[Federal Register Volume 62, Number 130 (Tuesday, July 8, 1997)]
[Notices]
[Pages 36491-36492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17778]



[[Page 36491]]

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DEPARTMENT OF COMMERCE

International Trade Administration
[A-570-827]


Certain Cased Pencils From the People's Republic of China; 
Amended Final Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Commerce.

ACTION: Notice of amended final results of antidumping duty 
administrative review; Certain cased pencils from the People's Republic 
of China.

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SUMMARY: On January 13, 1997, the Department of Commerce (the 
Department) published the preliminary results and partial rescission of 
an administrative review of the antidumping duty order on certain cased 
pencils (pencils) from the People's Republic of China (PRC) covering 
the period of December 21, 1994, through November 30, 1995 (62 FR 
1734). We gave interested parties an opportunity to comment on our 
preliminary results. On May 6, 1997, we published final results in this 
review and erroneously stated therein that we had received no comments 
(62 FR 24636). Subsequent to issuance of the final results, it was 
discovered that, in fact, a timely case brief had been submitted by the 
petitioner, the Pencil Section of the Writing Instrument Manufacturers 
Association and the domestic producers of pencils. No comments were 
filed by respondents or other interested parties. Therefore, we are 
amending the final results of this review to address these comments. 
This amendment to the final results changes the PRC-wide dumping margin 
from 44.66 percent to 53.65 percent for this period.

EFFECTIVE DATE: July 8, 1997.

FOR FURTHER INFORMATION CONTACT: Paul Stolz or Thomas Futtner, Office 
of Antidumping/Countervailing Duty Enforcement, Import Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue NW., 
Washington, DC 20230, telephone (202) 482-4474/3814.

Applicable Statute

    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's regulations are to the 
regulations set forth at 19 CFR 353.1, et seq., as amended by the 
interim regulations published in the Federal Register on May 11, 1995 
(60 FR 25130).

SUPPLEMENTARY INFORMATION:

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 
investigation 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

    The antidumping duty order on pencils from the PRC was published in 
the Federal Register on December 28, 1994 (59 FR 66909). On January 13, 
1997, the Department published in the Federal Register the preliminary 
results and partial rescission of its review of this order for the 
December 21, 1994 through November 30, 1995 period of review (POR) (62 
FR 1734). On April 30, 1997 the Department issued final results for 
this review (62 FR 24636). On May 1, 1997, it was discovered that the 
petitioner had submitted comments on the preliminary results which were 
not considered by the Department in arriving at its final results. 
Therefore, pursuant to section 735(e) of the Act and 19 CFR 353.28(c) 
the Department is amending the final results of this review to correct 
for this ministerial error by addressing the petitioner's comments.

Analysis of Comments Received

    Comment 1: Petitioner argues that the recalculated petition rate of 
44.66 percent (the PRC-wide rate from the less-than-fair value (LTFV) 
investigation) used in the preliminary results lacks probative value 
and should not be used as facts available to set the PRC-wide rate in 
the instant review. Petitioner argues that, although the Department 
properly resorted to facts available to set the PRC country-wide rate 
in this review, the Department has repudiated the recalculated petition 
rate of 44.66 percent pursuant to a voluntary remand determination in a 
pending action in the United States Court of International Trade (CIT), 
Writing Instrument Manufacturers Association et al. v. United States, 
Court No. 95-01-00081 (Writing Instruments). Petitioner argues that 
because the Department itself repudiated the 44.66 percent rate, this 
rate lacks probative value. Petitioner argues that the Department 
should rely instead on the rate of 53.65 percent, submitted as the 
recalculated petition rate to the court under the voluntary remand, as 
facts available. Petitioner argues that the Department itself views 
this rate, although as yet unaffirmed by the court, to be more 
accurate, i.e., affording proof or evidence of the issue, and thus 
having probative value.
    Department Position: We agree with the petitioner that the 53.65 
percent rate submitted to the CIT pursuant to the voluntary remand has 
more probative value for use as facts available than the recalculated 
petition rate of 44.66 percent.
    Section 776(a)(1) of the Act mandates that the Department use the 
facts available 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 the facts available 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, certain named 
respondents failed to respond to the Department's questionnaire. Where 
the Department must rely on the facts otherwise available because a 
respondent failed to cooperate to the best of its ability in responding 
to a request for information, section 776(b) authorizes the Department 
to make an inference adverse to the interests of that respondent in 
choosing the facts available. Section 776(b) also authorizes the 
Department to use as adverse facts available information derived from 
the petition, the final determination in the investigation, a previous 
administrative review, or other information placed on the record. 
Because information from prior proceedings constitutes secondary 
information, section 776(c) provides that the Department shall, to the 
extent practicable, corroborate that secondary information from 
independent sources reasonably at its disposal. See also, Statement of 
Administrative Action (SAA) (H. Doc. 316, 103d Cong., 2nd

[[Page 36492]]

Sess. 870), providing 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.''
    In August 1995, we requested that the CIT remand to us the two 
issues of : (1) Basswood prices; and (2) valuation of slats and logs. 
In performing the remand, the recalculated petition rate of 44.66 
percent was changed to 53.65 percent. Consistent with a recent ruling 
by the U.S. Court of Appeals for the Federal Circuit (CAFC) in an 
unrelated action, we consider it inappropriate to use as facts 
available a rate that we have determined is indefensible. In reviewing 
the Department's selection of the best information available, i.e., the 
predecessor provision in the Act to the facts available provision, the 
CAFC held in D&L Supply v. the United States, 1997 WL230117, at 2 (May 
8, 1997 Fed. Cir.) (D&L Supply) that ``(i)nformation that has 
conclusively been determined to be inaccurate does not qualify as the 
`best information' under any test and certainly cannot be said to serve 
the `basic purpose' of promoting accuracy.''
    While there is no conclusive court action on the amended petition 
rate, we have found it to be indefensible and, therefore, not 
probative. Petitioner is correct that the Department itself requested a 
remand in the Writing Instruments action in order to correct for a 
procedural error at the LTFV investigation. Further, to conduct the 
remand proceeding, the Department re-opened the administrative record 
to accept the submission of new factual information from the parties. 
After analyzing this new factual information, and on the basis of this 
fuller administrative record, the Department determined on remand that 
the appropriate PRC-wide rate is 53.65 percent.
    Under these circumstances, and pursuant to the Department's charge 
under section 776(c) of the Act to corroborate secondary information 
from independent sources reasonably at the Department's disposal, we 
determine that the unaffirmed remand determination rate of 53.65 
percent is the rate with more probative value. In performing the 
remand, the Department relied on new factual information from the very 
types of independent sources, including published price lists and 
official import statistics and customs data, that are discussed in the 
SAA at 870. All of the new factual information on the re-opened 
administrative record was publicly-available information on which the 
Department principally relies in non-market economy cases. Because the 
analysis performed on remand was based on a much fuller factual record, 
the Department believes that the remand results provide the more 
appropriate facts available rate.
    Therefore, the Department is relying on the 53.65 percent rate as 
facts available to establish the PRC country-wide rate in this review.
    Comment 2: Petitioner asserts that the recalculated petition rate 
reflects underlying legal errors pertaining to the LTFV investigation. 
Petitioner argues that these alleged errors are found both in the LTFV 
investigation as well as in the results of the remand determination, 
and requests that the Department correct these alleged errors in the 
final results of this review.
    Department Position: The bases of the petitioner's various 
assertions of underlying legal errors relating to the LTFV 
investigation are contained in the administrative record of the LTFV 
investigation, and not in the administrative record of this 
administrative review. These claims are properly before the CIT in the 
pending Writing Instruments action, which action pertains to the LTFV 
investigation and for which a decision is now pending.

Amended Final Results of the Review

    Based on our analysis of the issues outlined above, we have 
determined that a margin of 53.65 percent is appropriate for the PRC 
entity for the POR December 21, 1994 through November 30, 1995. 
(Separate rates and exclusions determinations previously noted in the 
final results of this review are unaffected by these amended final 
results.)
    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                               Weighted 
                                                               average  
               Manufacturer/producer/exporter                   margin  
                                                              percentage
------------------------------------------------------------------------
PRC-wide Rate..............................................        53.65
------------------------------------------------------------------------

The U.S. Customs Service shall assess antidumping duties on all 
appropriate entries. Individual differences between United States price 
and normal value may vary from the percentage stated above. The 
Department will issue appraisement instructions concerning the 
respondent directly to the U.S. Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of the subject merchandise, entered, or withdrawn 
from warehouse, for consumption on or after the publication date of 
these final results of administrative review, as provided for by 
section 751(a)(1) of the Act: Merchandise exported by all PRC exporters 
other than those previously assigned separate rates and/or excluded 
from this antidumping duty order will be the PRC-wide rate of 53.65 
percent.
    These deposit requirements shall remain in effect until publication 
of the final results of the next administrative review. This notice 
serves as the final reminder to importers of their responsibility under 
19 CFR 353.26 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 the subsequent assessment of double antidumping 
duties.
    This notice also serves as a 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 353.34(d). Timely written notification or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and the terms of the APO is a sanctionable 
violation.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)), section 777(i) of 
the Act (19 U.S.C. 1677f(i)), and 19 CFR 353.28(c).

    Dated: July 1, 1997.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration
[FR Doc. 97-17778 Filed 7-7-97; 8:45 am]
BILLING CODE 3510-DS-P