[Federal Register Volume 67, Number 90 (Thursday, May 9, 2002)]
[Notices]
[Pages 31248-31251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11195]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-469-812]


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

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

SUMMARY: We preliminarily determine that certain cold-rolled carbon 
steel flat products from Spain are being, or are likely to be, sold in 
the United States at less than fair value, as provided in section 
733(b) of the Tariff Act of 1930, as amended.
    Interested parties are invited to comment on this preliminary 
determination. We will make our final determination not later than 75 
days after the date of this preliminary determination.

EFFECTIVE DATE: May 9, 2002.

FOR FURTHER INFORMATION CONTACT: Irina Itkin at (202) 482-0656, Office 
of AD/CVD Enforcement, Office 2, Import Administration, 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 Spain 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 
(Oct. 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, 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 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 (Nov. 19, 2001).
    On November 16, 2001, the Department issued a complete antidumping 
questionnaire to Aceralia.\2\ See the memorandum from the Team to Louis 
Apple entitled ``Antidumping Duty Investigation of Cold-Rolled Carbon 
Steel Flat Products from Spain--Selection of Respondents,'' dated 
November 16, 2001 (First Respondent Selection Memo).
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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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    On December 13, 2001, Aceralia notified the Department that it did 
not make sales of subject merchandise during the Period of 
Investigation (POI). Rather, Aceralia stated that all of its U.S. sales 
during the POI consisted of either merchandise which was outside the 
scope of the investigation or a single trial sale of subject 
merchandise which was later cancelled. On December 19, 2002, we 
requested that Aceralia provide information on the physical

[[Page 31249]]

characteristics of the merchandise which it claimed was outside the 
scope.
    On December 19 and 20, 2002, the Department issued questionnaires 
to two additional companies believed to produce and/or export subject 
merchandise (i.e., Laminacion y Derivados, S.A. (Layde) and Troquenor, 
S.A. (Troquenor), respectively). See the memorandum from the Team to 
Louis Apple entitled ``Antidumping Duty Investigation of Cold-Rolled 
Carbon Steel Flat Products from Spain--Selection of Respondents' dated 
December 19, 2001 (Second Respondent Selection Memo). For further 
discussion, see the ``Selection of Respondents'' section of this 
notice, below.
    On December 21 and 27, 2001, we requested additional information 
from Aceralia regarding the physical characteristics of its out-of-
scope merchandise. Also on these dates, we informed Aceralia that, if 
we determined that Aceralia did in fact make sales of subject 
merchandise, its response to the remaining sections of the 
questionnaire would continue to be due in January 2002 with no further 
extensions possible.
    On January 11, 2002, Aceralia provided the information requested in 
December 2001. On January 22, 2002, we requested further clarification 
regarding the products exported by Aceralia during the POI. This 
information was received on January 29, 2002.
    Also on January 22, 2002, Layde informed the Department that it had 
no commercial sales of subject merchandise during the POI. On January 
23, 2002, we requested that Layde demonstrate that the subject 
merchandise exported to the United States was scrapped.
    On January 29, 2002, Troquenor informed the Department that all of 
its exports to the United States were of hot-rolled steel products. On 
January 31, 2002, we requested that Troquenor provide documentation 
showing that this was the case. Troquenor provided this information on 
February 22, 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 8227 (Feb. 22, 2002).
    On February 11, 2002, we requested that Aceralia provide 
documentation showing that its sale of in-scope merchandise during the 
POI was cancelled and the corresponding coils were returned by the 
customer. On February 19, 2002, Aceralia submitted its response to this 
request.
    Also on February 19, 2002, Layde informed the Department that it in 
fact sold a small quantity of subject merchandise to an unaffiliated 
customer during the POI. On February 22, 2002, we requested that Layde 
provide additional documentation regarding this transaction.
    On February 28, 2002, Layde informed the Department that it would 
not provide any additional information in this investigation.

Selection of Respondents

    Section 777A(c)(1) of the Act directs the Department to calculate 
individual dumping margins for each known exporter and producer of the 
subject merchandise. Where it is not practicable to examine all known 
producers/exporters of subject merchandise, section 777A(c)(2) of the 
Act permits the Department to investigate either: (1) A sample of 
exporters, producers, or types of products that is statistically valid 
based on the information available at the time of selection; or (2) 
exporters and producers accounting for the largest volume of the 
subject merchandise that can reasonably be examined. Using company-
specific export data for the period of investigation (POI), which we 
obtained from a variety of sources under the Harmonized Tariff Schedule 
of the United States (HTSUS) number that corresponds to the subject 
merchandise, we found that ten producers/exporters may have exported 
cold-rolled steel to the United States during the POI. According to 
data on the record, Aceralia represented the vast majority of the 
imports of subject merchandise during the POI. Due to limited 
resources, we determined that we could only investigate this one 
largest producer/exporter. Therefore, we designated Aceralia as the 
mandatory respondent and sent it the antidumping questionnaire. See the 
First Respondent Selection Memo.
    On December 13, 2001, Aceralia notified the Department that it did 
not make sales of subject merchandise during the POI. Rather, Aceralia 
stated that all of its U.S. sales during the POI consisted of either 
merchandise which was outside the scope of the investigation or a 
single trial sale of subject merchandise which was later cancelled.
    According to data on the record, Layde was the only other producer 
of subject merchandise identified in the petition, and Troquenor was 
the next largest producer of merchandise shown in the Customs Service 
data relied on previously to select Aceralia. Therefore, we designated 
Layde and Troquenor as additional mandatory respondents and sent them 
the antidumping questionnaire. See the Second Respondent Selection 
Memo.
    On January 29, 2002, Troquenor informed the Department that it did 
not export any subject merchandise to the United States during the POI. 
Because neither Aceralia nor Troquenor had POI sales of cold-rolled 
steel, we are not treating them as respondents in this investigation. 
Therefore, the Department will apply the ``all others'' rate to future 
shipments to the United States made by these companies. For further 
discussion, see the memorandum from the Team to Louis Apple entitled 
``Analysis of Merchandise Sold by Aceralia and Troquenor During the POI 
in the Antidumping Duty Investigation of Cold-Rolled Carbon Steel Flat 
Products from Spain,'' dated April 15, 2002.

Period of Investigation

    The 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, as 
well as a complete discussion of all scope exclusion requests submitted 
in the context of the on-going cold-rolled steel investigations, 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

[[Page 31250]]

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 December 19, 2001, the Department issued its questionnaire to 
Layde. On January 22, 2002, Layde informed the Department that it had 
no commercial sales of subject merchandise during the POI. 
Subsequently, the Department requested further information regarding 
Layde's claims. In response to this request, Layde stated that it had 
sales of subject merchandise to the United States in the amount of 
12.02 short tons. Upon the Department's request that it report these 
sales, Layde informed the Department that it no longer intended to 
participate in this investigation because the total quantity of its 
sales to the United States was negligible. See the February 28, 2002, 
letter from Layde. Because Layde failed to supply necessary 
information, we have applied FA to calculate the dumping margin, 
pursuant to section 776(a)(2)(B) of the Act.

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 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 (Oct. 16, 1997). The respondent was notified in 
the Department's questionnaires and in subsequent communications that 
failure to submit the requested information by the date specified might 
result in use of FA. As a general matter, it is reasonable for the 
Department to assume that Layde possessed the records necessary for 
this investigation and that by not supplying the information the 
Department requested, Layde failed to cooperate to the best of its 
ability. As Layde failed to cooperate to the best of its ability, we 
are applying an adverse inference pursuant to section 776(b) of the 
Act.
2. 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 ``[i]nformation 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 Spain Initiation 
Checklist on file in the Central Records Unit (Initiation Checklist), 
Room B-099, of the Main Commerce Department building, 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 values (AUV) for one ten-digit category of the 
HTSUS corresponding to in-scope imports from Spain during the POI. Our 
review of the EP calculation indicated that the information in the 
petition has probative value because certain information (e.g., import 
statistics) included in the margin calculation in the petition is from 
public sources concurrent, for the most part, with the POI. We compared 
the AUV data with U.S. customs data and found the price used by the 
petitioners to be accurate. As the AUV data is based on official 
statistics, no further corroboration is necessary. See Certain Cut-to-
Length Carbon Steel Plate from Mexico: Final Results of Antidumping 
Duty Administrative Review, 64 FR 76, 84 (Jan. 4, 1999) (Comment 13).

Normal Value

    The petitioners based normal value on a home market price quote 
obtained from a Spanish cold-rolled steel producer. The grade and size 
of this merchandise was comparable to the HTSUS classification used for 
purposes of EP. In addition, this price quote was contemporaneous with 
the AUV data used by the petitioners.
    The Department was provided with no useful information by the 
respondents 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 (e.g. the 
Department attempted to locate home market prices through publically 
available sources (see the memorandum to the File from the Team 
entitled ``Home Market Price Data From Publically-Available Sources in 
the Antidumping Duty Investigation of Cold-Rolled Carbon Steel Flat 
Products from Spain,'' dated April 12, 2002)).
    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

[[Page 31251]]

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 776(c) of 
the Act, we consider the margins in the petitions to be corroborated to 
the extent practicable for purposes of this preliminary determination.
    Accordingly, in selecting AFA with respect to Layde, the Department 
decided to apply the margin rate of 46.20 percent, which is the 
estimated dumping margin calculated by the petitioners in the amended 
petition of this investigation. See Initiation Notice.

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 we 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 one estimated dumping margin, 46.20 percent, there are 
no additional estimated margins available with which to create an ``all 
others'' rate based on an average. Therefore, we have selected the 
margin of 46.20 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).

Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, we are directing 
the Customs Service to suspend liquidation of all imports of subject 
merchandise from Spain 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 
amount by which the NV exceeds the EP, as 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/producer                       margin  (in
                                                               percent)
------------------------------------------------------------------------
Laminacion y Derivados, S.A. (Layde).......................        46.20
All Others.................................................        46.20
------------------------------------------------------------------------

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 Spain, case briefs 
must be submitted no later than 35 days after the publication of this 
notice in the Federal Register. Rebuttal briefs must be filed within 
five business 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 Spain 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. 02-11195 Filed 5-8-02; 8:45 am]
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