2011-5687. Persulfates From the People's Republic of China: Preliminary Results of the 2009-2010 Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

In response to a request from an interested party, the Department of Commerce (“the Department”) is conducting an administrative review of the antidumping duty order on persulfates from the People's Republic of China (“PRC”) covering the period July 1, 2009, through June 30, 2010. This administrative review covers one producer/exporter of the subject merchandise, i.e., United Initiators (Shanghai) Co., Ltd. (“United Initiators”).

We preliminarily determine that United Initiators does not qualify for a separate rate because it did not respond to the Department's request for information; thus, as adverse facts available, we are assigning to United Initiators, as part of the PRC-wide entity, the PRC-wide rate. If these preliminary results are adopted in our final results of this review, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on all appropriate entries of subject merchandise exported by United Initiators during the period of review (“POR”). We invite interested parties to comment on these preliminary results.

DATES:

Effective Date: March 11, 2011.

FOR FURTHER INFORMATION CONTACT:

Brandon Petelin or Charles Riggle, AD/CVD Operations, Office 8, 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 July 7, 1997, the Department published in the Federal Register the antidumping duty order on persulfates from the PRC.^[1] On July 1, 2010, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on persulfates from the PRC.^[2] In accordance with 19 CFR 351.213(b)(1), on July 30, 2010, FMC Corporation, a domestic producer of persulfates, requested that the Department conduct an administrative review of United Initiators' exports to the United States for the POR July 1, 2009, through June 30, 2010. Pursuant to this request, the Department published a notice of initiation of the administrative review of the antidumping duty order on persulfates from the PRC.^[3]

On October 5, 2010, the Department issued an antidumping duty questionnaire to United Initiators. On October 8, 2010, we confirmed that United Initiators signed for and received our mailing of the antidumping duty questionnaire. United Initiators did not respond to the Department's antidumping duty questionnaire. On January 3, 2011, the Department placed on the record of this administrative review the UPS International Air Waybill receipt and delivery confirmation for the questionnaire issued to United Initiators to confirm that we mailed, and United Initiators received and signed for, the questionnaire.

Scope of the Order

The products covered by this review are persulfates, including ammonium, potassium, and sodium persulfates. The chemical formula for these persulfates are, respectively, (NH₄)₂ S₂ O₈, K₂ S₂ O₈, and Na₂ S₂ O₈. Potassium persulfates are currently classifiable under subheading 2833.40.10 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Sodium persulfates are classifiable under HTSUS subheading 2833.40.20. Ammonium and other persulfates are classifiable under HTSUS subheadings 2833.40.50 and 2833.40.60. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this review is dispositive.

Non-Market Economy Country Status

In every case conducted by the Department involving the PRC, the PRC has been treated as a non-market economy (“NME”) country.^[4] In accordance with section 771(18)(C)(i) of the Tariff Act of 1930, as amended (“Act”), any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. Because no interested party in this case has contested such treatment, the Department continues to treat the PRC as an NME country.

PRC-Wide Rate and Use of Facts Available

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 deposit rate. It is the Department's policy to assign all exporters of subject merchandise, subject to review in an 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.^[5] We have determined that United Initiators does not qualify for a separate rate and is instead subject to the PRC-wide rate.

In relevant part, section 776(a) of the Act provides that the Department shall apply “facts otherwise available” if “(1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested,” or “(B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act.” Further, section 776(b) of the Act provides that the Department may make an adverse inference in applying the facts otherwise available when a party “has failed to cooperate by not acting to the best of its ability to comply with a request for information.” Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” ^[6] Finally, according to section 776(b) of the Act and 19 CFR 351.308(c)(1), such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record.

Because United Initiators did not respond to the Department's questionnaire, it has not demonstrated its eligibility for a separate rate. United Initiators has not rebutted the Department's presumption of government control and is, therefore, presumed to be part of the PRC-wide entity. Further, in accordance with sections 776(a)(2)(A) and (B) of the Act, because the PRC-wide entity (including United Initiators) failed to cooperate to the best of its ability by not responding to our questionnaire, we find it appropriate to use adverse facts available. As a result, in accordance with the Department's practice,^[7] we have preliminarily assigned to the PRC-wide entity (including United Initiators) a rate of 119.02 percent, the highest rate determined in the current, or any previous, segment of this proceeding.

Corroboration of Secondary Information

Section 776(c) of the Act provides that, when the Department relies on secondary information rather than information obtained in the course of a review, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. According to the SAA, secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning subject merchandise, or any previous review under section 751 concerning the subject merchandise.” ^[8] To “corroborate” means that the Department will satisfy itself that the secondary information has probative value. The Department will, to the extent practicable, examine the reliability and relevance of the secondary information used.^[9] Further, independent sources used to corroborate information may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation.

In the instant review, we are applying to the PRC-wide entity (which includes United Initiators) the PRC-wide rate that was corroborated in the underlying investigation of sales at less than fair value (“LTFV”).^[10] No evidence has been presented in the current review that calls into question the reliability of this information.^[11] Thus, the Department finds that the rate information is reliable.

Additionally, regarding relevance, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate, the Department will disregard the margin and establish an appropriate margin. Similarly, the Department does not apply a margin that has been discredited.^[12] No unusual circumstances are present here. Since the LTFV investigation, no new information has indicated that this rate is invalid or uncharacteristic of the persulfates industry. Further, this rate has been used as the PRC-wide rate in other segments of this proceeding.^[13] Therefore, we find that this rate has probative value.

As the PRC-wide entity rate from the LTFV investigation is both reliable and relevant, we preliminarily determine that using this rate, the highest rate from any segment of this administrative proceeding (i.e., the rate of 119.02 percent), is in accord with section 776(c) of the Act, which requires that secondary information be corroborated. Thus, the Department finds that the LTFV investigation rate is corroborated for the purposes of this administrative review and may reasonably be applied to the PRC-wide entity based on the failure of the PRC-wide entity, which includes United Initiators, to cooperate to the best of its ability.

Preliminary Results of the Review

We preliminarily find that the following weighted-average dumping margin exists for the July 1, 2009, through June 30, 2010, POR:

Manufacturer/exporter	Margin (percent)
PRC-Wide Entity*	119.02
* The PRC-wide entity includes United Initiators.

Public Comment

Interested parties are invited to comment on the preliminary results and may submit case briefs and/or written comments within ten days of the date of publication of this notice. See 19 CFR 351.309(c). Rebuttal briefs and rebuttals to written comments, limited to issues raised in such briefs or comments, may be filed no later than five days after the time limit for filing the case briefs. See 19 CFR 351.309(d). The Department requests that parties submitting written comments provide an executive summary and a table of authorities as well as an additional copy of those comments electronically.

Any interested party may request a hearing within ten days of publication of this notice. See 19 CFR 351.310(c). Hearing requests should contain the following information: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs. If a request for a hearing is made, parties will be notified of the time and date for the hearing to be held at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230. See 19 CFR 351.310(d).

The Department will issue the final results of this administrative review, which will include its analysis of any written comments, no later than 120 days after the publication date of these preliminary results. See section 751(a)(3)(A) of the Act and 19 CFR 351.213(h).

Assessment Rates

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. If these preliminary results are adopted in our final results, the Department shall determine, and CBP shall assess, antidumping duties on all appropriate entries.

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 the PRC-wide entity (which includes United Initiators), the cash deposit rate will be the PRC-wide rate established in the final results of review; (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 that have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate; 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 further notice.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) 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.

These preliminary results of review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(4).

Dated: March 7, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  See Notice of Antidumping Duty Order and Amended Final Determination of Sales at Less Than Fair Value: Persulfates from the People's Republic of China, 62 FR 36259 (July 7, 1997) (“Persulfates Order and Amended Final”), amended by Notice of Amended Antidumping Duty Order: Persulfates From the People's Republic of China, 62 FR 39212 (July 22, 1997) (“Persulfates Amended Order”).

2.  See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 75 FR 38074 (July 1, 2010).

3.  See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 75 FR 60076 (September 29, 2010) (“September 29 Initiation Notice”). In the initiation notice that published on August 31, 2010, the Department incorrectly initiated an administrative review of the company FMC Corporation, the domestic producer of persulfates, for the instant administrative review of persulfates from the PRC. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Deferral of Initiation of Administrative Review, 75 FR 53274 (August 31, 2010). However, in the initiation notice that published on September 29, 2010, the Department retracted its initiation of an administrative review of FMC Corporation. See September 29 Initiation Notice, 75 FR at 60081-82, n.9.

4.  See, e.g., Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination: Coated Free Sheet Paper from the People's Republic of China, 72 FR 30758, 30760 (June 4, 2007), unchanged in Final Determination of Sales at Less Than Fair Value: Coated Free Sheet Paper from the People's Republic of China, 72 FR 60632 (October 25, 2007).

5.  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 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).

6.  See Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, Vol. 1, at 870 (1994).

7.  See, e. g., 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.

8.  See SAA at 870.

9.  See 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), unchanged in 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; Final Results of Antidumping Duty Administrative Reviews and Termination in Part, 62 FR 11825 (March 13, 1997).

10.  See Notice of Final Determination of Sales at Less Than Fair Value: Persulfates From the People's Republic of China, 62 FR 27222, 27224 (May 19, 1997), amended by Persulfates Order and Amended Final, 62 FR at 36260 (identifying 119.02 percent as the PRC-wide rate); see also Persulfates Amended Order, 62 FR at 39212 (confirming that 119.02 percent is the PRC-wide rate).

11.  See, e.g., Certain Preserved Mushrooms From the People's Republic of China: Final Results and Partial Rescission of the New Shipper Review and Final Results and Partial Rescission of the Third Antidumping Duty Administrative Review, 68 FR 41304, 41308 (July 11, 2003) (where the Department relied on the corroboration memorandum from the LTFV investigation to assess the reliability of the petition rate as the basis for an adverse facts available rate in the administrative review).

12.  See D&L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (ruling that the Department cannot use a margin that has been judicially invalidated).

13.  See, e.g., Persulfates from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 68 FR 6712 (February 10, 2003).