[Federal Register Volume 72, Number 75 (Thursday, April 19, 2007)]
[Notices]
[Pages 19690-19694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7386]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

A-570-905


Final Determination of Sales at Less Than Fair Value and Partial 
Affirmative Determination of Critical Circumstances: Certain Polyester 
Staple Fiber from the People's Republic of China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

EFFECTIVE DATE:  April 19, 2007
SUMMARY: On December 26, 2006, the Department of Commerce (the 
``Department'') published its preliminary determination of sales at 
less than fair value (``LTFV'') in the antidumping investigation of 
certain polyester staple fiber (``PSF'') from the People's Republic of 
China (``PRC''). The period of investigation (``POI'') is October 1, 
2005, to March 31, 2006. We invited interested parties to comment on 
our preliminary determination of sales at LTFV. Based on our analysis 
of the comments we received, we have made changes to our calculations 
for the mandatory respondents. The final dumping margins for this 
investigation are listed in the ``Final Determination Margins'' section 
below.

FOR FURTHER INFORMATION CONTACT: Michael Holton or Paul Walker, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 
20230; telephone: (202) 482-1324 or (202) 482-0413, respectively.

Final Determination

    We determine that PSF from the PRC is being, or is likely to be, 
sold in the United States at LTFV as provided in section 735 of the 
Tariff Act of 1930, as amended (``the Act''). The estimated margins of 
sales at LTFV are shown in the ``Final Determination Margins'' section 
of this notice.

SUPPLEMENTARY INFORMATION:

Case History

    The Department published its preliminary determination of sales at 
LTFV on
    December 26, 2006. See Preliminary Determination of Sales at Less 
Than Fair Value and Partial Affirmative Determination of Critical 
Circumstances: Certain Polyester Staple Fiber from the People's 
Republic of China, 71 FR 77373 (December 26, 2006) (``Preliminary 
Determination''). Between January 8 and February 16, 2007, the 
Department conducted verifications of Cixi Jiangnan Chemical Fiber Co. 
Ltd. (``Cixi Jiangnan''), Far Eastern Industries (Shanghai) Ltd. (``Far 
Eastern''), Hangzhou Huachuang Co., Ltd. (``Hangzhou Huachuang''), 
Jiaxing Fuda Chemical Fibre Factory (``Fuda''), Ningbo Dafa Chemical 
Fiber Co., Ltd. (``Ningbo Dafa'') and Zhaoqing Tifo New Fiber Co., Ltd. 
(``Tifo''). See the ``Verification'' section below for additional 
information.
    We invited parties to comment on the Preliminary Determination. On 
March 15, 2007, the Petitioners,\1\ Insituform Technologies, Inc. 
(``ITI''), Ashley Furniture Industries, Inc. (``Ashley''), Fibertex 
Corporation (``Fibertex'')\2\, Far Eastern, Cixi Jiangnan and Ningbo 
Dafa filed case briefs. On March 20, 2007, the Petitioners, Far 
Eastern, Cixi Jiangnan and Ningbo Dafa filed rebuttal briefs. All 
parties that submitted a timely request for a hearing in this case 
withdrew those requests. Therefore, the Department did not hold a 
hearing.
---------------------------------------------------------------------------

    \1\ Dak Americas LLC., Nan Ya Plastics Corporation America, and 
Wellman, Inc.
    \2\ ITI, Ashley and Fibertex are interested parties who are U.S. 
importers of PSF. Ashley and Fibertex submitted joint case briefs.
---------------------------------------------------------------------------

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this investigation are addressed in the ``Investigation of Certain 
Polyester Staple Fiber from the People's Republic of China: Issues and 
Decision Memorandum,'' dated April 10, 2007, which is hereby adopted by 
this notice (``Issues and Decision Memorandum''). A list of the issues 
which parties raised and to which we respond in the Issues and Decision 
Memorandum is attached to this notice as an Appendix. The Issue and 
Decision Memorandum is a public document and is on file in the Central 
Records Unit (``CRU''), Main Commerce Building, Room B-099, and is 
accessible on the Web at http://www.trade.gov/ia. The paper copy and 
electronic version of the memorandum are identical in content.

[[Page 19691]]

Changes Since the Preliminary Determination

    Based on our analysis of comments received, we have made changes to 
the margin calculation for Cixi Jiangnan, Far Eastern and Ningbo Dafa 
as follows.
    We have made the following changes to Cixi Jiangnan's margin 
calculation:
    Other than the issues discussed below, we have determined to not 
include marine insurance from Cixi Jiangan's CNF market economy 
purchases. At verification, Cixi Jiangnan provided information that it 
did not incur marine insurance. For a detailed analysis of Cixi 
Jiangnan's margin calculation, see Final Determination in the 
Investigation of Certain Polyester Staple Fiber from the People's 
Republic of China: Analysis Memorandum for Cixi Jiangnan Fiber Co. 
Ltd., dated April 10, 2007.
    We have made the following changes to Far Eastern's margin 
calculation:
    Other than the issues discussed below, we have determined to 
include the additional international freight expense that Far Eastern 
reported as a minor correction to its market economy international 
freight expense. Furthermore, we have also determined to make an 
adjustment to Far Eastern's reported scrap by-product by capping it at 
the level of scrap it actually produced during the POI. Finally, we 
have determined to use a surrogate value for Far Eastern's purchases of 
EG from its affiliated supplier. See below and Issues and Decision 
Memorandum at Comment 21. For a detailed analysis of Far Eastern's 
margin calculation, see Final Determination in the Investigation of 
Certain Polyester Staple Fiber from the People's Republic of China: 
Analysis Memorandum for Far Eastern Industries (Shanghai) Ltd., dated 
April 10, 2007.
    We have made the following changes to Ningbo Dafa's margin 
calculation:
    We have determined that it is appropriate to apply partial facts 
available to Ningbo Dafa. As noted below in the ``Facts Available'' 
Section, we are applying the color-specific market economy purchase 
prices of Ningbo Dafa's PET flake invoices to the surrogate value of 
PET flake, based on the CONNUM of the finished PSF. See below and 
Issues and Decision Memorandum at Comment 25. For a detailed analysis 
of Ningbo Dafa's margin calculation, see see Final Determination in the 
Investigation of Certain Polyester Staple Fiber from the People's 
Republic of China: Analysis Memorandum for Ningbo Dafa Chemical Fiber 
Co., Ltd., dated April 10, 2007.
    In addition, the Department has made changes to its calculation of 
the brokerage and handling, PSF wastes and by-product surrogate values 
as described in the Issues and Decision Memorandum at Comments 5 
through 9. Moreover, the Department has made changes to its calculation 
of surrogate financial ratios as described in the Issues and Decision 
Memorandum at Comment 12. The Department has also revised the surrogate 
value for labor to $0.83, using a revised expected wage rate posted on 
the Department's website on February 2, 2007. Further, the Department 
determines that it is appropriate to apply the methodology described in 
the December 27, 2006, Federal Register Notice regarding the treatment 
of negative margin to this investigation. See Issues and Decision 
Memorandum at Comment 4 and Final Modification; Calculation of the 
Weighted-Average Dumping Margin During an Antidumping Investigation, 71 
FR 77722 (December 27, 2006).

Scope of Investigation

    The merchandise subject to this proceeding is synthetic staple 
fibers, not carded, combed or otherwise processed for spinning, of 
polyesters measuring 3.3 decitex (3 denier, inclusive) or more in 
diameter. This merchandise is cut to lengths varying from one inch (25 
mm) to five inches (127 mm). The subject merchandise may be coated, 
usually with a silicon or other finish, or not coated. PSF is generally 
used as stuffing in sleeping bags, mattresses, ski jackets, comforters, 
cushions, pillows, and furniture.
    The following products are excluded from the scope: (1) PSF of less 
than 3.3 decitex (less than 3 denier) currently classifiable in the 
Harmonized Tariff Schedule of the United States (``HTSUS'') at 
subheading 5503.20.0025 and known to the industry as PSF for spinning 
and generally used in woven and knit applications to produce textile 
and apparel products; (2) PSF of 10 to 18 denier that are cut to 
lengths of 6 to 8 inches and that are generally used in the manufacture 
of carpeting; and (3) low-melt PSF defined as a bi-component fiber with 
an outer, non-polyester sheath that melts at a significantly lower 
temperature than its inner polyester core (classified at HTSUS 
5503.20.0015).
    Certain PSF is classifiable under the HTSUS subheadings 
5503.20.0045 and 5503.20.0065. Although the HTSUS subheadings are 
provided for convenience and customs purposes, the written description 
of the merchandise under the orders is dispositive.

Scope Comments

    We received scope comments from ITI. However, these scope comments 
contained untimely and new factual information and were rejected by the 
Department. See the Department's letter dated March 19, 2007. No other 
interested party submitted scope comments since the Preliminary 
Determination. Therefore, we have not changed the scope from the 
Initiation Notice. See Initiation of Antidumping Duty Investigation: 
Certain Polyester Staple Fiber from the People's Republic of China, 71 
FR 41201 (July 20, 2006) (``Initiation Notice'').

Facts Available

    Section 776(a)(2) of the Act provides that if an interested party: 
(A) withholds information that has been requested by the Department; 
(B) fails to provide such information in a timely manner or in the form 
or manner requested, subject to subsections 782(c)(1) and (e) of the 
Act; (C) significantly impedes a determination under the antidumping 
statute; or (D) provides such information but the information cannot be 
verified, the Department shall, subject to subsection 782(d) of the 
Act, use facts otherwise available in reaching the applicable 
determination.
    Section 782(c)(1) of the Act provides that, if an interested party 
promptly notifies the Department that it is unable to submit the 
information in the requested form and manner, together with a full 
explanation and suggested alternative forms in which such party is able 
to submit the information, the Department shall take into consideration 
the ability of the party to submit the information in the requested 
form and manner and may modify such requirements to the extent 
necessary to avoid imposing an unreasonable burden on that party.
    For this final determination, in accordance with section 
776(a)(2)(B) of the Act and 782(c)(1) of the Act, we have determined 
that the use of neutral facts available is appropriate for Ningbo 
Dafa's PET flake. See Issues and Decision Memorandum at Comment 20. As 
neutral facts available, we are applying the color-specific, market 
economy purchase prices of Ningbo Dafa's PET flake invoices to value 
PET flake, based on the CONNUM of the finished PSF. See Analysis for 
the Final Determination of Certain Polyester Staple Fiber from the 
People's Republic of China: Ningbo Dafa Chemical Fiber Co., Ltd., dated 
April 10, 2007.

Verification

    As provided in section 782(i) of the Act, we verified the 
information

[[Page 19692]]

submitted by the respondents and three separate rate applicants for use 
in our final determination. See the Department's verification reports 
on the record of this investigation in the CRU with respect to Cixi 
Jiangnan, Far Eastern, Hangzhou Huachuang, Fuda, Ningbo Dafa and Tifo. 
For all verified companies, we used standard verification procedures, 
including examination of relevant accounting and production records, as 
well as original source documents provided by respondents.

Surrogate Country

    In the Preliminary Determination, we stated that we had selected 
India as the appropriate surrogate country to use in this investigation 
for the following reasons: (1) It is a significant producer of 
comparable merchandise; (2) it is at a similar level of economic 
development pursuant to 773(c)(4) of the Act; and (3) we have reliable 
data from India that we can use to value the factors of production. See 
Preliminary Determination. For the final determination, we received no 
comments and made no changes to our findings with respect to the 
selection of a surrogate country.

Separate Rates

    In proceedings involving non-market-economy (``NME'') countries, 
the Department begins with a rebuttable presumption that all companies 
within the country are subject to government control and, thus, should 
be assigned a single antidumping duty deposit rate. It is the 
Department's policy to assign all exporters of merchandise subject to 
an investigation in an NME country this single rate unless an exporter 
can demonstrate that it is sufficiently independent so as to be 
entitled to a separate rate. See Final Determination of Sales at Less 
Than Fair Value: Sparklers from the People's Republic of China, 56 FR 
20588 (May 6, 1991) (``Sparklers''), as amplified by Notice of Final 
Determination of Sales at Less Than Fair Value: Silicon Carbide from 
the People's Republic of China, 59 FR 22585 (May 2, 1994) (``Silicon 
Carbide''), and Section 351.107(d) of the Department's regulations.
    In the Preliminary Determination, we found that Cixi Jiangnan, Far 
Eastern and Ningbo Dafa, and the separate rate applicants who received 
a separate rate (``Separate Rate Applicants'') in the Preliminary 
Determination demonstrated their eligibility for separate-rate status. 
For the final determination, we continue to find that the evidence 
placed on the record of this investigation by Cixi Jiangnan, Far 
Eastern and Ningbo Dafa, and the Separate Rate Applicants demonstrate 
both a de jure and de facto absence of government control, with respect 
to their respective exports of the merchandise under investigation, 
and, thus are eligible for separate rate status.

The PRC-Wide Rate

    In the Preliminary Determination, the Department found that certain 
companies and the PRC-wide entity did not respond to our requests 
information. In the Preliminary Determination we treated these PRC 
producers/exporters as part of the PRC-wide entity because they did not 
demonstrate that they operate free of government control over their 
export activities. No additional information has been placed on the 
record with respect to these entities after the Preliminary 
Determination. The PRC-wide entity has not provided the Department with 
the requested information; therefore, pursuant to section 776(a)(2)(A) 
of the Act, the Department continues to find that the use of facts 
available is appropriate to determine the PRC-wide rate. Section 776(b) 
of the Act provides that, in selecting from among the facts otherwise 
available, the Department may employ an adverse inference if an 
interested party fails to cooperate by not acting to the best of its 
ability to comply with requests for information. See Notice of Final 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Flat-Rolled Carbon-Quality Steel Products from the Russian Federation, 
65 FR 5510, 5518 (February 4, 2000). See also, ``Statement of 
Administrative Action'' accompanying the URAA, H.R. Rep. No. 103-316, 
vol. 1, at 870 (1994) (``SAA''). We determined that, because the PRC-
wide entity did not respond to our request for information, it has 
failed to cooperate to the best of its ability. Therefore, the 
Department finds that, in selecting from among the facts otherwise 
available, an adverse inference is appropriate for the PRC-wide entity.
    Because we begin with the presumption that all companies within a 
NME country are subject to government control and because only the 
companies listed under the ``Final Determination Margins'' section 
below have overcome that presumption, we are applying a single 
antidumping rate - the PRC-wide rate - to all other exporters of 
subject merchandise from the PRC. Such companies did not demonstrate 
entitlement to a separate rate. See, e.g., Synthetic Indigo from the 
People's Republic of China: Notice of Final Determination of Sales at 
Less Than Fair Value, 65 FR 25706 (May 3, 2000). The PRC-wide rate 
applies to all entries of subject merchandise except for entries from 
the respondents which are listed in the ``Final Determination Margins'' 
section below (except as noted).

Critical Circumstances

    In the Preliminary Determiantion, we found that there have been 
massive imports of the subject merchandise over a relatively short 
period for Far Eastern. In addition, we relied on a period of six 
months as the period, which was the maximum duration for the 
information we had available at that time, for comparison in 
preliminarily determining whether imports of the subject merchandise 
were massive.
    For the final determination, however, we collected an additional 
three months of data from the respondents. After analyzing the 
additional data, we continue to find that Far Eastern had massive 
imports of PSF over a relatively short period of time. See Memorandum 
from James C. Doyle, Office Director, to Stephen J. Claeys, Deputy 
Assistant Secretary, Preliminary Affirmative Determination of Critical 
Circumstances, (December 15, 2006) at 2-3 (``Critical Circumstances 
Memo''), dated April 10, 2007. Moreover, we continue to find that 
Ningbo Dafa, Cixi Jiangnan, the Separate Rates Applicants and the PRC-
wide entity did not have massive imports of PSF over a relatively short 
period of time. Id.

Corroboration

    At the Preliminary Determination, in accordance with section 776(c) 
of the Act, we corroborated our adverse facts available (``AFA'') 
margin by comparing the U.S. price and normal values from the petition 
to the U.S. price and normal values for the respondents. We continue to 
find that the margin of 44.30 percent has probative value. See 
Memorandum to the File: Corroboration of the PRC-Wide Facts Available 
Rate for the Final Determination in the Antidumping Duty Investigation 
of Certain Polyester Staple Fiber from the People's Republic of China, 
dated April 10, 2007 (``Final Corroboration Memo''). Accordingly, we 
find that the rate of 44.30 percent is corroborated within the meaning 
of section 776(c) of the Act.

Final Determination Margins

    We determine that the following percentage weighted-average margins 
exist for the POI:

[[Page 19693]]



           PSF from the PRC - Weighted-average Dumping Margins
------------------------------------------------------------------------
                                                       Weighted-Average
                 Exporter & Producer                     Deposit Rate
------------------------------------------------------------------------
Cixi Jiangnan Chemical Co., Ltd.....................          de minimis
Far Eastern Industries (Shanghai) Ltd...............               3.47%
Ningbo Dafa Chemical Fiber Co., Ltd.................               4.86%
Cixi Sansheng Chemical Fiber Co., Ltd...............               4.44%
Cixi Santai Chemical Fiber Co., Ltd.................               4.44%
Cixi Waysun Chemical Fiber Co., Ltd.................               4.44%
Hangzhou Best Chemical Fibre Co., Ltd...............               4.44%
Hangzhou Hanbang Chemical Fibre Co., Ltd............               4.44%
Hangzhou Huachuang Co., Ltd.........................               4.44%
Hangzhou Sanxin Paper Co., Ltd......................               4.44%
Hangzhou Taifu Textile Fiber Co., Ltd...............               4.44%
Jiaxang Fuda Chemical Fibre Factory.................               4.44%
Nantong Luolai Chemical Fiber Co. Ltd...............               4.44%
Nanyang Textile Co., Ltd............................               4.44%
Suzhou PolyFiber Co., Ltd...........................               4.44%
Xiamen Xianglu Fiber Chemical Co....................               4.44%
Zhaoqing Tifo New Fiber Co., Ltd....................               4.44%
Zhejiang Anshun Pettechs Fibre Co., Ltd.............               4.44%
Zhejiang Waysun Chemical Fiber Co., Ltd.............               4.44%
PRC-Wide Rate.......................................              44.30%
------------------------------------------------------------------------

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    Pursuant to section 735(c)(1)(B) of the Act, we will instruct U.S. 
Customs and Border Protection (``CBP'') to continue to suspend 
liquidation of all entries of subject merchandise from Ningo Dafa, the 
Separate Rate Applicants and the PRC-wide entity entered, or withdrawn 
from warehouse, for consumption on or after December 26, 2006, the date 
of publication of the Preliminary Determination. CBP shall continue to 
require a cash deposit or the posting of a bond equal to the estimated 
amount by which the normal value exceeds the U.S. price as shown above.
    The Department continues to find that critical circumstances exist 
for Far Eastern therefore, the Department will direct the CBP suspend 
liquidation of any entries of PSF from the PRC as described in the 
``Scope of Investigation'' section, that are entered, or withdrawn from 
warehouse, for consumption 90 days before the date of publication of 
this notice in the Federal Register. These suspension of liquidation 
instructions will remain in effect until further notice.
    With respect to Cixi Jiangnan, the Department will instruct CBP not 
to suspend liquidation of any entries of PSF from the PRC as described 
in the ``Scope of Investigation'' section, that are entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of this notice in the Federal Register. The Department will 
not require any cash deposit or posting of a bond for Cixi Jiangnan 
when the subject merchandise is produced and exported by Cixi Jiangnan. 
These suspension of liquidation instructions will remain in effect 
until further notice.

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our final determination of 
sales at LTFV. As our final determination is affirmative, in accordance 
with section 735(b)(2) of the Act, within 45 days the ITC will 
determine whether the domestic industry in the United States is 
materially injured, or threatened with material injury, by reason of 
imports or sales (or the likelihood of sales) for importation of the 
subject merchandise. If the ITC determines that material injury or 
threat of material injury does not exist, the proceeding will be 
terminated and all securities posted will be refunded or canceled. If 
the ITC determines that such injury does exist, the Department will 
issue an antidumping duty order directing CBP to assess antidumping 
duties on all imports of the subject merchandise entered, or withdrawn 
from warehouse, for consumption on or after the effective date of the 
suspension of liquidation.

Notification Regarding APO

    This notice also serves as a reminder to the 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. Timely notification of 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. This determination and 
notice are issued and published in accordance with sections 735(d) and 
777(i)(1) of the Act.
    This determination and notice are issued and published in 
accordance with sections 735(d) and 777(i)(1) of the Act.

    Dated: April 10, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.

Appendix I

Changes from the Preliminary Determination

General Comments:

Comment 1: Zeroing/Targeted Dumping
Comment 2: Adjustments to Market Economy Purchases-Foreign Inland 
Freight
Comment 3: Adjustments to Market Economy Purchases-Foreign Brokerage & 
Handling
Comment 4: Adjustments to Market Economy Purchases-Application of PRC 
Duties

Surrogate Value Comments:

Comment 5: Surrogate Value for Brokerage & Handling
Comment 6: Surrogate Value for Waste Inputs
Comment 7: Surrogate Value for Polymer Polyester Staple Fiber Waste
Comment 8: Surrogate Value for Lump, Popcorn or X-ray Film
Comment 9: Surrogate Value for Scrap Waste By-Product
Comment 10: Surrogate Value for Labor
Comment 11: Surrogate Value for Alkali Flake
Comment 12: Calculation of Surrogate Financial Ratios
Comment 13: General Export Subsidy Countries and Market Economy Inputs

Company Specific Comments - Cixi Jiangnan:

Comment 14: Cixi Jiangnan's Sales to Trading Companies
Comment 15: Cixi Jiangnan's International Freight for Its U.S. Sales
Comment 16: Cixi Jiangnan's Indirect Labor
Comment 17: Insurance for Cixi's Market Economy Purchases

Company Specific Comments - Far Eastern:

Comment 18: Far Eastern's Critical Circumstances
Comment 19: Far Eastern's Reported Scrap Offsets

[[Page 19694]]

Comment 20: Far Eastern's Bank Charges
Comment 21: Far Eastern's Market Economy Price for Ethylene Glycol
Comment 22: Far Eastern's Market Economy Price Adjustments for Purified
    Terephthalic Acid (``PTA'')
Comment 23: Far Eastern's Brokerage and Handling Expenses

Company Specific Comments - Ningbo Dafa:

Comment 24: Ningbo Dafa's Consumption of Oils
Comment 25: Ningbo Dafa's Market Economy Purchases and Factor Usage of 
PET Flake
[FR Doc. E7-7386 Filed 4-18-07; 8:45 am]
BILLING CODE 3510-DS-S