2010-378. Silicon Metal from the People's Republic of China: Final Results and Partial Rescission of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On July 9, 2009, the Department of Commerce (the “Department”) published in the Federal Register the Preliminary Results of the 2007-2008 administrative review of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”). We gave interested parties an opportunity to comment on the Preliminary Results.¹ Based upon our analysis of the comments and information received, we made changes to the margin calculations for the final results. We continue to find that certain exporters have sold subject merchandise at less than normal value during the period of review (“POR”), June 1, 2007, through May 31, 2008.

EFFECTIVE DATE:

January 12, 2010.

FOR FURTHER INFORMATION CONTACT:

Bobby Wong, Susan Pulongbarit, or Jerry Huang, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone], or [phone].

SUPPLEMENTARY INFORMATION:

Background

On July 30, 2008, the Department initiated an administrative review of five producers/exporters of subject merchandise from the PRC: Jiangxi Gangyuan Silicon Industry Co., Ltd. (“Jiangxi Gangyuan”); Lao Silicon Co., Ltd. (“Lao Silicon”); S. AU Trade Co., Ltd. (“AU Trade”); and Shanghai Jinneng International Trade Co., Ltd. (“Shanghai Jinneng”) and its affiliated producer, Datong Jinneng Industrial Silicon Co., Inc. (“Datong Jinneng”) (collectively, the “Jinneng Companies”). In the Preliminary Results the Department rescinded the review with respect to Datong Jinneng and Lao Silicon in accordance with 19 CFR 351.213(d)(3), because the Department preliminary determined that neither company had made shipments of subject merchandise during the POR. Also, in the Preliminary Results, the Department preliminarily determined that AU Trade will remain part of the PRC-wide entity for the purposes of this review because the Department received an untimely filing of AU Trade's Separate Rate Application (“SRA”). Thus, two companies remain subject to this review: Shanghai Jinneng and Jiangxi Gangyuan.

As noted above, on July 9, 2009, the Department published the Preliminary Results of this administrative review.² On July 29, 2009, Globe Metallurgical Inc. (“Petitioner”) submitted additional surrogate value information. On July 29, 2009, the Jinneng Companies and Jiangxi Gangyuan (“Respondents”) submitted additional surrogate value information.

On August 10, 2009, Petitioner requested a hearing. On September 17, 2009, the Department held public and closed hearings to discuss the final results of the instant review.

In response to requests by interested parties, on August 18, 2009, we extended the deadline for parties to submit case briefs and rebuttal briefs until August 21, 2009, and September 4, 2009, respectively. On August 21, 2009, we received case briefs from Petitioner and Respondents. On September 3, 2009, we extended the deadline for parties to submit rebuttal briefs until September 9, 2009. On September 10, 2009, we received rebuttal briefs from Petitioner and Respondents.

On October 29, 2009, the Department partially extended the deadline for the completion of the final results of this review until November 6, 2009.³ On December 1, 2009, the Department fully extended the deadline for the completion of the final results of this review until January 5, 2010.⁴

On November 10, 2009, the Department received letters from the Embassy of the PRC and the Ministry of Commerce for the PRC (“MOFCOM”) (collectively, “PRC government letters”), and subsequently requested comments from interested parties regarding the letters and a related remand determination.⁵ On December 2, 2009, the Department received comments from MOFCOM pursuant to the Department's request. On December 3, 2009, the Department received comments from Petitioner and Respondents pursuant to the Department's request. On December 5, 2009, the Department received a letter from the Chinese Minister of Commerce, and subsequently requested comments from interested parties regarding the letter.⁶ On December 16, 2009, the Department received comments from Petitioner regarding the December 5, 2009, letter.

On December 22, 2009, the Department requested comments on Indian import data from the World Trade Atlas under Harmonized Tariff Schedule 6305.330.00 “Sacks and Bags, for Packing of Goods, of Polyethylene/Polypropylene Strips Nes.” from the 2005-2006 new shipper reviews of silicon metal from China.⁷ No parties submitted comments to the Department regarding this data.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by parties to this review are addressed in the “Silicon Metal from the People's Republic of China: Issues and Decision Memorandum for the Final Results of 2007/2008 Administrative Review,” which is dated concurrently with this notice (“I&D Memo”). A list of the issues which parties raised and to which we respond in the I&D Memo is attached to this notice as an Appendix. The I&D Memo is a public document and is on file in the Central Records Unit (“CRU”), Main Commerce Building, Room 1117, and is accessible on the Department's website at http://www.trade.gov/​ia. The paper copy and electronic version of the memorandum are identical in content.

Changes Since the Preliminary Results

Based on a review of the record as well as comments received from parties regarding our Preliminary Results, we have made revisions to Jiangxi Gangyuan and Shanghai Jinneng's margin calculations for the final results. For all changes to Jiangxi Gangyuan and Shanghai Jinneng's calculations, see I&D Memo and the company specific analysis memorandums.

Scope of the Order

Imports covered by this review are shipments of silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight. Also covered by this review is silicon metal from the PRC containing between 89.00 and 96.00 percent silicon by weight but which contains a higher aluminum content than the silicon metal containing at least 96.00 percent but less than 99.99 percent silicon by weight. Silicon metal is currently provided for under subheadings 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule (HTS) as a chemical product, but is commonly referred to as a metal. Semiconductor-grade silicon (silicon metal containing by weight not less than 99.99 percent of silicon and provided for in subheading 2804.61.00 of the HTS) is not subject to this review. Although the HTS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Final Partial Rescission

In the Preliminary Results, the Department preliminarily rescinded this review with respect to the following companies: Datong Jinneng and Lao Silicon. Subsequent to the Preliminary Results, no information was submitted on the record indicating that the above companies made sales to the United States of subject merchandise during the POR. Thus, in accordance with 19 CFR 351.213(d)(3), and consistent with our practice, we are rescinding this review with respect to the above-named companies for the period of June 1, 2007, through May 31, 2008.

Separate Rates

In our Preliminary Results, we treated Jiangxi Gangyuan and Datong Jinneng as separate rate companies. We have not received any information since the issuance of the Preliminary Results that provides a basis for the reconsideration of this treatment. Therefore, the Department continues to find that Jiangxi Gangyuan and Datong Jinneng meet the criteria for a separate rate.

In our Preliminary Results, we determined that the Department received an untimely filing of AU Trade's SRA. The Department notes that AU Trade was considered as part of the PRC-wide entity and did not receive its own separate rate. We have not received any information since the issuance of the Preliminary Results that provides a basis for the reconsideration of this determination. Therefore, the Department continues to find that AU Trade will remain part of the PRC-wide entity for the purposes of this review, as the Department did not conduct a review of its separate rate eligibility.

Facts Available

Section 776(a)(2) of the Act provides that if an interested party: (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act; (C) significantly impedes a determination under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.

Section 782(c)(1) of the Act provides that, if an interested party promptly notifies the Department that it is unable to submit the information in the requested form and manner, together with a full explanation and suggested alternative forms in which such party is able to submit the information, the Department shall take into consideration the ability of the party to submit the information in the requested form and manner and may modify such requirements to the extent necessary to avoid imposing an unreasonable burden on that party.

For this final determination, in accordance with section 776(a)(2)(B) of the Act and 782(e)(3) of the Act, we have determined that the use of facts available is appropriate for Shanghai Jinneng's consumption of electricity. The record evidence demonstrates that Shanghai Jinneng consumed additional electricity in the preparation of raw materials and in finishing production, which was not previously reported as production electricity. Therefore, we have adjusted the production electricity factor of production (“FOP”) to include electricity consumed in the raw material and finishing workshops. However, since the workshops are used in the production of other non-subject merchandise, and that the company only began to report the electricity consumption in January of 2008, we have applied neutral facts available to allocate the proper consumption in the production of subject silicon metal, and to derive estimated electricity consumption for the first seven months of the POR. See I&D Memo at Comment 13.

Final Results of Review

The weighted-average dumping margins for the POR are as follows:

Silicon Metal from the PRC

Exporter	Weighted-Average Margin (Percent)
Jiangxi Gangyuan	50.02%
Shanghai Jinneng	23.16%
PRC-Wide Entity	139.49%

Assessment

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of review. Pursuant to 19 CFR 351.212(b)(1), we will calculate importer-specific (or customer) ad valorem duty assessment rates based on the ratio of the total amount of the dumping margins calculated for the examined sales to the total entered value of those same sales. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any importer-specific assessment rate calculated in the final results of this review is above de minimis.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of these final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be the rate established in these final results of review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, a zero cash deposit rate will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 139.49 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Reimbursement of Duties

This notice also serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f) 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 Department's presumption that reimbursement of antidumping duties has occurred and the subsequent assessment of doubled antidumping duties.

Administrative Protective Orders

This notice also serves as a reminder to parties subject to administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

We are issuing and publishing this administrative review and notice in accordance with sections 751(a)(1) and 777(i) of the Act.

Dated: January 5, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Appendix I Decision Memorandum

I. General Issues:

Comment 1: Treatment of VAT and Export Taxes

Comment 2: Selection of Appropriate Surrogate Value for Silica Fume

Comment 3: Selection of Appropriate Surrogate Value for Electricity

Comment 4: Selection of Appropriate Surrogate Value Financial Statements

Comment 5: Treatment of the Silica Fume By-Product Offset

Comment 6: Selection of Appropriate Surrogate Value for Coal

Comment 7: Selection of Appropriate Surrogate Value for Truck Freight

Comment 8: Selection of Appropriate Surrogate Value for Oxygen

Comment 9: Selection of Appropriate Surrogate Value for Polypropylene Bags

Comment 10: Inclusion of Certain U.S. Sales in Margin Calculations

Comment 11: Freight Distances Reported by the Respondents

II. Shanghai Jinneng Issues

Comment 12: Treatment and Valuation of Graphite Powder

Comment 13: Datong Jinneng Reported Electricity Usage

III. Jiangxi Gangyuan Issues

Comment 14: Jiangxi Gangyuan's Production Quantity

Comment 15: Jiangxi Gangyuan's By-Product Offset

Footnotes

1.  See Silicon Metal From the People's Republic of China: Preliminary Results and Preliminary Rescission, in Part, of Antidumping Duty Administrative Review, 74 FR 32885 (July 9, 2009) (“Preliminary Results”).

2.  See Preliminary Results.

3.  See Silicon Metal From the People's Republic of China: Notice of Extension of Time Limit for the Final Results of the 2007 - 2008 Administrative Review, 74 FR 55811 (October 29, 2009).

4.  See Silicon Metal from the People's Republic of China: Notice of Second Extension of Time Limit for the Final Results of the 2007-2008 Administrative Review, 74 FR 62745 (December 1, 2009).

5.  See Letter From the Department of Commerce, To All Interested Parties Regarding 2007/2008 Administrative Review of Silicon Metal from the People's Republic of China, dated November 18, 2009.

6.  See Letter From the Department of Commerce, To All Interested Parties Regarding 2007/2008 Administrative Review of Silicon Metal from the People's Republic of China, dated December 11, 2009.

7.  See Silicon Metal from the People's Republic of China: Notice of Final Results of 2005/2006 New Shipper Reviews (“New Shipper Reviews”), 72 FR 58641 (October 16, 2007).