Certain Activated Carbon From the People's Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review and Extension of Time Limits for the Final Results, 21317-21330 [E9-10631]
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Federal Register / Vol. 74, No. 87 / Thursday, May 7, 2009 / Notices
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John A. Bricker,
State Conservationist, Natural Resources
Conservation Service, Richmond, Virginia.
[FR Doc. E9–10605 Filed 5–6–09; 8:45 am]
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AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting the first
administrative review of the
antidumping duty order on certain
activated carbon from the People’s
Republic of China (‘‘PRC’’) for the
period October 11, 2006, through March
31, 2008. The Department has
preliminarily determined that sales have
been made below normal value (‘‘NV’’)
by the respondents. If these preliminary
1 The Department does not include merchandise
that entered the United States during the
provisional measures gap period (‘‘gap period’’),
i.e., April 9, 2007, and April 19, 2007, in our
calculation because these entries are not subject to
antidumping duties. See Notice of Preliminary
Results of Antidumping Duty Administrative
Review: Low Enriched Uranium from France, 69 FR
3883 (January 27, 2004). However, for the purposes
of these preliminary results, we are basing the
margin calculation on all reported U.S. sales made
during the POR because we are unable to determine
whether any reported U.S. sales entered during the
gap period. We will request additional information
from the respondents with respect to this issue.
2 Norit Americas Inc. and Calgon Carbon
Corporation.
International Trade Administration
[A–570–904]
Sunshine Act Notice
AGENCY: United States Commission on
Civil Rights.
ACTION: Notice of meeting.
DATE AND TIME:
Friday, May 15, 2009;
9:30 a.m. EDT.
PLACE: 624 9th St., NW., Room 540,
Washington, DC 20425.
Meeting Agenda
This meeting is open to the public.
I. Approval of Agenda.
II. Approval of Minutes of April 17,
2009 Meeting.
III. Announcements.
IV. Staff Director’s Report.
• Deputy Staff Director Position
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17:03 May 06, 2009
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Background
Certain Activated Carbon From the
People’s Republic of China: Notice of
Preliminary Results of the
Antidumping Duty Administrative
Review and Extension of Time Limits
for the Final Results
Dated: May 5, 2009.
David P. Blackwood,
General Counsel.
[FR Doc. E9–10819 Filed 5–5–09; 4:15 pm]
DEPARTMENT OF COMMERCE
COMMISSION ON CIVIL RIGHTS
results are adopted in our final results
of this review, the Department will
instruct U.S. Customs and Border
Protection (‘‘CBP’’) to assess
antidumping duties on all appropriate
entries of subject merchandise during
the period of review.
Interested parties are invited to
comment on these preliminary results.
The Department intends to issue the
final results no later than 180 days from
the date of publication of this notice,
pursuant to section 751(a)(3)(A) of the
Tariff Act of 1930, as amended (‘‘the
Act’’). See ‘‘Extension of the Time
Limits for the Final Results’’ below.
DATES: Effective Date: May 7, 2009.
FOR FURTHER INFORMATION CONTACT: Julia
Hancock, Irene Gorelik, or Bob Palmer,
AD/CVD Operations, Office 9, Import
Administration, International Trade
Administration, Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–1394, (202) 482–
6905 or (202) 482–9068, respectively.
SUPPLEMENTARY INFORMATION:
On April 27, 2007, the Department
published in the Federal Register an
antidumping duty order on certain
activated carbon from the PRC. See
Notice of Antidumping Duty Order:
Certain Activated Carbon from the
People’s Republic of China, 72 FR 20988
(April 27, 2007) (‘‘Order’’). On April 1,
2008, the Department published in the
Federal Register a notice of opportunity
to request an administrative review of
the antidumping duty order of certain
activated carbon from the PRC for the
period October 11, 2006, through March
31, 2008.1 See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
to Request Administrative Review, 73
FR 17317 (April 1, 2008). The
Department received timely requests by
Petitioners 2 to conduct a review of 90
companies. On June 4, 2008, the
Department initiated this review with
respect to all requested companies. See
BILLING CODE 6335–01–P
BILLING CODE 3410–16–P
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Federal Register / Vol. 74, No. 87 / Thursday, May 7, 2009 / Notices
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews and Requests for Revocation in
Part, 73 FR 31813 (June 4, 2008)
(‘‘Initiation Notice’’).
On June 26, 2008, Petitioners
withdrew the request for review with
respect to 57 of the 90 originally
requested companies. On July 22, 2008,
the Department published a notice of
rescission in the Federal Register for
those 57 companies. See Certain
Activated Carbon From the People’s
Republic of China: Notice of Partial
Rescission of Antidumping Duty
Administrative Review, 73 FR 42550
(July 22, 2008). On September 16, 2008,
Petitioners withdrew the request for
review with respect to an additional 19
companies. On October 1, 2008, the
Department published a second notice
of rescission in the Federal Register for
those 19 companies. See Certain
Activated Carbon from the People’s
Republic of China: Notice of Partial
Rescission of Antidumping Duty
Administrative Review, 73 FR 57058
(October 1, 2008). Following the two
partial rescissions, 14 companies
remained to be reviewed.3
On November 26, 2008, the
Department published a notice
extending the time period for issuing
the preliminary results by 120 days to
April 30, 2009. See Certain Activated
Carbon from the People’s Republic of
China: Extension of Time Limits for
Preliminary Results of the Antidumping
Duty Administrative Review, 73 FR
72026 (November 26, 2008).
Respondent Selection
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
exporter or producer of the subject
merchandise.4 However, section
777A(c)(2) of the Act gives the
Department discretion to limit its
examination to a reasonable number of
exporters or producers if it is not
3 These companies are: Datong Municipal
Yunguang Activated Carbon Co., Ltd.; Hebei
Foreign Trade Advertisement Company (and its
successor company, Hebei Shenglun Import and
Export Group Company); Ningxia Huahui Activated
Carbon Co., Ltd.; Ningxia Lingzhou Foreign Trade
Co., Ltd.; Ningxia Mineral & Chemical Limited.;
Tangshan Solid Carbon Co., Ltd.; Tianjin Maijin
Industries Co., Ltd.; Jilin Bright Future Chemicals
Company, Ltd.; Jilin Province Bright Future
Industry and Commerce Co., Ltd.; Calgon Carbon
(Tianjin) Co., Ltd.; Jacobi Carbons AB and its
affiliates, Tianjin Jacobi International Trading Co.,
Ltd. and Jacobi Carbons, Inc.; Tianjin Jacobi
International Trading Co., Ltd.; Ningxia Guanghua
Cherishment Activated Carbon Co., Ltd.; and
Beijing Pacific Activated Carbon Products Co., Ltd.
4 See also 19 CFR 351.204(c) regarding
respondent selection, in general.
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practicable to examine all exporters or
producers involved in the review.
On June 9, 2008, the Department
released CBP data for entries of the
subject merchandise during the period
of review (‘‘POR’’) under administrative
protective order (‘‘APO’’) to all
interested parties having an APO as of
five days of publication of the Initiation
Notice, inviting comments regarding the
CBP data and respondent selection. The
Department received comments and
rebuttal comments between June 23,
2008, and July 3, 2008. Based upon the
comments received from the Petitioners
and several respondents, on July 8,
2008, the Department provided a second
round of CBP data under APO to all
interested parties having an APO, and
invited comments regarding the second
round of CBP data. The Department
received parties’ second round of
comments between July 14, 2008 and
July 23, 2008.
On August 5, 2008, the Department
issued its respondent selection
memorandum after assessing its
resources and determining that it could
reasonably examine three exporters
subject to this review. Pursuant to
section 777A(c)(2)(B) of the Act, the
Department selected Jacobi Carbons AB
(‘‘Jacobi’’),5 Calgon Carbon (Tianjin) Co.
Ltd. (‘‘CCT’’), and Jilin Bright Future
Chemicals Company, Ltd. (‘‘Jilin’’) as
mandatory respondents.6 The
Department sent its antidumping
questionnaire to CCT, Jacobi, and Jilin
on August 5, 2008. On August 7, 2008,
a separate rate respondent, Ningxia
Guanghua Cherishmet Activated Carbon
Co., Ltd. (‘‘GHC’’), requested treatment
as a voluntary respondent.
On September 15, 2008, Jilin filed a
letter stating that it will not participate
as a mandatory respondent in this
administrative review.7 Upon receiving
comments from Petitioners regarding
Jilin’s withdrawal from the proceeding
and comments from GHC regarding its
status as a voluntary respondent, the
Department issued a memorandum
selecting GHC as a voluntary
respondent. The Department stated that
because Jilin decided not to respond to
5 Consisting of Jacobi Carbons AB and its
affiliates, Tianjin Jacobi International Trading Co.,
Ltd. and Jacobi Carbons, Inc.
6 See Memorandum to James Doyle, Director, AD/
CVD Operations, Office 9, from Paul Walker,
International Trade Compliance Analyst, AD/CVD
Operations, Office 9; First Antidumping Duty
Administrative Review of Certain Activated Carbon
from the PRC: Selection of Respondents for
Individual Review, dated August 5, 2008
(‘‘Respondent Selection Memo’’).
7 See Letter from Jilin Regarding Activated Carbon
from the People’s Republic of China and
Termination of Jilin’s Participation as a Mandatory
Respondent, dated September 15, 2008.
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the Department’s questionnaires in this
administrative review, and the
Department previously determined that
it had the resources to examine three
respondents,8 it would individually
review GHC pursuant to section 782(a)
of the Act.9
Petitioners submitted deficiency
comments regarding all three
respondents’ questionnaire responses
between October 2008 and April 2009.
The Department issued supplemental
questionnaires to Jacobi, CCT, and GHC
between October 2008 and March 2009.
Period of Review
The POR is October 11, 2006, through
March 31, 2008.
Surrogate Country and Surrogate Value
Data
On August 27, 2008, the Department
sent interested parties a letter inviting
comments on surrogate country
selection and information regarding
valuing factors of production.10 On
February 13, 2009, the Department
received information to value factors of
production (‘‘FOP’’) from GHC, CCT,
Jacobi, and Petitioners. On February 23,
2009, GHC and Petitioners filed rebuttal
comments. On February 24, 2009, GHC
provided additional surrogate value
information. On March 2, 2009,
Petitioners filed additional rebuttal
comments. All the surrogate values
placed on the record were obtained from
sources in India. No parties provided
comments with respect to selection of a
surrogate country.
Scope of the Order
The merchandise subject to this order
is certain activated carbon. Certain
activated carbon is a powdered,
granular, or pelletized carbon product
obtained by ‘‘activating’’ with heat and
steam various materials containing
carbon, including but not limited to coal
(including bituminous, lignite, and
anthracite), wood, coconut shells, olive
stones, and peat. The thermal and steam
treatments remove organic materials and
create an internal pore structure in the
carbon material. The producer can also
use carbon dioxide gas (CO2) in place of
8 See
Respondent Selection Memo.
Memorandum to James Doyle, Director, AD/
CVD Operations, Office 9, through Catherine
Bertrand, Program Manager, Office 9, from Julia
Hancock and Robert Palmer, International Trade
Compliance Analysts, AD/CVD Operations, Office
9; Antidumping Duty Administrative Review of
Certain Activated Carbon from the People’s
Republic of China: Selection of Voluntary
Respondent, dated October 14, 2008.
10 See the Department’s Letter to All Interested
Parties; First Administrative Review of Certain
Activated Carbon from the People’s Republic of
China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated August 27, 2008.
9 See
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steam in this process. The vast majority
of the internal porosity developed
during the high temperature steam (or
CO2 gas) activated process is a direct
result of oxidation of a portion of the
solid carbon atoms in the raw material,
converting them into a gaseous form of
carbon.
The scope of this order covers all
forms of activated carbon that are
activated by steam or CO2, regardless of
the raw material, grade, mixture,
additives, further washing or postactivation chemical treatment (chemical
or water washing, chemical
impregnation or other treatment), or
product form. Unless specifically
excluded, the scope of this order covers
all physical forms of certain activated
carbon, including powdered activated
carbon (‘‘PAC’’), granular activated
carbon (‘‘GAC’’), and pelletized
activated carbon.
Excluded from the scope of the order
are chemically activated carbons. The
carbon-based raw material used in the
chemical activation process is treated
with a strong chemical agent, including
but not limited to phosphoric acid, zinc
chloride sulfuric acid or potassium
hydroxide, that dehydrates molecules in
the raw material, and results in the
formation of water that is removed from
the raw material by moderate heat
treatment. The activated carbon created
by chemical activation has internal
porosity developed primarily due to the
action of the chemical dehydration
agent. Chemically activated carbons are
typically used to activate raw materials
with a lignocellulosic component such
as cellulose, including wood, sawdust,
paper mill waste and peat.
To the extent that an imported
activated carbon product is a blend of
steam and chemically activated carbons,
products containing 50 percent or more
steam (or CO2 gas) activated carbons are
within this scope, and those containing
more than 50 percent chemically
activated carbons are outside this scope.
This exclusion language regarding
blended material applies only to
mixtures of steam and chemically
activated carbons.
Also excluded from the scope are
reactivated carbons. Reactivated carbons
are previously used activated carbons
that have had adsorbed materials
removed from their pore structure after
use through the application of heat,
steam and/or chemicals.
Also excluded from the scope is
activated carbon cloth. Activated carbon
cloth is a woven textile fabric made of
or containing activated carbon fibers. It
is used in masks and filters and clothing
of various types where a woven format
is required.
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Any activated carbon meeting the
physical description of subject
merchandise provided above that is not
expressly excluded from the scope is
included within this scope. The
products subject to the order are
currently classifiable under the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’) subheading
3802.10.00. Although the HTSUS
subheading is provided for convenience
and customs purposes, the written
description of the scope of this order is
dispositive.
Non-Market Economy (‘‘NME’’) Country
Status
In every case conducted by the
Department involving the PRC, the PRC
has been treated as an NME country. In
accordance with section 771(18)(C)(i) of
the Act, any determination that a foreign
country is an NME country shall remain
in effect until revoked by the
administering authority. See Brake
Rotors from the People’s Republic of
China: Final Results and Partial
Rescission of the 2004/2005
Administrative Review and Notice of
Rescission of 2004/2005 New Shipper
Review, 71 FR 66304 (November 14,
2006). None of the parties to this
proceeding have contested such
treatment. Accordingly, the Department
calculated NV in accordance with
section 773(c) of the Act, which applies
to NME countries.
Surrogate Country
When the Department investigates
imports from an NME country and
available information does not permit
the Department to determine NV
pursuant to section 773(a) of the Act,
then, pursuant to section 773(c)(4) of the
Act, the Department bases NV on an
NME producer’s FOPs, to the extent
possible, in one or more marketeconomy countries that (1) are at a level
of economic development comparable to
that of the NME country, and (2) are
significant producers of comparable
merchandise. The Department
determined that India, Indonesia,
Philippines, Colombia, and Thailand are
countries comparable to the PRC in
terms of economic development.11
Based on publicly available
information placed on the record (e.g.,
production data), the Department
determines India to be a reliable source
for surrogate values because India is at
a comparable level of economic
11 See the Department’s Letter to All Interested
Parties; First Administrative Review of Certain
Activated Carbon from the People’s Republic of
China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated August 27, 2008,
at Attachment I (‘‘Surrogate Country List’’).
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21319
development pursuant to section
773(c)(4) of the Act, is a significant
producer of subject merchandise, and
has publicly available and reliable data.
Accordingly, the Department has
selected India as the surrogate country
for purposes of valuing the FOPs
because it meets the Department’s
criteria for surrogate country selection.
Affiliation—GHC
Section 771(33) of the Act, provides
that ‘‘the following persons shall be
considered to be ‘affiliated’ or ‘affiliated
persons’ ’’:
(A) Members of a family, including
brothers and sisters (whether by the
whole or half blood), spouse, ancestors,
and lineal descendants.
(B) Any officer or director of an
organization and such organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly
owning, controlling, or holding with
power to vote, 5 percent or more of the
outstanding voting stock or shares of
any organization and such organization.
(F) Two or more persons directly or
indirectly controlling, controlled by, or
under common control with, any
person.
(G) Any person who controls any
other person and such other person.
Additionally, section 771(33) of the
Act stipulates that: ‘‘For purposes of this
paragraph, a person shall be considered
to control another person if the person
is legally or operationally in a position
to exercise restraint or direction over the
other person.’’
Based on the evidence on the record
in this administrative review including
information found in GHC’s
questionnaire responses, the
Department preliminarily finds GHC
affiliated with Beijing Pacific Activated
Carbon Products Co., Ltd. (‘‘Beijing
Pacific’’), an exporter of the subject
merchandise, Cherishmet Inc.
(‘‘Cherishmet’’), a U.S. importer of the
subject merchandise, Ningxia Guanghua
Activated Carbon Company (‘‘GH’’), a
domestic reseller of the merchandise
under consideration, and Company A12
pursuant to sections 771(33) (E), (F) and
12 The identity of this company is business
proprietary information; for further discussion of
this company, see Memorandum to Catherine
Bertrand, Program Manager, AD/CVD Operations,
Office 9, from Robert Palmer, Case Analyst, AD/
CVD Operations, Office 9, re; Preliminary
Determination in the Antidumping Duty
Administrative Review of Certain Activated Carbon
from the People’s Republic of China: Affiliation
Memorandum of Ningxia Guanghua Cherishmet
Activated Carbon Co. Ltd., (April 30, 2009) (‘‘GHC
Affiliation Memo’’).
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(G) of the Act, based on ownership and
common control.
We find that in addition to being
affiliated, the collapsing criterion of
significant potential for manipulation of
price exists among Beijing Pacific,
Cherishmet, GH, and GHC for the
following reasons. There is a level of
common ownership between and among
these companies: (a) Cherishmet owns
Beijing Pacific and a significant share of
GHC and (b) GH owns a significant
share of GHC. Moreover, a significant
level of common control exists among
these companies: (a) The owner of
Cherishmet is a member of Beijing
Pacific and GHC’s board of directors; (b)
Cherishmet appointed the general
manager and board member of Beijing
Pacific to GHC’s board of directors; (c)
GH and GHC share board of directors,
management, and employees. Further,
we find that the operations of Beijing
Pacific, Cherishmet, GH, and GHC are
sufficiently intertwined. Specifically,
Beijing Pacific and GHC share sales
information with Cherishmet. Finally,
certain information contained within
GHC’s supplemental questionnaire
responses indicates that Cherishmet sets
the U.S. sales prices for Beijing Pacific
and GHC. See 19 CFR 351.401(f)(1) and
(2).13
Furthermore, we note that the factors
listed in 19 CFR 351.401(f)(2) are not
exhaustive, and in the context of an
NME investigation or administrative
review, other factors unique to the
relationship of business entities within
the NME may lead the Department to
determine that collapsing is either
warranted or unwarranted, depending
on the facts of the case. See Hontex
Enterprises, Inc. v. United States, Slip
Op. 03–17, 36 (February 13, 2003)
(noting that the application of
collapsing in the NME context may
differ from the standard factors listed in
the regulation). Additionally, the
Department may consider export
decisions in its collapsing analysis. See
13 19 CFR 351.401(f)(1) states that the Department
will treat ‘‘two or more affiliated producers as a
single entity where those producers have
production facilities for similar or identical
products that would not require substantial
retooling of either facility in order to restructure
manufacturing priorities and the Secretary
concludes that there is a significant potential for the
manipulation of price or production.’’ Further, 19
CFR 351.401(f)(2) states that ‘‘in identifying a
significant potential for the manipulation of price
or production, the factors the Secretary may
consider include: (i) The level of common
ownership; (ii) The extent to which managerial
employees or board members of one firm sit on the
board of directors of an affiliated firm; and (iii)
Whether operations are intertwined, such as
through the sharing of sales information,
involvement in production and pricing decisions,
the sharing of facilities or employees, or significant
transactions between the affiliated producers.’’
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Hontex Enterprises v. United States, 342
F. Supp. 2d 1225, 1230–34 (CIT 2004)
(‘‘Hontex II’’). Furthermore, the
Department may expand the marketeconomy inquiry into the potential for
manipulation to include NME exporters’
export decisions, rather than whether or
not the companies share production
facilities. See Hontex II.
Accordingly, the Department finds
Beijing Pacific, Cherishmet, GH and
GHC as a single entity for purposes of
this administrative review. See 19 CFR
351.401(f). With respect to Company A,
based on evidence on the record and
evidence presented in GHC’s
questionnaire responses, the
Department preliminarily determines
that Company A is not a single entity
with GHC. See 19 CFR 351.401(f). For a
detailed discussion of this issue, see
GHC Affiliation Memo.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the
Act provide that, if necessary
information is not available on the
record, or if an interested party: (A)
Withholds information that has been
requested by the Department; (B) fails to
provide such information in a timely
manner or in the form or manner
requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly
impedes a proceeding under the
antidumping statute; or (D) provides
such information but the information
cannot be verified, the Department
shall, subject to subsection 782(d) of the
Act, use facts otherwise available in
reaching the applicable determination.
Section 782(c)(1) of the Act provides
that if an interested party ‘‘promptly
after receiving a request from {the
Department} for information, notifies
{the Department} that such party is
unable to submit the information
requested in the requested form and
manner, together with a full explanation
and suggested alternative forms in
which such party is able to submit the
information,’’ the Department may
modify the requirements to avoid
imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides
that, if the Department determines that
a response to a request for information
does not comply with the request, the
Department will inform the person
submitting the response of the nature of
the deficiency and shall, to the extent
practicable, provide that person the
opportunity to remedy or explain the
deficiency. If that person submits
further information that continues to be
unsatisfactory, or this information is not
submitted within the applicable time
limits, the Department may, subject to
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section 782(e) of the Act, disregard all
or part of the original and subsequent
responses, as appropriate.
Section 782(e) of the Act states that
the Department shall not decline to
consider information deemed
‘‘deficient’’ under section 782(d) if: (1)
The information is submitted by the
established deadline; (2) the information
can be verified; (3) the information is
not so incomplete that it cannot serve as
a reliable basis for reaching the
applicable determination; (4) the
interested party has demonstrated that it
acted to the best of its ability in
providing the information and meeting
the requirements established by the
Department; and (5) the information can
be used without undue difficulties.
However, section 776(b) of the Act
states that if the Department ‘‘finds that
an interested party has failed to
cooperate by not acting to the best of its
ability to comply with a request for
information from the administering
authority or the Commission, the
administering authority or the
Commission * * *, in reaching the
applicable determination under this
title, may use an inference that is
adverse to the interests of that party in
selecting from among the facts
otherwise available.’’ See also
Statement of Administrative Action
accompanying the Uruguay Round
Agreements Act, H.R. Rep. No. 103–316,
Vol. 1, at 870 (1994) (SAA), reprinted in
1994 U.S.C.C.A.N. 4040, 4198–99.
Adverse inferences are appropriate ‘‘to
ensure that the party does not obtain a
more favorable result by failing to
cooperate than if it had cooperated
fully.’’ Id. An adverse inference may
include reliance on information derived
from the petition, the final
determination in the investigation, any
previous review, or any other
information placed on the record. See
section 776(b) of the Act.
CCT
On August 19, 2008, CCT requested to
be excused from reporting FOP data for
certain Chinese producers. On
September 30, 2008, the Department
requested additional information from
CCT regarding its exclusion requests.
On October 10, 2008, CCT responded
and provided detailed information
regarding its producers and production
quantities. On October 17, 2008, the
Department notified CCT that due to the
large numbers of producers that
supplied CCT during the POR, its
request to be excused from reporting
certain FOP data would be granted. See
the Department’s Letter to CCT dated
October 17, 2008. Specifically, the
Department did not require CCT to
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report FOP data for the following
producers: (1) Datong Nanjiao Huiyuan
A/C Co. Ltd.; (2) Datong Fuping
Activated Carbon Co., Ltd.; (3) Hongke
Activated Carbon Co., Ltd.; (4) Ningxia
Luyuangheng Activated Carbon Co.,
Ltd.; (5) Datong Hongtai Activated
Carbon Co., Ltd.; and (6) Shanxi
Xuanzhong Chemical Industry Co., Ltd.
Id.
The Department also notified CCT
that it would not be required to report
FOP data for products that were
produced prior to the POR, as indicated
in CCT’s October 11, 2008, response.
Furthermore, the Department notified
CCT that it was not required to report
FOP data for products that were
purchased by and not produced by
CCT’s producers, as indicated in CCT’s
October 11, 2008, response.
Additionally, the Department notified
CCT that, upon CCT’s acceptance of the
terms of the FOP data exclusions, the
Department shall determine the
appropriate facts available to apply, in
lieu of the actual FOP data, to the
corresponding U.S. sales of subject
merchandise. Id.
Thus, in accordance with section
776(a)(1) of the Act, the Department is
applying facts available to determine the
normal value for the sales
corresponding to the FOP data CCT was
excused from reporting. Due to the
proprietary nature of the factual
information concerning these producers,
these issues are addressed in a separate
business proprietary memorandum
where a detailed explanation of the facts
available calculation is provided. See
Memorandum to Catherine Bertrand,
Program Manager, AD/CVD Operations,
Office 9, from Irene Gorelik, Senior Case
Analyst, AD/CVD Operations, Office 9:
Preliminary Results Analysis
Memorandum for Calgon Carbon
(Tianjin) Co., Ltd., in the Antidumping
Duty Administrative Review of Certain
Activated Carbon from the People’s
Republic of China, dated April 30, 2009
(‘‘CCT Prelim Analysis Memo’’).
Jacobi
On September 15, 2008, Jacobi
requested to be excused from reporting
FOP data for certain Chinese producers.
On September 30, 2008, the Department
requested additional information from
Jacobi regarding its exclusion requests.
On October 10, 2008, Jacobi responded
and provided detailed information
regarding its producers and production
quantities. On October 20, 2008, the
Department notified Jacobi that due to
the large numbers of producers that
supplied Jacobi during the POR, Jacobi
would be excused from reporting certain
FOP data. See the Department’s Letter to
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Jacobi dated October 20, 2008.
Specifically, the Department did not
require Jacobi to report FOP data for its
five smallest producers.14 Additionally,
the Department notified Jacobi that it
was not required to report FOP data for
products that were produced by the four
largest producers prior to the POR, as
indicated in Jacobi’s October 11, 2008,
request. Thus, the Department
determined that upon Jacobi’s
acceptance of the exclusion terms, the
Department would determine the
appropriate facts available to apply, in
lieu of the actual FOP data for products
produced prior to the POR for the four
largest producers, to the corresponding
U.S. sales of subject merchandise.
Lastly, as indicated in Jacobi’s October
10, 2008, response, Jacobi’s four largest
producers purchased certain quantities
of activated carbon from unaffiliated
suppliers, but did not sell any of the
purchased activated carbon to Jacobi.
Thus, the Department notified Jacobi
that if this were indeed the case, it
would be unnecessary for Jacobi to
report the FOPs for such purchases to
the Department because these products
were not sold to Jacobi. See Jacobi
Producers’ Exclusion Letter.
In accordance with section 776(a)(1)
of the Act, the Department is applying
facts available to determine the normal
value for the sales corresponding to the
FOP data that Jacobi was excused from
reporting. Due to the proprietary nature
of the factual information concerning
these producers, these issues are
addressed in a separate business
proprietary memorandum where a
detailed explanation of the facts
available calculation is provided. See
Memorandum to Catherine Bertrand,
Program Manager, AD/CVD Operations,
Office 9, from Julia Hancock, Senior
Case Analyst, AD/CVD Operations,
Office 9: Preliminary Results Analysis
Memorandum for Jacobi Carbons AB,
Tianjin Jacobi International Trading Co.,
Ltd., and Jacobi Carbons, Inc.’s
(collectively ‘‘Jacobi’’) in the
Antidumping Duty Administrative
Review of Certain Activated Carbon
from the People’s Republic of China,
dated April 30, 2009 (‘‘Jacobi Prelim
Analysis Memo’’).
GHC
On September 12, 2008, GHC
requested to be excused from reporting
14 The names of these producers are business
proprietary information thus not available for
public summary. See the Department’s letter to
Jacobi, dated October 20, 2008, for the names of
these producers (‘‘Jacobi Producers’ Exclusion
Letter’’).
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FOP data for a Chinese producer.15 On
October 17, 2008, the Department
notified GHC that because the FOP data
for this Chinese producer are of limited
quantity and GHC states it produces
comparable products, the Department
was excusing GHC from providing the
Chinese producer’s FOP data. See the
Department’s Letter to GHC dated
October 17, 2008. Thus, the Department
determined that upon GHC’s acceptance
of the exclusion terms, the Department
would determine the appropriate facts
available to apply, in lieu of the actual
FOP data for products produced by the
excluded producer.
Thus, in accordance with sections
776(a)(1) of the Act, the Department is
applying facts available to determine the
normal value for the sales
corresponding to the FOP data that GHC
was excused from reporting. Due to the
proprietary nature of the factual
information concerning these producers,
these issues are addressed in a separate
business proprietary memorandum
where a detailed explanation of the facts
available calculation is provided. See
Memorandum to Catherine Bertrand,
Program Manager, AD/CVD Operations,
Office 9, from Robert Palmer, Case
Analyst, AD/CVD Operations, Office 9:
Preliminary Results Analysis
Memorandum for Ningxia Guanghua
Cherishmet Activated Carbon Co. Ltd.
(‘‘GHC’’) in the Antidumping Duty
Administrative Review of Certain
Activated Carbon from the People’s
Republic of China, dated April 30, 2009
(‘‘GHC Prelim Analysis Memo’’).
Jilin
As stated in the ‘‘Respondent
Selection’’ section above, the
Department issued the NME
questionnaire to Jilin on August 5, 2008.
On August 26, 2008, the Department
granted Jilin an extension of seven
business days to September 5, 2008, in
which to submit its Section A
questionnaire response. However, the
Department was not contacted by Jilin,
nor did it receive a response to section
A of the Department’s questionnaire by
the extended deadline (i.e., September
5, 2008). Moreover, the Department did
not receive Jilin’s response to sections C
and D of the questionnaire by the
established deadline (i.e., September 11,
2008).16 However, the Department
15 The name of this producer is business
proprietary information thus not available for
public summary. See the Department’s letter to
Cherishmet, dated October 27, 2008, for the name
of this producer (‘‘Cherishmet Producers’ Exclusion
Letter’’).
16 Although Jilin contacted us on September 11,
2008, withdrawing its request for an administrative
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provided Jilin with another opportunity
to explain why it had not submitted
responses to sections A, C, and D of the
August 5, 2008, questionnaire, and
requested that it do so by September 19,
2008.17 As stated above in the
‘‘Respondent Selection’’ section, on
September 15, 2008, counsel to Jilin
filed a letter stating that Jilin would not
participate as a mandatory respondent
in this administrative review.18
Therefore, the Department finds it
appropriate to rely on the facts
otherwise available in order to
determine a margin for Jilin for
purposes of these preliminary results,
pursuant to section 776(a)(2) of the
Act.19
As stated above, section 776(b) of the
Act provides that, if the Department
finds that an interested party fails to
cooperate by not acting to the best of its
ability to comply with requests for
information, the Department may use an
inference that is adverse to the interests
of that party in selecting from the facts
otherwise available. See also Notice of
Final Results of Antidumping Duty
Administrative Review: Stainless Steel
Bar from India, 70 FR 54023, 54025–26
(September 13, 2005); and Notice of
Final Determination of Sales at Less
Than Fair Value and Final Negative
Critical Circumstances: Carbon and
Certain Alloy Steel Wire Rod from
Brazil, 67 FR 55792, 55794–96 (August
30, 2002). Adverse inferences may be
employed ‘‘to ensure that the party does
not obtain a more favorable result by
failing to cooperate than if it had
cooperated fully.’’ See SAA at 870. As
a result of Jilin’s termination of
participation from the instant
proceeding, the Department is not
granting Jilin a separate rate and
considers Jilin part of the PRC-wide
entity. See ‘‘PRC-Wide Entity and
Selection of Adverse Facts Available
Rate’’ section below. See also the
‘‘Corroboration’’ section below for a
review, Norit America, Inc. and Calgon Carbon
Corporation (‘‘Petitioners’’) requested a review of
Jilin; thus, we informed Jilin in the September 12,
2008, letter that it is still under review.
17 See Letter from Catherine Bertrand, Program
Manager, Regarding Antidumping Administrative
Review of Certain Activated Carbon from the
People’s Republic of China: Withdrawal of Jilin’s
Request for Administrative Review (September 12,
2008).
18 See Letter from Jilin Regarding Activated
Carbon from the People’s Republic of China and
Termination of Jilin’s Participation As A Mandatory
Respondent (September 15, 2008).
19 See, e.g., Certain Preserved Mushrooms from
the People’s Republic of China: Partial Rescission
and Preliminary Results of the Sixth Administrative
Review, 71 FR 11183 (March 6, 2006) (unchanged
in final results); Stainless Steel Sheet and Strip in
Coils From Japan: Preliminary Results of
Antidumping Duty Administrative Review, 70 FR
18369 (April 11, 2005) (unchanged in final results).
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discussion of the probative value of the
PRC-wide rate of 228.11 percent rate.
PRC-Wide Entity and Selection of
Adverse Facts Available (‘‘AFA’’) Rate
As noted above, the Department
determined that, as a result of Jilin’s
termination of participation from the
instant proceeding, the Department is
not granting Jilin a separate rate and
considers Jilin part of the PRC-wide
entity. Thus, the Department finds that
the PRC-wide entity, including Jilin,
withheld requested information, failed
to provide information in a timely
manner and in the form requested, and
significantly impeded this proceeding.
Moreover, by refusing to answer the
Department’s questionnaire, the PRCwide entity, including Jilin, failed to
cooperate to the best of its ability.
Therefore, the Department must rely on
adverse facts otherwise available in
order to determine a margin for the PRCwide entity, pursuant to section
776(a)(2)(A), (B), (C) and 776(b) of the
Act.20 By doing so, the Department
ensures that the companies that are part
of the PRC-wide entity will not obtain
a more favorable result by failing to
cooperate than had they cooperated
fully in this review.
In deciding which facts to use as
AFA, section 776(b) of the Act and 19
CFR 351.308(c)(1) authorize the
Department to rely on information
derived from (1) the petition, (2) a final
determination in the investigation, (3)
any previous review or determination,
or (4) any information placed on the
record. In reviews, the Department
normally selects, as AFA, the highest
rate on the record of any segment of the
proceeding. See, e.g., Tapered Roller
Bearings and Parts Thereof, Finished
and Unfinished, From the People’s
Republic of China: Final Results of
Antidumping Duty Administrative
Review, 74 FR 3987, 3989 (January 22,
2009). The Court of International Trade
(‘‘CIT’’) and the Federal Circuit have
consistently upheld the Department’s
practice in this regard. See Rhone
Poulenc, Inc. v. United States, 899 F.2d
1185, 1190 (Fed. Circ. 1990) (‘‘Rhone
Poulenc’’); NSK Ltd. v. United States,
20 See, e.g., Non-Malleable Cast Iron Pipe Fittings
from the People’s Republic of China: Final Results
of Antidumping Duty Administrative Review, 71 FR
69546 (December 1, 2006) and accompanying Issues
and Decision Memorandum at Comment 1; see also
Certain Frozen Warmwater Shrimp from the
Socialist Republic of Vietnam: Preliminary Results
of the First Administrative Review and New Shipper
Review, 72 FR 10689, 10692 (March 9, 2007)
(decision to apply total AFA to the NME-wide
entity), unchanged in Certain Frozen Warmwater
Shrimp From the Socialist Republic of Vietnam:
Final Results of the First Antidumping Duty
Administrative Review and First New Shipper
Review, 72 FR 52052 (September 12, 2007).
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346 F. Supp. 2d 1312, 1335 (CIT 2004)
(upholding a 73.55 percent total AFA
rate, the highest available dumping
margin from a different respondent in
an LTFV investigation); see also
Kompass Food Trading Int’l v. United
States, 24 CIT 678, 689 (2000)
(upholding a 51.16 percent total AFA
rate, the highest available dumping
margin from a different, fully
cooperative respondent); and Shanghai
Taoen International Trading Co., Ltd. v.
United States, 360 F. Supp 2d 1339,
1348 (CIT 2005) (upholding a 223.01
percent total AFA rate, the highest
available dumping margin from a
different respondent in a previous
administrative review).
The Department’s practice when
selecting an adverse rate from among
the possible sources of information is to
ensure that the margin is sufficiently
adverse ‘‘as to effectuate the purpose of
the facts available role to induce
respondents to provide the Department
with complete and accurate information
in a timely manner.’’ See Static Random
Access Memory Semiconductors from
Taiwan; Final Determination of Sales at
Less than Fair Value, 63 FR 8909, 8932
(February 23, 1998). The Department’s
practice also ensures ‘‘that the party
does not obtain a more favorable result
by failing to cooperate than if it had
cooperated fully.’’ See SAA at 870; see
also Final Determination of Sales at
Less than Fair Value: Certain Frozen
and Canned Warmwater Shrimp from
Brazil, 69 FR 76910, 76912 (December
23, 2004); D&L Supply Co. v. United
States, 113 F. 3d 1220, 1223 (Fed. Cir.
1997). In choosing the appropriate
balance between providing respondents
with an incentive to respond accurately
and imposing a rate that is reasonably
related to the respondent’s prior
commercial activity, selecting the
highest prior margin ‘‘reflects a common
sense inference that the highest prior
margin is the most probative evidence of
current margins, because, if it were not
so, the importer, knowing of the rule,
would have produced current
information showing the margin to be
less.’’ Rhone Poulenc, 899 F.2d at 1190.
Consistent with the statute, court
precedent, and its normal practice, the
Department has assigned the rate of
228.11 percent, the highest rate on the
record of any segment of the proceeding,
to the PRC-wide entity, which includes
Jilin, as AFA. See e.g., Certain Frozen
Warmwater Shrimp from the People’s
Republic of China: Notice of Final
Results And Rescission, In Part, of 2004/
2006 Antidumping Duty Administrative
and New Shipper Reviews, 72 FR 52049
(September 12, 2007). See
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‘‘Corroboration of Information’’ section
below.
Corroboration of Information
Section 776(c) of the Act requires that
the Department corroborate, to the
extent practicable, secondary
information on which it relies as facts
available. ‘‘Secondary information’’ is
described in the SAA as ‘‘information
derived from the petition that gave rise
to the investigation or review, the final
determination concerning subject
merchandise, or any previous review
under section 751 concerning the
subject merchandise.’’ See SAA at 870.
The SAA states that ‘‘corroborate’’
means to determine that the information
has probative value. To be considered
corroborated, information must be
found to be both reliable and relevant.21
The Department is applying as AFA the
highest rate from any segment of this
administrative proceeding, which is the
rate currently applicable to all exporters
subject to the PRC-wide rate, including
Jilin. The AFA rate in the current review
(i.e., the PRC-wide rate of 228.11
percent) represents the highest rate from
the petition in the LTFV investigation.
See Order.
For purposes of corroboration, the
Department will consider whether that
margin is both reliable and relevant. The
AFA rate the Department is applying for
the current review was corroborated in
the LTFV investigation.22 No
information has been presented in the
current review that calls into question
the reliability of this information. Thus,
the Department finds the information
continues to be reliable.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal to determine whether a margin
continues to have relevance. Where
circumstances indicate that the selected
21 See
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) unchanged in 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; Final
Results of Antidumping Duty Administrative
Reviews and Termination in Part, 62 FR 11825
(March 13, 1997).
22 See Final Determination of Sales at Less Than
Fair Value: Certain Activated Carbon from the
People’s Republic of China, 72 FR 9508 (March 2,
2007) (‘‘Activated Carbon LTFV’’). An amended
final determination was published on March 30,
2007. See Notice of Amended Final Determination
of Sales at Less Than Fair Value: Certain Activated
Carbon from the People’s Republic of China, 72 FR
15099 (March 30, 2007).
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margin is not appropriate as AFA, the
Department will disregard the margin
and determine an appropriate margin.
For example, in Fresh Cut Flowers from
Mexico; Final Results of Antidumping
Administrative Review, 61 FR 6812,
6814 (February 22, 1996), the
Department disregarded the highest
margin in that case as adverse best
information available (the predecessor
to facts available) because the margin
was based on another company’s
uncharacteristic business expense
resulting in an unusually high margin.
The information used in calculating this
margin was based on sales and
production data submitted by the
petitioner in the LTFV investigation,
together with the most appropriate
surrogate value information available to
the Department chosen from
submissions by the parties in the LTFV
investigation, as well as information
gathered by the Department itself. See
Activated Carbon LTFV. Furthermore,
the calculation of this margin was
subject to comment from interested
parties in the proceeding. As there is no
information on the record of this review
that demonstrates that this rate is not
appropriate to use as AFA, the
Department determines that this rate has
relevance.
As the 228.11 percent rate is both
reliable and relevant, the Department
determines that it has probative value.
Accordingly, the Department
determines that the calculated rate of
228.11 percent, which is the current
PRC-wide rate, is in accord with the
requirement of section 776(c) of the Act
that secondary information be
corroborated to the extent practicable
(i.e., that it have probative value). The
Department has assigned this AFA rate
to exports of the subject merchandise by
the PRC-wide entity, which includes
Jilin.
Separate Rates
In the Separate Rates Application and
Certification Letter,23 the Department
notified parties of the recent application
and certification process by which
exporters and producers may obtain
separate rate status in an NME review.
The process requires exporters and
producers to submit a separate rate
status certification and/or application.
See also Policy Bulletin 05.1: SeparateRates Practice and Application of
Combination Rates in Antidumping
Investigations involving Non-Market
23 See the Department’s letter to interested parties
entitled, ‘‘Administrative Review of Certain
Activated Carbon from the People’s Republic of
China: Separate Rate Application and Separate Rate
Certification,’’ dated August 15, 2008 (‘‘Separate
Rates Application and Certification Letter’’).
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21323
Economy Countries, (April 5, 2005)
(‘‘Policy Bulletin 05.1’’), available at:
https://ia.ita.doc.gov. However, the
standard for eligibility for a separate rate
(which is whether a firm can
demonstrate an absence of both de jure
and de facto government control over its
export activities) has not changed.
A designation of a country as an NME
remains in effect until it is revoked by
the Department. See section
771(18)(c)(i) of the Act. In proceedings
involving NME countries, it is the
Department’s practice to begin with a
rebuttable presumption that all
companies within the country are
subject to government control and thus
should be assessed a single antidumping
duty rate. See, e.g., Policy Bulletin 05.1;
see also Notice of Final Determination
of Sales at Less Than Fair Value, and
Affirmative Critical Circumstances, In
Part: Certain Lined Paper Products from
the People’s Republic of China, 71 FR
53079, 53080 (September 8, 2006); Final
Determination of Sales at Less Than
Fair Value and Final Partial Affirmative
Determination of Critical
Circumstances: Diamond Sawblades
and Parts Thereof from the People’s
Republic of China, 71 FR 29303, 29307
(May 22, 2006). It is the Department’s
policy to assign all exporters of
merchandise subject to investigation in
an NME country this single rate unless
an exporter can affirmatively
demonstrate that it is sufficiently
independent so as to be entitled to a
separate rate. Id. Exporters can
demonstrate this independence through
the absence of both de jure and de facto
government control over export
activities. Id. The Department analyzes
each entity exporting the subject
merchandise under a test arising from
the Notice of 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 further developed in 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’’).
However, if the Department determines
that a company is wholly foreign-owned
or located in a market economy, then a
separate rate analysis is not necessary to
determine whether it is independent
from government control. See, e.g., Final
Results of Antidumping Duty
Administrative Review: Petroleum Wax
Candles from the People’s Republic of
China, 72 FR 52355, 52356 (September
13, 2007).
Excluding the companies selected for
individual review, the Department
received separate rate applications or
certifications from the following
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companies: Ningxia Huahui Activated
Carbon Co., Ltd.; Ningxia Lingzhou
Foreign Trade Co., Ltd.; Tangshan Solid
Carbon Co., Ltd.; Tianjin Maijin
Industries Co., Ltd.; Datong Municipal
Yunguang Activated Carbon Co., Ltd.;
Hebei Foreign Trade Advertisement
Company; and Beijing Pacific Activated
Carbon Products Co., Ltd. Additionally,
the Department received completed
responses to the Section A portion of
the NME questionnaire from CCT,
Jacobi, and GHC, which contained
information pertaining to the
companies’ eligibility for a separate rate.
However, Ningxia Mineral & Chemical
Limited, one of the companies upon
which the Department initiated an
administrative review that has not been
rescinded, did not submit either a
separate-rate application or certification.
Therefore, because Ningxia Mineral &
Chemical Limited did not demonstrate
its eligibility for separate rate status, it
has now been included as part of the
PRC-wide entity. Also, as noted above,
Jilin has not participated in this
administrative review. Therefore, Jilin
(including affiliate Jilin Province Bright
Future Industry and Commerce Co.,
Ltd.) has failed to demonstrate its
eligibility for a separate rate.
Separate Rate Recipients
1. Wholly Foreign-Owned
CCT and Jacobi have reported that
they are wholly foreign-owned. CCT
reported that 100 percent of its shares
are held by Calgon Carbon Corporation,
which is located in the United States.
See CCT’s Section A Questionnaire
Response dated September 16, 2008, at
pages 2–4. Jacobi reported that it is
wholly owned by a company located in
a market-economy country, Sweden. See
Jacobi’s Section A Questionnaire
Response dated September 5, 2008 at
page 3. Therefore, there is no PRC
ownership of CCT or Jacobi, and
because the Department has no evidence
indicating that either company is under
the control of the PRC, a separate rates
analysis is not necessary to determine
whether they are independent from
government control.24 Additionally, one
of the exporters under review not
selected for individual review,
Tangshan Solid Carbon Co., Ltd.,
reported in its separate-rate certification
24 See Brake Rotors From the People’s Republic of
China: Preliminary Results and Partial Rescission of
the Fourth New Shipper Review and Rescission of
the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001),
unchanged in the final determination; Notice of
Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People’s
Republic of China, 64 FR 71104 (December 20,
1999).
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that it is 100 percent foreign owned. See
Tangshan Solid Carbon Co. Ltd.’s
Separate Rate Certification dated
September 15, 2008, at 2. Accordingly,
the Department has preliminarily
granted separate rate status to CCT,
Jacobi, and Tangshan Solid Carbon Co.
Ltd.
2. Joint Ventures Between Chinese and
Foreign Companies or Wholly ChineseOwned Companies
GHC 25 and six of the separate rate
applicants in this administrative review
stated that they are either joint ventures
between Chinese and foreign companies
or are wholly Chinese-owned
companies. The Department has
analyzed whether GHC and the
separate-rate applicants have
demonstrated the absence of de jure and
de facto governmental control over their
respective export activities.
a. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) An absence
of restrictive stipulations associated
with an individual exporter’s business
and export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) any other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by GHC and
the six separate rate applicants supports
a preliminary finding of de jure absence
of government control based on the
following: (1) An absence of restrictive
stipulations associated with the
individual exporter’s business and
export licenses; (2) there are applicable
legislative enactments decentralizing
control of the companies; and (3) there
are formal measures by the government
decentralizing control of companies.
See, e.g., GHC’s Section A
Questionnaire Response dated
September 5, 2008, at pages 2–4; Datong
Municipal Yunguang Activated Carbon
Co., Ltd.’s Separate Rate Certification
dated September 15, 2008, at Exhibit 3;
Hebei Foreign Trade and Advertising
Corp.’s Separate Rate Certification dated
September 15, 2008, at 3–4.
b. Absence of De Facto Control
Typically the Department considers
four factors in evaluating whether each
respondent is subject to de facto
government control of its export
25 See GHC’s Section A Questionnaire Response
dated September 5, 2008, at pages 2–4. See also
Beijing Pacific Activated Carbon Products Co.,
Ltd.’s Separate Rate Certification dated September
15, 2008 at Exhibit 4.
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functions: (1) Whether the export prices
are set by or are subject to the approval
of a government agency; (2) whether the
respondent has authority to negotiate
and sign contracts and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses. See Silicon Carbide, 59 FR at
22586–87; see also Notice of Final
Determination of Sales at Less Than
Fair Value: Furfuryl Alcohol From the
People’s Republic of China, 60 FR
22544, 22545 (May 8, 1995). The
Department has determined that an
analysis of de facto control is critical in
determining whether respondents are,
in fact, subject to a degree of
government control which would
preclude the Department from assigning
separate rates. The evidence provided
by GHC and the six separate rate
applicants supports a preliminary
finding of de facto absence of
government control based on the
following: (1) The companies set their
own export prices independent of the
government and without the approval of
a government authority; (2) the
companies have authority to negotiate
and sign contracts and other
agreements; (3) the companies have
autonomy from the government in
making decisions regarding the
selection of management; and (4) there
is no restriction on any of the
companies’ use of export revenue. See,
e.g., GHC’s Section A Questionnaire
Response dated September 5, 2008, at
pages 2–4; Ningxia Lingzhou Foreign
Trade Company’s Separate Rate
Application dated October 15, 2008, at
10 and Supplemental Response dated
January 8, 2009, at 3–4; Tianjin Maijin
Industries Co., Ltd.’s Separate Rate
Certification dated September 9, 2008,
at Exhibit 1. Therefore, the Department
preliminarily finds that GHC and six
separate-rate applicants have
established that they qualify for a
separate rate under the criteria
established by Silicon Carbide and
Sparklers.
Separate Rate Calculation
As stated previously, this review
covers 14 exporters. Of those, the
Department selected two exporters, CCT
and Jacobi (including affiliates), as
mandatory respondents in this review
and one voluntary respondent, GHC
(including affiliate Beijing Pacific
Activated Carbon Products Co., Ltd.). As
stated above, two companies, Ningxia
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Mineral & Chemical Limited and Jilin
(including affiliate, Jilin Province Bright
Future Industry and Commerce Co.,
Ltd.), are part of the PRC-Wide entity,
and thus, are not entitled to a separate
rate. The remaining six companies
submitted timely information as
requested by the Department and
remain subject to this review as
cooperative separate rate respondents.
For the exporters subject to this
review that were determined to be
eligible for separate rate status, but were
not selected as mandatory respondents,
the Department normally establishes a
simple-average margin based on an
average of the rates it calculated for the
mandatory respondents, excluding any
rates that are zero, de minimis, or based
entirely on AFA.26 Accordingly, for
these preliminary results, the rates
calculated for Jacobi and CCT
(excluding GHC, a voluntary
respondent) are applied as the rate for
non-selected separate entities. That rate
is 119.19 percent. Entities receiving this
rate are identified by name in the
‘‘Preliminary Results of Review’’ section
of this notice.
Date of Sale
CCT, Jacobi, and GHC reported the
invoice date as the date of sale because
they claim that, for their U.S. sales of
subject merchandise made during the
POR, the material terms of sale were
established on the invoice date. The
Department preliminarily determines
that the invoice date is the most
appropriate date to use as CCT’s,
Jacobi’s, and GHC’s date of sale in
accordance with 19 CFR 351.401(i) and
the Department’s long-standing practice
of determining the date of sale.27
Fair Value Comparisons
To determine whether sales of certain
activated carbon to the United States by
CCT, Jacobi, and GHC were made at less
than fair value, the Department
compared either export price (‘‘EP’’) or
constructed export price (‘‘CEP’’) to NV,
as described in the ‘‘U.S. Price,’’ and
‘‘Normal Value’’ sections below.
26 See, e.g., Wooden Bedroom Furniture From the
People’s Republic of China: Preliminary Results of
Antidumping Duty Administrative Review,
Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR
8273, 8279 (February 13, 2008) (unchanged in
Wooden Bedroom Furniture from the People’s
Republic of China: Final Results of Antidumping
Duty Administrative Review and New Shipper
Review, 73 FR 49162 (August 20, 2008)).
27 See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain
Frozen and Canned Warmwater Shrimp from
Thailand, 69 FR 76918 (December 23, 2004), and
accompanying Issues and Decision Memorandum at
Comment 10.
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U.S. Price
Export Price
In accordance with section 772(a) of
the Act, the Department calculated the
EP for a portion of sales to the United
States for GHC because the first sale to
an unaffiliated party was made before
the date of importation and the use of
CEP was not otherwise warranted. The
Department calculated EP based on the
price to unaffiliated purchasers in the
United States. In accordance with
section 772(c) of the Act, as appropriate,
the Department deducted from the
starting price to unaffiliated purchasers
foreign inland freight and brokerage and
handling. Each of these services was
either provided by an NME vendor or
paid for using an NME currency. Thus,
the Department based the deduction of
these movement charges on surrogate
values. Additionally, for international
freight provided by a market economy
provider and paid in U.S. dollars, the
Department used the actual cost per
kilogram of the freight. See Prelim
Surrogate Value Memo for details
regarding the surrogate values for
movement expenses.
Constructed Export Price
For all of CCT’s and Jacobi’s sales and
the majority of GHC’s sales, the
Department based U.S. price on CEP in
accordance with section 772(b) of the
Act, because sales were made on behalf
of the Chinese-based companies by a
U.S. affiliate to unaffiliated purchasers
in the United States. For these sales, the
Department based CEP on prices to the
first unaffiliated purchaser in the United
States. Where appropriate, the
Department made deductions from the
starting price (gross unit price) for
foreign movement expenses,
international movement expenses, U.S.
movement expenses, and appropriate
selling adjustments, in accordance with
section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1)
of the Act, the Department also
deducted those selling expenses
associated with economic activities
occurring in the United States. The
Department deducted, where
appropriate, commissions, inventory
carrying costs, interest revenue, credit
expenses, warranty expenses, and
indirect selling expenses. Where foreign
movement expenses, international
movement expenses, or U.S. movement
expenses were provided by PRC service
providers or paid for in Renminbi, the
Department valued these services using
surrogate values (see ‘‘Factor
Valuations’’ section below for further
discussion). For those expenses that
were provided by a market economy
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21325
provider and paid for in a market
economy currency, the Department used
the reported expense. However, the
Department has not used GHC’s
reported market economy international
freight expenses because they were not
provided by and paid for directly
through a market economy provider.28
Due to the proprietary nature of certain
adjustments to U.S. price, for a detailed
description of all adjustments made to
U.S. price for each company, see the
company specific analysis
memorandums, dated April 30, 2009.
CCT also requested that the
Department apply the ‘‘special rule’’ for
merchandise with value added after
importation and excuse CCT from
reporting U.S. resales of subject
merchandise further processed by
Calgon Carbon Corporation (‘‘CCC’’),
CCT’s U.S. parent company, in the
United States and the U.S. furtherprocessing cost information associated
with the resales. CCT made this request
with respect to all categories of U.S.
sales with further manufacturing and
provided further-processing cost data.
See CCT’s Section A Questionnaire
Response dated September 16, 2008, at
page 32 and Exhibit 11; see also CCT’s
Supplemental Section C Questionnaire
Response dated January 7, 2009 at
Exhibit 44–A. Petitioner NORIT
submitted comments on October 21,
2008, and December 23, 2008, arguing
that, among other concerns, CCT
overstated the significance of its further
manufacturing costs.
The Department preliminarily
determines that the ‘‘special rule’’ under
section 772(e) of the Act for
merchandise with value added after
importation applies to the sales made by
CCC in the United States. Section 772(e)
of the Act provides that, when the
subject merchandise is imported by an
affiliated person and the value added in
the United States by the affiliated
person is likely to exceed substantially
the value of the subject merchandise,
the Department shall determine the CEP
for such merchandise using the price to
an unaffiliated party of identical or
other subject merchandise if there is a
sufficient quantity of sales to provide a
reasonable basis for comparison, and the
Department determines that the use of
such sales is appropriate. If there is not
a sufficient quantity of such sales or if
the Department determines that using
the price to an unaffiliated party of
28 See Certain New Pneumatic Off-The-Road Tires
from the People’s Republic of China: Final
Affirmative Determination of Sales at Less Than
Fair Value and Partial Affirmative Determination of
Critical Circumstances, 73 FR 40485 (July 15, 2008)
and accompanying Issues and Decision
Memorandum at Comment 70.
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identical or other subject merchandise is
not appropriate, the Department may
use any other reasonable basis to
determine the CEP.
To determine whether the value
added is likely to exceed substantially
the value of the subject merchandise,
the Department estimated the value
added based on the difference between
the averages of the prices charged to the
first unaffiliated purchaser for the
merchandise as sold in the United
States and the averages of the prices
paid for the subject merchandise by the
affiliated purchaser, CCC. Based on the
information provided by CCT and the
Department’s analysis of this
information, the Department determined
that the estimated value added in the
United States by CCC accounted for at
least 65 percent of the price charged to
the first unaffiliated customer for the
merchandise as sold in the United
States. See 19 CFR 351.402(c); see also
Antifriction Bearings (other than
Tapered Roller Bearings) and Parts
Thereof from France, Germany, Italy,
Japan, Sweden, and the United
Kingdom: Final Results of Antidumping
Duty Administrative Reviews and
Revocation of Orders in Part, 66 FR
36551, 36555 (July 12, 2001) and
accompanying Issues and Decision
Memorandum at Comment 28 (‘‘AFBs’’).
Therefore, the Department preliminarily
determines that the value added is
likely to exceed substantially the value
of the subject merchandise.
For CCT, the Department
preliminarily determines that the
remaining quantity of sales of identical
or other subject merchandise to
unaffiliated persons are sufficient to
provide a reasonable basis for
comparison and that the use of these
sales is appropriate as a basis for
calculating margins of dumping on the
value-added merchandise. See section
772(e) of the Act; see also AFBs;
Memorandum to James C. Doyle,
Director, AD/CVD Operations, Office 9,
through Catherine Bertrand, Program
Manager, AD/CVD Operations, Office 9,
from Irene Gorelik, Senior Case Analyst,
Office 9: Special Rule for Merchandise
with Value Added after Importation for
the Antidumping Duty Administrative
Review of Certain Activated Carbon
from the People’s Republic of China,
dated April 30, 2009 (‘‘Special Rule
Memo’’).
Accordingly, the Department has
determined to apply the ‘‘special rule’’
to merchandise with value added after
importation to CCT’s U.S. resales of
subject merchandise further processed
by CCC in the United States and excuse
CCT from reporting these U.S. sales and
the U.S. further-processing cost
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17:03 May 06, 2009
Jkt 217001
information associated with the resales.
For purposes of these preliminary
results, the Department has applied the
weighted-average margin from CCT’s
other U.S. sales to the quantity of U.S.
further manufactured sales. See CCT
Prelim Analysis Memo.
Normal Value
Section 773(c)(1) of the Act provides
that the Department shall determine the
NV using a factors-of-production
methodology if the merchandise is
exported from an NME and the
information does not permit the
calculation of NV using home-market
prices, third-country prices, or
constructed value under section 773(a)
of the Act. The Department bases NV on
the FOPs because the presence of
government controls on various aspects
of non-market economies renders price
comparisons and the calculation of
production costs invalid under the
Department’s normal methodologies.
FOP Reporting Exclusions
As stated above, the Department
granted exclusions for certain nominal
producers to be excused from providing
FOP data for CCT, Jacobi, and GHC. As
the corresponding U.S. sales from the
material supplied by the excused
producers were reported in the U.S.
sales listing, the Department has
assigned FOPs for similar subject
merchandise that was produced by CCT,
Jacobi, and GHC, respectively, as facts
available, to those sales observations
associated with the excluded producers.
See CCT Prelim Analysis Memo, Jacobi
Prelim Analysis Memo and GHC Prelim
Analysis Memo.
Additionally, CCT has reported that
its individual producers could not
provide FOP data on a CONNUMspecific basis. See, e.g., CCT letter dated
March 17, 2009. Rather, these
individual producers have reported FOP
consumption data based on product
family codes, which are then batchtested by CCT to determine and assign
a CONNUM to the product family codes
based on a weighted-average calculation
of its producers’ FOP consumption. CCT
has provided detailed and potentially
verifiable information on the standards
used in the ordinary course of business
by CCT and its producers. See
Supplemental Section D Questionnaire
Response dated February 17, 2009. In
addition, CCT has provided samples of
FOP consumption data, reconciliation
worksheets, and FOP source
documentation used in the ordinary
course of business by its producers. See,
e.g., CCT’s Second Supplemental
Section D Questionnaire Response dated
March 13, 2009, at 2 and Exhibits FW–
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7, FW–9, FW–11, XX–4. Further, CCT
has explained that each of its producers
maintains records on the consumption
of all raw materials. CCT notes that its
producers do not track data during the
production process for four product
characteristics within the CONNUM:
apparent density, hardness, abrasion,
and ash content. However, CCT claims
that it has provided its FOP data based
on as much detail as the books and
records of its records and its producers’
records would allow. See CCT’s
Supplemental Section D Questionnaire
Response dated February 17, 2009, at 3–
7. Therefore, on the basis of the data
submitted by CCT, which the
Department intends to carefully
scrutinize at verification, the
Department preliminarily determines
that CCT’s FOP reporting methodology
is sufficient to preliminarily calculate
an accurate dumping margin.
Nonetheless, we are hereby notifying
CCT that it should begin to track all
records generated in the normal course
of business that would allow CCT and
its producers to report FOP
consumption in future segments of this
proceeding taking into account as many
CONNUM characteristics as possible.29
Additionally, as stated in Certain Tissue
Paper Products from the People’s
Republic of China, the Department also
notes that there is no reason to conclude
that respondents in future segments
would be unable to report FOPs on a
CONNUM-specific basis,
notwithstanding the fact that previous
respondents have been unable to do so,
based on the manner in which they
chose to maintain their records. See
Certain Tissue Paper Products from the
People’s Republic of China: Final
Results and Final Rescission, in Part, of
Antidumping Duty Administrative
Review, 73 FR 58113 (October 6, 2008)
and accompanying Issues and Decision
Memorandum at Comment 2.
In accordance with 19 CFR
351.408(c)(1), the Department will
normally use publicly available
information to value the FOPs, but
when a producer sources an input from
a market economy country and pays for
it in a market economy currency, the
Department may value the factor using
the actual price paid for the input.30
During the POR, Jacobi reported that it
29 See Certain Circular Welded Carbon Quality
Steel Line Pipe from the People’s Republic of China:
Final Determination of Sales at Less Than Fair
Value, 74 FR 14514 (March 31, 2009) and
accompanying Issues and Decision Memorandum at
Comment 1.
30 See Lasko Metal Products v. United States, 43
F.3d 1442, 1445–1446 (Fed. Cir. 1994) (affirming
the Department’s use of market-based prices to
value certain FOPs).
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purchased certain inputs from a market
economy supplier and paid for the
inputs in a market economy currency.
See Jacobi’s Section D Questionnaire
Response dated October 24, 2008, at D–
1–5 and Exhibit D–1–E. The Department
has a rebuttable presumption that
market economy input prices are the
best available information for valuing an
input when the total volume of the
input purchased from all market
economy sources during the period of
investigation or review exceeds 33
percent of the total volume of the input
purchased from all sources during the
period. See Antidumping
Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages,
Duty Drawback; and Request for
Comments, 71 FR 61716, 61717–18
(October 19, 2006) (‘‘Antidumping
Methodologies’’). In these cases, unless
case-specific facts provide adequate
grounds to rebut the Department’s
presumption, the Department will use
the weighted average market economy
purchase price to value the input.
Alternatively, when the volume of an
NME firm’s purchases of an input from
market economy suppliers during the
period is below 33 percent of its total
volume of purchases of the input during
the period, but where these purchases
are otherwise valid and there is no
reason to disregard the prices, the
Department will weight-average the
market economy purchase price with an
appropriate surrogate value (‘‘SV’’)
according to their respective shares of
the total volume of purchases, unless
case-specific facts provide adequate
grounds to rebut the presumption. See
Antidumping Methodologies. When a
firm has made market economy input
purchases that may have been dumped
or subsidized, are not bona fide, or are
otherwise not acceptable for use in a
dumping calculation, the Department
will exclude them from the numerator
of the ratio to ensure a fair
determination of whether valid market
economy purchases meet the 33-percent
threshold. See Antidumping
Methodologies.
The Department used the Indian
Import Statistics to value the raw
material and packing material inputs
that CCT, Jacobi, and GHC used to
produce the merchandise under
investigation during the POR, except
where listed below. With regard to both
the Indian import-based surrogate
values and the market economy input
values, the Department has disregarded
prices that the Department has reason to
believe or suspect may be subsidized.
The Department has reason to believe or
suspect that prices of inputs from India,
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Indonesia, South Korea, and Thailand
may have been subsidized. The
Department has found in other
proceedings that these countries
maintain broadly available, nonindustry-specific export subsidies and,
therefore, it is reasonable to infer that all
exports to all markets from these
countries may be subsidized.31 The
Department is also guided by the
statute’s legislative history that explains
that it is not necessary to conduct a
formal investigation to ensure that such
prices are not subsidized. See Omnibus
Trade and Competitiveness Act of 1988,
Conference Report to accompany H.R.
Rep. 100–576 at 590 (1988) reprinted in
1988 U.S.C.C.A.N. 1547, 1623–24; see
also Preliminary Determination of Sales
at Less Than Fair Value: Coated Free
Sheet Paper from the People’s Republic
of China, 72 FR 30758, 30763 n.6 (June
4, 2007) unchanged in Final
Determination of Sales at Less Than
Fair Value: Coated Free Sheet Paper
from the People’s Republic of China, 72
FR 60632 (October 25, 2007). Rather, the
Department bases its decision on
information that is available to it at the
time it makes its determination. See
Polyethylene Terephthalate Film, Sheet,
and Strip from the People’s Republic of
China: Preliminary Determination of
Sales at Less Than Fair Value, 73 FR
24552, 24559 (May 5, 2008), unchanged
in Polyethylene Terephthalate Film,
Sheet, and Strip from the People’s
Republic of China: Final Determination
of Sales at Less Than Fair Value, 73 FR
55039 (September 24, 2008). Therefore,
the Department has not used prices from
these countries in calculating the Indian
import-based surrogate values.
Additionally, the Department
disregarded prices from NME countries.
Finally, imports that were labeled as
originating from an ‘‘unspecified’’
country were excluded from the average
value, as the Department could not be
certain that they were not from either an
NME country or a country with general
export subsidies. See id.
Factor Valuations
In accordance with section 773(c) of
the Act, for subject merchandise
produced by CCT, Jacobi, and GHC, the
Department calculated NV based on the
FOPs reported by CCT, Jacobi, and GHC
for the POR. The Department used data
31 See Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Notice of
Preliminary Results and Preliminary Partial
Rescission of Antidumping Duty Administrative
Review, 70 FR 54007, 54011 (September 13, 2005)
(unchanged in the final results); China National
Machinery Import & Export Corporation v. United
States, 293 F. Supp. 2d 1334 (CIT 2003), as affirmed
by the Federal Circuit, 104 Fed. Appx. 183 (Fed.
Cir. 2004).
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21327
from the Indian Import Statistics and
other publicly available Indian sources
in order to calculate surrogate values for
CCT, Jacobi, and GHC’s FOPs (direct
materials, energy, and packing
materials) and certain movement
expenses. To calculate NV, the
Department multiplied the reported perunit factor quantities by publicly
available Indian surrogate values
(except as noted below). The
Department’s practice when selecting
the best available information for
valuing FOPs is to select, to the extent
practicable, surrogate values which are
product-specific, representative of a
broad market average, publicly
available, contemporaneous with the
POR and exclusive of taxes and duties.
See, e.g., Electrolytic Manganese
Dioxide From the People’s Republic of
China: Final Determination of Sales at
Less Than Fair Value, 73 FR 48195
(August 18, 2008) and accompanying
Issues and Decision Memorandum at
Comment 2.
As appropriate, the Department
adjusted input prices by including
freight costs to render them delivered
prices. Specifically, the Department
added to Indian import surrogate values
a surrogate freight cost using the shorter
of the reported distance from the
domestic supplier to the factory or the
distance from the nearest seaport to the
factory. This adjustment is in
accordance with the decision of the
Federal Circuit in Sigma Corp. v. United
States, 117 F. 3d 1401, 1408 (Fed. Cir.
1997). For a detailed description of all
surrogate values used for CCT, Jacobi,
and GHC, see Memorandum to the File
through Catherine Bertrand, Program
Manager, Office 9 from Blaine Wiltse,
Case Analyst, re; First Administrative
Review of Certain Activated Carbon
from the People’s Republic of China:
Surrogate Values for the Preliminary
Results (‘‘Prelim Surrogate Value
Memo’’).
In those instances where the
Department could not obtain publicly
available information contemporaneous
to the POR with which to value factors,
the Department adjusted the surrogate
values using, where appropriate, the
Indian Wholesale Price Index (‘‘WPI’’)
as published in the International
Financial Statistics of the International
Monetary Fund, a printout of which is
attached to the Prelim Surrogate Value
Memo at Exhibit 2. Where necessary, the
Department adjusted surrogate values
for inflation, exchange rates, and taxes,
and the Department converted all
applicable items to a per-kilogram basis.
The Department valued electricity
using price data for small, medium, and
large industries, as published by the
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Central Electricity Authority of the
Government of India (‘‘CEA’’) in its
publication titled ‘‘Electricity Tariff &
Duty and Average Rates of Electricity
Supply in India’’, dated July 2006.
These electricity rates represent actual
country-wide, publicly available
information on tax-exclusive electricity
rates charged to industries in India.
Since the rates are not contemporaneous
with the POR, the Department inflated
the values using the WPI. Parties have
suggested that the Department rely on
June 2008 CEA data and International
Energy Agency (‘‘IEA’’) data. However,
the Department preliminarily finds that
we cannot rely on those data because we
are unable to separate duty rates from
the June 2008 CEA data, and the IEA
data are less contemporaneous than the
July 2006 CEA data. Additionally,
Petitioners have recommended that the
Department not use CEA data because of
a 2007 TERI report that indicated that
the rates include subsidies and are
below production. However, the
Department was unable to find
sufficient evidence of subsidies to
demonstrate that the electricity rates
used in the CEA data were unreliable.
Moreover, the Department was also
unable to find sufficient evidence to
demonstrate that the electricity rates
used in the CEA data were below cost.
Therefore, we preliminarily determine
to value electricity using the CEA price
data. See Prelim Surrogate Value Memo.
Because water is essential to the
production process of the subject
merchandise, the Department is
considering water to be a direct material
input, and not as overhead, and valued
water with a surrogate value according
to our practice. See Final Determination
of Sales at Less Than Fair Value and
Critical Circumstances: Certain
Malleable Iron Pipe Fittings From the
People’s Republic of China, 68 FR 61395
(October 28, 2003) and accompanying
Issue and Decision Memorandum at
Comment 11. Although some suppliers
have reported that they obtain water
from a well, the Department finds that
whether the producer pays for water is
irrelevant in determining whether it
should be considered a direct material
input.32 Further, there is no evidence on
the record that the Indian producers of
activated carbon from which the
Department are obtaining overhead
financial ratio data account for water as
an overhead expense. The Department
32 See Pacific Giant, Inc., et al. v. United States,
223 F. Supp. 2d 1336, 1346 (CIT 2002); Fresh Garlic
From the People’s Republic of China: Final Results
of Antidumping Duty Administrative Review and
New Shipper Reviews, 69 FR 33626 (June 16, 2004)
and accompanying Issues and Decisions
Memorandum at Comment 2.
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Jkt 217001
valued water using data from the
Maharashtra Industrial Development
Corporation (https://www.midcindia.org)
as it includes a wide range of industrial
water tariffs. This source provides 386
industrial water rates within the
Maharashtra province from June 2003:
193 for the ‘‘inside industrial areas’’
usage category and 193 for the ‘‘outside
industrial areas’’ usage category.
Because the value was not
contemporaneous with the POR, the
Department adjusted the rate for
inflation. See Prelim Surrogate Value
Memo.
For direct, indirect, and packing
labor, consistent with 19 CFR
351.408(c)(3), the Department used the
PRC regression-based wage rate as
reported on Import Administration’s
home page, Import Library, Expected
Wages of Selected NME Countries,
revised in May 2008; see Corrected 2007
Calculation of Expected Non-Market
Economy Wages, 73 FR 27795 (May 14,
2008), and https://ia.ita.doc.gov/wages/
index.html. The source of these wagerate data on Import Administration’s
web site is the Yearbook of Labour
Statistics 2005, ILO (Geneva: 2007),
Chapter 5B: Wages in Manufacturing.
Because this regression-based wage rate
does not separate the labor rates into
different skill levels or types of labor,
the Department has applied the same
wage rate to all skill levels and types of
labor reported by the respondents. See
Prelim Surrogate Value Memo.
For coal gas, the Department
examined Indian import data and noted
that there are no imports of commercial
quantities of coal gas for the POR or
prior to the POR. Because the
Department found no usable data to
value coal gas, the Department has
determined to use the methodology
employed in pure magnesium from the
PRC. See Pure Magnesium from the
People’s Republic of China: Final
Results of Antidumping Duty
Administrative Review, 73 FR 76336
(December 16, 2008) and accompanying
Issues and Decisions Memorandum at
Comment 4. Therefore, to value coal gas,
the Department first obtained a value for
natural gas from the financial statements
found in the 2007–2008 Annual Report
of the Gas Authority of India Ltd.
(‘‘GAIL’’), a supplier of natural gas in
India. The Department then compared
the amount of British thermal units
(‘‘BTUs’’) in coal gas (i.e., 600) to that
of natural gas (i.e., 1150) to calculate the
relative percentage of BTUs in coal gas.
The Department has applied that
percentage to the value of natural gas to
PO 00000
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Fmt 4703
Sfmt 4703
determine a surrogate value for coal
gas.33 See Prelim Surrogate Value Memo.
The Department calculated the
surrogate value for steam based upon
the April 2007–March 2008 financial
statement of Hindalco Industries
Limited (‘‘Hindalco’’). See 1Hydroxyethylidene-1, 1-Diphosphonic
Acid from the People’s Republic of
China: Final Determination of Sales at
Less than Fair Value, 74 FR 10545
(March 11, 2009), and accompanying
Issues and Decision Memorandum at
Comment 4. For a detailed explanation
of our reasons for using Hindalco’s
financial statements as the source of the
surrogate value for steam, see Prelim
Surrogate Value Memo.
The Department valued truck freight
expenses using a per-unit average rate
calculated from data on the infobanc
Web site: https://www.infobanc.com/
logistics/logtruck.htm. The logistics
section of this Web site contains inland
freight truck rates between many large
Indian cities. Since this value is not
contemporaneous with the POR, the
Department deflated the rate using WPI.
See Prelim Surrogate Value Memo.
To value international freight, the
Department obtained price data from the
Maersk SeaLand Web site (https://
www.maerskline.com). See Prelim
Surrogate Value Memo. To value marine
insurance, the Department used data
from RGJ Consultants (https://
www.rjgconsultants.com/). This source
provides information regarding the pervalue rates of marine insurance of
imports and exports to/from various
countries. See Prelim Surrogate Value
Memo.
To value brokerage and handling, the
Department calculated a simple average
of the brokerage and handling costs that
were reported in public submissions
that were filed in three antidumping
duty cases.34 Specifically, the
Department averaged the public
brokerage and handling expenses
reported by Navneet Publications (India)
Ltd. in the 2007–2008 administrative
33 We note that we have also used this
methodology in other proceedings. See Certain Cutto-Length Carbon Steel Plate from Romania: Notice
of Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 70 FR
12651 (March 15, 2005), and accompanying Issues
and Decision Memorandum at Comment 6; see also
Notice of Preliminary Determination of Sales at Less
Than Fair Value: Certain Hot-Rolled Carbon Steel
Flat Products From the People’s Republic of China,
66 FR 22183 (May 3, 2001) (unchanged in Final
Notice of Sales at Less Than Fair Value: Certain
Hot-Rolled Carbon Steel Flat Products From the
People’s Republic of China, 66 FR 49632
(September 28, 2001)).
34 Certain Lined Paper Products from India (07–
08), Certain Hot-Rolled Carbon Steel Flat Products
from India (06–07), and Certain Preserved
Mushrooms From India (05–06).
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review of certain lined paper products
from India, Essar Steel Limited in the
2006–2007 antidumping duty
administrative review of hot-rolled
carbon steel flat products from India,
and Himalaya International Ltd. in the
2005–2006 administrative review of
certain preserved mushrooms from
India. The Department inflated the
brokerage and handling rate using the
appropriate WPI inflator. See Prelim
Surrogate Value Memo.
To value factory overhead, selling,
general, and administrative (‘‘SG&A’’)
expenses, and profit, the Department
used the average of the audited financial
statements of three Indian activated
carbon producing companies; those
being, Core Carbons for fiscal year
(‘‘FY’’) 07–08, Indo German Carbons
Ltd. for FY 07–08, and Kalpalka
Chemicals Ltd. for FY 06–07.35
Additionally, while GHC also provided
an additional source for surrogate
financial ratios using the financial
statements of Quantum Active Carbon
Pvt. Ltd. (‘‘Quantum’’), which is an
Indian producer of activated carbon
products, the Department preliminarily
finds that the financial statements of
this producer should not be used for
purposes of calculating surrogate
financial ratios because the financial
statement was submitted without the
profit and loss statement. Although GHC
provided Quantum’s profit and loss
statement on February 24, 2009, 11 days
after submitting Quantum’s financial
statement, GHC did not provide any
explanation of how this profit and loss
statement was obtained or whether it is
available in the public domain. Thus,
we find that absent any information on
the record with respect to the
availability of Quantum’s complete
financial statements, inclusive of the
profit and loss statement, we find that
Quantum’s financial statement is
incomplete. Therefore, pursuant to 19
CFR 351.408(c)(3), the Department
preliminarily determines that the FY
07–08 financial statements of Core
Carbons and Indo German Carbons Ltd.,
and the FY 06–07 financial statements
of Kalpalka Chemicals Ltd. provide the
best available information with which to
calculate surrogate financial ratios,
because they are complete, publicly
available, and contemporaneous with
the POR. Additionally, all three of these
companies produce comparable
merchandise and use an integrated
carbonization production process which
closely mirrors that of all three
respondents. Therefore, the Department
has used these financial statements to
value factory overhead, SG&A, and
profit, for these preliminary results.
With respect to GHC’s request for a
byproduct offset for fines, the
Department has preliminarily
determined that the product GHC has
claimed as a byproduct is in fact
merchandise within the scope of this
administrative review because it is still
considered activated carbon, and,
therefore should not be considered a
byproduct. Consequently, the
Department is not granting a byproduct
credit in our margin calculation for
GHC. See GHC Prelim Analysis Memo.
Currency Conversion
The Department made currency
conversions into U.S. dollars, in
accordance with section 773A(a) of the
Act, based on the exchange rates in
effect on the dates of the U.S. sales, as
certified by the Federal Reserve Bank.
Preliminary Results of Review
The Department preliminarily
determines that the following weightedaverage dumping margins exist:
CERTAIN ACTIVATED CARBON FROM THE PEOPLE’S REPUBLIC OF CHINA
Weighted
average margin
(percent)
Manufacturer/exporter
Calgon Carbon (Tianjin) Co., Ltd ................................................................................................................................................
Jacobi Carbons AB 36 ..................................................................................................................................................................
Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd 37 .....................................................................................................
Datong Municipal Yunguang Activated Carbon Co., Ltd ............................................................................................................
Hebei Foreign Trade Advertisement Company ...........................................................................................................................
Ningxia Huahui Activated Carbon Co., Ltd .................................................................................................................................
Ningxia Lingzhou Foreign Trade Co., Ltd ...................................................................................................................................
Tangshan Solid Carbon Co., Ltd .................................................................................................................................................
Tianjin Maijin Industries Co., Ltd .................................................................................................................................................
PRC-Wide Rate 38 .......................................................................................................................................................................
188.57
49.81
50.84
119.19
119.19
119.19
119.19
119.19
119.19
228.11
Disclosure and Public Hearing
The Department will disclose
toparties the calculations performed in
connection with these preliminary
results within five days of the date of
publication of this notice. See 19 CFR
351.224(b). Because, as discussed above,
the Department intends to seek
additional information, the Department
will establish the briefing schedule at a
later time, and will notify parties of the
schedule in accordance with 19 CFR
351.309. Parties who submit case briefs
or rebuttal briefs in this proceeding are
requested to submit with each
argument: (1) A statement of the issue;
(2) a brief summary of the argument;
and (3) a table of authorities. See 19 CFR
351.309(c) and (d).
Pursuant to 19 CFR 351.310(c),
interested parties who wish to request a
hearing, or to participate if one is
requested, must submit a written
request to the Assistant Secretary for
Import Administration, Room 1117,
within 30 days of the date of 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 issues to be
discussed. Id. Issues raised in the
hearing will be limited to those raised
in the respective case briefs. The
Department will issue the final results
of this administrative review, including
the results of its analysis of the issues
35 The FY 07–08 financial statements for Core
Carbons were submitted by Petitioners on February
13, 2009; the FY 07–08 financial statements for Indo
German Carbons Ltd. and the FY 06–07 financial
statements for Kalpalka Chemicals Ltd. were
submitted by Jacobi on February 13, 2009.
36 And its affiliates, Tianjin Jacobi International
Trading Co., Ltd. and Jacobi Carbons, Inc.
37 Ningxia Guanghua Cherishment Activated
Carbon Co., Ltd. and the following companies have
been determined to be a single entity: Beijing
Pacific Activated Carbon Products Co., Ltd.,
Ningxia Guanghua Activated Carbon Company, and
Company A. Thus, the calculated margin applies to
the single entity.
38 The PRC-Wide entity includes Ningxia Mineral
& Chemical Limited, Jilin Bright Future Chemicals
Company, Ltd. and its affiliate, Jilin Province Bright
Future Industry and Commerce Co., Ltd.
VerDate Nov<24>2008
17:03 May 06, 2009
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Federal Register / Vol. 74, No. 87 / Thursday, May 7, 2009 / Notices
raised in any written briefs, not later
than 120 days after the date of
publication of this notice, pursuant to
section 751(a)(3)(A) of the Act.
Extension of the Time Limits for the
Final Results
Section 751(a)(3)(A) of the Act
requires that the Department issue the
final results of an administrative review
within 120 days after the date on which
the preliminary results are published. If
it is not practicable to complete the
review within that time period, section
751(a)(3)(A) of the Act allows the
Department to extend the deadline for
the final results to a maximum of 180
days after the date on which the
preliminary results are published.
In this proceeding, the Department
requires additional time to complete the
final results of this administrative
review to issue additional supplemental
questionnaires, conduct verifications of
several producers in addition to the
exporters, generate the reports of the
verification findings, and properly
consider the issues raised in case briefs
from interested parties. Thus, it is not
practicable to complete this
administrative review within the
original time limit. Consequently, the
Department is extending the time limit
for completion of the final results of this
review by 60 days, in accordance with
section 751(a)(3)(A) of the Act. The final
results are now due no later 180 days
after the publication date of these
preliminary results.
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries covered by these
reviews. The Department intends to
issue assessment instructions to CBP 15
days after the publication date of the
final results of this review excluding
any reported sales that entered during
the gap period. In accordance with 19
CFR 351.212(b)(1), we calculated
exporter/importer (or customer)-specific
assessment rates for the merchandise
subject to this review. Where the
respondent has reported reliable entered
values, we calculated importer (or
customer)-specific ad valorem rates by
aggregating the dumping margins
calculated for all U.S. sales to each
importer (or customer) and dividing this
amount by the total entered value of the
sales to each importer (or customer). See
19 CFR 351.212(b)(1). Where an
importer (or customer)-specific ad
valorem rate is greater than de minimis,
we will apply the assessment rate to the
entered value of the importers’/
VerDate Nov<24>2008
17:03 May 06, 2009
Jkt 217001
customers’ entries during the POR. See
19 CFR 351.212(b)(1).
Where we do not have entered values
for all U.S. sales, we calculated a perunit assessment rate by aggregating the
antidumping duties due for all U.S.
sales to each importer (or customer) and
dividing this amount by the total
quantity sold to that importer (or
customer). See 19 CFR 351.212(b)(1). To
determine whether the duty assessment
rates are de minimis, in accordance with
the requirement set forth in 19 CFR
351.106(c)(2), we calculated importer
(or customer)-specific ad valorem ratios
based on the estimated entered value.
Where an importer (or customer)specific ad valorem rate is zero or de
minimis, we will instruct CBP to
liquidate appropriate entries without
regard to antidumping duties. See 19
CFR 351.106(c)(2).
For the companies receiving a
separate rate that were not selected for
individual review, we will calculate an
assessment rate based on the simple
average of the cash deposit rates
calculated for the companies selected
for individual review pursuant to
section 735(c)(5)(B) of the Act.
For those companies for which this
review has been preliminarily
rescinded, the Department intends to
assess antidumping duties at rates equal
to the cash deposit of estimated
antidumping duties required at the time
of entry, or withdrawal from warehouse,
for consumption, in accordance with 19
CFR 351.212(c)(2), if the review is
rescinded for these companies. The
Department will issue appropriate
assessment instructions directly to CBP
15 days after publication of this notice.
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) For the
exporters listed above, the cash deposit
rate will be established in the final
results of this review (except, if the rate
is zero or de minimis, i.e., less than 0.5
percent, no cash deposit will be
required for that company); (2) for
previously investigated or reviewed PRC
and non-PRC exporters not listed above
that have separate rates, the cash
deposit rate will continue to be the
exporter-specific rate published for the
most recent period; (3) for all PRC
exporters of subject merchandise which
have not been found to be entitled to a
separate rate, the cash deposit rate will
PO 00000
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Fmt 4703
Sfmt 4703
be the PRC-wide rate of 228.11 percent;
and (4) for all non-PRC exporters of
subject merchandise which have not
received their own rate, the cash deposit
rate will be the rate applicable to the
PRC exporters that supplied that nonPRC exporter. These deposit
requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19
CFR 351.221(b)(4).
Dated: April 30, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary, for Import
Administration.
[FR Doc. E9–10631 Filed 5–6–09; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–274–804]
Carbon and Certain Alloy Steel Wire
Rod from Trinidad and Tobago:
Extension of Time Limit for the
Preliminary Results of Antidumping
Duty Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: May 7, 2009.
FOR FURTHER INFORMATION CONTACT:
Dennis McClure or Jolanta Lawska,
Office 3, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Ave., NW,
Washington, DC 20230; telephone: (202)
482–5973 and (202) 482–8362,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On November 24, 2008, the U.S.
Department of Commerce (‘‘the
Department’’) published a notice of
initiation of the administrative review of
the antidumping duty order on carbon
E:\FR\FM\07MYN1.SGM
07MYN1
]]>Agencies
[Federal Register Volume 74, Number 87 (Thursday, May 7, 2009)]
[Notices]
[Pages 21317-21330]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-10631]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-904]
Certain Activated Carbon From the People's Republic of China:
Notice of Preliminary Results of the Antidumping Duty Administrative
Review and Extension of Time Limits for the Final Results
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
first administrative review of the antidumping duty order on certain
activated carbon from the People's Republic of China (``PRC'') for the
period October 11, 2006, through March 31, 2008. The Department has
preliminarily determined that sales have been made below normal value
(``NV'') by the respondents. If these preliminary results are adopted
in our final results of this review, the Department will instruct U.S.
Customs and Border Protection (``CBP'') to assess antidumping duties on
all appropriate entries of subject merchandise during the period of
review.
Interested parties are invited to comment on these preliminary
results. The Department intends to issue the final results no later
than 180 days from the date of publication of this notice, pursuant to
section 751(a)(3)(A) of the Tariff Act of 1930, as amended (``the
Act''). See ``Extension of the Time Limits for the Final Results''
below.
DATES: Effective Date: May 7, 2009.
FOR FURTHER INFORMATION CONTACT: Julia Hancock, Irene Gorelik, or Bob
Palmer, AD/CVD Operations, Office 9, Import Administration,
International Trade Administration, Department of Commerce, 14th Street
and Constitution Avenue, NW., Washington, DC 20230; telephone: (202)
482-1394, (202) 482-6905 or (202) 482-9068, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 27, 2007, the Department published in the Federal Register
an antidumping duty order on certain activated carbon from the PRC. See
Notice of Antidumping Duty Order: Certain Activated Carbon from the
People's Republic of China, 72 FR 20988 (April 27, 2007) (``Order'').
On April 1, 2008, the Department published in the Federal Register a
notice of opportunity to request an administrative review of the
antidumping duty order of certain activated carbon from the PRC for the
period October 11, 2006, through March 31, 2008.\1\ See Antidumping or
Countervailing Duty Order, Finding, or Suspended Investigation;
Opportunity to Request Administrative Review, 73 FR 17317 (April 1,
2008). The Department received timely requests by Petitioners \2\ to
conduct a review of 90 companies. On June 4, 2008, the Department
initiated this review with respect to all requested companies. See
[[Page 21318]]
Initiation of Antidumping and Countervailing Duty Administrative
Reviews and Requests for Revocation in Part, 73 FR 31813 (June 4, 2008)
(``Initiation Notice'').
---------------------------------------------------------------------------
\1\ The Department does not include merchandise that entered the
United States during the provisional measures gap period (``gap
period''), i.e., April 9, 2007, and April 19, 2007, in our
calculation because these entries are not subject to antidumping
duties. See Notice of Preliminary Results of Antidumping Duty
Administrative Review: Low Enriched Uranium from France, 69 FR 3883
(January 27, 2004). However, for the purposes of these preliminary
results, we are basing the margin calculation on all reported U.S.
sales made during the POR because we are unable to determine whether
any reported U.S. sales entered during the gap period. We will
request additional information from the respondents with respect to
this issue.
\2\ Norit Americas Inc. and Calgon Carbon Corporation.
---------------------------------------------------------------------------
On June 26, 2008, Petitioners withdrew the request for review with
respect to 57 of the 90 originally requested companies. On July 22,
2008, the Department published a notice of rescission in the Federal
Register for those 57 companies. See Certain Activated Carbon From the
People's Republic of China: Notice of Partial Rescission of Antidumping
Duty Administrative Review, 73 FR 42550 (July 22, 2008). On September
16, 2008, Petitioners withdrew the request for review with respect to
an additional 19 companies. On October 1, 2008, the Department
published a second notice of rescission in the Federal Register for
those 19 companies. See Certain Activated Carbon from the People's
Republic of China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 73 FR 57058 (October 1, 2008). Following the two
partial rescissions, 14 companies remained to be reviewed.\3\
---------------------------------------------------------------------------
\3\ These companies are: Datong Municipal Yunguang Activated
Carbon Co., Ltd.; Hebei Foreign Trade Advertisement Company (and its
successor company, Hebei Shenglun Import and Export Group Company);
Ningxia Huahui Activated Carbon Co., Ltd.; Ningxia Lingzhou Foreign
Trade Co., Ltd.; Ningxia Mineral & Chemical Limited.; Tangshan Solid
Carbon Co., Ltd.; Tianjin Maijin Industries Co., Ltd.; Jilin Bright
Future Chemicals Company, Ltd.; Jilin Province Bright Future
Industry and Commerce Co., Ltd.; Calgon Carbon (Tianjin) Co., Ltd.;
Jacobi Carbons AB and its affiliates, Tianjin Jacobi International
Trading Co., Ltd. and Jacobi Carbons, Inc.; Tianjin Jacobi
International Trading Co., Ltd.; Ningxia Guanghua Cherishment
Activated Carbon Co., Ltd.; and Beijing Pacific Activated Carbon
Products Co., Ltd.
---------------------------------------------------------------------------
On November 26, 2008, the Department published a notice extending
the time period for issuing the preliminary results by 120 days to
April 30, 2009. See Certain Activated Carbon from the People's Republic
of China: Extension of Time Limits for Preliminary Results of the
Antidumping Duty Administrative Review, 73 FR 72026 (November 26,
2008).
Respondent Selection
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter or producer of the
subject merchandise.\4\ However, section 777A(c)(2) of the Act gives
the Department discretion to limit its examination to a reasonable
number of exporters or producers if it is not practicable to examine
all exporters or producers involved in the review.
---------------------------------------------------------------------------
\4\ See also 19 CFR 351.204(c) regarding respondent selection,
in general.
---------------------------------------------------------------------------
On June 9, 2008, the Department released CBP data for entries of
the subject merchandise during the period of review (``POR'') under
administrative protective order (``APO'') to all interested parties
having an APO as of five days of publication of the Initiation Notice,
inviting comments regarding the CBP data and respondent selection. The
Department received comments and rebuttal comments between June 23,
2008, and July 3, 2008. Based upon the comments received from the
Petitioners and several respondents, on July 8, 2008, the Department
provided a second round of CBP data under APO to all interested parties
having an APO, and invited comments regarding the second round of CBP
data. The Department received parties' second round of comments between
July 14, 2008 and July 23, 2008.
On August 5, 2008, the Department issued its respondent selection
memorandum after assessing its resources and determining that it could
reasonably examine three exporters subject to this review. Pursuant to
section 777A(c)(2)(B) of the Act, the Department selected Jacobi
Carbons AB (``Jacobi''),\5\ Calgon Carbon (Tianjin) Co. Ltd. (``CCT''),
and Jilin Bright Future Chemicals Company, Ltd. (``Jilin'') as
mandatory respondents.\6\ The Department sent its antidumping
questionnaire to CCT, Jacobi, and Jilin on August 5, 2008. On August 7,
2008, a separate rate respondent, Ningxia Guanghua Cherishmet Activated
Carbon Co., Ltd. (``GHC''), requested treatment as a voluntary
respondent.
---------------------------------------------------------------------------
\5\ Consisting of Jacobi Carbons AB and its affiliates, Tianjin
Jacobi International Trading Co., Ltd. and Jacobi Carbons, Inc.
\6\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, from Paul Walker, International Trade Compliance Analyst,
AD/CVD Operations, Office 9; First Antidumping Duty Administrative
Review of Certain Activated Carbon from the PRC: Selection of
Respondents for Individual Review, dated August 5, 2008
(``Respondent Selection Memo'').
---------------------------------------------------------------------------
On September 15, 2008, Jilin filed a letter stating that it will
not participate as a mandatory respondent in this administrative
review.\7\ Upon receiving comments from Petitioners regarding Jilin's
withdrawal from the proceeding and comments from GHC regarding its
status as a voluntary respondent, the Department issued a memorandum
selecting GHC as a voluntary respondent. The Department stated that
because Jilin decided not to respond to the Department's questionnaires
in this administrative review, and the Department previously determined
that it had the resources to examine three respondents,\8\ it would
individually review GHC pursuant to section 782(a) of the Act.\9\
---------------------------------------------------------------------------
\7\ See Letter from Jilin Regarding Activated Carbon from the
People's Republic of China and Termination of Jilin's Participation
as a Mandatory Respondent, dated September 15, 2008.
\8\ See Respondent Selection Memo.
\9\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, through Catherine Bertrand, Program Manager, Office 9,
from Julia Hancock and Robert Palmer, International Trade Compliance
Analysts, AD/CVD Operations, Office 9; Antidumping Duty
Administrative Review of Certain Activated Carbon from the People's
Republic of China: Selection of Voluntary Respondent, dated October
14, 2008.
---------------------------------------------------------------------------
Petitioners submitted deficiency comments regarding all three
respondents' questionnaire responses between October 2008 and April
2009. The Department issued supplemental questionnaires to Jacobi, CCT,
and GHC between October 2008 and March 2009.
Period of Review
The POR is October 11, 2006, through March 31, 2008.
Surrogate Country and Surrogate Value Data
On August 27, 2008, the Department sent interested parties a letter
inviting comments on surrogate country selection and information
regarding valuing factors of production.\10\ On February 13, 2009, the
Department received information to value factors of production
(``FOP'') from GHC, CCT, Jacobi, and Petitioners. On February 23, 2009,
GHC and Petitioners filed rebuttal comments. On February 24, 2009, GHC
provided additional surrogate value information. On March 2, 2009,
Petitioners filed additional rebuttal comments. All the surrogate
values placed on the record were obtained from sources in India. No
parties provided comments with respect to selection of a surrogate
country.
---------------------------------------------------------------------------
\10\ See the Department's Letter to All Interested Parties;
First Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated August 27, 2008.
---------------------------------------------------------------------------
Scope of the Order
The merchandise subject to this order is certain activated carbon.
Certain activated carbon is a powdered, granular, or pelletized carbon
product obtained by ``activating'' with heat and steam various
materials containing carbon, including but not limited to coal
(including bituminous, lignite, and anthracite), wood, coconut shells,
olive stones, and peat. The thermal and steam treatments remove organic
materials and create an internal pore structure in the carbon material.
The producer can also use carbon dioxide gas (CO2) in place
of
[[Page 21319]]
steam in this process. The vast majority of the internal porosity
developed during the high temperature steam (or CO2 gas)
activated process is a direct result of oxidation of a portion of the
solid carbon atoms in the raw material, converting them into a gaseous
form of carbon.
The scope of this order covers all forms of activated carbon that
are activated by steam or CO2, regardless of the raw
material, grade, mixture, additives, further washing or post-activation
chemical treatment (chemical or water washing, chemical impregnation or
other treatment), or product form. Unless specifically excluded, the
scope of this order covers all physical forms of certain activated
carbon, including powdered activated carbon (``PAC''), granular
activated carbon (``GAC''), and pelletized activated carbon.
Excluded from the scope of the order are chemically activated
carbons. The carbon-based raw material used in the chemical activation
process is treated with a strong chemical agent, including but not
limited to phosphoric acid, zinc chloride sulfuric acid or potassium
hydroxide, that dehydrates molecules in the raw material, and results
in the formation of water that is removed from the raw material by
moderate heat treatment. The activated carbon created by chemical
activation has internal porosity developed primarily due to the action
of the chemical dehydration agent. Chemically activated carbons are
typically used to activate raw materials with a lignocellulosic
component such as cellulose, including wood, sawdust, paper mill waste
and peat.
To the extent that an imported activated carbon product is a blend
of steam and chemically activated carbons, products containing 50
percent or more steam (or CO2 gas) activated carbons are
within this scope, and those containing more than 50 percent chemically
activated carbons are outside this scope. This exclusion language
regarding blended material applies only to mixtures of steam and
chemically activated carbons.
Also excluded from the scope are reactivated carbons. Reactivated
carbons are previously used activated carbons that have had adsorbed
materials removed from their pore structure after use through the
application of heat, steam and/or chemicals.
Also excluded from the scope is activated carbon cloth. Activated
carbon cloth is a woven textile fabric made of or containing activated
carbon fibers. It is used in masks and filters and clothing of various
types where a woven format is required.
Any activated carbon meeting the physical description of subject
merchandise provided above that is not expressly excluded from the
scope is included within this scope. The products subject to the order
are currently classifiable under the Harmonized Tariff Schedule of the
United States (``HTSUS'') subheading 3802.10.00. Although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of this order is dispositive.
Non-Market Economy (``NME'') Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority. See Brake Rotors from the People's Republic of
China: Final Results and Partial Rescission of the 2004/2005
Administrative Review and Notice of Rescission of 2004/2005 New Shipper
Review, 71 FR 66304 (November 14, 2006). None of the parties to this
proceeding have contested such treatment. Accordingly, the Department
calculated NV in accordance with section 773(c) of the Act, which
applies to NME countries.
Surrogate Country
When the Department investigates imports from an NME country and
available information does not permit the Department to determine NV
pursuant to section 773(a) of the Act, then, pursuant to section
773(c)(4) of the Act, the Department bases NV on an NME producer's
FOPs, to the extent possible, in one or more market-economy countries
that (1) are at a level of economic development comparable to that of
the NME country, and (2) are significant producers of comparable
merchandise. The Department determined that India, Indonesia,
Philippines, Colombia, and Thailand are countries comparable to the PRC
in terms of economic development.\11\
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\11\ See the Department's Letter to All Interested Parties;
First Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated August 27, 2008, at Attachment I
(``Surrogate Country List'').
---------------------------------------------------------------------------
Based on publicly available information placed on the record (e.g.,
production data), the Department determines India to be a reliable
source for surrogate values because India is at a comparable level of
economic development pursuant to section 773(c)(4) of the Act, is a
significant producer of subject merchandise, and has publicly available
and reliable data. Accordingly, the Department has selected India as
the surrogate country for purposes of valuing the FOPs because it meets
the Department's criteria for surrogate country selection.
Affiliation--GHC
Section 771(33) of the Act, provides that ``the following persons
shall be considered to be `affiliated' or `affiliated persons' '':
(A) Members of a family, including brothers and sisters (whether by
the whole or half blood), spouse, ancestors, and lineal descendants.
(B) Any officer or director of an organization and such
organization.
(C) Partners.
(D) Employer and employee.
(E) Any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization.
(F) Two or more persons directly or indirectly controlling,
controlled by, or under common control with, any person.
(G) Any person who controls any other person and such other person.
Additionally, section 771(33) of the Act stipulates that: ``For
purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position
to exercise restraint or direction over the other person.''
Based on the evidence on the record in this administrative review
including information found in GHC's questionnaire responses, the
Department preliminarily finds GHC affiliated with Beijing Pacific
Activated Carbon Products Co., Ltd. (``Beijing Pacific''), an exporter
of the subject merchandise, Cherishmet Inc. (``Cherishmet''), a U.S.
importer of the subject merchandise, Ningxia Guanghua Activated Carbon
Company (``GH''), a domestic reseller of the merchandise under
consideration, and Company A\12\ pursuant to sections 771(33) (E), (F)
and
[[Page 21320]]
(G) of the Act, based on ownership and common control.
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\12\ The identity of this company is business proprietary
information; for further discussion of this company, see Memorandum
to Catherine Bertrand, Program Manager, AD/CVD Operations, Office 9,
from Robert Palmer, Case Analyst, AD/CVD Operations, Office 9, re;
Preliminary Determination in the Antidumping Duty Administrative
Review of Certain Activated Carbon from the People's Republic of
China: Affiliation Memorandum of Ningxia Guanghua Cherishmet
Activated Carbon Co. Ltd., (April 30, 2009) (``GHC Affiliation
Memo'').
---------------------------------------------------------------------------
We find that in addition to being affiliated, the collapsing
criterion of significant potential for manipulation of price exists
among Beijing Pacific, Cherishmet, GH, and GHC for the following
reasons. There is a level of common ownership between and among these
companies: (a) Cherishmet owns Beijing Pacific and a significant share
of GHC and (b) GH owns a significant share of GHC. Moreover, a
significant level of common control exists among these companies: (a)
The owner of Cherishmet is a member of Beijing Pacific and GHC's board
of directors; (b) Cherishmet appointed the general manager and board
member of Beijing Pacific to GHC's board of directors; (c) GH and GHC
share board of directors, management, and employees. Further, we find
that the operations of Beijing Pacific, Cherishmet, GH, and GHC are
sufficiently intertwined. Specifically, Beijing Pacific and GHC share
sales information with Cherishmet. Finally, certain information
contained within GHC's supplemental questionnaire responses indicates
that Cherishmet sets the U.S. sales prices for Beijing Pacific and GHC.
See 19 CFR 351.401(f)(1) and (2).\13\
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\13\ 19 CFR 351.401(f)(1) states that the Department will treat
``two or more affiliated producers as a single entity where those
producers have production facilities for similar or identical
products that would not require substantial retooling of either
facility in order to restructure manufacturing priorities and the
Secretary concludes that there is a significant potential for the
manipulation of price or production.'' Further, 19 CFR 351.401(f)(2)
states that ``in identifying a significant potential for the
manipulation of price or production, the factors the Secretary may
consider include: (i) The level of common ownership; (ii) The extent
to which managerial employees or board members of one firm sit on
the board of directors of an affiliated firm; and (iii) Whether
operations are intertwined, such as through the sharing of sales
information, involvement in production and pricing decisions, the
sharing of facilities or employees, or significant transactions
between the affiliated producers.''
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Furthermore, we note that the factors listed in 19 CFR
351.401(f)(2) are not exhaustive, and in the context of an NME
investigation or administrative review, other factors unique to the
relationship of business entities within the NME may lead the
Department to determine that collapsing is either warranted or
unwarranted, depending on the facts of the case. See Hontex
Enterprises, Inc. v. United States, Slip Op. 03-17, 36 (February 13,
2003) (noting that the application of collapsing in the NME context may
differ from the standard factors listed in the regulation).
Additionally, the Department may consider export decisions in its
collapsing analysis. See Hontex Enterprises v. United States, 342 F.
Supp. 2d 1225, 1230-34 (CIT 2004) (``Hontex II''). Furthermore, the
Department may expand the market-economy inquiry into the potential for
manipulation to include NME exporters' export decisions, rather than
whether or not the companies share production facilities. See Hontex
II.
Accordingly, the Department finds Beijing Pacific, Cherishmet, GH
and GHC as a single entity for purposes of this administrative review.
See 19 CFR 351.401(f). With respect to Company A, based on evidence on
the record and evidence presented in GHC's questionnaire responses, the
Department preliminarily determines that Company A is not a single
entity with GHC. See 19 CFR 351.401(f). For a detailed discussion of
this issue, see GHC Affiliation Memo.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the Act provide that, if
necessary information is not available on the record, or if an
interested party: (A) Withholds information that has been requested by
the Department; (B) fails to provide such information in a timely
manner or in the form or manner requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly impedes a proceeding under the
antidumping statute; or (D) provides such information but the
information cannot be verified, the Department shall, subject to
subsection 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from {the Department{time} for
information, notifies {the Department{time} that such party is unable
to submit the information requested in the requested form and manner,
together with a full explanation and suggested alternative forms in
which such party is able to submit the information,'' the Department
may modify the requirements to avoid imposing an unreasonable burden on
that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) The information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in providing the information
and meeting the requirements established by the Department; and (5) the
information can be used without undue difficulties.
However, section 776(b) of the Act states that if the Department
``finds that an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for information
from the administering authority or the Commission, the administering
authority or the Commission * * *, in reaching the applicable
determination under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts otherwise
available.'' See also Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at 870
(1994) (SAA), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99. Adverse
inferences are appropriate ``to ensure that the party does not obtain a
more favorable result by failing to cooperate than if it had cooperated
fully.'' Id. An adverse inference may include reliance on information
derived from the petition, the final determination in the
investigation, any previous review, or any other information placed on
the record. See section 776(b) of the Act.
CCT
On August 19, 2008, CCT requested to be excused from reporting FOP
data for certain Chinese producers. On September 30, 2008, the
Department requested additional information from CCT regarding its
exclusion requests. On October 10, 2008, CCT responded and provided
detailed information regarding its producers and production quantities.
On October 17, 2008, the Department notified CCT that due to the large
numbers of producers that supplied CCT during the POR, its request to
be excused from reporting certain FOP data would be granted. See the
Department's Letter to CCT dated October 17, 2008. Specifically, the
Department did not require CCT to
[[Page 21321]]
report FOP data for the following producers: (1) Datong Nanjiao Huiyuan
A/C Co. Ltd.; (2) Datong Fuping Activated Carbon Co., Ltd.; (3) Hongke
Activated Carbon Co., Ltd.; (4) Ningxia Luyuangheng Activated Carbon
Co., Ltd.; (5) Datong Hongtai Activated Carbon Co., Ltd.; and (6)
Shanxi Xuanzhong Chemical Industry Co., Ltd. Id.
The Department also notified CCT that it would not be required to
report FOP data for products that were produced prior to the POR, as
indicated in CCT's October 11, 2008, response. Furthermore, the
Department notified CCT that it was not required to report FOP data for
products that were purchased by and not produced by CCT's producers, as
indicated in CCT's October 11, 2008, response. Additionally, the
Department notified CCT that, upon CCT's acceptance of the terms of the
FOP data exclusions, the Department shall determine the appropriate
facts available to apply, in lieu of the actual FOP data, to the
corresponding U.S. sales of subject merchandise. Id.
Thus, in accordance with section 776(a)(1) of the Act, the
Department is applying facts available to determine the normal value
for the sales corresponding to the FOP data CCT was excused from
reporting. Due to the proprietary nature of the factual information
concerning these producers, these issues are addressed in a separate
business proprietary memorandum where a detailed explanation of the
facts available calculation is provided. See Memorandum to Catherine
Bertrand, Program Manager, AD/CVD Operations, Office 9, from Irene
Gorelik, Senior Case Analyst, AD/CVD Operations, Office 9: Preliminary
Results Analysis Memorandum for Calgon Carbon (Tianjin) Co., Ltd., in
the Antidumping Duty Administrative Review of Certain Activated Carbon
from the People's Republic of China, dated April 30, 2009 (``CCT Prelim
Analysis Memo'').
Jacobi
On September 15, 2008, Jacobi requested to be excused from
reporting FOP data for certain Chinese producers. On September 30,
2008, the Department requested additional information from Jacobi
regarding its exclusion requests. On October 10, 2008, Jacobi responded
and provided detailed information regarding its producers and
production quantities. On October 20, 2008, the Department notified
Jacobi that due to the large numbers of producers that supplied Jacobi
during the POR, Jacobi would be excused from reporting certain FOP
data. See the Department's Letter to Jacobi dated October 20, 2008.
Specifically, the Department did not require Jacobi to report FOP data
for its five smallest producers.\14\ Additionally, the Department
notified Jacobi that it was not required to report FOP data for
products that were produced by the four largest producers prior to the
POR, as indicated in Jacobi's October 11, 2008, request. Thus, the
Department determined that upon Jacobi's acceptance of the exclusion
terms, the Department would determine the appropriate facts available
to apply, in lieu of the actual FOP data for products produced prior to
the POR for the four largest producers, to the corresponding U.S. sales
of subject merchandise. Lastly, as indicated in Jacobi's October 10,
2008, response, Jacobi's four largest producers purchased certain
quantities of activated carbon from unaffiliated suppliers, but did not
sell any of the purchased activated carbon to Jacobi. Thus, the
Department notified Jacobi that if this were indeed the case, it would
be unnecessary for Jacobi to report the FOPs for such purchases to the
Department because these products were not sold to Jacobi. See Jacobi
Producers' Exclusion Letter.
---------------------------------------------------------------------------
\14\ The names of these producers are business proprietary
information thus not available for public summary. See the
Department's letter to Jacobi, dated October 20, 2008, for the names
of these producers (``Jacobi Producers' Exclusion Letter'').
---------------------------------------------------------------------------
In accordance with section 776(a)(1) of the Act, the Department is
applying facts available to determine the normal value for the sales
corresponding to the FOP data that Jacobi was excused from reporting.
Due to the proprietary nature of the factual information concerning
these producers, these issues are addressed in a separate business
proprietary memorandum where a detailed explanation of the facts
available calculation is provided. See Memorandum to Catherine
Bertrand, Program Manager, AD/CVD Operations, Office 9, from Julia
Hancock, Senior Case Analyst, AD/CVD Operations, Office 9: Preliminary
Results Analysis Memorandum for Jacobi Carbons AB, Tianjin Jacobi
International Trading Co., Ltd., and Jacobi Carbons, Inc.'s
(collectively ``Jacobi'') in the Antidumping Duty Administrative Review
of Certain Activated Carbon from the People's Republic of China, dated
April 30, 2009 (``Jacobi Prelim Analysis Memo'').
GHC
On September 12, 2008, GHC requested to be excused from reporting
FOP data for a Chinese producer.\15\ On October 17, 2008, the
Department notified GHC that because the FOP data for this Chinese
producer are of limited quantity and GHC states it produces comparable
products, the Department was excusing GHC from providing the Chinese
producer's FOP data. See the Department's Letter to GHC dated October
17, 2008. Thus, the Department determined that upon GHC's acceptance of
the exclusion terms, the Department would determine the appropriate
facts available to apply, in lieu of the actual FOP data for products
produced by the excluded producer.
---------------------------------------------------------------------------
\15\ The name of this producer is business proprietary
information thus not available for public summary. See the
Department's letter to Cherishmet, dated October 27, 2008, for the
name of this producer (``Cherishmet Producers' Exclusion Letter'').
---------------------------------------------------------------------------
Thus, in accordance with sections 776(a)(1) of the Act, the
Department is applying facts available to determine the normal value
for the sales corresponding to the FOP data that GHC was excused from
reporting. Due to the proprietary nature of the factual information
concerning these producers, these issues are addressed in a separate
business proprietary memorandum where a detailed explanation of the
facts available calculation is provided. See Memorandum to Catherine
Bertrand, Program Manager, AD/CVD Operations, Office 9, from Robert
Palmer, Case Analyst, AD/CVD Operations, Office 9: Preliminary Results
Analysis Memorandum for Ningxia Guanghua Cherishmet Activated Carbon
Co. Ltd. (``GHC'') in the Antidumping Duty Administrative Review of
Certain Activated Carbon from the People's Republic of China, dated
April 30, 2009 (``GHC Prelim Analysis Memo'').
Jilin
As stated in the ``Respondent Selection'' section above, the
Department issued the NME questionnaire to Jilin on August 5, 2008. On
August 26, 2008, the Department granted Jilin an extension of seven
business days to September 5, 2008, in which to submit its Section A
questionnaire response. However, the Department was not contacted by
Jilin, nor did it receive a response to section A of the Department's
questionnaire by the extended deadline (i.e., September 5, 2008).
Moreover, the Department did not receive Jilin's response to sections C
and D of the questionnaire by the established deadline (i.e., September
11, 2008).\16\ However, the Department
[[Page 21322]]
provided Jilin with another opportunity to explain why it had not
submitted responses to sections A, C, and D of the August 5, 2008,
questionnaire, and requested that it do so by September 19, 2008.\17\
As stated above in the ``Respondent Selection'' section, on September
15, 2008, counsel to Jilin filed a letter stating that Jilin would not
participate as a mandatory respondent in this administrative
review.\18\ Therefore, the Department finds it appropriate to rely on
the facts otherwise available in order to determine a margin for Jilin
for purposes of these preliminary results, pursuant to section
776(a)(2) of the Act.\19\
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\16\ Although Jilin contacted us on September 11, 2008,
withdrawing its request for an administrative review, Norit America,
Inc. and Calgon Carbon Corporation (``Petitioners'') requested a
review of Jilin; thus, we informed Jilin in the September 12, 2008,
letter that it is still under review.
\17\ See Letter from Catherine Bertrand, Program Manager,
Regarding Antidumping Administrative Review of Certain Activated
Carbon from the People's Republic of China: Withdrawal of Jilin's
Request for Administrative Review (September 12, 2008).
\18\ See Letter from Jilin Regarding Activated Carbon from the
People's Republic of China and Termination of Jilin's Participation
As A Mandatory Respondent (September 15, 2008).
\19\ See, e.g., Certain Preserved Mushrooms from the People's
Republic of China: Partial Rescission and Preliminary Results of the
Sixth Administrative Review, 71 FR 11183 (March 6, 2006) (unchanged
in final results); Stainless Steel Sheet and Strip in Coils From
Japan: Preliminary Results of Antidumping Duty Administrative
Review, 70 FR 18369 (April 11, 2005) (unchanged in final results).
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As stated above, section 776(b) of the Act provides that, if the
Department finds that an interested party fails to cooperate by not
acting to the best of its ability to comply with requests for
information, the Department may use an inference that is adverse to the
interests of that party in selecting from the facts otherwise
available. See also Notice of Final Results of Antidumping Duty
Administrative Review: Stainless Steel Bar from India, 70 FR 54023,
54025-26 (September 13, 2005); and Notice of Final Determination of
Sales at Less Than Fair Value and Final Negative Critical
Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67
FR 55792, 55794-96 (August 30, 2002). Adverse inferences may be
employed ``to ensure that the party does not obtain a more favorable
result by failing to cooperate than if it had cooperated fully.'' See
SAA at 870. As a result of Jilin's termination of participation from
the instant proceeding, the Department is not granting Jilin a separate
rate and considers Jilin part of the PRC-wide entity. See ``PRC-Wide
Entity and Selection of Adverse Facts Available Rate'' section below.
See also the ``Corroboration'' section below for a discussion of the
probative value of the PRC-wide rate of 228.11 percent rate.
PRC-Wide Entity and Selection of Adverse Facts Available (``AFA'') Rate
As noted above, the Department determined that, as a result of
Jilin's termination of participation from the instant proceeding, the
Department is not granting Jilin a separate rate and considers Jilin
part of the PRC-wide entity. Thus, the Department finds that the PRC-
wide entity, including Jilin, withheld requested information, failed to
provide information in a timely manner and in the form requested, and
significantly impeded this proceeding. Moreover, by refusing to answer
the Department's questionnaire, the PRC-wide entity, including Jilin,
failed to cooperate to the best of its ability. Therefore, the
Department must rely on adverse facts otherwise available in order to
determine a margin for the PRC-wide entity, pursuant to section
776(a)(2)(A), (B), (C) and 776(b) of the Act.\20\ By doing so, the
Department ensures that the companies that are part of the PRC-wide
entity will not obtain a more favorable result by failing to cooperate
than had they cooperated fully in this review.
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\20\ See, e.g., Non-Malleable Cast Iron Pipe Fittings from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 71 FR 69546 (December 1, 2006) and
accompanying Issues and Decision Memorandum at Comment 1; see also
Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam: Preliminary Results of the First Administrative Review and
New Shipper Review, 72 FR 10689, 10692 (March 9, 2007) (decision to
apply total AFA to the NME-wide entity), unchanged in Certain Frozen
Warmwater Shrimp From the Socialist Republic of Vietnam: Final
Results of the First Antidumping Duty Administrative Review and
First New Shipper Review, 72 FR 52052 (September 12, 2007).
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In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from (1) the petition, (2) a final determination in
the investigation, (3) any previous review or determination, or (4) any
information placed on the record. In reviews, the Department normally
selects, as AFA, the highest rate on the record of any segment of the
proceeding. See, e.g., Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, From the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 74 FR 3987, 3989
(January 22, 2009). The Court of International Trade (``CIT'') and the
Federal Circuit have consistently upheld the Department's practice in
this regard. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185,
1190 (Fed. Circ. 1990) (``Rhone Poulenc''); NSK Ltd. v. United States,
346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 percent total
AFA rate, the highest available dumping margin from a different
respondent in an LTFV investigation); see also Kompass Food Trading
Int'l v. United States, 24 CIT 678, 689 (2000) (upholding a 51.16
percent total AFA rate, the highest available dumping margin from a
different, fully cooperative respondent); and Shanghai Taoen
International Trading Co., Ltd. v. United States, 360 F. Supp 2d 1339,
1348 (CIT 2005) (upholding a 223.01 percent total AFA rate, the highest
available dumping margin from a different respondent in a previous
administrative review).
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
sufficiently adverse ``as to effectuate the purpose of the facts
available role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Static
Random Access Memory Semiconductors from Taiwan; Final Determination of
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998).
The Department's practice also ensures ``that the party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.'' See SAA at 870; see also Final Determination of
Sales at Less than Fair Value: Certain Frozen and Canned Warmwater
Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004); D&L Supply
Co. v. United States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In
choosing the appropriate balance between providing respondents with an
incentive to respond accurately and imposing a rate that is reasonably
related to the respondent's prior commercial activity, selecting the
highest prior margin ``reflects a common sense inference that the
highest prior margin is the most probative evidence of current margins,
because, if it were not so, the importer, knowing of the rule, would
have produced current information showing the margin to be less.''
Rhone Poulenc, 899 F.2d at 1190. Consistent with the statute, court
precedent, and its normal practice, the Department has assigned the
rate of 228.11 percent, the highest rate on the record of any segment
of the proceeding, to the PRC-wide entity, which includes Jilin, as
AFA. See e.g., Certain Frozen Warmwater Shrimp from the People's
Republic of China: Notice of Final Results And Rescission, In Part, of
2004/2006 Antidumping Duty Administrative and New Shipper Reviews, 72
FR 52049 (September 12, 2007). See
[[Page 21323]]
``Corroboration of Information'' section below.
Corroboration of Information
Section 776(c) of the Act requires that the Department corroborate,
to the extent practicable, secondary information on which it relies as
facts available. ``Secondary information'' is described in the SAA as
``information derived from the petition that gave rise to the
investigation or review, the final determination concerning subject
merchandise, or any previous review under section 751 concerning the
subject merchandise.'' See SAA at 870. The SAA states that
``corroborate'' means to determine that the information has probative
value. To be considered corroborated, information must be found to be
both reliable and relevant.\21\ The Department is applying as AFA the
highest rate from any segment of this administrative proceeding, which
is the rate currently applicable to all exporters subject to the PRC-
wide rate, including Jilin. The AFA rate in the current review (i.e.,
the PRC-wide rate of 228.11 percent) represents the highest rate from
the petition in the LTFV investigation. See Order.
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\21\ See 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) unchanged in 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; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825 (March
13, 1997).
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For purposes of corroboration, the Department will consider whether
that margin is both reliable and relevant. The AFA rate the Department
is applying for the current review was corroborated in the LTFV
investigation.\22\ No information has been presented in the current
review that calls into question the reliability of this information.
Thus, the Department finds the information continues to be reliable.
---------------------------------------------------------------------------
\22\ See Final Determination of Sales at Less Than Fair Value:
Certain Activated Carbon from the People's Republic of China, 72 FR
9508 (March 2, 2007) (``Activated Carbon LTFV''). An amended final
determination was published on March 30, 2007. See Notice of Amended
Final Determination of Sales at Less Than Fair Value: Certain
Activated Carbon from the People's Republic of China, 72 FR 15099
(March 30, 2007).
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With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. For example, in Fresh Cut Flowers from Mexico;
Final Results of Antidumping Administrative Review, 61 FR 6812, 6814
(February 22, 1996), the Department disregarded the highest margin in
that case as adverse best information available (the predecessor to
facts available) because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin. The information used in calculating this margin was based on
sales and production data submitted by the petitioner in the LTFV
investigation, together with the most appropriate surrogate value
information available to the Department chosen from submissions by the
parties in the LTFV investigation, as well as information gathered by
the Department itself. See Activated Carbon LTFV. Furthermore, the
calculation of this margin was subject to comment from interested
parties in the proceeding. As there is no information on the record of
this review that demonstrates that this rate is not appropriate to use
as AFA, the Department determines that this rate has relevance.
As the 228.11 percent rate is both reliable and relevant, the
Department determines that it has probative value. Accordingly, the
Department determines that the calculated rate of 228.11 percent, which
is the current PRC-wide rate, is in accord with the requirement of
section 776(c) of the Act that secondary information be corroborated to
the extent practicable (i.e., that it have probative value). The
Department has assigned this AFA rate to exports of the subject
merchandise by the PRC-wide entity, which includes Jilin.
Separate Rates
In the Separate Rates Application and Certification Letter,\23\ the
Department notified parties of the recent application and certification
process by which exporters and producers may obtain separate rate
status in an NME review. The process requires exporters and producers
to submit a separate rate status certification and/or application. See
also Policy Bulletin 05.1: Separate-Rates Practice and Application of
Combination Rates in Antidumping Investigations involving Non-Market
Economy Countries, (April 5, 2005) (``Policy Bulletin 05.1''),
available at: https://ia.ita.doc.gov. However, the standard for
eligibility for a separate rate (which is whether a firm can
demonstrate an absence of both de jure and de facto government control
over its export activities) has not changed.
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\23\ See the Department's letter to interested parties entitled,
``Administrative Review of Certain Activated Carbon from the
People's Republic of China: Separate Rate Application and Separate
Rate Certification,'' dated August 15, 2008 (``Separate Rates
Application and Certification Letter'').
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A designation of a country as an NME remains in effect until it is
revoked by the Department. See section 771(18)(c)(i) of the Act. In
proceedings involving NME countries, it is the Department's practice to
begin with a rebuttable presumption that all companies within the
country are subject to government control and thus should be assessed a
single antidumping duty rate. See, e.g., Policy Bulletin 05.1; see also
Notice of Final Determination of Sales at Less Than Fair Value, and
Affirmative Critical Circumstances, In Part: Certain Lined Paper
Products from the People's Republic of China, 71 FR 53079, 53080
(September 8, 2006); Final Determination of Sales at Less Than Fair
Value and Final Partial Affirmative Determination of Critical
Circumstances: Diamond Sawblades and Parts Thereof from the People's
Republic of China, 71 FR 29303, 29307 (May 22, 2006). It is the
Department's policy to assign all exporters of merchandise subject to
investigation in an NME country this single rate unless an exporter can
affirmatively demonstrate that it is sufficiently independent so as to
be entitled to a separate rate. Id. Exporters can demonstrate this
independence through the absence of both de jure and de facto
government control over export activities. Id. The Department analyzes
each entity exporting the subject merchandise under a test arising from
the Notice of 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 further developed in 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''). However, if the Department determines that a company is
wholly foreign-owned or located in a market economy, then a separate
rate analysis is not necessary to determine whether it is independent
from government control. See, e.g., Final Results of Antidumping Duty
Administrative Review: Petroleum Wax Candles from the People's Republic
of China, 72 FR 52355, 52356 (September 13, 2007).
Excluding the companies selected for individual review, the
Department received separate rate applications or certifications from
the following
[[Page 21324]]
companies: Ningxia Huahui Activated Carbon Co., Ltd.; Ningxia Lingzhou
Foreign Trade Co., Ltd.; Tangshan Solid Carbon Co., Ltd.; Tianjin
Maijin Industries Co., Ltd.; Datong Municipal Yunguang Activated Carbon
Co., Ltd.; Hebei Foreign Trade Advertisement Company; and Beijing
Pacific Activated Carbon Products Co., Ltd. Additionally, the
Department received completed responses to the Section A portion of the
NME questionnaire from CCT, Jacobi, and GHC, which contained
information pertaining to the companies' eligibility for a separate
rate. However, Ningxia Mineral & Chemical Limited, one of the companies
upon which the Department initiated an administrative review that has
not been rescinded, did not submit either a separate-rate application
or certification. Therefore, because Ningxia Mineral & Chemical Limited
did not demonstrate its eligibility for separate rate status, it has
now been included as part of the PRC-wide entity. Also, as noted above,
Jilin has not participated in this administrative review. Therefore,
Jilin (including affiliate Jilin Province Bright Future Industry and
Commerce Co., Ltd.) has failed to demonstrate its eligibility for a
separate rate.
Separate Rate Recipients
1. Wholly Foreign-Owned
CCT and Jacobi have reported that they are wholly foreign-owned.
CCT reported that 100 percent of its shares are held by Calgon Carbon
Corporation, which is located in the United States. See CCT's Section A
Questionnaire Response dated September 16, 2008, at pages 2-4. Jacobi
reported that it is wholly owned by a company located in a market-
economy country, Sweden. See Jacobi's Section A Questionnaire Response
dated September 5, 2008 at page 3. Therefore, there is no PRC ownership
of CCT or Jacobi, and because the Department has no evidence indicating
that either company is under the control of the PRC, a separate rates
analysis is not necessary to determine whether they are independent
from government control.\24\ Additionally, one of the exporters under
review not selected for individual review, Tangshan Solid Carbon Co.,
Ltd., reported in its separate-rate certification that it is 100
percent foreign owned. See Tangshan Solid Carbon Co. Ltd.'s Separate
Rate Certification dated September 15, 2008, at 2. Accordingly, the
Department has preliminarily granted separate rate status to CCT,
Jacobi, and Tangshan Solid Carbon Co. Ltd.
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\24\ See Brake Rotors From the People's Republic of China:
Preliminary Results and Partial Rescission of the Fourth New Shipper
Review and Rescission of the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001), unchanged in the final
determination; Notice of Final Determination of Sales at Less Than
Fair Value: Creatine Monohydrate From the People's Republic of
China, 64 FR 71104 (December 20, 1999).
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2. Joint Ventures Between Chinese and Foreign Companies or Wholly
Chinese-Owned Companies
GHC \25\ and six of the separate rate applicants in this
administrative review stated that they are either joint ventures
between Chinese and foreign companies or are wholly Chinese-owned
companies. The Department has analyzed whether GHC and the separate-
rate applicants have demonstrated the absence of de jure and de facto
governmental control over their respective export activities.
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\25\ See GHC's Section A Questionnaire Response dated September
5, 2008, at pages 2-4. See also Beijing Pacific Activated Carbon
Products Co., Ltd.'s Separate Rate Certification dated September 15,
2008 at Exhibit 4.
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a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of companies.
See Sparklers, 56 FR at 20589.
The evidence provided by GHC and the six separate rate applicants
supports a preliminary finding of de jure absence of government control
based on the following: (1) An absence of restrictive stipulations
associated with the individual exporter's business and export licenses;
(2) there are applicable legislative enactments decentralizing control
of the companies; and (3) there are formal measures by the government
decentralizing control of companies. See, e.g., GHC's Section A
Questionnaire Response dated September 5, 2008, at pages 2-4; Datong
Municipal Yunguang Activated Carbon Co., Ltd.'s Separate Rate
Certification dated September 15, 2008, at Exhibit 3; Hebei Foreign
Trade and Advertising Corp.'s Separate Rate Certification dated
September 15, 2008, at 3-4.
b. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto government control of
its export functions: (1) Whether the export prices are set by or are
subject to the approval of a government agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses. See Silicon Carbide, 59 FR at 22586-87; see also
Notice of Final Determination of Sales at Less Than Fair Value:
Furfuryl Alcohol From the People's Republic of China, 60 FR 22544,
22545 (May 8, 1995). The Department has determined that an analysis of
de facto control is critical in determining whether respondents are, in
fact, subject to a degree of government control which would preclude
the Department from assigning separate rates. The evidence provided by
GHC and the six separate rate applicants supports a preliminary finding
of de facto absence of government control based on the following: (1)
The companies set their own export prices independent of the government
and without the approval of a government authority; (2) the companies
have authority to negotiate and sign contracts and other agreements;
(3) the companies have autonomy from the government in making decisions
regarding the selection of management; and (4) there is no restriction
on any of the companies' use of export revenue. See, e.g., GHC's
Section A Questionnaire Response dated September 5, 2008, at pages 2-4;
Ningxia Lingzhou Foreign Trade Company's Separate Rate Application
dated October 15, 2008, at 10 and Supplemental Response dated January
8, 2009, at 3-4; Tianjin Maijin Industries Co., Ltd.'s Separate Rate
Certification dated September 9, 2008, at Exhibit 1. Therefore, the
Department preliminarily finds that GHC and six separate-rate
applicants have established that they qualify for a separate rate under
the criteria established by Silicon Carbide and Sparklers.
Separate Rate Calculation
As stated previously, this review covers 14 exporters. Of those,
the Department selected two exporters, CCT and Jacobi (including
affiliates), as mandatory respondents in this review and one voluntary
respondent, GHC (including affiliate Beijing Pacific Activated Carbon
Products Co., Ltd.). As stated above, two companies, Ningxia
[[Page 21325]]
Mineral & Chemical Limited and Jilin (including affiliate, Jilin
Province Bright Future Industry and Commerce Co., Ltd.), are part of
the PRC-Wide entity, and thus, are not entitled to a separate rate. The
remaining six companies submitted timely information as requested by
the Department and remain subject to this review as cooperative
separate rate respondents.
For the exporters subject to this review that were determined to be
eligible for separate rate status, but were not selected as mandatory
respondents, the Department normally establishes a simple-average
margin based on an average of the rates it calculated for the mandatory
respondents, excluding any rates that are zero, de minimis, or based
entirely on AFA.\26\ Accordingly, for these preliminary results, the
rates calculated for Jacobi and CCT (excluding GHC, a voluntary
respondent) are applied as the rate for non-selected separate entities.
That rate is 119.19 percent. Entities receiving this rate are
identified by name in the ``Preliminary Results of Review'' section of
this notice.
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\26\ See, e.g., Wooden Bedroom Furniture From the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review, Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR 8273, 8279
(February 13, 2008) (unchanged in Wooden Bedroom Furniture from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August
20, 2008)).
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Date of Sale
CCT, Jacobi, and GHC reported the invoice date as the date of sale
because they claim that, for their U.S. sales of subject merchandise
made during the POR, the material terms of sale were established on the
invoice date. The Department preliminarily determines that the invoice
date is the most appropriate date to use as CCT's, Jacobi's, and GHC's
date of sale in accordance with 19 CFR 351.401(i) and the Department's
long-standing practice of determining the date of sale.\27\
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\27\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Frozen and Canned Warmwater Shrimp from
Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues
and Decision Memorandum at Comment 10.
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Fair Value Comparisons
To determine whether sales of certain activated carbon to the
United States by CCT, Jacobi, and GHC were made at less than fair
value, the Department compared either export price (``EP'') or
constructed export price (``CEP'') to NV, as described in the ``U.S.
Price,'' and ``Normal Value'' sections below.
U.S. Price
Export Price
In accordance with section 772(a) of the Act, the Department
calculated the EP for a portion of sales to the United States for GHC
because the first sale to an unaffiliated party was made before the
date of importation and the use of CEP was not otherwise warranted. The
Department calculated EP based on the price to unaffiliated purchasers
in the United States. In accordance with section 772(c) of the Act, as
appropriate, the Department deducted from the starting price to
unaffiliated purchasers foreign inland freight and brokerage and
handling. Each of these services was either provided by an NME vendor
or paid for using an NME currency. Thus, the Department based the
deduction of these movement charges on surrogate values. Additionally,
for international freight provided by a market economy provider and
paid in U.S. dollars, the Department used the actual cost per kilogram
of the freight. See Prelim Surrogate Value Memo for details regarding
the surrogate values for movement expenses.
Constructed Export Price
For all
