Sodium Nitrite From the People's Republic of China: Final Affirmative Countervailing Duty Determination, 38981-38984 [E8-15479]
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Federal Register / Vol. 73, No. 131 / Tuesday, July 8, 2008 / Notices
Dated: July 1, 2008.
Faye Robinson,
Director, Statutory Import Programs Staff,
Import Administration.
[FR Doc. E8–15450 Filed 7–7–08; 8:45 am]
BILLING CODE 3510–DS–S
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
DEPARTMENT OF COMMERCE
International Trade Administration
International Trade Administration
University of Colorado, et al., Notice of
Consolidated Decision on Applications
for Duty-Free Entry of Scientific
Instruments
ebenthall on PRODPC60 with NOTICES
Dated: June 30, 2008.
Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. E8–15465 Filed 7–7–08; 8:45 am]
C–570–926
This is a decision pursuant to Section
6(c) of the Educational, Scientific, and
Cultural Materials Importation Act of
1966 (Pub. L. 89–651, as amended by
Pub. L.106–36; 80 Stat. 897; 15 CFR part
301). Related records can be viewed
between 8:30 A.M. and 5:00 P.M. in
Room 2104, U.S. Department of
Commerce, 14th and Constitution Ave,
NW, Washington, D.C.
Comments: None received. Decision:
Approved. We know of no instruments
of equivalent scientific value to the
foreign instruments described below, for
such purposes as each is intended to be
used, that was being manufactured in
the United States at the time of its order.
Docket Number: 08–016. Applicant:
University of Colorado, Boulder, CO
80309. Instrument: Three–Channel
Digital Radio Vector Field Sensor
(RVFS). Manufacturer: Swedish Institute
of Space Physics, Sweden. Intended
Use: See notice at 73 FR 30377, May 27,
2008. Reasons: The instrument has a
capability to work with dipole antennas
of two different lengths (1 m and 3 m)
and a capability to oversample the
output I&Q data. These specifications
enable the instrument to operate in both
mobile–mount and stationary
conditions which is essential to the
intended use.
Docket Number: 08–017. Applicant: City
College of the City University of New
York, New York, NY 10031. Instrument:
Ultrabroadband Ti:Sapphire Laser
Model Rainbow–DFG. Manufacturer:
Femtolasers, Inc., Austria. Intended Use:
See notice at 73 FR 30377, May 27,
2008. Reasons: The instrument can
generate optical pulses of less than 7
femtoseconds which is fundamental to
the intended use. The amplifier system
will be coupled with a 6 femtosecond
laser and streak camera system to
provide high spatial, high temporal and
high spectral resolution for
characterization, tunneling and carrier/
phonon dynamics studies for nanoscale
semiconductor quantum structures and
devices.
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Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) has reached a final
determination that countervailable
subsidies are being provided to
producers/exporters of sodium nitrite
from the People’s Republic of China
(PRC). On April 11, 2008, we issued the
Preliminary Determination, see Sodium
Nitrite From the People’s Republic of
China: Preliminary Affirmative
Countervailing Duty Determination, 73
FR 19816 (April 11, 2008) (Preliminary
Determination). Because neither the
Government of the People’s Republic of
China (GOC) nor the two mandatory
company respondents participated in
this investigation, the Department relied
on facts available and applied adverse
inferences in reaching the Preliminary
Determination. The Department
assigned a countervailable subsidy rate
to each program under investigation
using rates calculated in Coated Free
Sheet Paper from the People’s Republic
of China: Final Affirmative
Countervailing Duty Determination, 72
FR 60645 (October 25, 2007) and
accompanying Issues and Decision
Memorandum (CFS from the PRC). We
invited interested parties to comment on
the Preliminary Determination. No
interested party submitted comments
regarding the Preliminary
Determination.
Since the publication of the
Preliminary Determination, the
Department has reached affirmative
final countervailing duty determinations
in several investigations of products
from the PRC. We have used the rates
calculated in these intervening final
determinations to revise the
countervailable subsidy rates for certain
programs. For information on the
countervailable subsidy rates, see the
‘‘Final Determination’’ section of this
notice.
AGENCY:
EFFECTIVE DATE:
Frm 00014
FOR FURTHER INFORMATION CONTACT:
Gene Calvert or Paul Matino, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, Room 7866, 14th Street and
Constitution Avenue, NW, Washington,
DC 20230; telephone: (202) 482–3586 or
(202) 482–4146, respectively.
SUPPLEMENTARY INFORMATION:
Case History
Sodium Nitrite From the People’s
Republic of China: Final Affirmative
Countervailing Duty Determination
PO 00000
38981
July 8, 2008.
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The following events have occurred
since the publication of the Preliminary
Determination in the Federal Register
on April 11, 2008. On April 14, 2008,
petitioner (General Chemical LLC)
submitted a letter, in accordance with
section 705(a)(1) of the Tariff Act of
1930, as amended (the Act), requesting
alignment of the final countervailing
duty determination with the final
determination in the companion
antidumping duty investigation of
sodium nitrite from the PRC. On April
28, 2008, the Department aligned the
final countervailing duty determination
with the final determination in the
companion antidumping duty
investigation of sodium nitrite from the
PRC. See Sodium Nitrite from the
People’s Republic of China: Alignment
of Final Countervailing Duty
Determination with Final Antidumping
Duty Determination, 73 FR 22920 (April
28, 2008).
Period of Investigation
The period of investigation (POI) for
which we are measuring subsidies is
calendar year 2006. See 19 CFR
351.204(b)(2).
Scope of the Investigation
The merchandise covered by this
investigation is sodium nitrite in any
form, at any purity level. In addition,
the sodium nitrite covered by this
investigation may or may not contain an
anti–caking agent. Examples of names
commonly used to reference sodium
nitrite are nitrous acid, sodium salt,
anti–rust, diazotizing salts, erinitrit, and
filmerine. The chemical composition of
sodium nitrite is NaNO2 and it is
generally classified under subheading
2834.10.1000 of the Harmonized Tariff
Schedule of the United States (HTSUS).
The American Chemical Society
Chemical Abstract Service (CAS) has
assigned the name ‘‘sodium nitrite’’ to
sodium nitrite. The CAS registry
number is 7632–00–0. For purposes of
the scope of this investigation, the
narrative description is dispositive, not
the tariff heading, CAS registry number
or CAS name, which are provided for
convenience and customs purposes.
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its ability; and (5) the information can
be used without undue difficulties.
Because the PRC is a ‘‘Subsidies
Section 776(b) of the Act provides
Agreement Country’’ within the
that the Department may use an
meaning of section 701(b) of the Act, the
inference adverse to the interests of a
International Trade Commission (ITC) is
party that has failed to cooperate by not
required to determine pursuant to
acting to the best of its ability to comply
section 701(a)(2) of the Act whether
with the Department’s requests for
imports of the subject merchandise from
information. See Statement of
the PRC materially injure, or threaten
Administrative Action accompanying
material injury to, a United States
the Uruguay Round Agreements Act,
industry. On January 14, 2008, the ITC
H.R. Doc. No. 103–316, Vol. 1, 889–90
published its preliminary determination (1994) (SAA) at 870.
that there is a reasonable indication that
In the Preliminary Determination, the
an industry in the United States is
Department based the CVD rates for the
materially injured by reason of allegedly two mandatory company respondents,
subsidized imports from the PRC of
Shanxi Jiaocheng Hongxing Chemical
subject merchandise. See Sodium Nitrite Co., Ltd. (Shanxi Jiaocheng) and Tianjin
from China and Germany: Investigation Soda Plant, together with its subsidiary
Nos. 701–TA–453 and 731–TA–1136–
company, Tianjin Port Free Trade Zone
1137 (Preliminary), 73 FR 2278, (January Pan Bohai International Trading Co.,
14, 2008).
Ltd. (Tianjin Soda Plant) on facts
Application of Facts Available and Use otherwise available, pursuant to section
776(a)(2)(C) of the Act because they did
of Adverse Inferences
not respond to the Department’s
Section 776 of the Act, governs the
countervailing duty questionnaire.
use of facts available and adverse facts
Furthermore, in selecting from the facts
available. Section 776(a) provides that if available, the Department determined
an interested party or any other person
that an adverse inference was
(1) withholds information that has been warranted, pursuant to section 776(b) of
requested by the Department; (2) fails to the Act because Shanxi Jiaocheng and
provide such information by deadlines
Tianjin Soda Plant did not respond to
or in the form and manner requested; (3) the Department’s questionnaire and
significantly impedes a proceeding; or
therefore did not cooperate to the best
(4) provides such information but the
of their abilities in the investigation.
information cannot be verified, the
Preliminary Determination at 19817–18.
Department shall use the facts otherwise
Neither the GOC nor Shanxi Jiaocheng
available in reaching its determination.
or Tianjin Soda Plant have provided any
The statute requires that certain
information or argument that would
conditions be met before the
warrant a reconsideration of the
Department may resort to facts
Department’s Preliminary
available. Where the Department
Determination that the reliance on facts
determines that a response to a request
available and the application of adverse
for information does not comply with
inferences is warranted. Therefore, for
the request, section 782(d) of the Act
purposes of this final determination we
provides that the Department will so
are relying on facts available and
inform the party submitting the
applying adverse inferences in
response and will, to the extent
accordance with section 776(b) of the
practicable, provide that party an
Act.
opportunity to remedy or to explain the
Selection of the Adverse Facts
deficiency.
Available Rate
If the party fails to remedy the
In deciding which facts to use as
deficiency within the applicable
adverse facts available, section 776(b) of
timelines, the Department may, subject
to section 782(e) of the Act, disregard all the Act and 19 CFR 351.308(c)(1)
authorize the Department to rely on
or part of the original and subsequent
information derived from (1) the
responses, as appropriate. Section
petition, (2) a final determination in the
782(e) of the Act states that the
investigation, (3) any previous review or
Department shall not decline to
determination, or (4) any other
consider information deemed
information placed on the record. The
‘‘deficient’’ under section 782(d) of the
Department has no information on the
Act if: (1) the information is submitted
record of this proceeding from which to
by the established deadline; (2) the
select appropriate AFA rates for any of
information can be verified; (3) the
the subject programs, and because this
information is not so incomplete that it
is an investigation, we have no previous
cannot serve as a reliable basis for
segments of the proceeding from which
reaching the applicable determination;
to draw potential AFA rates. In such
(4) the interested party has
cases, it is the Department’s practice to
demonstrated that it acted to the best of
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Injury Test
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select, as adverse facts available, the
highest calculated rate in any segment
of the proceeding. See, e.g., Certain In–
shell Roasted Pistachios from the
Islamic Republic of Iran: Final Results
of Countervailing Duty Administrative
Review (Pistachios from Iran), 71 FR
66165 (November 13, 2006) and
accompanying Issues and Decision
Memorandum at Comment 1. The
Department’s practice when selecting an
adverse rate from among the possible
sources of information is to ensure that
the margin is sufficiently adverse ‘‘as to
effectuate the statutory purposes of the
adverse facts available rule to induce
respondents to provide the Department
with complete and accurate information
in a timely manner.’’ See Notice of Final
Determination of Sales at Less than Fair
Value: Static Random Access Memory
Semiconductors from Taiwan, 63 FR
8909, 8932 (February 23, 1998). The
Department’s practice also ensures ‘‘that
the party does not obtain a more
favorable result by failing to cooperate
than if it had cooperated fully.’’ See
SAA at 870. In choosing the appropriate
balance between providing a respondent
with an incentive to respond accurately
and imposing a rate that is reasonably
related to the respondent’s prior
commercial activity, selecting the
highest prior rate ‘‘reflects a common
sense inference that the highest prior
margin is the most probative evidence of
current margins, because, if it were not
so, the importer, knowing of the rule,
would have produced current
information showing the margin to be
less.’’ See Rhone Poulenc, Inc. v. United
States, 899 F. 2d 1185, 1190 (Fed. Cir.
1990).
As stated in the Preliminary
Determination, the Department
determined that Shanxi Jiaocheng and
Tianjin Soda Plant each failed to act to
the best of its ability in this
investigation; thus, for each program
examined, the Department made the
adverse inference that each company
benefitted from the program, consistent
with our practice. See, e.g., Certain
Cold–Rolled Carbon Steel Flat Products
from the Republic of Korea; Final
Affirmative Countervailing Duty
Determination, 67 FR 62102 (October 3,
2002). In addition, we stated in the
Preliminary Determination that our
practice is to rely upon the highest
calculated program rate for the same
program or for a similar type of
program.1 See e.g., Circular Welded
1 The Department’s first preference is to use the
highest calculated rate for the same program (i.e.
identical program). If there is no identical program,
then the Department will use the highest calculated
rate for a similar program (e.g. tax program to tax
program, loan program to loan program).
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38983
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Carbon Quality Steel Pipe from the
People’s Republic of China: Final
Affirmative Countervailing Duty
Determination and Final Affirmative
Determination of Critical
Circumstances, 73 FR 31966 (June 5,
2008) and accompanying Issues and
Decision Memorandum at 2 (CWP from
the
PRC); CFS from the PRC at Comment 24;
Laminated Woven Sacks from the
People’s Republic of China: Final
Affirmative Countervailing Duty
Determination and Final Affirmative
Determination, in Part, of Critical
Circumstances, 73 FR 35639 (June 24,
2008) and accompanying Issues and
Decision Memorandum at 6–8 (LWS
from the PRC); see also Light–Walled
Rectangular Pipe and Tube From
People’s Republic of China: Final
Affirmative Countervailing Duty
Investigation Determination, 73 FR
35642 (June 24, 2008) and
accompanying Issues and Decision
Memorandum at 2 (LWRP from the
PRC). We have selected the adverse facts
available rate to apply to each program,
for purposes of this final determination,
consistent with this practice.
Information from the petition
indicates that during the POI, the
standard income tax for corporations in
China was 30 percent and there is an
additional local income tax at the rate
of three percent. See the November 8,
2007 letter to the Secretary of
Commerce, at Exhibit IV–12. To
determine the program rate for the 16
alleged income tax programs under
which companies receive either a
reduction or exemption of income tax,
we have applied an adverse inference
that Shanxi Jiaocheng and Tianjin Soda
Plant paid no income taxes during the
POI. Therefore, the highest possible
combined countervailable subsidy for
the 16 national, provincial, and local
income tax programs subject to this
investigation total 33 percent. Thus, we
are applying a countervailable rate of 33
percent on an overall basis for the 16
income tax programs (i.e., the 16 income
tax programs combined provided a
countervailable subsidy of 33 percent).
This 33 percent AFA rate does not apply
to income tax credit or income tax
refund programs.
For the remaining programs subject to
this investigation (including income tax
credit and income tax refund programs),
we are applying, where applicable, the
highest countervailable subsidy rate that
was calculated in a prior final
countervailing duty determination for a
product from the PRC for the same or
similar type of program (i.e., subsidy
programs regarding tax refunds or
credits, value–added tax (VAT), and
government–provided grants and loans).
See CFS from the PRC at Comment 24
and LWS from the PRC at 6–8. Absent
a subsidy rate for the same or similar
type of program, we are applying the
highest countervailable subsidy rate for
any program otherwise listed in any
prior final countervailing duty
determination involving the PRC.2 See
id.
For a discussion of the application of
the AFA rates for each program
determined to be countervailable, see
Memorandum to the File, Sodium
Nitrite from the PRC; Calculation of
Countervailable Subsidy Rates for the
Final Determination, dated concurrently
with this notice (Sodium Nitrite
Calculation Memorandum). Attached to
this memorandum are copies of CFS
from the PRC, LWS from the PRC, CWP
from the PRC, and LWRP from the PRC,
which contain the public information
concerning subsidy programs, including
the subsidy rates, upon which we are
relying as adverse facts available. See
Sodium Nitrite Calculation
Memorandum.
Section 776(c) of the Act provides
that, when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation or review, it shall, to the
extent practicable, corroborate that
information from independent sources
that are reasonably at its disposal. To
corroborate secondary information, the
Department will, to the extent
practicable, examine the reliability and
relevance of the information to be used.
The SAA emphasizes, however, that the
Department need not prove that the
selected facts available are the best
alternative information. See SAA at 869.
With regard to the reliability aspect of
corroboration, we note that these rates
were calculated in prior final
countervailing duty determinations. No
information has been presented that
calls into question the reliability of
these calculated rates that we are
applying as AFA. Unlike other types of
information, such as publicly available
data on the national inflation rate of a
given country or national average
interest rates, there typically are no
independent sources for data on
company–specific benefits resulting
from countervailable subsidy programs.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal in considering the relevance of
information used to calculate a
countervailable subsidy benefit. Where
circumstances indicate that the
information is not appropriate as
adverse facts available, the Department
will not use it. See, e.g., Fresh Cut
Flowers from Mexico; Final Results of
Antidumping Duty Administrative
Review, 61 FR 6812 (February 22, 1996).
In the absence of record evidence
concerning these programs due to
respondents’ decision not to participate
in the investigation, the Department has
reviewed the information concerning
China subsidy programs in this and
other cases. For those programs for
which the Department has found a
program–type match, we find that
programs of the same type are relevant
to the programs of this case. For the
programs for which there is no
program–type match, the Department
has selected the highest calculated
subsidy for any China program from
which the respondents could
conceivably receive a benefit to use as
AFA. The rate is therefore relevant to
the respondents in that it is an actual
calculated CVD rate for a China program
from which the respondents could
receive a benefit. No evidence had been
presented or obtained which contradicts
the reliability or relevance of the
secondary information which was
information from a prior China CVD
investigation. See Preliminary
Determination at 19819. Due to the lack
of participation by the respondents and
the resulting lack of record information
concerning these programs, the
Department has corroborated the rates it
selected to the extent practicable.
2 In applying the highest calculated
countervailable subsidy rate for any program
otherwise listed, we are disregarding the calculated
rates for the programs ‘‘Hot-Rolled Steel For Less
Than Adequate Remuneration’’ (CWP from the
PRC), and ‘‘Government Provision of Inputs for Less
Than Adequate Remuneration’’ (LWS from the PR
C), because the industry under investigation in this
proceeding cannot use the products for which these
rates were calculated. See Sodium Nitrite From the
Federal Republic of Germany And The People’s
Republic of China: Petition For The Imposition of
Antidumping And Countervailing Duties,
(November 8, 2007) Volume I at 32–33. See also
Sodium Nitrite from China and Germany:
Investigation Nos. 701–TA–453 and 731–TA–1136–
1137 (Preliminary), ITC Publication 3979, January
2008 at 8. The Department’s decision to not use, as
AFA, these program rates is based on the particular
facts of this investigation and this particular set of
facts may not be applicable or identifiable in
another proceeding.
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Final Determination
In accordance with section
705(c)(1)(B)(i) of the Act, we have
assigned a subsidy rate to each of the
two producers/exporters of the subject
merchandise that were selected as
mandatory respondent companies in
this CVD investigation. We determine
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the total net countervailable subsidy
rates to be:
Producer/Exporter
Subsidy Rate
Shanxi Jiaocheng Hongxing Chemical Co., Ltd. (Shanxi Jiaocheng) .......................................................................
Tianjin Soda Plant Tianjin Port Free Trade Zone Pan Bohai International Trading Co., Ltd. (Tianjin Soda Plant)
All Others ...................................................................................................................................................................
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With respect to the all others rate,
section 705(c)(5)(A)(ii) of the Act
provides that if the countervailable
subsidy rates established for all
exporters and producers individually
investigated are determined entirely in
accordance with section 776 of the Act,
the Department may use any reasonable
method to establish an all others rate for
exporters and producers not
individually investigated. In this case,
the rate established for the two
mandatory respondents is based entirely
on facts available under section 776 of
the Act. There is no other information
on the record upon which we could
determine an all others rate. As a result,
we have used the AFA rate assigned for
Shanxi Jiaocheng and Tianjin Soda
Plant as the all others rate. This method
is consistent with the Department’s past
practice. See e.g. Final Affirmative
Countervailing Duty Determination:
Certain Hot–Rolled Carbon Steel Flat
Products From Argentina, 66 FR 37007,
37008 (July 16, 2001); see also Final
Affirmative Countervailing Duty
Determination: Prestressed Steel Wire
Strand From India, 68 FR 68356, 68357
(December 8, 2003).
Suspension of Liquidation and Cash
Deposit Requirements
In accordance with sections
705(c)(1)(B) of the Act, we directed U.S.
Customs and Border Protection (CBP) to
suspend liquidation of all entries of the
subject merchandise from the PRC,
which are entered or withdrawn from
warehouse, for consumption on or after
April 11, 2008, the date of publication
of the Preliminary Determination. In
accordance with sections 705(c)(1)(B) of
the Act, we will instruct CBP to require
cash deposits at the rates shown above
on all entries of the subject merchandise
from the PRC, entered or withdrawn
from warehouse, for consumption on or
after the date of publication of this final
determination.
If the ITC issues a final affirmative
injury determination, we will issue a
countervailing duty order under section
706(a) of the Act. If the ITC determines
that material injury to, threat of material
injury to, or material retardation of, the
domestic industry does not exist, this
proceeding will be terminated and all
estimated duties deposited or securities
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posted as a result of the suspension of
liquidation will be refunded or
canceled.
ITC Notification
In accordance with section 705(d) of
the Act, we will notify the ITC of our
determination. In addition, we are
making available to the ITC all non–
privileged and non–proprietary
information related to this investigation.
We will allow the ITC access to all
privileged and business proprietary
information in our files, provided the
ITC confirms it will not disclose such
information, either publicly or under an
administrative protective order (APO),
without the written consent of the
Assistant Secretary for Import
Administration.
Return or Destruction of Proprietary
Information
In the event that the ITC issues a final
negative injury determination, this
notice will serve as the only reminder
to parties subject to APO of their
responsibility concerning the
destruction of proprietary information
disclosed under APO in accordance
with section 351.305(a)(3) of the
Department’s regulations. Failure to
comply is a violation of the APO.
This determination is issued and
published pursuant to sections 705(d)
and 777(i) of the Act.
Dated: June 30, 2008.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E8–15479 Filed 7–7–08; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
(A–570–925)
Notice of Final Determination of Sales
at Less Than Fair Value: Sodium Nitrite
from the People’s Republic of China
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: July 8, 2008.
SUMMARY: The Department of Commerce
(Department) determines that sodium
AGENCY:
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169.01%
169.01%
169.01%
nitrite from the People’s Republic of
China (PRC) is being, or is likely to be,
sold in the United States at less than fair
value (LTFV) as provided in section 735
of the Tariff Act of 1930, as amended
(the Act). We made no changes to the
preliminary dumping margin in this
investigation. The final dumping margin
for this investigation is listed in the
‘‘Final Determination Margin’’ section
below. The period covered by this
investigation is April 1, 2007, through
September 30, 2007.
FOR FURTHER INFORMATION CONTACT:
Magd Zalok or Rebecca Pandolph, AD/
CVD Operations, Office 4 Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–4162 and (202)
482–3627, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 23, 2008, the Department
published in the Federal Register the
notice of its preliminary determination
of sales at LTFV in the antidumping
duty investigation of sodium nitrite
from the PRC. See Notice of Preliminary
Determination of Sales at Less Than
Fair Value: Sodium Nitrite from the
People’s Republic of China, 73 FR 21906
(April 23, 2008) (Preliminary
Determination).
With respect to the Department’s
invitation to comment on the
Preliminary Determination, on May 23,
2008, General Chemical LLC (the
petitioner) submitted a case brief. No
other party submitted case or rebuttal
briefs in this proceeding.
Scope of the Investigation
The merchandise covered by this
investigation is sodium nitrite in any
form, at any purity level. In addition,
the sodium nitrite covered by this
investigation may or may not contain an
anti–caking agent. Examples of names
commonly used to reference sodium
nitrite are nitrous acid, sodium salt,
anti–rust, diazotizing salts, erinitrit, and
filmerine. The chemical composition of
sodium nitrite is NaNO2 and it is
generally classified under subheading
2834.10.1000 of the Harmonized Tariff
Schedule of the United States (HTSUS).
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]]>Agencies
[Federal Register Volume 73, Number 131 (Tuesday, July 8, 2008)]
[Notices]
[Pages 38981-38984]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15479]
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DEPARTMENT OF COMMERCE
International Trade Administration
C-570-926
Sodium Nitrite From the People's Republic of China: Final
Affirmative Countervailing Duty Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) has reached a
final determination that countervailable subsidies are being provided
to producers/exporters of sodium nitrite from the People's Republic of
China (PRC). On April 11, 2008, we issued the Preliminary
Determination, see Sodium Nitrite From the People's Republic of China:
Preliminary Affirmative Countervailing Duty Determination, 73 FR 19816
(April 11, 2008) (Preliminary Determination). Because neither the
Government of the People's Republic of China (GOC) nor the two
mandatory company respondents participated in this investigation, the
Department relied on facts available and applied adverse inferences in
reaching the Preliminary Determination. The Department assigned a
countervailable subsidy rate to each program under investigation using
rates calculated in Coated Free Sheet Paper from the People's Republic
of China: Final Affirmative Countervailing Duty Determination, 72 FR
60645 (October 25, 2007) and accompanying Issues and Decision
Memorandum (CFS from the PRC). We invited interested parties to comment
on the Preliminary Determination. No interested party submitted
comments regarding the Preliminary Determination.
Since the publication of the Preliminary Determination, the
Department has reached affirmative final countervailing duty
determinations in several investigations of products from the PRC. We
have used the rates calculated in these intervening final
determinations to revise the countervailable subsidy rates for certain
programs. For information on the countervailable subsidy rates, see the
``Final Determination'' section of this notice.
EFFECTIVE DATE: July 8, 2008.
FOR FURTHER INFORMATION CONTACT: Gene Calvert or Paul Matino, AD/CVD
Operations, Office 6, Import Administration, International Trade
Administration, U.S. Department of Commerce, Room 7866, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3586 or (202) 482-4146, respectively.
SUPPLEMENTARY INFORMATION:
Case History
The following events have occurred since the publication of the
Preliminary Determination in the Federal Register on April 11, 2008. On
April 14, 2008, petitioner (General Chemical LLC) submitted a letter,
in accordance with section 705(a)(1) of the Tariff Act of 1930, as
amended (the Act), requesting alignment of the final countervailing
duty determination with the final determination in the companion
antidumping duty investigation of sodium nitrite from the PRC. On April
28, 2008, the Department aligned the final countervailing duty
determination with the final determination in the companion antidumping
duty investigation of sodium nitrite from the PRC. See Sodium Nitrite
from the People's Republic of China: Alignment of Final Countervailing
Duty Determination with Final Antidumping Duty Determination, 73 FR
22920 (April 28, 2008).
Period of Investigation
The period of investigation (POI) for which we are measuring
subsidies is calendar year 2006. See 19 CFR 351.204(b)(2).
Scope of the Investigation
The merchandise covered by this investigation is sodium nitrite in
any form, at any purity level. In addition, the sodium nitrite covered
by this investigation may or may not contain an anti-caking agent.
Examples of names commonly used to reference sodium nitrite are nitrous
acid, sodium salt, anti-rust, diazotizing salts, erinitrit, and
filmerine. The chemical composition of sodium nitrite is NaNO2 and it
is generally classified under subheading 2834.10.1000 of the Harmonized
Tariff Schedule of the United States (HTSUS). The American Chemical
Society Chemical Abstract Service (CAS) has assigned the name ``sodium
nitrite'' to sodium nitrite. The CAS registry number is 7632-00-0. For
purposes of the scope of this investigation, the narrative description
is dispositive, not the tariff heading, CAS registry number or CAS
name, which are provided for convenience and customs purposes.
[[Page 38982]]
Injury Test
Because the PRC is a ``Subsidies Agreement Country'' within the
meaning of section 701(b) of the Act, the International Trade
Commission (ITC) is required to determine pursuant to section 701(a)(2)
of the Act whether imports of the subject merchandise from the PRC
materially injure, or threaten material injury to, a United States
industry. On January 14, 2008, the ITC published its preliminary
determination that there is a reasonable indication that an industry in
the United States is materially injured by reason of allegedly
subsidized imports from the PRC of subject merchandise. See Sodium
Nitrite from China and Germany: Investigation Nos. 701-TA-453 and 731-
TA-1136-1137 (Preliminary), 73 FR 2278, (January 14, 2008).
Application of Facts Available and Use of Adverse Inferences
Section 776 of the Act, governs the use of facts available and
adverse facts available. Section 776(a) provides that if an interested
party or any other person (1) withholds information that has been
requested by the Department; (2) fails to provide such information by
deadlines or in the form and manner requested; (3) significantly
impedes a proceeding; or (4) provides such information but the
information cannot be verified, the Department shall use the facts
otherwise available in reaching its determination. The statute requires
that certain conditions be met before the Department may resort to
facts available. Where the Department determines that a response to a
request for information does not comply with the request, section
782(d) of the Act provides that the Department will so inform the party
submitting the response and will, to the extent practicable, provide
that party an opportunity to remedy or to explain the deficiency.
If the party fails to remedy the deficiency within the applicable
timelines, the Department may, subject to section 782(e) of the Act,
disregard all or part of the original and subsequent responses, as
appropriate. Section 782(e) of the Act states that the Department shall
not decline to consider information deemed ``deficient'' under section
782(d) of the Act if: (1) the information is submitted by the
established deadline; (2) the information can be verified; (3) the
information is not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination; (4) the interested
party has demonstrated that it acted to the best of its ability; and
(5) the information can be used without undue difficulties.
Section 776(b) of the Act provides that the Department may use an
inference adverse to the interests of a party that has failed to
cooperate by not acting to the best of its ability to comply with the
Department's requests for information. See Statement of Administrative
Action accompanying the Uruguay Round Agreements Act, H.R. Doc. No.
103-316, Vol. 1, 889-90 (1994) (SAA) at 870.
In the Preliminary Determination, the Department based the CVD
rates for the two mandatory company respondents, Shanxi Jiaocheng
Hongxing Chemical Co., Ltd. (Shanxi Jiaocheng) and Tianjin Soda Plant,
together with its subsidiary company, Tianjin Port Free Trade Zone Pan
Bohai International Trading Co., Ltd. (Tianjin Soda Plant) on facts
otherwise available, pursuant to section 776(a)(2)(C) of the Act
because they did not respond to the Department's countervailing duty
questionnaire. Furthermore, in selecting from the facts available, the
Department determined that an adverse inference was warranted, pursuant
to section 776(b) of the Act because Shanxi Jiaocheng and Tianjin Soda
Plant did not respond to the Department's questionnaire and therefore
did not cooperate to the best of their abilities in the investigation.
Preliminary Determination at 19817-18.
Neither the GOC nor Shanxi Jiaocheng or Tianjin Soda Plant have
provided any information or argument that would warrant a
reconsideration of the Department's Preliminary Determination that the
reliance on facts available and the application of adverse inferences
is warranted. Therefore, for purposes of this final determination we
are relying on facts available and applying adverse inferences in
accordance with section 776(b) of the Act.
Selection of the Adverse Facts Available Rate
In deciding which facts to use as adverse facts available, section
776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to
rely on information derived from (1) the petition, (2) a final
determination in the investigation, (3) any previous review or
determination, or (4) any other information placed on the record. The
Department has no information on the record of this proceeding from
which to select appropriate AFA rates for any of the subject programs,
and because this is an investigation, we have no previous segments of
the proceeding from which to draw potential AFA rates. In such cases,
it is the Department's practice to select, as adverse facts available,
the highest calculated rate in any segment of the proceeding. See,
e.g., Certain In-shell Roasted Pistachios from the Islamic Republic of
Iran: Final Results of Countervailing Duty Administrative Review
(Pistachios from Iran), 71 FR 66165 (November 13, 2006) and
accompanying Issues and Decision Memorandum at Comment 1. The
Department's practice when selecting an adverse rate from among the
possible sources of information is to ensure that the margin is
sufficiently adverse ``as to effectuate the statutory purposes of the
adverse facts available rule to induce respondents to provide the
Department with complete and accurate information in a timely manner.''
See Notice of Final Determination of Sales at Less than Fair Value:
Static Random Access Memory Semiconductors from Taiwan, 63 FR 8909,
8932 (February 23, 1998). The Department's practice also ensures ``that
the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' See SAA at 870. In
choosing the appropriate balance between providing a respondent with an
incentive to respond accurately and imposing a rate that is reasonably
related to the respondent's prior commercial activity, selecting the
highest prior rate ``reflects a common sense inference that the highest
prior margin is the most probative evidence of current margins,
because, if it were not so, the importer, knowing of the rule, would
have produced current information showing the margin to be less.'' See
Rhone Poulenc, Inc. v. United States, 899 F. 2d 1185, 1190 (Fed. Cir.
1990).
As stated in the Preliminary Determination, the Department
determined that Shanxi Jiaocheng and Tianjin Soda Plant each failed to
act to the best of its ability in this investigation; thus, for each
program examined, the Department made the adverse inference that each
company benefitted from the program, consistent with our practice. See,
e.g., Certain Cold-Rolled Carbon Steel Flat Products from the Republic
of Korea; Final Affirmative Countervailing Duty Determination, 67 FR
62102 (October 3, 2002). In addition, we stated in the Preliminary
Determination that our practice is to rely upon the highest calculated
program rate for the same program or for a similar type of program.\1\
See e.g., Circular Welded
[[Page 38983]]
Carbon Quality Steel Pipe from the People's Republic of China: Final
Affirmative Countervailing Duty Determination and Final Affirmative
Determination of Critical Circumstances, 73 FR 31966 (June 5, 2008) and
accompanying Issues and Decision Memorandum at 2 (CWP from the PRC);
CFS from the PRC at Comment 24; Laminated Woven Sacks from the People's
Republic of China: Final Affirmative Countervailing Duty Determination
and Final Affirmative Determination, in Part, of Critical
Circumstances, 73 FR 35639 (June 24, 2008) and accompanying Issues and
Decision Memorandum at 6-8 (LWS from the PRC); see also Light-Walled
Rectangular Pipe and Tube From People's Republic of China: Final
Affirmative Countervailing Duty Investigation Determination, 73 FR
35642 (June 24, 2008) and accompanying Issues and Decision Memorandum
at 2 (LWRP from the PRC). We have selected the adverse facts available
rate to apply to each program, for purposes of this final
determination, consistent with this practice.
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\1\ The Department's first preference is to use the highest
calculated rate for the same program (i.e. identical program). If
there is no identical program, then the Department will use the
highest calculated rate for a similar program (e.g. tax program to
tax program, loan program to loan program).
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Information from the petition indicates that during the POI, the
standard income tax for corporations in China was 30 percent and there
is an additional local income tax at the rate of three percent. See the
November 8, 2007 letter to the Secretary of Commerce, at Exhibit IV-12.
To determine the program rate for the 16 alleged income tax programs
under which companies receive either a reduction or exemption of income
tax, we have applied an adverse inference that Shanxi Jiaocheng and
Tianjin Soda Plant paid no income taxes during the POI. Therefore, the
highest possible combined countervailable subsidy for the 16 national,
provincial, and local income tax programs subject to this investigation
total 33 percent. Thus, we are applying a countervailable rate of 33
percent on an overall basis for the 16 income tax programs (i.e., the
16 income tax programs combined provided a countervailable subsidy of
33 percent). This 33 percent AFA rate does not apply to income tax
credit or income tax refund programs.
For the remaining programs subject to this investigation (including
income tax credit and income tax refund programs), we are applying,
where applicable, the highest countervailable subsidy rate that was
calculated in a prior final countervailing duty determination for a
product from the PRC for the same or similar type of program (i.e.,
subsidy programs regarding tax refunds or credits, value-added tax
(VAT), and government-provided grants and loans). See CFS from the PRC
at Comment 24 and LWS from the PRC at 6-8. Absent a subsidy rate for
the same or similar type of program, we are applying the highest
countervailable subsidy rate for any program otherwise listed in any
prior final countervailing duty determination involving the PRC.\2\ See
id.
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\2\ In applying the highest calculated countervailable subsidy
rate for any program otherwise listed, we are disregarding the
calculated rates for the programs ``Hot-Rolled Steel For Less Than
Adequate Remuneration'' (CWP from the PRC), and ``Government
Provision of Inputs for Less Than Adequate Remuneration'' (LWS from
the PR C), because the industry under investigation in this
proceeding cannot use the products for which these rates were
calculated. See Sodium Nitrite From the Federal Republic of Germany
And The People's Republic of China: Petition For The Imposition of
Antidumping And Countervailing Duties, (November 8, 2007) Volume I
at 32-33. See also Sodium Nitrite from China and Germany:
Investigation Nos. 701-TA-453 and 731-TA-1136-1137 (Preliminary),
ITC Publication 3979, January 2008 at 8. The Department's decision
to not use, as AFA, these program rates is based on the particular
facts of this investigation and this particular set of facts may not
be applicable or identifiable in another proceeding.
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For a discussion of the application of the AFA rates for each
program determined to be countervailable, see Memorandum to the File,
Sodium Nitrite from the PRC; Calculation of Countervailable Subsidy
Rates for the Final Determination, dated concurrently with this notice
(Sodium Nitrite Calculation Memorandum). Attached to this memorandum
are copies of CFS from the PRC, LWS from the PRC, CWP from the PRC, and
LWRP from the PRC, which contain the public information concerning
subsidy programs, including the subsidy rates, upon which we are
relying as adverse facts available. See Sodium Nitrite Calculation
Memorandum.
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation or review, it shall, to the extent
practicable, corroborate that information from independent sources that
are reasonably at its disposal. To corroborate secondary information,
the Department will, to the extent practicable, examine the reliability
and relevance of the information to be used. The SAA emphasizes,
however, that the Department need not prove that the selected facts
available are the best alternative information. See SAA at 869.
With regard to the reliability aspect of corroboration, we note
that these rates were calculated in prior final countervailing duty
determinations. No information has been presented that calls into
question the reliability of these calculated rates that we are applying
as AFA. Unlike other types of information, such as publicly available
data on the national inflation rate of a given country or national
average interest rates, there typically are no independent sources for
data on company-specific benefits resulting from countervailable
subsidy programs.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal in
considering the relevance of information used to calculate a
countervailable subsidy benefit. Where circumstances indicate that the
information is not appropriate as adverse facts available, the
Department will not use it. See, e.g., Fresh Cut Flowers from Mexico;
Final Results of Antidumping Duty Administrative Review, 61 FR 6812
(February 22, 1996). In the absence of record evidence concerning these
programs due to respondents' decision not to participate in the
investigation, the Department has reviewed the information concerning
China subsidy programs in this and other cases. For those programs for
which the Department has found a program-type match, we find that
programs of the same type are relevant to the programs of this case.
For the programs for which there is no program-type match, the
Department has selected the highest calculated subsidy for any China
program from which the respondents could conceivably receive a benefit
to use as AFA. The rate is therefore relevant to the respondents in
that it is an actual calculated CVD rate for a China program from which
the respondents could receive a benefit. No evidence had been presented
or obtained which contradicts the reliability or relevance of the
secondary information which was information from a prior China CVD
investigation. See Preliminary Determination at 19819. Due to the lack
of participation by the respondents and the resulting lack of record
information concerning these programs, the Department has corroborated
the rates it selected to the extent practicable.
Final Determination
In accordance with section 705(c)(1)(B)(i) of the Act, we have
assigned a subsidy rate to each of the two producers/exporters of the
subject merchandise that were selected as mandatory respondent
companies in this CVD investigation. We determine
[[Page 38984]]
the total net countervailable subsidy rates to be:
------------------------------------------------------------------------
Producer/Exporter Subsidy Rate
------------------------------------------------------------------------
Shanxi Jiaocheng Hongxing Chemical Co., 169.01%
Ltd. (Shanxi Jiaocheng)..................
Tianjin Soda Plant Tianjin Port Free Trade 169.01%
Zone Pan Bohai International Trading Co.,
Ltd. (Tianjin Soda Plant)................
All Others................................ 169.01%
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With respect to the all others rate, section 705(c)(5)(A)(ii) of
the Act provides that if the countervailable subsidy rates established
for all exporters and producers individually investigated are
determined entirely in accordance with section 776 of the Act, the
Department may use any reasonable method to establish an all others
rate for exporters and producers not individually investigated. In this
case, the rate established for the two mandatory respondents is based
entirely on facts available under section 776 of the Act. There is no
other information on the record upon which we could determine an all
others rate. As a result, we have used the AFA rate assigned for Shanxi
Jiaocheng and Tianjin Soda Plant as the all others rate. This method is
consistent with the Department's past practice. See e.g. Final
Affirmative Countervailing Duty Determination: Certain Hot-Rolled
Carbon Steel Flat Products From Argentina, 66 FR 37007, 37008 (July 16,
2001); see also Final Affirmative Countervailing Duty Determination:
Prestressed Steel Wire Strand From India, 68 FR 68356, 68357 (December
8, 2003).
Suspension of Liquidation and Cash Deposit Requirements
In accordance with sections 705(c)(1)(B) of the Act, we directed
U.S. Customs and Border Protection (CBP) to suspend liquidation of all
entries of the subject merchandise from the PRC, which are entered or
withdrawn from warehouse, for consumption on or after April 11, 2008,
the date of publication of the Preliminary Determination. In accordance
with sections 705(c)(1)(B) of the Act, we will instruct CBP to require
cash deposits at the rates shown above on all entries of the subject
merchandise from the PRC, entered or withdrawn from warehouse, for
consumption on or after the date of publication of this final
determination.
If the ITC issues a final affirmative injury determination, we will
issue a countervailing duty order under section 706(a) of the Act. If
the ITC determines that material injury to, threat of material injury
to, or material retardation of, the domestic industry does not exist,
this proceeding will be terminated and all estimated duties deposited
or securities posted as a result of the suspension of liquidation will
be refunded or canceled.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the
ITC of our determination. In addition, we are making available to the
ITC all non-privileged and non-proprietary information related to this
investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC
confirms it will not disclose such information, either publicly or
under an administrative protective order (APO), without the written
consent of the Assistant Secretary for Import Administration.
Return or Destruction of Proprietary Information
In the event that the ITC issues a final negative injury
determination, this notice will serve as the only reminder to parties
subject to APO of their responsibility concerning the destruction of
proprietary information disclosed under APO in accordance with section
351.305(a)(3) of the Department's regulations. Failure to comply is a
violation of the APO.
This determination is issued and published pursuant to sections
705(d) and 777(i) of the Act.
Dated: June 30, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-15479 Filed 7-7-08; 8:45 am]
BILLING CODE 3510-DS-S
