[Federal Register Volume 74, Number 206 (Tuesday, October 27, 2009)]
[Notices]
[Pages 55194-55199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-25855]
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DEPARTMENT OF COMMERCE
International Trade Administration
(A-570-964, A-201-838)
Seamless Refined Copper Pipe and Tube from the People's Republic
of China and Mexico: Initiation of Antidumping Duty Investigations
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: October 27, 2009.
FOR FURTHER INFORMATION CONTACT: Maisha Cryor at (202) 482-5831 or
Zhulieta Willbrand at (202) 482-3147 (the People's Republic of China
(the ``PRC'')), AD/CVD Operations, Office 4; George McMahon at (202)
482-1167 or James Terpstra at (202) 482-3965 (Mexico), AD/CVD
Operations, Office 3, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
The Petitions
On September 30, 2009, the Department of Commerce (the
``Department'') received petitions concerning imports of seamless
refined copper pipe and tube (``copper pipe and tube'') from the PRC
and Mexico filed in proper form by Cerro Flow Products, Inc.,
KobeWieland Copper Products, LLC, Mueller Copper Tube Products, Inc.,
and Mueller Copper Tube Company, Inc. (collectively, ``Petitioners'').
See Petitions for the Imposition of Antidumping Duties on Seamless
Refined Copper Pipe and Tube from the People's Republic of China and
Mexico, dated September 30, 2009 (the ``Petitions''). On October 5,
2009, October 8, 2009, October 14, 2009, and October 16, 2009, the
Department issued a request for additional information and
clarification of certain areas of the Petitions. On October 14, 2009,
the Department contacted Petitioners by telephone seeking additional
information and clarification regarding the PRC portion of the
Petition. See Memo to the File from Maisha Cryor, ``Seamless Refined
Copper Pipe and Tube from the People's Republic of China and Mexico:
Margin Calculation,'' dated October 15, 2009. On October 16, 2009, the
Department contacted Petitioners by telephone seeking additional
information and clarification regarding the scope of the Petition. See
Memo to the File from Dana M. Griffies, Import Policy Analyst, ``
Petition for the Imposition of Antidumping Duties Seamless Refined
Copper Pipe and Tube from the People's Republic of China and Mexico:
Suggested Scope Changes,'' dated October 16, 2009.
On October 19, 2009, the Department contacted Petitioners by
telephone seeking additional information and clarification regarding
industry support. See Memo to the File from Dana M. Griffies, Import
Policy Analyst, `` Petition for the Imposition of Antidumping Duties
Seamless Refined Copper Pipe and Tube from the People's Republic of
China and Mexico: Industry Support,'' dated October 19, 2009. Based on
the Department's requests, Petitioners filed additional information on
October 13, 2009 (hereinafter, ``Supplement to the Petitions, dated
October 13, 2009''), October 15, 2009 (hereinafter, ``Supplement to the
PRC Petition, dated October 15, 2009''), October 16, 2009 (hereinafter,
``Second Supplement to the Petitions, dated October 16, 2009''),
October 19, 2009 (hereinafter, ``Third Supplement to the
Petitions\1\,''), and October 20, 2009 (hereinafter, ``Fourth
Supplement to the Petitions''). The period of investigation (``POI'')
for the PRC is January 1, 2009, through June 30, 2009. The POI for
Mexico is July 1, 2008, through June 30, 2009. See 19 CFR
351.204(b)(1).
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\1\ Final amendments regarding the Petition for the Imposition
of Antidumping Duties: Seamless Refined Copper Pipe and Tube from
the People's Republic of China, and the Petition for the Imposition
of Antidumping Duties: Seamless Refined Copper Pipe and Tube from
Mexico, were filed on October 19, 2009 (collectively, ``Third
Supplement to the Petitions, dated October 19, 2009'').
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In accordance with section 732(b) of the Tariff Act of 1930, as
amended (the ``Act''), Petitioners allege that imports of copper pipe
and tube from the PRC and Mexico are being, or are likely to be, sold
in the United States at less than fair value, within the meaning of
section 731 of the Act, and that such imports are materially injuring,
or threatening material injury to, an industry in the United States.
The Department finds that Petitioners filed the Petitions on behalf
of the domestic industry because Petitioners are interested parties as
defined in section 771(9)(C) of the Act and have demonstrated
sufficient industry support with respect to the antidumping duty
investigations that Petitioners are requesting that the Department
initiate (see ``Determination of Industry Support for the Petitions''
section below).
Scope of Investigations
The products covered by these investigations are copper pipe and
tube from the PRC and Mexico. For a full description of the scope of
the investigations, please see the ``Scope of the Investigations,'' in
Appendix I of this notice.
Comments on Scope of Investigations
During our review of the Petitions, we discussed the scope with
Petitioners to ensure that it is an accurate reflection of the products
for which the domestic industry is seeking relief. Moreover, as
discussed in the preamble to the regulations (Antidumping Duties;
Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997)),
we are setting aside a period for interested parties to raise issues
regarding product coverage. The Department encourages all interested
parties to submit such comments by November 9, 2009, twenty calendar
days from the signature date of this notice. Comments should be
addressed to Import Administration's APO/Dockets Unit, Room 1870, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230. The period of scope consultations is intended to
provide the Department with ample opportunity to consider all comments
and to consult with parties prior to the issuance of the preliminary
determinations.
Comments on Product Characteristics for Antidumping Duty Questionnaires
We are requesting comments from interested parties regarding the
appropriate physical characteristics of copper pipe and tube to be
reported in response to the Department's antidumping questionnaires.
This information will be used to identify the key physical
characteristics of the subject merchandise in order to more accurately
report the relevant factors and costs of production, as well as to
develop appropriate product comparison criteria.
Interested parties may provide any information or comments that
they feel are relevant to the development of an accurate listing of
physical characteristics. Specifically, they may provide comments as to
which characteristics are appropriate to use as 1) general product
characteristics and 2) the product comparison criteria. We note that it
is not always appropriate to use all product characteristics as product
comparison criteria. We base
[[Page 55195]]
product comparison criteria on meaningful commercial differences among
products. In other words, while there may be some physical product
characteristics utilized by manufacturers to describe copper pipe and
tube, it may be that only a select few product characteristics take
into account commercially meaningful physical characteristics. In
addition, interested parties may comment on the order in which the
physical characteristics should be used in product matching. Generally,
the Department attempts to list the most important physical
characteristics first and the least important characteristics last.
In order to consider the suggestions of interested parties in
developing and issuing the antidumping duty questionnaires, we must
receive comments at the above-referenced address by November 9, 2009.
Additionally, rebuttal comments must be received by November 16, 2009.
Determination of Industry Support for the Petitions
Section 732(b)(1) of the Act requires that a petition be filed on
behalf of the domestic industry. Section 732(c)(4)(A) of the Act
provides that a petition meets this requirement if the domestic
producers or workers who support the petition account for: (i) at least
25 percent of the total production of the domestic like product; and
(ii) more than 50 percent of the production of the domestic like
product produced by that portion of the industry expressing support
for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of
the Act provides that, if the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of
the total production of the domestic like product, the Department
shall: (i) poll the industry or rely on other information in order to
determine if there is support for the petition, as required by
subparagraph (A); or (ii) determine industry support using a
statistically valid sampling method.
Section 771(4)(A) of the Act defines the ``industry'' as the
producers as a whole of a domestic like product. Thus, to determine
whether a petition has the requisite industry support, the statute
directs the Department to look to producers and workers who produce the
domestic like product. The International Trade Commission (``ITC''),
which is responsible for determining whether ``the domestic industry''
has been injured, must also determine what constitutes a domestic like
product in order to define the industry. While both the Department and
the ITC must apply the same statutory definition regarding the domestic
like product (see section 771(10) of the Act), they do so for different
purposes and pursuant to a separate and distinct authority. In
addition, the Department's determination is subject to limitations of
time and information. Although this may result in different definitions
of the like product, such differences do not render the decision of
either agency contrary to law. See USEC, Inc. v. United States, 132 F.
Supp. 2d 1, 8 (Ct. Int'l Trade 2001), citing Algoma Steel Corp., Ltd.
v. United States, 688 F. Supp. 639, 644 (Ct. Int'l Trade 1988), aff'd
865 F.2d 240 (Fed. Cir. 1989), cert. denied 492 U.S. 919 (1989).
Section 771(10) of the Act defines the domestic like product as ``a
product which is like, or in the absence of like, most similar in
characteristics and uses with, the article subject to an investigation
under this title.'' Thus, the reference point from which the domestic
like product analysis begins is ``the article subject to an
investigation'' (i.e., the class or kind of merchandise to be
investigated, which normally will be the scope as defined in the
petition).
With regard to the domestic like product, Petitioners do not offer
a definition of domestic like product distinct from the scope of the
investigations. Based on our analysis of the information submitted on
the record, we have determined that copper pipe and tube constitutes a
single domestic like product and we have analyzed industry support in
terms of that domestic like product. For a discussion of the domestic
like product analysis in this case, see Antidumping Duty Investigation
Initiation Checklist: Copper Pipe and Tube from the PRC (``PRC
Initiation Checklist'') at Attachment II, and Antidumping Duty
Investigation Initiation Checklist: Copper Pipe and Tube from Mexico
(``Mexico Initiation Checklist'') at Attachment II, dated concurrently
with this notice and on file in the Central Records Unit (``CRU''),
Room 1117 of the main Department of Commerce building.
In determining whether Petitioners have standing under section
732(c)(4)(A) of the Act, we considered the industry support data
contained in the Petitions with reference to the domestic like product
as defined in the ``Scope of the Investigations,'' in Appendix I of
this notice. To establish industry support, Petitioners provided their
own 2008 shipments of the domestic like product, and compared this to
the estimated total shipments of the domestic like product for the
entire domestic industry. See Petitions, at 2-9, and Exhibits 1-7,
Supplement to the Petitions, dated October 13, 2009, at 8-10, and
Exhibit G, Second Supplement to the Petitions, dated October 16, 2009,
at 2-3, and Exhibit 54, and Fourth Supplement to the Petitions, dated
October 20, 2009, at 7-8 and Exhibit 59. Petitioners argue that
shipments are a reasonable proxy for production because most domestic
production is sold on the merchant market. See Petitions, at 8 and
Exhibits 4-7. Petitioners estimated total 2008 shipments of the
domestic like product based on two industry-specific reports that
publish shipment and production information, as well as two individuals
who are knowledgeable of the U.S. industry. See Petitions, at 8 and
Exhibits 2-3, Supplement to the Petitions, dated October 13, 2009, at
8-10 and Exhibit G, and Second Supplement to the Petitions, dated
October 16, 2009, at 2-3 and Exhibit 54, and Fourth Supplement to the
Petitions, dated October 20, 2009, at 7-8 and Exhibit 59; see also PRC
Initiation Checklist at Attachment II, and Mexico Initiation Checklist
at Attachment II.
Our review of the data provided in the Petitions, supplemental
submissions, and other information readily available to the Department
indicates that Petitioners have established industry support. First,
the Petitions established support from domestic producers (or workers)
accounting for more than 50 percent of the total production of the
domestic like product and, as such, the Department is not required to
take further action in order to evaluate industry support (e.g.,
polling). See section 732(c)(4)(D) of the Act; see also PRC Initiation
Checklist at Attachment II, and Mexico Initiation Checklist at
Attachment II. Second, the domestic producers (or workers) have met the
statutory criteria for industry support under section 732(c)(4)(A)(i)
of the Act because the domestic producers (or workers) who support the
Petitions account for at least 25 percent of the total production of
the domestic like product. See PRC Initiation Checklist at Attachment
II, and Mexico Initiation Checklist at Attachment II. Finally, the
domestic producers (or workers) have met the statutory criteria for
industry support under section 732(c)(4)(A)(ii) of the Act because the
domestic producers (or workers) who support the Petitions account for
more than 50 percent of the production of the domestic like product
produced by that portion of the industry expressing support for, or
opposition to, the Petitions. Accordingly, the Department determines
that the Petitions were filed on behalf of the
[[Page 55196]]
domestic industry within the meaning of section 732(b)(1) of the Act.
See id.
The Department finds that Petitioners filed the Petitions on behalf
of the domestic industry because they are interested parties as defined
in section 771(9)(C) of the Act and they have demonstrated sufficient
industry support with respect to the antidumping duty investigations
that they are requesting the Department initiate. See id.
Allegations and Evidence of Material Injury and Causation
Petitioners allege that the U.S. industry producing the domestic
like product is being materially injured, or is threatened with
material injury, by reason of the imports of the subject merchandise
sold at less than normal value (``NV''). In addition, Petitioners
allege that subject imports exceed the negligibility threshold provided
for under section 771(24)(A) of the Act.
Petitioners contend that the industry's injured condition is
illustrated by reduced market share, lost sales and revenues, reduced
production, reduced capacity utilization rate, underselling and price
depression and suppression, reduced workforce, decline in financial
performance, and an increase in import penetration. We have assessed
the allegations and supporting evidence regarding material injury,
threat of material injury, and causation, and we have determined that
these allegations are properly supported by adequate evidence and meet
the statutory requirements for initiation. See PRC Initiation Checklist
at Attachment III and Mexico Initiation Checklist at Attachment III.
Allegations of Sales at Less Than Fair Value
The following is a description of the allegations of sales at less
than fair value upon which the Department based its decision to
initiate these investigations of imports of copper pipe and tube from
the PRC and Mexico. The sources of data for the deductions and
adjustments relating to the U.S. price, the factors of production (for
the PRC) and cost of production (``COP'') (for Mexico) are also
discussed in the country-specific initiation checklists. See PRC
Initiation Checklist at 6-10 and Mexico Initiation Checklist at 6-10.
Export Price
The PRC
For the PRC, Petitioners calculated export price (``EP'') based on
a price quote made during the POI for a copper pipe and tube product by
a Chinese producer, sale term delivered. See PRC Initiation Checklist
at 6; see also Petitions, at 28-29, and Exhibit 20, and Supplement to
the Petitions, dated October 13, 2009, at 12, and Exhibit G.
Petitioners substantiated the U.S. price quote with an affidavit. See
Petitions, at Exhibit 20. Petitioners made adjustments to EP for ocean
freight, foreign inland freight, and a distributor commission. See PRC
Initiation Checklist at 6-7; see also Petitions, at Exhibits 21 and 23,
and Supplement to the Petitions, dated October 13, 2009, at 18-20, and
Exhibit L. Petitioners made no other adjustments. See PRC Initiation
Checklist for additional details.
Mexico
For Mexico, Petitioners based U.S. price on the invoice from an
actual sale of Type K and Type L copper pipe and tube, produced by a
Mexican manufacturer and sold to a U.S. customer in January 2009. See
Mexico Initiation Checklist; see also Petitions, at 31 and Exhibit 20,
and Supplement to the Petitions, dated October 13, 2009, at 21 and
Exhibit N. Petitioners substantiated the U.S. prices used with an
affidavit and a declaration from persons who obtained the information.
See Supplement to the Petitions, at 21 and Exhibit N. Petitioners
conservatively assumed the selling expenses to be zero in their
calculation of the net U.S. price. Petitioners deducted ocean freight
and foreign inland freight expenses but made no other adjustments. See
Mexico Initiation Checklist at 7; see also Petition, at 32 and Exhibit
35, and Supplement to the Petitions, dated October 13, 2009, at 22, and
Exhibit P. See the Mexico Initiation Checklist for additional details.
Normal Value
The PRC
Petitioners state that the PRC is a non-market economy (``NME'')
country and no determination to the contrary has been made by the
Department. See Petitions, at 29; see also Certain Kitchen Appliance
Shelving and Racks from the People's Republic of China: Amended Final
Determination of Sales at Less Than Fair Value and Notice of
Antidumping Duty Order, 74 FR 46971 (September 14, 2009); see also
Certain Tow Behind Lawn Groomers and Certain Parts Thereof from the
People's Republic of China: Antidumping Duty Order, 74 FR 38395 (August
3, 2009).
In accordance with section 771(18)(C)(i) of the Act, the
presumption of NME status remains in effect until revoked by the
Department. The presumption of NME status for the PRC has not been
revoked by the Department and, therefore, remains in effect for
purposes of the initiation of the PRC investigation. Accordingly, the
NV of the product for the PRC investigation is appropriately based on
factors of production valued in a surrogate market-economy country in
accordance with section 773(c) of the Act. In the course of the PRC
investigation, all parties, including the public, will have the
opportunity to provide relevant information related to the issue of the
PRC's NME status and the granting of separate rates to individual
exporters.
Citing section 773(c)(4) of the Act, Petitioners contend that India
is the appropriate surrogate country for the PRC because: 1) it is at a
level of economic development comparable to that of the PRC; and 2) it
is a significant producer of copper pipe and tube. See Petitions, at
29-30, and Exhibits 26 and 27. Based on the information provided by
Petitioners, we believe that it is appropriate to use India as a
surrogate country for initiation purposes. After initiation of the
investigation, interested parties will have the opportunity to submit
comments regarding surrogate-country selection and, pursuant to 19 CFR
351.301(c)(3)(i), will be provided an opportunity to submit publicly
available information to value factors of production within 40 days
after the date of publication of the preliminary determination.
Petitioners calculated the NV and dumping margins for the U.S.
price, discussed above, using the Department's NME methodology as
required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. Petitioners
calculated NV based on their own consumption rates for producing copper
pipe and tube in 2009. See Petitions at 30, and Exhibits 28 and 34. In
calculating NV, Petitioners based the quantity of each of the inputs
used to manufacture and pack copper pipe and tube in the PRC based on
their own production experience during the POI because they stated that
the actual usage rates of the foreign manufacturers of copper pipe and
tube were not reasonably available. See Petitions, at 30. However,
Petitioners also stated that their production process and cost
structure is representative of the PRC copper pipe and tube producers
because the act of converting copper raw material into copper pipe and
tube is ``fundamentally the same for all producers.'' See Supplement to
the Petitions, dated October 13, 2009, at 18. Petitioners note that
several methods to perform such a conversion exist in the marketplace
indicating that no one method is superior to another for the production
of copper pipe and tube. Id.
[[Page 55197]]
Given these facts, Petitioners assert that their experience ``should be
representative of other Chinese producers when allowance is made for
different wage rates and energy costs.'' Id.
Petitioners valued the factors of production based on reasonably
available, public surrogate-country data, including Indian import
statistics from the World Trade Atlas. See Petitions, at 30, and
Exhibit 29. Petitioners excluded from these import statistics imports
from countries previously determined by the Department to be NME
countries, imports from Indonesia, the Republic of Korea, and Thailand
as the Department has previously excluded prices from these countries
because they maintain broadly available, non-industry-specific export
subsidies, and imports labeled as being from ``unspecified countries.''
See Petitions, at Exhibit 29. In addition, Petitioners made currency
conversions, where necessary, based on the POI-average rupee/U.S.
dollar exchange rate, as reported on the Department's website. See
Petitions, at 31, and Exhibit 25. Petitioners determined labor costs
using the labor consumption, in hours, derived from their own
experience. See Petitions, at Exhibits 28 and 34. Petitioners valued
labor costs using the Department's NME Wage Rate for the PRC at http://ia.ita.doc.gov/wages/05wages/05wages-051608.html. See Petitions, at
Exhibits 28 and 30. For purposes of initiation, the Department
determines that the surrogate values used by Petitioners are reasonably
available and, thus, acceptable for purposes of initiation.
Petitioners determined electricity costs using the electricity
consumption, in kilowatt hours, derived from their own experience. See
Petitions, at Exhibits 28 and 34. Petitioners valued electricity using
the Indian electricity rate reported by the Central Electric Authority
of the Government of India. See Petitions, at Exhibit 24 and,
Supplement to the Petitions, dated October 13, 2009, at 17, and
Exhibits I and J.
Petitioners determined natural gas costs using the natural gas
consumption derived from their own experience. See Petitions, at
Exhibits 28 and 34, and Supplement to the Petitions, dated October 13,
2009, at 17. Petitioners valued natural gas using the Indian rate
reported by the Gas Authority of India, Ltd. See Petitions, at Exhibit
31.
Petitioners determined water costs using the water consumption
derived from their own experience. See Petitions, at Exhibits 28 and
34. Petitioners valued water based on information from the Maharastra
Industrial Development Corporation, which is contemporaneous with the
POI. See Petitions, at Exhibit 24.
Petitioners based factory overhead, selling, general and
administrative (``SG&A''), and profit on data from Multimetals Limited
(``Multimetals''), a copper pipe and tube producer, for the fiscal year
April 2008 through March 2009. See Petitions, at 31, and Exhibits 32
and 33, and Supplement to the Petitions, dated October 13, 2009, at 17,
and Exhibit K. Petitioners state that Multimetals was an Indian
producer of copper pipe and tube products during the fiscal year 2008-
2009. See Petitions, at 31, and Exhibits 32 and 33, and Supplement to
the Petition, dated October 13, 2009, at 17 and Exhibit K. Therefore,
for purposes of the initiation, the Department finds Petitioners' use
of Multimetals' financial ratios appropriate.
Mexico
Petitioners calculated NV for copper pipe and tube based on a price
quote for a Type L copper tube offer from March 2009. See Petitions, at
32, and Supplement to the Petitions, dated October 13, 2009, at 24; see
also Mexico Initiation Checklist. Petitioners substantiated the home
market price quote with an affidavit and a declaration from persons who
obtained the information. See Petitions, at 32, and Exhibit 20, and
Supplement to the Petitions, dated October 13, 2009, at Exhibit N; see
also Mexico Initiation Checklist.
Sales-Below-Cost Allegation
Petitioners have provided information demonstrating reasonable
grounds to believe or suspect that sales of copper pipe and tube in the
Mexican market were made at prices below the fully absorbed COP, within
the meaning of section 773(b) of the Act, and requested that the
Department conduct a country-wide sales-below-cost investigation. The
Statement of Administrative Action (``SAA''), submitted to Congress in
connection with the interpretation and application of the URAA, states
that an allegation of sales below COP need not be specific to
individual exporters or producers. See SAA, H.R. Doc. No. 103-316 at
833 (1994). The SAA, at 833, states that ``Commerce will consider
allegations of below-cost sales in the aggregate for a foreign country,
just as Commerce currently considers allegations of sales at less than
fair value on a country-wide basis for purposes of initiating an
antidumping investigation.''
Further, the SAA provides that section 773(b)(2)(A) of the Act
retains the requirement that the Department have ``reasonable grounds
to believe or suspect'' that below-cost sales have occurred before
initiating such an investigation. Reasonable grounds exist when an
interested party provides specific factual information on costs and
prices, observed or constructed, indicating that sales in the foreign
market in question are at below-cost prices. Id.
Cost of Production
Pursuant to section 773(b)(3) of the Act, COP consists of the cost
of manufacturing (``COM''); SG&A expenses; financial expenses; and
packing expenses. Petitioners calculated the quantity of each of the
material inputs into COM based on the production experience of a U.S.
producer of copper pipe and tube during the POI, multiplied by the
value of inputs used to manufacture copper pipe and tube in Mexico
using publicly available data. See Mexico Initiation Checklist at 8-9;
see also Second Supplement to the Petitions, dated October 16, 2009, at
3-4 and Exhibits 55 and 56.\2\ Petitioners calculated labor, energy,
overhead and packing costs based on their own experience adjusted for
known differences between costs in the United States and costs in
Mexico. Id. To calculate the SG&A and financial expense rates,
Petitioners relied on the fiscal year 2008 financial statements of a
Mexican producer of welded steel pipe, products in the same general
category of merchandise as copper pipe and tube. Id. at 8. Petitioners
indicated that they calculated surrogate financial ratios using the
financial statements of the most comparable company in Mexico during
the most recent period for which data were available. See Petitions at
33, footnote 35. Specifically, Petitioners stated that the data sourced
from this Mexican producer's financial statements was the best
available surrogate for estimating the SG&A and financial expense rates
because, in addition to producing and selling circular welded non-alloy
pipe, this Mexican producer was also involved in the sale and
distribution of seamless refined copper tube in the Mexican market. See
Petitions at 33, footnote 35;
[[Page 55198]]
see also Supplement to the Petitions, dated October 13, 2009, at 29.
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\2\ Petitioners excluded from these import statistics imports
from countries previously determined by the Department to be NME
countries, imports from Indonesia, the Republic of Korea, and
Thailand as the Department has previously excluded prices from these
countries because they maintain broadly available, non-industry-
specific export subsidies, and imports labeled as being from
``unspecified countries.''
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Based upon a comparison of the prices of the foreign like product
in the home market to the calculated COP of the product, we find
reasonable grounds to believe or suspect that sales of the foreign like
product were made below the COP, within the meaning of section
773(b)(2)(A)(i) of the Act. Accordingly, the Department is initiating a
country-wide cost investigation.
Normal Value Based on Constructed Value
Because it alleged sales below cost, pursuant to sections
773(a)(4), 773(b) and 773(e) of the Act, Petitioners calculated NV
based on constructed value (``CV''). Petitioners calculated CV using
the same COM, SG&A, financial expense and packing figures used to
compute the COP. Petitioners then added a profit rate based on the
fiscal year 2008 financial statements of a Mexican producer of welded
steel pipe. Id.
Fair-Value Comparisons
Based on the data provided by Petitioners, there is reason to
believe that imports of copper pipe and tube from the PRC and Mexico
are being, or are likely to be, sold in the United States at less than
fair value. Based on a comparison of EPs and NV calculated in
accordance with section 773(c) of the Act, the estimated dumping margin
for copper pipe and tube from the PRC is 60.5 percent. See PRC
Initiation Checklist at 10; see also Supplement to the PRC Petition,
dated October 15, 2009, at Exhibit W. Based on a comparison of EPs and
CV calculated in accordance with section 773(a)(4) of the Act, the
estimated dumping margins for copper pipe and tube from Mexico range
from 76.5 percent to 85.7 percent. See Mexico Initiation Checklist at
10, Supplement to the Petitions, dated October 13, 2009, at 31 and
Supplement to the Petitions, dated October 16, 2009 at 3-4, and
Exhibits 55 and 56.
Initiation of Antidumping Investigations
Based upon the examination of the Petitions on copper pipe and tube
from the PRC and Mexico, the Department finds that the Petitions meet
the requirements of section 732 of the Act. Therefore, we are
initiating antidumping duty investigations to determine whether imports
of copper pipe and tube from the PRC and Mexico are being, or are
likely to be, sold in the United States at less than fair value. In
accordance with section 733(b)(1)(A) of the Act and 19 CFR
351.205(b)(1), unless postponed, we will make our preliminary
determinations no later than 140 days after the date of these
initiations.
Targeted-Dumping Allegations
On December 10, 2008, the Department issued an interim final rule
for the purpose of withdrawing 19 CFR 351.414(f) and (g), the
regulatory provisions governing the targeted- dumping analysis in
antidumping duty investigations, and the corresponding regulation
governing the deadline for targeted-dumping allegations, 19 CFR
351.301(d)(5). See Withdrawal of the Regulatory Provisions Governing
Targeted Dumping in Antidumping Duty Investigations, 73 FR 74930
(December 10, 2008). The Department stated that ``{w{time} ithdrawal
will allow the Department to exercise the discretion intended by the
statute and, thereby, develop a practice that will allow interested
parties to pursue all statutory avenues of relief in this area.'' See
id. at 74931.
In order to accomplish this objective, if any interested party
wishes to make a targeted- dumping allegation in either of these
investigations pursuant to section 777A(d)(1)(B) of the Act, such
allegations are due no later than 45 days before the scheduled date of
the country-specific preliminary determination.
Respondent Selection
The PRC
For this investigation, the Department will request quantity and
value information from all known exporters and producers identified
with complete contact information in the Petitions, and Supplement to
the Petitions, dated October 13, 2009, at 13-15. The quantity and value
data received from NME exporters/producers will be used as the basis to
select the mandatory respondents.
The Department requires that the respondents submit a response to
both the quantity and value questionnaire and the separate-rate
application by the respective deadlines in order to receive
consideration for separate-rate status. See Circular Welded Austenitic
Stainless Pressure Pipe from the People's Republic of China: Initiation
of Antidumping Duty Investigation, 73 FR 10221, 10225 (February 26,
2008); Initiation of Antidumping Duty Investigation: Certain Artist
Canvas From the People's Republic of China, 70 FR 21996, 21999 (April
28, 2005). The Department will post the quantity and value
questionnaire along with the filing instructions on the Import
Administration website at http://ia.ita.doc.gov/ia-highlights-and-news.html and a response to the quantity and value questionnaire is due
no later than November 10, 2009.
Mexico
For this investigation, the Department intends to select
respondents based on U.S. Customs and Border Protection (``CBP'') data
for U.S. imports under the Harmonized Tariff Schedule of the United
States (``HTSUS'') numbers 7411.10.1030 and 7411.10.1090, the two HTSUS
categories most specific to the subject merchandise, during the POI. We
intend to release the CBP data under Administrative Protective Order
(``APO'') to all parties with access to information protected by APO
within five days of publication of this Federal Register notice and
make our decision regarding respondent selection within 20 days of
publication of this notice. The Department invites comments regarding
the CBP data and respondent selection within ten days of publication of
this Federal Register notice.
Interested parties must submit applications for disclosure under
APO in accordance with 19 CFR 351.305. Instructions for filing such
applications may be found on the Department's website at http://ia.ita.doc.gov/apo.
Separate Rates
In order to obtain separate-rate status in NME investigations,
exporters and producers must submit a separate-rate status application.
See Policy Bulletin 05.1: Separate-Rates Practice and Application of
Combination Rates in Antidumping Investigations involving Non-Market
Economy Countries (April 5, 2005) (``Separate Rates and Combination
Rates Bulletin''), available on the Department's website at http://ia.ita.doc.gov/policy/bull05-1.pdf. Based on our experience in
processing the separate-rate applications in previous antidumping duty
investigations, we have modified the application for this investigation
to make it more administrable and easier for applicants to complete.
See, e.g., Initiation of Antidumping Duty Investigation: Certain New
Pneumatic Off-the-Road Tires From the People's Republic of China, 72 FR
43591, 43594-95 (August 6, 2007). The specific requirements for
submitting the separate-rate application in this investigation are
outlined in detail in the application itself, which will be available
on the Department's website at http://ia.ita.doc.gov/ia-highlights-and-news.html on the date of publication of this initiation notice in the
Federal Register. The separate-rate application
[[Page 55199]]
will be due 60 days after publication of this initiation notice. For
exporters and producers who submit a separate-rate status application
and subsequently are selected as mandatory respondents, these exporters
and producers will no longer be eligible for consideration for separate
rate status unless they respond to all parts of the questionnaire as
mandatory respondents. As noted in the ``Respondent Selection'' section
above, the Department requires that respondents submit a response to
both the quantity and value questionnaire and the separate-rate
application by the respective deadlines in order to receive
consideration for separate-rate status. The quantity and value
questionnaire will be available on the Department's website at http://ia.ita.doc.gov/ia-highlights-and-news.html on the date of the
publication of this initiation notice in the Federal Register.
Use of Combination Rates in an NME Investigation
The Department will calculate combination rates for certain
respondents that are eligible for a separate rate in this
investigation. The Separate Rates and Combination Rates Bulletin
states:
{w{time} hile continuing the practice of assigning separate rates
only to exporters, all separate rates that the Department will now
assign in its NME investigations will be specific to those producers
that supplied the exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter and all of the
producers which supplied subject merchandise to it during the period of
investigation. This practice applies both to mandatory respondents
receiving an individually calculated separate rate as well as the pool
of non-investigated firms receiving the weighted-average of the
individually calculated rates. This practice is referred to as the
application of ``combination rates'' because such rates apply to
specific combinations of exporters and one or more producers. The cash-
deposit rate assigned to an exporter will apply only to merchandise
both exported by the firm in question and produced by a firm that
supplied the exporter during the period of investigation. See Separate
Rates and Combination Rates Bulletin, at 6 (emphasis added).
Distribution of Copies of the Petitions
In accordance with section 732(b)(3)(A) of the Act and 19 CFR
351.202(f), copies of the public versions of the Petitions have been
provided to the representatives of the Governments of the PRC and
Mexico. Because of the large number of producers/exporters identified
in the Petitions, the Department considers the service of the public
version of the Petitions to the foreign producers/exporters satisfied
by the delivery of the public versions of the Petitions to the
Governments of the PRC and Mexico, consistent with 19 CFR
351.203(c)(2).
ITC Notification
We have notified the ITC of our initiations, as required by section
732(d) of the Act.
Preliminary Determinations by the ITC
The ITC will preliminarily determine, no later than November 16,
2009, whether there is a reasonable indication that imports of copper
pipe and tube from the PRC and Mexico are materially injuring, or
threatening material injury to a U.S. industry. A negative ITC
determination with respect to any country will result in the
investigation being terminated for that country; otherwise, these
investigations will proceed according to statutory and regulatory time
limits.
This notice is issued and published pursuant to section 777(i) of
the Act.
Dated: October 20, 2009.
Ronad K. Lorentzen,
Acting Assistant Secretary for Import Administration.
Appendix I
Scope of the Investigations
For the purpose of these investigations, the products covered are
all seamless circular refined copper pipes and tubes, including redraw
hollows, greater than or equal to 6 inches (152.4 mm) in length and
measuring less than 12.130 inches (308.102 mm) (actual) in outside
diameter (``OD''), regardless of wall thickness, bore (e.g., smooth,
enhanced with inner grooves or ridges), manufacturing process (e.g.,
hot finished, cold-drawn, annealed), outer surface (e.g., plain or
enhanced with grooves, ridges, fins, or gills), end finish (e.g., plain
end, swaged end, flared end, expanded end, crimped end, threaded),
coating (e.g., plastic, paint), insulation, attachments (e.g., plain,
capped, plugged, with compression or other fitting), or physical
configuration (e.g., straight, coiled, bent, wound on spools).
The scope of these investigations covers, but is not limited to,
seamless refined copper pipe and tube produced or comparable to the
American Society for Testing and Materials (``ASTM'') ASTM-B42, ASTM-
B68, ASTM-B75, ASTM-B88, ASTM-B88M, ASTM-B188, ASTM-B251, ASTM-B251M,
ASTM-B280, ASTM-B302, ASTM-B306, ASTM-359, ASTM-B743, ASTM-B819, and
ASTM-B903 specifications and meeting the physical parameters described
therein. Also included within the scope of these investigations are all
sets of covered products, including ``line sets'' of seamless refined
copper tubes (with or without fittings or insulation) suitable for
connecting an outdoor air conditioner or heat pump to an indoor
evaporator unit. The phrase ``all sets of covered products'' denotes
any combination of items put up for sale that is comprised of
merchandise subject to the scope.
``Refined copper'' is defined as: (1) metal containing at least
99.85 percent by weight of copper; or (2) metal containing at least
97.5 percent by weight of copper, provided that the content by weight
of any other element does not exceed the following limits:
------------------------------------------------------------------------
LIMITING CONTENT
ELEMENT PERCENT BY WEIGHT
------------------------------------------------------------------------
Ag - Silver......................................... 0.25
As - Arsenic........................................ 0.5
Cd - Cadmium........................................ 1.3
Cr - Chromium....................................... 1.4
Mg - Magnesium...................................... 0.8
Pb - Lead........................................... 1.5
S - Sulfur.......................................... 0.7
Sn - Tin............................................ 0.8
Te - Tellurium...................................... 0.8
Zn - Zinc........................................... 1.0
Zr - Zirconium...................................... 0.3
Other elements (each)............................... 0.3
------------------------------------------------------------------------
Excluded from the scope of these investigations are all seamless
circular hollows of refined copper less than 12 inches in length whose
OD (actual) exceeds its length.
The products subject to these investigations are currently
classifiable under subheadings 7411.10.1030 and 7411.10.1090 of the
Harmonized Tariff Schedule of the United States (``HTSUS''). Products
subject to these investigations may also enter under HTSUS subheadings
7407.10.1500, 7419.99.5050, 8415.90.8065, and 8415.90.8085. Although
the HTSUS subheadings are provided for convenience and customs
purposes, the written description of the scope of these investigations
is dispositive.
[FR Doc. E9-25855 Filed 10-26-09; 8:45 am]
BILLING CODE 3510-DS-S