[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Notices]
[Pages 77213-77216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3802]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-401-808]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination: Purified 
Carboxymethylcellulose From Sweden

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) preliminarily 
determines that purified carboxymethylcellulose (CMC) from Sweden is 
being sold, or is likely to be sold, in the United States at less than 
fair value (LTFV), as provided in section 733 of the Tariff Act of 
1930, as amended (the Act). The estimated margins of sales at LTFV are 
shown in the Suspension of Liquidation section of this notice.

EFFECTIVE DATE: December 27, 2004.

FOR FURTHER INFORMATION CONTACT: Helen M. Kramer at 202-482-0405 or 
Abdelali Elouaradia at 202-482-1374, AD/CVD Operations, Office 7, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 1401 Constitution Avenue, NW., Washington, DC 
20230.

Case History

    On June 9, 2004, the Department received a petition for the 
imposition of antidumping duties on purified CMC from Finland, Mexico, 
the Netherlands, and Sweden, filed in the proper form by Aqualon 
Company (Aqualon or petitioner), a division of Hercules Incorporated. 
See Letter from petitioner to Secretary Evans of the Department, 
``Petition for the Imposition of Antidumping Duties on Imports of 
Purified Carboxymethylcellulose (CMC) from Finland, Mexico, the 
Netherlands, and Sweden'' (Petition). The Department initiated the 
antidumping investigations of purified CMC from Finland, Mexico, the 
Netherlands, and Sweden on June 29, 2004. See Notice of Initiation of 
Antidumping Investigations: Purified Carboxymethylcellulose (CMC) from 
Finland, Mexico, the Netherlands, and Sweden, 69 FR 40617 (July 6, 
2004) (Initiation Notice). Since the initiation of this investigation, 
the following events have occurred.
    On July 23, 2004, the International Trade Commission (the 
Commission) preliminarily determined that there is a reasonable 
indication that an industry in the United States is materially injured 
by reason of imports of purified CMC from Finland, Mexico, the 
Netherlands, and Sweden that are alleged to be sold in the United 
States at LTFV. See Purified Carboxymethylcellulose from Finland, 
Mexico, the Netherlands, and Sweden, 69 FR 45851 (July 30, 2004).
    On July 29, 2004, the Department issued Sections A, B, and C of the 
antidumping questionnaire \1\ to Noviant CMC Oy of Finland, Quimica 
Amtex S.A. of Mexico, Noviant Holdings B.V. of the Netherlands, Akzo 
Nobel Specialty Chemicals of the Netherlands, and Noviant AB of Sweden.
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    \1\ Section A of the questionnaire requests general information 
concerning a company's corporate structure and business practices, 
the merchandise under investigation, and the manner in which it 
sells that merchandise in all of its markets. Section B requests a 
complete listing of all of the company's home market sales of 
foreign like product or, if the home market is not viable, of sales 
of the foreign like product in the most appropriate third-country 
market (this section is not applicable to respondents in non-market 
economy cases). Section C requests a complete listing of the 
company's U.S. sales of subject merchandise. Section D requests 
information on the cost of production of the foreign like product 
and the constructed value of the merchandise under investigation. 
Section E requests information on further manufacturing.
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    On July 30, 2004, petitioner submitted suggested model match 
criteria. On August 3, 2004, John Drury, Mark Flessner, Robert James, 
and Brian Sheba of the Department traveled to petitioner's Hopewell, 
Virginia production facility for a plant tour. See Memorandum to The 
File from Robert James, Program Manager, ``Purified 
Carboxymethylcellulose from Finland, Mexico, the Netherlands, and 
Sweden; Tour of Aqualon's Hopewell Plant'' (August 5, 2004).
    On August 9, 2004, respondents Noviant OY (Finland), Noviant BV 
(the

[[Page 77214]]

Netherlands), and Noviant AB (Sweden) submitted comments on 
petitioner's July 30, 2004, suggested model match criteria. On August 
11, 2004, petitioner rebutted Noviant's August 9, 2004, comments. On 
August 18, 2004, the Department issued proposed questionnaire Appendix 
V model match criteria to all interested parties. On August 19, 2004, 
petitioner filed comments on the Department's proposed model match 
criteria. On August 25, 2004, Noviant OY, Noviant BV, Noviant AB, and 
Noviant Inc. (United States) (collectively, Noviant Group Companies) 
filed comments to the Department's proposed model match and 
petitioner's August 19, 2004, comments thereto. On August 30, 2004, the 
Department issued its final questionnaire Appendix V model match 
criteria.
    On August 17, 2004, the Noviant Group Companies requested a three-
week extension to file their questionnaire responses. On August 19, 
2004, the Department granted the Noviant Group Companies a two-week 
extension. On September 3, 2004, the Noviant Group Companies requested 
a one-week extension to file their Section A questionnaire responses. 
On September 3, 2004, the Department granted the Noviant Group 
Companies a five-day extension. On September 9, 2004, the Noviant Group 
Companies submitted Section A questionnaire responses. On September 15, 
2004, the Noviant Group Companies requested a one-week extension to 
file questionnaire Sections B and C. On September 17, 2004, the 
Department granted the Noviant Group Companies' request.
    On September 24, 2004, the Noviant Group Companies notified the 
Department that Noviant OY and Noviant AB would not be submitting 
responses to Sections B and C of the Department's questionnaire. The 
Noviant Group Companies cited resource and staff limitations as the 
reason they could not participate in each parallel proceeding. As such, 
the Noviant Group Companies will only participate in the Noviant BV 
(the Netherlands) proceeding.
    On October 25, 2004, the petitioner requested a postponement of the 
preliminary determination in this investigation. On November 3, 2004, 
the Department published a Federal Register notice postponing the 
deadline for the preliminary determination until December 16, 2004. See 
Purified Carboxymethylcellulose from Finland (A-405-803), Mexico (A-
201-834), the Netherlands (A-421-811), and Sweden (A-401-808): Notice 
of Postponement of Preliminary Determinations of Antidumping 
Investigations, 69 FR 64030.

Postponement of Final Determination and Extension of Provisional 
Measures

    Section 735(a)(2) of the Act provides that a final determination 
may be postponed until not later than 135 days after the date of the 
publication of the preliminary determination if, in the event of an 
affirmative preliminary determination, a request for such postponement 
is made by exporters who account for a significant proportion of 
exports of the subject merchandise, or in the event of a negative 
preliminary determination, a request for such postponement is made by 
the petitioners. Section 351.210(e)(2) of the Department's regulations 
requires that requests by respondents for postponement of a final 
determination be accompanied by a request for an extension of the 
provisional measures from a four-month period to not more than six 
months.
    On November 19, 2004, on behalf of Noviant OY, Noviant BV and 
Noviant AB, the Noviant Group Companies requested that, in the event of 
an affirmative preliminary determination in this investigation, the 
Department postpone its final determination. Noviant also included a 
request to extend the provisional measures from a four-month period to 
not more than six months. In addition, on November 19, 2004, 
petitioners requested that, in the event of a negative determination or 
de minimis against respondents' imports, that the Department postpone 
the deadline for its final determination until a date not later than 
the 135th day after the date on which the Department will have 
published its notice of preliminary determination.
    Accordingly, because we have made an affirmative preliminary 
determination in this case, and the requesting parties account for a 
significant portion of exports of the subject merchandise, we are 
postponing the final determination until not later than 135 days after 
the date of the publication of the preliminary determination and are 
extending the provisional measures accordingly.

Period of Investigation

    The period of investigation (POI) is April 1, 2003, through March 
31, 2004. See 19 CFR 351.204(b)(1).

Scope Comments

    In accordance with the preamble to the Department's regulations 
(see Antidumping Duties; Countervailing Duties, 62 FR 27296, 27323 (May 
19, 1997)), we set aside a period of time for parties to raise issues 
regarding product coverage under the scope of the investigation and 
encouraged all parties to submit comments on product coverage within 20 
calendar days of publication of the Initiation Notice (see 68 FR 
40618). Comments were not submitted to the record of this 
investigation.

Scope of Investigation

    For purposes of this investigation, the products covered are all 
purified carboxymethylcellulose (CMC), sometimes also referred to as 
purified sodium CMC, polyanionic cellulose, or cellulose gum, which is 
a white to off-white, non-toxic, odorless, biodegradable powder, 
comprising sodium carboxymethylcellulose that has been refined and 
purified to a minimum assay of 90 percent. Purified CMC does not 
include unpurified or crude CMC, CMC Fluidized Polymer Suspensions, and 
CMC that is cross-linked through heat treatment. Purified CMC is CMC 
that has undergone one or more purification operations which, at a 
minimum, reduce the remaining salt and other by-product portion of the 
product to less than ten percent.
    The merchandise subject to this investigation is classified in the 
Harmonized Tariff Schedule of the United States (HTSUS) at subheading 
3912.31.00. This tariff classification is provided for convenience and 
customs purposes; however, the written description of the scope of this 
investigation is dispositive.

Facts Available

    For the reasons discussed below, we determine that the use of 
adverse facts available is appropriate for the preliminary 
determination with respect to Noviant AB.

A. Use of Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party 
withholds information requested by the Department, fails to provide 
such information by the deadline or in the form or manner requested, 
significantly impedes a proceeding, or provides information which 
cannot be verified, the Department shall use, subject to section 782(d) 
and (e) of the Act, facts otherwise available in reaching the 
applicable determination. Section 782(d) of the Act provides that if 
the Department determines that a response to a request for information 
does not comply with the Department's request, the Department shall 
promptly inform the responding party and provide an opportunity to 
remedy the deficient submission. Section 782(e) of the Act

[[Page 77215]]

further states that the Department shall not decline to consider 
submitted information if all of the following requirements are met: (1) 
The information is submitted by the established deadline; (2) the 
information can be verified; (3) the information is not so incomplete 
that it cannot serve as a reliable basis for reaching the applicable 
determination; (4) the interested party has demonstrated that it acted 
to the best of its ability; and (5) the information can be used without 
undue difficulties.
    In this case, Noviant AB has failed to provide pertinent 
information requested by the Department that is necessary to calculate 
the dumping margin for this preliminary determination. On September 24, 
2004, Noviant AB submitted a letter stating that it would not respond 
to Sections B and C of the Department's questionnaire. Specifically, 
Noviant AB failed to provide the following requested information, all 
of which is necessary to complete the Department's calculations: (1) 
Department questionnaire Section B, related to home market sales and 
expenses and (2) Department questionnaire Section C, related to U.S. 
market sales and expenses. Thus, in reaching our preliminary 
determination, pursuant to sections 776(a)(2)(A), (B), and (C) of the 
Act, we have based Noviant AB's dumping margin on facts available.

B. Application of Adverse Inferences for Facts Available

    In applying facts otherwise available, 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, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Final Negative Critical Circumstances: Carbon and 
Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794-96 (August 
30, 2002), Notice of Preliminary Determination of Sales at Less Than 
Fair Value and Postponement of Final Determination: Bottle-Grade 
Polyethylene Terephthalate (PET) Resin From Thailand, 69 FR 62850 
(October 28, 2004), Notice of Final Determination of Sales at Less Than 
Fair Value: Polyethylene Retail Carrier Bags From Thailand, 69 FR 34122 
(June 18, 2004), Notice of Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination: Certain 
Circular Welded Carbon-Quality Line Pipe From Mexico, 69 FR 59892 
(October 6, 2004). Adverse inferences are appropriate ``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.R. Rep. No. 103-316, at 870 (1994) (SAA). 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, 62 FR 27355 (May 19, 1997). Although the 
Department provided respondents with notice of the consequences of 
failure to respond adequately to the questionnaires in this case, 
Noviant AB has failed to respond to sections B and C of the 
questionnaire. This constitutes a failure on the part of Noviant AB to 
cooperate to the best of its ability to comply with a request for 
information by the Department within the meaning of section 776 of the 
Act. Therefore, the Department has preliminarily determined that in 
selecting from among the facts otherwise available, an adverse 
inference is warranted. See, e.g., Notice of Final Determination of 
Sales at Less than Fair Value: Circular Seamless Stainless Steel Hollow 
Products from Japan, 65 FR 42985, 42986 (July 12, 2000) (the Department 
applied total adverse facts available (AFA) where respondent failed to 
respond to the antidumping questionnaires).

C. Selection and Corroboration of Information Used as Facts Available

    Where the Department applies AFA 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); SAA at 829-831. In 
this case, because we are unable to calculate margins based on Noviant 
AB's own data and because an adverse inference is warranted, we have 
assigned to Noviant AB the margin alleged for Sweden in the petition, 
as recalculated in the initiation and described in detail below. See 
Initiation Notice.
    When using facts otherwise available, section 776(c) of the Act 
provides that, when the Department relies on secondary information 
(such as the petition), it must, to the extent practicable, corroborate 
that information from independent sources that are reasonably at its 
disposal.
    The SAA clarifies that ``corroborate'' means the Department will 
satisfy itself that the secondary information to be used has probative 
value. See SAA at 870. The Department's regulations state 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 19 CFR 351.308(d) and SAA at 870. To 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
used.
    For the purposes of this investigation, to the extent appropriate 
information was available, we reviewed the adequacy and accuracy of the 
information in the petition during our pre-initiation analysis. See 
Import Administration Investigation AD Initiation Checklist, at 6 (June 
29, 2004) (Initiation Checklist).
    For this preliminary determination, we examined evidence supporting 
the calculations in the petition to determine the probative value of 
the margins in the petition for use as AFA. In accordance with section 
776(c) of the Act, to the extent practicable, we examined the key 
elements of the export price (EP) and NV calculations on which the 
margins in the petition were based. We find that the estimated margin 
set forth in the initiation has probative value. See Memorandum to the 
File from Helen M. Kramer, International Trade Compliance Analyst, Re: 
Preliminary Determination in the Antidumping Investigation of Purified 
Carboxymethylcellulose (CMC) from Sweden: Total Facts Available 
Corroboration Memorandum, dated December 16, 2004 (Corroboration Memo). 
Therefore, in selecting AFA with respect to Noviant AB, we have applied 
the margin rate of 25.29 percent, the highest estimated dumping margin 
set forth in the notice of initiation, which is the margin alleged in 
the petition adjusted by the Department for currency conversion. See 
Initiation Notice, 68 FR 57667.

All Others Rate

    Section 735(c)(5)(B) of the Act provides that, where the estimated 
weighted-average dumping margins established for all exporters and 
producers individually investigated are zero or de minimis margins, 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. This 
provision contemplates that the Department may weight-average margins 
other than the

[[Page 77216]]

zero, de minimis, or facts available margins to establish the ``all 
others'' rate. When the data do not permit weight-averaging such other 
margins, the Statement of Administrative Action (SAA) provides that the 
Department may use any other reasonable methods. See the SAA 
accompanying the URAA, H.R. Rep. No. 103-316 at 873 (1994). Because the 
petition contained only one estimated dumping margin, there are no 
additional estimated margins available with which to create the ``all 
others'' rate. Therefore, we are using the initiation margin of 25.29 
percent as the ``all others'' rate. See Notice of Final Determination 
of Sales at Less Than Fair Value: Ferrovanadium from the Republic of 
South Africa, 67 FR 71136 (November 29, 2002).

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we are directing U.S. 
Customs and Border Protection (CBP) to suspend liquidation of all 
entries of purified CMC from Sweden that are entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of this 
notice in the Federal Register. We will instruct CBP to require a cash 
deposit or the posting of a bond equal to the weighted-average amount 
by which the NV exceeds the U.S. price, as indicated in the chart 
below. These suspension-of-liquidation instructions will remain in 
effect until further notice. The weighted-average dumping margins are 
as follows:

------------------------------------------------------------------------
                                                               Weighted-
                                                                average
                    Manufacturer/exporter                       margin
                                                               (percent)
------------------------------------------------------------------------
Noviant AB..................................................       25.29
All Others..................................................       25.29
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
Commission of our preliminary determination of sales at LTFV. If our 
final antidumping determination is affirmative, the Commission will 
determine whether the imports covered by that determination are 
materially injuring, or threatening material injury to, the U.S. 
industry. The deadline for that 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 for this investigation must be submitted no later than 
30 days after the publication of this notice. Rebuttal briefs must be 
filed within five 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. Further, the Department respectfully 
requests that all parties submitting written comments also provide the 
Department with an additional copy of the public version of any such 
comments on diskette.
    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 an interested party. If a request for a hearing 
is made in an investigation, the hearing normally will 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, DC 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. As noted 
above, the Department will make its final determination within 135 days 
after the date of the publication of the preliminary determination.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: December 16, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
 [FR Doc. E4-3802 Filed 12-23-04; 8:45 am]
BILLING CODE 3510-DS-P