[Federal Register: March 10, 2003 (Volume 68, Number 46)]
[Notices]
[Page 11369-11371]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10mr03-30]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-806]
Silicon Metal from the People's Republic of China: Notice of
Preliminary Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration, U.S.
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) is conducting an
administrative review for Groupstars Chemical Co., Ltd. (Shandong)
(Groupstars) under the antidumping duty order on silicon metal from the
People's Republic of China (PRC). The period of review (POR) is from
June 1, 2001 through May 31, 2002.
Groupstars did not respond to the Department's antidumping
questionnaire. Accordingly, we have applied adverse facts available
(AFA) in determining Groupstars' margin. If these preliminary results
are adopted in our final results, we will instruct the U.S. Customs
Service to assess antidumping duties. Interested parties are invited to
comment on these preliminary results. See the ``Preliminary Results of
Review'' section of this notice.
EFFECTIVE DATE: March 10, 2003.
FOR FURTHER INFORMATION CONTACT: Christian Hughes or Matthew Renkey,
AD/CVD Enforcement Group III, Office 7, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue, N.W., Washington D.C. 20230; telephone
(202) 482-0190 and (202)482-2312, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department published in the Federal Register an antidumping
duty order on silicon metal from the PRC on June 10, 1991. See
Antidumping Duty Order: Silicon Metal from the People's Republic of
China, 56 FR 26649 (June 10, 1991). On June 21, 2002, Groupstars, a
Chinese exporter of silicon metal, submitted a timely request for the
Department to conduct an administrative review for the period June 1,
2001 through May 31, 2002. On July 18, 2002, the Department initiated
an administrative review covering the period June 1, 2001 through May
31, 2002. See Initiation of Antidumping and Countervailing Duty
Administrative Reviews and Requests for Revocation in Part, 67 FR 48435
(July 24, 2002). On August 21, 2002, the Department sent Groupstars the
standard non-market-economy antidumping questionnaire. The deadline for
responding to the questionnaire was September 27, 2002. As of October
18, 2002, the Department still had not received a response from
Groupstars, or a letter requesting an extension of the deadline. See
Memorandum to File through Maureen Flannery, Program Manager, from
Matthew Renkey, Analyst: Status of Questionnaire Response: Silicon
Metal from the People's Republic of China (PRC), Administrative Review
6/1/01-5/31/02, dated October 18, 2002.
On October 30, 2002, the Department received a letter from counsel
for Groupstars informing us that they were withdrawing from
representation of Groupstars because they were also unsuccessful in
eliciting a response from the company regarding the substantive nature
of this case.
Scope of the Antidumping Duty Order
The product covered by the order consists of silicon metal
containing at least 96.00 but less than 99.99 percent of silicon by
weight, and silicon metal with a higher aluminum content containing
between 89 and 96 percent silicon by weight.
The merchandise is currently classifiable under item numbers
2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule of the
United States (HTSUS) as a chemical product, but is commonly referred
to as a metal. Semiconductor-grade silicon (silicon metal containing by
weight not less than 99.99 percent of silicon and provided for in
subheading 2804.61.00 of the HTSUS) is not subject to this order. This
order is not limited to silicon metal used only as an alloy agent or in
the chemical industry. Although the HTSUS subheading is provided for
[[Page 11370]]
convenience and customs purposes, the written description of the
merchandise is dispositive.
Application of Facts Available
We find that, in accordance with section 776 (a)(2) of the Tariff
Act of 1930, as amended (the Act), the use of the facts otherwise
available is warranted for Groupstars. Sections 776(a)(2)(A) and
776(a)(2)(B) of the Act provide for the use of facts available when an
interested party withholds information that has been requested by the
Department, or when an interested party fails to provide the
information requested in a timely manner and in the form required.
Groupstars failed to provide information explicitly requested by the
Department; therefore, we must resort to the facts otherwise available.
Because Groupstars did not respond to the Department's questionnaire,
sections 782(d) and (e) of the Act, which reference deficient
submissions and the use of certain information provided by respondent,
are not applicable. In addition, section 782(c)(1), which also mentions
notification by the interested party, does not apply because Groupstars
did not indicate that it was unable to submit the information required
by the Department.
Section 776(b) of the Act provides that, in selecting from among
the facts available, the Department may use an inference that is
adverse to the interests of the respondent, if it determines that a
party has failed to cooperate to the best of its ability. In applying
the facts otherwise available, the Department has determined that an
adverse inference is warranted pursuant to section 776(b) of the Act
because Groupstars failed to cooperate to the best of its ability.
The Department finds that, by not providing any response to the
questionnaire issued by the Department, Groupstars has failed to
cooperate to the best of its ability. Groupstars did not submit to the
Department any information or reason for its failure to respond. This
information was in the sole possession of the respondent, and could not
be obtained otherwise. Thus, the Department is precluded from
calculating a margin for Groupstars or determining its eligibility for
a separate rate. Therefore, in selecting from the facts available, the
Department determines that an adverse inference is warranted. Because
Groupstars is not eligible for a separate rate, it is considered part
of the PRC-wide entity. In accordance with sections 776(a)(2)(A) and
(B), as well as section 776(b) of the Act, we are applying total AFA to
the PRC-wide entity. Section 776(b)(4) of the Act permits the
Department to use as AFA ``any other information placed on the
record.'' Thus, in selecting an AFA rate, the Department's practice has
been to assign respondents who fail to cooperate with Department's
investigation the highest margin determined for any party in the less-
than fair-value investigation or in any administrative review. See
Sigma Corp. v. United States, 117 F.3d 1401,1411 (Fed. Cir. 1997); See
also Sparklers from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 65 FR 43293, (July 13, 2000).
As AFA, the Department is assigning the rate of 139.49 percent, which
is the only rate, as well as the highest rate, from any segment of this
proceeding. This is the rate from the petition, as adjusted by the
Department in the investigation of sales at less than fair value (see
Final Determination of Sales at Less Than Fair Value: Silicon Metal
From the People's Republic of China, 56 FR 18570 (April 23, 1991)), and
the rate currently in effect for all exporters. As discussed below,
this rate has been corroborated.
Corroboration of Secondary Information Used As Adverse Facts Available
Section 776(c) of the Act provides that when the Department relies
on the facts otherwise available and relies on ``secondary
information,'' the Department shall, to the extent practicable,
corroborate that information from independent sources reasonably at the
Department's disposal. The Statement of Administrative Action, H.R.
Doc. 103-316 (SAA), clarifies that the petition is ``secondary
information,'' and states that ``corroborate'' means to determine that
the information used has probative value. See SAA at 870. To
corroborate secondary information, the Department will, to the extent
practicable, examine the reliability and relevance of the information
to be used. We have previously examined the reliability of the 139.49
rate and found it to be reliable. See Memorandum to Ed Yang, Office
Director, Office 9, AD/CVD Enforcement, through Maureen Flannery,
Program Manager, from Gideon Katz, Analyst: Corroboration of Data
Contained in the Petition in the Antidumping Investigation of Silicon
Metal from the People's Republic of China, dated March 2, 1998, and
placed on the record of this review. We have no information in this
administrative review which would indicate a change in the reliability
of this rate.
With respect to the relevance aspect of corroboration, the
Department has considered information reasonably at its disposal to
determine whether a margin continues to have relevance. Where
circumstances indicate that the selected margin is not appropriate as
AFA, the Department will disregard the margin and determine an
appropriate margin. For example, in Fresh Cut Flowers from Mexico:
Final Results of Antidumping Administrative Review, 61 FR 6812
(February 22, 1996), the Department disregarded the highest margin in
that case as best information available (the predecessor to facts
available) because the margin was based on another company's
uncharacteristic business expense resulting in an unusually high
margin. Similarly, the Department does not apply a margin that has been
discredited. See D & L Supply Co. v. United States, 113 F.3d 1220, 1221
(Fed. Cir. 1997) (the Department will not use a margin that has been
judicially invalidated). None of these unusual circumstances are
present here. Moreover, the rate selected is the rate currently
applicable to all exporters, and there is no information on the record
of this review that demonstrates that this rate is not relevant for use
as AFA during this administrative review.
Accordingly, we determine that the highest rate from any previous
segment of this administrative proceeding (i.e., the rate of 139.49
percent for the determination of sales at less than fair value) is in
accord with section 776(c)'s requirement that secondary information be
corroborated (i.e., that it have probative value).
Preliminary Results of Review
We preliminarily determine that the following dumping margin
exists:
------------------------------------------------------------------------
Time
Manufacturer/Exporter Period Margin (percent)
------------------------------------------------------------------------
PRC-Wide Rate............................... 6/1/01- 139.49
5/31/02
------------------------------------------------------------------------
Duty Assessment and Cash Deposit Requirements
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appropriate appraisement instructions directly to the
Customs Service within 15 days of publication of the final results of
review. For assessment purposes, for all PRC exporters, we will apply
the rate listed above. Furthermore, the following deposit rates will be
effective with respect to all shipments of silicon metal from the PRC
entered, or withdrawn from warehouse, for consumption on or after the
publication date of the final results of this review, as provided for
by section
[[Page 11371]]
751(a)(2)(C) of the Act: (1) for all PRC exporters, the rate will be
the PRC-wide rate, 139.49 percent. (2) for all non-PRC exporters of
subject merchandise from the PRC, the cash deposit rate will be the
rate applicable to the PRC supplier of that exporter. These deposit
requirements, when imposed, shall remain in effect until publication of
the final results of the next administrative review.
Public Comment
Pursuant to section 351.224(b) of the Department's regulations, the
Department will disclose to parties to the proceeding any calculations
performed in connection with these preliminary results within five days
of the date of publication of this notice. Pursuant to section 351.309
of the Department's regulations, interested parties may submit written
comments in response to these preliminary results. Case briefs should
be submitted within 30 days after the date of publication of this
notice, and rebuttal briefs, limited to arguments raised in case
briefs, should be submitted no later than five days after the time
limit for filing case briefs. Parties who submit arguments in this
proceeding are requested to submit with the argument: (1) a statement
of the issues, and (2) a brief summary of the argument. Case and
rebuttal briefs must be served on interested parties in accordance with
section 351.303(f) of the Department's regulations.
Also, pursuant to section 351.310 of the Department's regulations,
within 30 days of the date of publication of this notice, interested
parties may request a public hearing on arguments to be raised in the
case and rebuttal briefs. Unless the Secretary specifies otherwise, the
hearing, if requested, will be held two days after the date for
submission of rebuttal briefs. Parties will be notified of the time and
location. The Department will publish the final results of this
administrative review, including the results of its analysis of issues
raised in any case or rebuttal briefs, not later than 120 days after
publication of these preliminary results, unless that deadline is
extended.
Notification of Interested Parties
This notice also serves as a preliminary reminder to importers of
their responsibility under section 351.402(f) of the Department's
regulations to file a certificate regarding the reimbursement of
antidumping duties prior to liquidation of the relevant entries during
this review period. Failure to comply with this requirement could
result in the Secretary's presumption that reimbursement of antidumping
duties occurred and the subsequent assessment of double antidumping
duties.
This administrative review and this notice are published in
accordance with sections 751(a)(1) and 777(i)(1) of the Act, and
sections 351.213 and 351.221 of the Department's regulations.
Dated: March 3, 2003.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 03-5636 Filed 3-3-03; 8:45 am]