Certain Cased Pencils From the People's Republic of China; Amended Final Results of Antidumping Duty Administrative Review

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-827]

Certain Cased Pencils From the People's Republic of China;

Amended Final Results of Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration,

Commerce.

ACTION: Notice of amended final results of antidumping duty

administrative review; Certain cased pencils from the People's Republic

of China.

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SUMMARY: On January 13, 1997, the Department of Commerce (the

Department) published the preliminary results and partial rescission of

an administrative review of the antidumping duty order on certain cased

pencils (pencils) from the People's Republic of China (PRC) covering

the period of December 21, 1994, through November 30, 1995 (62 FR

1734). We gave interested parties an opportunity to comment on our

preliminary results. On May 6, 1997, we published final results in this

review and erroneously stated therein that we had received no comments

(62 FR 24636). Subsequent to issuance of the final results, it was

discovered that, in fact, a timely case brief had been submitted by the

petitioner, the Pencil Section of the Writing Instrument Manufacturers

Association and the domestic producers of pencils. No comments were

filed by respondents or other interested parties. Therefore, we are

amending the final results of this review to address these comments.

This amendment to the final results changes the PRC-wide dumping margin

from 44.66 percent to 53.65 percent for this period.

EFFECTIVE DATE: July 8, 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, DC 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 Department's regulations are to the

regulations set forth at 19 CFR 353.1, et seq., 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

The antidumping duty order on pencils from the PRC was published in

the Federal Register on December 28, 1994 (59 FR 66909). On January 13,

1997, the Department published in the Federal Register the preliminary

results and partial rescission of its review of this order for the

December 21, 1994 through November 30, 1995 period of review (POR) (62

FR 1734). On April 30, 1997 the Department issued final results for

this review (62 FR 24636). On May 1, 1997, it was discovered that the

petitioner had submitted comments on the preliminary results which were

not considered by the Department in arriving at its final results.

Therefore, pursuant to section 735(e) of the Act and 19 CFR 353.28(c)

the Department is amending the final results of this review to correct

for this ministerial error by addressing the petitioner's comments.

Analysis of Comments Received

Comment 1: Petitioner argues that the recalculated petition rate of

44.66 percent (the PRC-wide rate from the less-than-fair value (LTFV)

investigation) used in the preliminary results lacks probative value

and should not be used as facts available to set the PRC-wide rate in

the instant review. Petitioner argues that, although the Department

properly resorted to facts available to set the PRC country-wide rate

in this review, the Department has repudiated the recalculated petition

rate of 44.66 percent pursuant to a voluntary remand determination in a

pending action in the United States Court of International Trade (CIT),

Writing Instrument Manufacturers Association et al. v. United States,

Court No. 95-01-00081 (Writing Instruments). Petitioner argues that

because the Department itself repudiated the 44.66 percent rate, this

rate lacks probative value. Petitioner argues that the Department

should rely instead on the rate of 53.65 percent, submitted as the

recalculated petition rate to the court under the voluntary remand, as

facts available. Petitioner argues that the Department itself views

this rate, although as yet unaffirmed by the court, to be more

accurate, i.e., affording proof or evidence of the issue, and thus

having probative value.

Department Position: We agree with the petitioner that the 53.65

percent rate submitted to the CIT pursuant to the voluntary remand has

more probative value for use as facts available than the recalculated

petition rate of 44.66 percent.

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, certain named

respondents failed to respond to the Department's questionnaire. Where

the Department must rely on the facts otherwise available because a

respondent failed to cooperate to the best of its ability in responding

to a request for information, section 776(b) authorizes the Department

to make 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 in the investigation, 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. See also, Statement of

Administrative Action (SAA) (H. Doc. 316, 103d Cong., 2nd

[[Page 36492]]

Sess. 870), providing 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.''

In August 1995, we requested that the CIT remand to us the two

issues of : (1) Basswood prices; and (2) valuation of slats and logs.

In performing the remand, the recalculated petition rate of 44.66

percent was changed to 53.65 percent. Consistent with a recent ruling

by the U.S. Court of Appeals for the Federal Circuit (CAFC) in an

unrelated action, we consider it inappropriate to use as facts

available a rate that we have determined is indefensible. In reviewing

the Department's selection of the best information available, i.e., the

predecessor provision in the Act to the facts available provision, the

CAFC held in D&L Supply v. the United States, 1997 WL230117, at 2 (May

8, 1997 Fed. Cir.) (D&L Supply) that ``(i)nformation that has

conclusively been determined to be inaccurate does not qualify as the

`best information' under any test and certainly cannot be said to serve

the `basic purpose' of promoting accuracy.''

While there is no conclusive court action on the amended petition

rate, we have found it to be indefensible and, therefore, not

probative. Petitioner is correct that the Department itself requested a

remand in the Writing Instruments action in order to correct for a

procedural error at the LTFV investigation. Further, to conduct the

remand proceeding, the Department re-opened the administrative record

to accept the submission of new factual information from the parties.

After analyzing this new factual information, and on the basis of this

fuller administrative record, the Department determined on remand that

the appropriate PRC-wide rate is 53.65 percent.

Under these circumstances, and pursuant to the Department's charge

under section 776(c) of the Act to corroborate secondary information

from independent sources reasonably at the Department's disposal, we

determine that the unaffirmed remand determination rate of 53.65

percent is the rate with more probative value. In performing the

remand, the Department relied on new factual information from the very

types of independent sources, including published price lists and

official import statistics and customs data, that are discussed in the

SAA at 870. All of the new factual information on the re-opened

administrative record was publicly-available information on which the

Department principally relies in non-market economy cases. Because the

analysis performed on remand was based on a much fuller factual record,

the Department believes that the remand results provide the more

appropriate facts available rate.

Therefore, the Department is relying on the 53.65 percent rate as

facts available to establish the PRC country-wide rate in this review.

Comment 2: Petitioner asserts that the recalculated petition rate

reflects underlying legal errors pertaining to the LTFV investigation.

Petitioner argues that these alleged errors are found both in the LTFV

investigation as well as in the results of the remand determination,

and requests that the Department correct these alleged errors in the

final results of this review.

Department Position: The bases of the petitioner's various

assertions of underlying legal errors relating to the LTFV

investigation are contained in the administrative record of the LTFV

investigation, and not in the administrative record of this

administrative review. These claims are properly before the CIT in the

pending Writing Instruments action, which action pertains to the LTFV

investigation and for which a decision is now pending.

Amended Final Results of the Review

Based on our analysis of the issues outlined above, we have

determined that a margin of 53.65 percent is appropriate for the PRC

entity for the POR December 21, 1994 through November 30, 1995.

(Separate rates and exclusions determinations previously noted in the

final results of this review are unaffected by these amended final

results.)

The weighted-average dumping margins are as follows:

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

Weighted

average

Manufacturer/producer/exporter margin

percentage

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PRC-wide Rate.............................................. 53.65

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The U.S. Customs Service shall assess antidumping duties on all

appropriate entries. Individual differences between United States price

and normal value may vary from the percentage stated above. The

Department will issue appraisement instructions concerning the

respondent directly to the U.S. Customs Service.

Furthermore, the following deposit requirements will be effective

for all shipments of the subject merchandise, entered, or withdrawn

from warehouse, for consumption on or after the publication date of

these final results of administrative review, as provided for by

section 751(a)(1) of the Act: Merchandise exported by all PRC exporters

other than those previously assigned separate rates and/or excluded

from this antidumping duty order will be the PRC-wide rate of 53.65

percent.

These deposit requirements shall remain in effect until publication

of the final results of the next administrative review. This notice

serves as the final reminder to importers of their responsibility under

19 CFR 353.26 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 notice also serves as a reminder to parties subject to

administrative protective order (APO) of their responsibility

concerning the disposition of proprietary information disclosed under

APO in accordance with 19 CFR 353.34(d). Timely written notification or

conversion to judicial protective order is hereby requested. Failure to

comply with the regulations and the terms of the APO is a sanctionable

violation.

This administrative review and notice are in accordance with

section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)), section 777(i) of

the Act (19 U.S.C. 1677f(i)), and 19 CFR 353.28(c).

Dated: July 1, 1997.

Robert S. LaRussa,

Acting Assistant Secretary for Import Administration

[FR Doc. 97-17778 Filed 7-7-97; 8:45 am]

BILLING CODE 3510-DS-P