[Federal Register Volume 64, Number 236 (Thursday, December 9, 1999)]
[Notices]
[Pages 68999-69003]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31984]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-840]
Manganese Metal from the People's Republic of China; Preliminary
Results and Partial Rescission of Antidumping Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review of Manganese Metal from the
People's Republic of China.
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SUMMARY: We have preliminarily determined that sales by China
Metallurgical Import & Export Hunan Corporation/Hunan Nonferrous Metals
Import & Export Associated Corporation have been made below normal
value during the period of review of February 1, 1998, through January
31, 1999. China Hunan International Economic Development (Group)
Corporation did not respond to our questionnaire and has been assigned
a dumping margin based on adverse facts available. If these preliminary
results are adopted in our final results of review, we will instruct
the U.S. Customs Service to assess antidumping duties based on the
difference between the export price and normal value on all appropriate
entries.
We have also determined that the review of China National
Electronics Import & Export Hunan Company and Minmetals Precious & Rare
Minerals Import & Export Corporation should be rescinded. Furthermore,
neither Shieldalloy Metallurgical Corporation nor London & Scandinavian
Metallurgical Co., Limited, subsidiaries of Metallurg, Inc., submitted
a timely request for review. Therefore, sales by these companies have
not been reviewed.
We invite interested parties to comment on these preliminary
results.
EFFECTIVE DATES: December 9, 1999.
FOR FURTHER INFORMATION CONTACT: Greg Campbell or Paul Stolz, Office I,
Antidumping/Countervailing Duty Enforcement, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue NW., Washington, DC 20230; telephone
(202) 482-2239 or (202) 482-4474, respectively.
SUPPLEMENTARY INFORMATION:
Applicable Statute
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended (the Act), are references to the provisions effective
January 1, 1995, the effective date of the amendments made to the Act
by the Uruguay Round Agreements Act (URAA). In addition, all references
to the Department's regulations are to 19 CFR part 351 (April 1998).
Background
On February 6, 1996, the Department of Commerce (the Department)
published in the Federal Register the antidumping duty order on
manganese metal from the People's Republic of China (PRC). See Notice
of Amended Final Determination and Antidumping Duty Order: Manganese
Metal from the People's Republic of China, 61 FR 4415 (February 6,
1996) (LTFV Investigation). In accordance with 19 CFR 351.213(b)(2), on
February 25, 1999, China Hunan International Economic Development
(Group) Corporation (HIED), China Metallurgical Import & Export Hunan
Corp./Hunan Nonferrous Metals Import & Export Associate Corp. (CMIECHN/
CNIECHN), and Minmetals Precious & Rare Minerals Import & Export
(Minmetals) requested that we conduct an administrative review of this
order. On February 26, 1999, Elkem Metals Company 1 (Elkem/
Eramet) requested that we conduct an administrative review of this
order covering HIED, CMIECHN/CNIECHN, Minmetals, and China National
Electronics Import & Export Hunan Company (CEIEC). On February 26,
1999, Kerr-McGee Chemical, LLC (Kerr-McGee) requested that we conduct
an administrative review of this order covering HIED.
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\1\ Subsequent to this request, on June 30, 1999, the manganese
metal production operations of Elkem Metals Company were acquired by
Eramet Marietta Inc. Thus, this petitioner is referred to in this
notice as ``Elkem/Eramet.''
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On March 29, 1999, in accordance with 19 CFR 351.213(c)(3), we
published a notice of initiation of this antidumping duty
administrative review. See 64 FR 14860. On April 20, 1999, Sumitomo
Canada, Limited, (SCL), submitted an entry of appearance and requested
that it receive a questionnaire so that it could establish the identity
of its Chinese supplier and that its sales were made to U.S. customers
not below normal value.
The Department is conducting this administrative review in
accordance with section 751 of the Act. The period of review (POR) is
February 1, 1998 through January 31, 1999.
Scope of Review
The merchandise covered by this review is manganese metal, which is
[[Page 69000]]
composed principally of manganese, by weight, but also contains some
impurities such as carbon, sulfur, phosphorous, iron and silicon.
Manganese metal contains by weight not less than 95 percent manganese.
All compositions, forms and sizes of manganese metal are included
within the scope of this administrative review, including metal flake,
powder, compressed powder, and fines. The subject merchandise is
currently classifiable under subheadings 8111.00.45.00 and
8111.00.60.00 of the Harmonized Tariff Schedule of the United States
(HTSUS). Although the HTSUS subheadings are provided for convenience
and customs purposes, our written description of the scope of this
proceeding is dispositive.
Partial Rescission
CEIEC notified the Department that it had not made any U.S. sales
of subject merchandise during the POR. Entry data provided by the U.S.
Customs Service confirms that there were no POR entries from CEIEC of
manganese metal. Also, on May 7, 1999, Minmetals informed the
Department that although it had made two shipments of subject
merchandise to the United States at the end of the POR, it believes
these shipments did not enter the United States during the POR. The
Department has not identified any customs entries of subject
merchandise from Minmetals during the POR.
Therefore, consistent with the Department's regulations and
practice, we are rescinding this review with respect to CEIEC and
Minmetals. See 19 CFR 351.213(d)(3); Silicon Metal from Brazil; Final
Results of Antidumping Duty Administrative Review, 61 FR 46763
(September 5, 1996).
Untimely Requests for Review
On April 20, 1999, 22 days after initiation of this administrative
review, SCL submitted an entry of appearance, a request for access to
business proprietary information and a request that it receive a
questionnaire. On April 28, 1999, Shieldalloy Metallurgical Corporation
(SMC) and London & Scandinavian Metallurgical Co., Limited, (LSM),
subsidiaries of Metallurg, Inc., submitted a request that the
Department extend the time limit for requesting an administrative
review of LSM and that the Department initiate a review of its U.S.
sales. The Department declined to extend the time limit for requesting
an administrative review and did not initiate a review of LSM. Although
these companies were not reviewed, based upon SCL's July 15, 1999
submission, and upon LSM's August 30, 1999 submission, we were able to
ascertain SCL's and LSM's suppliers and confirm that SCL and LSM
entered the merchandise at the appropriate cash deposit rate.
Therefore, we intend to instruct Customs to liquidate these entries
collecting the antidumping duties posted at the time of entry. This is
consistent with the Department's consideration of SCL's entries during
the last review. See Manganese Metal from the People's Republic of
China; Final Results of Antidumping Duty Administrative Review, 64 FR
49447 (September 13, 1999).
Verification
As provided in section 782(i) of the Act, we verified factor
information provided by a supplier, Xiang Tan Manganese Mine (XTMM). We
also conducted a sales verification at CMIECHN/CNIECHN. Our
verification at each of these companies consisted of standard
verification procedures, including the examination of relevant sales
and financial records and the selection of original documentation
containing relevant information. Our verification results are detailed
in the verification reports on file in the Central Records Unit (CRU)
in room B-099 of the Department's main building.
Separate Rates
It is the Department's standard policy to assign all exporters of
the merchandise subject to review in nonmarket economy (NME) countries
a single rate unless an exporter can demonstrate an absence of
government control, both in law and in fact, with respect to exports.
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 the criteria established in the 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 in the 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). Evidence supporting, though not requiring,
a finding of de jure absence of government control over export
activities includes: (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 at 20589. A de facto analysis of absence of
government control over exports is based on four factors--whether the
respondent: (1) Sets its own export prices independent of the
government and other exporters; (2) retains the proceeds from its
export sales and makes independent decisions regarding the disposition
of profits or financing of losses; (3) has the authority to negotiate
and sign contracts and other agreements; and (4) has autonomy from the
government regarding the selection of management. See Silicon Carbide
at 22587; see also Sparklers at 20589.
In our final LTFV determination, we determined that there was de
jure and de facto absence of government control of each company's
export activities and determined that each company warranted a company-
specific dumping margin. See LTFV Investigation. For this period of
review, CMIECHN/CNIECHN responded to the Department's request for
information regarding separate rates. We have found that the evidence
on the record is consistent with the final determination in the LTFV
Investigation and CMIECHN/CNIECHN continues to demonstrate an absence
of government control, both in law and in fact, with respect to this
company's exports, in accordance with the criteria identified in
Sparklers and Silicon Carbide.
Use of Facts Otherwise Available
Section 776(a)(2) of the Act provides that if an interested party
(1) withholds information that has been requested by the Department,
(2) fails to provide such information in a timely manner or in the form
requested, (3) significantly impedes a proceeding under the antidumping
statute, or (4) provides information that cannot be verified, the
Department shall use, subject to section 782(d), facts available in
reaching the applicable determination.
1. Application of Facts Available
We preliminarily determine that, in accordance with sections
776(a)(2)(A) and (C) of the Act, the use of facts otherwise available
is appropriate for HIED because it did not submit a response to our
questionnaire issued to it on April 20, 1999.
2. Use of Adverse Facts Available
In selecting from among the facts available, section 776(b) of the
Act authorizes the Department to use an adverse inference if the
Department finds that a party has failed to cooperate by not acting to
the best of its ability to comply with requests for information. See
Statement of Administrative Action (SAA), H.R. Doc. 316, Vol. 1, 103rd
Cong., 2d sess. 870 at 870 (1994). To examine whether the respondent
[[Page 69001]]
``cooperated'' by ``acting to the best of its ability'' under section
776(b) of the Act, the Department considers, inter alia, the accuracy
and completeness of submitted information and whether the respondent
has hindered the calculation of accurate dumping margins. See, e.g.,
Certain Welded Carbon Steel Pipes and Tubes From Thailand: Final
Results of Antidumping Duty Administrative Review, 62 FR 53808, 53819-
53820 (October 16, 1997).
As discussed above, HIED failed to respond to the Department's
questionnaire. Thus, we have determined that HIED withheld information
we requested and significantly impeded the antidumping proceeding.
We have, therefore, determined that HIED has not acted to the best
of its ability to comply with our requests for information.
Accordingly, consistent with section 776(b) of the Act, we have applied
adverse facts available to this company.
3. Corroboration of Secondary Information
In this review, we are using as adverse facts available the PRC-
wide rate (143.32 percent) determined for non-responding exporters
involved in the LTFV Investigation. This margin represents the highest
margin in the petition, as modified by the Department for the purposes
of initiation. See Initiation of Antidumping Duty Investigation:
Manganese Metal from the PRC, 59 FR 61869 (December 2, 1994) (LTFV
Initiation).
Information derived from the petition constitutes secondary
information within the meaning of the SAA. See SAA at 870. Section
776(c) of the Act provides that the Department shall, to the extent
practicable, corroborate secondary information from independent sources
reasonably at its disposal. The SAA provides that ``corroborate'' means
that the Department will satisfy itself that the secondary information
to be used has probative value. The SAA at 870, however, states further
that ``the fact that corroboration may not be practicable in a given
circumstance will not prevent the agencies from applying an adverse
inference.'' In addition, the SAA, at 869, emphasizes that the
Department need not prove that the facts available are the best
alternative information.
The PRC-wide rate being used in this proceeding as adverse facts
available was previously corroborated. See Manganese Metal from the
People's Republic of China; Final Results of Antidumping Duty
Administrative Review, 64 FR 49447 (September 13, 1999). We have no new
information that would lead us to reconsider that decision.
Export Price
For U.S. sales made by CMIECHN/CNIECHN we calculated an export
price, in accordance with section 772(a) of the Act, because the
subject merchandise was sold to unaffiliated purchasers in the United
States prior to importation into the United States and constructed
export price treatment was not otherwise indicated.
For these sales, we calculated export price based on the price to
unaffiliated purchasers. We deducted an amount, where appropriate, for
foreign inland freight, ocean freight, and marine insurance. The costs
for these items were valued in the surrogate country (see discussion
below).
U.S. Customs entry data for the POR indicate that CMIECHN/CNIECHN
was the direct exporter for many more shipments of manganese metal than
could be accounted for by CMIECHN/CNIECHN's verified U.S. sales. Based
upon our verification of CMIECHN/CNIECHN's total U.S. sales, we have
preliminarily determined that these additional entries are not U.S.
sales by CMIECHN/CNIECHN for the purposes of this review.
Given our preliminary finding that these additional entries are not
CMIECHN/CNIECHN sales for the purposes of this review, and consistent
with our methodology adopted in the previous review, we have not
calculated an export price for these entries. Also, for the reasons
enumerated in the Use of Facts Otherwise Available section below, we
likewise have not calculated an export price for HIED's sales.
Normal Value
1. Nonmarket-Economy Status
For the calculation of dumping margins for merchandise originating
in NME countries, section 773(c)(1) of the Act provides that the
Department shall determine normal value (NV) using a factors-of-
production methodology if (1) the merchandise is exported from an NME
country, and (2) 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 has treated the PRC as an NME country in all
previous antidumping cases. In accordance with section 771(18)(c)(i) of
the Act, any determination that a foreign country is a NME country
shall remain in effect until revoked by the administering authority.
None of the parties to this proceeding has contested such treatment in
this review. Furthermore, available 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. Therefore, we
treated the PRC as a NME country for purposes of this review and
calculated NV by valuing the factors of production in a comparable
market-economy country which is a significant producer of comparable
merchandise.
2. Surrogate-Country Selection
In accordance with section 773(c)(4) of the Act and section
351.408(b) of our regulations, we preliminarily determine that India is
the most comparable surrogate to the PRC. (See Memorandum to Susan
Kuhbach from Jeff May; ``Non-Market-Economy Status and Surrogate
Country Selection'' dated July 13, 1999, a public copy of which is
available in the Central Records Unit.) In addition, India is a
significant producer of comparable merchandise. Therefore, for this
review, we have selected India as the surrogate country and have used
publicly available information relating to India, unless otherwise
noted, to value the various factors of production.
3. Factors-of-Production Valuation
For purposes of calculating NV, we valued PRC factors of production
in accordance with section 773(c)(1) of the Act. Factors of production
include but are not limited to the following elements: (1) hours of
labor required; (2) quantities of raw materials employed; (3) amounts
of energy and other utilities consumed; and (4) representative capital
cost, including depreciation. In examining potential surrogate values,
we selected, where possible, the publicly available value which was:
(1) an average non-export value; (2) representative of a range of
prices within the POR or most contemporaneous with the POR; (3)
product-specific; and (4) tax-exclusive. Where we could not obtain a
POR-representative price for an appropriate surrogate value, we
selected a value in accordance with the remaining criteria mentioned
above and which was the closest in time to the POR. In accordance with
this methodology, we have valued the factors as described below.
We valued manganese ore using a June 1998 export price quote (in
U.S. dollars) from a Brazilian manganese mine for manganese carbonate
ore. We adjusted this price further to account for the reported
manganese content of the ore used in the PRC manufacture of the
[[Page 69002]]
subject merchandise and to account for the differences in
transportation distances.
To value various process chemicals used in the production of
manganese metal, we used prices obtained from the following Indian
sources: Indian Chemical Weekly (March, 1998 through March, 1999) and
the Monthly Statistics of Foreign Trade of India, Volume II--Imports
(March, 1998) (Import Statistics). Where necessary, we adjusted these
values to reflect inflation up to the POR using an Indian wholesale
price index (WPI) published by the International Monetary Fund (IMF).
Additionally, we adjusted these values, where appropriate, to account
for differences in chemical content and to account for freight costs
incurred between the suppliers and manganese metal producers.
To value the labor input, consistent with 19 CFR 351.408(c)(3), we
used the regression-based estimated wage rate for the PRC as calculated
by the Department.
For selling, general, and administrative expenses (SG&A), factory
overhead, and profit values, we used information from the Reserve Bank
of India Bulletin (January, 1997) for the Indian industrial grouping
``Processing and Manufacturing: Metals, Chemicals, and Products
Thereof.'' To value factory overhead, we calculated the ratio of
factory overhead expenses to the cost of materials and energy. Using
the same source, we also calculated the SG&A expense as a percentage of
the cost of materials, energy and factory overhead, and profit as a
percentage of the cost of production (i.e., materials, energy, labor,
factory overhead and SG&A).
For most packing materials values, we used per-unit values based on
the data in the Import Statistics. For iron drums, however, we used a
price quote from an Indian manufacturer rather than a value from the
Import Statistics because the quoted price was for the appropriate type
of container used, whereas the Import Statistics were aggregated over
various types of containers. We made further adjustments to account for
freight costs incurred between the PRC supplier and manganese metal
producers.
To value electricity, we used the average rate applicable to large
industrial users throughout India as reported in the 1995 Confederation
of Indian Industries Handbook of Statistics. We adjusted the March 1,
1995, value to reflect inflation up to the POR using the WPI published
by the IMF.
To value rail freight, we relied on rate tables published by the
Indian Railway Conference Association. To value truck freight, we used
a price quotation from an Indian freight provider.
For a more detailed explanation of the methodology used in
calculating various surrogate values, see Memorandum to the File from
Case Team; ``Calculations for the Preliminary Results'' (December 2,
1999).
Preliminary Results of the Review
We hereby determine that the following weighted-average margins
exist for the period February 1, 1998, through January 31, 1999:
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Margin
Manufacturer/exporter (percent)
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CMIECHN/CNIECHN............................................ 2.00
PRC-wide................................................... 143.32
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Because we are rescinding the review with respect to CEIEC and
Minmetals, the respective company-specific rates for these companies
remain unchanged. Likewise, because SMC and LSM submitted an untimely
request for review, LSM's sales of subject merchandise during the POR
were not reviewed. Moreover, an administrative review was not initiated
with respect to SCL for this POR, and, therefore, SCL's U.S. sales were
not reviewed.
Any interested party may request a hearing within 30 days of
publication of this notice. Any hearing, if requested, will be held
approximately 37 days after the publication of this notice. Interested
parties may submit written comments (case briefs) within 30 days of the
date of publication of this notice. Rebuttal comments (rebuttal
briefs), which must be limited to issues raised in the case briefs, may
be filed not later than 35 days after the date of publication. The
Department will issue a notice of final results of this administrative
review, including the results of its analysis of issues raised in any
such written comments, within 120 days of publication of these
preliminary results.
Assessment and Cash Deposit Rates
The Department shall determine, and the Customs Service shall
assess, antidumping duties on all appropriate entries. The Department
will issue appraisement instructions directly to the Customs Service.
In order to assess duties on appropriate entries as a result of
this review, we have calculated entry-specific duty assessment rates
based on the ratio of the amount of duty calculated for each of
CMIECHN/CNIECHN's verified sales during the POR to the total entered
value of the corresponding entry. The Department will instruct the
Customs Service to assess these rates on those entries which correspond
to sales verified by the Department as having been made directly by
CMIECHN/CNIECHN. With respect to SCL and LSM, third country resellers
which established the identity of their suppliers, the Department will
instruct Customs to liquidate these entries at the cash deposit rate in
effect for their supplier(s) at the time of entry.
As discussed in the Export Price section above, however, the
Customs entry data for the POR indicates that many more shipments of
manganese metal listing CMIECHN/CNIECHN as the manufacturer/exporter
were entered into the United States than the number of POR sales
reported by CMIECHN/CNIECHN. On those entries listing CMIECHN/CNIECHN
as the direct exporter but for which there are no corresponding
verified sales, the Department will instruct the Customs Service to
assess the PRC-wide rate of 143.32 percent. This is consistent with the
Department's practice as applied during the last review. See Manganese
Metal from the People's Republic of China; Final Results of Antidumping
Duty Administrative Review, 64 FR 49449 (September 13, 1999). The
Department will likewise instruct the Customs Service to assess the
PRC-wide rate on all POR entries from HIED and on all other PRC
exporters that do not have separate rates.
Furthermore, 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)(1) of the Act: (1) for CMIECHN/
CNIECHN, the cash deposit rate will be the rates established in the
final results of this review for this firm; (2) for Minmetals and
CEIEC, which we determined to be entitled to a separate rate in the
LTFV Investigation but which did not have shipments or entries to the
United States during the POR, the rates will continue to be 5.88
percent and 11.77 percent, respectively (these are the rates which
currently apply to these companies); (3) for sales made by LSM and SCL,
the cash deposit rates will be those cash deposit rates in effect at
the time of entry for their respective PRC supplier(s); 2
(4) for other non-PRC
[[Page 69003]]
exporters of subject merchandise from the PRC, the cash deposit rate
will be the rate applicable to the PRC supplier of that exporter; and
(5) for all other PRC exporters, including HIED, the cash deposit rate
will be 143.32 percent. These deposit requirements, when imposed, shall
remain in effect until publication of the final results of the next
administrative review.
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\2\ See e.g., Manganese Metal from the People's Republic of
China; Final Results of Antidumping Duty Administrative Review, 64
FR 49447 (September 13, 1999); Fresh Garlic from the PRC; Final
Results of Antidumping Duty Administrative Review and Partial
Termination of Administrative Review, 62 FR 23758, 23760; Sparklers
from the PRC; Final Results of Antidumping Duty Administrative
Review, 61 FR 39630, 39631.
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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 this determination in accordance with
sections 751(a)(1) and 777(i)(1) of the Act.
Dated: December 2, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-31984 Filed 12-8-99; 8:45 am]
BILLING CODE 3510-DS-P
