[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Notices]
[Pages 30377-30380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13071]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-962]


Certain Potassium Phosphate Salts from the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value and 
Termination of Critical Circumstances Inquiry

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

EFFECTIVE DATE: June 1, 2010.
SUMMARY: On March 16, 2010, the Department of Commerce (the 
``Department'') published its notice of preliminary determination of 
sales at less than fair value (``LTFV'') in the antidumping 
investigation of certain potassium phosphate salts (``salts'') from the 
People's Republic of China (``PRC'').\1\ The period of investigation 
(``POI'') is January 1, 2009, through June 30, 2009. We invited 
interested parties to comment on our preliminary determination of sales 
at LTFV. We made no changes for the final determination. We determine 
that salts from the PRC are being, or are likely to be, sold in the 
United States at 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 ``Final Determination Margins'' section of this 
notice.
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    \1\ See Certain Potassium Phosphate Salts from the People's 
Republic of China: Preliminary Determination of Sales at Less Than 
Fair Value, 75 FR 12508 (March 16, 2010) (``Preliminary 
Determination'').

FOR FURTHER INFORMATION CONTACT: Katie Marksberry or Irene Gorelik, AD/
CVD Operations, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482-7906 
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or (202) 482-6905, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    The Department published its Preliminary Determination on March 16, 
2010. On April 2, 2010, Petitioners filed an allegation of critical 
circumstances.\2\ On April 15, 2010, we received a case brief from 
Petitioners. We did not receive any case or rebuttal briefs from any 
other interested parties. On May 5, 2010, we published the preliminary 
affirmative determination of critical circumstances.\3\ On May 18, 
2010, Petitioners withdrew their allegation of critical 
circumstances.\4\
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    \2\ See Letter from Petitioners to the Department; regarding 
Certain Potassium Phosphate Salts from the People's Republic of 
China: Allegation of Critical Circumstances; dated April 2, 2010.
    \3\ See Certain Potassium Phosphate Salts from the People's 
Republic of China: Preliminary Affirmative Determination of Critical 
Circumstances in the Antidumping Duty Investigation, 75 FR 24572 
(May 5, 2010) (``Prelim Critical Circumstances Determination'').
    \4\ See letter to the Department from Petitioners, regarding 
Certain Potassium Phosphate Salts from the People's Republic of 
China: Withdrawal of Allegation of Critical Circumstances, dated May 
18, 2010.
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Tolling of Administrative Deadlines

    As explained in the memorandum from the Deputy Assistant Secretary 
for Import Administration, the Department has exercised its discretion 
to toll deadlines for the duration of the closure of the Federal 
Government from February 5, through February 12, 2010. Thus, all 
deadlines in this segment of the proceeding have been extended by seven 
days. The revised deadline for this final determination is now May 24, 
2010. See Memorandum to the Record from Ronald Lorentzen, DAS for 
Import Administration, regarding ``Tolling of Administrative Deadlines 
As a Result of the Government Closure During the Recent Snowstorm,'' 
dated February 12, 2010.

Scope of Investigation

    The phosphate salts covered by this investigation include anhydrous 
Monopotassium Phosphate (MKP), anhydrous Dipotassium Phosphate (DKP) 
and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in 
solution (collectively ``phosphate salts'').
    TKPP, also known as normal potassium pyrophosphate, Diphosphoric 
acid or Tetrapotassium salt, is a potassium salt with the formula 
K<INF>4</INF>P<INF>2</INF>O<INF>7</INF>. The CAS registry number for 
TKPP is 7320-34-5. TKPP is typically 18.7[percnt] phosphorus and 
47.3[percnt] potassium. It is generally greater than or equal to 
43.0[percnt] P<INF>2</INF>O<INF>5</INF> content. TKPP is classified 
under heading 2835.39.1000, HTSUS.
    MKP, also known as Potassium dihydrogen phosphate, KDP, or 
Monobasic potassium phosphate, is a potassium salt with the formula 
KH<INF>2</INF>PO<INF>4</INF>. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7[percnt] phosphorus, 28.7[percnt] potassium 
and 52[percnt] P<INF>2</INF>O<INF>5</INF>. MKP is classified under 
heading 2835.24.0000, HTSUS.
    DKP, also known as Dipotassium salt, Dipotassium hydrogen 
orthophosphate or Potassium phosphate, dibasic, has a chemical formula 
of K<INF>2</INF>HPO<INF>4</INF>. The CAS registry number for DKP is 
7758-11-4. DKP is typically 17.8[percnt] phosphorus, 44.8[percnt] 
potassium and 40[percnt] P<INF>2</INF>O<INF>5</INF> content. DKP is 
classified under heading 2835.24.0000, HTSUS.
    The products covered by this investigation include the foregoing 
phosphate salts in all grades, whether food grade or technical grade. 
The product covered by this investigation includes anhydrous MKP and 
DKP without regard to the physical form, whether crushed, granule, 
powder or fines. Also covered are all forms of TKPP, whether crushed, 
granule, powder, fines or solution.
    For purposes of the investigation, the narrative description is 
dispositive, and not the tariff heading, American Chemical Society, CAS 
registry number or CAS name, or the specific percentage chemical 
composition identified above.

Comments on the Preliminary Determination

    On April 15, 2010, Petitioners submitted a case brief in which they 
agreed with the decisions the Department made in the Preliminary 
Determination and stated that the Department's use of adverse facts 
available (``AFA'') in the Preliminary Determination was warranted and 
appropriate. No other interested party commented on the Preliminary 
Determination.

[[Page 30378]]

Separate Rates

    In proceedings involving non-market-economy (``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 merchandise subject to 
an investigation in an NME country this single rate unless an exporter 
can demonstrate that it is sufficiently independent so as to be 
entitled to a separate rate. See 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 by Notice of 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''), and Section 351.107(d) of the Department's regulations.
    In the Preliminary Determination, we found that Wenda Co., Ltd., 
Yunnan Newswift Company Ltd., Tianjin Chengyi International Trading 
Co., Ltd., and Snow-Apple Group Limited, demonstrated their eligibility 
for, and were hence assigned, separate rate status. No party has 
commented on the eligibility of these companies for separate rate 
status. Therefore, for the final determination, we continue to find 
that the evidence placed on the record of this investigation by these 
companies demonstrates both a de jure and de facto absence of 
government control with respect to their exports of the merchandise 
under investigation. Thus, we continue to find that they are eligible 
for separate rate status.

Use of Facts Available, Adverse Facts Available and The PRC-Wide Rate

    Section 776(a)(2) of the Act provides that if an interested party: 
(A) withholds information that has been requested by the Department; 
(B) fails to provide such information in a timely manner or in the form 
or manner requested, subject to subsections 782(c)(1) and (e) of the 
Act; (C) significantly impedes a determination under the antidumping 
statute; or (D) provides such information but the information cannot be 
verified, the Department shall, subject to subsection 782(d) of the 
Act, use facts otherwise available in reaching the applicable 
determination.
    Section 782(c)(1) of the Act provides that if an interested party 
``promptly after receiving a request from {the Department{time}  for 
information, notifies {the Department{time}  that such party is unable 
to submit the information in the requested form and manner, together 
with a full explanation and suggested alternative form in which such 
party is able to submit the information,'' the Department may modify 
the requirements to avoid imposing an unreasonable burden on that 
party.
    Section 782(d) of the Act provides that, if the Department 
determines that a response to a request for information does not comply 
with the request, the Department will inform the person submitting the 
response of the nature of the deficiency and shall, to the extent 
practicable, provide that person the opportunity to remedy or explain 
the deficiency. If that person submits further information that 
continues to be unsatisfactory, or this information is not submitted 
within the applicable time limits, the Department may, subject to 
section 782(e) of the Act, disregard all or part of the original and 
subsequent responses, as appropriate.
    Section 782(e) of the Act states that the Department shall not 
decline to consider information deemed ``deficient'' under section 
782(d) if: (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.
    Furthermore, section 776(b) of the Act states that if the 
administering authority finds that an interested party has not acted to 
the best of its ability to comply with a request for information, the 
administering authority may, in reaching its determination, use an 
inference that is adverse to that party. The adverse inference may be 
based upon: (1) the petition, (2) a final determination in the 
investigation under this title, (3) any previous review under section 
751 or determination under section 753, or (4) any other information 
placed on the record.
    In the Preliminary Determination, the Department found that SiChuan 
Blue Sword Import & Export Co., Ltd. (``SiChuan Blue Sword'') did not 
respond to our requests for information and was therefore part of the 
PRC-wide entity. Additionally, in the Preliminary Determination, the 
Department found that SD BNI(LYG) Co. Ltd. (``SD BNI''), who was 
selected as a mandatory respondent and failed to submit the information 
required, would not receive a separate rate and would remain part of 
the PRC-wide entity. In the Preliminary Determination we treated PRC 
exporters/producers, that did not respond to the Department's request 
for information as part of the PRC-wide entity because they did not 
demonstrate that they operate free of government control. No additional 
information has been placed on the record with respect to these 
entities, SiChuan Blue Sword, or SD BNI after the Preliminary 
Determination.
    The PRC-wide entity has not provided the Department with the 
requested information; therefore, pursuant to section 776(a)(2)(A) of 
the Act, the Department continues to find that the use of facts 
available is appropriate to determine the PRC-wide rate. As noted 
above, section 776(b) of the Act provides that, in selecting from among 
the facts otherwise available, the Department may employ an adverse 
inference if an interested party fails to cooperate by not acting to 
the best of its ability to comply with requests for information. See 
Notice of Final Determination of Sales at Less Than Fair Value: Certain 
Cold-Rolled Flat-Rolled Carbon-Quality Steel Products from the Russian 
Federation, 65 FR 5510, 5518 (February 4, 2000). See also, Statement of 
Administrative Action accompanying the URAA, H.R. Rep. No. 103-316, 
vol. 1, at 870 (1994) (``SAA''). We find that, because the PRC-wide 
entity did not respond to our request for information, it has failed to 
cooperate to the best of its ability. Therefore, the Department finds 
that, in selecting from among the facts otherwise available, an adverse 
inference is appropriate for the PRC-wide entity.
    Because we begin with the presumption that all companies within a 
NME country are subject to government control and because only the 
companies listed under the ``Final Determination Margins'' section 
below have overcome that presumption, we are applying a single 
antidumping rate - the PRC-wide rate - to all other exporters of 
subject merchandise from the PRC. Such companies did not demonstrate 
entitlement to a separate rate. 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 (May 3, 2000). The PRC-wide rate 
applies to all entries of merchandise under consideration except for 
entries from Wenda Co., Ltd., Yunnan Newswift Company Ltd., Tianjin 
Chengyi International Trading Co., Ltd., and Snow-Apple Group Limited, 
which are listed in the ``Final Determination Margins'' section below.

Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information, rather than on

[[Page 30379]]

information obtained in the course of an investigation as facts 
available, it must, to the extent practicable, corroborate that 
information from independent sources reasonably at its disposal. 
Secondary information is described in the SAA 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.''\5\ The 
SAA provides that to ``corroborate'' means simply that the Department 
will satisfy itself that the secondary information to be used has 
probative value.\6\ The SAA also states that independent sources used 
to corroborate may include, for example, published price lists, 
official import statistics and customs data, and information obtained 
from interested parties during the particular investigation.\7\ To 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
used.\8\
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    \5\ See SAA at 870.
    \6\ See id.
    \7\ See id.
    \8\ 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).
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    As total AFA the Department preliminarily selected the rate of 
95.40 from the Petition.\9\ Petitioners' methodology for calculating 
the export price and normal value (``NV'') in the Petition is discussed 
in the Initiation Notice.\10\ At the Preliminary Determination, because 
there were no margins calculated for the mandatory respondents, to 
corroborate the 95.40 percent margin used as AFA for the China-wide 
entity, to the extent appropriate information was available, we 
affirmed our pre-initiation analysis of the adequacy and accuracy of 
the information in the petition.\11\ During our pre-initiation 
analysis, we examined evidence supporting the calculations in the 
petition and the supplemental information provided by Petitioners prior 
to initiation to determine the probative value of the margins alleged 
in the petition. During our pre-initiation analysis, we examined the 
information used as the basis of export price and normal value (``NV'') 
in the petition, and the calculations used to derive the alleged 
margins. Also during our pre-initiation analysis, we examined 
information from various independent sources provided either in the 
petition or, based on our requests, in supplements to the petition, 
which corroborated key elements of the export price and NV 
calculations.\12\
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    \9\ See Petition for the Imposition of Antidumping and 
Countervailing Duties on Imports of Certain Sodium and Potassium 
Phosphate Salts from the People's Republic of China, dated September 
24, 2009.
    \10\ See Certain Sodium and Potassium Phosphate Salts from the 
People's Republic of China: Initiation of Antidumping Duty 
Investigation, 74 FR 54024 (October 21, 2009), (``Initiation 
Notice'').
    \11\ See Antidumping Investigation Initiation Checklist: Certain 
Sodium and Potassium Phosphate Salts (``Initiation Checklist'').
    \12\ See id.
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    Similarly, for the final determination, we have also corroborated 
our AFA margin by affirming our pre-initiation analysis. Because no 
parties commented on the selection of the PRC-wide rate, we continue to 
find that the margin of 95.40 percent has probative value. Accordingly, 
we find that the rate of 95.40 percent is corroborated within the 
meaning of section 776(c) of the Act.

Critical Circumstances

    On April 2, 2010, Petitioners submitted an allegation of critical 
circumstances with respect to the merchandise under consideration. On 
March 5, 2010, we issued the Preliminary Critical Circumstances 
Determination, stating that we had reason to believe or suspect 
critical circumstances exist with respect to imports of salts from the 
PRC. As noted above, Petitioners withdrew their critical circumstances 
allegation on May 18, 2010. Pursuant to this withdrawal, and because 
the Department has not ``expended significant resources'' in examining 
the allegation,\13\ the Department determines there is no need to make 
a critical circumstances determination in this investigation and is 
terminating the critical circumstances inquiry. We will instruct U.S. 
Customs and Border Protection (``CBP'') to terminate the suspension of 
liquidation and refund any cash deposits and release any bond or other 
security previously posted for all imports of subject merchandise 
entered, or withdrawn from warehouse, for consumption between December 
16, 2009, which is 90 days prior to the date of publication of the 
Preliminary Determination, and March 15, 2010.
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    \13\ See Notice of Final Determination of Sales at Less Than 
Fair Value and Termination of Critical- Circumstances Investigation: 
Electrolytic Manganese Dioxide from Australia, 73 FR 47586, 47586-87 
(August 14, 2008), granting a post-preliminary determination request 
to withdraw a critical circumstances allegation.
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Final Determination Margins

    We determine that the following percentage weighted-average margins 
exist for the following entities for the POI:

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                                                                                                    Weighted-
               Exporter                                        Supplier                           Average Margin
----------------------------------------------------------------------------------------------------------------
Snow-Apple Group Limited.............                  Chengdu Long Tai Biotechnology Co., Ltd.          69.58
Tianjin Chengyi International Trading      Zhenjiang Dantu Guangming Auxiliary Material Factory          69.58
 (Tianjin) Co., Limited..............
Tianjin Chengyi International Trading             Sichuan Shifang Hongsheng Chemicals Co., Ltd.          69.58
 (Tianjin) Co., Limited..............
Wenda Co., Ltd.......................                  Thermphos (China) Food Additive Co., Ltd          69.58
Yunnan Newswift Company Ltd..........           Guangxi Yizhou Yisheng Fine Chemicals Co., Ltd.          69.58
Yunnan Newswift Company Ltd..........           Mainzhu Hanwang Mineral Salt Chemical Co., Ltd.          69.58
Yunnan Newswift Company Ltd..........            Sichuan Shengfeng Phosphate Chemical Co., Ltd.          69.58
PRC-Wide\14\.........................  ........................................................          95.40
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\14\ The PRC-wide rate includes Sichuan Blue Sword Import and Export Co., Ltd., and SD BNI (LYG) Co., Ltd.


[[Page 30380]]

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing CBP to continue to suspend liquidation of all imports of 
subject merchandise entered or withdrawn from warehouse, for 
consumption for the PRC-wide entity and the Separate Rate Recipients on 
or after March 16, 2010. 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 margins shown above.
    These suspension of liquidation instructions will remain in effect 
until further notice.

ITC 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, within 45 days 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 
merchandise under investigation. 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 merchandise under investigation 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 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: May 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-13071 Filed 5-28-10; 8:45 am]
BILLING CODE 3510-DS-S