[Federal Register Volume 68, Number 215 (Thursday, November 6, 2003)]
[Notices]
[Pages 62767-62770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27974]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-852]


Creatine Monohydrate From the People's Republic of China: 
Preliminary Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce is currently conducting an 
administrative review of the antidumping duty order on creatine 
monohydrate from the People's Republic of China. The period of review 
is February 1, 2002, through January 31, 2003. This review covers 
imports of subject merchandise from one producer/exporter.
    We preliminarily find that sales have not been made at less than 
normal value. If these preliminary results are adopted in our final 
results of review, we will instruct the U.S. Customs and Border 
Protection Service (``CBP'') to liquidate entries of creatine

[[Page 62768]]

monohydrate produced and exported by Suzhou Sanjian Nutrient and Health 
Products Co., Ltd., without regard to antidumping duties.
    We invite interested parties to comment on these preliminary 
results. We will issue the final results no later than 120 days from 
the date of publication of this notice.

EFFECTIVE DATE: November 6, 2003.

FOR FURTHER INFORMATION CONTACT: Blanche Ziv, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-4207.

SUPPLEMENTARY INFORMATION:

Background

    On February 4, 2000, the Department published an antidumping order 
on creatine monohydrate from the People's Republic of China (``PRC''). 
See Notice of Antidumping Duty Order: Creatine Monohydrate from the 
People's Republic of China, 65 FR 5583 (February 4, 2000). On February 
3, 2003, the Department published in the Federal Register an 
Antidumping or Countervailing Duty Order, Finding, or Suspended 
Investigation; Opportunity to Request Administrative Review, 68 FR 5272 
(February 3, 2003).
    On February 28, 2003, in accordance with 19 CFR 351.213(b), a 
manufacturer/exporter of the subject merchandise, Suzhou Sanjian 
Nutrient & Health Products Co., Ltd. (``Sanjian''), requested that the 
Department conduct an administrative review of this order. On March 25, 
2003, we published a notice of initiation of this review. See 
Initiation of Antidumping and Countervailing Duty Administrative 
Reviews and Requests for Revocations in Part, 68 FR 14394 (March 25, 
2003). The period of this review (``POR'') is February 1, 2002, through 
January 31, 2003.
    On April 14, 2003, we issued an antidumping questionnaire to 
Sanjian. We issued a supplemental questionnaire on July 18, 2003. We 
received responses to the original and supplemental questionnaires on 
May 21 and August 1, 2003, respectively.

Scope of the Review

    Imports covered by this review are creatine monohydrate, which is 
commonly referred to as ``creatine.'' The chemical name for creatine 
monohydrate is N-(aminoiminomethyl)-N-methylgycine monohydrate. The 
Chemical Abstracts Service (``CAS'') registry number for this product 
is 6020-87-7. Creatine monohydrate in its pure form is a white, 
tasteless, odorless powder, that is a naturally occurring metabolite 
found in muscle tissue. Creatine monohydrate is provided for in 
subheading 2925.20.90 of the Harmonized Tariff Schedule of the United 
States (``HTSUS''). Although the HTSUS subheading and the CAS registry 
number are provided for convenience and customs purposes, the written 
description of the merchandise under review is dispositive.

Separate Rates

    The Department has treated the PRC as a nonmarket economy (``NME'') 
country in all previous antidumping cases.  See, e.g., Notice of Final 
Determination of Sales at Less than Fair Value: Refined Brown Aluminum 
Oxide (Otherwise known as Refined Brown Artificial Corundum or Brown 
Fused Alumina) from the People's Republic of China, 68 FR 55589 
(September 26, 2003). It is the Department's standard policy to assign 
all exporters of the merchandise subject to review in NME countries a 
single rate unless an exporter can demonstrate an absence of government 
control, both in law (de jure) and in fact (de facto), 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''). In this review, the sole 
respondent, Sanjian, is a PRC company; therefore, a separate rates 
analysis is necessary to determine whether its export activities are 
independent of government control.

Absence of De Jure Control

    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, 
56 FR at 20589.

Absence of De Facto Control

    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, 59 FR at 22587; see also 
Notice of Final Determination of Sales at Less Than Fair Value: 
Furfuryl Alcohol from the People's Republic of China, 60 FR 22544, 
22545 (May 8, 1995) (``Furfuryl Alcohol'').
    In the Notice of Final Determination of Sales at Less Than Fair 
Value: Creatine Monohydrate from the People's Republic of China, 64 FR 
71104, 71105 (December 20, 1999) (``LTFV Investigation''), we 
determined that there was de jure and de facto absence of government 
control of Suzhou Sanjian Fine Chemical Co. Ltd.''s (``Suzhou 
Chemical'') export activities and determined that Suzhou Chemical 
warranted a company-specific dumping margin. On April 18, 2003, we 
determined that Sanjian was the successor-in-interest to Suzhou 
Chemical. See Creatine Monohydrate from the People's Republic of China: 
Final Results of Changed Circumstances Review, 68 FR 19189 (April 18, 
2003) (``Changed Circumstances Review''). For the POR, Sanjian 
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 
the Changed Circumstances Review, and Sanjian continues to demonstrate 
an absence of government control, both in law and in fact, with respect 
to its exports, in accordance with the criteria identified in 
Sparklers, Silicon Carbide, and Furfuryl Alcohol.

Export Price

    For U.S. sales made by Sanjian, we calculated export price 
(``EP''), in accordance with section 772(a) of the Tariff Act of 1930, 
as amended (``the Act''), because the subject merchandise was sold to 
unaffiliated purchasers in the United States prior to importation into 
the United States and the facts did not otherwise warrant use of 
constructed export price.
    We calculated EP based on the price to unaffiliated purchasers in 
the United States. In accordance with section 772(c) of the Act, as 
appropriate, we deducted from the starting price foreign inland 
freight, international freight, marine insurance, U.S. inland freight,

[[Page 62769]]

U.S. customs duties, and other U.S. transportation expenses. We valued 
the deductions for foreign inland freight using surrogate data based on 
Indian freight costs. We selected India as the surrogate country for 
the reasons explained in the ``Normal Value'' section of this notice, 
below. Because the respondent used a market-economy shipper for more 
than an insignificant portion of its sales and paid for the shipping in 
a market-economy currency, we used the average price paid by that 
respondent to the market economy shipper to value international freight 
for all of its sales. See the ``Factors of Production Valuation 
Memorandum'' dated October 31, 2003 (``FOP memo''); See also Tapered 
Roller Bearings and Parts Thereof, Finished and Unfinished, from the 
People's Republic of China; Preliminary Results of 2000-2001 
Administrative Review, Partial Rescission of Review, and Notice of 
Intent to Revoke Order, in Part, 67 FR 45451, 45453 (July 9, 2002).

Normal Value

    Section 773(c)(1) of the Act provides that the Department shall 
determine the 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 (``CV'') 
under section 773(a) of the Act.
    As discussed in the separate rates section, the Department 
considers the PRC to be an NME country. The Department has treated the 
PRC as an NME country in all previous antidumping proceedings. 
Furthermore, available information does not permit the calculation of 
NV using home-market prices, third-country prices, or CV under section 
773(a) of the Act. In accordance with section 771(18)(C)(i) of the Act, 
any determination that a foreign country is an NME country shall remain 
in effect until revoked by the administering authority. We have no 
evidence suggesting that this determination should be changed. 
Therefore, we treated the PRC as an NME country for purposes of this 
review and calculated NV by valuing the factors of production in a 
surrogate country.
    Section 773(c)(4) of the Act requires the Department to value the 
NME producer's factors of production, to the extent possible, in one or 
more market economy countries that: (1) Are at a level of economic 
development comparable to that of the NME, and (2) are significant 
producers of comparable merchandise. The Department has determined that 
India, Pakistan, Indonesia, Sri Lanka, and the Philippines are 
countries comparable to the PRC in terms of overall economic 
development (see Memorandum from Jeff May, Director, Office of Policy, 
to Blanche Ziv, Import Compliance Specialist, Group 1, April 10, 2003). 
Although we have no information to indicate that India produces 
creatine, it does produce other products within the same customs 
heading, and it produces other fine chemicals with nutritional 
characteristics. We have therefore determined that India is a 
significant producer of comparable merchandise. Accordingly, we have 
calculated NV using Indian values for the PRC producer's factors of 
production.
    We have obtained and relied upon publicly available information, 
wherever possible. In many instances, we used the Monthly Statistics of 
the Foreign Trade of India; Volume II Imports (``MSFTI'' ) to value 
factors of production, energy inputs and packing materials. Consistent 
with the Final Determination of Sales at Less than Fair Value: Certain 
Automotive Replacement Glass Windshields From the People's Republic of 
China, 67 FR 6482 (February 12, 2002) and accompanying Issues and 
Decision Memorandum at Comment 1, we excluded import data reported in 
the MSFTI for Korea, Thailand and Indonesia in our surrogate value 
calculations. In addition to the MSFTI data, we used Indian domestic 
prices from Indian Chemical Weekly (``ICW'') to value certain chemical 
inputs. See the FOP memo.

Factors of Production

    In accordance with section 773(c) of the Act, we calculated NV 
based on factors of production reported by Sanjian during the POR. To 
calculate NV, the reported unit factor quantities were multiplied by 
publicly available Indian surrogate values.
    In selecting the surrogate values, we considered the quality, 
specificity, and contemporaneity of the data. As appropriate, we 
adjusted input prices to make them delivered prices. For the distances 
reported, we added to Indian CIF surrogate values a surrogate freight 
cost using the reported distances from the PRC port to the PRC factory, 
or from the domestic supplier to the factory. This adjustment is in 
accordance with the United States Court of Appeals for the Federal 
Circuit's (``CAFC'') decision in Sigma Corp. v. United States, 117 F. 
3d 1401, 1407-1408 (Fed.Cir. 1997). For those values not 
contemporaneous with the POR, we adjusted for inflation using the 
appropriate wholesale or producer price index published in the 
International Monetary Fund's International Financial Statistics.
    Sanjian reported that it purchased a portion of one its inputs, 
cyanamide, from a market economy supplier. Because we found that the 
amount of cyanamide purchased was insignificant, we did not use the 
price paid by Sanjian for this input, and instead used import values 
from the MSFTI. For further information, see the FOP memo.
    Labor: We valued labor using the method described in 19 CFR 
351.408(c)(3).
    Electricity and Coal: Consistent with our approach in Manganese 
Metal from the People's Republic of China; Final Results of Antidumping 
Duty Administrative Review, 66 FR 15076 (March 15, 2001) (``Manganese 
Metal''), we calculated the surrogate value for electricity based on 
electricity rate data reported by the International Energy Agency 
(``IEA''), 4th quarter 2001. For coal, we used import values from the 
MSFTI.
    Factory Overhead, Selling, General and Administrative Expenses 
(``SG&A''), and Profit: We based our calculation of factory overhead, 
SG&A, and profit on the 2002 financial statements of a producer of 
comparable merchandise, Riddhi Siddhi Gluco Boils Ltd. (``RSGB''), an 
Indian starch and dextrine producer.
    Inland Freight Rates: To value truck freight rates, we used an 
average of trucking rates quoted in ICW.
    Packing Materials: For packing materials we used import values from 
the MSFTI. For a complete analysis of surrogate values, see the FOP 
memo.

Preliminary Results of the Review

    We preliminarily find the weighted average dumping margin for 
Sanjian for the period February 1, 2002, through January 31, 2003, to 
be zero percent.
    Any interested party may request a hearing within 30 days of 
publication of this notice. See 19 CFR 351.310(c). Any hearing, if 
requested, will be held approximately 44 days after the date of 
publication of this notice, or the first working day thereafter. 
Interested parties may submit case briefs and/or written comments no 
later than 30 days after the date of publication of this notice. 
Rebuttal briefs and rebuttals to written comments, which must be 
limited to issues raised in such briefs or comments, may be filed not 
later than 37 days after the date of publication. Parties who submit 
arguments are requested to submit with the argument (1) a statement of 
the issue, (2) a brief summary of the argument, and (3) a table of 
authorities. The Department will issue a notice of final results of 
this

[[Page 62770]]

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 Rates and Cash Deposit Requirements

    Pursuant to 19 CFR 351.212(b), the Department calculates an 
assessment rate for each importer of the subject merchandise. Upon 
issuance of the final results of this administrative review, if any 
importer-specific assessment rates calculated in the final results are 
above de minimis (i.e., at or above 0.5 percent), the Department will 
issue appraisement instructions directly to the CBP to assess 
antidumping duties on appropriate entries by applying the assessment 
rate to the entered value of the merchandise. For assessment purposes, 
we calculate importer-specific assessment rates for the subject 
merchandise by aggregating the dumping duties due for all U.S. sales to 
each importer and dividing the amount by the total entered value of the 
sales to that importer.
    The following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of creatine entered, or withdrawn from warehouse, for 
consumption on or after the publication date of the final results of 
this administrative review, as provided for by section 751(a)(1) of the 
Act: (1) The cash deposit rate for Sanjian will be the rate established 
in the final results of this administrative review; (2) for a company 
previously found to be entitled to a separate rate and for which no 
review was requested, the cash deposit rate will be the rate 
established in the most recent review of that company; (3) the cash 
deposit rate for all other PRC exporters will be 153.70 percent, the 
PRC-wide rate established in the LTFV investigation; and (4) the cash 
deposit rate for a non-PRC exporter of subject merchandise from the PRC 
will be the rate applicable to the PRC exporter that supplied that 
exporter. These cash 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 this determination in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: October 31, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-27974 Filed 11-5-03; 8:45 am]
BILLING CODE 3510-DS-P