69 FR 34130, June 18, 2004

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-887]

Final Determination of Sales at Less Than Fair Value: 
Tetrahydrofurfuryl Alcohol From the People's Republic of China

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of final determination of sales at less than fair value.

-----------------------------------------------------------------------

EFFECTIVE DATE: June 18, 2004.

FOR FURTHER INFORMATION CONTACT: Catherine Bertrand or Peter Mueller, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue NW., 
Washington, DC 20230; telephone: (202) 482-3207 and (202) 482-5811, 
respectively.

Final Determination

    We determine that tetrahydrofurfuryl alcohol from the People's 
Republic of China (``PRC'') is being, or is likely to be, sold in the 
United States at less than fair value (``LTFV''), as provided in 
section 735 of the Tariff Act of 1930, as amended (``the Act''). The 
estimated margin of dumping is shown in the ``Continuation of 
Suspension of Liquidation'' section of this notice.

Case History

    We published in the Federal Register the preliminary determination 
in this investigation on January 27, 2004. See Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Tetrahydrofurfuryl 
Alcohol from the People's Republic of China, 69 FR 3887 (January 27, 
2004) (``Preliminary Determination''). Since the publication of the 
Preliminary Determination, the following events have occurred.
    On February 4, 2004, the respondent, Qingdao (F.T.Z.) Wenkem 
Trading Company, Ltd. (``QWTC''), submitted its Section D supplemental 
questionnaire response. Also on February 4, 2004, the Department 
received pre-verification comments from the petitioner.
    From February 9 through 12, 2004, the Department conducted a 
factors of production verification at Zhucheng Huaxiang Chemical Co., 
Ltd. (``ZHC''). On February 13, 2004, the Department conducted a sales 
verification at QWTC.
    On February 24, 2004, the petitioner submitted a request for a 
public hearing in accordance with 19 CFR 351.310(c). On April 28, 2004, 
the petitioner withdrew its request for a hearing. Because the 
petitioner was the only party to request a hearing, and because it was 
withdrawn in a timely manner, the Department did not conduct a hearing.
    On February 27, 2004, the Department received a request from QWTC 
for a postponement of the final determination. On March 15, 2004, the 
Department postponed the final determination, in accordance with 
section 735(a)(2) of the Act by no later than 135 days after the 
publication of preliminary determination in the Federal Register. 
Therefore, the final determination was postponed until June 10, 2004. 
See Notice of Postponement of Final Determination of Antidumping Duty 
Investigation: Tetrahydrofurfuryl Alcohol from the People's Republic of 
China, 69 FR 12127 (March 15, 2004).
    In the Preliminary Determination, we stated that if we made a 
change in our normal calculation methodology previous to the final 
determination, we would release to interested parties for comment a 
preliminary calculation sheet and analysis memorandum using that 
methodology. On March 9, 2004, the Department released to the 
interested parties its post-preliminary calculation, which included a 
factor value memorandum, an analysis memorandum with an attachment, and 
a print-out of the log for the margin calculation. See post-preliminary 
calculation.
    On March 10, 2004, the Department released its factors of 
production and sales verification report to interested parties. See 
Verification of Factors of Production for Zhucheng Huaxiang Chemical 
Co., Ltd. (``ZHC'') and for the Sales of Qingdao Wenkem (F.T.Z.) 
Trading Co., Ltd. (``QWTC'') in the Antidumping Duty Investigation of 
Tetrahydrofurfuryl Alcohol from the People's Republic of China 
(``PRC'') (``Verification Report'').
    On March 15, 2004, the petitioner requested an extension for the 
time limit for submitting the case briefs and rebuttal briefs. On March 
16, 2004, the Department granted interested parties a sixteen-day 
extension for submission of the case briefs and explained that the 
rebuttal briefs would be due five days thereafter.
    On March 19, 2004, QWTC submitted comments to the Department's 
post-preliminary calculation.
    On March 23, 2004, the petitioner placed on the record public 
information for the purpose of providing the Department with additional 
information to be used in valuing the factors of production.
    On April 5, 2004, the petitioner submitted its case brief with 
respect to the sales and factors of production verification and the 
Department's Preliminary Determination. On April 5, 2004, QWTC 
submitted its ``Comments on the Calculation of Normal Value'' with 
respect to the sales and factors of production verification and the 
Department's preliminary determination. On April 7, 2004, the 
Department placed a memorandum in the file explaining that the 
respondent's document titled, ``Comments on the Calculation of Normal 
Value,'' was in fact the respondent's case brief. On April 7, 2004, the 
Department rejected both the petitioner's case brief and the 
respondent's case brief, concluding that the each contained new 
information that

[[Page 34131]]

was untimely filed in accordance with section 351.301(b)(1) of the 
Department's regulations. Also on April 7, 2004, the Department 
withdrew from the record all known copies of the case brief and 
returned them the petitioner and respondent, in accordance with section 
351.302(d)(2) of the Department's regulations.
    On April 8, 2004, the petitioner submitted its revised case brief. 
On April 9, 2004, the respondent submitted its revised case brief.
    On April 19, 2004, the petitioner submitted a rebuttal brief with 
respect to the sales and factors of production verification and the 
Department's Preliminary Determination. On April 19, 2004, the 
respondent requested an extension for submitting its rebuttal brief. On 
April 21, 2004, the Department received, via electronic-mail, a 
document containing the respondent's rebuttal brief. On April 22, 2004, 
the Department sent a letter to the respondent rejecting its request 
for an extension and rejecting the respondent's rebuttal brief. 
Following section 351.103(b) of the Department's regulations, the 
Department explained in its letter that the extension request and the 
rebuttal brief were both improperly filed, as they were not received in 
Import Administration's Dockets Center by close of business on April 
19, 2004.

Period of Investigation

    The period of investigation (``POI'') is October 1, 2002 through 
March 31, 2003. This period corresponds to the two most recent fiscal 
quarters prior to the month of the filing of the Petition (June 23, 
2003). See 19 CFR 351.204(b)(1).

Scope of Investigation

    For the purpose of this investigation, the product covered is 
tetrahydrofurfuryl alcohol (C5H10O2) 
(``THFA''). THFA, a primary alcohol, is a clear, water white to pale 
yellow liquid. THFA is a member of the heterocyclic compounds known as 
furans and is miscible with water and soluble in many common organic 
solvents. THFA is currently classified in the Harmonized Tariff 
Schedules of the United States (``HTSUS'') under subheading 
2932.13.00.00. Although the HTSUS subheadings are provided for 
convenience and for the purposes of the U.S. Customs and Border 
Protection (``Customs''), the Department's written description of the 
merchandise under investigation is dispositive.

Analysis of Comments Received

    All issues raised in the case briefs by the parties to this 
investigation are addressed in detail in the Memorandum to James J. 
Jochum, Assistant Secretary for Import Administration, from Jeffrey A. 
May, Deputy Assistant Secretary for Import Administration, Issues and 
Decision Memorandum for the Less Than Fair Value Investigation of 
Tetrahydrofurfuryl Alcohol from the People's Republic of China, (June 
10, 2004) (``Final Decision Memorandum''), which is hereby adopted by 
this notice. A list of the issues which parties raised, and to which we 
have responded, all of which are in the Final Decision Memorandum, is 
attached to this notice as an appendix. Parties can find a complete 
discussion of all issues raised in this investigation and the 
corresponding recommendations in this public memorandum, which is on 
file in B-099. In addition, a complete version of the Final Decision 
Memorandum can be accessed directly on the World Wide Web at 
http://ia.ita.doc.gov/frn/. The paper copy and electronic version of 
the Final Decision Memorandum are identical in content.

Non-Market Economy Country Status

    In our Preliminary Determination, we treated the PRC as a non-
market economy (``NME'') country. The Department has treated the PRC as 
a NME country in all past antidumping investigations. See, e.g., Notice 
of Final Determination of Sales at Less Than Fair Value: Bulk Aspirin 
From the People's Republic of China, 65 FR 33805 (May 25, 2000). A 
designation as an NME remains in effect until it is revoked by the 
Department. See section 771(18)(C) of the Act. The respondent in this 
investigation has not requested a revocation of the PRC's NME status. 
We have, therefore, determined to continue to treat the PRC as an NME 
country. When the Department is investigating imports from an NME, 
section 773(c)(1) of the Act directs us to base the normal value on the 
NME producer's factors of production, valued in a comparable market 
economy that is a significant producer of comparable merchandise.
    Furthermore, no interested party has requested that the THFA 
industry in the PRC be treated as a market-oriented industry and no 
information has been provided that would lead to such a determination. 
Therefore, we have not treated the THFA industry in the PRC as a 
market-oriented industry in this investigation.

Separate Rates

    In our Preliminary Determination, we found that the respondent met 
the criteria for the application of separate, company-specific 
antidumping duty rate. For the purpose of the final determination, we 
continue to grant a separate, company-specific rate to the respondent. 
For a complete discussion of the Department's determination that the 
respondent is entitled to a separate rate, please see Memorandum to the 
File from Peter Mueller, Case Analyst to Edward C. Yang, Director, 
Office IX, Antidumping Duty Investigation of Tetrahydrofurfuryl Alcohol 
from the People's Republic of China, (December 22, 2003).

The PRC-Wide Rate

    We are continuing to apply the same methodology to our PRC-wide 
rate as used in the Preliminary Determination. For a discussion of our 
methodology for the PRC-wide rate, please see Memorandum to the File 
From Peter Mueller, Case Analyst, to Edward C. Yang, Office Director, 
Office IX, Antidumping Duty Investigation of Tetrahydrofurfuryl Alcohol 
from the People's Republic of China: PRC-Wide Rate, (June 10, 2004).

Surrogate Country

    For purposes of the final determination, we continue to find that 
India is the appropriate primary surrogate country for the PRC. For 
further discussion and analysis regarding the surrogate country 
selection, see the Department's Preliminary Determination.

Verification

    As provided in section 782(i) of the Act, we verified the 
information submitted by the respondent for use in our final 
determination. We used standard verification procedures including 
examination of relevant accounting and production records, and original 
source documents provided by the respondent. For changes resulting from 
the results of verification and from the post-preliminary calculation 
see Memorandum to the File, from Peter Mueller, Case Analyst, through 
Robert Bolling, Program Manager, Analysis for the Final Determination 
of Tetrahydrofurfuryl Alcohol from the People's Republic of China, 
(June 10, 2004) (``Final Analysis Memo'').

Facts Available

    For purposes of this final determination, we have determined that 
the use of facts available is appropriate for certain elements of the 
respondent's dumping margin calculations. Section

[[Page 34132]]

776(a)(2) of the Act provides that if an interested party: (A) 
Withholds information that has been requested by the Department; (B) 
fails to provide such information in a timely manner or in the form or 
manner requested, subject to subsections 782(c)(1) and (e) of the Act; 
(C) significantly impedes a determination under the antidumping 
statute; or (D) provides such information but the information cannot be 
verified, the Department shall, subject to subsection 782(d) of the 
Act, use facts otherwise available in reaching the applicable 
determination. For a further discussion of the facts available applied 
to the respondent, please see the Final Decision Memorandum at Comment 
1.

Adverse Facts Available

    For purposes of this final determination, we have determined that 
the use of adverse facts available is appropriate for certain elements 
of the respondent's dumping margin calculations. Section 776(b) of the 
Act provides that if the administering authority or the Commission (as 
the case may be) finds that an interested party has failed to cooperate 
by not acting to the best of its ability to comply with a request for 
information from the administering authority or the Commission (as the 
case may be), in reaching the applicable determination under this 
title, may use an inference that is adverse to the interests of that 
party in selecting from among the facts otherwise available. Such 
adverse inference may include reliance on information derived from: (1) 
The petition; (2) a final determination in the investigation under this 
title; (3) any previous review under section 751 or determination under 
section 753; or (4) any other information placed on the record.
    Adverse inferences are appropriate ``to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully.'' See Statement of Administrative Action at 870; 
Borden, Inc. v. United States, 4 F. Supp. 2d 1221 (CIT 1998); 
Mannesmannrohren-Werke AG v. United States, 77 F. Supp. 2d 1302 (CIT 
1999). The Court of Appeals for the Federal Circuit, in Nippon Steel 
Corporation v. United States, 337 F. 3d 1373, 1380 (Fed. Cir. 2003), 
provided an explanation of the ``failure to act to the best of its 
ability'' standard, holding that the Department need not show 
intentional conduct existed on the part of the respondent, but merely 
that a ``failure to cooperate to the best of a respondent's ability'' 
existed (i.e., information was not provided ``under circumstances in 
which it is reasonable to conclude that less than full cooperation has 
been shown'').
    The record shows that QWTC, in part, failed to cooperate to the 
best of its ability, within the meaning of section 776(b) of the Act. 
In reviewing the evidence on the record, the Department finds that the 
respondent failed to provide requested information at the factor of 
production verification for the indirect inputs used to produce the 
respondent's self-produced inputs of electricity, steam, hydrogen, and 
catalyst. As a general matter, it is reasonable for the Department to 
assume that the respondent possessed the records necessary to 
participate in the factor of production verification. However, by not 
supplying the information the Department requested, the respondent 
failed to cooperate to the best of their ability. As the respondent has 
failed to cooperate to the best of its ability, we are applying an 
adverse inference pursuant to section 776(b) of the Act to estimate the 
respondent's consumption of its self-produced hydrogen, steam, 
electricity, and catalyst. For a further discussion of the adverse 
facts available applied to the respondent, please see Final Decision 
Memorandum, at Comments 1, 5, 8, and 9.

Changes Since the Preliminary Determination

    Based on our findings at verification, additional information 
placed on the record of this investigation, the post-preliminary 
calculation, and analysis of comments received, we have made 
adjustments to the methodology in calculating the final dumping margin 
in this proceeding. For discussions of the specific changes made since 
the Preliminary Determination to the final margin programs, please see 
Final Analysis Memo.

Surrogate Values

    The Department made changes to the starting point and the surrogate 
values used to calculate the normal value from the Preliminary 
Determination. For a complete discussion of the starting point and the 
surrogate values, see Memorandum to the File from Peter Mueller, Case 
Analyst, through Robert Bolling, Program Manager, and Edward C. Yang, 
Office Director, regarding Factor Valuations for the Final 
Determination (``Final Factor Value Memo''), dated June 10, 2004.

Disclosure

    We will disclose the calculations performed within five days of the 
date of publication of this notice to parties in this proceeding in 
accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing Customs to continue to suspend liquidation of all entries of 
subject merchandise from the PRC, that are entered, or withdrawn from 
warehouse, for consumption on or after the date of publication of the 
Preliminary Determination. Customs shall continue to require a cash 
deposit or posting of a bond equal to the estimated amount by which the 
normal value exceeds the U.S. price as shown below. This suspension of 
liquidation instructions will remain in effect until further notice.

Final Determination

    We determine that the following weighted-average dumping margins 
exist for the period October 1, 2002 through March 31, 2003:

                 Tetrahydrofurfuryl Alcohol From the PRC
------------------------------------------------------------------------
                                                              Weighted-
                                                               average
               Producer/manufacturer/exporter                   margin
                                                              (percent)
------------------------------------------------------------------------
Qingdao (F.T.Z.) Wenkem Trading Company Limited............       136.86
PRC--Wide Rate.............................................       136.86
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (``ITC'') of our determination. As our 
final determination is affirmative, the ITC will determine, within 45 
days, whether these imports are materially injuring, or threaten 
material injury to, the U.S. industry. If the ITC determines that 
material injury, or threat of material injury does not exist, the 
proceeding will be terminated and all securities posted will be 
refunded or cancelled. If the ITC determines that such injury does 
exist, the Department will issue an antidumping duty order directing 
Customs officials to assess antidumping duties on all imports of 
subject merchandise entered for consumption on or after the effective 
date of the suspension of liquidation.

Notification Regarding Administrative Protective Order (``APO'')

    This notice also serves as a reminder to parties subject to APO of 
their responsibility concerning the disposition of proprietary 
information disclosed under APO in accordance

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with section 351.305 of the Department's regulations. Timely 
notification of return/destruction of APO materials or conversion to 
judicial protective order is hereby requested. Failure to comply with 
the terms of an APO is a sanctionable violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: June 10, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.

Appendix: Issues in the Final Decision Memorandum

Comment 1: The Use of Adverse Facts Available

Comment 2: Starting Point for Calculation of Export Price

Comment 3: Freight Deduction to Calculation of Export Price

Comment 4: Surrogate Values for the Ocean Freight Deduction

Comment 5: Multi-Stage Factors of Production

Comment 6: THFA Production Starting Point

Comment 7: Furfural Value

Comment 8: Values for Dregs and Residue

Comment 9: Value for Hydrogen

Comment 10: Packing Value

[FR Doc. 04-13817 Filed 6-17-04; 8:45 am]

BILLING CODE 3510-25-P