[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Notices]
[Pages 68999-69003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31984]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-570-840]


Manganese Metal from the People's Republic of China; Preliminary 
Results and Partial Rescission of Antidumping Administrative Review

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

ACTION: Notice of Preliminary Results and Partial Rescission of 
Antidumping Duty Administrative Review of Manganese Metal from the 
People's Republic of China.

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SUMMARY: We have preliminarily determined that sales by China 
Metallurgical Import & Export Hunan Corporation/Hunan Nonferrous Metals 
Import & Export Associated Corporation have been made below normal 
value during the period of review of February 1, 1998, through January 
31, 1999. China Hunan International Economic Development (Group) 
Corporation did not respond to our questionnaire and has been assigned 
a dumping margin based on adverse facts available. If these preliminary 
results are adopted in our final results of review, we will instruct 
the U.S. Customs Service to assess antidumping duties based on the 
difference between the export price and normal value on all appropriate 
entries.
    We have also determined that the review of China National 
Electronics Import & Export Hunan Company and Minmetals Precious & Rare 
Minerals Import & Export Corporation should be rescinded. Furthermore, 
neither Shieldalloy Metallurgical Corporation nor London & Scandinavian 
Metallurgical Co., Limited, subsidiaries of Metallurg, Inc., submitted 
a timely request for review. Therefore, sales by these companies have 
not been reviewed.
    We invite interested parties to comment on these preliminary 
results.

EFFECTIVE DATES: December 9, 1999.

FOR FURTHER INFORMATION CONTACT: Greg Campbell or Paul Stolz, Office I, 
Antidumping/Countervailing Duty Enforcement, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue NW., Washington, DC 20230; telephone 
(202) 482-2239 or (202) 482-4474, respectively.

SUPPLEMENTARY INFORMATION:

Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (the Act), are references to the provisions effective 
January 1, 1995, the effective date of the amendments made to the Act 
by the Uruguay Round Agreements Act (URAA). In addition, all references 
to the Department's regulations are to 19 CFR part 351 (April 1998).

Background

    On February 6, 1996, the Department of Commerce (the Department) 
published in the Federal Register the antidumping duty order on 
manganese metal from the People's Republic of China (PRC). See Notice 
of Amended Final Determination and Antidumping Duty Order: Manganese 
Metal from the People's Republic of China, 61 FR 4415 (February 6, 
1996) (LTFV Investigation). In accordance with 19 CFR 351.213(b)(2), on 
February 25, 1999, China Hunan International Economic Development 
(Group) Corporation (HIED), China Metallurgical Import & Export Hunan 
Corp./Hunan Nonferrous Metals Import & Export Associate Corp. (CMIECHN/
CNIECHN), and Minmetals Precious & Rare Minerals Import & Export 
(Minmetals) requested that we conduct an administrative review of this 
order. On February 26, 1999, Elkem Metals Company 1 (Elkem/
Eramet) requested that we conduct an administrative review of this 
order covering HIED, CMIECHN/CNIECHN, Minmetals, and China National 
Electronics Import & Export Hunan Company (CEIEC). On February 26, 
1999, Kerr-McGee Chemical, LLC (Kerr-McGee) requested that we conduct 
an administrative review of this order covering HIED.
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    \1\ Subsequent to this request, on June 30, 1999, the manganese 
metal production operations of Elkem Metals Company were acquired by 
Eramet Marietta Inc. Thus, this petitioner is referred to in this 
notice as ``Elkem/Eramet.''
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    On March 29, 1999, in accordance with 19 CFR 351.213(c)(3), we 
published a notice of initiation of this antidumping duty 
administrative review. See 64 FR 14860. On April 20, 1999, Sumitomo 
Canada, Limited, (SCL), submitted an entry of appearance and requested 
that it receive a questionnaire so that it could establish the identity 
of its Chinese supplier and that its sales were made to U.S. customers 
not below normal value.
    The Department is conducting this administrative review in 
accordance with section 751 of the Act. The period of review (POR) is 
February 1, 1998 through January 31, 1999.

Scope of Review

    The merchandise covered by this review is manganese metal, which is

[[Page 69000]]

composed principally of manganese, by weight, but also contains some 
impurities such as carbon, sulfur, phosphorous, iron and silicon. 
Manganese metal contains by weight not less than 95 percent manganese. 
All compositions, forms and sizes of manganese metal are included 
within the scope of this administrative review, including metal flake, 
powder, compressed powder, and fines. The subject merchandise is 
currently classifiable under subheadings 8111.00.45.00 and 
8111.00.60.00 of the Harmonized Tariff Schedule of the United States 
(HTSUS). Although the HTSUS subheadings are provided for convenience 
and customs purposes, our written description of the scope of this 
proceeding is dispositive.

Partial Rescission

    CEIEC notified the Department that it had not made any U.S. sales 
of subject merchandise during the POR. Entry data provided by the U.S. 
Customs Service confirms that there were no POR entries from CEIEC of 
manganese metal. Also, on May 7, 1999, Minmetals informed the 
Department that although it had made two shipments of subject 
merchandise to the United States at the end of the POR, it believes 
these shipments did not enter the United States during the POR. The 
Department has not identified any customs entries of subject 
merchandise from Minmetals during the POR.
    Therefore, consistent with the Department's regulations and 
practice, we are rescinding this review with respect to CEIEC and 
Minmetals. See 19 CFR 351.213(d)(3); Silicon Metal from Brazil; Final 
Results of Antidumping Duty Administrative Review, 61 FR 46763 
(September 5, 1996).

Untimely Requests for Review

    On April 20, 1999, 22 days after initiation of this administrative 
review, SCL submitted an entry of appearance, a request for access to 
business proprietary information and a request that it receive a 
questionnaire. On April 28, 1999, Shieldalloy Metallurgical Corporation 
(SMC) and London & Scandinavian Metallurgical Co., Limited, (LSM), 
subsidiaries of Metallurg, Inc., submitted a request that the 
Department extend the time limit for requesting an administrative 
review of LSM and that the Department initiate a review of its U.S. 
sales. The Department declined to extend the time limit for requesting 
an administrative review and did not initiate a review of LSM. Although 
these companies were not reviewed, based upon SCL's July 15, 1999 
submission, and upon LSM's August 30, 1999 submission, we were able to 
ascertain SCL's and LSM's suppliers and confirm that SCL and LSM 
entered the merchandise at the appropriate cash deposit rate. 
Therefore, we intend to instruct Customs to liquidate these entries 
collecting the antidumping duties posted at the time of entry. This is 
consistent with the Department's consideration of SCL's entries during 
the last review. See Manganese Metal from the People's Republic of 
China; Final Results of Antidumping Duty Administrative Review, 64 FR 
49447 (September 13, 1999).

Verification

    As provided in section 782(i) of the Act, we verified factor 
information provided by a supplier, Xiang Tan Manganese Mine (XTMM). We 
also conducted a sales verification at CMIECHN/CNIECHN. Our 
verification at each of these companies consisted of standard 
verification procedures, including the examination of relevant sales 
and financial records and the selection of original documentation 
containing relevant information. Our verification results are detailed 
in the verification reports on file in the Central Records Unit (CRU) 
in room B-099 of the Department's main building.

Separate Rates

    It is the Department's standard policy to assign all exporters of 
the merchandise subject to review in nonmarket economy (NME) countries 
a single rate unless an exporter can demonstrate an absence of 
government control, both in law and in fact, with respect to exports. 
To establish whether an exporter is sufficiently independent of 
government control to be entitled to a separate rate, the Department 
analyzes the exporter in light of the criteria established 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 
amplified in the 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). Evidence supporting, though not requiring, 
a finding of de jure absence of government control over export 
activities includes: (1) An absence of restrictive stipulations 
associated with an individual exporter's business and export licenses; 
(2) Any legislative enactments decentralizing control of companies; and 
(3) Any other formal measures by the government decentralizing control 
of companies. See Sparklers at 20589. A de facto analysis of absence of 
government control over exports is based on four factors--whether the 
respondent: (1) Sets its own export prices independent of the 
government and other exporters; (2) retains the proceeds from its 
export sales and makes independent decisions regarding the 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. See Silicon Carbide 
at 22587; see also Sparklers at 20589.
    In our final LTFV determination, we determined that there was de 
jure and de facto absence of government control of each company's 
export activities and determined that each company warranted a company-
specific dumping margin. See LTFV Investigation. For this period of 
review, CMIECHN/CNIECHN responded to the Department's request for 
information regarding separate rates. We have found that the evidence 
on the record is consistent with the final determination in the LTFV 
Investigation and CMIECHN/CNIECHN continues to demonstrate an absence 
of government control, both in law and in fact, with respect to this 
company's exports, in accordance with the criteria identified in 
Sparklers and Silicon Carbide.

Use of Facts Otherwise Available

    Section 776(a)(2) of the Act provides that if an interested party 
(1) withholds information that has been requested by the Department, 
(2) fails to provide such information in a timely manner or in the form 
requested, (3) significantly impedes a proceeding under the antidumping 
statute, or (4) provides information that cannot be verified, the 
Department shall use, subject to section 782(d), facts available in 
reaching the applicable determination.

1. Application of Facts Available

    We preliminarily determine that, in accordance with sections 
776(a)(2)(A) and (C) of the Act, the use of facts otherwise available 
is appropriate for HIED because it did not submit a response to our 
questionnaire issued to it on April 20, 1999.

2. Use of Adverse Facts Available

    In selecting from among the facts available, section 776(b) of the 
Act authorizes the Department to use an adverse inference if the 
Department finds that a party has failed to cooperate by not acting to 
the best of its ability to comply with requests for information. See 
Statement of Administrative Action (SAA), H.R. Doc. 316, Vol. 1, 103rd 
Cong., 2d sess. 870 at 870 (1994). To examine whether the respondent

[[Page 69001]]

``cooperated'' by ``acting to the best of its ability'' under section 
776(b) of the Act, the Department considers, inter alia, the accuracy 
and completeness of submitted information and whether the respondent 
has hindered the calculation of accurate dumping margins. See, e.g., 
Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final 
Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-
53820 (October 16, 1997).
    As discussed above, HIED failed to respond to the Department's 
questionnaire. Thus, we have determined that HIED withheld information 
we requested and significantly impeded the antidumping proceeding.
    We have, therefore, determined that HIED has not acted to the best 
of its ability to comply with our requests for information. 
Accordingly, consistent with section 776(b) of the Act, we have applied 
adverse facts available to this company.

3. Corroboration of Secondary Information

    In this review, we are using as adverse facts available the PRC-
wide rate (143.32 percent) determined for non-responding exporters 
involved in the LTFV Investigation. This margin represents the highest 
margin in the petition, as modified by the Department for the purposes 
of initiation. See Initiation of Antidumping Duty Investigation: 
Manganese Metal from the PRC, 59 FR 61869 (December 2, 1994) (LTFV 
Initiation).
    Information derived from the petition constitutes secondary 
information within the meaning of the SAA. See SAA at 870. Section 
776(c) of the Act provides that the Department shall, to the extent 
practicable, corroborate secondary information from independent sources 
reasonably at its disposal. The SAA provides that ``corroborate'' means 
that the Department will satisfy itself that the secondary information 
to be used has probative value. The SAA at 870, however, states further 
that ``the fact that corroboration may not be practicable in a given 
circumstance will not prevent the agencies from applying an adverse 
inference.'' In addition, the SAA, at 869, emphasizes that the 
Department need not prove that the facts available are the best 
alternative information.
    The PRC-wide rate being used in this proceeding as adverse facts 
available was previously corroborated. See Manganese Metal from the 
People's Republic of China; Final Results of Antidumping Duty 
Administrative Review, 64 FR 49447 (September 13, 1999). We have no new 
information that would lead us to reconsider that decision.

Export Price

    For U.S. sales made by CMIECHN/CNIECHN we calculated an export 
price, in accordance with section 772(a) of the Act, because the 
subject merchandise was sold to unaffiliated purchasers in the United 
States prior to importation into the United States and constructed 
export price treatment was not otherwise indicated.
    For these sales, we calculated export price based on the price to 
unaffiliated purchasers. We deducted an amount, where appropriate, for 
foreign inland freight, ocean freight, and marine insurance. The costs 
for these items were valued in the surrogate country (see discussion 
below).
    U.S. Customs entry data for the POR indicate that CMIECHN/CNIECHN 
was the direct exporter for many more shipments of manganese metal than 
could be accounted for by CMIECHN/CNIECHN's verified U.S. sales. Based 
upon our verification of CMIECHN/CNIECHN's total U.S. sales, we have 
preliminarily determined that these additional entries are not U.S. 
sales by CMIECHN/CNIECHN for the purposes of this review.
    Given our preliminary finding that these additional entries are not 
CMIECHN/CNIECHN sales for the purposes of this review, and consistent 
with our methodology adopted in the previous review, we have not 
calculated an export price for these entries. Also, for the reasons 
enumerated in the Use of Facts Otherwise Available section below, we 
likewise have not calculated an export price for HIED's sales.

Normal Value

1. Nonmarket-Economy Status

    For the calculation of dumping margins for merchandise originating 
in NME countries, section 773(c)(1) of the Act provides that the 
Department shall determine normal value (NV) using a factors-of-
production 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.
    The Department has treated the PRC as an NME country in all 
previous antidumping cases. In accordance with section 771(18)(c)(i) of 
the Act, any determination that a foreign country is a NME country 
shall remain in effect until revoked by the administering authority. 
None of the parties to this proceeding has contested such treatment in 
this review. Furthermore, 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. Therefore, we 
treated the PRC as a NME country for purposes of this review and 
calculated NV by valuing the factors of production in a comparable 
market-economy country which is a significant producer of comparable 
merchandise.

2. Surrogate-Country Selection

    In accordance with section 773(c)(4) of the Act and section 
351.408(b) of our regulations, we preliminarily determine that India is 
the most comparable surrogate to the PRC. (See Memorandum to Susan 
Kuhbach from Jeff May; ``Non-Market-Economy Status and Surrogate 
Country Selection'' dated July 13, 1999, a public copy of which is 
available in the Central Records Unit.) In addition, India is a 
significant producer of comparable merchandise. Therefore, for this 
review, we have selected India as the surrogate country and have used 
publicly available information relating to India, unless otherwise 
noted, to value the various factors of production.

3. Factors-of-Production Valuation

    For purposes of calculating NV, we valued PRC factors of production 
in accordance with section 773(c)(1) of the Act. Factors of production 
include but are not limited to the following elements: (1) hours of 
labor required; (2) quantities of raw materials employed; (3) amounts 
of energy and other utilities consumed; and (4) representative capital 
cost, including depreciation. In examining potential surrogate values, 
we selected, where possible, the publicly available value which was: 
(1) an average non-export value; (2) representative of a range of 
prices within the POR or most contemporaneous with the POR; (3) 
product-specific; and (4) tax-exclusive. Where we could not obtain a 
POR-representative price for an appropriate surrogate value, we 
selected a value in accordance with the remaining criteria mentioned 
above and which was the closest in time to the POR. In accordance with 
this methodology, we have valued the factors as described below.
    We valued manganese ore using a June 1998 export price quote (in 
U.S. dollars) from a Brazilian manganese mine for manganese carbonate 
ore. We adjusted this price further to account for the reported 
manganese content of the ore used in the PRC manufacture of the

[[Page 69002]]

subject merchandise and to account for the differences in 
transportation distances.
    To value various process chemicals used in the production of 
manganese metal, we used prices obtained from the following Indian 
sources: Indian Chemical Weekly (March, 1998 through March, 1999) and 
the Monthly Statistics of Foreign Trade of India, Volume II--Imports 
(March, 1998) (Import Statistics). Where necessary, we adjusted these 
values to reflect inflation up to the POR using an Indian wholesale 
price index (WPI) published by the International Monetary Fund (IMF). 
Additionally, we adjusted these values, where appropriate, to account 
for differences in chemical content and to account for freight costs 
incurred between the suppliers and manganese metal producers.
    To value the labor input, consistent with 19 CFR 351.408(c)(3), we 
used the regression-based estimated wage rate for the PRC as calculated 
by the Department.
    For selling, general, and administrative expenses (SG&A), factory 
overhead, and profit values, we used information from the Reserve Bank 
of India Bulletin (January, 1997) for the Indian industrial grouping 
``Processing and Manufacturing: Metals, Chemicals, and Products 
Thereof.'' To value factory overhead, we calculated the ratio of 
factory overhead expenses to the cost of materials and energy. Using 
the same source, we also calculated the SG&A expense as a percentage of 
the cost of materials, energy and factory overhead, and profit as a 
percentage of the cost of production (i.e., materials, energy, labor, 
factory overhead and SG&A).
    For most packing materials values, we used per-unit values based on 
the data in the Import Statistics. For iron drums, however, we used a 
price quote from an Indian manufacturer rather than a value from the 
Import Statistics because the quoted price was for the appropriate type 
of container used, whereas the Import Statistics were aggregated over 
various types of containers. We made further adjustments to account for 
freight costs incurred between the PRC supplier and manganese metal 
producers.
    To value electricity, we used the average rate applicable to large 
industrial users throughout India as reported in the 1995 Confederation 
of Indian Industries Handbook of Statistics. We adjusted the March 1, 
1995, value to reflect inflation up to the POR using the WPI published 
by the IMF.
    To value rail freight, we relied on rate tables published by the 
Indian Railway Conference Association. To value truck freight, we used 
a price quotation from an Indian freight provider.
    For a more detailed explanation of the methodology used in 
calculating various surrogate values, see Memorandum to the File from 
Case Team; ``Calculations for the Preliminary Results'' (December 2, 
1999).

Preliminary Results of the Review

    We hereby determine that the following weighted-average margins 
exist for the period February 1, 1998, through January 31, 1999:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
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CMIECHN/CNIECHN............................................         2.00
PRC-wide...................................................       143.32
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    Because we are rescinding the review with respect to CEIEC and 
Minmetals, the respective company-specific rates for these companies 
remain unchanged. Likewise, because SMC and LSM submitted an untimely 
request for review, LSM's sales of subject merchandise during the POR 
were not reviewed. Moreover, an administrative review was not initiated 
with respect to SCL for this POR, and, therefore, SCL's U.S. sales were 
not reviewed.
    Any interested party may request a hearing within 30 days of 
publication of this notice. Any hearing, if requested, will be held 
approximately 37 days after the publication of this notice. Interested 
parties may submit written comments (case briefs) within 30 days of the 
date of publication of this notice. Rebuttal comments (rebuttal 
briefs), which must be limited to issues raised in the case briefs, may 
be filed not later than 35 days after the date of publication. The 
Department will issue a notice of final results of this administrative 
review, including the results of its analysis of issues raised in any 
such written comments, within 120 days of publication of these 
preliminary results.

Assessment and Cash Deposit Rates

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The Department 
will issue appraisement instructions directly to the Customs Service.
    In order to assess duties on appropriate entries as a result of 
this review, we have calculated entry-specific duty assessment rates 
based on the ratio of the amount of duty calculated for each of 
CMIECHN/CNIECHN's verified sales during the POR to the total entered 
value of the corresponding entry. The Department will instruct the 
Customs Service to assess these rates on those entries which correspond 
to sales verified by the Department as having been made directly by 
CMIECHN/CNIECHN. With respect to SCL and LSM, third country resellers 
which established the identity of their suppliers, the Department will 
instruct Customs to liquidate these entries at the cash deposit rate in 
effect for their supplier(s) at the time of entry.
    As discussed in the Export Price section above, however, the 
Customs entry data for the POR indicates that many more shipments of 
manganese metal listing CMIECHN/CNIECHN as the manufacturer/exporter 
were entered into the United States than the number of POR sales 
reported by CMIECHN/CNIECHN. On those entries listing CMIECHN/CNIECHN 
as the direct exporter but for which there are no corresponding 
verified sales, the Department will instruct the Customs Service to 
assess the PRC-wide rate of 143.32 percent. This is consistent with the 
Department's practice as applied during the last review. See Manganese 
Metal from the People's Republic of China; Final Results of Antidumping 
Duty Administrative Review, 64 FR 49449 (September 13, 1999). The 
Department will likewise instruct the Customs Service to assess the 
PRC-wide rate on all POR entries from HIED and on all other PRC 
exporters that do not have separate rates.
    Furthermore, the following cash deposit requirements will be 
effective upon publication of the final results of this administrative 
review for all shipments of the subject merchandise entered, or 
withdrawn from warehouse, for consumption on or after the publication 
date, as provided for by section 751(a)(1) of the Act: (1) for CMIECHN/
CNIECHN, the cash deposit rate will be the rates established in the 
final results of this review for this firm; (2) for Minmetals and 
CEIEC, which we determined to be entitled to a separate rate in the 
LTFV Investigation but which did not have shipments or entries to the 
United States during the POR, the rates will continue to be 5.88 
percent and 11.77 percent, respectively (these are the rates which 
currently apply to these companies); (3) for sales made by LSM and SCL, 
the cash deposit rates will be those cash deposit rates in effect at 
the time of entry for their respective PRC supplier(s); 2 
(4) for other non-PRC

[[Page 69003]]

exporters of subject merchandise from the PRC, the cash deposit rate 
will be the rate applicable to the PRC supplier of that exporter; and 
(5) for all other PRC exporters, including HIED, the cash deposit rate 
will be 143.32 percent. These deposit requirements, when imposed, shall 
remain in effect until publication of the final results of the next 
administrative review.
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    \2\ See e.g., Manganese Metal from the People's Republic of 
China; Final Results of Antidumping Duty Administrative Review, 64 
FR 49447 (September 13, 1999); Fresh Garlic from the PRC; Final 
Results of Antidumping Duty Administrative Review and Partial 
Termination of Administrative Review, 62 FR 23758, 23760; Sparklers 
from the PRC; Final Results of Antidumping Duty Administrative 
Review, 61 FR 39630, 39631.
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    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this determination in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: December 2, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-31984 Filed 12-8-99; 8:45 am]
BILLING CODE 3510-DS-P