Certain Tissue Paper Products From the People's Republic of China: Affirmative Final Determination of Circumvention of the Antidumping Duty Order, 47551-47555 [2011-19921]
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Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Notices
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the tissue paper products produced
using Chinese-origin jumbo rolls/sheets.
However, upon further review of the
sales documentation on the record, we
found that while MFVN physically
ships the tissue paper it produces to the
United States, MFVN’s parent company
in Hong Kong, Max Fortune Industrial
Limited (MFHK), is the entity that sells
it to the U.S. customer and, thus, is the
‘‘exporter’’ for AD purposes. The record
evidence establishes that MFHK, among
other things, negotiates the terms of the
sale with and issues the commercial
invoice to the U.S. customer for exports
of tissue paper produced by MFVN.4
This fact pattern is not inconsistent with
the Department’s AFA determination in
the Preliminary Results that MFVN
made shipments to the United States of
tissue paper products produced from
Chinese-origin jumbo rolls/sheets, but
instead reflects the Department’s
determination upon further
consideration of record evidence that
MFVN is not the exporter of the subject
merchandise.
In administrative reviews involving
non-market-economy countries, the
Department calculates cash deposit rates
only for exporters, not producers. See,
e.g., Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam: Notice of
Preliminary Results and Partial
Rescission of the Third Antidumping
Administrative Review, 72 FR 53527,
53530 (September 19, 2007) (rescinding
review for company that was a
producer, but not an exporter, of subject
merchandise to the United States);
unchanged in Certain Frozen Fish Fillets
From the Socialist Republic of Vietnam:
Final Results of Antidumping Duty
Administrative Review and Partial
Rescission, 73 FR 15479 (March 24,
2008). Accordingly, because MFVN was
the producer, rather than the exporter,
of the merchandise under review and,
thus, had no sales of the subject
merchandise to the United States during
the POR, the Department is rescinding
this administrative review with respect
to MFVN.
In this case, the petitioner withdrew
its request for review of the exporter
MFHK, and we subsequently rescinded
the review with respect to MFHK. See
Certain Tissue Paper Products From the
People’s Republic of China: Notice of
Partial Rescission and Extension of
4 See Memorandum from to the File from Case
Analysts entitled ‘‘Verification of the Questionnaire
Response of Max Fortune (Vietnam) Paper Products
Co., Ltd. and Its Affiliates in the Anticircumvention Inquiry and 2009–2010
Antidumping Duty Administrative Review of
Certain Tissue Paper Products from the People’s
Republic of China,’’ dated March 31, 2011, at
exhibits 6A through 6F.
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47551
Time Limit for Preliminary Results of
2009–2010 Administrative Review, 75
FR 73040 (November 29, 2010).
Therefore, given that MFHK is no longer
subject to this review and there are no
sales of subject merchandise by MFVN
which entered the United States during
the POR, we are rescinding this
administrative review of MFVN in
accordance with 19 CFR 351.213(d)(3).
Dated: August 1, 2011.
Christian Marsh,
Deputy Assistant Secretary for Antidumping
and Countervailing Duty Operations.
Assessment
[A–570–894]
The Department will instruct U.S.
Customs and Border Protection (CBP) to
assess antidumping duties on all
appropriate entries, including those
from the PRC-wide entity. Antidumping
duties shall be assessed at rates equal to
the cash deposit of estimated
antidumping duties required at the time
of entry, or withdrawal from warehouse,
for consumption, in accordance with 19
CFR 351.212(c)(1)(i). The Department
intends to issue appropriate assessment
instructions directly to CBP 15 days
after the date of publication of this
notice in the Federal Register.
Certain Tissue Paper Products From
the People’s Republic of China:
Affirmative Final Determination of
Circumvention of the Antidumping
Duty Order
Notification to Importers
This notice serves as a 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 double antidumping duties.
Notification Regarding Administrative
Protective Orders
This notice also serves as a reminder
to parties subject to administrative
protective orders (APO) 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 or destruction
of APO materials or conversion to
judicial protective order is hereby
requested. Failure to comply with the
regulations and the terms of an APO is
a sanctionable violation.
This notice is published in
accordance with section 777(i) of the
Tariff Act of 1930, as amended, and 19
CFR 351.213(d)(4).
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[FR Doc. 2011–19923 Filed 8–4–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
Import Administration,
International Trade Administration,
Department of Commerce.
AGENCY:
Final Determination
We determine that certain tissue
paper products (tissue paper) produced
by Max Fortune (Vietnam) Paper
Products Company, Limited (MFVN) 1
and exported to the United States are
made from jumbo rolls and/or cut sheets
of tissue paper produced in the People’s
Republic of China (PRC), and are
circumventing the antidumping duty
order on tissue paper from the PRC, as
provided in section 781(b) of the Tariff
Act of 1930, as amended (the Act).
DATES: Effective Date: August 5, 2011.
FOR FURTHER INFORMATION CONTACT:
Brian Smith or Gemal Brangman, AD/
CVD Operations, Office 2, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW., Washington, DC 20230;
telephone: (202) 482–1766 or (202) 482–
3773, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 6, 2011, the Department of
Commerce (the Department) published
in the Federal Register its affirmative
preliminary determination that tissue
paper produced by MFVN in Vietnam
using Chinese-origin jumbo rolls and/or
1 MFVN is a company located in Vietnam and is
a wholly-owned subsidiary of Max Fortune
Industrial Co., Ltd. (MFHK) located in Hong Kong.
MFHK was the exporter of the tissue paper
produced and shipped by MFVN to the United
States during the analysis period of this inquiry.
See Memorandum to the File from Case Analysts
entitled ‘‘Verification of the Questionnaire
Response of Max Fortune (Vietnam) Paper Products
Co., Ltd. and Its Affiliates in the Anticircumvention Inquiry and 2009–2010
Antidumping Duty Administrative Review of
Certain Tissue Paper Products from the People’s
Republic of China,’’ dated March 31, 2011 (MFVN
verification report), at exhibits 6A through 6F.
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Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Notices
cut sheets and exported to the United
States is circumventing the antidumping
duty order on certain tissue paper
products from the PRC (PRC Tissue
Paper Order),2 as provided in section
781(b) of the Act. See Certain Tissue
Paper Products From the People’s
Republic of China: Affirmative
Preliminary Determination of
Circumvention of the Antidumping Duty
Order, 76 FR 19043 (April 6, 2011)
(Preliminary Determination).
On May 2, 2011, the International
Trade Commission (ITC) notified the
Department that consultations pursuant
to section 781(e)(2) of the Act were not
necessary.3
On May 20, 2011, MFVN submitted
its case brief. The petitioner 4 did not
submit a case brief. On May 27, 2011,
the petitioner submitted its rebuttal
brief.
On May 31, 2011, MFVN withdrew its
May 6, 2011, request for a hearing. No
other party in this review requested a
hearing.
On July 8 and 13, 2011, the
Department held meetings with
counsels for MFVN and the petitioner to
discuss the issues raised in MFVN’s
case brief.5
On July 14, 2011, Michaels Stores,
Inc. (Michaels) filed an entry of
appearance and subsequently requested,
on July 15, 2011, a postponement of the
final determination in order to submit
information regarding its imports of
tissue paper from Vietnam. On July 20,
2011, the Department informed
Michaels that it was unable to grant its
request because the deadlines for
submitting new factual information and
case/rebuttal briefs in this inquiry had
passed.
On July 22, 2011, Michaels submitted
another letter which the Department
rejected on July 26, 2011, pursuant to 19
CFR 351.302(d), because it contained
unsolicited, untimely new argument.
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Scope of the Antidumping Duty Order
The tissue paper products subject to
this order are cut-to-length sheets of
tissue paper having a basis weight not
2 See Notice of Amended Final Determination of
Sales at Less than Fair Value and Antidumping
Duty Order: Certain Tissue Paper Products from the
People’s Republic of China, 70 FR 16223 (March 30,
2005) (PRC Tissue Paper Order).
3 See Letter from James R. Holbein, Acting
Secretary to the Commission, to Ronald K.
Lorentzen, Deputy Assistant Secretary for Import
Administration, dated May 2, 2011.
4 The petitioner is Seaman Paper Company of
Massachusetts, Inc.
5 See the Department’s memoranda to the file
entitled, ‘‘Ex Parte Meeting with Counsel for Max
Fortune (Vietnam) Paper Products Company,
Limited,’’ dated July 11, 2011, and ‘‘Ex Parte
Meeting with the Petitioner’s Counsel,’’ dated July
14, 2011.
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exceeding 29 grams per square meter.
Tissue paper products subject to this
order may or may not be bleached, dyecolored, surface-colored, glazed, surface
decorated or printed, sequined,
crinkled, embossed, and/or die cut. The
tissue paper subject to this order is in
the form of cut-to-length sheets of tissue
paper with a width equal to or greater
than one-half (0.5) inch. Subject tissue
paper may be flat or folded, and may be
packaged by banding or wrapping with
paper or film, by placing in plastic or
film bags, and/or by placing in boxes for
distribution and use by the ultimate
consumer. Packages of tissue paper
subject to this order may consist solely
of tissue paper of one color and/or style,
or may contain multiple colors and/or
styles.
The merchandise subject to this order
does not have specific classification
numbers assigned to them under the
Harmonized Tariff Schedule of the
United States (HTSUS). Subject
merchandise may be under one or more
of several different subheadings,
including: 4802.30; 4802.54; 4802.61;
4802.62; 4802.69; 4804.31.1000;
4804.31.2000; 4804.31.4020;
4804.31.4040; 4804.31.6000; 4804.39;
4805.91.1090; 4805.91.5000;
4805.91.7000; 4806.40; 4808.30;
4808.90; 4811.90; 4823.90; 4820.50.00;
4802.90.00; 4805.91.90; 9505.90.40. The
tariff classifications are provided for
convenience and customs purposes;
however, the written description of the
scope of this order is dispositive.6
Excluded from the scope of this order
are the following tissue paper products:
(1) Tissue paper products that are
coated in wax, paraffin, or polymers, of
a kind used in floral and food service
applications; (2) tissue paper products
that have been perforated, embossed, or
die-cut to the shape of a toilet seat, i.e.,
disposable sanitary covers for toilet
seats; (3) toilet or facial tissue stock,
towel or napkin stock, paper of a kind
used for household or sanitary
purposes, cellulose wadding, and webs
of cellulose fibers (HTSUS
4803.00.20.00 and 4803.00.40.00).
Scope of the Circumvention Inquiry
The products covered by this inquiry
are tissue paper products, as described
above in the ‘‘Scope of the Antidumping
6 On January 30, 2007, at the direction of U.S.
Customs and Border Protection (CBP), the
Department added the following HTSUS
classifications to the AD/CVD module for tissue
paper: 4802.54.3100, 4802.54.6100, and
4823.90.6700. Also on July 14, 2011, at the
direction of CBP, the Department added the
following HTSUS classification to the AD/CVD
module for tissue paper: 4811.90.9080. However,
we note that the six-digit classifications for these
numbers were already listed in the scope.
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Duty Order’’ section, which are
produced in Vietnam by MFVN from
Chinese-origin jumbo rolls and/or cut
sheets of tissue paper, and exported to
the United States.
Statutory Provisions Regarding
Circumvention
Section 781(b) of the Act provides
that the Department may find
circumvention of an antidumping duty
order when merchandise of the same
class or kind subject to the order is
completed or assembled in a foreign
country other than the country to which
the order applies. In conducting anticircumvention inquiries under section
781(b)(1) of the Act, the Department
analyzes the following criteria: (A)
Merchandise imported into the United
States is of the same class or kind as any
merchandise produced in a foreign
country that is subject to an
antidumping duty order; (B) before
importation into the United States, such
imported merchandise is completed or
assembled in another foreign country
from merchandise which is subject to
the order or produced in the foreign
country that is subject to the order; (C)
the process of assembly or completion
in the foreign country referred to in (B)
is minor or insignificant; (D) the value
of the merchandise produced in the
foreign country to which the
antidumping duty order applies is a
significant portion of the total value of
the merchandise exported to the United
States; and (E) the administering
authority determines that action is
appropriate to prevent evasion of such
order.
Section 781(b)(2) of the Act provides
the criteria for determining whether the
process of assembly or completion is
minor or insignificant. These criteria
are: (a) The level of investment in the
foreign country; (b) the level of research
and development in the foreign country;
(c) the nature of the production process
in the foreign country; (d) the extent of
the production facilities in the foreign
country; and (e) whether the value of
the processing performed in the foreign
country represents a small proportion of
the value of the merchandise imported
into the United States.
The Statement of Administrative
Action (SAA) accompanying the
Uruguay Round Agreements Act, H.
Doc. No. 103–316, at 893 (1994),
provides some guidance with respect to
these criteria. It explains that no single
factor listed in section 781(b)(2) of the
Act will be controlling. Accordingly, it
is the Department’s practice to evaluate
each of the factors as they exist in the
foreign country depending on the
particular facts present in the
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circumvention inquiry. Therefore, the
importance of any one of the factors
listed under section 781(b)(2) of the Act
can vary from case to case depending on
the particular circumstances unique to
each circumvention inquiry.
Section 781(b)(3) of the Act further
provides that, in determining whether to
include merchandise assembled or
completed in a foreign country in an
antidumping duty order, the
Department shall consider: (A) The
pattern of trade, including sourcing
patterns; (B) whether the manufacturer
or exporter of the merchandise
described in accordance with section
781(b)(1)(B) of the Act is affiliated with
the person who uses the merchandise
described in accordance with section
781(b)(1)(B) to assemble or complete in
the foreign country the merchandise
that is subsequently imported into the
United States; and (C) whether imports
into the foreign country of the
merchandise described in accordance
with section 781(b)(1)(B) have increased
after the initiation of the investigation
which resulted in the issuance of such
order.
Summary of Analysis of Statutory
Provisions
We considered all of the comments
submitted by the interested parties and
find, pursuant to section 781(b) of the
Act, that exports to the United States of
tissue paper produced by MFVN using
Chinese-origin jumbo rolls and/or cut
sheets are circumventing the PRC Tissue
Paper Order.
As we explained in the Preliminary
Determination, based on the list of
products MFVN provided in its
questionnaire response, we find that the
merchandise subject to this inquiry
meets the written description of the
products subject to the PRC Tissue
Paper Order and is, therefore, of the
same class or kind of merchandise as
that subject to the PRC Tissue Paper
Order, pursuant to section 781(b)(1)(A)
of the Act. In addressing the other
statutory criteria under sections
781(b)(1), (2), and (3) of the Act, we
relied on facts available where the
respondent failed to provide necessary,
verifiable information.
In its questionnaire response, MFVN
admitted that it was possible that it
manufactured some tissue paper in
Vietnam from PRC-origin jumbo rolls
before and during 2007. MFVN also
stated that its records before 2008 were
incomplete and unreliable.7 However,
MFVN asserted that it could
7 See
June 28, 2010, response to the Department’s
April 23, 2010, anti-circumvention questionnaire
(June 28 Response) at pages 3 and 12.
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conclusively demonstrate that as of
January 1, 2008, it did not convert any
PRC-origin jumbo rolls and/or cut sheets
of tissue paper in Vietnam into its own
tissue paper products.8 At verification,
MFVN failed to provide the requested
production and accounting records to
show when it ceased using Chineseorigin jumbo rolls and/or cut sheets in
its production of tissue paper products
for export to the United States.9
Accordingly, we conclude that MFVN
impeded the conduct of this anticircumvention inquiry by withholding
the necessary verifiable information
requested by the Department under
section 776(a)(2) of the Act.
Furthermore, we conclude that MFVN
failed to act to the best of its ability in
providing this necessary information
pursuant to section 776(b) of the Act.
MFVN was expected to maintain the
requested production and accounting
records in the normal course of business
and was required to maintain them
under Vietnamese accounting law,10 but
did not do so.11 Despite its claims,
MFVN could not conclusively
demonstrate that as of January 1, 2008,
it did not convert any Chinese-origin
jumbo rolls into tissue paper sold in the
United States.12 Moreover, although it
claimed that it could accurately account
for its inventory as of January 1, 2008,13
the Department discovered at
verification that MFVN withdrew
Chinese-origin jumbo rolls from
inventory in March 2010, but could not
account for the ultimate destination or
usage of those jumbo rolls in its books
and records.14 Therefore, the
Department determined, as adverse facts
available (AFA), that MFVN used
Chinese-origin jumbo rolls and/or cutsheets of tissue paper in its production
of tissue paper for export to the United
States from January 1, 2005, to
December 31, 2007, and that MFVN
continued to use such merchandise
from inventory during that period to
produce tissue paper for export on or
after January 1, 2008. See Comments 1
and 3 of the Issues and Decision
Memorandum (Decision Memo)
8 See
id.
MFVN verification report at pages 2 and 40.
10 For companies doing business in Vietnam,
Vietnamese regulations require companies such as
MFVN to retain such records for up to 10 years. See
Memorandum to the File dated March 31, 2011
which contains the following document, ‘‘Decree
No. 129/2004/ND–CP of May 31, 2004 Detailing and
Guiding the Implementation of a Number of
Articles of the Accounting Law, Applicable to
Business Activities,’’ issued by the Government of
the Socialist Republic of Vietnam on May 31, 2004.
11 See MFVN verification report at page 2.
12 See id. at pages 2 and 35–36.
13 See June 28 Response at pages 4 and 12.
14 See MFVN verification report at pages 2 and 40.
9 See
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47553
accompanying this notice for further
discussion of the application of AFA for
purposes of the final determination in
this inquiry.
In determining that MFVN used
Chinese-origin jumbo rolls and/or cutsheets of tissue paper in its production
of tissue paper for export to the United
States from January 1, 2005, to
December 31, 2007, as AFA, we relied
on information provided by the
petitioner in its February 19, 2010,
request for initiation of this anticircumvention inquiry (February 19
submission), which showed that during
the 2005–2007 period, MFVN imported
a significant quantity of jumbo rolls
from the PRC. MFVN did not provide
any information on the record that
contradicted the petitioner’s
information and, in fact, MFVN
admitted in its questionnaire responses
that ‘‘it is possible that MFVN might
have made {tissue paper} in Vietnam
from jumbo rolls from the PRC during
this time period.’’15 Further, Vietnamese
Customs data provided to Department
officials at verification covered entries
during 2008 and afterward, and does not
contradict the petitioner’s pre-2008 data
or MFVN’s admission.16 Moreover,
MFVN did not provide pre-2008
Vietnamese Customs data at verification
and there is no information on the
record that contradicts the petitioner’s
pre-2008 data. Therefore, we consider
this information to be corroborated to
the extent practicable pursuant to
section 776(c) of the Act.
Based on the above analysis, relying
on AFA, we determine, pursuant to
section 781(b)(1)(B) of the Act that
MFVN completed tissue paper in
Vietnam using jumbo rolls and/or cut
sheets produced in the PRC. With
respect to section 781(b)(1)(C) of the
Act, we determine that the process of
converting the jumbo rolls and/or cut
sheets of tissue paper into finished
tissue paper products in Vietnam is
minor or insignificant, after taking into
consideration all of the factors listed in
section 781(b)(2) of the Act. See
Comment 2 of the Decision Memo for
further discussion. With respect to
section 781(1)(D) of the Act, we
determine that the value of the jumbo
rolls and/or cut sheets of tissue paper
MFVN used in its production is a
significant portion of the value of the
merchandise exported to the United
States. See Comment 2 of the Decision
Memo for further discussion.
15 See
MFVN’s June 28 Response at pages 4 and
12.
16 See MFVN verification report at pages 3, 23–
24, and 32–33.
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We note that we relied on secondary
information in addressing section
781(b)(1)(C) of the Act. Specifically,
because MFVN did not provide the
Department with sufficient information
to reach a conclusion based solely on its
own data under this provision, we
relied, in part, on information contained
in the petitioner’s February 19
submission to conclude that the tissue
paper completion process in Vietnam is
minor or insignificant.17 MFVN did not
provide any information on the record
of this inquiry to contradict this
information, and there is no other
information on the record that
contradicts this information. Moreover,
the results of a prior circumvention
inquiry of the PRC Tissue Paper Order
corroborates the Department’s
conclusion as AFA that the processing
in Vietnam is minor or insignificant, as
the same conclusion was reached by the
Department in that prior inquiry which
also involved allegations of Chineseorigin jumbo rolls being converted to
cut-to-length tissue paper in Vietnam.
See Certain Tissue Paper Products from
the People’s Republic of China:
Affirmative Preliminary Determination
of Circumvention of the Antidumping
Duty Order and Extension of Final
Determination, 73 FR 21580, 21582–
21587 (April 22, 2008) (Quijiang Prelim)
(unchanged in Certain Tissue Paper
Products From the People’s Republic of
China: Affirmative Final Determination
of Circumvention of the Antidumping
Duty Order, 73 FR 57591 (October 3,
2008) (Quijiang Final)). Furthermore,
the Department is unaware of any
available independent sources it could
use to corroborate this information.
Accordingly, we consider the
petitioner’s information relied upon by
the Department as AFA to reach a
finding under section 781(b)(1)(C) of the
Act corroborated to the extent
practicable under section 776(c) of the
Act. See Comment 3 of the Decision
Memo for further discussion of the
Department’s corroboration of
secondary information used as AFA as
part of its analysis under section
781(b)(1)(C) of the Act.
Similarly, we relied on secondary
information in addressing section
781(b)(1)(D) of the Act. Because MFVN
did not provide the Department with
sufficient information to determine
whether the value of the jumbo rolls
and/or cut sheets is a significant portion
of the value of MFVN’s finished tissue
paper products exported to the United
States, we relied on the data in the
petitioner’s February 19 submission18 as
AFA, to make this determination.
MFVN did not provide any information
on the record of this inquiry to
contradict this information, and there is
no other information on the record to
contradict it. Additionally, as in the
case of our determination with respect
to the Vietnamese processing, pursuant
to section 776(c) of the Act, we
corroborated to the extent practicable
the petitioner’s data based on our
findings in the above-referenced prior
anti-circumvention inquiry of the PRC
Tissue Paper Order. See Quijiang
Prelim, 73 FR at 21582–21587
(unchanged in Quijiang Final).
Furthermore, the Department is
unaware of any available independent
sources it could use to corroborate this
information. Accordingly, we consider
the petitioner’s information relied upon
by the Department as AFA to reach a
finding under section 781(b)(1)(D) of the
Act corroborated to the extent
practicable under section 776(c) of the
Act. See Comment 3 of the Decision
Memo for further discussion.
As a result of the above analysis, we
affirm our preliminary determination
that action by the Department is
warranted in this case to prevent
evasion of the PRC Tissue Paper Order,
pursuant to section 781(b)(1)(E) of the
Act.
Furthermore, based on the additional
factors we must consider under section
781(b)(3) of the Act, we find that
MFVN’s pattern of trade, affiliations,
and level of importation of Chineseorigin tissue paper jumbo rolls/sheets
support an affirmative finding of
circumvention. See Comment 2 of the
Decision Memo for the Department’s
complete final analysis of the criteria
under section 781(b) of the Act.
Based on our overall analysis of the
statutory provisions regarding
circumvention via completion or
assembly in a foreign country, we
conclude, pursuant to section 781(b) of
the Act, that exports to the United States
of tissue paper products produced from
Chinese-origin jumbo rolls and/or cut
sheets which are further processed in
Vietnam by MFVN are circumventing
the PRC Tissue Paper Order.
All issues raised by the interested
parties to which we have responded are
listed in the Appendix to this notice and
addressed in the Decision Memo, which
is hereby adopted by this notice. Parties
can find a complete discussion of the
issues raised in this inquiry and the
corresponding recommendation in this
public memorandum, which is on file in
17 See the petitioner’s February 19 submission at
pages 34–35 and Exhibit 16.
18 See the petitioner’s February 19 submission at
pages 34–36.
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the Central Records Unit (CRU) of the
main Department of Commerce
building. In addition, a complete
version of the Decision Memo can be
accessed directly on the Internet at
https://ia.ita.doc.gov/. The paper copy
and electronic copy of the Decision
Memo are identical in content.
Continuation of Suspension of
Liquidation
In accordance with sections 735(c)
and 781(b) of the Act and 19 CFR
225(i)(3), we will direct CBP to suspend
liquidation and require cash deposits of
estimated duties, at the rate applicable
to the exporter, on all unliquidated
entries of tissue paper produced by
MFVN that were entered, or withdrawn
from warehouse, for consumption on or
after March 29, 2010, the date of
initiation of the circumvention
inquiry.19
Should the Department conduct an
administrative review in the future, and
determine in the context of that review
that MFVN has not produced for export
tissue paper using Chinese-origin jumbo
rolls and/or cut sheets, the Department
will consider initiating a changed
circumstances review pursuant to
section 751(b) of the Act to determine if
the continued suspension of all tissue
paper produced by MFVN is warranted.
Notice to Parties
This notice serves as the only
reminder to parties subject to the
administrative protective order (APO) of
their responsibility concerning the
return or destruction of proprietary
information disclosed under APO in
accordance with section 351.305 of the
Department’s regulations. Timely
written notification of the return or
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 final affirmative circumvention
determination is published in
accordance with section 781(b) of the
Act and 19 CFR 351.225.
19 In the Preliminary Determination, at 76 FR
19048, we stated that we would direct CBP to
suspend liquidation and to require a cash deposit
of estimated duties, at the PRC-wide rate of 112.64
percent, on all unliquidated entries of tissue paper
produced by MFVN ‘‘and/or exported by MFVN’’
that was entered, or withdrawn from warehouse, for
consumption on or after March 29, 2010, the date
of initiation of the circumvention inquiry. However,
in this inquiry, the Department is concerned only
with merchandise produced by MFVN, irrespective
of the exporter. Therefore, we have clarified our
instructions for purposes of this final
determination. See Comment 5 of the Decision
Memo for further discussion.
E:\FR\FM\05AUN1.SGM
05AUN1
Federal Register / Vol. 76, No. 151 / Friday, August 5, 2011 / Notices
Dated: August 1, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
Washington, DC 20230; telephone (202)
482–1785.
SUPPLEMENTARY INFORMATION:
Background
Appendix I
Discussion of the Issues
Comment 1: Whether the Application of Fact
Available (FA)/Adverse Facts Available
(AFA) Is Lawful.
Comment 2: Whether the Department’s
Circumvention Analysis Properly
Addressed the Statutory Criteria.
Comment 3: Whether the Department’s Use
of FA/AFA Is Uncorroborated,
Unreasonable and Punitive.
Comment 4: Whether the Remedy Imposed Is
Lawful.
Comment 5: Whether the Assignment of the
PRC-Wide Rate as AFA Is Appropriate.
[FR Doc. 2011–19921 Filed 8–4–11; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–588–850, A–588–851, A–485–805]
Certain Large Diameter Carbon and
Alloy Seamless Standard, Line and
Pressure Pipe From Japan; Certain
Small Diameter Carbon and Alloy
Seamless Standard, Line and Pressure
Pipe From Japan and Romania: Final
Results of the Expedited Second FiveYear Sunset Reviews of the
Antidumping Duty Orders
Import Administration,
International Trade Administration,
Department of Commerce.
DATES: Effective Date: August 5, 2011.
SUMMARY: On April 1, 2011, the
Department of Commerce
(‘‘Department’’) initiated the second
sunset reviews of the antidumping duty
orders on certain large diameter carbon
and alloy seamless standard, line and
pressure pipe (‘‘large diameter pipe’’)
from Japan and certain small diameter
carbon and alloy seamless standard, line
and pressure pipe (‘‘small diameter
pipe’’) from Japan and Romania. The
Department has conducted expedited
sunset reviews of these orders. As a
result of these reviews, the Department
finds that revocation of the antidumping
duty orders would likely lead to a
continuation or recurrence of dumping
at the margins identified in the ‘‘Final
Results of Review’’ section of this
notice.
erowe on DSKG8SOYB1PROD with NOTICES
AGENCY:
FOR FURTHER INFORMATION CONTACT:
Mary Kolberg, AD/CVD Operations,
Office 1, Import Administration,
International Trade Administration,
U.S. Department of Commerce, 14th
Street and Constitution Avenue, NW.,
VerDate Mar<15>2010
15:16 Aug 04, 2011
Jkt 223001
On April 1, 2011, the Department
published the notice of initiation of the
second sunset reviews of the
antidumping duty orders on large
diameter pipe from Japan and small
diameter pipe from Japan and Romania
pursuant to section 751(c) of the Tariff
Act of 1930, as amended (‘‘the Act’’).
See Initiation of Five-Year (‘‘Sunset’’)
Review, 76 FR 18163 (April 1, 2011).
The Department received a notice of
intent to participate in each of these
reviews from United States Steel
Corporation (‘‘Petitioner’’), within the
deadline specified in 19 CFR
351.218(d)(1)(i). Petitioner claimed
interested party status for each of these
reviews under section 771(9)(C) of the
Act, as a manufacturer of the domesticlike product in the United States.
On May 2, 2011, the Department
received a complete substantive
response from Petitioner for each of the
reviews within the deadline specified in
19 CFR 351.218(d)(3)(i). We received no
substantive responses from any
respondent interested parties. As a
result, pursuant to section 751(c)(3)(B)
of the Act and 19 CFR
351.218(e)(1)(ii)(C)(2), the Department
conducted expedited sunset reviews of
these antidumping duty orders.
Scope of the Orders
Large Diameter Pipe From Japan
The products covered by this order
are large diameter seamless carbon and
alloy (other than stainless) steel
standard, line, and pressure pipes
produced, or equivalent, to the
American Society for Testing and
Materials (‘‘ASTM’’) A–53, ASTM A–
106, ASTM A–333, ASTM A–334,
ASTM A–589, ASTM A–795, and the
American Petroleum Institute (‘‘API’’)
5L specifications and meeting the
physical parameters described below,
regardless of application. The scope of
this order also includes all other
products used in standard, line, or
pressure pipe applications and meeting
the physical parameters described
below, regardless of specification, with
the exception of the exclusions
discussed below. Specifically included
within the scope of this order are
seamless pipes greater than 4.5 inches
(114.3 mm) up to and including 16
inches (406.4 mm) in outside diameter,
regardless of wall-thickness,
manufacturing process (hot finished or
cold-drawn), end finish (plain end,
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
47555
beveled end, upset end, threaded, or
threaded and coupled), or surface finish.
The seamless pipes subject to this
order are currently classifiable under
the subheadings 7304.10.10.30,
7304.10.10.45, 7304.10.10.60,
7304.10.50.50, 7304.19.10.30,
7304.19.10.45, 7304.19.10.60,
7304.19.50.50, 7304.31.60.10,
7304.31.60.50, 7304.39.00.04,
7304.39.00.06, 7304.39.00.08,
7304.39.00.36, 7304.39.00.40,
7304.39.00.44, 7304.39.00.48,
7304.39.00.52, 7304.39.00.56,
7304.39.00.62, 7304.39.00.68,
7304.39.00.72, 7304.51.50.15,
7304.51.50.45, 7304.51.50.60,
7304.59.20.30, 7304.59.20.55,
7304.59.20.60, 7304.59.20.70,
7304.59.60.00, 7304.59.80.30,
7304.59.80.35, 7304.59.80.40,
7304.59.80.45, 7304.59.80.50,
7304.59.80.55, 7304.59.80.60,
7304.59.80.65, and 7304.59.80.70 of the
Harmonized Tariff Schedule of the
United States (‘‘HTSUS’’).
Specifications, Characteristics, and
Uses: Large diameter seamless pipe is
used primarily for line applications
such as oil, gas, or water pipeline, or
utility distribution systems. Seamless
pressure pipes are intended for the
conveyance of water, steam,
petrochemicals, chemicals, oil products,
natural gas and other liquids and gasses
in industrial piping systems. They may
carry these substances at elevated
pressures and temperatures and may be
subject to the application of external
heat. Seamless carbon steel pressure
pipe meeting the ASTM A–106 standard
may be used in temperatures of up to
1,000 degrees Fahrenheit, at various
American Society of Mechanical
Engineers (‘‘ASME’’) code stress levels.
Alloy pipes made to ASTM A–335
standard must be used if temperatures
and stress levels exceed those allowed
for ASTM A–106. Seamless pressure
pipes sold in the United States are
commonly produced to the ASTM A–
106 standard. Seamless standard pipes
are most commonly produced to the
ASTM A–53 specification and generally
are not intended for high temperature
service.
They are intended for the low
temperature and pressure conveyance of
water, steam, natural gas, air and other
liquids and gasses in plumbing and
heating systems, air conditioning units,
automatic sprinkler systems, and other
related uses. Standard pipes (depending
on type and code) may carry liquids at
elevated temperatures but must not
exceed relevant ASME code
requirements. If exceptionally low
temperature uses or conditions are
anticipated, standard pipe may be
E:\FR\FM\05AUN1.SGM
05AUN1
]]>Agencies
[Federal Register Volume 76, Number 151 (Friday, August 5, 2011)]
[Notices]
[Pages 47551-47555]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19921]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-894]
Certain Tissue Paper Products From the People's Republic of
China: Affirmative Final Determination of Circumvention of the
Antidumping Duty Order
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
Final Determination
We determine that certain tissue paper products (tissue paper)
produced by Max Fortune (Vietnam) Paper Products Company, Limited
(MFVN) \1\ and exported to the United States are made from jumbo rolls
and/or cut sheets of tissue paper produced in the People's Republic of
China (PRC), and are circumventing the antidumping duty order on tissue
paper from the PRC, as provided in section 781(b) of the Tariff Act of
1930, as amended (the Act).
---------------------------------------------------------------------------
\1\ MFVN is a company located in Vietnam and is a wholly-owned
subsidiary of Max Fortune Industrial Co., Ltd. (MFHK) located in
Hong Kong. MFHK was the exporter of the tissue paper produced and
shipped by MFVN to the United States during the analysis period of
this inquiry. See Memorandum to the File from Case Analysts entitled
``Verification of the Questionnaire Response of Max Fortune
(Vietnam) Paper Products Co., Ltd. and Its Affiliates in the Anti-
circumvention Inquiry and 2009-2010 Antidumping Duty Administrative
Review of Certain Tissue Paper Products from the People's Republic
of China,'' dated March 31, 2011 (MFVN verification report), at
exhibits 6A through 6F.
---------------------------------------------------------------------------
DATES: Effective Date: August 5, 2011.
FOR FURTHER INFORMATION CONTACT: Brian Smith or Gemal Brangman, AD/CVD
Operations, Office 2, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
1766 or (202) 482-3773, respectively.
SUPPLEMENTARY INFORMATION:
Background
On April 6, 2011, the Department of Commerce (the Department)
published in the Federal Register its affirmative preliminary
determination that tissue paper produced by MFVN in Vietnam using
Chinese-origin jumbo rolls and/or
[[Page 47552]]
cut sheets and exported to the United States is circumventing the
antidumping duty order on certain tissue paper products from the PRC
(PRC Tissue Paper Order),\2\ as provided in section 781(b) of the Act.
See Certain Tissue Paper Products From the People's Republic of China:
Affirmative Preliminary Determination of Circumvention of the
Antidumping Duty Order, 76 FR 19043 (April 6, 2011) (Preliminary
Determination).
---------------------------------------------------------------------------
\2\ See Notice of Amended Final Determination of Sales at Less
than Fair Value and Antidumping Duty Order: Certain Tissue Paper
Products from the People's Republic of China, 70 FR 16223 (March 30,
2005) (PRC Tissue Paper Order).
---------------------------------------------------------------------------
On May 2, 2011, the International Trade Commission (ITC) notified
the Department that consultations pursuant to section 781(e)(2) of the
Act were not necessary.\3\
---------------------------------------------------------------------------
\3\ See Letter from James R. Holbein, Acting Secretary to the
Commission, to Ronald K. Lorentzen, Deputy Assistant Secretary for
Import Administration, dated May 2, 2011.
---------------------------------------------------------------------------
On May 20, 2011, MFVN submitted its case brief. The petitioner \4\
did not submit a case brief. On May 27, 2011, the petitioner submitted
its rebuttal brief.
---------------------------------------------------------------------------
\4\ The petitioner is Seaman Paper Company of Massachusetts,
Inc.
---------------------------------------------------------------------------
On May 31, 2011, MFVN withdrew its May 6, 2011, request for a
hearing. No other party in this review requested a hearing.
On July 8 and 13, 2011, the Department held meetings with counsels
for MFVN and the petitioner to discuss the issues raised in MFVN's case
brief.\5\
---------------------------------------------------------------------------
\5\ See the Department's memoranda to the file entitled, ``Ex
Parte Meeting with Counsel for Max Fortune (Vietnam) Paper Products
Company, Limited,'' dated July 11, 2011, and ``Ex Parte Meeting with
the Petitioner's Counsel,'' dated July 14, 2011.
---------------------------------------------------------------------------
On July 14, 2011, Michaels Stores, Inc. (Michaels) filed an entry
of appearance and subsequently requested, on July 15, 2011, a
postponement of the final determination in order to submit information
regarding its imports of tissue paper from Vietnam. On July 20, 2011,
the Department informed Michaels that it was unable to grant its
request because the deadlines for submitting new factual information
and case/rebuttal briefs in this inquiry had passed.
On July 22, 2011, Michaels submitted another letter which the
Department rejected on July 26, 2011, pursuant to 19 CFR 351.302(d),
because it contained unsolicited, untimely new argument.
Scope of the Antidumping Duty Order
The tissue paper products subject to this order are cut-to-length
sheets of tissue paper having a basis weight not exceeding 29 grams per
square meter. Tissue paper products subject to this order may or may
not be bleached, dye-colored, surface-colored, glazed, surface
decorated or printed, sequined, crinkled, embossed, and/or die cut. The
tissue paper subject to this order is in the form of cut-to-length
sheets of tissue paper with a width equal to or greater than one-half
(0.5) inch. Subject tissue paper may be flat or folded, and may be
packaged by banding or wrapping with paper or film, by placing in
plastic or film bags, and/or by placing in boxes for distribution and
use by the ultimate consumer. Packages of tissue paper subject to this
order may consist solely of tissue paper of one color and/or style, or
may contain multiple colors and/or styles.
The merchandise subject to this order does not have specific
classification numbers assigned to them under the Harmonized Tariff
Schedule of the United States (HTSUS). Subject merchandise may be under
one or more of several different subheadings, including: 4802.30;
4802.54; 4802.61; 4802.62; 4802.69; 4804.31.1000; 4804.31.2000;
4804.31.4020; 4804.31.4040; 4804.31.6000; 4804.39; 4805.91.1090;
4805.91.5000; 4805.91.7000; 4806.40; 4808.30; 4808.90; 4811.90;
4823.90; 4820.50.00; 4802.90.00; 4805.91.90; 9505.90.40. The tariff
classifications are provided for convenience and customs purposes;
however, the written description of the scope of this order is
dispositive.\6\
---------------------------------------------------------------------------
\6\ On January 30, 2007, at the direction of U.S. Customs and
Border Protection (CBP), the Department added the following HTSUS
classifications to the AD/CVD module for tissue paper: 4802.54.3100,
4802.54.6100, and 4823.90.6700. Also on July 14, 2011, at the
direction of CBP, the Department added the following HTSUS
classification to the AD/CVD module for tissue paper: 4811.90.9080.
However, we note that the six-digit classifications for these
numbers were already listed in the scope.
---------------------------------------------------------------------------
Excluded from the scope of this order are the following tissue
paper products: (1) Tissue paper products that are coated in wax,
paraffin, or polymers, of a kind used in floral and food service
applications; (2) tissue paper products that have been perforated,
embossed, or die-cut to the shape of a toilet seat, i.e., disposable
sanitary covers for toilet seats; (3) toilet or facial tissue stock,
towel or napkin stock, paper of a kind used for household or sanitary
purposes, cellulose wadding, and webs of cellulose fibers (HTSUS
4803.00.20.00 and 4803.00.40.00).
Scope of the Circumvention Inquiry
The products covered by this inquiry are tissue paper products, as
described above in the ``Scope of the Antidumping Duty Order'' section,
which are produced in Vietnam by MFVN from Chinese-origin jumbo rolls
and/or cut sheets of tissue paper, and exported to the United States.
Statutory Provisions Regarding Circumvention
Section 781(b) of the Act provides that the Department may find
circumvention of an antidumping duty order when merchandise of the same
class or kind subject to the order is completed or assembled in a
foreign country other than the country to which the order applies. In
conducting anti-circumvention inquiries under section 781(b)(1) of the
Act, the Department analyzes the following criteria: (A) Merchandise
imported into the United States is of the same class or kind as any
merchandise produced in a foreign country that is subject to an
antidumping duty order; (B) before importation into the United States,
such imported merchandise is completed or assembled in another foreign
country from merchandise which is subject to the order or produced in
the foreign country that is subject to the order; (C) the process of
assembly or completion in the foreign country referred to in (B) is
minor or insignificant; (D) the value of the merchandise produced in
the foreign country to which the antidumping duty order applies is a
significant portion of the total value of the merchandise exported to
the United States; and (E) the administering authority determines that
action is appropriate to prevent evasion of such order.
Section 781(b)(2) of the Act provides the criteria for determining
whether the process of assembly or completion is minor or
insignificant. These criteria are: (a) The level of investment in the
foreign country; (b) the level of research and development in the
foreign country; (c) the nature of the production process in the
foreign country; (d) the extent of the production facilities in the
foreign country; and (e) whether the value of the processing performed
in the foreign country represents a small proportion of the value of
the merchandise imported into the United States.
The Statement of Administrative Action (SAA) accompanying the
Uruguay Round Agreements Act, H. Doc. No. 103-316, at 893 (1994),
provides some guidance with respect to these criteria. It explains that
no single factor listed in section 781(b)(2) of the Act will be
controlling. Accordingly, it is the Department's practice to evaluate
each of the factors as they exist in the foreign country depending on
the particular facts present in the
[[Page 47553]]
circumvention inquiry. Therefore, the importance of any one of the
factors listed under section 781(b)(2) of the Act can vary from case to
case depending on the particular circumstances unique to each
circumvention inquiry.
Section 781(b)(3) of the Act further provides that, in determining
whether to include merchandise assembled or completed in a foreign
country in an antidumping duty order, the Department shall consider:
(A) The pattern of trade, including sourcing patterns; (B) whether the
manufacturer or exporter of the merchandise described in accordance
with section 781(b)(1)(B) of the Act is affiliated with the person who
uses the merchandise described in accordance with section 781(b)(1)(B)
to assemble or complete in the foreign country the merchandise that is
subsequently imported into the United States; and (C) whether imports
into the foreign country of the merchandise described in accordance
with section 781(b)(1)(B) have increased after the initiation of the
investigation which resulted in the issuance of such order.
Summary of Analysis of Statutory Provisions
We considered all of the comments submitted by the interested
parties and find, pursuant to section 781(b) of the Act, that exports
to the United States of tissue paper produced by MFVN using Chinese-
origin jumbo rolls and/or cut sheets are circumventing the PRC Tissue
Paper Order.
As we explained in the Preliminary Determination, based on the list
of products MFVN provided in its questionnaire response, we find that
the merchandise subject to this inquiry meets the written description
of the products subject to the PRC Tissue Paper Order and is,
therefore, of the same class or kind of merchandise as that subject to
the PRC Tissue Paper Order, pursuant to section 781(b)(1)(A) of the
Act. In addressing the other statutory criteria under sections
781(b)(1), (2), and (3) of the Act, we relied on facts available where
the respondent failed to provide necessary, verifiable information.
In its questionnaire response, MFVN admitted that it was possible
that it manufactured some tissue paper in Vietnam from PRC-origin jumbo
rolls before and during 2007. MFVN also stated that its records before
2008 were incomplete and unreliable.\7\ However, MFVN asserted that it
could conclusively demonstrate that as of January 1, 2008, it did not
convert any PRC-origin jumbo rolls and/or cut sheets of tissue paper in
Vietnam into its own tissue paper products.\8\ At verification, MFVN
failed to provide the requested production and accounting records to
show when it ceased using Chinese-origin jumbo rolls and/or cut sheets
in its production of tissue paper products for export to the United
States.\9\ Accordingly, we conclude that MFVN impeded the conduct of
this anti-circumvention inquiry by withholding the necessary verifiable
information requested by the Department under section 776(a)(2) of the
Act.
---------------------------------------------------------------------------
\7\ See June 28, 2010, response to the Department's April 23,
2010, anti-circumvention questionnaire (June 28 Response) at pages 3
and 12.
\8\ See id.
\9\ See MFVN verification report at pages 2 and 40.
---------------------------------------------------------------------------
Furthermore, we conclude that MFVN failed to act to the best of its
ability in providing this necessary information pursuant to section
776(b) of the Act. MFVN was expected to maintain the requested
production and accounting records in the normal course of business and
was required to maintain them under Vietnamese accounting law,\10\ but
did not do so.\11\ Despite its claims, MFVN could not conclusively
demonstrate that as of January 1, 2008, it did not convert any Chinese-
origin jumbo rolls into tissue paper sold in the United States.\12\
Moreover, although it claimed that it could accurately account for its
inventory as of January 1, 2008,\13\ the Department discovered at
verification that MFVN withdrew Chinese-origin jumbo rolls from
inventory in March 2010, but could not account for the ultimate
destination or usage of those jumbo rolls in its books and records.\14\
Therefore, the Department determined, as adverse facts available (AFA),
that MFVN used Chinese-origin jumbo rolls and/or cut-sheets of tissue
paper in its production of tissue paper for export to the United States
from January 1, 2005, to December 31, 2007, and that MFVN continued to
use such merchandise from inventory during that period to produce
tissue paper for export on or after January 1, 2008. See Comments 1 and
3 of the Issues and Decision Memorandum (Decision Memo) accompanying
this notice for further discussion of the application of AFA for
purposes of the final determination in this inquiry.
---------------------------------------------------------------------------
\10\ For companies doing business in Vietnam, Vietnamese
regulations require companies such as MFVN to retain such records
for up to 10 years. See Memorandum to the File dated March 31, 2011
which contains the following document, ``Decree No. 129/2004/ND-CP
of May 31, 2004 Detailing and Guiding the Implementation of a Number
of Articles of the Accounting Law, Applicable to Business
Activities,'' issued by the Government of the Socialist Republic of
Vietnam on May 31, 2004.
\11\ See MFVN verification report at page 2.
\12\ See id. at pages 2 and 35-36.
\13\ See June 28 Response at pages 4 and 12.
\14\ See MFVN verification report at pages 2 and 40.
---------------------------------------------------------------------------
In determining that MFVN used Chinese-origin jumbo rolls and/or
cut-sheets of tissue paper in its production of tissue paper for export
to the United States from January 1, 2005, to December 31, 2007, as
AFA, we relied on information provided by the petitioner in its
February 19, 2010, request for initiation of this anti-circumvention
inquiry (February 19 submission), which showed that during the 2005-
2007 period, MFVN imported a significant quantity of jumbo rolls from
the PRC. MFVN did not provide any information on the record that
contradicted the petitioner's information and, in fact, MFVN admitted
in its questionnaire responses that ``it is possible that MFVN might
have made {tissue paper{time} in Vietnam from jumbo rolls from the PRC
during this time period.''\15\ Further, Vietnamese Customs data
provided to Department officials at verification covered entries during
2008 and afterward, and does not contradict the petitioner's pre-2008
data or MFVN's admission.\16\ Moreover, MFVN did not provide pre-2008
Vietnamese Customs data at verification and there is no information on
the record that contradicts the petitioner's pre-2008 data. Therefore,
we consider this information to be corroborated to the extent
practicable pursuant to section 776(c) of the Act.
---------------------------------------------------------------------------
\15\ See MFVN's June 28 Response at pages 4 and 12.
\16\ See MFVN verification report at pages 3, 23-24, and 32-33.
---------------------------------------------------------------------------
Based on the above analysis, relying on AFA, we determine, pursuant
to section 781(b)(1)(B) of the Act that MFVN completed tissue paper in
Vietnam using jumbo rolls and/or cut sheets produced in the PRC. With
respect to section 781(b)(1)(C) of the Act, we determine that the
process of converting the jumbo rolls and/or cut sheets of tissue paper
into finished tissue paper products in Vietnam is minor or
insignificant, after taking into consideration all of the factors
listed in section 781(b)(2) of the Act. See Comment 2 of the Decision
Memo for further discussion. With respect to section 781(1)(D) of the
Act, we determine that the value of the jumbo rolls and/or cut sheets
of tissue paper MFVN used in its production is a significant portion of
the value of the merchandise exported to the United States. See Comment
2 of the Decision Memo for further discussion.
[[Page 47554]]
We note that we relied on secondary information in addressing
section 781(b)(1)(C) of the Act. Specifically, because MFVN did not
provide the Department with sufficient information to reach a
conclusion based solely on its own data under this provision, we
relied, in part, on information contained in the petitioner's February
19 submission to conclude that the tissue paper completion process in
Vietnam is minor or insignificant.\17\ MFVN did not provide any
information on the record of this inquiry to contradict this
information, and there is no other information on the record that
contradicts this information. Moreover, the results of a prior
circumvention inquiry of the PRC Tissue Paper Order corroborates the
Department's conclusion as AFA that the processing in Vietnam is minor
or insignificant, as the same conclusion was reached by the Department
in that prior inquiry which also involved allegations of Chinese-origin
jumbo rolls being converted to cut-to-length tissue paper in Vietnam.
See Certain Tissue Paper Products from the People's Republic of China:
Affirmative Preliminary Determination of Circumvention of the
Antidumping Duty Order and Extension of Final Determination, 73 FR
21580, 21582-21587 (April 22, 2008) (Quijiang Prelim) (unchanged in
Certain Tissue Paper Products From the People's Republic of China:
Affirmative Final Determination of Circumvention of the Antidumping
Duty Order, 73 FR 57591 (October 3, 2008) (Quijiang Final)).
Furthermore, the Department is unaware of any available independent
sources it could use to corroborate this information. Accordingly, we
consider the petitioner's information relied upon by the Department as
AFA to reach a finding under section 781(b)(1)(C) of the Act
corroborated to the extent practicable under section 776(c) of the Act.
See Comment 3 of the Decision Memo for further discussion of the
Department's corroboration of secondary information used as AFA as part
of its analysis under section 781(b)(1)(C) of the Act.
---------------------------------------------------------------------------
\17\ See the petitioner's February 19 submission at pages 34-35
and Exhibit 16.
---------------------------------------------------------------------------
Similarly, we relied on secondary information in addressing section
781(b)(1)(D) of the Act. Because MFVN did not provide the Department
with sufficient information to determine whether the value of the jumbo
rolls and/or cut sheets is a significant portion of the value of MFVN's
finished tissue paper products exported to the United States, we relied
on the data in the petitioner's February 19 submission\18\ as AFA, to
make this determination. MFVN did not provide any information on the
record of this inquiry to contradict this information, and there is no
other information on the record to contradict it. Additionally, as in
the case of our determination with respect to the Vietnamese
processing, pursuant to section 776(c) of the Act, we corroborated to
the extent practicable the petitioner's data based on our findings in
the above-referenced prior anti-circumvention inquiry of the PRC Tissue
Paper Order. See Quijiang Prelim, 73 FR at 21582-21587 (unchanged in
Quijiang Final). Furthermore, the Department is unaware of any
available independent sources it could use to corroborate this
information. Accordingly, we consider the petitioner's information
relied upon by the Department as AFA to reach a finding under section
781(b)(1)(D) of the Act corroborated to the extent practicable under
section 776(c) of the Act. See Comment 3 of the Decision Memo for
further discussion.
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\18\ See the petitioner's February 19 submission at pages 34-36.
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As a result of the above analysis, we affirm our preliminary
determination that action by the Department is warranted in this case
to prevent evasion of the PRC Tissue Paper Order, pursuant to section
781(b)(1)(E) of the Act.
Furthermore, based on the additional factors we must consider under
section 781(b)(3) of the Act, we find that MFVN's pattern of trade,
affiliations, and level of importation of Chinese-origin tissue paper
jumbo rolls/sheets support an affirmative finding of circumvention. See
Comment 2 of the Decision Memo for the Department's complete final
analysis of the criteria under section 781(b) of the Act.
Based on our overall analysis of the statutory provisions regarding
circumvention via completion or assembly in a foreign country, we
conclude, pursuant to section 781(b) of the Act, that exports to the
United States of tissue paper products produced from Chinese-origin
jumbo rolls and/or cut sheets which are further processed in Vietnam by
MFVN are circumventing the PRC Tissue Paper Order.
All issues raised by the interested parties to which we have
responded are listed in the Appendix to this notice and addressed in
the Decision Memo, which is hereby adopted by this notice. Parties can
find a complete discussion of the issues raised in this inquiry and the
corresponding recommendation in this public memorandum, which is on
file in the Central Records Unit (CRU) of the main Department of
Commerce building. In addition, a complete version of the Decision Memo
can be accessed directly on the Internet at https://ia.ita.doc.gov/. The
paper copy and electronic copy of the Decision Memo are identical in
content.
Continuation of Suspension of Liquidation
In accordance with sections 735(c) and 781(b) of the Act and 19 CFR
225(i)(3), we will direct CBP to suspend liquidation and require cash
deposits of estimated duties, at the rate applicable to the exporter,
on all unliquidated entries of tissue paper produced by MFVN that were
entered, or withdrawn from warehouse, for consumption on or after March
29, 2010, the date of initiation of the circumvention inquiry.\19\
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\19\ In the Preliminary Determination, at 76 FR 19048, we stated
that we would direct CBP to suspend liquidation and to require a
cash deposit of estimated duties, at the PRC-wide rate of 112.64
percent, on all unliquidated entries of tissue paper produced by
MFVN ``and/or exported by MFVN'' that was entered, or withdrawn from
warehouse, for consumption on or after March 29, 2010, the date of
initiation of the circumvention inquiry. However, in this inquiry,
the Department is concerned only with merchandise produced by MFVN,
irrespective of the exporter. Therefore, we have clarified our
instructions for purposes of this final determination. See Comment 5
of the Decision Memo for further discussion.
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Should the Department conduct an administrative review in the
future, and determine in the context of that review that MFVN has not
produced for export tissue paper using Chinese-origin jumbo rolls and/
or cut sheets, the Department will consider initiating a changed
circumstances review pursuant to section 751(b) of the Act to determine
if the continued suspension of all tissue paper produced by MFVN is
warranted.
Notice to Parties
This notice serves as the only reminder to parties subject to the
administrative protective order (APO) of their responsibility
concerning the return or destruction of proprietary information
disclosed under APO in accordance with section 351.305 of the
Department's regulations. Timely written notification of the return or
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 final affirmative circumvention determination is published in
accordance with section 781(b) of the Act and 19 CFR 351.225.
[[Page 47555]]
Dated: August 1, 2011.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
Appendix I
Discussion of the Issues
Comment 1: Whether the Application of Fact Available (FA)/Adverse
Facts Available (AFA) Is Lawful.
Comment 2: Whether the Department's Circumvention Analysis Properly
Addressed the Statutory Criteria.
Comment 3: Whether the Department's Use of FA/AFA Is Uncorroborated,
Unreasonable and Punitive.
Comment 4: Whether the Remedy Imposed Is Lawful.
Comment 5: Whether the Assignment of the PRC-Wide Rate as AFA Is
Appropriate.
[FR Doc. 2011-19921 Filed 8-4-11; 8:45 am]
BILLING CODE 3510-DS-P
