[Federal Register Volume 73, Number 46 (Friday, March 7, 2008)]
[Notices]
[Pages 12378-12382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-4529]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-806


Silicon Metal From the People's Republic of China: Preliminary 
Results and Preliminary Partial Rescission of Antidumping Duty 
Administrative Review

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

EFFECTIVE DATE: March 7, 2008.
SUMMARY: The Department of Commerce (``Department'') is currently 
conducting the 2006/2007 administrative review of the antidumping duty 
order on silicon metal from the People's Republic of China (``PRC''). 
The period of review (``POR'') for this administrative review is June 
1, 2006, through May 31, 2007. Fifteen companies reported that they had 
no shipments of subject merchandise during the POR; therefore, we are 
preliminarily rescinding our review of these companies. We 
preliminarily determine that three companies, Hunan Provincial Import & 
Export Group Co (PRC) (``Hunan Provincial''), Gather Hope Int'l Co., 
Ltd. (``Gather Hope''), and Alloychem Impex Corp. (``Alloychem''), have 
failed to cooperate by not acting to the best of their ability to 
cooperate with the Department's requests for information and, as a 
result, should be assigned a rate based on adverse facts available 
(``AFA''). If these preliminary results are adopted in our final 
results of these reviews, we will instruct U.S. Customs and Border 
Protection (``CBP'') to assess antidumping duties on entries of subject 
merchandise during the POR for which the importer-specific assessment 
rates are above de minimis.
    Interested parties are invited 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.

FOR FURTHER INFORMATION CONTACT: Scot Fullerton or Michael Quigley, AD/
CVD Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
1386 and (202) 482-4047, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On June 1, 2007, the Department published a notice of opportunity 
to request an administrative review of the antidumping duty order on 
silicon

[[Page 12379]]

metal from the PRC for the POR June 1, 2006, through May 31, 2007. See 
Antidumping or Countervailing Duty Order, Finding, or Suspended 
Investigation; Opportunity to Request Administrative Review, 72 FR 
61859 (June 1, 2007). On July 2, 2007, Globe Metallurgical Inc. 
(``Petitioner''), requested that the Department conduct an 
administrative review of 18 companies (collectively ``Respondents''). 
On August 6, 2007, the Department published a notice of initiation of 
an antidumping duty administrative review on silicon metal from the 
PRC, in which it initiated a review of these Respondents. See Notice of 
Initiation of the Administrative Review of the Antidumping Duty Order 
on Silicon Metal from the People's Republic of China (``Initiation 
Notice''), 72 FR 43597, (August 6, 2007).
    On August 24, 2007, the Department sent quantity and value 
(``Q&V'') questionnaires to the Respondents listed in the Initiation 
Notice. The Department sent a second round of Q&V questionnaires to 
companies that did not respond to the first round on September 17, 
2007. On October 22, 2007, the Department sent three additional Q&V 
questionnaires to companies which had not responded.
    In response to the Q&V questionnaires that the Department sent on 
August 24, 2007, the following seven companies replied that they had no 
shipments of subject merchandise to the United States during the POR: 
Jiangxi Gangyuan Silicon Industry (``Gangyuan''); MPM Silicones, LLC 
(``MPM United States''); GE Silicones Canada (``MPM Canada''); Global 
Minerals Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; and 
Carbonsi Mettalurgical Inc. In response to the Q&V questionnaires that 
the Department sent on September 17, 2007, the following three 
companies replied that they had no shipments of subject merchandise 
under review to the United States during the POR: Crown All 
Corporation; Ferro-Alliages & Mineraux Inc.; and Chemical & Alloy Inc. 
In response to the Q&V questionnaires that the Department sent on 
October 22, 2007, the following two companies replied that they had no 
shipments of subject merchandise under review to the United States 
during the POR: IMMECC Resources Inc. and Bomet (Canada) Inc.
    In addition to the 12 companies listed above which provided the 
Department with no-shipment responses, the Department was unable to 
find correct addresses for these three companies: Coldstone Metals Inc. 
(``Coldstone''); Global Minerals (Canada); and SeaView Trading. The 
Department's August 24, 2007, Q&V questionnaire to SeaView Trading was 
returned to the Department, and its August 24, 2007, Q&V questionnaire 
to Global Minerals Canada was ``undeliverable'' due to an ``incorrect 
address.'' The Department's August 24, 2007, Q&V questionnaire to 
Coldstone was delivered, but its September 17, 2007, Q&V questionnaire 
was ``undeliverable.'' Federal Express informed the Department that 
Coldstone had moved.
    For three other companies, the Department sent its Q&V 
questionnaire twice, received confirmation of their delivery, but 
received no response from the companies. Both Hunan Provincial and 
Gather Hope received the Q&V questionnaires the Department sent on 
August 24, 2007, and September 17, 2007. As for Alloychem, the August 
24, 2007, Q&V questionnaire was returned to the Department, but the 
Department sent this company the Q&V questionnaire again on both 
September 5, 2007, and October 22, 2007, and both of those mailings 
were successfully delivered.
    On October 3, 2007, Petitioner requested that the Department 
clarify discrepancies between the testimony of MPM United States and 
MPM Canada (collectively, ``MPM'') to the Foreign Trade Zone Board and 
documentation on the record of the 2005/2006 New Shipper Review of 
Gangyuan. On October 31, 2007, Petitioner also requested that the 
Department issue additional questions to MPM related to the possible 
transshipment of silicon metal. Similarly, on November 13, 2007, 
Petitioner submitted comments on the Q&V responses submitted by Ferro-
Alliages, Chemical and Alloy Inc., and Crown All Corporation, and 
requested that the Department request additional information from 
Ferro-Alliages regarding the source of the silicon metal that it 
exported to the United States and the ultimate disposition of the 
silicon metal that it imported into Canada from China.
    On November 27, 2007, the Department reviewed the requests made by 
Petitioner. The Department noted that Gangyuan, MPM United States, and 
MPM Canada have each filed no-shipment responses in this review, and 
this information has not been contradicted by CBP data for imports of 
subject merchandise during the POR. See Memorandum to David M. Spooner, 
Assistant Secretary for Import Administration, from Stephen J. Claeys, 
Deputy Assistant Secretary for Import Administration, regarding ``2006/
2007 Antidumping Duty Administrative Review of Silicon Metal from the 
People's Republic of China: Responses to Quantity and Value 
Questionnaire,'' dated November 27, 2007. On February 20, 2008, 
Petitioner repeated its November 13, 2007, request that the Department 
obtain additional information from Ferro-Alliages regarding the source 
of the silicon metal that it exported to the United States. In 
addition, Petitioner withdrew its request for review of Bomet (Canada) 
Inc., Carbonsi Metallurgical Inc., Chemical and Alloy Inc., Crown All 
Corp., Global Minerals (Canada), Global Minerals Corp., IMMECC 
Resources Inc., Lorbec Metals Ltd., SeaView Trading, and Transtrading 
House Ltd. Petitioner noted that although its withdrawal request was 
beyond the 90 days after the date of publication of the notice of 
initiation, the Department has discretion to extend this time limit if 
it decides that it is reasonable to do so.

Scope of the Order

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

Preliminary Partial Rescission of 2006/2007 Administrative Review

    Several companies indicated they did not export silicon metal to 
the United States during the POR. In order to corroborate these 
submissions, we reviewed PRC silicon metal shipment data maintained by 
CBP, and found no discrepancies with the statements made by these 
firms.
    Therefore, for the reasons mentioned above, we are preliminarily 
rescinding the administrative review with respect to these twelve 
companies: Gangyuan; MPM United States; MPM Canada; Global Minerals 
Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; Carbonsi 
Mettalurgical Inc.; Crown All Corporation; Ferro-Alliages & Mineraux 
Inc.; Chemical & Alloy Inc.; IMMECC

[[Page 12380]]

Resources Inc.; and Bomet (Canada) Inc. Each of these twelve companies 
reported having made no shipments of subject merchandise during the 
POR, and the Department found no information to indicate otherwise. 
With respect to Petitioner's February 20, 2008, withdrawal request for 
certain companies, as discussed above, we do not find any reasonable 
basis exists upon which to extend the time limit for withdrawal 
requests in this review.
    The Department also indicated that it was unable to directly serve 
three companies with its Q&V questionnaire. See Memorandum to the File 
from Kristina Horgan, Senior International Trade Analyst, AD/CVD 
Operations, Office 9, regarding ``Antidumping Duty Administrative 
Review of Silicon Metal from the People's Republic of China: Proof of 
Non-Delivery to Global Minerals (Canada) and SeaView Trading,'' dated 
November 9, 2007. See also Memorandum to the File from Michael Quigley, 
International Trade Analyst, AD/CVD Operations, Office 9, regarding 
``Antidumping Duty Administrative Review of Silicon Metal from the 
People's Republic of China: Record of Mailings to Coldstone Metals 
Inc.,'' dated November 20, 2007. Therefore, the Department 
preliminarily rescinds the review with respect to these companies, in 
accordance with our practice. See, e.g., Certain Steel Concrete 
Reinforcing Bars from Turkey: Preliminary results and Partial 
Rescission of Antidumping Duty Administrative Review, 71 FR 26455, 
26457 (May 5, 2006).

Facts Available

    For the reasons outlined below, we have applied total AFA to Hunan 
Provincial, Gather Hope, and Alloychem. Section 776(a)(2) of the Tariff 
Act of 1930, as amended (``Act'') provides that, if an interested 
party: (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 subject to sections 782(c)(1) and (e) 
of the Act; (C) significantly impedes a proceeding under the 
antidumping statute; or (D) provides such information but the 
information cannot be verified, the Department shall, subject to 
section 782(d) of the Act, use facts otherwise available in reaching 
the applicable determination. Section 782(d) of the Act provides that 
when the Department finds that a respondent has not complied with a 
request for information, the Department shall inform the respondent of 
the deficiency and allow them an opportunity to remedy or explain the 
deficiency.
    We find that Hunan Provincial, Gather Hope, and Alloychem have 
failed to provide information requested by the Department. Accordingly, 
we find it appropriate to apply facts otherwise available consistent 
with section 776(a)(2)(A).
    In addition, pursuant to section 776(b) of the Act, 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 information that is adverse to 
the interests of the party as facts otherwise available. Adverse 
inferences are appropriate ``to ensure that the party does not obtain a 
more favorable result by failing to cooperate than if it had cooperated 
fully.'' See Statement of Administrative Action (``SAA'') accompanying 
the Uruguay Round Agreements Act (``URAA''), H.R. Rep. No. 103-316, 
Vol. 1 (1994) at 870.
    The Department sent the Q&V questionnaire to Hunan Provincial, 
Gather Hope, and Alloychem twice. Evidence on the record confirms that 
the questionnaire was delivered to each of these parties on both 
occasions. Hunan Provincial, Gather Hope, and Alloychem, however, made 
no attempt to respond to the questionnaire. By not responding to the 
Department's Q&V questionnaire, Hunan Provincial, Gather Hope, and 
Alloychem failed to provide critical information to be used for the 
Department's respondent selection process. Under these circumstances, 
the Department finds that Hunan Provincial, Gather Hope, and Alloychem 
have failed to cooperate to the best of their ability. Accordingly, the 
Department finds it necessary, pursuant to section 776(b) of the Act, 
to use AFA as the basis for these preliminary results of review for 
Hunan Provincial, Gather Hope, and Alloychem.
    In addition, because the above-referenced companies did not submit 
a separate rate application or certification, the Department was unable 
to determine whether or not they qualified for a separate rate. 
Therefore, they are not eligible to receive a separate rate and will be 
part of the PRC-wide entity, subject to the PRC-wide rate.

Selection of AFA Rate

    In deciding which facts to use as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) authorize the Department to rely on 
information derived from (1) the petition, (2) a final determination in 
the less-than-fair-value (``LTFV'') investigation, (3) any previous 
review or determination, or (4) any information placed on the record. 
In reviews, the Department normally selects, as AFA, the highest rate 
on the record of any segment of the proceeding. See, e.g., Freshwater 
Crawfish Tail Meat from the People's Republic of China: Notice of Final 
Results of Antidumping Duty Administrative Review, 68 FR 19504, 19506 
(April 21, 2003). The Court of International Trade (``CIT'') and the 
Court of Appeals for the Federal Circuit have upheld the Department's 
practice in this regard. See Rhone Poulenc, Inc. v. United States, 899 
F.2d 1185, 1190 (Fed. Cir. 1990) (``Rhone Poulenc''); NSK Ltd. v. 
United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 
percent total AFA rate, the highest available dumping margin from a 
different respondent in the LTFV investigation), aff'd, 481 F.3d 1355 
(Fed. Cir. 2007); see also Shanghai Taoen International Trading Co., 
Ltd. v. United States, 360 F. Supp 2d 1339, 1348 (CIT 2005) (upholding 
a 223.01 percent total AFA rate, the highest available dumping margin 
from a different respondent in a previous administrative review); and 
Kompass Food Trading Int'l v. United States, 24 CIT 678, 689 (2000) 
(upholding a 51.16 percent total AFA rate, the highest available 
dumping margin from a different, fully cooperative respondent).
    The Department's practice when selecting an adverse rate from among 
the possible sources of information is to ensure that the margin is 
sufficiently adverse ``as to effectuate the purpose of the facts 
available role to induce respondents to provide the Department with 
complete and accurate information in a timely manner.'' See Static 
Random Access Memory Semiconductors from Taiwan; Final Determination of 
Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998). 
The Department's practice also ensures ``that the party does not obtain 
a more favorable result by failing to cooperate than if it had 
cooperated fully.'' See SAA at 870; see also Final Determination of 
Sales at Less than Fair Value: Certain Frozen and Canned Warmwater 
Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004); D&L Supply 
Co. v. United States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In 
choosing the appropriate balance between providing respondents with an 
incentive to respond accurately and imposing a rate that is reasonably 
related to the respondent's prior commercial activity, selecting the 
highest prior margin ``reflects a common sense inference that the 
highest prior margin is the most probative evidence of current margins, 
because, if it were not so, the importer, knowing of the rule,

[[Page 12381]]

would have produced current information showing the margin to be 
less.'' Rhone Poulenc, 899 F.2d at 1190. Consistent with the statute, 
court precedent, and its normal practice, the Department has assigned 
the rate of 139.49 percent, the highest rate on the record of any 
segment of the proceeding, to the PRC-wide entity, which includes Hunan 
Provincial, Gather Hope, and Alloychem, as AFA. See, e.g., Notice of 
Final Results of Antidumping Duty Administrative Review: Silicon Metal 
from the People's Republic of China, 68 FR 35383 (June 13, 2003) 
(``2001/2002 Silicon Metal Final Results''). As discussed further 
below, this rate has been corroborated.

Corroboration of Facts Available

    Section 776(c) of the Act requires that the Department corroborate, 
to the extent practicable, a figure which it applies as facts 
available. To be considered corroborated, information must be found to 
be both reliable and relevant. We are applying as AFA the highest rate 
from any segment of this administrative proceeding, which is the rate 
currently applicable to all exporters subject to the PRC-wide rate. The 
AFA rate in the current review (i.e., the PRC-wide rate of 139.49 
percent) represents the highest rate from the petition in the LTFV 
investigation. See Antidumping Duty Order: Silicon Metal From the 
People's Republic of China, 56 FR 26649 (June 10, 1991).
    To be considered corroborated, information must be found to be both 
reliable and relevant. Unlike other types of information, such as input 
costs or selling expenses, there are no independent sources for 
calculated dumping margins. The only sources for calculated margins are 
administrative determinations. The information upon which the AFA rate 
we are applying for the current review was corroborated most recently 
in the 2001/2002 administrative review of silicon metal from the PRC. 
See Silicon Metal from the People's Republic of China: Notice of 
Preliminary Results of Antidumping Duty Administrative Review, 68 FR 
11369 (March 10, 2003), unchanged in 2001/2002 Silicon Metal Final 
Results. Furthermore, no information has been presented in the current 
review that calls into question the reliability of this information. 
Thus, the Department finds that the information is reliable.
    With respect to the relevance aspect of corroboration, the 
Department will consider information reasonably at its disposal to 
determine whether a margin continues to have relevance. Where 
circumstances indicate that the selected margin is not appropriate as 
AFA, the Department will disregard the margin and determine an 
appropriate margin. For example, in Fresh Cut Flowers from Mexico; 
Final Results of Antidumping Administrative Review, 61 FR 6812, 6814 
(February 22, 1996), the Department disregarded the highest margin in 
that case as adverse best information available (the predecessor to 
facts available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. The information used in calculating this margin was based on 
sales and production data submitted by the petitioner in the LTFV 
investigation, together with the most appropriate surrogate value 
information available to the Department chosen from submissions by the 
parties in the LTFV investigation, as well as information gathered by 
the Department itself. Furthermore, the calculation of this margin was 
subject to comment from interested parties in the 2001/2002 
administrative review. As there is no information on the record of this 
review that demonstrates that this rate is not appropriately used as 
AFA, we determine that this rate has relevance.
    As the 139.49 percent rate is both reliable and relevant, we 
determine that it has probative value. Accordingly, we determine that 
the calculated rate of 139.49 percent, which is the current PRC-wide 
rate, is in accordance with the requirement of section 776(c) of the 
Act that secondary information be corroborated to the extent 
practicable (i.e., that it has probative value). We have assigned this 
AFA rate to exports of the subject merchandise by the PRC-wide entity.

Preliminary Results of Review

    We preliminarily determine that the following margin exists during 
the period June 1, 2006, through May 31, 2007:

------------------------------------------------------------------------
                   Silicon Metal from the PRC
----------------------------------------------------------------
PRC-Wide Entity\1\.............................................   139.49
------------------------------------------------------------------------
\1\ PRC-Wide Entity includes Hunan Provincial, Gather Hope and
  Alloychem.

    Any interested party may request a hearing within 30 days of 
publication of this notice. Interested parties who wish to request a 
hearing or to participate if one is requested, must submit a written 
request to the Assistant Secretary for Import Administration within 30 
days of the date of publication of this notice. Requests should 
contain: (1) the party's name, address, and telephone number; (2) the 
number of participants; and (3) a list of issues to be discussed. See 
19 CFR 351.310(c).
    Issues raised in the hearing will be limited to those raised in 
case and rebuttal briefs. Case briefs from interested parties may be 
submitted not later than 30 days of the date of publication of this 
notice, pursuant to 19 CFR 351.309(c). Rebuttal briefs, limited to 
issues raised in the case briefs, will be due five days later, pursuant 
to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in 
this proceeding are requested to submit with each argument (1) a 
statement of the issue and (2) a brief summary of the argument. Parties 
are also encouraged to provide a summary of the arguments not to exceed 
five pages and a table of statutes, regulations, and cases cited.
    The Department will issue the final results of this review, 
including the results of its analysis of issues raised in any such 
written briefs or at the hearing, if held, not later than 120 days 
after the date of publication of this notice.

Assessment Rates

    Pursuant to 19 CFR 351.212(b), the Department will determine, and 
CBP shall assess, antidumping duties on all appropriate entries. The 
Department intends to issue appropriate assessment instructions 
directly to CBP 15 days after the date of publication of the final 
results of this review. We will instruct CBP to assess antidumping 
duties on all appropriate entries covered by this review if any 
assessment rate calculated in the final results of this review is above 
de minimis. The final results of this review shall be the basis for the 
assessment of antidumping duties on entries of merchandise covered by 
the final results of this review and for future deposits of estimated 
duties, where applicable.

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 Hunan 
Provincial, Gather Hope, and Alloychem, the cash deposit rate will be 
established in the final results of this review; (2) for previously 
investigated or reviewed PRC and non-PRC exporters not listed above 
that have separate rates, the cash deposit rate will continue to be the 
exporter-specific rate published for the most recent period; (3) for 
all PRC exporters of subject merchandise which have not been found to 
be entitled to a

[[Page 12382]]

separate rate, the cash deposit rate will be the PRC-wide rate of 
139.49 percent; and (4) for all non-PRC exporters of subject 
merchandise which have not received their own rate, the cash deposit 
rate will be the rate applicable to the PRC exporters that supplied 
that non-PRC exporter. These deposit requirements, when imposed, shall 
remain in effect until further notice.

Notification to Importers

    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    This administrative review and notice are in accordance with 
sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.

    Dated: February 29, 2008.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.
[FR Doc. E8-4529 Filed 3-6-08; 8:45 am]
BILLING CODE 3510-DS-S