2010-26194. Certain Tissue Paper Products From the People's Republic of China: Final Results of the 2008-2009 Antidumping Duty Administrative Review

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On April 13, 2010, the Department of Commerce (the Department) published the preliminary results of the 2008-2009 administrative review of the antidumping duty order on certain tissue paper products from the People's Republic of China (PRC) covering the period March 1, 2008, through February 28, 2009. This administrative review covers two exporters of the subject merchandise: Max Fortune Industrial Limited (Max Fortune) and Seaman Paper Asia Co., Ltd. (Seaman Paper Asia). We invited interested parties to comment on the preliminary results.

Based on our analysis of the comments received, we have made changes to the margin calculations. The weighted-average dumping margins are listed below in the section entitled “Final Results of Review.”

DATES:

Effective Date: October 18, 2010.

FOR FURTHER INFORMATION CONTACT:

Brian Smith or Gemal Brangman, 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 13, 2010, the Department published the preliminary results of this administrative review. See Certain Tissue Paper Products From the People's Republic of China: Preliminary Results of the 2008-2009 Administrative Review, 75 FR 18812 (April 13, 2010) (Preliminary Results). In response to the interested parties' requests, we extended the deadlines for submitting case and rebuttal briefs for consideration in the final results of this administrative review.

On May 13, 2010, Max Fortune requested a hearing.

On May 28, 2010, Max Fortune requested the public disclosure of certain information designated as business proprietary that was included in the petitioner's ^[1] September 15, 2009, submissions and examined by the Department during verification.^[2] On June 8, 2010, the Department informed Max Fortune that it was unable to grant its May 28, 2010, request because doing so would reveal the source of the information for which the Department granted the petitioner business proprietary treatment.

On June 25, 2010, Max Fortune submitted its case brief. Neither Seaman Paper Asia nor the petitioner submitted case briefs. On July 1, 2010, the petitioner submitted its rebuttal brief.

On July 14, 2010, the Department notified the parties that as a result of the recent decision in Dorbest Limited et al. v. United States, No. 2009-1257, -1266 (Fed. Cir. May 14, 2010) (Dorbest), issued by the United States Court of Appeals for the Federal Circuit (CAFC), the Department would be reconsidering its valuation of the labor wage rate in this review. The Department placed export data on the record of the review and gave parties a specified period of time to comment on the narrow issue of the labor wage value and the methodology proposed to value labor for margin calculation purposes in light of the CAFC's decision in Dorbest.^[3] On July 15, 2010, the Department corrected certain wage rate data placed on the record on July 14, 2010.^[4]

On July 20, 2010, Max Fortune withdrew its May 13, 2010, request for a hearing. No other party in this review requested a hearing.

On July 22, 2010, Max Fortune submitted comments on the wage rate data and proposed methodology the Department placed on the record on July 14, 2010.

On July 23, 2010, the Department held meetings with Max Fortune's and the petitioner's counsels to discuss the issues raised in Max Fortune's case brief.^[5]

On August 9, 2010, the Department placed on the record an additional clarification/correction of the surrogate wage rate data contained in the Department's July 14, 2010, memorandum.^[6]

On August 9, 2010, the Department postponed the final results of this review until October 11, 2010.^[7]  See Notice of Extension of Time Limit for Final Results of Antidumping Duty Administrative Review: Certain Tissue Paper Products From the People's Republic of China, 75 FR 49888 (August 16, 2010).

On August 16, 2010, Max Fortune submitted comments and additional data regarding the wage rate issue in response to the Department's August 9, 2010, memorandum.

On September 21 and 24, 2010, the Department held additional meetings with Max Fortune's and the petitioner's counsels, respectively, to discuss the issues raised in Max Fortune's case brief.^[8]

We have conducted this administrative review in accordance with sections 751(a) and 777(i)(1) of the Tariff Act of 1930, as amended (the Act), 19 CFR 351.213, and 19 CFR 351.221.

Period of Review

The period of review (POR) is March 1, 2008, through February 28, 2009.

Scope of the Order

The tissue paper products covered by 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, 4802.50.00, 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.^[9]

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).

Separate Rates

In our Preliminary Results at 75 FR 18814, we determined that both Max Fortune and Seaman Paper Asia met the criteria for the application of a separate rate, as both companies are wholly foreign-owned companies registered and located in Hong Kong. We have not received any information since the issuance of the Preliminary Results that provides a basis for the reconsideration of this determination. Therefore, the Department continues to find that Max Fortune and Seaman Paper Asia both meet the criteria for a separate rate for purposes of the final results of this review.

Application of Adverse Facts Available

In the Preliminary Results, we applied total adverse facts available (AFA) to Max Fortune pursuant to section 776(a)(2)(A), (C), and (D) and 776(b) of the Act, because we determined based on our findings at verification and our analysis of the record information, that we could not rely upon the data submitted by Max Fortune to calculate an accurate dumping margin.

As explained in the Preliminary Results at 75 FR 18814-18815, the petitioner placed on the record a substantial amount of information, supporting its allegations that, among other things, Max Fortune did not report: (1) Multiple affiliates involved in the production and/or sale of the subject merchandise exported to the United States during the POR; and (2) multiple unaffiliated suppliers of raw materials and converting services involved in the production of the subject merchandise exported to the United States during the POR.^[10] The petitioner obtained the information supporting its allegations from a foreign market researcher (FMR), and the company that furnished this data to the FMR later became a part of this proceeding in order to provide the Department the ability to conduct verification of these data. In response to the allegations made by the petitioner, Max Fortune asserted that its PRC affiliate, Max Fortune (FZ) Paper Products Co., Ltd. Fuzhou (Max Fortune Fuzhou), produced all of the tissue paper it sold to the United States during the POR.^[11]

After conducting verification of the data submitted on the record by Max Fortune and the other company referred to above, we found that for certain U.S. sales reported by Max Fortune in its U.S. sales listing which we selected for examination at verification, Max Fortune Fuzhou was not the only producer of the tissue paper sold in those transactions, contrary to Max Fortune's representations throughout this review.^[12] As a result, we concluded that Max Fortune withheld critical information (i.e., the identities of additional tissue paper suppliers and/or processors associated with the tissue paper it sold to the United States during the POR, and their respective factors of production (FOP) data), and in so doing, significantly impeded this proceeding and precluded the Department from being able to calculate an accurate dumping margin for Max Fortune in this review based on its reported data. We also stated that based upon our verification of the two companies, our experience in conducting such verifications, the number and level of detail of documents supplied by the other company, and our careful analysis of the record, we could not conclude that the documents supplied by Max Fortune were the actual documents used in the transactions at issue.

Therefore, we were unable to verify any of Max Fortune's FOP data. Given the nature and extent of the information in Max Fortune's possession which Max Fortune withheld from disclosure (i.e., the actual documentation associated with its U.S. sales transactions), we concluded that Max Fortune failed to cooperate by not acting to the best of its ability to comply with the Department's request for information in this review. Consequently, pursuant to sections 776(a)(2)(A), (C), and (D) and 776(b) of the Act, we found it appropriate to apply total AFA to Max Fortune in the Preliminary Results.^[13] Consistent with the statute, court precedent, and numerous other cases cited in the Preliminary Results at 75 FR 18815, as AFA, we assigned Max Fortune the highest rate on the record of any segment of this proceeding, i.e., 112.64 percent. We determined in the Preliminary Results that this rate was fully corroborated, consistent with section 776(c) of the Act. See Preliminary Results at 75 FR 18815.

For these final results of review, Max Fortune provided comments in its case brief disputing the Department's preliminary AFA decision, and the petitioner provided rebuttal comments. In its case brief, Max Fortune raises questions regarding the accuracy and reliability of the data provided by the other company which the Department verified and used as the basis for determining that the documents supplied by Max Fortune were not the actual documents used in the transactions at issue. Furthermore, Max Fortune contends that the Department's verification of its data was flawless and, therefore, cannot support the application of AFA to Max Fortune, particularly in light of the irregularities and unexplained inconsistencies which Max Fortune alleges are present in the data and accounting records provided by the other company which served as the basis for the Department's preliminary decision not to rely on Max Fortune's data.

Upon consideration of the arguments of the parties and further review of the entire administrative record, including the other company`s extensive and detailed data which Max Fortune alleges are not reliable, we continue to find it appropriate to apply total AFA to Max Fortune. Although much of the data Max Fortune provided to the Department was aggregate and general, Max Fortune is correct in its claim that nothing in its response, when viewed in isolation and on its face, made it evident that Max Fortune supplied the Department with documents not used in its transactions. However, at verification, for example, when Department officials requested more specific labor records, Max Fortune was unable to supply such data.^[14] This was consistent with other record information—Max Fortune provided adequate general documentation but could not give more specific information on request. The other company, however, unlike Max Fortune, supplied the Department with an extensive amount of detailed information.^[15] Thus, after reviewing the record evidence as a whole, we find that it impugns the veracity of the data Max Fortune presented to the Department, both in its questionnaire responses and at verification for its reported U.S. sales made during the POR. For complete discussion, see Comment 1 of the Memorandum to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, from Susan H. Kuhbach, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, entitled “Issues and Decision Memorandum for the Final Results of the 2008-2009 Administrative Review of Certain Tissue Paper Products from the People's Republic of China (PRC)” (Issues and Decision Memorandum) accompanying this Federal Register notice; and Memorandum from the Team to The File, entitled, “Analysis of Data-Specific Items Raised in the Case Brief Submitted by Max Fortune Industrial Limited (Max Fortune HK) and Max Fortune (FZ) Paper Products Co., Ltd. (Max Fortune Fuzhou) (collectively Max Fortune),” dated October 12, 2010.

Section 776(a)(2) of the Act states that the Department may use “facts available” if, inter alia, an interested party (A) withholds information that has been requested by the Department; (C) significantly impedes a proceeding under the antidumping statute; or (D) if information is supplied by a company that cannot be “verified as provided in section 782(i).” All of these provisions apply in this case, as Max Fortune's misrepresentations call into question the veracity of the FOP data Max Fortune submitted in this review.

As noted above, the Department has concluded that Max Fortune mischaracterized and withheld information from the Department that was fundamental and material to the Department's dumping margin analysis. For multiple U.S. sales transactions in its U.S. sales listing, Max Fortune should have reported FOP data for tissue paper supplied and/or processed by unaffiliated companies. Instead, Max Fortune misled the Department by claiming it produced and processed all of the tissue paper included in its U.S. sales listing. Therefore, its actions significantly impeded the Department's ability to conduct this administrative review. Further, its actions have led us to conclude that the information and records provided by its PRC affiliated producer, Max Fortune Fuzhou, at verification are not reliable. Accordingly, pursuant to section 776(a)(2)(A), (C), and (D) of the Act, we have concluded that the application of facts available is warranted in this case with respect to Max Fortune.

Section 776(b) of the Act states that if the Department concludes that a party has failed to cooperate by not acting to the best of its ability to comply with a request for information, it may “use an inference that is adverse to the interests of that party.” It is the Department's practice to make 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 Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316 at 870 (1994) (SAA) at 870. In this case, Max Fortune has provided documents on the record that were not the actual documents used with respect to the U.S. sales transactions at issue. Accordingly, Max Fortune did not act to the best of its ability when it provided the Department with incorrect and misleading characterizations with respect to its agreement with other companies and the tissue paper included in its reported U.S. sales transactions, and Max Fortune Fuzhou's sourcing from other PRC tissue paper suppliers of some of that tissue paper.

Consequently, pursuant to sections 776(a)(2)(A), (C), and (D) and section 776(b) of the Act, we find it appropriate to apply total AFA to Max Fortune in this review. To calculate an antidumping duty margin for Max Fortune, even based on partial adverse facts available, would effectively reward Max Fortune's efforts to create an administrative record that cannot be verified and otherwise does not reflect the actual chain of production and processing of the U.S. sales transaction at issue. As a result, the Department has no confidence in any information supplied by Max Fortune for dumping margin calculation purposes. Thus, the application of total AFA is appropriate in this case.

Section 776(c) of the Act provides that when the Department selects from among the facts otherwise available and relies on “secondary information,” the Department shall, to the extent practicable, corroborate that information from independent sources reasonably at the Department's disposal. To corroborate the information, the Department seeks to determine that the information used has probative value. See SAA at 870. The Department has determined that to have probative value, information must be reliable and relevant. See Certain Tissue Paper Products from the People's Republic of China: Final Results and Final Rescission, In Part, of Antidumping Duty Administrative Review, 72 FR 58642 (October 16, 2007), and accompanying Issues and Decision Memorandum at Comment 6.

For the final results, as AFA, we have continued to assign Max Fortune the highest rate on the record for any segment of this proceeding—i.e., 112.64 percent. This rate represents the highest rate from the petition in the less-than-fair-value investigation segment of this proceeding. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Tissue Paper Products from the People's Republic of China, 70 FR 7475 (February 14, 2005).

We find that the 112.64 percent rate is both reliable and relevant. See Preliminary Results at 75 FR 18815, and Issues and Decision Memorandum at Comment 1. Thus, we have concluded it has probative value. As a result, we determine that the 112.64 percent rate is corroborated to the extent practicable for the purposes of this administrative review, in accordance with section 776(c) of the Act, and may reasonably be applied as AFA to the exports of the subject merchandise by Max Fortune.

Analysis of Comments Received

All issues raised in the case and rebuttal briefs by the parties and to which we have responded are addressed in the Issues and Decision Memorandum, which is hereby adopted by this notice. A list of the issues raised, all of which are in the Issues and Decision Memorandum, is attached to this notice as Appendix I. Parties can find a complete discussion of all issues raised in the briefs and the corresponding recommendations in this public memorandum, which is on file in the Central Records Unit (CRU), room 7046 of the Department of Commerce. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Web at http://trade.gov/​ia. The paper copy and electronic version of the Issues and Decision Memorandum are identical in content.

Changes From the Preliminary Results

Based on the information submitted and our analysis of the comments received, we made one change to the margin calculations for Seaman Paper Asia. Specifically, we recalculated the surrogate wage rate used to value Seaman Paper Asia's labor costs. See Comment 2 of the Issues and Decision Memorandum for further discussion.

Final Results of Review

We determine that the following antidumping duty margins exist in these final results for the period March 1, 2008, through February 28, 2009:

Certain Tissue Paper Products From the PRC

Individually reviewed exporter 2008-2009 administrative review	Weighted-average percent margin (percent)
Seaman Paper Asia Company Ltd	0.00
Max Fortune Industrial Ltd	112.64

Assessment

Upon issuance of the final results, the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review. The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review.

In accordance with 19 CFR 351.212(b)(1), for Seaman Paper Asia, we calculated an importer-specific ad valorem duty assessment rate based on the ratio of the total amount of dumping duties calculated for the examined sale to the total entered value of the examined sale because Seaman Paper Asia reported entered value information. Where the importer-specific ad valorem rate is zero or de minimis, we will instruct CBP to liquidate appropriate entries without regard to antidumping duties. See 19 CFR 351.106(c)(2).

With respect to Max Fortune, we will instruct CBP to liquidate appropriate entries at the PRC-wide rate of 112.64 percent.

Cash Deposit Requirements

The following cash deposit requirements will be effective upon publication of the notice of final results of the administrative review for all shipments of certain tissue paper products from the PRC 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) A cash deposit rate of 0.00 percent will be required for certain tissue paper products from the PRC exported by Seaman Paper Asia; (2) a cash deposit rate of 112.64 percent will be required for certain tissue paper products from the PRC exported by Max Fortune; (3) for previously reviewed or investigated companies not listed above that have separate rates, the cash deposit rate will continue to be the company-specific rate published for the most recent period; (4) for all other PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash deposit rate will be PRC-wide rate of 112.64 percent; and (5) for all non-PRC exporters of subject merchandise, the cash deposit rate will be the rate applicable to the PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.

Notification to Importers

This notice also serves as the final 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 Secretary's presumption that reimbursement of antidumping duties occurred and in the subsequent assessment of double antidumping duties.

Notification to Interested Parties

This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

We are issuing and publishing these final results of review in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).

Dated: October 12, 2010.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Appendix—List of Issues

Comment 1: Application of Adverse Facts Available to Max Fortune

Comment 2: Appropriate Surrogate Labor Rate

Footnotes

1.  The petitioner is the Seaman Paper Company of Massachusetts, Inc.

2.  Max Fortune also requested in its May 28, 2010, letter that the Department grant an additional extension of the deadline to submit case and rebuttal briefs and extend the final results deadline.

3.  See the Department's memorandum to the file entitled, “Data on Labor Wage,” dated July 14, 2010.

4.  See the Department's memorandum to the file entitled, “Wage Rate Calculation—Error in Currency Conversion of the Hourly Wage Rate for El Salvador,” dated July 15, 2010.

5.  See the Department's memoranda to the file entitled, “Ex Parte Meeting with Counsel for Max Fortune Industrial Limited and Max Fortune (FZ) Paper Products Co., Ltd. (Max Fortune),” dated July 26, 2010, and “Ex Parte Meeting with the Petitioner's Counsel,” dated July 26, 2010.

6.  See the Department's memorandum to the file entitled, “Honduras Data on Labor Wage Rate,” dated August 9, 2010 (August 9, 2010 memorandum).

7.  Since October 11, 2010, is a federal holiday, the final results are due on the next business day, October 12, 2010.

8.  See the Department's memoranda to the file entitled, “Ex Parte Meeting with Counsel for Max Fortune Industrial Limited and Max Fortune (FZ) Paper Products Co., Ltd. (Max Fortune),” dated September 21, 2010, and “Ex Parte Meeting with the Petitioner's Counsel,” dated September 30, 2010.

9.  On January 30, 2007, at the direction of U.S. Customs and Border protection (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.

10.  See the petitioner's submission on September 15, 2009.

11.  See Max Fortune's submission dated October 19, 2009.

12.  See Memorandum from John M. Andersen, Acting Deputy Assistant Secretary for AD/CVD Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration, entitled “Whether To Assign Max Fortune Industrial Limited (Max Fortune HK) and Max Fortune (FZ) Paper Products Co., Ltd. (Max Fortune Fuzhou) (collectively Max Fortune) a Margin Based on Adverse Facts Available in the Preliminary Results,” dated April 7, 2010.

13.  See Shanghai Taoen, International Trading Company v. United States, 360 F.Supp. 2d. 1339, 1344 (CIT 2005) (finding that the application of total AFA was warranted in light of evidence on the record that the respondent “purposely withheld” and provided misleading information to avoid a higher dumping margin).

14.  See Memorandum to The File from Case Analysts entitled “Verification of the Sales and Factors Questionnaire Response of Max Fortune (FZ) Paper Products Co., Ltd. and Max Fortune Industrial Limited in the Antidumping Duty Administrative Review of Certain Tissue Paper Products from the People's Republic of China,” dated April 7, 2010 (Max Fortune Verification Report) at page 23.

15.  Memorandum to The File from Case Analysts entitled “Verification of Data Submitted by {Anonymous Company} in the Antidumping Duty Administrative Review of Certain Tissue Paper Products from the People's Republic of China,” dated April 7, 2010 at pages 10-16.