Silicon Metal From the People's Republic of China: Preliminary Results and Preliminary Partial Rescission of Antidumping Duty Administrative Review

Summary:

The Department of Commerce (“Department”) is currently conducting the 2006/2007 administrative review of the antidumping duty order on silicon metal from the People's Republic of China (“PRC”). The period of review (“POR”) for this administrative review is June 1, 2006, through May 31, 2007. Fifteen companies reported that they had no shipments of subject merchandise during the POR; therefore, we are preliminarily rescinding our review of these companies. We preliminarily determine that three companies, Hunan Provincial Import Export Group Co (PRC) (“Hunan Provincial”), Gather Hope Int'l Co., Ltd. (“Gather Hope”), and Alloychem Impex Corp. (“Alloychem”), have failed to cooperate by not acting to the best of their ability to cooperate with the Department's requests for information and, as a result, should be assigned a rate based on adverse facts available (“AFA”). If these preliminary results are adopted in our final results of these reviews, we will instruct U.S. Customs and Border Protection (“CBP”) to assess antidumping duties on entries of subject merchandise during the POR for which the importer-specific assessment rates are above de minimis.

Interested parties are invited to comment on these preliminary results. We will issue the final results no later than 120 days from the date of publication of this notice.

Table of Contents

For further information contact:

Scot Fullerton or Michael Quigley, 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) 482-1386 and (202) 482-4047, respectively.

Supplementary information:

Background

On June 1, 2007, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on siliconmetal from the PRC for the POR June 1, 2006, through May 31, 2007. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 72 FR 61859 (June 1, 2007). On July 2, 2007, Globe Metallurgical Inc. (“Petitioner”), requested that the Department conduct an administrative review of 18 companies (collectively “Respondents”). On August 6, 2007, the Department published a notice of initiation of an antidumping duty administrative review on silicon metal from the PRC, in which it initiated a review of these Respondents. See Notice of Initiation of the Administrative Review of the Antidumping Duty Order on Silicon Metal from the People's Republic of China(“Initiation Notice”), 72 FR 43597, (August 6, 2007).

On August 24, 2007, the Department sent quantity and value (“QV”) questionnaires to the Respondents listed in the Initiation Notice. The Department sent a second round of QV questionnaires to companies that did not respond to the first round on September 17, 2007. On October 22, 2007, the Department sent three additional QV questionnaires to companies which had not responded.

In response to the QV questionnaires that the Department sent on August 24, 2007, the following seven companies replied that they had no shipments of subject merchandise to the United States during the POR: Jiangxi Gangyuan Silicon Industry (“Gangyuan”); MPM Silicones, LLC (“MPM United States”); GE Silicones Canada (“MPM Canada”); Global Minerals Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; and Carbonsi Mettalurgical Inc. In response to the QV questionnaires that the Department sent on September 17, 2007, the following three companies replied that they had no shipments of subject merchandise under review to the United States during the POR: Crown All Corporation; Ferro-Alliages Mineraux Inc.; and Chemical Alloy Inc. In response to the QV questionnaires that the Department sent on October 22, 2007, the following two companies replied that they had no shipments of subject merchandise under review to the United States during the POR: IMMECC Resources Inc. and Bomet (Canada) Inc.

In addition to the 12 companies listed above which provided the Department with no-shipment responses, the Department was unable to find correct addresses for these three companies: Coldstone Metals Inc. (“Coldstone”); Global Minerals (Canada); and SeaView Trading. The Department's August 24, 2007, QV questionnaire to SeaView Trading was returned to the Department, and its August 24, 2007, QV questionnaire to Global Minerals Canada was “undeliverable” due to an “incorrect address.” The Department's August 24, 2007, QV questionnaire to Coldstone was delivered, but its September 17, 2007, QV questionnaire was “undeliverable.” Federal Express informed the Department that Coldstone had moved.

For three other companies, the Department sent its QV questionnaire twice, received confirmation of their delivery, but received no response from the companies. Both Hunan Provincial and Gather Hope received the QV questionnaires the Department sent on August 24, 2007, and September 17, 2007. As for Alloychem, the August 24, 2007, QV questionnaire was returned to the Department, but the Department sent this company the QV questionnaire again on both September 5, 2007, and October 22, 2007, and both of those mailings were successfully delivered.

On October 3, 2007, Petitioner requested that the Department clarify discrepancies between the testimony of MPM United States and MPM Canada (collectively, “MPM”) to the Foreign Trade Zone Board and documentation on the record of the 2005/2006 New Shipper Review of Gangyuan. On October 31, 2007, Petitioner also requested that the Department issue additional questions to MPM related to the possible transshipment of silicon metal. Similarly, on November 13, 2007, Petitioner submitted comments on the QV responses submitted by Ferro-Alliages, Chemical and Alloy Inc., and Crown All Corporation, and requested that the Department request additional information from Ferro-Alliages regarding the source of the silicon metal that it exported to the United States and the ultimate disposition of the silicon metal that it imported into Canada from China.

On November 27, 2007, the Department reviewed the requests made by Petitioner. The Department noted that Gangyuan, MPM United States, and MPM Canada have each filed no-shipment responses in this review, and this information has not been contradicted by CBP data for imports of subject merchandise during the POR. See Memorandum to David M. Spooner, Assistant Secretary for Import Administration, from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, regarding “2006/2007 Antidumping Duty Administrative Review of Silicon Metal from the People's Republic of China: Responses to Quantity and Value Questionnaire,” dated November 27, 2007. On February 20, 2008, Petitioner repeated its November 13, 2007, request that the Department obtain additional information from Ferro-Alliages regarding the source of the silicon metal that it exported to the United States. In addition, Petitioner withdrew its request for review of Bomet (Canada) Inc., Carbonsi Metallurgical Inc., Chemical and Alloy Inc., Crown All Corp., Global Minerals (Canada), Global Minerals Corp., IMMECC Resources Inc., Lorbec Metals Ltd., SeaView Trading, and Transtrading House Ltd. Petitioner noted that although its withdrawal request was beyond the 90 days after the date of publication of the notice of initiation, the Department has discretion to extend this time limit if it decides that it is reasonable to do so.

Scope of the Order

The product covered by the order is silicon metal containing at least 96.00 but less than 99.99 percent of silicon by weight, and silicon metal with a higher aluminum content containing between 89 and 96 percent silicon by weight. The subject merchandise is currently classifiable under item numbers 2804.69.10 and 2804.69.50 of the Harmonized Tariff Schedule of the United States(“HTSUS”) as a chemical product, but is commonly referred to as a metal. Semiconductor-grade silicon (silicon metal containing by weight not less than 99.99 percent of silicon and provided for in subheading 2804.61.00 of the HTSUS) is not subject to this order. This order is not limited to silicon metal used only as an alloy agent or in the chemical industry. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Preliminary Partial Rescission of 2006/2007 Administrative Review

Several companies indicated they did not export silicon metal to the United States during the POR. In order to corroborate these submissions, we reviewed PRC silicon metal shipment data maintained by CBP, and found no discrepancies with the statements made by these firms.

Therefore, for the reasons mentioned above, we are preliminarily rescinding the administrative review with respect to these twelve companies: Gangyuan; MPM United States; MPM Canada; Global Minerals Corp.; Transtrading House Ltd.; Lorbec Metals Ltd.; Carbonsi Mettalurgical Inc.; Crown All Corporation; Ferro-Alliages Mineraux Inc.; Chemical Alloy Inc.; IMMECCResources Inc.; and Bomet (Canada) Inc. Each of these twelve companies reported having made no shipments of subject merchandise during the POR, and the Department found no information to indicate otherwise. With respect to Petitioner's February 20, 2008, withdrawal request for certain companies, as discussed above, we do not find any reasonable basis exists upon which to extend the time limit for withdrawal requests in this review.

The Department also indicated that it was unable to directly serve three companies with its QV questionnaire. See Memorandum to the File from Kristina Horgan, Senior International Trade Analyst, AD/CVD Operations, Office 9, regarding “Antidumping Duty Administrative Review of Silicon Metal from the People's Republic of China: Proof of Non-Delivery to Global Minerals (Canada) and SeaView Trading,” dated November 9, 2007. See also Memorandum to the File from Michael Quigley, International Trade Analyst, AD/CVD Operations, Office 9, regarding “Antidumping Duty Administrative Review of Silicon Metal from the People's Republic of China: Record of Mailings to Coldstone Metals Inc.,” dated November 20, 2007. Therefore, the Department preliminarily rescinds the review with respect to these companies, in accordance with our practice. See, e.g., Certain Steel Concrete Reinforcing Bars from Turkey: Preliminary results and Partial Rescission of Antidumping Duty Administrative Review, 71 FR 26455, 26457 (May 5, 2006).

Facts Available

For the reasons outlined below, we have applied total AFA to Hunan Provincial, Gather Hope, and Alloychem. Section 776(a)(2) of the Tariff Act of 1930, as amended (“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 section 782(d) of the Act, use facts otherwise available in reaching the applicable determination. Section 782(d) of the Act provides that when the Department finds that a respondent has not complied with a request for information, the Department shall inform the respondent of the deficiency and allow them an opportunity to remedy or explain the deficiency.

We find that Hunan Provincial, Gather Hope, and Alloychem have failed to provide information requested by the Department. Accordingly, we find it appropriate to apply facts otherwise available consistent with section 776(a)(2)(A).

In addition, pursuant to section 776(b) of the Act, 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,” the Department may use information that is adverse to the interests of the party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”See Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act (“URAA”), H.R. Rep. No. 103-316, Vol. 1 (1994) at 870.

The Department sent the QV questionnaire to Hunan Provincial, Gather Hope, and Alloychem twice. Evidence on the record confirms that the questionnaire was delivered to each of these parties on both occasions. Hunan Provincial, Gather Hope, and Alloychem, however, made no attempt to respond to the questionnaire. By not responding to the Department's QV questionnaire, Hunan Provincial, Gather Hope, and Alloychem failed to provide critical information to be used for the Department's respondent selection process. Under these circumstances, the Department finds that Hunan Provincial, Gather Hope, and Alloychem have failed to cooperate to the best of their ability. Accordingly, the Department finds it necessary, pursuant to section 776(b) of the Act, to use AFA as the basis for these preliminary results of review for Hunan Provincial, Gather Hope, and Alloychem.

In addition, because the above-referenced companies did not submit a separate rate application or certification, the Department was unable to determine whether or not they qualified for a separate rate. Therefore, they are not eligible to receive a separate rate and will be part of the PRC-wide entity, subject to the PRC-wide rate.

Selection of AFA Rate

In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) authorize the Department to rely on information derived from (1) the petition, (2) a final determination in the less-than-fair-value (“LTFV”) investigation, (3) any previous review or determination, or (4) any information placed on the record. In reviews, the Department normally selects, as AFA, the highest rate on the record of any segment of the proceeding. See, e.g., Freshwater Crawfish Tail Meat from the People's Republic of China: Notice of Final Results of Antidumping Duty Administrative Review, 68 FR 19504, 19506 (April 21, 2003). The Court of International Trade (“CIT”) and the Court of Appeals for the Federal Circuit have upheld the Department's practice in this regard. See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed. Cir. 1990) (“Rhone Poulenc”);NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding a 73.55 percent total AFA rate, the highest available dumping margin from a different respondent in the LTFV investigation), aff'd, 481 F.3d 1355 (Fed. Cir. 2007);see also Shanghai Taoen International Trading Co., Ltd. v. United States, 360 F. Supp 2d 1339, 1348 (CIT 2005) (upholding a 223.01 percent total AFA rate, the highest available dumping margin from a different respondent in a previous administrative review); and Kompass Food Trading Int'l v. United States, 24 CIT 678, 689 (2000) (upholding a 51.16 percent total AFA rate, the highest available dumping margin from a different, fully cooperative respondent).

The Department's practice when selecting an adverse rate from among the possible sources of information is to ensure that the margin is sufficiently adverse “as to effectuate the purpose of the facts available role to induce respondents to provide the Department with complete and accurate information in a timely manner.”See Static Random Access Memory Semiconductors from Taiwan; Final Determination of Sales at Less than Fair Value, 63 FR 8909, 8932 (February 23, 1998). The Department's practice also ensures “that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.”See SAA at 870;see also Final Determination of Sales at Less than Fair Value: Certain Frozen and Canned Warmwater Shrimp from Brazil, 69 FR 76910, 76912 (December 23, 2004);DL Supply Co. v. United States, 113 F. 3d 1220, 1223 (Fed. Cir. 1997). In choosing the appropriate balance between providing respondents with an incentive to respond accurately and imposing a rate that is reasonably related to the respondent's prior commercial activity, selecting the highest prior margin “reflects a common sense inference that the highest prior margin is the most probative evidence of current margins, because, if it were not so, the importer, knowing of the rule,would have produced current information showing the margin to be less.”Rhone Poulenc, 899 F.2d at 1190. Consistent with the statute, court precedent, and its normal practice, the Department has assigned the rate of 139.49 percent, the highest rate on the record of any segment of the proceeding, to the PRC-wide entity, which includes Hunan Provincial, Gather Hope, and Alloychem, as AFA. See, e.g., Notice of Final Results of Antidumping Duty Administrative Review: Silicon Metal from the People's Republic of China, 68 FR 35383 (June 13, 2003) (“2001/2002 Silicon Metal Final Results”). As discussed further below, this rate has been corroborated.

Corroboration of Facts Available

Section 776(c) of the Act requires that the Department corroborate, to the extent practicable, a figure which it applies as facts available. To be considered corroborated, information must be found to be both reliable and relevant. We are applying as AFA the highest rate from any segment of this administrative proceeding, which is the rate currently applicable to all exporters subject to the PRC-wide rate. The AFA rate in the current review (i.e., the PRC-wide rate of 139.49 percent) represents the highest rate from the petition in the LTFV investigation. See Antidumping Duty Order: Silicon Metal From the People's Republic of China, 56 FR 26649 (June 10, 1991).

To be considered corroborated, information must be found to be both reliable and relevant. Unlike other types of information, such as input costs or selling expenses, there are no independent sources for calculated dumping margins. The only sources for calculated margins are administrative determinations. The information upon which the AFA rate we are applying for the current review was corroborated most recently in the 2001/2002 administrative review of silicon metal from the PRC. See Silicon Metal from the People's Republic of China: Notice of Preliminary Results of Antidumping Duty Administrative Review, 68 FR 11369 (March 10, 2003), unchanged in 2001/2002 Silicon Metal Final Results. Furthermore, no information has been presented in the current review that calls into question the reliability of this information. Thus, the Department finds that the information is reliable.

With respect to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. For example, in Fresh Cut Flowers from Mexico; Final Results of Antidumping Administrative Review, 61 FR 6812, 6814 (February 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. The information used in calculating this margin was based on sales and production data submitted by the petitioner in the LTFV investigation, together with the most appropriate surrogate value information available to the Department chosen from submissions by the parties in the LTFV investigation, as well as information gathered by the Department itself. Furthermore, the calculation of this margin was subject to comment from interested parties in the 2001/2002 administrative review. As there is no information on the record of this review that demonstrates that this rate is not appropriately used as AFA, we determine that this rate has relevance.

As the 139.49 percent rate is both reliable and relevant, we determine that it has probative value. Accordingly, we determine that the calculated rate of 139.49 percent, which is the current PRC-wide rate, is in accordance with the requirement of section 776(c) of the Act that secondary information be corroborated to the extent practicable (i.e., that it has probative value). We have assigned this AFA rate to exports of the subject merchandise by the PRC-wide entity.

Preliminary Results of Review

We preliminarily determine that the following margin exists during the period June 1, 2006, through May 31, 2007:

Silicon Metal from the PRC
1PRC-Wide Entity includes Hunan Provincial, Gather Hope and Alloychem.
PRC-Wide Entity1 139.49

Any interested party may request a hearing within 30 days of publication of this notice. Interested parties who wish to request a hearing or to participate if one is requested, must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed. See19 CFR 351.310(c).

Issues raised in the hearing will be limited to those raised in case and rebuttal briefs. Case briefs from interested parties may be submitted not later than 30 days of the date of publication of this notice, pursuant to 19 CFR 351.309(c). Rebuttal briefs, limited to issues raised in the case briefs, will be due five days later, pursuant to 19 CFR 351.309(d). Parties who submit case or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument. Parties are also encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited.

The Department will issue the final results of this review, including the results of its analysis of issues raised in any such written briefs or at the hearing, if held, not later than 120 days after the date of publication of this notice.

Assessment Rates

Pursuant to 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this review. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any assessment rate calculated in the final results of this review is above de minimis. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(c) of the Act: (1) for Hunan Provincial, Gather Hope, and Alloychem, the cash deposit rate will be established in the final results of this review; (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to aseparate rate, the cash deposit rate will be the PRC-wide rate of 139.49 percent; and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importers

This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.

This administrative review and notice are in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.213.

Dated: February 29, 2008. Stephen J. Claeys,

Acting Assistant Secretary for Import Administration.

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