[Federal Register Volume 69, Number 247 (Monday, December 27, 2004)]
[Notices]
[Pages 77216-77220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E4-3803]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-405-803]


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

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: The Department of Commerce (the Department) preliminarily 
determines that purified carboxymethylcellulose (CMC) from Finland 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 Tariff 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: Brian J. Sheba at (202) 482-0145 or 
Robert M. James at (202) 482-0649, AD/CVD Operations, Office 7, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230.

SUPPLEMENTARY INFORMATION:

Background

    On June 9, 2004, the Department of Commerce (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 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 investigation 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

[[Page 77217]]

CMC OY of Finland (Noviant OY), the sole respondent in this 
investigation, noting that Appendix V concerning model match criteria 
was not enclosed. The Department stated that it would serve all parties 
with a copy of the proposed model match criteria in the near future. We 
did so on August 18, 2004.
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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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    Petitioner filed comments on the Department's proposed model match 
criteria on July 30, 2004, August, 11, 2004, and August 19, 2004. The 
respondent submitted rebuttal comments on August 9, 2004 and August 25, 
2004. The Department issued its final Appendix V to the questionnaire 
(model match criteria) on August 30, 2004.
    On September 9, 2004, Noviant OY submitted its Section A 
questionnaire response. On September 15, 2004, Noviant OY, Noviant BV 
(the Netherlands), and Noviant AB (Sweden) (collectively, the Noviant 
Group Companies) requested a one-week extension to file the Section B 
and C responses. On September 17, 2004, the Department granted the 
Noviant Group Companies' request. On September 24, 2004, Noviant OY 
notified the Department that it would not be submitting a response to 
Sections B and C of the Department's questionnaire. Noviant OY cited 
resource and staff limitations as the reason they could not participate 
in each parallel 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: Notice of Postponement of 
Preliminary Determinations of Antidumping Investigations, 69 FR 64030 
(November 3, 2004).
    On October 12, 2004, the petitioner requested that the Department 
impose total adverse facts available (AFA) based on the respondent's 
failure to cooperate fully with the Department in this proceeding. The 
petitioner filed amended AFA calculations and arguments on November 2, 
2004, and December 2, 2004. On November 24, 2004, and December 13, 
2004, the respondent filed arguments opposing the use of the 
petitioner's AFA methodology and, as an alternative argument, proffered 
its own calculations. See the Application of Adverse Inferences for 
Facts Available Section of this notice.

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 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 of 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 for the record of this 
investigation.

Scope of Investigations

    For purposes of these investigations, 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 these investigations 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 these investigations 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 OY.

A. Use of Facts Available

    Section 776(a)(2) of the Tariff 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

[[Page 77218]]

sections 782(d) and (e) of the Tariff Act, facts otherwise available in 
reaching the applicable determination. Section 782(d) of the Tariff 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 
Tariff Act 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 OY has failed to provide pertinent 
information requested by the Department that is necessary to properly 
calculate antidumping margin for its preliminary determination. 
Specifically, Noviant OY 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 Tariff Act, we have based 
Noviant OY's dumping margin on facts otherwise available.

B. Application of Adverse Inferences for Facts Available

    In applying the facts otherwise available, section 776(b) of the 
Tariff 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. 
Doc. No. 103-316, at 870 (1994) (SAA). Affirmative evidence of bad 
faith, or willfulness, on the part of a respondent is not required 
before the Department may make an adverse inference. See Nippon Steel 
Corp. v. United States, 337 F.3d 1373, 1383-84 (Fed. Cir. 2003). 
Although the Department provided the respondent with notice of the 
consequences of failure to adequately respond to the questionnaires in 
this case, Noviant OY failed to respond to Sections B and C of the 
questionnaire. This constitutes a failure on the part of Noviant OY to 
cooperate to the best of its ability to comply with a request for 
information by the Department within the meaning of section 776(b) of 
the Tariff 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 the 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 Tariff 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 OY's own data and because an adverse inference is warranted, 
we have assigned to Noviant OY the margin alleged for Finland 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 Tariff 
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 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.
    It is the Department's practice to use the highest calculated rate 
from the petition in an investigation when a respondent fails to act to 
the best of its ability to provide the necessary information and there 
are no other respondents. As discussed in Tapered Roller Bearings and 
Parts Thereof, Finished and Unfinished, from Japan, and Tapered Roller 
Bearings, Four Inches or Less in Outside Diameter, and Components 
Thereof, from Japan; Preliminary Results of Antidumping Duty 
Administrative Reviews and Partial Termination of Administrative 
Reviews, 61 FR 57391, 57392 (November 6, 1996) (TRBs), to corroborate 
secondary information, the Department will, to the extent practicable, 
examine the reliability and relevance of the information used.
    As noted above in the case history, the petitioner filed comments 
for an alternative AFA methodology. Noting the initiation rate for 
Noviant OY was conservative, the petitioner proposed an AFA margin 
based on cost of production (COP) and constructed value (CV) 
information gathered from the Noviant OY's financial statements which 
were included in its Section A questionnaire response.
    The respondent argued that the petitioner's alternative AFA 
calculations were without merit. In a submission filed just three days 
before the signature date for this preliminary determination, 
respondent proposed its own alternative AFA calculation based on the 
COP and CV information available on the record.
    The Department intends to evaluate all of the parties' comments on 
this issue in light of the information and argument placed recently on 
the record. Therefore, for purposes of this preliminary determination, 
and consistent with our normal practice, we are relying on the 
initiation margin for

[[Page 77219]]

purposes of AFA. Should we choose an alternative basis for AFA 
subsequent to this preliminary determination, we will provide the 
parties an opportunity to comment prior to the final determination.
    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 and for 
this preliminary determination. See ``Import Administration 
Investigation AD Initiation Checklist,'' at 6 (June 29, 2004) 
(Initiation Checklist). Also, as discussed below, we examined evidence 
supporting the calculations in the petition to determine the probative 
value of the margins in the petition for use as AFA for this 
preliminary determination. In accordance with section 776(c) of the 
Tariff Act, to the extent practicable, we examined the key elements of 
the export price (EP) and normal value (NV) calculations on which the 
margins in the petition were based. See Memorandum from Brian Sheba to 
Richard Weible, Re: Corroboration of Data Contained in the Petition for 
Assigning Facts Available Rates, dated December 16, 2004 (Corroboration 
Memo).
1. Corroboration of Export Price
    The petitioner based EP on a price obtained from a potential U.S. 
customer of purified CMC produced by Noviant OY's plant in Finland. The 
petitioner calculated net U.S. price by deducting U.S. inland freight 
expense, ocean freight and marine insurance, documentation fees, port 
fees, U.S. customs duties, intra-European freight, and foreign inland 
freight expense. We compared the U.S. market price quotes with official 
U.S. import statistics and found the prices used by the petitioner to 
have probative value. See id.
2. Corroboration of Normal Value
    To calculate home market NV, the petitioner met with 
representatives of a Finnish customer during the POI. During the course 
of that meeting, the customer stated the current Noviant OY price on a 
delivered basis. The petitioner's only adjustment to NV is foreign 
inland freight expense to account for the shipment of the subject 
merchandise from Noviant OY's plant in Aanekoski, Finland to the 
customer's plant in Finland. The petitioner obtained this freight 
expense through a price quote from an independent shipper. To 
corroborate the petitioner's NV calculations, we compared the prices 
and expenses used to the source documents upon which the petitioner's 
methodology was based as well as information submitted in Noviant OY's 
questionnaire response.
    Therefore, based on our efforts, described above, to corroborate 
information contained in the petition, and in accordance with section 
776(c) of the Tariff Act, we consider the highest margin in the 
petition to be corroborated, to the extent practicable, for purposes of 
this preliminary determination.
    Accordingly, in selecting AFA with respect to Noviant OY, we have 
applied the margin rate of 6.65 percent, which is the margin alleged in 
the petition as adjusted by the Department for currency conversion. See 
Initiation Notice, 68 FR 57667.

All Others Rate

    Section 735(c)(5)(B) of the Tariff 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 
Tariff 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 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 SAA at 873 (1994). Because 
the petition contained only one estimated dumping margin, there are no 
additional estimated margins available with which to calculate the 
``all others'' rate. Therefore, we are using the initiation margin of 
6.65 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 Tariff Act, we are 
directing U.S. Customs and Border Protection (CBP) to suspend 
liquidation of all entries of purified CMC from Finland 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 OY..................................................        6.65
All Others..................................................        6.65
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 733(f) of the Tariff Act, we have 
notified the Commission of our preliminary determination of sales at 
less than fair value. 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 the Commission's 
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

[[Page 77220]]

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. E4-3803 Filed 12-22-04; 8:45 am]
BILLING CODE 3510-DS-P