Notice of Final Determination of Sales at Less Than Fair Value and ...

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Notice of Final Determination of Sales at Less Than Fair Value andTermination of Critical- Circumstances Investigation: ElectrolyticManganese Dioxide from Australia

Released : Thursday, August 14, 2008 10:38 AM
DEPARTMENT OF COMMERCE (DOC)
International Trade Administration (ITA)
Import Administration
Citation: "73 FR 47586"
Document Number: "A-602-806"
Page Number: "47586"
"Notices"
SUMMARY: The Department of Commerce determines that imports ofelectrolytic manganese dioxide from Australia are being, or arelikely to be, sold in the United States at less than fair value, asprovided in section 735 of the Tariff Act of 1930, as amended (theAct). The final weighted-average dumping margins are listed belowin the section entitled "Final Determination of Investigation."
EFFECTIVE DATE: August 14, 2008.
FOR FURTHER INFORMATION CONTACT: Hermes Pinilla or Minoo Hatten,AD/CVD Operations, Office 5, Import Administration, InternationalTrade Administration, U.S. Department of Commerce, 14th Street andConstitution Avenue, NW, Washington, DC 20230; telephone: (202)482-3477 and (202) 482-1690, respectively.
SUPPLEMENTARY INFORMATION: On March 26, 2008, the Department ofCommerce (the Department) published its preliminary determinationof sales at less than fair value in the antidumping dutyinvestigation of electrolytic manganese dioxide (EMD) fromAustralia. See Notice of Preliminary Determination of Sales at LessThan Fair Value and Affirmative Preliminary Determination ofCritical Circumstances: Electrolytic Manganese Dioxide fromAustralia, 73 FR 15982 (March 26, 2008) (PreliminaryDetermination). On April 18, 2008, we postponed the deadline forthe final determination under section 735 (a)(2)(A) of the Act by60 days to August 8, 2008. See Postponement of Final Determinationof Antidumping Duty Investigation: Electrolytic Manganese Dioxidefrom Australia, 73 FR 21108 (April 18, 2008).
We invited parties to comment on the Preliminary Determination.We received a case brief from the respondent, Delta EMD AustraliaPty. Limited (Delta), on May 19, 2008; the petitioner, Tronox LLC,filed a rebuttal brief on May 27, 2008. At the request of Delta, weheld a hearing on June 17, 2008.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties tothis antidumping investigation are addressed in the "Issues andDecision Memorandum for the Antidumping Duty Investigation of EMDfrom Australia for the Period of Investigation July 1, 2006,through June 30, 2007" (Decision Memorandum) from Stephen J.Claeys, Deputy Assistant Secretary for Import Administration, toDavid M. Spooner, Assistant Secretary for Import Administration,dated August 8, 2008, which is hereby adopted by this notice. ThisDecision Memorandum is attached to this notice as an appendix andis on file in the Central Records Unit (CRU) in room 1117. Inaddition, a complete version of the Decision Memorandum can beaccessed directly on the Web at http://ia.ita.doc.gov/. The papercopy and electronic version of the Decision Memorandum areidentical in content.
Scope of Investigation
The merchandise covered by this investigation includes allmanganese dioxide (MnO2) that has been manufactured in anelectrolysis process, whether in powder, chip, or plate form.Excluded from the scope are natural manganese dioxide (NMD) andchemical manganese dioxide (CMD). The merchandise subject to thisinvestigation is classified in the Harmonized Tariff Schedule ofthe United States (HTSUS) at subheading 2820.10.00.00. While theHTSUS subheading is provided for convenience and customs purposes,the written description of the scope of this investigation isdispositive.
Period of Investigation
The period of investigation is from July 1, 2006, through June30, 2007.
Adverse Facts Available
For the final determination, we continue to find that, byfailing to provide information we requested, Delta did not act tothe best of its ability in responding to our requests forinformation. Thus, the Department continues to find that the use ofadverse facts available is warranted for this company undersections 776(a)(2) and (b) of the Act. See PreliminaryDetermination, 73 FR at 15983. As a result of our analysis ofcomments received, we have changed the adverse facts-available ratefor the final determination. Specifically, we have assigned Delta arate of 83.66 percent based on the rate alleged in the petition, asrecalculated in this final determination. See Final DeterminationAnalysis Memorandum (August 8, 2008). Further, pursuant to section776(c) of the Act and as discussed in the PreliminaryDetermination, we corroborated the key elements of the export-priceand normal-value calculation used in the petition to derive anestimated margin from which we have derived the adversefacts-available rate.
Termination of Critical Circumstances Investigation
On February 19, 2008, the petitioner in this investigation,Tronox LLC, submitted an allegation of critical circumstances withrespect to imports of electrolytic manganese dioxide fromAustralia. On March 19, 2008, we issued the PreliminaryDetermination, stating that we had reason to believe or suspectcritical circumstances exist with respect to imports of EMD fromAustralia. See Preliminary Determination, 73 FR at 15986-88. OnJuly 17, 2008, the petitioner withdrew its critical circumstancesallegation and requested that the Department terminate its criticalcircumstances inquiry. Therefore, we are terminating the criticalcircumstances investigation and we have not addressed any commentsregarding critical circumstances for the final determination. Wewill instruct U.S. Customs and Border Protection (CBP) to terminatethe suspension of liquidation of all imports of subject merchandiseproduced and exported by Delta entered, or withdrawn fromwarehouse, for consumption on or after December 27, 2007, which is90 days prior to the date of publication of the PreliminaryDetermination (March 26, 2008), and entered before March 26, 2008.CBP shall refund any cash deposits and release any bond or othersecurity previously posted in connection with merchandise producedand exported by Delta, the only known producer and exporter of EMDduring this investigation.
All-Others Rate
Section 735(c)(5)(B) of the Act provides that, where theestimated weighted-average dumping margins established for allexporters and producers individually investigated are zero or deminimis margins or are determined entirely under section 776 of theAct, the Department may use any reasonable method to establish theestimated all others rate for exporters and producers notindividually investigated. This provision contemplates that, if thedata do not permit weight-averaging margins other than the zero, deminimis, or total facts available margins, the Department may useany other reasonable method. See also Statement of AdministrativeAction accompanying the Uruguay Round Agreements Act, H. Doc. No.103-316, at 873 (1994). As discussed above, Delta is the solerespondent in this investigation and has been assigned a marginbased on total adverse facts available. Because the petitioncontained only one estimated dumping margin and because there areno other respondents in this investigation, there are no additionalestimated margins available for purposes of establishing anall-others rate. Therefore, with this final determination we areestablishing 83.66 percent as the all-others rate.
Final Determination of Investigation
We determine that the following weighted-average dumping marginsexist for the period July 1, 2006, through June 30, 2007:






Continuation of Suspension of Liquidation
Pursuant to section 735(c)(1)(B) of the Act and 19 CFR351.211(b)(1), we will instruct CBP to continue to suspendliquidation of all entries of subject merchandise from Australiaentered, or withdrawn from warehouse, for consumption on or afterMarch 26, 2008, the date of publication of the PreliminaryDetermination. We will instruct CBP to require a cash deposit orthe posting of a bond equal to the weighted-average margin, asindicated in the chart above, as follows: (1) the rate for Deltawill be 83.66 percent; (2) if the exporter is not a firm identifiedin this investigation but the producer is, the rate will be therate established for the producer of the subject merchandise; (3)the rate for all other producers or exporters will be 83.66percent. These suspension-of-liquidation instructions will remainin effect until further notice.
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notifiedthe International Trade Commission (ITC) of our finaldetermination. As our final determination is affirmative and inaccordance with section 735(b)(2) of the Act, the ITC willdetermine, within 45 days, whether the domestic industry in theUnited States is materially injured, or threatened with materialinjury, by reason of imports or sales (or the likelihood of sales)for importation of the subject merchandise. If the ITC determinesthat material injury or threat of material injury does not exist,the proceeding will be terminated and all securities posted will berefunded or canceled. If the ITC determines that such injury doesexist, the Department will issue an antidumping duty orderdirecting CBP to assess antidumping duties on all imports of thesubject merchandise entered, or withdrawn from warehouse, forconsumption on or after the effective date of the suspension ofliquidation.
Notification Regarding APO
This notice also serves as a reminder to parties subject toadministrative protective order (APO) of their responsibilityconcerning the disposition of proprietary information disclosedunder APO in accordance with 19 CFR 351.305. Timely notification ofreturn/destruction of APO materials or conversion to judicialprotective order is hereby requested. Failure to comply with theregulations and the terms of an APO is a sanctionable violation.
This determination is issued and published pursuant to sections735(d) and 777(i)(1) of the Act.
Dated: August 8, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.
Appendix
Comment: Profit for Constructed Value
[FR Doc. E8-18848 Filed 8-13-04; 8:45 am]
BILLING CODE: 3510-DS-S
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