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Notice

Creatine Monohydrate From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review

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Information about this document as published in the Federal Register.

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AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

The Department of Commerce is currently conducting an administrative review of the antidumping duty order on creatine monohydrate from the People's Republic of China. The period of review is February 1, 2002, through January 31, 2003. This review covers imports of subject merchandise from one producer/exporter.

We preliminarily find that sales have not been made at less than normal value. If these preliminary results are adopted in our final results of review, we will instruct the U.S. Customs and Border Protection Service (“CBP”) to liquidate entries of creatine Start Printed Page 62768monohydrate produced and exported by Suzhou Sanjian Nutrient and Health Products Co., Ltd., without regard to antidumping duties.

We invite interested parties 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.

EFFECTIVE DATE:

November 6, 2003.

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FOR FURTHER INFORMATION CONTACT:

Blanche Ziv, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4207.

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SUPPLEMENTARY INFORMATION:

Background

On February 4, 2000, the Department published an antidumping order on creatine monohydrate from the People's Republic of China (“PRC”). See Notice of Antidumping Duty Order: Creatine Monohydrate from the People's Republic of China, 65 FR 5583 (February 4, 2000). On February 3, 2003, the Department published in the Federal Register an Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 68 FR 5272 (February 3, 2003).

On February 28, 2003, in accordance with 19 CFR 351.213(b), a manufacturer/exporter of the subject merchandise, Suzhou Sanjian Nutrient & Health Products Co., Ltd. (“Sanjian”), requested that the Department conduct an administrative review of this order. On March 25, 2003, we published a notice of initiation of this review. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocations in Part, 68 FR 14394 (March 25, 2003). The period of this review (“POR”) is February 1, 2002, through January 31, 2003.

On April 14, 2003, we issued an antidumping questionnaire to Sanjian. We issued a supplemental questionnaire on July 18, 2003. We received responses to the original and supplemental questionnaires on May 21 and August 1, 2003, respectively.

Scope of the Review

Imports covered by this review are creatine monohydrate, which is commonly referred to as “creatine.” The chemical name for creatine monohydrate is N-(aminoiminomethyl)-N-methylgycine monohydrate. The Chemical Abstracts Service (“CAS”) registry number for this product is 6020-87-7. Creatine monohydrate in its pure form is a white, tasteless, odorless powder, that is a naturally occurring metabolite found in muscle tissue. Creatine monohydrate is provided for in subheading 2925.20.90 of the Harmonized Tariff Schedule of the United States (“HTSUS”). Although the HTSUS subheading and the CAS registry number are provided for convenience and customs purposes, the written description of the merchandise under review is dispositive.

Separate Rates

The Department has treated the PRC as a nonmarket economy (“NME”) country in all previous antidumping cases. See, e.g., Notice of Final Determination of Sales at Less than Fair Value: Refined Brown Aluminum Oxide (Otherwise known as Refined Brown Artificial Corundum or Brown Fused Alumina) from the People's Republic of China, 68 FR 55589 (September 26, 2003). It is the Department's standard policy to assign all exporters of the merchandise subject to review in NME countries a single rate unless an exporter can demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to exports. To establish whether an exporter is sufficiently independent of government control to be entitled to a separate rate, the Department analyzes the exporter in light of the criteria established in the 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 in the 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”). In this review, the sole respondent, Sanjian, is a PRC company; therefore, a separate rates analysis is necessary to determine whether its export activities are independent of government control.

Absence of De Jure Control

Evidence supporting, though not requiring, a finding of de jure absence of government control over export activities includes: (1) An absence of restrictive stipulations associated with an individual exporter's business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decentralizing control of companies. See Sparklers, 56 FR at 20589.

Absence of De Facto Control

A de facto analysis of absence of government control over exports is based on four factors—whether the respondent: (1) Sets its own export prices independent of the government and other exporters; (2) retains the proceeds from its export sales and makes independent decisions regarding the disposition of profits or financing of losses; (3) has the authority to negotiate and sign contracts and other agreements; and (4) has autonomy from the government regarding the selection of management. See Silicon Carbide, 59 FR at 22587; see also Notice of Final Determination of Sales at Less Than Fair Value: Furfuryl Alcohol from the People's Republic of China, 60 FR 22544, 22545 (May 8, 1995) (“Furfuryl Alcohol”).

In the Notice of Final Determination of Sales at Less Than Fair Value: Creatine Monohydrate from the People's Republic of China, 64 FR 71104, 71105 (December 20, 1999) (“LTFV Investigation”), we determined that there was de jure and de facto absence of government control of Suzhou Sanjian Fine Chemical Co. Ltd.”s (“Suzhou Chemical”) export activities and determined that Suzhou Chemical warranted a company-specific dumping margin. On April 18, 2003, we determined that Sanjian was the successor-in-interest to Suzhou Chemical. See Creatine Monohydrate from the People's Republic of China: Final Results of Changed Circumstances Review, 68 FR 19189 (April 18, 2003) (“Changed Circumstances Review”). For the POR, Sanjian responded to the Department's request for information regarding separate rates. We have found that the evidence on the record is consistent with the final determination in the LTFV Investigation and the Changed Circumstances Review, and Sanjian continues to demonstrate an absence of government control, both in law and in fact, with respect to its exports, in accordance with the criteria identified in Sparklers, Silicon Carbide, and Furfuryl Alcohol.

Export Price

For U.S. sales made by Sanjian, we calculated export price (“EP”), in accordance with section 772(a) of the Tariff Act of 1930, as amended (“the Act”), because the subject merchandise was sold to unaffiliated purchasers in the United States prior to importation into the United States and the facts did not otherwise warrant use of constructed export price.

We calculated EP based on the price to unaffiliated purchasers in the United States. In accordance with section 772(c) of the Act, as appropriate, we deducted from the starting price foreign inland freight, international freight, marine insurance, U.S. inland freight, Start Printed Page 62769U.S. customs duties, and other U.S. transportation expenses. We valued the deductions for foreign inland freight using surrogate data based on Indian freight costs. We selected India as the surrogate country for the reasons explained in the “Normal Value” section of this notice, below. Because the respondent used a market-economy shipper for more than an insignificant portion of its sales and paid for the shipping in a market-economy currency, we used the average price paid by that respondent to the market economy shipper to value international freight for all of its sales. See the “Factors of Production Valuation Memorandum” dated October 31, 2003 (“FOP memo”); See also Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, from the People's Republic of China; Preliminary Results of 2000-2001 Administrative Review, Partial Rescission of Review, and Notice of Intent to Revoke Order, in Part, 67 FR 45451, 45453 (July 9, 2002).

Normal Value

Section 773(c)(1) of the Act provides that the Department shall determine the normal value (“NV”) using a factors-of-production methodology if: (1) The merchandise is exported from an NME country; and (2) the information does not permit the calculation of NV using home-market prices, third-country prices, or constructed value (“CV”) under section 773(a) of the Act.

As discussed in the separate rates section, the Department considers the PRC to be an NME country. The Department has treated the PRC as an NME country in all previous antidumping proceedings. Furthermore, available information does not permit the calculation of NV using home-market prices, third-country prices, or CV under section 773(a) of the Act. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME country shall remain in effect until revoked by the administering authority. We have no evidence suggesting that this determination should be changed. Therefore, we treated the PRC as an NME country for purposes of this review and calculated NV by valuing the factors of production in a surrogate country.

Section 773(c)(4) of the Act requires the Department to value the NME producer's factors of production, to the extent possible, in one or more market economy countries that: (1) Are at a level of economic development comparable to that of the NME, and (2) are significant producers of comparable merchandise. The Department has determined that India, Pakistan, Indonesia, Sri Lanka, and the Philippines are countries comparable to the PRC in terms of overall economic development (see Memorandum from Jeff May, Director, Office of Policy, to Blanche Ziv, Import Compliance Specialist, Group 1, April 10, 2003). Although we have no information to indicate that India produces creatine, it does produce other products within the same customs heading, and it produces other fine chemicals with nutritional characteristics. We have therefore determined that India is a significant producer of comparable merchandise. Accordingly, we have calculated NV using Indian values for the PRC producer's factors of production.

We have obtained and relied upon publicly available information, wherever possible. In many instances, we used the Monthly Statistics of the Foreign Trade of India; Volume II Imports (“MSFTI” ) to value factors of production, energy inputs and packing materials. Consistent with the Final Determination of Sales at Less than Fair Value: Certain Automotive Replacement Glass Windshields From the People's Republic of China, 67 FR 6482 (February 12, 2002) and accompanying Issues and Decision Memorandum at Comment 1, we excluded import data reported in the MSFTI for Korea, Thailand and Indonesia in our surrogate value calculations. In addition to the MSFTI data, we used Indian domestic prices from Indian Chemical Weekly (“ICW”) to value certain chemical inputs. See the FOP memo.

Factors of Production

In accordance with section 773(c) of the Act, we calculated NV based on factors of production reported by Sanjian during the POR. To calculate NV, the reported unit factor quantities were multiplied by publicly available Indian surrogate values.

In selecting the surrogate values, we considered the quality, specificity, and contemporaneity of the data. As appropriate, we adjusted input prices to make them delivered prices. For the distances reported, we added to Indian CIF surrogate values a surrogate freight cost using the reported distances from the PRC port to the PRC factory, or from the domestic supplier to the factory. This adjustment is in accordance with the United States Court of Appeals for the Federal Circuit's (“CAFC”) decision in Sigma Corp. v. United States, 117 F. 3d 1401, 1407-1408 (Fed.Cir. 1997). For those values not contemporaneous with the POR, we adjusted for inflation using the appropriate wholesale or producer price index published in the International Monetary Fund's International Financial Statistics.

Sanjian reported that it purchased a portion of one its inputs, cyanamide, from a market economy supplier. Because we found that the amount of cyanamide purchased was insignificant, we did not use the price paid by Sanjian for this input, and instead used import values from the MSFTI. For further information, see the FOP memo.

Labor: We valued labor using the method described in 19 CFR 351.408(c)(3).

Electricity and Coal: Consistent with our approach in Manganese Metal from the People's Republic of China; Final Results of Antidumping Duty Administrative Review, 66 FR 15076 (March 15, 2001) (“Manganese Metal”), we calculated the surrogate value for electricity based on electricity rate data reported by the International Energy Agency (“IEA”), 4th quarter 2001. For coal, we used import values from the MSFTI.

Factory Overhead, Selling, General and Administrative Expenses (“SG&A”), and Profit: We based our calculation of factory overhead, SG&A, and profit on the 2002 financial statements of a producer of comparable merchandise, Riddhi Siddhi Gluco Boils Ltd. (“RSGB”), an Indian starch and dextrine producer.

Inland Freight Rates: To value truck freight rates, we used an average of trucking rates quoted in ICW.

Packing Materials: For packing materials we used import values from the MSFTI. For a complete analysis of surrogate values, see the FOP memo.

Preliminary Results of the Review

We preliminarily find the weighted average dumping margin for Sanjian for the period February 1, 2002, through January 31, 2003, to be zero percent.

Any interested party may request a hearing within 30 days of publication of this notice. See 19 CFR 351.310(c). Any hearing, if requested, will be held approximately 44 days after the date of publication of this notice, or the first working day thereafter. Interested parties may submit case briefs and/or written comments no later than 30 days after the date of publication of this notice. Rebuttal briefs and rebuttals to written comments, which must be limited to issues raised in such briefs or comments, may be filed not later than 37 days after the date of publication. Parties who submit arguments are requested to submit with the argument (1) a statement of the issue, (2) a brief summary of the argument, and (3) a table of authorities. The Department will issue a notice of final results of this Start Printed Page 62770administrative review, including the results of its analysis of issues raised in any such written comments, within 120 days of publication of these preliminary results.

Assessment Rates and Cash Deposit Requirements

Pursuant to 19 CFR 351.212(b), the Department calculates an assessment rate for each importer of the subject merchandise. Upon issuance of the final results of this administrative review, if any importer-specific assessment rates calculated in the final results are above de minimis (i.e., at or above 0.5 percent), the Department will issue appraisement instructions directly to the CBP to assess antidumping duties on appropriate entries by applying the assessment rate to the entered value of the merchandise. For assessment purposes, we calculate importer-specific assessment rates for the subject merchandise by aggregating the dumping duties due for all U.S. sales to each importer and dividing the amount by the total entered value of the sales to that importer.

The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of creatine entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided for by section 751(a)(1) of the Act: (1) The cash deposit rate for Sanjian will be the rate established in the final results of this administrative review; (2) for a company previously found to be entitled to a separate rate and for which no review was requested, the cash deposit rate will be the rate established in the most recent review of that company; (3) the cash deposit rate for all other PRC exporters will be 153.70 percent, the PRC-wide rate established in the LTFV investigation; and (4) the cash deposit rate for a non-PRC exporter of subject merchandise from the PRC will be the rate applicable to the PRC exporter that supplied that exporter. These cash requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.

Notification to Importers

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) 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.

We are issuing and publishing this determination in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

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Dated: October 31, 2003.

James J. Jochum,

Assistant Secretary for Import Administration.

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[FR Doc. 03-27974 Filed 11-5-03; 8:45 am]

BILLING CODE 3510-DS-P