First Administrative Review of Sodium Hexametaphosphate from the People's Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review, 19613-19618 [2010-8643]

Download as PDF Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices Preliminary Results of the Review As a result of this review, we preliminarily determine that a dumping margin of 20.92 percent exists for EuroChem for the period July 1, 2008, through June 30, 2009. Disclosure and Public Hearing We will disclose the calculations used in our analysis to parties to this review within five days of the date of publication of this notice. See 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of the publication of this notice in the Federal Register. See 19 CFR 351.310(c). If a hearing is requested, the Department will notify interested parties of the hearing schedule. Interested parties are invited to comment on the preliminary results of this review. Interested parties may submit case briefs within 30 days of the date of publication of this notice. See 19 CFR 351.309(c). Rebuttal briefs, which must be limited to issues raised in the case briefs, may be filed not later than 35 days after the date of publication of this notice. See 19 CFR 351.309(d). Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument with an electronic version included. We intend to issue the final results of this administrative review, including the results of our analysis of issues raised in the case briefs, within 120 days after the date on which the preliminary results are published. See 19 CFR 351.213(h)(1). mstockstill on DSKH9S0YB1PROD with NOTICES Assessment Rates The Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries. In accordance with 19 CFR 351.212, we have calculated an importer/customer– specific assessment rate for these preliminary results of review. We divided total dumping margins for the reviewed sales by the entered value of the single suspended entry for this POR. For detailed explanation of our method for assessing duties, see ‘‘2008–2009 Administrative Review of the Antidumping Duty Order on Solid Urea from Russia – Preliminary Results Analysis Memorandum for EuroChem’’ on file in the CRU of the main Commerce building, room 1117. We will instruct CBP to assess the importer/ customer–specific rate on the suspended entry of subject merchandise made by the importer during the POR. The Department clarified its ‘‘automatic assessment’’ regulation on VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 May 6, 2003. This clarification applies to entries of subject merchandise during the POR produced by EuroChem where EuroChem did not know that its merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries EuroChem–produced merchandise at the all–others rate if there is no rate for the intermediate company(ies) involved in the transaction. For a full discussion of this clarification, see Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). The Department intends to issue assessment instructions directly to CBP 15 days after the date of publication of the final results of this administrative review. Cash–Deposit Requirements The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(1) of the Act: (1) the cash–deposit rate for EuroChem will be the rate established in the final results of this review; (2) for previously reviewed or investigated companies not listed above, the cash–deposit rate will continue to be the company–specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the less–than-fair–value investigation but the manufacturer is, the cash– deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (4) if neither the exporter nor the manufacturer is a firm covered in this review, the cash–deposit rate will be 64.93 percent, the all–others rate established in Urea From the Union of Soviet Socialist Republics; Final Determination of Sales at Less Than Fair Value, 52 FR 19557 (May 26, 1987). These deposit requirements, when imposed, shall remain in effect until further notice. Notification to Importer This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of antidumping duties PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 19613 occurred and the subsequent assessment of double antidumping duties. We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: April 9, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–8644 Filed 4–14–10; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration [A–570–908] First Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review AGENCY: Import Administration, International Trade Administration, Department of Commerce. SUMMARY: The Department of Commerce (‘‘Department’’) is conducting the first administrative review of the antidumping duty order on sodium hexametaphosphate (‘‘sodium hex’’) from the People’s Republic of China (‘‘PRC’’) for the period of review (‘‘POR’’) September 14, 2007, through February 28, 2009. The Department has preliminarily determined that sales have been made below normal value (‘‘NV’’) by the respondent. If these preliminary results are adopted in our final results of this review, the Department will instruct U.S. Customs and Border Protection (‘‘CBP’’) to assess antidumping duties on all appropriate entries of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results. EFFECTIVE DATE: April 15, 2010. FOR FURTHER INFORMATION CONTACT: Paul Walker, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482–0413. SUPPLEMENTARY INFORMATION: Case Timeline On April 27, 2009, the Department published in the Federal Register a notice of initiation of an administrative review of sodium hex from the PRC, covering the POR, for one company, Hubei Xingfa Chemical Group Co., Ltd. (‘‘Xingfa’’). See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for E:\FR\FM\15APN1.SGM 15APN1 19614 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES Revocation in Part, 74 FR 19042 (April 27, 2009) (‘‘Initiation’’). On November 25, 2009, the Department published a notice extending the time period for issuing the preliminary results by 60 days to January 30, 2010. See First Antidumping Duty Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Extension of Time Limit for the Preliminary Results, 74 FR 61656 (November 25, 2009). On February 5, 2010, the Department published a notice extending the time period for issuing the preliminary results by 41 days to March 12, 2010. See First Antidumping Duty Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Extension of Time Limit for the Preliminary Results, 75 FR 5946 (February 5, 2010). As explained in the memorandum from the Deputy Assistant Secretary for Import Administration, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from February 5, through February 12, 2010. See Memorandum to the Record regarding ‘‘Tolling of Administrative Deadlines As a Result of the Government Closure During the Recent Snowstorm,’’ dated February 12, 2010. Thus, all deadlines in this segment of the proceeding have been extended by seven days, and the revised deadline for the preliminary results of this review became March 19, 2010. On March 26, 2010, the Department published a notice extending the time period for issuing the preliminary results by 17 days to April 5, 2010. See First Antidumping Duty Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Extension of Time Limit for the Preliminary Results, 75 FR 14568 (March 26, 2010). Submissions by Interest Parties As noted above, on April 27, 2009, this administrative review was initiated on one company, Hubei Xingfa. On May 4, 2009, the Department issued Hubei Xingfa the antidumping duty questionnaire. From May 26, 2009 to October 28, 2009, Hubei Xingfa submitted responses to the Department’s antidumping duty questionnaires. On July 6, 2009, the Department sent interested parties a letter inviting comments on surrogate country selection and surrogate value data. On November 6, 2009, Hubei Xingfa and the Petitioners1 submitted comments on 1 ICL Performance Products and Innophos, Inc. (collectively, the ‘‘Petitioners’’). VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 surrogate country and information to value factors of production (‘‘FOP’’). Verification Pursuant to 19 CFR 351.307(b)(iv), from November 19–23, 2009, the Department conducted verification of Hubei Xingfa’s questionnaire responses. See Memorandum to the File through Scot T. Fullerton, Program Manager, Office 9, from Paul Walker, Senior Case Analyst, ‘‘First Administrative Review of Sodium Hexametaphospahte from the People’s Republic of China: Verification of Hubei Xingfa Chemical Group Co., Ltd.,’’ dated concurrently with this notice (‘‘Hubei Xingfa Verification Report’’). Scope of the Order The merchandise subject to this review is sodium hexametaphosphate. Sodium hexametaphosphate is a water– soluble polyphosphate glass that consists of a distribution of polyphosphate chain lengths. It is a collection of sodium polyphosphate polymers built on repeating NaPO3 units. SHMP has a P2O5 content from 60 to 71 percent. Alternate names for sodium hexametaphosphate include the following: Calgon; Calgon S; Glassy Sodium Phosphate; Sodium Polyphosphate, Glassy; Metaphosphoric Acid; Sodium Salt; Sodium Acid Metaphosphate; Graham’s Salt; Sodium Hex; Polyphosphoric Acid, Sodium Salt; Glass H; Hexaphos; Sodaphos; Vitrafos; and BAC–N-FOS. Sodium hexametaphosphate is typically sold as a white powder or granule (crushed) and may also be sold in the form of sheets (glass) or as a liquid solution. It is imported under heading 2835.39.5000, HTSUS. It may also be imported as a blend or mixture under heading 3824.90.3900, HTSUS. The American Chemical Society, Chemical Abstract Service (‘‘CAS’’) has assigned the name ‘‘Polyphosphoric Acid, Sodium Salt’’ to SHMP. The CAS registry number is 68915–31–1. However, sodium hexametaphosphate is commonly identified by CAS No. 10124–56–8 in the market. For purposes of the review, the narrative description is dispositive, not the tariff heading, CAS registry number or CAS name. The product covered by this review includes sodium hexametaphosphate in all grades, whether food grade or technical grade. The product covered by this review includes sodium hexametaphosphate without regard to chain length i.e., whether regular or long chain. The product covered by this review includes sodium hexametaphosphate without regard to physical form, whether glass, sheet, PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 crushed, granule, powder, fines, or other form, and whether or not in solution. However, the product covered by this review does not include sodium hexametaphosphate when imported in a blend with other materials in which the sodium hexametaphosphate accounts for less than 50 percent by volume of the finished product. Non–Market Economy (‘‘NME’’) Country Status In every case conducted by the Department involving the PRC, the PRC has been treated as an NME country. In accordance with section 771(18)(C)(i) of the Act, any determination made that a foreign country is an NME country shall remain in effect until revoked by the administering authority. See, e.g., Brake Rotors from the People’s Republic of China: Final Results and Partial Rescission of the 2004/2005 Administrative Review and Notice of Rescission of 2004/2005 New Shipper Review, 71 FR 66304 (November 14, 2006). None of the parties to this proceeding have contested such treatment. Accordingly, the Department calculated NV in accordance with section 773(c) of the Act, which applies to NME countries. Surrogate Country When the Department reviews imports from an NME country and the available information does not permit the Department to determine NV, pursuant to section 773(a) of the Act, then, pursuant to section 773(c)(4) of the Act, the Department bases NV on an NME producer’s FOPs, to the extent possible, in one or more market– economy countries that (1) are at a level of economic development comparable to that of the NME country, and (2) are significant producers of comparable merchandise. The Department determined India, Philippines, Indonesia, Columbia, Thailand, and Peru are countries comparable to the PRC in terms of economic development. See July 6, 2009, Letter to All Interested Parties, regarding ‘‘Antidumping Duty Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China,’’ attaching July 2, 2009, Memorandum to Scot T. Fullerton, Program Manager, Office 9, AD/CVD Operations, from Kelly Parkhill, Acting Director, Office for Policy, regarding ‘‘Request for List of Surrogate Countries for an Administrative Review of the Antidumping Duty Order on Sodium Hexametaphosphate from the People’s Republic of China’’ (‘‘Surrogate Country List’’). E:\FR\FM\15APN1.SGM 15APN1 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES Based on publicly available information placed on the record, the Department determines India to be a reliable source for surrogate values because India is at a comparable level of economic development, pursuant to section 773(c)(4) of the Act, is a significant producer of subject merchandise, and has publicly available and reliable data. Furthermore, all the surrogate values placed on the record by the parties were obtained from sources in India. Accordingly, the Department selected India as the surrogate country for purposes of valuing the FOPs because it meets the Department’s criteria for surrogate country selection. Separate Rates In 2005, the Department notified parties of a new application and certification process by which exporters and producers may obtain separate rate status in an NME review. The process requires exporters and producers to submit a separate rate status certification and/or application. See 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’’), available at: http:// ia.ita.doc.gov. However, the standard eligibility criteria for determining whether a firm is eligible for a separate rate (i.e., a demonstration of an absence of both de jure and de facto government control over export activities), has not changed. A designation of a country as an NME remains in effect until it is revoked by the Department. See section 771(18)(c)(i) of the Act. In proceedings involving NME countries, it is the Department’s practice to begin with a rebuttable presumption that all companies within the country are subject to government control and thus should be assessed a single antidumping duty rate. See Policy Bulletin; see also Notice of Final Determination of Sales at Less Than Fair Value, and Affirmative Critical Circumstances, In Part: Certain Lined Paper Products from the People’s Republic of China, 71 FR 53079, 53082 (September 8, 2006); Final Determination of Sales at Less Than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People’s Republic of China, 71 FR 29303, 29307 (May 22, 2006) (‘‘Diamond Sawblades’’). It is the Department’s policy to assign all exporters of merchandise subject to review in an NME country this single rate unless an exporter can affirmatively demonstrate that it is sufficiently VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 independent so as to be entitled to a separate rate. See, e.g., Diamond Sawblades, 71 FR at 29307. Exporters can demonstrate this independence through the absence of both de jure and de facto government control over export activities. Id. The Department analyzes each entity exporting the subject merchandise under a test arising from the Notice of Final Determination of Sales at Less Than Fair Value: Sparklers from the People’s Republic of China, 56 FR 20588, 20589 (May 6, 1991) (‘‘Sparklers’’), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide from the People’s Republic of China, 59 FR 22585, 22586–87 (May 2, 1994) (‘‘Silicon Carbide’’). However, if the Department determines that a company is wholly foreign–owned or located in a market economy, then a separate rate analysis is not necessary to determine whether it is independent from government control. See, e.g., Final Results of Antidumping Duty Administrative Review: Petroleum Wax Candles from the People’s Republic of China, 72 FR 52355, 52356 (September 13, 2007). a. Absence of De Jure Control The Department considers the following de jure criteria in determining whether an individual company may be granted a separate rate: (1) an absence of restrictive stipulations associated with an individual exporter’s business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies. See Sparklers, 56 FR at 20589. The evidence provided by Hubei Xingfa supports a preliminary finding of de jure absence of government control based on the following: (1) an absence of restrictive stipulations associated with the individual exporter’s business and export licenses; (2) there are applicable legislative enactments decentralizing control of the companies; and (3) there are formal measures by the government decentralizing control of companies. See Hubei Xingfa’s May 26, 2009 submission at 2–11; see also Hubei Xingfa’s August 21, 2009 submission at 6–16. b. Absence of De Facto Control Typically the Department considers four factors in evaluating whether each respondent is subject to de facto government control of its export functions: (1) whether the export prices are set by or are subject to the approval of a government agency; (2) whether the respondent has authority to negotiate PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 19615 and sign contracts and other agreements; (3) whether the respondent has autonomy from the government in making decisions regarding the selection of management; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. See Silicon Carbide, 59 FR at 22587; see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from the People’s Republic of China, 60 FR 22544, 22545 (May 8, 1995). The Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of government control which would preclude the Department from assigning separate rates. The evidence provided by Hubei Xingfa supports a preliminary finding of de facto absence of government control based on the following: (1) the companies set their own export prices independent of the government and without the approval of a government authority; (2) the companies have authority to negotiate and sign contracts and other agreements; (3) the companies have autonomy from the government in making decisions regarding the selection of management; and (4) there is no restriction on any of the company’s use of export revenue. See Hubei Xingfa’s May 26, 2009 submission at 2–11; see also Hubei Xingfa’s August 21, 2009 submission at 6–16. Therefore, the Department preliminarily finds that Hubei Xingfa has established that it qualifies for a separate rate under the criteria established by Silicon Carbide and Sparklers. Date of Sale The date of sale is generally the date on which the parties agree upon all substantive terms of the sale. This normally includes the price, quantity, delivery terms and payment terms. See Carbon and Alloy Steel Wire Rod from Trinidad and Tobago: Final Results of Antidumping Duty Administrative Review, 72 FR 62824 (November 7, 2007) and accompanying Issues and Decision Memorandum at Comment 1; see also Notice of Final Determination of Sales at Less Than Fair Value: Certain Cold–Rolled Flat–Rolled Carbon Quality Steel Products from Turkey, 65 FR 15123 (March 21, 2000) and accompanying Issues and Decision Memorandum at Comment 2. Section 351.401(i) of the Department’s regulations state that, ‘‘{i}n identifying the date of sale of the merchandise E:\FR\FM\15APN1.SGM 15APN1 19616 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices under consideration or foreign like product, the Secretary normally will use the date of invoice, as recorded in the exporter or producer’s records kept in the normal course of business.’’ The Secretary may use a date other than the date of invoice if the Secretary is satisfied that a different date better reflects the date on which the exporter or producer establishes the material terms of sale. See 19 CFR 351.401(i); see also Allied Tube, 132 F. Supp. 2d at 1090–1092. However, as noted by the Court of International Trade (‘‘CIT’’) in Allied Tube, a party seeking to establish a date of sale other than invoice date bears the burden of establishing that ‘‘ ‘a different date better reflects the date on which the exporter or producer establishes the material terms of sale.‘ ‘‘ See Allied Tube & Conduit Corp. v. United States, 132 F. Supp. 2d at 1087, 1090 (CIT 2001) (quoting 19 CFR 351.401(i)) (‘‘Allied Tube’’). Hubei Xingfa reported that the date of sale was determined by the invoice issued by the affiliated importer to the unaffiliated United States customer. In this case, as the Department found no evidence contrary to Hubei Xingfa’s claims that invoice date was the appropriate date of sale, the Department used invoice date as the date of sale for these preliminary results. See, e.g., Hubei Xingfa’s August 21, 2009 submission at 4. Fair Value Comparisons To determine whether sales of sodium hex to the United States by Hubei Xingfa were made at less than fair value, the Department compared the export price (‘‘EP’’) to NV, as described in the ‘‘U.S. Price,’’ and ‘‘Normal Value’’ sections below. mstockstill on DSKH9S0YB1PROD with NOTICES U.S. Price In accordance with section 772(a) of the Act, we calculated the EP for sales to the United States for Hubei Xingfa. We calculated EP based on the price to unaffiliated purchasers in the United States. In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price to unaffiliated purchasers foreign inland freight, foreign brokerage and handling, customs duties, domestic brokerage and handling and other movement expenses incurred. For the services provided by an NME vendor or paid for using an NME currency we based the deduction of these movement charges on surrogate values. See Surrogate Values Memo for details regarding the surrogate values for movement expenses. VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 Normal Value Section 773(c)(1) of the Act provides that the Department shall determine the NV using a FOP methodology if the merchandise is exported from an NME and the information does not permit the calculation of NV using home–market prices, third–country prices, or constructed value under section 773(a) of the Act. The Department bases NV on the FOPs because the presence of government controls on various aspects of non–market economies renders price comparisons and the calculation of production costs invalid under the Department’s normal methodologies. In its questionnaire responses, Hubei Xingfa claimed to self–produce a portion of the electricity used to produce sodium hex, stating that it owned several hydroelectric power stations which provided a portion of the electricity used to produce sodium hex. In addition, in response to the Department’s request for all valid business licenses held by Hubei Xingfa during the POR, Hubei Xingfa did not provide separate licenses for the hydroelectric power stations. See Hubei Xingfa’s August 21, 2009 submission at 14–15 and Exhibit 13. In addition, because, Hubei Xingfa claimed to self– produce its own electricity, it reported the labor consumed at its hydroelectric power stations in lieu of reporting the electricity, or intermediate input, these stations generated. However, at verification the Department discovered that that each of Hubei Xingfa’s hydroelectric power stations has its own business license, and thus are separate legal entities that operate apart from Hubei Xingfa. See Hubei Xingfa Verification Report at 2. We do not find that the record evidence sufficiently supports the claim that Hubei Xingfa produced its own electricity because its electricity suppliers operate as distinct legal entities. Pursuant to 19 CFR 351.401(f), the Department will collapse producers and treat them as a single entity where (1) those producers are affiliated, (2) the producers have production facilities for producing similar or identical products that would not require substantial retooling of either facility in order to restructure manufacturing priorities, and (3) there is a significant potential for manipulation of price or production. In Fish Fillets, for example, the Department did not collapse a respondent with an affiliated input producer when the affiliate did not have the ability to produce or export similar or identical products, and could not produce such products without substantial retooling. See Certain Frozen PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 Fish Fillets From the Socialist Republic of Vietnam: Final Resultsof Antidumping Duty Administrative Review and Partial Rescission, 73 FR 15479 (March 24, 2008) (‘‘Fish Fillets’’) and accompanying Issues and Decision Memorandum at Comment 5C. As a consequence, when valuing the intermediate input to the subject merchandise in its calculation of the NV in Fish Fillets, the Department employed a surrogate value, rather than the FOPs used to produce the intermediate input. Id. Similarly, because Hubei Xingfa’s electricity suppliers represent distinct legal entities that are not involved in the production of the subject merchandise at issue, for these preliminary results, we are applying a surrogate value to the amount of electricity self–produced by Hubei Xingfa. See the Hubei Xingfa Verification Report at Exhibits 14 and 16. In addition, because Hubei Xingfa reported labor as the FOP input into self–produced electricity, we have deducted the labor usage rate for self– produced electricity from Hubei Xingfa’s overall reported labor. Because these calculations are proprietary, see Memorandum to the File, through Scot T. Fullerton, Program Manager, Office 9, from Paul Walker, Senior Analyst, ‘‘First Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Hubei Xingfa Chemical Group Co., Ltd.,’’ dated concurrently with this notice (‘‘Hubei Xingfa Analysis Memo’’), for further details. Factor Valuations In accordance with section 773(c) of the Act, we calculated NV based on FOP data reported by Hubei Xingfa. To calculate NV, we multiplied the reported per–unit factor–consumption rates by publicly available surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. See, e.g., Fresh Garlic from the People’s Republic of China: Final Results of Antidumping Duty New Shipper Review, 67 FR 72139 (December 4, 2002) and accompanying Issues and Decision Memorandum at Comment 6; see also Final Results of First New Shipper Review and First Antidumping Duty Administrative Review: Certain Preserved Mushrooms from the People’s Republic of China, 66 FR 31204 (June 11, 2001) and accompanying Issues and Decision Memorandum at Comment 5. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to Indian import surrogate values a surrogate freight cost using the shorter E:\FR\FM\15APN1.SGM 15APN1 mstockstill on DSKH9S0YB1PROD with NOTICES Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices of the reported distance from the domestic supplier to the factory or the distance from the nearest seaport to the factory where appropriate. This adjustment is in accordance with the Court of Appeals for the Federal Circuit’s decision in Sigma Corp. v. United States, 117 F.3d 1401, 1407–08 (Fed. Cir. 1997). For a detailed description of all surrogate values used for Hubei Xingfa, see Memorandum to the File through Scot Fullerton, Program Manager, Office 9, from Paul Walker, Senior Case Analyst, ‘‘First Administrative Review of Sodium Hexametaphosphate from the People’s Republic of China: Surrogate Factor Valuations for the Preliminary Results,’’ dated concurrently with this notice (‘‘Surrogate Values Memo’’). For these preliminary results, in accordance with the Department’s practice, we used data from Indian Import Statistics and other publicly available Indian sources in order to calculate surrogate values for Hubei Xingfa’s raw materials, packing, by– products, and energy. In selecting the best available information for valuing FOPs, in accordance with section 773(c)(1) of the Act, the Department’s practice is to select, to the extent practicable, surrogate values which are non–export average values, most contemporaneous with the POR, product–specific, and tax–exclusive. See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004), unchanged in Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004). The record shows that data in the Indian Import Statistics, as well as those from the other Indian sources, are contemporaneous with the POR, product–specific, and tax–exclusive. See Surrogate Values Memo. In those instances where we could not obtain publicly available information contemporaneous to the POR with which to value factors, we adjusted the surrogate values using, where appropriate, the Indian Wholesale Price Index (‘‘WPI’’) as published in the International Financial Statistics of the International Monetary Fund. See, e.g., Preliminary Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 Circumstances: Certain Polyester Staple Fiber from the People’s Republic of China, 71 FR 77373, 77380 (December 26, 2006)(‘‘PSF’’). Furthermore, with regard to the Indian import–based surrogate values, we have disregarded import prices that we have reason to believe or suspect may be subsidized. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 70 FR 54007, 54011 (September 13, 2005), results unchanged in Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Final Results of the First Administrative Review, 71 FR 14170 (March 21, 2006); and China Nat’l Machinery Import & Export Corp. v. United States, 293 F. Supp. 2d 1334, 1336 (Ct. Int’l. Trade 2003), aff’d 104 Fed. Appx. 183 (Fed. Cir. 2004). In determining whether to disregard inputs the Department believes may be subsidized, the Department, guided by the legislative history, does not conduct a formal investigation to ensure that such prices are not subsidized. See Omnibus Trade and Competitiveness Act of 1988, Conference Report to accompany H.R. Rep. 100–576 at 590 (1988), reprinted in 1988 U.S.C.C.A.N. 1547, 1623–24. Rather, the Department bases its decision on information that is available to it at the time it makes its determination. See Polyethylene Terephthalate Film, Sheet, and Strip from the People’s Republic of China: Preliminary Determination of Sales at Less Than Fair Value, 73 FR 24552, 24559 (May 5, 2008), unchanged in Polyethylene Terephthalate Film, Sheet, and Strip from the People’s Republic of China: Final Determination of Sales at Less Than Fair Value, 73 FR 55039 (September 24, 2008) (‘‘PET Film’’). In this instance, we have reason to believe or suspect that prices of inputs from Indonesia, South Korea, and Thailand may have been subsidized because we found in other proceedings that these countries maintain broadly available, non–industry-specific export subsidies. See, e.g., Dynamic Random Access Memory Semiconductors from the Republic of Korea: Final Results of Countervailing Duty Administrative Review, 74 FR 60238 (November 20, 2009). It is thus reasonable to infer that all exports to all markets from these countries may be subsidized. Therefore, we have not used prices from these countries in calculating the Indian import–based surrogate values. Additionally, we disregarded prices from NME countries. Finally, imports that were labeled as originating from an ‘‘unspecified’’ country were excluded PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 19617 from the average value, because the Department could not be certain that they were not from either an NME country or a country with general export subsidies. See, e.g., PET Film. For direct, indirect, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression–based wage rate as reported on Import Administration’s home page, Import Library, Expected Wages of Selected NME Countries, revised in October 2009. See 2009 Calculation of Expected Non–Market Economy Wages, 74 FR 65092 (December 9, 2009), and http://ia.ita.doc.gov/wages/index.html. The source of these wage–rate data on the Import Administration’s web site is the Yearbook of Labour Statistics 2005, ILO (Geneva: 2007), Chapter 5B: Wages in Manufacturing. Because this regression–based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by Hubei Xingfa. We valued electricity using price data for small, medium, and large industries, as published by the Central Electricity Authority of the Government of India in its publication titled Electricity Tariff & Duty and Average Rates of Electricity Supply in India, dated March 2008. These electricity rates represent actual country–wide, publicly available information on tax–exclusive electricity rates charged to industries in India. As the rates listed in this source became effective on a variety of different dates, we are not adjusting the average value for inflation. We valued truck freight expenses using a per–unit average rate calculated from data on the Infobanc Web site: http://www.infobanc.com/logistics/ logtruck.htm. The logistics section of this Web site contains inland freight truck rates between many large Indian cities. Since this value is contemporaneous with the POR, we did not adjust it for inflation. We continued our recent practice to value brokerage and handling using a simple average of the brokerage and handling costs that were reported in public submissions that were filed in three antidumping duty cases. Specifically, we averaged the public brokerage and handling expenses reported by Navneet Publications (India) Ltd. in the 2007–2008 administrative review of certain lined paper products from India, Essar Steel Limited in the 2006–2007 antidumping duty administrative review of hot–rolled carbon steel flat products from India, and Himalaya International Ltd. in the 2005–2006 administrative review of E:\FR\FM\15APN1.SGM 15APN1 19618 Federal Register / Vol. 75, No. 72 / Thursday, April 15, 2010 / Notices certain preserved mushrooms from India. See Surrogate Values Memo. Since the Essar and Navneet brokerage and handling expense are contemporaneous with the POR, we did not adjust them for inflation. However, because the Himalaya brokerage and handling expense is not contemporaneous with the POR, we inflated it using the WPI. To value factory overhead, selling, general, and administrative (‘‘SG&A’’) expenses, and profit, the Department used the audited financial statement of Tata Chemicals, as it is the only financial statement on the record of this review. We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales as certified by the Federal Reserve Bank. We are preliminarily granting a by– product offset to Hubei Xingfa for ferro– phosphorous and slag because Hubei Xingfa provided evidence that these by by–products were produced and sold during the POR. Preliminary Results of Review The Department preliminarily determines that the following weighted– average dumping margins exist: Manufacturer/Exporter Weighted Average Margin (Percent) mstockstill on DSKH9S0YB1PROD with NOTICES Hubei Xingfa ................. 118.79 Disclosure and Public Hearing The Department will disclose to parties the calculations performed in connection with these preliminary results within five days of the date of publication of this notice. See 19 CFR 351.224(b). In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results. Interested parties must provide the Department with supporting documentation for the publicly available information to value each FOP. Additionally, in accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, interested parties may submit factual information to rebut, clarify, or correct factual information submitted by an interested party less than ten days before, on, or after, the applicable deadline for submission of such factual information. However, the Department notes that 19 CFR 351.301(c)(1) permits new information only insofar as it VerDate Nov<24>2008 15:43 Apr 14, 2010 Jkt 220001 rebuts, clarifies, or corrects information recently placed on the record. The Department generally cannot accept the submission of additional, previously absent–from-the–record alternative surrogate value information pursuant to 19 CFR 351.301(c)(1). See Glycine from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review and Final Rescission, in Part, 72 FR 58809 (October 17, 2007) and accompanying Issues and Decision Memorandum at Comment 2. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than five days after the deadline for filing case briefs. See 19 CFR 351.309(d). The Department urges interested parties to provide an executive summary of each argument contained within the case briefs and rebuttal briefs. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any such comments, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act. Assessment Rates Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review excluding any reported sales that entered during the gap period. In accordance with 19 CFR 351.212(b)(1), we calculated exporter/ importer (or customer)-specific assessment rates for the merchandise subject to this review. Because we do not have entered values for all U.S. sales, we calculated an ad valorem assessment rate by aggregating the antidumping duties due for all U.S. sales to each importer (or customer) and dividing this amount by the total quantity sold to that importer (or customer). See 19 CFR 351.212(b)(1). To determine whether the duty assessment rates are de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer (or customer)-specific ad valorem ratios based on the estimated entered value. Where an importer (or customer)specific ad valorem rate is zero or de PO 00000 Frm 00011 Fmt 4703 Sfmt 9990 minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. See 19 CFR 351.106(c)(2). Cash Deposit Requirements The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) for the exporter listed above, the cash deposit rate will be established in the final results of this review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC–wide rate of 188.05 percent; and (3) for all non– PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non–PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice. Notification to Importers This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties. These results are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4). April 5, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. [FR Doc. 2010–8643 Filed 4–14–10; 8:45 am] BILLING CODE 3510–DS–S E:\FR\FM\15APN1.SGM 15APN1

Agencies

[Federal Register Volume 75, Number 72 (Thursday, April 15, 2010)]
[Notices]
[Pages 19613-19618]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-8643]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-908]


First Administrative Review of Sodium Hexametaphosphate from the 
People's Republic of China: Notice of Preliminary Results of the 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the 
first administrative review of the antidumping duty order on sodium 
hexametaphosphate (``sodium hex'') from the People's Republic of China 
(``PRC'') for the period of review (``POR'') September 14, 2007, 
through February 28, 2009. The Department has preliminarily determined 
that sales have been made below normal value (``NV'') by the 
respondent. If these preliminary results are adopted in our final 
results of this review, the Department will instruct U.S. Customs and 
Border Protection (``CBP'') to assess antidumping duties on all 
appropriate entries of subject merchandise during the POR. Interested 
parties are invited to comment on these preliminary results.

EFFECTIVE DATE: April 15, 2010.

FOR FURTHER INFORMATION CONTACT: Paul Walker, AD/CVD Operations, Office 
9, Import Administration, International Trade Administration, 
Department of Commerce, 14\th\ Street and Constitution Avenue, NW, 
Washington, DC 20230; telephone: (202) 482-0413.

SUPPLEMENTARY INFORMATION:

Case Timeline

    On April 27, 2009, the Department published in the Federal Register 
a notice of initiation of an administrative review of sodium hex from 
the PRC, covering the POR, for one company, Hubei Xingfa Chemical Group 
Co., Ltd. (``Xingfa''). See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews and Request for

[[Page 19614]]

Revocation in Part, 74 FR 19042 (April 27, 2009) (``Initiation'').
    On November 25, 2009, the Department published a notice extending 
the time period for issuing the preliminary results by 60 days to 
January 30, 2010. See First Antidumping Duty Administrative Review of 
Sodium Hexametaphosphate from the People's Republic of China: Extension 
of Time Limit for the Preliminary Results, 74 FR 61656 (November 25, 
2009). On February 5, 2010, the Department published a notice extending 
the time period for issuing the preliminary results by 41 days to March 
12, 2010. See First Antidumping Duty Administrative Review of Sodium 
Hexametaphosphate from the People's Republic of China: Extension of 
Time Limit for the Preliminary Results, 75 FR 5946 (February 5, 2010).
    As explained in the memorandum from the Deputy Assistant Secretary 
for Import Administration, the Department has exercised its discretion 
to toll deadlines for the duration of the closure of the Federal 
Government from February 5, through February 12, 2010. See Memorandum 
to the Record regarding ``Tolling of Administrative Deadlines As a 
Result of the Government Closure During the Recent Snowstorm,'' dated 
February 12, 2010. Thus, all deadlines in this segment of the 
proceeding have been extended by seven days, and the revised deadline 
for the preliminary results of this review became March 19, 2010.
    On March 26, 2010, the Department published a notice extending the 
time period for issuing the preliminary results by 17 days to April 5, 
2010. See First Antidumping Duty Administrative Review of Sodium 
Hexametaphosphate from the People's Republic of China: Extension of 
Time Limit for the Preliminary Results, 75 FR 14568 (March 26, 2010).

Submissions by Interest Parties

    As noted above, on April 27, 2009, this administrative review was 
initiated on one company, Hubei Xingfa. On May 4, 2009, the Department 
issued Hubei Xingfa the antidumping duty questionnaire. From May 26, 
2009 to October 28, 2009, Hubei Xingfa submitted responses to the 
Department's antidumping duty questionnaires.
    On July 6, 2009, the Department sent interested parties a letter 
inviting comments on surrogate country selection and surrogate value 
data. On November 6, 2009, Hubei Xingfa and the Petitioners\1\ 
submitted comments on surrogate country and information to value 
factors of production (``FOP'').
---------------------------------------------------------------------------

    \1\ ICL Performance Products and Innophos, Inc. (collectively, 
the ``Petitioners'').
---------------------------------------------------------------------------

Verification

    Pursuant to 19 CFR 351.307(b)(iv), from November 19-23, 2009, the 
Department conducted verification of Hubei Xingfa's questionnaire 
responses. See Memorandum to the File through Scot T. Fullerton, 
Program Manager, Office 9, from Paul Walker, Senior Case Analyst, 
``First Administrative Review of Sodium Hexametaphospahte from the 
People's Republic of China: Verification of Hubei Xingfa Chemical Group 
Co., Ltd.,'' dated concurrently with this notice (``Hubei Xingfa 
Verification Report'').

Scope of the Order

    The merchandise subject to this review is sodium hexametaphosphate. 
Sodium hexametaphosphate is a water-soluble polyphosphate glass that 
consists of a distribution of polyphosphate chain lengths. It is a 
collection of sodium polyphosphate polymers built on repeating 
NaPO3 units. SHMP has a P2O5 content 
from 60 to 71 percent. Alternate names for sodium hexametaphosphate 
include the following: Calgon; Calgon S; Glassy Sodium Phosphate; 
Sodium Polyphosphate, Glassy; Metaphosphoric Acid; Sodium Salt; Sodium 
Acid Metaphosphate; Graham's Salt; Sodium Hex; Polyphosphoric Acid, 
Sodium Salt; Glass H; Hexaphos; Sodaphos; Vitrafos; and BAC-N-FOS. 
Sodium hexametaphosphate is typically sold as a white powder or granule 
(crushed) and may also be sold in the form of sheets (glass) or as a 
liquid solution. It is imported under heading 2835.39.5000, HTSUS. It 
may also be imported as a blend or mixture under heading 3824.90.3900, 
HTSUS. The American Chemical Society, Chemical Abstract Service 
(``CAS'') has assigned the name ``Polyphosphoric Acid, Sodium Salt'' to 
SHMP. The CAS registry number is 68915-31-1. However, sodium 
hexametaphosphate is commonly identified by CAS No. 10124-56-8 in the 
market. For purposes of the review, the narrative description is 
dispositive, not the tariff heading, CAS registry number or CAS name.
    The product covered by this review includes sodium 
hexametaphosphate in all grades, whether food grade or technical grade. 
The product covered by this review includes sodium hexametaphosphate 
without regard to chain length i.e., whether regular or long chain. The 
product covered by this review includes sodium hexametaphosphate 
without regard to physical form, whether glass, sheet, crushed, 
granule, powder, fines, or other form, and whether or not in solution.
    However, the product covered by this review does not include sodium 
hexametaphosphate when imported in a blend with other materials in 
which the sodium hexametaphosphate accounts for less than 50 percent by 
volume of the finished product.

Non-Market Economy (``NME'') Country Status

    In every case conducted by the Department involving the PRC, the 
PRC has been treated as an NME country. In accordance with section 
771(18)(C)(i) of the Act, any determination made that a foreign country 
is an NME country shall remain in effect until revoked by the 
administering authority. See, e.g., Brake Rotors from the People's 
Republic of China: Final Results and Partial Rescission of the 2004/
2005 Administrative Review and Notice of Rescission of 2004/2005 New 
Shipper Review, 71 FR 66304 (November 14, 2006). None of the parties to 
this proceeding have contested such treatment. Accordingly, the 
Department calculated NV in accordance with section 773(c) of the Act, 
which applies to NME countries.

Surrogate Country

    When the Department reviews imports from an NME country and the 
available information does not permit the Department to determine NV, 
pursuant to section 773(a) of the Act, then, pursuant to section 
773(c)(4) of the Act, the Department bases NV on an NME producer's 
FOPs, to the extent possible, in one or more market-economy countries 
that (1) are at a level of economic development comparable to that of 
the NME country, and (2) are significant producers of comparable 
merchandise. The Department determined India, Philippines, Indonesia, 
Columbia, Thailand, and Peru are countries comparable to the PRC in 
terms of economic development. See July 6, 2009, Letter to All 
Interested Parties, regarding ``Antidumping Duty Administrative Review 
of Sodium Hexametaphosphate from the People's Republic of China,'' 
attaching July 2, 2009, Memorandum to Scot T. Fullerton, Program 
Manager, Office 9, AD/CVD Operations, from Kelly Parkhill, Acting 
Director, Office for Policy, regarding ``Request for List of Surrogate 
Countries for an Administrative Review of the Antidumping Duty Order on 
Sodium Hexametaphosphate from the People's Republic of China'' 
(``Surrogate Country List'').

[[Page 19615]]

    Based on publicly available information placed on the record, the 
Department determines India to be a reliable source for surrogate 
values because India is at a comparable level of economic development, 
pursuant to section 773(c)(4) of the Act, is a significant producer of 
subject merchandise, and has publicly available and reliable data. 
Furthermore, all the surrogate values placed on the record by the 
parties were obtained from sources in India. Accordingly, the 
Department selected India as the surrogate country for purposes of 
valuing the FOPs because it meets the Department's criteria for 
surrogate country selection.

Separate Rates

    In 2005, the Department notified parties of a new application and 
certification process by which exporters and producers may obtain 
separate rate status in an NME review. The process requires exporters 
and producers to submit a separate rate status certification and/or 
application. See 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''), available at: http://ia.ita.doc.gov. However, the standard 
eligibility criteria for determining whether a firm is eligible for a 
separate rate (i.e., a demonstration of an absence of both de jure and 
de facto government control over export activities), has not changed.
    A designation of a country as an NME remains in effect until it is 
revoked by the Department. See section 771(18)(c)(i) of the Act. In 
proceedings involving NME countries, it is the Department's practice to 
begin with a rebuttable presumption that all companies within the 
country are subject to government control and thus should be assessed a 
single antidumping duty rate. See Policy Bulletin; see also Notice of 
Final Determination of Sales at Less Than Fair Value, and Affirmative 
Critical Circumstances, In Part: Certain Lined Paper Products from the 
People's Republic of China, 71 FR 53079, 53082 (September 8, 2006); 
Final Determination of Sales at Less Than Fair Value and Final Partial 
Affirmative Determination of Critical Circumstances: Diamond Sawblades 
and Parts Thereof from the People's Republic of China, 71 FR 29303, 
29307 (May 22, 2006) (``Diamond Sawblades''). It is the Department's 
policy to assign all exporters of merchandise subject to review in an 
NME country this single rate unless an exporter can affirmatively 
demonstrate that it is sufficiently independent so as to be entitled to 
a separate rate. See, e.g., Diamond Sawblades, 71 FR at 29307. 
Exporters can demonstrate this independence through the absence of both 
de jure and de facto government control over export activities. Id. The 
Department analyzes each entity exporting the subject merchandise under 
a test arising from the Notice of Final Determination of Sales at Less 
Than Fair Value: Sparklers from the People's Republic of China, 56 FR 
20588, 20589 (May 6, 1991) (``Sparklers''), as further developed in 
Notice of Final Determination of Sales at Less Than Fair Value: Silicon 
Carbide from the People's Republic of China, 59 FR 22585, 22586-87 (May 
2, 1994) (``Silicon Carbide''). However, if the Department determines 
that a company is wholly foreign-owned or located in a market economy, 
then a separate rate analysis is not necessary to determine whether it 
is independent from government control. See, e.g., Final Results of 
Antidumping Duty Administrative Review: Petroleum Wax Candles from the 
People's Republic of China, 72 FR 52355, 52356 (September 13, 2007).

a. Absence of De Jure Control

    The Department considers the following de jure criteria in 
determining whether an individual company may be granted a separate 
rate: (1) an absence of restrictive stipulations associated with an 
individual exporter's business and export licenses; (2) any legislative 
enactments decentralizing control of companies; and (3) any other 
formal measures by the government decentralizing control of companies. 
See Sparklers, 56 FR at 20589. The evidence provided by Hubei Xingfa 
supports a preliminary finding of de jure absence of government control 
based on the following: (1) an absence of restrictive stipulations 
associated with the individual exporter's business and export licenses; 
(2) there are applicable legislative enactments decentralizing control 
of the companies; and (3) there are formal measures by the government 
decentralizing control of companies. See Hubei Xingfa's May 26, 2009 
submission at 2-11; see also Hubei Xingfa's August 21, 2009 submission 
at 6-16.

b. Absence of De Facto Control

    Typically the Department considers four factors in evaluating 
whether each respondent is subject to de facto government control of 
its export functions: (1) whether the export prices are set by or are 
subject to the approval of a government agency; (2) whether the 
respondent has authority to negotiate and sign contracts and other 
agreements; (3) whether the respondent has autonomy from the government 
in making decisions regarding the selection of management; and (4) 
whether the respondent retains the proceeds of its export sales and 
makes independent decisions regarding disposition of profits or 
financing of losses. See Silicon Carbide, 59 FR at 22587; see also 
Notice of Final Determination of Sales at Less Than Fair Value: 
Furfuryl Alcohol from the People's Republic of China, 60 FR 22544, 
22545 (May 8, 1995). The Department has determined that an analysis of 
de facto control is critical in determining whether respondents are, in 
fact, subject to a degree of government control which would preclude 
the Department from assigning separate rates. The evidence provided by 
Hubei Xingfa supports a preliminary finding of de facto absence of 
government control based on the following: (1) the companies set their 
own export prices independent of the government and without the 
approval of a government authority; (2) the companies have authority to 
negotiate and sign contracts and other agreements; (3) the companies 
have autonomy from the government in making decisions regarding the 
selection of management; and (4) there is no restriction on any of the 
company's use of export revenue. See Hubei Xingfa's May 26, 2009 
submission at 2-11; see also Hubei Xingfa's August 21, 2009 submission 
at 6-16. Therefore, the Department preliminarily finds that Hubei 
Xingfa has established that it qualifies for a separate rate under the 
criteria established by Silicon Carbide and Sparklers.

Date of Sale

    The date of sale is generally the date on which the parties agree 
upon all substantive terms of the sale. This normally includes the 
price, quantity, delivery terms and payment terms. See Carbon and Alloy 
Steel Wire Rod from Trinidad and Tobago: Final Results of Antidumping 
Duty Administrative Review, 72 FR 62824 (November 7, 2007) and 
accompanying Issues and Decision Memorandum at Comment 1; see also 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Cold-Rolled Flat-Rolled Carbon Quality Steel Products from Turkey, 65 
FR 15123 (March 21, 2000) and accompanying Issues and Decision 
Memorandum at Comment 2.
    Section 351.401(i) of the Department's regulations state that, 
``{i{time} n identifying the date of sale of the merchandise

[[Page 19616]]

under consideration or foreign like product, the Secretary normally 
will use the date of invoice, as recorded in the exporter or producer's 
records kept in the normal course of business.'' The Secretary may use 
a date other than the date of invoice if the Secretary is satisfied 
that a different date better reflects the date on which the exporter or 
producer establishes the material terms of sale. See 19 CFR 351.401(i); 
see also Allied Tube, 132 F. Supp. 2d at 1090-1092. However, as noted 
by the Court of International Trade (``CIT'') in Allied Tube, a party 
seeking to establish a date of sale other than invoice date bears the 
burden of establishing that `` `a different date better reflects the 
date on which the exporter or producer establishes the material terms 
of sale.` `` See Allied Tube & Conduit Corp. v. United States, 132 F. 
Supp. 2d at 1087, 1090 (CIT 2001) (quoting 19 CFR 351.401(i)) (``Allied 
Tube'').
    Hubei Xingfa reported that the date of sale was determined by the 
invoice issued by the affiliated importer to the unaffiliated United 
States customer. In this case, as the Department found no evidence 
contrary to Hubei Xingfa's claims that invoice date was the appropriate 
date of sale, the Department used invoice date as the date of sale for 
these preliminary results. See, e.g., Hubei Xingfa's August 21, 2009 
submission at 4.

Fair Value Comparisons

    To determine whether sales of sodium hex to the United States by 
Hubei Xingfa were made at less than fair value, the Department compared 
the export price (``EP'') to NV, as described in the ``U.S. Price,'' 
and ``Normal Value'' sections below.

U.S. Price

    In accordance with section 772(a) of the Act, we calculated the EP 
for sales to the United States for Hubei Xingfa. We calculated EP based 
on the price to unaffiliated purchasers in the United States. In 
accordance with section 772(c) of the Act, as appropriate, we deducted 
from the starting price to unaffiliated purchasers foreign inland 
freight, foreign brokerage and handling, customs duties, domestic 
brokerage and handling and other movement expenses incurred. For the 
services provided by an NME vendor or paid for using an NME currency we 
based the deduction of these movement charges on surrogate values. See 
Surrogate Values Memo for details regarding the surrogate values for 
movement expenses.

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine the NV using a FOP methodology if the merchandise is exported 
from an NME and the information does not permit the calculation of NV 
using home-market prices, third-country prices, or constructed value 
under section 773(a) of the Act. The Department bases NV on the FOPs 
because the presence of government controls on various aspects of non-
market economies renders price comparisons and the calculation of 
production costs invalid under the Department's normal methodologies.
    In its questionnaire responses, Hubei Xingfa claimed to self-
produce a portion of the electricity used to produce sodium hex, 
stating that it owned several hydroelectric power stations which 
provided a portion of the electricity used to produce sodium hex. In 
addition, in response to the Department's request for all valid 
business licenses held by Hubei Xingfa during the POR, Hubei Xingfa did 
not provide separate licenses for the hydroelectric power stations. See 
Hubei Xingfa's August 21, 2009 submission at 14-15 and Exhibit 13. In 
addition, because, Hubei Xingfa claimed to self-produce its own 
electricity, it reported the labor consumed at its hydroelectric power 
stations in lieu of reporting the electricity, or intermediate input, 
these stations generated. However, at verification the Department 
discovered that that each of Hubei Xingfa's hydroelectric power 
stations has its own business license, and thus are separate legal 
entities that operate apart from Hubei Xingfa. See Hubei Xingfa 
Verification Report at 2.
    We do not find that the record evidence sufficiently supports the 
claim that Hubei Xingfa produced its own electricity because its 
electricity suppliers operate as distinct legal entities. Pursuant to 
19 CFR 351.401(f), the Department will collapse producers and treat 
them as a single entity where (1) those producers are affiliated, (2) 
the producers have production facilities for producing similar or 
identical products that would not require substantial retooling of 
either facility in order to restructure manufacturing priorities, and 
(3) there is a significant potential for manipulation of price or 
production. In Fish Fillets, for example, the Department did not 
collapse a respondent with an affiliated input producer when the 
affiliate did not have the ability to produce or export similar or 
identical products, and could not produce such products without 
substantial retooling. See Certain Frozen Fish Fillets From the 
Socialist Republic of Vietnam: Final Resultsof Antidumping Duty 
Administrative Review and Partial Rescission, 73 FR 15479 (March 24, 
2008) (``Fish Fillets'') and accompanying Issues and Decision 
Memorandum at Comment 5C. As a consequence, when valuing the 
intermediate input to the subject merchandise in its calculation of the 
NV in Fish Fillets, the Department employed a surrogate value, rather 
than the FOPs used to produce the intermediate input. Id. Similarly, 
because Hubei Xingfa's electricity suppliers represent distinct legal 
entities that are not involved in the production of the subject 
merchandise at issue, for these preliminary results, we are applying a 
surrogate value to the amount of electricity self-produced by Hubei 
Xingfa. See the Hubei Xingfa Verification Report at Exhibits 14 and 16. 
In addition, because Hubei Xingfa reported labor as the FOP input into 
self-produced electricity, we have deducted the labor usage rate for 
self-produced electricity from Hubei Xingfa's overall reported labor. 
Because these calculations are proprietary, see Memorandum to the File, 
through Scot T. Fullerton, Program Manager, Office 9, from Paul Walker, 
Senior Analyst, ``First Administrative Review of Sodium 
Hexametaphosphate from the People's Republic of China: Hubei Xingfa 
Chemical Group Co., Ltd.,'' dated concurrently with this notice 
(``Hubei Xingfa Analysis Memo''), for further details.

Factor Valuations

    In accordance with section 773(c) of the Act, we calculated NV 
based on FOP data reported by Hubei Xingfa. To calculate NV, we 
multiplied the reported per-unit factor-consumption rates by publicly 
available surrogate values. In selecting the surrogate values, we 
considered the quality, specificity, and contemporaneity of the data. 
See, e.g., Fresh Garlic from the People's Republic of China: Final 
Results of Antidumping Duty New Shipper Review, 67 FR 72139 (December 
4, 2002) and accompanying Issues and Decision Memorandum at Comment 6; 
see also Final Results of First New Shipper Review and First 
Antidumping Duty Administrative Review: Certain Preserved Mushrooms 
from the People's Republic of China, 66 FR 31204 (June 11, 2001) and 
accompanying Issues and Decision Memorandum at Comment 5. As 
appropriate, we adjusted input prices by including freight costs to 
make them delivered prices. Specifically, we added to Indian import 
surrogate values a surrogate freight cost using the shorter

[[Page 19617]]

of the reported distance from the domestic supplier to the factory or 
the distance from the nearest seaport to the factory where appropriate. 
This adjustment is in accordance with the Court of Appeals for the 
Federal Circuit's decision in Sigma Corp. v. United States, 117 F.3d 
1401, 1407-08 (Fed. Cir. 1997). For a detailed description of all 
surrogate values used for Hubei Xingfa, see Memorandum to the File 
through Scot Fullerton, Program Manager, Office 9, from Paul Walker, 
Senior Case Analyst, ``First Administrative Review of Sodium 
Hexametaphosphate from the People's Republic of China: Surrogate Factor 
Valuations for the Preliminary Results,'' dated concurrently with this 
notice (``Surrogate Values Memo'').
    For these preliminary results, in accordance with the Department's 
practice, we used data from Indian Import Statistics and other publicly 
available Indian sources in order to calculate surrogate values for 
Hubei Xingfa's raw materials, packing, by-products, and energy. In 
selecting the best available information for valuing FOPs, in 
accordance with section 773(c)(1) of the Act, the Department's practice 
is to select, to the extent practicable, surrogate values which are 
non-export average values, most contemporaneous with the POR, product-
specific, and tax-exclusive. See, e.g., Notice of Preliminary 
Determination of Sales at Less Than Fair Value, Negative Preliminary 
Determination of Critical Circumstances and Postponement of Final 
Determination: Certain Frozen and Canned Warmwater Shrimp From the 
Socialist Republic of Vietnam, 69 FR 42672, 42682 (July 16, 2004), 
unchanged in Final Determination of Sales at Less Than Fair Value: 
Certain Frozen and Canned Warmwater Shrimp from the Socialist Republic 
of Vietnam, 69 FR 71005 (December 8, 2004). The record shows that data 
in the Indian Import Statistics, as well as those from the other Indian 
sources, are contemporaneous with the POR, product-specific, and tax-
exclusive. See Surrogate Values Memo. In those instances where we could 
not obtain publicly available information contemporaneous to the POR 
with which to value factors, we adjusted the surrogate values using, 
where appropriate, the Indian Wholesale Price Index (``WPI'') as 
published in the International Financial Statistics of the 
International Monetary Fund. See, e.g., Preliminary Determination of 
Sales at Less Than Fair Value and Partial Affirmative Determination of 
Critical Circumstances: Certain Polyester Staple Fiber from the 
People's Republic of China, 71 FR 77373, 77380 (December 26, 
2006)(``PSF'').
    Furthermore, with regard to the Indian import-based surrogate 
values, we have disregarded import prices that we have reason to 
believe or suspect may be subsidized. See Certain Frozen Fish Fillets 
from the Socialist Republic of Vietnam: Preliminary Results and 
Preliminary Partial Rescission of Antidumping Duty Administrative 
Review, 70 FR 54007, 54011 (September 13, 2005), results unchanged in 
Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: 
Final Results of the First Administrative Review, 71 FR 14170 (March 
21, 2006); and China Nat'l Machinery Import & Export Corp. v. United 
States, 293 F. Supp. 2d 1334, 1336 (Ct. Int'l. Trade 2003), aff'd 104 
Fed. Appx. 183 (Fed. Cir. 2004). In determining whether to disregard 
inputs the Department believes may be subsidized, the Department, 
guided by the legislative history, does not conduct a formal 
investigation to ensure that such prices are not subsidized. See 
Omnibus Trade and Competitiveness Act of 1988, Conference Report to 
accompany H.R. Rep. 100-576 at 590 (1988), reprinted in 1988 
U.S.C.C.A.N. 1547, 1623-24. Rather, the Department bases its decision 
on information that is available to it at the time it makes its 
determination. See Polyethylene Terephthalate Film, Sheet, and Strip 
from the People's Republic of China: Preliminary Determination of Sales 
at Less Than Fair Value, 73 FR 24552, 24559 (May 5, 2008), unchanged in 
Polyethylene Terephthalate Film, Sheet, and Strip from the People's 
Republic of China: Final Determination of Sales at Less Than Fair 
Value, 73 FR 55039 (September 24, 2008) (``PET Film'').
    In this instance, we have reason to believe or suspect that prices 
of inputs from Indonesia, South Korea, and Thailand may have been 
subsidized because we found in other proceedings that these countries 
maintain broadly available, non-industry-specific export subsidies. 
See, e.g., Dynamic Random Access Memory Semiconductors from the 
Republic of Korea: Final Results of Countervailing Duty Administrative 
Review, 74 FR 60238 (November 20, 2009). It is thus reasonable to infer 
that all exports to all markets from these countries may be subsidized. 
Therefore, we have not used prices from these countries in calculating 
the Indian import-based surrogate values. Additionally, we disregarded 
prices from NME countries. Finally, imports that were labeled as 
originating from an ``unspecified'' country were excluded from the 
average value, because the Department could not be certain that they 
were not from either an NME country or a country with general export 
subsidies. See, e.g., PET Film.
    For direct, indirect, and packing labor, consistent with 19 CFR 
351.408(c)(3), we used the PRC regression-based wage rate as reported 
on Import Administration's home page, Import Library, Expected Wages of 
Selected NME Countries, revised in October 2009. See 2009 Calculation 
of Expected Non-Market Economy Wages, 74 FR 65092 (December 9, 2009), 
and http://ia.ita.doc.gov/wages/index.html. The source of these wage-
rate data on the Import Administration's web site is the Yearbook of 
Labour Statistics 2005, ILO (Geneva: 2007), Chapter 5B: Wages in 
Manufacturing. Because this regression-based wage rate does not 
separate the labor rates into different skill levels or types of labor, 
we have applied the same wage rate to all skill levels and types of 
labor reported by Hubei Xingfa.
    We valued electricity using price data for small, medium, and large 
industries, as published by the Central Electricity Authority of the 
Government of India in its publication titled Electricity Tariff & Duty 
and Average Rates of Electricity Supply in India, dated March 2008. 
These electricity rates represent actual country-wide, publicly 
available information on tax-exclusive electricity rates charged to 
industries in India. As the rates listed in this source became 
effective on a variety of different dates, we are not adjusting the 
average value for inflation.
    We valued truck freight expenses using a per-unit average rate 
calculated from data on the Infobanc Web site: http://www.infobanc.com/logistics/logtruck.htm. The logistics section of this Web site contains 
inland freight truck rates between many large Indian cities. Since this 
value is contemporaneous with the POR, we did not adjust it for 
inflation.
    We continued our recent practice to value brokerage and handling 
using a simple average of the brokerage and handling costs that were 
reported in public submissions that were filed in three antidumping 
duty cases. Specifically, we averaged the public brokerage and handling 
expenses reported by Navneet Publications (India) Ltd. in the 2007-2008 
administrative review of certain lined paper products from India, Essar 
Steel Limited in the 2006-2007 antidumping duty administrative review 
of hot-rolled carbon steel flat products from India, and Himalaya 
International Ltd. in the 2005-2006 administrative review of

[[Page 19618]]

certain preserved mushrooms from India. See Surrogate Values Memo. 
Since the Essar and Navneet brokerage and handling expense are 
contemporaneous with the POR, we did not adjust them for inflation. 
However, because the Himalaya brokerage and handling expense is not 
contemporaneous with the POR, we inflated it using the WPI.
    To value factory overhead, selling, general, and administrative 
(``SG&A'') expenses, and profit, the Department used the audited 
financial statement of Tata Chemicals, as it is the only financial 
statement on the record of this review.
    We made currency conversions into U.S. dollars, in accordance with 
section 773A(a) of the Act, based on the exchange rates in effect on 
the dates of the U.S. sales as certified by the Federal Reserve Bank.
    We are preliminarily granting a by-product offset to Hubei Xingfa 
for ferro-phosphorous and slag because Hubei Xingfa provided evidence 
that these by by-products were produced and sold during the POR.

Preliminary Results of Review

    The Department preliminarily determines that the following 
weighted-average dumping margins exist:

------------------------------------------------------------------------
                                                       Weighted Average
                Manufacturer/Exporter                  Margin (Percent)
------------------------------------------------------------------------
Hubei Xingfa........................................              118.79
------------------------------------------------------------------------

Disclosure and Public Hearing

    The Department will disclose to parties the calculations performed 
in connection with these preliminary results within five days of the 
date of publication of this notice. See 19 CFR 351.224(b).
    In accordance with 19 CFR 351.301(c)(3)(ii), for the final results 
of this administrative review, interested parties may submit publicly 
available information to value FOPs within 20 days after the date of 
publication of these preliminary results. Interested parties must 
provide the Department with supporting documentation for the publicly 
available information to value each FOP. Additionally, in accordance 
with 19 CFR 351.301(c)(1), for the final results of this administrative 
review, interested parties may submit factual information to rebut, 
clarify, or correct factual information submitted by an interested 
party less than ten days before, on, or after, the applicable deadline 
for submission of such factual information. However, the Department 
notes that 19 CFR 351.301(c)(1) permits new information only insofar as 
it rebuts, clarifies, or corrects information recently placed on the 
record. The Department generally cannot accept the submission of 
additional, previously absent-from-the-record alternative surrogate 
value information pursuant to 19 CFR 351.301(c)(1). See Glycine from 
the People's Republic of China: Final Results of Antidumping Duty 
Administrative Review and Final Rescission, in Part, 72 FR 58809 
(October 17, 2007) and accompanying Issues and Decision Memorandum at 
Comment 2.
    Interested parties may submit case briefs and/or written comments 
no later than 30 days after the date of publication of these 
preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal 
briefs and rebuttals to written comments, limited to issues raised in 
such briefs or comments, may be filed no later than five days after the 
deadline for filing case briefs. See 19 CFR 351.309(d). The Department 
urges interested parties to provide an executive summary of each 
argument contained within the case briefs and rebuttal briefs.
    The Department will issue the final results of this administrative 
review, which will include the results of its analysis of issues raised 
in any such comments, within 120 days of publication of these 
preliminary results, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries 
covered by this review. The Department intends to issue assessment 
instructions to CBP 15 days after the publication date of the final 
results of this review excluding any reported sales that entered during 
the gap period. In accordance with 19 CFR 351.212(b)(1), we calculated 
exporter/importer (or customer)-specific assessment rates for the 
merchandise subject to this review. Because we do not have entered 
values for all U.S. sales, we calculated an ad valorem assessment rate 
by aggregating the antidumping duties due for all U.S. sales to each 
importer (or customer) and dividing this amount by the total quantity 
sold to that importer (or customer). See 19 CFR 351.212(b)(1). To 
determine whether the duty assessment rates are de minimis, in 
accordance with the requirement set forth in 19 CFR 351.106(c)(2), we 
calculated importer (or customer)-specific ad valorem ratios based on 
the estimated entered value. Where an importer (or customer)-specific 
ad valorem rate is zero or de minimis, we will instruct CBP to 
liquidate appropriate entries without regard to antidumping duties. See 
19 CFR 351.106(c)(2).

Cash Deposit Requirements

    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) for the exporter 
listed above, the cash deposit rate will be established in the final 
results of this review (except, if the rate is zero or de minimis, 
i.e., less than 0.5 percent, no cash deposit will be required for that 
company); (2) for all PRC exporters of subject merchandise which have 
not been found to be entitled to a separate rate, the cash deposit rate 
will be the PRC-wide rate of 188.05 percent; and (3) for all non-PRC 
exporters of subject merchandise which have not received their own 
rate, the cash deposit rate will be the rate applicable to the PRC 
exporters that supplied that non-PRC exporter. These deposit 
requirements, when imposed, shall remain in effect until further 
notice.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    These results are issued and published in accordance with sections 
751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).

    April 5, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-8643 Filed 4-14-10; 8:45 am]
BILLING CODE 3510-DS-S