[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
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PRC-wide Rate.............................................. 53.65
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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