[Federal Register Volume 68, Number 194 (Tuesday, October 7, 2003)]
[Notices]
[Pages 57869-57875]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25384]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-862]


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

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

ACTION: Notice of Preliminary Results of Antidumping Duty 
Administrative Review.

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EFFECTIVE DATE: October 7, 2003.
SUMMARY: The Department of Commerce (``Department'') is conducting an 
administrative review of the antidumping duty order on foundry coke 
from the People's Republic of China (``PRC'') in response to requests 
from ABC Coke, Citizens Gas & Coke Utility, Erie Coke Corporation, 
Sloss Industries Corporation, and Tonawanda Coke Corporation 
(collectively, ``Domestic Producers'' or ``Petitioners''). The period 
of review (``POR'') is from March 8, 2001 through August 31, 2002.
    We preliminarily determine, based on adverse facts available, that 
CITIC Trading Company, Ltd. (``CITIC'') sold subject merchandise at 
less than normal value (``NV''). The preliminary results are listed 
below in the section titled ``Preliminary Results of Review.'' If these 
preliminary results are adopted in our final results, we will instruct 
the U.S. Bureau of Customs and Border Protection (``Customs'') to 
assess antidumping duties based on the PRC-wide rate. We invite 
interested parties to comment on these preliminary results. Parties who 
submit comments are requested to sumbit with each argument (1) a 
statement of the issue and (2) a brief summary of the argument.

FOR FURTHER INFORMATION CONTACT: Michael Holton, Office of AD/CVD 
Enforcement 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, D.C. 20230; telephone: (202) 482-
1324.

SUPPLEMENTARY INFORMATION:

Background

    On July 31, 2001, the Department published the antidumping duty 
order on foundry coke from the People's Republic of China (``Foundry 
Coke from the PRC''). See Notice of Final Determination of Sales at 
Less Than Fair Value: Foundry Coke Products From The People's Republic 
of China,

[[Page 57870]]

66 FR 39487 (July, 31, 2001); see also Notice of Amended Final 
Determination of Sales at Less Than Fair Value: Foundry Coke Products 
From The People's Republic of China, 66 FR 45962 (August 31, 2001), and 
Notice of Amended Final Determination of Sales at Less Than Fair Value 
and Antidumping Duty Order: Foundry Coke Products From The People's 
Republic of China, 66 FR 48025 (September 17, 2001). On September 3, 
2002, the Department published a notice of opportunity to request an 
administrative review for this order covering the period March 8, 2001, 
through August 31, 2002. See Antidumping or Countervailing Duty Order, 
Finding, or Suspended Investigation; Opportunity to Request 
Administrative Review, 67 FR 56267 (September 3, 2002). On September 
30, 2002, the Department received a request from the Petitioners, 
requesting the review of CITIC, in accordance with 19 CFR 351.213(b). 
The Department initiated the review on October 24, 2002. See Notice of 
Initiation of Antidumping and Countervailing Duty Administrative 
Reviews, 67 FR 65336 (October 24, 2002).
    On November 8, 2002, the Department issued an antidumping 
questionnaire to CITIC with instructions that it and the appropriate 
producers/suppliers (``suppliers'') of the subject merchandise are 
required to respond by the due dates. The original due dates were 
November 11, 2002, for section A and December 17, 2002, for sections C-
E. After two separate extensions, the Department received a timely 
section A questionnaire response, in part, on December 12, 2002, from 
CITIC. There were multiple transactions of subject merchandise during 
the POR in which CITIC was the exporter and other parties were the 
suppliers. During the POR, CITIC obtained the foundry coke that was 
ultimately sold in the United States from three suppliers.
    On December 16, 2002, the Department received a completed section A 
response from CITIC. On December 19, 2002, CITIC submitted its response 
to section C of the questionnaire. On January 3, 2003, CITIC requested 
a two-week extension for section D of the questionnaire, which was 
originally due on December 17, 2002. On January 7, 2003, the Department 
granted a one-week extension for section D of the questionnaire, 
setting a new deadline of January 13, 2003. CITIC did not supply the 
Department with a response to section D of the questionnaire by the 
January 13, 2003, deadline.
    On April 15, 2003, the Department issued CITIC a supplemental 
questionnaire with a response date of April 29, 2003. After five 
additional extensions, CITIC responded to the supplemental 
questionnaire, in part, on June 5, 2003, and stated that the Department 
would receive the full information as soon as the information was 
available. CITIC did not provide a complete response to all questions 
of the supplemental questionnaire.
    On May 1, 2003, we requested comments on surrogate-country 
selection and requested that parties provide surrogate factors of 
production values for the preliminary results no later than May 15, 
2003. We received comments from the Petitioners, on May 8, 2003. On May 
15, 2003, CITIC submitted publicly available Indian import statistics 
for valuing the subject merchandise's factors of production in this 
review.
    On May 28, 2003, the Department determined that it was not 
practicable to complete the preliminary results of this review within 
the statutory time limit. Consequently, in accordance with section 
751(a)(3)(A) of the Act and section 351.213(h)(1) of the Department's 
regulations, the Department extended the deadline for completion of the 
preliminary results of the administrative review by 120 days, to 
September 30, 2003. See Notice of Extension of Time Limit of the 
Preliminary Results of Antidumping Duty Administrative Review: Foundry 
Coke from the People's Republic of China, 68 FR 31681 (May 28, 2003) 
(``Extension of Time Limits''). On July 24, 2003, the Department 
published a correction to the Extension of Time Limits, due to 
incorrect information regarding the deadline of the preliminary 
results. Notice of Extension of Time Limit of the Preliminary Results 
of Antidumping Duty Administrative Review: Foundry Coke from the 
People's Republic of China; Correction, 68 FR 43712 (July 24, 2003).

Scope of Review

    For purposes of this investigation, the product covered is coke 
larger than 100 mm (4 inches) in maximum diameter and at least 50 
percent of which is retained on a 100-mm (4 inch) sieve, of a kind used 
in foundries.
    The foundry coke products subject to this investigation were 
classifiable under subheading 2704.00.00.10 (as of January 1, 2000) and 
are currently classifiable under subheading 2704.00.00.11 (as of July 
1, 2000) 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 investigation is dispositive.

Nonmarket Economy Country

    The Department has treated the PRC as a non-market economy 
(``NME'') country in all past antidumping investigations (see e.g., 
Notice of Final Determination of Sales at Less Than Fair Value: Bulk 
Aspirin From the People's Republic of China, 65 FR 33805 (May 25, 
2000), and Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Non-Frozen Apple Juice Concentrate from the People's 
Republic of China, 65 FR 19873 (April 13, 2000)). A designation as a 
NME remains in effect until it is revoked by the Department. See 
section 771(18)(C) of the Tariff Act of 1930, as amended (``the Act''). 
The respondents in this investigation have not requested a revocation 
of the PRC's NME status. We have, therefore, preliminarily determined 
to continue to treat the PRC as a NME country. When the Department is 
investigating imports from a NME, section 773(c)(1) of the Act directs 
us to base the NV on the NME producer's factors of production, valued 
in a comparable market economy that is a significant producer of 
comparable merchandise.
    Furthermore, no interested party has requested that the foundry 
coke industry in the PRC be treated as a market-oriented industry and 
no information has been provided that would lead to such a 
determination. Therefore, we have not treated the foundry coke industry 
in the PRC as a market-oriented industry in this investigation.

Separate Rate

    Although CITIC, a mandatory respondent, submitted a response to 
section A of the questionnaire, it did not respond to section D of the 
questionnaire and other vital information requested by the Department. 
As a mandatory respondent, CITIC was required to provide complete 
questionnaire responses. Therefore, as detailed in the ``Application of 
Adverse Facts Available'' section below, adverse facts available have 
been assigned to CITIC. As a result, CITIC will not receive a separate 
rate for these preliminary results.

Application of Facts Available

    On November 8, 2002, the Department sent CITIC section D of the 
questionnaire, requesting CITIC and its three suppliers to provide 
factors of production (``FOP'') information for the

[[Page 57871]]

subject merchandise during the POR. The original deadline to file a 
response to section D of the questionnaire was December 17, 2002. On 
December 6, 2002, CITIC requested an extension of the December 17, 
2002, due date for filing its response to section D of the 
questionnaire. On December 12, 2002, the Department granted an 
extension, giving CITIC until January 6, 2003, to file its section D 
questionnaire response.
    On January 3, 2003, CITIC requested a second two-week extension for 
filing its section D questionnaire response. Due to the necessity of 
meeting the statutory time limits, the Department only granted CITIC a 
one week extension, until January 13, 2003, for filing its response to 
section D of the questionnaire. On January 13, 2003, the Department did 
not receive a response from CITIC, either requesting a third extension 
or a response to section D of the questionnaire. One week later, the 
Department still had not received any response from CITIC or any other 
communication, and on January 21, 2003, the Department sent CITIC a 
letter requesting that CITIC file its late section D response by the 
close of business of the same day. Additionally, the letter requested 
that CITIC provide a detailed explanation on what measures it had taken 
to file section D of the questionnaire and what prevented it from 
submitting the response on January 13, 2003.
    On January 23, 2003, CITIC responded to the Department's letter of 
January 21, 2003, stating that because ``section D requires cooperation 
of unrelated producers of foundry coke . . . CITIC Trading has been 
unable to persuade those producers to undertake the time and expense of 
responding to the questionnaire, despite is best efforts.'' See CITIC's 
response to Department's letter of January 21, 2003, dated January 23, 
2003. On January 28, 2003, the Department sent a second letter 
requesting that CITIC file its late section D response. In addition, 
the Department requested that CITIC provide a detailed explanation of 
the measures it had taken in securing a response from it suppliers. 
CITIC did not provide a responses to the requested information 
identified in the letter of January 28, 2003.
    Because it is imperative that the Department obtains the FOP 
information for the normal value calculation, the Department attempted 
to contact CITIC's suppliers directly. Due to the lack of information 
on the record regarding CITIC's suppliers, on February 10, 2003, the 
Department requested that CITIC supply additional detailed contact 
information for its POR suppliers. On February 10, 2003, CITIC 
responded by stating that the contact information was already included 
in the section A response. Because CITIC had not provided names of 
persons to contact and because the information on the record was less 
than complete, on March 21, 2003, the Department again requested that 
CITIC supply complete and detailed contact information for its 
suppliers. On April 4, 2003, CITIC responded, providing the Department 
with names of the people whom the Department should contact for only 
two of the three suppliers.
    On April 9, 2003, using the contact information provided by CITIC, 
the Department attempted to fax two of the three suppliers (hereinafter 
``Supplier A,'' ``Supplier B'' and ``Supplier C''). The Department 
contacted Supplier A via fax with a response due date of April 23, 
2003, for the section D questionnaire. To date, we have not received a 
response from Supplier A, although the Department received conformation 
that the fax was transmitted successfully. See Memorandum to the File, 
from Michael Holton, Case Analyst, through James Doyle, Program 
Manager, regarding Fax Transmission Verification Report for Supplier A, 
dated April 10, 2003.
    With regard to Supplier B, the Department was unable to contact the 
company via fax on April 9, 2003. On April 10, 2003, the Department 
attempted to contact Supplier B a second time via fax, again there was 
no connection. On April 16, 2003, the Department made a third attempt 
to send section D of the questionnaire via fax to Supplier B. Again, 
the Department received no fax connection. See Memorandum to the File, 
from Michael Holton, Case Analyst, through James Doyle, Program 
Manager, regarding Fax Transmission Verification Report for Supplier B, 
dated April 16, 2003. Upon closer examination of the fax number 
provided by CITIC, the Department discovered that the fax number 
appeared to be incomplete. Thus, on May 1, 2003, the Department 
requested that CITIC provide a complete fax number for Supplier B. On 
May 2, 2003, CITIC's counsel informed the Department that CITIC was 
unable to find any other additional information regarding the Supplier 
B's fax number. See Memorandum to the File, from Michael Holton, Case 
Analyst, through James Doyle, Program Manager, regarding Request for a 
Correction to the Fax Number, dated May 6, 2003.
    Because the Department did not have the correct fax number for 
Supplier B and CITIC did not provide a fax number for Supplier C, the 
Department sent section D questionnaires via FedEx to these two 
suppliers on April 22, 2003. The Department received confirmation via 
the FedEx internet tracking system that section D of the questionnaire 
was delivered to Supplier B on May 15, 2003. See Memorandum to the 
File, from Michael Holton, Case Analyst, through James Doyle, Program 
Manager, regarding Delivery Status of Section D Questionnaire Sent to 
Supplier B, dated July 21, 2003. To date, we have not received a 
response from Supplier B. The section D questionnaire, however, for 
Supplier C was returned to the Department, with an indication that 
Supplier C was not in FedEx's service area. See Memorandum to the File, 
from Michael Holton, Case Analyst, through James Doyle, Program 
Manager, regarding Delivery Status of Section D Questionnaire Sent to 
Supplier C, dated July 21, 2003. Additionally, the Department requested 
assistance from its Chinese Commercial Service Division (``Division'') 
in contacting Supplier C. The Division made several attempts in 
locating and contacting the supplier, but it was unsuccessful in 
contacting them. See Memorandum to the File, from Chris Cloutier, 
Senior Import Administration Officer, United States Embassy Beijing, 
regarding Foundry Coke, dated September 23, 2003.
    On August 12, 2003, the Department sent CITIC a letter requesting 
several items with respect to Supplier C. First, the Department 
requested that CITIC reconsider its decision not to release Supplier 
C's name from APO protection, so the Department could receive aid in 
contacting the supplier from Chinese governmental agencies. Second, the 
Department requested documentation relating to CITIC's purchase of 
subject merchandise from Supplier C during the POR and post POR, which 
would contain further contact information. Third, the Department 
requested that CITIC reconfirm the contact information provided to the 
Department. Finally, the Department again requested that CITIC supply 
information and documentation regarding its efforts to persuade the 
three suppliers to respond to section D of the questionnaire. The 
Department requested that CITIC file its response to this letter no 
later than August 18, 2003. On August 18, 2003, the Department did not 
receive a response from CITIC with respect to the information we 
requested. On August 19, 2003, the Department contacted CITIC's counsel 
who indicated that he had faxed the letter to CITIC, yet he had not 
received a response from them. CITIC's counsel then requested that the 
Department send him an electronic copy of the letter so

[[Page 57872]]

that he could e-mail it to CITIC. The Department sent CITIC's counsel 
an electronic copy of the letter on August 19, 2003, requesting that 
CITIC file its response no later than August 22, 2003. See Memorandum 
to the File, from Michael Holton, Case Analyst, through James Doyle, 
Program Manager, regarding Request for Release from APO of Supplier's C 
Name, dated August 28, 2003. On August 22, 2003, the Department did not 
receive a response from CITIC regarding the information the Department 
requested.
    On August 27, 2003, the Department made a final request that CITIC 
respond to the letter sent on August 12, 2003. Despite the Department's 
best efforts to provide CITIC with every opportunity to respond to our 
requests, we did not receive a response to the letter originally sent 
out on August 12, 2003, nor has the Department received the FOP 
information necessary to calculate the a normal value.
    Section 776(a)(2) of the Act provides that if an interested party 
or any other person: (A) withholds information that has been requested 
by the Department; (B) fails to provide such information in a timely 
manner or in the form or manner requested under the antidumping 
statute; (C) significantly impedes an antidumping review; or (D) 
provides such information but the information cannot be verified, the 
Department shall use the facts otherwise available in reaching the 
applicable determination as provided in Section 782 (d) of the Act. See 
Dynamic Random Access Memory Semiconductors of One Megabit or Above 
From the Republic of Korea: Preliminary Results of Antidumping Duty 
Administrative Review and Notice of Intent Not To Revoke Order in Part, 
64 FR 30481 (June 8, 1999); Silicon Metal From The People's Republic of 
China; Final Results of Antidumping Duty Administrative Review, 63 FR 
37850 (July 14, 1998); Silicon Metal From The People's Republic of 
China; Preliminary Results of Antidumping Duty Administrative Review, 
63 FR 11654 (March. 10, 1998). CITIC and its suppliers, as ``interested 
parties,'' have failed to respond and CITIC has engaged in pattern of 
non-compliance in submitting its responses to the Department's request 
for information, which have impeded the Department's best efforts in 
conducting this review. Specifically, CITIC failed to either report or 
supply the Department with FOP information. For these reasons, the 
Department finds that use of facts otherwise available is appropriate 
for these preliminary results.
    Section 782(e) of the Act provides that the Department ``shall not 
decline to consider information that is submitted by an interested 
party and is necessary to the determination but does not meet all the 
applicable requirements established by the administering authority'' if 
(1) the information is submitted by the deadline established for its 
submission, (2) the information can be verified, (3) the information is 
not so incomplete that it cannot serve as a reliable basis for reaching 
the applicable determination, (4) the interested party has demonstrated 
that it acted to the best of its ability in providing the information 
and meeting the requirements established by the Department with respect 
to the information, and (5) the information can be used without undue 
difficulties.
    For the Department to calculate an accurate margin in an NME 
proceeding, it needs valid FOP information. CITIC and its suppliers 
failed to provide the FOP information for the transactions. There has 
been no alternative or substitutable information suggested for use in 
place of the missing FOP data. Therefore, in cognizance of CITIC's 
submission of section A and section C response, we find that the 
submitted data is nevertheless so incomplete that reliance on it would 
not result in an accurate measurement or reflection of CITIC's selling 
practices. Further, as detailed above, CITIC and its suppliers had 
ample time and extraordinary number of opportunities to submit the 
requested FOP data for this review and the requested explanation as to 
its efforts to secure responses from the suppliers, but they failed to 
do so.
    Section 776(b) of the Act provides that, if the Department finds 
that an interested party has failed to cooperate by not acting to the 
best of its ability to comply with a request for information, the 
Department may use an inference that is adverse to the interests of 
that party in selecting from among the facts otherwise available. In 
addition, the Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act, H. Doc. 316, Vol. 1, 103d Cong. (1994) 
(SAA), establishes that the Department may employ an adverse inference 
``. . . to ensure that the party does not obtain a more favorable 
result by failing to cooperate than if it had cooperated fully.'' See 
SAA at 870. It also instructs the Department, in employing adverse 
inferences, to consider ``. . . the extent to which a party may benefit 
from its own lack of cooperation.'' Id.
    When determining whether a company has acted to the best of their 
ability the Department ``must make an objective showing that a 
reasonable and responsible importer would have known that the requested 
information was required to be kept and maintained under the applicable 
statutes, rules, and regulations;'' and ``a subjective showing that the 
respondent under investigation not only has failed to promptly produce 
the requested information, but further that the failure to fully 
respond is the result of the respondent's lack of cooperation in 
either: (a) failing to keep and maintain all required records, or (b) 
failing to put forth its maximum efforts to investigate and obtain the 
requested information from its records.'' See Nippon Steel Co. v. U.S., 
337 F.3d 1373 (Fed Cir 2003) (``Nippon'').
    In this particular case, CITIC and its suppliers failed to respond 
to several of the Department's requests for information for which they 
should have known the Department would need to conduct this 
administrative review. We note that CITIC participated in the 
investigation only two years ago and one of its suppliers during this 
review also participated in that investigation. See Memorandum to the 
File, from Michael Holton, Case Analyst, through James Doyle, Program 
Manager, regarding CITIC's Suppliers in the Investigation, dated 
September 23, 2003. Therefore, the Department finds that, by not 
providing the necessary responses to the questionnaires issued by the 
Department, CITIC and its suppliers have failed to cooperate to the 
best of its ability.
    First, FOP information is fundamental for calculating the a dumping 
margin. Section 771(35)(A) of the Act, requires that dumping margins 
are calculated by comparing the NV to the export price or constructed 
export price. For NME countries, the Act states that the NV is 
determined ``on the basis of the value of the factors of production 
utilized in producing the merchandise.'' See section 773(c)(1) of the 
Act. Because this is an NME proceeding, it is necessary that the 
Department have valid FOP information in order to calculate the NV. In 
cases such as this, we are precluded from reviewing the FOP of the 
suppliers, and absent any FOP information provided, the Department 
cannot simply create or postulate the costs of the uncooperative 
suppliers. In addition, the Department has no other FOP information on 
the record. Because CITIC and its suppliers have failed to provided FOP 
information for this administrative review the Department cannot 
properly calculate a dumping margin in accordance with section 
773(c)(1) of the Act. See Notice of Final Determination of Sales at 
Less Than Fair Value: Creatine Monohydrate from

[[Page 57873]]

the People's Republic of China, 64 FR 71104, 71108 (December 20, 1999) 
(``Creatine from the PRC'');see also Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From the People's Republic of China; 
Final Results of 1997-998 Antidumping Duty Administrative Review and 
Final Results of New Shipper Review, 64 FR 61837, 61846 (November 15, 
1999) (``TRBs-11''); see also Freshwater Crawfish Tail Meat from the 
People's Republic of China; Notice of Final Results of Antidumping Duty 
Administrative Review, 68 FR 19504 (April 21, 2003), and accompanying 
Issues and Decision Memorandum, Comment 7 (``Crawfish''). Because CITIC 
and one of its suppliers had participated in the original 
investigation, it is reasonable to presume that CITIC should have known 
that the Department would request FOP information for this 
administrative review. Because CITIC and its suppliers failed to 
provide the information which they knew the Department would need to 
calculate a dumping margin, the Department finds that CITIC and its 
suppliers have not acted to the best of their ability.
    Second, CITIC and the suppliers failed to provided any explanation 
why they were unable provide the FOP information, nor did they offer 
any alternative forms by which they might be able to comply with the 
Department's requests. As the Court of Appeals for the Federal Circuit 
has held, respondents must ``put forth its maximum efforts'' in 
complying with the Department's requests. See Nippon, 337 F.3d at 1382. 
The issue of cooperation from unrelated suppliers was raised by CITIC 
in the investigation. CITIC should have known that its claims of being 
unable to persuade unrelated supplies to provide FOP information would 
require convincing evidence of the suppliers' inability or 
unwillingness to supply the requested information. See CITIC Trading 
Co., Ltd et al v. U.S., No. 01-00901, slip op. 03-23 (CIT 2003) 
(finding that CITIC acted to the best of its ability when in it 
provided Commerce with documentation that its unrelated non-responding 
suppliers had been shutdown). On numerous occasions, the Department 
requested that CITIC supply detailed information regarding its attempts 
to contact its suppliers for the FOP information. The only response the 
Department received from CITIC was a conclusory statement explaining 
that ``section D requires cooperation of unrelated producers of foundry 
coke . . . CITIC Trading has been unable to persuade those producers to 
undertake the time and expense of responding to the questionnaire, 
despite is best efforts.'' See CITIC's response to Department's letter 
of January 21, 2003, dated January 23, 2003.
    CITIC's claim that it was unable persuade it suppliers to cooperate 
despite its best efforts, provides the Department with no reliable 
basis to determine that CITIC in fact cooperated to the best of its 
ability. As noted earlier, the Department requested that CITIC explain 
and provide documentation of its efforts to persuade its supplies to 
respond to section D of the questionnaire. CITIC failed to provide any 
explanation or documentation showing that it had contacted its 
suppliers to respond to section D of the questionnaires. Because the 
information on the record is so incomplete it is impossible for the 
Department to determine what efforts CITIC made in contacting its 
suppliers regarding their cooperation in responding to section D of the 
questionnaire. Therefore, the Department finds that CITIC has not acted 
to the best of its ability.
    Additionally, it has been the Department practice to apply adverse 
facts available when a respondent has failed to provide convincing 
evidence ``claiming that their suppliers cannot supply requested 
factors of production information.'' See Creatine from the PRC, 64 FR 
at 71108 (applying adverse facts available because the respondent did 
not provide an acceptable explanation on the record for its suppliers 
failure to provide the FOP information); see also TRBs-11, 64 FR at 
61846 (finding that the respondent did not act to the best of its 
ability when it was unable to provide letters from unrelated suppliers 
stating their unwillingness to supply factors of production 
information); see also Notice of Fresh Garlic From the People's 
Republic of China: Final Results of Antidumping Duty New Shipper 
Review, 68 FR 36767, 36768 (June 19, 2003) (``Garlic'') (applying 
adverse facts available when a supplier stated that it was unwilling to 
provide details on its production process or its FOP; and the 
respondent did not provide an explanation as to why it or its supplier 
could not provide the FOP information); see also Notice of Certain 
Cased Pencils from the People's Republic of China; Final Results and 
Partial Rescission of Antidumping Duty Administrative Review, 67 FR 
48612 (July 25, 2002), and accompanying Issues and Decision Memorandum, 
Comment 10 (finding that there was no acceptable explanation on the 
record for the supplier's failure to provide factor of production 
information, an adverse inference in applying facts available was 
warranted due to the supplier's failure to act to the best of its 
ability).
    Although the Department made extensive efforts to obtain the 
information, it is ultimately CITIC's responsibility for submitting 
accurate FOP information as it is the party that is seeking the rate 
based on the FOP information and it is more readily available to them, 
and any ``failures, even if made by a supplier, may provide grounds for 
the application of adverse facts available.'' See Crawfish 68 FR at 
19504; see also Garlic 68 FR at 36768.
    Finally, CITIC engaged in pattern of non-compliance to the 
Department's requests. On numerous occasions, CITIC requested 
extensions to the original filing dates which the Department granted. 
After granting CITIC's requested extensions to file its section D 
responses on two separate occasions, and nearly one full month from the 
original due date, CITIC nonetheless failed to respond to the 
Department's request for FOP information. Only after two further 
requests by the Department did CITIC respond that it was unable to get 
its suppliers to respond to section D of the questionnaire. The 
Department finds it is reasonable that CITIC could have submitted this 
information before the original deadline for information had passed. If 
CITIC was having problems in obtaining the information from its 
suppliers, it should have notified the Department at that time. 
Instead, CITIC informed the Department only after the deadline passed 
and after the Department had sent two requests for the information.
    Similarly, on four separate occasions the Department granted 
CITIC's requests to extend the deadline to file its response to the 
Department's supplemental questionnaire. Again, only after the 
Department sent a letter requesting that the late information be 
supplied did CITIC respond. Additionally, CITIC's response to the 
supplemental questionnaire was incomplete, informing the Department 
that it would supply the missing information at a later date. To date, 
the Department has not received a complete supplemental questionnaire 
response. Further, as noted earlier, CITIC failed to respond on three 
separate occasions to the Department's requests for information 
regarding Supplier C and any documentation with respect to each of its 
suppliers purported inability to supply the FOP information. The 
information that the Department requested was for documentation 
relating to CITIC's purchase of subject merchandise from Supplier C 
(e.g., contracts, payment documentation,

[[Page 57874]]

shipment documentation, etc.). A reasonable respondent would have 
maintained all this documentation in anticipation the Department would 
request it. Finally, throughout the process the Department informed 
CITIC of the importance of the information and the need to respond to 
the requests for information.
    Therefore, in accordance with the statute, the Department finds 
that CITIC and its suppliers, as interested parties, have not acted to 
the best of their ability. First, it reasonable that CITIC should have 
known, as a responsible exporter, that the requested FOP information 
was required to be kept and maintained under the applicable statutes, 
rules, and regulations, as CITIC and one of its suppliers participated 
in the original investigation. Second, it reasonable that an interested 
party could have provided an explanation for either its inability to 
respond to the Department's requested information or offer alternative 
forms for which to comply with the Department's requests. Further, it 
is the Department's procedure to apply adverse facts available when a 
respondent is unable to provide an explanation and documentation for 
its failure to supply complete FOP information, even if it is the 
failure of one of its suppliers. Finally, the Department finds that 
CITIC and its suppliers, by failing produce the requested information, 
engaged in a pattern of non-compliance and also failed to put forth a 
maximum efforts to investigate and obtain the requested information 
from their records. See Nippon, 337 F.3d at 1382. Thus, because CITIC 
and its suppliers have failed to act to the best of their ability the 
Departments finds that an adverse facts available is applicable to this 
review.
    An adverse inference may include reliance on information derived 
from the petition, the final determination in the investigation, any 
previous review, or any other information placed on the record. See 
section 776(b) of the Act. Section 776(c) of the Act provides, however, 
that, when the Department relies on secondary information rather than 
on information obtained in the course of a review, the Department 
shall, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. The SAA states 
that the independent sources may include published price lists, 
official import statistics and customs data, and information obtained 
from interested parties during the particular investigation or review. 
See SAA at 870. The SAA clarifies that ``corroborate'' means that the 
Department will satisfy itself that the secondary information to be 
used has probative value. See id. As discussed in Notice of Preliminary 
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) 
(``TRBs''), to corroborate secondary information, the Department will, 
to the extent practicable, examine the reliability and relevance of the 
information used.
    The highest rate determined in any segment of this proceeding is 
the PRC-wide rate from the investigation, which is 214.89 percent; it 
is currently the PRC-wide rate and was calculated based on information 
contained in the petition. See Final Determination of Sales at Less 
Than Fair Value: Foundry Coke Products From The People's Republic of 
China, 66 FR 39487 (July, 31, 2001). The information contained in the 
petition was corroborated for the final determination of the 
investigation. In the investigation, the Department reviewed the 
adequacy and accuracy of the petition. To the extent practicable, the 
Department examined the key elements of the U.S. price and NV 
calculations on which the petition margin was based and compared the 
sources used in the petition to publicly available information, where 
available, and respondent data as appropriate. See Notice of 
Preliminary Determination of Sales at Less Than Fair Value: Foundry 
Coke From the People's Republic of China, 66 FR 13885 (March 8, 2001). 
Additionally, no information has been presented in the current review 
that calls into question the reliability of this information. We note 
that this is the highest rate from the investigation and is less than 
two years old. Thus, the Department finds that the information 
continues to be reliable.
    With respect to the relevance aspect of corroboration, the 
Department stated in TRBs that it will ``consider information 
reasonably at its disposal as to whether there are circumstances that 
would render a margin irrelevant. Where circumstances indicate that the 
selected margin is not appropriate as adverse facts available, the 
Department will disregard the margin and determine an appropriate 
margin.'' See TRBs at 61 FR 57392; see also Stainless Steel Sheet and 
Strip in Coils from Taiwan; Final Result and Rescission of Antidumping 
Duty Administrative Review, 67 FR 40914, 40916 (June 14, 2002) (where 
the Department disregarded the highest margin for the use as adverse 
facts available because the margin was based on a finding of middleman 
dumping by another producer). The rate used is the rate currently 
applicable to all exporters subject to the PRC-wide rate. Further, 
there is no information on the administrative record of the current 
review that indicates the application of this rate would be 
inappropriate or that the margin is not relevant. Therefore, for all 
sales of subject merchandise by the PRC entity, we have applied, as 
adverse facts available, the 214.89 percent margin from the 
investigation and have satisfied the corroboration requirements under 
section 776(c) of the Act. See Persulfates from the People's Republic 
of China: Preliminary Results of Antidumping Duty Administrative 
Review, 66 FR 18439, 18441 (April 9, 2001) (employing a petition rate 
used as adverse facts available in a previous segment as adverse facts 
available in the current review).

Preliminary Results Of The Review

    As a result of the application of adverse facts available, we 
preliminarily determine that a dumping margin of 214.89 percent exists 
for the period March 8, 2001, through August 31, 2002, on all exports 
of foundry coke by the PRC entity.
    An interested party may request a hearing within 30 days of 
publication of these preliminary results. Any hearing, if requested, 
will be held 37 days after the date of publication, or the first 
business day thereafter, unless the Department alters the date per 19 
CFR 351.310(d). Interested parties may submit case briefs and/or 
written comments no later than 30 days after the date of publication of 
these preliminary results of review. Rebuttal briefs and rebuttals to 
written comments, limited to issues raised in the case briefs and 
comments, may be filed no later than 35 days after the date of 
publication of this notice. Parties who submit argument in this 
proceeding 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.
    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 brief, within 120 days of publication of 
this notice. See 19 CFR 351.213(h)(1).

Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and Customs shall assess, antidumping duties on all appropriate 
entries. The Department will issue appropriate

[[Page 57875]]

assessment instructions directly to Customs upon completion of this 
review. If these preliminary results are adopted in our final results 
of review, we will direct Customs to assess the resulting rate against 
the entered customs value for the subject merchandise on each 
importer's/customer's entries during the POR.

Cash-Deposit Requirements

    The following cash-deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) for all previously 
investigated companies which have a separate rate, the cash-deposit 
rates will continue to be the company specific rates published for the 
most recent period; (2) for all other PRC exporters, including CITIC, 
the cash-deposit rate will be the PRC countrywide rate, which is 214.89 
percent; and (3) for all non-PRC exporters of subject merchandise, 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.

Notification To Importers

    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 these preliminary results of review 
in accordance with sections 751(a)(2)(B) and 777(i)(1) of the Act.

    Dated: September 30, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-25384 Filed 10-6-03; 8:45 am]
BILLING CODE 3510-DS-S