E8-20752. Carbazole Violet Pigment 23 from India: Preliminary Results of Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

In response to a request from an interested party, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on carbazole violet pigment 23 from India. The review covers two manufacturers/exporters, Alpanil Industries and Pidilite Industries Limited. The period of review is December 1, 2006, through November 30, 2007. We have preliminarily determined that Alpanil Industries and Pidilite Industries Limited made sales below normal value. We invite interested parties to comment on these preliminary results. Parties who submit comments in this review are requested to submit with each argument a statement of each issue and a brief summary of the argument.

EFFECTIVE DATE:

September 8, 2008.

FOR FURTHER INFORMATION CONTACT:

Yang Jin Chun or Hermes Pinilla, AD/CVD Operations, Office 5, Import Administration, International Trade Administration, U.S. Department of Commerce, 14^th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On December 29, 2004, we published in the Federal Register the antidumping duty order on carbazole violet pigment 23 (CVP 23) from India. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Carbazole Violet Pigment 23 From India, 69 FR 77988 (December 29, 2004) (Antidumping Duty Order). On December 3, 2007, we published in the Federal Register a notice of opportunity to request an administrative review of the antidumping duty order on CVP 23 from India. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review, 72 FR 67889 (December 3, 2007). On December 31, 2007, pursuant to section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), Nation Ford Chemical Company and Sun Chemical Corporation, the petitioners in this proceeding, requested an administrative review of the antidumping duty order on CVP 23 from India produced and/or exported by Alpanil Industries (Alpanil) and Pidilite Industries Limited (Pidilite). On January 28, 2008, in accordance with section 751(a) of the Act and 19 CFR 351.221(c)(1)(i), we published a notice of initiation of administrative review of this order. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 73 FR 4829 (January 28, 2008). The administrative review covers the period December 1, 2006, through November 30, 2007. We are conducting this administrative review in accordance with section 751 of the Act.

Scope of the Order

The merchandise subject to the order is CVP 23 identified as Color Index No. 51319 and Chemical Abstract No. 6358-30-1, with the chemical name of diindolo [3,2-b:3 ,2 -m]¹ triphenodioxazine, 8,18-dichloro-5, 15-diethyl-5, 15-dihydro-, and molecular formula of C34H22Cl2N4O2. The subject merchandise includes the crude pigment in any form (e.g., dry powder, paste, wet cake) and finished pigment in the form of presscake and dry color. Pigment dispersions in any form (e.g., pigment dispersed in oleoresins, flammable solvents, water) are not included within the scope of the order. The merchandise subject to the order is classifiable under subheading 3204.17.90.40 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheading is provided for convenience and customs purposes, the written description of the scope of the order is dispositive.

Use of Adverse Facts Available

For the reasons discussed below, we determine that the use of adverse facts available is appropriate for the preliminary results with respect to Alpanil and Pidilite.

A. Use of Facts Available

Section 776(a)(2) of the Act provides that, if an interested party withholds information requested by the administering authority, fails to provide such information by the deadlines for submission of the information and in the form or manner requested, significantly impedes a proceeding under this title, or provides such information but the information cannot be verified as provided in section 782(i) of the Act, the administering authority shall use facts otherwise available in reaching the applicable determination.

On February 21, 2008, the Department transmitted its questionnaire to Alpanil and Pidilite via Federal Express. We confirmed that Alpanil and Pidilite signed for and received the questionnaire on February 25, 2008. The due date for the questionnaire response was March 31, 2008, for both respondents. On March 27, 2008, we received a request from Pidilite for an extension of the due date for the questionnaire response. We granted Pidilite's extension request in part and extended the due date for the questionnaire response to April 21, 2008. Although Pidilite received the letter granting the extension on April 4, 2008, it did not file its response by the due date.

On April 4, 2008, we received a request from Alpanil for an extension of the due date for the questionnaire response. Because Alpanil filed an extension request in an untimely manner, we did not grant Alpanil's request for the extension of the due date for the questionnaire response.

Because Alpanil and Pidilite did not provide their responses to the Department's questionnaire, Alpanil and Pidilite failed to provide any information to the Department within the meaning of section 776(a)(2) of the Act. As a result, the Department is unable to calculate the margins for Alpanil and Pidilite and, therefore, must rely entirely on facts available.

B. Application of Adverse Inferences for Facts Available

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 an inference adverse to the interests of that party in selecting the facts otherwise available. In addition, the Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. 103-316, Vol. 1, 103d Cong. (1994) (SAA), establishes that the Department may employ an adverse inference “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See SAA at 870. It also instructs the Department to consider, in employing adverse inferences, “the extent to which a party may benefit from its own lack of cooperation.” Id.

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). We find that, by failing completely to respond to our questionnaire, i.e., withholding requested information, Alpanil and Pidilite failed to cooperate to the best of their abilities. Therefore, we find it appropriate to use an inference that is adverse to these companies' interests in selecting from among the facts otherwise available. By doing so, we ensure that these companies will not obtain a more favorable rate by failing to cooperate than had they cooperated fully.

C. Selection of Information Used as Facts Available

Where the Department applies an adverse facts-available rate because a respondent failed to cooperate by not acting to the best of its ability to comply with a request for information, section 776(b) of the Act authorizes the Department to rely on information derived from the petition, a final determination, a previous administrative review, or other information placed on the record. See also 19 CFR 351.308(c) and the SAA at 870. The petition rate is 147.59 percent. See the November 21, 2003, petition for initiation of an antidumping duty investigation on CVP 23 from India, et al., at 21, unchanged in the December 3, 2003, amendment to the petition. Because we were not able to corroborate the petition rate based on the results of examination in previous segments of the proceeding, we have selected 66.59 percent as the adverse facts-available dumping margin. This is the highest calculated margin for a company in this proceeding; we calculated this margin for Pidilite in the investigation. See Antidumping Duty Order, 69 FR at 77989. This rate is sufficiently high as to reasonably ensure that Alpanil and Pidilite do not obtain a more favorable result by failing to cooperate.

Section 776(c) of the Act provides that, when the Department relies on secondary information as facts available, it must corroborate, to the extent practicable, that information from independent sources that are reasonably at its disposal. The SAA clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. See SAA at 870. The SAA also states that independent sources used to corroborate may include, for example, published price lists, official import statistics, and customs data as well as information obtained from interested parties during the particular proceeding. Id.

To corroborate secondary information, to the extent practicable, the Department normally examines the reliability and relevance of the information to be used. Unlike other types of information such as input costs or selling expenses, however, there are no independent sources for calculated dumping margins. The only source for margins is administrative determinations. Thus, with respect to an administrative review, if the Department chooses as facts available a calculated dumping margin from a prior segment of the proceeding, it is not necessary to question the reliability of the margin for that time period. See Antifriction Bearings and Parts Thereof from France, et al.: Preliminary Results of Antidumping Duty Administrative Reviews, Partial Rescission of Administrative Reviews, Notice of Intent to Rescind Administrative Reviews, and Notice of Intent to Revoke Order in Part, 69 FR 5949, 5953 (February 9, 2004), unchanged in Antifriction Bearings and Parts Thereof from France, et al.: Final Results of Antidumping Duty Administrative Reviews, Rescission of Administrative Reviews in Part, and Determination To Revoke Order in Part, 69 FR 55574, 55576-77 (September 15, 2004).

With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. For example, in Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (Feb. 22, 1996), the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin. Similarly, the Department does not apply a margin that has been discredited or judicially invalidated. See D & L Supply Co. v. United States, 113 F.3d 1220, 1221 (CAFC 1997).

None of these unusual circumstances is present here. Moreover, there is no information on the record of this review that demonstrates that 66.59 percent is not an appropriate adverse facts-available rate for Alpanil and Pidilite. Therefore, we consider the dumping margin of 66.59 percent, which is a margin percentage we determined in the less-than-fair-value investigation, relevant for use as adverse facts available for this review. Because we are making an adverse inference with regard to Alpanil and Pidilite, we find that the rate of 66.59 percent is a reasonable indication of the margins that Alpanil and Pidilite would have received on their U.S. transactions had they responded to our request for information. We find that use of the rate of 66.59 percent as adverse facts available is sufficiently high to ensure that Alpanil and Pidilite do not benefit from failing to cooperate in our review by refusing to respond to our questionnaire. See Certain Cut-to-Length Carbon-Quality Steel Plate Products from the Republic of Korea: Final Results of Antidumping Duty Administrative Review and Rescission of Administrative Review in Part, 73 FR 15132, 15133 (March 21, 2008).

Adjustment for Export Subsidies

For Pidilite in the original investigation, we subtracted the portion of the countervailing duty rate attributable to export subsidies (17.02 percent) from the final dumping margin of 66.59 percent in order to calculate the cash-deposit rate of 49.57 percent. See Antidumping Duty Order. Since the publication of the Antidumping Duty Order we have not conducted an administrative review of the countervailing duty order on CVP 23 from India. See Carbazole Violet Pigment 23 from India: Notice of Rescission of Countervailing Duty Administrative Review, 72 FR 15113 (March 30, 2007), and Carbazole Violet Pigment 23 from India: Rescission of Countervailing Duty Administrative Review, 73 FR 44704 (July 31, 2008). Therefore, the portion of the countervailing duty rate attributable to export subsidies currently in effect for Pidilite is 17.02 percent. Further, imports from both Alpanil and Pidilite during the review period were subject to countervailing duties to offset export subsidies of 17.02 percent or more. Because the adverse facts-available rate we selected for this review is the margin we calculated for Pidilite in the investigation, we have adjusted the dumping margin to ensure that, in accordance with section 772(c)(1)(C) of the Act, we do not collect duties attributable to export subsidies twice.

Preliminary Results of the Review

As a result of our review, we preliminarily determine that the weighted-average dumping margins for CVP 23 from India for the period December 1, 2006, through November 30, 2007, are as follows:

Company	Margin (percent)	Rate Adjusted for Export Subsidies
Alpanil	66.59	49.57
Pidilite	66.59	49.57

Comments

We will disclose the draft liquidation instructions to parties to this review within five days of the date of publication of this notice. Case briefs from interested parties may be submitted not later than 30 days after the date of publication of this notice of preliminary results of review. Rebuttal briefs from interested parties, limited to the issues raised in the case briefs, may be submitted not later than five days after the time limit for filing the case briefs or comments.

Any interested party may request a hearing within 30 days of the date of publication of this notice. Interested parties who wish to request a hearing, or to participate in a hearing if a hearing is requested, must submit a written request to the Assistant Secretary for Import Administration within 30 days of the date of publication of this notice. Requests should contain the following: (1) the party's name, address, and telephone number; (2) the number of participants; and (3) a list of issues to be discussed.

Issues raised in the hearing will be limited to those raised in the case and rebuttal briefs. Any hearing, if requested, will be held two days after the scheduled date for submission of rebuttal briefs. Parties who submit case briefs or rebuttal briefs in this review are requested to submit with each argument a statement of the issue, a summary of the arguments not exceeding five pages, and a table of statutes, regulations, and cases cited.

The Department will issue the final results of this administrative review, including the results of its analysis of issues raised in any such written briefs or at the hearing, if held, not later than 120 days after the date of publication of this notice.

Assessment Rates

The Department will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries. We intend to issue appropriate assessment instructions directly to CBP 15 days after publication of the final results of review. We will instruct CBP to assess the antidumping liability for all shipments of CVP 23 from India produced and/or exported by Alpanil or Pidilite and entered, or withdrawn from warehouse, for consumption during the period of review. We will instruct CBP to assess antidumping duties at the adjusted rate of 49.57 percent if CBP has collected the appropriate countervailing duties on the same entry. We will instruct CBP to assess antidumping duties at the unadjusted rate of 66.59 percent if the appropriate countervailing duties are not collected by CBP.

Cash-Deposit Requirements

The following deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of CVP 23 from India entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash-deposit rates for Alpanil and Pidilite will be the rates established in the final results of this review; (2) if the exporter is not a firm covered in this review, a previous review, or the less-than-fair-value investigation but the manufacturer is, the cash-deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; (3) if neither the exporter nor the manufacturer has its own rate, the cash-deposit rate will be 27.48 percent, the all-others rate published in Antidumping Duty Order, 69 FR at 77989. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importer

This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Department's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

These preliminary results of administrative review are issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.

Dated: September 2, 2008.

David M. Spooner,

Assistant Secretary for Import Administration.

Footnotes

1.  The bracketed section of the product description, [3,2-b:3 ,2 -m], is not business-proprietary information. In this case, the brackets are simply part of the chemical nomenclature. See Antidumping Duty Order.