[Federal Register: June 18, 2004 (Volume 69, Number 117)]
[Notices]
[Page 34130-34133]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn04-60]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-887]
Final Determination of Sales at Less Than Fair Value:
Tetrahydrofurfuryl Alcohol From the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final determination of sales at less than fair value.
-----------------------------------------------------------------------
EFFECTIVE DATE: June 18, 2004.
FOR FURTHER INFORMATION CONTACT: Catherine Bertrand or Peter Mueller,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue NW.,
Washington, DC 20230; telephone: (202) 482-3207 and (202) 482-5811,
respectively.
Final Determination
We determine that tetrahydrofurfuryl alcohol from the People's
Republic of China (``PRC'') is being, or is likely to be, sold in the
United States at less than fair value (``LTFV''), as provided in
section 735 of the Tariff Act of 1930, as amended (``the Act''). The
estimated margin of dumping is shown in the ``Continuation of
Suspension of Liquidation'' section of this notice.
Case History
We published in the Federal Register the preliminary determination
in this investigation on January 27, 2004. See Notice of Preliminary
Determination of Sales at Less Than Fair Value: Tetrahydrofurfuryl
Alcohol from the People's Republic of China, 69 FR 3887 (January 27,
2004) (``Preliminary Determination''). Since the publication of the
Preliminary Determination, the following events have occurred.
On February 4, 2004, the respondent, Qingdao (F.T.Z.) Wenkem
Trading Company, Ltd. (``QWTC''), submitted its Section D supplemental
questionnaire response. Also on February 4, 2004, the Department
received pre-verification comments from the petitioner.
From February 9 through 12, 2004, the Department conducted a
factors of production verification at Zhucheng Huaxiang Chemical Co.,
Ltd. (``ZHC''). On February 13, 2004, the Department conducted a sales
verification at QWTC.
On February 24, 2004, the petitioner submitted a request for a
public hearing in accordance with 19 CFR 351.310(c). On April 28, 2004,
the petitioner withdrew its request for a hearing. Because the
petitioner was the only party to request a hearing, and because it was
withdrawn in a timely manner, the Department did not conduct a hearing.
On February 27, 2004, the Department received a request from QWTC
for a postponement of the final determination. On March 15, 2004, the
Department postponed the final determination, in accordance with
section 735(a)(2) of the Act by no later than 135 days after the
publication of preliminary determination in the Federal Register.
Therefore, the final determination was postponed until June 10, 2004.
See Notice of Postponement of Final Determination of Antidumping Duty
Investigation: Tetrahydrofurfuryl Alcohol from the People's Republic of
China, 69 FR 12127 (March 15, 2004).
In the Preliminary Determination, we stated that if we made a
change in our normal calculation methodology previous to the final
determination, we would release to interested parties for comment a
preliminary calculation sheet and analysis memorandum using that
methodology. On March 9, 2004, the Department released to the
interested parties its post-preliminary calculation, which included a
factor value memorandum, an analysis memorandum with an attachment, and
a print-out of the log for the margin calculation. See post-preliminary
calculation.
On March 10, 2004, the Department released its factors of
production and sales verification report to interested parties. See
Verification of Factors of Production for Zhucheng Huaxiang Chemical
Co., Ltd. (``ZHC'') and for the Sales of Qingdao Wenkem (F.T.Z.)
Trading Co., Ltd. (``QWTC'') in the Antidumping Duty Investigation of
Tetrahydrofurfuryl Alcohol from the People's Republic of China
(``PRC'') (``Verification Report'').
On March 15, 2004, the petitioner requested an extension for the
time limit for submitting the case briefs and rebuttal briefs. On March
16, 2004, the Department granted interested parties a sixteen-day
extension for submission of the case briefs and explained that the
rebuttal briefs would be due five days thereafter.
On March 19, 2004, QWTC submitted comments to the Department's
post-preliminary calculation.
On March 23, 2004, the petitioner placed on the record public
information for the purpose of providing the Department with additional
information to be used in valuing the factors of production.
On April 5, 2004, the petitioner submitted its case brief with
respect to the sales and factors of production verification and the
Department's Preliminary Determination. On April 5, 2004, QWTC
submitted its ``Comments on the Calculation of Normal Value'' with
respect to the sales and factors of production verification and the
Department's preliminary determination. On April 7, 2004, the
Department placed a memorandum in the file explaining that the
respondent's document titled, ``Comments on the Calculation of Normal
Value,'' was in fact the respondent's case brief. On April 7, 2004, the
Department rejected both the petitioner's case brief and the
respondent's case brief, concluding that the each contained new
information that
[[Page 34131]]
was untimely filed in accordance with section 351.301(b)(1) of the
Department's regulations. Also on April 7, 2004, the Department
withdrew from the record all known copies of the case brief and
returned them the petitioner and respondent, in accordance with section
351.302(d)(2) of the Department's regulations.
On April 8, 2004, the petitioner submitted its revised case brief.
On April 9, 2004, the respondent submitted its revised case brief.
On April 19, 2004, the petitioner submitted a rebuttal brief with
respect to the sales and factors of production verification and the
Department's Preliminary Determination. On April 19, 2004, the
respondent requested an extension for submitting its rebuttal brief. On
April 21, 2004, the Department received, via electronic-mail, a
document containing the respondent's rebuttal brief. On April 22, 2004,
the Department sent a letter to the respondent rejecting its request
for an extension and rejecting the respondent's rebuttal brief.
Following section 351.103(b) of the Department's regulations, the
Department explained in its letter that the extension request and the
rebuttal brief were both improperly filed, as they were not received in
Import Administration's Dockets Center by close of business on April
19, 2004.
Period of Investigation
The period of investigation (``POI'') is October 1, 2002 through
March 31, 2003. This period corresponds to the two most recent fiscal
quarters prior to the month of the filing of the Petition (June 23,
2003). See 19 CFR 351.204(b)(1).
Scope of Investigation
For the purpose of this investigation, the product covered is
tetrahydrofurfuryl alcohol (C5H10O2)
(``THFA''). THFA, a primary alcohol, is a clear, water white to pale
yellow liquid. THFA is a member of the heterocyclic compounds known as
furans and is miscible with water and soluble in many common organic
solvents. THFA is currently classified in the Harmonized Tariff
Schedules of the United States (``HTSUS'') under subheading
2932.13.00.00. Although the HTSUS subheadings are provided for
convenience and for the purposes of the U.S. Customs and Border
Protection (``Customs''), the Department's written description of the
merchandise under investigation is dispositive.
Analysis of Comments Received
All issues raised in the case briefs by the parties to this
investigation are addressed in detail in the Memorandum to James J.
Jochum, Assistant Secretary for Import Administration, from Jeffrey A.
May, Deputy Assistant Secretary for Import Administration, Issues and
Decision Memorandum for the Less Than Fair Value Investigation of
Tetrahydrofurfuryl Alcohol from the People's Republic of China, (June
10, 2004) (``Final Decision Memorandum''), which is hereby adopted by
this notice. A list of the issues which parties raised, and to which we
have responded, all of which are in the Final Decision Memorandum, is
attached to this notice as an appendix. Parties can find a complete
discussion of all issues raised in this investigation and the
corresponding recommendations in this public memorandum, which is on
file in B-099. In addition, a complete version of the Final Decision
Memorandum can be accessed directly on the World Wide Web at http://ia.ita.doc.gov/frn/.
The paper copy and electronic version of the Final
Decision Memorandum are identical in content.
Non-Market Economy Country Status
In our Preliminary Determination, we treated the PRC as a non-
market economy (``NME'') country. The Department has treated the PRC as
a NME country in all past antidumping investigations. See, e.g., Notice
of Final Determination of Sales at Less Than Fair Value: Bulk Aspirin
From the People's Republic of China, 65 FR 33805 (May 25, 2000). A
designation as an NME remains in effect until it is revoked by the
Department. See section 771(18)(C) of the Act. The respondent in this
investigation has not requested a revocation of the PRC's NME status.
We have, therefore, determined to continue to treat the PRC as an NME
country. When the Department is investigating imports from an NME,
section 773(c)(1) of the Act directs us to base the normal value on the
NME producer's factors of production, valued in a comparable market
economy that is a significant producer of comparable merchandise.
Furthermore, no interested party has requested that the THFA
industry in the PRC be treated as a market-oriented industry and no
information has been provided that would lead to such a determination.
Therefore, we have not treated the THFA industry in the PRC as a
market-oriented industry in this investigation.
Separate Rates
In our Preliminary Determination, we found that the respondent met
the criteria for the application of separate, company-specific
antidumping duty rate. For the purpose of the final determination, we
continue to grant a separate, company-specific rate to the respondent.
For a complete discussion of the Department's determination that the
respondent is entitled to a separate rate, please see Memorandum to the
File from Peter Mueller, Case Analyst to Edward C. Yang, Director,
Office IX, Antidumping Duty Investigation of Tetrahydrofurfuryl Alcohol
from the People's Republic of China, (December 22, 2003).
The PRC-Wide Rate
We are continuing to apply the same methodology to our PRC-wide
rate as used in the Preliminary Determination. For a discussion of our
methodology for the PRC-wide rate, please see Memorandum to the File
From Peter Mueller, Case Analyst, to Edward C. Yang, Office Director,
Office IX, Antidumping Duty Investigation of Tetrahydrofurfuryl Alcohol
from the People's Republic of China: PRC-Wide Rate, (June 10, 2004).
Surrogate Country
For purposes of the final determination, we continue to find that
India is the appropriate primary surrogate country for the PRC. For
further discussion and analysis regarding the surrogate country
selection, see the Department's Preliminary Determination.
Verification
As provided in section 782(i) of the Act, we verified the
information submitted by the respondent for use in our final
determination. We used standard verification procedures including
examination of relevant accounting and production records, and original
source documents provided by the respondent. For changes resulting from
the results of verification and from the post-preliminary calculation
see Memorandum to the File, from Peter Mueller, Case Analyst, through
Robert Bolling, Program Manager, Analysis for the Final Determination
of Tetrahydrofurfuryl Alcohol from the People's Republic of China,
(June 10, 2004) (``Final Analysis Memo'').
Facts Available
For purposes of this final determination, we have determined that
the use of facts available is appropriate for certain elements of the
respondent's dumping margin calculations. Section
[[Page 34132]]
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. For a further discussion of the facts available applied
to the respondent, please see the Final Decision Memorandum at Comment
1.
Adverse Facts Available
For purposes of this final determination, we have determined that
the use of adverse facts available is appropriate for certain elements
of the respondent's dumping margin calculations. Section 776(b) of the
Act provides that if the administering authority or the Commission (as
the case may be) 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 or the Commission (as the
case may be), in reaching the applicable determination under this
title, may use an inference that is adverse to the interests of that
party in selecting from among the facts otherwise available. Such
adverse inference may include reliance on information derived from: (1)
The petition; (2) a final determination in the investigation under this
title; (3) any previous review under section 751 or determination under
section 753; or (4) any other information placed on the record.
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 at 870;
Borden, Inc. v. United States, 4 F. Supp. 2d 1221 (CIT 1998);
Mannesmannrohren-Werke AG v. United States, 77 F. Supp. 2d 1302 (CIT
1999). The Court of Appeals for the Federal Circuit, in Nippon Steel
Corporation v. United States, 337 F. 3d 1373, 1380 (Fed. Cir. 2003),
provided an explanation of the ``failure to act to the best of its
ability'' standard, holding that the Department need not show
intentional conduct existed on the part of the respondent, but merely
that a ``failure to cooperate to the best of a respondent's ability''
existed (i.e., information was not provided ``under circumstances in
which it is reasonable to conclude that less than full cooperation has
been shown'').
The record shows that QWTC, in part, failed to cooperate to the
best of its ability, within the meaning of section 776(b) of the Act.
In reviewing the evidence on the record, the Department finds that the
respondent failed to provide requested information at the factor of
production verification for the indirect inputs used to produce the
respondent's self-produced inputs of electricity, steam, hydrogen, and
catalyst. As a general matter, it is reasonable for the Department to
assume that the respondent possessed the records necessary to
participate in the factor of production verification. However, by not
supplying the information the Department requested, the respondent
failed to cooperate to the best of their ability. As the respondent has
failed to cooperate to the best of its ability, we are applying an
adverse inference pursuant to section 776(b) of the Act to estimate the
respondent's consumption of its self-produced hydrogen, steam,
electricity, and catalyst. For a further discussion of the adverse
facts available applied to the respondent, please see Final Decision
Memorandum, at Comments 1, 5, 8, and 9.
Changes Since the Preliminary Determination
Based on our findings at verification, additional information
placed on the record of this investigation, the post-preliminary
calculation, and analysis of comments received, we have made
adjustments to the methodology in calculating the final dumping margin
in this proceeding. For discussions of the specific changes made since
the Preliminary Determination to the final margin programs, please see
Final Analysis Memo.
Surrogate Values
The Department made changes to the starting point and the surrogate
values used to calculate the normal value from the Preliminary
Determination. For a complete discussion of the starting point and the
surrogate values, see Memorandum to the File from Peter Mueller, Case
Analyst, through Robert Bolling, Program Manager, and Edward C. Yang,
Office Director, regarding Factor Valuations for the Final
Determination (``Final Factor Value Memo''), dated June 10, 2004.
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
In accordance with section 735(c)(1)(B) of the Act, we are
directing Customs to continue to suspend liquidation of all entries of
subject merchandise from the PRC, that are entered, or withdrawn from
warehouse, for consumption on or after the date of publication of the
Preliminary Determination. Customs shall continue to require a cash
deposit or posting of a bond equal to the estimated amount by which the
normal value exceeds the U.S. price as shown below. This suspension of
liquidation instructions will remain in effect until further notice.
Final Determination
We determine that the following weighted-average dumping margins
exist for the period October 1, 2002 through March 31, 2003:
Tetrahydrofurfuryl Alcohol From the PRC
------------------------------------------------------------------------
Weighted-
average
Producer/manufacturer/exporter margin
(percent)
------------------------------------------------------------------------
Qingdao (F.T.Z.) Wenkem Trading Company Limited............ 136.86
PRC--Wide Rate............................................. 136.86
------------------------------------------------------------------------
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (``ITC'') of our determination. As our
final determination is affirmative, the ITC will determine, within 45
days, whether these imports are materially injuring, or threaten
material injury to, the U.S. industry. 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 cancelled. If the ITC determines that such injury does
exist, the Department will issue an antidumping duty order directing
Customs officials to assess antidumping duties on all imports of
subject merchandise entered for consumption on or after the effective
date of the suspension of liquidation.
Notification Regarding Administrative Protective Order (``APO'')
This notice also serves as a reminder to parties subject to APO of
their responsibility concerning the disposition of proprietary
information disclosed under APO in accordance
[[Page 34133]]
with section 351.305 of the Department's regulations. Timely
notification of return/destruction of APO materials or conversion to
judicial protective order is hereby requested. Failure to comply with
the terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with
sections 735(d) and 777(i)(1) of the Act.
Dated: June 10, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
Appendix: Issues in the Final Decision Memorandum
Comment 1: The Use of Adverse Facts Available
Comment 2: Starting Point for Calculation of Export Price
Comment 3: Freight Deduction to Calculation of Export Price
Comment 4: Surrogate Values for the Ocean Freight Deduction
Comment 5: Multi-Stage Factors of Production
Comment 6: THFA Production Starting Point
Comment 7: Furfural Value
Comment 8: Values for Dregs and Residue
Comment 9: Value for Hydrogen
Comment 10: Packing Value
[FR Doc. 04-13817 Filed 6-17-04; 8:45 am]
BILLING CODE 3510-25-P