[Federal Register: May 20, 2003 (Volume 68, Number 97)]
[Notices]
[Page 27530-27533]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my03-44]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-878]
Notice of Final Determination of Sales at Less Than Fair Value:
Saccharin From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: May 20, 2003.
FOR FURTHER INFORMATION CONTACT: Mark Hoadley (Suzhou Fine Chemicals
Group Co., Ltd.) at (202) 482-3148, Javier Barrientos or Jessica
Burdick (Shanghai Fortune Chemical Co., Ltd.) at (202) 482-2243 or
(202) 482-0666, or Sally C. Gannon at (202) 482-0162; Office of AD/CVD
Enforcement VII, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington DC 20230.
SUPPLEMENTARY INFORMATION:
Final Determination
We determine that saccharin 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). The estimated margins of sales at LTFV are
shown in the ``Suspension of Liquidation'' section of this notice.
Background
The preliminary determination in this investigation was published
on December 27, 2002. See Notice of Preliminary Determination of Sales
at Less Than Fair Value: Saccharin From the People's Republic of China,
67 FR 79049 (December 27, 2002) (Preliminary Determination). Since the
issuance of the preliminary determination, the following events have
occurred.
On January 8, 2003, petitioner, PMC Specialities Group Inc.,
requested a hearing. On January 8, 2003, the Department received a
timely factor value submission from Shanghai Fortune Chemical Co.
(Shanghai Fortune) and Suzhou Fine Chemicals Group Co., Ltd. (Suzhou)
(collectively, ``respondents'') and Kaifeng Xinghua Fine Chemical
Factory (Kaifeng). On February 11, 2003, the Department extended the
due date for the final determination of this investigation (68 FR
6885). On February 21, 2003, the Department received timely factor
value submissions from petitioner, respondents and Kaifeng, and Procter
& Gamble Co. On March 3, 2003, the Department received a supplemental
factor value submission from petitioner. On April 10, 2003, the
Department received timely written case briefs from petitioner,
respondents, Procter & Gamble Co., and Colgate Palmolive Co. On April
15, 2003, the Department received timely rebuttal comments from
petitioner and respondents. On April 22, 2003, a public hearing was
held in this proceeding. We have now completed this investigation in
accordance with section 735 of the Act.
Scope of the Investigation
The product covered by this investigation is saccharin. Saccharin
is defined as a non-nutritive sweetener used in beverages and foods,
personal care products such as toothpaste, table top sweeteners, and
animal feeds. It is also used in metalworking fluids. There are four
primary chemical compositions of saccharin: (1) sodium saccharin
(American Chemical Society Chemical Abstract Service (CAS) Registry
128-44-9); (2) calcium saccharin (CAS Registry 6485-
34-3); (3) acid (or insoluble) saccharin (CAS Registry 81-07-
2); and (4) research grade saccharin. Most of the U.S.-produced and
imported grades of saccharin from the PRC are sodium and calcium
saccharin, which are available in granular, powder, spray-dried powder,
and liquid forms.
The merchandise subject to this investigation is classifiable under
subheading 2925.11.00 of the Harmonized Tariff Schedule of the United
States (HTSUS) and includes all types of saccharin imported under this
HTSUS subheading, including research and specialized grades. Although
the HTSUS subheading is provided for convenience and Customs (as of
March 1, 2003, renamed the U.S. Bureau of Customs and Border
Protection) purposes, the Department's written description of the scope
of this investigation remains dispositive.
Period of Investigation
The period of investigation (POI) is January 1, 2002 through June
30, 2002. This period corresponds to the two most recent fiscal
quarters prior to the month of the filing of the Petition (i.e., July
2002), and is in accordance with our regulations. See 19 CFR
351.204(b)(1).
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this investigation are addressed in the Issues and Decision Memorandum
for the Final Determination of the Antidumping Duty Investigation of
Saccharin from the People's Republic of China, to Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration, from Barbara E.
Tillman, Acting Deputy Assistant Secretary for Import Administration,
dated May 12, 2003 (Decision Memorandum), which is hereby adopted by
this notice. A list of the issues which parties have raised and to
which we have responded, all of which are addressed in the Decision
Memorandum, is attached to this notice as an appendix. Parties can find
a complete discussion of all issues raised in this review and the
corresponding recommendations in this public memorandum which is on
file in the Central Records Unit, Room B-099 of the main Department
building. In addition, a complete version of the Decision Memorandum
can be accessed directly on the Web at http://ia.ita.doc.gov. The paper
copy and electronic version of the Decision Memorandum are identical in
content.
Non-Market Economy Country Status
The Department has treated the PRC as a non-market economy (NME)
country in all past antidumping
[[Page 27531]]
investigations. See, e.g., Notice of Final Determination of Sales at
Less Than Fair Value: Ferrovanadium from the People's Republic of
China, 67 FR 71137 (November 29, 2002); Notice of Final Determination
of Sales at Less Than Fair Value: Cold-Rolled Carbon Steel Flat
Products from the People's Republic of China, 67 FR 62107 (October 3,
2002). A designation as an NME remains in effect until it is revoked by
the Department (see section 771(18)(C) of the Act). The respondents in
this investigation have not requested a revocation of the PRC's NME
status. Therefore, we have continued to treat the PRC as an NME in this
investigation. For further details, see the Preliminary Determination.
Separate Rates
In the Preliminary Determination, the Department found that
respondents and Kaifeng met the criteria for the application of
separate, company-specific antidumping duty rates. We have not received
any other information since the Preliminary Determination which would
warrant reconsideration of our separates rates determination with
respect to respondents and Kaifeng. For a complete discussion of the
Department's determination that the respondents and Kaifeng are
eligible for a separate rate, see the Preliminary Determination.
The PRC-Wide Rate
In the Preliminary Determination, we found that the use of adverse
facts available for the PRC-wide rate was appropriate for other
exporters in the PRC based on our presumption that those companies who
failed to demonstrate that they met the requirements for a separate
rate constitute a single enterprise under common control by the Chinese
government. The PRC-wide rate applies to all entries of the merchandise
under investigation except for entries from the respondents and
Kaifeng.
When analyzing the petition for purposes of the initiation, the
Department reviewed all of the data upon which the petitioner relied in
calculating the estimated dumping margin and determined that the margin
in the petition was appropriately calculated and supported by adequate
evidence in accordance with the statutory requirements for initiation.
In order to corroborate the petition margin for purposes of using it as
adverse facts available, we examined the price and cost information
provided in the petition in the context of our preliminary
determination. For further details, see Preliminary Determination of
Saccharin from the People's Republic of China: Analysis and
Corroboration of Adverse Facts Available Rate, Memorandum from Mark
Hoadley, through Sally Gannon, to the File (December 18, 2002). We
received no comments concerning the Department's calculation of the
PRC-wide rate; therefore, the Department finds that, for the final
determination, the rate contained in the petition, recalculated as
described below, has probative value.
Since the Preliminary Determination, we have revised several of the
surrogate values based on Indian import data. In order to take into
account these values, we have recalculated the petition margin using,
where possible, the revised surrogate values. As a result of this
recalculation, the PRC-wide rate, for the final determination, is
329.33 percent. These revised surrogate values are based on updated
versions of the same source documentation used in the preliminary
determination. Therefore, additional corroboration analysis is not
necessary. See Final Determination of Saccharin from the People's
Republic of China: Analysis of Adverse Facts Available Rate, Memorandum
from Mark Hoadley to the File (May 12, 2003).
Margins for Cooperative Exporters Not Selected
The exporter who responded to Section A of the Department's
antidumping questionnaire but was not selected as a respondent in this
investigation, Kaifeng, has applied for a separate rate and provided
information for the Department to make this determination. Although it
is not practicable for the Department to calculate a separate rate for
Kaifeng in addition to Suzhou and Shanghai Fortune (see Respondent
Selection Memorandum, explaining the Department's decision to limit the
investigation to two exporters), the company did cooperate in providing
all information that the Department requested. We received no comments
concerning the preliminary margin applied to Kaifeng; therefore, for
the final determination, we have continued to apply to Kaifeng a
separate rate based on the weighted-average of the rates calculated for
those exporters that were selected to participate in this
investigation, excluding any rates that are zero, de minimis, or based
entirely on adverse facts available. See Notice of Final Determination
of Sales at Less Than Fair Value; Honey from the People's Republic of
China, 66 FR 50608, 50609 (October 4, 2001).
Surrogate Country
For purposes of the final determination, we continue to find that
India remains the appropriate surrogate country for the PRC. For
further discussion and analysis regarding the surrogate country
selection for the PRC, see the Preliminary Determination.
Verification
As provided in section 782(i) of the Act, we verified the
information submitted by respondents for use in our final
determination. We used standard verification procedures including
examination of relevant accounting and production records, and original
source documents provided by the respondents.
Date of Sale
In the Preliminary Determination, the Department determined that
invoice date was the most appropriate date of sale for respondents.
Normally, the Department presumes that invoice date is the date of
sale; however, ``[i]f the Department is presented with satisfactory
evidence that the material terms of sale are finally established on a
date other than the date of invoice, the Department will use that
alternative date as the date of sale.'' Antidumping Duties;
Countervailing Duties: Final Rule, 62 FR 27296, 27349 (May 19, 1997)
(Preamble). See also 19 CFR 351.401(i). After examining Shanghai
Fortune's sales documentation at verification, we determine that
because there were no material changes to the essential terms of sale
(quantity and price) between the purchase order date and the invoice
date, purchase order date is the most appropriate date of sale for
Shanghai Fortune. See Decision Memorandum and Memorandum to the File
from Javier Barrientos and Jessica Burdick, Case Analysts, through
Sally Gannon, Program Manager; Antidumping Duty Investigation of
Saccharin from the People's Republic of China (PRC) (A-570-878): PRC
Sales Verification Report for Shanghai Fortune Chemical Co., at 5-6
(March 26, 2003) (Shanghai Fortune Verification Report).
After examining Suzhou's sales documentation at verification, we
determine that, for the final determination, invoice date continues to
be the most appropriate date of sale for Suzhou. Suzhou reported
purchase order dates and invoice dates as dates of sale. For those
sales for which it reported invoice date, it did so because material
sales terms were not set until this date. Given that the Department
must choose one date of sale for all sales
[[Page 27532]]
in a particular market by a single respondent, we, therefore, are
choosing invoice date as the date of sale for Suzhou. This choice is
consistent with our regulatory presumption in favor of invoice date,
and with the fact that material sales terms sometimes are not set until
invoice date for this particular exporter.
Fair Value Comparisons
To determine whether sales of saccharin to the United States by
Suzhou and Shanghai Fortune were made at LTFV, we compared the export
price (EP), for Shanghai Fortune, and the constructed export price
(CEP), for Suzhou, to normal value (NV), as discussed in the Decision
Memorandum, Final Determination in the Antidumping Duty Investigation
of Saccharin from the People's Republic of China: Analysis of Suzhou
Fine Chemicals Group Co., Ltd., from Mark Hoadley, through Sally
Gannon, to the File (May 12, 2003) (Suzhou Analysis Memorandum), Final
Determination in the Antidumping Duty Investigation of Saccharin from
the People's Republic of China: Analysis of Shanghai Fortune Chemical
Co., Ltd., from Javier Barrientos, through Sally Gannon, to the File
(May 12, 2003) (Shanghai Fortune Analysis Memorandum), and Antidumping
Duty Investigation of Saccharin from the People's Republic of China:
Factor Valuation, Memorandum from Sebastian Wright, Case Analyst,
through Mark Hoadley, Senior Analyst, Office VII, to the File (May 12,
2003) (Factor Valuation Memorandum). In accordance with section
777A(d)(1)(A)(i) of the Act, for Shanghai Fortune, we calculated a
weighted-average margin based on EP. See also ``Use of Facts Otherwise
Available'' section of this notice. With regard to Suzhou, in
accordance with section 777A(d)(1)(A)(ii) of the Act, we calculated a
weighted-average margin based on CEP.
Use of Facts Otherwise Available
Section 776(a)(2) of the Act provides that, if an interested party
withholds information that has been requested by the Department, fails
to provide such information in a timely manner or in the form or manner
requested, significantly impedes a proceeding under the antidumping
statute, or provides information which cannot be verified, the
Department shall use, subject to sections 782(d) and (e) of the Act,
facts otherwise available in reaching the applicable determination.
Pursuant to section 782(e), the Department shall not decline to
consider such information if all of the following requirements are met:
(1) the information is submitted by the established deadline; (2) the
information can be verified; (3) the information is not so incomplete
that it cannot serve as a reliable basis for reaching the applicable
determination; (4) the interested party has demonstrated that it acted
to the best of its ability; and (5) the information can be used without
undue difficulties.
As discussed above, section 776(a)(2)(A) of the Act requires the
Department to use facts available when a party withholds information
which has been required by the Department. On September 10, 2002 and
again on November 4, 2002, the Department requested that Shanghai
Fortune report all sales of saccharin to the United States during the
POI. The Department requested that Shanghai Fortune provide this sales
information, whether the date of sale was based on purchase order/
contract date or invoice date. On October 25, 2002 and November 25,
2002, Shanghai Fortune submitted to the Department what it reported to
be all sales of saccharin sold to the United States during the POI,
based upon both purchase order/contract date, as well as invoice date.
After the preliminary determination, but prior to verification,
Shanghai Fortune had additional opportunities to provide the Department
with all sales information. At Shanghai Fortune's verification, the
Department discovered an unreported sale of saccharin to the United
States during the POI. Therefore, application of facts available is
appropriate pursuant to 776(a)(2)(A), because Shanghai Fortune withheld
information the Department requested, namely, one of its sales.
Once the Department determines that the use of facts available is
warranted, section 776(b) of the Act further permits the Department to
apply an adverse inference if it makes the additional finding that ``an
interested party has failed to cooperate by not acting to the best of
its ability to comply with a request for information.'' The Department
finds that Shanghai Fortune's failure to report this sale constitutes a
failure to cooperate to the best of its ability and that the use of
adverse facts available is appropriate under section 776(b) for the
following reasons. The Department requested on two occasions that
Shanghai Fortune report all of its sales during the POI (first, on the
basis of what Shanghai Fortune believed to be the date of sale, and,
second, on the basis of both purchase order/contract date and invoice
date). In filing its second supplemental, Shanghai Fortune certified
that it had reported all sales on both a purchase order/contract date
basis and an invoice date basis. Shanghai Fortune explained at
verification that it inadvertently failed to report this sale. See
Shanghai Fortune Verification Report at 10 and 16. For this reason, and
because it failed to report only this one sale, the Department finds
that the application of partial, rather than total, adverse facts
available for the missing POI sale is appropriate in this case. Section
776(b) of the Act states that adverse facts available may include
information derived from the petition, the final determination, a
previous administrative review, or other information placed on the
record. As adverse facts available, and in accordance with section
776(b), the Department is applying the highest rate from the petition
for an export price sale to the quantity of Shanghai Fortune's missing
sale for the final determination. See Shanghai Fortune Analysis
Memorandum. As discussed in ``The PRC-Wide Rate'' section of this
notice, the Department has adjusted the petition rate, and the petition
rate has been corroborated. Moreover, we determine that the highest
rate from the petition is relevant to Shanghai Fortune, given that it
represents a sale of a product also sold by Shanghai Fortune, made on
the same sales basis (export price) as Shanghai Fortune.
Changes Since the Preliminary Determination
Based on our findings at verification and on our analysis of the
comments received, we have made adjustments to the calculation
methodologies used in the preliminary determination. In particular, we
have made changes involving the following issues: surrogate valuation,
concentration strength of inputs, byproduct offset, normal value
financial ratios, Suzhou USA's indirect selling expenses, and date of
sale, as well as several miscellaneous calculation issues. These
changes are discussed in detail in the Decision Memorandum, Suzhou
Analysis Memorandum, and Shanghai Fortune Analysis Memorandum. In
addition to the Decision Memorandum, public versions of the Suzhou
Analysis Memorandum and Shanghai Fortune Analysis Memorandum are on
file in the Central Records Unit, Room B-099, of the main Commerce
Building.
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we are
directing the U.S. Bureau of Customs and Border Protection (BCBP) to
continue to suspend liquidation of all entries of
[[Page 27533]]
saccharin from the PRC that are entered, or withdrawn from warehouse,
for consumption, on or after December 27, 2003 (the date of publication
of the Preliminary Determination in the Federal Register). BCBP shall
continue to require a cash deposit or the posting of a bond equal to
the weighted-average amount by which the normal value exceeds the U.S.
price, as indicated in the chart below. The suspension of liquidation
instructions will remain in effect until further notice. The weighted-
average dumping margins are as follows:
------------------------------------------------------------------------
Manufacturer/Exporter Margin (percent)
------------------------------------------------------------------------
Suzhou Fine Chemical Group Co., Ltd................ 291.57%
Shanghai Fortune Chemical Co., Ltd................. 249.39%
Kaifeng Xinhua Fine Chemical Factory............... 281.97%
PRC-Wide........................................... 329.33%
------------------------------------------------------------------------
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (ITC) of our determination. The ITC will
determine, within 45 days, whether these imports are materially
injuring, or threatening material injury to, an industry in the United
States. 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 BCBP officials to assess antidumping
duties on all imports on 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 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 notification of return/
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 is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act.
Dated: May 12, 2003.
Jeffrey May,
Acting Assistant Secretary for Import Administration.
Appendix
Issues in Decision Memorandum
Comment 1: Surrogate Values: Most Appropriate Source for Surrogate
Values
Comment 2: Surrogate Values: Adjustments to Surrogate Values for
Concentration Strengths
Comment 3: Surrogate Values: Choice of Surrogate Values for Byproducts
Comment 4: Application of ``Sigma'' Rule
Comment 5: Market Economy Inputs: Valuation of Phthalic Anhydride
Comment 6: Byproduct Offset
Comment 7: Packing Expenses
Comment 8: Suzhou's Self-Produced Inputs
Comment 9: Normal Value Financial Ratios
Comment 10: Suzhou USA's Indirect Selling Expenses
Comment 11: Calculation of Suzhou USA's CEP Profit
Comment 12: Date of Sale
Comment 13: Calculation Issue: Freight
Comment 14: Calculation Issue: Conversion Error/Ice, Water, and Steam
Comment 15: Calculation Issue: Conversion Error/Labor
Comment 16: Calculation Issue: Discrepancy Between Prelim Factor Values
Memo and Calculations
[FR Doc. 03-12636 Filed 5-19-03; 8:45 am]
BILLING CODE 3510-DS-S