[Federal Register Volume 76, Number 110 (Wednesday, June 8, 2011)]
[Notices]
[Pages 33194-33200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14044]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-832]
Pure Magnesium From the People's Republic of China: Preliminary
Results of the 2009-2010 Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from interested parties, the
Department of Commerce (``the Department'') is conducting an
administrative review of the antidumping duty order on pure magnesium
from the People's Republic of China (``PRC''), covering the period May
1, 2009, through April 30, 2010.
We have preliminarily determined that Tianjin Magnesium
International Co., Ltd. (``TMI''), the sole respondent in this
administrative review, has not made sales in the United States at
prices below normal value during the period of review (``POR''). If
these preliminary results are adopted in the final results of review,
we 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 (``POR'') for which the importer-specific
assessment rates are above de minimis.
We invite interested parties to comment on these preliminary
results. Parties who submit comments are requested to submit with each
argument a summary of the argument. We intend to issue the final
results no later than 120 days from the date of publication of this
notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as
amended (``the Act'').
DATES: Effective Date: June 8, 2011.
FOR FURTHER INFORMATION CONTACT: Eve Wang or Eugene Degnan, AD/CVD
Operations, Office 8, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
6231 and (202) 482-0414, respectively.
Background
On May 12, 1995, the Department published in the Federal Register
an antidumping duty order on pure magnesium from the PRC.\1\ On May 3,
2010, the Department published in the Federal Register a notice of
opportunity to request an administrative review of the antidumping duty
order on pure magnesium from the PRC for the period May 1, 2009,
through April 30, 2010.\2\ On May 26, 2010, in accordance with 19 CFR
351.213(b)(2), TMI, a foreign exporter of the subject merchandise,
requested the Department to review its sales of subject merchandise. On
June 1, 2010, US Magnesium LLC (``Petitioner'') also requested that the
Department conduct an administrative review of the exports of subject
merchandise of TMI. On June 30, 2010, the Department initiated an
administrative review of the order on pure magnesium from the PRC for
the POR with respect to TMI.\3\
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\1\ See Notice of Antidumping Duty Orders: Pure Magnesium From
the People's Republic of China, the Russian Federation and Ukraine;
Notice of Amended Final Determination of Sales at Less Than Fair
Value: Antidumping Duty Investigation of Pure Magnesium From the
Russian Federation, 60 FR 25691 (May 12, 1995).
\2\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity To Request Administrative
Review, 75 FR 23236 (May 3, 2010).
\3\ See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 75 FR
37759 (June 30, 2010).
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On June 30, 2010, the Department issued an antidumping duty
questionnaire to TMI. TMI submitted its section A questionnaire
response (``TMI's AQR'') on July 30, 2010, sections C and D
questionnaire response (``TMI's CQR'' and ``TMI's DQR'') August 27,
2010.\4\ Petitioner submitted comments concering TMI's AQR on September
24, 2010, and TMI's CQR and TMI's DQR on November 12, 2010. The
Department issued supplemental questionnaires to TMI concerning TMI's
AQR, CQR and DQR between January 6, 2011, and May 5, 2011. TMI
responded to each of the supplemental questionnaires between February
3, 2011, and May 10, 2011. Petitioner submitted comments on TMI's
submissions between April 22, 2011, and May 4, 2011.
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\4\ On July 30, 2010, TMI requested an extension of time to file
its response to sections C and D of the questionnaire, which the
Department granted.
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On October 12, 2010, Petitioner requested that the Department
conduct verification of TMI in accordance with 19 CFR
351.307(b)(1)(iv).
On October 22, 2010, the Department issued a letter to interested
parties seeking comments on surrogate country selection and surrogate
values (``SVs'') to value factors of production (``FOP''). On November
2, 2010, Petitioner filed a request for an extension of time to submit
comments on surrogate country selection. On November 15, and November
19, 2010, Petitioner submitted potential surrogate producer financial
statements and comments on surrogate country selection, respectively.
TMI submitted comments concering surrogate country selection on
November 19, 2010, and SV information on December 7, 2010. Petitioner
submitted initial SV comments on December 12, 2010, and rebuttal SV
comments on December 17, 2010. On December 17, 2010, TMI submitted
rebuttal SV comments. On May 3, 2011, Petitioner submitted comments
concerning the SV for freight rates.
On January 4, 2011, the Department extended the time period for
completion of the preliminary results of this review by 120 days until
May 31, 2011.\5\
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\5\ See Pure Magnesium from the People's Republic of China:
Extension of Time for the Preliminary Results of the Antidumping
Duty Administrative Review, 76 FR 1403 (January 10, 2011).
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Period of Review
The POR is May 1, 2009, through April 30, 2010.
Scope of Order
Merchandise covered by the order is pure magnesium regardless of
chemistry, form or size, unless expressly excluded from the scope of
the order. Pure magnesium is a metal or alloy containing by weight
primarily the element magnesium and produced by decomposing raw
materials into magnesium metal. Pure primary magnesium is used
primarily as a chemical in the aluminum alloying, desulfurization, and
chemical reduction industries. In addition, pure magnesium is used as
an input in producing magnesium alloy. Pure magnesium encompasses
products (including, but not limited to, butt ends, stubs, crowns and
crystals) with the following primary magnesium contents:
(1) Products that contain at least 99.95% primary magnesium, by
weight (generally referred to as ``ultra pure'' magnesium);
(2) Products that contain less than 99.95% but not less than 99.8%
primary magnesium, by weight (generally referred to as ``pure''
magnesium); and
(3) Products that contain 50% or greater, but less than 99.8%
primary magnesium, by weight, and that do not conform to ASTM
specifications for alloy magnesium (generally referred to as ``off-
specification pure'' magnesium).
[[Page 33195]]
``Off-specification pure'' magnesium is pure primary magnesium
containing magnesium scrap, secondary magnesium, oxidized magnesium or
impurities (whether or not intentionally added) that cause the primary
magnesium content to fall below 99.8% by weight. It generally does not
contain, individually or in combination, 1.5% or more, by weight, of
the following alloying elements: aluminum, manganese, zinc, silicon,
thorium, zirconium and rare earths.
Excluded from the scope of the order are alloy primary magnesium
(that meets specifications for alloy magnesium), primary magnesium
anodes, granular primary magnesium (including turnings, chips and
powder) having a maximum physical dimension (i.e., length or diameter)
of one inch or less, secondary magnesium (which has pure primary
magnesium content of less than 50% by weight), and remelted magnesium
whose pure primary magnesium content is less than 50% by weight.
Pure magnesium products covered by the order are currently
classifiable under Harmonized Tariff Schedule of the United States
(``HTSUS'') subheadings 8104.11.00, 8104.19.00, 8104.20.00, 8104.30.00,
8104.90.00, 3824.90.11, 3824.90.19 and 9817.00.90. Although the HTSUS
subheadings are provided for convenience and customs purposes, our
written description of the scope is dispositive.
Non-Market Economy Country Status
The Department has treated the PRC as a non-market economy
(``NME'') country in all past antidumping duty investigations and
administrative reviews and continues to do so in this case.\6\ The
Department has previously examined the PRC's market-economy status and
determined that NME status should continue for the PRC.\7\ 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.\8\ No interested party to this
proceeding has contested such treatment. Accordingly, we calculated
normal value (``NV'') using an FOP methodology in accordance with
section 773(c) of the Act, which applies to NME countries.
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\6\ See 771(18)(C) of the Act; see, e.g., Pure Magnesium from
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 73 FR 76336 (December 16, 2008)(``Pure
Magnesium 06-07''); and Frontseating Service Valves From the
People's Republic of China: Final Determination of Sales at Less
Than Fair Value and Final Negative Determination of Critical
Circumstances, 74 FR 10886 (March 13, 2009).
\7\ See Memorandum from the Office of Policy to David M.
Spooner, Assistant Secretary for Import Administration, The People's
Republic of China (PRC) Status as a Non-Market Economy (NME), dated
May 15, 2006. This document is available online at http://ia.ita.doc.gov/download/prc-nme-status/prc-nme-status-memo.pdf.
\8\ See section 771(18)(C)(i) of the Act.
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Surrogate Country
When the Department is investigating imports from an NME country,
section 773(c)(1) of the Act directs it to base NV on the NME
producer's FOPs. The Act further instructs that valuation of the FOPs
shall be based on the best available information from a surrogate
market-economy country or countries considered to be appropriate by the
Department.\9\ When valuing the FOPs, the Department shall utilize, to
the extent possible, the prices or costs of FOPs in one or more market-
economy countries that are: (1) At a level of economic development
comparable to that of the NME country; and (2) significant producers of
comparable merchandise.\10\ Further, the Department normally values all
FOPs in a single surrogate country.\11\ The sources of SVs are
discussed under the ``Normal Value'' section below and in the Factor
Valuation Memorandum, which is on file in the Central Records Unit,
Room 1117 of the main Department building.\12\
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\9\ See section 773(c)(1) of the Act.
\10\ See section 773(c)(4) of the Act.
\11\ See 19 CFR 351.408(c)(2).
\12\ See Memorandum to the File, ``2009-2010 Administrative
Review of the Antidumping Duty Order on Pure Magnesium from the
People's Republic of China: Factor Valuation Memorandum for the
Preliminary Results,'' dated May 31, 2011 (``Factor Valuation
Memorandum'').
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In examining which country to select as its primary surrogate
country for this proceeding, the Department first determined that
India, Indonesia, Peru, the Philippines, Thailand, and Ukraine are
countries comparable to the PRC in terms of economic development.\13\
The Department has also determined India to be a significant producer
of primary aluminum, a product that the Department has found to be
comparable to pure magnesium. Both Petitioner and TMI agreed that India
is the most appropriate surrogate country for this administrative
review. Both Petitioner and TMI submitted Indian-sourced data to value
FOPs.
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\13\ See Memorandum from Carole Showers, Director, Office of
Policy, ``Request for a List of Surrogate Countries for an
Adminstrative Review of the Antidumping Duty Order on Pure Magnesium
(``Magnesium'') from the People's Republic of China (``PRC''),''
dated July 20, 2010.
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After evaluating interested parties' comments, the Department has
determined that India is the appropriate surrogate country to use in
this review in accordance with section 773(c)(4) of the Act. The
Department based its decision on the following facts: (1) India is at a
level of economic development comparable to that of the PRC; (2) India
is a significant producer of comparable merchandise, i.e., primary
aluminum; and (3) India provides the best opportunity to use quality,
publicly available data to value the FOPs. All the data submitted by
both Petitioner and TMI for our consideration as potential SVs and
surrogate financial ratios are sourced from India. Finally, on the
record of this review, we have usable SV data (including financial
data) from India, but no such surrogate data from other potential
surrogate country.
Therefore, because India best represents the experience of
producers of comparable merchandise operating in a surrogate country,
we have selected India as the surrogate country and, accordingly, have
calculated NV using Indian prices to value TMI's FOPs, when available
and appropriate. We have obtained and relied upon publicly available
information wherever possible.
In accordance with 19 CFR 351.301(c)(3)(ii), interested parties may
submit publicly available information to value the FOPs within 20 days
after the date of publication of the preliminary results of review.\14\
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\14\ In accordance with 19 CFR 351.301(c)(1), for the final
determination of this review, interested parties may submit factual
information to rebut, clarify, or correct factual information
submitted by an interested party less than ten days before, on, or
after the applicable deadline for submission of such factual
information. However, the Department notes that 19 CFR 351.301(c)(1)
permits new information only insofar as it rebuts, clarifies, or
corrects information recently placed on the record. The Department
generally cannot accept the submission of additional, previously
absent-from-the-record alternative SV information pursuant to 19 CFR
351.301(c)(1). See Glycine from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review and Final
Rescission, in Part, 72 FR 58809 (October 17, 2007), and
accompanying Issues and Decision Memorandum (``IDM'') at Comment 2.
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Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the country are
subject to government control and thus should be assessed a single
antidumping duty rate. See Policy Bulletin 05.1: Separate-Rates
Practice and Application of Combination Rates in Antidumping
Investigations involving Non-Market Economy Countries, available at
http://ia.ita.doc.gov/policy/bull05-1.pdf. It is the Department's
policy to assign all exporters of subject merchandise in an NME country
this single rate unless an exporter can demonstrate that it is
[[Page 33196]]
sufficiently independent so as to be entitled to a separate rate.
Exporters can demonstrate this independence through the absence of both
de jure and de facto governmental control over export activities. The
Department analyzes each entity exporting the subject merchandise under
a test 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, then a separate
rate analysis is not necessary to determine whether it is independent
from government control.
Separate Rate Recipients
TMI is the only respondent in this administrative review. TMI
reported that it is a wholly Chinese-owned company. Therefore, the
Department must analyze whether it can demonstrate the absence of both
de jure and de facto government control over export activities.
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) An absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies.\15\
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\15\ See Sparklers.
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The evidence provided by TMI supports a preliminary finding of de
jure absence of government control based on the following: (1) An
absence of restrictive stipulations associated with its business and
export licenses; (2) applicable legislative enactments decentralizing
control of companies; and (3) formal measures by the government
decentralizing control of companies.\16\
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\16\ See Foreign Trade Law of the People's Republic of China,
contained in TMI's AQR, at Exhibit A-2; see also Regulations of the
People's Republic of China on Administration of Registration of
Companies contained in TMI's AQR at Exhibit A-5.
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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.\17\ The Department has determined that an analysis
of de facto control is critical in determining whether respondents are,
in fact, subject to a degree of governmental control, which would
preclude the Department from assigning separate rates.
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\17\ See Silicon Carbide, 59 FR at 22587; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May
8, 1995).
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The evidence provided by TMI supports a preliminary finding of de
facto absence of government control based on the following: (1) The
absence of evidence that the export prices are set by or are subject to
the approval of a government agency; \18\ (2) the respondent has
authority to negotiate and sign contracts and other agreements; \19\
(3) the respondent has autonomy from the government in making decisions
regarding the selection of management; \20\ and (4) the respondent
retains the proceeds of its export sales and makes independent
decisions regarding disposition of profits or financing of losses.\21\
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\18\ See TMI's AQR, at 2-3, 6; see also the contract and the
purchase order between TMI and a U.S. Customer contained in TMI's
AQR at Exhibit A-6. See also TMI's 1st ASQR Exhibit SA-8.
\19\ See TMI's AQR at 7; see also TMI's 1st SQR at SA-10a.
\20\ See TMI's AQR at 8.
\21\ See TMI's AQR at 9-10.
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Therefore, the evidence placed on the record of this review by TMI
demonstrates an absence of de jure and de facto government control with
respect to TMI's exports of the merchandise under review, in accordance
with the criteria identified in Sparklers and Silicon Carbide.
Accordingly, we have determined that TMI has demonstrated its
eligibility for a separate rate.
Fair Value Comparisons
To determine whether sales of pure magnesium to the United States
by TMI were made at NV, we compared export price (``EP'') to NV, as
described in the ``Export Price'' and ``Normal Value'' sections of this
notice.
Export Price
In accordance with section 772(a) of the Act, EP is the price at
which the subject merchandise is first sold (or agreed to be sold)
before the date of importation by the producer or exporter of the
subject merchandise outside of the United States to an unaffiliated
purchaser in the United States or to an unaffiliated purchaser for
exportation to the United States, as adjusted under section 772(c) of
the Act. In accordance with section 772(a) of the Act, we have used EP
for TMI's U.S. sales because the subject merchandise was sold directly
to the unaffiliated customers in the United States prior to importation
and because constructed export price was not otherwise warranted.
We have based the EP on delivered prices to unaffiliated purchasers
in the United States. In accordance with section 772(c)(2)(A) of the
Act, we have made deductions from the starting price for movement
expenses, including expenses for foreign inland freight from the plant
to the port of exportation, domestic brokerage and handling,
international freight, marine insurance, brokerage and handling
expenses incurred in the United States, U.S. customs duty, freight from
the U.S. port to the customer, rebanding, inventory and warehouse
handling expenses. TMI neither reported nor claimed other adjustments
to EP.\22\
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\22\ See Memorandum to the File ``Analysis Memorandum for the
Preliminary Results of the 2009-2010 Administrative Review of Pure
Magnesium from the People's Republic of China: Tianjin Magnesium
International Co., Ltd. (``TMI'')'' (``TMI's Analysis Memorandum''),
dated May 31, 2011.
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Normal Value
Section 773(c)(1) of the Act provides that, the Department shall
determine NV using an FOP methodology if the merchandise is exported
from an NME country and the Department finds that the available
information does not permit the calculation of NV using home-market
prices, third-country prices, or constructed value under section 773(a)
of the Act. When determining NV in an NME context, the Department will
base NV on FOPs because the presence of government controls on various
aspects of these economies renders price comparisons and the
calculation of production costs invalid under our normal methodologies.
The Department's questionnaire requires that TMI provide information
regarding the weighted-average FOPs across all of the company's plants
that produce the subject merchandise, not just the FOPs from a single
plant. This methodology
[[Page 33197]]
ensures that the Department's calculations are as accurate as
possible.\23\
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\23\ See, e.g., 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 Issue and Decision Memorandum at Comment
19.
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In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to find an appropriate SV
to value FOPs, but when a producer sources an input from a market
economy and pays for it in market economy (``ME'') currency, the
Department may value the factor using the actual price paid for the
input.\24\ TMI reported that it did not purchase inputs from ME
suppliers for the production of the subject merchandise.\25\
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\24\ See 19 CFR 351.408(c)(1); see also Shakeproof Assembly
Components, Div. of Ill. Tool Works, Inc. v. United States, 268 F.3d
1376, 1382-1383 (Fed. Cir. 2001) (affirming the Department's use of
market-based prices to value certain FOPs).
\25\ See TMI's DQR at D-16.
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We calculated NV based on FOPs in accordance with sections
773(c)(3) and (4) of the Act and 19 CFR 351.408(c). The FOPs include
but are not limited to: (1) Hours of labor required; (2) quantities of
raw materials employed; (3) amounts of energy and other utilities
consumed; and (4) representative capital costs. The Department used
FOPs reported by TMI for materials, energy, labor, by-products, and
packing.
TMI stated that its producer generated three by-products during the
production process: magnesium waste, cement clinker, and coal tar.\26\
TMI requested by-product offsets to NV for all three products. TMI
provided record evidence establishing that all three by-products
generated during the course of production have commercial value.\27\
Therefore, for these preliminary results, we have granted TMI three by-
product offsets to its NV.\28\
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\26\ Id. at D-24 through D-26.
\27\ Id. at Exhibits D-8 through D-12; see also TMI's 2nd SQR at
3 and Exhibit 2S-5.
\28\ See TMI's Analysis Memorandum at 4.
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Factor Valuations
In accordance with section 773(c) of the Act, the Department
calculated NV based on FOPs reported by TMI for the POR. To calculate
NV, the Department multiplied the reported per-unit factor consumption
quantities by publicly available Indian SVs. In selecting the SVs, the
Department considered the quality, specificity, and contemporaneity of
the data. The Department adjusted input prices by including freight
costs to make them delivered prices, as appropriate. Specifically, the
Department added to Indian import SVs a surrogate freight cost using
the shorter of the reported distance from the domestic supplier to the
factory or the distance from the nearest seaport to the factory of
production. This adjustment is in accordance with the decision of the
U.S. Court of Appeals for the Federal Circuit (``CAFC'') in Sigma Corp.
v. United States, 117 F.3d 1401, 1407-08 (Fed. Cir. 1997). A detailed
description of all SVs used to value TMI's reported FOPs may be found
in the Factor Valuation Memorandum.
The Department calculated SVs for the majority of reported FOPs
purchased from NME sources using the contemporaneous, weighted-average
unit import value derived from the Monthly Statistics of the Foreign
Trade of India, as published by the Directorate General of Commercial
Intelligence and Statistics of the Ministry of Commerce and Industry,
Government of India in the Global Trade Atlas (``GTA''), available at
http://www.gtis.com/wta.htm (``GTA Indian Import Statistics'').\29\ GTA
Indian Import Statistics were reported in India Rupees and are
contemporaneous with the POR. In selecting the best available
information for valuing FOPs in accordance with section 773(c)(1) of
the Act, the Department's practice is to select, to the extent
practicable, SVs which are non-export average values, most
contemporaneous with the POR, product-specific, and tax-exclusive.\30\
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\29\ See Factor Valuation Memorandum.
\30\ See, e.g., Notice of Preliminary Determination of Sales at
Less Than Fair Value, Negative Preliminary Determination of Critical
Circumstances and Postponement of Final Determination: Certain
Frozen and Canned Warmwater Shrimp From the Socialist Republic of
Vietnam, 69 FR 42672, 42682 (July 16, 2004), unchanged in Final
Determination of Sales at Less Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69
FR 71005 (December 8, 2004).
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In those instances where the Department could not obtain publicly
available information contemporaneous with the POR with which to value
FOPs, the Department adjusted the publicly available SVs using the
Indian Wholesale Price Index, as published in the International
Financial Statistics of the International Monetary Fund.\31\
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\31\ See Factor Valuation Memorandum.
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Furthermore, with regard to Indian import-based SVs, we have
disregarded prices that we have reason to believe or suspect may be
subsidized, such as those from Indonesia, South Korea, and Thailand. We
have found in other proceedings that these countries maintain broadly
available, non-industry-specific export subsidies and, therefore, it is
reasonable to infer that all exports to all markets from these
countries may be subsidized.\32\ We are 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.\33\
Rather, the Department was instructed by Congress to base its decision
on information that is available to it at the time it is making its
determination. In accordance with the foregoing, we have not used
prices from these countries in calculating the Indian import-based SVs.
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\32\ See Final Results Of Redetermination Pursuant To Court
Remand, dated February 25, 2010, Jinan Yipin Corp., Ltd. v. United
States, 637 F. Supp. 2d 1183 (CIT 2009). See also 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); and China Nat'l Mach. Import & Export Corp.
v. United States, 293 F. Supp. 2d 1334 (CIT 2003), affirmed 104 Fed.
Appx. 183 (Fed. Cir. 2004).
\33\ See H.R. Rep. No. 100-576 at 590 (1988).
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The Department used GTA Indian Import Statistics to calculate SVs
for raw materials (i.e., ferrosilicon, fluorite powder, sulphur powder,
and sulfuric acid), packing materials (i.e., plastic bags, steel bands,
and plastic bands), and by-products (i.e., magnesium waste, cement
clinker, and coal tar).
For dolomite, we continue to find, as we did in the previous
segments of this proceeding, that it is reasonable to conclude that GTA
data represent prices of imported dolomite in the high-end, value-added
product range while the dolomite used to produce subject merchandise is
more of a high-bulk, low-value commodity.\34\ Therefore, as in the
2008-2009 administrative review, we have preliminarily determined to
use the audited financial statements of Indian producers submitted on
the record of this review for the SV for dolomite.\35\ TMI placed the
audited financial statements of two companies on the record covering
the period April 1, 2009 through March 31, 2010: Bisra Stone Lime
Company Ltd. (``Bisra'') and Anjani Portland Cement Limited
[[Page 33198]]
(``Anjani'').\36\ Petitioner placed on the record the audited financial
statements for two Indian metal companies covering the same period:
Tata Sponge Iron Ltd (``Tata'') and Bhushan Steel Limited
(``Bhushan''). In examining these financial statements, we have
determined that the prices reflected in the financial statements of the
four companies represent the best available information on the record
with which to value dolomite. All of these financial statements are
fully legible and generally contemporaneous with the POR. The companies
were profitable and did not receive subsidies that the Department has
found to be countervailable and would otherwise taint the prices of
materials that it sold or consumed. Therefore, we have preliminary
determined the SV of dolomite based on the simple average of domestic
prices for dolomite provided in the audited financial statements of
these four companies.
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\34\ See Pure Magnesium 06-07, and accompanying IDM at Comment
1. In addition, see TMI's SV Comments at Exhibits SV-2C and SV-2D,
which respectively contain, British Geological Survey (2006):
Dolomite and A Review of the Dolomite and Limestone Industry in
South Africa Report R43/2003.
\35\ See Pure Magnesium From the People's Republic of China:
Final Results of the 2008-2009 Antidumping Duty Administrative
Review of the Antidumping Duty Order, 75 FR 80791 (December 23,
2010).
\36\ See TMI's SV Comments at Exhibits SV-2F and SV-2G.
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We valued flux No.2, which consists of magnesium chloride,
potassium chloride, and sodium chloride, using data from Chemical
Weekly. We consider both Chemical Weekly and GTA Indian Import
Statistics to be reliable sources and, as such, the Department has used
them in past cases to value chemical component inputs. In the instant
case, however, we have determined, as we have been in the three
immediately preceding segments of this proceeding, that Chemical Weekly
is the best available information for valuing flux because the data are
publicly available prices, are contemporaneous with the POR, are
specific to TMI's input, and are representative of prices in India.\37\
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\37\ See Factor Valuation Memorandum at 6-7
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As a consequence of the decision of the CAFC in Dorbest Ltd. v.
United States, 604 F. 3d 1363 (Fed. Cir. 2010), the Department no
longer relies on the regression-based wage rate described in 19 CFR
351.408(c)(3). The Department is continuing to evaluate options for
determining labor values in light of the recent CAFC decision. For
these preliminary results, we have calculated an hourly wage rate to
use in valuing the reported labor input by averaging earnings and/or
wages in countries that are economically-comparable to the PRC and that
are significant producers of comparable merchandise. To calculate the
hourly wage data, we used wage rate data reported by the International
Labor Organization (``ILO'').\38\ Because an industry-specific dataset
relevant to this proceeding exists within the Department's preferred
ILO source, we used industry-specific data to calculate a surrogate
wage rate for this review, in accordance with section 773(c)(1) of the
Act.
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\38\ The ILO industry-specific data is reported according to the
International Standard Industrial Classification of all Economic
Activities (``ISIC'') code, which is maintained by the United
Nations Statistical Division and is periodically updated. These
updates are referred to as ``Revisions.'' The ILO, an organization
under the auspices of the United Nation, utilizes this
classification for reporting purposes. Currently, wage and earnings
data are available from the ILO under the following revisions: ISIC-
Rev.2, ISIC-Rev.3, and most recently, ISIC-Rev.4. The ISIC code
establishes a two-digit breakout for each manufacturing category,
and also often provides a three- or four-digit sub-category for each
two-digit category. Depending on the country, data may be reported
at either the two-, three- or four-digit subcategory.
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For this review, the Department has calculated the wage rate using
a simple average of the data provided to the ILO under Sub-
Classification 27 (``Manufacture of basic metal'') of the ISIC-Revision
3 by countries determined to be both economically-comparable and
significant producers to the PRC. The Department finds the two-digit
description under Sub-Classification 27 is the best available wage rate
surrogate value on the record because it is specific to, and derived
from, industries that produce merchandise comparable to the subject
merchandise. Consequently, we average the ILO industry-specific wage
rate data or earnings data vailable from the following countries found
to be economically comparable to the PRC and to be significant
producers of comparable merchandise: Egypt, Indonesia, Philippines,
Ukraine, Jordan, Thailand, Ecuador, and Peru.\39\ On this basis, the
Department calculated a simple average, industry specific wage rate of
$1.96 for these preliminary results.\40\
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\39\ 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.
\40\ See the Factor Value Memorandum at 9 and Exhibit 10.
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We valued electricity using the updated electricity price data for
small, medium, and large industries, as published by the Central
Electricity Authority, an administrative body of the Government of
India, in its publication titled Electricity Tariff & Duty and Average
Rates of Electricity Supply in India, dated March 2008.\41\ These
electricity rates represent actual country-wide, publicly-available
information on tax-exclusive electricity rates charged to small,
medium, and large 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.
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\41\ See Factor Valuation Memorandum at 6.
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To value steam coal, we used steam coal prices from the December
12, 2007, CIL's Coal Pricing Circular. See CIL: S&M: GM(F): Pricing
1124, dated 12 December 2007.\42\ Since TMI reports using non-coking
coal with a useful heat value of 5500 kcal/kg,\43\ we calculated the SV
for steam coal by averaging the prices of long-flame grade C non-coking
coal and non-long-flame grade C non-coking steam coal, both of which
have UHV exceeding 4940 kcal/kg, but not exceeding 5600 kcal/kg, from
the December 12, 2007, CIL's Coal Pricing Circular.\44\ We did not
inflate this value to the current POR because the steam coal rates
represent the rates that were in effect until October 16, 2009,\45\ and
are, therefore, contemporaneous with the POR. Finally, we have applied
an additional fixed surcharge of 165 rupees (``Rs.'')/metric ton to our
calculation of the average of the prices of long-flame grade C non-
coking coal and non-long-flame grade C non-coking coal from CIL.\46\
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\42\ See Factor Valuation Memorandum at 6.
\43\ See TMI's DQR at D-12. See also Annexure X of CIL's Coal
Pricing Circular in the Factor Valuation Memorandum (identifying the
range of kcal/kg in each grade of coal).
\44\ See Factor Valuation Memorandum.
\45\ See TMI's December 7, 2010 SV submission, Exhibit SV-6.
\46\ See http://www.coalindia.nic.in/pricing.htm, General
Remarks Note 2 (``Additional Rs. 165 shall be charged on pithead
price of Run of Mine Coal for the supply of steam coal.'').
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We valued truck freight expenses using an Indian per-unit average
rate calculated from data on the following Web site: http://www.infobanc.com/logistics/logtruck.htm \47\ The logistics section of
this Web site contains inland freight truck rates between many large
Indian cities. We did not inflate this rate since it is contemporaneous
with the POR.
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\47\ See Factor Valuation Memorandum at 10.
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We valued brokerage and handling using a price list of export
procedures necessary to export a standardized cargo of goods in India.
The price list is compiled based on a survey case study of the
procedural requirements for trading a standard shipment of goods by
ocean transport in India that is published in Doing Business 2010:
India, published by the World Bank.\48\
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\48\ Id.
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We valued marine insurance using a price quote retrieved from RJG
Consultants, online at http://www.rjgconsultants.com/163.html, an
[[Page 33199]]
ME provider of marine insurance.\49\ We did not inflate this rate since
it is contemporaneous with the POR
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\49\ Id.
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According to 19 CFR 351.408(c)(4), the Department is directed to
value overhead, general, and administrative expenses (``SG&A''), and
profit using non-proprietary information gathered from producers of
identical or comparable merchandise in the surrogate country. In this
administrative review, Petitioner and TMI, collectively, placed on the
record financial statements for ten Indian metal producers.
Specifically, Petitioner submitted the 2009-2010 financial statements
for two producers of primary aluminum--National Aluminium Company
Limited (``NALCO'') and Bharat Aluminum Co., Ltd; one producer of zinc
products--Hindustan Zinc Limited (``Hindustan Zinc''); and a producer
of copper--Hindustan Copper Limited.\50\ In addition, Petitioner
included the 2008-2009 financial statements for one Indian producer of
alloy steel, titanium, and molybdenum--Midhani Dhatu Nigam Limited for
the Department's consideration (``Midhani'').\51\ TMI submitted the
2009-2010 financial statements for one producer of primary aluminum--
Hindalco Industries Limited (``HINDALCO''), and four producers of
aluminum products--Sudal Industries Ltd. (``Sudal''), Century
Extrusions Ltd. (``Century''), Bhoruka Aluminum (``Bhoruka'') and
Gujurat Foils Limited.\52\
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\50\ In its May 4, 2011 submission of Petitioner's Comments
Concerning The Preliminary Results, Petitioner argued that financial
statements for Madras Aluminum Company (``MALCO'') 2006/2007is the
second best information for purposes of selecting financial
statements, notwithstanding the financial statements are not on the
record. The Department disagrees with Petitioner and rejects the use
of financial statements because they are not contemporaneous.
Herein, the financial statements for MALCO 2006/2007 are now
officially on the record for this review.
\51\ See Petitioner's SV Submission at Exhibits 5 and 6.
\52\ See TMI's SV Submission at Exhibits SV-13A through SV-13E.
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For the following reasons, we have determined not to rely on the
2009-2010 audited financial statements of Sudal, Century, Bhoruka,
Gujarat, HINDALCO, NALCO, Hindustan Zinc, and Hindustan Copper, and the
2008-2009 audited financial statements of Midhani, as surrogate
financial statements under 19 CRF 351.408(c)(4). The Department, as in
the three immediately preceding segments of this proceeding,\53\
continues to prefer selecting financial statements from a producer of
primary aluminum, which the Department has determined to be comparable
to pure magnesium for purposes of selecting financial statements.\54\
Accordingly, we decline to rely on audited financial statements for
Sudal, Century, Bhoruka, and Gujurat because these are not producers of
preliminary aluminum; rather, they produced downstream products of
aluminum (e.g., aluminum extruders and foils).
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\53\ See Pure Magnesium from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review, 73 FR 76336
(December 16, 2008) and accompanying IDM (``2006-2007 Pure Magnesium
Review'') (MALCO's financial statements were used); Pure Magnesium
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review, 74 FR 66089 (December 14, 2009) and
accompanying IDM (``2007-2008 Pure Magnesium Review'') (MALCO's
financial statements were used); Pure Magnesium from the People's
Republic of China: Final Results of the 2008-2009 Antidumping Duty
Administrative Review of the Antidumping Duty Order, 75 FR 80791
(December 23, 2010) and accompanying IDM (``2008-2009 Pure Magnesium
Review'') (MALCO's financial statements were used).
\54\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value and Postponement of Final Determination: Pure
Magnesium and Alloy Magnesium from the People's Republic of China,
59 FR 55424 (November 7, 1994).
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Second, the Department declines to use financial statements for
Hindustan Zinc and NALCO because the Department has a well-established
practice of disregarding financial statements where there is evidence
that the company received subsidies that the Department has previously
found to be countervailable, and where there are other sufficient
reliable and representative data on the record for purposes of
calculating the surrogate financial ratios.\55\ Hindustan Zinc received
benefits from the Export Promotion Capital Goods Scheme (``EPCG''),\56\
a subsidy that the Department has determined to be countervailable.\57\
Similarly, NALCO received, during the POR, EPCG subsidy notwithstanding
it produced primary aluminum.\58\ Third, we find that the financial
statements for HINDALCO are not the best information available for
purposes of selecting financial statements because only one tenth of
HINDALCO's production was related to primary aluminum during the
POR.\59\ In contrast, more than half of its production was related to
copper, a product that the Department has determined not to be
comparable to pure magnesium.\60\ Likewise, the Department rejects the
use of financial statements for Hindustan Copper because it produced
copper. Fourth, the Department rejects the use of financial statements
for Midhani because the Department has not determined that any of the
three principal products made by the company, alloy steel, titanium,
and molybdenum, are comparable to pure magnesium. Because the
Department has available to it a financial statement from a primary
aluminum producer and the period covered in Midhani's financial
statements is not the most contemporaneous to the POR, we do not need
to make a finding regarding the comparability of Midhani's merchandise
to pure magnesium.
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\55\ See Certain Steel Nails from the People's Republic of
China: Final Results of the First New Shipper Review, 75 FR 34424
(June 17, 2010) and accompanying IDM at Comment 4; 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 IDM at Comment 17.A.
\56\ Petitioner's Initial Comments on Vaulation of Factor of
Production, dated Dec. 7, 2010, Exhibit 10, at 86.
\57\ See Certain Hot-Rolled Carbon Steel Flat Products from
India: Final Results of Countervailing Duty Administrative Review,
75 FR 43488 (July 26, 2010) and accompanying IDM at Comment 2.
\58\ See Petitioner's Initial Comments on Vaulation of Factor of
Production, dated Dec. 7, 2010, Exhibit 8, at 70.
\59\ See TMI's Surrogate Vaule Information, dated Dec. 7, 2011,
Exhibit SV-13E, at 82.
\60\ See Pure Magnesium From the People's Republic of China:
Final Results of the 2008-2009 Antidumping Duty Administrative
Review of the Antidumping Duty Order, 75 FR 80791 (December 23,
2010), and accompanying IDM at Comment 2.
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Finally, the Department finds that the financial statements for
Bharat are the best information available for purposes of selecting
financial statements. Bharat produced primary aluminum, which the
Department has determined to be comparable to pure magnesium. There is
no evidence in the financial statements that Bharat received any
benefits that the Department has determined to be countervailable.
Bharat was profitable during the POR. Further, its audited financial
statements are complete and are sufficiently detailed to disaggregate
materials, labor, overhead, and SG&A expenses. As a result, we have
preliminarily determined to use the 2009-2010 audited financial
statements of Bharat as the basis of the financial ratios in this
review.
For a complete listing of all the inputs and a detailed discussion
about our SV selections, see the Factor Valuation Memorandum.
Currency Conversion
Where necessary, 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 as certified by the Federal Reserve Bank on
the date of the U.S. sale.
[[Page 33200]]
Duty Absorption
Section 751(a)(4) of the Act provides for the Department, if
requested, to determine during an administrative review initiated two
or four years after publication of the order, whether antidumping
duties have been absorbed by a foreign producer or exporter, if the
subject merchandise is sold in the United States through an affiliated
importer. See also, 19 CFR 351.213(j). On July 10, 2010, Petitioner
requested that the Department determine whether TMI had absorbed
antidumping duties for U.S. sales of pure magnesium made during the
POR. Since the instant review was initiated more than five years after
publication of the pure magnesium order, this request is untimely and,
as such, we have not conducted a duty absorption analysis.
Weighted-Average Dumping Margin
The preliminary weighted-average dumping margin is as follows:
Pure Magnesium from the PRC
------------------------------------------------------------------------
Weighted-
Exporter average margin
(percentage)
------------------------------------------------------------------------
Tianjin Magnesium International Co. Ltd................. 0
------------------------------------------------------------------------
Disclosure
The Department will disclose calculations performed for 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). Any
interested party may request a hearing within 30 days of publication of
these preliminary results.\61\ If a hearing is requested, the
Department will announce the hearing schedule at a later date.
Interested parties may submit case briefs and/or written comments no
later than 30 days after the date of publication of the preliminary
results of review.\62\ 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 time limit for filing the case
briefs.\63\ Further, we request that parties submitting written
comments provide the Department with an additional electronic copy of
those comments on a CD-ROM. The Department intends to issue the final
results of this administrative review, which will include the results
of its analysis of issues raised in all comments, and at a hearing,
within 120 days of publication of these preliminary results, pursuant
to section 751(a)(3)(A) of the Act.
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\61\ See 19 CFR 351.310(c).
\62\ See 19 CFR 351.309(c)(ii).
\63\ See 19 CFR 351.309(d).
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Assessment Rates
The Department will determine, and CBP shall assess, antidumping
duties on all appropriate entries of subject merchandise in accordance
with the final results of this review.\64\ For assessment purposes, we
calculated importer- or customer-specific assessment rates for
merchandise subject to this review. We calculated an ad valorem rate
for each importer or customer by dividing the total dumping margins for
reviewed sales to that party by the total entered value associated with
those transactions. For duty-assessment rates calculated on this basis,
we will direct CBP to assess the resulting ad valorem rate against the
entered customs values for the subject merchandise. Where appropriate,
we calculated a per-unit rate for each importer or customer by dividing
the total dumping margins for reviewed sales to that party by the total
sales quantity associated with those transactions. For duty-assessment
rates calculated on this basis, we will direct CBP to assess the
resulting per-unit rate against the entered quantity of the subject
merchandise. Where an importer- or customer-specific assessment rate is
de minimis (i.e., less than 0.50 percent) in accordance with the
requirement of 19 CFR 351.106(c)(2), the Department will instruct CBP
to assess that importer's or customer's entries of subject merchandise
without regard to antidumping duties. We intend to instruct CBP to
liquidate entries containing subject merchandise exported by the PRC-
wide entity at the PRC-wide rate we determine in the final results of
this review. The Department intends to issue appropriate assessment
instructions directly to CBP 15 days after publication of the final
results of this review.
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\64\ See 19 CFR 351.212(b).
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Cash Deposit Requirements
The following cash deposit requirements will be effective upon
publication of the final results of this administrative review for
shipments of the subject merchandise from the PRC entered, or withdrawn
from warehouse, for consumption on or after the publication date, as
provided by sections 751(a)(2)(C) of the Act: (1) For TMI, which has a
separate rate, the cash deposit rate will be that established in the
final results of this review (except, if the rate is zero or de
minimis, zero cash deposit will be required); (2) for previously
investigated or reviewed PRC and non-PRC exporters not listed above
that received a separate rate in a prior segment of this proceeding,
the cash deposit rate will continue to be the exporter-specific rate;
(3) for all PRC exporters of subject merchandise that have not been
found to be entitled to a separate rate, the cash deposit rate will be
the PRC-wide rate of 111.73 percent; and (4) for all non-PRC exporters
of subject merchandise which have not received their own rate, the cash
deposit rate will be the rate applicable to the PRC exporter that
supplied that non-PRC exporter. These 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 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 administrative review and notice are in accordance with
sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.
Dated: May 31, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2011-14044 Filed 6-7-11; 8:45 am]
BILLING CODE 3510-DS-P