[Federal Register Volume 64, Number 70 (Tuesday, April 13, 1999)]
[Notices]
[Pages 17995-17998]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-9195]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-580-811]


Steel Wire Rope From the Republic of Korea; Final Results of 
Antidumping Duty Administrative Review and Partial Rescission of 
Antidumping Duty Administrative Review

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

ACTION: Final Results of Antidumping Duty Administrative Review and 
Partial Rescission of Antidumping Duty Administrative Review.

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SUMMARY: On December 8, 1998, the Department of Commerce published the 
preliminary results and partial rescission of its 1997-98 
administrative review of the antidumping duty order on steel wire rope 
from the Republic of Korea (63 FR 67662). The review covers 16 
manufacturers/exporters for the period March 1, 1997, through February 
28, 1998. Based on our analysis of the comments received, no changes in 
the calculated margin for Kumho Wire Rope Mfg. Co., Ltd. are required. 
We have, however, changed the adverse facts available margin.

EFFECTIVE DATE: April 13, 1999.

FOR FURTHER INFORMATION CONTACT: John Brinkmann at (202) 482-5288 or 
Dennis McClure at (202) 482-3530, Import Administration, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Applicable Statute and Regulations

    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's (the 
Department's) regulations are to the regulations codified at 19 CFR 
Part 351 (1998).

Background

    On December 8, 1997, the Department published in the Federal 
Register the preliminary results and partial rescission of its 1997-98 
administrative review of the antidumping duty order on steel wire rope 
from the Republic of Korea. We gave interested parties an opportunity 
to comment on our preliminary results. The petitioner, the Committee of 
Domestic Steel Wire Rope and Specialty Cable Manufacturers, filed a 
case brief. There was no request for a hearing. We have conducted this 
administrative review in accordance with section 751 of the Act.

Scope of Review

    The product covered by this review is steel wire rope. Steel wire 
rope encompasses ropes, cables, and cordage of iron or carbon steel, 
other than stranded wire, not fitted with fittings or made up into 
articles, and not made up of brass-plated wire. Imports of these 
products are currently classifiable under the following Harmonized 
Tariff Schedule of the United States (HTSUS) subheadings: 7312.10.9030, 
7312.10.9060, and 7312.10.9090. Excluded from this order is stainless 
steel wire rope, i.e., ropes, cables and cordage other than stranded 
wire, of stainless steel, not fitted with fittings or made up into 
articles, which is classifiable under HTSUS subheading 7312.10.6000. 
Although HTSUS subheadings are provided for convenience and customs 
purposes, the written description of the scope of this order is 
dispositive.

Partial Rescission

    As noted in the Preliminary Results, between April and August 1998, 
Dae Heung Industrial (Dae Heung), Dae Kyung Metal (Dae Kyung), Korea 
Sangsa, Myung Jin, and TSK Korea informed the Department that they had 
no shipments of the subject merchandise to the United States during the 
period of review (POR), i.e., March 1, 1997, through February 28, 1998. 
In addition, information on the record shows that Boo Kook, Hanboo Wire 
Rope (Hanboo), Seo Hae Industrial (Seo Hae), and Seo Jin were no longer 
in operation and that, with the exception of Seo Hae, they did not 
receive our questionnaire. Using information from the Customs Service, 
we have confirmed that none of these companies had shipments of subject 
merchandise to the United States during the POR. Therefore, in 
accordance with section 351.213(d)(3) of the Department's regulations 
and consistent with Departmental practice, we are rescinding our review 
of Boo Kook, Dae Heung, Dae Kyung, Hanboo, Korea Sangsa, Myung Jin, Seo 
Hae, Seo Jin and TSK Korea for this POR. See, e.g., Certain Welded 
Carbon Steel Pipe and Tube from Turkey: Final Results and Partial 
Rescission of Antidumping Administrative Review, 63 FR 35191 (June 29, 
1998) and Certain Fresh Cut Flowers From Colombia; Final Results and 
Partial Rescission of Antidumping

[[Page 17996]]

Duty Administrative Review, 62 FR 53287, 53288 (October 14, 1997).

Use of Facts Available

    In the preliminary results of this review, we determined, in 
accordance with section 776(a) of the Act, that the use of facts 
available is appropriate for Dong-Il Steel (Dong Il), Dong Young, 
Jinyang Wire Rope (Jinyang), Kwangshin Rope, Yeonsin Metal (Yeonsin), 
and Sungsan Special Steel Processing (Sungsan), since they did not 
respond to our antidumping questionnaire. None of these parties 
commented on the preliminary results, nor have any arguments been 
presented which would cause us to reconsider the appropriateness of 
assigning margins based on facts available in the final results.
    Over the course of this proceeding, the Department has faced a 
pattern of continuous non-compliance on the part of a number of 
uncooperative respondents 1 that received facts available. 
In this review, we continue to face a pattern of non-compliance by a 
number of non-responding companies. Therefore, we have concluded that 
the magnitude of the rate in place for the three prior reviews, as well 
as the rate applied for the preliminary results in this review, does 
not offer the adequate incentive to induce the respondents to cooperate 
in the proceeding. Moreover, if and when an interested party requests a 
review of Korean steel wire rope companies not previously reviewed, the 
Department needs to have in place a potential facts available rate that 
is sufficiently adverse to induce the cooperation of these companies.
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    \1\ We have applied facts available to seven companies in the 
1992/1994 review, five companies in the 1994/1995 review, three 
companies in the 1995/1996 review, four companies in the 1996/1997 
review, and six companies in this review (1997/1998).
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    The Statement of Administrative Action (SAA) recognizes the 
importance of facts available as an investigative tool in antidumping 
duty proceedings. The Department's potential use of facts available 
provides the only incentive to foreign exporters and producers to 
respond to the Department's questionnaires. See SAA at 868. Section 
776(b) of the Act states that the Department may draw an adverse 
inference where the party has not acted to the best of its ability to 
comply with the requests for necessary information. The Department 
applies adverse inferences to ensure that the party does not obtain a 
more favorable result by failing to cooperate than if it had cooperated 
fully. One factor the Department considers in applying facts available 
is the extent to which a party may benefit from its own lack of 
participation. See SAA at 870.
    In the 1996/1997 review, we invited interested parties to supply 
specific data that the Department could consider in the event that we 
chose to establish a facts available rate that would be more 
appropriate to that segment of the proceeding. In response to this 
request for information, the petitioner, in its case brief, requested 
that we use the simple average of the dumping margins from the petition 
as adverse facts available (yielding a margin of 136.72 percent). The 
respondents did not comment on this issue.
    As we did in the 1996/1997 administrative review, in order to fully 
consider this issue, we placed a copy of the original petition and the 
amendment to the petition from the investigation on the record of this 
administrative review (1997/1998 administrative review). After further 
analysis of the petition, and in light of the non-compliance by five 
companies, we again re-examined the bases for the initial dumping 
allegation. Based on this re-examination, we continue to find that the 
price-to-price sales used in the petition calculation are appropriate 
for use as adverse facts available in this review and have increased 
the adverse facts available rate from 13.79 percent to 136.72 percent 
as described in Comment 1.
    Section 776(c) of the Act provides that the Department shall in 
using facts available, to the extent practicable, corroborate secondary 
information from independent sources reasonably at its disposal. The 
SAA provides that ``corroborate'' means that the Department will 
satisfy itself that the secondary information to be used has probative 
value. See H.R. Doc. 316, Vol. 1, 103d Cong., 2d sess. 870 (1994). To 
corroborate secondary information, the Department will, to the extent 
practicable, examine the reliability and relevance of the information 
to be used. However, where corroboration is not practicable, the 
Department may use uncorroborated information. See Notice of Final 
Results and Partial Rescission of Antidumping Duty Administrative 
Review: Certain Pasta from Turkey, 63 FR 68429 (December 11, 1998).
    To corroborate the export prices in the petition, we looked at the 
Customs Service import statistics from 1991 for the HTSUS subheadings 
7312.10.9030, 7312.10.9060, and 7312.10.9090. However, we concluded 
that the Customs Service data was not comparable to the prices in the 
petition, because the Customs Service data encompasses a wide range of 
steel wire rope products, while the sales in the petition consist of a 
small number of specific product types. With regard to the normal 
values used in the petition's margin calculation, we were provided with 
no useful information by interested parties, and are aware of no other 
independent sources of information which would assist us in this aspect 
of the corroboration process.
    Notwithstanding the difficulties encountered in our attempts to 
corroborate the information from the petition, the Department has no 
evidence that suggests that the margins in the petition do not have 
probative value. Accordingly, we determine that the information from 
the petition is still the most appropriate basis for facts available. 
We note that the SAA specifically states that ``the fact that 
corroboration may not be practicable in a given circumstance will not 
prevent the agencies from applying an adverse inference under 
subsection (b).'' See SAA at 870. Moreover, the SAA emphasizes that the 
Department need not prove that the facts available are the best 
alternative information. See SAA at 869.
    In this instance, as discussed below in Comment 1, we have no 
reason to believe that the application of the average petition margin 
for Korean steel wire rope as the adverse facts available rate is 
inappropriate. Therefore, for the final results, we are assigning Dong-
Il, Dong Young, Jinyang, Sungsan, and Yeonsin the rate of 136.72 
percent as adverse facts available. In addition, as discussed in 
Comment 2, we are continuing to assign Kwangshin Rope a rate of 1.51 
percent based on the all others rate as a non-adverse facts available 
rate. See also the Department's April 7, 1999, Memorandum from John 
Brinkmann to Richard W. Moreland regarding application of facts 
available.

Comparisons

    To determine whether sales of steel wire rope to the United States 
were made at less than normal value for Kumho, we compared the export 
price to the normal value. We made no changes in the margin calculation 
from the preliminary results of this review.

Analysis of Comments Received

Comment 1: Application of Adverse Facts Available to Non-responding 
Companies

    The petitioner argues that the adverse facts available rate of 
13.79 percent established in the final results of the 1996/1997 review 
(see Steel Wire Rope from the Republic of Korea; Final Results of 
Antidumping Duty

[[Page 17997]]

Administrative Review and Revocation in Part of Antidumping Duty Order, 
63 FR 17986, 17987 (April 13, 1998)) and applied to uncooperative 
respondents in the preliminary results of this review should be 
adjusted to fully reflect the dumping margins calculated in the 
antidumping petition (see Preliminary Results). The petitioner explains 
that when the Department calculated the current adverse facts available 
rate for the final results of the 1996/1997 review, the Department used 
an average of the rates in the petition, after excluding certain rates 
that pertained to wire rope manufactured to Military Specification (Mil 
Spec.). The petitioner argues that a respondent ``should not find 
itself in a better position as a result of its noncompliance than it 
would have had it provided the Department with complete, accurate and 
timely information,'' citing Silicon Metal From Argentina: Final 
Results of Antidumping Duty Administrative Review, 58 FR 65336, 65338 
(December 14, 1993) and Olympic Adhesives, Inc. v. United States, 899 
F.2d 1565, 1571-72 (Fed. Cir. 1990), (explaining that parties should 
not be allowed to control the magnitude of the dumping margin by 
selectively providing the Department with information).
    The petitioner asserts that the Department should include all the 
rates in the petition for the adverse facts available calculation for 
the current review. According to the petitioner, some of the sales 
excluded by the Department were not labeled as wire rope manufactured 
to Mil Spec. Additionally, the petitioner argues that the Department 
should include the sales labeled as Mil Spec., because these sales were 
not necessarily ``certified'' as Mil Spec. The petitioner asserts that, 
regardless of whether the manufacturers were certified to sell Mil 
Spec. wire rope in the United States, Kumho in this review, and two 
other companies in prior reviews, sold products manufactured to Mil 
Spec.

DOC Position

    We agree with the petitioner that we should base the calculation of 
the adverse facts available margin on the average of all rates provided 
in the petition. The highest rate ever calculated for this case was 
1.51 percent. Thus during the investigation and until the 1996/1997 
review, the adverse facts available margin was 1.51 percent. Based upon 
a history of non-compliance by respondents in prior reviews, we 
determined in the 1996/1997 review that the rate was not sufficiently 
adverse to encourage compliance. See Steel Wire Rope from the Republic 
of Korea; Final Results of Antidumping Duty Administrative Review and 
Revocation in Part of Antidumping Duty Order, 63 FR 17986 (April 13, 
1998), Hot-Rolled Flat-Rolled Carbon Quality Steel Products from Japan, 
64 FR 8291 (February 19, 1999) and Hot-Rolled Flat-Rolled Carbon 
Quality Steel Products from Brazil, 64 FR 8299 (February 19, 1999). 
Therefore, we looked to the petition for information to support an 
adverse facts available rate that would encourage respondents to 
participate in future reviews.
    When reviewing the petition prices and the evidence in the record 
for the 1996/97 review, we determined that Korean producers manufacture 
steel wire rope which differs significantly from steel wire rope built 
to the more demanding Mil Spec. Since information in the petition 
indicated that some of the price-to-price comparisons involved Mil 
Spec. sales, we excluded those sales from our calculation. This 
determination was consistent with Department's practice of excluding 
from the calculation of the adverse facts available rate a rate which 
is unrepresentative of the industry sales (see Fresh Cut Flowers from 
Mexico; Final Results of Antidumping Duty Administrative Review, 61 FR 
40604, 40606 (August 5, 1996)).
    As explained in the Use of Facts Available section above, 
application of adverse facts available in this administrative review is 
appropriate for Dong-Il, Dong Young, Jinyang, Yeonsin, and Sungsan, 
since they received and did not respond to our antidumping 
questionnaire. Furthermore, the record indicates that these companies 
are still operating. Therefore, based upon the information currently in 
the record and the continued non-compliance of respondents in this 
proceeding, it appears that the rate applied in the 1996/1997 review is 
no longer the appropriate rate for the facts available margin. First, 
evidence in the current review indicates that, regardless of whether 
Korean steel wire rope manufacturers were certified to sell Mil Spec. 
steel wire rope in the United States, at least one company did in fact 
export to the United States merchandise produced to Mil Spec. in 
significant quantities during the POR. Thus, there is no indication 
that Mil Spec. products are unrepresentative of industry sales from 
Korea. Second, based upon the continued non-compliance of respondents 
in this proceeding, we find that the margin of 13.79 percent is not 
sufficiently adverse to encourage compliance.
    As we have determined that the petition provides an appropriate 
basis for adverse facts available data, and that we have no further 
indication that any of the price-to-price comparisons in the petition 
are unrepresentative, we find that it is proper to rely on all 52 
transactions set forth in the petition as the basis for adverse facts 
available. We have determined, based upon the evidence on the record of 
this current review, that a simple average of all 52 rates in the 
petition would be sufficiently adverse to encourage compliance by 
exporters, and not unrepresentative of industry sales. The revised rate 
used as adverse facts available for the final results is 136.72 
percent.

Comment 2: Application of Facts Available to a Closed Company

    The petitioner argues that Kwangshin Rope failed to cooperate and 
should be subject to an adverse facts available rate to the same extent 
as the other uncooperative respondents (see Comment 1). Even though 
Kwangshin Rope was closed, the petitioner asserts that some or all of 
the required information for a response to the Department's 
questionnaire is still in possession of a successor, receiver or 
holding company. Thus, the petitioner states that Kwangshin Rope did 
not act to the best of its ability to comply with the Department's 
request for information (citing Antidumping Duties; Countervailing 
Duties, Final Rule, 62 FR 27296, 27340 (May 19, 1997)).
    The petitioner further asserts that it is not clear whether there 
was an absence of bad faith on the part of Kwangshin Rope and that the 
Department has clear authority to make an adverse inference. The 
petitioner argues that there is clear and compelling logic in support 
of an adverse inferences since the deposit and payment of antidumping 
duties are the responsibility of the U.S. importer. In addition, the 
petitioner states that Kwangshin Rope was an uncooperative respondent 
in the 1992/1994 and 1994/1995 administrative reviews.

DOC Position

    We disagree that Kwangshin Rope failed to cooperate and should be 
given an adverse facts available rate. Section 776(b) of the Act states 
that an adverse inference is applied only when ``an interested party 
has failed to cooperate by not acting to the best of its ability.'' 
Thus, we do not generally apply adverse facts available where the 
record indicates that the respondent did not receive our questionnaire. 
See, e.g., Notice of Preliminary Determination of Sales at Less Than 
Fair Value: Static

[[Page 17998]]

Random Access Memory Semiconductors from Taiwan (SRAMS from Taiwan) 62 
FR 51442, (Oct. 1, 1997), decision confirmed in Final Determination of 
SRAMS from Taiwan, and Queen's Flowers de Columbia v. United States, 
Slip Op. 97-120 (CIT Aug. 25, 1997) (the use of adverse ``best 
information available'' was unwarranted where the respondent did not 
receive a questionnaire the Department sent to an incorrect address). 
In this review, Kwangshin Rope's questionnaire was returned because the 
company was closed. Therefore, in accordance with our practice, it 
would be inappropriate to assign an adverse facts available rate to a 
company which is not capable of rebutting an inference of adverse facts 
available. For the final results, we have continued to apply the all 
others rate as facts available for Kwangshin Rope.

Final Results of Review

    We determine the following margins exist for the period March 1, 
1997, through February 28, 1998:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
Dong-Il Steel Manufacturing Co., Ltd.......................      *136.72
Dong Young.................................................      *136.72
Jinyang Wire Rope, Inc.....................................      *136.72
Kumho Wire Rope Mfg. Co., Ltd..............................         0.25
Kwangshin Rope.............................................       **1.51
Sungsan Special Steel Processing...........................      *136.72
Yeonsin Metal..............................................     *136.72
------------------------------------------------------------------------
* Adverse facts available rate based on information provided in petition
 
** Non-adverse facts available rate based on the all others rate.

    The Department shall determine, and the Customs Service shall 
assess, antidumping duties on all appropriate entries. In accordance 
with 19 CFR 351.212 (b)(1), we have calculated importer-specific 
assessment rates by dividing the dumping margin found on the subject 
merchandise examined by the entered value of such merchandise. We will 
direct the Customs Service to assess antidumping duties by applying the 
assessment rate to the entered value of the merchandise entered during 
the POR, except where the assessment rate is de minimis (see 19 CFR 
351.106(c)(2)). The Department will issue appraisement instructions on 
each exporter directly to the Customs Service.
    Furthermore, the following deposit requirements will be effective 
for all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication date of the 
final results of this administrative review, as provided by section 
751(a)(1) of the Act: (1) The cash deposit rates for the other reviewed 
companies will be those rates established above (except that, if the 
rate for a firm is de minimis, i.e., less than 0.5 percent, a cash 
deposit of zero will be required for that firm); (2) for previously 
reviewed or investigated companies not listed above, the cash deposit 
rate 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 less-than-fair-value (LTFV) 
investigation, but the manufacturer is, the cash deposit rate will be 
the rate 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 or any previous review or the LTFV 
investigation, the cash deposit rate will be 1.51 percent, the ``all 
others'' rate established in the LTFV investigation (58 FR 11029).
    These deposit requirements shall remain in effect until publication 
of the final results of the next administrative review.
    This notice serves as a final reminder to importers of their 
responsibility 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 notice also serves as a reminder to parties subject to 
administrative protective orders (APOs) of their responsibility 
concerning the disposition of proprietary information disclosed under 
APO in accordance with 19 CFR 353.34(d)(1). Timely written notification 
of the 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. This 
determination is issued and published in accordance with sections 
751(a)(1) and 777(i)(1) of the Act.

    Dated: April 7, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-9195 Filed 4-12-99; 8:45 am]
BILLING CODE 3510-DS-P