Sodium Metal from France: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 30605-30610 [E8-11876]

Download as PDF Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices determinations for these investigations no later than 140 days after the date of issuance of the initiation, in accordance with section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act). On May 20, 2008, the petitioner, Leggett & Platt Inc., made a request pursuant to 19 CFR 351.205(b)(2) and (e) for a 50-day postponement of the preliminary determinations.1 The petitioner requested postponement of the preliminary determinations in order to allow the Department additional time to do a thorough investigation of the respondents in these investigations. For the reason identified by the petitioner and because there are no compelling reasons to deny the request, the Department is postponing the deadline for the preliminary determinations under section 733(c)(1)(A) of the Act by 50 days to July 30, 2008. The deadline for the final determinations will continue to be 75 days after the date of the preliminary determinations, unless extended. This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1). Dated: May 21, 2008. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E8–11854 Filed 5–27–08; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration (A–427–827) Sodium Metal from France: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The U.S. Department of Commerce (the Department) preliminarily determines that sodium metal from France (sodium metal) is being, or is likely to be, sold in the United States at less than fair value (LTFV), as provided in section 733(b) of mstockstill on PROD1PC66 with NOTICES AGENCY: 1 Although the petitioner did not file its request 25 days or more before the scheduled date of the preliminary determination, the Department has determined to accept the request pursuant to its authority under 19 CFR 351.302(b). We find that good cause exists to extend the deadline in order to allow the Department additional time to analyze the questionnaire responses in the investigation of uncovered innerspring units from the PRC. Further, for purposes of administrative efficiency, the Department concludes that the Vietnam, South Africa and PRC cases should remain on a consistent timeline. VerDate Aug<31>2005 17:43 May 27, 2008 Jkt 214001 the Tariff Act of 1930, as amended (the Act). The estimated margin of sales at LTFV is listed in the ‘‘Suspension of Liquidation’’ section of this notice. Interested parties are invited to comment on this preliminary determination. Pursuant to requests from interested parties, we are postponing for 60 days the final determination and extending the provisional measures from a four– month period to not more than six months. Accordingly, we will make our final determination not later than 135 days after publication of the preliminary determination. EFFECTIVE DATE: May 28, 2008. FOR FURTHER INFORMATION CONTACT: Dennis McClure or Joy Zhang, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482–5973 or (202) 482– 1168, respectively. SUPPLEMENTARY INFORMATION: Background On October 23, 2007, E.I. DuPont de Nemours & Co. Inc. (the petitioner) filed a petition on sodium metal from France. In a supplement to the petition, the petitioner provided information demonstrating reasonable grounds to believe or suspect that sales of sodium metal in the home market were made at prices below the fully absorbed cost of production (COP), within the meaning of section 773(b) of the Act, and requested that the Department conduct a sales–below-cost investigation. See November 8, 2007, supplement to the petition at page 10. We found that the petitioner provided a reasonable basis to believe or suspect that the French producer was selling sodium metal in France at prices below the COP. See section 773(b)(2)(A)(i) of the Act. On November 13, 2007, the Department initiated the antidumping duty investigation of sodium metal from France. See Sodium Metal from France: Notice of Initiation of Antidumping Duty Investigation, 72 FR 65295 (November 20, 2007) (Initiation Notice). The Department also initiated a country–wide sales–below-cost investigation and requested that respondent, MSSA S.A.S, respond to section D of the Department’s antidumping questionnaire. See Initiation Notice; see also the Department’s questionnaire issued to MSSA S.A.S. on January 4, 2008. The Department requested comments on model–matching criteria in its letter to interested parties, dated November PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 30605 16, 2007. On December 6, 2007, the petitioner submitted comments on the model–matching criteria. On December 13, 2007, MSSA S.A.S., MSSA Company, and Columbia Sales International (collectively, MSSA) submitted comments on the proposed model–matching criteria. On December 14 and 17, 2007, the petitioner submitted additional comments on the proposed model–matching criteria. On December 19, 2007, MSSA responded to the petitioner’s comments concerning model–matching criteria. For an explanation of the model–matching criteria used, see Model Match section, below. On December 6, 2007, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that the industry in the United States is materially injured by reason of imports of sodium metal from France that are alleged to be sold in the United States at LTFV. See Sodium Metal From France, Investigation No. 731–TA–1135 (Preliminary), 73 FR 15777 (March 25, 2008). The ITC notified the Department of these findings. On December 14, 2007, MSSA wrote to inform the Department that its home market may not be viable because most of its sales in most markets are governed by long–term contracts. In addition, MSSA also explained that the Department may need to expand the period of investigation (POI) to capture sales from one of its larger contracts in the United States. On December 19, 2007, the petitioner submitted a letter arguing against extending the POI. On December 20, 2007, MSSA submitted a response to the petitioner’s comments on extending the POI. See Date of Sale/ Market Viability section, below. On February 8, 2008, the Department received the Section A questionnaire response from MSSA. On February 20, 2008, the Department received a letter from MSSA explaining that it had made a small percentage of sales to affiliated parties in the United States for further manufacturing and downstream sales and asked that it be excused from reporting these sales. On February 25, 2008, the Department received the Sections B and C response from MSSA.1 On March 6, 2008, MSSA responded to the Department’s Section A supplemental questionnaire. On March 7, 2008, the petitioner filed a sales–below-cost allegation based on sales to Germany. On March 18, 2008, the Department postponed the 1 For Section B, MSSA originally reported thirdcountry sales to Germany using invoice date as the date of sale. E:\FR\FM\28MYN1.SGM 28MYN1 30606 Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices mstockstill on PROD1PC66 with NOTICES preliminary determination of the instant antidumping duty investigation. See Sodium Metal from France: Postponement of Preliminary Determination of Antidumping Duty Investigation, 73 FR 14440 (March 18, 2008). After reviewing the Sections B and C response from MSSA, the Department issued a supplemental questionnaire to MSSA on March 10, 2008. On March 21, 2008, the Department notified MSSA that we found that the home market was viable and were requiring it to respond to Section B and Section D of the questionnaire with regard to the French market. See Date of Sale/Market Viability section, below. On April 4, 2008, we received MSSA’s Section B response with regard to the French market. On April 11, 2008, we received MSSA’s supplemental Sections B and C response. On April 16, 2008, we issued an additional supplemental Sections B and C questionnaire to MSSA. On April 14 and 21, 2008, we received MSSA’s Section D response. On April 21, 2008, the petitioner submitted a targeted dumping allegation and comments on MSSA’s Section A and C responses. On April 22, 2008, the Department issued a supplemental questionnaire with regard to Sections A and C. On April 28, 2008, MSSA responded to the Department’s April 16, 2008, supplemental Sections B and C questionnaire. On April 30, 2008, MSSA responded to the Department’s April 22, 2008, supplemental questionnaire with regard to Sections A and C. On April 25, 2008, the Department issued a Section D supplemental questionnaire. MSSA responded to the Section D supplemental questionnaire on May 2 and 7, 2008. On April 30, 2008, the Department requested that the petitioner respond to additional questions with regard to its targeted dumping allegation. The petitioner responded on May 6, 2008. On May 7, 2008, MSSA requested that the Department postpone the final determination and extend the provisional measures. See Postponement of Final Determination and Extension of Provisional Measures section, below. Targeted Dumping Allegation The petitioner submitted an allegation of targeted dumping on April 21, 2008. See section 777A(d)(1)(B) of the Act. In its allegation, the petitioner asserts that there are patterns of constructed export prices (CEPs) for comparable merchandise that differ significantly among purchasers. We note that all of MSSA’s U.S. sales are CEP sales. The VerDate Aug<31>2005 16:31 May 27, 2008 Jkt 214001 Department requested additional information and clarification from the petitioner with respect to its targeted dumping allegation. See Letter from James Terpstra to the petitioner, dated May 1, 2008. On May 6, 2008, the petitioner provided its response. On May 16, 2008, MSSA argued that the petitioner miscalculated the gross unit price of the alleged largest targeted customer. New Targeted Dumping Test The statute allows the Department to employ the average–to-transaction methodology if: 1) there is a pattern of export prices that differ significantly among purchasers, regions, or periods of time, and 2) the Department explains why such differences cannot be taken into account using the average–toaverage or transaction–to-transaction methodology.2 In the recent post–preliminary determination memorandum in the antidumping investigation of new pneumatic off–the-road tires for the People’s Republic of China, the Department applied a new targeted dumping standard and methodology for analyzing targeted dumping allegations.3 We conducted a customer–targeted dumping analysis for MSSA using the methodology described in the OTR Tires Targeted Dumping Memorandum. This is also the test put forward in the Department’s Proposed Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations; Request for Comment, 73 FR 26371 (May 9, 2008). The methodology we employed involves a two–stage test: the first stage addresses the pattern requirement, and the second stage addresses the significant difference requirement. All price comparisons have been done on the basis of identical merchandise (i.e., by control number or CONNUM). The test procedures are the same for customer, regional, and time period targeted dumping allegations,4 even though the example given in the general description below applies to customer targeting. In the first stage of the test, referred to as the ‘‘standard deviation test,’’ the Department determined, on an 2 Section 777A(d)(1)(B) of the Act. Memorandum to David M. Spooner, ‘‘PostPreliminary Determination of Targeted Dumping’’ (May 19, 2008), (OTR Tires Targeted Dumping Memorandum). This new test was first applied in the investigations of certain steel nails from the United Arab Emirates and the People’s Republic of China. 4 The petitioner made no targeted dumping allegations based on region or time period in this investigation. 3 See PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 exporter–specific basis, the share of the alleged targeted customer’s purchases of subject merchandise (by sales value) that are at prices more than one standard deviation below the weighted– average price to all customers of that exporter, targeted and non–targeted. We calculated the standard deviation on a product–specific basis (i.e., CONNUM by CONNUM) using the POI–wide average prices (weighted by sales value) for each alleged targeted customer and each distinct non–targeted customer. If that share did not exceed 33 percent of the total value of the exporter’s sales of subject merchandise to the alleged targeted customer, then the pattern requirement is not met and the Department did not conduct the second stage of the test. However, if that share exceeded 33 percent of the total value of the exporter’s sales of subject merchandise to the alleged targeted customer, then the pattern requirement is met and the Department proceeded to the second stage of the test. Specifically, the Department examined in the second stage all of the sales of identical merchandise (i.e., by CONNUM) by that exporter to the alleged targeted customer. From those sales, we determined the total value of sales for which the difference between (i) the sales–weighted-average price to the alleged targeted customer and (ii) the next higher sales–weighted-average price to a non–targeted customer exceeded the average price gap (weighted by sales value) for the non– targeted group.5 Each of the price gaps in the non–targeted group was weighted by the combined sales value associated with the pair of prices to non–targeted customers that make up the price gap. In doing this analysis, the alleged targeted customers were not included in the non–targeted group; each alleged targeted customer’s average price was compared to only the average prices to non–targeted customers. If the share of the sales that met this test exceeded five percent of the total sales value of subject merchandise to the alleged targeted customer,6 the significant difference 5 The next higher price is the sales-weightedaverage price to the non-targeted group that is above the sales-weighted-average price to the alleged targeted group. For example, if the sales-weightedaverage price to the alleged targeted group is $7.95 and the sales-weighted-average prices to the nontargeted group are $8.30, $8.25, and $7.50, we would calculate the difference between $7.95 and $8.25 because this is the next higher price in the non-targeted group above $7.95 (the average price to the targeted group). 6 For example: If non-targeted A’s weightedaverage price is $1.00 with a total sales value of $100 and non-targeted B’s weighted-average price is $0.95 with a total sales value of $120, then the E:\FR\FM\28MYN1.SGM 28MYN1 Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices requirement was met and the Department determined that customer targeting occurred. Once the Department determined that the customer pattern–of-price differences were significant, we applied the transaction–to-average methodology to any targeted sales and applied the average–to-average methodology to the remaining non–targeted sales.7 When calculating the weighted–average margin, we combined the margin calculated for the targeted sales with the margin calculated for the non–targeted sales, without offsetting any margins found among the targeted sales. We based all of our targeted dumping calculations on the U.S. net price (‘‘NETPRIU’’) determined in our margin program in our Preliminary Calculation Memorandum. See ‘‘Calculation Memorandum for the Preliminary Determination – MSSA,’’ dated May 21, 2008, (Preliminary Calculation Memorandum) on file in the Central Records Unit, Room 1117 of the main Department building. Results of the Application of the New Targeted Dumping Test For purposes of this preliminary determination on targeted dumping, we have applied the above–described test to the U.S. sales data reported by MSSA. Our observations and results are discussed in more detail in a separate memorandum placed on the record of this investigation. See Preliminary Calculation Memorandum. We preliminarily determine that there is no pattern of constructed export prices for comparable merchandise that differs significantly among customers for MSSA. Therefore, we applied the average–to-average methodology to all U.S. sales by MSSA. mstockstill on PROD1PC66 with NOTICES Comments by Interested Parties Parties may comment on the Department’s overall preliminary difference of $0.05 ($1.00¥$0.95) would be weighted by $220 ($100 + $120). 7 Consistent with 19 CFR 351.414(f)(2), we have limited our application of the average-to-transaction methodology to the targeted sales under 19 CFR 351.414(f)(1)(i). As specified in the preamble to the regulations, the Department will apply the averageto-transaction methodology solely to address the practice of targeting. See Antidumping Duties; Countervailing Duties; 62 FR 27296, 27375 (May 19, 1997). In the preamble, the Department indicated that where the targeting is so widespread that it is administratively impractical to segregate targeted sales prices from the normal pricing behavior of the company, it may be necessary to apply the averageto-transaction methodology to all sales of a particular respondent. In this case, however, we are able to segregate the targeted sales prices, by customer, where appropriate, from the normal pricing behavior of the company and, therefore, have limited our application of the average-totransaction methodology to the sales to the targeted group. VerDate Aug<31>2005 16:31 May 27, 2008 Jkt 214001 determination application of the new targeted dumping test in this proceeding. Consistent with 19 CFR 351.309(c)(2), all comments should be filed in the context of the case and rebuttal briefs. See the ‘‘Public Comment’’ section below for details regarding the briefing schedule for this investigation. Period of Investigation The POI is October 1, 2006 to September 30, 2007. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of the Investigation The merchandise covered by this investigation includes sodium metal (Na), in any form and at any purity level. Examples of names commonly used to reference sodium metal are sodium metal, sodium, metallic sodium, and natrium. The merchandise subject to this investigation is classified in the Harmonized Tariff Schedule of the United States (HTSUS) subheading 2805.11.0000. The American Chemical Society Chemical Abstract Service (CAS) has assigned the name ‘‘Sodium’’ to sodium metal. The CAS registry number is 7440–23–5. For purposes of the investigation, the narrative description is dispositive, not the tariff heading, CAS registry number or CAS name, which are provided for convenience and customs purposes. Model Match We have taken into account the comments filed by MSSA and the petitioner concerning model–matching criteria. We have used the following criteria for model matching, since both parties were in substantial agreement with the product characteristics. In accordance with section 771(16) of the Act, all products produced by the respondent covered by the description in the Scope of Investigation section, above, and sold in France during the POI are considered to be foreign like products for purposes of determining appropriate product comparisons to U.S. sales. We have relied on five criteria to match U.S. sales of subject merchandise to comparison market sales of the foreign like product: 1) calcium impurity, 2) potassium impurity, 3) chloride/bromide impurity, 4) oxygen impurity, and 5) form. Where there were no sales of identical merchandise in the home market made in the ordinary course of trade to compare to U.S. sales, we compared U.S. sales to the next most similar foreign like product on the basis of the characteristics listed above. On January 4, 2008, the Department issued PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 30607 the questionnaire containing the criteria identified above. See the Department’s antidumping questionnaire issued to MSSA on January 4, 2008, at pages B– 8 through B–10 and C–7 through C–9. Date of Sale/Market Viability Section 351.401(i) of the Department’s regulations states that the Department normally will use the date of invoice, as recorded in the producer’s or exporter’s records kept in the ordinary course of business, as the date of sale. Therefore, where there were no long–term contracts which were signed and effective, during the POI, we determined that the invoice date established the material terms of sale. The regulations further provide that the Department may use a date other than the date of the invoice if the Secretary is satisfied that a different date better reflects the date on which the material terms of sale are established. The Department has a long– standing practice of finding that, where shipment date precedes invoice date, shipment date better reflects the date on which the material terms of sale are established. See 19 CFR 351.401(i); see also Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp from Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues and Decision Memorandum at Comment 10; and Notice of Final Determination of Sales at Less Than Fair Value: Structural Steel Beams from Germany, 67 FR 35497 (May 20, 2002), and accompanying Issues and Decision Memorandum at Comment 2. Therefore, we used the earlier of shipment date or invoice date as the date of sale in accordance with our practice. In MSSA’s original response to Section B of the questionnaire, MSSA reported its response based upon the invoice date as the date of sale, which indicated that France was not a viable home market. Therefore, MSSA reported sales to Germany as its viable market for comparison to its U.S. sales. In our review of MSSA’s sales contracts, we determined that some contracts did establish the material terms of sale because no changes to the material terms were made. Therefore, where those contracts were signed and the effective date was within the POI, we used the effective date as the date of sale for those sales made pursuant to those contracts. See Preliminary Calculation Memorandum. Fair Value Comparisons To determine whether sales of sodium metal from France were made in the E:\FR\FM\28MYN1.SGM 28MYN1 30608 Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices United States at less than normal value (NV), we compared the CEP to the NV, as described in the Constructed Export Price and Normal Value sections below. In accordance with section 777A(d)(1) of the Act, we calculated the weighted– average prices for NV and compared these to the weighted–average of CEP. mstockstill on PROD1PC66 with NOTICES Constructed Export Price A. Affiliation Through Agency In accordance with section 771(33)(G) of the Act, we are treating Columbia Sales International as an affiliate of MSSA. During the POI, MSSA made sales to unaffiliated customers in the United States through three channels of distribution. The first two channels of distribution are sales by MSSA Co. with the assistance of Columbia Sales International, its exclusive U.S. sales agent. The third channel includes sales purchased by Columbia Sales International and resold to the unaffiliated U.S. customer. In MSSA’s March 6, 2008, supplemental response, MSSA responded to additional questions concerning its relationship with Columbia Sales International. In Exhibit A–Supp–1, MSSA provided its ‘‘Exclusive Agency Agreement’’ with Columbia Sales International. The ‘‘Exclusive Agency Agreement’’ and other information on the record indicate that Columbia Sales International and MSSA are affiliated through a principal/ agent relationship. See, e.g., Stainless Steel Sheet and Strip in Coils from Taiwan: Final Results and Partial Rescission of Antidumping Duty Administrative Review, 67 FR 6682 (February 13, 2002), and accompanying Issues and Decision Memorandum at Comment 23, upheld in Chia Far Industrial Factory Co. v. United States, 343 F. Supp. 2d 1344, 1356 (CIT 2004) (‘‘when there exists a principal who has the potential to control pricing and/or the terms of sale through the end– customer, Commerce will find agency and thus affiliation’’). Furthermore, as explained in the Notice of Final Determination of Sales at Less than Fair Value: Engineered Processed Gas Turbo–Compressor Systems, Whether Assembled or Unassembled, and Whether Complete or Incomplete, from Japan, 62 FR 24392, 24402–24403 (May 5, 1997), the Department may examine a range of criteria to determine if an agency relationship exists. For example, the Department may look at (1) the foreign producer’s role in negotiating price and other terms of sale; (2) the extent of the foreign producer’s interaction with the U.S. customer; (3) whether the agent/reseller maintains inventory; (4) whether the agent/reseller VerDate Aug<31>2005 16:31 May 27, 2008 Jkt 214001 takes title to the merchandise and bears the risk of loss; (5) whether the agent/ reseller further processes or otherwise adds value to the merchandise; (6) the means of marketing a product by the producer to the U.S. customer in the pre–sale period; and (7) whether the identity of the producer on sales documentation inferred such an agency relationship during the sales transactions. Due to the proprietary nature of MSSA’s response, we have applied these factors to the facts of this case and included further analysis in our Preliminary Calculation Memorandum. B. Calculation of U.S. Price For the price to the United States, we used CEP in accordance with section 772(b) of the Act. We calculated CEP for those sales where a person in the United States, affiliated with the foreign exporter or acting for the account of the exporter, made the sale to the first unaffiliated purchaser in the United States of the subject merchandise. We based CEP on the packed prices charged to the first unaffiliated customer in the United States and the applicable terms of sale. In accordance with section 772(c)(2) of the Act, we made deductions, where appropriate, for movement expenses including U.S. warehouse expense, inland freight, insurance, brokerage & handling, demurrage, international freight, and U.S. customs duties. For CEP, in accordance with section 772(d)(1) of the Act, when appropriate, we deducted from the starting price those selling expenses that were incurred in selling the subject merchandise in the United States, including direct selling expenses (cost of credit and warranty). These expenses include certain indirect selling expenses incurred by affiliated U.S. distributors. See Preliminary Calculation Memorandum. We also deducted from CEP an amount for profit in accordance with sections 772(d)(3) and (f) of the Act. Normal Value A. Home Market Viability and Comparison Market Selection To determine whether there was a sufficient volume of sales in the home market to serve as a viable basis for calculating NV, we compared the respondents’ volume of home market sales of the foreign like product to the volume of its U.S. sales of the subject merchandise. Pursuant to section 773(a)(1)(B)(i) of the Act, because MSSA had an aggregate volume of home market sales of the foreign like product PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 that was greater than five percent of its aggregate volume of U.S. sales of the subject merchandise, we determined that the home market was viable. See Date of Sale/Market Viability section, above. See also March 21, 2008, Memorandum to The File, Subject: Determination of French Market as a Viable Market. B. Arm’s–Length Test MSSA reported that its sales of the foreign like product were made to unaffiliated customers. Therefore, the arm’s–length test is not applicable to MSSA’s sales of the foreign like product. C. Cost of Production Analysis Based on our analysis of the petitioner’s allegation stated in the petition, we found that there were reasonable grounds to believe or suspect that MSSA’s sales of sodium metal in the home market were made at prices below its COP. Accordingly, pursuant to section 773(b) of the Act, we initiated a sales–below-cost investigation to determine whether MSSA had sales that were made at prices below its COP. See November 8, 2007, supplement to the petition at page 10. See also; Initiation Notice at page 65297. 1. Calculation of Cost of Production In accordance with section 773(b)(3) of the Act, we calculated MSSA’s COP based on the sum of its costs of materials and conversion for the foreign like product, plus amounts for general and administrative expenses and interest expenses (see Test of Comparison Market Sales Prices section, below, for the treatment of home market selling expenses). The Department relied on the COP data submitted by MSSA in response to the Department’s supplemental section D questionnaire. 2. Test of Comparison Market Sales Prices On a product–specific basis, we compared the adjusted weighted– average COP to the home market sales of the foreign like product, as required under section 773(b) of the Act, in order to determine whether the sale prices were below the COP. For purposes of this comparison, we used the COP exclusive of selling and packing expenses. The prices were exclusive of any applicable movement charges, direct and indirect selling expenses, and packing expenses. 3. Results of the COP Test Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 percent of E:\FR\FM\28MYN1.SGM 28MYN1 30609 Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices a respondent’s sales of a given product were at prices less than the COP, we did not disregard any below–cost sales of that product because we determined that the below–cost sales were not made in ‘‘substantial quantities.’’ Where 20 percent or more of a respondent’s sales of a given product during the POI were at prices less than the COP, we determined that such sales were made in ‘‘substantial quantities.’’ See section 773(b)(2)(C) of the Act. Further, the sales were made within an extended period of time, in accordance with section 773(b)(2)(B) of the Act, because we examined below–cost sales occurring during the entire POI. In such cases, because we compared prices to POI–average costs, we also determined that such sales were not made at prices which would permit recovery of all costs within a reasonable period of time, in accordance with section 773(b)(2)(D) of the Act. Our preliminary findings show that we did not find that more than 20 percent of MSSA’s sales were at prices less than the COP and did not exclude any sales as a result of the COP test. Therefore, we used all of MSSA’s home market sales as the basis for determining NV. mstockstill on PROD1PC66 with NOTICES D. Calculation of Normal Value Based on Comparison Market Prices We based home market prices on packed prices to unaffiliated purchasers in France. We adjusted the starting price for insurance, inland freight, and freight revenue, where appropriate, pursuant to section 773(a)(6)(B)(ii) of the Act. When comparing U.S. sales with comparison market sales of similar, but not identical, merchandise, we also made adjustments for physical differences in the merchandise in accordance with section 773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this adjustment on the difference in the variable cost of manufacturing for the foreign like product and subject merchandise. See 19 CFR 351.411(b). E. Level of Trade/Constructed Export Price Offset In accordance with section 773(a)(1)(B)(i) of the Act, to the extent practicable, we determine NV based on sales in the comparison market at the same level of trade (LOT) as the CEP transaction. In identifying LOTs for comparison market sales (i.e., NV based on home market), we consider the starting prices before any adjustments. For CEP sales, we consider only the selling activities reflected in the price after the deduction of expenses and profit under section 772(d) of the Act. See Micron Technology, Inc. v. United VerDate Aug<31>2005 16:31 May 27, 2008 Jkt 214001 States, 243 F.3d 1301, 1314 (Fed. Cir. 2001). To determine whether NV sales are at a different LOT than EP or CEP transactions, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. If the comparison market sales are at a different LOT and the difference affects price comparability, as manifested in a pattern of consistent price differences between the sales on which NV is based and comparison market sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. For CEP sales, if the NV LOT is more remote from the factory than the CEP LOT and there is no basis for determining whether the difference in the LOTs between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP–offset provision). MSSA reported sales made through one LOT corresponding to one channel of distribution in the home market. In the U.S. market, MSSA reported one LOT corresponding to three channels of distribution. MSSA made sales through its U.S. affiliates (i.e., CEP sales). In our analysis, we determined that there is one LOT in the home market and one LOT in the U.S. market. We have found that home market sales are at a more advanced LOT than the CEP sales made through its U.S. affiliates. Accordingly, we have made CEP offsets to NV. For a detailed description of our LOT methodology and a summary of the LOT findings for these preliminary results, see our analysis contained in the Preliminary Calculation Memorandum. Currency Conversion We made currency conversions into U.S. dollars in accordance with section 773A(a) of the Act based on exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank. All–Others Rate Pursuant to section 735(c)(5)(A) of the Act, the all–others rate is equal to the weighted average of the estimated weighted–average dumping margins of all respondents investigated, excluding zero or de minimis margins. MSSA is the only respondent in this investigation and its rate is neither zero nor de minimis. Therefore, for purposes of determining the all–others rate and pursuant to section 735(c)(5)(A) of the Act, we are using the weighted–average dumping margin calculated for MSSA for the all–others rate, as referenced in PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 the Suspension of Liquidation section, below. Verification As provided in section 782(i) of the Act, we intend to verify all information upon which we will rely in making our final determination. Suspension of Liquidation In accordance with section 733(d)(2) of the Act, we are directing U.S. Customs and Border Protection (CBP) to suspend liquidation of all entries of sodium metal from France that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. We are also instructing CBP to require a cash deposit or the posting of a bond equal to the weighted–average dumping margin, as indicated in the chart below. These suspension–ofliquidation instructions will remain in effect until further notice. The weighted–average dumping margin is as follows: Manufacturer/Exporter MSSA S.A.S. ................ All Others ...................... Weighted–Average Margin (percent) 62.62 62.62 Disclosure We will disclose the calculations used in our analysis to parties in this proceeding in accordance with 19 CFR 351.224(b). ITC Notification In accordance with section 733(f) of the Act, we have notified the ITC of the Department’s preliminary affirmative determination. If the Department’s final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after our final determination whether imports of sodium metal from France are materially injuring, or threaten material injury to, the U.S. industry. Because we have postponed the deadline for our final determination to 135 days from the date of the publication of this preliminary determination, the ITC will make its final determination within 45 days of our final determination. Public Comment Interested parties are invited to comment on the preliminary determination. Interested parties may submit case briefs to the Department no later than seven days after the date of the issuance of the verification report in this proceeding. See 19 CFR 351.309(c)(1)(i). Rebuttal briefs, the E:\FR\FM\28MYN1.SGM 28MYN1 30610 Federal Register / Vol. 73, No. 103 / Wednesday, May 28, 2008 / Notices mstockstill on PROD1PC66 with NOTICES content of which is limited to the issues raised in the case briefs, must be filed within five days from the deadline date for the submission of case briefs. See 19 CFR 351.309(d)(1) and (2). A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes. Further, we request that parties submitting briefs and rebuttal briefs provide the Department with a copy of the public version of such briefs on diskette. In accordance with section 774 of the Act, the Department will hold a public hearing, if requested, to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by an interested party. If a request for a hearing is made in this investigation, the hearing will tentatively be held two days after the rebuttal brief deadline date at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230, at a time and in a room to be determined. Parties should confirm by telephone, the date, time, and location of the hearing 48 hours before the scheduled date. Interested parties who wish to request a hearing, or to participate in a hearing if one is requested, must submit a written request to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, within 30 days of the publication of this notice. Requests should contain: (1) The party’s name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. See 19 CFR 351.310(c). At the hearing, oral presentations will be limited to issues raised in the briefs. Postponement of Final Determination and Extension of Provisional Measures Pursuant to section 735(a)(2) of the Act, on May 7, 2008, MSSA, which accounts for a significant proportion of exports of sodium metal from France, requested that in the event of an affirmative preliminary determination in this investigation, the Department fully extend the final determination (i.e., postpone its final determination by 60 days). In its May 7, 2008, letter, MSSA also requested, pursuant to 733(d) of the Act, that in the event of an affirmative preliminary determination in this investigation, the Department extend the maximum duration of provisional measures from four months to six months from the date of implementation. See 735(a)(2) of the Act and 19 CFR 351.210(e)(2). In accordance VerDate Aug<31>2005 16:31 May 27, 2008 Jkt 214001 with section 733(d) of the Act and 19 CFR 351.210(b)(2)(ii), because (1) our preliminary determination is affirmative, (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise, and (3) no compelling reason for denial exists, we are granting MSSA’s request and are postponing the final determination until no later than 135 days after the publication of this notice in the Federal Register. Suspension of liquidation will be extended accordingly. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: May 21, 2008. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. [FR Doc. E8–11876 Filed 5–27–08; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XI10 Endangered Species; File No. 10037 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Issuance of permit. AGENCY: SUMMARY: Notice is hereby given that Dr. Douglas Peterson, Warnell School of Forest Resources (Fisheries Division), University of Georgia, Athens, Georgia 30602, has been issued a permit to take shortnose sturgeon (Acipenser brevirostrum) for purposes of scientific research. ADDRESSES: The permit and related documents are available for review upon written request or by appointment in the following office(s): Permits, Conservation and Education Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)713–2289; fax (301)427–2521; and Southeast Region, NMFS, 263 13th Ave South, St. Petersburg, FL 33701; phone (727)824–5312; fax (727)824– 5309. FOR FURTHER INFORMATION CONTACT: Malcolm Mohead or Kate Swails, (301)713–2289. SUPPLEMENTARY INFORMATION: On September 11, 2007, notice was published in the Federal Register (72 FR 51803) that a request for a scientific research permit to take shortnose PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 sturgeon had been submitted by the above-named individual. The requested permit has been issued under the authority of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the taking, importing, and exporting of endangered and threatened species (50 CFR parts 222–226). Dr. Peterson is authorized to conduct research on shortnose sturgeon for five years to assess the abundance, age structure, distribution, movement, and critical habitat on the Ogeechee River, Georgia, and will also investigate the adverse effects of estrogenic compounds. Researchers may capture up to 150 shortnose sturgeon annually using gill and trammel nets and also anesthetize, measure, weigh, tissue and fin-ray sample, and PIT tag these fish. A subset of up to 10 sturgeon annually (no more than 40 during the permit life) will be laparoscoped and implanted with internal radio tags; a subset of up to 5 sturgeon annually (no more than 20 during the permit life) will be laparoscoped and fitted with external radio tags; and a subset of up to 12 sturgeon will be health evaluated using laparoscopy and venipuncture annually. The unintentional mortality of up to 2 shortnose sturgeon annually is permitted. Additionally researchers may also lethally collect up to 40 shortnose sturgeon eggs/larvae annually using buffer pads in order to document spawning. Issuance of this permit, as required by the ESA, was based on a finding that such permit (1) was applied for in good faith, (2) will not operate to the disadvantage of such endangered or threatened species, and (3) is consistent with the purposes and policies set forth in section 2 of the ESA. Dated: May 21, 2008. P. Michael Payne, Chief, Permits, Conservation and Education Division, Office of Protected Resources, National Marine Fisheries Service. [FR Doc. E8–11884 Filed 5–27–08; 8:45 am] BILLING CODE 3510–22–S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648–XH97 Endangered Species; File No. 1595–02 National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. AGENCY: E:\FR\FM\28MYN1.SGM 28MYN1

Agencies

[Federal Register Volume 73, Number 103 (Wednesday, May 28, 2008)]
[Notices]
[Pages 30605-30610]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-11876]


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DEPARTMENT OF COMMERCE

International Trade Administration

(A-427-827)


Sodium Metal from France: Notice of Preliminary Determination of 
Sales at Less Than Fair Value and Postponement of Final Determination

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (the Department) preliminarily 
determines that sodium metal from France (sodium metal) is being, or is 
likely to be, sold in the United States at less than fair value (LTFV), 
as provided in section 733(b) of the Tariff Act of 1930, as amended 
(the Act). The estimated margin of sales at LTFV is listed in the 
``Suspension of Liquidation'' section of this notice. Interested 
parties are invited to comment on this preliminary determination. 
Pursuant to requests from interested parties, we are postponing for 60 
days the final determination and extending the provisional measures 
from a four-month period to not more than six months. Accordingly, we 
will make our final determination not later than 135 days after 
publication of the preliminary determination.

EFFECTIVE DATE: May 28, 2008.

FOR FURTHER INFORMATION CONTACT: Dennis McClure or Joy Zhang, AD/CVD 
Operations, Office 3, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-5973 
or (202) 482-1168, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On October 23, 2007, E.I. DuPont de Nemours & Co. Inc. (the 
petitioner) filed a petition on sodium metal from France. In a 
supplement to the petition, the petitioner provided information 
demonstrating reasonable grounds to believe or suspect that sales of 
sodium metal in the home market were made at prices below the fully 
absorbed cost of production (COP), within the meaning of section 773(b) 
of the Act, and requested that the Department conduct a sales-below-
cost investigation. See November 8, 2007, supplement to the petition at 
page 10. We found that the petitioner provided a reasonable basis to 
believe or suspect that the French producer was selling sodium metal in 
France at prices below the COP. See section 773(b)(2)(A)(i) of the Act.
    On November 13, 2007, the Department initiated the antidumping duty 
investigation of sodium metal from France. See Sodium Metal from 
France: Notice of Initiation of Antidumping Duty Investigation, 72 FR 
65295 (November 20, 2007) (Initiation Notice). The Department also 
initiated a country-wide sales-below-cost investigation and requested 
that respondent, MSSA S.A.S, respond to section D of the Department's 
antidumping questionnaire. See Initiation Notice; see also the 
Department's questionnaire issued to MSSA S.A.S. on January 4, 2008.
    The Department requested comments on model-matching criteria in its 
letter to interested parties, dated November 16, 2007. On December 6, 
2007, the petitioner submitted comments on the model-matching criteria. 
On December 13, 2007, MSSA S.A.S., MSSA Company, and Columbia Sales 
International (collectively, MSSA) submitted comments on the proposed 
model-matching criteria. On December 14 and 17, 2007, the petitioner 
submitted additional comments on the proposed model-matching criteria. 
On December 19, 2007, MSSA responded to the petitioner's comments 
concerning model-matching criteria. For an explanation of the model-
matching criteria used, see Model Match section, below.
    On December 6, 2007, the United States International Trade 
Commission (ITC) preliminarily determined that there is a reasonable 
indication that the industry in the United States is materially injured 
by reason of imports of sodium metal from France that are alleged to be 
sold in the United States at LTFV. See Sodium Metal From France, 
Investigation No. 731-TA-1135 (Preliminary), 73 FR 15777 (March 25, 
2008). The ITC notified the Department of these findings.
    On December 14, 2007, MSSA wrote to inform the Department that its 
home market may not be viable because most of its sales in most markets 
are governed by long-term contracts. In addition, MSSA also explained 
that the Department may need to expand the period of investigation 
(POI) to capture sales from one of its larger contracts in the United 
States. On December 19, 2007, the petitioner submitted a letter arguing 
against extending the POI. On December 20, 2007, MSSA submitted a 
response to the petitioner's comments on extending the POI. See Date of 
Sale/Market Viability section, below.
    On February 8, 2008, the Department received the Section A 
questionnaire response from MSSA. On February 20, 2008, the Department 
received a letter from MSSA explaining that it had made a small 
percentage of sales to affiliated parties in the United States for 
further manufacturing and downstream sales and asked that it be excused 
from reporting these sales. On February 25, 2008, the Department 
received the Sections B and C response from MSSA.\1\ On March 6, 2008, 
MSSA responded to the Department's Section A supplemental 
questionnaire.
---------------------------------------------------------------------------

    \1\ For Section B, MSSA originally reported third-country sales 
to Germany using invoice date as the date of sale.
---------------------------------------------------------------------------

    On March 7, 2008, the petitioner filed a sales-below-cost 
allegation based on sales to Germany. On March 18, 2008, the Department 
postponed the

[[Page 30606]]

preliminary determination of the instant antidumping duty 
investigation. See Sodium Metal from France: Postponement of 
Preliminary Determination of Antidumping Duty Investigation, 73 FR 
14440 (March 18, 2008).
    After reviewing the Sections B and C response from MSSA, the 
Department issued a supplemental questionnaire to MSSA on March 10, 
2008. On March 21, 2008, the Department notified MSSA that we found 
that the home market was viable and were requiring it to respond to 
Section B and Section D of the questionnaire with regard to the French 
market. See Date of Sale/Market Viability section, below.
    On April 4, 2008, we received MSSA's Section B response with regard 
to the French market. On April 11, 2008, we received MSSA's 
supplemental Sections B and C response. On April 16, 2008, we issued an 
additional supplemental Sections B and C questionnaire to MSSA. On 
April 14 and 21, 2008, we received MSSA's Section D response. On April 
21, 2008, the petitioner submitted a targeted dumping allegation and 
comments on MSSA's Section A and C responses. On April 22, 2008, the 
Department issued a supplemental questionnaire with regard to Sections 
A and C. On April 28, 2008, MSSA responded to the Department's April 
16, 2008, supplemental Sections B and C questionnaire. On April 30, 
2008, MSSA responded to the Department's April 22, 2008, supplemental 
questionnaire with regard to Sections A and C. On April 25, 2008, the 
Department issued a Section D supplemental questionnaire. MSSA 
responded to the Section D supplemental questionnaire on May 2 and 7, 
2008. On April 30, 2008, the Department requested that the petitioner 
respond to additional questions with regard to its targeted dumping 
allegation. The petitioner responded on May 6, 2008.
    On May 7, 2008, MSSA requested that the Department postpone the 
final determination and extend the provisional measures. See 
Postponement of Final Determination and Extension of Provisional 
Measures section, below.

Targeted Dumping Allegation

    The petitioner submitted an allegation of targeted dumping on April 
21, 2008. See section 777A(d)(1)(B) of the Act. In its allegation, the 
petitioner asserts that there are patterns of constructed export prices 
(CEPs) for comparable merchandise that differ significantly among 
purchasers. We note that all of MSSA's U.S. sales are CEP sales. The 
Department requested additional information and clarification from the 
petitioner with respect to its targeted dumping allegation. See Letter 
from James Terpstra to the petitioner, dated May 1, 2008. On May 6, 
2008, the petitioner provided its response. On May 16, 2008, MSSA 
argued that the petitioner miscalculated the gross unit price of the 
alleged largest targeted customer.

New Targeted Dumping Test

    The statute allows the Department to employ the average-to-
transaction methodology if: 1) there is a pattern of export prices that 
differ significantly among purchasers, regions, or periods of time, and 
2) the Department explains why such differences cannot be taken into 
account using the average-to-average or transaction-to-transaction 
methodology.\2\
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    \2\ Section 777A(d)(1)(B) of the Act.
---------------------------------------------------------------------------

    In the recent post-preliminary determination memorandum in the 
antidumping investigation of new pneumatic off-the-road tires for the 
People's Republic of China, the Department applied a new targeted 
dumping standard and methodology for analyzing targeted dumping 
allegations.\3\
---------------------------------------------------------------------------

    \3\ See Memorandum to David M. Spooner, ``Post-Preliminary 
Determination of Targeted Dumping'' (May 19, 2008), (OTR Tires 
Targeted Dumping Memorandum). This new test was first applied in the 
investigations of certain steel nails from the United Arab Emirates 
and the People's Republic of China.
---------------------------------------------------------------------------

    We conducted a customer-targeted dumping analysis for MSSA using 
the methodology described in the OTR Tires Targeted Dumping Memorandum. 
This is also the test put forward in the Department's Proposed 
Methodology for Identifying and Analyzing Targeted Dumping in 
Antidumping Investigations; Request for Comment, 73 FR 26371 (May 9, 
2008).
    The methodology we employed involves a two-stage test: the first 
stage addresses the pattern requirement, and the second stage addresses 
the significant difference requirement. All price comparisons have been 
done on the basis of identical merchandise (i.e., by control number or 
CONNUM). The test procedures are the same for customer, regional, and 
time period targeted dumping allegations,\4\ even though the example 
given in the general description below applies to customer targeting.
---------------------------------------------------------------------------

    \4\ The petitioner made no targeted dumping allegations based on 
region or time period in this investigation.
---------------------------------------------------------------------------

    In the first stage of the test, referred to as the ``standard 
deviation test,'' the Department determined, on an exporter-specific 
basis, the share of the alleged targeted customer's purchases of 
subject merchandise (by sales value) that are at prices more than one 
standard deviation below the weighted-average price to all customers of 
that exporter, targeted and non-targeted. We calculated the standard 
deviation on a product-specific basis (i.e., CONNUM by CONNUM) using 
the POI-wide average prices (weighted by sales value) for each alleged 
targeted customer and each distinct non-targeted customer. If that 
share did not exceed 33 percent of the total value of the exporter's 
sales of subject merchandise to the alleged targeted customer, then the 
pattern requirement is not met and the Department did not conduct the 
second stage of the test.
    However, if that share exceeded 33 percent of the total value of 
the exporter's sales of subject merchandise to the alleged targeted 
customer, then the pattern requirement is met and the Department 
proceeded to the second stage of the test. Specifically, the Department 
examined in the second stage all of the sales of identical merchandise 
(i.e., by CONNUM) by that exporter to the alleged targeted customer. 
From those sales, we determined the total value of sales for which the 
difference between (i) the sales-weighted-average price to the alleged 
targeted customer and (ii) the next higher sales-weighted-average price 
to a non-targeted customer exceeded the average price gap (weighted by 
sales value) for the non-targeted group.\5\ Each of the price gaps in 
the non-targeted group was weighted by the combined sales value 
associated with the pair of prices to non-targeted customers that make 
up the price gap. In doing this analysis, the alleged targeted 
customers were not included in the non-targeted group; each alleged 
targeted customer's average price was compared to only the average 
prices to non-targeted customers. If the share of the sales that met 
this test exceeded five percent of the total sales value of subject 
merchandise to the alleged targeted customer,\6\ the significant 
difference

[[Page 30607]]

requirement was met and the Department determined that customer 
targeting occurred.
---------------------------------------------------------------------------

    \5\ The next higher price is the sales-weighted-average price to 
the non-targeted group that is above the sales-weighted-average 
price to the alleged targeted group. For example, if the sales-
weighted-average price to the alleged targeted group is $7.95 and 
the sales-weighted-average prices to the non-targeted group are 
$8.30, $8.25, and $7.50, we would calculate the difference between 
$7.95 and $8.25 because this is the next higher price in the non-
targeted group above $7.95 (the average price to the targeted 
group).
    \6\ For example: If non-targeted A's weighted-average price is 
$1.00 with a total sales value of $100 and non-targeted B's 
weighted-average price is $0.95 with a total sales value of $120, 
then the difference of $0.05 ($1.00-$0.95) would be weighted by $220 
($100 + $120).
---------------------------------------------------------------------------

    Once the Department determined that the customer pattern-of-price 
differences were significant, we applied the transaction-to-average 
methodology to any targeted sales and applied the average-to-average 
methodology to the remaining non-targeted sales.\7\ When calculating 
the weighted-average margin, we combined the margin calculated for the 
targeted sales with the margin calculated for the non-targeted sales, 
without offsetting any margins found among the targeted sales.
---------------------------------------------------------------------------

    \7\ Consistent with 19 CFR 351.414(f)(2), we have limited our 
application of the average-to-transaction methodology to the 
targeted sales under 19 CFR 351.414(f)(1)(i). As specified in the 
preamble to the regulations, the Department will apply the average-
to-transaction methodology solely to address the practice of 
targeting. See Antidumping Duties; Countervailing Duties; 62 FR 
27296, 27375 (May 19, 1997). In the preamble, the Department 
indicated that where the targeting is so widespread that it is 
administratively impractical to segregate targeted sales prices from 
the normal pricing behavior of the company, it may be necessary to 
apply the average-to-transaction methodology to all sales of a 
particular respondent. In this case, however, we are able to 
segregate the targeted sales prices, by customer, where appropriate, 
from the normal pricing behavior of the company and, therefore, have 
limited our application of the average-to-transaction methodology to 
the sales to the targeted group.
---------------------------------------------------------------------------

    We based all of our targeted dumping calculations on the U.S. net 
price (``NETPRIU'') determined in our margin program in our Preliminary 
Calculation Memorandum. See ``Calculation Memorandum for the 
Preliminary Determination - MSSA,'' dated May 21, 2008, (Preliminary 
Calculation Memorandum) on file in the Central Records Unit, Room 1117 
of the main Department building.

Results of the Application of the New Targeted Dumping Test

    For purposes of this preliminary determination on targeted dumping, 
we have applied the above-described test to the U.S. sales data 
reported by MSSA. Our observations and results are discussed in more 
detail in a separate memorandum placed on the record of this 
investigation. See Preliminary Calculation Memorandum.
    We preliminarily determine that there is no pattern of constructed 
export prices for comparable merchandise that differs significantly 
among customers for MSSA. Therefore, we applied the average-to-average 
methodology to all U.S. sales by MSSA.

Comments by Interested Parties

    Parties may comment on the Department's overall preliminary 
determination application of the new targeted dumping test in this 
proceeding. Consistent with 19 CFR 351.309(c)(2), all comments should 
be filed in the context of the case and rebuttal briefs. See the 
``Public Comment'' section below for details regarding the briefing 
schedule for this investigation.

Period of Investigation

    The POI is October 1, 2006 to September 30, 2007. This period 
corresponds to the four most recent fiscal quarters prior to the month 
of the filing of the petition.

Scope of the Investigation

    The merchandise covered by this investigation includes sodium metal 
(Na), in any form and at any purity level. Examples of names commonly 
used to reference sodium metal are sodium metal, sodium, metallic 
sodium, and natrium. The merchandise subject to this investigation is 
classified in the Harmonized Tariff Schedule of the United States 
(HTSUS) subheading 2805.11.0000. The American Chemical Society Chemical 
Abstract Service (CAS) has assigned the name ``Sodium'' to sodium 
metal. The CAS registry number is 7440-23-5. For purposes of the 
investigation, the narrative description is dispositive, not the tariff 
heading, CAS registry number or CAS name, which are provided for 
convenience and customs purposes.

Model Match

    We have taken into account the comments filed by MSSA and the 
petitioner concerning model-matching criteria. We have used the 
following criteria for model matching, since both parties were in 
substantial agreement with the product characteristics. In accordance 
with section 771(16) of the Act, all products produced by the 
respondent covered by the description in the Scope of Investigation 
section, above, and sold in France during the POI are considered to be 
foreign like products for purposes of determining appropriate product 
comparisons to U.S. sales. We have relied on five criteria to match 
U.S. sales of subject merchandise to comparison market sales of the 
foreign like product: 1) calcium impurity, 2) potassium impurity, 3) 
chloride/bromide impurity, 4) oxygen impurity, and 5) form. Where there 
were no sales of identical merchandise in the home market made in the 
ordinary course of trade to compare to U.S. sales, we compared U.S. 
sales to the next most similar foreign like product on the basis of the 
characteristics listed above. On January 4, 2008, the Department issued 
the questionnaire containing the criteria identified above. See the 
Department's antidumping questionnaire issued to MSSA on January 4, 
2008, at pages B-8 through B-10 and C-7 through C-9.

Date of Sale/Market Viability

    Section 351.401(i) of the Department's regulations states that the 
Department normally will use the date of invoice, as recorded in the 
producer's or exporter's records kept in the ordinary course of 
business, as the date of sale. Therefore, where there were no long-term 
contracts which were signed and effective, during the POI, we 
determined that the invoice date established the material terms of 
sale. The regulations further provide that the Department may use a 
date other than the date of the invoice if the Secretary is satisfied 
that a different date better reflects the date on which the material 
terms of sale are established. The Department has a long-standing 
practice of finding that, where shipment date precedes invoice date, 
shipment date better reflects the date on which the material terms of 
sale are established. See 19 CFR 351.401(i); see also Notice of Final 
Determination of Sales at Less Than Fair Value and Negative Final 
Determination of Critical Circumstances: Certain Frozen and Canned 
Warmwater Shrimp from Thailand, 69 FR 76918 (December 23, 2004), and 
accompanying Issues and Decision Memorandum at Comment 10; and Notice 
of Final Determination of Sales at Less Than Fair Value: Structural 
Steel Beams from Germany, 67 FR 35497 (May 20, 2002), and accompanying 
Issues and Decision Memorandum at Comment 2. Therefore, we used the 
earlier of shipment date or invoice date as the date of sale in 
accordance with our practice.
    In MSSA's original response to Section B of the questionnaire, MSSA 
reported its response based upon the invoice date as the date of sale, 
which indicated that France was not a viable home market. Therefore, 
MSSA reported sales to Germany as its viable market for comparison to 
its U.S. sales. In our review of MSSA's sales contracts, we determined 
that some contracts did establish the material terms of sale because no 
changes to the material terms were made. Therefore, where those 
contracts were signed and the effective date was within the POI, we 
used the effective date as the date of sale for those sales made 
pursuant to those contracts. See Preliminary Calculation Memorandum.

Fair Value Comparisons

    To determine whether sales of sodium metal from France were made in 
the

[[Page 30608]]

United States at less than normal value (NV), we compared the CEP to 
the NV, as described in the Constructed Export Price and Normal Value 
sections below. In accordance with section 777A(d)(1) of the Act, we 
calculated the weighted-average prices for NV and compared these to the 
weighted-average of CEP.

Constructed Export Price

A. Affiliation Through Agency

    In accordance with section 771(33)(G) of the Act, we are treating 
Columbia Sales International as an affiliate of MSSA. During the POI, 
MSSA made sales to unaffiliated customers in the United States through 
three channels of distribution. The first two channels of distribution 
are sales by MSSA Co. with the assistance of Columbia Sales 
International, its exclusive U.S. sales agent. The third channel 
includes sales purchased by Columbia Sales International and resold to 
the unaffiliated U.S. customer. In MSSA's March 6, 2008, supplemental 
response, MSSA responded to additional questions concerning its 
relationship with Columbia Sales International. In Exhibit A-Supp-1, 
MSSA provided its ``Exclusive Agency Agreement'' with Columbia Sales 
International. The ``Exclusive Agency Agreement'' and other information 
on the record indicate that Columbia Sales International and MSSA are 
affiliated through a principal/agent relationship. See, e.g., Stainless 
Steel Sheet and Strip in Coils from Taiwan: Final Results and Partial 
Rescission of Antidumping Duty Administrative Review, 67 FR 6682 
(February 13, 2002), and accompanying Issues and Decision Memorandum at 
Comment 23, upheld in Chia Far Industrial Factory Co. v. United States, 
343 F. Supp. 2d 1344, 1356 (CIT 2004) (``when there exists a principal 
who has the potential to control pricing and/or the terms of sale 
through the end-customer, Commerce will find agency and thus 
affiliation''). Furthermore, as explained in the Notice of Final 
Determination of Sales at Less than Fair Value: Engineered Processed 
Gas Turbo-Compressor Systems, Whether Assembled or Unassembled, and 
Whether Complete or Incomplete, from Japan, 62 FR 24392, 24402-24403 
(May 5, 1997), the Department may examine a range of criteria to 
determine if an agency relationship exists. For example, the Department 
may look at (1) the foreign producer's role in negotiating price and 
other terms of sale; (2) the extent of the foreign producer's 
interaction with the U.S. customer; (3) whether the agent/reseller 
maintains inventory; (4) whether the agent/reseller takes title to the 
merchandise and bears the risk of loss; (5) whether the agent/reseller 
further processes or otherwise adds value to the merchandise; (6) the 
means of marketing a product by the producer to the U.S. customer in 
the pre-sale period; and (7) whether the identity of the producer on 
sales documentation inferred such an agency relationship during the 
sales transactions. Due to the proprietary nature of MSSA's response, 
we have applied these factors to the facts of this case and included 
further analysis in our Preliminary Calculation Memorandum.

B. Calculation of U.S. Price

    For the price to the United States, we used CEP in accordance with 
section 772(b) of the Act. We calculated CEP for those sales where a 
person in the United States, affiliated with the foreign exporter or 
acting for the account of the exporter, made the sale to the first 
unaffiliated purchaser in the United States of the subject merchandise. 
We based CEP on the packed prices charged to the first unaffiliated 
customer in the United States and the applicable terms of sale.
    In accordance with section 772(c)(2) of the Act, we made 
deductions, where appropriate, for movement expenses including U.S. 
warehouse expense, inland freight, insurance, brokerage & handling, 
demurrage, international freight, and U.S. customs duties.
    For CEP, in accordance with section 772(d)(1) of the Act, when 
appropriate, we deducted from the starting price those selling expenses 
that were incurred in selling the subject merchandise in the United 
States, including direct selling expenses (cost of credit and 
warranty). These expenses include certain indirect selling expenses 
incurred by affiliated U.S. distributors. See Preliminary Calculation 
Memorandum. We also deducted from CEP an amount for profit in 
accordance with sections 772(d)(3) and (f) of the Act.

Normal Value

A. Home Market Viability and Comparison Market Selection

    To determine whether there was a sufficient volume of sales in the 
home market to serve as a viable basis for calculating NV, we compared 
the respondents' volume of home market sales of the foreign like 
product to the volume of its U.S. sales of the subject merchandise. 
Pursuant to section 773(a)(1)(B)(i) of the Act, because MSSA had an 
aggregate volume of home market sales of the foreign like product that 
was greater than five percent of its aggregate volume of U.S. sales of 
the subject merchandise, we determined that the home market was viable. 
See Date of Sale/Market Viability section, above. See also March 21, 
2008, Memorandum to The File, Subject: Determination of French Market 
as a Viable Market.

B. Arm's-Length Test

    MSSA reported that its sales of the foreign like product were made 
to unaffiliated customers. Therefore, the arm's-length test is not 
applicable to MSSA's sales of the foreign like product.

C. Cost of Production Analysis

    Based on our analysis of the petitioner's allegation stated in the 
petition, we found that there were reasonable grounds to believe or 
suspect that MSSA's sales of sodium metal in the home market were made 
at prices below its COP. Accordingly, pursuant to section 773(b) of the 
Act, we initiated a sales-below-cost investigation to determine whether 
MSSA had sales that were made at prices below its COP. See November 8, 
2007, supplement to the petition at page 10. See also; Initiation 
Notice at page 65297.

1. Calculation of Cost of Production

    In accordance with section 773(b)(3) of the Act, we calculated 
MSSA's COP based on the sum of its costs of materials and conversion 
for the foreign like product, plus amounts for general and 
administrative expenses and interest expenses (see Test of Comparison 
Market Sales Prices section, below, for the treatment of home market 
selling expenses).
    The Department relied on the COP data submitted by MSSA in response 
to the Department's supplemental section D questionnaire.

2. Test of Comparison Market Sales Prices

    On a product-specific basis, we compared the adjusted weighted-
average COP to the home market sales of the foreign like product, as 
required under section 773(b) of the Act, in order to determine whether 
the sale prices were below the COP. For purposes of this comparison, we 
used the COP exclusive of selling and packing expenses. The prices were 
exclusive of any applicable movement charges, direct and indirect 
selling expenses, and packing expenses.

3. Results of the COP Test

    Pursuant to section 773(b)(2)(C)(i) of the Act, where less than 20 
percent of

[[Page 30609]]

a respondent's sales of a given product were at prices less than the 
COP, we did not disregard any below-cost sales of that product because 
we determined that the below-cost sales were not made in ``substantial 
quantities.'' Where 20 percent or more of a respondent's sales of a 
given product during the POI were at prices less than the COP, we 
determined that such sales were made in ``substantial quantities.'' See 
section 773(b)(2)(C) of the Act. Further, the sales were made within an 
extended period of time, in accordance with section 773(b)(2)(B) of the 
Act, because we examined below-cost sales occurring during the entire 
POI. In such cases, because we compared prices to POI-average costs, we 
also determined that such sales were not made at prices which would 
permit recovery of all costs within a reasonable period of time, in 
accordance with section 773(b)(2)(D) of the Act.
    Our preliminary findings show that we did not find that more than 
20 percent of MSSA's sales were at prices less than the COP and did not 
exclude any sales as a result of the COP test. Therefore, we used all 
of MSSA's home market sales as the basis for determining NV.

D. Calculation of Normal Value Based on Comparison Market Prices

    We based home market prices on packed prices to unaffiliated 
purchasers in France. We adjusted the starting price for insurance, 
inland freight, and freight revenue, where appropriate, pursuant to 
section 773(a)(6)(B)(ii) of the Act.
    When comparing U.S. sales with comparison market sales of similar, 
but not identical, merchandise, we also made adjustments for physical 
differences in the merchandise in accordance with section 
773(a)(6)(C)(ii) of the Act and 19 CFR 351.411. We based this 
adjustment on the difference in the variable cost of manufacturing for 
the foreign like product and subject merchandise. See 19 CFR 
351.411(b).

E. Level of Trade/Constructed Export Price Offset

    In accordance with section 773(a)(1)(B)(i) of the Act, to the 
extent practicable, we determine NV based on sales in the comparison 
market at the same level of trade (LOT) as the CEP transaction. In 
identifying LOTs for comparison market sales (i.e., NV based on home 
market), we consider the starting prices before any adjustments. For 
CEP sales, we consider only the selling activities reflected in the 
price after the deduction of expenses and profit under section 772(d) 
of the Act. See Micron Technology, Inc. v. United States, 243 F.3d 
1301, 1314 (Fed. Cir. 2001).
    To determine whether NV sales are at a different LOT than EP or CEP 
transactions, we examine stages in the marketing process and selling 
functions along the chain of distribution between the producer and the 
unaffiliated customer. If the comparison market sales are at a 
different LOT and the difference affects price comparability, as 
manifested in a pattern of consistent price differences between the 
sales on which NV is based and comparison market sales at the LOT of 
the export transaction, we make an LOT adjustment under section 
773(a)(7)(A) of the Act. For CEP sales, if the NV LOT is more remote 
from the factory than the CEP LOT and there is no basis for determining 
whether the difference in the LOTs between NV and CEP affects price 
comparability, we adjust NV under section 773(a)(7)(B) of the Act (the 
CEP-offset provision).
    MSSA reported sales made through one LOT corresponding to one 
channel of distribution in the home market. In the U.S. market, MSSA 
reported one LOT corresponding to three channels of distribution. MSSA 
made sales through its U.S. affiliates (i.e., CEP sales). In our 
analysis, we determined that there is one LOT in the home market and 
one LOT in the U.S. market. We have found that home market sales are at 
a more advanced LOT than the CEP sales made through its U.S. 
affiliates. Accordingly, we have made CEP offsets to NV.
    For a detailed description of our LOT methodology and a summary of 
the LOT findings for these preliminary results, see our analysis 
contained in the Preliminary Calculation Memorandum.

Currency Conversion

    We made currency conversions into U.S. dollars in accordance with 
section 773A(a) of the Act based on exchange rates in effect on the 
dates of the U.S. sales, as certified by the Federal Reserve Bank.

All-Others Rate

    Pursuant to section 735(c)(5)(A) of the Act, the all-others rate is 
equal to the weighted average of the estimated weighted-average dumping 
margins of all respondents investigated, excluding zero or de minimis 
margins. MSSA is the only respondent in this investigation and its rate 
is neither zero nor de minimis. Therefore, for purposes of determining 
the all-others rate and pursuant to section 735(c)(5)(A) of the Act, we 
are using the weighted-average dumping margin calculated for MSSA for 
the all-others rate, as referenced in the Suspension of Liquidation 
section, below.

Verification

    As provided in section 782(i) of the Act, we intend to verify all 
information upon which we will rely in making our final determination.

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
U.S. Customs and Border Protection (CBP) to suspend liquidation of all 
entries of sodium metal from France that are entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of this 
notice in the Federal Register. We are also instructing CBP to require 
a cash deposit or the posting of a bond equal to the weighted-average 
dumping margin, as indicated in the chart below. These suspension-of-
liquidation instructions will remain in effect until further notice.
    The weighted-average dumping margin is as follows:

------------------------------------------------------------------------
                                                       Weighted-Average
                Manufacturer/Exporter                  Margin (percent)
------------------------------------------------------------------------
MSSA S.A.S..........................................               62.62
All Others..........................................               62.62
------------------------------------------------------------------------

Disclosure

    We will disclose the calculations used in our analysis to parties 
in this proceeding in accordance with 19 CFR 351.224(b).

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of the Department's preliminary affirmative determination. If the 
Department's final determination is affirmative, the ITC will determine 
before the later of 120 days after the date of this preliminary 
determination or 45 days after our final determination whether imports 
of sodium metal from France are materially injuring, or threaten 
material injury to, the U.S. industry. Because we have postponed the 
deadline for our final determination to 135 days from the date of the 
publication of this preliminary determination, the ITC will make its 
final determination within 45 days of our final determination.

Public Comment

    Interested parties are invited to comment on the preliminary 
determination. Interested parties may submit case briefs to the 
Department no later than seven days after the date of the issuance of 
the verification report in this proceeding. See 19 CFR 
351.309(c)(1)(i). Rebuttal briefs, the

[[Page 30610]]

content of which is limited to the issues raised in the case briefs, 
must be filed within five days from the deadline date for the 
submission of case briefs. See 19 CFR 351.309(d)(1) and (2). A list of 
authorities used, a table of contents, and an executive summary of 
issues should accompany any briefs submitted to the Department. 
Executive summaries should be limited to five pages total, including 
footnotes. Further, we request that parties submitting briefs and 
rebuttal briefs provide the Department with a copy of the public 
version of such briefs on diskette. In accordance with section 774 of 
the Act, the Department will hold a public hearing, if requested, to 
afford interested parties an opportunity to comment on arguments raised 
in case or rebuttal briefs, provided that such a hearing is requested 
by an interested party. If a request for a hearing is made in this 
investigation, the hearing will tentatively be held two days after the 
rebuttal brief deadline date at the U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington, DC 20230, at a time and 
in a room to be determined. Parties should confirm by telephone, the 
date, time, and location of the hearing 48 hours before the scheduled 
date.
    Interested parties who wish to request a hearing, or to participate 
in a hearing if one is requested, must submit a written request to the 
Assistant Secretary for Import Administration, U.S. Department of 
Commerce, Room 1870, within 30 days of the publication of this notice. 
Requests should contain: (1) The party's name, address, and telephone 
number; (2) the number of participants; and (3) a list of the issues to 
be discussed. See 19 CFR 351.310(c). At the hearing, oral presentations 
will be limited to issues raised in the briefs.

Postponement of Final Determination and Extension of Provisional 
Measures

    Pursuant to section 735(a)(2) of the Act, on May 7, 2008, MSSA, 
which accounts for a significant proportion of exports of sodium metal 
from France, requested that in the event of an affirmative preliminary 
determination in this investigation, the Department fully extend the 
final determination (i.e., postpone its final determination by 60 
days). In its May 7, 2008, letter, MSSA also requested, pursuant to 
733(d) of the Act, that in the event of an affirmative preliminary 
determination in this investigation, the Department extend the maximum 
duration of provisional measures from four months to six months from 
the date of implementation. See 735(a)(2) of the Act and 19 CFR 
351.210(e)(2). In accordance with section 733(d) of the Act and 19 CFR 
351.210(b)(2)(ii), because (1) our preliminary determination is 
affirmative, (2) the requesting exporter accounts for a significant 
proportion of exports of the subject merchandise, and (3) no compelling 
reason for denial exists, we are granting MSSA's request and are 
postponing the final determination until no later than 135 days after 
the publication of this notice in the Federal Register. Suspension of 
liquidation will be extended accordingly.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: May 21, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E8-11876 Filed 5-27-08; 8:45 am]
BILLING CODE 3510-DS-S