[Federal Register Volume 66, Number 69 (Tuesday, April 10, 2001)]
[Notices]
[Pages 18610-18612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8818]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-583-830]


Stainless Steel Plate in Coils From Taiwan: Final Rescission of 
Antidumping Duty Administrative Review

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

ACTION: Notice of final rescission of antidumping duty administrative 
review.

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SUMMARY: In response to timely requests from petitioners and Yieh 
United Steel Corporation (``YUSCO'') \1\, a Taiwan producer and 
exporter of subject merchandise, on July 7, 2000, in accordance with 
section 751(a) of the Act, the Department published in the Federal 
Register a notice of initiation of this antidumping duty administrative 
review of sales by YUSCO and Ta Chen Stainless Pipe, Ltd. (``Ta Chen'') 
for the period November 4, 1998 through April 30, 2000. See Initiation 
of Antidumping and Countervailing Duty Administrative Reviews and 
Requests for Revocations in Part, 65 FR 41942 (July 7, 2000). On 
December 4, 2000, the Department of Commerce published a notice of 
preliminary rescission of this review as a result of the absence of 
entries into the United States of subject merchandise during the period 
of review (65 FR 75760). The Department is now publishing its final 
determination to rescind this review.
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    \1\ YUSCO withdrew its request for review on July 19, 2000.
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    Petitioners are Allegheny Ludlum, AK Steel Corporation, Butler 
Armco Independent Union, J&L Specialty Steel, Inc., North American 
Stainless, United Steelworkers of America, AFL-CIO/CLC, and Zanesville 
Armco Independent Organization.

EFFECTIVE DATE: April 10, 2001.

FOR FURTHER INFORMATION CONTACT: Rick Johnson, Import Administration, 
International Trade Administration, U.S. Department of Commerce, 14th 
Street and Constitution Avenue, NW., Washington, DC 20230; telephone: 
(202) 482-3818.

SUPPLEMENTARY INFORMATION:

Applicable Statute

    Unless otherwise indicated, all citations to the Tariff Act of 
1930, as amended (``the 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. In addition, unless 
otherwise indicated, all citations to the Department of Commerce's 
regulations are to 19 CFR part 351 (2000).

Background

    On July 10, 2000, the Department issued its antidumping duty 
questionnaire to YUSCO and Ta Chen. On July 19, 2000, along with 
withdrawing its request for an administrative review, YUSCO requested 
that the Department rescind this review, claiming it made no entries of 
subject merchandise into the United States during the POR. On July 27, 
2000, the Department solicited comments on YUSCO's request for 
rescission. See Memo to the File from Juanita H. Chen (July 27, 2000). 
On August 8, 2000, YUSCO submitted its Section A response to the 
Department's questionnaire. YUSCO reiterated its request for rescission 
on August 16, 2000. Also on that date, petitioners filed comments 
opposing YUSCO's request for rescission, which included references to 
the original investigation indicating that Ta Chen's U.S. affiliate, Ta 
Chen International (CA) Corp. (``TCI''), made sales of YUSCO's 
merchandise during the POR and had additional inventory not yet sold. 
On July 31, 2000, Ta Chen stated that it did not have any U.S. sales, 
shipments or entries of subject merchandise during the POR, and 
requested that it not be required to answer the Department's 
questionnaire. On August 1, 2000, the Department asked Ta Chen a 
supplemental question regarding shipments in the POR falling under a 
certain Harmonized Tariff Schedule of the United States (``HTS'') 
number, and gave Ta Chen an extension of time in which to respond to 
the antidumping duty questionnaire. On August 9, 2000, Ta Chen repeated 
its statement that it did not have any U.S. sales, shipments or entries 
during the POR, stated that imports under the HTS number were cut-to-
length stainless steel plate and not subject merchandise, and repeated 
its request not to have to answer the Department's questionnaire. On 
August 24, 2000, the Department denied Ta Chen's request that it not be 
required to answer the questionnaire, and issued supplemental questions 
to Ta Chen. On August 31 and September 5, 2000, Ta Chen responded to 
the Department's supplemental questions, stating that of TCI's sales of 
YUSCO's merchandise from TCI's U.S. warehouse inventory during the POR, 
all merchandise entered before the POR. Ta Chen also stated that while 
there was a sale of subject merchandise from YUSCO to TCI during the 
POR, such subject merchandise entered the United States and was resold 
after the POR. Ta Chen also stated that, for these reasons, it did not 
intend to answer the Department's questionnaire.
    On September 12, 2000, petitioners submitted comments on Ta Chen's 
response to the Department's supplemental questions, arguing that the 
Department should review TCI's resales of YUSCO's merchandise as 
constructed export price (``CEP'') sales, citing to Silicon Metal from 
Brazil; Final Results of Antidumping Duty Administrative Review, 59 FR 
42806 (August 19, 1994). On September 26, 2000, the Department informed 
Ta Chen of its intention to conduct a review of TCI's sales, and asked 
that Ta Chen submit its response no later than October 10, 2000. Ta 
Chen failed to submit a response. On September 19, 2000, the Department 
conducted an inspection of Customs documentation at the U.S. Customs 
Service (``Customs'') in Long Beach, California. A review of a random 
sampling of entries during the POR revealed that none of the entries 
were of subject merchandise. See Memo to the File from Carrie Blozy and 
Juanita H. Chen (October 19, 2000). On October 24, 2000, the Department 
informed petitioners that as a result of this inspection, as well as a 
separate Customs inquiry, the Department intended to revisit the issue 
of whether

[[Page 18611]]

it is appropriate to continue this administrative review. See Memo to 
the File from Juanita H. Chen through Edward Yang (October 25, 2000).
    On December 4, 2000, the Department published a notice of 
preliminary rescission of antidumping duty administrative review on 
stainless steel plate in coils from Taiwan with respect to YUSCO and Ta 
Chen (65 FR 75670), based on record evidence indicating that there were 
no entries into the United States of subject merchandise during the 
POR.
    On December 18, 2000, petitioners filed comments objecting to the 
Department's preliminary findings. Neither YUSCO nor Ta Chen filed 
comments. See ``Interested Party Comments'' below.

Scope of the Review

    For purposes of this review, the product covered is certain 
stainless steel plate in coils. Stainless steel is an alloy steel 
containing, by weight, 1.2 percent or less of carbon and 10.5 percent 
or more of chromium, with or without other elements. The subject plate 
products are flat-rolled products, 254 mm or over in width and 4.75 mm 
or more in thickness, in coils, and annealed or otherwise heat treated 
and pickled or otherwise descaled. The subject plate may also be 
further processed (e.g., cold-rolled, polished, etc.) provided that it 
maintains the specified dimensions of plate following such processing. 
Excluded from the scope of this review are the following: (1) Plate not 
in coils, (2) plate that is not annealed or otherwise heat treated and 
pickled or otherwise descaled, (3) sheet and strip, and (4) flat bars. 
In addition, certain cold-rolled stainless steel plate in coils is also 
excluded from the scope of these orders. The excluded cold-rolled 
stainless steel plate in coils is defined as that merchandise which 
meets the physical characteristics described above that has undergone a 
cold-reduction process that reduced the thickness of the steel by 25 
percent or more, and has been annealed and pickled after this cold 
reduction process. The merchandise subject to this review is currently 
classifiable in the HTS at subheadings: 7219.11.00.30, 7219.11.00.60, 
7219.12.00.05, 7219.12.00.20, 7219.12.00.25, 7219.12.00.50, 
7219.12.00.55, 7219.12.00.65, 7219.12.0070, 7219.12.00.80, 
7219.31.00.10, 7219.90.00.10, 7219.90.00.20, 7219.90.00.25, 
7219.90.00.60, 7219.90.00.80, 7220.11.00.00, 7220.20.10.10, 
7220.20.10.15, 7220.20.10.60, 7220.20.10.80, 7220.20.60.05, 
7220.20.60.10, 7220.20.60.15, 7220.20.60.60, 7220.20.60.80, 
7220.90.00.10, 7220.90.00.15, 7220.90.00.60, and 7220.90.00.80. 
Although the HTS subheadings are provided for convenience and Customs 
purposes, the written description of the merchandise under 
investigation is dispositive.

Interested Party Comments

    Comment 1: Petitioners request that the Department reconsider its 
policy of considering merchandise entered into the United States prior 
to suspension of liquidation under an antidumping duty order not to 
constitute subject merchandise within the meaning of section 771(25) of 
the Act. Petitioners recognize that this policy is explicitly stated in 
the preamble to the Department's regulations and has been followed in 
prior determinations by the Department. See Antidumping Duties; 
Countervailing Duties; Final Rule, 62 FR 27296, 27314 (May 19, 1997) 
(``Preamble''); Certain Stainless Steel Wire Rods from France, 61 FR 
47874, 47875 (September 11, 1996) (``French Wire Rod''). However, 
petitioners argue that the statute defines subject merchandise as the 
class or kind of merchandise within the scope of an investigation and 
order and not by when the merchandise enters the United States. 
Petitioners argue that the merchandise Ta Chen resold during the period 
of the first administrative review, but that apparently entered the 
United States prior to the period of review, is subject merchandise of 
the class or kind under order under the ``classic'' standards listed in 
the Department's regulations at 19 CFR 351.225(k). See also Diversified 
Products Corp. v. United States, 572 F. Supp. 883, 887 (CIT 1983) 
(``Diversified Products'').
    Petitioners therefore argue that the Department should proceed with 
an administrative review of Ta Chen's CEP sales for the purposes of 
setting a cash deposit rate. While petitioners recognize that no 
entries will be liquidated at the new rate, they argue that neither the 
statute nor the legislative history indicate that a review should be 
rescinded unless there are entries to be liquidated as well as a cash 
deposit rate to be established. In fact, petitioners assert that 
conducting a review to establish cash deposit rates is consistent with 
the goal highlighted in Rhone Poulenc, Inc. v. United States, 899 F. 2d 
1185, 1191 (Fed. Cir. 1990) (Rhone Poulenc) of maintaining current, 
accurate dumping margins as much as possible. Petitioners stress that 
the significance of the cash deposit requirement should not be lost or 
minimized, as recognized, for example, by the court in Badger-Powhatan, 
A Div. of Figgie Intern. v. United States, 633 F. Supp. 1364 (CIT 
1986). Moreover, petitioners maintain that there is nothing to suggest 
that dumping margins for cash deposits must include or reflect margins 
based upon U.S. sales prices of entered goods to some extent, and refer 
to the Department's approach in Torrington Co. v. United States, 44 
F.3d 1572, 1578 (Fed. Cir. 1995) as an example of establishing a cash 
deposit rate based on information other than traceable entries during 
the period of review.
    Petitioners also argue that the Department's regulations, at 19 CFR 
351.213(e)(1)(ii), support review of Ta Chen's CEP sales. Specifically, 
petitioners maintain that a reasonable interpretation of the 
Department's regulations is that the Department will conduct an 
administrative review as long as there are any entries, exports, or 
sales {petitioners' emphasis}.
    Finally, petitioners add that the Department has reviewed sales 
which entered the United States prior to suspension of liquidation in 
past cases, and has been upheld by the court in doing so (as long as 
those sales were not assessed antidumping duties), citing, e.g., Ad Hoc 
Committee of S. Ca. Producers v. United States, 914 F. Supp. 535 (CIT 
1995), and STC Corp. v. United States, 990 F. Supp. 829 (CIT 1997) 
(``STC Corp.''). However, in citing STC Corp. petitioners take issue 
with the Court's agreement with Commerce that a link must be 
established between sales and entries (that is, that sales will not be 
reviewed if they are linked to entries occurring prior to suspension of 
liquidation). Specifically, the court noted that it found ``that the 
employment of Commerce's link test results in a more accurate 
administration of the dumping statute because it properly excludes 
irrelevant sales from the dumping determination.'' Petitioners argue 
that the legality of the Department's linking policy does not appear to 
have been before the court for decision, and the court's comments do 
not seem to have been necessary to the court's holding that the 
plaintiff had not established the link with respect to the single U.S. 
sale that it wanted not to be considered in the Department's dumping 
calculations. Petitioners continue that the court ``simply assumed'' 
that ESP (now CEP) sales made during a first review period are 
irrelevant when their entries occur before suspension of liquidation.
    Department's Position: We disagree with petitioners. As the 
Department stated in the preliminary rescission notice, the Department 
has previously

[[Page 18612]]

determined that ``(s)ales of merchandise that can be demonstrably 
linked with entries prior to the suspension of liquidation are not 
subject merchandise and therefore are not subject to review by the 
Department.'' See French Wire Rod at 47875; see also Preamble at 27314. 
This long-standing practice is based on the Department's interpretation 
of the statute and various policy considerations. Petitioners have not 
presented convincing arguments warranting a change in this practice.
    Petitioners have disputed the Department's description of 
merchandise which entered prior to suspension of liquidation as being 
``not subject merchandise within the meaning of 771(25) of the Act.'' 
See French Wire Rod at 47875. We disagree with petitioners. Section 
771(25) of the Act defines ``subject merchandise'' as meaning ``the 
class or kind of merchandise that is within the scope of an 
investigation, a review, a suspension agreement, an order under this 
subtitle or section 1303 of this title, or a finding under the 
Antidumping Act, 1921.'' 19 USC 1677(25). Therefore, if merchandise is 
not within the scope of the order (or, as the case may be, the 
investigation, review, or suspension agreement), it is not subject 
merchandise. While we do not disagree with petitioners that the sales 
in question are of merchandise physically meeting the scope of the 
order, we believe that the statute's reference to ``an investigation, a 
review, a suspension agreement, an order'' necessarily limits the 
definition of subject merchandise to that merchandise which is subject 
to an investigation, a review, a suspension agreement, and/or an order. 
It is in this regard that the Department must consider the timing of 
the entries at issue.
    In accordance with section 736(b) of the statute, the order on 
stainless steel plate in coils from Taiwan covers entries of 
merchandise beginning on the date of publication of the affirmative 
preliminary determination, which was November 4, 1998. That this date 
represents the first date of the antidumping order is evident from the 
order notice itself. See Antidumping Duty Orders; Certain Stainless 
Steel Plate in Coils From Belgium, Canada, Italy, the Republic of 
Korea, South Africa, and Taiwan, 64 FR 27756 (May 21, 1999) (``In 
accordance with section 736(a)(1) of the Tariff Act, the Department 
will direct Customs officers to assess, upon further advice by the 
Department, antidumping duties * * * for all relevant entries of 
stainless steel plate in coils from * * * Taiwan. * * * These 
antidumping duties will be assessed on all unliquidated entries of 
stainless steel plate in coils from * * * Taiwan * * * entered, or 
withdrawn from warehouse, for consumption on or after November 4, 1998, 
the date on which the Department published its notices of preliminary 
determination in the Federal Register (63 FR 59524 through 59544).'').
    The Department has a long-standing and consistent practice of 
excluding sales of merchandise entering prior to suspension of 
liquidation, on the grounds that such merchandise was not covered by 
the order, as long as the sales made after entry can be demonstrably 
linked to entries made prior to suspension of liquidation. See, e.g., 
High-Tenacity Rayon Filament Yarn, Preliminary Results of Antidumping 
Duty Administrative Review, 59 FR 32181, 32182 (June 22, 1994). While 
petitioners do not argue that such merchandise be assessed the new 
calculated rate, petitioners' assertion that such sales can serve as 
the basis for setting a cash deposit rate is inaccurate, because, as 
discussed above, the sales at issue are not of subject merchandise. As 
the Department stated in French Wire Rod: ``{s}ales of non-subject 
merchandise are not an appropriate basis for the Department to estimate 
the duties that will be due on future entries of subject merchandise.'' 
61 FR at 47878. Certainly, consideration of the establishment of a new 
cash deposit rate in Stainless Steel Plate in Coils from Taiwan is 
doubly inappropriate when a cash deposit rate based on sales of subject 
merchandise appropriately covered by the investigation has indeed been 
established.
    Finally, we believe that the Department's finding of middleman 
dumping in the LTFV investigation does not constitute sufficient 
grounds to allow for the Department's consideration of the sales at 
issue. Regardless of the existence of middleman dumping, the sales at 
issue are CEP sales that have been demonstratively linked to entries 
made prior to the suspension of liquidation under the order. The 
identity of the exporter (e.g., whether the producer or the middleman) 
is irrelevant to the question of whether such merchandise is subject or 
non-subject.
    For the foregoing reasons, the Department is hereby rescinding the 
administrative review based on the absence of entries into the United 
States of the subject merchandise during the period of review.

Final Rescission of Review

    Pursuant to 19 CFR 351.213(d)(3), the Department may rescind an 
administrative review, in whole or only with respect to a particular 
exporter or producer, if the Secretary concludes that, during the 
period covered by the review, there were no entries, exports, or sales 
of the subject merchandise, as the case may be. As discussed above, in 
this case, the available evidence indicates that there were no entries 
of stainless steel plate in coils produced or exported from Taiwan 
during the POR. Therefore, we have decided to rescind this review with 
respect to both Ta Chen and YUSCO in accordance with 19 CFR 
351.213(d)(3). The cash-deposit rates for Ta Chen and YUSCO will remain 
as established in the original less-than-fair-value investigation.
    This notice is published in accordance with 19 CFR 351.213(d)(4). 
Effective January 20, 2001, Bernard T. Carreau is fulfilling the duties 
of the Assistant Secretary for Import Administration.

    Dated: April 3, 2001.
Bernard T. Carreau,
Deputy Assistant Secretary, Import Administration.
[FR Doc. 01-8818 Filed 4-9-01; 8:45 am]
BILLING CODE 3510-DS-P