[Federal Register Volume 75, Number 50 (Tuesday, March 16, 2010)]
[Notices]
[Pages 12508-12514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5715]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-962]


Certain Potassium Phosphate Salts From the People's Republic of 
China: Preliminary Determination of Sales at Less Than Fair Value

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


DATES: Effective Date: March 16, 2010.
SUMMARY: The Department of Commerce (``the Department'') preliminarily 
determines that certain potassium phosphate salts (``salts'') from the 
People's Republic of China (``PRC'') are being, or are likely to be, 
sold in the United States at less than fair value (``LTFV''), as 
provided in section 733 of the Tariff Act of 1930, as amended 
(``Act''), for the period of investigation (``POI''), January 1, 2009, 
through June 30, 2009. The estimated margins of sales at LTFV are shown 
in the ``Preliminary Determination'' section of this notice. Interested 
parties are invited to comment on this preliminary determination.

FOR FURTHER INFORMATION CONTACT: Irene Gorelik or Katie Marksberry, AD/
CVD Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW., Washington DC 20230; telephone: (202) 482-
6905 or (202) 482-7906, respectively.

SUPPLEMENTARY INFORMATION:

Initiation

    On September 24, 2009, the Department received an antidumping duty 
petition concerning imports of salts from the PRC filed in proper form 
by Performance Products LP (``ICL'') and Prayon, Inc. (collectively, 
``Petitioners'').\1\ The Department initiated this investigation on 
October 14, 2009.\2\
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    \1\ See Petition for the Imposition of Antidumping and 
Countervailing Duties on Imports of Certain Sodium and Potassium 
Phosphate Salts from the People's Republic of China, dated September 
24, 2009 (``Petition'').
    \2\ See Certain Sodium and Potassium Phosphate Salts from the 
People's Republic of China: Initiation of Antidumping Duty 
Investigation, 74 FR 54024 (October 21, 2009), (``Initiation 
Notice'').
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    On November 17, 2009, the United States International Trade 
Commission (``ITC'') issued an affirmative preliminary determination 
that there is a reasonable indication that an industry in the United 
States is threatened with material injury by reason of imports from the 
PRC of dipotassium phosphate (``DKP''), monopotassium phosphate 
(``MKP''), and tetrapotassium pyrophosphate (``TKP''). Also on November 
17, 2009, the ITC issued a negative preliminary determination with 
respect to sodium tripolyphosphate (``STPP'') stating that there is no 
reasonable indication that an industry producing STPP is materially 
injured or threatened with material injury by reason of imports from 
the PRC.\3\ The ITC's determination was

[[Page 12509]]

published in the Federal Register on November 23, 2009.\4\
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    \3\ Please note that after the Initiation Notice was published 
the ITC made a negative determination with respect to Sodium 
Tripolyphosphate, the only sodium phosphate salt included in the 
scope of the investigation. The Department subsequently issued a 
memo stating that the official name of this investigation is now 
Certain Potassium Phosphate Salts from the People's Republic of 
China. See Memorandum to the File, from Katie Marksberry, 
International Trade Compliance Analyst, regarding Certain Potassium 
Phosphate Salts from the People's Republic of China, dated November 
12, 2009.
    \4\ See Investigation Nos. 701-TA-473 and 731-TA-1173 
(Preliminary) Certain Sodium and Potassium Phosphate Salts From 
China, 74 FR 61173 (November 23, 2009).
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Scope Comments

    In accordance with the preamble to our regulations, we set aside a 
period of time for parties to raise issues regarding product coverage 
and encouraged all parties to submit comments within 20 calendar days 
of publication of the Initiation Notice.\5\ We did not receive any 
scope comments.
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    \5\ See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR 27296, 27323 (May 19, 1997). See also Initiation Notice, 74 FR 
at 54024.
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Period of Investigation

    The POI is January 1, 2009, through June 30, 2009. This period 
corresponds to the two most recent fiscal quarters prior to the month 
of the filing of the petition.\6\
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    \6\ See 19 CFR 351.204(b)(1).
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Respondent Selection

    In the Initiation Notice, the Department stated that it intended to 
select respondents based on quantity and value (``Q&V'') 
questionnaires.\7\ On October 15, 2009, the Department requested Q&V 
information from the 60 companies that Petitioners identified as 
potential exporters or producers of salt from the PRC.\8\ Additionally, 
the Department also posted the Q&V questionnaire for this investigation 
on its Web site at http://ia.ita.doc.gov/ia-highlights-and-news.html. 
The Department received timely Q&V responses from eleven exporters/
producers that shipped merchandise under investigation to the United 
States during the POI.
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    \7\ See Initiation Notice, 74 FR at 54027.
    \8\ See Petition at Vol. 2., Exhibit General-12.
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    On November 13, 2009, the Department selected SD BNI(LYG) Co. Ltd. 
(``SD BNI''), and SiChuan Blue Sword Import & Export Co., Ltd. 
(``SiChuan Blue Sword''), as mandatory respondents in this 
investigation.\9\ The Department sent its antidumping duty 
questionnaire to SD BNI and SiChuan Blue Sword on November 16, 2009. On 
December 7, 2009, SiChuan Blue Sword, filed a letter stating that it 
would not participate as a mandatory respondent in this 
investigation.\10\
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    \9\ See Memorandum to James C. Doyle, Director, Office IX, from 
Katie Marksberry, Case Analyst, through Catherine Bertrand, Program 
Manager, Office IX; regarding Antidumping Duty Investigation of 
Certain Potassium Phosphate Salts from the People's Republic of 
China, dated November 13, 2009 (``Respondent Selection Memo'').
    \10\ See December 7, 2009, Letter to the Department from SiChuan 
Blue Sword Import & Export Co., Ltd.
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    On December 18, 2009, the Department determined that because it was 
still early enough in the investigation and because there were no 
requests for voluntary respondent treatment,\11\ the Department would 
select the next largest producer/exporter of certain potassium 
phosphate salts as a mandatory respondent. Therefore the Department 
selected Wenda as a mandatory respondent after an analysis of the Q&V 
responses showed it to be the next largest producer/exporter.\12\ On 
December 18, 2009, the Department sent Wenda the antidumping duty 
questionnaire, and on January 8, 2010, Wenda filed its Section A 
response. In its Section A response, Wenda corrected its Q&V data which 
was used as the basis of respondent selection.\13\ Because the Q&V 
information changed substantially between Wenda's original Q&V 
submission and its Section A response, on February 4, 2010, the 
Department discontinued Wenda's status as a mandatory respondent and 
stated that we would continue to consider its request for separate rate 
status.\14\ On February 5, 2010, the Department received comments from 
Wenda regarding the Department's decision to discontinue its status as 
a mandatory respondent. On February 16, 2010, Petitioners filed 
rebuttal comments in response to Wenda's February 5, 2010, comments, 
and on February 18, 2010, Wenda submitted additional comments in 
response to the Petitioners' most recent comments.
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    \11\ We note that Wenda Co., Ltd. (``Wenda'') filed a request 
for Voluntary Respondent Treatment on October 15, 2009, and withdrew 
its request on November 13, 2009. See letter to the Department from 
Wenda; regarding Sodium and Potassium Phosphate Salts from the 
People's Republic of China, Antidumping Duty Investigation; Request 
for Voluntary Respondent Treatment, dated October 15, 2009 
(``Wenda's Voluntary Request Memo''); see also letter to the 
Department from Wenda; regarding Sodium and Potassium Phosphate 
Salts from the People's Republic of China, Antidumping Duty 
Investigation; Withdrawal of Request for Voluntary Respondent 
Treatment, dated November 13, 2009 (``Wenda's Voluntary Withdrawal 
Memo'').
    \12\ See Memorandum to James C. Doyle, Director, Office IX, from 
Katie Marksberry, Case Analyst, through Catherine Bertrand, Program 
Manager, Office IX; regarding Antidumping Duty Investigation of 
Certain Potassium Phosphate Salts from the People's Republic of 
China: Selection of Additional Mandatory Respondent, dated December 
18, 2009 (``Additional Respondent Selection Memo'').
    \13\ See Respondent Selection Memo.
    \14\ See Memorandum to James C. Doyle, Director, Office IX, from 
Catherine Bertrand, Program Manager, Office IX; Antidumping Duty 
Investigation of Certain Potassium Phosphate Salts from the People's 
Republic of China: Discontinuation of Mandatory Respondent Status 
for Wenda Co. Ltd., dated February 4, 2010. (``Wenda Deselection 
Memo'').
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Additional Case Background

    We received a Section A response on December 7, 2009, from SD 
BNI.\15\ On December 22, 2009, we received an improperly filed Section 
C response from SD BNI. The deadline for the Section D response was 
also December 22, 2009, but no response was filed. We sent a letter to 
SD BNI on December 28, 2009, stating that its Section C response was 
not properly filed and its Section D response was not filed at all by 
the deadline, and we provided another week, until January 4, 2010, for 
SD BNI to re-file its Section C response and to file its Section D 
response.\16\ On January 6, 2010, the Department received an improperly 
filed letter from SD BNI asking for more information as to the reason 
its Section C response was not properly filed and asking for an 
extension to submit its Section C and D responses. In its January 6, 
2010, response SD BNI also asked whether the Department would accept 
current, post-POI production information to respond to the Department's 
NME questionnaires.\17\ On January 7, 2010, the Department granted SD 
BNI a third opportunity to submit its Section C response and detailed 
how to properly file documents--per the Department's regulations. The 
Department also informed SD BNI that it must report the POI production 
and could not base Section D on its own post-POI production. The 
deadline to submit these responses was January 19, 2010.\18\ On January 
20, 2010, the Department received a Section D response from SD BNI, 
which did not fully respond to all of the Department's concerns.\19\ SD 
BNI failed to submit a Section C response by this due date.
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    \15\ See Letter from SD BNI to the Department; regarding Certain 
Potassium Phosphate Salts from China (A-570-962): Section A 
Questionnaire Response, dated December 7, 2009.
    \16\ See Letter to SD BNI (LYG) Co., Ltd. from the Department; 
regarding Certain Potassium Phosphate Salts from the People's 
Republic of China, dated December 28, 2009.
    \17\ See Memorandum to the File; from Katie Marksberry, 
International Trade Compliance Analyst; regarding Certain Potassium 
Phosphate Salts from the People's Republic of China: SD BNI (LYG) 
Co., Ltd. Letter, dated January 11, 2010 (placing SD BNI's 
improperly filed January 6, 2010, letter on the official record of 
the investigation.)
    \18\ See Letter to SD BNI (LYG) Co., Ltd. from the Department; 
regarding Certain Potassium Phosphate Salts from the People's 
Republic of China, dated January 7, 2010.
    \19\ See Letter from SD BNI to the Department; regarding Certain 
Potassium Phosphate Salts from China (A-570-962): Section D 
Questionnaire Response, dated January 20, 2010.

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[[Page 12510]]

Separate Rate Applications

    On November 30, 2009, we received a timely filed joint separate 
rate application from Chengdu Long Tai Biotechnology Co., Ltd. and 
Snow-Apple Group Limted. On December 22, 2009, we received timely filed 
separate rate applications from Wenda, Yunnan Newswift Company Ltd., 
and Tianjin Chengyi International Trading Co., Ltd. See the ``Separate 
Rates'' section below for further discussion on the eligibility for a 
separate rate. On February 3, 2010, the Department issued Wenda a 
supplemental questionnaire requesting additional information. 
Additionally, on February 18, 2010, the Department issued Chengdu Long 
Tai Biotechnology Co., Ltd. and Snow-Apple Group Limited a supplemental 
questionnaire requiring that each company submit an individual 
application. Additionally, on February 18, 2010, the Department issued 
Newswift Company Ltd. a supplemental questionnaire requesting 
additional information. Wenda, Yunnan Newswift Company Ltd., and Snow-
Apple Group Limited submitted timely responses to these questionnaires. 
Chengdu Long Tai did not submit an individual separate rate 
application.

Product Characteristics and Questionnaires

    In the Initiation Notice, the Department asked all parties in this 
investigation for comments on the appropriate product characteristics 
for defining individual products. We did not receive comments from 
interested parties on product characteristics.

Surrogate Country Comments

    On January 7, 2010, the Department determined that India, the 
Philippines, Indonesia, Thailand, Ukraine, and Peru, are countries 
comparable to the PRC in terms of economic development.\20\
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    \20\ See January 8, 2010, Letter to All Interested Parties, 
regarding Antidumping Duty Investigation of Certain Potassium 
Phosphate Salts from the People's Republic of China: Surrogate 
Country List, attaching January 7, 2010, Memorandum to Catherine 
Bertrand, Program Manager, Office 9, AD/CVD Operations, from Kelly 
Parkhill, Acting Director, Office for Policy, regarding Request for 
List of Surrogate Countries for an Antidumping Duty Investigation of 
Certain Potassium Phosphate Salts from the People's Republic of 
China (``Surrogate Country List'').
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    On January 8, 2010, the Department requested comments on surrogate 
country selection from the interested parties in this investigation. On 
January 29, 2010, Petitioners submitted surrogate country comments. No 
other interested parties commented on the selection of a surrogate 
country.

Scope of Investigation

    The phosphate salts covered by this investigation include anhydrous 
Monopotassium Phosphate (MKP), anhydrous Dipotassium Phosphate (DKP) 
and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in 
solution (collectively ``phosphate salts'').
    TKPP, also known as normal potassium pyrophosphate, Diphosphoric 
acid or Tetrapotassium salt, is a potassium salt with the formula 
K4P2O7. The CAS registry number for 
TKPP is 7320-34-5. TKPP is typically 18.7% phosphorus and 47.3% 
potassium. It is generally greater than or equal to 43.0% 
P2O5 content. TKPP is classified under heading 
2835.39.1000, HTSUS.
    MKP, also known as Potassium dihydrogen phosphate, KDP, or 
Monobasic potassium phosphate, is a potassium salt with the formula 
KH2PO4. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7% phosphorus, 28.7% potassium and 52% 
P2O5. MKP is classified under heading 
2835.24.0000, HTSUS.
    DKP, also known as Dipotassium salt, Dipotassium hydrogen 
orthophosphate or Potassium phosphate, dibasic, has a chemical formula 
of K2HPO4. The CAS registry number for DKP is 
7758-11-4. DKP is typically 17.8% phosphorus, 44.8% potassium and 40% 
P2O5 content. DKP is classified under heading 
2835.24.0000, HTSUS.
    The products covered by this investigation include the foregoing 
phosphate salts in all grades, whether food grade or technical grade. 
The product covered by this investigation includes anhydrous MKP and 
DKP without regard to the physical form, whether crushed, granule, 
powder or fines. Also covered are all forms of TKPP, whether crushed, 
granule, powder, fines or solution.
    For purposes of the investigation, the narrative description is 
dispositive, not the tariff heading, American Chemical Society, CAS 
registry number or CAS name, or the specific percentage chemical 
composition identified above.

Non-Market Economy Country

    For purposes of initiation, Petitioners submitted LTFV analyses for 
the PRC as a non-market economy (``NME'').\21\ The Department considers 
the PRC to be a NME country.\22\ In accordance with section 
771(18)(C)(i) of the Act, any determination that a foreign country is 
an NME country shall remain in effect until revoked by the 
administering authority. No party has challenged the designation of the 
PRC as an NME country in this investigation. Therefore, we continue to 
treat the PRC as an NME country for purposes of this preliminary 
determination and calculated normal value in accordance with section 
773(c) of the Act, which applies to all NME countries.
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    \21\ See Initiation Notice, 74 FR 29665 (June 23, 2009).
    \22\ See Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination: Coated Free Sheet 
Paper from the People's Republic of China, 72 FR 30758, 30760 (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) (``CFS Paper'').
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Wenda's Status in This Investigation

    As stated above in the ``Respondent Selection'' section, on 
February 4, 2010, the Department discontinued Wenda's status as a 
mandatory respondent in this investigation. On February 5, 2010, the 
Department received comments from Wenda requesting that we reconsider 
the decision to deselect Wenda as a mandatory respondent, or to allow 
Wenda to participate as a voluntary respondent. Wenda argued the 
Department has the resources to investigate two respondents and that it 
had already cooperated with the Department in submitting its 
questionnaire responses. Additionally, Wenda argued that the Department 
is risking having no calculated margins by deselecting Wenda, that the 
Court of International Trade (``CIT'') has recently determined that we 
are not selecting an adequate number of respondents, and that allowing 
Wenda to participate as a voluntary respondent would not impede the 
Department's investigation.
    On February 16, 2010, the Department received comments from 
Petitioners rebutting Wenda's February 5, 2010 comments. They stated 
that we should not reconsider our decision to deselect Wenda because 
Wenda was not deselected based on the Department's resources, but 
rather based on Wenda's conduct during the investigation. Furthermore, 
Petitioners raised further questions about Wenda's Section A reported 
Q&V, and stated that Wenda withdrew its request to be a voluntary 
respondent. Petitioners argued that both of these are reason to deny 
Wenda's request for reconsideration.
    The Department continues to find that the determination made in the 
February 4, 2010, memorandum discontinuing Wenda's status as a 
mandatory respondent was appropriate. The Department did not deselect 
Wenda based on resource constraints, but rather because Wenda's Section 
A Q&V

[[Page 12511]]

information was significantly different from the information provided 
by Wenda in its Q&V questionnaire response. The Department determined 
that it would be inappropriate to continue to individually investigate 
Wenda as a mandatory respondent because the corrected Q&V information 
indicates that Wenda is actually one of the smallest companies by 
volume.\23\ In other words, the Department selected Wenda as a 
mandatory respondent on the basis of information later shown to be 
significantly incorrect. The Department's procedures and timetables 
rely on the record data provided by interested parties, and when this 
data is shown to be false, other, larger, potential respondents are 
effectively prohibited from participation because of statutory 
deadlines. Thus, it would be inappropriate to review Wenda now that it 
is clear that the information upon which the Department based its 
decision to select Wenda as a mandatory respondent was incorrect.
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    \23\ See Wenda Deselection Memo at 2.
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    Additionally, the Department notes that Wenda does not have a 
request for voluntary treatment on the record of the investigation 
because its original request was withdrawn.\24\ Furthermore, voluntary 
respondents are required to complete responses to the Department's NME 
questionnaire on the due dates for the original mandatory respondents, 
but Wenda did not do this.
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    \24\ See Wenda's Voluntary Request Memo; see also Wenda's 
Voluntary Withdrawal Memo.
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Separate Rates

    In proceedings involving NME countries, there is a rebuttable 
presumption that all companies within the country are subject to 
government control and thus should be assessed a single antidumping 
duty rate.\25\ It is the Department's policy to assign all exporters of 
merchandise subject to investigation in an NME country this single rate 
unless an exporter can demonstrate that it is sufficiently independent 
so as to be entitled to a separate rate.\26\
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    \25\ See 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, 55040 (September 24, 2008) (``PET Film 
LTFV Final'').
    \26\ See Final Determination of Sales at Less Than Fair Value: 
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 
1991) (``Sparklers''); see also Notice of Final Determination of 
Sales at Less Than Fair Value: Silicon Carbide From the People's 
Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide''), 
and Sec.  351.107(d) of the Department's regulations.
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    In the Initiation Notice, the Department notified parties of the 
application process by which exporters and producers may obtain 
separate rate status in NME investigations.\27\ The process requires 
exporters and producers to submit a separate-rate status application. 
The Department's practice is discussed further in Policy Bulletin 05.1: 
Separate-Rates Practice and Application of Combination Rates in 
Antidumping Investigations involving Non-Market Economy Countries, 
(April 5, 2005), (``Policy Bulletin 05.1''), available at http://ia.ita.doc.gov/policy/bull05-1.pdf.\28\
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    \27\ See Initiation Notice, 74 FR 29665.
    \28\ The Policy Bulletin 05.1 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 Policy Bulletin 05.1 at 6.
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    Yunnan Newswift, Tianjin Chengyi, Snow-Apple, and Wenda 
(hereinafter referred to as ``Separate Rate Companies''), have provided 
company-specific information to demonstrate that they operate 
independently of de jure and de facto government control or are wholly 
foreign owned, and therefore satisfy the standards for the assignment 
of a separate rate. For each of the Separate Rate Companies we are 
granting the separate rate only to the name of the company that appears 
on the English translated copy of the business license in each 
company's SRA.\29\
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    \29\ See Certain Frozen Warmwater Shrimp from the Socialist 
Republic of Vietnam: Final Results and Final Partial Rescission of 
Antidumping Duty Administrative Review, 74 FR 47191 (September 15, 
2009); and accompanying Issues and Decision Memorandum at Comment 
17.
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    We have considered whether each PRC company that submitted a 
complete application or complete Section A Response as a mandatory 
respondent, is eligible for a separate rate. The Department's separate 
rate test is not concerned, in general, with macroeconomic/border-type 
controls, e.g., export licenses, quotas, and minimum export prices, 
particularly if these controls are imposed to prevent dumping.\30\ The 
test focuses, rather, on controls over the investment, pricing, and 
output decision-making process at the individual firm level.\31\
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    \30\ See Notice of Final Determination of Sales at Less Than 
Fair Value: Certain Preserved Mushrooms from the People's Republic 
of China, 63 FR 72255, 72256 (December 31, 1998).
    \31\ See Notice of Final Determination of Sales at Less than 
Fair: Value Certain Cut-to-Length Carbon Steel Plate from Ukraine, 
62 FR 61754, 61758 (November 19, 1997), and Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished, from the People's 
Republic of China: Final Results of Antidumping Duty Administrative 
Review, 62 FR 61276, 61279 (November 17, 1997).
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    To establish whether a firm is sufficiently independent from 
government control of its export activities to be entitled to a 
separate rate, the Department analyzes each entity exporting the 
merchandise under investigation under a test arising from the 
Sparklers, as further developed in Silicon Carbide.\32\ In accordance 
with the separate rate criteria, the Department assigns separate rates 
in NME cases only if respondents can demonstrate the absence of both de 
jure and de facto governmental control over export activities.
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    \32\ See Final Determination of Sales at Less Than Fair Value: 
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 
1991) (``Sparklers''); see also Notice of Final Determination of 
Sales at Less Than Fair Value: Silicon Carbide From the People's 
Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon Carbide'').
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1. 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.\33\
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    \33\ See Sparklers, 56 FR at 20589.
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    The evidence provided by the Separate Rate Companies supports a 
preliminary finding of de jure absence of governmental control based on 
the following: (1) An absence of restrictive stipulations associated 
with the individual exporter's business and export licenses; (2) the 
applicable legislative enactments decentralizing control of the 
companies; and (3) any other formal measures by the government 
decentralizing control of companies. See, e.g., Yunnan Newswift's 
December 22, 2009, SRA at 6-8; and Tianjin Chengyi's SRA at 6-9.

2. Absence of De Facto Control

    Typically the Department considers four factors in evaluating 
whether each respondent is subject to de facto governmental control of 
its export functions: (1) Whether the export prices are set by or are 
subject to the approval of a governmental agency; (2) whether the 
respondent has authority to

[[Page 12512]]

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 independent 
decisions regarding disposition of profits or financing of losses.\34\ 
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 governmental control which would preclude the Department from 
assigning separate rates.
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    \34\ 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).
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    We determine that, for the Separate Rate Companies, the evidence on 
the record supports a preliminary finding of de facto absence of 
governmental control based on record statements and supporting 
documentation showing the following: (1) Each exporter sets its own 
export prices independent of the government and without the approval of 
a government authority; (2) each exporter retains the proceeds from its 
sales and makes independent decisions regarding disposition of profits 
or financing of losses; (3) each exporter has the authority to 
negotiate and sign contracts and other agreements; and (4) each 
exporter has autonomy from the government regarding the selection of 
management. See, e.g., Yunnan Newswift's December 22, 2009, SRA at 9-
15; and Tianjin Chengyi's SRA at 9-14.

3. Wholly Foreign-Owned

    In their separate-rate applications, two separate rate companies, 
Wenda and Snow-Apple, reported that they were wholly owned by 
individuals or companies located in a market economy country during the 
POI.\35\ Therefore, because they reported being wholly foreign-owned 
during the POI, and we have no evidence indicating that they were under 
the control of the PRC, a separate rate analysis is not necessary to 
determine whether these companies are independent from government 
control.\36\ Accordingly, we have preliminarily granted a separate rate 
to these companies.
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    \35\ See Wenda's December 22, 2009, SRA at 7; see also Snow-
Apple's February 24, 2010, SRA at 6.
    \36\ See Notice of Final Determination of Sales at Less Than 
Fair Value: Creatine Monohydrate From the People's Republic of 
China, 64 FR 71104-71105 (December 20, 1999) (where the respondent 
was wholly foreign-owned, and thus, qualified for a separate rate).
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    The evidence placed on the record of this investigation by the 
Separate Rate Companies, demonstrates an absence of de jure and de 
facto government control with respect to each of the exporter's exports 
of the merchandise under investigation, in accordance with the criteria 
identified in Sparklers and Silicon Carbide. As a result, we have 
granted the Separate Rate Companies a margin based on the Petition 
margins.

Application of Adverse Facts Available, the PRC-Wide Entity and PRC-
Wide Rate

    The Department has data that indicate there were more exporters of 
salts from the PRC than those indicated in the response to our request 
for Q&V information during the POI. See Respondent Selection 
Memorandum. We issued our request for Q&V information to sixty 
potential Chinese exporters of the merchandise under investigation, in 
addition to posting the Q&V questionnaire on the Department's Web site. 
While information on the record of this investigation indicates that 
there are other exporters/producers of salts in the PRC, we received 
only eleven filed Q&V responses. Although all exporters were given an 
opportunity to provide Q&V information, not all exporters provided a 
response to the Department's Q&V letter.
    Furthermore, Sichuan Blue Sword, which responded to the 
Department's Q&V questionnaire and reported shipments during the POI, 
and was chosen by the Department as a mandatory respondent, did not 
respond to the Department's full antidumping duty questionnaire. 
Therefore, the Department has preliminarily determined that there were 
exporters/producers of the merchandise under investigation during the 
POI from the PRC that did not respond to the Department's request for 
information. We have treated these PRC exporters/producers, including 
Sichuan Blue Sword, as part of the PRC-wide entity because they did not 
qualify for a separate rate.\37\
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    \37\ See, e.g., 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, 70 FR 77121, 
77128 (December 29, 2005), unchanged in Final Determination of Sales 
at Less Than Fair Value and Final Partial Affirmative Determination 
of Critical Circumstances: Diamond Sawblades and Parts Thereof from 
the People's Republic of China, 71 FR 29303 (May 22, 2006).
---------------------------------------------------------------------------

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information that has been requested by the Department, 
(B) fails to provide such information in a timely manner or in the form 
or manner requested, subject to subsections 782(c)(1) and (e) of the 
Act, (C) significantly impedes a proceeding under the antidumping 
statute, or (D) provides such information but the information cannot be 
verified, the Department shall, subject to subsection 782(d) of the 
Act, use facts otherwise available in reaching the applicable 
determination.
    Information on the record of this investigation indicates that the 
PRC-wide entity was non-responsive. Certain companies did not respond 
to our questionnaire requesting Q&V information or the Department's 
request for more information. As a result, pursuant to section 
776(a)(2)(A) of the Act, we find that the use of facts available 
(``FA'') is appropriate to determine the PRC-wide rate.\38\
---------------------------------------------------------------------------

    \38\ See Notice of Preliminary Determination of Sales at Less 
Than Fair Value, Affirmative Preliminary Determination of Critical 
Circumstances and Postponement of Final Determination: Certain 
Frozen Fish Fillets from the Socialist Republic of Vietnam, 68 FR 
4986 (January 31, 2003), unchanged in Notice of Final Determination 
of Sales at Less Than Fair Value and Affirmative Critical 
Circumstances: Certain Frozen Fish Fillets from the Socialist 
Republic of Vietnam, 68 FR 37116 (June 23, 2003).
---------------------------------------------------------------------------

    Section 776(b) of the Act provides that, in selecting from among 
the facts otherwise available, the Department may employ an adverse 
inference if an interested party fails to cooperate by not acting to 
the best of its ability to comply with requests for information.\39\ We 
find that, because the PRC-wide entity did not respond to our requests 
for information, it has failed to cooperate to the best of its ability. 
Therefore, the Department preliminarily finds that, in selecting from 
among the facts available, an adverse inference is appropriate.
---------------------------------------------------------------------------

    \39\ See Statement of Administrative Action, accompanying the 
Uruguay Round Agreements Act (``URAA''), H.R. Rep. No. 103-316, 870 
(1994) (``SAA''); see also Notice of Final Determination of Sales at 
Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality 
Steel Products from the Russian Federation, 65 FR 5510, 5518 
(February 4, 2000).
---------------------------------------------------------------------------

    When employing an adverse inference, section 776 of the Act 
indicates that the Department may rely upon information derived from 
the petition, the final determination from the LTFV investigation, a 
previous administrative review, or any other information placed on the 
record. In selecting a rate for AFA, the Department selects a rate that 
is sufficiently adverse to ensure that the uncooperative party does not 
obtain a more favorable result by failing to cooperate than if it had 
fully cooperated. It is the Department's practice to select, as AFA, 
the higher of the (a) highest margin alleged in the

[[Page 12513]]

petition, or (b) the highest calculated rate of any respondent in the 
investigation.\40\ As AFA, we have preliminarily assigned to the PRC-
wide entity a rate of 95.40 percent, which is the highest margin 
alleged in the Petition.\41\ The Department preliminarily determines 
that this information is the most appropriate from the available 
sources to effectuate the purposes of AFA.
---------------------------------------------------------------------------

    \40\ See Final Determination of Sales at Less Than Fair Value: 
Certain Cold-Rolled Carbon Quality Steel Products from the People's 
Republic of China, 65 FR 34660 (May 21, 2000) and accompanying 
Issues and Decision Memorandum at Comment 1.
    \41\ The Department notes that in determining the AFA margin, 
the Department did not take into account the margins listed in the 
petition for STPP.
---------------------------------------------------------------------------

Application of Adverse Facts Available for SD BNI

    As detailed above in the ``Additional Case Background'' Section, 
despite numerous attempts by the Department to provide additional 
instruction and three additional opportunites for SD BNI to file a 
Section C response, there is not a Section C response on the record of 
the investigation. Therefore, pursuant to sections 776(a)(2)(A), (B), 
and (C) of the Act, we are applying facts otherwise available to SD BNI 
because the Department finds that the information necessary to 
calculate an accurate and otherwise reliable margin is not available on 
the record with respect to SD BNI. Additionally, the Department finds 
that SD BNI failed to provide the information requested by the 
Department in a timely manner and in the form required, and 
significantly impeded the Department's ability to calculate an accurate 
margin for SD BNI. The Department is unable to calculate a margin 
without a Section C response, requiring the application of facts 
otherwise available to SD BNI for the purpose of this preliminary 
determination.
    In addition, in accordance with section 776(b) of the Act, the 
Department is applying an adverse inference in selecting the facts 
available rate as it has determined that SD BNI did not act to the best 
of its ability to cooperate with the Department and significantly 
impeded this investigation by not submitting a properly filed Section C 
response after the Department provided three opportunities for SD BNI 
to do so. Therefore, because SD BNI was selected as a mandatory 
respondent and failed to submit the information required, SD BNI will 
not receive a separate rate and will remain part of the PRC-wide 
entity.

Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information in using the facts otherwise available, it 
must, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. We have 
interpreted ``corroborate'' to mean that we will examine the 
reliability and relevance of the information submitted.\42\ Because 
there are no margins calculated for the mandatory respondents, to 
corroborate the 95.40 percent margin used as AFA for the China-wide 
entity, to the extent appropriate information was available, we are 
affirming our pre-initiation analysis of the adequacy and accuracy of 
the information in the petition.\43\ During our pre-initiation 
analysis, we examined evidence supporting the calculations in the 
petition and the supplemental information provided by Petitioner prior 
to initiation to determine the probative value of the margins alleged 
in the petition. During our pre-initiation analysis, we examined the 
information used as the basis of export price and normal value (``NV'') 
in the petition, and the calculations used to derive the alleged 
margins. Also during our pre-initiation analysis, we examined 
information from various independent sources provided either in the 
petition or, based on our requests, in supplements to the petition, 
which corroborated key elements of the export price and NV 
calculations.\44\ We received no comments as to the relevance or 
probative value of this information. Therefore, the Department finds 
that the rates derived from the petition and used for purposes of 
initiation have probative value for the purpose of being selected as 
the AFA rate assigned to the PRC-wide entity.
---------------------------------------------------------------------------

    \42\ See, e.g. Certain Cold-Rolled Flat-Rolled Carbon-Quality 
Steel Products From Brazil: Notice of Final Determination of Sales 
at Less Than Fair Value, 65 FR 5554, 5568 (February 4, 2000).
    \43\ See Antidumping Investigation Initiation Checklist: Certain 
Sodium and Potassium Phosphate Salts (``Initiation Checklist'').
    \44\ See id.
---------------------------------------------------------------------------

Margin for the Separate Rate Companies

    The Department received timely and complete separate rate 
applications from the Separate Rate Companies. The evidence placed on 
the record of this investigation by the Separate Rate Companies 
demonstrates an absence of de jure and de facto government control with 
respect to each of the exporter's exports of the merchandise under 
investigation, in accordance with the criteria identified in Sparklers 
and Silicon Carbide. As a result, for the purposes of this preliminary 
determination, we have granted the Separate Rate Companies an anti-
dumping duty margin based on an average of the rates submitted in the 
Petition.\45\ This rate is 64.55 percent.
---------------------------------------------------------------------------

    \45\ The Department notes that in calculating the average 
margin, the Department did not take into account the margins listed 
in the petition for STPP.
---------------------------------------------------------------------------

Combination Rates

    In the Initiation Notice, the Department stated that it would 
calculate combination rates for certain respondents that are eligible 
for a separate rate in this investigation. See Initiation Notice, 74 FR 
at 54024. This practice is described in Policy Bulletin 05.1, available 
at http://ia.ita.doc.gov/.

Preliminary Determination

    The preliminary weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                             Weighted-
             Exporter                     Supplier        average margin
------------------------------------------------------------------------
Snow-Apple Group Limited..........  Chengdu Long Tai               69.58
                                     Biotechnology Co.,
                                     Ltd.
Tianjin Chengyi International       Zhenjiang Dantu                69.58
 Trading (Tianjin) Co., Limited.     Guangming Auxiliary
                                     Material Factory.
Tianjin Chengyi International       Sichuan Shifang                69.58
 Trading (Tianjin) Co., Limited.     Hongsheng Chemicals
                                     Co., Ltd.
Wenda Co., Ltd....................  Thermphos (China)              69.58
                                     Food Additive Co.,
                                     Ltd.
Yunnan Newswift Company Ltd.......  Guangxi Yizhou                 69.58
                                     Yisheng Fine
                                     Chemicals Co., Ltd.
Yunnan Newswift Company Ltd.......  Mainzhu Hanwang                69.58
                                     Mineral Salt
                                     Chemical Co., Ltd.
Yunnan Newswift Company Ltd.......  Sichuan Shengfeng              69.58
                                     Phosphate Chemical
                                     Co., Ltd.
PRC-Wide **.......................  ....................           95.40
------------------------------------------------------------------------
** In this case, the PRC-wide rate includes Sichuan Blue Sword Import
  and Export Co., Ltd. and SD BNI(LYG) Co. Ltd.


[[Page 12514]]

Disclosure

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

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we will instruct CBP 
to suspend liquidation of all entries of merchandise subject to this 
investigation, entered, or withdrawn from warehouse, for consumption on 
or after the date of publication of this notice in the Federal 
Register. For the exporter/producer combinations listed in the chart 
above, the following cash deposit requirements will be effective upon 
publication of the preliminary determination for all shipments of 
merchandise under consideration entered or withdrawn from warehouse, 
for consumption on or after publication date: (1) The rate for the 
exporter/producer combinations listed in the chart above will be the 
rate we have determined in this preliminary determination; (2) for all 
PRC exporters of merchandise subject to this investigation that have 
not received their own rate, the cash-deposit rate will be the PRC-wide 
rate; (3) for all non-PRC exporters of merchandise subject to this 
investigation that have not received their own rate, the cash-deposit 
rate will be the rate applicable to the PRC exporter/producer 
combination that supplied that non-PRC exporter. These suspension-of-
liquidation instructions will remain in effect until further notice. We 
will instruct CBP to require a cash deposit or the posting of a bond 
equal to the weighted-average amount by which the NV exceeds U.S. 
price, as indicated above. The suspension of liquidation will remain in 
effect until further notice.

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our preliminary affirmative determination of sales at less than 
fair value. Section 735(b)(2) of the Act requires the ITC to make its 
final determination as to whether the domestic industry in the United 
States is materially injured, or threatened with material injury, by 
reason of imports of phosphate salts, or sales (or the likelihood of 
sales) for importation, of the merchandise under investigation within 
45 days of our final determination.

Public Comment

    Case briefs or other written comments on the preliminary 
determination may be submitted to the Assistant Secretary for Import 
Administration no later than 30 days after the date of publication of 
this preliminary determination. See 19 CFR 351.309(c)(1)(i). Rebuttal 
briefs, the content of which is limited to the issues raised in the 
case briefs, must be filed within five days after the deadline for the 
submission of case briefs. See 19 CFR 351.309(d). A list of authorities 
used and an executive summary of issues should accompany any briefs 
submitted to the Department. This summary should be limited to five 
pages total, including footnotes.
    In accordance with section 774 of the Act, and if requested, we 
will hold a public hearing, to afford interested parties an opportunity 
to comment on arguments raised in case or rebuttal briefs. If a request 
for a hearing is made, we intend to hold the hearing shortly after the 
deadline of submission of rebuttal briefs at the U.S. Department of 
Commerce, 14th Street and Constitution Ave, NW., Washington, DC 20230, 
at a time and location to be determined. Parties should confirm by 
telephone the date, time, and location of the hearing two days before 
the scheduled date.
    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, U.S. Department of Commerce, Room 
1870, within 30 days after the date of publication of this notice. See 
19 CFR 351.310(c). Requests should contain the party's name, address, 
and telephone number, the number of participants, and a list of the 
issues to be discussed. At the hearing, each party may make an 
affirmative presentation only on issues raised in that party's case 
brief and may make rebuttal presentations only on arguments included in 
that party's rebuttal brief. This determination is issued and published 
in accordance with sections 733(f) and 777(i)(1) of the Act.

    Dated: March 10, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-5715 Filed 3-15-10; 8:45 am]
BILLING CODE 3510-DS-P