[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Notices]
[Pages 19309-19311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10243]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-201-817]


Oil Country Tubular Goods From Mexico; Notice of Termination of 
Antidumping Duty Administrative Review

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of termination of antidumping duty administrative 
review.

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EFFECTIVE DATE: April 21, 1997.

SUMMARY: On September 17, 1996, the Department of Commerce (``the 
Department'') published in the Federal Register (61 FR 48882) a notice 
announcing the initiation of an administrative review of the 
antidumping duty order on Oil Country Tubular Goods (``OCTG'') from 
Mexico. This review covered the periods August 11, 1995 through July 
31, 1996 for Drill Pipe and June 28, 1995 through July 31, 1996 for 
OCTG Other Than Drill Pipe. This review has now been terminated as a 
result of the withdrawal of the request for administrative review by 
the petitioners and the absence of entries into the U.S. of subject 
merchandise during the period of review by the only remaining party 
requesting review.

FOR FURTHER INFORMATION CONTACT: Samantha Denenberg or Linda Ludwig, 
Group III, Import Administration, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, 
Washington, D.C. 20230; telephone (202) 482-0413 or 482-3833, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On August 29, 1996, Hylsa S.A. de C.V. (``Hylsa'') requested a 
review of its sales. Additionally, petitioners requested a review of 
Tubos de Acero de Mexico, S.H. (``TAMSA''), Tuberia Nacional S.A. de 
C.V. (``TUNA''), and Hylsa. On October 4, 1996 and October 16, 1996 
TAMSA and TUNA respectively filed letters certifying to the Department 
that they did not export any subject merchandise that was entered for 
consumption into the United States during the period of review (POR). 
The Department sent no-shipment inquiries regarding TAMSA and TUNA to 
U.S. Customs on October 28, 1996. Customs did not indicate that there 
were any such entries. On December 9, 1996, Hylsa filed its response to 
sections B and C of the Department's questionnaire for the 1995-96 
review. On December 10, 1996, petitioners withdrew their review request 
as to all Mexican producers of OCTG, including Hylsa. On December 18, 
petitioners pointed out that Hylsa's December 9 questionnaire response 
disclosed for the first time the fact that Hylsa had no customs entries 
of OCTG during the POR. Hylsa has knowledge of entry dates of subject 
merchandise. Petitioners requested that the

[[Page 19310]]

Department terminate the review as to Hylsa for this reason. On 
December 26, Hylsa submitted comments responding to that request.
    Petitioners cite Silicon Metal from Brazil: Final Results of 
Antidumping Duty Administrative Review (``92-93 Silicon Metal Final''), 
61 Fed. Reg. 46763, 46765 (September 5, 1996) as the precedent to this 
case. The 92-93 Silicon Metal Final findings stated that review of a 
margin may be based on sales during a POR, rather than the prices of 
entries during the POR, when there are entries during the POR. All 
respondents in the 92-93 Silicon Metal Final had at least one 
consumption entry into U.S. Customs territory during the POR (61 FR At 
46765). Hylsa, in contrast, had no such entries during the POR. Without 
entries during the POR, there is nothing upon which duties determined 
in the course of the review may be assessed.
    Hylsa argued that petitioners' request for termination of the 
review was based on a misreading of the antidumping statute and was 
inconsistent with the Department's regulations and the Department's 
past decisions. Hylsa stated that the Department was required by its 
statute and regulations to conduct the review which it has requested in 
order to determine a deposit rate based on Hylsa's own data, and 
suggested that the Department use, for this purpose, Hylsa's sales 
during the POR.

Analysis

    Hylsa first argues that Section 751(a)(1) of the Tariff Act 
requires the Department to conduct a review whenever, as in this case, 
a request for review has been received. Hylsa's argument, however, 
ignores the context of the administrative review provision upon which 
it relies. Section 751(a) is entitled ``Periodic Review of Amount of 
Duty.'' The other relevant portions of 751(a)(1) provide that if, 
during the annual anniversary opportunity to request review, ``a 
request for such a review has been received,'' the Department shall, 
when the requested review is of an antidumping order, ``review and 
determine, (in accordance with paragraph (2)), the amount of any 
antidumping duty,'' and (in a section applying to all administrative 
reviews) ``shall publish in the Federal Register the results of such 
review, together with notice of any duty to be assessed, estimated duty 
to be deposited, or investigation to be resumed.'' Tariff Act of 1930, 
as amended, Sec. 751(a), 19 U.S.C. Sec. 1675(a) (emphasis added).
    Thus, the request which requires the Department to conduct an 
administrative review, is a request for a ``review of amount of duty,'' 
not a request for a review solely of the amount of estimated duty to be 
deposited. Further, upon a request for ``such a review,'' the 
Department is directed to conduct at section 751(a)(1)(B) is also a 
review of ``the amount of any antidumping duty.'' There is no 
requirement here, either, that the Department independently review the 
amount of the estimated duty deposit. Rather, the review is to be 
conducted ``in accordance with paragraph (2).'' Section 751(a)(2) of 
the Act specifies that, for the purposes of a review under section 
751(a)(1)(B), the Department shall determine ``the normal value and 
export price (or constructed export price) of each entry of the subject 
merchandise, and * * * the dumping margin for each such entry.'' 19 
U.S.C. Sec. 1675(A)(2)(A)(I) (emphasis added). In addition, section 
1675(a)(2)(C) requires that these determinations shall be the basis for 
both the assessment of antidumping duties and the deposit of estimated 
antidumping duties. Because Hylsa had no consumption entries during the 
POR, any margin which were to be calculated based upon Hylsa's sales 
during the POR would not be applied to any entries. Thus, there is no 
``amount of duty'' to review, and there is no requirement under section 
751(a) for the Department to grant Hylsa's request for review for the 
sole purpose of reviewing the rate of estimated duty deposit. We note 
that the Department clearly stated, in the notice of opportunity to 
request a review of the antidumping order on OCTG, that a review would 
be initiated based on ``a request for review of entries covered by an 
order or finding listed in this notice and for the period identified 
above * * *'' Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity to Request Administrative Review, 
61 FR 41,768, at 41,771 (August 12, 1996) (emphasis added).
    Hylsa has entries during the 1996-1997 POR and can request a review 
of those entries during the appropriate anniversary month. To the 
extent that the ``all others'' cash deposit rate exceeds Hylsa's 
calculated margin for those 1996-1997 entries, it will receive a 
refund, with interest.
    Hylsa also argues that the Department's regulations require that we 
conduct a review at this time in order to allow them to obtain a 
company-specific duty deposit rate. Hylsa contends that Section 353.22 
of the regulations states that the Department ``will'' conduct a review 
and issue preliminary and final results whenever a timely request for 
review has been made. Hylsa's regulatory argument suffers from the same 
flaw as its statutory argument. Section 353.22 construes the 
administrative review provisions of the statute; thus, the review 
provided for is the same review of antidumping duty referred to in the 
statute. The regulatory provisions of Section 353.22(c) relied on by 
Hylsa deal with procedural time deadlines for initiation, verification, 
and issuance of preliminary and final determinations in such reviews of 
antidumping duty, and create no new rights to reviews for other 
purposes.
    Finally, Hylsa argues that the Department's practice of reviewing 
sales during the POR requires that it conduct a review of sales during 
the 1995-1996 POR despite the fact that it had no entries during that 
period. We note, however, that the Department's AD questionnaire 
clearly instructed respondents to report U.S. sales entered during the 
POR. Thus, with respect to this case the Department's intent was always 
to review entries rather than sales. Respondent never raised its lack 
of entries as an issue for the Department's consideration prior to the 
submission of its response.
    The administrative and judicial precedents cited by Hylsa in its 
comments of December 26 are not on point. These cases support the 
proposition that Commerce can base its margin calculation on sales 
during the POR rather than entries during the POR; they do not address 
whether any review at all may proceed in the absence of any entries to 
which the resultant margin would be applied. In Portable Electric 
Typewriters from Japan, 56 FR 56393, 56397 (Nov. 4, 1991), Commerce 
analyzed sales during the POR, but applied the results to entries 
during the POR. Color Picture Tubes from Japan, 55 FR 37915, 37917-18 
(September 14, 1990), Gray Portland Cement from Mexico, 58 FR 25803, 
25807 (Apr. 28, 1993), and Forklift Trucks from Japan, 57 FR 3167, 
3177-78 (January 28, 1992) all stand only for the principle that there 
need not be an exact correspondence between the sales upon which the 
margin calculation is based and the entries to which that margin 
calculation is applied for assessment purposes. As noted above, this 
corresponds to the Department's position regarding which sales it will 
review in calculating a margin for assessment purposes; these cases 
also do not address whether a review may proceed in the absence of any 
entries to which the resultant margin would be applied. Finally, Asahi 
Chemical v. United States, 548 F. Supp. 1261 (CIT 1982), does not 
address the question

[[Page 19311]]

raised by Hylsa's request for a sales-based no-entry review, because it 
construed an earlier version of the statute which required that the 
Department review every case every year. Judicial speculation as to how 
Congress might have dealt with the problem of conducting a statutorily 
required review in a case in which there were no entries is no longer 
relevant, now that such reviews are no longer required by law.
    Because petitioners have withdrawn their request for review of all 
parties for which review was requested for the 95-96 POR, and because 
the only remaining firm requesting review (Hylsa) made no entries into 
the customs territory of the United States during that POR, the 
Department is therefore terminating this review.

Notification of Interested Parties

    This notice also serves as a reminder to parties subject to 
administrative protective order (APO) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR Sec. 353.34(d). Timely written 
notification of return/destruction of APO materials or conversion to 
judicial protective order is hereby requested. Failure to comply with 
the regulations and the terms of an APO is a sanctionable violation. 
Timely written notification of the return/destruction of APO materials 
or conversion to judicial protective order is hereby requested.
    This administrative review and notice are in accordance with 
Section 751 (a)(1) of the Tariff Act (19 U.S.C. Sec. 1675(a)(1)) and 19 
CFR Sec. 353.22.

    Dated: April 14, 1997.
Joseph A. Spetrini,
Deputy Assistant Secretary, Enforcement Group III.
[FR Doc. 97-10243 Filed 4-18-97; 8:45 am]
BILLING CODE 3510-DS-P