[Federal Register: March 27, 2006 (Volume 71, Number 58)]
[Notices]
[Page 15162-15168]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27mr06-50]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-560-818]
Notice of Preliminary Determination of Sales at Less Than Fair
Value: Certain Lined Paper Products from Indonesia
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: March 27, 2006
SUMMARY: We preliminarily determine that imports of certain lined paper
products (``CLPP'') are being, or are likely to be, sold in the United
States at less than fair value, as provided in section 733 of the
Tariff Act of 1930, as amended (``the Act''). Interested parties are
invited to comment on this preliminary determination. We will make our
final determination within 75 days after the date of this preliminary
determination.
FOR FURTHER INFORMATION CONTACT: Brandon Farlander, or Natalie Kempkey,
AD/CVD Operations, Office 1, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
0182 or (202) 482-1698, respectively.
SUPPLEMENTARY INFORMATION:
Background
On October 6, 2005, the Department of Commerce (``the Department'')
initiated the antidumping investigation of CLPP from Indonesia. See
Initiation of Antidumping Duty Investigation: Certain Lined Paper
Products from Indonesia, 70 FR 58374 (October 6, 2005) (``Initiation
Notice''). The Department set aside a period for all interested parties
to raise issues regarding product coverage. See Initiation Notice. The
comments we received are discussed in the ``Scope Comments'' section
below.
On October 31, 2005, the International Trade Commission (``ITC'')
issued its affirmative preliminary determination that there is a
reasonable indication that an industry in the United States is
materially injured by reason of imports from Indonesia of CLPP alleged
to be sold in the United States at less than fair value. See Certain
Lined Paper School Supplies From China, India, and Indonesia
[Investigation Nos. 701-TA-442-443 and 731-TA-1095-1097 (Preliminary)],
(ITC Preliminary Report) 70 FR 62329 ( October 31, 2005).
On October 31, 2005, the Department issued Mini-section A quantity
and value (``Q&V'') questionnaires to six
[[Page 15163]]
potential respondents. On November 4, 2005, we issued an extension to
the deadline for the Q&V from November 9, 2005, to November 15, 2005.
On November 14 and 15, 2005, we issued a memorandum to the file
including the responses of two of the six companies from which we
requested Q&V information. See Memorandum from Natalie Kempkey to the
File entitled ``November 12, 2005, Letter from P.T. Solo Murni Certain
Lined Paper School Supplies from Indonesia;'' see also Memorandum from
Natalie Kempkey to the File entitled ``November 15, 2005, Letter from
P.T. Locomotif Certain Lined Paper School Supplies from Indonesia.'' We
received responses from the rest of the companies on November 15, 2005,
the extended deadline. On November 17, 2005, we concluded that the only
potential respondent was P.T. Pabrik Kertas Tjiwi Kimia T.B.K.
(``TK''). See the Memorandum from Natalie Kempkey to Susan Kuhbach
entitled ``Antidumping Investigation of Certain Lined Paper Products
from Indonesia: Selection of Respondents.'' On November 28, 2005, the
Association of American School Paper Suppliers and its individual
members (MeadWestvaco Corporation; Norcom, Inc.; and Top Flight, Inc.)
(``Petitioner'') alleged that critical circumstances existed with
regard to imports from Indonesia, China, and India.
On November 18, 2005, we issued Sections A, B, C, and D of the
antidumping questionnaire to TK. We received a Section A response from
TK on December 9, 2005. On December 20, 2005, TK asked the Department
to extend the deadlines for responding to Sections B and C and Section
D to January 2 and 9, 2006, respectively. On December 20, 2006, we
granted TK's request. We received the Section B-D responses on the
extended deadlines. On January 26, 2006, the Department sent out its
second supplemental questionnaire for Section D. This response was due
by February 10, 2006. We did not receive a timely response from TK for
this supplemental questionnaire. On February 3, 2006, the Department
issued a third supplemental questionnaire on sections A-C, due by
February 17, 2006. We did not receive a timely response from TK for
this third supplemental questionnaire.
On January 30, 2006, the Department issued a letter to Tri-Coastal
Design Group, Inc. (``Tri-Coastal'') questioning whether Tri-Coastal is
an importer of subject merchandise consistent with 19 CFR. 351.102(b)
and whether Tri-Coastal qualifies as an interested party to this
proceeding consistent with 19 U.S.C. 1677(a). Tri-Coastal responded via
a letter dated February 1, 2006, which the Department received on
February 6, 2006, that it does not qualify as an interested party. Tri-
Coastal subsequently withdrew its appearance in this investigation,
resulting in Tri-Coastal's removal from the APO and Public Service
lists of this proceeding. On March 20, 2006, the Department issued a
Memorandum to the File concerning the Department's conversation with
counsel for TK on February 17, 2006, confirming that TK would not
respond to further Department supplemental questionnaires and that TK
did not expect the Department to verify TK's information on the record.
See Memorandum from Damian Felton to the File, dated March 20, 2006,
and entitled ``Conversation with Counsel for PT. Pabrik Kertas Tjiwi
Kimia Tbk. Regarding Respondent's Withdrawal from Active
Participation.''
Period of Investigation
The period of investigation is July 1, 2004, through June 30, 2005.
Scope of Investigation
The scope of this investigation 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 investigation 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 investigation 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;
Lined business or office forms, including but not limited to:
preprinted 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;
[[Page 15164]]
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 investigation are the
following trademarked products:
FlyTM lined 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 FlyTM pen-
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
ZwipesTM pen). 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[reg]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 .019 inches (within normal
manufacturing tolerances) and rear cover is .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[reg]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 .019 inches (within normal
manufacturing tolerances) and rear cover is .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 investigation is typically imported
under headings 4820.10.2050, 4810.22.5044, 4811.90.9090 of the
Harmonized Tariff Schedule of the United States (HTSUS). During the
investigation additional HTS codes may be identified. The tariff
classifications are provided for convenience and customs purposes;
however, the written description of the scope of the investigation is
dispositive.
Scope Comments
In accordance with the preamble to our regulations (see Antidumping
Duties; Countervailing Duties, 62 FR 27296 (May 19, 1997)), in our
Initiation Notice we set aside a period of time for parties to raise
issues regarding product coverage and encouraged all parties to submit
comments within 20 calendar days of publication of the Initiation
Notice.
On October 28, 2005, Continental Accessory Corporation
(``Continental'') submitted timely scope comments in which it argues
that the Department should issue a ruling that the scope of this
investigation does not cover ``fashion stationery,'' a niche lined
paper product. Continental argues that fashion stationery is
substantially different from subject commodity-grade lined paper
products because of differences in physical appearance, production
methods, costs, consumer expectations, and other factors. Continental
also argues that none of the domestic petitioners has the capability of
manufacturing fashion stationery in the United States.
On November 16, 2005, Petitioner submitted rebuttal comments.
Petitioner argues that what Continental refers to as ``stationery,''
and ``fashion goods,'' is actually nothing more than notebooks.
Contrary to Continental's allegation, Petitioner claims these notebooks
are ``substantially produced'' within the United States. Petitioner
states that the language of the scope is clear in describing the
products for which relief is sought, ``certain lined paper products
regardless of the material used for a front or back cover, regardless
of the inclusion of material on the front and cover, and regardless of
the binding materials.'' Petitioner also argues that Continental's
claim that fashion notebooks ``are not intended to be included with
covered merchandise'' is baseless. Petitioner states that Continental
has provided no evidence to demonstrate that the purchaser views
fashion notebooks as a higher value product. Lastly, Petitioner notes
that the ITC has already rejected Continental's claims that its fashion
books are not within the scope of the domestic like product or should
be treated as a separate like product. See ITC Preliminary Report.
As further discussed in the March 20, 2006, memorandum entitled
``Scope Exclusion Request: Continental Accessory Corporation'' (on file
in the Department's Central Records Unit), we denied Continental's
request that its fashion notebooks be excluded from the scope of the
investigation.
Use of Facts Otherwise Available
For the reasons discussed below, we determine that the use of
adverse facts available (``AFA'') is appropriate for the preliminary
determination with respect
[[Page 15165]]
to TK. See Memorandum to the File from Natalie Kempkey entitled
``Preliminary Determination in the Antidumping Duty Investigation of
Certain Lined Paper Products from Indonesia: Corroboration of Total
Adverse Facts Available Rate,'' dated March 20, 2006.
A. Use of Facts Available
Section 776(a)(2) of the Act provides that, if an interested party
withholds information requested by the administering authority, fails
to provide such information by the deadlines for submission of the
information and in the form or manner requested, subject to subsections
(c)(1) and (e) of section 782 of the Act, significantly impedes a
proceeding under this title, or provides such information but the
information cannot be verified as provided in section 782(i), the
administering authority shall use, subject to section 782(d) of the
Act, facts otherwise available in reaching the applicable
determination. Section 782(d) of the Act provides that, if the
administering authority determines that a response to a request for
information does not comply with the request, the administering
authority shall promptly inform the responding party and provide an
opportunity to remedy the deficient submission. Section 782(e) of the
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, TK did not provide information we requested that is
necessary to calculate an antidumping margin for the preliminary
determination. Specifically, TK did not respond to two of the
Department's supplemental questionnaires. We note that information
requested in those supplemental questionnaires is necessary for the
Department to complete its analysis and calculations. Thus, in reaching
our preliminary determination, pursuant to section 776(a)(2)(A), and
(C) of the Act, we have based TK's dumping margin on facts otherwise
available.
B. Application of Adverse Inferences for Facts Available
In applying adverse inferences to facts otherwise available,
section 776(b) of the Act provides that, if the administering authority
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 from
the administering authority, in reaching the applicable determination
under this title, the administering authority may use an inference
adverse to the interests of that party in selecting from among the
facts otherwise available. See, e.g., 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''). Further, ``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 Antidumping Duties;
Countervailing Duties, 62 FR 27296 (May 19, 1997).
Although the Department provided the respondent with notice of the
consequences of failure to respond adequately to the supplemental
questionnaires in this case, TK did not respond to the supplemental
questionnaires. This constitutes a failure on the part of TK to
cooperate to the best of its ability to comply with a request for
information by the Department within the meaning of section 776 of the
Act. Therefore, the Department has preliminarily determined that, in
selecting from among the facts otherwise available, an adverse
inference is warranted. See, e.g., Notice of Final Determination of
Sales at Less than Fair Value: Circular Seamless Stainless Steel Hollow
Products from Japan, 65 FR 42985 (July 12, 2000) (the Department
applied total AFA where the respondent failed to respond to the
antidumping questionnaire).
C. Selection and Corroboration of Information Used as Facts Available
Where the Department applies AFA because a respondent failed to
cooperate by not acting to the best of its ability to comply with a
request for information, section 776(b) of the Act authorizes the
Department to rely on information derived from the petition, a final
determination, a previous administrative review, or other information
placed on the record. See also 19 CFR 351.308(c) and SAA at 829-831. In
this case, because we are unable to calculate a margin based on TK's
own data and because an adverse inference is warranted, we have
assigned to TK the highest margin alleged in the petition and which we
included in the notice of initiation of this investigation. See
Initiation Notice, 70 FR 58374.
When using facts otherwise available, section 776(c) of the Act
provides that, when the Department relies on secondary information
(such as the petition), it must, to the extent practicable, corroborate
that information from independent sources that are reasonably at its
disposal.
The SAA clarifies that ``corroborate'' means the Department will
satisfy itself that the secondary information to be used has probative
value. See SAA at 870. The Department's regulations state that
independent sources used to corroborate such evidence may include, for
example, published price lists, official import statistics and customs
data, and information obtained from interested parties during the
particular investigation. See 19 CFR 351.308(d) and SAA at 870.
For the purposes of this investigation, to the extent appropriate
information was available, we reviewed the adequacy and accuracy of the
information in the petition during our pre-initiation analysis. See the
September 29, 2005, Office of AD/CVD Operations Initiation Checklist
(Initiation Checklist) on file in Import Administration's Central
Records Unit, Room 1870, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230.
For this preliminary determination, we examined evidence supporting
the calculations in the petition to determine the probative value of
the margins in the petition. In accordance with section 776(c) of the
Act, to the extent practicable, we examined the key elements of the
export-price and normal-value calculations on which the margins in the
petition were based. We find that the estimated margins we set forth in
the Initiation Notice have probative value. See Memorandum to the File
from Natalie Kempkey entitled ``Preliminary Determination in the
Antidumping Duty Investigation of Certain Lined Paper Products from
Indonesia: Corroboration of Total Adverse Facts Available Rate,'' dated
March 20, 2006. Therefore, in selecting
[[Page 15166]]
AFA with respect to TK, we have applied the margin rate of 118.63
percent, the highest estimated dumping margin set forth in the notice
of initiation. See Initiation Notice.
All Others Rate
Section 735(c)(5)(B) of the Act provides that, where the estimated
weighted-average dumping margins established for all exporters and
producers individually investigated are zero or de minimis or are
determined entirely under section 776 of the Act, the Department may
use any reasonable method to establish the estimated ``all others''
rate for exporters and producers not individually investigated. This
provision contemplates that the Department may weight-average margins
other than the zero, de minimis, or facts-available margins to
establish the ``all others'' rate.
For purposes of determining the ``all others'' rate and pursuant to
section 735(c)(5)(B) of the Act, we have calculated a simple average of
the two margin rates from the petition. As such, we shall use the
weighted-average percent of 97.85 percent as the ``all others'' rate.
Critical Circumstances
A. TK
On November 28, 2005, Petitioner requested that the Department make
an expedited finding that critical circumstances exist with respect to
CLPP from Indonesia. Petitioner alleged that there is a reasonable
basis to believe or suspect that critical circumstances exist with
respect to the subject merchandise. Petitioner based its allegation on
evidence of retailers engaging in negotiations that would cause a surge
of imports of subject merchandise into the United States from December
2005 through February 2006 (in advance of the preliminary determination
date) in order to avoid duties.
In accordance with 19 CFR 351.206(c)(2), since this allegation was
filed earlier than the deadline for the Department's preliminary
determination, we must issue our preliminary critical circumstances
determination not later than the preliminary determination. See Policy
Bulletin 98/4 regarding Timing of Issuance of Critical Circumstances
Determinations, 63 FR 55364 (October 15, 1998).
Section 733(e)(1)(A) of the Act provides that the Department will
preliminarily determine that critical circumstances exist if there is a
reasonable basis to believe or suspect that: (i) there is a history of
dumping and material injury by reason of dumped imports in the United
States or elsewhere of the subject merchandise; or (ii) the person by
whom, or for whose account, the merchandise was imported knew or should
have known that the exporter was selling the subject merchandise at
less than its fair value and that there was likely to be material
injury by reason of such sales.
The statute and the SAA are silent as to how we are to make a
finding that there was knowledge that there was likely to be material
injury. Therefore, Congress has left the method of implementing this
provision to the Department's discretion. In determining whether the
relevant statutory criteria have been satisfied, we considered: (i)
Import statistics from the ITC Dataweb, and (ii) the ITC preliminary
injury determination. See ITC Preliminary Report.
To determine whether there is a history of injurious dumping of the
merchandise under investigation, in accordance with section
733(e)(1)(A)(i) of the Act, the Department normally considers evidence
of an existing antidumping duty order on the subject merchandise in the
United States or elsewhere to be sufficient. See Preliminary
Determination of Critical Circumstances: Steel Concrete Reinforcing
Bars From Ukraine and Moldova, 65 FR 70696 (November 27, 2000). Because
we are not aware of any antidumping order in any country on CLPP from
Indonesia, we do not find that a reasonable basis exists to believe or
suspect that there is a history of dumping and material injury by
reason of dumped imports in the United States or elsewhere of the
subject merchandise. For this reason, the Department does not find a
history of injurious dumping of CLPP from Indonesia pursuant to section
733(e)(1)(A)(i) of the Act.
To determine whether the person by whom, or for whose account, the
merchandise was imported knew or should have known that the exporter
was selling the subject merchandise at less than its fair value in
accordance with section 733(e)(1)(A)(ii) of the Act, the Department
normally considers margins of 25 percent or more for export price
sales, or 15 percent or more for constructed export price transactions,
sufficient to impute knowledge of dumping. See Preliminary
Determination of Sales at Less Than Fair Value: Certain Cut-to-Length
Carbon Steel Plate from the People's Republic of China, 62 FR 31972,
31978 (June 11, 1997). For the reasons explained above, we have
assigned a margin of 118.63 percent to TK. Based on this margin, we
have imputed importer knowledge of dumping for TK. See Notice of
Preliminary Determination of Sales at Less Than Fair Value and
Affirmative Preliminary Determination of Critical Circumstances: Wax
and Wax/Resin Thermal Transfer Ribbons from Japan, (TTR from Japan) 68
FR 71072, 71076 (December 22, 2003).
In determining whether there is a reasonable basis to believe or
suspect that an importer knew or should have known that there was
likely to be material injury by reason of dumped imports consistent
with section 733(e)(1)(A)(ii) of the Act, the Department normally will
look to the preliminary injury determination of the ITC. See Notice of
Final Determination of Sales at Less Than Fair Value: Stainless Steel
Sheet and Strip in Coils From Japan, (Stainless Steel from Japan) 64 FR
30573, 30578 (June 8, 1999). The ITC preliminarily found material
injury to the domestic industry due to imports from Indonesia of CLPP,
which are alleged to be sold in the United States at less than fair
value and, on this basis, the Department may impute knowledge of
likelihood of injury to these respondents. See ITC Preliminary Report.
Thus, we determine that the knowledge criterion for ascertaining
whether critical circumstances exist has been satisfied.
Since TK has met the first prong of the critical circumstances test
according to section 733(e)(1)(A) of the Act, we must examine whether
its imports were massive over a relatively short period. Section
733(e)(1)(B) of the Act provides that the Department will preliminarily
determine that critical circumstances exist if there is a reasonable
basis to believe or suspect that there have been massive imports of the
subject merchandise over a relatively short period.
Section 351.206(h)(1) of the Department's regulations provides
that, in determining whether imports of the subject merchandise have
been ``massive,'' the Department normally will examine: (i) The volume
and value of the imports; (ii) seasonal trends; and (iii) the share of
domestic consumption accounted for by the imports. In addition, 19 CFR
351.206(h)(2) provides that an increase in imports of 15 percent during
the ``relatively short period'' of time may be considered ``massive.''
Section 351.206(i) of the Department's regulations defines
``relatively short period'' as normally being the period beginning on
the date the proceeding begins (i.e., the date the petition is filed)
and ending at least three months later. The Department's regulations
also provide, however, that if the
[[Page 15167]]
Department finds that importers, exporters, or producers had reason to
believe, at some time prior to the beginning of the proceeding, that a
proceeding was likely, the Department may consider a period of not less
than three months from that earlier time.
On February 6, 2006, TK filed company-specific monthly import data
for shipments of subject merchandise to the United States for January
2003 through January 2006. However, we are disregarding this
information because, as noted above, TK has withdrawn from the
investigation and we will not be able to verify this data. Therefore,
the Department must base its determination on facts available.
Moreover, because of TK's failure to cooperate, we have made an adverse
inference that there were massive imports from TK over a relatively
short period. See TTR from Japan, 68 FR at 71077.
In this case, the Department is unable to use information supplied
by U.S. Customs and Border Protection (CBP) to corroborate whether
massive imports occurred because the HTS numbers listed in the scope of
the investigation are basket categories that include non-subject
merchandise and, thus, do not permit the Department to make an accurate
analysis. See Stainless Steel from Japan, 64 FR at 30585. In addition,
the SAA states that, ``The fact that corroboration may not be
practicable in a given circumstance will not prevent the agencies from
applying an adverse inference under subsection (b).'' See SAA at 870.
Based upon the above, we preliminarily find critical circumstances
with respect to TK.
B. All Others
It is the Department's normal practice to conduct its critical
circumstances analysis of companies in the ``all others'' group based
on the experience of investigated companies. See Notice of Final
Determination of Sales at Less Than Fair Value: Certain Steel Concrete
Reinforcing Bars from Turkey, 62 FR 9737, 9741 ( March 4, 1997) (the
Department found that critical circumstances existed for the majority
of the companies investigated and, therefore, concluded that critical
circumstances also existed for companies covered by the ``all others''
rate). However, the Department does not automatically extend an
affirmative critical circumstances determination to companies covered
by the ``all others'' rate. See Stainless Steel from Japan, 64 FR at
30585. Instead, the Department considers the traditional critical
circumstances criteria with respect to the companies covered by the
``all others'' rate.
First, in determining whether there is a reasonable basis to
believe or suspect that an importer knew or should have known that the
exporter was selling CLPP at less than fair value, we look to the ``all
others'' rate. See TTR from Japan, 64 FR at 71077. The dumping margin
for the ``all others'' category, 97.85 percent, exceeds the 15 percent
threshold necessary to impute knowledge of dumping consistent with 19
CFR 351.206. Second, based on the ITC's preliminary material injury
determination, we also find that importers knew or should have known
that there would be material injury from the dumped merchandise
consistent with 19 CFR. 351.206. See ITC Preliminary Report.
Finally, with respect to massive imports, we are unable to base our
determination on our findings for TK because our determination for TK
was based on AFA. Consistent with TTR from Japan, 68 FR at 71077, we
have not inferred, as AFA, that massive imports exist for ``all
others'' because, unlike TK, the ``all others'' companies have not
failed to cooperate in this investigation. Therefore, an adverse
inference with respect to shipment levels by the ``all others''
companies is not appropriate.
The approach taken in Notice of Final Determination of Sales at
Less Than Fair Value: Hot-Rolled Flat-Rolled Carbon-Quality Steel
Products from Japan, 64 FR 24239 (May 6, 1999) and Notice of Final
Determinations of Sales at Less Than Fair Value: Certain Cold-Rolled
Flat-Rolled Carbon-Quality Steel Products From Argentina, Japan and
Thailand, 65 FR 5220, 5227 (February 4, 2000), was to examine CBP data
on overall imports from the countries in question to see if the
Department could ascertain whether an increase in shipments occurred
within a relatively short period following the point at which importers
had reason to believe that a proceeding was likely. However, we are
unable to rely on information supplied by CBP because in this
investigation the HTS numbers listed in the scope of the investigation
are basket categories that include non-subject merchandise. Lacking
information on whether there was a massive import surge for the ``all
others'' category, we are unable to determine whether there have been
massive imports of CLPP from the producers included in the ``all
others'' category. See TTR from Japan, 68 FR at 71077. Consequently,
the third criterion necessary for determining affirmative critical
circumstances has not been met. Therefore, we have preliminarily
determined that critical circumstances do not exist for imports of CLPP
from Indonesia for companies in the ``all others'' category.
Suspension of Liquidation
In accordance with section 733(d) of the Act, we are directing CBP
to suspend liquidation of all entries of CLPP from Indonesia that are
entered, or withdrawn from warehouse, for consumption on or after the
date of publication of this notice in the Federal Register. For P.T.
Pabrik Kertas Tjiwi Kimia T.B.K., we are directing CBP to suspend
liquidation of all imports of subject merchandise that are entered or
withdrawn from warehouse, for consumption on or after the date 90 days
prior to the date of publication of this notice in the Federal
Register. See section 733(e)(2) of the Act. We will instruct CBP to
require a cash deposit or the posting of a bond equal to the margins,
as indicated in the chart below. These suspension-of-liquidation
instructions will remain in effect until further notice. The dumping
margins are as follows:
------------------------------------------------------------------------
Margin
Manufacturer or Exporter (percent)
------------------------------------------------------------------------
P.T. Pabrik Kertas Tjiwi Kimia T.B.K......................... 118.63
All Others................................................... 97.85
------------------------------------------------------------------------
International Trade Commission Notification
In accordance with section 733(f) of the Act, we have notified the
ITC of our preliminary determination of sales at less than fair value.
If our final antidumping determination is affirmative, the ITC 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 ITC'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.
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
[[Page 15168]]
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, N.W., Washington, DC
20230. Parties should confirm by telephone the time, date, and place of
the hearing 48 hours before the scheduled time.
Interested parties who wish to request a hearing, or to participate
if one is requested, must submit a written request within 30 days of
the publication of this notice. Requests should specify the number of
participants and provide a list of the issues to be discussed. Oral
presentations will be limited to issues raised in the briefs. We will
make our final determination within 75 days after the date of this
preliminary determination.
This determination is issued and published pursuant to sections
733(f) and 777(i)(1) of the Act.
Dated: March 20, 2006.
David M. Spooner,
Assistant Secretaryfor Import Administration.
[FR Doc. E6-4399 Filed 3-24-06; 8:45 am]
BILLING CODE 3510-DS-S