[Federal Register Volume 69, Number 110 (Tuesday, June 8, 2004)]
[Notices]
[Pages 31961-31965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12941]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-580-844]


Steel Concrete Reinforcing Bar From The Republic of Korea: Notice 
of Preliminary Results and Preliminary Rescission, in Part, of 
Antidumping Duty Administrative Review

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

ACTION: Notice of preliminary results and preliminary rescission, in 
part, of antidumping duty administrative review.

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DATES: Effective Date: June 8, 2004.

SUMMARY: In response to a request from the petitioner,\1\ the 
Department of Commerce (``the Department'') is conducting an 
administrative review of the antidumping duty order on steel concrete 
reinforcing bar (``rebar'') from the Republic of Korea (``Korea''). The 
period of review (``POR'') is September 1, 2002, through August 31, 
2003. This review covers six manufacturers/exporters of subject 
merchandise.
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    \1\ The petitioner in this proceeding is the Rebar Trade Action 
Coalition and its individual members: Gerdau AmeriSteel, CMC Steel 
Group, Nucor Corporation, and TAMCO.
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    As a result of our review, we preliminarily determine that four

[[Page 31962]]

respondents had no sales or shipments of subject merchandise to the 
United States during the POR. Therefore, we are preliminarily 
rescinding the review with respect to these respondents. The remaining 
two respondents, Dongil Industries Co. Ltd. (``Dongil'') and Hanbo Iron 
& Steel Co., Ltd. (``Hanbo''), failed to respond to our questionnaire. 
As a result, we are basing our preliminary results for Dongil and Hanbo 
on total adverse facts available (``AFA''). If these preliminary 
results are adopted in our final results of review, we will instruct 
U.S. Customs and Border Protection (``CBP'') to assess antidumping 
duties on all appropriate entries. We invite parties to comment on 
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these preliminary results.

FOR FURTHER INFORMATION CONTACT: Richard Johns or Mark Manning, 
Antidumping and Countervailing Duty Enforcement Group II, Office 4, 
Import Administration, International Trade Administration, U.S. 
Department of Commerce, 14th Street and Constitution Avenue, NW., 
Washington, DC 20230; telephone (202) 482-2305 and (202) 482-5253, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On September 7, 2001, the Department published an antidumping duty 
order on rebar from Korea. See Antidumping Duty Orders: Steel Concrete 
Reinforcing Bars From Belarus, Indonesia, Latvia, Moldova, People's 
Republic of China, Poland, Republic of Korea and Ukraine, 66 FR 46777 
(September 7, 2001). On September 2, 2003, the Department published a 
notice of opportunity to request the second administrative review of 
this order. See Antidumping or Countervailing Duty Order, Finding, or 
Suspended Investigation; Opportunity to Request Administrative Review, 
68 FR 52181 (September 2, 2003). On September 30, 2003, in accordance 
with 19 CFR 351.213(b), the petitioner requested an administrative 
review of six manufacturers/exporters of rebar from Korea: Dongil, 
Dongkuk Steel Mill Co. Ltd. (``DSM''), Hanbo, INI Steel, Korea Iron and 
Steel Co., Ltd. (``KISCO''), and Kosteel Co., Ltd. (``Kosteel''). On 
October 24, 2003, the Department published the notice of initiation of 
this administrative review, covering the period September 1, 2002, 
through August 31, 2003. See Initiation of Antidumping and 
Countervailing Duty Administrative Reviews, 68 FR 60910 (October 24, 
2003).
    On October 22, 2003, the Department issued the antidumping 
questionnaire to each of the six manufacturers/exporters listed above. 
On November 12, 2003, DSM and KISCO notified the Department that they 
had no sales or shipments of subject merchandise to the United States 
during the POR. On December 3, 2003, Kosteel also notified the 
Department that it had no sales or shipments of subject merchandise to 
the United States during the POR. Dongil, Hanbo, and INI Steel failed 
to respond to the Department's November 12, 2003, questionnaire.
    On May 6, 2004, the Department notified interested parties that we 
intend to rescind this administrative review with respect to those 
manufacturers/exporters that had no sales or shipments during the POR. 
See Memorandum to the File from Richard Johns, International Trade 
Compliance Analyst, ``Rescission of Antidumping Duty Administrative 
Review of Steel Concrete Reinforcing Bars from Korea for the Period of 
Review September 1, 2002 through August 31, 2003,'' dated May 6, 2004. 
We invited interested parties to comment on our intention to rescind 
the review with respect to companies for which there is no evidence of 
sales or shipments of subject merchandise to the United States during 
the POR.
    On May 11, 2004, the Department sent a letter to Dongil, Hanbo, and 
INI Steel informing these companies that we did not receive a response 
from them to the antidumping questionnaire. In the letter, the 
Department stated that, if the reason as to why they did not respond to 
the antidumping questionnaire is that they had no shipments of subject 
merchandise to the United States during the POR, they should inform the 
Department of this fact; otherwise, the Department may conclude that 
these companies decided not to cooperate with the Department's review. 
In response, on May 13, 2004, INI Steel reported that it had no sales 
or shipments of subject merchandise to the United States during the 
POR. Dongil and Hanbo did not respond to the Department's May 11, 2004, 
letter.
    On May 12, 2004, the Department released to interested parties the 
results of a U.S. Customs and Border Protection (``CBP'') data query 
for shipments of subject merchandise to the United States during the 
POR. See Memorandum to the File from Richard Johns, International Trade 
Compliance Analyst, ``U.S. Customs and Border Protection Data Query 
Results,'' dated May 12, 2004. We invited interested parties to comment 
on the results of this data query. We received the petitioner's 
comments regarding the Department's May 6, 2004, and May 12, 2004, 
memoranda on May 20, 2004. In its comments, the petitioner did not 
provide any evidence of sales or shipments from DSM, INI Steel, KISCO, 
or Kosteel. The petitioner recommends that the Department apply total 
AFA against Dongil and Hanbo because these companies failed to provide 
the information requested by the Department's October 22, 2003, 
antidumping questionnaire and May 11, 2004, letter. The petitioner also 
recommends that the Department not rescind the review with respect to 
DSM, INI Steel, KISCO, and Kosteel because the Department's query of 
CBP data covered only the months of the POR. According to the 
petitioner, limiting the data query to only the months of the POR fails 
to capture sales made during the POR which were based upon entries made 
prior to the POR, in addition to sales made during the POR which were 
based upon entries made after the POR. To account for these potential 
problems, the petitioner urges the Department to request further 
information from DSM, INI Steel, KISCO, and Kosteel regarding the date 
of sale used by these companies when they informed the Department that 
they had no sales during the POR.
    Due to the unexpected emergency closure of the main Commerce 
building on Tuesday, June, 1, 2004, the Department has tolled the 
deadline for these preliminary/final results by one day to June 2, 
2004.
    As noted above, DSM, INI Steel, KISCO, and Kosteel notified the 
Department that they had no sales or shipments of subject merchandise 
in the United States during the POR. The Department obtained data from 
CBP that supported their claims of no entries during the POR. In 
addition, no interested party provided evidence of sales or shipments 
of subject merchandise from DSM, INI Steel, KISCO, or Kosteel during 
the POR. Furthermore, with respect to the arguments raised by the 
petitioner in its comments on our intent to rescind this review in 
part, we note that the antidumping questionnaire issued to the six 
respondents contains clear instructions on how to identify the universe 
of sales that should be reported in this POR. Accordingly, we are 
preliminarily rescinding the review with respect to DSM, INI Steel, 
KISCO, and Kosteel. Because Dongil and Hanbo failed to respond to the 
Department's October 22, 2003, questionnaire and May 11, 2004, letter, 
we preliminarily find that the application of total AFA is warranted in 
this case.

Scope of the Review

    The product covered by this administrative review is all rebar sold 
in

[[Page 31963]]

straight lengths, currently classifiable in the Harmonized Tariff 
Schedule of the United States (``HTSUS'') under item number 7214.20.00 
or any other tariff item number. Specifically excluded are plain rounds 
(i.e., non-deformed or smooth bars) and rebar that has been further 
processed through bending or coating. The HTSUS subheadings are 
provided for convenience and customs purposes. The written description 
of the scope of this proceeding is dispositive.

Facts Available

    Section 776(a)(2) of the Tariff Act of 1930, as amended (``the 
Act''), provides that if any interested party: (A) Withholds 
information that has been requested by the Department; (B) fails to 
provide such information by the deadlines for submission of the 
information or in the form or manner requested; (C) significantly 
impedes an antidumping investigation; or (D) provides such information 
but the information cannot be verified, the Department shall, subject 
to section 782(d) of the Act, use facts otherwise available in making 
its determination.
    Section 782(d) of the Act provides that, if the Department 
determines that a response to a request for information does not comply 
with the request, the Department will inform the person submitting the 
response of the nature of the deficiency and shall, to the extent 
practicable, provide that person the opportunity to remedy or explain 
the deficiency. If that person submits further information that 
continues to be unsatisfactory, or this information is not submitted 
within the applicable time limits, the Department may, subject to 
section 782(e), disregard all or part of the original and subsequent 
responses, as appropriate.
    Section 782(e) of the Act states that the Department shall not 
decline to consider information deemed ``deficient'' under section 
782(d) if: (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.
    Furthermore, section 776(b) of the Act states that if the 
Department ``finds that an interested party has failed to cooperate by 
not acting to the best of its ability to comply with a request for 
information from the administering authority or the Commission, the 
administering authority or the Commission * * *, in reaching the 
applicable determination under this title, may use an inference that is 
adverse to the interests of that party in selecting from among the 
facts otherwise available.'' See also Statement of Administrative 
Action (``SAA'') accompanying the URAA, H.R. Rep. No. 103-316 at 870 
(1994).

Application of Facts Available

    The evidence on the record of this review establishes that, 
pursuant to section 776(a)(2)(A) of the Act, the use of total facts 
available (``FA'') is warranted in determining the dumping margin for 
U.S. sales of rebar made by Dongil and Hanbo because these two 
companies failed to provide requested information. As stated above, on 
October 22, 2003, the Department issued the antidumping questionnaire 
to six manufacturers/exporters of the subject merchandise. Four 
companies ultimately advised the Department that they did not have 
shipments or sales of subject merchandise to the United States during 
the POR. Dongil and Hanbo failed to respond to the Department's 
antidumping questionnaire. On May 11, 2004, we informed Dongil and 
Hanbo that, because they failed to respond to the Department's 
antidumping questionnaire, and had not informed the Department as to 
whether they had sales or shipments of subject merchandise to the 
United States during the POR, we may use AFA to determine their dumping 
margins. Dongil and Hanbo did not respond to the Department's May 11, 
2004, letter. Based on the data obtained from CBP, the Department 
cannot conclude that these companies had no sales to the United States 
during the POR. See Memorandum to the File from Richard Johns, 
International Trade Compliance Analyst, ``Entry Data With Respect to 
Dongil and Hanbo,'' dated June 1, 2004.
    Because Dongil and Hanbo failed to provide the necessary 
information requested by the Department, pursuant to section 
776(a)(2)(A) of the Act, we must establish the margins for these 
companies based on the facts otherwise available.

Use of Adverse Inferences

    In selecting from among the facts otherwise available, pursuant to 
section 776(b) of the Act, an adverse inference is warranted when the 
Department has determined that a respondent has ``failed to cooperate 
by not acting to the best of its ability to comply with a request for 
information.'' Section 776(b) of the Act goes on to note that an 
adverse inference may include reliance on information derived from (1) 
the petition; (2) a final determination in the investigation under this 
title; (3) any previous review under section 751 or determination under 
section 753, or (4) any other information on the record.
    Adverse inferences are appropriate ``to ensure that the party does 
not obtain a more favorable result by failing to cooperate than if it 
had cooperated fully.'' See SAA at 870; Borden, Inc. v. United States, 
4 F. Supp. 2d 1221 (CIT 1998); Mannesmannrohren-Werke AG v. United 
States, 77 F. Supp. 2d 1302 (CIT 1999). The Court of Appeals for the 
Federal Circuit (CAFC), in Nippon Steel Corporation v. United States, 
337 F. 3d 1373, 1380 (Fed. Cir. 2003), provided an explanation of the 
``failure to act to the best of its ability'' standard, holding that 
the Department need not show intentional conduct existed on the part of 
the respondent, but merely that a ``failure to cooperate to the best of 
a respondent's ability'' existed, i.e., information was not provided 
``under circumstances in which it is reasonable to conclude that less 
than full cooperation has been shown.'' Id. The CAFC did acknowledge, 
however, that ``deliberate concealment or inaccurate reporting'' would 
certainly be a reason to apply AFA, although it indicated that 
inadequate responses to agency inquiries ``would suffice'' as well. Id.
    To examine whether the respondent ``cooperated'' by ``acting to the 
best of its ability'' under section 776(b) of the Act, the Department 
considers, inter alia, the accuracy and completeness of submitted 
information and whether the respondent has hindered the calculation of 
accurate dumping margins. See Certain Welded Carbon Steel Pipes and 
Tubes From Thailand: Final Results of Antidumping Duty Administrative 
Review, 62 FR 53808, 53819-53820 (October 16, 1997).
    The record shows that Dongil and Hanbo failed to cooperate to the 
best of their ability, within the meaning of section 776(b) of the Act. 
In reviewing the evidence on the record, the Department finds that 
Dongil and Hanbo failed to provide requested information. Moreover, 
these companies failed to offer any explanation for their failure to 
respond to our antidumping questionnaire or May 11, 2004, letter. As a 
general matter, it is reasonable for the Department to assume that 
these companies possessed the records necessary to participate in this 
review; however, by not supplying the information the Department 
requested, these companies failed to cooperate to the best of their 
ability. As these companies have failed to cooperate to the best of 
their ability, we are applying an adverse inference pursuant to section

[[Page 31964]]

776(b) of the Act. As AFA for Dongil and Hanbo, we have used a rate of 
102.28 percent, which is the highest margin from any segment of the 
proceeding. Specifically, this rate was the highest margin alleged for 
any Korean company in the petition and is the rate used as AFA for 
Hanbo in the final determination of the less-than-fair-value (``LTFV'') 
investigation. See Notice of Final Determination of Sales at Less Than 
Fair Value: Steel Concrete Reinforcing Bars From the Republic of Korea, 
66 FR 33526 (June 22, 2001).

Corroboration of Information

    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{time} 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 SAA 
accompanying the URAA, H.R. Doc. No. 103-316 at 870 (1994) and 19 CFR 
351.308(d).
    The SAA further provides that the term ``corroborate'' means that 
the Department will satisfy itself that the secondary information to be 
used has probative value. See SAA at 870. Thus, to corroborate 
secondary information, the Department will, to the extent practicable, 
examine the reliability and relevance of the information used. During 
the LTFV investigation, we examined the reliability of the 102.28 
percent rate selected as AFA for Hanbo and found it to be reliable. See 
Memorandum to Troy H. Cribb, Assistant Secretary for Import 
Administration, from Holly A. Kuga, Acting Deputy Assistant Secretary 
for AD/CVD Enforcement, Group II, ``The Use of Facts Available for 
Hanbo Iron & Steel Co. Ltd., and Corroboration of Secondary 
Information,'' dated January 16, 2001, and placed on the record of this 
review concurrently with these preliminary results. We have re-examined 
the information used as FA in the LTFV investigation and we consider it 
reliable, for purposes of this second administrative review.
    As to the relevance of the AFA rate, the CIT has stated that 
Congress ``intended for an adverse facts available rate to be a 
reasonably accurate estimate of the respondent's actual rate, albeit 
with some built-in increase intended as a deterrent to non-
compliance.'' F.Lli De Cecco Di Filippo Fara S. Martino S.p.A., v. 
U.S., 216 F.3d 1027, 1032 (Fed. Cir. 2000). The Department considers 
information reasonably at its disposal to determine whether a margin 
continues to have relevance. Where circumstances indicate that the 
selected margin is not appropriate as AFA, the Department will 
disregard the selected margin and determine an appropriate margin. See 
e.g., Fresh Cut Flowers from Mexico: Final Results of Antidumping 
Administrative Review, 61 FR 6812 (February 22, 1996).
    With respect to the rate selected for Dongil and Hanbo, we note 
that in determining the relevant AFA rate, the Department assumes that 
if an uncooperative respondent could have demonstrated that its dumping 
margin is lower than the highest prior margin, it would have provided 
information showing the margin to be less. See Rhone Poulenc, Inc. v. 
United States, 899 F.2d 1185, 1190-91 (Fed. Cir. 1990) (``Rhone 
Poulenc''). Given Dongil and Hanbo's failure to cooperate to the best 
of their respective abilities in the instant administrative review, we 
have no reason to believe that the dumping margins for their sales of 
subject merchandise would be any less than the current ``all others'' 
rate of 22.89 percent for Dongil, which does not have its own 
individual rate, or Hanbo's current cash deposit rate of 102.28 
percent. In Rhone Poulenc, the CAFC found that the presumption that, 
``the highest prior margin was the best information of current 
margins'' was a permissible interpretation of 19 U.S.C. 1677e(c). See 
Rhone Poulenc, 899 F.2d at 1190. In upholding this presumption, the 
CAFC cited the rationale underlying the adverse inference rule, that 
the presumption ``reflects a common sense inference that the highest 
prior margin is the most probative evidence of current margins because, 
if it were not so, the importer, knowing of the rule, would have 
produced current information showing the margin to be less.'' Id. In 
other proceedings, the Department has used the highest margin as AFA. 
See, e.g., Freshwater Crawfish Tail Meat from the People's Republic of 
China; Notice of Final Results of Antidumping Duty Administrative 
Review, 68 FR 19504 (April 21, 2003). In fact, the Department used the 
102.28 percent rate as AFA in the final determination of the LTFV 
investigation with respect to Hanbo. Therefore, Dongil and Hanbo had 
notice that the 102.28 percent rate may be used as the AFA rate that 
would be applied for their failure to cooperate. Consequently, in 
keeping with Rhone Poulenc, we consider the 102.28 percent rate to be 
the most probative evidence of current margins for Dongil and Hanbo 
because, if it were not so, these two manufacturers/exporters, knowing 
of the rule, would have produced current information showing the margin 
to be less. Therefore, we consider the 102.28 percent rate to be 
relevant.
    Accordingly, we have determined that the rates selected as AFA are 
both reliable and relevant. Therefore, we have corroborated these rates 
in accordance with section 776(c) of the Act.

Preliminary Results of Review

    As a result of our review, we preliminarily determine the following 
weighted-average dumping margin exists for the period September 1, 
2002, through August 31, 2003:

------------------------------------------------------------------------
                                                             Weighted-
                  Manufacturer/exporter                   average margin
                                                           (percentage)
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Dongil Industries Co. Ltd...............................          102.28
Hanbo Iron & Steel Co., Ltd.............................          102.28
------------------------------------------------------------------------

Public Comment

    According to 19 CFR 351.224(b), the Department will disclose any 
calculations performed in connection with the preliminary results of 
review within five days of the date of publication of the preliminary 
notice. However, in the instant review, the Department did not perform 
any calculations because all margins result from the application of 
total AFA. Therefore, no calculations will be disclosed in this case.
    An interested party may request a hearing within 30 days of 
publication of the preliminary results. See 19 CFR 351.310(c). We will 
issue a memorandum identifying the date of a hearing, if one is 
requested. Pursuant to 19 CFR 351.309, interested parties may submit 
written comments in response to these preliminary results. Case briefs 
are to be submitted within 30 days after the date of publication of 
this notice, and rebuttal briefs, limited to arguments raised in case 
briefs, are to be submitted no later than five days after the time 
limit for filing case briefs. Parties who submit arguments are 
requested to submit with the argument (1) a statement of the issue, (2) 
a brief summary of the argument, and (3) a table of authorities. 
Further, the Department requests that parties submitting written 
comments provide the Department with a diskette containing the public 
version of those comments. Unless the deadline is extended pursuant to 
section 751(a)(3)(A) of the Act, the Department will issue the final 
results of this administrative review, including the results of our 
analysis of the issues

[[Page 31965]]

raised by the parties in their comments, within 120 days of publication 
of the preliminary results. The assessment of antidumping duties on 
entries of merchandise covered by this review and future deposits of 
estimated duties shall be based on the final results of this review.

Duty Assessments

    The Department shall determine, and CBP shall assess, antidumping 
duties on all appropriate entries. According to 19 CFR 351.212(b)(1), 
the Department normally will calculate an assessment rate for each 
importer of subject merchandise covered by the review by dividing the 
dumping margin found on the subject merchandise examined by the entered 
value of such merchandise for normal customs duty purposes. In the 
instant review, for the respondents receiving dumping rates based upon 
AFA, the Department will instruct CBP to liquidate entries according to 
the AFA ad valorem rate. For the respondents being rescinded from this 
review, the Department will instruct CBP to assess antidumping duties 
at the cash deposit rate in effect at the time of entry. The Department 
will issue appropriate appraisement instructions directly to CBP within 
fifteen days of publication of the final results of review.

Cash Deposit Rates

    The following cash deposit requirements will be effective upon 
completion of the final results of this administrative review for all 
shipments of rebar from Korea entered, or withdrawn from warehouse, for 
consumption on or after the publication date of the final results of 
this administrative review, as provided by section 751(a)(1) of the 
Act: (1) The cash deposit rate for Dongil and Hanbo will be the rate 
established in the final results of this review; (2) for previously 
reviewed or investigated companies not listed above, the cash deposit 
rate will continue to be the company-specific rate published for the 
most recent review period; (3) if the exporter is not a firm covered in 
this review, a prior review, or the LTFV investigation, but the 
manufacturer is, the cash deposit rate will be the rate established for 
the most recent period for the manufacturer of the subject merchandise; 
and (4) the cash deposit rate for all other manufacturers or exporters 
will continue to be 22.89 percent, the ``all others'' rate made 
effective by the LTFV investigation. See Notice of Final Determination 
of Sales at Less Than Fair Value: Steel Concrete Reinforcing Bars From 
the Republic of Korea, 66 FR 33526 (June 22, 2001). These required cash 
deposit rates shall remain in effect until publication of the final 
results of the next administrative review.

Notification to Importers

    This notice also serves as a preliminary reminder to importers of 
their responsibility under 19 CFR 351.402(f) to file a certificate 
regarding the reimbursement of antidumping duties prior to liquidation 
of the relevant entries during this review period. Failure to comply 
with this requirement could result in the Secretary's presumption that 
reimbursement of antidumping duties occurred and the subsequent 
assessment of double antidumping duties.
    We are issuing and publishing this notice in accordance with 
sections 751(a)(1) and 777(i)(1) of the Act.

    Dated: June 2, 2004.
James J. Jochum,
Assistant Secretary for Import Administration.
[FR Doc. 04-12941 Filed 6-7-04; 8:45 am]
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