[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Notices]
[Pages 1734-1735]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-750]



[[Page 1734]]

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

DEPARTMENT OF COMMERCE
[A-570-827]


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

AGENCY: Import Administration, International Trade Administration, 
Commerce.

ACTION: Notice of preliminary results and partial rescission of 
antidumping duty administrative review.

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

SUMMARY: On February 1, 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 December 21, 
1994 through November 30, 1995. 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, including Guangdong 
Provincial Stationery & Sporting Goods Import and Export Corporation 
(Guangdong), and China First Pencil Company, Ltd. (China First). We are 
basing the preliminary results on ``facts available'' for those 
companies that did not respond to our questionnaire.

EFFECTIVE DATE: January 13, 1997.

FOR FURTHER INFORMATION CONTACT: Paul Stolz or Thomas Futtner, Office 
of Antidumping Countervailing Duty Enforcement, Import Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue NW., 
Washington, D.C. 20230, telephone (202) 482-4474/3814.

Applicable Statute

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act), by the 
Uruguay Round Agreements Act (URAA). In addition, unless otherwise 
indicated, all citations to the Departments regulations are to the 
current regulations, as amended by the interim regulations published in 
the Federal Register on May 11, 1995 (60 FR 25130).

SUPPLEMENTARY INFORMATION:

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 decorated and 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 
investigation 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 this review is dispositive.

Background

    On November 8, 1994 the Department issued its final determination 
of sales at less-than-fair value (LTFV) on certain cased pencils from 
the PRC (59 FR 55625). In it, we calculated zero margins for certain 
producer/exporter combinations: China First/Company A and Guangdong/
Company B. China First/Any other manufacturer received a rate of 44.66 
percent (formerly called the all others rate, now the PRC rate) and 
Guangdong/Any other manufacturer also received a rate of 44.66 percent. 
We stated that, consistent with Jia Farn Manufacturing Co., Ltd. v. 
United States, 817 F.Supp. 969 (CIT 1993) (``Jia Farn''), we would 
exclude from the application of the order any imports of ``subject 
merchandise sold by the exporter and manufactured by that specific 
producer. Merchandise that is sold by the exporter but manufactured by 
other producers will be subject to the order * * *'' (59 FR at 55631). 
These exclusions based on exporter/producer combinations are consistent 
with 19 CFR 353.21(c).
    On December 28, 1994, we published an antidumping duty order (59 FR 
66909) that 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). In the final 
determination, we referred to the corresponding producers as Company A 
and Company B. Those producer/exporter combinations were subsequently 
identified in the order as China First/China First and Guangdong/Three 
Star Stationery.
    In response to our notice of opportunity to request administrative 
review, for this first administrative review, the petitioner (the 
Writing Instrument Manufacturers Association) requested by letter dated 
January 11, 1996 that the Department conduct an administrative review 
of China First and Guangdong ``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.'' On February 1, 1996, the Department published a 
notice of initiation of an administrative review of China First, 
Guangdong and 94 other potential producers/exporters named by the 
petitioner in its review request covering the period of review (POR) 
December 21, 1994, through November 30, 1995.
    On February 23, 1996, we sent a questionnaire to the companies for 
which the petitioner requested a review, including China First and 
Guangdong. In it, we specifically stated that pencils produced and 
exported by the excluded company combinations are not subject 
merchandise.

Rescission

    Pursuant to 19 CFR 351.213(d)(3) of the Department's proposed 
regulations (61 FR 7308, 7365; February 27, 1996), we have 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 
Guangdong did not export pencils to the United States that were 
manufactured by producers other than Three Star Stationery. We 
conducted on-site verification of this information in Shanghai and 
Guangzhou, China, from December 11, 1996, through December 13, 1996. We 
found no evidence of shipments of subject merchandise manufactured by 
producers other than China First or Three Star Stationery made by the 
exporters China First and Guangdong, respectively, to the United States 
during the POR. Therefore, we rescind this review with respect to China 
First and Guangdong. Furthermore, this review is also rescinded with 
respect to those respondents in this review, in addition to China First 
and Three Star Stationery, which reported that they made no shipments 
of subject merchandise during this POR, namely: (1) Tru Blue Products 
Ltd., (2) Onan Shipping Ltd., (3) Anhui Provincial Import & Export 
Corporation, (4) Aempac System Ltd., (5) The Merton Company Limited, 
(6) King Sun Company, (7) Shanghai Machinery & Equipment Import and 
Export Corporation, (8) China North Industries Tianjin Corporation, and 
(9) Panalpina, Inc.

[[Page 1735]]

Facts Available

    Shanghai Lansheng (Shanghai), an exporter and a named respondent in 
this review, and a respondent in the LTFV investigation, did not 
respond to the questionnaire issued in this review. Because of 
Shanghai's failure to provide a questionnaire response, the 
administrative record in this proceeding lacks information necessary to 
make an informed determination regarding Shanghai's separate rate 
status, and we preliminarily determine that Shanghai is no longer 
entitled to a separate rate. Further, because Shanghai and other named 
respondents did not respond to our questionnaire in this review, as 
adverse facts available, imports of subject merchandise from Shanghai 
and all other producers/exporters who have not qualified for a separate 
rate will be subject to the PRC rate of 44.66 percent, the highest rate 
established in the LTFV investigation.
    Section 776(a)(1) of the Act mandates that the Department use the 
facts available 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 the facts available 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, Shanghai and other 
named respondents 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 the facts available 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 the facts available. Section 776(b) also 
authorizes the Department to use as adverse facts available information 
derived from the petition, the final determination, a previous 
administrative review, or other information placed on the record. 
Because information from prior proceedings constitutes secondary 
information, section 776(c) provides that the Department shall, to the 
extent practicable, corroborate that 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,'' and that ``corroborate'' means to determine that the 
information has probative value. Id. During our analysis of the 
petition in the LTFV investigation, we reviewed all of the data 
submitted and the assumptions that petitioners had made when 
calculating estimated dumping margins. US purchase price (now export 
price) was based on multiple price quotes. The factors values for 
calculation of the foreign market value (now normal value) were based 
on public data, where available. However, as a result of our analysis, 
we recalculated the petition rates due to errors made by the petitioner 
in the calculation of paint costs, profit, and depreciation expenses. 
(See concurrence memorandum to file dated November 29, 1993.) We also 
rejected petitioner's methodology of using the cost of a finished core 
in our factors analysis, as this would have resulted in double counting 
of certain expenses included in the cost of a finished core. (See 
initiation notice, (58 FR 64548, December 8, 1993).) Thus, because we 
reviewed the petitioners assumptions and calculations from which the 
petition rates were derived, and made appropriate corrections, we 
determine that the petition rates, as corrected, have probative value.
    The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                               Weighted 
                                                               Average  
               Manufacturer/Producer/Exporter                   Margin  
                                                              Percentage
------------------------------------------------------------------------
PRC Rate...................................................        44.66
------------------------------------------------------------------------

    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 Sec. 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. The Department shall determine, 
and the Customs Service shall assess, antidumping duties on all 
appropriate entries. The Department will issue appraisement 
instructions directly to the Customs Service. Furthermore, the 
following deposit requirements will be effective upon publication of 
the final results of this administrative review for all shipments of 
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, 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 its supplier, i.e., the 
PRC 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 Sec. 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 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.
    This administrative review and notice are in accordance with 
section 751(a)(1) of the Act and Sec. 353.22 of the Department's 
regulations.

    Dated: January 2, 1997.
Robert S. La Russa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 97-750 Filed 1-10-97; 8:45 am]
BILLING CODE 3510-DS-P