[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Notices]
[Pages 46030-46033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18912]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-864]


Pure Magnesium in Granular Form From the People's Republic of 
China: Preliminary Results of Antidumping Duty Administrative Review

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

DATES: August 2, 2012.


[[Page 46031]]


SUMMARY: The U.S. Department of Commerce (``the Department'') is 
conducting an administrative review of the antidumping duty order on 
pure magnesium in granular form (``pure granular magnesium'') from the 
People's Republic of China (``PRC'') with respect to one producer/
exporter for the period of review (``POR'') November 1, 2010, through 
October 31, 2011.\1\ If these preliminary results are adopted in our 
final results of this review, we will instruct U.S. Customs and Border 
Protection (``CBP'') to assess antidumping duties on all appropriate 
entries of subject merchandise during the period of review.
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    \1\ See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Request for Revocation In Part, 76 FR 
82268 (December 30, 2011) (``Initiation'').
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    We intend to issue the final results no later than 120 days from 
the date of publication of this notice, pursuant to section 
751(a)(3)(A) of the Tariff Act of 1930, as amended (``the Act''). 
Interested parties are invited to comment on these preliminary results.

FOR FURTHER INFORMATION CONTACT: Eve Wang, AD/CVD Operations, Office 8, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue NW., 
Washington, DC 20230; telephone: (202) 482-6231.

SUPPLEMENTARY INFORMATION:

Background

    On November 1, 2011, the Department published in the Federal 
Register a notice of opportunity to request an administrative review of 
the antidumping duty order on pure granular magnesium from the PRC for 
the period from November 1, 2010, through October 31, 2011.\2\ On 
November 20, 2011, the Department received a timely request from US 
Magnesium LLC (``Petitioner''), in accordance with 19 CFR 351.213(b), 
for an administrative review of China Minmetals Non-Ferrous Metals Co., 
Ltd. (``CMN'') in the aforementioned proceeding. On December 30, 2011, 
in accordance with section 751(a) of the Act, the Department published 
in the Federal Register the initiation notice of the antidumping duty 
administrative review with respect to CMN.\3\
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    \2\ See Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity To Request Administrative 
Review, 76 FR 67413 (November 1, 2011).
    \3\ See Initiation.
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    In the Initiation, the Department stated that if a producer or 
exporter named in that notice of initiation had no exports, sales, or 
entries during the period of review (``POR''), it must notify the 
Department within 60 days of publication of the Initiation.\4\ On March 
2, 2012, the Department issued a questionnaire to CMN. On March 12, 
2012, CMN emailed the Department, stating that it had not exported any 
pure granular magnesium and thus may not be able to provide the 
information requested in the Department's questionnaire.\5\ The 
Department replied that the deadline for the submission of notices of 
no-shipments had passed, and that the Department would address the 
treatment of CMN in the preliminary results of this review.\6\ CMN did 
not submit a response to the Department's questionnaire.
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    \4\ The deadline for a party to submit its notice of no sales 
was February 28, 2012.
    \5\ See the Department's memo to the file, ``2011-2012 
Administrative Review of Pure Magnesium in Granular Form from the 
People's Republic of China: Email Communication from China Minmetals 
Non-Ferrous Metals Co., Ltd.'' dated April 20, 2012. We note that 
the Department does not generally accept email communications from a 
party as the party's response to the Department's questionnaire, and 
we limit those communications to only general procedural questions.
    \6\ Id.
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Scope of the Order

    The scope of this order excludes pure magnesium that is already 
covered by an existing order \7\ on pure magnesium in ingot form, and 
currently classifiable under item numbers 8104.11.00 and 8104.19.00 of 
the Harmonized Tariff Schedule of the United States (``HTSUS'').
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    \7\ See Notice of Antidumping Duty Orders: Pure Magnesium From 
the People's Republic of China, the Russian Federation and Ukraine; 
Notice of Amended Final Determination of Sales at Less Than Fair 
Value: Antidumping Duty Investigation of Pure Magnesium From the 
Russian Federation, 60 FR 25691 (May 12, 1995).
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    The scope of this order includes imports of pure magnesium 
products, regardless of chemistry, including, without limitation, 
raspings, granules, turnings, chips, powder, and briquettes, except as 
noted above.
    Pure magnesium includes: (1) Products that contain at least 99.95 
percent primary magnesium, by weight (generally referred to as ``ultra-
pure'' magnesium); (2) products that contain less than 99.95 percent 
but not less than 99.8 percent primary magnesium, by weight (generally 
referred to as ``pure'' magnesium); (3) chemical combinations of pure 
magnesium and other material(s) in which the pure magnesium content is 
50 percent or greater, but less than 99.8 percent, by weight, that do 
not conform to an ``ASTM Specification for Magnesium Alloy'' \8\ 
(generally referred to as ``off-specification pure'' magnesium); and 
(4) physical mixtures of pure magnesium and other material(s) in which 
the pure magnesium content is 50 percent or greater, but less than 99.8 
percent, by weight. Excluded from this order are mixtures containing 90 
percent or less pure magnesium by weight and one or more of certain 
non-magnesium granular materials to make magnesium-based reagent 
mixtures. The non-magnesium granular materials of which the Department 
is aware used to make such excluded reagents are: Lime, calcium metal, 
calcium silicon, calcium carbide, calcium carbonate, carbon, slag 
coagulants, fluorspar, nephaline syenite, feldspar, aluminum, alumina 
(Al2O3), calcium aluminate, soda ash, 
hydrocarbons, graphite, coke, silicon, rare earth metals/mischmetal, 
cryolite, silica/fly ash, magnesium oxide, periclase, ferroalloys, 
dolomitic lime, and colemanite. A party importing a magnesium-based 
reagent which includes one or more materials not on this list is 
required to seek a scope clarification from the Department before such 
a mixture may be imported free of antidumping duties.
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    \8\ The meaning of this term is the same as that used by the 
American Society for Testing and Materials in its Annual Book of 
ASTM Standards: Volume 01.02 Aluminum and Magnesium Alloys.
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    The merchandise subject to this order is currently classifiable 
under item 8104.30.00 of the HTSUS. Although the HTSUS subheading is 
provided for convenience and customs purposes, our written description 
of the scope of this order is dispositive.

Separate Rate

    Pursuant to section 771(18)(C) of the Act, a designation of a 
country as an NME remains in effect until it is revoked by the 
Department. Accordingly, there is a rebuttable presumption that all 
companies within the PRC are subject to government control and, thus, 
should be assessed a single antidumping duty rate.\9\ In the 
Initiation, the Department notified parties of the application process 
by which exporters and producers may obtain separate rate status in NME 
proceedings.\10\ It is the Department's policy to assign all exporters 
of the merchandise subject to review in NME countries a single rate 
unless an exporter can affirmatively demonstrate an absence of 
government control, both in law (de jure) and in fact (de facto),

[[Page 46032]]

with respect to exports. To establish whether a company is sufficiently 
independent to be entitled to a separate, company-specific rate, the 
Department analyzes each exporting entity in an NME country under the 
test established in Sparklers,\11\ as amplified by Silicon Carbide.\12\ 
However, if the Department determines that a company is wholly foreign-
owned or located in a market economy (``ME''), then a separate rate 
analysis is not necessary to determine whether it is independent from 
government control.\13\
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    \9\ See Notice of Final Determination of Sales at Less Than Fair 
Value, and Affirmative Critical Circumstances, In Part: Certain 
Lined Paper Products From the People's Republic of China, 71 FR 
53079, 53082 (September 8, 2006); 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, 29307 (May 22, 2006).
    \10\ See Initiation.
    \11\ See Final Determination of Sales at Less Than Fair Value: 
Sparklers From the People's Republic of China, 56 FR 20588 (May 6, 
1991).
    \12\ See 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).
    \13\ See, e.g., Final Results of Antidumping Duty Administrative 
Review: Petroleum Wax Candles From the People's Republic of China, 
72 FR 52355, 52356 (September 13, 2007).
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    CMN did not submit a separate rate application or certification to 
demonstrate its eligibility for separate rate status. As stated in the 
Initiation, ``[a]ll firms listed below that wish to qualify for 
separate-rate status in the administrative reviews involving NME 
countries must complete, as appropriate, either a separate-rate 
application or certification, as described below.'' \14\ CMN also 
failed to respond to the Department's questionnaire. Based on these 
facts, we determined that CMN has not demonstrated entitlement to a 
separate rate and is now part of the PRC-wide entity.
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    \14\ See Initiation, 76 FR at 82269.
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The PRC-Wide Entity and Use of Adverse Facts Available (``AFA'')

    Sections 776(a) of the Act provide that the Department shall apply 
``facts otherwise available'' if (1) necessary information is not on 
the record, or (2) an interested party or any other person: (A) 
Withholds information that has been requested; (B) fails to provide 
information within the deadlines established, or in the form and manner 
requested by the Department, subject to subsections (c)(1) and (e) of 
section 782 of the Act; (C) significantly impedes a proceeding; or (D) 
provides information that cannot be verified as provided by section 
782(i) of the Act.
    Where the Department determines that a response to a request for 
information does not comply with the request, section 782(d) of the Act 
provides that the Department will so inform the party submitting the 
response and will, to the extent practicable, provide that party the 
opportunity to remedy or explain the deficiency. If the party fails to 
remedy the deficiency within the applicable time limits, subject to 
section 782(e) of the Act, the Department may disregard all or part of 
the original and subsequent responses, as appropriate. Section 782(e) 
of the Act provides that the Department ``shall not decline to consider 
information that is submitted by an interested party and is necessary 
to the determination but does not meet all applicable requirements 
established by the administering authority'' if the information is 
timely, can be verified, is not so incomplete that it cannot serve as a 
reliable basis, and if the interested party acted to the best of its 
ability in providing the information. Where all of these conditions are 
met, the statute requires the Department to use the information if it 
can do so without undue difficulties.
    Section 776(b) of the Act further provides that the Department may 
use an adverse inference in applying the facts otherwise available when 
a party has failed to cooperate by not acting to the best of its 
ability to comply with a request for information. Section 776(b) of the 
Act also authorizes the Department to use as AFA information derived 
from the petition, the final determination, a previous administrative 
review, or other information placed on the record.
    Because we have determined that CMN is not entitled to a separate 
rate and is now part of the PRC-wide entity, the PRC-wide entity is now 
under review. The PRC-wide entity did not respond to our requests for 
information and, as such, we find it appropriate under section 
776(a)(2) of the Act to use facts available as the basis for these 
preliminary results. Because the PRC-wide entity provided no 
information, we determine that sections 782(d) and (e) of the Act are 
not relevant to our analysis. We further find that because the PRC-wide 
entity failed to respond to the Department's requests for information, 
it failed to cooperate by not acting to the best of its ability to 
comply with the Department's requests. Therefore, because the PRC-wide 
entity did not cooperate to the best of its ability in the proceeding, 
the Department finds it appropriate to use an adverse inference in 
making its determination, pursuant to section 776(b) of the Act.

Selection of the Adverse Facts Available Rate

    In deciding what rate to apply as AFA, section 776(b) of the Act 
and 19 CFR 351.308(c)(1) authorize the Department to rely on 
information derived from (1) The petition, (2) a final determination in 
the investigation, (3) any previous review or determination, or (4) any 
other information placed on the record. Because of the PRC-wide 
entity's failure to cooperate in this administrative review, we have 
preliminarily assigned the PRC-wide entity an AFA rate of 305.56 
percent, which is the PRC-wide rate determined in the investigation of 
pure magnesium in granular form from the PRC.\15\ This is the highest 
rate on the record for all segments of this proceeding.\16\
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    \15\ See Antidumping Duty Order: Pure Magnesium in Granular Form 
From the People's Republic of China, 66 FR 57936 (November 19, 
2001).
    \16\ See id.
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Corroboration of Facts Available

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information rather than on information obtained in the 
course of an investigation or review, it shall to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at the Department's disposal. Secondary information is 
described in the Statement of Administrative Action (``SAA'') as 
``information derived from the petition that gave rise to the 
investigation or review, the final determination concerning the subject 
merchandise, or any previous review under section 751 concerning the 
subject merchandise.'' \17\ The SAA explains that ``corroborate'' means 
to determine that the information used has probative value. The 
Department has determined that to have probative value, information 
must be reliable and relevant.\18\ The SAA also explains that 
independent sources used to corroborate such evidence may include, for 
example, published price lists, official import statistics and customs 
data, and information obtained from interested parties during the 
particular investigation.\19\
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    \17\ See The Statement of Administrative Action, reprinted in 
H.R. Doc. No. 103-216, at 870 (1994) (``SAA'') at 870.
    \18\ See Tapered Roller Bearings and Parts Thereof, Finished and 
Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or 
Less in Outside Diameter, and Components Thereof, From Japan; 
Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996), unchanged in Tapered Roller Bearings and Parts 
Thereof, Finished and Unfinished, From Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outside Diameter, and Components 
Thereof, From Japan; Final Results of Antidumping Duty 
Administrative Reviews and Termination in Part, 62 FR 11825 (March 
13, 1997).
    \19\ See SAA at 870; see also Notice of Final Determination of 
Sales at Less Than Fair Value: Live Swine From Canada, 70 FR 12181, 
12183 (March 11, 2005).
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    As stated above, we are applying as AFA the highest and only rate 
for the

[[Page 46033]]

PRC-wide entity from any segment of this administrative proceeding. The 
AFA rate of 305.56 percent selected here is from the investigation.\20\ 
This rate was calculated based on information contained in the 
petition, which was corroborated for the final determination. No 
additional information has been presented in the current review which 
calls into question the reliability or relevance of the information and 
the Department's corroboration. The Department's corroboration analysis 
of a PRC-wide rate was affirmed by the Court's recent decision in The 
Watanabe Group v. United States, 2010 Lexis 144; Slip Op. 2010-139 (Ct. 
Int'l Trade Dec. 22, 2010), where the Court held that with no evidence 
specific to the review and no evidence questioning the prior 
corroboration of the PRC-wide rate, the Department may rely on the 
corroborated rate from an earlier segment of the proceeding because 
doing so is based on a reasonable inference from the current record.
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    \20\ See Antidumping Duty Order: Pure Magnesium in Granular Form 
From the People's Republic of China, 66 FR 57936 (November 19, 
2001).
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    Therefore, the Department finds that the information continues to 
be reliable and relevant and therefore the rate is corroborated.

Preliminary Results

    The Department has determined that the following preliminary 
dumping margin exists for the period November 1, 2010, through October 
31, 2011:

------------------------------------------------------------------------
                                                            Weighted-
                 Producer/manufacturer                   average  margin
                                                             (percent)
------------------------------------------------------------------------
PRC-Wide Entity (which includes CMN)...................          305.56
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Assessment Rates

    Upon issuance of the final results, the Department will determine, 
and CBP shall assess, antidumping duties on all appropriate entries 
covered by this review. The Department intends to issue assessment 
instructions to CBP 15 days after the publication date of the final 
results of this review. We intend to instruct CBP to liquidate entries 
containing subject merchandise exported by the PRC-wide entity 
(including CMN) at the PRC-wide rate.

Cash Deposit Requirements

    If these preliminary results are adopted in the final results, then 
the following cash deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(2)(C) of the Act: (1) For previously 
investigated or reviewed PRC and non-PRC exporters that have separate 
rates, the cash deposit rate will continue to be the exporter-specific 
rate published for the most recent period; (2) for all PRC exporters of 
subject merchandise which have not been found to be entitled to a 
separate rate, the cash deposit rate will be the PRC-wide entity rate 
of 305.56 percent; and (3) for all non-PRC exporters of subject 
merchandise which have not received their own rate, the cash deposit 
rate will be the rate applicable to the PRC exporter that supplied that 
non-PRC exporter. These requirements, when imposed, shall remain in 
effect until further notice.

Disclosure and Public Comment

    Since no calculations were performed for these partial preliminary 
results, no disclosure is required under 19 CFR 351.224(b). Any 
interested party may request a hearing within 30 days of publication of 
this notice in accordance with 19 CFR 351.310(c). Any hearing will be 
held 37 days after the publication of this notice, or the first 
business day thereafter unless the Department alters the date pursuant 
to 19 CFR 351.310(d). Individuals who wish to request a hearing must 
submit a written request within 30 days of the publication of this 
notice in the Federal Register to the Assistant Secretary for Import 
Administration, U.S. Department of Commerce, pursuant to the 
Department's e-filing regulations.\21\ Requests for a public hearing 
should contain: (1) The party's name, address, and telephone number; 
(2) the number of participants; and (3) to the extent practicable, an 
identification of the arguments to be raised at the hearing. Parties 
should confirm by telephone the time, date, and place of the hearing 
within 48 hours before the scheduled time.
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    \21\ See https://iaaccess.trade.gov/help/IA%20ACCESS%20User%20Guide.pdf.
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    Unless otherwise notified by the Department, interested parties may 
submit case briefs within 30 days of the date of publication of this 
notice in accordance with 19 CFR 351.309(c)(1)(ii). As part of the case 
brief, parties are encouraged to provide a summary of the arguments and 
a table of authorities cited in accordance with 19 CFR 351.309(c)(2). 
Rebuttal briefs, which must be limited to issues raised in the case 
briefs, must be filed within five days after the case brief is filed in 
accordance with 19 CFR 351.309(d). All briefs must be filed in 
accordance with the Department's e-filing regulations.\22\ The 
Department intends to issue the final results of this review, which 
will include the results of its analysis of issues raised in the 
briefs, not later than 120 days after the date of publication of this 
notice in accordance with section 751(a)(3)(A) of the Act and 19 CFR 
351.213(h)(1).
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    \22\ Id.
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Notification to Importers

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

    Dated: July 27, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-18912 Filed 8-1-12; 8:45 am]
BILLING CODE 3510-DS-P