E9-14359. 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 exported to the United States from Thailand by Sunlake Décor Co., Ltd. (Sunlake)¹ are made from jumbo rolls and/or cut sheets of tissue paper produced in the People's Republic of China (PRC), and are circumventing the antidumping duty order on certain tissue paper products from the 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).

EFFECTIVE DATE:

June 19, 2009.

FOR FURTHER INFORMATION CONTACT:

Gemal Brangman or Brian Smith, AD/CVD Operations, Office 2, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On April 30, 2009, the Department of Commerce (the Department) issued its affirmative preliminary determination that certain tissue paper products produced in, and exported from, Thailand by Sunlake using PRC-origin jumbo rolls and/or cut sheets of tissue paper are circumventing the antidumping duty order on tissue paper from the PRC, as provided in section 781(b) of the Act. See Certain Tissue Paper from the People's Republic of China: Affirmative Preliminary Determination of Circumvention of the Antidumping Duty Order, 74 FR 20915 (May 6, 2009) (Preliminary Determination).

On May 1, 2009, the Department notified the U.S. International Trade Commission (ITC) of its affirmative preliminary determination of circumvention of the antidumping duty order on certain tissue paper products from the PRC by Sunlake, in accordance with section 781(e) of the Act. On May 27, 2009, the ITC notified the Department that it would not be requesting consultations concerning the Department's preliminary circumvention finding, pursuant to section 781(e) of the Act and 19 CFR 351.225(f)(7)(i)(B).

After receipt of notification from the ITC and consistent with the Preliminary Determination, on May 29, 2009, we instructed U.S. Customs and Border Protection (CBP) to suspend liquidation and to require a cash deposit of estimated duties, at the rate of 112.64 percent, on all unliquidated entries of certain tissue paper products produced in and exported from Thailand by Sunlake that were entered or withdrawn from warehouse, for consumption on or after October 21, 2008, the date of initiation of the circumvention inquiry.

We invited interested parties to comment on the Preliminary Determination. Comments were due June 5, 2009; however, no interested party submitted comments. We have conducted this inquiry in accordance with section 781(b) of the Act.

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 tissue paper products, as described above in the “Scope of the Antidumping Duty Order” section, which are produced in Thailand from PRC-origin jumbo rolls and/or cut sheets of tissue paper, and exported to the United States from Thailand by Sunlake.

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; (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; and (E) the administering authority determines that action is appropriate to prevent evasion of such order.

The Department's questionnaire issued to Sunlake was designed to elicit information 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. This approach is consistent with our analyses in prior circumvention inquiries. See, e.g., Certain Tissue Paper Products From the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 73 FR 57591 (October 3, 2008); and Circumvention and Scope Inquiries on the Antidumping Duty Order on Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: Partial Affirmative Final Determination of Circumvention of the Antidumping Duty Order, Partial Final Termination of Circumvention Inquiry and Final Rescission of Scope Inquiry, 71 FR 38608 (July 7, 2006). Sunlake failed to provide any of the information requested in the Department's questionnaire.

Final Determination

Section 776(a)(2) of the 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.

Furthermore, section 776(b) of the Act provides that, 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 that 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 accompanying the Uruguay Round Agreements Act, H. Rep. No. 103-316, Vol. 1, at 870 (1994). Furthermore, “affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.” See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997). See also Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).

As discussed in detail in the Preliminary Determination, 74 FR at 20916-20918, Sunlake refused to respond to the Department's questionnaire despite being given ample opportunity to do so by the Department. Thus, pursuant to sections 776(a)(2)(A), (B), and (C) of the Act, the Department found that the use of facts available was appropriate for Sunlake in this circumvention proceeding. Furthermore, the Department found that Sunlake had not acted to the best of its ability in this circumvention proceeding within the meaning of section 776(b) of the Act. Accordingly, we preliminarily applied adverse facts available (AFA) to Sunlake. Specifically, we preliminarily considered all of Sunlake's exports of tissue paper products from Thailand to be of PRC origin and concluded that Sunlake is circumventing the Order. We also assigned Sunlake a margin of 112.64 percent, which is the highest corroborated rate on the record in any completed segment of the tissue paper proceeding.

No party filed comments objecting to the Department's Preliminary Determination and no further information has come to the Department's attention warranting reconsideration of that determination. Therefore, we continue to find that the application of facts available is necessary pursuant to section 776(a) of the Act, and that Sunlake has failed to act to the best of its ability in this circumvention proceeding, warranting the use of an adverse inference under section 776(b) of the Act. Thus, as AFA, we continue to determine that all of Sunlake's exports of tissue paper products from Thailand to the United States are, in fact, of PRC origin, and that Sunlake is circumventing the Order.

Accordingly, for this final determination, we are applying to Sunlake a margin of 112.64 percent, as AFA. This margin is the highest rate on the record in any completed segment of this proceeding (i.e., the LTFV investigation, and the first and second administrative reviews) and it has been corroborated in accordance with section 776(c) of the Act, as discussed in detail in the Preliminary Determination, 74 FR at 20918.

Suspension of Liquidation and Cash Deposit Requirement

In accordance with section 19 CFR 351.225(l), the Department will direct CBP to continue to suspend liquidation and to require a cash deposit of estimated duties, at the rate of 112.64 percent, on all unliquidated entries of certain tissue paper products produced in and exported from Thailand by Sunlake that were entered, or withdrawn from warehouse, for consumption on or after October 21, 2008, the date of initiation of the circumvention inquiry.

Notification to Interested Parties

This notice also serves as the only reminder to parties subject to administrative protective order (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 regulation 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: June 12, 2009.

Ronald K. Lorentzen,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  Sunlake is a company located in Thailand.

2.  On January 30, 2007, at the direction of 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.