[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