[Federal Register Volume 70, Number 159 (Thursday, August 18, 2005)]
[Notices]
[Pages 48538-48541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-4515]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-588-866]


Notice of Preliminary Determination of Sales at Less Than Fair 
Value: Superalloy Degassed Chromium from Japan

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

EFFECTIVE DATE: August 18, 2005.
SUMMARY: We preliminarily determine that imports of superalloy degassed 
chromium from Japan are being, or are likely to be, sold in the United 
States at less than fair value, as provided in section 733 of the 
Tariff Act of 1930, as amended. Interested parties are invited to 
comment on this preliminary determination. We will make our final 
determination within 75 days after the date of this preliminary 
determination.

FOR FURTHER INFORMATION CONTACT: Janis Kalnins or Minoo Hatten, Import 
Administration, International Trade Administration, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 
20230; telephone: (202) 482-1392 or (202) 482-1690, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On March 24, 2005, the Department of Commerce (the Department) 
initiated the antidumping investigation of superalloy degassed chromium 
from Japan. See Initiation of Antidumping Duty Investigation: 
Superalloy Degassed Chromium from Japan, 70 FR 16220 (March 30, 2005) 
(Initiation Notice). The Department set aside a period for all 
interested parties to raise issues regarding product coverage. See 
Initiation Notice. We received comments regarding product coverage from 
interested parties. For a detailed discussion of the comments regarding 
the scope of the merchandise under investigation, please see the 
``Scope Comments'' section below.
    On March 31, 2005, the Department issued quantity and value (Q&V) 
questionnaires to nine potential respondents. On April 19, 2005, we 
issued a memorandum to the file including the responses of eight of the 
nine companies from which we requested Q&V information. See Memorandum 
from Susan Lehman to the File entitled ``Superalloy Degassed Chromium 
from Japan Mini Quantity and Value Questionnaire Responses.'' On April 
28, 2005, we concluded that the only potential respondent was JFE 
Material Co., Ltd. (JFE Material). See the Memorandum from Thomas 
Schauer to the File entitled ``Antidumping Duty Investigation of 
Superalloy Degassed Chromium from Japan Respondent Selection'' 
(Respondent Selection Memo). On May 3, 2005, we issued a memorandum to 
the file including the response of the ninth company (Sojitz 
Corporation) from which we requested Q&V information. The response we 
received from Sojitz Corporation to our Q&V questionnaire did not alter 
out conclusion that JFE Material was the only potential respondent. See 
Memorandum from Susan Lehman to the File entitled ``Antidumping Duty 
Investigation of Superalloy Degassed Chromium from Japan Sojitz 
Corporation.''
    On April 21, 2005, the International Trade Commission (ITC) issued 
its affirmative preliminary determination that there is a reasonable 
indication that an industry in the United States is materially injured 
by reason of imports from Japan of superalloy degassed chromium. See 
Superalloy Degassed Chromium from Japan, 70 FR 20771 (April 21, 2005).
    On April 29, 2005, we issued Sections A, B, C, D, and E\1\ of the 
antidumping questionnaire to JFE Material. We did not receive a 
response from JFE Material by the close of business on June 6, 2005, 
the established deadline. On June 8, 2005, we issued a letter to JFE 
Material extending the deadline for submission of the antidumping 
questionnaire response to June 15, 2005, thereby affording it 
additional time to respond. We received no response from JFE Material 
to our questionnaire nor any other communication from JFE Material 
since we issued the questionnaire.
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    \1\ Section A of the antidumping duty questionnaire requests 
general information concerning a company's corporate structure and 
business practices, the merchandise under investigation, and the 
manner in which it sells that merchandise in all of its markets. 
Section B requests a complete listing of all of the company's home-
market sales of the foreign like product or, if the home market is 
not viable, of sales of the foreign like product in the most 
appropriate third-country market. Section C requests a complete 
listing of the company's U.S. sales of subject merchandise. Section 
D requests information of the cost of production of the foreign like 
product and the constructed value of the merchandise under 
investigation. Section E requests information on further-
manufacturing activities.
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Period of Investigation

    The period of investigation is January 1, 2004, through December 
31, 2004.

Scope of Investigation

    The product covered by this investigation is all forms, sizes, and 
grades of superalloy degassed chromium from Japan. Superalloy degassed 
chromium is a high-purity form of chrome metal that generally contains 
at least 99.5 percent, but less than 99.95 percent, chromium. 
Superalloy degassed chromium contains very low levels of certain 
gaseous elements and other impurities (typically no more than 0.005 
percent nitrogen, 0.005 percent sulphur, 0.05 percent oxygen, 0.01 
percent aluminum, 0.05 percent silicon, and 0.35 percent iron). 
Superalloy degassed chromium is generally sold in briquetted form, as 
``pellets'' or ``compacts,'' which typically are 1[bdfrac12] inches x 1 
inch x 1 inch or smaller in size and have a smooth surface. Superalloy 
degassed chromium is currently classifiable under subheading 8112.21.00 
of the Harmonized Tariff Schedule of the United States (HTSUS). This 
investigation covers all chromium meeting the above specifications for 
superalloy degassed chromium regardless of tariff classification.
    Certain higher-purity and lower-purity chromium products are 
excluded from the scope of this investigation. Specifically, the 
investigation does not cover electronics-grade chromium, which contains 
a higher percentage of chromium (typically not less than 99.95 
percent), a much lower level of iron (less than 0.05 percent), and 
lower levels of other impurities than superalloy degassed chromium. The 
investigation also does not cover ``vacuum melt grade'' (VMG) chromium, 
which normally contains at least 99.4 percent chromium and contains a 
higher level of one or more impurities (nitrogen, sulphur, oxygen, 
aluminum and/or silicon) than specified above for superalloy degassed 
chromium.
    Although the HTSUS subheading is provided for convenience and 
customs purposes, the written description of the scope of this 
investigation is dispositive.

Scope Comments

    In accordance with the preamble to our regulations (see Antidumping 
Duties; Countervailing Duties, 62 FR 27296 (May 19, 1997)), in our 
Initiation Notice we set aside a period of time for

[[Page 48539]]

parties to raise issues regarding product coverage and encouraged all 
parties to submit comments within 20 calendar days of publication of 
the Initiation Notice. We granted extensions to the time limit for 
submitting scope comments on May 3, 2005, and May 17, 2005.
    On May 24, 2005, Mitsui & Co. (U.S.A.), Inc. (Mitsui), submitted 
timely scope comments in which it argued that the Department should 
revise the language of the scope to clarify that chromium metal with a 
chromium content either below 99.5 percent or equal to or above 99.95 
percent is excluded from the scope. On June 3, 2005, Eramet Marietta 
Inc. and Paper, Allied-Industrial, Chemical and Energy Workers 
International Union (the petitioners) submitted rebuttal comments to 
Mitsui's scope comments. The petitioners argue that Mitsui's ``proposed 
changes are contrary to the intent of the petition and would permit 
wholesale circumvention.'' On June 10, 2005, Mitsui submitted rebuttal 
comments arguing that, contrary to the petitioners' assertions, 
creating a more finite scope definition is necessary to counteract 
circumvention. On June 24, 2005, the petitioners submitted rebuttal 
comments to Mitsui's June 10, 2005, submission, arguing against 
Mitsui's proposed changes to the scope of this investigation.
    On May 24, 2005, Tosoh Corporation and Tosoh Specialty Material 
Corporation (collectively, Tosoh) submitted scope comments in which it 
argued that the following products produced and/or exported by Tosoh 
are outside the scope of the proceeding on superalloy degassed 
chromium: certain chromium sputtering targets and spent sputtering 
targets without a metal backing plate; certain chromium sputtering 
targets with a metal backing plate; certain chromium ingots; non-
degassed chromium metal flakes. Tosoh claimed that the petitioners 
agreed with their assertion. In their June 1, 2005, submission, the 
petitioners agreed with Tosoh that it would be appropriate for the 
Department to determine that the above-mentioned products are outside 
the scope of the investigation. On August 4, 2005, the petitioners 
provided additional clarification with respect to their position on 
Tosoh's scope-clarification request.
    We do not have the technical information at this time to determine 
whether clear chromium-content parameters exist which define superalloy 
degassed chromium. As such, we have not made a decision with respect to 
Mitsui's scope comments. Further, we continue to evaluate the scope 
comments with respect to Tosoh's scope-clarification request and the 
petitioners' August 4, 2005, suggested scope language.
    The Department invites all interested parties to submit comments 
with respect to the scope by September 1, 2005, and rebuttal comments 
by September 7, 2005. Comments should be addressed to Import 
Administration's Central Records Unit at Room 1870, U.S. Department of 
Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 
20230. The period of scope consideration is intended to provide the 
Department with ample opportunity to consider all comments and consult 
with parties prior to the issuance of the final determination.

Use of Facts Otherwise Available

    For the reasons discussed below, we determine that the use of 
adverse facts available (AFA) is appropriate for the preliminary 
determination with respect to JFE Material.

A. Use of Facts Available

    Section 776(a)(2) of the Tariff Act of 1930, as amended (the Act), 
provides that, if an interested party withholds information requested 
by the administering authority, fails to provide such information by 
the deadlines for submission of the information and in the form or 
manner requested, subject to subsections (c)(1) and (e) of section 782, 
significantly impedes a proceeding under this title, or provides such 
information but the information cannot be verified as provided in 
782(i), the administering authority shall use, subject to section 
782(d) of the Act, facts otherwise available in reaching the applicable 
determination. Section 782(d) of the Act provides that, if the 
administering authority determines that a response to a request for 
information does not comply with the request, the administering 
authority shall promptly inform the responding party and provide an 
opportunity to remedy the deficient submission. Section 782(e) of the 
Act further states that 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.
    In this case, JFE Material did not provide pertinent information we 
requested that is necessary to calculate an antidumping margin for the 
preliminary determination. Specifically, JFE Material did not respond 
to the Department's questionnaire, which is necessary for the 
Department to complete its calculations. Thus, in reaching our 
preliminary determination, pursuant to sections 776(a)(2)(A), (B), and 
(C) of the Act, we have based JFE Material's dumping margin on facts 
otherwise available.

B. Application of Adverse Inferences for Facts Available

    In applying the facts otherwise available, section 776(b) of the 
Act provides that, if the administering authority 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, in reaching the applicable determination under 
this title, the administering authority may use an inference adverse to 
the interests of that party in selecting from among the facts otherwise 
available. See, e.g., Notice of Preliminary Determination of Sales at 
Less Than Fair Value, and Postponement of Final Determination: Certain 
Circular Welded Carbon-Quality Line Pipe From Mexico, 69 FR 59892 
(October 6, 2004).
    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 Statement of Administrative Action 
accompanying the Uruguay Round Agreements Act, H. Doc. No. 103-316, at 
870 (1994) (SAA). Further, ``affirmative evidence of bad faith, or 
willfulness, on the part of a respondent is not required before the 
Department may make an adverse inference.'' See Antidumping Duties; 
Countervailing Duties, 62 FR 27355 (May 19, 1997). Although the 
Department provided the respondent with notice of the consequences of 
failure to respond adequately to the questionnaire in this case, JFE 
Material did not respond to the questionnaire. This constitutes a 
failure on the part of JFE Material to cooperate to the best of its 
ability to comply with a request for information by the Department 
within the meaning of section 776 of the Act. Therefore, the Department 
has preliminarily determined that, in selecting from among the facts 
otherwise available, an adverse inference is warranted. See, e.g., 
Notice of Final Determination of Sales at Less than Fair Value: 
Circular Seamless Stainless Steel Hollow Products from Japan, 65 FR 
42985 (July 12, 2000) (the Department applied total AFA where the 
respondent failed to

[[Page 48540]]

respond to the antidumping questionnaire).

C. Selection and Corroboration of Information Used as Facts Available

    Where the Department applies AFA because a respondent 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 authorizes the 
Department to rely on information derived from the petition, a final 
determination, a previous administrative review, or other information 
placed on the record. See also 19 CFR 351.308(c) and SAA at 829-831. In 
this case, because we are unable to calculate a margin based on JFE 
Material's own data and because an adverse inference is warranted, we 
have assigned to JFE Material the margin alleged in the petition and 
which we included in the notice of initiation of this investigation. 
See Initiation Notice, 70 FR at 16222.
    When using facts otherwise available, section 776(c) of the Act 
provides that, when the Department relies on secondary information 
(such as the petition), it must, to the extent practicable, corroborate 
that information from independent sources that are reasonably at its 
disposal.
    The SAA clarifies that ``corroborate'' means the Department will 
satisfy itself that the secondary information to be used has probative 
value. See SAA at 870. The Department's regulations state 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 19 CFR 351.308(d) and SAA at 870.
    For the purposes of this investigation, to the extent appropriate 
information was available, we reviewed the adequacy and accuracy of the 
information in the petition during our pre-initiation analysis. See the 
March 24, 2005, Office of AD/CVD Operations Initiation Checklist 
(Initiation Checklist) on file in Import Administration's Central 
Records Unit, Room 1870, U.S. Department of Commerce, 14th Street and 
Constitution Avenue, NW, Washington, DC 20230.
    For this preliminary determination, we examined evidence supporting 
the calculations in the petition to determine the probative value of 
the margins 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 and normal-value calculations on which the margins in the 
petition were based. We find that the estimated margin we set forth in 
the Initiation Notice has probative value. See Memorandum to the File 
from Dmitry Vladimirov entitled ``Preliminary Determination in the 
Antidumping Duty Investigation of Superalloy Degassed Chromium from 
Japan: Corroboration of Total Adverse Facts Available Rate,'' dated 
August 11, 2005. Therefore, in selecting AFA with respect to JFE 
Material, we have applied the margin rate of 129.32 percent, the 
highest estimated dumping margin set forth in the notice of initiation. 
See Initiation Notice.

All Others Rate

    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 the zero, de minimis, or facts-available margins to 
establish the all others rate. When the data does not permit weight-
averaging such other margins, the SAA provides that the Department may 
use any other reasonable methods. See SAA at 873.
    Because the petition contained only one estimated dumping margin 
and the sole respondent did not provide a questionnaire response, there 
are no additional estimated margins available with which to create the 
all others rate. See Notice of Final Determination of Sales at Less 
Than Fair Value: Ferrovandium from the Republic of South Africa, 67 FR 
71136 (November 29, 2002). Therefore, we are using the initiation 
margin of 129.32 percent as the all others rate.

Suspension of Liquidation

    In accordance with section 733(d) of the Act, we are directing U.S. 
Customs and Border Protection (CBP) to suspend liquidation of all 
entries of superalloy degassed chromium from Japan that are entered, or 
withdrawn from warehouse, for consumption on or after the date of 
publication of this notice in the Federal Register. We will instruct 
CBP to require a cash deposit or the posting of a bond equal to the 
weighted-average margin, 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
              Manufacturer or Exporter                 Margin (percent)
------------------------------------------------------------------------
JFE Material Co., Ltd...............................              129.32
All Others..........................................              129.32
------------------------------------------------------------------------

International Trade Commission Notification

    In accordance with section 733(f) of the Act, we have notified the 
ITC of our preliminary determination of sales at less than fair value. 
If our final antidumping determination is affirmative, the ITC will 
determine whether the imports covered by that determination are 
materially injuring, or threatening material injury to, the U.S. 
industry. The deadline for the Commission's 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

    Case briefs for this investigation must be submitted no later than 
30 days after the publication of this notice. Rebuttal briefs must be 
filed within five 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.
    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 an interested party. If a request for a hearing 
is made in an investigation, the hearing normally will 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, N.W., 
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. We will 
make our final determination within 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.


[[Page 48541]]


    Dated: August 11, 2005.
Barbara E. Tillman,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-4515 Filed 8-17-05; 8:45 am]
BILLING CODE 3510-DS-S