Certain Polyester Staple Fiber from Korea: Final Results of the 2005-2006 Antidumping Duty Administrative Review, 69663-69666 [E7-23894]

Download as PDF Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices Scope Rulings The Department has issued the following scope rulings: (1) On August 25, 1997, the Department issued a scope ruling, finding that multicolored pasta, imported in kitchen display bottles of decorative glass that are sealed with cork or paraffin and bound with raffia, is excluded from the scope of the order.8 (2) On July 30, 1998, the Department issued a scope ruling, finding that multipacks consisting of six one-pound packages of pasta that are shrinkwrapped into a single package are within the scope of the order.9 (3) On October 23, 1997, the petitioners filed a request that the Department initiate an anticircumvention investigation against Barilla, an Italian producer and exporter of pasta. On October 5, 1998, the Department issued a final determination that, pursuant to section 781(a) of the Act, Barilla was circumventing the antidumping duty order by exporting bulk pasta from Italy, which it subsequently repackaged in the United States into packages of five pounds or less for sale in the United States.10 (4) On October 26, 1998, the Department self-initiated a scope inquiry to determine whether a package weighing over five pounds as a result of allowable industry tolerances may be within the scope of the order. On May 24, 1999, we issued a final scope ruling finding that, effective October 26, 1998, pasta in packages weighing up to (and including) five pounds four ounces, and so labeled, is within the scope of the order.11 rmajette on PROD1PC64 with NOTICES Partial Rescission of Review If a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review, the Secretary will rescind the review pursuant to 19 CFR 351.213(d)(1). In this case, petitioners, Valdigrano, and Indalco withdrew their requests for administrative reviews within 90 days from the date of initiation. No other party requested review of the companies covered by each of the requests for 8 See Memorandum from Edward Easton to Richard Moreland, dated August 25, 1997. 9 See letter from Susan H. Kuhbach, Acting Deputy Assistant Secretary for Import Administration, to Barbara P. Sidari, Vice President, Joseph A. Sidari Company, Inc., dated July 30, 1998. 10 See Anti-circumvention Inquiry of the Antidumping Duty Order on Certain Pasta from Italy: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 63 FR 54672 (October 13, 1998). 11 See Memorandum from John Brinkmann to Richard Moreland, dated May 24, 1999. VerDate Aug<31>2005 15:35 Dec 07, 2007 Jkt 214001 review. Therefore, we are rescinding this review of the antidumping duty order on certain pasta from Italy, in part, with respect to Rummo, Pagani, Russo, Domenico, Indalco, Valdigrano and Atar. The Department will issue appropriate assessment instructions directly to U.S. Customs and Border Protection (CBP) 15 days after the publication of this notice. The Department will direct CBP to assess antidumping duties at the cash deposit rate in effect on the date of entry for entries during the period July 1, 2006, through June 30, 2006. This notice is in accordance with section 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 251.213(d)(4). Dated: December 3, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7–23892 Filed 12–7–07; 8:45 am] BILLING CODE 3510–DS–P DEPARTMENT OF COMMERCE International Trade Administration [A–580–839] Certain Polyester Staple Fiber from Korea: Final Results of the 2005–2006 Antidumping Duty Administrative Review Import Administration, International Trade Administration, Department of Commerce. SUMMARY: On June 6, 2007, the Department of Commerce published the preliminary results of the sixth administrative review of the antidumping duty order on certain polyester staple fiber from the Republic of Korea. The review covers the shipments of subject merchandise to the United States by Huvis Corporation and Dongwoo Industry Co., Ltd. Based on our analysis of the comments received from interested parties and an examination of our calculations, we have made certain changes for the final results. The final weighted–average dumping margins are listed below in the ‘‘Final Results of the Review’’ section of this notice. EFFECTIVE DATE: December 10, 2007. FOR FURTHER INFORMATION CONTACT: Andrew McAllister or Brandon Farlander, Office 1, AD/CVD Operations, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) AGENCY: PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 69663 482–1174 and (202) 482–0182, respectively. SUPPLEMENTARY INFORMATION: Background On June 6, 2007, the Department of Commerce (‘‘the Department’’) published Certain Polyester Staple Fiber from Korea: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Intent to Rescind, 72 FR 31279 (June 6, 2007) (‘‘Preliminary Results’’) in the Federal Register. On July 12, 2007, the Department issued a memorandum releasing shipment data for Dongwoo Industry Co., Ltd. (‘‘Dongwoo’’). On July 17, 2007, the Department issued a memorandum releasing these shipment data to legal counsel for Dongwoo. We invited parties to comment on the preliminary results. On July 27, 2007, Wellman, Inc.; Invista, S.a.r.L.; and DAK Americas, LLC (collectively, ‘‘the petitioners’’), Huvis Corporation (‘‘Huvis’’), and Consolidated Fibers Inc. (‘‘Consolidated Fibers’’) (an importer of subject merchandise sales by Dongwoo)/ Dongwoo, filed case briefs. On August 3, 2007, the Department rejected Consolidated Fibers/Dongwoo’s case brief because the brief contained untimely filed new factual information. Also, on August 3, 2007, the Department requested comments from interested parties on the discrepancies between information provided in Dongwoo’s August 10, 2006, questionnaire response and information contained in the Department’s July 12, 2007, memorandum. On August 7, 2007, we received a revised case brief from Consolidated Fibers/Dongwoo. We received no comments from interested parties regarding Dongwoo’s discrepancies. On August 24, 2007, the petitioners and Huvis filed rebuttal briefs. On September 28, 2007, the Department published in the Federal Register an extension of the time limit for the completion of the final results of this review until no later than December 3, 2007, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (‘‘the Act’’), and 19 CFR 351.213(h)(2). See Certain Polyester Staple Fiber from Korea: Notice of Extension of Time Limit for the Final Results of the 2005–2006 Antidumping Duty Administrative Review, 72 FR 1703 (September 28, 2007). Scope of the Order For the purposes of this order, the product covered is certain polyester staple fiber (‘‘PSF’’). PSF is defined as E:\FR\FM\10DEN1.SGM 10DEN1 69664 Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices 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 merchandise subject to this order 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. Merchandise of less than 3.3 decitex (less than 3 denier) currently classifiable under the Harmonized Tariff Schedule of the United States (‘‘HTSUS’’) at subheading 5503.20.00.25 is specifically excluded from this order. Also specifically excluded from this order are polyester staple fibers of 10 to 18 denier that are cut to lengths of 6 to 8 inches (fibers used in the manufacture of carpeting). In addition, low–melt PSF is excluded from this order. Low–melt PSF is defined as a bi–component fiber with an outer sheath that melts at a significantly lower temperature than its inner core. The merchandise subject to this order is currently classifiable in the HTSUS at subheadings 5503.20.00.45 and 5503.20.00.65. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise under the order is dispositive. Period of Review The period of review (‘‘POR’’) is May 1, 2005, through April 30, 2006. rmajette on PROD1PC64 with NOTICES Application of Adverse Facts Available Section 776(a) of the Act provides that the Department will apply ‘‘facts otherwise available’’ if, inter alia, necessary information is not available on the record or an interested party: 1) withholds information that has been requested by the Department; 2) fails to provide such information within the deadlines established, or in the form or manner requested by the Department, subject to subsections (c)(1) and (e) of section 782 of the Act; 3) significantly impedes a proceeding; or 4) provides such information, but the information cannot be verified. In its August 10, 2006, questionnaire response, Dongwoo reported that it made no sales or shipments of subject merchandise to the United States during the POR. However, on July 12, 2007, we placed a memorandum on the record confirming through U.S. Customs and Border Protection data that Dongwoo made shipments to the United States during the POR. VerDate Aug<31>2005 15:35 Dec 07, 2007 Jkt 214001 Although the deadline to submit new factual information had passed, on August 3, 2007, we sought comments on the discrepancies between information provided in Dongwoo’s August 10, 2006, questionnaire response and the Department’s July 12, 2007, memorandum. Dongwoo did not provide any comments. By asserting in its original questionnaire response that it had no sales or shipments to the United States, Dongwoo failed to provide the requested information. In doing so, Dongwoo withheld requested information and significantly impeded the proceeding. Therefore, pursuant to sections 776(a)(2)(A) and (C) of the Act, the Department finds that the use of total facts available is appropriate. According to section 776(b) of the Act, if the Department finds that an interested party fails to cooperate by not acting to the best of its ability to comply with requests for information, the Department may use an inference that is adverse to the interests of that party in selecting from the facts otherwise available. See also Notice of Final Results of Antidumping Duty Administrative Review: Stainless Steel Bar from India, 70 FR 54023, 54025–26 (September 13, 2005); and Notice of Final Determination of Sales at Less Than Fair Value and Final Negative Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from Brazil, 67 FR 55792, 55794–96 (August 30, 2002). It is the Department’s practice to apply adverse inferences to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully. See, e.g., Statement of Administrative Action accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103–316, Vol. 1, at 870 (1994) (SAA), reprinted in 1994 U.S.C.C.A.N. 4040, 4198–99. Furthermore, ‘‘affirmative evidence of bad faith on the part of a respondent is not required before the Department may make an adverse inference.’’ See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997); see also Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382–83 (Fed. Cir. 2003) (‘‘Nippon’’). We find that Dongwoo did not act to the best of its abilities in this proceeding, within the meaning of section 776(b) of the Act, because it withheld information specifically requested by the Department. Therefore, an adverse inference is warranted in selecting from the facts otherwise available with respect to this company. See Nippon, 337 F.3d at 1382–83. Section 776(b) of the Act provides that the Department may use as AFA, PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 information derived from: 1) the petition; 2) the final determination in the investigation; 3) any previous review; or 4) any other information placed on the record. The Department’s practice, when selecting an AFA rate from among the possible sources of information, has been to ensure that the margin is sufficiently adverse ‘‘as to effectuate the statutory purposes of the adverse facts available rule to induce respondents to provide the Department with complete and accurate information in a timely manner.’’ See, e.g., Certain Steel Concrete Reinforcing Bars from Turkey; Final Results and Rescission of Antidumping Duty Administrative Review in Part, 71 FR 65082, 65084 (November 7, 2006). In this case, the Department considered: 1) the rates alleged in the petition, which ranged from 48.14 to 84.03 percent; 2) the rates calculated in the final determination of the investigation, which ranged from 0.12 to 7.91 percent (see Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Polyester Staple Fiber from the Republic of Korea, and Antidumping Duty Orders: Certain Polyester Staple Fiber from the Republic of Korea and Taiwan, 65 FR 33807, 33808 (May 25, 2000); see also Certain Polyester Staple Fiber from the Republic of Korea: Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision, 70 FR 74552, 74553 (December 24, 2003)); and 3) the rate calculated in the fourth administrative review, i.e., 5.87 percent (see Notice of Final Results of Antidumping Duty Administrative Review: Certain Polyester Staple Fiber from the Republic of Korea, 70 FR 73435, 73436 (December 12, 2005)). In order to ensure that the margin is sufficiently adverse so as to induce cooperation, we have assigned a rate of 48.14 percent, which is the lowest rate alleged in the petition, as modified in the Department’s initiation notice. See Initiation of Antidumping Duty Investigations: Certain Polyester Staple Fiber From the Republic of Korea and Taiwan, 69 FR 23053, 23055 (April 29, 1999) (‘‘LTFV Initiation’’). The Department finds that this rate is sufficiently high to effectuate the purpose of the facts available rule (i.e., we find that this rate is high enough to encourage participation in future segments of this proceeding in accordance with section 776(b) of the Act). Information from the petition and prior segments of the proceeding constitutes secondary information and section 776(c) of the Act provides that the Department shall, to the extent E:\FR\FM\10DEN1.SGM 10DEN1 rmajette on PROD1PC64 with NOTICES Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices practicable, corroborate that secondary information from independent sources reasonably at its disposal. The Department’s regulations provide that ‘‘corroborate’’ means that the Department will satisfy itself that the secondary information to be used has probative value. See 19 CFR 351.308(d); see also SAA at 870. To the extent practicable, the Department will examine the reliability and relevance of the information to be used. To corroborate the petition margin, we compared it to the transaction– specific rates calculated for the participating respondent in this review. We find that it is reliable and relevant because the lowest transaction–specific petition rate is comparable to the range of individual transaction margins calculated for the participating respondent. See Certain Frozen Warmwater Shrimp from India: Preliminary Results and Partial Rescission of Antidumping Duty Administrative Review, 72 FR 10658, 10663 (March 7, 2007) (unchanged in the final results). Further, the Department will consider information reasonably at its disposal as to whether there are circumstances that would render a margin inappropriate. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department may disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department disregarded the highest calculated margin as AFA because the margin was based on a company’s uncharacteristic business expense resulting in an unusually high margin). In the instant case, we examined whether any information on the record would discredit the selected rate as reasonable facts available. Specifically, we reviewed the quantities involved in the transaction–specific rates used for corroboration purposes and we note that the quantities of these transactions are quantities typical of the participating respondent’s normal transactions. See Memorandum from Team to the File, ‘‘Corroboration of Data Contained in the Petition for Assigning Facts Available Rates in the 2005–2006 Antidumping Duty Administrative Review of Certain Polyester Staple Fiber from Korea,’’ dated December 3, 2007 (‘‘Corroboration Memo’’). Therefore, we have determined that the 48.14 percent margin is appropriate as AFA and are assigning it to Dongwoo. VerDate Aug<31>2005 15:35 Dec 07, 2007 Jkt 214001 Analysis of Comments Received All issues raised in the case and rebuttal briefs by parties to this review are addressed in the December 3, 2007, Issues and Decision Memorandum for the Sixth Antidumping Duty Administrative Review of Certain Polyester Staple Fiber from the Republic of Korea (‘‘Decision Memorandum’’), which is hereby adopted by this notice. Attached to this notice as an appendix is a list of the issues which 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 review and the corresponding recommendations in this public memorandum, which is on file in the Department’s Central Records Unit, Room B–099 of the main Department building (‘‘CRU’’). In addition, a complete version of the Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/ fxsp0;frn/index.html. The paper copy and electronic version of the Decision Memorandum are identical in content. Fair Value Comparisons To determine whether sales of PSF from Korea to the United States were made at less than normal value, we compared export price (‘‘EP’’) to the NV. We calculated EP, NV, constructed value (‘‘CV’’), and the cost of production (‘‘COP’’), based on the same methodologies used in the Preliminary Results, with the following exceptions: To establish a market value for the input QTA pursuant to the major input rule, the Department applied a proxy market price calculated from the affiliated supplier’s financial statements in the preliminary results. Based upon a further review of the record of this proceeding, we have determined that MTA can be substituted for QTA in similar quantities to produce the same amount of finished PSF. Therefore, for the final results, we have used the market price of MTA reported by Huvis as a proxy for the market price of QTA. Based on this, we made an adjustment to the value of QTA to reflect the difference between the transfer price of QTA and the higher of the COP of QTA or the market price of MTA. See Decision Memorandum at Comments 4 and 5; see also Memorandum from Team to File, ‘‘2005/2006 Antidumping Duty Administrative Review of Certain Polyester Staple Fiber from Korea Final Results Calculation Memorandum for Huvis Corporation,’’ dated December 3, 2007 (‘‘Huvis Final Calculation Memorandum’’). In the preliminary results, we allowed Huvis to exclude impairment losses PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 69665 related to property, plant, and equipment from SK Chemicals’ SG&A expenses. For the final results, we determine that these impairment losses are ordinary losses and represent real economic losses. Therefore, we have included these impairment losses in SK Chemicals’ SG&A expenses because these losses are part of the general operations of SK Chemicals. See Decision Memorandum at Comment 7; see also Huvis Final Calculation Memorandum. Final Results of the Review We find that the following percentage margins exist for the period May 1, 2005, through April 30, 2006: Exporter/manufacturer Dongwoo Industry Co., Ltd. ............................ Huvis Corporation ......... Weighted–average margin percentage 48.14 2.51 Assessment Rates The Department has treated Huvis as the importer of record for certain POR shipments. Pursuant to 19 CFR 351.212(b)(1), for all sales where Huvis is the importer of record, Huvis submitted the reported entered value of the U.S. sales and we calculated importer–specific assessment rates based on the ratio of the total amount of antidumping duties calculated for the examined sales to the total entered value of those sales. Regarding sales where Huvis was not the importer of record, we note that Huvis did not report the entered value for the U.S. sales in question. Accordingly, we calculated importer– specific assessment rates for the merchandise in question by aggregating the dumping margins calculated for all U.S. sales to each importer and dividing this amount by the total quantity of those sales. To determine whether the duty assessment rates were de minimis, in accordance with the requirement set forth in 19 CFR 351.106(c)(2), we calculated importer–specific ad valorem ratios based on the estimated entered value. Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate without regard to antidumping duties any entries for which the assessment rate is de minimis (i.e., less than 0.50 percent). The Department will issue appropriate assessment instructions to CBP 15 days after publication of these final results of review. The Department clarified its ‘‘automatic assessment’’ regulation on May 6, 2003. See Antidumping and Countervailing Duty Proceedings: E:\FR\FM\10DEN1.SGM 10DEN1 69666 Federal Register / Vol. 72, No. 236 / Monday, December 10, 2007 / Notices Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This clarification will apply to entries of subject merchandise during the POR produced by companies included in these final results for which the reviewed companies did not know their merchandise was destined for the United States. In such instances, we will instruct CBP to liquidate unreviewed entries at the all–others rate if there is no rate for the intermediate company(ies) involved in the transaction. Id. rmajette on PROD1PC64 with NOTICES Cash Deposit Rates The following antidumping duty deposits will be required on all shipments of certain PSF from Korea entered, or withdrawn from warehouse, for consumption, effective on or after the publication date of the final results of this administrative review, as provided by section 751(a)(1) of the Act: (1) the cash deposit rates for the reviewed companies will be the rate listed above (except no cash deposit will be required if a company’s weighted– average margin is de minimis, i.e., less than 0.5 percent); (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company–specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be the rate established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, a prior review, or the investigation, the cash deposit rate will be 7.91 percent, the all–others rate established in Certain Polyester Staple Fiber from the Republic of Korea: Notice of Amended Final Determination and Amended Order Pursuant to Final Court Decision, 68 FR 74552 (December 24, 2003). These cash deposit requirements shall remain in effect until publication of the final results of the next administrative review. Notification to Importers This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary’s presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties. VerDate Aug<31>2005 15:35 Dec 07, 2007 Jkt 214001 Notification Regarding Administrative Protective Orders This notice also serves as a reminder to parties subject to administrative protective orders (‘‘APOs’’) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation. We are issuing and publishing these results and this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act. Dated: December 3, 2007. Stephen J. Claeys, Acting Assistant Secretary for Import Administration. Appendix I List of Comments in the Decision Memorandum Comment 1: Coding of Specialty Fibers Comment 2: Home Market Sales Database Comment 3: Classification of U.S. Sales as Constructed Export Price Sales Comment 4: MTA and QTA as Identical Products Comment 5: Valuing PTA and QTA at the Transfer Price Paid by Huvis Comment 6: Major Input Test for Samnam’s Purchases of Paraxylene Comment 7: SK Chemicals’ SG&A and Financial Expenses Ratios Comment 8: Huvis’ G&A Expenses Comment 9: Zeroing Dumping Margins Comment 10: The Rate Applicable to Dongwoo’s Sales [FR Doc. E7–23894 Filed 12–7–07; 8:45 am] BILLING CODE 3510–DS–S DEPARTMENT OF COMMERCE International Trade Administration [A–533–824] Certain Polyethylene Terephthalate Film, Sheet and Strip from India: Extension of Time Limit for Final Results of Antidumping Duty Administrative Review Import Administration, International Trade Administration, Department of Commerce. EFFECTIVE DATE: December 10, 2007. AGENCY: PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 FOR FURTHER INFORMATION CONTACT: Martha Douthit, AD/CVD Operations, Office 6, Import Administration, International Trade Administration, Department of Commerce, Room 7866, 14th Street and Constitution Avenue, NW, Washington DC 20230; telephone: (202) 482–5050. SUPPLEMENTARY INFORMATION: Background On August 7, 2007, the Department of Commerce (the Department) published the preliminary results of the administrative review of the antidumping duty order on certain polyethlene terephthalate sheet, and strip from India for the period July 1, 2005 through June 30, 2006. See Certain Polyethylene Terephthalate Film, Sheet and Strip From India: Preliminary Results of Antidumping Duty Administrative Review, 72 FR 44086 (August 7, 2007). This review covers one producer of the subject merchandise to the United States. Extension of Time Limit for Final Results Section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act) requires the Department to issue the final results in an administrative review within 120 days of the publication date of the preliminary results. However, if it is not practicable to complete the review within this time period, section 751(a)(3)(A) of the Act allows the Department to extend the time limit for the final results to a maximum of 180 days. The Department has determined that completion of the final results of this review within the original time period is not practicable. Specifically, the Department requires additional time to analyze whether an adjustment for any countervailing duties imposed on the subject merchandise to offset an export subsidy is warranted. Thus, in accordance with section 751(a)(3)(A) of the Act, the Department is extending the time period for issuing the final results of review by an additional 60 days, from December 5, 2007 until no later than February 4, 2008. This notice is published pursuant to sections 751(a)(3)(A) and 777(I)(1) of the Act. Dated: December 4, 2007. Stephen J. Claeys, Deputy Assistant Secretary for Import Administration. [FR Doc. E7–23890 Filed 12–7–07; 8:45 am] BILLING CODE 3510–DS–S E:\FR\FM\10DEN1.SGM 10DEN1

Agencies

[Federal Register Volume 72, Number 236 (Monday, December 10, 2007)]
[Notices]
[Pages 69663-69666]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-23894]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-580-839]


Certain Polyester Staple Fiber from Korea: Final Results of the 
2005-2006 Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On June 6, 2007, the Department of Commerce published the 
preliminary results of the sixth administrative review of the 
antidumping duty order on certain polyester staple fiber from the 
Republic of Korea. The review covers the shipments of subject 
merchandise to the United States by Huvis Corporation and Dongwoo 
Industry Co., Ltd. Based on our analysis of the comments received from 
interested parties and an examination of our calculations, we have made 
certain changes for the final results. The final weighted-average 
dumping margins are listed below in the ``Final Results of the Review'' 
section of this notice.

EFFECTIVE DATE: December 10, 2007.

FOR FURTHER INFORMATION CONTACT: Andrew McAllister or Brandon 
Farlander, Office 1, AD/CVD Operations, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW, Washington DC 20230; telephone: 
(202) 482-1174 and (202) 482-0182, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On June 6, 2007, the Department of Commerce (``the Department'') 
published Certain Polyester Staple Fiber from Korea: Preliminary 
Results of Antidumping Duty Administrative Review and Preliminary 
Intent to Rescind, 72 FR 31279 (June 6, 2007) (``Preliminary Results'') 
in the Federal Register.
    On July 12, 2007, the Department issued a memorandum releasing 
shipment data for Dongwoo Industry Co., Ltd. (``Dongwoo''). On July 17, 
2007, the Department issued a memorandum releasing these shipment data 
to legal counsel for Dongwoo.
    We invited parties to comment on the preliminary results. On July 
27, 2007, Wellman, Inc.; Invista, S.a.r.L.; and DAK Americas, LLC 
(collectively, ``the petitioners''), Huvis Corporation (``Huvis''), and 
Consolidated Fibers Inc. (``Consolidated Fibers'') (an importer of 
subject merchandise sales by Dongwoo)/Dongwoo, filed case briefs. On 
August 3, 2007, the Department rejected Consolidated Fibers/Dongwoo's 
case brief because the brief contained untimely filed new factual 
information. Also, on August 3, 2007, the Department requested comments 
from interested parties on the discrepancies between information 
provided in Dongwoo's August 10, 2006, questionnaire response and 
information contained in the Department's July 12, 2007, memorandum. On 
August 7, 2007, we received a revised case brief from Consolidated 
Fibers/Dongwoo. We received no comments from interested parties 
regarding Dongwoo's discrepancies. On August 24, 2007, the petitioners 
and Huvis filed rebuttal briefs.
    On September 28, 2007, the Department published in the Federal 
Register an extension of the time limit for the completion of the final 
results of this review until no later than December 3, 2007, in 
accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as 
amended (``the Act''), and 19 CFR 351.213(h)(2). See Certain Polyester 
Staple Fiber from Korea: Notice of Extension of Time Limit for the 
Final Results of the 2005-2006 Antidumping Duty Administrative Review, 
72 FR 1703 (September 28, 2007).

Scope of the Order

    For the purposes of this order, the product covered is certain 
polyester staple fiber (``PSF''). PSF is defined as

[[Page 69664]]

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 merchandise subject to this 
order 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. Merchandise 
of less than 3.3 decitex (less than 3 denier) currently classifiable 
under the Harmonized Tariff Schedule of the United States (``HTSUS'') 
at subheading 5503.20.00.25 is specifically excluded from this order. 
Also specifically excluded from this order are polyester staple fibers 
of 10 to 18 denier that are cut to lengths of 6 to 8 inches (fibers 
used in the manufacture of carpeting). In addition, low-melt PSF is 
excluded from this order. Low-melt PSF is defined as a bi-component 
fiber with an outer sheath that melts at a significantly lower 
temperature than its inner core.
    The merchandise subject to this order is currently classifiable in 
the HTSUS at subheadings 5503.20.00.45 and 5503.20.00.65. Although the 
HTSUS subheadings are provided for convenience and customs purposes, 
the written description of the merchandise under the order is 
dispositive.

Period of Review

    The period of review (``POR'') is May 1, 2005, through April 30, 
2006.

Application of Adverse Facts Available

    Section 776(a) of the Act provides that the Department will apply 
``facts otherwise available'' if, inter alia, necessary information is 
not available on the record or an interested party: 1) withholds 
information that has been requested by the Department; 2) fails to 
provide such information within the deadlines established, or in the 
form or manner requested by the Department, subject to subsections 
(c)(1) and (e) of section 782 of the Act; 3) significantly impedes a 
proceeding; or 4) provides such information, but the information cannot 
be verified.
    In its August 10, 2006, questionnaire response, Dongwoo reported 
that it made no sales or shipments of subject merchandise to the United 
States during the POR. However, on July 12, 2007, we placed a 
memorandum on the record confirming through U.S. Customs and Border 
Protection data that Dongwoo made shipments to the United States during 
the POR.
    Although the deadline to submit new factual information had passed, 
on August 3, 2007, we sought comments on the discrepancies between 
information provided in Dongwoo's August 10, 2006, questionnaire 
response and the Department's July 12, 2007, memorandum. Dongwoo did 
not provide any comments.
    By asserting in its original questionnaire response that it had no 
sales or shipments to the United States, Dongwoo failed to provide the 
requested information. In doing so, Dongwoo withheld requested 
information and significantly impeded the proceeding. Therefore, 
pursuant to sections 776(a)(2)(A) and (C) of the Act, the Department 
finds that the use of total facts available is appropriate.
    According to section 776(b) of the Act, if the Department finds 
that an interested party fails to cooperate by not acting to the best 
of its ability to comply with requests for information, the Department 
may use an inference that is adverse to the interests of that party in 
selecting from the facts otherwise available. See also Notice of Final 
Results of Antidumping Duty Administrative Review: Stainless Steel Bar 
from India, 70 FR 54023, 54025-26 (September 13, 2005); and Notice of 
Final Determination of Sales at Less Than Fair Value and Final Negative 
Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from 
Brazil, 67 FR 55792, 55794-96 (August 30, 2002). It is the Department's 
practice to apply adverse inferences to ensure that the party does not 
obtain a more favorable result by failing to cooperate than if it had 
cooperated fully. See, e.g., Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, H.R. Rep. No. 103-316, 
Vol. 1, at 870 (1994) (SAA), reprinted in 1994 U.S.C.C.A.N. 4040, 4198-
99. Furthermore, ``affirmative evidence of bad faith on the part of a 
respondent is not required before the Department may make an adverse 
inference.'' See Antidumping Duties; Countervailing Duties; Final Rule, 
62 FR 27296, 27340 (May 19, 1997); see also Nippon Steel Corp. v. 
United States, 337 F.3d 1373, 1382-83 (Fed. Cir. 2003) (``Nippon'').
    We find that Dongwoo did not act to the best of its abilities in 
this proceeding, within the meaning of section 776(b) of the Act, 
because it withheld information specifically requested by the 
Department. Therefore, an adverse inference is warranted in selecting 
from the facts otherwise available with respect to this company. See 
Nippon, 337 F.3d at 1382-83.
    Section 776(b) of the Act provides that the Department may use as 
AFA, information derived from: 1) the petition; 2) the final 
determination in the investigation; 3) any previous review; or 4) any 
other information placed on the record. The Department's practice, when 
selecting an AFA rate from among the possible sources of information, 
has been to ensure that the margin is sufficiently adverse ``as to 
effectuate the statutory purposes of the adverse facts available rule 
to induce respondents to provide the Department with complete and 
accurate information in a timely manner.'' See, e.g., Certain Steel 
Concrete Reinforcing Bars from Turkey; Final Results and Rescission of 
Antidumping Duty Administrative Review in Part, 71 FR 65082, 65084 
(November 7, 2006). In this case, the Department considered: 1) the 
rates alleged in the petition, which ranged from 48.14 to 84.03 
percent; 2) the rates calculated in the final determination of the 
investigation, which ranged from 0.12 to 7.91 percent (see Notice of 
Amended Final Determination of Sales at Less Than Fair Value: Certain 
Polyester Staple Fiber from the Republic of Korea, and Antidumping Duty 
Orders: Certain Polyester Staple Fiber from the Republic of Korea and 
Taiwan, 65 FR 33807, 33808 (May 25, 2000); see also Certain Polyester 
Staple Fiber from the Republic of Korea: Notice of Amended Final 
Determination and Amended Order Pursuant to Final Court Decision, 70 FR 
74552, 74553 (December 24, 2003)); and 3) the rate calculated in the 
fourth administrative review, i.e., 5.87 percent (see Notice of Final 
Results of Antidumping Duty Administrative Review: Certain Polyester 
Staple Fiber from the Republic of Korea, 70 FR 73435, 73436 (December 
12, 2005)).
    In order to ensure that the margin is sufficiently adverse so as to 
induce cooperation, we have assigned a rate of 48.14 percent, which is 
the lowest rate alleged in the petition, as modified in the 
Department's initiation notice. See Initiation of Antidumping Duty 
Investigations: Certain Polyester Staple Fiber From the Republic of 
Korea and Taiwan, 69 FR 23053, 23055 (April 29, 1999) (``LTFV 
Initiation''). The Department finds that this rate is sufficiently high 
to effectuate the purpose of the facts available rule (i.e., we find 
that this rate is high enough to encourage participation in future 
segments of this proceeding in accordance with section 776(b) of the 
Act).
    Information from the petition and prior segments of the proceeding 
constitutes secondary information and section 776(c) of the Act 
provides that the Department shall, to the extent

[[Page 69665]]

practicable, corroborate that secondary information from independent 
sources reasonably at its disposal. The Department's regulations 
provide that ``corroborate'' means that the Department will satisfy 
itself that the secondary information to be used has probative value. 
See 19 CFR 351.308(d); see also SAA at 870. To the extent practicable, 
the Department will examine the reliability and relevance of the 
information to be used.
    To corroborate the petition margin, we compared it to the 
transaction-specific rates calculated for the participating respondent 
in this review. We find that it is reliable and relevant because the 
lowest transaction-specific petition rate is comparable to the range of 
individual transaction margins calculated for the participating 
respondent. See Certain Frozen Warmwater Shrimp from India: Preliminary 
Results and Partial Rescission of Antidumping Duty Administrative 
Review, 72 FR 10658, 10663 (March 7, 2007) (unchanged in the final 
results).
    Further, the Department will consider information reasonably at its 
disposal as to whether there are circumstances that would render a 
margin inappropriate. Where circumstances indicate that the selected 
margin is not appropriate as AFA, the Department may disregard the 
margin and determine an appropriate margin. See, e.g., Fresh Cut 
Flowers from Mexico; Final Results of Antidumping Duty Administrative 
Review, 61 FR 6812, 6814 (February 22, 1996) (where the Department 
disregarded the highest calculated margin as AFA because the margin was 
based on a company's uncharacteristic business expense resulting in an 
unusually high margin). In the instant case, we examined whether any 
information on the record would discredit the selected rate as 
reasonable facts available. Specifically, we reviewed the quantities 
involved in the transaction-specific rates used for corroboration 
purposes and we note that the quantities of these transactions are 
quantities typical of the participating respondent's normal 
transactions. See Memorandum from Team to the File, ``Corroboration of 
Data Contained in the Petition for Assigning Facts Available Rates in 
the 2005-2006 Antidumping Duty Administrative Review of Certain 
Polyester Staple Fiber from Korea,'' dated December 3, 2007 
(``Corroboration Memo''). Therefore, we have determined that the 48.14 
percent margin is appropriate as AFA and are assigning it to Dongwoo.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs by parties to 
this review are addressed in the December 3, 2007, Issues and Decision 
Memorandum for the Sixth Antidumping Duty Administrative Review of 
Certain Polyester Staple Fiber from the Republic of Korea (``Decision 
Memorandum''), which is hereby adopted by this notice. Attached to this 
notice as an appendix is a list of the issues which 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 review and the 
corresponding recommendations in this public memorandum, which is on 
file in the Department's Central Records Unit, Room B-099 of the main 
Department building (``CRU''). In addition, a complete version of the 
Decision Memorandum can be accessed directly on the Web at http://ia.ita.doc.gov/fxsp0;frn/index.html. The paper copy and electronic 
version of the Decision Memorandum are identical in content.

Fair Value Comparisons

    To determine whether sales of PSF from Korea to the United States 
were made at less than normal value, we compared export price (``EP'') 
to the NV. We calculated EP, NV, constructed value (``CV''), and the 
cost of production (``COP''), based on the same methodologies used in 
the Preliminary Results, with the following exceptions:
    To establish a market value for the input QTA pursuant to the major 
input rule, the Department applied a proxy market price calculated from 
the affiliated supplier's financial statements in the preliminary 
results. Based upon a further review of the record of this proceeding, 
we have determined that MTA can be substituted for QTA in similar 
quantities to produce the same amount of finished PSF. Therefore, for 
the final results, we have used the market price of MTA reported by 
Huvis as a proxy for the market price of QTA. Based on this, we made an 
adjustment to the value of QTA to reflect the difference between the 
transfer price of QTA and the higher of the COP of QTA or the market 
price of MTA. See Decision Memorandum at Comments 4 and 5; see also 
Memorandum from Team to File, ``2005/2006 Antidumping Duty 
Administrative Review of Certain Polyester Staple Fiber from Korea - 
Final Results Calculation Memorandum for Huvis Corporation,'' dated 
December 3, 2007 (``Huvis Final Calculation Memorandum'').
    In the preliminary results, we allowed Huvis to exclude impairment 
losses related to property, plant, and equipment from SK Chemicals' 
SG&A expenses. For the final results, we determine that these 
impairment losses are ordinary losses and represent real economic 
losses. Therefore, we have included these impairment losses in SK 
Chemicals' SG&A expenses because these losses are part of the general 
operations of SK Chemicals. See Decision Memorandum at Comment 7; see 
also Huvis Final Calculation Memorandum.

Final Results of the Review

    We find that the following percentage margins exist for the period 
May 1, 2005, through April 30, 2006:

------------------------------------------------------------------------
                                                       Weighted-average
                Exporter/manufacturer                  margin percentage
------------------------------------------------------------------------
Dongwoo Industry Co., Ltd...........................               48.14
Huvis Corporation...................................                2.51
------------------------------------------------------------------------

Assessment Rates

    The Department has treated Huvis as the importer of record for 
certain POR shipments. Pursuant to 19 CFR 351.212(b)(1), for all sales 
where Huvis is the importer of record, Huvis submitted the reported 
entered value of the U.S. sales and we calculated importer-specific 
assessment rates based on the ratio of the total amount of antidumping 
duties calculated for the examined sales to the total entered value of 
those sales.
    Regarding sales where Huvis was not the importer of record, we note 
that Huvis did not report the entered value for the U.S. sales in 
question. Accordingly, we calculated importer-specific assessment rates 
for the merchandise in question by aggregating the dumping margins 
calculated for all U.S. sales to each importer and dividing this amount 
by the total quantity of those sales. To determine whether the duty 
assessment rates were de minimis, in accordance with the requirement 
set forth in 19 CFR 351.106(c)(2), we calculated importer-specific ad 
valorem ratios based on the estimated entered value.
    Pursuant to 19 CFR 351.106(c)(2), we will instruct CBP to liquidate 
without regard to antidumping duties any entries for which the 
assessment rate is de minimis (i.e., less than 0.50 percent). The 
Department will issue appropriate assessment instructions to CBP 15 
days after publication of these final results of review.
    The Department clarified its ``automatic assessment'' regulation on 
May 6, 2003. See Antidumping and Countervailing Duty Proceedings:

[[Page 69666]]

Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003). This 
clarification will apply to entries of subject merchandise during the 
POR produced by companies included in these final results for which the 
reviewed companies did not know their merchandise was destined for the 
United States. In such instances, we will instruct CBP to liquidate 
unreviewed entries at the all-others rate if there is no rate for the 
intermediate company(ies) involved in the transaction. Id.

Cash Deposit Rates

    The following antidumping duty deposits will be required on all 
shipments of certain PSF from Korea entered, or withdrawn from 
warehouse, for consumption, effective on or after the publication date 
of the final results of this administrative review, as provided by 
section 751(a)(1) of the Act: (1) the cash deposit rates for the 
reviewed companies will be the rate listed above (except no cash 
deposit will be required if a company's weighted-average margin is de 
minimis, i.e., less than 0.5 percent); (2) for previously reviewed or 
investigated companies not listed above, the cash deposit rate will 
continue to be the company-specific rate published for the most recent 
period; (3) if the exporter is not a firm covered in this review, a 
prior review, or the original investigation, but the manufacturer is, 
the cash deposit rate will be the rate established for the most recent 
period for the manufacturer of the merchandise; and (4) if neither the 
exporter nor the manufacturer is a firm covered in this review, a prior 
review, or the investigation, the cash deposit rate will be 7.91 
percent, the all-others rate established in Certain Polyester Staple 
Fiber from the Republic of Korea: Notice of Amended Final Determination 
and Amended Order Pursuant to Final Court Decision, 68 FR 74552 
(December 24, 2003). These cash deposit requirements shall remain in 
effect until publication of the final results of the next 
administrative review.

Notification to Importers

    This notice serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402(f)(2) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of doubled antidumping duties.

Notification Regarding Administrative Protective Orders

    This notice also serves as a reminder to parties subject to 
administrative protective orders (``APOs'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305(a)(3), which 
continues to govern business proprietary information in this segment of 
the proceeding. Timely written notification of the return/destruction 
of APO materials or conversion to judicial protective order is hereby 
requested. Failure to comply with the regulations and terms of an APO 
is a sanctionable violation.
    We are issuing and publishing these results and this notice in 
accordance with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: December 3, 2007.
Stephen J. Claeys,
Acting Assistant Secretary for Import Administration.

Appendix I

List of Comments in the Decision Memorandum

Comment 1: Coding of Specialty Fibers
Comment 2: Home Market Sales Database
Comment 3: Classification of U.S. Sales as Constructed Export Price 
Sales
Comment 4: MTA and QTA as Identical Products
Comment 5: Valuing PTA and QTA at the Transfer Price Paid by Huvis
Comment 6: Major Input Test for Samnam's Purchases of Paraxylene
Comment 7: SK Chemicals' SG&A and Financial Expenses Ratios
Comment 8: Huvis' G&A Expenses
Comment 9: Zeroing Dumping Margins
Comment 10: The Rate Applicable to Dongwoo's Sales
[FR Doc. E7-23894 Filed 12-7-07; 8:45 am]
BILLING CODE 3510-DS-S