Certain Activated Carbon From the People's Republic of China: Preliminary Results of the Third Antidumping Duty Administrative Review, and Preliminary Rescission in Part, 23978-23991 [2011-10429]
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23978
Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Notices
Antidumping Duty Administrative
Review, 73 FR 77610, 77612 (December
19, 2008). In addition, the Department
finds that it is more consistent with the
May 2003 clarification not to rescind the
review in these circumstances but,
rather, to complete the review with
respect to Marsan and issue appropriate
instructions to CBP based on the final
results of the review. See Magnesium
Metal From the Russian Federation:
Final Results of Antidumping Duty
Administrative Review, 75 FR 56989,
56989–56990 (September 17, 2010). See
also the Assessment Rates section of
this notice below.
srobinson on DSKHWCL6B1PROD with NOTICES
Disclosure
The Department will disclose these
preliminary results to the parties within
five days of the date of publication of
this notice in accordance with 19 CFR
351.224(b).
Comments
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)(1)(ii). Rebuttal briefs, limited
to issues raised in the case briefs, will
be due five days later, pursuant to 19
CFR 351.309(d). Parties who submit
case or rebuttal briefs in this proceeding
are requested to submit with each
argument (1) a statement of the issue,
and (2) a brief summary of the
argument. Parties are requested to
provide a summary of the arguments not
to exceed five pages and a table of
statutes, regulations, and cases cited.
See 19 CFR 351.309(c)(2). Additionally,
parties are requested to provide their
case brief and rebuttal briefs in
electronic format (e.g., Microsoft Word,
pdf, etc.). Interested parties, who wish
to request a hearing or to participate if
one is requested, must submit a written
request to the Assistant Secretary for
Import Administration within 30 days
of the date of publication of this notice.
Requests should contain: (1) The party’s
name, address, and telephone number;
(2) the number of participants; and (3)
a list of issues to be discussed. See 19
CFR 351.310(c). Issues raised in the
hearing will be limited to those raised
in case and rebuttal briefs. The
Department will issue the final results
of this review, including the results of
its analysis of issues raised in any such
written briefs or at the hearing, if held,
not later than 120 days after the date of
publication of this notice.
Assessment Rates
The Department intends to issue
appropriate assessment instructions
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directly to CBP 15 days after the
publication of the final results of this
review.
Normally, the Department instructs
CBP to liquidate any entries from the
no-shipment producer at the deposit
rate in effect on the date of entry.
However, in this case, because there was
only a request for review of the reseller
and not the producer, we intend to
liquidate entries at the producer’s rate.
However, because Birlik does not have
its own rate, we intend to instruct CBP
to liquidate entries at the ‘‘all others’’
rate from the investigation of 51.49
percent, in accordance with the reseller
policy.
Cash Deposit Requirements
The following deposit rates will be
effective upon publication of the final
results of this administrative review for
all shipments of certain pasta from
Turkey entered, or withdrawn from
warehouse, for consumption on or after
the publication date, as provided by
section 751(a)(2)(C) of the Act for
Marsan, and for previously reviewed or
investigated companies, the cash
deposit rate will continue to be the
company-specific rate published for the
most recent final results in which that
manufacturer or exporter participated;
(2) if the exporter is not a firm covered
in these reviews, a prior review, or the
original less-than-fair-value (LTFV)
investigation, but the manufacturer is,
the cash deposit rate will be the rate
established for the most recent final
results for the manufacturer of the
merchandise; and (3) if neither the
exporter nor the manufacturer is a firm
covered in this or any previous review
or the LTFV conducted by the
Department, the cash deposit rate will
be 51.49 percent, the all-others rate
established in the LTFV. See Amended
Final Determination. These cash deposit
requirements, when imposed, shall
remain in effect until further notice.
Notification to Importers
This notice serves as a preliminary
reminder to importers of their
responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping and countervailing 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 and countervailing duties
occurred and the subsequent assessment
of double antidumping and
countervailing duties.
These preliminary results of review
are issued and published in accordance
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with sections 751(a)(1) and 777(i) of the
Act and 19 CFR 351.221(b)(4).
Dated: April 22, 2011.
Paul Piquado,
Acting Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–10434 Filed 4–28–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–904]
Certain Activated Carbon From the
People’s Republic of China:
Preliminary Results of the Third
Antidumping Duty Administrative
Review, and Preliminary Rescission in
Part
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘Department’’) is conducting the third
administrative review of the
antidumping duty order on certain
activated carbon from the People’s
Republic of China (‘‘PRC’’) for the period
April 1, 2009, through March 31, 2010.
The Department has preliminarily
determined that sales have been made
below normal value (‘‘NV’’) by the
respondents examined in this
administrative review. If these
preliminary results are adopted in our
final results of this review, the
Department will instruct U.S. Customs
and Border Protection (‘‘CBP’’) to assess
antidumping duties on all appropriate
entries of subject merchandise during
the period of review.
DATES: Effective Date: April 29, 2011.
FOR FURTHER INFORMATION CONTACT: Bob
Palmer or Katie Marksberry, AD/CVD
Operations, Office 9, Import
Administration, International Trade
Administration, Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–9068 or (202) 482–
7906, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
The Department received timely
requests from Petitioners 1 and certain
PRC and other companies, in
accordance with 19 CFR 351.213(b),
during the anniversary month of April,
to conduct a review of certain activated
carbon exporters from the PRC. On May
28, 2010, and June 30, 2010, the
1 Collectively, Norit Americas Inc. (‘‘Norit’’) and
Calgon Carbon Corporation.
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Department initiated this review with
respect to all requested companies with
the exception of ten companies for
which Petitioners did not demonstrate
that they had made a reasonable attempt
to serve the request for review as
required by the Department in 19 CFR
351.303(f)(3)(ii), nor did they explain
satisfactorily why they desired a review
of these ten companies, as required by
19 CFR 351.213(b)(1).2
On June 15, 2010, Petitioners
withdrew the request for review with
respect to 157 of the 192 companies
under review. On August 11, 2010, the
Department published a notice of
rescission in the Federal Register for
those 157 companies for which the
request for review was withdrawn.3 On
July 8, 2010, Petitioners withdrew the
request for review with respect to an
additional 17 companies. On August 23,
2010, the Department published a
second notice of rescission in the
Federal Register for those 17
companies.4 Eighteen companies remain
subject to this review.5 On July 27,
2010, Ningxia Lingzhou Foreign Trade
Co., Ltd. (‘‘Lingzhou’’) submitted a letter
certifying it had no shipments during
the period of review (‘‘POR’’).6 On
October 6, 2010, the Department
published a notice 7 extending the time
2 See Initiation of Antidumping and
Countervailing Duty Administrative Reviews, 75 FR
29976 (May 28, 2010); see also Initiation of
Antidumping and Countervailing Duty
Administrative Reviews and Requests for
Revocation in Part, 75 FR 37759 (June 30, 2010)
(collectively, ‘‘Initiation Notices’’).
3 See Certain Activated Carbon From the People’s
Republic of China: Notice of Partial Rescission of
Antidumping Duty Administrative Review, 75 FR
48644 (August 11, 2010).
4 See Certain Activated Carbon from the People’s
Republic of China: Notice of Partial Rescission of
Antidumping Duty Administrative Review, 75 FR
51754 (August 23, 2010).
5 These companies are: Beijing Pacific Activated
Carbon Products Co., Ltd., Calgon Carbon (Tianjin)
Co., Ltd., Datong Juqiang Activated Carbon Co.,
Ltd., Datong Municipal Yungang Activated Caron
Co., Ltd., Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Jacobi
Carbons AB, Ningxia Guanghua Cherishment
Activated Carbon Co., Ltd., Ningxia Huahui
Activated Carbon Co., Ltd., Ningxia Lingzhou
Foreign Trade Company, Shanxi DMD Corporation,
Shanxi Newtime Co., Ltd., Shanxi Sincere
Industrial Co., Ltd., Shanxi Industry Technology
Trading Co., Ltd., Tangshan Solid Carbon Co., Ltd.,
Tianjin Jacobi International Trading Co. Ltd.,
Tianjin Maijin Industries Co., Ltd., and United
Manufacturing International (Beijing) Ltd.
6 Companies have the opportunity to submit
statements certifying that they did not ship the
subject merchandise to the United States during the
POR.
7 See Certain Activated Carbon From the People’s
Republic of China: Extension of Time Limits for
Preliminary Results of the Third Antidumping Duty
Administrative Review, 75 FR 61697 (October 6,
2010).
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period for issuing the preliminary
results by 120 days to April 30, 2011.8
Albemarle’s Status as an Interested
Party
On April 30, 2010, Albemarle
Corporation (‘‘Albemarle’’) requested a
review of Calgon Carbon (Tianjin) Co.,
Ltd. (‘‘CCT’’). On May 27, 2010,
Petitioners submitted comments
disputing Albemarle’s status as a
domestic interested party. On June 2,
2010, the Department issued a
questionnaire to Albemarle requesting
further information regarding its status
as a wholesaler of the domestic like
product. Albemarle submitted its
response to the Department’s
questionnaire on June 18, 2010.
Petitioners submitted additional
comments regarding Albemarle’s
response on June 28, 2010. On August
11, 2010, the Department sent an
additional questionnaire to Albemarle
requesting further information regarding
its status as a wholesaler of the domestic
like product. Albemarle submitted its
response on August 18, 2010. On
August 26, 2010, CCT submitted
comments in response to Albemarle’s
additional questionnaire response, and
on August 27, 2010, Norit submitted
comments as well.
The Department considered
Petitioners’ comments, CCT’s
comments, and Albemarle’s
submissions and determined that
Albemarle is a ‘‘wholesaler in the United
States of a domestic like product.’’
Therefore, under section 771(9)(C) of the
Tariff Act of 1930, as amended (‘‘the
Act’’), the Department found that
Albemarle is a domestic interested
party, and its request for a review of
CCT is proper pursuant to 19 CFR
351.213(b).9 We have not received
additional comments regarding
Albemarle’s status as an interested
party; therefore, we continue to find that
Albemarle’s request for a review of CCT
was proper.
Respondent Selection
Section 777A(c)(1) of the Act directs
the Department to calculate individual
dumping margins for each known
8 Because April 30, 2011, is a Saturday, the actual
deadline for issuing the preliminary results falls on
May 2, 2011, the next business day.
9 For further discussion of Albemarle’s status as
a domestic interested party, see Memorandum to
James Doyle, Director, AD/CVD Operations, Office
9, through Catherine Bertrand, Program Manager,
AD/CVD Operation Office 9, from Katie Marksberry,
International Trade Specialist, AD/CVD Operations,
Office 9; Re: Antidumping Duty Administrative
Review of Certain Activated Carbon from the
People’s Republic of China: Selection of Additional
Mandatory Respondent, dated September 29, 2010
(‘‘Additional Respondent Selection Memo’’).
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exporter or producer of the subject
merchandise.10 However, section
777A(c)(2) of the Act gives the
Department discretion to limit its
examination to a reasonable number of
exporters or producers, if it is not
practicable to examine all exporters or
producers for which the review is
initiated.
On May 28, 2010, the Department
released CBP data for entries of the
subject merchandise during the POR
under administrative protective order
(‘‘APO’’) to all interested parties having
access to materials released under APO
inviting comments regarding the CBP
data and respondent selection. On June
4, 2010, the Department extended the
deadline for comments regarding the
CBP data. The Department received
comments and rebuttal comments
between June 7, 2010, and June 14,
2010.
On July 21, 2010, the Department
issued its respondent selection
memorandum after assessing its
resources, considering the number of
individual exporters of certain activated
carbon for which a review had been
requested, and determining that it could
reasonably examine two of the exporters
subject to this review.11 Pursuant to
section 777A(c)(2)(B) of the Act, the
Department selected Jacobi Carbons AB
(‘‘Jacobi’’) as a mandatory respondent.
On September 29, 2010, based on the
determination that Albemarle
Corporation is an interested party in this
review, the Department issued an
additional respondent selection
memorandum selecting CCT as a
mandatory respondent.12
Petitioners’ Allegations of ThirdCountry Sales Made by Jacobi
On October 12, 2010, and November
1, 2010, Petitioners submitted
comments requesting that the
Department require Jacobi to revise its
Section C database to include sales of
subject merchandise that Petitioners
allege were sold through Jacobi’s
affiliate in Sri Lanka. On November 9,
2010, the Department issued a letter to
Petitioners acknowledging that the
Department has the authority to address
allegations of transshipment based on
section 781(b) of the Act, which allows
for the prevention of circumvention of
10 See also 19 CFR 351.204(c) regarding
respondent selection, in general.
11 See Memorandum to James Doyle, Director,
AD/CVD Operations, Office 9, from Kabir
Archuletta and Jamie Blair-Walker, International
Trade Compliance Analysts, Office 9; Antidumping
Duty Administrative Review of Certain Activated
Carbon from the PRC: Selection of Respondents for
Individual Review, dated July 21, 2010.
12 See Additional Respondent Selection Memo.
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antidumping duty orders for
merchandise completed or assembled in
other foreign countries, and 19 CFR
351.225(h), which states how the
Department handles scope inquiries
related to ‘‘products completed or
assembled in other foreign countries,’’ in
accordance with section 781(b) of the
Act. However, the Department
concluded that it would not request
Jacobi to revise its Section C database to
include sales of subject merchandise
allegedly sold through Jacobi’s Sri
Lankan affiliate. As upheld by the Court
of International Trade (‘‘CIT’’) in Globe
Metallurgical 13 affirming the
Department’s remand from Silicon
Metal, 14 where a party has placed
evidence on the record of an
administrative review to support
allegations of transshipment involving
third-country processing, it is the
Department’s practice to consider such
allegations through a scope or anticircumvention inquiry rather than
within the context of an administrative
review.15
On November 16, 2010, Petitioners
filed additional comments asking the
Department to reconsider its decision.
Petitioners argued that this case differs
from Globe Metallurgical in a number of
ways. Specifically, Petitioners noted
that in this case, unlike in Globe
Metallurgical: (1) The Department has a
substantial database of sales by Jacobi
that are subject to review; (2) the thirdcountry supplier is affiliated with Jacobi
and the Department has the ability to
require it to participate; (3) the
Department has sufficient time and
resources to examine the additional
sales and circumstances; (4) there are
suspended entries upon which the
Department can assess antidumping
duties; (5) the question of Jacobi’s
potential transshipment is best explored
within the context of an administrative
review; and (6) the Department should
exercise the authority to examine
Jacobi’s third-country sales to ensure
that companies do not transship their
highest margin sales to manipulate
margins in administrative reviews.
At this time, the Department
continues to find that although the
Department does have the authority to
investigate allegations of transshipment
within the context of an administrative
13 See Globe Metallurgical Inc. v. United States,
722 F. Supp. 2d 1372 (Ct. Int’l Trade Sept. 1, 2010).
14 See Silicon Metal from the People’s Republic
of China, April 8, 2010, remanded from Globe
Metallurgical, Inc. v. United States, Court No. 08–
00290 (December 18, 2009).
15 See letter to Calgon Carbon Corporation and
Norit Americas Inc., from James C. Doyle, Director,
Office 9, re: Third Administrative Review of Certain
Activated Carbon from the People’s Republic of
China, dated November 9, 2010.
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review, we have determined that an
administrative review is not the best
context for addressing the type of
allegations that Petitioners have brought
to the Department. Specifically, we
continue to find, as we did in the Globe
Metallurgical remand, that evaluating
and verifying additional information
relating to a circumvention allegation
creates an overwhelming burden in an
administrative review. Therefore, as
previously stated, it is the Department’s
practice that where a party has placed
evidence on the record of an
administrative review to support
allegations of transshipment involving
third-country processing, a scope or
anti-circumvention inquiry is the proper
venue and we will not consider it
within the context of an administrative
review. Furthermore, where the
allegation concerns transshipment that
does not involve third-country
processing, such an allegation should be
directed to CBP, which is the proper
authority to investigate claims of
mislabeling country-of-origin.
Therefore, although the Department
intends to seek additional information
from Jacobi in order to ensure that its
Section C database includes the full
universe of its POR sales of subject
merchandise, we are not requiring
Jacobi to revise its Section C
questionnaire responses or databases to
include sales of merchandise from Sri
Lanka for these preliminary results.16
Questionnaires
On July 21, 2010, the Department
issued its initial non-market economy
(‘‘NME’’) antidumping duty
questionnaire to the mandatory
respondent Jacobi. On September 30,
2010, the Department issued its initial
NME antidumping duty questionnaire to
the mandatory respondent CCT. CCT
and Jacobi timely responded to the
Department’s initial and subsequent
supplemental questionnaires between
August 2010 and February 2011.
Period of Review
The POR is April 1, 2009, through
March 31, 2010.
Scope of the Order
The merchandise subject to the order
is certain activated carbon. Certain
activated carbon is a powdered,
granular, or pelletized carbon product
obtained by ‘‘activating’’ with heat and
steam various materials containing
carbon, including but not limited to coal
(including bituminous, lignite, and
anthracite), wood, coconut shells, olive
16 However, we will refer Petitioners’
transshipment allegations to CBP.
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stones, and peat. The thermal and steam
treatments remove organic materials and
create an internal pore structure in the
carbon material. The producer can also
use carbon dioxide gas (CO2) in place of
steam in this process. The vast majority
of the internal porosity developed
during the high temperature steam (or
CO2 gas) activated process is a direct
result of oxidation of a portion of the
solid carbon atoms in the raw material,
converting them into a gaseous form of
carbon.
The scope of the order covers all
forms of activated carbon that are
activated by steam or CO2, regardless of
the raw material, grade, mixture,
additives, further washing or postactivation chemical treatment (chemical
or water washing, chemical
impregnation or other treatment), or
product form. Unless specifically
excluded, the scope of the order covers
all physical forms of certain activated
carbon, including powdered activated
carbon (‘‘PAC’’), granular activated
carbon (‘‘GAC’’), and pelletized activated
carbon.
Excluded from the scope of the order
are chemically activated carbons. The
carbon-based raw material used in the
chemical activation process is treated
with a strong chemical agent, including
but not limited to phosphoric acid, zinc
chloride, sulfuric acid or potassium
hydroxide, that dehydrates molecules in
the raw material, and results in the
formation of water that is removed from
the raw material by moderate heat
treatment. The activated carbon created
by chemical activation has internal
porosity developed primarily due to the
action of the chemical dehydration
agent. Chemically activated carbons are
typically used to activate raw materials
with a lignocellulosic component such
as cellulose, including wood, sawdust,
paper mill waste and peat.
To the extent that an imported
activated carbon product is a blend of
steam and chemically activated carbons,
products containing 50 percent or more
steam (or CO2 gas) activated carbons are
within the scope, and those containing
more than 50 percent chemically
activated carbons are outside the scope.
This exclusion language regarding
blended material applies only to
mixtures of steam and chemically
activated carbons.
Also excluded from the scope are
reactivated carbons. Reactivated carbons
are previously used activated carbons
that have had adsorbed materials
removed from their pore structure after
use through the application of heat,
steam and/or chemicals.
Also excluded from the scope is
activated carbon cloth. Activated carbon
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cloth is a woven textile fabric made of
or containing activated carbon fibers. It
is used in masks and filters and clothing
of various types where a woven format
is required.
Any activated carbon meeting the
physical description of subject
merchandise provided above that is not
expressly excluded from the scope is
included within the scope. The
products subject to the order are
currently classifiable under the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’) subheading
3802.10.00. Although the HTSUS
subheading is provided for convenience
and customs purposes, the written
description of the scope of the order is
dispositive.
Preliminary Partial Rescission
As discussed in the ‘‘Background’’
section above, Lingzhou filed a no
shipment certification indicating that it
did not export subject merchandise to
the United States during the POR. In
order to examine this claim, we
reviewed the CBP data used for
respondent selection and found no
discrepancies with the statement made
by Lingzhou. Additionally, we sent an
inquiry to CBP asking if any CBP office
had any information contrary to the no
shipments claim and requesting CBP
alert the Department of any such
information within ten days of receiving
our inquiry. CBP received our inquiry
on October 6, 2010. We have not
received a response from CBP with
regard to our inquiry which indicates
that CBP did not have information that
was contrary to the claim of Lingzhou.
Therefore, because the record indicates
that Lingzhou did not export subject
merchandise to the United States during
the POR, we are preliminarily
rescinding this administrative review
with respect to this company.17
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Non-Market Economy Country Status
In every case conducted by the
Department involving the PRC, the PRC
has been treated as an NME country. In
accordance with section 771(18)(C)(i) of
the Act, any determination that a foreign
country is an NME country shall remain
in effect until revoked by the
administering authority.18 None of the
17 See, e.g., Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Notice of
Preliminary Results and Partial Rescission of the
Third Antidumping Duty Administrative Review, 72
FR 53527, 53530 (September 19, 2007), unchanged
in Certain Frozen Fish Fillets From the Socialist
Republic of Vietnam: Final Results of Antidumping
Duty Administrative Review and Partial Rescission,
73 FR 15479, 15480 (March 24, 2008).
18 See Brake Rotors From the People’s Republic of
China: Final Results and Partial Rescission of the
2004/2005 Administrative Review and Notice of
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parties to this proceeding has contested
such treatment. Accordingly, the
Department continues to treat the PRC
as an NME and calculated NV in
accordance with section 773(c) of the
Act, which applies to NME countries.
When the Department investigates
imports from an NME country and
available information does not permit
the Department to determine NV,
pursuant to section 773(a) of the Act,
then, pursuant to section 773(c)(1), the
Department determines NV on the basis
of the factors of production (‘‘FOP’’)
utilized in producing the merchandise.
Surrogate Country
Section 773(c)(4) of the Act, directs
the Department to value an NME
producer’s FOPs, to the extent possible,
in one or more market-economy
countries that (1) are at a level of
economic development comparable to
that of the NME country, and (2) are
significant producers of comparable
merchandise. Pursuant to this statutory
directive, the Department determined
that India, Indonesia, the Philippines,
Colombia, Thailand, and Peru are
countries comparable to the PRC in
terms of economic development.19
On September 28, 2010, the
Department sent interested parties a
letter inviting comments on surrogate
country selection and information
regarding valuing FOPs.20 On January
14, 2011, the Department received
information to value FOPs from CCT,
Jacobi, and Petitioners. The Department
did not receive any rebuttal surrogate
value comments. All of the surrogate
values placed on the record were
obtained from sources in India. No
parties provided comments with respect
to selection of a surrogate country.
Based on publicly available
information placed on the record (e.g.,
production data), the Department
determines India to be a reliable source
for surrogate values because India is at
a comparable level of economic
development to the PRC pursuant to
section 773(c)(4) of the Act, is a
significant producer of subject
Rescission of 2004/2005 New Shipper Review, 71
FR 66304 (November 14, 2006).
19 See Memorandum to Catherine Bertrand,
Program Manager, AD/CVD Operations, Office 9,
Import Administration, from Carole Showers,
Director, Office of Policy, Import Administration re:
Request for a List of Surrogate Countries for an
Administrative Review of the Antidumping Duty
Order on Certain Activated Carbon (‘‘Carbon’’) from
the People’s Republic of China (‘‘PRC’’), dated
September 21, 2010.
20 See the Department’s Letter to All Interested
Parties; Third Administrative Review of Certain
Activated Carbon from the People’s Republic of
China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated September 28,
2010.
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23981
merchandise, and has publicly available
and reliable data for which to value the
respondents’ FOPs. Accordingly, the
Department has selected India as the
surrogate country for purposes of
valuing the FOPs because it meets the
Department’s criteria for surrogate
country selection.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the
Act provide that, if necessary
information is not available on the
record, or if an interested party: (A)
Withholds information that has been
requested by the Department; (B) fails to
provide such information in a timely
manner or in the form or manner
requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly
impedes a proceeding under the
antidumping statute; or (D) provides
such information but the information
cannot be verified, the Department
shall, subject to subsection 782(d) of the
Act, use facts otherwise available in
reaching the applicable determination.
Section 782(c)(1) of the Act provides
that if an interested party ‘‘promptly
after receiving a request from [the
Department] for information, notifies
[the Department] that such party is
unable to submit the information in the
requested form and manner, together
with a full explanation and suggested
alternative forms in which such party is
able to submit the information,’’ the
Department may modify the
requirements to avoid imposing an
unreasonable burden on that party.
Section 782(d) of the Act provides
that, if the Department determines that
a response to a request for information
does not comply with the request, the
Department will inform the person
submitting the response of the nature of
the deficiency and shall, to the extent
practicable, provide that person the
opportunity to remedy or explain the
deficiency. If that person submits
further information that continues to be
unsatisfactory, or this information is not
submitted within the applicable time
limits, the Department may, subject to
section 782(e) of the Act, disregard all
or part of the original and subsequent
responses, as appropriate.
Section 782(e) of the Act states that
the Department shall not decline to
consider information deemed
‘‘deficient’’ under section 782(d) if: (1)
The information is submitted by the
established deadline; (2) the information
can be verified; (3) the information is
not so incomplete that it cannot serve as
a reliable basis for reaching the
applicable determination; (4) the
interested party has demonstrated that it
acted to the best of its ability in
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providing the information and meeting
the requirements established by the
Department; and (5) the information can
be used without undue difficulties.
However, section 776(b) of the Act
states that if the Department ‘‘finds that
an interested party has failed to
cooperate by not acting to the best of its
ability to comply with a request for
information from the administering
authority or the Commission, the
administering authority or the
Commission * * *, in reaching the
applicable determination under this
title, may use an inference that is
adverse to the interests of that party in
selecting from among the facts
otherwise available.’’ 21 Adverse
inferences are appropriate ‘‘to ensure
that the party does not obtain a more
favorable result by failing to cooperate
than if it had cooperated fully.’’ Id. An
adverse inference may include reliance
on information derived from the
petition, the final determination in the
investigation, any previous review, or
any other information placed on the
record. See section 776(b) of the Act.
srobinson on DSKHWCL6B1PROD with NOTICES
Jacobi’s Excluded Producers
On August 2, 2010, Jacobi requested
to be excused from reporting FOP data
for certain Chinese producers. On
August 9, 2010, Petitioners submitted
comments on Jacobi’s request. On
August 13, 2010, the Department
notified Jacobi that due to the large
number of producers that supplied
Jacobi during the POR, Jacobi would be
excused from reporting certain FOP
data.22 Specifically, the Department did
not require Jacobi to report FOP data for
its five smallest producers.
Additionally, the Department notified
Jacobi that it was not required to report
FOP data for products that were
purchased and not produced by Jacobi’s
suppliers, as indicated in Jacobi’s
August 2, 2010 letter. Thus, the
Department determined that upon
Jacobi’s acceptance of the exclusion
terms, the Department would determine
the appropriate facts available to apply,
in lieu of the actual FOP data, to the
corresponding U.S. sales of subject
merchandise.
CCT’s Excluded Producers
On October 14, 2010, CCT requested
to be excused from reporting FOP data
for certain Chinese producers as well as
FOP data for products that were
21 See also Statement of Administrative Action
accompanying the Uruguay Round Agreements Act,
H.R. Rep. No. 103–316, Vol. 1, at 870 (1994)
(‘‘SAA’’), reprinted in 1994 U.S.C.C.A.N. 4040,
4198–99.
22 See the Department’s Letter to Jacobi dated
August 13, 2010.
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produced prior to the POR, but were
sold during the POR. On October 29,
2010, the Department notified CCT that
due to the large number of producers
that supplied CCT during the POR, CCT
would be excused from reporting certain
FOP data.23 Specifically, the
Department did not require CCT to
report FOP data for its eight smallest
producers. Additionally, the
Department notified CCT that it was not
required to report FOP data for products
that were purchased and not produced
by CCT’s suppliers, as indicated in
CCT’s October 14, 2010 letter.
Furthermore, the Department notified
CCT that it would not be required to
report FOP data for products that were
produced prior to the POR, except for
those products blended by CCT during
the current POR. Thus, the Department
determined that upon CCT’s acceptance
of the exclusion terms, the Department
would determine the appropriate facts
available to apply, in lieu of the actual
FOP data, to the corresponding U.S.
sales of subject merchandise.
In accordance with section 776(a)(1)
of the Act, the Department is applying
facts available to determine the NV for
the sales corresponding to the FOP data
that Jacobi and CCT were excused from
reporting. As facts available, the
Department is applying the calculated
average normal value of Jacobi and
CCT’s reported sales to the sales
produced by the excluded producers.
These issues are addressed in separate
company-specific memoranda where a
detailed explanation of the facts
available calculation is provided.24
Separate Rates
A designation of a country as an NME
remains in effect until it is revoked by
the Department.25 In proceedings
involving NME countries, it is the
Department’s practice to begin with a
rebuttable presumption that all
companies within the country are
subject to government control and thus
23 See the Department’s letter to CCT dated
October 29, 2010.
24 See Memorandum to Catherine Bertrand,
Program Manager, AD/CVD Operations, Office 9,
from Katie Marksberry, Case Analyst, AD/CVD
Operations, Office 9: Preliminary Results Analysis
Memorandum for Jacobi Carbons AB in the
Antidumping Duty Administrative Review of
Certain Activated Carbon from the People’s
Republic of China, dated concurrently with this
notice (‘‘Jacobi Prelim Analysis Memo’’); see also
Memorandum to Catherine Bertrand, Program
Manager, AD/CVD Operations, Office 9, from Bob
Palmer, Case Analyst, AD/CVD Operations, Office
9: Preliminary Results Analysis Memorandum for
Calgon Carbon (Tianjin) Co. in the Antidumping
Duty Administrative Review of Certain Activated
Carbon from the People’s Republic of China, dated
concurrently with this notice (‘‘CCT Prelim Analysis
Memo’’).
25 See section 771(18)(c)(i) of the Act.
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should be assessed a single antidumping
duty rate.26
In the Initiation Notices, the
Department notified parties of the
application process by which exporters
and producers may obtain separate rate
status in NME reviews.27 It is the
Department’s policy to assign all
exporters of merchandise subject to
investigation in an NME country this
single rate unless an exporter can
affirmatively demonstrate that it is
sufficiently independent so as to be
entitled to a separate rate.28 Exporters
can demonstrate this independence
through the absence of both de jure and
de facto government control over export
activities.29 The Department analyzes
each entity exporting the subject
merchandise under a test arising from
the Final Determination of Sales at Less
Than Fair Value: Sparklers From the
People’s Republic of China, 56 FR 20588
(May 6, 1991) (‘‘Sparklers’’), as further
developed in Notice of Final
Determination of Sales at Less Than
Fair Value: Silicon Carbide From the
People’s Republic of China, 59 FR 22585
(May 2, 1994) (‘‘Silicon Carbide’’).
However, if the Department determines
that a company is wholly foreign-owned
or located in a market economy (‘‘ME’’),
then a separate rate analysis is not
necessary to determine whether it is
independent from government
control.30
Excluding the companies selected for
individual review, the Department
received separate rate applications or
certifications from the following
companies: Beijing Pacific Activated
Carbon Products Co., Ltd.; Datong
Municipal Yunguang Activated Carbon
Co., Ltd.; Ningxia Guanghua
Cherishment Activated Carbon Co., Ltd.;
Ningxia Huahui Activated Carbon Co.,
Ltd. (‘‘Huahui’’); Shanxi DMD
Corporation; Shanxi Sincere Industrial
Co., Ltd.; Shanxi Industry Technology
Trading Co., Ltd.; Tangshan Solid
Carbon Co., Ltd.; and Tianjin Maijin
Industries Co., Ltd.
Additionally, the Department
received completed responses to the
26 See Notice of Final Determination of Sales at
Less Than Fair Value, and Affirmative Critical
Circumstances, In Part: Certain Lined Paper
Products From the People’s Republic of China, 71
FR 53079, 53080 (September 8, 2006); Final
Determination of Sales at Less Than Fair Value and
Final Partial Affirmative Determination of Critical
Circumstances: Diamond Sawblades and Parts
Thereof from the People’s Republic of China, 71 FR
29303, 29307 (May 22, 2006).
27 See Initiation Notices.
28 See id.
29 See id.
30 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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Section A portion of the NME
questionnaire from CCT and Jacobi,
which contained information pertaining
to the companies’ eligibility for a
separate rate. However, Datong Juqiang
Activated Carbon Co., Ltd.; Datong
Yunguang Chemicals Plant; Hebei
Foreign Trade and Advertising
Corporation; Shanxi Newtime Co., Ltd.;
and United Manufacturing International
(Beijing) Ltd.; companies upon which
the Department initiated administrative
reviews that have not been rescinded,
did not submit either a separate-rate
application or certification. Therefore,
because Datong Juqiang Activated
Carbon Co., Ltd.; Datong Yunguang
Chemicals Plant; Hebei Foreign Trade
and Advertising Corporation; Shanxi
Newtime Co., Ltd.; and United
Manufacturing International (Beijing)
Ltd. did not demonstrate their eligibility
for separate rate status in a timely
manner, we have determined it is
appropriate to consider these companies
as part of the PRC-wide entity.
Ningxia Huahui Activated Carbon Co.,
Ltd.’s Status as a Separate Rate
Company
On December 23, 2010, Huahui
submitted its separate rate application
to the Department.31 On January 3,
2011, Petitioners submitted comments
on Huahui’s application.32 On January
21, 2011, the Department issued a
supplemental questionnaire to Huahui
regarding its separate rate application,
and on February 22, 2011, Huahui
submitted its response to the
Department.33 On March 3, 2011,
Petitioners submitted additional
comments to the Department regarding
Huahui’s application for a separate
rate.34 On March 11, 2011, the
Department issued a second
supplemental questionnaire to Huahui
regarding its separate rate application,
and on March 23, 2011, Huahui
submitted a response to the
srobinson on DSKHWCL6B1PROD with NOTICES
31 See
Separate Rate Application of Ningxia
Huahui Activated Carbon Co., Ltd., dated December
23, 2010, (‘‘Huahui Separate Rate Application’’).
32 See Letter from Petitioners to the Department
re: Third Administrative Review of the
Antidumping Duty Order on Certain Activated
Carbon from the People’s Republic of China:
Petitioners’ Initial Comments on Ningxia Huahui’s
Separate Rate Application, dated January 3, 2011.
33 See Huahui’s Supplemental Questionnaire
Regarding the December 23, 2010 Separate Rate
Application of Ningxia Huahui Activated Carbon
Co., Ltd., dated February 22, 2011.
34 See Letter from Petitioners to the Department
re: Third Administrative Review of the
Antidumping Duty Order on Certain Activated
Carbon from the People’s Republic of China:
Petitioners’ Pre-Preliminary Comments on Ningxia
Huahui’s Separate Rate Application, dated March 3,
2011.
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17:39 Apr 28, 2011
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Department.35 On April 5, 2011,
Petitioners submitted additional
comments on Huahui’s second
supplemental questionnaire.
The Department has analyzed
Huahui’s separate rate application and
supplemental responses and, for these
preliminarily results, we find that
Huahui has demonstrated both de jure
and de facto independence from the
PRC government with respect to its
export activities. Consistent with the
Department’s requirements on exporters
requesting a separate rate, Huahui
placed numerous documents on the
record that have been examined for
these preliminary results. Specifically,
Huahui demonstrated an absence of de
jure government control by the absence
of restrictive stipulations associated
with its business license and export
certificate of approval, and through
submission of pertinent legislative
enactments that protect the operational
and legal independence of companies
incorporated in the PRC.36 With respect
to de facto government control, Huahui:
(1) Certified that its export prices are
neither set by or subject to the approval
of a government agency; 37 (2) placed on
the record documents that demonstrate
an absence of government control over
the negotiation and signing of contracts
including documents related to price
negotiation for U.S. sales, and complete
sales and export documentation; 38 (3)
certified that it retains the proceeds of
its export sales and makes independent
decisions regarding the disposition of
profits and financing of losses and
provided financial statements with
record evidence from its Articles of
Association demonstrating the
independent distribution of profit; 39
and (4) certified that it has autonomy
from all levels of government and
government entities in making decisions
regarding the selection of management
and placed on the record its Articles of
Association, a number of board
resolutions and an internal management
selection proposal, which demonstrate
the independent selection of
management by the Board of
Directors.40
Although Petitioners have argued that
Huahui should be denied a separate rate
35 See Huahui’s Second Supplemental
Questionnaire Regarding the December 23, 2010
Separate Rate Application of Ningxia Huahui
Activated Carbon Co., Ltd., dated March 23, 2011
(‘‘Huahui Second Separate Rate Supplemental’’).
36 See Huahui Separate Rate Application at 8–11
and Exhibits 5 and 6.
37 See id. at 17.
38 See id. at Exhibits 2 and 3.
39 See id. at 20 and Exhibits 9 and 11.
40 See id. at 13 and Exhibit 13; see also Huahui
Second Separate Rate Supplemental at 2–3 and
Exhibits 1 and 2.
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23983
because it does not fulfill the criteria for
establishing autonomy from de facto
government control of its selection of
management and disposition of profits,
the evidence on the record of this
review demonstrates that Huahui does
have the ability, and has exercised its
ability, to appoint its managers and
control the disposition of its profits
through its Board of Directors. With
respect to the selection of management,
the Department has previously found
that management selected and
appointed by an independent board of
directors is sufficiently removed from
government-controlled shareholders for
the purpose of demonstrating the
absence of de facto government
control.41 Furthermore, the Articles of
Association submitted by Huahui
clearly state that its shareholders have
the right to approve profit distributions
by voting according to the number of
shares owned.42 In this case, Petitioners
have provided information that
addresses speculative and potential
control by government entities over
Huahui, which the Department has
found is not sufficient evidence to
support denying a separate rate.43 There
is no evidence on the record of actual
government control of individual export
decisions of Huahui during the POR, or
evidence demonstrating that
government owned or controlled
shareholders actually controlled the
selection of Huahui’s management in
greater proportion to their proportion of
the voting shares. Furthermore, the
Department has previously determined
that government ownership alone does
not warrant denying a company a
separate rate.44 Therefore, based on an
analysis of all of the information placed
on the record of this review by Huahui
and Petitioners, we preliminarily find
that Huahui is eligible for a separate
rate, and we are granting Huahui
separate rate status for these preliminary
results.
41 See Certain New Pneumatic Off-The-Road Tires
from the People’s Republic of China: Final
Affirmative Determination of Sales at Less Than
Fair Value and Partial Affirmative Determination of
Critical Circumstances, 73 FR 40485 (July 15, 2008)
and accompanying Issues and Decision
Memorandum at Comment 25.
42 See Huahui Second Separate Rate
Supplemental at 9; see also Huahui Separate Rate
Application at Exhibit 9.
43 See Certain Circular Welded Carbon Quality
Steel Line Pipe from the People’s Republic of China:
Final Determination of Sales at Less Than Fair
Value, 74 FR 14514 (March 31, 2009), and
accompanying Issues and Decision Memorandum at
Comment 11.
44 See e.g. Lightweight Thermal Paper From the
People’s Republic of China: Final Determination of
Sales at Less Than Fair Value, 73 FR 57329 (October
2, 2008) and accompanying Issues and Decision
Memorandum at Comment 7.
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Separate Rate Recipients
1. Wholly Foreign-Owned
Jacobi reported that it is wholly
owned by a company located in an ME
country, Sweden.45 Additionally, CCT
reported that it is wholly owned by a
company located in the United States.46
Therefore, there is no PRC ownership of
Jacobi or CCT and, because the
Department has no evidence indicating
that Jacobi or CCT are under the control
of the PRC, a separate rates analysis is
not necessary to determine whether they
are independent from government
control.47 Additionally, one of the
exporters under review not selected for
individual review, Tangshan Solid
Carbon Co., Ltd., demonstrated in its
separate-rate certification that it is 100
percent market-economy foreign
owned.48 Accordingly, the Department
has preliminarily granted separate rate
status to Jacobi, CCT, and Tangshan
Solid Carbon Co. Ltd.
2. Joint Ventures Between Chinese and
Foreign Companies or Wholly ChineseOwned Companies
Eight 49 of the separate rate applicants
in this administrative review stated that
they are either joint ventures between
Chinese and foreign companies or are
wholly Chinese-owned companies. In
accordance with its practice, the
Department has analyzed whether the
separate-rate applicants have
demonstrated the absence of de jure and
de facto governmental control over their
respective export activities.
srobinson on DSKHWCL6B1PROD with NOTICES
a. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
45 See Jacobi’s Section A Questionnaire Response
dated August 11, 2010, at 3.
46 See CCT’s Section A Questionnaire Response
dated October 27, 2010 at A–2.
47 See Brake Rotors From the People’s Republic of
China: Preliminary Results and Partial Rescission of
the Fourth New Shipper Review and Rescission of
the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001),
unchanged in Brake Rotors From the People’s
Republic of China: Final Results and Partial
Rescission of Fourth New Shipper Review and
Rescission of Third Antidumping Duty
Administrative Review, 66 FR 27063 (May 16,
2001); Notice of Final Determination of Sales at
Less Than Fair Value: Creatine Monohydrate From
the People’s Republic of China, 64 FR 71104
(December 20, 1999).
48 See Tangshan Solid Carbon Co. Ltd.’s Separate
Rate Certification dated July 27, 2010, at
Attachment 1.
49 These companies are: Beijing Pacific Activated
Carbon Products Co., Ltd.; Datong Municipal
Yunguang Activated Carbon Co., Ltd.; Ningxia
Guanghua Cherishment Activated Carbon Co., Ltd.;
Ningxia Huahui Activated Carbon Co., Ltd.; Shanxi
DMD Corporation; Shanxi Sincere Industrial Co.,
Ltd.; Shanxi Industry Technology Trading Co., Ltd.;
and Tianjin Maijin Industries Co., Ltd.
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whether an individual company may be
granted a separate rate: (1) An absence
of restrictive stipulations associated
with an individual exporter’s business
and export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) any other formal
measures by the government
decentralizing control of companies.50
The evidence provided by the eight
separate rate applicants supports a
preliminary finding of de jure absence
of government control based on the
following: (1) An absence of restrictive
stipulations associated with the
individual exporter’s business and
export licenses; (2) there are applicable
legislative enactments decentralizing
control of the companies; and (3) there
are formal measures by the government
decentralizing control of companies.51
b. Absence of De Facto Control
Typically the Department considers
four factors in evaluating whether each
respondent is subject to de facto
government control of its export
functions: (1) Whether the export prices
are set by or are subject to the approval
of a government agency; (2) whether the
respondent has authority to negotiate
and sign contracts and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses.52 The Department has
determined that an analysis of de facto
control is critical in determining
whether respondents are, in fact, subject
to a degree of government control which
would preclude the Department from
assigning separate rates. The evidence
provided by the eight separate rate
applicants supports a preliminary
finding of de facto absence of
government control based on the
following: (1) The companies set their
own export prices independent of the
government and without the approval of
a government authority; (2) the
companies have authority to negotiate
and sign contracts and other
agreements; (3) the companies have
autonomy from the government in
50 See
Sparklers, 56 FR at 20589.
e.g., Shanxi Industry Technology Trading
Co., Ltd.’s Separate Rate Certification dated July 21,
2010, at 8; and Shanxi DMD Corporation’s Separate
Rate Certification dated July 21, 2010, at 8.
52 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).
51 See,
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making decisions regarding the
selection of management; and (4) there
is no restriction on any of the
companies’ use of export revenue.53
Rate for Non-Selected Companies
As stated previously, this review
covers eighteen companies. Of those,
the Department selected two exporters,
CCT and Jacobi, as mandatory
respondents. As stated above, five
companies, Datong Juqiang Activated
Carbon Co., Ltd.; Datong Yunguang
Chemicals Plant; Hebei Foreign Trade
and Advertising Corporation; Shanxi
Newtime Co., Ltd.; and United
Manufacturing International (Beijing)
Ltd. are part of the PRC–Wide entity
and, thus, are not entitled to a separate
rate. Additionally, we are preliminarily
rescinding the review with respect to
Ningxia Lingzhou Foreign Trade Co.,
Ltd. because we determined that it had
no shipments of subject merchandise to
the United States during the POR. The
remaining eight companies submitted
timely information as requested by the
Department and remain subject to this
review as cooperative separate rate
respondents.
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. Section 735(c)(5)(A) of the Act
instructs that we are not to calculate an
all-others rate using any zero or de
minimis margins or any margins based
entirely on facts available. Accordingly,
the Department’s practice in this regard,
in reviews involving limited respondent
selection based on exporters accounting
for the largest volume of trade, has been
to average the rates for the selected
companies, excluding zero and de
minimis rates and rates based entirely
on facts available.54 Section 735(c)(5)(B)
53 See, e.g., Shanxi Industry Technology Trading
Co., Ltd.’s Separate Rate Certification dated July 21,
2010, at 8–9; and Shanxi DMD Corporation’s
Separate Rate Certification dated July 21, 2010, at
8–9. Therefore, the Department preliminarily finds
that Huahui and nine separate-rate applicants have
established that they qualify for a separate rate
under the criteria established by Silicon Carbide
and Sparklers.
54 See Certain Frozen Warmwater Shrimp From
the Socialist Republic of Vietnam: Final Results and
Final Partial Rescission of Antidumping Duty
Administrative Review, 73 FR 52273, 52275
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of the Act also provides that, where all
margins are zero, de minimis, or based
entirely on facts available, we may use
‘‘any reasonable method’’ for assigning
the rate to non-selected respondents,
including ‘‘averaging the estimated
weighted average dumping margins
determined for the exporters and
producers individually investigated.’’ In
this instance, consistent with our
practice, we have preliminarily
established a margin for the separate
rate respondents based on the rate we
calculated for the mandatory respondent
whose rate was not de minimis.55 For
the PRC-wide entity, we have assigned
the entity’s current rate and only rate
ever determined for the entity in this
proceeding.
Date of Sale
CCT and Jacobi reported the invoice
date as the date of sale because they
claim that for their U.S. sales of subject
merchandise made during the POR, the
material terms of sale were established
on the invoice date. In accordance with
19 CFR 351.401(i) and the Department’s
long-standing practice of determining
the date of sale,56 the Department
preliminarily determines that the
invoice date is the most appropriate
date to use as CCT’s and Jacobi’s date of
sale.
Fair Value Comparisons
To determine whether sales of certain
activated carbon to the United States by
CCT and Jacobi were made at less than
normal value, the Department compared
constructed export price (‘‘CEP’’) to NV,
as described in the ‘‘U.S. Price,’’ and
‘‘Normal Value’’ sections below.
U.S. Price
srobinson on DSKHWCL6B1PROD with NOTICES
Constructed Export Price
For all of CCT and Jacobi’s sales, the
Department based U.S. price on CEP in
accordance with section 772(b) of the
Act, because sales of Chinese-origin
merchandise were made on behalf of the
companies located in the PRC by a U.S.
affiliate to unaffiliated purchasers in the
United States. For these sales, the
Department based CEP on prices to the
(September 9, 2008) and accompanying Issues and
Decision Memorandum at Comment 6.
55 See, e.g., Forth Administrative Review of
Certain Frozen Warrnwater Shrimp From the
People’s Republic of China: Preliminary Results,
Preliminary Partial Rescission of Antidumping Duty
Administrative Review and Intent Not To Revoke,
In Part, 75 FR 11855 (March 12, 2010).
56 See, e.g., Notice of Final Determination of Sales
at Less Than Fair Value and Negative Final
Determination of Critical Circumstances: Certain
Frozen and Canned Warmwater Shrimp From
Thailand, 69 FR 76918 (December 23, 2004), and
accompanying Issues and Decision Memorandum at
Comment 10.
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first unaffiliated purchaser in the United
States. Where appropriate, the
Department made deductions from the
starting price (gross unit price) for
foreign movement expenses,
international movement expenses, U.S.
movement expenses, and appropriate
selling adjustments, in accordance with
section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1)
of the Act, the Department also
deducted those selling expenses
associated with economic activities
occurring in the United States. The
Department deducted, where
appropriate, commissions, inventory
carrying costs, interest revenue, credit
expenses, warranty expenses, and
indirect selling expenses. For those
expenses that were provided by an ME
provider and paid for in an ME
currency, the Department used the
reported expense. Due to the proprietary
nature of certain adjustments to U.S.
price, for a detailed description of all
adjustments made to U.S. price for each
company, see the company specific
analysis memoranda, dated
concurrently with this notice.
CCT also requested that the
Department apply the ‘‘special rule’’ for
merchandise with value added after
importation and excuse CCT from
reporting U.S. re-sales of subject
merchandise further processed by
Calgon Carbon Corporation (‘‘CCC’’),
CCT’s U.S. parent company, in the
United States and the U.S. furtherprocessing cost information associated
with those re-sales. CCT made this
request with respect to all categories of
U.S. sales with further manufacturing
and provided further-processing cost
data.57
The Department preliminarily
determines to apply the ‘‘special rule’’
under section 772(e) of the Act for
merchandise with value added after
importation to the sales made by CCC in
the United States. Section 772(e) of the
Act provides that, when the subject
merchandise is imported by an affiliated
person and the value-added in the
United States by the affiliated person is
likely to exceed substantially the value
of the subject merchandise, the
Department shall determine the CEP for
such merchandise using the price to an
unaffiliated party of identical or other
subject merchandise if there is a
sufficient quantity of sales to provide a
reasonable basis for comparison, and the
Department determines that the use of
such sales is appropriate. If there is not
57 See CCT’s Section A Questionnaire Response
dated October 27, 2010, at Exhibit 11; see also
CCT’s Supplemental Section A Questionnaire
Response dated December 6, 2010 at Exhibit A–14.
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a sufficient quantity of such sales or if
the Department determines that using
the price to an unaffiliated party of
identical or other subject merchandise is
not appropriate, the Department may
use any other reasonable basis to
determine the CEP.
To determine whether the valueadded is likely to exceed substantially
the value of the subject merchandise,
the Department estimated the value
added based on the difference between
the averages of the prices charged to the
first unaffiliated purchaser for the
merchandise as sold in the United
States and the averages of the prices
paid for the subject merchandise by the
affiliated purchaser, CCC. Based on the
information provided by CCT and the
Department’s analysis of this
information, the Department determined
that the estimated value added in the
United States by CCC accounted for at
least 65 percent of the price charged to
the first unaffiliated customer for the
merchandise as sold in the United
States.58 Therefore, the Department
preliminarily determines that the value
added is likely to exceed substantially
the value of the subject merchandise.
For CCT, the Department
preliminarily determines that the
remaining quantity of sales of identical
or other subject merchandise to
unaffiliated persons are sufficient to
provide a reasonable basis for
comparison and that the use of these
sales is appropriate as a basis for
calculating margins of dumping on the
further processed merchandise.59
Accordingly, the Department has
determined to apply the ‘‘special rule’’ to
CCT’s sales of subject merchandise that
were further processed by CCC in the
United States. Furthermore, the
Department has excused CCT from
reporting these U.S. sales and the U.S.
further-processing cost information
associated with the sales. In the Special
Rule Memo, the Department stated that
it would apply the weight-averaged
margin from CCT’s non-further
manufactured U.S. sales to the quantity
58 See 19 CFR 351.402(c); see also Antifriction
Bearings (Other Than Tapered Roller Bearings) and
Parts Thereof From France, Germany, Italy, Japan,
Sweden, and the United Kingdom: Final Results of
Antidumping Duty Administrative Reviews and
Revocation of Orders in Part, 66 FR 36551, 36555
(July 12, 2001) and accompanying Issues and
Decision Memorandum at Comment 28 (‘‘AFBs’’).
59 See section 772(e) of the Act; see also AFBs;
Memorandum to James C. Doyle, Director, AD/CVD
Operations, Office 9, through Catherine Bertrand,
Program Manager, AD/CVD Operations, Office 9,
from Bob Palmer, Case Analyst, Office 9: Special
Rule for Merchandise with Value Added after
Importation for the Antidumping Duty
Administrative Review of Certain Activated Carbon
from the People’s Republic of China, dated January
5, 2011 (‘‘Special Rule Memo’’).
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of CCC’s U.S. further manufactured
sales.60 However, the Department
intended to explain that it would apply
the weight-averaged margin calculated
based upon CCT’s U.S. sales to the first
unaffiliated customer as the surrogate
margin to the transactions to which the
‘‘special rule’’ applied. The latter
methodology was applied in Activated
Carbon AR 1, when we last granted CCT
this ‘‘special rule’’ exemption.61
Therefore, for these preliminary results,
we are applying the weight-averaged
margin as was intended.
Normal Value
Section 773(c)(1) of the Act provides
that the Department shall determine the
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
the FOPs because the presence of
government controls on various aspects
of non-market economies renders price
comparisons and the calculation of
production costs invalid under the
Department’s normal methodologies.
FOP Reporting Exclusions
As stated above, the Department
granted exclusions for certain nominal
producers to be excused from providing
FOP data for CCT and Jacobi. As the
corresponding U.S. sales of the subject
merchandise supplied by the excused
producers were reported in the U.S.
sales listing, the Department has applied
the calculated average normal value of
the subject merchandise produced by
CCT and Jacobi, respectively, as facts
available, to those sales observations
associated with the excluded
producers.62
CCT’s Control Number (‘‘CONNUM’’)
Reporting Methodology
CCT has reported that neither it nor
its individual producers can provide
FOP data based on all 15 product
characteristics which comprise the
CONNUM.63 Rather, CCT and its
individual producers have reported FOP
consumption data based on 11 of the 15
60 See
Special Rule Memo at 5.
First Administrative Review of Certain
Activated Carbon from the People’s Republic of
China: Final Results of Antidumping Duty
Administrative Review, 74 FR 57995 (November 10,
2009) (‘‘Activated Carbon AR1’’) and accompanying
Issues and Decisions Memorandum at Comment 7;
see also CCT Prelim Analysis Memo.
62 See Jacobi Prelim Analysis Memo; see also CCT
Prelim Analysis Memo.
63 See CCT’s Supplemental Section D
Questionnaire Response dated January 14, 2011, at
3.
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61 See
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CONNUM product characteristics which
CCT tracks through its product codes
and is the basis on which CCT reported
its weighted-average calculation of its
producers’ FOP consumption.64
However, CCT states that it and its
producers, in the ordinary course of
business, need not, and do not, track
data during the production process for
the remaining four product
characteristics, but test for these four
characteristics prior to shipment.65 CCT
has provided detailed and potentially
verifiable information on the standards
used in the ordinary course of business
by CCT and its producers.66 In addition,
CCT has provided samples of FOP
consumption data, reconciliation
worksheets, and FOP source
documentation used in the ordinary
course of business by its producers.67
CCT has explained that each of its
producers maintains records on the
consumption of all raw materials.
Further, CCT states that there is no way
to link all 15 product characteristics of
the finished products to the material
inputs throughout the production
process because each of its producers
sets out to produce a particular product
based on its own specific product
definition. Production inputs,
consumption quantities and other
relevant data are only tracked on this
basis. CCT notes that its producers do
not track data during the production
process for four product characteristics:
apparent density, hardness, abrasion,
and ash content.68 CCT further explains
that these four product characteristics
are not relevant to the production of
each producer’s products and none of
the producers tracks production inputs,
consumption quantities or other
relevant data on the basis of these four
64 Those 11 product characteristics are: (1)
Physical material; (2) form; (3) oversize mesh; (4)
undersize mesh; (5) PAC mesh; (6) particle size; (7)
pellet diameter; (8) carbon tetrachloride (‘‘CTC’’); (9)
iodine; (10) wash type; and (11) impregnation. See
CCT’s Supplemental Section D Questionnaire
Response dated January 14, 2011, at 3.
65 See CCT’s Supplemental Section D
Questionnaire Response dated January 14, 2011, at
4.
66 See e.g., CCT’s Supplemental Section D
Questionnaire Responses dated January 6 and 14,
2011.
67 See e.g., CCT’s Supplemental Section D
Questionnaire Response dated January 6, 2010, at
HQ–12 and Exhibit HQ–26, HQ–31, HQ–34 and JB–
20; see also e.g., CCT’s Supplemental Section D
Questionnaire Response dated January 14, 2010, at
7 and Exhibit DCC–17, DCC–18, DCC–21 and NC–
23.
68 We note that apparent density, abrasion and
ash content are three product characteristics are
components of the 15 product characteristic
CONNUM. Additionally, one product characteristic
CTC test (CTESTU) indicates where CTC test or
another test was used.
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characteristics.69 Moreover, CCT states
the four product characteristics above
are testing specifications which are
expressed in terms of minimum and
maximum values, which correspond to
a range of potential actual
characteristics for any particular
product produced; it is therefore
sufficient to ensure that each of the four
characteristics is within the established
characteristic-specific range. As such,
during the production process none of
the companies tracks the specific value
for each of these four characteristics.70
However, CCT states that it has
provided its FOP data based on as much
detail as the accounting books and
records of itself and its producers’
would allow.71 Therefore, the
Department preliminarily determines
that CCT’s FOP reporting methodology
is sufficient to preliminarily calculate
an accurate dumping margin.
Petitioner Norit argues that in
Activated Carbon AR1, the Department
has previously notified CCT that it must
provide CONNUM-specific FOP data in
subsequent reviews, but it has
continued to report FOP data on its
product codes.72 While we note that that
in Activated Carbon AR1, we placed
CCT on notice that it should begin to
track all records generated in the normal
course of business that would allow
CCT and its producers to report FOP
consumption in future segments of this
proceeding taking into account as many
CONNUM characteristics as possible,
we further note that because our final
results of Activated Carbon AR1
occurred eight months into the current
POR, it is unreasonable to expect CCT
and its producers to adjust the manner
in which they maintain their records in
order to report FOPs on a CONNUMspecific basis for the remaining four
months of the current POR.73 However,
we are providing a second and final
notice that CCT and other respondents
must maintain their records in a manner
that they can report FOPs on a
69 See CCT’s Supplemental Section D
Questionnaire Response dated January 14, 2011 at
3–6.
70 See id.
71 See id.
72 See Letter from Petitioners to the Department
re: Third Administrative Review of the
Antidumping Duty Order on Certain Activated
Carbon from the People’s Republic of China: Norit
America’s Comments on CCT’s Questionnaire
Response, dated December 10, 2010.
73 See Activated Carbon AR1 and accompanying
Issues and Decisions Memorandum at Comment 4;
see also Certain Circular Welded Carbon Quality
Steel Line Pipe from the People’s Republic of China:
Final Determination of Sales at Less Than Fair
Value, 74 FR 14514 (March 31, 2009) and
accompanying Issues and Decision Memorandum at
Comment 1.
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CONNUM-specific basis for future
reviews.74
Factor Valuations
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In accordance with 19 CFR
351.408(c)(1), the Department will
normally use publicly available
information to value the FOPs, but
when a producer sources an input from
an ME country and pays for it in an ME
currency, the Department may value the
factor using the actual price paid for the
input.75 During the POR, Jacobi reported
that it purchased certain inputs from an
ME supplier and paid for the inputs in
an ME currency.76 The Department has
a rebuttable presumption that ME input
prices are the best available information
for valuing an input when the total
volume of the input purchased from all
ME sources during the period of
investigation or review exceeds 33
percent of the total volume of the input
purchased from all sources during the
period.77 In these cases, unless casespecific facts provide adequate grounds
to rebut the Department’s presumption,
the Department will use the weighted
average ME purchase price to value the
input. Alternatively, when the volume
of an NME firm’s purchases of an input
from ME suppliers during the period is
below 33 percent of its total volume of
purchases of the input during the
period, but where these purchases are
otherwise valid and there is no reason
to disregard the prices, the Department
will weight-average the ME purchase
price with an appropriate surrogate
value according to their respective
shares of the total volume of purchases,
unless case-specific facts provide
adequate grounds to rebut the
presumption.78 When a firm has made
ME input purchases that may have been
dumped or subsidized, are not bona
fide, or are otherwise not acceptable for
use in a dumping calculation, the
Department will exclude them from the
numerator of the ratio to ensure a fair
determination of whether valid ME
74 See Certain Tissue Paper Products from the
People’s Republic of China: Final Results and Final
Rescission, in Part, of Antidumping Duty
Administrative Review, 73 FR 58113 (October 6,
2008) and accompanying Issues and Decision
Memorandum at Comment 2.
75 See Lasko Metal Products, Inc. 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).
76 See Jacobi’s Section D Questionnaire Response
dated September 17, 2010, at Exhibit C, page D–9.
77 See Antidumping Methodologies: Market
Economy Inputs, Expected Non-Market Economy
Wages, Duty Drawback; and Request for Comments,
71 FR 61716, 61717–18 (October 19, 2006)
(‘‘Antidumping Methodologies’’).
78 See Antidumping Methodologies.
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purchases meet the 33-percent
threshold.79
The Department used the Indian
Import Statistics to value the raw
material and packing material inputs
that CCT and Jacobi used to produce the
subject merchandise under review
during the POR, except where listed
below. With regard to both the Indian
import-based surrogate values and the
ME input values, the Department has
disregarded prices that the Department
has reason to believe or suspect may be
subsidized. The Department has reason
to believe or suspect that prices of
inputs from Indonesia, South Korea, and
Thailand may have been subsidized.
The Department has found in other
proceedings that these countries
maintain broadly available, nonindustry-specific export subsidies and,
therefore, it is reasonable to infer that all
exports to all markets from these
countries may be subsidized.80 The
Department is also guided by the
statute’s legislative history that explains
that it is not necessary to conduct a
formal investigation to ensure that such
prices are not subsidized.81 Rather, the
Department bases its decision on
information that is available to it at the
time it makes its determination.82
Therefore, the Department has not used
prices from these countries in
calculating the Indian import-based
surrogate values. Additionally, the
Department disregarded prices from
NME countries. Finally, imports that
were labeled as originating from an
‘‘unspecified’’ country were excluded
from the average value, as the
Department could not be certain that
79 See
id.
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam: Preliminary Results
and Preliminary Partial Rescission of Antidumping
Duty Administrative Review, 70 FR 54007, 54011
(September 13, 2005), unchanged in Certain Frozen
Fish Fillets From the Socialist Republic of Vietnam:
Final Results of the First Administrative Review, 71
FR 14170 (March 21, 2006); China Nat’l Machinery
Import & Export Corp. v. United States, 293 F.
Supp. 2d 1334 (CIT 2003), as affirmed by the
Federal Circuit, 104 Fed. Appx. 183 (Fed. Cir.
2004).
81 See Omnibus Trade and Competitiveness Act of
1988, Conference Report to accompany H.R. Rep.
100–576 at 590 (1988) reprinted in 1988
U.S.C.C.A.N. 1547, 1623–24; see also Preliminary
Determination of Sales at Less Than Fair Value:
Coated Free Sheet Paper from the People’s Republic
of China, 72 FR 30758, 30763 n.6 (June 4, 2007),
unchanged in Final Determination of Sales at Less
Than Fair Value: Coated Free Sheet Paper from the
People’s Republic of China, 72 FR 60632 (October
25, 2007).
82 See Polyethylene Terephthalate Film, Sheet,
and Strip from the People’s Republic of China:
Preliminary Determination of Sales at Less Than
Fair Value, 73 FR 24552, 24559 (May 5, 2008),
unchanged in Polyethylene Terephthalate Film,
Sheet, and Strip from the People’s Republic of
China: Final Determination of Sales at Less Than
Fair Value, 73 FR 55039 (September 24, 2008).
80 See
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23987
they were not from either an NME
country or a country with general export
subsidies.83
In accordance with section 773(c) of
the Act, for subject merchandise
produced by CCT and Jacobi, the
Department calculated NV based on the
FOPs reported by CCT and Jacobi for the
POR. The Department used data from
the Indian Import Statistics and other
publicly available Indian sources in
order to calculate surrogate values for
CCT’s and Jacobi’s FOPs (direct
materials, energy, and packing
materials) and certain movement
expenses. To calculate NV, the
Department multiplied the reported perunit factor quantities by publicly
available Indian surrogate values
(except as noted below). The
Department’s practice when selecting
the best available information for
valuing FOPs is to select, to the extent
practicable, surrogate values which are
product-specific, representative of a
broad market average, publicly
available, contemporaneous with the
POR and exclusive of taxes and duties.84
As appropriate, the Department
adjusted input prices by including
freight costs to render the prices
delivered prices. Specifically, the
Department 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. 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 CCT and Jacobi, see Memorandum to
the File through Catherine Bertrand,
Program Manager, Office 9, from Katie
Marksberry, Case Analyst; Re: Third
Administrative Review of Certain
Activated Carbon from the People’s
Republic of China: Surrogate Values for
the Preliminary Results, dated
concurrently with this notice (‘‘Prelim
Surrogate Value Memo’’).
In those instances where the
Department could not obtain publicly
available information contemporaneous
to the POR with which to value factors,
the Department adjusted the surrogate
values using, where appropriate, the
Indian Wholesale Price Index as
published in the International Financial
Statistics of the International Monetary
Fund, a printout of which is attached to
83 See
id.
e.g., Electrolytic Manganese Dioxide From
the People’s Republic of China: Final Determination
of Sales at Less Than Fair Value, 73 FR 48195
(August 18, 2008) and accompanying Issues and
Decision Memorandum at Comment 2.
84 See,
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the Prelim Surrogate Value Memo at
Exhibit 2. Where necessary, the
Department adjusted surrogate values
for inflation, exchange rates, and taxes,
and the Department converted all
applicable items to a per-kilogram or
per-metric ton basis.
For bituminous coal used as a
feedstock in the production of the
subject merchandise, the Department
used Indian import prices for coking
coal, because the respondents reported
using low-ash content bituminous coal
as a feedstock in the production of the
subject merchandise and Coal India
Limited (‘‘CIL’’) data do not provide
price data for low-ash content
bituminous coal. See Prelim Surrogate
Value Memo. The Department used CIL
data to value steam coal and bituminous
coal used as an energy source, where the
manufacturers provided useful heat
values (‘‘UHV’’) and ash contents of their
bituminous energy coal and steam coal.
The Department finds that CIL data have
specific grades of non-coking energy
coal, measured in UHV, which
correspond to the types of steam and
bituminous coal used by the
respondents as energy coals. Therefore,
CIL is more specific to the reported
input. The Department used CIL’s prices
dated from December 12, 2007, effective
throughout the majority of the POR. For
further details regarding the
Department’s use of CIL data, see Prelim
Surrogate Value Memo.
The Department valued electricity
using price data for small, medium, and
large industries, as published by the
Central Electricity Authority of the
Government of India in its publication
titled ‘‘Electricity Tariff & Duty and
Average Rates of Electricity Supply in
India’’, dated March 2008. These
electricity rates represent actual
country-wide, publicly available
information on tax-exclusive electricity
rates charged to industries in India. 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.85
Because water is essential to the
production process of the subject
merchandise, the Department is
considering water to be a direct material
input, and not as overhead, and valued
water with a surrogate value according
to our practice.86 The Department
valued water using data from the
Maharashtra Industrial Development
85 See
Prelim Surrogate Value Memo.
Final Determination of Sales at Less Than
Fair Value and Critical Circumstances: Certain
Malleable Iron Pipe Fittings From the People’s
Republic of China, 68 FR 61395 (October 28, 2003)
and accompanying Issues and Decision
Memorandum at Comment 11.
86 See
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Corporation (https://www.midcindia.org)
as it includes a wide range of industrial
water tariffs. This source provides 386
industrial water rates within the
Maharashtra province from April 2009
through June 2009, of which 193 for the
‘‘inside industrial areas’’ usage category
and 193 for the ‘‘outside industrial
areas’’ usage category.87
Consistent with our practice in
previous reviews, the Department
calculated the surrogate value for
purchased steam based upon the April
2008 through March 2009 financial
statement of Hindalco Industries
Limited.88
The Department valued truck freight
expenses using a per-unit average rate
calculated from data on the Infobanc
Web site: https://www.infobanc.com/
logistics/logtruck.htm. The logistics
section of this website contains inland
freight truck rates between many large
Indian cities.89
To value brokerage and handling, the
Department used 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.90
To value factory overhead, selling,
general, and administrative (‘‘SG&A’’)
expenses, and profit, the Department
used the average of the audited financial
statements of two Indian activated
carbon producing companies: Kalpalka
Chemicals Ltd. for FY 2007–2008
(‘‘Kalpalka’’) and Quantum Active
Carbon Pvt. Ltd. (‘‘Quantum’’) for 2007–
2008.91
Jacobi submitted the 2009–2010
financial statements of Adsorbent
Carbons Pvt. Ltd. (‘‘Adsorbent’’) for the
Department’s use in calculating
surrogate financial ratios. We have
determined not to rely on the 2009–
2010 financial statement of Adsorbent
because it indicates that it received a
‘‘Capital Subsidy’’.92 The Department
has found India’s Capital Subsidy to be
87 See
Prelim Surrogate Value Memo at 8–9.
Jacobi’s Surrogate Value Comments:
Certain Activated Carbon form China, dated January
14, 2011, at Exhibit SV–7.
89 See Prelim Surrogate Value Memo at
Attachment 8.
90 See id. at Attachment 9.
91 Both the FY 07–08 financial statements for
Quantum and the FY 07–08 financial statements for
Kalpalka Chemicals Ltd. were placed on the record
by Petitioners. See Prelim Surrogate Value Memo.
92 See Annual Report Adsorbent Carbons Private
Limited 2009–2010, contained in Jacobi’s February
7, 2011 Resubmission of Surrogate Financial Ratios.
88 See
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a countervailable subsidy.93 Consistent
with the Department’s practice, we
prefer not to use financial statements of
a company we have reason to believe or
suspect may have received subsidies,
because financial ratios derived from
that company’s financial statements
may not constitute the best available
information with which to value
financial ratios.94 Therefore, pursuant to
19 CFR 351.408(c), the Department
preliminarily determines that the 2007–
2008 financial statements of Quantum
and the 2007–2008 financial statements
of Kalpalka provide the best available
information with which to calculate
surrogate financial ratios, because they
are complete and publicly available.
Additionally, both of these companies
produce comparable merchandise and
use an integrated carbonization
production process which closely
mirrors that of both respondents. We
prefer to use more than one financial
statement where possible to replicate
the experience of producers of certain
activated carbon in the surrogate
country.95 While the Department
recognizes Quantum’s and Kalpalka’s
financial statements both pre-date the
POR, we find that neither company’s
financial statements pre-date the POR so
significantly as not to be useful.96
Therefore, the Department has used
these financial statements to value
factory overhead, SG&A, and profit, for
these preliminary results.
On May 14, 2010, the Court of
Appeals for the Federal Circuit (‘‘CAFC)
in Dorbest Ltd. v. United States, 604
F.3d 1363, 1372 (CAFC 2010), found
that the ‘‘[regression-based] method for
calculating wage rates [as stipulated by
19 CFR 351.408(c)(3)] uses data not
permitted by [the statutory requirements
laid out in section 773 of the Act (i.e.,
19 U.S.C. 1677b(c))].’’ The Department is
continuing to evaluate options for
determining labor values in light of the
recent CAFC decision. However, for
these preliminary results, we have
calculated an hourly wage rate to use in
valuing the respondents’ reported labor
93 See Final Results of Countervailing Duty
Administrative Review: Polyethylene Terephthalate
Film, Sheet, and Strip from India, 71 FR 7534
(February 13, 2006).
94 See Freshwater Crawfish Tail Meat from the
People’s Republic of China: Notice of Final Results
And Rescission, In Part, of 2004/2005 Antidumping
Duty Administrative Review and New Shipper
Reviews, 72 FR 19174 (April 17, 2007) and
accompanying Issues and Decision Memorandum at
Comment 1.
95 See Folding Metal Tables and Chairs from the
People’s Republic of China: Final Results of
Antidumping Duty Administrative Review, 72 FR
71355 (December 17, 2007) and accompanying
Issues and Decision Memorandum at Comment 1.
96 See Hebei Metals & Minerals v. United States,
366 F. Supp. 2d 1264, 1275 (Ct. Int’l Trade 2005).
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input by averaging industry-specific
earnings and/or wages in countries that
are economically comparable to the PRC
and that are significant producers of
comparable merchandise.
For the preliminary results of this
administrative review, the Department
is valuing labor using a simple average
industry-specific wage rate using
earnings or wage data reported under
Chapter 5B by the International Labor
Organization (‘‘ILO’’). To achieve an
industry-specific labor value, we relied
on industry-specific labor data from the
countries we determined to be both
economically comparable to the PRC,
and significant producers of comparable
merchandise. A full description of the
industry-specific wage rate calculation
methodology is provided in the Prelim
Surrogate Value Memo. The Department
calculated a simple average industryspecific wage rate of $2.06 for these
preliminary results. Specifically, for this
review, the Department has calculated
the wage rate using a simple average of
the data provided to the ILO under SubClassification 24 of the ISIC–Revision 3
standard by countries determined to be
both economically comparable to the
PRC and significant producers of
comparable merchandise. The
Department finds the two-digit
description under ISIC–Revision 3
(‘‘Manufacture of Chemicals and
Chemical 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. Consequently, we
averaged the ILO industry-specific wage
rate data or earnings data available from
the following countries found to be
economically comparable to the PRC
and significant producers of comparable
merchandise: Ecuador, Egypt,
Indonesia, Jordan, Peru, the Philippines,
Thailand and Ukraine.97 For further
information on the calculation of the
wage rate, see Prelim Surrogate Values
Memo.
questionnaire dated November 3, 2010,
NXGH stated that the ‘‘water for acid
wash can’t be predicted or measured,’’
and that the water reported in its FOP
database is water used for the boiler
room and does not include all of the
water used in the production of subject
merchandise.98
On December 10, 2010, Petitioners
submitted comments to the Department
regarding Jacobi’s supplemental
questionnaire responses. In their
comments, Petitioners argued that
NXGH has a responsibility to maintain
detailed records of every stage of its
production process, and as it has
participated in multiple prior segments
of this proceeding, it is aware of this
requirement.99 Additionally, the
Department notes that NXGH has
participated in prior segments of this
case as one of Jacobi’s suppliers and
stated that it was able to report the full
amount of water used in the production
of subject merchandise.100 In this
review, Jacobi reported that it was not
able to report the full amount of water
used in production of subject
merchandise, and did not provide even
an estimate when the Department gave
it an opportunity to correct its reported
water usage for NXGH.101 Therefore,
because Jacobi has failed to cooperate to
the best of its ability in reporting the
total amount of water used in the
production of subject merchandise, as
requested by the Department, as partial
adverse facts available, for these
preliminary results the Department is
applying the highest single, per-unit
consumption of water reported by any
of Jacobi’s suppliers as the water used
by NXGH in the acid washing stage.102
Additionally, in their December 10,
2010, comments, Petitioners argued that
Jacobi’s packing affiliate, Jacobi Tianjin
International Trading Co., Ltd. (‘‘Jacobi
Tianjin’’), improperly accounted for the
water used in its administrative offices
and laboratory as overhead. Therefore,
Petitioners argue that the Department
Treatment of Jacobi’s Water Factors
For these preliminary results, we are
applying partial adverse facts available
to Jacobi’s supplier Ningxia Guanghua
Activated Carbon Co., Ltd. (‘‘NXGH’’).
The Department asked Jacobi to report
the full amount of water used in the
production of subject merchandise,
which it was able to do for its other
suppliers. In a supplemental
98 See Jacobi’s Response to the Supplemental
Section D Questionnaire for NXGH and Huahui,
dated November 3, 2010, at 11–12.
99 See Letter to the Department from Petitioners;
Re: Third Administrative Review of the
Antidumping Duty Order on Certain Activated
Carbon from the People’s Republic of China:
Petitioners’ Comments on Jacobi Carbons’ Recent
Supplemental Responses, dated December 10, 2010.
100 See Certain Activated Carbon From the
People’s Republic of China: Final Results and
Partial Rescission of Second Antidumping Duty
Administrative Review, 75 FR 70208 (November 17,
2010) and accompanying Issues and Decision
Memorandum at Comment 5a.
101 See Jacobi’s Response to the Supplemental
Section D Questionnaire for NXGH and Huahui,
dated November 3, 2010, at 11–12.
102 For further details, see Jacobi Prelim Analysis
Memo.
97 Although India is used as the primary surrogate
country for the other FOPs, India is not included
in the list of countries used to calculate the
industry-specific wage rate because there were no
earnings or wage data available from the ILO for the
applicable period.
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17:39 Apr 28, 2011
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23989
should include the water reported by
Jacobi Tianjin, as required by the
Department in a supplemental
questionnaire, in determining Jacobi
Tianjin’s total cost of manufacture.
However, as Jacobi Tianjin reported that
it only uses water in its laboratory, and
for these preliminary results, we find
that it is properly accounted for as
overhead.
Treatment of CCT’s Reported ByProducts
For these preliminary results, the
Department has found that nonactivated by-products, such as
pressroom powder and non-activated
fines, which were reported by CCT as
by-products produced during the
production of subject merchandise by
its unaffiliated producers, are eligible
for a byproduct offset. However, one of
CCT’s unaffiliated producers, Inner
Mongolia Taixi Coal Chemical Industry
Limited Company (‘‘TX’’), has reported
that it produces its own anthracite coal,
which is then used as an input in the
production of subject merchandise.
Although it is our general policy to
value all of the FOPs used to produce
subject merchandise, there are certain
exceptions. One such exception is
attempting to value the factors used in
a production process yielding an
intermediate product. This would lead
to an inaccurate result because a
significant element of cost would not be
adequately accounted for in the overall
factors buildup. For example, the
Department addressed whether to value
the respondent’s factors used in
extracting iron ore, an input to its wire
rod factory, in Steel Wire Rod from
Ukraine.103 The Department determined
that, if it were to use those factors, it
would not sufficiently account for the
capital costs associated with the iron ore
mining operation given that the
surrogate used for valuing production
overhead did not have mining
operations. Therefore, because ignoring
this important cost element would
distort the calculation, the Department
declined to value the inputs used in
mining iron ore and valued the iron ore
instead. Similarly, in this case, we did
not find it appropriate to obtain the
factors relevant to the process of mining
anthracite coal, and are not valuing
103 See Drill Pipe From the People’s Republic of
China: Final Determination of Sales at Less Than
Fair Value and Critical Circumstances, 76 FR 1966
(January 3, 2011) and accompanying Issues and
Decision Memorandum at Comment 12; see also
Notice of Final Determination of Sales at Less Than
Fair Value: Carbon and Certain Alloy Steel Wire
Rod From Ukraine, 67 FR 55785 (August 30, 2002)
(‘‘Steel Wire Rod from Ukraine’’).
E:\FR\FM\29APN1.SGM
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Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Notices
those factors or including them in the
cost build-up of subject merchandise.
Additionally, in CCT’s questionnaire
response for TX, it claimed that there
are four products (coal slurry, foam,
middlings, and tailings), which are byproducts of the production process of
anthracite coal. However, it is the
Department’s practice to only grant byproduct credits for by-products that are
produced directly as a result of the
production process of the subject
merchandise.104 Therefore, for these
preliminary results, we are not granting
CCT a by-product offset for the four
products produced by TX in the
production of anthracite coal.105
Currency Conversion
Where appropriate, the Department
made currency conversions into U.S.
dollars, in accordance with section
773A(a) of the Act, based on the
exchange rates in effect on the dates of
the U.S. sales, as certified by the Federal
Reserve Bank.
Preliminary Results of Review
srobinson on DSKHWCL6B1PROD with NOTICES
TheDepartment preliminarily
determines that the following weightedaverage dumping margins exist:
104 See e.g. id and accompanying Issues and
Decision Memorandum at Comment 5; see also
Final Determination of Sales at Less Than Fair
Value: Certain Cut-to-Length Carbon Steel Plate
From the People’s Republic of China, 62 FR 61964
(November 20, 1997) and accompanying Issues and
Decision Memorandum at Comment 44.
105 For more detail, see CCT Prelim Analysis
Memo.
106 In the second administrative review of this
order the Department determined that it would
calculate per-unit assessment and cash deposit rates
for all future reviews. See Certain Activated Carbon
From the People’s Republic of China: Final Results
and Partial Rescission of Second Antidumping Duty
Administrative Review, 75 FR 70208 (November 17,
2010).
107 The Department is assigning this rate to Jacobi
Carbons AB and Tianjin Jacobi International
Trading Co. Ltd.
108 In Activated Carbon AR1, the Department
found Beijing Pacific Activated Carbon Products
Co., Ltd., Ningxia Guanghua Cherishmet Activated
Carbon Co., Ltd. and Ningxia Guanghua Activated
Carbon Co., Ltd. are a single entity and, because
there were no changes from the previous review, we
continue to find these companies to be part of a
single entity. Therefore, we will assign this rate to
the companies in the single entity. See Certain
Activated Carbon From the People’s Republic of
China: Notice of Preliminary Results of the
Antidumping Duty Administrative Review and
Extension of Time Limits for the Final Results, 74
FR 21317 (May 7, 2009), unchanged in First
Administrative Review of Certain Activated Carbon
from the People’s Republic of China: Final Results
of Antidumping Duty Administrative Review, 74 FR
57995 (November 10, 2009).
109 The PRC–Wide entity includes Datong Juqiang
Activated Carbon Co., Ltd.; Datong Yunguang
Chemicals Plant; Hebei Foreign Trade and
Advertising Corporation; Shanxi Newtime Co., Ltd.;
and United Manufacturing International (Beijing)
Ltd.
VerDate Mar<15>2010
17:39 Apr 28, 2011
Jkt 223001
Margin
(dollars per
kilogram) 106
Exporter
Jacobi Carbons AB 107 ..........
Calgon Carbon (Tianjin) Co.,
Ltd .....................................
Beijing Pacific Activated Carbon Products Co., Ltd .......
Datong Municipal Yunguang
Activated Carbon Co., Ltd
Ningxia Guanghua
Cherishmet Activated Carbon Co., Ltd.108 .................
Ningxia Huahui Activated
Carbon Co., Ltd. ...............
Shanxi DMD Corporation .....
Shanxi Sincere Industrial
Co., Ltd .............................
Shanxi Industry Technology
Trading Co., Ltd ................
Tangshan Solid Carbon Co.,
Ltd .....................................
Tianjin Maijin Industries Co.,
Ltd .....................................
PRC-Wide Rate 109 ...............
* 0.00
0.05
0.05
0.05
0.05
0.05
0.05
0.05
0.05
0.05
0.05
2.42
* (de minimis).
Disclosure and Public Hearing
The Department will disclose to
parties the calculations performed in
connection with these preliminary
results within five days of the date of
publication of this notice.110 Interested
parties may submit case briefs and/or
written comments no later than 30 days
after the date of publication of these
preliminary results of review.111
Rebuttal briefs and rebuttals to written
comments, limited to issues raised in
such briefs or comments may be filed no
later than five days after the deadline for
filing case briefs.112 Parties who submit
case briefs or rebuttal briefs in this
proceeding are requested to submit with
each argument: (1) A statement of the
issue; (2) a brief summary of the
argument; and (3) a table of
authorities.113
In accordance with 19 CFR
351.301(c)(3)(ii), for the final results of
this administrative review, interested
parties may submit publicly available
information to value FOPs within 20
days after the date of publication of
these preliminary results. Interested
parties must provide the Department
with supporting documentation for the
publicly available information to value
each FOP. Additionally, pursuant to 19
CFR 351.310(c), interested parties who
wish to request a hearing, or to
participate if one is requested, must
submit a written request to the Assistant
Secretary for Import Administration,
Room 1117, within 30 days of the date
110 See
19 CFR 351.224(b).
19 CFR 351.309(c)(ii).
112 See 19 CFR 351.309(d).
113 See 19 CFR 351.309(c) and (d).
111 See
PO 00000
Frm 00022
Fmt 4703
Sfmt 4703
of publication of this notice. Requests
should contain: (1) The party’s name,
address and telephone number; (2) the
number of participants; and (3) a list of
issues to be discussed. Issues raised in
the hearing will be limited to those
raised in the respective case and
rebuttal briefs. The Department will
issue the final results of this
administrative review, including the
results of its analysis of the issues raised
in any written briefs, not later than 120
days after the date of publication of this
notice, pursuant to section 751(a)(3)(A)
of the Act.
Assessment Rates
Upon issuance of the final results, the
Department will determine, and CBP
shall assess, antidumping duties on all
appropriate entries covered by this
review. The Department intends to issue
assessment instructions to CBP 15 days
after the publication date of the final
results of this review. 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.
In this and future reviews, we will
direct CBP to assess importer-specific
assessment rates based on the resulting
per-unit (i.e., per-kilogram) rates by the
weight in kilograms of each entry of the
subject merchandise during the POR.
For the companies receiving a separate
rate that were not selected for
individual review, we will assign an
assessment rate based on rates
calculated in previous reviews as
discussed above.
For those companies for which this
review has been preliminarily
rescinded, the Department intends to
assess antidumping duties at rates equal
to the cash deposit of estimated
antidumping duties required at the time
of entry, or withdrawal from warehouse,
for consumption, in accordance with 19
CFR 351.212(c)(2), if the review is
rescinded for these companies. The
Department intends to issue appropriate
assessment instructions directly to CBP
15 days after publication of this notice.
Cash Deposit Requirements
The following cash deposit
requirements will be effective upon
publication of the final results of this
administrative review for all shipments
of the subject merchandise entered, or
withdrawn from warehouse, for
consumption on or after the publication
date, as provided for by section
751(a)(2)(C) of the Act: (1) For the
exporters listed above, the cash deposit
rate will be established in the final
results of this review (except, if the rate
is zero or de minimis, i.e., less than 0.5
E:\FR\FM\29APN1.SGM
29APN1
Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Notices
percent, no cash deposit will be
required for that company); (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 $2.42 per
kilogram; and (4) for all non-PRC
exporters of subject merchandise which
have not received their own rate, the
cash deposit rate will be the rate
applicable to the PRC exporters that
supplied that non-PRC exporter. These
deposit requirements, when imposed,
shall remain in effect until further
notice.
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Secretary’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
This determination is issued and
published in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19
CFR 351.221(b)(4).
Dated: April 22, 2011.
Paul Piquado,
Acting Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2011–10429 Filed 4–28–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
Subsidy Programs Provided by
Countries Exporting Softwood Lumber
and Softwood Lumber Products to the
United States; Request for Comment
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(Department) seeks public comment on
any subsidies, including stumpage
subsidies, provided by certain countries
exporting softwood lumber or softwood
lumber products to the United States
during the period July 1 through
December 31, 2010.
srobinson on DSKHWCL6B1PROD with NOTICES
AGENCY:
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17:39 Apr 28, 2011
Jkt 223001
Comments must be submitted
within thirty days after publication of
this notice.
ADDRESSES: Written comments (original
and six copies) should be sent to the
Secretary of Commerce, Attn: James
Terpstra, Import Administration, APO/
Dockets Unit, Room 1870, U.S.
Department of Commerce, 14th Street &
Constitution Ave., NW., Washington,
DC 20230.
FOR FURTHER INFORMATION CONTACT:
James Terpstra, Import Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone: (202)
482–3965.
SUPPLEMENTARY INFORMATION:
DATES:
Background
On June 18, 2008, section 805 of Title
VIII of the Tariff Act of 1930 (the
Softwood Lumber Act of 2008) was
enacted into law. Under this provision,
the Secretary of Commerce is mandated
to submit to the appropriate
Congressional committees a report every
180 days on any subsidy provided by
countries exporting softwood lumber or
softwood lumber products to the United
States, including stumpage subsidies.
The Department submitted its last
subsidy report on December 15, 2010.
As part of its newest report, the
Department intends to include a list of
subsidy programs identified with
sufficient clarity by the public in
response to this notice.
Request for Comments
Given the large number of countries
that export softwood lumber and
softwood lumber products to the United
States, we are soliciting public comment
only on subsidies provided by countries
whose exports accounted for at least one
percent of total U.S. imports of softwood
lumber by quantity, as classified under
Harmonized Tariff Schedule code
4407.1001 (which accounts for the vast
majority of imports), during the period
July 1 through December 31, 2010.
Official U.S. import data published by
the United States International Trade
Commission Tariff and Trade DataWeb
indicate that exports of softwood lumber
from Canada and Chile each account for
at least one percent of U.S. imports of
softwood lumber products during that
time period. We intend to rely on
similar previous six-month periods to
identify the countries subject to future
reports on softwood lumber subsidies.
For example, we will rely on U.S.
imports of softwood lumber and
softwood lumber products during the
period January 1 through June 30, 2011,
PO 00000
Frm 00023
Fmt 4703
Sfmt 4703
23991
to select the countries subject to the
next report.
Under U.S. trade law, a subsidy exists
where a government authority: (i)
Provides a financial contribution; (ii)
provides any form of income or price
support within the meaning of Article
XVI of the GATT 1994; or (iii) makes a
payment to a funding mechanism to
provide a financial contribution to a
person, or entrusts or directs a private
entity to make a financial contribution,
if providing the contribution would
normally be vested in the government
and the practice does not differ in
substance from practices normally
followed by governments, and a benefit
is thereby conferred. See section
771(5)(B) of the Tariff Act of 1930, as
amended.
Parties should include in their
comments: (1) The country which
provided the subsidy; (2) the name of
the subsidy program; (3) a brief (3–4
sentence) description of the subsidy
program; and (4) the government body
or authority that provided the subsidy.
Submission of Comment
Persons wishing to comment should
file a signed original and six copies of
each set of comments by the date
specified above. The Department will
not accept comments accompanied by a
request that a part or all of the material
be treated confidentially due to business
proprietary concerns or for any other
reason. The Department will return such
comments and materials to the persons
submitting the comments and will not
include them in its report on softwood
lumber subsidies. The Department also
requests submission of comments in
electronic form to accompany the
required paper copies. Comments filed
in electronic form should be submitted
on CD–ROM with the paper copies or by
e-mail to the Webmaster below.
Comments received in electronic form
will be made available to the public in
Portable Document Format (PDF) on the
Import Administration Web site at the
following address: https://ia.ita.doc.gov.
Any questions concerning file
formatting, document conversion,
access on the Internet, or other
electronic filing issues should be
addressed to Andrew Lee Beller, Import
Administration Webmaster, at (202)
482–0866, e-mail address: webmastersupport@ita.doc.gov.
All comments and submissions
should be mailed to James Terpstra,
Import Administration; Subject:
Softwood Lumber Subsidies Bi-Annual
Report: Request for Comment; Room
1870, U.S. Department of Commerce,
14th Street and Constitution Avenue,
NW., Washington, DC 20230, by no later
E:\FR\FM\29APN1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Notices]
[Pages 23978-23991]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10429]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-904]
Certain Activated Carbon From the People's Republic of China:
Preliminary Results of the Third Antidumping Duty Administrative
Review, and Preliminary Rescission in Part
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is conducting the
third administrative review of the antidumping duty order on certain
activated carbon from the People's Republic of China (``PRC'') for the
period April 1, 2009, through March 31, 2010. The Department has
preliminarily determined that sales have been made below normal value
(``NV'') by the respondents examined in this administrative review. If
these preliminary results are adopted in our final results of this
review, the Department will instruct U.S. Customs and Border Protection
(``CBP'') to assess antidumping duties on all appropriate entries of
subject merchandise during the period of review.
DATES: Effective Date: April 29, 2011.
FOR FURTHER INFORMATION CONTACT: Bob Palmer or Katie Marksberry, AD/CVD
Operations, Office 9, Import Administration, International Trade
Administration, Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230; telephone: (202) 482-9068 or (202)
482-7906, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department received timely requests from Petitioners \1\ and
certain PRC and other companies, in accordance with 19 CFR 351.213(b),
during the anniversary month of April, to conduct a review of certain
activated carbon exporters from the PRC. On May 28, 2010, and June 30,
2010, the
[[Page 23979]]
Department initiated this review with respect to all requested
companies with the exception of ten companies for which Petitioners did
not demonstrate that they had made a reasonable attempt to serve the
request for review as required by the Department in 19 CFR
351.303(f)(3)(ii), nor did they explain satisfactorily why they desired
a review of these ten companies, as required by 19 CFR
351.213(b)(1).\2\
---------------------------------------------------------------------------
\1\ Collectively, Norit Americas Inc. (``Norit'') and Calgon
Carbon Corporation.
\2\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 75 FR 29976 (May 28, 2010); see also
Initiation of Antidumping and Countervailing Duty Administrative
Reviews and Requests for Revocation in Part, 75 FR 37759 (June 30,
2010) (collectively, ``Initiation Notices'').
---------------------------------------------------------------------------
On June 15, 2010, Petitioners withdrew the request for review with
respect to 157 of the 192 companies under review. On August 11, 2010,
the Department published a notice of rescission in the Federal Register
for those 157 companies for which the request for review was
withdrawn.\3\ On July 8, 2010, Petitioners withdrew the request for
review with respect to an additional 17 companies. On August 23, 2010,
the Department published a second notice of rescission in the Federal
Register for those 17 companies.\4\ Eighteen companies remain subject
to this review.\5\ On July 27, 2010, Ningxia Lingzhou Foreign Trade
Co., Ltd. (``Lingzhou'') submitted a letter certifying it had no
shipments during the period of review (``POR'').\6\ On October 6, 2010,
the Department published a notice \7\ extending the time period for
issuing the preliminary results by 120 days to April 30, 2011.\8\
---------------------------------------------------------------------------
\3\ See Certain Activated Carbon From the People's Republic of
China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 48644 (August 11, 2010).
\4\ See Certain Activated Carbon from the People's Republic of
China: Notice of Partial Rescission of Antidumping Duty
Administrative Review, 75 FR 51754 (August 23, 2010).
\5\ These companies are: Beijing Pacific Activated Carbon
Products Co., Ltd., Calgon Carbon (Tianjin) Co., Ltd., Datong
Juqiang Activated Carbon Co., Ltd., Datong Municipal Yungang
Activated Caron Co., Ltd., Datong Yunguang Chemicals Plant, Hebei
Foreign Trade and Advertising Corporation, Jacobi Carbons AB,
Ningxia Guanghua Cherishment Activated Carbon Co., Ltd., Ningxia
Huahui Activated Carbon Co., Ltd., Ningxia Lingzhou Foreign Trade
Company, Shanxi DMD Corporation, Shanxi Newtime Co., Ltd., Shanxi
Sincere Industrial Co., Ltd., Shanxi Industry Technology Trading
Co., Ltd., Tangshan Solid Carbon Co., Ltd., Tianjin Jacobi
International Trading Co. Ltd., Tianjin Maijin Industries Co., Ltd.,
and United Manufacturing International (Beijing) Ltd.
\6\ Companies have the opportunity to submit statements
certifying that they did not ship the subject merchandise to the
United States during the POR.
\7\ See Certain Activated Carbon From the People's Republic of
China: Extension of Time Limits for Preliminary Results of the Third
Antidumping Duty Administrative Review, 75 FR 61697 (October 6,
2010).
\8\ Because April 30, 2011, is a Saturday, the actual deadline
for issuing the preliminary results falls on May 2, 2011, the next
business day.
---------------------------------------------------------------------------
Albemarle's Status as an Interested Party
On April 30, 2010, Albemarle Corporation (``Albemarle'') requested
a review of Calgon Carbon (Tianjin) Co., Ltd. (``CCT''). On May 27,
2010, Petitioners submitted comments disputing Albemarle's status as a
domestic interested party. On June 2, 2010, the Department issued a
questionnaire to Albemarle requesting further information regarding its
status as a wholesaler of the domestic like product. Albemarle
submitted its response to the Department's questionnaire on June 18,
2010. Petitioners submitted additional comments regarding Albemarle's
response on June 28, 2010. On August 11, 2010, the Department sent an
additional questionnaire to Albemarle requesting further information
regarding its status as a wholesaler of the domestic like product.
Albemarle submitted its response on August 18, 2010. On August 26,
2010, CCT submitted comments in response to Albemarle's additional
questionnaire response, and on August 27, 2010, Norit submitted
comments as well.
The Department considered Petitioners' comments, CCT's comments,
and Albemarle's submissions and determined that Albemarle is a
``wholesaler in the United States of a domestic like product.''
Therefore, under section 771(9)(C) of the Tariff Act of 1930, as
amended (``the Act''), the Department found that Albemarle is a
domestic interested party, and its request for a review of CCT is
proper pursuant to 19 CFR 351.213(b).\9\ We have not received
additional comments regarding Albemarle's status as an interested
party; therefore, we continue to find that Albemarle's request for a
review of CCT was proper.
---------------------------------------------------------------------------
\9\ For further discussion of Albemarle's status as a domestic
interested party, see Memorandum to James Doyle, Director, AD/CVD
Operations, Office 9, through Catherine Bertrand, Program Manager,
AD/CVD Operation Office 9, from Katie Marksberry, International
Trade Specialist, AD/CVD Operations, Office 9; Re: Antidumping Duty
Administrative Review of Certain Activated Carbon from the People's
Republic of China: Selection of Additional Mandatory Respondent,
dated September 29, 2010 (``Additional Respondent Selection Memo'').
---------------------------------------------------------------------------
Respondent Selection
Section 777A(c)(1) of the Act directs the Department to calculate
individual dumping margins for each known exporter or producer of the
subject merchandise.\10\ However, section 777A(c)(2) of the Act gives
the Department discretion to limit its examination to a reasonable
number of exporters or producers, if it is not practicable to examine
all exporters or producers for which the review is initiated.
---------------------------------------------------------------------------
\10\ See also 19 CFR 351.204(c) regarding respondent selection,
in general.
---------------------------------------------------------------------------
On May 28, 2010, the Department released CBP data for entries of
the subject merchandise during the POR under administrative protective
order (``APO'') to all interested parties having access to materials
released under APO inviting comments regarding the CBP data and
respondent selection. On June 4, 2010, the Department extended the
deadline for comments regarding the CBP data. The Department received
comments and rebuttal comments between June 7, 2010, and June 14, 2010.
On July 21, 2010, the Department issued its respondent selection
memorandum after assessing its resources, considering the number of
individual exporters of certain activated carbon for which a review had
been requested, and determining that it could reasonably examine two of
the exporters subject to this review.\11\ Pursuant to section
777A(c)(2)(B) of the Act, the Department selected Jacobi Carbons AB
(``Jacobi'') as a mandatory respondent. On September 29, 2010, based on
the determination that Albemarle Corporation is an interested party in
this review, the Department issued an additional respondent selection
memorandum selecting CCT as a mandatory respondent.\12\
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\11\ See Memorandum to James Doyle, Director, AD/CVD Operations,
Office 9, from Kabir Archuletta and Jamie Blair-Walker,
International Trade Compliance Analysts, Office 9; Antidumping Duty
Administrative Review of Certain Activated Carbon from the PRC:
Selection of Respondents for Individual Review, dated July 21, 2010.
\12\ See Additional Respondent Selection Memo.
---------------------------------------------------------------------------
Petitioners' Allegations of Third-Country Sales Made by Jacobi
On October 12, 2010, and November 1, 2010, Petitioners submitted
comments requesting that the Department require Jacobi to revise its
Section C database to include sales of subject merchandise that
Petitioners allege were sold through Jacobi's affiliate in Sri Lanka.
On November 9, 2010, the Department issued a letter to Petitioners
acknowledging that the Department has the authority to address
allegations of transshipment based on section 781(b) of the Act, which
allows for the prevention of circumvention of
[[Page 23980]]
antidumping duty orders for merchandise completed or assembled in other
foreign countries, and 19 CFR 351.225(h), which states how the
Department handles scope inquiries related to ``products completed or
assembled in other foreign countries,'' in accordance with section
781(b) of the Act. However, the Department concluded that it would not
request Jacobi to revise its Section C database to include sales of
subject merchandise allegedly sold through Jacobi's Sri Lankan
affiliate. As upheld by the Court of International Trade (``CIT'') in
Globe Metallurgical \13\ affirming the Department's remand from Silicon
Metal, \14\ where a party has placed evidence on the record of an
administrative review to support allegations of transshipment involving
third-country processing, it is the Department's practice to consider
such allegations through a scope or anti-circumvention inquiry rather
than within the context of an administrative review.\15\
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\13\ See Globe Metallurgical Inc. v. United States, 722 F. Supp.
2d 1372 (Ct. Int'l Trade Sept. 1, 2010).
\14\ See Silicon Metal from the People's Republic of China,
April 8, 2010, remanded from Globe Metallurgical, Inc. v. United
States, Court No. 08-00290 (December 18, 2009).
\15\ See letter to Calgon Carbon Corporation and Norit Americas
Inc., from James C. Doyle, Director, Office 9, re: Third
Administrative Review of Certain Activated Carbon from the People's
Republic of China, dated November 9, 2010.
---------------------------------------------------------------------------
On November 16, 2010, Petitioners filed additional comments asking
the Department to reconsider its decision. Petitioners argued that this
case differs from Globe Metallurgical in a number of ways.
Specifically, Petitioners noted that in this case, unlike in Globe
Metallurgical: (1) The Department has a substantial database of sales
by Jacobi that are subject to review; (2) the third-country supplier is
affiliated with Jacobi and the Department has the ability to require it
to participate; (3) the Department has sufficient time and resources to
examine the additional sales and circumstances; (4) there are suspended
entries upon which the Department can assess antidumping duties; (5)
the question of Jacobi's potential transshipment is best explored
within the context of an administrative review; and (6) the Department
should exercise the authority to examine Jacobi's third-country sales
to ensure that companies do not transship their highest margin sales to
manipulate margins in administrative reviews.
At this time, the Department continues to find that although the
Department does have the authority to investigate allegations of
transshipment within the context of an administrative review, we have
determined that an administrative review is not the best context for
addressing the type of allegations that Petitioners have brought to the
Department. Specifically, we continue to find, as we did in the Globe
Metallurgical remand, that evaluating and verifying additional
information relating to a circumvention allegation creates an
overwhelming burden in an administrative review. Therefore, as
previously stated, it is the Department's practice that where a party
has placed evidence on the record of an administrative review to
support allegations of transshipment involving third-country
processing, a scope or anti-circumvention inquiry is the proper venue
and we will not consider it within the context of an administrative
review. Furthermore, where the allegation concerns transshipment that
does not involve third-country processing, such an allegation should be
directed to CBP, which is the proper authority to investigate claims of
mislabeling country-of-origin. Therefore, although the Department
intends to seek additional information from Jacobi in order to ensure
that its Section C database includes the full universe of its POR sales
of subject merchandise, we are not requiring Jacobi to revise its
Section C questionnaire responses or databases to include sales of
merchandise from Sri Lanka for these preliminary results.\16\
---------------------------------------------------------------------------
\16\ However, we will refer Petitioners' transshipment
allegations to CBP.
---------------------------------------------------------------------------
Questionnaires
On July 21, 2010, the Department issued its initial non-market
economy (``NME'') antidumping duty questionnaire to the mandatory
respondent Jacobi. On September 30, 2010, the Department issued its
initial NME antidumping duty questionnaire to the mandatory respondent
CCT. CCT and Jacobi timely responded to the Department's initial and
subsequent supplemental questionnaires between August 2010 and February
2011.
Period of Review
The POR is April 1, 2009, through March 31, 2010.
Scope of the Order
The merchandise subject to the order is certain activated carbon.
Certain activated carbon is a powdered, granular, or pelletized carbon
product obtained by ``activating'' with heat and steam various
materials containing carbon, including but not limited to coal
(including bituminous, lignite, and anthracite), wood, coconut shells,
olive stones, and peat. The thermal and steam treatments remove organic
materials and create an internal pore structure in the carbon material.
The producer can also use carbon dioxide gas (CO2) in place
of steam in this process. The vast majority of the internal porosity
developed during the high temperature steam (or CO2 gas)
activated process is a direct result of oxidation of a portion of the
solid carbon atoms in the raw material, converting them into a gaseous
form of carbon.
The scope of the order covers all forms of activated carbon that
are activated by steam or CO2, regardless of the raw
material, grade, mixture, additives, further washing or post-activation
chemical treatment (chemical or water washing, chemical impregnation or
other treatment), or product form. Unless specifically excluded, the
scope of the order covers all physical forms of certain activated
carbon, including powdered activated carbon (``PAC''), granular
activated carbon (``GAC''), and pelletized activated carbon.
Excluded from the scope of the order are chemically activated
carbons. The carbon-based raw material used in the chemical activation
process is treated with a strong chemical agent, including but not
limited to phosphoric acid, zinc chloride, sulfuric acid or potassium
hydroxide, that dehydrates molecules in the raw material, and results
in the formation of water that is removed from the raw material by
moderate heat treatment. The activated carbon created by chemical
activation has internal porosity developed primarily due to the action
of the chemical dehydration agent. Chemically activated carbons are
typically used to activate raw materials with a lignocellulosic
component such as cellulose, including wood, sawdust, paper mill waste
and peat.
To the extent that an imported activated carbon product is a blend
of steam and chemically activated carbons, products containing 50
percent or more steam (or CO2 gas) activated carbons are
within the scope, and those containing more than 50 percent chemically
activated carbons are outside the scope. This exclusion language
regarding blended material applies only to mixtures of steam and
chemically activated carbons.
Also excluded from the scope are reactivated carbons. Reactivated
carbons are previously used activated carbons that have had adsorbed
materials removed from their pore structure after use through the
application of heat, steam and/or chemicals.
Also excluded from the scope is activated carbon cloth. Activated
carbon
[[Page 23981]]
cloth is a woven textile fabric made of or containing activated carbon
fibers. It is used in masks and filters and clothing of various types
where a woven format is required.
Any activated carbon meeting the physical description of subject
merchandise provided above that is not expressly excluded from the
scope is included within the scope. The products subject to the order
are currently classifiable under the Harmonized Tariff Schedule of the
United States (``HTSUS'') subheading 3802.10.00. Although the HTSUS
subheading is provided for convenience and customs purposes, the
written description of the scope of the order is dispositive.
Preliminary Partial Rescission
As discussed in the ``Background'' section above, Lingzhou filed a
no shipment certification indicating that it did not export subject
merchandise to the United States during the POR. In order to examine
this claim, we reviewed the CBP data used for respondent selection and
found no discrepancies with the statement made by Lingzhou.
Additionally, we sent an inquiry to CBP asking if any CBP office had
any information contrary to the no shipments claim and requesting CBP
alert the Department of any such information within ten days of
receiving our inquiry. CBP received our inquiry on October 6, 2010. We
have not received a response from CBP with regard to our inquiry which
indicates that CBP did not have information that was contrary to the
claim of Lingzhou. Therefore, because the record indicates that
Lingzhou did not export subject merchandise to the United States during
the POR, we are preliminarily rescinding this administrative review
with respect to this company.\17\
---------------------------------------------------------------------------
\17\ See, e.g., Certain Frozen Fish Fillets From the Socialist
Republic of Vietnam: Notice of Preliminary Results and Partial
Rescission of the Third Antidumping Duty Administrative Review, 72
FR 53527, 53530 (September 19, 2007), unchanged in Certain Frozen
Fish Fillets From the Socialist Republic of Vietnam: Final Results
of Antidumping Duty Administrative Review and Partial Rescission, 73
FR 15479, 15480 (March 24, 2008).
---------------------------------------------------------------------------
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as an NME country. In accordance with section
771(18)(C)(i) of the Act, any determination that a foreign country is
an NME country shall remain in effect until revoked by the
administering authority.\18\ None of the parties to this proceeding has
contested such treatment. Accordingly, the Department continues to
treat the PRC as an NME and calculated NV in accordance with section
773(c) of the Act, which applies to NME countries. When the Department
investigates imports from an NME country and available information does
not permit the Department to determine NV, pursuant to section 773(a)
of the Act, then, pursuant to section 773(c)(1), the Department
determines NV on the basis of the factors of production (``FOP'')
utilized in producing the merchandise.
---------------------------------------------------------------------------
\18\ See Brake Rotors From the People's Republic of China: Final
Results and Partial Rescission of the 2004/2005 Administrative
Review and Notice of Rescission of 2004/2005 New Shipper Review, 71
FR 66304 (November 14, 2006).
---------------------------------------------------------------------------
Surrogate Country
Section 773(c)(4) of the Act, directs the Department to value an
NME producer's FOPs, to the extent possible, in one or more market-
economy countries that (1) are at a level of economic development
comparable to that of the NME country, and (2) are significant
producers of comparable merchandise. Pursuant to this statutory
directive, the Department determined that India, Indonesia, the
Philippines, Colombia, Thailand, and Peru are countries comparable to
the PRC in terms of economic development.\19\
---------------------------------------------------------------------------
\19\ See Memorandum to Catherine Bertrand, Program Manager, AD/
CVD Operations, Office 9, Import Administration, from Carole
Showers, Director, Office of Policy, Import Administration re:
Request for a List of Surrogate Countries for an Administrative
Review of the Antidumping Duty Order on Certain Activated Carbon
(``Carbon'') from the People's Republic of China (``PRC''), dated
September 21, 2010.
---------------------------------------------------------------------------
On September 28, 2010, the Department sent interested parties a
letter inviting comments on surrogate country selection and information
regarding valuing FOPs.\20\ On January 14, 2011, the Department
received information to value FOPs from CCT, Jacobi, and Petitioners.
The Department did not receive any rebuttal surrogate value comments.
All of the surrogate values placed on the record were obtained from
sources in India. No parties provided comments with respect to
selection of a surrogate country.
---------------------------------------------------------------------------
\20\ See the Department's Letter to All Interested Parties;
Third Administrative Review of Certain Activated Carbon from the
People's Republic of China: Deadlines for Surrogate Country and
Surrogate Value Comments, dated September 28, 2010.
---------------------------------------------------------------------------
Based on publicly available information placed on the record (e.g.,
production data), the Department determines India to be a reliable
source for surrogate values because India is at a comparable level of
economic development to the PRC pursuant to section 773(c)(4) of the
Act, is a significant producer of subject merchandise, and has publicly
available and reliable data for which to value the respondents' FOPs.
Accordingly, the Department has selected India as the surrogate country
for purposes of valuing the FOPs because it meets the Department's
criteria for surrogate country selection.
Facts Available
Sections 776(a)(1) and 776(a)(2) of the Act provide that, if
necessary information is not available on the record, or if an
interested party: (A) Withholds information that has been requested by
the Department; (B) fails to provide such information in a timely
manner or in the form or manner requested subject to sections 782(c)(1)
and (e) of the Act; (C) significantly impedes a proceeding under the
antidumping statute; or (D) provides such information but the
information cannot be verified, the Department shall, subject to
subsection 782(d) of the Act, use facts otherwise available in reaching
the applicable determination.
Section 782(c)(1) of the Act provides that if an interested party
``promptly after receiving a request from [the Department] for
information, notifies [the Department] that such party is unable to
submit the information in the requested form and manner, together with
a full explanation and suggested alternative forms in which such party
is able to submit the information,'' the Department may modify the
requirements to avoid imposing an unreasonable burden on that party.
Section 782(d) of the Act provides that, if the Department
determines that a response to a request for information does not comply
with the request, the Department will inform the person submitting the
response of the nature of the deficiency and shall, to the extent
practicable, provide that person the opportunity to remedy or explain
the deficiency. If that person submits further information that
continues to be unsatisfactory, or this information is not submitted
within the applicable time limits, the Department may, subject to
section 782(e) of the Act, disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act states that the Department shall not
decline to consider information deemed ``deficient'' under section
782(d) if: (1) The information is submitted by the established
deadline; (2) the information can be verified; (3) the information is
not so incomplete that it cannot serve as a reliable basis for reaching
the applicable determination; (4) the interested party has demonstrated
that it acted to the best of its ability in
[[Page 23982]]
providing the information and meeting the requirements established by
the Department; and (5) the information can be used without undue
difficulties.
However, section 776(b) of the Act states that if the Department
``finds that an interested party has failed to cooperate by not acting
to the best of its ability to comply with a request for information
from the administering authority or the Commission, the administering
authority or the Commission * * *, in reaching the applicable
determination under this title, may use an inference that is adverse to
the interests of that party in selecting from among the facts otherwise
available.'' \21\ Adverse inferences are appropriate ``to ensure that
the party does not obtain a more favorable result by failing to
cooperate than if it had cooperated fully.'' Id. An adverse inference
may include reliance on information derived from the petition, the
final determination in the investigation, any previous review, or any
other information placed on the record. See section 776(b) of the Act.
---------------------------------------------------------------------------
\21\ See also Statement of Administrative Action accompanying
the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, Vol. 1, at
870 (1994) (``SAA''), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-99.
---------------------------------------------------------------------------
Jacobi's Excluded Producers
On August 2, 2010, Jacobi requested to be excused from reporting
FOP data for certain Chinese producers. On August 9, 2010, Petitioners
submitted comments on Jacobi's request. On August 13, 2010, the
Department notified Jacobi that due to the large number of producers
that supplied Jacobi during the POR, Jacobi would be excused from
reporting certain FOP data.\22\ Specifically, the Department did not
require Jacobi to report FOP data for its five smallest producers.
Additionally, the Department notified Jacobi that it was not required
to report FOP data for products that were purchased and not produced by
Jacobi's suppliers, as indicated in Jacobi's August 2, 2010 letter.
Thus, the Department determined that upon Jacobi's acceptance of the
exclusion terms, the Department would determine the appropriate facts
available to apply, in lieu of the actual FOP data, to the
corresponding U.S. sales of subject merchandise.
---------------------------------------------------------------------------
\22\ See the Department's Letter to Jacobi dated August 13,
2010.
---------------------------------------------------------------------------
CCT's Excluded Producers
On October 14, 2010, CCT requested to be excused from reporting FOP
data for certain Chinese producers as well as FOP data for products
that were produced prior to the POR, but were sold during the POR. On
October 29, 2010, the Department notified CCT that due to the large
number of producers that supplied CCT during the POR, CCT would be
excused from reporting certain FOP data.\23\ Specifically, the
Department did not require CCT to report FOP data for its eight
smallest producers. Additionally, the Department notified CCT that it
was not required to report FOP data for products that were purchased
and not produced by CCT's suppliers, as indicated in CCT's October 14,
2010 letter. Furthermore, the Department notified CCT that it would not
be required to report FOP data for products that were produced prior to
the POR, except for those products blended by CCT during the current
POR. Thus, the Department determined that upon CCT's acceptance of the
exclusion terms, the Department would determine the appropriate facts
available to apply, in lieu of the actual FOP data, to the
corresponding U.S. sales of subject merchandise.
---------------------------------------------------------------------------
\23\ See the Department's letter to CCT dated October 29, 2010.
---------------------------------------------------------------------------
In accordance with section 776(a)(1) of the Act, the Department is
applying facts available to determine the NV for the sales
corresponding to the FOP data that Jacobi and CCT were excused from
reporting. As facts available, the Department is applying the
calculated average normal value of Jacobi and CCT's reported sales to
the sales produced by the excluded producers. These issues are
addressed in separate company-specific memoranda where a detailed
explanation of the facts available calculation is provided.\24\
---------------------------------------------------------------------------
\24\ See Memorandum to Catherine Bertrand, Program Manager, AD/
CVD Operations, Office 9, from Katie Marksberry, Case Analyst, AD/
CVD Operations, Office 9: Preliminary Results Analysis Memorandum
for Jacobi Carbons AB in the Antidumping Duty Administrative Review
of Certain Activated Carbon from the People's Republic of China,
dated concurrently with this notice (``Jacobi Prelim Analysis
Memo''); see also Memorandum to Catherine Bertrand, Program Manager,
AD/CVD Operations, Office 9, from Bob Palmer, Case Analyst, AD/CVD
Operations, Office 9: Preliminary Results Analysis Memorandum for
Calgon Carbon (Tianjin) Co. in the Antidumping Duty Administrative
Review of Certain Activated Carbon from the People's Republic of
China, dated concurrently with this notice (``CCT Prelim Analysis
Memo'').
---------------------------------------------------------------------------
Separate Rates
A designation of a country as an NME remains in effect until it is
revoked by the Department.\25\ In proceedings involving NME countries,
it is the Department's practice to begin with a rebuttable presumption
that all companies within the country are subject to government control
and thus should be assessed a single antidumping duty rate.\26\
---------------------------------------------------------------------------
\25\ See section 771(18)(c)(i) of the Act.
\26\ See Notice of Final Determination of Sales at Less Than
Fair Value, and Affirmative Critical Circumstances, In Part: Certain
Lined Paper Products From the People's Republic of China, 71 FR
53079, 53080 (September 8, 2006); Final Determination of Sales at
Less Than Fair Value and Final Partial Affirmative Determination of
Critical Circumstances: Diamond Sawblades and Parts Thereof from the
People's Republic of China, 71 FR 29303, 29307 (May 22, 2006).
---------------------------------------------------------------------------
In the Initiation Notices, the Department notified parties of the
application process by which exporters and producers may obtain
separate rate status in NME reviews.\27\ It is the Department's policy
to assign all exporters of merchandise subject to investigation in an
NME country this single rate unless an exporter can affirmatively
demonstrate that it is sufficiently independent so as to be entitled to
a separate rate.\28\ Exporters can demonstrate this independence
through the absence of both de jure and de facto government control
over export activities.\29\ The Department analyzes each entity
exporting the subject merchandise under a test arising from the Final
Determination of Sales at Less Than Fair Value: Sparklers From the
People's Republic of China, 56 FR 20588 (May 6, 1991) (``Sparklers''),
as further developed in Notice of Final Determination of Sales at Less
Than Fair Value: Silicon Carbide From the People's Republic of China,
59 FR 22585 (May 2, 1994) (``Silicon Carbide''). However, if the
Department determines that a company is wholly foreign-owned or located
in a market economy (``ME''), then a separate rate analysis is not
necessary to determine whether it is independent from government
control.\30\
---------------------------------------------------------------------------
\27\ See Initiation Notices.
\28\ See id.
\29\ See id.
\30\ 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).
---------------------------------------------------------------------------
Excluding the companies selected for individual review, the
Department received separate rate applications or certifications from
the following companies: Beijing Pacific Activated Carbon Products Co.,
Ltd.; Datong Municipal Yunguang Activated Carbon Co., Ltd.; Ningxia
Guanghua Cherishment Activated Carbon Co., Ltd.; Ningxia Huahui
Activated Carbon Co., Ltd. (``Huahui''); Shanxi DMD Corporation; Shanxi
Sincere Industrial Co., Ltd.; Shanxi Industry Technology Trading Co.,
Ltd.; Tangshan Solid Carbon Co., Ltd.; and Tianjin Maijin Industries
Co., Ltd.
Additionally, the Department received completed responses to the
[[Page 23983]]
Section A portion of the NME questionnaire from CCT and Jacobi, which
contained information pertaining to the companies' eligibility for a
separate rate. However, Datong Juqiang Activated Carbon Co., Ltd.;
Datong Yunguang Chemicals Plant; Hebei Foreign Trade and Advertising
Corporation; Shanxi Newtime Co., Ltd.; and United Manufacturing
International (Beijing) Ltd.; companies upon which the Department
initiated administrative reviews that have not been rescinded, did not
submit either a separate-rate application or certification. Therefore,
because Datong Juqiang Activated Carbon Co., Ltd.; Datong Yunguang
Chemicals Plant; Hebei Foreign Trade and Advertising Corporation;
Shanxi Newtime Co., Ltd.; and United Manufacturing International
(Beijing) Ltd. did not demonstrate their eligibility for separate rate
status in a timely manner, we have determined it is appropriate to
consider these companies as part of the PRC-wide entity.
Ningxia Huahui Activated Carbon Co., Ltd.'s Status as a Separate Rate
Company
On December 23, 2010, Huahui submitted its separate rate
application to the Department.\31\ On January 3, 2011, Petitioners
submitted comments on Huahui's application.\32\ On January 21, 2011,
the Department issued a supplemental questionnaire to Huahui regarding
its separate rate application, and on February 22, 2011, Huahui
submitted its response to the Department.\33\ On March 3, 2011,
Petitioners submitted additional comments to the Department regarding
Huahui's application for a separate rate.\34\ On March 11, 2011, the
Department issued a second supplemental questionnaire to Huahui
regarding its separate rate application, and on March 23, 2011, Huahui
submitted a response to the Department.\35\ On April 5, 2011,
Petitioners submitted additional comments on Huahui's second
supplemental questionnaire.
---------------------------------------------------------------------------
\31\ See Separate Rate Application of Ningxia Huahui Activated
Carbon Co., Ltd., dated December 23, 2010, (``Huahui Separate Rate
Application'').
\32\ See Letter from Petitioners to the Department re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Petitioners'
Initial Comments on Ningxia Huahui's Separate Rate Application,
dated January 3, 2011.
\33\ See Huahui's Supplemental Questionnaire Regarding the
December 23, 2010 Separate Rate Application of Ningxia Huahui
Activated Carbon Co., Ltd., dated February 22, 2011.
\34\ See Letter from Petitioners to the Department re: Third
Administrative Review of the Antidumping Duty Order on Certain
Activated Carbon from the People's Republic of China: Petitioners'
Pre-Preliminary Comments on Ningxia Huahui's Separate Rate
Application, dated March 3, 2011.
\35\ See Huahui's Second Supplemental Questionnaire Regarding
the December 23, 2010 Separate Rate Application of Ningxia Huahui
Activated Carbon Co., Ltd., dated March 23, 2011 (``Huahui Second
Separate Rate Supplemental'').
---------------------------------------------------------------------------
The Department has analyzed Huahui's separate rate application and
supplemental responses and, for these preliminarily results, we find
that Huahui has demonstrated both de jure and de facto independence
from the PRC government with respect to its export activities.
Consistent with the Department's requirements on exporters requesting a
separate rate, Huahui placed numerous documents on the record that have
been examined for these preliminary results. Specifically, Huahui
demonstrated an absence of de jure government control by the absence of
restrictive stipulations associated with its business license and
export certificate of approval, and through submission of pertinent
legislative enactments that protect the operational and legal
independence of companies incorporated in the PRC.\36\ With respect to
de facto government control, Huahui: (1) Certified that its export
prices are neither set by or subject to the approval of a government
agency; \37\ (2) placed on the record documents that demonstrate an
absence of government control over the negotiation and signing of
contracts including documents related to price negotiation for U.S.
sales, and complete sales and export documentation; \38\ (3) certified
that it retains the proceeds of its export sales and makes independent
decisions regarding the disposition of profits and financing of losses
and provided financial statements with record evidence from its
Articles of Association demonstrating the independent distribution of
profit; \39\ and (4) certified that it has autonomy from all levels of
government and government entities in making decisions regarding the
selection of management and placed on the record its Articles of
Association, a number of board resolutions and an internal management
selection proposal, which demonstrate the independent selection of
management by the Board of Directors.\40\
---------------------------------------------------------------------------
\36\ See Huahui Separate Rate Application at 8-11 and Exhibits 5
and 6.
\37\ See id. at 17.
\38\ See id. at Exhibits 2 and 3.
\39\ See id. at 20 and Exhibits 9 and 11.
\40\ See id. at 13 and Exhibit 13; see also Huahui Second
Separate Rate Supplemental at 2-3 and Exhibits 1 and 2.
---------------------------------------------------------------------------
Although Petitioners have argued that Huahui should be denied a
separate rate because it does not fulfill the criteria for establishing
autonomy from de facto government control of its selection of
management and disposition of profits, the evidence on the record of
this review demonstrates that Huahui does have the ability, and has
exercised its ability, to appoint its managers and control the
disposition of its profits through its Board of Directors. With respect
to the selection of management, the Department has previously found
that management selected and appointed by an independent board of
directors is sufficiently removed from government-controlled
shareholders for the purpose of demonstrating the absence of de facto
government control.\41\ Furthermore, the Articles of Association
submitted by Huahui clearly state that its shareholders have the right
to approve profit distributions by voting according to the number of
shares owned.\42\ In this case, Petitioners have provided information
that addresses speculative and potential control by government entities
over Huahui, which the Department has found is not sufficient evidence
to support denying a separate rate.\43\ There is no evidence on the
record of actual government control of individual export decisions of
Huahui during the POR, or evidence demonstrating that government owned
or controlled shareholders actually controlled the selection of
Huahui's management in greater proportion to their proportion of the
voting shares. Furthermore, the Department has previously determined
that government ownership alone does not warrant denying a company a
separate rate.\44\ Therefore, based on an analysis of all of the
information placed on the record of this review by Huahui and
Petitioners, we preliminarily find that Huahui is eligible for a
separate rate, and we are granting Huahui separate rate status for
these preliminary results.
---------------------------------------------------------------------------
\41\ See Certain New Pneumatic Off-The-Road Tires from the
People's Republic of China: Final Affirmative Determination of Sales
at Less Than Fair Value and Partial Affirmative Determination of
Critical Circumstances, 73 FR 40485 (July 15, 2008) and accompanying
Issues and Decision Memorandum at Comment 25.
\42\ See Huahui Second Separate Rate Supplemental at 9; see also
Huahui Separate Rate Application at Exhibit 9.
\43\ See Certain Circular Welded Carbon Quality Steel Line Pipe
from the People's Republic of China: Final Determination of Sales at
Less Than Fair Value, 74 FR 14514 (March 31, 2009), and accompanying
Issues and Decision Memorandum at Comment 11.
\44\ See e.g. Lightweight Thermal Paper From the People's
Republic of China: Final Determination of Sales at Less Than Fair
Value, 73 FR 57329 (October 2, 2008) and accompanying Issues and
Decision Memorandum at Comment 7.
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[[Page 23984]]
Separate Rate Recipients
1. Wholly Foreign-Owned
Jacobi reported that it is wholly owned by a company located in an
ME country, Sweden.\45\ Additionally, CCT reported that it is wholly
owned by a company located in the United States.\46\ Therefore, there
is no PRC ownership of Jacobi or CCT and, because the Department has no
evidence indicating that Jacobi or CCT are under the control of the
PRC, a separate rates analysis is not necessary to determine whether
they are independent from government control.\47\ Additionally, one of
the exporters under review not selected for individual review, Tangshan
Solid Carbon Co., Ltd., demonstrated in its separate-rate certification
that it is 100 percent market-economy foreign owned.\48\ Accordingly,
the Department has preliminarily granted separate rate status to
Jacobi, CCT, and Tangshan Solid Carbon Co. Ltd.
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\45\ See Jacobi's Section A Questionnaire Response dated August
11, 2010, at 3.
\46\ See CCT's Section A Questionnaire Response dated October
27, 2010 at A-2.
\47\ See Brake Rotors From the People's Republic of China:
Preliminary Results and Partial Rescission of the Fourth New Shipper
Review and Rescission of the Third Antidumping Duty Administrative
Review, 66 FR 1303, 1306 (January 8, 2001), unchanged in Brake
Rotors From the People's Republic of China: Final Results and
Partial Rescission of Fourth New Shipper Review and Rescission of
Third Antidumping Duty Administrative Review, 66 FR 27063 (May 16,
2001); Notice of Final Determination of Sales at Less Than Fair
Value: Creatine Monohydrate From the People's Republic of China, 64
FR 71104 (December 20, 1999).
\48\ See Tangshan Solid Carbon Co. Ltd.'s Separate Rate
Certification dated July 27, 2010, at Attachment 1.
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2. Joint Ventures Between Chinese and Foreign Companies or Wholly
Chinese-Owned Companies
Eight \49\ of the separate rate applicants in this administrative
review stated that they are either joint ventures between Chinese and
foreign companies or are wholly Chinese-owned companies. In accordance
with its practice, the Department has analyzed whether the separate-
rate applicants have demonstrated the absence of de jure and de facto
governmental control over their respective export activities.
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\49\ These companies are: Beijing Pacific Activated Carbon
Products Co., Ltd.; Datong Municipal Yunguang Activated Carbon Co.,
Ltd.; Ningxia Guanghua Cherishment Activated Carbon Co., Ltd.;
Ningxia Huahui Activated Carbon Co., Ltd.; Shanxi DMD Corporation;
Shanxi Sincere Industrial Co., Ltd.; Shanxi Industry Technology
Trading Co., Ltd.; and Tianjin Maijin Industries Co., Ltd.
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a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) any other
formal measures by the government decentralizing control of
companies.\50\ The evidence provided by the eight separate rate
applicants supports a preliminary finding of de jure absence of
government control based on the following: (1) An absence of
restrictive stipulations associated with the individual exporter's
business and export licenses; (2) there are applicable legislative
enactments decentralizing control of the companies; and (3) there are
formal measures by the government decentralizing control of
companies.\51\
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\50\ See Sparklers, 56 FR at 20589.
\51\ See, e.g., Shanxi Industry Technology Trading Co., Ltd.'s
Separate Rate Certification dated July 21, 2010, at 8; and Shanxi
DMD Corporation's Separate Rate Certification dated July 21, 2010,
at 8.
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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 government control of
its export functions: (1) Whether the export prices are set by or are
subject to the approval of a government agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses.\52\ The Department has determined that an analysis
of de facto control is critical in determining whether respondents are,
in fact, subject to a degree of government control which would preclude
the Department from assigning separate rates. The evidence provided by
the eight separate rate applicants supports a preliminary finding of de
facto absence of government control based on the following: (1) The
companies set their own export prices independent of the government and
without the approval of a government authority; (2) the companies have
authority to negotiate and sign contracts and other agreements; (3) the
companies have autonomy from the government in making decisions
regarding the selection of management; and (4) there is no restriction
on any of the companies' use of export revenue.\53\
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\52\ 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).
\53\ See, e.g., Shanxi Industry Technology Trading Co., Ltd.'s
Separate Rate Certification dated July 21, 2010, at 8-9; and Shanxi
DMD Corporation's Separate Rate Certification dated July 21, 2010,
at 8-9. Therefore, the Department preliminarily finds that Huahui
and nine separate-rate applicants have established that they qualify
for a separate rate under the criteria established by Silicon
Carbide and Sparklers.
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Rate for Non-Selected Companies
As stated previously, this review covers eighteen companies. Of
those, the Department selected two exporters, CCT and Jacobi, as
mandatory respondents. As stated above, five companies, Datong Juqiang
Activated Carbon Co., Ltd.; Datong Yunguang Chemicals Plant; Hebei
Foreign Trade and Advertising Corporation; Shanxi Newtime Co., Ltd.;
and United Manufacturing International (Beijing) Ltd. are part of the
PRC-Wide entity and, thus, are not entitled to a separate rate.
Additionally, we are preliminarily rescinding the review with respect
to Ningxia Lingzhou Foreign Trade Co., Ltd. because we determined that
it had no shipments of subject merchandise to the United States during
the POR. The remaining eight companies submitted timely information as
requested by the Department and remain subject to this review as
cooperative separate rate respondents.
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. Section 735(c)(5)(A) of
the Act instructs that we are not to calculate an all-others rate using
any zero or de minimis margins or any margins based entirely on facts
available. Accordingly, the Department's practice in this regard, in
reviews involving limited respondent selection based on exporters
accounting for the largest volume of trade, has been to average the
rates for the selected companies, excluding zero and de minimis rates
and rates based entirely on facts available.\54\ Section 735(c)(5)(B)
[[Page 23985]]
of the Act also provides that, where all margins are zero, de minimis,
or based entirely on facts available, we may use ``any reasonable
method'' for assigning the rate to non-selected respondents, including
``averaging the estimated weighted average dumping margins determined
for the exporters and producers individually investigated.'' In this
instance, consistent with our practice, we have preliminarily
established a margin for the separate rate respondents based on the
rate we calculated for the mandatory respondent whose rate was not de
minimis.\55\ For the PRC-wide entity, we have assigned the entity's
current rate and only rate ever determined for the entity in this
proceeding.
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\54\ See Certain Frozen Warmwater Shrimp From the Socialist
Republic of Vietnam: Final Results and Final Partial Rescission of
Antidumping Duty Administrative Review, 73 FR 52273, 52275
(September 9, 2008) and accompanying Issues and Decision Memorandum
at Comment 6.
\55\ See, e.g., Forth Administrative Review of Certain Frozen
Warrnwater Shrimp From the People's Republic of China: Preliminary
Results, Preliminary Partial Rescission of Antidumping Duty
Administrative Review and Intent Not To Revoke, In Part, 75 FR 11855
(March 12, 2010).
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Date of Sale
CCT and Jacobi reported the invoice date as the date of sale
because they claim that for their U.S. sales of subject merchandise
made during the POR, the material terms of sale were established on the
invoice date. In accordance with 19 CFR 351.401(i) and the Department's
long-standing practice of determining the date of sale,\56\ the
Department preliminarily determines that the invoice date is the most
appropriate date to use as CCT's and Jacobi's date of sale.
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\56\ See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Frozen and Canned Warmwater Shrimp From
Thailand, 69 FR 76918 (December 23, 2004), and accompanying Issues
and Decision Memorandum at Comment 10.
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Fair Value Comparisons
To determine whether sales of certain activated carbon to the
United States by CCT and Jacobi were made at less than normal value,
the Department compared constructed export price (``CEP'') to NV, as
described in the ``U.S. Price,'' and ``Normal Value'' sections below.
U.S. Price
Constructed Export Price
For all of CCT and Jacobi's sales, the Department based U.S. price
on CEP in accordance with section 772(b) of the Act, because sales of
Chinese-origin merchandise were made on behalf of the companies located
in the PRC by a U.S. affiliate to unaffiliated purchasers in the United
States. For these sales, the Department based CEP on prices to the
first unaffiliated purchaser in the United States. Where appropriate,
the Department made deductions from the starting price (gross unit
price) for foreign movement expenses, international movement expenses,
U.S. movement expenses, and appropriate selling adjustments, in
accordance with section 772(c)(2)(A) of the Act.
In accordance with section 772(d)(1) of the Act, the Department
also deducted those selling expenses associated with economic
activities occurring in the United States. The Department deducted,
where appropriate, commissions, inventory carrying costs, interest
revenue, credit expenses, warranty expenses, and indirect selling
expenses. For those expenses that were provided by an ME provider and
paid for in an ME currency, the Department used the reported expense.
Due to the proprietary nature of certain adjustments to U.S. price, for
a detailed description of all adjustments made to U.S. price for each
company, see the company specific analysis memoranda, dated
concurrently with this notice.
CCT also requested that the Department apply the ``special rule''
for merchandise with value added after importation and excuse CCT from
reporting U.S. re-sales of subject merchandise further processed by
Calgon Carbon Corporation (``CCC''), CCT's U.S. parent company, in the
United States and the U.S. further-processing cost information
associated with those re-sales. CCT made this request with respect to
all categories of U.S. sales with further manufacturing and provided
further-processing cost data.\57\
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\57\ See CCT's Section A Questionnaire Response dated October
27, 2010, at Exhibit 11; see also CCT's Supplemental Section A
Questionnaire Response dated December 6, 2010 at Exhibit A-14.
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The Department preliminarily determines to apply the ``special
rule'' under section 772(e) of the Act for merchandise with value added
after importation to the sales made by CCC in the United States.
Section 772(e) of the Act provides that, when the subject merchandise
is imported by an affiliated person and the value-added in the United
States by the affiliated person is likely to exceed substantially the
value of the subject merchandise, the Department shall determine the
CEP for such merchandise using the price to an unaffiliated party of
identical or other subject merchandise if there is a sufficient
quantity of sales to provide a reasonable basis for comparison, and the
Department determines that the use of such sales is appropriate. If
there is not a sufficient quantity of such sales or if the Department
determines that using the price to an unaffiliated party of identical
or other subject merchandise is not appropriate, the Department may use
any other reasonable basis to determine the CEP.
To determine whether the value-added is likely to exceed
substantially the value of the subject merchandise, the Department
estimated the value added based on the difference between the averages
of the prices charged to the first unaffiliated purchaser for the
merchandise as sold in the United States and the averages of the prices
paid for the subject merchandise by the affiliated purchaser, CCC.
Based on the information provided by CCT and the Department's analysis
of this information, the Department determined that the estimated value
added in the United States by CCC accounted for at least 65 percent of
the price charged to the first unaffiliated customer for the
merchandise as sold in the United States.\58\ Therefore, the Department
preliminarily determines that the value added is likely to exceed
substantially the value of the subject merchandise.
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\58\ See 19 CFR 351.402(c); see also Antifriction Bearings
(Other Than Tapered Roller Bearings) and Parts Thereof From France,
Germany, Italy, Japan, Sweden, and the United Kingdom: Final Results
of Antidumping Duty Administrative Reviews and Revocation of Orders
in Part, 66 FR 36551, 36555 (July 12, 2001) and accompanying Issues
and Decision Memorandum at Comment 28 (``AFBs'').
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For CCT, the Department preliminarily determines that the remaining
quantity of sales of identical or other subject merchandise to
unaffiliated persons are sufficient to provide a reasonable basis for
comparison and that the use of these sales is appropriate as a basis
for calculating margins of dumping on the further processed
merchandise.\59\
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\59\ See section 772(e) of the Act; see also AFBs; Memorandum to
James C. Doyle, Director, AD/CVD Operations, Office 9, through
Catherine Bertrand, Program Manager, AD/CVD Operations, Office 9,
from Bob Palmer, Case Analyst, Office 9: Special Rule for
Merchandise with Value Added after Importation for the Antidumping
Duty Administrative Review of Certain Activated Carbon from the
People's Republic of China, dated January 5, 2011 (``Special Rule
Memo'').
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Accordingly, the Department has determined to apply the ``special
rule'' to CCT's sales of subject merchandise that were further
processed by CCC in the United States. Furthermore, the Department has
excused CCT from reporting these U.S. sales and the U.S. further-
processing cost information associated with the sales. In the Special
Rule Memo, the Department stated that it would apply the weight-
averaged margin from CCT's non-further manufactured U.S. sales to the
quantity
[[Page 23986]]
of CCC's U.S. further manufactured sales.\60\ However, the Department
intended to explain that it would apply the weight-averaged margin
calculated based upon CCT's U.S. sales to the first unaffiliated
customer as the surrogate margin to the transactions to which the
``special rule'' applied. The latter methodology was applied in
Activated Carbon AR 1, when we last granted CCT this ``special rule''
exemption.\61\ Therefore, for these preliminary results, we are
applying the weight-averaged margin as was intended.
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\60\ See Special Rule Memo at 5.
\61\ See First Administrative Review of Certain Activated Carbon
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 FR 57995 (November 10, 2009)
(``Activated Carbon AR1'') and accompanying Issues and Decisions
Memorandum at Comment 7; see also CCT Prelim Analysis Memo.
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Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the 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 the FOPs because the presence of government controls on various
aspects of non-market economies renders price comparisons and the
calculation of production costs invalid under the Department's normal
methodologies.
FOP Reporting Exclusions
As stated above, the Department granted exclusions for certain
nominal producers to be excused from providing FOP data for CCT and
Jacobi. As the corresponding U.S. sales of the subject merchandise
supplied by the excused producers were reported in the U.S. sales
listing, the Department has applied the calculated average normal value
of the subject merchandise produced by CCT and Jacobi, respectively, as
facts available, to those sales observations associated with the
excluded producers.\62\
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\62\ See Jacobi Prelim Analysis Memo; see also CCT Prelim
Analysis Memo.
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CCT's Control Number (``CONNUM'') Reporting Methodology
CCT has reported that neither it nor its individual producers can
provide FOP data based on all 15 product characteristics which comprise
the CONNUM.\63\ Rather, CCT and its individual producers have reported
FOP consumption data based on 11 of the 15 CONNUM product
characteristics which CCT tracks through its product codes and is the
basis on which CCT reported its weighted-average calculation of its
producers' FOP consumption.\64\ However, CCT states that it and its
producers, in the ordinary course of business, need not, and do not,
track
