[Federal Register Volume 65, Number 29 (Friday, February 11, 2000)]
[Notices]
[Pages 6992-6995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-3261]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-588-852]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Structural Steel Beams From Japan

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

EFFECTIVE DATE: February 11, 2000.

FOR FURTHER INFORMATION CONTACT: Juanita Chen or Robert Bolling, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington DC 20230; 
telephone (202) 482-0409 and (202) 482-3434, respectively.

The Applicable Statute and Regulations

    Unless otherwise indicated, all citations to the statute are 
references to the provisions effective January 1, 1995, the effective 
date of the amendments made to the Tariff Act of 1930 (the Act) by the 
Uruguay Round Agreements Act (URAA). In addition, unless otherwise 
indicated, all citations to the Department of Commerce (``Department'') 
regulations are to the regulations at 19 CFR part 351 (April 1998).

Preliminary Determination

    We preliminarily determine that Structural Steel Beams 
(``Structurals'') from Japan are being, or are likely to be, sold in 
the United States at less than fair value (``LTFV''), as provided in 
section 733 of the Act. The estimated margins of sales at LTFV are 
shown in the ``Suspension of Liquidation'' section of this notice. For 
all the following companies, the Department has used adverse facts 
available for their estimated margin: Nippon Steel Corporation 
(``NSC''); Kawasaki Steel Corporation (``Kawasaki''); NKK Corporation 
(``NKK''); Sumitomo Metals Industries, Ltd. (``Sumitomo''); Toa Steel 
Co., Ltd. (``Toa''); Tokyo Steel Manufacturing Co., Ltd. (``Tokyo 
Steel'') and Topy Industries, Limited (``Topy''). However, the 
Department is not assigning a margin to Yamato Kogyo Co. Ltd. See Case 
History section.

Case History

    On August 3, 1999, the Department initiated antidumping duty 
investigations of imports of structural steel beams from Germany, 
Japan, South Korea, and Spain (Notice of Initiation of Antidumping 
Investigations: Structural Steel Beams from Germany, Japan, South 
Korea, and Spain (64 FR 42084 (August 3, 1999)). Since the initiation 
of this investigation the following events have occurred.
    The Department set aside a period for all interested parties to 
raise issues regarding product coverage. On August 8, 1999, 
Northwestern Steel & Wire Company, Nucor-Yamato Steel Company, TXI-
Chaparral Steel Co., and the United Steelworkers of America AFL-CIO) 
(``petitioners'') submitted comments to the Department that proposed 
model match criteria. Petitioners stated that they provided the factors 
(i.e., shape, size, grade yield strength, weight, dimension and 
processing) upon which price distinctions in the foreign market should 
be based because they reflect the physical differences of the products. 
The petitioners stated that they listed these products in general order 
of importance. Also, on August 17, 1999, petitioners submitted comments 
to the Department requesting that the scope exclude certain forklift 
truck mast-section non-standard I-beams.
    On August 13, 1999, petitioners revised their proposed model 
matching criteria for Japanese products. In this letter, petitioners 
provided information purporting to demonstrate that, based on yield 
strength, the new home market grades of the subject merchandise are a 
more appropriate match to the products being sold in the United States 
than the grades identified in the petition. Further, on August 25, 
1999, petitioners submitted comments to the Department's draft model 
match characteristics. First, petitioners stated that the Department 
should include a classification for ``Other Doubly-Symmetric Shapes 
(i.e., Special Sections)'' at the end of the depth section category. 
Second, petitioners stated that the Department should match beam types 
in the following order: M beams, wide flange beams, standard beams, H 
piles and other doubly-symmetric shapes.
    On August 23, 1999, the United States International Trade 
Commission (``ITC'') notified the Department of its affirmative 
preliminary injury determination on imports of subject merchandise from 
Japan and South Korea and its negative injury determination on imports 
of subject merchandise from Germany and Spain. On August 31, 1999, 
noting the ITC's negative injury determination concerning Germany, 
petitioners submitted a letter stating that a scope exclusion of 
forklift truck mast-section non-standard I-beams was no longer 
necessary as those products were imported from Germany. Additionally, 
on September 1, 1999, the ITC published its preliminary determination 
that there is a reasonable indication that an industry in the United 
States is being threatened with material injured by reason of imports 
of the subject merchandise from Japan (64 FR 47866).
    On August 2, 1999, the Department issued Section A of its 
antidumping duty questionnaire to NSC, Kawasaki, NKK, Sumitomo, Toa, 
Tokyo Steel, Topy, and Yamato Kogyo Co. Ltd. (``Yamato''). On August 
11, 1999, the Department received NKK and Toa's joint response to 
Question 1 of Section A. This response stated that Toa is a subsidiary 
company of NKK now under liquidation, and that Toa did not make any 
sales of the subject merchandise during the POI.\1\ On August 12, 1999, 
the Department received Sumitomo's response to Question 1 of Section A. 
On August 13 and 19, 1999, the Department received Tokyo Steel's 
response to Question 1 of Section A. Topy submitted its response to 
Question 1 of Section A on August 16 and 20, 1999. Yamato submitted its 
response to Question 1 of Section A on August 16, 1999, in which Yamato 
stated that it did not make any sales of subject merchandise to the 
United States during the POI. On August 18, 1999, NSC informed the 
Department that it will not be participating in the Structural Steel 
Beams investigation. On August 20, 1999, Kawasaki informed the 
Department that it will not be participating in the Structural Steel 
Beams investigation. On August 24, 1999, NKK informed the Department 
that it will not be participating in the Structural Steel Beams 
investigation. On August 30, 1999, the Department informed Yamato that 
it will not be part of the investigation because it did not

[[Page 6993]]

have sales of subject merchandise during the POI.
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    \1\ Based on this information, the Department considers NKK and 
Toa to be a single entity and will instruct Customs to treat them as 
such.
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    On August 30, 1999, the Department issued Sections B-E of its 
antidumping duty questionnaire to Sumitomo, Tokyo Steel, and Topy. On 
September 3, 1999, the Department returned both Tokyo Steel and Topy's 
Section A response because both companies failed to correctly submit 
their respective Section A responses in accordance with the 
Department's regulations. On September 10, 1999, Tokyo Steel 
resubmitted its Section A response. Topy resubmitted its Section A 
response on September 13, 1999. On September 14, 1999, we provided 
additional instructions and filing procedures to both Tokyo Steel and 
Topy. Additionally, on September 14th, we sent a letter to Tokyo Steel 
informing it that all submissions must be served to APO parties. 
Petitioners requested on September 15, 1999 that the Department reject 
Tokyo Steel's Section A response because of non-conformity with the 
Department's regulations. Also, on September 15, 1999, Sumitomo 
informed the Department that it will not be participating in the 
Structural Steel Beams investigation. On September 21, 1999, 
petitioners filed comments on Tokyo Steel and Topy's Section A 
questionnaire response. OnSeptember 30, 1999, we issued supplemental 
Section A questionnaires to Tokyo Steel and Topy. Additionally, on 
September 30th, we provided further explanation to Tokyo Steel on the 
Department's filing procedures.
    On October 7, 1999, Tokyo Steel informed the Department by fax that 
it was not possible to provide all of the data requested in Sections B-
E of the questionnaire due to its voluminous nature. We received Tokyo 
Steel and Topy's supplemental Section A questionnaire responses on 
October 14, 1999. On October 15, 1999, we extended Tokyo Steel's 
deadline for submitting its Sections B-E responses from October 7, 1999 
to October 22, 1999. On October 20, 1999, we extended Topy's deadline 
for submitting its Sections B-E responses from October 7, 1999 to 
October 27, 1999. Petitioners stated on October 20, 1999 that should 
Tokyo Steel and Topy fail to respond to the Department's questionnaire 
in its entirety and by the extended deadlines, the Department should 
cease granting leniency and apply adverse fact available. On October 
22, 1999, the Department received Tokyo Steel's responses to Sections 
B, C, and D of the questionnaire. However, within the response Tokyo 
Steel again stated that it was impossible to provide the Department 
with all of the requested data, due to the voluminous nature of the 
requested data. On October 27, 1999, petitioners submitted a letter 
requesting that the Department reject the non-conforming and incomplete 
response of Tokyo Steel to Sections B-E. On November 5, 1999, Tokyo 
Steel submitted a letter stating that the petitioners' letter of 
October 27th maligns the company and Tokyo Steel had, to the best of 
its ability, responded honestly to the Department's questionnaire. 
Further, on November 12, 1999, petitioners submitted a letter similar 
to its August 13th letter providing more appropriate price-to-price 
dumping margin comparisons for certain NSC Japanese products. Moreover, 
on January 14, 2000, petitioners submitted a letter providing reasons 
why its revised price-to-price margins are an appropriate basis for 
facts available.

Scope of Investigation

    For purposes of this investigation, the products covered are 
doubly-symmetric shapes, whether hot-or cold-rolled, drawn, extruded, 
formed or finished, having at least one dimension of at least 80 mm 
(3.2 inches or more), whether of carbon or alloy (other than stainless) 
steel, and whether or not drilled, punched, notched, painted, coated, 
or clad. These products (``Structural Steel Beams'') include, but are 
not limited to, wide-flange beams (``W'' shapes), bearing piles (``HP'' 
shapes), standard beams (``S'' or ``I'' shapes), and M-shapes.
    All products that meet the physical and metallurgical descriptions 
provided above are within the scope of this investigation unless 
otherwise excluded. The following products, are outside and/or 
specifically excluded from the scope of this investigation:
     Structural steel beams greater than 400 pounds per linear 
foot or with a web or section height (also known as depth) over 40 
inches.
    The merchandise subject to this investigation is classified in the 
Harmonized Tariff Schedule of the United States (``HTSUS'') at 
subheadings: 7216.32.0000, 7216.33.0030, 7216.33.0060, 7216.33.0090, 
7216.50.0000, 7216.61.0000, 7216.69.0000, 7216.91.0000, 7216.99.0000, 
7228.70.3040, 7228.70.6000. Although the HTSUS subheadings are provided 
for convenience and Customs purposes, the written description of the 
merchandise under investigation is dispositive.

Period of Investigation

    The Period of Investigation (``POI'') is July 1, 1998 through June 
30, 1999.

Facts Available

    Section 776(a)(2) of the Act provides that, if an interested party: 
(A) Withholds information that has been requested by the Department; 
(B) fails to provide such information in a timely manner or in the form 
or manner requested; (C) significantly impedes a proceeding under the 
antidumping statute; or (D) provides such information but the 
information cannot be verified, the Department shall use facts 
otherwise available in reaching the applicable determination.
    In this case, NSC, Kawasaki, NKK, and Sumitomo indicated that they 
would not participate in the Department's investigation and did not 
provide the Department with information requested and needed to 
calculate a dumping margin. Therefore, we determine that NSC, Kawasaki, 
NKK/Toa, and Sumitomo withheld information requested by the Department. 
Accordingly, the Department finds it necessary to use the facts 
otherwise available for these respondents in accordance with section 
776(a)(2)(A) of the Act.
    With respect to Tokyo Steel and Topy, both companies responded to 
Section A of the Department's questionnaire. However, both companies 
failed to completely respond to Sections B-D of the Department's 
questionnaire. On October 7th, Tokyo Steel informed the Department it 
was not possible to provide all of the requested data for sections B-E 
of the questionnaire due to the voluminous nature of the request. On 
October 15, 1999 and October 20, 1999, the Department extended the 
deadline for submitting sections B-E of its questionnaire for both 
Tokyo Steel and Topy, respectively. In this letter, pursuant to section 
782(d) of the Act, because incomplete responses are considered 
deficient, the Department warned respondents that such responses could 
result in use of the facts available. On October 22, 1999, the 
Department received Tokyo Steel's response to Sections B, C, and D of 
the questionnaire. However, in that response Tokyo Steel stated that 
due to the voluminous nature of the requested data it could not provide 
the Department with all the requested data and instead provided the 
Department with only selected information. Therefore, the Department 
determines that Tokyo Steel failed to provide the necessary information 
in the form or manner requested. Because the

[[Page 6994]]

Department is lacking complete information, we find it necessary to use 
the facts otherwise available for Tokyo Steel in accordance with 
section 776(a)(2)(B) of the Act.
    Lastly, with respect to Topy, on October 20, 1999, the Department 
extended Topy's deadline for submitting its Sections B-D responses to 
October 27, 1999. However, Topy completely failed to respond to these 
sections of the questionnaire. Consequently, the Department finds Topy 
withheld requested information and that it is necessary to use the 
facts otherwise available in making its determination in accordance 
with section 776(a)(2)(A) of the Act.
    In selecting from among the facts otherwise available, section 
776(b) of the Act provides that adverse inferences may be used when a 
party has failed to cooperate by not acting to the best of its ability 
to comply with the Department's requests for information. See also 
Statement of Administrative Action accompanying the URAA, H.R. Rep. No. 
103-316, Vol. I, at 870 (1994) (``SAA''). In this case, NSC, Kawasaki, 
NKK, and Sumitomo completely failed to respond to the Department's 
questionnaires. Further, the companies indicated that they would not 
participate in the Department's investigation. Because of the 
companies' complete lack of participation in this investigation, we 
find that the companies failed to cooperate to the best of their 
abilities. Accordingly, when selecting among the facts available, we 
find that the use of an adverse inference is warranted in accordance 
with section 776(b) of the Act.
    With respect to Tokyo Steel and Topy while the companies did 
respond to the Department's section A questionnaires and supplemental 
section A questionnaires, neither company responded satisfactorily to 
the Department's Sections B-E questionnaires. Although Tokyo Steel did 
submit a response to Sections B-E, on October 22, 1999, that response 
was highly incomplete despite Tokyo Steel's being granted an extension 
and warned that the Department required a complete response. Tokyo 
Steel informed the Department that it was not possible to respond to 
its questionnaire due to the voluminous nature of the requested data, 
but offered no further explanation for its failure to provide complete 
data in light of the Department's enlargement of time for Tokyo Steel's 
response. Further, Topy did not respond to Sections B-E of the 
Department's questionnaire at all, nor did it provide any reason for 
its failure to respond. In light of these facts, the Department finds 
that Tokyo Steel and Topy failed to act to the best of their abilities 
to comply with the Department's requests for information under section 
776(b) of the Act. Thus, the Department has determined that, in 
selecting among the facts otherwise available, an adverse inference is 
warranted for these companies as well.
    Section 776(b) states that an adverse inference may include 
reliance on information derived from the petition or any other 
information placed on the record. See also SAA at 829-831. As adverse 
facts become available, the Department is assigning to NSC, Kawasaki, 
NKK/Toa, Sumitomo, Tokyo Steel, and Topy a dumping margin of 65.21 
percent, which represents the highest margin calculated from the 
information placed on the record by petitioners on August 13, 1999 and 
November 12, 1999. As explained in detail in the ``Corroboration'' 
section below, we are using this information because it is a refinement 
of information in the petition in that it represents the best price-to-
price comparison on the record. Further, the Department determines that 
use of this margin accomplishes the statute's aim of encouraging 
participation. As the SAA provides, where a party has not cooperated in 
a proceeding:

    Commerce * * * may employ adverse inferences about the missing 
information to ensure that the party does not obtain a more 
favorable result by failing to cooperate than if it had cooperated 
fully. In employing adverse inferences, one factor the agencies will 
consider is the extent to which a party may benefit from its own 
lack of cooperation. SAA at 870.
    In this case, information representing a better price-to-price 
comparison that was submitted by petitioners during the proceeding 
demonstrates that the dumping margins estimated in the petition may be 
lower than in actual practice. Therefore, use of petitioners' updated 
information, which results in a higher dumping margin, will ensure that 
parties do not obtain a more favorable result by failing to cooperate 
in this investigation.
    Section 776(c) of the Act provides that, when the Department relies 
on secondary information (which includes information from the petition) 
in using the facts otherwise available, it must, to the extent 
practicable, corroborate that information from independent sources that 
are reasonably at its disposal.
    The SAA clarifies that ``corroborate'' means that the Department 
will satisfy itself that the secondary information to be used as 
probative value (see SAA at 870). The SAA also states that independent 
sources used to corroborate such evidence may include, for example, 
published price lists, official import statistics and customs data, and 
information obtained from interested parties during the particular 
investigation (see SAA at 870).
    We reviewed the adequacy and accuracy of the information in the 
petition during our pre-initiation analysis of the petition, to the 
extent appropriate information was available for this purpose. See 
Import Administration Antidumping Duty (``AD'') Investigation 
Initiation Checklist (July 27, 1999), for a discussion of the margin 
calculations in the petition. In addition, in order to determine the 
probative value of the margins in the petition in accordance with 
section 776(c) of the Act, we examined the key elements of the export 
price (``EP'') and normal value (``NV'') calculations on which the 
margins in the petition were based. Our review of the EP and NV 
calculations indicated that the information in the petition has 
probative value, as certain information included in the margin 
calculations in the petition are from public sources concurrent, for 
the most part, with the POI (e.g., interest rates, port fees, and 
customs duties).
    In addition, shortly after the initiation of the investigation, on 
August 13, 1999, and again on November 12, 1999, the petitioners 
provided the Department with additional information for the 
Department's use in potential adverse facts available situations. 
Specifically, in the August 13th information petitioners provided a 
more recent price list than the one found in the petition (i.e., April 
1999 versus December 1998). This new price list provided home market 
grades (i.e., SM490A and SM490B) that they contend are more appropriate 
matches for the U.S. grade (i.e., A572-50) found in the petition. 
Petitioners stated that the aforementioned home market grades are a 
more comparable match because both the home market and U.S. products 
have yield strengths that are more similar to each other than the home 
market and U.S. grades compared in the petition. Thus, petitioners 
believed that the new comparisons better reflect the Department's model 
matching criteria. After reviewing petitioners' new information, the 
Department agrees that it represents the best match and therefore the 
best price-to-price comparison currently on the record because it bases 
the prices used for the comparison on products with characteristics 
that best reflect the Department's model match criteria. Furthermore, 
the Department finds that the public price lists on the record do,

[[Page 6995]]

in fact, corroborate the prices of the new home market grades presented 
by petitioners.
    With respect to certain other data included in the margin 
calculations of the petition (e.g., inland freight), neither 
respondents nor other interested parties provided the Department with 
further relevant information and the Department is aware of no other 
independent sources of information that would enable it to further 
corroborate the remaining components of the margin calculation in the 
petition. The implementing regulation for section 776 of the Act, at 19 
CFR 351.308(c), states ``[t]he fact that corroboration may not be 
practicable in a given circumstance will not prevent the Secretary from 
applying an adverse inference as appropriate and using the secondary 
information in question.'' Additionally, we note that the SAA at 870 
specifically states that, where ``corroboration may not be practicable 
in a given circumstance,'' the Department may nevertheless apply an 
adverse inference. Accordingly, we find, for purposes of this 
preliminary determination, that the information used is sufficiently 
corroborated.

All Others

    Section 735(c)(5)(B) of the Act provides that, where the estimated 
weighted-average dumping margins established for all exporters and 
producers individually investigated are zero or de minimis or are 
determined entirely under section 776 of the Act, the Department may 
use any reasonable method to establish the estimated all-others rate 
for exporters and producers not individually investigated. Our recent 
practice under these circumstances has been assign, as the ``all 
others'' rate, the simple average of the margins in the petition. See 
Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Plate in Coil from Canada, 64 FR 15457 (March 31, 
1999); Notice of Final Determination of Sales at Less Than Fair Value: 
Stainless Steel Plate in Coil from Italy, 64 FR 15458, 15459 (March 21, 
1999).
    We are basing the ``all others'' rate on the simple average of 
margins in the petition and information placed on the record by 
petitioners on August 13, 1999 and November 12, 1999, which is 31.98 
percent.

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we are directing the 
Customs Service to suspend liquidation of all imports of subject 
merchandise that are entered, or withdrawn from warehouse, for 
consumption on or after the date of publication of this notice in the 
Federal Register. We will instruct the Customs Service to require a 
cash deposit or the posting of a bond equal to the weighted-average 
dumping margin indicated in the chart below. These suspension-of-
liquidation instructions will remain in effect until further notice. 
The weighted-average dumping margins are as follows:

------------------------------------------------------------------------
                                                              Weighted-
                                                               average
                   Exporter/manufacturer                       margin
                                                            (percentage)
------------------------------------------------------------------------
Kawasaki Steel Corporation................................        65.21
Nippon Steel Corporation..................................        65.21
NKK Corporation/Toa Steel Co., Ltd........................        65.21
Sumitomo Metals Industries, Ltd...........................        65.21
Tokyo Steel Manufacturing Co., Ltd........................        65.21
Topy Industries, Limited..................................        65.21
All Others................................................        31.98
------------------------------------------------------------------------

ITC Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our determination. If our final determination is affirmative, 
the ITC will determine before the later of 120 days after the date of 
this preliminary determination, or 45 days after our final 
determination, whether these imports are materially injuring, or 
threaten material injury to, the U.S. industry.

Public Comment

    Case briefs or other written comments may be submitted to the 
Assistant Secretary for Import Administration no later than fifty days 
after the date of publication of this notice, and rebuttal briefs, 
limited to issues raised in case briefs, no later than fifty-five days 
after publication of this notice. A list of authorities used and an 
executive summary of issues should accompany any briefs submitted to 
the Department. Such summary should be limited to five pages total, 
including footnotes. In accordance with section 774 of the Act, we will 
hold a public hearing, if requested, to afford interested parties an 
opportunity to comment on arguments raised in case or rebuttal briefs. 
Tentatively, the hearing will be held fifty-seven days after 
publication of this notice, time and room to be determined, at the U.S. 
Department of Commerce, 14th Street and Constitution Avenue, N.W., 
Washington, D.C. 20230. Parties should confirm by telephone the time, 
date, and place of the hearing 48 hours before the scheduled time.
    Interested parties who wish to request a hearing, or to participate 
if one is requested, must submit a written request to the Assistant 
Secretary for Import Administration, U.S. Department of Commerce, Room 
1870, within 30 days of the publication of this notice. Requests should 
contain: (1) The party's name, address, and telephone number; (2) the 
number of participants; and (3) a list of the issues to be discussed. 
Oral presentations will be limited to issues raised in the briefs. If 
this investigation proceeds normally, we will make our final 
determination no later than 75 days after this preliminary 
determination.
    This determination is issued and published in accordance with 
sections 733(d) and 777(i)(1) of the Act.

    Dated: February 2, 2000.
Holly A. Kuga,
Acting Assistant Secretary for Import Administration.
[FR Doc. 00-3261 Filed 2-10-00; 8:45 am]
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