[Federal Register Volume 73, Number 160 (Monday, August 18, 2008)]
[Notices]
[Pages 48195-48198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19099]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-919]


Electrolytic Manganese Dioxide From the People's Republic of 
China: Final Determination of Sales at Less Than Fair Value

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

EFFECTIVE DATE: August 18, 2008.
SUMMARY: On March 26, 2008, the Department of Commerce (the 
``Department'') published its preliminary determination of sales at 
less than fair value (``LTFV'') in the antidumping (``AD'') 
investigation of electrolytic manganese dioxide (``EMD'') from the 
People's Republic of China (``PRC''). The period of investigation 
(``POI'') is January 1, 2007, through June 30, 2007. We invited 
interested parties to comment on our preliminary determination of sales 
at LTFV. Based on our analysis of the comments we received, we have 
made changes to our calculations for the mandatory respondent. We 
determine that EMD from the PRC is being, or is 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.

FOR FURTHER INFORMATION CONTACT: Eugene Degnan or Robert Bolling, 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: (202) 482-
0414 or (202) 482-3434, respectively.

SUPPLEMENTARY INFORMATION:

Case History

    The Department published its preliminary determination of sales at 
LTFV on
    March 26, 2008. See Electrolytic Manganese Dioxide from the 
People's Republic of China: Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination, 73 FR 15988 
(March 26,

[[Page 48196]]

2008) (``Preliminary Determination''). Between April 21 and April 25, 
2008, the Department conducted verification of Guizhou Redstar 
Developing Import and Export Company, Ltd. (``Redstar''). See 
Verification of the Sales and Factors Response of Redstar in the 
Antidumping Investigation of Electrolytic Manganese Dioxide from the 
People's Republic of China, dated June 24, 2008 (``Redstar Verification 
Report''). See also the ``Verification'' section below for additional 
information.
    We invited interested parties to comment on the Preliminary 
Determination. On May 22, 2008, multiple interested parties filed case 
briefs with respect to the scope of this AD and the concurrent 
countervailing duty (``CVD'') proceeding. On May 27, 2008, many of 
these same parties filed rebuttal comments regarding the scope of these 
two proceedings. In addition, on May 27, 2008, multiple interested 
parties filed case briefs with respect to issues specific to the AD 
proceeding. These same parties filed rebuttal briefs on June 2, 2008. 
The Department held two hearings on June 12, 2008, one solely related 
to the scope of the AD and CVD proceedings and the second to address 
issues related solely to the AD investigation.

Period of Investigation

    The period of investigation (``POI'') is January 1, 2007, through 
June 30, 2007. This period corresponds to the two most recent fiscal 
quarters prior to the month of the filing of the petition, which was 
September 2007.\1\
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    \1\ See 19 CFR 351.204(b)(1).
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Scope of Investigation

    The merchandise covered by this investigation includes all 
manganese dioxide (MnO[bds2]) that has been manufactured in an 
electrolysis process, whether in powder, chip, or plate form. Excluded 
from the scope are natural manganese dioxide (NMD) and chemical 
manganese dioxide (CMD). The merchandise subject to this investigation 
is classified in the Harmonized Tariff Schedule of the United States 
(``HTSUS'') at subheading 2820.10.00.00. While the HTSUS subheading is 
provided for convenience and customs purposes, the written description 
of the scope of this investigation is dispositive.

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by Redstar for use in our final determination. 
See the Redstar Verification Report on the record of this investigation 
in the Central Records Unit (``CRU''), Room 1117 of the main Department 
building. We used standard verification procedures, including 
examination of relevant accounting and production records, as well as 
original source documents provided by respondents.

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 Antidumping Duty Investigation of Electrolytic Manganese 
Dioxide from the People's Republic of China, dated concurrently with 
this notice and, which is hereby adopted by this notice (``Issues and 
Decision Memorandum''). A list of the issues which parties raised and 
to which we respond in the Issues and Decision Memorandum is attached 
to this notice as Appendix II. The Issues and Decision Memorandum is a 
public document and is on file in the CRU, and is accessible on the Web 
at ia.ita.doc.gov/frn. The paper copy and electronic version of the 
memorandum are identical in content.

Changes Since the Preliminary Determination

    Based on our analysis of information on the record of this 
investigation, we have made changes to the margin calculations for the 
final determination for all mandatory respondents.

General Issues

    Based on an analysis of comments received, and the update of the 
PRC wage rate, the Department has made certain changes in the margin 
calculations. For the final determination, the Department has made the 
following changes with respect to Redstar:
    <bullet> The Department is valuing the inputs manganese carbonate 
ore and manganese oxide ore using the publicly available price list 
from Manganese Ore India Ltd.'s (``MOIL'') website, and adjusting the 
value to account for the percentage of manganese content. See 
Electrolytic Manganese Dioxide from the People's Republic of China: 
Surrogate Value Memorandum for the Final Determination (August 8, 2008) 
(``Surrogate Value Memo''); Issues and Decisions Memo at Comment 2.
    <bullet> The Department is using the financial statements of MOIL 
to calculate the surrogate financial ratios. The Department is basing 
the overhead and profit on the EMD division of MOIL, and the selling, 
general and administrative expenses ratio on the entire consolidated 
statements of MOIL. See Surrogate Value Memo; Issues and Decision 
Memorandum at Comment 3.
    <bullet> The Department is valuing all steam used in the production 
of EMD, including that steam derived as a by-product from production of 
merchandise not under investigation. Electrolytic Manganese Dioxide 
from the People's Republic of China: Analysis Memorandum for the Final 
Determination (August 8, 2008) (``Analysis Memo''); Issues and Decision 
Memorandum at Comment 4.
    <bullet> The Department is using the Maharashtra Industrial 
Development Corporation (``MIDC'') updated water tariff schedule, 
effective June 1, 2007, to value water. See Surrogate Value Memo; 
Issues and Decision Memorandum at Comment 6.
    <bullet> The Department is valuing Redstar's coal using TERI data 
for grade C steam coal. See Surrogate Value Memo; Issues and Decision 
Memorandum at Comment 9.
    <bullet> The Department is valuing labor using its revised labor 
rates published May 14, 2008. See Surrogate Value Memo; Issues and 
Decision Memorandum at Comment 10.
    <bullet> The Department is including in its calculation of normal 
value (``NV'') the electricity consumed by lighting and appliances in 
Redstar's workshops. See Analysis Memo; Issues and Decision Memorandum 
at Comment 11.

Surrogate Country

    In the Preliminary Determination, we stated that we had selected 
India as the appropriate surrogate country to use in this investigation 
for the following reasons: (1) it is a significant producer of 
comparable merchandise; (2) it is at a similar level of economic 
development comparable to that of the PRC; and (3) we have reliable 
data from India that we can use to value the factors of production. See 
Preliminary Determination. For the final determination, we received no 
comments and have made no changes to our findings with respect to the 
selection of a surrogate country.

Separate Rates

    In proceedings involving non-market-economy (``NME'') countries, 
the Department begins with a rebuttable presumption that all companies 
within

[[Page 48197]]

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 
19 CFR 351.107(d).
    In the Preliminary Determination, we found that Redstar 
demonstrated its eligibility for separate-rate status. For the final 
determination, we continue to find that the evidence placed on the 
record of this investigation by Redstar demonstrates both de jure and 
de facto absence of government control with respect to its exports of 
the merchandise under investigation, and therefore, Redstar is eligible 
for separate-rate status.

Use of Facts Available

    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 sections 782(c)(1) and (e) of the Act; 
(C) significantly impedes a proceeding 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 requested in the requested form and manner, 
together with a full explanation and suggested alternative forms 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), 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 
Department ``finds that an interested party has failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information from the administering authority or the Commission, the 
administering authority or the Commission ..., in reaching the 
applicable determination under this title, may use an inference that is 
adverse to the interests of that party in selecting from among the 
facts otherwise available.'' See also Statement of Administrative 
Action (SAA) accompanying the Uruguay Round Agreements Act (URAA), H.R. 
Rep. No. 103-316, Vol. 1 at 870 (1994).
    For this final determination, in accordance with sections 
773(c)(3)(A) and (B) of the Act and sections 776(a)(2)(A), (B) and (D) 
and 776(b) of the Act, we have determined that the use of adverse facts 
available (``AFA'') is warranted for the PRC entity, as discussed 
below.

The PRC-Wide Rate

    Because we begin with the presumption that all companies within an 
NME country are subject to government control and because only the 
company listed under the ``Final Determination Margin'' section below 
has overcome that presumption, we are applying a single antidumping 
rate - the PRC-wide rate - to all other 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 (May 3, 2000). The PRC-wide rate applies to all 
entries of subject merchandise except for entries from Redstar.
    In the Preliminary Determination, the Department found that the 
PRC-wide entity (including Xiangtan Electrochemical Scientific Ltd.) 
failed to respond to the Department's questionnaires, withheld or 
failed to provide information in a timely manner or in the form or 
manner requested by the Department, and otherwise impeded the 
proceeding. Therefore, in the Preliminary Determination we treated 
these PRC producers/exporters as part of the PRC-wide entity because 
they did not demonstrate that they operate free of government control 
over their export activities. No additional information was placed on 
the record with respect to these entities after the Preliminary 
Determination. In addition, because the PRC-wide entity did not provide 
the Department with the requested information, pursuant to section 
776(a)(2)(A) and (C) of the Act, the Department continues to find that 
the use of facts available is appropriate to determine the PRC-wide 
rate. 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, SAA at 870. 
We have determined 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 warranted.

Corroboration

    Section 776(c) of the Act provides that, when the Department relies 
on secondary information in using the facts otherwise available, it 
must, to the extent practicable, corroborate that information from 
independent sources that are reasonably at its disposal. We have 
interpreted ``corroborate'' to mean that we will, to the extent 
practicable, examine the reliability and relevance of the information 
submitted. See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products 
From Brazil, 65 FR 5554, 5568 (February 4, 2000); see, e.g., 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;

[[Page 48198]]

Preliminary Results of Antidumping Duty Administrative Reviews and 
Partial Termination of Administrative Reviews, 61 FR 57391, 57392 
(November 6, 1996) (unchanged in the final results).
    In the Preliminary Determination, we stated we used as AFA the 
higher of (a) the highest margin alleged in the petition, or (b) the 
highest calculated rate of any respondent in the investigation.\2\ No 
parties commented on the selection of the PRC-wide rate. In the instant 
investigation, as AFA for the final determination, we have assigned to 
the PRC-wide entity a margin of 149.92 percent, the highest calculated 
rate of any respondent in this proceeding, which is the calculated rate 
of the respondent Redstar. We determined that this information is the 
most appropriate from the available sources to effectuate the purposes 
of AFA. Because the AFA rate for this investigation is a calculated 
rate from the respondent and is not based on secondary information, no 
corroboration is required within the meaning of section 776(c) of the 
Act.
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    \2\See Final Determination of Sales at Less Than Fair Value: 
Certain Cold-Rolled Carbon Quality Steel Products from the People's 
Republic of China, 65 FR 34660 (May 21, 2000), and accompanying 
Issues and Decision Memorandum at ``Facts Available.''
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Final Determination Margins

    We determine that the following weighted-average percentage margin 
exists for the POI:

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                    EXPORTER                                        PRODUCER                         MARGIN
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Guizhou Redstar Developing Import and Export       Guizhou Redstar Developing Dalong Manganese          149.92 %
 Company, Ltd..................................                           Industrial Co., Ltd.
PRC-Wide Entity................................  .............................................         *149.92 %
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 * Xiangtan Electrochemical Scientific Ltd. is included in the PRC-wide entity

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing U.S. Customs and Border Protection (``CBP'') to continue to 
suspend liquidation of all imports of subject merchandise entered or 
withdrawn from warehouse, for consumption on or after March 26, 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 margins shown above. The 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 
subject merchandise. 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 and 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 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: August 8, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.

Appendix

Comment 1: Valuation of Manganese Ore as an Intermediate Input
Comment 2: Surrogate Value for Manganese Ore
Comment 3: Surrogate Financial Ratio Calculation
Comment 4: Steam Consumption
Comment 5: Electricity Inputs to Steam Production
Comment 6: Surrogate Value for Water
Comment 7: Surrogate Value Source for Truck Freight
Comment 8: Grinding Bars and Rings
Comment 9: Surrogate Value for Coal
Comment 10: Labor Wage Rate
Comment 11: Electricity used for Lighting and Appliances in Workshops
[FR Doc. E8-19099 Filed 8-15-08; 8:45 am]
BILLING CODE 3510-DS-S