[Federal Register Volume 62, Number 172 (Friday, September 5, 1997)]
[Notices]
[Pages 46945-46947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-23606]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-570-827]


Notice of Preliminary Results and Partial Rescission of 
Antidumping Duty Administrative Review: Certain Cased Pencils From the 
People's Republic of China

AGENCY: Import Administration, International Trade Administration, 
Commerce.

SUMMARY: On December 31, 1996, the Department of Commerce (the 
Department) published a notice of initiation of an administrative 
review of the antidumping duty order on certain cased pencils from the 
People's Republic of China (PRC) covering the period of review of 
December 1, 1995 through November 30, 1996.
    The Department is now rescinding this review in part with respect 
to respondents who had no shipments of the subject merchandise during 
the period of review (POR) including Guangdong Provincial Stationery & 
Sporting Goods Import and Export Corporation (Guangdong), and China 
First Pencil Company, Ltd. (China First). We are basing our preliminary 
results on ``facts available'' (FA) for those companies that did not 
respond to our questionnaire.

EFFECTIVE DATE: September 5, 1997.

FOR FURTHER INFORMATION CONTACT:
Jack Dulberger or Irene Darzenta, Antidumping/Countervailing Duty 
Enforcement Group II, Office Four, Import Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, N.W., 
Washington, D.C. 20230, telephone (202) 482-5505 and 482-6320, 
respectively.
    The Applicable Statute: Unless otherwise indicated, all citations 
to the Tariff Act of 1930, as amended (the Act), are references to the 
provisions effective January 1, 1995, the effective date of the 
amendments made to the Act by the Uruguay Round Agreements Act (URAA). 
In addition, unless otherwise indicated, all citations to the 
Department's regulations are to the regulations set forth at 19 CFR 
part 353 (April 1997).

Supplementary Information:

Period of Review

    The period of review (POR) is December 1, 1995 through November 30, 
1996.

Scope of the Review

    The products covered by this review are certain cased pencils of 
any shape or dimension which are writing and/or drawing instruments 
that feature cores of graphite or other materials encased in wood and/
or man-made materials, whether or not tipped (e.g., with erasers, etc.) 
in any fashion, and either sharpened or unsharpened. The pencils 
subject to this review are classified under subheading 9609.10.00 of 
the Harmonized Tariff Schedule of the United States (``HTSUS''). 
Specifically excluded from the scope of this review are mechanical 
pencils, cosmetic pencils, pens, non-case crayons (wax), pastels, 
charcoals, and chalks. Although the HTSUS subheading is provided for 
convenience and customs purposes, our written description of the scope 
of the review is dispositive.

Background

    On December 28, 1994, we published an antidumping duty order (59 FR 
66909) which stated that imports of the two producer/exporter 
combinations identified in the LTFV investigation had margins of zero. 
We stated in the antidumping duty order that we would exclude from the 
order imports of subject merchandise that are sold by ``either China 
First or Guangdong and manufactured by the producers whose factors 
formed the basis for the zero margin'' (59 FR at 66910). Those 
exporter/producer combinations were subsequently identified in the 
order as China First/China First and Guangdong/Shanghai Three Star 
Stationery Industry Corporation (Three Star).
    In response to our notice of opportunity to request administrative

[[Page 46946]]

review for this second POR, the petitioner, the Writing Instrument 
Manufacturers Association, Pencil Section (WIMA), requested, by letter 
dated December 31, 1996, that the Department conduct an administrative 
review of China First, Guangdong, and Three Star ``to determine whether 
merchandise purportedly produced and exported by the excluded 
combinations * * * was, in fact, produced or exported by a combination 
of companies that are subject to the order.'' (See Letter from WIMA to 
the Department, December 31, 1996 (WIMA Request Letter) at 2).
    On January 17, 1997, the Department published a notice of 
initiation of an administrative review of China First, Guangdong, Three 
Star, and approximately 93 other potential producers/exporters named by 
the petitioner in its review request covering the POR (62 FR 2647, 
January 17, 1997; as amended by 62 FR 12793, March 18, 1997). On 
February 27, 1997, we sent a questionnaire to the companies for which 
the petitioner requested a review, including China First, Guangdong, 
and Three Star, specifically stating that pencils produced and exported 
by the excluded company combinations are not subject merchandise.
    On March 13, 1997, China First and Guangdong requested that the 
Department terminate its review of these companies, arguing that they 
were excluded from the antidumping duty order. (See Letter from China 
First to the Department (March 13, 1997); see also Letter from 
Guangdong to the Department (March 13, 1997)). On March 26, 1997, the 
petitioner opposed respondents' request, arguing, first, that the two 
excluded exporters, China First and Guangdong, are only excluded from 
the antidumping order to the extent that they export merchandise 
produced by the companies whose factors formed the basis in the order 
for the zero margin (here, China First and Three Star, respectively) 
(see Letter from WIMA to the Department, March 26, 1997 at 2) and, 
secondly, that the Department had considered and rejected respondents' 
same arguments in the prior administrative review. (Id.) Respondents, 
on March 31, 1997, repeated their previous requests that the Department 
rescind the review. (See Letter China First to the Department (March 
31, 1997); see also Letter from Guangdong to the Department (March 31, 
1997)). At the same time, they responded to the Department's February 
27, 1997 questionnaire by stating that they had ``sold no subject 
merchandise to the United States'' during the POR. (Id. at 2). After 
due consideration, we decided that it was appropriate to continue our 
review of China First and Guangdong, concerning producers other than 
those specified in the order as excluded exporter/producer 
combinations, and denied their request to terminate this review with 
respect to these companies in their entirety. (For a complete 
discussion of the Department's decision, see Decision Memorandum on 
Request for Termination from Case Analyst to Holly Kuga, August 12, 
1997).

Rescission

    Subsequent to our decision not to terminate this review with 
respect to China First and Guangdong, we determined that during the 
POR, China First did not export pencils to the United States that were 
manufactured by producers other than China First, and that Guangdong 
did not export pencils to the United States that were manufactured by 
producers other than Three Star. In order to make our determination, we 
contacted the U.S. Customs Service (Customs) by electronic mail on July 
16, 1997. We later received a letter from Customs, on which we based 
our determination, confirming that no subject merchandise manufactured 
by producers other than China First or Three Star was shipped by the 
exporters China First and Guangdong, respectively, to the United States 
during the POR. (See Letter from Joan E. Sebenaler, Customs, to Tom 
Futtner, the Department (August 19, 1997) (Sebenaler Letter); see also 
Decision Memorandum on China First and Guangdong from Case Analyst to 
Holly Kuga, August 19, 1997.) Therefore, we rescind this review with 
respect to China First and Guangdong. See 19 CFR 351.213(d)(3), 62 FR 
27296 (May 19, 1997) (this citation to the new regulations, although 
not governing this review, is provided to explain the Department's 
current practice).
    In addition, Ideal Consolidators, Ltd. and Ideal Ocean Lines, 
(together, Ideal), identified themselves as freight forwarders and 
reported that they did not manufacture or make shipments of subject 
merchandise during the POR. As above, we contacted Customs by 
electronic mail and received written confirmation from Customs that 
Ideal made no shipments of subject merchandise during the POR. (See 
Sebenaler Letter; see also Decision Memorandum on Ideal Consolidators, 
Ltd. and Ideal Ocean Lines from Case Analyst to Holly Kuga, August 19, 
1997). Therefore, we also rescind this review with respect to Ideal.

Facts Available

    Section 776(a)(1) of the Act mandates that the Department use facts 
available (FA) if necessary information is not available on the record 
of an antidumping proceeding. In addition, section 776(a)(2) of the Act 
mandates that the Department use FA where an interested party or any 
other person: (A) Withholds information requested by the Department; 
(B) fails to provide requested information by the requested date or in 
the form and manner requested; (C) significantly impedes an antidumping 
proceeding; or (D) provides information that cannot be verified. In 
this case, all of the named respondents, other than those identified 
above, failed to respond to the Department's questionnaire. Where the 
Department must base the entire dumping margin for a respondent in an 
administrative review on FA because that respondent failed to 
cooperate, section 776(b) authorizes the Department to use an inference 
adverse to the interests of that respondent in choosing FA. Section 
776(b) also authorizes the Department to use as adverse FA information 
derived from the petition, the final determination in the 
investigation, a previous administrative review, or other information 
placed on the record.
    Information from prior proceedings constitutes secondary 
information. Section 776(c) of the Act provides that the Department 
shall, to the extent practicable, corroborate secondary information 
from independent sources reasonably at its disposal. The Statement of 
Administrative Action (SAA) (H. Doc. 316, 103d Cong., 2nd Sess. 870) 
provides that ``corroborate'' means that the Department will satisfy 
itself that the secondary information to be used has probative value. 
The SAA, at page 870, clarifies that the petition is ``secondary 
information.''
    For the preliminary results of this review, we determine it 
appropriate to use, as adverse FA, the petition rate (which was the 
basis for the PRC-wide rate in the LTFV investigation), as amended by 
our August 1995 remand, of 53.65 percent. This is consistent with our 
decision in the amended final results of the first administrative 
review of the order on certain cased pencils from the PRC. See Certain 
Cased Pencils From the People's Republic of China; Amended Final 
Results of Antidumping Duty Administrative Review, 62 FR 36491 (July 8, 
1997) (Amended Final). Further, we determined this rate to be 
corroborated based on our analysis in the previous segment of the 
proceeding (Amended Final, 62 FR at 36492). There

[[Page 46947]]

is no new information in the record of the instant proceeding to lead 
us to re-examine this issue.
    As noted above, not all exporters of certain cased pencils from the 
PRC responded to our questionnaire. Accordingly, we are applying a 
single dumping rate--the PRC-wide rate established in the Amended 
Final--to all exporters in the PRC (other than China First and 
Guangdong, as discussed above, and Shanghai Foreign Trade Corporation 
(SFTC), an exporter which was previously determined to be entitled to a 
separate rate but for which the petitioner did not request an 
administrative review), based on our presumption that those respondents 
who failed to respond and all other exporters who have not qualified 
for a separate rate constitute a single enterprise, and are under 
common control by the PRC government. (See, e.g., Final Determination 
of Sales at Less Than Fair Value; Persulfates from the People's 
Republic of China, 61 FR 68232, 68234 (December 27, 1996)). The 
weighted-average dumping margin is as follows:

------------------------------------------------------------------------
                                                 Weighted-average margin
        Manufacturer/producer/exporter                 percentage       
------------------------------------------------------------------------
PRC-wide Rate.................................                    53.65 
------------------------------------------------------------------------

    Parties to this proceeding may request disclosure within 5 days of 
the date of publication of this notice. Any interested party may 
request a hearing within 10 days of publication. Any hearing, if 
requested, will be held 44 days after the publication of this notice, 
or the first workday thereafter. Interested parties may submit case 
briefs within 30 days of the date of publication of this notice. 
Rebuttal briefs, which must be limited to issues raised in the case 
briefs, may be filed not later than 37 days after the date of 
publication. See section 353.38 of the Department's regulations. The 
Department will publish a notice of final results of this 
administrative review, which will include the results of its analysis 
of issues raised in any such comments not later than 120 days after the 
date of publication of these preliminary results.
    The Department shall determine, and Customs shall assess, 
antidumping duties on all appropriate entries. We intend to issue 
assessment instructions to Customs for the exporters subject to this 
review based on the dumping rate stated above. The Department will 
issue appraisement instructions directly to Customs.
    Further, the following deposit requirements will be effective upon 
publication of the final results of this administrative review for all 
shipments of certain cased pencils from the PRC entered, or withdrawn 
from warehouse, for consumption on or after the publication date, as 
provided for by section 751(a)(1) of the Act: (1) The cash deposit rate 
for all Chinese exporters, except for China First (with respect to 
exports of merchandise produced by China First), Guangdong (with 
respect to exports of merchandise produced by Three Star), and SFTC, 
will be the rate established in the final results of this review; and 
(2) for non-PRC exporters of subject merchandise from the PRC, the cash 
deposit rate will be the rate of their suppliers (i.e., the PRC-wide 
rate). These deposit requirements, when imposed, shall remain in effect 
until publication of the final results of the next administrative 
review.
    This notice serves as a preliminary reminder to importers of their 
responsibility under section 353.26 of the Department's regulations to 
file a certificate regarding the reimbursement of antidumping duties 
prior to liquidation of the relevant entries during this POR. Failure 
to comply with this requirement could result in the Secretary's 
presumption that reimbursement of antidumping duties occured and the 
subsequent assessment of double antidumping duties.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act (19 U.S.C. section 1675(a)(1)), section 
777(i) of the Act (19 U.S.C. section 1677f(i)), and 19 CFR 353.22.

    Dated: August 27, 1997.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 97-23606 Filed 9-4-97; 8:45 am]
BILLING CODE 3510-DS-M