[Federal Register Volume 77, Number 44 (Tuesday, March 6, 2012)]
[Notices]
[Pages 13284-13294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-5448]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-929]
Small Diameter Graphite Electrodes From the People's Republic of
China: Preliminary Results and Partial Rescission of 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 the
administrative review of the antidumping duty order on small diameter
graphite electrodes (graphite electrodes) from the People's Republic of
China (PRC), covering the period February 1, 2010, through January 31,
2011. The Department has preliminarily determined that during the
period of review (POR) respondents in this proceeding have made sales
of subject merchandise at less than normal value (NV). If these
preliminary results are adopted in our final results of review, we will
instruct U.S. Customs and Border Protection (CBP) to assess antidumping
duties on all appropriate entries of subject merchandise during the
POR. The Department is also rescinding this review for those exporters
for which requests for review were timely withdrawn.\1\ Furthermore, we
determine that 16 companies for which a review was requested have not
[[Page 13285]]
demonstrated entitlement to a separate rate.\2\ As a result, we have
preliminarily determined that they are part of the PRC-wide entity, and
are subject to the PRC-wide entity rate.\3\
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\1\ See ``Partial Rescission of the Administrative Review''
section below.
\2\ See ``Separate Rates'' section below.
\3\ See ``PRC-Wide Entity'' section below.
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Interested parties are invited to comment on these preliminary
results. We will issue final results no later than 120 days from the
date of publication of this notice, pursuant to section 751(a)(3)(A) of
the Tariff Act of 1930, as amended (the Act).
DATES: Effective Date: March 6, 2012.
FOR FURTHER INFORMATION CONTACT: Dmitry Vladimirov or Minoo Hatten, AD/
CVD Operations, Office 1, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington DC 20230; telephone: (202) 482-0665
or (202) 482-1690, respectively.
Background
On February 26, 2009, we published in the Federal Register the
antidumping duty order on graphite electrodes from the PRC.\4\ On
February 1, 2011, we published a notice of opportunity to request an
administrative review of this order.\5\ On February 25 and February 28,
2011, we received timely review requests in accordance with 19 CFR
351.213(b) from Fushun Jinly Petrochemical Carbon Co., Ltd. (Fushun
Jinly), Xinghe County Muzi Carbon Co., Ltd. (Muzi Carbon), Sichuan
Guanghan Shida Carbon Co., Ltd. (Shida Carbon), and Beijing Fangda
Carbon Tech Co., Ltd., Chengdu Rongguang Carbon Co., Ltd., Fangda
Carbon New Material Co., Ltd., Fushun Carbon Co., Ltd., and Hefei
Carbon Co., Ltd. (collectively, the Fangda Group). On February 25,
2011, the Department also received a timely request for an
administrative review of 117 companies from SGL Carbon LLC and Superior
Graphite Co. (the petitioners). On March 31, 2011, we initiated an
administrative review of the antidumping duty order on graphite
electrodes from the PRC with respect to 160 companies.\6\
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\4\ See Antidumping Duty Order: Small Diameter Graphite
Electrodes from the People's Republic of China, 74 FR 8775 (February
26, 2009).
\5\ See Antidumping or Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity to Request Administrative
Review, 76 FR 5559 (February 1, 2011).
\6\ In Initiation of Antidumping Duty Administrative Reviews,
Requests for Revocation in Part, and Deferral of Administrative
Review, 76 FR 17825 (March 31, 2011) (Initiation Notice), we listed
additional names by which certain companies are also known, or were
known formerly, as reflected in the petitioners' February 25, 2011,
review request.
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On April 4, 2011, we released to interested parties CBP data
covering POR imports of graphite electrodes from the PRC and invited
comments on the Department's selection of respondents for individual
examination.\7\ On May 6, 2011, we selected Jilin Carbon Import and
Export Company (Jilin Carbon) and Fushun Jinly for individual
examination in this review.\8\
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\7\ See the Department's memorandum to ``All Interested
Parties,'' dated April 4, 2011.
\8\ See the Department's memorandum entitled ``Small Diameter
Graphite Electrodes from the People's Republic of China: Selection
of Respondents for Individual Examination,'' dated May 6, 2011
(Respondent Selection Memo).
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On May 11, 2011, we sent the antidumping duty questionnaire to
Jilin Carbon and Fushun Jinly. On May 31, 2011, we received separate-
rate certifications from the Fangda Group and Muzi Carbon, and a
separate-rate application from Shida Carbon.\9\ On June 13, 2011, and
June 14, 2011, the petitioners submitted comments concerning separate-
rate certifications provided by Muzi Carbon and the Fangda Group,
respectively. On June 14, 2011, and June 27, 2011, in response to our
requests for information, Muzi Carbon clarified certain information in
its separate-rate certification. On June 30, 2011, the petitioners
submitted comments concerning the separate-rate application provided by
Shida Carbon. On July 20, 2011, in response to our request for
information, Shida Carbon clarified certain information in its
separate-rate application.
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\9\ See ``Separate Rates'' section below.
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On June 29, 2011, the petitioners filed a timely request for
rescission of review with respect to 134 of the 160 companies for which
the Department initiated a review.\10\ Between June 15 and November 29,
2011, Fushun Jinly responded to the Department's original and
supplemental questionnaires. Jilin Carbon did not respond to the
Department's questionnaire.
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\10\ See ``Partial Rescission of the Administrative Review''
section below.
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On November 1, 2011, and February 7, 2012, we extended the time
limit for the preliminary results of review by 120 days as allowed
under section 751(a)(3)(A) of the Act to February 28, 2012.\11\
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\11\ See Small Diameter Graphite Electrodes From the People's
Republic of China: Extension of Time Limit for Preliminary Results
of Antidumping Duty Administrative Review, 76 FR 67411 (November 1,
2011), and Small Diameter Graphite Electrodes from the People's
Republic of China: Extension of Time Limit for Preliminary Results
of Antidumping Duty Administrative Review, 77 FR 6060 (February 7,
2012).
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Scope of the Order
The merchandise covered by the order includes all small diameter
graphite electrodes of any length, whether or not finished, of a kind
used in furnaces, with a nominal or actual diameter of 400 millimeters
(16 inches) or less, and whether or not attached to a graphite pin
joining system or any other type of joining system or hardware. The
merchandise covered by the order also includes graphite pin joining
systems for small diameter graphite electrodes, of any length, whether
or not finished, of a kind used in furnaces, and whether or not the
graphite pin joining system is attached to, sold with, or sold
separately from, the small diameter graphite electrode. Small diameter
graphite electrodes and graphite pin joining systems for small diameter
graphite electrodes are most commonly used in primary melting, ladle
metallurgy, and specialty furnace applications in industries including
foundries, smelters, and steel refining operations. Small diameter
graphite electrodes and graphite pin joining systems for small diameter
graphite electrodes that are subject to the order are currently
classified under the Harmonized Tariff Schedule of the United States
(HTSUS) subheading 8545.11.0000. The HTSUS number is provided for
convenience and customs purposes, but the written description of the
scope is dispositive.
Partial Rescission of the Administrative Review
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an
administrative review, in whole or in part, if a party that requested
the review withdraws the request within 90 days of the date of
publication of the initiation notice.
For 152 of the companies for which the Department initiated an
administrative review, the petitioners were the only party that
requested the review. On June 29, 2011, the petitioners timely withdrew
their review requests for 134 of those 152 companies. Further, on May
17, 2011, Muzi Carbon clarified its request for review in which Muzi
Carbon was named erroneously as Xinghe Muzi Carbon Co., Ltd.\12\
Therefore, in accordance with 19 CFR 351.213(d)(1), we are rescinding
this administrative review with respect to 135 companies named as
follows in the Initiation Notice:
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\12\ The petitioners did not request a review on Xinghe Muzi
Carbon Co., Ltd.
1. 5-Continent Imp. & Exp. Co., Ltd.
2. Acclcarbon Co., Ltd.
3. Allied Carbon (China) Co., Limited
4. AMGL
[[Page 13286]]
5. Anssen Metallurgy Group Co., Ltd.
6. Beijing Xinchengze Inc.
7. Beijing Xincheng Sci-Tech. Development Inc.
8. Brilliant Charter Limited
9. Chang Cheng Chang Electrode Co., Ltd.
10. Chengdelh Carbonaceous Elements Factory
11. Chengdu Jia Tang Corp.
12. China Industrial Mineral & Metals Group
13. China Shaanxi Richbond Imp. & Exp. Industrial Corp. Ltd.
14. China Xingyong Carbon Co., Ltd.
15. CIMM Group Co., Ltd.
16. Dalian Carbon & Graphite Corporation
17. Dalian Hongrui Carbon Co., Ltd.
18. Dalian Honest International Trade Co., Ltd.
19. Dalian Horton International Trading Co., Ltd.
20. Dalian LST Metallurgy Co., Ltd.
21. Dalian Shuangji Co., Ltd.
22. Dalian Thrive Metallurgy Imp. & Exp. Co., Ltd.
23. Datong Carbon
24. Datong Carbon Plant
25. Datong Xincheng Carbon Co., Ltd.
26. De Well Container Shipping Corp.
27. Dewell Group
28. Dignity Success Investment Trading Co., Ltd.
29. Double Dragon Metals and Mineral Tools Co., Ltd.
30. Fangda Lanzhou Carbon Joint Stock Company Co. Ltd.
31. Foset Co., Ltd.
32. GES (China) Co., Ltd.
33. Guangdong Highsun Yongye (Group) Co., Ltd.
34. Haimen Shuguang Carbon Industry Co., Ltd.
35. Handan Hanbo Material Co., Ltd.
36. Hebei Long Great Wall Electrode Co., Ltd.
37. Heilongjiang Xinyuan Carbon Products Co., Ltd.
38. Heilongjiang Xinyuan Metacarbon Company, Ltd.
39. Henan Sanli Carbon Products Co., Ltd.
40. Hopes (Beijing) International Co., Ltd.
41. Huanan Carbon Factory
42. Hunan Mec Machinery and Electronics Imp. & Exp. Corp.
43. Hunan Yinguang Carbon Factory Co., Ltd.
44. Inner Mongolia QingShan Special Graphite and Carbon Co.,
Ltd.
45. Inner Mongolia Xinghe County Hongyuan Electrical Carbon
Factory
46. Jiang Long Carbon
47. Jiangsu Yafei Carbon Co., Ltd.
48. Jiaozuo Zhongzhou Carbon Products Co., Ltd.
49. Jichun International Trade Co. Ltd. of Jilin Province
50. Jiexiu Juyuan Carbon Co., Ltd./Jiexiu Ju-Yuan & Coaly Co.,
Ltd.
51. Jilin Songjiang Carbon Co Ltd.
52. Jinneng Group
53. Jinyu Thermo-Electric Material Co., Ltd.
54. Kaifeng Carbon Company Ltd.
55. KASY Logistics (Tianjin) Co., Ltd.
56. Kimwan New Carbon Technology and Development Co., Ltd.
57. Kingstone Industrial Group Ltd.
58. L & T Group Co., Ltd.
59. Laishui Long Great Wall Electrode Co. Ltd.
60. Lanzhou Carbon Co., Ltd./Lanzhou Carbon Import & Export
Corp.
61. Lanzhou Hailong Technology
62. Lanzhou Ruixin Industrial Material Co., Ltd.
63. LH Carbon Factory of Chengde
64. Lianxing Carbon Qinghai Co., Ltd.
65. Lianxing Carbon Science Institute
66. Lianxing Carbon (Shandong) Co., Ltd.
67. Lianyungang Jianglida Mineral Co., Ltd.
68. Lianyungang Jinli Carbon Co., Ltd.
69. Liaoyang Carbon Co. Ltd.
70. Linghai Hongfeng Carbon Products Co., Ltd.
71. Linyi County Lubei Carbon Co., Ltd.
72. Maoming Yongye (Group) Co., Ltd.
73. Nantong Falter New Energy Co., Ltd.
74. Nantong River-East Carbon Co., Ltd.
75. Nantong River-East Carbon Joint Stock Co., Ltd.
76. Nantong Yangtze Carbon Corp. Ltd., Orient (Dalian) Carbon
Resources Developing Co., Ltd.
77. Peixian Longxiang Foreign Trade Co. Ltd.
78. Qingdao Grand Graphite Products Co., Ltd.
79. Quingdao Haosheng Metals & Minerals Imp. & Exp. Co., Ltd.
80. Qingdao Haosheng Metals Imp. & Exp. Co., Ltd.
81. Qingdao Likun Graphite Co., Ltd.
82. Qingdao Liyikun Carbon Development Co., Ltd.
83. Qingdao Ruizhen Carbon Co., Ltd.
84. Rt Carbon Co., Ltd.
85. Ruitong Carbon Co., Ltd.
86. Shandong Basan Carbon Plant
87. Shandong Zibo Contient Carbon Factory
88. Shanghai Carbon International Trade Co., Ltd.
89. Shanghai GC Co., Ltd.
90. Shanghai Jinneng International Trade Co., Ltd.
91. Shanghai P.W. International Ltd.
92. Shanghai Shen-Tech Graphite Material Co., Ltd.
93. Shanghai Topstate International Trading Co., Ltd.
94. Shenyang Jinli Metals & Minerals Imp. & Exp. Co., Ltd.
95. Shanxi Datong Energy Development Co., Ltd.
96. Shanxi Foset Carbon Co. Ltd.
97. Shanxi Jiexiu Import and Export Co., Ltd.
98. Shanxi Jinneng Group Co., Ltd.
99. Shanxi Yunheng Graphite Electrode Co., Ltd.
100. Shenyang Jinli Metals & Minerals Imp. & Exp. Co., Ltd.
101. Shijaizhuang Carbon Co., Ltd.
102. Shijiazhuang Huanan Carbon Factory
103. Sichuan 5-Continent Imp. & Exp. Co., Ltd.
104. Sichuan GMT International Inc.
105. SMMC Group Co., Ltd.
106. Tangshan Kimwan Special Carbon & Graphite Co., Ltd.
107. Tengchong Carbon Co., Ltd.
108. Tianjin (Teda) Iron & Steel Trade Co., Ltd.
109. Tianjin Kimwan Carbon Technology and Development Co., Ltd.
110. Tianzhen Jintian Graphite Electrodes Co., Ltd.
111. Tianjin Yue Yang Industrial & Trading Co., Ltd.
112. Tielong (Chengdu) Carbon Co., Ltd.
113. UK Carbon & Graphite
114. United Carbon Ltd.
115. United Trade Resources, Inc.
116. Weifang Lianxing Carbon Co., Ltd.
117. World Trade Metals & Minerals Co., Ltd.
118. XC Carbon Group
119. Xinghe Muzi Carbon Co., Ltd
120. Xinghe Xingyong Carbon Co., Ltd.
121. Xinghe Xinyuan Carbon Products Co., Ltd.
122. Xinyuan Carbon Co., Ltd.
123. Xuanhua Hongli Refractory and Mineral Company
124. Xuchang Minmetals & Industry Co., Ltd.
125. Xuzhou Carbon Co., Ltd.
126. Xuzhou Electrode Factory
127. Xuzhou Jianglong Carbon Manufacture Co., Ltd.
128. Yangzhou Qionghua Carbon Trading Ltd.
129. Yixing Huaxin Imp & Exp Co. Ltd.
130. Youth Industry Co., Ltd.
131. Zhengzhou Jinyu Thermo-Electric Material Co., Ltd.
132. Zibo Continent Carbon Factory
133. Zibo DuoCheng Trading Co., Ltd.
134. Zibo Lianxing Carbon Co., Ltd.
135. Zibo Wuzhou Tanshun Carbon Co., Ltd.
Non-Market Economy Country Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (NME) country.\13\ In
accordance with section 771(18)(C)(i) of the Act, any determination
that a country is an NME country shall remain in effect until revoked
by the administering authority. None of the parties to this proceeding
has contested such treatment.
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\13\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination: Coated Free
Sheet Paper from the People's Republic of China, 72 FR 30758, 30760
(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).
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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 assigned a single
antidumping duty rate.\14\ It is the
[[Page 13287]]
Department's policy to assign all exporters of merchandise subject to
review in an NME country this single rate unless an exporter can
demonstrate that it is sufficiently independent so as to be entitled to
a separate rate. Exporters can demonstrate this independence through
the absence of both de jure and de facto government control over export
activities. The Department analyzes each entity exporting the subject
merchandise under a test articulated in 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
the 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). If the Department determines, however, 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.
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\14\ See, e.g., Certain Coated Paper Suitable for High-Quality
Print Graphics Using Sheet-Fed Presses From the People's Republic of
China: Notice of Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination, 75 FR 24892,
24899 (May 6, 2010), unchanged in Certain Coated Paper Suitable for
High-Quality Print Graphics Using Sheet-Fed Presses From the
People's Republic of China: Final Determination of Sales at Less
Than Fair Value, 75 FR 59217 (September 27, 2010).
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In order to demonstrate separate-rate status eligibility, the
Department normally requires entities for whom a review was requested,
and who were assigned a separate rate in a previous segment of this
proceeding, to submit a separate-rate certification stating that they
continue to meet the criteria for obtaining a separate rate.\15\ For
entities that were not assigned a separate rate in the previous segment
of a proceeding, to demonstrate eligibility for such, the Department
requires a separate-rate application.\16\
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\15\ See Initiation Notice, 76 FR at 17826.
\16\ See id.
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In this administrative review, of the 23 companies not selected for
individual examination \17\ and for which the review has not been
rescinded or for which the Department does not intend to rescind the
review, only three entities, the Fangda Group, Shida Carbon, and Muzi
Carbon, submitted separate-rate information. The remaining 16 companies
under review provided neither a separate rate application nor separate
rate certification, as applicable. Therefore, the Department
preliminarily determines that there were exports of merchandise under
review from 16 PRC exporters that did not demonstrate their eligibility
for separate rate status. As a result, the Department is treating these
16 PRC exporters as part of the PRC-wide entity, subject to the PRC-
wide rate.\18\ Additionally, we received a complete response to Section
A of the NME antidumping questionnaire from Fushun Jinly, which
contained information pertaining to the company's eligibility for a
separate rate.\19\
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\17\ These companies are the Fangda Group (comprising five
collapsed companies), Shida Carbon, Muzi Carbon, Dechang Shida
Carbon Co., Ltd., Fushun Carbon Plant, Fushun Jinli Petrochemical
Carbon Co., Ltd., Guanghan Shida Carbon Co., Ltd., Jilin Carbon
Graphite Material Co., Ltd., Lanzhou Hailong New Material Co.,
Liaoning Fangda Group Industrial Co., Ltd., Shida Carbon Group,
Sichuan Dechang Shida Co., Ltd., Sichuan Shida Trading Co., Ltd.,
Sinosteel Anhui Co., Ltd., Sinosteel Corp., Sinosteel Jilin Carbon
Co., Ltd., Sinosteel Jilin Carbon Imp. & Exp. Co., Ltd., Sinosteel
Sichuan Co., Ltd., and Xinghe County Muzi Carbon Plant.
\18\ See ``PRC-Wide Entity'' section below.
\19\ See Fushun Jinly's Section A questionnaire response, dated
June 15, 2011.
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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.\20\
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\20\ See Sparklers, 56 FR at 20589.
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The evidence provided by the Fangda Group, Fushun Jinly, Muzi
Carbon, and Shida Carbon 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 the
companies.\21\
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\21\ See Fushun Jinly's Section A questionnaire response, dated
June 15, 2011; the Fangda Group's and Muzi Carbon's separate rate
certifications, dated May 31, 2011, and Shida Carbon's separate rate
application, dated May 31, 2011.
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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.\22\
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\22\ See Silicon Carbide, 59 FR at 22586-87; see also Notice of
Final Determination of Sales at Less Than Fair Value: Furfuryl
Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May
8, 1995).
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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 over export activities which would
preclude the Department from assigning separate rates. For the Fangda
Group, Fushun Jinly, Muzi Carbon, and Shida Carbon we determine that
the evidence on the record supports a preliminary finding of de facto
absence of government control based on record statements and supporting
documentation showing that each respondent: (1) Sets its own export
prices independent of the government and without the approval of a
government authority; (2) retains the proceeds from its sales and makes
independent decisions regarding disposition of profits or financing of
losses; (3) has the authority to negotiate and sign contracts and other
agreements; and (4) has autonomy from the government regarding the
selection of management.\23\
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\23\ See Fushun Jinly's Section A questionnaire response, dated
June 15, 2011; the Fangda Group's and Muzi Carbon's separate rate
certifications, dated May 31, 2011, and Shida Carbon's separate rate
application, dated May 31, 2011.
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The evidence placed on the record of this review by the Fangda
Group, Fushun Jinly, Muzi Carbon, and Shida Carbon demonstrates an
absence of de jure and de facto government control with respect each
company's respective exports of the merchandise under review, in
accordance with the criteria identified in Sparklers and Silicon
Carbide. Therefore, we are preliminarily granting the Fangda Group,
Fushun Jinly, Muzi Carbon, and Shida Carbon each a separate rate.
Separate-Rate Comments
The petitioners assert that the Fangda Group and Shida Carbon do
not qualify for separate-rate status because these entities did not
have the requisite knowledge of destination of their respective sales.
Specifically, the petitioners contend that because neither the Fangda
Group nor Shida Carbon knew at the time of sale and shipment to U.S.
ports whether their shipments would be entered for consumption in the
United States during the POR, the Fangda Group and Shida Carbon did not
[[Page 13288]]
have any U.S. sales, as defined in the statute.
We preliminarily find that the petitioners' allegations with regard
to the Fangda Group's and Shida Carbon's knowledge of destination are
speculative and not supported by record evidence. It is the
Department's policy to assign a separate rate to an exporter that can
demonstrate that it is sufficiently independent from government
control. See Initiation Notice, 76 FR at 17826. Moreover, 19 CFR
351.213(e)(1)(i) specifically instructs that an administrative review
may cover ``entries, exports or sales of the subject merchandise''
during the POR. Because the Fangda Group and Shida Carbon were not
selected as mandatory respondents, the companies were not required and
did not report their U.S. sales information to the Department. Record
evidence does indicate, however, that both the Fangda Group and Shida
Carbon had reviewable U.S. transactions during the POR.\24\ Because the
Fangda Group and Shida Carbon had reviewable U.S. transactions during
the POR, irrespective of their knowledge of U.S. entry, and because
both companies also demonstrated their independence from the PRC
government, we preliminarily conclude that the Fangda Group and Shida
Carbon are both eligible to receive a separate rate.
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\24\ See the Department's memorandum entitled ``Administrative
Review of the Antidumping Duty Order on Small Diameter Graphite
Electrodes from the People's Republic of China: Identification of
Reviewable Transactions for Certain Companies Under Review,'' dated
concurrently with this notice. See also Small Diameter Graphite
Electrodes from the People's Republic of China: Final Results of the
First Administrative Review of the Antidumping Duty Order and Final
Rescission of the Administrative Review, in Part, 76 FR 56397
(September 13, 2011), and accompanying Issues and Decision
Memorandum at Comment 2 (finding that, because respondents properly
reported their sales as export price sales, the knowledge test did
not apply).
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The petitioners assert that the Department cannot consider Muzi
Carbon's separate-rate request in this review. Specifically, the
petitioners argue that because Muzi Carbon submitted a separate-rate
certification instead of a separate-rate application, Muzi Carbon's
submission is untimely. The petitioners assert that the Department's
separate-rate instructions require the submission of a separate-rate
application if an exporter underwent changes in corporate structure,
ownership, or official company name. The petitioners also contend that
Muzi Carbon had a change in ownership during the POR and, thus, was
required to submit a separate-rate application. Information on the
record indicates that Muzi Carbon's separate rate certification
illuminated that the proprietor of Muzi Carbon acquired the remaining
three percent of the value of outstanding shares that he did not
already own from his nephew, thus becoming the sole shareholder of Muzi
Carbon.\25\ While this event established a change in the make-up of
Muzi Carbon's shareholder structure, we find that it does not
constitute a change in the company's ownership because the ownership
stayed within the family and the control of the company remained with
its proprietor. We therefore preliminarily find Muzi Carbon's filing of
a separate-rate certification to be sufficient.
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\25\ See Muzi Carbon's submission, dated May 31, 2011, at 5.
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Rate for Non-Selected Companies
In accordance with section 777A(c)(2)(B) of the Act, the Department
employed a limited examination methodology, as it did not have the
resources to examine all companies for which a review request was made.
We selected Fushun Jinly and Jilin Carbon as mandatory respondents in
this review. See Respondent Selection Memo. As discussed above, the
Fangda Group, Muzi Carbon, and Shida Carbon are exporters of graphite
electrodes from the PRC that demonstrated their eligibility for a
separate rate, but which were not selected for individual examination
in this review. The statute and the Department's regulations do not
directly address the establishment of a rate to be applied to
individual companies not selected for individual examination where the
Department limited its examination in an administrative review pursuant
to section 777A(c)(2) of the Act. The Department's practice in cases
involving limited selection based on exporters accounting for the
largest volumes of trade has been to look to section 735(c)(5) of the
Act for guidance, which provides instructions for calculating the all-
others rate in an investigation. 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. Section 735(c)(5)(B) of the Act also provides that, where
all margins are zero rates, de minimis rates, or rates based entirely
on facts available, we may use ``any reasonable method'' for assigning
the rate to non-selected respondents. In this instance, we have
calculated a rate above de minimus for Fushun Jinly and determined a
rate for Jilin Carbon based entirely on facts available.
Consistent with the Department's practice, as the separate rate, we
have established a margin for the Fangda Group, Muzi Carbon, and Shida
Carbon based on the rate we calculated for the mandatory respondent,
Fushun Jinly, excluding, where appropriate, any rates that were zero,
de minimis, or based entirely on adverse facts available (AFA).\26\
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\26\ See, e.g., Preliminary Determination of Sales at Less Than
Fair Value and Partial Affirmative Determination of Critical
Circumstances: Certain Polyester Staple Fiber from the People's
Republic of China, 71 FR 77373, 77377 (December 26, 2006), unchanged
in Final Determination of Sales at Less Than Fair Value and Partial
Affirmative Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People's Republic of China, 72 FR
19690 (April 19, 2007).
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PRC-Wide Entity
We have preliminarily determined that 16 companies did not
demonstrate their eligibility for a separate rate and are properly
considered part of the PRC-wide entity.\27\ As explained above in the
``Separate Rates'' section, all companies within the PRC are considered
to be subject to government control unless they are able to demonstrate
an absence of government control with respect to their export
activities. Such companies are thus assigned a single antidumping duty
rate distinct from the separate rate(s) determined for companies that
are found to be independent of government control with respect to their
export activities. We consider the influence that the government has
been found to have over the economy to warrant determining a rate for
the entity that is distinct from the rates found for companies that
have provided sufficient evidence to establish that they operate freely
with respect to their export activities.\28\
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\27\ These companies are Dechang Shida Carbon Co., Ltd., Fushun
Carbon Plant, Fushun Jinli Petrochemical Carbon Co., Ltd., Guanghan
Shida Carbon Co., Ltd., Jilin Carbon Graphite Material Co., Ltd.,
Lanzhou Hailong New Material Co., Liaoning Fangda Group Industrial
Co., Ltd., Shida Carbon Group, Sichuan Dechang Shida Co., Ltd.,
Sichuan Shida Trading Co., Ltd., Sinosteel Anhui Co., Ltd.,
Sinosteel Corp., Sinosteel Jilin Carbon Co., Ltd., Sinosteel Jilin
Carbon Imp. & Exp. Co., Ltd., Sinosteel Sichuan Co., Ltd., and
Xinghe County Muzi Carbon Plant.
\28\ 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, 53082 (September 8, 2006).
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Use of Facts Available and AFA
Section 776(a) of the Act provides that the Department shall apply
``facts otherwise available'' if (1) necessary information is not on
the record or (2) an interested party or any other person (A) withholds
information that has been requested, (B) fails to provide
[[Page 13289]]
information within the deadlines established, or in the form and manner
requested by the Department, subject to subsections (c)(1) and (e) of
section 782 of the Act, (C) significantly impedes a proceeding, or (D)
provides information that cannot be verified as provided by section
782(i) of the Act.
Furthermore, section 776(b) of the Act provides that the Department
may use an adverse inference in applying the facts otherwise available
when a party has failed to cooperate by not acting to the best of its
ability to comply with a request for information. Such an adverse
inference may include reliance on information derived from the
petition, the final determination, a previous administrative review, or
other information placed on the record.
Application of Total AFA to the PRC-Wide Entity
Jilin Carbon did not respond to the Department's antidumping
questionnaire. Accordingly, we preliminarily determine that this
company withheld information requested by the Department in accordance
with sections 776(a)(2)(A) and (B) of the Act. Furthermore, this
company's refusal to participate in the review significantly impeded
the proceeding in accordance with section 776(a)(2)(C) of the Act.
Specifically, had this company participated in the review, the
Department would have been able to calculate an appropriate dumping
margin.
Further, because there is no information on the record
demonstrating this company's entitlement to a separate rate in
accordance with section 776(a) of the Act, the Department has
preliminarily treated Jilin Carbon as part of the PRC-wide entity.
Because Jilin Carbon did not respond to the Department's
antidumping questionnaire, and is part of the PRC-wide entity, the PRC-
wide entity's refusal to provide any information constitutes
justifiable grounds under which the Department can conclude that less
than full cooperation has been shown.\29\ Hence, pursuant to section
776(b) of the Act, the Department has determined that, when selecting
from among the facts otherwise available, an adverse inference is
warranted with respect to the PRC-wide entity.
---------------------------------------------------------------------------
\29\ See Notice of Final Determination of Sales at Less than
Fair Value: Static Random Access Memory Semiconductors From Taiwan,
63 FR 8909, 8911 (February 23, 1998); see also Brake Rotors From the
People's Republic of China: Final Results and Partial Rescission of
the Seventh Administrative Review; Final Results of the Eleventh New
Shipper Review, 70 FR 69937, 69939 (November 18, 2005), and Uruguay
Round Agreements Act, Statement of Administrative Action, H.R. Doc.
No. 103-316, vol. 1, at 870 (1994) (SAA).
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Selection of AFA Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from: (1) The petition; (2) a final determination
in the investigation; (3) any previous review or determination; or (4)
any information placed on the record. In reviews, the Department
normally selects as AFA the highest rate determined for any respondent
in any segment of the proceeding.\30\ The Court of International Trade
(CIT) and the Court of Appeals for the Federal Circuit (Federal
Circuit) have consistently upheld the Department's practice.\31\ The
Department's practice, when selecting an AFA rate from among the
possible sources of information, has been to ensure that the margin is
sufficiently adverse ``as to effectuate the statutory purposes of the
adverse facts available rule to induce respondents to provide the
Department with complete and accurate information in a timely manner.''
\32\ The Department's practice also ensures ``that the party does not
obtain a more favorable result by failing to cooperate than if it had
cooperated fully.'' \33\ In choosing the appropriate balance between
providing respondents with an incentive to respond accurately and
imposing a rate that is reasonably related to the respondent's prior
commercial activity, selecting the highest prior margin reflects a
``common sense inference that the highest prior margin is the most
probative evidence of current margins because, if it were not so, the
importer, knowing the rule, would have produced current information
showing the margin to be less.'' \34\ Consistent with the statute,
court precedent, and its normal practice, the Department has assigned
159.64 percent to the PRC-wide entity, including Jilin Carbon, as AFA,
which is the PRC-wide rate determined in the investigation and the rate
currently applicable to the PRC-wide entity.\35\
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\30\ See, e.g., Freshwater Crawfish Tail Meat from the People's
Republic of China; Notice of Final Results of Antidumping Duty
Administrative Review, 68 FR 19504, 19507 (April 21, 2003).
\31\ See KYD, Inc. v. United States, 607 F.3d 760, 766-67 (Fed.
Cir. 2010) (KYD); Rhone Poulenc, Inc. v. United States, 899 F.2d
1185, 1190 (Fed. Cir. 1990) (Rhone Poulenc); NSK Ltd. v. United
States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55
percent total AFA rate, the highest available dumping margin from a
different respondent in a less-than-fair-value investigation);
Kompass Food Trading Int'l v. United States, 24 CIT 678, 684 (2000)
(upholding a 51.16 percent total AFA rate, the highest available
dumping margin from a different, fully cooperative respondent); and
Shanghai Taoen International Trading Co., Ltd. v. United States, 360
F. Supp. 2d 1339, 1348 (CIT 2005) (upholding a 223.01 percent total
AFA rate, the highest available dumping margin from a different
respondent in a previous administrative review).
\32\ SAA at 870.
\33\ Id.; see also Notice of Final Determination of Sales at
Less than Fair Value: Certain Frozen and Canned Warmwater Shrimp
From Brazil, 69 FR 76910, 76912 (December 23, 2004), and D&L Supply
Co. v. United States, 113 F.3d 1220, 1223 (Fed. Cir. 1997).
\34\ KYD, 607 F.3d at 766 (citing Rhone Poulenc, 899 F.2d at
1190) (emphasis in original).
\35\ See Final Determination of Sales at Less Than Fair Value
and Affirmative Determination of Critical Circumstances: Small
Diameter Graphite Electrodes from the People's Republic of China, 74
FR 2049, 2054-55 (January 14, 2009) (Graphite Electrodes Final
Determination).
---------------------------------------------------------------------------
The Department preliminarily determines that this information is
the most appropriate from the available sources to effectuate the
purposes of AFA. The Department's reliance on the PRC-wide rate from
the original investigation to determine an AFA rate is subject to the
requirement to corroborate secondary information.\36\
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\36\ See section 776(c) of the Act and the ``Corroboration of
Secondary Information'' section.
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Corroboration of Secondary Information
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation or review, it shall to the extent
practicable, corroborate that information from independent sources that
are reasonably at the Department's disposal. Secondary information is
described in the SAA as ``information derived from the petition that
gave rise to the investigation or review, the final determination
concerning the subject merchandise, or any previous review under
section 751 concerning the subject merchandise.'' \37\ The SAA explains
that ``corroborate'' means to determine that the information used has
probative value.\38\ The Department has determined that to have
probative value, information must be reliable and relevant.\39\ The SAA
also explains that
[[Page 13290]]
independent sources used to corroborate such evidence may include, for
example, published price lists, official import statistics and customs
data, and information obtained from interested parties during the
particular investigation.\40\
---------------------------------------------------------------------------
\37\ SAA at 870.
\38\ Id.
\39\ See Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof, From Japan;
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, From Japan, and Tapered Roller
Bearings, Four Inches or Less in Outside Diameter, and Components
Thereof, From Japan; Final Results of Antidumping Duty
Administrative Reviews and Termination in Part, 62 FR 11825 (March
13, 1997).
\40\ See SAA at 870; see also Notice of Final Determination of
Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181,
12183 (March 11, 2005).
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As stated above, we are applying as AFA to the PRC-wide entity the
highest rate from any segment of this administrative proceeding, which
is the PRC-wide rate of 159.64 percent. The 159.64 percent is the
highest rate on the record of any segment of the antidumping duty
order. In the investigation, the Department relied upon our pre-
initiation analysis of the adequacy and accuracy of the information in
the petition.\41\ During our pre-initiation analysis, we examined the
information used as the basis of export price and NV in the petition,
and the calculations used to derive the alleged margins. Also, during
our pre-initiation analysis, we examined information from various
independent sources provided either in the petition or, based on our
requests, in supplements to the petition, which corroborated key
elements of the export price and NV calculations.\42\ Since the
investigation, the Department has found no other corroborating
information available in this case, and received no comments from
interested parties as to the relevance or reliability of this secondary
information. Based upon the above, for these preliminary results, the
Department finds that the rates derived from the petition are
corroborated to the extent practicable for purposes of the AFA rate
assigned to the PRC-wide entity, including Jilin Carbon.
---------------------------------------------------------------------------
\41\ See Graphite Electrodes Final Determination, 74 FR at 2054,
and Small Diameter Graphite Electrodes from the People's Republic of
China: Initiation of Antidumping Duty Investigation, 73 FR 8287
(February 13, 2008) (Graphite Electrodes Investigation Initiation);
see also Notice of Final Determination of Sales at Less Than Fair
Value and Affirmative Final Determination of Critical Circumstances:
Circular Welded Carbon Quality Steel Pipe from the People's Republic
of China, 73 FR 31970, 31972 (June 5, 2008) (where the Department
relied upon pre-initiation analysis to corroborate the highest
margin alleged in the petition).
\42\ See Graphite Electrodes Investigation Initiation, 73 FR at
8288-8290.
---------------------------------------------------------------------------
Because these are the preliminary results of review, the Department
will consider all margins on the record at the time of the final
results of review for the purpose of determining the most appropriate
final margin for the PRC-wide entity.\43\
---------------------------------------------------------------------------
\43\ See Notice of Preliminary Determination of Sales at Less
Than Fair Value: Solid Fertilizer Grade Ammonium Nitrate From the
Russian Federation, 65 FR 1139, 1141 (January 7, 2000), unchanged in
Notice of Final Determination of Sales at Less Than Fair Value;
Solid Fertilizer Grade Ammonium Nitrate From the Russian Federation,
65 FR 42669 (July 11, 2000).
---------------------------------------------------------------------------
Surrogate Country
When the Department conducts an antidumping duty administrative
review of imports from an NME country, section 773(c)(1) of the Act
directs the Department to base NV, in most cases, on the NME producer's
factors of production (FOP), valued in a surrogate ME country or
countries considered appropriate by the Department. In accordance with
section 773(c)(4) of the Act, the Department will value FOPs using ``to
the extent possible, the prices or costs of the FOPs in one or more ME
countries that are: (A) At a level of economic development comparable
to that of the NME country, and (B) significant producers of comparable
merchandise.'' \44\ Once the Department has identified the countries
that are economically comparable to the PRC, it identifies those
countries which are significant producers of comparable merchandise.
From the countries which are found to be both economically comparable
to the PRC and significant producers of comparable or identical
merchandise, the Department will then select a primary surrogate
country based upon whether the data for valuing FOPs are both available
and reliable.
---------------------------------------------------------------------------
\44\ See the Department's Policy Bulletin No. 04.1, regarding,
``Non-Market Economy Surrogate Country Selection Process,'' (March
1, 2004), available on the Department's Web site at http://ia.ita.doc.gov/policy/bull04-1.html.
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In the instant review, the Department has identified Colombia,
Indonesia, the Philippines, South Africa, Thailand, and Ukraine as
countries that are at a level of economic development comparable to the
PRC.\45\ Therefore, we consider all six of these countries as having
satisfied the first prong of the surrogate-country selection criteria
of section 773(c)(4) of the Act.
---------------------------------------------------------------------------
\45\ See the Department's memorandum entitled ``Request for a
List of Surrogate Countries for an Administrative Review of the
Antidumping Duty Order on Small Diameter Graphite Electrodes from
the People's Republic of China,'' dated August 29, 2011 (Surrogate
Country Memo).
---------------------------------------------------------------------------
With respect to the Department's selection of a surrogate country,
the petitioners commented that Ukraine is the appropriate surrogate
country from which to derive surrogate factor values for the PRC
because Ukraine is most economically comparable to the PRC and is also
a significant producer of graphite electrodes.\46\ The petitioners
suggested we use the 2010 publicly available financial statements for
JSC Ukrainsky Grafit, a major Ukrainian producer of graphite
electrodes, in order to derive surrogate financial ratios and placed
such financial statements on the record. The petitioners also comment
that Ukraine is a major importer of the inputs consumed in the
production of graphite electrodes and placed the relevant POR Ukrainian
import statistics on the record.
---------------------------------------------------------------------------
\46\ See the petitioners' submission, dated September 22, 2011.
---------------------------------------------------------------------------
Fushun Jinly commented that, consistent with the Department's
determination in the original investigation and in the 2008-2010
administrative review, India should be selected as the surrogate
country.\47\ Fushun Jinly commented that although India is not one of
the countries identified by the Department as economically comparable
to the PRC, the list identified by the Department is neither exclusive
nor exhaustive. Fushun Jinly commented that World Bank's 2011 World
Development Report (the source of 2009 Gross National Income (GNI) data
used by the Department) classifies both the PRC and India as ``lower
middle income countries,'' and while the PRC is at the higher end of
the ``lower middle income'' scale and India is at the lower end of that
scale, World Bank classifies both countries within the same economic
grouping. Further, Fushun Jinly asserts that the economic growth trends
shared by the PRC and India also support a finding that India is
economically comparable to the PRC.
---------------------------------------------------------------------------
\47\ See Fushun Jinly's submission, dated September 22, 2011.
---------------------------------------------------------------------------
In Steel Wheels \48\ we stated that, unless we find that all of the
countries determined to be equally economically comparable are not
significant producers of comparable merchandise, do not provide a
reliable source of publicly available surrogate data, or are unsuitable
for use for other reasons, we will rely on data from one of these
countries. Because we found that one of the six countries listed in the
Surrogate Country Memo meets the selection criteria, as explained
below, we are not considering India as the primary surrogate country.
---------------------------------------------------------------------------
\48\ See Certain Steel Wheels From the People's Republic of
China: Notice of Preliminary Determination of Sales at Less Than
Fair Value, Partial Affirmative Preliminary Determination of
Critical Circumstances, and Postponement of Final Determination, 76
FR 67703 (November 2, 2011) (Steel Wheels).
---------------------------------------------------------------------------
Because we were unable to find the actual production data to
evaluate the significance of production of subject merchandise with
respect to potential surrogate countries, we relied on export data as a
proxy for overall production data in this review. From the countries
[[Page 13291]]
that we identified to be economically comparable to the PRC, only
Ukraine and South Africa exported significant quantities of graphite
electrodes during the POR based on Global Trade Atlas (GTA) data for
exports under HTS 8545.11.00.\49\ As such, we find that Ukraine and
South Africa meet the ``significant producer'' requirement of Section
773(c)(4) of the Act.
---------------------------------------------------------------------------
\49\ See the Department's memorandum entitled ``Administrative
Review of the Antidumping Duty Order on Small Diameter Graphite
Electrodes from the People's Republic of China: Selection of
Surrogate Values,'' dated concurrently with this notice (Factor
Valuation Memorandum), at Exhibit 1.
---------------------------------------------------------------------------
Like the PRC, Ukraine has a broad and diverse production base, and
we have reliable data from Ukraine that we can use to value the FOPs
and derive surrogate financial ratios.\50\ Unlike the data for Ukraine,
we do not have the financial statements from the producers of graphite
electrodes in South Africa or any data concerning certain freight
expenses and electricity. Therefore, we have determined that it is
appropriate to use Ukraine as a surrogate country for the purposes of
this administrative review, pursuant to section 773(c)(4) of the Act,
based on the following: (1) It is at a comparable level of economic
development to the PRC; (2) it is a significant producer of comparable
merchandise, and (3) we have reliable data from Ukraine that we can use
to value the FOPs. Accordingly, we have calculated NV using Ukrainian
prices to value Fushun Jinly's FOPs.\51\
---------------------------------------------------------------------------
\50\ See Factor Valuation Memorandum.
\51\ See Factor Valuation Memorandum; see also ``Factor
Valuations'' section, below.
---------------------------------------------------------------------------
Fair Value Comparisons
To determine whether Fushun Jinly's sales of subject merchandise
were made at less than NV, we compared the NV to individual export
price transactions in accordance with section 777A(d)(2) of the Act.
See ``Export Price'' and ``Normal Value'' sections of this notice,
below.
Export Price
In accordance with section 772(a) of the Act, export price is ``the
price at which 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. For Fushun Jinly, we used export price methodology, in
accordance with section 772(a) of the Act, for sales in which the
subject merchandise was first sold prior to importation by the exporter
outside the United States directly to an unaffiliated purchaser in the
United States and for sales in which constructed export price was not
otherwise indicated.
We based export price on the price to unaffiliated purchasers in
the United States. In accordance with section 772(c)(2)(A) of the Act,
where appropriate, we made deductions from the starting price (gross
unit price) for foreign inland freight and foreign brokerage and
handling. We valued brokerage and handling using a price list of export
procedures necessary to export a standardized cargo of goods from
Ukraine. 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 from Ukraine as reported in World Bank Group's Doing
Business 2011--Ukraine; Trading Across Borders.\52\
---------------------------------------------------------------------------
\52\ See Factor Valuation Memorandum.
---------------------------------------------------------------------------
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine NV using an FOP methodology if: (1) The merchandise is
exported from an NME country; and (2) 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. 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. Under section 773(c)(3) of the
Act, 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. We used
FOPs reported by Fushun Jinly for direct materials, energy, labor,
packing and by-products.
Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on FOPs reported by Fushun Jinly for the POR. In accordance with
19 CFR 351.408(c)(1), the Department will normally use publicly
available information to find an appropriate surrogate value (SV) to
value FOPs, but when a producer sources an input from a ME and pays for
it in ME currency, the Department normally will value the factor using
the actual price paid for the input if the quantities were meaningful
and where the prices have not been distorted by dumping or
subsidies.\53\ To calculate NV, we multiplied the reported per-unit
factor-consumption rates by publicly available SVs (except as discussed
below). In selecting SVs, we considered the quality, specificity, and
contemporaneity of the data.\54\ As appropriate, we adjusted input
prices by including freight costs to make them delivered prices.
Specifically, we added to import SVs surrogate freight cost using the
shorter of the reported distance from the domestic supplier to the
factory or the distance from the nearest seaport to the factory, where
appropriate. This adjustment is in accordance with the Federal
Circuit's decision in Sigma Corp. v. United States, 117 F.3d 1401,
1407-08 (Fed. Cir. 1997).
---------------------------------------------------------------------------
\53\ 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).
\54\ See, e.g., Fresh Garlic From the People's Republic of
China: Final Results of Antidumping Duty New Shipper Review, 67 FR
72139 (December 4, 2002), and accompanying Issues and Decision
Memorandum at Comment 6, and Final Results of First New Shipper
Review and First Antidumping Duty Administrative Review: Certain
Preserved Mushrooms From the People's Republic of China, 66 FR 31204
(June 11, 2001), and accompanying Issues and Decision Memorandum at
Comment 5.
---------------------------------------------------------------------------
On September 8, 2011, we invited all interested parties to submit
publicly available information to value FOPs for our consideration in
the preliminary results of this review. On September 22, 2011, and
October 6, 2011, the petitioners and Fushun Jinly submitted,
respectively, publicly available information to value FOPs for the
preliminary results. See Factor Valuation Memorandum for a detailed
description of all SVs used in this review.
For these preliminary results, in accordance with our practice,
except where indicated below, we used data from the Ukrainian import
statistics in the GTA and other publicly available Ukrainian sources in
order to calculate SVs for Fushun Jinly's reported FOPs (i.e., direct
materials, energy, and packing materials) and certain movement
expenses. In selecting the best available information for valuing FOPs
in accordance with section 773(c)(1) of the Act, our 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.\55\
[[Page 13292]]
The record shows that data in the Ukrainian import statistics, as well
as those from the other Ukrainian sources, are contemporaneous with the
period of investigation, product-specific, and tax-exclusive.\56\ In
those instances where we could not obtain publicly available
information contemporaneous to the POR with which to value factors, we
adjusted the SVs using, where appropriate, the Ukrainian Wholesale
Price Index (WPI) or, where appropriate, Consumer Price Index (CPI), as
published in the International Monetary Fund's International Financial
Statistics.\57\
---------------------------------------------------------------------------
\55\ 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).
\56\ See Factor Valuation Memorandum.
\57\ See, e.g., Certain Kitchen Appliance Shelving and Racks
From the People's Republic of China: Preliminary Determination of
Sales at Less Than Fair Value and Postponement of Final
Determination, 74 FR 9591, 9600 (March 5, 2009) (Kitchen Racks
Prelim), unchanged in Certain Kitchen Appliance Shelving and Racks
From the People's Republic of China: Final Determination of Sales at
Less than Fair Value, 74 FR 36656 (July 24, 2009) (Kitchen Racks
Final).
---------------------------------------------------------------------------
As explained in the legislative history of the Omnibus Trade and
Competitiveness Act of 1988, the Department continues to apply its
long-standing practice of disregarding SVs if it has a reason to
believe or suspect the source data may be subsidized.\58\ In this
regard, the Department has previously found that it is appropriate to
disregard such prices from India, Indonesia, South Korea and Thailand
because we have determined that these countries maintain broadly
available, non-industry specific export subsidies.\59\ Based on the
existence of these subsidy programs that were generally available to
all exporters and producers in these countries at the time of the POR,
we find that it is reasonable to infer that all exporters from India,
Indonesia, South Korea and Thailand may have benefitted from these
subsidies. Additionally, we disregarded prices from NME countries.\60\
Finally, imports that were labeled as originating from an
``unspecified'' country were excluded from the import average value,
because we could not be certain that they were not from either an NME
country or a country with generally available export subsidies.\61\
---------------------------------------------------------------------------
\58\ Omnibus Trade and Competitiveness Act of 1988, Conf. Report
to Accompany H.R. 3, H.R. Rep. No. 576, 100th Cong., 2nd Sess.
(1988) at 590, reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24.
\59\ See, e.g., Carbazole Violet Pigment 23 from India: Final
Results of the Expedited Five-year (Sunset) Review of the
Countervailing Duty Order, 75 FR 13257 (March 19, 2010), and
accompanying Issues and Decision Memorandum at 4-5; Certain Cut-to-
Length Carbon Quality Steel Plate from Indonesia: Final Results of
Expedited Sunset Review, 70 FR 45692 (August 8, 2005), and
accompanying Issues and Decision Memorandum at 4; Corrosion-
Resistant Carbon Steel Flat Products from the Republic of Korea:
Final Results of Countervailing Duty Administrative Review, 74 FR
2512 (January 15, 2009), and accompanying Issues and Decision
Memorandum at 17, 19-20; Final Affirmative Countervailing Duty
Determination: Certain Hot-Rolled Carbon Steel Flat Products From
Thailand, 66 FR 50410 (October 3, 2001), and accompanying Issues and
Decision Memorandum at 23.
\60\ See, e.g., Kitchen Racks Prelim, 74 FR at 9600, unchanged
in Kitchen Racks Final.
\61\ See id.
---------------------------------------------------------------------------
Fushun Jinly reported that certain of its raw material inputs were
sourced from an ME country and paid for in ME currencies. When a
respondent sources inputs from an ME supplier in meaningful quantities,
we use the actual price paid by respondent for those inputs, except
when prices may have been distorted by dumping or subsidies.\62\ Where
we found ME purchases to be of significant quantities (i.e., 33 percent
or more), in accordance with our statement of policy as outlined in
Antidumping Methodologies: Market Economy Inputs,\63\ we used the
actual purchases of these inputs to value the inputs.
---------------------------------------------------------------------------
\62\ See Antidumping Duties; Countervailing Duties; Final Rule,
62 FR 27296, 27366 (May 19, 1997).
\63\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717 (October 19, 2006) (Antidumping
Methodologies: Market Economy Inputs).
---------------------------------------------------------------------------
Accordingly, we valued certain of Fushun Jinly's inputs using the
ME prices paid for in ME currencies for the inputs where the total
volume of the input purchased from all ME sources during the POR
exceeds or is equal to 33 percent of the total volume of the input
purchased from all sources during the period. Where appropriate, we
added freight to the ME prices of inputs.\64\
---------------------------------------------------------------------------
\64\ For a detailed description of the actual values used for
the ME inputs reported, see the Department's memorandum entitled,
``Administrative Review of the Antidumping Duty Order on Small
Diameter Graphite Electrodes from the People's Republic of China:
Preliminary Results Analysis Memorandum for Fushun Jinly
Petrochemical Carbon Co., Ltd.,'' dated concurrently with this
notice.
---------------------------------------------------------------------------
We valued truck freight expenses using a per-unit average rate we
calculated from the data we obtained from budmo.org, as suggested by
the petitioners. This Web site is an online provider of container
shipping, logistics, and freight forwarding services. The Web site
provides freight rates for transporting goods in containers by road
from major ports in Ukraine to many large Ukrainian cities.\65\ Because
data reported in this source were current as of March, 2011, and, thus,
not contemporaneous with the POR, we adjusted the value for inland
truck freight using the Ukrainian WPI deflator.
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\65\ See Factor Valuation Memorandum.
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We valued electricity using the electricity tariff data for
corporate consumers, as published by the National Electricity
Regulatory Commission of Ukraine, an administrative body of the
government of Ukraine, at www.nerc.gov.ua. These electricity rates were
furnished by major power distribution companies in Ukraine and
represent actual, country-wide, publicly-available information on tax-
exclusive basis.\66\ We obtained electricity tariffs for each month of
the POR and computed a single POR-average rate.\67\
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\66\ See id.
\67\ See, e.g., Wire Decking from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value, 75 FR
32905 (June 10, 2010), and accompanying Issues and Decision
Memorandum at Comment 3.
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To calculate the labor input, we based our calculation on the
methodology which the Department enunciated on June 21, 2011 in
Antidumping Methodologies in Proceedings Involving Non-Market
Economies: Valuing the Factor of Production: Labor, 76 FR 36092 (June
21, 2011) (Labor Methodologies). Prior to 2010, the Department used
regression-based wages that captured the worldwide relationship between
per capita GNI and hourly manufacturing wages, pursuant to 19 CFR
351.408(c)(3). On May 3, 2010, the Federal Circuit, in Dorbest Ltd. v.
United States, 604 F.3d 1363, 1372 (Fed Cir. 2010) (Dorbest),
invalidated part of that regulation. As a consequence of the Federal
Circuit's ruling in Dorbest, the Department no longer relies on the
regression-based methodology described in 19 CFR 351.408(c)(3).
In Labor Methodologies, the Department explained that the best
methodology to value the labor input is to use industry-specific labor
rates from the primary surrogate country.\68\ Additionally, the
Department determined that the best data source for industry-specific
labor rates is Chapter 6A: Labor Cost in Manufacturing, from the
International Labor Organization (ILO) Yearbook of Labor
Statistics.\69\
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\68\ See Labor Methodologies, 76 FR at 36093.
\69\ See id. 76 FR at 36093-94.
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We could not identify Chapter 6A labor data for Ukraine pertaining
to the industry specific to subject
[[Page 13293]]
merchandise. In Labor Methodologies, the Department explained that,
``if there is no industry-specific data available for the surrogate
country within the primary data source, i.e., ILO Chapter 6A data, the
Department will then look to national data for the surrogate country
for calculating the wage rate.'' \70\ The latest year for which ILO
Chapter 6A reports national data for Ukraine is 2006. We selected this
monthly labor value, converted it to an hourly basis, and inflated it
to 2010 (the majority of the POR) using the Ukrainian CPI.
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\70\ Id. 76 FR at 36094, n.11.
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We find that the ILO Chapter 6A data constitute the best available
information on the record with which to value labor costs in this
review on the basis that it accounts for all direct and indirect labor
costs, such as, for example, wages, benefits, housing, training, etc.,
and, thus, more accurately reflective of the actual labor costs in
Ukraine.\71\ For more details on this calculation, see the Factor
Valuation Memorandum.
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\71\ See id. 76 FR at 36093-94.
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Because the financial statements used to calculate the surrogate
financial ratios do not include itemized detail of labor costs, we did
not make adjustments to certain labor costs in the surrogate financial
ratios.\72\
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\72\ See id. 76 FR at 36094.
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To value factory overhead, selling, general and administrative
expenses and profit, we used the ratios we derived using the 2010
publicly available financial statements for JSC Ukrainsky Grafit, a
major Ukrainian producer of graphite electrodes.\73\
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\73\ See Factor Valuation Memorandum.
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Fushun Jinly reported that it recovered certain by-products in its
production of subject merchandise and successfully demonstrated that
all of them have commercial value. Therefore, we have granted a by-
product offset for the quantities of Fushun Jinly's reported by-
products. We valued the by-product using Ukrainian GTA data.\74\
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\74\ See id.
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Currency Conversion
Where appropriate, we made currency conversions into U.S. dollars,
in accordance with section 773A(a) of the Act, based on the exchange
rates in effect on the dates of the U.S. sales as certified by the
Federal Reserve Bank.
Preliminary Results of Review
The Department has determined that the following preliminary
dumping margins exist for the period February 1, 2010, through January
31, 2011:
------------------------------------------------------------------------
Margin
Company (percent)
------------------------------------------------------------------------
Fushun Jinly Petrochemical Carbon Co., Ltd.................. 36.87
Xinghe County Muzi Carbon Co., Ltd.......................... 36.87
Sichuan Guanghan Shida Carbon Co., Ltd...................... 36.87
Beijing Fangda Carbon Tech Co., Ltd......................... 36.87
Chengdu Rongguang Carbon Co., Ltd........................... 36.87
Fangda Carbon New Material Co., Ltd......................... 36.87
Fushun Carbon Co., Ltd...................................... 36.87
Hefei Carbon Co., Ltd....................................... 36.87
PRC-wide entity [dagger].................................... 159.64
------------------------------------------------------------------------
* Part of PRC-wide entity.
[dagger] The PRC-wide entity includes the following companies: Dechang
Shida Carbon Co., Ltd., Fushun Carbon Plant, Fushun Jinli
Petrochemical Carbon Co., Ltd., Guanghan Shida Carbon Co., Ltd., Jilin
Carbon Graphite Material Co., Ltd., Jilin Carbon Import and Export
Company, Lanzhou Hailong New Material Co., Liaoning Fangda Group
Industrial Co., Ltd., Shida Carbon Group, Sichuan Dechang Shida Co.,
Ltd., Sichuan Shida Trading Co., Ltd., Sinosteel Anhui Co., Ltd.,
Sinosteel Corp., Sinosteel Jilin Carbon Co., Ltd., Sinosteel Jilin
Carbon Imp. & Exp. Co., Ltd., Sinosteel Sichuan Co., Ltd., and Xinghe
County Muzi Carbon Plant.
Disclosure and Public Comment
The Department intends to disclose to parties to this proceeding
the calculations performed in reaching the preliminary results within
five days of the date of publication of these preliminary results.\75\
Interested parties may submit written comments (case briefs) within 30
days of publication of the preliminary results and rebuttal comments
(rebuttal briefs) within five days after the time limit for filing case
briefs.\76\ Pursuant to 19 CFR 351.309(d)(2), rebuttal briefs must be
limited to issues raised in the case briefs. Parties who submit
arguments are requested to submit with the argument: (1) A statement of
the issue; (2) a brief summary of the argument; and (3) a table of
authorities.
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\75\ See 19 CFR 351.224(b).
\76\ See 19 CFR 351.309(c)(1)(ii) and 351.309(d)(1).
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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, U.S. Department of
Commerce, filed electronically using Import Administration's
Antidumping and Countervailing Duty Centralized Electronic Service
System (IA ACCESS). An electronically filed document must be received
successfully in its entirety by the Department's electronic records
system, IA ACCESS, by 5 p.m. Eastern Standard Time within 30 days after
the date of publication of this notice.\77\ Requests should contain the
party's name, address, and telephone number, the number of
participants, and a list of the issues to be discussed. If a request
for a hearing is made, we will inform parties of the scheduled date for
the hearing which will be held at the U.S. Department of Commerce, 14th
Street and Constitution Avenue NW., Washington, DC 20230, at a time and
location to be determined.\78\ Parties should confirm by telephone the
date, time, and location of the hearing.
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\77\ See 19 CFR 351.310(c).
\78\ See 19 CFR 351.310.
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Unless the deadline is extended pursuant to section
751(a)(2)(B)(iv) of the Act, the Department will issue the final
results of this administrative review, including the results of our
analysis of the issues raised by the parties in their comments, within
120 days after issuance of these preliminary results.
Deadline for Submission of Publicly Available Surrogate Value
Information
In accordance with 19 CFR 351.301(c)(3), the deadline for
submission of publicly available information to value FOPs under 19 CFR
351.408(c) is 20 days after the date of publication of these
preliminary results. In accordance with 19 CFR 351.301(c)(1), if an
interested party submits factual information less than ten days before,
on, or after (if the Department has extended the deadline), the
applicable deadline for submission of such factual information, an
interested party may submit factual information to rebut, clarify, or
correct the factual information no later than ten days after such
factual information is served on the interested party. However, the
Department 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 in
rebuttal the submission of additional, previously absent-from-the-
record alternative SV information pursuant to 19 CFR 351.301(c)(1).\79\
Furthermore, the Department generally will not accept business
proprietary information in either the SV submissions or the rebuttals
thereto, as the regulation regarding the submission of SVs allows only
for the submission of publicly available information.
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\79\ See, e.g., Glycine from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review and Final
Rescission, in Part, 72 FR 58809 (October 17, 2007), and
accompanying Issues and Decision Memorandum at Comment 2.
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[[Page 13294]]
Assessment Rates
Upon issuing the final results of the review, the Department shall
determine, and CBP shall assess, antidumping duties on all appropriate
entries. The Department intends to issue assessment instructions to CBP
15 days after the date of publication of the final results of review.
Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-
specific ad valorem duty assessment rates based on the ratio of the
total amount of the dumping margins calculated for the examined sales
to the total entered value of those same sales. We will instruct CBP to
assess antidumping duties on all appropriate entries covered by this
review if any importer-specific assessment rate calculated in the final
results of this review is above de minimis. However, the final results
of this review shall be the basis for the assessment of antidumping
duties on entries of merchandise covered by the final results of this
review and for future deposits of estimated duties, where applicable.
Cash Deposit Requirements
The following cash deposit requirements, when imposed, will apply
to all shipments of subject merchandise entered, or withdrawn from
warehouse, for consumption on or after the publication of the final
results of this administrative review, as provided by section
751(a)(2)(C) of the Act: (1) The cash deposit rate for Fushun Jinly,
Muzi Carbon, Shida Carbon, and the companies comprising the Fangda
Group will be the rate established in the final results of this
administrative review; (2) for any previously reviewed or investigated
PRC or non-PRC exporter, not covered in this administrative review,
with a separate rate, the cash deposit rate will be the company-
specific rate established in the most recent segment of this
proceeding; (3) for all other PRC exporters, the cash deposit rate will
continue to be the PRC-wide rate (i.e., 159.64 percent); and (4) the
cash-deposit rate for any non-PRC exporter of subject merchandise from
the PRC will be the rate applicable to the PRC exporter that supplied
that exporter. 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 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: February 28, 2012.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. 2012-5448 Filed 3-5-12; 8:45 am]
BILLING CODE 3510-DS-P