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