Coated Free Sheet Paper from the People's Republic of China: Final Affirmative Countervailing Duty Determination, 60645-60648 [E7-21046]
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Federal Register / Vol. 72, No. 206 / Thursday, October 25, 2007 / Notices
Comment 11: Use of Malaysian Export
Statistics as the Starting Point for
Deriving Stumpage Benchmarks
Comment 12: The Stumpage Rate
Calculation Provided by Respondents in
their Expert’s Report
Comment 13: Calculation of Species–
Specific Benchmarks
Comment 14: Whether to Adjust the
Benchmark for Movement Expenses
Comment 15: Whether to Use Monthly
Exchange Rates
Comment 16: Whether to Adjust the
Benchmark for Export Royalty Fees and
G&A Expenses
Comment 17: Profit Adjustment to the
Benchmark
Comment 18: Use of Actual Versus
Accrued Stumpage Payments
Comment 19: Use of the FAO’s
Conversion Factors
Comment 20: Whether to Adjust WKS’
Log Harvest
Comment 21: Adjustments to the Sales
Denominator
Comment 22: Treatment of Alleged
Illegal Logging in Indonesia
Comment 23: Indications of Illegal
Logging Practices in Subsidizing
Indonesia’s CFS Paper Industry
Comment 24: Examination of Log
Purchases from Non–Cross Owned
Entities Under the Log Export Ban
Comment 25: The Legality of the WTO’s
Findings on Export Restraints
Comment 26: Whether Respondent
Companies Cured Any Deficiency with
Respect to Settling Debt with COEs
Comment 27: Specificity of IBRA’s
Acceptance of BII Shares and COEs for
the Repayment of SMG/APP Debt
Comment 28: The Effect of IBRA’s
Outright Debt Forgiveness on the
Specificity of the Acceptance of COEs
for SMG/APP Debt
Comment 29: Benefit from IBRA’s
Acceptance of COEs as Settlement of
Debt
Comment 30: Whether an Adverse
Inference Can be Applied in
Determining that Orleans was Affiliated
with SMG/APP
Comment 31: Specificity of IBRA’s Sale
of SMG/APP Debt to an Affiliate of the
Original Debtor
Comment 32: Whether the Information
the Department Relied Upon Was
Speculative and Circumstantial
Comment 33: Procedural Abnormalities
in IBRA’s Sale of the SMG/APP Debt
and Specificity
Comment 34: Effect of the Lack of
Reduction in Debt on the
Countervailability of the Sale of SMG/
APP’s Debt to Orleans
Comment 35: The Appropriateness of
the Department’s Reliance on Facts
Available with an Adverse Inference
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Comment 36: Whether A Government
Can Provide a Financial Contribution
When the Act is Illegal
VIII. Recommendation
[FR Doc. E7–21040 Filed 10–24–07; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[C–570–907]
Coated Free Sheet Paper from the
People’s Republic of China: Final
Affirmative Countervailing Duty
Determination
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(Department) has made a final
determination that countervailable
subsidies are being provided to
producers and exporters of coated free
sheet (CFS) paper from the People’s
Republic of China. For information on
the estimated countervailing duty rates,
please see the ‘‘Suspension of
Liquidation’’ section, below.
EFFECTIVE DATE: October 25, 2007.
FOR FURTHER INFORMATION CONTACT:
David Layton or David Neubacher, AD/
CVD Operations, Office 1, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–0371 or (202) 482–
5823, respectively.
SUPPLEMENTARY INFORMATION:
AGENCY:
Petitioner
The petitioner in this investigation is
the NewPage Corporation (petitioner).
Period of Investigation
The period for which we are
measuring subsidies, or period of
investigation, is January 1, 2005,
through December 31, 2005.
Case History
The following events have occurred
since the announcement of the
preliminary determination on March 30,
2007, and subsequent publication in the
Federal Register on April 9, 2007. See
Coated Free Sheet Paper from the
People’s Republic of China: Amended
Affirmative Preliminary Countervailing
Duty Determination, 72 FR 17484 (April
9, 2007) (Preliminary Determination).
On April 9, 2007, Gold East Paper
(Jiangsu) Co., Ltd. (GE) and the
petitioner submitted ministerial error
allegations relating to the Preliminary
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60645
Determination. We addressed these
ministerial error allegations in a May 11,
2007, memorandum to Stephen J.
Claeys, Deputy Assistant Secretary for
Import Administration, entitled
Ministerial Error Allegations, which is
on file in the Central Records Unit
(CRU), Room B–099 of the main
Department building.
On April 12, 2007, the Department
requested that GE amend the bracketing
and resubmit its March 9, 2007,
supplemental questionnaire response,
which GE did on April 17, 2007.
We issued a supplemental
questionnaire to the Government of the
People’s Republic of China (GOC) on
April 23, 2007, and to GE and Shandong
Chenming Paper Holdings Ltd.
(Shandong Chenming) on April 20,
2007. We received the GOC’s
supplemental questionnaire response on
May 13, 2007, Shandong Chenming’s
supplemental questionnaire response on
May 18, 2007, and GE’s supplemental
response on May 25, 2007. On May 25,
2007, we issued a supplemental
questionnaire to Shandong Chenming,
but did not receive a response. The
GOC, GE, the petitioner, and interested
parties also submitted factual
information, comments, and arguments
at numerous instances prior to the final
determination based on various
deadlines for submissions of factual
information and/or arguments
established by the Department
subsequent to the Preliminary
Determination.
On May 2, 2007, the Department
published notification of alignment of
the final determinations in the
antidumping and countervailing duty
investigations of CFS paper from the
People’s Republic of China (PRC). See
Coated Free Sheet Paper from
Indonesia, the People’s Republic of
China, and the Republic of Korea:
Alignment of Final Countervailing Duty
Determinations with Final Antidumping
Duty Determinations, 72 FR 24277 (May
2, 2007). The Department subsequently
postponed the final determinations for
the antidumping and countervailing
investigations of CFS paper from the
PRC. See Preliminary Determination of
Sales at Less Than Fair Value and
Postponement of Final Determination:
Coated Free Sheet Paper from the
People’s Republic of China, 72 FR 30758
(June 4, 2007).
On June 13, 2007, we received a letter
from Shandong Chenming withdrawing
its participation in the investigation and
requesting that all of its business
proprietary information be removed
from the record and destroyed. On June
27, 2007, the Department notified
Shandong Chenming that it had
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removed and destroyed the company’s
submitted proprietary information from
the record of this investigation and
would direct all interested parties under
the Administrative Protective Order
(APO) to certify its destruction. All
interested parties certified destruction
of Shandong Chenming’s proprietary
information.
From July 11 to July 28, 2007, we
conducted verification of the
questionnaire responses submitted by
the GOC and GE.
On August 30, 2007, we issued our
preliminary determination regarding the
creditworthiness of GE and its cross–
owned companies. We addressed our
preliminary findings in a August 30,
2007, memorandum to David M.
Spooner, Assistant Secretary for Import
Administration, entitled Preliminary
Creditworthiness Determination for
Gold East Paper (Jiangsu) Co., Ltd. and
its Cross–Owned Companies, which is
on file in the CRU.
We received case briefs from the GOC;
GE; the petitioner; and the United Steel,
Paper and Forestry, Rubber,
Manufacturing, Energy, Allied
Industrial and Service Workers
International Union, AFL–CIO-CLC on
September 7, 2007. The same parties
submitted rebuttal briefs on September
12, 2007. We held a hearing for this
investigation on September 18, 2007.
Scope of the Investigation
The merchandise covered by this
investigation includes coated free sheet
paper and paperboard of a kind used for
writing, printing or other graphic
purposes. Coated free sheet paper is
produced from not–more-than 10
percent by weight mechanical or
combined chemical/mechanical fibers.
Coated free sheet paper is coated with
kaolin (China clay) or other inorganic
substances, with or without a binder,
and with no other coating. Coated free
sheet paper may be surface–colored,
surface–decorated, printed (except as
described below), embossed, or
perforated. The subject merchandise
includes single- and double–side-coated
free sheet paper; coated free sheet paper
in both sheet or roll form; and is
inclusive of all weights, brightness
levels, and finishes. The terms ‘‘wood
free’’ or ‘‘art’’ paper may also be used to
describe the imported product.
Excluded from the scope are: (1)
coated free sheet paper that is imported
printed with final content printed text
or graphics; (2) base paper to be
sensitized for use in photography; and
(3) paper containing by weight 25
percent or more cotton fiber.
Coated free sheet paper is classifiable
under subheadings 4810.13.1900,
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Jkt 214001
4810.13.2010, 4810.13.2090,
4810.13.5000, 4810.13.7040,
4810.14.1900, 4810.14.2010,
4810.14.2090, 4810.14.5000,
4810.14.7040, 4810.19.1900,
4810.19.2010, and 4810.19.2090 of the
Harmonized Tariff Schedule of the
United States (HTSUS). While HTSUS
subheadings are provided for
convenience and customs purposes, our
written description of the scope of these
investigations is dispositive.
Scope Comments
On August 20, August 28, and
September 10, 2007, the petitioner
requested that the Department clarify
the scope of the antidumping and
countervailing duty investigations of
CFS paper from Indonesia, Korea and
the People’s Republic of China.
Specifically, the petitioner asked the
Department to ‘‘clarify that the scope of
the investigation includes coated free
sheet paper containing hardwood
BCTMP.’’
Because this was a general issue
pertaining to all six investigations, the
Department set up a general issues file
to handle this scope request. A hearing
on the scope request was held on
September 26, 2007. The hearing
comprised a public session, a closed
session for the antidumping
investigation from Korea, and a closed
session for the countervailing duty
investigation from the PRC. After
considering the comments submitted by
the parties to these investigations, we
have determined not to adopt the scope
clarification sought by the petitioner.
See Memorandum to Stephen J. Claeys,
Deputy Assistant Secretary for Import
Administration, entitled ‘‘Scope
Clarification Request: NewPage
Corporation,’’ dated concurrently with
this notice, which is appended to the
‘‘Issues and Decision Memorandum for
Final Determination’’ from Stephen J.
Claeys, Deputy Assistant Secretary for
Import Administration, to David M.
Spooner, Assistant Secretary for Import
Administration, dated October 17, 2007
(Decision Memorandum).
Analysis of Comments Received
All issues raised in the case and
rebuttal briefs by parties to this
investigation are addressed in the
Decision Memorandum, which is hereby
adopted by this notice. Attached to this
notice as an Appendix is a list of the
issues that parties have raised and to
which we have responded in the
Decision Memorandum. Parties can find
a complete discussion of all issues
raised in this investigation and the
corresponding recommendations in this
public memorandum, which is on file in
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the CRU. In addition, a complete
version of the Decision Memorandum
can be accessed directly on the Internet
at https://ia.ita.doc.gov/frn/. The paper
copy and electronic version of the
Decision Memorandum are identical in
content.
Use of Adverse Facts Available
Sections 776(a)(1) and (2) of the Act
provide that the Department shall apply
‘‘facts otherwise available’’ if, inter alia,
necessary information is not on the
record or an interested party or any
other person: (A) withholds information
that has been requested; (B) fails to
provide information within the
deadlines established, or in the form
and manner requested by the
Department, subject to subsections (c)(1)
and (e) of section 782 of the Act; (C)
significantly impedes a proceeding; or
(D) provides information that cannot be
verified as provided by section 782(i) of
the Act.
Where the Department determines
that a response to a request for
information does not comply with the
request, section 782(d) of the Act
provides that the Department will so
inform the party submitting the
response and will, to the extent
practicable, provide that party the
opportunity to remedy or explain the
deficiency. If the party fails to remedy
the deficiency within the applicable
time limits and subject to section 782(e)
of the Act, the Department may
disregard all or part of the original and
subsequent responses, as appropriate.
Section 782(e) of the Act provides that
the Department ‘‘shall not decline to
consider information that is submitted
by an interested party and is necessary
to the determination but does not meet
all applicable requirements established
by the administering authority’’ if the
information is timely, can be verified, is
not so incomplete that it cannot be used,
and if the interested party acted to the
best of its ability in providing the
information. Where all of these
conditions are met, the statute requires
the Department to use the information if
it can do so without undue difficulties.
Section 776(b) of the Act further
provides that the Department may use
an adverse inference in applying the
facts otherwise available when a party
has failed to cooperate by not acting to
the best of its ability to comply with a
request for information. Section 776(b)
of the Act also authorizes the
Department to use as adverse facts
available (AFA) information derived
from the petition, the final
determination, a previous
administrative review, or other
information placed on the record.
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Section 776(c) of the Act provides
that, when the Department relies on
secondary information rather than on
information obtained in the course of an
investigation or review, it shall, to the
extent practicable, corroborate that
information from independent sources
that are reasonably at its disposal.
Secondary information is defined as
‘‘[i]nformation derived from the petition
that gave rise to the investigation or
review, the final determination
concerning the subject merchandise, or
any previous review under section 751
concerning the subject merchandise.’’
See Statement of Administrative Action
(SAA) accompanying the Uruguay
Round Agreements Act, H. Doc. No.
316, 103d Cong., 2d Session at 870
(1994). Corroborate means that the
Department will satisfy itself that the
secondary information to be used has
probative value. See SAA at 870. To
corroborate secondary information, the
Department will, to the extent
practicable, examine the reliability and
relevance of the information to be used.
The SAA emphasizes, however, that the
Department need not prove that the
selected facts available are the best
alternative information. See SAA at 869.
The Department has concluded that it
is appropriate to base the final
determination for Shandong Chenming
on facts otherwise available. Shandong
Chenming failed to respond fully to the
Department’s questionnaires and did
not respond at all to one questionnaire.
Also, on June 13, 2007, Shandong
Chenming withdrew its proprietary
information from the record. Thus,
Shandong Chenming withheld
information requested by the
Department. Consequently, the use of
facts otherwise available is warranted
under section 776(a)(2)(A) of the Act.
In selecting from among the facts
available, the Department has
determined that an adverse inference is
warranted, pursuant to section 776(b) of
the Act because, in addition to not fully
responding to all of our requests for
information, as of June 13, 2007,
Shandong Chenming withdrew from all
participation in the investigation and
did not provide the Department with the
opportunity to verify the information it
did submit. Thus, Shandong Chenming
failed to cooperate by not acting to the
best of its ability, and our final
determination is based on total AFA.
determination in the investigation, (3)
any previous review or determination,
or (4) any information placed on the
record. It is the Department’s practice to
select, as AFA, the highest calculated
rate in any segment of the proceeding.
See, e.g., Certain In–shell Roasted
Pistachios from the Islamic Republic of
Iran: Final Results of Countervailing
Duty Administrative Review, 71 FR
66165 (November 13, 2006), and
accompanying Issues and Decision
Memorandum at ‘‘Analysis of
Programs.’’
The Department’s practice when
selecting an adverse rate from among
the possible sources of information is to
ensure that the margin is sufficiently
adverse ‘‘as to effectuate the purpose of
the facts available role to induce
respondents to provide the Department
with complete and accurate information
in a timely manner.’’ See Notice of Final
Determination of Sales at Less than Fair
Value: Static Random Access Memory
Semiconductors From Taiwan; 63 FR
8909, 8932 (February 23, 1998). The
Department’s practice also ensures ‘‘that
the party does not obtain a more
favorable result by failing to cooperate
than if it had cooperated fully.’’ See
SAA at 870. In choosing the appropriate
balance between providing a respondent
with an incentive to respond accurately
and imposing a rate that is reasonably
related to the respondent’s prior
commercial activity, selecting the
highest prior margin ‘‘reflects a common
sense inference that the highest prior
margin is the most probative evidence of
current margins, because, if it were not
so, the importer, knowing of the rule,
would have produced current
information showing the margin to be
less.’’ See Rhone Poulenc, Inc. v. United
States, 899 F. 2d 1185, 1190 (Fed. Cir.
1990).
For these reasons the Department is
relying on the highest calculated final
subsidy rates for income tax, VAT, and
policy lending programs of the other
producer/exporter of the subject
merchandise in this investigation, GE, to
calculate the AFA rate for Shandong
Chenming. We do not need to
corroborate these rates because they are
not considered secondary information
as they are based on information
obtained in the course of this
investigation, pursuant to section 776(c)
of the Act.
Selection of the Adverse Facts
Available Rate
In deciding which facts to use as
AFA, section 776(b) of the Act and 19
CFR 351.308(c)(1) authorize the
Department to rely on information
derived from (1) the petition, (2) a final
Suspension of Liquidation
In accordance with section
705(c)(1)(B)(i)(I) of the Act, we have
calculated an individual rate for the
companies under investigation, GE and
Shandong Chenming. According to
section 705(c)(5)(A)(i) of the Act, the
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60647
Department excludes any rates
determined entirely under section 776
of the Act. As Shandong Chenming’s
rate was calculated under section 776 of
the Act, we have used the rate for GE
as the ‘‘all others’’ rate.
Exporter/Manufacturer
Gold East Paper (Jiangsu) Co.,
Ltd. ..............................................
Shandong Chenming Paper Holdings Ltd. ......................................
All Others ........................................
Net
Subsidy
Rate
7.40 %
44.25 %
7.40 %
As a result of our Preliminary
Determination and pursuant to section
703(d) of the Act, we instructed the U.S.
Customs and Border Protection (CBP) to
suspend liquidation of all entries of
coated free sheet paper from the PRC
which were entered or withdrawn from
warehouse, for consumption on or after
April 9, 2007, the date of the
publication of the Preliminary
Determination in the Federal Register.
In accordance with section 703(d) of the
Act, we instructed CBP to discontinue
the suspension of liquidation for
countervailing duty purposes for subject
merchandise entered on or after August
7, 2007, but to continue the suspension
of liquidation of entries made from
April 9, 2007, through August 7, 2007.
We will issue a countervailing duty
order and reinstate the suspension of
liquidation under section 706(a) of the
Act if the International Trade
Commission (ITC) issues a final
affirmative injury determination, and
will require a cash deposit of estimated
countervailing duties for such entries of
merchandise in the amounts indicated
above. If the ITC determines that
material injury, or threat of material
injury, does not exist, this proceeding
will be terminated and all estimated
duties deposited or securities posted as
a result of the suspension of liquidation
will be refunded or canceled.
ITC Notification
In accordance with section 705(d) of
the Act, we will notify the ITC of our
determination. In addition, we are
making available to the ITC all non–
privileged and non–proprietary
information related to this investigation.
We will allow the ITC access to all
privileged and business proprietary
information in our files, provided the
ITC confirms that it will not disclose
such information, either publicly or
under an APO, without the written
consent of the Assistant Secretary for
Import Administration.
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Comment 18: Attribution of Subsidies
Bestowed on Input Suppliers
Comment 19: Whether the
Department’s Cross–ownership
Regulations Provide for the
Attribution of Upstream Subsidies
to Cross–owned Companies
Comment 20: Attribution of Subsidies
Bestowed on the Forestry
Companies to CFS
Comment 21: Rate Adjustment for
GE’s Ad Valorem Subsidy Rate
Comment 22: Subsidies to Forestry
Companies Discovered After the
Preliminary Determination
Comment 23: Correction to GE’s
Domestic Sales Value
Comment 24: Application of Adverse
Facts Available to Chenming
Comment 25: Certification of Non–
Reimbursement of Duties
Return or Destruction of Proprietary
Information
In the event that the ITC issues a final
negative injury determination, this
notice will serve as the only reminder
to parties subject to an administrative
protective order (APO) of their
responsibility concerning the
destruction of proprietary information
disclosed under APO in accordance
with 19 CFR 351.305(a)(3). Timely
written notification of the return/
destruction of APO materials or
conversion to judicial protective order is
hereby requested. Failure to comply
with the regulations and terms of an
APO is a violation which is subject to
sanction.
This determination is published
pursuant to sections 705(d) and 777(i) of
the Act.
[FR Doc. E7–21046 Filed 10–24–07; 8:45 am]
BILLING CODE 3510–DS–S
Appendix
International Trade Administration
List of Comments and Issues in the
Decision Memorandum
mstockstill on PROD1PC66 with NOTICES
Dated: October 17, 2007.
David M. Spooner,
Assistant Secretary for Import
Administration.
[Application No. 85–14A18]
DEPARTMENT OF COMMERCE
Comment 1: Applicability of the CVD
Law to China
Comment 2: The Administrative
Procedures Act (APA) Claim
Comment 3: The Department’s
Justification for its Change in
Practice from Sulfanilic Acid from
Hungary
Comment 4: China’s WTO Accession
Protocol
Comment 5: Retroactive Application
of the CVD Law to China
Comment 6: Comparison of the
Department’s Findings in the
Georgetown Memo and the August
30 Market Economy Status Memo
Comment 7: Application of Adverse
Facts Available to the GOC
Comment 8: Policy Lending
Comment 9: Countervailability of
Foreign–denominated Loans
Comment 10: Benchmark for Policy
Lending
Comment 11: Adjustment for Long–
term Interest Rate Benchmark
Comment 12: Creditworthiness of GE
and its Cross–owned Companies
Comment 13: Application of a Risk
Premium to the Short–term Loan
Benchmark
Comment 14: Specificity of Programs
for FIEs
Comment 15: Over–calculation of the
Two Free/Three Half Benefit
Comment 16: Specificity of VAT
Programs
Comment 17: Attribution of GHS’
Subsidies to GE
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17:26 Oct 24, 2007
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Export Trade Certificate of Review
Notice of Application (#85–
14A18) to Amend the Export Trade
Certificate of Review Issued to U.S.
Shippers Association.
ACTION:
SUMMARY: Export Trading Company
Affairs, International Trade
Administration, Department of
Commerce, has received an application
to amend an Export Trade Certificate of
Review. This notice summarizes the
proposed amendment and requests
comments relevant to whether the
Certificate should be issued.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Anspacher, Director, Export
Trading Company Affairs, International
Trade Administration, (202) 482–5131
(this is not a toll-free number) or E-mail
at: oetca@ita.doc.gov.
SUPPLEMENTARY INFORMATION: Title III of
the Export Trading Company Act of
1982 (15 U.S.C. 4001–21) authorizes the
Secretary of Commerce to issue Export
Trade Certificates of Review. An Export
Trade Certificate of Review protects the
holder and the members identified in
the Certificate from state and federal
government antitrust actions and from
private treble damage antitrust actions
for the export conduct specified in the
Certificate and carried out in
compliance with its terms and
conditions. Section 302(b)(1) of the
Export Trading Company Act of 1982
and 15 CFR 325.6(a) require the
Secretary to publish a notice in the
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Federal Register identifying the
applicant and summarizing its proposed
export conduct.
Request for Public Comments
Interested parties may submit written
comments relevant to the determination
whether an amended Certificate should
be issued. If the comments include any
privileged or confidential business
information, it must be clearly marked
and a nonconfidential version of the
comments (identified as such) should be
included. Any comments not marked
privileged or confidential business
information will be deemed to be
nonconfidential. An original and five (5)
copies, plus two (2) copies of the
nonconfidential version, should be
submitted no later than 20 days after the
date of this notice to: Export Trading
Company Affairs, International Trade
Administration, U.S. Department of
Commerce, Room 7021–X H,
Washington, DC 20230. Information
submitted by any person is exempt from
disclosure under the Freedom of
Information Act (5 U.S.C. 552).
However, nonconfidential versions of
the comments will be made available to
the applicant if necessary for
determining whether or not to issue the
Certificate. Comments should refer to
this application as ‘‘Export Trade
Certificate of Review, application
number 85–14A18.’’
The U.S. Shippers Association’s
original Certificate was issued on June
3, 1986 (51 FR 20873, June 9, 1986), and
last amended on April 6, 2006 (71 FR
18721, April 12, 2006).
A summary of the current application
for an amendment follows.
Summary of the Application:
Applicant: U.S. Shippers Association
(‘‘USSA’’), 344 Canford Park East,
Canton, Michigan 48187.
Contact: John S. Chinn, Project
Director, Telephone: (734) 927–4328.
Application No.: 85–14A18.
Date Deemed Submitted: October 18,
2007.
Proposed Amendment: USSA seeks to
amend its Certificate to add the
following company as a new ‘‘Member’’
of the Certificate within the meaning of
section 325.2(1) of the Regulations (15
CFR 325.2(1)): Cook Composites and
Polymers Co., North Kansas City,
Missouri (controlling entity: TOTAL
Holdings USA, Inc., Houston Texas).
Dated: October 19, 2007.
Jeffrey C. Anspacher,
Director, Export Trading Company Affairs.
[FR Doc. E7–20972 Filed 10–24–07; 8:45 am]
BILLING CODE 3510–DR–P
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]]>Agencies
[Federal Register Volume 72, Number 206 (Thursday, October 25, 2007)]
[Notices]
[Pages 60645-60648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-21046]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-907]
Coated Free Sheet Paper from the People's Republic of China:
Final Affirmative Countervailing Duty Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Department) has made a final
determination that countervailable subsidies are being provided to
producers and exporters of coated free sheet (CFS) paper from the
People's Republic of China. For information on the estimated
countervailing duty rates, please see the ``Suspension of Liquidation''
section, below.
EFFECTIVE DATE: October 25, 2007.
FOR FURTHER INFORMATION CONTACT: David Layton or David Neubacher, AD/
CVD Operations, Office 1, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
0371 or (202) 482-5823, respectively.
SUPPLEMENTARY INFORMATION:
Petitioner
The petitioner in this investigation is the NewPage Corporation
(petitioner).
Period of Investigation
The period for which we are measuring subsidies, or period of
investigation, is January 1, 2005, through December 31, 2005.
Case History
The following events have occurred since the announcement of the
preliminary determination on March 30, 2007, and subsequent publication
in the Federal Register on April 9, 2007. See Coated Free Sheet Paper
from the People's Republic of China: Amended Affirmative Preliminary
Countervailing Duty Determination, 72 FR 17484 (April 9, 2007)
(Preliminary Determination).
On April 9, 2007, Gold East Paper (Jiangsu) Co., Ltd. (GE) and the
petitioner submitted ministerial error allegations relating to the
Preliminary Determination. We addressed these ministerial error
allegations in a May 11, 2007, memorandum to Stephen J. Claeys, Deputy
Assistant Secretary for Import Administration, entitled Ministerial
Error Allegations, which is on file in the Central Records Unit (CRU),
Room B-099 of the main Department building.
On April 12, 2007, the Department requested that GE amend the
bracketing and resubmit its March 9, 2007, supplemental questionnaire
response, which GE did on April 17, 2007.
We issued a supplemental questionnaire to the Government of the
People's Republic of China (GOC) on April 23, 2007, and to GE and
Shandong Chenming Paper Holdings Ltd. (Shandong Chenming) on April 20,
2007. We received the GOC's supplemental questionnaire response on May
13, 2007, Shandong Chenming's supplemental questionnaire response on
May 18, 2007, and GE's supplemental response on May 25, 2007. On May
25, 2007, we issued a supplemental questionnaire to Shandong Chenming,
but did not receive a response. The GOC, GE, the petitioner, and
interested parties also submitted factual information, comments, and
arguments at numerous instances prior to the final determination based
on various deadlines for submissions of factual information and/or
arguments established by the Department subsequent to the Preliminary
Determination.
On May 2, 2007, the Department published notification of alignment
of the final determinations in the antidumping and countervailing duty
investigations of CFS paper from the People's Republic of China (PRC).
See Coated Free Sheet Paper from Indonesia, the People's Republic of
China, and the Republic of Korea: Alignment of Final Countervailing
Duty Determinations with Final Antidumping Duty Determinations, 72 FR
24277 (May 2, 2007). The Department subsequently postponed the final
determinations for the antidumping and countervailing investigations of
CFS paper from the PRC. See Preliminary Determination of Sales at Less
Than Fair Value and Postponement of Final Determination: Coated Free
Sheet Paper from the People's Republic of China, 72 FR 30758 (June 4,
2007).
On June 13, 2007, we received a letter from Shandong Chenming
withdrawing its participation in the investigation and requesting that
all of its business proprietary information be removed from the record
and destroyed. On June 27, 2007, the Department notified Shandong
Chenming that it had
[[Page 60646]]
removed and destroyed the company's submitted proprietary information
from the record of this investigation and would direct all interested
parties under the Administrative Protective Order (APO) to certify its
destruction. All interested parties certified destruction of Shandong
Chenming's proprietary information.
From July 11 to July 28, 2007, we conducted verification of the
questionnaire responses submitted by the GOC and GE.
On August 30, 2007, we issued our preliminary determination
regarding the creditworthiness of GE and its cross-owned companies. We
addressed our preliminary findings in a August 30, 2007, memorandum to
David M. Spooner, Assistant Secretary for Import Administration,
entitled Preliminary Creditworthiness Determination for Gold East Paper
(Jiangsu) Co., Ltd. and its Cross-Owned Companies, which is on file in
the CRU.
We received case briefs from the GOC; GE; the petitioner; and the
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union, AFL-CIO-CLC on
September 7, 2007. The same parties submitted rebuttal briefs on
September 12, 2007. We held a hearing for this investigation on
September 18, 2007.
Scope of the Investigation
The merchandise covered by this investigation includes coated free
sheet paper and paperboard of a kind used for writing, printing or
other graphic purposes. Coated free sheet paper is produced from not-
more-than 10 percent by weight mechanical or combined chemical/
mechanical fibers. Coated free sheet paper is coated with kaolin (China
clay) or other inorganic substances, with or without a binder, and with
no other coating. Coated free sheet paper may be surface-colored,
surface-decorated, printed (except as described below), embossed, or
perforated. The subject merchandise includes single- and double-side-
coated free sheet paper; coated free sheet paper in both sheet or roll
form; and is inclusive of all weights, brightness levels, and finishes.
The terms ``wood free'' or ``art'' paper may also be used to describe
the imported product.
Excluded from the scope are: (1) coated free sheet paper that is
imported printed with final content printed text or graphics; (2) base
paper to be sensitized for use in photography; and (3) paper containing
by weight 25 percent or more cotton fiber.
Coated free sheet paper is classifiable under subheadings
4810.13.1900, 4810.13.2010, 4810.13.2090, 4810.13.5000, 4810.13.7040,
4810.14.1900, 4810.14.2010, 4810.14.2090, 4810.14.5000, 4810.14.7040,
4810.19.1900, 4810.19.2010, and 4810.19.2090 of the Harmonized Tariff
Schedule of the United States (HTSUS). While HTSUS subheadings are
provided for convenience and customs purposes, our written description
of the scope of these investigations is dispositive.
Scope Comments
On August 20, August 28, and September 10, 2007, the petitioner
requested that the Department clarify the scope of the antidumping and
countervailing duty investigations of CFS paper from Indonesia, Korea
and the People's Republic of China. Specifically, the petitioner asked
the Department to ``clarify that the scope of the investigation
includes coated free sheet paper containing hardwood BCTMP.''
Because this was a general issue pertaining to all six
investigations, the Department set up a general issues file to handle
this scope request. A hearing on the scope request was held on
September 26, 2007. The hearing comprised a public session, a closed
session for the antidumping investigation from Korea, and a closed
session for the countervailing duty investigation from the PRC. After
considering the comments submitted by the parties to these
investigations, we have determined not to adopt the scope clarification
sought by the petitioner. See Memorandum to Stephen J. Claeys, Deputy
Assistant Secretary for Import Administration, entitled ``Scope
Clarification Request: NewPage Corporation,'' dated concurrently with
this notice, which is appended to the ``Issues and Decision Memorandum
for Final Determination'' from Stephen J. Claeys, Deputy Assistant
Secretary for Import Administration, to David M. Spooner, Assistant
Secretary for Import Administration, dated October 17, 2007 (Decision
Memorandum).
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this investigation are addressed in the Decision Memorandum, which is
hereby adopted by this notice. Attached to this notice as an Appendix
is a list of the issues that parties have raised and to which we have
responded in the Decision Memorandum. Parties can find a complete
discussion of all issues raised in this investigation and the
corresponding recommendations in this public memorandum, which is on
file in the CRU. In addition, a complete version of the Decision
Memorandum can be accessed directly on the Internet at https://
ia.ita.doc.gov/frn/. The paper copy and electronic version of the
Decision Memorandum are identical in content.
Use of Adverse Facts Available
Sections 776(a)(1) and (2) of the Act provide that the Department
shall apply ``facts otherwise available'' if, inter alia, necessary
information is not on the record or an interested party or any other
person: (A) withholds information that has been requested; (B) fails to
provide information within the deadlines established, or in the form
and manner requested by the Department, subject to subsections (c)(1)
and (e) of section 782 of the Act; (C) significantly impedes a
proceeding; or (D) provides information that cannot be verified as
provided by section 782(i) of the Act.
Where the Department determines that a response to a request for
information does not comply with the request, section 782(d) of the Act
provides that the Department will so inform the party submitting the
response and will, to the extent practicable, provide that party the
opportunity to remedy or explain the deficiency. If the party fails to
remedy the deficiency within the applicable time limits and subject to
section 782(e) of the Act, the Department may disregard all or part of
the original and subsequent responses, as appropriate. Section 782(e)
of the Act provides that the Department ``shall not decline to consider
information that is submitted by an interested party and is necessary
to the determination but does not meet all applicable requirements
established by the administering authority'' if the information is
timely, can be verified, is not so incomplete that it cannot be used,
and if the interested party acted to the best of its ability in
providing the information. Where all of these conditions are met, the
statute requires the Department to use the information if it can do so
without undue difficulties.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying the facts otherwise available when
a party has failed to cooperate by not acting to the best of its
ability to comply with a request for information. Section 776(b) of the
Act also authorizes the Department to use as adverse facts available
(AFA) information derived from the petition, the final determination, a
previous administrative review, or other information placed on the
record.
[[Page 60647]]
Section 776(c) of the Act provides that, when the Department relies
on secondary information rather than on information obtained in the
course of an investigation or review, it shall, to the extent
practicable, corroborate that information from independent sources that
are reasonably at its disposal. Secondary information is defined as
``[i]nformation derived from the petition that gave rise to the
investigation or review, the final determination concerning the subject
merchandise, or any previous review under section 751 concerning the
subject merchandise.'' See Statement of Administrative Action (SAA)
accompanying the Uruguay Round Agreements Act, H. Doc. No. 316, 103d
Cong., 2d Session at 870 (1994). Corroborate means that the Department
will satisfy itself that the secondary information to be used has
probative value. See SAA at 870. To corroborate secondary information,
the Department will, to the extent practicable, examine the reliability
and relevance of the information to be used. The SAA emphasizes,
however, that the Department need not prove that the selected facts
available are the best alternative information. See SAA at 869.
The Department has concluded that it is appropriate to base the
final determination for Shandong Chenming on facts otherwise available.
Shandong Chenming failed to respond fully to the Department's
questionnaires and did not respond at all to one questionnaire. Also,
on June 13, 2007, Shandong Chenming withdrew its proprietary
information from the record. Thus, Shandong Chenming withheld
information requested by the Department. Consequently, the use of facts
otherwise available is warranted under section 776(a)(2)(A) of the Act.
In selecting from among the facts available, the Department has
determined that an adverse inference is warranted, pursuant to section
776(b) of the Act because, in addition to not fully responding to all
of our requests for information, as of June 13, 2007, Shandong Chenming
withdrew from all participation in the investigation and did not
provide the Department with the opportunity to verify the information
it did submit. Thus, Shandong Chenming failed to cooperate by not
acting to the best of its ability, and our final determination is based
on total AFA.
Selection of the Adverse Facts Available Rate
In deciding which facts to use as AFA, section 776(b) of the Act
and 19 CFR 351.308(c)(1) authorize the Department to rely on
information derived from (1) the petition, (2) a final determination in
the investigation, (3) any previous review or determination, or (4) any
information placed on the record. It is the Department's practice to
select, as AFA, the highest calculated rate in any segment of the
proceeding. See, e.g., Certain In-shell Roasted Pistachios from the
Islamic Republic of Iran: Final Results of Countervailing Duty
Administrative Review, 71 FR 66165 (November 13, 2006), and
accompanying Issues and Decision Memorandum at ``Analysis of
Programs.''
The Department's practice when selecting an adverse rate from among
the possible sources of information is to ensure that the margin is
sufficiently adverse ``as to effectuate the purpose of the facts
available role to induce respondents to provide the Department with
complete and accurate information in a timely manner.'' See Notice of
Final Determination of Sales at Less than Fair Value: Static Random
Access Memory Semiconductors From Taiwan; 63 FR 8909, 8932 (February
23, 1998). The Department's practice also ensures ``that the party does
not obtain a more favorable result by failing to cooperate than if it
had cooperated fully.'' See SAA at 870. In choosing the appropriate
balance between providing a respondent with an incentive to respond
accurately and imposing a rate that is reasonably related to the
respondent's prior commercial activity, selecting the highest prior
margin ``reflects a common sense inference that the highest prior
margin is the most probative evidence of current margins, because, if
it were not so, the importer, knowing of the rule, would have produced
current information showing the margin to be less.'' See Rhone Poulenc,
Inc. v. United States, 899 F. 2d 1185, 1190 (Fed. Cir. 1990).
For these reasons the Department is relying on the highest
calculated final subsidy rates for income tax, VAT, and policy lending
programs of the other producer/exporter of the subject merchandise in
this investigation, GE, to calculate the AFA rate for Shandong
Chenming. We do not need to corroborate these rates because they are
not considered secondary information as they are based on information
obtained in the course of this investigation, pursuant to section
776(c) of the Act.
Suspension of Liquidation
In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have
calculated an individual rate for the companies under investigation, GE
and Shandong Chenming. According to section 705(c)(5)(A)(i) of the Act,
the Department excludes any rates determined entirely under section 776
of the Act. As Shandong Chenming's rate was calculated under section
776 of the Act, we have used the rate for GE as the ``all others''
rate.
------------------------------------------------------------------------
Net
Exporter/Manufacturer Subsidy
Rate
------------------------------------------------------------------------
Gold East Paper (Jiangsu) Co., Ltd............................ 7.40
[percnt]
Shandong Chenming Paper Holdings Ltd.......................... 44.25
[percnt]
All Others.................................................... 7.40
[percnt]
------------------------------------------------------------------------
As a result of our Preliminary Determination and pursuant to
section 703(d) of the Act, we instructed the U.S. Customs and Border
Protection (CBP) to suspend liquidation of all entries of coated free
sheet paper from the PRC which were entered or withdrawn from
warehouse, for consumption on or after April 9, 2007, the date of the
publication of the Preliminary Determination in the Federal Register.
In accordance with section 703(d) of the Act, we instructed CBP to
discontinue the suspension of liquidation for countervailing duty
purposes for subject merchandise entered on or after August 7, 2007,
but to continue the suspension of liquidation of entries made from
April 9, 2007, through August 7, 2007.
We will issue a countervailing duty order and reinstate the
suspension of liquidation under section 706(a) of the Act if the
International Trade Commission (ITC) issues a final affirmative injury
determination, and will require a cash deposit of estimated
countervailing duties for such entries of merchandise in the amounts
indicated above. If the ITC determines that material injury, or threat
of material injury, does not exist, this proceeding will be terminated
and all estimated duties deposited or securities posted as a result of
the suspension of liquidation will be refunded or canceled.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the
ITC of our determination. In addition, we are making available to the
ITC all non-privileged and non-proprietary information related to this
investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC
confirms that it will not disclose such information, either publicly or
under an APO, without the written consent of the Assistant Secretary
for Import Administration.
[[Page 60648]]
Return or Destruction of Proprietary Information
In the event that the ITC issues a final negative injury
determination, this notice will serve as the only reminder to parties
subject to an administrative protective order (APO) of their
responsibility concerning the destruction of proprietary information
disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely
written notification of the return/destruction of APO materials or
conversion to judicial protective order is hereby requested. Failure to
comply with the regulations and terms of an APO is a violation which is
subject to sanction.
This determination is published pursuant to sections 705(d) and
777(i) of the Act.
Dated: October 17, 2007.
David M. Spooner,
Assistant Secretary for Import Administration.
Appendix
List of Comments and Issues in the Decision Memorandum
Comment 1: Applicability of the CVD Law to China
Comment 2: The Administrative Procedures Act (APA) Claim
Comment 3: The Department's Justification for its Change in
Practice from Sulfanilic Acid from Hungary
Comment 4: China's WTO Accession Protocol
Comment 5: Retroactive Application of the CVD Law to China
Comment 6: Comparison of the Department's Findings in the
Georgetown Memo and the August 30 Market Economy Status Memo
Comment 7: Application of Adverse Facts Available to the GOC
Comment 8: Policy Lending
Comment 9: Countervailability of Foreign-denominated Loans
Comment 10: Benchmark for Policy Lending
Comment 11: Adjustment for Long-term Interest Rate Benchmark
Comment 12: Creditworthiness of GE and its Cross-owned Companies
Comment 13: Application of a Risk Premium to the Short-term Loan
Benchmark
Comment 14: Specificity of Programs for FIEs
Comment 15: Over-calculation of the Two Free/Three Half Benefit
Comment 16: Specificity of VAT Programs
Comment 17: Attribution of GHS' Subsidies to GE
Comment 18: Attribution of Subsidies Bestowed on Input Suppliers
Comment 19: Whether the Department's Cross-ownership Regulations
Provide for the Attribution of Upstream Subsidies to Cross-owned
Companies
Comment 20: Attribution of Subsidies Bestowed on the Forestry
Companies to CFS
Comment 21: Rate Adjustment for GE's Ad Valorem Subsidy Rate
Comment 22: Subsidies to Forestry Companies Discovered After the
Preliminary Determination
Comment 23: Correction to GE's Domestic Sales Value
Comment 24: Application of Adverse Facts Available to Chenming
Comment 25: Certification of Non-Reimbursement of Duties
[FR Doc. E7-21046 Filed 10-24-07; 8:45 am]
BILLING CODE 3510-DS-S
