Antidumping: Refined brown aluminum oxide from China,
[Federal Register: September 26, 2003 (Volume 68, Number 187)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF COMMERCE
International Trade Administration
Notice of Final Determination of Sales at Less Than Fair Value: Refined Brown Aluminum Oxide (Otherwise known as Refined Brown Artificial Corundum or Brown Fused Alumina) from the People's Republic of China
AGENCY: Import Administration, International Trade Administration, Department of Commerce.
EFFECTIVE DATE: September 26, 2003.
FOR FURTHER INFORMATION CONTACT: David J. Goldberger, Jim Mathews or Tinna E. Beldin, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone (202) 482- 4136, (202) 482-2778 or (202) 482-1655, respectively.
We determine that refined brown aluminum oxide (RBAO) from the People's Republic of China (PRC) is being sold, or is 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). In addition, we determine that critical circumstances exist with respect to all PRC producers/exporters of the subject merchandise. The estimated margins of sales at LTFV are shown in the ``Continuation of Suspension of Liquidation'' section of this notice.
The preliminary determination in this investigation was published on May 6, 2003. See Notice of Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Refined Brown Aluminum Oxide (Otherwise known as Refined Brown Artificial Corundum or Brown Fused Alumina) from the People's Republic of China, 68 FR 23966 (Preliminary Determination). Since the preliminary determination, the following events have occurred.
In July 2003, we conducted verification of the questionnaire responses of the sole participating respondent in this case, Zibo Jinyu Abrasive Co., Ltd. (Jinyu).
We gave interested parties an opportunity to comment on the preliminary determination. In August 2003, we received case and rebuttal briefs from the following parties: the petitioners, C-E Minerals, Treibacher Schleifmittel Corporation, and Washington Mills Company, Inc.; the respondent Jinyu; and interested third parties Allied Mineral Products, Inc., Cometals, a Division of Commercial Metals Co., Saint Gobain Corporation, Dauber Company, Inc., Golden Dynamic Inc., China Abrasives Import and Export Corporation, and White Dove Group Import and Export Inc. (hereinafter interested third parties). The Department held a public hearing on August 20, 2003, at the request of the petitioners and the interested third parties.
Due to the closure of the federal government on September 18-19, the deadline for this final determination is September 22, 2003.
Scope of the Investigation
The merchandise covered by this investigation is ground, pulverized or refined brown artificial corundum, also known as refined brown aluminum oxide or brown fused alumina, in grit size of 3/8 inch or less. Excluded from the scope of the investigation is crude artificial corundum in which particles with a diameter greater than 3/8 inch constitute at least 50 percent of the total weight of the entire batch. The scope includes brown artificial corundum in which particles with a diameter greater than 3/8 inch constitute less than 50 percent of the total weight of the batch. The merchandise under investigation is currently classifiable under subheading 2818.10.20.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise under investigation is dispositive.
Period of Investigation
Pursuant to 19 CFR 351.204(b)(1), the period of investigation is April 1, 2002, through September 30, 2002, which corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition (i.e., October 2002).
Nonmarket Economy Status for the PRC
The Department has treated the PRC as a nonmarket economy (NME) country in all past antidumping investigations. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Pure Magnesium in Granular Form from the People's Republic of China, 66 FR 49345, 49346 (September 27, 2001). A designation as an NME remains in effect until it is revoked by the Department. See section 771(18)(C) of the Act. No party in this investigation has requested a revocation of the PRC's NME status. Therefore, we have continued to treat the PRC as an NME in this investigation. For further details, see Preliminary Determination at 23968.
In our preliminary determination, we found that Jinyu had met the criteria for receiving a separate antidumping rate. We have not received any information since the preliminary determination which would warrant reconsideration of our separate-rate determination with respect to this company. Therefore, we continue to find that Jinyu should be assigned an individual dumping margin.
For purposes of the final determination, we continue to find that India is the appropriate primary surrogate country for the PRC. For further discussion and analysis regarding the surrogate country selection for the PRC, see Preliminary Determination at 23970.
PRC-Wide Rate and Use of Facts Otherwise Available
As discussed in the Department's Preliminary Determination, Jinyu was the only exporter to respond to the Department's questionnaire and to cooperate in this investigation. Therefore, we have continued to calculate a company-specific rate for Jinyu only. However, in the preliminary determination, we stated that our review of U.S. import statistics from the PRC revealed that Jinyu did not account for all imports into the United States from the PRC. For this reason, we determined that some PRC exporters of subject merchandise failed to cooperate in this
investigation and assigned to them a rate based on adverse facts available pursuant to section 776(b) of the Act. See Preliminary Determination at 23969. These facts have not changed since the preliminary determination. Therefore, in accordance with our standard practice, as adverse facts available, we are continuing to assign as the PRC-wide rate the higher of: (1) the highest margin listed in the notice of initiation; or (2) the margin calculated for Jinyu. 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 People's Republic of China, 65 FR 34660 (May 31, 2000), and accompanying Issues and Decision Memorandum at Comment 1. For purposes of the final determination of this investigation, we are using the margin calculated for Jinyu as adverse facts available because it is higher than the margin of 131.38 percent stated in the notice of initiation.
Analysis of Comments Received
All issues raised in the case briefs by parties to this proceeding and to which we have responded are listed in the Appendix to this notice and addressed in the Decision Memorandum, which is adopted by this notice. A complete discussion of all issues raised in this investigation and the corresponding recommendations in this public memorandum is on file in the Central Records Unit, room B-099, of the main Department building. In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov. The paper copy and electronic version of the Decision Memorandum are identical in content.
Changes Since the Preliminary Determination
Based on our analysis of comments received, we have made certain changes to the margin calculations. These changes include:
[sbull] We used the value reported in the Defense Logistics Agency FY2000 Annual Report as the surrogate value for crude brown aluminum oxide.
[sbull] Based on our verification findings, we have included an additional sale of the subject merchandise in our final determination analysis, which Jinyu had inadvertently omitted in its original reporting.
[sbull] We revised Jinyu's reported consumption of electricity by allocating electricity consumption only to the brown and white aluminum oxide production, based on our verification findings.
[sbull] We recalculated Jinyu's labor factor by allocating labor based on actual production, rather than theoretical production, based on our verification findings.
[sbull] We did not add a separate packing labor factor to our calculation of normal value to avoid double-counting because we found at verification that the reported packing labor is part of the production line labor, which is already included in the direct labor factor.
For a discussion of these changes, see the ``Margin Calculations'' section of the Decision Memorandum and the Decision Memorandum comments.
In our preliminary determination, we found, pursuant to section 733(e)(1) of the Act, that there was a reasonable basis to believe or suspect that critical circumstances exist with respect to the subject merchandise from the respondent and all other producers/exporters. As discussed in detail in the preliminary determination, we first found that there is a history of dumping and material injury by reason of dumped imports. We then analyzed the import volume and value data placed on the record, in accordance with 19 CFR 351.206, and preliminarily determined that imports of the subject merchandise have been massive over the short period of time subsequent to the filing of the petition. See Preliminary Determination at 23971. In accordance with section 735(a)(3) of the Act, and based upon our verification of Jinyu's shipment data placed on the record, we determine that critical circumstances exist with respect to RBAO from Jinyu. We applied adverse facts available for all other producers / exporters as an adverse inference that critical circumstances apply for companies that refused to cooperate with the Department's requests for information. See September 18, 2003, Memorandum to File entitled Jinyu Shipment Data Analysis for the Final Determination and Decision Memorandum at Comments 1 and 2. Therefore, we are directing the U.S. Bureau of Customs and Border Protection (BCBP) to continue to suspend liquidation of any unliquidated entries of subject merchandise on or after the date 90 days prior to the date of publication of the preliminary determination in the Federal Register, as discussed below in the ``Continuation of Suspension of Liquidation'' section.
As provided in section 782(i) of the Act, we verified the information submitted by the respondent for use in our final determination. We used standard verification procedures including examination of relevant accounting and production records, and original source documents provided by Jinyu.
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are directing the BCBP to continue to suspend liquidation of all entries of RBAO from the PRC that are entered, or withdrawn from warehouse, for consumption on or after February 5, 2003, the date 90 days prior to the date of publication of the preliminary determination in the Federal Register, in accordance with our critical circumstances finding.
Effective on or after the date of publication of the Department's final determination, BCBP shall continue to require a cash deposit or the posting of a bond equal to the weighted-average amount by which the normal value exceeds the export price or constructed export price, as appropriate, as indicated in the chart below. These suspension of liquidation instructions will remain in effect until further notice.
The weighted-average dumping margins are as follows:
Weighted-Average Margin Exporter/Manufacturer
Zibo Jinyu Abrasive Co., Ltd........................
Yes PRC-wide Rate.......................................
The PRC-wide rate applies to all entries of the subject merchandise except for entries from Jinyu.
We will disclose the calculations performed within five days of the date of the announcement of the final determination to parties in this proceeding in accordance with 19 CFR 351.224(b).
In accordance with section 735(d) of the Act, we have notified the International Trade Commission (ITC) of our determination. As our final determination is affirmative, the ITC will, within 45 days, determine whether these imports are materially injuring, or threaten material injury to, the U.S. industry. 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 the BCBP to assess 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 parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return/ 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 is issued and published pursuant to sections 735(d) and 777(i)(1) of the Act.
Dated: September 22, 2003. James J. Jochum, Assistant Secretary for Import Administration.
Appendix Issues in the Decision Memorandum
Use of Adverse Facts Available for Critical Circumstances 2. Seasonal Trend for Jinyu's Shipments 3. Surrogate Value for Crude Brown Aluminum Oxide 4. Application of Verification Findings
[FR Doc. 03-24396 Filed 9-25-03; 8:45 am]