E8-15488. Notice of Final Determination of Sales at Less Than Fair Value: Sodium Nitrite from the People's Republic of China

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

July 8, 2008.

SUMMARY:

The Department of Commerce (Department) determines that sodium nitrite from the People's Republic of China (PRC) is being, or is likely to be, sold in the United States at less than fair value (LTFV) as provided in section 735 of the Tariff Act of 1930, as amended (the Act). We made no changes to the preliminary dumping margin in this investigation. The final dumping margin for this investigation is listed in the “Final Determination Margin” section below. The period covered by this investigation is April 1, 2007, through September 30, 2007.

FOR FURTHER INFORMATION CONTACT:

Magd Zalok or Rebecca Pandolph, AD/CVD Operations, Office 4 Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] and [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On April 23, 2008, the Department published in the Federal Register the notice of its preliminary determination of sales at LTFV in the antidumping duty investigation of sodium nitrite from the PRC. See Notice of Preliminary Determination of Sales at Less Than Fair Value: Sodium Nitrite from the People's Republic of China, 73 FR 21906 (April 23, 2008) (Preliminary Determination).

With respect to the Department's invitation to comment on the Preliminary Determination, on May 23, 2008, General Chemical LLC (the petitioner) submitted a case brief. No other party submitted case or rebuttal briefs in this proceeding.

Scope of the Investigation

The merchandise covered by this investigation is sodium nitrite in any form, at any purity level. In addition, the sodium nitrite covered by this investigation may or may not contain an anti-caking agent. Examples of names commonly used to reference sodium nitrite are nitrous acid, sodium salt, anti-rust, diazotizing salts, erinitrit, and filmerine. The chemical composition of sodium nitrite is NaNO2 and it is generally classified under subheading 2834.10.1000 of the Harmonized Tariff Schedule of the United States (HTSUS). The American Chemical Society Chemical Abstract Service (CAS) has assigned the name “sodium nitrite” to sodium nitrite. The CAS registry number is 7632-00-0.

While the HTSUS subheading, CAS registry number, and CAS name are provided for convenience and customs purposes, the written description of the scope of this investigation is dispositive.

Analysis of Comments Received

In its May 23, 2008, case brief, the petitioner argues that the Department should base its final determination, like the Preliminary Determination, on adverse facts available (AFA) because the two mandatory respondents, Qingdao Hengyuan Chemical Co., Ltd. (Qingdao) and Hualong Ammonium Nitrate Company Ltd. (Hualong), did not submit responses to the Department's questionnaire. In addition, the petitioner explains that it does not object to the preliminary AFA rate used by the Department (which is the highest margin alleged in the petition, as adjusted by the Department at initiation) because it believes the rate is consistent with both the dumping margins alleged in the petition and the dumping margins used for purposes of initiating the investigation. The petitioner notes that the Department's practice is to base an AFA rate on the highest margin in a proceeding and here the highest margin is the most probative evidence of current margins because, if it were not, evidence showing the margins to be less would have been provided.^[1] See the May 23, 2008, submission, Sodium Nitrite from China: Case Brief of General Chemical LLC.

The petitioner also notes that no party filed separate rate information in this investigation. Given the PRC's status as a non-market economy (NME) country, and the lack of information on the record rebutting the Department's presumption that all companies in the PRC are subject to government control, the petitioner argues that the rate applied to the PRC-wide entity cannot be lower than the rate applied to Qingdao and Hualong. See the May 23, 2008, submission, Sodium Nitrite from China: Case Brief of General Chemical LLC.

We agree that the dumping margin in this case should be based on total AFA because the two mandatory respondents, Qingdao and Hualong, failed to respond to the Department's questionnaire. Moreover, by not responding to the Department's questionnaire, Qingdao and Hualong failed to establish their entitlement to separate rates, and thus they are part of the PRC-wide entity. Therefore, the AFA rate will be applied to the PRC-wide entity. See “The PRC-Wide Rate” section of this notice below for a full discussion of this topic.

No Changes Since the Preliminary Determination

Based on our analysis of the comments received, the Department has made no changes to its Preliminary Determination.

Separate Rates

No party filed separate rates information in this investigation. Therefore, as was the case in the Preliminary Determination, we have considered all PRC exporters of subject merchandise to be part of the PRC-wide entity.

The PRC-Wide Rate

Section 776(a)(2) of the Act provides that if an interested party withholds information requested by the Department, fails to provide information by the deadline or in the form or manner requested, or significantly impedes a proceeding, the Department shall use, subject to section 782(d) of the Act, facts otherwise available in reaching the applicable determination. Furthermore, in selecting from among the facts otherwise available, section 776(b) of the Act permits the Department to use inferences that are adverse to a party if it finds that the party failed to cooperate by not acting to the best of its ability to comply with a request for information. Because, as noted above, Qingdao and Hualong are part of the PRC-wide entity, and they withheld information that is required by the Department to calculate dumping margins, the Department continues to conclude that it is appropriate to base the PRC-wide entity's dumping margin on facts available, pursuant to section 776(a) of the Act.^[2]

Moreover, because Qingdao and Hualong did not respond to our request for information, we continue to find that the PRC-wide entity failed to cooperate to the best of its ability to comply with a request for information. Therefore, in selecting from among the facts otherwise available, an adverse inference is warranted. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Circular Seamless Stainless Steel Hollow Products From Japan, 65 FR 42985, 42986 (July 12, 2000) (applying total adverse facts available because the respondent failed to respond to the antidumping questionnaire). For the reasons noted in the Preliminary Determination, we continue to find that the highest dumping margin from the petition, 190.74 percent, as revised by the Department, is the appropriate AFA rate in this case. See Preliminary Determination, 73 FR at 21907-21908. As explained in the Preliminary Determination, we corroborated this rate pursuant to section 776(c) of the Act. See Preliminary Determination, 73 FR at 21908.

Since we begin with the presumption that all companies within an NME country are subject to government control, and no company submitted information to rebut that presumption, we are applying a single antidumping duty rate, the PRC-wide rate, to all exporters of subject merchandise from the PRC. See, e.g., Synthetic Indigo from the People's Republic of China; Notice of Final Determination of Sales at Less Than Fair Value, 65 FR 25706, 25707 (May 3, 2000) (applying the PRC-wide rate to all exporters of subject merchandise in the PRC based on the presumption that the export activities of the companies that failed to respond to the Department's questionnaire were controlled by the PRC government). Thus, the PRC-wide rate will apply to all entries of subject merchandise.

Final Determination Margin

We determine that the following weighted-average dumping margin exists for the period April 1, 2007, through September 30, 2007:

Manufacturer/exporter	Margin (percent)
PRC-Wide Rate	190.74

Continuation of Suspension of Liquidation

In accordance with section 735(c)(1)(B)(ii) of the Act, we are directing U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all imports of subject merchandise that is entered or withdrawn from warehouse, for consumption on or after April 23, 2008, the date of publication of the Preliminary Determination in the Federal Register. We will instruct CBP to continue to require a cash deposit or the posting of a bond for all companies based on the estimated weighted-average dumping margin shown above. The suspension of liquidation instructions will remain in effect until further notice.

International Trade Commission Notification

In accordance with section 735(d) of the Act, we have notified the International Trade Commission (ITC) of our final determination of sales at LTFV. As our final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will determine whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise within 45 days of this final determination. If the ITC determines that material injury or threat of material injury does not exist, the proceeding will be terminated and all securities posted will be refunded or canceled. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.

Notification Regarding APO

This notice also serves as a reminder to the 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. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

This determination and notice are issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.

Dated: June 30, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Footnotes

1.  See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990).

2.  Section 782(d) of the Act is not applicable here because Qingdao and Hualong failed to provide any response to the Department's request for information.