Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from: (1) the petition; (2) a final determination
in the investigation; (3) any previous review or determination; or (4)
any information placed on the record. In reviews, it is the
Department's practice to select, as AFA, the highest rate determined
for any respondent in any segment of the proceeding. See, e.g.,
Freshwater Crawfish Tail Meat from the People's Republic of China;
Notice of Final Results of Antidumping Duty Administrative Review, 68
FR 19504 (April 21, 2003).
The Court of International Trade (``CIT''') and the Federal Circuit
have consistently upheld the Department's practice. See Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990) (``Rhone
Poulenc''); NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (Ct.
Int'l Trade 2004) (upholding a 73.55% total AFA rate, the highest
available dumping margin from a different respondent in a less than
fair value investigation); see also Kompass Food Trading Int'l v.
United States, 24 CIT 678, 689 (2000) (upholding a 51.16% total AFA
rate, the highest available dumping margin from a different, fully
cooperative respondent); and Shanghai Taoen International Trading Co.,
Ltd. v. United States, Slip Op. 05-22, at 16 (CIT February 17, 2005)
(upholding a 223.01% total AFA rate, the highest available dumping
margin from a different respondent in a previous administrative
review).
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
sufficiently adverse ``as to effectuate the purpose of the facts
available role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Static
Random Access Memory Semiconductors from Taiwan; Final Determination of
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998).
The Department's practice also ensures ``that the party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.'' See Statement of Administrative Action (``SAA'')
accompanying the URAA, H.R. Rep. No. 103-316 at 870 (1994). See also
Final Determination of Sales at Less than Fair Value: Certain Frozen
and Canned Warmwater Shrimp from Brazil, 69 FR 76910 (December 23,
2004); see also D&L Supply Co. v. United States, 113 F.3d 1220, 1223
(Fed. Cir. 1997). In choosing the appropriate balance between providing
respondents with an incentive to respond accurately and imposing a rate
that is reasonably related to the respondent's prior commercial
activity, selecting the highest prior margin ``reflects a common sense
inference that the highest prior margin is the most probative evidence
of current margins, because, if it were not so, the importer, knowing
of the rule, would have produced current information showing the margin
to be less.'' Rhone Poulenc, 899 F.2d at 1190.
Consistent with the statute, court precedent, and its practice, the
Department has assigned the rate of 66.65 percent, the highest rate
calculated in any segment of the proceeding, to Watex as AFA. See,
e.g., Rescission of Second New Shipper Review and Final Results and
Partial Rescission of First Antidumping Duty Administrative Review:
Brake Rotors from the People's Republic of China, 64 FR 61581, 61584
(November 12, 1999). As discussed further below, this rate has been
corroborated.
Corroboration of Secondary Information Used as AFA
Section 776(c) of the Act provides that when the Department relies
on the facts otherwise available and relies on ``secondary
information,'' the Department shall, to the extent practicable,
corroborate that information from independent sources reasonably at the
Department's disposal. The SAA states that ``corroborate'' means to
determine that the information used has probative value. See SAA at
870. The Department has determined that to have probative value,
information must be reliable and relevant. See Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished from Japan: Preliminary
Results of Antidumping Duty Administrative Reviews and Partial
Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6,
1996). The SAA also states that independent sources used to corroborate
such evidence may include, for example, published price lists, official
import statistics and customs data, and information obtained from
interested parties during the particular investigation. See Preliminary
[[Page 76030]]
Determination of Sales at Less Than Fair Value: High and Ultra-High
Voltage Ceramic Station Post Insulators from Japan, 68 FR 35627 (June
16, 2003); and Final Determination of Sales at Less Than Fair Value:
Live Swine from Canada, 70 FR 12181 (March 11, 2005).
To be considered corroborated, information must be found to be both
reliable and relevant. Unlike other types of information, such as input
costs or selling expenses, there are no independent sources for
calculated dumping margins. The only sources for calculated margins are
administrative determinations. The information upon which the AFA rate
we are applying for the current review was calculated during the Less
Than Fair Value Investigation. See Porcelain-on-Steel Cooking Ware from
the People's Republic of China; Final Determination of Sales at Less
Than Fair Value, 51 FR 36419 (October 10, 1986) (``LTFV
Investigation''). Furthermore, the AFA rate we are applying for the
current review was applied in reviews subsequent to the LTFV
Investigation and the Department received no information that warranted
revisiting the issue. See, e.g., Porcelain-On-Steel Cookware from the
People's Republic of China; Notice of Final Results of Antidumping Duty
Administrative Review, 62 FR 54825 (October 22, 1997). No information
has been presented in the current review that calls into question the
reliability of this information. Thus, the Department finds that the
information is reliable.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. Similarly, the Department does not apply a margin
that has been discredited. See D &L Supply Co. v. United States, 113
F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin
that has been judicially invalidated). None of these circumstances are
present here. Accordingly, we determine that the highest rate from any
segment of this administrative proceeding, 66.65 percent, meets the
corroboration criteria established in section 776(c) of the Act that
secondary information have probative value.
Preliminary Results of the Review
The Department preliminarily finds that the following margins exist
for the following exporters under review during the period December 1,
2003, through November 30, 2004:
Porcelain-on-Steel Cooking Ware from the PRC
------------------------------------------------------------------------
Weighted-Average
Manufacturer/Exporter Margin (Percent)
------------------------------------------------------------------------
PRC-wide Rate....................................... 66.65
------------------------------------------------------------------------
Case briefs from interested parties may be submitted not later than
January 17, 2006, pursuant to 19 CFR 351.309(c). Rebuttal briefs,
limited to issues raised in the case briefs, will be due not later than
January 24, 2006, pursuant to 19 CFR 351.309(d). Parties who submit
case briefs or rebuttal briefs in this proceeding are requested to
submit with each argument: (1) a statement of the issue; and (2) a
brief summary of the argument. Parties are also encouraged to provide a
summary of the arguments not to exceed five pages and a table of
statutes, regulations and cases cited. Any interested party may request
a hearing within 30 days of publication of this notice.
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 B-099, within 30 days of the
date of publication of this notice. Requests should include: (1) the
party's name, address, and telephone number; (2) the number of
participants; and (3) a list of issues to be discussed. See 19 CFR
351.310(c). Issues raised in the hearing will be limited to those
raised in case briefs and rebuttal briefs.
The Department will issue the final results of this administrative
review, including the results of its analysis of issues raised in any
such written briefs or at the hearing, if held, no later than 120 days
after the date of publication of this notice.
Assessment of Antidumping Duties
The Department will determine, and CBP shall assess, antidumping
duties on all appropriate entries. The Department will issue
appropriate assessment instructions directly to CBP within 15 days of
publication of the final results of this review.
Cash Deposits
The following cash-deposit requirements will be effective upon
publication of the final results for shipments of the subject
merchandise entered, or withdrawn from warehouse, for consumption on or
after the publication date of the final results, as provided by section
751(a)(2)(C) of the Act: (1) For subject merchandise exported by the
PRC, including Watex, the cash-deposit rate will be equal to 66.65
percent; (2) the cash-deposit rate for PRC exporters who received a
separate rate in a prior segment of the proceeding will continue to be
the rate assigned in that segment of the proceeding; (3) for all other
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 66.65 percent; (4) for all non-PRC exporters of subject
merchandise, the cash-deposit rate will be the rate applicable to the
PRC exporter that supplied that exporter.
These deposit requirements, when imposed, shall remain in effect
until publication of the final results of the next administrative
review.
Notification to Importers
This notice serves as a preliminary reminder to importers of their
responsibility under 19 CFR 351.402(f)(2) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
This administrative review and notice is in accordance with
sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).
Dated: December 15, 2005.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-7703 Filed 12-21-05; 8:45 am]
BILLING CODE 3510-DS-S
