E6-18787. Carbazole Violet Pigment 23 From the People's Republic of China; Preliminary Results of Antidumping Duty Administrative Review and Rescission in Part

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce (the Department) is conducting the administrative review of the antidumping duty order on carbazole violet pigment 23 (CVP 23) from the People's Republic of China (PRC) for the period June 24, 2004, through November 30, 2005. We are rescinding this review with respect to Trust Chem Co., Ltd./Boson Enterprises Ltd. (collectively Trust Chem) and Nantong Haidi Chemical Company (Haidi). We have preliminarily determined that sales have not been made below normal value (NV) by the respondent, Tianjin Hanchem International Trading Co., Ltd. (Hanchem). If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (CBP) to liquidate the appropriate entries without regard to antidumping duties.

Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.

DATES:

Effective Date: November 7, 2006.

FOR FURTHER INFORMATION CONTACT:

Rebecca Trainor or Brian Smith, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On December 1, 2005, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on CVP 23 from the PRC for the period June 24, 2004, through November 30, 2005. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 70 FR 72109 (December 1, 2005). On December 27, 2005, the Department received a request to conduct an administrative review from Trust Chem, an exporter of the subject merchandise during the review period. On December 28, 2005, we received a request for review from Haidi, a producer/exporter of CVP 23, and from Hanchem, an exporter of CVP 23 to the United States during the review period. On February 1, 2006, we published in the Federal Register a notice of the initiation of the antidumping duty administrative review of CVP 23 from the PRC for the period June 24, 2004, through November 30, 2005. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 71 FR 5241 (February 1, 2006).

On February 6, 2006, we issued an antidumping duty questionnaire to Trust Chem, Haidi, and Hanchem. On March 2, 2006, and May 1, 2006, Trust Chem and Haidi, respectively, timely withdrew their requests for administrative review. Both companies requested that the Department rescind the review with respect to them, in accordance with 19 CFR 351.213(d)(1). We received questionnaire and supplemental questionnaire responses from Hanchem between March and July 2006.

On April 4, 2006, we invited interested parties to comment on surrogate country selection and to provide publicly available information for valuing the factors of production (FOP). On July 7, 2006, we received comments on surrogate country selection from the petitioners, Nation Ford Chemical Co. and Sun Chemical Corp. Between July 21, 2006, and October 12, 2006, the petitioners and Hanchem filed information for valuing the FOPs, as well as argument with respect to the valuation of one particular input, chloranil.

On August 21, 2006, we extended the time limit for the preliminary results in this review until November 1, 2006. See Carbazole Violet Pigment 23 from the People's Republic of China: Notice of Extension of Time Limit for 2004-2005 Administration {sic} Review, 71 FR 50386 (August 25, 2006).

Period of Review

The period of review (POR) is June 24, 2004, through November 30, 2005.

Scope of Order

The merchandise covered by this order is carbazole violet pigment 23 identified as Color Index No. 51319 and Chemical Abstract No. 6358-30-1, with the chemical name of diindolo [3,2-b:3',2'-m]triphenodioxazine, 8,18-dichloro-5, 15-diethy-5,15-dihydro-, and molecular formula of C₃₄ H₂₂ Cl₂ N₄ O₂.^[1] The subject merchandise includes the crude pigment in any form (e.g., dry powder, paste, wet cake) and finished pigment in the form of presscake and dry color. Pigment dispersions in any form (e.g., pigments dispersed in oleoresins, flammable solvents, water) are not included within the scope of this order. The merchandise subject to this order is classifiable under subheading 3204.17.9040 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 scope of this order is dispositive.

Partial Rescission of Review

Pursuant to 19 CFR 351.213(d)(1), the Department may rescind an administrative review in whole, or in part, if interested parties that requested a review withdraw their requests within 90 days of the date of publication of notice of initiation of the requested review. As noted above in the “Background” section of this notice, Trust Chem and Haidi withdrew their requests for an administrative review on March 2, 2006, and May 1, 2006, respectively. Because the petitioners did not request an administrative review for these companies and the requests to withdraw were made within the time limit specified under section 19 CFR 351.213(d)(1), we are rescinding this administrative review with respect to Trust Chem and Haidi.

Non-Market Economy Country Status

Hanchem did not contest the Department's treatment of the PRC as a non-market economy (NME) country, and the Department has treated the PRC as a NME country in all past antidumping duty investigations and administrative reviews and continues to do so in this case. See, e.g., Honey from the People's Republic of China: Final Results and Final Rescission, In Part, of Antidumping Duty Administrative Review, 71 FR 34893 (June 16, 2006) (Honey); and Final Determination of Sales at Less than Fair Value and Final Partial Affirmative Determination of Critical Circumstances: Diamond Sawblades and Parts Thereof from the People's Republic of China, 71 FR 29303 (May 22, 2006) (Sawblades). No interested party in this case has argued that we should do otherwise. Designation as a NME country remains in effect until it is revoked by the Department. See section 771(18)(C)(i) of the Tariff Act of 1930, as amended (Act).

Surrogate Country

Section 773(c)(1) of the Act directs us to base NV on the NME producer's FOPs, valued in a surrogate market-economy country or countries considered to be appropriate by the Department. In accordance with section 773(c)(4) of the Act, in valuing the FOPs, the Department shall utilize, to the extent possible, the prices or costs of FOPs in one or more market-economy countries that are: (1) At a level of economic development comparable to that of the NME country; and (2) significant producers of comparable merchandise.

The Department has previously determined that India, Sri Lanka, Indonesia, the Philippines, and Egypt are countries comparable to the PRC in terms of economic development. See the February 9, 2006, memorandum from Ron Lorentzen, Director, Office of Policy, to Irene Darzenta Tzafolias, Acting Director, Office 2, entitled, “Antidumping Duty Administrative Review of Carbazole Violet Pigment 23 (CVP23) from the People's Republic of China (PRC): Request for a List of Surrogate Countries.” Customarily, we select an appropriate surrogate country based on the availability and reliability of data from the countries that are significant producers of comparable merchandise. For PRC cases, the primary surrogate country has often been India if it is a significant producer of comparable merchandise. In this case, we found that India is a significant producer of comparable merchandise. See the August 3, 2006, memorandum to the file entitled “2004-2005 Administrative Review of the Antidumping Duty Order on Carbazole Violet Pigment 23 from the People's Republic of China: Selection of a Surrogate Country.”

The Department used India as the surrogate country and, accordingly, calculated NV using Indian prices to value the PRC producer's FOPs, when available and appropriate. The sources of the surrogate factor values are discussed under the “Normal Value” section below and in the November 1, 2006, memorandum to the file entitled, “Preliminary Results of Review of the Antidumping Duty Order on Carbazole Violet Pigment 23 from the People's Republic of China: Factor Valuation Memorandum” (Factor Valuation Memorandum). We obtained and relied upon publicly available information whenever possible.

In accordance with 19 CFR 351.301(c)(3)(ii), for the final results of this administrative review, interested parties may submit publicly available information to value FOPs within 20 days after the date of publication of these preliminary results.

Separate Rates

In proceedings involving 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 rate. It is the Department's policy to assign all exporters of subject merchandise subject to review in a NME country a single rate unless an exporter can demonstrate that it is sufficiently independent of government control to be entitled to a separate rate. See, e.g., Honey from the People's Republic of China: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 70 FR 74764, 74765 (December 16, 2005) (unchanged in final results); and Sawblades, 71 FR at 29307.

We have considered whether the reviewed company based in the PRC is eligible for a separate rate. The Department's separate-rate test to determine whether an exporter is independent from government control does not consider, in general, macroeconomic/border-type controls, e.g., export licenses, quotas, and minimum export prices, particularly if these controls are imposed to prevent dumping. The test focuses, rather, on controls over the investment, pricing, and output decision-making process at the individual firm level. See, e.g., Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of Antidumping Administrative Review, 62 FR 61276, 61279 (November 17, 1997); and Preliminary Determination of Sales at Less than Fair Value: Honey from the People's Republic of China, 60 FR 14725,14727-28 (March 20, 1995).

To establish whether an exporter is sufficiently independent of government control to be entitled to a separate rate, the Department analyzes the exporter in light of select criteria, discussed below. See Final Determination of Sales at Less Than Fair Value: Sparklers from the People's Republic of China, 56 FR 20585, 22587 (May 6, 1991) (Sparklers); and 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). Under this test, exporters in NME countries are entitled to separate, company-specific margins when they can demonstrate an absence of government control over exports, both in law (de jure) and in fact (de facto).Hanchem provided company-specific separate-rate information and stated that it met the standards for receiving a separate rate. Hanchem has stated that there is no element of government control over its export activities and has requested a separate, company-specific rate.

A. Absence of De Jure Control

The Department considers the following de jure criteria in determining whether an individual exporter may be granted a separate rate: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies. See Sparklers, 56 FR 20588.

Hanchem has placed on the record statements and documents to demonstrate an absence of de jure control including its list of shareholders, business license, and the Company Law of the People's Republic of China, as revised Ocotber 27, 2005 (Company Law). Other than limiting Hanchem to activities referenced in the business license, we found no restrictive stipulations associated with the license. In addition, in previous cases the Department has analyzed the Company Law and found that it establishes an absence of de jure control. See, e.g., Certain Non-Frozen Apple Juice Concentrate from the People's Republic of China: Final Results, Partial Rescission and Termination of a Partial Deferral of the 2002-2003 Administrative Review, 69 FR 65148, 65150 (November 10, 2004). We have no information in this segment of the proceeding that would cause us to reconsider this determination. Therefore, based on the foregoing, we have preliminarily found an absence of de jure control for Hanchem.

B. Absence of De Facto Control

As stated in previous cases, there is some evidence that certain enactments of the PRC central government have not been implemented uniformly among different sectors and/or jurisdictions in the PRC. See Final Determination of Sales at Less Than Fair Value: Certain Preserved Mushrooms from the People's Republic of China, 63 FR 72255 (December 31, 1998). Therefore, the Department has determined that an analysis of de facto control is critical in determining whether respondents are, in fact, subject to a degree of government control which would preclude the Department from assigning separate rates.

The Department typically considers four factors in evaluating whether a particular exporter is subject to de facto government control of its export functions: (1) Whether the exporter sets its own export prices independent of the government and without the approval of a government authority; (2) whether the exporter has authority to negotiate and sign contracts and other agreements; (3) whether the exporter has autonomy from the government in making decisions regarding the selection of its management; and (4) whether the exporter retains the proceeds of its export sales and makes independent decisions regarding disposition of profits or financing of losses. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol From the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995).

With regard to de facto control, Hanchem reported that: (1) It independently set prices for sales to the United States with customers and these prices are not subject to review by any government organization; (2) it did not coordinate with other exporters or producers to set the price or to determine to which market the companies will sell subject merchandise; (3) the PRC Chamber of Commerce does not coordinate the export activities of Hanchem; (4) its general manager has the authority to contractually bind it to sell subject merchandise; (5) its shareholders appoint its general manager; (6) there is no restriction on its use of export revenues; and (7) its shareholders ultimately determine the disposition of its profits. Additionally, Hanchem's questionnaire responses did not suggest that pricing is coordinated among exporters. Furthermore, our analysis of Hanchem's questionnaire responses reveals no other information indicating government control of its export activities. Therefore, based on the information on the record, we preliminarily determine that there is an absence of de facto government control with respect to Hanchem's export functions, and that Hanchem has met the criteria for the application of a separate rate.

Normal Value Comparisons

To determine whether sales of CVP 23 to the United States by Hanchem were made at less than NV, we compared export price (EP) to NV, as described in the “Export Price” and “Normal Value” sections of this notice, pursuant to section 771(35) of the Act.

Export Price

Because Hanchem sold subject merchandise to unaffiliated purchasers in the United States prior to importation into the United States (or to unaffiliated resellers outside the United States with knowledge that the merchandise was destined for the United States) and use of a constructed export price methodology is not otherwise indicated, we have used EP in accordance with section 772(a) of the Act.

We calculated EP for Hanchem based on FOB port prices to unaffiliated purchaser(s) in the United States. We made deductions from the U.S. sale price for movement expenses, in accordance with section 772(c)(2)(A) of the Act, consisting of inland freight from the plant to the port of exportation. To value truck freight, we used the freight rates published by the Indian Freight Exchange, available at http://www.infreight.com. The truck freight rates are contemporaneous with the POR; therefore, we made no adjustments for inflation. See the November 1, 2006, memorandum to the file entitled, “U.S. Price and Factors of Production Adjustments for the Preliminary Results” (Preliminary Calculation Memorandum), and the Factor Valuation Memorandum.

Normal Value

Section 773(c)(1) of the Act provides that, in the case of a NME, the Department shall determine NV using an FOP methodology if the merchandise is exported from a NME country and the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value under section 773(a) of the Act.

The Department will base NV on FOP because the presence of government controls on various aspects of these economies renders price comparisons and the calculation of production costs invalid under our normal methodologies. Therefore, we calculated NV based on FOP in accordance with sections 773(c)(3) and (4) of the Act and 19 CFR 351.408(c). The FOPs include: (1) Hours of labor required; (2) quantities of raw materials employed; (3) amounts of energy and other utilities consumed; and (4) representative capital costs. We used the FOPs reported by respondents for materials, energy, labor, and packing.

In accordance with 19 CFR 351.408(c)(1), when a producer sources an input from a market-economy country and pays for it in market-economy currency, the Department will normally value the factor using the actual price paid for the input. See 19 CFR 351.408(c)(1); see also Lasko Metal Products v. United States, 43 F.3d 1442, 1445-1446 (Fed. Cir. 1994) (affirming the Department's use of market-based prices to value certain FOPs). Where a portion of the input is purchased from a market-economy supplier and the remainder from a NME supplier, the Department will normally use the price paid for the inputs sourced from market-economy suppliers to value all of the input, provided the volume of the market-economy inputs as a share of total purchases from all sources is “meaningful.” See Antidumping Duties; Countervailing Duties; Final rule, 62 FR 27295, 27366 (May 19, 1997); Shakeproof v. United States, 268 F.3d 1376, 1382 (Fed. Cir. 2001). See also 19 CFR 351.408(c)(1).

With regard to both the Indian import-based surrogate values and the market-economy input values, we have disregarded prices that we have reason to believe or suspect may be subsidized. See Omnibus Trade and Competitiveness Act of 1988 (OCTA), Conference Report to Accompany H.R. 3, H. Report No. 100-578, 590-91, 1988 U.S. Code and Adm. N. 1547, 1623 (1988) (H.R. Rep. 100-578 (1988)); Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China; Final Results of 1999-2000 Administrative Review, Partial Rescission of Review, and Determination Not to Revoke Order in Part, 66 FR 57420 (November 15, 2001), and accompanying Issues and Decision Memorandum at Comment 1. We have found that India, Indonesia, South Korea, and Thailand maintain broadly available, non-industry-specific export subsidies, and it is reasonable to infer that exports to all markets from these countries may be subsidized. See Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review, 70 FR 54007, 54011 (September 13, 2005) (unchanged in final results); and China National Machinery Import & Export Corporation v. United States, 293 F. Supp. 2d 1334 (CIT 2003), aff'd 104 Fed. App. 183 (Fed. Cir. 2004).

We are also guided by the statute's legislative history that explains that it is not necessary to conduct a formal investigation to ensure that such prices are not subsidized. See H.R. Rep. 100-578 (1988). Rather, the Department bases its decision on information that is available to it at the time it is making its determination. Therefore, we have not used prices from these countries either in calculating the Indian import-based surrogate values or in calculating market-economy input values. See Factor Valuation Memorandum.

Factor Valuations

To calculate NV, we multiplied the reported per-unit factor quantities by publicly available Indian surrogate values. In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices by including freight costs to make them delivered prices. Specifically, we added to the Indian import surrogate values a surrogate freight cost calculated using the shorter of the reported distance from the domestic supplier to the factory or the distance from the nearest port of export to the factory where appropriate (i.e., where the sales terms for the market-economy inputs were not delivered to the factory). This adjustment is in accordance with the decision of the Court of Appeals for the Federal Circuit in Sigma Corp. v. United States, 117 F. 3d 1401 (Fed. Cir. 1997).

We valued benzene, bromoethane, chlorobenzene, benzene sulfonyl chloride, caustic soda, caustic soda solution, chloranil, solvent, nekal, ethyl alcohol, methyl alcohol, sodium sulfide, trithylamine, catalyst, paper bags, plastic film, plastic bags, pallets, and steam coal using India import statistics as published by the World Trade Atlas. We valued hydrochloric acid, nitric acid, salt, and dimethyl formamide using Indian domestic market prices reported in Chemical Weekly. Where necessary, we adjusted the surrogate values to reflect inflation/deflation using the Indian Wholesale Price Index as published in the International Financial Statistics of the International Monetary Fund. We further adjusted these prices to account for freight costs incurred between the supplier and respondent. The Factor Valuation Memorandum includes a detailed description of all surrogate values used for the respondent.

Hanchem reported that meaningful percentages of its purchases of o-dichlorobenzene and carbazole were sourced from market-economy countries and paid for in market-economy currencies. Pursuant to 19 CFR 351.408(c)(1), we used the actual price paid by Hanchem for these inputs. We adjusted these values to account for freight costs incurred between the supplier and respondent. See Factor Valuation Memorandum and Preliminary Calculation Memorandum. We obtained surrogate electricity rates from retail pricing data for India found in the International Energy Agency's “Energy Prices & Taxes Quarterly Statistics 2003” report which we inflated to the POR. We valued water using rates from the Maharashtra Industrial Development Corporation.

For direct labor, indirect labor, and packing labor, consistent with 19 CFR 351.408(c)(3), we used the PRC regression-based wage rate as reported on Import Administration's Web site, Expected Wages of Selected NME Countries, revised in November 2005. See Expected Wages of Selected NME Countries (revised November 2005) (available at http://ia.ita.doc.gov/​wages). The source of these wage rate data on the Import Administration's Web site is the Yearbook of Labour Statistics 2003, ILO (Geneva: 2003), Chapter 5B: Wages in Manufacturing. Because this regression-based wage rate does not separate the labor rates into different skill levels or types of labor, we have applied the same wage rate to all skill levels and types of labor reported by the respondent. See Factor Valuation Memorandum and Preliminary Calculation Memorandum.

To determine factory overhead, depreciation, selling, general, and administrative expenses, interest expenses, and profit for the finished product, we relied on rates derived from the financial statements of Pidilite Industries, Ltd., an Indian producer of comparable merchandise. We applied these ratios to Hanchem's costs (determined as noted above) for materials, labor, and energy. See Factor Valuation Memorandum and Preliminary Calculation Memorandum.

Currency Conversion

We made currency conversions into U.S. dollars, in accordance with section 773A(a) of the Act, based on the exchange rates in effect on the dates of the U.S. sales, as certified by the Federal Reserve Bank.

Preliminary Results of Review

The weighted-average dumping margin is as follows:

Manufacturer/producer/exporter	Margin percentage
Tianjin Hanchem International Trading Co., Ltd.	0.00

Disclosure

The Department will disclose calculations performed for these preliminary results to the parties within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Any interested party may request a hearing within 30 days of publication of these preliminary results. See 19 CFR 351.310(c). Any hearing, if requested, will generally be held two days after the scheduled date for submission of rebuttal briefs. See 19 CFR 351.310(d). Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of these preliminary results of review. See 19 CFR 351.309(c)(ii). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than 37 days after the date of publication. See 19 CFR 351.309(d). Further, parties submitting written comments should provide the Department with an additional copy of those comments on diskette. The Department will issue the final results of this administrative review, which will include the results of its analysis of issues raised in any comments, and at a hearing, within 120 days of publication of these preliminary results, pursuant to section 751(a)(3)(A) of the Act.

Assessment Rates

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, where applicable, the importer-specific ad valorem duty assessment rate 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 the 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 Hanchem, the cash deposit rate will be that established in the final results of this review (except, if the rate is zero or de minimis, no cash deposit will be required); (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 217.94 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.

Notification to Importers

This notice also serves as a preliminary 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 review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

We are issuing and publishing these preliminary results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.221(b).

Dated: November 1, 2006.

Joseph A. Spetrini,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  The bracketed section of the product description, [3,2-b:3',2'-m], is not business proprietary information, but is part of the chemical nomenclature.