Wire Decking from the People's Republic of China: Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 1597-1608 [2010-372]
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Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Notices
that the proposal is in the public
interest;
Now, therefore, the Board hereby
grants authority for subzone status for
activity related to the manufacturing
and distribution of aluminum foil liner
stock and aluminum foil at the facilities
of Reynolds Packaging LLC, located in
Louisville, Kentucky (Subzone 29J), as
described in the application and
Federal Register notice, subject to the
FTZ Act and the Board’s regulations,
including Section 400.28.
Signed at Washington, DC, this 30th
day of December 2009.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration, Alternate Chairman,
Foreign–Trade Zones Board.
Attest:
Pierre V. Duy,
Acting Executive Secretary.
[FR Doc. 2010–376 Filed 1–11–10; 8:45 am]
Accordingly, NMFS establishes the
harvest guideline at zero lobsters for the
NWHI commercial lobster fishery for
calendar year 2010. Thus, no harvest of
NWHI lobster resources is allowed.
Furthermore, the NMFS Regional
Administrator determined that all 15
NWHI lobster limited entry permits held
by vessel owners (i.e., permit holders)
are no longer valid. This action
complies with the final rule governing
compensation to Federal commercial
bottomfish and lobster fishermen due to
fishery closures in the Monument (74
FR 47119, September 15, 2009). During
December 2009 and January 2010,
eligible NWHI lobster permit holders
voluntarily accepted and received
monetary payments, as authorized by
Congress under the Consolidated
Appropriations Act of 2008 (P.L. 110–
161). Thus, no fishing for NWHI lobster
resources is allowed.
Authority: 16 U.S.C. 1801 et seq.
BILLING CODE 3510–DS–S
Dated: January 6, 2010.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[FR Doc. 2010–388 Filed 1–11–10; 8:45 am]
BILLING CODE 3510–22–S
RIN 0648–XT33
Western Pacific Crustacean Fisheries;
2010 Northwestern Hawaiian Islands
Lobster Harvest Guideline
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of lobster harvest
guideline.
SUMMARY: NMFS announces that the
annual harvest guideline for the
commercial lobster fishery in the
Northwestern Hawaiian Islands (NWHI)
for calendar year 2010 is established at
zero lobsters.
FOR FURTHER INFORMATION CONTACT: Bob
Harman, NMFS Pacific Islands Region,
808–944–2271.
SUPPLEMENTARY INFORMATION: The NWHI
commercial lobster fishery is managed
under the Fishery Management Plan for
Crustacean Fisheries of the Western
Pacific Region. The regulations at 50
CFR 665.50(b)(2) require NMFS to
publish an annual harvest guideline for
lobster Permit Area 1, comprised of
Federal waters around the NWHI.
Regulations governing the
Papahanaumokuakea Marine National
Monument in the NWHI prohibit the
unpermitted removal of monument
resources (50 CFR 404.7), and establish
a zero annual harvest guideline for
lobsters (50 CFR 404.10(a)).
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DEPARTMENT OF COMMERCE
International Trade Administration
(A–570–949)
Wire Decking from the People’s
Republic of China: Notice of
Preliminary Determination of Sales at
Less Than Fair Value and
Postponement of Final Determination
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: January 12, 2010.
SUMMARY: The Department of Commerce
(‘‘Department’’) preliminarily determines
that wire decking from the People’s
Republic of China (‘‘PRC’’) is being, or is
likely to be, sold in the United States at
less than fair value (‘‘LTFV’’), as
provided in section 733 of the Tariff Act
of 1930, as amended (‘‘the Act’’). The
estimated margins of sales at LTFV are
shown in the ‘‘Preliminary
Determination’’ section of this notice.
Pursuant to requests from interested
parties, we are postponing the final
determination and extending the
provisional measures from a four–
month period to not more than six
months. Accordingly, we will make our
final determination not later than 135
days after publication of the preliminary
determination.
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1597
FOR FURTHER INFORMATION CONTACT:
Frances Veith or Trisha Tran, AD/CVD
Operations, Office 8, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–4295 or (202) 482–
4852, respectively.
SUPPLEMENTARY INFORMATION:
Initiation
On June 5, 2009, the Department
received an antidumping duty (‘‘AD’’)
petition concerning imports of wire
decking from the PRC filed in proper
form by AWP Industries, Inc., ITC
Manufacturing, Inc., J&L Wire Cloth,
Inc., and Nashville Wire Products Mfg.
Co., Inc., (collectively, ‘‘Petitioners’’).
See the Petition for the Imposition of
Antidumping and Countervailing Duties
Pursuant to Sections 701 and 731 of the
Tariff Act of 1930, as amended
(‘‘Petition’’), filed on June 5, 2009. On
June 22, 2009, Petitioners submitted a
letter stating that another domestic
producer of the like product, Wireway
Husky Corporation, had joined the
petition.
The Department initiated this
investigation on June 25, 2009.1 In the
Initiation Notice, the Department
notified parties of the application
process by which exporters and
producers may obtain separate–rate
status in non–market economy (‘‘NME’’)
investigations. The process requires
exporters and producers to submit a
separate–rate status application
(‘‘SRA’’)2 and to demonstrate an absence
of both de jure and de facto government
control over its export activities. The
SRA for this investigation was posted on
the Department’s website https://
ia.ita.doc.gov/ia–highlights-and–
news.html on July 2, 2009. The due date
for filing an SRA was August 31, 2009.
On July 31, 2009, the International
Trade Commission (‘‘ITC’’) determined
that there is a reasonable indication that
an industry in the United States is
materially injured or threatened with
material injury by reason of imports of
wire decking from the PRC.3
1 See Wire Decking from the People’s Republic of
China: Initiation of Antidumping Duty
Investigation, 74 FR 31691 (July 2, 2009) (‘‘Initiation
Notice’’).
2 See 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/policy/
bull05-1.pdf.
3 See Investigation Nos. 701-TA-466 and 731-TA116 (Preliminary): Wire Decking from China, 74 FR
38229 (July 31, 2009).
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Period of Investigation
The period of investigation (‘‘POI’’) is
October 1, 2008, through March 31,
2009. This period corresponds to the
two most recent fiscal quarters prior to
the month of the filing of the petition,
which was June 2009. See 19 CFR
351.204(b)(1).
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Postponement of Preliminary
Determination
On October 15, 2009, petitioners
made a timely request pursuant to
section 733(c)(1)(A) of the Act and 19
CFR 351.205(b)(2) and (e) for a 50–day
postponement of the preliminary
determination. On October 27, 2009, the
Department published a postponement
of the preliminary antidumping duty
determination on wire decking from the
PRC.4
Scope of the Investigation
The scope of the investigation covers
welded–wire rack decking, which is
also known as, among other things,
‘‘pallet rack decking,’’ ‘‘wire rack
decking,’’ ‘‘wire mesh decking,’’ ‘‘bulk
storage shelving,’’ or ‘‘welded–wire
decking.’’ Wire decking consists of wire
mesh that is reinforced with structural
supports and designed to be load
bearing. The structural supports include
sheet metal support channels, or other
structural supports, that reinforce the
wire mesh and that are welded or
otherwise affixed to the wire mesh,
regardless of whether the wire mesh and
supports are assembled or unassembled
and whether shipped as a kit or
packaged separately. Wire decking is
produced from carbon or alloy steel
wire that has been welded into a mesh
pattern. The wire may be galvanized or
plated (e.g., chrome, zinc or nickel
coated), coated (e.g., with paint, epoxy,
or plastic), or uncoated (‘‘raw’’). The
wire may be drawn or rolled and may
have a round, square or other profile.
Wire decking is sold in a variety of wire
gauges. The wire diameters used in the
decking mesh are 0.105 inches or greater
for round wire. For wire other than
round wire, the distance between any
two points on a cross–section of the
wire is 0.105 inches or greater. Wire
decking reinforced with structural
supports is designed generally for
industrial and other commercial storage
rack systems.
Wire decking is produced to various
profiles, including, but not limited to, a
flat (‘‘flush’’) profile, an upward curved
back edge profile (‘‘backstop’’) or
4 See Wire Decking from the People’s Republic of
China: Postponement of Preliminary
Determinations of Antidumping Duty
Investigations, 74 FR 55211 (October 27, 2009).
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downward curved edge profile
(‘‘waterfalls’’), depending on the rack
storage system. The wire decking may or
may not be anchored to the rack storage
system. The scope does not cover the
metal rack storage system, comprised of
metal uprights and cross beams, on
which the wire decking is ultimately
installed. Also excluded from the scope
is wire mesh shelving that is not
reinforced with structural supports and
is designed for use without structural
supports.
Wire decking enters the United States
through several basket categories in the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’). U.S. Customs
and Border Protection has issued a
ruling (NY F84777) that wire decking is
to be classified under HTSUS
9403.90.8040. Wire decking has also
been entered under HTSUS 7217.10,
7217.20, 7326.20, 7326.90, 9403.20.0020
and 9403.20.0030. While HTSUS
subheadings are provided for
convenience and Customs purposes, the
written description of the scope of the
investigations is dispositive.
Scope Comments
As discussed in the preamble to the
regulations, we set aside a period for
interested parties to raise issues
regarding product coverage. See
Antidumping Duties; Countervailing
Duties; Final Rule, 62 FR 27296, 27323
(May 19, 1997). The Department
encouraged all interested parties to
submit such comments within 20
calendar days of signature of the
Initiation Notice. See Initiation Notice,
74 FR at 31692. The Department did not
receive scope comments from any
interested party.
Non–Market Economy Country
For purposes of initiation, Petitioners
submitted an LTFV analysis for the PRC
as an NME.5 The Department’s most
recent examination of the PRC’s market
status determined that NME status
should continue for the PRC.6
Additionally, in two recent
investigations, the Department also
determined that the PRC is an NME
country.7 In accordance with section
5 Initiation
Notice, 72 FR at 31693-94.
the Department’s memorandum entitled,
‘‘Antidumping Duty Investigation of Certain Lined
Paper Products from the People’s Republic of China
(‘‘China’’) - China’s status as a non-market economy
(‘‘NME’’),’’ dated August 30, 2006. This document is
available online at: https:// ia.ita.doc.gov/download/
prc-nmestatus/ prc-lined-paper-memo08302006.pdf.
7 See, e.g., Certain Kitchen Appliance Shelving
and Racks From the People’s Republic of China:
Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final
Determination, 74 FR 9591 ( March 5, 2009)
6 See
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771(18)(C)(i) of the Act, the NME status
remains in effect until revoked by the
Department. The Department has not
revoked the PRC’s status as an NME
country, and we have therefore treated
the PRC as an NME in this preliminary
determination and applied our NME
methodology.
Selection of Respondents
In accordance with section 777A(c)(2)
of the Act, the Department selected the
two largest exporters of wire decking
(i.e., Dalian Huameilong Metal Products
Co., Ltd. (‘‘DHMP’’) and Dalian
Eastfound Metal Products Co., Ltd.
(‘‘Eastfound Metal’’) and its affiliate
Dalian Eastfound Material Handling
Products Co., Ltd. (‘‘Eastfound
Material’’) (collectively, ‘‘Eastfound’’) by
volume as the mandatory respondents
in this investigation based on the
quantity and value (‘‘Q&V’’) information
from exporters/producers that were
identified in the Petition, of which eight
firms filed timely Q&V questionnaire
responses.8 Of the eight Q&V
questionnaire responses, two companies
(i.e. Eastfound Material and Eastfound
Metal) filed a consolidated Q&V
questionnaire response.
The Department issued its
antidumping questionnaire to DHMP
and Eastfound on August 31, 2009. In its
questionnaire, the Department requested
that the respondents provide a response
to section A of the Department’s
questionnaire on September 21, 2009,
and to sections C and D of the
questionnaire on October 7, 2009. On
September 16, 2009, and September 18,
2009, the Department granted DHMP’s
and Eastfound’s requests, respectively,
to extend the deadline to submit
Sections A, C, and D. As such, Section
A was timely submitted on September
28, 2009, by both parties. DHMP timely
submitted its Sections C and D
Response on October 16, 2009. On
October 16, 2009, the Department
granted Eastfound an extension to
submit its Sections C and D
(‘‘Kitchen Racks Prelim’’) unchanged in Certain
Kitchen Appliance Shelving and Racks From the
People’s Republic of China: Final Determination of
Sales at Less Than Fair Value, 74 FR 36656 (July
24, 2009) (‘‘Kitchen Racks Final’’) and Certain Tow
Behind Lawn Groomers and Certain Parts Thereof
from the People’s Republic of China: Preliminary
Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 74 FR 4929
(January 28, 2009) unchanged in Certain Tow
Behind Lawn Groomers and Certain Parts Thereof
from the People’s Republic of China: Final
Determination of Sales at Less Than Fair Value, 74
FR 29167 (June 19, 2009).
8 See the Department’s memorandum entitled,
‘‘Antidumping Duty Investigation of Wire Decking
from the People’s Republic of China: Selection of
Respondents,’’ dated August 19, 2009 (‘‘Respondent
Selection Memo’’).
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questionnaire. Eastfound timely
submitted its Sections C and D
Response on October 23, 2009. The
Department issued several supplemental
questionnaires to both DHMP and
Eastfound between October and
December 2009. Both respondents
responded timely to those supplemental
questionnaires.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Postponement of Final Determination
and Extension of Provisional Measures
Pursuant to section 735(a)(2) of the
Act, between December 31, 2009, and
January 4, 2010, Eastfound, DHMP, and
Petitioners requested that in the event of
an affirmative preliminary
determination in this investigation, the
Department postpone the final
determination by 60 days. Eastfound,
DHMP, and Petitioners also each
requested that the Department extend
the application of the provisional
measures prescribed under 19 CFR
351.210(e)(2) from a four–month period
to a six–month period. In accordance
with section 733(d) of the Act and 19
CFR 351.210(b), because (1) our
preliminary determination is
affirmative, (2) the requesting exporters
account for a significant proportion of
exports of the subject merchandise, and
(3) no compelling reasons for denial
exist, we are granting the requests and
are postponing the final determination
until no later than 135 days after the
publication of this notice in the Federal
Register. Suspension of liquidation will
be extended accordingly.
Surrogate Country
When the Department is investigating
imports from an NME, section 773(c)(1)
of the Act directs it to base normal
value, in most circumstances, on the
NME producer’s factors of production
(‘‘FOPs’’) valued in a surrogate market–
economy country or countries
considered to be appropriate by the
Department. In accordance with section
773(c)(4) of the Act, in valuing the
FOPs, the Department shall utilize, to
the extent possible, the prices or costs
of FOPs in one or more market–
economy countries that are at a level of
economic development comparable to
that of the NME country and are
significant producers of comparable
merchandise. The sources of the
surrogate values we have used in this
investigation are discussed under the
‘‘Normal Value’’ section below.
The Department’s practice with
respect to determining economic
comparability is explained in Policy
Bulletin 04.1,9 which states that ‘‘OP
9 See Policy Bulletin 04.1: Non-Market Economy
Surrogate Country Selection Process, (March 1,
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{Office of Policy} determines per capita
economic comparability on the basis of
per capita gross national income, as
reported in the most current annual
issue of the World Development Report
(The World Bank).’’ On September 15,
2009, the Department identified six
countries as being at a level of economic
development comparable to the PRC for
the specified POR: India, the
Philippines, Indonesia, Colombia,
Thailand, and Peru.10 The Department
considers the six countries identified in
the Surrogate Countries Memo as
‘‘equally comparable in terms of
economic development.’’ See Policy
Bulletin 04.1 at 2. Thus, we find that
India, the Philippines, Indonesia,
Colombia, Thailand, and Peru are all at
an economic level of development
equally comparable to that of the PRC.
On September 30, 2009, the
Department invited all interested parties
to submit comments on the surrogate
country selection.11 The Department did
not receive any comments regarding the
Department’s selection of a surrogate
country for the preliminary
determination.
Policy Bulletin 04.1 provides some
guidance on identifying comparable
merchandise and selecting a producer of
comparable merchandise. As noted in
the Policy Bulletin, comparable
merchandise is not defined in the
statute or the regulations, since it is best
determined on a case–by-case basis. See
Policy Bulletin 04.1 at 2. As further
noted in Policy Bulletin 04.1, in all
cases, if identical merchandise is
produced, the country qualifies as a
producer of comparable merchandise.
Id.
The Department examined worldwide
export data for comparable
merchandise, using the six–digit level of
the HTS numbers listed in the scope
language for this investigation.12
Specifically, we reviewed the POI
2004), (‘‘Policy Bulletin 04.1’’) at Attachment II of
the Department’s Surrogate Country Letter, also
available at https://ia.ita.doc.gov/policy/bull041.html.
10 See the Department’s Memorandum from Kelly
Parkhill, Acting Director, Office of Policy, to Wendy
Frankel, Office Director, AD/CVD Operations,
Office 8, regarding, ‘‘Request for a List of Surrogate
Countries for an Antidumping Duty Investigation of
Wire Decking from the People’s Republic of China
(‘‘PRC’’),’’ dated September 15, 2009 (‘‘Surrogate
Countries Memo’’).
11 See the Department’s letter regarding,
‘‘Antidumping Duty Investigation of Wire Decking
from the People’s Republic of China ’’ requesting all
interested parties to provide comments on
surrogate-country selection and provide surrogate
FOP values from the potential surrogate countries
(i.e., India, Indonesia, the Philippines, Thailand,
Colombia, and Peru), dated September 30, 2009.
12 Because the Department was unable to find
production data, we relied on export data as a
substitute for overall production data in this case.
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export data from the World Trade Atlas
(‘‘WTA’’) for the HTS headings. The
merchandise subject to the scope of the
order is currently classifiable under
subheading HTSUS 9403.90.8040. Wire
decking has also been entered under
HTSUS 7217.10, 7217.20, 7326.20,
7326.90, 9403.20.0020, and
9403.20.0030.13 The Department found
that, of the countries provided in the
Surrogate Country List, using the six–
digit level of the HTS numbers listed in
the scope language for this investigation
(the best data available to the
Department for this purpose), all six
countries were exporters of comparable
merchandise. Thus, all countries on the
Surrogate Country List are considered as
appropriate surrogates because each
exported comparable merchandise.
Policy Bulletin 04.1 also provides
some guidance on identifying
significant producers of comparable
merchandise and selecting a producer of
comparable merchandise. Further
analysis was required to determine
whether any of the countries which
produce comparable merchandise are
significant’ producers of that
comparable merchandise. The HTS data
is reported in either kilograms or pieces,
depending upon the HTS category and
country. The data we obtained shows
that, during the POI, worldwide exports
from these countries under the relevant
HTS categories were as follows: (1)
355,679 kilograms (HTS 7217.10,
7217.20) and 11,080,755 pieces (HTS
9403.90, 9403.20, 7326.20, 7326.90)
from Colombia; (2) 37,994,423 kilograms
from Indonesia; (3) 5,385,873 kilograms
from Philippines; (4) 89,367,977
kilograms from Thailand; (5) 1,065,699
kilograms (HTS 7217.10, 7217.20) and
618,727 pieces (HTS 9403.90, 9403.20,
7326.20, 7326.90) from Peru; and (6)
53,185,837 kilograms from India. We
find that these exports are sufficient to
establish that all of the potential
surrogate countries are significant
producers of comparable merchandise.
Thus, all countries on the Surrogate
Country List are considered as
appropriate surrogates because each
exported significant comparable
merchandise. Finally, we have reliable
data from India on the record that we
can use to value the FOPs. Petitioners,
DHMP, and Eastfound submitted
surrogate values using Indian sources,
suggesting greater availability of
appropriate surrogate value data in
India.
The Department is preliminarily
selecting India as the surrogate country
on the basis that: (1) it is at a similar
13 See Harmonized Tariff Schedule of the United
States (2007) (Rev. 2), available at www.usitc.gov.
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Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Notices
level of economic development
pursuant to section 773(c)(4) of the Act;
(2) it is a significant producer of
comparable merchandise; and (3) we
have reliable data from India that we
can use to value the FOPs. Thus, we
have calculated normal value (‘‘NV’’)
using Indian prices when available and
appropriate to the respondents’ FOPs.
See Surrogate Value Memorandum.14 In
accordance with 19 CFR
351.301(c)(3)(i), for the final
determination in an antidumping
investigation, interested parties may
submit publicly available information to
value the FOPs within 40 days after the
date of publication of the preliminary
determination.15
Surrogate Value Comments
Surrogate factor valuation comments
and surrogate value information with
which to value the FOPs in this
proceeding were filed on November 13,
2009, by DHMP and Petitioners. On
November 18, 2009, DHMP and
Eastfound filed rebuttal surrogate factor
valuation comments. On November 23,
2009, Eastfound filed additional
surrogate valuation comments. On
November 24, 2009, Petitioners filed
additional comments on appropriate
surrogate values for factors of
production reported by Eastfound and
DHMP. For a detailed discussion of the
surrogate values used in this LTFV
proceeding, see the ‘‘Factor Valuation’’
section below and the Surrogate Value
Memorandum.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Affiliation
Based on the evidence presented in
Eastfound’s questionnaire responses, we
preliminarily find that Eastfound Metal
is affiliated with Eastfound Material,
which also produces subject
merchandise, pursuant to sections
771(33)(E) and (G) of the Act. In
14 See the Department’s memorandum to the file
entitled, ‘‘Antidumping Investigation of Wire
Decking from the People’s Republic of China: Factor
Valuations for the Preliminary Determination,’’
dated concurrently with this notice (‘‘Surrogate
Value Memorandum’’).
15 In accordance with 19 CFR 351.301(c)(1), for
the final determination of this investigation,
interested parties may submit factual information to
rebut, clarify, or correct factual information
submitted by an interested party less than ten days
before, on, or after, the applicable deadline for
submission of such factual information. However,
the Department notes that 19 CFR 351.301(c)(1)
permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on
the record. The Department generally will not
accept the submission of additional, previously
absent-from-the-record alternative surrogate value
information pursuant to 19 CFR 351.301(c)(1). See
Glycine from the People’s Republic of China: Final
Results of Antidumping Duty Administrative
Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and
Decision Memorandum at Comment 2.
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15:14 Jan 11, 2010
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addition, based on the evidence
presented in Eastfound’s questionnaire
responses, we preliminarily find that
Eastfound Metal and Eastfound Material
should be collapsed for the purposes of
this investigation. This finding is based
on the determination that Eastfound
Metal and Eastfound Material are
affiliated, that Eastfound Metal and
Eastfound Material Handling are both
producers of identical products and no
retooling would be necessary in order to
restructure manufacturing priorities,
and that there is significant potential for
manipulation of price or production
between the parties. See 19 C.F.R. Sec.
351.401(f)(1) and (2). For further
discussion, see the Department’s
Memorandum regarding, ‘‘Antidumping
Duty Investigation of Wire Decking from
the People’s Republic of China:
Affiliation and Collapsing of Dalian
Eastfound Metal Products Co., Ltd. and
Dalian Eastfound Material Handling
Products Co., Ltd.,’’ dated concurrently
with this notice.
In response to allegations raised by
Petitioners,16 we reviewed Eastfound’s
relationship with its U.S. customer and
we preliminarily find that Eastfound
and its U.S. customer were not affiliated
during the POI under the meaning of
section 771(33) of the Act. Specifically,
based on Eastfound’s questionnaire
responses identifying its ownership
structure, we preliminarily find that
Eastfound is not affiliated with its U.S.
customer within the meaning of sections
771(33)(B) and (E) of the Act. In
addition, we preliminarily find that
Eastfound is not affiliated with its U.S.
customer within the meaning of sections
771(33)(F) and (G) of the Act, because in
its response, Eastfound presented
evidence that the distributor agreement
between Eastfound and its U.S.
customer does not offer either party
control over the other party to the
agreement. Accordingly, we have used
Eastfound’s reported export price (‘‘EP’’)
sales to the United States for the
preliminary determination. However,
we intend to issue additional questions
to Eastfound following the publication
of the preliminary determination with
respect to this affiliation issue.
Separate Rates
In the Initiation Notice, the
Department notified parties of the
application process by which exporters
16 See Letter from Kelley Drye & Warren LLP,
regarding ‘‘Wire Decking from the People’s Republic
of China - Eastfound Is Affiliated with Its Exclusive
North American Importer and Distributor,’’ dated
December 18, 2009, where they allege that
Eastfound and its U.S. Customer are affiliated
pursuant to sections 771(33)(B), (E), (F), and (G) of
the Act.
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and producers may obtain separate–rate
status in NME investigations. See
Initiation Notice, 74 FR at 31695. The
process requires exporters and
producers to submit an SRA. See also
Policy Bulletin 05.1.17 The standard for
eligibility for a separate rate is whether
a firm can demonstrate an absence of
both de jure and de facto government
control over its export activities. In this
instant investigation, the Department
received timely–filed SRA’s from seven
companies.18 The two mandatory
respondents (i.e., Eastfound Metal and
Eastfound Material (collectively
Eastfound) and DHMP) and the four
separate–rate respondents provided
company–specific information and
each19 stated that it meets the criteria
for the assignment of a separate rate.
In proceedings involving NME
countries, the Department has a
rebuttable presumption that all
companies within the country are
subject to government control and thus
should be assessed a single antidumping
duty rate. 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 demonstrate that it is
sufficiently independent so as to be
entitled to a separate rate. Exporters can
demonstrate this independence through
the absence of both de jure and de facto
governmental control over export
activities. The Department analyzes
each entity exporting the subject
merchandise under a test arising from
Final Determination of Sales at Less
Than Fair Value: Sparklers from the
People’s Republic of China, 56 FR 20588
17 Policy Bulletin 05.1 states: ‘‘while continuing
the practice of assigning separate rates only to
exporters, all separate rates that the Department
will now assign in its NME investigations will be
specific to those producers that supplied the
exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter
and all of the producers which supplied subject
merchandise to it during the period of investigation.
This practice applied both to mandatory
respondents receiving an individually calculated
separate rate as well as the pool of non-investigated
firms receiving the weighted-average of the
individually calculated rates. This practice is
referred to as the application of ≥combination rates≥
because such rates apply to specific combinations
of exporters and one or more producers. The cashdeposit rate assigned to an exporter will apply only
to merchandise both exported by the firm in
question and produced by a firm that supplied the
exporter during the period of investigation.’’ See
Policy Bulletin 05.1 at 6.
18 The seven separate-rate applicants are: (1)
Eastfound Material; (2) Eastfound Metal; (3) DHMP;
(4) Dandong Riqian Logistics Equipment Co. Ltd.
(‘‘Riqian’’); (5) Globsea Co., Ltd. (‘‘Globsea’’); (6)
Ningbo Xinguang Rack Co., Ltd. (‘‘Ningbo
Xinguang’’); and (7) Dalian Xingbo Metal Products
Co. Ltd. (‘‘Dalian Xingbo’’).
19 The non-selected respondents are as follows:
Riqian, Globsea, Ningbo Xinguang, and Dalian
Xingbo.
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(May 6, 1991) (‘‘Sparklers’’), as further
developed in 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. In this
investigation, one company, Eastfound
Material has provided company–
specific information that indicates it is
a wholly–foreign owned entity.
Therefore, a separate rate–analysis is not
necessary to determine whether it is
independent from government control.
The other remaining companies have
all stated that they are either joint
ventures between PRC and foreign
companies, or are wholly PRC–owned
companies. Thus, the Department must
analyze whether Eastfound Metal,
DHMP, Riqian, Globsea, Ningbo
Xinguang, and Dalian Xingbo can
demonstrate the absence of both de jure
and de facto government control over
their 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) other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Eastfound
Metal, DHMP, Riqian, Globsea, Ningbo
Xinguang, and Dalian Xingbo 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) applicable legislative
enactments that decentralize control of
the companies; and (3) formal measures
by the government decentralizing
control of companies. See each
company’s SRA submission, dated
August 21, 2009, through August 31,
2009, where each separate–rate
respondent stated that it had no
relationship with any level of the PRC
government with respect to ownership,
internal management, and business
operations.
b. Absence of De Facto Control
Typically, the Department considers
four factors in evaluating whether each
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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.
In this investigation, Eastfound Metal,
DHMP, Riqian, Globsea, Ningbo
Xinguang, and Dalian Xingbo each
asserted the following: (1) that the
export prices are not set by, and are not
subject to, the approval of a
governmental agency; (2) they have
authority to negotiate and sign contracts
and other agreements; (3) they have
autonomy from the government in
making decisions regarding the
selection of management; and (4) they
retain the proceeds of their export sales
and make independent decisions
regarding disposition of profits or
financing of losses. Additionally, each
of these companies’ SRA responses
indicate that its pricing during the POI
does not involve coordination among
exporters. See each company’s SRA
submissions dated August 21, 2009,
through August 31, 2009. However,
evidence placed on the record by Dalian
Xingbo indicates that it did not export
wire decking to the United States during
the POI. See the ‘‘Companies Not
Receiving a Separate Rate’’ section
below for further details.
Evidence placed on the record of this
investigation by Eastfound Material,
Eastfound Metal, DHMP, Riqian,
Globsea, and Ningbo Xinguang
demonstrate an absence of de jure and
de facto government control with
respect to their respective exports of the
merchandise under investigation, in
accordance with the criteria identified
in Sparklers and Silicon Carbide.
Therefore, we are preliminary granting a
separate rate to these entities.
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1601
Companies Not Receiving a Separate
Rate
We preliminarily determine that
Dalian Xingbo does not qualify for a
separate rate because Dalian Xingbo did
not export wire decking to the United
States during the POI. Dalian Xingbo
stated that the invoice it provided in its
SRA, which is dated within the POI, for
its first sale to an unaffiliated customer
in the United States, is not its
commercial invoice. See Dalian
Xingbo’s SRA dated August 21, 2009, at
Exhibit 1. The commercial invoice
provided by Dalian Xingbo is dated
outside the POI. See Dalian Xingbo’s
Supplemental SRA questionnaire dated
September 21, 2009, at Exhibit 1.
Furthermore, evidence on the record
(U.S. Customs and Border Protection
(‘‘CBP’’) entry summary form 7501)
indicates that Dalian Xingbo exported
the above goods from the PRC to the
United States prior to the POI. See
Dalian Xingbo’s SRA dated August 21,
2009, at Exhibit 1. Nevertheless, Dalian
Xingbo asserts that because the
shipment entered the United States
during the POI, this shipment represents
Dalian Xingbo’s first sale to an
unaffiliated customer in the United
States during the POI. See Dalian
Xingbo’s Supplemental SRA
questionnaire dated September 21,
2009, at 7/16.
In the introductory paragraph of the
Department’s SRA, we state that the
Department will limit its consideration
of SRAs in the wire decking
investigation to firms that either
exported or sold wire decking to the
United States during the POI. Though
Dalian Xingbo argues that the entry date
into the United States of its wire
decking establishes that it either
exported or sold wire decking to the
United States during the POI, the
Department normally considers the
shipment date as establishing when a
product is exported, and the Department
normally considers the date of invoice
as establishing the date of sale, unless
record evidence demonstrates
otherwise. The documentation provided
by Dalian Xingbo (i.e., CBP entry
summary form 7501 and commercial
invoice) indicate that the goods were
both sold and exported to the United
States prior to the POI. Thus, we
preliminarily determine that Dalian
Xingbo does not qualify for a separate
rate in this investigation.
In addition, though we received a
Q&V response from Brynick Enterprises
Limited and Shanghai Hesheng
Hardware Products Co., neither
company submitted a separate rate
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application, and therefore will be
treated as part of the PRC–wide entity.
Application of Facts Otherwise
Available and Total Adverse Facts
Available
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The PRC–Wide Entity and PRC–Wide
Rate
The Department has data that indicate
there were more exporters of wire
decking from the PRC than those
indicated in the response to our request
for Q&V information during the POI. See
the Department’s memorandum
regarding, ‘‘Antidumping Duty
Investigation of Wire Decking from the
People’s Republic of China: Delivery of
Quantity and Value Questionnaire and
Separate Rate Application to Exporters/
Producers,’’ dated September 2, 2009
(‘‘Q&V Delivery Memo’’). We issued our
request for Q&V information to 83
potential Chinese exporters of the
subject merchandise, in addition to
posting the Q&V questionnaire on the
Department’s website. See Q&V Delivery
Memo. While information on the record
of this investigation indicates that there
are numerous producers/exporters of
wire decking in the PRC, we received
only nine timely filed Q&V responses.
Although all exporters were given an
opportunity to provide Q&V
information, not all exporters provided
a response to the Department’s Q&V
letter. Therefore, the Department has
preliminarily determined that there
were exporters/producers of the subject
merchandise during the POI from the
PRC that did not respond to the
Department’s request for information.
We have treated these PRC producers/
exporters as part of the PRC–wide entity
because they did not apply for a
separate rate. See, e.g., Kitchen Racks
Prelim, unchanged in Kitchen Racks
Final.
Section 776(a)(2) of the Act provides
that, 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
subsections 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.
Information on the record of this
investigation indicates that the PRC–
wide entity was non–responsive.
Certain companies did not respond to
our questionnaire requesting Q&V
information. As a result, pursuant to
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section 776(a)(2)(A) of the Act, we find
that the use of facts available (‘‘FA’’) is
appropriate to determine the PRC–wide
rate. See Preliminary Determination of
Sales at Less Than Fair Value,
Affirmative Preliminary Determination
of Critical Circumstances and
Postponement of Final Determination:
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam, 68 FR
4986 (January 31, 2003), unchanged in
Final Determination of Sales at Less
Than Fair Value and Affirmative
Critical Circumstances: Certain Frozen
Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 37116 (June 23,
2003).
Section 776(b) of the Act provides
that, in selecting from among the facts
otherwise available, the Department
may employ an adverse inference if an
interested party fails to cooperate by not
acting to the best of its ability to comply
with requests for information. See
Statement of Administrative Action,
accompanying the Uruguay Round
Agreements Act (‘‘URAA’’), H.R. Rep.
No. 103–316, 870 (1994) (‘‘SAA’’); see
also Notice of Final Determination of
Sales at Less Than Fair Value: Certain
Cold–Rolled Flat–Rolled Carbon–
Quality Steel Products from the Russian
Federation, 65 FR 5510, 5518 (February
4, 2000). We find that, because the PRC–
wide entity did not respond to our
requests for information, it has failed to
cooperate to the best of its ability.
Therefore, the Department preliminarily
finds that, in selecting from among the
facts available, an adverse inference is
appropriate.
When employing an adverse
inference, section 776 indicates that the
Department may rely upon information
derived from the petition, the final
determination from the LTFV
investigation, a previous administrative
review, or any other information placed
on the record. In selecting a rate for
adverse facts available (‘‘AFA’’), the
Department selects a rate that is
sufficiently adverse to ensure that the
uncooperative party does not obtain a
more favorable result by failing to
cooperate than if it had fully
cooperated. It is the Department’s
practice to select, as AFA, the higher of
the (a) highest margin alleged in the
petition, or (b) the highest calculated
rate of any respondent in the
investigation. See Final Determination
of Sales at Less Than Fair Value:
Certain Cold–Rolled Carbon Quality
Steel Products from the People’s
Republic of China, 65 FR 34660 (May
31, 2000), and accompanying Issues and
Decision Memorandum, at ‘‘Facts
Available.’’ As AFA, we have
preliminarily assigned to the PRC–wide
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Sfmt 4703
entity a rate of 289.00 percent, the
highest calculated rate from the petition.
The Department preliminarily
determines that this information is the
most appropriate from the available
sources to effectuate the purposes of
AFA. The Department’s reliance on the
petition rate to determine an AFA rate
is subject to the requirement to
corroborate secondary information,
discussed in the Corroboration section
below.
Corroboration
Section 776(c) of the Act provides
that, when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation as FA, it must, to the
extent practicable, corroborate that
information from independent sources
reasonably at its disposal. 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.’’20
The SAA explains that to ‘‘corroborate’’
means simply that the Department will
satisfy itself that the secondary
information to be used has probative
value. Id. The SAA also explains that
independent sources used to corroborate
may include, for example, published
price lists, official import statistics and
CBP data, and information obtained
from interested parties during the
particular investigation. Id. To
corroborate secondary information, the
Department will, to the extent
practicable, examine the reliability and
relevance of the information used.21
The AFA rate that the Department
used is derived from information in the
Petition and from the Antidumping
Duty Investigation Initiation Checklist:
Wire Decking from the PRC (‘‘Initiation
Checklist’’).22 Petitioners’ methodology
for calculating the EP and NV in the
petition, and modified by the
20 See
SAA at 870.
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 Initiation Checklist at Exhibit V.
21 See
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Department, is discussed in the
Initiation Checklist.23
Based on our examination of
information on the record, including
examination of the petition export
prices and normal values, we find that,
for purposes of this investigation, there
is not a sufficient basis to consider that
certain petition margins have probative
value. However, there is a sufficient
basis to determine that the petition
margin selected does have probative
value. In this case, we have selected a
margin that is not so much greater than
the highest CONNUM–specific margin
calculated for one of the mandatory
respondents in this proceeding that it
can be considered to not have probative
value. This method of selecting an AFA
dumping margin is consistent with the
recent final determination involving
kitchen appliance shelving and racks
from the PRC and prestressed concrete
steel wire strand from the PRC. See July
20, 2009, Memorandum to the File,
regarding Corroboration of the PRC–
Wide Entity Rate and the Wireking Total
AFA Rate for the Final Determination in
the Antidumping Duty Investigation of
Certain Kitchen Appliance Shelving and
Racks from the People’s Republic of
China, see also, Prestressed Concrete
Steel Wire Strand From the People’s
Republic of China: Preliminary
Determination of Sales at Less Than
Fair Value, 74 FR 68232 (December 23,
2009).
The Department’s practice, when
selecting an AFA rate from among the
possible sources of information, has
been to ensure that the margin is
sufficiently adverse ‘‘as to effectuate the
statutory purposes of the adverse facts
available rule to induce respondents to
provide the Department with complete
and accurate information in a timely
manner.’’ See Notice of Final
Determination of Sales at Less Than
Fair Value and Final Negative Critical
Circumstances: Carbon and Certain
Alloy Steel Wire Rod from Brazil, 67 FR
55792, 55796 (Aug. 30, 2002); see also
Notice of Final Determination of Sales
at Less Than Fair Value: Static Random
Access Memory Semiconductors From
Taiwan, 63 FR 8909, 8932 (Feb. 23,
1998). As guided by the SAA, the
information used as AFA should ensure
an uncooperative party does not benefit
more by failing to cooperate than if it
had cooperated fully. See SAA at 870.
We conclude that using DHMP’s highest
transaction–specific margin as a limited
reference point, the highest petition
margin that can be corroborated within
the meaning of the statute is 289.00
percent, which is sufficiently adverse so
23 See
Initiation Checklist at Exhibit V.
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15:14 Jan 11, 2010
Jkt 220001
as to induce cooperation such that the
uncooperative companies do not benefit
from their failure to cooperate. See
Memorandum to the File, regarding
Corroboration of the PRC–Wide Entity
Rate and for the Preliminary
Determination in the Antidumping Duty
Investigation of Wire Decking from the
People’s Republic of China, dated
concurrently with this notice.
Accordingly, we find that the rate of
289.00 percent is corroborated within
the meaning of section 776(c) of the Act.
Consequently, we are applying 289.00
percent as the single antidumping rate
to the PRC–wide entity. The PRC–wide
rate applies to all entries of the
merchandise under investigation except
for entries from Eastfound Metal,
Eastfound Material, DHMP, and the
separate rate applicants receiving a
separate rate (i.e., Riqian, Globsea, and
Ningbo Xinguang).
Margin for the Separate Rate
Companies
As discussed above, the Department
received timely and complete separate
rate applications from Riqian, Globsea,
and Ningbo Xinguang, who are all
exporters of wire decking from the PRC
during the POI and who were not
selected as mandatory respondents in
this investigation. Through the evidence
in their applications, these companies
have demonstrated their eligibility for a
separate rate, as discussed above.
Consistent with the Department’s
practice, as the separate rate, we have
established a margin for the Riqian,
Globsea, and Ningbo Xinguang based on
the average of the rates we calculated for
the mandatory respondents, Eastfound
and DHMP, excluding any rates that
were zero, de minimis, or based on total
adverse facts available.24
Date of Sale
19 CFR 351.401(i) states that, ‘‘in
identifying the date of sale of the
merchandise under consideration or
foreign like product, the Secretary
normally will use the date of invoice, as
recorded in the exporter or producer’s
records kept in the normal course of
business.’’ In Allied Tube, the Court of
International Trade (‘‘CIT’’) noted that a
‘‘party seeking to establish a date of sale
other than invoice date bears the burden
of producing sufficient evidence to
24 See, e.g., Preliminary Determination of Sales at
Less Than Fair Value and Partial Affirmative
Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People’s Republic of
China, 71 FR 77373, 77377 (December 26, 2006),
unchanged in Final Determination of Sales at Less
Than Fair Value and Partial Affirmative
Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People’s Republic of
China, 72 FR 19690 (April 19, 2007).
PO 00000
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Fmt 4703
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1603
satisf{y}’ the Department that a different
date better reflects the date on which
the exporter or producer establishes the
material terms of sale.’’’ Allied Tube &
Conduit Corp. v. United States 132 F.
Supp. 2d at 1090 (CIT 2001) (quoting 19
CFR 351.401(i)) (‘‘Allied Tube’’).
Additionally, the Secretary may use a
date other than the date of invoice if the
Secretary is satisfied that a different
date better reflects the date on which
the exporter or producer establishes the
material terms of sale. See 19 CFR
351.401(i); see also Allied Tube, 132 F.
Supp. 2d 1087, 1090–1092. The date of
sale is generally the date on which the
parties agree upon all substantive terms
of the sale. This normally includes the
price, quantity, delivery terms and
payment terms. See Carbon and Alloy
Steel Wire Rod from Trinidad and
Tobago: Final Results of Antidumping
Duty Administrative Review, 72 FR
62824 (November 7, 2007), and
accompanying Issue and Decision
Memorandum at Comment 1; Notice of
Final Determination of Sales at Less
Than Fair Value: Certain Cold–Rolled
Flat–Rolled Carbon Quality Steel
Products from Turkey, 65 FR 15123
(March 21, 2000), and accompanying
Issues and Decision Memorandum at
Comment 1.
Eastfound
For the preliminary determination, we
used the shipment date as the date of
sale rather than Eastfound’s reported
sale date (booking date), because based
on the record evidence to date, we
preliminarily find that shipment date
best reflects the date on which the
essential terms of sale are fixed and
final. In our analysis of Eastfound’s
information, we determined that the
sale date reported in Eastfound’s sales
database only represents the date that
Eastfound chose to record the sale of
merchandise under consideration in its
books and records, not the date the
material terms of the sale were
established with its U.S. customer. We
asked Eastfound to provide sales based
on commercial invoice date or explain
why Eastfound’s booking date better
reflects the date on which the exporter
established the material terms of sale
(e.g., price, quantity, etc.). Instead,
Eastfound explained how it uses its
commercial invoice numbering and
dating system to assign invoice numbers
and dates and how it recorded its sales
in its books and records. The
information that Eastfound provided did
not adequately demonstrate when the
material terms of its sale were
established. Because Eastfound has not
adequately demonstrated that the
material terms of sale for Eastfound’s
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sales were established on its reported
sale date (i.e., booking date) or any other
date, we preliminarily determine
Eastfound’s shipment date best reflects
the date on which the essential terms
are fixed and final. However,
subsequent to the preliminary
determination we will request
additional information with respect to
this issue.
DHMP
For the preliminary determination, we
used DHMP’s shipment date as the date
of sale, because, based on record
evidence to date, we preliminarily find
that it best represents the date on which
the essential terms of sale are fixed and
final. In DHMP’s October 16, 2009,
questionnaire response, DHMP
designated a date of sale other than the
invoice date but did not produce
sufficient evidence to establish that ‘‘a
different date better reflects the date on
which the exporter or producer
establishes the material terms of sale.’’
On November 16, 2009, the Department
issued a supplemental questionnaire
and explained that the Department will
normally use the date of invoice, unless
DHMP demonstrates that a different
date better reflects the date on which
the exporter or producer establishes the
material terms of sale. In DHMP’s
December 1, 2009, Supplemental
Questionnaire Response, DHMP
submitted an alternate database for its
U.S. sales during the POI based on the
shipment date. Additionally, in DHMP’s
December 23, 2009 submission, DHMP
stated that the material terms of sale are
set at the time of shipment. Thus, for the
preliminary determination, the
Department has used the shipment date
as the date of sale. However, subsequent
to the preliminary determination we
will request additional information with
respect to this issue.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Fair Value Comparisons
To determine whether sales of wire
decking to the United States by the
respondents were made at LTFV, we
compared EP to NV, as described in the
‘‘Export Price’’ and ‘‘Normal Value’’
sections of this notice.
Export Price
In accordance with section 772(a) of
the Act, EP is the price at which the
merchandise subject to this
investigation is first sold (or agreed to be
sold) before the date of importation by
the producer or exporter of the
merchandise subject to this
investigation outside of the United
States to an unaffiliated purchaser in the
United States or to an unaffiliated
purchaser for exportation to the United
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15:14 Jan 11, 2010
Jkt 220001
States, as adjusted under section 772(c)
of the Act. In accordance with section
772(a) of the Act, we used EP for
DHMP’s and Eastfound’s U.S. sales
because the merchandise subject to this
investigation was sold directly to the
unaffiliated customers in the United
States prior to importation and because
constructed export price (‘‘CEP’’) was
not otherwise indicated. See Affiliation
Section above.
We calculated EP based on the packed
prices to unaffiliated purchasers in, or
for exportation to, the United States. We
made deductions, as appropriate, for
any movement expenses (e.g., foreign
inland freight from the plant to the port
of exportation, domestic brokerage,
international freight to the port of
importation, etc.) in accordance with
section 772(c)(2)(A) of the Act. Where
foreign inland freight or foreign
brokerage and handling fees were
provided by PRC service providers or
paid for in renminbi, we based those
charges on surrogate value rates from
India. See ‘‘Factor Valuation’’ section
below for further discussion of surrogate
value rates.
In determining the most appropriate
surrogate values to use in a given case,
the Department’s stated practice is to
use period–wide price averages, prices
specific to the input in question, prices
that are net of taxes and import duties,
prices that are contemporaneous with
the POI, and publicly available data.25
We valued brokerage and handling
using a simple average of the brokerage
and handling costs that were reported in
public submissions that were filed in
three antidumping duty cases.
Specifically, we averaged the public
brokerage and handling expenses
reported by Navneet Publications (India)
Ltd. in the 2007–2008 administrative
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 Himalya International Ltd. in the
2005–2006 administrative review of
certain preserved mushrooms from
India. Because these values were not
concurrent with the POI of this
investigation, we adjusted these rates for
inflation using the Wholesale Price
Indices (‘‘WPI’’) for India as published in
the International Monetary Fund’s
(‘‘IMF’s’’) International Financial
Statistics, available at https://
ifs.apdi.net/imf, and then calculated a
simple average of the three companies’
brokerage expense data.26 See Surrogate
Value Memo.
To value marine insurance, the
Department used data from RGJ
Consultants (https://
www.rjgconsultants.com/). This source
provides information regarding the per–
value rates of marine insurance of
imports and exports to/from various
countries. We valued international
freight shipping expenses using
contemporaneous rates reported by
Maersk Line Shipping. Where
applicable, the Department used the
international freight rates reported for
each corresponding origin and
destination port for each month of the
POI.
25 See, e.g., Certain Cased Pencils from the
People’s Republic of China; Final Results and
Partial Rescission of Antidumping Duty
Administrative Review, 71 FR 38366 (July 6, 2006),
and accompanying Issues and Decision
Memorandum at Comment 1.
26 See Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, from the People’s Republic
of China: Preliminary Results of the 2007 2008
Administrative Review of the Antidumping Duty
Order, 74 FR 32539 (July 8, 2009), (unchanged in
final results) (‘‘07-08 TRBs’’).
PO 00000
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Sfmt 4703
Normal Value
Section 773(c)(1) of the Act provides
that the Department shall determine the
NV using an FOP 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 NMEs renders price comparisons and
the calculation of production costs
invalid under the Department’s normal
methodologies. See, e.g., Kitchen Racks
Prelim, 71 FR at 19703 (unchanged in
Kitchen Racks Final).
Factor Valuations
In accordance with section 773(c) of
the Act, we calculated NV based on FOP
data reported by respondents during the
POI. To calculate NV, we multiplied the
reported per–unit factor–consumption
rates by publicly available surrogate
values (except as discussed below). In
selecting the surrogate values, we
considered the quality, specificity, and
contemporaneity of the data. See, e.g.,
Fresh Garlic From the People’s Republic
of China: Final Results of Antidumping
Duty New Shipper Review, 67 FR 72139
(December 4, 2002), and accompanying
Issues and Decision Memorandum at
Comment 6; and Final Results of First
New Shipper Review and First
Antidumping Duty Administrative
Review: Certain Preserved Mushrooms
From the People’s Republic of China, 66
FR 31204 (June 11, 2001), and
accompanying Issues and Decision
Memorandum at Comment 5. As
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appropriate, we adjusted input prices by
including freight costs to make them
delivered prices. Specifically, we 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 where appropriate. This
adjustment is in accordance with the
Court of Appeals for the Federal
Circuit’s decision in Sigma Corp. v.
United States, 117 F.3d 1401, 1407–08
(Fed. Cir. 1997). A detailed description
of all surrogate values used for DHMP
and Eastfound can be found in the
Surrogate Value Memorandum.
For the preliminary determination, in
accordance with the Department’s
practice, we used data from the Indian
Import Statistics and other publicly
available Indian sources in order to
calculate surrogate values for DHMP’s
and Eastfound’s FOPs (direct materials,
energy, and packing materials) and
certain movement expenses. In selecting
the best available information for
valuing FOPs in accordance with
section 773(c)(1) of the Act, the
Department’s practice is to select, to the
extent practicable, surrogate values
which are non–export average values,
most contemporaneous with the POI,
product–specific, and tax–exclusive.
See, e.g., Notice of Preliminary
Determination of Sales at Less Than
Fair Value, Negative Preliminary
Determination of Critical Circumstances
and Postponement of Final
Determination: Certain Frozen and
Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR
42672, 42682 (July 16, 2004), unchanged
in Final Determination of Sales at Less
Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp from the
Socialist Republic of Vietnam, 69 FR
71005 (December 8, 2004). The record
shows that data in the Indian Import
Statistics, as well as those from the
other Indian sources, are
contemporaneous with the POI,
product–specific, and tax–exclusive.
See Surrogate Value Memorandum. In
those instances where we could not
obtain publicly available information
contemporaneous to the POI with which
to value factors, we adjusted the
surrogate values using, where
appropriate, the Indian WPI as
published in the IMF’s International
Financial Statistics. See, e.g., Kitchen
Racks, 74 FR at 9600.
Furthermore, with regard to the
Indian import–based surrogate values,
we have disregarded import prices that
we have reason to believe or suspect
may be subsidized. We have reason to
believe or suspect that prices of inputs
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15:14 Jan 11, 2010
Jkt 220001
from Indonesia, South Korea, and
Thailand may have been subsidized. We
have found in other proceedings that
these countries maintain broadly
available, non–industry-specific export
subsidies and, therefore, it is reasonable
to infer that all exports to all markets
from these countries may be subsidized.
See Notice of Final Determination of
Sales at Less Than Fair Value and
Negative Final Determination of Critical
Circumstances: Certain Color Television
Receivers From the People’s Republic of
China, 69 FR 20594 (April 16, 2004) and
accompanying Issues and Decision
Memorandum at Comment 7.
Further, guided by the legislative
history, it is the Department’s practice
not 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 (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,
we have not used prices from these
countries in calculating the Indian
import–based surrogate values.
Additionally, we disregarded prices
from NME countries. Finally, imports
that were labeled as originating from an
‘‘unspecified’’ country were excluded
from the average value, because the
Department could not be certain that
they were not from either an NME
country or a country with general export
subsidies. See id.
For direct, indirect, and packing
labor, consistent with 19 CFR
351.408(c)(3), we 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
December 2009. See 2009 Calculation of
Expected Non–Market Economy Wages,
74 FR 65092 (December 9, 2009), and
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
1605
https://ia.ita.doc.gov/wages/.
The source of these wage–rate data on
the Import Administration’s web site is
the 2006 and 2007 data in Chapter 5B
of the International Labour
Organization’s Yearbook of Labour
Statistics. Because this regression–based
wage rate does not separate the labor
rates into different skill levels or types
of labor, we have applied the same wage
rate to all skill levels and types of labor
reported by the respondents.
We 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. This value is contemporaneous
with the POI.
We valued electricity using price data
for small, medium, and large industries,
as published by the 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.
Because water is essential to the
production process of the merchandise
under consideration, the Department
considers water to be a direct material
input, not 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 23, 2003), and accompanying
Issues and Decision Memorandum at
Comment 11. To value water, we used
the revised Maharashtra Industrial
Development Corporation water rates
available at https://www.midcindia.com/
water–supply. See Surrogate Value
Memorandum.
To value low carbon steel wire rod,
we used price data from the Indian Join
Plant Committee (‘‘JPC’’), which is a joint
industry/government board that
monitors Indian steel prices. These data
are fully contemporaneous with the POI,
and are specific to the reported inputs
of the respondents. See Eastfound’s
Surrogate Value Rebuttal Comments,
dated November 18, 2009. Further, these
data are publicly available, represent a
broad market average, and we are able
to calculate them on a tax–exclusive
basis. See 19 CFR 351.408(c)(1). For a
detailed discussion of all surrogate
values used for this preliminary
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determination, see Surrogate Value
Memo.
To value factory overhead, selling,
general, and administrative expenses,
and profit, we used audited financial
statements of Bansidhar Granites Private
Limited (‘‘Bansidhar’’), Bedmutha Wire
Com. Ltd. (‘‘Bedmutha’’), and Mekins
Agro Products (‘‘Mekins’’), each covering
the fiscal period April 1, 2007, through
March 31, 2008. Each of the three
surrogate producers makes a range of
products including: wire decking,
drawn and welded wire products,
fasteners or nuts and bolts, or some
combination thereof. These are all
comparable merchandise to that
produced by the respondents.27 The
Department may consider other publicly
available financial statements for the
final determination, as appropriate.
Use of Facts Available
Section 776(a)(1) of the Act mandates
that the Department use FA if necessary
information is not available on the
record of an antidumping proceeding.
Eastfound
In our review of Eastfound’s reported
information, we found that Eastfound
did not report FOPs for certain control
numbers (‘‘CONNUMs’’) in its sales
database. In our original questionnaire,
we instructed Eastfound to ensure that
its FOP database contains a separate
record for each unique CONNUM
contained in its U.S. sales file.
Additionally, in a supplemental
questionnaire, we pointed out to
Eastfound that the FOP database did not
contain FOPs for certain sales
CONNUMs. We requested that
Eastfound report consumption factors
for all of these CONNUMs. In its
December 7, 2009, response, Eastfound
stated that it had no production for
these CONNUMs during the POI and it
provided alternate CONNUMs for the
Department to use in its margin program
for the missing FOPs. However, in its
supplemental questionnaire response,
Eastfound did not adequately explain
why the Department should use the
FOPs of these alternate CONNUMs in
lieu of obtaining FOPs for the actual
CONNUMs. Eastfound stated that the
missing CONNUMs represent a small
percentage of its reported sales and that
its alternate CONNUMs are ‘‘very
similar’’ to the CONNUMs that did not
have production during the POI. On
December 23, 2009, Eastfound
submitted an update to its alternate
CONNUM recommendation and also
provided an explanation as to why the
FOPs for these alternate CONNUMs
should be used in lieu of the actual
CONNUMs.
Pursuant to section 776(a)(2)(B) of the
Act, Eastfound failed to provide
information relevant to the
Department’s analysis with respect to
the above–mentioned missing FOPs for
certain CONNUMs. Thus, consistent
with section 782(d) of the Act, the
Department has determined it necessary
to apply facts otherwise available for
these CONNUMs. For the preliminary
determination, as FA, we will use the
FOPs of the CONNUMs recommended
by Eastfound in its December 23, 2009,
submission because they represent a
very small percentage of Eastfound’s
U.S. sales, and based on a review of the
product characteristics we find that
Eastfound’s suggested alternate
CONNUMs represent very similar
products to the CONNUMs with no
FOPs.
In our review of Eastfound’s FOP
database, we found that for certain
CONNUMs the consumption of hot–
rolled steel strip in coils and wire rods
(collectively ‘‘steel weight’’), which is
the amount of steel needed to produce
Eastfound’s wire decking, is less than
the reported ‘‘standard weight’’ of the
finished product. See Eastfound’s
Preliminary Analysis Memorandum.
Because we did not provide Eastfound
an opportunity to remedy the above
weight discrepancies, we intend to issue
a supplemental questionnaire after this
preliminary determination. However,
for the preliminary determination, for
those CONNUMs where the steel weight
in Eastfound’s FOP database is less than
the standard weight reported in its sales
database, we applied partial FA.
Pursuant to section 776(b) of the Act, as
FA, we applied the weighted average
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Exporter
Globsea Co., Ltd ..........................................................................
Ningbo Xinguang Rack Co., Ltd. .................................................
Dandong Riqian Logistics Equipment Co. Ltd. ...........................
Surrogate Value Memorandum.
VerDate Nov<24>2008
15:14 Jan 11, 2010
Jkt 220001
Currency Conversion
We 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.
Verification
As provided in section 782(i)(1) of the
Act, we intend to verify the information
from DHMP and Eastfound upon which
we will rely in making our final
determination.
Combination Rates
In the Initiation Notice, the
Department stated that it would
calculate combination rates for certain
respondents that are eligible for a
separate rate in this investigation.28 This
practice is described in Policy Bulletin
05.1.
Preliminary Determination
The weighted–average dumping
margin percentages are as follows:
Producer
Dalian Huameilong Metal Products Co., Ltd. ..............................
Dalian Eastfound Metal Products Co., Ltd. / Dalian Eastfound
Material Handling Products Co. Ltd .........................................
27 See
margin calculated for Eastfound to these
transactions. See Eastfound’s Analysis
Memorandum.
The Department instructed Eastfound
to provide an FOP database for the
processing performed for Eastfound
Metal and/or Eastfound Material by
their galvanizing tollers during the POI.
Eastfound stated that its unaffiliated
galvanizing tollers refused to provide
the requested information because the
information is proprietary. Eastfound
recommends that for the preliminary
determination, the Department use the
galvanizing costs used in the Petition,
which were also used in Certain Steel
Threaded Rod from the People’s
Republic of China: Preliminary
Determination of Sales at Less Than
Fair Value, 73 FR 58931 (October 8,
2008). Petitioners recommend that we
use an average of the galvanizing
surrogate values from the Petition. For
the preliminary determination, we are
applying the average of both surrogate
values from the Petition as a surrogate
cost to the galvanizing performed by
Eastfound’s unaffiliated tollers.
28 See
PO 00000
Percent Margin
Dalian Huameilong Metal Products Co., Ltd.
50.95%
Dalian Eastfound Metal Products Co., Ltd., or Dalian
Eastfound Material Handling Products Co. Ltd.
Dalian Yutiein Storage Manufacturing Co. Ltd., or Dalian
Xingbo Metal Products Co. Ltd.
Ningbo Xinguang Rack Co., Ltd.
Dandong Riqian Logistics Equipment Co. Ltd.
42.61%
Initiation Notice, 74 FR at 31695.
Frm 00024
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12JAN1
46.78%
46.78%
46.78%
1607
Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Notices
Exporter
Producer
Percent Margin
PRC–Wide Entity* ........................................................................
............................................................................................
289.00%
* This rate also applies to Brynick Enterprises Limited, Shanghai Hesheng Hardware Products Co., and Dalian Xingbo Metal Products Co. Ltd.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Disclosure
We will disclose the calculations
performed to parties in this proceeding
within five days of the date of
publication of this notice in accordance
with 19 CFR 351.224(b).
Suspension of Liquidation
In accordance with section 733(d) of
the Act, we will instruct CBP to suspend
liquidation of all entries of merchandise
subject to this investigation, entered, or
withdrawn from warehouse, for
consumption on or after the date of
publication of this notice in the Federal
Register.
The Department has determined in
Wire Decking from the People’s
Republic of China: Preliminary
Affirmative Countervailing Duty
Determination and Alignment of Final
Countervailing Duty Determination with
Final Antidumping Duty Determination,
74 FR 57629 (November 9, 2009) (‘‘CVD
Wire Decking Prelim’’), that the product
under investigation, exported and
produced by Eastfound, benefitted from
an export subsidy. Normally, where the
product under investigation is also
subject to a concurrent countervailing
duty investigation, we instruct CBP to
require an antidumping cash deposit or
posting of a bond equal to the weighted–
average amount by which the NV
exceeds the EP, as indicated above,
minus the amount determined to
constitute an export subsidy. See, e.g.,
Notice of Final Determination of Sales
at Less Than Fair Value: Carbazole
Violet Pigment 23 From India, 69 FR
67306, 67307 (November 17, 2007).
Accordingly, the following cash
deposit requirements will be effective
upon publication of the preliminary
determination. For merchandise under
consideration entered, or withdrawn
from warehouse, for consumption on or
after the publication date of this
preliminary determination in the
Federal Register that is exported and
produced by Eastfound, we will instruct
CBP to require an antidumping cash
deposit or the posting of a bond for each
entry equal to the weighted–average
amount by which the NV exceeds U.S.
price, as indicated above, adjusted for
the export subsidy rate determined in
CVD Wire Decking Prelim.
For merchandise under consideration
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of this preliminary
VerDate Nov<24>2008
15:14 Jan 11, 2010
Jkt 220001
determination in the Federal Register
that is exported and produced by
DHMP, we will instruct CBP to require
an antidumping cash deposit or the
posting of a bond for each entry equal
to the weighted–average amount by
which the NV exceeds U.S. price, as
indicated above. For the non–
individually examined separate rate
recipients in this investigation, we will
instruct CBP to require an antidumping
cash deposit or the posting of a bond for
each entry equal to the weighted–
average amount by which the NV
exceeds U.S. price, as indicated above.29
For all other entries of wire decking
from the people’s republic of china, the
following cash deposit/bonding
instructions apply: (1) For all PRC
exporters of wire decking which have
not received their own rate, the cash–
deposit or bonding rate will be the PRC–
wide rate; (2) for all non–PRC exporters
of wire decking from the people’s
republic of china which have not
received their own rate, the cash–
deposit or bonding rate will be the rate
applicable to the exporter/producer
combinations that supplied that non–
PRC exporter. This suspension of
liquidation will remain in effect until
further notice.
International Trade Commission
Notification
In accordance with section 733(f) of
the Act, we have notified the ITC of our
preliminary affirmative determination of
sales at LTFV. Section 735(b)(2) of the
Act requires the ITC to make its final
determination as to whether the
domestic industry in the United States
is materially injured, or threatened with
material injury, by reason of imports of
wire decking, or sales (or the likelihood
of sales) for importation, of the
merchandise under consideration
29 Normally, where the non-individually
examined entities receiving a separate rate in an AD
investigation are found to have benefitted from
export subsidies in a concurrent CVD investigation
on the same product (either through individual
examination or through the ‘‘All Others’’ rate), the
Department will instruct CBP to collect a cash
deposit or the posting of a bond equal the amount
of the AD margin adjusted for the amount of the
export subsidy. In this case, none of the nonindividually examined entities receiving a separate
rate in the AD investigation were individually
examined in the companion CVD investigation.
Further, the export subsidy found for ‘‘All Others’’
in CVD Wire Decking Prelim is so small (0.005
percent) as to have no impact on the AD margin.
Accordingly, we will not adjust the AD margins for
these entities in our instructions to CBP.
PO 00000
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Fmt 4703
Sfmt 4703
within 45 days of our final
determination.
Public Comment
Case briefs or other written comments
may be submitted to the Assistant
Secretary for Import Administration no
later than seven days after the date on
which the final verification report is
issued in this proceeding and rebuttal
briefs, limited to issues raised in case
briefs, may be submitted no later than
five days after the deadline date for case
briefs. See 19 CFR 351.309. A table of
contents, list of authorities used and an
executive summary of issues should
accompany any briefs submitted to the
Department. This summary should be
limited to five pages total, including
footnotes. The Department also requests
that parties provide an electronic copy
of its case and rebuttal brief submissions
in either a ‘‘Microsoft Word’’ or a ‘‘pdf’’
format.
In accordance with section 774 of the
Act, we will hold a public hearing, if
requested, to afford interested parties an
opportunity to comment on arguments
raised in case or rebuttal briefs.
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, U.S. Department
of Commerce, Room 1870, within 30
days after the date of publication of this
notice. See 19 CFR 351.310(c). Requests
should contain the party’s name,
address, and telephone number, the
number of participants, and a list of the
issues to be discussed. If a request for
a hearing is made, we intend to hold the
hearing three days after the deadline of
submission of rebuttal briefs at the U.S.
Department of Commerce, 14th Street
and Constitution Ave., NW,
Washington, DC 20230, at a time and
location to be determined. See 19 CFR
351.310. Parties should confirm by
telephone the date, time, and location of
the hearing two days before the
scheduled date.
We will make our final determination
no later than 135 days after the date of
publication of this preliminary
determination, pursuant to section
735(a)(2) of the Act.
This determination is issued and
published in accordance with sections
733(f) and 777(i)(1) of the Act.
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Federal Register / Vol. 75, No. 7 / Tuesday, January 12, 2010 / Notices
Dated: January 4, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
Dated: January 5, 2010.
Todd A. Stevenson,
Secretary.
[FR Doc. 2010–372 Filed 1–11–10; 8:45 am]
BILLING CODE 6355–01–M
[FR Doc. 2010–305 Filed 1–11–10; 8:45 am]
BILLING CODE 3510–DS–S
CORPORATION FOR NATIONAL AND
COMMUNITY SERVICE
COMMODITY FUTURES TRADING
COMMISSION
Proposed Information Collection;
Comment Request
Sunshine Act Meetings
The following notice of meeting is
published pursuant to the provisions of
the Government in the Sunshine Act,
Public Law 94–409, 5 U.S.C. 552b.
AGENCY HOLDING THE MEETING:
Commodity Futures Trading
Commission.
TIME AND DATE: 1 p.m., January 14, 2010.
PLACE: Three Lafayette Center, 1155 21st
St., NW., Washington, DC, Lobby Level
Hearing Room (Room 1000).
STATUS: Open.
MATTERS TO BE CONSIDERED: Issuance of
a proposed rule on energy position
limits and hedge exemptions on
regulated futures exchanges, derivatives
transaction execution facilities and
electronic trading facilities.
CONTACT PERSON FOR MORE INFORMATION:
David A. Stawick, Secretary of the
Commission, 202–418–5071.
David A. Stawick,
Secretary of the Commission.
[FR Doc. 2010–450 Filed 1–8–10; 4:15 pm]
BILLING CODE 6351–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
Sunshine Act Meeting Notice
TIME AND DATE: Wednesday, January 13,
2010, 2 p.m.–4 p.m.
PLACE: Hearing Room 420, Bethesda
Towers, 4330 East West Highway,
Bethesda, Maryland.
STATUS: Closed to the Public.
Matter To Be Considered
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Compliance Weekly Report—
Commission Briefing
The staff will brief the Commission on
various compliance matters.
For a recorded message containing the
latest agenda information, call (301)
504–7948.
CONTACT PERSON FOR MORE INFORMATION:
Todd A. Stevenson, Office of the
Secretary, U.S. Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, MD 20814 (301)
504–7923.
VerDate Nov<24>2008
15:14 Jan 11, 2010
Jkt 220001
AGENCY: Corporation for National and
Community Service.
ACTION: Notice.
SUMMARY: The Corporation for National
and Community Service (hereinafter the
‘‘Corporation’’), as part of its continuing
effort to reduce paperwork and
respondent burden, conducts a preclearance consultation program to
provide the general public and Federal
agencies with an opportunity to
comment on proposed and/or
continuing collections of information in
accordance with the Paperwork
Reduction Act of 1995 (PRA95) (44
U.S.C. 3506(c)(2)(A)). This program
helps to ensure that requested data can
be provided in the desired format,
reporting burden (time and financial
resources) is minimized, collection
instruments are clearly understood, and
the impact of collection requirement on
respondents can be properly assessed.
Currently, the Corporation is
soliciting comments concerning its
proposed Stakeholder Assessment of
Senior Corps RSVP grantees. This
information collection is a requirement
of the Serve America Act. The
information collection will be used by
the community partners of current
Senior Corps grantees for the national
RSVP re-competition beginning in 2013.
Completion of the Stakeholder
Assessment is required in order for
RSVP grantees to receive precompetition training and technical
assistance.
DATES: Written comments must be
submitted to the individual and office
listed in the ADDRESSES section by
March 15, 2010.
ADDRESSES: You may submit comments,
identified by the title of the information
collection activity, by any of the
following methods:
(1) By mail sent to: Corporation for
National and Community Service,
Senior Corps; Attention Katharine Delo
Gregg, Program Officer, Room 9408A,
1201 New York Avenue, NW.,
Washington, DC 20525.
(2) By hand delivery or by courier to
the Corporation’s mailroom at Room
PO 00000
Frm 00026
Fmt 4703
Sfmt 4703
6010 at the mail address given in
paragraph (1) above, between 9 a.m. and
4 p.m. Monday through Friday, except
Federal holidays.
(3) By fax to: (202) 606–3475,
Attention Katharine Delo Gregg,
Program Officer.
(4) Electronically through the
Corporation’s e-mail address system:
kgregg@cns.gov.
FOR FURTHER INFORMATION CONTACT:
Katharine Delo Gregg, (202) 606–6965,
or by e-mail at kgregg@cns.gov.
SUPPLEMENTARY INFORMATION:
The Corporation is particularly
interested in comments that:
• Evaluate whether the proposed
collection of information is necessary
for the proper performance of the
functions of the Corporation, including
whether the information will have
practical utility;
• Evaluate the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
• Enhance the quality, utility, and
clarity of the information to be
collected; and
• Minimize the burden of the
collection of information on those who
are expected to respond, including the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology
(e.g., permitting electronic submissions
of responses).
Background
The Serve America Act requires recompetition of RSVP grants beginning
in 2013. In preparation for the recompetition, the legislation requires a
stakeholder assessment. Each grantee
will receive a custom report with
feedback, based on the results of the
assessments. The Stakeholder
Assessment will be completed
electronically using Zoomerang.
Current Action
The information collection is
intended to be completed by the
Community Advisory Boards of current
RSVP grantees. The individual
questions have previously existed in
grant applications, program handbooks
and guidance, however, the format of
the information collection is new.
The information collection will be
used to collect data to enhance technical
assistance for current grantees. The
Corporation will not use the results of
this information collection for
decisionmaking purposes regarding
grant awards.
E:\FR\FM\12JAN1.SGM
12JAN1
]]>Agencies
[Federal Register Volume 75, Number 7 (Tuesday, January 12, 2010)]
[Notices]
[Pages 1597-1608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-372]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
(A-570-949)
Wire Decking from the People's Republic of China: Notice of
Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: January 12, 2010.
SUMMARY: The Department of Commerce (``Department'') preliminarily
determines that wire decking from the People's Republic of China
(``PRC'') is being, or is likely to be, sold in the United States at
less than fair value (``LTFV''), as provided in section 733 of the
Tariff Act of 1930, as amended (``the Act''). The estimated margins of
sales at LTFV are shown in the ``Preliminary Determination'' section of
this notice. Pursuant to requests from interested parties, we are
postponing the final determination and extending the provisional
measures from a four-month period to not more than six months.
Accordingly, we will make our final determination not later than 135
days after publication of the preliminary determination.
FOR FURTHER INFORMATION CONTACT: Frances Veith or Trisha Tran, AD/CVD
Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4295 or (202) 482-4852, respectively.
SUPPLEMENTARY INFORMATION:
Initiation
On June 5, 2009, the Department received an antidumping duty
(``AD'') petition concerning imports of wire decking from the PRC filed
in proper form by AWP Industries, Inc., ITC Manufacturing, Inc., J&L
Wire Cloth, Inc., and Nashville Wire Products Mfg. Co., Inc.,
(collectively, ``Petitioners''). See the Petition for the Imposition of
Antidumping and Countervailing Duties Pursuant to Sections 701 and 731
of the Tariff Act of 1930, as amended (``Petition''), filed on June 5,
2009. On June 22, 2009, Petitioners submitted a letter stating that
another domestic producer of the like product, Wireway Husky
Corporation, had joined the petition.
The Department initiated this investigation on June 25, 2009.\1\ In
the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate-rate status in non-market economy (``NME'') investigations.
The process requires exporters and producers to submit a separate-rate
status application (``SRA'')\2\ and to demonstrate an absence of both
de jure and de facto government control over its export activities. The
SRA for this investigation was posted on the Department's website
https://ia.ita.doc.gov/ia-highlights-and-news.html on July 2, 2009. The
due date for filing an SRA was August 31, 2009.
---------------------------------------------------------------------------
\1\ See Wire Decking from the People's Republic of China:
Initiation of Antidumping Duty Investigation, 74 FR 31691 (July 2,
2009) (``Initiation Notice'').
\2\ See 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/policy/bull05-1.pdf.
---------------------------------------------------------------------------
On July 31, 2009, the International Trade Commission (``ITC'')
determined that there is a reasonable indication that an industry in
the United States is materially injured or threatened with material
injury by reason of imports of wire decking from the PRC.\3\
---------------------------------------------------------------------------
\3\ See Investigation Nos. 701-TA-466 and 731-TA-116
(Preliminary): Wire Decking from China, 74 FR 38229 (July 31, 2009).
---------------------------------------------------------------------------
[[Page 1598]]
Period of Investigation
The period of investigation (``POI'') is October 1, 2008, through
March 31, 2009. This period corresponds to the two most recent fiscal
quarters prior to the month of the filing of the petition, which was
June 2009. See 19 CFR 351.204(b)(1).
Postponement of Preliminary Determination
On October 15, 2009, petitioners made a timely request pursuant to
section 733(c)(1)(A) of the Act and 19 CFR 351.205(b)(2) and (e) for a
50-day postponement of the preliminary determination. On October 27,
2009, the Department published a postponement of the preliminary
antidumping duty determination on wire decking from the PRC.\4\
---------------------------------------------------------------------------
\4\ See Wire Decking from the People's Republic of China:
Postponement of Preliminary Determinations of Antidumping Duty
Investigations, 74 FR 55211 (October 27, 2009).
---------------------------------------------------------------------------
Scope of the Investigation
The scope of the investigation covers welded-wire rack decking,
which is also known as, among other things, ``pallet rack decking,''
``wire rack decking,'' ``wire mesh decking,'' ``bulk storage
shelving,'' or ``welded-wire decking.'' Wire decking consists of wire
mesh that is reinforced with structural supports and designed to be
load bearing. The structural supports include sheet metal support
channels, or other structural supports, that reinforce the wire mesh
and that are welded or otherwise affixed to the wire mesh, regardless
of whether the wire mesh and supports are assembled or unassembled and
whether shipped as a kit or packaged separately. Wire decking is
produced from carbon or alloy steel wire that has been welded into a
mesh pattern. The wire may be galvanized or plated (e.g., chrome, zinc
or nickel coated), coated (e.g., with paint, epoxy, or plastic), or
uncoated (``raw''). The wire may be drawn or rolled and may have a
round, square or other profile. Wire decking is sold in a variety of
wire gauges. The wire diameters used in the decking mesh are 0.105
inches or greater for round wire. For wire other than round wire, the
distance between any two points on a cross-section of the wire is 0.105
inches or greater. Wire decking reinforced with structural supports is
designed generally for industrial and other commercial storage rack
systems.
Wire decking is produced to various profiles, including, but not
limited to, a flat (``flush'') profile, an upward curved back edge
profile (``backstop'') or downward curved edge profile
(``waterfalls''), depending on the rack storage system. The wire
decking may or may not be anchored to the rack storage system. The
scope does not cover the metal rack storage system, comprised of metal
uprights and cross beams, on which the wire decking is ultimately
installed. Also excluded from the scope is wire mesh shelving that is
not reinforced with structural supports and is designed for use without
structural supports.
Wire decking enters the United States through several basket
categories in the Harmonized Tariff Schedule of the United States
(``HTSUS''). U.S. Customs and Border Protection has issued a ruling (NY
F84777) that wire decking is to be classified under HTSUS 9403.90.8040.
Wire decking has also been entered under HTSUS 7217.10, 7217.20,
7326.20, 7326.90, 9403.20.0020 and 9403.20.0030. While HTSUS
subheadings are provided for convenience and Customs purposes, the
written description of the scope of the investigations is dispositive.
Scope Comments
As discussed in the preamble to the regulations, we set aside a
period for interested parties to raise issues regarding product
coverage. See Antidumping Duties; Countervailing Duties; Final Rule, 62
FR 27296, 27323 (May 19, 1997). The Department encouraged all
interested parties to submit such comments within 20 calendar days of
signature of the Initiation Notice. See Initiation Notice, 74 FR at
31692. The Department did not receive scope comments from any
interested party.
Non-Market Economy Country
For purposes of initiation, Petitioners submitted an LTFV analysis
for the PRC as an NME.\5\ The Department's most recent examination of
the PRC's market status determined that NME status should continue for
the PRC.\6\ Additionally, in two recent investigations, the Department
also determined that the PRC is an NME country.\7\ In accordance with
section 771(18)(C)(i) of the Act, the NME status remains in effect
until revoked by the Department. The Department has not revoked the
PRC's status as an NME country, and we have therefore treated the PRC
as an NME in this preliminary determination and applied our NME
methodology.
---------------------------------------------------------------------------
\5\ Initiation Notice, 72 FR at 31693-94.
\6\ See the Department's memorandum entitled, ``Antidumping Duty
Investigation of Certain Lined Paper Products from the People's
Republic of China (``China'') - China's status as a non-market
economy (``NME''),'' dated August 30, 2006. This document is
available online at: https:// ia.ita.doc.gov/download/prc-nmestatus/
prc-lined-paper-memo-08302006.pdf.
\7\ See, e.g., Certain Kitchen Appliance Shelving and Racks From
the People's Republic of China: Preliminary Determination of Sales
at Less Than Fair Value and Postponement of Final Determination, 74
FR 9591 ( March 5, 2009) (``Kitchen Racks Prelim'') unchanged in
Certain Kitchen Appliance Shelving and Racks From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 74 FR 36656 (July 24, 2009) (``Kitchen Racks Final'') and
Certain Tow Behind Lawn Groomers and Certain Parts Thereof from the
People's Republic of China: Preliminary Determination of Sales at
Less Than Fair Value and Postponement of Final Determination, 74 FR
4929 (January 28, 2009) unchanged in Certain Tow Behind Lawn
Groomers and Certain Parts Thereof from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value, 74 FR
29167 (June 19, 2009).
---------------------------------------------------------------------------
Selection of Respondents
In accordance with section 777A(c)(2) of the Act, the Department
selected the two largest exporters of wire decking (i.e., Dalian
Huameilong Metal Products Co., Ltd. (``DHMP'') and Dalian Eastfound
Metal Products Co., Ltd. (``Eastfound Metal'') and its affiliate Dalian
Eastfound Material Handling Products Co., Ltd. (``Eastfound Material'')
(collectively, ``Eastfound'') by volume as the mandatory respondents in
this investigation based on the quantity and value (``Q&V'')
information from exporters/producers that were identified in the
Petition, of which eight firms filed timely Q&V questionnaire
responses.\8\ Of the eight Q&V questionnaire responses, two companies
(i.e. Eastfound Material and Eastfound Metal) filed a consolidated Q&V
questionnaire response.
---------------------------------------------------------------------------
\8\ See the Department's memorandum entitled, ``Antidumping Duty
Investigation of Wire Decking from the People's Republic of China:
Selection of Respondents,'' dated August 19, 2009 (``Respondent
Selection Memo'').
---------------------------------------------------------------------------
The Department issued its antidumping questionnaire to DHMP and
Eastfound on August 31, 2009. In its questionnaire, the Department
requested that the respondents provide a response to section A of the
Department's questionnaire on September 21, 2009, and to sections C and
D of the questionnaire on October 7, 2009. On September 16, 2009, and
September 18, 2009, the Department granted DHMP's and Eastfound's
requests, respectively, to extend the deadline to submit Sections A, C,
and D. As such, Section A was timely submitted on September 28, 2009,
by both parties. DHMP timely submitted its Sections C and D Response on
October 16, 2009. On October 16, 2009, the Department granted Eastfound
an extension to submit its Sections C and D
[[Page 1599]]
questionnaire. Eastfound timely submitted its Sections C and D Response
on October 23, 2009. The Department issued several supplemental
questionnaires to both DHMP and Eastfound between October and December
2009. Both respondents responded timely to those supplemental
questionnaires.
Postponement of Final Determination and Extension of Provisional
Measures
Pursuant to section 735(a)(2) of the Act, between December 31,
2009, and January 4, 2010, Eastfound, DHMP, and Petitioners requested
that in the event of an affirmative preliminary determination in this
investigation, the Department postpone the final determination by 60
days. Eastfound, DHMP, and Petitioners also each requested that the
Department extend the application of the provisional measures
prescribed under 19 CFR 351.210(e)(2) from a four-month period to a
six-month period. In accordance with section 733(d) of the Act and 19
CFR 351.210(b), because (1) our preliminary determination is
affirmative, (2) the requesting exporters account for a significant
proportion of exports of the subject merchandise, and (3) no compelling
reasons for denial exist, we are granting the requests and are
postponing the final determination until no later than 135 days after
the publication of this notice in the Federal Register. Suspension of
liquidation will be extended accordingly.
Surrogate Country
When the Department is investigating imports from an NME, section
773(c)(1) of the Act directs it to base normal value, in most
circumstances, on the NME producer's factors of production (``FOPs'')
valued in a surrogate market-economy country or countries considered to
be appropriate by the Department. In accordance with section 773(c)(4)
of the Act, in valuing the FOPs, the Department shall utilize, to the
extent possible, the prices or costs of FOPs in one or more market-
economy countries that are at a level of economic development
comparable to that of the NME country and are significant producers of
comparable merchandise. The sources of the surrogate values we have
used in this investigation are discussed under the ``Normal Value''
section below.
The Department's practice with respect to determining economic
comparability is explained in Policy Bulletin 04.1,\9\ which states
that ``OP {Office of Policy{time} determines per capita economic
comparability on the basis of per capita gross national income, as
reported in the most current annual issue of the World Development
Report (The World Bank).'' On September 15, 2009, the Department
identified six countries as being at a level of economic development
comparable to the PRC for the specified POR: India, the Philippines,
Indonesia, Colombia, Thailand, and Peru.\10\ The Department considers
the six countries identified in the Surrogate Countries Memo as
``equally comparable in terms of economic development.'' See Policy
Bulletin 04.1 at 2. Thus, we find that India, the Philippines,
Indonesia, Colombia, Thailand, and Peru are all at an economic level of
development equally comparable to that of the PRC.
---------------------------------------------------------------------------
\9\ See Policy Bulletin 04.1: Non-Market Economy Surrogate
Country Selection Process, (March 1, 2004), (``Policy Bulletin
04.1'') at Attachment II of the Department's Surrogate Country
Letter, also available at https://ia.ita.doc.gov/policy/bull04-1.html.
\10\ See the Department's Memorandum from Kelly Parkhill, Acting
Director, Office of Policy, to Wendy Frankel, Office Director, AD/
CVD Operations, Office 8, regarding, ``Request for a List of
Surrogate Countries for an Antidumping Duty Investigation of Wire
Decking from the People's Republic of China (``PRC''),'' dated
September 15, 2009 (``Surrogate Countries Memo'').
---------------------------------------------------------------------------
On September 30, 2009, the Department invited all interested
parties to submit comments on the surrogate country selection.\11\ The
Department did not receive any comments regarding the Department's
selection of a surrogate country for the preliminary determination.
---------------------------------------------------------------------------
\11\ See the Department's letter regarding, ``Antidumping Duty
Investigation of Wire Decking from the People's Republic of China ''
requesting all interested parties to provide comments on surrogate-
country selection and provide surrogate FOP values from the
potential surrogate countries (i.e., India, Indonesia, the
Philippines, Thailand, Colombia, and Peru), dated September 30,
2009.
---------------------------------------------------------------------------
Policy Bulletin 04.1 provides some guidance on identifying
comparable merchandise and selecting a producer of comparable
merchandise. As noted in the Policy Bulletin, comparable merchandise is
not defined in the statute or the regulations, since it is best
determined on a case-by-case basis. See Policy Bulletin 04.1 at 2. As
further noted in Policy Bulletin 04.1, in all cases, if identical
merchandise is produced, the country qualifies as a producer of
comparable merchandise. Id.
The Department examined worldwide export data for comparable
merchandise, using the six-digit level of the HTS numbers listed in the
scope language for this investigation.\12\ Specifically, we reviewed
the POI export data from the World Trade Atlas (``WTA'') for the HTS
headings. The merchandise subject to the scope of the order is
currently classifiable under subheading HTSUS 9403.90.8040. Wire
decking has also been entered under HTSUS 7217.10, 7217.20, 7326.20,
7326.90, 9403.20.0020, and 9403.20.0030.\13\ The Department found that,
of the countries provided in the Surrogate Country List, using the six-
digit level of the HTS numbers listed in the scope language for this
investigation (the best data available to the Department for this
purpose), all six countries were exporters of comparable merchandise.
Thus, all countries on the Surrogate Country List are considered as
appropriate surrogates because each exported comparable merchandise.
---------------------------------------------------------------------------
\12\ Because the Department was unable to find production data,
we relied on export data as a substitute for overall production data
in this case.
\13\ See Harmonized Tariff Schedule of the United States (2007)
(Rev. 2), available at www.usitc.gov.
---------------------------------------------------------------------------
Policy Bulletin 04.1 also provides some guidance on identifying
significant producers of comparable merchandise and selecting a
producer of comparable merchandise. Further analysis was required to
determine whether any of the countries which produce comparable
merchandise are significant' producers of that comparable merchandise.
The HTS data is reported in either kilograms or pieces, depending upon
the HTS category and country. The data we obtained shows that, during
the POI, worldwide exports from these countries under the relevant HTS
categories were as follows: (1) 355,679 kilograms (HTS 7217.10,
7217.20) and 11,080,755 pieces (HTS 9403.90, 9403.20, 7326.20, 7326.90)
from Colombia; (2) 37,994,423 kilograms from Indonesia; (3) 5,385,873
kilograms from Philippines; (4) 89,367,977 kilograms from Thailand; (5)
1,065,699 kilograms (HTS 7217.10, 7217.20) and 618,727 pieces (HTS
9403.90, 9403.20, 7326.20, 7326.90) from Peru; and (6) 53,185,837
kilograms from India. We find that these exports are sufficient to
establish that all of the potential surrogate countries are significant
producers of comparable merchandise. Thus, all countries on the
Surrogate Country List are considered as appropriate surrogates because
each exported significant comparable merchandise. Finally, we have
reliable data from India on the record that we can use to value the
FOPs. Petitioners, DHMP, and Eastfound submitted surrogate values using
Indian sources, suggesting greater availability of appropriate
surrogate value data in India.
The Department is preliminarily selecting India as the surrogate
country on the basis that: (1) it is at a similar
[[Page 1600]]
level of economic development pursuant to section 773(c)(4) of the Act;
(2) it is a significant producer of comparable merchandise; and (3) we
have reliable data from India that we can use to value the FOPs. Thus,
we have calculated normal value (``NV'') using Indian prices when
available and appropriate to the respondents' FOPs. See Surrogate Value
Memorandum.\14\ In accordance with 19 CFR 351.301(c)(3)(i), for the
final determination in an antidumping investigation, interested parties
may submit publicly available information to value the FOPs within 40
days after the date of publication of the preliminary
determination.\15\
---------------------------------------------------------------------------
\14\ See the Department's memorandum to the file entitled,
``Antidumping Investigation of Wire Decking from the People's
Republic of China: Factor Valuations for the Preliminary
Determination,'' dated concurrently with this notice (``Surrogate
Value Memorandum'').
\15\ In accordance with 19 CFR 351.301(c)(1), for the final
determination of this investigation, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on the record.
The Department generally will not accept the submission of
additional, previously absent-from-the-record alternative surrogate
value information pursuant to 19 CFR 351.301(c)(1). See Glycine from
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and Decision Memorandum
at Comment 2.
---------------------------------------------------------------------------
Surrogate Value Comments
Surrogate factor valuation comments and surrogate value information
with which to value the FOPs in this proceeding were filed on November
13, 2009, by DHMP and Petitioners. On November 18, 2009, DHMP and
Eastfound filed rebuttal surrogate factor valuation comments. On
November 23, 2009, Eastfound filed additional surrogate valuation
comments. On November 24, 2009, Petitioners filed additional comments
on appropriate surrogate values for factors of production reported by
Eastfound and DHMP. For a detailed discussion of the surrogate values
used in this LTFV proceeding, see the ``Factor Valuation'' section
below and the Surrogate Value Memorandum.
Affiliation
Based on the evidence presented in Eastfound's questionnaire
responses, we preliminarily find that Eastfound Metal is affiliated
with Eastfound Material, which also produces subject merchandise,
pursuant to sections 771(33)(E) and (G) of the Act. In addition, based
on the evidence presented in Eastfound's questionnaire responses, we
preliminarily find that Eastfound Metal and Eastfound Material should
be collapsed for the purposes of this investigation. This finding is
based on the determination that Eastfound Metal and Eastfound Material
are affiliated, that Eastfound Metal and Eastfound Material Handling
are both producers of identical products and no retooling would be
necessary in order to restructure manufacturing priorities, and that
there is significant potential for manipulation of price or production
between the parties. See 19 C.F.R. Sec. 351.401(f)(1) and (2). For
further discussion, see the Department's Memorandum regarding,
``Antidumping Duty Investigation of Wire Decking from the People's
Republic of China: Affiliation and Collapsing of Dalian Eastfound Metal
Products Co., Ltd. and Dalian Eastfound Material Handling Products Co.,
Ltd.,'' dated concurrently with this notice.
In response to allegations raised by Petitioners,\16\ we reviewed
Eastfound's relationship with its U.S. customer and we preliminarily
find that Eastfound and its U.S. customer were not affiliated during
the POI under the meaning of section 771(33) of the Act. Specifically,
based on Eastfound's questionnaire responses identifying its ownership
structure, we preliminarily find that Eastfound is not affiliated with
its U.S. customer within the meaning of sections 771(33)(B) and (E) of
the Act. In addition, we preliminarily find that Eastfound is not
affiliated with its U.S. customer within the meaning of sections
771(33)(F) and (G) of the Act, because in its response, Eastfound
presented evidence that the distributor agreement between Eastfound and
its U.S. customer does not offer either party control over the other
party to the agreement. Accordingly, we have used Eastfound's reported
export price (``EP'') sales to the United States for the preliminary
determination. However, we intend to issue additional questions to
Eastfound following the publication of the preliminary determination
with respect to this affiliation issue.
---------------------------------------------------------------------------
\16\ See Letter from Kelley Drye & Warren LLP, regarding ``Wire
Decking from the People's Republic of China - Eastfound Is
Affiliated with Its Exclusive North American Importer and
Distributor,'' dated December 18, 2009, where they allege that
Eastfound and its U.S. Customer are affiliated pursuant to sections
771(33)(B), (E), (F), and (G) of the Act.
---------------------------------------------------------------------------
Separate Rates
In the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate-rate status in NME investigations. See Initiation Notice, 74
FR at 31695. The process requires exporters and producers to submit an
SRA. See also Policy Bulletin 05.1.\17\ The standard for eligibility
for a separate rate is whether a firm can demonstrate an absence of
both de jure and de facto government control over its export
activities. In this instant investigation, the Department received
timely-filed SRA's from seven companies.\18\ The two mandatory
respondents (i.e., Eastfound Metal and Eastfound Material (collectively
Eastfound) and DHMP) and the four separate-rate respondents provided
company-specific information and each\19\ stated that it meets the
criteria for the assignment of a separate rate.
---------------------------------------------------------------------------
\17\ Policy Bulletin 05.1 states: ``while continuing the
practice of assigning separate rates only to exporters, all separate
rates that the Department will now assign in its NME investigations
will be specific to those producers that supplied the exporter
during the period of investigation. Note, however, that one rate is
calculated for the exporter and all of the producers which supplied
subject merchandise to it during the period of investigation. This
practice applied both to mandatory respondents receiving an
individually calculated separate rate as well as the pool of non-
investigated firms receiving the weighted-average of the
individually calculated rates. This practice is referred to as the
application of combination rates because such
rates apply to specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an exporter will apply
only to merchandise both exported by the firm in question and
produced by a firm that supplied the exporter during the period of
investigation.'' See Policy Bulletin 05.1 at 6.
\18\ The seven separate-rate applicants are: (1) Eastfound
Material; (2) Eastfound Metal; (3) DHMP; (4) Dandong Riqian
Logistics Equipment Co. Ltd. (``Riqian''); (5) Globsea Co., Ltd.
(``Globsea''); (6) Ningbo Xinguang Rack Co., Ltd. (``Ningbo
Xinguang''); and (7) Dalian Xingbo Metal Products Co. Ltd. (``Dalian
Xingbo'').
\19\ The non-selected respondents are as follows: Riqian,
Globsea, Ningbo Xinguang, and Dalian Xingbo.
---------------------------------------------------------------------------
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a single
antidumping duty rate. 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 demonstrate that it is
sufficiently independent so as to be entitled to a separate rate.
Exporters can demonstrate this independence through the absence of both
de jure and de facto governmental control over export activities. The
Department analyzes each entity exporting the subject merchandise under
a test arising from Final Determination of Sales at Less Than Fair
Value: Sparklers from the People's Republic of China, 56 FR 20588
[[Page 1601]]
(May 6, 1991) (``Sparklers''), as further developed in 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. In this investigation, one company, Eastfound
Material has provided company-specific information that indicates it is
a wholly-foreign owned entity. Therefore, a separate rate-analysis is
not necessary to determine whether it is independent from government
control.
The other remaining companies have all stated that they are either
joint ventures between PRC and foreign companies, or are wholly PRC-
owned companies. Thus, the Department must analyze whether Eastfound
Metal, DHMP, Riqian, Globsea, Ningbo Xinguang, and Dalian Xingbo can
demonstrate the absence of both de jure and de facto government control
over their 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) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Eastfound Metal, DHMP, Riqian, Globsea,
Ningbo Xinguang, and Dalian Xingbo 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) applicable legislative
enactments that decentralize control of the companies; and (3) formal
measures by the government decentralizing control of companies. See
each company's SRA submission, dated August 21, 2009, through August
31, 2009, where each separate-rate respondent stated that it had no
relationship with any level of the PRC government with respect to
ownership, internal management, and business operations.
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.
In this investigation, Eastfound Metal, DHMP, Riqian, Globsea,
Ningbo Xinguang, and Dalian Xingbo each asserted the following: (1)
that the export prices are not set by, and are not subject to, the
approval of a governmental agency; (2) they have authority to negotiate
and sign contracts and other agreements; (3) they have autonomy from
the government in making decisions regarding the selection of
management; and (4) they retain the proceeds of their export sales and
make independent decisions regarding disposition of profits or
financing of losses. Additionally, each of these companies' SRA
responses indicate that its pricing during the POI does not involve
coordination among exporters. See each company's SRA submissions dated
August 21, 2009, through August 31, 2009. However, evidence placed on
the record by Dalian Xingbo indicates that it did not export wire
decking to the United States during the POI. See the ``Companies Not
Receiving a Separate Rate'' section below for further details.
Evidence placed on the record of this investigation by Eastfound
Material, Eastfound Metal, DHMP, Riqian, Globsea, and Ningbo Xinguang
demonstrate an absence of de jure and de facto government control with
respect to their respective exports of the merchandise under
investigation, in accordance with the criteria identified in Sparklers
and Silicon Carbide. Therefore, we are preliminary granting a separate
rate to these entities.
Companies Not Receiving a Separate Rate
We preliminarily determine that Dalian Xingbo does not qualify for
a separate rate because Dalian Xingbo did not export wire decking to
the United States during the POI. Dalian Xingbo stated that the invoice
it provided in its SRA, which is dated within the POI, for its first
sale to an unaffiliated customer in the United States, is not its
commercial invoice. See Dalian Xingbo's SRA dated August 21, 2009, at
Exhibit 1. The commercial invoice provided by Dalian Xingbo is dated
outside the POI. See Dalian Xingbo's Supplemental SRA questionnaire
dated September 21, 2009, at Exhibit 1. Furthermore, evidence on the
record (U.S. Customs and Border Protection (``CBP'') entry summary form
7501) indicates that Dalian Xingbo exported the above goods from the
PRC to the United States prior to the POI. See Dalian Xingbo's SRA
dated August 21, 2009, at Exhibit 1. Nevertheless, Dalian Xingbo
asserts that because the shipment entered the United States during the
POI, this shipment represents Dalian Xingbo's first sale to an
unaffiliated customer in the United States during the POI. See Dalian
Xingbo's Supplemental SRA questionnaire dated September 21, 2009, at 7/
16.
In the introductory paragraph of the Department's SRA, we state
that the Department will limit its consideration of SRAs in the wire
decking investigation to firms that either exported or sold wire
decking to the United States during the POI. Though Dalian Xingbo
argues that the entry date into the United States of its wire decking
establishes that it either exported or sold wire decking to the United
States during the POI, the Department normally considers the shipment
date as establishing when a product is exported, and the Department
normally considers the date of invoice as establishing the date of
sale, unless record evidence demonstrates otherwise. The documentation
provided by Dalian Xingbo (i.e., CBP entry summary form 7501 and
commercial invoice) indicate that the goods were both sold and exported
to the United States prior to the POI. Thus, we preliminarily determine
that Dalian Xingbo does not qualify for a separate rate in this
investigation.
In addition, though we received a Q&V response from Brynick
Enterprises Limited and Shanghai Hesheng Hardware Products Co., neither
company submitted a separate rate
[[Page 1602]]
application, and therefore will be treated as part of the PRC-wide
entity.
Application of Facts Otherwise Available and Total Adverse Facts
Available
The PRC-Wide Entity and PRC-Wide Rate
The Department has data that indicate there were more exporters of
wire decking from the PRC than those indicated in the response to our
request for Q&V information during the POI. See the Department's
memorandum regarding, ``Antidumping Duty Investigation of Wire Decking
from the People's Republic of China: Delivery of Quantity and Value
Questionnaire and Separate Rate Application to Exporters/Producers,''
dated September 2, 2009 (``Q&V Delivery Memo''). We issued our request
for Q&V information to 83 potential Chinese exporters of the subject
merchandise, in addition to posting the Q&V questionnaire on the
Department's website. See Q&V Delivery Memo. While information on the
record of this investigation indicates that there are numerous
producers/exporters of wire decking in the PRC, we received only nine
timely filed Q&V responses. Although all exporters were given an
opportunity to provide Q&V information, not all exporters provided a
response to the Department's Q&V letter. Therefore, the Department has
preliminarily determined that there were exporters/producers of the
subject merchandise during the POI from the PRC that did not respond to
the Department's request for information. We have treated these PRC
producers/exporters as part of the PRC-wide entity because they did not
apply for a separate rate. See, e.g., Kitchen Racks Prelim, unchanged
in Kitchen Racks Final.
Section 776(a)(2) of the Act provides that, 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 subsections 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.
Information on the record of this investigation indicates that the
PRC-wide entity was non-responsive. Certain companies did not respond
to our questionnaire requesting Q&V information. As a result, pursuant
to section 776(a)(2)(A) of the Act, we find that the use of facts
available (``FA'') is appropriate to determine the PRC-wide rate. See
Preliminary Determination of Sales at Less Than Fair Value, Affirmative
Preliminary Determination of Critical Circumstances and Postponement of
Final Determination: Certain Frozen Fish Fillets from the Socialist
Republic of Vietnam, 68 FR 4986 (January 31, 2003), unchanged in Final
Determination of Sales at Less Than Fair Value and Affirmative Critical
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 37116 (June 23, 2003).
Section 776(b) of the Act provides that, in selecting from among
the facts otherwise available, the Department may employ an adverse
inference if an interested party fails to cooperate by not acting to
the best of its ability to comply with requests for information. See
Statement of Administrative Action, accompanying the Uruguay Round
Agreements Act (``URAA''), H.R. Rep. No. 103-316, 870 (1994) (``SAA'');
see also Notice of Final Determination of Sales at Less Than Fair
Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products
from the Russian Federation, 65 FR 5510, 5518 (February 4, 2000). We
find that, because the PRC-wide entity did not respond to our requests
for information, it has failed to cooperate to the best of its ability.
Therefore, the Department preliminarily finds that, in selecting from
among the facts available, an adverse inference is appropriate.
When employing an adverse inference, section 776 indicates that the
Department may rely upon information derived from the petition, the
final determination from the LTFV investigation, a previous
administrative review, or any other information placed on the record.
In selecting a rate for adverse facts available (``AFA''), the
Department selects a rate that is sufficiently adverse to ensure that
the uncooperative party does not obtain a more favorable result by
failing to cooperate than if it had fully cooperated. It is the
Department's practice to select, as AFA, the higher of the (a) highest
margin alleged in the petition, or (b) the highest calculated rate of
any respondent in the investigation. See Final Determination of Sales
at Less Than Fair Value: Certain Cold-Rolled Carbon Quality Steel
Products from the People's Republic of China, 65 FR 34660 (May 31,
2000), and accompanying Issues and Decision Memorandum, at ``Facts
Available.'' As AFA, we have preliminarily assigned to the PRC-wide
entity a rate of 289.00 percent, the highest calculated rate from the
petition. The Department preliminarily determines that this information
is the most appropriate from the available sources to effectuate the
purposes of AFA. The Department's reliance on the petition rate to
determine an AFA rate is subject to the requirement to corroborate
secondary information, discussed in the Corroboration section below.
Corroboration
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation as FA, it must, to the extent practicable,
corroborate that information from independent sources reasonably at its
disposal. 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.''\20\ The SAA explains that to ``corroborate''
means simply that the Department will satisfy itself that the secondary
information to be used has probative value. Id. The SAA also explains
that independent sources used to corroborate may include, for example,
published price lists, official import statistics and CBP data, and
information obtained from interested parties during the particular
investigation. Id. To corroborate secondary information, the Department
will, to the extent practicable, examine the reliability and relevance
of the information used.\21\
---------------------------------------------------------------------------
\20\ See SAA at 870.
\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).
---------------------------------------------------------------------------
The AFA rate that the Department used is derived from information
in the Petition and from the Antidumping Duty Investigation Initiation
Checklist: Wire Decking from the PRC (``Initiation Checklist'').\22\
Petitioners' methodology for calculating the EP and NV in the petition,
and modified by the
[[Page 1603]]
Department, is discussed in the Initiation Checklist.\23\
---------------------------------------------------------------------------
\22\ See Initiation Checklist at Exhibit V.
\23\ See Initiation Checklist at Exhibit V.
---------------------------------------------------------------------------
Based on our examination of information on the record, including
examination of the petition export prices and normal values, we find
that, for purposes of this investigation, there is not a sufficient
basis to consider that certain petition margins have probative value.
However, there is a sufficient basis to determine that the petition
margin selected does have probative value. In this case, we have
selected a margin that is not so much greater than the highest CONNUM-
specific margin calculated for one of the mandatory respondents in this
proceeding that it can be considered to not have probative value. This
method of selecting an AFA dumping margin is consistent with the recent
final determination involving kitchen appliance shelving and racks from
the PRC and prestressed concrete steel wire strand from the PRC. See
July 20, 2009, Memorandum to the File, regarding Corroboration of the
PRC-Wide Entity Rate and the Wireking Total AFA Rate for the Final
Determination in the Antidumping Duty Investigation of Certain Kitchen
Appliance Shelving and Racks from the People's Republic of China, see
also, Prestressed Concrete Steel Wire Strand From the People's Republic
of China: Preliminary Determination of Sales at Less Than Fair Value,
74 FR 68232 (December 23, 2009).
The Department's practice, when selecting an AFA rate from among
the possible sources of information, has been to ensure that the margin
is sufficiently adverse ``as to effectuate the statutory purposes of
the adverse facts available rule to induce respondents to provide the
Department with complete and accurate information in a timely manner.''
See Notice of Final Determination of Sales at Less Than Fair Value and
Final Negative Critical Circumstances: Carbon and Certain Alloy Steel
Wire Rod from Brazil, 67 FR 55792, 55796 (Aug. 30, 2002); see also
Notice of Final Determination of Sales at Less Than Fair Value: Static
Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8932 (Feb.
23, 1998). As guided by the SAA, the information used as AFA should
ensure an uncooperative party does not benefit more by failing to
cooperate than if it had cooperated fully. See SAA at 870. We conclude
that using DHMP's highest transaction-specific margin as a limited
reference point, the highest petition margin that can be corroborated
within the meaning of the statute is 289.00 percent, which is
sufficiently adverse so as to induce cooperation such that the
uncooperative companies do not benefit from their failure to cooperate.
See Memorandum to the File, regarding Corroboration of the PRC-Wide
Entity Rate and for the Preliminary Determination in the Antidumping
Duty Investigation of Wire Decking from the People's Republic of China,
dated concurrently with this notice. Accordingly, we find that the rate
of 289.00 percent is corroborated within the meaning of section 776(c)
of the Act.
Consequently, we are applying 289.00 percent as the single
antidumping rate to the PRC-wide entity. The PRC-wide rate applies to
all entries of the merchandise under investigation except for entries
from Eastfound Metal, Eastfound Material, DHMP, and the separate rate
applicants receiving a separate rate (i.e., Riqian, Globsea, and Ningbo
Xinguang).
Margin for the Separate Rate Companies
As discussed above, the Department received timely and complete
separate rate applications from Riqian, Globsea, and Ningbo Xinguang,
who are all exporters of wire decking from the PRC during the POI and
who were not selected as mandatory respondents in this investigation.
Through the evidence in their applications, these companies have
demonstrated their eligibility for a separate rate, as discussed above.
Consistent with the Department's practice, as the separate rate, we
have established a margin for the Riqian, Globsea, and Ningbo Xinguang
based on the average of the rates we calculated for the mandatory
respondents, Eastfound and DHMP, excluding any rates that were zero, de
minimis, or based on total adverse facts available.\24\
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\24\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value and Partial Affirmative Determination of Critical
Circumstances: Certain Polyester Staple Fiber from the People's
Republic of China, 71 FR 77373, 77377 (December 26, 2006), unchanged
in Final Determination of Sales at Less Than Fair Value and Partial
Affirmative Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People's Republic of China, 72 FR
19690 (April 19, 2007).
---------------------------------------------------------------------------
Date of Sale
19 CFR 351.401(i) states that, ``in identifying the date of sale of
the merchandise under consideration or foreign like product, the
Secretary normally will use the date of invoice, as recorded in the
exporter or producer's records kept in the normal course of business.''
In Allied Tube, the Court of International Trade (``CIT'') noted that a
``party seeking to establish a date of sale other than invoice date
bears the burden of producing sufficient evidence to satisf{y{time} '
the Department that a different date better reflects the date on which
the exporter or producer establishes the material terms of sale.'''
Allied Tube & Conduit Corp. v. United States 132 F. Supp. 2d at 1090
(CIT 2001) (quoting 19 CFR 351.401(i)) (``Allied Tube''). Additionally,
the Secretary may use a date other than the date of invoice if the
Secretary is satisfied that a different date better reflects the date
on which the exporter or producer establishes the material terms of
sale. See 19 CFR 351.401(i); see also Allied Tube, 132 F. Supp. 2d
1087, 1090-1092. The date of sale is generally the date on which the
parties agree upon all substantive terms of the sale. This normally
includes the price, quantity, delivery terms and payment terms. See
Carbon and Alloy Steel Wire Rod from Trinidad and Tobago: Final Results
of Antidumping Duty Administrative Review, 72 FR 62824 (November 7,
2007), and accompanying Issue and Decision Memorandum at Comment 1;
Notice of Final Determination of Sales at Less Than Fair Value: Certain
Cold-Rolled Flat-Rolled Carbon Quality Steel Products from Turkey, 65
FR 15123 (March 21, 2000), and accompanying Issues and Decision
Memorandum at Comment 1.
Eastfound
For the preliminary determination, we used the shipment date as the
date of sale rather than Eastfound's reported sale date (booking date),
because based on the record evidence to date, we preliminarily find
that shipment date best reflects the date on which the essential terms
of sale are fixed and final. In our analysis of Eastfound's
information, we determined that the sale date reported in Eastfound's
sales database only represents the date that Eastfound chose to record
the sale of merchandise under consideration in its books and records,
not the date the material terms of the sale were established with its
U.S. customer. We asked Eastfound to provide sales based on commercial
invoice date or explain why Eastfound's booking date better reflects
the date on which the exporter established the material terms of sale
(e.g., price, quantity, etc.). Instead, Eastfound explained how it uses
its commercial invoice numbering and dating system to assign invoice
numbers and dates and how it recorded its sales in its books and
records. The information that Eastfound provided did not adequately
demonstrate when the material terms of its sale were established.
Because Eastfound has not adequately demonstrated that the material
terms of sale for Eastfound's
[[Page 1604]]
sales were established on its reported sale date (i.e., booking date)
or any other date, we preliminarily determine Eastfound's shipment date
best reflects the date on which the essential terms are fixed and
final. However, subsequent to the preliminary determination we will
request additional information with respect to this issue.
DHMP
For the preliminary determination, we used DHMP's shipment date as
the date of sale, because, based on record evidence to date, we
preliminarily find that it best represents the date on which the
essential terms of sale are fixed and final. In DHMP's October 16,
2009, questionnaire response, DHMP designated a date of sale other than
the invoice date but did not produce sufficient evidence to establish
that ``a different date better reflects the date on which the exporter
or producer establishes the material terms of sale.'' On November 16,
2009, the Department issued a supplemental questionnaire and explained
that the Department will normally use the date of invoice, unless DHMP
demonstrates that a different date better reflects the date on which
the exporter or producer establishes the material terms of sale. In
DHMP's December 1, 2009, Supplemental Questionnaire Response, DHMP
submitted an alternate database for its U.S. sales during the POI based
on the shipment date. Additionally, in DHMP's December 23, 2009
submission, DHMP stated that the material terms of sale are set at the
time of shipment. Thus, for the preliminary determination, the
Department has used the shipment date as the date of sale. However,
subsequent to the preliminary determination we will request additional
information with respect to this issue.
Fair Value Comparisons
To determine whether sales of wire decking to the United States by
the respondents were made at LTFV, we compared EP to NV, as described
in the ``Export Price'' and ``Normal Value'' sections of this notice.
Export Price
In accordance with section 772(a) of the Act, EP is the price at
which the merchandise subject to this investigation is first sold (or
agreed to be sold) before the date of importation by the producer or
exporter of the merchandise subject to this investigation outside of
the United States to an unaffiliated purchaser in the United States or
to an unaffiliated purchaser for exportation to the United States, as
adjusted under section 772(c) of the Act. In accordance with section
772(a) of the Act, we used EP for DHMP's and Eastfound's U.S. sales
because the merchandise subject to this investigation was sold directly
to the unaffiliated customers in the United States prior to importation
and because constructed export price (``CEP'') was not otherwise
indicated. See Affiliation Section above.
We calculated EP based on the packed prices to unaffiliated
purchasers in, or for exportation to, the United States. We made
deductions, as appropriate, for any movement expenses (e.g., foreign
inland freight from the plant to the port of exportation, domestic
brokerage, international freight to the port of importation, etc.) in
accordance with section 772(c)(2)(A) of the Act. Where foreign inland
freight or foreign brokerage and handling fees were provided by PRC
service providers or paid for in renminbi, we based those charges on
surrogate value rates from India. See ``Factor Valuation'' section
below for further discussion of surrogate value rates.
In determining the most appropriate surrogate values to use in a
given case, the Department's stated practice is to use period-wide
price averages, prices specific to the input in question, prices that
are net of taxes and import duties, prices that are contemporaneous
with the POI, and publicly available data.\25\ We valued brokerage and
handling using a simple average of the brokerage and handling costs
that were reported in public submissions that were filed in three
antidumping duty cases. Specifically, we averaged the public brokerage
and handling expenses reported by Navneet Publications (India) Ltd. in
the 2007-2008 administrative 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 Himalya International Ltd. in the 2005-2006 administrative
review of certain preserved mushrooms from India. Because these values
were not concurrent with the POI of this investigation, we adjusted
these rates for inflation using the Wholesale Price Indices (``WPI'')
for India as published in the International Monetary Fund's (``IMF's'')
International Financial Statistics, available at https://ifs.apdi.net/imf, and then calculated a simple average of the three companies'
brokerage expense data.\26\ See Surrogate Value Memo.
---------------------------------------------------------------------------
\25\ See, e.g., Certain Cased Pencils from the People's Republic
of China; Final Results and Partial Rescission of Antidumping Duty
Administrative Review, 71 FR 38366 (July 6, 2006), and accompanying
Issues and Decision Memorandum at Comment 1.
\26\ See Tapered Roller Bearings and Parts Thereof, Finished or
Unfinished, from the People's Republic of China: Preliminary Results
of the 2007 2008 Administrative Review of the Antidumping Duty
Order, 74 FR 32539 (July 8, 2009), (unchanged in final results)
(``07-08 TRBs'').
---------------------------------------------------------------------------
To value marine insurance, the Department used data from RGJ
Consultants (https://www.rjgconsultants.com/). This source provides
information regarding the per-value rates of marine insurance of
imports and exports to/from various countries. We valued international
freight shipping expenses using contemporaneous rates reported by
Maersk Line Shipping. Where applicable, the Department used the
international freight rates reported for each corresponding origin and
destination port for each month of the POI.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using an FOP 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 NMEs renders price comparisons and the calculation of
production costs invalid under the Department's normal methodologies.
See, e.g., Kitchen Racks Prelim, 71 FR at 19703 (unchanged in Kitchen
Racks Final).
Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOP data reported by respondents during the POI. To calculate
NV, we multiplied the reported per-unit factor-consumption rates by
publicly available surrogate values (except as discussed below). In
selecting the surrogate values, we considered the quality, specificity,
and contemporaneity of the data. See, e.g., Fresh Garlic From the
People's Republic of China: Final Results of Antidumping Duty New
Shipper Review, 67 FR 72139 (December 4, 2002), and accompanying Issues
and Decision Memorandum at Comment 6; and Final Results of First New
Shipper Review and First Antidumping Duty Administrative Review:
Certain Preserved Mushrooms From the People's Republic of China, 66 FR
31204 (June 11, 2001), and accompanying Issues and Decision Memorandum
at Comment 5. As
[[Page 1605]]
appropriate, we adjusted input prices by including freight costs to
make them delivered prices. Specifically, we 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 where appropriate.
This adjustment is in accordance with the Court of Appeals for the
Federal Circuit's decision in Sigma Corp. v. United States, 117 F.3d
1401, 1407-08 (Fed. Cir. 1997). A detailed description of all surrogate
values used for DHMP and Eastfound can be found in the Surrogate Value
Memorandum.
For the preliminary determination, in accordance with the
Department's practice, we used data from the Indian Import Statistics
and other publicly available Indian sources in order to calculate
surrogate values for DHMP's and Eastfound's FOPs (direct materials,
energy, and packing materials) and certain movement expenses. In
selecting the best available information for valuing FOPs in accordance
with section 773(c)(1) of the Act, the Department's practice is to
select, to the extent practicable, surrogate values which are non-
export average values, most contemporaneous with the POI, product-
specific, and tax-exclusive. See, e.g., Notice of Preliminary
Determination of Sales at Less Than Fair Value, Negative Preliminary
Determination of Critical Circumstances and Postponement of Final
Determination: Certain Frozen and Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004),
unchanged in Final Determination of Sales at Less Than Fair Value:
Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic
of Vietnam, 69 FR 71005 (December 8, 2004). The record shows that data
in the Indian Import Statistics, as well as those from the other Indian
sources, are contemporaneous with the POI, product-specific, and tax-
exclusive. See Surrogate Value Memorandum. In those instances where we
could not obtain publicly available information contemporaneous to the
POI with which to value factors, we adjusted the surrogate values
using, where appropriate, the Indian WPI as published in the IMF's
International Financial Statistics. See, e.g., Kitchen Racks, 74 FR at
9600.
Furthermore, with regard to the Indian import-based surrogate
values, we have disregarded import prices that we have reason to
believe or suspect may be subsidized. We have reason to believe or
suspect that prices of inputs from Indonesia, South Korea, and Thailand
may have been subsidized. We have found in other proceedings that these
countries maintain broadly available, non-industry-specific export
subsidies and, therefore, it is reasonable to infer that all exports to
all markets from these countries may be subsidized. See Notice of Final
Determination of Sales at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain Color Television
Receivers From the People's Republic of China, 69 FR 20594 (April 16,
2004) and accompanying Issues and Decision Memorandum at Comment 7.
Further, guided by the legislative history, it is the Department's
practice not 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 (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, we have not used
prices from these countries in calculating the Indian import-based
surrogate values. Additionally, we disregarded prices from NME
countries. Finally, imports that were labeled as originating from an
``unspecified'' country were excluded from the average value, because
the Department could not be certain that
