[Federal Register Volume 64, Number 8 (Wednesday, January 13, 1999)]
[Notices]
[Pages 2171-2173]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-694]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-827]
Certain Cased Pencils From the People's Republic of China; Final
Results of Antidumping Duty Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of antidumping duty administrative
review.
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SUMMARY: On September 11, 1998, the Department of Commerce (the
Department) published the preliminary results and partial rescission of
administrative review of the antidumping duty order on certain cased
pencils from the People's Republic of China (59 FR 66909 (December 28,
1994)), covering the period December 1, 1996, through November 30, 1997
(63 FR 48697). We gave interested parties an opportunity to comment on
our preliminary results. We received one comment from the petitioners,
the Pencil Section of the Writing Instrument Manufacturers Association
and its members (domestic producers of pencils). We received no
comments from respondents or other interested parties. Based on our
analysis of the comment received, there are no changes to these final
results of review from the preliminary results of review, where we
determined the existence of a country-wide dumping margin of 53.65
percent for this period of review (POR).
EFFECTIVE DATE: January 13, 1999.
FOR FURTHER INFORMATION CONTACT: Jack K. Dulberger or Wendy Frankel,
Antidumping/Countervailing Duty Enforcement Group II, Office Four,
Import Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW Washington, DC 20230, telephone (202) 482-5505
and 482-5849, respectively.
SUPPLEMENTARY INFORMATION:
The Applicable Statute
Unless otherwise indicated, all citations to the Tariff Act of
1930, as amended (the Act), are references to the provisions effective
January 1, 1995, the effective date of the amendments made to the Act
by the Uruguay Round Agreements Act (URAA). In addition, unless
otherwise indicated, all citations to the Department's regulations are
to the regulations set forth at 19 CFR part 351, 62 FR 27296 (May 19,
1997).
Period of Review
The POR is December 1, 1996 through November 30, 1997.
Scope of the Review
The products covered by this review are certain cased pencils of
any shape or dimension which are writing and/or drawing instruments
that feature cores of graphite or other materials encased in wood and/
or man-made materials, whether or not decorated and whether or not
tipped (e.g., with erasers, etc.) in any fashion, and either sharpened
or unsharpened. The pencils subject to this review are classified under
subheading 9609.10.00 of the Harmonized Tariff Schedule of the United
States (HTSUS). Specifically excluded from the scope of this order are
mechanical pencils, cosmetic pencils, pens, non-case crayons (wax),
pastels, charcoals, and chalks. Although the HTSUS subheading is
provided for convenience and customs purposes, our written description
of the scope of this review is dispositive.
Background
The antidumping duty order on pencils from the People's Republic of
China (PRC) was published on December 28, 1994 (59 FR 66909). On
September 11, 1998, the Department published in the Federal Register
the preliminary results of its review of this order for the POR
December 1, 1996 through November 30, 1997, (see 63 FR 48697)
(Preliminary Results). In the Preliminary Results, we rescinded the
review as to the companies which reported that they had no shipments of
subject merchandise during the POR (i.e., China First Pencil Company,
Ltd. (China First) and Guangdong Provincial Stationery & Sporting Goods
Import and Export Corporation (Guangdong)).
With respect to these companies, we confirmed, by conducting a data
query of the U.S. Customs Service (Customs) database, (see Preliminary
Results at 48698), that the only subject merchandise exported by the
exporters China First and Guangdong, respectively, to the United States
during the POR was merchandise excluded from the order (i.e.,
merchandise manufactured by the factories which received zero margins
in the less-than-fair-value (LTFV) investigation).1
[[Page 2172]]
Therefore, these final results apply only to the PRC-wide entity, which
includes the remaining respondents in this review that did not reply to
our questionnaire and demonstrate that they are entitled to a rate
separate from the PRC entity. In response to an opportunity to comment
on our preliminary results, the petitioners submitted one comment on
October 13, 1998. We received no other comments from respondents or
other interested parties.
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\1\ China First exports of merchandise produced by China First
itself were originally excluded from this order. However, in
litigation brought to challenge the Notice of Final Determination of
Sales at Less Than Fair Value: Certain Cased Pencils from the
People's Republic of China, 59 FR 55625 (November 8, 1994), the
Department issued a remand determination which was subsequently
affirmed by the U.S. Court of International Trade (CIT). See Writing
Instrument Manufacturers Ass'n Pencil Section, et al., v. United
States, 984 F.Supp. 629 (CIT 1997) (Writing Instrument
Manufacturers). In this remand determination, the Department
determined, among other things, that merchandise exported and
produced by China First was, in fact, sold at less than fair value.
Therefore, as we stated in the Preliminary Results, (see Preliminary
Results at 48698, footnote 1), for entries of merchandise exported
and produced by China First and entered on or after November 23,
1997, there has been suspension of liquidation pending final and
conclusive disposition of the remand determination. See also the
Department's Notice of Court Decision: Certain Cased Pencils from
the People's Republic of China, 62 FR 65243 (December 11, 1997).
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Analysis of Comment Received
Comment
Petitioners assert that the Department's proposal to use the
recalculated petition rate as the facts available (FA) is
inappropriate. Petitioners argue that agency practice and the
applicable statutory provisions require that the FA rate be both
reliable and relevant. According to petitioners, the recalculated
petition rate applied by the Department in the preliminary results
fails to meet the reliability requirement because it is based on legal
error.
According to the petitioners, in calculating the revised petition
rate, the Department erred in failing to exclude data regarding certain
U.S. wood prices which were untimely submitted, with the result that
the recalculation of the ``petition rate'' was based on a fundamental
procedural flaw, thus rendering the exporter-specific rates and the
``PRC rate,'' which were premised on such recalculation, unreliable.
In the litigation arising from the LTFV investigation, the
petitioners have alleged this error, among others, in an appeal
currently pending in the U.S. Court of Appeals for the Federal Circuit.
The petitioners further contend that if they obtain a favorable
decision in this appeal, the recalculated ``PRC rate'' would be found
by the court to be in error and thus render the Department's use of
such rate illegal, in accordance with the ruling of D&L Supply Co. v.
United States, 113 F.3d 1220 (Fed. Cir. 1997) (D&L Supply), which
states ``that it is improper for Commerce to continue to use, as the
BIA [best information available] rate, an antidumping duty rate that
has been vacated as erroneous.''
Department's Position
We disagree with petitioners that the newly recalculated petition
rate is an inappropriate basis for FA in this case. Where the
Department must rely on FA because a respondent failed to cooperate to
the best of its ability in responding to a request for information,
section 776(b) of the Act authorizes the Department to make an
inference adverse to the interests of that respondent in choosing FA.
Section 776(b) of the Act also authorizes the Department to use as
adverse FA information derived from the petition, the final
determination in the investigation, a previous administrative review,
or other information placed on the record. Because information from
prior proceedings constitutes secondary information, section 776(c) of
the Act provides that the Department shall, to the extent practicable,
corroborate that secondary information from independent sources
reasonably at its disposal. See also, Statement of Administrative
Action (SAA) (H. Doc. 316, 103d Cong., 2nd Sess. 870), providing that
``corroborate'' means that the Department will satisfy itself that the
secondary information to be used has probative value. The SAA, at page
870, clarifies that the petition is ``secondary information.''
The Department, as indicated in the preliminary results of review,
has decided to use the petition in the LTFV investigation as the basis
for adverse FA. The Department ``recalculated'' the petition rate for
the first time during the LTFV investigation. Later, in litigation
arising out of that investigation, we requested that the CIT remand to
us two issues for further consideration: (1) Basswood prices; and (2)
valuation of slats and logs. In performing this remand, the Department
revised certain calculations; these revisions led to a change in the
recalculated petition rate (from 44.66 percent to 53.65 percent). This
second recalculation of the petition rate was then affirmed by the CIT
in Writing Instrument Manufacturers. We have therefore used this second
recalculation petition rate as the basis of FA, rather than the
original petition rate or the petition rate as adjusted by the
Department in making its final LTFV determination. This decision is in
accordance with the ruling by the U.S. Court of Appeals for the Federal
Circuit in D&L Supply, which states that it is inappropriate to use as
FA a rate determined to be inaccurate. See D&L Supply, 113 F.3d at
1222. We have ignored rates found to be inaccurate and have used a rate
that has been affirmed by the CIT. Thus, contrary to petitioners'
argument, our selection of FA is appropriate.
We have determined that there is no evidence on the record of this
case which would cause us to question the reliability of the newly
recalculated petition rate. Petitioners' claims against this rate,
which are based on evidence which is contained in the administrative
record of the LTFV investigation, are not properly before the
Department in this segment of the proceeding.
Final Results of the Review
Based on our analysis of this comment, we have determined that no
changes to the preliminary results are warranted for purposes of these
final results, and a margin of 53.65 percent exists for the PRC entity
for the period December 1, 1996 through November 30, 1997. This rate
applies to all exports of pencils from the PRC other than those
produced and exported by China First (because China First's exports
produced by China First were excluded from the order), those produced
by Three Star and exported by Guangdong (because Three Star's exports
produced by Guangdong were also excluded from the order), and those
exported by Shanghai Foreign Trade Corporation (SFTC), an exporter
which was previously determined to be entitled to a separate rate. The
weighted-average dumping margin for the period December 1, 1996,
through November 30, 1997 is as follows:
------------------------------------------------------------------------
Weighted average
Manufacturer/producer/exporter margin percent
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PRC Rate........................................... 53.65
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Customs shall assess antidumping duties on all appropriate entries.
The Department will issue appraisement instructions concerning the
respondent directly to Customs. Furthermore, the following deposit
requirements will be effective for all shipments of the subject
merchandise entered, or withdrawn from warehouse, for consumption on or
after the publication date of these final results of administrative
review, as provided for by section 751(a)(1) of the Act: (1) The cash
deposit rate for all Chinese exporters (including China First (with
respect to merchandise produced by anyone other than China First) and
Guangdong (with respect to merchandise produced by anyone other than
Three Star)), except for SFTC, will
[[Page 2173]]
be the rate indicated above; (2) for merchandise exported by SFTC, the
cash deposit rate will continue to be the rate published in the final
LTFV determination; and (3) for non-PRC exporters of subject
merchandise from the PRC, the cash deposit rate will be the rate of
their suppliers. These deposit requirements, when imposed, shall remain
in effect until publication of the final results of the next
administrative review.
Upon completion of this review, we will direct Customs to assess an
ad valorem rate of 53.65 percent against the entered value of each
entry of subject merchandise during the POR for all firms except those
firms excluded from the order or entitled to a separate rate.
Notification to Interested Parties
This notice serves as a final reminder to importers of their
responsibility under section 19 CFR 351.402(f) of the Department's
regulations to file a certificate regarding the reimbursement of
antidumping duties prior to liquidation of the relevant entries during
this POR. 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 notice also serves as a reminder to parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 353.34(d). Timely written notification of
the return, destruction, or conversion to judicial protective order of
APO materials is hereby requested. Failure to comply with the
regulations and the terms of the APO is a sanctionable violation.
This administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. section 1675(a)(1)) and 19 CFR
351.221.
Dated: January 5, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-694 Filed 1-12-99; 8:45 am]
BILLING CODE 3510-DS-P
