[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Notices]
[Pages 68713-68716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33175]
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DEPARTMENT OF COMMERCE
[C-357-403, C-357-005]
Oil Country Tubular Goods From Argentina and Cold-Rolled Carbon
Steel Flat Products From Argentina: Preliminary Results of
Countervailing Duty Administrative Reviews/Intent To Terminate
Administrative Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of preliminary results of countervailing duty
administrative reviews; intent to terminate administrative reviews.
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SUMMARY: The Department of Commerce (``the Department'') is conducting
administrative reviews of the countervailing duty order on Oil Country
Tubular Goods (OCTG) from Argentina for the periods 1992, 1993, and
1994, pursuant to section 751(a) of the Tariff Act of 1930, as amended
(the ``Act'). Also pursuant to section 751(a), the Department is
conducting reviews of the countervailing duty order on Cold-Rolled
Carbon Steel Flat Products (Cold-Rolled Steel) from Argentina for the
periods 1992 and 1993.
The Department is also conducting changed circumstances reviews of
the orders on OCTG and Cold-Rolled Steel from Argentina pursuant to
section 751(b) of the Act. Initiation of Changed Circumstances
Countervailing Duty Administrative Reviews: Leather from Argentina,
Wool from Argentina, Oil Country Tubular Goods from Argentina, and
Cold-Rolled Carbon Steel Flat Products from Argentina, 61 FR 14553
(April 2, 1996) (Changed Circumstances
[[Page 68714]]
Reviews). These reviews are focused on the legal effect, if any, of
Argentina's status as a ``country under the Agreement,'' within the
meaning of 19 U.S.C. Sec. 1303(a)(1) (1988; repealed 1994), as of
September 20, 1991, on the countervailing duty orders covering leather,
wool, OCTG, and Cold-Rolled Steel.
Because the administrative reviews cover periods after September
20, 1991, we have had to consider in these administrative reviews a
question which is also at issue in the changed circumstances reviews--
that is, whether the Department has the authority to assess
countervailing duties on unliquidated entries of subject merchandise
occurring after Argentina became a ``country under the Agreement'' and
before January 1, 1995, the date that Argentina became a ``Subsidies
Agreement country'' within the meaning of section 701(b) of the Act.
The Department preliminarily determines that it lacks the authority
to assess countervailing duties on entries of OCTG and Cold-Rolled
Steel from Argentina made on or after September 20, 1991 and on or
before December 31, 1994. As a result, we intend to terminate the
pending administrative reviews of the countervailing duty order on OCTG
covering 1992, 1993, and 1994, as well as the pending administrative
reviews of the countervailing duty order on Cold-Rolled Steel covering
1992 and 1993. The question of the Department's authority to assess
duties on unliquidated entries of the subject merchandise made on or
after January 1, 1995 under these orders (and whether to revoke these
orders) remains to be determined in the context of the ongoing changed
circumstances reviews.
If the final results of these administrative reviews remain the
same as these preliminary results, we will instruct the U.S. Customs
Service to liquidate all entries of OCTG and Cold-Rolled Steel subject
to these administrative reviews without regard to countervailing duties
as detailed in the Preliminary Results of Reviews section of this
notice. Suspension of liquidation will continue at a cash deposit rate
of zero for OCTG, as indicated in the section below entitled Suspension
of Liquidation. Interested parties are invited to comment on these
preliminary results. (See Public Comment section of this notice.)
EFFECTIVE DATE: December 30, 1996.
FOR FURTHER INFORMATION CONTACT: Dana Mermelstein or Megan Waters,
Office CVD/AD Enforcement VI, Import Administration, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, N.W., Washington, D.C. 20230; telephone: (202)
482-2786.
SUPPLEMENTARY INFORMATION:
Background
On November 27, 1984, the Department published in the Federal
Register (49 FR 46564) the countervailing duty order on OCTG from
Argentina. The countervailing duty order on Cold-Rolled Steel from
Argentina was published in the Federal Register (49 FR 18006) on April
26, 1984.
On November 1, 1995, November 10, 1994, and November 3, 1993, the
Department published its annual notice of ``Opportunity to Request
Administrative Review'' (60 FR 55540, 59 FR 56034, and 58 FR 58682)
regarding the OCTG countervailing duty order. We received timely
requests for each of these administrative reviews and we initiated the
reviews pursuant to section 751(a) of the Act. The review of OCTG
covering the period January 1 through December 31, 1994, was initiated
on December 15, 1995 (60 FR 64413). The review of OCTG covering the
period January 1 through December 31, 1993, was initiated on December
15, 1994 (59 FR 64650). The review of OCTG covering the period January
1 through December 31, 1992, was initiated on December 17, 1993 (58 FR
65964).
On April 7, 1994 and April 9, 1993, the Department published its
annual notice of ``Opportunity to Request Administrative Review'' (59
FR 16615 and 58 FR 18374) regarding the countervailing duty order on
Cold-Rolled Steel from Argentina. We received timely requests for each
of these administrative reviews and we initiated the reviews pursuant
to section 751(a) of the Act. The review of Cold-Rolled Steel covering
the period January 1 through December 31, 1993, was initiated on May
12, 1994 (59 FR 24683). The review of Cold-Rolled Steel covering the
period January 1 through December 31, 1992, was initiated on May 27,
1993 (58 FR 30767).
The Ceramica Decision
On September 6, 1995, the Court of Appeals for the Federal Circuit
(CAFC) held, in a case involving imports of dutiable ceramic tile, that
Mexico became a ``country under the Agreement'' within the meaning of
19 U.S.C. Sec. 1303(a)(1) (1988; repealed 1994) on the date that it
signed its ``Understanding'' with the United States ``Regarding
Subsidies and Countervailing Duties'' (``Mexican MOU''). Ceramica
Regiomontana v. United States, 64 F.3d 1579, 1583 (Fed. Cir. 1995)
(Ceramica). According to the court, language in the agreement which
suggested a later date (i.e., only for pending and new investigations)
was ``trumped'' by the statute. Id.
Once Mexico became a country under the Agreement, the court
declared, the Department could not assess countervailing duties on tile
from that country under former section 303(a)(1) of the Act. 64 F.3d at
1582. ``After Mexico became a `country under the Agreement,' the only
provision under which ITA could continue to impose countervailing
duties was section 1671.'' Id.
One of the prerequisites to the assessment of countervailing duties
under 19 U.S.C. 1671 (1988) is an affirmative injury determination. See
also Id. at Sec. 1671e. However, at the time the countervailing duty
order on ceramic tile was issued, the requirement of an affirmative
injury determination under U.S. law was not applicable. Therefore, the
court looked to see whether the statute contained any means by which
the order on tile could receive an injury test. Specifically, the court
looked at section 104(b) of the Trade Agreements Act of 1979, Public
Law N. 96-39 (July 20, 1979) (1979 Act).
Section 104(b) was designed to provide an injury test for certain
countervailing duty orders issued under former section 303 prior to the
effective date of the 1979 Act (which established Title VII and, in
particular, section 701 of the Act). However, in order to induce other
countries to accede to the 1979 Subsidies Code (or substantially
equivalent agreements), the window of opportunity was intentionally
limited. In order to qualify (i) the exporting nation had to be a
country under the Agreement (e.g., a signatory of the Subsidies Code)
by January 1, 1980, (ii) the order had to be in existence on January 1,
1980 (i.e., the effective date of Title VII), and (iii) the exporting
country (or in some instances its exporters) had to request the injury
test on or before January 2, 1983.
The countervailing duty order on ceramic tile from Mexico was
issued in 1982 and Mexico did not become a country under the Agreement
until April 23, 1985. Therefore, the court held that, in the absence of
an injury test and the statutory means to provide one, the Department
could not assess countervailing duties on ceramic tile and ordered the
Department to revoke the order effective April 23, 1985. Ceramica, 64
F.3d at 1583.
[[Page 68715]]
The Argentine Memorandum of Understanding
The effective date of the Understanding Between the United States
of America and the Republic of Argentina Regarding Subsidies and
Countervailing Duties (Argentine MOU), under which Argentina attained
the status of a ``country under the Agreement,'' was September 20,
1991. Therefore, in consideration of the Ceramica decision, on April 2,
1996, the Department initiated changed circumstances reviews of the
orders on Leather, Wool, OCTG and Cold-Rolled Steel from Argentina.
Changed Circumstances Reviews, 61 FR at 14553. The Department initiated
these reviews to determine whether Argentina's status as a ``country
under the Agreement'' affects its authority to assess countervailing
duties on unliquidated entries of subject merchandise occurring after
September 20, 1991. As part of this inquiry, the Department will
determine whether the requests for injury investigations received by
the U.S. International Trade Commission under section 753(a) of the Act
in connection with the countervailing duty orders covering Leather,
Wool, and OCTG from Argentina have any bearing on the Department's
authority to assess duties on entries occurring on or after January 1,
1995.
Scope of the Reviews
OCTG from Argentina.
Imports covered by this order include shipments of Argentine oil
country tubular goods. Oil country tubular goods include hollow steel
products of circular cross-section intended for use in the drilling of
oil or gas and oil well casing, tubing and drill pipe or carbon or
alloy steel, whether welded or seamless, manufactured to either
American Petroleum Institute (API) or proprietary specifications. The
scope covers both finished and unfinished OCTG. The products covered in
this review are provided for under item numbers of the Harmonized
Tariff Schedule (HTS): 7304.20.20, 7304.20.40, 7304.20.50, 7304.20.60,
7304.20.80, 7304.39.00, 7304.51.50, 7304.20.70, 7304.59.60, 7304.59.80,
7304.90.70, 7305.20.40, 7305.20.60, 7305.20.80, 7305.31.40, 7305.31.60,
7305.39.10, 7305.39.50, 7305.90.10, 7305.90.50, 7306.20.20, 7306.20.30,
7306.20.40, 7306.20.60, 7306.20.80, 7306.30.50, 7306.50.50, 7306.60.70,
7306.90.10. The HTS subheadings are provided for convenience and
Customs purposes. The written description remains dispositive.
Cold-Rolled Steel from Argentina. Imports covered by this order
include shipments of Argentine cold-rolled carbon steel flat products,
whether or not corrugated or crimped; whether or not painted or
varnished and whether or not pickled; not cut, not pressed, and not
stamped to non-rectangular shape; not coated or plated with metal; over
12 inches in width and under 0.1875 inches in thickness whether or not
in coils; as currently provided for under the following item numbers of
the HTS: 7209.11.00, 7209.12.00, 7209.13.00, 7209.14.00, 7209.21.00,
7209.22.00, 7209.23.00, 7209.24.00, 7209.31.00, 7209.32.00, 7209.33.00,
7209.34.00, 7209.41.00, 7209.42.00, 7209.43.00, 7209.44.00, 7209.90.00,
7210.70.00, 7211.30.50, 7211.41.70, 7211.49.50, 7211.90.00, 7212.40.50.
The HTS item numbers are provided for convenience and Customs purposes.
The written description remains dispositive.
Preliminary Results of Reviews / Intent To Terminate Administrative
Reviews
Unliquidated entries of subject merchandise which occurred on or
after September 20, 1991 and on or before December 31, 1994, involve
the same set of pertinent facts as the Department faced in connection
with the countervailing duty order on ceramic tile from Mexico.
First, at the time the countervailing duty orders on Mexico and
Argentina were issued, the requirement of an affirmative injury
determination under U.S. law was not applicable. Second, both countries
concluded similar agreements with the United States which resulted in
their becoming ``countries under the Agreement'' within the meaning of
former section 303(a)(1) of the Act. Third, at the time Mexico and
Argentina qualified as countries under the Agreement, the assessment of
countervailing duties on subsequent entries of dutiable merchandise
became dependent upon a finding of subsidization and injury in
accordance with section 701 of the Act. Fourth, none of the transition
rules in the statute can be applied to the subject entries.
Specifically, section 104 of the 1979 Act only applies to
countervailing duty orders issued before January 1, 1980. Also, there
is a question, at issue in the changed circumstances reviews, whether
section 753 of the Act applies to these orders. In all events, however,
it is clear that section 753 does not apply to entries occurring on or
before December 31, 1994.
Therefore, we preliminarily determine that the Department cannot
assess duties on entries made on or after September 20, 1991 and on or
before December 31, 1994. If these preliminary results are made final,
the Department will terminate these administrative reviews. However, we
intend to complete the pending 1991 administrative reviews of these two
orders in order to determine the appropriate countervailing duty
assessment rate for those 1991 entries made prior to September 20,
1991. The question of the Department's authority to assess duties on
unliquidated entries of OCTG made on or after January 1, 1995 remains
to be determined in the context of the ongoing changed circumstances
reviews.
Suspension of Liquidation
The suspension of liquidation for entries of Cold-Rolled Steel and
OCTG from Argentina made on or after January 1, 1991 and before
September 20, 1991 will continue pending the completion of the 1991
administrative reviews. The suspension of liquidation for entries of
OCTG from Argentina made on or after January 1, 1995 will continue, at
the cash deposit rate of zero. Because the countervailing duty order on
Cold-Rolled Steel was revoked effective January 1, 1995 (60 FR 40568),
the Department instructed Customs to discontinue the suspension of
liquidation for entries made on or after that date.
Public Comment
Interested parties may request a hearing not later than 10 days
after the date of publication of this notice. Interested parties may
submit written arguments in case briefs on these preliminary results
within 30 days of the date of publication. We request that parties
limit arguments in the case briefs to the issue of whether the
Department has the authority to assess countervailing duties on
shipments of OCTG and Cold-Rolled Steel from Argentina entered on or
after September 20, 1991 and on or before December 31, 1994. Rebuttal
briefs, limited to arguments raised in case briefs, may be submitted
seven days after the time limit for filing the case brief. Parties who
submit argument in this proceeding are requested to submit with the
argument (1) a statement of the issue, and (2) a brief summary of the
argument. Any hearing, if requested, will be held seven days after the
scheduled date for submission of rebuttal briefs. Copies of case briefs
and rebuttal briefs must be served on interested parties in accordance
with 19 C.F.R. Sec. 355.38.
The Department will publish the final results of these
administrative reviews, including the results of its analysis of
[[Page 68716]]
issues raised in any case or rebuttal brief or at a hearing.
These administrative reviews and notice are in accordance with
section 751(a)(1) of the Act (19 U.S.C. 1675(a)(1)).
Dated: December 20, 1996.
Robert S. LaRussa,
Acting Assistant Secretary for Import Administration.
[FR Doc. 96-33175 Filed 12-27-96; 8:45 am]
BILLING CODE 3510-DS-P