Silicon Metal from the People's Republic of China: Preliminary Results and Preliminary Rescission, in Part, of Antidumping Duty Administrative Review, 41143-41148 [2010-17299]
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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Notices
m)), and one in Class D (over 70 ft (21.3
m)).
Persons with the earliest documented
participation in the fishery on a Class A
sized vessel will receive the highest
priority for obtaining permits in any size
class, followed by persons with the
earliest documented participation in
Classes B, C, and D, in that order. If
there is a tie in priority, the person with
the second earliest documented
participation will be ranked higher in
priority.
Complete applications must include
the completed and signed application
form, legible copies of documents
supporting historical participation in
the American Samoa pelagic longline
fishery, and payment for the nonrefundable application processing fee,
in accordance with the regulations at 50
CFR 665.13. Applications must be
received by NMFS (see ADDRESSES) by
November 12, 2010 to be considered for
a permit; applications will not be
accepted if received after that
date.Authoritative additional
information on the American Samoa
limited entry program may be found in
50 CFR part 665.
Authority: 16 U.S.C. 1801 et seq.
Dated: July 9, 2010.
Emily H. Menashes,
Acting Director, Office of Sustainable
Fisheries, National Marine Fisheries Service.
[FR Doc. 2010–17296 Filed 7–14–10; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–806]
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Silicon Metal from the People’s
Republic of China: Preliminary Results
and Preliminary Rescission, in Part, of
Antidumping Duty Administrative
Review
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from
interested parties, the Department of
Commerce (‘‘Department’’) is conducting
an administrative review of the
antidumping duty order on silicon
metal from the People’s Republic of
China (‘‘PRC’’). The period of review
(‘‘POR’’) is June 1, 2008, through May 31,
2009. This administrative review covers
one mandatory respondent and two
respondents that claim they did not ship
or sell subject merchandise to the
United States during the POR.
We found no margin for the U.S. sales
subject to this administrative review. If
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these preliminary results are adopted in
our final results of review, we will
instruct U.S. Customs and Border Patrol
(‘‘CBP’’) to liquidate the appropriate
entries without regard to antidumping
duties.
We invite interested parties to
comment on these preliminary results.
Parties who submit comments are
requested to submit with each argument
a statement of the issue and a brief
summary of the argument. We intend to
issue the final results of this review no
later than 120 days from the date of
publication of this notice.
FOR FURTHER INFORMATION CONTACT:
Melissa Blackledge or Howard Smith,
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) 482–3518, and (202)
482–5193, respectively.
SUPPLEMENTARY INFORMATION: The
Department received a timely request
from Petitioner, Globe Metallurgical Inc.
(‘‘Petitioner’’), in accordance with 19
CFR 351.213(b), for an administrative
review of the antidumping duty order
on silicon metal from the PRC of three
companies: Datong Jinneng Industrial
Silicon Co., Ltd. (‘‘Datong Jinneng’’),1
Jiangxi Gangyuan Silicon Industry Co.,
Ltd. (‘‘Jiangxi Gangyuan’’),2 and
Shanghai Jinneng International Trade
Co., Ltd. (‘‘Shanghai Jinneng’’). The
Department also received a timely
request from Shanghai Jinneng and
Datong Jinneng (Shanghai Jinneng’s
affiliated supplier and producer of
subject merchandise) for an
administrative review of Shanghai
Jinneng. On July 29, 2009, the
Department published a notice of
initiation of an antidumping duty
administrative review on silicon metal
from the PRC, in which it initiated a
review of Datong Jinneng, Jiangxi
Gangyuan, and Shanghai Jinneng. See
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews and Deferral of Administrative
Review, 74 FR 37690 (July 29, 2009)
(‘‘Initiation Notice’’).
On September 11, 2009, the
Department issued the antidumping
questionnaire to Shanghai Jinneng based
on the results of a CBP import data
query placed on the record on August
17, 2009, which indicated that only
1 The abbreviation ‘‘Inc.’’ incorrectly appeared
after ‘‘Datong Jinneng Industrial Silicon Co.’’ in the
Initiation Notice. The abbreviation ‘‘Ltd.’’ should
have been used.
2 We have used the abbreviation ‘‘Co.’’ rather than
‘‘Company’’, which was used in the Initiation
Notice, because ‘‘Co.’’ is used in the Automated
Customs System Module.
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41143
Shanghai Jinneng made sales of subject
merchandise during the POR. Both
Jiangxi Gangyuan, and Datong Jinneng
reported that they had no entries of
subject merchandise during the POR.
Between October 2009 and May 2010,
Shanghai Jinneng responded to the
Department’s questionnaire and
supplemental questionnaires and
Petitioner commented on Shanghai
Jinneng’s responses.
In response to the Department’s
December 9, 2009, letter providing
parties with an opportunity to submit
comments regarding surrogate country
and surrogate value selection,3 Shanghai
Jinneng and Petitioner filed surrogate
country and surrogate value comments
from January 2010 through June 2010.
On March 4, 2010, the Department
extended the deadline for the issuance
of the preliminary results of the
administrative review until July 7, 2010.
See Silicon Metal From the People’s
Republic of China: Extension of Time
Limit for the Preliminary Results of
Antidumping Duty Administrative
Review, 75 FR 9869 (March 4, 2010).
Scope of the Order
The product covered by the order is
silicon metal containing at least 96.00
but less than 99.99 percent of silicon by
weight, and silicon metal with a higher
aluminum content containing between
89 and 96 percent silicon by weight.
The subject merchandise is currently
classifiable under item numbers
2804.69.10 and 2804.69.50 of the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’) as a chemical
product, but is commonly referred to as
a metal. Semiconductor–grade silicon
(silicon metal containing by weight not
less than 99.99 percent of silicon and
provided for in subheading 2804.61.00
of the HTSUS) is not subject to this
order. This order is not limited to
silicon metal used only as an alloy agent
or in the chemical industry. Although
the HTSUS subheadings are provided
for convenience and customs purposes,
the written description of the
merchandise is dispositive.
Intent To Rescind the Administrative
Review, in Part
As noted above, Jiangxi Gangyuan and
Datong Jinneng reported that they did
not have any entries of subject
merchandise during the POR. To test
these claims, the Department ran a CBP
data query and issued a no–shipment
inquiry to CBP asking it to provide any
3 See Letter from Howard Smith, Program
Manager, Office 4, to All Interested Parties,
‘‘Antidumping Duty Administrative Review of
Silicon Metal from the People’s Republic of China
(PRC),’’ dated December 9, 2009.
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information that contradicted the
companies’ claims. The Department has
not obtained any evidence contradicting
Jiangxi Gangyuan’s and Datong
Jinneng’s claims and, thus, has
preliminarily rescinded this
administrative review with respect to
these companies pursuant to 19 CFR
351.213(d)(3):
Non–Market Economy Country Status
In every case conducted by the
Department involving the PRC, the PRC
has been treated as a non–market
economy (‘‘NME’’) country. In
accordance with section 771(18)(C)(i) of
the Tariff Act of 1930, as amended (the
‘‘Act’’), any determination that a foreign
country is an NME country shall remain
in effect until revoked by the
administering authority. None of the
parties to this proceeding have
contested such treatment. Accordingly,
the Department calculated normal value
(‘‘NV’’) in accordance with section
773(c) of the Act, which applies to NME
countries.
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Separate Rates
In proceedings involving NME
countries, the Department has a
rebuttable presumption that all
companies within the country are
subject to government control and, thus,
should be assessed a single antidumping
duty rate. It is the Department’s policy
to assign all exporters of merchandise
subject in an NME country this single
rate unless an exporter can demonstrate
that it is sufficiently independent so as
to be entitled to a separate rate.
Exporters can demonstrate this
independence through the absence of
both de jure and de facto governmental
control over export activities. The
Department analyzes each entity
exporting the subject merchandise
under a test set out 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.
See Notice of Final Determination of
Sales at Less Than Fair Value: Creatine
Monohydrate from the People’s
Republic of China, 64 FR 71104, 71105
(December 20, 1999) (where the
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respondent was wholly foreign–owned,
and thus, qualified for a separate rate).
Wholly Chinese–Owned
Shanghai Jinneng stated that it is a
wholly Chinese–owned company.4
Therefore, the Department must analyze
whether this respondent can
demonstrate the absence of both de jure
and de facto governmental control over
export activities.
1. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) an absence of
restrictive stipulations associated with
an individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Shanghai
Jinneng supports a preliminary finding
of de jure absence of governmental
control based on the following: (1) there
is an absence of restrictive stipulations
associated with the company’s business
and export licenses; (2) there are
applicable legislative enactments
decentralizing control of PRC
companies; and (3) there are formal
measures by the government
decentralizing control of PRC
companies.5
2. Absence of De Facto Control
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. See Silicon Carbide, 59 FR at
22586–87; see also Notice of Final
Determination of Sales at Less Than
Fair Value: Furfuryl Alcohol From the
People’s Republic of China, 60 FR
22544, 22545 (May 8, 1995). The
Department has determined that an
analysis of de facto control is critical in
4 See Shanghai Jinneng’s Section A Response
(‘‘SAR’’), at 2.
5 See Shanghai Jinneng’s SAR, at 4-9.
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determining whether respondents are,
in fact, subject to a degree of
governmental control which would
preclude the Department from assigning
separate rates.
We determine that the evidence on
the record supports a preliminary
finding of de facto absence of
governmental control with respect to
Shanghai Jinneng based on record
statements and supporting
documentation showing that the
company: 1) sets its own export prices
independent of the government and
without the approval of a government
authority; 2) has the authority to
negotiate and sign contracts and other
agreements; 3) has autonomy from the
government regarding the selection of
management; and 4) retains the
proceeds from its sales and makes
independent decisions regarding
disposition of profits or financing of
losses.6
The evidence placed on the record of
this administrative review by Shanghai
Jinneng demonstrates an absence of de
jure and de facto government control
with respect to the company’s exports of
the merchandise under review, in
accordance with the criteria identified
in Sparklers and Silicon Carbide.
Therefore, we have preliminary granted
Shanghai Jinneng separate rate status.
Selection of a Surrogate Country
When the Department conducts an
antidumping duty administrative review
of imports from a NME country, section
773(c)(1) of the Act directs the
Department to base NV, in most cases,
on the NME producer’s factors of
production (‘‘FOP’’) valued in a
surrogate market–economy country or
countries considered appropriate by the
Department. In accordance with section
773(c)(4) of the Act, the Department will
value FOP using ‘‘to the extent possible,
the prices or costs of factors of
production in one or more market–
economy countries that are – (A) at a
level of economic development
comparable to that of the NME country,
and (B) significant producers of
comparable merchandise.’’ Further,
pursuant to 19 CFR 351.408(c)(2), the
Department will normally value FOP in
a single country.
In the instant review, the Department
identified India, Indonesia, the
Philippines, Colombia, Thailand, and
Peru as a non–exhaustive list of
countries that are at a level of economic
development comparable to the PRC
and for which good quality data is most
6 See
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likely available.7 On January 13, 2010,
the Petitioner and Shanghai Jinneng
proposed selecting India as the
surrogate country because it is at a level
of economic development comparable to
the PRC and the U.S. Geological Survey,
Minerals Yearbook (‘‘USGS’’) and Metal
Bulletin, Inc. indicate that India is a
significant producer of comparable
merchandise.8 With respect to data
considerations, in selecting a surrogate
country, it is the Department’s practice
that, ’’. . . if more than one country has
survived the selection process to this
point, the country with the best factors
data is selected as the primary surrogate
country.’’ See Policy Bulletin 04.1: Non–
Market Economy Surrogate Country
Selection Process, (March 1, 2004)
(‘‘Policy Bulletin 04.1’’) available at
https://ia.ita.doc.gov. Currently, the
record contains surrogate value
information, including possible
surrogate financial statements, only
from India. Thus, the Department is
preliminarily selecting India as the
surrogate country on the basis that: (1)
it is at a comparable level of economic
development to the PRC, pursuant to
773(c)(4) of the Act; (2) it is a significant
producer of comparable merchandise;
and (3) we have reliable data from India
that we can use to value the FOP.
Therefore, we have calculated NV using
Indian prices, when available and
appropriate, to value Shanghai Jinneng’s
FOP. See Memorandum to the File
through Howard Smith, Program
Manager, AD/CVD Operations, Office 4,
from Melissa Blackledge, Senior
International Trade Analyst, regarding
‘‘Antidumping Duty Administrative
Review of Silicon Metal from the
People’s Republic of China: Selection of
Factor Values,’’ dated July 7, 2010
(‘‘Surrogate Value Memorandum’’). In
accordance with 19 CFR
351.301(c)(3)(ii), interested parties may
submit publicly–available information
to value FOP until 20 days after the date
of publication of the preliminary
results.9
7 See memorandum entitled, ‘‘Request for a List of
Surrogate Countries for an Administrative Review
of the Antidumping Duty Order on Silicon Metal
(‘‘Silicon Metal’’) from the People’s Republic of
China (‘‘PRC’’),’’ dated October 28, 2009.
8 See Shanghai Jinneng’s January 13, 2010, and
Respondent’s January 13, 2010 submissions at 6 and
2, respectively.
9 In accordance with 19 CFR 351.301(c)(1), for the
final results of this administrative review,
interested parties may submit factual information to
rebut, clarify, or correct factual information
submitted by an interested party less than ten days
before, on, or after, the applicable deadline for
submission of such factual information. However,
the Department notes that 19 CFR 351.301(c)(1)
permits new information only insofar as it rebuts,
clarifies, or corrects information placed on the
record. The Department generally will not accept
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Fair Value Comparisons
In accordance with section 777A(d)(2)
of the Act, to determine whether
Shanghai Jinneng sold silicon metal to
the United States at less than NV, we
compared the weighted–average export
of the silicon metal to the NV of the
silicon metal, as described in the ‘‘U.S.
Price,’’ and ‘‘Normal Value’’ sections of
this notice.
Export Price
The Department considered the U.S.
prices of sales by Shanghai Jinneng to be
export prices (‘‘EPs’’) in accordance with
section 772(a) of the Act, because these
were the prices at which the subject
merchandise was first sold before the
date of importation by the producer/
exporter of the subject merchandise
outside of the United States to an
unaffiliated purchaser in the United
States. We calculated EPs based on
prices to unaffiliated purchaser(s) in the
United States.
Shanghai Jinneng reported that it
incurred value added tax (‘‘VAT’’) and
an export tax on subject merchandise.
Petitioner argues that the Department
should deduct the export tax from U.S.
price, which, according to petitioner, is
in accordance with the statute and the
Department’s practice of calculating a
tax–neutral dumping margin. Shanghai
Jinneng contends that in the 2007–2008
administrative review, the Department
concluded that its practice, which had
been upheld by the Court of
International Trade (‘‘CIT’’) and Court of
Appeals for the Federal Circuit, is not to
reduce U.S. price for tax payments by
NME respondents to NME governments.
Shanghai Jinneng claims that the facts
related to export taxes in this
administrative review are the same as in
the 2007–2008 administrative review. In
the 2007–2008 administrative review,
the Department determined not to
reduce U.S. price by the amount of
Chinese export tax and VAT on silicon
metal exports. In this instant review,
consistent with Magnesium Corp. and
the 2007–2008 administrative review,
the Department is not reducing U.S.
price for export taxes or VAT in China.
See Silicon Metal from the People’s
Republic China: Final Results and
Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 1592 (Jan.
12, 2010), and accompanying Issues and
Decision Memorandum at Comment 1;
the submission of additional, previously absentfrom-the-record alternative surrogate value
information pursuant to 19 CFR 351.301(c)(1). See
Glycine from the People’s Republic of China: Final
Results of Antidumping Duty Administrative
Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and
Decision Memorandum at Comment 2.
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41145
Magnesium Corp. of America, et. al. v.
United States, et. al.,166 F.3d 1364,
1370–71 (Fed. Cir.1999) (‘‘Magnesium
Corp.’’).
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
country and the available 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. When
determining NV in an NME context, the
Department uses an FOP methodology
because the presence of government
controls on various aspects of NMEs
renders price comparisons and the
calculation of production costs invalid
under its normal methodologies. See
Tapered Roller Bearings and Parts
Thereof, Finished or Unfinished, From
the People’s Republic of China:
Preliminary Results of Antidumping
Duty Administrative Review and Notice
of Intent to Rescind in Part, 70 FR
39744, 39754 (July 11, 2005), unchanged
in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, from
the People’s Republic of China: Final
Results of 2003–2004 Administrative
Review and Partial Rescission of
Review, 71 FR 2517, 2521 (January 17,
2006). Under section 773(c)(3) of the
Act, FOP include, but are not limited to:
(1) hours of labor required; (2) quantities
of raw materials employed; (3) amounts
of energy and other utilities consumed;
and (4) representative capital costs. The
Department based NV on FOP reported
by the respondent for materials, energy,
labor and packing.
Thus, in accordance with section
773(c) of the Act, we calculated NV by
adding together the values of the FOPs,
general expenses, profit, and packing
costs.10 We calculated FOP values by
multiplying the reported per–unit
factor–consumption rates by publicly
available surrogate values (except as
discussed below). Specifically, we
valued material, labor, energy, and
packing by multiplying the amount of
the factor consumed in producing
subject merchandise by the average unit
surrogate value of the factor. In
addition, we added freight costs to the
surrogate costs that we calculated for
material inputs. We calculated freight
costs by multiplying surrogate freight
rates by the shorter of the reported
distance from the domestic supplier to
the factory that produced the subject
10 We based the values of the FOPs on surrogate
values (see ‘‘Selected Surrogate Values’’ section
below).
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merchandise or the distance from the
nearest seaport to the factory that
produced the subject merchandise, as
appropriate. This adjustment is in
accordance with the U.S. Court of
Appeals for the Federal Circuit’s
decision in Sigma Corp. v. United
States, 117 F.3d 1401, 1407–08 (Fed.
Cir. 1997). We increased the calculated
costs of the FOPs for surrogate general
expenses and profit. See Analysis
Memorandum at 4.
With respect to the application of the
by–product offset to NV, consistent with
the Department’s determination in the
antidumping duty investigation of
diamond sawblades from the PRC,
because our surrogate financial
statements contain no references to the
treatment of by–products and because
Shanghai Jinneng reported that it sold
silica fume, a by–product, we will
deduct the surrogate value of silica fume
from NV. This is consistent with
accounting principles based on a
reasonable assumption that if a
company sells a by–product, the by–
product necessarily incurs expenses for
overhead, selling, general &
administrative expenses (‘‘SG&A’’), and
profit. See, e.g., 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), and accompanying
Issues and Decisions Memorandum at
Comment 9, unchanged in Notice of
Amended Final Determination of Sales
at Less Than Fair Value: Diamond
Sawblades and Parts Thereof from the
People’s Republic of China, 71 FR 35864
(June 22, 2006).
Selected Surrogate Values
In selecting the surrogate values, we
considered the quality, specificity, and
contemporaneity of the data.
In selecting the best available
information for valuing FOPs in
accordance with section 773(c)(1) of the
Act, the Department’s practice is to
select, to the extent practicable,
surrogate values which are non–export
average values, most contemporaneous
with the POR, product–specific, and
tax–exclusive. See, e.g., Pure
Magnesium from the People’s Republic
of China: Preliminary Results of 2007–
2008 Antidumping Duty Administrative
Review, 74 FR 27090 (June 8, 2009),
unchanged in Pure Magnesium from the
People’s Republic of China: Final
Results of Antidumping Duty
Administrative Review, 74 FR 66089
(December 14, 2009). The record shows
that the Indian import statistics
represent import data that are
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contemporaneous with the POR,
product–specific, and tax–exclusive.
Thus, for these preliminary results, in
accordance with the Department’s
practice, the Department used data from
Indian Import Statistics in the Global
Trade Atlas (‘‘GTA’’) and other publicly
available Indian sources in order to
calculate surrogate values for Shanghai
Jinneng’s FOPs (i.e., packing and raw
material inputs) except where listed
below.
In past cases, it has been the
Department’s practice to value various
factors of production (‘‘FOPs’’) using
import statistics of the primary selected
surrogate country from World Trade
Atlas (‘‘WTA’’), as published by Global
Trade Information Services (‘‘GTIS’’).
See Certain Preserved Mushrooms from
the People’s Republic of China:
Preliminary Results of Antidumping
Duty New Shipper Review, 74 FR 50946,
50950 (October 2, 2009), unchanged in
Certain Preserved Mushrooms from the
People’s Republic of China: Final
Results of Antidumping Duty New
Shipper Review, 74 FR 65520 (Dec. 10,
2009).
However, in October 2009, the
Department learned that Indian import
data obtained from the WTA, as
published by GTIS, began identifying
the original reporting currency for India
as the U.S. Dollar. The Department then
contacted GTIS about the change in the
original reporting currency for India
from the Indian Rupee to the U.S.
Dollar. Officials at GTIS explained that
while GTIS obtains data on imports into
India directly from the Ministry of
Commerce, Government of India, as
denominated and published in Indian
Rupees, the WTA software is limited
with regard to the number of significant
digits it can manage. Therefore, GTIS
made a decision to change the original
reporting currency for Indian data from
the Indian Rupee to the U.S. Dollar in
order to reduce the loss of significant
digits when obtaining data through the
WTA software. GTIS explained that it
converts the Indian Rupee to the U.S.
Dollar using the monthly Federal
Reserve exchange rate applicable to the
relevant month of the data being
downloaded and converted. See Certain
Oil Country Tubular Goods from the
People’s Republic of China: Final
Determination of Sales at Less Than
Fair Value, Affirmative Final
Determination of Critical
Circumstances, and Final Determination
of Targeted Dumping, 75 FR 20335
(April 19, 2010), and accompanying
Issues and Decision Memorandum at
Comment 4.
However, the data reported in the
Global Trade Atlas (‘‘GTA’’) software,
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published by GTIS, reports import
statistics, such as from India, in the
original reporting currency and thus
these data correspond to the original
currency value reported by each
country. Additionally, the data reported
in the GTA software are reported to the
nearest digit and thus there is not a loss
of data by rounding, as there is with the
data reported by the WTA software.
Consequently, the Department will now
obtain import statistics from GTA for
valuing various FOPs because the GTA
import statistics are in the original
reporting currency of the country from
which the data are obtained and have
the same level of accuracy as the
original data released.
In accordance with the OTCA 1988
legislative history, the Department
continues to apply its long–standing
practice of disregarding surrogate values
if it has a reason to believe or suspect
the source data may be subsidized.11 In
this regard, the Department has
previously found that it is appropriate
to disregard such prices from India,
Indonesia, South Korea and Thailand
because we have determined that these
countries maintain broadly available,
non–industry specific export
subsidies.12 Based on the existence of
these subsidy programs that were
generally available to all exporters and
producers in these countries at the time
of the POR, the Department finds that it
is reasonable to infer that all exporters
from India, Indonesia, South Korea and
Thailand may have benefitted from
these subsidies. Additionally, we
excluded from our calculations imports
that were labeled as originating from an
unspecified country because we could
not determine whether they were from
an NME country. Where we could only
obtain surrogate values that were not
contemporaneous with the POR, we
inflated (or deflated) the surrogate
values using the Indian Wholesale Price
11 Omnibus Trade and Competitiveness Act of
1988, Conf. Report to Accompany H.R. 3, H.R. Rep.
No. 576, 100th Cong., 2nd Sess. (1988) (‘‘OTCA
1988’’) at 590.
12 See e.g., Expedited Sunset Review of the
Countervailing Duty Order on Carbazole Violet
Pigment 23 from India, 75 FR 13257 (March 19,
2010) and accompanying Issues and Decision
Memorandum at pages 4-5; Expedited Sunset
Review of the Countervailing Duty Order on Certain
Cut-to-Length Carbon Quality Steel Plate from
Indonesia, 70 FR 45692 (August 8, 2005) and
accompanying Issues and Decision Memorandum at
page 4; See Corrosion-Resistant Carbon Steel Flat
Products from the Republic of Korea: Final Results
of Countervailing Duty Administrative Review, 74
FR 2512 (January 15, 2009) and accompanying
Issues and Decision Memorandum at pages 17, 1920; See Certain Hot-Rolled Carbon Steel Flat
Products from Thailand: Final Results of
Countervailing Duty Determination, 66 FR 50410
(October 3, 2001) and accompanying Issues and
Decision Memorandum at page 23.
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Index (‘‘WPI’’) as published in the
International Financial Statistics of the
International Monetary Fund.
We used the following surrogate
values in our preliminary results of
review (see Surrogate Value
Memorandum for details). We valued
charcoal, petroleum coke, wood, carbon
electrodes, aluminum scrap, and
polyethylene/polypropylene bags using
June 2008 through May 2009 weighted–
average Indian import values derived
from the ‘‘GTA.’’ See https://
www.gtis.com/gta.htm. The Indian
import statistics that we obtained from
the GTA were published by the
Directorate General of Commercial
Intelligence and Statistics of the
Ministry of Commerce and Industry,
Government of India, and are
contemporaneous with the POR. See
Surrogate Value Memorandum at 1.
We valued quartz using the price of
Grade I quartz with a silicon dioxide
content of 98 percent or higher from the
Indian Bureau of Mines’ publication:
2007 edition of the Indian Minerals
Yearbook (‘‘IBM Yearbook’’). We inflated
the value for quartz using the POR
average WPI rate. Id at 3.
We valued coal using Grade A coal
prices obtained from the IBM Yearbook.
We inflated the value for coal using the
POR average WPI rate. Id.
We valued electricity using rates for
large industries at 33KV, as published
by the Central Electricity Authority of
the Government of India in ‘‘Electricity
Tariff & Duty and Average Rates of
Electricity Supply in India’’, dated
March 2008. These electricity rates
represent actual country–wide, publicly
available information on tax–exclusive
electricity rates charged to industries in
India. As the rates listed in this source
became effective on a variety of different
dates, we are not adjusting the average
value for inflation. For additional
details, see id.
We valued truck freight using a per–
unit average rate calculated from POR
data on the following web site: https://
www.infobanc.com/logistics/
logtruck.htm. The logistics section of
this website contains inland freight
truck rates between many large Indian
cities. Id. at 8.
We valued rail freight using a per–
unit average rate from https://
www.indianrailways.gov.in, the Indian
Ministry of Railways website. Id. We
inflated the value for rail freight using
the POR average WPI rate. Id.
Shanghai Jinneng claimed silica fume
as a by–product offset since it produced
silica fume and sold a portion of this
production during the POR. We valued
silica fume using GTA data for entries
under HTS 2811.22 (silicon dioxide)
VerDate Mar<15>2010
16:53 Jul 14, 2010
Jkt 220001
from countries identified as silicon
metal or ferrosilicon producers by the
USGS for ferroalloys published by the
U.S. Department of the Interior, dated
September 2009. For a more detailed
discussion, see id. at 4.
For direct labor, indirect labor, and
packing labor, pursuant to a recent
decision by the Court of Appeals for the
Federal Circuit, we have calculated an
hourly wage rate to value the reported
labor input by averaging earnings and/
or wages in countries that are
economically comparable to the PRC
and that are significant producers of
comparable merchandise. For a more
detailed discussion, see id.
Lastly, we valued selling, general and
administrative expenses, factory
overhead costs, and profit using the
contemporaneous 2008–2009 financial
statements of FACOR Alloys Ltd., VBC
Ferro Alloys Ltd., Sova Ispat Alloys
(Mega Projects) Ltd., and Saturn Ferro
Alloys Private Ltd., Indian producers of
merchandise that is comparable to
subject merchandise. Id. at 9. We did
not use the 2008–2009 financial
statement of Centom Steels and Ferro
Alloys Ltd. placed on the record by
Shanghai Jinneng, because it contained
evidence of subsidies.
In accordance with 19 CFR
351.301(c)(3)(ii), interested parties may
submit publicly available information
with which to value FOPs in the final
results of review within 20 days after
the date of publication of the
preliminary results of review.
Currency Conversion
We made currency conversions into
U.S. dollars, in accordance with section
773A(a) of the Act, based on the
exchange rates in effect on the dates of
the U.S. sales as certified by the Federal
Reserve Bank.
Preliminary Results of Review
We preliminarily determine that no
dumping margin exists for Shanghai
Jinneng for the period June 1, 2008
through July 31, 2009.
Disclosure
The Department will disclose
calculations performed for these
preliminary results to the parties within
10 days of the date of the public
announcement of the results of this
review in accordance with 19 CFR
351.224(b).
Comments
Interested parties may submit written
comments no later than 30 days after the
date of publication of these preliminary
results of review. See 19 CFR
351.309(c)(1)(ii). Rebuttal comments
PO 00000
Frm 00009
Fmt 4703
Sfmt 4703
41147
must be limited to the issues raised in
the written comments and may be filed
no later than five days after the time
limit for filing the case briefs. See 19
CFR 351.309(d). Parties submitting
written comments or rebuttal comments
are requested to provide the Department
with an additional copy of those
comments on diskette. Any interested
party may request a hearing within 30
days of publication of these preliminary
results. See 19 CFR 351.310(c). Any
hearing, if requested, ordinarily will be
held two days after the scheduled date
for submission of rebuttal briefs. See 19
CFR 351.310(d). Parties should confirm
by telephone the date, time, and
location of the hearing two days before
the scheduled date.
The Department will issue the final
results of the administrative review,
which will include the results of its
analysis of issues raised in the briefs,
within 120 days of publication of these
preliminary results, in accordance with
section 751(a)(3)(A) of the Act, unless
the time limit is extended.
Assessment Rates
Pursuant to 19 CFR 351.212, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries of subject
merchandise in accordance with the
final results of this review. For
assessment purposes, the Department
calculated exporter/importer- (or
customer) -specific assessment rates for
merchandise subject to this review.
Where appropriate, the Department
calculated an ad valorem rate for each
importer (or customer) by dividing the
total dumping margins for reviewed
sales to that party by the total entered
values associated with those
transactions. For duty–assessment rates
calculated on this basis, the Department
will direct CBP to assess the resulting
ad valorem rate against the entered
customs values for the subject
merchandise. Where appropriate, the
Department calculated a per–unit rate
for each importer (or customer) by
dividing the total dumping margins for
reviewed sales to that party by the total
sales quantity associated with those
transactions. For duty–assessment rates
calculated on this basis, the Department
will direct CBP to assess the resulting
per–unit rate against the entered
quantity of the subject merchandise.
Where an importer- (or customer)
-specific assessment rate is de minimis
(i.e., less than 0.50 percent), the
Department will instruct CBP to assess
that importer (or customer’s) entries of
subject merchandise without regard to
antidumping duties. The Department
intends to instruct CBP to liquidate
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Federal Register / Vol. 75, No. 135 / Thursday, July 15, 2010 / Notices
entries containing subject merchandise
exported by the PRC–wide entity at the
PRC–wide rate in the final results of this
review. The Department intends to issue
appropriate assessment instructions
directly to CBP 15 days after publication
of the final results of this review.
Cash Deposit Requirements
The following cash deposit
requirements will be effective for
shipments of subject merchandise from
the PRC entered, or withdrawn from
warehouse, for consumption on or after
the publication date of the final results
of the review, as provided by sections
751(a)(1) and (a)(2)(C) of the Act: (1) for
all respondents receiving a separate rate,
the cash deposit rate will be that
established in the final results of the
review; (2) for previously investigated or
reviewed PRC and non–PRC exporters
not listed above that have separate rates,
the cash deposit rate will continue to be
the exporter–specific rate published for
the most recent period; (3) for all PRC
exporters of subject merchandise that
have not been found to be entitled to a
separate rate, the cash deposit rate will
be the PRC–wide rate of 139.49 percent;
and (4) for all non–PRC exporters of
subject merchandise which have not
received their own rate, the cash deposit
rate will be the rate applicable to the
PRC exporters that supplied that non–
PRC exporter. These deposit
requirements, when imposed, shall
remain in effect until further notice.
srobinson on DSKHWCL6B1PROD with NOTICES
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f) to file a certificate regarding
the reimbursement of antidumping
duties prior to liquidation of the
relevant entries during this review
period. Failure to comply with this
requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
The Department is issuing and
publishing these preliminary results of
administrative review in accordance
with section 777(i)(1) of the Act, and 19
CFR 351.221(b)(4).
Dated: July 7, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–17299 Filed 7–14–10; 8:45 am]
BILLING CODE 3510–DS–S
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16:53 Jul 14, 2010
Jkt 220001
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–601]
Tapered Roller Bearings and Parts
Thereof, Finished or Unfinished, From
the People’s Republic of China:
Preliminary Results of the 2008–2009
Administrative Review of the
Antidumping Duty Order
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from
interested parties, the Department of
Commerce (‘‘Department’’) is currently
conducting the 2008–2009
administrative review of the
antidumping duty order on tapered
roller bearings and parts thereof,
finished or unfinished (‘‘TRBs’’), from
the People’s Republic of China (‘‘PRC’’),
covering the period June 1, 2008,
through May 31, 2009. We have
preliminarily determined that sales have
been made below normal value (‘‘NV’’)
by certain companies subject to this
review. If these preliminary results are
adopted in our final results of this
review, we will instruct U.S. Customs
and Border Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the period of
review (‘‘POR’’) for which the importerspecific assessment rates are above de
minimis.
Interested parties are invited to
comment on these preliminary results.
We will issue final results no later than
120 days from the date of publication of
this notice.
DATES: Effective Date: July 15, 2010.
FOR FURTHER INFORMATION CONTACT:
Brendan Quinn or Trisha Tran, AD/CVD
Operations, Office 8, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–5848 or (202) 482–
4852, respectively.
Background
On June 15, 1987, the Department
published in the Federal Register the
antidumping duty order on TRBs from
the PRC.1 On June 1, 2009, the
Department published a notice of
opportunity to request an administrative
review of the antidumping duty order
on TRBs from the PRC.2 On June 30,
1 See Notice of Antidumping Duty Order: Tapered
Roller Bearings and Parts Thereof, Finished or
Unfinished, From the People’s Republic of China,
52 FR 22667 (June 15, 1987).
2 See Antidumping or Countervailing Duty Order,
Finding, or Suspended Investigation; Opportunity
PO 00000
Frm 00010
Fmt 4703
Sfmt 4703
2009, the sole respondent in the prior
review, the majority Spungen familyowned joint-venture Peer Bearing
Company Ltd.—Changshan (‘‘PBCD/
CPZ’’) and its wholly Spungen-familyowned U.S. sales affiliate, Peer Bearing
Company (‘‘PBCD/Peer’’) (collectively
‘‘PBCD’’), requested that the Department
conduct an administrative review of its
sales of subject merchandise prior to the
acquisition of both companies by AB
SKF during the POR. On June 30, 2009,
the wholly AB SKF-owned Changshan
Peer Bearing Company, Ltd. (‘‘SKF/
CPZ’’) and its wholly AB SKF-owned
U.S. sales affiliate, Peer Bearing
Company (‘‘SKF/Peer’’) (collectively
‘‘SKF’’), requested that the Department
conduct an administrative review of its
sales of subject merchandise subsequent
to the acquisition of the PBCD
companies during the POR.3 On June
30, 2009, the Timken Company, of
Canton, Ohio (‘‘Petitioner’’) requested
that the Department conduct an
administrative review of all entries of
subject merchandise produced and/or
exported by CPZ, regardless of its
ownership during the POR.
On June 30, 2009, Hubei New Torch
Science & Technology Company Co.,
Ltd. (‘‘New Torch’’), a producer and
exporter of subject merchandise, also
requested that the Department conduct
an administrative review of its sales of
subject merchandise. On July 29, 2009,
the Department initiated the
administrative review of the
antidumping duty order on TRBs from
the PRC for the period June 1, 2008,
through May 31, 2009.4
On August 26, 2009, the Department
issued its antidumping duty
questionnaire to PBCD, SKF, and New
Torch. Between October 14, 2009, and
June 18, 2010, PBCD, SKF, and New
Torch responded to the Department’s
original and supplemental
questionnaires. On October 1, 2009, we
invited all interested parties to submit
publicly available information to value
factors of production (‘‘FOPs’’) for
consideration in the Department’s
preliminary results of review. On
December 7, 2009, SKF submitted
publicly available information to value
FOPs for the preliminary results. On
December 17, 2009, and June 16, 2010,
PBCD submitted surrogate value
To Request Administrative Review, 74 FR 26202
(June 1, 2009).
3 Without consideration of ownership, the
Changshan-based TRB production facility is
referred to as ‘‘CPZ’’ and the Illinois-based U.S. sales
affiliate is referred to as ‘‘Peer.’’
4 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Deferral of Administrative Review, 74 FR 37690
(July 29, 2009).
E:\FR\FM\15JYN1.SGM
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]]>Agencies
[Federal Register Volume 75, Number 135 (Thursday, July 15, 2010)]
[Notices]
[Pages 41143-41148]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-17299]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-806]
Silicon Metal from the People's Republic of China: Preliminary
Results and Preliminary Rescission, in Part, of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from interested parties, the
Department of Commerce (``Department'') is conducting an administrative
review of the antidumping duty order on silicon metal from the People's
Republic of China (``PRC''). The period of review (``POR'') is June 1,
2008, through May 31, 2009. This administrative review covers one
mandatory respondent and two respondents that claim they did not ship
or sell subject merchandise to the United States during the POR.
We found no margin for the U.S. sales subject to this
administrative review. If these preliminary results are adopted in our
final results of review, we will instruct U.S. Customs and Border
Patrol (``CBP'') to liquidate the appropriate entries without regard to
antidumping duties.
We invite interested parties to comment on these preliminary
results. Parties who submit comments are requested to submit with each
argument a statement of the issue and a brief summary of the argument.
We intend to issue the final results of this review no later than 120
days from the date of publication of this notice.
FOR FURTHER INFORMATION CONTACT: Melissa Blackledge or Howard Smith,
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-
3518, and (202) 482-5193, respectively.
SUPPLEMENTARY INFORMATION: The Department received a timely request
from Petitioner, Globe Metallurgical Inc. (``Petitioner''), in
accordance with 19 CFR 351.213(b), for an administrative review of the
antidumping duty order on silicon metal from the PRC of three
companies: Datong Jinneng Industrial Silicon Co., Ltd. (``Datong
Jinneng''),\1\ Jiangxi Gangyuan Silicon Industry Co., Ltd. (``Jiangxi
Gangyuan''),\2\ and Shanghai Jinneng International Trade Co., Ltd.
(``Shanghai Jinneng''). The Department also received a timely request
from Shanghai Jinneng and Datong Jinneng (Shanghai Jinneng's affiliated
supplier and producer of subject merchandise) for an administrative
review of Shanghai Jinneng. On July 29, 2009, the Department published
a notice of initiation of an antidumping duty administrative review on
silicon metal from the PRC, in which it initiated a review of Datong
Jinneng, Jiangxi Gangyuan, and Shanghai Jinneng. See Initiation of
Antidumping and Countervailing Duty Administrative Reviews and Deferral
of Administrative Review, 74 FR 37690 (July 29, 2009) (``Initiation
Notice'').
---------------------------------------------------------------------------
\1\ The abbreviation ``Inc.'' incorrectly appeared after
``Datong Jinneng Industrial Silicon Co.'' in the Initiation Notice.
The abbreviation ``Ltd.'' should have been used.
\2\ We have used the abbreviation ``Co.'' rather than
``Company'', which was used in the Initiation Notice, because
``Co.'' is used in the Automated Customs System Module.
---------------------------------------------------------------------------
On September 11, 2009, the Department issued the antidumping
questionnaire to Shanghai Jinneng based on the results of a CBP import
data query placed on the record on August 17, 2009, which indicated
that only Shanghai Jinneng made sales of subject merchandise during the
POR. Both Jiangxi Gangyuan, and Datong Jinneng reported that they had
no entries of subject merchandise during the POR. Between October 2009
and May 2010, Shanghai Jinneng responded to the Department's
questionnaire and supplemental questionnaires and Petitioner commented
on Shanghai Jinneng's responses.
In response to the Department's December 9, 2009, letter providing
parties with an opportunity to submit comments regarding surrogate
country and surrogate value selection,\3\ Shanghai Jinneng and
Petitioner filed surrogate country and surrogate value comments from
January 2010 through June 2010.
---------------------------------------------------------------------------
\3\ See Letter from Howard Smith, Program Manager, Office 4, to
All Interested Parties, ``Antidumping Duty Administrative Review of
Silicon Metal from the People's Republic of China (PRC),'' dated
December 9, 2009.
---------------------------------------------------------------------------
On March 4, 2010, the Department extended the deadline for the
issuance of the preliminary results of the administrative review until
July 7, 2010. See Silicon Metal From the People's Republic of China:
Extension of Time Limit for the Preliminary Results of Antidumping Duty
Administrative Review, 75 FR 9869 (March 4, 2010).
Scope of the Order
The product covered by the order is silicon metal containing at
least 96.00 but less than 99.99 percent of silicon by weight, and
silicon metal with a higher aluminum content containing between 89 and
96 percent silicon by weight. The subject merchandise is currently
classifiable under item numbers 2804.69.10 and 2804.69.50 of the
Harmonized Tariff Schedule of the United States (``HTSUS'') as a
chemical product, but is commonly referred to as a metal.
Semiconductor-grade silicon (silicon metal containing by weight not
less than 99.99 percent of silicon and provided for in subheading
2804.61.00 of the HTSUS) is not subject to this order. This order is
not limited to silicon metal used only as an alloy agent or in the
chemical industry. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the
merchandise is dispositive.
Intent To Rescind the Administrative Review, in Part
As noted above, Jiangxi Gangyuan and Datong Jinneng reported that
they did not have any entries of subject merchandise during the POR. To
test these claims, the Department ran a CBP data query and issued a no-
shipment inquiry to CBP asking it to provide any
[[Page 41144]]
information that contradicted the companies' claims. The Department has
not obtained any evidence contradicting Jiangxi Gangyuan's and Datong
Jinneng's claims and, thus, has preliminarily rescinded this
administrative review with respect to these companies pursuant to 19
CFR 351.213(d)(3):
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME'') country. In
accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as
amended (the ``Act''), any determination that a foreign country is an
NME country shall remain in effect until revoked by the administering
authority. None of the parties to this proceeding have contested such
treatment. Accordingly, the Department calculated normal value (``NV'')
in accordance with section 773(c) of the Act, which applies to NME
countries.
Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assessed a single
antidumping duty rate. It is the Department's policy to assign all
exporters of merchandise subject in an NME country this single rate
unless an exporter can demonstrate that it is sufficiently independent
so as to be entitled to a separate rate. Exporters can demonstrate this
independence through the absence of both de jure and de facto
governmental control over export activities. The Department analyzes
each entity exporting the subject merchandise under a test set out 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. See Notice of Final Determination of Sales at
Less Than Fair Value: Creatine Monohydrate from the People's Republic
of China, 64 FR 71104, 71105 (December 20, 1999) (where the respondent
was wholly foreign-owned, and thus, qualified for a separate rate).
Wholly Chinese-Owned
Shanghai Jinneng stated that it is a wholly Chinese-owned
company.\4\ Therefore, the Department must analyze whether this
respondent can demonstrate the absence of both de jure and de facto
governmental control over export activities.
---------------------------------------------------------------------------
\4\ See Shanghai Jinneng's Section A Response (``SAR''), at 2.
---------------------------------------------------------------------------
1. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Shanghai Jinneng supports a preliminary
finding of de jure absence of governmental control based on the
following: (1) there is an absence of restrictive stipulations
associated with the company's business and export licenses; (2) there
are applicable legislative enactments decentralizing control of PRC
companies; and (3) there are formal measures by the government
decentralizing control of PRC companies.\5\
---------------------------------------------------------------------------
\5\ See Shanghai Jinneng's SAR, at 4-9.
---------------------------------------------------------------------------
2. Absence of De Facto Control
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. See Silicon Carbide, 59 FR at 22586-87; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol
From the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).
The Department has determined that an analysis of de facto control is
critical in determining whether respondents are, in fact, subject to a
degree of governmental control which would preclude the Department from
assigning separate rates.
We determine that the evidence on the record supports a preliminary
finding of de facto absence of governmental control with respect to
Shanghai Jinneng based on record statements and supporting
documentation showing that the company: 1) sets its own export prices
independent of the government and without the approval of a government
authority; 2) has the authority to negotiate and sign contracts and
other agreements; 3) has autonomy from the government regarding the
selection of management; and 4) retains the proceeds from its sales and
makes independent decisions regarding disposition of profits or
financing of losses.\6\
---------------------------------------------------------------------------
\6\ See Shanghai Jinneng's SAR, at 10-13.
---------------------------------------------------------------------------
The evidence placed on the record of this administrative review by
Shanghai Jinneng demonstrates an absence of de jure and de facto
government control with respect to the company's exports of the
merchandise under review, in accordance with the criteria identified in
Sparklers and Silicon Carbide. Therefore, we have preliminary granted
Shanghai Jinneng separate rate status.
Selection of a Surrogate Country
When the Department conducts an antidumping duty administrative
review of imports from a NME country, section 773(c)(1) of the Act
directs the Department to base NV, in most cases, on the NME producer's
factors of production (``FOP'') valued in a surrogate market-economy
country or countries considered appropriate by the Department. In
accordance with section 773(c)(4) of the Act, the Department will value
FOP using ``to the extent possible, the prices or costs of factors of
production in one or more market-economy countries that are - (A) at a
level of economic development comparable to that of the NME country,
and (B) significant producers of comparable merchandise.'' Further,
pursuant to 19 CFR 351.408(c)(2), the Department will normally value
FOP in a single country.
In the instant review, the Department identified India, Indonesia,
the Philippines, Colombia, Thailand, and Peru as a non-exhaustive list
of countries that are at a level of economic development comparable to
the PRC and for which good quality data is most
[[Page 41145]]
likely available.\7\ On January 13, 2010, the Petitioner and Shanghai
Jinneng proposed selecting India as the surrogate country because it is
at a level of economic development comparable to the PRC and the U.S.
Geological Survey, Minerals Yearbook (``USGS'') and Metal Bulletin,
Inc. indicate that India is a significant producer of comparable
merchandise.\8\ With respect to data considerations, in selecting a
surrogate country, it is the Department's practice that, ''. . . if
more than one country has survived the selection process to this point,
the country with the best factors data is selected as the primary
surrogate country.'' See Policy Bulletin 04.1: Non-Market Economy
Surrogate Country Selection Process, (March 1, 2004) (``Policy Bulletin
04.1'') available at https://ia.ita.doc.gov. Currently, the record
contains surrogate value information, including possible surrogate
financial statements, only from India. Thus, the Department is
preliminarily selecting India as the surrogate country on the basis
that: (1) it is at a comparable level of economic development to the
PRC, pursuant to 773(c)(4) of the Act; (2) it is a significant producer
of comparable merchandise; and (3) we have reliable data from India
that we can use to value the FOP. Therefore, we have calculated NV
using Indian prices, when available and appropriate, to value Shanghai
Jinneng's FOP. See Memorandum to the File through Howard Smith, Program
Manager, AD/CVD Operations, Office 4, from Melissa Blackledge, Senior
International Trade Analyst, regarding ``Antidumping Duty
Administrative Review of Silicon Metal from the People's Republic of
China: Selection of Factor Values,'' dated July 7, 2010 (``Surrogate
Value Memorandum''). In accordance with 19 CFR 351.301(c)(3)(ii),
interested parties may submit publicly-available information to value
FOP until 20 days after the date of publication of the preliminary
results.\9\
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\7\ See memorandum entitled, ``Request for a List of Surrogate
Countries for an Administrative Review of the Antidumping Duty Order
on Silicon Metal (``Silicon Metal'') from the People's Republic of
China (``PRC''),'' dated October 28, 2009.
\8\ See Shanghai Jinneng's January 13, 2010, and Respondent's
January 13, 2010 submissions at 6 and 2, respectively.
\9\ In accordance with 19 CFR 351.301(c)(1), for the final
results of this administrative review, interested parties may submit
factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information placed on the record. The
Department generally will not accept the submission of additional,
previously absent-from-the-record alternative surrogate value
information pursuant to 19 CFR 351.301(c)(1). See Glycine from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and Decision Memorandum
at Comment 2.
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Fair Value Comparisons
In accordance with section 777A(d)(2) of the Act, to determine
whether Shanghai Jinneng sold silicon metal to the United States at
less than NV, we compared the weighted-average export of the silicon
metal to the NV of the silicon metal, as described in the ``U.S.
Price,'' and ``Normal Value'' sections of this notice.
Export Price
The Department considered the U.S. prices of sales by Shanghai
Jinneng to be export prices (``EPs'') in accordance with section 772(a)
of the Act, because these were the prices at which the subject
merchandise was first sold before the date of importation by the
producer/exporter of the subject merchandise outside of the United
States to an unaffiliated purchaser in the United States. We calculated
EPs based on prices to unaffiliated purchaser(s) in the United States.
Shanghai Jinneng reported that it incurred value added tax
(``VAT'') and an export tax on subject merchandise. Petitioner argues
that the Department should deduct the export tax from U.S. price,
which, according to petitioner, is in accordance with the statute and
the Department's practice of calculating a tax-neutral dumping margin.
Shanghai Jinneng contends that in the 2007-2008 administrative review,
the Department concluded that its practice, which had been upheld by
the Court of International Trade (``CIT'') and Court of Appeals for the
Federal Circuit, is not to reduce U.S. price for tax payments by NME
respondents to NME governments. Shanghai Jinneng claims that the facts
related to export taxes in this administrative review are the same as
in the 2007-2008 administrative review. In the 2007-2008 administrative
review, the Department determined not to reduce U.S. price by the
amount of Chinese export tax and VAT on silicon metal exports. In this
instant review, consistent with Magnesium Corp. and the 2007-2008
administrative review, the Department is not reducing U.S. price for
export taxes or VAT in China. See Silicon Metal from the People's
Republic China: Final Results and Partial Rescission of Antidumping
Duty Administrative Review, 75 FR 1592 (Jan. 12, 2010), and
accompanying Issues and Decision Memorandum at Comment 1; Magnesium
Corp. of America, et. al. v. United States, et. al.,166 F.3d 1364,
1370-71 (Fed. Cir.1999) (``Magnesium Corp.'').
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 country and the available 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. When determining NV
in an NME context, the Department uses an FOP methodology because the
presence of government controls on various aspects of NMEs renders
price comparisons and the calculation of production costs invalid under
its normal methodologies. See Tapered Roller Bearings and Parts
Thereof, Finished or Unfinished, From the People's Republic of China:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent to Rescind in Part, 70 FR 39744, 39754 (July 11,
2005), unchanged in Tapered Roller Bearings and Parts Thereof, Finished
and Unfinished, from the People's Republic of China: Final Results of
2003-2004 Administrative Review and Partial Rescission of Review, 71 FR
2517, 2521 (January 17, 2006). Under section 773(c)(3) of the Act, FOP
include, but are not limited to: (1) hours of labor required; (2)
quantities of raw materials employed; (3) amounts of energy and other
utilities consumed; and (4) representative capital costs. The
Department based NV on FOP reported by the respondent for materials,
energy, labor and packing.
Thus, in accordance with section 773(c) of the Act, we calculated
NV by adding together the values of the FOPs, general expenses, profit,
and packing costs.\10\ We calculated FOP values by multiplying the
reported per-unit factor-consumption rates by publicly available
surrogate values (except as discussed below). Specifically, we valued
material, labor, energy, and packing by multiplying the amount of the
factor consumed in producing subject merchandise by the average unit
surrogate value of the factor. In addition, we added freight costs to
the surrogate costs that we calculated for material inputs. We
calculated freight costs by multiplying surrogate freight rates by the
shorter of the reported distance from the domestic supplier to the
factory that produced the subject
[[Page 41146]]
merchandise or the distance from the nearest seaport to the factory
that produced the subject merchandise, as appropriate. This adjustment
is in accordance with the U.S. Court of Appeals for the Federal
Circuit's decision in Sigma Corp. v. United States, 117 F.3d 1401,
1407-08 (Fed. Cir. 1997). We increased the calculated costs of the FOPs
for surrogate general expenses and profit. See Analysis Memorandum at
4.
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\10\ We based the values of the FOPs on surrogate values (see
``Selected Surrogate Values'' section below).
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With respect to the application of the by-product offset to NV,
consistent with the Department's determination in the antidumping duty
investigation of diamond sawblades from the PRC, because our surrogate
financial statements contain no references to the treatment of by-
products and because Shanghai Jinneng reported that it sold silica
fume, a by-product, we will deduct the surrogate value of silica fume
from NV. This is consistent with accounting principles based on a
reasonable assumption that if a company sells a by-product, the by-
product necessarily incurs expenses for overhead, selling, general &
administrative expenses (``SG&A''), and profit. See, e.g., 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), and accompanying Issues and Decisions Memorandum at Comment
9, unchanged in Notice of Amended Final Determination of Sales at Less
Than Fair Value: Diamond Sawblades and Parts Thereof from the People's
Republic of China, 71 FR 35864 (June 22, 2006).
Selected Surrogate Values
In selecting the surrogate values, we considered the quality,
specificity, and contemporaneity of the data.
In selecting the best available information for valuing FOPs in
accordance with section 773(c)(1) of the Act, the Department's practice
is to select, to the extent practicable, surrogate values which are
non-export average values, most contemporaneous with the POR, product-
specific, and tax-exclusive. See, e.g., Pure Magnesium from the
People's Republic of China: Preliminary Results of 2007-2008
Antidumping Duty Administrative Review, 74 FR 27090 (June 8, 2009),
unchanged in Pure Magnesium from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 74 FR 66089
(December 14, 2009). The record shows that the Indian import statistics
represent import data that are contemporaneous with the POR, product-
specific, and tax-exclusive. Thus, for these preliminary results, in
accordance with the Department's practice, the Department used data
from Indian Import Statistics in the Global Trade Atlas (``GTA'') and
other publicly available Indian sources in order to calculate surrogate
values for Shanghai Jinneng's FOPs (i.e., packing and raw material
inputs) except where listed below.
In past cases, it has been the Department's practice to value
various factors of production (``FOPs'') using import statistics of the
primary selected surrogate country from World Trade Atlas (``WTA''), as
published by Global Trade Information Services (``GTIS''). See Certain
Preserved Mushrooms from the People's Republic of China: Preliminary
Results of Antidumping Duty New Shipper Review, 74 FR 50946, 50950
(October 2, 2009), unchanged in Certain Preserved Mushrooms from the
People's Republic of China: Final Results of Antidumping Duty New
Shipper Review, 74 FR 65520 (Dec. 10, 2009).
However, in October 2009, the Department learned that Indian import
data obtained from the WTA, as published by GTIS, began identifying the
original reporting currency for India as the U.S. Dollar. The
Department then contacted GTIS about the change in the original
reporting currency for India from the Indian Rupee to the U.S. Dollar.
Officials at GTIS explained that while GTIS obtains data on imports
into India directly from the Ministry of Commerce, Government of India,
as denominated and published in Indian Rupees, the WTA software is
limited with regard to the number of significant digits it can manage.
Therefore, GTIS made a decision to change the original reporting
currency for Indian data from the Indian Rupee to the U.S. Dollar in
order to reduce the loss of significant digits when obtaining data
through the WTA software. GTIS explained that it converts the Indian
Rupee to the U.S. Dollar using the monthly Federal Reserve exchange
rate applicable to the relevant month of the data being downloaded and
converted. See Certain Oil Country Tubular Goods from the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, Affirmative Final Determination of Critical Circumstances, and
Final Determination of Targeted Dumping, 75 FR 20335 (April 19, 2010),
and accompanying Issues and Decision Memorandum at Comment 4.
However, the data reported in the Global Trade Atlas (``GTA'')
software, published by GTIS, reports import statistics, such as from
India, in the original reporting currency and thus these data
correspond to the original currency value reported by each country.
Additionally, the data reported in the GTA software are reported to the
nearest digit and thus there is not a loss of data by rounding, as
there is with the data reported by the WTA software. Consequently, the
Department will now obtain import statistics from GTA for valuing
various FOPs because the GTA import statistics are in the original
reporting currency of the country from which the data are obtained and
have the same level of accuracy as the original data released.
In accordance with the OTCA 1988 legislative history, the
Department continues to apply its long-standing practice of
disregarding surrogate values if it has a reason to believe or suspect
the source data may be subsidized.\11\ In this regard, the Department
has previously found that it is appropriate to disregard such prices
from India, Indonesia, South Korea and Thailand because we have
determined that these countries maintain broadly available, non-
industry specific export subsidies.\12\ Based on the existence of these
subsidy programs that were generally available to all exporters and
producers in these countries at the time of the POR, the Department
finds that it is reasonable to infer that all exporters from India,
Indonesia, South Korea and Thailand may have benefitted from these
subsidies. Additionally, we excluded from our calculations imports that
were labeled as originating from an unspecified country because we
could not determine whether they were from an NME country. Where we
could only obtain surrogate values that were not contemporaneous with
the POR, we inflated (or deflated) the surrogate values using the
Indian Wholesale Price
[[Page 41147]]
Index (``WPI'') as published in the International Financial Statistics
of the International Monetary Fund.
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\11\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) (``OTCA 1988'') at 590.
\12\ See e.g., Expedited Sunset Review of the Countervailing
Duty Order on Carbazole Violet Pigment 23 from India, 75 FR 13257
(March 19, 2010) and accompanying Issues and Decision Memorandum at
pages 4-5; Expedited Sunset Review of the Countervailing Duty Order
on Certain Cut-to-Length Carbon Quality Steel Plate from Indonesia,
70 FR 45692 (August 8, 2005) and accompanying Issues and Decision
Memorandum at page 4; See Corrosion-Resistant Carbon Steel Flat
Products from the Republic of Korea: Final Results of Countervailing
Duty Administrative Review, 74 FR 2512 (January 15, 2009) and
accompanying Issues and Decision Memorandum at pages 17, 19-20; See
Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final
Results of Countervailing Duty Determination, 66 FR 50410 (October
3, 2001) and accompanying Issues and Decision Memorandum at page 23.
---------------------------------------------------------------------------
We used the following surrogate values in our preliminary results
of review (see Surrogate Value Memorandum for details). We valued
charcoal, petroleum coke, wood, carbon electrodes, aluminum scrap, and
polyethylene/polypropylene bags using June 2008 through May 2009
weighted-average Indian import values derived from the ``GTA.'' See
https://www.gtis.com/gta.htm. The Indian import statistics that we
obtained from the GTA were published by the Directorate General of
Commercial Intelligence and Statistics of the Ministry of Commerce and
Industry, Government of India, and are contemporaneous with the POR.
See Surrogate Value Memorandum at 1.
We valued quartz using the price of Grade I quartz with a silicon
dioxide content of 98 percent or higher from the Indian Bureau of
Mines' publication: 2007 edition of the Indian Minerals Yearbook (``IBM
Yearbook''). We inflated the value for quartz using the POR average WPI
rate. Id at 3.
We valued coal using Grade A coal prices obtained from the IBM
Yearbook. We inflated the value for coal using the POR average WPI
rate. Id.
We valued electricity using rates for large industries at 33KV, as
published by the Central Electricity Authority of the Government of
India in ``Electricity Tariff & Duty and Average Rates of Electricity
Supply in India'', dated March 2008. These electricity rates represent
actual country-wide, publicly available information on tax-exclusive
electricity rates charged to industries in India. As the rates listed
in this source became effective on a variety of different dates, we are
not adjusting the average value for inflation. For additional details,
see id.
We valued truck freight using a per-unit average rate calculated
from POR data on the following web site: https://www.infobanc.com/logistics/logtruck.htm. The logistics section of this website contains
inland freight truck rates between many large Indian cities. Id. at 8.
We valued rail freight using a per-unit average rate from https://www.indianrailways.gov.in, the Indian Ministry of Railways website. Id.
We inflated the value for rail freight using the POR average WPI rate.
Id.
Shanghai Jinneng claimed silica fume as a by-product offset since
it produced silica fume and sold a portion of this production during
the POR. We valued silica fume using GTA data for entries under HTS
2811.22 (silicon dioxide) from countries identified as silicon metal or
ferrosilicon producers by the USGS for ferroalloys published by the
U.S. Department of the Interior, dated September 2009. For a more
detailed discussion, see id. at 4.
For direct labor, indirect labor, and packing labor, pursuant to a
recent decision by the Court of Appeals for the Federal Circuit, we
have calculated an hourly wage rate to value the reported labor input
by averaging earnings and/or wages in countries that are economically
comparable to the PRC and that are significant producers of comparable
merchandise. For a more detailed discussion, see id.
Lastly, we valued selling, general and administrative expenses,
factory overhead costs, and profit using the contemporaneous 2008-2009
financial statements of FACOR Alloys Ltd., VBC Ferro Alloys Ltd., Sova
Ispat Alloys (Mega Projects) Ltd., and Saturn Ferro Alloys Private
Ltd., Indian producers of merchandise that is comparable to subject
merchandise. Id. at 9. We did not use the 2008-2009 financial statement
of Centom Steels and Ferro Alloys Ltd. placed on the record by Shanghai
Jinneng, because it contained evidence of subsidies.
In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may
submit publicly available information with which to value FOPs in the
final results of review within 20 days after the date of publication of
the preliminary results of review.
Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, based on the exchange rates in effect on
the dates of the U.S. sales as certified by the Federal Reserve Bank.
Preliminary Results of Review
We preliminarily determine that no dumping margin exists for
Shanghai Jinneng for the period June 1, 2008 through July 31, 2009.
Disclosure
The Department will disclose calculations performed for these
preliminary results to the parties within 10 days of the date of the
public announcement of the results of this review in accordance with 19
CFR 351.224(b).
Comments
Interested parties may submit written comments no later than 30
days after the date of publication of these preliminary results of
review. See 19 CFR 351.309(c)(1)(ii). Rebuttal comments must be limited
to the issues raised in the written comments and may be filed no later
than five days after the time limit for filing the case briefs. See 19
CFR 351.309(d). Parties submitting written comments or rebuttal
comments are requested to provide the Department with an additional
copy of those comments on diskette. Any interested party may request a
hearing within 30 days of publication of these preliminary results. See
19 CFR 351.310(c). Any hearing, if requested, ordinarily will be held
two days after the scheduled date for submission of rebuttal briefs.
See 19 CFR 351.310(d). Parties should confirm by telephone the date,
time, and location of the hearing two days before the scheduled date.
The Department will issue the final results of the administrative
review, which will include the results of its analysis of issues raised
in the briefs, within 120 days of publication of these preliminary
results, in accordance with section 751(a)(3)(A) of the Act, unless the
time limit is extended.
Assessment Rates
Pursuant to 19 CFR 351.212, the Department will determine, and CBP
shall assess, antidumping duties on all appropriate entries of subject
merchandise in accordance with the final results of this review. For
assessment purposes, the Department calculated exporter/importer- (or
customer) -specific assessment rates for merchandise subject to this
review. Where appropriate, the Department calculated an ad valorem rate
for each importer (or customer) by dividing the total dumping margins
for reviewed sales to that party by the total entered values associated
with those transactions. For duty-assessment rates calculated on this
basis, the Department will direct CBP to assess the resulting ad
valorem rate against the entered customs values for the subject
merchandise. Where appropriate, the Department calculated a per-unit
rate for each importer (or customer) by dividing the total dumping
margins for reviewed sales to that party by the total sales quantity
associated with those transactions. For duty-assessment rates
calculated on this basis, the Department will direct CBP to assess the
resulting per-unit rate against the entered quantity of the subject
merchandise. Where an importer- (or customer) -specific assessment rate
is de minimis (i.e., less than 0.50 percent), the Department will
instruct CBP to assess that importer (or customer's) entries of subject
merchandise without regard to antidumping duties. The Department
intends to instruct CBP to liquidate
[[Page 41148]]
entries containing subject merchandise exported by the PRC-wide entity
at the PRC-wide rate in the final results of this review. The
Department intends to issue appropriate assessment instructions
directly to CBP 15 days after publication of the final results of this
review.
Cash Deposit Requirements
The following cash deposit requirements will be effective for
shipments of subject merchandise from the PRC entered, or withdrawn
from warehouse, for consumption on or after the publication date of the
final results of the review, as provided by sections 751(a)(1) and
(a)(2)(C) of the Act: (1) for all respondents receiving a separate
rate, the cash deposit rate will be that established in the final
results of the review; (2) for previously investigated or reviewed PRC
and non-PRC exporters not listed above that have separate rates, the
cash deposit rate will continue to be the exporter-specific rate
published for the most recent period; (3) for all PRC exporters of
subject merchandise that have not been found to be entitled to a
separate rate, the cash deposit rate will be the PRC-wide rate of
139.49 percent; and (4) for all non-PRC exporters of subject
merchandise which have not received their own rate, the cash deposit
rate will be the rate applicable to the PRC exporters that supplied
that non-PRC exporter. These deposit requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice also serves as a preliminary reminder to importers of
their responsibility under 19 CFR 351.402(f) to file a certificate
regarding the reimbursement of antidumping duties prior to liquidation
of the relevant entries during this review period. Failure to comply
with this requirement could result in the Secretary's presumption that
reimbursement of antidumping duties occurred and the subsequent
assessment of double antidumping duties.
The Department is issuing and publishing these preliminary results
of administrative review in accordance with section 777(i)(1) of the
Act, and 19 CFR 351.221(b)(4).
Dated: July 7, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-17299 Filed 7-14-10; 8:45 am]
BILLING CODE 3510-DS-S
