[Federal Register Volume 74, Number 117 (Friday, June 19, 2009)]
[Notices]
[Pages 29172-29174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14359]


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DEPARTMENT OF COMMERCE

International Trade Administration

A-570-894


Certain Tissue Paper Products from the People's Republic of 
China: Affirmative Final Determination of Circumvention of the 
Antidumping Duty Order

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
FINAL DETERMINATION We determine that certain tissue paper products 
exported to the United States from Thailand by Sunlake D[eacute]cor 
Co., Ltd. (Sunlake)\1\ are made from jumbo rolls and/or cut sheets of 
tissue paper produced in the People's Republic of China (PRC), and are 
circumventing the antidumping duty order on certain tissue paper 
products from the PRC, as provided in section 781(b) of the Tariff Act 
of 1930, as amended (the Act). See Notice of Amended Final 
Determination of Sales at Less than Fair Value and Antidumping Duty 
Order: Certain Tissue Paper Products from the People's Republic of 
China, 70 FR 16223 (March 30, 2005) (Order).
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    \1\ Sunlake is a company located in Thailand.

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EFFECTIVE DATE: June 19, 2009.

FOR FURTHER INFORMATION CONTACT: Gemal Brangman or Brian Smith, AD/CVD 
Operations, Office 2, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3773 or (202) 482-1776, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On April 30, 2009, the Department of Commerce (the Department) 
issued its affirmative preliminary determination that certain tissue 
paper products produced in, and exported from, Thailand by Sunlake 
using PRC-origin jumbo rolls and/or cut sheets of tissue paper are 
circumventing the antidumping duty order on tissue paper from the PRC, 
as provided in section 781(b) of the Act. See Certain Tissue Paper from 
the People's Republic of China: Affirmative Preliminary Determination 
of Circumvention of the Antidumping Duty Order, 74 FR 20915 (May 6, 
2009) (Preliminary Determination).
    On May 1, 2009, the Department notified the U.S. International 
Trade Commission (ITC) of its affirmative preliminary determination of

[[Page 29173]]

circumvention of the antidumping duty order on certain tissue paper 
products from the PRC by Sunlake, in accordance with section 781(e) of 
the Act. On May 27, 2009, the ITC notified the Department that it would 
not be requesting consultations concerning the Department's preliminary 
circumvention finding, pursuant to section 781(e) of the Act and 19 CFR 
351.225(f)(7)(i)(B).
    After receipt of notification from the ITC and consistent with the 
Preliminary Determination, on May 29, 2009, we instructed U.S. Customs 
and Border Protection (CBP) to suspend liquidation and to require a 
cash deposit of estimated duties, at the rate of 112.64 percent, on all 
unliquidated entries of certain tissue paper products produced in and 
exported from Thailand by Sunlake that were entered or withdrawn from 
warehouse, for consumption on or after October 21, 2008, the date of 
initiation of the circumvention inquiry.
    We invited interested parties to comment on the Preliminary 
Determination. Comments were due June 5, 2009; however, no interested 
party submitted comments. We have conducted this inquiry in accordance 
with section 781(b) of the Act.

Scope of the Antidumping Duty Order

    The tissue paper products subject to this order are cut-to-length 
sheets of tissue paper having a basis weight not exceeding 29 grams per 
square meter. Tissue paper products subject to this order may or may 
not be bleached, dye-colored, surface-colored, glazed, surface 
decorated or printed, sequined, crinkled, embossed, and/or die cut. The 
tissue paper subject to this order is in the form of cut-to-length 
sheets of tissue paper with a width equal to or greater than one-half 
(0.5) inch. Subject tissue paper may be flat or folded, and may be 
packaged by banding or wrapping with paper or film, by placing in 
plastic or film bags, and/or by placing in boxes for distribution and 
use by the ultimate consumer. Packages of tissue paper subject to this 
order may consist solely of tissue paper of one color and/or style, or 
may contain multiple colors and/or styles.
    The merchandise subject to this order does not have specific 
classification numbers assigned to them under the Harmonized Tariff 
Schedule of the United States (HTSUS). Subject merchandise may be under 
one or more of several different subheadings, including: 4802.30; 
4802.54; 4802.61; 4802.62; 4802.69; 4804.31.1000; 4804.31.2000; 
4804.31.4020; 4804.31.4040; 4804.31.6000; 4804.39; 4805.91.1090; 
4805.91.5000; 4805.91.7000; 4806.40; 4808.30; 4808.90; 4811.90; 
4823.90; 4820.50.00; 4802.90.00; 4805.91.90; 9505.90.40. The tariff 
classifications are provided for convenience and customs purposes; 
however, the written description of the scope of this order is 
dispositive.\2\
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    \2\ On January 30, 2007, at the direction of CBP, the Department 
added the following HTSUS classifications to the AD/CVD module for 
tissue paper: 4802.54.3100, 4802.54.6100, and 4823.90.6700. However, 
we note that the six-digit classifications for these numbers were 
already listed in the scope.
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    Excluded from the scope of this order are the following tissue 
paper products: (1) tissue paper products that are coated in wax, 
paraffin, or polymers, of a kind used in floral and food service 
applications; (2) tissue paper products that have been perforated, 
embossed, or die-cut to the shape of a toilet seat, i.e., disposable 
sanitary covers for toilet seats; (3) toilet or facial tissue stock, 
towel or napkin stock, paper of a kind used for household or sanitary 
purposes, cellulose wadding, and webs of cellulose fibers (HTSUS 
4803.00.20.00 and 4803.00.40.00).

Scope of the Circumvention Inquiry

    The products covered by this inquiry are tissue paper products, as 
described above in the ``Scope of the Antidumping Duty Order'' section, 
which are produced in Thailand from PRC-origin jumbo rolls and/or cut 
sheets of tissue paper, and exported to the United States from Thailand 
by Sunlake.

Statutory Provisions Regarding Circumvention

    Section 781(b) of the Act provides that the Department may find 
circumvention of an antidumping duty order when merchandise of the same 
class or kind subject to the order is completed or assembled in a 
foreign country other than the country to which the order applies. In 
conducting circumvention inquiries under section 781(b) of the Act, the 
Department relies upon the following criteria: (A) merchandise imported 
into the United States is of the same class or kind as any merchandise 
produced in a foreign country that is subject to an antidumping duty 
order; (B) before importation into the United States, such imported 
merchandise is completed or assembled in another foreign country from 
merchandise which is subject to the order or produced in the foreign 
country that is subject to the order; (C) the process of assembly or 
completion in the foreign country referred to in (B) is minor or 
insignificant; (D) the value of the merchandise produced in the foreign 
country to which the antidumping duty order applies is a significant 
portion of the total value of the merchandise exported to the United 
States; and (E) the administering authority determines that action is 
appropriate to prevent evasion of such order.
    The Department's questionnaire issued to Sunlake was designed to 
elicit information for purposes of conducting both qualitative and 
quantitative analyses in accordance with the criteria enumerated in 
section 781(b) of the Act, as outlined above. This approach is 
consistent with our analyses in prior circumvention inquiries. See, 
e.g., Certain Tissue Paper Products From the People's Republic of 
China: Affirmative Final Determination of Circumvention of the 
Antidumping Duty Order, 73 FR 57591 (October 3, 2008); and 
Circumvention and Scope Inquiries on the Antidumping Duty Order on 
Certain Frozen Fish Fillets from the Socialist Republic of Vietnam: 
Partial Affirmative Final Determination of Circumvention of the 
Antidumping Duty Order, Partial Final Termination of Circumvention 
Inquiry and Final Rescission of Scope Inquiry, 71 FR 38608 (July 7, 
2006). Sunlake failed to provide any of the information requested in 
the Department's questionnaire.

Final Determination

    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 sections 782(c)(1) and (e) of the Act; 
(C) significantly impedes a proceeding under the antidumping statute; 
or (D) provides such information but the information cannot be 
verified, the Department shall, subject to section 782(d) of the Act, 
use facts otherwise available in reaching the applicable determination.
    Furthermore, section 776(b) of the Act provides that, if the 
Department finds that an interested party ``has failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information,'' the Department may use information that is adverse to 
the interests of that party as facts otherwise available. 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. Rep. No. 103-316, Vol. 1, at 870 
(1994). Furthermore, ``affirmative evidence of bad faith on the part of 
a respondent is not required before the Department may

[[Page 29174]]

make an adverse inference.'' See Antidumping Duties; Countervailing 
Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997). See also Nippon 
Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
    As discussed in detail in the Preliminary Determination, 74 FR at 
20916-20918, Sunlake refused to respond to the Department's 
questionnaire despite being given ample opportunity to do so by the 
Department. Thus, pursuant to sections 776(a)(2)(A), (B), and (C) of 
the Act, the Department found that the use of facts available was 
appropriate for Sunlake in this circumvention proceeding. Furthermore, 
the Department found that Sunlake had not acted to the best of its 
ability in this circumvention proceeding within the meaning of section 
776(b) of the Act. Accordingly, we preliminarily applied adverse facts 
available (AFA) to Sunlake. Specifically, we preliminarily considered 
all of Sunlake's exports of tissue paper products from Thailand to be 
of PRC origin and concluded that Sunlake is circumventing the Order. We 
also assigned Sunlake a margin of 112.64 percent, which is the highest 
corroborated rate on the record in any completed segment of the tissue 
paper proceeding.
    No party filed comments objecting to the Department's Preliminary 
Determination and no further information has come to the Department's 
attention warranting reconsideration of that determination. Therefore, 
we continue to find that the application of facts available is 
necessary pursuant to section 776(a) of the Act, and that Sunlake has 
failed to act to the best of its ability in this circumvention 
proceeding, warranting the use of an adverse inference under section 
776(b) of the Act. Thus, as AFA, we continue to determine that all of 
Sunlake's exports of tissue paper products from Thailand to the United 
States are, in fact, of PRC origin, and that Sunlake is circumventing 
the Order.
    Accordingly, for this final determination, we are applying to 
Sunlake a margin of 112.64 percent, as AFA. This margin is the highest 
rate on the record in any completed segment of this proceeding (i.e., 
the LTFV investigation, and the first and second administrative 
reviews) and it has been corroborated in accordance with section 776(c) 
of the Act, as discussed in detail in the Preliminary Determination, 74 
FR at 20918.

Suspension of Liquidation and Cash Deposit Requirement

    In accordance with section 19 CFR 351.225(l), the Department will 
direct CBP to continue to suspend liquidation and to require a cash 
deposit of estimated duties, at the rate of 112.64 percent, on all 
unliquidated entries of certain tissue paper products produced in and 
exported from Thailand by Sunlake that were entered, or withdrawn from 
warehouse, for consumption on or after October 21, 2008, the date of 
initiation of the circumvention inquiry.

Notification to Interested Parties

    This notice also serves as the only reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with section 351.305 of the 
Department's regulations. Timely written notification of the return/
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulation and terms of 
an APO is a violation which is subject to sanction.
    This affirmative final circumvention determination is published in 
accordance with section 781(b) of the Act and 19 CFR 351.225.

    Dated: June 12, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
[FR Doc. E9-14359 Filed 6-18-09; 8:45 am]
BILLING CODE 3510-DS-S