1-Hydroxyethylidene-1, 1-Diphosphonic Acid from India: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 62465-62470 [E8-25026]

Download as PDF Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices 62465 jurisdiction of either agency, or to reduce threats, including from fire or disease, on FS or BLM-administered lands adjacent to or bordering on Indian trust land and Indian communities. The full text of this handbook is available on the World Wide Web at http://www.fs.fed.us./im/directives. Single paper copies are available upon request from the address and telephone numbers listed earlier in this notice as well as from the nearest regional office, the location of which are also available on the Washington Office headquarters homepage on the World Wide Web at http://www.fs.fed.us. Department of Commerce, Economic Development Administration, 2008– 2010 Performance Review Board Membership Department of Commerce, National Telecommunications and Information Administration 2008–2010 Performance Review Board Membership Department of Commerce/Economic Development Administration Department of Commerce/National Telecommunications and Information Administration Dated: October 9, 2008. Charles Myers, Associate Deputy Chief, National Forest System. [FR Doc. E8–25066 Filed 10–17–08; 11:15 am] Dated: October 15, 2008. Deborah Martin, Director, Office of Executive Resources— Operations. [FR Doc. E8–24942 Filed 10–20–08; 8:45 am] Lisa Casias, Director for Financial Management and Deputy Chief Financial Officer (Chairperson). Deborah Jefferson, Director for Human Resources Management. Otto Barry Bird, Chief Counsel for Economic Development. Matthew Crow, Deputy Assistant Secretary for External Affairs. BILLING CODE 3510–BS–P BILLING CODE 3410–11–P DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE Membership of the National Telecommunications and Information Administration Performance Review Board Membership of the Economic Development Administration Performance Review Board Department of Commerce. Notice of Membership on the Economic Development Administration’s Performance Review Board. AGENCY: SUMMARY: In accordance with 5 U.S.C., 4314(c)(4), Department of Commerce (DOC) announce the appointment of persons to serve as members of the Economic Development Administration’s (EDA) Performance Review Board (PRB). The EDA PRB is responsible for reviewing performance ratings, pay adjustments and bonuses of Senior Executive Service (SES) members, Presidential Rank Awards. The appointment of these members will be for a period of twenty-four (24) months. SUMMARY: In accordance with 5 U.S.C. 4314(c)(4), Department of Commerce (DOC) announce the appointment of persons to serve as members of the National Telecommunications and Information Administration’s (NTIA) Performance Review Board (PRB). The NTIA PRB is responsible for reviewing performance ratings, pay adjustments and bonuses of Senior Executive Service (SES) members, and Presidential Rank Awards. The appointment of these members will be for a period of twentyfour (24) months. DATES: Effective Date: The effective date of service of appointees to the National Telecommunications and Information Administration Performance Review Board is upon publication of this notice. FOR FURTHER INFORMATION CONTACT: Deborah Martin, Director, Office of Executive Resources—Operations, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue, NW., Washington, DC 20230, (202) 482–3130. SUPPLEMENTARY INFORMATION: The names, position titles, and type of appointment of the members of the NTIA/PRB are set forth below: AGENCY: ACTION: Effective Date: The effective date of service of appointees to the Economic Development Administration Performance Review Board is upon publication of this notice. FOR FURTHER INFORMATION CONTACT: Deborah Martin, Director, Office of Executive Resources—Operations, Office of Human Resources Management, Office of the Director, 14th and Constitution Avenue, NW., Washington, DC 20230, (202) 482–3600. SUPPLEMENTARY INFORMATION: The names, position titles, and type of appointment of the members of the EDA/PRB are set forth below: mstockstill on PROD1PC66 with NOTICES DATES: VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 Department of Commerce. ACTION: Notice of Membership on the National Telecommunications and Information Administration’s Performance Review Board. PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 Daniel C. Hurley, Director, Communications and Information Infrastructure Assurance Program (Chairperson). Bernadette McGuire-Rivera, Associate Administrator for Telecommunications and Information Applications. Renee Macklin, Chief Information Officer, International Trade Administration. Alan W. Vincent, Associate Administrator for Telecommunications Sciences and Director, Institute for Telecommunication Sciences. Michael J. Crison, Director, Requirements, Planning and Systems Integration Division. Karl B. Nebbia, Associate Administrator for Spectrum Management. Dated: October 15, 2008. Deborah Martin, Director, Office of Executive Resources— Operations. [FR Doc. E8–24943 Filed 10–20–08; 8:45 am] BILLING CODE 3510–BS–P DEPARTMENT OF COMMERCE International Trade Administration (A–533–847) 1–Hydroxyethylidene–1, 1– Diphosphonic Acid from India: 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 1– hydroxyethylidene–1, 1–diphosphonic acid (HEDP) from India 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 margins of sales at LTFV are listed in the ‘‘Preliminary Determination’’ 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 AGENCY: E:\FR\FM\21OCN1.SGM 21OCN1 62466 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices determination and extending 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: October 21, 2008. FOR FURTHER INFORMATION CONTACT: Brian Smith and Gemal Brangman, AD/ CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482–1766 and (202) 482–3773, respectively. SUPPLEMENTARY INFORMATION: mstockstill on PROD1PC66 with NOTICES Background On April 8, 2008, the Department initiated an antidumping duty investigation of HEDP from India. See 1–Hydroxyethylidene–1, 1– Diphosphonic Acid from the Republic of India and the People’s Republic of China: Initiation of Antidumping Duty Investigations, 73 FR 20023 (April 14, 2008) (Initiation Notice). The petitioner in this investigation is Compass Chemical Co. (the Petitioner). The Department set aside a period of time for parties to raise issues regarding product coverage and encouraged all parties to submit comments within 20 calendar days of publication of the Initiation Notice. See Initiation Notice, 73 FR at 20023; see also Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997). On May 12, 2008, the United States International Trade Commission (ITC) preliminarily determined that there is a reasonable indication that imports of HEDP from India are materially injuring the U.S. industry and the ITC notified the Department of its findings. See 1– Hydroxyethylidene–1, 1–Diphosphonic Acid (HEDP) from China and India Investigation Nos. 731–TA–1146–1147 (Preliminary), 73 FR 28507 (May 16, 2008). On May 6, 2008, we selected Aquapharm Chemicals Private Limited (Aquapharm) as the mandatory respondent in this proceeding. See Memorandum from James Maeder, Office Director, to Stephen J. Claeys, Deputy Assistant Secretary, entitled: ‘‘Antidumping Duty Investigation of 1– Hydroxyethylidene–1, 1–Diphosphonic Acid from India—Selection of Respondents for Individual Review,’’ dated May 6, 2008. We subsequently issued the antidumping questionnaire to Aquapharm on May 9, 2008. VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 On June 16, 2008, Aquapharm submitted its response to section A of the questionnaire (i.e., the section involving general information). On July 15, 2008, Aquapharm responded to sections B and C of the questionnaire (i.e., the sections involving sales to the home and U.S. markets, respectively). On July 30, 2008, the petitioner made a timely request pursuant to 19 CFR 351.205(e) for a 50-day postponement of the preliminary determination in this investigation. On August 22, 2008, pursuant to section 733(c)(1)(A) of the Act, the Department postponed the preliminary determination until no later than October 15, 2008. See 1– Hydroxyethylidene–1, 1–Diphosphonic Acid from the Republic of India and the People’s Republic of China: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 73 FR 49646 (August 22, 2008). During August and September 2008, the Department requested additional information from Aquapharm regarding its responses to sections A through C of the questionnaire. Aquapharm provided this information in September and October 2008. On October 1, 2008, Aquapharm requested that in the event of an affirmative preliminary determination in this investigation, the Department: 1) postpone its final determination by 60 days in accordance with 19 CFR 351.210(2)(ii) and 735(a)(2)(A) of the Act; and 2) extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to a six-month period. On October 6, 2008, the petitioner requested that in the event of a negative preliminary determination in this investigation, the Department postpone the final determination by 60 days in accordance with 19 CFR 351.210(b)(2)(i) and section 735(a)(2)(B) of the Act. Postponement of Final Determination and Extension of Provisional Measures Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters, who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. The Department’s regulations, at 19 CFR 351.210(e)(2), require that requests by respondents for postponement of a final determination be accompanied by a PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 request for extension of provisional measures from a four-month period to not more than six months. On October 1, 2008, Aquapharm requested that in the event of an affirmative preliminary determination in this investigation, the Department postpone its final determination by 60 days. At the same time, Aquapharm requested that the Department extend the application of the provisional measures prescribed under 19 CFR 351.210(e)(2) from a four-month period to a six-month period. In accordance with section 733(d) of the Act and 19 CFR 351.210(b), 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 reasons for denial exist, we are granting this 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. Period of Investigation The period of investigation (POI) is January 1, 2007, to December 31, 2007. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition. Scope of Investigation The merchandise covered by this investigation includes all grades of aqueous, acidic (non–neutralized) concentrations of 1–hydroxyethylidene– 1, 1–diphosphonic acid1, also referred to as hydroxethlylidenediphosphonic acid, hydroxyethanediphosphonic acid, acetodiphosphonic acid, and etidronic acid. The CAS (Chemical Abstract Service) registry number for HEDP is 2809–21–4. The merchandise subject to this investigation is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheading 2931.00.9043. It may also enter under HTSUS subheading 2811.19.6090. While HTSUS subheadings are provided for convenience and customs purposes only, the written description of the scope of this investigation is dispositive. Scope Comments In accordance with the preamble to the Department’s regulations (see Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997)), in our Initiation Notice we set aside a period of time for parties to raise issues regarding product coverage, and encouraged all parties to 1C 2H8O7P2 E:\FR\FM\21OCN1.SGM or C(CH3)(OH)(PO3H2)2 21OCN1 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices submit comments within 20 calendar days of publication of the Initiation Notice. No parties submitted scope comments in this proceeding. Fair Value Comparisons To determine whether sales of HEDP from India to the United States were made at LTFV, we compared the export price (EP) or constructed export price (CEP) to normal value (NV), as described in the ‘‘Export Price and Constructed Export Price’’ and ‘‘Normal Value’’ sections of this notice. In accordance with section 777A(d)(1) of the Act, we compared POI weighted– average EPs and CEPs to POI weighted– average NVs. See discussion below. mstockstill on PROD1PC66 with NOTICES U.S. Date of Sale It is the Department’s normal practice to use the date of invoice as the date of sale. The Department’s regulations provide that the Department may use a date other than the date of invoice if it is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale (e.g., price and quantity). See 19 CFR 351.401(i); see also Allied Tube and Conduit Corp. v. United States, 132 F. Supp. 2d 1087, 1090–92 (CIT 2001). Aquapharm reported invoice date as its date of sale for its home market sales during the POI. However for its U.S. sales during the POI, Aquapharm reported either the invoice date, the date of what it claimed was a ‘‘long–term contract,’’ or purchase order date as the date of sale. For its sales of HEDP in drums made to one U.S. customer (hereafter referred to as ‘‘Customer A’’) during the POI and sales of HEDP in bulk form made to the same customer after February 2, 2007, Aquapharm used the date of an email acceptance of its price/quantity offer from the customer (which Aquapharm refers to as a ‘‘long–term contract’’ in its questionnaire responses) as the date of sale, claiming that the essential terms of sale did not change after the email acceptance.2 For its sales of HEDP in 2 The sales process associated with Customer A is as follows: Customer A sends a request for proposal (RFP) to Aquapharm via email for certain projected annual quantities of HEDP. Aquapharm emails its RFP price offer for the stated quantities back to the customer. Aquapharm claims that the terms of sale do not change after the customer has accepted Aquapharm’s offer via email. Customer A requires that Aquapharm maintain inventory in the United States at an unaffiliated warehouse for logistical convenience. Aquapharm issues two invoices for sales made to Customer A: it issues the first invoice upon shipment of the subject merchandise to the unaffiliated U.S. warehouse (this invoice does not go to the U.S. customer) and then issues a corresponding invoice to the customer at the time of delivery of the subject merchandise from the U.S. warehouse to the customer. VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 bulk form made to Customer A before February 2, 2007, Aquapharm based the date of sale on the date of the sales invoice issued at the time the HEDP was shipped from India, because it did not have a ‘‘long–term contract’’ in place with Customer A for HEDP in bulk form before February 2, 2007. For its POI HEDP sales to another U.S. customer (hereafter referred to as ‘‘Customer B’’), Aquapharm used the date of the purchase order from the customer as the date of sale, claiming that the essential terms of sale did not change after receipt of the customer’s purchase order. In this case, our examination of the submitted sample sales documentation relevant to Customer A indicates that the ‘‘long–term contract’’ referred to by Aquapharm is actually an exchange of emails with its customer conveying the RFP, RFP offer and acceptance of the RFP offer. This email exchange is not clear with respect to certain terms of sale (e.g., payment terms), and there is no evidence on the record to suggest that it was binding on the parties. With respect to the submitted sales documentation relevant to Customer B, the purchase order does not appear to establish all essential terms of sale (e.g., payment terms). Moreover, the respondent has not sufficiently demonstrated that material changes to the purchase order and/or ‘‘long–term contract’’ were not possible. In addition, with respect to the sales made to Customer A, the respondent has not sufficiently demonstrated that changes to the material terms of sale between the issuance of the invoice at the time of shipment of the subject merchandise from India (‘‘first invoice’’) and the invoice to the customer were not possible. Therefore, for purposes of the preliminary determination, we have used the date of the sales invoice issued to the U.S. customer as the date of sale for all of the respondent’s POI U.S. sales of HEDP. As discussed above, the terms of the purchase order or ‘‘long–term contract’’ did not appear to be binding on the parties, nor did it appear to establish all essential terms of sale. Furthermore, the respondent has not sufficiently demonstrated its claim that in the normal course of business no Irrespective of its date of sale claims with respect to sales made to Customer A, Aquapharm initially reported all U.S. sales made to Customer A pursuant to invoices issued at the time of shipment from India which fell within the POI, not invoices actually issued to the customer at the time of delivery which fell within the POI. Pursuant to the Department’s request, Aquapharm subsequently revised its U.S. sales reporting to also include any sales of subject merchandise made to Customer A for which the date of the sales invoice issued to the customer fell within the POI. PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 62467 changes to the material terms of sale are possible between the date of ‘‘long–term contract’’ or purchase order, and the date of invoice to the customer. U.S. Sales Type Designation Section 772(a) of the Act defines EP as ‘‘the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States .’’ (Emphasis added.) Section 772(b) defines CEP as ‘‘the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter .’’ (Emphasis added.) Aquapharm characterized its U.S. sales to Customer A as EP sales, and its sales to Customer B as both EP and CEP depending on the sales/distribution channel.3 With respect to its sales to Customer A, Aquapharm claims that because the essential terms of sale are set by it in India on the date of ‘‘long– term contract’’ (or date of ‘‘first invoice’’ in the case of sales of HEDP in bulk form before February 2, 2007) prior to importation of the subject merchandise into the United States, these sales should be classified as EP sales. However, only after the merchandise enters the United States, is placed in an unaffiliated warehouse and is released for delivery to Customer A does Aquapharm issue the sales invoice to Customer A. Given that we have preliminarily determined that the date of the sales invoice issued to the U.S. customer is the appropriate basis for the U.S. date of sale, Aquapharm’s EP sales classification with respect to Customer A no longer holds because the invoice is issued to the customer, and thus the sale is made, after the merchandise is imported into the United States. Therefore, for the preliminary determination, we are treating all of Aquapharm’s U.S. sales to Customer A as CEP sales transactions, consistent with the definition of CEP under section 772(b) of the Act, because the sales were made after importation of the subject merchandise into the United States. 3 We have accepted Aquapharm’s sales type designation for sales made to Customer B for purposes of the preliminary determination. E:\FR\FM\21OCN1.SGM 21OCN1 62468 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices Normal Value mstockstill on PROD1PC66 with NOTICES Export Price and Constructed Export Price In accordance with section 772(a) of the Act, we calculated EP for those sales where the subject merchandise was sold to the first unaffiliated purchaser in the United States prior to importation by the exporter or producer outside the United States. We based EP on the packed price to unaffiliated purchasers in the United States. Where appropriate, we adjusted prices for billing adjustments. We made deductions for movement expenses in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from plant to the port of exportation, foreign inland insurance, foreign brokerage and handling, U.S. brokerage and handling, international freight, U.S. inland freight to customer, marine insurance, and U.S. customs duties (including harbor maintenance fees and merchandise processing fees). Pursuant to section 772(b) of the Act, we calculated CEP for those sales where the subject merchandise was sold in the United States after the date of importation by or for the account of the producer or exporter to a purchaser not affiliated with the producer or exporter. We based CEP on the packed delivered prices to unaffiliated purchasers in the United States. When appropriate, we adjusted prices for billing adjustments. We made deductions for movement expenses, in accordance with section 772(c)(2)(A) of the Act; these included, where appropriate, foreign inland freight from plant to the port of exportation, foreign inland insurance, foreign brokerage and handling, U.S. brokerage and handling, international freight, marine insurance, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), and warehouse expenses. Consistent with the U.S. date of sale determination discussed above, we treated warehouse expenses as pre– sale expenses associated with the movement of the subject merchandise to the U.S. market. In accordance with section 772(d)(1) of the Act and 19 CFR 351.402(b), we deducted those selling expenses associated with economic activities occurring in the United States, including direct selling expenses (i.e., credit expenses, commissions, and bank charges), and indirect selling expenses (including inventory carrying costs). We also deducted from CEP an amount for profit in accordance with sections 772(d)(3) and (f) of the Act. See Calculation Memorandum dated October 15, 2008, for further discussion of the CEP profit calculation. VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 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 (i.e., the aggregate volume of home market sales of the foreign like product is equal to or greater than five percent of the aggregate volume of U.S. sales), we compared Aquapharm’s volume of home market sales of the foreign like product to the volume of U.S. sales of the subject merchandise, in accordance with section 773(a)(1)(C) of the Act. Based on this comparison, we determined that Aquapharm had a viable home market during the POI. Consequently, we based NV on home market sales. B. Level of Trade In accordance with section 773(a)(1)(B) 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 EP or CEP. Pursuant to 19 CFR 351.412(c)(1), the NV LOT is that of the starting–price sales in the comparison market or, when NV is based on constructed value, that of the sales from which we derive selling, general and administrative expenses, and profit. For EP, the U.S. LOT is also the level of the starting– price sale, which is usually from exporter to importer. For CEP, it is the level of the constructed sale from the exporter to the importer. To determine whether NV sales are at a different LOT than EP or CEP sales, we examine stages in the marketing process and selling functions along the chain of distribution between the producer and the unaffiliated customer. See 19 CFR 351.412(c)(2). 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 comparisonmarket sales at the LOT of the export transaction, we make an LOT adjustment under section 773(a)(7)(A) of the Act. Finally, for CEP sales, if the NV level is more remote from the factory than the CEP level and there is no basis for determining whether the difference in levels between NV and CEP affects price comparability, we adjust NV under section 773(a)(7)(B) of the Act (the CEP–offset provision). See Notice of Final Determination of Sales at Less Than Fair Value: Certain Cut–to-Length Carbon Steel Plate from South Africa, 62 FR 61731, 61732 (November 19, 1997). PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 In this investigation, we obtained information from Aquapharm regarding the marketing stages involved in making its reported home market and U.S. sales, including a description of the selling activities performed by the respondent for each channel of distribution. As discussed above in the ‘‘U.S. Date of Sale’’ and ‘‘U.S. Sales Type Designation’’ sections of this notice, for purposes of this preliminary determination, we relied on the sales invoice issued to the U.S. customer for determining the U.S. date of sale and Aquapharm’s U.S. sales reporting requirement. As a result of relying on the sales invoice to the U.S. customer as the basis for determining the date of sale, we also designated all of Aquapharm’s sales to Customer A as CEP sales. Therefore, we have taken this sales reclassification determination into account in our preliminary LOT analysis below. Aquapharm had CEP sales in the U.S. market through the following channel of distribution: sales through an unaffiliated U.S. selling agent to two unaffiliated U.S. distributors of HEDP maintained in inventory at an unaffiliated U.S. warehouse (Channel 1). In addition, Aquapharm had EP sales in the U.S. market through the following channel of distribution: direct sales/ shipments to an unaffiliated U.S. distributor (Channel 2). We examined the selling activities performed for both U.S. sales channels and found that Aquapharm performed the following selling functions for each channel: sales forecasting, order input/ processing, direct sales personnel, packing, freight and delivery services, inventory maintenance, technical assistance, warranty service, and after– sales service. These selling activities can be generally grouped into four selling function categories for analysis: 1) sales and marketing; 2) freight and delivery; 3) warehousing and inventory; and 4) warranty and technical support. Accordingly, based on the four selling function categories, we find that Aquapharm performed sales and marketing, freight and delivery services, and warranty and technical services for U.S. sales. Although Aquapharm performed additional freight and delivery functions (such as repacking) and warehousing functions for its sales through Channel 1, we did not find these differences to be material selling function distinctions which are significant enough to warrant a separate LOT in the U.S. market. Therefore, we preliminarily determine that there is one LOT in the U.S. market because Aquapharm performed essentially the same selling functions for all U.S. sales. E:\FR\FM\21OCN1.SGM 21OCN1 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices mstockstill on PROD1PC66 with NOTICES With respect to the home market, Aquapharm made sales through the following channels of distribution: 1) sales to unaffiliated end–users (Channel 1); and 2) sales to unaffiliated distributors (Channel 2). We examined the selling activities performed for each home market sales channel and found that Aquapharm performed the following selling functions for sales made through both channels: sales forecasting, order input/processing, advertising, direct sales personnel, sales/marketing support, market research, packing, freight and delivery services, inventory maintenance, technical assistance, and warranty service. Accordingly, based on the four selling function categories, we find that Aquapharm performed sales and marketing, freight and delivery services, inventory maintenance and warehousing, and warranty and technical services in the home market. Moreover, we did not find any significant distinctions between the selling functions Aquapharm performed in each home market channel to warrant a separate LOT in the home market. Therefore, we preliminarily determine that there is one LOT in the home market because Aquapharm performed essentially the same selling functions for all home market sales. Finally, we compared the U.S. LOT to the home market LOT and found that the selling functions performed for home market sales are either performed at the same degree of intensity as, or vary only slightly from, the selling functions performed for U.S. sales. Specifically, we found that with respect to the four selling function categories, there are only slight differences in the level of intensity between the home and U.S. markets which are not a sufficient basis to determine separate LOTs between the two markets. Therefore, we find that the single NV LOT and single U.S. LOT are the same. Accordingly, we matched U.S. and home market sales at the same LOT. C. Calculation of Normal Value Based on Comparison Market Prices We based NV for Aquapharm on delivered prices to unaffiliated customers in the home market. We made deductions, where appropriate, from the starting price for inland freight expenses and inland insurance expenses, under section 773(a)(6)(B)(ii) of the Act. Where appropriate, we also added freight and insurance revenue to the starting price. Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 351.410(b), we made, where appropriate, circumstance–of-sale adjustments for VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 imputed credit expenses and bank charges. We also made adjustments in accordance with 19 CFR 351.410(e) for indirect selling expenses incurred on comparison market or U.S. sales where commissions were granted on sales in one market but not the other. Specifically, for comparisons to CEP, we made an adjustment to NV for home market indirect selling expenses and inventory carry costs to offset U.S. commissions. We also deducted home market packing costs and added U.S. packing costs, in accordance with sections 773(a)(6)(A) and (B) of the Act. 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. Verification As provided in section 782(i) of the Act, we intend to verify all information relied upon in making our final determination for Aquapharm. 62469 section 776 of the Act. Aquapharm is the only respondent in this investigation for which the Department calculated a company–specific rate. Therefore, for purposes of determining the ‘‘All Others’’ rate and pursuant to section 735(c)(5)(4) of the Act, we are using the weighted–average dumping margin calculated for Aquapharm, as referenced above. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils From Italy, 64 FR 30750, 30755 (June 8, 1999); Final Affirmative Countervailing Duty Determination: Pure Magnesium From Israel, 66 FR 49351, 49353 (September 27, 2001); and Notice of Final Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from Indonesia, 72 FR 60636 (October 25, 2007). Disclosure We will disclose the calculations performed in connection with our preliminary determination 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 The weighted–average dumping Department’s preliminary affirmative margins in the preliminary determination. If the Department’s final determination are as follows: determination is affirmative, pursuant to Weighted–Average section 735(b)(2) of the Act, the ITC will Manufacturer/Exporter Margin (percent) determine before the later of 120 days after the date of this preliminary Aquapharm Chemicals determination or 45 days after our final Pvt. Ltd. ..................... 3.91 determination whether imports of HEDP All Others ...................... 3.91 from India are materially injuring, or threaten material injury to, the U.S. Suspension of Liquidation industry. Because we have postponed In accordance with section 733(d)(2) the deadline for our final determination of the Act, we are directing CBP to to 135 days from the date of the suspend liquidation of all entries of publication of this preliminary HEDP from India as described in the determination, the ITC will make its ‘‘Scope of Investigation’’ section that are final determination within 45 days of entered, or withdrawn from warehouse, our final determination. for consumption on or after the date of publication of this notice in the Federal Public Comment Interested parties are invited to Register. We are also instructing CBP to comment on the preliminary require a cash deposit or the posting of determination. Interested parties may a bond equal to the weighted–average submit case briefs to the Department no dumping margins, as indicated above. later than seven days after the date of These suspension–of-liquidation the issuance of the verification report in instructions will remain in effect until this proceeding. Rebuttal briefs, the further notice. content of which is limited to the issues All Others Rate raised in the case briefs, must be filed Section 735(c)(5)(4) of the Act within five days from the deadline date provides that the estimated ‘‘All Others’’ for the submission of case briefs. A list rate shall be an amount equal to the of authorities used, a table of contents, weighted average of the estimated and an executive summary of issues weighted–average dumping margins should accompany any briefs submitted established for exporters and producers to the Department. Executive summaries individually investigated, excluding any should be limited to five pages total, zero or de minimis margins, and any including footnotes. Further, we request margins determined entirely under that parties submitting briefs and Preliminary Determination PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\21OCN1.SGM 21OCN1 62470 Federal Register / Vol. 73, No. 204 / Tuesday, October 21, 2008 / Notices 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 timely 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 timely request for a hearing is made in this investigation, we intend to hold the hearing 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. At the hearing, oral presentations will be limited to issues raised in the briefs. This determination is issued and published pursuant to sections 733(f) and 777(i)(1) of the Act. Dated: October 15, 2008. David M. Spooner, Assistant Secretary for Import Administration. [FR Doc. E8–25026 Filed 10–20–08; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration [A–570–934] 1-Hydroxyethylidene-1,1-Diphosphonic Acid From the People’s Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination Import Administration, International Trade Administration, Department of Commerce. DATES: Effective Date: October 21, 2008. SUMMARY: The Department of Commerce (the ‘‘Department’’) preliminarily determines that 1-hydroxyethylidene-1, 1-diphosphonic acid (‘‘HEDP’’) 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 733 of mstockstill on PROD1PC66 with NOTICES AGENCY: VerDate Aug<31>2005 17:06 Oct 20, 2008 Jkt 217001 the Tariff Act of 1930, as amended (the ‘‘Act’’). The estimated dumping margins are shown in the ‘‘Preliminary Determination Margins’’ section of this notice. FOR FURTHER INFORMATION CONTACT: Maisha Cryor or Shawn Higgins, 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) 482–5831 and (202) 482–0679, respectively. SUPPLEMENTARY INFORMATION: Background On March 19, 2008, the Department received a petition concerning imports of HEDP from the PRC filed in proper form by Compass Chemical International LLC (‘‘Petitioner’’). See ‘‘Request for the Imposition of Antidumping Duties on Imports of 1Hydroxyethylidene-1, 1-Diphosphonic Acid from the People’s Republic of China and Republic of India,’’ dated March 19, 2008 (‘‘Petition’’). The Department initiated an antidumping duty investigation of HEDP from the PRC on April 8, 2008. See 1Hydroxyethylidene-1, 1-Diphosphonic Acid From the Republic of India and the People’s Republic of China: Initiation of Antidumping Duty Investigations, 73 FR 20023 (April 14, 2008) (‘‘Initiation Notice’’). On April 9, 2008, the Department requested quantity and value (‘‘Q&V’’) information from the 10 companies that are identified in the Petition as potential producers or exporters of HEDP from the PRC. See Exhibit AD–3 of the Petition. The Department received timely responses to its Q&V questionnaire from the following companies: Changzhou Wujin Fine Chemical Factory Co., Ltd. (‘‘Wujin Fine Chemical’’), Changzhou Kewei Fine Chemical Factory (‘‘Kewei’’), BWA Water Additives U.S. LLC (‘‘BWA’’), Nanjing University of Chemical Technology Changzhou Wujin Water Quality Stabilizer Factory Ltd. (‘‘Wujin Water’’), and Jiangsu Jianghai Chemical Group Co., Ltd (‘‘Jiangsu Jianghai’’).1 Six companies to which the Department sent the Q&V questionnaire received the questionnaire but did not respond. These non-responsive companies were Kelien Chemical Co., Ltd., Cathay Pigments/Advanced Chemical Ltd., 1 Because Jiangsu Jianghai was not identified in the Petition as a potential producer or exporter of HEDP from the PRC, the Department did not send Jiangsu a Q&V questionnaire publicly available on our Web site for producers and exporters of HEDP from the PRC that were not named in the Petition. PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 Jiangyin Boxin Chemical Co., Ltd., Changzhou Kejia Chemical Co., Ltd., Shandong Taihe Water Treatment Co., Ltd., and Hebei Fuhui Water Treatment Co., Ltd. (‘‘Non-Responsive Companies’’). On May 2, 2008, the International Trade Commission (‘‘ITC’’) preliminarily determined that there is a reasonable indication that an industry in the United States is materially injured by reason of imports of HEDP from the PRC. See 1-Hydroxyethylidene1, 1-Diphosphonic Acid From China and India, Investigation Nos. 731-TA– 1146 and 731–TA–1147 (Preliminary), 73 FR 28507 (May 16, 2008). On May 30, 2008, the Department selected Wujin Water and Kewei as mandatory respondents and issued antidumping questionnaires to the companies. See Memorandum regarding ‘‘Selection of Respondents in the Antidumping Investigation of 1Hydroxyethylidene, 1-Diphosphonic Acid from the People’s Republic of China,’’ dated May 30, 2008 (‘‘Respondent Selection Memorandum’’). See also letter regarding ‘‘Public Treatment of BWA’s Supplier,’’ dated April 14, 2008. Wujin Water submitted timely responses to the Department’s antidumping questionnaire on June 23, 2008, and July 25, 2008. On June 10, 2008, the Department received separate-rate applications from Jiangsu Jianghai, Wujin Fine Chemical, and Kewei. On June 25, 2008, Kewei notified the Department that it decided to no longer participate in this investigation, and did not intend to submit responses to the Department’s antidumping questionnaire. See memorandum regarding ‘‘Phone Conversation with Counsel to Changzhou Kewei Fine Chemical Factory Co., Ltd.,’’ dated June 30, 2008 (‘‘Kewei Withdrawal Memorandum’’). The Department issued supplemental questionnaires to, and received responses from, Wujin Water, Wujin Fine Chemical, and Jiangsu Jianghai from June through October 2008. Petitioner submitted comments to the Department regarding Wujin Water’s responses to sections C and D of the antidumping questionnaire in August and September 2008. On June 17, 2008, the Department released a memorandum to interested parties which listed potential surrogate countries and invited interested parties to comment on surrogate country and surrogate value selection. From June through September 2008, Petitioner and Wujin Water submitted comments on the appropriate surrogate country and surrogate values. E:\FR\FM\21OCN1.SGM 21OCN1

Agencies

[Federal Register Volume 73, Number 204 (Tuesday, October 21, 2008)]
[Notices]
[Pages 62465-62470]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25026]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

(A-533-847)


1-Hydroxyethylidene-1, 1-Diphosphonic Acid from India: 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 1-hydroxyethylidene-1, 1-diphosphonic acid (HEDP) from 
India 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 margins of sales at LTFV 
are listed in the ``Preliminary Determination'' 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

[[Page 62466]]

determination and extending 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: October 21, 2008.

FOR FURTHER INFORMATION CONTACT: Brian Smith and Gemal Brangman, AD/CVD 
Operations, Office 2, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482-1766 
and (202) 482-3773, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On April 8, 2008, the Department initiated an antidumping duty 
investigation of HEDP from India. See 1-Hydroxyethylidene-1, 1-
Diphosphonic Acid from the Republic of India and the People's Republic 
of China: Initiation of Antidumping Duty Investigations, 73 FR 20023 
(April 14, 2008) (Initiation Notice). The petitioner in this 
investigation is Compass Chemical Co. (the Petitioner).
    The Department set aside a period of time for parties to raise 
issues regarding product coverage and encouraged all parties to submit 
comments within 20 calendar days of publication of the Initiation 
Notice. See Initiation Notice, 73 FR at 20023; see also Antidumping 
Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 
1997).
    On May 12, 2008, the United States International Trade Commission 
(ITC) preliminarily determined that there is a reasonable indication 
that imports of HEDP from India are materially injuring the U.S. 
industry and the ITC notified the Department of its findings. See 1-
Hydroxyethylidene-1, 1-Diphosphonic Acid (HEDP) from China and India 
Investigation Nos. 731-TA-1146-1147 (Preliminary), 73 FR 28507 (May 16, 
2008).
    On May 6, 2008, we selected Aquapharm Chemicals Private Limited 
(Aquapharm) as the mandatory respondent in this proceeding. See 
Memorandum from James Maeder, Office Director, to Stephen J. Claeys, 
Deputy Assistant Secretary, entitled: ``Antidumping Duty Investigation 
of 1-Hydroxyethylidene-1, 1-Diphosphonic Acid from India--Selection of 
Respondents for Individual Review,'' dated May 6, 2008. We subsequently 
issued the antidumping questionnaire to Aquapharm on May 9, 2008.
    On June 16, 2008, Aquapharm submitted its response to section A of 
the questionnaire (i.e., the section involving general information). On 
July 15, 2008, Aquapharm responded to sections B and C of the 
questionnaire (i.e., the sections involving sales to the home and U.S. 
markets, respectively).
    On July 30, 2008, the petitioner made a timely request pursuant to 
19 CFR 351.205(e) for a 50-day postponement of the preliminary 
determination in this investigation. On August 22, 2008, pursuant to 
section 733(c)(1)(A) of the Act, the Department postponed the 
preliminary determination until no later than October 15, 2008. See 1-
Hydroxyethylidene-1, 1-Diphosphonic Acid from the Republic of India and 
the People's Republic of China: Postponement of Preliminary 
Determinations of Antidumping Duty Investigations, 73 FR 49646 (August 
22, 2008).
    During August and September 2008, the Department requested 
additional information from Aquapharm regarding its responses to 
sections A through C of the questionnaire. Aquapharm provided this 
information in September and October 2008.
    On October 1, 2008, Aquapharm requested that in the event of an 
affirmative preliminary determination in this investigation, the 
Department: 1) postpone its final determination by 60 days in 
accordance with 19 CFR 351.210(2)(ii) and 735(a)(2)(A) of the Act; and 
2) extend the application of the provisional measures prescribed under 
19 CFR 351.210(e)(2) from a four-month period to a six-month period.
    On October 6, 2008, the petitioner requested that in the event of a 
negative preliminary determination in this investigation, the 
Department postpone the final determination by 60 days in accordance 
with 19 CFR 351.210(b)(2)(i) and section 735(a)(2)(B) of the Act.

Postponement of Final Determination and Extension of Provisional 
Measures

    Section 735(a)(2) of the Act provides that a final determination 
may be postponed until not later than 135 days after the date of the 
publication of the preliminary determination if, in the event of an 
affirmative preliminary determination, a request for such postponement 
is made by exporters, who account for a significant proportion of 
exports of the subject merchandise, or in the event of a negative 
preliminary determination, a request for such postponement is made by 
the petitioner. The Department's regulations, at 19 CFR 351.210(e)(2), 
require that requests by respondents for postponement of a final 
determination be accompanied by a request for extension of provisional 
measures from a four-month period to not more than six months.
    On October 1, 2008, Aquapharm requested that in the event of an 
affirmative preliminary determination in this investigation, the 
Department postpone its final determination by 60 days. At the same 
time, Aquapharm requested that the Department extend the application of 
the provisional measures prescribed under 19 CFR 351.210(e)(2) from a 
four-month period to a six-month period. In accordance with section 
733(d) of the Act and 19 CFR 351.210(b), 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 reasons for denial exist, we are granting this 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.

Period of Investigation

    The period of investigation (POI) is January 1, 2007, to December 
31, 2007. This period corresponds to the four most recent fiscal 
quarters prior to the month of the filing of the petition.

Scope of Investigation

    The merchandise covered by this investigation includes all grades 
of aqueous, acidic (non-neutralized) concentrations of 1-
hydroxyethylidene-1, 1-diphosphonic acid\1\, also referred to as 
hydroxethlylidenediphosphonic acid, hydroxyethanediphosphonic acid, 
acetodiphosphonic acid, and etidronic acid. The CAS (Chemical Abstract 
Service) registry number for HEDP is 2809-21-4. The merchandise subject 
to this investigation is currently classified in the Harmonized Tariff 
Schedule of the United States (HTSUS) at subheading 2931.00.9043. It 
may also enter under HTSUS subheading 2811.19.6090. While HTSUS 
subheadings are provided for convenience and customs purposes only, the 
written description of the scope of this investigation is dispositive.
---------------------------------------------------------------------------

    \1\ C[bdi2]H[bdi8]O[bdi7]P[bdi2] or 
C(CH[bdi3])(OH)(PO[bdi3]H[bdi2])[bdi2]
---------------------------------------------------------------------------

Scope Comments

    In accordance with the preamble to the Department's regulations 
(see Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 
27296, 27323 (May 19, 1997)), in our Initiation Notice we set aside a 
period of time for parties to raise issues regarding product coverage, 
and encouraged all parties to

[[Page 62467]]

submit comments within 20 calendar days of publication of the 
Initiation Notice. No parties submitted scope comments in this 
proceeding.

Fair Value Comparisons

    To determine whether sales of HEDP from India to the United States 
were made at LTFV, we compared the export price (EP) or constructed 
export price (CEP) to normal value (NV), as described in the ``Export 
Price and Constructed Export Price'' and ``Normal Value'' sections of 
this notice. In accordance with section 777A(d)(1) of the Act, we 
compared POI weighted-average EPs and CEPs to POI weighted-average NVs. 
See discussion below.

U.S. Date of Sale

    It is the Department's normal practice to use the date of invoice 
as the date of sale. The Department's regulations provide that the 
Department may use a date other than the date of invoice if it is 
satisfied that a different date better reflects the date on which the 
exporter or producer establishes the material terms of sale (e.g., 
price and quantity). See 19 CFR 351.401(i); see also Allied Tube and 
Conduit Corp. v. United States, 132 F. Supp. 2d 1087, 1090-92 (CIT 
2001). Aquapharm reported invoice date as its date of sale for its home 
market sales during the POI. However for its U.S. sales during the POI, 
Aquapharm reported either the invoice date, the date of what it claimed 
was a ``long-term contract,'' or purchase order date as the date of 
sale. For its sales of HEDP in drums made to one U.S. customer 
(hereafter referred to as ``Customer A'') during the POI and sales of 
HEDP in bulk form made to the same customer after February 2, 2007, 
Aquapharm used the date of an email acceptance of its price/quantity 
offer from the customer (which Aquapharm refers to as a ``long-term 
contract'' in its questionnaire responses) as the date of sale, 
claiming that the essential terms of sale did not change after the 
email acceptance.\2\ For its sales of HEDP in bulk form made to 
Customer A before February 2, 2007, Aquapharm based the date of sale on 
the date of the sales invoice issued at the time the HEDP was shipped 
from India, because it did not have a ``long-term contract'' in place 
with Customer A for HEDP in bulk form before February 2, 2007. For its 
POI HEDP sales to another U.S. customer (hereafter referred to as 
``Customer B''), Aquapharm used the date of the purchase order from the 
customer as the date of sale, claiming that the essential terms of sale 
did not change after receipt of the customer's purchase order.
---------------------------------------------------------------------------

    \2\ The sales process associated with Customer A is as follows: 
Customer A sends a request for proposal (RFP) to Aquapharm via email 
for certain projected annual quantities of HEDP. Aquapharm emails 
its RFP price offer for the stated quantities back to the customer. 
Aquapharm claims that the terms of sale do not change after the 
customer has accepted Aquapharm's offer via email. Customer A 
requires that Aquapharm maintain inventory in the United States at 
an unaffiliated warehouse for logistical convenience. Aquapharm 
issues two invoices for sales made to Customer A: it issues the 
first invoice upon shipment of the subject merchandise to the 
unaffiliated U.S. warehouse (this invoice does not go to the U.S. 
customer) and then issues a corresponding invoice to the customer at 
the time of delivery of the subject merchandise from the U.S. 
warehouse to the customer. Irrespective of its date of sale claims 
with respect to sales made to Customer A, Aquapharm initially 
reported all U.S. sales made to Customer A pursuant to invoices 
issued at the time of shipment from India which fell within the POI, 
not invoices actually issued to the customer at the time of delivery 
which fell within the POI. Pursuant to the Department's request, 
Aquapharm subsequently revised its U.S. sales reporting to also 
include any sales of subject merchandise made to Customer A for 
which the date of the sales invoice issued to the customer fell 
within the POI.
---------------------------------------------------------------------------

    In this case, our examination of the submitted sample sales 
documentation relevant to Customer A indicates that the ``long-term 
contract'' referred to by Aquapharm is actually an exchange of emails 
with its customer conveying the RFP, RFP offer and acceptance of the 
RFP offer. This email exchange is not clear with respect to certain 
terms of sale (e.g., payment terms), and there is no evidence on the 
record to suggest that it was binding on the parties. With respect to 
the submitted sales documentation relevant to Customer B, the purchase 
order does not appear to establish all essential terms of sale (e.g., 
payment terms). Moreover, the respondent has not sufficiently 
demonstrated that material changes to the purchase order and/or ``long-
term contract'' were not possible. In addition, with respect to the 
sales made to Customer A, the respondent has not sufficiently 
demonstrated that changes to the material terms of sale between the 
issuance of the invoice at the time of shipment of the subject 
merchandise from India (``first invoice'') and the invoice to the 
customer were not possible.
    Therefore, for purposes of the preliminary determination, we have 
used the date of the sales invoice issued to the U.S. customer as the 
date of sale for all of the respondent's POI U.S. sales of HEDP. As 
discussed above, the terms of the purchase order or ``long-term 
contract'' did not appear to be binding on the parties, nor did it 
appear to establish all essential terms of sale. Furthermore, the 
respondent has not sufficiently demonstrated its claim that in the 
normal course of business no changes to the material terms of sale are 
possible between the date of ``long-term contract'' or purchase order, 
and the date of invoice to the customer.

U.S. Sales Type Designation

    Section 772(a) of the Act defines EP as ``the price at which the 
subject merchandise is first sold (or agreed to be sold) before the 
date of importation by the producer or exporter of the subject 
merchandise outside the United States to an unaffiliated purchaser in 
the United States or to an unaffiliated purchaser for exportation to 
the United States .'' (Emphasis added.) Section 772(b) defines CEP as 
``the price at which the subject merchandise is first sold (or agreed 
to be sold) in the United States before or after the date of 
importation by or for the account of the producer or exporter of such 
merchandise or by a seller affiliated with the producer or exporter, to 
a purchaser not affiliated with the producer or exporter .'' (Emphasis 
added.)
    Aquapharm characterized its U.S. sales to Customer A as EP sales, 
and its sales to Customer B as both EP and CEP depending on the sales/
distribution channel.\3\ With respect to its sales to Customer A, 
Aquapharm claims that because the essential terms of sale are set by it 
in India on the date of ``long-term contract'' (or date of ``first 
invoice'' in the case of sales of HEDP in bulk form before February 2, 
2007) prior to importation of the subject merchandise into the United 
States, these sales should be classified as EP sales. However, only 
after the merchandise enters the United States, is placed in an 
unaffiliated warehouse and is released for delivery to Customer A does 
Aquapharm issue the sales invoice to Customer A.
---------------------------------------------------------------------------

    \3\ We have accepted Aquapharm's sales type designation for 
sales made to Customer B for purposes of the preliminary 
determination.
---------------------------------------------------------------------------

    Given that we have preliminarily determined that the date of the 
sales invoice issued to the U.S. customer is the appropriate basis for 
the U.S. date of sale, Aquapharm's EP sales classification with respect 
to Customer A no longer holds because the invoice is issued to the 
customer, and thus the sale is made, after the merchandise is imported 
into the United States. Therefore, for the preliminary determination, 
we are treating all of Aquapharm's U.S. sales to Customer A as CEP 
sales transactions, consistent with the definition of CEP under section 
772(b) of the Act, because the sales were made after importation of the 
subject merchandise into the United States.

[[Page 62468]]

Export Price and Constructed Export Price

    In accordance with section 772(a) of the Act, we calculated EP for 
those sales where the subject merchandise was sold to the first 
unaffiliated purchaser in the United States prior to importation by the 
exporter or producer outside the United States. We based EP on the 
packed price to unaffiliated purchasers in the United States. Where 
appropriate, we adjusted prices for billing adjustments. We made 
deductions for movement expenses in accordance with section 
772(c)(2)(A) of the Act; these included, where appropriate, foreign 
inland freight from plant to the port of exportation, foreign inland 
insurance, foreign brokerage and handling, U.S. brokerage and handling, 
international freight, U.S. inland freight to customer, marine 
insurance, and U.S. customs duties (including harbor maintenance fees 
and merchandise processing fees).
    Pursuant to section 772(b) of the Act, we calculated CEP for those 
sales where the subject merchandise was sold in the United States after 
the date of importation by or for the account of the producer or 
exporter to a purchaser not affiliated with the producer or exporter.
    We based CEP on the packed delivered prices to unaffiliated 
purchasers in the United States. When appropriate, we adjusted prices 
for billing adjustments. We made deductions for movement expenses, in 
accordance with section 772(c)(2)(A) of the Act; these included, where 
appropriate, foreign inland freight from plant to the port of 
exportation, foreign inland insurance, foreign brokerage and handling, 
U.S. brokerage and handling, international freight, marine insurance, 
U.S. customs duties (including harbor maintenance fees and merchandise 
processing fees), and warehouse expenses. Consistent with the U.S. date 
of sale determination discussed above, we treated warehouse expenses as 
pre-sale expenses associated with the movement of the subject 
merchandise to the U.S. market. In accordance with section 772(d)(1) of 
the Act and 19 CFR 351.402(b), we deducted those selling expenses 
associated with economic activities occurring in the United States, 
including direct selling expenses (i.e., credit expenses, commissions, 
and bank charges), and indirect selling expenses (including inventory 
carrying costs). We also deducted from CEP an amount for profit in 
accordance with sections 772(d)(3) and (f) of the Act. See Calculation 
Memorandum dated October 15, 2008, for further discussion of the CEP 
profit calculation.

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 (i.e., the 
aggregate volume of home market sales of the foreign like product is 
equal to or greater than five percent of the aggregate volume of U.S. 
sales), we compared Aquapharm's volume of home market sales of the 
foreign like product to the volume of U.S. sales of the subject 
merchandise, in accordance with section 773(a)(1)(C) of the Act. Based 
on this comparison, we determined that Aquapharm had a viable home 
market during the POI. Consequently, we based NV on home market sales.
B. Level of Trade
    In accordance with section 773(a)(1)(B) 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 EP or CEP. Pursuant to 19 CFR 
351.412(c)(1), the NV LOT is that of the starting-price sales in the 
comparison market or, when NV is based on constructed value, that of 
the sales from which we derive selling, general and administrative 
expenses, and profit. For EP, the U.S. LOT is also the level of the 
starting-price sale, which is usually from exporter to importer. For 
CEP, it is the level of the constructed sale from the exporter to the 
importer.
    To determine whether NV sales are at a different LOT than EP or CEP 
sales, we examine stages in the marketing process and selling functions 
along the chain of distribution between the producer and the 
unaffiliated customer. See 19 CFR 351.412(c)(2). 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. Finally, for CEP 
sales, if the NV level is more remote from the factory than the CEP 
level and there is no basis for determining whether the difference in 
levels between NV and CEP affects price comparability, we adjust NV 
under section 773(a)(7)(B) of the Act (the CEP-offset provision). See 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Cut-to-Length Carbon Steel Plate from South Africa, 62 FR 61731, 61732 
(November 19, 1997).
    In this investigation, we obtained information from Aquapharm 
regarding the marketing stages involved in making its reported home 
market and U.S. sales, including a description of the selling 
activities performed by the respondent for each channel of 
distribution.
    As discussed above in the ``U.S. Date of Sale'' and ``U.S. Sales 
Type Designation'' sections of this notice, for purposes of this 
preliminary determination, we relied on the sales invoice issued to the 
U.S. customer for determining the U.S. date of sale and Aquapharm's 
U.S. sales reporting requirement. As a result of relying on the sales 
invoice to the U.S. customer as the basis for determining the date of 
sale, we also designated all of Aquapharm's sales to Customer A as CEP 
sales. Therefore, we have taken this sales reclassification 
determination into account in our preliminary LOT analysis below.
    Aquapharm had CEP sales in the U.S. market through the following 
channel of distribution: sales through an unaffiliated U.S. selling 
agent to two unaffiliated U.S. distributors of HEDP maintained in 
inventory at an unaffiliated U.S. warehouse (Channel 1). In addition, 
Aquapharm had EP sales in the U.S. market through the following channel 
of distribution: direct sales/shipments to an unaffiliated U.S. 
distributor (Channel 2).
    We examined the selling activities performed for both U.S. sales 
channels and found that Aquapharm performed the following selling 
functions for each channel: sales forecasting, order input/processing, 
direct sales personnel, packing, freight and delivery services, 
inventory maintenance, technical assistance, warranty service, and 
after-sales service. These selling activities can be generally grouped 
into four selling function categories for analysis: 1) sales and 
marketing; 2) freight and delivery; 3) warehousing and inventory; and 
4) warranty and technical support. Accordingly, based on the four 
selling function categories, we find that Aquapharm performed sales and 
marketing, freight and delivery services, and warranty and technical 
services for U.S. sales. Although Aquapharm performed additional 
freight and delivery functions (such as repacking) and warehousing 
functions for its sales through Channel 1, we did not find these 
differences to be material selling function distinctions which are 
significant enough to warrant a separate LOT in the U.S. market. 
Therefore, we preliminarily determine that there is one LOT in the U.S. 
market because Aquapharm performed essentially the same selling 
functions for all U.S. sales.

[[Page 62469]]

    With respect to the home market, Aquapharm made sales through the 
following channels of distribution: 1) sales to unaffiliated end-users 
(Channel 1); and 2) sales to unaffiliated distributors (Channel 2). We 
examined the selling activities performed for each home market sales 
channel and found that Aquapharm performed the following selling 
functions for sales made through both channels: sales forecasting, 
order input/processing, advertising, direct sales personnel, sales/
marketing support, market research, packing, freight and delivery 
services, inventory maintenance, technical assistance, and warranty 
service. Accordingly, based on the four selling function categories, we 
find that Aquapharm performed sales and marketing, freight and delivery 
services, inventory maintenance and warehousing, and warranty and 
technical services in the home market. Moreover, we did not find any 
significant distinctions between the selling functions Aquapharm 
performed in each home market channel to warrant a separate LOT in the 
home market. Therefore, we preliminarily determine that there is one 
LOT in the home market because Aquapharm performed essentially the same 
selling functions for all home market sales.
    Finally, we compared the U.S. LOT to the home market LOT and found 
that the selling functions performed for home market sales are either 
performed at the same degree of intensity as, or vary only slightly 
from, the selling functions performed for U.S. sales. Specifically, we 
found that with respect to the four selling function categories, there 
are only slight differences in the level of intensity between the home 
and U.S. markets which are not a sufficient basis to determine separate 
LOTs between the two markets. Therefore, we find that the single NV LOT 
and single U.S. LOT are the same. Accordingly, we matched U.S. and home 
market sales at the same LOT.
C. Calculation of Normal Value Based on Comparison Market Prices
    We based NV for Aquapharm on delivered prices to unaffiliated 
customers in the home market. We made deductions, where appropriate, 
from the starting price for inland freight expenses and inland 
insurance expenses, under section 773(a)(6)(B)(ii) of the Act. Where 
appropriate, we also added freight and insurance revenue to the 
starting price.
    Pursuant to section 773(a)(6)(C)(iii) of the Act and 19 CFR 
351.410(b), we made, where appropriate, circumstance-of-sale 
adjustments for imputed credit expenses and bank charges. We also made 
adjustments in accordance with 19 CFR 351.410(e) for indirect selling 
expenses incurred on comparison market or U.S. sales where commissions 
were granted on sales in one market but not the other. Specifically, 
for comparisons to CEP, we made an adjustment to NV for home market 
indirect selling expenses and inventory carry costs to offset U.S. 
commissions. We also deducted home market packing costs and added U.S. 
packing costs, in accordance with sections 773(a)(6)(A) and (B) of the 
Act.

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.

Verification

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

Preliminary Determination

    The weighted-average dumping margins in the preliminary 
determination are as follows:

------------------------------------------------------------------------
                                                       Weighted-Average
                Manufacturer/Exporter                  Margin (percent)
------------------------------------------------------------------------
Aquapharm Chemicals Pvt. Ltd........................                3.91
All Others..........................................                3.91
------------------------------------------------------------------------

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
CBP to suspend liquidation of all entries of HEDP from India as 
described in the ``Scope of Investigation'' section 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 margins, as indicated above. 
These suspension-of-liquidation instructions will remain in effect 
until further notice.

All Others Rate

    Section 735(c)(5)(4) of the Act provides that the estimated ``All 
Others'' rate shall be an amount equal to the weighted average of the 
estimated weighted-average dumping margins established for exporters 
and producers individually investigated, excluding any zero or de 
minimis margins, and any margins determined entirely under section 776 
of the Act. Aquapharm is the only respondent in this investigation for 
which the Department calculated a company-specific rate. Therefore, for 
purposes of determining the ``All Others'' rate and pursuant to section 
735(c)(5)(4) of the Act, we are using the weighted-average dumping 
margin calculated for Aquapharm, as referenced above. See, e.g., Notice 
of Final Determination of Sales at Less Than Fair Value: Stainless 
Steel Sheet and Strip in Coils From Italy, 64 FR 30750, 30755 (June 8, 
1999); Final Affirmative Countervailing Duty Determination: Pure 
Magnesium From Israel, 66 FR 49351, 49353 (September 27, 2001); and 
Notice of Final Determination of Sales at Less Than Fair Value: Coated 
Free Sheet Paper from Indonesia, 72 FR 60636 (October 25, 2007).

Disclosure

    We will disclose the calculations performed in connection with our 
preliminary determination 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, pursuant to section 
735(b)(2) of the Act, 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 HEDP from India 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. Rebuttal briefs, the 
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. 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

[[Page 62470]]

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 timely 
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 timely request for a 
hearing is made in this investigation, we intend to hold the hearing 
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. At the hearing, oral presentations will be limited to 
issues raised in the briefs.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: October 15, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-25026 Filed 10-20-08; 8:45 am]
BILLING CODE 3510-DS-S