Preliminary Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances: Certain Polyester Staple Fiber from the People's Republic of China, 77373-77382 [E6-22071]
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Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Notices
sroberts on PROD1PC70 with NOTICES
2006 (‘‘Decision Memo’’), which is
hereby adopted by this notice. The
issues discussed in the Decision Memo
include the likelihood of continuation
or recurrence of dumping and the
magnitude of the margin likely to
prevail if the antidumping duty order
were revoked. Parties can find a
complete discussion of all issues raised
in this sunset review and the
corresponding recommendations in this
public memorandum, which is on file in
room B–099 of the main Department
building. In addition, a complete
version of the Decision Memo can be
accessed directly on the Web at https://
ia.ita.doc.gov/frn. The paper copy and
electronic version of the Decision Memo
are identical in content.
DEPARTMENT OF COMMERCE
International Trade Administration
(A–570–905)
Preliminary Determination of Sales at
Less Than Fair Value and Partial
Affirmative Determination of Critical
Circumstances: Certain Polyester
Staple Fiber from the People’s
Republic of China
Import Administration,
International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: December 26, 2006.
SUMMARY: We preliminarily determine
that certain polyester staple fiber
(‘‘PSF’’) from the People’s Republic of
China (‘‘PRC’’) is being, or is likely to
be, sold in the United States at less than
Preliminary Results of Review
fair value (‘‘LTFV’’), as provided in
section 733 of the Tariff Act of 1930, as
The Department preliminarily
amended (‘‘the Act’’). The estimated
determines that revocation of the
margins of sales at LTFV are shown in
antidumping duty order on OCTG from
the ‘‘Preliminary Determination’’
Mexico is likely to lead to continuation
section of this notice.
or recurrence of dumping at the
FOR FURTHER INFORMATION CONTACT:
following weighted–average margins:
Michael Holton or Paul Walker, AD/
Manufacturers/ProWeighted–Average CVD Operations, Office 9, Import
ducers/Exporters
Margin (Percent)
Administration, International Trade
Administration, U.S. Department of
TAMSA .........................
21.70 Commerce, 14th Street and Constitution
Hylsa .............................
0.62 Avenue, NW, Washington, DC, 20230;
All Others ......................
21.70 telephone: (202) 482–1324 or 482–0413,
respectively.
Any interested party may request a
SUPPLEMENTARY INFORMATION:
hearing within 30 days of publication of
Initiation
this notice in accordance with 19 CFR
351.310(c). Interested parties may
On June 23, 2006, the Department of
submit case briefs no later than 50 days
Commerce (‘‘Department’’) received a
petition on imports of PSF from the PRC
after the date of publication of this
filed in proper form by Dak Americas
notice, in accordance with 19 CFR
LLC., Nan Ya Plastics Corporation
351.309(c)(1)(i). Rebuttal briefs, which
America, and Wellman, Inc.
must be limited to issues raised in the
(‘‘Petitioners’’) on behalf of the domestic
case briefs, may be filed no later than
industry and workers producing PSF.
five days after the case briefs, in
This investigation was initiated on July
accordance with 19 CFR 351.309(d)(1).
13, 2006. See Initiation of Antidumping
Any hearing, if requested, will be held
two days after rebuttal briefs are due, in Duty Investigation: Certain Polyester
Staple Fiber from the People’s Republic
accordance with 19 CFR 351.310(d)(1).
of China, 71 FR 41201 (July 20, 2006)
The Department will issue a notice of
(‘‘Initiation Notice’’). Additionally, in
final results of this sunset review, which
the Initiation Notice, the Department
will include the results of its analysis of
notified parties of the application
issues raised in any such briefs, no later process by which exporters and
than April 27, 2007.
producers may obtain separate–rate
This five–year (‘‘sunset’’) review and
status in non–market economy (‘‘NME’’)
notice are in accordance with sections
investigations. The new process requires
751(c), 752(c), and 777(i)(1) of the Act.
exporters and producers to submit a
separate–rate status application. See
Dated: December 18, 2006.
Policy Bulletin 05.1: Separate–Rates
David M. Spooner,
Practice and Application of
Assistant Secretary for Import
Combination Rates in Antidumping
Administration.
Investigations involving Non–Market
[FR Doc. E6–22076 Filed 12–22–06; 8:45 am]
Economy Countries, (April 5, 2005),
BILLING CODE 3510–DS–S
(‘‘Policy Bulletin 05.1’’) available at
https://ia.ita.doc.gov. However, the
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77373
standard for eligibility for a separate rate
(which is whether a firm can
demonstrate an absence of both de jure
and de facto governmental control over
its export activities) has not changed.
On August 7, 2006, the United States
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 or
threatened with material injury by
reason of imports from the PRC of PSF.
The ITC’s determination was published
in the Federal Register on August 11,
2006. See Investigation No. 731–TA–
1104 (Preliminary), Certain Polyester
Staple Fiber from China, 71 FR 46241
(August 11, 2006).
Scope Comments
The Department also set aside a 20day period from the publication of the
initiation for all interested parties to
raise issues regarding product coverage.
The Department did not receive any
comments from interested parties
regarding product coverage during the
20-day period and subsequently, did not
change the scope in the Initiation
Notice.
Quantity and Value
On July 19, 2006, the Department
requested quantity and value (‘‘Q&V’’)
information from a total of 106
companies that Petitioners identified as
potential producers or exporters of PSF
from the PRC. Also, on July 19, 2006,
the Department sent a letter requesting
Q&V information to the China Bureau of
Fair Trade for Imports & Exports
(‘‘BOFT’’) of the Ministry of Commerce
(‘‘MOFCOM’’) requesting that BOFT
transmit the letter to all companies who
manufacture and export subject
merchandise to the United States, or
produce the subject merchandise for the
companies who were engaged in
exporting the subject merchandise to the
United States during the POI. For a
complete list of all parties from which
the Department requested Q&V
information, see Memorandum to James
C. Doyle, Director, AD/CVD Operations,
Office 9, from Michael Holton, Sr.
International Trade Compliance
Analyst, AD/CVD Operations, Office 9:
Selection of Respondents for the
Antidumping Investigation of Polyester
Staple Fiber from the People’s Republic
of China, dated September 18, 2006,
(‘‘Respondent Selection
Memorandum’’). Between August 8,
2006, and August 21, 2006, the
Department received Q&V responses
from 19 interested parties. The
Department did not receive any type of
communication from BOFT regarding its
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request for Q&V information. See
Respondent Selection Memorandum at
1.
On September 18, 2006, the
Department selected Cixi Jiangnan
Chemical Fiber Co., Ltd. (‘‘Cixi
Jiangnan’’), Far Eastern Industries
(Shanghai) Ltd. (‘‘Far Eastern’’) and
Ningbo Dafa Chemical Fiber Co., Ltd.
(‘‘Ningbo Dafa’’) as mandatory
respondents in this investigation. See
Respondent Selection Memorandum at
4.
Surrogate Country
On September 28, 2006, the
Department determined that India,
Indonesia, Sri Lanka, the Philippines,
and Egypt are countries comparable to
the PRC in terms of economic
development. See Memorandum from
Ron Lorentzen, Director, Office of
Policy, to Alex Villanueva, Program
Manager, China/NME Group, Office 9:
Antidumping Investigation of Certain
Polyester Staple Fiber from the People’s
Republic of China (PRC): Request for a
List of Surrogate Countries, dated
September 28, 2006.
On October 5, 2006, the Department
requested comments on the surrogate
country selection from the interested
parties in these reviews. Petitioners
submitted surrogate country comments
on October 27, 2006. Far Eastern
submitted surrogate country comments
on November 9, 2006. On November 20,
2006, Petitioners submitted rebuttal
surrogate country comments. No other
interested parties commented on the
selection of a surrogate country. For a
detailed discussion of the selection of
the surrogate country, see ‘‘Surrogate
Country’’ section below, and the
Memorandum to the File through James
C. Doyle, Director, AD/CVD Operations,
Office 9, from Alex Villanueva, Program
Manager, AD/CVD Operations, Office 9:
Antidumping Duty Investigation of
Polyester Staple Fiber from the People’s
Republic of China: Selection of a
Surrogate Country, dated December 15,
2006 (‘‘Surrogate Country
Memorandum’’).
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Separate Rates Applications
Between August 16, 2006, and August
21, 2006, we received separate–rate
applications from seventeen companies,
including the mandatory respondents:
Cixi Jiangnan, Far Eastern and Ningbo
Dafa. On September 13, 2006, and
September 14, 2006, we received
applications from Hangzhou Taifu
Textile Fiber Co., Ltd. (‘‘Hangzhou
Taifu’’) and Zhejiang Anshun Pettechs
Fibre Co., Ltd., respectively.
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Questionnaires
On September 6, 2006, the
Department requested comments from
all interested parties on proposed
product characteristics and model
match criteria to be used in the
designation of control numbers
(‘‘CONNUMs’’) to be assigned to the
subject merchandise. The Department
received comments from Cixi Jiangnan,
Far Eastern, Springs Global US, Inc.
(‘‘Springs Global’’) and Petitioners. The
Department also received rebuttal
comments from Ningbo Dafa. On
September 20, 2006, the Department
issued its sections A, C, D, and E,
questionnaire with product
characteristics and model match criteria
used in the designation of CONNUMs
and assigned to the merchandise under
consideration. On November 27, 2006,
the Department requested supplemental
information from Hangzhou Taifu. The
Department issued supplemental
questionnaires to Cixi Jiangnan, Far
Eastern, and Ningbo Dafa between
October and November 2006, and
received responses between October and
December 2006. On December 7 and 8,
2006, Petitioners submitted Comments
on Cixi Jiangnan’s, Far Eastern’s and
Ningbo Dafa’s December 4, 2006,
supplemental questionnaires responses.
On December 11, 2006, Cixi Jiangnan,
Far Eastern and Ningbo Dafa responded
to Petitioners’ comments. The
Department was unable to fully consider
Petitioners’ December 7 and 8, 2006,
comments and respondents’ December
11, 2006, comments because they were
filed less than 10 days before the
preliminary determination.
Surrogate Value Comments
On November 9, 2006, Petitioners, Far
Eastern, Cixi Jiangnan and Ningbo Dafa
submitted comments on surrogate
information with which to value the
factors of production in this proceeding.
On November 20, 2006, Petitioners filed
rebuttal comments on surrogate
information with which to value the
factors of production in this proceeding.
On December 4, 2006, Ningbo Dafa
submitted additional surrogate value
comments.
Critical Circumstances
On September 29, 2006, Petitioners
alleged that there is a reasonable basis
to believe or suspect critical
circumstances exist with respect to the
antidumping investigation of PSF from
the PRC. On October 5, 2006, the
Department issued questionnaires
requesting data for monthly exports to
the United States from January 2003
through September 2006 from Cixi
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Jiangnan, Far Eastern and Ningbo Dafa,
and received responses on October. For
a detailed discussion, please see the
‘‘Critical Circumstances’’ section below.
Postponement of Preliminary
Determination
On November 16, 2006, the
Department informed Petitioners, Cixi
Jiangnan, Far Eastern, and Ningbo Dafa
of our intent to postpone the
preliminary determination pursuant to
section 733(c)(1)(B)(i) of the Act by
fifteen days to December 15, 2006. On
December 5, 2006, the Department
published a postponement of the
preliminary antidumping duty
determination on PSF from the PRC. See
Notice of Postponement of Preliminary
Determination of Antidumping Duty
Investigation: Certain Polyester Staple
Fiber from the People’s Republic of
China, 71 FR 70508 (December 5, 2006).
Period of Investigation
The period of investigation (‘‘POI’’) is
October 1, 2006, through March 31,
2006. This period corresponds to the
two most recent fiscal quarters prior to
the month of the filing of the petition
(June 23, 2006). See 19 CFR
351.204(b)(1).
Scope of Investigation
The merchandise subject to this
proceeding is synthetic staple fibers, not
carded, combed or otherwise processed
for spinning, of polyesters measuring
3.3 decitex (3 denier, inclusive) or more
in diameter. This merchandise is cut to
lengths varying from one inch (25 mm)
to five inches (127 mm). The subject
merchandise may be coated, usually
with a silicon or other finish, or not
coated. PSF is generally used as stuffing
in sleeping bags, mattresses, ski jackets,
comforters, cushions, pillows, and
furniture.
The following products are excluded
from the scope: (1) PSF of less than 3.3
decitex (less than 3 denier) currently
classifiable in the Harmonized Tariff
Schedule of the United States
(‘‘HTSUS’’) at subheading 5503.20.0025
and known to the industry as PSF for
spinning and generally used in woven
and knit applications to produce textile
and apparel products; (2) PSF of 10 to
18 denier that are cut to lengths of 6 to
8 inches and that are generally used in
the manufacture of carpeting; and (3)
low–melt PSF defined as a bi–
component fiber with an outer, non–
polyester sheath that melts at a
significantly lower temperature than its
inner polyester core (classified at
HTSUS 5503.20.0015).
Certain PSF is classifiable under the
HTSUS subheadings 5503.20.0045 and
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5503.20.0065. Although the HTSUS
subheadings are provided for
convenience and customs purposes, the
written description of the merchandise
under the orders is dispositive.
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Non–Market-Economy Country
For purposes of initiation, Petitioners
submitted LTFV analyses for the PRC as
a non–market economy. See Initiation
Notice, 71 FR at 41203. The Department
considers the PRC to be a NME country.
In accordance with section 771(18)(C)(i)
of the Act, any determination that a
foreign country is an NME country shall
remain in effect until revoked by the
administering authority. See Tapered
Roller Bearings and Parts Thereof,
Finished and Unfinished, (‘‘TRBs’’)
From the People’s Republic of China:
Preliminary Results 2001–2002
Administrative Review and Partial
Rescission of Review, 68 FR 7500
(February 14, 2003), unchanged in Final
Results of 2001–2002 Administrative
Review: TRBs from the People’s
Republic of China, 68 FR 70488
(December 18, 2003). No party has
challenged the designation of the PRC as
an NME country in this investigation.
Therefore, we have treated the PRC as
an NME country for purposes of this
preliminary determination.
Surrogate Country
When the Department is investigating
imports from an NME, section 773(c)(1)
of the Act directs it to base normal
value, in most circumstances, on the
NME producer’s factors of production
valued in a surrogate market–economy
country or countries considered to be
appropriate by the Department. In
accordance with section 773(c)(4) of the
Act, in valuing the factors of
production, the Department shall
utilize, to the extent possible, the prices
or costs of factors of production in one
or more market–economy countries that
are at a level of economic development
comparable to that of the NME country
and are significant producers of
comparable merchandise. The sources
of the surrogate values we have used in
this investigation are discussed under
the normal value section below.
As detailed in the Surrogate Country
Memorandum, the Department has
preliminarily selected India as the
surrogate country on the basis that: (1)
it is a significant producer of
comparable merchandise; (2) it is at a
similar level of economic development
pursuant to 733(c)(4) of the Act; and (3)
we have reliable data from India that we
can use to value the factors of
production. Thus, we have calculated
normal value using Indian prices when
available and appropriate to value Cixi
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Jiangnan’s, Far Eastern’s and Ningbo
Dafa’s factors of production. See
Memorandum to the File from Paul
Walker, through Alex Villanueva,
Program Manager, AD/CVD Operations,
Office 9, and James C. Doyle, Director,
AD/CVD Operations, Office 9: Certain
Polyester Staple Fiber from the People’s
Republic of China: Surrogate Values for
the Preliminary Determination, dated
December 15, 2006 (‘‘Factor Value
Memorandum’’).
In accordance with 19 CFR
351.301(c)(3)(i), for the final
determination in an antidumping
investigation, interested parties may
submit publicly available information to
value the factors of production within
40 days after the date of publication of
the preliminary determination.
Affiliations
Based on the evidence on the record
in this investigation and based on the
evidence presented in Far Eastern’s
questionnaire responses, we
preliminarily find that Far Eastern is
affiliated with Far Eastern Polychem
Industries (‘‘FEPI’’), WuHan Far Eastern
Industrial Trading Ltd. (‘‘WHFE’’),
Alberta & Orient Co., Ltd (Canada)
(‘‘A&O’’), Yuang Ding Investment Co.
Ltd. (‘‘YDIC’’), Everest Investment
(Holding) Limited (‘‘EIHL’’), Everest
Textile Co. Ltd. (‘‘Everest Textile’’), Far
Eastern Industrial (Suzhou) Ltd.
(‘‘FEIZ’’), Far Eastern Industrial (Wuxi)
Ltd. (‘‘FEIW’’) and Far Eastern Textiles
(Taiwan) Ltd.’s (‘‘FETL’’), in addition to
FETL’s other related parties, pursuant to
sections 771(33)(E), (F), and (G) of the
Act. Additionally, based on the
evidence on the record in this
investigation and presented in Ningbo
Dafa’s questionnaire responses, we
preliminarily find that Ningbo Dafa is
affiliated with Cixi Dafa Chemical Fiber
Co., Ltd., Ferry Fly Foreign Trade Co.,
Ltd. and Worthal Limited Partnership
pursuant to sections 771(33)(E), (F), and
(G) of the Act. We preliminarily find
that it is not necessary to collapse Far
Eastern or Ningbo Dafa with its affiliates
because there is no record evidence
demonstrating that there is significant
potential for manipulation of price or
production with its affiliates. We note
that the Department normally considers
three criteria for collapsing: (i) the level
of common ownership; (ii) the extent to
which managerial employees or board
members of one firm sit on the board of
directors of an affiliated firm; and (iii)
whether operations are intertwined,
such as through the sharing of sales
information, involvement in production
and pricing decisions, the sharing of
facilities or employees, or significant
transactions between the affiliated
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producers. See 19 C.F.R. Sec.
351.401(f)(2).
Separate Rates
In proceedings involving NME
countries, the Department has a
rebuttable presumption that all
companies within the 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 merchandise
subject to investigation in an NME
country this single rate unless an
exporter can demonstrate that it is
sufficiently independent so as to be
entitled to a separate rate. Cixi Jiangnan,
Far Eastern and Ningbo Dafa, and the
Separate–Rate Applicants have
provided company–specific information
to demonstrate that they operate
independently of de jure and de facto
government control, and therefore
satisfy the standards for the assignment
of a separate rate.
We have considered whether each
PRC company that submitted a complete
application is eligible for a separate rate.
The Department’s separate–rate test is
not concerned, in general, with
macroeconomic/border–type controls,
e.g., export licenses, quotas, and
minimum export prices, particularly if
these controls are imposed to prevent
dumping. See Notice of Final
Determination of Sales at Less Than
Fair Value: Certain Preserved
Mushrooms from the People’s Republic
of China, 63 FR 72255, 72256
(December 31, 1998). The test focuses,
rather, on controls over the investment,
pricing, and output decision–making
process at the individual firm level. See
Certain Cut–to-Length Carbon Steel
Plate from Ukraine: Final Determination
of Sales at Less than Fair Value, 62 FR
61754, 61758 (November 19, 1997), and
Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, from
the People’s Republic of China: Final
Results of Antidumping Duty
Administrative Review, 62 FR 61276,
61279 (November 17, 1997).
To establish whether a firm is
sufficiently independent from
government control of its export
activities to be entitled to a separate
rate, the Department analyzes each
entity exporting the subject
merchandise under a test arising from
the 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) (‘‘Sparklers’’),
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) (‘‘Silicon Carbide’’). In
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accordance with the separate–rates
criteria, the Department assigns separate
rates in NME cases only if respondents
can demonstrate the absence of both de
jure and de facto governmental control
over export activities.
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1. Absence of De Jure Control
The Department considers the
following de jure criteria in determining
whether an individual company may be
granted a separate rate: (1) an absence of
restrictive stipulations associated with
an individual exporter’s business and
export licenses; (2) any legislative
enactments decentralizing control of
companies; and (3) other formal
measures by the government
decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Cixi
Jiangnan, Far Eastern, Ningbo Dafa and
the Separate–Rate Applicants supports a
preliminary finding of de jure absence
of governmental control based on the
following: 1) an absence of restrictive
stipulations associated with the
individual exporter’s business and
export licenses; 2) the applicable
legislative enactments decentralizing
control of the companies; and 3) any
other formal measures by the
government decentralizing control of
companies. See Memorandum to James
C. Doyle, Director, AD/CVD Operations,
Office 9, through Alex Villanueva,
Program Manager, AD/CVD Operations,
Office 9: Antidumping Duty
Investigation of Certain Polyester Staple
Fiber from the People’s Republic of
China: Separate Rates Memorandum,
dated December 15, 2006 (‘‘Separate
Rates Memorandum’’).
2. Absence of De Facto Control
Typically the Department considers
four factors in evaluating whether each
respondent is subject to de facto
governmental control of its export
functions: (1) whether the export prices
are set by or are subject to the approval
of a governmental agency; (2) whether
the respondent has authority to
negotiate and sign contracts and other
agreements; (3) whether the respondent
has autonomy from the government in
making decisions regarding the
selection of management; and (4)
whether the respondent retains the
proceeds of its export sales and makes
independent decisions regarding
disposition of profits or financing of
losses. See Silicon Carbide, 59 FR at
22586–87; see also Notice of Final
Determination of Sales at Less Than
Fair Value: Furfuryl Alcohol From the
People’s Republic of China, 60 FR
22544, 22545 (May 8, 1995). The
Department has determined that an
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analysis of de facto control is critical in
determining whether respondents are,
in fact, subject to a degree of
governmental control which would
preclude the Department from assigning
separate rates.
We determine that, for Cixi Jiangnan,
Far Eastern, Ningbo Dafa and the
Separate–Rate Applicants, the evidence
on the record supports a preliminary
finding of de facto absence of
governmental control based on record
statements and supporting
documentation showing the following:
1) each exporter sets its own export
prices independent of the government
and without the approval of a
government authority; 2) each exporter
retains the proceeds from its sales and
makes independent decisions regarding
disposition of profits or financing of
losses; 3) each exporter has the
authority to negotiate and sign contracts
and other agreements; and 4) each
exporter has autonomy from the
government regarding the selection of
management.
Therefore, the evidence placed on the
record of this investigation by Cixi
Jiangnan, Far Eastern, Ningbo Dafa and
the Separate–Rate Applicants
demonstrate an absence of de jure and
de facto government control with
respect to each of the exporter’s exports
of the merchandise under investigation,
in accordance with the criteria
identified in Sparklers and Silicon
Carbide. As a result, for the purposes of
this preliminary determination, we have
granted separate company–specific rates
to Cixi Jiangnan, Far Eastern and Ningbo
Dafa. Additionally, we have granted the
Separate–Rate Applicants a weighted–
average margin for the purposes of this
preliminary determination. See
Separate Rates Memorandum.
The PRC–Wide Entity
The Department has data that
indicates there were more exporters of
PSF from the PRC than those indicated
in the response to our request for Q&V
information during the POI. See
Respondent Selection Memorandum.
We issued our request for Q&V
information to 106 potential Chinese
exporters of the subject merchandise, in
addition to BOFT and MOFCOM.1 We
received only 19 Q&V responses and 3
Q&V responses that were improperly
filed. See Respondent Selection
Memorandum at 1–2. We did not
receive Q&V responses from most of the
companies to which we sent our request
for Q&V information. See Id.
1 For a list of companies to which the Department
sent its request for Q&V information, see
Respondent Selection Memorandum at 1.
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Information on the record of this
investigation indicates that there are
numerous producers/exporters of PSF in
the PRC. Based upon our knowledge of
the volume of imports of subject
merchandise from the PRC, the
companies which responded to the Q&V
questionnaire, the Separate–Rate
Applicants, Cixi Jiangnan, Far Eastern,
and Ningbo Dafa do not account for all
imports into the United States.
Although all exporters were given an
opportunity to provide Q&V
information, not all exporters provided
a response to the Department’s Q&V
letter. Further, the Government of the
PRC did not respond to the
Department’s questionnaire. Therefore,
the Department determines
preliminarily that there were PRC
exporters of the subject merchandise
during the POI from PRC producers/
exporters that did not respond to the
Department’s request for information.
We have treated these PRC producers/
exporters as part of the PRC–wide entity
because they did not qualify for a
separate rate.
Section 776(a)(2) of the Act provides
that, if an interested party (A) withholds
information that has been requested by
the Department, (B) fails to provide such
information in a timely manner or in the
form or manner requested, subject to
subsections 782(c)(1) and (e) of the Act,
(C) significantly impedes a proceeding
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.
Information on the record of this
investigation indicates that the PRC–
wide entity was non–responsive.
Certain companies did not respond to
our request for Q&V information and
did not respond to the Department’s
questionnaire. As a result, pursuant to
section 776(a)(2)(A) of the Act, we find
that the use of facts available is
appropriate to determine the PRC–wide
rate. See Preliminary Determination of
Sales at Less Than Fair Value,
Affirmative Preliminary Determination
of Critical Circumstances and
Postponement of Final Determination:
Certain Frozen Fish Fillets from the
Socialist Republic of Vietnam, 68 FR
4986 (January 31, 2003), unchanged in
Final Determination of Sales at Less
Than Fair Value and Affirmative
Critical Circumstances: Certain Frozen
Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 37116 (June 23,
2003).
Section 776(b) of the Act provides
that, in selecting from among the facts
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otherwise available, the Department
may employ an adverse inference if an
interested party fails to cooperate by not
acting to the best of its ability to comply
with requests for information. See Final
Determination of Sales at Less Than
Fair Value: Certain Cold–Rolled Flat–
Rolled Carbon–Quality Steel Products
from the Russian Federation, 65 FR
5510, 5518 (February 4, 2000); see also
‘‘Statement of Administrative Action,’’
accompanying the URAA, H.R. Rep. No.
103–316, 870 (1994) (‘‘SAA’’). We find
that, because the PRC–wide entity did
not respond to our request for
information, it has failed to cooperate to
the best of its ability. Therefore, the
Department preliminarily finds that, in
selecting from among the facts available,
an adverse inference is appropriate.
Further, section 776(b) of the Act
authorizes the Department to use as
adverse facts available (‘‘AFA’’)
information derived from the petition,
the final determination from the LTFV
investigation, a previous administrative
review, or any other information placed
on the record. In selecting a rate for
adverse facts available, 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 Final Determination of
Sales at Less Than Fair Value: Static
Random Access Memory
Semiconductors from Taiwan, 63 FR
8909, 8932 (February 23, 1998). It is the
Department’s practice to select, as AFA,
the higher of the (a) highest margin
alleged in the petition, or (b) the highest
calculated rate of any respondent in the
investigation. See Final Determination
of Sales at Less Than Fair Value:
Certain Cold–Rolled Carbon Quality
Steel Products from the People’s
Republic of China, 65 FR 34660 (May
21, 2000) and accompanying Issues and
Decision Memorandum, at ‘‘Facts
Available.’’ In the instant investigation,
as AFA, we have assigned to the PRC–
wide entity a margin based on
information in the petition, because the
margin derived from the petition is
higher than the calculated margins for
the selected respondents. In this case,
we have applied the petition rate of
44.30 percent.
Section 776(c) of the Act requires that,
when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation as facts available, it must,
to the extent practicable, corroborate
that information from independent
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sources reasonably at its disposal.2 The
SAA also states that the independent
sources may include published price
lists, official import statistics and
customs data, and information obtained
from interested parties during the
particular investigation. See SAA at 870.
The SAA also clarifies that
‘‘corroborate’’ means that the
Department will satisfy itself that the
secondary information to be used has
probative value. See SAA at 870. As
noted in 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; Preliminary Results of
Antidumping Duty Administrative
Reviews and Partial Termination of
Administrative Reviews, 61 FR 57391,
57392 (November 6, 1996), unchanged
in 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, 2005), to
corroborate secondary information, the
Department will, to the extent
practicable, examine the reliability and
relevance of the information used.
Petitioners’ methodology for
calculating the export price and normal
value in the petition is discussed in the
initiation notice. See Initiation Notice at
41203. To corroborate the AFA margin
selected, we compared the U.S. price
and normal values from the petition to
the U.S. price and normal values for the
respondents. See Memorandum to the
File through Alex Villanueva, Program
Manager, AD/CVD Operations, Office 9:
Corroboration of the PRC–Wide Facts
Available Rate for the Preliminary
Determination in the Antidumping Duty
Investigation of PSF and parts thereof
from the People’s Republic of China,
dated December 15, 2006,
(‘‘Corroboration Memorandum’’).
Accordingly, we find that the rate of
44.30 percent is corroborated within the
meaning of section 776(c) of the Act.
Consequently, we are applying 44.30
percent as the single antidumping rate
to the PRC–wide entity. The PRC–wide
rate applies to all entries of the
merchandise under investigation except
for entries from Cixi Jiangnan, Far
2 Secondary information is described in the SAA
as ‘‘information derived from the petition that gave
rise to the investigation or review, the final
determination concerning subject merchandise, or
any previous review under section 751 concerning
the subject merchandise.’’ See SAA at 870.
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Eastern, Ningbo Dafa and the SeparateRate Applicants.
Margin for the Separate Rate
Applicants
The Department received timely and
complete separate rates applications
from the Separate Rates Applicants,
who are all exporters of PSF from the
PRC, which were not selected as
mandatory respondents in this
investigation. Through the evidence in
their applications, these companies
have demonstrated their eligibility for a
separate rate, as discussed above in the
‘‘Separate Rates’’ section and in the
Separate Rates Memorandum.
Consistent with the Department’s
practice, as the separate rate, we have
established a weighted–average margin
for the Separate Rates Applicants based
on the rates we calculated for Ningbo
Dafa, Cixi Jiangnan and Far Eastern,
excluding any rates that are zero, de
minimis, or based entirely on AFA.
Companies receiving this rate are
identified by name in the ‘‘Suspension
of Liquidation’’ section of this notice.
Date of Sale
Section 351.401(i) of the Department’s
regulations states that, ‘‘in identifying
the date of sale of the subject
merchandise or foreign like product, the
Secretary normally will use the date of
invoice, as recorded in the exporter or
producer’s records kept in the normal
course of business.’’ However, the
Secretary may use a date other than the
date of invoice if the Secretary is
satisfied that a different date better
reflects the date on which the exporter
or producer establishes the material
terms of sale. See 19 CFR 351.401(i); See
also Allied Tube and Conduit Corp. v.
United States, 132 F. Supp. 2d 1087,
1090–1093 (CIT 2001) (‘‘Allied Tube’’).
The date of sale is generally the date on
which the parties agree upon all
substantive terms of the sale. This
normally includes the price, quantity,
delivery terms and payment terms. In
order to simplify the determination of
date of sale for both the respondent and
the Department and in accordance with
19 CFR 351.401(i), the date of sale will
normally be the date of the invoice, as
recorded in the exporter’s or producer’s
records kept in the ordinary course of
business, unless satisfactory evidence is
presented that the exporter or producer
establishes the material terms of sale on
some other date. In other words, the
date of the invoice is the presumptive
date of sale, although this presumption
may be overcome. For instance, in Final
Determination of Sales at Less Than
Fair Value: Polyvinyl Alcohol from
Taiwan, 61 FR 14067 (March 29, 1996),
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the Department used the date of the
purchase order as the date of sale
because the terms of sale were
established at that point.
After examining the questionnaire
responses and the sales documentation
that Cixi Jiangnan, Far Eastern and
Ningbo Dafa placed on the record, we
preliminarily determine that invoice
date is the most appropriate date of sale
for Cixi Jiangnan, Far Eastern and
Ningbo Dafa. In its supplemental section
A response, dated November 16, 2006,
Far Eastern explained that it had
incorrectly stated that it did not
encounter any changes to the material
terms of sale from its purchase orders.
Instead, its original statement should
have read that material terms of the sale
from its commercial invoice had not
changed during the POI. Additionally,
Far Eastern provided several specific
examples where it did encounter
changes to the material terms of sale
from its purchase orders. These
examples included a cancellation of a
sale and order changes that affected the
price, quantity, product types and
shipping destination.
Petitioners, however, claim that the
purchase order date is the most
appropriate date of sale because Far
Eastern stated that it did not encounter
any changes with respect to the material
terms of the sale from its purchase
orders in its original section A
questionnaire response, dated October
12, 2006. Petitioners have requested that
the Department use the purchase order
date because Far Eastern stated that the
terms of sale did not change after the
purchase order was issued.
In Allied Tube, the Court of
International Trade (‘‘CIT’’) found that a
‘‘party seeking to establish a date of sale
other than invoice date bears the burden
of producing sufficient evidence to
’satisfy’ the Department that a different
date better reflects the date on which
the exporter or producer establishes the
material terms of sale.’’’ Allied Tube 132
F. Supp. 2d at 1092.
Therefore, for this preliminary
determination, the Department finds
that based on the information on the
record, Petitioners have failed to rebut
the presumption that the invoice date is
not the appropriate date of sale for Cixi
Jiangnan, Far Eastern or Ningbo Dafa.
Each respondent has provided various
examples of material changes to their
purchase orders during the POI. See
Preliminary Determination of Sales at
Less Than Fair Value: Saccharin From
the People’s Republic of China, 67 FR
79054 (December 27, 2005).
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Fair Value Comparisons
Normal Value
To determine whether sales of PSF to
the United States by Cixi Jiangnan, Far
Eastern and Ningbo Dafa were made at
less than fair value, we compared the
export price (‘‘EP’’) to normal value
(‘‘NV’’), as described in the ‘‘U.S. Price,’’
and ‘‘Normal Value’’ sections of this
notice. We compared NV to weighted–
average EPs in accordance with section
777A(d)(1) of the Act.
Section 773(c)(1) of the Act provides
that the Department shall determine the
NV using a factors–of-production
methodology if the merchandise is
exported from an NME and the
information does not permit the
calculation of NV using home–market
prices, third–country prices, or
constructed value under section 773(a)
of the Act. The Department bases NV on
the FOP because the presence of
government controls on various aspects
of non–market economies renders price
comparisons and the calculation of
production costs invalid under the
Department’s normal methodologies.
During the POI, Far Eastern did not
have production of all types of
merchandise for which it had POI sales.
Consequently, Far Eastern reported in
the factors of production database the
most closely resembling CONNUM
produced during the POI for the
merchandise that was sold, but not
produced during the POI. At the
Department’s request, Far Eastern also
submitted factors of production
information covering the six-month
period prior to the POI for the
merchandise that was sold, but not
produced during the POI, which
included factors of production most
closely resembling the CONNUM
produced during the POI. Therefore, the
Department has determined to use the
additional six-month information
provided by Far Eastern. See Far
Eastern Analysis Memorandum.
In addition, Ningbo Dafa produced
subject merchandise in more than one
facility. Ningbo Dafa has stated that all
subject merchandise sales to the United
States and their respective CONNUMs
may be tied to a single production
facility. The Petitioners have argued that
the Department should calculate normal
value using factors of production from
all of Ningbo Dafa’s production
facilities. However, absent record
information to the contrary, for this
preliminary determination, the
Department has only included the
factors of production from this single
facility in our calculation of normal
value. See Ningbo Dafa Analysis
Memorandum for a more complete
explanation. The Department will
continue to examine this issue for the
final determination.
U.S. Price
Export Price
For Cixi Jiangnan, Far Eastern and
Ningbo Dafa, we based U.S. price on EP
in accordance with section 772(a) of the
Act, because the first sale to an
unaffiliated purchaser was made prior
to importation, and CEP was not
otherwise warranted by the facts on the
record. We calculated EP based on the
packed price from the exporter to the
first unaffiliated customer in the United
States. Where applicable, we deducted
foreign movement expenses, foreign
brokerage and handling expenses, and
international freight expenses from the
starting price (gross unit price), in
accordance with section 772(c) of the
Act.
Where foreign movement or
international ocean freight was provided
by PRC service providers or paid for in
Renminbi (‘‘RMB’’), we valued these
services using surrogate values (see
‘‘Factors of Production’’ section below
for further discussion).
For a complete discussion of specific
respondent calculations of the U.S.
price, see Memorandum to the File from
Michael Holton, Senior Case Analyst:
Program Analysis for the Preliminary
Determination of Antidumping Duty
Investigation of Certain Polyester Staple
Fiber from the People’s Republic of
China: Cixi Jiangnan, dated December
15, 2006 (‘‘Cixi Jiangnan Analysis
Memorandum’’); Memorandum to the
File from Michael Holton, Senior Case
Analyst: Program Analysis for the
Preliminary Determination of
Antidumping Duty Investigation of
Certain Polyester Staple Fiber from the
People’s Republic of China: Far Eastern,
dated December 15, 2006 (‘‘Far Eastern
Analysis Memorandum’’); and
Memorandum to The File from Paul
Walker, Senior Case Analyst,
Investigation of Certain Polyester Staple
Fiber from the People’s Republic of
China: Analysis Memo for Ningbo Dafa
Chemical Fiber Co., Ltd., dated
December 15, 2006 (‘‘Ningbo Dafa
Analysis Memorandum’’).
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Critical Circumstances
On September 29, 2006, Petitioners
alleged that there is a reasonable basis
to believe or suspect critical
circumstances exist with respect to the
antidumping investigation of PSF from
the PRC. On October 19, 2006, Cixi
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Jiangnan, Far Eastern and Ningbo Dafa
submitted information on their exports
from January 2003 through September
2006 as requested by the Department. In
accordance with 19 C.F.R.
§ 351.206(c)(2)(i), because Petitioners
submitted critical circumstances
allegations more than 20 days before the
scheduled date of the preliminary
determination, the Department must
issue preliminary critical circumstances
determinations not later than the date of
the preliminary determination.
Section 733(e)(1) 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: (A)(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; and (B) 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, section 351.206(h)(2) of the
Department’s regulations 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 regulations also provide, however,
that if the 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.
In accordance with Section
733(e)(1)(A)(I) of the Act and as
discussed in the Critical Circumstances
Memorandum, the Department
preliminarily finds that there is a
history of dumping and material injury
by reason of dumped imports in the
United States and elsewhere of the
subject merchandise based on the
existence of foreign antidumping duty
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Jkt 211001
orders of PSF, and the ITC’s preliminary
determination of material injury. See
Memorandum to Stephen Claeys,
Deputy Assistant Secretary, AD/CVD
Operations from James C. Doyle,
Director, AD/CVD Operations, Office 9:
Antidumping Duty Investigation of
Certain Polyester Staple Fiber from the
People’s Republic of China: Preliminary
Negative Determination of Critical
Circumstances (‘‘Critical Circumstance
Memorandum’’).
For the reasons set forth in the Critical
Circumstances Memorandum, we find
that there have been massive imports of
the subject merchandise over a
relatively short period for Far Eastern,
but not for Ningbo Dafa, Cixi Jiangnan,
the Separate Rates Applicants and the
PRC–wide entity. See Critical
Circumstance Memorandum at
Attachment 5–7. We find that some
importers, exporters, or producers knew
or should have known an antidumping
case was pending on PSF imports from
the PRC in March of 2006 because there
is record evidence that many of the
Chinese producers begin planning the
antidumping investigation. Therefore,
we relied on a period of six months as
the period, which is the maximum
duration for the information we have
available at this time, for comparison in
preliminarily determining whether
imports of the subject merchandise have
been massive.
Therefore, given the analysis
summarized above, and described in
more detail in the Critical
Circumstances Memorandum, we
preliminarily determine that critical
circumstances exist for imports of PSF
from exist for Far Eastern, but do not
exist for imports of PSF from Cixi
Jiangnan, Far Eastern, Ningbo Dafa, the
Separate–Rates Applicants and the
PRC–wide entity.
We will make a final determination
concerning critical circumstances for all
producers/ exporters of subject
merchandise from the PRC when we
make our final dumping determination
in this investigation, which is currently
75 days after the preliminary
determination.
Factor Valuation Methodology
In accordance with section 773(c) of
the Act, we calculated NV based on FOP
data reported by respondents for the
POI. To calculate NV, we multiplied the
reported per–unit factor–consumption
rates by publicly available surrogate
values (except as discussed below). In
selecting the surrogate values, we
considered the quality, specificity, and
contemporaneity of the data. As
appropriate, we adjusted input prices by
including freight costs to make them
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77379
delivered prices. Specifically, we added
to Indian import surrogate values a
surrogate freight cost using the shorter
of the reported distance from the
domestic supplier to the factory or the
distance from the nearest seaport to the
factory where appropriate. This
adjustment is in accordance with the
Court of Appeals for the Federal
Circuit’s decision in Sigma Corp. v.
United States, 117 F. 3d 1401, 1407–
1408 (Fed. Cir. 1997). A detailed
description of all surrogate values used
for respondents can be found in the
Factor Value Memorandum and
company–specific analysis
memorandum. Additionally, for
detailed descriptions of all actual values
used for market–economy inputs, see
the company–specific analysis
memoranda dated December 15, 2006.
See Cixi Jiangnan Analysis
Memorandum; Far Eastern Analysis
Memorandum; and Ningbo Dafa
Analysis Memorandum.
For this preliminary determination,
the Department will use Far Eastern’s
reported market economy price of
ethylene glycol from its unaffiliated
supplier. However, the Department will
continue to review whether Far Eastern
is affiliated with its ethylene glycol
supplier. If the Department finds that
Far Eastern and its ethylene glycol
supplier are affiliated, the Department
will consider whether these purchases
were made at arms–length in the final
determination. See Far Eastern Analysis
Memorandum.
For this preliminary determination, in
accordance with the Department’s
practice, we used data from the Indian
Import Statistics in order to calculate
surrogate values for the mandatory
respondents’ material inputs. In
selecting the best available information
for valuing FOP in accordance with
section 773(c)(1) of the Act, the
Department’s practice is to select, to the
extent practicable, surrogate values
which are non–export average values,
most contemporaneous with the POI,
product–specific, and tax–exclusive.
See e.g., Notice of Preliminary
Determination of Sales at Less Than
Fair Value, Negative Preliminary
Determination of Critical Circumstances
and Postponement of Final
Determination: Certain Frozen and
Canned Warmwater Shrimp From the
Socialist Republic of Vietnam, 69 FR
42672, 42682 (July 16, 2004), unchanged
in Final Determination of Sales at Less
Than Fair Value: Certain Frozen and
Canned Warmwater Shrimp from the
Socialist Republic of Vietnam, 69 FR
71005 (December 8, 2004). The record
shows that data in the Indian Import
Statistics represents import data that is
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contemporaneous with the POI,
product–specific, and tax–exclusive.
Where we could not obtain publicly
available information contemporaneous
to the POI with which to value factors,
we adjusted the surrogate values using,
where appropriate, the Indian
Wholesale Price Index (‘‘WPI’’) as
published in the International Financial
Statistics of the International Monetary
Fund.
Furthermore, with regard to the
Indian import–based surrogate values,
we have disregarded import prices that
we have reason to believe or suspect
may be subsidized. We have reason to
believe or suspect that prices of inputs
from Indonesia, South Korea, and
Thailand may have been subsidized. We
have found in other proceedings that
these countries maintain broadly
available, non–industry-specific export
subsidies and, therefore, it is reasonable
to infer that all exports to all markets
from these countries may be subsidized.
See Amended Final Determination of
Sales at Less than Fair Value:
Automotive Replacement Glass
Windshields from the People’s Republic
of China, 67 FR 11670 (March 15, 2002);
see also Notice of Final Determination
of Sales at Less Than Fair Value and
Negative Final Determination of Critical
Circumstances: Certain Color Television
Receivers From the People’s Republic of
China, 69 FR 20594 (April 16, 2004)
(‘‘CTVs from the PRC’’). We are also
directed by the legislative history not to
conduct a formal investigation to ensure
that such prices are not subsidized. See
H.R. Rep. 100–576 at 590 (1988). Rather,
Congress directed the Department to
base its decision on information that is
available to it at the time it makes its
determination. Therefore, we have not
used prices from these countries either
in calculating the Indian import–based
surrogate values or in calculating
market–economy input values. In
instances where a market–economy
input was obtained solely from
suppliers located in these countries, we
used Indian import–based surrogate
values to value the input. See Final
Determination of Sales at Less Than
Fair Value: Certain Automotive
Replacement Glass Windshields From
The People’s Republic of China, 67 FR
6482 (February 12, 2002), and
accompanying Issues and Decision
Memorandum at Comment 1.
For Cixi Jiangnan, Far Eastern, and
Ningbo Dafa, certain inputs into the
production of the merchandise under
investigation were purchased from
market economy suppliers and paid for
in market economy currencies. For these
inputs all purchases were made from a
market economy supplier and paid in a
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16:15 Dec 22, 2006
Jkt 211001
market economy currency, and the
Department has therefore used the
weighted–average POI price
experienced by each respondent for
these inputs. Therefore, we used the
individual market economy prices
experienced by Cixi Jiangnan, Far
Eastern, and Ningbo Dafa when the
inputs were obtained from a market
economy, paid for in a market economy
currency, and was a significant portion
of the total purchases of that input.
The Department used the Indian
Import Statistics to value the raw
material and packing material inputs
that Far Eastern, Cixi Jiangnan, and
Ningbo Dafa used to produce the subject
merchandise during the POI, except
where listed below. Absent adequate
information on the record to value PSF
waste (fiber, ‘‘popcorn’’ and lump), for
this preliminary determination, we are
using an average of three Indian HTS
numbers, 5503.20.00, 3915.90.42 and
3915.90.90, which represent values for
raw PET bottles, finished PSF and
plastic scrap, respectively. We note that
the Department ‘‘need not prove that its
methodology was the only way or even
the best way to calculate surrogate
values for factors of production, as long
as it was a reasonable way.’’ See
Coalition for the Pres. of Am. Brake
Drum and Rotor Aftermakret Mfs. v.
u.S.s., 23 CIT 88, 118, 44 F.Supp.2d 229,
258 (1999); Shakeproof Assembly
Components v. U.S., Slip–Op 06–129
(August 25, 2006). We find that, given
the information on the record, that
averaging HTS numbers 5503.20.00,
3915.90.42 and 3915.90.90 is the most
reasonable way to value PSF waste. For
a detailed description of PSF waste and
all other surrogate values used for
respondents, see Factor Value
Memorandum.
To value electricity and diesel fuel,
the Department used rates from Key
World Energy Statistics 2003, published
by the International Energy Agency.
Because these data were not
contemporaneous to the POI, we
adjusted for inflation using WPI. See
Factor Value Memorandum.
For natural gas, we applied a
surrogate value obtained from the Gas
Authority of India Ltd. website, a
supplier of natural gas in India, covering
the period January through June 2002.
In addition, based on the February 1,
2005, article from Chemical Weekly, we
note that the Petroleum Ministry had
been considering raising the price but
no action was taken. Therefore,
consistent with the Department’s recent
determination in Polyvinyl Alcohol
from the People’s Republic of China, we
took the average of the base and ceiling
prices, added the transportation charge,
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and inflated the calculated value using
the appropriate WPI inflator. See
Surrogate Value Memo and Polyvinyl
Alcohol From the People’s Republic of
China: Final Results of Antidumping
Duty Administrative Review, 71 FR
27991 (May 15, 2006), and
accompanying Issues and Decision
Memorandum at Comment 2.
The Department valued steam
following the methodology used in the
investigation of Certain Tissue Paper
Products and Certain Crepe Paper
Products from the People’s Republic of
China, but updated the natural gas
price. See Factor Value Memorandum
and Notice of Preliminary
Determinations of Sales at Less Than
Fair Value, Affirmative Preliminary
Determination of Critical Circumstances
and Postponement of Final
Determination for Certain Tissue Paper
Products, 69 FR 56407 (September 21,
2004), unchanged in the final
determination, Notice of Final
Determination of Sales at Less Than
Fair Value: Certain Tissue Paper
Products from the People’s Republic of
China, 70 FR 7475 (February 14, 2005).
For direct, indirect, and packing
labor, consistent with 19 CFR
351.408(c)(3), we used the PRC
regression–based wage rate as reported
on Import Administration’s home page,
Import Library, Expected Wages of
Selected NME Countries, revised in
November 2005, https://ia.ita.doc.gov/
wages/. The source of these
wage–rate data on the Import
Administration’s web site is the
Yearbook of Labour Statistics 2002, ILO
(Geneva: 2002), Chapter 5B: Wages in
Manufacturing. Because this regression–
based wage rate does not separate the
labor rates into different skill levels or
types of labor, we have applied the same
wage rate to all skill levels and types of
labor reported by the respondent. See
Factor Value Memorandum.
Because water is essential to the
production process of the subject
merchandise, the Department considers
water to be a direct material input, and
not as overhead, and valued water with
a surrogate value according to our
practice. See Final Determination of
Sales at Less Than Fair Value and
Critical Circumstances: Certain
Malleable Iron Pipe Fittings From the
People’s Republic of China, 68 FR 61395
(October 28, 2003) and, accompanying
Issue and Decision Memorandum at
Comment 11. Although some suppliers
have reported that they obtain water
from a well, we find that whether the
producer pays for water is irrelevant in
determining whether it should be
considered a direct material input.
Further, there is no evidence on the
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Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Notices
record that the Indian producer of
polyester staple fiber from which we are
obtaining an overhead financial ratio
accounts for water as an overhead
expense. The Department valued water
using data from the Maharashtra
Industrial Development Corporation
(www.midcindia.org) since it includes a
wide range of industrial water tariffs.
This source provides 386 industrial
water rates within the Maharashtra
province from June 2003: 193 for the
‘‘inside industrial areas’’ usage category
and 193 for the ‘‘outside industrial
areas’’ usage category. Because the value
was not contemporaneous with the POI,
we adjusted the rate for inflation. See
Factor Value Memorandum.
We used Indian transport information
in order to value the freight–in cost of
the raw materials. The Department
determined the best available
information for valuing truck freight to
be from www.infreight.com. This source
provides daily rates from six major
points of origin to five destinations in
India during the POI. The Department
obtained a price quote on the first day
of each month of the POI from each
point of origin to each destination and
averaged the data accordingly. See
Factor Value Memorandum. Consistent
with the calculation of inland truck
freight, the Department used the same
freight distances used in the calculation
of inland truck freight, as reported by
www.infreight.com to derive a value in
Rupees per kilogram per kilometer. See
Factor Value Memorandum.
The Department used two sources to
calculate a surrogate value for domestic
brokerage expenses. The Department
averaged December 2003–November
2004 data contained in Essar Steel’s
February 28, 2005, public version
response submitted in the AD
administrative review of Hot–Rolled
Carbon Steel Flat Products from India
with October 2002–September 2003 data
contained in Pidilite Industries’ March
9, 2004, public version response
submitted in the AD investigation of
Carbazole Violet Pigment 23 from India
(see Notice of Final Determination of
Sales at Less Than Fair Value:
Carbazole Violet Pigment 23 From
India, 69 FR 67306 (November 17,
2004)). The brokerage expense data
reported by Essar Steel and Pidilite
Industries in their public versions is
ranged data. The Department first
derived an average per–unit amount
from each source. Then the Department
adjusted each average rate for inflation.
Finally, the Department averaged the
two per–unit amounts to derive an
overall average rate for the POI. See
Factor Value Memorandum.
To value marine insurance, the
Department obtained a price quote from
https://www.rjgconsultants.com/
insurance.html, a market–economy
provider of marine insurance. See
Factor Value Memo Memorandum. To
value factory overhead, selling, general,
and administrative expenses, and profit,
we used the audited financial
statements from Indo Rama’s 2005/2006
Annual Report and Reliance Industries
Ltd.’s 2005/2006 Annual Report. See
Factor Value Memorandum.
Currency Conversion
We made currency conversions into
U.S. dollars, in accordance with section
773A(a) of the Act, based on the
exchange rates in effect on the dates of
the U.S. sales as certified by the Federal
Reserve Bank.
Verification
As provided in section 782(i)(1) of the
Act, we intend to verify the information
upon which we will rely in making our
final determination.
77381
Combination Rates
In the Initiation Notice, the
Department stated that it would
calculate combination rates for certain
respondents that are eligible for a
separate rate in this investigation. See
Initiation Notice, 70 FR 35625, 35629.
This change in practice is described in
Policy Bulletin 05.1, available at https://
ia.ita.doc.gov/. The Policy Bulletin 05.1,
states:
‘‘[w]hile continuing the practice of
assigning separate rates only to
exporters, all separate rates that the
Department will now assign in its
NME investigations will be specific
to those producers that supplied the
exporter during the period of
investigation. Note, however, that
one rate is calculated for the
exporter and all of the producers
which supplied subject
merchandise to it during the period
of investigation. This practice
applies both to mandatory
respondents receiving an
individually calculated separate
rate as well as the pool of non–
investigated firms receiving the
weighted–average of the
individually calculated rates. This
practice is referred to as the
application of ‘‘combination rates’’
because such rates apply to specific
combinations of exporters and one
or more producers. The cash–
deposit rate assigned to an exporter
will apply only to merchandise
both exported by the firm in
question and produced by a firm
that supplied the exporter during
the period of investigation.’’ See
Policy Bulletin 05.1 at 6.
Preliminary Determination
The weighted–average dumping
margins are as follows:
PSF FROM THE PRC - WEIGHTED–AVERAGE DUMPING MARGINS
sroberts on PROD1PC70 with NOTICES
Exporter & Producer
Weighted–Average Deposit Rate
Cixi Jiangnan Chemical Co., Ltd. ........................................................................................................
Far Eastern Industries (Shanghai) Ltd. ...............................................................................................
Ningbo Dafa Chemical Fiber Co., Ltd. ................................................................................................
Cixi Sansheng Chemical Fiber Co., Ltd. .............................................................................................
Cixi Santai Chemical Fiber Co., Ltd. ...................................................................................................
Cixi Waysun Chemical Fiber Co., Ltd. ................................................................................................
Hangzhou Best Chemical Fibre Co., Ltd. ............................................................................................
Hangzhou Hanbang Chemical Fibre Co., Ltd., ...................................................................................
Hangzhou Huachuang Co., Ltd. ..........................................................................................................
Hangzhou Sanxin Paper Co., Ltd. .......................................................................................................
Hangzhou Taifu Textile Fiber Co., Ltd. ...............................................................................................
Jiaxang Fuda Chemical Fibre Factory ................................................................................................
Nantong Luolai Chemical Fiber Co. Ltd. .............................................................................................
Nanyang Textile Co., Ltd. ....................................................................................................................
Suzhou PolyFiber Co., Ltd. .................................................................................................................
Xiamen Xianglu Fiber Chemical Co. ...................................................................................................
Zhaoqing Tifo New Fiber Co., Ltd. ......................................................................................................
Zhejiang Anshun Pettechs Fibre Co., Ltd. ..........................................................................................
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77382
Federal Register / Vol. 71, No. 247 / Tuesday, December 26, 2006 / Notices
PSF FROM THE PRC - WEIGHTED–AVERAGE DUMPING MARGINS—Continued
Exporter & Producer
Weighted–Average Deposit Rate
Zhejiang Waysun Chemical Fiber Co., Ltd.. .......................................................................................
PRC–Wide Rate ..................................................................................................................................
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).
Suspension of Liquidation
In accordance with section 733(d) of
the Act, we will instruct U.S. Customs
and Border Protection (‘‘CBP’’) to
suspend liquidation of all entries of PSF
from the PRC as described in the ‘‘Scope
of Investigation’’ section, entered, or
withdrawn from warehouse, for
consumption from Ningo Dafa, Cixi
Jiangnan, the Separate Rate Applicants
and the PRC–wide entity on or after the
date of publication of this notice in the
Federal Register. We will instruct CBP
to require a cash deposit or the posting
of a bond equal to the weighted–average
amount by which the normal value
exceeds U.S. price, as indicated above.
For Far Eastern, we will direct CBP to
suspend liquidation of any entries of
PSF from the PRC as described in the
‘‘Scope of Investigation’’ section, that
are entered, or withdrawn from
warehouse, for consumption on or after
90 days prior to the date of publication
in the Federal Register of our
preliminary determination. The
suspension of liquidation will remain in
effect until further notice.
sroberts on PROD1PC70 with NOTICES
International Trade Commission
Notification
In accordance with section 733(f) of
the Act, we have notified the ITC of our
preliminary affirmative determination of
sales at less than fair value. Section
735(b)(2) of the Act requires the ITC to
make its final determination as to
whether the domestic industry in the
United States is materially injured, or
threatened with material injury, by
reason of imports of PSF, or sales (or the
likelihood of sales) for importation, of
the subject merchandise within 45 days
of our final determination.
Public Comment
Case briefs or other written comments
may be submitted to the Assistant
Secretary for Import Administration no
later than seven days after the date of
the final verification report is issued in
this proceeding and rebuttal briefs
limited to issues raised in case briefs no
later than five days after the deadline
VerDate Aug<31>2005
16:15 Dec 22, 2006
Jkt 211001
date for case briefs. A list of authorities
used and an executive summary of
issues should accompany any briefs
submitted to the Department. This
summary should be limited to five pages
total, including footnotes.
In accordance with section 774 of the
Act, we will hold a public hearing, if
requested, to afford interested parties an
opportunity to comment on arguments
raised in case or rebuttal briefs. If a
request for a hearing is made, we intend
to hold the hearing three days after the
deadline of submission of rebuttal briefs
at the U.S. Department of Commerce,
14th Street and Constitution Ave, NW,
Washington, DC 20230, at a time and
location to be determined. Parties
should confirm by telephone the date,
time, and location of the hearing two
days before the scheduled date.
Interested parties who wish to request
a hearing, or to participate if one is
requested, must submit a written
request to the Assistant Secretary for
Import Administration, U.S. Department
of Commerce, Room 1870, within 30
days after the date of publication of this
notice. See 19 CFR 351.310(c). Requests
should contain the party’s name,
address, and telephone number, the
number of participants, and a list of the
issues to be discussed. At the hearing,
each party may make an affirmative
presentation only on issues raised in
that party’s case brief and may make
rebuttal presentations only on
arguments included in that party’s
rebuttal brief.
We will make our final determination
no later than 75 days after the date of
publication of this preliminary
determination, pursuant to section
735(a) of the Act.
This determination is issued and
published in accordance with sections
733(f) and 777(i)(1) of the Act.
Dated: December 15, 2006.
David M. Spooner,
Assistant Secretary for Import
Administration.
[FR Doc. E6–22071 Filed 12–22–06; 8:45 am]
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DEPARTMENT OF COMMERCE
International Trade Administration
A–570–878
Saccharin from the People’s Republic
of China: Notice of Partial Rescission
of Antidumping Duty Administrative
Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to requests from
interested parties, the Department of
Commerce (‘‘the Department’’) initiated
an administrative review of the
antidumping duty order on saccharin
from the People’s Republic of China
(‘‘PRC’’), covering the period July 1,
2005, through June 30, 2006. Based on
the withdrawal of the requests for
review with respect to two companies,
we are rescinding this administrative
review, in part.
EFFECTIVE DATE: December 26, 2006.
FOR FURTHER INFORMATION CONTACT:
Jennifer Moats, AD/CVD Operations,
Office 8, Import Administration, Room
1870, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Ave, NW, Washington, DC 20230;
telephone: (202) 482–5047.
SUPPLEMENTARY INFORMATION:
AGENCY:
Background
On July 3, 2006, the Department
published a notice of opportunity to
request an administrative review of the
antidumping duty order on saccharin
from the PRC. See Antidumping or
Countervailing Duty Order, Finding, or
Suspended Investigation; Opportunity
To Request Administrative Review, 71
FR 37890, (July 3, 2006). We received
timely requests for review from Amgal
Chemical Products (1989) Ltd.
(‘‘Amgal’’), Shanghai Fortune Chemical
Company, Ltd. (‘‘Shanghai Fortune’’),
and Suzhou Fine Chemical Co. Group
Ltd. (‘‘Suzhou’’).
On August 30, 2006, the Department
published a notice of the initiation of
the administrative review of the
antidumping duty order on saccharin
from the PRC for the period July 1, 2005,
through June 30, 2006. See Initiation of
Antidumping and Countervailing Duty
Administrative Reviews and Request for
E:\FR\FM\26DEN1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 247 (Tuesday, December 26, 2006)]
[Notices]
[Pages 77373-77382]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-22071]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
(A-570-905)
Preliminary Determination of Sales at Less Than Fair Value and
Partial Affirmative Determination of Critical Circumstances: Certain
Polyester Staple Fiber from the People's Republic of China
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
EFFECTIVE DATE: December 26, 2006.
SUMMARY: We preliminarily determine that certain polyester staple fiber
(``PSF'') 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 733 of the Tariff Act of 1930, as
amended (``the Act''). The estimated margins of sales at LTFV are shown
in the ``Preliminary Determination'' section of this notice.
FOR FURTHER INFORMATION CONTACT: Michael Holton or Paul Walker, AD/CVD
Operations, Office 9, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC, 20230; telephone: (202) 482-
1324 or 482-0413, respectively.
SUPPLEMENTARY INFORMATION:
Initiation
On June 23, 2006, the Department of Commerce (``Department'')
received a petition on imports of PSF from the PRC filed in proper form
by Dak Americas LLC., Nan Ya Plastics Corporation America, and Wellman,
Inc. (``Petitioners'') on behalf of the domestic industry and workers
producing PSF. This investigation was initiated on July 13, 2006. See
Initiation of Antidumping Duty Investigation: Certain Polyester Staple
Fiber from the People's Republic of China, 71 FR 41201 (July 20, 2006)
(``Initiation Notice''). Additionally, in the Initiation Notice, the
Department notified parties of the application process by which
exporters and producers may obtain separate-rate status in non-market
economy (``NME'') investigations. The new process requires exporters
and producers to submit a separate-rate status application. See Policy
Bulletin 05.1: Separate-Rates Practice and Application of Combination
Rates in Antidumping Investigations involving Non-Market Economy
Countries, (April 5, 2005), (``Policy Bulletin 05.1'') available at
https://ia.ita.doc.gov. However, the standard for eligibility for a
separate rate (which is whether a firm can demonstrate an absence of
both de jure and de facto governmental control over its export
activities) has not changed.
On August 7, 2006, the United States 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 or threatened with material injury by reason of
imports from the PRC of PSF. The ITC's determination was published in
the Federal Register on August 11, 2006. See Investigation No. 731-TA-
1104 (Preliminary), Certain Polyester Staple Fiber from China, 71 FR
46241 (August 11, 2006).
Scope Comments
The Department also set aside a 20-day period from the publication
of the initiation for all interested parties to raise issues regarding
product coverage. The Department did not receive any comments from
interested parties regarding product coverage during the 20-day period
and subsequently, did not change the scope in the Initiation Notice.
Quantity and Value
On July 19, 2006, the Department requested quantity and value
(``Q&V'') information from a total of 106 companies that Petitioners
identified as potential producers or exporters of PSF from the PRC.
Also, on July 19, 2006, the Department sent a letter requesting Q&V
information to the China Bureau of Fair Trade for Imports & Exports
(``BOFT'') of the Ministry of Commerce (``MOFCOM'') requesting that
BOFT transmit the letter to all companies who manufacture and export
subject merchandise to the United States, or produce the subject
merchandise for the companies who were engaged in exporting the subject
merchandise to the United States during the POI. For a complete list of
all parties from which the Department requested Q&V information, see
Memorandum to James C. Doyle, Director, AD/CVD Operations, Office 9,
from Michael Holton, Sr. International Trade Compliance Analyst, AD/CVD
Operations, Office 9: Selection of Respondents for the Antidumping
Investigation of Polyester Staple Fiber from the People's Republic of
China, dated September 18, 2006, (``Respondent Selection Memorandum'').
Between August 8, 2006, and August 21, 2006, the Department received
Q&V responses from 19 interested parties. The Department did not
receive any type of communication from BOFT regarding its
[[Page 77374]]
request for Q&V information. See Respondent Selection Memorandum at 1.
On September 18, 2006, the Department selected Cixi Jiangnan
Chemical Fiber Co., Ltd. (``Cixi Jiangnan''), Far Eastern Industries
(Shanghai) Ltd. (``Far Eastern'') and Ningbo Dafa Chemical Fiber Co.,
Ltd. (``Ningbo Dafa'') as mandatory respondents in this investigation.
See Respondent Selection Memorandum at 4.
Surrogate Country
On September 28, 2006, the Department determined that India,
Indonesia, Sri Lanka, the Philippines, and Egypt are countries
comparable to the PRC in terms of economic development. See Memorandum
from Ron Lorentzen, Director, Office of Policy, to Alex Villanueva,
Program Manager, China/NME Group, Office 9: Antidumping Investigation
of Certain Polyester Staple Fiber from the People's Republic of China
(PRC): Request for a List of Surrogate Countries, dated September 28,
2006.
On October 5, 2006, the Department requested comments on the
surrogate country selection from the interested parties in these
reviews. Petitioners submitted surrogate country comments on October
27, 2006. Far Eastern submitted surrogate country comments on November
9, 2006. On November 20, 2006, Petitioners submitted rebuttal surrogate
country comments. No other interested parties commented on the
selection of a surrogate country. For a detailed discussion of the
selection of the surrogate country, see ``Surrogate Country'' section
below, and the Memorandum to the File through James C. Doyle, Director,
AD/CVD Operations, Office 9, from Alex Villanueva, Program Manager, AD/
CVD Operations, Office 9: Antidumping Duty Investigation of Polyester
Staple Fiber from the People's Republic of China: Selection of a
Surrogate Country, dated December 15, 2006 (``Surrogate Country
Memorandum'').
Separate Rates Applications
Between August 16, 2006, and August 21, 2006, we received separate-
rate applications from seventeen companies, including the mandatory
respondents: Cixi Jiangnan, Far Eastern and Ningbo Dafa. On September
13, 2006, and September 14, 2006, we received applications from
Hangzhou Taifu Textile Fiber Co., Ltd. (``Hangzhou Taifu'') and
Zhejiang Anshun Pettechs Fibre Co., Ltd., respectively.
Questionnaires
On September 6, 2006, the Department requested comments from all
interested parties on proposed product characteristics and model match
criteria to be used in the designation of control numbers (``CONNUMs'')
to be assigned to the subject merchandise. The Department received
comments from Cixi Jiangnan, Far Eastern, Springs Global US, Inc.
(``Springs Global'') and Petitioners. The Department also received
rebuttal comments from Ningbo Dafa. On September 20, 2006, the
Department issued its sections A, C, D, and E, questionnaire with
product characteristics and model match criteria used in the
designation of CONNUMs and assigned to the merchandise under
consideration. On November 27, 2006, the Department requested
supplemental information from Hangzhou Taifu. The Department issued
supplemental questionnaires to Cixi Jiangnan, Far Eastern, and Ningbo
Dafa between October and November 2006, and received responses between
October and December 2006. On December 7 and 8, 2006, Petitioners
submitted Comments on Cixi Jiangnan's, Far Eastern's and Ningbo Dafa's
December 4, 2006, supplemental questionnaires responses. On December
11, 2006, Cixi Jiangnan, Far Eastern and Ningbo Dafa responded to
Petitioners' comments. The Department was unable to fully consider
Petitioners' December 7 and 8, 2006, comments and respondents' December
11, 2006, comments because they were filed less than 10 days before the
preliminary determination.
Surrogate Value Comments
On November 9, 2006, Petitioners, Far Eastern, Cixi Jiangnan and
Ningbo Dafa submitted comments on surrogate information with which to
value the factors of production in this proceeding. On November 20,
2006, Petitioners filed rebuttal comments on surrogate information with
which to value the factors of production in this proceeding. On
December 4, 2006, Ningbo Dafa submitted additional surrogate value
comments.
Critical Circumstances
On September 29, 2006, Petitioners alleged that there is a
reasonable basis to believe or suspect critical circumstances exist
with respect to the antidumping investigation of PSF from the PRC. On
October 5, 2006, the Department issued questionnaires requesting data
for monthly exports to the United States from January 2003 through
September 2006 from Cixi Jiangnan, Far Eastern and Ningbo Dafa, and
received responses on October. For a detailed discussion, please see
the ``Critical Circumstances'' section below.
Postponement of Preliminary Determination
On November 16, 2006, the Department informed Petitioners, Cixi
Jiangnan, Far Eastern, and Ningbo Dafa of our intent to postpone the
preliminary determination pursuant to section 733(c)(1)(B)(i) of the
Act by fifteen days to December 15, 2006. On December 5, 2006, the
Department published a postponement of the preliminary antidumping duty
determination on PSF from the PRC. See Notice of Postponement of
Preliminary Determination of Antidumping Duty Investigation: Certain
Polyester Staple Fiber from the People's Republic of China, 71 FR 70508
(December 5, 2006).
Period of Investigation
The period of investigation (``POI'') is October 1, 2006, through
March 31, 2006. This period corresponds to the two most recent fiscal
quarters prior to the month of the filing of the petition (June 23,
2006). See 19 CFR 351.204(b)(1).
Scope of Investigation
The merchandise subject to this proceeding is synthetic staple
fibers, not carded, combed or otherwise processed for spinning, of
polyesters measuring 3.3 decitex (3 denier, inclusive) or more in
diameter. This merchandise is cut to lengths varying from one inch (25
mm) to five inches (127 mm). The subject merchandise may be coated,
usually with a silicon or other finish, or not coated. PSF is generally
used as stuffing in sleeping bags, mattresses, ski jackets, comforters,
cushions, pillows, and furniture.
The following products are excluded from the scope: (1) PSF of less
than 3.3 decitex (less than 3 denier) currently classifiable in the
Harmonized Tariff Schedule of the United States (``HTSUS'') at
subheading 5503.20.0025 and known to the industry as PSF for spinning
and generally used in woven and knit applications to produce textile
and apparel products; (2) PSF of 10 to 18 denier that are cut to
lengths of 6 to 8 inches and that are generally used in the manufacture
of carpeting; and (3) low-melt PSF defined as a bi-component fiber with
an outer, non-polyester sheath that melts at a significantly lower
temperature than its inner polyester core (classified at HTSUS
5503.20.0015).
Certain PSF is classifiable under the HTSUS subheadings
5503.20.0045 and
[[Page 77375]]
5503.20.0065. Although the HTSUS subheadings are provided for
convenience and customs purposes, the written description of the
merchandise under the orders is dispositive.
Non-Market-Economy Country
For purposes of initiation, Petitioners submitted LTFV analyses for
the PRC as a non-market economy. See Initiation Notice, 71 FR at 41203.
The Department considers the PRC to be a NME country. In accordance
with section 771(18)(C)(i) of the Act, any determination that a foreign
country is an NME country shall remain in effect until revoked by the
administering authority. See Tapered Roller Bearings and Parts Thereof,
Finished and Unfinished, (``TRBs'') From the People's Republic of
China: Preliminary Results 2001-2002 Administrative Review and Partial
Rescission of Review, 68 FR 7500 (February 14, 2003), unchanged in
Final Results of 2001-2002 Administrative Review: TRBs from the
People's Republic of China, 68 FR 70488 (December 18, 2003). No party
has challenged the designation of the PRC as an NME country in this
investigation. Therefore, we have treated the PRC as an NME country for
purposes of this preliminary determination.
Surrogate Country
When the Department is investigating imports from an NME, section
773(c)(1) of the Act directs it to base normal value, in most
circumstances, on the NME producer's factors of production valued in a
surrogate market-economy country or countries considered to be
appropriate by the Department. In accordance with section 773(c)(4) of
the Act, in valuing the factors of production, the Department shall
utilize, to the extent possible, the prices or costs of factors of
production in one or more market-economy countries that are at a level
of economic development comparable to that of the NME country and are
significant producers of comparable merchandise. The sources of the
surrogate values we have used in this investigation are discussed under
the normal value section below.
As detailed in the Surrogate Country Memorandum, the Department has
preliminarily selected India as the surrogate country on the basis
that: (1) it is a significant producer of comparable merchandise; (2)
it is at a similar level of economic development pursuant to 733(c)(4)
of the Act; and (3) we have reliable data from India that we can use to
value the factors of production. Thus, we have calculated normal value
using Indian prices when available and appropriate to value Cixi
Jiangnan's, Far Eastern's and Ningbo Dafa's factors of production. See
Memorandum to the File from Paul Walker, through Alex Villanueva,
Program Manager, AD/CVD Operations, Office 9, and James C. Doyle,
Director, AD/CVD Operations, Office 9: Certain Polyester Staple Fiber
from the People's Republic of China: Surrogate Values for the
Preliminary Determination, dated December 15, 2006 (``Factor Value
Memorandum'').
In accordance with 19 CFR 351.301(c)(3)(i), for the final
determination in an antidumping investigation, interested parties may
submit publicly available information to value the factors of
production within 40 days after the date of publication of the
preliminary determination.
Affiliations
Based on the evidence on the record in this investigation and based
on the evidence presented in Far Eastern's questionnaire responses, we
preliminarily find that Far Eastern is affiliated with Far Eastern
Polychem Industries (``FEPI''), WuHan Far Eastern Industrial Trading
Ltd. (``WHFE''), Alberta & Orient Co., Ltd (Canada) (``A&O''), Yuang
Ding Investment Co. Ltd. (``YDIC''), Everest Investment (Holding)
Limited (``EIHL''), Everest Textile Co. Ltd. (``Everest Textile''), Far
Eastern Industrial (Suzhou) Ltd. (``FEIZ''), Far Eastern Industrial
(Wuxi) Ltd. (``FEIW'') and Far Eastern Textiles (Taiwan) Ltd.'s
(``FETL''), in addition to FETL's other related parties, pursuant to
sections 771(33)(E), (F), and (G) of the Act. Additionally, based on
the evidence on the record in this investigation and presented in
Ningbo Dafa's questionnaire responses, we preliminarily find that
Ningbo Dafa is affiliated with Cixi Dafa Chemical Fiber Co., Ltd.,
Ferry Fly Foreign Trade Co., Ltd. and Worthal Limited Partnership
pursuant to sections 771(33)(E), (F), and (G) of the Act. We
preliminarily find that it is not necessary to collapse Far Eastern or
Ningbo Dafa with its affiliates because there is no record evidence
demonstrating that there is significant potential for manipulation of
price or production with its affiliates. We note that the Department
normally considers three criteria for collapsing: (i) the level of
common ownership; (ii) the extent to which managerial employees or
board members of one firm sit on the board of directors of an
affiliated firm; and (iii) whether operations are intertwined, such as
through the sharing of sales information, involvement in production and
pricing decisions, the sharing of facilities or employees, or
significant transactions between the affiliated producers. See 19
C.F.R. Sec. 351.401(f)(2).
Separate Rates
In proceedings involving NME countries, the Department has a
rebuttable presumption that all companies within the 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 merchandise subject to investigation in an NME country
this single rate unless an exporter can demonstrate that it is
sufficiently independent so as to be entitled to a separate rate. Cixi
Jiangnan, Far Eastern and Ningbo Dafa, and the Separate-Rate Applicants
have provided company-specific information to demonstrate that they
operate independently of de jure and de facto government control, and
therefore satisfy the standards for the assignment of a separate rate.
We have considered whether each PRC company that submitted a
complete application is eligible for a separate rate. The Department's
separate-rate test is not concerned, in general, with macroeconomic/
border-type controls, e.g., export licenses, quotas, and minimum export
prices, particularly if these controls are imposed to prevent dumping.
See Notice of Final Determination of Sales at Less Than Fair Value:
Certain Preserved Mushrooms from the People's Republic of China, 63 FR
72255, 72256 (December 31, 1998). The test focuses, rather, on controls
over the investment, pricing, and output decision-making process at the
individual firm level. See Certain Cut-to-Length Carbon Steel Plate
from Ukraine: Final Determination of Sales at Less than Fair Value, 62
FR 61754, 61758 (November 19, 1997), and Tapered Roller Bearings and
Parts Thereof, Finished and Unfinished, from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 62 FR
61276, 61279 (November 17, 1997).
To establish whether a firm is sufficiently independent from
government control of its export activities to be entitled to a
separate rate, the Department analyzes each entity exporting the
subject merchandise under a test arising from the 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) (``Sparklers''),
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) (``Silicon Carbide''). In
[[Page 77376]]
accordance with the separate-rates criteria, the Department assigns
separate rates in NME cases only if respondents can demonstrate the
absence of both de jure and de facto governmental control over export
activities.
1. Absence of De Jure Control
The Department considers the following de jure criteria in
determining whether an individual company may be granted a separate
rate: (1) an absence of restrictive stipulations associated with an
individual exporter's business and export licenses; (2) any legislative
enactments decentralizing control of companies; and (3) other formal
measures by the government decentralizing control of companies. See
Sparklers, 56 FR at 20589.
The evidence provided by Cixi Jiangnan, Far Eastern, Ningbo Dafa
and the Separate-Rate Applicants supports a preliminary finding of de
jure absence of governmental control based on the following: 1) an
absence of restrictive stipulations associated with the individual
exporter's business and export licenses; 2) the applicable legislative
enactments decentralizing control of the companies; and 3) any other
formal measures by the government decentralizing control of companies.
See Memorandum to James C. Doyle, Director, AD/CVD Operations, Office
9, through Alex Villanueva, Program Manager, AD/CVD Operations, Office
9: Antidumping Duty Investigation of Certain Polyester Staple Fiber
from the People's Republic of China: Separate Rates Memorandum, dated
December 15, 2006 (``Separate Rates Memorandum'').
2. Absence of De Facto Control
Typically the Department considers four factors in evaluating
whether each respondent is subject to de facto governmental control of
its export functions: (1) whether the export prices are set by or are
subject to the approval of a governmental agency; (2) whether the
respondent has authority to negotiate and sign contracts and other
agreements; (3) whether the respondent has autonomy from the government
in making decisions regarding the selection of management; and (4)
whether the respondent retains the proceeds of its export sales and
makes independent decisions regarding disposition of profits or
financing of losses. See Silicon Carbide, 59 FR at 22586-87; see also
Notice of Final Determination of Sales at Less Than Fair Value:
Furfuryl Alcohol From the People's Republic of China, 60 FR 22544,
22545 (May 8, 1995). The Department has determined that an analysis of
de facto control is critical in determining whether respondents are, in
fact, subject to a degree of governmental control which would preclude
the Department from assigning separate rates.
We determine that, for Cixi Jiangnan, Far Eastern, Ningbo Dafa and
the Separate-Rate Applicants, the evidence on the record supports a
preliminary finding of de facto absence of governmental control based
on record statements and supporting documentation showing the
following: 1) each exporter sets its own export prices independent of
the government and without the approval of a government authority; 2)
each exporter retains the proceeds from its sales and makes independent
decisions regarding disposition of profits or financing of losses; 3)
each exporter has the authority to negotiate and sign contracts and
other agreements; and 4) each exporter has autonomy from the government
regarding the selection of management.
Therefore, the evidence placed on the record of this investigation
by Cixi Jiangnan, Far Eastern, Ningbo Dafa and the Separate-Rate
Applicants demonstrate an absence of de jure and de facto government
control with respect to each of the exporter's exports of the
merchandise under investigation, in accordance with the criteria
identified in Sparklers and Silicon Carbide. As a result, for the
purposes of this preliminary determination, we have granted separate
company-specific rates to Cixi Jiangnan, Far Eastern and Ningbo Dafa.
Additionally, we have granted the Separate-Rate Applicants a weighted-
average margin for the purposes of this preliminary determination. See
Separate Rates Memorandum.
The PRC-Wide Entity
The Department has data that indicates there were more exporters of
PSF from the PRC than those indicated in the response to our request
for Q&V information during the POI. See Respondent Selection
Memorandum. We issued our request for Q&V information to 106 potential
Chinese exporters of the subject merchandise, in addition to BOFT and
MOFCOM.\1\ We received only 19 Q&V responses and 3 Q&V responses that
were improperly filed. See Respondent Selection Memorandum at 1-2. We
did not receive Q&V responses from most of the companies to which we
sent our request for Q&V information. See Id. Information on the record
of this investigation indicates that there are numerous producers/
exporters of PSF in the PRC. Based upon our knowledge of the volume of
imports of subject merchandise from the PRC, the companies which
responded to the Q&V questionnaire, the Separate-Rate Applicants, Cixi
Jiangnan, Far Eastern, and Ningbo Dafa do not account for all imports
into the United States. Although all exporters were given an
opportunity to provide Q&V information, not all exporters provided a
response to the Department's Q&V letter. Further, the Government of the
PRC did not respond to the Department's questionnaire. Therefore, the
Department determines preliminarily that there were PRC exporters of
the subject merchandise during the POI from PRC producers/exporters
that did not respond to the Department's request for information. We
have treated these PRC producers/exporters as part of the PRC-wide
entity because they did not qualify for a separate rate.
---------------------------------------------------------------------------
\1\ For a list of companies to which the Department sent its
request for Q&V information, see Respondent Selection Memorandum at
1.
---------------------------------------------------------------------------
Section 776(a)(2) of the Act provides that, if an interested party
(A) withholds information that has been requested by the Department,
(B) fails to provide such information in a timely manner or in the form
or manner requested, subject to subsections 782(c)(1) and (e) of the
Act, (C) significantly impedes a proceeding 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.
Information on the record of this investigation indicates that the
PRC-wide entity was non-responsive. Certain companies did not respond
to our request for Q&V information and did not respond to the
Department's questionnaire. As a result, pursuant to section
776(a)(2)(A) of the Act, we find that the use of facts available is
appropriate to determine the PRC-wide rate. See Preliminary
Determination of Sales at Less Than Fair Value, Affirmative Preliminary
Determination of Critical Circumstances and Postponement of Final
Determination: Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 4986 (January 31, 2003), unchanged in Final
Determination of Sales at Less Than Fair Value and Affirmative Critical
Circumstances: Certain Frozen Fish Fillets from the Socialist Republic
of Vietnam, 68 FR 37116 (June 23, 2003).
Section 776(b) of the Act provides that, in selecting from among
the facts
[[Page 77377]]
otherwise available, the Department may employ an adverse inference if
an interested party fails to cooperate by not acting to the best of its
ability to comply with requests for information. See Final
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled
Flat-Rolled Carbon-Quality Steel Products from the Russian Federation,
65 FR 5510, 5518 (February 4, 2000); see also ``Statement of
Administrative Action,'' accompanying the URAA, H.R. Rep. No. 103-316,
870 (1994) (``SAA''). We find that, because the PRC-wide entity did not
respond to our request for information, it has failed to cooperate to
the best of its ability. Therefore, the Department preliminarily finds
that, in selecting from among the facts available, an adverse inference
is appropriate.
Further, section 776(b) of the Act authorizes the Department to use
as adverse facts available (``AFA'') information derived from the
petition, the final determination from the LTFV investigation, a
previous administrative review, or any other information placed on the
record. In selecting a rate for adverse facts available, 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 Final Determination of Sales at Less Than Fair Value:
Static Random Access Memory Semiconductors from Taiwan, 63 FR 8909,
8932 (February 23, 1998). It is the Department's practice to select, as
AFA, the higher of the (a) highest margin alleged in the petition, or
(b) the highest calculated rate of any respondent in the investigation.
See Final Determination of Sales at Less Than Fair Value: Certain Cold-
Rolled Carbon Quality Steel Products from the People's Republic of
China, 65 FR 34660 (May 21, 2000) and accompanying Issues and Decision
Memorandum, at ``Facts Available.'' In the instant investigation, as
AFA, we have assigned to the PRC-wide entity a margin based on
information in the petition, because the margin derived from the
petition is higher than the calculated margins for the selected
respondents. In this case, we have applied the petition rate of 44.30
percent.
Section 776(c) of the Act requires that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation as facts available, it must, to the extent
practicable, corroborate that information from independent sources
reasonably at its disposal.\2\ The SAA also states that the independent
sources may include published price lists, official import statistics
and customs data, and information obtained from interested parties
during the particular investigation. See SAA at 870.
---------------------------------------------------------------------------
\2\ Secondary information is described in the SAA as
``information derived from the petition that gave rise to the
investigation or review, the final determination concerning subject
merchandise, or any previous review under section 751 concerning the
subject merchandise.'' See SAA at 870.
---------------------------------------------------------------------------
The SAA also clarifies that ``corroborate'' means that the
Department will satisfy itself that the secondary information to be
used has probative value. See SAA at 870. As noted in 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; Preliminary Results of Antidumping Duty
Administrative Reviews and Partial Termination of Administrative
Reviews, 61 FR 57391, 57392 (November 6, 1996), unchanged in 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, 2005), to corroborate secondary information, the
Department will, to the extent practicable, examine the reliability and
relevance of the information used.
Petitioners' methodology for calculating the export price and
normal value in the petition is discussed in the initiation notice. See
Initiation Notice at 41203. To corroborate the AFA margin selected, we
compared the U.S. price and normal values from the petition to the U.S.
price and normal values for the respondents. See Memorandum to the File
through Alex Villanueva, Program Manager, AD/CVD Operations, Office 9:
Corroboration of the PRC-Wide Facts Available Rate for the Preliminary
Determination in the Antidumping Duty Investigation of PSF and parts
thereof from the People's Republic of China, dated December 15, 2006,
(``Corroboration Memorandum''). Accordingly, we find that the rate of
44.30 percent is corroborated within the meaning of section 776(c) of
the Act. Consequently, we are applying 44.30 percent as the single
antidumping rate to the PRC-wide entity. The PRC-wide rate applies to
all entries of the merchandise under investigation except for entries
from Cixi Jiangnan, Far Eastern, Ningbo Dafa and the Separate- Rate
Applicants.
Margin for the Separate Rate Applicants
The Department received timely and complete separate rates
applications from the Separate Rates Applicants, who are all exporters
of PSF from the PRC, which were not selected as mandatory respondents
in this investigation. Through the evidence in their applications,
these companies have demonstrated their eligibility for a separate
rate, as discussed above in the ``Separate Rates'' section and in the
Separate Rates Memorandum. Consistent with the Department's practice,
as the separate rate, we have established a weighted-average margin for
the Separate Rates Applicants based on the rates we calculated for
Ningbo Dafa, Cixi Jiangnan and Far Eastern, excluding any rates that
are zero, de minimis, or based entirely on AFA. Companies receiving
this rate are identified by name in the ``Suspension of Liquidation''
section of this notice.
Date of Sale
Section 351.401(i) of the Department's regulations states that,
``in identifying the date of sale of the subject merchandise or foreign
like product, the Secretary normally will use the date of invoice, as
recorded in the exporter or producer's records kept in the normal
course of business.'' However, the Secretary may use a date other than
the date of invoice if the Secretary is satisfied that a different date
better reflects the date on which the exporter or producer establishes
the material terms of sale. See 19 CFR 351.401(i); See also Allied Tube
and Conduit Corp. v. United States, 132 F. Supp. 2d 1087, 1090-1093
(CIT 2001) (``Allied Tube''). The date of sale is generally the date on
which the parties agree upon all substantive terms of the sale. This
normally includes the price, quantity, delivery terms and payment
terms. In order to simplify the determination of date of sale for both
the respondent and the Department and in accordance with 19 CFR
351.401(i), the date of sale will normally be the date of the invoice,
as recorded in the exporter's or producer's records kept in the
ordinary course of business, unless satisfactory evidence is presented
that the exporter or producer establishes the material terms of sale on
some other date. In other words, the date of the invoice is the
presumptive date of sale, although this presumption may be overcome.
For instance, in Final Determination of Sales at Less Than Fair Value:
Polyvinyl Alcohol from Taiwan, 61 FR 14067 (March 29, 1996),
[[Page 77378]]
the Department used the date of the purchase order as the date of sale
because the terms of sale were established at that point.
After examining the questionnaire responses and the sales
documentation that Cixi Jiangnan, Far Eastern and Ningbo Dafa placed on
the record, we preliminarily determine that invoice date is the most
appropriate date of sale for Cixi Jiangnan, Far Eastern and Ningbo
Dafa. In its supplemental section A response, dated November 16, 2006,
Far Eastern explained that it had incorrectly stated that it did not
encounter any changes to the material terms of sale from its purchase
orders. Instead, its original statement should have read that material
terms of the sale from its commercial invoice had not changed during
the POI. Additionally, Far Eastern provided several specific examples
where it did encounter changes to the material terms of sale from its
purchase orders. These examples included a cancellation of a sale and
order changes that affected the price, quantity, product types and
shipping destination.
Petitioners, however, claim that the purchase order date is the
most appropriate date of sale because Far Eastern stated that it did
not encounter any changes with respect to the material terms of the
sale from its purchase orders in its original section A questionnaire
response, dated October 12, 2006. Petitioners have requested that the
Department use the purchase order date because Far Eastern stated that
the terms of sale did not change after the purchase order was issued.
In Allied Tube, the Court of International Trade (``CIT'') found
that a ``party seeking to establish a date of sale other than invoice
date bears the burden of producing sufficient evidence to 'satisfy' the
Department that a different date better reflects the date on which the
exporter or producer establishes the material terms of sale.''' Allied
Tube 132 F. Supp. 2d at 1092.
Therefore, for this preliminary determination, the Department finds
that based on the information on the record, Petitioners have failed to
rebut the presumption that the invoice date is not the appropriate date
of sale for Cixi Jiangnan, Far Eastern or Ningbo Dafa. Each respondent
has provided various examples of material changes to their purchase
orders during the POI. See Preliminary Determination of Sales at Less
Than Fair Value: Saccharin From the People's Republic of China, 67 FR
79054 (December 27, 2005).
Fair Value Comparisons
To determine whether sales of PSF to the United States by Cixi
Jiangnan, Far Eastern and Ningbo Dafa were made at less than fair
value, we compared the export price (``EP'') to normal value (``NV''),
as described in the ``U.S. Price,'' and ``Normal Value'' sections of
this notice. We compared NV to weighted-average EPs in accordance with
section 777A(d)(1) of the Act.
U.S. Price
Export Price
For Cixi Jiangnan, Far Eastern and Ningbo Dafa, we based U.S. price
on EP in accordance with section 772(a) of the Act, because the first
sale to an unaffiliated purchaser was made prior to importation, and
CEP was not otherwise warranted by the facts on the record. We
calculated EP based on the packed price from the exporter to the first
unaffiliated customer in the United States. Where applicable, we
deducted foreign movement expenses, foreign brokerage and handling
expenses, and international freight expenses from the starting price
(gross unit price), in accordance with section 772(c) of the Act.
Where foreign movement or international ocean freight was provided
by PRC service providers or paid for in Renminbi (``RMB''), we valued
these services using surrogate values (see ``Factors of Production''
section below for further discussion).
For a complete discussion of specific respondent calculations of
the U.S. price, see Memorandum to the File from Michael Holton, Senior
Case Analyst: Program Analysis for the Preliminary Determination of
Antidumping Duty Investigation of Certain Polyester Staple Fiber from
the People's Republic of China: Cixi Jiangnan, dated December 15, 2006
(``Cixi Jiangnan Analysis Memorandum''); Memorandum to the File from
Michael Holton, Senior Case Analyst: Program Analysis for the
Preliminary Determination of Antidumping Duty Investigation of Certain
Polyester Staple Fiber from the People's Republic of China: Far
Eastern, dated December 15, 2006 (``Far Eastern Analysis Memorandum'');
and Memorandum to The File from Paul Walker, Senior Case Analyst,
Investigation of Certain Polyester Staple Fiber from the People's
Republic of China: Analysis Memo for Ningbo Dafa Chemical Fiber Co.,
Ltd., dated December 15, 2006 (``Ningbo Dafa Analysis Memorandum'').
Normal Value
Section 773(c)(1) of the Act provides that the Department shall
determine the NV using a factors-of-production methodology if the
merchandise is exported from an NME and the information does not permit
the calculation of NV using home-market prices, third-country prices,
or constructed value under section 773(a) of the Act. The Department
bases NV on the FOP because the presence of government controls on
various aspects of non-market economies renders price comparisons and
the calculation of production costs invalid under the Department's
normal methodologies.
During the POI, Far Eastern did not have production of all types of
merchandise for which it had POI sales. Consequently, Far Eastern
reported in the factors of production database the most closely
resembling CONNUM produced during the POI for the merchandise that was
sold, but not produced during the POI. At the Department's request, Far
Eastern also submitted factors of production information covering the
six-month period prior to the POI for the merchandise that was sold,
but not produced during the POI, which included factors of production
most closely resembling the CONNUM produced during the POI. Therefore,
the Department has determined to use the additional six-month
information provided by Far Eastern. See Far Eastern Analysis
Memorandum.
In addition, Ningbo Dafa produced subject merchandise in more than
one facility. Ningbo Dafa has stated that all subject merchandise sales
to the United States and their respective CONNUMs may be tied to a
single production facility. The Petitioners have argued that the
Department should calculate normal value using factors of production
from all of Ningbo Dafa's production facilities. However, absent record
information to the contrary, for this preliminary determination, the
Department has only included the factors of production from this single
facility in our calculation of normal value. See Ningbo Dafa Analysis
Memorandum for a more complete explanation. The Department will
continue to examine this issue for the final determination.
Critical Circumstances
On September 29, 2006, Petitioners alleged that there is a
reasonable basis to believe or suspect critical circumstances exist
with respect to the antidumping investigation of PSF from the PRC. On
October 19, 2006, Cixi
[[Page 77379]]
Jiangnan, Far Eastern and Ningbo Dafa submitted information on their
exports from January 2003 through September 2006 as requested by the
Department. In accordance with 19 C.F.R. Sec. 351.206(c)(2)(i),
because Petitioners submitted critical circumstances allegations more
than 20 days before the scheduled date of the preliminary
determination, the Department must issue preliminary critical
circumstances determinations not later than the date of the preliminary
determination.
Section 733(e)(1) 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: (A)(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; and (B) 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, section
351.206(h)(2) of the Department's regulations 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
regulations also provide, however, that if the 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.
In accordance with Section 733(e)(1)(A)(I) of the Act and as
discussed in the Critical Circumstances Memorandum, the Department
preliminarily finds that there is a history of dumping and material
injury by reason of dumped imports in the United States and elsewhere
of the subject merchandise based on the existence of foreign
antidumping duty orders of PSF, and the ITC's preliminary determination
of material injury. See Memorandum to Stephen Claeys, Deputy Assistant
Secretary, AD/CVD Operations from James C. Doyle, Director, AD/CVD
Operations, Office 9: Antidumping Duty Investigation of Certain
Polyester Staple Fiber from the People's Republic of China: Preliminary
Negative Determination of Critical Circumstances (``Critical
Circumstance Memorandum'').
For the reasons set forth in the Critical Circumstances Memorandum,
we find that there have been massive imports of the subject merchandise
over a relatively short period for Far Eastern, but not for Ningbo
Dafa, Cixi Jiangnan, the Separate Rates Applicants and the PRC-wide
entity. See Critical Circumstance Memorandum at Attachment 5-7. We find
that some importers, exporters, or producers knew or should have known
an antidumping case was pending on PSF imports from the PRC in March of
2006 because there is record evidence that many of the Chinese
producers begin planning the antidumping investigation. Therefore, we
relied on a period of six months as the period, which is the maximum
duration for the information we have available at this time, for
comparison in preliminarily determining whether imports of the subject
merchandise have been massive.
Therefore, given the analysis summarized above, and described in
more detail in the Critical Circumstances Memorandum, we preliminarily
determine that critical circumstances exist for imports of PSF from
exist for Far Eastern, but do not exist for imports of PSF from Cixi
Jiangnan, Far Eastern, Ningbo Dafa, the Separate-Rates Applicants and
the PRC-wide entity.
We will make a final determination concerning critical
circumstances for all producers/ exporters of subject merchandise from
the PRC when we make our final dumping determination in this
investigation, which is currently 75 days after the preliminary
determination.
Factor Valuation Methodology
In accordance with section 773(c) of the Act, we calculated NV
based on FOP data reported by respondents for the POI. To calculate NV,
we multiplied the reported per-unit factor-consumption rates by
publicly available surrogate values (except as discussed below). In
selecting the surrogate values, we considered the quality, specificity,
and contemporaneity of the data. As appropriate, we adjusted input
prices by including freight costs to make them delivered prices.
Specifically, we added to Indian import surrogate values a surrogate
freight cost using the shorter of the reported distance from the
domestic supplier to the factory or the distance from the nearest
seaport to the factory where appropriate. This adjustment is in
accordance with the Court of Appeals for the Federal Circuit's decision
in Sigma Corp. v. United States, 117 F. 3d 1401, 1407-1408 (Fed. Cir.
1997). A detailed description of all surrogate values used for
respondents can be found in the Factor Value Memorandum and company-
specific analysis memorandum. Additionally, for detailed descriptions
of all actual values used for market-economy inputs, see the company-
specific analysis memoranda dated December 15, 2006. See Cixi Jiangnan
Analysis Memorandum; Far Eastern Analysis Memorandum; and Ningbo Dafa
Analysis Memorandum.
For this preliminary determination, the Department will use Far
Eastern's reported market economy price of ethylene glycol from its
unaffiliated supplier. However, the Department will continue to review
whether Far Eastern is affiliated with its ethylene glycol supplier. If
the Department finds that Far Eastern and its ethylene glycol supplier
are affiliated, the Department will consider whether these purchases
were made at arms-length in the final determination. See Far Eastern
Analysis Memorandum.
For this preliminary determination, in accordance with the
Department's practice, we used data from the Indian Import Statistics
in order to calculate surrogate values for the mandatory respondents'
material inputs. In selecting the best available information for
valuing FOP in accordance with section 773(c)(1) of the Act, the
Department's practice is to select, to the extent practicable,
surrogate values which are non-export average values, most
contemporaneous with the POI, product-specific, and tax-exclusive. See
e.g., Notice of Preliminary Determination of Sales at Less Than Fair
Value, Negative Preliminary Determination of Critical Circumstances and
Postponement of Final Determination: Certain Frozen and Canned
Warmwater Shrimp From the Socialist Republic of Vietnam, 69 FR 42672,
42682 (July 16, 2004), unchanged in Final Determination of Sales at
Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp from
the Socialist Republic of Vietnam, 69 FR 71005 (December 8, 2004). The
record shows that data in the Indian Import Statistics represents
import data that is
[[Page 77380]]
contemporaneous with the POI, product-specific, and tax-exclusive.
Where we could not obtain publicly available information
contemporaneous to the POI with which to value factors, we adjusted the
surrogate values using, where appropriate, the Indian Wholesale Price
Index (``WPI'') as published in the International Financial Statistics
of the International Monetary Fund.
Furthermore, with regard to the Indian import-based surrogate
values, we have disregarded import prices that we have reason to
believe or suspect may be subsidized. We have reason to believe or
suspect that prices of inputs from Indonesia, South Korea, and Thailand
may have been subsidized. We have found in other proceedings that these
countries maintain broadly available, non-industry-specific export
subsidies and, therefore, it is reasonable to infer that all exports to
all markets from these countries may be subsidized. See Amended Final
Determination of Sales at Less than Fair Value: Automotive Replacement
Glass Windshields from the People's Republic of China, 67 FR 11670
(March 15, 2002); see also Notice of Final Determination of Sales at
Less Than Fair Value and Negative Final Determination of Critical
Circumstances: Certain Color Television Receivers From the People's
Republic of China, 69 FR 20594 (April 16, 2004) (``CTVs from the
PRC''). We are also directed by the legislative history not to conduct
a formal investigation to ensure that such prices are not subsidized.
See H.R. Rep. 100-576 at 590 (1988). Rather, Congress directed the
Department to base its decision on information that is available to it
at the time it makes its determination. Therefore, we have not used
prices from these countries either in calculating the Indian import-
based surrogate values or in calculating market-economy input values.
In instances where a market-economy input was obtained solely from
suppliers located in these countries, we used Indian import-based
surrogate values to value the input. See Final Determination of Sales
at Less Than Fair Value: Certain Automotive Replacement Glass
Windshields From The People's Republic of China, 67 FR 6482 (February
12, 2002), and accompanying Issues and Decision Memorandum at Comment
1.
For Cixi Jiangnan, Far Eastern, and Ningbo Dafa, certain inputs
into the production of the merchandise under investigation were
purchased from market economy suppliers and paid for in market economy
currencies. For these inputs all purchases were made from a market
economy supplier and paid in a market economy currency, and the
Department has therefore used the weighted-average POI price
experienced by each respondent for these inputs. Therefore, we used the
individual market economy prices experienced by Cixi Jiangnan, Far
Eastern, and Ningbo Dafa when the inputs were obtained from a market
economy, paid for in a market economy currency, and was a significant
portion of the total purchases of that input.
The Department used the Indian Import Statistics to value the raw
material and packing material inputs that Far Eastern, Cixi Jiangnan,
and Ningbo Dafa used to produce the subject merchandise during the POI,
except where listed below. Absent adequate information on the record to
value PSF waste (fiber, ``popcorn'' and lump), for this preliminary
determination, we are using an average of three Indian HTS numbers,
5503.20.00, 3915.90.42 and 3915.90.90, which represent values for raw
PET bottles, finished PSF and plastic scrap, respectively. We note that
the Department ``need not prove that its methodology was the only way
or even the best way to calculate surrogate values for factors of
production, as long as it was a reasonable way.'' See Coalition for the
Pres. of Am. Brake Drum and Rotor Aftermakret Mfs. v. u.S.s., 23 CIT
88, 118, 44 F.Supp.2d 229, 258 (1999); Shakeproof Assembly Components
v. U.S., Slip-Op 06-129 (August 25, 2006). We find that, given the
information on the record, that averaging HTS numbers 5503.20.00,
3915.90.42 and 3915.90.90 is the most reasonable way to value PSF
waste. For a detailed description of PSF waste and all other surrogate
values used for respondents, see Factor Value Memorandum.
To value electricity and diesel fuel, the Department used rates
from Key World Energy Statistics 2003, published by the International
Energy Agency. Because these data were not contemporaneous to the POI,
we adjusted for inflation using WPI. See Factor Value Memorandum.
For natural gas, we applied a surrogate value obtained from the Gas
Authority of India Ltd. website, a supplier of natural gas in India,
covering the period January through June 2002. In addition, based on
the February 1, 2005, article from Chemical Weekly, we note that the
Petroleum Ministry had been considering raising the price but no action
was taken. Therefore, consistent with the Department's recent
determination in Polyvinyl Alcohol from the People's Republic of China,
we took the average of the base and ceiling prices, added the
transportation charge, and inflated the calculated value using the
appropriate WPI inflator. See Surrogate Value Memo and Polyvinyl
Alcohol From the People's Republic of China: Final Results of
Antidumping Duty Administrative Review, 71 FR 27991 (May 15, 2006), and
accompanying Issues and Decision Memorandum at Comment 2.
The Department valued steam following the methodology used in the
investigation of Certain Tissue Paper Products and Certain Crepe Paper
Products from the People's Republic of China, but updated the natural
gas price. See Factor Value Memorandum and Notice of Preliminary
Determinations of Sales at Less Than Fair Value, Affirmative
Preliminary Determination of Critical Circumstances and Postponement of
Final Determination for Certain Tissue Paper Products, 69 FR 56407
(September 21, 2004), unchanged in the final determination, Notice of
Final Determination of Sales at Less Than Fair Value: Certain Tissue
Paper Products from the People's Republic of China, 70 FR 7475
(February 14, 2005).
For direct, indirect, and packing labor, consistent with 19 CFR
351.408(c)(3), we used the PRC regression-based wage rate as reported
on Import Administration's home page, Import Library, Expected Wages of
Selected NME Countries, revised in November 2005, https://
ia.ita.doc.gov/wages/. The source of these wage-rate data on
the Import Administration's web site is the Yearbook of Labour
Statistics 2002, ILO (Geneva: 2002), Chapter 5B: Wages in
Manufacturing. Because this regression-based wage rate does not
separate the labor rates into different skill levels or types of labor,
we have applied the same wage rate to all skill levels and types of
labor reported by the respondent. See Factor Value Memorandum.
Because water is essential to the production process of the subject
merchandise, the Department considers water to be a direct material
input, and not as overhead, and valued water with a surrogate value
according to our practice. See Final Determination of Sales at Less
Than Fair Value and Critical Circumstances: Certain Malleable Iron Pipe
Fittings From the People's Republic of China, 68 FR 61395 (October 28,
2003) and, accompanying Issue and Decision Memorandum at Comment 11.
Although some suppliers have reported that they obtain water from a
well, we find that whether the producer pays for water is irrelevant in
determining whether it should be considered a direct material input.
Further, there is no evidence on the
[[Page 77381]]
record that the Indian producer of polyester staple fiber from which we
are obtaining an overhead financial ratio accounts for water as an
overhead expense. The Department valued water using data from the
Maharashtra Industrial Development Corporation (www.midcindia.org)
since it includes a wide range of industrial water tariffs. This source
provides 386 industrial water rates within the Maharashtra province
from June 2003: 193 for the ``inside industrial areas'' usage category
and 193 for the ``outside industrial areas'' usage category. Because
the value was not contemporaneous with the POI, we adjusted the rate
for inflation. See Factor Value Memorandum.
We used Indian transport information in order to value the freight-
in cost of the raw materials. The Department determined the best
available information for valuing truck freight to be from
www.infreight.com. This source provides daily rates from six major
points of origin to five destinations in India during the POI. The
Department obtained a price quote on the first day of each month of the
POI from each point of origin to each destination and averaged the data
accordingly. See Factor Value Memorandum. Consistent with the
calculation of inland truck freight, the Department used the same
freight distances used in the calculation of inland truck freight, as
reported by www.infreight.com to derive a value in Rupees per kilogram
per kilometer. See Factor Value Memorandum.
The Department used two sources to calculate a surrogate value for
domestic brokerage expenses. The Department averaged December 2003-
November 2004 data contained in Essar Steel's February 28, 2005, public
version response submitted in the AD administrative review of Hot-
Rolled Carbon Steel Flat Products from India with October 2002-
September 2003 data contained in Pidilite Industries' March 9, 2004,
public version response submitted in the AD investigation of Carbazole
Violet Pigment 23 from India (see Notice of Final Determination of
Sales at Less Than Fair Value: Carbazole Violet Pigment 23 From India,
69 FR 67306 (November 17, 2004)). The brokerage expense data reported
by Essar Steel and Pidilite Industries in their public versions is
ranged data. The Department first derived an average per-unit amount
from each source. Then the Department adjusted each average rate for
inflation. Finally, the Department averaged the two per-unit amounts to
derive an overall average rate for the POI. See Factor Value
Memorandum.
To value marine insurance, the Department obtained a price quote
from https://www.rjgconsultants.com/insurance.html, a market-economy
provider of marine insurance. See Factor Value Memo Memorandum. To
value factory overhead, selling, general, and administrative expenses,
and profit, we used the audited financial statements from Indo Rama's
2005/2006 Annual Report and Reliance Industries Ltd.'s 2005/2006 Annual
Report. See Factor Value Memorandum.
Currency Conversion
We made currency conversions into U.S. dollars, in accordance with
section 773A(a) of the Act, based on the exchange rates in effect on
the dates of the U.S. sales as certified by the Federal Reserve Bank.
Verification
As provided in section 782(i)(1) of the Act, we intend to verify
the information upon which we will rely in making our final
determination.
Combination Rates
In the Initiation Notice, the Department stated that it would
calculate combination rates for certain respondents that are eligible
for a separate rate in this investigation. See Initiation Notice, 70 FR
35625, 35629. This change in practice is described in Policy Bulletin
05.1, available at https://ia.ita.doc.gov/. The Policy Bulletin 05.1,
states:
``[lsqb]w[rsqb]hile continuing the practice of assigning separate
rates only to exporters, all separate rates that the Department will
now assign in its NME investigations will be specific to those
producers that supplied the exporter during the period of
investigation. Note, however, that one rate is calculated for the
exporter and all of the producers which supplied subject merchandise to
it during the period of investigation. This practice applies both to
mandatory respondents receiving an individually calculated separate
rate as well as the pool of non-investigated firms receiving the
weighted-average of the individually calculated rates. This practice is
referred to as the application of ``combination rates'' because such
rates apply to specific combinations of exporters and one or more
producers. The cash-deposit rate assigned to an exporter will apply
only to merchandise both exported by the firm in question and produced
by a firm that supplied the exporter during the period of
investigation.'' See Policy Bulletin 05.1 at 6.
Preliminary Determination
The weighted-average dumping margins are as follows:
PSF from the PRC - Weighted-average Dumping Margins
------------------------------------------------------------------------
Exporter & Producer Weighted-Average Deposit Rate
------------------------------------------------------------------------
Cixi Jiangnan Chemical Co., 15.30[percnt]
Ltd.........................
Far Eastern Industries 10.45[percnt]
(Shanghai) Ltd..............
Ningbo Dafa Chemical Fiber 4.39[percnt]
Co., Ltd....................
Cixi Sansheng Chemical Fiber 9.25[percnt]
Co., Ltd....................
Cixi Santai Chemical Fiber 9.25[percnt]
Co., Ltd....................
Cixi Waysun Chemical Fiber 9.25[percnt]
Co., Ltd....................
Hangzhou Best Chemical Fibre 9.25[percnt]
Co., Ltd....................
Hangzhou Hanbang Chemical 9.25[percnt]
Fibre Co., Ltd.,............
Hangzhou Huachuang Co., Ltd.. 9.25[percnt]
Hangzhou Sanxin Paper Co., 9.25[percnt]
Ltd.........................
Hangzhou Taifu Textile Fiber 9.25[percnt]
Co., Ltd....................
Jiaxang Fuda Chemical Fibre 9.25[percnt]
Factory.....................
Nantong Luolai Chemical Fiber 9.25[percnt]
Co. Ltd.....................
Nanyang Textile Co., Ltd..... 9.25[percnt]
Suzhou PolyFiber Co., Ltd.... 9.25[percnt]
Xiamen Xianglu Fiber Chemical 9.25[percnt]
Co..........................
Zhaoqing Tifo New Fiber Co., 9.25[percnt]
Ltd.........................
Zhejiang Anshun Pettechs 9.25[percnt]
Fibre Co., Ltd..............
[[Page 77382]]
Zhejiang Waysun Chemical 9.25[percnt]
Fiber Co., Ltd..............
PRC-Wide Rate................ 44.30[percnt]
------------------------------------------------------------------------
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).
Suspension of Liquidation
In accordance with section 733(d) of the Act, we will instruct U.S.
Customs and Border Protection (``CBP'') to suspend liquidation of all
entries of PSF from the PRC as described in the ``Scope of
Investigation'' section, entered, or withdrawn from warehouse, for
consumption from Ningo Dafa, Cixi Jiangnan, the Separate Rate
Applicants and the PRC-wide entity on or after the date of publication
of this notice in the Federal Register. We will instruct CBP to require
a cash deposit or the posting of a bond equal to the weighted-average
amount by which the
