[Federal Register Volume 67, Number 169 (Friday, August 30, 2002)]
[Notices]
[Pages 55792-55798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-22250]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-832]


Notice of Final Determination of Sales at Less Than Fair Value 
and Final Negative Critical Circumstances: Carbon and Certain Alloy 
Steel Wire Rod from Brazil

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

EFFECTIVE DATE: August 30, 2002.

FOR FURTHER INFORMATION CONTACT: Christopher Smith or Victoria 
Schepker, at (202) 482-1442 or (202) 482-1756, respectively; Import 
Administration,

[[Page 55793]]

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 
(2001).

Final Determination

    We determine that carbon and certain alloy steel wire rod from 
Brazil is being sold, or is likely to be sold, in the United States at 
less than fair value (LTFV), as provided in section 735 of the Act. The 
estimated margins of sales at LTFV are shown in the Continuation of 
Suspension of Liquidation section of this notice.

Case History

    The preliminary determination in this investigation was issued on 
April 2, 2002. See Notice of Preliminary Determination of Sales at Less 
Than Fair Value and Postponement of Final Determination: Carbon and 
Certain Alloy Steel Wire Rod from Brazil, 67 FR 18165 (April 15, 2002) 
(Preliminary Determination). Since the publication of the preliminary 
determination, the following events have occurred:
    On April 16, 2002, Companhia Sider[uacute]rgica Belgo Mineira and 
its fully-owned subsidiary, Belgo-Mineira Participa[ccedil][atilde]o 
Ind[uacute]stria e Com[eacute]rcio S.A. (BMP), collectively Belgo 
Mineira submitted a letter to the Department stating its intent to 
withdraw from the proceeding and requesting the return of its 
proprietary information. On April 25, 2002, the Department confirmed 
that all of Belgo Mineira's information had been withdrawn from the 
record and that all copies had been destroyed. The Department also sent 
a letter to the petitioners requesting that they return Belgo Mineira's 
information under the terms of the Administrative Protective Order 
(APO). The petitioners \1\ objected to the return of Belgo Mineira's 
information in a letter dated April 26, 2002. Subsequently, the 
petitioners filed an appeal with the Court of International Trade 
(CIT), requesting that the Department not be allowed to require the 
petitioners to return Belgo Mineira's proprietary information. On May 
9, 2002, the CIT ordered that the petitioners return the information to 
the Department, and that the Department keep the information under 
seal. On June 4, 2002, we received a case brief from the petitioners; 
on June 11, 2002, we received a rebuttal brief from Belgo Mineira. On 
June 24, and June 21, 2002, respectively, the parties filed revised 
briefs at the request of the Department.
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    \1\ The petitioners in this investigation are Co-Steel Raritan, 
Inc., GS Industries, Inc., Keystone Consolidated Industries, Inc., 
and North Star Steel Texas, Inc.
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Scope Issues

    Since the Preliminary Determination a number of parties have filed 
requests asking the Department to exclude various products from the 
scope of the concurrent antidumping duty (Brazil, Canada, Germany, 
Indonesia, Mexico, Moldova, Trinidad and Tobago and Ukraine) and 
countervailing duty (Brazil, Canada, Germany, Trinidad and Tobago, and 
Turkey) investigations. On May 6, 2002, Ispat Hamburger Stahlwerke GmbH 
and Ispat Walzdraht Hochfeld GmbH (collectively, Ispat Germany) 
requested an exclusion for ``super clean valve spring wire.'' Two 
parties filed additional exclusion requests on June 14, 2002: Bluff 
City Steel asked that the Department exclude ``clean-steel precision 
bar,'' and Lincoln Electric Company sought the exclusion of its EW 2512 
grade of metal inert gas welding wire. On June 28, 2002, the 
petitioners filed objections to a range of scope exclusion requests 
including: (i) Bluff City Steel's request for clean precision bar; (ii) 
Lincoln Electric Company's request for EW 2512 grade wire rod; (iii) 
Ispat Germany's request for ``super clean valve spring wire;'' (iv) 
Tokusen USA's January 22, 2002 request for 1070 grade tire cord and 
tire bead quality wire rod (tire cord wire rod); and (v) various 
parties' request for 1090 grade tire cord wire rod.
    In addition, Moldova Steel Works requested the exclusion of various 
grades of tire cord wire rod on July 17, 2002. The Rubber Manufacturers 
Association (the RMA), Ispat Germany, Lincoln Electric and Bluff City 
filed rebuttals to the petitioners' June 28, 2002 submission on July 8, 
11, 17, and 29, 2002, respectively. The RMA filed additional comments 
on July 30, 2002.\2\
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    \2\ On August 9, 2002, Bekaert Corporation requested an 
exclusion for certain high chrome/high silicon steel wire rod from 
the scope of these investigations. This request was filed too late 
to be considered for the final determinations in these 
investigations.
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    The Department has analyzed these requests and the petitioners' 
objections and we find no modifications to the scope are warranted. See 
Memorandum from Richard Weible to Faryar Shirzad, ``Carbon and Certain 
Alloy Steel Wire Rod; Antidumping Duty (Brazil, Canada, Germany, 
Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine) and 
Countervailing Duty (Brazil, Canada, Germany, Trinidad and Tobago, and 
Turkey) Investigations: Requests for Scope Exclusion'' dated August 23, 
2002, which is on file in room B-099 of the main Commerce building.

Scope of Investigation

    The merchandise covered by this investigation is certain hot-rolled 
products of carbon steel and alloy steel, in coils, of approximately 
round cross section, 5.00 mm or more, but less than 19.00 mm, in solid 
cross-sectional diameter.
    Specifically excluded are steel products possessing the above-noted 
physical characteristics and meeting the Harmonized Tariff Schedule of 
the United States (HTSUS) definitions for (a) stainless steel; (b) tool 
steel; (c) high nickel steel; (d) ball bearing steel; and (e) concrete 
reinforcing bars and rods. Also excluded are (f) free machining steel 
products (i.e., products that contain by weight one or more of the 
following elements: 0.03 percent or more of lead, 0.05 percent or more 
of bismuth, 0.08 percent or more of sulfur, more than 0.04 percent of 
phosphorus, more than 0.05 percent of selenium, or more than 0.01 
percent of tellurium).
    Also excluded from the scope are 1080 grade tire cord quality wire 
rod and 1080 grade tire bead quality wire rod. This grade 1080 tire 
cord quality rod is defined as: (i) Grade 1080 tire cord quality wire 
rod measuring 5.0 mm or more but not more than 6.0 mm in cross-
sectional diameter; (ii) with an average partial decarburization of no 
more than 70 microns in depth (maximum individual 200 microns); (iii) 
having no inclusions greater than 20 microns; (iv) having a carbon 
segregation per heat average of 3.0 or better using European Method NFA 
04-114; (v) having a surface quality with no surface defects of a 
length greater than 0.15 mm; (vi) capable of being drawn to a diameter 
of 0.30 mm or less with 3 or fewer breaks per ton, and (vii) containing 
by weight the following elements in the proportions shown: (1) 0.78 
percent or more of carbon, (2) less than 0.01 percent of aluminum, (3) 
0.040 percent or less, in the aggregate, of phosphorus and sulfur, (4) 
0.006 percent or less of nitrogen, and (5) not more than 0.15 percent, 
in the aggregate, of copper, nickel and chromium.
    This grade 1080 tire bead quality rod is defined as: (i) Grade 1080 
tire bead quality wire rod measuring 5.5 mm or more but not more than 
7.0 mm in

[[Page 55794]]

cross-sectional diameter; (ii) with an average partial decarburization 
of no more than 70 microns in depth (maximum individual 200 microns); 
(iii) having no inclusions greater than 20 microns; (iv) having a 
carbon segregation per heat average of 3.0 or better using European 
Method NFA 04-114; (v) having a surface quality with no surface defects 
of a length greater than 0.2 mm; (vi) capable of being drawn to a 
diameter of 0.78 mm or larger with 0.5 or fewer breaks per ton; and 
(vii) containing by weight the following elements in the proportions 
shown: (1) 0.78 percent or more of carbon, (2) less than 0.01 percent 
of soluble aluminum, (3) 0.040 percent or less, in the aggregate, of 
phosphorus and sulfur, (4) 0.008 percent or less of nitrogen, and (5) 
either not more than 0.15 percent, in the aggregate, of copper, nickel 
and chromium (if chromium is not specified), or not more than 0.10 
percent in the aggregate of copper and nickel and a chromium content of 
0.24 to 0.30 percent (if chromium is specified).
    The designation of the products as ``tire cord quality'' or ``tire 
bead quality'' indicates the acceptability of the product for use in 
the production of tire cord, tire bead, or wire for use in other rubber 
reinforcement applications such as hose wire. These quality 
designations are presumed to indicate that these products are being 
used in tire cord, tire bead, and other rubber reinforcement 
applications, and such merchandise intended for the tire cord, tire 
bead, or other rubber reinforcement applications is not included in the 
scope. However, should petitioners or other interested parties provide 
a reasonable basis to believe or suspect that there exists a pattern of 
importation of such products for other than those applications, end-use 
certification for the importation of such products may be required. 
Under such circumstances, only the importers of record would normally 
be required to certify the end use of the imported merchandise.
    All products meeting the physical description of subject 
merchandise that are not specifically excluded are included in this 
scope.
    The products under investigation are currently classifiable under 
subheadings 7213.91.3010, 7213.91.3090, 7213.91.4510, 7213.91.4590, 
7213.91.6010, 7213.91.6090, 7213.99.0031, 7213.99.0038, 7213.99.0090, 
7227.20.0010, 7227.20.0020, 7227.20.0090, 7227.20.0095, 7227.90.6051, 
7227.90.6053, 7227.90.6058, and 7227.90.6059 of the HTSUS. Although the 
HTSUS subheadings are provided for convenience and customs purposes, 
the written description of the scope of this proceeding is dispositive.

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., August 2001).

Analysis of Comments Received

    Given that there was only one issue raised in the parties' briefs, 
regarding the use of adverse facts available, we have addressed the 
issue here, and not in a separate Decision Memorandum.

Use of Facts Available

    As stated above, Belgo Mineira withdrew from this proceeding and 
requested the return of all proprietary information submitted. 
Consequently, for the final determination, the Department has applied 
adverse facts available (AFA) by using the margin derived from the 
petition.

1. Application of Facts Available (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 16, 2002, Belgo Mineira 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. Belgo Mineira 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 Belgo 
Mineira dated November 9, 2001; December 27, 2001; and January 18, 
2002.
    As described above, Belgo Mineira withdrew its response to the 
Department's questionnaire. Because Belgo Mineira 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 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 (October 16, 1997); Notice of Final Determination 
of Sales at Less than Fair Value: Certain Cold-Rolled Carbon Steel Flat 
Products from Sweden, 67 FR 47522, 47523 (July 19, 2002).
Comment: Application of AFA
    The petitioners argue that Belgo Mineira's decision to cease 
participating in the investigation compels the Department to make an 
adverse inference when determining the final dumping margin. Further, 
the petitioners contend that, since Belgo Mineira should not be 
rewarded for its decision to withdraw its information from the record 
of the proceeding, the Department should place Belgo Mineira's 
information back on the record and use the highest calculated rate as 
its cash deposit rate.
    Under section 776(b)(4) of the Act the Department may rely on ``any 
other information placed on the record'' for the purposes of deriving a 
facts available rate. The petitioners maintain that it is appropriate, 
under this provision, to use the information that Belgo Mineira 
submitted, which the Department still retains, albeit under seal. The 
petitioners point out that the information submitted by Belgo Mineira 
is ``primary'' information, the accuracy of which has been certified by 
Belgo Mineira and its counsel. Therefore, the petitioners argue, the 
Department is not obliged to corroborate this information. Further, the 
petitioners contend that the Department has relied on unverified, 
company-specific information in selecting a margin incorporating an 
adverse inference for respondents which withdrew from the 
investigation. See,

[[Page 55795]]

e.g., Notice of Final Determination of Sales at Less Than Fair Value: 
Live Cattle from Canada, 64 FR 56739 (October 21, 1999) (Live Cattle 
from Canada).
    While Belgo Mineira's information is currently under seal, the 
petitioners argue that the decision by the CIT in Co-Steel Raritan, et 
al. v. United States, Court No. 02-00313 (May 9, 2002) (Co-Steel 
Raritan) contemplates the use of Belgo Mineira's information in 
selecting a final deposit rate that incorporates an adverse inference. 
Specifically, the petitioners argue that the CIT's order provides that 
unless the Department assigns to Belgo Mineira a deposit rate that is 
no less favorable to the petitioners than the result it could have 
reached using Belgo Mineira's information, the Department will be 
required to remove the information from under seal and return it to the 
petitioners counsel to provide them with an opportunity to submit 
objections.
    Further, the petitioners argue that in Live Cattle from Canada, the 
Department found that ``there is no statutory provision dealing with 
the withdrawal of business proprietary information once it has been 
submitted {and{time}  the courts have recognized the inherent power of 
an administrative authority to protect the integrity of its 
proceedings.'' See Live Cattle from Canada at 56743.
    Therefore, according to the petitioners, there is nothing in the 
statute or judicial precedent to preclude the Department from placing 
Belgo Mineira's information, which is currently under seal, back on the 
record of the proceeding. The petitioners maintain that, by withdrawing 
its information, Belgo Mineira is attempting to manipulate the 
proceeding and receive a lower adverse facts available rate than it 
would have received had it left its information on the record. 
Therefore, the petitioners ask that Belgo Mineira's information be put 
back on the record and that Belgo Mineira be given the highest margin 
calculated from that information.
    Belgo Mineira states that its decision to cease participating in 
the case was a business decision based on a cost/benefit analysis, 
which lead to the conclusion that the cost of participating in the 
investigation outweighed the possible benefits of doing so, given the 
Department's decision to exclude a significant portion of Belgo 
Mineira's exports from the scope of the proceeding. Belgo Mineira 
acknowledges that when it withdrew, it was with the knowledge that the 
Department may select an adverse facts available rate in the final 
determination, which was higher than its calculated rate.
    Further, Belgo Mineira argues that, should the Department remove 
its information from under seal, it would be in violation of the court 
order in Co-Steel Raritan, which directed the Department to place the 
information under seal and then proceed with the investigation. Belgo 
Mineira maintains that the CIT contemplated removing the documents from 
under seal only if there is a subsequent action by the petitioners 
before the CIT, and the CIT directs the Department to unseal the 
information.
    In addition, Belgo Mineira points out the Department has well 
established practices for assigning a facts available rate to mandatory 
respondents who do not participate fully in the proceeding. See, e.g., 
Notice of Final Determination of Sales at Less Than Fair Value: 
Emulsion Styrene-Butadiene Rubber From Brazil, 64 FR 14863 (March 29, 
1999) (ESBR from Brazil). According to Belgo Mineira, whether it opted 
not to participate from the beginning, or elected to withdraw in the 
middle, should not be relevant to the Department's final determination. 
Therefore, Belgo Mineira believes that the Department should follow its 
usual policy in assigning a facts available rate and should not be 
influenced by the petitioners speculation on Belgo Mineira's motives 
for withdrawing from the proceeding.
    Finally, Belgo Mineira suggests that, if the Department does remove 
Belgo Mineira's information from under seal, and decides that the 
information is sufficiently reliable to use for the purposes of 
establishing a facts available rate, the Department should use all of 
that information, not just the highest calculated margin to establish 
the cash-deposit rate.
Department's Position
    We agree with the petitioners that Belgo Mineira's decision to 
cease participating in the proceeding warrants the application of 
adverse facts available under section 776(b) of the Act. By ceasing to 
participate and withdrawing its information, Belgo Mineira failed to 
cooperate to the best of its ability. However, we disagree that Belgo 
Mineira's information should be removed from under seal and used to 
establish the adverse facts available rate.
    As a general matter, it is reasonable for the Department to assume 
that Belgo Mineira 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, Belgo Mineira 
failed to cooperate to the best of its ability. As Belgo Mineira 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 
94.73 percent, the rate derived from the petition. See Initiation of 
Antidumping Duty Investigations: Carbon and Certain Alloy Steel Wire 
Rod from Brazil, Canada, Egypt, Germany, Indonesia, Mexico, Moldova, 
South Africa, Trinidad and Tobago, Ukraine, and Venezuela, 66 FR 50164 
(October 2, 2001) (Initiation Notice).
    The Department has allowed withdrawing parties, who make a request, 
to remove their business proprietary information from the 
administrative record of an ongoing proceeding.\3\ Thus, the 
Department's decision to remove Belgo Mineira's

[[Page 55796]]

business proprietary documents from the record in this administrative 
review was consistent with the Department's practice. We find the 
petitioners' reliance on Live Cattle from Canada to be misplaced. That 
case involved a unique circumstance in that the Department found that 
the ``All Others'' rate, which would have been applied to the majority 
of exports of the subject merchandise, would have been distorted by the 
withdrawal of information by one of the mandatory respondents. In Live 
Cattle from Canada, the Department did not state that it was changing 
its practice, but that the peculiarities of that case meant that the 
Department should not follow its normal practice. Live Cattle from 
Canada, 64 FR at 56743-44. The Department's decision in Live Cattle 
from Canada is limited to the unique set of facts underlying that 
determination and does not establish ``precedent'' for the agency. No 
such circumstance exists in this case. The only producer affected by 
the withdrawal of Belgo Mineira's information is Belgo Mineira itself.
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    \3\ See Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Carbon Steel Flat Products from Sweden, 
67 FR 47522, 47523 (July 19, 2002); Notice of Final Determination of 
Sales at Less Than Fair Value: Certain Cold-Rolled Carbon Steel Flat 
Products From Australia, 67 FR 47509, 47510 (July 19, 2002); 
Stainless Steel Plate in Coils from Belgium: Final Results of 
Antidumping Duty Administrative Review, 66 FR 56272, 56273 (Nov. 7, 
2001); Preliminary Determination of Sales at Less Than Fair Value: 
Honey From Argentina, 66 FR 24108, 24110-11 (May 11, 2001); Notice 
of Final Determination of Sales at Less Than Fair Value: Circular 
Seamless Stainless Steel Hollow Products from Japan, 65 FR 42985, 
42986 (July 12, 2000); Carbon Steel Wire Rope from Mexico: 
Preliminary Results of Antidumping Duty Administrative Review and 
New Shipper Review, and Determination Not To Revoke the Antidumping 
Order in Part, 65 FR 18283, 18284 (April 7, 2000). See also Notice 
of Final Determination of Sales at Less Than Fair Value: 
Silicomanganese From Brazil, 59 FR 55432, 55433 Comment 1 (Nov. 9, 
1994); Final Determination of Sales At Less Than Fair Value: Certain 
Cold-Rolled Carbon Steel Flat Products and Certain Cut-to-Length 
Carbon Steel Plate From Italy, 58 FR 37152, 37152-153 (July 9, 
1993); Notice of Final Determination of Sales at Less Than Fair 
Value: Certain Cold-Rolled Carbon Steel Flat Products From 
Argentina, 58 FR 37062 (July 9, 1993); Notice of Preliminary 
Determination of Sales at Less than Fair Value: Certain Hot-Rolled 
Carbon Steel Flat Products, Certain Cold-Rolled Carbon Steel Flat 
Products, and Certain Corrosion-Resistant Carbon Steel Flat Products 
From Japan, 58 FR 7103, 7104, 7105 (Feb. 4, 1993); Final 
Determination of Sales at Less Than Fair Value: Certain Hot-Rolled 
Lead and Bismuth Carbon Steel Products From France, 58 FR 6203, 
6204-6205 (January 27, 1993); Final Determination of Sales at Less 
Than Fair Value: Personal Word Processors from Japan, 56 FR 31101 
(July 9, 1991)(Rate was modified using the petition and public data, 
pursuant to Smith Corona Corp. v. United States, 802 F. Supp. 467, 
468 (Ct. Int'l Trade 1992)); Preliminary Determination of Sales at 
Less Than Fair Value: Certain Small Business Telephone Systems and 
Subassemblies Thereof From Japan, 54 FR 31978 (Aug. 3, 1989); Final 
Affirmative Countervailing Duty Determination: Industrial Belts and 
Components and Parts Thereof, Whether Cured or Uncured, From Israel, 
54 FR 15509 (April 18, 1989)(Both the government of Israel and the 
foreign producer withdrew their responses).
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    Further, with regard to Belgo Mineira's information, we disagree 
with the petitioners' interpretation of the CIT's order. The CIT 
ordered that the Department was to ``safekeep this information under 
seal pending Commerce's issuance of the final determination.'' See Co-
Steel Raritan at 2. The Court further ordered that the petitioners can 
enter their objections ``for Commerce's consideration in accordance 
with pertinent statutory and regulatory provisions;'' moreover, for 
petitioners to obtain access to the proprietary information, they 
should bring a separate action before the CIT. Co-Steel Raritan at 13-
14. The Department maintains the information under seal, because the 
Department interprets section 777(b)(1)(A) of the Act to mean that once 
a respondent has withdrawn its consent for Administrative Protective 
Order (APO) parties and the government to review its business 
proprietary information, then the Department must remove it from the 
record and cannot disclose the information. See section 777(b)(1)(A) of 
the Act (``information submitted to the administering authority* * * 
which is designated as proprietary by the person submitting the 
information shall not be disclosed to any person without the consent of 
the person submitting the information* * *.''). The Department's 
interpretation is supported by the fact that participation in the 
administrative process by foreign governments and its commercial 
citizens is voluntary, and the Department lacks subpoena powers. See 
Rhone Poulenc Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 
1990). Therefore, to remain in compliance with the CIT order and the 
Act, the information in question may not be removed from under seal 
until there is a separate court order after the final determination. 
Furthermore, the Department is required to apply a rate that is 
supported by information on the record. Smith Corona Corp. v. United 
States, 796 F. Supp. 1532, 1537 (CIT 1992)(Smith Corona I); Smith 
Corona Corp. v. United States, 802 F. Supp. 467, 468 (CIT 1992)(Smith 
Corona II). A rate derived from Belgo Mineira's information cannot be 
supported because that information is no longer on the administrative 
record.
    The Department's practice when selecting an adverse rate from among 
the possible sources of information is to ensure that the margin is 
sufficiently adverse ``as to effectuate the purpose of the facts 
available role to induce respondents to provide the Department with 
complete and accurate information in a timely manner.'' See Static 
Random Access Memory Semiconductors from Taiwan; Final Determination of 
Sales at Less than Fair Value, 63 FR 8909, 8932 (Feb. 23, 1998). The 
Department applies adverse facts available ``to ensure that the party 
does not obtain a more favorable result by failing to cooperate than if 
it had cooperated fully.'' Uruguay Round Agreements Act, Statement of 
Administrative Action, H.R. Doc. No. 103-316, vol. 1, at 870 
(1994)(SAA). The Department also considers the extent to which a party 
may benefit from its own lack of cooperation in selecting a rate. See 
Roller Chain, Other than Bicycle, from Japan; Notice of Final Results 
and Partial Recision of Antidumping Duty Administrative Review, 62 FR 
60472, 60477 (Nov. 10, 1997), SAA at 870. In this case, the highest 
margin derived from the petition is 94.73 percent, higher than Belgo 
Mineira's preliminary calculated margin of 65.76 percent.
    We believe that the highest margin derived from the petition is 
sufficiently adverse, and cannot be considered beneficial to Belgo 
Mineira. Consistent with long-standing Department practice, we have 
assigned this margin to Belgo Mineira in the final determination. See, 
e.g., Notice of Final Determination of Sales at Less Than Fair Value: 
Steel Wire Rod from Venezuela, 63 FR 8946, 8948 (February 23, 1998); 
see also, Final Determination of Sales at Less Than Fair Value: Vector 
Supercomputers From Japan, 62 FR 45623 (August 28, 1997).
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 the Initiation 
Checklist, dated September 24, 2002, (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 margins 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 margins in the petition were based. 
After making adjustments to the elements of EP and NV (see Initiation 
Checklist), we determined that the evidence supporting the calculation 
in the petition was adequate and the petition margin is appropriate for 
use as AFA in this determination.

[[Page 55797]]

All Others Rate

    Section 735(c)(5)(B) of the Act provides that, where the estimated 
weighted-averaged dumping margins established for all exporters and 
producers individually investigated are zero or de minimis or are 
determined entirely under section 776 of the Act, the Department may 
use any reasonable method to establish the estimated all-others rate 
for exporters and producers not individually investigated. Our recent 
practice under these circumstances has been to assign, as the ``all 
others'' rate, the simple average of the margins in the petition. See 
Notice of Final Determinations of Sales at Less Than Fair Value: 
Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel Products From 
Argentina, Japan and Thailand, 65 FR 5520, 5527-28 (February 4, 2000); 
see also Notice of Final Determination of Sales at Less Than Fair 
Value: Stainless Steel Plate in Coil from Canada (Stainless Steel Plate 
from Canada), 64 FR 15457 (March 31, 1999); and Notice of Final 
Determination of Sales at Less Than Fair Value: Stainless Steel Plate 
in Coil from Italy (Stainless Steel Plate from Italy), 64 FR 15458, 
15459 (March 31, 1999). Consistent with our practice, we have assigned 
to all other manufacturers/exporters the simple average of the margins 
in the petition, which is 74.35 percent.

Critical Circumstances

    Section 735(a)(3) of the Act provides that the Department will 
determine that critical circumstances exist if there is a reasonable 
basis to believe or suspect that: (A)(i) There is a history of dumping 
and material injury by reason of dumped imports in the United States or 
elsewhere of the subject merchandise, or (ii) the person by whom, or 
for whose account, the merchandise was imported knew or should have 
known that the exporter was selling the subject merchandise at less 
than its fair value and that there was likely to be material injury by 
reason of such sales, and (B) there have been massive imports of the 
subject merchandise over a relatively short period.
    In the preliminary determination, the Department found that 
critical circumstances do not exist because imports had not been 
massive over a ``relatively short period of time,'' pursuant to 
733(e)(1)(B) of the Act. See Preliminary Determination at 18171; see 
also, Antidumping Duty Investigation of Carbon and Certain Alloy Steel 
Wire Rod from Brazil--Preliminary Negative Determination of Critical 
Circumstances Memorandum from Bernard T. Carreau to Faryar Shirzad, 
April 2, 2002 (Critical Circumstances Memorandum) on file in the CRU.
    In that decision, we used Belgo Mineira's company-specific 
information to arrive at a negative critical circumstances preliminary 
determination with regard to that company, based on our determination 
that imports had not been massive over a relatively short period. 
Because Belgo Mineira withdrew its information, the company-specific 
shipment data were no longer on the record for this final 
determination. However, we were aware that the Department had requested 
company-specific shipment data from Belgo and the other major exporter/
producer, Gerdau S.A. (Gerdau), in the companion countervailing duty 
investigation.\4\ On August 20, 2002, we requested that Belgo Mineira 
and Gerdau submit their shipment data for our critical circumstances 
determination in this case. As in the Preliminary Determination, our 
analysis of Belgo Mineira's shipment data indicates that imports have 
decreased during the comparison period; therefore, we find that the 
criterion under section 733(e)(1)(B) of the Act has not been met, i.e., 
there have not been massive imports of steel wire rod from Belgo 
Mineira over a relatively short time.\5\ Because there have not been 
massive imports in this case, we have determined that it is unnecessary 
to address the other prong of the critical circumstances test. For this 
reason, we determine that critical circumstances do not exist for 
imports of steel wire rod produced by Belgo Mineira.
---------------------------------------------------------------------------

    \4\ We note that these data were verified in the companion 
countervailing duty investigation.
    \5\ See Carbon and Certain Alloy Steel Wire Rod from Brazil: 
Analysis of Shipment Data for Critical Circumstances Determination 
Memorandum from Vicki Schepker to Constance Handley, August 23, 
2002, on file in the CRU.
---------------------------------------------------------------------------

    Regarding the ``All Others'' category, although the mandatory 
respondent did not have massive imports, we also considered the 
combined shipment data of the two largest Brazilian exporters of wire 
rod. Based on our respondent selection analysis, we determined that 
there were two significant exporters of subject merchandise during the 
POI, Belgo Mineira and Gerdau S.A (Gerdau). See Respondent Selection 
Memorandum to Gary Taverman from Vicki Schepker, dated November 9, 
2001. Information used for the respondent selection indicates that 
merchandise produced by Gerdau constitutes the preponderance of 
merchandise in the ``All Others'' category. Therefore, we are using the 
combined experience of Belgo Mineira and Gerdau for our critical 
circumstances determination for the ``All Others'' category of 
producers. Our review of the combined shipment data indicates that 
imports have decreased during the comparison period. Accordingly, 
pursuant to section 733(e) of the Act and section 351.206(h) of the 
Department's regulations, we preliminarily find that critical 
circumstances do not exist for imports of steel wire rod produced by 
the ``All Others'' category.

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, we are 
directing the Customs Service to continue to suspend liquidation of all 
entries of steel wire rod exported from Brazil, that are entered, or 
withdrawn from warehouse, for consumption on or after the date of the 
preliminary determination. The Customs Service shall continue to 
require a cash deposit or the posting of a bond based on the estimated 
weighted-average dumping margins shown below. We will adjust the 
deposit requirements to account for any export subsidies found in the 
companion countervailing duty investigation. The suspension of 
liquidation instructions will remain in effect until further notice.
    We determine that the following weighted-average dumping margins 
exist for Brazil:

------------------------------------------------------------------------
                                                                Margin
                    Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
Companhia Sider[uacute]rgica Belgo Mineira and Belgo-Mineira       94.73
 Participa[ccedil][atilde]o Ind[uacute]stria e
 Com[eacute]rcio S.A. (BMP).................................
All Others..................................................       74.45
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 735(d) of the Act, we have notified the 
International Trade Commission (ITC) of our determination. The ITC will 
determine, within 45 days, whether imports of subject merchandise from 
Brazil are causing material injury, or threaten material injury, to an 
industry in the United States. If the ITC determines that material 
injury or threat of injury does not exist, this proceeding will be 
terminated and all securities posted will be refunded or canceled. If 
the ITC determines that such injury does exist, the Department will 
issue an antidumping order directing Customs Service officials to 
assess antidumping duties on all imports of the subject merchandise 
entered, or withdrawn from warehouse for consumption on or

[[Page 55798]]

after the effective date of the suspension of liquidation.
    This notice also serves as a reminder to parties subject to APO of 
their responsibility concerning the disposition of proprietary 
information disclosed under APO in accordance with 19 CFR 351.305. 
Timely notification of return/destruction of APO materials or 
conversion to judicial protective order is hereby requested. Failure to 
comply with the regulations and the terms of an APO is a sanctionable 
violation.
    This determination is issued and published in accordance with 
sections 735(d) and 777(i)(1) of the Act.

    Dated: August 23, 2002.
Faryar Shizad,
Assistant Secretary for Import Administration.
[FR Doc. 02-22250 Filed 8-29-02; 8:45 am]
BILLING CODE 3510-DS-P