Import Administration, International Trade Administration, Department of Commerce.
Notice of Preliminary Results and Partial Rescission of the Antidumping Duty Administrative Review for the Period February 1, 2002 through January 31, 2003.
On March 25, 2003, in response to a request made by Flowline Division of Markovitz Enterprises, Inc., Gerlin, Inc., Shaw Alloy Piping Products, Inc., and Taylor Forge Stainless, Inc. (collectively, petitioners), the Department of Commerce (the Department) published a notice of initiation of antidumping duty administrative review of stainless steel butt-weld pipe fittings from Korea for the period February 1, 2002 through January 31, 2003. The review covers three manufacturers/exporters of subject merchandise, Sam Sung Stainless Commerce & Ind. Co., Ltd. (Sam Sung), Sungkwang Bend Co., Ltd. (Sungkwang), and TK Corporation. On May 28, 2003, petitioners withdrew their request for review of Sungkwang and TK Corporation. Because the petitioners submitted the only request for review of these two respondents, and also requested the rescission within the 90-day time limit, the Department is rescinding the review with respect to these respondents in accordance with 19 CFR 351.213(d)(1). Sam Sung failed to respond to the Department's questionnaire. As a result, we are basing our preliminary results for Sam Sung on adverse facts available.
September 29, 2003.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Fred Baker or Robert James, Enforcement Group III, Office 8, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Washington, D.C. 20230; telephone (202) 482-2924 and (202) 482-0649, respectively.End Further Info End Preamble Start Supplemental Information
On February 23, 1993, the Department published the antidumping duty order on certain stainless steel butt-weld pipe fittings from Korea. See Antidumping Duty Order: Certain Welded Stainless Steel Butt-Weld Pipe Fittings from Korea, 58 FR 11029 (February 23, 1993). On February 3, 2003, the Department published a notice of opportunity to request administrative review of this order. See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation: Opportunity to Request Administrative Review, 68 FR 5272 (February 3, 2003). On February 28, 2003, petitioners requested that the Department conduct an administrative review of TK Corporation, Sungkwang, and Sam Sung for the period February 1, 2002 through January 31, 2003. There were no other requests for review. On March 25, 2003, the Department published a notice of initiation of antidumping duty administrative review of stainless steel butt-weld pipe fittings from Korea, in accordance with 19 CFR 351.221(c)(1)(i). See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 68 FR 14394 (March 25, 2003). On March 25, 2003 we issued the questionnaires to TK Corporation, Sungkwang, and Sam Sung. We received responses from TK Corporation and Sungkwang, but no response from Sam Sung. On May 28, 2003, petitioners withdrew their request for review of TK Corporation and Sungkwang. On August 14, 2003 we sent a letter to Sam Sung allowing it until August 25, 2003 to respond to the questionnaire. We again received no response from Sam Sung.
Rescission of Review
Pursuant to its regulations, the Department will rescind an administrative review “if a party that requested the review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” See 19 CFR 351.213(d)(1). The petitioners' withdrawal of their request for review of TK Corporation and Sungkwang was within the 90-day time limit; accordingly, we are rescinding the administrative review for the period February 1, 2002 through March 31, 2003 with respect to these two companies, and will issue appropriate assessment instructions to the U.S. Start Printed Page 55936Bureau of Customs and Border Protection (Customs).
Use of Facts Available
Section 776(a)(2) of the Tariff Act of 1930, as amended (the Tariff 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; (C) significantly impedes a proceeding under this title; or (D) provides such information but the information cannot be verified as provided in section 782(i), the administering authority and the Commission shall, subject to section 782(d), use the facts otherwise available in reaching the applicable determination under this title.
On March 25, 2003, the Department issued its standard antidumping questionnaire to Sam Sung. The Department received no response. On August 14, 2003 the Department issued a letter to Sam Sung extending the deadline for its response until August 25, 2003. Sam Sung again did not respond. The information in this questionnaire related to Sam Sung's pricing practices in its home and U.S. markets. Without this information the Department is unable to determine what level of dumping, if any, existed for Sam Sung during the period of review. Therefore, we determine that the use of facts available is warranted pursuant to section 776(a)(2)(A) of the Tariff Act because Sam Sung withheld information requested by the Department.
Section 776(b) of the Tariff Act provides 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,” the Department may use information that is adverse to the interests of the party as facts otherwise available. Adverse inferences are appropriate “to ensure that the party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully.” See Statement of Administrative Action (SAA) accompanying the URAA, H.R. Doc. 316-103d at 870 (1994). Furthermore, “an affirmative finding of bad faith on the part of the respondent is not required before the Department may make an adverse inference.” See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27340 (May 19, 1997) (Final Rule).
The Department finds that in not responding to the questionnaire, Sam Sung failed to cooperate by not acting to the best of its ability to comply with requests for information. Therefore, pursuant to section 776(b) of the Tariff Act, we may, in making our determination, use an adverse inference in selecting from the facts otherwise available. This adverse inference may include reliance on data derived from the petition, a previous determination in an investigation or review, or any other information placed on the record. It is the Department's practice to assign the highest rate from any segment of a proceeding as total adverse facts available when a respondent fails to cooperate to the best of its ability. See e.g., Stainless Steel Plate in Coils from Taiwan; Preliminary Results and Rescission in Part of Antidumping Duty Administrative Review, 67 FR 5789 (February 7, 2002). (“Consistent with Department practice in cases where a respondent fails to cooperate to the best of its ability, and in keeping with section 776(b)(3) of the Act, as adverse facts available we have applied a margin based on the highest margin from any prior segment of the proceeding.... In this case, the highest margin from any segment of the proceeding is... the petition rate in the less-than-fair-value (LTFV) investigation.”) Therefore, in the instant case, the Department is applying the margin of 21.2 percent to Sam Sung for these final results. This margin represents the highest margin calculated in the AD petition submitted in the LTFV investigation. See Final Determination of Sales at Less Than Fair Value: Certain Welded Stainless Steel Butt-Weld Pipe Fittings from the Republic of Korea, 57 FR 61881, 61882 (December 29, 1992).
Information from prior segments of the proceeding constitutes secondary information, and section 776(c) of the Tariff Act provides that the Department shall, to the extent practicable, corroborate secondary information from independent sources reasonably at its disposal. The SAA provides that “corroborate” means simply that the Department will satisfy itself that the secondary information to be used has probative value. See H.R. Doc. 316-103d at 870 (1994). To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information to be used.
To corroborate the margins calculated in the petition, we examined the basis of the rates contained in the petition. The U.S. prices in the petition were based on prices of a Korean manufacturer selling in the United States. See Petition at 24 and appendix M (May 20, 1992). To corroborate this information, we obtained U.S. import statistics from the U.S. International Trade Commission (the ITC). See Notice of Final Determination of Sales at Less Than Fair Value: Circular Welded Non-Alloy Steel Pipe from South Africa, 61 FR 24271, 24273 (May 14, 1996). However, the ITC reported this data on a weight basis, and the prices contained in the petition were reported on a per-piece basis. Therefore, we were unable to use the U.S. import statistics as corroboration. Nevertheless, the prices used in the petition were from a price list that was publicly available and obtained directly from the Korean seller and manufacturer. See Petition, at appendix M (public version) (May 20, 1992). Therefore, because it is an independent, public source, we find that it has probative value. See Certain Carbon Steel Butt-Weld Pipe Fittings from Thailand: Final Results of Antidumping Duty Administrative Review; 68 FR 6409, 6411 (February 7, 2003); Notice of Final Determination of Sales at Less Than Fair Value: Freshwater Crawfish Tail Meat from the People's Republic of China, 62 FR 41347, 41349 (August 1, 1997). The Department is aware of no other independent sources of information that would enable us to further corroborate the petition's margin calculation.
The normal value was based on constructed value (CV). Petitioners based the cost of raw materials on petitioners' own consumption at prices reported in an antidumping petition for certain welded stainless steel pipes from Korea filed with the Department on November 18, 1991. Petitioners based direct and supervisory labor, natural gas, and electricity expenses on its own usage at wage rates and energy rates in Korea. The cost of utilities other than electricity and natural gas, tools and supplies, direct manufacturing overhead, and packing were based on petitioners' own actual experience in 1991. Petitioners added the statutory minimums of ten percent for general expenses and eight percent for profit to the cost of manufacturing. We examined the data submitted by the petitioners and the assumptions the petitioners made when calculating CV. The methodology was reasonable and was based on the data reasonably available to petitioners at the time. For purposes of the preliminary results of this review, we find no reason to believe the reliability of this information should be called into question.
With respect to the relevance aspect of corroboration, however, the Department will consider information reasonably at its disposal to determine whether there are circumstances that Start Printed Page 55937would render a margin inappropriate. Where circumstances indicate the selected margin is not appropriate as adverse facts available, the Department will disregard the margin and determine an appropriate margin. See, e.g., Fresh Cut Flowers from Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 6812, 6814 (Feb. 22, 1996) (where the Department disregarded the highest margin as adverse facts available because the margin was based on another company's uncharacteristic business expense resulting in an unusually high margin). See Stainless Steel Plate in Coils from Belgium; Preliminary Results of Antidumping Duty Administrative Review; 66 FR 11559 (February 26, 2001).
The highest margin in the history of the proceeding is 21.2 percent from the petition in the LTFV investigation. In this review, there are no circumstances indicating that this margin is inappropriate as adverse facts available. Therefore, we preliminarily find the 21.2 percent rate is corroborated to the greatest extent practicable in accordance with section 776(c) of the Tariff Act.
Preliminary Results of the Review
As a result of this review, we preliminarily determine that a weighted-average dumping margin of 21.2 percent exists for Sam Sung for the period February 1, 2002 through January 31, 2003.
Interested parties may submit written comments (case briefs) no later than 30 days after the date of publication. See 19 CFR §351.309(c)(1)(ii). Rebuttal comments (rebuttal briefs), which must be limited to issues raised in the case briefs, may be filed no later than 37 days after the date of publication of this notice. See 19 CFR §351.309(d)(1). Parties who submit case briefs or rebuttal briefs in this proceeding are requested to submit with each argument (1) a statement of the issue and (2) a brief summary of the argument, not to exceed five pages in length. Any interested party may request a hearing within 30 days of publication. See 19 CFR §351.310(c). Any hearing, if requested, will be held two days after the submission of rebuttal briefs, if any, or the first working day thereafter. See 19 CFR §351.310(d). The Department will publish a notice of the final results of the administrative review, which will include the results of its analysis of issues raised by the parties, within 120 days of publication of these preliminary results. See 19 CFR §351.213(h).
The Department will determine, and Customs shall assess, antidumping duties on all appropriate entries. The Department will issue appropriate assessment instructions directly to Customs within 15 days of publication of the final results of review. We will direct Customs to assess the resulting assessment rate against the entered customs values for the subject merchandise on each entry during the review period.
The following deposit requirements will be effective upon publication of 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, as provided by section 751(a)(1) of the Tariff Act: (1) the cash deposit rate for the reviewed company will be the rate shown above; (2) for previously reviewed or investigated companies not listed above, the cash deposit will continue to be the company-specific rate published for the most recent period; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the manufacturer is, the cash deposit rate will be that established for the most recent period for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this review, any previous reviews, or the LTFV investigation, the cash deposit rate will be 21.2 percent, the “all others” rate established in the LTFV investigation. See Final Determination of Sales at Less Than Fair Value: Certain Welded Stainless Steel Butt-Weld Pipe Fittings from the Republic of Korea, 57 FR 61881, 61882 (December 29, 1992).
These deposit requirements, when imposed, shall remain in effect until publication of the final results of the next administrative review.
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 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 administrative review and notice are in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act.Start Signature
Dated: September 16, 2003.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 03-24576 Filed 9-26-02; 8:45 am]
BILLING CODE 3510-DS-S