[Federal Register Volume 73, Number 79 (Wednesday, April 23, 2008)]
[Notices]
[Pages 21906-21909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-8832]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

(A-570-925)


Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Sodium Nitrite from the People's Republic of China

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

EFFECTIVE DATE: April 23, 2008.
SUMMARY: The Department of Commerce (the Department) preliminarily 
determines that sodium nitrite from the People's Republic of China 
(PRC) is being, or is likely to be, sold in the United States at less 
than fair value (LTFV), as provided in section 733 of the Tariff Act of 
1930, as amended (the Act). The estimated dumping margin is shown in 
the ``Preliminary Determination'' section of this notice.

FOR FURTHER INFORMATION CONTACT: Magd Zalok, AD/CVD Operations, Office 
4, Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, DC, 20230; telephone: (202) 482-4162.

SUPPLEMENTARY INFORMATION:

Background

    On November 8, 2007, the Department received petitions concerning 
imports of sodium nitrite from the PRC and the Federal Republic of 
Germany filed in proper form by General Chemical LLC (petitioner). The 
Department initiated antidumping duty investigations of sodium nitrite 
from the above-mentioned countries on November 28, 2007. See Sodium 
Nitrite from the Federal Republic of Germany and the People's Republic 
of China: Initiation of Antidumping Duty Investigations, 72 FR 68563 
(December 5, 2007) (Initiation Notice).
    In the ``Respondent Selection'' section of the Initiation Notice, 
the Department stated that it intended to select respondents based on 
U.S. Customs and Border Protection (CBP) data. On the date of 
publication of the Initiation Notice, the Department released to 
parties under an Administrative Protective Order (APO), the CBP data 
obtained for respondent selection purposes. On December 12, 2007, the 
petitioner submitted comments regarding respondent selection, urging 
the Department to select as mandatory respondents, two PRC exporters 
who accounted for the majority of the sodium nitrite imported into the 
United States from the PRC during the period of investigation (POI). 
The Department did not receive any other comments from interested 
parties concerning respondent selection.
    In order to identify the universe of potential respondents for 
purposes of this investigation, the Department analyzed information 
obtained from the petition, CBP, and its own research. The petition 
identified 92 exporters and producers of sodium nitrite from the PRC. 
The Department obtained public information for two exporters and/or 
producers of the subject merchandise that are identified in the CBP 
data, Qingdao Hengyuan Chemical Co., Ltd. (Qingdao), and Hualong 
Ammonium Nitrate Company Ltd. (Hualong). The Department determined that 
Qingdao and Hualong were the appropriate respondents in this 
investigation because they represent all publicly identified PRC 
exporters of subject merchandise during the POI. On December 31, 2007, 
the Department selected Qingdao and Hualong as mandatory respondents. 
See Memorandum regarding ``Identification of Respondents in the 
Antidumping Investigation of Sodium Nitrite from the People's Republic 
of China,'' dated December 31, 2007 (Respondent Selection Memorandum).
    On December 26, 2007, the International Trade Commission (ITC) 
preliminarily determined that there is a reasonable indication that an 
industry in the United States is materially injured by reason of 
imports of sodium nitrite from Germany and the PRC. See Sodium Nitrite 
from China and Germany, 73 FR 2278 (January 14, 2008).

[[Page 21907]]

    On January 3, 2008, the Department issued Sections A through D of 
its antidumping duty questionnaire to Qingdao and Hualong via DHL and 
FedEx express courier services. The tracking information obtained from 
DHL and FedEx indicates that Qingdao and Hualong received the 
Department's questionnaire on January 7 and 9, 2008, respectively. See 
Memorandum regarding ``Lack of Response to the Department of Commerce's 
Questionnaire'' dated February 25, 2008 at Attachment I (Lack of 
Response Memorandum). In the cover letter to the questionnaire, the 
Department requested that Qingdao and Hualong, as mandatory 
respondents, submit a response to Section A, and a combined response to 
sections C and D of the questionnaire, by January 24, 2008, and 
February 11, 2008, respectively. Further, on January 15, 2008, the 
Department issued a letter to both Qingdao and Hualong, instructing 
them to use, for reporting purposes, certain physical characteristics 
that were identified in an attachment to the letter. The tracking 
information that we obtained from FedEx and DHL indicates that Qingdao 
and Hualong received the letter on January 18 and 22, 2008, 
respectively. See Lack of Response Memorandum at Attachment II. Qingdao 
and Hualong failed to respond to the Department's questionnaire.

Period of Investigation

    The POI is April 1, 2007, through September 30, 2007. See 19 CFR 
351.204(b)(1).

Scope of the Investigation

    The merchandise covered by this investigation is sodium nitrite in 
any form, at any purity level. In addition, the sodium nitrite covered 
by this investigation may or may not contain an anti-caking agent. 
Examples of names commonly used to reference sodium nitrite are nitrous 
acid, sodium salt, anti-rust, diazotizing salts, erinitrit, and 
filmerine. The chemical composition of sodium nitrite is NaNO2 and it 
is generally classified under subheading 2834.10.1000 of the Harmonized 
Tariff Schedule of the United States (HTSUS). The American Chemical 
Society Chemical Abstract Service (CAS) has assigned the name ``sodium 
nitrite'' to sodium nitrite. The CAS registry number is 7632-00-0.
    While the HTSUS subheading, CAS registry number, and CAS name are 
provided for convenience and customs purposes, the written description 
of the scope of this investigation is dispositive.

Non-Market-Economy (``NME'') Treatment

    The Department considers the PRC to be an NME country. In 
accordance with section 771(18)(C)(i) of the Act, any determination 
that a country is an NME country shall remain in effect until revoked 
by the administering authority. See Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From the People's Republic of China: 
Preliminary Results of 2001-2002 Administrative Review and Partial 
Rescission of Review, 68 FR 7500 (February 14, 2003) (unchanged in 
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, 
from the People's Republic of China: Final Results of 2001-2002 
Administrative Review and Partial Rescission of Review, 68 FR 70488 
(December 18, 2003)). The Department has not revoked the PRC's status 
as an NME country. Therefore, in this preliminary determination, we 
have treated the PRC as an NME country and applied our NME methodology.

Separate Rates

    In proceedings involving NME countries, the Department has a 
rebuttable presumption that all companies within the country are 
subject to government control and thus should be assessed a single 
antidumping duty rate. It is the Department's policy to assign all 
exporters of merchandise subject to investigation involving 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. 
Exporters must demonstrate the absence of both de jure and de facto 
government control over export activities, under a test developed by 
the Department and described in the Notice of Final Determination of 
Sales at Less Than Fair Value: Sparklers from the People's Republic of 
China, 56 FR 20588 (May 6, 1991), and 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).
    No party filed separate rate information in this investigation. 
Absent separate rate information, the Department has presumed that all 
companies within the PRC, exporting the subject merchandise (including 
Qingdao and Hualong), are subject to government control and thus are 
part of the PRC-wide entity and should be assessed a single, China-
wide, antidumping duty rate.

The PRC-Wide Entity - Use of Facts Available

    Section 776(a)(2) of the Act provides that, (1) if an interested 
party withholds information requested by the administering authority, 
(2) fails to provide such information by the deadlines for submission 
of the information and in the form or manner requested, subject to 
subsections (c)(1) and (e) of section 782, (3) significantly impedes a 
proceeding under this title, or (4) provides such information but the 
information cannot be verified as provided in 782(i), the administering 
authority shall use, subject to section 782(d) of the Act, facts 
otherwise available in reaching the applicable determination. Section 
782(d) of the Act provides that, if the administering authority 
determines that a response to a request for information does not comply 
with the request, the administering authority shall promptly inform the 
responding party and provide an opportunity to remedy the deficient 
submission. Section 782(e) of the Act states further that 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.
    Because Qingdao and Hualong are part of the PRC-wide entity, and 
they withheld information that is required by the Department to 
calculate dumping margins, the Department has concluded that it is 
appropriate to base the PRC-wide entity's dumping margin on facts 
available, pursuant to section 776(a)(2)(A)-(C) of the Act.

Application of Adverse Inferences

    According to section 776(b) of the Act, if the Department finds 
that an interested party failed to cooperate by not acting to the best 
of its ability to comply with requests for information, the Department 
may use an inference that is adverse to the interests of that party in 
selecting from the facts otherwise available. See, e.g., Notice of 
Final Results of Antidumping Duty Administrative Review: Stainless 
Steel Bar from India, 70 FR 54023, 54025-54026 (September 13, 2005); 
and Notice of Final Determination of Sales at Less Than Fair Value and 
Final Negative Critical Circumstances: Carbon and

[[Page 21908]]

Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-55796 
(August 30, 2002). It is the Department's practice to apply adverse 
inferences to ensure that the party does not obtain a more favorable 
result by failing to cooperate than if it had cooperated fully. See , 
e.g., id. Furthermore, ``affirmative evidence of bad faith on the part 
of a respondent is not required before the Department may make an 
adverse inference.'' See Antidumping Duties; Countervailing Duties, 62 
FR 27296, 27340 (May 19, 1997); see also Nippon Steel Corp. v. United 
States, 337 F.3d 1373, 1382-83 (Fed. Cir. 2003); Certain Polyester 
Staple Fiber from Korea: Final Results of the 2005-2006 Antidumping 
Duty Administrative Review, 72 FR 69663, 69664 (December 10, 2007).
    Although the Department's antidumping duty questionnaire stated 
that failure to comply with a request for information may result in the 
Department using ``information that is adverse to your interest'' in 
conducting its analysis, Qingdao and Hualong failed to respond to the 
questionnaire. This constitutes a failure to cooperate to the best of 
their abilities to comply with a request for information by the 
Department within the meaning of section 776(b) of the Act. Because 
these companies did not provide the information requested, section 
782(d) and (e) of the Act are not applicable. Based on the above, the 
Department has preliminarily determined that the PRC-wide entity, which 
includes Qingdao and Hualong, failed to cooperate to the best of its 
ability and, therefore, in selecting from among the facts otherwise 
available, an adverse inference is warranted. See, e.g., Notice of 
Final Determination of Sales at Less Than Fair Value: Circular Seamless 
Stainless Steel Hollow Products From Japan, 65 FR 42985, 42986 (July 
12, 2000) (the Department applied total adverse facts available because 
the respondent failed to respond to the antidumping questionnaire).

Selection of Information Used as Facts Available

    When the Department applies adverse facts available because a 
respondent failed to cooperate by not acting to the best of its ability 
to comply with a request for information, section 776(b) of the Act 
authorizes the Department to rely on information derived from the 
petition, a final determination, a previous administrative review, or 
other information placed on the record. See also 19 CFR 351.308(c); 
Statement of Administrative Action Accompanying the Uruguay Round 
Agreements Act, H.R. Rep. No. 103-316 at 868-71, (1994), reprinted in 
1994 U.S.C.C.A.N. 4040, 4198-99. It is the Department's practice to use 
the highest rate from the petition in an investigation when a 
respondent fails to act to the best of its ability to provide the 
necessary information. See, e.g., Notice of Preliminary Determination 
of Sales at Less Than Fair Value and Postponement of Final 
Determination: Purified Carboxymethylcellulose From Finland, 69 FR 
77216, 77218-19 (December 27, 2004) (unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value: Purified 
Carboxymethylcellulose From Finland, 70 FR 28279 (May 17, 2005)). 
Therefore, because an adverse inference is warranted, we have assigned 
the PRC-wide entity, including Qingdao and Hualong, a dumping margin of 
190.74 percent, the highest margin from the petition, as revised by the 
Department,. See Initiation Notice 72 FR at 68567.
    When the Department relies upon secondary information, it must ``to 
the extent practicable, corroborate that information from independent 
sources that are reasonably at [the Department's] disposal.'' See 
section 776(c) of the Act. To corroborate the initiation dumping 
margins for use as adverse facts available, to the extent appropriate, 
where information was available, we revisited our pre-initiation 
analysis of the adequacy and accuracy of the information in the 
petition. See Initiation Checklist. In our analysis, we examined 
evidence supporting the calculations in the petition to determine the 
probative value of the petition margins for use as an adverse facts 
available rate. We also examined the key elements of the export-price 
and normal-value calculations used in the petition to derive dumping 
margins. Further, we examined information in the petition, and its 
supplements, that came from various independent sources which 
corroborates key elements of the export-price and normal-value 
calculations that were used to derive the estimated dumping margins in 
the petition. See Initiation Notice. We received no comments as to the 
relevance or probative value of this information. Based on the 
foregoing, the Department has determined that the information provided 
by independent sources that was included in the petition, as revised by 
the Department, corroborates the 190.74 percent rate, to the extent 
practicable. Therefore, the Department finds that the rates derived 
from the petition for initiation purposes, are reliable for purposes of 
calculating a rate based on adverse inferences.

Preliminary Determination

    The weighted-average dumping margin is as follows:

------------------------------------------------------------------------
                Manufacturer/exporter                  Margin (percent)
------------------------------------------------------------------------
China-Wide Rate.....................................              190.74
------------------------------------------------------------------------

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
CBP to suspend liquidation of all entries of sodium nitrite from the 
PRC, as described in the ``Scope of the Investigation'' section of this 
notice, that are entered, or withdrawn from warehouse, for consumption 
on or after the date of publication of this notice in the Federal 
Register. We will instruct CBP to require a cash deposit or the posting 
of a bond equal to the weighted-average dumping margin indicated in the 
chart above. The suspension-of-liquidation will remain in effect until 
further notice.

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of the Department's preliminary affirmative determination. Under 
section 735(b)(2) of the Act, if the Department's final determination 
is affirmative, the ITC will determine whether the domestic industry in 
the United States is materially injured, or threatened with material 
injury, by reason of imports of the subject merchandise, or sales (or 
the likelihood of sales) for importation of the subject merchandise 
within 45 days of our final determination.

Public Comment

    Case briefs or other written comments on the preliminary 
determination may be submitted to the Assistant Secretary for Import 
Administration no later than 30 days after the date of publication of 
this preliminary determination. 19 CFR 351.309(c)(1)(i). Rebuttal 
briefs, the content of which is limited to the issues raised in the 
case briefs, must be filed within five days from the deadline for the 
submission of case briefs. 19 CFR 351.309(d)(1) and (2). A list of 
authorities used, a table of contents, and an executive summary of 
issues should accompany any briefs submitted to the Department. Id. 
Executive summaries should be limited to five pages total, including 
footnotes. Id. Further, we request that parties submitting briefs and 
rebuttal briefs provide the Department with an electronic copy of the 
public version of such briefs.
    In accordance with section 774 of the Act, the Department will hold 
a public hearing, if requested, to afford interested

[[Page 21909]]

parties an opportunity to comment on arguments raised in case and 
rebuttal briefs. If a request for a hearing is made in this 
investigation, the hearing will tentatively be held three days after 
the deadline for submitting rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 
20230, at a time and in a room to be determined. Parties should confirm 
by telephone, the date, time, and location of the hearing 48 hours 
before the scheduled date. Interested parties who wish to request a 
hearing, or to participate in a hearing if one is requested, must 
submit a written request to the Assistant Secretary for Import 
Administration, U.S. Department of Commerce, Room 1870, within 30 days 
of the publication of this notice. 19 CFR 351.310(c). Requests should 
contain: (1) the party's name, address, and telephone number; (2) the 
number of participants; and (3) a list of the issues to be discussed. 
At the hearing, oral presentations will be limited to issues raised in 
the briefs. Id.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: April 16, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E8-8832 Filed 4-22-08; 8:45 am]
BILLING CODE 3510-DS-S