[Federal Register Volume 68, Number 197 (Friday, October 10, 2003)]
[Notices]
[Pages 58658-58660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-25771]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-847]


Persulfates from the People's Republic of China: Notice of 
Preliminary Results of Changed Circumstances Review

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

EFFECTIVE DATE: October 10, 2003.

FOR FURTHER INFORMATION CONTACT: Mike Strollo or Patrick Connolly at 
(202) 482-0629 or (202) 482-1779, respectively, Office of AD/CVD 
Enforcement, Office 2, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230.
SUMMARY: On February 21, 2003, in response to a request by FMC 
Corporation, a U.S. producer of persulfates and an interested party in 
this proceeding, the Department of Commerce initiated a changed 
circumstances review of the antidumping duty order on persulfates from 
the People's Republic of China, as described below.
    We preliminarily determine that Degussa-AJ (Shanghai) Initiators 
Co., Ltd.'s factors of production have not changed substantially since 
Degussa AG's investment in Shanghai Ai Jian Reagent Works. As a result, 
the Department will consider in any future revocation inquiry any 
administrative reviews in which Shanghai Ai Jian Import and Export 
Corporation procured its products exported to the United States from 
Shanghai Ai Jian Reagent Works. Interested parties are invited to 
comment on these preliminary results.

SUPPLEMENTARY INFORMATION:

Background

    On July 7, 1997, the Department published in the Federal Register 
the antidumping duty order on persulfates from the PRC. See Notice of 
Antidumping Duty Order and Amended Final Determination of Sales at Less 
Than Fair Value: Persulfates From the People's Republic of China, 62 FR 
36259 (July 7, 1997). In addition, on August 27, 2002, the Department 
initiated an administrative review of the antidumping duty order on 
persulfates covering one exporter from the People's Republic of China 
(PRC), Shanghai Ai Jian Import and Export Corporation (Ai Jian). See 
Initiation of Antidumping and Countervailing Duty Administrative 
Reviews and Requests for Revocation in Part, 67 FR 55000 (Aug. 27, 
2002). As part of its request for review, Ai Jian asked the Department 
to revoke the antidumping duty order with respect to its exports 
produced by Ai Jian's supplying factory, Shanghai Ai Jian Reagent Works 
(AJ Works).
    On January 7, 2003, FMC Corporation (FMC), a U.S. producer of 
persulfates, notified the Department that Degussa AG, a German company, 
had purchased 70 percent of AJ Works and that, as a result, the name of 
the factory had been changed to Degussa (Shanghai) Initiators Co., Ltd. 
(Degussa-AJ). FMC requested that the Department initiate a changed 
circumstances review to determine whether Degussa-AJ is, in fact, the 
successor-in-interest to AJ Works, and hence, whether it should be 
considered the same entity with regards to the pending revocation 
request.
    Based on the information submitted by FMC regarding Degussa AG's 
investment in AJ Works, the Department determined that there was 
sufficient evidence of changed circumstances to warrant a review under 
section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 
19 CFR 351.216(d). Consequently, the Department published a notice of 
initiation of this review on February 28, 2003. See Persulfates from 
the People's Republic of China: Notice of Initiation of Changed 
Circumstances Review, 68 FR 9636 (Feb. 28, 2003) (Initiation Notice). 
The Department denied FMC's request that the Department issue 
preliminary results of the changed circumstances review in conjunction 
with the notice of initiation because FMC did not provide sufficient 
evidence to support a preliminary finding. The Department invited 
comments from interested parties in the initiation notice and stated 
that it would publish in the Federal Register a notice of preliminary 
results of changed circumstances review, in accordance with 19 CFR 
351.222(c)(3)(i), prior to the issuance of the final results.
    Since the Department's notice of initiation of this review, the 
following events have occurred:
    On March 11, 2003, the Department issued a questionnaire to 
Degussa-AJ requesting details of Degussa AG's investment in AJ Works 
and its impact on the production operations of Degussa-AJ. Ai Jian and 
Degussa-AJ (collectively, Ai Jian/Degussa) responded to this 
questionnaire on April 1, 2003.
    On March 19, 2003, Ai Jian withdrew its request for revocation in 
the 2001-2002 administrative review.
    On May 1, 2003, the petitioner submitted a letter in which it 
argued that Degussa-AJ is not the successor-in-interest to AJ Works. 
The petitioner further argued that the Department should assign the 
PRC-wide rate to all imports from Ai Jian, retroactive to the date of 
Degussa AG's purchase of AJ Works. Ai Jian/Degussa responded to these 
arguments on May 12, 2003.
    On May 2, 2003, the Department issued a supplemental questionnaire 
to Ai Jian/Degussa. Ai Jian/Degussa responded to this questionnaire on 
May 23, 2003.
    On July 31, 2003, the petitioner requested that the Department 
conduct an administrative review of Ai Jian covering the period July 1, 
2002, through June 30, 2003.

Scope Of Review

    The products covered by this review are persulfates, including 
ammonium, potassium, and sodium persulfates. The chemical formula for 
these persulfates are, respectively, (NH[bdi4])[bdi2]S[bdi2]O[bdi8], 
K[bdi2]S[bdi2]O[bdi8], and Na[bdi2]S[bdi2]O[bdi8]. Potassium 
persulfates are currently classifiable under subheading 2833.40.10 of 
the Harmonized Tariff Schedule of the United States (HTSUS). Sodium 
persulfates are classifiable under HTSUS subheading 2833.40.20. 
Ammonium and other persulfates are classifiable under HTSUS subheadings 
2833.40.50 and 2833.40.60. Although the HTSUS subheadings are provided 
for convenience and customs purposes, the written description of the 
scope of this review is dispositive.

Preliminary Results

    The Department conducts successor-in-interest inquiries under 
section 751(b) of the Act and 19 CFR 351.216 and 221(c)(3) (i.e., the 
provisions governing changed circumstances reviews). Because these 
provisions do not provide explicit guidance, the Department has 
developed the following framework for conduct of these reviews.

[[Page 58659]]

 Specifically, in making a normal successor-in-interest determination, 
the Department examines several factors including, but not limited to, 
changes in: (1) management; (2) production facilities; (3) supplier 
relationships; and (4) customer base. See Notice of Final Results of 
Changed Circumstances Antidumping Duty Administrative Review: 
Polychloroprene Rubber From Japan, 67 FR 58 (Jan. 2, 2002) 
(Polychloroprene Rubber from Japan), and Brass Sheet and Strip from 
Canada: Notice of Final Results of Antidumping Administrative Review, 
57 FR 20460 (May 13, 1992) (Brass Sheet and Strip from Canada). While 
no one of these factors is dispositive, the Department will generally 
consider the new company to be the successor to the previous company if 
its resulting operation is not materially dissimilar to that of its 
predecessor. See Industrial Phosphoric Acid from Israel: Final Results 
of Changed Circumstances Review, 59 FR 6944 (Feb. 14, 1994).
    This analytical framework is tailored for exporters of subject 
merchandise, because any findings made pursuant to changed 
circumstances reviews are intended to apply to entities assigned their 
own specific cash deposit rates. Because the circumstances here involve 
a significant investment by a market economy company in a producer 
located in a nonmarket economy country (NME), not an exporter assigned 
a separate cash deposit rate, the analysis applied here differs from 
determinations in other changed circumstances reviews. See the 
Initiation Notice, 68 at FR 9637.
    The Department's general practice in cases involving NME countries 
is to assign rates to exporters rather than producers because the 
exporters are the entities that determine the price at which the 
subject merchandise is sold to the United States. See Notice of Final 
Determination of Sales at Less Than Fair Value: Persulfates From the 
People's Republic of China, 62 FR 27222, 27228 (May 19, 1997) 
(Persulfates LTFV Final). See also Manganese Metal from the People's 
Republic of China; Final Results and Partial Rescission of Antidumping 
Duty Administrative Review, 63 FR 12441, 12449 (Mar. 13, 1998). See 
also Notice of Final Determination of Sales at Less Than Fair Value: 
Pure Magnesium in Granular Form From the People's Republic of China, 66 
FR 49345 (Sept. 27, 2001) and accompanying decision memorandum at 
Comment 2. See also Antidumping Duties; Countervailing Duties; Final 
Rule, 62 FR 27295, 27303 (May 19, 1997). In the event that an exporter 
may qualify for revocation, however, such revocation normally is 
limited to merchandise of certain producers. The regulations address 
revocation determinations involving non-producing exporters:

     In the case of an exporter that is not the producer of subject 
merchandise, the Secretary normally will revoke an order in part under 
paragraph (b)(2) of this section only with respect to subject 
merchandise produced or supplied by those companies that supplied the 
exporter during the time period that formed the basis for the 
revocation.

See 19 CFR 351.222(b)(3).

    Therefore, this changed circumstances review has relevance only to 
the extent that it will impact Ai Jian's future revocation eligibility. 
Pursuant to 19 CFR 351.222(b)(3), the Department will revoke an 
exporter (e.g., Ai Jian) from an order only with respect to subject 
merchandise produced or supplied by the producer(s) that supplied the 
exporter during the time period that forms the basis for the revocation 
(i.e., three consecutive years). Should the Department find that the 
factors of production have not changed substantially since Degussa AG's 
investment in AJ Works, the Department will consider in any future 
revocation inquiry any administrative reviews in which Ai Jian procured 
its products exported to the United States from AJ Works. On the 
contrary, should the Department find at the final results of this 
changed circumstances review that the factors of production of Degussa-
AJ have changed so substantially from the merchandise produced by AJ 
Works that the resulting operation is materially dissimilar to that of 
its predecessor, Ai Jian will need to complete three new administrative 
reviews with Degussa-AJ, its ``new'' supplier, before it may qualify 
for revocation.
    In order to evaluate whether Degussa AG's investment in AJ Works 
impacts the Department's previous dumping findings made with respect to 
Ai Jian, therefore, we have focused our analysis on any changes in 
Degussa-AJ's factors of production. Under the Department's NME 
methodology, these factors of production form the basis for normal 
value and, as a result, are an essential component of the margin 
calculated for Ai Jian. Therefore, we examined the following areas in 
making our determination: (1) management; (2) production facilities; 
and (3) supplier relationships. Because Degussa-AJ's customer base is 
not relevant to our analysis, it is not necessary to address this 
component.\1\
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    \1\ We have not considered changes to Degussa-AJ's customer base 
in making our determination because: (1) any such changes do not 
have a substantive bearing on the company's factors of production; 
and (2) normally the Department considers neither an NME entity's 
home market customer base nor its home market sales transactions in 
making NME antidumping duty determinations. Furthermore, Degussa-AJ 
is merely a producer of subject merchandise and does not have its 
own separate antidumping duty rate. Were Degussa-AJ to sell subject 
merchandise to the United States, these entries would fall under the 
China-wide rate of 119.02 percent, not Ai Jian's rate. Changes to 
Degussa-AJ's customer base, therefore, would influence neither 
Degussa-AJ's nor Ai Jian's antidumping duty rate. For purposes of 
this determination, therefore, changes to Degussa-AJ's customer base 
do not have relevance.
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    In its April 1 and May 23, 2003, submissions, Degussa-AJ stated 
that there were no changes to its production facilities, production 
process, or product line since Degussa AG's investment in AJ Works.
    Degussa-AJ explained that AJ Works began to undertake two changes 
to its ammonium persulfate workshop in early 2002. Degussa-AJ has 
continued work on these improvements, which were ongoing as of the 
submission date of Degussa-AJ's last questionnaire response. 
Specifically, Degussa-AJ is expanding its production capacity for 
producing ammonium persulfate and, in addition, is working on a process 
improvement to decrease the yield loss of one of the factors of 
production, ammonium sulfate, which should reduce the consumption of 
this material input in the production process. With the exception of 
these two ongoing changes to its ammonium persulfate workshop, Degussa-
AJ has only evaluated, but not initiated, any other changes to its 
production facilities and production process.
    Additionally, Degussa-AJ has not determined when the evaluation of 
other improvements to its production facilities or production process 
will be complete, much less when actual changes might take place. 
Therefore, although there are two ongoing improvements to Degussa-AJ's 
production facilities and production process that should impact one of 
the factors of production (i.e., self-produced ammonium sulfate), 
nothing in the respondent's questionnaire responses indicates that 
there have been any other changes, as of the date of the most recent 
questionnaire response, to Degussa-AJ's factors of production for 
persulfates as a result of Degussa AG's investment in AJ Works.
    In addition to an examination of any changes to the production 
facility and production process, the Department

[[Page 58660]]

examined other changes at Degussa-AJ. Although there were significant 
changes to Degussa-AJ's board of directors as a result of Degussa AG's 
investment in AJ Works, the factory management team has remained 
largely intact, and those employees now serve in the same or similar 
capacities as before Degussa AG's investment in AJ Works. Finally, 
there have been no changes to Degussa-AJ's suppliers or supplier 
relationships since Degussa AG's investment in AJ Works. For further 
discussion, see the October 3, 2003, memorandum to James J. Jochum, 
Assistant Secretary for Import Administration, from Jeffrey May, Deputy 
Assistant Secretary, Group I, entitled ``Factors of Production Analysis 
With Respect to Merchandise Considered for Revocation.''
    Based on the information submitted by Ai Jian/Degussa, we 
preliminarily determine that Degussa-AJ's factors of production have 
not changed substantially since Degussa AG's investment in AJ Works. As 
a result, the Department will consider in any future revocation inquiry 
any administrative reviews in which Ai Jian procured its products 
exported to the United States from AJ Works. The current requirements 
for the cash deposit of estimated antidumping duties on the subject 
merchandise are not impacted by this determination.

Public Comment

    Interested parties may request a hearing within 14 days after the 
publication of this notice. Any hearing, if requested, will be held 30 
days after the publication of this notice, or the first workday 
thereafter. Interested parties may submit case briefs not later than 14 
days after the date of publication of this notice. Rebuttal briefs, 
limited to issues raised in the case briefs, may be filed not later 
than 19 days after the date of publication of this notice. Parties who 
submit comments or rebuttal briefs in this proceeding are requested to 
submit with the argument: (1) a statement of the issue, and (2) a brief 
summary of the argument (no longer than five pages, including 
footnotes). In accordance with 19 CFR 351.216(e), the Department will 
issue its final results of review within 270 days after the date on 
which the changed circumstances review was initiated (i.e., no later 
than November 18, 2003).
    This notice is published in accordance with sections 751(b)(1) and 
(d) and 777(i) of the Act, and with 19 CFR 351.221(c)(3).

    Dated: October 3, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-25771 Filed 10-9-03; 8:45 am]
BILLING CODE 3510-DS-S