[Federal Register Volume 67, Number 90 (Thursday, May 9, 2002)]
[Notices]
[Pages 31192-31195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11183]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-602-804]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Carbon Steel Flat Products From Australia

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

EFFECTIVE DATE: May 9, 2002.

FOR FURTHER INFORMATION CONTACT: Paige Rivas at (202) 482-0651 or Mark 
Manning at (202) 482-5253, AD/CVD Enforcement Office IV, Group II, 
Import Administration, Room 1870, International Trade Administration, 
U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230.

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 Department of Commerce (Department) 
regulations refer to the regulations codified at 19 CFR part 351 (April 
2001).

Preliminary Determination

    We preliminarily determine that certain cold-rolled carbon steel 
flat products (cold-rolled steel) from Australia are being sold, 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.

Case History

    This investigation was initiated on October 18, 2001.\1\ See Notice 
of Initiation of Antidumping Duty Investigations: Certain Cold-Rolled 
Carbon Steel Flat Products From Argentina, Australia, Belgium, Brazil, 
France, Germany, India, Japan, Korea, the Netherlands, New Zealand, the 
People's Republic of China, the Russian Federation, South Africa, 
Spain, Sweden, Taiwan, Thailand, Turkey, and Venezuela, 66 FR 54198 
(October 26, 2001) (Initiation Notice). Since the initiation of the 
investigation, the following events have occurred.
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    \1\ The petitioners in this investigation are Bethlehem Steel 
Corporation, LTV Steel Company Inc., National Steel Corporation, 
Nucor Corporation, Steel Dynamics, Inc., United States Steel 
Corporation, WCI Steel Inc., and Weirton Steel Corporation 
(collectively, the petitioners).
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    On October 31, 2002, we solicited comments from interested parties 
regarding the criteria to be used for model-matching purposes, and we 
received comments on our proposed matching criteria on November 8, 
2001. On November 8, 2001, we received model match comments from 
petitioners and respondents. On November 26, 3001, we informed 
respondents of our revised model match criteria.
    On November 13, 2001, the United States International Trade 
Commission (ITC) preliminarily determined that there is a reasonable 
indication that an industry in the United States is materially injured 
or threatened with material injury by reason of imports from Argentina, 
Australia, Belgium, Brazil, China, France, Germany, India, Japan, 
Korea, the Netherlands, New Zealand, Russia, South Africa, Spain, 
Sweden, Taiwan, Thailand, Turkey, and Venezuela of cold-rolled steel 
products. See Certain Cold-Rolled Steel Products From Argentina, 
Australia, Belgium, Brazil, China, France, Germany, India, Japan, 
Korea, Netherlands, New Zealand, Russia, South Africa, Spain, Sweden, 
Taiwan, Thailand, Turkey, and Venezuela, 66 FR 57985 (November 19, 
2001).
    On November 19, 2001, the Department issued a complete antidumping 
questionnaire to Broken Hill Propriety Limited Steel (BHP JLA), and BHP 
Steel Americas (BHPSA)

[[Page 31193]]

(collectively known as BHP).\2\ We issued a corrected version of 
appendix V with revised product characteristic variables on November 
26, 2001. BHP submitted its Section A response on December 10, 2001. On 
December 21, 2001, the Department issued a Section A supplemental 
questionnaire. On January 14, 2002, BHP submitted its responses to the 
Department's Sections B and C questionnaire, as well as the Section A 
supplemental questionnaire. On February 21, 2002, the Department issued 
a Sections A, B, and C supplemental questionnaire. BHP submitted its 
response to the Department's Sections A, B, and C supplemental 
questionnaire on March 18, 2002. On March 28, 2002, BHP submitted its 
supplemental B and C narrative responses for sales of strapping steel 
and tin mill black plate.
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    \2\ Section A of the questionnaire requests general information 
concerning a company's corporate structure and business practices, 
the merchandise under investigation that it sells, and the manner in 
which it sells that merchandise in all of its markets. Section B 
requests a complete listing of all home market sales, or, if the 
home market is not viable, of sales in the most appropriate third-
country market (this section is not applicable to respondents in 
non-market economy (NME) cases). Section C requests a complete 
listing of U.S. sales. Section D requests information on the cost of 
production (COP) of the foreign like product and the constructed 
value (CV) of the merchandise under investigation. Section E 
requests information on further manufacturing.
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    Based on our analysis of a sales below cost allegation submitted on 
February 4, 2002 (and revised on February 20, 2002), we found that 
there were reasonable grounds to believe or suspect that the 
respondent's sales of the subject merchandise in its comparison market 
were made at prices below its cost of production (COP). Accordingly, 
pursuant to section 773(b) of the Act, we initiated a sales-below-cost 
investigation. See Memorandum to Holly A. Kuga, ``Bethlehem Steel 
Corporation, National Steel Corporation, and United States Steel 
Corporation (petitioners) Allegation of Home Market Sales Below the 
Cost of Production (Sales-Below-Cost) for Broken Hill Proprietary Steel 
(JLA) Pty Ltd. (BHP),'' (Cost Memorandum) (March 8, 2002), on file in 
the Central Records Unit (CRU), Room B-099 of the main Department of 
Commerce building. On March 11, 2002, we notified BHP of our decision 
to initiate a sales-below-cost investigation and instructed BHP to 
respond to Section D of the questionnaire, which was provided to BHP in 
the original questionnaire on November 19, 2001. BHP submitted its 
Section D response on March 29, 2002.
    On February 7, 2002, the petitioners requested a postponement of 
the preliminary determination in this investigation. On February 22, 
2002, the Department published a Federal Register notice postponing the 
deadline for the preliminary determination until April 26, 2002. See 
Postponement of Preliminary Determinations of Antidumping Duty 
Investigations. Certain Cold-Rolled Carbon Steel Flat Products from 
Argentina (A-357-816), Australia (A-602-804), Belgium (A-423-811), 
Brazil (A-351-834), the People's Republic of China (A-570-872), France 
(A-427-822), Germany (A-428-834), India (A-533-826), Japan (A-588-859), 
Korea (A-580-848), the Netherlands (A-421-810), New Zealand (A-614-
803), Russia (A-821-815), South Africa (A-791-814), Spain (A-469-812), 
Sweden (A-401-807), Taiwan (A-583-839), Thailand (A-549-819), Turkey 
(A-489-810) and Venezuela (A-307-822), 67 FR 36 (February 22, 2002).
    In two letters dated April 23, 2002, BHP notified the Department of 
its intent to not participate further in the investigation and 
requested to withdraw its data from the record of the investigation. 
The Department is sending a letter to BHP certifying the removal and 
destruction of all proprietary copies of BHP's questionnaire responses.

Critical Circumstances

    In a letter dated December 7, 2001, the petitioners alleged that 
there is a reasonable basis to believe or suspect that critical 
circumstances exist with respect to imports of cold-rolled steel from 
Australia. On April 10, 2002, the Department preliminarily determined 
that critical circumstances exist with respect to imports of cold-
rolled steel from Australia. See Memorandum From Bernard Carreau to 
Faryar Shirzad Re: Preliminary Affirmative Determinations of Critical 
Circumstances; see also Notice of Preliminary Determination of Critical 
Circumstances: Certain Cold-Rolled Carbon Steel Flat Products From 
Australia, the People's Republic of China, India, the Republic of 
Korea, the Netherlands, and the Russian Federation, 67 FR 19157 (April 
18, 2002) (Critical Circumstances Notice).

Period of Investigation

    The period of investigation (POI) is July 1, 2000, through June 30, 
2001. This period corresponds to the four most recent fiscal quarters 
prior to the month of the filing of the petition (i.e., September 
2001).

Scope of Investigation

    For purposes of this investigation, the products covered are 
certain cold-rolled (cold-reduced) flat-rolled carbon-quality steel 
products. For a full description of the scope of this investigation, 
please see the Scope Appendix attached to the Notice of Preliminary 
Determination of Sales at Less Than Fair Value: Certain Cold-Rolled 
Carbon Steel Flat Products from Argentina, published concurrently with 
this preliminary determination.

Facts Available (FA)

1. Application of FA

    Section 776(a)(2) of the Act provides that, if an interested party 
(A) withholds information requested by the Department, (B) fails to 
provide such information by the deadline, or in the form or manner 
requested, (C) significantly impedes a proceeding, or (D) provides 
information that cannot be verified, the Department shall use, subject 
to sections 782(d) and (e) of the Act, facts otherwise available in 
reaching the applicable determination.
    Pursuant to section 782(e) of the Act, the Department shall not 
decline to consider submitted information if all of the following 
requirements are met: (1) The information is submitted by the 
established deadline; (2) the information can be verified; (3) the 
information is not so incomplete that it cannot serve as a reliable 
basis for reaching the applicable determination; (4) the interested 
party has demonstrated that it acted to the best of its ability; and 
(5) the information can be used without undue difficulties.
    On April 23, 2002, BHP notified the Department that it did not 
intend to participate further in the Department's investigation and 
requested the return of all of its data. BHP was notified by the 
Department in all of our correspondence concerning the due dates for 
submitting data that failure to submit the requested information by the 
date specified may result in use of the FA, as required by section 
776(c) of the Act and section 351.308 of the Department's regulations. 
See letters from the Department to BHP dated December 7, 2001; December 
21, 2001; December 28, 2001; January 4, 2002; February 21, 2002; March 
7, 2002; March 22, 2002; and April 17, 2002.
    As described above, BHP withdrew its response to the Department's 
questionnaire. Because BHP withheld information requested by the 
Department essential to the calculation of dumping margins, pursuant to 
section 776(a)(2) of the Act, we have applied FA to calculate the 
dumping margin.

2. Selection of Adverse FA (AFA)

    In selecting from among the facts otherwise available, section 
776(b) of the Act authorizes the Department to use an adverse inference 
if the

[[Page 31194]]

Department finds that an interested party failed to cooperate by not 
acting to the best of its ability to comply with the request for 
information. See, e.g., Certain Welded Carbon Steel Pipes and Tubes 
From Thailand: Final Results of Antidumping Duty Administrative Review, 
62 FR 53808, 53819-20 (October 16, 1997). As a general matter, it is 
reasonable for the Department to assume that BHP possessed the records 
necessary for the Department to complete its investigation since it 
provided a nearly complete response before withdrawing it from the 
record. Therefore, by withdrawing the information the Department 
requested, BHP failed to cooperate to the best of its ability. As BHP 
failed to cooperate to the best of its ability, we are applying an 
adverse inference pursuant to section 776(b) of the Act. As AFA, we 
have used 24.06 percent, the rate derived from the petition. See 
Initiation Notice.

3. Corroboration of Information

    Section 776(b) of the Act authorizes the Department to use as AFA 
information derived from the petition, the final determination from the 
LTFV investigation, a previous administrative review, or any other 
information placed on the record.
    Section 776(c) of the Act requires the Department to corroborate, 
to the extent practicable, secondary information used as FA. Secondary 
information is defined as ``information derived from the petition that 
gave rise to the investigation or review, the final determination 
concerning the subject merchandise, or any previous review under 
section 751 concerning the subject merchandise.'' See Statement of 
Administrative Action (SAA) accompanying the URAA, H.R. Doc. No. 103-
316 at 870 (1994) and 19 CFR 351.308(d).
    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).
    In order to determine the probative value of the margins in the 
petition for use as AFA for purposes of this determination, we examined 
evidence supporting the calculations in the petition. 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 Australia Initiation 
Checklist (Initiation Checklist) on file in the CRU for a discussion of 
the margin calculation in the petition). In addition, in order to 
determine the probative value of the margin in the petition for use as 
AFA for purposes of this determination, we examined evidence supporting 
the calculation in the petition. In accordance with section 776(c) of 
the Act, to the extent practicable, we examined the key elements of the 
export price (EP) and normal value (NV) calculations on which the 
margin in the petition was based.

Export Price

    With respect to the margin in the petition, EP was based on average 
per-unit customs import value (AUV) data for one HTSUS category that 
accounted for a large portion of imports of subject merchandise from 
Australia during the period. The petitioners made no adjustments to EP 
because using an unadjusted AUV as the export price is a conservative 
methodology. Our review of the EP calculation indicated that the 
information in the petition has probative value, as certain information 
(e.g., import statistics) included in the margin calculation in the 
petition is from public sources and concurrent, for the most part, with 
the POI. Consequently we consider EPs which are based on U.S. customs 
data corroborated. See Certain Cut-to-Length Carbon Steel Plate from 
Mexico: Final Results of Antidumping Duty Administrative Review, 64 FR 
76, 84 (January 4, 1999) (Comment 13).

Normal Value

    The petitioners calculated NV from price information obtained from 
foreign market research for grades and sizes of cold-rolled steel 
comparable to the products exported to the United States which serve as 
the basis for EP. The petitioners made no adjustment to NV. With regard 
to the NV contained in the petition, the Department has no useful 
information from the respondent or other interested parties and is 
aware of no other independent sources of information that would enable 
us to further corroborate the margin calculations in the petition. See 
Initiation Checklist.
    It is worth noting that the implementing regulation for section 776 
of the Act 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 secondary 
information in question.'' See 19 CFR 351.308(c). Additionally, the SAA 
at 870 specifically states that where ``corroboration may not be 
practicable in a given circumstance, the Department need not prove that 
the facts available are the best alternative information.'' Therefore, 
based on our efforts, described above, to corroborate information 
contained in the petition, and in accordance with section 776(c) of the 
Act, we consider the margins in the petition to be corroborated to the 
extent practicable for purposes of this preliminary determination.
    Accordingly, in selecting AFA with respect to BHP, the Department 
applied the petition rate of 24.06 percent.

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. This 
provision contemplates that the Department may weight-average margins 
other than zero, de minimis, and FA margins to establish the ``all 
others'' rate. Where the data do not permit weight-averaging such 
rates, the SAA, at 873, provides that we may use other reasonable 
methods. Because the petition contained only an estimated price-to-
price dumping margin, there are no additional estimated margins 
available with which to create the ``all others'' rate. Therefore, we 
applied the petition margin of 24.06 percent as the ``all others'' 
rate. See, e.g., Notice of Preliminary Determination of Sales at Less 
Than Fair Value: Certain Hot-Rolled Carbon Steel Flat Products From 
Indonesia, 66 FR 22163 (May 3, 2001).

Final Critical Circumstances Determination

    We will make a final determination concerning critical 
circumstances for Australia when we make our final determination 
regarding sales at LTFV in this investigation, which will be no later 
than 75 days after this preliminary determination.

Suspension of Liquidation

    Because of our preliminary affirmative critical circumstances 
finding in this case, and in accordance with section 733(e) of the Act, 
we are directing the U.S. Customs Service (U.S. Customs) to suspend 
liquidation of all entries of cold-rolled steel from Australia that are 
entered, or withdrawn

[[Page 31195]]

from warehouse, for consumption on or after the date which is 90 days 
prior to the date of publication of this notice in the Federal 
Register. We are also instructing U.S. Customs to require a cash 
deposit or the posting of a bond equal to the dumping margin, as 
indicated in the chart below.
    These instructions suspending liquidation will remain in effect 
until further notice.

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
BHP........................................................        24.06
All Others.................................................        24.06
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Disclosure

    The Department will disclose calculations performed within five 
days of the date of publication of this notice to the parties of the 
proceedings in this investigation in accordance with 19 CFR 351.224(b).

ITC Notification

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

Public Comment

    For the investigation of cold-rolled steel from Australia, case 
briefs must be submitted no later than 50 days after the publication of 
this notice in the Federal Register. Rebuttal briefs must be filed 
within five calender days after the deadline for submission of case 
briefs. A list of authorities used, a table of contents, and an 
executive summary of issues should accompany any briefs submitted to 
the Department. Executive summaries should be limited to five pages 
total, including footnotes. Public versions of all comments and 
rebuttals should be provided to the Department and made available on 
diskette. Section 774 of the Act provides that the Department will hold 
a hearing to afford interested parties an opportunity to comment on 
arguments raised in case or rebuttal briefs, provided that such a 
hearing is requested by any interested party. If a request for a 
hearing is made in an investigation, the hearing will tentatively be 
held two days after the deadline for submission of the rebuttal briefs, 
at the U.S. Department of Commerce, 14th Street and Constitution 
Avenue, NW, Washington, DC 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 within 30 days of 
the publication of this notice. Requests should specify the number of 
participants and provide 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 
in the investigation of cold-rolled steel from Australia no later than 
75 days after the date of this preliminary determination.
    This determination is issued and published pursuant to sections 
733(f) and 777(i)(1) of the Act.

    Dated: April 26, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-11183 Filed 5-8-02; 8:45 am]
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