[Federal Register Volume 65, Number 174 (Thursday, September 7, 2000)]
[Notices]
[Pages 54205-54208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-22991]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-428-816]


Certain Cut-to-Length Carbon Steel Plate From Germany: 
Preliminary Results of Antidumping Duty Administrative Reviews

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

ACTION: Notice of preliminary results in the antidumping duty 
administrative reviews of certain cut-to-length carbon steel plate from 
Germany.

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SUMMARY: In response to requests from Bethlehem Steel Corporation, U.S. 
Steel Group, a unit of USX Corporation (collectively, ``Petitioners'') 
and Novosteel SA (``Novosteel''), the U.S. Department of Commerce 
(``Department'') is conducting administrative reviews of the 
antidumping duty orders on certain cut-to-length carbon steel plate 
(``CTL plate'') from Germany for the periods August 1, 1997 through 
July 31, 1998 and August 1, 1998 through July 31, 1999. The Department 
preliminarily determines that a 36.00 dumping margin exists for Reiner 
Brach GmbH & Co. KG's (``Reiner Brach'') sales of CTL plate in the 
United States for the period August 1, 1997 through July 31, 1998, and 
that a 36.00 dumping margin exists for Reiner Brach's sales of CTL 
plate in the United States for the period August 1, 1998 through July 
31, 1999. The preliminary results are listed in the section titled 
``Preliminary Results of the Reviews,'' infra. Interested parties are 
invited to comment on these preliminary results. Parties who submit 
comments are requested to submit with the argument: (1) a statement of 
the issues, and (2) a brief summary of the arguments.

EFFECTIVE DATE: September 7, 2000.

FOR FURTHER INFORMATION CONTACT: Robert A. Bolling, Enforcement Group 
III, Office 9, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue, 
NW., Washington, DC 20230, telephone 202-482-3434, fax 202-482-1388.

SUPPLEMENTARY INFORMATION:

Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (``Act''), are references to the provisions effective 
January 1, 1995, the effective date of the amendments made to the Act 
by the Uruguay Round Agreements Act (``URAA''). In addition, unless 
otherwise indicated, all citations to the Department's regulations are 
to the regulations codified at 19 CFR Part 351 (1999).

Background

    On August 19, 1993, the Department published the antidumping duty 
order on certain cut-to-length carbon steel plate from Germany. See 
Antidumping Duty Orders and Amendments to Final Determinations of Sales 
at Less Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products, 
Certain Cold-Rolled Carbon Steel Flat Products, Certain Corrosion-
Resistant Carbon Steel Flat Products and Certain Cut-to-Length Carbon 
Steel Plate From Germany, 58 FR 44170 (August 19, 1993) (``Antidumping 
Duty Order''). On August 11, 1998, the Department published a notice of 
opportunity to request administrative review of this order for the 
period August 1, 1997 through July 31, 1998. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity to Request Administrative Review, 63 FR 42821 (August 11, 
1998). Novosteel, a Swiss exporter of subject merchandise, timely 
requested that the Department conduct an administrative review of 
Novosteel's sales for this period (``97-98 Review''). On September 24, 
1998, Novosteel requested that the Department defer the 97-98 Review 
for a one year period, in accordance with 19 CFR 351.213(c); the 
Department agreed to this request. See Initiation of Antidumping and 
Countervailing Duty Administrative Review, Requests for Revocation in 
Part and Deferral of Administrative Reviews, 63 FR 58009 (October 29, 
1998). On August 11, 1999, the Department published a notice of 
opportunity to request administrative review of this order for the 
period August 1, 1998 through July 31, 1999. See Antidumping or 
Countervailing Duty Order, Finding, or Suspended Investigation; 
Opportunity to Request Administrative Review, 63 FR 42821 (August 11, 
1998). On August 13, 1999, Novosteel timely requested that the 
Department conduct an administrative review of Novosteel's U.S. entries 
for this period (``98-99 Review''). On August 31, 1999, Petitioners 
also timely requested that the Department conduct an administrative 
review of Novosteel's

[[Page 54206]]

U.S. entries for the 98-99 period of review (``POR''). In accordance 
with section 751(a) of the Act, the Department published in the Federal 
Register notices of initiation of the 97-98 Review and the 98-99 
Review. See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews and Requests for Revocation in Part, 64 FR 60161 
(November 4, 1999)(97-98); Initiation of Antidumping and Countervailing 
Duty Administrative Reviews and Requests for Revocation in Part, 64 FR 
53318 (October 1, 1999) (98-99).
    On October 4, 1999, the Department issued Novosteel its 
questionnaire for the 97-98 Review and the 98-99 Review. On December 9, 
1999, Novosteel responded to Section A of the Department's 
questionnaires. In the Section A response, sales documentation 
demonstrated that the producer of the subject merchandise, Reiner Brach 
had knowledge that the subject merchandise was being exported to the 
United States. See Exhibits 3 and 4 of the December 9, 1999 response. 
Also, on January 7, 2000, Novosteel responded to Sections B and C of 
the Department's questionnaires. On January 18, 2000, Petitioners 
submitted a request that the Department terminate the administrative 
reviews with respect to Novosteel, arguing that a review of Novosteel, 
a non-producing exporter, would only be appropriate where the supplier 
did not have knowledge that the merchandise would be exported to the 
United States. Petitioners argued that Novosteel's supplier, producer 
Reiner Brach, had knowledge that the merchandise would be sold to the 
United States and that, thus, the appropriate sales to be reviewed were 
those made by Reiner Brach to Novosteel. On February 2, 2000, Reiner 
Brach submitted a letter opposing termination of the administrative 
review of Novosteel and agreed to become a respondent for these 
administrative reviews.
    Based on the Novosteel's questionnaire responses, the Department 
determined that Reiner Brach not only was the producer of the subject 
merchandise, but also had knowledge that the products were destined for 
the United States, and that, thus, the sale between Reiner Brach and 
Novosteel was the appropriate link in the sales chain upon which the 
Department should be conducting its antidumping analysis regarding 
these sales of the subject merchandise in the United States during the 
aforementioned PORs. While the result of this change in focus is that 
the margin calculated in these reviews will be that of Reiner Brach, 
rather than of Novosteel, per se, Novosteel affirmatively accepted the 
change of analytical focus to Reiner Brach, and petitioners have not 
disagreed with this approach. Therefore, bearing these factors in mind, 
and in consideration of the small size and lack of experience of Reiner 
Brach, in addition to noting that two PORs are at issue, the Department 
determined that it was proper use of its discretion to conduct 
administrative reviews for the 97-98 and 98-99 PORs of Reiner Brach's 
sales.
    On February 15, 2000, the Department issued Reiner Brach 
questionnaires for the 97-98 and the 98-99 Reviews. On March 15, 2000, 
the Department received Reiner Brach's response to Section A of the 
Department's questionnaire, and on April 6, 2000 the Department 
received Reiner Brach's response to Sections B and C of the 
Department's questionnaire.
    On April 7, 2000, the Department determined that it was not 
practicable to complete these reviews within the normal time frame. 
Therefore, the Department extended the time limits for these 
administrative reviews to August 30, 2000. See Notice of Postponement 
of Preliminary Results of Antidumping Duty Administrative Reviews: 
Certain Cut-to-Length Carbon Steel Plate from Germany, 65 FR 18294 
(April 7, 2000).
    On April 26, 2000, we requested Reiner Brach to provide the 
Department with its missing variable cost of manufacturing (``VCOM'') 
and total cost of manufacturing (``TCOM'') data. On May 8, 2000, Reiner 
Brach provided the Department with its VCOM and TCOM data. On May 17, 
2000, the petitioners alleged that Reiner Brach was selling the subject 
merchandise in the home market below its cost of production. On May 25, 
2000, the Department issued a supplemental questionnaire on Sections A, 
B, and C to Reiner Brach. On June 5, 2000, the Department initiated a 
cost of production inquiry in this case, for both review periods, and 
requested that Reiner Brach respond to Section D of the questionnaire. 
On June 15, 2000, Reiner Brach responded to the Department's 
supplemental questionnaire of May 25, 2000. On June 29, 2000, the 
Department received Reiner Brach's response to Section D of the 
Department's questionnaire. On July 11 and 17, 2000, the Department 
issued a supplemental questionnaire on Section D, and additional 
questions on Sections A-C. On July 24, 2000, Reiner Brach responded to 
the Department's supplemental questionnaires of July 11 and July 17, 
2000.

Scope of the Reviews

    The products covered by these administrative reviews constitute one 
``class or kind'' of merchandise: certain cut-to-length carbon steel 
plate. These products include hot-rolled carbon steel universal mill 
plates (i.e., flat-rolled products rolled on four faces or in a closed 
box pass, of a width exceeding 150 millimeters but not exceeding 1,250 
millimeters and of a thickness of not less than 4 millimeters, not in 
coils and without patterns in relief), of rectangular shape, neither 
clad, plated, nor coated with metal, whether or not painted, varnished, 
or coated with plastics or other nonmetallic substances; and certain 
hot-rolled carbon steel flat-rolled products in straight lengths, of 
rectangular shape, hot rolled, neither clad, plated, nor coated with 
metal, whether or not painted, varnished, or coated with plastics or 
other nonmetallic substances, 4.75 millimeters or more in thickness and 
of a width which exceeds 150 millimeters and measures at least twice 
the thickness, as currently classifiable in the Harmonized Tariff 
Schedule (``HTS'') under item numbers 7208.40.3030, 7208.40.3060, 
7208.51.0030, 7208.51.0045, 7208.51.0060, 7208.52.0000, 7208.53.0000, 
7208.90.0000, 7210.70.3000, 7210.90.9000, 7211.13.0000, 7211.14.0030, 
7211.14.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and 
7212.50.0000. Included are flat-rolled products of nonrectangular 
cross-section where such cross-section is achieved subsequent to the 
rolling process (i.e., products which have been ``worked after 
rolling'')--for example, products which have been beveled or rounded at 
the edges. Excluded is grade X-70 plate. These HTS item numbers are 
provided for convenience and Customs purposes. The written description 
remains dispositive.

Periods of Review

    The periods of review (``POR'') for these administrative reviews 
are August 1, 1997 through July 31, 1998 and August 1, 1998 through 
July 31, 1999.

Verification

    In accordance with section 782(i) of the Act, the Department 
conducted verification of Reiner Brach's data for the 97-98 and 98-99 
PORs using standard verification procedures, including on-site 
inspection of the manufacturer's facilities, examination of relevant 
sales and financial records, and selection of original documentation 
containing relevant information.

[[Page 54207]]

Verification was conducted at Reiner Brach's headquarters in Mulheim, 
Germany from August 2, 2000 through August 5, 2000. See Home Market 
Verification Report of Reiner Brach GmbH & Co. KG, from Rick Johnson 
and Robert A. Bolling to the File (August 21, 2000).

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.
    At the verification of Reiner Brach, the Department discovered that 
Reiner Brach provided data on only a minimal portion of its home market 
sales of the foreign like product for each period of review. Reiner 
Brach stated at verification that it had only reported a minimal 
portion of its home market sales because it interpreted the Department 
of Commerce's questionnaire to mean that Reiner Brach only had to 
report identical sales in the home market that matched its U.S. sales. 
See Home Market Verification of Reiner Brach GmbH & Co. KG 
(``Verification Report'') dated August 21, 2000 at pages 2, 6, and 7.
    The Department also discovered at verification that Reiner Brach 
had failed to provide accurate and complete cost of production 
information. Reiner Brach stated at verification that it had reported 
costs for both PORs based on the same cost data. Although, according to 
a company official, Reiner Brach had the ability to provide its costs 
for each POR, it nevertheless did not do so. See Verification Report at 
page 11. Moreover, at verification Reiner Brach stated that cost data 
were available for both PORs, but Reiner Brach did not provide this 
data to the Department for several reasons. First, cost data for 1999 
were available, but the company did not have the personnel available to 
gather the data and allocate the costs to each cost center. Second, 
cost data for 1997 were available, but Reiner Brach did not review its 
records because the data was ``not of interest to Reiner Brach.'' 
Third, Reiner Brach did not use July 1999 costs becasue many of its 
employees were on vacation and July's costs would not have been 
representative of a normal production month. See Verification Report at 
page 11.
    Accordingly, Reiner Brach failed to provide the Department with 
information which the Department had requested and needed to calculate 
a dumping margin. Therefore, we determine that Reiner Brach withheld 
information requested by the Department. Therefore, the Department 
finds it necessary to use the facts otherwise available for Reiner 
Brach, in accordance with section 776(a)(2)(A) of the Act. Because the 
Department lacks both a useable home market sales database and a 
reliable cost database, the information provided cannot serve as a 
reliable basis for calculating a margin for Reiner Brach. Consequently, 
section 782(e) of the Act is inapplicable. Therefore, the Department is 
basing the results of both reviews on total facts available.
    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, Reiner Brach 
acknowledged that it had the requested data in its records and was 
capable of providing it to the Department, but nevertheless failed to 
provide a complete response to the Department's questionnaire. Thus, we 
find that Reiner Brach failed to cooperate by not acting to the best of 
its ability with respect to its home market sales and cost data. 
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.
    Section 776(b) of the Act 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 available, the Department is assigning to Reiner Brach, for both 
review periods, a dumping margin of 36.00 percent, which represents the 
highest rate determined for any company in any segment of the 
proceeding. This rate was calculated during the less-than-fair-value 
investigation. See Antidumping Duty Order. 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, the calculated margin information from the less-than-
fair-value investigation represents appropriate information for 
determining a dumping margin. The Department has determined that using 
this rate from the less-than-fair-value investigation as an adverse 
inference is proper because it is the highest calculated rate in this 
proceeding for certain cut-to-length plate from Germany and, as the 
``all others'' rate in this case, is the rate currently applicable to 
exports by Reiner Brach and Novosteel. Therefore, use of this 
information will ensure that the respondent does not obtain a more 
favorable result by failing to cooperate in these administrative 
reviews.
    Section 776(c) of the Act provides that, when the Department relies 
on secondary information (which, as explained in the SAA at 870, 
includes information from the petition or the investigation, or any 
previous reviews) as 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 has 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).
    The selected margin was a calculated rate based on information 
provided by one company, AG der Dillinger Huttenwerke (``Dillinger''). 
See Notice of Final Determinations of Sales at Less Than Fair Value: 
Certain Hot-Rolled Carbon Steel Flat Products, Certain Cold-Rolled 
Carbon Steel Flat Products, Certain Corrosion-Resistant Carbon Steel 
Flat Products and Certain Cut-to-Length Carbon Steel Plate From 
Germany, 58 FR 37136 (July 9, 1993) (``LTFV Final Determination''); and 
Amendment to Final Results of Antidumping Duty Administrative Review: 
Certain Cut-To-Length Carbon Steel Plate from Germany, 61 FR 26159 (May 
24, 1996); Final Results of Antidumping Duty Administrative Review: 
Certain Cut-To-Length Carbon Steel Plate from Germany, 62 FR 18390 
(April 15, 1997). Therefore, the Department has determined that the 
selected rate is a usable rate.

[[Page 54208]]

Additionally, the United States Court of International Trade (``CIT'') 
has upheld the Department's use of an ``all others'' rate from the 
investigation as facts available in a subsequent review. See Kompass 
Food Trading International, et al. The United States, Slip Op. 00-90 
(July 31, 2000), at 14. Further, we have determined that no record 
evidence indicates that the business practices of Reiner Brach differ 
significantly of those of other members of the German steel industry. 
Accordingly, we find, for purposes of this preliminary results, that 
the ``all others'' margin from the LTFV Final Determination, which is 
the rate currently applicable to Reiner Brach, is corroborated to the 
extent practicable.

Preliminary Results of the Reviews

    We preliminarily determine that the following percentage weighted-
average margins exist for the periods August 1, 1997 through July 31, 
1998 and August 1, 1998 through July 31, 1999:

------------------------------------------------------------------------
                                                               Weighted-
                                                                average
               Producer/Manufacturer/ Exporter                   margin
                                                               (percent)
------------------------------------------------------------------------
                   Certain Welded Stainless Steel Pipe
------------------------------------------------------------------------
Reiner Brach (97-98 Review)..................................      36.00
Reiner Brach (98-99 Review)..................................      36.00
------------------------------------------------------------------------

    The Department will disclose calculations performed within five 
days of the date of publication of this notice to the parties of this 
proceeding in accordance with 19 CFR 351.224(b). An interested party 
may request a hearing within 30 days of publication of these 
preliminary results. See 19 CFR 351.310(c). Any hearing, if requested, 
will be held 37 days after the date of publication, or the first 
working day thereafter. Interested parties may submit case briefs and/
or written comments no later than 30 days after the date of publication 
of these preliminary results of review. Rebuttal briefs and rebuttals 
to written comments, limited to issues raised in such briefs or 
comments, may be filed no later than 35 days after the date of 
publication. Parties who submit arguments are requested to submit with 
the argument (1) a statement of the issue, (2) a brief summary of the 
argument and (3) a table of authorities. Further, we would appreciate 
it if parties submitting written comments would provide the Department 
with an additional copy of the public version of any such comments on 
diskette. The Department will issue the final results of this 
administrative review, which will include the results of its analysis 
of issues raised in any such comments, within 120 days of publication 
of these preliminary results.
    Upon issuance of the final results of the review, the Department 
will determine, and Customs will assess, antidumping duties on all 
appropriate entries. The Department will issue appraisement 
instructions directly to Customs. The final results of this review will 
be the basis for the assessment of antidumping duties on entries of 
merchandise covered by the results and for future deposits of estimated 
duties.
    Furthermore, the following deposit requirements will be effective 
upon completion of the final results of this administrative review for 
all shipments of the subject merchandise entered, or withdrawn from 
warehouse, for consumption on or after the publication of the final 
results of this administrative review, as provided in section 751(a)(1) 
of the Act: (1) The cash deposit rate for Reiner Brach, the only 
reviewed company, will be that established in the final results of the 
98-99 Review; (2) for previously reviewed or investigated companies not 
covered in this review, the cash deposit rate will continue to be the 
company-specific rate published for the most recent period; (3) if the 
exporter is not a firm covered in this review, a prior review, or the 
original LTFV investigation, but the manufacturer is, the cash deposit 
rate will be the rate established in the most recent period for the 
manufacturer of the merchandise; and (4) if neither the exporter nor 
the manufacturer is a firm covered in this or any previous review 
conducted by the Department, the cash deposit rate will continue to be 
the ``all others'' rate established in the LTFV investigation, which 
was 36.00 percent. See LTFV Final Determination.
    This notice serves as a preliminary reminder to importers of their 
responsibility under 19 CFR 351.402(f) to file a certificate regarding 
the reimbursement of antidumping duties prior to liquidation of the 
relevant entries during this review period. Failure to comply with this 
requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties has occurred and the subsequent 
assessment of double antidumping duties.
    This administrative review and notice is published in accordance 
with sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: August 30, 2000.
Troy H. Cribb,
Acting Assistant Secretary for Import Administration.
[FR Doc. 00-22991 Filed 9-7-00; 8:45 am]
BILLING CODE 3510-DS-P