[Federal Register Volume 68, Number 46 (Monday, March 10, 2003)]
[Notices]
[Pages 11369-11371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-5636]


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

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-806]


Silicon Metal from the People's Republic of China: Notice of 
Preliminary Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, U.S. 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an 
administrative review for Groupstars Chemical Co., Ltd. (Shandong) 
(Groupstars) under the antidumping duty order on silicon metal from the 
People's Republic of China (PRC). The period of review (POR) is from 
June 1, 2001 through May 31, 2002.
    Groupstars did not respond to the Department's antidumping 
questionnaire. Accordingly, we have applied adverse facts available 
(AFA) in determining Groupstars' margin. If these preliminary results 
are adopted in our final results, we will instruct the U.S. Customs 
Service to assess antidumping duties. Interested parties are invited to 
comment on these preliminary results. See the ``Preliminary Results of 
Review'' section of this notice.

EFFECTIVE DATE: March 10, 2003.

FOR FURTHER INFORMATION CONTACT: Christian Hughes or Matthew Renkey, 
AD/CVD Enforcement Group III, Office 7, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone 
(202) 482-0190 and (202)482-2312, respectively.

SUPPLEMENTARY INFORMATION:

Background

    The Department published in the Federal Register an antidumping 
duty order on silicon metal from the PRC on June 10, 1991. See 
Antidumping Duty Order: Silicon Metal from the People's Republic of 
China, 56 FR 26649 (June 10, 1991). On June 21, 2002, Groupstars, a 
Chinese exporter of silicon metal, submitted a timely request for the 
Department to conduct an administrative review for the period June 1, 
2001 through May 31, 2002. On July 18, 2002, the Department initiated 
an administrative review covering the period June 1, 2001 through May 
31, 2002. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Requests for Revocation in Part, 67 FR 48435 
(July 24, 2002). On August 21, 2002, the Department sent Groupstars the 
standard non-market-economy antidumping questionnaire. The deadline for 
responding to the questionnaire was September 27, 2002. As of October 
18, 2002, the Department still had not received a response from 
Groupstars, or a letter requesting an extension of the deadline. See 
Memorandum to File through Maureen Flannery, Program Manager, from 
Matthew Renkey, Analyst: Status of Questionnaire Response: Silicon 
Metal from the People's Republic of China (PRC), Administrative Review 
6/1/01-5/31/02, dated October 18, 2002.
    On October 30, 2002, the Department received a letter from counsel 
for Groupstars informing us that they were withdrawing from 
representation of Groupstars because they were also unsuccessful in 
eliciting a response from the company regarding the substantive nature 
of this case.

Scope of the Antidumping Duty Order

    The product covered by the order consists of silicon metal 
containing at least 96.00 but less than 99.99 percent of silicon by 
weight, and silicon metal with a higher aluminum content containing 
between 89 and 96 percent silicon by weight.
    The merchandise is currently classifiable under item numbers 
2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule of the 
United States (HTSUS) as a chemical product, but is commonly referred 
to as a metal. Semiconductor-grade silicon (silicon metal containing by 
weight not less than 99.99 percent of silicon and provided for in 
subheading 2804.61.00 of the HTSUS) is not subject to this order. This 
order is not limited to silicon metal used only as an alloy agent or in 
the chemical industry. Although the HTSUS subheading is provided for

[[Page 11370]]

convenience and customs purposes, the written description of the 
merchandise is dispositive.

Application of Facts Available

    We find that, in accordance with section 776 (a)(2) of the Tariff 
Act of 1930, as amended (the Act), the use of the facts otherwise 
available is warranted for Groupstars. Sections 776(a)(2)(A) and 
776(a)(2)(B) of the Act provide for the use of facts available when an 
interested party withholds information that has been requested by the 
Department, or when an interested party fails to provide the 
information requested in a timely manner and in the form required. 
Groupstars failed to provide information explicitly requested by the 
Department; therefore, we must resort to the facts otherwise available. 
Because Groupstars did not respond to the Department's questionnaire, 
sections 782(d) and (e) of the Act, which reference deficient 
submissions and the use of certain information provided by respondent, 
are not applicable. In addition, section 782(c)(1), which also mentions 
notification by the interested party, does not apply because Groupstars 
did not indicate that it was unable to submit the information required 
by the Department.
    Section 776(b) of the Act provides that, in selecting from among 
the facts available, the Department may use an inference that is 
adverse to the interests of the respondent, if it determines that a 
party has failed to cooperate to the best of its ability. In applying 
the facts otherwise available, the Department has determined that an 
adverse inference is warranted pursuant to section 776(b) of the Act 
because Groupstars failed to cooperate to the best of its ability.
    The Department finds that, by not providing any response to the 
questionnaire issued by the Department, Groupstars has failed to 
cooperate to the best of its ability. Groupstars did not submit to the 
Department any information or reason for its failure to respond. This 
information was in the sole possession of the respondent, and could not 
be obtained otherwise. Thus, the Department is precluded from 
calculating a margin for Groupstars or determining its eligibility for 
a separate rate. Therefore, in selecting from the facts available, the 
Department determines that an adverse inference is warranted. Because 
Groupstars is not eligible for a separate rate, it is considered part 
of the PRC-wide entity. In accordance with sections 776(a)(2)(A) and 
(B), as well as section 776(b) of the Act, we are applying total AFA to 
the PRC-wide entity. Section 776(b)(4) of the Act permits the 
Department to use as AFA ``any other information placed on the 
record.'' Thus, in selecting an AFA rate, the Department's practice has 
been to assign respondents who fail to cooperate with Department's 
investigation the highest margin determined for any party in the less-
than fair-value investigation or in any administrative review. See 
Sigma Corp. v. United States, 117 F.3d 1401,1411 (Fed. Cir. 1997); See 
also Sparklers from the People's Republic of China: Final Results of 
Antidumping Duty Administrative Review, 65 FR 43293, (July 13, 2000). 
As AFA, the Department is assigning the rate of 139.49 percent, which 
is the only rate, as well as the highest rate, from any segment of this 
proceeding. This is the rate from the petition, as adjusted by the 
Department in the investigation of sales at less than fair value (see 
Final Determination of Sales at Less Than Fair Value: Silicon Metal 
From the People's Republic of China, 56 FR 18570 (April 23, 1991)), and 
the rate currently in effect for all exporters. As discussed below, 
this rate has been corroborated.

Corroboration of Secondary Information Used As Adverse Facts Available

    Section 776(c) of the Act provides that when the Department relies 
on the facts otherwise available and relies on ``secondary 
information,'' the Department shall, to the extent practicable, 
corroborate that information from independent sources reasonably at the 
Department's disposal. The Statement of Administrative Action, H.R. 
Doc. 103-316 (SAA), clarifies that the petition is ``secondary 
information,'' and states that ``corroborate'' means to determine that 
the information used has probative value. See SAA at 870. To 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
to be used. We have previously examined the reliability of the 139.49 
rate and found it to be reliable. See Memorandum to Ed Yang, Office 
Director, Office 9, AD/CVD Enforcement, through Maureen Flannery, 
Program Manager, from Gideon Katz, Analyst: Corroboration of Data 
Contained in the Petition in the Antidumping Investigation of Silicon 
Metal from the People's Republic of China, dated March 2, 1998, and 
placed on the record of this review. We have no information in this 
administrative review which would indicate a change in the reliability 
of this rate.
    With respect to the relevance aspect of corroboration, the 
Department has considered information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin. For example, in Fresh Cut Flowers from Mexico: 
Final Results of Antidumping Administrative Review, 61 FR 6812 
(February 22, 1996), the Department disregarded the highest margin in 
that case as best information available (the predecessor to facts 
available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
discredited. See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated). None of these unusual circumstances are 
present here. Moreover, the rate selected is the rate currently 
applicable to all exporters, and there is no information on the record 
of this review that demonstrates that this rate is not relevant for use 
as AFA during this administrative review.
    Accordingly, we determine that the highest rate from any previous 
segment of this administrative proceeding (i.e., the rate of 139.49 
percent for the determination of sales at less than fair value) is in 
accord with section 776(c)'s requirement that secondary information be 
corroborated (i.e., that it have probative value).

Preliminary Results of Review

    We preliminarily determine that the following dumping margin 
exists:

------------------------------------------------------------------------
                                                Time
            Manufacturer/Exporter              Period   Margin (percent)
------------------------------------------------------------------------
PRC-Wide Rate...............................  6/1/01-             139.49
                                              5/31/02
------------------------------------------------------------------------

Duty Assessment and Cash Deposit Requirements

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. The Department 
will issue appropriate appraisement instructions directly to the 
Customs Service within 15 days of publication of the final results of 
review. For assessment purposes, for all PRC exporters, we will apply 
the rate listed above. Furthermore, the following deposit rates will be 
effective with respect to all shipments of silicon metal from the PRC 
entered, or withdrawn from warehouse, for consumption on or after the 
publication date of the final results of this review, as provided for 
by section

[[Page 11371]]

751(a)(2)(C) of the Act: (1) for all PRC exporters, the rate will be 
the PRC-wide rate, 139.49 percent. (2) for all non-PRC exporters of 
subject merchandise from the PRC, the cash deposit rate will be the 
rate applicable to the PRC supplier of that exporter. These deposit 
requirements, when imposed, shall remain in effect until publication of 
the final results of the next administrative review.

Public Comment

    Pursuant to section 351.224(b) of the Department's regulations, the 
Department will disclose to parties to the proceeding any calculations 
performed in connection with these preliminary results within five days 
of the date of publication of this notice. Pursuant to section 351.309 
of the Department's regulations, interested parties may submit written 
comments in response to these preliminary results. Case briefs should 
be submitted within 30 days after the date of publication of this 
notice, and rebuttal briefs, limited to arguments raised in case 
briefs, should be submitted no later than five days after the time 
limit for filing case briefs. Parties who submit arguments in this 
proceeding are requested to submit with the argument: (1) a statement 
of the issues, and (2) a brief summary of the argument. Case and 
rebuttal briefs must be served on interested parties in accordance with 
section 351.303(f) of the Department's regulations.
    Also, pursuant to section 351.310 of the Department's regulations, 
within 30 days of the date of publication of this notice, interested 
parties may request a public hearing on arguments to be raised in the 
case and rebuttal briefs. Unless the Secretary specifies otherwise, the 
hearing, if requested, will be held two days after the date for 
submission of rebuttal briefs. Parties will be notified of the time and 
location. The Department will publish the final results of this 
administrative review, including the results of its analysis of issues 
raised in any case or rebuttal briefs, not later than 120 days after 
publication of these preliminary results, unless that deadline is 
extended.

Notification of Interested Parties

    This notice also serves as a preliminary reminder to importers of 
their responsibility under section 351.402(f) of the Department's 
regulations 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 this notice are published in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 
sections 351.213 and 351.221 of the Department's regulations.

    Dated: March 3, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 03-5636 Filed 3-3-03; 8:45 am]
BILLING CODE 3510-DS-S