Seamless Refined Copper Pipe and Tube from the People's Republic of China: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 26716-26726 [2010-11344]
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Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Notices
Animals may be weighed, measured,
photographed, skin biopsied, flipper
and passive integrated transponder (PIT)
tagged, and released. The modification
authorizes the permit holder to use
satellite telemetry to assess habitat use
of sea turtles and study whether
relocation distances for sea turtles
captured in relocation trawlers are
appropriate. The permit holder may
attach transmitters to up to 12 green sea
turtles captured by their project by
research nets in St. Joseph Bay,
Apalachicola Bay, and St. Andrews Bay
and attach transmitters to up to 25
green, hawksbill (Eretmochelys
imbricata), Kemp’s ridley, and
loggerhead sea turtles (any combination)
already legally captured by relocation
trawlers in the St. Andrews Bay area.
These animals may also be flipper and
PIT tagged, measured, photographed,
tissue sampled and weighed before
release. The permit is valid through
April 30, 2013.
Issuance of this modification, as
required by the ESA was based on a
finding that such permit (1) was applied
for in good faith, (2) will not operate to
the disadvantage of such endangered or
threatened species, and (3) is consistent
with the purposes and policies set forth
in section 2 of the ESA.
Dated: May 6, 2010.
P. Michael Payne,
Chief, Permits, Conservation and Education
Division, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2010–11338 Filed 5–11–10; 8:45 am]
BILLING CODE 3510–22–S
International Trade Administration
[C–533–839]
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Carbazole Violet Pigment 23 from
India: Extension of Time Limit for Final
Results of Countervailing Duty
Administrative Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: May 12, 2010.
FOR FURTHER INFORMATION CONTACT:
Myrna Lobo or Elfi Blum, AD/CVD
Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington DC 20230;
telephone: (202) 482–2371 or (202) 482–
0197, respectively.
SUPPLEMENTARY INFORMATION:
15:00 May 11, 2010
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On January 7, 2010, the Department of
Commerce (the Department) published
the preliminary results of the
administrative review of the
countervailing duty order on carbazole
violet pigment 23 (CVP–23) from India.
See Carbazole Violet Pigment 23 from
India: Preliminary Results of
Countervailing Duty Administrative
Review, 75 FR 977 (January 7, 2010).
This administrative review covers the
period January 1, 2007 through
December 31, 2007. This review covers
one producer/exporter of the subject
merchandise to the United States,
Alpanil Industries Ltd. (Alpanil).
On February 12, 2010, the Department
issued a memorandum revising all case
deadlines. As explained in the
memorandum from the Deputy
Assistant Secretary for Import
Administration, the Department
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 from
Ronald Lorentzen, DAS for Import
Administration, Tolling of
Administrative Deadlines As a Result of
the Government Closure During the
Recent Snowstorm, dated February 12,
2010, a public document on file in the
Department’s Central Records Unit
(CRU) in Room 1117 of the main
Department building. Thus, all
deadlines in all proceedings were
extended by seven days. Consequently,
the deadline for the final results of this
review was revised from May 7, 2010 to
May 14, 2010.
Extension of Time Limit for Final
Results
DEPARTMENT OF COMMERCE
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Background
Pursuant to section 751(a)(3)(A) of the
Tariff Act of 1930, as amended (the Act),
and 19 CFR 351.213(h)(1), the
Department shall issue final results in
an administrative review of a
countervailing duty order within 120
days after the date on which notice of
the preliminary results was published in
the Federal Register. However, if the
Department determines that it is not
practicable to complete the review
within the time limits, section
751(a)(3)(A) of the Act and 19 CFR
351.213(h)(2) allow the Department to
extend the 120–day period up to 180
days.
Pursuant to section 751(a)(3)(A) of the
Act and 19 CFR 351.213(h)(2), we
determine that it is not practicable to
complete the results of this review
within the original time limit. The
Department had to request additional
information from Alpanil after the
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preliminary results. Consequently, the
Department needs additional time to
analyze this information and to consider
comments filed by the parties. In
accordance with section 751(a)(3)(A) of
the Act, the Department has decided to
extend the time limit for the final results
from 120 days to 145 days; the final
results will now be due no later than
June 8, 2010.
This notice is issued and published in
accordance with sections 751(a)(3)(A)
and 777(i)(1) of the Act.
Dated: May 6, 2010.
John M. Andersen,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. 2010–11320 Filed 5–11–10; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–964]
Seamless Refined Copper Pipe and
Tube from the People’s Republic of
China: Preliminary Determination of
Sales at Less Than Fair Value and
Postponement of Final Determination
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce
DATES: Effective Date: May 12, 2010.
SUMMARY: The Department of Commerce
(the ‘‘Department’’) has preliminarily
determined that seamless refined copper
pipe and tube (‘‘copper pipe and tube’’)
from the People’s Republic of China
(‘‘PRC’’) is being, or is likely to be, sold
in the United States at less than fair
value (‘‘LTFV’’), as provided in section
733 of the Tariff Act of 1930, as
amended (the ‘‘Act’’). The estimated
dumping margins are shown in the
‘‘Preliminary Determination’’ section of
this notice. Interested parties are invited
to comment on the preliminary
determination.
FOR FURTHER INFORMATION CONTACT:
Karine Gziryan or Shawn Higgins, AD/
CVD Operations, Office 4, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–4081 and (202)
482–0679, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 30, 2009, the
Department received a petition
concerning imports of copper pipe and
tube from the PRC and Mexico filed in
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proper form by Cerro Flow Products,
Inc., KobeWieland Copper Products,
LLC, Mueller Copper Tube Products,
Inc., and Mueller Copper Tube
Company, Inc. (collectively,
‘‘Petitioners’’).1 The Department
initiated antidumping duty
investigations of copper pipe and tube
from the PRC and Mexico on October
20, 2009.2
In the Initiation Notice, the
Department stated that it intended to
select PRC respondents based on
quantity and value (‘‘Q&V’’)
questionnaires.3 On October 21, 2009,
the Department requested Q&V
information from the eight companies
identified in the petition as potential
producers or exporters of copper pipe
and tube from the PRC.4 Additionally,
the Department 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 responses
to its Q&V questionnaire from the
following eleven companies: Golden
Dragon Precise Copper Tube Group, Inc.
(‘‘Golden Dragon’’), Hong Kong Hailiang
Metal Trading Limited (‘‘Hong Kong
Hailiang’’), Zhejiang Hailiang Co., Ltd.
(‘‘Zhejiang Hailiang’’), Sinochem Ningbo
Ltd. (‘‘Sinochem’’), Luvata Tube
(Zhongshan) Ltd. (‘‘Luvata Tube’’),
Foshan Hua Hong Copper Tube Co., Ltd.
(‘‘Foshan Hua Hong’’), Ningbo Jintian
Copper Tube Co. Ltd. (‘‘Ningbo Jintian’’),
Zhejiang Naile Copper Co., Ltd.
(‘‘Zhejiang Naile’’), Chinalco Luoyang
Copper Co., Ltd. (‘‘Chinalco’’), Zhejiang
Jiahe Pipes Inc. (‘‘Zhejiang Jiahe’’), and
Luvata Alltop (Zhongshan) Ltd. (‘‘Luvata
Alltop’’).5
On November 24, 2009, the
International Trade Commission (‘‘ITC’’)
preliminarily determined that there is a
reasonable indication that an industry
in the United States has been materially
1 See Petitions for the Imposition of Antidumping
Duties on Seamless Refined Copper Pipe and Tube
from the People’s Republic of China and Mexico
(September 30, 2009).
2 See Seamless Refined Copper Pipe and Tube
from the People’s Republic of China and Mexico:
Initiation of Antidumping Duty Investigations, 74
FR 55194 (October 27, 2009) (‘‘Initiation Notice’’).
3 See Initiation Notice, 74 FR at 55198.
4 See Letter from Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, to All
Interested Parties, ‘‘Antidumping Duty Investigation
of Seamless Refined Copper Pipe and Tube from the
People’s Republic of China: Quantity and Value
Questionnaire’’ (October 21, 2009).
5 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to John M. Andersen, Acting
Deputy Assistant Secretary for Antidumping and
Countervailing Duty Operations, ‘‘Respondent
Selection in the Antidumping Duty Investigation of
Seamless Refined Copper Pipe and Tube from the
People’s Republic of China’’ (December 3, 2009)
(‘‘Respondent Selection Memorandum’’).
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injured or threatened with material
injury by reason of imports of copper
pipe and tube from the PRC and
Mexico.6
On December 3, 2009, the Department
selected Golden Dragon, Hong Kong
Hailiang, and Zhejiang Hailiang as
mandatory respondents.7 On December
4, 2009, the Department issued
antidumping questionnaires to these
three companies. In January and
February 2010, Golden Dragon, Hong
Kong Hailiang, and Zhejiang Hailiang
submitted timely responses to sections
A, C, and D of the Department’s
antidumping questionnaire.
In November and December 2009, the
Department received timely filed
separate-rate applications from the
following six companies: Luvata Tube,
Ningbo Jintian, Zhejiang Naile,
Chinalco, Zhejiang Jiahe, and Luvata
Alltop.
The Department issued supplemental
questionnaires to Golden Dragon, Hong
Kong Hailiang, Zhejiang Hailiang,
Luvata Tube, Ningbo Jintian, and
Chinalco from January to April 2010.
The Department received responses to
its supplemental questionnaires from
Golden Dragon, Hong Kong Hailiang,
Zhejiang Hailiang, Luvata Tube, and
Ningbo Jintian from January to May
2010. From January to May 2010,
Petitioners submitted comments to the
Department regarding the submissions
and/or responses of Golden Dragon,
Hong Kong Hailiang, Zhejiang Hailiang,
Ningbo Jintian, and Chinalco.
On January 8, 2010, the Department
released a letter to interested parties
which listed potential surrogate
countries and invited interested parties
to comment on surrogate country and
surrogate value (‘‘SV’’) selection.8
Between February and March 2010,
Petitioners, Golden Dragon, Hong Kong
Hailiang, and Zhejiang Hailiang
submitted publicly available SV
information, comments, and rebuttal
comments on the selection of a
surrogate country and SVs. For a
discussion of the selection of the
surrogate country, see ‘‘Surrogate
Country’’ section below.
On February 12, 2010, Petitioners
requested a 50-day postponement of the
preliminary determination. On February
25, 2010, pursuant to section
6 See
Seamless Refined Copper Pipe and Tube
From China and Mexico, Investigation Nos. 731–
TA–1174–1175 (Preliminary), 74 FR 62595
(November 30, 2009).
7 See Respondent Selection Memorandum at 5.
8 See Letter from Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, to All
Interested Parties, ‘‘Antidumping Duty Investigation
of Seamless Refined Copper Pipe and Tube from the
People’s Republic of China’’ (January 8, 2010).
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733(c)(1)(A) of the Act and 19 CFR
351.205(e), the Department postponed
this preliminary determination by 50
days.9
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.
Thus, all deadlines in this segment of
the proceeding have been extended by
seven days. The revised deadline for the
final determination of this investigation
is now May 5, 2010.10
Period of Investigation
The period of investigation (‘‘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 (i.e.,
September, 2009).11
Postponement of Final Determination
and Extension of Provisional Measures
Pursuant to section 735(a)(2) of the
Act, on April 22, 2010, Zhejiang
Hailiang and Hong Kong Hailiang
requested that, in the event of an
affirmative preliminary determination
in this investigation, the Department
postpone its final determination by 60
days. Golden Dragon submitted an
identical request on April 23, 2010. In
these submissions, Zhejiang Hailiang,
Hong Kong Hailiang, and Golden
Dragon agreed to the application of the
provisional measures prescribed under
19 CFR 351.210(e)(2) until the date of
the final determination. Because our
preliminary determination is
affirmative, the respondents requesting
an extension of the final determination
and an extension of the provisional
measures accounts for a significant
proportion of exports of the
merchandise under consideration, and
no compelling reasons for denial exist,
the Department is extending the due
date for the final determination by 60
days. Suspension of liquidation will be
extended accordingly.
Scope of Investigation
For the purpose of this investigation,
the products covered are all seamless
circular refined copper pipes and tubes,
9 See Seamless Refined Copper Pipe and Tube
From the People’s Republic of China and Mexico:
Postponement of Preliminary Determinations of
Antidumping Duty Investigations, 75 FR 8677
(February 25, 2010).
10 See Memorandum to the Record from Ronald
Lorentzen, DAS for Import Administration,
regarding ‘‘Tolling of Administrative Deadlines As
a Result of the Government Closure During the
Recent Snowstorm,’’ (February 12, 2010).
11 See 19 CFR 351.204(b)(1).
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Federal Register / Vol. 75, No. 91 / Wednesday, May 12, 2010 / Notices
including redraw hollows, greater than
or equal to 6 inches (152.4 mm) in
length and measuring less than 12.130
inches (308.102 mm) (actual) in outside
diameter (‘‘OD’’), regardless of wall
thickness, bore (e.g., smooth, enhanced
with inner grooves or ridges),
manufacturing process (e.g., hot
finished, cold-drawn, annealed), outer
surface (e.g., plain or enhanced with
grooves, ridges, fins, or gills), end finish
(e.g., plain end, swaged end, flared end,
expanded end, crimped end, threaded),
coating (e.g., plastic, paint), insulation,
attachments (e.g., plain, capped,
plugged, with compression or other
fitting), or physical configuration (e.g.,
straight, coiled, bent, wound on spools).
The scope of this investigation covers,
but is not limited to, seamless refined
copper pipe and tube produced or
comparable to the American Society for
Testing and Materials (‘‘ASTM’’) ASTM–
B42, ASTM–B68, ASTM–B75, ASTM–
B88, ASTM–B88M, ASTM–B188,
ASTM–B251, ASTM–B251M, ASTM–
B280, ASTM–B302, ASTM–B306,
ASTM–359, ASTM–B743, ASTM–B819,
and ASTM–B903 specifications and
meeting the physical parameters
described therein. Also included within
the scope of this investigation are all
sets of covered products, including ‘‘line
sets’’ of seamless refined copper tubes
(with or without fittings or insulation)
suitable for connecting an outdoor air
conditioner or heat pump to an indoor
evaporator unit. The phrase ‘‘all sets of
covered products’’ denotes any
combination of items put up for sale
that is comprised of merchandise
subject to the scope.
‘‘Refined copper’’ is defined as: (1)
Metal containing at least 99.85 percent
by weight of copper; or (2) metal
containing at least 97.5 percent by
weight of copper, provided that the
content by weight of any other element
does not exceed the following limits:
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Element
Limiting content
percent by weight
Ag—Silver .....................
As—Arsenic ..................
Cd—Cadmium ..............
Cr—Chromium ..............
Mg—Magnesium ...........
Pb—Lead ......................
S—Sulfur ......................
Sn—Tin .........................
Te—Tellurium ...............
Zn—Zinc .......................
Zr—Zirconium ...............
Other elements (each) ..
0.25
0.5
1.3
1.4
0.8
1.5
0.7
0.8
0.8
1.0
0.3
0.3
Excluded from the scope of this
investigation are all seamless circular
hollows of refined copper less than 12
inches in length whose OD (actual)
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exceeds its length. The products subject
to this investigation are currently
classifiable under subheadings
7411.10.1030 and 7411.10.1090 of the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’). Products
subject to this investigation may also
enter under HTSUS subheadings
7407.10.1500, 7419.99.5050,
8415.90.8065, and 8415.90.8085.
Although the HTSUS subheadings are
provided for convenience and customs
purposes, the written description of the
scope of this investigation is dispositive.
Scope Comments
In accordance with the preamble to
the Department’s regulations,12 the
Department’s Initiation Notice 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. The
Department received comments and
scope exclusion requests from
BrassCraft Manufacturing,13 Johnson
Controls, Inc.,14 and National de Cobre,
S.A. de C.V.15 In a memorandum dated
concurrently with this notice, the
Department determined that the
merchandise included in these scope
exclusion requests are subject to this
investigation.16
Affiliation/Single Entity
Section 771(33) of the Act states that
the Department considers the following
entities to be affiliated: (A) Members of
a family, including brothers and sisters
(whether by whole or half blood),
spouse, ancestors, and lineal
descendants; (B) any officer or director
of an organization and such
organization; (C) partners; (D) employer
and employee; (E) any person directly or
indirectly owning, controlling, or
holding with power to vote, 5 percent or
more of the outstanding voting stock or
12 See Antidumping Duties; Countervailing
Duties, 62 FR 27296, 27323 (May 19, 1997)
(‘‘Preamble’’).
13 See Letter from BrassCraft Manufacturing to the
Secretary of Commerce, ‘‘Comments Requesting
Clarification of the Scope in the Investigation of
Seamless Refined Copper Pipe and Tube from the
People’s Republic of China and Mexico’’ (March 22,
2010).
14 See Letter from Johnson Controls, Inc. to the
Secretary of Commerce, ‘‘Seamless Refined Copper
Pipe and Tube from China and Mexico; Comments
of Johnson Controls, Inc.—Purchaser’’ (November
10, 2009).
15 See Letter from Nacional de Cobre, S.A. de C.V.
to the Secretary of Commerce, ‘‘Seamless Refined
Copper Pipe and Tube from Mexico: Comments on
Scope of Investigation’’ (March 29, 2010).
16 See Memorandum from George McMahon, Case
Analyst, Office 3, to Melissa Skinner, Director,
Office 3, ‘‘Seamless Refined Copper Pipe and Tube
from Mexico and the People’s Republic of China:
Scope Exclusion Requests’’ (May 5, 2010).
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shares of any organization and such
organization; (F) two or more persons
directly or indirectly controlling,
controlled by, or under common control
with, any person; and (G) any person
who controls any other person and such
other person. For purposes of affiliation,
section 771(33) of the Act states that a
person shall be considered to control
another person if the person is legally or
operationally in a position to exercise
restraint or direction over the other
person. In order to find affiliation
between companies, the Department
must find that at least one of the criteria
listed above is applicable to the
respondents. The Statement of
Administrative Action accompanying
the Uruguay Round Agreements Act
(‘‘SAA’’), H. Doc. No. 316, 103d Cong.,
2d Session at 838 (1994), indicates that
stock ownership is not the only
evidentiary factor that the Department
may consider to determine whether a
person is in a position to exercise
restraint or direction over another
person (e.g., control may be established
through corporate or family groupings,
or joint ventures and other means).17 To
the extent that the affiliation provisions
in section 771(33) of the Act do not
conflict with the Department’s
application of separate rates and the
statutory NME provisions in section
773(c) of the Act, the Department will
determine that exporters and/or
producers are affiliated if the facts of the
case support such a finding.18
The Department preliminarily
determines that two mandatory
respondents, Zhejiang Hailiang (a
producer/exporter) and Hong Kong
Hailiang (an exporter), as well as an
additional producer/exporter, Shanghai
Hailiang Copper Co., Ltd. (‘‘Shanghai
Hailiang’’) (collectively and hereinafter
the ‘‘Hailiang Group’’), are affiliated
pursuant to section 771(33) of the Act.
Based on the Department’s examination
of the evidence presented in the
questionnaire responses of Zhejiang
Hailiang and Hong Kong Hailiang, the
17 See Certain Fresh Cut Flowers From Colombia:
Final Results of Antidumping Duty Administrative
Reviews, 61 FR 42833, 42853 (August 19, 1996);
Certain Welded Carbon Steel Pipes and Tubes From
Thailand: Final Results of Antidumping Duty
Administrative Review, 62 FR 53808, 53810
(October 16, 1997).
18 See Certain Preserved Mushrooms From the
People’s Republic of China: Preliminary Results of
Sixth New Shipper Review and Preliminary Results
and Partial Rescission of Fourth Antidumping Duty
Administrative Review, 69 FR 10410, 10413 (March
5, 2004), unchanged in Certain Preserved
Mushrooms From the People’s Republic of China:
Final Results of Sixth Antidumping Duty New
Shipper Review and Final Results and Partial
Rescission of the Fourth Antidumping Duty
Administrative Review, 69 FR 54635 (September 9,
2004).
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Department determines that Zhejiang
Hailiang owns and controls both Hong
Kong Hailiang and Shanghai Hailiang.
Accordingly, the Department
preliminarily determines that those
parties are affiliated under sections
771(33)(E), (F), and (G) of the Act.19
Additionally, under its affiliated
single entity regulation, 19 CFR
351.401(f), the Department may collapse
affiliated producers where it finds that
producers have production facilities for
similar or identical products, and that a
significant potential for manipulation of
price or production exists. The
regulation addresses the specific
situation of affiliated producers.
However, the regulation is not
exhaustive of the situations that may
call for collapsing of affiliated entities,
and the Department has developed a
practice of collapsing entities that do
not qualify as producers, such as Hong
Kong Hailiang, which is an exporter.20
Based on the Department’s
examination of the evidence presented
in the questionnaire responses of
Zhejiang Hailiang and Hong Kong
Hailiang, the Department preliminarily
determines that Zhejiang Hailiang and
Shanghai Hailiang have similar
production facilities such that retooling
would not be required to shift
production from one company to
another.21 The Department further
determines that Zhejiang Hailiang, Hong
Kong Hailiang, and Shanghai Hailiang
have a significant potential for
manipulation of prices and production
because Zhejiang Hailiang owns and
controls Hong Kong Hailiang and
Shanghai Hailiang and because Zhejiang
Hailiang, Hong Kong Hailiang, and
Shanghai Hailiang have overlapping
managers and directors.22 The
Department, therefore, preliminarily
determines that Zhejiang Hailiang, Hong
Kong Hailiang, and Shanghai Hailiang
should be treated as a single entity for
purposes of the antidumping
19 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to Abdelali Elouaradia,
Director, AD/CVD Operations, Office 4,
‘‘Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People’s
Republic of China: Affiliation and Treatment as a
Single Entity of Zhejiang Hailiang Co., Ltd.,
Shanghai Hailiang Copper Co., Ltd., and Hong Kong
Hailiang Metal Trading Limited’’ (May 5, 2010) at
3–5 (‘‘Affiliation and Single Entity Memorandum’’).
20 See Notice of Final Determination of Sales at
Less Than Fair Value: Certain Frozen and Canned
Warmwater Shrimp From Brazil, 69 FR 76910
(December 23, 2004) and accompanying Issues and
Decision Memorandum at Comment 5.
21 See Affiliation and Single Entity Memorandum
at 3–4.
22 See Affiliation and Single Entity Memorandum
at 3–5.
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15:00 May 11, 2010
Jkt 220001
investigation of copper pipe and tube
from the PRC.
Non-Market Economy Treatment
The Department considers the PRC to
be a non-market economy (‘‘NME’’)
country.23 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,
the Department continues to treat the
PRC as an NME country for purposes of
this preliminary determination.
Surrogate Country
When the Department is investigating
imports from an NME country, section
773(c)(1) of the Act directs it to base
normal value (‘‘NV’’), in most
circumstances, on the NME producer’s
factors of production (‘‘FOPs’’) valued in
a surrogate market-economy country or
countries considered to be appropriate
by the Department. In accordance with
section 773(c)(4) of the Act, in valuing
the FOPs, the Department shall utilize,
to the extent possible, the prices or costs
of FOPs in one or more market-economy
countries that are at a level of economic
development comparable to that of the
NME country and are significant
producers of comparable merchandise.
The sources of the SVs that the
Department has used in this
investigation are discussed under the
‘‘Normal Value’’ section below.
The Department determined that
India, the Philippines, Indonesia,
Thailand, Ukraine, and Peru are
countries comparable to the PRC in
terms of economic development.24 Once
the countries that are economically
comparable to the PRC have been
identified, the Department selects an
appropriate surrogate country by
determining whether an economically
comparable country is a significant
producer of comparable merchandise
and whether the data for valuing FOPs
are both available and reliable.
On March 23, 2010, the Department
determined that it is appropriate to use
23 See, e.g., 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).
24 See Memorandum from Kelly Parkhill, Acting
Director, Office of Policy, to Robert Bolling,
Program Manager, AD/CVD Operations, Office 4,
‘‘Request for a List of Surrogate Countries for an
Investigation of Copper Pipe and Tube from the
People’s Republic of China’’ (January 7, 2010).
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India as a surrogate country pursuant to
section 773(c)(4) of the Act based on the
following: (1) it is at a similar level of
economic development to the PRC
pursuant to section 773(c)(4) of the Act;
(2) it is a significant producer of
comparable merchandise; and (3) the
Department has reliable data from India
that it can use to value the FOPs.25
Thus, the Department calculated NV
using Indian prices when available and
appropriate to the FOPs of Golden
Dragon and the Hailiang Group. The
Department obtained and relied upon
publicly available information wherever
possible.26 In accordance with 19 CFR
351.301(c)(3)(i), for the final
determination in an antidumping
investigation, interested parties may
submit publicly available information to
value the FOPs within 40 days after the
date of publication of the preliminary
determination.27
Separate Rates
In the Initiation Notice, the
Department notified parties of the
application process by which exporters
and producers may obtain separate rate
status in NME investigations.28 The
process requires exporters and
producers to submit a separate rate
application.29
25 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to Abdelali Elouaradia,
Director, AD/CVD Operations, Office 4,
‘‘Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People’s
Republic of China: Selection of a Surrogate
Country’’ (March 23, 2010).
26 See Memorandum to the File from Shawn
Higgins, International Trade Compliance Analyst,
AD/CVD Operations, Office 4, ‘‘Investigation of
Seamless Refined Copper Pipe and Tube from the
People’s Republic of China: Surrogate Value
Memorandum,’’ (May 5, 2010) (‘‘Surrogate Value
Memorandum’’).
27 In accordance with 19 CFR 351.301(c)(1), for
the final determination of this investigation,
interested parties may submit factual information to
rebut, clarify, or correct factual information
submitted by an interested party less than ten days
before, on, or after, the applicable deadline for
submission of such factual information. However,
the Department notes that 19 CFR 351.301(c)(1)
permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on
the record. The Department generally will not
accept the submission of additional, previously
absent-from-the-record alternative SV 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.
28 See Initiation Notice, 74 FR at 55198–99.
29 See Policy Bulletin 05.1: Separate-Rate Practice
and Application of Combination Rates in
Antidumping Investigations involving Non-Market
Economy Countries (April 5, 2005), at 6, available
at https://ia.ita.doc.gov/policy/bull05-1.pdf (‘‘Policy
Bulletin 05.1’’). Policy Bulletin 05.1 states, in
relevant part, ‘‘While continuing the practice of
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In proceedings involving NME
countries, the Department holds a
rebuttable presumption that all
companies within the country are
subject to government control and thus
should be assessed a single antidumping
duty rate. It is the Department’s policy
to assign all exporters of subject
merchandise in an NME country this
single rate unless an exporter can
demonstrate that it is sufficiently
independent so as to be entitled to a
separate rate. Exporters can demonstrate
this independence through the absence
of both de jure and de facto
governmental control over export
activities. The Department analyzes
each entity exporting the subject
merchandise under the test announced
in the Notice of Final Determination of
Sales at Less Than Fair Value: Sparklers
from the People’s Republic of China, 56
FR 20588 (May 6, 1991) (‘‘Sparklers’’), as
further developed in Notice of Final
Determination of Sales at Less Than
Fair Value: Silicon Carbide from the
People’s Republic of China, 59 FR 22585
(May 2, 1994) (‘‘Silicon Carbide’’).
However, if the Department determines
that a company is wholly foreign-owned
or located in a market economy, then a
separate rate analysis is not necessary to
determine whether it is independent
from government control.
Separate Rate Recipients
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
1. Joint Ventures Between Chinese and
Foreign Companies or Wholly ChineseOwned Companies
Three separate rate applicants in this
investigation, Ningbo Jintian, Zhejiang
Naile, and Zhejiang Jiahe (collectively,
‘‘Chinese SR Applicants’’) and the
mandatory respondents Golden Dragon
and the Hailiang Group, provided
evidence that they are either joint
ventures between Chinese and foreign
companies or wholly Chinese-owned
companies. The Department has
analyzed whether each of the three
Chinese SR Applicants and the
assigning separate rates only to exporters, all
separate rates that the Department will now assign
in its NME investigations will be specific to those
producers that supplied the exporter during the
period of investigation. Note, however, that one rate
is calculated for the exporter and all of the
producers which supplied subject merchandise to
it during the period of investigation. This practice
applied both to mandatory respondents receiving an
individually calculated separate rate as well as the
pool of non-investigated firms receiving the
weighted-average of the individually calculated
rates. This practice is referred to as the application
of ‘‘combination rates’’ because such rates apply to
specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an
exporter will apply only to merchandise both
exported by the firm in question and produced by
a firm that supplied the exporter during the period
of investigation.’’
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mandatory respondents have
demonstrated the absence of de jure and
de facto governmental control over their
respective export activities.
a. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) An absence
of restrictive stipulations associated
with an individual exporter’s business
and export license; (2) legislative
enactments decentralizing control of
companies; and (3) other formal
measures by the government
decentralizing control of companies.30
The evidence provided by the three
Chinese SR Applicants and the
mandatory respondents supports a
preliminary finding that all of the above
criteria have been satisfied.
The evidence provided by the three
Chinese SR Applicants and the
mandatory respondents 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 exporters’ business and
export licenses; (2) the existence of
applicable legislative enactments
decentralizing control of Chinese
companies; and (3) the implementation
of formal measures by the government
decentralizing control of Chinese
companies.
b. 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
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.31 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.
The evidence provided by the three
Chinese SR Applicants and the
mandatory respondents supports a
preliminary finding of de facto absence
of governmental control based on record
statements and supporting
documentation showing that the
companies: (1) Set their own export
prices independent of the government
and without the approval of a
government authority; (2) have the
authority to negotiate and sign contracts
and other agreements; (3) maintain
autonomy from the government in
making decisions regarding the
selection of management; and (4) retain
the proceeds of their respective export
sales and make independent decisions
regarding disposition of profits or
financing of losses.
Therefore, the evidence placed on the
record of this investigation by the three
Chinese SR Applicants and the
mandatory respondents demonstrates an
absence of de jure and de facto
government control under the criteria
identified in Sparklers and Silicon
Carbide. Accordingly, the Department
has preliminarily granted a separate rate
to the Chinese SR Applicants.32
2. Wholly Foreign-Owned
Two separate rate applicants in this
investigation, Luvata Alltop and Luvata
Tube, (‘‘Foreign-Owned SR
Applicants’’), provided evidence that
they are wholly owned by individuals
or companies located in market
economies in their separate rate
applications. Therefore, because they
are wholly foreign-owned and the
Department has no evidence indicating
that they are under the control of the
government of the PRC, a separate rates
analysis is not necessary to determine
whether these companies are
independent from government
control.33 Accordingly, the Department
has preliminarily granted a separate rate
to these Foreign-Owned SR
Applicants.34
Companies Not Receiving a Separate
Rate
On February 22, 2010, the Department
issued Chinalco a supplemental
questionnaire that requested that
Chinalco correct certain deficiencies in
its January 21, 2010, separate rate
32 See
‘‘Preliminary Determination’’ section below.
Notice of Final Determination of Sales at
Less Than Fair Value: Creatine Monohydrate From
the People’s Republic of China, 64 FR 71104
(December 20, 1999) (determining that the
respondent was wholly foreign-owned and, thus,
qualified for a separate rate).
34 See ‘‘Preliminary Determination’’ section below.
33 See
30 See
Sparklers, 56 FR at 20589.
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).
31 See
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application.35 The Department stated
that Chinalco did not provide (1)
documentation of its first sale by
invoice date of merchandise under
consideration to an unaffiliated
customer in the United States during the
POI, (2) documentation in support of
Chinalco’s certifications that it conducts
independent price negotiations and has
autonomy from the government in
making decisions regarding the
selection of management, (3) capital
verification reports, (4) consolidated
financial statements, (5) share transfer
agreements, (6) articles of incorporation,
and (7) an export certificate of approval.
On February 26, 2010, Chinalco
informed the Department that it cannot
provide the missing documentation.36
Therefore, because Chinalco did not
comply with the Department’s February
22, 2010, request for information, the
Department has determined that
Chinalco has failed to demonstrate an
absence of de jure and de facto
government control under the criteria
identified in Sparklers and Silicon
Carbide. Accordingly, the Department
has preliminarily determined not to
grant Chinalco a separate rate.
Additionally, in the Initiation Notice,
the Department requested that all
companies wishing to qualify for
separate rate status in this investigation
submit a separate rate application.37
Sinochem and Foshan Hua Hong
submitted timely responses to the
Department’s Q&V questionnaire but
did not provide separate rate
applications. Therefore Sinochem and
Foshan Hua Hong have not
demonstrated their eligibility for
separate rate status in this investigation.
As a result, the Department is treating
Sinochem and Foshan Hua Hong as part
of the PRC-wide entity.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Margins for Separate Rate Recipients
Through the evidence in their
applications, the Chinese SR Applicants
and the Foreign-Owned SR Applicants
have demonstrated their eligibility for a
separate rate. See the ‘‘Separate Rates’’
section above. The separate rate is
determined based on the estimated
weighted-average dumping margins
established for exporters and producers
35 See Letter from Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, to Chinalco
Luoyang Copper Co., Ltd., ‘‘Separate Rate
Application Supplemental Questionnaire’’
(February 22, 2010).
36 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to the File, ‘‘Antidumping
Investigation of Seamless Refined Copper Pipe and
Tube from the People’s Republic of China: Email
from Chinalco Luoyang Copper Co., Ltd.’’ (April 16,
2010).
37 See Initiation Notice, 74 FR at 55198–99.
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individually investigated, excluding
zero and de minimis margins or margins
based entirely on adverse facts available
(‘‘AFA’’).38 In this investigation both
mandatory respondents, Golden Dragon
and the Hailiang Group, have estimated
weighted-average dumping margins
which are above de minimis and which
are not based on total AFA. Therefore,
because there are only two relevant
weighted-average dumping margins for
this preliminary determination, the
separate rate is a simple-average of these
two values, which is 34.48 percent.39
Use of Facts Available and Adverse
Facts Available
Section 776(a) of the Act provides that
the Department shall apply ‘‘facts
otherwise available’’ (‘‘FA’’) if (1)
necessary information is not on the
record, or (2) an interested party or any
other person (A) withholds information
that has been requested, (B) fails to
provide information within the
deadlines established, or in the form
and manner requested by the
Department, subject to subsections (c)(1)
and (e) of section 782 of the Act, (C)
significantly impedes a proceeding, or
(D) provides information that cannot be
verified as provided by section 782(i) of
the Act.
Section 776(b) of the Act further
provides that the Department may use
an adverse inference in applying the
facts otherwise available when a party
has failed to cooperate by not acting to
the best of its ability to comply with a
request for information.40 Such an
adverse inference may include reliance
on information derived from the
petitions, the final determination, a
previous administrative review, or other
information placed on the record.
Hailiang Group
The Department requested on several
occasions that the Hailiang Group
provide its FOPs on a more specific
basis (i.e., control number (‘‘CONNUM’’)
specific, plant/division specific, or
product-group specific).41 On March 18,
38 See
section 735(c)(5)(A) of the Act.
section 735(c)(5)(B) of the Act.
40 See SAA at 870.
41 See Letter from Robert Bolling, Program
Manager, AD/CVD Operations, Office 4, to the
Hailiang Group, ‘‘Sections C&D Third Supplemental
Questionnaire’’ (April 28, 2010) at 2–3; Letter from
Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to the Hailiang Group,
‘‘Sections C&D Second Supplemental
Questionnaire’’ (March 29, 2010) at 5; Letter from
Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to the Hailiang Group,
‘‘Sections C&D Supplemental Questionnaire’’
(February 26, 2010) at 8–9; Letter from Robert
Bolling, Program Manager, AD/CVD Operations,
Office 4, to Zhejiang Hailiang, ‘‘Antidumping Duty
Investigation of Seamless Refined Copper Pipe and
39 See
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26721
2010, and April 12, 2010, the Hailiang
Group stated that it is not able to
provide the requested information to the
Department. However, the Hailiang
Group’s own information on the record
indicates that it has the ability to report
its FOPs on a product-group specific
basis.42 Because the Hailiang Group
continued to report FOP values that are
identical for all CONNUMs, despite the
Department’s multiple requests to
provide this data on a more specific
basis, all the information necessary for
the Department to calculate an accurate
dumping margin for the Hailiang Group
is not on the record and available for
use in the preliminary determination.
Since the Hailiang Group did not
provide the requested FOPs on a
product-group specific basis, this
necessary information was not available
on the record and, therefore, we have
determined, pursuant to section
776(a)(1) and (2)(B) of the Act, that it is
appropriate to base the Hailiang Group’s
preliminary dumping margin, in part,
on FA.
The Hailiang Group’s response to the
Department’s initial request for
CONNUM-specific FOPs simply stated
that it reported FOPs on a CONNUMspecific basis.43 However, in its original
section D response, Hailiang reported
FOP values that are identical for all
CONNUMs.44 These values were
calculated as the total consumption of
each input divided by the total
production quantity. On February 25,
2010, the Department again requested
that the Hailiang Group provide its
FOPs on a more specific basis. Once
again, the Hailiang Group responded to
the Department’s request by stating that
it was unable to provide the requested
data.45 Based on the Hailiang Group’s
April 12, 2010 submission, the record
Tube from the People’s Republic of China: Request
for Information’’ (December 4, 2010) at D–2.
42 See Letter from the Hailiang Group to the
Secretary of Commerce, ‘‘Certain Seamless Refined
Copper Pipe & Tube from the People’s Republic of
China: Supplemental Section D Questionnaire
Response of Hailiang Group’’ (March 19, 2010) at
Exhibit 6; Letter from the Hailiang Group to the
Secretary of Commerce, ‘‘Certain Seamless Refined
Copper Pipe & Tube from the People’s Republic of
China: Supplemental Section D Questionnaire
Response of Hailiang Group’’ (April 12, 2010) at
Exhibit 12.
43 See Letter from the Hailiang Group to the
Secretary of Commerce, ‘‘Certain Seamless Refined
Copper Pipe & Tube from the People’s Republic of
China: Section D Questionnaire Response of
Hailiang Group’’ (January 25, 2010) (‘‘Hailiang
Group Section D Response’’) at 4.
44 See Hailiang Group Section D Response at
Exhibit 1.
45 See Letter from the Hailiang Group to the
Secretary of Commerce, ‘‘Certain Seamless Refined
Copper Pipe & Tube from the People’s Republic of
China: Supplemental Section D Questionnaire
Response of Hailiang Group’’ (March 19, 2010) at 4.
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WReier-Aviles on DSKGBLS3C1PROD with NOTICES
indicates that the Hailiang Group has
the ability to report its FOPs on a
product-group specific basis. The
Hailiang Group’s failure to provide the
requested information has prevented the
Department from calculating an accurate
margin for the Hailiang Group.
Accordingly, the Department has
preliminarily determined that necessary
information is not on the record and
that the Hailiang Group has not
provided requested information.
Therefore, for the preliminary
determination, as partial FA, the
Department recalculated the FOPs
reported by the Hailiang Group to reflect
product-group specific production steps
and the corresponding processing yields
at each stage using information from the
Hailiang Group’s April 12, 2010
submission.46 On April 29, 2010, the
Department again requested that the
Hailiang Group provide its FOPs on a
product-group specific basis. The
Department will analyze this data for
the final determination.
PRC-Wide Entity
On October 21, 2009, the Department
requested Q&V information from the
eight companies that Petitioners
identified as potential exporters or
producers of copper pipe and tube from
the PRC. Additionally, the Department’s
Initiation Notice informed all potential
PRC exporters/manufacturers of subject
merchandise of the requirements to
respond to both the Department’s Q&V
questionnaire and the separate rate
application in order to receive
consideration for separate rate status.47
Two of the potential exporters/
manufacturers identified in the petition,
Qingdao Hongtai International Trading
Co., Ltd. and Zhejiang Hongtian Copper
Co., Ltd., did not respond to the
Department’s requests for Q&V
information. Furthermore, two
exporters/manufacturers, Sinochem and
Foshan Hua Hong, that submitted Q&V
information did not submit a separate
rate application. In addition, a third
exporter/manufacturer, Chinalco, who
submitted Q&V information as well as a
separate rate application, failed to
provide additional information
requested by the Department in order
for the Department to determine its
separate rate eligibility.
Therefore, the Department
preliminarily determines that there were
46 See Memorandum from Karine Gziryan,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to the File, ‘‘Seamless Refined
Copper Pipe and Tube from the People’s Republic
of China: Preliminary Analysis Memorandum for
the Hailiang Group’’ (May 5, 2010) (‘‘Hailiang Group
Analysis Memo’’).
47 See Initiation Notice, 74 FR at 55198–99.
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exports of merchandise under
investigation from PRC exporters/
manufacturers that did not respond to
the Department’s Q&V questionnaire,
and/or subsequently did not
demonstrate their eligibility for separate
rate status. As a result, the Department
is treating these PRC exporters/
manufacturers (‘‘non-responsive
companies’’) as part of the PRC-wide
entity.
Application of Total Adverse Facts
Available
As noted above, the Department has
determined that the companies that did
not submit Q&V information or who
failed to demonstrate that they operate
free of government control, are part of
the PRC-wide entity. Pursuant to section
776(a) of the Act, the Department finds
that the PRC-wide entity has failed to
respond to the Department’s
questionnaires, withheld required
information, and/or submitted
information that cannot be verified, thus
significantly impeding the proceeding.48
Accordingly, the Department has
preliminarily determined to base the
PRC-wide entity’s margin on FA.49
Further, because the PRC-wide entity
failed to cooperate by not acting to the
best of its ability to comply with the
Department’s request for information,
the Department preliminarily
determines that, when selecting from
among the FA, an adverse inference is
warranted for the PRC-wide entity
pursuant to section 776(b) of the Act.
Selection of the Adverse Facts Available
Rate
In deciding which facts to use as
AFA, section 776(b) of the Act and 19
CFR 351.308(c)(1) provide that the
Department may rely on information
derived from (1) The petition, (2) a final
determination in the investigation, (3)
any previous review or determination,
or (4) any information placed on the
record. In selecting a rate for AFA, the
Department selects a rate that is
sufficiently adverse ‘‘as to effectuate the
purpose of the facts available rule to
induce respondents to provide the
Department with complete and accurate
48 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).
49 See section 776(a) of the Act.
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information in a timely manner.’’ 50
Further, it is the Department’s practice
to select a rate that ensures ‘‘that the
party does not obtain a more favorable
result by failing to cooperate than if it
had cooperated fully.’’ 51 It is the
Department’s practice to select, as AFA,
the higher of the (a) highest margin
alleged in the petition, or (b) the highest
calculated rate of any respondent in the
investigation.52 In the instant
investigation, as AFA, the Department
has preliminarily assigned to the PRCwide entity, including companies that
did not respond to the Department’s
Q&V questionnaire or establish their
eligibility for a separate rate, the highest
rate on the record of this proceeding,
which is the 60.50 percent margin from
the petition.53 The Department
preliminarily determines that this
information is the most appropriate
from the available sources to effectuate
the purposes of AFA. The Department
will consider all margins on the record
at the time of the final determination for
the purpose of determining the most
appropriate AFA rate for the PRC-wide
entity.
The dumping margin for the PRCwide entity applies to all entries of the
merchandise under investigation except
for entries of merchandise under
investigation from the exporter/
manufacturer combinations listed in the
chart in the ‘‘Preliminary
Determination’’ section below.
Corroboration of Information
Section 776(c) of the Act provides
that, when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation as FA, it must, to the
extent practicable, corroborate that
information from independent sources
reasonably at its disposal. Secondary
information is described as ‘‘information
derived from the petition that gave rise
to the investigation or review, the final
determination concerning merchandise
subject to this investigation, or any
previous review under section 751
50 See Notice of Final Determination of Sales at
Less Than Fair Value: Static Random Access
Memory Semiconductors From Taiwan, 63 FR 8909,
8932 (February 23, 1998).
51 See Brake Rotors From the People’s Republic of
China: Final Results and Partial Rescission of the
Seventh Administrative Review; Final Results of the
Eleventh New Shipper Review, 70 FR 69937, 69939
(November 18, 2005) (quoting SAA accompanying
the Uruguay Round Agreements Act, H. Doc. No.
316, 103d Cong., 2d Session at 870 (1994)).
52 See Final Determination of Sales at Less Than
Fair Value: Certain Cold-Rolled Flat-Rolled Carbon
Quality Steel Products From The People’s Republic
of China, 65 FR 34660 (May 31, 2000) and
accompanying Issues and Decision Memorandum at
‘‘Facts Available.’’
53 See Initiation Notice, 74 FR at 55198.
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concerning the merchandise under
investigation.’’ 54 To ‘‘corroborate’’
means that the Department will satisfy
itself that the secondary information to
be used has probative value.
Independent sources used to corroborate
may include, for example, published
price lists, official import statistics and
customs data, and information obtained
from interested parties during the
particular investigation. To corroborate
secondary information, the Department
will, to the extent practicable, examine
the reliability and relevance of the
information used.55
The AFA rate that the Department
used is the 60.50 percent rate from the
petition. Petitioners’ methodology for
calculating the United States price and
NV in the petition is discussed in the
Initiation Notice.56 To corroborate the
AFA margin that the Department
selected, the Department compared this
margin to the margins found for the
mandatory respondents, Golden Dragon
and the Hailiang Group. The
Department found that the margin of
60.50 percent has probative value
because it is in the range of the modelspecific margins that the Department
found for the Hailiang Group.57
Accordingly, the Department finds that
the rate of 60.50 percent is corroborated
within the meaning of section 776(c) of
the Act.
Fair Value Comparison
To determine whether sales of copper
pipe and tube to the United States by
Golden Dragon and the Hailiang Group
were made at LTFV, the Department
compared export price (‘‘EP’’) and
constructed export price (‘‘CEP’’) to NV,
as described in the ‘‘U.S. Price’’ and
‘‘Normal Value’’ sections of this notice.
U.S. Price
In accordance with section 772(a) of
the Act, the Department used EP as the
basis for U.S. price for Golden Dragon’s
and the Hailiang Group’s sales where
the first sale to unaffiliated purchasers
was made prior to importation and the
54 See
SAA at 870.
Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, From Japan, and Tapered
Roller Bearings, Four Inches or Less in Outside
Diameter, and Components Thereof, From Japan;
Preliminary Results of Antidumping Duty
Administrative Reviews and Partial Termination of
Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), unchanged in Tapered Roller
Bearings and Parts Thereof, Finished and
Unfinished, From Japan, and Tapered Roller
Bearings, Four Inches or Less in Outside Diameter,
and Components Thereof, From Japan; Final
Results of Antidumping Duty Administrative
Reviews and Termination in Part, 62 FR 11825
(March 13, 1997).
56 See Initiation Notice, 74 FR at 55198.
57 See Hailiang Group Analysis Memo.
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55 See
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use of CEP was not otherwise
warranted. In accordance with section
772(c) of the Act, the Department
calculated EP for Golden Dragon and the
Hailiang Group by deducting the
following expenses from the starting
price (gross unit price) charged to the
first unaffiliated customer in the United
States: foreign inland freight from the
plant to the port of exportation, foreign
brokerage and handling, international
freight, and marine insurance.
Additionally, the Department based
movement expenses on SVs where the
service was purchased from a PRC
company.58 For details regarding our EP
calculations, see Golden Dragon
Analysis Memo and the Hailiang Group
Analysis Memo.
In accordance with section 772(b) of
the Act, the Department used CEP as the
basis for U.S. price for Golden Dragon’s
sales where Golden Dragon first sold
subject merchandise to its affiliated
company in the United States, which in
turn sold subject merchandise to
unaffiliated U.S. customers. In
accordance with section 772(b) of the
Act, CEP is the price at which the
merchandise under investigation is first
sold (or agreed to be sold) in the United
States before or after the date of
importation by or for the account of the
producer or exporter of such
merchandise or by a seller affiliated
with the producer or exporter, to a
purchaser not affiliated with the
producer or exporter, as adjusted under
sections 772(c) and (d) of the Act. The
Department calculated CEP for Golden
Dragon based on delivered prices to
unaffiliated purchasers in the United
States and made deductions, where
applicable, from the U.S. sales price for
movement expenses in accordance with
section 772(c)(2)(A) of the Act. These
movement expenses included foreign
inland freight from the plant to the port
of exportation, international freight,
marine insurance, U.S. customs duty,
U.S. inland freight from port to the
warehouse, and U.S. inland freight from
the warehouse to the customer. In
accordance with section 772(d)(1) of the
Act, the Department deducted credit
expenses and indirect selling expenses
from the U.S. price, all of which relate
to commercial activity in the United
States. Finally, the Department
deducted CEP profit, in accordance with
sections 772(d)(3) and 772(f) of the Act.
58 See Memorandum from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD
Operations, Office 4, to the File, ‘‘Seamless Refined
Copper Pipe and Tube from the People’s Republic
of China: Preliminary Analysis Memorandum for
Golden Dragon Precise Copper Tube Group, Inc.’’
(May 5, 2010) (‘‘Golden Dragon Analysis Memo’’);
Hailiang Group Analysis Memo.
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26723
For details regarding the CEP
calculation, see Golden Dragon Analysis
Memo.
Normal Value
Section 773(c)(1) of the Act provides
that the Department shall determine NV
using an FOP methodology if the
merchandise is exported from an NME
and the information does not permit the
calculation of NV using home-market
prices, third-country prices, or
constructed value under section 773(a)
of the Act. The Department bases NV on
FOPs because the presence of
government controls on various aspects
of NMEs renders price comparisons and
the calculation of production costs
invalid under the Department’s normal
methodologies.59
As the basis for NV, Golden Dragon
and the Hailiang Group provided FOPs
used in each stage for producing copper
pipe and tube. Consistent with section
773(c)(1)(B) of the Act, it is the
Department’s practice to value the FOPs
that a respondent uses to produce the
merchandise under consideration.
Factor Valuation Methodology
In accordance with section 773(c) of
the Act, the Department calculated NV
based on FOP data reported by Golden
Dragon and the Hailiang Group. To
calculate NV, the Department
multiplied the reported per-unit factorconsumption rates by publicly available
Indian SVs. In selecting the SVs, the
Department considered the quality,
specificity, and contemporaneity of the
data.60 As appropriate, the Department
adjusted input prices by including
freight costs to make them delivered
prices. Specifically, the Department
added to Indian import SVs a surrogate
freight cost using the shorter of the
reported distance from the domestic
supplier to the factory or the distance
from the nearest seaport to the factory
where appropriate. This adjustment is
in accordance with the Court of Appeals
59 See, e.g., Preliminary Determination of Sales at
Less Than Fair Value, Affirmative Critical
Circumstances, In Part, and Postponement of Final
Determination: Certain Lined Paper Products from
the People’s Republic of China, 71 FR 19695, 19703
(April 17, 2006), unchanged in 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 (September 8,
2006).
60 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; 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.
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for the Federal Circuit’s decision in
Sigma Corp. v. United States, 117 F.3d
1401, 1407–08 (Fed. Cir. 1997). A
detailed description of all SVs used for
Golden Dragon and the Hailiang Group
can be found in the Surrogate Value
Memorandum.61
Golden Dragon and the Hailiang
Group each reported that one of their
raw material inputs (i.e., copper) was
sourced from market economy countries
and paid for in market economy
currencies. Pursuant to 19 CFR
351.408(c)(1), when a respondent
sources inputs from a market economy
supplier in meaningful quantities (i.e.,
not insignificant quantities), the
Department normally will use the actual
price paid by the respondent for those
inputs.62 Because information reported
by Golden Dragon and the Hailiang
Group demonstrates that they each
purchased significant quantities (i.e., 33
percent or more) of copper from market
economy suppliers, the Department
used each respondent’s actual market
economy purchase prices of copper to
value each of their FOPs for this input.63
Where appropriate, freight expenses
were added to the market economy
prices of this input. When Golden
Dragon or the Hailiang Group made
market economy copper purchases that
may have been dumped or subsidized,
are not bona fide, or are otherwise not
acceptable for use in a dumping
calculation, the Department excluded
them from the numerator of the ratio to
ensure a fair determination of whether
valid market economy purchases meet
the 33-percent threshold.64
In accordance with the Department’s
practice, the Department used data from
the Indian import statistics in the World
Trade Atlas (‘‘WTA’’) and other publicly
available Indian sources in order to
calculate SVs for Golden Dragon and the
Hailiang Group’s FOPs (i.e., direct
materials, energy, packing materials)
and certain movement expenses. In
selecting the best available information
for valuing FOPs in accordance with
section 773(c)(1) of the Act, the
Department’s practice is to select, to the
extent practicable, SVs which are nonexport average values, most
contemporaneous with the POI,
product-specific, and tax-exclusive.65
61 See Surrogate Value Memorandum at Exhibits
1 and 2.
62 See Preamble, 62 FR at 27366.
63 See Antidumping Methodologies: Market
Economy Inputs, Expected Non-Market Economy
Wages, Duty Drawback; and Request for Comments,
71 FR 61716, 61717 (October 19, 2006)
(‘‘Antidumping Methodologies’’).
64 See Antidumping Methodologies, 71 FR at
61717–18.
65 See, e.g., Notice of Preliminary Determination
of Sales at Less Than Fair Value, Negative
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The record shows that data in the WTA
Indian import statistics, as well as those
from the other Indian sources, are
contemporaneous with the POI,
product-specific, and tax-exclusive.66 In
those instances where the Department
could not obtain publicly available
information contemporaneous to the
POI with which to value factors, the
Department adjusted the SVs using,
where appropriate, the Indian
Wholesale Price Index as published in
the International Financial Statistics of
the International Monetary Fund.67
Furthermore, with regard to the
Indian import-based SVs, the
Department disregarded import prices
that it has reason to believe or suspect
may be subsidized. The Department has
reason to believe or suspect that prices
of inputs from Indonesia, South Korea,
and Thailand may have been
subsidized. The Department has found
in other proceedings that these
countries maintain broadly available,
non-industry-specific export subsidies
and, therefore, it is reasonable to infer
that all exports to all markets from these
countries may be subsidized.68 Further,
guided by the legislative history, it is
the Department’s practice not to
conduct a formal investigation to ensure
that such prices are not subsidized.69
Rather, the Department bases its
decision on information that is available
to it at the time it makes its
determination.70 Therefore, the
Department has not used prices from
these countries in calculating the Indian
import-based SVs. Additionally, the
Department disregarded prices from
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).
66 See Surrogate Value Memorandum at Exhibits
1 and 2.
67 See Surrogate Value Memorandum at Exhibit 3.
68 See Notice of Final Determination of Sales at
Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain
Color Television Receivers From the People’s
Republic of China, 69 FR 20594 (April 16, 2004)
and accompanying Issues and Decision
Memorandum at Comment 7.
69 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.
70 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) (‘‘PET
Film from China’’), 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).
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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.71
For direct, indirect, and packing
labor, consistent with 19 CFR
351.408(c)(3), the Department used the
PRC regression-based wage rate as
reported on Import Administration’s
home page, https://ia.ita.doc.gov/wages/
index.html, 2007 Income Data (Revised:
Dec 2009), ‘‘Expected Wages Of Selected
Non-Market Economy Countries,
Expected Wage Calculation; 2007 GNI
Data, Regression Analysis: 2007 GNI
Data.’’ Because this regression-based
wage rate does not separate the labor
rates into different skill levels or types
of labor, the Department applied the
same wage rate to all skill levels and
types of labor reported by the
respondent.72
The Department valued truck freight
expenses using a per-unit average rate
calculated from data on the infobanc
Web site: https://www.infobanc.com/
logistics/logtruck.htm>. The logistics
section of this Web site contains inland
freight truck rates between many large
Indian cities. The value is
contemporaneous with the POI.73
The Department 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
entitled ‘‘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,
the Department is not adjusting the
average value for inflation.74
The Department calculated the SV for
natural gas based upon the 2008–2009
annual report of GAIL (India) Limited.75
The Department valued water using
data from the Maharashtra Industrial
Development Corporation https://
midcindia.org as it includes a wide
range of industrial water tariffs. This
source provides industrial water rates
71 See
PET Film from China, 73 FR at 24559.
Surrogate Value Memorandum at Exhibit 8.
73 See Surrogate Value Memorandum at Exhibit
11.
74 See Surrogate Value Memorandum at Exhibit
11.
75 See Surrogate Value Memorandum at Exhibit 7.
72 See
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within the Maharashtra province for
April 2009 through June 2009.76
The Department valued brokerage and
handling using a simple average of the
brokerage and handling costs reported
in public submissions filed in three
antidumping duty cases. Specifically,
the Department averaged the public
brokerage and handling expenses
reported by Navneet Publications (India)
Ltd. in the 2007–2008 administrative
review of certain lined paper products
from India, Essar Steel Limited in the
2006–2007 antidumping duty
administrative review of hot-rolled
carbon steel flat products from India,
and Himalya International Ltd. in the
2005–2006 administrative review of
certain preserved mushrooms from
India. The Department adjusted the
average brokerage and handling rate for
inflation.77
To value factory overhead, selling,
general, and administrative expenses,
and profit, the Department used the
factory overhead, selling, general and
administrative expenses, and profit data
from three Indian companies, Mehta
Tubes Limited, Multimetals Limited,
and Nissan Copper Limited, producers
of merchandise comparable to the
merchandise under consideration, for
the fiscal year April 1, 2008, through
March 31, 2009. The Department did
not rely on two companies’ financial
statements on the record, namely the
financial statements of Vaishali Metals
Private Limited (‘‘Vaishali Metals’’) and
Mukesh Metal Industries Pvt.
Ltd.(‘‘Mukesh Metals’’).78 The
Department did not rely on the financial
statements of Vaishali Metals because
certain schedules in the financial
statements of Vaishali Metals are
incomplete and/or not provided. The
Department has an established practice
of rejecting financial statements of
surrogate producers whose financial
statements are incomplete.79
Additionally, the Department did not
rely on the financial statements of
Mukesh Metals because the Department
has determined that Mukesh Metals’
financial statements do not provide
sufficient information to determine
whether Mukesh Metals’ ‘‘job work’’
income is an offset to direct labor,
manufacturing income, or simply a
revenue item. Therefore, the Department
cannot determine whether it is
appropriate to classify ‘‘job work’’
income as an offset to manufacturing,
labor, and energy, manufacturing
overhead, or to totally exclude it.80
Currency Conversion
The Department made currency
conversions into U.S. dollars, in
accordance with section 773A(a) of the
Act, based on the exchange rates in
effect on the dates of the U.S. sales as
certified by the Federal Reserve Bank.
Verification
As provided in section 782(i)(1) of the
Act, the Department intends to verify
the information upon which it will rely
in making its final determination.
Combination Rates
In the Initiation Notice, the
Department stated that it would
calculate combination rates for certain
respondents that are eligible for a
separate rate in this investigation.81 This
practice is described in Policy Bulletin
05.1, available at https://www.trade.gov/
ia.
Preliminary Determination
The Department preliminarily
determines that the following dumping
margins exist for the period January
2009 through June 2009:
Weightedaverage percent
margin
Exporter
Producer
Golden Dragon Precise Copper Tube Group, Inc ....................
Zhejiang Hailiang Co., Ltd.; Hong Kong Hailiang Metal Trading Limited; Shanghai Hailiang Copper Co., Ltd.
Zhejiang Naile Copper Co., Ltd ................................................
Zhejiang Jiahe Pipes Inc ..........................................................
Luvata Tube (Zhongshan) Ltd ..................................................
Luvata Tube (Zhongshan) Ltd ..................................................
Luvata Alltop (Zhongshan) Ltd .................................................
Ningbo Jintian Copper Tube Co. Ltd ........................................
PRC-Wide Entity .......................................................................
Golden Dragon Precise Copper Tube Group, Inc ...................
Zhejiang Hailiang Co., Ltd.; Shanghai Hailiang Copper Co.,
Ltd.
Zhejiang Naile Copper Co., Ltd ...............................................
Zhejiang Jiahe Pipes Inc ..........................................................
Luvata Tube (Zhongshan) Ltd .................................................
Luvata Alltop (Zhongshan) Ltd .................................................
Luvata Alltop (Zhongshan) Ltd .................................................
Ningbo Jintian Copper Tube Co. Ltd .......................................
PRC-Wide Entity ......................................................................
Disclosure
The Department 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).
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Suspension of Liquidation
In accordance with section 733(d) of
the Act, the Department will instruct
U.S. Customs and Border Protection
(‘‘CBP’’) to suspend liquidation of all
entries of copper pipe and tube from the
PRC as described in the ‘‘Scope of
76 See
77 See
Surrogate Value Memorandum at Exhibit 6.
Surrogate Value Memorandum at Exhibit
10.
78 See
Surrogate Value Memorandum at Exhibit 9.
Certain Tissue Paper Products From the
People’s Republic of China: Final Results and
79 See
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10.26
58.69
34.48
34.48
34.48
34.48
34.48
34.48
60.50
Investigation’’ section, entered, or
withdrawn from warehouse, for
consumption on or after the date of
publication of this notice in the Federal
Register. The Department will instruct
CBP to require a cash deposit or the
posting of a bond equal to the weightedaverage amount by which the normal
value exceeds U.S. price, as indicated
above.
International Trade Commission
Notification
In accordance with section 733(f) of
the Act, the Department has notified the
ITC of our preliminary affirmative
determination of sales at LTFV. If the
Department’s final determination is
affirmative, the ITC will determine
before the later of 120 days after the date
of this preliminary determination or 45
days after our final determination
whether imports of copper pipe and
tube from the PRC are materially
injuring, or threatening material injury
Partial Rescission of the 2007–2008 Antidumping
Duty Administrative Review and Determination Not
To Revoke in Part, 74 FR 52176 (October 9, 2009)
and accompanying Issues and Decision
Memorandum at Comment 5.
80 See Amended Final Results of Antidumping
Duty Administrative Review and New Shipper
Reviews: Wooden Bedroom Furniture From the
People’s Republic of China, 72 FR 46957 (August
22, 2007) and accompanying Issues and Decision
Memorandum at Comment 23.
81 See Initiation Notice, 74 FR at 55199.
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to, the U.S. industry.82 As the
Department is postponing the deadline
for our final determination to 135 days
from the date of the publication of this
preliminary determination, the ITC will
make its final determination no later
than 45 days after our final
determination.
WReier-Aviles on DSKGBLS3C1PROD with NOTICES
Case briefs or other written comments
may be submitted to the Assistant
Secretary for Import Administration no
later than seven days after the date on
which the final verification report is
issued in this proceeding and rebuttal
briefs limited to issues raised in case
briefs and must be received no later
than five days after the deadline date for
case briefs.83 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 timely requested, the
Department 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, the
Department intends to hold the hearing
two days after the deadline of
submission of rebuttal briefs at the U.S.
Department of Commerce, 14th Street
and Constitution Avenue, 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.84 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.
82 See
section 735(b)(2) of the Act.
19 CFR 351.309(c)(1)(i) and (d).
84 See 19 CFR 351.310(c).
83 See
15:00 May 11, 2010
[FR Doc. 2010–11344 Filed 5–11–10; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
Public Comment
VerDate Mar<15>2010
Dated: May 5, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
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International Trade Administration
[A–201–838]
Seamless Refined Copper Pipe and
Tube From Mexico: Notice of
Preliminary Determination of Sales at
Less Than Fair Value and
Postponement of Final Determination
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of
Commerce (‘‘the Department’’)
preliminarily determines that seamless
refined copper pipe and tube (‘‘copper
pipe and tube’’) from Mexico is being, or
is likely to be, sold in the United States
at less than fair value (‘‘LTFV’’), as
provided in section 733(b)(1)(A) of the
Tariff Act of 1930, as amended (‘‘the
Act’’). The estimated margins of sales at
LTFV are listed in the ‘‘Suspension of
Liquidation’’ section of this notice.
Interested parties are invited to
comment on this preliminary
determination. Pursuant to a request
submitted on behalf of the respondents,
IUSA S.A. de C.V. (‘‘IUSA’’) and
Nacional de Cobre, S.A. de C.V.
(‘‘Nacobre’’), we are postponing for 60
days the final determination and
extending provisional measures from a
four-month period to not more than six
months. Accordingly, we will make our
final determination not later than 135
days after publication of the preliminary
determination.
EFFECTIVE DATE: May 12, 2010.
FOR FURTHER INFORMATION CONTACT: Joy
Zhang or George McMahon, AD/CVD
Operations, Office 3, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington DC 20230;
telephone: (202) 482–1168 or (202) 482–
1167, respectively.
SUPPLEMENTARY INFORMATION:
Background
On October 20, 2009, the Department
initiated the antidumping duty
investigation of copper pipe and tube
from Mexico. See Seamless Refined
Copper Pipe and Tube from the People’s
Republic of China and Mexico:
Initiation of Antidumping Duty
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Investigations, 74 FR 55194 (October 27,
2009) (‘‘Initiation Notice’’). The
petitioners in this investigation are
Cerro Flow Products, Inc., KobeWieland
Copper Products, LLC, Mueller Copper
Tube Products, Inc., and Mueller
Copper Tube Company, Inc.
(collectively, ‘‘Petitioners’’).
The Department 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. See Initiation Notice,
74 FR at 55194. See also Antidumping
Duties; Countervailing Duties, 62 FR
27296, 27323 (May 19, 1997). For
further details, see the ‘‘Scope
Comments’’ section of this notice,
below. The Department also set aside a
time for parties to comment on product
characteristics for use in the
antidumping duty questionnaire. During
November 2009, we received product
characteristic comments from the
Petitioners and the respondents, IUSA
and Nacobre, Mexican producers and
exporters of the subject merchandise.
For an explanation of the product–
comparison criteria used in this
investigation, see the ‘‘Product
Comparisons’’ section of this notice,
below.
On November 30, 2009, the United
States International Trade Commission
(‘‘ITC’’) published its affirmative
preliminary determination that that
there is a reasonable indication that an
industry in the United States is
materially injured or threatened with
material injury, by reason of imports
from China and Mexico of copper pipe
and tube, and the ITC notified the
Department of its finding. See Seamless
Refined Copper Pipe and Tube From
China and Mexico, 74 FR 62595
(November 30, 2009); see also USITC
Publication 4116 (November 2009),
entitled Seamless Refined Copper Pipe
and Tube from China and Mexico:
Investigation Nos. 731–TA–1174–1175
(Preliminary).
On December 2, 2009, we selected
IUSA and Nacobre as the mandatory
respondents in this investigation and
issued the Department’s antidumping
duty questionnaire to both respondents.
See Memorandum entitled:
‘‘Antidumping Duty Investigation of
Seamless Refined Copper Pipe and Tube
from Mexico Selection of Respondents
for Individual Review,’’ dated December
2, 2009. IUSA and Nacobre submitted
responses to section A (i.e., the section
covering general information about the
company) of the antidumping duty
questionnaire on December 24, 2009,
and sections B (i.e., the section covering
comparison market sales), C (i.e., the
E:\FR\FM\12MYN1.SGM
12MYN1
]]>Agencies
[Federal Register Volume 75, Number 91 (Wednesday, May 12, 2010)]
[Notices]
[Pages 26716-26726]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11344]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-964]
Seamless Refined Copper Pipe and Tube from the People's Republic
of China: Preliminary Determination of Sales at Less Than Fair Value
and Postponement of Final Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce
DATES: Effective Date: May 12, 2010.
SUMMARY: The Department of Commerce (the ``Department'') has
preliminarily determined that seamless refined copper pipe and tube
(``copper pipe and tube'') from the People's Republic of China
(``PRC'') is being, or is likely to be, sold in the United States at
less than fair value (``LTFV''), as provided in section 733 of the
Tariff Act of 1930, as amended (the ``Act''). The estimated dumping
margins are shown in the ``Preliminary Determination'' section of this
notice. Interested parties are invited to comment on the preliminary
determination.
FOR FURTHER INFORMATION CONTACT: Karine Gziryan or Shawn Higgins, AD/
CVD Operations, Office 4, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
4081 and (202) 482-0679, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 30, 2009, the Department received a petition
concerning imports of copper pipe and tube from the PRC and Mexico
filed in
[[Page 26717]]
proper form by Cerro Flow Products, Inc., KobeWieland Copper Products,
LLC, Mueller Copper Tube Products, Inc., and Mueller Copper Tube
Company, Inc. (collectively, ``Petitioners'').\1\ The Department
initiated antidumping duty investigations of copper pipe and tube from
the PRC and Mexico on October 20, 2009.\2\
---------------------------------------------------------------------------
\1\ See Petitions for the Imposition of Antidumping Duties on
Seamless Refined Copper Pipe and Tube from the People's Republic of
China and Mexico (September 30, 2009).
\2\ See Seamless Refined Copper Pipe and Tube from the People's
Republic of China and Mexico: Initiation of Antidumping Duty
Investigations, 74 FR 55194 (October 27, 2009) (``Initiation
Notice'').
---------------------------------------------------------------------------
In the Initiation Notice, the Department stated that it intended to
select PRC respondents based on quantity and value (``Q&V'')
questionnaires.\3\ On October 21, 2009, the Department requested Q&V
information from the eight companies identified in the petition as
potential producers or exporters of copper pipe and tube from the
PRC.\4\ Additionally, the Department 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 responses to
its Q&V questionnaire from the following eleven companies: Golden
Dragon Precise Copper Tube Group, Inc. (``Golden Dragon''), Hong Kong
Hailiang Metal Trading Limited (``Hong Kong Hailiang''), Zhejiang
Hailiang Co., Ltd. (``Zhejiang Hailiang''), Sinochem Ningbo Ltd.
(``Sinochem''), Luvata Tube (Zhongshan) Ltd. (``Luvata Tube''), Foshan
Hua Hong Copper Tube Co., Ltd. (``Foshan Hua Hong''), Ningbo Jintian
Copper Tube Co. Ltd. (``Ningbo Jintian''), Zhejiang Naile Copper Co.,
Ltd. (``Zhejiang Naile''), Chinalco Luoyang Copper Co., Ltd.
(``Chinalco''), Zhejiang Jiahe Pipes Inc. (``Zhejiang Jiahe''), and
Luvata Alltop (Zhongshan) Ltd. (``Luvata Alltop'').\5\
---------------------------------------------------------------------------
\3\ See Initiation Notice, 74 FR at 55198.
\4\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to All Interested Parties, ``Antidumping Duty
Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Quantity and Value Questionnaire''
(October 21, 2009).
\5\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to John M.
Andersen, Acting Deputy Assistant Secretary for Antidumping and
Countervailing Duty Operations, ``Respondent Selection in the
Antidumping Duty Investigation of Seamless Refined Copper Pipe and
Tube from the People's Republic of China'' (December 3, 2009)
(``Respondent Selection Memorandum'').
---------------------------------------------------------------------------
On November 24, 2009, the International Trade Commission (``ITC'')
preliminarily determined that there is a reasonable indication that an
industry in the United States has been materially injured or threatened
with material injury by reason of imports of copper pipe and tube from
the PRC and Mexico.\6\
---------------------------------------------------------------------------
\6\ See Seamless Refined Copper Pipe and Tube From China and
Mexico, Investigation Nos. 731-TA-1174-1175 (Preliminary), 74 FR
62595 (November 30, 2009).
---------------------------------------------------------------------------
On December 3, 2009, the Department selected Golden Dragon, Hong
Kong Hailiang, and Zhejiang Hailiang as mandatory respondents.\7\ On
December 4, 2009, the Department issued antidumping questionnaires to
these three companies. In January and February 2010, Golden Dragon,
Hong Kong Hailiang, and Zhejiang Hailiang submitted timely responses to
sections A, C, and D of the Department's antidumping questionnaire.
---------------------------------------------------------------------------
\7\ See Respondent Selection Memorandum at 5.
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In November and December 2009, the Department received timely filed
separate-rate applications from the following six companies: Luvata
Tube, Ningbo Jintian, Zhejiang Naile, Chinalco, Zhejiang Jiahe, and
Luvata Alltop.
The Department issued supplemental questionnaires to Golden Dragon,
Hong Kong Hailiang, Zhejiang Hailiang, Luvata Tube, Ningbo Jintian, and
Chinalco from January to April 2010. The Department received responses
to its supplemental questionnaires from Golden Dragon, Hong Kong
Hailiang, Zhejiang Hailiang, Luvata Tube, and Ningbo Jintian from
January to May 2010. From January to May 2010, Petitioners submitted
comments to the Department regarding the submissions and/or responses
of Golden Dragon, Hong Kong Hailiang, Zhejiang Hailiang, Ningbo
Jintian, and Chinalco.
On January 8, 2010, the Department released a letter to interested
parties which listed potential surrogate countries and invited
interested parties to comment on surrogate country and surrogate value
(``SV'') selection.\8\ Between February and March 2010, Petitioners,
Golden Dragon, Hong Kong Hailiang, and Zhejiang Hailiang submitted
publicly available SV information, comments, and rebuttal comments on
the selection of a surrogate country and SVs. For a discussion of the
selection of the surrogate country, see ``Surrogate Country'' section
below.
---------------------------------------------------------------------------
\8\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to All Interested Parties, ``Antidumping Duty
Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China'' (January 8, 2010).
---------------------------------------------------------------------------
On February 12, 2010, Petitioners requested a 50-day postponement
of the preliminary determination. On February 25, 2010, pursuant to
section 733(c)(1)(A) of the Act and 19 CFR 351.205(e), the Department
postponed this preliminary determination by 50 days.\9\
---------------------------------------------------------------------------
\9\ See Seamless Refined Copper Pipe and Tube From the People's
Republic of China and Mexico: Postponement of Preliminary
Determinations of Antidumping Duty Investigations, 75 FR 8677
(February 25, 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. Thus, all
deadlines in this segment of the proceeding have been extended by seven
days. The revised deadline for the final determination of this
investigation is now May 5, 2010.\10\
---------------------------------------------------------------------------
\10\ See Memorandum to the Record from Ronald Lorentzen, DAS for
Import Administration, regarding ``Tolling of Administrative
Deadlines As a Result of the Government Closure During the Recent
Snowstorm,'' (February 12, 2010).
---------------------------------------------------------------------------
Period of Investigation
The period of investigation (``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 (i.e.,
September, 2009).\11\
---------------------------------------------------------------------------
\11\ See 19 CFR 351.204(b)(1).
---------------------------------------------------------------------------
Postponement of Final Determination and Extension of Provisional
Measures
Pursuant to section 735(a)(2) of the Act, on April 22, 2010,
Zhejiang Hailiang and Hong Kong Hailiang requested that, in the event
of an affirmative preliminary determination in this investigation, the
Department postpone its final determination by 60 days. Golden Dragon
submitted an identical request on April 23, 2010. In these submissions,
Zhejiang Hailiang, Hong Kong Hailiang, and Golden Dragon agreed to the
application of the provisional measures prescribed under 19 CFR
351.210(e)(2) until the date of the final determination. Because our
preliminary determination is affirmative, the respondents requesting an
extension of the final determination and an extension of the
provisional measures accounts for a significant proportion of exports
of the merchandise under consideration, and no compelling reasons for
denial exist, the Department is extending the due date for the final
determination by 60 days. Suspension of liquidation will be extended
accordingly.
Scope of Investigation
For the purpose of this investigation, the products covered are all
seamless circular refined copper pipes and tubes,
[[Page 26718]]
including redraw hollows, greater than or equal to 6 inches (152.4 mm)
in length and measuring less than 12.130 inches (308.102 mm) (actual)
in outside diameter (``OD''), regardless of wall thickness, bore (e.g.,
smooth, enhanced with inner grooves or ridges), manufacturing process
(e.g., hot finished, cold-drawn, annealed), outer surface (e.g., plain
or enhanced with grooves, ridges, fins, or gills), end finish (e.g.,
plain end, swaged end, flared end, expanded end, crimped end,
threaded), coating (e.g., plastic, paint), insulation, attachments
(e.g., plain, capped, plugged, with compression or other fitting), or
physical configuration (e.g., straight, coiled, bent, wound on spools).
The scope of this investigation covers, but is not limited to,
seamless refined copper pipe and tube produced or comparable to the
American Society for Testing and Materials (``ASTM'') ASTM-B42, ASTM-
B68, ASTM-B75, ASTM-B88, ASTM-B88M, ASTM-B188, ASTM-B251, ASTM-B251M,
ASTM-B280, ASTM-B302, ASTM-B306, ASTM-359, ASTM-B743, ASTM-B819, and
ASTM-B903 specifications and meeting the physical parameters described
therein. Also included within the scope of this investigation are all
sets of covered products, including ``line sets'' of seamless refined
copper tubes (with or without fittings or insulation) suitable for
connecting an outdoor air conditioner or heat pump to an indoor
evaporator unit. The phrase ``all sets of covered products'' denotes
any combination of items put up for sale that is comprised of
merchandise subject to the scope.
``Refined copper'' is defined as: (1) Metal containing at least
99.85 percent by weight of copper; or (2) metal containing at least
97.5 percent by weight of copper, provided that the content by weight
of any other element does not exceed the following limits:
------------------------------------------------------------------------
Limiting content
Element percent by weight
------------------------------------------------------------------------
Ag--Silver.......................................... 0.25
As--Arsenic......................................... 0.5
Cd--Cadmium......................................... 1.3
Cr--Chromium........................................ 1.4
Mg--Magnesium....................................... 0.8
Pb--Lead............................................ 1.5
S--Sulfur........................................... 0.7
Sn--Tin............................................. 0.8
Te--Tellurium....................................... 0.8
Zn--Zinc............................................ 1.0
Zr--Zirconium....................................... 0.3
Other elements (each)............................... 0.3
------------------------------------------------------------------------
Excluded from the scope of this investigation are all seamless
circular hollows of refined copper less than 12 inches in length whose
OD (actual) exceeds its length. The products subject to this
investigation are currently classifiable under subheadings 7411.10.1030
and 7411.10.1090 of the Harmonized Tariff Schedule of the United States
(``HTSUS''). Products subject to this investigation may also enter
under HTSUS subheadings 7407.10.1500, 7419.99.5050, 8415.90.8065, and
8415.90.8085. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the scope
of this investigation is dispositive.
Scope Comments
In accordance with the preamble to the Department's
regulations,\12\ the Department's Initiation Notice 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. The Department received comments
and scope exclusion requests from BrassCraft Manufacturing,\13\ Johnson
Controls, Inc.,\14\ and National de Cobre, S.A. de C.V.\15\ In a
memorandum dated concurrently with this notice, the Department
determined that the merchandise included in these scope exclusion
requests are subject to this investigation.\16\
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\12\ See Antidumping Duties; Countervailing Duties, 62 FR 27296,
27323 (May 19, 1997) (``Preamble'').
\13\ See Letter from BrassCraft Manufacturing to the Secretary
of Commerce, ``Comments Requesting Clarification of the Scope in the
Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China and Mexico'' (March 22, 2010).
\14\ See Letter from Johnson Controls, Inc. to the Secretary of
Commerce, ``Seamless Refined Copper Pipe and Tube from China and
Mexico; Comments of Johnson Controls, Inc.--Purchaser'' (November
10, 2009).
\15\ See Letter from Nacional de Cobre, S.A. de C.V. to the
Secretary of Commerce, ``Seamless Refined Copper Pipe and Tube from
Mexico: Comments on Scope of Investigation'' (March 29, 2010).
\16\ See Memorandum from George McMahon, Case Analyst, Office 3,
to Melissa Skinner, Director, Office 3, ``Seamless Refined Copper
Pipe and Tube from Mexico and the People's Republic of China: Scope
Exclusion Requests'' (May 5, 2010).
---------------------------------------------------------------------------
Affiliation/Single Entity
Section 771(33) of the Act states that the Department considers the
following entities to be affiliated: (A) Members of a family, including
brothers and sisters (whether by whole or half blood), spouse,
ancestors, and lineal descendants; (B) any officer or director of an
organization and such organization; (C) partners; (D) employer and
employee; (E) any person directly or indirectly owning, controlling, or
holding with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization; (F) two or
more persons directly or indirectly controlling, controlled by, or
under common control with, any person; and (G) any person who controls
any other person and such other person. For purposes of affiliation,
section 771(33) of the Act states that a person shall be considered to
control another person if the person is legally or operationally in a
position to exercise restraint or direction over the other person. In
order to find affiliation between companies, the Department must find
that at least one of the criteria listed above is applicable to the
respondents. The Statement of Administrative Action accompanying the
Uruguay Round Agreements Act (``SAA''), H. Doc. No. 316, 103d Cong., 2d
Session at 838 (1994), indicates that stock ownership is not the only
evidentiary factor that the Department may consider to determine
whether a person is in a position to exercise restraint or direction
over another person (e.g., control may be established through corporate
or family groupings, or joint ventures and other means).\17\ To the
extent that the affiliation provisions in section 771(33) of the Act do
not conflict with the Department's application of separate rates and
the statutory NME provisions in section 773(c) of the Act, the
Department will determine that exporters and/or producers are
affiliated if the facts of the case support such a finding.\18\
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\17\ See Certain Fresh Cut Flowers From Colombia: Final Results
of Antidumping Duty Administrative Reviews, 61 FR 42833, 42853
(August 19, 1996); Certain Welded Carbon Steel Pipes and Tubes From
Thailand: Final Results of Antidumping Duty Administrative Review,
62 FR 53808, 53810 (October 16, 1997).
\18\ See Certain Preserved Mushrooms From the People's Republic
of China: Preliminary Results of Sixth New Shipper Review and
Preliminary Results and Partial Rescission of Fourth Antidumping
Duty Administrative Review, 69 FR 10410, 10413 (March 5, 2004),
unchanged in Certain Preserved Mushrooms From the People's Republic
of China: Final Results of Sixth Antidumping Duty New Shipper Review
and Final Results and Partial Rescission of the Fourth Antidumping
Duty Administrative Review, 69 FR 54635 (September 9, 2004).
---------------------------------------------------------------------------
The Department preliminarily determines that two mandatory
respondents, Zhejiang Hailiang (a producer/exporter) and Hong Kong
Hailiang (an exporter), as well as an additional producer/exporter,
Shanghai Hailiang Copper Co., Ltd. (``Shanghai Hailiang'')
(collectively and hereinafter the ``Hailiang Group''), are affiliated
pursuant to section 771(33) of the Act. Based on the Department's
examination of the evidence presented in the questionnaire responses of
Zhejiang Hailiang and Hong Kong Hailiang, the
[[Page 26719]]
Department determines that Zhejiang Hailiang owns and controls both
Hong Kong Hailiang and Shanghai Hailiang. Accordingly, the Department
preliminarily determines that those parties are affiliated under
sections 771(33)(E), (F), and (G) of the Act.\19\
---------------------------------------------------------------------------
\19\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to Abdelali
Elouaradia, Director, AD/CVD Operations, Office 4, ``Antidumping
Duty Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Affiliation and Treatment as a Single
Entity of Zhejiang Hailiang Co., Ltd., Shanghai Hailiang Copper Co.,
Ltd., and Hong Kong Hailiang Metal Trading Limited'' (May 5, 2010)
at 3-5 (``Affiliation and Single Entity Memorandum'').
---------------------------------------------------------------------------
Additionally, under its affiliated single entity regulation, 19 CFR
351.401(f), the Department may collapse affiliated producers where it
finds that producers have production facilities for similar or
identical products, and that a significant potential for manipulation
of price or production exists. The regulation addresses the specific
situation of affiliated producers. However, the regulation is not
exhaustive of the situations that may call for collapsing of affiliated
entities, and the Department has developed a practice of collapsing
entities that do not qualify as producers, such as Hong Kong Hailiang,
which is an exporter.\20\
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\20\ See Notice of Final Determination of Sales at Less Than
Fair Value: Certain Frozen and Canned Warmwater Shrimp From Brazil,
69 FR 76910 (December 23, 2004) and accompanying Issues and Decision
Memorandum at Comment 5.
---------------------------------------------------------------------------
Based on the Department's examination of the evidence presented in
the questionnaire responses of Zhejiang Hailiang and Hong Kong
Hailiang, the Department preliminarily determines that Zhejiang
Hailiang and Shanghai Hailiang have similar production facilities such
that retooling would not be required to shift production from one
company to another.\21\ The Department further determines that Zhejiang
Hailiang, Hong Kong Hailiang, and Shanghai Hailiang have a significant
potential for manipulation of prices and production because Zhejiang
Hailiang owns and controls Hong Kong Hailiang and Shanghai Hailiang and
because Zhejiang Hailiang, Hong Kong Hailiang, and Shanghai Hailiang
have overlapping managers and directors.\22\ The Department, therefore,
preliminarily determines that Zhejiang Hailiang, Hong Kong Hailiang,
and Shanghai Hailiang should be treated as a single entity for purposes
of the antidumping investigation of copper pipe and tube from the PRC.
---------------------------------------------------------------------------
\21\ See Affiliation and Single Entity Memorandum at 3-4.
\22\ See Affiliation and Single Entity Memorandum at 3-5.
---------------------------------------------------------------------------
Non-Market Economy Treatment
The Department considers the PRC to be a non-market economy
(``NME'') country.\23\ 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, the Department continues to treat the PRC as
an NME country for purposes of this preliminary determination.
---------------------------------------------------------------------------
\23\ See, e.g., 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).
---------------------------------------------------------------------------
Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base normal value (``NV''),
in most circumstances, on the NME producer's factors of production
(``FOPs'') valued in a surrogate market-economy country or countries
considered to be appropriate by the Department. In accordance with
section 773(c)(4) of the Act, in valuing the FOPs, the Department shall
utilize, to the extent possible, the prices or costs of FOPs in one or
more market-economy countries that are at a level of economic
development comparable to that of the NME country and are significant
producers of comparable merchandise. The sources of the SVs that the
Department has used in this investigation are discussed under the
``Normal Value'' section below.
The Department determined that India, the Philippines, Indonesia,
Thailand, Ukraine, and Peru are countries comparable to the PRC in
terms of economic development.\24\ Once the countries that are
economically comparable to the PRC have been identified, the Department
selects an appropriate surrogate country by determining whether an
economically comparable country is a significant producer of comparable
merchandise and whether the data for valuing FOPs are both available
and reliable.
---------------------------------------------------------------------------
\24\ See Memorandum from Kelly Parkhill, Acting Director, Office
of Policy, to Robert Bolling, Program Manager, AD/CVD Operations,
Office 4, ``Request for a List of Surrogate Countries for an
Investigation of Copper Pipe and Tube from the People's Republic of
China'' (January 7, 2010).
---------------------------------------------------------------------------
On March 23, 2010, the Department determined that it is appropriate
to use India as a surrogate country pursuant to section 773(c)(4) of
the Act based on the following: (1) it is at a similar level of
economic development to the PRC pursuant to section 773(c)(4) of the
Act; (2) it is a significant producer of comparable merchandise; and
(3) the Department has reliable data from India that it can use to
value the FOPs.\25\ Thus, the Department calculated NV using Indian
prices when available and appropriate to the FOPs of Golden Dragon and
the Hailiang Group. The Department obtained and relied upon publicly
available information wherever possible.\26\ In accordance with 19 CFR
351.301(c)(3)(i), for the final determination in an antidumping
investigation, interested parties may submit publicly available
information to value the FOPs within 40 days after the date of
publication of the preliminary determination.\27\
---------------------------------------------------------------------------
\25\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to Abdelali
Elouaradia, Director, AD/CVD Operations, Office 4, ``Antidumping
Duty Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Selection of a Surrogate Country''
(March 23, 2010).
\26\ See Memorandum to the File from Shawn Higgins,
International Trade Compliance Analyst, AD/CVD Operations, Office 4,
``Investigation of Seamless Refined Copper Pipe and Tube from the
People's Republic of China: Surrogate Value Memorandum,'' (May 5,
2010) (``Surrogate Value Memorandum'').
\27\ In accordance with 19 CFR 351.301(c)(1), for the final
determination of this investigation, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on the record.
The Department generally will not accept the submission of
additional, previously absent-from-the-record alternative SV
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.
---------------------------------------------------------------------------
Separate Rates
In the Initiation Notice, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME investigations.\28\ The process requires
exporters and producers to submit a separate rate application.\29\
---------------------------------------------------------------------------
\28\ See Initiation Notice, 74 FR at 55198-99.
\29\ See Policy Bulletin 05.1: Separate-Rate Practice and
Application of Combination Rates in Antidumping Investigations
involving Non-Market Economy Countries (April 5, 2005), at 6,
available at https://ia.ita.doc.gov/policy/bull05-1.pdf (``Policy
Bulletin 05.1''). Policy Bulletin 05.1 states, in relevant part,
``While continuing the practice of assigning separate rates only to
exporters, all separate rates that the Department will now assign in
its NME investigations will be specific to those producers that
supplied the exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter and all of the
producers which supplied subject merchandise to it during the period
of investigation. This practice applied both to mandatory
respondents receiving an individually calculated separate rate as
well as the pool of non-investigated firms receiving the weighted-
average of the individually calculated rates. This practice is
referred to as the application of ``combination rates'' because such
rates apply to specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an exporter will apply
only to merchandise both exported by the firm in question and
produced by a firm that supplied the exporter during the period of
investigation.''
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[[Page 26720]]
In proceedings involving NME countries, the Department holds a
rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of subject merchandise in an NME country this single rate
unless an exporter can demonstrate that it is sufficiently independent
so as to be entitled to a separate rate. Exporters can demonstrate this
independence through the absence of both de jure and de facto
governmental control over export activities. The Department analyzes
each entity exporting the subject merchandise under the test announced
in the Notice of Final Determination of Sales at Less Than Fair Value:
Sparklers from the People's Republic of China, 56 FR 20588 (May 6,
1991) (``Sparklers''), as further developed in Notice of Final
Determination of Sales at Less Than Fair Value: Silicon Carbide from
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon
Carbide''). However, if the Department determines that a company is
wholly foreign-owned or located in a market economy, then a separate
rate analysis is not necessary to determine whether it is independent
from government control.
Separate Rate Recipients
1. Joint Ventures Between Chinese and Foreign Companies or Wholly
Chinese-Owned Companies
Three separate rate applicants in this investigation, Ningbo
Jintian, Zhejiang Naile, and Zhejiang Jiahe (collectively, ``Chinese SR
Applicants'') and the mandatory respondents Golden Dragon and the
Hailiang Group, provided evidence that they are either joint ventures
between Chinese and foreign companies or wholly Chinese-owned
companies. The Department has analyzed whether each of the three
Chinese SR Applicants and the mandatory respondents have demonstrated
the absence of de jure and de facto governmental control over their
respective export activities.
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export license; (2) legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies.\30\ The
evidence provided by the three Chinese SR Applicants and the mandatory
respondents supports a preliminary finding that all of the above
criteria have been satisfied.
---------------------------------------------------------------------------
\30\ See Sparklers, 56 FR at 20589.
---------------------------------------------------------------------------
The evidence provided by the three Chinese SR Applicants and the
mandatory respondents 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 exporters'
business and export licenses; (2) the existence of applicable
legislative enactments decentralizing control of Chinese companies; and
(3) the implementation of formal measures by the government
decentralizing control of Chinese companies.
b. 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 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.\31\ 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.
---------------------------------------------------------------------------
\31\ 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).
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The evidence provided by the three Chinese SR Applicants and the
mandatory respondents supports a preliminary finding of de facto
absence of governmental control based on record statements and
supporting documentation showing that the companies: (1) Set their own
export prices independent of the government and without the approval of
a government authority; (2) have the authority to negotiate and sign
contracts and other agreements; (3) maintain autonomy from the
government in making decisions regarding the selection of management;
and (4) retain the proceeds of their respective export sales and make
independent decisions regarding disposition of profits or financing of
losses.
Therefore, the evidence placed on the record of this investigation
by the three Chinese SR Applicants and the mandatory respondents
demonstrates an absence of de jure and de facto government control
under the criteria identified in Sparklers and Silicon Carbide.
Accordingly, the Department has preliminarily granted a separate rate
to the Chinese SR Applicants.\32\
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\32\ See ``Preliminary Determination'' section below.
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2. Wholly Foreign-Owned
Two separate rate applicants in this investigation, Luvata Alltop
and Luvata Tube, (``Foreign-Owned SR Applicants''), provided evidence
that they are wholly owned by individuals or companies located in
market economies in their separate rate applications. Therefore,
because they are wholly foreign-owned and the Department has no
evidence indicating that they are under the control of the government
of the PRC, a separate rates analysis is not necessary to determine
whether these companies are independent from government control.\33\
Accordingly, the Department has preliminarily granted a separate rate
to these Foreign-Owned SR Applicants.\34\
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\33\ See Notice of Final Determination of Sales at Less Than
Fair Value: Creatine Monohydrate From the People's Republic of
China, 64 FR 71104 (December 20, 1999) (determining that the
respondent was wholly foreign-owned and, thus, qualified for a
separate rate).
\34\ See ``Preliminary Determination'' section below.
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Companies Not Receiving a Separate Rate
On February 22, 2010, the Department issued Chinalco a supplemental
questionnaire that requested that Chinalco correct certain deficiencies
in its January 21, 2010, separate rate
[[Page 26721]]
application.\35\ The Department stated that Chinalco did not provide
(1) documentation of its first sale by invoice date of merchandise
under consideration to an unaffiliated customer in the United States
during the POI, (2) documentation in support of Chinalco's
certifications that it conducts independent price negotiations and has
autonomy from the government in making decisions regarding the
selection of management, (3) capital verification reports, (4)
consolidated financial statements, (5) share transfer agreements, (6)
articles of incorporation, and (7) an export certificate of approval.
On February 26, 2010, Chinalco informed the Department that it cannot
provide the missing documentation.\36\ Therefore, because Chinalco did
not comply with the Department's February 22, 2010, request for
information, the Department has determined that Chinalco has failed to
demonstrate an absence of de jure and de facto government control under
the criteria identified in Sparklers and Silicon Carbide. Accordingly,
the Department has preliminarily determined not to grant Chinalco a
separate rate.
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\35\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to Chinalco Luoyang Copper Co., Ltd.,
``Separate Rate Application Supplemental Questionnaire'' (February
22, 2010).
\36\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to the File,
``Antidumping Investigation of Seamless Refined Copper Pipe and Tube
from the People's Republic of China: Email from Chinalco Luoyang
Copper Co., Ltd.'' (April 16, 2010).
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Additionally, in the Initiation Notice, the Department requested
that all companies wishing to qualify for separate rate status in this
investigation submit a separate rate application.\37\ Sinochem and
Foshan Hua Hong submitted timely responses to the Department's Q&V
questionnaire but did not provide separate rate applications. Therefore
Sinochem and Foshan Hua Hong have not demonstrated their eligibility
for separate rate status in this investigation. As a result, the
Department is treating Sinochem and Foshan Hua Hong as part of the PRC-
wide entity.
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\37\ See Initiation Notice, 74 FR at 55198-99.
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Margins for Separate Rate Recipients
Through the evidence in their applications, the Chinese SR
Applicants and the Foreign-Owned SR Applicants have demonstrated their
eligibility for a separate rate. See the ``Separate Rates'' section
above. The separate rate is determined based on the estimated weighted-
average dumping margins established for exporters and producers
individually investigated, excluding zero and de minimis margins or
margins based entirely on adverse facts available (``AFA'').\38\ In
this investigation both mandatory respondents, Golden Dragon and the
Hailiang Group, have estimated weighted-average dumping margins which
are above de minimis and which are not based on total AFA. Therefore,
because there are only two relevant weighted-average dumping margins
for this preliminary determination, the separate rate is a simple-
average of these two values, which is 34.48 percent.\39\
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\38\ See section 735(c)(5)(A) of the Act.
\39\ See section 735(c)(5)(B) of the Act.
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Use of Facts Available and Adverse Facts Available
Section 776(a) of the Act provides that the Department shall apply
``facts otherwise available'' (``FA'') if (1) necessary information is
not on the record, or (2) an interested party or any other person (A)
withholds information that has been requested, (B) fails to provide
information within the deadlines established, or in the form and manner
requested by the Department, subject to subsections (c)(1) and (e) of
section 782 of the Act, (C) significantly impedes a proceeding, or (D)
provides information that cannot be verified as provided by section
782(i) of the Act.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying the facts otherwise available when
a party has failed to cooperate by not acting to the best of its
ability to comply with a request for information.\40\ Such an adverse
inference may include reliance on information derived from the
petitions, the final determination, a previous administrative review,
or other information placed on the record.
---------------------------------------------------------------------------
\40\ See SAA at 870.
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Hailiang Group
The Department requested on several occasions that the Hailiang
Group provide its FOPs on a more specific basis (i.e., control number
(``CONNUM'') specific, plant/division specific, or product-group
specific).\41\ On March 18, 2010, and April 12, 2010, the Hailiang
Group stated that it is not able to provide the requested information
to the Department. However, the Hailiang Group's own information on the
record indicates that it has the ability to report its FOPs on a
product-group specific basis.\42\ Because the Hailiang Group continued
to report FOP values that are identical for all CONNUMs, despite the
Department's multiple requests to provide this data on a more specific
basis, all the information necessary for the Department to calculate an
accurate dumping margin for the Hailiang Group is not on the record and
available for use in the preliminary determination. Since the Hailiang
Group did not provide the requested FOPs on a product-group specific
basis, this necessary information was not available on the record and,
therefore, we have determined, pursuant to section 776(a)(1) and (2)(B)
of the Act, that it is appropriate to base the Hailiang Group's
preliminary dumping margin, in part, on FA.
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\41\ See Letter from Robert Bolling, Program Manager, AD/CVD
Operations, Office 4, to the Hailiang Group, ``Sections C&D Third
Supplemental Questionnaire'' (April 28, 2010) at 2-3; Letter from
Robert Bolling, Program Manager, AD/CVD Operations, Office 4, to the
Hailiang Group, ``Sections C&D Second Supplemental Questionnaire''
(March 29, 2010) at 5; Letter from Robert Bolling, Program Manager,
AD/CVD Operations, Office 4, to the Hailiang Group, ``Sections C&D
Supplemental Questionnaire'' (February 26, 2010) at 8-9; Letter from
Robert Bolling, Program Manager, AD/CVD Operations, Office 4, to
Zhejiang Hailiang, ``Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People's Republic of China:
Request for Information'' (December 4, 2010) at D-2.
\42\ See Letter from the Hailiang Group to the Secretary of
Commerce, ``Certain Seamless Refined Copper Pipe & Tube from the
People's Republic of China: Supplemental Section D Questionnaire
Response of Hailiang Group'' (March 19, 2010) at Exhibit 6; Letter
from the Hailiang Group to the Secretary of Commerce, ``Certain
Seamless Refined Copper Pipe & Tube from the People's Republic of
China: Supplemental Section D Questionnaire Response of Hailiang
Group'' (April 12, 2010) at Exhibit 12.
---------------------------------------------------------------------------
The Hailiang Group's response to the Department's initial request
for CONNUM-specific FOPs simply stated that it reported FOPs on a
CONNUM-specific basis.\43\ However, in its original section D response,
Hailiang reported FOP values that are identical for all CONNUMs.\44\
These values were calculated as the total consumption of each input
divided by the total production quantity. On February 25, 2010, the
Department again requested that the Hailiang Group provide its FOPs on
a more specific basis. Once again, the Hailiang Group responded to the
Department's request by stating that it was unable to provide the
requested data.\45\ Based on the Hailiang Group's April 12, 2010
submission, the record
[[Page 26722]]
indicates that the Hailiang Group has the ability to report its FOPs on
a product-group specific basis. The Hailiang Group's failure to provide
the requested information has prevented the Department from calculating
an accurate margin for the Hailiang Group. Accordingly, the Department
has preliminarily determined that necessary information is not on the
record and that the Hailiang Group has not provided requested
information. Therefore, for the preliminary determination, as partial
FA, the Department recalculated the FOPs reported by the Hailiang Group
to reflect product-group specific production steps and the
corresponding processing yields at each stage using information from
the Hailiang Group's April 12, 2010 submission.\46\ On April 29, 2010,
the Department again requested that the Hailiang Group provide its FOPs
on a product-group specific basis. The Department will analyze this
data for the final determination.
---------------------------------------------------------------------------
\43\ See Letter from the Hailiang Group to the Secretary of
Commerce, ``Certain Seamless Refined Copper Pipe & Tube from the
People's Republic of China: Section D Questionnaire Response of
Hailiang Group'' (January 25, 2010) (``Hailiang Group Section D
Response'') at 4.
\44\ See Hailiang Group Section D Response at Exhibit 1.
\45\ See Letter from the Hailiang Group to the Secretary of
Commerce, ``Certain Seamless Refined Copper Pipe & Tube from the
People's Republic of China: Supplemental Section D Questionnaire
Response of Hailiang Group'' (March 19, 2010) at 4.
\46\ See Memorandum from Karine Gziryan, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to the File,
``Seamless Refined Copper Pipe and Tube from the People's Republic
of China: Preliminary Analysis Memorandum for the Hailiang Group''
(May 5, 2010) (``Hailiang Group Analysis Memo'').
---------------------------------------------------------------------------
PRC-Wide Entity
On October 21, 2009, the Department requested Q&V information from
the eight companies that Petitioners identified as potential exporters
or producers of copper pipe and tube from the PRC. Additionally, the
Department's Initiation Notice informed all potential PRC exporters/
manufacturers of subject merchandise of the requirements to respond to
both the Department's Q&V questionnaire and the separate rate
application in order to receive consideration for separate rate
status.\47\
---------------------------------------------------------------------------
\47\ See Initiation Notice, 74 FR at 55198-99.
---------------------------------------------------------------------------
Two of the potential exporters/manufacturers identified in the
petition, Qingdao Hongtai International Trading Co., Ltd. and Zhejiang
Hongtian Copper Co., Ltd., did not respond to the Department's requests
for Q&V information. Furthermore, two exporters/manufacturers, Sinochem
and Foshan Hua Hong, that submitted Q&V information did not submit a
separate rate application. In addition, a third exporter/manufacturer,
Chinalco, who submitted Q&V information as well as a separate rate
application, failed to provide additional information requested by the
Department in order for the Department to determine its separate rate
eligibility.
Therefore, the Department preliminarily determines that there were
exports of merchandise under investigation from PRC exporters/
manufacturers that did not respond to the Department's Q&V
questionnaire, and/or subsequently did not demonstrate their
eligibility for separate rate status. As a result, the Department is
treating these PRC exporters/manufacturers (``non-responsive
companies'') as part of the PRC-wide entity.
Application of Total Adverse Facts Available
As noted above, the Department has determined that the companies
that did not submit Q&V information or who failed to demonstrate that
they operate free of government control, are part of the PRC-wide
entity. Pursuant to section 776(a) of the Act, the Department finds
that the PRC-wide entity has failed to respond to the Department's
questionnaires, withheld required information, and/or submitted
information that cannot be verified, thus significantly impeding the
proceeding.\48\ Accordingly, the Department has preliminarily
determined to base the PRC-wide entity's margin on FA.\49\ Further,
because the PRC-wide entity failed to cooperate by not acting to the
best of its ability to comply with the Department's request for
information, the Department preliminarily determines that, when
selecting from among the FA, an adverse inference is warranted for the
PRC-wide entity pursuant to section 776(b) of the Act.
---------------------------------------------------------------------------
\48\ 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).
\49\ See section 776(a) of the Act.
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Selection of the Adverse Facts Available Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) provide that the Department may rely on
information derived from (1) The petition, (2) a final determination in
the investigation, (3) any previous review or determination, or (4) any
information placed on the record. In selecting a rate for AFA, the
Department selects a rate that is sufficiently adverse ``as to
effectuate the purpose of the facts available rule to induce
respondents to provide the Department with complete and accurate
information in a timely manner.'' \50\ Further, it is the Department's
practice to select a rate that ensures ``that the party does not obtain
a more favorable result by failing to cooperate than if it had
cooperated fully.'' \51\ It is the Department's practice to select, as
AFA, the higher of the (a) highest margin alleged in the petition, or
(b) the highest calculated rate of any respondent in the
investigation.\52\ In the instant investigation, as AFA, the Department
has preliminarily assigned to the PRC-wide entity, including companies
that did not respond to the Department's Q&V questionnaire or establish
their eligibility for a separate rate, the highest rate on the record
of this proceeding, which is the 60.50 percent margin from the
petition.\53\ The Department preliminarily determines that this
information is the most appropriate from the available sources to
effectuate the purposes of AFA. The Department will consider all
margins on the record at the time of the final determination for the
purpose of determining the most appropriate AFA rate for the PRC-wide
entity.
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\50\ See Notice of Final Determination of Sales at Less Than
Fair Value: Static Random Access Memory Semiconductors From Taiwan,
63 FR 8909, 8932 (February 23, 1998).
\51\ See Brake Rotors From the People's Republic of China: Final
Results and Partial Rescission of the Seventh Administrative Review;
Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939
(November 18, 2005) (quoting SAA accompanying the Uruguay Round
Agreements Act, H. Doc. No. 316, 103d Cong., 2d Session at 870
(1994)).
\52\ See Final Determination of Sales at Less Than Fair Value:
Certain Cold-Rolled Flat-Rolled Carbon Quality Steel Products From
The People's Republic of China, 65 FR 34660 (May 31, 2000) and
accompanying Issues and Decision Memorandum at ``Facts Available.''
\53\ See Initiation Notice, 74 FR at 55198.
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The dumping margin for the PRC-wide entity applies to all entries
of the merchandise under investigation except for entries of
merchandise under investigation from the exporter/manufacturer
combinations listed in the chart in the ``Preliminary Determination''
section below.
Corroboration of Information
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation as FA, it must, to the extent practicable,
corroborate that information from independent sources reasonably at its
disposal. Secondary information is described as ``information derived
from the petition that gave rise to the investigation or review, the
final determination concerning merchandise subject to this
investigation, or any previous review under section 751
[[Page 26723]]
concerning the merchandise under investigation.'' \54\ To
``corroborate'' means that the Department will satisfy itself that the
secondary information to be used has probative value. Independent
sources used to corroborate may include, for example, published price
lists, official import statistics and customs data, and information
obtained from interested parties during the particular investigation.
To corroborate secondary information, the Department will, to the
extent practicable, examine the reliability and relevance of the
information used.\55\
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\54\ See SAA at 870.
\55\ See Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof, From Japan;
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From Japan, and Tapered Roller
Bearings, Four Inches or Less in Outside Diameter, and Components
Thereof, From Japan; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825 (March
13, 1997).
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The AFA rate that the Department used is the 60.50 percent rate
from the petition. Petitioners' methodology for calculating the United
States price and NV in the petition is discussed in the Initiation
Notice.\56\ To corroborate the AFA margin that the Department selected,
the Department compared this margin to the margins found for the
mandatory respondents, Golden Dragon and the Hailiang Group. The
Department found that the margin of 60.50 percent has probative value
because it is in the range of the model-specific margins that the
Department found for the Hailiang Group.\57\ Accordingly, the
Department finds that the rate of 60.50 percent is corroborated within
the meaning of section 776(c) of the Act.
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\56\ See Initiation Notice, 74 FR at 55198.
\57\ See Hailiang Group Analysis Memo.
---------------------------------------------------------------------------
Fair Value Comparison
To determine whether sales of copper pipe and tube to the United
States by Golden Dragon and the Hailiang Group were made at LTFV, the
Department compared export price (``EP'') and constructed export price
(``CEP'') to NV, as described in the ``U.S. Price'' and ``Normal
Value'' sections of this notice.
U.S. Price
In accordance with section 772(a) of the Act, the Department used
EP as the basis for U.S. price for Golden Dragon's and the Hailiang
Group's sales where the first sale to unaffiliated purchasers was made
prior to importation and the use of CEP was not otherwise warranted. In
accordance with section 772(c) of the Act, the Department calculated EP
for Golden Dragon and the Hailiang Group by deducting the following
expenses from the starting price (gross unit price) charged to the
first unaffiliated customer in the United States: foreign inland
freight from the plant to the port of exportation, foreign brokerage
and handling, international freight, and marine insurance.
Additionally, the Department based movement expenses on SVs where the
service was purchased from a PRC company.\58\ For details regarding our
EP calculations, see Golden Dragon Analysis Memo and the Hailiang Group
Analysis Memo.
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\58\ See Memorandum from Shawn Higgins, International Trade
Compliance Analyst, AD/CVD Operations, Office 4, to the File,
``Seamless Refined Copper Pipe and Tube from the People's Republic
of China: Preliminary Analysis Memorandum for Golden Dragon Precise
Copper Tube Group, Inc.'' (May 5, 2010) (``Golden Dragon Analysis
Memo''); Hailiang Group Analysis Memo.
---------------------------------------------------------------------------
In accordance with section 772(b) of the Act, the Department used
CEP as the basis for U.S. price for Golden Dragon's sales where Golden
Dragon first sold subject merchandise to its affiliated company in the
United States, which in turn sold subject merchandise to unaffiliated
U.S. customers. In accordance with section 772(b) of the Act, CEP is
the price at which the merchandise under investigation is first sold
(or agreed to be sold) in the United States before or after the date of
importation by or for the account of the producer or exporter of such
merchandise or by a seller affiliated with the producer or exporter, to
a purchaser not affiliated with the producer or exporter, as adjusted
under sections 772(c) and (d) of the Act. The Department calculated CEP
for Golden Dragon based on delivered prices to unaffiliated purchasers
in the United States and made deductions, where applicable, from the
U.S. sales price for movement expenses in accordance with section
772(c)(2)(A) of the Act. These movement expenses included foreign
inland freight from the plant to the port of exportation, international
freight, marine insurance, U.S. customs duty, U.S. inland freight from
port to the warehouse, and U.S. inland freight from the warehouse to
the customer. In accordance with section 772(d)(1) of the Act, the
Department deducted credit expenses and indirect selling expenses from
the U.S. price, all of which relate to commercial activity in the
United States. Finally, the Department deducted CEP profit, in
accordance with sections 772(d)(3) and 772(f) of the Act. For details
regarding the CEP calculation, see Golden Dragon Analysis Memo.
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine NV using an FOP methodology if the merchandise is exported
from an NME and the information does not permit the calculation of NV
using home-market prices, third-country prices, or constructed value
under section 773(a) of the Act. The Department bases NV on FOPs
because the presence of government controls on various aspects of NMEs
renders price comparisons and the calculation of production costs
invalid under the Department's normal methodologies.\59\
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\59\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value, Affirmative Critical Circumstances, In Part, and
Postponement of Final Determination: Certain Lined Paper Products
from the People's Republic of China, 71 FR 19695, 19703 (April 17,
2006), unchanged in 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 (September 8, 2006).
---------------------------------------------------------------------------
As the basis for NV, Golden Dragon and the Hailiang Group provided
FOPs used in each stage for producing copper pipe and tube. Consistent
with section 773(c)(1)(B) of the Act, it is the Department's practice
to value the FOPs that a respondent uses to produce the merchandise
under consideration.
Factor Valuation Methodology
In accordance with section 773(c) of the Act, the Department
calculated NV based on FOP data reported by Golden Dragon and the
Hailiang Group. To calculate NV, the Department multiplied the reported
per-unit factor-consumption rates by publicly available Indian SVs. In
selecting the SVs, the Department considered the quality, specificity,
and contemporaneity of the data.\60\ As appropriate, the Department
adjusted input prices by including freight costs to make them delivered
prices. Specifically, the Department added to Indian import SVs a
surrogate freight cost using the shorter of the reported distance from
the domestic supplier to the factory or the distance from the nearest
seaport to the factory where appropriate. This adjustment is in
accordance with the Court of Appeals
[[Page 26724]]
for the Federal Circuit's decision in Sigma Corp. v. United States, 117
F.3d 1401, 1407-08 (Fed. Cir. 1997). A detailed description of all SVs
used for Golden Dragon and the Hailiang Group can be found in the
Surrogate Value Memorandum.\61\
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\60\ 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; 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.
\61\ See Surrogate Value Memorandum at Exhibits 1 and 2.
---------------------------------------------------------------------------
Golden Dragon and the Hailiang Group each reported that one of
their raw material inputs (i.e., copper) was sourced from market
economy countries and paid for in market economy currencies. Pursuant
to 19 CFR 351.408(c)(1), when a respondent sources inputs from a market
economy supplier in meaningful quantities (i.e., not insignificant
quantities), the Department normally will use the actual price paid by
the respondent for those inputs.\62\ Because information reported by
Golden Dragon and the Hailiang Group demonstrates that they each
purchased significant quantities (i.e., 33 percent or more) of copper
from market economy suppliers, the Department used each respondent's
actual market economy purchase prices of copper to v
