Certain Potassium Phosphate Salts From the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 12508-12514 [2010-5715]
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Federal Register / Vol. 75, No. 50 / Tuesday, March 16, 2010 / Notices
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[FR Doc. 2010–5716 Filed 3–15–10; 8:45 am]
BILLING CODE 3510–DR–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–962]
Certain Potassium Phosphate Salts
From the People’s Republic of China:
Preliminary Determination of Sales at
Less Than Fair Value
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce
DATES: Effective Date: March 16, 2010.
SUMMARY: The Department of Commerce
(‘‘the Department’’) preliminarily
determines that certain potassium
phosphate salts (‘‘salts’’) from the
People’s Republic of China (‘‘PRC’’) are
being, or are likely to be, sold in the
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United States at less than fair value
(‘‘LTFV’’), as provided in section 733 of
the Tariff Act of 1930, as amended
(‘‘Act’’), for the period of investigation
(‘‘POI’’), January 1, 2009, through June
30, 2009. The estimated margins of sales
at LTFV are shown in the ‘‘Preliminary
Determination’’ section of this notice.
Interested parties are invited to
comment on this preliminary
determination.
FOR FURTHER INFORMATION CONTACT:
Irene Gorelik or Katie Marksberry, AD/
CVD Operations, Office 9, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington DC 20230;
telephone: (202) 482–6905 or (202) 482–
7906, respectively.
SUPPLEMENTARY INFORMATION:
Initiation
On September 24, 2009, the
Department received an antidumping
duty petition concerning imports of
salts from the PRC filed in proper form
by Performance Products LP (‘‘ICL’’) and
Prayon, Inc. (collectively,
‘‘Petitioners’’).1 The Department
initiated this investigation on October
14, 2009.2
On November 17, 2009, the United
States International Trade Commission
(‘‘ITC’’) issued an affirmative
preliminary determination that there is
a reasonable indication that an industry
in the United States is threatened with
material injury by reason of imports
from the PRC of dipotassium phosphate
(‘‘DKP’’), monopotassium phosphate
(‘‘MKP’’), and tetrapotassium
pyrophosphate (‘‘TKP’’). Also on
November 17, 2009, the ITC issued a
negative preliminary determination
with respect to sodium
tripolyphosphate (‘‘STPP’’) stating that
there is no reasonable indication that an
industry producing STPP is materially
injured or threatened with material
injury by reason of imports from the
PRC.3 The ITC’s determination was
1 See Petition for the Imposition of Antidumping
and Countervailing Duties on Imports of Certain
Sodium and Potassium Phosphate Salts from the
People’s Republic of China, dated September 24,
2009 (‘‘Petition’’).
2 See Certain Sodium and Potassium Phosphate
Salts from the People’s Republic of China: Initiation
of Antidumping Duty Investigation, 74 FR 54024
(October 21, 2009), (‘‘Initiation Notice’’).
3 Please note that after the Initiation Notice was
published the ITC made a negative determination
with respect to Sodium Tripolyphosphate, the only
sodium phosphate salt included in the scope of the
investigation. The Department subsequently issued
a memo stating that the official name of this
investigation is now Certain Potassium Phosphate
Salts from the People’s Republic of China. See
Memorandum to the File, from Katie Marksberry,
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published in the Federal Register on
November 23, 2009.4
Scope Comments
In accordance with the preamble to
our regulations, we set aside a period of
time for parties to raise issues regarding
product coverage and encouraged all
parties to submit comments within 20
calendar days of publication of the
Initiation Notice.5 We did not receive
any scope comments.
Period of Investigation
The POI is January 1, 2009, through
June 30, 2009. This period corresponds
to the two most recent fiscal quarters
prior to the month of the filing of the
petition.6
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Respondent Selection
In the Initiation Notice, the
Department stated that it intended to
select respondents based on quantity
and value (‘‘Q&V’’) questionnaires.7 On
October 15, 2009, the Department
requested Q&V information from the 60
companies that Petitioners identified as
potential exporters or producers of salt
from the PRC.8 Additionally, the
Department also posted the Q&V
questionnaire for this investigation on
its Web site at https://ia.ita.doc.gov/iahighlights-and-news.html. The
Department received timely Q&V
responses from eleven exporters/
producers that shipped merchandise
under investigation to the United States
during the POI.
On November 13, 2009, the
Department selected SD BNI(LYG) Co.
Ltd. (‘‘SD BNI’’), and SiChuan Blue
Sword Import & Export Co., Ltd.
(‘‘SiChuan Blue Sword’’), as mandatory
respondents in this investigation.9 The
Department sent its antidumping duty
questionnaire to SD BNI and SiChuan
Blue Sword on November 16, 2009. On
December 7, 2009, SiChuan Blue Sword,
filed a letter stating that it would not
International Trade Compliance Analyst, regarding
Certain Potassium Phosphate Salts from the
People’s Republic of China, dated November 12,
2009.
4 See Investigation Nos. 701–TA–473 and 731–
TA–1173 (Preliminary) Certain Sodium and
Potassium Phosphate Salts From China, 74 FR
61173 (November 23, 2009).
5 See Antidumping Duties; Countervailing Duties;
Final Rule, 62 FR 27296, 27323 (May 19, 1997). See
also Initiation Notice, 74 FR at 54024.
6 See 19 CFR 351.204(b)(1).
7 See Initiation Notice, 74 FR at 54027.
8 See Petition at Vol. 2., Exhibit General–12.
9 See Memorandum to James C. Doyle, Director,
Office IX, from Katie Marksberry, Case Analyst,
through Catherine Bertrand, Program Manager,
Office IX; regarding Antidumping Duty
Investigation of Certain Potassium Phosphate Salts
from the People’s Republic of China, dated
November 13, 2009 (‘‘Respondent Selection
Memo’’).
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participate as a mandatory respondent
in this investigation.10
On December 18, 2009, the
Department determined that because it
was still early enough in the
investigation and because there were no
requests for voluntary respondent
treatment,11 the Department would
select the next largest producer/exporter
of certain potassium phosphate salts as
a mandatory respondent. Therefore the
Department selected Wenda as a
mandatory respondent after an analysis
of the Q&V responses showed it to be
the next largest producer/exporter.12 On
December 18, 2009, the Department sent
Wenda the antidumping duty
questionnaire, and on January 8, 2010,
Wenda filed its Section A response. In
its Section A response, Wenda corrected
its Q&V data which was used as the
basis of respondent selection.13 Because
the Q&V information changed
substantially between Wenda’s original
Q&V submission and its Section A
response, on February 4, 2010, the
Department discontinued Wenda’s
status as a mandatory respondent and
stated that we would continue to
consider its request for separate rate
status.14 On February 5, 2010, the
Department received comments from
Wenda regarding the Department’s
decision to discontinue its status as a
mandatory respondent. On February 16,
2010, Petitioners filed rebuttal
comments in response to Wenda’s
February 5, 2010, comments, and on
February 18, 2010, Wenda submitted
10 See December 7, 2009, Letter to the Department
from SiChuan Blue Sword Import & Export Co., Ltd.
11 We note that Wenda Co., Ltd. (‘‘Wenda’’) filed
a request for Voluntary Respondent Treatment on
October 15, 2009, and withdrew its request on
November 13, 2009. See letter to the Department
from Wenda; regarding Sodium and Potassium
Phosphate Salts from the People’s Republic of
China, Antidumping Duty Investigation; Request for
Voluntary Respondent Treatment, dated October 15,
2009 (‘‘Wenda’s Voluntary Request Memo’’); see also
letter to the Department from Wenda; regarding
Sodium and Potassium Phosphate Salts from the
People’s Republic of China, Antidumping Duty
Investigation; Withdrawal of Request for Voluntary
Respondent Treatment, dated November 13, 2009
(‘‘Wenda’s Voluntary Withdrawal Memo’’).
12 See Memorandum to James C. Doyle, Director,
Office IX, from Katie Marksberry, Case Analyst,
through Catherine Bertrand, Program Manager,
Office IX; regarding Antidumping Duty
Investigation of Certain Potassium Phosphate Salts
from the People’s Republic of China: Selection of
Additional Mandatory Respondent, dated December
18, 2009 (‘‘Additional Respondent Selection
Memo’’).
13 See Respondent Selection Memo.
14 See Memorandum to James C. Doyle, Director,
Office IX, from Catherine Bertrand, Program
Manager, Office IX; Antidumping Duty
Investigation of Certain Potassium Phosphate Salts
from the People’s Republic of China:
Discontinuation of Mandatory Respondent Status
for Wenda Co. Ltd., dated February 4, 2010.
(‘‘Wenda Deselection Memo’’).
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additional comments in response to the
Petitioners’ most recent comments.
Additional Case Background
We received a Section A response on
December 7, 2009, from SD BNI.15 On
December 22, 2009, we received an
improperly filed Section C response
from SD BNI. The deadline for the
Section D response was also December
22, 2009, but no response was filed. We
sent a letter to SD BNI on December 28,
2009, stating that its Section C response
was not properly filed and its Section D
response was not filed at all by the
deadline, and we provided another
week, until January 4, 2010, for SD BNI
to re-file its Section C response and to
file its Section D response.16 On January
6, 2010, the Department received an
improperly filed letter from SD BNI
asking for more information as to the
reason its Section C response was not
properly filed and asking for an
extension to submit its Section C and D
responses. In its January 6, 2010,
response SD BNI also asked whether the
Department would accept current, postPOI production information to respond
to the Department’s NME
questionnaires.17 On January 7, 2010,
the Department granted SD BNI a third
opportunity to submit its Section C
response and detailed how to properly
file documents—per the Department’s
regulations. The Department also
informed SD BNI that it must report the
POI production and could not base
Section D on its own post-POI
production. The deadline to submit
these responses was January 19, 2010.18
On January 20, 2010, the Department
received a Section D response from SD
BNI, which did not fully respond to all
of the Department’s concerns.19 SD BNI
failed to submit a Section C response by
this due date.
15 See Letter from SD BNI to the Department;
regarding Certain Potassium Phosphate Salts from
China (A–570–962): Section A Questionnaire
Response, dated December 7, 2009.
16 See Letter to SD BNI (LYG) Co., Ltd. from the
Department; regarding Certain Potassium Phosphate
Salts from the People’s Republic of China, dated
December 28, 2009.
17 See Memorandum to the File; from Katie
Marksberry, International Trade Compliance
Analyst; regarding Certain Potassium Phosphate
Salts from the People’s Republic of China: SD BNI
(LYG) Co., Ltd. Letter, dated January 11, 2010
(placing SD BNI’s improperly filed January 6, 2010,
letter on the official record of the investigation.)
18 See Letter to SD BNI (LYG) Co., Ltd. from the
Department; regarding Certain Potassium Phosphate
Salts from the People’s Republic of China, dated
January 7, 2010.
19 See Letter from SD BNI to the Department;
regarding Certain Potassium Phosphate Salts from
China (A–570–962): Section D Questionnaire
Response, dated January 20, 2010.
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Separate Rate Applications
Scope of Investigation
On November 30, 2009, we received
a timely filed joint separate rate
application from Chengdu Long Tai
Biotechnology Co., Ltd. and SnowApple Group Limted. On December 22,
2009, we received timely filed separate
rate applications from Wenda, Yunnan
Newswift Company Ltd., and Tianjin
Chengyi International Trading Co., Ltd.
See the ‘‘Separate Rates’’ section below
for further discussion on the eligibility
for a separate rate. On February 3, 2010,
the Department issued Wenda a
supplemental questionnaire requesting
additional information. Additionally, on
February 18, 2010, the Department
issued Chengdu Long Tai Biotechnology
Co., Ltd. and Snow-Apple Group
Limited a supplemental questionnaire
requiring that each company submit an
individual application. Additionally, on
February 18, 2010, the Department
issued Newswift Company Ltd. a
supplemental questionnaire requesting
additional information. Wenda, Yunnan
Newswift Company Ltd., and SnowApple Group Limited submitted timely
responses to these questionnaires.
Chengdu Long Tai did not submit an
individual separate rate application.
The phosphate salts covered by this
investigation include anhydrous
Monopotassium Phosphate (MKP),
anhydrous Dipotassium Phosphate
(DKP) and Tetrapotassium
Pyrophosphate (TKPP), whether
anhydrous or in solution (collectively
‘‘phosphate salts’’).
TKPP, also known as normal
potassium pyrophosphate,
Diphosphoric acid or Tetrapotassium
salt, is a potassium salt with the formula
K4P2O7. The CAS registry number for
TKPP is 7320–34–5. TKPP is typically
18.7% phosphorus and 47.3%
potassium. It is generally greater than or
equal to 43.0% P2O5 content. TKPP is
classified under heading 2835.39.1000,
HTSUS.
MKP, also known as Potassium
dihydrogen phosphate, KDP, or
Monobasic potassium phosphate, is a
potassium salt with the formula
KH2PO4. The CAS registry number for
MKP is 7778–77–0. MKP is typically
22.7% phosphorus, 28.7% potassium
and 52% P2O5. MKP is classified under
heading 2835.24.0000, HTSUS.
DKP, also known as Dipotassium salt,
Dipotassium hydrogen orthophosphate
or Potassium phosphate, dibasic, has a
chemical formula of K2HPO4. The CAS
registry number for DKP is 7758–11–4.
DKP is typically 17.8% phosphorus,
44.8% potassium and 40% P2O5
content. DKP is classified under heading
2835.24.0000, HTSUS.
The products covered by this
investigation include the foregoing
phosphate salts in all grades, whether
food grade or technical grade. The
product covered by this investigation
includes anhydrous MKP and DKP
without regard to the physical form,
whether crushed, granule, powder or
fines. Also covered are all forms of
TKPP, whether crushed, granule,
powder, fines or solution.
For purposes of the investigation, the
narrative description is dispositive, not
the tariff heading, American Chemical
Society, CAS registry number or CAS
name, or the specific percentage
chemical composition identified above.
Product Characteristics and
Questionnaires
In the Initiation Notice, the
Department asked all parties in this
investigation for comments on the
appropriate product characteristics for
defining individual products. We did
not receive comments from interested
parties on product characteristics.
Surrogate Country Comments
On January 7, 2010, the Department
determined that India, the Philippines,
Indonesia, Thailand, Ukraine, and Peru,
are countries comparable to the PRC in
terms of economic development.20
On January 8, 2010, the Department
requested comments on surrogate
country selection from the interested
parties in this investigation. On January
29, 2010, Petitioners submitted
surrogate country comments. No other
interested parties commented on the
selection of a surrogate country.
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20 See
January 8, 2010, Letter to All Interested
Parties, regarding Antidumping Duty Investigation
of Certain Potassium Phosphate Salts from the
People’s Republic of China: Surrogate Country List,
attaching January 7, 2010, Memorandum to
Catherine Bertrand, Program Manager, Office 9, AD/
CVD Operations, from Kelly Parkhill, Acting
Director, Office for Policy, regarding Request for
List of Surrogate Countries for an Antidumping
Duty Investigation of Certain Potassium Phosphate
Salts from the People’s Republic of China
(‘‘Surrogate Country List’’).
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Non-Market Economy Country
For purposes of initiation, Petitioners
submitted LTFV analyses for the PRC as
a non-market economy (‘‘NME’’).21 The
Department considers the PRC to be a
NME country.22 In accordance with
21 See Initiation Notice, 74 FR 29665 (June 23,
2009).
22 See Preliminary Determination of Sales at Less
Than Fair Value and Postponement of Final
Determination: Coated Free Sheet Paper from the
People’s Republic of China, 72 FR 30758, 30760
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section 771(18)(C)(i) of the Act, any
determination that a foreign country is
an NME country shall remain in effect
until revoked by the administering
authority. No party has challenged the
designation of the PRC as an NME
country in this investigation. Therefore,
we continue to treat the PRC as an NME
country for purposes of this preliminary
determination and calculated normal
value in accordance with section 773(c)
of the Act, which applies to all NME
countries.
Wenda’s Status in This Investigation
As stated above in the ‘‘Respondent
Selection’’ section, on February 4, 2010,
the Department discontinued Wenda’s
status as a mandatory respondent in this
investigation. On February 5, 2010, the
Department received comments from
Wenda requesting that we reconsider
the decision to deselect Wenda as a
mandatory respondent, or to allow
Wenda to participate as a voluntary
respondent. Wenda argued the
Department has the resources to
investigate two respondents and that it
had already cooperated with the
Department in submitting its
questionnaire responses. Additionally,
Wenda argued that the Department is
risking having no calculated margins by
deselecting Wenda, that the Court of
International Trade (‘‘CIT’’) has recently
determined that we are not selecting an
adequate number of respondents, and
that allowing Wenda to participate as a
voluntary respondent would not impede
the Department’s investigation.
On February 16, 2010, the Department
received comments from Petitioners
rebutting Wenda’s February 5, 2010
comments. They stated that we should
not reconsider our decision to deselect
Wenda because Wenda was not
deselected based on the Department’s
resources, but rather based on Wenda’s
conduct during the investigation.
Furthermore, Petitioners raised further
questions about Wenda’s Section A
reported Q&V, and stated that Wenda
withdrew its request to be a voluntary
respondent. Petitioners argued that both
of these are reason to deny Wenda’s
request for reconsideration.
The Department continues to find that
the determination made in the February
4, 2010, memorandum discontinuing
Wenda’s status as a mandatory
respondent was appropriate. The
Department did not deselect Wenda
based on resource constraints, but rather
because Wenda’s Section A Q&V
(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) (‘‘CFS Paper’’).
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information was significantly different
from the information provided by
Wenda in its Q&V questionnaire
response. The Department determined
that it would be inappropriate to
continue to individually investigate
Wenda as a mandatory respondent
because the corrected Q&V information
indicates that Wenda is actually one of
the smallest companies by volume.23 In
other words, the Department selected
Wenda as a mandatory respondent on
the basis of information later shown to
be significantly incorrect. The
Department’s procedures and timetables
rely on the record data provided by
interested parties, and when this data is
shown to be false, other, larger,
potential respondents are effectively
prohibited from participation because of
statutory deadlines. Thus, it would be
inappropriate to review Wenda now that
it is clear that the information upon
which the Department based its
decision to select Wenda as a mandatory
respondent was incorrect.
Additionally, the Department notes
that Wenda does not have a request for
voluntary treatment on the record of the
investigation because its original request
was withdrawn.24 Furthermore,
voluntary respondents are required to
complete responses to the Department’s
NME questionnaire on the due dates for
the original mandatory respondents, but
Wenda did not do this.
Separate Rates
In proceedings involving NME
countries, there is a rebuttable
presumption that all companies within
the country are subject to government
control and thus should be assessed a
single antidumping duty rate.25 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.26
In the Initiation Notice, the
Department notified parties of the
application process by which exporters
and producers may obtain separate rate
23 See
Wenda Deselection Memo at 2.
Wenda’s Voluntary Request Memo; see also
Wenda’s Voluntary Withdrawal Memo.
25 See 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, 55040 (September 24, 2008)
(‘‘PET Film LTFV Final’’).
26 See Final Determination of Sales at Less Than
Fair Value: Sparklers From the People’s Republic of
China, 56 FR 20588 (May 6, 1991) (‘‘Sparklers’’); see
also Notice of Final Determination of Sales at Less
Than Fair Value: Silicon Carbide From the People’s
Republic of China, 59 FR 22585 (May 2, 1994)
(‘‘Silicon Carbide’’), and § 351.107(d) of the
Department’s regulations.
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24 See
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status in NME investigations.27 The
process requires exporters and
producers to submit a separate-rate
status application. The Department’s
practice is discussed further in 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.28
Yunnan Newswift, Tianjin Chengyi,
Snow-Apple, and Wenda (hereinafter
referred to as ‘‘Separate Rate
Companies’’), have provided companyspecific information to demonstrate that
they operate independently of de jure
and de facto government control or are
wholly foreign owned, and therefore
satisfy the standards for the assignment
of a separate rate. For each of the
Separate Rate Companies we are
granting the separate rate only to the
name of the company that appears on
the English translated copy of the
business license in each company’s
SRA.29
We have considered whether each
PRC company that submitted a complete
application or complete Section A
Response as a mandatory respondent, is
eligible for a separate rate. The
Department’s separate rate test is not
concerned, in general, with
macroeconomic/border-type controls,
e.g., export licenses, quotas, and
minimum export prices, particularly if
these controls are imposed to prevent
dumping.30 The test focuses, rather, on
controls over the investment, pricing,
27 See
Initiation Notice, 74 FR 29665.
Policy Bulletin 05.1 states: {w}hile
continuing the practice of assigning separate rates
only to exporters, all separate rates that the
Department will now assign in its NME
investigations will be specific to those producers
that supplied the exporter during the period of
investigation. Note, however, that one rate is
calculated for the exporter and all of the producers
which supplied subject merchandise to it during
the period of investigation. This practice applies
both to mandatory respondents receiving an
individually calculated separate rate as well as the
pool of non-investigated firms receiving the
weighted-average of the individually calculated
rates. This practice is referred to as the application
of ‘‘combination rates’’ because such rates apply to
specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an
exporter will apply only to merchandise both
exported by the firm in question and produced by
a firm that supplied the exporter during the period
of investigation.’’ See Policy Bulletin 05.1 at 6.
29 See Certain Frozen Warmwater Shrimp from
the Socialist Republic of Vietnam: Final Results and
Final Partial Rescission of Antidumping Duty
Administrative Review, 74 FR 47191 (September 15,
2009); and accompanying Issues and Decision
Memorandum at Comment 17.
30 See Notice of Final Determination of Sales at
Less Than Fair Value: Certain Preserved
Mushrooms from the People’s Republic of China, 63
FR 72255, 72256 (December 31, 1998).
28 The
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and output decision-making process at
the individual firm level.31
To establish whether a firm is
sufficiently independent from
government control of its export
activities to be entitled to a separate
rate, the Department analyzes each
entity exporting the merchandise under
investigation under a test arising from
the Sparklers, as further developed in
Silicon Carbide.32 In accordance with
the separate rate criteria, the
Department assigns separate rates in
NME cases only if respondents can
demonstrate the absence of both de jure
and de facto governmental control over
export activities.
1. 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.33
The evidence provided by the
Separate Rate Companies supports a
preliminary finding of de jure absence
of governmental control based on the
following: (1) An absence of restrictive
stipulations associated with the
individual exporter’s business and
export licenses; (2) the applicable
legislative enactments decentralizing
control of the companies; and (3) any
other formal measures by the
government decentralizing control of
companies. See, e.g., Yunnan
Newswift’s December 22, 2009, SRA at
6–8; and Tianjin Chengyi’s SRA at 6–9.
2. Absence of De Facto Control
Typically the Department considers
four factors in evaluating whether each
respondent is subject to de facto
governmental control of its export
functions: (1) Whether the export prices
are set by or are subject to the approval
of a governmental agency; (2) whether
the respondent has authority to
31 See Notice of Final Determination of Sales at
Less than Fair: Value Certain Cut-to-Length Carbon
Steel Plate from Ukraine, 62 FR 61754, 61758
(November 19, 1997), and Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, from
the People’s Republic of China: Final Results of
Antidumping Duty Administrative Review, 62 FR
61276, 61279 (November 17, 1997).
32 See Final Determination of Sales at Less Than
Fair Value: Sparklers From the People’s Republic of
China, 56 FR 20588 (May 6, 1991) (‘‘Sparklers’’); see
also Notice of Final Determination of Sales at Less
Than Fair Value: Silicon Carbide From the People’s
Republic of China, 59 FR 22585 (May 2, 1994)
(‘‘Silicon Carbide’’).
33 See Sparklers, 56 FR at 20589.
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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.34 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 governmental control
which would preclude the Department
from assigning separate rates.
We determine that, for the Separate
Rate Companies, the evidence on the
record supports a preliminary finding of
de facto absence of governmental
control based on record statements and
supporting documentation showing the
following: (1) Each exporter sets its own
export prices independent of the
government and without the approval of
a government authority; (2) each
exporter retains the proceeds from its
sales and makes independent decisions
regarding disposition of profits or
financing of losses; (3) each exporter has
the authority to negotiate and sign
contracts and other agreements; and (4)
each exporter has autonomy from the
government regarding the selection of
management. See, e.g., Yunnan
Newswift’s December 22, 2009, SRA at
9–15; and Tianjin Chengyi’s SRA at 9–
14.
3. Wholly Foreign-Owned
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In their separate-rate applications,
two separate rate companies, Wenda
and Snow-Apple, reported that they
were wholly owned by individuals or
companies located in a market economy
country during the POI.35 Therefore,
because they reported being wholly
foreign-owned during the POI, and we
have no evidence indicating that they
were under the control of the PRC, a
separate rate analysis is not necessary to
determine whether these companies are
independent from government
control.36 Accordingly, we have
preliminarily granted a separate rate to
these companies.
34 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).
35 See Wenda’s December 22, 2009, SRA at 7; see
also Snow-Apple’s February 24, 2010, SRA at 6.
36 See Notice of Final Determination of Sales at
Less Than Fair Value: Creatine Monohydrate From
the People’s Republic of China, 64 FR 71104–71105
(December 20, 1999) (where the respondent was
wholly foreign-owned, and thus, qualified for a
separate rate).
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The evidence placed on the record of
this investigation by the Separate Rate
Companies, demonstrates an absence of
de jure and de facto government control
with respect to each of the exporter’s
exports of the merchandise under
investigation, in accordance with the
criteria identified in Sparklers and
Silicon Carbide. As a result, we have
granted the Separate Rate Companies a
margin based on the Petition margins.
Application of Adverse Facts Available,
the PRC-Wide Entity and PRC-Wide
Rate
The Department has data that indicate
there were more exporters of salts from
the PRC than those indicated in the
response to our request for Q&V
information during the POI. See
Respondent Selection Memorandum.
We issued our request for Q&V
information to sixty potential Chinese
exporters of the merchandise under
investigation, in addition to posting the
Q&V questionnaire on the Department’s
Web site. While information on the
record of this investigation indicates
that there are other exporters/producers
of salts in the PRC, we received only
eleven 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.
Furthermore, Sichuan Blue Sword,
which responded to the Department’s
Q&V questionnaire and reported
shipments during the POI, and was
chosen by the Department as a
mandatory respondent, did not respond
to the Department’s full antidumping
duty questionnaire. Therefore, the
Department has preliminarily
determined that there were exporters/
producers of the merchandise under
investigation during the POI from the
PRC that did not respond to the
Department’s request for information.
We have treated these PRC exporters/
producers, including Sichuan Blue
Sword, as part of the PRC-wide entity
because they did not qualify for a
separate rate.37
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
37 See, e.g., Preliminary Determination of Sales at
Less Than Fair Value, Postponement of Final
Determination, and Preliminary Partial
Determination of Critical Circumstances: Diamond
Sawblades and Parts Thereof From the People’s
Republic of China, 70 FR 77121, 77128 (December
29, 2005), unchanged in Final Determination of
Sales at Less Than Fair Value and Final Partial
Affirmative Determination of Critical
Circumstances: Diamond Sawblades and Parts
Thereof from the People’s Republic of China, 71 FR
29303 (May 22, 2006).
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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 PRCwide entity was non-responsive. Certain
companies did not respond to our
questionnaire requesting Q&V
information or the Department’s request
for more 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.38
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.39 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 of the Act
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 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
38 See Notice of 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 Notice of 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).
39 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).
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petition, or (b) the highest calculated
rate of any respondent in the
investigation.40 As AFA, we have
preliminarily assigned to the PRC-wide
entity a rate of 95.40 percent, which is
the highest margin alleged in the
Petition.41 The Department
preliminarily determines that this
information is the most appropriate
from the available sources to effectuate
the purposes of AFA.
cooperate with the Department and
significantly impeded this investigation
by not submitting a properly filed
Section C response after the Department
provided three opportunities for SD BNI
to do so. Therefore, because SD BNI was
selected as a mandatory respondent and
failed to submit the information
required, SD BNI will not receive a
separate rate and will remain part of the
PRC-wide entity.
Application of Adverse Facts Available
for SD BNI
As detailed above in the ‘‘Additional
Case Background’’ Section, despite
numerous attempts by the Department
to provide additional instruction and
three additional opportunites for SD
BNI to file a Section C response, there
is not a Section C response on the
record of the investigation. Therefore,
pursuant to sections 776(a)(2)(A), (B),
and (C) of the Act, we are applying facts
otherwise available to SD BNI because
the Department finds that the
information necessary to calculate an
accurate and otherwise reliable margin
is not available on the record with
respect to SD BNI. Additionally, the
Department finds that SD BNI failed to
provide the information requested by
the Department in a timely manner and
in the form required, and significantly
impeded the Department’s ability to
calculate an accurate margin for SD BNI.
The Department is unable to calculate a
margin without a Section C response,
requiring the application of facts
otherwise available to SD BNI for the
purpose of this preliminary
determination.
In addition, in accordance with
section 776(b) of the Act, the
Department is applying an adverse
inference in selecting the facts available
rate as it has determined that SD BNI
did not act to the best of its ability to
Corroboration
Section 776(c) of the Act provides
that, when the Department relies on
secondary information in using the facts
otherwise available, it must, to the
extent practicable, corroborate that
information from independent sources
that are reasonably at its disposal. We
have interpreted ‘‘corroborate’’ to mean
that we will examine the reliability and
relevance of the information
submitted.42 Because there are no
margins calculated for the mandatory
respondents, to corroborate the 95.40
percent margin used as AFA for the
China-wide entity, to the extent
appropriate information was available,
we are affirming our pre-initiation
analysis of the adequacy and accuracy
of the information in the petition.43
During our pre-initiation analysis, we
examined evidence supporting the
calculations in the petition and the
supplemental information provided by
Petitioner prior to initiation to
determine the probative value of the
margins alleged in the petition. During
our pre-initiation analysis, we examined
the information used as the basis of
export price and normal value (‘‘NV’’) in
the petition, and the calculations used
to derive the alleged margins. Also
during our pre-initiation analysis, we
examined information from various
independent sources provided either in
the petition or, based on our requests, in
supplements to the petition, which
corroborated key elements of the export
price and NV calculations.44 We
received no comments as to the
relevance or probative value of this
information. Therefore, the Department
finds that the rates derived from the
petition and used for purposes of
initiation have probative value for the
purpose of being selected as the AFA
rate assigned to the PRC-wide entity.
Margin for the Separate Rate
Companies
The Department received timely and
complete separate rate applications from
the Separate Rate Companies. The
evidence placed on the record of this
investigation by the Separate Rate
Companies demonstrates an absence of
de jure and de facto government control
with respect to each of the exporter’s
exports of the merchandise under
investigation, in accordance with the
criteria identified in Sparklers and
Silicon Carbide. As a result, for the
purposes of this preliminary
determination, we have granted the
Separate Rate Companies an antidumping duty margin based on an
average of the rates submitted in the
Petition.45 This rate is 64.55 percent.
Combination Rates
In the Initiation Notice, the
Department stated that it would
calculate combination rates for certain
respondents that are eligible for a
separate rate in this investigation. See
Initiation Notice, 74 FR at 54024. This
practice is described in Policy Bulletin
05.1, available at https://ia.ita.doc.gov/.
Preliminary Determination
The preliminary weighted-average
dumping margins are as follows:
Weightedaverage margin
Supplier
Snow-Apple Group Limited ........................................................
Tianjin Chengyi International Trading (Tianjin) Co., Limited ......
Tianjin Chengyi International Trading (Tianjin) Co., Limited ......
Wenda Co., Ltd. .........................................................................
Yunnan Newswift Company Ltd .................................................
Yunnan Newswift Company Ltd. ................................................
Yunnan Newswift Company Ltd. ................................................
PRC-Wide ** ...............................................................................
sroberts on DSKD5P82C1PROD with NOTICES
Exporter
Chengdu Long Tai Biotechnology Co., Ltd ................................
Zhenjiang Dantu Guangming Auxiliary Material Factory ...........
Sichuan Shifang Hongsheng Chemicals Co., Ltd ......................
Thermphos (China) Food Additive Co., Ltd ...............................
Guangxi Yizhou Yisheng Fine Chemicals Co., Ltd ....................
Mainzhu Hanwang Mineral Salt Chemical Co., Ltd ...................
Sichuan Shengfeng Phosphate Chemical Co., Ltd ....................
.....................................................................................................
69.58
69.58
69.58
69.58
69.58
69.58
69.58
95.40
** In this case, the PRC-wide rate includes Sichuan Blue Sword Import and Export Co., Ltd. and SD BNI(LYG) Co. Ltd.
40 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 21, 2000) and accompanying
Issues and Decision Memorandum at Comment 1.
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16:33 Mar 15, 2010
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41 The Department notes that in determining the
AFA margin, the Department did not take into
account the margins listed in the petition for STPP.
42 See, e.g. Certain Cold-Rolled Flat-Rolled
Carbon-Quality Steel Products From Brazil: Notice
of Final Determination of Sales at Less Than Fair
Value, 65 FR 5554, 5568 (February 4, 2000).
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Sfmt 4703
43 See Antidumping Investigation Initiation
Checklist: Certain Sodium and Potassium
Phosphate Salts (‘‘Initiation Checklist’’).
44 See id.
45 The Department notes that in calculating the
average margin, the Department did not take into
account the margins listed in the petition for STPP.
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Disclosure
We will disclose the calculations
performed within five days of the date
of publication of this notice to parties in
this proceeding in accordance with 19
CFR 351.224(b).
sroberts on DSKD5P82C1PROD with NOTICES
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. For the exporter/producer
combinations listed in the chart above,
the following cash deposit requirements
will be effective upon publication of the
preliminary determination for all
shipments of merchandise under
consideration entered or withdrawn
from warehouse, for consumption on or
after publication date: (1) The rate for
the exporter/producer combinations
listed in the chart above will be the rate
we have determined in this preliminary
determination; (2) for all PRC exporters
of merchandise subject to this
investigation that have not received
their own rate, the cash-deposit rate will
be the PRC-wide rate; (3) for all nonPRC exporters of merchandise subject to
this investigation that have not received
their own rate, the cash-deposit rate will
be the rate applicable to the PRC
exporter/producer combination that
supplied that non-PRC exporter. These
suspension-of-liquidation instructions
will remain in effect until further notice.
We will instruct CBP to require a cash
deposit or the posting of a bond equal
to the weighted-average amount by
which the NV exceeds U.S. price, as
indicated above. The 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 less than fair value. 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 phosphate salts, or
sales (or the likelihood of sales) for
importation, of the merchandise under
investigation within 45 days of our final
determination.
for Import Administration no later than
30 days after the date of publication of
this preliminary determination. See 19
CFR 351.309(c)(1)(i). Rebuttal briefs, the
content of which is limited to the issues
raised in the case briefs, must be filed
within five days after the deadline for
the submission of case briefs. See 19
CFR 351.309(d). A 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.
In accordance with section 774 of the
Act, and if requested, we will hold a
public hearing, to afford interested
parties an opportunity to comment on
arguments raised in case or rebuttal
briefs. If a request for a hearing is made,
we intend to hold the hearing shortly
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.
Parties should confirm by telephone the
date, time, and location of the hearing
two days before the scheduled date.
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. At the hearing,
each party may make an affirmative
presentation only on issues raised in
that party’s case brief and may make
rebuttal presentations only on
arguments included in that party’s
rebuttal brief. This determination is
issued and published in accordance
with sections 733(f) and 777(i)(1) of the
Act.
Dated: March 10, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–5715 Filed 3–15–10; 8:45 am]
BILLING CODE 3510–DS–P
Public Comment
Case briefs or other written comments
on the preliminary determination may
be submitted to the Assistant Secretary
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DEPARTMENT OF COMMERCE
International Trade Administration
[A–351–825]
Stainless Steel Bar From Brazil:
Preliminary Results of Antidumping
Duty Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) is conducting an
administrative review of the
antidumping duty order on certain
stainless steel bar from Brazil. The
review covers one producer/exporter of
the subject merchandise, Villares Metals
S.A. (VMSA). The period of review
(POR) is February 1, 2008, through
January 31, 2009.
The Department has preliminarily
determined that VMSA made U.S. sales
at prices less than normal value. If these
preliminary results are adopted in our
final results of administrative review,
we will instruct U.S. Customs and
Border Protection (CBP) to assess
antidumping duties on all appropriate
entries. Interested parties are invited to
comment on these preliminary results of
review. We intend to issue the final
results of review no later than 120 days
from the publication date of this notice.
EFFECTIVE DATE: March 16, 2010.
FOR FURTHER INFORMATION CONTACT:
Catherine Cartsos or Minoo Hatten, AD/
CVD Operations, Office 5, Import
Administration, International Trade
Administration, U.S.Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230,
telephone: (202) 482–1757 or (202) 482–
1690, respectively.
SUPPLEMENTARY INFORMATION:
Background
On February 21, 1995, the Department
published in the Federal Register an
antidumping duty order on certain
stainless steel bar from Brazil. See
Antidumping Duty Orders: Stainless
Steel Bar from Brazil, India and Japan,
60 FR 9661 (February 21, 1995). On
February 4, 2009, the Department
published in the Federal Register a
notice of ‘‘Opportunity to Request
Administrative Review’’ of the order.
See Antidumping or Countervailing
Duty Order, Finding, or Suspended
Investigation; Opportunity To Request
Administrative Review, 74 FR 6013
(February 4, 2009).
In accordance with 19 CFR
351.213(b)(2), on March 2, 2009, VMSA
requested that the Department conduct
an administrative review of its sales and
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[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Notices]
[Pages 12508-12514]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-5715]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-962]
Certain Potassium Phosphate Salts From the People's Republic of
China: Preliminary Determination of Sales at Less Than Fair Value
AGENCY: Import Administration, International Trade Administration,
Department of Commerce
DATES: Effective Date: March 16, 2010.
SUMMARY: The Department of Commerce (``the Department'') preliminarily
determines that certain potassium phosphate salts (``salts'') from the
People's Republic of China (``PRC'') are being, or are likely to be,
sold in the United States at less than fair value (``LTFV''), as
provided in section 733 of the Tariff Act of 1930, as amended
(``Act''), for the period of investigation (``POI''), January 1, 2009,
through June 30, 2009. The estimated margins of sales at LTFV are shown
in the ``Preliminary Determination'' section of this notice. Interested
parties are invited to comment on this preliminary determination.
FOR FURTHER INFORMATION CONTACT: Irene Gorelik or Katie Marksberry, AD/
CVD Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington DC 20230; telephone: (202) 482-
6905 or (202) 482-7906, respectively.
SUPPLEMENTARY INFORMATION:
Initiation
On September 24, 2009, the Department received an antidumping duty
petition concerning imports of salts from the PRC filed in proper form
by Performance Products LP (``ICL'') and Prayon, Inc. (collectively,
``Petitioners'').\1\ The Department initiated this investigation on
October 14, 2009.\2\
---------------------------------------------------------------------------
\1\ See Petition for the Imposition of Antidumping and
Countervailing Duties on Imports of Certain Sodium and Potassium
Phosphate Salts from the People's Republic of China, dated September
24, 2009 (``Petition'').
\2\ See Certain Sodium and Potassium Phosphate Salts from the
People's Republic of China: Initiation of Antidumping Duty
Investigation, 74 FR 54024 (October 21, 2009), (``Initiation
Notice'').
---------------------------------------------------------------------------
On November 17, 2009, the United States International Trade
Commission (``ITC'') issued an affirmative preliminary determination
that there is a reasonable indication that an industry in the United
States is threatened with material injury by reason of imports from the
PRC of dipotassium phosphate (``DKP''), monopotassium phosphate
(``MKP''), and tetrapotassium pyrophosphate (``TKP''). Also on November
17, 2009, the ITC issued a negative preliminary determination with
respect to sodium tripolyphosphate (``STPP'') stating that there is no
reasonable indication that an industry producing STPP is materially
injured or threatened with material injury by reason of imports from
the PRC.\3\ The ITC's determination was
[[Page 12509]]
published in the Federal Register on November 23, 2009.\4\
---------------------------------------------------------------------------
\3\ Please note that after the Initiation Notice was published
the ITC made a negative determination with respect to Sodium
Tripolyphosphate, the only sodium phosphate salt included in the
scope of the investigation. The Department subsequently issued a
memo stating that the official name of this investigation is now
Certain Potassium Phosphate Salts from the People's Republic of
China. See Memorandum to the File, from Katie Marksberry,
International Trade Compliance Analyst, regarding Certain Potassium
Phosphate Salts from the People's Republic of China, dated November
12, 2009.
\4\ See Investigation Nos. 701-TA-473 and 731-TA-1173
(Preliminary) Certain Sodium and Potassium Phosphate Salts From
China, 74 FR 61173 (November 23, 2009).
---------------------------------------------------------------------------
Scope Comments
In accordance with the preamble to our regulations, we set aside a
period of time for parties to raise issues regarding product coverage
and encouraged all parties to submit comments within 20 calendar days
of publication of the Initiation Notice.\5\ We did not receive any
scope comments.
---------------------------------------------------------------------------
\5\ See Antidumping Duties; Countervailing Duties; Final Rule,
62 FR 27296, 27323 (May 19, 1997). See also Initiation Notice, 74 FR
at 54024.
---------------------------------------------------------------------------
Period of Investigation
The POI is January 1, 2009, through June 30, 2009. This period
corresponds to the two most recent fiscal quarters prior to the month
of the filing of the petition.\6\
---------------------------------------------------------------------------
\6\ See 19 CFR 351.204(b)(1).
---------------------------------------------------------------------------
Respondent Selection
In the Initiation Notice, the Department stated that it intended to
select respondents based on quantity and value (``Q&V'')
questionnaires.\7\ On October 15, 2009, the Department requested Q&V
information from the 60 companies that Petitioners identified as
potential exporters or producers of salt from the PRC.\8\ Additionally,
the Department also posted the Q&V questionnaire for this investigation
on its Web site at https://ia.ita.doc.gov/ia-highlights-and-news.html.
The Department received timely Q&V responses from eleven exporters/
producers that shipped merchandise under investigation to the United
States during the POI.
---------------------------------------------------------------------------
\7\ See Initiation Notice, 74 FR at 54027.
\8\ See Petition at Vol. 2., Exhibit General-12.
---------------------------------------------------------------------------
On November 13, 2009, the Department selected SD BNI(LYG) Co. Ltd.
(``SD BNI''), and SiChuan Blue Sword Import & Export Co., Ltd.
(``SiChuan Blue Sword''), as mandatory respondents in this
investigation.\9\ The Department sent its antidumping duty
questionnaire to SD BNI and SiChuan Blue Sword on November 16, 2009. On
December 7, 2009, SiChuan Blue Sword, filed a letter stating that it
would not participate as a mandatory respondent in this
investigation.\10\
---------------------------------------------------------------------------
\9\ See Memorandum to James C. Doyle, Director, Office IX, from
Katie Marksberry, Case Analyst, through Catherine Bertrand, Program
Manager, Office IX; regarding Antidumping Duty Investigation of
Certain Potassium Phosphate Salts from the People's Republic of
China, dated November 13, 2009 (``Respondent Selection Memo'').
\10\ See December 7, 2009, Letter to the Department from SiChuan
Blue Sword Import & Export Co., Ltd.
---------------------------------------------------------------------------
On December 18, 2009, the Department determined that because it was
still early enough in the investigation and because there were no
requests for voluntary respondent treatment,\11\ the Department would
select the next largest producer/exporter of certain potassium
phosphate salts as a mandatory respondent. Therefore the Department
selected Wenda as a mandatory respondent after an analysis of the Q&V
responses showed it to be the next largest producer/exporter.\12\ On
December 18, 2009, the Department sent Wenda the antidumping duty
questionnaire, and on January 8, 2010, Wenda filed its Section A
response. In its Section A response, Wenda corrected its Q&V data which
was used as the basis of respondent selection.\13\ Because the Q&V
information changed substantially between Wenda's original Q&V
submission and its Section A response, on February 4, 2010, the
Department discontinued Wenda's status as a mandatory respondent and
stated that we would continue to consider its request for separate rate
status.\14\ On February 5, 2010, the Department received comments from
Wenda regarding the Department's decision to discontinue its status as
a mandatory respondent. On February 16, 2010, Petitioners filed
rebuttal comments in response to Wenda's February 5, 2010, comments,
and on February 18, 2010, Wenda submitted additional comments in
response to the Petitioners' most recent comments.
---------------------------------------------------------------------------
\11\ We note that Wenda Co., Ltd. (``Wenda'') filed a request
for Voluntary Respondent Treatment on October 15, 2009, and withdrew
its request on November 13, 2009. See letter to the Department from
Wenda; regarding Sodium and Potassium Phosphate Salts from the
People's Republic of China, Antidumping Duty Investigation; Request
for Voluntary Respondent Treatment, dated October 15, 2009
(``Wenda's Voluntary Request Memo''); see also letter to the
Department from Wenda; regarding Sodium and Potassium Phosphate
Salts from the People's Republic of China, Antidumping Duty
Investigation; Withdrawal of Request for Voluntary Respondent
Treatment, dated November 13, 2009 (``Wenda's Voluntary Withdrawal
Memo'').
\12\ See Memorandum to James C. Doyle, Director, Office IX, from
Katie Marksberry, Case Analyst, through Catherine Bertrand, Program
Manager, Office IX; regarding Antidumping Duty Investigation of
Certain Potassium Phosphate Salts from the People's Republic of
China: Selection of Additional Mandatory Respondent, dated December
18, 2009 (``Additional Respondent Selection Memo'').
\13\ See Respondent Selection Memo.
\14\ See Memorandum to James C. Doyle, Director, Office IX, from
Catherine Bertrand, Program Manager, Office IX; Antidumping Duty
Investigation of Certain Potassium Phosphate Salts from the People's
Republic of China: Discontinuation of Mandatory Respondent Status
for Wenda Co. Ltd., dated February 4, 2010. (``Wenda Deselection
Memo'').
---------------------------------------------------------------------------
Additional Case Background
We received a Section A response on December 7, 2009, from SD
BNI.\15\ On December 22, 2009, we received an improperly filed Section
C response from SD BNI. The deadline for the Section D response was
also December 22, 2009, but no response was filed. We sent a letter to
SD BNI on December 28, 2009, stating that its Section C response was
not properly filed and its Section D response was not filed at all by
the deadline, and we provided another week, until January 4, 2010, for
SD BNI to re-file its Section C response and to file its Section D
response.\16\ On January 6, 2010, the Department received an improperly
filed letter from SD BNI asking for more information as to the reason
its Section C response was not properly filed and asking for an
extension to submit its Section C and D responses. In its January 6,
2010, response SD BNI also asked whether the Department would accept
current, post-POI production information to respond to the Department's
NME questionnaires.\17\ On January 7, 2010, the Department granted SD
BNI a third opportunity to submit its Section C response and detailed
how to properly file documents--per the Department's regulations. The
Department also informed SD BNI that it must report the POI production
and could not base Section D on its own post-POI production. The
deadline to submit these responses was January 19, 2010.\18\ On January
20, 2010, the Department received a Section D response from SD BNI,
which did not fully respond to all of the Department's concerns.\19\ SD
BNI failed to submit a Section C response by this due date.
---------------------------------------------------------------------------
\15\ See Letter from SD BNI to the Department; regarding Certain
Potassium Phosphate Salts from China (A-570-962): Section A
Questionnaire Response, dated December 7, 2009.
\16\ See Letter to SD BNI (LYG) Co., Ltd. from the Department;
regarding Certain Potassium Phosphate Salts from the People's
Republic of China, dated December 28, 2009.
\17\ See Memorandum to the File; from Katie Marksberry,
International Trade Compliance Analyst; regarding Certain Potassium
Phosphate Salts from the People's Republic of China: SD BNI (LYG)
Co., Ltd. Letter, dated January 11, 2010 (placing SD BNI's
improperly filed January 6, 2010, letter on the official record of
the investigation.)
\18\ See Letter to SD BNI (LYG) Co., Ltd. from the Department;
regarding Certain Potassium Phosphate Salts from the People's
Republic of China, dated January 7, 2010.
\19\ See Letter from SD BNI to the Department; regarding Certain
Potassium Phosphate Salts from China (A-570-962): Section D
Questionnaire Response, dated January 20, 2010.
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[[Page 12510]]
Separate Rate Applications
On November 30, 2009, we received a timely filed joint separate
rate application from Chengdu Long Tai Biotechnology Co., Ltd. and
Snow-Apple Group Limted. On December 22, 2009, we received timely filed
separate rate applications from Wenda, Yunnan Newswift Company Ltd.,
and Tianjin Chengyi International Trading Co., Ltd. See the ``Separate
Rates'' section below for further discussion on the eligibility for a
separate rate. On February 3, 2010, the Department issued Wenda a
supplemental questionnaire requesting additional information.
Additionally, on February 18, 2010, the Department issued Chengdu Long
Tai Biotechnology Co., Ltd. and Snow-Apple Group Limited a supplemental
questionnaire requiring that each company submit an individual
application. Additionally, on February 18, 2010, the Department issued
Newswift Company Ltd. a supplemental questionnaire requesting
additional information. Wenda, Yunnan Newswift Company Ltd., and Snow-
Apple Group Limited submitted timely responses to these questionnaires.
Chengdu Long Tai did not submit an individual separate rate
application.
Product Characteristics and Questionnaires
In the Initiation Notice, the Department asked all parties in this
investigation for comments on the appropriate product characteristics
for defining individual products. We did not receive comments from
interested parties on product characteristics.
Surrogate Country Comments
On January 7, 2010, the Department determined that India, the
Philippines, Indonesia, Thailand, Ukraine, and Peru, are countries
comparable to the PRC in terms of economic development.\20\
---------------------------------------------------------------------------
\20\ See January 8, 2010, Letter to All Interested Parties,
regarding Antidumping Duty Investigation of Certain Potassium
Phosphate Salts from the People's Republic of China: Surrogate
Country List, attaching January 7, 2010, Memorandum to Catherine
Bertrand, Program Manager, Office 9, AD/CVD Operations, from Kelly
Parkhill, Acting Director, Office for Policy, regarding Request for
List of Surrogate Countries for an Antidumping Duty Investigation of
Certain Potassium Phosphate Salts from the People's Republic of
China (``Surrogate Country List'').
---------------------------------------------------------------------------
On January 8, 2010, the Department requested comments on surrogate
country selection from the interested parties in this investigation. On
January 29, 2010, Petitioners submitted surrogate country comments. No
other interested parties commented on the selection of a surrogate
country.
Scope of Investigation
The phosphate salts covered by this investigation include anhydrous
Monopotassium Phosphate (MKP), anhydrous Dipotassium Phosphate (DKP)
and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in
solution (collectively ``phosphate salts'').
TKPP, also known as normal potassium pyrophosphate, Diphosphoric
acid or Tetrapotassium salt, is a potassium salt with the formula
K4P2O7. The CAS registry number for
TKPP is 7320-34-5. TKPP is typically 18.7% phosphorus and 47.3%
potassium. It is generally greater than or equal to 43.0%
P2O5 content. TKPP is classified under heading
2835.39.1000, HTSUS.
MKP, also known as Potassium dihydrogen phosphate, KDP, or
Monobasic potassium phosphate, is a potassium salt with the formula
KH2PO4. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7% phosphorus, 28.7% potassium and 52%
P2O5. MKP is classified under heading
2835.24.0000, HTSUS.
DKP, also known as Dipotassium salt, Dipotassium hydrogen
orthophosphate or Potassium phosphate, dibasic, has a chemical formula
of K2HPO4. The CAS registry number for DKP is
7758-11-4. DKP is typically 17.8% phosphorus, 44.8% potassium and 40%
P2O5 content. DKP is classified under heading
2835.24.0000, HTSUS.
The products covered by this investigation include the foregoing
phosphate salts in all grades, whether food grade or technical grade.
The product covered by this investigation includes anhydrous MKP and
DKP without regard to the physical form, whether crushed, granule,
powder or fines. Also covered are all forms of TKPP, whether crushed,
granule, powder, fines or solution.
For purposes of the investigation, the narrative description is
dispositive, not the tariff heading, American Chemical Society, CAS
registry number or CAS name, or the specific percentage chemical
composition identified above.
Non-Market Economy Country
For purposes of initiation, Petitioners submitted LTFV analyses for
the PRC as a non-market economy (``NME'').\21\ The Department considers
the PRC to be a NME country.\22\ In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority. No party has challenged the designation of the
PRC as an NME country in this investigation. Therefore, we continue to
treat the PRC as an NME country for purposes of this preliminary
determination and calculated normal value in accordance with section
773(c) of the Act, which applies to all NME countries.
---------------------------------------------------------------------------
\21\ See Initiation Notice, 74 FR 29665 (June 23, 2009).
\22\ See Preliminary Determination of Sales at Less Than Fair
Value and Postponement of Final Determination: Coated Free Sheet
Paper from the People's Republic of China, 72 FR 30758, 30760 (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) (``CFS Paper'').
---------------------------------------------------------------------------
Wenda's Status in This Investigation
As stated above in the ``Respondent Selection'' section, on
February 4, 2010, the Department discontinued Wenda's status as a
mandatory respondent in this investigation. On February 5, 2010, the
Department received comments from Wenda requesting that we reconsider
the decision to deselect Wenda as a mandatory respondent, or to allow
Wenda to participate as a voluntary respondent. Wenda argued the
Department has the resources to investigate two respondents and that it
had already cooperated with the Department in submitting its
questionnaire responses. Additionally, Wenda argued that the Department
is risking having no calculated margins by deselecting Wenda, that the
Court of International Trade (``CIT'') has recently determined that we
are not selecting an adequate number of respondents, and that allowing
Wenda to participate as a voluntary respondent would not impede the
Department's investigation.
On February 16, 2010, the Department received comments from
Petitioners rebutting Wenda's February 5, 2010 comments. They stated
that we should not reconsider our decision to deselect Wenda because
Wenda was not deselected based on the Department's resources, but
rather based on Wenda's conduct during the investigation. Furthermore,
Petitioners raised further questions about Wenda's Section A reported
Q&V, and stated that Wenda withdrew its request to be a voluntary
respondent. Petitioners argued that both of these are reason to deny
Wenda's request for reconsideration.
The Department continues to find that the determination made in the
February 4, 2010, memorandum discontinuing Wenda's status as a
mandatory respondent was appropriate. The Department did not deselect
Wenda based on resource constraints, but rather because Wenda's Section
A Q&V
[[Page 12511]]
information was significantly different from the information provided
by Wenda in its Q&V questionnaire response. The Department determined
that it would be inappropriate to continue to individually investigate
Wenda as a mandatory respondent because the corrected Q&V information
indicates that Wenda is actually one of the smallest companies by
volume.\23\ In other words, the Department selected Wenda as a
mandatory respondent on the basis of information later shown to be
significantly incorrect. The Department's procedures and timetables
rely on the record data provided by interested parties, and when this
data is shown to be false, other, larger, potential respondents are
effectively prohibited from participation because of statutory
deadlines. Thus, it would be inappropriate to review Wenda now that it
is clear that the information upon which the Department based its
decision to select Wenda as a mandatory respondent was incorrect.
---------------------------------------------------------------------------
\23\ See Wenda Deselection Memo at 2.
---------------------------------------------------------------------------
Additionally, the Department notes that Wenda does not have a
request for voluntary treatment on the record of the investigation
because its original request was withdrawn.\24\ Furthermore, voluntary
respondents are required to complete responses to the Department's NME
questionnaire on the due dates for the original mandatory respondents,
but Wenda did not do this.
---------------------------------------------------------------------------
\24\ See Wenda's Voluntary Request Memo; see also Wenda's
Voluntary Withdrawal Memo.
---------------------------------------------------------------------------
Separate Rates
In proceedings involving NME countries, there is a rebuttable
presumption that all companies within the country are subject to
government control and thus should be assessed a single antidumping
duty rate.\25\ 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.\26\
---------------------------------------------------------------------------
\25\ See 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, 55040 (September 24, 2008) (``PET Film
LTFV Final'').
\26\ See Final Determination of Sales at Less Than Fair Value:
Sparklers From the People's Republic of China, 56 FR 20588 (May 6,
1991) (``Sparklers''); see also Notice of Final Determination of
Sales at Less Than Fair Value: Silicon Carbide From the People's
Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide''),
and Sec. 351.107(d) of the Department's regulations.
---------------------------------------------------------------------------
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.\27\ The process requires
exporters and producers to submit a separate-rate status application.
The Department's practice is discussed further in 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.\28\
---------------------------------------------------------------------------
\27\ See Initiation Notice, 74 FR 29665.
\28\ The Policy Bulletin 05.1 states: {w{time} hile continuing
the practice of assigning separate rates only to exporters, all
separate rates that the Department will now assign in its NME
investigations will be specific to those producers that supplied the
exporter during the period of investigation. Note, however, that one
rate is calculated for the exporter and all of the producers which
supplied subject merchandise to it during the period of
investigation. This practice applies both to mandatory respondents
receiving an individually calculated separate rate as well as the
pool of non-investigated firms receiving the weighted-average of the
individually calculated rates. This practice is referred to as the
application of ``combination rates'' because such rates apply to
specific combinations of exporters and one or more producers. The
cash-deposit rate assigned to an exporter will apply only to
merchandise both exported by the firm in question and produced by a
firm that supplied the exporter during the period of
investigation.'' See Policy Bulletin 05.1 at 6.
---------------------------------------------------------------------------
Yunnan Newswift, Tianjin Chengyi, Snow-Apple, and Wenda
(hereinafter referred to as ``Separate Rate Companies''), have provided
company-specific information to demonstrate that they operate
independently of de jure and de facto government control or are wholly
foreign owned, and therefore satisfy the standards for the assignment
of a separate rate. For each of the Separate Rate Companies we are
granting the separate rate only to the name of the company that appears
on the English translated copy of the business license in each
company's SRA.\29\
---------------------------------------------------------------------------
\29\ See Certain Frozen Warmwater Shrimp from the Socialist
Republic of Vietnam: Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 74 FR 47191 (September 15,
2009); and accompanying Issues and Decision Memorandum at Comment
17.
---------------------------------------------------------------------------
We have considered whether each PRC company that submitted a
complete application or complete Section A Response as a mandatory
respondent, is eligible for a separate rate. The Department's separate
rate test is not concerned, in general, with macroeconomic/border-type
controls, e.g., export licenses, quotas, and minimum export prices,
particularly if these controls are imposed to prevent dumping.\30\ The
test focuses, rather, on controls over the investment, pricing, and
output decision-making process at the individual firm level.\31\
---------------------------------------------------------------------------
\30\ See Notice of Final Determination of Sales at Less Than
Fair Value: Certain Preserved Mushrooms from the People's Republic
of China, 63 FR 72255, 72256 (December 31, 1998).
\31\ See Notice of Final Determination of Sales at Less than
Fair: Value Certain Cut-to-Length Carbon Steel Plate from Ukraine,
62 FR 61754, 61758 (November 19, 1997), and Tapered Roller Bearings
and Parts Thereof, Finished and Unfinished, from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 62 FR 61276, 61279 (November 17, 1997).
---------------------------------------------------------------------------
To establish whether a firm is sufficiently independent from
government control of its export activities to be entitled to a
separate rate, the Department analyzes each entity exporting the
merchandise under investigation under a test arising from the
Sparklers, as further developed in Silicon Carbide.\32\ In accordance
with the separate rate criteria, the Department assigns separate rates
in NME cases only if respondents can demonstrate the absence of both de
jure and de facto governmental control over export activities.
---------------------------------------------------------------------------
\32\ See Final Determination of Sales at Less Than Fair Value:
Sparklers From the People's Republic of China, 56 FR 20588 (May 6,
1991) (``Sparklers''); see also Notice of Final Determination of
Sales at Less Than Fair Value: Silicon Carbide From the People's
Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide'').
---------------------------------------------------------------------------
1. 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.\33\
---------------------------------------------------------------------------
\33\ See Sparklers, 56 FR at 20589.
---------------------------------------------------------------------------
The evidence provided by the Separate Rate Companies supports a
preliminary finding of de jure absence of governmental control based on
the following: (1) An absence of restrictive stipulations associated
with the individual exporter's business and export licenses; (2) the
applicable legislative enactments decentralizing control of the
companies; and (3) any other formal measures by the government
decentralizing control of companies. See, e.g., Yunnan Newswift's
December 22, 2009, SRA at 6-8; and Tianjin Chengyi's SRA at 6-9.
2. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto governmental control of
its export functions: (1) Whether the export prices are set by or are
subject to the approval of a governmental agency; (2) whether the
respondent has authority to
[[Page 12512]]
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.\34\
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 governmental control which would preclude the Department from
assigning separate rates.
---------------------------------------------------------------------------
\34\ 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).
---------------------------------------------------------------------------
We determine that, for the Separate Rate Companies, the evidence on
the record supports a preliminary finding of de facto absence of
governmental control based on record statements and supporting
documentation showing the following: (1) Each exporter sets its own
export prices independent of the government and without the approval of
a government authority; (2) each exporter retains the proceeds from its
sales and makes independent decisions regarding disposition of profits
or financing of losses; (3) each exporter has the authority to
negotiate and sign contracts and other agreements; and (4) each
exporter has autonomy from the government regarding the selection of
management. See, e.g., Yunnan Newswift's December 22, 2009, SRA at 9-
15; and Tianjin Chengyi's SRA at 9-14.
3. Wholly Foreign-Owned
In their separate-rate applications, two separate rate companies,
Wenda and Snow-Apple, reported that they were wholly owned by
individuals or companies located in a market economy country during the
POI.\35\ Therefore, because they reported being wholly foreign-owned
during the POI, and we have no evidence indicating that they were under
the control of the PRC, a separate rate analysis is not necessary to
determine whether these companies are independent from government
control.\36\ Accordingly, we have preliminarily granted a separate rate
to these companies.
---------------------------------------------------------------------------
\35\ See Wenda's December 22, 2009, SRA at 7; see also Snow-
Apple's February 24, 2010, SRA at 6.
\36\ See Notice of Final Determination of Sales at Less Than
Fair Value: Creatine Monohydrate From the People's Republic of
China, 64 FR 71104-71105 (December 20, 1999) (where the respondent
was wholly foreign-owned, and thus, qualified for a separate rate).
---------------------------------------------------------------------------
The evidence placed on the record of this investigation by the
Separate Rate Companies, demonstrates an absence of de jure and de
facto government control with respect to each of the exporter's exports
of the merchandise under investigation, in accordance with the criteria
identified in Sparklers and Silicon Carbide. As a result, we have
granted the Separate Rate Companies a margin based on the Petition
margins.
Application of Adverse Facts Available, the PRC-Wide Entity and PRC-
Wide Rate
The Department has data that indicate there were more exporters of
salts from the PRC than those indicated in the response to our request
for Q&V information during the POI. See Respondent Selection
Memorandum. We issued our request for Q&V information to sixty
potential Chinese exporters of the merchandise under investigation, in
addition to posting the Q&V questionnaire on the Department's Web site.
While information on the record of this investigation indicates that
there are other exporters/producers of salts in the PRC, we received
only eleven 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.
Furthermore, Sichuan Blue Sword, which responded to the
Department's Q&V questionnaire and reported shipments during the POI,
and was chosen by the Department as a mandatory respondent, did not
respond to the Department's full antidumping duty questionnaire.
Therefore, the Department has preliminarily determined that there were
exporters/producers of the merchandise under investigation during the
POI from the PRC that did not respond to the Department's request for
information. We have treated these PRC exporters/producers, including
Sichuan Blue Sword, as part of the PRC-wide entity because they did not
qualify for a separate rate.\37\
---------------------------------------------------------------------------
\37\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value, Postponement of Final Determination, and Preliminary
Partial Determination of Critical Circumstances: Diamond Sawblades
and Parts Thereof From the People's Republic of China, 70 FR 77121,
77128 (December 29, 2005), unchanged in Final Determination of Sales
at Less Than Fair Value and Final Partial Affirmative Determination
of Critical Circumstances: Diamond Sawblades and Parts Thereof from
the People's Republic of China, 71 FR 29303 (May 22, 2006).
---------------------------------------------------------------------------
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 or the Department's
request for more 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.\38\
---------------------------------------------------------------------------
\38\ See Notice of 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 Notice of 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.\39\ 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.
---------------------------------------------------------------------------
\39\ 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).
---------------------------------------------------------------------------
When employing an adverse inference, section 776 of the Act
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 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
[[Page 12513]]
petition, or (b) the highest calculated rate of any respondent in the
investigation.\40\ As AFA, we have preliminarily assigned to the PRC-
wide entity a rate of 95.40 percent, which is the highest margin
alleged in the Petition.\41\ The Department preliminarily determines
that this information is the most appropriate from the available
sources to effectuate the purposes of AFA.
---------------------------------------------------------------------------
\40\ 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 21, 2000) and accompanying
Issues and Decision Memorandum at Comment 1.
\41\ The Department notes that in determining the AFA margin,
the Department did not take into account the margins listed in the
petition for STPP.
---------------------------------------------------------------------------
Application of Adverse Facts Available for SD BNI
As detailed above in the ``Additional Case Background'' Section,
despite numerous attempts by the Department to provide additional
instruction and three additional opportunites for SD BNI to file a
Section C response, there is not a Section C response on the record of
the investigation. Therefore, pursuant to sections 776(a)(2)(A), (B),
and (C) of the Act, we are applying facts otherwise available to SD BNI
because the Department finds that the information necessary to
calculate an accurate and otherwise reliable margin is not available on
the record with respect to SD BNI. Additionally, the Department finds
that SD BNI failed to provide the information requested by the
Department in a timely manner and in the form required, and
significantly impeded the Department's ability to calculate an accurate
margin for SD BNI. The Department is unable to calculate a margin
without a Section C response, requiring the application of facts
otherwise available to SD BNI for the purpose of this preliminary
determination.
In addition, in accordance with section 776(b) of the Act, the
Department is applying an adverse inference in selecting the facts
available rate as it has determined that SD BNI did not act to the best
of its ability to cooperate with the Department and significantly
impeded this investigation by not submitting a properly filed Section C
response after the Department provided three opportunities for SD BNI
to do so. Therefore, because SD BNI was selected as a mandatory
respondent and failed to submit the information required, SD BNI will
not receive a separate rate and will remain part of the PRC-wide
entity.
Corroboration
Section 776(c) of the Act provides that, when the Department relies
on secondary information in using the facts otherwise available, it
must, to the extent practicable, corroborate that information from
independent sources that are reasonably at its disposal. We have
interpreted ``corroborate'' to mean that we will examine the
reliability and relevance of the information submitted.\42\ Because
there are no margins calculated for the mandatory respondents, to
corroborate the 95.40 percent margin used as AFA for the China-wide
entity, to the extent appropriate information was available, we are
affirming our pre-initiation analysis of the adequacy and accuracy of
the information in the petition.\43\ During our pre-initiation
analysis, we examined evidence supporting the calculations in the
petition and the supplemental information provided by Petitioner prior
to initiation to determine the probative value of the margins alleged
in the petition. During our pre-initiation analysis, we examined the
information used as the basis of export price and normal value (``NV'')
in the petition, and the calculations used to derive the alleged
margins. Also during our pre-initiation analysis, we examined
information from various independent sources provided either in the
petition or, based on our requests, in supplements to the petition,
which corroborated key elements of the export price and NV
calculations.\44\ We received no comments as to the relevance or
probative value of this information. Therefore, the Department finds
that the rates derived from the petition and used for purposes of
initiation have probative value for the purpose of being selected as
the AFA rate assigned to the PRC-wide entity.
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\42\ See, e.g. Certain Cold-Rolled Flat-Rolled Carbon-Quality
Steel Products From Brazil: Notice of Final Determination of Sales
at Less Than Fair Value, 65 FR 5554, 5568 (February 4, 2000).
\43\ See Antidumping Investigation Initiation Checklist: Certain
Sodium and Potassium Phosphate Salts (``Initiation Checklist'').
\44\ See id.
---------------------------------------------------------------------------
Margin for the Separate Rate Companies
The Department received timely and complete separate rate
applications from the Separate Rate Companies. The evidence placed on
the record of this investigation by the Separate Rate Companies
demonstrates an absence of de jure and de facto government control with
respect to each of the exporter's exports of the merchandise under
investigation, in accordance with the criteria identified in Sparklers
and Silicon Carbide. As a result, for the purposes of this preliminary
determination, we have granted the Separate Rate Companies an anti-
dumping duty margin based on an average of the rates submitted in the
Petition.\45\ This rate is 64.55 percent.
---------------------------------------------------------------------------
\45\ The Department notes that in calculating the average
margin, the Department did not take into account the margins listed
in the petition for STPP.
---------------------------------------------------------------------------
Combination Rates
In the Initiation Notice, the Department stated that it would
calculate combination rates for certain respondents that are eligible
for a separate rate in this investigation. See Initiation Notice, 74 FR
at 54024. This practice is described in Policy Bulletin 05.1, available
at https://ia.ita.doc.gov/.
Preliminary Determination
The preliminary weighted-average dumping margins are as follows:
------------------------------------------------------------------------
Weighted-
Exporter Supplier average margin
------------------------------------------------------------------------
Snow-Apple Group Limited.......... Chengdu Long Tai 69.58
Biotechnology Co.,
Ltd.
Tianjin Chengyi International Zhenjiang Dantu 69.58
Trading (Tianjin) Co., Limited. Guangming Auxiliary
Material Factory.
Tianjin Chengyi International Sichuan Shifang 69.58
Trading (Tianjin) Co., Limited. Hongsheng Chemicals
Co., Ltd.
Wenda Co., Ltd.................... Thermphos (China) 69.58
Food Additive Co.,
Ltd.
Yunnan Newswift Company Ltd....... Guangxi Yizhou 69.58
Yisheng Fine
Chemicals Co., Ltd.
Yunnan Newswift Company Ltd....... Mainzhu Hanwang 69.58
Mineral Salt
Chemical Co., Ltd.
Yunnan Newswift Company Ltd....... Sichuan Shengfeng 69.58
Phosphate Chemical
Co., Ltd.
PRC-Wide **....................... .................... 95.40
------------------------------------------------------------------------
** In this case, the PRC-wide rate includes Sichuan Blue Sword Import
and Export Co., Ltd. and SD BNI(LYG) Co. Ltd.
[[Page 12514]]
Disclosure
We will disclose the calculations performed within five days of the
date of publication of this notice to parties in this proceeding in
accordance with 19 CFR 351.224(b).
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. For the exporter/producer combinations listed in the chart
above, the following cash deposit requirements will be effective upon
publication of the preliminary determination for all shipments of
merchandise under consideration entered or withdrawn from warehouse,
for consumption on or after publication date: (1) The rate for the
exporter/producer combinations listed in the chart above will be the
rate we have determined in this preliminary determination; (2) for all
PRC exporters of merchandise subject to this investigation that have
not received their own rate, the cash-deposit rate will be the PRC-wide
rate; (3) for all non-PRC exporters of merchandise subject to this
investigation that have not received their own rate, the cash-deposit
rate will be the rate applicable to the PRC exporter/producer
combination that supplied that non-PRC exporter. These suspension-of-
liquidation instructions will remain in effect until further notice. We
will instruct CBP to require a cash deposit or the posting of a bond
equal to the weighted-average amount by which the NV exceeds U.S.
price, as indicated above. The 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 less than
fair value. 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 phosphate salts, or sales (or the likelihood of
sales) for importation, of the merchandise under investigation within
45 days of our final determination.
Public Comment
Case briefs or other written comments on the preliminary
determination may be submitted to the Assistant Secretary for Import
Administration no later than 30 days after the date of publication of
this preliminary determination. See 19 CFR 351.309(c)(1)(i). Rebuttal
briefs, the content of which is limited to the issues raised in the
case briefs, must be filed within five days after the deadline for the
submission of case briefs. See 19 CFR 351.309(d). A 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.
In accordance with section 774 of the Act, and if requested, we
will hold a public hearing, to afford interested parties an opportunity
to comment on arguments raised in case or rebuttal briefs. If a request
for a hearing is made, we intend to hold the hearing shortly 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. Parties should confirm by
telephone the date, time, and location of the hearing two days before
the scheduled date.
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. At the hearing, each party may make an
affirmative presentation only on issues raised in that party's case
brief and may make rebuttal presentations only on arguments included in
that party's rebuttal brief. This determination is issued and published
in accordance with sections 733(f) and 777(i)(1) of the Act.
Dated: March 10, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-5715 Filed 3-15-10; 8:45 am]
BILLING CODE 3510-DS-P
