Notice of Preliminary Determination of Sales at Less Than Fair Value: Superalloy Degassed Chromium from Japan, 48538-48541 [E5-4515]
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48538
Federal Register / Vol. 70, No. 159 / Thursday, August 18, 2005 / Notices
Signed at Washington, DC, this 4th day of
August 2005.
Joseph A. Spetrini,
Acting Assistant Secretary of Commercefor
Import Administration, Alternate Chairman,
Foreign–Trade Zones Board.
Attest:
Dennis Puccinelli,
Executive Secretary.
[FR Doc. 05–16402 Filed 8–17–05; 8:45 am]
BILLING CODE 3510–DS–S
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
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:
AGENCY:
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.
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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 E1 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
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 homemarket 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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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.
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?
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
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Federal Register / Vol. 70, No. 159 / Thursday, August 18, 2005 / Notices
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
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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
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48539
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
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Federal Register / Vol. 70, No. 159 / Thursday, August 18, 2005 / Notices
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
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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:
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Manufacturer or Exporter
Weighted–Average
Margin (percent)
JFE Material Co., Ltd. ..
All Others ......................
129.32
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.
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Federal Register / Vol. 70, No. 159 / Thursday, August 18, 2005 / Notices
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
DEPARTMENT OF COMMERCE
International Trade Administration
[Docket No.: 050808218–5218–01]
Effect of the Propane Education and
Research Council’s Operation, Market
Changes and Federal Programs on
Propane Consumers
International Trade
Administration, Department of
Commerce.
ACTION: Notice of inquiry.
AGENCY:
SUMMARY: The Department of Commerce
(the Department) is seeking public
comment on whether the operation of
the Propane Education and Research
Council (PERC), in conjunction with the
cumulative effects of market changes
and Federal programs, has had an effect
on residential, agricultural, process and
nonfuel users of propane. This notice of
inquiry is part of an effort to collect
information to fulfill requirements
under the Propane Education and
Research Act of 1996 that established
PERC and requires the Secretary of
Commerce to assess the impact of
PERC’s activities on propane
consumers.
DATES: Comments on this notice must be
submitted on or before September 19,
2005.
ADDRESSES: You may submit comments
by any of the following methods:
E-mail: Shannon_Fraser@ita.doc.gov.
Include the phrase ‘‘Propane Price
Impacts on Consumers’’ in the subject
line;
Fax: (202) 482–0170 (Attn: Shannon
Fraser);
Mail or Hand Delivery/Courier:
Shannon Fraser, U.S. Department of
Commerce, 14th Street & Constitution
Ave., NW., Suite 4053, Washington, DC
20230.
FOR FURTHER INFORMATION CONTACT: For
questions on the submission of
comments or to request copies of
submitted comments, contact Shannon
Fraser by telephone at (202) 482–3609,
or e-mail at
Shannon_Fraser@ita.doc.gov.
SUPPLEMENTARY INFORMATION: The
Propane Education and Research Act of
1996 (Pub. L. 104–284) established the
Propane Education and Research
Council to enhance consumer and
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Jkt 205001
employee safety and training, to provide
for research and development of clean
and efficient propane utilization
equipment, and to inform and educate
the public about safety and other issues
associated with the use of propane.
Section 12 of the Act requires the
Secretary of Commerce to prepare and
submit to Congress and the Secretary of
Energy a report examining whether
operation of the Council, in conjunction
with the cumulative effects of market
changes and Federal programs, has had
an effect on propane consumers,
including residential, agriculture,
process, and nonfuel users of propane.
The Secretary of Commerce shall
consider and, to the extent practicable,
shall include in the report submissions
by propane consumers, and shall
consider whether: (1) There have been
long-term and short-term effects on
propane prices as a result of the
Council’s activities and Federal
programs; and (2) whether there have
been changes in the proportion of
propane demand attributable to various
market segments. If the Secretary of
Commerce concludes that there has
been an adverse effect related to the
Council’s activities, the Secretary of
Commerce shall make recommendations
for correcting the situation.
In order to assist in the preparation of
this study, the Department is seeking
public comment on the effect of PERC’s
operation, market changes and Federal
programs on propane consumers. For
information on the operation and
programs of PERC, you may visit PERC’s
Web site at https://
www.propanecouncil.org or call PERC at
(202) 452–8975.
The Department encourages interested
persons who wish to comment to do so
at the earliest possible time. The period
for submission of comments will close
on September 19, 2005. The Department
will consider all comments received
before the close of the comment period.
Comments received after the end of the
comment period will be considered if
possible, but their consideration cannot
be assured. The Department will not
accept comments accompanied by a
request that a part or all of the material
be treated confidentially because of its
business proprietary nature or for any
other reason. The Department will
return such comments and materials to
the persons submitting the comments
and will not consider them. All
comments submitted in response to this
notice will be a matter of public record
and will be available for public
inspection and copying. All comments
must be submitted to the Department
through one of the methods listed under
ADDRESSES.
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48541
The office does not maintain a
separate public inspection facility. If
you would like to view any comments
received in response to this solicitation,
please contact the individual listed in
FOR FURTHER INFORMATION CONTACT.
Joseph Bogosian,
Deputy Assistant Secretary for
Manufacturing.
[FR Doc. E5–4514 Filed 8–17–05; 8:45 am]
BILLING CODE 3510–DR–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[I.D. 061405A]
Taking Marine Mammals Incidental to
Specified Activities; Port Sutton
Navigation Channel, Tampa Bay, FL
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of receipt of application
and proposed authorization for an
incidental take authorization; request
for comments.
AGENCY:
SUMMARY: NMFS has received a request
from the U.S. Army Corps of EngineersJacksonville District (Corps) for
authorizations to take marine mammals,
by harassment, incidental to expanding
and deepening the Port Sutton
Navigation Channel in Tampa Harbor,
FL (Port Sutton project). Under the
Marine Mammal Protection Act
(MMPA), NMFS is requesting comments
on its proposal to issue a 1–year
Incidental Harassment Authorization
(IHA) to the Corps to incidentally take,
by harassment, bottlenose dolphins
(Tursiops truncatus) as a result of
conducting this activity and the Corps’
application for regulations.
DATES: Comments and information must
be received no later than September 19,
2005.
ADDRESSES: Comments on the
application should be addressed to
Steve Leathery, Chief, Permits,
Conservation and Education Division,
Office of Protected Species, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, Md
20910. The mailbox address for
providing e-mail comments on this
action is PR1.061405A@noaa.gov.
Comments sent via email, including all
attachments, must not exceed a 10–
megabyte file size. A copy of the
application containing a list of
references used in this document may
be obtained by writing to the address
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]]>Agencies
[Federal Register Volume 70, Number 159 (Thursday, August 18, 2005)]
[Notices]
[Pages 48538-48541]
From the Federal Register Online via the Government Printing 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
