Final Determination of Sales at Less Than Fair Value and Affirmative Determination of Critical Circumstances: Small Diameter Graphite Electrodes from the People's Republic of China, 2049-2055 [E9-699]

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[Federal Register Volume 74, Number 9 (Wednesday, January 14, 2009)]
[Notices]
[Pages 2049-2055]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-699]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-929]


Final Determination of Sales at Less Than Fair Value and 
Affirmative Determination of Critical Circumstances: Small Diameter 
Graphite Electrodes from the People's Republic of China

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

EFFECTIVE DATE: January 14, 2009.
SUMMARY: The Department of Commerce (the Department) has determined 
that small diameter graphite electrodes 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 735 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 
below. The period covered by the investigation is July 1, 2007, through 
December 31, 2007 (the POI).

FOR FURTHER INFORMATION CONTACT: Magd Zalok or Drew Jackson, AD/CVD 
Operations, Office 4, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC, 20230; telephone: (202) 482-
4162 and 482-4406, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department published its preliminary determination of sales at 
LTFV on August 21, 2008. See Small Diameter Graphite Electrodes From 
the People's Republic of China: Preliminary Determination of Sales at 
Less Than Fair Value, Postponement of Final Determination, and 
Affirmative Preliminary Determination of Critical Circumstances, in 
Part, 73 FR 49408 (August 21, 2008) (Preliminary Determination). On 
August 25, 2008, the Department received ministerial error allegations 
from petitioners\1\ and one

[[Page 2050]]

respondent, the Fangda Group.\2\ On August 26, 2008, petitioners 
submitted a ministerial error allegation with respect to Fushun Jinly 
Petrochemical Carbon Co., Ltd. (Fushun Jinly), another respondent in 
the investigation. On August 28, 2008, in response to the Department's 
request, petitioners submitted information regarding the effect the 
alleged errors have on the dumping margin calculated for the Fangda 
Group. After reviewing the allegations, the Department determined that 
the Preliminary Determination included significant ministerial errors 
with regard to the Fangda Group. On September 22, 2008, the Department 
published its amended preliminary determination of sales at LTFV. See 
Small Diameter Graphite Electrodes from the People's Republic of China: 
Amended Preliminary Determination of Sales at Less Than Fair Value, 73 
FR 54561 (September 22, 2008) (Amended Preliminary Determination).
---------------------------------------------------------------------------

    \1\ The petitioners in this investigation are SGL Carbon LLC and 
Superior Graphite Co.
    \2\ The following companies comprise the Fangda Group: Fushun 
Carbon Co., Ltd. (Fushun Carbon), Fangda Carbon New Material Co., 
Ltd. (Fangda Carbon), Chengdu Rongguang Carbon Co., Ltd. (Chengdu 
Rongguang), Beijing Fangda Carbon Tech Co., Ltd. (Beijing Fangda), 
and Hefei Carbon Co., Ltd. (Hefei Carbon).
---------------------------------------------------------------------------

    On September 22, 2008, M. Brashem, Inc. (Brashem), a U.S. importer 
of small diameter graphite electrodes, requested that the Department 
correct its amended preliminary determination by applying the Fangda 
Group's cash deposit rate to Hefei Carbon, one of the companies in the 
Fangda Group. See Brashem's September 22, 2008 submission to the 
Department. On October 8, 2008, the Department issued a memorandum 
stating that it would not further amend its Preliminary Determination 
because Brashem's allegation did not constitute a ministerial error. 
See Memorandum from Magd Zalok, International Trade Compliance Analyst, 
to Abdelali Elouaradia, Director, Office 4, dated October 8, 2008.
    Between August 25, 2008, and September 18, 2008, the Department 
conducted verifications of the following companies in the Fangda Group: 
Fushun Carbon, Fangda Carbon, Chengdu Rongguang and Beijing Fangda. See 
the ``Verification'' section below for additional information.
    On August 25, 2008, Fushun Jinly filed an untimely and unsolicited 
submission with the Department in which it made substantial revisions 
to its factors of production (FOP) database. In response to requests 
from the Department, on August 27, 2008, and September 3, 2008, Fushun 
Jinly filed submissions with the Department explaining the untimely 
revisions. In a letter issued to Fushun Jinly on September 9, 2008, the 
Department rejected the untimely new database, as well as the August 
27, 2008 and September 3, 2008 submissions, and informed Fushun Jinly 
of the Department's intention not to verify any of its information 
because the untimely submission raised serious questions as to the 
credibility of its previously reported information. See Letter to 
Fushun Jinly, dated September 9, 2008 (September 9, 2008 Letter).
    On October 6, 2008, the petitioners requested that the Department 
issue an amended preliminary scope determination to include connecting 
pin joining systems (connecting pins) in the scope of the 
investigation.
    In response to the Department's invitation to comment on the 
Preliminary Determination, on November 3, 2008, the petitioners, the 
Fangda Group and Fushun Jinly filed case briefs. The petitioners, the 
Fangda Group and Fushun Jinly filed rebuttal briefs on November 10, 
2008. Upon requests from the petitioners, the Fangda Group and Fushun 
Jinly, on November 20, 2008, the Department held a public hearing.

Analysis of Comments Received

    All of the issues raised in the case and rebuttal briefs submitted 
in this investigation are addressed in the ``Issues and Decision 
Memorandum for the Final Determination in the Less-Than-Fair-Value 
Investigation of Small Diameter Graphite Electrodes from the People's 
Republic of China,'' dated January 5, 2009, which is hereby adopted by 
this notice (Issues and Decision Memorandum). Appendix I to this notice 
contains a list of the issues addressed in the Issues and Decision 
Memorandum. The Issues and Decision Memorandum, which is a public 
document, is on file in the Central Records Unit (CRU) at the Main 
Commerce Building, Room 1117, and is accessible on the Web at https://
ia.ita.doc.gov/frn. The paper copy and electronic version of the 
memorandum are identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of the comments received, we have made the 
following changes to our preliminary determination:
    1. We based our determination with respect to Fushun Jinly on total 
adverse facts available (AFA) because its questionnaire responses were 
not verifiable and because Fushun Jinly failed to cooperate to the best 
of its ability with this investigation. As total AFA, we found Fushun 
Jinly to be part of the PRC-wide entity.
    2. We assigned the Fangda Group a dumping margin based on total AFA 
because we found its FOP data to be unreliable and because the Fangda 
Group failed to cooperate to the best of its ability with this 
investigation. As total AFA, we assigned the Fangda Group the highest 
margin in this proceeding.
    3. We have determined that critical circumstances exist with 
respect to the Fangda Group, the separate rate companies, and the PRC-
wide entity, including Fushun Jinly.
    4. We have assigned the separate rate companies a dumping margin 
equal to the simple average of the margins alleged in the petition. See 
the Antidumping Petition for Small Diameter Graphite Electrodes for the 
Peoples Republic of China, dated January 17, 2008, and amendment to 
Petition, dated January 30, 2008.
    5. We determined that connecting pins are covered by the scope of 
the investigation.

Scope of Investigation

    The merchandise covered by this investigation includes all small 
diameter graphite electrodes of any length, whether or not finished, of 
a kind used in furnaces, with a nominal or actual diameter of 400 
millimeters (16 inches) or less, and whether or not attached to a 
graphite pin joining system or any other type of joining system or 
hardware. The merchandise covered by this investigation also includes 
graphite pin joining systems for small diameter graphite electrodes, of 
any length, whether or not finished, of a kind used in furnaces, and 
whether or not the graphite pin joining system is attached to, sold 
with, or sold separately from, the small diameter graphite electrode. 
Small diameter graphite electrodes and graphite pin joining systems for 
small diameter graphite electrodes are most commonly used in primary 
melting, ladle metallurgy, and specialty furnace applications in 
industries including foundries, smelters, and steel refining 
operations. Small diameter graphite electrodes and graphite pin joining 
systems for small diameter graphite electrodes that are subject to this 
investigation are currently classified under the Harmonized Tariff 
Schedule of the United States (HTSUS) subheading 8545.11.0000. The 
HTSUS number is provided for convenience and customs purposes, but the 
written description of the scope is dispositive.

[[Page 2051]]

Scope Comments

    In their October 6, 2008, submission, as well as their November 3, 
2008, case brief, the petitioners argued that the scope of this 
investigation should include all connecting pins for small diameter 
graphite electrodes, whether or not they are sold separately from the 
graphite electrodes, and requested that the Department amend its 
preliminary determination to include connecting pins in the scope of 
the investigation. The respondents argued that connecting pins are 
within the scope of the investigation when they are sold with graphite 
electrodes (either attached to the electrode or unattached), but not 
when they are sold separately from the graphite electrodes (i.e., when 
the connecting pins are not part of an electrode order). For the 
reasons discussed in the Issues and Decision Memorandum, the Department 
has determined that all connecting pins are included in the scope of 
this investigation. The scope description found in the ``Scope of 
Investigation'' section above reflects this determination. See Issues 
and Decision Memorandum at Comment 2.

Verification

    As provided in section 782(i) of the Act, we conducted 
verifications of the Fangda Group's information. See the Department's 
verification reports for the Fangda Group, on file in the CRU. In 
conducting the verifications, we used standard verification procedures, 
including examination of relevant accounting and production records, as 
well as original source documents provided by the respondent.

Adverse Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information requested by the Department, (B) fails to 
provide such information by the deadline, or in the form or manner 
requested, (C) significantly impedes a proceeding, or (D) provides 
information that cannot be verified, the Department shall use, subject 
to section 782(d) of the Act, facts otherwise available in reaching the 
applicable determination. Section 782(d) of the Act allows the 
Department, subject to section 782(e) of the Act, to disregard all or 
part of a deficient or untimely response from a respondent.
    Pursuant to section 782(e) of the Act, the Department shall not 
decline to consider submitted information if all of the following 
requirements are met: (1) the information is submitted by the 
established deadline; (2) the information can be verified; (3) the 
information is not so incomplete that it cannot serve as a reliable 
basis for reaching the applicable determination; (4) the interested 
party has demonstrated that it acted to the best of its ability; and 
(5) the information can be used without undue difficulties.
    Section 776(b) of the Act authorizes the Department to use an 
adverse inference with respect to an interested party if the Department 
finds that the party failed to cooperate by not acting to the best of 
its ability to comply with a request for information.

A. Total Adverse Facts Available for Fushun Jinly

    On August 25, 2008, after the preliminary determination, and on the 
same day that the verification of the Fangda Group began, Fushun Jinly 
filed untimely and unsolicited new information consisting of 
substantial revisions to its FOP database, and other previously 
undisclosed information. In its untimely submission and subsequent 
submissions explaining the untimely submission, Fushun Jinly: (1) 
revealed for the first time that it sold by-products during the POI, 
although it had repeatedly stated that it reused its by-products; (2) 
admitted for the first time that the subcontractors who performed 
graphitization would not provide any documents to support the FOP data 
they had submitted; (3) reported substantial reductions to consumption 
quantities for major graphitization inputs consumed by the same 
subcontractors whose records could not be verified; (4) provided 
company records which call into question the number of subcontractors 
reportedly used in the graphitization process during the POI, and 
whether Fushun Jinly accurately and fully reported to the Department 
its FOP data for such a process; (5) provided production documents 
indicating that it could have reported the FOP data using control 
number (CONNUM) characteristics in addition to power level, which it 
had repeatedly denied it was able to do prior to the preliminary 
determination; and (6) reported FOP data for certain graphite 
electrodes and connecting pins separately, contrary to its repeated 
contention that it could not do so. On September 9, 2008, the 
Department rejected Fushun Jinly's untimely August 25, 2008, FOP 
submission. See September 9, 2008 Letter. In rejecting the untimely FOP 
database, the Department stated that the untimely database and 
subsequent related submissions: (1) indicated that Fushun Jinly had 
previously failed to properly report significant FOP data for one of 
the two types of electrodes sold during the POI; (2) called into 
question the accuracy and verifiability of the FOP data reported for 
graphitization; (3) called into question claims regarding the number of 
subcontractors used during the POI and the level of product specificity 
to which FOP data could have been reported; (4) indicated that Fushun 
Jinly may have purchased graphitized semi-finished products in addition 
to the graphitized semi-finished products supplied by subcontractors. 
See id. Given the foregoing concerns, the Department stated that it 
would not be appropriate to verify any of the information reported by 
Fushun Jinly. See id .
    Fushun Jinly's untimely FOP submission contained information that 
the Department had repeatedly sought throughout the investigation, yet 
Fushun Jinly repeatedly failed to provide the requested information by 
the deadlines established for submitting such information. Thus, we 
have determined that Fushun Jinly's actions significantly impeded the 
proceeding. Moreover, Fushun Jinly's untimely FOP submission and 
subsequent related submissions demonstrated that important elements of 
the FOP data on the record were either inaccurate, improperly reported, 
and/or could not be verified. Additionally, Fushun Jinly's actions 
demonstrate that it failed to cooperate by not acting to the best of 
its ability to comply with requests from the Department. Accordingly, 
pursuant to sections 776(a)(2)(A), (B), (C) and (D) and 776(b) of the 
Act, we have used AFA in reaching our final determination with respect 
to Fushun Jinly. Specifically, we have treated Fushun Jinly as part of 
the PRC-wide entity and assigned Fushun Jinly the PRC-wide rate of 
159.64 percent.\3\ See the sections entitled ``The PRC-Wide Rate'' and 
``Corroboration,'' below, for a discussion of the selection and 
corroboration of the PRC-Wide rate. See also the accompanying Issues 
and Decision Memorandum at Comment 1 for details.
---------------------------------------------------------------------------

    \3\ The Department incorrectly listed 159.34 percent as the 
highest petition margin in the Preliminary Determination. In fact, 
the highest margin alleged in the Petition is 159.64 percent. See 
the Petition, and Enclosure 4 of petitioners' January 30, 2008, 
addendum to Petition.
---------------------------------------------------------------------------

Total Adverse Facts Available for the Fangda Group

    During verification of the Fangda Group's responses, the Department 
found that the Fangda Group: (1) failed to report FOP data for Hefei 
Carbon, one of the companies within the Fangda Group that produced 
small diameter graphite electrodes with characteristics that matched 
the CONNUM

[[Page 2052]]

characteristics reported for certain U.S. sales; (2) failed to identify 
the existence of, and report FOP data for, a number of tollers that 
performed significant processes on small diameter graphite electrodes 
with characteristics that matched the CONNUM characteristics reported 
for certain U.S. sales; and (3) had production records that could have 
been used to report factor quantities using more of the CONNUM criteria 
then were used, despite repeated claims to the contrary. The missing 
information noted above had been previously requested by the 
Department. Thus, the record shows that the Fangda Group withheld 
information requested by the Department and significantly impeded the 
proceeding. Moreover, given the importance of the missing information, 
we have determined that we lack reliable data to calculate normal 
value. Consequently, pursuant to sections 776(a)(2)(A), and (C) of the 
Act, we have determined that the Fangda Group's dumping margin should 
be based on total facts available.
    Furthermore, the Fangda Group possessed the information needed to 
report FOP data for Hefei Carbon and the production records that could 
have been used to report factor quantities using more of the CONNUM 
criteria then were used. Thus, the Fangda Group could have reported to 
the Department the FOP data for Hefei Carbon and factor quantities that 
were more CONNUM-specific. Moreover, the Fangda Group never informed 
the Department of the existence of the unreported tollers, nor is there 
any indication on the record that the Fangda Group ever attempted to 
obtain any data from the unreported tollers. Accordingly, we find that 
the Fangda Group failed to act to the best of its ability in this 
investigation, and, pursuant to section 776(b) of the Act, the use of 
an adverse inference is warranted.
    Section 776(b) of the Act authorizes the Department to use, as AFA: 
information derived from: (1) the petition; (2) the final determination 
from the LTFV investigation; (3) a previous administrative review; or 
(4) any other information placed on the record. In selecting a rate for 
AFA, the Department selects one that is sufficiently adverse ``as to 
effectuate the purpose of the facts available rule to induce 
respondents to provide the Department with complete and accurate 
information in a timely manner.'' See Notice of Final Determination of 
Sales at Less Than Fair Value: Static Random Access Memory 
Semiconductors From Taiwan, 63 FR 8909 (February 23, 1998). It is the 
Department's practice to select, as AFA, the higher of: (a) the highest 
margin alleged in the petition or (b) the highest calculated rate for 
any respondent in the investigation. See Final Determination of Sales 
at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon Quality 
Steel Products From the People's Republic of China, 65 FR 34660 (May 
31, 2000) and accompanying Issues and Decisions Memorandum at Facts 
Available (Cold-Rolled Flat-Rolled Steel From the PRC). The highest 
margin alleged in the Petition is 159.64 percent. Since the highest 
dumping margin derived from the Petition is higher than the weighted-
average margins calculated in this case, we have, as AFA, assigned the 
Fangda Group the highest margin alleged in the Petition, 159.64 
percent. See the Petition, and Enclosure 4 of petitioners' January 30, 
2008, addendum to Petition.
    In addition, because the shipment data reported by the Fangda Group 
in connection with critical circumstances were not reported on the 
basis of shipment date as required by the Department, and could not be 
verified, we have found, as AFA, that imports were massive with respect 
to the Fangda Group. See the section of this notice entitled ``Critical 
Circumstances,'' below, for a discussion of our critical circumstances 
determination and the section of this notice entitled 
``Corroboration,'' below, for a discussion of the corroboration of the 
highest petition rate. See, also, the accompanying Issues and Decision 
memorandum at Comment 3 for details.

Critical Circumstances

    In the Preliminary Determination, the Department found that there 
was reason to believe or suspect that critical circumstances exist for 
imports of subject merchandise from the Fangda Group and the separate 
rate companies because: (1) in accordance with section 733(e)(1)(A)(ii) 
of the Act, the person by whom, or for whose account, the merchandise 
was imported knew or should have known that the exporter was selling 
the subject merchandise at less than its fair value and that there was 
likely to be material injury by reason of such sales; and (2) in 
accordance with section 733(e)(1)(B) of the Act, the Fangda Group and 
the separate rate companies had massive imports during a relatively 
short period. However, the Department did not preliminarily find that 
there was reason to believe or suspect that critical circumstances 
existed for imports of subject merchandise from Fushun Jinly or the 
PRC-wide entity. See Preliminary Determination. In their case briefs, 
the petitioners argued that because the application of total AFA to 
both Fushun Jinly and the Fangda Group is warranted, the Department 
should find that critical circumstances exist with respect to these 
companies as well as the separate rate companies and the PRC-wide 
entity. If the Department does not apply total AFA to Fushun Jinly and 
the Fangda Group, the petitioners argue that, as partial AFA, the 
Department should find a massive increase in subject imports from these 
companies and determine the critical circumstances exist with respect 
to Fushun Jinly as well as the Fangda Group and the separate rate 
companies. Fushun Jinly and the Fangda Group contend that the 
Department's critical circumstances determination should be based on 
their reported export data, rather than AFA. If, however, the 
Department determines, as AFA, that massive imports exist, the 
respondents argue that the Department should not find critical 
circumstances for any party if the dumping margins are less than 25 
percent for the Fangda Group and the separate rate companies, including 
Fushun Jinly. In any case, the respondents maintain that the Department 
should not rely upon import statistics for HTSUS number 8545.11.00.00 
to determine whether massive subject imports exist since this HTSUS 
number includes imports of non-subject merchandise (i.e., large 
diameter graphite electrodes).
    As noted above, the Department was not able to verify the shipment 
data reported by the Fangda Group in connection with critical 
circumstances because the data were not reported on the basis of 
shipment date as required by the Department. Since the shipment data 
provided by the Fangda Group could not be verified, we find that the 
Fangda Group failed to cooperate by not acting to the best of its 
ability to provide the requested shipment data. Accordingly, we have 
based our determination of whether there were massive imports with 
respect to the Fangda Group on AFA (see section 776 (a)(2)(D) and 776 
(b) of the Act). The Statement of Administrative Action (SAA) 
accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol. 
1 (1994) at 870, notes that the Department may employ adverse 
inferences in selecting from among the facts available ``to ensure that 
the party does not obtain a more favorable result by failing to 
cooperate fully.'' The SAA also instructs the Department to consider, 
in employing adverse inferences, ``the extent to which a party may 
benefit from its own lack of cooperation.'' Id. Based on the shipment

[[Page 2053]]

data reported by the Fangda Group in connection with critical 
circumstances, in the Preliminary Determination the Department found 
massive imports with respect to the Fangda Group. To ensure that the 
Fangda Group does not obtain a more favorable result by failing to 
cooperate, for this final determination, we continue to find, as AFA, 
that imports of subject merchandise were massive for the Fangda Group.
    In addition, based on our comparison of the unadjusted volume of 
imports of graphite electrodes from the PRC reported by the 
International Trade Commission's (ITC) DataWeb for the periods February 
2008 through July 2008 and August 2007 through January 2008, we found 
that imports were massive for the separate rate companies and the PRC-
wide entity, including Fushun Jinly. We did not reduce the ITC's 
DataWeb import volumes by shipment volumes reported by the Fangda Group 
and Fushun Jinly, or rely upon these companies' shipment volumes in 
determining whether massive imports exist for the separate rate 
companies because the shipment data submitted by Fushun Jinly and the 
Fangda Group were not verified. Thus, these data are no longer reliable 
for purposes of our final critical circumstances analysis. Moreover, 
because the dumping margins applied to all interested parties in this 
investigation exceed 25 percent, we find that importers should have 
known that graphite electrodes were being sold at LTFV. We also 
continue to find the ITC's preliminary injury determination in the 
instant investigation is sufficient to impute knowledge of material 
injury to the importers. Accordingly, the Department finds that 
critical circumstances exist for the Fangda Group, the separate rate 
applicants, and the PRC-wide entity, including Fushun Jinly. For 
further details, see Comment 4 of the Issues and Decision Memorandum.

Surrogate Country

    In the Preliminary Determination, we selected India as the 
appropriate surrogate country noting that it was on the Department's 
list of countries that are at a level of economic development 
comparable to the PRC and that: (1) India is a significant producer of 
merchandise comparable to subject merchandise; and, (2) reliable Indian 
data for valuing factors of production are readily available. See 
Preliminary Determination. No party has commented on our selection of 
India as the appropriate surrogate country. For the final 
determination, we continue to find India to be the appropriate 
surrogate country in this investigation.

Separate Rates

    In proceedings involving non-market-economy (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) (Sparklers), 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) (Silicon 
Carbide); see also 19 C.F.R. Sec.  351.107(d).
    In the Preliminary Determination, the Department granted separate-
rate status to Fushun Jinly, Fushun Carbon, Fangda Carbon, Beijing 
Fangda, Chengdu Rongguang, and the following separate rate applicants: 
Jilin Carbon Import and Export Company (Jilin Carbon); Guanghan Shida 
Carbon Co., Ltd. (Guanghan Shida); Nantong River-East Carbon Joint 
Stock Co., Ltd. (Nantong River); Xinghe County Muzi Carbon Co. Ltd. 
(Muzi Carbon); Brilliant Charter Limited (Brilliant Charter); 
Shijiazhuang Huanan Carbon Factory (Huanan Carbon); Shenyang Jinli 
Metals & Minerals Imp & Exp Co., Ltd. (Shenyang Jinli); Shanghai 
Jinneng International Trade Co., Ltd. (Shanghai Jinneng); Dalian Thrive 
Metallurgy Import and Export Co., Ltd.; GES (China) Co., Ltd. (Dalian 
Thrive); and Qingdao Haosheng Metals & Minerals Imp & Exp Co., Ltd. 
(Qingdao Metal). As discussed above, the Department decided, as AFA, to 
treat Fushun Jinly as part of the PRC-wide entity. Moreover, we note 
that the information that Fushun Jinly provided to the Department to 
demonstrate the absence of de facto and de jure control was not 
verified. Consequently we have not granted Fushun Jinly a separate 
rate. Although we are basing the Fangda Group's margin on total AFA, 
the Department was able to verify the Fangda Group's separate rate 
information (e.g., ownership, selection of management process, etc.) 
for Fushun Carbon, Fangda Carbon, Beijing Fangda, and Chengdu 
Rongguang. Thus, we are continuing to find that the evidence placed on 
the record of this investigation by the Fangda Group demonstrates both 
a de jure and de facto absence of government control, with respect to 
Fushun Carbon, Fangda Carbon, Beijing Fangda, and Chengdu Rongguang, 
exports of the merchandise under investigation and thus they are 
eligible for separate-rate status. Because no parties commented on its 
separate-rate status of the other separate-rate applicants, we continue 
to find the other separate-rate applicants are eligible for separate-
rate status. Since we assigned the Fangda Group a dumping margin based 
on total AFA, and we are considering Fushun Jinly to be part of the 
PRC-wide entity, we do not have any mandatory respondents in this 
investigation whose dumping margin is not based on total AFA. Thus, we 
have assigned the other separate rate companies a dumping margin equal 
to the simple average of the margins alleged in the petition.

The PRC-Wide Rate

    In the Preliminary Determination, the Department considered certain 
non-responsive PRC producers/exporters to be part of the PRC-wide 
entity because they did not respond to our requests for information and 
did not demonstrate that they operated free of government control over 
their export activities. No additional information regarding these 
entities has been placed on the record since the publication of the 
Preliminary Determination. Since the PRC-wide entity did not provide 
the Department with requested information, pursuant to section 
776(a)(2)(A) of the Act (which covers situations where an interested 
party withholds requested information), we continue to find it 
appropriate to base the PRC-wide rate on facts available. Moreover, 
given that the PRC-wide entity did not respond to our request for 
information, we continue to find that it failed to cooperate to the 
best of its ability to comply with a request for information. Thus, 
pursuant to section 776(b) of the Act, we have continued to use an 
adverse inference in selecting from among the facts otherwise 
available. See, e.g., 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) (a case in which the Department applied an adverse inference in 
determining the Russia-wide rate); Final Determination of Sales at Less 
Than Fair Value: Certain Artists Canvas from the People's Republic of 
China, 71 Fed. Reg. 16116, 16118-19 (March 30, 2006) (a case in which 
the Department applied an adverse inference in determining the PRC-wide 
rate).

[[Page 2054]]

    Pursuant to section 776(b) of the Act, the Department may select, 
as AFA information derived from: (1) the petition; (2) the final 
determination from the LTFV investigation; (3) a previous 
administrative review; or (4) any other information placed on the 
record. As noted above, in order to induce respondents to provide the 
Department with complete and accurate information in a timely manner, 
the Department's practice is to select, as AFA, the higher of: (a) the 
highest margin alleged in the petition or (b) the highest calculated 
rate for any respondent in the investigation. See Cold-Rolled Flat-
Rolled Steel From the PRC. The highest margin alleged in the Petition 
is 159.64 percent. Since the dumping margin derived from the Petition 
is higher than the weighted-average margins calculated in this case, we 
have continued to assign the PRC-wide entity a dumping margin of 159.64 
percent. See the Petition, and Enclosure 4 of petitioners' January 30, 
2008, addendum to Petition.
    Since we begin with the presumption that all companies within an 
NME country are subject to government control and only the exporters 
listed under the ``Final Determination Margins'' section below have 
overcome that presumption, we are applying a single antidumping rate 
(i.e., the PRC-wide rate) to all exporters of subject merchandise from 
the PRC, other than the exporters listed in the ``Final Determination 
Margins'' section of this notice. 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) (applying the PRC-wide 
rate to all exporters of subject merchandise in the PRC based on the 
presumption that the export activities of the companies that failed to 
respond to the Department's questionnaire were controlled by the PRC 
government).

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 Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel 
Products From Brazil: Notice of Final Determination of Sales at Less 
Than Fair Value, 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).
    To corroborate the 159.64 percent margin used as AFA for the PRC-
wide entity, we relied upon our pre-initiation analysis of the adequacy 
and accuracy of the information in the Petition. See Small Diameter 
Graphite Electrodes from the People's Republic of China: Initiation of 
Antidumping Duty Investigation, 73 FR 8287 (February 13, 2008) 
(Initiation Notice); see also Notice of Final Determination of Sales at 
Less Than Fair Value and Affirmative Final Determination of Critical 
Circumstances: Circular Welded Carbon Quality Steel Pipe from the 
People's Republic of China, 73 FR 31970, 31972 (June 5, 2008) (where 
the Department relied upon pre-initiation analysis to corroborate the 
highest margin alleged in the petition). During the initiation stage, 
we examined evidence supporting the calculations in the petition and 
the supplemental information provided by petitioners 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 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 
export price and NV calculations. Id. Since the initiation, the 
Department has found no other corroborating information available in 
this case, and received no comments from interested parties as to the 
relevance or reliability of this secondary information. Based on the 
above, for the final determination, the Department finds that the rates 
derived from the Petition are corroborated to the extent practicable 
for purposes of the AFA rate assigned to the PRC-wide entity and the 
Fangda Group.

Combination Rates

    In the Initiation Notice, the Department stated that it would 
calculate combination rates for certain respondents that are eligible 
for a separate rate in this investigation. See Initiation Notice. This 
change in practice is described in Policy Bulletin 05.1:
    {w{time} hile continuing the practice of assigning separate rates 
only to exporters, all separate rates that the Department will now 
assign in its NME investigations will be specific to those producers 
that supplied the exporter during the period of investigation. Note, 
however, that one rate is calculated for the exporter and all of the 
producers which supplied subject merchandise to it during the period of 
investigation. This practice applies both to mandatory respondents 
receiving an individually calculated separate rate as well as the pool 
of non-investigated firms receiving the weighted-average of the 
individually calculated rates. This practice is referred to as the 
application of ``combination rates'' because such rates apply to 
specific combinations of exporters and one or more producers. The cash-
deposit rate assigned to an exporter will apply only to merchandise 
both exported by the firm in question and produced by a firm that 
supplied the exporter during the period of investigation.''
See Policy Bulletin 05.1, ``Separate Rates Practice and Application of 
Combination Rates in Antidumping Investigations Involving Non-Market 
Economy Countries.''

Final Determination Margins

    We determine that the following weighted-average dumping margins 
exist for the period July 1, 2007, through December 31, 2007:

------------------------------------------------------------------------
           Exporter & Producer                Weighted-Average Margin
------------------------------------------------------------------------
Fushun Carbon Co., Ltd. Produced by:                      159.64[percnt]
 Fushun Carbon Co., Ltd..................
Fangda Carbon New Material Co., Ltd.                      159.64[percnt]
 Produced by: Fangda Carbon New Material
 Co., Ltd................................
Beijing Fangda Carbon Tech Co., Ltd.                     159.64 [percnt]
 Produced by: Chengdu Rongguang Carbon
 Co., Ltd.; Fangda Carbon New Material
 Co., Ltd.; or Fushun Carbon Co., Ltd....
Chengdu Rongguang Carbon Co., Ltd.                        159.64[percnt]
 Produced by: Chengdu Rongguang Carbon
 Co., Ltd................................
Jilin Carbon Import and Export Company                    132.90[percnt]
 Produced by: Sinosteel Jilin Carbon Co.,
 Ltd.....................................

[[Page 2055]]

 
Guanghan Shida Carbon Co., Ltd. Produced                  132.90[percnt]
 by: Guanghan Shida Carbon Co., Ltd......
Nantong River-East Carbon Joint Stock                     132.90[percnt]
 Co., Ltd. Produced by: Nantong River-
 East Carbon Co., Ltd.; or Nantong Yangzi
 Carbon Co., Ltd.........................
Xinghe County Muzi Carbon Co. Ltd.                        132.90[percnt]
 Produced by: Xinghe County Muzi Carbon
 Co., Ltd................................
Brilliant Charter Limited Produced by:                    132.90[percnt]
 Nantong Falter New Energy Co., Ltd.; or
 Shanxi Jinneng Group Co., Ltd...........
Shijiazhuang Huanan Carbon Factory                        132.90[percnt]
 Produced by: Shijiazhuang Huanan Carbon
 Factory.................................
Shenyang Jinli Metals & Minerals Imp &                    132.90[percnt]
 Exp Co., Ltd. Produced by: Shenyang
 Jinli Metals & Minerals Imp. & Exp. Co.,
 Ltd.....................................
Shanghai Jinneng International Trade Co.,                 132.90[percnt]
 Ltd. Produced by: Shanxi Jinneng Group
 Datong Energy Development Co., Ltd......
Dalian Thrive Metallurgy Import and                       132.90[percnt]
 Export Co., Ltd. Produced by: Linghai
 Hongfeng Carbon Products Co., Ltd.;
 Tianzhen Jintian Graphite Electrodes
 Co., Ltd.; Jiaozuo Zhongzhou Carbon
 Products Co., Ltd.; Heilongjiang Xinyuan
 Carbon Products Co., Ltd.; Xuzhou
 Jianglong Carbon Manufacture Co., Ltd.;
 or Xinghe Xinyuan Carbon Products Co.,
 Ltd.....................................
GES (China) Co., Ltd. Produced by:                        132.90[percnt]
 Shanghai GC Co., Ltd.; Fushun Jinli
 Petrochemical Carbon Co., Ltd.; Xinghe
 County Muzi Carbon Plant and Linyi
 County Lubei Carbon Co., Ltd. Shandong
 Province................................
Qingdao Haosheng Metals & Minerals Imp &                  132.90[percnt]
 Exp Co., Ltd. Produced by: Sinosteel
 Jilin Carbon Co., Ltd...................
PRC-Wide Entity..........................                 159.64[percnt]
------------------------------------------------------------------------

Disclosure

    We will disclose to parties the calculations performed within five 
days of the date of public announcement of this determination in 
accordance with 19 C.F.R. Sec.  351.224(b).

Continuation of Suspension of Liquidation

    In the Preliminary Determination, the Department found that 
critical circumstances exist with respect to imports of subject 
merchandise from the Fangda Group and the separate rate companies but 
the Department found that critical circumstances did not exist with 
respect to Fushun Jinly and the PRC-wide entity. As noted above, for 
the final determination, the Department has found that critical 
circumstances exist with respect to imports of subject merchandise from 
the Fangda Group, the separate rate companies, and the PRC-wide entity, 
including Fushun Jinly. Thus, in accordance with section 735(c)(1)(B) 
of the Act, we are directing U.S. Customs and Border Protection (CBP) 
to continue to suspend liquidation of all imports of subject 
merchandise from the Fangda Group and the separate rate applicants\4\ 
entered, or withdrawn from warehouse, for consumption on or after May 
23, 2008, which is 90 days prior to the date of publication of the 
Preliminary Determination in the Federal Register. For the PRC wide 
entity, including Fushun Jinly, we will instruct CBP to suspend 
liquidation of all entries of subject merchandise entered, or withdrawn 
from warehouse, for consumption on or after May 23, 2008, pursuant to 
section 735(c)(4)(B) of the Act. We will instruct CBP to continue to 
require a cash deposit or the posting of a bond for all companies based 
on the estimated weighted-average dumping margins shown above. The 
suspension of liquidation instructions will remain in effect until 
further notice.
---------------------------------------------------------------------------

    \4\ As noted above, the separate rate applicants are Jilin 
Carbon; Guanghan Shida Carbon Co., Ltd; Nantong River East Carbon 
Co. Ltd.; Xinghe County Muzi Carbon Co. Ltd.; Brilliant Charter 
Limited; Shijiazhuang Huanan Carbon Factory; Shenyang Jinli Metals & 
Minerals Imp & Exp Co., Ltd.; Shanghai Jinneng International Trade 
Co., Ltd.; Dalian Thrive Metallurgy Import and Export Co., Ltd.; GES 
(China) Co., Ltd.; and Qingdao Haosheng Metals & Minerals Imp & Exp 
Co., Ltd..
---------------------------------------------------------------------------

ITC Notification

    In accordance with section 735(d) of the Act, we have notified 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, 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 within 45 days of this final determination. 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 C.F.R. Sec.  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 and notice are issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: January 5, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.

Appendix I

Comment 1: Whether Fushun Jinly's Dumping Margin Should be Based on 
Adverse Facts Available
Comment 2: Whether Graphite Connecting Pins are Covered by the Scope of 
the Investigation
Comment 3: Whether the Fangda Group's Dumping Margin Should be Based on 
Adverse Facts Available
Comment 4: Whether Critical Circumstances Exist for the Fangda Group, 
Fushun Jinly, the Separate Rate Applicants, and the PRC-Wide Entity
[FR Doc. E9-699 Filed 1-13-09; 8:45 am]
BILLING CODE 3510-DS-S