[Federal Register: January 14, 2009 (Volume 74, Number 9)]
[Notices]
[Page 2049-2055]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14ja09-39]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-929]
Final Determination of Sales at Less Than Fair Value and
Affirmative Determination of Critical Circumstances: Small Diameter
Graphite Electrodes from the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: January 14, 2009.
SUMMARY: The Department of Commerce (the Department) has determined
that small diameter graphite electrodes 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 735 of the Tariff
Act of 1930, as amended (the Act). The final dumping margins for this
investigation are listed in the ``Final Determination Margins'' section
below. The period covered by the investigation is July 1, 2007, through
December 31, 2007 (the POI).
FOR FURTHER INFORMATION CONTACT: Magd Zalok or Drew Jackson, AD/CVD
Operations, Office 4, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC, 20230; telephone: (202) 482-
4162 and 482-4406, respectively.
SUPPLEMENTARY INFORMATION:
Background
The Department published its preliminary determination of sales at
LTFV on August 21, 2008. See Small Diameter Graphite Electrodes From
the People's Republic of China: Preliminary Determination of Sales at
Less Than Fair Value, Postponement of Final Determination, and
Affirmative Preliminary Determination of Critical Circumstances, in
Part, 73 FR 49408 (August 21, 2008) (Preliminary Determination). On
August 25, 2008, the Department received ministerial error allegations
from petitioners\1\ and one
[[Page 2050]]
respondent, the Fangda Group.\2\ On August 26, 2008, petitioners
submitted a ministerial error allegation with respect to Fushun Jinly
Petrochemical Carbon Co., Ltd. (Fushun Jinly), another respondent in
the investigation. On August 28, 2008, in response to the Department's
request, petitioners submitted information regarding the effect the
alleged errors have on the dumping margin calculated for the Fangda
Group. After reviewing the allegations, the Department determined that
the Preliminary Determination included significant ministerial errors
with regard to the Fangda Group. On September 22, 2008, the Department
published its amended preliminary determination of sales at LTFV. See
Small Diameter Graphite Electrodes from the People's Republic of China:
Amended Preliminary Determination of Sales at Less Than Fair Value, 73
FR 54561 (September 22, 2008) (Amended Preliminary Determination).
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\1\ The petitioners in this investigation are SGL Carbon LLC and
Superior Graphite Co.
\2\ The following companies comprise the Fangda Group: Fushun
Carbon Co., Ltd. (Fushun Carbon), Fangda Carbon New Material Co.,
Ltd. (Fangda Carbon), Chengdu Rongguang Carbon Co., Ltd. (Chengdu
Rongguang), Beijing Fangda Carbon Tech Co., Ltd. (Beijing Fangda),
and Hefei Carbon Co., Ltd. (Hefei Carbon).
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On September 22, 2008, M. Brashem, Inc. (Brashem), a U.S. importer
of small diameter graphite electrodes, requested that the Department
correct its amended preliminary determination by applying the Fangda
Group's cash deposit rate to Hefei Carbon, one of the companies in the
Fangda Group. See Brashem's September 22, 2008 submission to the
Department. On October 8, 2008, the Department issued a memorandum
stating that it would not further amend its Preliminary Determination
because Brashem's allegation did not constitute a ministerial error.
See Memorandum from Magd Zalok, International Trade Compliance Analyst,
to Abdelali Elouaradia, Director, Office 4, dated October 8, 2008.
Between August 25, 2008, and September 18, 2008, the Department
conducted verifications of the following companies in the Fangda Group:
Fushun Carbon, Fangda Carbon, Chengdu Rongguang and Beijing Fangda. See
the ``Verification'' section below for additional information.
On August 25, 2008, Fushun Jinly filed an untimely and unsolicited
submission with the Department in which it made substantial revisions
to its factors of production (FOP) database. In response to requests
from the Department, on August 27, 2008, and September 3, 2008, Fushun
Jinly filed submissions with the Department explaining the untimely
revisions. In a letter issued to Fushun Jinly on September 9, 2008, the
Department rejected the untimely new database, as well as the August
27, 2008 and September 3, 2008 submissions, and informed Fushun Jinly
of the Department's intention not to verify any of its information
because the untimely submission raised serious questions as to the
credibility of its previously reported information. See Letter to
Fushun Jinly, dated September 9, 2008 (September 9, 2008 Letter).
On October 6, 2008, the petitioners requested that the Department
issue an amended preliminary scope determination to include connecting
pin joining systems (connecting pins) in the scope of the
investigation.
In response to the Department's invitation to comment on the
Preliminary Determination, on November 3, 2008, the petitioners, the
Fangda Group and Fushun Jinly filed case briefs. The petitioners, the
Fangda Group and Fushun Jinly filed rebuttal briefs on November 10,
2008. Upon requests from the petitioners, the Fangda Group and Fushun
Jinly, on November 20, 2008, the Department held a public hearing.
Analysis of Comments Received
All of the issues raised in the case and rebuttal briefs submitted
in this investigation are addressed in the ``Issues and Decision
Memorandum for the Final Determination in the Less-Than-Fair-Value
Investigation of Small Diameter Graphite Electrodes from the People's
Republic of China,'' dated January 5, 2009, which is hereby adopted by
this notice (Issues and Decision Memorandum). Appendix I to this notice
contains a list of the issues addressed in the Issues and Decision
Memorandum. The Issues and Decision Memorandum, which is a public
document, is on file in the Central Records Unit (CRU) at the Main
Commerce Building, Room 1117, and is accessible on the Web at http://
ia.ita.doc.gov/frn. The paper copy and electronic version of the
memorandum are identical in content.
Changes Since the Preliminary Determination
Based on our analysis of the comments received, we have made the
following changes to our preliminary determination:
1. We based our determination with respect to Fushun Jinly on total
adverse facts available (AFA) because its questionnaire responses were
not verifiable and because Fushun Jinly failed to cooperate to the best
of its ability with this investigation. As total AFA, we found Fushun
Jinly to be part of the PRC-wide entity.
2. We assigned the Fangda Group a dumping margin based on total AFA
because we found its FOP data to be unreliable and because the Fangda
Group failed to cooperate to the best of its ability with this
investigation. As total AFA, we assigned the Fangda Group the highest
margin in this proceeding.
3. We have determined that critical circumstances exist with
respect to the Fangda Group, the separate rate companies, and the PRC-
wide entity, including Fushun Jinly.
4. We have assigned the separate rate companies a dumping margin
equal to the simple average of the margins alleged in the petition. See
the Antidumping Petition for Small Diameter Graphite Electrodes for the
Peoples Republic of China, dated January 17, 2008, and amendment to
Petition, dated January 30, 2008.
5. We determined that connecting pins are covered by the scope of
the investigation.
Scope of Investigation
The merchandise covered by this investigation includes all small
diameter graphite electrodes of any length, whether or not finished, of
a kind used in furnaces, with a nominal or actual diameter of 400
millimeters (16 inches) or less, and whether or not attached to a
graphite pin joining system or any other type of joining system or
hardware. The merchandise covered by this investigation also includes
graphite pin joining systems for small diameter graphite electrodes, of
any length, whether or not finished, of a kind used in furnaces, and
whether or not the graphite pin joining system is attached to, sold
with, or sold separately from, the small diameter graphite electrode.
Small diameter graphite electrodes and graphite pin joining systems for
small diameter graphite electrodes are most commonly used in primary
melting, ladle metallurgy, and specialty furnace applications in
industries including foundries, smelters, and steel refining
operations. Small diameter graphite electrodes and graphite pin joining
systems for small diameter graphite electrodes that are subject to this
investigation are currently classified under the Harmonized Tariff
Schedule of the United States (HTSUS) subheading 8545.11.0000. The
HTSUS number is provided for convenience and customs purposes, but the
written description of the scope is dispositive.
[[Page 2051]]
Scope Comments
In their October 6, 2008, submission, as well as their November 3,
2008, case brief, the petitioners argued that the scope of this
investigation should include all connecting pins for small diameter
graphite electrodes, whether or not they are sold separately from the
graphite electrodes, and requested that the Department amend its
preliminary determination to include connecting pins in the scope of
the investigation. The respondents argued that connecting pins are
within the scope of the investigation when they are sold with graphite
electrodes (either attached to the electrode or unattached), but not
when they are sold separately from the graphite electrodes (i.e., when
the connecting pins are not part of an electrode order). For the
reasons discussed in the Issues and Decision Memorandum, the Department
has determined that all connecting pins are included in the scope of
this investigation. The scope description found in the ``Scope of
Investigation'' section above reflects this determination. See Issues
and Decision Memorandum at Comment 2.
Verification
As provided in section 782(i) of the Act, we conducted
verifications of the Fangda Group's information. See the Department's
verification reports for the Fangda Group, on file in the CRU. In
conducting the verifications, we used standard verification procedures,
including examination of relevant accounting and production records, as
well as original source documents provided by the respondent.
Adverse Facts Available
Section 776(a)(2) of the Act provides that, if an interested party
(A) withholds information requested by the Department, (B) fails to
provide such information by the deadline, or in the form or manner
requested, (C) significantly impedes a proceeding, or (D) provides
information that cannot be verified, the Department shall use, subject
to section 782(d) of the Act, facts otherwise available in reaching the
applicable determination. Section 782(d) of the Act allows the
Department, subject to section 782(e) of the Act, to disregard all or
part of a deficient or untimely response from a respondent.
Pursuant to section 782(e) of the Act, the Department shall not
decline to consider submitted information if all of the following
requirements are met: (1) the information is submitted by the
established deadline; (2) the information can be verified; (3) the
information is not so incomplete that it cannot serve as a reliable
basis for reaching the applicable determination; (4) the interested
party has demonstrated that it acted to the best of its ability; and
(5) the information can be used without undue difficulties.
Section 776(b) of the Act authorizes the Department to use an
adverse inference with respect to an interested party if the Department
finds that the party failed to cooperate by not acting to the best of
its ability to comply with a request for information.
A. Total Adverse Facts Available for Fushun Jinly
On August 25, 2008, after the preliminary determination, and on the
same day that the verification of the Fangda Group began, Fushun Jinly
filed untimely and unsolicited new information consisting of
substantial revisions to its FOP database, and other previously
undisclosed information. In its untimely submission and subsequent
submissions explaining the untimely submission, Fushun Jinly: (1)
revealed for the first time that it sold by-products during the POI,
although it had repeatedly stated that it reused its by-products; (2)
admitted for the first time that the subcontractors who performed
graphitization would not provide any documents to support the FOP data
they had submitted; (3) reported substantial reductions to consumption
quantities for major graphitization inputs consumed by the same
subcontractors whose records could not be verified; (4) provided
company records which call into question the number of subcontractors
reportedly used in the graphitization process during the POI, and
whether Fushun Jinly accurately and fully reported to the Department
its FOP data for such a process; (5) provided production documents
indicating that it could have reported the FOP data using control
number (CONNUM) characteristics in addition to power level, which it
had repeatedly denied it was able to do prior to the preliminary
determination; and (6) reported FOP data for certain graphite
electrodes and connecting pins separately, contrary to its repeated
contention that it could not do so. On September 9, 2008, the
Department rejected Fushun Jinly's untimely August 25, 2008, FOP
submission. See September 9, 2008 Letter. In rejecting the untimely FOP
database, the Department stated that the untimely database and
subsequent related submissions: (1) indicated that Fushun Jinly had
previously failed to properly report significant FOP data for one of
the two types of electrodes sold during the POI; (2) called into
question the accuracy and verifiability of the FOP data reported for
graphitization; (3) called into question claims regarding the number of
subcontractors used during the POI and the level of product specificity
to which FOP data could have been reported; (4) indicated that Fushun
Jinly may have purchased graphitized semi-finished products in addition
to the graphitized semi-finished products supplied by subcontractors.
See id. Given the foregoing concerns, the Department stated that it
would not be appropriate to verify any of the information reported by
Fushun Jinly. See id .
Fushun Jinly's untimely FOP submission contained information that
the Department had repeatedly sought throughout the investigation, yet
Fushun Jinly repeatedly failed to provide the requested information by
the deadlines established for submitting such information. Thus, we
have determined that Fushun Jinly's actions significantly impeded the
proceeding. Moreover, Fushun Jinly's untimely FOP submission and
subsequent related submissions demonstrated that important elements of
the FOP data on the record were either inaccurate, improperly reported,
and/or could not be verified. Additionally, Fushun Jinly's actions
demonstrate that it failed to cooperate by not acting to the best of
its ability to comply with requests from the Department. Accordingly,
pursuant to sections 776(a)(2)(A), (B), (C) and (D) and 776(b) of the
Act, we have used AFA in reaching our final determination with respect
to Fushun Jinly. Specifically, we have treated Fushun Jinly as part of
the PRC-wide entity and assigned Fushun Jinly the PRC-wide rate of
159.64 percent.\3\ See the sections entitled ``The PRC-Wide Rate'' and
``Corroboration,'' below, for a discussion of the selection and
corroboration of the PRC-Wide rate. See also the accompanying Issues
and Decision Memorandum at Comment 1 for details.
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\3\ The Department incorrectly listed 159.34 percent as the
highest petition margin in the Preliminary Determination. In fact,
the highest margin alleged in the Petition is 159.64 percent. See
the Petition, and Enclosure 4 of petitioners' January 30, 2008,
addendum to Petition.
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Total Adverse Facts Available for the Fangda Group
During verification of the Fangda Group's responses, the Department
found that the Fangda Group: (1) failed to report FOP data for Hefei
Carbon, one of the companies within the Fangda Group that produced
small diameter graphite electrodes with characteristics that matched
the CONNUM
[[Page 2052]]
characteristics reported for certain U.S. sales; (2) failed to identify
the existence of, and report FOP data for, a number of tollers that
performed significant processes on small diameter graphite electrodes
with characteristics that matched the CONNUM characteristics reported
for certain U.S. sales; and (3) had production records that could have
been used to report factor quantities using more of the CONNUM criteria
then were used, despite repeated claims to the contrary. The missing
information noted above had been previously requested by the
Department. Thus, the record shows that the Fangda Group withheld
information requested by the Department and significantly impeded the
proceeding. Moreover, given the importance of the missing information,
we have determined that we lack reliable data to calculate normal
value. Consequently, pursuant to sections 776(a)(2)(A), and (C) of the
Act, we have determined that the Fangda Group's dumping margin should
be based on total facts available.
Furthermore, the Fangda Group possessed the information needed to
report FOP data for Hefei Carbon and the production records that could
have been used to report factor quantities using more of the CONNUM
criteria then were used. Thus, the Fangda Group could have reported to
the Department the FOP data for Hefei Carbon and factor quantities that
were more CONNUM-specific. Moreover, the Fangda Group never informed
the Department of the existence of the unreported tollers, nor is there
any indication on the record that the Fangda Group ever attempted to
obtain any data from the unreported tollers. Accordingly, we find that
the Fangda Group failed to act to the best of its ability in this
investigation, and, pursuant to section 776(b) of the Act, the use of
an adverse inference is warranted.
Section 776(b) of the Act authorizes the Department to use, as AFA:
information derived from: (1) the petition; (2) the final determination
from the LTFV investigation; (3) a previous administrative review; or
(4) any other information placed on the record. In selecting a rate for
AFA, the Department selects one that is sufficiently adverse ``as to
effectuate the purpose of the facts available rule to induce
respondents to provide the Department with complete and accurate
information in a timely manner.'' See Notice of Final Determination of
Sales at Less Than Fair Value: Static Random Access Memory
Semiconductors From Taiwan, 63 FR 8909 (February 23, 1998). It is the
Department's practice to select, as AFA, the higher of: (a) the highest
margin alleged in the petition or (b) the highest calculated rate for
any respondent in the investigation. See Final Determination of Sales
at Less Than Fair Value: Certain Cold-Rolled Flat-Rolled Carbon Quality
Steel Products From the People's Republic of China, 65 FR 34660 (May
31, 2000) and accompanying Issues and Decisions Memorandum at Facts
Available (Cold-Rolled Flat-Rolled Steel From the PRC). The highest
margin alleged in the Petition is 159.64 percent. Since the highest
dumping margin derived from the Petition is higher than the weighted-
average margins calculated in this case, we have, as AFA, assigned the
Fangda Group the highest margin alleged in the Petition, 159.64
percent. See the Petition, and Enclosure 4 of petitioners' January 30,
2008, addendum to Petition.
In addition, because the shipment data reported by the Fangda Group
in connection with critical circumstances were not reported on the
basis of shipment date as required by the Department, and could not be
verified, we have found, as AFA, that imports were massive with respect
to the Fangda Group. See the section of this notice entitled ``Critical
Circumstances,'' below, for a discussion of our critical circumstances
determination and the section of this notice entitled
``Corroboration,'' below, for a discussion of the corroboration of the
highest petition rate. See, also, the accompanying Issues and Decision
memorandum at Comment 3 for details.
Critical Circumstances
In the Preliminary Determination, the Department found that there
was reason to believe or suspect that critical circumstances exist for
imports of subject merchandise from the Fangda Group and the separate
rate companies because: (1) in accordance with section 733(e)(1)(A)(ii)
of the Act, the person by whom, or for whose account, the merchandise
was imported knew or should have known that the exporter was selling
the subject merchandise at less than its fair value and that there was
likely to be material injury by reason of such sales; and (2) in
accordance with section 733(e)(1)(B) of the Act, the Fangda Group and
the separate rate companies had massive imports during a relatively
short period. However, the Department did not preliminarily find that
there was reason to believe or suspect that critical circumstances
existed for imports of subject merchandise from Fushun Jinly or the
PRC-wide entity. See Preliminary Determination. In their case briefs,
the petitioners argued that because the application of total AFA to
both Fushun Jinly and the Fangda Group is warranted, the Department
should find that critical circumstances exist with respect to these
companies as well as the separate rate companies and the PRC-wide
entity. If the Department does not apply total AFA to Fushun Jinly and
the Fangda Group, the petitioners argue that, as partial AFA, the
Department should find a massive increase in subject imports from these
companies and determine the critical circumstances exist with respect
to Fushun Jinly as well as the Fangda Group and the separate rate
companies. Fushun Jinly and the Fangda Group contend that the
Department's critical circumstances determination should be based on
their reported export data, rather than AFA. If, however, the
Department determines, as AFA, that massive imports exist, the
respondents argue that the Department should not find critical
circumstances for any party if the dumping margins are less than 25
percent for the Fangda Group and the separate rate companies, including
Fushun Jinly. In any case, the respondents maintain that the Department
should not rely upon import statistics for HTSUS number 8545.11.00.00
to determine whether massive subject imports exist since this HTSUS
number includes imports of non-subject merchandise (i.e., large
diameter graphite electrodes).
As noted above, the Department was not able to verify the shipment
data reported by the Fangda Group in connection with critical
circumstances because the data were not reported on the basis of
shipment date as required by the Department. Since the shipment data
provided by the Fangda Group could not be verified, we find that the
Fangda Group failed to cooperate by not acting to the best of its
ability to provide the requested shipment data. Accordingly, we have
based our determination of whether there were massive imports with
respect to the Fangda Group on AFA (see section 776 (a)(2)(D) and 776
(b) of the Act). The Statement of Administrative Action (SAA)
accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol.
1 (1994) at 870, notes that the Department may employ adverse
inferences in selecting from among the facts available ``to ensure that
the party does not obtain a more favorable result by failing to
cooperate fully.'' The SAA also instructs the Department to consider,
in employing adverse inferences, ``the extent to which a party may
benefit from its own lack of cooperation.'' Id. Based on the shipment
[[Page 2053]]
data reported by the Fangda Group in connection with critical
circumstances, in the Preliminary Determination the Department found
massive imports with respect to the Fangda Group. To ensure that the
Fangda Group does not obtain a more favorable result by failing to
cooperate, for this final determination, we continue to find, as AFA,
that imports of subject merchandise were massive for the Fangda Group.
In addition, based on our comparison of the unadjusted volume of
imports of graphite electrodes from the PRC reported by the
International Trade Commission's (ITC) DataWeb for the periods February
2008 through July 2008 and August 2007 through January 2008, we found
that imports were massive for the separate rate companies and the PRC-
wide entity, including Fushun Jinly. We did not reduce the ITC's
DataWeb import volumes by shipment volumes reported by the Fangda Group
and Fushun Jinly, or rely upon these companies' shipment volumes in
determining whether massive imports exist for the separate rate
companies because the shipment data submitted by Fushun Jinly and the
Fangda Group were not verified. Thus, these data are no longer reliable
for purposes of our final critical circumstances analysis. Moreover,
because the dumping margins applied to all interested parties in this
investigation exceed 25 percent, we find that importers should have
known that graphite electrodes were being sold at LTFV. We also
continue to find the ITC's preliminary injury determination in the
instant investigation is sufficient to impute knowledge of material
injury to the importers. Accordingly, the Department finds that
critical circumstances exist for the Fangda Group, the separate rate
applicants, and the PRC-wide entity, including Fushun Jinly. For
further details, see Comment 4 of the Issues and Decision Memorandum.
Surrogate Country
In the Preliminary Determination, we selected India as the
appropriate surrogate country noting that it was on the Department's
list of countries that are at a level of economic development
comparable to the PRC and that: (1) India is a significant producer of
merchandise comparable to subject merchandise; and, (2) reliable Indian
data for valuing factors of production are readily available. See
Preliminary Determination. No party has commented on our selection of
India as the appropriate surrogate country. For the final
determination, we continue to find India to be the appropriate
surrogate country in this investigation.
Separate Rates
In proceedings involving non-market-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 assigned a single antidumping duty deposit rate. It is the
Department's policy to assign all exporters of merchandise subject to
an 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. 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), as amplified by 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); see also 19 C.F.R. Sec. 351.107(d).
In the Preliminary Determination, the Department granted separate-
rate status to Fushun Jinly, Fushun Carbon, Fangda Carbon, Beijing
Fangda, Chengdu Rongguang, and the following separate rate applicants:
Jilin Carbon Import and Export Company (Jilin Carbon); Guanghan Shida
Carbon Co., Ltd. (Guanghan Shida); Nantong River-East Carbon Joint
Stock Co., Ltd. (Nantong River); Xinghe County Muzi Carbon Co. Ltd.
(Muzi Carbon); Brilliant Charter Limited (Brilliant Charter);
Shijiazhuang Huanan Carbon Factory (Huanan Carbon); Shenyang Jinli
Metals & Minerals Imp & Exp Co., Ltd. (Shenyang Jinli); Shanghai
Jinneng International Trade Co., Ltd. (Shanghai Jinneng); Dalian Thrive
Metallurgy Import and Export Co., Ltd.; GES (China) Co., Ltd. (Dalian
Thrive); and Qingdao Haosheng Metals & Minerals Imp & Exp Co., Ltd.
(Qingdao Metal). As discussed above, the Department decided, as AFA, to
treat Fushun Jinly as part of the PRC-wide entity. Moreover, we note
that the information that Fushun Jinly provided to the Department to
demonstrate the absence of de facto and de jure control was not
verified. Consequently we have not granted Fushun Jinly a separate
rate. Although we are basing the Fangda Group's margin on total AFA,
the Department was able to verify the Fangda Group's separate rate
information (e.g., ownership, selection of management process, etc.)
for Fushun Carbon, Fangda Carbon, Beijing Fangda, and Chengdu
Rongguang. Thus, we are continuing to find that the evidence placed on
the record of this investigation by the Fangda Group demonstrates both
a de jure and de facto absence of government control, with respect to
Fushun Carbon, Fangda Carbon, Beijing Fangda, and Chengdu Rongguang,
exports of the merchandise under investigation and thus they are
eligible for separate-rate status. Because no parties commented on its
separate-rate status of the other separate-rate applicants, we continue
to find the other separate-rate applicants are eligible for separate-
rate status. Since we assigned the Fangda Group a dumping margin based
on total AFA, and we are considering Fushun Jinly to be part of the
PRC-wide entity, we do not have any mandatory respondents in this
investigation whose dumping margin is not based on total AFA. Thus, we
have assigned the other separate rate companies a dumping margin equal
to the simple average of the margins alleged in the petition.
The PRC-Wide Rate
In the Preliminary Determination, the Department considered certain
non-responsive PRC producers/exporters to be part of the PRC-wide
entity because they did not respond to our requests for information and
did not demonstrate that they operated free of government control over
their export activities. No additional information regarding these
entities has been placed on the record since the publication of the
Preliminary Determination. Since the PRC-wide entity did not provide
the Department with requested information, pursuant to section
776(a)(2)(A) of the Act (which covers situations where an interested
party withholds requested information), we continue to find it
appropriate to base the PRC-wide rate on facts available. Moreover,
given that the PRC-wide entity did not respond to our request for
information, we continue to find that it failed to cooperate to the
best of its ability to comply with a request for information. Thus,
pursuant to section 776(b) of the Act, we have continued to use an
adverse inference in selecting from among the facts otherwise
available. See, e.g., 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) (a case in which the Department applied an adverse inference in
determining the Russia-wide rate); Final Determination of Sales at Less
Than Fair Value: Certain Artists Canvas from the People's Republic of
China, 71 Fed. Reg. 16116, 16118-19 (March 30, 2006) (a case in which
the Department applied an adverse inference in determining the PRC-wide
rate).
[[Page 2054]]
Pursuant to section 776(b) of the Act, the Department may select,
as AFA information derived from: (1) the petition; (2) the final
determination from the LTFV investigation; (3) a previous
administrative review; or (4) any other information placed on the
record. As noted above, in order to induce respondents to provide the
Department with complete and accurate information in a timely manner,
the Department's practice is to select, as AFA, the higher of: (a) the
highest margin alleged in the petition or (b) the highest calculated
rate for any respondent in the investigation. See Cold-Rolled Flat-
Rolled Steel From the PRC. The highest margin alleged in the Petition
is 159.64 percent. Since the dumping margin derived from the Petition
is higher than the weighted-average margins calculated in this case, we
have continued to assign the PRC-wide entity a dumping margin of 159.64
percent. See the Petition, and Enclosure 4 of petitioners' January 30,
2008, addendum to Petition.
Since we begin with the presumption that all companies within an
NME country are subject to government control and only the exporters
listed under the ``Final Determination Margins'' section below have
overcome that presumption, we are applying a single antidumping rate
(i.e., the PRC-wide rate) to all exporters of subject merchandise from
the PRC, other than the exporters listed in the ``Final Determination
Margins'' section of this notice. See, e.g., Synthetic Indigo from the
People's Republic of China: Notice of Final Determination of Sales at
Less Than Fair Value, 65 FR 25706 (May 3, 2000) (applying the PRC-wide
rate to all exporters of subject merchandise in the PRC based on the
presumption that the export activities of the companies that failed to
respond to the Department's questionnaire were controlled by the PRC
government).
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, to the extent
practicable, examine the reliability and relevance of the information
submitted. See 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); see, e.g.,
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).
To corroborate the 159.64 percent margin used as AFA for the PRC-
wide entity, we relied upon our pre-initiation analysis of the adequacy
and accuracy of the information in the Petition. See Small Diameter
Graphite Electrodes from the People's Republic of China: Initiation of
Antidumping Duty Investigation, 73 FR 8287 (February 13, 2008)
(Initiation Notice); see also Notice of Final Determination of Sales at
Less Than Fair Value and Affirmative Final Determination of Critical
Circumstances: Circular Welded Carbon Quality Steel Pipe from the
People's Republic of China, 73 FR 31970, 31972 (June 5, 2008) (where
the Department relied upon pre-initiation analysis to corroborate the
highest margin alleged in the petition). During the initiation stage,
we examined evidence supporting the calculations in the petition and
the supplemental information provided by petitioners 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. Id. Since the initiation, the
Department has found no other corroborating information available in
this case, and received no comments from interested parties as to the
relevance or reliability of this secondary information. Based on the
above, for the final determination, the Department finds that the rates
derived from the Petition are corroborated to the extent practicable
for purposes of the AFA rate assigned to the PRC-wide entity and the
Fangda Group.
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. This
change in practice is described in Policy Bulletin 05.1:
{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, ``Separate Rates Practice and Application of
Combination Rates in Antidumping Investigations Involving Non-Market
Economy Countries.''
Final Determination Margins
We determine that the following weighted-average dumping margins
exist for the period July 1, 2007, through December 31, 2007:
------------------------------------------------------------------------
Exporter & Producer Weighted-Average Margin
------------------------------------------------------------------------
Fushun Carbon Co., Ltd. Produced by: 159.64[percnt]
Fushun Carbon Co., Ltd..................
Fangda Carbon New Material Co., Ltd. 159.64[percnt]
Produced by: Fangda Carbon New Material
Co., Ltd................................
Beijing Fangda Carbon Tech Co., Ltd. 159.64 [percnt]
Produced by: Chengdu Rongguang Carbon
Co., Ltd.; Fangda Carbon New Material
Co., Ltd.; or Fushun Carbon Co., Ltd....
Chengdu Rongguang Carbon Co., Ltd. 159.64[percnt]
Produced by: Chengdu Rongguang Carbon
Co., Ltd................................
Jilin Carbon Import and Export Company 132.90[percnt]
Produced by: Sinosteel Jilin Carbon Co.,
Ltd.....................................
[[Page 2055]]
Guanghan Shida Carbon Co., Ltd. Produced 132.90[percnt]
by: Guanghan Shida Carbon Co., Ltd......
Nantong River-East Carbon Joint Stock 132.90[percnt]
Co., Ltd. Produced by: Nantong River-
East Carbon Co., Ltd.; or Nantong Yangzi
Carbon Co., Ltd.........................
Xinghe County Muzi Carbon Co. Ltd. 132.90[percnt]
Produced by: Xinghe County Muzi Carbon
Co., Ltd................................
Brilliant Charter Limited Produced by: 132.90[percnt]
Nantong Falter New Energy Co., Ltd.; or
Shanxi Jinneng Group Co., Ltd...........
Shijiazhuang Huanan Carbon Factory 132.90[percnt]
Produced by: Shijiazhuang Huanan Carbon
Factory.................................
Shenyang Jinli Metals & Minerals Imp & 132.90[percnt]
Exp Co., Ltd. Produced by: Shenyang
Jinli Metals & Minerals Imp. & Exp. Co.,
Ltd.....................................
Shanghai Jinneng International Trade Co., 132.90[percnt]
Ltd. Produced by: Shanxi Jinneng Group
Datong Energy Development Co., Ltd......
Dalian Thrive Metallurgy Import and 132.90[percnt]
Export Co., Ltd. Produced by: Linghai
Hongfeng Carbon Products Co., Ltd.;
Tianzhen Jintian Graphite Electrodes
Co., Ltd.; Jiaozuo Zhongzhou Carbon
Products Co., Ltd.; Heilongjiang Xinyuan
Carbon Products Co., Ltd.; Xuzhou
Jianglong Carbon Manufacture Co., Ltd.;
or Xinghe Xinyuan Carbon Products Co.,
Ltd.....................................
GES (China) Co., Ltd. Produced by: 132.90[percnt]
Shanghai GC Co., Ltd.; Fushun Jinli
Petrochemical Carbon Co., Ltd.; Xinghe
County Muzi Carbon Plant and Linyi
County Lubei Carbon Co., Ltd. Shandong
Province................................
Qingdao Haosheng Metals & Minerals Imp & 132.90[percnt]
Exp Co., Ltd. Produced by: Sinosteel
Jilin Carbon Co., Ltd...................
PRC-Wide Entity.......................... 159.64[percnt]
------------------------------------------------------------------------
Disclosure
We will disclose to parties the calculations performed within five
days of the date of public announcement of this determination in
accordance with 19 C.F.R. Sec. 351.224(b).
Continuation of Suspension of Liquidation
In the Preliminary Determination, the Department found that
critical circumstances exist with respect to imports of subject
merchandise from the Fangda Group and the separate rate companies but
the Department found that critical circumstances did not exist with
respect to Fushun Jinly and the PRC-wide entity. As noted above, for
the final determination, the Department has found that critical
circumstances exist with respect to imports of subject merchandise from
the Fangda Group, the separate rate companies, and the PRC-wide entity,
including Fushun Jinly. Thus, in accordance with section 735(c)(1)(B)
of the Act, we are directing U.S. Customs and Border Protection (CBP)
to continue to suspend liquidation of all imports of subject
merchandise from the Fangda Group and the separate rate applicants\4\
entered, or withdrawn from warehouse, for consumption on or after May
23, 2008, which is 90 days prior to the date of publication of the
Preliminary Determination in the Federal Register. For the PRC wide
entity, including Fushun Jinly, we will instruct CBP to suspend
liquidation of all entries of subject merchandise entered, or withdrawn
from warehouse, for consumption on or after May 23, 2008, pursuant to
section 735(c)(4)(B) of the Act. We will instruct CBP to continue to
require a cash deposit or the posting of a bond for all companies based
on the estimated weighted-average dumping margins shown above. The
suspension of liquidation instructions will remain in effect until
further notice.
---------------------------------------------------------------------------
\4\ As noted above, the separate rate applicants are Jilin
Carbon; Guanghan Shida Carbon Co., Ltd; Nantong River East Carbon
Co. Ltd.; Xinghe County Muzi Carbon Co. Ltd.; Brilliant Charter
Limited; Shijiazhuang Huanan Carbon Factory; Shenyang Jinli Metals &
Minerals Imp & Exp Co., Ltd.; Shanghai Jinneng International Trade
Co., Ltd.; Dalian Thrive Metallurgy Import and Export Co., Ltd.; GES
(China) Co., Ltd.; and Qingdao Haosheng Metals & Minerals Imp & Exp
Co., Ltd..
---------------------------------------------------------------------------
ITC Notification
In accordance with section 735(d) of the Act, we have notified ITC
of our final determination of sales at LTFV. As our final determination
is affirmative, in accordance with section 735(b)(2) of the Act, the
ITC will determine whether the domestic industry in the United States
is materially injured, or threatened with material injury, by reason of
imports or sales (or the likelihood of sales) for importation of the
subject merchandise within 45 days of this final determination. If the
ITC determines that material injury or threat of material injury does
not exist, the proceeding will be terminated and all securities posted
will be refunded or canceled. If the ITC determines that such injury
does exist, the Department will issue an antidumping duty order
directing CBP to assess, upon further instruction by the Department,
antidumping duties on all imports of the subject merchandise entered,
or withdrawn from warehouse, for consumption on or after the effective
date of the suspension of liquidation.
Notification Regarding APO
This notice also serves as a reminder to the parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 C.F.R. Sec. 351.305. Timely notification of
return or destruction of APO materials or conversion to judicial
protective order is hereby requested. Failure to comply with the
regulations and the terms of an APO is a sanctionable violation. This
determination and notice are issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: January 5, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
Appendix I
Comment 1: Whether Fushun Jinly's Dumping Margin Should be Based on
Adverse Facts Available
Comment 2: Whether Graphite Connecting Pins are Covered by the Scope of
the Investigation
Comment 3: Whether the Fangda Group's Dumping Margin Should be Based on
Adverse Facts Available
Comment 4: Whether Critical Circumstances Exist for the Fangda Group,
Fushun Jinly, the Separate Rate Applicants, and the PRC-Wide Entity
[FR Doc. E9-699 Filed 1-13-09; 8:45 am]
BILLING CODE 3510-DS-S