Final Results of the Second Administrative Review of the Antidumping Duty Order: Certain Lined Paper Products from the People's Republic of China
Federal Register: December 3, 2009 (Volume 74, Number 231)
Notices
Page 63387-63391
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr03de09-20
DEPARTMENT OF COMMERCE
International Trade Administration
A-570-901
Certain Lined Paper Products From the People's Republic of China:
Notice of Final Results of the Second Administrative Review of the
Antidumping Duty Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') published its preliminary results of administrative review of the antidumping duty order on certain lined paper products (``CLPP'') from the People's
Republic of China (``PRC'') on July 24, 2009. The period of review
(``POR'') is September 1, 2007, through August 31, 2008.
DATE: Effective Date: December 3, 2009.
FOR FURTHER INFORMATION CONTACT: Joy Zhang or Victoria Cho, AD/CVD
Operations, Office 3, Import Administration, International Trade
Administration, Department of Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230; telephone: (202) 482-1168 or (202) 482-5075, respectively.
SUPPLEMENTARY INFORMATION:
Background
On July 24, 2009, the Department published its preliminary results of the second administrative review. See Certain Lined Paper Products from the People's Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review, 74 FR 36662 (July 24, 2009)
(``Preliminary Results''). On August 25, 2009, Watanabe Paper Products
(Shanghai) Co., Ltd., Watanabe Paper Products (Linging) Co., Ltd., and
Hotrock Stationery (Sennzhen) Co., Ltd., (collectively, ``Watanabe'') filed its case brief (``Watanabe Case Brief''). On August 31, 2009, the
Association of American School Paper Suppliers (``petitioner'') filed a rebuttal brief (``Petitioner Rebuttal Brief''). On August 24, 2009,
Watanabe requested a hearing regarding the second administrative review of CLPP from the PRC. The Department conducted the hearing on September 16, 2009. We have conducted this administrative review in accordance with sections 751 and 777(i)(1) of the Tariff Act of 1930, as amended
(``the Act''), and 19 CFR 351.213 and 351.221, as appropriate.
Period of Review
The POR is September 1, 2007, through August 31, 2008.
Scope of the Order
The scope of this order includes certain lined paper products, typically school supplies (for purposes of this scope definition, the actual use of or labeling these products as school supplies or non- school supplies is not a defining characteristic) composed of or including paper that incorporates straight horizontal and/or vertical lines on ten or more paper sheets (there shall be no minimum page requirement for looseleaf filler paper) including but not limited to such products as single- and multi-subject notebooks, composition books, wireless notebooks, looseleaf or glued filler paper, graph paper, and laboratory notebooks, and with the smaller dimension of the paper measuring 6 inches to 15 inches (inclusive) and the larger dimension of the paper measuring 8\3/4\ inches to 15 inches
(inclusive). Page dimensions are measured size (not advertised, stated, or ``tear-out'' size), and are measured as they appear in the product
(i.e., stitched and folded pages in a notebook are measured by the size of the page as it appears in the notebook page, not the size of the unfolded paper). However, for measurement purposes, pages with tapered or rounded edges shall be measured at their longest and widest points.
Subject lined paper products may be loose, packaged or bound using any binding method (other than case bound through the inclusion of binders board, a spine strip, and cover wrap). Subject merchandise may or may not contain any combination of a front cover, a rear cover, and/or backing of any composition, regardless of the inclusion of images or graphics on the cover, backing, or paper. Subject merchandise is within the scope of this order whether or not the lined paper and/or cover are hole punched, drilled, perforated, and/or reinforced. Subject merchandise may contain accessory or informational items including but not limited to pockets, tabs, dividers, closure devices, index cards, stencils, protractors, writing implements, reference materials such as mathematical tables, or printed items such as sticker sheets or miniature calendars, if such items are physically incorporated, included with, or attached to the product, cover and/or backing thereto.
Specifically excluded from the scope of this order are:
Unlined copy machine paper;
Writing pads with a backing (including but not limited to products commonly known as ``tablets,'' ``note pads,'' ``legal pads,'' and ``quadrille pads''), provided that they do not have a front cover
(whether permanent or removable). This exclusion does not apply to such writing pads if they consist of hole-punched or drilled filler paper;
Three-ring or multiple-ring binders, or notebook organizers incorporating such a ring binder provided that they do not include subject paper;
Index cards;
Printed books and other books that are case bound through the inclusion of binders board, a spine strip, and cover wrap;
Newspapers;
Pictures and photographs;
Desk and wall calendars and organizers (including but not limited to such products generally known as ``office planners,'' ``time books,'' and ``appointment books'');
Telephone logs;
Address books;
Columnar pads & tablets, with or without covers, primarily suited for the recording of written numerical business data;
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Lined business or office forms, including but not limited to: pre-printed business forms, lined invoice pads and paper, mailing and address labels, manifests, and shipping log books;
Lined continuous computer paper;
Boxed or packaged writing stationary (including but not limited to products commonly known as ``fine business paper,''
``parchment paper,'' and ``letterhead''), whether or not containing a lined header or decorative lines;
Stenographic pads (``steno pads''), Gregg ruled (``Gregg ruling'' consists of a single- or double-margin vertical ruling line down the center of the page. For a six-inch by nine-inch stenographic pad, the ruling would be located approximately three inches from the left of the book.), measuring 6 inches by 9 inches;
Also excluded from the scope of this order are the following trademarked products:
FlyTMlined paper products: A notebook, notebook organizer, loose or glued note paper, with papers that are printed with infrared reflective inks and readable only by a
FlyTMpen-top computer. The product must bear the valid trademark FlyTM(products found to be bearing an invalidly licensed or used trademark are not excluded from the scope).
ZwipesTM: A notebook or notebook organizer made with a blended polyolefin writing surface as the cover and pocket surfaces of the notebook, suitable for writing using a specially- developed permanent marker and erase system (known as a
ZwipesTMpen). This system allows the marker portion to mark the writing surface with a permanent ink. The eraser portion of the marker dispenses a solvent capable of solubilizing the permanent ink allowing the ink to be removed. The product must bear the valid trademark ZwipesTM(products found to be bearing an invalidly licensed or used trademark are not excluded from the scope).
FiveStar[supreg]AdvanceTM: A notebook or notebook organizer bound by a continuous spiral, or helical, wire and with plastic front and rear covers made of a blended polyolefin plastic material joined by 300 denier polyester, coated on the backside with
PVC (poly vinyl chloride) coating, and extending the entire length of the spiral or helical wire. The polyolefin plastic covers are of specific thickness; front cover is 0.019 inches (within normal manufacturing tolerances) and rear cover is 0.028 inches (within normal manufacturing tolerances). Integral with the stitching that attaches the polyester spine covering, is captured both ends of a 1'' wide elastic fabric band. This band is located 2\3/8\'' from the top of the front plastic cover and provides pen or pencil storage. Both ends of the spiral wire are cut and then bent backwards to overlap with the previous coil but specifically outside the coil diameter but inside the polyester covering. During construction, the polyester covering is sewn to the front and rear covers face to face (outside to outside) so that when the book is closed, the stitching is concealed from the outside.
Both free ends (the ends not sewn to the cover and back) are stitched with a turned edge construction. The flexible polyester material forms a covering over the spiral wire to protect it and provide a comfortable grip on the product. The product must bear the valid trademarks
FiveStar[supreg]AdvanceTM(products found to be bearing an invalidly licensed or used trademark are not excluded from the scope).
FiveStar FlexTM: A notebook, a notebook organizer, or binder with plastic polyolefin front and rear covers joined by 300 denier polyester spine cover extending the entire length of the spine and bound by a 3-ring plastic fixture. The polyolefin plastic covers are of a specific thickness; front cover is 0.019 inches (within normal manufacturing tolerances) and rear cover is 0.028 inches (within normal manufacturing tolerances). During construction, the polyester covering is sewn to the front cover face to face (outside to outside) so that when the book is closed, the stitching is concealed from the outside.
During construction, the polyester cover is sewn to the back cover with the outside of the polyester spine cover to the inside back cover. Both free ends (the ends not sewn to the cover and back) are stitched with a turned edge construction. Each ring within the fixture is comprised of a flexible strap portion that snaps into a stationary post which forms a closed binding ring. The ring fixture is riveted with six metal rivets and sewn to the back plastic cover and is specifically positioned on the outside back cover. The product must bear the valid trademark FiveStar FlexTM(products found to be bearing an invalidly licensed or used trademark are not excluded from the scope).
Merchandise subject to this order is typically imported under headings 4820.10.2020, 4820.10.2030, 4820.10.2040, 4820.10.2050, 4820.10.2060, 4810.22.5044, 4811.90.9090, 4820.10.2010 of the Harmonized Tariff
Schedule of the United States (``HTSUS''). The HTSUS headings are provided for convenience and customs purposes; however, the written description of the scope of this order is dispositive.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties in this review are addressed in the memorandum from John M. Andersen,
Acting Deputy Assistant Secretary for Antidumping and Countervailing
Duty Operations, to Carole A. Showers, Acting Deputy Assistant
Secretary for Policy and Negotiations, Issues and Decisions for the
Final Results of the Second Administrative Review of the Antidumping
Duty Order on Certain Lined Paper Products from the People's Republic of China, dated November 21, 2009 (``Issues and Decision Memorandum''), which is hereby adopted by this notice. A list of the issues which parties raised and to which we responded in the Issues and Decision
Memorandum is attached to this notice as an appendix. The Issues and
Decision Memorandum is a public document which is on file in the
Central Records Unit, Room 1117, of the main Department building, and is accessible on the Web at http://ia.ita.doc.gov/frn. The paper copy and electronic version of the memorandum are identical in content.
Changes Since the Preliminary Results
Based on the comments received from the interested parties, we have made no changes to the Preliminary Results. For the final results, we have adopted our positions in the Preliminary Results. We continue to find that the application of total adverse facts available is warranted for Watanabe pursuant to sections 776(a)(2)(A), (C), and (D) and 776(b) of the Act. For a complete discussion, see the Issues and Decision
Memorandum.
Application of Adverse Facts Available
Section 776(a) of the Act provides that, the Department shall apply
``facts otherwise available'' if (1) necessary information is not on the record, or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the deadlines established, or in the form and manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified as provided by section 782(i) of the Act.
Where the Department determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that the Department will so
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inform the party submitting the response and will, to the extent practicable, provide that party the opportunity to remedy or explain the deficiency. If the party fails to remedy the deficiency within the applicable time limits and subject to section 782(e) of the Act, the
Department may disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act provides that the
Department ``shall not decline to consider information that is submitted by an interested party and is necessary to the determination but does not meet all applicable requirements established by the administering authority'' if the information is timely, can be verified, is not so incomplete that it cannot be used, and if the interested party acted to the best of its ability in providing the information. Where all of these conditions are met, the statute requires the Department to use the information supplied if it can do so without undue difficulties.
Section 776(b) of the Act further provides that the Department may use an adverse inference in applying the facts otherwise available when a party has failed to cooperate by not acting to the best of its ability to comply with a request for information. Such an adverse inference may include reliance on information derived from the petition, the final determination, a previous administrative review, or other information placed on the record. See, e.g., Notice of Final
Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India, 70 FR 54023, 54025-26 (September 13, 2005); Statement of
Administrative Action, reprinted in H.R. Doc. No. 103-216, 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;
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)
(``Nippon''').
Watanabe
As discussed in the Preliminary Results, the Department determined that facts available with an adverse inference was warranted for
Watanabe. Watanabe submitted an incomplete response to the Department's original questionnaire, claiming that because it did not sell subject merchandise to the United States during the POR, it would not respond additionally to Sections A, C and D of the Department's questionnaire, even though entries of its merchandise were made during the POR.
Moreover, the Department extended the deadline for submission in response to Watanabe's request; however, Watanabe stated that it did not intend to submit additional responses. Because Watanabe withheld information, significantly impeded the proceeding and provided information that could not be verified, we find that application of facts available is appropriate under sections 776(a)(2)(A), (B), and
(C) of the Act. We further find that application of adverse facts available (``AFA'') is appropriate under section 776(b) because
Watanabe failed to cooperate to the best of its ability in responding to the Department's requests for information.
Separate Rates
In proceedings involving non-market economy (``NME'') countries, there is a rebuttable presumption that all companies within that country are subject to government control and thus should be assessed a single antidumping duty rate. It is the Department's policy to assign all exporters of subject merchandise in an NME country this single rate unless an exporter demonstrates that it is sufficiently independent so as to be entitled to a separate rate. Exporters can demonstrate this independence through the absence of both de jure and de facto governmental control over export activities. See Notice of Final
Determination of Sales at Less Than Fair Value: Sparklers from the
People's Republic of China, 56 FR 20588 (May 6, 1991), as further developed in 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). It is the Department's practice to require a party to submit evidence that it operates independently of the State-controlled entity in each segment of a proceeding in which it requests separate rate status. The process requires exporters to submit a separate-rate status application. See Tapered Roller Bearings and Parts Thereof,
Finished or Unfinished, from the People's Republic of China: Final
Results of 2005-2006 Administrative Review and Partial Rescission of
Review, 72 FR 56724 (October 4, 2007), Peer Bearing Co. Changshan v.
United States, 587 F.Supp. 2d 1319, 1324-25 (CIT 2008) (affirming the
Department's determination in that review). As discussed in the
Preliminary Results, Watanabe did not respond to the Department's questionnaire regarding separate rate eligibility, or submit a separate rate certification. Watanabe has not demonstrated that it operates free from government control. Therefore, the Department continues to find that Watanabe is part of the PRC-wide entity.
The PRC[dash]Wide Entity
In the Preliminary Results, the Department determined that there were exports of merchandise under review from Watanabe, a PRC producer/ exporter that did not respond to the Department's questionnaire and consequently did not demonstrate its eligibility for separate-rate status. See 74 FR at 36665. As a result, the Department is treating
Watanabe as part of the PRC-wide entity.
Additionally, because we determined that Watanabe is part of the
PRC-wide entity, the PRC-wide entity is under review. Pursuant to section 776(a) of the Act, we further find that because the PRC entity
(including Watanabe) failed to respond to the Department's questionnaires, withheld or failed to provide information in a timely manner or in the form or manner requested by the Department, submitted information that cannot be verified, or otherwise impeded the proceeding, it is appropriate to apply a dumping margin for the PRC- wide entity using the facts otherwise available on the record.
Moreover, by failing to respond to the Department's requests for information, we find that the PRC-wide entity has failed to cooperate by not acting to the best of its ability to comply with the
Department's requests for information in this proceeding, within the meaning of section 776(b) of the Act. Therefore, an adverse inference is warranted in selecting from the facts otherwise available. See
Nippon, 337 F.3d at 1382-83.
Selection of Adverse Facts Available Rate
In deciding which facts to use as AFA, section 776(b) of the Act and 19 CFR 351.308(c)(1) provide that the Department may rely on information derived from (1) the petition, (2) a final determination in the investigation, (3) any previous review or determination, or (4) any other information placed on the record. In selecting a rate for AFA, the Department selects a rate that is sufficiently adverse ``as to effectuate the purpose of the facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.'' See Circular Welded Austenitic
Stainless Pressure Pipe from the People's Republic of China: Final
Determination of Sales at Less Than Fair Value, 74 FR 4913 (January 28, 2009)).
Generally, the Department finds that selecting the highest rate from any segment of the proceeding as AFA is
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appropriate. See, e.g., Certain Cased Pencils from the People's
Republic of China; Notice of Preliminary Results of Antidumping Duty
Administrative Review and Intent to Rescind in Part, 70 FR 76755, 76761
(December 28, 2005). The CIT and the Court of Appeals for the Federal
Circuit have affirmed decisions to select the highest margin from any prior segment of the proceeding as the AFA rate on numerous occasions.
See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190 (Fed.
Cir. 1990) (Rhone Poulenc); NSK Ltd. v. United States, 346 F. Supp. 2d 1312, 1335 (CIT 2004) (upholding the application of an AFA rate which was the highest available dumping margin from a different respondent in an investigation).
As AFA, we have assigned to the PRC-wide entity a rate of 258.21 percent, from the investigation of CLPP from the PRC, which is the highest rate on the record of all segments of this proceeding. See
Notice of Amended Final Determination of Sales at Less Than Fair Value:
Certain Lined Paper Products from the People's Republic of China;
Notice of Antidumping Duty Orders: Certain Lined Paper Products from
India, Indonesia and the People's Republic of China; and Notice of
Countervailing Duty Orders: Certain Lined Paper Products from India and
Indonesia, 71 FR 56949 (September 28, 2006). As explained below, this rate has been corroborated.
Corroboration of Secondary Information
Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources that are reasonably at its disposal. Secondary information is defined as information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise. See SAA at 870. Corroborate means that the Department will satisfy itself that the secondary information to be used has probative value. Id. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used. See
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews: 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, 61 FR 57391, 57392 (November 6, 1996) (unchanged in the final determination), Final Results of Antidumping Duty
Administrative Reviews and Termination in Part: 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, 62 FR 11825 (March 13, 1997).
The AFA rate selected here is from the investigation. This rate was calculated based on information contained in the petition, which was corroborated for the final determination. No additional information has been presented in the current review which calls into question the reliability of the information. See Certain Lined Paper Products from the People's Republic of China: Notice of Final Results of the
Antidumping Duty Administrative Review, 74 FR 17160 (April 14, 2009).
Therefore, the Department finds that the information continues to be reliable. In addition, the AFA rate we are applying is the rate currently in effect for the PRC-wide entity.
Final Results of Review
We determine that the following margin exists for the period
September 1, 2007, through August 31, 2008:
Weighted- average
Producer/manufacturer
margin
(percent)
PRC-wide Entity (which includes Watanabe).................
258.21
Assessment Rates
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
The Department intends to issue assessment instructions to CBP 15 days after the publication date of the final results of this review. We will instruct CBP to liquidate Watanabe's appropriate entries at the PRC- wide rate of 258.21 percent.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon publication of the notice of final results of the administrative review for all shipments of CLPP from the PRC entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) For previously reviewed or investigated companies not listed above that have separate rates, the cash-deposit rate will continue to be the company-specific rate published for the most recent period; (2) for all other PRC exporters of subject merchandise, which have not been found to be entitled to a separate rate, the cash-deposit rate will be PRC-wide rate of 258.21 percent; and (3) for all non-PRC exporters of subject merchandise, the cash-deposit rate will be the rate applicable to the
PRC exporter that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until further notice.
Notification to Importers
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) 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 orders (``APO'') of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these final results and notice in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(4).
Dated: November 23, 2009.
Carole A. Showers,
Acting Deputy Assistant Secretary for Policy and Negotiations.
List of Comments
Comment 1: Whether Subject Merchandise Produced by Watanabe is Subject to the 2007-2008 Review
Comment 2: Whether the Department Correctly Applied Adverse Facts
Available to Watanabe
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Comment 3: Whether the Use of the PRC-Wide Rate is Proper
FR Doc. E9-28769 Filed 12-2-09; 8:45 am
BILLING CODE 3510-DS-P
