E8-22715. Certain Tissue Paper Products From the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

Final Determination

We determine that certain tissue paper products (“tissue paper”) produced by Vietnam Quijiang Paper Co., Ltd. (“Quijiang”) are circumventing the antidumping duty order on tissue paper from the People's Republic of China (“PRC”), as provided in section 781(b) of the Tariff Act of 1930, as amended (“the Act”). See Notice of Amended Final Determination of Sales at Less than Fair Value and Antidumping Duty Order: Certain Tissue Paper Products from the People's Republic of China, 70 FR 16223 (March 30, 2005) (“Order”).

DATES:

Effective Date: October 3, 2008.

FOR FURTHER INFORMATION CONTACT:

Julia Hancock, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On April 22, 2008, the Department of Commerce (“the Department”) published in the Federal Register the affirmative preliminary determination that certain tissue paper products (“tissue paper”) produced by Quijiang are circumventing the Order on tissue paper from the People's Republic of China (“PRC”), as provided in section 781(b) of the Act. See Certain Tissue Paper Products From the People's Republic of China: Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order and Extension of Final Determination, 73 FR 21580 (April 22, 2008) (“Preliminary Determination”). Additionally, the Department published in the Federal Register a correction to its preliminary determination of circumvention on May 23, 2008. See Certain Tissue Paper Products From the People's Republic of China: Correction to Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order, 73 FR 30053 (May 23, 2008) (“Correction to Preliminary Determination”).

On June 3, 2008, Petitioner ^[1] filed its case brief. Quijiang did not file a case brief, but on June 5, 2008, Quijiang filed its rebuttal brief. Additionally, on June 24, 2008, the Department extended the final determination by 60 days to September 19, 2008. See Letter to All Interested Parties from Catherine Bertrand, Program Manager, Re: Circumvention Inquiry on Certain Tissue Paper Products from the People's Republic of China: Extension of Final Determination, (June 24, 2008).

On August 19, 2008, Petitioner submitted comments regarding Quijiang's participation in the third administrative review of this Order, which contained new factual information. Although Petitioner's comments were untimely, on August 27, 2008, the Department issued a letter to interested parties notifying them that it was accepting Petitioner's August 19, 2008, submission, pursuant to 19 CFR 351.302(b) and inviting comments from Quijiang and other interested parties. No comments were submitted.

Scope of the Antidumping Duty Order

The tissue paper products subject to this order are cut-to-length sheets of tissue paper having a basis weight not exceeding 29 grams per square meter. Tissue paper products subject to this order may or may not be bleached, dye-colored, surface-colored, glazed, surface decorated or printed, sequined, crinkled, embossed, and/or die cut. The tissue paper subject to this order is in the form of cut-to-length sheets of tissue paper with a width equal to or greater than one-half (0.5) inch. Subject tissue paper may be flat or folded, and may be packaged by banding or wrapping with paper or film, by placing in plastic or film bags, and/or by placing in boxes for distribution and use by the ultimate consumer. Packages of tissue paper subject to this order may consist solely of tissue paper of one color and/or style, or may contain multiple colors and/or styles.

The merchandise subject to this order does not have specific classification numbers assigned to them under the Harmonized Tariff Schedule of the United States (“HTSUS”). Subject merchandise may be under one or more of several different subheadings, including: 4802.30; 4802.54; 4802.61; 4802.62; 4802.69; 4804.31.1000; 4804.31.2000; 4804.31.4020; 4804.31.4040; 4804.31.6000; 4804.39; 4805.91.1090; 4805.91.5000; 4805.91.7000; 4806.40; 4808.30; 4808.90; 4811.90; 4823.90; 4820.50.00; 4802.90.00; 4805.91.90; 9505.90.40. The tariff classifications are provided for convenience and customs purposes; however, the written description of the scope of this order is dispositive.^[2]

Excluded from the scope of this order are the following tissue paper products: (1) Tissue paper products that are coated in wax, paraffin, or polymers, of a kind used in floral and food service applications; (2) tissue paper products that have been perforated, embossed, or die-cut to the shape of a toilet seat, i.e., disposable sanitary covers for toilet seats; (3) toilet or facial tissue stock, towel or napkin stock, paper of a kind used for household or sanitary purposes, cellulose wadding, and webs of cellulose fibers (HTSUS 4803.00.20.00 and 4803.00.40.00).

Scope of the Circumvention Inquiry

The products covered by this inquiry are jumbo rolls of tissue paper that are exported from the PRC to the Socialist Republic of Vietnam (“Vietnam”) where they are converted, possibly dyed and/or printed, into tissue paper products, as described above in the “Scope of the Antidumping Duty Order” section. This inquiry only covers such products that are exported to the United States by Quijiang.

Statutory Provisions Regarding Circumvention

Section 781(b) of the Act provides that the Department may find circumvention of an antidumping duty order when merchandise of the same class or kind subject to the order is completed or assembled in a foreign country other than the country to which the order applies. In conducting circumvention inquiries under section 781(b) of the Act, the Department relies upon the following criteria: (A) Merchandise imported into the United States is of the same class or kind as any merchandise produced in a foreign country that is subject to an antidumping duty order; (B) before importation into the United States, such imported merchandise is completed or assembled in another foreign country from merchandise which is subject to the order or produced in the foreign country that is subject to the order; (C) the process of assembly or completion in the foreign country referred to in (B) is minor or insignificant; and (D) the value of the merchandise produced in the foreign country to which the antidumping duty order applies is a significant portion of the total value of the merchandise exported to the United States.

Section 781(b)(2) of the Act provides the criteria for determining whether the process of assembly or completion is minor or insignificant. These criteria are:

(a) The level of investment in the foreign country;

(b) The level of research and development in the foreign country;

(c) The nature of the production process in the foreign country;

(d) The extent of the production facilities in the foreign country; and

(e) Whether the value of the processing performed in the foreign country represents a small proportion of the value of the merchandise imported into the United States.

The Statement of Administrative Action (“SAA”) accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, at 893 (1994), provides some guidance with respect to these criteria. It explains that no single factor listed in section 781(b)(2) of the Act will be controlling. Accordingly, it is the Department's practice to evaluate each of the factors as they exist in the United States or foreign country depending on the particular circumvention scenario. Therefore, the importance of any one of the factors listed under section 781(b)(2) of the Act can vary from case to case depending on the particular circumstances unique to each circumvention inquiry.

In this circumvention inquiry, for the final determination, we continued to base our analysis on both qualitative and quantitative factors in determining whether the process of converting the jumbo rolls in Vietnam was minor or insignificant, in accordance with the criteria of section 781(b)(2) of the Act. This approach is consistent with our analysis in prior circumvention inquiries. See Anti-Circumvention Inquiry of the Antidumping and Countervailing Duty Orders on Certain Pasta From Italy: Affirmative Preliminary Determinations of Circumvention of Antidumping and Countervailing Duty Orders, 68 FR 46571 (August 6, 2003) (“Pasta Circumvention Prelim”) (unchanged in Pasta Circumvention Final, 68 FR 54888).

In making a determination whether to include merchandise assembled or completed in a foreign country within an order, section 781(b)(3) of the Act instructs us to take into account such factors as: (A) The pattern of trade, including sourcing patterns; (B) whether affiliation exists between the exporter of the merchandise and the person who uses the merchandise to assemble or complete in the foreign country the merchandise that is sold in the United States; and (C) whether imports into the foreign country of the merchandise described in section 781(b)(1)(B) have increased since the initiation of the original investigation. Each of these factors is examined below.

For the final determination, we have continued to use the information gathered from the questionnaire responses submitted by Quijiang and its PRC parent company, Guilin Qifeng Paper Co., Ltd. (“Guilin Qifeng”), for purposes of conducting both qualitative and quantitative analyses in accordance with the criteria enumerated in section 781(b) of the Act as outlined above.

Summary of Statutory Analysis

As discussed above, in order to make an affirmative final determination of circumvention, all the elements under sections 781(b)(1) of the Act must be satisfied, taking into account the factors under section 781(b)(2). In addition, section 781(b)(3) of the Act instructs the Department to consider, in determining whether to include merchandise assembled or completed in a foreign country within the scope of an order, such factors as: pattern of trade, affiliation, and whether imports into the foreign country of the merchandise described in section 781(b)(1)(B) have increased after the initiation of the investigation. Because no party submitted comments regarding our circumvention analysis, pursuant to section 781(b)(1) of the Act, we continue to find that the merchandise sold in the United States is within the same class or kind of merchandise that is subject to the Order and was completed or assembled in a third country. See Preliminary Determination, 73 FR at 21582. Additionally, because no party submitted comments regarding our circumvention analysis, pursuant to section 781(b)(2), we continue to find that the process of assembly of the PRC-origin jumbo rolls to cut-to-length tissue paper by Quijiang is minor and insignificant. Id., at 21582-85. Furthermore, because no party submitted comments regarding our circumvention analysis, in accordance with sections 781(b)(1)(D) and 781(b)(1)(E) of the Act, we continue to find that the value of the merchandise produced in the PRC is a significant portion of the total value of the merchandise exported to the United States, see id. at 21584-85, and that action is appropriate to prevent evasion of the Order. Thus, we continue to find affirmative evidence of circumvention in accordance with sections 781(b)(1) and (2) of the Act. Moreover, we continue to find the factors required by section 781(b)(3) of the Act indicate that there is circumvention of the Order. Consequently, our statutory analysis leads us to continue to find that during the period from July 2004 to July 2006, Quijiang circumvented the Order as a result of its exports to the United States of PRC-origin jumbo rolls converted to cut-to-length tissue paper in Vietnam, as discussed above.

Facts Available

Petitioner requested in its case brief that we apply total adverse facts available (“AFA”) to Quijiang for purposes of this final determination. Pursuant to section 776 of the Act, we find that the application of facts otherwise available is not warranted under sections 776(a)(1) or (2) of the Act because Quijiang submitted the requested information by the required deadlines, provided information in a timely manner and in the form or manner requested, and did not significantly impede this proceeding under the antidumping statute. Further, no verification took place of Quijiang's data because the Department chose not to conduct verification given the particular facts of this case, not because of any deficiency in Quijiang's responses. We disagree with Petitioner's contention that there is record evidence demonstrating that Quijiang's data is unreliable. In fact, we find that there is substantial evidence on the record demonstrating that Quijiang's statements and submitted data are reliable. Therefore, we find that, pursuant to sections 776(a)(1) and (2) of the Act, there is no basis for applying facts available, much less adverse facts available, to Quijiang for the final determination. For further discussion and greater detail on the Department's analysis on this issue, please see Comment 1 of the Memorandum to David M. Spooner, Assistant Secretary for Import Administration, from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, Subject: Issues and Decision Memorandum for the Final Determination of the Anticircumvention Inquiry of Certain Tissue Paper Products from the People's Republic of China (“PRC”) (“Issues and Decision Memo”).

Other Issues

All issues raised by the interested parties to which we have responded are listed in the Appendix to this notice and addressed in the Issues and Decision Memo, which is hereby adopted by this notice.

In its case brief, Petitioner raised an argument regarding the public ranging of the average value of the value added to the finished merchandise by Quijiang's processing. Because the publicly ranged average value is within ten percent of the actual figure, pursuant to section 351.304(c) of the Department's regulations, we find that we correctly ranged the average value of the value added to finished merchandise by Quijiang's processing. See Comment 2 of the Issues and Decision Memo.

Petitioner also argued in its case brief that the record evidence shows that Quijiang, contrary to its own declarations, has continued to import semi-completed tissue paper products from the PRC after July 2006. Petitioner therefore argued that the Department should cease its certification program and require suspension of liquidation of all Quijiang's imports of subject merchandise. However, we find that the only information on the record supporting Petitioner's claim is an affidavit from Petitioner's own market researcher. Absent import or other such documentation, we do not believe the substantial evidence on the record supports Petitioner's allegation that Quijiang has continued to import PRC-semi completed tissue paper products that were converted into finished merchandise and exported to the United States beyond July 2006. Accordingly, because Quijiang sourced jumbo rolls from a PRC supplier to produce tissue paper products, which were exported to the United States, we continue to find that circumvention occured between July 2004 and July 2006 in this final determination. With respect to Quijiang's current U.S. exports, we have determined that the certification program remains appropriate for Quijiang's exports to the United States of tissue paper products produced from Vietnamese-origin paper. For further discussion of this issue, please see Comments 1 and 3 of the Issues and Decision Memo.

Parties can find a complete discussion of the issues raised in this inquiry and corresponding recommendation in this public memorandum, which are on file in the Central Records Unit (“CRU”), Room 1117 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memo can be accessed directly on the internet at http://ia.ita.doc.gov/​. The paper copy and electronic version of the Issues and Decision Memo are identical in content.

Continuation of Suspension of Liquidation

In accordance with section 733(d) of the Act, the Department will continue to direct CBP to suspend liquidation and to require a cash deposit of estimated duties, at the PRC-wide rate of 112.64 percent, on all unliquidated entries of certain tissue paper products produced by Quijiang that were entered, or withdrawn from warehouse, for consumption, from on or after September 5, 2006, the date of initiation of the circumvention inquiry, with the exception described below.

For all entries of Quijiang's tissue paper products for which the U.S. importer submits a certification from Quijiang that the merchandise is non-subject, (i.e., of Vietnamese-origin and not produced using PRC-origin jumbo rolls), the Department will continue to direct CBP to liquidate those entries without regard to antidumping duties. For further discussion of this issue, please see Comment 2 of the Issues and Decision Memo. The Department will not request that CBP suspend liquidation, or require a cash deposit of estimated duties at the PRC-wide rate, for any entries of tissue paper accompanied by the certification in Appendix II of this notice. However, the Department will direct CBP to suspend liquidation and to require a cash deposit of estimated duties, at the PRC-wide rate of 112.64 percent, for any entries of tissue paper not accompanied by this certification in Appendix II of this notice.

Concurrent and Future Administrative Reviews

Because we have reached a final affirmative determination of circumvention, as stipulated in the Preliminary Determination, 73 FR at 21587, with respect to Quijiang, we are expanding the period of review for the third administrative review, initiated on April 25, 2008 date, back to September 5, 2006, the date of initiation of the circumvention inquiry, to include all of Quijiang's entries covered by this determination. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 73 FR 22337, (April 25, 2008). In concordance with this finding of circumvention, the review period of that segment of the proceeding will be expanded as of the date of issuance of this final determination with respect to Quijiang's entries. In accordance with the certifications provided to CBP by Quijiang, all certified entries are subject to verification by the Department, including those that entered into the United States during the expanded third administrative review. In conducting a review of these certified entries, the Department will examine all records Quijiang maintains in its normal course of business supporting its certifications that no PRC-origin jumbo rolls were used in the production of Vietnamese-origin tissue paper products. Consistent with the terms of the certifications submitted by Quijiang, if Quijiang elects not to participate in the administrative review or does not consent to verification of these certified entries, we will immediately revoke the certification program and instruct CBP to suspend liquidation and collect cash deposits at the PRC-wide rate of 112.64 percent on all of Quijiang's entries of tissue paper, regardless of country of origin.

Notice to Parties

This notice also serves as the only reminder to parties subject to the administrative protective orders (“APO”) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with section 351.305 of the Department's regulations. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

This affirmative final circumvention determination is published in accordance with section 781(b) of the Act and 19 CFR 351.225.

Dated: September 19, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Appendix I

Discussion of the Issues

Comment 1: Total Adverse Facts Available (“AFA”) for Quijiang

Comment 2: Clerical Error in Value-Added Calculation

Comment 3: Cash Deposits and Suspension of Liquidation

Appendix II

Certification of Vietnam Quijiang Paper Co., Ltd.

Certification to U.S. Customs and Border Protection

1. Vietnam Quijiang Paper Co., Ltd. (“Vietnam Quijiang”) hereby certifies that the certain tissue paper products being exported and subject to this certification were not produced from Chinese origin jumbo rolls.

2. By signing this certificate, Vietnam Quijiang also hereby agrees to maintain sufficient documentation supporting the above statement such as country of origin certificates for all jumbo rolls used to process the exported certain tissue paper products. Further, Vietnam Quijiang agrees to submit to verification of the underlying documentation supporting the above statement. Vietnam Quijiang agrees that failure to submit to verification of the documentation supporting these statements will result in immediate revocation of certification rights and that Vietnam Quijiang will be required to post a cash deposit equal to the China-wide entity rate on all entries of certain tissue paper products. In addition, if the Department of Commerce identifies any misrepresentation or inconsistencies regarding the certifications, Vietnam Quijiang recognizes that the matter may be reported to the U.S. Customs and Border Protection by the Department for possible enforcement action.

Signature:

Printed Name:

Title:

Footnotes

1.  Seaman Paper Company of Massachusetts, Inc. (“Petitioner ”).

2.  On January 30, 2007, at the direction of U.S. Customs and Border Protection (“CBP”), the Department added the following HTSUS classifications to the AD/CVD module for tissue paper: 4802.54.3100, 4802.54.6100, and 4823.90.6700. However, we note that the six-digit classifications for these numbers were already listed in the scope.