[Federal Register: November 8, 2002 (Volume 67, Number 217)]
[Notices]
[Page 68094-68100]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no02-37]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-007]
Barium Chloride From the People's Republic of China: Preliminary
Results and Rescission in Part of Antidumping Duty Administrative
Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Results and Rescissions in Part of
Antidumping Duty Administrative Review of Barium Chloride from the
People's Republic of China.
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SUMMARY: In response to a request from the petitioner, the Department
of Commerce (the Department) is conducting an administrative review of
the antidumping duty order on barium chloride from the People's
Republic of China (PRC). The period of review (POR) is October 1, 2000
through September 30, 2001. The petitioner requested a review of 11
exporters. One company reported that it had no shipments of subject
merchandise to the United States during the POR, and we have confirmed
that claim with the U.S. Customs Service (Customs). Accordingly, we are
preliminary rescinding the review with respect to this firm. Because
the remaining exporters have not responded to our questionnaire, we
have preliminary determined to use facts otherwise available for cash-
deposit and assessment purposes for all producers/exporters of the
subject merchandise.
[[Page 68095]]
We invite interested parties to comment on these preliminary
results. Parties who submit comments are requested to submit with each
argument: (1) A statement of the issue and (2) a brief summary of the
argument.
EFFECTIVE DATE: November 8, 2002.
FOR FURTHER INFORMATION CONTACT: John Conniff or Drew Jackson, AD/CVD
Enforcement, Office 4, Group II, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone (202) 482-
1009 or (202) 482-4406, respectively.
SUPPLEMENTARY INFORMATION:
The Applicable Statute and Regulations
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended, (the Act) are references to the provisions effective
January 1, 1995, the effective date of the amendments made to the Act
by the Uruguay Round Agreements Act. In addition, unless otherwise
indicated, all citations to the Department's regulations are to the
regulations at 19 CFR part 351 (2001).
Period of Review
The POR is October 1, 2000 through September 30, 2001.
Background
On October 17, 1984, the Department published in the Federal
Register (49 FR 40635) the antidumping duty order on barium chloride
from the PRC (antidumping duty order). On October 1, 2001, the
Department published in the Federal Register (66 FR 49923) a notice of
``Opportunity to Request Administrative Review'' of antidumping duty
order covering the period October 1, 2000 through September 30, 2001.
In response to the notice of opportunity to request an administrative
review for this POR, the petitioner, Chemical Products Corporation
(CPC) requested by letter dated October 31, 2001 that the Department
conduct an administrative review of the following Chinese
manufacturers/exporters of the subject merchandise: Zhangjiaba Salt
Chemical Plant (Zhangjiaba), Hebei Xinji Chemical Plant, Tianjin
Chemical Industry Corporation, Qingdao Red Star Chemical Group Co.,
Tianjin Bohai Chemical United Import/Export Company, Sichuan Emeishan
Salt Chemical Industry Group Company, Ltd., Hengnan, Kunghan, Linshu,
Tangshan, and China National Chemicals Import and Export Corporation
(Sinochem).
On November 21, 2001, the Department published a notice of
initiation of an administrative review of the producers/exporters named
by the petitioner in its review request (66 FR 58432). On December 21,
2001, we received a letter from Zhangjiaba stating that ``during the *
* * POR, Zhangjiaba Chemical made no shipments or sales of subject
barium chloride to the United States.''
On January 14, 2002, the Department sent antidumping questionnaires
to all of the parties named in the notice of initiation for whom we
could find addresses.\1\ We requested that the PRC Ministry of Foreign
Trade and Economic Cooperation (MOFTEC) deliver the questionnaires to
four named parties for whom we could not find addresses. Subsequently,
four questionnaires sent directly to named parties by the Department
were returned as undeliverable due to incorrect addresses or contact
information. On January 30, 2002, the Department sent copies of the
questionnaire to MOFTEC requesting that it deliver them to the four
parties for whom the questionnaires were returned. On March 4, 2002, we
sent letters to all of the parties named in the notice of initiation
requesting that they notify the Department in writing by March 18,
2002, if they did not have any U.S. Customs entries, sales or shipments
of the subject merchandise during the POR. With the exception of the
December 21, 2001, letter from Zhangjiaba, we received no response from
any of the parties from whom we requested information.
On February 11, 2002, the petitioner submitted a request that the
Department calculate a new adverse facts available margin for the PRC-
wide entity. In the submission, the petitioner included Indian factor
values, factor usage rates (based on its production experience), and an
average U.S. price (based on U.S. import values during the POR) with
which to calculate a new PRC-wide margin. On August 23, 2002,
Zhangjiaba submitted comments opposing the petitioner's request. The
petitioner responded to Zhangjiaba's comments on September 6, 2002. For
a complete discussion of the issue raised by the petitioner, see the
``Adverse Facts Available Rate'' section of this notice below.
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\1\ Section A of the questionnaire requests separate rates
information and general information concerning a company's corporate
structure, business practices, sales practices and products,
including the merchandise under consideration. Section C requests a
complete listing of U.S. sales of the merchandise under
consideration. Section D requests information regarding the factors
of production of the merchandise under consideration. Section E
requests information regarding further manufacturing of the
merchandise under consideration in the United States.
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Pursuant to section 751(a)(3)(A) of the Act, the Department may
extend the deadline for completion of the preliminary results of an
administrative review if it determines that it is not practicable to
complete the preliminary results of a review within the statutory time
limit of 245 days. On July 8, 2002, in accordance with the Act, the
Department extended the time limit for the preliminary results of this
review until September 30, 2002. See Barium Chloride from the People's
Republic of China: Extension of Time Limit for Preliminary Results of
Antidumping Duty Administrative Review, 67 FR 45088 (July 8, 2002). On
August 8, 2002, the Department again extended the time limit for the
preliminary results. See Barium Chloride from the People's Republic of
China: Extension of Time Limit for Preliminary Results of Antidumping
Duty Administrative Review, 67 FR 51535 (August 8, 2002). The second
extension was until October 31, 2002.
The Department is conducting this administrative review in
accordance with section 751 of the Act.
Scope of the Review
The imports covered by this review are shipments of barium
chloride, a chemical compound having the formulas BaCl2 or BaCl2-2H2O,
currently classifiable under item number 2827.39.45.00 of the
Harmonized Tariff Schedule of the United States (HTSUS).\2\ Although
the HTSUS item number is provided for convenience and for Customs
purposes, the written description remains dispositive.
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\2\ The scope reflects the HTS item number currently in effect.
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Preliminary Partial Rescission
We are preliminarily rescinding this review with respect to
Zhangjiaba because it reported that it made no shipments of subject
merchandise to the United States during the POR and our review of
Customs data supports that assertion.
Separate Rates Determination
In proceedings involving nonmarket economy (NME) countries, the
Department begins with a rebuttable presumption that all companies
within the country are subject to government control and thus should be
assessed a single antidumping deposit rate. It is the Department's
policy to assign all exporters of merchandise subject to review in an
NME country this single
[[Page 68096]]
rate, unless an exporter can demonstrate that it is sufficiently
independent so as to be entitled to a separate rate. Because none of
the companies for which an administrative review has been requested for
this POR has demonstrated that it is entitled to a separate rate, all
are deemed to be included in the PRC-wide entity and will be assigned a
single margin as discussed below.
Facts Available
Section 776(a)(1) of the Act mandates that the Department shall,
subject to section 782(d) of the Act, use facts available in reaching
its determination if necessary information is not available on the
record of an antidumping proceeding. In addition, section 776(a)(2) of
the Act mandates that the Department use facts available when an
interested party or any other person: (A) Withholds information
requested by the Department; (B) fails to provide requested information
by the requested date or in the form and manner requested; (C)
significantly impedes an antidumping proceeding; or (D) provides
information that cannot be verified. In the instant review, none of the
named respondents, other than Zhangjiaba, answered the Department's
questionnaire. Thus, pursuant to section 776(a) of the Act, the margin
for the PRC-wide entity must be based on facts available.\3\
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\3\ Since we received no responses to our questionnaire, section
782(d) of the Act, which directs the Department to provide parties
with an opportunity to remedy deficient responses, is not
applicable.
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In selecting from among the facts otherwise available, section
776(b) of the Act provides that if the Department finds that an
interested party failed to cooperate by not acting to the best of its
ability to comply with a request for information, the Department may
use an inference that is adverse to the interests of the party. This
section of the Act goes on to note that such an adverse inference may
include reliance on information derived from the petition, a final
determination in an antidumping investigation or review, or any other
information placed on the record. Because all but one of the named
respondents failed to reply to our questionnaire and our inquiry
regarding shipments, we preliminarily determine that these entities did
not act to the best of their abilities to comply with our requests.
Therefore, pursuant to section 776(b) of the Act, we are basing the
margin for the PRC-wide entity on adverse facts available.
Adverse Facts Available Rate
Although the Department's general practice is to use as an adverse
facts available rate, the highest rate from any segment of the
proceeding, including the current segment (see Sigma Corp. v. U.S., 117
F.3rd 1401, 1411 (Fed. Cir. July 7, 1997) (stating that Commerce has a
``long-standing practice of assigning to respondents who fail to
cooperate with Commerce's investigation the highest margin calculated
for any party in the less-than-fair-value investigation or in any
administrative review''), the petitioner urges the Department to base
the adverse facts available rate on information it placed on the record
of this review, rather than using the highest rate from any segment of
the proceeding. (i.e., 60.84 percent, the rate calculated in the 1985-
1986 administrative review that is currently applicable to all imports
of subject merchandise). Specifically, the petitioner contends that the
60.84 percent rate is not an appropriate adverse facts available rate
because it is based on outdated information which does not reflect
current market conditions and it has neither stopped injurious dumping
nor induced named respondents to participate in administrative reviews
subsequent to the 1985-1986 review. According to the petitioner, since
the 1985-1986 POR, there have been various changes in the process used
by Chinese companies to produce barium chloride and in the prices of
inputs used in that production process. Therefore, the petitioner
claims that it is likely that a recalculated adverse facts available
rate, based on the information it has placed on the record, would
reflect current marketplace behavior better than the 1985-1986 margin.
The petitioner also claims that a recalculated margin would enable the
Department to meet its obligation to ``determin(e) current margins as
accurately as possible.'' See Rhone Poulenc, Inc. v. U.S., 899 F.2d
1185, 1191 (Fed. Cir. 1990). In addition, the petitioner points to the
more than 150 percent increase in the volume of U.S. imports of barium
chloride from the PRC between the years 1996 and 2000, and the
extremely low U.S. import prices for barium chloride, as evidence that
the existing adverse facts available rate has provided neither a
sufficient incentive for PRC producers to begin trading barium chloride
fairly in the United States, nor a sufficient restraint on imports to
ameliorate the effects of unfair trade on the U.S. industry. See
Memorandum to the File from Drew Jackson regarding factual information
used in our analysis, dated concurrently with this notice (Factual
Information Memorandum).
In urging the Department to calculate an adverse facts available
rate based on the information it submitted, the petitioner points out
that section 776(b) of the Act permits the Department to calculate an
adverse facts available rate based upon information from the petition,
other administrative reviews, or any other information placed on the
record. The petitioner contends that the information it placed on the
record of this review (i.e., Customs import data, factor values from
publicly available sources, and factor usage information based on its
own expertise as a manufacturer of barium chloride) satisfies the
statutory requirements for use by the Department as facts available
under sections 773(c) (outlining NME methodology) and 776(b) (use of
adverse inferences) of the Act.
Further, the petitioner notes that the Department has used new
record information in administrative reviews to calculate antidumping
rates higher than that alleged in the petition or found in earlier
proceedings where the new information was probative and verified.
Citing Stainless Steel Plate in Coils from Belgium: Final Results of
Antidumping Duty Administrative Review, 66 FR 56272 (Nov. 7, 2001)
(SSPC from Belgium), the petitioner points out that the Department has
used financial ratio information from the publicly available financial
reports of a non-cooperating respondent to calculate a margin that was
higher than any margin alleged in the petition or calculated during a
previous review. Additionally, the petitioner notes that in Petroleum
Wax Candles from the People's Republic of China: Final Results of the
Antidumping Duty Administrative Review, 66 FR 14545 (Mar. 13, 2001)
(Petroleum Wax Candles), although the Department rejected the proposed
calculation submitted by the petitioner in that case as being
inconsistent with the methods of calculating normal value, it
nevertheless acknowledged that, where an adverse inference is
warranted, the use of ``any other information placed on the record'' is
an appropriate source of information for calculating an adverse facts
available margin.
Zhangjiaba contends that the Department should dismiss the
petitioner's argument because its assertions are unsubstantiated and
its request unsupported by the cases to which it cited. In particular,
Zhangjiaba notes that the petitioner provided nothing to support its
claim that there have been changes in the production process and input
prices for barium chloride since the 1985-1986 POR, nor
[[Page 68097]]
did it provide anything to support the alleged increase in the volume
of barium chloride imported into the United States. In addition,
Zhangjiaba maintains that the petitioner has not shown that the factors
of production it provided for the recalculation have any relevance to
the PRC producer's factors of production, nor has it shown that the
prices of U.S. imports of barium chloride from the PRC have decreased
or not kept pace with the costs of production in the PRC. Moreover,
Zhangjiaba argues that the petitioner's reliance on SSPC from Belgium
is misplaced because, unlike the petitioner in SSPC from Belgium, the
petitioner here has placed non-publicly available and uncorroborated
information on the record, and therefore, the Department may not rely
upon this information to calculate an adverse facts available rate.
Additionally, Zhangjiaba notes that the courts have required some
connection between the data used to calculate a dumping margin and the
respondents' actual dumping margins, and that the data used must be
neither aberrationally high nor based on uncorroborated information.
Citing F. Lli De Cecco di Filipino Fara S. Martino S.p.A v. United
States, 216 F.3d 1027, 1033 (Fed. Cir. 2000) (De Cecco), Zhangjiaba
notes that a federal circuit court has found that ``Congress could not
have intended for (the Department's) discretion to include the ability
to select unreasonably high rates with no relationship to respondent's
actual dumping margin.'' See F. Lli De Cecco di Filipino Fara S.
Martino S.p.A v. United States. Zhangjiaba also points out that in
Petroleum Wax Candles the Department rejected the petitioner's proposed
calculations.
Further, with respect to its own situation, Zhangjiaba contends
that it should not receive an adverse facts available rate because,
given that it had no shipments during the POR, it did not fail to
supply anything requested of it by the Department. Zhangjiaba goes on
to note that an adverse facts available rate can only be applied to a
respondent that withholds information, fails to provide requested
information, significantly impedes an investigation, or provides
information that cannot be used.\4\ Finally, Zhangjiaba notes that in
the final results of the sunset review (64 FR 5633 (February 4, 1999)),
the most recent determination in this proceeding, the Department found
that revocation of the order on barium chloride from the PRC would
likely lead to dumping at 14.50 percent.\5\ In the absence of any
evidence on the record that the magnitude of dumping has increased,
Zhangjiaba argues that there is no basis for recalculating the PRC-wide
rate; however, if the PRC-wide rate is changed, it should be changed to
14.50 percent, the rate identified in the most recent determination.
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\4\ Zhangjiaba citing section 776(a) of the Act. (19 U.S.C.
1677e(a)).
\5\ Consistent with the guidance provided in the Sunset Policy
Bulletin, the Department found that revocation of the order on
barium chloride from the PRC would likely lead to dumping at the
rate from the investigation. The investigation margin is 14.50
percent.
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In response to Zhangjiaba's comments, the petitioner reasserts its
position that it is appropriate for the Department to calculate an
adverse facts available margin using information placed on the record
of this review because the adverse facts available rate previously used
in this proceeding is more than 15 years old and does not take into
account changes in sales and input prices or changes in the methodology
used by the Department of NME cases. The petitioner notes that in
Sodium Thiosulphate from the People's Republic of China: Preliminary
Results of Antidumping Duty Administrative Review, 57 FR 58792 (Dec.
11, 1992) (Sodium Thiosulphate from the PRC, the Department
recalculated the facts available rate (at that time referred to as the
best information available (BIA) rate) using information placed on the
record by the petitioner because the previous BIA rate was ``no longer
sufficiently adverse to induce respondents to submit timely accurate,
and complete responses,'' (the Department continued to follow this
approach in the final results of that review). The petitioner also
contends that updating the adverse facts available rate is consistent
with the language and policy of the Act. The petitioner argues that in
the absence of subpoena power, the Department's only incentive to
induce respondents to participate in antidumping proceedings is the
potential that a producer will receive an adverse facts available
dumping margin. The petitioner also notes that the adverse facts
available margin serves the important policy goal of ensuring that
respondents who choose not to participate in the process do not obtain
more favorable rates than cooperating parties.
Additionally, the petitioner argues that an adverse facts available
rate that is not sufficient to compel cooperation by respondents is
subject to change. Citing Steel Wire Rope from the Republic of Korea:
Final Results of Antidumping Duty Administrative Review and Revocation
on Part of Antidumping Duty Order, 63 FR 17986 (April 13, 1998) (Steel
Wire Rope), the petitioner notes that the Department determined that an
adverse facts available rate calculated during a previous
administrative review did not offer an adequate sanction to induce the
respondents to cooperate in the proceeding, and therefore it revised
the adverse facts available rate from 1.51 percent to 13.79 percent.
Moreover, the petitioner dismisses Zhangjiaba's claim that the
Department has no basis for using facts otherwise available or deriving
an adverse inference with respect to Zhangjiaba. The petitioner points
out that in Final Determination of Sales at Less Than Fair Value:
Foundry Coke Products from the People's Republic of China, 66 FR 39487
(July 31, 2001), the Department determined that a producer of subject
merchandise that made no shipments during the POR was not entitled to a
separate rate. Therefore, the petitioner argues that Zhangjiaba, which
reported that it made no shipments of barium chloride to the United
States during the POR, is not entitled to a separate rate and should
receive the PRC-wide rate.
Additionally, the petitioner claims that Zhangjiaba's assertions
about an increase in imports of barium chloride into the United States
are without merit. The petitioner contends that its statement that U.S.
imports of barium chloride from the PRC rose by more than 150 percent
between 1996 and 2000 is a statement of fact appropriately filed within
the deadline for submitting factual information (interested parties may
submit factual information on the record within 140 days after the last
day of the anniversary month for the review; see 19 CFR 351.301(b)(2)).
The petitioner argues that, according to the Department's regulations,
it is not required to provide any additional support for its statement.
Moreover, the petitioner claims that any party that takes issue with
this statement should provide their own factual information as
rebuttal.
Furthermore, the petitioner dismisses Zhangjiaba's claim that its
information cannot be used to relocate the PRC-wide margin because the
information is not public, is uncorroborated, and is unrelated to the
PRC barium chloride industry. The petitioner notes that while it did
supply proprietary consumption quantities for factors, the Act does not
require that all information submitted for the Department's
consideration in calculating margins be public information (e.g.,
petition rates are invariably based on sensitive information). See
section 776(b)(4) of this Act. Moreover, the petitioner claims
[[Page 68098]]
that the information it submitted to the Department has probative value
because it consists of U.S. government imports statistics, which need
not be corroborated, factor values from sources consistently used by
the Department, and consumption quantities which can be relied upon
based on the petitioner's extensive experience as a producer of barium
chloride. Further, the petitioner maintains that in claiming that the
petitioner's data is not related to the Chinese barium chloride
industry's factors of production, Zhangjiaba has failed to recognize
that the Department must seek other sources of information in light of
the consistent failure of named respondents to submit information
requested by the Department.
Finally, the petitioner argues that the margin from the sunset
review is irrelevant because it is the margin from the investigation
which reflects the behavior of exporters without the discipline of the
order, rather than current market conditions, and thus it does not
serve as an appropriate measure of dumping during the instant POR.
Section 776(b) of the Act permits the Department to base adverse
facts available upon ``any other information placed on the record.''
The issue before the Department here, is whether the facts in this case
provide a sufficient basis for calculating the adverse facts available
rate using information placed on the record of this review, rather than
using as adverse facts available the highest margin from any segment of
the proceeding. In making this determination, it is instructive to
consider the guidance regarding adverse inferences provided by the
Statement of Administrative Act (SAA) and the courts. In employing
adverse inferences, the SAA instructs the Department to consider ``the
extent to which a party may benefit from its own lack of cooperation,''
noting that adverse inferences are made ``to ensure that the party does
not obtain a more favorable result by failing to cooperate than if it
had cooperated fully. See H.R. Doc. 103-316, Vol. 1 at 80 (1994).
However, with respect to selecting an adverse facts available rate, the
Court of International Trade (CIT) noted that Congress ``intended for
an adverse facts available rate to be a reasonably accurate estimate of
the respondents's actual rate, albeit with some built-in increase
intended as a deterrence to non-compliance.'' See DeCecco, 216 F.3d at
1032. Furthermore in Ferro Union, Inc. v. United States, 44 F Supp.2d
1310, 1335 (CIT 1999) (Ferro Union), the CIT noted that ``Commerce
cannot select a rate which focuses only on inducing the exporter to
cooperate and ignores the interest in selecting a margin which relates
to the past practices of the industry.'' The Court went on to note that
``Commerce must assure itself that the margin it applies is relevant
and not outdated, or lacking a rational relationship to {the
respondent{time} .'' See Ferro Union, 44 F. Supp.2d at 1335.
In light of the above, we have examined sales prices and import
trends concerning PRC barium chloride to determine whether the highest
margin calculated in any segment of this proceeding is sufficiently
adverse to induce cooperation from the named respondents (i.e., we
considered the extent to which the named respondents may benefit from
their lack of cooperation). Over the 16 years following the 1985-1986
POR, prices for the majority of U.S. imports of barium chloride from
the PRC have remained virtually unchanged. The average unit value (AUV)
of barium chloride imported from the PRC into the United States during
the instant POR is 238.97 U.S. dollars per metric tone while the AUV of
barium chloride imports during the 1985-1986 POR is 232.46 U.S. dollars
per metric tone. See Factual Information Memorandum. With respect to
the normal value of PRC barium chloride, pursuant to the Department's
NME methodology, we have examined the constructed value rather than
actual sales prices. Given that none of the named respondents provided
any information on which to base constructed value, we calculated
constructed value using the factors of production data provided by the
petitioner. We valued the factors of production using surrogate values
from India. For details regarding our selection of India as the
surrogate country, see the ``Calculation of the Adverse Facts Available
Rate'' section of this notice below. Comparing constructed value to the
AUV of imports of subjected merchandise during the instant POR yields a
margin significantly greater than the 60.84 percent margin calculated
in the 1985-1986 administrative review (the highest margin calculated
in any segment of this proceeding). The foregoing analysis suggests
that the 60.84 percent margin from the 1985-1986 administrative review
may not bear a rational relationship to the practices of the PRC-wide
entity during the instant POR because input values have increased
significantly and, therefore, the margin no longer reflects current
market behavior. More importantly, it indicates the margin is not
adverse, as respondents would benefit from use of this margin.
The production costs calculated from the data submitted by the
petitioner are based on surrogate values derived from transactions that
are contemporaneous with the instant POR, and, based on our
corroboration standard, we believe it is reasonable to preliminarily
find that a rational relationship does exist between the margin
calculated using these data and the practices of the PRC-wide entity
during the instant POR. See the ``Corroboration'' section of this
notice below.
With respect to the question of whether the 60.84 percent margin
calculated in the 1985-1986 administrative review is sufficiently
adverse to induce cooperation from the named respondents, we note that
since completing the 1985-1986 administrative review, the Department
has conducted one administrative review of the antidumping duty order
on barium chloride from the PRC (the 1997-1998 administrative
review).\6\ The firms named as respondents in the instant
administrative review were also named as respondents in the 1997-1998
administrative review. None of these firms responded to the
questionnaire issued in the 1997-1998 administrative review. In
addition, the Department conducted a sunset review of the antidumping
duty order on barium chloride from the PRC in which it received no
response from any respondent interested party. However, U.S. Customs
records indicate that at least one named respondent exported subject
merchandise to the United States during he instant POR. See Factual
Information Memorandum. Moreover, import statistics from the
International Trade Commission confirm the petitioner's assertion that
the volume of imports of barium chloride from the PRC has increased
approximately 158 percent between the years 1996 and 2000. In fact, the
quantity of barium chloride imported into the United States from the
PRC has increased by 170.5 percent between the years 1996-2001. See
Factual Information Memorandum. Despite the fact that the volume of
U.S. imports of barium chloride from the PRC is increasing--and there
are indications that at least some of the named respondents are
participating in the U.S.
[[Page 68099]]
market at the 60.84 percent antidumping duty rate--none of the
respondents have participated in the Department's two most recent
administrative reviews of barium chloride from the PRC. This fact, when
considered in light of our concerns as to whether the 60.84 percent
margin reflects the current practices of the PRC-wide entity, leads us
to conclude that the 60.84 margin is not sufficiently adverse to induce
cooperation from the named respondents. Because the margin calculated
from the information placed on the record by the petitioner bears a
rational relationship to the practices of the PRC-wide entity during
the instant POR and is higher than the 60.84 percent rate, we find it
reasonable to use the margin as adverse facts available. Furthermore,
with respect to the 14.50 percent margin advocated by Zhangjiaba, we
agree with the petitioner that this is not an appropriate measure of
dumping in this review because, as noted above, information placed on
the record of this review indicates that production costs, and hence
constructed value, have change significantly and, therefore, the margin
no longer reflects current market behavior. Moreover, even without the
information provided by the petitioner, the 14.50 percent rate would
not reflect an adverse inference in light of the 60.84 percent rate
that is currently applicable to all imports of subject merchandise.
Based on the foregoing, including virtually constant AUVs, likely
increases in factor values, and significant increases in import
volumes, we have preliminary decided to calculate the PRC-wide rate
using information placed on the record of this review by the
petitioner.
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\6\ The Department rescinded its administrative reviews of the
order on barium chloride from the PRC covering the period October 1,
1986 through September 30, 1987 (the petitioner withdrew its request
for review) and October 1, 1990 through September 30, 1991 (the sole
respondent made no shipments of barium chloride to the United
States).
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As noted above, this approach was taken by the Department in
previous cases in which it considered the adverse facts available rate
to be inappropriate. See, e.g., Sodium Thiosulphate from the PRC.
Further, with respect to Zhangjiaba's claim that it should not
receive an adverse facts available rate because it did not fail to
supply anything requested of it by the Department, we note that
Zhangjiaba shipped no subject merchandise to the United States during
this POR, and thus, it is not possible to conduct an antidumping
analysis of the company. Therefore, we are preliminary rescinding this
review with respect to Zhangijaba. Because Zhangjiaba has never been
assigned a separate rate, there is no basis to assign Zhangjiaba a rate
distinct from the PRC-wide rate. See Final determination of Sales at
Less Than Fair Value: Foundry Coke Products From the People's Republic
of China, 66 FR 39487 (July 31, 2001) and accompanying Decision
Memorandum at Comment 8.
Calculation of the Adverse Facts Available Rate
We have calculated an adverse facts available rate for the PRC-wide
entity using the factor usage rates, average U.S. price, and certain
surrogate values placed on the record of this review by the petitioner.
Where possible, we have updated or revised the surrogate values placed
on the record by the petitioner to include Indian import statistics
covering the entire POR. Additionally, where the petitioner has used
price lists to value a factor, we have valued the factor using Indian
import statistics covering the entire POR.
The Department has identified India as an appropriate surrogate for
the PRC in each segment of this proceeding in which it calculated an
antidumping duty margin. See, e.g., Final Determination of Sales at
Less Than Fair Value; Barium Chloride From the People's Republic of
China, 49 FR 33916 (August 27, 1984) (where the Department stated that
``India would be the most appropriate surrogate selection.'').
Moreover, in this review, the Department's Office of Policy has
identified as a country at a level of economic development comparable
to the PRC. See Memorandum from Jeffrey May to Holly Kuga dated
February 28, 2002. Finally, we note that the petitioner placed evidence
on the record of this review demonstrating that India is a producer of
barium chloride. See the petitioner's February 11, 2002 submission at
Exhibit 1. Therefore, we find the petitioner's use of India as its
source of surrogate values to be appropriate. For details regarding our
calculation, see the memorandum from Drew Jackson to The File,
``Calculation of the Adverse Facts Available Rate in the 2000-2001
Administrative Review of Barium Chloride From the People's Republic of
China'' dated concurrently with this notice.
Corroboration of Information
Section 776(c) of the Act provides that the Department shall, in
using facts otherwise available, to the extent practicable, corroborate
secondary information from independent sources reasonably at its
disposal. The SAA provides that ``corroborate'' means that the
Department will satisfy itself that the secondary information to be
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. However,
where corroboration is not practicable, the Department may use
uncorroborated information. See Steel Wire Rope From the Republic of
Korea; Final Results of Antidumping Duty Administrative Review and
Partial Rescission of Antidumping Duty Administrative Review, 64 FR
17995, 17996, (April 3, 1999) (noting ``where corroboration is not
practicable, the Department may use uncorroborated information'').
Publicly available data from independent sources that relate to the
relevant time period are generally considered to be both relevant and
reliable because they are contemporaneous with the period under
consideration and not generated for purposes of the trade action.
Therefore, we consider the AUVs and factor values placed on the record
of this review to be corroborated. See Notice of Preliminary
Determination of Sales at Less Than Fair Value and Postponement of
Final Determination: Non-Malleable Cast Iron Pipe Fittings From the
People's Republic of China, 67 FR 60214, 60214 (September 25, 2002)
(wherein the Department found export prices, based on U.S. government
statistics, and Indian surrogate values, based on publicly available
information, to be sufficiently corroborated).
Due to the lack of information from the named respondents, it is
not practicable to corroborate the factor usage rates placed on the
record by the petitioner. It is worth noting that the implementing
regulation for section 776 of the Act states, ``(t)he fact that the
corroboration may not be practicable in a given circumstance will not
prevent the Secretary from applying an adverse inference as appropriate
and using the secondary information in question.'' See 19 CFR
351.308(d) Therefore, given that we have been able to corroborate
average unit values and factor values placed on the record by the
petitioner, we consider the calculation using the petitioner's facts to
be sufficiently corroborated. See, e.g., Notice of the Final
Determination Sales at Less Than Fair Value and Critical Circumstances:
Certain Cold-Rolled Carbon Steel Flat Products from the Russian
Federation, 67 FR 621121-01 (October 3, 2002).
Preliminary Results of Review
As a result of our review, we preliminarily determine that the
following weighted-average percentage dumping margin exists for the
period October 1, 2000 through September 30, 2001:
------------------------------------------------------------------------
Margin
Exporter/manufacturer (percent)
------------------------------------------------------------------------
PRC-wide rate.............................................. 153.88
------------------------------------------------------------------------
[[Page 68100]]
The Department will disclose to parties to the proceeding any
calculations performed in connection with these preliminary results
within 5 days of the date of publication of this notice. See Sec.
351.224(b) of the Department's regulations. Interested parties may
submit case briefs within 21 days of the date of publication of this
notice. Rebuttal briefs, whose content 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 Sec. Sec. 351.309 and 351.310
of the Department's regulations. A list of authorities used, a table of
contents, and an executive summary of issues should accompany any
briefs submitted to the Department. Executive summaries should be
limited to five pages total, including footnotes. Further, we request
that parties submitting briefs and rebuttal briefs provide the
Department with a copy of the public version of such briefs on
diskette.
In accordance with section 774 of the Act, we will hold a public
hearing, if requested, to afford interested parties an opportunity
comment on arguments raised in case of rebuttal briefs. If a request
for a hearing is made, we will tentatively hold the hearing two days
after the deadline for submission of rebuttal briefs at the U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230, at a time and in a room to be determined. Parties
should confirm by telephone the date, time, and location of the hearing
48 hours before the scheduled date. Interested parties who wish to
request a hearing, or to participate in a hearing if one is requested,
must submit a written request to the Assistant Secretary for Import
Administration, U.S. Department of Commerce, Room 1870, within 10 days
of the date of publication of this notice. Requests should contain: (1)
The party's name, address, and telephone number; (2) the number of
participants; and (3) a list of the issues to be discussed. At the
hearing, oral presentations will be limited to issues raised in the
briefs. See 19 CFR 351.310(c).
The Department will publish a notice of final results of this
administrative review, which will include the results of its analysis
of issues raised in any comments, not later than 120 days after the
date of publication of these preliminary results.
Duty Assessment Rates
Upon completion of the final results in this administrative review,
the Department shall determine, and the Customs Service shall assess,
antidumping duties on all appropriate entries. We intend to issue
assessment instructions to Customs within 15 days of publication of the
final results of review. If these preliminary results are adopted in
the final results of review, we will direct Customs to assess the
resulting assessment rate against the entered customs values for the
subject merchandise on each of the importer's entries during the review
period.
Cash Deposit Requirements
The following deposit requirements will be effective upon
publication of the final results of this administrative review for all
shipments of barium chloride from the PRC entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(1) of the Act: (1) The cash deposit rate
for all Chinese exporters will be the rate established in the final
results of this review; and (2) for non-PRC exporters of subject
merchandise from the PRC, the cash deposit rate will be the rate
applicable to their PRC suppliers. These deposit requirements, when
imposed, shall remain in effect until publication of the final results
of the next administrative review.
This notice serves as a preliminary reminder to importers of their
responsibility under Sec. 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 POR. Failure
to comply with this requirement could result in the Secretary's
presumption that reimbursement of antidumping duties occurred and the
subsequent assessment of double antidumping duties.
This administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)), 777(i) of the Act
(19 U.S.C. 1677f(i)), and 19 CFR 351.221.
Dated: October 31, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-28525 Filed 11-7-02; 8:45 am]
BILLING CODE 3510-05-M