[Federal Register Volume 62, Number 172 (Friday, September 5, 1997)]
[Notices]
[Pages 46945-46947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23606]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-827]
Notice of Preliminary Results and Partial Rescission of
Antidumping Duty Administrative Review: Certain Cased Pencils From the
People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Commerce.
SUMMARY: On December 31, 1996, the Department of Commerce (the
Department) published a notice of initiation of an administrative
review of the antidumping duty order on certain cased pencils from the
People's Republic of China (PRC) covering the period of review of
December 1, 1995 through November 30, 1996.
The Department is now rescinding this review in part with respect
to respondents who had no shipments of the subject merchandise during
the period of review (POR) including Guangdong Provincial Stationery &
Sporting Goods Import and Export Corporation (Guangdong), and China
First Pencil Company, Ltd. (China First). We are basing our preliminary
results on ``facts available'' (FA) for those companies that did not
respond to our questionnaire.
EFFECTIVE DATE: September 5, 1997.
FOR FURTHER INFORMATION CONTACT:
Jack Dulberger or Irene Darzenta, 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 482-6320,
respectively.
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 353 (April 1997).
Supplementary Information:
Period of Review
The period of review (POR) is December 1, 1995 through November 30,
1996.
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 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 review 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 the review is dispositive.
Background
On December 28, 1994, we published an antidumping duty order (59 FR
66909) which stated that imports of the two producer/exporter
combinations identified in the LTFV investigation had margins of zero.
We stated in the antidumping duty order that we would exclude from the
order imports of subject merchandise that are sold by ``either China
First or Guangdong and manufactured by the producers whose factors
formed the basis for the zero margin'' (59 FR at 66910). Those
exporter/producer combinations were subsequently identified in the
order as China First/China First and Guangdong/Shanghai Three Star
Stationery Industry Corporation (Three Star).
In response to our notice of opportunity to request administrative
[[Page 46946]]
review for this second POR, the petitioner, the Writing Instrument
Manufacturers Association, Pencil Section (WIMA), requested, by letter
dated December 31, 1996, that the Department conduct an administrative
review of China First, Guangdong, and Three Star ``to determine whether
merchandise purportedly produced and exported by the excluded
combinations * * * was, in fact, produced or exported by a combination
of companies that are subject to the order.'' (See Letter from WIMA to
the Department, December 31, 1996 (WIMA Request Letter) at 2).
On January 17, 1997, the Department published a notice of
initiation of an administrative review of China First, Guangdong, Three
Star, and approximately 93 other potential producers/exporters named by
the petitioner in its review request covering the POR (62 FR 2647,
January 17, 1997; as amended by 62 FR 12793, March 18, 1997). On
February 27, 1997, we sent a questionnaire to the companies for which
the petitioner requested a review, including China First, Guangdong,
and Three Star, specifically stating that pencils produced and exported
by the excluded company combinations are not subject merchandise.
On March 13, 1997, 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 China
First to the Department (March 13, 1997); see also Letter from
Guangdong to the Department (March 13, 1997)). On March 26, 1997, the
petitioner opposed respondents' request, arguing, first, that the two
excluded exporters, China First and Guangdong, are only excluded from
the antidumping order to the extent that they export merchandise
produced by the companies whose factors formed the basis in the order
for the zero margin (here, China First and Three Star, respectively)
(see Letter from WIMA to the Department, March 26, 1997 at 2) and,
secondly, that the Department had considered and rejected respondents'
same arguments in the prior administrative review. (Id.) Respondents,
on March 31, 1997, repeated their previous requests that the Department
rescind the review. (See Letter China First to the Department (March
31, 1997); see also Letter from Guangdong to the Department (March 31,
1997)). At the same time, they responded to the Department's February
27, 1997 questionnaire by stating that they had ``sold no subject
merchandise to the United States'' during the POR. (Id. at 2). 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, and denied their request to terminate this review with
respect to these companies in their entirety. (For a complete
discussion of the Department's decision, see Decision Memorandum on
Request for Termination from Case Analyst to Holly Kuga, August 12,
1997).
Rescission
Subsequent to our decision not to terminate this review with
respect to China First and Guangdong, we determined that during the
POR, China First did not export pencils to the United States that were
manufactured by producers other than China First, and that Guangdong
did not export pencils to the United States that were manufactured by
producers other than Three Star. In order to make our determination, we
contacted the U.S. Customs Service (Customs) by electronic mail on July
16, 1997. We later received a letter from Customs, on which we based
our determination, confirming 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 Letter from Joan E. Sebenaler, Customs, to Tom
Futtner, the Department (August 19, 1997) (Sebenaler Letter); see also
Decision Memorandum on China First and Guangdong from Case Analyst to
Holly Kuga, August 19, 1997.) Therefore, we rescind this review with
respect to China First and Guangdong. See 19 CFR 351.213(d)(3), 62 FR
27296 (May 19, 1997) (this citation to the new regulations, although
not governing this review, is provided to explain the Department's
current practice).
In addition, Ideal Consolidators, Ltd. and Ideal Ocean Lines,
(together, Ideal), identified themselves as freight forwarders and
reported that they did not manufacture or make shipments of subject
merchandise during the POR. As above, we contacted Customs by
electronic mail and received written confirmation from Customs that
Ideal made no shipments of subject merchandise during the POR. (See
Sebenaler Letter; see also Decision Memorandum on Ideal Consolidators,
Ltd. and Ideal Ocean Lines from Case Analyst to Holly Kuga, August 19,
1997). Therefore, we also rescind this review with respect to Ideal.
Facts Available
Section 776(a)(1) of the Act mandates that the Department use facts
available (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 those identified
above, 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, 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 proceedings 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.''
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, of 53.65 percent. This is consistent with our
decision in the amended final results of the first administrative
review of the order on certain cased pencils from the PRC. 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) (Amended Final). Further, we determined this rate to be
corroborated based on our analysis in the previous segment of the
proceeding (Amended Final, 62 FR at 36492). There
[[Page 46947]]
is no new information in the record of the instant proceeding to lead
us to re-examine this issue.
As noted above, not all exporters of certain cased pencils from the
PRC responded to our questionnaire. Accordingly, we are applying a
single dumping rate--the PRC-wide rate established in the Amended
Final--to all exporters in the PRC (other than China First and
Guangdong, as discussed above, and Shanghai Foreign Trade Corporation
(SFTC), an exporter which was previously determined to be entitled to a
separate rate but for which the petitioner did not request an
administrative review), based on our presumption that those respondents
who failed to respond and all other exporters who have not qualified
for a separate rate constitute a single enterprise, and are under
common control by the PRC government. (See, e.g., Final Determination
of Sales at Less Than Fair Value; Persulfates from the People's
Republic of China, 61 FR 68232, 68234 (December 27, 1996)). The
weighted-average dumping margin is as follows:
------------------------------------------------------------------------
Weighted-average margin
Manufacturer/producer/exporter percentage
------------------------------------------------------------------------
PRC-wide Rate................................. 53.65
------------------------------------------------------------------------
Parties to this proceeding may request disclosure within 5 days of
the date of publication of this notice. Any interested party may
request a hearing within 10 days of publication. 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 37 days after the date of
publication. See section 353.38 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 (with respect to
exports of merchandise produced by China First), Guangdong (with
respect to exports of merchandise produced by Three Star), and SFTC,
will be the rate established in the final results of this review; and
(2) for non-PRC exporters of subject merchandise from the PRC, the cash
deposit rate will be the rate of their suppliers (i.e., the PRC-wide
rate). 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 353.26 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 occured 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 353.22.
Dated: August 27, 1997.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 97-23606 Filed 9-4-97; 8:45 am]
BILLING CODE 3510-DS-M
