Pure Magnesium From the People's Republic of China: Final Results of the 2008-2009 Antidumping Duty Administrative Review of the Antidumping Duty Order, 80791-80795 [2010-32329]

Download as PDF Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Notices • Assets and Liabilities. • Real Estate, Dependent Care, and Vehicles. • 6 Asset Sections (Interest Earning Accounts, Stocks and Mutual Funds, Mortgages, Value of Business, Rental Property, and Other Assets). • Medical Expenses and Utilization of Health Care (Adults and Children). • Work Related Expenses and Child Support Paid. • Child Well-Being. Wave 10 interviews will be conducted from September 1, 2011 through December 31, 2011. A 10-minute re-interview of 3,100 people is conducted at each wave to ensure the accuracy of responses. Reinterviews require an additional 1,553 burden hours in FY 2011. II. Method of Collection The SIPP is designed as a continuing series of national panels of interviewed households that are introduced every few years with each panel having durations of one to six years. All household members 15 years old or over are interviewed using regular proxyrespondent rules. During the 2008 panel, respondents are interviewed a total of 17 times (17 waves) at 4-month intervals making the SIPP a longitudinal survey. Sample people (all household members present at the time of the first interview) who move within the country and reasonably close to a SIPP primary sampling unit will be followed and interviewed at their new address. Individuals 15 years old or over who enter the household after Wave 1 will be interviewed; however, if these individuals move, they are not followed unless they happen to move along with a Wave 1 sample individual. mstockstill on DSKH9S0YB1PROD with NOTICES III. Data OMB Control Number: 0607–0944. Form Number: SIPP/CAPI Automated Instrument. Type of Review: Regular submission. Affected Public: Individuals or Households. Estimated Number of Respondents: 88,267 people per wave. Estimated Time per Response: 30 minutes per person on average. Estimated Total Annual Burden Hours: 133,953.1 Estimated Total Annual Cost: The only cost to respondents is their time. Respondent’s Obligation: Voluntary. Legal Authority: Title 13, United States Code 182. 1 (88,267 × .5 hr × 3 waves + 3,100 × .167 hr × 3 waves). VerDate Mar<15>2010 18:06 Dec 22, 2010 Jkt 223001 IV. Request for Comments Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency’s estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record. Dated: December 20, 2010. Glenna Mickelson, Management Analyst, Office of the Chief Information Officer. [FR Doc. 2010–32284 Filed 12–22–10; 8:45 am] BILLING CODE 3510–07–P 80791 Because neither TXR nor Pan Asia responded to the Department’s antidumping duty questionnaire, we determined that they were not entitled to a separate rate in the Preliminary Results and included them in the PRCWide Entity.2 We determined that TMI, the only responsive respondent in this proceeding, made sales in the United States at prices below normal value (‘‘NV’’). We invited interested parties to comment on our Preliminary Results. Based on our analysis of the comments received, we made changes to the margin calculations for TMI. The final dumping margin for this review is listed in the ‘‘Final Results Margins’’ section below. DATES: Effective Date: December 23, 2010. FOR FURTHER INFORMATION CONTACT: Laurel LaCivita, Sergio Balbontin, or Eve Wang, 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) 482–4243, (202) 482–6478, and (202) 482–6231, respectively. Background DEPARTMENT OF COMMERCE International Trade Administration [A–570–832] Pure Magnesium From the People’s Republic of China: Final Results of the 2008–2009 Antidumping Duty Administrative Review of the Antidumping Duty Order Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On June 18, 2010, the Department of Commerce (‘‘Department’’) published in the Federal Register the preliminary results in the 2008–2009 antidumping duty administrative review of pure magnesium from the People’s Republic of China (‘‘PRC’’).1 The period of review (‘‘POR’’) is May 1, 2008, through April 30, 2009. We initiated an administrative review of the antidumping order on pure magnesium from the PRC with respect to Tianjin Magnesium International Co., Ltd. (‘‘TMI’’), Tianjin Xianghaiqi Resources Import & Export Trade Co., Ltd. (‘‘TXR’’), and Pan Asia Magnesium Co., Ltd. (‘‘Pan Asia’’). AGENCY: 1 See Pure Magnesium from the People’s Republic of China: Preliminary Results of the 2008–2009 Antidumping Duty Administrative Review, 75 FR 34689 (June 18, 2010) (‘‘Preliminary Results’’). PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 On June 18, 2010, the Department published its Preliminary Results of the antidumping duty administrative review of pure magnesium from the PRC.3 On July 8, 2010, U.S. Magnesium LLC (‘‘Petitioner’’) and TMI submitted publicly available surrogate value data to value TMI’s factors of production. On July 19, 2010, both Petitioner and TMI submitted rebuttal comments concerning valuation of factors of production. On July 14, 2010, the Department released additional data related to its reconsideration of its valuation of the labor wage rate in this review in light of a decision in Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010), and afforded interested parties an opportunity to comment on the narrow issue of the new labor wage data.4 In addition, when it appeared that TMI did not understand that it had the opportunity to provide rebuttal information concerning the new wage data, the Department granted TMI another opportunity to comment and provide rebuttal factual comments.5 On 2 See Preliminary Results, at 75 FR at 34692. 3 Id. 4 See Memorandum to the File, ‘‘Wage Data,’’ dated of July 14, 2010. 5 See Memorandum to the File, ‘‘Treatment of Alleged New Information in U.S. Magnesium’s Case Brief,’’ dated of August 23, 2010. E:\FR\FM\23DEN1.SGM 23DEN1 80792 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES July 15, 2010, the Department noted an error in the currency-conversion calculation of the hourly wage-rate data for El Salvador and released corrected data to the parties.6 We received case briefs from Petitioner and TMI on July 29, 2010, and Petitioner’s rebuttal briefs on August 3, 2010. We rejected TMI’s rebuttal brief because the brief was untimely filed.7 On August 9, 2010, TMI alleged that Petitioner’s case brief contained new factual information and requested the Department to reject it. On August 23, 2010, the Department declined to reject the information because it determined that the information at issue did not constitute new factual information within the meaning of 19 CFR 351.301(c)(3).8 Following the time period for case and rebuttal briefs, the Department noted that it inadvertently omitted the underlying data used in making its preliminary determination of the surrogate value for truck freight, and it afforded parties opportunities to comment on and rebut the data concerning truck freight.9 On August 5, 2010, the Department requested all interested parties to provide comments on the Department’s recent determination in the 2008–2009 administrative review of the antidumping duty order on frozen warmwater shrimp from the Socialist Republic of Vietnam that the wage rate reported by the International Labor Organization for Honduras was inaccurate.10 In response, Petitioner filed its comments on August 16, 2010, and TMI provided comments on August 26, 2010. On August 30, 2010, Petitioner submitted rebuttal comments concerning wage rate. The Department held a hearing on September 1, 2010.11 On October 7, 2010, the Department extended the deadline for the final results of review to December 15, 2010.12 On November 10, 2010, the Department re-opened the record to place additional industry-specific wagerate information on the record for consideration in the final results, afforded parties an opportunity to provide rebuttal factual information, and requested parties to comment on the industry-specific wage-rate data placed on the record by the Department. On November 15, 2010, TMI submitted factual information on wage rate. On November 19, 2010, TMI submitted comments on the Department’s industry-specific wage-rate data. Petitioner filed rebuttal comments to TMI’s November 19, 2010, wage rate comments on November 24, 2010. 6 See Memorandum to the File, ‘‘Wage Rate Calculation—Error in Currency Conversion of the Hourly Wage Rate for El Salvador,’’ dated of July 15, 2010. 7 See Memorandum to the File, ‘‘Administrative Review of Pure Magnesium from the People’s Republic of China (‘PRC’): Return of Untimely Submission of TMI’s August 5, 2010 Rebuttal Brief,’’ dated of August 23, 2010. 8 See Memorandum to the File, ‘‘Treatment of Alleged New Information in U.S. Magnesium’s Case Brief,’’ dated August 23, 2010. 9 Id. at 3; see Memorandum to the File, ‘‘Telephone Conversation Concerning Deadlines for the Submission of New Factual Information,’’ dated of August 24, 2010. 10 See Memorandum to the File, ‘‘Honduras Data on Labor Wage Rate,’’ dated August 5, 2010. 11 Petitioner and TMI requested a hearing for issues raised in the case and rebuttal briefs on June 18, 2010, and July 14, 2010, respectively. Verification As provided in section 782(i) of the Tariff Act of 1930, as amended (‘‘the Act’’), we verified the information submitted by TMI for use in our final results of review.13 We used standard verification procedures, including VerDate Mar<15>2010 18:06 Dec 22, 2010 Jkt 223001 Analysis of Comments Received All issues raised in the case and rebuttal briefs filed by parties in this review are addressed in the Memorandum from Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, ‘‘Pure Magnesium from the People’s Republic of China: Issues and Decision Memorandum for the Final Results of the 2008–2009 Administrative Review,’’ dated December 15, 2010 (‘‘Issues and Decision Memorandum’’), which is hereby adopted by this notice. A list of the issues that parties raised and to which we responded in the Issues and Decision Memorandum follows as an appendix to this notice. The Issues and Decision Memorandum is a public document and is on file in the Central Records Unit (‘‘CRU’’), Main Commerce Building, Room 7046, and is also accessible on the Web at https:// ia.ita.doc.gov/frn. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content. 12 See Pure Magnesium from the People’s Republic of China; Extension of Time for the Final Results of the Antidumping Duty Administrative Review, 75 FR 63440 (October 15, 2010). 13 See Memorandum to the File, ‘‘Antidumping Duty Administrative Review of Pure Magnesium from the People’s Republic of China: Verification of the Sales and Factors of Production (‘FOP’) of Tianjin Magnesium Industries,’’ dated of June 7, 2010, on the record of this review CRU, Room 7046 of the main Department building. PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 examination of relevant accounting and production records, as well as original source documents provided by TMI. Period of Review The POR is May 1, 2008, through April 30, 2009. Scope of the Order Merchandise covered by the order is pure magnesium regardless of chemistry, form or size, unless expressly excluded from the scope of the order. Pure magnesium is a metal or alloy containing by weight primarily the element magnesium and produced by decomposing raw materials into magnesium metal. Pure primary magnesium is used primarily as a chemical in the aluminum alloying, desulfurization, and chemical reduction industries. In addition, pure magnesium is used as an input in producing magnesium alloy. Pure magnesium encompasses products (including, but not limited to, butt ends, stubs, crowns and crystals) with the following primary magnesium contents: (1) Products that contain at least 99.95% primary magnesium, by weight (generally referred to as ‘‘ultra pure’’ magnesium); (2) Products that contain less than 99.95% but not less than 99.8% primary magnesium, by weight (generally referred to as ‘‘pure’’ magnesium); and (3) Products that contain 50% or greater, but less than 99.8% primary magnesium, by weight, and that do not conform to ASTM specifications for alloy magnesium (generally referred to as ‘‘off-specification pure’’ magnesium). ‘‘Off-specification pure’’ magnesium is pure primary magnesium containing magnesium scrap, secondary magnesium, oxidized magnesium or impurities (whether or not intentionally added) that cause the primary magnesium content to fall below 99.8% by weight. It generally does not contain, individually or in combination, 1.5% or more, by weight, of the following alloying elements: aluminum, manganese, zinc, silicon, thorium, zirconium and rare earths. Excluded from the scope of the order are alloy primary magnesium (that meets specifications for alloy magnesium), primary magnesium anodes, granular primary magnesium (including turnings, chips and powder) having a maximum physical dimension (i.e., length or diameter) of one inch or less, secondary magnesium (which has pure primary magnesium content of less than 50% by weight), and remelted magnesium whose pure primary magnesium content is less than 50% by weight. E:\FR\FM\23DEN1.SGM 23DEN1 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES Pure magnesium products covered by the order are currently classifiable under Harmonized Tariff Schedule of the United States (‘‘HTSUS’’) subheadings 8104.11.00, 8104.19.00, 8104.20.00, 8104.30.00, 8104.90.00, 3824.90.11, 3824.90.19 and 9817.00.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope is dispositive. Use of Facts Available and Adverse Facts Available (‘‘AFA’’) Section 776(a) of the Act provides that the Department shall apply ‘‘facts otherwise available’’ if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act. 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 supplied 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. Such an adverse inference may include reliance on information derived from the petition, VerDate Mar<15>2010 18:06 Dec 22, 2010 Jkt 223001 the final determination, a previous administrative review, or other information placed on the record. Application of Total AFA to the PRC– Wide Entity Because TXR and Pan Asia did not respond to the Department’s antidumping duty questionnaire, we preliminarily determined that these companies withheld information requested by the Department in accordance with sections 776(a)(2)(A) and (B) of the Act.14 Furthermore, by not providing the requested information, these companies significantly impeded the proceeding in accordance with section 776(a)(2)(C) of the Act. Because there is no information on the record demonstrating TXR’s or Pan Asia’s eligibility for a separate rate in accordance with section 776(a) of the Act, the Department has treated these companies as part of the PRC-Wide Entity. Further, because these parties did not respond to the Department’s antidumping questionnaire and are part of the PRC-Wide Entity, the Department is basing the dumping margin of the PRC-Wide Entity on the facts otherwise available on the record. No other party provided any additional information regarding the PRC-Wide Entity. Furthermore, the PRC-Wide Entity’s refusal to provide the requested information constitutes circumstances under which it is reasonable to conclude that less than full cooperation has been shown.15 Hence, pursuant to section 776(b) of the Act, the Department has determined that, when selecting from among the facts otherwise available, an adverse inference is warranted with respect to the PRC-Wide Entity. Selection of AFA Rates In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any information placed on the record. The Department’s practice is to 14 See Preliminary Results, 75 FR at 34697. Nippon Steel Corporation v. United States, 337 F.3d 1373, 1383 (Fed. Cir. 2003), where the Court of Appeals for the Federal Circuit (‘‘CAFC’’) provided an explanation of the ‘‘failure to act to the best of its ability’’ standard noting that the Department need not show intentional conduct existed on the part of the respondent, but merely that a ‘‘failure to cooperate to the best of a respondent’s ability’’ existed (i.e., information was not provided ‘‘under circumstances in which it is reasonable to conclude that less than full cooperation has been shown’’). 15 See PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 80793 select an AFA rate that is sufficiently adverse ‘‘as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner’’ and that ensures ‘‘that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.16 Specifically, the Department’s practice in reviews, in selecting a rate as total AFA, is to use the highest rate on the record of the proceeding which, to the extent practicable, can be corroborated (assuming the rate is based on secondary information).17 The Court of International Trade (‘‘CIT’’) and the CAFC have affirmed decisions to select the highest margin from any prior segment of the proceeding as the AFA rate on numerous occasions.18 Therefore, as AFA, the Department has assigned the PRC-Wide Entity a dumping margin of 111.73 percent. This margin is the highest calculated rate for a respondent on the record of any segment of the proceeding.19 Corroboration of Secondary Information Section 776(c) of the Act provides that, when the Department relies on 16 See Notice of Final Determination of Sales at Less than Fair Value: Static Random Access Memory Semiconductors From Taiwan, 63 FR 8909, 8911(February 23, 1998); see also Brake Rotors From the People’s Republic of China: Final Results and Partial Rescission of the Seventh Administrative Review; Final Results of the Eleventh New Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the Statement of Administrative Action accompany the Uruguay Round Agreement Act, H.R. Rep. No. 316, 103d Cong., 2d Sess. 870 (‘‘SAA’’). 17 See Glycine from the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review, 74 FR 15930, 15934 (April 8, 2009), unchanged in Glycine From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT August 10, 2009) (‘‘Commerce may, of course, begin its total AFA selection process by defaulting to the highest rate in any segment of the proceeding, but that selection must then be corroborated, to the extent practicable.’’). 18 See, e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (Ct. Int’l Trade 2004) (affirming a 73. 55 percent total AFA rate, the highest available dumping margin from a different respondent in the investigation); Kompass Food Trading International v. United States, 24 CIT 678, 683–84 (2000) (affirming a 51. 16 percent total AFA rate, the highest available dumping margin from a different, fully cooperative respondent); and Shanghai Taoen International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 1339, 1348 (Ct. Int’l Trade 2005) (affirming a 223. 01 percent total AFA rate, the highest available dumping margin from a different respondent in a previous administrative review). 19 See Pure Magnesium from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 2008) (‘‘Pure Magnesium 06–07Final Results’’). E:\FR\FM\23DEN1.SGM 23DEN1 80794 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Notices secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.20 Corroborate means that the Department will satisfy itself that the secondary information to be used has probative value.21 To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used.22 Independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation.23 As discussed above, the 111.73 percent AFA margin is the highest rate on the record of any segment of this antidumping duty order. This rate was calculated for a cooperative respondent in the 2006–2007 administrative review of this order. This rate was recently applied to a separate rate company as well as the PRC-Wide Entity in the immediately preceding administrative review. No party has provided information related to the PRC-Wide Entity. During the 2006–2007 administrative review, this margin was calculated using data from a cooperative respondent. The Federal Circuit has held that the Department ‘‘is permitted 20 See SAA. id. 22 See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan: Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6, 1996), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews and Termination in Part, 62 FR 11825 (March 13, 1997). 23 See Notice of Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators from Japan, 68 FR 35627, 35629 (June 16, 2003), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: High and Ultra High Voltage Ceramic Station Post Insulators from Japan, 68 FR 62560 (November 5, 2003); and Notice of Final Determination of Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181, 12183–84 (March 11, 2005). mstockstill on DSKH9S0YB1PROD with NOTICES 21 See VerDate Mar<15>2010 18:06 Dec 22, 2010 Jkt 223001 to use a ‘common sense inference that the highest prior margin is most probative evidence of current margins because, if it were not so, the importer, knowing of the rule, would have produced current information showing the margin to be less.’’’ 24 The Federal Circuit has held that ‘‘{t}he presumption that a prior dumping margin imposed against an exporter in an earlier administrative review continues to be valid if the exporter fails to cooperate in a subsequent administrative review.’’ 25 Here, the PRC-Wide Entity failed to cooperate or demonstrate that the margin applied is no longer valid. The Department continues to find that the 111.73 percent margin is probative, as it is both reliable and relevant.26 The rate is reliable as it was calculated for a cooperative mandatory respondent in a prior segment of this proceeding. The rate is relevant because, as discussed above, no party overcame the courtaffirmed presumption that a rate applied to an exporter remains valid unless that exporter demonstrates that facts exist to rebut that presumption. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in Fresh Cut Flowers from Mexico: Final Results of Antidumping Administrative Review, 61 FR 6812 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company’s uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited.27 None of these unusual circumstances are present in this proceeding. Accordingly, we determine that the highest rate determined in any segment of this administrative proceeding (i.e., 111.73 percent) is corroborated (i.e., it has probative value) within the meaning of section 776 (c) of the Act. Changes Since the Preliminary Results Based on an analysis of the comments received, the Department has made certain changes in TMI’s margin calculation. For the final results, the 24 KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (quoting Rhome Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990)). 25 Id. 26 See Preliminary Results, at 75 FR at 34697. 27 See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (the Department will not use a margin that has been judicially invalidated). PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 Department has made the following changes: • We based our determination of the surrogate financial ratios on the financial statements of Madras Aluminum Company Ltd. (‘‘MALCO’’) rather than Sudal Industries Ltd. See Comment 2 of the accompanying Issues and Decision Memorandum. • Consistent with our current practice, we revised the surrogate value for direct labor, indirect labor and packing labor to account for industryspecific wage rates. Additionally, for these final results we made corrections to the industry-specific labor calculation that we originally released to the parties on November 10, 2010. See Comment 8 of the accompanying Issues and Decision Memorandum. • We revised the calculation of the surrogate value for dolomite to reflect the average of the value for dolomite reflected in the April 1, 2008–March 31, 2009 financial statements of Madras Cements Ltd., Tata Sponge Iron Ltd., Sagar Cements Limited, and Bhushan Steel Limited. See Comment 9 of the accompanying Issues and Decision Memorandum. • We revised our calculation of brokerage and handling to divide the brokerage and handling costs reported in Doing Business 2010—India by the publicly available value for the average maximum cargo load per container of 21,727 kgs. See Comment 12 of the accompanying Issues and Decision Memorandum. • We revised our calculation of the surrogate value for the inputs of magnesium metal waste and magnesium waste to use the categories of 8104.20 and 8104.11, respectively. See Comment 13 of the accompanying Issues and Decision Memorandum. • We revised the surrogate value for plastic bags, steel bands, and plastic bands. See Comment 14 of the accompanying Issues and Decision Memorandum. Final Results Margin The weighted-average dumping margins for the final results are as follows: Exporter Tianjin Magnesium International Co. Ltd ............. PRC-Wide Entity ** ........... Weightedaverage margin (percentage) 0.73 111.73 ** Pan Asia and TXR are part of this PRCWide Entity. Assessment Rates Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), the E:\FR\FM\23DEN1.SGM 23DEN1 Federal Register / Vol. 75, No. 246 / Thursday, December 23, 2010 / Notices mstockstill on DSKH9S0YB1PROD with NOTICES Department will determine, and U.S. Customs and Border Protection (‘‘CBP’’) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. For assessment purposes, we calculated importer (or customer)-specific assessment rates for merchandise subject to this review. Where appropriate, we calculated an ad valorem rate for each importer (or customer) by dividing the total dumping margins for reviewed sales to that party by the total entered values associated with those transactions. For dutyassessment rates calculated on this basis, we will direct CBP to assess the resulting ad valorem rate against the entered customs values for the subject merchandise. Where appropriate, we calculated a per-unit rate for each importer (or customer) by dividing the total dumping margins for reviewed sales to that party by the total sales quantity associated with those transactions. For duty-assessment rates calculated on this basis, we will direct CBP to assess the resulting per-unit rate against the entered quantity of the subject merchandise. Where an importer (or customer)-specific assessment rate is de minimis (i.e., less than 0.50 percent), the Department will instruct CBP to assess that importer (or customer’s) entries of subject merchandise without regard to antidumping duties, in accordance with 19 CFR 351.106(c)(2). The Department intends to issue assessment instructions to CBP 15 days after the date of publication of these final results of review. 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 TMI, the cash deposit rate will be the rate listed above; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 111.73 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non- VerDate Mar<15>2010 18:06 Dec 22, 2010 Jkt 223001 PRC exporter. The deposit requirements shall remain in effect until further notice. Notification to Importers This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of the antidumping duties occurred and the subsequent assessment of double antidumping duties. Notification to Interested Parties This notice also serves as a reminder to parties subject to administrative protective orders (‘‘APOs’’) of their responsibility concerning the return or destruction of proprietary information disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction. Disclosure We will disclose the calculations performed within five days of the date of publication of this notice to parties in this proceeding in accordance with 19 CFR 351.224(b). We are issuing and publishing the final results and notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: December 15, 2010. Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration. Appendix I Comment 1: Whether the Department Should Apply Total AFA to TMI Comment 2: Selection of Surrogate Financial Statements Comment 3: Whether the Department Should Calculate the Surrogate Value for Labor Using Multiple Surrogate Countries or a Single Country, India Comment 4: Whether the Department Should Expand the List of Economically Comparable Countries Comment 5: Whether the Department’s Wage Data Memorandum Contained Data Errors Comment 6: Whether To Use ILO Wage Data Contemporaneous With the POR Rather Than Using Pre-POR Data and Adjusting PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 80795 for Inflation as Reported in the Wage Rate Memorandum Comment 7: Whether the Department Should Exclude Indian Data from the Wage Rate Calculation Comment 8: Whether the Countries Used to Determine the Wage Rate in this Case Are ‘‘Significant Producers of Comparable Merchandise’’ Comment 9: Valuation of Dolomite Comment 10: Valuation of Flux Comment 11: The Source of the Surrogate Value for Foreign Inland Freight Comment 12: The Surrogate Value for Brokerage and Handling Comment 13: The Appropriate HTS Classification for Magnesium Waste/Scrap (‘‘MGS’’) and Magnesium Metal Waste/ Scrap (‘‘ALLOYS’’) Comment 14: The Per-Unit Basis for Plastic Bags, Steel Bands, and Plastic Bands [FR Doc. 2010–32329 Filed 12–22–10; 8:45 am] BILLING CODE P DEPARTMENT OF COMMERCE International Trade Administration [A–552–801] Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Extension of Time Limit for the Final Results of the Sixth Antidumping Duty Administrative and New Shipper Reviews Import Administration, International Trade Administration, Department of Commerce. DATES: Effective Date: December 23, 2010. AGENCY: FOR FURTHER INFORMATION CONTACT: Emeka Chukwudebe or Javier Barrientos, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482–0219 or (202) 482–2243, respectively. Background On September 15, 2010, the Department of Commerce (‘‘Department’’) published in the Federal Register the Preliminary Results of the sixth administrative and new shipper reviews of certain frozen fish fillets from the Socialist Republic of Vietnam covering the period August 1, 2008, through July 31, 2009.1 Subsequent to the publication of the Preliminary Results, the Department extended the 1 See Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Preliminary Results and Partial Rescission of the Sixth Antidumping Duty Administrative Review and Sixth New Shipper Review, 75 FR 56062 (September 15, 2010) (‘‘Preliminary Results’’). E:\FR\FM\23DEN1.SGM 23DEN1

Agencies

[Federal Register Volume 75, Number 246 (Thursday, December 23, 2010)]
[Notices]
[Pages 80791-80795]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32329]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-832]


Pure Magnesium From the People's Republic of China: Final Results 
of the 2008-2009 Antidumping Duty Administrative Review of the 
Antidumping Duty Order

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

SUMMARY: On June 18, 2010, the Department of Commerce (``Department'') 
published in the Federal Register the preliminary results in the 2008-
2009 antidumping duty administrative review of pure magnesium from the 
People's Republic of China (``PRC'').\1\ The period of review (``POR'') 
is May 1, 2008, through April 30, 2009. We initiated an administrative 
review of the antidumping order on pure magnesium from the PRC with 
respect to Tianjin Magnesium International Co., Ltd. (``TMI''), Tianjin 
Xianghaiqi Resources Import & Export Trade Co., Ltd. (``TXR''), and Pan 
Asia Magnesium Co., Ltd. (``Pan Asia''). Because neither TXR nor Pan 
Asia responded to the Department's antidumping duty questionnaire, we 
determined that they were not entitled to a separate rate in the 
Preliminary Results and included them in the PRC-Wide Entity.\2\ We 
determined that TMI, the only responsive respondent in this proceeding, 
made sales in the United States at prices below normal value (``NV''). 
We invited interested parties to comment on our Preliminary Results. 
Based on our analysis of the comments received, we made changes to the 
margin calculations for TMI. The final dumping margin for this review 
is listed in the ``Final Results Margins'' section below.
---------------------------------------------------------------------------

    \1\ See Pure Magnesium from the People's Republic of China: 
Preliminary Results of the 2008-2009 Antidumping Duty Administrative 
Review, 75 FR 34689 (June 18, 2010) (``Preliminary Results'').
    \2\ See Preliminary Results, at 75 FR at 34692.

---------------------------------------------------------------------------
DATES: Effective Date: December 23, 2010.

FOR FURTHER INFORMATION CONTACT: Laurel LaCivita, Sergio Balbontin, or 
Eve Wang, 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) 482-4243, (202) 482-6478, and (202) 482-6231, respectively.

Background

    On June 18, 2010, the Department published its Preliminary Results 
of the antidumping duty administrative review of pure magnesium from 
the PRC.\3\
---------------------------------------------------------------------------

    \3\ Id.
---------------------------------------------------------------------------

    On July 8, 2010, U.S. Magnesium LLC (``Petitioner'') and TMI 
submitted publicly available surrogate value data to value TMI's 
factors of production. On July 19, 2010, both Petitioner and TMI 
submitted rebuttal comments concerning valuation of factors of 
production.
    On July 14, 2010, the Department released additional data related 
to its reconsideration of its valuation of the labor wage rate in this 
review in light of a decision in Dorbest Ltd. v. United States, 604 
F.3d 1363 (Fed. Cir. 2010), and afforded interested parties an 
opportunity to comment on the narrow issue of the new labor wage 
data.\4\ In addition, when it appeared that TMI did not understand that 
it had the opportunity to provide rebuttal information concerning the 
new wage data, the Department granted TMI another opportunity to 
comment and provide rebuttal factual comments.\5\ On

[[Page 80792]]

July 15, 2010, the Department noted an error in the currency-conversion 
calculation of the hourly wage-rate data for El Salvador and released 
corrected data to the parties.\6\
---------------------------------------------------------------------------

    \4\ See Memorandum to the File, ``Wage Data,'' dated of July 14, 
2010.
    \5\ See Memorandum to the File, ``Treatment of Alleged New 
Information in U.S. Magnesium's Case Brief,'' dated of August 23, 
2010.
    \6\ See Memorandum to the File, ``Wage Rate Calculation--Error 
in Currency Conversion of the Hourly Wage Rate for El Salvador,'' 
dated of July 15, 2010.
---------------------------------------------------------------------------

    We received case briefs from Petitioner and TMI on July 29, 2010, 
and Petitioner's rebuttal briefs on August 3, 2010. We rejected TMI's 
rebuttal brief because the brief was untimely filed.\7\ On August 9, 
2010, TMI alleged that Petitioner's case brief contained new factual 
information and requested the Department to reject it. On August 23, 
2010, the Department declined to reject the information because it 
determined that the information at issue did not constitute new factual 
information within the meaning of 19 CFR 351.301(c)(3).\8\ Following 
the time period for case and rebuttal briefs, the Department noted that 
it inadvertently omitted the underlying data used in making its 
preliminary determination of the surrogate value for truck freight, and 
it afforded parties opportunities to comment on and rebut the data 
concerning truck freight.\9\
---------------------------------------------------------------------------

    \7\ See Memorandum to the File, ``Administrative Review of Pure 
Magnesium from the People's Republic of China (`PRC'): Return of 
Untimely Submission of TMI's August 5, 2010 Rebuttal Brief,'' dated 
of August 23, 2010.
    \8\ See Memorandum to the File, ``Treatment of Alleged New 
Information in U.S. Magnesium's Case Brief,'' dated August 23, 2010.
    \9\ Id. at 3; see Memorandum to the File, ``Telephone 
Conversation Concerning Deadlines for the Submission of New Factual 
Information,'' dated of August 24, 2010.
---------------------------------------------------------------------------

    On August 5, 2010, the Department requested all interested parties 
to provide comments on the Department's recent determination in the 
2008-2009 administrative review of the antidumping duty order on frozen 
warmwater shrimp from the Socialist Republic of Vietnam that the wage 
rate reported by the International Labor Organization for Honduras was 
inaccurate.\10\ In response, Petitioner filed its comments on August 
16, 2010, and TMI provided comments on August 26, 2010. On August 30, 
2010, Petitioner submitted rebuttal comments concerning wage rate.
---------------------------------------------------------------------------

    \10\ See Memorandum to the File, ``Honduras Data on Labor Wage 
Rate,'' dated August 5, 2010.
---------------------------------------------------------------------------

    The Department held a hearing on September 1, 2010.\11\ On October 
7, 2010, the Department extended the deadline for the final results of 
review to December 15, 2010.\12\
---------------------------------------------------------------------------

    \11\ Petitioner and TMI requested a hearing for issues raised in 
the case and rebuttal briefs on June 18, 2010, and July 14, 2010, 
respectively.
    \12\ See Pure Magnesium from the People's Republic of China; 
Extension of Time for the Final Results of the Antidumping Duty 
Administrative Review, 75 FR 63440 (October 15, 2010).
---------------------------------------------------------------------------

    On November 10, 2010, the Department re-opened the record to place 
additional industry-specific wage-rate information on the record for 
consideration in the final results, afforded parties an opportunity to 
provide rebuttal factual information, and requested parties to comment 
on the industry-specific wage-rate data placed on the record by the 
Department. On November 15, 2010, TMI submitted factual information on 
wage rate. On November 19, 2010, TMI submitted comments on the 
Department's industry-specific wage-rate data. Petitioner filed 
rebuttal comments to TMI's November 19, 2010, wage rate comments on 
November 24, 2010.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs filed by parties 
in this review are addressed in the Memorandum from Christian Marsh, 
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for 
Import Administration, ``Pure Magnesium from the People's Republic of 
China: Issues and Decision Memorandum for the Final Results of the 
2008-2009 Administrative Review,'' dated December 15, 2010 (``Issues 
and Decision Memorandum''), which is hereby adopted by this notice. A 
list of the issues that parties raised and to which we responded in the 
Issues and Decision Memorandum follows as an appendix to this notice. 
The Issues and Decision Memorandum is a public document and is on file 
in the Central Records Unit (``CRU''), Main Commerce Building, Room 
7046, and is also accessible on the Web at https://ia.ita.doc.gov/frn. 
The paper copy and electronic version of the Issues and Decision 
Memorandum are identical in content.

Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended 
(``the Act''), we verified the information submitted by TMI for use in 
our final results of review.\13\ We used standard verification 
procedures, including examination of relevant accounting and production 
records, as well as original source documents provided by TMI.
---------------------------------------------------------------------------

    \13\ See Memorandum to the File, ``Antidumping Duty 
Administrative Review of Pure Magnesium from the People's Republic 
of China: Verification of the Sales and Factors of Production 
(`FOP') of Tianjin Magnesium Industries,'' dated of June 7, 2010, on 
the record of this review CRU, Room 7046 of the main Department 
building.
---------------------------------------------------------------------------

Period of Review

    The POR is May 1, 2008, through April 30, 2009.

Scope of the Order

    Merchandise covered by the order is pure magnesium regardless of 
chemistry, form or size, unless expressly excluded from the scope of 
the order. Pure magnesium is a metal or alloy containing by weight 
primarily the element magnesium and produced by decomposing raw 
materials into magnesium metal. Pure primary magnesium is used 
primarily as a chemical in the aluminum alloying, desulfurization, and 
chemical reduction industries. In addition, pure magnesium is used as 
an input in producing magnesium alloy. Pure magnesium encompasses 
products (including, but not limited to, butt ends, stubs, crowns and 
crystals) with the following primary magnesium contents:
    (1) Products that contain at least 99.95% primary magnesium, by 
weight (generally referred to as ``ultra pure'' magnesium);
    (2) Products that contain less than 99.95% but not less than 99.8% 
primary magnesium, by weight (generally referred to as ``pure'' 
magnesium); and
    (3) Products that contain 50% or greater, but less than 99.8% 
primary magnesium, by weight, and that do not conform to ASTM 
specifications for alloy magnesium (generally referred to as ``off-
specification pure'' magnesium).
    ``Off-specification pure'' magnesium is pure primary magnesium 
containing magnesium scrap, secondary magnesium, oxidized magnesium or 
impurities (whether or not intentionally added) that cause the primary 
magnesium content to fall below 99.8% by weight. It generally does not 
contain, individually or in combination, 1.5% or more, by weight, of 
the following alloying elements: aluminum, manganese, zinc, silicon, 
thorium, zirconium and rare earths.
    Excluded from the scope of the order are alloy primary magnesium 
(that meets specifications for alloy magnesium), primary magnesium 
anodes, granular primary magnesium (including turnings, chips and 
powder) having a maximum physical dimension (i.e., length or diameter) 
of one inch or less, secondary magnesium (which has pure primary 
magnesium content of less than 50% by weight), and remelted magnesium 
whose pure primary magnesium content is less than 50% by weight.

[[Page 80793]]

    Pure magnesium products covered by the order are currently 
classifiable under Harmonized Tariff Schedule of the United States 
(``HTSUS'') subheadings 8104.11.00, 8104.19.00, 8104.20.00, 8104.30.00, 
8104.90.00, 3824.90.11, 3824.90.19 and 9817.00.90. Although the HTSUS 
subheadings are provided for convenience and customs purposes, our 
written description of the scope is dispositive.

Use of Facts Available and Adverse Facts Available (``AFA'')

    Section 776(a) of the Act provides that the Department shall apply 
``facts otherwise available'' if (1) necessary information is not on 
the record, or (2) an interested party or any other person (A) 
withholds information that has been requested, (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act, (C) significantly impedes a proceeding, or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    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 
supplied 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. Such an adverse 
inference may include reliance on information derived from the 
petition, the final determination, a previous administrative review, or 
other information placed on the record.

Application of Total AFA to the PRC-Wide Entity

    Because TXR and Pan Asia did not respond to the Department's 
antidumping duty questionnaire, we preliminarily determined that these 
companies withheld information requested by the Department in 
accordance with sections 776(a)(2)(A) and (B) of the Act.\14\ 
Furthermore, by not providing the requested information, these 
companies significantly impeded the proceeding in accordance with 
section 776(a)(2)(C) of the Act.
---------------------------------------------------------------------------

    \14\ See Preliminary Results, 75 FR at 34697.
---------------------------------------------------------------------------

    Because there is no information on the record demonstrating TXR's 
or Pan Asia's eligibility for a separate rate in accordance with 
section 776(a) of the Act, the Department has treated these companies 
as part of the PRC-Wide Entity. Further, because these parties did not 
respond to the Department's antidumping questionnaire and are part of 
the PRC-Wide Entity, the Department is basing the dumping margin of the 
PRC-Wide Entity on the facts otherwise available on the record. No 
other party provided any additional information regarding the PRC-Wide 
Entity. Furthermore, the PRC-Wide Entity's refusal to provide the 
requested information constitutes circumstances under which it is 
reasonable to conclude that less than full cooperation has been 
shown.\15\ Hence, pursuant to section 776(b) of the Act, the Department 
has determined that, when selecting from among the facts otherwise 
available, an adverse inference is warranted with respect to the PRC-
Wide Entity.
---------------------------------------------------------------------------

    \15\ See Nippon Steel Corporation v. United States, 337 F.3d 
1373, 1383 (Fed. Cir. 2003), where the Court of Appeals for the 
Federal Circuit (``CAFC'') provided an explanation of the ``failure 
to act to the best of its ability'' standard noting that the 
Department need not show intentional conduct existed on the part of 
the respondent, but merely that a ``failure to cooperate to the best 
of a respondent's ability'' existed (i.e., information was not 
provided ``under circumstances in which it is reasonable to conclude 
that less than full cooperation has been shown'').
---------------------------------------------------------------------------

Selection of AFA Rates

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) provide that the Department may rely on 
information derived from (1) the petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
information placed on the record. The Department's practice is to 
select an AFA rate that is sufficiently adverse ``as to effectuate the 
purpose of the facts available rule to induce respondents to provide 
the Department with complete and accurate information in a timely 
manner'' and that ensures ``that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully.\16\ Specifically, the Department's practice in reviews, in 
selecting a rate as total AFA, is to use the highest rate on the record 
of the proceeding which, to the extent practicable, can be corroborated 
(assuming the rate is based on secondary information).\17\ The Court of 
International Trade (``CIT'') and the CAFC have affirmed decisions to 
select the highest margin from any prior segment of the proceeding as 
the AFA rate on numerous occasions.\18\ Therefore, as AFA, the 
Department has assigned the PRC-Wide Entity a dumping margin of 111.73 
percent. This margin is the highest calculated rate for a respondent on 
the record of any segment of the proceeding.\19\
---------------------------------------------------------------------------

    \16\  See Notice of Final Determination of Sales at Less than 
Fair Value: Static Random Access Memory Semiconductors From Taiwan, 
63 FR 8909, 8911(February 23, 1998); see also Brake Rotors From the 
People's Republic of China: Final Results and Partial Rescission of 
the Seventh Administrative Review; Final Results of the Eleventh New 
Shipper Review, 70 FR 69937, 69939 (November 18, 2005) and the 
Statement of Administrative Action accompany the Uruguay Round 
Agreement Act, H.R. Rep. No. 316, 103d Cong., 2d Sess. 870 
(``SAA'').
    \17\ See Glycine from the People's Republic of China: 
Preliminary Results of Antidumping Duty Administrative Review, 74 FR 
15930, 15934 (April 8, 2009), unchanged in Glycine From the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
Review, 74 FR 41121 (August 14, 2009); see also Fujian Lianfu 
Forestry Co., Ltd. v. United States, 638 F. Supp. 2d 1325, 1336 (CIT 
August 10, 2009) (``Commerce may, of course, begin its total AFA 
selection process by defaulting to the highest rate in any segment 
of the proceeding, but that selection must then be corroborated, to 
the extent practicable.'').
    \18\ See, e.g., NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 
1335 (Ct. Int'l Trade 2004) (affirming a 73. 55 percent total AFA 
rate, the highest available dumping margin from a different 
respondent in the investigation); Kompass Food Trading International 
v. United States, 24 CIT 678, 683-84 (2000) (affirming a 51. 16 
percent total AFA rate, the highest available dumping margin from a 
different, fully cooperative respondent); and Shanghai Taoen 
International Trading Co., Ltd. v. United States, 360 F. Supp. 2d 
1339, 1348 (Ct. Int'l Trade 2005) (affirming a 223. 01 percent total 
AFA rate, the highest available dumping margin from a different 
respondent in a previous administrative review).
    \19\ See Pure Magnesium from the People's Republic of China: 
Final Results of Antidumping Duty Administrative Review, 73 FR 76336 
(December 16, 2008) (``Pure Magnesium 06-07Final Results'').
---------------------------------------------------------------------------

Corroboration of Secondary Information

    Section 776(c) of the Act provides that, when the Department relies 
on

[[Page 80794]]

secondary information rather than on information obtained in the course 
of an investigation or review, it shall, to the extent practicable, 
corroborate that information from independent sources that are 
reasonably at its disposal. Secondary information is defined as 
information derived from the petition that gave rise to the 
investigation or review, the final determination concerning the subject 
merchandise, or any previous review under section 751 concerning the 
subject merchandise.\20\ Corroborate means that the Department will 
satisfy itself that the secondary information to be used has probative 
value.\21\ To corroborate secondary information, the Department will, 
to the extent practicable, examine the reliability and relevance of the 
information to be used.\22\ Independent sources used to corroborate 
such evidence may include, for example, published price lists, official 
import statistics and customs data, and information obtained from 
interested parties during the particular investigation.\23\
---------------------------------------------------------------------------

    \20\ See SAA.
    \21\ See id.
    \22\ See Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan: 
Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outside Diameter, and Components 
Thereof, From Japan; Final Results of Antidumping Duty 
Administrative Reviews and Termination in Part, 62 FR 11825 (March 
13, 1997).
    \23\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value: High and Ultra-High Voltage Ceramic Station Post 
Insulators from Japan, 68 FR 35627, 35629 (June 16, 2003), unchanged 
in Notice of Final Determination of Sales at Less Than Fair Value: 
High and Ultra High Voltage Ceramic Station Post Insulators from 
Japan, 68 FR 62560 (November 5, 2003); and Notice of Final 
Determination of Sales at Less Than Fair Value: Live Swine From 
Canada, 70 FR 12181, 12183-84 (March 11, 2005).
---------------------------------------------------------------------------

    As discussed above, the 111.73 percent AFA margin is the highest 
rate on the record of any segment of this antidumping duty order. This 
rate was calculated for a cooperative respondent in the 2006-2007 
administrative review of this order. This rate was recently applied to 
a separate rate company as well as the PRC-Wide Entity in the 
immediately preceding administrative review. No party has provided 
information related to the PRC-Wide Entity. During the 2006-2007 
administrative review, this margin was calculated using data from a 
cooperative respondent. The Federal Circuit has held that the 
Department ``is permitted to use a `common sense inference that the 
highest prior margin is most probative evidence of current margins 
because, if it were not so, the importer, knowing of the rule, would 
have produced current information showing the margin to be less.''' 
\24\ The Federal Circuit has held that ``{t{time} he presumption that a 
prior dumping margin imposed against an exporter in an earlier 
administrative review continues to be valid if the exporter fails to 
cooperate in a subsequent administrative review.'' \25\ Here, the PRC-
Wide Entity failed to cooperate or demonstrate that the margin applied 
is no longer valid.
---------------------------------------------------------------------------

    \24\ KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) 
(quoting Rhome Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 
(Fed. Cir. 1990)).
    \25\ Id.
---------------------------------------------------------------------------

    The Department continues to find that the 111.73 percent margin is 
probative, as it is both reliable and relevant.\26\ The rate is 
reliable as it was calculated for a cooperative mandatory respondent in 
a prior segment of this proceeding. The rate is relevant because, as 
discussed above, no party overcame the court-affirmed presumption that 
a rate applied to an exporter remains valid unless that exporter 
demonstrates that facts exist to rebut that presumption.
---------------------------------------------------------------------------

    \26\ See Preliminary Results, at 75 FR at 34697.
---------------------------------------------------------------------------

    Where circumstances indicate that the selected margin is not 
appropriate as AFA, the Department will disregard the margin and 
determine an appropriate margin. For example, in Fresh Cut Flowers from 
Mexico: Final Results of Antidumping Administrative Review, 61 FR 6812 
(February 22, 1996), the Department disregarded the highest margin in 
that case as adverse best information available (the predecessor to 
facts available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
discredited.\27\ None of these unusual circumstances are present in 
this proceeding.
---------------------------------------------------------------------------

    \27\ See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated).
---------------------------------------------------------------------------

    Accordingly, we determine that the highest rate determined in any 
segment of this administrative proceeding (i.e., 111.73 percent) is 
corroborated (i.e., it has probative value) within the meaning of 
section 776 (c) of the Act.

Changes Since the Preliminary Results

    Based on an analysis of the comments received, the Department has 
made certain changes in TMI's margin calculation. For the final 
results, the Department has made the following changes:
     We based our determination of the surrogate financial 
ratios on the financial statements of Madras Aluminum Company Ltd. 
(``MALCO'') rather than Sudal Industries Ltd. See Comment 2 of the 
accompanying Issues and Decision Memorandum.
     Consistent with our current practice, we revised the 
surrogate value for direct labor, indirect labor and packing labor to 
account for industry-specific wage rates. Additionally, for these final 
results we made corrections to the industry-specific labor calculation 
that we originally released to the parties on November 10, 2010. See 
Comment 8 of the accompanying Issues and Decision Memorandum.
     We revised the calculation of the surrogate value for 
dolomite to reflect the average of the value for dolomite reflected in 
the April 1, 2008-March 31, 2009 financial statements of Madras Cements 
Ltd., Tata Sponge Iron Ltd., Sagar Cements Limited, and Bhushan Steel 
Limited. See Comment 9 of the accompanying Issues and Decision 
Memorandum.
     We revised our calculation of brokerage and handling to 
divide the brokerage and handling costs reported in Doing Business 
2010--India by the publicly available value for the average maximum 
cargo load per container of 21,727 kgs. See Comment 12 of the 
accompanying Issues and Decision Memorandum.
     We revised our calculation of the surrogate value for the 
inputs of magnesium metal waste and magnesium waste to use the 
categories of 8104.20 and 8104.11, respectively. See Comment 13 of the 
accompanying Issues and Decision Memorandum.
     We revised the surrogate value for plastic bags, steel 
bands, and plastic bands. See Comment 14 of the accompanying Issues and 
Decision Memorandum.

Final Results Margin

    The weighted-average dumping margins for the final results are as 
follows:

------------------------------------------------------------------------
                                                            Weighted-
                       Exporter                          average margin
                                                          (percentage)
------------------------------------------------------------------------
Tianjin Magnesium International Co. Ltd...............              0.73
PRC-Wide Entity **....................................            111.73
------------------------------------------------------------------------
** Pan Asia and TXR are part of this PRC-Wide Entity.

Assessment Rates

    Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b), 
the

[[Page 80795]]

Department will determine, and U.S. Customs and Border Protection 
(``CBP'') shall assess, antidumping duties on all appropriate entries 
of subject merchandise in accordance with the final results of this 
review. For assessment purposes, we calculated importer (or customer)-
specific assessment rates for merchandise subject to this review. Where 
appropriate, we calculated an ad valorem rate for each importer (or 
customer) by dividing the total dumping margins for reviewed sales to 
that party by the total entered values associated with those 
transactions. For duty-assessment rates calculated on this basis, we 
will direct CBP to assess the resulting ad valorem rate against the 
entered customs values for the subject merchandise. Where appropriate, 
we calculated a per-unit rate for each importer (or customer) by 
dividing the total dumping margins for reviewed sales to that party by 
the total sales quantity associated with those transactions. For duty-
assessment rates calculated on this basis, we will direct CBP to assess 
the resulting per-unit rate against the entered quantity of the subject 
merchandise. Where an importer (or customer)-specific assessment rate 
is de minimis (i.e., less than 0.50 percent), the Department will 
instruct CBP to assess that importer (or customer's) entries of subject 
merchandise without regard to antidumping duties, in accordance with 19 
CFR 351.106(c)(2). The Department intends to issue assessment 
instructions to CBP 15 days after the date of publication of these 
final results of review.

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 TMI, the cash 
deposit rate will be the rate listed above; (2) for previously 
investigated or reviewed PRC and non-PRC exporters not listed above 
that have separate rates, the cash deposit rate will continue to be the 
exporter-specific rate published for the most recent period; (3) for 
all PRC exporters of subject merchandise which have not been found to 
be entitled to a separate rate, the cash deposit rate will be the PRC-
wide rate of 111.73 percent; and (4) for all non-PRC exporters of 
subject merchandise which have not received their own rate, the cash 
deposit rate will be the rate applicable to the PRC exporter that 
supplied that non-PRC exporter. The deposit requirements shall remain 
in effect until further notice.

Notification to Importers

    This notice also serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of the antidumping duties occurred and the subsequent 
assessment of double antidumping duties.

Notification to Interested Parties

    This notice also serves as a reminder to parties subject to 
administrative protective orders (``APOs'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under the APO in accordance with 19 CFR 351.305(a)(3), which 
continues to govern business proprietary information in this segment of 
the proceeding. Timely written notification of the return/destruction 
of APO materials or conversion to judicial protective order is hereby 
requested. Failure to comply with the regulations and terms of an APO 
is a violation which is subject to sanction.

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).
    We are issuing and publishing the final results and notice in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: December 15, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.

Appendix I

Comment 1: Whether the Department Should Apply Total AFA to TMI
Comment 2: Selection of Surrogate Financial Statements
Comment 3: Whether the Department Should Calculate the Surrogate 
Value for Labor Using Multiple Surrogate Countries or a Single 
Country, India
Comment 4: Whether the Department Should Expand the List of 
Economically Comparable Countries
Comment 5: Whether the Department's Wage Data Memorandum Contained 
Data Errors
Comment 6: Whether To Use ILO Wage Data Contemporaneous With the POR 
Rather Than Using Pre-POR Data and Adjusting for Inflation as 
Reported in the Wage Rate Memorandum
Comment 7: Whether the Department Should Exclude Indian Data from 
the Wage Rate Calculation
Comment 8: Whether the Countries Used to Determine the Wage Rate in 
this Case Are ``Significant Producers of Comparable Merchandise''
Comment 9: Valuation of Dolomite
Comment 10: Valuation of Flux
Comment 11: The Source of the Surrogate Value for Foreign Inland 
Freight
Comment 12: The Surrogate Value for Brokerage and Handling
Comment 13: The Appropriate HTS Classification for Magnesium Waste/
Scrap (``MGS'') and Magnesium Metal Waste/Scrap (``ALLOYS'')
Comment 14: The Per-Unit Basis for Plastic Bags, Steel Bands, and 
Plastic Bands

[FR Doc. 2010-32329 Filed 12-22-10; 8:45 am]
BILLING CODE P

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.