[Federal Register Volume 64, Number 232 (Friday, December 3, 1999)]
[Notices]
[Pages 67861-67864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31433]


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DEPARTMENT OF COMMERCE

International Trade Administration
[A-484-801]


Final Results of Expedited Sunset Review: Electrolytic Manganese 
Dioxide From Greece

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

ACTION: Notice of final results of Expedited Sunset Review: 
Electrolytic manganese dioxide From Greece.

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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 Greece (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 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, D.C. 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, 63 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.
    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 one company-specific weighted-average 
dumping margin as well as an ``all others'' rate (54 FR 8771, March 2, 
1989). The antidumping duty order on EMD from Greece was published in 
the Federal Register on April 17, 1989 (54 FR 15243). On November 16, 
1999, after the deadline for submitting comments in this sunset review, 
the Department published the final results of the only administrative 
review conducted of this order (64 FR 62169). This sunset review covers 
imports from all known Greek producers/exporters. To date, the 
Department has issued no duty absorption findings in this case.

Background

    On May 3, 1999, the Department initiated a sunset review of the 
antidumping duty order on EMD from Greece (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'') on May 18, 1999, within the deadline 
specified in section 351.218(d)(1)(i) of the Sunset Regulations. We 
also received a notice of intent to participate from The Eveready 
Battery Company (``Eveready'') on May 14, 1999. We received complete 
substantive responses from Chemetals, KMC, and Eveready on June 2, 
1999, within the 30-day deadline specified in the Sunset Regulations in 
section 351.218(d)(3)(i). Both Chemetals and KMC claimed interested-
party status pursuant to section 771(9)(C) of the Act as U.S. producers 
of a like product. Eveready claimed interested-party status pursuant to 
sections 771(9)(A) and 771(9)(C) as a U.S. importer of the subject 
merchandise and a producer of a domestic like product. In addition, 
Chemetals, KMC, and Eveready each stated that they had participated in 
the original investigation and every segment of the proceeding since 
the original investigation. On June 7, 1999, we received rebuttal 
comments from Chemetals, KMC, and Eveready. In its rebuttal comments, 
Eveready asserted that the joint response of Chemetals and KMC was 
inadequate and incomplete and should be disregarded along with any 
rebuttal comments filed by Chemetals and KMC. On June 9, 1999, Eveready 
requested that the 500-page rebuttal comments of Chemetals and KMC, 
which proffered

[[Page 67862]]

lengthy factual and legal analysis never before seen by Eveready or the 
Department, be stricken from the record. On June 11, 1999, Chemetals 
and KMC responded that Eveready's June 9 submission should be stricken 
from the record but, if maintained, it nevertheless did not provide a 
basis for striking the rebuttal comments.
    On June 22, 1999, we notified the International Trade Commission 
(``the Commission'') that we did not receive an adequate response (in 
this case, no response) to our notice of initiation from any respondent 
interested parties to this proceeding (see Letter to Mr. Lynn 
Featherstone from Jeffrey A. May, June 22, 1999). 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 Greece 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.1
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    \1\ See Extension of Time Limit for Final Results of Five-Year 
Reviews, 64 FR 48579 (September 7, 1999).
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Adequacy

    As noted above, on June 22, 1999, we notified the Commission that 
we determined to conduct an expedited review of this order on the basis 
that we had not received an adequate response (in this case, no 
response) to our notice of initiation from any respondent interested 
party. On July 12, 1999, within the deadline provided in section 
351.309(e)(ii) of the Sunset Regulations. Eveready argued that the 
Department erred when it stated that it had received ``no response'' 
from respondent interested parties because Eveready filed its 
substantive response not only as a producer in the United States of a 
domestic like product (under section 771(9)(C) of the Act) but also as 
a United States importer of the subject merchandise (under section 
771(9)(A) of the Act). Further, Eveready argued that its response 
should be considered adequate despite the fact that it did not provide 
the additional information required by subparagraphs (A) through (E) of 
section 351.218(d)(3)(iii) of the Sunset Regulations to be submitted by 
respondent interested parties. Eveready supports this argument by 
asserting that these subparagraphs are not applicable to Eveready 
because they are intended for foreign exporters of the subject 
merchandise (the second type of respondent interested party under the 
regulations). However, Eveready adds that it nonetheless provided 
information in its response identifying the dumping margin in effect, 
as well as the volume and value of Greek exports of EMD by quarter and 
year from 1983 to the present. Eveready also states that although it is 
not a foreign exporter of the subject merchandise, the statistics it 
provided in its response shows that it purchased all of the exports of 
EMD from Greece in 1998 and 1999. Further, Eveready asserts that it 
purchased 94 percent of the total imports of EMD from Greece for the 
past five years. On this basis, Eveready argues that the Department 
should reverse its erroneous decision and conduct a full sunset review.
    We also received comments from Chemetals and KMC on July 12, 1999, 
concerning the adequacy of response to the notice of initiation and the 
appropriateness of an expedited review. Chemetals and KMC supported the 
Department's determination to conduct an expedited review and referred 
to their rebuttal comments for specific argument. Specifically, 
Chemetals and KMC asserted that the Department correctly determined to 
conduct an expedited review on the basis that: (1) Tosoh Hellas A.I.C 
(``Tosoh Greece''), the sole manufacturer in Greece of the subject 
merchandise, did not respond; (2) Eveready's response did not provide 
the information required of a U.S. importer; (3) Eveready, despite its 
assertion, is not a U.S. importer of the subject merchandise; (4) the 
Department did not receive complete substantive responses from 
respondent interested parties accounting on average for more than 50 
percent of the total exports of the subject merchandise; and (5) 
Eveready's response was non-responsive to the information requested in 
the Department's notice of initiation.
    On September 14, 1999, Eveready again requested that the Department 
reconsider its determination to conduct an expedited review. On 
September 23, 1999, Chemetals and KMC responded, arguing that the time 
for filing comments had expired and, therefore, Eveready's submission 
should be rejected and no action taken.
    We agree with Chemetals and KMC that we should conduct an expedited 
review in this case. Section 351.218(e)(1)(ii)(C) of the Sunset 
Regulations provides that normally the Department will conduct an 
expedited review in accordance with section 751(c)(3)(B) of the Act 
where the Secretary determines that respondent interested parties 
provided inadequate response to a notice of initiation. Although 
Eveready argues that certain information requirements are not 
applicable to Eveready as an importer, the Department's regulations 
make no such exception. Furthermore, although it is possible that the 
Department may have considered Eveready's information requirement 
arguments in determining whether Eveready's substantive response was 
complete, the fact is that Eveready never attempted to explain this 
position in its substantive response. By failing to provide the 
required information in subparagraphs (A) through (E) of section 
351.218(d)(3)(iii), or even to explain its rationale for not providing 
such information, Eveready's response cannot be considered complete 
and, hence, cannot be considered adequate.
    In their rebuttal comments, as well as in subsequent submissions, 
Chemetals and KMC argue that Eveready does not qualify as an interested 
party under section 771(9)(A) of the Act because it is, in fact, not an 
importer of subject merchandise. Rather, they contend, Eveready is a 
U.S. purchaser of the imported material. In support of this argument, 
Chemetals and KMC refer to the July 7, 1998, questionnaire response of 
Tosoh Greece in the 1997/98 administrative review in which Tosoh Greece 
stated that Mitsubishi International Corporation is its importer and 
reseller of EMD in the U.S. market. In its comments on the Department's 
adequacy determination, Eveready does not dispute the comments of 
Chemetals and KMC regarding that Eveready is not a U.S. importer.
    As we noted in Final Results of Full Sunset Review: Sugar from the 
European Community, 64 FR 49464 (September 13, 1999), adequacy 
determinations are made for the purpose of determining whether there is 
sufficient participation to warrant a full review. In this case, 
because we received an incomplete response from the one party claiming 
respondent interested-party status and we did not receive a response 
from any other party claiming respondent interested-party status, we 
continue to determine that we received inadequate respondent 
interested-party participation to warrant a full review.

Determination

    In accordance with section 751(c)(1) of the Act, the Department 
conducted

[[Page 67863]]

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 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 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 complete substantive response from 
respondent interested parties. Pursuant to section 351.218(d)(2)(iii) 
of the Sunset Regulations, this constitutes a waiver of participation.
    In their substantive response, Chemetals and KMC argue that 
revocation of the order on EMD from Greece would be likely to lead to 
continuation or recurrence of dumping due to the fact that dumping 
margins above de minimis remain in place and import volumes declined 
sharply following the imposition of the order. Specifically, Chemetals 
and KMC assert that imports of EMD from Greece fell from approximately 
97 short tons in 1988, the year before the order was imposed, to zero 
short tons in 1990, the first full year following the imposition of the 
order. Moreover, Chemetals and KMC assert that no EMD was imported from 
Greece from 1990 to 1996. Finally, they argue that, since 1997, imports 
of Greek EMD have remained at relatively negligible levels (see June 2, 
1999, substantive response of Chemetals and KMC at 9). Therefore, 
Chemetals and KMC conclude that the sharp decline in import volumes 
following the imposition of the order accompanied by the continued 
existence of dumping margins above de minimis provides a strong 
indication that dumping would continue or recur if the order is 
revoked.
    In its substantive response, Eveready argues that the likely effect 
of revocation of the order would be that dumping would not continue or 
recur (see June 2, 1999, substantive response of Eveready at 48). 
Eveready bases its argument on several factors. For one, Eveready 
argues that market forces have changed dramatically since the order was 
imposed in 1989 (see id. at 5). Furthermore, Eveready maintains that 
the technological revolution, including the growth of portable 
electronics, has caused the demand for batteries, and, hence, EMD, to 
grow quickly (see id. at 5-6). Eveready argues further that battery 
manufacturers have had to adjust to these changes and provide this 
rapidly evolving market with smaller portable power sources that can 
handle the rigorous demands of the new high-drain technologies. 
Eveready maintains that the batteries used to power these portable 
devices are the AA and AAA-size alkaline batteries which last longer 
and, as a result, require a higher-quality EMD, referred to as ``high 
quality'' or ``high-drain'' EMD, in their production (see id. at 6). 
Eveready maintains that EMD produced by Chemetals does not qualify, 
despite nearly two years' effort. Further, with respect to foreign 
manufacturers, Eveready states that the only firms that it has either 
qualified or appear to be able to be qualified are those in Japan, 
Greece, and Ireland (see id. at 7).
    Moreover, Eveready argues that the Greek producers of EMD need not 
dump their product in the U.S. market because they already have market 
share and already sell all the EMD they produce (see id. at 7-8). While 
Eveready agrees that imports of EMD from Greece declined after the 
issuance of the order and by 1990 ceased altogether, Eveready asserts 
that the decline in import volumes was due to the fact that Greece did 
not produce any EMD that was usable in the U.S. market, not due to the 
imposition of the order (see id. at 24-25).
    In their rebuttal, Chemetals and KMC assert that nowhere in 
Eveready's submission is specific evidence or good cause shown as to 
why the revocation of the order would not result in continuation or 
recurrence of dumping. They argue that there have not been significant 
changed circumstances since the time of the original investigation. 
Chemetals and KMC maintain that the growth in AA and AAA battery use 
does not constitute changed circumstances because this trend has not 
led to a corresponding increase in the number of AA and AAA batteries 
produced (see June 7, 1999, rebuttal of Chemetals and KMC, Appendix B, 
at 13). In sum, Chemetals and KMC rebut Eveready's statement that 
revocation of the order would not lead to continuation or recurrence of 
dumping while also maintaining that changed circumstances have not been 
demonstrated in this case.
    In its rebuttal, Eveready argues that the fact that antidumping 
duties were paid on shipments of the subject merchandise from Greece 
does not lead automatically to the conclusion that dumping continued at 
levels above de minimis following the imposition of the order (see June 
7, 1999, rebuttal of Eveready at 6). Moreover, Eveready rebuts the 
arguments of Chemetals and KMC that the cessation of imports of EMD 
from Greece following the imposition of the order provides a strong 
indication that dumping would continue or recur were the order revoked 
(see id. at 7). Furthermore, Eveready claims that import volumes 
provided by Chemetals and KMC in their substantive response are 
misleading because they are reported in short tons, as opposed to 
metric tons. In addition, Eveready maintains that the claim by 
Chemetals and KMC that the cessation of imports was due solely to the 
antidumping duty order overlooks

[[Page 67864]]

the changing market place and the shift in battery production (see id. 
at 7).
    With respect to import levels, the Department agrees that imports 
of the subject merchandise ceased in 1990, the year following the 
imposition of the order. Imports remained at zero until 1997. Since 
that time, imports of EMD from Greece have been negligible.2
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    \2\ 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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    The final results of the 1997-98 administrative review were not 
issued until November 16, 1999; 3 however, the results were 
consistent with the preliminary results on which interested parties 
based their arguments. While the final results reflected a zero dumping 
margin for Tosoh Greece, the analysis was based on minimal exports, as 
acknowledged by all interested parties. Therefore, the cessation of 
dumping occurred at the expense of exports of the subject merchandise 
from Greece.
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    \3\ See Electrolytic Manganese Dioxide from Greece; Final 
Results of Antidumping Duty Administrative Review, 64 FR 62169 
(November 16, 1999).
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    Based on this analysis, the Department finds that the sharp decline 
in imports is highly probative of the likelihood of continuation or 
recurrence of dumping. Given that import volumes ceased for a period of 
time following the imposition of the order and have since been 
negligible and respondent interested parties waived their right to 
participate in this review before the Department, the Department 
determines that dumping is likely to continue or recur if the order is 
revoked. Because we are basing our determination on the fact that 
import volumes sharply declined following the imposition of the order, 
we have not addressed Eveready's arguments regarding changed 
circumstances as a basis for revocation.

Magnitude of the Margin

    In the Sunset Policy Bulletin, the Department stated that it will 
normally 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, the Department 
normally 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, Chemetals and KMC suggest that the 
Department adhere to its normal policy and select the margins from the 
original investigation. They therefore recommend that the Department 
forward the rates of 36.72 percent for Tosoh and 36.72 percent for all 
others from the original investigation (see June 2, 1999, substantive 
response of Chemetals and KMC at 11).
    Eveready asserts that the dumping margin would disappear if the 
order were revoked (see June 2, 1999, substantive response of Eveready 
at 48). Eveready cites as support for its argument the preliminary 
results of the 1997-1998 administrative review conducted by the 
Department, in which the dumping margin was found to be zero for Tosoh.
    In their rebuttal, Chemetals and KMC state that Eveready does not 
challenge the Department's normal practice of forwarding margins from 
the original investigation, but instead contends that a zero margin 
should apply since, in the currently pending administrative review for 
1997-1998, the Department preliminarily determined that sales by Tosoh 
(Greece) were not made below fair value. However, citing to the sunset 
review of the order on frozen concentrated orange juice from Brazil, 
Chemetals and KMC point out that the Department has refused to base its 
margin recommendation on preliminary results of ongoing administrative 
reviews.4
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    \4\ See Final Results of Expedited Sunset Review; Frozen 
Concentrated Orange Juice from Brazil, 64 FR 16901 (April 7, 1999).
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    Eveready, in its rebuttal, argues that Chemetals and KMC have not 
provided any factual evidence regarding why the margins from the 
original investigation should be forwarded to the Commission.
    The Department agrees with Chemetals and KMC that we should forward 
to the Commission the rates from the original investigation for Tosoh 
and ``all others.'' The Department notes that although in the 1997-1998 
administrative review it calculated a weighted-average dumping margin 
of zero for Tosoh, this margin was based on minimal exports of the 
subject merchandise. As acknowledged by Chemetals, KMC, and Eveready, 
imports of the subject merchandise from Greece fell sharply following 
the imposition of the order and have not regained their pre-order 
levels.
    Therefore, consistent with the Sunset Policy Bulletin, the 
Department determines that the margins calculated in the original 
investigation are probative of the behavior of Greek producers/
exporters of EMD if the order were revoked as it is the only rate that 
reflects the behavior of these producers and exporters without the 
discipline of the order. 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:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
Tosoh Hellas (``Tosoh'')...................................        36.72
All Others.................................................        36.72
------------------------------------------------------------------------

    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. 99-31433 Filed 12-2-99; 8:45 am]
BILLING CODE 3510-DS-P