[Federal Register Volume 67, Number 192 (Thursday, October 3, 2002)]
[Notices]
[Pages 62100-62102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-24784]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-614-803]


Notice of Final Determination of Sales at Less Than Fair Value: 
Certain Cold-Rolled Carbon Steel Flat Products from New Zealand

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

EFFECTIVE DATE: October 3, 2002.

FOR FURTHER INFORMATION CONTACT: Salim Bhabhrawala at (202) 482-1784, 
or Tracy Levstik at (202) 482-2815, Office of AD/CVD Enforcement V, 
Group II, 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 the Department of Commerce (Department) 
regulations are to the regulations at 19 CFR part 351 (April 2001).

Final Determination

    We determine that certain cold-rolled carbon steel flat products 
(cold-rolled steel) from New Zealand are being, or are likely to be, 
sold in the United States at less than fair value (LFTV), 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

    On May 9, 2002, the Department published its preliminary 
determination in the above-captioned antidumping duty investigation. 
See Notice of Preliminary Determination of Sales at Less Than Fair 
Value and Postponement of Final Determination: Certain Cold-Rolled 
Carbon Steel Flat Products From New Zealand, 67 FR 31231 (May 9, 2002) 
(Preliminary Determination). Since the preliminary determination, the 
following events have occurred. In July 2002, we gave interested 
parties an opportunity to comment on the preliminary determination. 
There were no case or rebuttal briefs submitted. A public hearing was 
not requested.\1\
    With respect to scope, in the preliminary LTFV determinations in 
this and the companion cold-rolled steel investigations, the Department 
preliminarily excluded certain porcelain enameling steel from the scope 
of these investigations. See Scope Appendix to the Notice of 
Preliminary Determination of Sales at Less Than Fair Value: Certain 
Cold-Rolled Carbon Steel Flat Products from Argentina, 67 FR 31181 (May 
9, 2002) (Scope Appendix--Argentina Preliminary LTFV Determination). On 
June 13, 2002, we issued a preliminary decision on the remaining 75 
scope exclusion requests filed in a number of the on-going cold-rolled 
steel investigations (see the June 13, 2002, memorandum regarding 
``Preliminary Scope Rulings in the Antidumping Investigations on 
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, and in the Countervailing Duty Investigations of Certain 
Cold-Rolled Carbon Steel Flat Products from Argentina, Brazil, France, 
and Korea'' (Preliminary Scope Rulings), which is on file in the 
Department's Central Records Unit (CRU), room B-099 of the main 
Department building. We gave parties until June 20, 2002, to comment on 
the preliminary scope rulings, and until June 27, 2002, to submit 
rebuttal comments. We received comments and/or rebuttal comments from 
petitioners \2\ and respondents from various countries subject to these 
investigations of cold-rolled steel. In addition, on June 13, 2002, 
North American Metals Company (an interested party in the Japanese 
proceeding) filed a request that the Department issue a ``correction'' 
for an already excluded product. On July 8, 2002, the petitioners 
objected to this request.
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    \1\ Normally, when the Department issues a final determination, 
the Federal Register notice is accompanied by a separate Issues and 
Decision Memorandum. Since no briefs were filed in this case, a 
separate memorandum is not required.
    \2\ The petitioners in this investigation are Bethlehem Steel 
Corporation, LTV Steel Company, Inc., Nucor Corporation, Steel 
Dynamics, Inc., United States Steel Corporation, WCI Steel, Inc., 
and Weirton Steel Corporation (collectively, the petitioners).
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    At the request of multiple respondents, the Department held a 
public hearing with respect to the Preliminary Scope Rulings on July 1, 
2002. The Department's final decisions on the scope exclusion requests 
are addressed in the Scope of Investigation section below.

Scope of Investigation

    For purposes of this investigation, the products covered are 
certain cold-rolled (cold-reduced) flat-rolled carbon-quality steel 
products. A full description of the scope of this investigation is 
contained in the Scope Appendix attached to the Notice of Correction to 
Final Determination of Sales at Less Than Fair Value: Certain Cold-
Rolled Carbon Steel Flat Products from Australia, 67 FR 52934 (Aug. 14, 
2002). For a complete discussion of the comments received on the 
Preliminary Scope Rulings, see the memorandum regarding ``Issues and 
Decision Memorandum for the Final Scope Rulings in the Antidumping Duty 
Investigations on 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, and in the Countervailing Duty Investigations of 
Certain Cold-Rolled Carbon Steel Flat Products from Argentina, Brazil, 
France, and Korea,'' dated July 10, 2002, which is on file in CRU.

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).

Analysis of Comments Received

    As noted above, we received no comments from interested parties in 
response to our preliminary determination.

[[Page 62101]]

Facts Available

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 May, 16 2002, the sole respondent, BHP New Zealand Steel Limited 
(NZS) 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. NZS was notified by the Department in all 
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 NZS dated November 19, 2001; January 9, 2002; January 23, 
2002; February 15, 2002; April 29, 2002; and April 30, 2002. Because 
NZS withheld information requested by the Department essential to the 
calculation of dumping margins, thereby significantly impeding the 
conduct of this proceeding, we have applied FA to calculate the dumping 
margin, pursuant to sections 776(a)(2)(A) and (C) of the Act.
2. Selection of Adverse Facts Available (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). As a general matter, it is 
reasonable for the Department to assume that NZS 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, NZS failed to cooperate to the best of its ability. As NZS 
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 assigned a margin of 21.72 percent, the sole rate derived from the 
petition. See Initiation Notice at 54205.
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 New Zealand 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 
New Zealand 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 the 
unadjusted AUV 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 7684 
(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 the secondary information in question.'' See 19 CFR 
351.308(d). 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

[[Page 62102]]

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 final 
determination. Accordingly, in selecting AFA with respect to NZS, the 
Department applied the petition rate of 21.72 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. As noted above, there was only one estimated margin derived 
from the petition. Therefore, we applied that margin of 21.72 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).

Continuation of Suspension of Liquidation

    Pursuant to section 735(c)(1)(B) of the Act, we are instructing the 
U.S. Customs Service (Customs) to continue to suspend liquidation of 
all imports of cold-rolled steel from New Zealand that are entered, or 
withdrawn from warehouse, for consumption on or after May 9, 2002 (the 
date of publication of the Preliminary Determination in the Federal 
Register). Customs shall continue to require a cash deposit or the 
posting of a bond equal to the estimated amount by which the normal 
value exceeds the U.S. price as shown below. The suspension of 
liquidation instructions will remain in effect until further notice.
    We determine that the following percentage margins exist for the 
period July 1, 2000, through June 30, 2001:

------------------------------------------------------------------------
                                                                Margin
                   Manufacturer/exporter                      (percent)
------------------------------------------------------------------------
BHP New Zealand Steel Limited (NZS)........................        21.72
All Others.................................................        21.72
------------------------------------------------------------------------

ITC Notification

    In accordance with section 735(d) of the Act, we have notified the 
ITC of our determination. As our final determination is affirmative, 
the ITC will determine, within 45 days, whether these imports are 
causing material injury, or threat of material injury, to an industry 
in the United States. If the ITC determines that material injury, or 
threat of injury does not exist, the proceeding will be terminated and 
all securities posted will be refunded or cancelled. If the ITC 
determines that such injury does exist, the Department will issue an 
antidumping duty order directing Customs officials to assess 
antidumping duties on all imports of the subject merchandise entered, 
or withdrawn from warehouse, for consumption on or after the effective 
date of the suspension of liquidation.

Notification Regarding Administrative Protective Order (APO)

    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: September 23, 2002.
Faryar Shirzad,
Assistant Secretary for Import Administration.
[FR Doc. 02-24784 Filed 10-2-02; 8:45 am]
BILLING CODE 3510-DS-P