[Federal Register Volume 64, Number 74 (Monday, April 19, 1999)]
[Notices]
[Pages 19123-19125]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9760]
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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
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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