[Federal Register Volume 64, Number 145 (Thursday, July 29, 1999)]
[Notices]
[Pages 41085-41089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19446]


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DEPARTMENT OF COMMERCE


International Trade Administration

[A-351-505]
Preliminary Results of Full Sunset Review: Malleable Cast Iron Pipe 
Fittings From Brazil
AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.

ACTION: Notice of preliminary results of full sunset review: malleable 
cast iron pipe fittings from Brazil.

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SUMMARY: On January 4, 1999, the Department of Commerce (``the 
Department'') initiated a sunset review of the antidumping duty order 
on malleable cast iron pipe fittings from Brazil (64 FR 364) pursuant 
to section 751(c) of the Tariff Act of 1930, as amended (``the Act''). 
On the basis of a notice of intent to participate filed on behalf of 
domestic interested parties and subsequent adequate responses from both 
domestic and respondent interested parties, the Department is 
conducting a full review. As a result of this review, the Department 
preliminarily finds that revocation of the antidumping duty order would 
be likely to lead to continuation or recurrence of a dumping at the 
levels indicated in the Preliminary Results of Review section of this 
notice.

FOR FURTHER INFORMATION CONTACT: Scott E. Smith or Melissa G. Skinner, 
Office of Policy for Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th & Constitution, 
Washington, D.C. 20230; telephone: (202) 482-6397 or (202) 482-1560, 
respectively.

EFFECTIVE DATE: July 29, 1999.

Statute and Regulations

    This review is being conducted pursuant to sections 751(c) and 752 
of the Act. The Department's procedures for the conduct of sunset 
reviews are set forth in Procedures for Conducting Five-year 
(``Sunset'') Reviews of Antidumping and Countervailing Duty Orders, 63 
FR 13516 (March 20, 1998) (``Sunset Regulations''), and 19 C.F.R. Part 
351 (1998) in general. Guidance on methodological or analytical issues 
relevant to the Department's conduct of sunset reviews is set forth in 
the Department's Policy Bulletin 98:3--Policies Regarding the Conduct 
of Five-year (``Sunset'') Reviews of Antidumping and Countervailing 
Duty Orders; Policy Bulletin, 63 FR 18871 (April 16, 1998) (``Sunset 
Policy Bulletin'').

Scope

    Imports covered by this review are shipments of certain malleable 
cast iron pipe fittings, other than grooved, from Brazil. In the 
original order, these products were classified in the Tariff Schedules 
of the United States, Annotated (TSUSA), under item numbers 610.7000 
and 610.7400. These products are currently classifiable under item 
numbers 7307.19.90.30, 7307.19.90.60, and 7307.19.90.80 of the 
Harmonized Tariff Schedule of the United States (HTSUS). The HTSUS item 
numbers are provided for convenience and customs purposes. The written 
description remains dispositive.
    This order applies to all imports of certain malleable cast iron 
pipe fittings from Brazil.

History of the Order

    The Department issued a final determination of sales at less than 
fair value on March 31, 1986, finding a weighted-average margin of 5.64 
percent for Industria de Fundicao Tupy, S.A. (``Tupy''), and for all 
others (51 FR 10897). The antidumping duty order on malleable cast iron 
pipe fittings from Brazil was published in the Federal Register on May 
21, 1986 (51 FR 18640). Since that time the Department has conducted 
one administrative review of this order, which covered the period from 
May 1, 1993, to April 30, 1994.1
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    \1\ See Malleable Cast Iron Pipe Fittings, Other Than Grooved, 
From Brazil; Final Determination of Sales at Less Than Fair Value, 
51 FR 10897 (May 31, 1986); Antidumping Duty Order: Malleable Cast 
Iron Pipe Fittings From Brazil, 51 FR 18640 (May 21, 1986); and 
Malleable Cast Iron Pipe Fittings From Brazil; Final Results of 
Antidumping Duty Administrative Review, 60 FR 41876 (August 14, 
1995).
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Background

    On January 4, 1999, the Department initiated a sunset review of the 
antidumping duty order on malleable cast iron pipe fittings from Brazil 
(64 FR 364) pursuant to section 751(c) of the Act. On January 19, 1999, 
the Department received a Notice of Intent to Participate on behalf of 
the Cast Iron Pipe Fittings Committee and its members, Grinnell 
Corporation and Ward Manufacturing (collectively ``CIPFC''), within the 
applicable deadline specified in section 351.218(d)(1)(i) of the Sunset

[[Page 41086]]

Regulations. The CIPFC claimed interested party status under section 
771(9)(F) of the Act as an ad hoc trade association consisting entirely 
of U.S. manufacturers of malleable cast iron pipe fittings.
    We received a complete substantive response to the notice of 
initiation on February 3, 1999, on behalf of CIPFC. In its substantive 
response, CIPFC stated that both it and its two current members have 
been participants in both the Department's original investigation and 
in the sole administrative review conducted by the Department. 
2 We received a complete substantive response on behalf of 
Tupy on February 4, 1999. In its substantive response, Tupy claimed 
interested party status under section 771(9) of the Act, as a foreign 
producer of malleable cast iron pipe fittings. Tupy also asserted that, 
to the best of its knowledge, it has always accounted for 100 percent 
of the exports to the United States of pipe fittings from Brazil, both 
before and after the issuance of the order.
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    \2\ CIPFC's current members are Grinnell Corporation and Ward 
Manufacturing. The Committee previously consisted of five members, 
including Grinnell and Ward. The other three members have since gone 
out of business. CIPFC's members represent ``virtually'' all 
domestic production of malleable cast iron pipe fittings, other than 
grooved.
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    On February 8, 1999, we granted an extension to all parties to the 
deadline for filing rebuttal comments. We received rebuttal comments 
from Tupy and from CIPFC on February 11 and 12, 1999, respectively.
    Both Tupy and CIPFC claim that Tupy was, and remains, the only 
producer of malleable cast iron pipe fittings from Brazil. Therefore, 
Tupy accounted for significantly more than 50 percent of the value of 
total exports of the subject merchandise over the five calendar years 
preceding the initiation of the sunset review and the response of Tupy 
constituted an adequate response to the notice of initiation. Thus, 
because the Department received adequate responses from both domestic 
and foreign interested parties, we are conducting a full (240 day) 
review in accordance with section 351.218(e)(2)(i) of the Sunset 
Regulations.
    The Department determined that the sunset review of the antidumping 
duty order on malleable cast iron pipe fittings from Brazil is 
extraordinarily complicated. In accordance with section 751(c)(6)(C)(v) 
of the Act, the Department may treat a review as extraordinarily 
complicated if it is a review of a transition order (i.e., an order in 
effect on January 1, 1995). (See section 751(c)(6)(C) of the Act.) 
Therefore, on May 3, 1999, the Department extended the time limit for 
completion of the preliminary results of this review until not later 
than July 23, 1999, in accordance with section 751(c)(5)(B) of the 
Act.3
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    \3\ See Malleable Cast Iron Pipe Fittings From Brazil and 
Thailand: Extension of Time Limit for Preliminary Results of Five-
Year Reviews, 64 FR 23598 (May 3, 1999).
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Determination

    In accordance with section 751(c)(1) of the Act, the Department is 
conducting this review to determine whether revocation of the 
antidumping duty order would be likely to lead to continuation or 
recurrence of dumping. Section 752(b) of the Act provides that, in 
making this determination, the Department shall consider the weighted-
averaged dumping margins determined in the original investigation and 
subsequent reviews and the volume of imports of the subject merchandise 
for the period before and the period after the issuance of the 
antidumping duty order and shall provide to the International Trade 
Commission (``the Commission'') the magnitude of the margin of dumping 
likely to prevail if the order is revoked.
    The Department's preliminary determinations concerning continuation 
or recurrence of dumping and magnitude of the margin likely to prevail 
are discussed below. In addition, parties' comments with respect to 
continuation or recurrence of dumping and the magnitude of the margin 
likely to prevail are addressed within the respective sections below.

Continuation or Recurrence of Dumping

Party Comments

    In its substantive response, CIPFC argued that revocation of the 
antidumping duty order would likely result in the continuation or 
resumption of dumping of malleable cast iron pipe fittings from 
Brazil.4 CIPFC asserted that, since the imposition of the 
antidumping duty order in 1986, Tupy has continued dumping at margins 
well over a de minimis level. As support for this assertion, CIPFC 
argued that the Department's revision of Tupy's margin in the sole 
administrative review of this order, from 5.64 percent to 34.64 percent 
is evidence that there is likelihood of continuation or recurrence of 
dumping as Tupy has continued dumping with the discipline of an order 
in place.5
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    \4\ See CIPFC substantive response of February 3, 1999, page 6.
    \5\ See CIPFC substantive response of February 3, 1999, page 8.
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    With respect to whether imports of the subject merchandise have 
either fallen dramatically or ceased following the imposition of the 
antidumping duty order, CIPFC argued that import volumes dropped 
significantly after the order was put into place. CIPFC contended that, 
in 1984, prior to the imposition of the order, imports of the subject 
merchandise totaled 3,274,000 pounds. In 1985, imports decreased 
significantly, to 476,000 pounds, and then rose slightly in 1986 and 
1987 to 816,000 pounds and 762,000 pounds, respectively.6 
According to CIPFC, these data represent total imports of malleable 
cast iron pipe fittings from Brazil, but, since Tupy is the only known 
Brazilian exporter of the subject merchandise, it is reasonable to 
assume that these numbers represent Tupy's exports to the United States 
during those calendar years.
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    \6\ See Table 1 in CIPFC's substantive response of February 3, 
1999, page 9.
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    CIPFC also argued that import volumes in subsequent years gradually 
began to rise, although never managing to come close to the peak volume 
of 1984. In 1991, the total volume of imports of the subject 
merchandise was 721,385 pounds. This volume subsequently increased in 
1992, 1993, and 1994 to a range between 1.3 million pounds in 1992 and 
1.7 million pounds in 1994.7 CIPFC asserted that, following 
the 1995 administrative review in which the Department found that Tupy 
was dumping at a rate of 34.64 percent, imports of the subject 
merchandise from Brazil (and, accordingly, Tupy's exports of the 
subject merchandise) fell dramatically to 818 pounds and have only now 
begun to start again.
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    \7\ See Table 2 of CIPFC substantive response, page 10.
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    CIPFC concluded by arguing that the data, showing a decline in 
import volumes of malleable cast iron pipe fittings from Brazil 
accompanied by the continued existence of dumping margins after the 
order, provide a strong indication that Tupy will continue or resume 
dumping if the order is revoked.8 Therefore, CIPFC asserted 
that the Department should determine that there is a likelihood of 
continuation or recurrence of dumping if the order is revoked.
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    \8\ See CIPFC substantive response, page 10.
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    Tupy, in its substantive response of February 4, 1999, argued that 
the likely effects of revocation of the order on pipe fittings from 
Brazil would not be a continuation or recurrence of dumping by Tupy. 
Accordingly, because there is no other Brazilian producer and exporter 
of pipe fittings, Tupy asserted

[[Page 41087]]

that there is no other reason to expect that pipe fittings from Brazil 
will be dumped in the United States in the event the order is 
revoked.9
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    \9\ See Tupy substantive response of February 4, 1999, page 4.
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    Tupy explained in its substantive response that following the 
imposition of the incorrect and prohibitive best information available 
(BIA) rate of 34.64 percent in the administrative review, Tupy ceased 
exports of the subject merchandise to the United States in favor of 
other markets and other product lines. Tupy also asserted that it has 
recently begun to resume exports of pipe fittings to the United States. 
Tupy claims that it has no intention of dumping because it can now 
compete in the United States without dumping.
    In its rebuttal response of February 11, 1999, CIPFC argued that 
Tupy is still interested in the U.S. market and that Tupy's statement 
that it has no intention of dumping is nothing more than an 
unsubstantiated, self-serving statement and should be disregarded as 
such.10 According to CIPFC, Tupy has presented no credible 
basis for the Department to find that revocation of the antidumping 
duty order is not likely to lead to continuation or recurrence of 
dumping.11
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    \10\ See CIPFC rebuttal response of February 11, 1999, page 3, 
to Tupy's substantive response of February 4, 1999.
    \11\ See CIPFC rebuttal response of February 11, 1999, page 4.
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    Tupy did not address the issue of whether dumping was likely to 
continue were the order to be revoked in its rebuttal comments.

Department's Determination

    Drawing on the guidance provided in the legislative history 
accompanying the Uruguay Round Agreements Act (``URAA''), specifically 
the Statement of Administrative Action (``the SAA''), H.R. Doc. No. 
103-316, vol. 1 (1994), the House Report, H.R. Rep. No. 103-826, pt. 1 
(1994), and the Senate Report, S. Rep. No. 103-412 (1994), the 
Department issued its Sunset Policy Bulletin providing guidance on 
methodological and analytical issues, including the basis for 
likelihood determinations. The Department clarified that determinations 
of likelihood will be made on an order-wide basis (see section II.A.3 
of the Sunset Policy Bulletin). Additionally, the Department normally 
will determine that revocation of an antidumping duty order is likely 
to lead to continuation or recurrence of dumping where (a) dumping 
continued at any level above de minimis after the issuance of the 
order, (b) imports of the subject merchandise ceased after the issuance 
of the order, or (c) dumping was eliminated after the issuance of the 
order and import volumes for the subject merchandise declined 
significantly (see section II.A.3.a of the Sunset Policy Bulletin).
    As discussed in section II.A.3 of the Sunset Policy Bulletin, the 
SAA at 890, and the House Report at 63-64, the existence of dumping 
margins after the order, or the cessation of imports after the order, 
is highly probative of the likelihood of continuation or recurrence of 
dumping. If companies continue to dump with the discipline of an order 
in place, it is reasonable to assume that dumping would continue if the 
order were revoked. If imports cease after the order is issued, it is 
reasonable to assume that the exporters could not sell in the United 
States without dumping and that, to reenter the U.S. market, they would 
have to resume dumping. Since deposit rates above de minimis remain in 
effect for exports of malleable cast iron pipe fittings from Brazil, 
evidence suggests that exporters cannot sell in the U.S. market without 
dumping.
    With respect to whether imports of the subject merchandise ceased 
following the imposition of the original antidumping duty order, the 
Department preliminarily finds that imports of the subject merchandise 
to the United States declined dramatically from a high point of 
3,274,437 pounds (1485.28 metric tons) in 1984 to 761,050 pounds 
(345.21 metric tons), in 1987. Imports increased dramatically in 1988, 
exceeding 3 million pounds (1400 metric tons) and then fell again. 
However, following the 1995 issuance of the final results of the sole 
administrative review conducted by the Department, imports subsequently 
ceased and only in 1998 began to resume. Since Tupy is the only 
Brazilian producer of malleable cast iron pipe fittings, as stated in 
the substantive responses of both parties, it is reasonable to assume 
that these numbers accurately reflect Tupy's exports to the United 
States. Therefore, since dumping margins have continued over the life 
of the order, the Department preliminarily determines that dumping is 
likely to continue if the order were revoked.

Magnitude of the Margin

Party Comments

    In its February 3, 1999, substantive response, CIPFC argued that 
the Department should determine that the margin likely to prevail if 
the antidumping duty order were to be revoked is the more recent rate 
of 34.64 percent. According to CIPFC, the more recently calculated 
margin of 34.64 percent is more representative of Tupy's likely 
behavior if the Department revokes the order than the original rate of 
5.64 percent.12
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    \12\ See CIPFC substantive response of February 3, 1999, page 
11.
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    CIPFC argued that, since the imposition of the antidumping duty 
order in 1986, Tupy has been attempting to increase its share of the 
U.S. market for malleable pipe fittings. According to CIPFC, in 1986 
Tupy accounted for approximately 0.67 percent of the U.S. market or 0.8 
million pounds. CIPFC also argues that, by 1994, when the Department 
found a margin of 34.64 percent, Tupy had exported 1.75 million pounds 
or approximately twice the volume of its exports in 1986. Thus, 
according to the CIPFC, Tupy had been trying to gain a greater 
percentage of market share in what CIPFC termed a mature low-growth or 
no-growth market.13
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    \13\ See CIPFC substantive response of February 3, 1999, page 
12.
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    Additionally, CIPFC argued that Tupy attempted to secure the 5.64 
percent rate of the original investigation by not participating in the 
administrative review and forcing the Department to use BIA in 
determining the margin. Since the Department's normal procedure is to 
limit the BIA rate to the highest rate determined in the original 
investigation and since Tupy was the only company investigated, CIPFC 
asserted that Tupy believed that it could secure the 5.64 percent rate 
when it did not participate in the administrative review. Therefore, 
CIPFC contended that the use of the 5.64 percent rate in the context of 
this sunset review would permit Tupy to benefit from the very behavior 
that the Department sought to sanction in 1995. Therefore, the CIPFC 
concluded, the Department should find that a dumping margin of 34.64 
percent is a more accurate rate than the original rate, that it better 
reflects Tupy's likely dumping in the event of revocation, and that, 
therefore, it is the legally correct rate to provide to the 
Commission.14
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    \14\ See CIPFC substantive response of February 3, 1999, page 
13-14.
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    In its substantive response of February 4, 1999, Tupy argued that, 
pursuant to the Sunset Policy Bulletin, the correct margin to be 
applied to Tupy in the event of revocation of the antidumping duty 
order is the rate that was determined in the original investigation. 
Tupy asserted that the Department may not choose the higher margin from 
the final results of review issued in 1995 simply because that rate was 
determined more recently. Tupy

[[Page 41088]]

also argued that the record of this case does not justify the higher 
rate because Tupy asserts that it has not attempted to increase market 
share since the imposition of the order. Tupy argued, therefore, that 
the Department should follow its standard practice of determining that 
the margin likely to prevail if the order were revoked would be the 
margin from the original investigation, 5.64 percent.
    In its rebuttal, CIPFC argued that, since U.S. imports from Brazil 
increased while at the same time Tupy's margin also increased, it is 
reasonable to infer that Tupy was attempting to increase its market 
share between 1986 and 1995. 15 Thus, CIPFC asserted that 
Tupy increased exports by dumping in the mid-1980s and then, following 
the imposition of the order, decreased its imports to the United States 
substantially. CIPFC argued that, in the early 1990s, Tupy again 
attempted to gain market share and began increasing its exports to the 
United States by dumping at higher margins only to cease exporting when 
the Department determined that there was a new, higher dumping margin. 
Therefore, CIPFC asserted that the margin of dumping that will prevail 
if the order is revoked will be the higher margin of 34.64 percent.
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    \15\ See CIPFC rebuttal response of February 11, 1999, page 6.
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    In its rebuttal comments Tupy continued to argue that the 
Department should use the 5.64 percent margin from the original 
investigation. Tupy asserted that this is consistent with the 
Department's policy and practice. Citing to the final results of the 
expedited sunset review on the antidumping duty order on roller chain 
from Japan, Tupy asserted that, in order for the Department to consider 
a margin other than one determined in an original investigation, the 
domestic parties have the burden of affirmatively demonstrating that 
higher, more recent margins reflect a consistent pattern of behavior by 
respondents to obtain or increase market share. Tupy asserted the CIPFC 
has not met this burden. Further, Tupy asserted that it has never held 
a commercially significant share of the U.S. market. Tupy disputed the 
statistics concerning market share provided by CIPFC but argued 
nonetheless that, even if CIPFC's statistics were used, Tupy's share of 
the U.S. market was its highest in 1984 at 2.3 percent and that its 
market share was 1.18 percent and 1.28 percent in 1993 and 1994, 
respectively. Tupy asserted that the slight increase of 0.67 percent in 
its 1993 and 1994 market share over its 1986 market share hardly 
warrants selecting the 34.64 percent BIA rate.

Department's Determination

    In the Sunset Policy Bulletin, the Department stated that, 
consistent with the SAA and House Report, the Department normally will 
provide to the Commission a margin from the investigation because that 
is the only calculated rate that reflects the behavior of exporters 
without the discipline of an order or suspension agreement in place. 
16 Exceptions to this policy include the use of a more 
recently calculated margin, where appropriate, and consideration of 
duty absorption determinations.
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    \16\ See section II.B.1 of the Sunset Policy Bulletin.
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    In its substantive response, CIPFC urged the Department to 
determine that the magnitude of the margin likely to prevail if the 
order were revoked is 34.64 percent, which is the rate that was 
determined in the sole administrative review and the one that is 
currently in effect. CIPFC argued, in both its substantive response and 
in its rebuttal, that the Department may choose a higher, more recent 
margin. Specifically, the Sunset Policy Bulletin, at section II.B.2 
states that a company may choose to increase dumping in order to 
maintain or increase market share. As a result, increasing margins may 
be more representative of a company's behavior in the absence of an 
order. Therefore, the Department may, in response to an argument from 
an interested party, provide to the Commission a more recently 
calculated margin for a particular company where, for that particular 
company, dumping margins increased after the issuance of the order, 
even if the increase was a result of the use of BIA.
    As discussed in Final Results of Expedited Sunset Review: Stainless 
Steel Plate From Sweden, 63 FR 67658 (December 8, 1998), the Department 
intended to establish a policy of using the margin from the original 
investigation as a starting point, thus providing interested parties 
the opportunity and incentive to present data which would support a 
different estimate. Additionally, in Barium Chloride From the People's 
Republic of China, 64 FR 5633, 5635 (February 4, 1999), the Department 
determined that where there is an increase in imports corresponding to 
the increase in the dumping margin, the Department may determine that 
the higher rate is more representative of the behavior of the company 
without the discipline of an order in place.
    In the instant case, however, the Department finds that annual 
import volumes for the subject merchandise have fluctuated during the 
life of the order and no consistent pattern of behavior by Tupy can be 
discerned. From 1986, the year of the imposition of the order, through 
the period prior to the conclusion of the 1993-94 administrative 
review, the Department finds no pattern of consistently increasing 
imports of subject merchandise associated with increasing dumping 
margins. Imports fluctuated during this period, increasing and 
decreasing during a period when the deposit rate was constant. Imports 
of subject merchandise during this period were both above and below 
pre-order levels. In addition, estimates provided by Tupy concerning 
its U.S. market share during this period also indicate that there were 
fluctuations in its share of the U.S. market.
    Given the fluctuations over the life of the order, the Department 
finds no reason to believe that Tupy attempted to increase its U.S. 
market share through the increased dumping of subject merchandise. 
Because of this, the Department preliminarily finds that the use of a 
more recently calculated margin in its report to the Commission would 
be inappropriate. Therefore, we determine that the margins calculated 
in the original investigation best reflect the behavior of producers/
exporters without the discipline of the order and we find that the 
margins calculated in the original investigation are probative of the 
behavior of Brazilian producers/exporters of the malleable cast iron 
pipe fittings if the order were revoked. As such, if these results are 
adopted for the Department's final determination, we will report to the 
Commission the rate established for Tupy (as well as for all other 
producers/exporters of the subject merchandise) in the original 
investigation as contained in the Preliminary Results of Review section 
of this notice.

Preliminary Results of Review

    As a result of this review, the Department preliminarily finds that 
revocation of the antidumping duty order would be likely to lead to 
continuation or recurrence of dumping. The magnitude of the margin that 
is likely to prevail is 5.64 percent.
    Any interested party may request a hearing within 30 days of 
publication of this notice in accordance with 19 CFR 351.310(c). Any 
hearing, if requested, will be held on September 22, 1999. Interested 
parties may submit case briefs no later than September 13, 1999, in 
accordance with 19 CFR

[[Page 41089]]

351.309(c)(1)(i). Rebuttal briefs, which must be limited to issues 
raised in the case briefs, may be filed not later than September 20, 
1999. The Department will issue a notice of final results of this 
sunset review, which will include the results of its analysis of issues 
raised in any such comments, no later than November 30, 1999.
    This five-year (``sunset'') review and notice are in accordance 
with sections 751(c), 752, and 777(i)(1) of the Act.

    Dated: July 23, 1999.
Robert S. LaRussa,
Assistant Secretary for Import Administration.
[FR Doc. 99-19446 Filed 7-28-99; 8:45 am]
BILLING CODE 3510-DS-P