Import Administration, International Trade Administration, Department of Commerce.
In response to requests from interested parties, the Department of Commerce (the Department) is conducting an administrative review of the antidumping duty order on floor-standing, metal-top ironing tables and certain parts thereof from the People's Republic of China (PRC). The period of review (POR) is August 1, 2007 through July 31, 2008. We have preliminarily determined an antidumping duty margin for Foshan Shunde Yongjian Housewares & Hardware Co., Ltd. (Foshan Shunde) based upon the application of facts available with adverse inference (AFA). We invite interested parties to comment on these preliminary results. We intend to issue final results no later than 120 days from the publication of this notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930 as amended (the Act).
Effective Date: September 8, 2009.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Michael J. Heaney or Robert James, AD/CVD Operations, Office 7, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-4475 or (202) 482-0649, respectively.End Further Info End Preamble Start Supplemental Information
On August 6, 2004, the Department published in the Federal Register the antidumping duty order regarding floor-standing, metal-top ironing tables and certain parts thereof (ironing tables) from the PRC. See Notice of Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof From the People's Republic of China, 69 FR 47868 (August 6, 2004) (Amended Final and Order).
On August 1, 2008, the Department published a notice of opportunity to request an administrative review of the antidumping duty order on ironing tables from the PRC. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 73 FR 44966 (August 1, 2008). On August 29, 2008, Home Products International, Inc. (the Petitioner in this proceeding), requested, in accordance with 19 CFR 351.213(b)(2), an administrative review of this order for Foshan Shunde and Since Hardware (Guangzhou) Co., Ltd. (Since Hardware). On that same date, Foshan Shunde requested a review of its sales. Since Hardware's request for an Start Printed Page 46084administrative review of its sales followed on September 2, 2008. Because the deadline for filing a request for review, August 31, 2008, fell on a weekend Since Hardware's request was timely filed on the first business day thereafter. Since Hardware also requested that the Department defer initiation of the administrative review for one year, pursuant to 19 CFR 351.213(c).
On September 30, 2008, the Department initiated an administrative review of Foshan Shunde and Since Hardware. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 73 FR 56794 (September 30, 2008). On October 29, 2008, the Department published its notice of deferral of the administrative review for one year with respect to Since Hardware, pursuant to 19 CFR 351.213(c) (this notice of deferral was inadvertently omitted from our September 30th notice of initiation). See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Deferral of Administrative Review, 73 FR 64305 (October 29, 2008).
On May 1, 2009, in accordance with section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(h)(2), the Department extended the deadline for the preliminary results of review until August 31, 2009. See Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof From the People's Republic of China: Extension of the Time Limit for the Preliminary Results of the Administrative Review, 74 FR 20280 (May 1, 2009) (Extension of Preliminary Results).
On August 3, 2009, we invited interested parties to comment on the Department's surrogate country selection and to submit publicly available information to value the factors of production. Petitioners submitted comments concerning surrogate values and factors of production in their August 13, 2009 submission. On February 26, 2009, Foshan Shunde submitted public comments concerning surrogate values and factors of production; Petitioner did not comment directly on the use of India as a surrogate country.
The Department issued its original antidumping questionnaire to Foshan Shunde on October 14, 2008. Foshan Shunde timely filed its response to Section A of the questionnaire on November 18, 2008. Foshan Shunde's Sections C and D responses followed on December 4, 2008. Petitioner filed comments on Foshan Shunde's section A response on November 24, 2008, and on the sections C and D responses on December 15, 2008.
The Department subsequently issued supplemental requests for information on February 10, 2009, April 16, 2009, May 29, 2009, and July 27, 2009. Foshan Shunde timely responded to each of these supplemental requests for information on March 18, 2009, May 1, 2009, June 22, 2009, and August 10, 2009, respectively. Petitioner commented after each Foshan Shunde response thereafter, on March 30, 2009, May 7, 2009, June 30, 2009 and August 13, 2009. On August 27, 2009, Foshan Shunde submitted rebuttal comments to Petitioner's August 13, 2009 letter. Because Foshan Shunde submitted its August 27, 2009 comments four days prior to the fully extended deadline for the Department issuing its preliminary results, we have not considered Foshan Shunde's August 27, 2009 comments in these preliminary results.
Scope of the Order
For purposes of this order, the product covered consists of floor-standing, metal-top ironing tables, assembled or unassembled, complete or incomplete, and certain parts thereof. The subject tables are designed and used principally for the hand ironing or pressing of garments or other articles of fabric. The subject tables have full-height leg assemblies that support the ironing surface at an appropriate (often adjustable) height above the floor. The subject tables are produced in a variety of leg finishes, such as painted, plated, or matte, and they are available with various features, including iron rests, linen racks, and others. The subject ironing tables may be sold with or without a pad and/or cover. All types and configurations of floor-standing, metal-top ironing tables are covered by this review.
Furthermore, this order specifically covers imports of ironing tables, assembled or unassembled, complete or incomplete, and certain parts thereof. For purposes of this order, the term “unassembled” ironing table means a product requiring the attachment of the leg assembly to the top or the attachment of an included feature such as an iron rest or linen rack. The term “complete” ironing table means product sold as a ready-to-use ensemble consisting of the metal-top table and a pad and cover, with or without additional features, e.g., iron rest or linen rack. The term “incomplete” ironing table means product shipped or sold as a “bare board”—i.e., a metal-top table only, without the pad and cover- with or without additional features, e.g., iron rest or linen rack. The major parts or components of ironing tables that are intended to be covered by this order under the term “certain parts thereof” consist of the metal top component (with or without assembled supports and slides) and/or the leg components, whether or not attached together as a leg assembly. The order covers separately shipped metal top components and leg components, without regard to whether the respective quantities would yield an exact quantity of assembled ironing tables.
Ironing tables without legs (such as models that mount on walls or over doors) are not floor-standing and are specifically excluded. Additionally, tabletop or countertop models with short legs that do not exceed 12 inches in length (and which may or may not collapse or retract) are specifically excluded.
The subject ironing tables are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 9403.20.0011. The subject metal top and leg components are classified under HTSUS subheading 9403.90.8040. Although the HTSUS subheadings are provided for convenience and for Customs and Border Protection (CBP) purposes, the Department's written description of the scope remains dispositive.
Pursuant to section 771(18)(C)(i) of the Act, any determination that a foreign country is a Non-Market Economy (NME) shall remain in effect until revoked by the administering authority. In every case conducted by the Department involving the PRC, the PRC has been treated as an NME. See, e.g., Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Preliminary Results 2001-2002 Administrative Review and Partial Rescission of Review, 68 FR 7500, 7500-01 (February 14, 2003), unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From the People's Republic of China: Final Results of 2001-2002 Administrative Review and Partial Rescission of Review, 68 FR 70488 (December 18, 2003). None of the parties to these reviews has contested such treatment. Accordingly, we calculated normal value (NV) in accordance with section 773(c) of the Act, which applies to NME countries.Start Printed Page 46085
In proceedings involving NME countries, the Department begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty rate unless an exporter can affirmatively demonstrate an absence of government control, both in law (de jure) and in fact (de facto), with respect to its export activities. See Notice of Final Determination of Sales at Less Than Fair Value: Sparklers From the People's Republic of China, 56 FR 20588 at Comment 1 (May 6, 1991) (Sparklers), as further developed in Notice of Final Determination of Sales at Less Than Fair Value: Silicon Carbide From the People's Republic of China, 59 FR 22585 (May 2, 1994). It is the Department's practice to require a party to submit evidence that it operates independently of the State-controlled entity in each segment of a proceeding in which it requests separate rate status. The process requires exporters to submit a separate-rate status application. See Tapered Roller Bearings and Parts Thereof, Finished or Unfinished, From the People's Republic of China: Final Results of the 2005-2006 Administrative Review and Partial Rescission of Review, 72 FR 56724 (October 4, 2007); and Peer Bearing Co., Changshan v. United States, 587 F.Supp. 2d 1319, 1324-45 (Ct. Int'l Trade 2008) (affirming the Department's separate rates determination in that underlying review).
As explained below, in this review we have determined that Foshan Shunde failed to provide reliable and verifiable responses to the Department's requests for information (see “Use of Adverse Facts Available”, below). Accordingly, because the Department determines that Foshan Shunde's responses are unreliable and inconsistent, the Department finds that Foshan Shunde has not demonstrated that it operates free from government control. Thus, for purposes of this review, the Department determines that Foshan Shunde is part of the PRC-wide entity. See Memorandum to John M. Andersen, Acting Assistant Secretary of Import Administration, “Floor-standing, Metal-top Ironing Tables and Certain Parts Thereof from the People's Republic of China: Use of Facts Available for Foshan Shunde Yongjian Hardware & Housewares Co., Ltd.,” dated August 31, 2009 (Facts Available Memorandum); see also, Carbazole Violet Pigment 23 From the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 74 FR 883 (January 9, 2009) (where the Department revoked a respondent's separate rate status after the respondent refused to cooperate with the Department's administrative review).
Use of Adverse Facts Available
Section 776(a)(2) of the Tariff Act of 1930, as amended (the Act), provides that, if an interested party (A) withholds information that has been requested by the Department; (B) fails to provide such information in a timely manner or in the form or manner requested subject to sections 782(c)(1) and (e) of the Act; (C) significantly impedes a proceeding under the antidumping statute; or (D) provides such information but the information cannot be verified, the Department shall, subject to section 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
Where the Department determines a response to a request for information does not comply with the request, section 782(d) of the Act requires the Department to inform the person submitting the response of the nature of the deficiency and, to the extent practicable, provide that person the opportunity to remedy or explain the deficiency. If that person submits further information that continues to be unsatisfactory, or this information is not submitted within the applicable time limits, the Department may, subject to section 782(e) of the Act, disregard all or part of the original and subsequent responses, as appropriate. Section 782(e) of the Act states that the Department shall not decline to consider information deemed “deficient” under section 782(d) if: (1) The information is submitted by the established deadline; (2) the information can be verified; (3) the information is not so incomplete that it cannot serve as a reliable basis for reaching the applicable determination; (4) the interested party has demonstrated that it acted to the best of its ability; and (5) the information can be used without undue difficulties.
Furthermore, section 776(b) of the Act states that if the Department “finds that an interested party has failed to cooperate by not acting to the best of its ability to comply with a request for information from the administering authority or the Commission, the administering authority * * * in reaching the applicable determination under this title, may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available.” See also Statement of Administrative Action (SAA) accompanying the Uruguay Round Agreement Act, H.R. Rep. No. 103-316 at 870 (1994).
Finally, section 776(c) of the Act provides that when the Department relies upon secondary information rather than upon information obtained in the course of an investigation or review, it shall, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. Secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the subject merchandise.” See id. Corroborate means the Department will satisfy itself that the secondary information to be used has probative value. Id. To corroborate secondary information, the Department will, to the extent practicable, examine the relevance and reliability of that information.
In this case, the Department finds that Foshan Shunde has provided inaccurate and unreliable information concerning its production costs and factors of production including its steel inputs and the long products utilized in the manufacturing process. Additionally, there is evidence that Foshan Shunde has failed to completely recount the role that an affiliated company played in selling the subject merchandise. For a complete discussion of the deficiencies in Foshan Shunde's questionnaire responses, see the Facts Available Memorandum at pages 1-7. Further, the deficiencies in Foshan Shunde's responses give rise to concerns about the reliability of Foshan Shunde's entire response, including Foshan Shunde's claim of eligibility for separate rate status.
Additionally, we find that, in failing to provide reliable information in response to the Department's five requests for information (see “Background” above for the dates of these questionnaires) concerning its factors of production, Foshan Shunde has significantly impeded this proceeding within the meaning of section 776(a)(2)(A) and (C) of the Act. Because Foshan Shunde provided unusable and inaccurate information in response to the Department's requests for information, and because the requested information is essential to the Department's analysis, the Department can no longer rely on this information for purposes of determining Foshan Shunde's margin of dumping in this administrative review. Therefore, in issuing these preliminary results of review we are required to resort to the Start Printed Page 46086use of the facts otherwise available for the PRC entity, which includes Foshan Shunde.
Finally, we preliminarily determine that Foshan Shunde has failed to cooperate by not acting to the best of its ability to comply with our request for information. For a complete discussion of the deficiencies in Foshan Shunde's questionnaire response, necessitating reference to Foshan Shunde's business proprietary information, see the Facts Available Memorandum. A public version of this proprietary memorandum is available in the Department's Central Records Unit located in the Main Commerce Building.
For the reasons summarized above and fully discussed in the Facts Available Memorandum, we have determined the data submitted by Foshan Shunde concerning its factors of production are unreliable and inaccurate. Moreover, our analysis of these data indicate these deficiencies and irregularities taken together establish a pattern of behavior that undermines the reliability and credibility of Foshan Shunde's entire questionnaire response, including Foshan Shunde's claim for separate rate status. Furthermore, despite the Department's attempts to permit Foshan Shunde to remedy and clarify the deficiencies previously discussed, Foshan Shunde failed to do so. Therefore, the Department finds Foshan Shunde has failed to cooperate to the best of its ability with respect to its obligation to provide accurate information concerning its factors of production. See Facts Available Memorandum. As Foshan Shunde failed to demonstrate its eligibility for separate rate status, we are treating Foshan Shunde as part of the PRC-wide entity. Accordingly, we are preliminarily assigning the PRC-wide entity a margin based upon adverse inferences. As AFA, we preliminarily assign the PRC-wide entity a margin of 157.68 percent, the highest rate calculated in the original less-than-fair-value investigation. See Amended Final and Order.
Corroboration of Secondary Information
As noted above, section 776(c) of the Act requires the Department to corroborate secondary information “from independent sources that are reasonably at its disposal.” Independent sources used to corroborate such secondary evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties in the course of a particular segment. See Notice of Preliminary Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators From Japan, 68 FR 35627 (June 16, 2003), unchanged in Notice of Final Determination of Sales at Less Than Fair Value: High and Ultra-High Voltage Ceramic Station Post Insulators From Japan, (68 FR 62560 (November 5, 2003)). However, unlike other types of information, there are no independent sources for calculated dumping margins. The only source for an antidumping duty margin is the investigation or prior administrative reviews of an antidumping duty order.
The AFA rate that the Department is now using was determined in a previously published antidumping determination. See Amended Final and Order. In that amended final determination, the Department calculated a company-specific rate applicable to Shunde Yongjian Housewares Co., Ltd. Because this rate is a company-specific calculated rate concerning subject merchandise, we have determined this rate to be reliable. Id.
As to the relevance aspect of corroboration, the Department will consider information reasonably at its disposal to determine whether a margin continues to have relevance. Where circumstances indicate that the selected margin is not appropriate as AFA, the Department will disregard the margin and determine an appropriate margin. See Fresh Cut Flowers From Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (February 22, 1996) (the Department disregarded the highest margin in that case as adverse best information available (the predecessor to facts available) because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin). Similarly, the Department does not apply a margin that has been discredited. See D&L Supply Co. v. United States, 113 F.3d 1220, 1221 (Fed. Cir. 1997) (ruling that the Department will not use a margin that has been judicially invalidated).
The Federal Circuit has stated that Congress “intended for an adverse facts available rate to be a reasonably accurate estimate of the respondent's actual rate, albeit with some built-in increase intended as a deterrent to non-compliance.” See F. Lli De Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027, 1034 (Fed. Cir. 2000). In applying this precedent, neither the Federal Circuit nor the Court of International Trade has required the Department to follow a formulaic approach. Section 776(c) of the Act requires that the Department corroborate secondary information used in calculating a margin “to the extent practicable.” Thus, the aspirational goal articulated by the Federal Circuit of what Congress intended must be balanced against the practicalities of the case and the evidence on the administrative record.
In this case, the Department rejected all of Foshun Shunde's data and instead is applying AFA for the entire record. As a result, there is no reliable information on this record for which to calculate a margin for Foshun Shunde. Because of the facts of this particular case, the Department will rely on its general practice, and apply the highest calculated rate from any segment of the proceeding. The Department determines that there is no other calculated margin in the history of this antidumping duty order that would ensure that Foshun Shunde will not benefit from failing to cooperate in this administrative review.
In reviews in which the respondent does not cooperate, the Department relies upon the “common sense inference that the highest prior margin is the most probative evidence of current margins because, if it were not so, the importer knowing of the rule, would have produced current information showing the margin to be less.” See Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1190-91 (Fed. Cir. 1990). Because of the Department's well known practice, respondents will cooperate fully and provide the Department with information if they expect to receive a rate lower than the highest previously calculated rate for any entity, or not cooperate if they anticipate receiving a margin higher than the highest previously calculated rate for any entity. Accordingly, the Department determines that the 157.68 percent margin is corroborated, to the extent practicable, in accordance with section 776(c) of the Act.
The PRC-Wide Entity
As explained above, the PRC-wide entity, which includes Foshan Shunde, withheld necessary information by failing to supply full, accurate and reliable responses to the Department's numerous requests for information. Therefore, we preliminarily determine it is appropriate to apply a dumping margin for the PRC-wide entity using facts available on the record. See section 776(a) of the Act. In addition, because the PRC-wide entity failed to cooperate to the best of its ability, we find an adverse inference is warranted. See section 776(b) of the Act. Start Printed Page 46087
Preliminary Results of Review
We preliminarily determine that the following antidumping duty margin exists:
|The PRC-Wide Entity (including Foshan Shunde Yongjian Housewares & Hardware Co., Ltd.)||157.68|
Pursuant to 19 CFR 351.212(b), the Department will determine, and CBP shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions directly to CBP 15 days after the date of publication of the final results of this review. For assessment purposes, where possible, we calculate importer-specific ad valorem assessment rates for ironing tables from the PRC based on the ratio of the total amount of the dumping duties calculated for the examined sales to the total entered value of those same sales. Where assessments are based upon total facts available, including total AFA, we instruct CBP to assess duties at the ad valorem margin rate published above. We will instruct CBP to assess antidumping duties on all appropriate entries covered by this review if any assessment rate calculated in the final results of this review is above de minimis. The final results of this review shall be the basis for the assessment of antidumping duties on entries of merchandise covered by the final results of this review and for future deposits of estimated duties, where applicable.
Cash Deposit Requirements
The following cash deposit requirements will be effective upon publication of the final results of this administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided for by section 751(a)(2)(C) of the Act: (1) For the exporters listed above, the cash deposit rate will be established in the final results of this review (except, if the rate is zero or de minimis, i.e., less than 0.5 percent, no cash deposit will be required for that company); (2) for previously investigated or reviewed PRC and non-PRC exporters not listed above that have separate rates, the cash deposit rate will continue to be the exporter-specific rate published for the most recent period; (3) for all PRC exporters of subject merchandise which have not been found to be entitled to a separate rate, the cash deposit rate will be the PRC-wide rate of 157.68 percent (see Ironing Tables Order); and (4) for all non-PRC exporters of subject merchandise which have not received their own rate, the cash deposit rate will be the rate applicable to the PRC exporters that supplied that non-PRC exporter. These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
Interested parties may submit case briefs within 30 days of the date of publication of this notice in accordance with 19 CFR 351.309(c)(1)(ii). As part of the case brief, parties are encouraged to provide a summary of the arguments not to exceed five pages and a table of statutes, regulations, and cases cited in accordance with 19 CFR 351.309(c)(2). Rebuttal briefs, which must be limited to issues raised in the case briefs, must be filed within five days after the case brief is filed in accordance with 19 CFR 351.309(d).
Any interested party may request a hearing within 30 days of publication of this notice in accordance with 19 CFR 351.310(c). Any hearing will be held 37 days after the publication of this notice, or the first workday thereafter unless the Department alters the date pursuant to 19 CFR 351.310(d). Individuals who wish to request a hearing must submit a written request within 30 days of the publication of this notice in the Federal Register to the Assistant Secretary for Import Administration, U.S. Department of Commerce, Room 1870, 14th Street and Constitution Avenue, NW., Washington, DC 20230. Requests for a public hearing should contain: (1) The party's name, address, and telephone number; (2) the number of participants; and (3) to the extent practicable, an identification of the arguments to be raised at the hearing. If a hearing is held, an interested party may make an affirmative presentation only on arguments included in that party's case brief and may make a rebuttal presentation only on arguments included in that party's rebuttal brief in accordance with 19 CFR 351.310(c). Parties should confirm by telephone the time, date, and place of the hearing within 48 hours before the scheduled time.
The Department will issue the final results of this review, which will include the results of its analysis of issues raised in the briefs, not later than 120 days after the date of publication of this notice in accordance with section 751(a)(3)(A) of the Act and 19 CFR 351.213(h)(1).
Notification to Importers
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during these review periods. 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.
These preliminary results of administrative review are issued and this notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act.Start Signature
Dated: August 31, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretary for Import Administration.
1. Our Extension of Preliminary Results erroneously gives the extended deadline as September 1, 2009. See Extension of Preliminary Results at 20280. However, the correct deadline is August 31, 2009.Back to Citation
[FR Doc. E9-21426 Filed 9-4-09; 8:45 am]
BILLING CODE 3510-DS-P