Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: Preliminary Results of Changed Circumstances Review, 54019-54023 [E5-5000]
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Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Notices
deepwater project; (3) rated for a
specified minimum yield strength
of not less than 60,000 psi; and (4)
not identified or certified through
the use of a monogram, stencil, or
otherwise marked with an API
specification (e.g., ‘‘API 5L’’).
With regard to the excluded products
listed above, the Department will not
instruct U.S. Customs and Border
Protection to require end–use
certification until such time as
petitioner or other interested parties
provide to the Department a reasonable
basis to believe or suspect that the
products are being utilized in a covered
application. If such information is
provided, the Department will require
end–use certification only for the
product(s) (or specification(s)) for which
evidence is provided that such products
are being used in a covered application
as described above. For example, if,
based on evidence provided by
petitioner, the Department finds a
reasonable basis to believe or suspect
that seamless pipe produced to the A–
335 specification is being used in an A–
106 application, it will require end–use
certifications for imports of that
specification. Normally, the Department
will require only the importer of record
to certify to the end–use of the imported
merchandise. If it later proves necessary
for adequate implementation, the
Department may also require producers
who export such products to the United
States to provide such certification on
invoices accompanying shipments to
the United States.
Although the HTSUS subheadings are
provided for convenience and customs
purposes, the written description of the
merchandise subject to this scope is
dispositive.
Rescission of Fourth Administrative
Review
On May 6, 2005, the Department
published in the Federal Register its
intent to rescind the administrative
review. See Certain Large Diameter
Carbon and Alloy Seamless Standard,
Line and Pressure Pipe: Notice to Intent
to Rescind Administrative Review, 70
FR 23988 (May 6, 2005). In that notice
we stated that, based on our shipment
data query and examination of entry
documents, (see Memorandum dated
February 24, 2005, entitled ‘‘Request for
U.S. Entry Documents–Certain Large
Diameter Carbon and Alloy Seamless
Standard, Line and Pressure Pipe from
Mexico, Customs Case Number A–201–
827’’ and Memorandum dated April 14,
2005, entitled ‘‘Memorandum to File:
Customs Data Entry Results’’) we should
treat TAMSA as a non–shipper and, in
accordance with section 351.213(d)(3) of
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the Department’s regulations, rescind
this review. We invited interested
parties to comment on our intent to
rescind the administrative review. No
comments were submitted.
Consequently, the Department
continues to treat TAMSA as a non–
shipper for the purpose of this review.
Therefore, in accordance with section
351.213(d)(3) of the Department’s
regulations, and consistent with our
practice, we are rescinding this review
because TAMSA was the only company
for which a review was requested and
we have determined that TAMSA did
not have entries of subject merchandise
manufactured, produced or exported by
TAMSA during the POR. See, e.g.,
Polychloroprene Rubber from Japan:
Notice of Rescission of Antidumping
Duty Administrative Review, 66 FR
45005 (August 27, 2001).
We are issuing this notice is in
accordance with section 751(a)(1) of the
Tariff Act of 1930, as amended, and
section 351.213(d) of the Department’s
regulations.
Dated: September 6, 2005.
Barbara E. Tillman,
Acting Deputy Assistant Secretary for Import
Administration.
[FR Doc. E5–4975 Filed 9–12–05; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
International Trade Administration
[A–588–837]
Large Newspaper Printing Presses and
Components Thereof, Whether
Assembled or Unassembled, From
Japan: Preliminary Results of Changed
Circumstances Review
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On May 10, 2005, the
Department of Commerce (the
Department) self-initiated a changed
circumstances review to consider
information contained in a recent
Federal court decision, Goss
International Corp. v. Tokyo Kikai
Seisakusho, Ltd., 321 F.Supp.2d 1039
(N.D. Iowa 2004) (Goss Int’l). As
detailed in our ‘‘Notice of Initiation of
the Changed Circumstances Review,’’
evidence was presented in that court
proceeding demonstrating that Tokyo
Kikai Seisakusho, Ltd. (TKS)
intentionally provided false information
regarding its sale to the Dallas Morning
News (DMN), the subject of the
Department’s 1997–1998 administrative
review. After consideration of
AGENCY:
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54019
comments and information provided for
this review, we preliminarily determine
that it is appropriate to take the
following course of action in order to
protect the integrity of the Department’s
proceedings: (1) Revise TKS’ margin for
the 1997–1998 review to apply a rate of
59.67 percent based on adverse facts
available; (2) rescind the revocation of
the antidumping duty order for TKS
because TKS no longer qualifies for
revocation based on three consecutive
administrative reviews resulting in zero
dumping margins; and (3) reconsider
the revocation of the order under the
sunset review provision of the statute
(section 751(c) of the Tariff Act of 1930,
as amended (the Act)). If these
preliminary results are confirmed in the
final results, the Department will revise
TKS’ margin for the 1997–1998 review,
rescind the revocation of the
antidumping duty order for TKS, and
initiate a new sunset review to
reconsider the revocation of this order.
Interested parties are invited to
comment on these preliminary results.
EFFECTIVE DATE: September 13, 2005.
FOR FURTHER INFORMATION CONTACT:
David Goldberger or Kate Johnson,
Import Administration, International
Trade Administration, U.S. Department
of Commerce, 14th Street and
Constitution Avenue, NW., Washington,
DC 20230; telephone (202) 482–4136
and (202) 482–4929, respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 4, 1996, the
Department published in the Federal
Register an amended final
determination and antidumping duty
order on large newspaper printing
presses and components thereof,
whether assembled or unassembled,
from Japan (LNPPs) (61 FR 46621)
(Amended Final and Order). One of the
producers/exporters covered by the
order was TKS. Its rate from the lessthan-fair-value investigation was 56.28
percent. The Department conducted
administrative reviews of TKS for the
following periods: September 1, 1997–
August 31, 1998, September 1, 1998–
August 31, 1999, and September 1,
1999–August 31, 2000. The
administrative review for the 2000–2001
review period was rescinded. A zero
margin was found for TKS in the 1997–
1998, 1998–1999, and 1999–2000
review periods. On January 16, 2002,
the antidumping duty order was
revoked with respect to TKS (see Large
Newspaper Printing Presses and
Components Thereof, Whether
Assembled or Unassembled, From
Japan: Final Results of Antidumping
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Duty Administrative Review and
Revocation in Part, 67 FR 2190) based
on the three consecutive reviews
resulting in zero dumping margins (see
19 CFR 351.222(b)). On February 25,
2002, the Department revoked the
antidumping duty order under a fiveyear sunset review pursuant to section
751(c)(3)(A) of the Act because the only
domestic interested party in the sunset
review, Goss International Corporation
(Goss), withdrew its participation and
thus its interest in the review. See Large
Newspaper Printing Presses and
Components Thereof, Whether
Assembled or Unassembled, from Japan
(A–588–837) and Germany (A–428–821):
Notice of Final Results of Five-Year
Sunset Reviews and Revocation of
Antidumping Duty Orders, 67 FR 8522
(February 25, 2002).
On May 5, 2005, the Department selfinitiated a changed circumstances
review to consider information
contained in a recent Federal court
decision, Goss Int’l. See Large
Newspaper Printing Presses and
Components Thereof, Whether
Assembled or Unassembled, from Japan:
Initiation of Changed Circumstances
Review, 70 FR 24524 (May 10, 2005). In
that court proceeding, evidence was
presented demonstrating that TKS
provided false information regarding its
sale to the DMN, the sale that was the
subject of the Department’s 1997–1998
administrative review. The Department
placed the Goss Int’l decision and
documents from the Goss Int’l record on
the public record of this changed
circumstances review in separate
memoranda.
On June 9, 2005, Goss, TKS, and
Mitsubishi Heavy Industries, Ltd. (MHI)
provided comments in response to the
Department’s request for comments in
the notice of initiation of this changed
circumstances review. Goss’ comments
included documents from the Goss Int’l
record and from the Department’s
administrative reviews of the
antidumping duty order. On June 20,
2005, Goss and TKS provided comments
in response to the parties’ respective
June 9, 2005, comments.
On July 19, 2005, TKS requested that
the Department seek further information
about Goss’ claim that it is currently a
domestic manufacturer of LNPPs. Goss
responded to TKS’ letter in an August
11, 2005, submission.
Scope of the Changed Circumstances
Review
The products covered by this changed
circumstances review are large
newspaper printing presses, including
press systems, press additions and press
components, whether assembled or
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unassembled, whether complete or
incomplete, that are capable of printing
or otherwise manipulating a roll of
paper more than two pages across. A
page is defined as a newspaper
broadsheet page in which the lines of
type are printed perpendicular to the
running of the direction of the paper or
a newspaper tabloid page with lines of
type parallel to the running of the
direction of the paper.
In addition to press systems, the
scope of the review includes the five
press system components. They are: (1)
a printing unit, which is any component
that prints in monocolor, spot color
and/or process (full) color; (2) a reel
tension paster (RTP), which is any
component that feeds a roll of paper
more than two newspaper broadsheet
pages in width into a subject printing
unit; (3) a folder, which is a module or
combination of modules capable of
cutting, folding, and/or delivering the
paper from a roll or rolls of newspaper
broadsheet paper more than two pages
in width into a newspaper format; (4)
conveyance and access apparatus
capable of manipulating a roll of paper
more than two newspaper broadsheet
pages across through the production
process and which provides structural
support and access; and (5) a
computerized control system, which is
any computer equipment and/or
software designed specifically to
control, monitor, adjust, and coordinate
the functions and operations of large
newspaper printing presses or press
components.
A press addition is comprised of a
union of one or more of the press
components defined above and the
equipment necessary to integrate such
components into an existing press
system.
Because of their size, large newspaper
printing press systems, press additions,
and press components are typically
shipped either partially assembled or
unassembled, complete or incomplete,
and are assembled and/or completed
prior to and/or during the installation
process in the United States. Any of the
five components, or collection of
components, the use of which is to
fulfill a contract for large newspaper
printing press systems, press additions,
or press components, regardless of
degree of assembly and/or degree of
combination with non-subject elements
before or after importation, is included
in the scope of this review. Also
included in the scope are elements of a
LNPP system, addition or component,
which taken altogether, constitute at
least 50 percent of the cost of
manufacture of any of the five major
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LNPP components of which they are a
part.
For purposes of the review, the
following definitions apply irrespective
of any different definition that may be
found in customs rulings, U.S. Customs
law or the Harmonized Tariff Schedule
of the United States (HTSUS): (1) the
term ‘‘unassembled’’ means fully or
partially unassembled or disassembled;
and (2) the term ‘‘incomplete’’ means
lacking one or more elements with
which the LNPP is intended to be
equipped in order to fulfill a contract for
a LNPP system, addition or component.
This scope does not cover spare or
replacement parts. Spare or replacement
parts imported pursuant to a LNPP
contract, which are not integral to the
original start-up and operation of the
LNPP, and are separately identified and
valued in a LNPP contract, whether or
not shipped in combination with
covered merchandise, are excluded from
the scope of this review. Used presses
are also not subject to this scope. Used
presses are those that have been
previously sold in an arm’s-length
transaction to a purchaser that used
them to produce newspapers in the
ordinary course of business.
Also excluded from the scope, in
accordance with the Department’s
determination in a previous changed
circumstances review of the
antidumping duty order which resulted
in the partial revocation of the order
with respect to certain merchandise, are
elements and components of LNPP
systems, and additions thereto, which
feature a 22-inch cut-off, 50-inch web
width and a rated speed no greater than
75,000 copies per hour. See Large
Newspaper Printing Presses
Components Thereof, Whether
Assembled or Unassembled, from Japan:
Final Results of Changed Circumstances
Antidumping Duty Administrative
Review and Intent to Revoke
Antidumping Duty Order, In Part, 64 FR
72315 (December 27, 1999). In addition
to the specifications set out in this
paragraph, all of which must be met in
order for the product to be excluded
from the scope of the review, the
product must also meet all of the
specifications detailed in the five
numbered sections following this
paragraph. If one or more of these
criteria is not fulfilled, the product is
not excluded from the scope of the
review.
1. Printing Unit: A printing unit
which is a color keyless blanket-toblanket tower unit with a fixed gain
infeed and fixed gain outfeed, with a
rated speed no greater than 75,000
copies per hour, which includes the
following features:
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Each tower consisting of four levels,
one or more of which must be
populated.
Plate cylinders which contain slot
lock-ups and blanket cylinders which
contain reel rod lock-ups both of which
are of solid carbon steel with nickel
plating and with bearers at both ends
which are configured in-line with
bearers of other cylinders.
Keyless inking system which consists
of a passive feed ink delivery system, an
eight roller ink train, and a non-anilox
and non-porous metering roller.
The dampener system which consists
of a two nozzle per page spraybar and
two roller dampener with one chrome
drum and one form roller.
The equipment contained in the color
keyless ink delivery system is designed
to achieve a constant, uniform feed of
ink film across the cylinder without ink
keys. This system requires use of
keyless ink which accepts greater water
content.
2. Folder: A module which is a double
3:2 rotary folder with 160 pages collect
capability and double (over and under)
delivery, with a cut-off length of 22
inches. The upper section consists of
three-high double formers (total of 6)
with six sets of nipping rollers.
3. RTP: A component which is of the
two-arm design with core drives and
core brakes, designed for 50 inch
diameter rolls; and arranged in the press
line in the back-to-back configuration
(left and right hand load pairs).
4. Conveyance and Access Apparatus:
Conveyance and access apparatus
capable of manipulating a roll of paper
more than two newspaper broadsheets
across through the production process,
and a drive system which is of
conventional shafted design.
5. Computerized Control System: A
computerized control system, which is
any computer equipment and/or
software designed specifically to
control, monitor, adjust, and coordinate
the functions and operations of large
newspaper printing presses or press
components.
Further, this review covers all current
and future printing technologies capable
of printing newspapers, including, but
not limited to, lithographic (offset or
direct), flexographic, and letterpress
systems. The products covered by this
review are imported into the United
States under subheadings 8443.11.10,
8443.11.50, 8443.30.00, 8443.59.50,
8443.60.00, and 8443.90.50 of the
HTSUS. Large newspaper printing
presses may also enter under HTSUS
subheadings 8443.21.00 and 8443.40.00.
Large newspaper printing press
computerized control systems may enter
under HTSUS subheadings 8471.49.10,
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8471.49.21, 8471.49.26, 8471.50.40,
8471.50.80, and 8537.10.90. Although
the HTSUS subheadings are provided
for convenience and customs purposes,
our written description of the scope of
the review is dispositive.
Use of Facts Otherwise Available
As noted above in the ‘‘Background’’
section, the Department has examined
documents from Goss Int’l and from the
1997–1998 administrative review, all of
which have been placed on the record
of this review, and has determined that
TKS provided false information in the
context of the 1997–1998 administrative
review.
Information on the record of this
changed circumstances review clearly
demonstrates that TKS granted DMN a
$1 million rebate and credits for spare
parts tied to the sale reviewed, yet it did
not disclose this information in its
questionnaire responses submitted in
the 1997–1998 administrative review.
TKS was specifically asked in the
questionnaire issued in the 1997–1998
administrative review whether it had
granted any discounts or rebates in
connection with the subject sale. TKS
unequivocally stated that ‘‘TKS did not
provide any discounts to the contract
price,’’ and ‘‘TKS did not provide any
rebates to the contract price.’’ See pages
16 and 17, respectively, of the March 29,
1999, Section C response (included on
the record of this review as an
attachment to the Memorandum to the
File dated August 23, 2005, which also
includes the certifications from the
responsible TKS official and TKS’
counsel that the information in the
response was accurate and complete).
The changed circumstances review
record shows that TKS did in fact grant
rebates and credits for additional
supplies but intentionally failed to
disclose them. Specifically, TKS’
undisclosed rebate to the DMN is
documented in fax correspondence
between TKS and its U.S. affiliate
included as Exhibits 23 and 26 in
Volume III of Goss’ June 9, 2005,
submission; DMN’s invoice to TKS for
the $1 million, included as Exhibit 27
in Volume III of Goss’ June 9, 2005,
submission; and TKS’ application for a
telegraphic transfer of funds, included
as Attachment 30 of the Department’s
May 5, 2005, Memorandum to the File
(May Memo) (also in Exhibit 28 of
Volume III of Goss’ June 9, 2005,
submission). This payment is also
discussed in two memoranda and a
deposition by the DMN’s production
manager (Exhibit 31 in Volume III of
Goss’ June 9, 2005, submission, and
Attachments 34 and 41, respectively, of
the May Memo), and in a deposition by
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a former TKS official now at the DMN
(Attachment 40 of the May Memo). In
the same May Memo depositions, the
DMN officials also attest to a total of
$1.2 million of credits granted to the
DMN in consideration of the LNPP sale
to the DMN. See, also, Goss’ discussion
of the payment and credits at Volume I,
page 5, and Volume II, pages 5–6 of its
June 9, 2005, submission, as well as
Goss Int’l at pages 8–9.
Because TKS did not provide accurate
and complete information in its
questionnaire responses, we
preliminarily determine that the
application of facts available is
appropriate, pursuant to section
776(a)(2) of the Act. 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 under this title.’’
Once we determine that the use of
facts available is warranted, section
776(b) of the Act permits the
Department to determine whether the
application of an adverse inference is
also warranted. In making this
additional determination, the
Department may find that ‘‘[a
respondent] has failed to cooperate by
not acting to the best of its ability to
comply with a request for information.’’
See section 776(b) of the Act.
As discussed above, a comparison of
the Goss Int’l documents and the record
from the 1997–1998 review indicates
that TKS failed to disclose its rebate and
credit arrangements associated with its
sale to the DMN, TKS’ sole sale in the
1997–1998 review, and falsely reported
to the Department that no such rebate or
credits existed. The Department is
reexamining TKS’ margin in the 1997–
1998 review in the context of this
changed circumstances review pursuant
to its inherent authority to protect the
integrity of its proceedings. As a general
matter, an agency may act to protect the
integrity of its proceedings. See Elkem
Metals Co. v. United States, 193 F.
Supp. 2d 1314 (CIT 2002) (Elkem
Metals); Alberta Gas Chemicals, Ltd. v.
Celanese Corp., 650 F.2d 9, 12–13 (2d
Cir. 1981); Touche Ross & Co. v. SEC,
609 F.2d 570, 582 (D.C. Cir. 1979). In
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Elkem Metals, the Court of International
Trade (CIT) affirmed the International
Trade Commission’s (ITC’s) reopening
of an affirmative injury determination
on ferrosilicon from various countries
because of fraudulent activity, even
though the ITC did not have explicit
statutory authority to do so. In the
reopened investigation, the ITC reversed
its final affirmative determination of
injury after foreign producers petitioned
to reopen the investigation; the foreign
producers had based their petition on a
‘‘recently disclosed price-fixing
conspiracy among some domestic
manufacturers, and its consequent
distortion of the price data presented to
the ITC during its original material
injury investigations.’’ See Elkem
Metals, 193 F. Supp.2d at 1317. This
instant proceeding is similar to Elkem
Metals because a Federal court has
determined that TKS concealed rebates
and other relevant information affecting
the sales price information reported to
the Department in the context of the
antidumping duty review, and because,
upon the Department’s own
examination of the documents, as
discussed above, the Department
determines that TKS failed to disclose
requested information and provided
false statements to the Department about
the DMN sale. There was only one sale
examined in the 1997–1998 review;
therefore, false and incomplete
information about the DMN sale
discredits the findings of the entire
review.
Because TKS provided false and
incomplete information in the context of
its only sale in the 1997–1998
administrative review, we find that, in
accordance with sections 776(a)(2)(A)
and (C) of the Act, the use of total facts
available is appropriate. See, e.g.,
Freshwater Crawfish Tail Meat From the
People’s Republic of China: Notice of
Final Results of Antidumping Duty
Administrative Review and Final
Rescission of Review, in Part, 69 FR
7193 (February 13, 2004) and
accompanying Issues and Decision
Memorandum at Comment 2
(Freshwater Crawfish Tail Meat Decision
Memo) (aff’d Shanghai Taoen Int’l
Trading Co. v. United States, No. 04–
00125, Slip. Op. 05–22 (CIT Feb. 17,
2005)); Notice of Final Determination of
Sales at Less Than Fair Value and Final
Negative Critical Circumstances: Carbon
and Certain Alloy Steel Wire Rod from
Brazil, 67 FR 55792, 55794 (August 30,
2002); Porcelain-on-Steel Cooking Ware
from the People’s Republic of China;
Final Results of Antidumping
Administrative Review, 62 FR 32757,
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16:06 Sep 12, 2005
Jkt 205001
32761, at Comment 8 (June 17, 1997)
(Porcelain-on-Steel Cooking Ware).
Moreover, TKS’ failure to provide
accurate and complete information
about the DMN sale, along with its false
statement in its questionnaire response
concerning rebates and other
concessions to price, demonstrate that
TKS did not respond truthfully and
completely to the Department’s requests
for information. Accordingly, TKS did
not act to the best of its ability as
required by section 776(b) of the Act.
Consequently, we have made an adverse
inference in determining a dumping
margin for TKS. See Porcelain-on-Steel
Cooking Ware, 62 FR at 32761;
Freshwater Crawfish Tail Meat Decision
Memo at Comment 2.
Section 776(b) of the Act authorizes
the Department to use as adverse facts
available (AFA) information derived
from the petition, the final
determination from the less-than-fairvalue (LTFV) investigation, a previous
administrative review, or any other
information placed on the record. As
AFA, we have preliminarily assigned to
TKS the rate of 59.67 percent, which is
the rate calculated for MHI in the LTFV
investigation, as amended and
recalculated pursuant to a remand
redetermination (see Notice of Court
Decision: Large Newspaper Printing
Presses and Components Thereof,
Whether Assembled or Unassembled,
From Japan, 65 FR 31879 (May 19,
2000) (Redetermination on Remand aff’d
Mitsubishi Heavy Indus., Ltd. v. United
States, 275 F.3d 1056 (Fed. Cir. 2001))).1
The rate of 59.67 percent is the highest
rate calculated for any respondent in the
LTFV investigation or the three
subsequent administrative reviews. The
Department’s purpose when selecting an
adverse rate from among the possible
sources of information is to ensure that
the margin is sufficiently adverse ‘‘as to
effectuate the purpose of the facts
available rule to induce respondents to
provide the Department with complete
and accurate information in a timely
manner.’’ See Final Determination of
Sales at Less than Fair Value: Static
Random Access Memory
Semiconductors from Taiwan, 63 FR
8909, 8932 (February 23, 1998). We find
the application of a rate of 59.67 percent
to TKS to be sufficiently adverse in this
case.
Section 776(c) of the Act provides
that, when the Department relies on
secondary information (such as the
petition) in using the facts otherwise
1 For a discussion of the AFA rate selection, see
Memorandum to the File entitled ‘‘AFA Rate
Selection,’’ dated September 6, 2005 (AFA Rate
Memo).
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available, it must, to the extent
practicable, corroborate that information
from independent sources that are
reasonably at its disposal. We have
interpreted ‘‘corroborate’’ to mean that
we will, to the extent practicable,
examine the reliability and relevance of
the information used. See, e.g., Notice of
Preliminary Results of Antidumping
Duty Administrative Review: Foundry
Coke from the People’s Republic of
China, 68 FR 57869, 57874 (October 7,
2003) (unchanged in Final Results of
Antidumping Duty Administrative
Review: Foundry Coke from the People’s
Republic of China, 69 FR 4108 (January
28, 2004)), citing Tapered Roller
Bearings and Parts Thereof, Finished
and Unfinished, from Japan, and
Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and
Components Thereof, from Japan;
Preliminary Results of Antidumping
Duty Administrative Reviews and
Partial Termination of Administrative
Reviews, 61 FR 57391, 57392 (November
6, 1996), and Persulfates from the
People’s Republic of China: Final
Results of Antidumping Duty
Administrative Review, 66 FR 42628,
42628–29 (August 14, 2001).
Unlike other types of information,
such as input costs or selling expenses,
there are no independent sources from
which the Department can derive
calculated dumping margins; the only
source for margins is administrative
determinations. In an administrative
review, if the Department chooses as
facts available a calculated dumping
margin from a prior segment of the
proceeding, it is not necessary to
question the reliability of the margin for
that time period because it was
calculated in accordance with the
statute.
With respect to the relevance aspect
of corroboration, the Department will
consider information reasonably at its
disposal as to whether there are
circumstances that would render a
margin not relevant. Where
circumstances indicate that the selected
margin may not be relevant, the
Department will attempt to find a more
appropriate basis for facts available. See,
e.g., Final Results of Antidumping Duty
Administrative Review: Fresh Cut
Flowers from Mexico, 61 FR 6812, 6814
(February 22, 1996) (where the
Department disregarded the highest
margin as best information available
because the margin was based on
another company’s uncharacteristic
business expense resulting in an
unusually high margin).
We preliminarily determine that the
calculated margin selected as AFA has
probative value because it is based on
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Federal Register / Vol. 70, No. 176 / Tuesday, September 13, 2005 / Notices
verified data from a respondent in the
LTFV investigation. Although this
margin is the highest in the range of
calculated margins, there is no basis to
conclude that it is aberrational or
inappropriate as applied to TKS.
Accordingly, we preliminarily
determine that this rate is an
appropriate rate to be applied in this
review to exports of the subject
merchandise produced by TKS during
the 1997–1998 administrative review
period as facts otherwise available.
Preliminary Results of Changed
Circumstances Review
Because of the information developed
in this changed circumstances review,
the Department preliminarily finds that
the final results of TKS’ 1997–1998
review should be revised from zero to
an AFA rate of 59.67 percent.
Pursuant to 19 CFR 351.222, the
antidumping order was revoked with
respect to TKS prior to the conclusion
of the sunset review. This revocation
was based in part on TKS receiving zero
margins for the 1997–1998, 1998–1999,
and 1999–2000 administrative review
periods. However, this changed
circumstances review preliminarily
finds that the 1997–1998 review was
flawed, based on TKS’ withholding of
information as described above, and
consequently, an AFA rate should be
assigned to TKS for the 1997–1998
review period. Thus, TKS did not have
a zero margin in three consecutive
administrative reviews. As a result of
that preliminary finding, TKS no longer
qualifies for revocation. Because of the
information developed in this changed
circumstances review, the Department
preliminarily determines that the
revocation of the order with respect to
TKS should be rescinded.
Pursuant to section 751(c)(3)(A) of the
Act, the Department sunset the order in
2002 because no domestic producer
stated an interest in continuing the
order. At that time, Goss had ceased
production in the United States and was
unable to participate as a domestic
producer. However, Goss has provided
information in this changed
circumstances review that its cessation
of production at that time was, in large
measure, due to TKS’ improper actions.
Goss contends that ‘‘but for’’ TKS’
actions it would have been able to
continue production at the time of the
sunset review and thus participate in
the sunset review which, in turn, may
have rendered different results.
We preliminarily find that the
changed circumstances review record
supports the fact that TKS’ actions
negatively impacted Goss’ position as a
domestic producer. Goss’ economic
VerDate Aug<18>2005
16:06 Sep 12, 2005
Jkt 205001
consultant prepared a study identifying
up to tens of millions of dollars that
Goss may have lost directly or indirectly
due to TKS’ unfair trade activity. See
Volume V, pages 36–43 and
Attachments 13 through 20 of Goss’
June 9, 2005, submission (resubmitted
on June 29, 2005). Consequently, Goss
likely suffered lost sales and profit as a
result of TKS’ improper actions, which,
in turn, affected Goss’ ability to
continue production at the time of the
sunset review.
Although we are unable to measure
the precise quantitative effect of TKS’
unfair trade practices on Goss’
operations, the record supports the
conclusion that they negatively
impacted Goss’ position as a domestic
producer. While the Department cannot
determine with certitude what would
have happened, but for TKS’ actions,
the evidence of TKS’ unfair trade
practices on the record of this review
warrants adverse assumptions. Given
TKS’ actions in this proceeding, as
revealed by the Goss Int’l case and the
information developed in this review, it
is reasonable to make the adverse
assumption with respect to TKS that,
but for TKS’ actions, Goss would have
been able to continue production at the
time of the sunset review and thus to
participate in the sunset review.
Therefore, based on the evidence on
the record in this changed
circumstances review and the
reasonable adverse assumptions that we
have determined are appropriate, we
also preliminarily determine that, if we
continue to find in our final results that
an AFA rate should be applied to TKS
for the 1997–1998 administrative review
and that TKS should not have been
revoked from the order, a new sunset
review should be initiated following
completion of this changed
circumstances review. If, in the context
of a sunset review, the Department finds
a likelihood of continuation or
recurrence of dumping, the Department
will present this determination to the
ITC. See Asahi Chemical Industry Co.,
Ltd., Plaintiff v. United States, 727 F.
Supp. 625 (CIT 1989).
Public Comment
Interested parties are invited to
comment on these preliminary results,
including comments on how a new
sunset review should be conducted, if
one were to be initiated upon the
completion of this changed
circumstances review. Case briefs may
be submitted by interested parties not
later than 30 days after the date of
publication of this notice. Rebuttal
briefs, limited to the issues raised in the
case briefs, may be filed not later than
PO 00000
Frm 00019
Fmt 4703
Sfmt 4703
54023
five days after the deadline for
submission of case briefs. Any
interested party may request a hearing
within 30 days of publication of this
notice. If requested, a hearing will be
held no later than five days after the
deadline for the submission of rebuttal
briefs, or the first workday thereafter.
Persons interested in attending the
hearing should contact the Department
for the date and time of the hearing.
Interested parties who wish to request
a hearing or to participate if one is
requested, must submit a written
request to the Assistant Secretary for
Import Administration, Room B–099,
within 30 days of the date of publication
of this notice. Requests should contain:
(1) The party’s name, address and
telephone number; (2) the number of
participants; and (3) a list of issues to be
discussed. See 19 CFR 351.310(c).
Issues raised in the hearing will be
limited to those raised in the respective
case briefs. Case briefs from interested
parties and rebuttal briefs, limited to the
issues raised in the respective case
briefs, may be submitted in accordance
with a schedule to be determined.
Parties who submit case briefs or
rebuttal briefs in this proceeding are
requested to submit with each argument
(1) a statement of the issue and (2) a
brief summary of the argument. Parties
are also encouraged to provide a
summary of the arguments not to exceed
five pages and a table of statutes,
regulations, and cases cited.
The Department will publish the final
results of this changed circumstances
review, which will include the results of
its analysis of issues raised in any case
or rebuttal briefs.
This notice of preliminary results of
changed circumstances review is in
accordance with sections 751(b) and
777(i) of the Act and 19 CFR 351.216(d).
Dated: September 6, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import
Administration.
[FR Doc. E5–5000 Filed 9–12–05; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
(A–533–810)
Notice of Final Results of Antidumping
Duty Administrative Review: Stainless
Steel Bar from India
Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: On March 7, 2005, the
Department of Commerce published the
AGENCY:
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]]>Agencies
[Federal Register Volume 70, Number 176 (Tuesday, September 13, 2005)]
[Notices]
[Pages 54019-54023]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E5-5000]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-588-837]
Large Newspaper Printing Presses and Components Thereof, Whether
Assembled or Unassembled, From Japan: Preliminary Results of Changed
Circumstances Review
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On May 10, 2005, the Department of Commerce (the Department)
self-initiated a changed circumstances review to consider information
contained in a recent Federal court decision, Goss International Corp.
v. Tokyo Kikai Seisakusho, Ltd., 321 F.Supp.2d 1039 (N.D. Iowa 2004)
(Goss Int'l). As detailed in our ``Notice of Initiation of the Changed
Circumstances Review,'' evidence was presented in that court proceeding
demonstrating that Tokyo Kikai Seisakusho, Ltd. (TKS) intentionally
provided false information regarding its sale to the Dallas Morning
News (DMN), the subject of the Department's 1997-1998 administrative
review. After consideration of comments and information provided for
this review, we preliminarily determine that it is appropriate to take
the following course of action in order to protect the integrity of the
Department's proceedings: (1) Revise TKS' margin for the 1997-1998
review to apply a rate of 59.67 percent based on adverse facts
available; (2) rescind the revocation of the antidumping duty order for
TKS because TKS no longer qualifies for revocation based on three
consecutive administrative reviews resulting in zero dumping margins;
and (3) reconsider the revocation of the order under the sunset review
provision of the statute (section 751(c) of the Tariff Act of 1930, as
amended (the Act)). If these preliminary results are confirmed in the
final results, the Department will revise TKS' margin for the 1997-1998
review, rescind the revocation of the antidumping duty order for TKS,
and initiate a new sunset review to reconsider the revocation of this
order. Interested parties are invited to comment on these preliminary
results.
EFFECTIVE DATE: September 13, 2005.
FOR FURTHER INFORMATION CONTACT: David Goldberger or Kate Johnson,
Import Administration, International Trade Administration, U.S.
Department of Commerce, 14th Street and Constitution Avenue, NW.,
Washington, DC 20230; telephone (202) 482-4136 and (202) 482-4929,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On September 4, 1996, the Department published in the Federal
Register an amended final determination and antidumping duty order on
large newspaper printing presses and components thereof, whether
assembled or unassembled, from Japan (LNPPs) (61 FR 46621) (Amended
Final and Order). One of the producers/exporters covered by the order
was TKS. Its rate from the less-than-fair-value investigation was 56.28
percent. The Department conducted administrative reviews of TKS for the
following periods: September 1, 1997-August 31, 1998, September 1,
1998-August 31, 1999, and September 1, 1999-August 31, 2000. The
administrative review for the 2000-2001 review period was rescinded. A
zero margin was found for TKS in the 1997-1998, 1998-1999, and 1999-
2000 review periods. On January 16, 2002, the antidumping duty order
was revoked with respect to TKS (see Large Newspaper Printing Presses
and Components Thereof, Whether Assembled or Unassembled, From Japan:
Final Results of Antidumping
[[Page 54020]]
Duty Administrative Review and Revocation in Part, 67 FR 2190) based on
the three consecutive reviews resulting in zero dumping margins (see 19
CFR 351.222(b)). On February 25, 2002, the Department revoked the
antidumping duty order under a five-year sunset review pursuant to
section 751(c)(3)(A) of the Act because the only domestic interested
party in the sunset review, Goss International Corporation (Goss),
withdrew its participation and thus its interest in the review. See
Large Newspaper Printing Presses and Components Thereof, Whether
Assembled or Unassembled, from Japan (A-588-837) and Germany (A-428-
821): Notice of Final Results of Five-Year Sunset Reviews and
Revocation of Antidumping Duty Orders, 67 FR 8522 (February 25, 2002).
On May 5, 2005, the Department self-initiated a changed
circumstances review to consider information contained in a recent
Federal court decision, Goss Int'l. See Large Newspaper Printing
Presses and Components Thereof, Whether Assembled or Unassembled, from
Japan: Initiation of Changed Circumstances Review, 70 FR 24524 (May 10,
2005). In that court proceeding, evidence was presented demonstrating
that TKS provided false information regarding its sale to the DMN, the
sale that was the subject of the Department's 1997-1998 administrative
review. The Department placed the Goss Int'l decision and documents
from the Goss Int'l record on the public record of this changed
circumstances review in separate memoranda.
On June 9, 2005, Goss, TKS, and Mitsubishi Heavy Industries, Ltd.
(MHI) provided comments in response to the Department's request for
comments in the notice of initiation of this changed circumstances
review. Goss' comments included documents from the Goss Int'l record
and from the Department's administrative reviews of the antidumping
duty order. On June 20, 2005, Goss and TKS provided comments in
response to the parties' respective June 9, 2005, comments.
On July 19, 2005, TKS requested that the Department seek further
information about Goss' claim that it is currently a domestic
manufacturer of LNPPs. Goss responded to TKS' letter in an August 11,
2005, submission.
Scope of the Changed Circumstances Review
The products covered by this changed circumstances review are large
newspaper printing presses, including press systems, press additions
and press components, whether assembled or unassembled, whether
complete or incomplete, that are capable of printing or otherwise
manipulating a roll of paper more than two pages across. A page is
defined as a newspaper broadsheet page in which the lines of type are
printed perpendicular to the running of the direction of the paper or a
newspaper tabloid page with lines of type parallel to the running of
the direction of the paper.
In addition to press systems, the scope of the review includes the
five press system components. They are: (1) a printing unit, which is
any component that prints in monocolor, spot color and/or process
(full) color; (2) a reel tension paster (RTP), which is any component
that feeds a roll of paper more than two newspaper broadsheet pages in
width into a subject printing unit; (3) a folder, which is a module or
combination of modules capable of cutting, folding, and/or delivering
the paper from a roll or rolls of newspaper broadsheet paper more than
two pages in width into a newspaper format; (4) conveyance and access
apparatus capable of manipulating a roll of paper more than two
newspaper broadsheet pages across through the production process and
which provides structural support and access; and (5) a computerized
control system, which is any computer equipment and/or software
designed specifically to control, monitor, adjust, and coordinate the
functions and operations of large newspaper printing presses or press
components.
A press addition is comprised of a union of one or more of the
press components defined above and the equipment necessary to integrate
such components into an existing press system.
Because of their size, large newspaper printing press systems,
press additions, and press components are typically shipped either
partially assembled or unassembled, complete or incomplete, and are
assembled and/or completed prior to and/or during the installation
process in the United States. Any of the five components, or collection
of components, the use of which is to fulfill a contract for large
newspaper printing press systems, press additions, or press components,
regardless of degree of assembly and/or degree of combination with non-
subject elements before or after importation, is included in the scope
of this review. Also included in the scope are elements of a LNPP
system, addition or component, which taken altogether, constitute at
least 50 percent of the cost of manufacture of any of the five major
LNPP components of which they are a part.
For purposes of the review, the following definitions apply
irrespective of any different definition that may be found in customs
rulings, U.S. Customs law or the Harmonized Tariff Schedule of the
United States (HTSUS): (1) the term ``unassembled'' means fully or
partially unassembled or disassembled; and (2) the term ``incomplete''
means lacking one or more elements with which the LNPP is intended to
be equipped in order to fulfill a contract for a LNPP system, addition
or component.
This scope does not cover spare or replacement parts. Spare or
replacement parts imported pursuant to a LNPP contract, which are not
integral to the original start-up and operation of the LNPP, and are
separately identified and valued in a LNPP contract, whether or not
shipped in combination with covered merchandise, are excluded from the
scope of this review. Used presses are also not subject to this scope.
Used presses are those that have been previously sold in an arm's-
length transaction to a purchaser that used them to produce newspapers
in the ordinary course of business.
Also excluded from the scope, in accordance with the Department's
determination in a previous changed circumstances review of the
antidumping duty order which resulted in the partial revocation of the
order with respect to certain merchandise, are elements and components
of LNPP systems, and additions thereto, which feature a 22-inch cut-
off, 50-inch web width and a rated speed no greater than 75,000 copies
per hour. See Large Newspaper Printing Presses Components Thereof,
Whether Assembled or Unassembled, from Japan: Final Results of Changed
Circumstances Antidumping Duty Administrative Review and Intent to
Revoke Antidumping Duty Order, In Part, 64 FR 72315 (December 27,
1999). In addition to the specifications set out in this paragraph, all
of which must be met in order for the product to be excluded from the
scope of the review, the product must also meet all of the
specifications detailed in the five numbered sections following this
paragraph. If one or more of these criteria is not fulfilled, the
product is not excluded from the scope of the review.
1. Printing Unit: A printing unit which is a color keyless blanket-
to-blanket tower unit with a fixed gain infeed and fixed gain outfeed,
with a rated speed no greater than 75,000 copies per hour, which
includes the following features:
[[Page 54021]]
Each tower consisting of four levels, one or more of which must be
populated.
Plate cylinders which contain slot lock-ups and blanket cylinders
which contain reel rod lock-ups both of which are of solid carbon steel
with nickel plating and with bearers at both ends which are configured
in-line with bearers of other cylinders.
Keyless inking system which consists of a passive feed ink delivery
system, an eight roller ink train, and a non-anilox and non-porous
metering roller.
The dampener system which consists of a two nozzle per page
spraybar and two roller dampener with one chrome drum and one form
roller.
The equipment contained in the color keyless ink delivery system is
designed to achieve a constant, uniform feed of ink film across the
cylinder without ink keys. This system requires use of keyless ink
which accepts greater water content.
2. Folder: A module which is a double 3:2 rotary folder with 160
pages collect capability and double (over and under) delivery, with a
cut-off length of 22 inches. The upper section consists of three-high
double formers (total of 6) with six sets of nipping rollers.
3. RTP: A component which is of the two-arm design with core drives
and core brakes, designed for 50 inch diameter rolls; and arranged in
the press line in the back-to-back configuration (left and right hand
load pairs).
4. Conveyance and Access Apparatus: Conveyance and access apparatus
capable of manipulating a roll of paper more than two newspaper
broadsheets across through the production process, and a drive system
which is of conventional shafted design.
5. Computerized Control System: A computerized control system,
which is any computer equipment and/or software designed specifically
to control, monitor, adjust, and coordinate the functions and
operations of large newspaper printing presses or press components.
Further, this review covers all current and future printing
technologies capable of printing newspapers, including, but not limited
to, lithographic (offset or direct), flexographic, and letterpress
systems. The products covered by this review are imported into the
United States under subheadings 8443.11.10, 8443.11.50, 8443.30.00,
8443.59.50, 8443.60.00, and 8443.90.50 of the HTSUS. Large newspaper
printing presses may also enter under HTSUS subheadings 8443.21.00 and
8443.40.00. Large newspaper printing press computerized control systems
may enter under HTSUS subheadings 8471.49.10, 8471.49.21, 8471.49.26,
8471.50.40, 8471.50.80, and 8537.10.90. Although the HTSUS subheadings
are provided for convenience and customs purposes, our written
description of the scope of the review is dispositive.
Use of Facts Otherwise Available
As noted above in the ``Background'' section, the Department has
examined documents from Goss Int'l and from the 1997-1998
administrative review, all of which have been placed on the record of
this review, and has determined that TKS provided false information in
the context of the 1997-1998 administrative review.
Information on the record of this changed circumstances review
clearly demonstrates that TKS granted DMN a $1 million rebate and
credits for spare parts tied to the sale reviewed, yet it did not
disclose this information in its questionnaire responses submitted in
the 1997-1998 administrative review. TKS was specifically asked in the
questionnaire issued in the 1997-1998 administrative review whether it
had granted any discounts or rebates in connection with the subject
sale. TKS unequivocally stated that ``TKS did not provide any discounts
to the contract price,'' and ``TKS did not provide any rebates to the
contract price.'' See pages 16 and 17, respectively, of the March 29,
1999, Section C response (included on the record of this review as an
attachment to the Memorandum to the File dated August 23, 2005, which
also includes the certifications from the responsible TKS official and
TKS' counsel that the information in the response was accurate and
complete). The changed circumstances review record shows that TKS did
in fact grant rebates and credits for additional supplies but
intentionally failed to disclose them. Specifically, TKS' undisclosed
rebate to the DMN is documented in fax correspondence between TKS and
its U.S. affiliate included as Exhibits 23 and 26 in Volume III of
Goss' June 9, 2005, submission; DMN's invoice to TKS for the $1
million, included as Exhibit 27 in Volume III of Goss' June 9, 2005,
submission; and TKS' application for a telegraphic transfer of funds,
included as Attachment 30 of the Department's May 5, 2005, Memorandum
to the File (May Memo) (also in Exhibit 28 of Volume III of Goss' June
9, 2005, submission). This payment is also discussed in two memoranda
and a deposition by the DMN's production manager (Exhibit 31 in Volume
III of Goss' June 9, 2005, submission, and Attachments 34 and 41,
respectively, of the May Memo), and in a deposition by a former TKS
official now at the DMN (Attachment 40 of the May Memo). In the same
May Memo depositions, the DMN officials also attest to a total of $1.2
million of credits granted to the DMN in consideration of the LNPP sale
to the DMN. See, also, Goss' discussion of the payment and credits at
Volume I, page 5, and Volume II, pages 5-6 of its June 9, 2005,
submission, as well as Goss Int'l at pages 8-9.
Because TKS did not provide accurate and complete information in
its questionnaire responses, we preliminarily determine that the
application of facts available is appropriate, pursuant to section
776(a)(2) of the Act. 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 under this title.''
Once we determine that the use of facts available is warranted,
section 776(b) of the Act permits the Department to determine whether
the application of an adverse inference is also warranted. In making
this additional determination, the Department may find that ``[a
respondent] has failed to cooperate by not acting to the best of its
ability to comply with a request for information.'' See section 776(b)
of the Act.
As discussed above, a comparison of the Goss Int'l documents and
the record from the 1997-1998 review indicates that TKS failed to
disclose its rebate and credit arrangements associated with its sale to
the DMN, TKS' sole sale in the 1997-1998 review, and falsely reported
to the Department that no such rebate or credits existed. The
Department is reexamining TKS' margin in the 1997-1998 review in the
context of this changed circumstances review pursuant to its inherent
authority to protect the integrity of its proceedings. As a general
matter, an agency may act to protect the integrity of its proceedings.
See Elkem Metals Co. v. United States, 193 F. Supp. 2d 1314 (CIT 2002)
(Elkem Metals); Alberta Gas Chemicals, Ltd. v. Celanese Corp., 650 F.2d
9, 12-13 (2d Cir. 1981); Touche Ross & Co. v. SEC, 609 F.2d 570, 582
(D.C. Cir. 1979). In
[[Page 54022]]
Elkem Metals, the Court of International Trade (CIT) affirmed the
International Trade Commission's (ITC's) reopening of an affirmative
injury determination on ferrosilicon from various countries because of
fraudulent activity, even though the ITC did not have explicit
statutory authority to do so. In the reopened investigation, the ITC
reversed its final affirmative determination of injury after foreign
producers petitioned to reopen the investigation; the foreign producers
had based their petition on a ``recently disclosed price-fixing
conspiracy among some domestic manufacturers, and its consequent
distortion of the price data presented to the ITC during its original
material injury investigations.'' See Elkem Metals, 193 F. Supp.2d at
1317. This instant proceeding is similar to Elkem Metals because a
Federal court has determined that TKS concealed rebates and other
relevant information affecting the sales price information reported to
the Department in the context of the antidumping duty review, and
because, upon the Department's own examination of the documents, as
discussed above, the Department determines that TKS failed to disclose
requested information and provided false statements to the Department
about the DMN sale. There was only one sale examined in the 1997-1998
review; therefore, false and incomplete information about the DMN sale
discredits the findings of the entire review.
Because TKS provided false and incomplete information in the
context of its only sale in the 1997-1998 administrative review, we
find that, in accordance with sections 776(a)(2)(A) and (C) of the Act,
the use of total facts available is appropriate. See, e.g., Freshwater
Crawfish Tail Meat From the People's Republic of China: Notice of Final
Results of Antidumping Duty Administrative Review and Final Rescission
of Review, in Part, 69 FR 7193 (February 13, 2004) and accompanying
Issues and Decision Memorandum at Comment 2 (Freshwater Crawfish Tail
Meat Decision Memo) (aff'd Shanghai Taoen Int'l Trading Co. v. United
States, No. 04-00125, Slip. Op. 05-22 (CIT Feb. 17, 2005)); Notice of
Final Determination of Sales at Less Than Fair Value and Final Negative
Critical Circumstances: Carbon and Certain Alloy Steel Wire Rod from
Brazil, 67 FR 55792, 55794 (August 30, 2002); Porcelain-on-Steel
Cooking Ware from the People's Republic of China; Final Results of
Antidumping Administrative Review, 62 FR 32757, 32761, at Comment 8
(June 17, 1997) (Porcelain-on-Steel Cooking Ware).
Moreover, TKS' failure to provide accurate and complete information
about the DMN sale, along with its false statement in its questionnaire
response concerning rebates and other concessions to price, demonstrate
that TKS did not respond truthfully and completely to the Department's
requests for information. Accordingly, TKS did not act to the best of
its ability as required by section 776(b) of the Act. Consequently, we
have made an adverse inference in determining a dumping margin for TKS.
See Porcelain-on-Steel Cooking Ware, 62 FR at 32761; Freshwater
Crawfish Tail Meat Decision Memo at Comment 2.
Section 776(b) of the Act authorizes the Department to use as
adverse facts available (AFA) information derived from the petition,
the final determination from the less-than-fair-value (LTFV)
investigation, a previous administrative review, or any other
information placed on the record. As AFA, we have preliminarily
assigned to TKS the rate of 59.67 percent, which is the rate calculated
for MHI in the LTFV investigation, as amended and recalculated pursuant
to a remand redetermination (see Notice of Court Decision: Large
Newspaper Printing Presses and Components Thereof, Whether Assembled or
Unassembled, From Japan, 65 FR 31879 (May 19, 2000) (Redetermination on
Remand aff'd Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d
1056 (Fed. Cir. 2001))).\1\ The rate of 59.67 percent is the highest
rate calculated for any respondent in the LTFV investigation or the
three subsequent administrative reviews. The Department's purpose when
selecting an adverse rate from among the possible sources of
information is to ensure that the margin is sufficiently adverse ``as
to effectuate the purpose of the facts available rule to induce
respondents to provide the Department with complete and accurate
information in a timely manner.'' See Final Determination of Sales at
Less than Fair Value: Static Random Access Memory Semiconductors from
Taiwan, 63 FR 8909, 8932 (February 23, 1998). We find the application
of a rate of 59.67 percent to TKS to be sufficiently adverse in this
case.
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\1\ For a discussion of the AFA rate selection, see Memorandum
to the File entitled ``AFA Rate Selection,'' dated September 6, 2005
(AFA Rate Memo).
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Section 776(c) of the Act provides that, when the Department relies
on secondary information (such as the petition) in using the facts
otherwise available, it must, to the extent practicable, corroborate
that information from independent sources that are reasonably at its
disposal. We have interpreted ``corroborate'' to mean that we will, to
the extent practicable, examine the reliability and relevance of the
information used. See, e.g., Notice of Preliminary Results of
Antidumping Duty Administrative Review: Foundry Coke from the People's
Republic of China, 68 FR 57869, 57874 (October 7, 2003) (unchanged in
Final Results of Antidumping Duty Administrative Review: Foundry Coke
from the People's Republic of China, 69 FR 4108 (January 28, 2004)),
citing Tapered Roller Bearings and Parts Thereof, Finished and
Unfinished, from Japan, and Tapered Roller Bearings, Four Inches or
Less in Outside Diameter, and Components Thereof, from Japan;
Preliminary Results of Antidumping Duty Administrative Reviews and
Partial Termination of Administrative Reviews, 61 FR 57391, 57392
(November 6, 1996), and Persulfates from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review, 66 FR
42628, 42628-29 (August 14, 2001).
Unlike other types of information, such as input costs or selling
expenses, there are no independent sources from which the Department
can derive calculated dumping margins; the only source for margins is
administrative determinations. In an administrative review, if the
Department chooses as facts available a calculated dumping margin from
a prior segment of the proceeding, it is not necessary to question the
reliability of the margin for that time period because it was
calculated in accordance with the statute.
With respect to the relevance aspect of corroboration, the
Department will consider information reasonably at its disposal as to
whether there are circumstances that would render a margin not
relevant. Where circumstances indicate that the selected margin may not
be relevant, the Department will attempt to find a more appropriate
basis for facts available. See, e.g., Final Results of Antidumping Duty
Administrative Review: Fresh Cut Flowers from Mexico, 61 FR 6812, 6814
(February 22, 1996) (where the Department disregarded the highest
margin as best information available because the margin was based on
another company's uncharacteristic business expense resulting in an
unusually high margin).
We preliminarily determine that the calculated margin selected as
AFA has probative value because it is based on
[[Page 54023]]
verified data from a respondent in the LTFV investigation. Although
this margin is the highest in the range of calculated margins, there is
no basis to conclude that it is aberrational or inappropriate as
applied to TKS. Accordingly, we preliminarily determine that this rate
is an appropriate rate to be applied in this review to exports of the
subject merchandise produced by TKS during the 1997-1998 administrative
review period as facts otherwise available.
Preliminary Results of Changed Circumstances Review
Because of the information developed in this changed circumstances
review, the Department preliminarily finds that the final results of
TKS' 1997-1998 review should be revised from zero to an AFA rate of
59.67 percent.
Pursuant to 19 CFR 351.222, the antidumping order was revoked with
respect to TKS prior to the conclusion of the sunset review. This
revocation was based in part on TKS receiving zero margins for the
1997-1998, 1998-1999, and 1999-2000 administrative review periods.
However, this changed circumstances review preliminarily finds that the
1997-1998 review was flawed, based on TKS' withholding of information
as described above, and consequently, an AFA rate should be assigned to
TKS for the 1997-1998 review period. Thus, TKS did not have a zero
margin in three consecutive administrative reviews. As a result of that
preliminary finding, TKS no longer qualifies for revocation. Because of
the information developed in this changed circumstances review, the
Department preliminarily determines that the revocation of the order
with respect to TKS should be rescinded.
Pursuant to section 751(c)(3)(A) of the Act, the Department sunset
the order in 2002 because no domestic producer stated an interest in
continuing the order. At that time, Goss had ceased production in the
United States and was unable to participate as a domestic producer.
However, Goss has provided information in this changed circumstances
review that its cessation of production at that time was, in large
measure, due to TKS' improper actions. Goss contends that ``but for''
TKS' actions it would have been able to continue production at the time
of the sunset review and thus participate in the sunset review which,
in turn, may have rendered different results.
We preliminarily find that the changed circumstances review record
supports the fact that TKS' actions negatively impacted Goss' position
as a domestic producer. Goss' economic consultant prepared a study
identifying up to tens of millions of dollars that Goss may have lost
directly or indirectly due to TKS' unfair trade activity. See Volume V,
pages 36-43 and Attachments 13 through 20 of Goss' June 9, 2005,
submission (resubmitted on June 29, 2005). Consequently, Goss likely
suffered lost sales and profit as a result of TKS' improper actions,
which, in turn, affected Goss' ability to continue production at the
time of the sunset review.
Although we are unable to measure the precise quantitative effect
of TKS' unfair trade practices on Goss' operations, the record supports
the conclusion that they negatively impacted Goss' position as a
domestic producer. While the Department cannot determine with certitude
what would have happened, but for TKS' actions, the evidence of TKS'
unfair trade practices on the record of this review warrants adverse
assumptions. Given TKS' actions in this proceeding, as revealed by the
Goss Int'l case and the information developed in this review, it is
reasonable to make the adverse assumption with respect to TKS that, but
for TKS' actions, Goss would have been able to continue production at
the time of the sunset review and thus to participate in the sunset
review.
Therefore, based on the evidence on the record in this changed
circumstances review and the reasonable adverse assumptions that we
have determined are appropriate, we also preliminarily determine that,
if we continue to find in our final results that an AFA rate should be
applied to TKS for the 1997-1998 administrative review and that TKS
should not have been revoked from the order, a new sunset review should
be initiated following completion of this changed circumstances review.
If, in the context of a sunset review, the Department finds a
likelihood of continuation or recurrence of dumping, the Department
will present this determination to the ITC. See Asahi Chemical Industry
Co., Ltd., Plaintiff v. United States, 727 F. Supp. 625 (CIT 1989).
Public Comment
Interested parties are invited to comment on these preliminary
results, including comments on how a new sunset review should be
conducted, if one were to be initiated upon the completion of this
changed circumstances review. Case briefs may be submitted by
interested parties not later than 30 days after the date of publication
of this notice. Rebuttal briefs, limited to the issues raised in the
case briefs, may be filed not later than five days after the deadline
for submission of case briefs. Any interested party may request a
hearing within 30 days of publication of this notice. If requested, a
hearing will be held no later than five days after the deadline for the
submission of rebuttal briefs, or the first workday thereafter. Persons
interested in attending the hearing should contact the Department for
the date and time of the hearing.
Interested parties who wish to request a hearing or to participate
if one is requested, must submit a written request to the Assistant
Secretary for Import Administration, Room B-099, within 30 days of the
date of publication of this notice. Requests should contain: (1) The
party's name, address and telephone number; (2) the number of
participants; and (3) a list of issues to be discussed. See 19 CFR
351.310(c).
Issues raised in the hearing will be limited to those raised in the
respective case briefs. Case briefs from interested parties and
rebuttal briefs, limited to the issues raised in the respective case
briefs, may be submitted in accordance with a schedule to be
determined. Parties who submit case briefs or rebuttal briefs in this
proceeding are requested to submit with each argument (1) a statement
of the issue and (2) a brief summary of the argument. Parties are also
encouraged to provide a summary of the arguments not to exceed five
pages and a table of statutes, regulations, and cases cited.
The Department will publish the final results of this changed
circumstances review, which will include the results of its analysis of
issues raised in any case or rebuttal briefs.
This notice of preliminary results of changed circumstances review
is in accordance with sections 751(b) and 777(i) of the Act and 19 CFR
351.216(d).
Dated: September 6, 2005.
Joseph A. Spetrini,
Acting Assistant Secretary for Import Administration.
[FR Doc. E5-5000 Filed 9-12-05; 8:45 am]
BILLING CODE 3510-DS-P
