[Federal Register Volume 71, Number 28 (Friday, February 10, 2006)]
[Notices]
[Pages 7008-7012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1880]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-485-803]


Notice of Final Results of Antidumping Duty Administrative Review 
and Final Partial Rescission: Certain Cut-to-Length Carbon Steel Plate 
from Romania

AGENCY: Import Administration, International Trade Administration, 
Department of Commerce.
SUMMARY: On September 8, 2005, the Department of Commerce (``the

[[Page 7009]]

Department'') published the preliminary results of the administrative 
review of the antidumping duty order on certain cut-to-length carbon 
steel plate from Romania. The review covers Mittal Steel Galati, S.A. 
(``Mittal Steel'', formerly Ispat Sidex S.A.) a manufacturer of the 
subject merchandise, and Metalexportimport SA (``MEI''), an 
unaffiliated exporter. The period of review is August 1, 2003, through 
July 31, 2004. This administrative review also covers additional 
producers/exporters of the subject merchandise: Metanef, S.A. 
(``Metanef''), MINMET S.A. (``MINMET''), CSR SA Resita (``CSR'') and 
Combinatul de Oteluri Speciali Tirgoviste (``COST''), for which the 
Department is now finally rescinding this review because these 
producers/exporters, with the exception of CSR, did not ship subject 
merchandise during the period of review (``POR''). With respect to CSR, 
Nucor Corporation (``Nucor''), a petitioner in this proceeding, filed a 
timely request for withdrawal of the administrative review for this 
company.

EFFECTIVE DATE: February 6, 2006.

FOR FURTHER INFORMATION CONTACT: Patrick Edwards or John Drury, AD/CVD 
Operations, Office 7, Import Administration, International Trade 
Administration, U.S. Department of Commerce, 14th Street & Constitution 
Avenue, NW., Washington, DC 20230; telephone: (202) 482-8029 or (202) 
482-0195, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On September 8, 2005, the Department published the preliminary 
results of the administrative review of the antidumping duty order on 
certain cut-to-length carbon steel plate (``cut-to-length plate'') from 
Romania. See Certain Cut-to-Length Carbon Steel Plate from Romania: 
Preliminary Results of the Antidumping Duty Administrative Review and 
Partial Rescission, 70 FR 53333 (September 8, 2005) (``Preliminary 
Results''). We invited parties to comment on the Preliminary Results. 
Since the publication of the Preliminary Results, the following events 
have occurred.
    On September 16, 2005, Mittal Steel notified the Department that in 
the process of preparing a pre-verification reconciliation package for 
a separate proceeding, the company discovered a significant quantity of 
subject merchandise that it failed to report in response to the 
Department's section A questionnaire in this administrative review. See 
Memorandum from John Drury to the File, dated September 16, 2005. On 
September 20, 2005, Mittal Steel submitted a letter to the Department 
indicating that it would not participate in the cost verification, 
scheduled to begin on September 26, 2005, in Galati, Romania. The 
Department received additional correspondence from Mittal Steel on 
September 23, 2005, notifying the Department that, with the exception 
of case briefs and rebuttals and any hearing held in this 
administrative review, Mittal Steel would no longer ``actively 
participate'' in the proceeding. See Letter from Mittal Steel to the 
Secretary of Commerce, dated September 23, 2005. Additionally, Mittal 
Steel requested that the Department remove all of the company's 
business proprietary data submitted during the course of this review 
and return or destroy that data. On October 13, 2005, the Department 
issued a letter to Mittal Steel, indicating that the Department was in 
the process of removing all business proprietary information of Mittal 
Steel that was currently on the record of this review and that the 
Department had instructed all parties to the proceeding to remove and 
certify the destruction of Mittal Steel's proprietary information. On 
October 14, 2005, the Department notified Mittal Steel that all 
business proprietary data submitted during the course of this review 
had been destroyed and that all parties to this proceeding had also 
confirmed the destruction of Mittal Steel's business proprietary data 
in their possession. See Memorandum from Patrick Edwards to the File, 
dated October 14, 2005. On October 18, 2005, the Department received 
correspondence from MEI, also requesting the removal of business 
proprietary information that it had submitted on the record during the 
course of this administrative review. Accordingly, the Department then 
removed all of MEI's business proprietary data from the record.
    On October 17, 2005, the Department transferred to the record of 
this administrative review certain documentation from the immediately 
preceding administrative review (i.e., the 2002-2003 Administrative 
Review of Certain Cut-to-Length Carbon Steel Plate from Romania) to 
facilitate the Department's analysis for these final results. See 
Memorandum to the File from Patrick Edwards, Case Analyst, regarding 
Transfer of Information to Record, dated October 17, 2005. On October 
19, 2005, Mittal Steel submitted a letter to the Department, objecting 
to the transfer of documentation from the 2002-2003 administrative 
review to the record of this proceeding, stating that the Department's 
actions resulted in Nucor's access to Mittal Steel's 2002-2003 business 
proprietary data, which the Department had determined in the 
immediately preceding review that Nucor's counsel was not entitled to 
access. See Letter from Mittal Steel to the Secretary of Commerce, 
dated October 19, 2005. Mittal Steel asserts that its business 
proprietary data from the immediately preceding review is currently 
part of the administrative record filed with the Court of International 
Trade in the ongoing litigation in Mittal Steel Galati SA v. United 
States, Court No. 05-00311. Thus, Mittal Steel requested that the 
Department deny Nucor access to the business proprietary information 
transferred to the record of this review, because Nucor was denied APO 
access to the data in the immediately preceding review because Nucor 
filed an untimely request for an administrative protective order 
(``APO''). See Letter from Ann Sebastian, Director APO Unit, Import 
Administration to Alan H. Price, Wiley, Rein & Fielding, dated November 
12, 2004.
    On October 20, 2005, Nucor filed a response to Mittal Steel's 
letter of October 19, 2005, stating that it is entitled to access the 
business proprietary information transferred to the record of this 
administrative review, as the 2002-2003 and 2003-2004 reviews are two 
separate proceedings, the latter of which Nucor's APO application was 
approved by the Department and, as such, is entitled to access all APO 
information which the Department places on the record as an 
``authorized applicant''. See Letter from Nucor Corporation to the 
Secretary of Commerce, dated October 20, 2005. On October 24, 2005, the 
Department sent a letter to counsel for Mittal Steel, stating that, as 
authorized applicants under the APO, counsel for Nucor is entitled to 
receive access to all business proprietary information presented to or 
obtained by the Department in this segment of the proceeding under 19 
CFR sections 351.305 and 351.306. See Letter from Anne M. Sebastian, 
Director, APO Unit, Import Administration, to John Gurley, Arent Fox 
PLLC, dated October 24, 2005.
    On October 28, 2005, we received a case brief from Mittal Steel. We 
received a case brief from Nucor and IPSCO Steel Inc., (``IPSCO'') 
(collectively, ``petitioners'') on October 28, 2005. We received 
rebuttal briefs from IPSCO and Mittal Steel on November 2, 2005. Mittal 
Steel had requested a public hearing in this review, but withdrew its

[[Page 7010]]

request on November 1, 2005. Therefore, no public hearing was held.
    On December 28, 2005, because it was not practicable to complete 
the final results within the specified time period, the Department 
extended the deadline for the completion of the final results by thirty 
days. See Notice of Extension of Final Results of the 2003-2004 
Antidumping Duty Administrative Review of Certain Cut-to-Length Plate 
from Romania, 70 FR 76764 (December 28, 2005).

Final Partial Rescission

    In our preliminary results, we announced our determination to 
rescind the review with respect to Metanef, MINMET, and COST, because 
these parties had no entries or shipments of cut-to-length plate from 
Romania during the POR. We additionally announced our preliminary 
determination to rescind the review with respect to CSR, as petitioners 
withdrew their request for review with regard to this company. See 
Preliminary Results. We have received no new information or evidence of 
changed circumstances that would cause the Department to reconsider 
that determination. Therefore, we are rescinding the administrative 
review with respect to Metanef, MINMENT, CSR and COST.

Scope of the Order

    The products covered by this order include hot-rolled carbon steel 
universal mill plates (i.e., flat-rolled products rolled on four faces 
or in a closed box pass, of a width exceeding 150 millimeters but not 
exceeding 1,250 millimeters and of a thickness of not less than 4 
millimeters, not in coil and without patterns in relief), of 
rectangular shape, neither clad, plated nor coated with metal, whether 
or not painted, varnished, or coated with plastics or other nonmetallic 
substances; and certain hot-rolled carbon steel flat-rolled products in 
straight lengths, of rectangular shape, hot rolled, neither clad, 
plated, nor coated with metal, whether or not painted, varnished, or 
coated with plastics or other nonmetallic substances, 4.75 millimeters 
or more in thickness and of a width which exceeds 150 millimeters and 
measures at least twice the thickness, as currently classifiable in the 
HTS under item numbers 7208.31.0000, 7208.32.0000, 7208.33.1000, 
7208.33.5000, 7208.41.0000, 7208.42.0000, 7208.43.0000, 7208.90.0000, 
7210.70.3000, 7210.90.9000, 7211.11.0000, 7211.12.0000, 7211.21.0000, 
7211.22.0045, 7211.90.0000, 7212.40.1000, 7212.40.5000, and 
7212.50.0000. Included under this order are flat-rolled products of 
nonrectangular cross-section where such cross-section is achieved 
subsequent to the rolling process (i.e., products which have been 
``worked after rolling'')--for example, products which have been 
bevelled or rounded at the edges. Excluded from this review is grade X-
70 plate. These HTS item numbers are provided for convenience and 
customs purposes. The written description remains dispositive.

Analysis of Comments Received

    The issues raised in the case briefs by parties to this 
administrative review are addressed in the Issues and Decision 
Memorandum to David M. Spooner, Assistant Secretary for Import 
Administration, from Stephen Claeys, Deputy Assistant Secretary 
(``Decision Memorandum''), which is hereby adopted by this notice. A 
list of the issues addressed in the Decision Memorandum is appended to 
this notice. The Decision Memorandum is on file in the Central Records 
Unit in Room B-099 of the main Commerce building, and can also be 
accessed directly on the Web at http://ia.ita.doc.gov/frn. The paper 
copy and electronic version of the Decision Memorandum are identical in 
content.

Facts Available

    Pursuant to sections 776(a)(2)(A) and (C) and 776(b) of the Tariff 
Act of 1930, as amended (``the Act''), the Department finds that the 
application of adverse facts available (``AFA'') is warranted with 
regard to Mittal Steel and MEI because both companies decided to 
terminate their participation in this review and removed their business 
proprietary information from the record, and thus have significantly 
impeded the Department's completion of the review. See Letter from 
Mittal Steel to the Secretary of Commerce, dated September 23, 2005. In 
addition, the Department finds that those companies have failed to 
cooperate to the best of their abilities, within the meaning of section 
776(b) of the Act, as discussed further below.
    Section 776(a)(2) of the Act provides that, if an interested party 
or any other person (A) withholds information that has been requested 
by the administering authority or the Commission under this title, (B) 
fails to provide such information by the deadlines for submission of 
the information or in the form and manner requested, subject to 
subsections (c)(1) and (e) of section 782, (C) significantly impedes a 
proceeding under this title, or (D) provides such information but the 
information cannot be verified as provided in section 782(i), the 
administering authority and the Commission shall, subject to section 
782(d), use the facts otherwise available in reaching the applicable 
determination under this title. Section 782(d) of the Act provides that 
if a response to a request for information does not comply with the 
request, the Department shall promptly notify the respondent of the 
nature of the deficiency and shall, to the extent practicable, provide 
an opportunity to remedy or explain the deficiency in light of the time 
limits established for the completion of the review. Furthermore, 
section 776(b) of the Act provides that, if a party has failed to act 
to the best of its ability to comply with the Department's request for 
information, the Department may apply an adverse inference. See also, 
the Statement of Administrative Action (``SAA''), accompanying the 
URAA, H.R. Rp. No. 316, 103rd Cong., 2d Sess. 870.
    We find that facts available is warranted in accordance with 
section 776(a)(2)(A) and (C) of the Act, because Mittal Steel and MEI 
unilaterally decided to terminate their participation in this review, 
and both companies removed their business proprietary information 
submitted through their responses to the Department's antidumping duty 
questionnaires from the record information necessary to calculate a 
margin for these companies. As such, the Department is significantly 
impeded in calculating a margin because critical information regarding 
Mittal Steel and MEI's sales and quantities of sales in the home market 
and in the United States are only obtainable from the companies' 
questionnaire responses. Therefore, an accurate margin for these 
companies cannot be determined. Section 782(d) of the Act does not 
apply in this situation because Mittal Steel and MEI have terminated 
their participation in the review. Thus, we are using facts available, 
in accordance with sections 776(a)(2)(A) and (C) of the Act.
    Section 776(b) of the Act provides that, in selecting from among 
the facts available, the Department may use an inference that is 
adverse to the interests of the respondent, if it determines that a 
party has failed to cooperate to the best of its ability. The 
Department finds that Mittal Steel and MEI have failed to cooperate to 
the best of their abilities because these companies could comply with 
the Department's request for information as indicated by the completed 
questionnaire responses that Mittal Steel and MEI submitted on the

[[Page 7011]]

record before they withdrew these responses. Mittal Steel and MEI 
withdrew all of their business proprietary questionnaire responses and, 
thus, gave insufficient attention to their statutory duty to provide 
the Department with complete and accurate information. For all of the 
aforementioned reasons, the Department finds that Mittal Steel and MEI 
failed to cooperate to the best of their abilities. For a detailed 
analysis of the Department's decision to apply AFA, see Memorandum from 
John Drury and Patrick Edwards, Case Analysts, to the File: Final 
Results in the Antidumping Duty Administrative Review of Certain Cut-
to-Length Carbon Steel Plate form Romania: Total Adverse Facts 
Available and Corroboration Memorandum for Company Rate, dated February 
6, 2006.
    Therefore, in selecting from the facts available, the Department 
determines that an adverse inference is warranted. In accordance with 
section 776(b) of the Act, because of Mittal Steel and MEI's removal of 
all business proprietary data upon which any accurate margin could be 
calculated, the Department is applying total AFA to both Mittal Steel 
and MEI. For purposes of these final results, the Department will apply 
as AFA the current ``all-others'' rate of 75.04 percent, which is based 
on the final determination of the less-than-fair value investigation 
and is also the highest rate from any prior segment of this proceeding. 
See Final Determination of Sales at Less-Than-Fair Value: Certain Cut-
to-Length Carbon Steel Plate from Romania, 58 FR 37209 (July 9, 1993).
    We note that, in making adverse inferences, the SAA authorizes the 
Department to consider the extent to which a party may benefit from its 
own lack of cooperation. See SAA at 870. For purposes of our final 
results, we have carefully analyzed the rates contained in the petition 
and the rates in the less-than-fair-value (``LTFV'') investigation. 
Given that the 75.04 percent rate is the highest rate from any prior 
segment of this proceeding, and that Mittal Steel's calculated dumping 
margin from the Preliminary Results was 48.90 percent, we find that the 
75.04 percent rate will prevent Mittal Steel or MEI from benefiting 
from its lack of cooperation in this administrative review. For a 
detailed analysis of the Department's corroboration of the assigned 
adverse-facts-available rate and further detail on the Department's 
determination to apply AFA to these companies, see Final Determination 
in the Antidumping Duty Administrative Review of Certain Cut-to-Length 
Carbon Steel Plate from Romania: Total Adverse Facts Available 
Corroboration Memorandum for Company Rate, from John Drury and Patrick 
Edwards, Case Analysts, to the File, dated February 6, 2006 
(``Corroboration Memorandum'').

Corroboration of Secondary Information Used as AFA

    Section 776(c) of the Act provides that when the Department relies 
on the facts otherwise available and relies on ``secondary 
information,'' the Department shall, to the extent practicable, 
corroborate that information from independent sources reasonably at the 
Department's disposal. The SAA states that ``corroborate'' means to 
determine that the information used has probative value. See SAA at 
870. The Department has determined that to have probative value, 
information must be reliable and relevant. See Tapered Roller Bearings 
and Parts Thereof, Finished and Unfinished from Japan, 61 FR 57391, 
57392 (November 6, 1996). 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 Preliminary Determination of Sales at Less than Fair 
Value: High and Ultra-High Voltage Ceramic Station Post insulators from 
Japan, 68 FR 35627 (June 16, 2003); and Final Determination of Sales at 
Less than Fair Value: Live Swine from Canada, 70 FR 12181 (March 11, 
2005).
    The reliability of the AFA rate was determined by the calculation 
of the ``Romania-wide'' rate in the original LTFV investigation, and on 
the most appropriate surrogate value information available to the 
Department in the investigation, as well as information gathered by the 
Department during the present administrative review. Furthermore, the 
calculation of the final margins and the ``Romania-wide'' rate from the 
investigation was subject to comment from interested parties in the 
proceeding. See Final Determination of Sales at Less than Fair Value: 
Certain Cut-to-Length Carbon Steel Plate from Romania, 58 FR 37209 
(July 9, 1993). Moreover, this rate was used in the immediately 
preceding administrative review as the ``all others'' rate and no 
interested party challenged the reliability of this rate. As discussed 
further in the Corroboration Memorandum, the Department has received no 
information to date that warrants revisiting the issue of the 
reliability of the ``all-others'' rate calculation itself. Thus, the 
Department finds that the margin calculated in the LTFV investigation 
is reliable.
    With respect to the relevance aspect of corroboration, the 
Department will consider 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 margin and determine an 
appropriate margin. For example, in Fresh Cut Flowers from Mexico: 
Final Results of Antidumping Administrative Review, 61 FR 6812 
(February 22, 1996), the Department disregarded the highest margin in 
that case as adverse best information available (the predecessor to 
facts available) because the margin was based on another company's 
uncharacteristic business expense resulting in an unusually high 
margin. Similarly, the Department does not apply a margin that has been 
discredited. See D&L Supply Co. v. United States, 113 F. 3d 1220, 1221 
(Fed. Cir. 1997) (the Department will not use a margin that has been 
judicially invalidated). None of these unusual circumstances are 
present here. As there is no information on the record of this review 
that indicates that this rate is not relevant as AFA for Mittal Steel 
or MEI, we determine that this rate has probative value. Accordingly, 
we determine that the highest rate determined in any segment of this 
administrative proceeding (i.e., 75.04 percent) is in accord with 
section 776(c) of the Act's requirement that secondary information be 
corroborated (i.e., that it have probative value). For further 
explanation of the Department's corroboration methodology in this 
review, see Corroboration Memorandum.

Final Results of Review

    As a result of our review, we determine that the following margin 
based on AFA exists for the period of August 1, 2003, through July 31, 
2004:

------------------------------------------------------------------------
                                                            Margin
                      Producer                           (percentage)
------------------------------------------------------------------------
Mittal Steel Galati S.A............................                75.04
Metalexportimport S.A..............................                75.04
------------------------------------------------------------------------

Assessment

    The Department shall determine, and U.S. Customs and Border 
Protection (``CBP'') shall assess, antidumping duties on all 
appropriate entries. For Mittal Steel and MEI, we will instruct CBP to 
liquidate entries at the rate indicated above. The Department will 
issue appropriate assessment instructions directly to the CBP within

[[Page 7012]]

15 days of publication of these final results of review.

Cash Deposit Requirements

    Furthermore, the following deposit requirements will be effective 
upon publication of the final results of this administrative review for 
all shipments of certain cut-to-length plate from Romania entered, or 
withdrawn from warehouse, for consumption on or after the publication 
date of these final results, as provided by section 751(a) of the Act: 
(1) for the company covered by this review, the cash deposit rate will 
be the rate listed above; (2) for merchandise exported by producers or 
exporters not covered in this review but covered in the investigation, 
the cash deposit rate will continue to be the company-specific rate 
from the final determination; (3) if the exporter is not a firm covered 
in this review or the investigation, but the producer is, the cash 
deposit rate will be that established for the producer of the 
merchandise for the most recent period; and (4) if neither the exporter 
nor the producer is a firm covered in this review or the investigation, 
the cash deposit rate will be 75.04 percent, the ``Romania-wide'' rate 
established in the less-than-fair-value investigation. These deposit 
requirements shall remain in effect until publication of the final 
results of the next administrative review.
    This notice also serves as a final reminder to importers of their 
responsibility under 19 CFR 351.402 (f)(2) 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 in the subsequent 
assessment of double antidumping duties.
    This notice also is the only reminder to parties subject to 
administrative protective order (``APO'') of their responsibility 
concerning the return or destruction of proprietary information 
disclosed under APO in accordance with 19 CFR 351.305. Timely written 
notification of the 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.
    We are issuing and publishing these results and notice in 
accordance with sections 751(a)(1) and 777(i) of the Act.

    Dated: February 3, 2006.
David M. Spooner,
Assistant Secretary for Import Administration.
[FR Doc. E6-1880 Filed 2-9-06; 8:45 am]
BILLING CODE 3510-DS-S