02-13844. Silicon Metal from the People's Republic of China: Rescission of Antidumping Duty New Shipper Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On June 28, 2001, we initiated a new shipper review of Groupstars Chemical Company, Ltd. (Groupstars China) because the company submitted a timely request for a new shipper review to the Department of Commerce, which appeared to meet all of the requirements set forth in 19 CFR 351.214(b)(2). See 66 FR 41508. We have now determined that information contained in Groupstars China's request for a new shipper review was either inaccurate or incomplete. Accordingly, the Department is rescinding this new shipper review.

EFFECTIVE DATE:

June 3, 2002.

FOR FURTHER INFORMATION CONTACT:

Jacqueline Arrowsmith, AD/CVD Enforcement Group III, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington DC 20230; telephone [phone].

Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are references to the provisions of the Tariff Act of 1930, as amended (the Act). In addition, unless otherwise indicated, all citations to the Department's regulations are to the provisions codified at 19 CFR part 351 (2001).

Background

On July 31, 2001, the Department initiated a new shipper review of Groupstars China. See 66 FR 41508 (August 8, 2001). On August 6, 2001, we received comments from Globe Metallurgical, Inc. and Elkem Metals Company (collectively, petitioners), requesting that we not initiate, or rescind, the review. We issued a questionnaire to Groupstars China on October 5, 2001 and we received responses from Groupstars China on November 2, 2001 and November 14, 2001. On November 20, 2001, we rejected these responses for being improperly filed because Groupstars China failed to properly identify business proprietary and public data. See Letter from Barbara E. Tillman, Director, Office 7, to Spring, Spring & Associates, dated November 20, 2001. Groupstars China resubmitted its responses on November 27, 2001, and on December 4, 2001, we again rejected these responses for being improperly filed for the same reason. See Letter from Barbara E. Tillman, Director, Office 7, to Spring, Spring & Associates, dated December 4, 2001. On December 7, 2001, we received and accepted revised responses, dated December 6, 2001.

On January 2, 2002, we published the Notice of Extension of Time Limit for Preliminary Results of Antidumping New Shipper Review: Silicon Metal From the People's Republic of China. See 67 FR 5901 (January 2, 2002).

On January 18, 2002 and January 23, 2002, we received submissions from petitioners providing new factual information and deficiency comments. On January 28, 2002, we rejected petitioners' submissions for not adhering to the Department's filing requirements; petitioners failed to provide a translation of one of their exhibits. See Letter from Barbara E. Tillman, Director, Office 7, to petitioners. Petitioners' submissions were refiled and accepted on January 30, 2002 and February 6, 2002, respectively.

Based on our analysis of the record, including data submitted by petitioners and Groupstars China, we determined that there was factual information submitted by petitioners that contradicted information submitted by Groupstars China in its request for a new shipper review and its questionnaire responses. On February 13, 2002, we issued a letter to Groupstars China giving the company the opportunity to counter the information and documentation filed by the petitioners on each of three critical points: (1) Whether the initial and all subsequent shipments of silicon metal were reported; (2) whether Groupstars China was a legal entity before the date of sale of its first shipment of silicon metal; and (3) whether Groupstars China produced the merchandise that is the basis of this new shipper review. See Letter from Barbara E. Tillman, Director, Office 7, to Groupstars China, dated February 13, 2002. We stated that unless Groupstars China demonstrated that the requirements for a new shipper review had been met, we would have no choice but to rescind its new shipper review.

On February 19, 2002, we received Groupstars China's response to our February 13, 2002 letter. On March 12, 2002, we received a letter from petitioners reiterating their view that the new shipper review should be rescinded. On April 1, 2002, Groupstars China filed a letter arguing that it deserved a new shipper review.

Rescission of Review

Based on the Department's analysis of Groupstars China's response to the Department's February 13th letter, as well as the other submissions made by Groupstars China and petitioners, we find that Groupstars China did not meet the requirements set forth in section 351.214(b)(2) of the regulations for requesting a new shipper review. On May 9, 2002, the Department issued a memorandum which set forth the Department's analysis and which recommended rescission of this new shipper review. (See “Rescission of New Shipper Review for Groupstars Chemical Company (Groupstars China): Silicon Metal from the People's Republic of China” from Barbara E. Tillman, Director, Office 7, to Joseph A. Spetrini, Deputy Assistant Secretary, dated May 9, 2002 (Silicon Metal Rescission Analysis Memo), a public document which is on file in the Central Records Unit, Room B-099 of the Department of Commerce.) On May 9, 2002, we sent out the Silicon Metal Rescission Analysis Memo to the interested parties (See “Memorandum to The File through Barbara E. Tillman, Director, Office 7, from Jacqueline Arrowsmith,” also dated May 9, 2002) and asked that any new comments be properly filed and served on interested parties no later than Tuesday, May 14, 2002. On May 14, 2002, we received comments from petitioners stating that they agree with our decision to rescind this review. See “Memorandum To Barbara E. Tillman, Director, Office VII from Jacqueline Arrowsmith,” dated May 16, 2002.

As discussed in detail in the Silicon Metal Rescission Analysis Memo, we find that Groupstars China provided inaccurate information with respect to two of the required criteria for requesting a new shipper review. First, as set forth in section 351.214(b)(iv)(B) of the regulations, new shipper requests are required to include documentation for the first and all subsequent shipments of the silicon metal. Groupstars China's request for a new shipper review only provided information and documentation with respect to one shipment. Petitioner provided documentation showing another shipment during the period of review (POR). A query of proprietary U.S. Customs data that the Department obtained as part of this proceeding confirmed this shipment. Even though this shipment was shipped and entered during the POR (June 1, 2000 through May 31, 2001), Groupstars China did not provide information or documentation on this shipment in its original new shipper request as required by the regulations, nor did Groupstars China provide this information in its response to our questionnaire. Based on the information on the record, the unreported shipment was one of only two shipments made during the POR, and was by far the largest during the POR. See Silicon Metal Rescission Analysis Memo. Further, it was Groupstars China's responsibility to report this shipment. This failure to report this shipment in its request for a new shipper review was compounded by Groupstars China's decision not to report this sale in its questionnaire response.

Second, as set forth in section 351.214(b)(2)(iii)(A) of the Department's regulations, a new shipper request must contain certifications by either the producer/exporter of the subject merchandise or the producer and the exporter of the subject merchandise. Although Groupstars China stated in its new shipper request that it was both the exporter and the producer of the subject merchandise, the record is now clear that Dayinjiang Silicon Metal Plant was the producer of this subject merchandise and that Groupstars China was only the exporter. See Silicon Metal Rescission Analysis Memo and Groupstars China's February 19, 2002 submission. Given that Groupstars China was the exporter and that Dayinjiang Silicon Metal Plant was the producer of the subject merchandise, Groupstars China's request for a new shipper review should have contained a certification from Dayinjiang Silicon Metal Plant indicating whether it was affiliated with any producer or exporter that shipped subject merchandise during the period of investigation, among other things. Therefore, Groupstars China did not provide the required certification from the producer of the silicon metal required under section 351.214(b)(2)(iii)(A) of the Department's regulations.

With respect to an additional issue of concern, whether Groupstars China was, in fact, a legal entity before the date of its first shipment of silicon metal, we have not made a conclusive finding. In our May 9, 2002 Silicon Metal Rescission Analysis Memo, we stated that after reviewing all the information on the record, we could not determine whether Groupstars China had the necessary documentation (e.g. business license and certificate of approval) demonstrating the date on which it became a legal entity. Thus, because Groupstars did not provide any documentation or other information which conclusively demonstrated the date on which it became a legal business entity, we cannot make a conclusion on this issue and cannot determine whether it was a legal entity prior to its first shipment.

Hence, because Groupstars China did not report or submit documentation on its subsequent shipments in accordance with section 351.214(b)(2)(iv)(B) and failed to provide the required certification from the producer of silicon metal as required under section 351.214(b)(2)(iii)(A), we find that Groupstars China did not meet the requirements set forth in section 351.214(b) of the regulations for requesting a new shipper review. Thus, the Department is rescinding this new shipper review.

Administrative Protective Order Procedures

This notice serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or 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 sanctionable violation.

This determination and notice are issued and published in accordance with 19 CFR 351.213(d)(4) and sections 751(a)(1), 751(a)(2)(B) and 777(i)(1) of the Act.

Dated: May 28, 2002.

Bernard T. Carreau,

Acting Assistant Secretary for Import Administration.