[Federal Register Volume 64, Number 232 (Friday, December 3, 1999)]
[Notices]
[Pages 67858-67861]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31429]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-588-806]
Final Results of Expedited Sunset Review: Electrolytic Manganese
Dioxide From Japan
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
[[Page 67859]]
ACTION: Notice of final results of expedited sunset review:
Electrolytic manganese dioxide from Japan.
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SUMMARY: On May 3, 1999, the Department of Commerce (``the
Department'') initiated a sunset review of the antidumping duty order
on electrolytic manganese dioxide from Japan (64 FR 23596) 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 and adequate substantive
comments filed on behalf of domestic interested parties and inadequate
response (in this case, no response) from respondent interested
parties, the Department determined to conduct an expedited review. As a
result of this review, the Department finds that revocation of the
antidumping duty order would be likely to lead to continuation or
recurrence of dumping at the levels indicated in the Final Results of
Review section of this notice.
FOR FURTHER INFORMATION CONTACT: Darla D. Brown or Melissa G. Skinner,
Office of Policy for Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
3207 or (202) 482-1560, respectively.
EFFECTIVE DATE: December 3, 1999.
Statute and Regulations
This review was 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 CFR Part 351 (1999)
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, FR 18871 (April 16, 1998) (``Sunset Policy
Bulletin'').
Scope
The merchandise subject to this antidumping duty order is
electrolytic manganese dioxide (``EMD''). EMD is manganese dioxide
(MnO2) that has been refined in an electrolysis process. The
subject merchandise is an intermediate product used in the production
of dry-cell batteries. EMD is sold in three physical forms, powder,
chip, or plate, and two grades, alkaline and zinc chloride. EMD in all
three forms and both grades is included in the scope of the order.
There has been one scope clarification with regard to EMD from
Japan. On January 6, 1992, the Department ruled that high-grade
chemical manganese dioxide (CMD-U) is within the scope of the order.\1\
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\1\ See Electrolytic Manganese Dioxide from Japan; Final Scope
Ruling, 57 FR 395 (January 6, 1992).
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This merchandise is currently classifiable under the Harmonized
Tariff Schedule (``HTS'') item number 2820.10.0000. The HTS item number
is provided for convenience and customs purposes. The written
description remains dispositive.
History of the Order
The Department, in its final determination of sales at less than
fair value (``LTFV''), published two company-specific weighted-average
dumping margins as well as an ``all others'' rate (54 FR 8778, March 2,
1989). The antidumping duty order on EMD from Japan was published in
the Federal Register on April 17, 1989 (54 FR 15244). Since that time,
the Department has conducted three administrative reviews.2
This sunset review covers imports from all known Japanese producers/
exporters. To date, the Department has issued no duty-absorption
findings in this case.
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\2\ See Final Results of Antidumping Duty Administrative Review:
Electrolytic Manganese Dioxide From Japan, 58 FR28551 (May 14,
1993), and Final Results of Antidumping Duty Administrative Reviews:
Electrolytic Manganese Dioxide From Japan, 59 FR 53136 (October 21,
1994).
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Background
On May 3, 1999, the Department initiated a sunset review of the
antidumping duty order on EMD from Japan (64 FR 23596), pursuant to
section 751(c) of the Act. The Department received a notice of intent
to participate on behalf of Chemetals, Inc. (``Chemetals''), and Kerr-
McGee Chemical LLC (``KMC'') (collectively, ``domestic interested
parties'') on May 18, 1999, within the deadline specified in section
351.218(d)(1)(i) of the Sunset Regulations. We received a complete
substantive response from Chemetals and KMC on June 2, 1999, within the
30-day deadline specified in the Sunset Regulations in section
351.218(d)(3)(i). Both Chemetals and Kerr-McGee claimed interested-
party status pursuant to section 771(9)(C) of the Act as U.S. producers
of a like product. In addition, both Chemetals and KMC stated that they
participated in the original investigation and every segment of the
proceeding since the original investigation. We did not receive any
response from respondent interested parties to this proceeding. As a
result, pursuant to section 351.218(e)(1)(ii)(C) of the Sunset
Regulations, the Department determined to conduct an expedited, 120-
day, review of this order.
In accordance with section 751(c)(5)(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). On September 7, 1999, the Department determined that the sunset
review of the antidumping duty order on EMD from Japan is
extraordinarily complicated and extended the time limit for completion
of the final results of this review until not later than November 29,
1999, in accordance with section 751(c)(5)(B) of the Act.3
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\3\ See Extension of Time Limit for Final Results of Five-Year
Reviews, 64 FR 48579 (September 7, 1999).
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Determination
In accordance with section 751(c)(1) of the Act, the Department
conducted this review to determine whether revocation of the
antidumping duty order would be likely to lead to continuation or
recurrence of dumping. Section 752(c) of the Act provides that, in
making this determination, the Department shall consider the weighted-
average dumping margins determined in the 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 it 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 determinations concerning continuation or
recurrence of dumping and the magnitude of the margin are discussed
below. In addition, interested parties' comments with respect to
continuation or recurrence of dumping and the magnitude of the margin
are addressed within the respective sections below.
Continuation or Recurrence of Dumping
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
[[Page 67860]]
Bulletin providing guidance on methodological and analytical issues,
including the bases for likelihood determinations. In its Sunset Policy
Bulletin, the Department indicated that determinations of likelihood
will be made on an order-wide basis (see section II.A.2). In addition,
the Department indicated that normally it 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 of the Sunset Policy Bulletin).
In addition to considering the guidance on likelihood cited above,
section 751(c)(4)(B) of the Act provides that the Department shall
determine that revocation of an order is likely to lead to continuation
or recurrence of dumping where a respondent interested party waives its
participation in the sunset review. In the instant review, the
Department did not receive a response from any respondent interested
party. Pursuant to section 351.218(d)(2)(iii) of the Sunset
Regulations, this constitutes a waiver of participation.
In their substantive response, the domestic interested parties
argue that revocation of the order on EMD from Japan would be likely to
lead to continuation or recurrence of dumping due to the fact that
dumping margins above de minimis have been calculated after the
issuance of the order and import volumes declined sharply following the
imposition of the order.
The domestic interested parties assert that, in administrative
reviews conducted after the imposition of the order, the Department
calculated margins well above de minimis for Tosoh Corporation (see
June 2, 1999, substantive response of the domestic interested parties
at 7). They also argue that imports of EMD from Japan fell from
approximately 19,000 short tons in 1988, the year before the order was
imposed, to approximately 143 short tons in 1989, the year in which the
order was imposed. Moreover, the domestic interested parties assert
that, since the order was imposed, imports of Japanese EMD have
remained at relatively negligible levels (less than one percent of
their pre-order volume (see id. at 8)). Therefore, they conclude that
the sharp decline in import volumes accompanied by the continued
existence of dumping margins above de minimis after the imposition of
the order provides a strong indication that dumping would continue or
recur if the order is revoked.
The Department agrees, based on an examination of the final results
of administrative reviews, that dumping margins above de minimis
levels have continued throughout the life of the order. As discussed in
section II.A.3 of the Sunset Policy Bulletin, the SAA at 890, and the
House Report at 63-64, if companies continue dumping with the
discipline of an order in place, the Department may reasonably infer
that dumping would continue if the discipline were removed.
With respect to import levels, the Department agrees that imports
of the subject merchandise decreased in 1990, the year following the
imposition of the order. However, since that time, imports of EMD from
Japan have fluctuated greatly, showing no overall trend.4
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\4\ The Department bases this determination on information
contained in U.S. IM146 Reports, U.S. Department of Commerce
statistics, U.S. Department of Treasury statistics, and information
obtained from the U.S. International Trade Commission.
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As explained above, the Department finds that the existence of
dumping margins after the issuance of the order is highly probative of
the likelihood of continuation or recurrence of dumping. A deposit rate
above a de minimis level remains in effect for exports of the subject
merchandise for at least one known Japanese producer/exporter. Given
that dumping has continued over the life of the order and respondent
interested parties waived their right to participate in this review
before the Department, and absent argument and evidence to the
contrary, the Department determines that dumping is likely to continue
or recur if the order is revoked.
Magnitude of the Margin
In the Sunset Policy Bulletin, the Department stated that normally
it will provide to the Commission the margin that was determined in the
final determination in the original investigation. Further, for
companies not specifically investigated or for companies that did not
begin shipping until after the order was issued, normally the
Department will provide a margin based on the ``all others'' rate from
the investigation. (See section II.B.1 of the Sunset Policy Bulletin.)
Exceptions to this policy include the use of a more recently calculated
margin, where appropriate, and consideration of duty-absorption
determinations. (See sections II.B.2 and 3 of the Sunset Policy
Bulletin.) To date, the Department has not made any duty-absorption
findings in this case.
In their substantive response, the domestic interested parties
suggest that the Department adhere to its normal policy and select the
margins from the original investigation for Mitsui Mining and Smelting
(``Mitsui'') and the ``all others'' rate. However, they recommend that
the Department forward to the Commission the more recently calculated
margin from the second administrative review of 77.43 percent for Tosoh
Corporation (``Tosoh''). The domestic interested parties point out that
Tosoh participated in the first administrative review (1990-91) and
received a rate of 20.43 percent, lower than the 71.91 percent margin
determined for Tosoh in the original LTFV investigation and antidumping
duty order. They argue that Tosoh seemed content with its margin of
20.43 percent and, thus, sought to ``lock in'' that rate and thereby
avoid a possibly higher margin by refusing to participate in the second
(1991-92) and third (1992-93) administrative reviews (see June 2, 1999,
substantive response of the domestic interested parties at 10).
Therefore, the domestic interested parties argue that the Department
should conclude that the dumping margin of 77.43 percent determined in
the 1991-92 and 1992-93 reviews most accurately reflects Tosoh's likely
dumping margin should revocation occur.
We agree with the domestic interested parties that we should
forward to the Commission the rates from the original investigation for
Mitsui and ``all others.'' As for the margin for Tosoh, the Department
disagrees with the domestic interested parties. As noted in the Sunset
Regulations and Sunset Policy Bulletin, the Department may provide to
the Commission a more recently calculated margin for a particular
company where dumping margins increased after the issuance of the order
or if that particular company increased dumping to maintain or increase
market share. Such circumstances are not present in this case. As noted
above, domestic interested parties argued that import volumes actually
declined over the life of the order and the domestic interested parties
did not provide any argument or evidence that Tosoh was attempting to
increase or maintain market share.
Therefore, consistent with the Sunset Policy Bulletin, the
Department determines that the margins calculated in the original
investigation are probative of the behavior of Japanese producers/
exporters of EMD if the order were revoked as they are the only rates
[[Page 67861]]
which reflect the behavior of these producers and exporters without the
discipline of the order in place. As such, the Department will report
to the Commission the company-specific and ``all others'' rates from
the original investigation as contained in the Final Results of Review
section of this notice.
Final Results of Review
As a result of this review, the Department finds that revocation of
the antidumping duty order would likely lead to continuation or
recurrence of dumping at the margins listed below:
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Margin
Manufacturer/exporter (percent)
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Mitsui Mining and Smelting (``Mitsui'').................... 77.73
Tosoh Corporation (``Tosoh'').............................. 71.91
All Others................................................. 73.30
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This notice serves as the only 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 351.305 of the Department's regulations.
Timely 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.
This five-year (``sunset'') review and notice are in accordance
with sections 751(c), 752, and 777(i)(1) of the Act.
Dated: November 29, 1999.
Richard W. Moreland,
Acting Assistant Secretary for Import Administration.
[FR Doc. 99-31429 Filed 12-2-99; 8:45 am]
BILLING CODE 3510-DS-P