Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 64259-64268 [2010-26193]
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Notices
Dated: October 14, 2010.
Yvette Springer,
Committee Liaison Officer.
[FR Doc. 2010–26295 Filed 10–18–10; 8:45 am]
BILLING CODE 3510–JT–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–912]
Certain New Pneumatic Off-the-Road
Tires From the People’s Republic of
China: Preliminary Results of
Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) is conducting an
administrative review of the
antidumping duty order on certain new
pneumatic off-the-road tires (‘‘OTR
tires’’) from the People’s Republic of
China (‘‘PRC’’) covering the period
February 20, 2008, through August 31,
2009. The administrative review (‘‘AR’’)
covers six exporters. We have
preliminarily determined that certain
exporters who participated fully and are
entitled to a separate rate sold subject
merchandise to the United States at
prices below normal value (‘‘NV’’)
during the period of review (‘‘POR’’). If
these preliminary results are adopted in
our final results of review, we will
instruct U.S. Customs and Border
Protection (‘‘CBP’’) to assess
antidumping duties on entries of subject
merchandise during the POR for which
the importer-specific assessment rates
are above de minimis.
We invite interested parties to
comment on these preliminary results.
We intend to issue the final results no
later than 120 days from the date of
publication of this notice, pursuant to
section 751(a)(3)(A) of the Tariff Act of
1930, as amended (‘‘the Act’’).
DATES: Effective Date: October 19, 2010.
FOR FURTHER INFORMATION CONTACT:
Raquel Silva or Lilit Astvatsatrian, 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) 482–6475 or (202) 482–
6412, respectively.
SUPPLEMENTARY INFORMATION:
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AGENCY:
Background
On September 4, 2008, the
Department published the antidumping
duty order on OTR Tires from the PRC.
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See Certain New Pneumatic Off-theRoad Tires From the People’s Republic
of China: Notice of Amended Final
Affirmative Determination of Sales at
Less Than Fair Value and Antidumping
Duty Order, 73 FR 51624 (September 4,
2008). On September 1, 2009, the
Department published a notice of
opportunity to request an administrative
review of this order for the February 20,
2008, through, August 31, 2009, POR
(hereinafter referred to as the 2008–2009
review). See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
to Request Administrative Review, 74
FR 45179 (September 1, 2009). In
accordance with 19 CFR 351.213(b),
interested parties made requests for
review between September 23, 2009,
and September 30, 2009, on fifteen
exporters. On October 26, 2009, the
Department initiated the 2008–2009
review.1 GPX International Tire
Corporation (‘‘GPX’’) requested that the
Department conduct a review of exports
of eight of the fifteen exporters. On
November 20, 2009, GPX withdrew its
review request for seven of the eight
exporters for which it requested review,
but maintained its request that the
Department conduct a review of Hebei
Starbright Tire Co., Ltd. (‘‘Starbright’’).
On January 22, 2010, the Department
selected Starbright and TUTRIC as
mandatory respondents. Between
November 24, 2009, and February 24,
2010, three more parties withdrew their
respective review requests related to
these same exporters, including
TUTRIC. On May 21, 2010, the
Department rescinded the
administrative reviews of OTR tires
with respect to TUTRIC and seven
additional exporters because all parties
requesting reviews of these entities had
withdrawn their respective requests.2
1 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews and
Request for Revocation in Part, 74 FR 54956, 54958
(October 26, 2009) (‘‘Initiation Notice’’). The
Department initiated reviews of (1) Aeolus Tyre Co.,
Ltd. (‘‘Aeolus’’), (2) Guizhou Tire Co., Ltd. (‘‘GTC’’),
(3) Hanghzou Zhongce Rubber Co., Ltd. (‘‘Hangzhou
Zhongce’’), (4) Starbright, (5) Innova Rubber Co.,
Ltd. (‘‘Innova’’), (6) Jiangsu Feichi Co., Ltd.
(‘‘Feichi’’), (7) KS Holding Limited/KS Resources
Limited (‘‘KS Ltd.’’), (8) Laizhou Xiongying Rubber
Industry Co., Ltd. (Laizhou Xiongying’’), (9)
Qingdao Free Trade Zone Full-World International
Trading Co. (‘‘Full World’’), Ltd., (10) Qingdao Taifa
Group Co., Ltd. (Qingdao Taifa’’), (11) Shandong
Huitong Tyre Co., Ltd. (‘‘Huitong’’), (12) Tianjin
Wanda Tyre Group (Wanda’’), (13) Tianjin United
Tire & Rubber International Co., Ltd. (‘‘TUTRIC’’),
(14) Triangle Tyre Co., Ltd. (‘‘Triangle’’), and (15)
Weihai Zhongwei Rubber Co., Ltd. (‘‘Weihai
Zhongwei’’).
2 See New Pneumatic Off-the-Road Tires From the
People’s Republic of China: Notice of Partial
Rescission of Antidumping Duty Administrative
Review, 75 FR 28567 (May 21, 2010). In addition
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64259
On January 28, 2010, Hanify & King,
bankruptcy counsel to GPX, informed
the Department of GPX’s filing of a
Chapter 11 petition under the United
States Bankruptcy Code on October 26,
2009, which counsel claimed
automatically stayed the Department’s
administrative proceedings with respect
to GPX. On February 3, 2010, both
domestic interested parties 3 submitted
letters to the Department expressing
concerns about the effect of GPX’s
bankruptcy petition on the ongoing
administrative review. In response to
parties’ concerns, the Department
extended regulatory deadlines for Titan
and Bridgestone until resolution of
those concerns. On February 12, 2010,
as a result of Government closures
during snowstorms, Import
Administration tolled all deadlines by
one calendar week. See Memorandum
from DAS for Import Administration,
‘‘Tolling of Administrative Deadlines As
A Result of the Government Closure
During the Recent Snowstorm,’’ dated
February 12, 2010, available at https://
ia.ita.doc.gov/ia-highlights-andnews.html. On May 5, 2010, upon
resolution of issues related to GPX’s
bankruptcy petition, the Department
extended the deadlines for (1)
Verification requests, (2) factual
information submissions, (3) comments
on surrogate country selection, and (4)
submission of publicly available
information for valuing factors of
production.
On May 5, 2010, the Department
selected Qingdao Free Trade Zone Full
World International Trading Co., Ltd.
(‘‘Full-World’’) as the mandatory
respondent to replace TUTRIC. On May
26, 2010, Full-World withdrew its
request for an administrative review of
its exports. On August 4, 2010, the
Department published in the Federal
Register a notice rescinding the
administrative review of OTR tires with
respect to Full-World.4
On June 7, 2010, the Department
published in the Federal Register a
notice fully extending the time limit for
the preliminary results of this review to
October 7, 2010. See New Pneumatic
Off-the-Road Tires from the People’s
Republic of China: Extension of
Preliminary Results of Antidumping
to TUTRIC, the Department rescinded the reviews
of Aeolus, Feichi, GTC, Huitong, Innova, Triangle
and Wanda.
3 Titan Tire Corporation (‘‘Titan’’), and
Bridgestone Americas, Inc., and Bridgestone
Americas Tire Operations, LLC (collectively
‘‘Bridgestone’’), both domestic producers of the like
product.
4 See New Pneumatic Off-the-Road Tires from the
People’s Republic of China: Notice of Partial
Rescission of Antidumping Duty Administrative
Review, 75 FR 46917 (August 4, 2010).
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Duty Administrative Review, 75 FR
32158 (June 7, 2010). On July 23, 2010,
and July 29, 2010, parties submitted
comments on surrogate country
selection. On July 29, 2010, parties
submitted comments on surrogate
values. On August 10, 2010, parties
submitted rebuttal comments on
surrogate values. Between January 22,
2010, and September 1, 2010, the
Department issued to Starbright the
original antidumping questionnaire, and
six supplemental questionnaires.
Between February 24, 2010, and
September 10, 2010, Starbright
submitted timely responses to the
Department’s seven questionnaires.
Period of Review
The POR is February 20, 2008,
through August 31, 2009.
mstockstill on DSKH9S0YB1PROD with NOTICES
Scope of Order
The products covered by the order are
new pneumatic tires designed for offthe-road and off-highway use, subject to
exceptions identified below. Certain
OTR tires are generally designed,
manufactured and offered for sale for
use on off-road or off-highway surfaces,
including but not limited to, agricultural
fields, forests, construction sites, factory
and warehouse interiors, airport
tarmacs, ports and harbors, mines,
quarries, gravel yards, and steel mills.
The vehicles and equipment for which
certain OTR tires are designed for use
include, but are not limited to: (1)
Agricultural and forestry vehicles and
equipment, including agricultural
tractors,5 combine harvesters,6
agricultural high clearance sprayers,7
industrial tractors,8 log-skidders,9
agricultural implements, highwaytowed implements, agricultural logging,
and agricultural, industrial, skid-steers/
mini-loaders; 10 (2) construction
vehicles and equipment, including
earthmover articulated dump products,
5 Agricultural tractors are dual-axle vehicles that
typically are designed to pull farming equipment in
the field and that may have front tires of a different
size than the rear tires.
6 Combine harvesters are used to harvest crops
such as corn or wheat.
7 Agricultural sprayers are used to irrigate
agricultural fields.
8 Industrial tractors are dual-axle vehicles that
typically are designed to pull industrial equipment
and that may have front tires of a different size than
the rear tires.
9 A log-skidder has a grappling lift arm that is
used to grasp, lift and move trees that have been
cut down to a truck or trailer for transport to a mill
or other destination.
10 Skid-steer loaders are four-wheel drive vehicles
with the left-side drive wheels independent of the
right-side drive wheels and lift arms that lie
alongside the driver with the major pivot points
behind the driver’s shoulders. Skid-steer loaders are
used in agricultural, construction and industrial
settings.
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rigid frame haul trucks,11 front end
loaders,12 dozers,13 lift trucks, straddle
carriers,14 graders,15 mobile cranes,16
compactors; and (3) industrial vehicles
and equipment, including smooth floor,
industrial, mining, counterbalanced lift
trucks, industrial and mining vehicles
other than smooth floor, skid-steers/
mini-loaders, and smooth floor off-theroad counterbalanced lift trucks.17 The
foregoing list of vehicles and equipment
generally have in common that they are
used for hauling, towing, lifting, and/or
loading a wide variety of equipment and
materials in agricultural, construction
and industrial settings. Such vehicles
and equipment, and the descriptions
contained in the footnotes are
illustrative of the types of vehicles and
equipment that use certain OTR tires,
but are not necessarily all-inclusive.
While the physical characteristics of
certain OTR tires will vary depending
on the specific applications and
conditions for which the tires are
designed (e.g., tread pattern and depth),
all of the tires within the scope have in
common that they are designed for offroad and off-highway use. Except as
discussed below, OTR tires included in
the scope of the order range in size (rim
diameter) generally but not exclusively
from 8 inches to 54 inches. The tires
may be either tube-type 18 or tubeless,
radial or non-radial, and intended for
sale either to original equipment
manufacturers or the replacement
market. The subject merchandise is
currently classifiable under Harmonized
Tariff Schedule of the United States
(‘‘HTSUS’’) subheadings: 4011.20.10.25,
4011.20.10.35, 4011.20.50.30,
4011.20.50.50, 4011.61.00.00,
4011.62.00.00, 4011.63.00.00,
4011.69.00.00, 4011.92.00.00,
4011.93.40.00, 4011.93.80.00,
4011.94.40.00, and 4011.94.80.00. While
HTSUS subheadings are provided for
convenience and customs purposes, our
written description of the scope is
dispositive.
Specifically excluded from the scope
are new pneumatic tires designed,
manufactured and offered for sale
primarily for on-highway or on-road
use, including passenger cars, race cars,
station wagons, sport utility vehicles,
minivans, mobile homes, motorcycles,
bicycles, on-road or on-highway trailers,
light trucks, and trucks and buses. Such
tires generally have in common that the
symbol ‘‘DOT’’ must appear on the
sidewall, certifying that the tire
conforms to applicable motor vehicle
safety standards. Such excluded tires
may also have the following
designations that are used by the Tire
and Rim Association:
11 Haul trucks, which may be either rigid frame
or articulated (i.e., able to bend in the middle) are
typically used in mines, quarries and construction
sites to haul soil, aggregate, mined ore, or debris.
12 Front loaders have lift arms in front of the
vehicle. They can scrape material from one location
to another, carry material in their buckets, or load
material into a truck or trailer.
13 A dozer is a large four-wheeled vehicle with a
dozer blade that is used to push large quantities of
soil, sand, rubble, etc., typically around
construction sites. They can also be used to perform
‘‘rough grading’’ in road construction.
14 A straddle carrier is a rigid frame, enginepowered machine that is used to load and offload
containers from container vessels and load them
onto (or off of) tractor trailers.
15 A grader is a vehicle with a large blade used
to create a flat surface. Graders are typically used
to perform ‘‘finish grading.’’ Graders are commonly
used in maintenance of unpaved roads and road
construction to prepare the base course on to which
asphalt or other paving material will be laid.
16 I.e., ‘‘on-site’’ mobile cranes designed for offhighway use.
17 A counterbalanced lift truck is a rigid framed,
engine-powered machine with lift arms that has
additional weight incorporated into the back of the
machine to offset or counterbalance the weight of
loads that it lifts so as to prevent the vehicle from
overturning. An example of a counterbalanced lift
truck is a counterbalanced fork lift truck.
Counterbalanced lift trucks may be designed for use
on smooth floor surfaces, such as a factory or
warehouse, or other surfaces, such as construction
sites, mines, etc.
18 While tube-type tires are subject to the scope
of this proceeding, tubes and flaps are not subject
merchandise and therefore are not covered by the
scope of this proceeding, regardless of the manner
in which they are sold (e.g., sold with or separately
from subject merchandise).
Prefix Letter Designations
• P—Identifies a tire intended
primarily for service on passenger cars;
• LT—Identifies a tire intended
primarily for service on light trucks;
and,
• ST—Identifies a special tire for
trailers in highway service.
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Suffix Letter Designations
• TR—Identifies a tire for service on
trucks, buses, and other vehicles with
rims having specified rim diameter of
nominal plus 0.156″ or plus 0.250″
• MH—Identifies tires for Mobile
Homes;
• HC—Identifies a heavy duty tire
designated for use on ‘‘HC’’ 15’’ tapered
rims used on trucks, buses, and other
vehicles. This suffix is intended to
differentiate among tires for light trucks,
and other vehicles or other services,
which use a similar designation.
• Example: 8R17.5 LT, 8R17.5 HC;
• LT—Identifies light truck tires for
service on trucks, buses, trailers, and
multipurpose passenger vehicles used
in nominal highway service; and
• MC—Identifies tires and rims for
motorcycles.
The following types of tires are also
excluded from the scope: Pneumatic
tires that are not new, including
recycled or retreaded tires and used
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tires; non-pneumatic tires, including
solid rubber tires; tires of a kind
designed for use on aircraft, all-terrain
vehicles, and vehicles for turf, lawn and
garden, golf and trailer applications.
Also excluded from the scope are radial
and bias tires of a kind designed for use
in mining and construction vehicles and
equipment that have a rim diameter
equal to or exceeding 39 inches. Such
tires may be distinguished from other
tires of similar size by the number of
plies that the construction and mining
tires contain (minimum of 16) and the
weight of such tires (minimum 1500
pounds).
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Non-Market Economy Country Status
No party contested the Department’s
treatment of the PRC as a non-market
economy (‘‘NME’’) country, and the
Department has treated the PRC as an
NME country in all past antidumping
duty investigations and administrative
reviews.19 No interested party in this
case has argued that we should do
otherwise. Designation as an NME
country remains in effect until it is
revoked by the Department. See section
771(18)(C)(i) of the Act. As such, we
continue to treat the PRC as an NME in
this proceeding.
Surrogate Country
Section 773(c)(1) of the Act directs the
Department to base NV on the NME
producer’s factors of production
(‘‘FOPs’’), valued in a surrogate market
economy (‘‘ME’’) 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 use, to the
extent possible, the prices or costs of the
FOPs in one or more ME countries that
are: (1) At a level of economic
development comparable to that of the
NME country; and (2) significant
producers of comparable merchandise.
The sources of the surrogate factor
values are discussed under the ‘‘Normal
Value’’ section below. See Memorandum
to The File, ‘‘Preliminary Results of the
2008–2009 Administrative Review of
New Pneumatic Off-the-Road Tires from
the People’s Republic of China:
Surrogate Value Memorandum,’’ dated
concurrently with this notice
(‘‘Surrogate Value Memorandum’’).
The Department determined that
India, Indonesia, Ukraine, Peru, the
19 See, e.g., Chlorinated Isocyanurates from the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Review, 73 FR
52645 (September 10, 2008); see also Folding Metal
Tables and Chairs from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review, 74 FR 3560 (January 21,
2009).
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Philippines and Thailand are countries
comparable to the PRC in terms of
economic development.20 Once we have
identified the countries that are
economically comparable to the PRC,
we select 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.
The Department has determined that
India is the appropriate surrogate
country for use in this review. The
Department based its decision on the
following facts: (1) India is at a level of
economic development comparable to
that of the PRC; (2) India is a significant
producer of comparable merchandise;
and (3) India provides the best
opportunity to use quality, publicly
available data to value the FOPs. Titan
and Bridgestone provided comments on
July 23, 2010, and July 29, 2010,
respectively, arguing that India is the
appropriate surrogate country for use in
this review. Additionally, the data
submitted by Titan, Bridgestone and
Starbright for our consideration as
potential surrogate values are sourced
from India.
Therefore, because India best
represents the experience of producers
of comparable merchandise operating in
an ME, we have selected India as the
surrogate country and, accordingly,
have calculated NV using Indian prices
to value the respondent’s FOPs, when
available and appropriate. See Surrogate
Value Memorandum. We have obtained
and relied upon publicly available
information wherever possible.
Separate Rates
In the Initiation Notice, the
Department applied a process by which
exporters and producers not being
individually reviewed may obtain
separate-rate status in NME reviews.
The process requires exporters and
producers to submit a separate-rate
status application (‘‘SRA’’) or separaterate status certification (‘‘SRC’’).21
However, the standard for eligibility for
a separate rate (which is whether a firm
can demonstrate an absence of both de
jure and de facto government control
20 See Memoranda to Wendy J. Frankel, Office
Director, AD/CVD Operations, Office 8, ‘‘Request for
a List of Surrogate Countries for an Administrative
Review of the Antidumping Duty Order Covering
New Pneumatic Off-the-Road Tires from the
People’s Republic of China,’’ dated January 25,
2010.
21 See Policy Bulletin 05.1: Separate-Rates
Practice and Application of Combination Rates in
Antidumping Investigations involving Non-Market
Economy Countries (April 5, 2005), available at
https://ia.ita.doc.gov/policy/bull05-1.pdf.
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64261
over its export activities) has not
changed. From November 30 to
December 2, 2009, six exporters of the
subject merchandise filed timely
responses to the Department’s SRAs or
SRCs, as applicable.22
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.23 It is the Department’s policy
to assign all exporters of merchandise
subject to review in an NME country
this single rate unless an exporter can
demonstrate that it is sufficiently
independent so as to be entitled to a
separate rate.24 Exporters can
demonstrate this independence through
the absence of both de jure and de facto
government control over export
activities. The Department analyzes
each entity exporting the subject
merchandise under a test arising from
the Notice of Final Determination of
Sales at Less Than Fair Value: Sparklers
from the People’s Republic of China, 56
FR 20588, at Comment 1 (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, 22587 (May 2, 1994) (‘‘Silicon
Carbide’’). However, if the Department
determines that a company is wholly
foreign-owned or located in an ME, then
an SRA analysis is not necessary to
determine whether it is independent
from government control.25
A. Separate-Rate Recipients 26
1. Wholly Foreign-Owned
Starbright reported that during the
POR it was wholly owned by GPX, a
U.S. company, and KS Ltd. reported in
its SRA that it is wholly-owned by a
company located in Hong Kong.
Therefore, consistent with the
22 Hangzou Zhongce; Starbright; KS Ltd.; Laizhou
Xiongying; Qingdao Taifa; and Weihai Zhongwei.
23 See, e.g., Certain Coated Paper Suitable for
High-Quality Print Graphics Using Sheet-Fed
Presses From the People’s Republic of China: Notice
of Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final
Determination, 75 FR 24892, 24899 (May 6, 2010)
(unchanged in Certain Coated Paper Suitable for
High-Quality Print Graphics Using Sheet-Fed
Presses From the People’s Republic of China: Final
Determination of Sales at Less Than Fair Value, 75
FR 59217 (September 27, 2010)).
24 Id.
25 See, e.g., Final Results of Antidumping Duty
Administrative Review: Petroleum Wax Candles
From the People’s Republic of China, 72 FR 52355,
52356 (September 13, 2007).
26 All separate-rate applicants receiving a separate
rate are hereby referred to collectively as the ‘‘SR
Recipients;’’ this includes the mandatory
respondent.
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Department’s practice, a further SRA
analysis is not necessary to determine
whether Starbright’s and KS Ltd.’s
export activities are independent from
government control, and we have
preliminarily granted a separate rate to
Starbright and KS Ltd.27
2. Wholly Chinese-Owned Companies
Hangzhou Zhongce, Laizhou
Xiongying, Qingdao Taifa, and Weihai
Zhongwei stated that they are wholly
Chinese-owned companies (collectively
‘‘PRC SR Applicants’’). Therefore, the
Department must analyze whether these
respondents can demonstrate the
absence of both de jure and de facto
governmental control over export
activities.
a. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) An absence
of restrictive stipulations associated
with an individual exporter’s business
and export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) other formal
measures by the government
decentralizing control of companies.28
The evidence provided by the PRC SR
Recipients 29 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) there are applicable
legislative enactments decentralizing
control of the companies; and (3) there
are formal measures by the government
decentralizing control of companies.
mstockstill on DSKH9S0YB1PROD with NOTICES
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
27 See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value: Creatine Monohydrate
from the People’s Republic of China, 64 FR 71104,
71104–05 (December 20, 1999) (where the
respondent was wholly foreign-owned and, thus,
qualified for a separate rate).
28 See Sparklers, 56 FR at 20589.
29 Collective reference for all respondents
receiving a separate rate in this administrative
review.
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proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses.30 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 placed on the record of this
review by the PRC SR Recipients
demonstrates an absence of de jure and
de facto government control with
respect to each of the exporters’ exports
of the merchandise under consideration,
in accordance with the criteria
identified in Sparklers and Silicon
Carbide.
Rate for Non-Selected Companies
The statute and the Department’s
regulations do not address the
establishment of a rate to be applied to
individual companies not selected for
examination where the Department
limited its examination in an
administrative review pursuant to
section 777A(c)(2) of the Act. Generally,
we have looked to section 735(c)(5) of
the Act, which provides instructions for
calculating the all-others rate in an
investigation, for guidance when
calculating the rate for respondents we
did not examine in an administrative
review. For the exporters subject to a
review that were determined to be
eligible for separate rate status, but were
not selected as mandatory respondents,
the Department generally weightaverages the rates calculated for the
mandatory respondents, excluding any
rates that are zero, de minimis, or based
entirely on FA.31 For this administrative
review, the Department has calculated a
positive margin for the single mandatory
respondent, Starbright. Accordingly, for
these preliminary results, consistent
with our practice, the Department has
preliminarily established a margin for
the SR Recipients based on the rate
calculated for the single mandatory
respondent, Starbright.
30 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).
31 See, e.g., Wooden Bedroom Furniture from the
People’s Republic of China: Preliminary Results of
Antidumping Duty Administrative Review,
Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR
8273, 8279 (February 13, 2008) (unchanged in
Wooden Bedroom Furniture from the People’s
Republic of China: Final Results of Antidumping
Duty Administrative Review and New Shipper
Review, 73 FR 49162 (August 20, 2008)).
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Date of Sale
Section 401(i) of the Department’s
regulations states that:
In identifying the date of sale of the subject
merchandise or foreign like product, the
Secretary normally will use the date of
invoice, as recorded in the exporter or
producer’s records kept in the ordinary
course of business. However, the Secretary
may use a date other than the date of invoice
if the Secretary is satisfied that a different
date better reflects the date on which the
exporter or producer establishes the material
terms of sale.
See also Allied Tube and Conduit Corp.
v. United States, 132 F. Supp. 2d 1087,
1090–1092 (CIT 2001) (upholding the
Department’s rebuttable presumption
that invoice date is the appropriate date
of sale). After examining the
questionnaire responses and the sales
documentation placed on the record by
Starbright, we preliminarily determine
that invoice date is the most appropriate
date of sale for Starbright. Nothing on
the record rebuts the presumption that
invoice date should be the date of sale.
Normal Value Comparisons
To determine whether Starbright’s
sales of OTR tires to the United States
were made at less than NV, we
compared constructed export price
(‘‘CEP’’) to NV, as described in the
‘‘Constructed Export Price,’’ and
‘‘Normal Value’’ sections of this notice,
pursuant to section 771(35) of the Act.
Constructed Export Price
In accordance with section 772(b) of
the Act, CEP is the price at which the
subject merchandise 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. In accordance with section
772(b) of the Act, we used CEP for
Starbright’s sales because the sales were
made by GPX, Starbright’s U.S. affiliate
in the United States.
We calculated CEP based on delivered
prices to unaffiliated purchasers in the
United States. In accordance with
section 772(d)(1) of the Act, we made
deductions from the starting price for
billing adjustments, movement
expenses, discounts and rebates, and
selling expenses in the U.S. market. We
made deductions from the U.S. sales
price for movement expenses in
accordance with section 772(c)(2)(A) of
the Act. These included, where
applicable, foreign inland freight and
insurance from the plant to the port of
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exportation, foreign inland insurance,
ocean freight, marine insurance, U.S.
Customs duty, U.S. brokerage and
handling, U.S. inland freight from port
to the warehouse, warehousing expense
and U.S. inland freight from the
warehouse to the customer. In
accordance with section 772(d)(1) of the
Act, the Department deducted, where
applicable, commissions, credit
expenses, warranty expenses, inventory
carrying costs and indirect selling
expenses from the U.S. price, all of
which relate to commercial activity in
the United States. In calculating its
reported indirect selling expenses, the
company did not include a significant
number of items that it later claimed
should be excluded; however, it did not
provide any substantiation for this
claim. Accordingly, for purposes of
these preliminary results of review, we
have included these items in the
indirect selling expense adjustment to
U.S. price.32 Further, we did not grant
an offset to interest expenses for shortterm interest income because Starbright
did not demonstrate that any of GPX’s
interest income was generated from
short-term assets. However, we will
issue a post-preliminary supplemental
questionnaire to Starbright requesting
that it provide substantiating
documentation for its claim that all of
its originally excluded items should be
excluded from indirect selling expenses,
and provide Starbright an opportunity
to provide evidence that any of GPX’s
interest income was short term in
nature. In addition, we deducted CEP
profit in accordance with sections
772(d)(3) and 772(f) of the Act. In
accordance with section 772(d) of the
Act, we calculated Starbright’s credit
expenses and inventory carrying costs
based on the actual short-term interest
rate reported for loans obtained by GPX
during the POR.33
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Normal Value
Section 773(c)(1) of the Act provides
that, in the case of an NME, 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.
32 See Memorandum to the File, ‘‘Certain New
Pneumatic Off-The-Road Tires from the People’s
Republic of China: Analysis Memorandum for the
Preliminary Determination: Hebei Starbright Tire
Co., Ltd. (‘Starbright’),’’ dated October 7, 2010
(‘Starbright Preliminary Analysis Memorandum’’).
33 See Starbright Preliminary Analysis
Memorandum.
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The Department bases NV on FOPs
because the presence of government
controls on various aspects of NME
economies renders price comparisons
and the calculation of production costs
invalid under our normal
methodologies. Therefore, in these
preliminary results, we have calculated
NV based on FOPs in accordance with
sections 773(c)(3) and (4) of the Act and
19 CFR 351.408(c). The FOPs include:
(1) Hours of labor required; (2)
quantities of raw materials employed;
(3) amounts of energy and other utilities
consumed; and (4) representative capital
costs. In accordance with 19 CFR
351.408(c)(1), the Department normally
uses publicly available information to
value the FOPs. However, when a
producer sources a meaningful amount
of an input from an ME country and
pays for it in ME currency, the
Department may value the factor using
the actual price paid for the input.34
Further, the Department disregards
prices it has reason to suspect may be
subsidized.35
In accordance with the legislative
history of the Omnibus Trade and
Competitiveness Act of 1988, the
Department continues to apply its longstanding practice of disregarding
surrogate values if it has a reason to
believe or suspect the source data may
be subsidized.36 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.37 Based on the existence of
34 See 19 CFR 351.408(c)(1); see also Lasko Metal
Products v. United States, 43 F.3d 1442, 1445–1446
(Fed. Cir. 1994) (affirming the Department’s use of
market-based prices to value certain FOPs).
35 See, e.g., China National Machinery Import &
Export Corp. v. United States, 293 F. Supp. 2d 1334,
1339 (CIT 2003) (aff’d, 104 Fed. Appx. 183 (Fed.
Cir. 2004)) (‘‘China National Machinery’’), and see
Frontseating Service Valves from the People’s
Republic of China; Preliminary Determination of
Sales at Less Than Fair Value, Preliminary Negative
Determination of Critical Circumstances, and
Postponement of Final Determination, 73 FR 62952
(October 22, 2008) (unchanged in Frontseating
Service Valves from the People’s Republic of China:
Final Determination of Sales at Less Than Fair
Value and Final Negative Determination of Critical
Circumstances, 74 FR 10886 (March 13, 2009))
(‘‘Frontseating Service Valves’’).
36 Omnibus Trade and Competitiveness Act of
1988, Conf. Report to Accompany H.R. 3, H.R. Rep.
No. 576, 100th Cong., 2nd Sess. (1988) at 590.
37 See, e.g., Carbazole Violet Pigment 23 from
India: Final Results of the Expedited Five-year
(Sunset) Review of the Countervailing Duty Order,
75 FR 13257 (March 19, 2010), and accompanying
Issues and Decision Memorandum at pages 4–5;
Certain Cut-to-Length Carbon Quality Steel Plate
from Indonesia: Final Results of Expedited Sunset
Review, 70 FR 45692 (August 8, 2005), and
accompanying Issues and Decision Memorandum at
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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.
Factor Valuations
In accordance with section 773(c) of
the Act, we calculated NV based on the
FOPs reported by Starbright for the
POR. To calculate NV, we multiplied
the reported per-unit factor quantities
by publicly available Indian surrogate
values (except as noted below). In
selecting the surrogate values, we
considered the quality, specificity,
public availability, and
contemporaneity of the data. As
appropriate, we adjusted input prices by
including freight costs to render them
delivered prices. Specifically, we added
to Indian import surrogate values a
surrogate freight cost using the shorter
of the reported distance from the
domestic supplier to the factory or the
distance from the nearest seaport to the
factory where appropriate (i.e., where
the sales terms for the ME inputs were
not delivered to the factory). This
adjustment is in accordance with the
decision of the Federal Circuit in Sigma
Corp. v. United States, 117 F. 3d 1401,
1408 (Fed. Cir. 1997). For a detailed
description of all surrogate values used
for Starbright, see the Surrogate Value
Memorandum.
In past cases, it has been the
Department’s practice to value various
FOPs using import statistics of the
primary selected surrogate country from
World Trade Atlas (‘‘WTA’’), as
published by Global Trade Information
Services (‘‘GTIS’’).38 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
page 4; 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; Final Affirmative Countervailing Duty
Determination: Certain Hot-Rolled Carbon Steel Flat
Products from Thailand, 66 FR 50410 (October 3,
2001), and accompanying Issues and Decision
Memorandum at page 23.
38 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 (December
10, 2009)).
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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.39
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.
We further adjusted material input
values to account for freight costs
incurred between the supplier and
respondent. We used the freight rates
published by https://www.infobanc.com,
‘‘The Great Indian Bazaar, Gateway to
Overseas Markets.’’ The logistics section
of the website contains inland freight
truck rates between many large Indian
cities. The truck freight rates are for the
period August 2008 through July 2009.
See Surrogate Value Memorandum.
Starbright made raw materials
purchases from ME suppliers.
Therefore, in accordance with our
practice outlined in Antidumping
Methodologies: Market Economy
Inputs,40 where at least 33 percent of an
39 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.
40 See Antidumping Methodologies: Market
Economy Inputs, Expected Non-Market Economy
Wages, Duty Drawback; and Request for Comments,
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input is sourced from ME suppliers and
purchased in an ME currency, the
Department used actual weightedaverage purchase prices to value these
inputs.41 Where the quantity of the
input purchased from ME suppliers
during the period is below 33 percent of
the total volume of purchases of the
input during the period, the Department
weight-averaged the weighted average
ME purchase price with an appropriate
surrogate value.42 See Antidumping
Methodologies: Market Economy Inputs.
For a complete description of the factor
values we used, see the Surrogate Value
Memorandum and the Starbright
Preliminary Analysis Memorandum.
Where we could not obtain publicly
available information contemporaneous
with the POR with which to value FOPs,
we adjusted the surrogate values using,
where appropriate, the Indian
Wholesale Price Index (‘‘WPI’’) as
published in the International Financial
Statistics of the International Monetary
Fund (‘‘IMF’’).
To value electricity, we used 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 taxexclusive electricity rates charged to
industries in India. We did not inflate
this value because utility rates represent
current rates, as indicated by the
effective dates listed for each of the rates
provided. See Surrogate Value
Memorandum.
To value water, we used the revised
Maharashtra Industrial Development
Corporation (‘‘MIDC’’) water rates
available at https://www.midcindia.com/
water-supply. See Surrogate Value
Memorandum.
The Department valued brokerage and
handling using a price list of export
procedures necessary to export a
standardized cargo of goods in India.
The price list is compiled based on a
survey case study of the procedural
requirements for trading a standard
shipment of goods by ocean transport in
India that is published in Doing
71 FR 61716, 61717–19 (October 19, 2006)
(‘‘Antidumping Methodologies: Market Economy
Inputs’’).
41 For a detailed description of all actual values
used for market-economy inputs, see New-Tec
Preliminary Analysis Memorandum dated
concurrently with this notice.
42 We did not accept all of Starbright’s claimed
market economy purchases; however due to the
proprietary nature of this issue, please see further
discussion in the Starbright Preliminary Analysis
Memorandum.
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Business 2010: India, published by the
World Bank. See Surrogate Value
Memorandum.
To value steam coal, we used data
obtained for grades A and B coal
reported in the December 2007 Coal
India Limited Circular. See Surrogate
Value Memorandum.
To value warehousing, the
Department used values obtained from
the Board of Jawaharlal Nehru Port
Trust’s Web site,43 a source identified
and used in the less-than-fair-value
investigation of this proceeding. See
Certain New Pneumatic Off-the-Road
Tires From the People’s Republic of
China: Notice of Amended Final
Affirmative Determination of Sales at
Less Than Fair Value and Antidumping
Duty Order, 73 FR 51624 (Sept. 4, 2008),
and accompanying Issues and Decision
Memorandum at Comment 26. We
applied these values to the average
number of days that Starbright’s subject
merchandise is in inventory. See
Surrogate Value Memorandum.
As a consequence of the decision of
the Court of Appeals for the Federal
Circuit (‘‘Federal Circuit’’) in Dorbest
Ltd. v. United States, 604 F. 3d 1363
(Fed. Cir. 2010), the Department is no
longer relying on the regression-based
wage rate described in 19 CFR
351.408(c)(3). The Department is
continuing to evaluate options for
determining labor values in light of the
recent Federal Circuit decision. For
these preliminary results, we have
calculated an hourly wage rate to use in
valuing 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. To calculate the hourly
wage data, we used wage rate data
reported by the International Labor
Organization (‘‘ILO’’). Because an
industry-specific dataset relevant to this
proceeding exists within the
Department’s preferred ILO source, we
will be using industry-specific data to
calculate a surrogate wage rate for this
review, in accordance with section
773(c)(1) of the Act.
For this review, the Department has
calculated the wage rate using a simple
average of the data provided to the ILO
under Sub-Classification 25 of the ISIC–
Revision 44 3 standard by countries
43 https://www.jnport.gov.in/
CMSPage.aspx?PageID=27.
44 The ILO industry-specific data is reported
according to the International Standard Industrial
Classification of all Economic Activities (‘‘ISIC’’)
code, which is maintained by the United Nations
Statistical Division and is periodically updated.
These updates are referred to as ‘‘Revisions.’’ The
ILO, an organization under the auspices of the
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determined to be both economically
comparable and significant producers to
the PRC. Specifically, the Department
finds the two-digit description under
ISIC–Revision 3 (‘‘Manufacture of
Rubber and Plastics Products’’) to be the
best available wage rate surrogate value
on the record because it is specific and
derived from industries that produce
merchandise comparable to the subject
merchandise. For further information on
the calculation of the wage rate, see the
Surrogate Value Memorandum.
To value factory overhead, selling,
general, and administrative expenses,
and profit, we used audited financial
statements for the year ending March
31, 2009, of Falcon Tyres Ltd., and TVS
Srichakra Limited, and the financial
statement for the year ending December
31, 2008, of Goodyear India Limited,
Indian producers of comparable
merchandise.45 For these preliminary
results, the Department determined not
to use audited financial statements of
Govind Rubber Limited because the
overwhelming amount of production is
cycle tires and tubes, and auto tires and
tubes accounted for less than 1 percent
of production. Based upon that
information, we find that Govind
Rubber Limited does not produce
comparable merchandise. In addition,
the Department has declined to use
audited financial statements of three
other Indian producers, JK Industries
Ltd., MRF Tyres Ltd. and Balkrishna
Industries Limited, because there is
evidence that each of these companies
received subsidies under programs
previously found by the Department to
be countervailable.46 Nevertheless, the
United Nation, utilizes this classification for
reporting purposes. Currently, wage and earnings
data are available from the ILO under the following
revisions: ISIC–Rev.2, ISIC–Rev.3, and most
recently, ISIC–Rev.4. The ISIC code establishes a
two-digit breakout for each manufacturing category,
and also often provides a three- or four-digit subcategory for each two-digit category. Depending on
the country, data may be reported at either the
two-, three- or four-digit subcategory. SubClassification 25 of the ISIC–Revision 3 covers
‘‘Manufacture of Rubber and Plastics Products’’.
45 See Surrogate Value Memorandum.
46 Specifically, JK Industries received subsidies
under the Sales Tax Deferred from Government of
Karnataka program (see page 40 of its financial
statement), found by the Department to be
countervailable. See Notice of Preliminary Results
and Rescission, in Part, of Countervailing Duty
Administrative Review: Polyethylene Terephthalate
Film, Sheet, and Strip from India, 71 FR 45037
(August 8, 2006) (8/8/2006 PET Film). MRF Tyres
received subsidies under the Export Promotion
Capital Goods Scheme (see page 61 of its financial
statement), found by the Department to be
countervailable. See Final Affirmative
Countervailing Duty Determination: Bottle-Grade
Polyethylene Terephthalate (PET) Resin From India,
70 FR 13460 (March 21, 2005) (3/21/2005 PET
Resin). Balkrishna Industries received subsidies
under the Duty Entitlement Passbook Scheme (see
page 32 of its financial statement), found by the
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Department may consider other publicly
available financial statements for the
final results, as appropriate.
In its original questionnaire response,
Starbright stated that it does not
produce any by-products, with the
exception of a small amount of scrap
tires. In a July 14, 2010, supplemental
questionnaire, we requested that
Starbright explain, as requested in the
original questionnaire, the disposition
of its by-products, and that it
demonstrate the quantities of scrap
product produced during the POR. In
addition we asked Starbright to
demonstrate that there is a commercial
value to its claimed scrap through either
sale, or the reintroduction into its
production process. On August 17,
2010, Starbright provided a worksheet
purportedly showing scrap production
for July 2008; however it did not explain
the worksheet or tie to any supporting
documents. In this same response,
Starbright also stated that it does not
sell or reintroduce the scrap tires into
production, but, if possible repaired and
returned them to inventory. Because
Starbright clearly and repeatedly stated
that these scrap tires were neither sold
nor re-used in production, but simply
placed in inventory, it has not
demonstrated that these scrap tires have
any commercial value that would
warrant a by-product offset.
On September 1, 2010, the
Department requested for the third time
that Starbright provide documentation
to demonstrate the production, sale,
and/or reintroduction of its scrap tires
by-product, whereupon, on September
13, 2010, Starbright stated that due to
time and staffing constraints, it had not
been able to prepare the requested
information. Because Starbright
reported that it produced scrap tires but
did not report or demonstrate that it
sold or reintroduced the scrap tires into
production and thus did not
demonstrate either the production or
commercial value of any such scrap, we
have not granted Starbright its claimed
by-product offset for tire scrap.
Adverse Facts Available
Sections 776(a)(1) and (2) of the Act
provide that the Department shall apply
‘‘facts otherwise available’’ if, inter alia,
necessary information is not on the
record or 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)
Department to be countervailable. See, e.g., 8/8/
2006 PET Film and 3/21/2005 PET Resin.
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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.
Where the Department determines
that a response to a request for
information does not comply with the
request, section 782(d) of the Act
provides that the Department will so
inform the party submitting the
response and will, to the extent
practicable, provide that party the
opportunity to remedy or explain the
deficiency. If the party fails to remedy
the deficiency within the applicable
time limits and subject to section 782(e)
of the Act, the Department may
disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act provides that
the Department ‘‘shall not decline to
consider information that is submitted
by an interested party and is necessary
to the determination but does not meet
all applicable requirements established
by the administering authority’’ if the
information is timely, can be verified, is
not so incomplete that it cannot be used,
and if the interested party acted to the
best of its ability in providing the
information. Where all of these
conditions are met, the statute requires
the Department to use the information if
it can do so without undue difficulties.
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. Section 776(b)
of the Act also authorizes the
Department to use as adverse facts
available (‘‘AFA’’) information derived
from the petition, the final
determination, a previous
administrative review, or other
information placed on the record.
For the reasons discussed below, we
determine that, in accordance with
sections 776(a)(2) and 776(b) of the Act,
the use of partial AFA is appropriate for
the preliminary results with respect to
Starbright.
1. Products with Unreported Factors of
Production
The original questionnaire states: ‘‘if
you sold some products/models during
the POR but did not produce them
during the POR * * * please contact the
official in charge before preparing your
response to this section of the
questionnaire.’’ 47 However, in filing its
47 See Letter from the Department to Starbright,
‘‘Antidumping Duty Administrative Review of
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questionnaire response, Starbright
included several products in the
reported U.S. sales list in its response to
section C of the questionnaire for which
it failed to provide any factors of
production in its response to section
D.48 Furthermore, prior to submitting its
response, Starbright never contacted the
Department regarding this matter,
despite the instructions in the
questionnaire that it do so.
On July 1, 2010, the Department
issued a supplemental questionnaire in
which it asked Starbright to explain the
missing product control numbers, and
to provide FOPs for the product control
numbers included in the section C
database but missing from the section D
database. In its August 2, 2010, response
to the supplemental section C
questionnaire, Starbright explained that
these products were sold during the
POR, but not produced during the POR.
Starbright further stated that it would
provide the FOP information for these
products in its response to the section
D supplemental questionnaire.49
On August 17, 2010 Starbright
provided matching product control
numbers in its FOP database for the
products that it reported were sold
during the POR but not produced during
the POR. Starbright stated that it had
‘‘created similars’’ for the product
control numbers that did not have
matches in the FOP database, and that
it had created a new variable in the FOP
database for the ‘‘similar’’ product
control number. Starbright also
included a chart listing the control
numbers for the products sold to the
United States, and the similar control
number created by Starbright.50
However, based on Starbright’s
explanation that it sold these products
during the POR but did not produce
these products during the POR, it was
not clear whether Starbright produced
the products prior to the POR, or
purchased the products from another
producer and how it derived the FOPs
it reported for these products (e.g., did
they reflect prior year’s production,
production of other products, or
something else entirely). Thus, on
September 1, 2010, in a second section
D supplemental questionnaire, the
Department asked that Starbright
explain the origin of the merchandise
sold during the POR but not produced
Certain New Pneumatic Off-the-Road Tires from the
People’s Republic of China: Questionnaire,’’ dated
January 22, 2010, at page D–1 (‘‘Questionnaire’’).
48 See Starbright’s April 27, 2010, sections C and
D questionnaire response.
49 See Starbright’s August 2, 2010, supplemental
questionnaire response at 5.
50 See Starbright’s August 17, 2010, supplemental
questionnaire response at 1 and Exhibit SD–2.
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by Starbright during the POR, and that
Starbright provide evidence of its
attempts to obtain FOP information
from the producer or the merchandise if
the products were purchased from
another producer. The Department also
explained that, if Starbright produced
these products prior to the POR, it
should provide the FOPs based on the
prior production period (data it should
have from the period of the
investigation).
On September 13, 2010, Starbright
argued that any request for FOPs based
on the prior year’s production would
require a revision to its entire FOP
database and refused to comply with the
Department’s request for the FOP data
from the prior production period.
However, Starbright failed to explain
why having to report the prior year’s
FOPs for products not produced in the
current POR would require a revision to
the entire FOP database, since the prior
year’s reporting would only be
necessary for the products sold but not
produced during the instant POR.
Starbright further contended that it was
unable to provide the requested FOP
data in such a short period of time.51
Thus, Starbright disregarded the clear
instructions in the original
questionnaire, directing it to contact the
Department if it had made sales of
products during the POR that it did not
produce during the POR. Starbright also
refused to provide the information when
requested by the Department in a
supplemental questionnaire regarding
the nature of what it had reported, thus
rendering the data unusable. Moreover,
Starbright provided no rationale for its
creation of ‘‘similar’’ product control
numbers for these products.
Consequently, we preliminarily
determine that partial facts available is
warranted because necessary
information is not on the record and
because Starbright failed to provide
requested information by the applicable
deadlines and impeded the proceeding
by not explaining the derivation of its
reported ‘‘similar’’ FOPs. Section
776(a)(1), (a)(2)(B) and (a)(2)(C) of the
Act. Moreover, by failing to notify the
Department of the existence of sales for
products not produced in the POR,
despite the clear instruction in the
questionnaire, and by failing to provide
usable information by the applicable
deadlines, the conditions of section
782(c)(1) and (e), to which Section
776(a)(2)(B) is subject, have not been
satisfied. In addition, we determine that
Starbright has not cooperated to the best
of its ability by repeatedly failing to
51 See Starbright’s September 13, 2010,
supplemental questionnaire response at 19.
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Fmt 4703
Sfmt 4703
provide the requested FOP data from the
production period, despite numerous
opportunities to do so. Accordingly, an
adverse inference in using facts
available under section 776(b) of the Act
is warranted for Starbright with regard
to this specific information. For the
products sold but not produced by
Starbright during the POR as adverse
facts available, we have applied the
highest normal value for any control
number in Starbright’s FOP database.
See Starbright Preliminary Analysis
Memorandum.
2. Rebates
The original questionnaire instructs
respondents: ‘‘where available, provide
documentation, including sample
agreements, for each type of rebate.’’ 52
Starbright provided a chart in exhibit C–
4 of its April 27, 2010, section C
response, in which it summarized and
calculated the rebates granted in 2008;
however, Starbright provided no
documentation to support its reported
rebates, and no explanation as to why
such documentation was unavailable.
Furthermore, Starbright explained that
it was still compiling information
related to rebates granted in 2009.53
On July 1, 2010, the Department
issued a supplemental questionnaire, in
which it copied the question for the
original questionnaire and requested
that Starbright respond ‘‘in full.’’ 54 In its
August 2, 2010, supplemental
questionnaire response, Starbright
submitted a revised exhibit C–4, in
which it ‘‘expanded the summary to
detail all customer codes,’’ but again
provided no documentation, including
copies of rebate agreements, and no
explanation as to why it was unable to
provide the requested information.55
On August 3, 2010, the Department
requested that Starbright provide
documentation to substantiate the rebate
amounts for one sample customer
reported in exhibit C–4 of its original
section C response. On August 27, 2010,
Starbright again revised its worksheet
for 2008 rebates, and explained that the
reported information ‘‘is from GPX’s
system. As such, GPX believes these
amounts to be substantiated.’’ 56
Starbright stated that based on
information already provided, the
52 See
Questionnaire at C–23.
Starbright’s April 27, 2010, sections C
questionnaire response at 35 and Exhibit C–4.
54 See Letter from the Department to Starbright:
‘‘First Administrative Review of the Antidumping
Duty Order on New Pneumatic Off-the-Road Tires
from the People’s Republic of China: Supplemental
Section C Questionnaire’’, dated July 1, 2010, at 7.
55 See Starbright’s August 2, 2010, supplemental
questionnaire response at 22–24.
56 See id. at 9.
53 See
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Department ‘‘is able to calculate an
antidumping margin that is
substantiated by data and
documentation drawn directly from
GPX’s accounting system.’’ 57 With
respect to the documentation that the
Department repeatedly requested, such
as copies of rebate agreements,
Starbright stated that ‘‘it is virtually
impossible for GPX to provide this
documentation at this time.’’ 58
According to Starbright, as a result of
GPX’s bankruptcy, ‘‘for all practical
purposes, GPX, no longer exists * * *
and the human staff has long since been
dismissed.’’ 59 As a result, Starbright
argued that ‘‘it would be unduly
burdensome to require GPX to provide
this additional documentation.’’ 60
With respect to its 2009 rebates,
Starbright reported one program related
solely to a specific customer, and
another rebate program related to
another specific customer. Starbright
explained the relevant customer codes
to which these two rebate programs
were allocable. Starbright also reported
an additional rebate program, claiming
that a group of buyers ‘‘joined together
in order to receive better large-scale
pricing and/or rebates, (similar to a
cooperative).’’ 61 Stabright explained
that it was ‘‘still working to allocate the
rebates’’ for this customer grouping, on
a customer and/or product code basis.62
While Starbright reported the 2009
rebate rate for this rebate program, and
claimed it could identify the full
amount of the rebate paid, it stated that
it could not identify the group of
customers that participated in this
rebate program, and thus it allocated the
total claimed amount paid out over all
2009 U.S. sales of subject merchandise.
On September 1, 2010, the
Department explained that Starbright
had failed to provide the requested
documentation to substantiate the
reported rebate amount for a previouslyselected sample customer. The
Department again requested that
Starbright provide a copy of the rebate
agreement that established the rebate
amount for that customer, as well as
rebate receipts or any other documents
that substantiate the numbers reported
in Starbright’s rebate worksheets.63 The
57 See
id.
id.
59 See id.
60 See id. at 10.
61 See id.
62 See id.
63 See Letter from the Department to Starbright:
‘‘First Administrative Review of the Antidumping
Duty Order on New Pneumatic Off-the-Road Tires
from the People’s Republic of China: Third
Supplemental Sections A, C, and D Questionnaire’’,
dated September 1, 2010, at 5.
mstockstill on DSKH9S0YB1PROD with NOTICES
58 See
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Department also asked Starbright to
document efforts to obtain the requested
information in light of its claim that it
would be unduly burdensome to require
GPX to provide that documentation.64 In
response, Starbright provided a credit
memo used to grant the customer a
credit in the amount of the rebate, but
no documentation establishing the
rebate rate, and no explanation for why
it was unable to provide this
documentation repeatedly requested by
the Department.65 Starbright has still
not allocated rebates to the cooperative
customer grouping discussed in its
August 27, 2010, response, and nor has
it identified the members of this
customer grouping. In response to the
Department’s request for documentation
of Starbright’s efforts to access
substantiating documents, Starbright
submitted a letter from the attorney for
the liquidating supervisor for GPX
explaining that, due to GPX’s
liquidation, ‘‘complying with
Commerce’s demands is extremely
difficult.’’ 66 Starbright also submitted a
declaration from a former GPX
employee describing the liquidation
process and a general summary of the
employee’s efforts to retrieve requested
documents.67 Neither submission nor
the narrative provided to explain the
submissions indicated any specific
attempts to access the requested
documents before September 2010,
more than eight months after the
Department first requested the
information. Because Starbright did not
provide the requested data the
Department preliminary determines that
it is appropriate to use facts available
under sections 776(a)(1) and (a)(2)(B) of
the Act. Because Starbright failed to
promptly inform the Department of any
difficulty in obtaining the data and
failed to provide usable information by
the applicable deadlines, the conditions
of section 782(c)(1) and (e), to which
section 776(a)(2)(B) is subject, have not
been satisfied. Further, because
Starbright did not satisfactorily
demonstrate how it was unable to
provide or unduly burdensome to
provide the requested information, we
determine that an adverse inference in
using facts available under section
776(b) of the Act is warranted. As AFA,
the Department is applying the reported
rebate rate from this 2009 program to all
2009 sales for all customers, with the
exception of the two customers
identified by Starbright as having their
64 See
id. at 3–4.
Starbright’s September 13, 2010,
supplemental questionnaire response at 14.
66 See id at 1–4 and Exhibit 4SA–1.
67 See id.
65 See
PO 00000
Frm 00025
Fmt 4703
Sfmt 4703
64267
own rebate programs. See Starbright
Preliminary Analysis Memorandum.
Currency Conversion
We made currency conversions into
U.S. dollars, where appropriate, 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 preliminary find that the
following margins exist:
Exporter
Hebei Starbright Tire Co., Ltd ......
Hanghzou Zhongce Rubber Co.,
Ltd.
KS Holding Limited/KS Resources
Limited
Laizhou Xiongying Rubber Industry Co., Ltd.
Qingdao Taifa Group Co., Ltd ......
Weihai Zhongwei Rubber Co., Ltd
Percent
margin
20.74
20.74
20.74
20.74
20.74
20.74
We have not made an adjustment to the
U.S. price for export subsidies because
Starbright was not found to have export
subsidies in the most recently
completed segment of the companion
countervailing duty proceeding.68
Disclosure
We will disclose the calculations used
in our analysis to parties to this
proceeding within five days of the
publication date of this notice. See 19
CFR 351.224(b). Interested parties are
invited to comment on the preliminary
results and may submit case briefs and/
or written comments within 30 days of
the date of publication of this notice.
See 19 CFR 351.309(c). Interested
parties may file rebuttal briefs and
rebuttals to written comments, limited
to issues raised in such briefs or
comments, no later than five days after
the date on which the case briefs are
due. See 19 CFR 351.309(d). The
Department requests that parties
submitting written comments provide
an executive summary and a table of
authorities as well as an additional copy
of those comments electronically.
Any interested party may request a
hearing within 30 days of publication of
this notice. See 19 CFR 351.310(c). If a
request for a hearing is made, parties
will be notified of the time and date for
the hearing to be held at the U.S.
Department of Commerce, 14th Street
68 Similarly, because no export subsidies were
found to be applicable to ‘‘all others’’ in the most
recently completed segment of the companion
countervailing duty proceeding, we also have not
adjusted the rate applied to the separate rate
recipients.
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Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Notices
and Constitution Avenue, NW.,
Washington, DC 20230. See 19 CFR
351.310(d). The Department will issue
the final results of this administrative
review, which will include the results of
its analysis of issues raised in any such
comments, within 120 days of
publication of these preliminary results,
pursuant to section 751(a)(3)(A) of the
Act.
mstockstill on DSKH9S0YB1PROD with NOTICES
Deadline for Submission of Publicly
Available Surrogate Value Information
In accordance with 19 CFR
351.301(c)(3)(ii), the deadline for
submission of publicly available
information to value FOPs under 19
CFR 351.408(c) is 20 days after the date
of publication of the preliminary results.
In accordance with 19 CFR
351.301(c)(1), if an interested party
submits factual information less than
ten days before, on, or after (if the
Department has extended the deadline),
the applicable deadline for submission
of such factual information, an
interested party may submit factual
information to rebut, clarify, or correct
the factual information no later than ten
days after such factual information is
served on the interested party. However,
the Department generally will not
accept in the rebuttal submission
additional or alternative surrogate value
information not previously on the
record, if the deadline for submission of
surrogate value information has
passed.69 Furthermore, the Department
generally will not accept business
proprietary information in either the
surrogate value submissions or the
rebuttals thereto, as the regulation
regarding the submission of surrogate
values allows only for the submission of
publicly available information. See 19
CFR 351.301(c)(3).
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries covered by this
review. The Department intends to issue
assessment instructions to CBP 15 days
after the publication date of the final
results of this review. In accordance
with 19 CFR 351.212(b)(1), we
calculated exporter/importer (or
customer)-specific assessment rates for
the merchandise subject to this review.
Where the respondent reports reliable
entered values, we calculate importer
(or customer)-specific ad valorem rates
69 See, e.g., 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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16:24 Oct 18, 2010
Jkt 223001
by aggregating the dumping margins
calculated for all U.S. sales to each
importer (or customer) and dividing this
amount by the total entered value of the
sales to each importer (or customer). See
19 CFR 351.212(b)(1). Where an
importer (or customer)-specific ad
valorem rate is greater than de minimis,
we will apply the assessment rate to the
entered value of the importers’/
customers’ entries during the POR. See
19 CFR 351.212(b)(1). Where we do not
have entered values for all U.S. sales,
we calculate a per-unit assessment rate
by aggregating the antidumping duties
due for all U.S. sales to each importer
(or customer) and dividing this amount
by the total quantity sold to that
importer (or customer).
To determine whether the duty
assessment rates are de minimis, in
accordance with the requirement set
forth in 19 CFR 351.106(c)(2), we
calculated importer (or customer)specific ad valorem ratios based on the
estimated entered value. Where an
importer (or customer)-specific ad
valorem rate is zero or de minimis, we
will instruct CBP to liquidate
appropriate entries without regard to
antidumping duties. See 19 CFR
351.106(c)(2).
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) For
Starbright, Hangzhou Zhongce, KS Ltd.,
Laizhou Xiongying, Qingdao Taifa and
Weihai Zhongwei, the cash deposit rate
will be the company-specific rate
established in the final results of this
review (except, if the rate is zero or de
minimis, no cash deposit will be
required); (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 or exporter/
producer-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 210.48 percent;
and (4) for all non-PRC exporters of
subject merchandise that have not
received their own rate, the cash deposit
rate will be the rate applicable to the
PRC exporters that supplied that nonPRC exporter. These deposit
requirements, when imposed, shall
remain in effect until further notice.
PO 00000
Frm 00026
Fmt 4703
Sfmt 4703
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.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act.
Dated: October 7, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–26193 Filed 10–18–10; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[C–570–913]
New Pneumatic Off-the-Road Tires
From the People’s Republic of China:
Preliminary Results of Countervailing
Duty Administrative Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(the Department) is conducting an
administrative review of Hebei
Starbright Tire Co., Ltd. (Starbright)
under the countervailing duty order on
certain new pneumatic off-the-road tires
(OTR Tires) from the People’s Republic
of China (PRC) for the period December
17, 2007, through December 31, 2008.
We preliminarily determine that
subsidies are being provided to
Starbright for the production and export
of certain new pneumatic off-the-road
tires from the PRC. See ‘‘Preliminary
Results of Administrative Review’’
section, below. If the final results
remain the same as the preliminary
results of this review, we will instruct
U.S. Customs and Border Protection
(CBP) to assess countervailing duties at
the rate indicated below. Interested
parties are invited to comment on the
preliminary results of this
administrative review. See ‘‘Disclosure
and Public Comments’’ section below.
DATES: Effective Date: October 19, 2010.
FOR FURTHER INFORMATION CONTACT:
Andrew Huston or Jun Jack Zhao, AD/
CVD Operations, Office 6, Import
Administration, International Trade
AGENCY:
E:\FR\FM\19OCN1.SGM
19OCN1
]]>Agencies
[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Notices]
[Pages 64259-64268]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-26193]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-912]
Certain New Pneumatic Off-the-Road Tires From the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') is conducting
an administrative review of the antidumping duty order on certain new
pneumatic off-the-road tires (``OTR tires'') from the People's Republic
of China (``PRC'') covering the period February 20, 2008, through
August 31, 2009. The administrative review (``AR'') covers six
exporters. We have preliminarily determined that certain exporters who
participated fully and are entitled to a separate rate sold subject
merchandise to the United States at prices below normal value (``NV'')
during the period of review (``POR''). If these preliminary results are
adopted in our final results of review, we will instruct U.S. Customs
and Border Protection (``CBP'') to assess antidumping duties on entries
of subject merchandise during the POR for which the importer-specific
assessment rates are above de minimis.
We invite interested parties to comment on these preliminary
results. We intend to issue the final results no later than 120 days
from the date of publication of this notice, pursuant to section
751(a)(3)(A) of the Tariff Act of 1930, as amended (``the Act'').
DATES: Effective Date: October 19, 2010.
FOR FURTHER INFORMATION CONTACT: Raquel Silva or Lilit Astvatsatrian,
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-
6475 or (202) 482-6412, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 4, 2008, the Department published the antidumping duty
order on OTR Tires from the PRC. See Certain New Pneumatic Off-the-Road
Tires From the People's Republic of China: Notice of Amended Final
Affirmative Determination of Sales at Less Than Fair Value and
Antidumping Duty Order, 73 FR 51624 (September 4, 2008). On September
1, 2009, the Department published a notice of opportunity to request an
administrative review of this order for the February 20, 2008, through,
August 31, 2009, POR (hereinafter referred to as the 2008-2009 review).
See Antidumping or Countervailing Duty Order, Finding, or Suspended
Investigation; Opportunity to Request Administrative Review, 74 FR
45179 (September 1, 2009). In accordance with 19 CFR 351.213(b),
interested parties made requests for review between September 23, 2009,
and September 30, 2009, on fifteen exporters. On October 26, 2009, the
Department initiated the 2008-2009 review.\1\ GPX International Tire
Corporation (``GPX'') requested that the Department conduct a review of
exports of eight of the fifteen exporters. On November 20, 2009, GPX
withdrew its review request for seven of the eight exporters for which
it requested review, but maintained its request that the Department
conduct a review of Hebei Starbright Tire Co., Ltd. (``Starbright'').
On January 22, 2010, the Department selected Starbright and TUTRIC as
mandatory respondents. Between November 24, 2009, and February 24,
2010, three more parties withdrew their respective review requests
related to these same exporters, including TUTRIC. On May 21, 2010, the
Department rescinded the administrative reviews of OTR tires with
respect to TUTRIC and seven additional exporters because all parties
requesting reviews of these entities had withdrawn their respective
requests.\2\
---------------------------------------------------------------------------
\1\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Request for Revocation in Part, 74 FR
54956, 54958 (October 26, 2009) (``Initiation Notice''). The
Department initiated reviews of (1) Aeolus Tyre Co., Ltd.
(``Aeolus''), (2) Guizhou Tire Co., Ltd. (``GTC''), (3) Hanghzou
Zhongce Rubber Co., Ltd. (``Hangzhou Zhongce''), (4) Starbright, (5)
Innova Rubber Co., Ltd. (``Innova''), (6) Jiangsu Feichi Co., Ltd.
(``Feichi''), (7) KS Holding Limited/KS Resources Limited (``KS
Ltd.''), (8) Laizhou Xiongying Rubber Industry Co., Ltd. (Laizhou
Xiongying''), (9) Qingdao Free Trade Zone Full-World International
Trading Co. (``Full World''), Ltd., (10) Qingdao Taifa Group Co.,
Ltd. (Qingdao Taifa''), (11) Shandong Huitong Tyre Co., Ltd.
(``Huitong''), (12) Tianjin Wanda Tyre Group (Wanda''), (13) Tianjin
United Tire & Rubber International Co., Ltd. (``TUTRIC''), (14)
Triangle Tyre Co., Ltd. (``Triangle''), and (15) Weihai Zhongwei
Rubber Co., Ltd. (``Weihai Zhongwei'').
\2\ See New Pneumatic Off-the-Road Tires From the People's
Republic of China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 28567 (May 21, 2010). In addition to
TUTRIC, the Department rescinded the reviews of Aeolus, Feichi, GTC,
Huitong, Innova, Triangle and Wanda.
---------------------------------------------------------------------------
On January 28, 2010, Hanify & King, bankruptcy counsel to GPX,
informed the Department of GPX's filing of a Chapter 11 petition under
the United States Bankruptcy Code on October 26, 2009, which counsel
claimed automatically stayed the Department's administrative
proceedings with respect to GPX. On February 3, 2010, both domestic
interested parties \3\ submitted letters to the Department expressing
concerns about the effect of GPX's bankruptcy petition on the ongoing
administrative review. In response to parties' concerns, the Department
extended regulatory deadlines for Titan and Bridgestone until
resolution of those concerns. On February 12, 2010, as a result of
Government closures during snowstorms, Import Administration tolled all
deadlines by one calendar week. See Memorandum from DAS for Import
Administration, ``Tolling of Administrative Deadlines As A Result of
the Government Closure During the Recent Snowstorm,'' dated February
12, 2010, available at https://ia.ita.doc.gov/ia-highlights-and-news.html. On May 5, 2010, upon resolution of issues related to GPX's
bankruptcy petition, the Department extended the deadlines for (1)
Verification requests, (2) factual information submissions, (3)
comments on surrogate country selection, and (4) submission of publicly
available information for valuing factors of production.
---------------------------------------------------------------------------
\3\ Titan Tire Corporation (``Titan''), and Bridgestone
Americas, Inc., and Bridgestone Americas Tire Operations, LLC
(collectively ``Bridgestone''), both domestic producers of the like
product.
---------------------------------------------------------------------------
On May 5, 2010, the Department selected Qingdao Free Trade Zone
Full World International Trading Co., Ltd. (``Full-World'') as the
mandatory respondent to replace TUTRIC. On May 26, 2010, Full-World
withdrew its request for an administrative review of its exports. On
August 4, 2010, the Department published in the Federal Register a
notice rescinding the administrative review of OTR tires with respect
to Full-World.\4\
---------------------------------------------------------------------------
\4\ See New Pneumatic Off-the-Road Tires from the People's
Republic of China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 46917 (August 4, 2010).
---------------------------------------------------------------------------
On June 7, 2010, the Department published in the Federal Register a
notice fully extending the time limit for the preliminary results of
this review to October 7, 2010. See New Pneumatic Off-the-Road Tires
from the People's Republic of China: Extension of Preliminary Results
of Antidumping
[[Page 64260]]
Duty Administrative Review, 75 FR 32158 (June 7, 2010). On July 23,
2010, and July 29, 2010, parties submitted comments on surrogate
country selection. On July 29, 2010, parties submitted comments on
surrogate values. On August 10, 2010, parties submitted rebuttal
comments on surrogate values. Between January 22, 2010, and September
1, 2010, the Department issued to Starbright the original antidumping
questionnaire, and six supplemental questionnaires. Between February
24, 2010, and September 10, 2010, Starbright submitted timely responses
to the Department's seven questionnaires.
Period of Review
The POR is February 20, 2008, through August 31, 2009.
Scope of Order
The products covered by the order are new pneumatic tires designed
for off-the-road and off-highway use, subject to exceptions identified
below. Certain OTR tires are generally designed, manufactured and
offered for sale for use on off-road or off-highway surfaces, including
but not limited to, agricultural fields, forests, construction sites,
factory and warehouse interiors, airport tarmacs, ports and harbors,
mines, quarries, gravel yards, and steel mills. The vehicles and
equipment for which certain OTR tires are designed for use include, but
are not limited to: (1) Agricultural and forestry vehicles and
equipment, including agricultural tractors,\5\ combine harvesters,\6\
agricultural high clearance sprayers,\7\ industrial tractors,\8\ log-
skidders,\9\ agricultural implements, highway-towed implements,
agricultural logging, and agricultural, industrial, skid-steers/mini-
loaders; \10\ (2) construction vehicles and equipment, including
earthmover articulated dump products, rigid frame haul trucks,\11\
front end loaders,\12\ dozers,\13\ lift trucks, straddle carriers,\14\
graders,\15\ mobile cranes,\16\ compactors; and (3) industrial vehicles
and equipment, including smooth floor, industrial, mining,
counterbalanced lift trucks, industrial and mining vehicles other than
smooth floor, skid-steers/mini-loaders, and smooth floor off-the-road
counterbalanced lift trucks.\17\ The foregoing list of vehicles and
equipment generally have in common that they are used for hauling,
towing, lifting, and/or loading a wide variety of equipment and
materials in agricultural, construction and industrial settings. Such
vehicles and equipment, and the descriptions contained in the footnotes
are illustrative of the types of vehicles and equipment that use
certain OTR tires, but are not necessarily all-inclusive. While the
physical characteristics of certain OTR tires will vary depending on
the specific applications and conditions for which the tires are
designed (e.g., tread pattern and depth), all of the tires within the
scope have in common that they are designed for off-road and off-
highway use. Except as discussed below, OTR tires included in the scope
of the order range in size (rim diameter) generally but not exclusively
from 8 inches to 54 inches. The tires may be either tube-type \18\ or
tubeless, radial or non-radial, and intended for sale either to
original equipment manufacturers or the replacement market. The subject
merchandise is currently classifiable under Harmonized Tariff Schedule
of the United States (``HTSUS'') subheadings: 4011.20.10.25,
4011.20.10.35, 4011.20.50.30, 4011.20.50.50, 4011.61.00.00,
4011.62.00.00, 4011.63.00.00, 4011.69.00.00, 4011.92.00.00,
4011.93.40.00, 4011.93.80.00, 4011.94.40.00, and 4011.94.80.00. While
HTSUS subheadings are provided for convenience and customs purposes,
our written description of the scope is dispositive.
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\5\ Agricultural tractors are dual-axle vehicles that typically
are designed to pull farming equipment in the field and that may
have front tires of a different size than the rear tires.
\6\ Combine harvesters are used to harvest crops such as corn or
wheat.
\7\ Agricultural sprayers are used to irrigate agricultural
fields.
\8\ Industrial tractors are dual-axle vehicles that typically
are designed to pull industrial equipment and that may have front
tires of a different size than the rear tires.
\9\ A log-skidder has a grappling lift arm that is used to
grasp, lift and move trees that have been cut down to a truck or
trailer for transport to a mill or other destination.
\10\ Skid-steer loaders are four-wheel drive vehicles with the
left-side drive wheels independent of the right-side drive wheels
and lift arms that lie alongside the driver with the major pivot
points behind the driver's shoulders. Skid-steer loaders are used in
agricultural, construction and industrial settings.
\11\ Haul trucks, which may be either rigid frame or articulated
(i.e., able to bend in the middle) are typically used in mines,
quarries and construction sites to haul soil, aggregate, mined ore,
or debris.
\12\ Front loaders have lift arms in front of the vehicle. They
can scrape material from one location to another, carry material in
their buckets, or load material into a truck or trailer.
\13\ A dozer is a large four-wheeled vehicle with a dozer blade
that is used to push large quantities of soil, sand, rubble, etc.,
typically around construction sites. They can also be used to
perform ``rough grading'' in road construction.
\14\ A straddle carrier is a rigid frame, engine-powered machine
that is used to load and offload containers from container vessels
and load them onto (or off of) tractor trailers.
\15\ A grader is a vehicle with a large blade used to create a
flat surface. Graders are typically used to perform ``finish
grading.'' Graders are commonly used in maintenance of unpaved roads
and road construction to prepare the base course on to which asphalt
or other paving material will be laid.
\16\ I.e., ``on-site'' mobile cranes designed for off-highway
use.
\17\ A counterbalanced lift truck is a rigid framed, engine-
powered machine with lift arms that has additional weight
incorporated into the back of the machine to offset or
counterbalance the weight of loads that it lifts so as to prevent
the vehicle from overturning. An example of a counterbalanced lift
truck is a counterbalanced fork lift truck. Counterbalanced lift
trucks may be designed for use on smooth floor surfaces, such as a
factory or warehouse, or other surfaces, such as construction sites,
mines, etc.
\18\ While tube-type tires are subject to the scope of this
proceeding, tubes and flaps are not subject merchandise and
therefore are not covered by the scope of this proceeding,
regardless of the manner in which they are sold (e.g., sold with or
separately from subject merchandise).
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Specifically excluded from the scope are new pneumatic tires
designed, manufactured and offered for sale primarily for on-highway or
on-road use, including passenger cars, race cars, station wagons, sport
utility vehicles, minivans, mobile homes, motorcycles, bicycles, on-
road or on-highway trailers, light trucks, and trucks and buses. Such
tires generally have in common that the symbol ``DOT'' must appear on
the sidewall, certifying that the tire conforms to applicable motor
vehicle safety standards. Such excluded tires may also have the
following designations that are used by the Tire and Rim Association:
Prefix Letter Designations
P--Identifies a tire intended primarily for service on
passenger cars;
LT--Identifies a tire intended primarily for service on
light trucks; and,
ST--Identifies a special tire for trailers in highway
service.
Suffix Letter Designations
TR--Identifies a tire for service on trucks, buses, and
other vehicles with rims having specified rim diameter of nominal plus
0.156'' or plus 0.250''
MH--Identifies tires for Mobile Homes;
HC--Identifies a heavy duty tire designated for use on
``HC'' 15'' tapered rims used on trucks, buses, and other vehicles.
This suffix is intended to differentiate among tires for light trucks,
and other vehicles or other services, which use a similar designation.
Example: 8R17.5 LT, 8R17.5 HC;
LT--Identifies light truck tires for service on trucks,
buses, trailers, and multipurpose passenger vehicles used in nominal
highway service; and
MC--Identifies tires and rims for motorcycles.
The following types of tires are also excluded from the scope:
Pneumatic tires that are not new, including recycled or retreaded tires
and used
[[Page 64261]]
tires; non-pneumatic tires, including solid rubber tires; tires of a
kind designed for use on aircraft, all-terrain vehicles, and vehicles
for turf, lawn and garden, golf and trailer applications. Also excluded
from the scope are radial and bias tires of a kind designed for use in
mining and construction vehicles and equipment that have a rim diameter
equal to or exceeding 39 inches. Such tires may be distinguished from
other tires of similar size by the number of plies that the
construction and mining tires contain (minimum of 16) and the weight of
such tires (minimum 1500 pounds).
Non-Market Economy Country Status
No party contested the Department's treatment of the PRC as a non-
market economy (``NME'') country, and the Department has treated the
PRC as an NME country in all past antidumping duty investigations and
administrative reviews.\19\ No interested party in this case has argued
that we should do otherwise. Designation as an NME country remains in
effect until it is revoked by the Department. See section 771(18)(C)(i)
of the Act. As such, we continue to treat the PRC as an NME in this
proceeding.
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\19\ See, e.g., Chlorinated Isocyanurates from the People's
Republic of China: Final Results of Antidumping Duty Administrative
Review, 73 FR 52645 (September 10, 2008); see also Folding Metal
Tables and Chairs from the People's Republic of China: Final Results
of Antidumping Duty Administrative Review, 74 FR 3560 (January 21,
2009).
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Surrogate Country
Section 773(c)(1) of the Act directs the Department to base NV on
the NME producer's factors of production (``FOPs''), valued in a
surrogate market economy (``ME'') 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 use, to the extent
possible, the prices or costs of the FOPs in one or more ME countries
that are: (1) At a level of economic development comparable to that of
the NME country; and (2) significant producers of comparable
merchandise. The sources of the surrogate factor values are discussed
under the ``Normal Value'' section below. See Memorandum to The File,
``Preliminary Results of the 2008-2009 Administrative Review of New
Pneumatic Off-the-Road Tires from the People's Republic of China:
Surrogate Value Memorandum,'' dated concurrently with this notice
(``Surrogate Value Memorandum'').
The Department determined that India, Indonesia, Ukraine, Peru, the
Philippines and Thailand are countries comparable to the PRC in terms
of economic development.\20\ Once we have identified the countries that
are economically comparable to the PRC, we select 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.
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\20\ See Memoranda to Wendy J. Frankel, Office Director, AD/CVD
Operations, Office 8, ``Request for a List of Surrogate Countries
for an Administrative Review of the Antidumping Duty Order Covering
New Pneumatic Off-the-Road Tires from the People's Republic of
China,'' dated January 25, 2010.
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The Department has determined that India is the appropriate
surrogate country for use in this review. The Department based its
decision on the following facts: (1) India is at a level of economic
development comparable to that of the PRC; (2) India is a significant
producer of comparable merchandise; and (3) India provides the best
opportunity to use quality, publicly available data to value the FOPs.
Titan and Bridgestone provided comments on July 23, 2010, and July 29,
2010, respectively, arguing that India is the appropriate surrogate
country for use in this review. Additionally, the data submitted by
Titan, Bridgestone and Starbright for our consideration as potential
surrogate values are sourced from India.
Therefore, because India best represents the experience of
producers of comparable merchandise operating in an ME, we have
selected India as the surrogate country and, accordingly, have
calculated NV using Indian prices to value the respondent's FOPs, when
available and appropriate. See Surrogate Value Memorandum. We have
obtained and relied upon publicly available information wherever
possible.
Separate Rates
In the Initiation Notice, the Department applied a process by which
exporters and producers not being individually reviewed may obtain
separate-rate status in NME reviews. The process requires exporters and
producers to submit a separate-rate status application (``SRA'') or
separate-rate status certification (``SRC'').\21\ However, the standard
for eligibility for a separate rate (which is whether a firm can
demonstrate an absence of both de jure and de facto government control
over its export activities) has not changed. From November 30 to
December 2, 2009, six exporters of the subject merchandise filed timely
responses to the Department's SRAs or SRCs, as applicable.\22\
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\21\ See Policy Bulletin 05.1: Separate-Rates Practice and
Application of Combination Rates in Antidumping Investigations
involving Non-Market Economy Countries (April 5, 2005), available at
https://ia.ita.doc.gov/policy/bull05-1.pdf.
\22\ Hangzou Zhongce; Starbright; KS Ltd.; Laizhou Xiongying;
Qingdao Taifa; and Weihai Zhongwei.
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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.\23\ It is the Department's policy to assign all
exporters of merchandise subject to review in an NME country this
single rate unless an exporter can demonstrate that it is sufficiently
independent so as to be entitled to a separate rate.\24\ Exporters can
demonstrate this independence through the absence of both de jure and
de facto government control over export activities. The Department
analyzes each entity exporting the subject merchandise under a test
arising from the Notice of Final Determination of Sales at Less Than
Fair Value: Sparklers from the People's Republic of China, 56 FR 20588,
at Comment 1 (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, 22587 (May 2,
1994) (``Silicon Carbide''). However, if the Department determines that
a company is wholly foreign-owned or located in an ME, then an SRA
analysis is not necessary to determine whether it is independent from
government control.\25\
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\23\ See, e.g., Certain Coated Paper Suitable for High-Quality
Print Graphics Using Sheet-Fed Presses From the People's Republic of
China: Notice of Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination, 75 FR 24892,
24899 (May 6, 2010) (unchanged in Certain Coated Paper Suitable for
High-Quality Print Graphics Using Sheet-Fed Presses From the
People's Republic of China: Final Determination of Sales at Less
Than Fair Value, 75 FR 59217 (September 27, 2010)).
\24\ Id.
\25\ See, e.g., Final Results of Antidumping Duty Administrative
Review: Petroleum Wax Candles From the People's Republic of China,
72 FR 52355, 52356 (September 13, 2007).
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A. Separate-Rate Recipients \26\
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\26\ All separate-rate applicants receiving a separate rate are
hereby referred to collectively as the ``SR Recipients;'' this
includes the mandatory respondent.
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1. Wholly Foreign-Owned
Starbright reported that during the POR it was wholly owned by GPX,
a U.S. company, and KS Ltd. reported in its SRA that it is wholly-owned
by a company located in Hong Kong. Therefore, consistent with the
[[Page 64262]]
Department's practice, a further SRA analysis is not necessary to
determine whether Starbright's and KS Ltd.'s export activities are
independent from government control, and we have preliminarily granted
a separate rate to Starbright and KS Ltd.\27\
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\27\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value: Creatine Monohydrate from the People's Republic of
China, 64 FR 71104, 71104-05 (December 20, 1999) (where the
respondent was wholly foreign-owned and, thus, qualified for a
separate rate).
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2. Wholly Chinese-Owned Companies
Hangzhou Zhongce, Laizhou Xiongying, Qingdao Taifa, and Weihai
Zhongwei stated that they are wholly Chinese-owned companies
(collectively ``PRC SR Applicants''). Therefore, the Department must
analyze whether these respondents can demonstrate the absence of both
de jure and de facto governmental control over export activities.
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies.\28\
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\28\ See Sparklers, 56 FR at 20589.
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The evidence provided by the PRC SR Recipients \29\ 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) there
are applicable legislative enactments decentralizing control of the
companies; and (3) there are formal measures by the government
decentralizing control of companies.
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\29\ Collective reference for all respondents receiving a
separate rate in this administrative review.
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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.\30\ 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
placed on the record of this review by the PRC SR Recipients
demonstrates an absence of de jure and de facto government control with
respect to each of the exporters' exports of the merchandise under
consideration, in accordance with the criteria identified in Sparklers
and Silicon Carbide.
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\30\ 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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Rate for Non-Selected Companies
The statute and the Department's regulations do not address the
establishment of a rate to be applied to individual companies not
selected for examination where the Department limited its examination
in an administrative review pursuant to section 777A(c)(2) of the Act.
Generally, we have looked to section 735(c)(5) of the Act, which
provides instructions for calculating the all-others rate in an
investigation, for guidance when calculating the rate for respondents
we did not examine in an administrative review. For the exporters
subject to a review that were determined to be eligible for separate
rate status, but were not selected as mandatory respondents, the
Department generally weight-averages the rates calculated for the
mandatory respondents, excluding any rates that are zero, de minimis,
or based entirely on FA.\31\ For this administrative review, the
Department has calculated a positive margin for the single mandatory
respondent, Starbright. Accordingly, for these preliminary results,
consistent with our practice, the Department has preliminarily
established a margin for the SR Recipients based on the rate calculated
for the single mandatory respondent, Starbright.
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\31\ See, e.g., Wooden Bedroom Furniture from the People's
Republic of China: Preliminary Results of Antidumping Duty
Administrative Review, Preliminary Results of New Shipper Review and
Partial Rescission of Administrative Review, 73 FR 8273, 8279
(February 13, 2008) (unchanged in Wooden Bedroom Furniture from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review and New Shipper Review, 73 FR 49162 (August
20, 2008)).
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Date of Sale
Section 401(i) of the Department's regulations states that:
In identifying the date of sale of the subject merchandise or
foreign like product, the Secretary normally will use the date of
invoice, as recorded in the exporter or producer's records kept in
the ordinary course of business. However, the Secretary may use a
date other than the date of invoice if the Secretary is satisfied
that a different date better reflects the date on which the exporter
or producer establishes the material terms of sale.
See also Allied Tube and Conduit Corp. v. United States, 132 F. Supp.
2d 1087, 1090-1092 (CIT 2001) (upholding the Department's rebuttable
presumption that invoice date is the appropriate date of sale). After
examining the questionnaire responses and the sales documentation
placed on the record by Starbright, we preliminarily determine that
invoice date is the most appropriate date of sale for Starbright.
Nothing on the record rebuts the presumption that invoice date should
be the date of sale.
Normal Value Comparisons
To determine whether Starbright's sales of OTR tires to the United
States were made at less than NV, we compared constructed export price
(``CEP'') to NV, as described in the ``Constructed Export Price,'' and
``Normal Value'' sections of this notice, pursuant to section 771(35)
of the Act.
Constructed Export Price
In accordance with section 772(b) of the Act, CEP is the price at
which the subject merchandise 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. In accordance with section 772(b) of the Act, we used
CEP for Starbright's sales because the sales were made by GPX,
Starbright's U.S. affiliate in the United States.
We calculated CEP based on delivered prices to unaffiliated
purchasers in the United States. In accordance with section 772(d)(1)
of the Act, we made deductions from the starting price for billing
adjustments, movement expenses, discounts and rebates, and selling
expenses in the U.S. market. We made deductions from the U.S. sales
price for movement expenses in accordance with section 772(c)(2)(A) of
the Act. These included, where applicable, foreign inland freight and
insurance from the plant to the port of
[[Page 64263]]
exportation, foreign inland insurance, ocean freight, marine insurance,
U.S. Customs duty, U.S. brokerage and handling, U.S. inland freight
from port to the warehouse, warehousing expense and U.S. inland freight
from the warehouse to the customer. In accordance with section
772(d)(1) of the Act, the Department deducted, where applicable,
commissions, credit expenses, warranty expenses, inventory carrying
costs and indirect selling expenses from the U.S. price, all of which
relate to commercial activity in the United States. In calculating its
reported indirect selling expenses, the company did not include a
significant number of items that it later claimed should be excluded;
however, it did not provide any substantiation for this claim.
Accordingly, for purposes of these preliminary results of review, we
have included these items in the indirect selling expense adjustment to
U.S. price.\32\ Further, we did not grant an offset to interest
expenses for short-term interest income because Starbright did not
demonstrate that any of GPX's interest income was generated from short-
term assets. However, we will issue a post-preliminary supplemental
questionnaire to Starbright requesting that it provide substantiating
documentation for its claim that all of its originally excluded items
should be excluded from indirect selling expenses, and provide
Starbright an opportunity to provide evidence that any of GPX's
interest income was short term in nature. In addition, we deducted CEP
profit in accordance with sections 772(d)(3) and 772(f) of the Act. In
accordance with section 772(d) of the Act, we calculated Starbright's
credit expenses and inventory carrying costs based on the actual short-
term interest rate reported for loans obtained by GPX during the
POR.\33\
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\32\ See Memorandum to the File, ``Certain New Pneumatic Off-
The-Road Tires from the People's Republic of China: Analysis
Memorandum for the Preliminary Determination: Hebei Starbright Tire
Co., Ltd. (`Starbright'),'' dated October 7, 2010 (`Starbright
Preliminary Analysis Memorandum'').
\33\ See Starbright Preliminary Analysis Memorandum.
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Normal Value
Section 773(c)(1) of the Act provides that, in the case of an NME,
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 NME economies renders price comparisons
and the calculation of production costs invalid under our normal
methodologies. Therefore, in these preliminary results, we have
calculated NV based on FOPs in accordance with sections 773(c)(3) and
(4) of the Act and 19 CFR 351.408(c). The FOPs include: (1) Hours of
labor required; (2) quantities of raw materials employed; (3) amounts
of energy and other utilities consumed; and (4) representative capital
costs. In accordance with 19 CFR 351.408(c)(1), the Department normally
uses publicly available information to value the FOPs. However, when a
producer sources a meaningful amount of an input from an ME country and
pays for it in ME currency, the Department may value the factor using
the actual price paid for the input.\34\ Further, the Department
disregards prices it has reason to suspect may be subsidized.\35\
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\34\ See 19 CFR 351.408(c)(1); see also Lasko Metal Products v.
United States, 43 F.3d 1442, 1445-1446 (Fed. Cir. 1994) (affirming
the Department's use of market-based prices to value certain FOPs).
\35\ See, e.g., China National Machinery Import & Export Corp.
v. United States, 293 F. Supp. 2d 1334, 1339 (CIT 2003) (aff'd, 104
Fed. Appx. 183 (Fed. Cir. 2004)) (``China National Machinery''), and
see Frontseating Service Valves from the People's Republic of China;
Preliminary Determination of Sales at Less Than Fair Value,
Preliminary Negative Determination of Critical Circumstances, and
Postponement of Final Determination, 73 FR 62952 (October 22, 2008)
(unchanged in Frontseating Service Valves from the People's Republic
of China: Final Determination of Sales at Less Than Fair Value and
Final Negative Determination of Critical Circumstances, 74 FR 10886
(March 13, 2009)) (``Frontseating Service Valves'').
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In accordance with the legislative history of the Omnibus Trade and
Competitiveness Act of 1988, 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.\36\ 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.\37\ 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.
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\36\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) at 590.
\37\ See, e.g., Carbazole Violet Pigment 23 from India: Final
Results of the Expedited Five-year (Sunset) Review of the
Countervailing Duty Order, 75 FR 13257 (March 19, 2010), and
accompanying Issues and Decision Memorandum at pages 4-5; Certain
Cut-to-Length Carbon Quality Steel Plate from Indonesia: Final
Results of Expedited Sunset Review, 70 FR 45692 (August 8, 2005),
and accompanying Issues and Decision Memorandum at page 4;
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; Final Affirmative Countervailing Duty
Determination: Certain Hot-Rolled Carbon Steel Flat Products from
Thailand, 66 FR 50410 (October 3, 2001), and accompanying Issues and
Decision Memorandum at page 23.
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Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on the FOPs reported by Starbright for the POR. To calculate NV,
we multiplied the reported per-unit factor quantities by publicly
available Indian surrogate values (except as noted below). In selecting
the surrogate values, we considered the quality, specificity, public
availability, and contemporaneity of the data. As appropriate, we
adjusted input prices by including freight costs to render them
delivered prices. Specifically, we added to Indian import surrogate
values a surrogate freight cost using the shorter of the reported
distance from the domestic supplier to the factory or the distance from
the nearest seaport to the factory where appropriate (i.e., where the
sales terms for the ME inputs were not delivered to the factory). This
adjustment is in accordance with the decision of the Federal Circuit in
Sigma Corp. v. United States, 117 F. 3d 1401, 1408 (Fed. Cir. 1997).
For a detailed description of all surrogate values used for Starbright,
see the Surrogate Value Memorandum.
In past cases, it has been the Department's practice to value
various FOPs using import statistics of the primary selected surrogate
country from World Trade Atlas (``WTA''), as published by Global Trade
Information Services (``GTIS'').\38\ 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
[[Page 64264]]
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.\39\
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\38\ 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
(December 10, 2009)).
\39\ 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.
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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.
We further adjusted material input values to account for freight
costs incurred between the supplier and respondent. We used the freight
rates published by https://www.infobanc.com, ``The Great Indian Bazaar,
Gateway to Overseas Markets.'' The logistics section of the website
contains inland freight truck rates between many large Indian cities.
The truck freight rates are for the period August 2008 through July
2009. See Surrogate Value Memorandum.
Starbright made raw materials purchases from ME suppliers.
Therefore, in accordance with our practice outlined in Antidumping
Methodologies: Market Economy Inputs,\40\ where at least 33 percent of
an input is sourced from ME suppliers and purchased in an ME currency,
the Department used actual weighted-average purchase prices to value
these inputs.\41\ Where the quantity of the input purchased from ME
suppliers during the period is below 33 percent of the total volume of
purchases of the input during the period, the Department weight-
averaged the weighted average ME purchase price with an appropriate
surrogate value.\42\ See Antidumping Methodologies: Market Economy
Inputs. For a complete description of the factor values we used, see
the Surrogate Value Memorandum and the Starbright Preliminary Analysis
Memorandum.
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\40\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717-19 (October 19, 2006) (``Antidumping
Methodologies: Market Economy Inputs'').
\41\ For a detailed description of all actual values used for
market-economy inputs, see New-Tec Preliminary Analysis Memorandum
dated concurrently with this notice.
\42\ We did not accept all of Starbright's claimed market
economy purchases; however due to the proprietary nature of this
issue, please see further discussion in the Starbright Preliminary
Analysis Memorandum.
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Where we could not obtain publicly available information
contemporaneous with the POR with which to value FOPs, we adjusted the
surrogate values using, where appropriate, the Indian Wholesale Price
Index (``WPI'') as published in the International Financial Statistics
of the International Monetary Fund (``IMF'').
To value electricity, we used 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. We did not inflate this value because
utility rates represent current rates, as indicated by the effective
dates listed for each of the rates provided. See Surrogate Value
Memorandum.
To value water, we used the revised Maharashtra Industrial
Development Corporation (``MIDC'') water rates available at https://www.midcindia.com/water-supply. See Surrogate Value Memorandum.
The Department valued brokerage and handling using a price list of
export procedures necessary to export a standardized cargo of goods in
India. The price list is compiled based on a survey case study of the
procedural requirements for trading a standard shipment of goods by
ocean transport in India that is published in Doing Business 2010:
India, published by the World Bank. See Surrogate Value Memorandum.
To value steam coal, we used data obtained for grades A and B coal
reported in the December 2007 Coal India Limited Circular. See
Surrogate Value Memorandum.
To value warehousing, the Department used values obtained from the
Board of Jawaharlal Nehru Port Trust's Web site,\43\ a source
identified and used in the less-than-fair-value investigation of this
proceeding. See Certain New Pneumatic Off-the-Road Tires From the
People's Republic of China: Notice of Amended Final Affirmative
Determination of Sales at Less Than Fair Value and Antidumping Duty
Order, 73 FR 51624 (Sept. 4, 2008), and accompanying Issues and
Decision Memorandum at Comment 26. We applied these values to the
average number of days that Starbright's subject merchandise is in
inventory. See Surrogate Value Memorandum.
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\43\ https://www.jnport.gov.in/CMSPage.aspx?PageID=27.
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As a consequence of the decision of the Court of Appeals for the
Federal Circuit (``Federal Circuit'') in Dorbest Ltd. v. United States,
604 F. 3d 1363 (Fed. Cir. 2010), the Department is no longer relying on
the regression-based wage rate described in 19 CFR 351.408(c)(3). The
Department is continuing to evaluate options for determining labor
values in light of the recent Federal Circuit decision. For these
preliminary results, we have calculated an hourly wage rate to use in
valuing 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. To calculate the
hourly wage data, we used wage rate data reported by the International
Labor Organization (``ILO''). Because an industry-specific dataset
relevant to this proceeding exists within the Department's preferred
ILO source, we will be using industry-specific data to calculate a
surrogate wage rate for this review, in accordance with section
773(c)(1) of the Act.
For this review, the Department has calculated the wage rate using
a simple average of the data provided to the ILO under Sub-
Classification 25 of the ISIC-Revision \44\ 3 standard by countries
[[Page 64265]]
determined to be both economically comparable and significant producers
to the PRC. Specifically, the Department finds the two-digit
description under ISIC-Revision 3 (``Manufacture of Rubber and Plastics
Products'') to be the best available wage rate surrogate value on the
record because it is specific and derived from industries that produce
merchandise comparable to the subject merchandise. For further
information on the calculation of the wage rate, see the Surrogate
Value Memorandum.
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\44\ The ILO industry-specific data is reported according to the
International Standard Industrial Classification of all Economic
Activities (``ISIC'') code, which is maintained by the United
Nations Statistical Division and is periodically updated. These
updates are referred to as ``Revisions.'' The ILO, an organization
under the auspices of the United Nation, utilizes this
classification for reporting purposes. Currently, wage and earnings
data are available from the ILO under the following revisions: ISIC-
Rev.2, ISIC-Rev.3, and most recently, ISIC-Rev.4. The ISIC code
establishes a two-digit breakout for each manufacturing category,
and also often provides a three- or four-digit sub-category for each
two-digit category. Depending on the country, data may be reported
at either the two-, three- or four-digit subcategory. Sub-
Classification 25 of the ISIC-Revision 3 covers ``Manufacture of
Rubber and Plastics Products''.
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To value factory overhead, selling, general, and administrative
expenses, and profit, we used audited financial statements for the year
ending March 31, 2009, of Falcon Tyres Ltd., and TVS Srichakra Limited,
and the financial statement for the year ending December 31, 2008, of
Goodyear India Limited, Indian producers of comparable merchandise.\45\
For these preliminary results, the Department determined not to use
audited financial statements of Govind Rubber Limited because the
overwhelming amount of production is cycle tires and tubes, and auto
tires and tubes accounted for less than 1 percent of production. Based
upon that information, we find that Govind Rubber Limited does not
produce comparable merchandise. In addition, the Department has
declined to use audited financial statements of three other Indian
producers, JK Industries Ltd., MRF Tyres Ltd. and Balkrishna Industries
Limited, because there is evidence that each of these companies
received subsidies under programs previously found by the Department to
be countervailable.\46\ Nevertheless, the Department may consider other
publicly available financial statements for the final results, as
appropriate.
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\45\ See Surrogate Value Memorandum.
\46\ Specifically, JK Industries received subsidies under the
Sales Tax Deferred from Government of Karnataka program (see page 40
of its financial statement), found by the Department to be
countervailable. See Notice of Preliminary Results and Rescission,
in Part, of Countervailing Duty Administrative Review: Polyethylene
Terephthalate Film, Sheet, and Strip from India, 71 FR 45037 (August
8, 2006) (8/8/2006 PET Film). MRF Tyres received subsidies under the
Export Promotion Capital Goods Scheme (see page 61 of its financial
statement), found by the Department to be countervailable. See Final
Affirmative Countervailing Duty Determination: Bottle-Grade
Polyethylene Terephthalate (PET) Resin From India, 70 FR 13460
(March 21, 2005) (3/21/2005 PET Resin). Balkrishna Industries
received subsidies under the Duty Entitlement Passbook Scheme (see
page 32 of its financial statement), found by the Department to be
countervailable. See, e.g., 8/8/2006 PET Film and 3/21/2005 PET
Resin.
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In its original questionnaire response, Starbright stated that it
does not produce any by-products, with the exception of a small amount
of scrap tires. In a July 14, 2010, supplemental questionnaire, we
requested that Starbright explain, as requested in the original
questionnaire, the disposition of its by-products, and that it
demonstrate the quantities of scrap product produced during the POR. In
addition we asked Starbright to demonstrate that there is a commercial
value to its claimed scrap through either sale, or the reintroduction
into its production process. On August 17, 2010, Starbright provided a
worksheet purportedly showing scrap production for July 2008; however
it did not explain the worksheet or tie to any supporting documents. In
this same response, Starbright also stated that it does not sell or
reintroduce the scrap tires into production, but, if possible repaired
and returned them to inventory. Because Starbright clearly and
repeatedly stated that these scrap tires were neither sold nor re-used
in production, but simply placed in inventory, it has not demonstrated
that these scrap tires have any commercial value that would warrant a
by-product offset.
On September 1, 2010, the Department requested for the third time
that Starbright provide documentation to demonstrate the production,
sale, and/or reintroduction of its scrap tires by-product, whereupon,
on September 13, 2010, Starbright stated that due to time and staffing
constraints, it had not been able to prepare the requested information.
Because Starbright reported that it produced scrap tires but did not
report or demonstrate that it sold or reintroduced the scrap tires into
production and thus did not demonstrate either the production or
commercial value of any such scrap, we have not granted Starbright its
claimed by-product offset for tire scrap.
Adverse Facts Available
Sections 776(a)(1) and (2) of the Act provide that the Department
shall apply ``facts otherwise available'' if, inter alia, necessary
information is not on the record or 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.
Where the Department determines that a response to a request for
information does not comply with the request, section 782(d) of the Act
provides that the Department will so inform the party submitting the
response and will, to the extent practicable, provide that party the
opportunity to remedy or explain the deficiency. If the party fails to
remedy the deficiency within the applicable time limits and subject to
section 782(e) of the Act, the Department may disregard all or part of
the original and subsequent responses, as appropriate. Section 782(e)
of the Act provides that the Department ``shall not decline to consider
information that is submitted by an interested party and is necessary
to the determination but does not meet all applicable requirements
established by the administering authority'' if the information is
timely, can be verified, is not so incomplete that it cannot be used,
and if the interested party acted to the best of its ability in
providing the information. Where all of these conditions are met, the
statute requires the Department to use the information if it can do so
without undue difficulties.
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. Section 776(b) of the
Act also authorizes the Department to use as adverse facts available
(``AFA'') information derived from the petition, the final
determination, a previous administrative review, or other information
placed on the record.
For the reasons discussed below, we determine that, in accordance
with sections 776(a)(2) and 776(b) of the Act, the use of partial AFA
is appropriate for the preliminary results with respect to Starbright.
1. Products with Unreported Factors of Production
The original questionnaire states: ``if you sold some products/
models during the POR but did not produce them during the POR * * *
please contact the official in charge before preparing your response to
this section of the questionnaire.'' \47\ However, in filing its
[[Page 64266]]
questionnaire response, Starbright included several products in the
reported U.S. sales list in its response to section C of the
questionnaire for which it failed to provide any factors of production
in its response to section D.\48\ Furthermore, prior to submitting its
response, Starbright never contacted the Department regarding this
matter, despite the instructions in the questionnaire that it do so.
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\47\ See Letter from the Department to Starbright, ``Antidumping
Duty Administrative Review of Certain New Pneumatic Off-the-Road
Tires from the People's Republic of China: Questionnaire,'' dated
January 22, 2010, at page D-1 (``Questionnaire'').
\48\ See Starbright's April 27, 2010, sections C and D
questionnaire response.
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On July 1, 2010, the Department issued a supplemental questionnaire
in which it asked Starbright to explain the missing product control
numbers, and to provide FOPs for the product control numbers included
in the section C database but missing from the section D database. In
its August 2, 2010, response to the supplemental section C
questionnaire, Starbright explained that these products were sold
during the POR, but not produced during the POR. Starbright further
stated that it would provide the FOP information for these products in
its response to the section D supplemental questionnaire.\49\
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\49\ See Starbright's August 2, 2010, supplemental questionnaire
response at 5.
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On August 17, 2010 Starbright provided matching product control
numbers in its FOP database for the products that it reported were sold
during the POR but not produced during the POR. Starbright stated that
it had ``created similars'' for the product control numbers that did
not have matches in the FOP database, and that it had created a new
variable in the FOP database for the ``similar'' product control
number. Starbright also included a chart listing the control numbers
for the products sold to the United States, and the similar control
number created by Starbright.\50\ However, based on Starbright's
explanation that it sold these products during the POR but did not
produce these products during the POR, it was not clear whether
Starbright produced the products prior to the POR, or purchased the
products from another producer and how it derived the FOPs it reported
for these products (e.g., did they reflect prior year's production,
production of other products, or something else entirely). Thus, on
September 1, 2010, in a second section D supplemental questionnaire,
the Department asked that Starbright explain the origin of the
merchandise sold during the POR but not produced by Starbright during
the POR, and that Starbright provide evidence of its attempts to obtain
FOP information from the producer or the merchandise if the products
were purchased from another producer. The Department also explained
that, if Starbright produced these products prior to the POR, it should
provide the FOPs based on the prior production period (data it should
have from the period of the investigation).
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\50\ See Starbright's August 17, 2010, supplemental
questionnaire response at 1 and Exhibit SD-2.
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On September 13, 2010, Starbright argued that any request for FOPs
based on the prior year's production would require a revision to its
entire FOP database and refused to comply with the Department's request
for the FOP data from the prior production period. However, Starbright
failed to explain why having to report the prior year's FOPs for
products not produced in the current POR would require a revision to
the entire FOP database, since the prior year's reporting would only be
necessary for the products sold but not produced during the instant
POR. Starbright further contended that it was unable to provide the
requested FOP data in such a short period of time.\51\ Thus, Starbright
disregarded the clear instructions in the original questionnaire,
directing it to contact the Department if it had made sales of products
during the POR that it did not produce during the POR. Starbright also
refused to provide the information when requested by the Department in
a supplemental questionnaire regarding the nature of what it had
reported, thus rendering the data unusable. Moreover, Starbright
provided no rationale for its creation of ``similar'' product control
numbers for these products. Consequently, we preliminarily determine
that partial facts available is warranted because necessary information
is not on the record and because Starbright failed to provide requested
information by the applicable deadlines and impeded the proceeding by
not explaining the derivation of its reported ``similar'' FOPs. Section
776(a)(1), (a)(2)(B) and (a)(2)(C) of the Act. Moreover, by failing to
notify the Department of the existence of sales for products not
produced in the POR, despite the clear instruction in the
questionnaire, and by failing to provide usable information by the
appli
