Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Notices 26595 

1The following companies upon which we 

initiated an administrative review, except Deseado, 

withdrew their requests for review after the 

issuance of the quantity and value (‘‘Q&V’’) 

questionnaire: Amstar Business Company Limited 

(‘‘Amstar’’), Apex Enterprises International Ltd. 

(‘‘Apex’’) and Apex’s producer, Golden Industrial 

Co., Ltd. (‘‘Golden’’), Fuzhou Eastown Arts Co., Ltd. 

(‘‘Fuzhou’’), Gift Creative Company, Ltd. (‘‘Gift’’), 

Maverick Enterprise Co., Ltd. (‘‘Maverick’’) and 

Maverick’s producer Great Founder International 

Co. (‘‘Great Founder’’), Qingdao Kingking Applied 

Chemistry Co., Ltd. (‘‘KingKing’’), Shantou Jinyuan 

Mingfeng Handicraft Co. (‘‘Shantou Jinyuan’’), 

Shanghai Shen Hong Arts and Crafts Co., Ltd. 

(‘‘Shen Hong’’) and Shen Hong’s producer Shanghai 

Changran Enterprise, Ltd . (‘‘Changran’’), Shenzhen 

Sam Lick Manufactory (and affiliated exporter 

Prudential (HK) Candles Manufacturing Co., Ltd). 

(‘‘Sam Lick,’’ collectively), Transfar International 

Corp. (‘‘Transfar’’); 

2The original deadline for the quantity and value 

questionnaire was October 26, 2006. 

3See Letter dated October 30, 2006, to Deseado 

regarding the missed deadline for Q&V 

questionnaire response. 

4Sections A (Organization, Accounting Practices, 

Markets and Merchandise), C (Sales to the United 

States), D (Factors of Production), E (Cost of Further 

Manufacturing Performed in the United States) and 

Sales and Factors of Production Reconciliations. 

5See Deseado’s Section A questionnaire response 

dated January 4, 2007, at 19. 

6 In its March 19, 2007, letter, Deseado stated that 

it was unable to provide the information requested 

in the Department’s March 8, 2007, letter due to its 

supplier’s unwillingness to cooperate and provide 

the information. 

and the terms of an APO is a violation 

which is subject to sanction. 

This notice is issued and published in 

accordance with sections 751(c), 752, 

and 777(i)(1) of the Act. 

Dated: May 3, 2007. 

David M. Spooner, 

Assistant Secretary for Import 

Administration. 

[FR Doc. E7–9038 Filed 5–9–07; 8:45 am] 

BILLING CODE 3510–DS–P 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–570–504] 

Petroleum Wax Candles from the 

People’s Republic of China: 

Preliminary Results and Partial 

Rescission of the Eighth 

Administrative Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: The Department of Commerce 

(‘‘the Department’’) is currently 

conducting an administrative review of 

the antidumping duty order on 

petroleum wax candles from the 

People’s Republic of China (‘‘PRC’’) 

covering the period August 1, 2005, 

through July 31, 2006. This review 

covers imports of subject merchandise 

from one manufacturer/exporter: 

Deseado International, Ltd. (‘‘Deseado’’). 

If these preliminary results are adopted 

in our final results of review, we will 

instruct U.S. Customs and Border 

Protection (‘‘CBP’’) to assess 

antidumping duties on all appropriate 

entries in accordance with these results. 

We invite interested parties to comment 

on these preliminary review results and 

will issue the final review results no 

later than 120 days from the date of 

publication of this notice. 

EFFECTIVE DATE: May 10, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Irene Gorelik, AD/CVD Operations, 

Office 9, Import Administration, 

International Trade Administration, 

U.S. Department of Commerce, 14th 

Street and Constitution Avenue, NW, 

Washington, DC 20230; telephone: (202) 

482–6905. 

SUPPLEMENTARY INFORMATION: 

Background 

On August 28, 1986, the Department 

published in the Federal Register the 

antidumping duty order on petroleum 

wax candles from the PRC. See 

Antidumping Duty Order: Petroleum 

Wax Candles From the People’s 

Republic of China, 51 FR 30686 (August 

28, 1986) (‘‘Candles Order’’). 

On August 31, 2006, Deseado 

submitted a timely request for an 

administrative review. On September 

29, 2006, in response to Deseado’s 

request and in accordance with section 

751(a)(1) of the Tariff Act of 1930, as 

amended (the ‘‘Act’’), and section 

351.213(b) of the Department’s 

regulations, the Department initiated the 

eighth administrative review of 

petroleum wax candles from the PRC on 

14 companies.1 See Initiation of 

Antidumping and Countervailing Duty 

Administrative Reviews, 71 FR 57465 

(September 29, 2006). 

On October 12, 2006, the Department 

issued a Q&V questionnaire to Deseado 

and the other 13 companies upon which 

we initiated the review.2 On October 30, 

2006, the Department sent a letter to 

Deseado notifying the company of its 

failure to submit a Q&V questionnaire 

response by the deadline date.3 We 

provided Deseado with a new deadline 

of November 3, 2006, to submit a Q&V 

questionnaire response, which Deseado 

timely submitted. On December 7, 2006, 

the Department issued its standard non–

market economy (‘‘NME’’) questionnaire 

to Deseado. On January 4, 2007, 

Deseado submitted its section A 

response to the Department’s 

antidumping duty questionnaire.4 In its 

section A questionnaire response, 

Deseado informed the Department that 

it is a trading company/exporter of the 

merchandise under consideration with 

an unaffiliated manufacturer/supplier in 

the PRC.5

On January 8, 2007, the National 

Candle Association (‘‘Petitioner’’) 

submitted deficiency comments with 

respect to Deseado’s Separate Rates 

Application. On January 26, 2007, 

Petitioner submitted additional 

deficiency comments with respect to 

Deseado’s separate rates application and 

its section A response. 

On January 29, 2007, Deseado 

submitted the CBP 7501 entry 

summaries for its sales of subject 

merchandise to the United States, as 

requested by the Department, as well as 

its sections C and D questionnaire 

responses. On February 6, 2007, 

Petitioner submitted deficiency 

comments with respect to Deseado’s 

section C response. On February 16, 

2007, Petitioner submitted additional 

deficiency comments regarding 

Deseado’s section C response relative to 

Deseado’s submission of its CBP 7501 

entry summaries. On February 16, 2007, 

the Department issued a supplemental 

section A questionnaire to Deseado. On 

March 6, 2007, Deseado submitted its 

supplemental section A response. 

On March 8, 2007, the Department 

issued a letter to Deseado stating that, 

upon review of Deseado’s sections C 

and D questionnaire responses, Deseado 

had not provided any data that the 

Department could use to calculate an 

antidumping duty margin. The 

Department provided instructions 

within this letter for Deseado to correct 

its data deficiencies by March 19, 2007. 

On March 19, 2007, Deseado informed 

the Department that it was unable to 

provide the information requested by 

the Department in the March 8, 2007, 

letter.6 On April 3, 2007, Petitioner 

submitted a request to terminate the 

administrative review with respect to 

Deseado. On April 10, 2007, Deseado 

submitted a letter stating that because it 

was the only party to have requested the 

administrative review, Petitioner had no 

grounds upon which to request a 

termination of the administrative 

review. 

Period of Review 

The period of review (‘‘POR’’) covers 

August 1, 2005, through July 31, 2006. 

Scope of the Order 

The products covered by Candles 

Order are certain scented or unscented 

petroleum wax candles made from 

petroleum wax and having fiber or 

paper–cored wicks. They are sold in the 

following shapes: tapers, spirals, and 


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26596 Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Notices 

7On October 25, 2006, Nantucket Distributing 

Co., Inc., a U.S. importer, withdrew request for 

administrative reviews with respect to Sam Lick; on 

October 26, 2006, KingKing, withdrew its request 

for an administrative review; on October 25, 2006, 

Amstar withdrew its request for an administrative 

review; on October 26, 2007, Specialty Merchandise 

Corporation (≥SMC≥), a U.S. importer withdrew its 

request for administrative reviews with respect to 

Fuzhou, Gift, Maverick (and its producer Great), 

Shantou Jinyuan, Shen Hong (and its producer 

Changran), and Transfar; on November 22, 2006, 

SMC withdrew its request for administrative 

reviews with respect to Apex (and its producer, 

Golden). 

straight–sided dinner candles; round, 

columns, pillars, votives; and various 

wax–filled containers. The products 

were classified under the Tariff 

Schedules of the United States 

(‘‘TSUS’’) 755.25, Candles and Tapers. 

The product covered are currently 

classified under the Harmonized Tariff 

Schedule of the United States 

(‘‘HTSUS’’) item 3406.00.00. Although 

the HTSUS subheading is provided for 

convenience purposes, our written 

description remains dispositive. See 

Candles Order and Notice of Final 

Results of the Antidumping Duty New 

Shipper Review: Petroleum Wax 

Candles from the People’s Republic of 

China, 69 FR 77990 (December 29, 

2004). 

Partial Rescission of Administrative 

Review 

Pursuant to 19 CFR 351.213(d)(1), the 

Secretary must rescind an 

administrative review if a party 

requesting a review withdraws the 

request within ninety (90) days of the 

date of publication of the notice of 

initiation. As noted above, thirteen 

companies upon which the Department 

initiated an administrative review 

submitted timely withdrawals of their 

requests for review, in accordance with 

19 CFR 351.213(d)(1).7 No interested 

party provided any comments on the 

withdrawals. Therefore, because no 

other interested party requested a 

review of these companies, in 

accordance with 19 CFR 351.213(d)(1), 

and consistent with our practice, we are 

rescinding the administrative review of 

these thirteen companies for the POR. 

Non–Market Economy Country Status 

In every case conducted by the 

Department involving the PRC, the PRC 

has been treated as a NME country. 

Pursuant to section 771(18)(C)(i) of the 

Act, any determination that a foreign 

country is an NME country shall remain 

in effect until revoked by the 

administering authority. See Freshwater 

Crawfish Tail Meat from the People’s 

Republic of China: Notice of Final 

Results of Antidumping Duty 

Administrative Review, 71 FR 7013 

(February 10, 2006). None of the parties 

to this proceeding has contested such 

treatment. 

Separate Rates 

In proceedings involving NME 

countries, the Department begins with a 

rebuttable presumption that all 

companies within the country are 

subject to government control and thus 

should be assessed a single antidumping 

duty deposit rate (i.e., a PRC–wide rate). 

In its separate rates application, 

Deseado reported that it is owned 

wholly by an entity located and 

registered in a market–economy country 

(i.e., Hong Kong). Thus, because we 

have no evidence indicating that 

Deseado is under the control of the PRC 

government, a separate–rate analysis is 

not necessary to determine whether it is 

independent from government control. 

See Brake Rotors From the People’s 

Republic of China: Final Results and 

Partial Rescission of Fifth New Shipper 

Review, 66 FR 44331 (Aug. 23, 2001), 

results unchanged from Brake Rotors 

From the People’s Republic of China: 

Preliminary Results and Partial 

Rescission of Fifth New Shipper Review, 

66 FR 29080, 29081 (May 29, 2001) 

(where the respondent was wholly 

owned by a U.S. registered company); 

Brake Rotors From the People’s 

Republic of China: Final Results and 

Partial Rescission of Fourth New 

Shipper Review and Rescission of Third 

Antidumping Duty Administrative 

Review, 66 FR 27063 (May 16, 2001) 

(where the respondent was wholly 

owned by a company located in Hong 

Kong), results unchanged from Brake 

Rotors From the People’s Republic of 

China: Preliminary Results and Partial 

Rescission of the Fourth New Shipper 

Review and Rescission of the Third 

Antidumping Duty Administrative 

Review, 66 FR 1303, 1306 (January 8, 

2001); and Notice of Final 

Determination of Sales at Less Than 

Fair Value: Creatine Monohydrate from 

the People’s Republic of China, 64 FR 

71104, 71105 (Dec. 20, 1999) (‘‘Creatine 

from the PRC’’) (where the respondent 

was wholly owned by persons located 

in Hong Kong). 

Application of Adverse Facts Available 

As discussed further below, pursuant 

to sections 776(a)(2)(A), (B), and (C), 

and 776(b) of the Act, the Department 

preliminarily determines that the use of 

total adverse facts available is warranted 

for Deseado. Section 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 sections 782(c)(1) 

and (e) of the Act; (C) significantly 

impedes a proceeding; 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. 

Section 782(c)(1) of the Act provides 

that if an interested party ‘‘promptly 

after receiving a request from {the 

Department} for information, notifies 

{the Department} that such party is 

unable to submit the information 

requested in the requested form and 

manner, together with a full explanation 

and suggested alternative form in which 

such party is able to submit the 

information,’’ the Department may 

modify the requirements to avoid 

imposing an unreasonable burden on 

that party. 

Where the Department determines 

that a response to a request for 

information does not comply with the 

request, section 782(d) of the Act 

provides that the Department will so 

inform the party submitting the 

response and will, to the extent 

practicable, provide that party the 

opportunity to remedy or explain the 

deficiency. If the party fails to remedy 

the deficiency within the applicable 

time limits and subject to the 

requirements listed in section 782(e) of 

the Act, the Department may disregard 

all or part of the original and subsequent 

responses, as appropriate. Section 

782(e) of the Act provides that the 

Department ‘‘shall not decline to 

consider information that is submitted 

by an interested party and is necessary 

to the determination but does not meet 

all applicable requirements established 

by the administering authority’’ if the 

information is timely, can be verified, is 

not so incomplete that it cannot be used, 

and the interested party acted to the best 

of its ability in providing the 

information. Where all of these 

conditions are met, the statute requires 

the Department to use the information if 

it can do so without undue difficulties. 

Use of Facts Available 

We find that, pursuant to sections 

776(a)(2)(A), (B), and (C) of the Act, we 

should apply facts available to exports 

by Deseado because Deseado (1) failed 

to provide information requested by the 

Department; (2) failed to report in a 

timely manner information that was 

requested by the Department; and (3) 

significantly impeded the proceeding. 

As discussed above, the Department 

reviewed Deseado’s section C and D 

questionnaire responses, which should 

have contained detailed information 

regarding Deseado’s sales of subject 


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Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Notices 26597 

8See Deseado’s section C questionnaire response 

(‘‘SCQR’’) dated January 29, 2007, at C-9 through C11 and Exhibit C-1. 

9The control number (‘‘CONNUM’’) is assigned to 

each unique product reported in the sales database. 

Each identical product would be assigned the same 

CONNUM. However, products with physical 

variations require multiple CONNUMs assigned to 

it. The CONNUM methodology is based on the 

‘‘physical characteristics’’ of each unique product 

sold by Deseado, which is used to tie each unique 

product sold to the cost of materials, labor, energy 

and packing, i.e., the FOPs, to manufacture that 

unique product. Rather, Deseado provided the bar 

code numbers (‘‘SKU’’) numbers associated with the 

finished good rather than constructing a CONNUM 

for each unique product based in the physical 

characteristics of the merchandise. See SCQR at 8- 

9. The SKU numbers are not descriptive of the 

physical characteristics of the unique product. 

Thus, the Department could not compare the sale 

of the product with the FOPs used in manufacturing 

that product in the data submitted by Deseado as 

required by the dumping calculation. 

10See Deseado’s Section D questionnaire response 

dated January 29, 2007, at Exhibit D-1. The 

Department notes that Exhibit D-1, which Deseado 

referred to as the FOP database, is simply the FOP 

worksheet we include in the original questionnaire 

for respondents to provide information such as 

percentages of NME versus market economy 

purchases, supplier distance information, units of 

measurement, modes of transport, etc. 

11Consumption data consist of the POR 

consumption quantity of FOP inputs used to 

produce subject merchandise divided by the total 

POR production of subject merchandise. This 

methodology for calculating FOP consumption 

ratios is fully explained in the original Section D 

questionnaire. 

merchandise to the United States and 

factors of production (‘‘FOP’’) data, 

respectively. 

Deseado failed to provide accurate or 

complete information with respect to: 

(1) A sales reconciliation, as requested; 

(2) data fields in the sales database that 

are supposed to contain sale–specific 

data were instead populated with 

information other than numerical data, 

which renders the database unuseable; 

(3) payment data for each sale invoice 

amount of subject merchandise sold to 

the United States; and (4) inland freight, 

which was reported as an estimation of 

distance rather than an accurate 

reporting of inland freight distance for 

each sale to the United States.8

Consequently, the breadth of the 

deficient, incorrect, or missing data 

alone forced the Department to send its 

letter dated March 8, 2007, to enumerate 

the deficiencies and receive a response 

upon which we could conduct an 

accurate analysis of Deseado’s POR sales 

to the United States. As discussed 

below, the Department attempted to 

provide Deseado with an opportunity to 

remedy the deficiencies contained 

within its original section C response. 

In the March 8, 2007, letter to 

Deseado, the Department stated that 

Deseado’s sales data was unusable in 

the format in which it was submitted. 

Specifically, Deseado’s sales data 

included a control number assigned to 

each sale that did not contain any 

physical characteristics of the 

merchandise under consideration, as 

requested by the Department in its 

initial questionnaire.9 The Department’s 

March 8, 2007, letter provided the steps 

necessary for Deseado to reconstruct its 

CONNUM methodology into a format 

that is specific to the physical 

characteristics of the subject 

merchandise, which would reconcile to 

the FOPs used in manufacturing the 

merchandise. Moreover, the March 8, 

2007, letter also stated that the sales 

database must be formatted pursuant to 

the Department’s instructions in its 

initial questionnaire for use in the 

Department’s margin calculation. 

Deseado’s response in its March 19, 

2007, letter did not address any of the 

sales data deficiencies remarked upon 

in our March 8, 2007, letter. 

Additionally, in reviewing Deseado’s 

section D questionnaire response, which 

should have contained information and 

data related to FOPs and the cost 

portion of the merchandise under 

consideration, the Department found 

that Deseado entirely omitted the FOP 

database and narrative descriptions of 

the FOPs from the section D 

questionnaire response.10 Deseado did 

not provide any consumption data11 for 

the FOPs used to produce the subject 

merchandise, without which the 

Department is unable to construct a 

normal value (‘‘NV’’). FOP information 

is fundamental for calculating a 

dumping margin. Section 771(35)(A) of 

the Act requires that dumping margins 

are calculated by comparing the NV to 

the export price or constructed export 

price. For NME countries, the Act states 

that the NV is determined ‘‘on the basis 

of the value of the factors of production 

utilized in producing the merchandise.’’

See section 773(c)(1) of the Act. 

Deseado also failed to submit a cost 

reconciliation, as requested in the 

original questionnaire. The 

Department’s letter dated March 8, 

2007, also addressed Deseado’s 

omission of the entire FOP narrative and 

data, providing it an opportunity to 

remedy this deficiency as well. On 

March 19, 2007, Deseado provided a 

brief response with respect to the 

missing FOP data, stating that its 

supplier was uncooperative. Deseado 

did not provide any further detail 

regarding the failures of its supplier to 

provide FOP data. 

Therefore, pursuant to sections 

776(a)(2)(A) and (B) of the Act, the 

Department has determined that it is 

appropriate to apply the facts available 

to Deseado’s sales of subject 

merchandise to the United States during 

the POR because Deasado has failed to 

provide FOP information requested by 

the Department. Because the 

Department provided Deseado with an 

opportunity on March 8, 2007, to 

remedy the defects in its section D 

questionnaire response and Deseado 

failed to comply with the Department’s 

request for information, we find that the 

information Deaseado submitted is so 

incomplete that the Department’s 

reliance upon it would not result in an 

accurate measurement or reflection of 

Deseado’s selling practices. Therefore, 

we find that the curative provisions of 

sections 782(d) and (e) are not 

applicable. In addition, we find that 

Deseado’s statement that it is unable to 

provide its own sales data because it 

cannot obtain other information from its 

supplier does not satisfy the 

requirements of section 782(c)(1) of the 

Act. Deasado has neither demonstrated 

the steps it undertook to gather the 

information, nor demonstrated its 

supplier’s unwillingness to provide the 

information, nor suggested alternative or 

substitutable information for use in 

place of the missing FOP data. 

Therefore, as discussed above, we find 

that the application of facts available 

pursuant to sections 776(a)(2)(A) and (B) 

of the Act is warranted in calculating a 

margin for Deseado for these 

preliminary results. 

We also find, pursuant to section 

776(a)(2)(C) of the Act, that it 

appropriate to apply facts available to 

Deseado because its failure to respond 

to the Department’s questionnaires and 

its failure to provide complete FOP data 

significantly impeded the progress of 

this proceeding. Because Deseado has 

not provided its FOP data as requested 

by the Department, the Department 

cannot construct Deseado’s NV and, 

therefore, it cannot determine an 

accurate dumping margin for Deseado. 

In addition, the questionnaire responses 

that Deseado provided were so 

incomplete that they could not be used 

by the Department. Therefore, we find 

that the application of the facts available 

is also warranted, pursuant to section 

776(a)(2)(C), because Deseado’s actions 

significantly impeded the progress of 

this proceeding. 

Use of Adverse Inferences 

In selecting from among facts 

available, pursuant to section 776(b) of 

the Act, the Department may apply an 

adverse inference when it has 

determined that a respondent has 

‘‘failed to cooperate by not acting to the 

best of its ability to comply with a 

request for information.’’ An adverse 

inference may include reliance on 


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12See Cut-to-Length Carbon Steel Plate from the 

People’s Republic of China: Final Results and Final 

Partial Rescission of Antidumping Duty 

Administrative Review, 71 FR 75710 (December 18, 

2006), results unchanged from Cut-to-Length 

Carbon Steel Plate from the People’s Republic of 

China: Notice of Rescission, In Part, and 

Preliminary Results of Antidumping Duty 

Administrative Review, 71 FR 45768, 45771 (August 

10, 2006) (where the Department stated that 

‘‘...these deficiencies in the revised response, in 

view of the Department’s detailed instructions and 

guidance, indicate that Liaoning Company did not 

act to the best of its ability in providing the 

requested information’’); see also Final Results of 

Antidumping Administrative Review: Foundry Coke 

From the People’s Republic of China, 69 FR 4108 

(January 28, 2004), results unchanged from Notice 

of Preliminary Results of Antidumping Duty 

Administrative Review: Foundry Coke from the 

People’s Republic of China, 68 FR 57869, 57873 

(October 7, 2003). 

information derived from (1) the 

petition; (2) a final determination in the 

investigation under this title; (3) any 

previous review under section 751 of 

the Act or determination under section 

753 of the Act, or (4) any other 

information on the record. See section 

776(b) of the Act. 

Congress has noted that 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 

accompanying the URAA, H.R. Doc. No. 

103–316, Vol. 1 at 870 (1994) (‘‘SAA’’); 

Mannesmannrohren–Werke AG v. 

United States, 77 F. Supp. 2d 1302 (CIT 

1999). The Court of Appeals for the 

Federal Circuit (‘‘the Federal Circuit’’) 

in Nippon Steel Corporation v. United 

States, 337 F. 3d 1373, 1382 (Fed. Cir. 

2003) (‘‘Nippon’’), provided an 

explanation of the ‘‘failure to act to the 

best of its ability’’ standard, stating that 

the ordinary meaning of ‘‘best’’ means 

‘‘one’s maximum effort,’’ and that the 

statutory mandate that a respondent act 

to the ‘‘best of its ability’’ requires the 

respondent to do the maximum it is able 

to do. Id. The Federal Circuit 

acknowledged, however, that 

‘‘deliberate concealment or inaccurate 

reporting’’ would certainly be sufficient 

to find that a respondent did not act to 

the best of its ability, although it 

indicated that inadequate responses to 

agency inquiries ‘‘would suffice’’ as 

well. Id. Compliance with the ‘‘best of 

the ability’’ standard is determined by 

assessing whether a respondent has put 

forth its maximum effort to provide the 

Department with full an complete 

answers to all inquiries in an 

investigation. Id. The Federal Circuit 

further noted that while the standard 

does not require perfection and 

recognizes that mistakes sometimes 

occur, it does not condone 

inattentiveness, carelessness, or 

inadequate record keeping. Id. 

As discussed above, we determine 

that, within the meaning of section 

776(b) of the Act, Deseado failed to 

cooperate by not acting to the best of its 

ability to comply with the Department’s 

multiple requests for information and 

significantly impeded this proceeding, 

and that the application of adverse facts 

otherwise available (‘‘AFA’’) is 

warranted.12 The Department finds that 

Deseado failed to cooperate to the best 

of its ability because it did not respond 

accurately to the Department’s questions 

on such basic information as payment 

received for its POR sales. Furthermore, 

Deseado provided an unuseable 

CONNUM to compare sales to FOPs, did 

not provide sales or cost reconciliations, 

and omitted an entire database and 

narrative description of production data 

consumption for the POR. The 

information requested by the 

Department can only be supplied by 

Deseado and cannot be obtained from 

any other sources. Without this 

information, the Department cannot 

calculate a dumping margin for 

Deseado. Therefore, the Department 

finds that, by not providing the 

necessary responses to the 

questionnaires issued by the 

Department, Deseado has failed to 

cooperate to the best of its ability. 

First, because this is an NME 

proceeding, it is necessary that the 

Department have valid FOP information 

in order to calculate the NV, as stated 

above. In cases such as this, when we 

are precluded from reviewing the FOPs 

of the suppliers, and absent any FOP 

information provided, the Department 

cannot simply create or postulate the 

costs of the uncooperative suppliers. 

Additionally, the Department has no 

other FOP information on the record. 

Because Deseado and its supplier have 

failed to provide FOP information for 

this administrative review, the 

Department cannot properly calculate a 

dumping margin in accordance with 

section 773(c)(1) of the Act. See Tapered 

Roller Bearings and Parts Thereof, 

Finished and Unfinished, From the 

People’s Republic of China; Final 

Results of 1997–998 Antidumping Duty 

Administrative Review and Final 

Results of New Shipper Review, 64 FR 

61837, 61846 (November 15, 1999) 

(‘‘TRBs–11’’); see also Freshwater 

Crawfish Tail Meat from the People’s 

Republic of China; Notice of Final 

Results of Antidumping Duty 

Administrative Review, 68 FR 19504 

(April 21, 2003), and accompanying 

Issues and Decision Memorandum, 

Comment 7 (‘‘Crawfish’’). Thus, the 

Department finds that Deseado and its 

supplier have not acted to the best of 

their ability. 

Second, Deseado and its supplier 

have failed to provided any explanation 

why they were unable provide the FOP 

information, nor did they offer any 

alternative forms by which they might 

be able to comply with the Department’s 

requests. As the Federal Circuit has 

held, a respondent must ‘‘put forth its 

maximum efforts’’ in complying with 

the Department’s requests. See Nippon, 

337 F.3d at 1382. 

Additionally, it has been the 

Department practice to apply adverse 

facts available when a respondent has 

failed to provide convincing evidence 

‘‘claiming that their suppliers cannot 

supply requested factors of production 

information.’’ See Creatine from the 

PRC, 64 FR at 71108 (applying adverse 

facts available because the respondent 

did not provide an acceptable 

explanation on the record for its 

suppliers failure to provide the FOP 

information); see also TRBs–11, 64 FR at 

61846 (finding that the respondent did 

not act to the best of its ability when it 

was unable to provide letters from 

unrelated suppliers stating their 

unwillingness to supply factors of 

production information); see also Notice 

of Fresh Garlic From the People’s 

Republic of China: Final Results of 

Antidumping Duty New Shipper Review, 

68 FR 36767, 36768 (June 19, 2003) 

(‘‘Garlic’’) (applying adverse facts 

available when a supplier stated that it 

was unwilling to provide details on its 

production process or its FOPs; and the 

respondent did not provide an 

explanation as to why it or its supplier 

could not provide the FOP information); 

see also Notice of Certain Cased Pencils 

from the People’s Republic of China; 

Final Results and Partial Rescission of 

Antidumping Duty Administrative 

Review, 67 FR 48612 (July 25, 2002), 

and accompanying Issues and Decision 

Memorandum, at Comment 10 (finding 

that there was no acceptable 

explanation on the record for the 

supplier’s failure to provide factor of 

production information, an adverse 

inference in applying facts available was 

warranted due to the supplier’s failure 

to act to the best of its ability). 

Although Deseado claimed that it 

attempted to obtain the information 

from its supplier, it is ultimately 

Deseado’s responsibility for submitting 

accurate FOP information, as it is the 

party that is seeking the rate based on 

the FOP information and it is more 

readily available to them, and any 

‘‘failures, even if made by a supplier, 

may provide grounds for the application 

of adverse facts available.’’ See 


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Crawfish, 68 FR at 19504; see also 

Garlic, 68 FR at 36768. 

Therefore, pursuant to section 776(b) 

of the Act, we are preliminarily 

applying the AFA rate to Deseado’s 

sales of subject merchandise to the 

United States during the POR. In the 

instant proceeding, we find it 

appropriate to use an inference that is 

adverse to the interests of Deseado in 

selecting from among the facts 

otherwise available because Deseado 

failed to comply with the Department’s 

request for sales and cost data required 

in the original questionnaire and its 

subsequent failure to provide corrected 

data upon the second opportunity to do 

so, despite the Department’s specific 

and detailed explanations within the 

March 8, 2007, letter. See, e.g. Final 

Determination of Sales at Less Than 

Fair Value: Certain Activated Carbon 

from the People’s Republic of China, 72 

FR 9508 (March 2, 2007) and 

accompanying Issues and Decision 

Memorandum at Comment 27 (where 

‘‘the Department found that Jilin Bright 

Future failed to cooperate to the best of 

its ability to comply with the 

Department’s request for information’’). 

Deseado failed to provide the 

Department with complete or revised 

responses during this administrative 

review and the application of total AFA 

in this case is appropriate because it 

should not be rewarded for its 

noncompliance. See, e.g., Ta Chen 

Stainless Steel Pipe, Inc. v. United 

States, 298 F.3d 1330, 1340 (Fed. Cir. 

2002). Accordingly, we are applying as 

AFA the rate of 108.3 percent, the 

highest calculated rate from any 

segment of this proceeding. See the 

‘‘Corroboration’’ section below for a 

discussion of the probative value of the 

108.30 percent rate. 

Corroboration 

Section 776(c) of the Act provides 

that, when the Department relies on 

secondary information rather than on 

information obtained in the course of an 

investigation or review, it shall, to the 

extent practicable, corroborate that 

information from independent sources 

that are reasonably at its disposal. As 

described in the SAA, it is the 

Department’s practice to use secondary 

information from the petition, the final 

determination, or any previous review 

under section 751 concerning the 

subject merchandise. See SAA at 870. 

The Department will satisfy itself that 

the secondary information has probative 

value and, to the extent practicable, will 

examine the reliability and relevance of 

the information to be used. 

The AFA rate being assigned to 

Deseado (108.30 percent) is the highest 

calculated rate determined in any 

segment of this proceeding (the 2001–

2002 administrative review). See 

Amended Notice of Final Results of the 

Antidumping Duty Administrative 

Review: Petroleum Wax Candles from 

the People’s Republic of China 

(‘‘Amended Final’’) 69 FR 20858 (April 

19, 2004). This rate was corroborated in 

the most recently completed new 

shipper review subsequent to the 

Amended Final. See Notice of Final 

Results of the Antidumping Duty New 

Shipper Review: Petroleum Wax 

Candles from the People’s Republic of 

China (‘‘2002–2003 New Shipper 

Review’’) 69 FR 77990 (December 29, 

2004). Furthermore, no information has 

been presented in the current review 

that calls into question the reliability of 

this information. We note that this is the 

highest rate from any segment of the 

proceeding and the rate is less than four 

years old. Thus, the Department finds 

that the information continues to be 

reliable. 

With respect to the relevance aspect 

of corroboration, the Department will 

consider information reasonably at its 

disposal to determine whether a margin 

continues to have relevance. Where 

circumstances indicate that the selected 

margin is not appropriate as AFA, the 

Department will disregard the margin 

and determine an appropriate margin. 

For example, in Fresh Cut Flowers from 

Mexico: Final Results of Antidumping 

Administrative Review, 61 FR 6812 at 

Comment 4 (February 22, 1996), the 

Department disregarded the highest 

margin in that case as adverse best 

information available (the predecessor 

to ‘‘facts available’’) because the margin 

was based on another company’s 

uncharacteristic business expense 

resulting in an unusually high margin. 

Similarly, the Department does not 

apply a margin that has been judicially 

invalidated. See D&L Supply Co. v. 

United States, 113 F.3d 1220, 1221 (Fed. 

Cir. 1997) (the Department will not use 

a margin that has been judicially 

invalidated). The information used in 

calculating this margin was based on 

sales and production data submitted by 

the respondents in the 2001–2002 

administrative review, together with the 

most appropriate surrogate value 

information available to the Department, 

chosen from submissions by the parties 

in the 2001–2002 administrative review, 

as well as gathered by the Department 

itself. Furthermore, the calculation of 

this margin was subject to comment 

from interested parties in the 

proceeding. Moreover, as there is no 

information on the record of this review 

that demonstrates that this rate is not 

appropriately used as AFA, we 

determine that this rate has relevance. 

Based on our analysis, we find that 

the margin of 108.30 percent is reliable 

and has relevance. As the rate is both 

reliable and relevant, we determine that 

it has probative value. Accordingly, we 

determine that the calculated rate of 

108.30 percent, which is the current 

PRC–wide rate, is in accordance with 

the requirement of section 776(c) of the 

Act that secondary information be 

corroborated (that it have probative 

value). Consequently, we have assigned 

this AFA rate to exports of the subject 

merchandise from Deseado. 

Preliminary Results of Review 

We preliminarily determine that the 

following margin exists during the 

period August 1, 2005, through July 31, 

2006: 

PETROLEUM WAX CANDLES FROM THE

PRC 

Manufacturer/Exporter Weighted–Average 

Margin (Percent) 

Deseado Industrial Co., 

Ltd. ............................ 108.30 

Public Comment 

The Department will disclose to 

parties of this proceeding the 

information utilized in reaching the 

preliminary results within ten days of 

the date of announcement of the 

preliminary results. An interested party 

may request a hearing within 30 days of 

publication of the preliminary results. 

See 19 CFR 351.310(c). Interested 

parties may submit written comments 

(case briefs) within 30 days of 

publication of the preliminary results 

and rebuttal comments (rebuttal briefs), 

which must be limited to issues raised 

in the case briefs, within five days after 

the time limit for filing case briefs. See 

19 CFR 351.309(c)(1)(ii) and 19 CFR 

351.309(d). Parties who submit 

arguments are requested to submit with 

the argument: (1) A statement of the 

issue; (2) a brief summary of the 

argument; and (3) a table of authorities. 

Further, the Department requests that 

parties submitting written comments 

provide the Department with a diskette 

containing the public version of those 

comments. Unless the deadline is 

extended pursuant to section 

751(a)(3)(A) of the Act, the Department 

will issue the final results of this 

administrative review, including the 

results of our analysis of the issues 

raised by the parties in their comments, 

within 120 days of publication of the 

preliminary results. The assessment of 

antidumping duties on entries of 


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26600 Federal Register / Vol. 72, No. 90 / Thursday, May 10, 2007 / Notices 

merchandise covered by this review and 

future deposits of estimated duties shall 

be based on the final results of this 

review. 

Assessment Rates 

Upon issuance of the final results, the 

Department will determine, and CBP 

shall assess, antidumping duties on all 

appropriate entries. The Department 

intends to issue assessment instructions 

to CBP 15 days after the date of 

publication of the final results of 

review. If these preliminary results are 

adopted in our final results of review, 

the Department shall determine, and 

CBP shall assess, antidumping duties on 

all appropriate entries. Pursuant to 19 

CFR 351.212(b)(1), we will calculate 

importer–specific (or customer) ad 

valorem duty assessment rates based on 

the ratio of the total amount of the 

dumping margins calculated for the 

examined sales to the total entered 

value of those same sales. We will 

instruct CBP to assess antidumping 

duties on all appropriate entries covered 

by this review if any importer–specific 

assessment rate calculated in the final 

results of this review is above de 

minimis. 

Cash Deposit Requirements 

The following cash deposit 

requirements, when imposed, will be 

effective upon publication of the final 

results of this administrative review for 

all shipments of the subject 

merchandise entered, or withdrawn 

from warehouse, for consumption on or 

after the publication date, as provided 

for by section 751(a)(2)(C) of the Act: (1) 

For previously investigated or reviewed 

PRC and non–PRC exporters not listed 

above that have separate rates, the cash 

deposit rate will continue to be the 

exporter–specific rate published for the 

most recent period; (2) for all PRC 

exporters of subject merchandise which 

have not been found to be entitled to a 

separate rate, the cash deposit rate will 

be the PRC–wide rate of 108.30 percent; 

and (3) the cash deposit rate for all non–

PRC exporters (including Deseado) of 

subject merchandise which have not 

received their own rate, the cash deposit 

rate will be the rate applicable to the 

PRC exporters that supplied that non–

PRC exporter. These deposit 

requirements, when imposed, shall 

remain in effect until publication of the 

final results of the next administrative 

review. 

Notification to Importers 

This notice serves as a preliminary 

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. 

We are issuing and publishing this 

determination in accordance with 

sections 751(a)(1) and 777(i)(1) of the 

Act. 

Dated: May 2, 2007 

David A. Spooner, 

Assistant Secretary for Import 

Administration. 

[FR Doc. E7–9040 Filed 5–9–07; 8:45 am] 

BILLING CODE 3510–DS–S 

DEPARTMENT OF COMMERCE 

International Trade Administration 

[A–557–813] 

Polyethylene Retail Carrier Bags from 

Malaysia: Preliminary Results of 

Antidumping Duty Administrative 

Review 

AGENCY: Import Administration, 

International Trade Administration, 

Department of Commerce. 

SUMMARY: In response to a request from 

an interested party, the Department of 

Commerce (the Department) is 

conducting an administrative review of 

the antidumping duty order on 

polyethylene retail carrier bags (PRCBs) 

from Malaysia. The review covers one 

manufacturer/exporter. The period of 

review is August 1, 2005, through July 

31, 2006. We have preliminarily 

determined that sales have not been 

made below normal value by the 

company subject to this review. We 

invite interested parties to comment on 

these preliminary results. Parties who 

submit comments in this review are 

requested to submit with each argument 

a statement of each issue and a brief 

summary of the argument. 

EFFECTIVE DATE: May 10, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Yang Jin Chun or Richard Rimlinger, 

AD/CVD Operations, Office 5, Import 

Administration, International Trade 

Administration, U.S. Department of 

Commerce, 14th Street and Constitution 

Avenue, NW, Washington, DC 20230; 

telephone: (202) 482–5760 and (202) 

482–4477, respectively. 

SUPPLEMENTARY INFORMATION: 

Background 

On August 9, 2004, we published in 

the Federal Register the antidumping 

duty order on PRCBs from Malaysia. See 

Antidumping Duty Order: Polyethylene 

Retail Carrier Bags From Malaysia, 69 

FR 48203 (August 9, 2004). On August 

1, 2006, we published in the Federal 

Register a notice of opportunity to 

request an administrative review of the 

antidumping duty order on PRCBs from 

Malaysia. See Antidumping or 

Countervailing Duty Order, Findings, or 

Suspended Investigation; Opportunity 

to Request Administrative Review, 71 

FR 43441 (August 1, 2006). Pursuant to 

section 751(a) of the Tariff Act of 1930, 

as amended (the Act), and 19 CFR 

351.213(b), Euro Plastics Malaysia Sdn. 

Bhd. (Euro Plastics) requested an 

administrative review of the 

antidumping duty order on PRCBs from 

Malaysia on August 8, 2006. On 

September 29, 2006, in accordance with 

section 751(a) of the Act and 19 CFR 

351.221(c)(1)(i), we published a notice 

of initiation of administrative review of 

this order. See Initiation of 

Antidumping and Countervailing Duty 

Administrative Reviews, 71 FR 57465 

(September 29, 2006). We are 

conducting an administrative review of 

the order on PRCBs from Malaysia for 

Euro Plastics for the period August 1, 

2005, through July 31, 2006. 

Scope of Order 

The merchandise subject to this 

antidumping duty order is PRCBs which 

may be referred to as t–shirt sacks, 

merchandise bags, grocery bags, or 

checkout bags. The subject merchandise 

is defined as non–sealable sacks and 

bags with handles (including 

drawstrings), without zippers or integral 

extruded closures, with or without 

gussets, with or without printing, of 

polyethylene film having a thickness no 

greater than 0.035 inch (0.889 mm) and 

no less than 0.00035 inch (0.00889 mm), 

and with no length or width shorter 

than 6 inches (15.24 cm) or longer than 

40 inches (101.6 cm). The depth of the 

bag may be shorter than 6 inches but not 

longer than 40 inches (101.6 cm). 

PRCBs are typically provided without 

any consumer packaging and free of 

charge by retail establishments, e.g., 

grocery, drug, convenience, department, 

specialty retail, discount stores, and 

restaurants, to their customers to 

package and carry their purchased 

products. The scope of the order 

excludes (1) polyethylene bags that are 

not printed with logos or store names 

and that are closeable with drawstrings 

made of polyethylene film and (2) 

polyethylene bags that are packed in 

consumer packaging with printing that 

refers to specific end–uses other than 

packaging and carrying merchandise 

from retail establishments, e.g., garbage 

bags, lawn bags, trash–can liners. 


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