[Federal Register Volume 73, Number 193 (Friday, October 3, 2008)]
[Notices]
[Pages 57591-57594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22715]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-894]


Certain Tissue Paper Products From the People's Republic of 
China: Affirmative Final Determination of Circumvention of the 
Antidumping Duty Order

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

Final Determination

    We determine that certain tissue paper products (``tissue paper'') 
produced by Vietnam Quijiang Paper Co., Ltd. (``Quijiang'') are 
circumventing the antidumping duty order on tissue paper from the 
People's Republic of China (``PRC''), as provided in section 781(b) of 
the Tariff Act of 1930, as amended (``the Act''). See Notice of Amended 
Final Determination of Sales at Less than Fair Value and Antidumping 
Duty Order: Certain Tissue Paper Products from the People's Republic of 
China, 70 FR 16223 (March 30, 2005) (``Order'').

DATES: Effective Date: October 3, 2008.

FOR FURTHER INFORMATION CONTACT: Julia Hancock, Office 9, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-1394.

SUPPLEMENTARY INFORMATION:

Background

    On April 22, 2008, the Department of Commerce (``the Department'') 
published in the Federal Register the affirmative preliminary 
determination that certain tissue paper products (``tissue paper'') 
produced by Quijiang are circumventing the Order on tissue paper from 
the People's Republic of China (``PRC''), as provided in section 781(b) 
of the Act. See Certain Tissue Paper Products From the People's 
Republic of China: Affirmative Preliminary Determination of 
Circumvention of the Antidumping Duty Order and Extension of Final 
Determination, 73 FR 21580 (April 22, 2008) (``Preliminary 
Determination''). Additionally, the Department published in the Federal 
Register a correction to its preliminary determination of circumvention 
on May 23, 2008. See Certain Tissue Paper Products From the People's 
Republic of China: Correction to Affirmative Preliminary Determination 
of Circumvention of the Antidumping Duty Order, 73 FR 30053

[[Page 57592]]

(May 23, 2008) (``Correction to Preliminary Determination'').
    On June 3, 2008, Petitioner \1\ filed its case brief. Quijiang did 
not file a case brief, but on June 5, 2008, Quijiang filed its rebuttal 
brief. Additionally, on June 24, 2008, the Department extended the 
final determination by 60 days to September 19, 2008. See Letter to All 
Interested Parties from Catherine Bertrand, Program Manager, Re: 
Circumvention Inquiry on Certain Tissue Paper Products from the 
People's Republic of China: Extension of Final Determination, (June 24, 
2008).
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    \1\ Seaman Paper Company of Massachusetts, Inc. (``Petitioner 
'').
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    On August 19, 2008, Petitioner submitted comments regarding 
Quijiang's participation in the third administrative review of this 
Order, which contained new factual information. Although Petitioner's 
comments were untimely, on August 27, 2008, the Department issued a 
letter to interested parties notifying them that it was accepting 
Petitioner's August 19, 2008, submission, pursuant to 19 CFR 351.302(b) 
and inviting comments from Quijiang and other interested parties. No 
comments were submitted.

Scope of the Antidumping Duty Order

    The tissue paper products subject to this order are cut-to-length 
sheets of tissue paper having a basis weight not exceeding 29 grams per 
square meter. Tissue paper products subject to this order may or may 
not be bleached, dye-colored, surface-colored, glazed, surface 
decorated or printed, sequined, crinkled, embossed, and/or die cut. The 
tissue paper subject to this order is in the form of cut-to-length 
sheets of tissue paper with a width equal to or greater than one-half 
(0.5) inch. Subject tissue paper may be flat or folded, and may be 
packaged by banding or wrapping with paper or film, by placing in 
plastic or film bags, and/or by placing in boxes for distribution and 
use by the ultimate consumer. Packages of tissue paper subject to this 
order may consist solely of tissue paper of one color and/or style, or 
may contain multiple colors and/or styles.
    The merchandise subject to this order does not have specific 
classification numbers assigned to them under the Harmonized Tariff 
Schedule of the United States (``HTSUS''). Subject merchandise may be 
under one or more of several different subheadings, including: 4802.30; 
4802.54; 4802.61; 4802.62; 4802.69; 4804.31.1000; 4804.31.2000; 
4804.31.4020; 4804.31.4040; 4804.31.6000; 4804.39; 4805.91.1090; 
4805.91.5000; 4805.91.7000; 4806.40; 4808.30; 4808.90; 4811.90; 
4823.90; 4820.50.00; 4802.90.00; 4805.91.90; 9505.90.40. The tariff 
classifications are provided for convenience and customs purposes; 
however, the written description of the scope of this order is 
dispositive.\2\
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    \2\ On January 30, 2007, at the direction of U.S. Customs and 
Border Protection (``CBP''), the Department added the following 
HTSUS classifications to the AD/CVD module for tissue paper: 
4802.54.3100, 4802.54.6100, and 4823.90.6700. However, we note that 
the six-digit classifications for these numbers were already listed 
in the scope.
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    Excluded from the scope of this order are the following tissue 
paper products: (1) Tissue paper products that are coated in wax, 
paraffin, or polymers, of a kind used in floral and food service 
applications; (2) tissue paper products that have been perforated, 
embossed, or die-cut to the shape of a toilet seat, i.e., disposable 
sanitary covers for toilet seats; (3) toilet or facial tissue stock, 
towel or napkin stock, paper of a kind used for household or sanitary 
purposes, cellulose wadding, and webs of cellulose fibers (HTSUS 
4803.00.20.00 and 4803.00.40.00).

Scope of the Circumvention Inquiry

    The products covered by this inquiry are jumbo rolls of tissue 
paper that are exported from the PRC to the Socialist Republic of 
Vietnam (``Vietnam'') where they are converted, possibly dyed and/or 
printed, into tissue paper products, as described above in the ``Scope 
of the Antidumping Duty Order'' section. This inquiry only covers such 
products that are exported to the United States by Quijiang.

Statutory Provisions Regarding Circumvention

    Section 781(b) of the Act provides that the Department may find 
circumvention of an antidumping duty order when merchandise of the same 
class or kind subject to the order is completed or assembled in a 
foreign country other than the country to which the order applies. In 
conducting circumvention inquiries under section 781(b) of the Act, the 
Department relies upon the following criteria: (A) Merchandise imported 
into the United States is of the same class or kind as any merchandise 
produced in a foreign country that is subject to an antidumping duty 
order; (B) before importation into the United States, such imported 
merchandise is completed or assembled in another foreign country from 
merchandise which is subject to the order or produced in the foreign 
country that is subject to the order; (C) the process of assembly or 
completion in the foreign country referred to in (B) is minor or 
insignificant; and (D) the value of the merchandise produced in the 
foreign country to which the antidumping duty order applies is a 
significant portion of the total value of the merchandise exported to 
the United States.
    Section 781(b)(2) of the Act provides the criteria for determining 
whether the process of assembly or completion is minor or 
insignificant. These criteria are:
    (a) The level of investment in the foreign country;
    (b) The level of research and development in the foreign country;
    (c) The nature of the production process in the foreign country;
    (d) The extent of the production facilities in the foreign country; 
and
    (e) Whether the value of the processing performed in the foreign 
country represents a small proportion of the value of the merchandise 
imported into the United States.
    The Statement of Administrative Action (``SAA'') accompanying the 
Uruguay Round Agreements Act, H. Doc. No. 103-316, at 893 (1994), 
provides some guidance with respect to these criteria. It explains that 
no single factor listed in section 781(b)(2) of the Act will be 
controlling. Accordingly, it is the Department's practice to evaluate 
each of the factors as they exist in the United States or foreign 
country depending on the particular circumvention scenario. Therefore, 
the importance of any one of the factors listed under section 781(b)(2) 
of the Act can vary from case to case depending on the particular 
circumstances unique to each circumvention inquiry.
    In this circumvention inquiry, for the final determination, we 
continued to base our analysis on both qualitative and quantitative 
factors in determining whether the process of converting the jumbo 
rolls in Vietnam was minor or insignificant, in accordance with the 
criteria of section 781(b)(2) of the Act. This approach is consistent 
with our analysis in prior circumvention inquiries. See Anti-
Circumvention Inquiry of the Antidumping and Countervailing Duty Orders 
on Certain Pasta From Italy: Affirmative Preliminary Determinations of 
Circumvention of Antidumping and Countervailing Duty Orders, 68 FR 
46571 (August 6, 2003) (``Pasta Circumvention Prelim'') (unchanged in 
Pasta Circumvention Final, 68 FR 54888).
    In making a determination whether to include merchandise assembled 
or completed in a foreign country within an order, section 781(b)(3) of 
the Act

[[Page 57593]]

instructs us to take into account such factors as: (A) The pattern of 
trade, including sourcing patterns; (B) whether affiliation exists 
between the exporter of the merchandise and the person who uses the 
merchandise to assemble or complete in the foreign country the 
merchandise that is sold in the United States; and (C) whether imports 
into the foreign country of the merchandise described in section 
781(b)(1)(B) have increased since the initiation of the original 
investigation. Each of these factors is examined below.
    For the final determination, we have continued to use the 
information gathered from the questionnaire responses submitted by 
Quijiang and its PRC parent company, Guilin Qifeng Paper Co., Ltd. 
(``Guilin Qifeng''), for purposes of conducting both qualitative and 
quantitative analyses in accordance with the criteria enumerated in 
section 781(b) of the Act as outlined above.

Summary of Statutory Analysis

    As discussed above, in order to make an affirmative final 
determination of circumvention, all the elements under sections 
781(b)(1) of the Act must be satisfied, taking into account the factors 
under section 781(b)(2). In addition, section 781(b)(3) of the Act 
instructs the Department to consider, in determining whether to include 
merchandise assembled or completed in a foreign country within the 
scope of an order, such factors as: pattern of trade, affiliation, and 
whether imports into the foreign country of the merchandise described 
in section 781(b)(1)(B) have increased after the initiation of the 
investigation. Because no party submitted comments regarding our 
circumvention analysis, pursuant to section 781(b)(1) of the Act, we 
continue to find that the merchandise sold in the United States is 
within the same class or kind of merchandise that is subject to the 
Order and was completed or assembled in a third country. See 
Preliminary Determination, 73 FR at 21582. Additionally, because no 
party submitted comments regarding our circumvention analysis, pursuant 
to section 781(b)(2), we continue to find that the process of assembly 
of the PRC-origin jumbo rolls to cut-to-length tissue paper by Quijiang 
is minor and insignificant. Id., at 21582-85. Furthermore, because no 
party submitted comments regarding our circumvention analysis, in 
accordance with sections 781(b)(1)(D) and 781(b)(1)(E) of the Act, we 
continue to find that the value of the merchandise produced in the PRC 
is a significant portion of the total value of the merchandise exported 
to the United States, see id. at 21584-85, and that action is 
appropriate to prevent evasion of the Order. Thus, we continue to find 
affirmative evidence of circumvention in accordance with sections 
781(b)(1) and (2) of the Act. Moreover, we continue to find the factors 
required by section 781(b)(3) of the Act indicate that there is 
circumvention of the Order. Consequently, our statutory analysis leads 
us to continue to find that during the period from July 2004 to July 
2006, Quijiang circumvented the Order as a result of its exports to the 
United States of PRC-origin jumbo rolls converted to cut-to-length 
tissue paper in Vietnam, as discussed above.

Facts Available

    Petitioner requested in its case brief that we apply total adverse 
facts available (``AFA'') to Quijiang for purposes of this final 
determination. Pursuant to section 776 of the Act, we find that the 
application of facts otherwise available is not warranted under 
sections 776(a)(1) or (2) of the Act because Quijiang submitted the 
requested information by the required deadlines, provided information 
in a timely manner and in the form or manner requested, and did not 
significantly impede this proceeding under the antidumping statute. 
Further, no verification took place of Quijiang's data because the 
Department chose not to conduct verification given the particular facts 
of this case, not because of any deficiency in Quijiang's responses. We 
disagree with Petitioner's contention that there is record evidence 
demonstrating that Quijiang's data is unreliable. In fact, we find that 
there is substantial evidence on the record demonstrating that 
Quijiang's statements and submitted data are reliable. Therefore, we 
find that, pursuant to sections 776(a)(1) and (2) of the Act, there is 
no basis for applying facts available, much less adverse facts 
available, to Quijiang for the final determination. For further 
discussion and greater detail on the Department's analysis on this 
issue, please see Comment 1 of the Memorandum to David M. Spooner, 
Assistant Secretary for Import Administration, from Stephen J. Claeys, 
Deputy Assistant Secretary for Import Administration, Subject: Issues 
and Decision Memorandum for the Final Determination of the 
Anticircumvention Inquiry of Certain Tissue Paper Products from the 
People's Republic of China (``PRC'') (``Issues and Decision Memo'').

Other Issues

    All issues raised by the interested parties to which we have 
responded are listed in the Appendix to this notice and addressed in 
the Issues and Decision Memo, which is hereby adopted by this notice.
    In its case brief, Petitioner raised an argument regarding the 
public ranging of the average value of the value added to the finished 
merchandise by Quijiang's processing. Because the publicly ranged 
average value is within ten percent of the actual figure, pursuant to 
section 351.304(c) of the Department's regulations, we find that we 
correctly ranged the average value of the value added to finished 
merchandise by Quijiang's processing. See Comment 2 of the Issues and 
Decision Memo.
    Petitioner also argued in its case brief that the record evidence 
shows that Quijiang, contrary to its own declarations, has continued to 
import semi-completed tissue paper products from the PRC after July 
2006. Petitioner therefore argued that the Department should cease its 
certification program and require suspension of liquidation of all 
Quijiang's imports of subject merchandise. However, we find that the 
only information on the record supporting Petitioner's claim is an 
affidavit from Petitioner's own market researcher. Absent import or 
other such documentation, we do not believe the substantial evidence on 
the record supports Petitioner's allegation that Quijiang has continued 
to import PRC-semi completed tissue paper products that were converted 
into finished merchandise and exported to the United States beyond July 
2006. Accordingly, because Quijiang sourced jumbo rolls from a PRC 
supplier to produce tissue paper products, which were exported to the 
United States, we continue to find that circumvention occured between 
July 2004 and July 2006 in this final determination. With respect to 
Quijiang's current U.S. exports, we have determined that the 
certification program remains appropriate for Quijiang's exports to the 
United States of tissue paper products produced from Vietnamese-origin 
paper. For further discussion of this issue, please see Comments 1 and 
3 of the Issues and Decision Memo.
    Parties can find a complete discussion of the issues raised in this 
inquiry and corresponding recommendation in this public memorandum, 
which are on file in the Central Records Unit (``CRU''), Room 1117 of 
the main Department of Commerce building. In addition, a complete 
version of the Issues and Decision Memo can be accessed directly on the 
internet at http://ia.ita.doc.gov/. The paper copy and electronic 
version

[[Page 57594]]

of the Issues and Decision Memo are identical in content.

Continuation of Suspension of Liquidation

    In accordance with section 733(d) of the Act, the Department will 
continue to direct CBP to suspend liquidation and to require a cash 
deposit of estimated duties, at the PRC-wide rate of 112.64 percent, on 
all unliquidated entries of certain tissue paper products produced by 
Quijiang that were entered, or withdrawn from warehouse, for 
consumption, from on or after September 5, 2006, the date of initiation 
of the circumvention inquiry, with the exception described below.
    For all entries of Quijiang's tissue paper products for which the 
U.S. importer submits a certification from Quijiang that the 
merchandise is non-subject, (i.e., of Vietnamese-origin and not 
produced using PRC-origin jumbo rolls), the Department will continue to 
direct CBP to liquidate those entries without regard to antidumping 
duties. For further discussion of this issue, please see Comment 2 of 
the Issues and Decision Memo. The Department will not request that CBP 
suspend liquidation, or require a cash deposit of estimated duties at 
the PRC-wide rate, for any entries of tissue paper accompanied by the 
certification in Appendix II of this notice. However, the Department 
will direct CBP to suspend liquidation and to require a cash deposit of 
estimated duties, at the PRC-wide rate of 112.64 percent, for any 
entries of tissue paper not accompanied by this certification in 
Appendix II of this notice.

Concurrent and Future Administrative Reviews

    Because we have reached a final affirmative determination of 
circumvention, as stipulated in the Preliminary Determination, 73 FR at 
21587, with respect to Quijiang, we are expanding the period of review 
for the third administrative review, initiated on April 25, 2008 date, 
back to September 5, 2006, the date of initiation of the circumvention 
inquiry, to include all of Quijiang's entries covered by this 
determination. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Request for Revocation in Part, 73 FR 22337, 
(April 25, 2008). In concordance with this finding of circumvention, 
the review period of that segment of the proceeding will be expanded as 
of the date of issuance of this final determination with respect to 
Quijiang's entries. In accordance with the certifications provided to 
CBP by Quijiang, all certified entries are subject to verification by 
the Department, including those that entered into the United States 
during the expanded third administrative review. In conducting a review 
of these certified entries, the Department will examine all records 
Quijiang maintains in its normal course of business supporting its 
certifications that no PRC-origin jumbo rolls were used in the 
production of Vietnamese-origin tissue paper products. Consistent with 
the terms of the certifications submitted by Quijiang, if Quijiang 
elects not to participate in the administrative review or does not 
consent to verification of these certified entries, we will immediately 
revoke the certification program and instruct CBP to suspend 
liquidation and collect cash deposits at the PRC-wide rate of 112.64 
percent on all of Quijiang's entries of tissue paper, regardless of 
country of origin.

Notice to Parties

    This notice also serves as the only reminder to parties subject to 
the administrative protective orders (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with section 351.305 of the 
Department's regulations. Timely written notification of the return/
destruction of APO materials or conversion to judicial protective order 
is hereby requested. Failure to comply with the regulations and terms 
of an APO is a violation which is subject to sanction.
    This affirmative final circumvention determination is published in 
accordance with section 781(b) of the Act and 19 CFR 351.225.

    Dated: September 19, 2008.
David M. Spooner,
Assistant Secretary for Import Administration.

Appendix I

Discussion of the Issues

Comment 1: Total Adverse Facts Available (``AFA'') for Quijiang
Comment 2: Clerical Error in Value-Added Calculation
Comment 3: Cash Deposits and Suspension of Liquidation

Appendix II

Certification of Vietnam Quijiang Paper Co., Ltd.
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Certification to U.S. Customs and Border Protection

    1. Vietnam Quijiang Paper Co., Ltd. (``Vietnam Quijiang'') 
hereby certifies that the certain tissue paper products being 
exported and subject to this certification were not produced from 
Chinese origin jumbo rolls.
    2. By signing this certificate, Vietnam Quijiang also hereby 
agrees to maintain sufficient documentation supporting the above 
statement such as country of origin certificates for all jumbo rolls 
used to process the exported certain tissue paper products. Further, 
Vietnam Quijiang agrees to submit to verification of the underlying 
documentation supporting the above statement. Vietnam Quijiang 
agrees that failure to submit to verification of the documentation 
supporting these statements will result in immediate revocation of 
certification rights and that Vietnam Quijiang will be required to 
post a cash deposit equal to the China-wide entity rate on all 
entries of certain tissue paper products. In addition, if the 
Department of Commerce identifies any misrepresentation or 
inconsistencies regarding the certifications, Vietnam Quijiang 
recognizes that the matter may be reported to the U.S. Customs and 
Border Protection by the Department for possible enforcement action.

Signature:

Printed Name:

Title:

[FR Doc. E8-22715 Filed 10-2-08; 8:45 am]
BILLING CODE 3510-DS-P