[Federal Register Volume 74, Number 17 (Wednesday, January 28, 2009)]
[Notices]
[Pages 4913-4916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1827]
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DEPARTMENT OF COMMERCE
International Trade Administration
A-570-930
Circular Welded Austenitic Stainless Pressure Pipe from the
People's Republic of China: Final Determination of Sales at Less Than
Fair Value
AGENCY: Import Administration, International Trade Administration, U.S.
Department of Commerce.
EFFECTIVE DATE: January 28, 2009.
SUMMARY: The Department of Commerce (the Department) has determined
that circular welded austenitic stainless pressure pipe from the
People's Republic of China (PRC) is being, or is likely to be, sold in
the United States at less than fair value (LTFV), as provided in
section 733 of the Tariff Act of 1930, as amended (the Act). The final
dumping margins for this investigation are listed in the ``Final
Determination Margins'' section of this notice.
FOR FURTHER INFORMATION CONTACT: Melissa Blackledge or Howard Smith;
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW,
Washington, DC 20230; telephone: (202) 482-3518 and (202) 482-5193,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 5, 2008, the Department published in the Federal
Register its preliminary determination that circular welded austenitic
stainless pressure pipe from the PRC is being, or is likely to be, sold
in the United States at LTFV, as provided in the Act. See Circular
Welded Austenitic Stainless Pressure Pipe from the People's Republic of
China: Preliminary Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 73 FR 51788 (September 5, 2008)
(Preliminary Determination). For the Preliminary Determination, the
Department calculated a 22.03 percent dumping margin for mandatory
respondent Winner Machinery Enterprise Co., Ltd. (Winner) and assigned
that dumping margin to the PRC-wide entity and Zhejiang Jiuli Hi-Tech
Metals Co., Ltd. (Jiuli), a separate rate applicant.
The Department began its verification of Winner's information on
September 22, 2008. The verification was scheduled for September 22,
2008 through September 26, 2008. On September 25, 2008, Winner
terminated verification, requested that the verifiers not take copies
of any of the documents that were reviewed or presented at
verification, and submitted a letter to the Department stating that
Winner ``hereby withdraws from this antidumping investigation and does
not wish to further participate.'' See Winner's September 25, 2008
letter to the Department. The Department documented the events that
occurred at verification in a memorandum to the file dated October 3,
2008.
Petitioners\1\ and Winner submitted case briefs on October 22,
2008, and rebuttal briefs on October 27, 2008.
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\1\ Petitioners in this investigation are Bristol Metals, L.P.,
Felker Brothers Corp., Marcegaglia USA, Inc., Outokumpu Stainless
Pipe Inc., and the United Steel Workers of America (collectively,
Petitioners).
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Winner filed submissions containing new factual information on
October 16, 2008, November 28, 2008, and December 2, 2008. The
Department rejected Winner's November 28, 2008, and December 2, 2008
submissions on December 2, 2008 and December 4, 2008, respectively, as
untimely filed.
[[Page 4914]]
Period of Investigation
The period of investigation (POI) is July 1, 2007, through December
31, 2007. This period comprises the two most recently completed fiscal
quarters as of the month preceding the month in which the petition was
filed (i.e., January 2008). See 19 CFR 351.204(b)(1).
Scope of the Investigation
The merchandise covered by this investigation is circular welded
austenitic stainless pressure pipe not greater than 14 inches in
outside diameter. This merchandise includes, but is not limited to, the
American Society for Testing and Materials (ASTM) A-312 or ASTM A-778
specifications, or comparable domestic or foreign specifications. ASTM
A-358 products are only included when they are produced to meet ASTM A-
312 or ASTM A-778 specifications, or comparable domestic or foreign
specifications. Excluded from the scope are: (1) welded stainless
mechanical tubing, meeting ASTM A-554 or comparable domestic or foreign
specifications; (2) boiler, heat exchanger, superheater, refining
furnace, feedwater heater, and condenser tubing, meeting ASTM A-249,
ASTM A-688 or comparable domestic or foreign specifications; and (3)
specialized tubing, meeting ASTM A-269, ASTM A-270 or comparable
domestic or foreign specifications.
The subject imports are normally classified in subheadings
7306.40.5005; 7306.40.5040, 7306.40.5062, 7306.40.5064, and
7306.40.5085 of the Harmonized Tariff Schedule of the United States
(HTSUS). They may also enter under HTSUS subheadings 7306.40.1010;
7306.40.1015; 7306.40.5042, 7306.40.5044, 7306.40.5080, and
7306.40.5090. The HTSUS subheadings are provided for convenience and
customs purposes only, the written description of the scope of this
investigation is dispositive.
Changes since the Preliminary Determination
We have made the following changes to our analysis and the dumping
margins assigned in the Preliminary Determination:
1. We considered Winner to be part of the PRC-wide entity, and
revised the dumping margin that was assigned to the PRC-wide entity as
total adverse facts available (AFA).
2. We assigned Jiuli a separate rate based on an average of the
dumping margins used in the initiation of this investigation.
For a detailed discussion of the dumping margin assigned to the
PRC-wide entity as AFA, see ``Issues and Decision Memorandum for the
Final Determination in the Antidumping Duty Investigation of Circular
Welded Austenitic Stainless Pressure Pipe from the People's Republic of
China,'' dated January 21, 2009 (Decision Memorandum) which is hereby
adopted by this notice. For a detailed discussion of Jiuli's dumping
margin, see the ``Separate Rates'' section below.
Analysis of Comments Received
All issues raised in the case and rebuttal briefs by parties to
this proceeding, and to which we have responded, are addressed in the
Decision Memorandum. Appendix I to this notice contains a list of the
issues that are addressed in the Issues and Decision Memorandum.
Parties can find a complete discussion of the issues and corresponding
recommendations in this public memorandum, which is on file in the
Central Records Unit, Room 1117 of the main Commerce building. In
addition, a complete version of the Decision Memorandum can be accessed
directly on the Web at http://www.ia.ita.doc.gov/frn. The paper copy
and electronic version are identical in content.
Non-Market Economy Treatment
In the Preliminary Determination, the Department considered the PRC
to be a non-market economy (NME) country. See Preliminary
Determination, 73 FR at 51789. In accordance with section 771(18)(C)(i)
of the Act, any determination that a country is an NME country shall
remain in effect until revoked by the administering authority. See
Tapered Roller Bearings and Parts Thereof, Finished and Unfinished,
From the People's Republic of China: Preliminary Results of 2001-2002
Administrative Review and Partial Rescission of Review, 68 FR 7500
(February 14, 2003), unchanged in Tapered Roller Bearings and Parts
Thereof, Finished and Unfinished, from the People's Republic of China:
Final Results of 2001-2002 Administrative Review and Partial Rescission
of Review, 68 FR 70488 (December 18, 2003). No party has commented on
the Department's classification of the PRC as an NME country.
Therefore, for the final determination, we continue to consider the PRC
to be an NME country.
Separate Rates
In proceedings involving NME countries, the Department begins with
a rebuttable presumption that all companies within the country are
subject to government control and, thus, should be assigned a single
antidumping duty deposit rate. It is the Department's policy to assign
all exporters of merchandise subject to an investigation in an NME
country this single rate unless an exporter can demonstrate that it is
sufficiently independent so as to be entitled to a separate rate. See
Final Determination of Sales at Less Than Fair Value: Sparklers from
the People's Republic of China, 56 FR 20588 (May 6, 1991), as amplified
by Notice of Final Determination of Sales at Less Than Fair Value:
Silicon Carbide from the People's Republic of China, 59 FR 22585 (May
2, 1994), and 19 CFR 351.107(d).
In the Preliminary Determination, we found that Jiuli and Winner
demonstrated their eligibility for separate-rate status. See
Preliminary Determination, 73 FR at 51792. Since the publication of the
Preliminary Determination, no parties commented on the separate rate
determinations. We continue to find that the evidence placed on the
record of this investigation by Jiuli demonstrates both a de jure and
de facto absence of government control with respect to its exports of
the merchandise under investigation. Thus, we continue to find that
Jiuli is eligible for separate-rate status. However, as explained
below, we have determined that it is appropriate to apply total AFA to
Winner and deny the company a separate rate.
Normally the dumping margin for separate rate companies is
determined based on the estimated weighted-average dumping margins
established for exporters and producers individually investigated,
excluding de minimis margins or margins based entirely on AFA. See
section 735(c)(5)(A) of the Act. In the Preliminary Determination we
assigned Jiuli the dumping margin established for Winner, i.e., 22.03
percent. See Preliminary Determination, 73 FR at 51792 and 51795. Since
Winner is no longer receiving a separate rate, this methodology is not
appropriate. In cases where the estimated weighted-average dumping
margins for all individually investigated respondents are zero, de
minimis, or based entirely on AFA, the Department may use any
reasonable method to assign a rate to the separate rate companies. See
section 735(c)(5)(B) of the Act. In this case, where there are no
mandatory respondents receiving a calculated rate, we find that
applying the simple average of the initiation rates to Jiuli is both
reasonable and reliable for purposes of establishing a separate rate.
See Final Determination of Sales at Less Than Fair Value: Sodium
[[Page 4915]]
Hexametaphosphate From the People's Republic of China, 73 FR 6479
(February 4, 2008) and the accompanying Issues and Decision Memorandum
at Comment 2. Therefore, the Department will assign a separate rate to
Jiuli using the average of the initiation margins, pursuant to its
practice.
The average initiation margin assigned to Jiuli is based on
secondary information. According to section 776 (c) of the Act, when
the Department relies on secondary information, it shall, to the extent
practicable, corroborate that information. During our pre-initiation
analysis of the petition, we examined the information used in the
petition as the basis of export price and normal value (NV) and, where
appropriate, revised the calculations used to derive the petition
dumping margins in determining the initiation dumping margins. Also,
during our pre-initiation analysis, we examined information from
various independent sources provided either in the petition or, based
on our requests, in supplements to the petition, which corroborated
various elements of the export price and NV information. For this final
determination, we compared the average of the initiation margins to
Winner's highest CONNUM-specific margin and found that the average of
the initiation margins does not exceed this margin. No other
information was available for corroboration purposes. Based on the
foregoing, we have concluded that the average of the initiation dumping
margins is reliable and has probative value and, therefore, we consider
this average dumping margin to be corroborated, to the extent
practicable.
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, (B) fails to provide such information
by the deadlines for the 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 shall, subject
to section 782(d), use the facts otherwise available in reaching the
applicable determination. Because Winner withdrew from this proceeding
during verification, we determine that the use of facts otherwise
available is warranted with respect to Winner. See the Decision
Memorandum at Comment 1.
Section 776(b) of the Act provides 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,'' the
Department may draw an inference that is adverse to the interests of
that party in selecting information from the petition, the final
determination from the investigation, a previous administrative review,
or any information placed on the record. The Statement of
Administrative Action (SAA) accompanying the Uruguay Round Agreements
Act, H.R. Doc. 103-316, Vol. 1 (1994) at 870, reflects the Department's
practice that it may employ an adverse inference ``to ensure that the
party does not obtain a more favorable result by failing to cooperate
fully.'' It also instructs the Department to consider, in employing
adverse inferences, ``the extent to which a party may benefit from its
own lack of cooperation.'' Id.
By withdrawing from verification, Winner has failed to cooperate to
the best of its ability. Therefore, we find it appropriate to use an
inference that is adverse to Winner's interest in selecting from among
facts otherwise available. By doing so, we ensure that Winner will not
obtain a more favorable rate by failing to cooperate. For a complete
discussion of our analysis, see the Decision Memorandum at Comment 1.
Moreover, because Winner withdrew from verification and prevented
the Department from verifying its responses with regard to separate
rate status, the Department has no basis upon which to grant Winner a
separate rate. Thus, although Winner remains a mandatory respondent,
the Department, as AFA, is considering Winner to be part of the PRC-
wide entity.
The PRC-Wide Rate
In the Preliminary Determination, the Department found that certain
companies did not respond to our requests for information. See
Preliminary Determination, 73 FR at 51788. We treated these PRC
producers/exporters as part of the PRC-wide entity because they did not
demonstrate that they operate free of government control over their
export activities. Id. No additional information was placed on the
record with respect to any of these companies after the Preliminary
Determination. Moreover, for the reasons noted above, we also consider
Winner to be part of the PRC-wide entity.
As noted above, section 776(a)(2) of the Act provides that, if an
interested party or any other person withholds information that has
been requested by the administering authority, significantly impedes a
proceeding under this title, or provides such information but the
information cannot be verified as provided in section 782(i), the
administering authority shall, subject to section 782(d), use the facts
otherwise available in reaching the applicable determination. Since
companies within the PRC-wide entity withheld information requested by
the Department, and Winner, which is part of the PRC-wide entity, did
not allow its information to be verified, pursuant to sections
776(a)(2)(A), (C), and (D) of the Act, we determine, as in the
Preliminary Determination, that the use of facts otherwise available is
appropriate to determine the PRC-wide rate.
As stated above, section 776(b) of the Act provides that, in
selecting from among the facts otherwise available, the Department may
employ an adverse inference if an interested party fails to cooperate
by not acting to the best of its ability to comply with requests for
information. See Notice of Final Determination of Sales at Less Than
Fair Value: Certain Cold-Rolled Flat-Rolled Carbon-Quality Steel
Products From the Russian Federation, 65 FR 5510, 5518 (February 4,
2000). See also SAA at 870 (1994). We determine that, because the PRC-
wide entity did not respond to our requests for information, and Winner
prevented the Department from verifying its information, the PRC-wide
entity has failed to cooperate to the best of its ability. Therefore,
the Department finds that, in selecting a dumping margin from among the
facts otherwise available, an adverse inference is appropriate for the
PRC-wide entity.
In this final determination, we have assigned to the PRC-wide
entity the highest CONNUM-specific calculated dumping margin, i.e.,
55.21 percent. See Decision Memorandum. No corroboration of this rate
is necessary because we are relying on information obtained in the
course of this investigation, rather than secondary information.
Since we begin with the presumption that all companies within an
NME country are subject to government control, and because only Jiuli
has overcome that presumption, we are applying the single antidumping
rate (i.e., the PRC-wide entity rate) identified above to all entries
of subject merchandise, except for entries from Jiuli. Other than
Jiuli, none of the other exporters of subject merchandise from the PRC
demonstrated entitlement to a separate rate. See, e.g., Synthetic
Indigo From the People's Republic of China:
[[Page 4916]]
Notice of Final Determination of Sales at Less Than Fair Value, 65 FR
25706 (May 3, 2000).
Combination Rates
In Circular Welded Austenitic Stainless Pressure Pipe from the
People's Republic of China: Initiation of Antidumping Duty
Investigation, 73 FR 10221 (February 26, 2008) (Initiation Notice), the
Department stated that it would calculate combination rates for
respondents that are eligible for a separate rate in this
investigation. See Initiation Notice. This change in practice is
described in Policy Bulletin 05.1, available at http://ia.ita.doc.gov/.
Policy Bulletin 05.1, states:
{w{time} hile continuing the practice of assigning separate rates
only to exporters, all separate rates that the Department will now
assign in its NME investigations will be specific to those producers
that supplied the exporter during the period of investigation. Note,
however, that one rate is calculated for the exporter and all of the
producers which supplied subject merchandise to it during the period of
investigation. This practice applies both to mandatory respondents
receiving an individually calculated separate rate as well as the pool
of non-investigated firms receiving the weighted-average of the
individually calculated rates. This practice is referred to as the
application of ``combination rates'' because such rates apply to
specific combinations of exporters and one or more producers. The cash-
deposit rate assigned to an exporter will apply only to merchandise
both exported by the firm in question and produced by a firm that
supplied the exporter during the period of investigation.
See Policy Bulletin 05.1, ``Separate Rates Practice and Application of
Combination Rates in Antidumping Investigations Involving Non-Market
Economy Countries.''
Final Determination Margins
We determine that the following percentage dumping margins exist
for the POI:
------------------------------------------------------------------------
Margin
Manufacturer/Exporter (Percent)
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Zhejiang Jiuli Hi-Tech Metals Co., Ltd. Produced by: 10.53[perc
Zhejiang Jiuli Hi-Tech Metals Co., Ltd..................... nt]
PRC-Wide Rate............................................... 55.21[perc
nt]
------------------------------------------------------------------------
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, we will
instruct U.S. Customs and Border Protection (CBP) to continue to
suspend liquidation of all entries of circular welded austenitic
stainless pressure pipe from the PRC, as described in the ``Scope of
Investigation'' section, entered, or withdrawn from warehouse, for
consumption on or after September 5, 2008, the date of publication of
the Preliminary Determination in the Federal Register. We will instruct
CBP to require a cash deposit or the posting of a bond equal to the
weighted-average dumping margin amount by which the NV exceeds U.S.
price, as follows: (1) The rate for the exporter/producer combination
listed in the chart above will be the rate we have determined in this
final determination; (2) for all PRC exporters of subject merchandise
which have not received their own rate, the cash-deposit rate will be
the PRC-wide entity rate; and (3) for all non-PRC exporters of subject
merchandise which have not received their own rate, the cash-deposit
rate will be the rate applicable to the PRC exporter/producer
combination that supplied that non-PRC exporter. These suspension-of-
liquidation instructions will remain in effect until further notice.
International Trade Commission Notification
In accordance with section 735(d) of the Act, we have notified the
International Trade Commission (ITC) of our final determination of
sales at LTFV. As our final determination is affirmative, in accordance
with section 735(b)(2) of the Act, within 45 days the ITC will
determine whether the domestic industry in the United States is
materially injured, or threatened with material injury, by reason of
imports or sales (or the likelihood of sales) for importation of the
subject merchandise. If the ITC determines that material injury or
threat of material injury does not exist, the proceeding will be
terminated and all securities posted will be refunded or canceled. If
the ITC determines that such injury does exist, the Department will
issue an antidumping duty order directing CBP to assess, upon further
instruction by the Department, 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 APO
This notice also serves as a reminder to the parties subject to
administrative protective order (APO) of their responsibility
concerning the disposition of proprietary information disclosed under
APO in accordance with 19 CFR 351.305. Timely notification of return or
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: January 21, 2009.
Ronald K. Lorentzen,
Acting Assistant Secretaryfor Import Administration.
Appendix I
List of Issues
Comment 1: Whether, as Adverse Facts Available for the PRC-Wide Entity,
the Department Should Use the Petition, Initiation, or Preliminary
Determination Margins, and Whether Those Margins Should be Adjusted
Using Thai, Instead of Indian, Surrogate Values
[FR Doc. E9-1827 Filed 1-27-09; 8:45 am]
BILLING CODE 3510-DS-S