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

Agencies

• DEPARTMENT OF COMMERCE
• International Trade Administration

[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 https://ia.ita.doc.gov/fxsp0;frn/. 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]
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