Pure Magnesium from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 18067-18072 [E6-5191]
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Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices
period December 1, 2004 to November
30, 2005.
Notification to Parties
This notice serves as a reminder to
importers of their responsibility under
section 351.402(f) of the Department’s
regulations to file a certificate regarding
the reimbursement of antidumping
duties prior to liquidation of the
relevant entries during this period of
time. Failure to comply with this
requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and subsequent assessment of
double antidumping duties. This notice
also serves as a reminder to parties
subject to administrative protective
order (APO) of their responsibility
concerning the disposition of
proprietary information disclosed under
APO in accordance with section
351.305(a)(3) of the Department’s
regulations. Timely written notification
of the return or destruction of APO
materials or conversion to judicial
protective order is hereby requested.
Failure to comply with the regulations
and terms of an APO is a sanctionable
violation.
This notice is issued and published in
accordance with section 351.213(d)(4) of
the Department’s regulations and
sections 751(a) and 777(i)(1) of the
Tariff Act of 1930, as amended.
Dated: April 4, 2006.
Stephen J. Claeys,
Deputy Assistant Secretaryfor Import
Administration.
[FR Doc. E6–5192 Filed 4–7–06; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–570–832
Pure Magnesium from the People’s
Republic of China: Preliminary Results
of Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) is conducting the
administrative review of the
antidumping duty order on pure
magnesium from the People’s Republic
of China (‘‘PRC’’) covering the period
May 1, 2004, through April 30, 2005.
We have preliminarily determined that
sales have been made below normal
value. If these preliminary results are
adopted in our final results of this
review, we will instruct U.S. Customs
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AGENCY:
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and Border Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the period of
review (‘‘POR’’), for which the
importer–specific assessment rates are
above de minimis.
Interested parties are invited to
comment on these preliminary results.
We will issue the final results no later
than 120 days from the date of
publication of this notice.
EFFECTIVE DATE: April 10, 2006.
FOR FURTHER INFORMATION CONTACT: Hua
Lu or Eugene Degnan, AD/CVD
Operations, Office 8, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–6478 and (202)
482–0414, respectively.
SUPPLEMENTARY INFORMATION:
Department issued a supplemental
questionnaire to TMI in November 2005,
to which TMI responded in December
2005. On December 19, 2005, TMI
submitted additional surrogate value
data. The Department issued a second
supplemental questionnaire to TMI and
received a response in February 2006.
On January 13, 2006, the Department
published a notice in the Federal
Register extending the time limit for the
preliminary results of review from
January 31, 2006, until April 3, 2006.
See Pure Magnesium from the People’s
Republic of China: Extension of Time
Limit for the Preliminary Results of the
Antidumping Duty Administrative
Review, 71 FR 2188 (January 13, 2006).
Background
On May 2, 2005, the Department
published a notice of opportunity to
request an administrative review of the
antidumping duty order on pure
magnesium from the PRC for the period
May 1, 2004, through April 30, 2005.
See Antidumping or Countervailing
Duty Order, Finding, or Suspended
Investigation: Opportunity to Request
Administrative Review, 70 FR 22631. On
May 26, 2005, Tianjin Magnesium
International, LTD (‘‘TMI’’) requested
that the Department conduct a new
shipper review and an administration
review of the antidumping duty order
covering pure magnesium from the PRC
for entries of subject merchandise
produced and exported by TMI. On June
28, 2005, the Department determined
that TMI did not meet the requirements
under which the Department can
initiate a new shipper review. See Letter
from Wendy Frankel to David A. Riggle
(June 28, 2005). On June 30, 2005, the
Department published in the Federal
Register a notice of initiation of the
antidumping duty administrative review
of pure magnesium from the PRC for the
period May 1, 2004, through April 30,
2005, with respect to TMI. See Initiation
of Antidumping and Countervailing
Duty Administrative Reviews, 70 FR
37749 (‘‘Initiation Notice’’). On July 20,
2005, the Department issued its
antidumping duty questionnaire to TMI.
In August and September 2005, TMI
submitted its questionnaire responses.
The Department issued a letter seeking
comments on surrogate country
selection and surrogate value on August
9, 2005, to which TMI responded on
September 28, 2005. On December 7,
2005, the Department selected India as
the primary surrogate country. The
Scope of Order
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Period of Review
The POR is May 1, 2004, through
April 30, 2005.
Merchandise covered by this order is
pure magnesium regardless of
chemistry, form or size, unless expressly
excluded from the scope of this order.
Pure magnesium is a metal or alloy
containing by weight primarily the
element magnesium and produced by
decomposing raw materials into
magnesium metal. Pure primary
magnesium is used primarily as a
chemical in the aluminum alloying,
desulfurization, and chemical reduction
industries. In addition, pure magnesium
is used as an input in producing
magnesium alloy. Pure magnesium
encompasses products (including, but
not limited to, butt ends, stubs, crowns
and crystals) with the following primary
magnesium contents:
(1) Products that contain at least
99.95% primary magnesium, by weight
(generally referred to as ‘‘ultra pure’’
magnesium);
(2) Products that contain less than
99.95% but not less than 99.8% primary
magnesium, by weight (generally
referred to as ‘‘pure’’ magnesium); and
(3) Products that contain 50% or
greater, but less than 99.8% primary
magnesium, by weight, and that do not
conform to ASTM specifications for
alloy magnesium (generally referred to
as ‘‘off–specification pure’’ magnesium).
‘‘Off–specification pure’’ magnesium
is pure primary magnesium containing
magnesium scrap, secondary
magnesium, oxidized magnesium or
impurities (whether or not intentionally
added) that cause the primary
magnesium content to fall below 99.8%
by weight. It generally does not contain,
individually or in combination, 1.5% or
more, by weight, of the following
alloying elements: aluminum,
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manganese, zinc, silicon, thorium,
zirconium and rare earths.
Excluded from the scope of this order
are alloy primary magnesium (that
meets specifications for alloy
magnesium), primary magnesium
anodes, granular primary magnesium
(including turnings, chips and powder)
having a maximum physical dimension
(i.e., length or diameter) of one inch or
less, secondary magnesium (which has
pure primary magnesium content of less
than 50% by weight), and remelted
magnesium whose pure primary
magnesium content is less than 50% by
weight.
Pure magnesium products covered by
this order are currently classifiable
under Harmonized Tariff Schedule of
the United States (HTSUS) subheadings
8104.11.00, 8104.19.00, 8104.20.00,
8104.30.00, 8104.90.00, 3824.90.11,
3824.90.19 and 9817.00.90. Although
the HTSUS subheadings are provided
for convenience and customs purposes,
our written description of the scope is
dispositive.
Surrogate Value Information
On September 28, 2005, US
Magnesium LLC (‘‘Petitioner’’) and TMI
submitted comments on the appropriate
surrogate values to be applied to the
factors of production (‘‘FOP’’) in this
review. On October 11, 2005, Petitioner
submitted comments rebutting certain
factual information concerning
valuation of the FOP information
submitted by TMI. On December 19,
2005, TMI submitted additional
surrogate value data. No other party to
the proceeding provided comments on
surrogate values during the course of
this review.
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Nonmarket–Economy-Country Status
In every case conducted by the
Department involving the PRC, the PRC
has been treated as a non–market
economy (‘‘NME’’) country. In
accordance with section 771(18)(C)(i) of
the 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 Tapered
Roller Bearings and Parts Thereof,
Finished and Unfinished, From the
People’s Republic of China: Preliminary
Results 2001–2002 Administrative
Review and Partial Rescission of
Review, 68 FR 7500 (February 14, 2003).
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.
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Surrogate Country
When the Department is investigating
imports from an NME country, section
773(c)(1) of the Act directs it to base NV
on the NME producer’s FOP, valued in
a surrogate market–economy country or
countries considered to be appropriate
by the Department. In accordance with
section 773(c)(4) of the Act, in valuing
the FOP, the Department shall utilize, to
the extent possible, the prices or costs
of FOP in one or more market–economy
countries that are: (1) at a level of
economic development comparable to
that of the NME country; and (2)
significant producers of comparable
merchandise. The sources of the
surrogate factor values used in this
review are discussed under the ‘‘Normal
Value’’ section below and in the
memorandum to the file from Hua Lu,
Case Analyst, through Robert Bolling,
Preliminary Results of Review of Pure
Magnesium from the People’s Republic
of China: Factors of Production
Valuation Memorandum for the
Preliminary Results of Review, dated
April 3, 2006 (‘‘Factor Valuation
Memorandum’’).
The Department has determined that
India, Indonesia, Sri Lanka, the
Philippines, and Egypt are countries
comparable to the PRC in terms of
economic development. See
Memorandum from Ron Lorentzen to
Robert Bolling: Administrative Review
of Pure Magnesium from the People’s
Republic of China (PRC): Request for a
List of Surrogate Countries, dated July
15, 2005 (‘‘Policy Memo’’). Customarily,
the Department selects an appropriate
surrogate country from the Policy Memo
based on the availability and reliability
of data from the countries that are
significant producers of comparable
merchandise. In this case, the
Department found that India is a
significant producer of comparable
merchandise. See Memorandum from
Hua Lu through Robert Bolling to
Wendy Frankel, Antidumping
Administrative Review of Pure
Magnesium from the People’s Republic
of China: Selection of a Surrogate
Country, dated December 7, 2005
(‘‘Surrogate Country Memorandum’’).
The Department used India as the
primary surrogate country, and,
accordingly, has calculated NV using
Indian prices to value the PRC
producers’ FOP, when available and
appropriate. See Surrogate Country
Memorandum and Factor Valuation
Memorandum. The Department has
obtained and relied upon publicly
available information to value FOP.
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results in
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an antidumping administrative review,
interested parties may submit publicly
available information to value factors of
production within 20 days after the date
of publication of the preliminary results
of review.
Separate Rates
In proceedings involving NME
countries, the Department begins with a
rebuttable presumption that all
companies within the country are
subject to government control and, thus,
should be assigned a single
antidumping duty deposit rate. It is the
Department’s policy to assign all
exporters of merchandise subject to
administrative review in an NME
country this single rate unless an
exporter can demonstrate that it is
sufficiently independent so as to be
entitled to a separate rate.
The Department has considered
whether each reviewed company based
in the PRC is eligible for a separate rate.
The Department’s separate–rate test to
determine whether the exporters are
independent from government control
does not consider, in general,
macroeconomic/border–type controls,
e.g., export licenses, quotas, and
minimum export prices, particularly if
these controls are imposed to prevent
dumping. The test focuses, rather, on
controls over the investment, pricing,
and the output decision–making process
at the individual firm level. See Tapered
Roller Bearings and Parts Thereof,
Finished and Unfinished, from the
People’s Republic of China: Final
Results of Antidumping Duty
Administrative Review, 62 FR 61276,
61279 (November 17, 1997), and
Preliminary Determination of Sales at
Less than Fair Value: Honey from the
People’s Republic of China, 60 FR 14725
(March 20, 1995).
To establish whether a firm is
sufficiently independent from
government control to be entitled to a
separate rate, the Department analyzes
each exporting entity under a test
arising out of 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 modified by
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’’). 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 government
control over export activities. See
Silicon Carbide and Final Determination
of Sales at Less Than Fair Value:
Furfuryl Alcohol from the People’s
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Republic of China, 60 FR 22544 (May 8,
1995).
TMI provided company–specific
separate–rates information and stated
that it met the standards for the
assignment of separate rates.
Consequently, the Department analyzed
whether TMI should receive a separate
rate.
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; or (3) any other formal
measures by the government
decentralizing control of companies. See
Final Determination of Sales at Less
Than Fair Value: Sparklers From the
People’s Republic of China, 56 FR 20588
(May 6, 1991).
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B. Absence of De Facto Control
As stated in previous cases, there is
some evidence that certain enactments
of the PRC central government have not
been implemented uniformly among
different sectors and/or jurisdictions in
the PRC. See Final Determination of
Sales at Less Than Fair Value: Certain
Preserved Mushrooms from the People’s
Republic of China, 63 FR 72255
(December 31, 1998). Therefore, the
Department has preliminarily
determined that an analysis of de facto
control is critical in determining
whether respondent is, in fact, subject to
a degree of government control which
would preclude the Department from
assigning separate rates. The
Department typically considers four
factors in evaluating whether each
respondent is subject to de facto
government control of its export
functions: (1) Whether the exporter sets
its own export prices independent of the
government and without the approval of
a government authority; (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 its management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses. See Final Determination of Sales
at Less Than Fair Value: Furfuryl
Alcohol From the People’s Republic of
China, 60 FR 22544 (May 8, 1995).
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C. Analysis
TMI placed on the record statements
and documents to demonstrate absence
of de jure control. In its questionnaire
responses, TMI reported that it operated
on market principles and was run
independently and separately from the
national, provincial, or local
governments, including ministries, or
offices of those governments. See TMI’s
August 10, 2005, Section A
questionnaire response (‘‘TMI AQR’’) at
2. TMI submitted a copy of its business
license and stated it is renewed upon
expiration of the term by filing an
application to renew as long as the
company maintains its status, as per the
initial certificate. TMI reported that the
subject merchandise did not appear on
any government list regarding export
provisions or export licensing, and the
subject merchandise is not subject to
export quotas or export control licenses
imposed by the PRC government. See
TMI AQR at 5. TMI explained that the
license imposed no limitations on the
operations of TMI, nor created special
entitlements to TMI. Furthermore, TMI
stated that the Chamber of Commerce
played no role in coordinating the
export activities of TMI. See TMI AQR
at 7. TMI submitted a copy of the Trade
Law of the People’s Republic of China
to demonstrate that it had full rights to
import and export. Based upon an
examination of TMI’s applicable laws
and questionnaire responses, and TMI’s
business license, the Department
preliminarily finds that TMI has
demonstrated the absence of de jure
government control over its export
activities.
In support of its assertion of an
absence of de facto government control,
TMI reported the following: (1) During
the POR, TMI sold the subject
merchandise directly to unaffiliated
U.S. customers and negotiated prices
directly with its customers, and these
prices were not subject to review by, or
guidance from, any government
organization; (2) No organization
outside of TMI reviewed, or approved,
any aspect of its sales transactions; (3)
TMI’s owners selected the management,
and no government authorities
controlled the selection process, or had
power to veto selections; and (4) TMI’s
profits may be retained in the company
for further business purposes, or
distributed to the shareholders. See TMI
AQR at 9. Additionally, TMI explained
that the owners of TMI decided how
profits were used. Furthermore, TMI
stated that it is not required to sell
foreign currency earned (or some
portion of it) to the government and that
it may freely control and use the foreign
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currency it earned on sales of the
subject merchandise to the United
States by further investing the profit in
the business, or distributing it to the
owners. See TMI AQR at 10. The
Department preliminarily finds that TMI
has demonstrated the absence of de
facto government control over its export
activities.
The evidence placed on the record of
this administrative review by TMI
demonstrates the absence of government
control, both in law and in fact, with
respect to TMI’s exports of the
merchandise under review. As a result,
for the purposes of these preliminary
results, the Department is granting a
separate, company–specific rate to TMI,
the exporter which shipped the subject
merchandise to the United States during
the POR.
Date of Sale
19 CFR 351.401(i) states that ‘‘in
identifying the date of sale of the subject
merchandise or foreign like product, the
Secretary normally will use the date of
invoice, as recorded in the exporter or
producer’s records kept in the normal
course of business. However, the
Secretary may use a date other than the
date of invoice if the Secretary is
satisfied that a different date better
reflects the date on which the exporter
or producer establishes the material
terms of sale.’’ 19 CFR 351.401(i); see
also Allied Tube and Conduit Corp. v.
United States, 132 F. Supp. 2d 1087,
1090–1093 (CIT 2001).
After examining the questionnaire
responses and the sales documentation
that TMI placed on the record, we
preliminarily determine that the invoice
date is the most appropriate date of sale
for TMI. We made this determination
based on record evidence which
demonstrates that TMI’s invoices
establish the material terms of sale.
Thus, the record evidence does not
rebut the presumption that the invoice
date is the proper date of sale. See
Preliminary Determination of Sales at
Less Than Fair Value: Saccharin From
the People’s Republic of China, 67 FR
79054 (December 27, 2002).
Normal Value Comparisons
To determine whether sales of pure
magnesium to the United States by TMI
were made at less than NV, we
compared Export Price (‘‘EP’’) to NV, as
described in the ‘‘Export Price’’ and
‘‘Normal Value’’ sections of this notice.
Export Price
In accordance with section 772(a) of
the Act, EP is the price at which the
subject merchandise is first sold (or
agreed to be sold) before the date of
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importation by the producer or exporter
of the subject merchandise outside of
the United States to an unaffiliated
purchaser in the United States or to an
unaffiliated purchaser for exportation to
the United States, as adjusted under
section 772(c) of the Act. In accordance
with section 772(a) of the Act, we used
EP for TMI’s U.S. sales because the
subject merchandise was sold directly to
the unaffiliated customers in the United
States prior to importation and because
CEP was not otherwise indicated.
We compared NV to individual EP
transactions, in accordance with section
777A(d)(2) of the Act.
We calculated EP for TMI based on
delivered prices to unaffiliated
purchasers in the United States. We
made deductions from the U.S. sales
price for movement expenses in
accordance with section 772(c)(2)(A) of
the Act. These included foreign inland
freight from the plant to the port of
exportation, and where applicable,
ocean freight and marine insurance. No
other adjustments to EP were reported
or claimed. See memorandum from Hua
Lu, Case Analyst, through Robert
Bolling, Program Manager, to the file,
Preliminary Results of Review of the
Order on Pure Magnesium from the
People’s Republic of China: Program
Analysis for the Preliminary Results of
Review, dated April 3, 2006.
Normal Value
Section 773(c)(1) of the Act provides
that the Department shall determine NV
using an FOP methodology if: (1) the
merchandise is exported from a non–
market economy country; and (2) 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 will base NV
on FOP because the presence of
government controls on various aspects
of these economies renders price
comparisons and the calculation of
production costs invalid under our
normal methodologies.
FOP includes: (1) hours of labor
required; (2) quantities of raw materials
employed; (3) amounts of energy and
other utilities consumed; and (4)
representative capital costs. The
Department used the FOP reported by
respondent for materials, energy, labor,
by–product, and packing.
With regard to both the Indian
import–based surrogate values and the
market–economy input values, we have
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
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Thailand may have been subsidized.
The Department has found in other
proceedings that these countries
maintain broadly available, non–
industry-specific export subsidies;
therefore, it is reasonable to infer that all
exports to all markets from these
countries may be subsidized. See China
National Machinery Import & Export
Corporation v. United States, 293 F.
Supp. 2d 1334 (CIT 2003), aff’d, 104
Fed. Appx. 183 (Fed. Cir. 2004); Certain
Helical Spring Lock Washers from the
People’s Republic of China; Final
Results of Administrative Review, 61 FR
66255 (December 17, 1996), at Comment
1; and Automotive Replacement Glass
Windshields From the People’s Republic
of China: Final Results of
Administrative Review, 69 FR 61790
(October 21, 2004). The Department is
also guided by the legislative history not
to conduct a formal investigation to
ensure that such prices are not
subsidized. See H.R. Rep. 100–576
(1988) at 590. Rather, Congress
instructed the Department to base its
decision on information that is available
to it at the time it is making its
determination. Therefore, the
Department has not used prices from
these countries in calculating the Indian
import–based surrogate values.
Factor Valuations
In accordance with section 773(c) of
the Act, the Department calculated NV
based on FOP reported by respondent
for the POR. To calculate NV, the
reported per–unit factor quantities were
multiplied by publicly available Indian
surrogate values (except as noted
below). In selecting the surrogate values,
the Department considered the quality,
specificity, and contemporaneity of the
data. As appropriate, the Department
adjusted input prices by including
freight costs to make them 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, where appropriate (i.e., where
the sales terms for the market–economy
inputs were not delivered 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 (Fed. Cir. 1997).
For a detailed description of all
surrogate values used for TMI, see
Factor Valuation Memorandum.
The Department valued the following
raw material inputs: ferrosilicon,
dolomite, flux, fluorite and sulfur using
the weighted–average unit import
values derived from the World Trade
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Atlas online (‘‘Indian Import
Statistics’’), which are published by the
Directorate General of Commercial
Intelligence and Statistics (‘‘DGCI&S’’),
Ministry of Commerce of India, are
reported in rupees, and are
contemporaneous with the POR. See
Factor Valuation Memorandum. Where
the Department could not obtain
publicly available information
contemporaneous with the POR with
which to value FOP, the Department
adjusted the surrogate values using the
Indian Wholesale Price Index (‘‘WPI’’)
as published in the International
Financial Statistics of the International
Monetary Fund.
To value electricity, the Department
used values from the International
Energy Agency Key World Energy
Statistics (2003 edition). Because the
value was not contemporaneous with
the POR, the Department adjusted the
rate for inflation. See Factor Valuation
Memorandum.
The Department valued steam coal
using the 2003/2004 Tata Energy
Research Institute’s Energy Data
Directory & Yearbook (‘‘TERI Data’’).
The Department was able to determine,
through its examination of the 2003/
2004 TERI Data, that: a) the annual TERI
Data publication is complete and
comprehensive because it covers all
sales of all types of coal made by Coal
India Limited and its subsidiaries, and
b) the annual TERI Data publication
prices are exclusive of duties and taxes.
Because the value was not
contemporaneous with the POR, the
Department adjusted the rate for
inflation. See Factor Valuation
Memorandum at page 5.
The Department used Indian transport
information in order to value the inland
freight cost of the raw materials. The
Department determined the best
available information for valuing truck
freight to be from www.infreight.com.
This source provides daily rates from
six major points of origin to five
destinations in India during the POR.
The Department obtained a generally
publicly available price quote on the
first day of each month of the POR from
each point of origin to each destination
and averaged the data accordingly. See
Factor Valuation Memorandum at page
6.
The Department used two sources to
calculate a surrogate value for domestic
brokerage expenses. The Department
averaged December 2003–November
2004 data contained in Essar Steel’s
February 28, 2005, public version
response submitted in the antidumping
administrative review of hot–rolled
carbon steel flat products from India
with February 2004–January 2005 data
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Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices
contained in Agro Dutch’s May 24,
2005, public version response submitted
in the antidumping investigation of
certain preserved mushrooms from
India. The brokerage expense data
reported by Essar Steel and Agro Dutch
in their public versions is ranged data.
The Department first derived an average
per–unit amount from the source. Then,
the Department averaged the two per–
unit amounts to derive an overall
average rate for the POR. See Factor
Valuation Memorandum at page 7.
To value marine insurance, the
Department obtained a generally
publicly available price quote from
https://www.rjgconsultants.com/
insurance.html, a market–economy
provider of marine insurance. See
Factor Valuation Memorandum at page
7.
To value international freight, the
Department obtained a generally
publicly available price quote from
https://www.maersksealand.com/
HomePage/appmanager/, a market–
economy provider of international
freight services. See Factor Valuation
Memorandum at page 7.
For direct labor, indirect labor,
selling, general and administrative
expenses (‘‘SG&A’’) labor, and packing
labor, consistent with 19 CFR
351.408(c)(3), the Department used the
PRC regression–based wage rate as
reported on the Import Administration’s
home page, Import Library, Expected
Wages of Selected NME Countries,
revised in November 2005, https://ia.
ita.doc.gov/wages/. The
source of these wage rate data on the
Import Administration’s web site is the
Yearbook of Labour Statistics 2003, ILO,
(Geneva: 2003), Chapter 5B: Wages in
Manufacturing. The years of the
reported wage rates range from 1996 to
2003. Because this regression–based
wage rate does not separate the labor
rates into different skill levels or types
of labor, the Department has applied the
same wage rate to all skill levels and
types of labor reported by each
respondent.
To value factory overhead,
depreciation, SG&A and profit, the
Department used the 2004 audited
financial statements for an Indian
producer of aluminum, Hindalco
Industries Limited (‘‘Hindalco’’). See
Factor Valuation Memorandum at page
6 for a full discussion of the calculation
of these ratios from Hindalco’s financial
statements.
TMI reported that it recovered cement
clinker from the production of pure
magnesium for resale. The Department
offset TMI’s NV by the amount of
cement clinker that TMI sold. See Factor
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18:48 Apr 07, 2006
Jkt 208001
Valuation Memorandum at page 6 for a
complete discussion of this issue.
Finally, the Department used Indian
Import Statistics to value material
inputs for packing which, for TMI, are
steel bands and plastic bags. The
Department used Indian Import
Statistics data for the POR for packing
materials. See Factor Valuation
Memorandum at page 6.
Currency Conversion
The Department made currency
conversions into U.S. dollars, in
accordance with section 773A(a) of the
Act, based on the exchange rates in
effect as certified by the Federal Reserve
Bank on the dates of the U.S. sales.
Weighted–Average Dumping Margins
The weighted–average dumping
margin for TMI is as follows:
Exporter/Manufacturer
Weighted–Average
Margin (percentage)
TMI ..............................
89.05
Disclosure
The Department will disclose
calculations performed for these
preliminary results to the parties within
five days of the date of publication of
this notice in accordance with 19 CFR
351.224(b). Any interested party may
request a hearing within 30 days of
publication of these preliminary results.
See 19 CFR 351.310(c). Any hearing, if
requested, will be held 37 days after the
date of publication of this notice. See 19
CFR 351.310(d). Interested parties may
submit case briefs and/or written
comments no later than 30 days after the
date of publication of these preliminary
results of review. See 19 CFR
351.309(c)(ii). Rebuttal briefs and
rebuttals to written comments, limited
to issues raised in such briefs or
comments, may be filed no later than 35
days after the date of publication. See 19
CFR 351.309(d). The Department
requests that parties submitting written
comments also provide the Department
with an additional copy of those
comments on diskette. The Department
will issue the final results of this
administrative review, which will
include the results of its analysis of
issues raised in any such comments,
within 120 days of publication of these
preliminary results, pursuant to section
751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries. The Department
will issue appropriate assessment
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18071
instructions directly to CBP upon
completion of this review. If these
preliminary results are adopted in our
final results of review, the Department
will direct CBP to assess the resulting
rate against the entered customs value
for the subject merchandise on each
importer’s/customer’s entries during the
POR. Additionally, the Department will
instruct CBP to assess antidumping
duties for rescinded companies 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)(1)(I).
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) The cash
deposit rate for the reviewed company
will be the rate listed in the final results
of review (except where the rate for a
particular company is de minimis, i.e.,
less than 0.5 percent, no cash deposit
will be required for that company); (2)
for previously investigated companies
not listed above, the cash deposit rate
will continue to be the company–
specific rate published for the most
recent period; (3) the cash deposit rate
for all other PRC exporters will be
108.26 percent, the current PRC–wide
rate; and (4) the cash deposit rate for all
non–PRC exporters 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 also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f) 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.
The Department is issuing and
publishing these preliminary results of
review in accordance with sections
751(a)(2)(B) and 777(i)(1) of the Act, and
19 CFR 351.221(b).
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Federal Register / Vol. 71, No. 68 / Monday, April 10, 2006 / Notices
Dated: April 3, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6–5191 Filed 4–7–06; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
A–122–838
Notice of Initiation of Antidumping
Duty Changed Circumstances Review:
Certain Softwood Lumber Products
from Canada
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to a request from
Ivis Partners Ltd. (IVIS), the Department
of Commerce is initiating a changed
circumstances review of the
antidumping duty order on certain
softwood lumber products from Canada.
EFFECTIVE DATE: April 10, 2006.
FOR FURTHER INFORMATION CONTACT:
Constance Handley or David Layton,
AD/CVD Operations, Office 1, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–0631or (202) 482–
0371, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background:
On May 22, 2002, the Department of
Commerce (Department) issued the
antidumping duty order on certain
softwood lumber products from Canada.
See Notice of Amended Final
Determination of Sales at Less Than
Fair Value and Antidumping Duty
Order: Certain Softwood Lumber
Products From Canada, 67 FR 36067
(May 22, 2002). On February 16, 2006,
IVIS requested that the Department
initiate a changed circumstances review,
in accordance with section 351.216 of
the Department’s regulations, to confirm
that IVIS is the successor–in-interest to
Ivis Wood. In its request, IVIS stated
that it purchased Ivis Wood, including
equipment and inventory, and provided
supporting documentation.
wwhite on PROD1PC65 with NOTICES
Scope of the Order
The products covered by this order
are softwood lumber, flooring and
siding (softwood lumber products).
Softwood lumber products include all
products classified under subheadings
4407.1000, 4409.1010, 4409.1090, and
4409.1020, respectively, of the
Harmonized Tariff Schedule of the
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18:48 Apr 07, 2006
Jkt 208001
United States (HTSUS), and any
softwood lumber, flooring and siding
described below. These softwood
lumber products include:
(1) Coniferous wood, sawn or chipped
lengthwise, sliced or peeled,
whether or not planed, sanded or
finger–jointed, of a thickness
exceeding six millimeters;
(2) Coniferous wood siding (including
strips and friezes for parquet
flooring, not assembled)
continuously shaped (tongued,
grooved, rabbeted, chamfered, v–
jointed, beaded, molded, rounded
or the like) along any of its edges or
faces, whether or not planed,
sanded or finger–jointed;
(3) Other coniferous wood (including
strips and friezes for parquet
flooring, not assembled)
continuously shaped (tongued,
grooved, rabbeted, chamfered, v–
jointed, beaded, molded, rounded
or the like) along any of its edges or
faces (other than wood mouldings
and wood dowel rods) whether or
not planed, sanded or finger–
jointed; and
(4) Coniferous wood flooring
(including strips and friezes for
parquet flooring, not assembled)
continuously shaped (tongued,
grooved, rabbeted, chamfered, v–
jointed, beaded, molded, rounded
or the like) along any of its edges or
faces, whether or not planed,
sanded or finger–jointed.
Although the HTSUS subheadings are
provided for convenience and U.S.
Customs purposes, the written
description of the merchandise subject
to this order is dispositive.
As specifically stated in the Issues
and Decision Memorandum
accompanying the Notice of Final
Determination of Sales at Less Than
Fair Value: Certain Softwood Lumber
Products from Canada, 67 FR 15539
(April 2, 2002) (see comment 53, item D
and comment 57, item B–7) available at
www.ia.ita.doc.gov/frn, drilled and
notched lumber and angle cut lumber
are covered by the scope of this order.
The following softwood lumber
products are excluded from the scope of
this order provided they meet the
specified requirements detailed below:
(1) Stringers (pallet components used
for runners): if they have at least
two notches on the side, positioned
at equal distance from the center, to
properly accommodate forklift
blades, properly classified under
HTSUS 4421.90.98.40.
(2) Box–spring frame kits: if they
contain the following wooden
pieces - two side rails, two end (or
top) rails and varying numbers of
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Fmt 4703
Sfmt 4703
slats. The side rails and the end
rails should be radius–cut at both
ends. The kits should be
individually packaged, they should
contain the exact number of
wooden components needed to
make a particular box spring frame,
with no further processing required.
None of the components exceeds 1’’
in actual thickness or 83’’ in length.
(3) Radius–cut box–spring-frame
components, not exceeding 1’’ in
actual thickness or 83’’ in length,
ready for assembly without further
processing. The radius cuts must be
present on both ends of the boards
and must be substantial cuts so as
to completely round one corner.
(4) Fence pickets requiring no further
processing and properly classified
under HTSUS 4421.90.70, 1’’ or less
in actual thickness, up to 8’’ wide,
6’ or less in length, and have finials
or decorative cuttings that clearly
identify them as fence pickets. In
the case of dog–eared fence pickets,
the corners of the boards should be
cut off so as to remove pieces of
wood in the shape of isosceles right
angle triangles with sides
measuring 3/4 inch or more.
(5) U.S. origin lumber shipped to
Canada for minor processing and
imported into the United States, is
excluded from the scope of this
order if the following conditions are
met: 1) the processing occurring in
Canada is limited to kiln–drying,
planing to create smooth–to-size
board, and sanding, and 2) if the
importer establishes to the
satisfaction of U.S. Customs and
Border Protection (CBP) that the
lumber is of U.S. origin.
(6) Softwood lumber products
contained in single family home
packages or kits1, regardless of tariff
classification, are excluded from the
scope of this order if the importer
certifies to items 6 A, B, C, D, and
requirement 6 E is met:
A. The imported home package or kit
constitutes a full package of the
number of wooden pieces specified
in the plan, design or blueprint
necessary to produce a home of at
least 700 square feet produced to a
specified plan, design or blueprint;
B. The package or kit must contain all
necessary internal and external
doors and windows, nails, screws,
glue, sub floor, sheathing, beams,
1 To ensure administrability, we clarified the
language of exclusion number 6 to require an
importer certification and to permit single or
multiple entries on multiple days as well as
instructing importers to retain and make available
for inspection specific documentation in support of
each entry.
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]]>Agencies
[Federal Register Volume 71, Number 68 (Monday, April 10, 2006)]
[Notices]
[Pages 18067-18072]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-5191]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-832
Pure Magnesium from the People's Republic of China: 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
the administrative review of the antidumping duty order on pure
magnesium from the People's Republic of China (``PRC'') covering the
period May 1, 2004, through April 30, 2005. We have preliminarily
determined that sales have been made below normal value. If these
preliminary results are adopted in our final results of this review, we
will instruct U.S. Customs and Border Protection (``CBP'') to assess
antidumping duties on entries of subject merchandise during the period
of review (``POR''), for which the importer-specific assessment rates
are above de minimis.
Interested parties are invited to comment on these preliminary
results. We will issue the final results no later than 120 days from
the date of publication of this notice.
EFFECTIVE DATE: April 10, 2006.
FOR FURTHER INFORMATION CONTACT: Hua Lu or Eugene Degnan, AD/CVD
Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
6478 and (202) 482-0414, respectively.
SUPPLEMENTARY INFORMATION:
Background
On May 2, 2005, the Department published a notice of opportunity to
request an administrative review of the antidumping duty order on pure
magnesium from the PRC for the period May 1, 2004, through April 30,
2005. See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation: Opportunity to Request Administrative Review,
70 FR 22631. On May 26, 2005, Tianjin Magnesium International, LTD
(``TMI'') requested that the Department conduct a new shipper review
and an administration review of the antidumping duty order covering
pure magnesium from the PRC for entries of subject merchandise produced
and exported by TMI. On June 28, 2005, the Department determined that
TMI did not meet the requirements under which the Department can
initiate a new shipper review. See Letter from Wendy Frankel to David
A. Riggle (June 28, 2005). On June 30, 2005, the Department published
in the Federal Register a notice of initiation of the antidumping duty
administrative review of pure magnesium from the PRC for the period May
1, 2004, through April 30, 2005, with respect to TMI. See Initiation of
Antidumping and Countervailing Duty Administrative Reviews, 70 FR 37749
(``Initiation Notice''). On July 20, 2005, the Department issued its
antidumping duty questionnaire to TMI.
In August and September 2005, TMI submitted its questionnaire
responses. The Department issued a letter seeking comments on surrogate
country selection and surrogate value on August 9, 2005, to which TMI
responded on September 28, 2005. On December 7, 2005, the Department
selected India as the primary surrogate country. The Department issued
a supplemental questionnaire to TMI in November 2005, to which TMI
responded in December 2005. On December 19, 2005, TMI submitted
additional surrogate value data. The Department issued a second
supplemental questionnaire to TMI and received a response in February
2006.
On January 13, 2006, the Department published a notice in the
Federal Register extending the time limit for the preliminary results
of review from January 31, 2006, until April 3, 2006. See Pure
Magnesium from the People's Republic of China: Extension of Time Limit
for the Preliminary Results of the Antidumping Duty Administrative
Review, 71 FR 2188 (January 13, 2006).
Period of Review
The POR is May 1, 2004, through April 30, 2005.
Scope of Order
Merchandise covered by this order is pure magnesium regardless of
chemistry, form or size, unless expressly excluded from the scope of
this order. Pure magnesium is a metal or alloy containing by weight
primarily the element magnesium and produced by decomposing raw
materials into magnesium metal. Pure primary magnesium is used
primarily as a chemical in the aluminum alloying, desulfurization, and
chemical reduction industries. In addition, pure magnesium is used as
an input in producing magnesium alloy. Pure magnesium encompasses
products (including, but not limited to, butt ends, stubs, crowns and
crystals) with the following primary magnesium contents:
(1) Products that contain at least 99.95[percnt] primary magnesium,
by weight (generally referred to as ``ultra pure'' magnesium);
(2) Products that contain less than 99.95[percnt] but not less than
99.8[percnt] primary magnesium, by weight (generally referred to as
``pure'' magnesium); and
(3) Products that contain 50[percnt] or greater, but less than
99.8[percnt] primary magnesium, by weight, and that do not conform to
ASTM specifications for alloy magnesium (generally referred to as
``off-specification pure'' magnesium).
``Off-specification pure'' magnesium is pure primary magnesium
containing magnesium scrap, secondary magnesium, oxidized magnesium or
impurities (whether or not intentionally added) that cause the primary
magnesium content to fall below 99.8[percnt] by weight. It generally
does not contain, individually or in combination, 1.5[percnt] or more,
by weight, of the following alloying elements: aluminum,
[[Page 18068]]
manganese, zinc, silicon, thorium, zirconium and rare earths.
Excluded from the scope of this order are alloy primary magnesium
(that meets specifications for alloy magnesium), primary magnesium
anodes, granular primary magnesium (including turnings, chips and
powder) having a maximum physical dimension (i.e., length or diameter)
of one inch or less, secondary magnesium (which has pure primary
magnesium content of less than 50[percnt] by weight), and remelted
magnesium whose pure primary magnesium content is less than 50[percnt]
by weight.
Pure magnesium products covered by this order are currently
classifiable under Harmonized Tariff Schedule of the United States
(HTSUS) subheadings 8104.11.00, 8104.19.00, 8104.20.00, 8104.30.00,
8104.90.00, 3824.90.11, 3824.90.19 and 9817.00.90. Although the HTSUS
subheadings are provided for convenience and customs purposes, our
written description of the scope is dispositive.
Surrogate Value Information
On September 28, 2005, US Magnesium LLC (``Petitioner'') and TMI
submitted comments on the appropriate surrogate values to be applied to
the factors of production (``FOP'') in this review. On October 11,
2005, Petitioner submitted comments rebutting certain factual
information concerning valuation of the FOP information submitted by
TMI. On December 19, 2005, TMI submitted additional surrogate value
data. No other party to the proceeding provided comments on surrogate
values during the course of this review.
Nonmarket-Economy-Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME'') country. In
accordance with section 771(18)(C)(i) of the 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 Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From the People's Republic of China: Preliminary Results
2001-2002 Administrative Review and Partial Rescission of Review, 68 FR
7500 (February 14, 2003). 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
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV on the NME
producer's FOP, valued in a surrogate market-economy country or
countries considered to be appropriate by the Department. In accordance
with section 773(c)(4) of the Act, in valuing the FOP, the Department
shall utilize, to the extent possible, the prices or costs of FOP in
one or more market-economy countries that are: (1) at a level of
economic development comparable to that of the NME country; and (2)
significant producers of comparable merchandise. The sources of the
surrogate factor values used in this review are discussed under the
``Normal Value'' section below and in the memorandum to the file from
Hua Lu, Case Analyst, through Robert Bolling, Preliminary Results of
Review of Pure Magnesium from the People's Republic of China: Factors
of Production Valuation Memorandum for the Preliminary Results of
Review, dated April 3, 2006 (``Factor Valuation Memorandum'').
The Department has determined that India, Indonesia, Sri Lanka, the
Philippines, and Egypt are countries comparable to the PRC in terms of
economic development. See Memorandum from Ron Lorentzen to Robert
Bolling: Administrative Review of Pure Magnesium from the People's
Republic of China (PRC): Request for a List of Surrogate Countries,
dated July 15, 2005 (``Policy Memo''). Customarily, the Department
selects an appropriate surrogate country from the Policy Memo based on
the availability and reliability of data from the countries that are
significant producers of comparable merchandise. In this case, the
Department found that India is a significant producer of comparable
merchandise. See Memorandum from Hua Lu through Robert Bolling to Wendy
Frankel, Antidumping Administrative Review of Pure Magnesium from the
People's Republic of China: Selection of a Surrogate Country, dated
December 7, 2005 (``Surrogate Country Memorandum'').
The Department used India as the primary surrogate country, and,
accordingly, has calculated NV using Indian prices to value the PRC
producers' FOP, when available and appropriate. See Surrogate Country
Memorandum and Factor Valuation Memorandum. The Department has obtained
and relied upon publicly available information to value FOP.
In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
in an antidumping administrative review, interested parties may submit
publicly available information to value factors of production within 20
days after the date of publication of the preliminary results of
review.
Separate Rates
In proceedings involving NME countries, the Department begins with
a rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assigned a single
antidumping duty deposit rate. It is the Department's policy to assign
all exporters of merchandise subject to administrative review in an NME
country this single rate unless an exporter can demonstrate that it is
sufficiently independent so as to be entitled to a separate rate.
The Department has considered whether each reviewed company based
in the PRC is eligible for a separate rate. The Department's separate-
rate test to determine whether the exporters are independent from
government control does not consider, in general, macroeconomic/border-
type controls, e.g., export licenses, quotas, and minimum export
prices, particularly if these controls are imposed to prevent dumping.
The test focuses, rather, on controls over the investment, pricing, and
the output decision-making process at the individual firm level. See
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished,
from the People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 62 FR 61276, 61279 (November 17, 1997), and
Preliminary Determination of Sales at Less than Fair Value: Honey from
the People's Republic of China, 60 FR 14725 (March 20, 1995).
To establish whether a firm is sufficiently independent from
government control to be entitled to a separate rate, the Department
analyzes each exporting entity under a test arising out of 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 modified by
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''). 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 government
control over export activities. See Silicon Carbide and Final
Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from
the People's
[[Page 18069]]
Republic of China, 60 FR 22544 (May 8, 1995).
TMI provided company-specific separate-rates information and stated
that it met the standards for the assignment of separate rates.
Consequently, the Department analyzed whether TMI should receive a
separate rate.
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; or (3) any other formal
measures by the government decentralizing control of companies. See
Final Determination of Sales at Less Than Fair Value: Sparklers From
the People's Republic of China, 56 FR 20588 (May 6, 1991).
B. Absence of De Facto Control
As stated in previous cases, there is some evidence that certain
enactments of the PRC central government have not been implemented
uniformly among different sectors and/or jurisdictions in the PRC. See
Final Determination of Sales at Less Than Fair Value: Certain Preserved
Mushrooms from the People's Republic of China, 63 FR 72255 (December
31, 1998). Therefore, the Department has preliminarily determined that
an analysis of de facto control is critical in determining whether
respondent is, in fact, subject to a degree of government control which
would preclude the Department from assigning separate rates. The
Department typically considers four factors in evaluating whether each
respondent is subject to de facto government control of its export
functions: (1) Whether the exporter sets its own export prices
independent of the government and without the approval of a government
authority; (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 its management; and (4) whether the respondent retains the
proceeds of its export sales and makes independent decisions regarding
disposition of profits or financing of losses. See Final Determination
of Sales at Less Than Fair Value: Furfuryl Alcohol From the People's
Republic of China, 60 FR 22544 (May 8, 1995).
C. Analysis
TMI placed on the record statements and documents to demonstrate
absence of de jure control. In its questionnaire responses, TMI
reported that it operated on market principles and was run
independently and separately from the national, provincial, or local
governments, including ministries, or offices of those governments. See
TMI's August 10, 2005, Section A questionnaire response (``TMI AQR'')
at 2. TMI submitted a copy of its business license and stated it is
renewed upon expiration of the term by filing an application to renew
as long as the company maintains its status, as per the initial
certificate. TMI reported that the subject merchandise did not appear
on any government list regarding export provisions or export licensing,
and the subject merchandise is not subject to export quotas or export
control licenses imposed by the PRC government. See TMI AQR at 5. TMI
explained that the license imposed no limitations on the operations of
TMI, nor created special entitlements to TMI. Furthermore, TMI stated
that the Chamber of Commerce played no role in coordinating the export
activities of TMI. See TMI AQR at 7. TMI submitted a copy of the Trade
Law of the People's Republic of China to demonstrate that it had full
rights to import and export. Based upon an examination of TMI's
applicable laws and questionnaire responses, and TMI's business
license, the Department preliminarily finds that TMI has demonstrated
the absence of de jure government control over its export activities.
In support of its assertion of an absence of de facto government
control, TMI reported the following: (1) During the POR, TMI sold the
subject merchandise directly to unaffiliated U.S. customers and
negotiated prices directly with its customers, and these prices were
not subject to review by, or guidance from, any government
organization; (2) No organization outside of TMI reviewed, or approved,
any aspect of its sales transactions; (3) TMI's owners selected the
management, and no government authorities controlled the selection
process, or had power to veto selections; and (4) TMI's profits may be
retained in the company for further business purposes, or distributed
to the shareholders. See TMI AQR at 9. Additionally, TMI explained that
the owners of TMI decided how profits were used. Furthermore, TMI
stated that it is not required to sell foreign currency earned (or some
portion of it) to the government and that it may freely control and use
the foreign currency it earned on sales of the subject merchandise to
the United States by further investing the profit in the business, or
distributing it to the owners. See TMI AQR at 10. The Department
preliminarily finds that TMI has demonstrated the absence of de facto
government control over its export activities.
The evidence placed on the record of this administrative review by
TMI demonstrates the absence of government control, both in law and in
fact, with respect to TMI's exports of the merchandise under review. As
a result, for the purposes of these preliminary results, the Department
is granting a separate, company-specific rate to TMI, the exporter
which shipped the subject merchandise to the United States during the
POR.
Date of Sale
19 CFR 351.401(i) states that ``in identifying the date of sale of
the subject merchandise or foreign like product, the Secretary normally
will use the date of invoice, as recorded in the exporter or producer's
records kept in the normal course of business. However, the Secretary
may use a date other than the date of invoice if the Secretary is
satisfied that a different date better reflects the date on which the
exporter or producer establishes the material terms of sale.'' 19 CFR
351.401(i); see also Allied Tube and Conduit Corp. v. United States,
132 F. Supp. 2d 1087, 1090-1093 (CIT 2001).
After examining the questionnaire responses and the sales
documentation that TMI placed on the record, we preliminarily determine
that the invoice date is the most appropriate date of sale for TMI. We
made this determination based on record evidence which demonstrates
that TMI's invoices establish the material terms of sale. Thus, the
record evidence does not rebut the presumption that the invoice date is
the proper date of sale. See Preliminary Determination of Sales at Less
Than Fair Value: Saccharin From the People's Republic of China, 67 FR
79054 (December 27, 2002).
Normal Value Comparisons
To determine whether sales of pure magnesium to the United States
by TMI were made at less than NV, we compared Export Price (``EP'') to
NV, as described in the ``Export Price'' and ``Normal Value'' sections
of this notice.
Export Price
In accordance with section 772(a) of the Act, EP is the price at
which the subject merchandise is first sold (or agreed to be sold)
before the date of
[[Page 18070]]
importation by the producer or exporter of the subject merchandise
outside of the United States to an unaffiliated purchaser in the United
States or to an unaffiliated purchaser for exportation to the United
States, as adjusted under section 772(c) of the Act. In accordance with
section 772(a) of the Act, we used EP for TMI's U.S. sales because the
subject merchandise was sold directly to the unaffiliated customers in
the United States prior to importation and because CEP was not
otherwise indicated.
We compared NV to individual EP transactions, in accordance with
section 777A(d)(2) of the Act.
We calculated EP for TMI based on delivered prices to unaffiliated
purchasers in the United States. We made deductions from the U.S. sales
price for movement expenses in accordance with section 772(c)(2)(A) of
the Act. These included foreign inland freight from the plant to the
port of exportation, and where applicable, ocean freight and marine
insurance. No other adjustments to EP were reported or claimed. See
memorandum from Hua Lu, Case Analyst, through Robert Bolling, Program
Manager, to the file, Preliminary Results of Review of the Order on
Pure Magnesium from the People's Republic of China: Program Analysis
for the Preliminary Results of Review, dated April 3, 2006.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine NV using an FOP methodology if: (1) the merchandise is
exported from a non-market economy country; and (2) 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 will base NV on FOP because the presence of government
controls on various aspects of these economies renders price
comparisons and the calculation of production costs invalid under our
normal methodologies.
FOP includes: (1) hours of labor required; (2) quantities of raw
materials employed; (3) amounts of energy and other utilities consumed;
and (4) representative capital costs. The Department used the FOP
reported by respondent for materials, energy, labor, by-product, and
packing.
With regard to both the Indian import-based surrogate values and
the market-economy input values, we have 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; therefore,
it is reasonable to infer that all exports to all markets from these
countries may be subsidized. See China National Machinery Import &
Export Corporation v. United States, 293 F. Supp. 2d 1334 (CIT 2003),
aff'd, 104 Fed. Appx. 183 (Fed. Cir. 2004); Certain Helical Spring Lock
Washers from the People's Republic of China; Final Results of
Administrative Review, 61 FR 66255 (December 17, 1996), at Comment 1;
and Automotive Replacement Glass Windshields From the People's Republic
of China: Final Results of Administrative Review, 69 FR 61790 (October
21, 2004). The Department is also guided by the legislative history not
to conduct a formal investigation to ensure that such prices are not
subsidized. See H.R. Rep. 100-576 (1988) at 590. Rather, Congress
instructed the Department to base its decision on information that is
available to it at the time it is making its determination. Therefore,
the Department has not used prices from these countries in calculating
the Indian import-based surrogate values.
Factor Valuations
In accordance with section 773(c) of the Act, the Department
calculated NV based on FOP reported by respondent for the POR. To
calculate NV, the reported per-unit factor quantities were multiplied
by publicly available Indian surrogate values (except as noted below).
In selecting the surrogate values, the Department considered the
quality, specificity, and contemporaneity of the data. As appropriate,
the Department adjusted input prices by including freight costs to make
them 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, where appropriate
(i.e., where the sales terms for the market-economy inputs were not
delivered 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 (Fed. Cir. 1997). For a detailed description of all surrogate
values used for TMI, see Factor Valuation Memorandum.
The Department valued the following raw material inputs:
ferrosilicon, dolomite, flux, fluorite and sulfur using the weighted-
average unit import values derived from the World Trade Atlas[reg]
online (``Indian Import Statistics''), which are published by the
Directorate General of Commercial Intelligence and Statistics
(``DGCI&S''), Ministry of Commerce of India, are reported in rupees,
and are contemporaneous with the POR. See Factor Valuation Memorandum.
Where the Department could not obtain publicly available information
contemporaneous with the POR with which to value FOP, the Department
adjusted the surrogate values using the Indian Wholesale Price Index
(``WPI'') as published in the International Financial Statistics of the
International Monetary Fund.
To value electricity, the Department used values from the
International Energy Agency Key World Energy Statistics (2003 edition).
Because the value was not contemporaneous with the POR, the Department
adjusted the rate for inflation. See Factor Valuation Memorandum.
The Department valued steam coal using the 2003/2004 Tata Energy
Research Institute's Energy Data Directory & Yearbook (``TERI Data'').
The Department was able to determine, through its examination of the
2003/2004 TERI Data, that: a) the annual TERI Data publication is
complete and comprehensive because it covers all sales of all types of
coal made by Coal India Limited and its subsidiaries, and b) the annual
TERI Data publication prices are exclusive of duties and taxes. Because
the value was not contemporaneous with the POR, the Department adjusted
the rate for inflation. See Factor Valuation Memorandum at page 5.
The Department used Indian transport information in order to value
the inland freight cost of the raw materials. The Department determined
the best available information for valuing truck freight to be from
www.infreight.com. This source provides daily rates from six major
points of origin to five destinations in India during the POR. The
Department obtained a generally publicly available price quote on the
first day of each month of the POR from each point of origin to each
destination and averaged the data accordingly. See Factor Valuation
Memorandum at page 6.
The Department used two sources to calculate a surrogate value for
domestic brokerage expenses. The Department averaged December 2003-
November 2004 data contained in Essar Steel's February 28, 2005, public
version response submitted in the antidumping administrative review of
hot-rolled carbon steel flat products from India with February 2004-
January 2005 data
[[Page 18071]]
contained in Agro Dutch's May 24, 2005, public version response
submitted in the antidumping investigation of certain preserved
mushrooms from India. The brokerage expense data reported by Essar
Steel and Agro Dutch in their public versions is ranged data. The
Department first derived an average per-unit amount from the source.
Then, the Department averaged the two per-unit amounts to derive an
overall average rate for the POR. See Factor Valuation Memorandum at
page 7.
To value marine insurance, the Department obtained a generally
publicly available price quote from https://www.rjgconsultants.com/
insurance.html, a market-economy provider of marine insurance. See
Factor Valuation Memorandum at page 7.
To value international freight, the Department obtained a generally
publicly available price quote from https://www.maersksealand.com/ HomePage/appmanager/, a market-economy provider of international
freight services. See Factor Valuation Memorandum at page 7.
For direct labor, indirect labor, selling, general and
administrative expenses (``SG&A'') labor, and packing labor, consistent
with 19 CFR 351.408(c)(3), the Department used the PRC regression-based
wage rate as reported on the Import Administration's home page, Import
Library, Expected Wages of Selected NME Countries, revised in November
2005, https://ia.ita.doc.gov/wages/. The source of these
wage rate data on the Import Administration's web site is the Yearbook
of Labour Statistics 2003, ILO, (Geneva: 2003), Chapter 5B: Wages in
Manufacturing. The years of the reported wage rates range from 1996 to
2003. Because this regression-based wage rate does not separate the
labor rates into different skill levels or types of labor, the
Department has applied the same wage rate to all skill levels and types
of labor reported by each respondent.
To value factory overhead, depreciation, SG&A and profit, the
Department used the 2004 audited financial statements for an Indian
producer of aluminum, Hindalco Industries Limited (``Hindalco''). See
Factor Valuation Memorandum at page 6 for a full discussion of the
calculation of these ratios from Hindalco's financial statements.
TMI reported that it recovered cement clinker from the production
of pure magnesium for resale. The Department offset TMI's NV by the
amount of cement clinker that TMI sold. See Factor Valuation Memorandum
at page 6 for a complete discussion of this issue.
Finally, the Department used Indian Import Statistics to value
material inputs for packing which, for TMI, are steel bands and plastic
bags. The Department used Indian Import Statistics data for the POR for
packing materials. See Factor Valuation Memorandum at page 6.
Currency Conversion
The Department made currency conversions into U.S. dollars, in
accordance with section 773A(a) of the Act, based on the exchange rates
in effect as certified by the Federal Reserve Bank on the dates of the
U.S. sales.
Weighted-Average Dumping Margins
The weighted-average dumping margin for TMI is as follows:
------------------------------------------------------------------------
Weighted-Average
Exporter/Manufacturer Margin (percentage)
------------------------------------------------------------------------
TMI................................................ 89.05
------------------------------------------------------------------------
Disclosure
The Department will disclose calculations performed for these
preliminary results to the parties within five days of the date of
publication of this notice in accordance with 19 CFR 351.224(b). Any
interested party may request a hearing within 30 days of publication of
these preliminary results. See 19 CFR 351.310(c). Any hearing, if
requested, will be held 37 days after the date of publication of this
notice. See 19 CFR 351.310(d). Interested parties may submit case
briefs and/or written comments no later than 30 days after the date of
publication of these preliminary results of review. See 19 CFR
351.309(c)(ii). Rebuttal briefs and rebuttals to written comments,
limited to issues raised in such briefs or comments, may be filed no
later than 35 days after the date of publication. See 19 CFR
351.309(d). The Department requests that parties submitting written
comments also provide the Department with an additional copy of those
comments on diskette. The Department will issue the final results of
this administrative review, which will include the results of its
analysis of issues raised in any such comments, within 120 days of
publication of these preliminary results, pursuant to section
751(a)(3)(A) of the Act.
Assessment Rates
Upon issuance of the final results, the Department will determine,
and CBP shall assess, antidumping duties on all appropriate entries.
The Department will issue appropriate assessment instructions directly
to CBP upon completion of this review. If these preliminary results are
adopted in our final results of review, the Department will direct CBP
to assess the resulting rate against the entered customs value for the
subject merchandise on each importer's/customer's entries during the
POR. Additionally, the Department will instruct CBP to assess
antidumping duties for rescinded companies 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)(1)(I).
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) The cash deposit
rate for the reviewed company will be the rate listed in the final
results of review (except where the rate for a particular company is de
minimis, i.e., less than 0.5 percent, no cash deposit will be required
for that company); (2) for previously investigated companies not listed
above, the cash deposit rate will continue to be the company-specific
rate published for the most recent period; (3) the cash deposit rate
for all other PRC exporters will be 108.26 percent, the current PRC-
wide rate; and (4) the cash deposit rate for all non-PRC exporters 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 also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) 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.
The Department is issuing and publishing these preliminary results
of review in accordance with sections 751(a)(2)(B) and 777(i)(1) of the
Act, and 19 CFR 351.221(b).
[[Page 18072]]
Dated: April 3, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-5191 Filed 4-7-06; 8:45 am]
BILLING CODE 3510-DS-S
