Final Determination of Sales at Less Than Fair Value: Raw Flexible Magnets from the People's Republic of China, 39669-39672 [E8-15732]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 73, Number 133 (Thursday, July 10, 2008)]
[Notices]
[Pages 39669-39672]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-15732]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-922


Final Determination of Sales at Less Than Fair Value: Raw 
Flexible Magnets from the People's Republic of China

AGENCY: Import Administration, International Trade Administration, U.S. 
Department of Commerce.

EFFECTIVE DATE: July 10, 2008.
SUMMARY: The Department of Commerce (the ``Department'') has determined 
that raw flexible magnets from the People's Republic of China (``PRC'') 
are being, or are likely to be, sold in the United States at less than 
fair value (``LTFV''), as provided in section 733 of the Tariff Act of 
1930, as amended (the ``Act''). The final dumping margins for this 
investigation are listed in the ``Final Determination Margins'' section 
of this notice.

FOR FURTHER INFORMATION CONTACT: Melissa Blackledge or Shawn Higgins; 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-3518 and (202) 482-0679, 
respectively.

SUPPLEMENTARY INFORMATION:

Case History

    On April 25, 2008, the Department published in the Federal Register 
its preliminary determination that raw flexible magnets from the PRC 
are being, or are likely to be, sold in the United States at LTFV, as 
provided in the Act. See Preliminary Determination of Sales at Less 
Than Fair Value: Raw Flexible Magnets from the People's Republic of 
China, 73 FR 22327 (April 25, 2008) (``Preliminary Determination''). 
For the Preliminary Determination, the Department assigned a 185.28 
percent dumping margin to the PRC-wide entity - including Polyflex 
Magnets Ltd. (``Polyflex'') - and a 105.00 percent dumping margin to 
Guangzhou Newlife Magnet Co., Ltd. (``Newlife''), a separate rate 
applicant. In May and June 2008, Magnum Magnetics Corporation 
(``Petitioner''), Target Corporation (``Target''), A-L-L Magnetics LLP 
(``A-L-L''), and SH Industries, LLC (``SH Industries'') filed comments 
regarding

[[Page 39670]]

the scope of the investigation, pursuant to the Department's request 
for scope comments contained in the Preliminary Determination. See 
``Scope Comments'' section below. No party submitted case briefs.

Changes since the Preliminary Determination

    As discussed below, we have made certain changes to the language 
describing the scope of this investigation. Otherwise, because no party 
submitted case briefs and there are no other circumstances which 
warrant the revision of our Preliminary Determination, we have not made 
changes to our analysis or the dumping margins assigned in the 
Preliminary Determination.

Period of Investigation

    The period of investigation (``POI'') is January 1, 2007, through 
June 30, 2007. This period comprises the two most recently completed 
fiscal quarters prior to the month in which the petition was filed 
(i.e., September 2007). See 19 CFR 351.204(b)(1).

Scope of the Investigation

    The products covered by this investigation are certain flexible 
magnets regardless of shape,\1\ color, or packaging.\2\ Subject 
flexible magnets are bonded magnets composed (not necessarily 
exclusively) of (i) any one or combination of various flexible binders 
(such as polymers or co-polymers, or rubber) and (ii) a magnetic 
element, which may consist of a ferrite permanent magnet material 
(commonly, strontium or barium ferrite, or a combination of the two), a 
metal alloy (such as NdFeB or Alnico), any combination of the foregoing 
with each other or any other material, or any other material capable of 
being permanently magnetized.
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    \1\ The term ``shape'' includes, but is not limited to profiles, 
which are flexible magnets with a non-rectangular cross-section.
    \2\ Packaging includes retail or specialty packaging such as 
digital printer cartridges.
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    Subject flexible magnets may be in either magnetized or 
unmagnetized (including demagnetized) condition, and may or may not be 
fully or partially laminated or fully or partially bonded with paper, 
plastic, or other material, of any composition and/or color. Subject 
flexible magnets may be uncoated or may be coated with an adhesive or 
any other coating or combination of coatings.
    Specifically excluded from the scope of this investigation are 
printed flexible magnets, defined as flexible magnets (including 
individual magnets) that are laminated or bonded with paper, plastic, 
or other material if such paper, plastic, or other material bears 
printed text and/or images, including but not limited to business 
cards, calendars, poetry, sports event schedules, business promotions, 
decorative motifs, and the like. This exclusion does not apply to such 
printed flexible magnets if the printing concerned consists of only the 
following: a trade mark or trade name; country of origin; border, 
stripes, or lines; any printing that is removed in the course of 
cutting and/or printing magnets for retail sale or other disposition 
from the flexible magnet; manufacturing or use instructions (e.g., 
``print this side up,'' ``this side up,'' ``laminate here''); printing 
on adhesive backing (that is, material to be removed in order to expose 
adhesive for use such as application of laminate) or on any other 
covering that is removed from the flexible magnet prior or subsequent 
to final printing and before use; non-permanent printing (that is, 
printing in a medium that facilitates easy removal, permitting the 
flexible magnet to be re-printed); printing on the back (magnetic) 
side; or any combination of the above.
    All products meeting the physical description of subject 
merchandise that are not specifically excluded are within the scope of 
this investigation. The products subject to the investigation are 
currently classifiable principally under subheadings 8505.19.10 and 
8505.19.20 of the Harmonized Tariff Schedule of the United States 
(``HTSUS''). The HTSUS subheadings are provided only for convenience 
and customs purposes; the written description of the scope of this 
proceeding is dispositive.

Scope Comments

    In the Preliminary Determination, the Department explained that, on 
November 7, 2007, SH Industries, a U.S. importer of subject 
merchandise, argued that magnetic photo pockets, which are flexible 
magnets with clear plastic material fused to the magnet to form a 
pocket into which photographs and other items may be inserted for 
display, should be excluded from the scope of the antidumping and 
countervailing duty investigations on raw flexible magnets from the PRC 
and Taiwan. On November 13, 2007, Petitioner filed a response to the 
request by SH Industries, arguing that magnetic photo pockets are 
within the scope of the investigations. On April 11, 2008, Petitioner 
submitted additional arguments concerning this issue. Because we 
received this letter only four business days before the statutory 
deadline for the Preliminary Determination, we did not have an 
opportunity to consider it prior to issuance of the Preliminary 
Determination.
    In the Preliminary Determination, 73 FR at 22333, the Department 
invited interested parties to submit comments on Petitioner's April 11, 
2008, submission and to present evidence concerning the meaning of the 
terms ``sheeting, strips, and profiles'' as those terms are used within 
the industry. Additionally, because the scope language stated that 
``subject merchandise may be of any color and may or may not be 
laminated or bonded with paper, plastic or other material, which paper, 
plastic or other material may be of any composition and/or color,'' the 
Department encouraged interested parties to comment on whether the 
plastic photo pocket fused to the flexible magnet satisfies this 
description. In addition, the Department stated that interested parties 
could submit information that would be relevant in an analysis 
conducted pursuant to 19 CFR 351.225(k)(2).
    In May and June 2008, Petitioner, Target, A-L-L, and SH Industries 
filed comments and rebuttal comments regarding the scope of the 
investigations and magnetic photo pockets. On June 9, 2008, officials 
from the Department met with representatives of Target to discuss the 
scope of the investigations. See ``Memorandum to the File,'' dated June 
10, 2008. On June 13, 2008, counsel for Petitioner met with officials 
from the Department to discuss the scope of the investigations. See 
``Memorandum to the File,'' dated June 16, 2008.
    The Department has analyzed the comments submitted by SH 
Industries, Target, A-L-L, and Petitioner and has determined that 
magnetic photo pockets are within the scope of the investigations. The 
Department has also modified the language describing the scope of these 
investigations to clarify the product coverage. In its request, SH 
Industries acknowledges that its magnetic photo pockets consist of 
flexible magnet material with a layer of plastic laminate fused along 
the sides of the flexible magnet. At no point does SH Industries argue 
that the flexible magnetic material in its photo pockets does not meet 
the physical description of the flexible magnets covered by the scope 
of the investigations. Rather, SH Industries argues that the attachment 
of a layer of clear plastic to the flexible magnet results in a product 
that is outside the scope of the investigations because the purpose of 
the product is to protect photographs.
    Similarly, Target asserts that, rather than being a raw flexible 
magnet, magnetic photo pockets are properly

[[Page 39671]]

characterized as finished retail products which use magnetic sheeting 
as an input. Target also argues that the clear plastic laminate is 
neither bonded nor laminated to the magnetic sheeting.
    A-L-L argues that the scope should be limited to products produced 
by the Petitioner as evidenced by inclusion on the Petitioner's 
website.
    As an initial matter, the Department does not generally define 
subject merchandise by end-use application. Moreover, because the 
language of the scope stated originally that ``{s{time} ubject 
merchandise may be of any color and may or may not be laminated or 
bonded with paper, plastic, or other material, which paper, plastic, or 
other material may be of any composition and/or color,'' Preliminary 
Determination, 73 FR at 22332, the plastic laminate fused to the sides 
of the flexible magnet does not remove the photo pockets from the scope 
of the investigations. Finally, the issue of whether an item appears on 
the Petitioner's website is not relevant to our analysis. For these 
reasons, we have determined that the magnetic photo pockets described 
by SH Industries are within the scope of the investigations. In 
addition, we have clarified that ``{s{time} ubject flexible magnets may 
be in either magnetized or unmagnetized (including demagnetized) 
condition, and may or may not be fully or partially laminated or fully 
or partially bonded with paper, plastic, or other material, of any 
composition and/or color.'' Finally, because we have received inquiries 
concerning the terminology in the scope language and product coverage, 
we have clarified product coverage by reordering the scope language and 
including certain explanatory definitions. Our revised scope language 
neither enlarges nor contracts product coverage. See ``Scope of 
Investigation'' section above.
    The Department received a scope-ruling request from Magnet LLC on 
May 21, 2008. Because this request was made after the Preliminary 
Determination, the Department has not addressed this request in this 
final determination. The Department will consider Magnet LLC's scope-
ruling request in the event the Department publishes an antidumping 
duty order in this proceeding.

Non-Market Economy Treatment

    In the Preliminary Determination, the Department considered the PRC 
to be a non-market economy (``NME'') country. In accordance with 
section 771(18)(C)(i) of the Act, any determination that a country is 
an NME country shall remain in effect until revoked by the 
administering authority. See Tapered Roller Bearings and Parts Thereof, 
Finished and Unfinished, From the People's Republic of China: 
Preliminary Results of 2001-2002 Administrative Review and Partial 
Rescission of Review, 68 FR 7500 (February 14, 2003), unchanged in 
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, 
from the People's Republic of China: Final Results of 2001-2002 
Administrative Review and Partial Rescission of Review, 68 FR 70488 
(December 18, 2003). No party has commented on the Department's 
classification of the PRC as an NME. Therefore, for the final 
determination, we continue to consider the PRC to be an NME.

Separate Rates

    In proceedings involving NME countries, the Department begins with 
a rebuttable presumption that all companies within the country are 
subject to government control and, thus, should be assigned a single 
antidumping duty deposit rate. It is the Department's policy to assign 
all exporters of merchandise subject to an investigation in an NME 
country this single rate unless an exporter can demonstrate that it is 
sufficiently independent so as to be entitled to a separate rate. See 
Final Determination of Sales at Less Than Fair Value: Sparklers from 
the People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified 
by Notice of Final Determination of Sales at Less Than Fair Value: 
Silicon Carbide from the People's Republic of China, 59 FR 22585 (May 
2, 1994), and 19 CFR 351.107(d).
    In the Preliminary Determination, we found that Newlife 
demonstrated its eligibility for separate-rate status. Since the 
publication of the Preliminary Determination, no party has commented on 
Newlife's eligibility for separate-rate status. For the final 
determination, we continue to find that the evidence placed on the 
record of this investigation by Newlife demonstrates both a de jure and 
de facto absence of government control with respect to its respective 
exports of the merchandise under investigation. Thus, we continue to 
find that Newlife is eligible for separate-rate status. Normally the 
separate rate is determined based on the estimated weighted-average 
dumping margins established for exporters and producers individually 
investigated, excluding de minimis margins or margins based entirely on 
adverse facts available (``AFA''). See section 735(c)(5)(A) of the Act. 
In this case, given the absence of participating respondents and having 
calculated no margins, we have assigned to Newlife the simple average 
of the margins alleged in the petition, i.e., 105.00 percent. See 
section 735(c)(5)(B) of the Act and Preliminary Determination, 73 FR at 
22329-30.
    We determined in the Preliminary Determination that because 
Polyflex withdrew from the investigation, thus preventing the 
Department from asking additional questions on its separate rate status 
and preventing the Department from verifying its responses, the 
Department has no basis upon which to grant Polyflex a separate rate. 
We received no comments on this denial of a separate rate. Although 
Polyflex remains a mandatory respondent, the Department will continue 
to consider Polyflex part of the PRC-wide entity because it failed to 
demonstrate that it qualifies for a separate rate.

The PRC-Wide Rate

    In the Preliminary Determination, the Department found that certain 
companies did not respond to our requests for information. See 
Preliminary Determination, 73 FR at 22330. We treated these PRC 
producers/exporters as part of the PRC-wide entity because they did not 
demonstrate that they operate free of government control over their 
export activities. Id. In addition, in the Preliminary Determination, 
the Department applied total AFA to Polyflex. We determined, as AFA, 
that Polyflex was not eligible for a separate rate and we are treating 
Polyflex as part of the PRC-wide entity. No additional information was 
placed on the record with respect to any of these companies after the 
Preliminary Determination. Therefore, pursuant to section 776(a)(2)(A) 
of the Act, the Department continues to find that the use of facts 
available is appropriate to determine the PRC-wide rate.
    Section 776(b) of the Act provides that, in selecting from among 
the facts otherwise available, the Department may employ an adverse 
inference if an interested party fails to cooperate by not acting to 
the best of its ability to comply with requests for information. See 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From the Russian 
Federation, 65 FR 5510, 5518 (February 4, 2000). See also ``Statement 
of Administrative Action'' accompanying the URAA, H.R. Rep. No. 103-
316, vol. 1, at 870 (1994). We determine that, because the PRC-wide 
entity did not respond to our request for information, it has failed to 
cooperate to the best of its ability. Therefore, the Department finds 
that, in selecting from among the facts otherwise available, an adverse 
inference is appropriate for the PRC-wide entity.

[[Page 39672]]

    Because we begin with the presumption that all companies within an 
NME country are subject to government control, and because only Newlife 
has overcome that presumption, we are applying a single antidumping 
rate (i.e., the PRC-wide entity rate) to all other exporters of subject 
merchandise from the PRC. Such companies did not demonstrate 
entitlement to a separate rate. See, e.g., Synthetic Indigo From the 
People's Republic of China: Notice of Final Determination of Sales at 
Less Than Fair Value, 65 FR 25706 (May 3, 2000). The PRC-wide entity 
rate applies to all entries of subject merchandise except for entries 
from Newlife.
    In the Preliminary Determination, we assigned to the PRC-wide 
entity the highest margin alleged in the petition, as revised in 
Petitioner's supplemental responses, i.e., 185.28 percent. See 
Preliminary Determination, 73 FR at 22331. We received no comments on 
this rate. For the final determination, we have continued to assign to 
the PRC-wide entity the rate of 185.28 percent.

Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information in using the facts otherwise available, it 
must, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. We have 
interpreted ``corroborate'' to mean that we will, to the extent 
practicable, examine the reliability and relevance of the information 
submitted. See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products 
From Brazil, 65 FR 5554, 5568 (February 4, 2000); see, e.g., Tapered 
Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, 
and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, 
and Components Thereof, From Japan; Preliminary Results of Antidumping 
Duty Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996).
    Because there are no cooperating mandatory respondents, to 
corroborate the 105.00 and 185.28 percent margins used as facts 
available for Newlife and as AFA for the PRC-wide entity, respectively, 
we relied upon our pre-initiation analysis of the adequacy and accuracy 
of the information in the petition. See ``Import Administration AD 
Investigation Initiation Checklist: Raw Flexible Magnets from the 
People's Republic of China,'' (October 11, 2007). During the initiation 
stage, we examined evidence supporting the calculations in the petition 
and the supplemental information provided by Petitioner to determine 
the probative value of the margins alleged in the petition. During our 
pre-initiation analysis, we examined the information used as the basis 
of export price (``EP'') and normal value (``NV'') in the petition, and 
the calculations used to derive the alleged margins. Also during our 
pre-initiation analysis, we examined information from various 
independent sources provided either in the petition or, based on our 
requests, in supplements to the petition, which corroborated key 
elements of the EP and NV calculations. Id. We received no comments as 
to the relevance or probative value of this information. Therefore, for 
the final determination, the Department finds that the rates derived 
from the petition for purposes of initiation have probative value for 
the purpose of being selected as the facts available rate for Newlife 
and the AFA rate assigned to the PRC-wide entity.

Final Determination Margins

    We determine that the following percentage dumping margins exist 
for the POI:

------------------------------------------------------------------------
                                                                Margin
                    Manufacturer/Exporter                      (Percent)
------------------------------------------------------------------------
Guangzhou Newlife Magnet Electricity Co., Ltd.\3\...........      105.00
PRC-wide Entity (including Polyflex)........................      185.28
------------------------------------------------------------------------
\3\ Newlife both manufactures and exports subject merchandise.

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we will 
instruct U.S. Customs and Border Protection (``CBP'') to continue to 
suspend liquidation of all entries of raw flexible magnets from the 
PRC, as described in the ``Scope of Investigation'' section, entered, 
or withdrawn from warehouse, for consumption on or after April 25, 
2008, the date of publication of the Preliminary Determination in the 
Federal Register. We will instruct CBP to require a cash deposit or the 
posting of a bond equal to the weighted-average dumping margin amount 
by which the NV exceeds U.S. price, as follows: (1) The rate for the 
exporter/producer combinations listed in the chart above will be the 
rate we have determined in this final determination; (2) for all PRC 
exporters of subject merchandise which have not received their own 
rate, the cash-deposit rate will be the PRC-wide entity rate; and (3) 
for all non-PRC exporters of subject merchandise which have not 
received their own rate, the cash-deposit rate will be the rate 
applicable to the PRC exporter/producer combination that supplied that 
non-PRC exporter. These suspension-of-liquidation instructions will 
remain in effect until further notice.

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our final determination of 
sales at LTFV. As our final determination is affirmative, in accordance 
with section 735(b)(2) of the Act, within 45 days the ITC will 
determine whether the domestic industry in the United States is 
materially injured, or threatened with material injury, by reason of 
imports or sales (or the likelihood of sales) for importation of the 
subject merchandise. If the ITC determines that material injury or 
threat of material injury does not exist, the proceeding will be 
terminated and all securities posted will be refunded or canceled. If 
the ITC determines that such injury does exist, the Department will 
issue an antidumping duty order directing CBP to assess, upon further 
instruction by the Department, antidumping duties on all imports of the 
subject merchandise entered, or withdrawn from warehouse, for 
consumption on or after the effective date of the suspension of 
liquidation.

Notification Regarding APO

    This notice also serves as a reminder to the parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of return or 
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulations and the 
terms of an APO is a sanctionable violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: July 2, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-15732 Filed 7-9-08; 8:45 am]
BILLING CODE 3510-DS-S