[Federal Register Volume 74, Number 152 (Monday, August 10, 2009)]
[Notices]
[Pages 39921-39928]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19096]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-849]
Certain Cut-to-Length Carbon Steel Plate From the People's
Republic of China: Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``Department'') is currently
conducting the 2007/2008 administrative review of the antidumping duty
order on Certain Cut-to-Length Carbon Steel Plate (``CTL Plate'') from
the People's Republic of China (``PRC''). The period of review
(``POR'') is November 1, 2007, through October 31, 2008. We have
preliminarily determined that Hunan Valin Xiangtan Iron & Steel Co.
Ltd. (``Valin Xiangtan'') did not make sales to the United States of
the subject merchandise at prices below normal value. Furthermore, we
are preliminarily rescinding the review with respect to Anshan Iron &
Steel Group (AISCO/Anshan International/Sincerely Asia Ltd.)
(``Anshan''), Baoshan (Bao/Baoshan International Trade Corp./Bao Steel
Metals Trading Corp., Shanghai Baosteel Group Corporation and Baoshan
Iron and Steel
[[Page 39922]]
Co., Ltd., Shanghai Pudong Steel & Iron Co.) (``Baoshan''), and
Baosteel Group. If these preliminary results are adopted in our final
results of this review, we will instruct U.S. Customs and Border
Protection (``CBP'') to assess antidumping duties on entries of subject
merchandise from the POR, for which the importer-specific assessment
rates are above de minimis.
Interested parties are invited to comment on these preliminary
results 45 days after the publication of this notice. See ``Preliminary
Results of Review'' section, below. We will issue the final results no
later than 120 days from the date of publication of this notice.
EFFECTIVE DATE: August 10, 2009.
FOR FURTHER INFORMATION CONTACT: Demitrios Kalogeropoulos and Trisha
Tran, AD/CVD Operations, Office 8, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
2623 and (202) 482-4852, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department received a timely request from two domestic
interested parties, Nucor Corporation (``Nucor'') and ArcelorMittal
USA, Inc. (``ArcelorMittal''), in accordance with 19 CFR 351.213(b),
for an administrative review of the antidumping duty order on CTL Plate
from the PRC for four companies: Anshan, Baoshan, Baosteel Group, and
Valin Xiangtan (collectively, ``Respondents''). On December 24, 2008,
the Department published a notice of initiation of an antidumping duty
administrative review (``AR'') on CTL Plate from the PRC, in which it
initiated a review of these Respondents. See Initiation of Antidumping
and Countervailing Duty Administrative Reviews and Request for
Revocation in Part, 73 FR 79055 (December 24, 2008) (``Initiation
Notice'').
On January 9, 2009, Valin Xiangtan reported that it had no exports
or sales of subject merchandise to the United States during the POR. On
January 12, 2009, Baoshan and Baosteel Group certified that they had no
sales of subject merchandise during the POR. On February 2, 2009,
Anshan certified that it did not have any exports, sales, or entries of
subject merchandise during the POR. On January 22, 2009, the Department
released CBP data for entries of the subject merchandise during the POR
under administrative protective order (``APO'') to all interested
parties having an APO. On March 18, 2009, ArcelorMittal withdrew its
review request for Anshan, Baoshan, and Baosteel Group. On April 9,
2009, the Department rescinded the November 1, 2006, through October
31, 2007, (``2006-2007 POR'') new shipper review (``NSR CTL Plate'') of
Valin Xiangtan pursuant to 351.214(j)(1) of the Department's
regulations, stating that we would review Valin Xiangtan's entry in the
current AR, because while Valin Xiangtan's sale was covered by the new
shipper review, the entry fell within the POR of the instant AR. See
Cut-to-Length Carbon Steel Plate from the People's Republic of China:
Notice of Rescission of Antidumping Duty New Shipper Review, 74 FR
15930 (April 8, 2009) (``NSR Rescission''). On April 24, 2009, the
Department provided all parties with the opportunity to transfer
certain information from the rescinded 2006-2007 NSR CTL Plate to the
instant AR. On May 6, 2009, Valin Xiangtan, Nucor, and IPSCO Steel
Inc., transferred certain documents from the NSR CTL Plate to the AR.
On May 7, 2009, the Department issued a Sections A and D supplemental
questionnaire to Valin Xiangtan. On May 15, 2009, Nucor and Valin
Xiangtan submitted new factual information. On May 21, 2009, we
requested comments on surrogate country selection. On May 22, 2009,
Nucor requested that the Department review Valin Xiangtan's entry using
information contemporaneous with the current AR. On May 26, 2009, Valin
Xiangtan provided rebuttal comments to Nucor's May 15, 2009 new factual
information submission. On June 4, 2009, Valin Xiangtan submitted
responses to the Department's Sections A and D supplemental
questionnaire regarding its sales during the 2006-2007 POR. On July 1,
2009, the Department issued a separate rate supplemental questionnaire
to Valin Xiangtan. On July 13, 2009, Valin Xiangtan submitted its
response to the separate rate supplemental questionnaire.
Partial Rescission of 2007/2008 Administrative Review
Pursuant to 19 CFR 351.213(d)(1), the Secretary will rescind an
administrative review, in whole or in part, if a party who requested
the review withdraws the request within 90 days of the date of
publication of notice of initiation of the requested review.
ArcelorMittal's request was submitted within the 90-day period, and
thus, is timely. Because ArcelorMittal's withdrawal of requests for
review is timely and because no other party requested a review of the
aforementioned companies, in accordance with 19 CFR 351.213(d)(1), we
are rescinding this review with respect to Anshan, Baoshan, and
Baosteel Group.
Collapsing of Affiliated Producers
After reviewing the record, we have determined not to collapse
Valin Xiangtan with any of its affiliates. We have determined that
record evidence does not support a finding that any of these affiliates
are producers of subject merchandise.\1\ Further, we have determined
that two of Valin Xiangtan's affiliates which do produce steel do not
own a rolling mill.\2\ Additionally, we find that VX's affiliates
produce steel products, such as wire rod, with production processes
that are dissimilar to Valin Xiangtan's production of the subject
merchandise. Thus, it would require substantial retooling to build a
rolling mill capable of producing subject merchandise. Accordingly, the
collapsing criteria under 19 CFR 351.401(f)(1) are not satisfied. In
determining whether there is a significant potential for manipulation,
as contemplated by 19 CFR 351.401(f)(2), the Department considers the
totality of the circumstances of the situation and may place more
reliance on some factors than others. In the instant case, because
Valin Xiangtan's affiliates do not produce subject merchandise and do
not have the capability to produce subject merchandise without a
substantial retooling, the totality of the circumstances here shows
that there is not a significant potential for the manipulation of price
or production. Therefore, for the preliminary results, we have not
collapsed Valin Xiangtan with its affiliates.
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\1\ See Valin Xiangtan's supplemental submission dated June 9,
2009, at Exhibits 2.1 and 2.2. See also Valin Xiangtan's October 17,
2008, supplemental response at 3-9.
\2\ See id. at 3 and 8.
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Period of Review
The POR is November 1, 2007, through October 31, 2008. Valin had
only one entry during this POR, and the sale associated with that entry
was made during the period November 1, 2006, through October 31, 2007.
Accordingly, after rescinding the NSR covering the 2006-2007 period,\3\
we requested that interested parties transfer all information relevant
to that sale from the record of the 2006-2007 NSR to the record of this
2007-2008 AR. Accordingly, when we issued supplemental questionnaires
in this AR, we requested information with respect to the 2006-2007
period, to reflect the data already on the record with respect to the
sale under review in the
[[Page 39923]]
administrative review. Nucor, in its May 22, 2009 submission, argued
that the data transferred from the 2006-2007 NSR CTL Plate was based on
older versions of the Department's questionnaire, in response to a NSR
questionnaire, as opposed to an AR questionnaire, and based on a
different POR. With respect to Section A of the Department's
questionnaire, Nucor was concerned that since Valin Xiangtan does not
already have separate rate status, the Department should not use the
prior information to determine Valin Xiangtan's separate rate
eligibility. In addition, for Section C of the Department's
questionnaire, Nucor argued that since Valin Xiangtan had no further
shipments to the United States during the current POR, it only need
update its answers where the AR questionnaire differs from the NSR
questionnaire. With respect to Section D, Nucor argued that the
Department has few exceptions in its practice where a respondent may
report factors of production (``FOP'') data from a prior period, and
avers that the Department has historically required that respondents
report market-economy inputs and by-product offsets for the current
POR.
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\3\ See NSR Rescission.
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With respect to Nucor's argument that Valin Xiangtan does not
currently have a separate rate and the information from the 2006-2007
POR is insufficient for the Department to make a separate rate
determination, the Department issued a supplemental questionnaire
specific to Valin Xiangtan's separate rate eligibility during the
current POR.\4\ With respect to Section C information, because Valin
Xiangtan certified that it had no subsequent shipments during the
current POR, and since we find there were no material differences
between the NSR and AR questionnaire, we determined that it was not
necessary for Valin Xiangtan to submit revised Section C information
for the current POR.
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\4\ See Valin Xiangtan's July 13, 2009, supplemental
questionnaire response.
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With respect to Nucor's argument that the Department requires that
respondents report current FOP data, including market-economy inputs,
and by-product offsets, we note that the Department has in previous
cases allowed a respondent to report prior period cost data, under
similar circumstances. See Certain Hot-Rolled Carbon Steel Flat
Products from Romania: Final Results of Antidumping Duty Administrative
Review, 72 FR 18204 (April 11, 2007) (``Hot-Rolled Carbon Steel Flat
Products from Romania''), and accompanying Issues and Decision
Memorandum at Comment 2. See also Stainless Steel Wire Rods from India:
Preliminary Results of Antidumping Duty Administrative Review and
Notice of Intent to Rescind Antidumping Duty Administrative Review in
Part, 72 FR 52079, 52081 (September 12, 2007) unchanged in Stainless
Steel Wire Rods from India: Final Results of Antidumping Duty
Administrative Review and Notice of Rescission of Antidumping Duty
Administrative Review in Part, 72 FR 68123 (December 4, 2007) (``Wire
Rods from India'').
In Hot-Rolled Carbon Steel Flat Products from Romania, the
respondent had sales during one POR that did not enter the United
States until the POR of the next segment, and the Department found it
appropriate to use cost data from the POR during which the sale
occurred. Similarly, in Wire Rods from India, the Department used prior
POR cost data because the only entry of subject merchandise during the
POR occurred early in the POR and the merchandise was sold and shipped
during the prior POR. We find that the case cited by Nucor, Preliminary
Determination of Sales at Less Than Fair Value, Postponement of Final
Determination, and Preliminary Partial Determination of Critical
Circumstances: Diamond Sawblades and Parts Thereof from the People's
Republic of China (``Diamond Sawblades''), 70 FR 77121 (December 29,
2005), is factually distinguishable from the instant case, Wire Rods
from India, and Hot-Rolled Carbon Steel Flat Products from Romania. In
Diamond Sawblades, the respondent did not have period of investigation
(``POI'') production of all types of merchandise for which it had sales
and the Department used pre-POI FOP data valued with POI surrogate
values (``SVs'). Here, Valin Xiangtan did not have any sales of subject
merchandise during the current AR. In the instant case, we find that
because Valin Xiangtan's sale occurred during the 2006-2007 POR, but
the entry occurred at the beginning of the current POR, and Valin
Xiangtan had no subsequent sales to the United States, consistent with
Hot-Rolled Carbon Steel Flat Products from Romania and Wire Rods from
India, we are using FOP data from the 2006-2007 POR, valued with SVs
from the 2006-2007 POR.
Scope of the Order
The products covered by the order include hot-rolled carbon steel
universal mill plates (i.e., flat-rolled products rolled on four faces
or in a closed box pass, of a width exceeding 150 millimeters but not
exceeding 1,250 millimeters and of a thickness of not less than 4
millimeters, not in coils and without patterns in relief), of
rectangular shape, neither clad, plated nor coated with metal, whether
or not painted, varnished, or coated with plastics or other nonmetallic
substances; and certain hot-rolled carbon steel flat-rolled products in
straight lengths, of rectangular shape, hot rolled, neither clad,
plated, nor coated with metal, whether or not painted, varnished, or
coated with plastics or other nonmetallic substances, 4.75 millimeters
or more in thickness and of a width which exceeds 150 millimeters and
measures at least twice the thickness, as currently classifiable in the
Harmonized Tariff Schedule of the United States (``HTSUS'') under item
numbers 7208.40.3030, 7208.40.3060, 7208.51.0030, 7208.51.0045,
7208.51.0060, 7208.52.0000, 7208.53.0000, 7208.90.0000, 7210.70.3000,
7210.90.9000, 7211.13.0000, 7211.14.0030, 7211.14.0045, 7211.90.0000,
7212.40.1000, 7212.40.5000, and 7212.50.0000. Included in the order are
flat-rolled products of non-rectangular cross-section where such cross-
section is achieved subsequent to the rolling process (i.e., products
which have been ``worked after rolling'') - for example, products which
have been beveled or rounded at the edges. Excluded from the order is
grade X-70 plate. Also excluded from the order is certain carbon cut-
to-length steel plate with a maximum thickness of 80 mm in steel grades
BS 7191, 355 EM, and 355 EMZ, as amended by Sable Offshore Energy
Project specification XB MOO Y 15 0001, types 1 and 2. Although the
HTSUS subheadings are provided for convenience and customs purposes,
the written description of the scope is dispositive.
Non-Market-Economy Status
In every case conducted by the Department involving the PRC, the
PRC has been treated as a non-market economy (``NME'') country.\5\ In
accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as
amended (``the Act''), any determination that a foreign country is an
NME country shall remain in effect until revoked by the administering
authority. See, e.g., Brake Rotors from the People's Republic of China:
Final Results and Partial Rescission of the 2004/2005
[[Page 39924]]
Administrative Review and Notice of Rescission of 2004/2005 New Shipper
Review, 71 FR 66304 (November 14, 2006). No party to this proceeding
has contested such treatment. Accordingly, we calculated normal value
(``NV'') in accordance with section 773(c) of the Act, which applies to
NME countries.
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\5\ See, e.g., Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, from the People's Republic of China: Final
Results of Antidumping Duty Administrative Review, 74 FR 3987
(January 22, 2009).
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Surrogate Country
Section 773(c)(1) of the Act directs the Department to base NV on
the NME producer's FOPs, valued in a surrogate market economy (``ME'')
country or countries considered to be appropriate by the Department. In
accordance with section 773(c)(4) of the Act, in valuing the FOPs, the
Department shall use, to the extent possible, the prices or costs of
the FOPs in one or more ME countries that are: (1) at a level of
economic development comparable to that of the NME country; and (2)
significant producers of comparable merchandise. For a detailed
discussion of the SVs used in this proceeding, see the ``Factor
Valuations'' section below and the Department's memorandum to the file
entitled, ``New Shipper Review of Certain Cut-to-Length Carbon Steel
Plate from the People's Republic of China: Factor Valuations for the
Preliminary Determination,'' dated concurrently with this notice
(``Factor Valuation Memorandum''), dated August 3, 2009.
Because we are valuing FOPs from the prior period (11/1/06-10/31/
07) (see ``Period of Review'' section above), we asked interested
parties to submit surrogate country comments based on the list of the
five countries determined to be economically comparable to the PRC
during the 2006-2007 POR. See the Department's Letter to Interested
Parties entitled ``2007-2008 Administrative Review of the Antidumping
Duty Order on Certain Cut-to-Length Carbon Steel Plate from the
People's Republic of China: Surrogate Country Selection,'' dated May
21, 2009. While Valin Xiangtan submitted comments on February 6, 2008
(transferred to the record of the current AR), offering evidence of
significant CTL steel production in Indonesia, Thailand, and India, no
new comments on the selection of a surrogate country were submitted by
an interested party in response to the Department's May 21, 2009,
request for comments. As we determined for the 2006-2007 POR, we find
that India is at a level of economic development comparable to that of
the PRC; is a significant producer of comparable merchandise (i.e., CTL
Steel Plate); and has publicly available and reliable data.\6\
Accordingly, we are continuing to select India as the primary surrogate
country for purposes of valuing the FOPs in the calculation of NV for
these preliminarily results because it meets the Department's criteria
for surrogate country selection.\7\
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\6\ See the Department's Memorandum to the File dated August 3,
2009, attaching the Department's memorandum from the 2006-2007 POR
entitled, ``New Shipper Review of the Antidumping Duty Order of Cut-
To-Length Steel Plate from the People's Republic of China: Selection
of a Surrogate Country,'' dated February 11, 2008 (``Surrogate
Country Memorandum'').
\7\ See Surrogate Country Memorandum.
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In accordance with 19 CFR 351.301(c)(3)(ii), for the final results
of an antidumping administrative review, interested parties may submit
publicly available information to value the FOPs within 20 days after
the date of publication of the preliminary results.\8\
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\8\ In accordance with 19 CFR 351.301(c)(1), for the final
determination of this administrative review, interested parties may
submit factual information to rebut, clarify, or correct factual
information submitted by an interested party less than ten days
before, on, or after, the applicable deadline for submission of such
factual information. However, the Department notes that 19 CFR
351.301(c)(1) permits new information only insofar as it rebuts,
clarifies, or corrects information recently placed on the record.
The Department generally will not accept the submission of
additional, previously absent-from-the-record alternative surrogate
value information pursuant to 19 CFR 351.301(c)(1). See Glycine from
the People's Republic of China: Final Results of Antidumping Duty
Administrative Review and Final Rescission, in Part, 72 FR 58809
(October 17, 2007), and accompanying Issues and Decision Memorandum
at Comment 2.
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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 assigned a single
antidumping duty rate. It is the Department's policy to assign all
exporters of merchandise subject to review 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. Exporters can
demonstrate this independence through the absence of both de jure and
de facto government control over export activities. The Department
analyzes each entity exporting the subject merchandise under a test
arising from 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 further developed 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'').
However, if the Department determines that a company is wholly foreign-
owned or located in a market economy, then a separate-rate analysis is
not necessary to determine whether it is independent from government
control.
a. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (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) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Valin Xiangtan supports a preliminary
finding of absence of de jure government control based on the
following: (1) an absence of restrictive stipulations associated with
Valin Xiangtan's business\9\ and export licenses\10\; (2) applicable
legislative enactments decentralizing control of the company\11\; and
(3) formal measures by the government decentralizing control of the
company\12\. However, notwithstanding our preliminarily finding that
there is an absence of restrictive stipulations associated with Valin
Xiangtan's export license, the Department is opening the record for
additional factual information regarding the implementation of the
export license mechanism. Parties will have 10 days from the
publication of this notice to provide such information. Rebuttal
information will be due 5 days later.
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\9\ See Valin Xiangtan's supplemental submission dated July 13,
2009 at Exhibit 1.
\10\ See Valin Xiangtan's supplemental submission dated June 9,
2009 at page 1 and Exhibit 1.
\11\ See, e.g., Company Law of the People's Republic of China,
at Valin Xiangtan's supplemental submission dated April 28, 2008 at
Exhibit A-23.
\12\ See Id.
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b. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto government control of
its export functions: (1) Whether the export prices are set by or are
subject to the approval of a government agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes
[[Page 39925]]
independent decisions regarding disposition of profits or financing of
losses. See Silicon Carbide, 59 FR at 22586-87; 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).
The Department has determined that an analysis of de facto control
is critical in determining whether respondents are, in fact, subject to
a degree of government control over export activities which would
preclude the Department from assigning them separate rates. We
determine for Valin Xiangtan that the evidence on the record supports a
preliminary finding of de facto absence of government control based on
record statements and supporting documentation showing the following:
(1) Valin Xiangtan sets its own export prices independent of the
government and without the approval of a government authority\13\; (2)
Valin Xiangtan retains the proceeds from its sales and makes
independent decisions regarding disposition of profits or financing of
losses\14\; (3) Valin Xiangtan has the authority to negotiate and sign
contracts and other agreements\15\; and (4) Valin Xiangtan has autonomy
from the government regarding the selection of management.\16\ See,
e.g., Valin Xiangtan's July 13, 2009, supplemental response.
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\13\ See Valin Xiangtan's supplemental submission dated April
28, 2008, at Exhibits A-24, and A-25.
\14\ See Valin Xiangtan's Section A response at 15.
\15\ See Valin Xiangtan's supplemental submission dated April
28, 200, at Exhibits A-24, and A-25.
\16\ See Valin Xiangtan's Section A response at 13. See also
Valin Xiangtan's supplemental submission dated April 28, 2008, at 1
and Exhibit A-15.
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The evidence placed on the record of this review by Valin Xiangtan
demonstrates an absence of de jure and de facto government control with
respect to its exports of the merchandise under review, in accordance
with the criteria identified in Sparklers and Silicon Carbide.
Therefore, we are preliminarily granting Valin Xiangtan a separate
rate.
Fair Value Comparisons
To determine whether Valin Xiangtan's sales of the subject
merchandise to the United States were made at prices below normal
value, we compared its U.S. sales prices to normal values, as described
in the ``U.S. Price'' and ``Normal Value'' sections of this notice.
U.S. Price
For Valin Xiangtan, we based U.S. price on export price (``EP'') in
accordance with section 772(a) of the Act, because the first sale to an
unaffiliated purchaser was made prior to importation, and reliance upon
constructed export price was not otherwise warranted by the facts on
the record. We calculated EP based on the packed price from the
exporter to the first unaffiliated customer in the United States.
Normal Value
We compared NV to individual EP transactions in accordance with
section 777A(d)(2) of the Act. Section 773(c)(1) of the Act provides
that the Department shall determine NV using an FOP 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 under section 773(a)
of the Act. When determining NV in an NME context, the Department will
base NV on FOPs because the presence of government controls on various
aspects of these economies renders price comparisons and the
calculation of production costs invalid under our normal methodologies.
Under section 773(c)(3) of the Act, FOPs include but are not limited
to: (1) hours of labor required; (2) quantities of raw materials
employed; (3) amounts of energy and other utilities consumed; and (4)
representative capital costs. The Department used FOPs reported by the
respondent for materials, energy, labor and packing.
In accordance with 19 CFR 351.408(c)(1), the Department will
normally use publicly available information to find an appropriate SV
to value FOPs, but when a producer sources an input from a market
economy and pays for it in market-economy currency, the Department may
value the factor using the actual price paid for the input. See 19 CFR
351.408(c)(1); see also Shakeproof Assembly Components Div of Ill v.
United States, 268 F.3d 1376, 1382-1383 (Fed. Cir. 2001) (affirming the
Department's use of market-based prices to value certain FOPs).
With regard to both the Indian import-based surrogate values and
the market economy input values, the Department has disregarded prices
that the Department has reason to believe or suspect may be subsidized.
The Department has reason to believe or suspect that prices of inputs
from India, Indonesia, South Korea, and Thailand may have been
subsidized. The Department has found in other proceedings that these
countries maintain broadly available, non-industry-specific export
subsidies and, therefore, it is reasonable to infer that all exports to
all markets from these countries may be subsidized.\17\ The Department
is also guided by the statute's legislative history that explains that
it is not necessary to conduct a formal investigation to ensure that
such prices are not subsidized. See Omnibus Trade and Competitiveness
Act of 1988, Conference Report to accompany H.R. Rep. 100-576 at 590
(1988) reprinted in 1988 U.S.C.C.A.N. 1547, 1623-24; see also
Preliminary Determination of Sales at Less Than Fair Value: Coated Free
Sheet Paper from the People's Republic of China, 72 FR 30758, 30763 n.6
(June 4, 2007) unchanged in Final Determination of Sales at Less Than
Fair Value: Coated Free Sheet Paper from the People's Republic of
China, 72 FR 60632 (October 25, 2007) (``Coated Free Sheet''). Rather,
the Department bases its decision on information that is available to
it at the time it makes its determination. See Polyethylene
Terephthalate Film, Sheet, and Strip from the People's Republic of
China: Preliminary Determination of Sales at Less Than Fair Value, 73
FR 24552, 24559 (May 5, 2008), unchanged in Polyethylene Terephthalate
Film, Sheet, and Strip from the People's Republic of China: Final
Determination of Sales at Less Than Fair Value, 73 FR 55039 (September
24, 2008) (``PRC PET Film''). Therefore, the Department has not used
prices from these countries in calculating the Indian import-based
surrogate values. Additionally, the Department disregarded prices from
NME countries. Finally, we also excluded from the average value imports
that were labeled as originating from an ``unspecified'' country, as
the Department could not be certain that they were not from either an
NME country or a country with general export subsidies. See id.
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\17\ See Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam: Notice of Preliminary Results and Preliminary Partial
Rescission of Antidumping Duty Administrative Review, 70 FR 54007,
54011 (September 13, 2005) (unchanged in the final results); China
National Machinery Import & Export Corporation v. United States, 293
F. Supp. 2d 1334 (CIT 2003), as affirmed by the Federal Circuit, 104
Fed. Appx. 183 (Fed. Cir. 2004).
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Factor Valuations
In accordance with section 773(c) of the Act, we calculated NV
based on the FOPs reported by Valin Xiangtan for the 2006-2007 POR. To
calculate NV, we multiplied the reported per-unit factor-consumption
rates by publicly available Indian SVs, except where noted below. In
selecting the SVs, we considered the quality, specificity, and
[[Page 39926]]
contemporaneity of the data.\18\ As appropriate, we adjusted input
prices by including freight costs to make them delivered prices.
Specifically, where appropriate we added to Indian import SVs a
surrogate freight cost using the shorter of the reported distance from
the domestic supplier to the factory or the distance from the nearest
seaport to the factory, where appropriate. This adjustment is in
accordance with the U.S. Court of Appeals for the Federal Circuit
decision in Sigma Corp. v. United States, 117 F.3d 1401, 1407-1408
(Fed. Cir. 1997). In those instances where we could not obtain publicly
available information contemporaneous with the 2006-2007 POR with which
to value FOPs, we adjusted the SVs using, where appropriate, the Indian
Wholesale Price Index (``WPI''), as published in the International
Financial Statistics of the International Monetary Fund. For a detailed
description of all SVs used for Valin Xiangtan, see the Factor
Valuation Memorandum.
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\18\ See, e.g., Folding Metal Tables and Chairs from the
People's Republic of China; Final Results of Antidumping Duty
Administrative Review, 71 FR 71509 (December 11, 2006), and
accompanying Issues and Decision Memorandum at Comment 9.
---------------------------------------------------------------------------
Except where discussed below, we valued raw material inputs using
November 2006 through October 2007, weighted-average unit import values
derived from the Monthly Statistics of the Foreign Trade of India, as
published by the Directorate General of Commercial Intelligence and
Statistics of the Ministry of Commerce and Industry, Government of
India and compiled by the World Trade Atlas (``WTA''), available at
http://www.gtis.com/wta.htm. The Indian WTA import data is reported in
rupees and dollars and is contemporaneous with the 2006-2007 POR.\19\
Indian SVs denominated in Indian rupees were converted to U.S. dollars
using the applicable daily exchange rate for India for the POR. See
http://www.ia.ita.doc.gov/exchange/index.html.
---------------------------------------------------------------------------
\19\ See Factor Valuation Memorandum at Attachments 1 and 3.
---------------------------------------------------------------------------
Consistent with the Department's valuation of gas inputs in Pure
Magnesium from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 73 FR 76336 (December 16, 2008)
(``Pure Magnesium''), we valued Valin Xiangtan's gas inputs using WTA
import data of natural gas from Thailand. Additionally, we valued
ferric mill/slag using Indonesian import data from WTA. For more
details, see Factor Valuation Memorandum.
Valin Xiangtan reported that certain of its reported raw material
inputs were sourced from an ME country and paid for in ME currencies.
Pursuant to 19 CFR 351.408(c)(1), when a respondent sources inputs from
an ME supplier in meaningful quantities (i.e., not insignificant
quantities), we use the actual price paid by respondent for those
inputs, except when prices may have been distorted by findings of
dumping by the PRC and/or subsidies.\20\ Valin Xiangtan's reported
information demonstrates that it has both significant and insignificant
quantities of certain raw materials purchased from ME suppliers. Where
we found ME purchases to be of significant quantities (i.e., 33 percent
or more), in accordance with our statement of policy as outlined in
Antidumping Methodologies: Market Economy Inputs,\21\ we used the
actual purchases of these inputs to value the inputs. Accordingly, we
valued Valin Xiangtan's inputs using the ME prices paid for in ME
currencies for the inputs where the total volume of the input purchased
from all ME sources during the POR exceeds or is equal to 33 percent of
the total volume of the input purchased from all sources during the
period.\22\ Where the quantity of the reported input purchased from ME
suppliers was below 33 percent of the total volume of the input
purchased from all sources during the POR, and were otherwise valid, we
weight averaged the ME input's purchase price with the appropriate
surrogate value for the input according to their respective shares of
the reported total volume of purchases.\23\ Where appropriate, we added
freight to the ME prices of inputs. For a detailed description of the
actual values used for the ME inputs reported, see the Department's
Memorandum to the File entitled, ``2007-2008 Administrative Review of
Certain Cut-to-Length Carbon Steel Plate from the People's Republic of
China: Valin Xiangtan Preliminary Analysis Memorandum,'' dated August
3, 2009.
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\20\ See Antidumping Duties; Countervailing Duties; Final Rule,
62 FR 27296, 27366 (May 19, 1997).
\21\ See Antidumping Methodologies: Market Economy Inputs,
Expected Non-Market Economy Wages, Duty Drawback; and Request for
Comments, 71 FR 61716, 61717 (October 19, 2006) (``Antidumping
Methodologies: Market Economy Inputs'').
\22\ See Valin Xiangtan's May 28, 2008, supplemental D
submission at Exhibit D-8.
\23\ See Antidumping Methodologies: Market Economy Inputs, 71 FR
at 61718.
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Where we could not obtain publicly available information
contemporaneous with the 2006-2007 POR with which to value factors,
where applicable we adjusted the SVs for inflation using the WPI for
India. See Factor Valuation Memorandum.
We used Indian transport information to value the inland truck,
rail, and waterway freight cost of the raw materials. The Department
determined the best available information for valuing truck freight to
be from the following website: www.infobanc.com/logistics/logtruck.htm.
The logistics section of this source contains inland truck freight
rates from four major points of origin to 25 destinations in India. The
Department obtained inland truck freight rates updated through
September 2008 from each point of origin to each destination and
averaged the data accordingly. Since this value is not contemporaneous
with the 2006-2007 POR, we deflated the rate using the WPI. See Factor
Valuation Memorandum. The Department determined the best available
information for valuing rail freight to be from the Indian Ministry of
Railways (http://www.indianrailways.gov.in). To value waterway freight,
we used pricing information from a study on inland water transportation
in India placed on the record by Valin Xiangtan. For data that were not
contemporaneous with the 2006-2007 POR, we adjusted the rates for
inflation using WPI, where applicable.
We valued electricity using price data for small, medium, and large
industries, as published by the Central Electricity Authority of the
Government of India in its publication titled Electricity Tariff & Duty
and Average Rates of Electricity Supply in India, dated July 2006.
These electricity rates represent actual country-wide, publicly
available information on tax-exclusive electricity rates charged to
industries in India. See Factor Valuation Memorandum.
The Department valued water using data from the Maharashtra
Industrial Development Corporation (www.midcindia.org) because it
includes a wide range of industrial water tariffs. This source provides
386 industrial water rates within the Maharashtra province from June
2003: 193 for the ``inside industrial areas'' usage category and 193
for the ``outside industrial areas'' usage category. Because the value
was not contemporaneous with the 2006-2007 POR, we adjusted the rate
for inflation. See Factor Valuation Memorandum.
For direct and indirect labor, consistent with 19 CFR
351.408(c)(3), we used the PRC regression-based wage rate as reported
on Import Administration's home page, Import Library, Expected Wages of
Selected NME Countries, revised in May 2008, available at http://www.trade.gov/ia/.
[[Page 39927]]
Because this regression-based wage rate does not separate the labor
rates into different skill levels or types of labor, we have applied
the same wage rate to all skill levels and types of labor reported by
the respondent. For further details on the labor calculation, see
Factor Valuation Memorandum.
Interested parties submitted financial statements for the 2007-2008
fiscal year covering the period of April 1, 2007, through March 31,
2008, from Essar Steel Limited (``Essar''), Tata Steel Limited's
(``Tata''), Steel Authority of India Limited (``SAIL''), and Ispat
Industries Limited (``Ispat''). For the preliminary results, we find
Essar's 2007-2008 fiscal year financial statements to be the best
available information to calculate surrogate financial ratios because
they are complete, legible, publicly-available, contemporaneous with
the 2006-2007 POR, from a producer of identical merchandise, and at a
similar level of integration as Valin Xiangtan.
It is the Department's practice to disregard financial statements
where we have reason to suspect that the company has received
actionable subsidies and where there is other usable data on the
record.\24\ All four companies identified above received subsidies and
there are no other financial statements on the record of this review.
We determine that Essar's financial statements are the best available
information on the record for the reasons discussed below. See, e.g.,
PRC PET Film accompanying Issues and Decision Memorandum at Comment 3.
Specifically, we have determined that Essar's 2007-2008 fiscal year
financial statements are contemporaneous with the 2006-2007 POR because
they cover seven months of the 2006-2007 POR. Additionally, we have
determined that Essar is at the same level of integration as Valin
Xiangtan.
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\24\ See, e.g., Certain New Pneumatic Off-The-Road Tires from
the People's Republic of China: Final Affirmative Determination of
Sales at Less Than Fair Value and Partial Affirmative Determination
of Critical Circumstances, 73 FR 40485 (July 15, 2008) (``Tires''),
and accompanying Issues and Decision Memorandum at Comment 17A. See
also Pure Magnesium, and accompanying Issues and Decision Memorandum
at Comment 6.
---------------------------------------------------------------------------
In contrast, Tata and SAIL are more integrated than Valin Xiangtan
because they are Indian steel companies that mine their own inputs,
such as coal and iron ore. According to pages 6 and 132 of Tata's 2007-
2008 fiscal year financial statements, Tata is 100 percent self-
sufficient in its current requirement of iron ore for its Jamshedpur
operations and 60 percent of its coal requirement from its own mines.
With respect to SAIL, page 12 of SAIL's 2007-2008 fiscal year financial
statements indicate that SAIL leases its mining land and that it owns
mines for dolomite, limestone, and iron-ore. We find the level of
vertical integration to be an important distinction among the four
steel companies because of the effect that mining operations have on
surrogate financial ratios. See, e.g., Electrolytic Manganese Dioxide
From the People's Republic of China: Final Determination of Sales at
Less than Fair Value, 73 FR 48195 (August 18, 2008), and accompanying
Issue and Decision Memorandum at Comment 3.
Finally, although both Ispat and Essar are at the same level of
integration as Valin Xiangtan and have similar production processes, we
have determined to use Essar's financial statements because Essar is a
producer of identical rather than comparable merchandise. See, e.g.,
Persulfates from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 68 FR 6712 (February 10, 2003),
and accompanying Issues and Decision Memorandum at Comment 8.
Therefore, for factory overhead, selling, general, and administrative
expenses, and profit, consistent with 19 CFR 351.408(c)(4), we used the
public information from Essar's 2007-2008 fiscal year financial
statements. For a full discussion of the calculation of these ratios,
see Factor Valuation Memorandum.
Valin Xiangtan has requested offsets for certain byproducts. When
the Department considers the appropriateness of granting a by-product
offset, the Department's practice is to determine whether the by-
product quantity is clearly produced from the quantity of FOPs reported
and/or whether any income for the byproducts was realized by the
company during the POR. See, e.g., Chlorinated Isocyanurates from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review, 73 FR 52645 (September 10, 2008), and
accompanying Issues and Decision Memorandum at Comment 6. We find that
Valin Xiangtan has appropriately reported its byproducts, and
therefore, we have granted Valin Xiangtan's offsets for the quantities
of these byproducts valued using Indian WTA data. Valin Xiangtan has
represented that certain inputs are self-produced in the production of
subject merchandise, and requests that the Department not value these
inputs in calculating normal value, because the Department is already
valuing the raw materials to product these inputs. Consistent with
Department practice, we find it appropriate not to value these self-
produced inputs when reintroduced into the production of subject
merchandise, because we have valued the raw materials to produce these
inputs. See, e.g., Coated Free Sheet, and accompanying Issues and
Decision Memorandum at Comment 8. See also Laizhou Auto Brake Equipment
Co. v. United States , 580 F. Supp. 2d 1381, (CIT, November 5, 2008)
affirming Final Results of Redetermination Pursuant to Court Remand (at
4) (``We note that the Department does not value recycled scrap
reintroduced into the same production process that produced the scrap,
because the reintroduction of recycled scrap into the production
process represents the re-use of purchased raw materials for which the
Department has already accounted.'')
Valin Xiangtan has certain materials in its production process that
it collects and reintroduces (recycles). Valin Xiangtan requested that
the Department not value these recycled inputs, when these inputs are
recycled from materials that the Department has already valued in its
normal value calculation. Because Valin Xiangtan has demonstrated the
quantities of these materials that were recycled, and has demonstrated
that the Department is already valuing them as initial inputs in the
production of subject merchandise, we are not valuing them again when
these recycled inputs are reintroduced into the production process.
See, e.g. Coated Free Sheet at Comment 8.
We recently stated in Silicon Metal from the People's Republic of
China: Preliminary Results and Preliminary Rescission, in Part, of
Antidumping Duty Administrative Review, 74 FR 32885-02 (July 9, 2009)
that the Department was changing its practice of granting byproduct
offsets for NME cases. The Department will now grant byproduct offsets
based on total production rather than using the ``lower of'' the
quantity of byproduct produced or sold/consumed in each POR. As this
change in Department practice occurred shortly before these preliminary
results, we will give Valin Xiangtan the opportunity to revise its
reported byproduct offset claim for the final results. Moreover, the
Department notes that, while Valin Xiangtan has requested that we (1)
grant byproduct offsets for 6.4 Steel Scrap, 6.14 Steel Scrap, and 6.15
Steel Scrap and (2) not value 6.3 Iron Powder and 6.13 Steel Scrap
because these are reintroduced inputs for which the Department has
already valued the raw materials, Valin Xiangtan did not report these
fields in its most recently submitted FOP database. Therefore, we will
provide
[[Page 39928]]
Valin Xiangtan with the opportunity to resubmit its FOP database to
correct its data with respect to these items after the preliminary
results.
Currency Conversion
Where applicable, we made currency conversions into U.S. dollars,
in accordance with section 773A(a) of the Act, based on the exchange
rates in effect on the dates of the U.S. sales, as certified by the
Federal Reserve Bank. See http://www.ia.ita.doc.gov/exchange/index.html.
Preliminary Results of Review
We preliminarily determine that the following dumping margin exists
for the period November 1, 2007, through October 31, 2008:
Certain Cut-to-Length Carbon Steel Plate from the PRC
------------------------------------------------------------------------
Exporter Ad Valorem Margin
------------------------------------------------------------------------
Hunan Valin Xiangtan Iron & Steel Co. Ltd........... 0.00 percent
------------------------------------------------------------------------
The Department will disclose calculations performed for these
preliminary results to the parties within five days of the date of
publication of this notice in accordance with 19 CFR 351.224(b). 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. Issues raised
in the hearing will be limited to those raised in case and rebuttal
briefs. If a request for a hearing is made, parties will be notified of
the time and date for the hearing to be held at the U.S. Department of
Commerce, 14\th\ Street and Constitution Avenue, NW, Washington, DC
20230. See 19 CFR 351.310(c).
In order to allow parties time to comment on the export license
scheme discussed above and to submit publicly-available information to
value FOPs, case briefs from interested parties may be submitted not
later than 45 days after 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, not later than 120 days after the date of publication
of this notice.
Assessment Rates
The Department will determine, and CBP shall assess, antidumping
duties on all appropriate entries of subject merchandise in accordance
with the final results of this review. For assessment purposes, we
calculated exporter/importer- (or customer) -specific assessment rates
for merchandise subject to this review. Where appropriate, we
calculated an ad valorem rate for each importer (or customer) by
dividing the total dumping margins for reviewed sales to that party by
the total entered values associated with those transactions. For duty-
assessment rates calculated on this basis, we will direct CBP to assess
the resulting ad valorem rate against the entered customs values for
the subject merchandise. Where appropriate, we calculated a per-unit
rate for each importer (or customer) by dividing the total dumping
margins for reviewed sales to that party by the total sales quantity
associated with those transactions. For duty-assessment rates
calculated on this basis, we will direct CBP to assess the resulting
per-unit rate against the entered quantity of the subject merchandise.
Where an importer- (or customer) -specific assessment rate is de
minimis (i.e., less than 0.50 percent), the Department will instruct
CBP to assess that importer (or customer's) entries of subject
merchandise without regard to antidumping duties. We intend to instruct
CBP to liquidate entries containing subject merchandise exported by the
PRC-wide entity at the PRC-wide rate we determine in the final results
of this review. The Department intends to issue appropriate assessment
instructions directly to CBP 15 days after publication of the final
results of this review.
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 from the PRC entered, or withdrawn
from warehouse, for consumption on or after the publication date, as
provided by section 751(a)(2)(C) of the Act: (1) for Valin Xiangtan,
the cash deposit rate will be that established in the final results of
this review, except if the rate is zero or de minimis no cash deposit
will be required; (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 separate
rate, the cash deposit rate will be the PRC-wide rate of 128.59
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: August 3, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-19096 Filed 8-7-09; 8:45 am]
BILLING CODE 3510-DS-S