[Federal Register Volume 73, Number 23 (Monday, February 4, 2008)]
[Notices]
[Pages 6479-6482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1971]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-908]


Final Determination of Sales at Less Than Fair Value: Sodium 
Hexametaphosphate From the People's Republic of China

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

DATES: Effective Date: February 4, 2008.

SUMMARY: On September 14, 2007, the Department of Commerce (the 
``Department'') published its preliminary determination of sales at 
less than fair value (``LTFV'') in the antidumping investigation of 
sodium hexametaphosphate (``SHMP'') from the People's Republic of China 
(``PRC''). The period of investigation (``POI'') is July 1, 2006, 
through December 31, 2006. We invited interested parties to comment on 
our preliminary determination of sales at LTFV. The final dumping 
margins for this investigation are listed in the ``Final Determination 
Margins'' section below.

FOR FURTHER INFORMATION CONTACT: Erin Begnal or Scot Fullerton, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-1442 or (202) 482-1386, respectively.

Final Determination

    We determine that SHMP from the PRC is being, or is likely to be, 
sold in the United States at LTFV as provided in section 735 of the 
Tariff Act of 1930, as amended (``the Act''). The estimated margins of 
sales at LTFV are shown in the ``Final Determination Margins'' section 
of this notice.

SUPPLEMENTARY INFORMATION: 

Case History

    The Department published its preliminary determination of sales at 
LTFV on September 14, 2007. See Preliminary Determination of Sales at 
Less Than Fair Value: Sodium Hexametaphosphate from the People's 
Republic of China, 72 FR 52544 (September 14, 2007) (``Preliminary 
Determination'').
    On September 11, 2007, Hubei Xingfa Chemicals Group (``Hubei 
Xingfa'') requested a 60-day extension of the final determination. On 
September 28, 2007, the Department published the postponement of the 
final determination. See Postponement of Final Determination of 
Antidumping Duty Investigation: Sodium Hexametaphosphate from the 
People's Republic of China, 72 FR 55176 (September 28, 2007). On 
September 28, 2007, Hubei Xingfa withdrew from participating in the 
investigation.\1\
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    \1\ See Letter from Greenberg Traurig to the Department of 
Commerce, regarding ``Sodium Hexametaphosphate from the People's 
Republic of China: Withdrawal from Participation,'' dated September 
28, 2007 (``Hubei Xingfa Withdrawal Letter'').
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    On September 17, 2007, the Department received an allegation from 
Petitioners that the Department made clerical errors in its Preliminary 
Determination.\2\ On October 25, 2007, the Department found that it had 
made a clerical error with regard to its preliminary determination 
calculation for Hubei Xingfa, but found that the error was not 
``significant'' to warrant amending the Preliminary Determination.\3\
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    \2\ See Letter from Williams Mullen to the Department of 
Commerce, regarding ``Sodium Hexametaphosphate from China: Clerical 
Error Comments,'' dated September 17, 2007.
    \3\ See Memorandum to James C. Doyle, Director, AD/CVD 
Operations, Office 9 through Scot T. Fullerton, Program Manager, AD/
CVD Operations, Office 9, from Erin Begnal, Senior International 
Trade Analyst, AD/CVD Operations, Office 9, regarding ``Antidumping 
Duty Investigation of Sodium Hexametaphosphate from the People's 
Republic of China: Allegation of Ministerial Errors,'' dated October 
25, 2007 (``Ministerial Error Memo'').
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    We invited parties to comment on the Preliminary Determination. On 
November 19, 2007, the Petitioners \4\ filed a case brief.
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    \4\ ICL Performance Products, LP and Innophos, Inc.
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Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the ``Investigation of Sodium 
Hexametaphosphate from the People's Republic of China: Issues and 
Decision Memorandum,'' dated January 28, 2008, which is hereby adopted 
by this notice (``Issues and Decision Memorandum''). A list of the 
issues which parties raised and to which we respond in the Issues and 
Decision Memorandum is attached to this notice as an Appendix. The 
Issue and Decision Memorandum is a public document and is on file in 
the Central Records Unit (``CRU''), Main Commerce Building, Room B-099, 
and is accessible on the Web at http://www.trade.gov/ia. The paper copy 
and electronic version of the memorandum are identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of comments received, we have made changes in 
our margin calculations for the separate rate respondents. 
Additionally, because Hubei Xingfa refused to participate in 
verification, we determined to apply total adverse facts available 
(``AFA'') to Hubei Xingfa. As AFA, we found that Hubei Xingfa did not 
demonstrate that it was entitled to a separate rate, and is therefore 
part of the PRC entity. See Adverse Facts Available below.

Scope of Investigation

    The merchandise subject to this investigation is sodium 
hexametaphosphate (``SHMP''). SHMP is a water-soluble polyphosphate 
glass that consists of a distribution of polyphosphate chain lengths. 
It is a collection of sodium polyphosphate polymers built on repeating 
NaPO3 units. SHMP has a P2O5 content from 60 to 71 percent. Alternate 
names for SHMP include the following: Calgon; Calgon S; Glassy Sodium 
Phosphate; Sodium Polyphosphate, Glassy; Metaphosphoric Acid; Sodium 
Salt; Sodium Acid Metaphosphate; Graham's Salt; Sodium Hex; 
Polyphosphoric Acid, Sodium Salt; Glass H; Hexaphos; Sodaphos; 
Vitrafos; and BAC-N-FOS. SHMP is typically sold as a white powder or 
granule (crushed) and may also be sold in the form of sheets (glass) or 
as a liquid solution. It is imported under heading 2835.39.5000, HTSUS. 
It may also be imported as a blend or mixture under heading 
3824.90.3900, HTSUS. The American Chemical Society, Chemical Abstract 
Service (``CAS'') has assigned the name ``Polyphosphoric Acid, Sodium 
Salt'' to SHMP. The CAS registry number is 68915-31-1. However, SHMP is 
commonly identified by CAS No. 10124-56-8 in the market. For purposes 
of the investigation, the narrative description is dispositive, not the 
tariff heading, CAS registry number or CAS name.
    The product covered by this investigation includes SHMP in all 
grades, whether food grade or technical grade. The product covered by 
this investigation includes SHMP without regard to chain length i.e., 
whether regular or long chain. The product covered by this 
investigation includes SHMP without regard to physical form, whether 
glass, sheet, crushed, granule,

[[Page 6480]]

powder, fines, or other form, and whether or not in solution.
    However, the product covered by this investigation does not include 
SHMP when imported in a blend with other materials in which the SHMP 
accounts for less than 50 percent by volume of the finished product.

Scope Comments

    We have addressed comments regarding the Scope in our Issues and 
Decision Memorandum and have determined to revise the scope of this 
investigation. See Issues and Decision Memorandum at Comment 2.

Adverse Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information requested by the Department, (B) fails to 
provide such information by the deadline, or in the form or manner 
requested, (C) significantly impedes a proceeding, or (D) provides 
information that cannot be verified, the Department shall use, subject 
to sections 782(d) and (e) of the Act, facts otherwise available in 
reaching the applicable determination. Pursuant to section 782(e) of 
the Act, the Department shall not decline to consider submitted 
information if all of the following requirements are met: (1) The 
information is submitted by the established deadline; (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; and (5) the information can be used without 
undue difficulties. On September 28, 2007, subsequent to the 
Preliminary Determination and before the commencement of verification, 
counsel for Hubei Xingfa informed the Department that it would not 
continue its participation in the instant investigation. See Hubei 
Xingfa Withdrawal Letter dated September 28, 2007. Because Hubei Xingfa 
ceased participation in the instant investigation, the Department was 
not able to conduct its verification of Hubei Xingfa's responses. 
Verification is integral to the Department's analysis because it allows 
the Department to satisfy itself that it is relying upon accurate 
information and calculating dumping margins as accurately as possible. 
By failing to participate in verification, Hubei Xingfa prevented the 
Department from verifying its reported information, including separate 
rates information, and significantly impeded the proceeding. Moreover, 
by not permitting verification, Hubei Xingfa failed to demonstrate that 
it operates free of government control and is entitled to a separate 
rate. Therefore, we find the use of facts available, pursuant to 
sections 776(a)(2)(C) and (D), to be appropriate in determining the 
applicable rate for Hubei Xingfa.
    Section 776(b) of the Act authorizes the Department to use an 
adverse inference with respect to an interested party if the Department 
finds that the party failed to cooperate by not acting to the best of 
its ability to comply with a request for information. See, e.g., 
Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final 
Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-
20 (October 16, 1997); see also Crawfish Processors Alliance v. United 
States, 343 F. Supp.2d 1242, 1270-1271 (CIT 2004) (approving use of AFA 
when respondent refused to participate in verification). We find that 
Hubei Xingfa's late withdrawal from participation and refusal to 
participate in verification constitutes a failure to cooperate by not 
acting to the best of its ability to comply with a request from the 
Department. See section 776(b) of the Act. Therefore, pursuant to 
section 776(b) of the Act, we find that when selecting from among the 
facts available, an adverse inference is warranted. As AFA, due to its 
failure to demonstrate separateness, we have, as AFA, treated Hubei 
Xingfa as part of the PRC-wide entity and thus will receive the rate 
applicable to PRC-wide entity, which is 188.05 percent. See the 
sections entitled ``The PRC-Wide Rate'' and ``Corroboration,'' below, 
for a discussion of the selection and corroboration of the PRC-Wide 
rate.

Surrogate Country

    In the Preliminary Determination, we stated that we had selected 
India as the appropriate surrogate country to use in this investigation 
for the following reasons: (1) It is a significant producer of 
comparable merchandise; (2) it is at a similar level of economic 
development pursuant to 773(c)(4) of the Act; and (3) we have reliable 
data from India that we can use to value the factors of production. See 
Preliminary Determination. For the final determination, we received no 
comments and made no changes to our findings with respect to the 
selection of a surrogate country.

Separate Rates

    In proceedings involving non-market-economy (``NME'') countries, 
the Department begins with a rebuttable presumption that all companies 
within the country are subject to government control and, thus, should 
be assigned a single antidumping duty deposit rate. It is the 
Department's policy to assign all exporters of merchandise subject to 
an investigation in an NME country this single rate unless an exporter 
can demonstrate that it is sufficiently independent so as to be 
entitled to a separate rate. See 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 by Notice of 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''), and Section 351.107(d) of the Department's regulations.
    In the Preliminary Determination, we found that the separate rate 
applicants, Jiangyin Chengxing International Trading Co., Ltd. 
(``Chengxing'') and Sichuan Mianzhu Norwest Phosphate Chemical Company 
Limited (``Norwest''), demonstrated their eligibility for separate-rate 
status. For the final determination, we continue to find that the 
evidence placed on the record of this investigation by Chengxing and 
Norwest demonstrate both a de jure and de facto absence of government 
control, with respect to their respective exports of the merchandise 
under investigation, and, thus are eligible for separate rate status.
    In the Preliminary Determination, we assigned the rate for Hubei 
Xingfa, who was a cooperating respondent, as a separate rate to 
Chengxing and Norwest. However, we have found that Hubei Xingfa has not 
demonstrated entitlement to a separate rate for this final 
determination. As such, Hubei Xingfa will be assigned the PRC-wide 
rate, which is based on AFA. Normally the separate rate is determined 
based on the estimated weighted average dumping margins established for 
exporters and producers individually investigated, excluding de minimis 
margins or margins based entirely on AFA. See section 735(c)(5)(A). If, 
however, the estimated weighted average margins for all individually 
investigated respondents are de minimis or based entirely on AFA, the 
Department may use any reasonable method. See section 735(c)(5)(B). In 
this proceeding, because the rate for all individually investigated 
respondents is based on AFA, we have relied on information from the 
petition to determine a rate to be applied to the respondents that have 
demonstrated entitlement to a separate rate. See, e.g., Notice of Final 
Determination of Sales at Less Than Fair Value and Affirmative Final 
Determination of Critical

[[Page 6481]]

Circumstances: Glycine from Japan, 72 FR 67271 (November 28, 2007) 
(citing Notice of Final Determinations of Sales at Less Than Fair 
Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products 
From Argentina, Japan and Thailand, 65 FR 5520, 5527-28 (February 4, 
2000) and Notice of Final Determination of Sales at Less Than Fair 
Value: Stainless Steel Plate in Coil from Canada, 64 FR 15457 (March 
31, 1999)). Specifically, we have assigned an average of the margins 
calculated for purposes of initiation as the separate rate for the 
final determination. See Initiation of Antidumping Duty Investigation: 
Sodium Hexametaphosphate From the People's Republic of China, 72 FR 
9926 (March 6, 2007) (``Initiation Notice''). See also Memorandum to 
the File, from Erin Begnal, Senior International Trade Analyst, AD/CVD 
Operations, Office 9, regarding ``Calculation of the Separate Rate'' 
dated January 22, 2008.
    To corroborate the initiation margins for use as a separate rate, 
to the extent appropriate information was available, we reviewed the 
adequacy and accuracy of the information in the petition during our 
pre-initiation analysis. See Initiation Checklist. We examined evidence 
supporting the calculations in the petition to determine the probative 
value of the margins alleged in the petition for use as the separate 
rate. During our pre-initiation analysis, we examined the key elements 
of the export-price and normal-value calculations used in the petition 
to derive margins. Also, during our pre-initiation analysis, we 
examined information from various independent sources provided either 
in the petition or, based on our requests, in supplements to the 
petition, that corroborates key elements of the export-price and 
normal-value calculations used in the petition to derive estimated 
margins. We received no comments as to the relevance or probative value 
of this information. Therefore, the Department finds that the rates 
derived from the petition for purposes of initiation are reliable for 
purposes of calculating the separate rate. We determined in the 
Preliminary Determination that Yibin Tianyuan Group Co., Ltd. 
(``Tianyuan'') is not entitled to a separate rate. We received no 
comments on this issue and continue to find that Tianyuan is not 
entitled to a separate rate.

The PRC-Wide Rate

    In the Preliminary Determination, the Department found that certain 
companies and the PRC-wide entity did not respond to our requests for 
information. In the Preliminary Determination we treated these PRC 
producers/exporters as part of the PRC-wide entity because they did not 
demonstrate that they operate free of government control over their 
export activities. No additional information has been placed on the 
record with respect to these entities after the Preliminary 
Determination. The PRC-wide entity has not provided the Department with 
the requested information; therefore, pursuant to section 776(a)(2)(A) 
of the Act, the Department continues to find that the use of facts 
available is appropriate to determine the PRC-wide rate. Section 776(b) 
of the Act provides that, in selecting from among the facts otherwise 
available, the Department may employ an adverse inference if an 
interested party fails to cooperate by not acting to the best of its 
ability to comply with requests for information. See Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Flat-Rolled Carbon-Quality Steel Products from the Russian Federation, 
65 FR 5510, 5518 (February 4, 2000). See also, ``Statement of 
Administrative Action'' accompanying the URAA, H.R. Rep. No. 103-316, 
vol. 1, at 870 (1994) (``SAA''). We determined that, because the PRC-
wide entity did not respond to our request for information, it has 
failed to cooperate to the best of its ability. Therefore, the 
Department finds that, in selecting from among the facts otherwise 
available, an adverse inference is appropriate for the PRC-wide entity.
    Because we begin with the presumption that all companies within an 
NME country are subject to government control and because only the 
companies listed under the ``Final Determination Margins'' section 
below have overcome that presumption, we are applying a single 
antidumping rate--the PRC-wide rate--to all other exporters of subject 
merchandise from the PRC. Such companies did not demonstrate 
entitlement to a separate rate. See, e.g., Synthetic Indigo from the 
People's Republic of China: Notice of Final Determination of Sales at 
Less Than Fair Value, 65 FR 25706 (May 3, 2000). The PRC-wide rate 
applies to all entries of subject merchandise except for entries from 
the respondents which are listed in the ``Final Determination Margins'' 
section below.
    At the Preliminary Determination, we assigned to the PRC-wide 
entity the calculated margin for Hubei Xingfa, the highest rate 
calculated for any respondent in the investigation. For the final 
determination, as total AFA, we have assigned to the PRC-wide entity 
the rate of 188.05 percent, which is the rate based on the information 
supplied by Hubei Xingfa in the preliminary determination, with 
adjustments made for clerical errors. See Ministerial Error Memo. In 
selecting the AFA rate for the PRC-wide entity, we did not use the 
petition rates because we have an alternative that we find to be 
sufficiently adverse to effectuate the purpose of the AFA provision of 
the statute. See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From 
Brazil, 69 FR 76910, 76912 (December 23, 2004). See also, Notice of 
Final Determination of Sales at Less Than Fair Value: Carbon and 
Certain Alloy Steel Wire Rod From Moldova, 67 FR 55790 (August 30, 
2002) and accompanying Issues and Decision Memorandum at Comment 2 and 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Cold-Rolled Carbon Steel Flat Products From Venezuela, 67 FR 62119, 
62120 (October 3, 2002). We assigned the rate of 188.05 percent, which 
was based on information submitted by Hubei Xingfa in its questionnaire 
responses and database submissions, and remains on the record of this 
investigation.

Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information in using the facts otherwise available, it 
must, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. We have 
interpreted ``corroborate'' to mean that we will, to the extent 
practicable, examine the reliability and relevance of the information 
submitted. See Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel 
Products From Brazil: Notice of Final Determination of Sales at Less 
Than Fair Value, 65 FR 5554, 5568 (February 4, 2000); See, e.g., 
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). Because 
the AFA rate is based on information provided to us by a respondent to 
this investigation, it is not considered to be secondary information, 
and therefore, needs not be corroborated. We conclude that this data, 
although unverified, continues to be the best information reasonably 
available to us to effectuate the purpose of AFA.

[[Page 6482]]

Final Determination Margins

    We determine that the following percentage weighted-average margins 
exist for the POI:

                  Sodium Hexametaphosphate From the PRC
------------------------------------------------------------------------
                                                             Weighted-
                  Manufacturer/exporter                   average margin
                                                             (percent)
------------------------------------------------------------------------
Jiangyin Chengxing International Trading Co., Ltd.......           92.02
Sichuan Mianzhu Norwest Phosphate Chemical Company                 92.02
 Limited................................................
PRC-Wide Rate (including Yibin Tianyuan Group Co., Ltd.,          188.05
 Mianyang Aostar Phosphorous Chemical Industry Co.,
 Ltd., and Hubei Xingfa Chemicals Group Co., Ltd. ).....
------------------------------------------------------------------------

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing U.S. Customs and Border Protection (``CBP'') to continue to 
suspend liquidation of all imports of subject merchandise that are 
entered or withdrawn from warehouse, for consumption on or after 
September 14, 2007, the date of publication of the preliminary 
determination in the Federal Register. We will instruct CBP to continue 
to require a cash deposit or the posting of a bond for all companies 
based on the estimated weighted-average dumping margins shown above. 
The suspension of liquidation instructions will remain in effect until 
further notice.

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our final determination of 
sales at LTFV. As our final determination is affirmative, in accordance 
with section 735(b)(2) of the Act, within 45 days the ITC will 
determine whether the domestic industry in the United States is 
materially injured, or threatened with material injury, by reason of 
imports or sales (or the likelihood of sales) for importation of the 
subject merchandise. If the ITC determines that material injury or 
threat of material injury does not exist, the proceeding will be 
terminated and all securities posted will be refunded or canceled. If 
the ITC determines that such injury does exist, the Department will 
issue an antidumping duty order directing CBP to assess antidumping 
duties on all imports of the subject merchandise entered, or withdrawn 
from warehouse, for consumption on or after the effective date of the 
suspension of liquidation.

Notification Regarding APO

    This notice also serves as a reminder to the parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 351.305. Timely notification of return or 
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulations and the 
terms of an APO is a sanctionable violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: January 28, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.

Appendix

Comment 1: Scope Revision
Comment 2: Basis for the Final Determination

[FR Doc. E8-1971 Filed 2-1-08; 8:45 am]
BILLING CODE 3510-DS-P