[Federal Register Volume 63, Number 176 (Friday, September 11, 1998)]
[Notices]
[Pages 48697-48699]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24487]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-827]
Certain Cased Pencils From the People's Republic of China: Notice
of Preliminary Results and Partial Rescission of Antidumping Duty
Administrative Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results and partial rescission of
antidumping duty administrative review.
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SUMMARY: On January 26, 1998, the Department of Commerce published a
notice of initiation of administrative review of the antidumping duty
order on certain cased pencils from the People's Republic of China
covering the period December 1, 1996 through November 30, 1997.
We are now rescinding this review in part with respect to
respondents who had no shipments of the subject merchandise during the
period of review. We are basing our preliminary results on ``facts
available'' for those companies that did not respond to our
questionnaire. If these preliminary results are adopted in our final
results of administrative review, we will instruct the U.S. Customs
Service to assess antidumping duties on entries during the period.
Interested parties are invited to comment on these preliminary
results. Parties who submit arguments in this proceeding are requested
to submit with the argument: (1) A statement of the issue; and (2) a
brief summary of the argument.
EFFECTIVE DATE: September 11, 1998.
FOR FURTHER INFORMATION CONTACT: Jack Dulberger or Wendy Frankel,
Antidumping/Countervailing Duty Enforcement Group II, Office Four,
Import Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 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 of Commerce's (the
Department) regulations are to the regulations set forth at 19 CFR part
351, 62 FR 27296 (May 19, 1997).
Period of Review
The period of review (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
On December 28, 1994, we published an antidumping duty order (see
Antidumping Duty Order: Certain Cased Pencils from the People's
Republic of China, 59 FR 66909 (December 28, 1994)) (Pencils Order)
which stated that imports of the two producer/exporter combinations
identified in the less-than-fair-value (LTFV) investigation had margins
of zero. We stated in the Pencils Order that we would exclude from the
order imports of subject merchandise that are sold by China First
Pencil Company, Ltd. (China First) or Guangdong Provincial Stationery &
Sporting Goods Import and Export Corporation (Guangdong) ``and
manufactured by the producers whose factors formed the basis for the
zero margin'' (59 FR at 66910). Those exporter/producer combinations
were identified in the order as: (1) China First/China First, and (2)
Guangdong/Shanghai Three Star Stationery Industry Corporation (Three
Star).
In response to our notice of opportunity to request administrative
review for this third POR, the petitioner, the Writing Instrument
Manufacturers Association, Pencil Section (WIMA), requested, by letter
dated December 29, 1997, that the Department conduct an administrative
review of China First, Guangdong, Three Star, and others. (See Letter
from WIMA to the Department, December 29, 1997 (WIMA Request Letter) at
2).
On January 26, 1998, the Department published a notice of
initiation of an administrative review of China First, Guangdong, Three
Star, and 38 other potential producers/exporters named by the
petitioner in its review request (63 FR 3702). On February 13, 1998, we
sent a questionnaire to each of the companies for which the petitioner
requested a review, including China First, Guangdong, and Three Star.
We also sent a questionnaire to the Ministry of Foreign Trade and
Economic Cooperation requesting its assistance in transmitting the
questionnaire to companies for which we lacked complete addresses.
Several of the questionnaires were returned to the Department by the
carrier service as undeliverable due to incorrect or insufficient
addresses. After soliciting assistance from the U.S. Embassy in
Beijing, we re-sent those questionnaires in April and May 1998 to the
proper addresses.
With respect to China First, pencils both produced and exported by
China First were originally excluded from this order. See Pencils Order
at 66910. However, pursuant to litigation brought to challenge the
Department's final determination in the original investigation (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) (Pencils Final Determination)), 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 is, in fact, covered by the order. On
November 13, 1997, the CIT
[[Page 48698]]
affirmed the Department's remand determination. On December 11, 1997,
the Department published its notice of court decision. See Notice of
Court Decision: Certain Cased Pencils from the People's Republic of
China, 62 FR 65243 (December 11, 1997) (Notice of Court
Decision).1
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\1\ In its Notice of Court Decision, the Department stated:
On November 13, 1997, the CIT affirmed the Department's remand
determination. In its decision in Timken Co. v. United States, 893
F.2d 337 (Fed. Cir. 1990) (Timken), the United States Court of
Appeals for the Federal Circuit held that, pursuant to 19 U.S.C.
section 1516a (e), the Department must publish a notice of a court
decision which is not ``in harmony'' with a Department
determination, and must suspend liquidation of entries pending
``conclusive'' court decision. The CIT's decision in Writing
Instrument Manufacturers on November 13, 1997, constitutes a
decision not in harmony with the Department's final affirmative
determination. Publication of this notice fulfills the Timken
requirement. Accordingly, the Department will continue to suspend
liquidation pending the expiration of the period of appeal, or, if
appealed, until a ``conclusive'' court decision. In addition,
pursuant to the affirmed remand results, China First is no longer
excluded from the antidumping duty order issued in this case
(Antidumping Duty Order: Certain Cased Pencils from the People's
Republic of China, 59 FR 66909 (December 28, 1994)). Therefore,
liquidation shall be suspended on entries, or withdrawals from
warehouse, for consumption of the subject merchandise from China
First effective ten days from the date of the decision in Writing
Instrument Manufacturers. Absent an appeal, or, if appealed, upon a
``conclusive'' court decision affirming the CIT's opinion, the
Department will amend the final LTFV determination and the
antidumping duty order on certain cased pencils from the PRC to
reflect the Department's remand results.
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On March 13, 1998, China First and Guangdong responded to the
Department's February 13, 1998 questionnaire. Guangdong stated that it
had ``sold no subject merchandise to the United States'' during the
POR. See Letter from Guangdong to the Department (March 13, 1998) at 2.
China First stated that it had ``sold no subject merchandise
manufactured by any other producer to the United States,'' (i.e., a
producer other than China First), during the POR. See Letter from China
First to the Department (March 13, 1998) (China First Letter) at 4. At
the same time, China First and Guangdong requested that the Department
terminate its review of these companies, arguing that they were
excluded from the antidumping duty order. See Letter from Guangdong to
the Department (March 13, 1998) and Letter from China First to the
Department (March 13, 1998). We received no comment on the respondents'
request from the petitioner.
After due consideration, we decided that it was appropriate to
continue our review of China First and Guangdong, concerning producers
other than those specified in the order as excluded exporter/producer
combinations, in accordance with our practice in previous reviews of
this order. See Notice of Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review: Certain Cased Pencils from the
People's Republic of China, 62 FR 46945, 46946 (September 5, 1997).
We note that China First also stated in its March 13, 1998 letter
that it made no entries of China First-produced merchandise between
November 23, 1997 and November 30, 1997. See China First Letter at 3.
As we stated in our Notice of Court Decision, we instructed the U.S.
Customs Service (Customs) to commence suspension of liquidation of any
such merchandise effective November 23, 1997 pending issuance of a
final and conclusive court decision on this matter. When there is a
final and conclusive court decision, the Department will publish an
amended final determination and an amended antidumping duty order, as
appropriate. Because the Department has not yet published an amended
order with respect to entries of merchandise both produced and exported
by China First, the Department currently lacks authority to conduct an
administrative review of any such entries.
On April 14, 1998, we sent a questionnaire to Jinan Pencil Factory
(Jinan), a company named in WIMA's request (see WIMA Request Letter),
setting original deadlines of May 8, 1998 for its Section A
questionnaire response and May 29, 1998 for the remainder of its
response. Jinan later requested, and we granted, several extensions of
the deadline for submitting its response; ultimately, we granted Jinan
an extension to June 30, 1998 for submitting its entire response. We
granted these requests for extensions of the response deadlines in an
attempt to accommodate Jinan, because of the communication
complications we encountered with Jinan and its status as a first-time,
pro se respondent, among other factors. (See Memorandum from Pencils
Team Analyst to Holly A. Kuga, Senior Director, AD/CVD Enforcement,
Group II, June 9, 1998; see also Letter from Holly A. Kuga, Senior
Director, AD/CVD Enforcement, Group II, to Jinan Pencil Factory, June
18, 1998 (June 18, 1998 letter)). We expressly informed Jinan that June
30, 1998 would be its ``absolute final deadline,'' due to the statutory
time constraints for issuing these preliminary results of review,
delays we had earlier encountered in sending questionnaires to
respondents in the PRC, and the previous time extensions granted to
Jinan. See June 18, 1998 letter. We also specified that any information
Jinan submitted after that date would be considered untimely and could
result in our applying facts available (FA) for the preliminary results
of this review for Jinan. Id. Because we received no questionnaire
response from Jinan, we have determined that we must resort to FA for
Jinan pursuant to section 776(a) of the Act. (See ``Facts Available''
section, below).
Rescission
In response to respondents' assertions of having sold no subject
merchandise that entered the United States during the POR, we sought to
determine whether, during the POR, China First exported pencils that
entered the United States during the POR that were manufactured by
producers other than China First, and whether Guangdong exported
pencils that entered the United States during the POR that were
manufactured by producers other than Three Star.
In order to make our determination, we conducted a query of the
Customs database and found no information that contradicted the claim
made by respondents that no subject merchandise manufactured by
producers other than China First or Three Star was shipped by the
exporters China First and Guangdong, respectively, to the United States
during the POR. (See Decision Memorandum Regarding Whether China First
and Guangdong Should be Considered Non-Shippers in this Review from
Case Analyst to Holly Kuga, dated September 1, 1998). Based on this
information, we have determined to rescind this review with respect to
China First and Guangdong. See 19 CFR 351.213(d)(3).
Facts Available
Section 776(a)(1) of the Act mandates that the Department use FA if
necessary information is not available on the record of an antidumping
proceeding. In addition, section 776(a)(2) of the Act mandates that the
Department use FA where an interested party or any other person: (A)
withholds information requested by the Department; (B) fails to provide
requested information by the requested date or in the form and manner
requested; (C) significantly impedes an antidumping proceeding; or (D)
provides information that cannot be verified. In this case, all of the
named respondents, other than China First and Guangdong, failed to
respond to the Department's questionnaire. Where the Department must
base the entire dumping margin for a respondent in an administrative
review on FA because that respondent failed to cooperate by
[[Page 48699]]
not acting to the best of its ability, section 776(b) authorizes the
Department to use an inference adverse to the interests of that
respondent in choosing FA. Section 776(b) 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. Information from
prior segments of a proceeding constitutes secondary information.
Section 776(c) of the Act provides that the Department shall, to the
extent practicable, corroborate secondary information from independent
sources reasonably at its disposal. The Statement of Administrative
Action (SAA) (H. Doc. 316, 103d Cong., 2nd Sess. 870) provides 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.''
As noted above, various exporters, including Jinan, of certain
cased pencils from the PRC failed to respond to our questionnaire (see
``Background'' section of this notice). Therefore, we considered these
exporters to have failed to cooperate by not acting to the best of
their ability to comply with the Department's requests for information.
Therefore, we preliminarily decided to use adverse FA with respect to
Jinan and all other non-responding exporters, in accordance with
section 776(b) of the Act. See Memorandum from Pencils Team Analyst to
Holly A. Kuga, Senior Director, AD/CVD Enforcement, Group II, July 18,
1998 (July 18, 1998 Memorandum) at 3. Further, these exporters,
together with all other exporters that have not established they are
entitled to a separate rate, are presumed to be under common government
control and, therefore, receive a single PRC-wide rate. Consequently,
we are basing the PRC-wide rate on adverse FA, in accordance with
section 776(b) of the Act.
For the preliminary results of this review, we determine it
appropriate to use, as adverse FA, the petition rate (which was the
basis for the PRC-wide rate in the LTFV investigation), as amended by
our August 1995 remand determination, of 53.65 percent. This is
consistent with our decision in the amended final results of the first
administrative review and the final results of the second
administrative review of this order. See Certain Cased Pencils From the
People's Republic of China; Amended Final Results of Antidumping Duty
Administrative Review, 62 FR 36491 (July 8, 1997) (Pencils Amended
Final); see also Certain Cased Pencils From the People's Republic of
China; Final Results of Antidumping Duty Administrative Review, 63 FR
779 (January 7, 1998). Further, we determined this rate to be
corroborated based on our analysis in the previous segment of the
proceeding (see Pencils Amended Final, 62 FR at 36492). There is no new
information in the record of the instant proceeding to lead us to re-
examine this issue.
Accordingly, we are applying a single dumping rate--the PRC-wide
rate established in the Pencils Amended Final--to all exporters in the
PRC, except for China First and Guangdong, as discussed above, and
Shanghai Foreign Trade Corporation, an exporter which was previously
determined to be entitled to a separate rate and for which the
petitioner did not request an administrative review.
The weighted-average dumping margin is as follows:
------------------------------------------------------------------------
Weighted-
Manufacturer/producer/exporter average margin
percentage
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PRC-wide Rate........................................... 53.65
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Parties to this proceeding may request disclosure within 5 days of
the date of publication of this notice (see section 351.224(b) of the
Department's regulations). In accordance with section 351.310(c) of the
Department's regulations, any interested party may request a hearing
within 30 days of publication of this notice. Any hearing, if
requested, will be held 44 days after the publication of this notice,
or the first workday thereafter. Interested parties may submit case
briefs within 30 days of the date of publication of this notice.
Rebuttal briefs, which must be limited to issues raised in the case
briefs, may be filed not later than 35 days after the date of
publication. See sections 351.309 and 351.310 of the Department's
regulations. The Department will publish a notice of final results of
this administrative review, which will include the results of its
analysis of issues raised in any such comments, not later than 120 days
after the date of publication of these preliminary results.
The Department shall determine, and Customs shall assess,
antidumping duties on all appropriate entries. We intend to issue
assessment instructions to Customs for the exporters subject to this
review based on the dumping rate stated above. The Department will
issue appraisement instructions directly to Customs. Further, the
following deposit requirements will be effective upon publication of
the final results of this administrative review for all shipments of
certain cased pencils from the PRC entered, or withdrawn from
warehouse, for consumption on or after the publication date, as
provided for by section 751(a)(1) of the Act: (1) the cash deposit rate
for all Chinese exporters, except for China First, Guangdong, and SFTC,
will be the rate established in the final results of this review; (2)
for merchandise exported by SFTC, 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),
the cash deposit rate will continue to be the most recent rate
published in the determination or final results for that firm; 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.
This notice serves as a preliminary reminder to importers of their
responsibility under section 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 administrative review and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. section 1675(a)(1)), section
777(i) of the Act (19 U.S.C. section 1677f(i)), and 19 CFR 351.221.
Dated: September 1, 1998.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. 98-24487 Filed 9-10-98; 8:45 am]
BILLING CODE 3510-DS-P
