Notice of Final Determination of Sales at Less Than Fair Value and Final Affirmative Finding of Critical Circumstances: Elastic Rubber Tape From India

DEPARTMENT OF COMMERCE

International Trade Administration

[A-533-815]

Notice of Final Determination of Sales at Less Than Fair Value

and Final Affirmative Finding of Critical Circumstances: Elastic Rubber

Tape From India

AGENCY: Import Administration, International Trade Administration,

Department of Commerce.

EFFECTIVE DATE: April 19, 1999.

FOR FURTHER INFORMATION CONTACT: Alysia Wilson or Cynthia Thirumalai,

Office of AD/CVD Enforcement 1, Group I, Import Administration,

International Trade Administration, U.S. Department of Commerce, 14th

Street and Constitution Avenue, N.W., Washington, D.C. 20230;

telephone: (202) 482-0108 or (202) 482-4087, 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 of Commerce

(``Department'') regulations are to the regulations at 19 CFR Part 351

(April 1998).

Final Determination

We determine that elastic rubber tape (``ERT'') from India is being

sold in the United States at less than fair value (``LTFV''), as

provided in section 735 of the Act. The estimated margins are shown in

the ``Suspension of Liquidation'' section of this notice.

Case History

On February 5, 1999, after the publication of our preliminary

determination in this investigation (see Notice of Preliminary

Determination of Sales at Less Than Fair Value and Preliminary Negative

Critical Circumstances Determination: Elastic Rubber Tape from India,

64 FR 5025 (February 2, 1999) (Preliminary Determination)), Garware

Elastomerics Limited (``GEL'') withdrew from the remainder of the

proceeding. No interested parties provided comments on the Preliminary

Determination and no request for a hearing was received by the

Department.

Scope of the Investigation

For purposes of this investigation, the product covered is elastic

rubber tape. Elastic rubber tape is defined as vulcanized, non-cellular

rubber strips, of either natural or synthetic rubber, 0.006 inches to

0.100 inches (0.15 mm to 2.54 mm) in thickness and \1/8\ inches to 1\5/

8\ inches (3 mm to 42 mm) in width. Such product is generally used in

swim wear and underwear.

The merchandise subject to this investigation is classified in the

Harmonized Tariff Schedule of the United States (``HTSUS'') at

subheading 4008.21.00. Although the HTSUS subheading is provided for

convenience and customs purposes, the written description of the

merchandise under investigation is dispositive.

Period of Investigation

The period of investigation (``POI'') is July 1, 1997, through June

30, 1998.

Adverse Facts Available

Section 776(a)(2) of the Act provides that if an interested party

or any other person (A) withholds information that has been requested

by the administering authority; (B) fails to provide such information

by the deadlines for the submission of the information or in the form

and manner requested, subject to subsections (c)(1) and (e) of section

782 of the Act; (C) significantly impedes a proceeding under the

antidumping statute; or (D) provides such information but the

information cannot be verified as provided in section 782(i) of the

Act, the administering authority shall, subject to section 782(d) of

the Act, use the facts otherwise available in reaching the applicable

determination.

GEL failed to respond to the Department's requests for information;

namely, GEL withdrew from the investigation. Accordingly, since GEL has

withheld necessary information and withdrawn from the proceeding, which

prevented the Department from verifying any of GEL's responses and

impeded the Department from further investigation, we have determined,

under sections 776(a)(2)(A), (C) & (D) of the Act, that we must base

our determination for that company on the facts available.

Section 776(b) of the Act further provides that adverse inferences

may be used for a party that has failed to cooperate by not acting to

the best of its ability to comply with a request for information (see

also the Statement of Administrative Action (``SAA''), accompanying the

URAA, H. Doc. No. 316, 103rd Cong., 2d Sess. 870). Given GEL's refusal

to comply with the

[[Page 19124]]

Department's request for information and its withdrawal from

participation in the investigation, the Department has determined that

GEL has failed to cooperate to the best of its ability in this

investigation. Therefore, the Department has determined that an adverse

inference is warranted with respect to GEL.

As adverse facts available, the Department is assigning GEL a

margin based on the highest margin in the petition. The Department

finds that the highest petition margin is appropriate and indicative of

GEL's selling practices because if GEL could have submitted information

demonstrating the appropriateness of a lower margin, it would have done

so. See, Notice of Final Determination of Sales at Less Than Fair

Value: Steel Wire Rod from Venezuela, 63 FR 8946 (February 23, 1998).

The court has upheld the Department's assumption that the petition

information is probative of a respondent's experience when a respondent

failed to submit information in a proceeding. See, Koenig and Bauer-

Albert AG v. United States, 15 F. Supp 2d 834, 858 (Court of

International Trade (CIT) 1998) (stating that ``Commerce had a right to

assume that the petition information was more probative of

[respondent's] experience because if [respondent] could have submitted

information demonstrating that it ought to receive a lower margin, it

would have done so.'').

Therefore, the final rate for GEL is 66.51 percent, which is based

on the highest margin alleged in the petition. We used this same

petition margin as partial adverse facts available in the Preliminary

Determination, and as discussed there, the Department has, to the

extent practicable, corroborated that margin as required by Section

776(c) of the Act. See also, Memorandum to Susan Kuhbach regarding

``Corroboration of Secondary Information, Use of Adverse Facts

Available'' dated January 26, 1999. Furthermore, no record evidence or

argument has been submitted that would cause the Department to call

into question the accuracy of the data in the petition. Therefore, we

determine that the use of this margin as facts available for GEL is

appropriate.

Critical Circumstances

Section 733(e)(1) of the Act provides that, if a petitioner alleges

critical circumstances, the Department will determine whether there is

a reasonable basis to believe or suspect that (A)(i) there is a history

of dumping and material injury by reason of dumped imports in the

United States or elsewhere of the subject merchandise, or (ii) the

person by whom, or for whose account, the merchandise was imported knew

or should have known that the exporter was selling the subject

merchandise at less than its fair value and that there was likely to be

material injury by reason of such sales, and (B) there have been

massive imports of the subject merchandise over a relatively short

period.

As discussed above in the ``Facts Available'' section, GEL has not

cooperated to the best of its ability in this investigation and

application of adverse facts available is appropriate. Since there is

no verified information on the record with respect to GEL's volume of

imports, and U.S. import statistics are unavailable because ERT is

entered under an HTSUS basket category which includes a variety of

other products, we have no choice but to apply the adverse inference

that GEL has made massive imports of the subject merchandise over a

relatively short period of time. Therefore, we find that the second

criterion for determining whether critical circumstances exist with

respect to GEL's exports of subject merchandise has been met. See,

Notice of Final Determination of Sales at Less Than Fair Value: Certain

Carbon Steel Butt-Weld Pipe Fittings From Malaysia, 60 FR 10550, 10551

(February 27, 1995) where the Department determined critical

circumstances existed since it was unable to verify the accuracy of

this data.

In determining whether an importer knew or should have known that

the exporter was selling the subject merchandise at less than its fair

value and thereby causing material injury, the Department normally

considers margins over 15 percent for CEP sales and 25 percent for EP

sales to impute knowledge of dumping and of resultant material injury.

See, Notice of Preliminary Determination of Sales at Less Than Fair

Value: Certain Cut-to-Length Carbon Steel Plate from the Russian

Federation, 62 FR 61787, 61793 (November 19, 1997). In this

investigation, we have determined, pursuant to an application of

adverse facts available, the margin to be 66.51 percent. As this margin

indicates dumping over the 15 and 25 percent thresholds for all of

GEL's sales, we determine that the first criterion for ascertaining

whether critical circumstances exist has also been satisfied.

Therefore, since both criteria for finding critical circumstances under

section 733(e)(1) of the Act have been met, we determine that critical

circumstances exist with respect to exports of ERT from India by GEL.

The All Others Rate

The foreign manufacturer/exporter in this investigation is being

assigned a dumping margin entirely on the basis of facts otherwise

available. Section 735(c)(5)(B) of the Act provides that, where the

dumping margins established for all exporters and producers

individually investigated are determined entirely under section 776 of

the Act, the Department may use any reasonable method to establish the

estimated ``All Others'' rate for exporters and producers not

individually investigated, including averaging the estimated weighted-

average dumping margins determined for the exporters and producers

individually investigated. Further, the SAA at 873 provides that where

the data do not permit weight-averaging, the Department may use other

reasonable methods. In this case, the margin assigned to the only

company investigated is based on adverse facts available. Therefore,

consistent with the SAA at 873, we are using an alternative method. As

our alternative, we are basing the ``All Others'' rate on a simple

average of the margins in the petition, based both on price-to-price

comparisons and constructed value. As a result, the ``All Others'' rate

is 45.55 percent.

Continuation of Suspension of Liquidation

In accordance with section 733(d)(1) and 735(c)(4)(A) of the Act,

we are directing the U.S. Customs Service (``Customs'') to continue to

suspend liquidation of all entries of ERT from India, that are entered,

or withdrawn from warehouse, for consumption on or after February 2,

1999 the date of publication of our preliminary determination in the

Federal Register. In addition, as a result of our critical

circumstances determination in our final determination, we will

instruct Customs to suspend liquidation of GEL's entries of ERT from

India between November 4, 1999, and February 1, 1999 (i.e., 90 days

prior to the date of publication of our preliminary determination in

the Federal Register). We will instruct Customs to require a cash

deposit or the posting of a bond equal to the percentage margins, as

indicated in the chart below. These suspension-of-liquidation

instructions will remain in effect until further notice. The dumping

margins are as follows:

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

Margin

Exporter/Manufacturer percentage

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

Garware Elastomerics Limited (GEL)........................ 66.51

[[Page 19125]]

All Others................................................ 45.55

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

The ``All Others'' rate, which we derived from the average of the

margins calculated in the petition, applies to all entries of subject

merchandise other than those manufactured or exported by the named

respondent.

ITC Notification

In accordance with section 735(d) of the Act, we have notified the

International Trade Commission (ITC) of our determination. As our final

determination is affirmative, the ITC will, within 45 days, determine

whether these imports are materially injuring, or threaten material

injury to, the U.S. industry. If the ITC determines that material

injury, or threat of material injury, does not exist the proceeding

will be terminated and all securities posted will be refunded or

canceled. If the ITC determines that such injury does exist, the

Department will issue an antidumping duty order directing Customs

officials to assess antidumping duties on all imports of the subject

merchandise entered, or withdrawn from warehouse, for consumption on or

after the effective date of the suspension of liquidation.

In accordance with section 735(c)(3) of the Act, if the ITC makes a

final negative finding of critical circumstances, the Department will

instruct Customs to terminate the retroactive suspension of liquidation

of GEL's entries from the period beginning November 4, 1998, through

February 1, 1999 (i.e., the 90 day period prior to publication of the

preliminary determination). The Department will also instruct Customs

to release any bond or other security and refund any cash deposit

collected on subject merchandise retroactively suspended during this

90-day period.

This determination is issued and published in accordance with

sections 735(d) and 777(i)(1) of the Act.

Dated: April 12, 1999.

Richard W. Moreland,

Acting Assistant Secretary for Import Administration.

[FR Doc. 99-9760 Filed 4-16-99; 8:45 am]

BILLING CODE 3510-DS-P