00-16106. Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Expandable Polystyrene Resins From Indonesia

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

EFFECTIVE DATE:

June 26, 2000.

FOR FURTHER INFORMATION CONTACT:

Charles Riggle at [phone] or David Layton at [phone], Import Administration, Room 1870, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230.

The Applicable Statute and Regulations

Unless otherwise indicated, all citations to the statute are references to the provisions effective January 1, 1995, the effective date of the amendments made to the Tariff Act of 1930 (the Act) by the Uruguay Round Agreements Act (URAA). In addition, unless otherwise indicated, all citations to the Department of Commerce regulations refer to the regulations codified at 19 CFR part 351 (April 1999).

Preliminary Determination

We preliminarily determine that certain expandable polystyrene resins from Indonesia are being sold, or are likely to be sold, in the United States at less than fair value (LTFV), as provided in section 733 of the Act. The estimated margins of sales at LTFV are shown in the Suspension of Liquidation section of this notice.

Case History

On November 22, 1999, the Department of Commerce (the Department) received petitions on certain expandable polystyrene resins (EPS) from Indonesia and the Republic of Korea (Korea) filed in proper form by BASF Corporation, Huntsman Expandable Polymers Company LC, Nova Chemicals Inc., and Styrochem U.S., Ltd., (collectively the petitioners). On December 1 and 3, 1999, the Department received amendments to the petitions.^[1]

On December 13, 1999, the Department initiated antidumping investigations of EPS from Indonesia and Korea. See Initiation of Antidumping Duty Investigations: Certain Expandable Polystyrene Resins from Indonesia and the Republic of Korea, 64 FR 71112 (December 20, 1999) (Initiation Notice). Since the initiation of this investigation, the following events have occurred:

On January 7, 2000, the United States International Trade Commission (the ITC) preliminarily determined that there is a reasonable indication that imports of the subject merchandise are materially injuring the U.S. industry. See Certain Expandable Polystyrene Resins from Indonesia and Korea, 65 FR 2429 (January 14, 2000).

On January 13, 2000, the Department selected PT Risjad Brasali Styrindo (Brasali), the only known Indonesian producer/exporter of the subject merchandise, as the mandatory respondent in this investigation. See Memorandum to Gary Taverman: Selection of Respondents, dated January 13, 2000. On January 31, 2000, the Department issued its antidumping questionnaire to Brasali. On February 16, 2000, Brasali notified the Department that it would not respond to the Department's questionnaire.

On April 13, 2000, the Department published a Federal Register notice postponing the deadline for the preliminary determination until June 20, 2000. See Notice of Postponement of Preliminary Antidumping Duty Determinations: Certain Expandable Polystyrene Resins from Indonesia and the Republic of Korea, 65 FR 19872 (April 13, 2000).

Period of Investigation

The period of investigation (POI) is October 1, 1998, through September 30, 1999. This period corresponds to the four most recent fiscal quarters prior to the month of the filing of the petition (i.e., December 1999).

Scope of Investigation

The scope of this investigation includes certain expandable polystyrene resins in primary forms; namely, raw material or resin manufactured in the form of polystyrene beads, whether of regular (shape) type or modified (block) type, regardless of specification, having a weighted-average molecular weight of between 160,000 and 260,000, containing from 3 to 7 percent blowing agents, and having bead sizes ranging from 0.4 mm to 3 mm.

Specifically excluded from the scope of these investigations are off-grade, off-specification expandable polystyrene resins.

The covered merchandise is found in the Harmonized Tariff Schedule of the United States (HTSUS) subheading 3903.11.00.00. Although this HTSUS subheading is provided for convenience and customs purposes, the written description of the merchandise is dispositive.

Facts Available

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 section 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 subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination. In this case, as stated above, on February 16, 2000, Brasali informed us that it would not answer the Department's antidumping questionnaire. Because Brasali failed to respond to our questionnaire, pursuant to section 776(a)(2)(A) of the Act, we are required to employ facts otherwise available to determine the dumping margin for Brasali. Because Brasali has provided no information whatsoever, sections 782(d) and (e) of the Act are not applicable.

Section 776(b) of the Act provides that the Department may use an inference adverse to the interests of a party that has failed to cooperate by not acting to the best of its ability to comply with the Department's requests for information. See also Statement of Administrative Action accompanying the URAA, H.R. Rep. No. 103-316 at 870 (1994) (SAA). The statute and the SAA provide that such an adverse inference may be based on secondary information, including information drawn from the petition. Brasali's refusal to respond to the Department's antidumping questionnaire constitutes a failure to act to the best of its ability to comply with a request for information, within the meaning of section 776(b) of the Act. Accordingly, for purposes of the preliminary determination, the Department has determined that, in selecting among the facts otherwise available, an adverse inference is warranted with respect to Brasali.

Consistent with the Department's practice in investigations where the respondent refuses to participate by not answering the Department's questionnaire, as adverse facts available, we have determined to apply a margin based on the highest margin alleged in the petition. See, e.g., Notice of Preliminary Determination of Sales at Less Than Fair Value: Certain Cold-Rolled Flat Rolled Carbon Quality Steel Products from Argentina, Japan and Thailand, 64 FR 60410, 60414 (November 5, 1999); Notice of Preliminary Determination of Sales at Less Than Fair Value: Stainless Steel Wire Rod from Germany, 63 FR 10847 (March 5, 1998).

Section 776(c) of the Act provides that, when the Department relies upon “secondary information” in using facts otherwise available such as the petition rates, it must, to the extent practicable, corroborate that information from independent sources that are reasonably at the Department's 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 such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation (see SAA at 870).

We reviewed the adequacy and accuracy of the information in the petition during our pre-initiation analysis, to the extent appropriate information was available for this purpose. See Import Administration AD Investigation Initiation Checklist, dated December 13, 1999, for a discussion of the margin calculations in the petition. To corroborate the rate that we are applying as adverse facts available for purposes of the preliminary determination, we examined the basis of the rates contained in the petition. The petitioners based export price (EP) on the average unit value (AUV) of the merchandise as derived from the U.S. government's IM-145 data, which we were able to corroborate with the statistical source. Normal value (NV) was based upon prices for products which are identical to the products used as the basis for the EP. We corroborated the data used by petitioners to calculate NV in a telephone conference with the market research firm responsible for gathering the data. See Memorandum to the File, Telephone Conversation with Market Research Firm Regarding the Petition for the Imposition of Antidumping Duties, dated December 3, 1999. Our review of the EP and NV calculations indicated that the information in the petitions has probative value, given that certain information included in the margin calculations in the petition is from public sources concurrent, for the most part, with the POI (e.g., average unit values for U.S. sales). We did not receive any other information from the petitioners or other interested parties with regard to EP and NV and are aware of no other independent sources that would enable us to further corroborate the margin calculation in the petition. Accordingly, we find, for purposes of this preliminary determination, that this information is corroborated to the extent practicable, pursuant to section 776(c) of the Act.

All Others Rate

Section 735(c)(5)(B) of the Act provides that, where the estimated weighted-averaged dumping margins established for all exporters and producers individually investigated are zero or de minimis or are determined entirely under section 776 of the Act, the Department may use any reasonable method to establish the estimated all-others rate for exporters and producers not individually investigated. Our recent practice under these circumstances has been to assign, as the “all others” rate, the simple average of the margins in the petition. We have done so in this case. See, e.g., Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Plate in Coil from Canada, 64 FR 15457 (March 31, 1999); see also Notice of Final Determination of Sales at Less Than Fair Value: Stainless Steel Plate in Coil from Italy, 64 FR 15458, 15459 (March 21, 1999).

Suspension of Liquidation

For entries of EPS from Indonesia, we are directing the U.S. Customs Service to suspend liquidation of those entries that are entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. We are also instructing the Customs Service to require a cash deposit or the posting of a bond equal to the dumping margin, as indicated in the chart below. These instructions suspending liquidation will remain in effect until further notice.

Manufacturer/exporter	Margin (percent)
PT Risjad Brasali Styrindo	96.65
All Others	95.79

ITC Notification

In accordance with section 733(f) of the Act, we have notified the ITC of our determination. If our final antidumping determination is affirmative, the ITC will determine whether these imports are materially injuring, or threaten material injury to, the U.S. industry. The deadline for that ITC determination would be the later of 120 days after the date of this preliminary determination or 45 days after the date of our final determination.

Public Comment

Case briefs must be submitted no later than 30 days after the publication of this notice in the Federal Register. Rebuttal briefs must be filed within five business days after the deadline for submission of case briefs. A list of authorities used, a table of contents, and an executive summary of issues should accompany any briefs submitted to the Department. Executive summaries should be limited to five pages total, including footnotes.

Section 774 of the Act provides that the Department will hold a hearing to afford interested parties an opportunity to comment on arguments raised in case or rebuttal briefs, provided that such a hearing is requested by any interested party. If a request for a hearing is made in an investigation, the hearing will tentatively be held two days after the deadline for submission of the rebuttal briefs, at the U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, D.C. 20230. Parties should confirm by telephone the time, date, and place of the hearing 48 hours before the scheduled time.

Interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request within 30 days of the publication of this notice. Requests should specify the number of participants and provide a list of the issues to be discussed. Oral presentations will be limited to issues raised in the briefs.

If this investigation proceeds normally, we will make our final determination no later than 75 days after the date of this preliminary determination.

This determination is published pursuant to sections 733(d) and 777(i)(1) of the Act.

Dated: June 20, 2000.

Roland L. MacDonald,

Acting Assistant Secretary for Import Administration.

Footnotes

1.  The preliminary determination for EPS from Korea will be published in a separate Federal Register notice.